HER MAJESTY THE QUEEN, ) Mr. David Gray & ) Ms. Delilah Young, v. ) For the Crown, 2012 MBPC 11

2012 MBPC 11 THE PROVINCIAL COURT OF MANITOBA (THOMPSON CENTRE) BETWEEN: HER MAJESTY THE QUEEN, ) Mr. David Gray & ) Ms. Delilah Young, -and- ) For the Crown ) Arnold Jobb , ) Mr. Robert A. Mayer, QC, Accused ) For the Defence ) ) Decision of January 18, 2012. THOMPSON, M.P., ACJ THE CHARGE 1 . Arnold Jobb is charged with aggravated assault on Eric Francois pursuant to s. 268 of the Criminal Code of Canada . It is alleged to have happened at a trailer in Thompson, Manitoba on February 4 th , 2010. OVERVIEW: 2 . The Crown alleges that Mr. Jobb participated in a group beating of Mr.

Francois at the trailer, in which weapons were used; a dumbbell, a crow bar and an exacto knife. 3 . The injuries Mr. Francois suffered, both physical and psychological, were extreme. His face was badly bruised and swollen. He was bleeding from lacerations to various parts of his body, including his groin, abdomen, back, nose, palms of his hands and bottoms of his feet, where his attackers had stripped his clothing off and slashed him up, apparently with an exacto knife. Considerable medical attention was required in the days that followed.

4. At the beginning of the trial, defence counsel conceded that the victim’s injuries were sufficient to meet the test of anaggravated assault; that the cuts Mr. Francois suffered were indeed wounds, as defined by

section 268 of the Criminal Code of Canada. 5. To put it in layman’s terms, Mr. Francois was brutally assaulted and tortured. Conflicting explanations were given as towhy he was assaulted. However, the accused, Mr. Jobb told police that someone said Mr. Francois was a “skinner” (a jail houseexpression for rapist and indicative of someone ranking at the bottom of criminal hierarchy). 6. The victim, Mr. Francois testified for the Crown. He did not place the accused Arnold Jobb at the crime scene or identifyhim as one of his assailants. 7.

He did identify several other people who assaulted him but was unable to provide details about who did what to him. Thiswas due to several factors; including his high level of intoxication, being attacked by multiple assailants, initially being knockedunconscious from blows to the head and later keeping his eyes closed while feigning unconsciousness in an effort to stop the beating. 8. The accused, Arnold Jobb did not testify at trial, however during the course of the RCMP investigation, he gave a warnedstatement to police.

After a voire dire, the Defence did not contest the voluntariness of his statement and it was admitted into evidence. 9. In his statement, Mr. Jobb admitted he was present at the trailer. He admitted to assaulting Mr. Francois; one punch to thehead. However he denied participating further in the beating, in the use of weapons or even being present in the bedroom where Mr.Francois was stripped of his clothing and sliced multiple times with an exacto knife. 10. An admitted alcoholic, he told police he drank a lot that day.

Although he couldn’t say why the attack commenced orremember who did what, he stated with certainty that he went to the washroom to use the toilet after it all started. 11. The Crown called a witness who was also present at the crime scene; Hal Baker. Mr. Baker gave a statement to police,initially denying his own presence at the trailer. In that same statement he subsequently admitted he was present and implicated theaccused Arnold Jobb as a participant and party to the beating and cutting of Mr. Francois. Mr. Baker testified at the trial as a Crownwitness, while incarcerated on an unrelated matter.

Despite admitting under cross examination that he too had initially been involved inthe assault of Mr. Francois, Mr. Baker has never been charged for his involvement in this matter. 12. The Defence called no evidence at trial. The Defence denies that Mr. Jobb participated in the use of weapons in the assaultand also denies that he caused lasting injury to Mr. Francois; either directly or as a party. ISSUES: 13. What was the extent of the accused’s involvement in this assault? 14. Stated more precisely, given that the accused has confessed that he assaulted Mr.

Francois, has the Crown proven beyond areasonable doubt that he participated, or was a party to the aggravated assault or to either of the included offences of assault with aweapon or assault causing bodily harm? 15. As there is an absence of forensic evidence linking the accused to the aggravated assault, a key issue at trial is the credibilityof Hal Baker’s testimony. He is the only Crown witness to testify that the accused was involved beyond the initial blows struck to Mr.Francois. 16. The Defence takes issue with his credibility.

As an unindicted co-accused, who initially denied to police he was even present,his credibility deserves careful scrutiny; per Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R. 811. Vetrovec warnings

can prevent the conviction of an accused based on a single piece of unsupported evidence stemming from a witness of doubtful credibility. ACCUSED’S STATEMENT TO POLICE: 17 . The accused’s version of events also warrants critical examination. In his statement he first told the investigating officer he couldn’t even remember (p.6). When challenged that he couldn’t have forgotten what had happened because Mr. Francois was so badly injured, he responded that he wasn’t going to say anything (p.7). 18 . A look at excerpts from the transcript of Mr.

