R. v. Paibomsai, 2011 ONCJ 421

COURT FILE No.: Toronto Region Metro North Court DATE: 2011·02·04 Citation: R. v.

Paibomsai , 2011 ONCJ 421 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TIM PAIBOMSAI Before Justice Carol Brewer Heard on January 21 and February 1, 2011 Reasons for Judgment released on February 4, 2011 Elma Schmid .............................................................................................................. for the Crown Steven Lyon ................................................................................. for the defendant, Tim Paibomsai Brewer J.: Introduction [ 1 ] Tim Paibomsai is charged with committing the following offences on November 7, 2010: • assaulting Oliver Dick and causing him bodily harm; and • assaulting Catherine Ashkewe. [ 2 ] These charges arose out of an altercation between the defendant and Oliver Dick at the residence of Catherine Ashkewe.

When Ms Ashkewe became concerned about Mr. Dick’s well-being, she intervened in the dispute. The struggle ended when Ms Ashkewe told the defendant that the police were coming. At that time Mr. Dick was unresponsive. His face was badly swollen and his nasal bones were fractured. He had multiple lacerations to his head that required sutures, including a 5 inch cut in his left eyebrow and an injury on his upper left lip. Ms Ashkewe suffered a large scrape and extensive bruising to her left leg and a large bruise on her right arm.

The defendant, who was arrested outside the residence, sustained a cut lip and abrasions on his forehead and chin. He had some blood on his shirt and on his hands. Both men had swollen hands with scraped knuckles. [ 3 ] A defence of self-defence has been advanced. The issues raised for determination are: • whether this was situation involved self-defence or was a consensual fight that precluded self-defence; and • in either event, whether Mr. Paibomsai used excessive force in dealing with Oliver Dick. The Evidence [ 4 ] The two main witnesses in this case were Catherine Ashkewe and the defendant.

Although Oliver Dick testified, his recollection of these events was extremely limited. [ 5 ] Ms Ashkewe and Mr. Dick have an adult son together and are close friends. Catherine became acquainted with Mr. Paibomsai through his girl friend, Kristin Cooper. Ms Cooper is a friend of Ms Ashkewe’s son. [ 6 ] It was common ground that Mr. Paibomsai and Ms Cooper stopped by Ms Ashkewe’s apartment some time after 11:00 p.m. on November 6, 2010. Oliver Dick, Adam Paul and Ms Ashkewe had spent the day walking around, having dinner with Catherine’s mother and drinking some beer.

The defendant and Ms Cooper, who were about to be evicted, had looked at an apartment and visited friends. At the time of his arrival at Ms Ashkewe’s home, Mr. Paibomsai had been drinking, had taken some pills and had smoked some crack cocaine. Mr. Dick, who had parted from his companions to buy some wine, arrived shortly after the defendant and Ms Cooper.

[7] Mr. Paibomsai fell asleep on the couch as soon as he entered the living room. Ms Cooper and Mr. Paul were playingcards while Ms Ashkewe watched. Some time later, Ms Ashkewe went down the hall to answer the door. Catherine’s neighboursdropped off a radio for her son and she was chatting with them. After the conversation ended and Ms Ashkewe was locking her door,she heard an argument between Ms Cooper and Mr. Dick. Ms Ashkewe entered the living room and noticed that Ms Cooper had bloodon her mouth. Although Ms Cooper stated that Mr. Dick had hit her, Ms Ashkewe did not believe her. [8] According to Mr.

Paibomsai, Oliver Dick woke him up twice: initially by shaking his face and later by punching himon the lip and causing it to bleed. On the first occasion, the defendant warned Mr. Dick that if he touched him again Mr. Paibomsaiwould hit him. After being awakened for a second time, the defendant sat up and asked Mr. Dick if he was “fucking stupid”. Ms Cooperencouraged the defendant to confront Oliver Dick, saying, “Yeah, Tim, get him! He hit me.” [9] By contrast, Ms Ashkewe maintained that the defendant was asleep when she returned to the living room and it was MsCooper who shook him until he awoke.

Ms Cooper told Mr. Paibomsai that Mr. Dick had hit her and asked, “Are you going to let himdo that to your woman?” [10] The defendant got up and walked over to Mr. Dick. He made a comment about the complainant hitting his girl friend andchallenged Mr. Dick to hit him. Both men were angry. According to Ms Ashkewe, Mr. Paibomsai threw the first punch. The two mengrabbed each other and went flying over the table in the living room, breaking it. They fell to the ground, with the defendant on top ofMr. Dick. The men were wrestling and throwing punches at each other. Mr.

