Her Majesty the Queen - v. -, 2012 SKPC 046

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: March 8, 2012 Citation: 2012 SKPC 046 Information: 43399283 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clive Chambers Appearing: Judy Halyk For the Crown Brad Mitchell For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] On August 25, 2010, the accused was charged with committing an assault on Cynthia Chimbanga and secondly, with committing an assault on Ruth Chimbanga contrary to s. 266 of the Criminal Code .

At trial, the witnesses called for the Crown were: Constable Hobbs, Ruth Chimbanga, Cynthia Chimbanga, Michael Chimbanga and Ruth Fikoloma. Mr. Chambers testified in his defence.

EVIDENCE [ 2 ] The evidence establishes that the accused began living in the home of Ruth Fikoloma in October 2009. Although this was initially intended to assist the accused financially, they immediately began living together as a couple. Ms. Fikoloma’s children, Michael, age 20, Cynthia, age 16, and Ruth, age 14, also lived in the home. [ 3 ] Some time in mid-August 2010, the accused left the home as he and Ruth had broken off their relationship. On August 25, Ms.

Fikoloma planned to spend the evening with her children, however agreed to meet the accused for three reasons: to allow the accused to collect the remainder of his personal possessions from the home, to complete the sale of some property which Ruth had helped him list on Kijiji and to permit the couple an opportunity to discuss whether they could salvage their relationship. The accused initially suggested that they go out to have this discussion but later suggested, and Ms. Fikoloma agreed, that they would stay in. The accused purchased some alcohol for the evening. Having decided to stay in, Ms.

Fikoloma and the accused retreated to the basement area of the home which served as the bedroom they had previously shared. The children were elsewhere in the house. In the basement, Ms. Fikoloma agreed to the accused’s suggestion that they play a drinking game to “loosen up” and ease the conversation they were about to have. After what Ms. Fikoloma describes as “three cups of alcohol” she was too intoxicated to walk and recalled the accused assisting her to use a bucket into which she urinated.

She then passed out on the bed and was in and out of consciousness with little, if any, memory of what occurred afterward. She had no intention of becoming inebriated, nor had she any intention of being intimate with the accused that night. [ 4 ] Ms. Fikoloma said she rarely drinks alcohol but had done so on previous occasions with the accused. Her evidence is that she has a low tolerance for and is very quickly and significantly affected by alcohol. Constable Hobbs, Cynthia and Ruth all confirm that when they saw Ms.

Fikoloma later in the evening she was grossly impaired and barely conscious. [ 5 ] In cross-examination, Ms. Fikoloma agreed that the accused had never been violent or aggressive toward her or the children. On some days the children got on well with the accused and others they did not. She admitted that she occasionally consumed alcohol with the accused but never to the point of passing out and that the accused never forced her to drink. He frequently brought alcohol to the home, but she often said no when he offered it.

The breakup was precipitated over a misunderstanding about the accused attending a wedding. [ 6 ] Ruth, who candidly admitted that she did not like the accused, became worried about her mother at some stage in the evening of August 25. She was accustomed to her mom coming upstairs to talk to her and her siblings or to watch television for awhile and when this did not happen, she went to check on her mother. As she stood at the top of the stairs, she saw only the accused moving about in the basement. When she asked to see her mother, the accused told her that she was sleeping.

Ruth became more concerned and went downstairs where she found her mother lying on the bed in what appeared to be a very deep sleep. She concluded that the accused had made her mom “super drunk” and began screaming at him. [ 7 ] She called for her sister who unsuccessfully tried to awaken their mother. In anger, Cynthia told the accused to get out. The accused in turn became angry and told the girls to leave. He advanced toward Cynthia who told him to back off and pushed or slapped at him to reinforce that message.

As a result, the accused grabbed her hand, continued to yell and went to the laundry room where he retrieved a belt. He told the girls “you have to learn” and swung the belt two times, striking Ruth on the thigh. Cynthia screamed for Michael who came to the basement and told the accused not to hit the girls. Michael then punched the accused who struck back. Ruth denied ganging up with her siblings against the accused. [ 8 ] Cynthia provided a somewhat different description of events.

Her recollection was that the accused and her mother had been downstairs for some time when Ruth began crying because she had a headache. Ruth went downstairs to speak to her mother and when Cynthia heard an argument she too went downstairs. In the basement she saw her mother sitting on the bed with Ruth beside her. Her mother was extremely intoxicated and could not talk.

