Her Majesty the Queen - v. -, 2014 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 043 Date: February 28, 2014 Information: 24461372, 24504073 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Russell J Washkowsky Appearing: B. Herder For the Crown M. Owens For the Accused JUDGMENT R.D.

JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged on separate Informations with common assault on his wife, Bonnie Washkowsky, March 25, 2013 and as well on April 20, 2013 with breaching his Undertaking to abstain from going to NE 12-37-23 W2nd (family acreage). A further charge of breaching his Undertaking by consuming alcohol was judicially stayed on the trial date.

[ 2 ] The Crown called the complainant as well as the two investigating RCMP officers attending to the scene, Constables Charabin and Olsen. [ 3 ] The accused testified on his own behalf denying the assault and asserting self-defence as justification for any physical contact regarding the complainant. On the breach of Undertaking charge the accused raised the defence of mistake of fact concerning the necessary mens rea to prove the offence. II ISSUES

a) Credibility of the principal witnesses for the Crown and Defence concerning the charge of common assault;

b) Application of the principles of R. v. W.(D.) [1] ;

c) Whether the principles of self-defence apply and if so, whether the Crown has disproved the elements of self-defence beyond a reasonable doubt;

d) Whether a reasonable doubt has been raised concerning the mens rea of the breach of Undertaking charge not to be at or near the family acreage. III DETERMINATION

a) Credibility of the principal witnesses for the Crown and Defence concerning the charge of common assault; [ 4 ] The assault charge arose as a result of a domestic altercation between the parties at their acreage residence south of Humboldt on March 25, 2013. The complainant wife, according to her evidence, sustained two blows with a closed fist to her left ear causing redness, swelling and some bleeding.

Additionally, she testified that she was pulled to her feet from a computer chair by her hair causing a large clump to uproot. [ 5 ] The accused denied pulling her up by the hair and claims it was the complainant who struck him first causing a scrape to the top of his scalp. In repelling the wife’s actions in self-defence he stated he pushed her back and that his hand may well have glanced off her head striking her ear. [ 6 ] The accused is a double amputee having lost his left arm and leg in an industrial electrocution accident many years ago.

He stands 5’11” with a large build and was described by the complainant as being “very powerful”. The complainant wife stands 5’4” tall and appeared to be of average or medium build. [ 7 ] The physical altercation occurred in the office or computer room of the residence shortly after the presentation of the evening meal. Prior to that, tensions had arisen between the couple precipitated by the failure of the husband to place a prepared turkey in the oven earlier in the afternoon. The complainant called him and he acknowledged he had forgotten and would bring ribs home to barbecue.

When he arrived the complainant immediately knew he had been drinking evidenced by the alcohol odour and his demeanour. The wife acknowledged she was annoyed at the delay for the meal particularly because their daughters aged, 10 and 7, were very hungry. Thereafter the accused stated he was going to jump on his quad and retrieve a couple of beers from his shop to barbecue with. This prompted his wife to state “haven’t you had enough already?” The accused then proceeded to cook the ribs during which time he testified he drank the two beers.

[ 8 ] When the accused brought the ribs in for the meal the wife testified he was verbally abusive toward her calling her very insulting names in front of the children, including “fucking bitch” and “lazy” and telling her to “get the fuck lost and stay in Battleford” (where sisters and family live) and that “I better not think I was getting anything from him”. She described his mood as very angry at this point.

The husband testified they were both name calling at this juncture which the wife denied stating she only said “fine” so as not to provoke him. [ 9 ] The complainant stated that she then got up from the table and went to the office to go on the family computer and that the accused followed her in shortly thereafter. The complainant described him as having “quite a wild look on his face” with “big eyes” and that he was shouting one word insults such as “bitch, moron, whore, puke”.

She began writing some of these words down at which point the accused would crumple the paper and throw each in turn at her head. [ 10 ] The accused acknowledged in cross-examination that he followed the complainant into the office, called her names and threw crumpled paper into her lap, as evidenced in the following exchanges from the trial transcript: Transcript Page 254, Lines 7 - 21 Q: Okay. Alright. Fair enough. And I think you were quite fair. You know, you acknowledged that she was calling you names but you were also calling her names. You said you were calling her a bitch. A: Yeah. Q: Yeah.