Paibomsai acknowledged that his blows were directed atthe complainant’s head and were repeatedly connecting with his head and face. During the course of the fight, Ms Ashkewe describedMs Cooper throwing debris at Mr. Dick and, at one point, hitting him on the back of the head with a chair. The defendant noticed thatdebris was flying at them, but did not see Mr. Dick get hit with the chair, as his focus was on the fight and not on the actions of others. Mr Paibomsai knew that he was winning the fight. [11] Ms Ashkewe heard the complainant say “stop, I quit” but the defendant continued punching Mr.

Dick in the face andhead. Ms Cooper was yelling, “Get him. Get him.” Catherine saw that Mr. Dick was bleeding from the head. He appeared to beunconscious. Concerned that her friend might die, Ms Ashkewe threw her body over Oliver’s, with her left leg positioned to protect hishead. She told Mr. Paibomsai repeatedly to stop. Ms Ashkewe received numerous blows to the leg as the defendant continued to punchat Mr. Dick’s face. She told the defendant and Ms Cooper that the complainant was unconscious and “if they wanted to commit amurder” they should continue their actions.

Ms Ashkewe added that the police would be there shortly because her neighbours called thepolice for any noise. The defendant and his girl friend got up to leave. As they walked by the complainant, Ms Cooper stomped on hisribs and Mr. Paibomsai stomped on his head. Ms Cooper suggested that they break the complainant’s legs. She and the defendant eachtwisted one of Mr. Dick’s legs as Ms Ashkewe tried to stop them. As the couple exited through the back door of the apartment, thepolice came to the front door. [12] Mr.

Paibomsai acknowledged that Ms Ashkewe jumped on top of Oliver Dick and was telling the defendant to “stop,stop”. The defendant did see blood in the area where Oliver was lying. He did not notice that Mr. Dick was unconscious. According toMr. Paibomsai, he continued struggling and hitting at the complainant and Mr. Dick continued to hit at him. The defendant admittedknowing that Ms Ashkewe was trying to protect Oliver and that she was in the “crossfire” of the fight. While Mr.

Paibomsai said he didnot intend to hit Ms Ashkewe, he continued to strike at the complainant despite the fact that Catherine’s leg was there. The defendantgot up and left when Ms Ashkewe mentioned the police. Mr. Paibomsai denied stomping on Oliver Dick. The Applicable Principles [13] Mr. Paibomsai is presumed to be innocent, unless and until the Crown has proven each essential element of theseoffences beyond a reasonable doubt. In particular, the Crown must prove beyond a reasonable doubt that the requirements for self-defence have not been met. [14] Reasonable doubt is based upon reason and common sense.

It is logically connected to the evidence or the lack ofevidence. [15] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requiresmore. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time,reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. [16] In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the SupremeCourt of Canada in R. v. D.W. (1991), (SCC), 63 C.C.C. (3d) 397.

Credibility Generally [17] Catherine Ashkewe gave a clear and detailed account of these events that corresponded to a great extent with thetestimony of Mr. Paibomsai. However, I found certain aspects of her testimony to be troubling. For example: • her close relationship with Oliver Dick affected her perception of events. Although she acknowledged that Mr. Dick had alifelong problem with alcohol and had been drinking throughout the day, she stated that he was not drunk at the time of this incident. Bycontrast, Mr. Dick testified that he was intoxicated. Similarly, Ms Ashkewe’s insistence that Mr.

Dick did not hit Ms Cooper, as suchconduct was not in the complainant’s character, was at odds with her absence from the room, the injury she observed on Ms Cooper

upon her return and Mr. Dick’s criminal record; • her assertion that Mr. Paibomsai stomped on the complainant’s head and left shoeprints on Oliver’s face, is inconsistent with the police seizure of the defendant’s bloodstained socks. The socks the police seized support the defendant’s account of removing his shoes upon entering the apartment and putting them on again as he departed. [ 18 ] I also found portions of Mr. Paibomsai’s evidence to be problematic. The defendant’s claim that Mr. Dick continue to hit at him even after Catherine Ashkewe moved her body to protect the complainant is not credible.

Ms Ashkewe’s testimony that Oliver Dick was unconscious is supported by her conduct in using her body to block the defendant’s blows, her frantic statement to Constable Dunning that she believed her friend was dead, and the evidence that Constable Dunning, ambulance attendants and hospital staff all found Mr. Dick to be unresponsive. Given the defendant’s admission that he had focussed all of his attention on the complainant, I find his assertion that he did not know Oliver Dick was unconscious to be unbelievable. In addition, Mr.