[ 9 ] The argument continued as she and her sister wanted the accused to leave their mother alone. She was particularly upset because her mother was incapable of speaking and Ruth told her that her mother’s pants were off. Ruth pushed the accused away from their mother and he kept yelling at them to go back upstairs. They did not obey because they were worried about their mother and did not want to leave the accused alone with her. As the argument continued, the accused threatened to hit Ruth. He got a belt, whereupon Cynthia stood in front of Ruth and told him not to hit her.

Nonetheless, he swung the belt three times and she heard it connect. [ 10 ] Cynthia called for Michael who came to the basement where he and the accused got into a fight. In order to stop them, Cynthia kicked the accused. The first physical contact occurred earlier when the accused threw her on the bed which also prompted her to kick him. Throughout this time her mother remained in bed and at one point said “Cynthia stop”. [ 11 ] On August 26, Ms. Fikoloma saw some swelling in a long rectangular shape on Ruth’s thigh.

She also noted that Michael’s fist was swollen but did not see any injuries to Cynthia, nor did she herself have any injuries. Cynthia confirmed seeing a red mark on Ruth’s thigh. [ 12 ] In cross-examination, Cynthia agreed that she told the accused that he should leave the residence. Her recollection was that her brother came downstairs after the incident with the belt. She could not recall Ruth saying anything in particular to the accused. She agreed that she kicked the accused to get him away from her brother.

Cynthia said that she would not have “chest-bumped” the accused because she did not want to be near him. She could not recall whether Ruth slapped the accused while he had the belt. She admitted that she was about to pick up a chair, but did not when the accused told her to stop. The police arrived shortly afterward. [ 13 ] Cynthia agreed she was angry with the accused because he had made her mother drunk.

Although she got along with the accused most of the time, Ruth never did although it wasn’t “like they couldn’t stand each other”. [ 14 ] Michael Chimbanga recalled that he was in his bedroom on the second floor while his mother and the accused were in the basement. The first thing that he recalled was his sister calling for help. When he investigated he saw his mother on the bed with his sisters next to her. He could not tell anything about his mother by looking at her. The accused was standing at the foot of the bed and Cynthia told him that the accused had been abusing them.

He saw the accused go to the laundry room, and return with a belt which he twice whipped toward Ruth; the second blow missed. As a result, Michael punched the accused in the head. His mother told him to stop and at that point Michael told the accused to leave. His recollection was that his mother also told the accused to leave. The accused did not react to that request, so Michael again asked him to leave. When he did not, Michael went upstairs to call the police at his mother’s direction.

The police arrived ten minutes later. [ 15 ] Michael’s recollection was that he opened the door for the police but could not remember if the officers rang the doorbell. When the police left, they took the accused with them. [ 16 ] Michael did not know whether Ruth had any injury as the police instructed the family not to talk about the incident. [ 17 ] With respect to his relationship with the accused, Michael said that they did not connect very well and that he did not talk to the accused very much although he did go for a beer with him on a couple of occasions.

He could not tell whether or not the accused had been drinking that night. He never had any particular argument with the accused prior to the evening of this incident. [ 18 ] He felt that neither he nor his sisters knew the accused very well. [ 19 ] Although he had never seen his mother drink alcohol he conceded that she might drink with friends in spite of their religious beliefs. He did not see Cynthia or Ruth hit the accused nor did he see Ruth confront the accused. [ 20 ] In cross-examination, he said that he punched the accused about seven times in the face but the accused did not fall to the

ground. He called the police after his mother told the accused to leave. He did not recall Ruth or Cynthia going upstairs nor did he recall seeing Cynthia grab a chair. His recollection was that Ruth and Cynthia were downstairs and that he was at the door when the police arrived. Constable Hobbs was clear that the door was opened by a girl who was later identified as Ruth Chimbanga. [ 21 ] Clive Chambers confirmed that he met Ms. Fikoloma online, that over time their conversations became more personal and that he moved into her home in October 2009.

He believed that the children warmed to him after awhile although Ruth, the youngest, appeared to be jealous of the time that he spent with her mother and Cynthia. [ 22 ] He broke up with Ms. Fikoloma the weekend prior to August 25 because things were not working out. He thought the kids had it in for him, particularly Ruth. Another source of tension arose surrounding a wedding invitation which he had received and his expectation that Ms. Fikoloma would pick him up to attend the ceremony but she did not. He also disliked the fact that she was consistently late in picking him up when he needed a ride.