Were you calling her a whore? A: I might have. Q: Or a loser? A: Yeah. Q: Were you calling her a moron? A: That I don’t know. Q: Okay because that’s what she’s written on the exhibit that you were shown, is a moron. A: It’s possible. Transcript Page 255, Lines 10 - 26, Page 256, Lines 1 - 3 Q: But you agree with me that she left and walked away and you followed her. A: Yes. Q: Okay. So you chose to continue this argument then? A: Yes. Q: Okay. Is that because you were angry? A: Yeah. Q: And you weren’t going to let it go, were you? A: Yeah, I would have. Q: You would have, but you didn’t. You followed her, right?

A: Yeah. Q: Okay. Alright. So you didn’t let it go and you said you were angry to the point where you actually crumpled up paper and threw

it at her. A: Yes. Q: Yeah. And you hit her with the paper, didn’t you. A: In the lap, yeah. [ 11 ] The account of what next occurred forms the crux of the assault charge and is where the evidence of each fundamentally diverge. The wife asserts she was pulled to her feet from her chair by her hair while the accused was calling her “a fucking bitch”. He then struck her two successive blows with his right fist to her left ear area. As the accused was about to strike her again he lost his balance, slipped and fell toward her pulling her by the hair to the floor on top of him.

He then let go of her hair to try and get up at which time she was able to scramble up and off him and exit the office. At no time throughout did she strike him, she testified. [ 12 ] The accused’s version is that the complainant stood up from her chair and while facing him struck the first blow to the top of his head causing a large diagonal abrasion.

He stated he could see the punch coming and reacted, not by attempting to block it or turn or move away, but rather by bending forward toward her just prior to the strike. [2] He also testified he was wearing a ball cap at the time which flew off when he was punched. In cross-examination, in response to a question as to how he could have received the abrasion on the top of his head if covered by the ball cap, he stated he was wearing it quite a ways back on his head and that the blow must have gone under the brim.

When queried as to whether the complainant caused this and not something else, he was adamant it was the complainant. He then stated he reacted to this punch by pushing the complainant back twice and that the second time “he just barely made contact” and “could feel his fingers go off the side of her head”. [ 13 ] The theory of the defence as to how this blow and consequent abrasion took place emerged early in the cross-examination of the complainant: Transcript Page 117, Lines 12 - 15 Q: Okay. It’s at that stage - maybe this helps your memory. It’s at that stage you physically took a swing at his head. A: No.

Transcript Page 118, Lines 9 - 21 Q: That’s how he ended up with that mark, correct? A: No. Q: Were you wearing any rings at the time? A: Wedding band. Q: Okay. Which hand? A: Left. Q: Okay. And isn’t it interesting that the scratch on top the top of his head starts at the bottom of - his bottom right and goes to the left, correct, as if consistent with a left-handed swing? A: I have no idea. I don’t know. Q: Alright. You don’t know. Alright. A: I did not hit Russell. And further in the cross-examination of the investigating officer, Constable Charabin:

Transcript Page 157, Line 9 - 19 Q: Okay. And why did you take those photographs? A: When we dropped him off at the residence he had told the other officer that he had an injury on his head, so we took them. Q: Yeah. And you can see the injury in both these photos. A: Yes. Q: And it is essentially a cut on the top of his head that goes from - if you’re facing him, from left to right, correct? A: More or less, yeah. [ 14 ] As indicated, the complainant denied striking the accused at all.

Her evidence rather was that it appeared to her after the incident while observing the accused outside, he bent down in the vicinity of a cast iron fry pan used for a dog dish and thereafter struck himself with it. She conceded she did not actually see him strike this blow. [ 15 ] In any event, it was the accused himself in his examination-in-chief which laid this notion to rest i.e. that the complainant struck him with her left hand with her wedding band thereby causing the scalp injury: Transcript Page 244, Line 2 - 7 A: I see her go to throw a punch. Q: Which hand?