Paibomsai’s evidence that he did not intend to hurt the complainant is inconsistent with the obvious consequences of his admitted conduct in punching Mr. Dick multiple times in the face in anger. The Availability of Self-defence [ 19 ] Mr. Lyon takes the position that his client’s conduct towards Mr. Dick was justified by self-defence. Although Ms Cooper suffered a bloody lip at the hands of the complainant, I am satisfied that the defendant was not acting to protect her. Mr. Paibomsai testified that he had decided to react to Mr.

Dick’s treatment of him “no matter what” even before Ms Cooper mentioned her injury to him. [ 20 ] In these circumstances, section 34(1) of the Criminal Code would appear to be the relevant self-defence provision. That

section reads as follows: 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. [ 21 ] I find that Oliver Dick did assault the defendant by having physical contact with him on two occasions while he was sleeping. The second assault involved a punch to the face that caused the defendant’s lip to bleed. These assaults occurred when Ms Ashkewe was out of the living room, speaking with her neighbours. Further, Mr.

Paibomsai did nothing to provoke those assaults by the complainant. [ 22 ] However, it is well established that self-defence arises from the need for self-preservation. It must not be used to get revenge on or to get even with someone else: see Watt’s Manual of Criminal Jury Instructions . In this case, Mr. Paibomsai warned Mr. Dick that he would hit him if the complainant touched him again. The defendant testified that he meant that warning and intended to act on it. Instead of reacting to protect himself, Mr.

Paibomsai stated that he was motivated by anger and “lost it” on the complainant. [ 23 ] On the facts of this case, I believe that this was a consensual fight. Mr. Paibomsai’s conduct in approaching Oliver Dick and asking, “Why don’t you hit me?”, involved a challenge to fight. By his conduct, in expressing his anger and reacting to the defendant’s challenge, I find that Mr.

Dick gave his consent to fight. [ 24 ] For public policy reasons, Canadian law has restricted consent to engage in a fight to circumstances where there is no intention to cause serious bodily harm, and serious bodily harm does not result: R. v. Paice , [2005] S.C.J. № 21 at ¶10-11. [ 25 ] In his concurring reasons in R. v. Paice, supra at ¶41, Fish J. stated that ‘grievous bodily harm’ within the meaning of

section 34 of the Criminal Code is not limited to bodily harm that is permanent or life-threatening, but involves harm or injury that is very severe or serious. The term, ‘serious bodily harm’, which is required to vitiate the consent to fight, involves an injury that interferes in a substantial way with a person’s physical integrity, health or well-being: R. v. McCraw , [1991] S.C.J № 69 at ¶21-23. [ 26 ] The defendant’s repeated punches to Oliver Dick’s face caused comminuted fractures to his nasal bones and lacerations that required sutures.

After being released from hospital, the complainant had a two to three week recovery period during which he was cared for by Catherine Ashkewe. In my view these very serious injuries, which included wounds, meet the definition of both serious and grievous bodily harm. In arriving at this conclusion, I have specifically disregarded the wounds to the back and side of Mr. Dick’s head that could be attributed to the blow struck by Ms Cooper with the chair. [ 27 ] In my opinion, the following factors support the conclusion that Mr. Paibomsai intended to cause serious bodily harm to Mr.

Dick: • the defendant is taller, more powerfully built and almost 20 years younger that Oliver Dick; • Mr. Paibomsai was enraged and admitted that he “lost it” on the complainant; • in repeatedly punching Mr. Dick, the defendant deliberately directed his blows to the face, a vital and vulnerable area of the body. It is reasonable to infer that anyone who strikes numerous blows to that part of the body with a closed fist would recognize that a serious injury would be inevitable; and • Mr.

Paibomsai persisted in his efforts to strike Oliver Dick in the face despite Ms Ashkewe’s pleas for him to stop, her efforts to protect her friend by covering his face with her leg and the complainant’s state of unconsciousness. [ 28 ] I recognize that the use of force cannot be weighed with balanced precision, either in self-defence or within the scope of a fight. However, the defendant’s conduct was clearly disproportionate to the circumstances and exceeded the permissible scope of any consent to fight. Mr. Paibomsai’s conduct cannot be justified by either self-defence or the existence of consent to fight.

The Assault on Catherine Ashkewe [ 29 ] While intending to apply force to Oliver Dick, Mr. Paibomsai punched Ms Ashkewe a number of times on her leg. Where a defendant intends to assault one person, but accidentally injures another person, the doctrine of transferred intent holds the defendant responsible for committing the crime: R. v. Gordon , [2009] O.J. № 724 (C.A.) at ¶43. Conclusion [ 30 ] The Crown has proven beyond a reasonable doubt that Mr. Paibomsai is guilty of both charges. Released: February 4, 2011 Signed: “Justice Carol Brewer”