When he told her that they should end the relationship, he believed that she was very hurt and was “crying and wailing”. When he attempted to apologize, Ms. Fikoloma would not speak to him. He moved out that night. [ 23 ] The accused said he worked on August 25 and sent Ms. Fikoloma a text asking her on a date. Subsequently, he went to her house and she said that she would like to go out. They packed the range which had been sold on Kijiji and went to the post office to mail it. He had offered Ruth 20% of the sale price in exchange for her help.

He believed that she was annoyed or angry with him because he was not able to give her the money he had promised while they were at the post office. By this time, he was really tired and asked Ms. Fikoloma if they could just stay home and have a drink. She agreed, so they bought some alcohol and also picked up some movies and some popcorn. When they got back, he and Ms. Fikoloma went to the basement and had some drinks which he mixed combining vodka with an alcoholic cooler. They were both tense so he suggested a drinking game. After a few drinks, he asked if he could spend the night.

He described his condition as intoxicated to the point where he could not walk up the stairs. Ms. Fikoloma told him that she was “tired and woozy and felt like throwing up”. When Ms. Fikoloma said that she needed to go to the bathroom, he brought a bucket into which she relieved herself with him holding her beneath her armpits as she squatted. He did not pull up her sweat pants or panties but simply put her back to bed where he joined her. [ 24 ] He then heard Ruth knocking on the basement door. He told Ruth that they were in bed and asked her to give them half an hour.

She insisted on coming downstairs to see her mother and he told Ruth that her mother had too much to drink. At that point, Ruth pulled down the sheet and accused him of taking advantage of her mother. She got between him and Ms. Fikoloma and began shoving him out of bed. When he told her to stop, she swore at him and told him to get out of the house. She then called for Cynthia. Ruth slapped him and when he told her not to, she went to get Michael. Cynthia then came up and chest bumped him; she too was told to stop it. Cynthia then slapped him across the neck and across the cheek before he grabbed her hands.

When he let go of one hand she slapped him with the other free hand repeatedly. He denied that he ever threw Cynthia to the bed and indicated that he was simply holding her hands to prevent her from slapping him, when she turned and deliberately dropped backward onto the bed. [ 25 ] Michael punched him and Ruth hit him from behind, then all three, Michael, Cynthia and Ruth, ganged up on him. He threatened to get a belt in an attempt to scare them. He actually retrieved a belt as he feared that he “wouldn’t make the night” if he ever “hit the ground”. He felt he needed to scare them because they would not listen.

When he returned with the belt, Ruth challenged him by asking what he was going to do with it. She then slapped him in the face. Michael and Cynthia kicked and punched him. All three formed a “chorus line” in front of him and were kicking and punching. Cynthia made a move to pick up a chair and he asked her not to do it. Michael reached out his hand to him and said “let’s go”. Michael helped him up the stairs where they met the police. [ 26 ] During the altercation, his main focus was not to be knocked to the ground.

He acknowledged that he used the belt to repel Ruth a couple of times. [ 27 ] In cross-examination, he agreed that he was never named on the lease or rental agreement at Ms. Fikoloma’s home but did help pay the rent when he could. While with Ms. Fikoloma, the longest period of time during which he held a steady job was one and a half months. He also acknowledged that he would use Ms. Fikoloma’s vehicle or she would pick him up from work. He agreed that he had given her a list of things about which he was not happy and told her that he expected changes from her.

He also acknowledged that on the evening of August 25, he was a guest in her home. [ 28 ] He admitted that he knew that Ms. Fikoloma had a very low tolerance to alcohol but did not feel it necessary to monitor her consumption because his focus was on the conversation they were having. He denied that she passed out but acknowledged she told him

that she was feeling tired and woozy and felt like throwing up. When asked if he was aware that this was because of the alcohol, he replied “in hindsight”. [ 29 ] As Ms. Fikoloma had invited him to her home and since she paid the rent, he was of the belief that she would have to ask him to leave. As she had given him permission to stay, he did not believe the children, as minors, could evict him from the house. When asked if he could understand that Ruth might have thought something bad had happened to her mom, he said he could not even though he simply believed that Ruth “had it in for him”.