A: It was her right hand actually. [ 16 ] After a careful review of all of the evidence, the Court rejects the version of the accused as to how the injuries were inflicted to the complainant and to himself. Rather, the Court accepts the evidence of the complainant as to the manner and nature of the alleged assault upon her by the accused. The Court reaches this conclusion based upon the following:

a) The accused had been consuming alcohol and by his own admission was angry toward the complainant. There is no evidence or suggestion correspondingly that the complainant had consumed alcohol. Further, the complainant denied arguing with the accused which is corroborated by the uncontroverted evidence that she attempted to remove herself from the situation by relocating to the computer room;

b) The accused admitted to following the complainant into the computer room to continue arguing with her;

c) The accused admitted to calling the complainant names and crumpling papers the complainant was writing on and throwing them at her, albeit according to his evidence, into her lap rather than her head. This is not a significant difference in the Court’s view;

d) The police testified to seeing the crumpled paper on the floor which was subsequently tendered into evidence with the words “moron” and “loozer” (sic) written upon them;

e) The accused is much taller and physically larger than the complainant. He described seeing the complainant about to strike him and simply then bent down toward her to avoid being hit in the face rather than turning away or attempting to block the blow. This is not a plausible explanation of what would have occurred since, if anything, this manoeuvre would be more likely to cause him to be struck in the face given their height disparities;

f) The photographic evidence and corroborating descriptions of the attending police officers of the redness, swelling and bleeding of thecomplainant’s left ear area are more consistent with that of physical blows than just barely touching her and feeling his fingers go off theside of her head as described by the accused;

g) The accused appeared to be and was described by the complainant as “very powerful”. Although a double amputee, there is nothingin the complainant’s evidence which would be inconsistent with the ability to inflict the injuries in the manner she described;

h) Upon a careful review of the photographic evidence, the Court is inclined to agree with the notion that the injury to the accused’sscalp appears to run diagonally from lower left to upper right. This would be consistent with a blow going from left to right i.e. with theleft hand of one facing the victim. The accused stated emphatically it was the complainant who caused this abrasion when she struckhim, which she denied. He also testified however that she struck him with her right hand which would be incompatible with the physicalevidence.

Further, the complainant testified in chief that she wore a ring only on her left hand (wedding band) which was not challengedin cross-examination. The Court notes that the angle of the injury would also be consistent with the victim himself taking something inhis own right hand and inflicting the blow - both angles being identical. Upon observation, the cast fry pan has a narrow ridge whichcould well have accomplished this task, however, the evidence is not conclusive enough to find that this in fact occurred. What theCourt can conclude however is that the complainant did not cause this injury to the accused;

i) The complainant testified that the accused pulled her up by the hair initially and that he had grasped onto her hair when he fell down. A photograph was tendered by her taken subsequently by her hairdresser evidencing the spot on her scalp where it appears hair had beenuprooted. Defence counsel stressed in argument that one would have expected hair to be found at the scene if this were so. The policewitnesses testified that they did not see any hairs however that they did not search for any such hair either.

Constable Charabin testifiedthat the complainant’s hair was dishevelled and appeared in one spot to have been pulled up suggesting that hair could well have beenuprooted as per the photograph tendered into evidence.

b) Application of the principles of R. v. W.(D.); [17] Having rejected the evidence of the accused regarding his version as to how the injuries to himself and the complainant wereinflicted, the Court must now determine upon a review of all of the evidence presented, whether there remains reasonable doubt as to theaccused’s guilt. It was stated thus by Mr. Justice Cory in R. v.

W.(D.), supra, at para. 28: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [18] The

interpretation and proper implementation of this formula in practice by a trial judge was described by Code, J. in the recent decision of R. v. Edwards[3], commencing at para. 18: 18 Because Cory, J. was setting out a model jury charge, where the judge does not know what conclusions the trier of fact will reach onthe issue of credibility, the instruction leaves open three quite different findings that a trier might make in relation to credibility. Theroot cases, on which W.D. is based, are R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), R. v.Nimchuk (1977), (ON CA), 33 C.C.C. (2d) 209 (Ont.