Jobb’s statement give a clearer flavor of his candour and ability to recall what happened: Q: So you gotta tell us what your role in this was? A: Not very much. I don’t even think I, I hit him once that’s it. (p.9)… Q: Can you tell me how it started like… A: Yeah. Well it started… I can’t even remember. I’m serious. Can’t remember how it started. (p.10) Q: That’s a picture where someone slashed his back open. A: No I know I didn’t ever touch the knife or whatever he used. (p.10) Q: You can tell me that you know you never touched the knife. But you know who did. A: No. I don’t know.

I …I went to the washroom when it all started. (p.13) Q: Who was beating on him? A: Well fuck who ever was there I guess. (p.18) A: …Like I’m pretty sure everybody took

part in it. (p.18) Q: Where were you when this slashing was going on? A: I went to the washroom I said. Q: For how long? A: I went to take a crap. (p.19) Q: Ah I hit him once and I don’t know what the boys did to him. (p. 28) Q: So what happened after he started getting punched in the face? I know there were other things used other than like punching and kicking. A: Was there? Like I can’t really remember man. Serious. (p.42)

Q: Who was hitting him? A: I just hit him once. I think all of us took turns hitting him. Like well I took my turn. (p.46) 19 . To summarize, the accused was initially unwilling to give a statement. When he did speak about what happened, at first he claimed to have no memory of these events. Later on he changed his story indicating he did indeed recall what happened. However his memory was only specific as to the limited nature of his involvement. He was unable or unwilling to give a detailed account of what the other participants actually did, other than Hal Baker striking the first blow, to Mr. Francois. 20 .

As a result, I find that I can put little weight on the version of events professed by the accused. It is incomplete. He was clearly attempting to minimize his involvement and unwilling to give a full account of what had occurred. TESTIMONY OF HAL BAKER: 21 . As noted in the “Issues”

section of this decision, Hal Baker’s testimony deserves careful scrutiny. There are some obvious concerns. When arrested as a suspect in this case, he initially denied to police that he was present at the crime scene. At court during cross examination he admitted he pushed Mr. Francois, thereby implicating himself in the assault. Despite his involvement he has never been charged in relation to this matter. When he testified at court, he was a sentenced prisoner convicted of gun possession. 22 .

As the Supreme Court of Canada in Vetrovec warns us, the danger to be guarded against is a conviction of an accused based on unsupported evidence from a witness who already comes to court with doubtful credibility. 23 . During cross examination the following exchange took place: Q: What did you do to Mr. Francois? A: Nothing. Q: Nothing? A: I pushed him, that’s about it. Q: Ah. Q: How many times? A: Pardon me? Q: How many times? A: Once. Q: At what point did you do that Mr. Baker? A: It was at the beginning… After he spit at Victor. Q: You pushed him and what happened to him? A: He got hit. …. Q: Not by you.

A: No.

24 . His involvement in the assault did not come out in direct examination questioning by the Crown: Q: How long before anything happened in the trailer? A: It wasn’t long. Q: And what happened in the trailer? A: They started arguing and that Eric guy spit at Victor. Q: OK and so those were the two guys who were arguing? A: Yeah. Q: Did you happen to have any idea what they were arguing about? A: Not at first. Q: After Eric spit at Victor what happened? A: He got knocked down. Q: And who knocked him down? A: I’m not too sure. Q: And that happened in… A: The living room, he knocked him down towards the kitchen.

Q: And after Eric got knocked down what happened? A: Ray came out. We were all sitting there and I saw him come out through that little hole there in the kitchen, from the living room into the kitchen. And he threw something at him. And later… Q: And where was Eric? A: He was on the ground right here (pointing) Q: At that time who was near Eric? A: Victor and Arnold. Q: And what were they doing? A: Standing over him. Q: They were just standing over him? A: Ray threw something at him. I didn’t know what it was at first. When I got up it was a weight. Q: A weight. 25 .

Hal Baker then testified that he grabbed the weight away from Ray and tried to hide it by throwing it in the closet. 26 . Mr. Baker admitted on cross examination that he pushed Eric Francois after Mr. Francois spat at Victor Castel right at the beginning of the beating. This directly contradicts his Evidence in Chief that he was sitting on the couch when the violence began and that he did not get up until Raymond Michelle threw the dumbbell on the victim, who was already by this time prone on the ground.

27 . Further Mr. Baker made no mention whatsoever of him pushing Eric Francois. When asked directly on cross examination what he (Mr. Baker) had done to Mr. Francois, he initially said “Nothing”. When that answer was challenged, he changed his answer to say he “pushed him, that’s about it”. When asked how many times, he responded with “Pardon me?”. The question was not confusing and it was asked in a loud clear voice by defence. I find it telling that Mr. Baker did not answer the question immediately. He was clearly being evasive and vague in his answers. 28 . Mr.

Baker attempted to portray himself as a hero in his direct examination; the only person who did nothing wrong and was trying to stop the violence. Cross examination demonstrated that was not the entire truth. Mr. Baker was clearly involved in this matter in a sinister way, most likely to a much lesser extent than the others, but nevertheless he was a participant. 29 . He deliberately tried to shape his evidence to appear otherwise. 30 . Mr. Baker also testified that later on he walked back to the third bedroom where Mr. Francois had been dragged to: Q: And when you got there, what happened?

