Her Majesty the Queen - v. -, 2018 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 018 Date: March 2, 2018 Information: 991038770 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dakota Joseph Asapace Appearing: Ms. Jacqueline Lane For the Crown Mr. Andrew Campbell For the Accused J UDGMENT B.D. H ENNING , J. [ 1 ] The accused, Mr. Asapace, was tried on four counts on February 5 th and 22 nd of 2018. The charges relate to two dates: a. July 12, 2017, one count of assault proceeded by indictment on Jessica Sanderson contrary to

section 266 of the Criminal Code of Canada (hereafter, ‘the Code ’), and one count of unlawful confinement contrary to section 279(2) of the Code ; and b. August 27, 2017, one count of assault on Jessica Sanderson using a weapon, a knife, contrary to

section 267(

a) of the Code and breach of recognizance condition prohibiting contact with Jessica Sanderson, contrary to the Code .

[ 2 ] Evidence began with the complainant, Ms. Jessica Sanderson, but I will summarize the police evidence leaving Ms. Sanderson’s evidence to later in the judgment where it may be more easily compared to that of Mr. Asapace who gave the defence evidence. The only evidence in the case came from three police witnesses, plus the complainant and the accused. [ 3 ] Police evidence began with Cst. Laurie Alexander of the Regina City Police. She indicated that she first encountered Ms. Sanderson as a result of a dispatch to 1233 Robinson Street in Regina to respond to a complaint of an ‘unwanted guest’.

She did not state initially the date of this event, and because the complainant referred to other occurrences on different dates, it is important to keep the events clear as to the date they occurred. She first came upon the accused who was leaving with his arms full of clothing. Ms Sanderson was on the front lawn very upset, screaming and yelling. She went to speak with Ms. Sanderson after other constables arrived, and they went into the house, as Ms. Sanderson was very agitated and upset throughout. Ms. Sanderson recounted an incident some days earlier, July 10, when she was body slammed to the ground. Cst.

Alexander said that she checked police records, and they had responded to an incident on that date, but no charges resulted. Cst. Alexander went on to indicate that Ms. Sanderson referred to another incident on July 12, which is the subject of these proceedings. [ 4 ] Ms. Sanderson went on to detail that incident as involving the accused tying her up with cord and assaulting her. Ms. Sanderson stated there had been considerable conflict between them over termination of the relationship by herself. Ms. Sanderson showed the officer some remnants of black cord that may have been used.

There were other small pieces of cord present that Ms. Sanderson showed and stated were not used. Cst. Alexander stated that details were very difficult to obtain due to the extremely emotional condition of the complainant. In any event, the complaint to the constable is not evidence of the events. [ 5 ] Mr. Asapace was arrested as a result of the complaint, and Cst. Sanderson took the complainant to police headquarters to obtain statements, leaving the house at about 4:15 a.m. on July 20, 2018, which date was mentioned only later in evidence. Ms.

Sanderson wished her mother present for the statement and police facilitated that, and her mother, Cynthia, arrived about 5:00 a.m. However, the complainant did not give a written or video-taped statement on that day. [ 6 ] Cst. Alexander went to speak with Ms. Sanderson again the following day, the 21 st , at her house in the evening with a Cst. Wood. Ms. Sanderson did not give a statement on that date either, and it appears that no written or recorded statement was ever obtained from her. Cst.

Alexander indicated that there was little or no physical indication of an assault on July 20 th , other than extreme emotional agitation and disheveled hair. [ 7 ] The next police witness was Cst. Meghan Shaw who brought her notes and police report concerning an incident on August 27, 2017. She and her partner had been dispatched to a 911 hang-up call from a hysterical female person at 1:48 p.m. with only an area (rather than a specific address) designated as the place of origin. A person in the area advised of something that took them to 1233 Robinson Street. Cst. Shaw and Cst.

Saketh Katragada went to the door and noises from inside were heard. A female who later was identified as the complainant looked out of a window and then answered the door. She was crying and hysterical, very agitated and scared. She made an immediate complaint of an assault upon her. She directed police to a hallway and then bedroom where a male person was seen sitting at the end of a bed. Her partner spoke with that person, who was the accused and Cst. Shaw spoke further with the complainant, who she emphasized was still extremely distraught and agitated. [ 8 ] The complainant, Ms.

Sanderson, described an assault involving a knife. The constable noted many bruises on Ms. Sanderson that appeared not to be fresh. Ms. Sanderson produced a folding knife with a three-inch blade from a drawer and gave it the constable. This knife was exhibited, but it is uncertain whether it was the particular knife used in the assault. Ms. Sanderson said that she was assaulted, and that it had included putting a knife to her arm and to her neck. Cst. Shaw said that Ms. Sanderson’s hair was disheveled.