C.A.), and R. v. Morin (1988), (SCC), 44 C.C.C.(3d) 193 (S.C.C.). In Challice, supra, at 556-7, Morden J.A. (as he then was) gave the judgment of the Court and referred to the threefindings that a trier can arrive at in a case where there is a credibility dispute on a “vital issue”. He described the three options as “totalacceptance, total rejection, or something in between”. The middle ground, or “something in between”, was described as “being unable toresolve the conflicting evidence and, accordingly, being left in a state of reasonable doubt”.

Morden J.A. was relying, in this regard, onMartin J.A.’s earlier judgment on behalf of the Court in Nimchuk, supra at 210, where he stated that complete acceptance of thecomplainant’s evidence or complete acceptance of the accused’s evidence were not only options when a trier of fact is faced withconflicting accounts. Martin J.A. held that there was another “choice” and he put it this way:

There was, of course, a third alternative, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truthof the matter lay, it would, of course, require an acquittal. [Emphasis added] 19 Challice, and its reliance on Nimchuk, was authoritatively adopted by the Supreme Court of Canada in Morin, supra, at 208-8 and211, where Sopinka, J. Held that the above passages “correctly state the law” and should be used in jury instructions.

In W.D., supra atpara. 27, decided only two years after Morin, Cory J. made it clear that his judgment was not breaking new ground but was simplyfollowing settled law as articulated in Challice and Morin. Indeed, in W.D.S., a case decided shortly after W.D., Cory J. used MartinJ.A.’s language in Nimchuk and referred to the middle ground as a “third alternative”. In other words, the second stage or step in W.D.refers to a finding of fact that is quite different from the positive states of belief or disbelief referred to in the first and third branches ofthe W.D. framework.

They are three separate alternative or choices for the trier of fact that will depend on the strength of the evidence. In R. v. S.(W.D.) (1994), (SCC), 93 C.C.C. (3d) 1 at 10 (S.C.C.), Cory, J. again gave the majority judgment and put itthis way: Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essenceof these instructions be given. It is erroneous to direct a jury that they must accept the Crown’s evidence or that of the defence.

To putforward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version inpreference to the other and yet on the whole of the evidence be left with a reasonable doubt. The effect of putting such a position to thejury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accused could not beacquitted unless the defence evidence was believed. It seems to me that the recharge in this case suffers from the same flaw as the recharge in R. v. W.(D.), supra.

It will be remembered thatin that case the trial judge instructed the jury on the recharge that the issue that they had to decide was whether they believed theaccused or the complainant.

Directions such as that exclude what has sometimes been referred to as the “third alternative”; namely, thatwithout believing the accused, the jury, upon considering the evidence of accused in the context of all of the evidence, may have areasonable doubt as to his guilt. [Emphasis added]. 20 Accordingly, the so-called “second branch” of W.D. does not require a trier of fact to take evidence that has been completely rejectedand use it as a basis for finding reasonable doubt. This is not rational.

The middle ground in W.D. is an “alternative” to complete beliefor complete rejection and arises where a trier cannot “resolve the conflicting evidence” and cannot find “exactly where the truth of thematter lay”, as Morden J.A. and Martin J.A. put it in Challice and in Nimchuk. It refers to a state of indecision or uncertainty where thetrier is not “able to select one version in preference to the other”, as Cory J. put it in W.D.S. In the case at bar, Budzinski J. completelyrejected Edwards’ account and completely accepted T.B.’s account.

In other words, he was able to resolve the conflict in the evidenceand he was not left in a state of uncertainty. By stating definitively, “I disbelieve the defendant”, the trial judge could not have been left in reasonable doubt by that testimony.[4] [19] In the instant case, the Court disbelieves and rejects the explanation of the accused and prefers and accepts the evidence of thecomplainant where it differs from the accused.