A: They were stripping him naked. Q: Who was all stripping him naked? A: Ray and Arnold. Q: What…? A: I tried to stop it. They didn’t want to listen. They told me to get the fuck out. Q: And as a result of that you did what? A: I stood there. Q: For how long do you think you stood there? A: Til Ray cut him. Q: Did you see what was being used to cut him? A: A little razor blade…one of those exacto knives. Q: An exacto knife. Do you remember what colour it was? A: No I don’t. (he identifies it as similar to the exacto knife seized at the scene) Q: And then what else did you see?

A: Then Charmaine pulled me out of there. Grabbed me by the hood and pulled me out of there. 31 . Later on his Examination in Chief Mr. Baker was asked to who he saw in the last room (the third bedroom). He testified that Arnold Jobb, Victor Castel, Ray Michelle and Eric Francois who was lying on the bed. 32 . When asked what they were doing, he testified they were stripping him (Mr. Francois) naked: Q: I don’t mean to belabor the point but after they stripped him naked, what did they do? A: Ray cut him. Q: Did you see anything else?

A: He handed the knife to Arnold. 33 . During cross examination it was pointed out that those details were not contained in his statement to police (at page 81). Defence counsel pointed out that Mr. Baker’s statement to Cst. Danny Watson read as follows: Q: Who was in the back room other than Ray then? A: Arnold and Victor. Q: What were they saying or doing when this was going on? A: Nothing. They were just standing there. They told me to get the fuck out. Q: Did you see Arnold or Victor take the knife at all? A: No. I didn’t see that

part cause I walked right out of there or I got pulled out. 34 . Mr. Baker tried to explain this inconsistency away, by saying he didn’t remember all of the details when he gave his statement to police and that his court room testimony, nearly two years later was more accurate. 35 . That is not a plausible explanation. He was directly asked by Cst. Watson if he saw the accused, Arnold Jobb, take the knife. He said he did not. His testimony at trial on this critical piece of evidence is entirely at odds with the statement he gave to police. At least one of those versions is false.

I am left unable to determine what the truth is. 36 . I find the evidence of Hal Baker to be unreliable. There are significant inconsistencies internal to his police statement; initially denying he was present. There are material inconsistencies between his police statement and trial testimony and there were clear contradictions between his direct testimony and that given under cross examination. 37 .

While I do not believe the accused’s version of events contained in his statement to police and strongly suspect he was much more involved in this matter, it would be dangerous to convict him based solely on the evidence of Hal Baker. This is precisely the type of case Vetrovec warns us to on guard against. EXTENT OF THE ACCUSED’S INVOLVEMENT IN THE ASSAULT: 38 . There is an absence of any forensic evidence linking the accused, Mr. Jobb, to the wounding of Eric Francois. The accused himself vehemently denied in his statement that he was involved in the cutting of Mr. Francois. Mr.

Francois did not link the accused to the wounding. The only Crown witness who purported to link the accused to the wounding was Hal Baker, who’s testimony I have found to be unreliable. 39 . As a result there is no reliable evidence upon which the Court can base a conviction for aggravated assault. 40 . There is no evidence from the accused or any other reliable evidence to link his participation in using any weapons in the assault on Eric Francois, even as a party. 41 . However, a careful examination of the accused’s statement to police, is telling. While he professed to only strike Mr.

Francois once in the head, by his own words he implicated himself as a party to assault causing bodily harm, an included offence of aggravated assault.

42 . He told Police at page 18 of his statement: Q: Who was beating on him? A: Well fuck who ever was there I guess. … A: …Like I’m pretty sure everybody took

part in it. And a p. 46 of his statement: Q: Who was hitting him? A: I just hit him once. I think all of us took turns hitting him. Like well I took my turn. (p.46) 43 .

Section 21 of the Criminal Code of Canada defines when a person is a party to an offence. It reads as follows: Parties to Offences Parties to offence 21.

(1) Every one is a party to an offence who • (

a) actually commits it; • (

b) does or omits to do anything for the purpose of aiding any person to commit it; or • (

c) abets any person in committing it. Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. • R.S., c. C-34, s. 21. 44 . I am satisfied on the basis of the accused’s own words to police that he acted in concert with the other men who were present and hit Mr. Francois.

I find that he participated in a group beating, although the evidence falls short of proof of his involvement with weapons or wounding. Mr. Francois’ evidence was that he was knocked unconscious and injured by those blows to the head. There is no dispute that he suffered serious and lasting bruising and swelling to his head and face. 45 . I find that by taking his turn in hitting Mr. Francois in the head, the accused acted as a party to the offence of assault causing bodily harm, as defined in

section 267(

b) of the Code. DECISION:

46 . Accordingly I find the accused Arnold Jobb not guilty of aggravated assault, but guilty of the included and lesser offence of assault causing bodily harm. M. P. Thompson ACJ