Her Majesty the Queen - v. -, 2013 SKPC 044

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 044 Date: March 5, 2013 Information: 43374563 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Trzaskowski Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Jeff Deagle For the Accused JUDGMENT M. GORDON , J [ 1 ] Jason Trzaskowski is charged with two counts of common assault; one on Courtney his partner at the time and one on her daughter Alexa. Mr.

Deagle for the defence submitted that given the differences in the evidence between Courtney and Alexa, the only two witnesses, and the outright lie of Alexa in testifying to seeing the assault on her mother in the kitchen, that I should acquit the accused on the basis that the Crown has not proved the essential elements of the assault beyond a reasonable doubt. Mr.

Deagle goes on to suggest and asks this Court to infer that this mother and daughter are either fabricating or exaggerating the events of Sunday, January 22, 2012, and that Courtney is using this as a means to gain some advantage on the civil proceedings involving the division of property. [ 2 ] The Crown argued that the evidence clearly establishes that Courtney was the recipient of more than one incident of assault

[ 2 ] The Crown argued that the evidence clearly establishes that Courtney was the recipient of more than one incident of assault that day, first in the basement and then upstairs in her bedroom. The Crown submitted that it is not uncommon for the evidence of witnesses to differ about an event especially a traumatic event such as this. The Crown submitted if the evidence of both witnesses was identical that would and should raise more suspicion and concern for the Court. Finally the Crown submitted that there was sufficient evidence including corroboration (which is not necessary) of the assaults that occurred in the bedroom to convict. [ 3 ]

Section 265 of the Criminal Code defines the offence of assault: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused ’ s belief, to consider the presence or absence of reasonable grounds for that belief. [ 4 ] This case is entirely fact based.

First I will deal with the differences in some of the evidence between the two witnesses. [ 5 ] Alexa was 13 years of age at the time. She testified her mom picked her up from a friend’s in the afternoon, went to Tim Horton’s and then returned home. She does not recall going grocery shopping as her mother testified. While Alexa was in her upstairs bedroom, she heard the accused and her mom arguing downstairs in the kitchen. [ 6 ] The defence says I must have a reasonable doubt to whether any assaults occurred because Alexa admitted to telling a lie when testifying.

Alexa admitted in cross-examination that her mother had told her to say she saw the assault in the kitchen. She tried to correct herself and say that she heard her mother and the accused arguing in the kitchen. She readily admitted in cross-examination that she had heard her mother screaming but that she did not see Jason hit her mom at that point. This difference is not unusual. It was a scene which ended in her mother’s bedroom that was very upsetting. She said she was “stunned and did not know what to do”, so she called her dad back.

Giving her evidence of an event that occurred over a year ago, it was still painful for her to speak about it. [ 7 ] In my view Alexa is the one caught in the middle. She made a mistake. She readily admitted it. I do not believe that taints all her testimony. She was cross-examined vigorously about what happened in the bedroom. I believe her evidence. [ 8 ] Courtney testified to an assault in the basement; one being poked in the stomach with a vacuum hose and the other, the accused hitting her with his hand. Courtney admits to returning to the basement, smoking and drinking a bottle of wine.

She and the accused continued to argue. Later Courtney goes upstairs to her bedroom and has Alexa bring her Tylenol and a pot to throw up in. Courtney claims Alexa was home all day. Then at one point they went to Tim Horton’s and grocery shopping.

[ 9 ] In the bedroom both Courtney and Alexa’s evidence is that Courtney threw up and that the accused then threw the pot with the vomit at Courtney. Courtney had to change her top. The accused then struck her on the head. Both women testified that the accused then threw a three-quarter full bottle of lotion at Alexa and hit her in the side of the cheek. Neither victim sought any medical attention. [ 10 ] Alexa testified she didn’t really feel the bottle of hand lotion hit her on the side of the face. She said she was stunned. I take this to mean that she had not anticipated this action towards her.

There is no reason she would get medical attention. I reject the defence suggestion that this must not be true or could not have happened because she was not bruised or otherwise injured. [ 11 ] As to what occurred earlier in the basement, I am left with the evidence of Courtney. I have no doubt that she and the accused were arguing with each other over a period of time that Sunday. The exact sequence of events is not crucial.

What is important is whether I am prepared to accept Courtney’s evidence that she was assaulted by the defendant on January 22, 2012. [ 12 ] Courtney describes the incident starting with her comment that Mr. Trzaskowski did not bring her a tea back from Tim Horton’s. The yelling, arguing and sarcastic remarks started and continued while she went about doing the wash. The yelling and stupid remarks continued and at one point the defendant poked her in the stomach with a vacuum cleaner hose. She went over to the dryer and he struck her four to five times with the back of his hand.

There was further name calling by the defendant and the defendant even phoned a friend and said “come over and have sex with the bitch in the basement”. Courtney admitted to getting a bottle of wine from the kitchen fridge and returning to the basement to have a smoke. Courtney did admit in cross-examination that she saw stars when hit by the accused and had some swelling which lasted about three days. Neither Courtney nor Alexa sought medical attention. Courtney acknowledged the importance of seeking medical attention for any type of concussion. She works in the health care system at the hospital.

She explained she was too embarrassed to go to even a medical walk-in clinic. It is all well and good to suggest that Courtney should have sought medical attention. However, the reality is that many women in this situation react just like Courtney. They are embarrassed for many reasons and unless stitches or some medical procedure is obvious, they hide at home. She may not have wanted to reveal that she drank a bottle of wine. [ 13 ] Mr. Deagle argued that applying common sense Courtney’s explanation for not seeing a doctor makes no sense.

On the contrary, applying common sense, I would suggest it makes perfect sense. She does not want the public and especially those she works with or may even have just a nodding acquaintance with to know that she does not have a perfect home life. [ 14 ] As I have said, the only evidence of what occurred in the basement comes from Courtney.

While she was somewhat emotional in her testimony and details such as whether the son was present or not in the house, whether they went grocery shopping and whether Alexa had been at a friend’s, understandably differ between Courtney and Alexa. [ 15 ] I do not accept the defence suggestion that Alexa’s testimony that her mom told her to say Jason hit her in the kitchen taints the whole case. Courtney was never asked by the defence if she had told her daughter Alexa about these events.

The defence points to the fact that there were no photographs of Courtney and somehow that supports the defence argument that no assault occurred. Again, photographs can be of assistance however just because the police investigator did not take photographs, does not automatically lead to the conclusion that the assault did not occur. [ 16 ] Finally the defence suggested that Courtney only wanted this charge to go forward to get some advantage in the unresolved civil proceedings. That is mere speculation on behalf of the defence. Mr. Trzaskowski may think that, but no evidence was led.

There is legislation such as The Family Property Act and The Family Maintenance Act to deal with the obligations of the parties in such a situation. [ 17 ] Therefore considering all of the evidence, I am satisfied that the Crown has proved beyond a reasonable doubt that Jason Trzaskowski committed the assault as described in the information. He is guilty as charged on both counts. M. Gordon, J