Further, upon a careful review of all of the evidence presented on behalf of the Crownand the Defence, both viva voce and by exhibits, the Court is not left with any reasonable doubt as to the guilt of the accused.

c) Whether the principles of self-defence apply and if so, whether the Crown has disproved the elements of self-defence beyond areasonable doubt; [20] Having reached the conclusions herein, no issue of self-defence arises on the facts accepted by the Court. The Court findsthat the accused inflicted the injuries upon the complainant by way of an unprovoked assault and not in response to any threat orperceived or actual blows struck by the complainant.

d) Whether a reasonable doubt has been raised concerning the mens rea of the breach of Undertaking charge not to be at or nearthe family acreage. [21] Following the subject incident on March 25, 2013, the accused was on an Undertaking, inter alia, not to be at or near the

family acreage. On April 20, 2013 the accused was in fact at the acreage, which is not disputed. [ 22 ] The accused testified in his evidence that he believed he was permitted to be at the acreage however when the complainant was not there. He proffered no explanation as to how he reached such a conclusion. He appeared, in fact, to contradict himself on this point, as evidenced in the following exchange from his examination-in-chief: Transcript Page 232, Line 18 - 26 Q: Alright. So why did you go to the residence? A: Just to check the water. Q: Okay. Tell us what you did. A: I drove up.

I drove into the yard and I noticed there was two vehicles sitting there. My first instinct was just to leave because I really didn ’t think anyone was there . And then I noticed Mr. Miller loading up stuff into the back of his truck, and I thought he waved me in. [Emphasis added] [ 23 ] The reference to “checking the water” he explained was in respect to a low spot that would require pumping to prevent his basement from flooding.

When asked if he had water in his basement before he replied “no, not yet”. [ 24 ] In regard to his Undertaking, the following exchange took place in cross-examination: Transcript Page 251, Lines 18 - 26 ; Page 252, Lines 1 - 13 Q: Okay. Alright. I am going to show you a document. It is P-1. Do you recognize what that is? A: Yes. Q: Okay. Alright. This is your Undertaking, right? A: Yes. Q: Okay.

Alright, and one of the conditions then it says right here, you’ll agree with me, is to abstain from communicating directly or indirectly with Bonnie Washkowsky or from going to NE 12-37-23 W of 2nd or her place of employment, is that correct? A: Yes. Q: Okay. And that’s where you were there that day wasn’t it. A: Yes. Q: Okay, alright, it doesn’t list any sort of exception that you can go there as long as Bonnie is not there. A: No, it doesn’t. [ 25 ] The terms of the Undertaking were clear and unambiguous which the accused acknowledged.

Defence counsel urged that he wasn’t asked about his understanding at the time he signed and that his answers demonstrated only his knowledge at the date of trial. The Court finds no merit in this argument. To the contrary, when he was asked specifically whether there were any exceptions that would permit him to be at the acreage when his wife wasn’t there, he conceded there were none. Further, he unwittingly contradicted himself in his own evidence when he stated “my first instinct was to leave because I really didn’t think anybody was there”, supra .

If he truly believed he could be there when his wife was absent, why would his first instinct be to leave when he didn’t think anyone was there? Again his evidence in this regard is simply not credible. Nor was there any other evidence presented by the Crown or Defence capable of raising a reasonable doubt in regard to the offence charged. IV CONCLUSION

[26] The accused is found guilty of common assault upon the complainant, Bonnie Washkowsky, and of breaching hisUndertaking not to be at or near her residence. ____________________________________ R.D. Jackson, J [1] (SCC), [1991] S.C.J. No. 26 (S.C.C.) [2] Transcript, Page 244, Line 11 - 13 “I put my head down, close my eyes, so I wouldn’t get it in the face, and it goes bouncing off myhead, her fist.” [3] [2012] O.J. No. 2596, 2012 ONSC 3373 (Ont. S.C.) [4] See also R. v. B.D., 2011 ONCA 51 (Ont. C.A.)