She promptly began screaming when she pulled down the bedcovers. [ 30 ] When it was suggested that he could have left when Ruth screamed, he said he was too intoxicated to get up the stairs and could not have left the house under his own power. He described the police officer as having to hold him up to assist him to the patrol car. Constable Hobbs, who dealt with the accused for some three to five minutes described him as calm, collected and concerned.

Although he smelled of alcohol, she saw no symptoms or behaviour associated with intoxication. [ 31 ] The accused admitted that he used the belt to ensure that the children left him alone. ISSUE [ 32 ] The only issue is whether the Crown has established beyond a reasonable doubt that the accused committed an assault which was not

an act of self-defence. ANALYSIS [ 33 ] Having reviewed and considered the evidence as a whole, I do not accept the evidence of the accused, nor am I left with a reasonable doubt by it. His description of the events in the basement is self-serving, contrived and at times, overstated. For example, although he says that he was so affected by drink that he could not climb the basement stairs unaided, a police officer who saw him within moments, contradicts his evidence. Indeed, his condition was a stark contrast to the officer’s observations of Ms. Fikoloma. By all accounts, Ms.

Fikoloma was grossly intoxicated, yet the accused says that he only recognized that fact in hindsight in spite of his previous knowledge that she could not tolerate alcohol. Even with the benefit of hindsight, he could not acknowledge that a 14 year old might be worried about seeing her mother, who rarely drank, unconscious and naked from the waist down. [ 34 ] His explanation that he armed himself with a belt because he feared “that he would not make the night” in the face of the confrontation by Michael, Cynthia and Ruth is incredible.

That he did not consider leaving the residence as an option because he was unable to function properly and feared being arrested for public intoxication defies logic, reason and the independent evidence of Constable Hobbs. In short, I find his evidence to be an unbelievable attempt to rationalize his bad behaviour. [ 35 ] Has the Crown established the elements of the offence? With respect to the allegation of assault upon Ruth Chimbanga, I am satisfied that the elements of the offence have been made out.

I specifically reject the evidence of the accused that he armed himself solely for the purpose of defending himself. I accept that he struck out at Ruth in anger or retaliation for her perceived audacity in being concerned for her mother and imposing herself on his private time with Ms. Fikoloma. I also find that the accused was asked by Ruth, Cynthia and Michael to leave the residence and when he refused to do so, he became a trespasser. His mistaken belief that only Ms.

Fikoloma could retract the invitation which she had earlier extended is no defence to the charge of assault. [ 36 ] Although there were several inconsistencies or discrepancies in the evidence of the Crown witnesses as to why Ruth went downstairs in the first place, who was present at various times during the altercation, who called the police, who let them in and the sequence in which events occurred, all the witnesses were clear on the pivotal point.

That is, the accused in the midst of a verbal argument and in the face of rightfully being asked to leave the home, chose to arm himself with a belt which he used to strike Ruth. I do not accept that Michael, Cynthia and Ruth accosted him in the manner that the accused described nor do I accept that the accused used the belt because he feared for his own safety.

[ 37 ] The evidence of Ruth and Cynthia, along with the physical injury to Ruth which is consistent with having been struck by a belt, satisfies me beyond a reasonable doubt that an assault was committed on Ruth Chimbanga which was not

an act of self-defence and I find the accused guilty. [ 38 ] With respect to the allegation of assault on Cynthia Chimbanga, I am left with a reasonable doubt on the whole of the evidence for the following reasons. First, the evidence does not disclose a clear accounting of the interaction between the accused and Cynthia or the specific context in which it occurred. Although Cynthia testified that the first physical contact was the accused grabbing her and pushing her onto the bed, it is not clear how or why that occurred.

Cynthia, on the whole, was vague in her description and there is nothing in the testimony of Ruth to support this assault as described by Cynthia. Rather, Ruth says the first physical contact was Cynthia slapping the accused. I have also considered whether the accused in brandishing the belt also committed an assault on Cynthia, even though there is no evidence that it actually struck her. Only Cynthia says that she positioned herself between the accused and Ruth when the belt came out. If that was the case, it would seem likely that she would have been struck.

Ruth and Michael are silent on where Cynthia was positioned at the time that the accused swung the belt at Ruth. On the whole, I find that the evidence is too uncertain to found any conviction with respect to Cynthia and the benefit of the doubt must favour the accused. Accordingly, he is found not guilty of the assault on Cynthia Chimbanga. ____________________ M.L. Gray, J