The call may have come from an inactive cellular phone that still allowed the making of emergency 911 calls. [ 9 ] The last police witness was Cst. Saketh Katragada who confirmed the date and arrival time, and the fact that Ms. Sanderson was in a state of extreme agitation that he described as hysterical. He dealt primarily with Mr. Asapace whom he arrested because, inter alia , he was subject to a condition not to contact Ms. Sanderson.

[ 10 ] The police evidence gives the setting for the complaints of Ms. Sanderson concerning two incidents she indicated occurred on July 12 th and August 27 th . Ms. Sanderson testified, beginning with the incident on July 12, 2017. This occurred at 1233 Robinson, which she stated was her home and which was the address at which all events occurred. Ms. Sanderson said they, Mr. Asapace and her, were fighting and arguing. She had been alone when Mr. Asapace called her on the phone, and she knew he was angry and coming over. She locked the door in anticipation.

She said they were together for parts of the beginning of early 2017, but he had been in custody for large parts of the time. She said that the relationship had been abusive, but mainly emotionally abusive. On the phone, she had told him they were “done”, and about a half hour later he came to the back door and “kicked it in”. Mr. Asapace had said he was coming to pick up clothes, but she told him his mother had already picked them up. The back door may have been already broken from previous incidents with Mr.

Asapace, and it may not have locked properly, but it was not inspected by police. [ 11 ] When he came in, she stated that the first thing he did was grab her phone to see who she had been talking to. Much occurred after that and she lost track of time. She gave him some clothes that were his, but he made her go downstairs to get more that may have been there. He became angry and began to rip up his clothes, and then became violent toward her, hitting her mainly in head area. He tied her hands, and she later indicated that her feet were tied as well with some cord that she could not describe in any detail.

She was sitting on the floor crying and he kicked her. When asked how hard, Ms. Sanderson said “not that hard”. She said this went on for “a few hours”. She was tied up and he was yelling and swearing at her. She asked him to stop, and none of what she stated to have occurred was consented to or part of a mutual application of force. She said she asked him to hold her at one point and he laughed at her. [ 12 ] The witness was crying and very emotional and had difficulty in relating the events. Crown Counsel questioned for exact details such as the number and strength of blows. Ms.

Sanderson did not appear to be a naturally articulate person, and she had some difficulty expressing herself in clear and precise terms, apart from the stress she experienced in recounting the events, and at the time they occurred. Her emotional state on August 27 th was well described by police witnesses. However, it is clear to me that in giving evidence regarding the events of July 12 th and August 27 th , it caused her severe emotional distress that was not feigned. [ 13 ] Regarding the incident of July 12 th , Ms.

Sanderson stated that in this incident she could not precisely provide details of the blows or give clear timings. She went on to state that at one point Mr. Asapace was not hitting her, but put a rope to her neck in a choking manner. He eventually untied her and let her go upstairs at 1:00 or 2:00 a.m. This was the incident in July that she thought had occurred on the 12 th of the month. [ 14 ] The date in such an incident is not a crucial indicator of credibility, if no other actions occur (such as police intervention) that would fix the date clearly. Ms. Sanderson said that Mr.

Asapace was released from custody in June, and that incident had occurred about two weeks after that. Her first recounting to the police was some time later. [ 15 ] Ms. Sanderson went on to relate the incident of August 27 th which commenced when she and Mr. Asapace were in bed together. That detail differs from Mr. Asapace’s evidence, and such a detail is not in her interest to relate, nor is it one that is likely to be part of a fabrication. It is apparent that the relationship between the parties was in conflict at times and may have been better or worse at various times. Ms.

Sanderson indicated that the accused had been living between her place and his brother’s place which later evidence indicated was the residence he was to live at as a condition of his release. On the 27 th , a dispute arose as to whether Ms. Sanderson’s father should come to stay there, and Mr. Asapace’s brother(

s) were staying there at the time and were present in the house. Their discussion became angry and she stated that he grabbed a knife and held it to her neck, saying that he wanted her to be terrified of him. The incident with the knife was brief in time. She was able to go to the bathroom at some point and called the police who showed up quite quickly. She stated she had emotional rather than physical effects from this incident. Police had not observed signs of physical assault. [ 16 ] Some facts were clarified on cross-examination. In cross-examination Ms. Sanderson stated that Mr.

Asapace hit her with an open hand three times. The relationship between the two persons was elaborated upon, and also the details of when the complaints were related to the police. It was apparent that it was a highly emotional and conflicted relationship that was not continuous, as stated before in this judgment. Ms. Sanderson stated that when she had given the police an account of the July incident, at the end she said she had lied about it. Ms. Sanderson had been on methadone for some time, which she admitted had some

effects, but they were not elaborated on. She confirmed she had gone for her dose on the day of one of the incidents, but had not taken any other drugs. She admitted to having used crystal meth with the accused. She admitted to convictions for failing to come to court in the past to give evidence. In conclusion, however, Ms. Sanderson strongly asserted the truth of what she had stated in court. It is of note that she readily admitted difficulties in her past and the conflicted nature of the relationship she had with Mr. Asapace.

Her recounting of the two incidents does not have enormous detail, and it was apparent she had difficulty in recounting it in court due to emotion and/or other factors, but she was not confused in her evidence on the main points. Some details of the living arrangements and other details may not be wholly complete or accurate, but after a significant period of time with traumatic incidents this is not, in my opinion, surprising or indicative of a lack of credibility. [ 17 ] The accused, Mr. Asapace, gave defence evidence. His evidence was clear and unemotional.

His defence is that the incidents never occurred, that the relationship he and Ms. Sanderson had was indeed conflicted, that he had wanted to terminate it, and these complaints were fabricated out of jealous reaction to that. He gave the history of their relationship. They had corresponded while he was in custody, and they met about December 23, 2016, when he was released. Mr. Asapace said that Ms. Sanderson became angry in January 2017, when she found out about infidelity on his part, and they were apart for a week.

They obtained a house together in the middle of January 2017, which was the house where these incidents occurred. Mr. Asapace went into custody in January 2017, and was not released until June, or perhaps early July - the evidence on that is not clear or consistent. Mr. Asapace stated that he was on remand for a week later in July, and he had gotten out of custody again on July 8. It is not possible or necessary to determine precisely when he was in or out of custody, or why. [ 18 ] On cross-examination, Mr.

Asapace said that he paid rent after he got out of custody for July and August, but no details of his income following his release were given. He said they spoke a great deal on the phone when he was in custody. He also admitted in cross-examination that the address on Robinson street was not his approved place of residence and he risked being breached for residence and curfew conditions of release by being there. [ 19 ] Mr. Asapace recounted the incident of July 12 th , 2017. He stated that it was he who phoned her saying he wished to break up, but he went over and they argued.

He stated that she was on methadone, and had taken methamphetamine at times also. It is not clear if he alleged that she took methamphetamine on July 12 th . He denied kicking in the back door, but he did admit he ripped up clothing and had smashed her phone. This established anger and aggression on his part, though he denied the assault or confinement. Police did not find either the remains of the clothing or cord or other material that might have been used to tie Ms. Sanderson up. [ 20 ] The August 27 th incident, in Mr. Asapace`s version, was precipitated by Ms.

Sanderson telling him and his brothers they had to leave, including a brother who had been living at the Robinson Street address. Mr. Asapace was to be living at another address with another brother under terms of his release. He stated that he and more than one brother were at the Robinson Street house when Ms. Sanderson came home and that she said they all had to leave, and her father was going to come to live there. There was anger and she went to her room, and he followed her there yelling at her, but he denied hitting her or threatening her.

He considered that he had a right to live there and to follow her to her room for further heated argument. He denied having had a knife. The police came and he was arrested, and he has been in custody since that date. He again denied the July 12 incident. [ 21 ] On cross-examination details of living arrangements were explored, as stated. Mr. Asapace admitted that on July 12 th he came over for his clothes and that he had been angry, and they were fighting over her phone and that he smashed it.

She had said that he came over angry and demanded the phone to see who she had been talking to, and then smashed it, but he denied this, although he admitted breaking the phone. He did not give any details of methamphetamine use by Ms. Sanderson. Mr. Asapace stated he had no idea why she had numerous bruises, and that “she had them all of the time”. He asserted that he was not violent toward women when asked about seven prior assault convictions of various types, and he again asserted that none of them had been against women. [ 22 ] Regarding the August 27 th incident, Mr.

Asapace again stated he had a right to follow Ms. Sanderson into her room to confront her. He admitted that he carried knives as he lived in the north central area of Regina and he had them at home and in the bedroom, but he denied he used a knife to threaten Ms. Sanderson. [ 23 ] In argument, the defence filed a number of well known cases dealing with the question

of reasonable doubt. The defence questioned Ms. Sanderson`s credibility for reasons, inter alia, of: • inconsistency and lack of clarity, including what the defence alleged was confusing reference to July 10 & July12; • poor recollection of details; • criminal offending in the past; • termination of a police interview and stating that she had lied in it; • was not forthright about drug use, particularly methadone; • no confirmation of injuries was noted by the police on either incident; • her description of the knife used was not consistent with the knife found. [24] Some of these arguments are unpersuasive.

The accused admitted he had multiple knives, and it is quite possible the knife produced to police by the complainant was not the knife used by him that day, but he admittedother knives would have been available. However, if the use of a knife was entirely fabricated, it would be more likely the fabricationwould indeed conform to the one produced. [25] Both of the parties to this proceeding have criminal records, but Mr. Asapace’s is more serious, and relates to assault offences.

However, I do not find the presence or absence of a criminal record is helpful in this case indeciding credibility - there are numerous other indicia to consider, and the fact of a criminal record does not necessarily diminishcredibility. [26] Ms. Sanderson indicated at the outset that the relationship was abusive, but mainly mentally so, rather than physically. The use of restraints, threatening with a knife and striking with an open hand would be consistentwith this characterization, and not leave marks.

They nonetheless would constitute offences and might indicate some clarity of thoughtin accomplishing intimidation with psychological effect rather than physical force. [27] In considering evidence, the demeanor of the witness is sometimes significant and here the emotional stress and trauma of the complainant in relating the events would be very difficult to simulate if it were not genuine, in myopinion.

The complainant did not evade any questions or details that were not flattering or supportive of her generally, such as criminalconvictions, drug use or the reluctance and inconsistency she showed in bringing the matter to police attention and giving statements. Ms. Sanderson’s emotional state observed by police on August 27th is consistent with a traumatic event, rather than fabricating anincident out of jealousy or wounded feelings, unless she is an extraordinarily accomplished actress.

Her evidence, if not as detailed orarticulate as might be ideal, was nonetheless compelling. [28] The defence evidence of total denial by Mr. Asapace has some details that bring it into question. He denied using force, but in the two incidents he admitted he was angry in both occasions, showed strong aggression inripping up clothes (July 12) and aggressively asserted his rights as a resident of the house to confront Ms. Sanderson in her room (August27).

This last point of his residency is questionable for reasons referred to at several points in my review of the evidence, but his angerand aggression are clear on his own evidence. [29] Although I do not find that the defence arguments against Ms. Sanderson’s credibility compelling for reasons referred to, nonetheless Mr.

Asapace’s evidence must be considered and weighed carefully, having regard to theburden of proof on the prosecution and the obligation of a person charged to only raise a reasonable doubt with respect to any oneessential aspect of a charge. [30] In considering evidence that is directly opposite, guidance may be had from a number of leading cases, particularly R v W.(D.), (SCC), [1991] 1 SCR 742, 63 CCC (3d) 397 which was considered andcommented upon in R v M.(P.N) (1996), (SK CA), 141 Sask R 221, 106 CCC (3d) 1 (SKCA). Tallis, J.A.

summarized the law as follows: In fact, both the Supreme Court of Canada and this Court have recently considered this question, and suggestions have been made aboutwhat must be included in the charge to the jury: R. v. W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.); and R. v.C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.). What follows is a composite of the instructions given inthose two cases. The first, third and fourth instructions come from the judgment of Cory J., who gave the majority judgment in R. v. W.(D.) at p.409.

The second instruction is suggested by Wood J.A., who gave the judgment of this Court in R. v.

C.W.H., at p.155: 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.

It was stated by Cory J. at the same page that this precise language is not required in every case. It should also be noted that Cory J. wasdealing with a case where there was very little circumstantial evidence, and he naturally directed his attention mainly to the conflictingevidence of the complainant and the accused. ... This case also required a careful instruction on the burden of proof and reasonable doubt. The following passage from the decision ofCory J. in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742 at p.757 is apposite: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. Thetrial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, ifthey do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont.C.A.), approved inR. v. Morin, supra, at p.357. In my opinion these observations apply with equal force to situations where the focus is on reliability as well as credibility. [31] In addition to the issue of burden of proof, a trial court must observe an important requirement to weigh all details of evidence and assess credibility in a reasonable and objective manner.

This principle was consideredrecently in the case of R. v. R.P., 2012 SCC 22, [2012] 1 SCR 746 which was cited in the case of R v Thompson, 2017 SKCA 33, [2017]SJ No 182 (QL), which case also reviewed the applicability of the ‘W.(D.) test’ referred to above. [32] Applying these tests, I find that the evidence of Ms. Sanderson, though it has some significant weaknesses, as noted in this judgment and in defence argument, is credible and trustworthy. I accept her evidence where itconflicts with that of Mr. Asapace. Her evidence of Mr.

Asapace’s actions would support a conviction on all of the offences charged inthe information, and it was not suggested in argument that there are other deficiencies in the proof of these offences if her evidence wasaccepted. [33] I find that Mr. Asapace’s evidence disclosed anger and aggression on the days in question, as well as a sense of entitlement to confrontation. I do not find his evidence credible, and it does not raise a reasonable doubt tome with respect to the evidence of Ms. Anderson. [34] Accordingly, I find the accused, Dakota Asapace, guilty of all of the offences charged.

Dated this 2nd day of March, 2018 at Regina, Saskatchewan. _____________________

B.D. Henning, J.