Her Majesty the Queen - v. -, 2016 SKPC 118

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 118 Date: September 20, 2016 Information: 90210089 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Richard Allan Johnson Appearing: Mr. Daniel Forbes For the Crown Mr. Brendan Pyle For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Richard Allan Johnson is charged with threatening by text message to cause death to Steven Sanderson and assault causing bodily harm to Steven Sanderson.

The charges arise out of a single incident that occurred on July 12, 2015. In this matter, I must do a WD analysis, and determine if the Crown has proved the charges upon a reasonable doubt. THE EVIDENCE

[ 2 ] The first Crown witness was Mr. Steven Sanderson. He is 39 years of age, and has lived in Weyburn for approximately ten years. At the time of this incident he was residing with his girlfriend, Ms. Cassandra Bain. He said that he and Ms. Bain had been in a relationship for about four months prior to this incident. But their relationship ended after this incident. [ 3 ] On July 12, 2015, they had walked from their home to downtown Weyburn, and were walking back. They were in a back alley near 3 rd Street. At that time, a blue SUV pulled up and suddenly stopped. Two guys jumped out and chased him.

One was carrying a long pipe and the other was carrying a bat. [ 4 ] He testified that the driver of the vehicle was Ms. Carol Bain, Cassandra Bain’s mother. He said the mother hollered something like “sick him and get him”. The two men who jumped out of the vehicle chased him. [ 5 ] One of the men chasing him was Cassandra’s brother, Bryson Bain. Bryson had blondish frizzy hair. The other fellow had darker hair. At the time, Mr. Sanderson did not know the other individual. [ 6 ] At first, Mr. Sanderson indicated that Bryson Bain carried a baseball bat and the fellow with the darker hair carried a pipe.

He later asked to correct this, and indicated that Bryson Bain was carrying the pipe and the fellow with the darker hair was carrying the baseball hat. He said it was a standard baseball bat. It was about three feet long and brown. [ 7 ] Mr. Sanderson testified that the three men immediately began to run down the alley. He was in the lead, followed by Bryson Bain, and the fellow with the darker hair was in the rear. Quite quickly and in the alley, Bryson Bain threw the pipe at him, but missed him. He ran north up the back alley, and then turned left and ran west along the street.

He said the two men caught up to him after about 300 feet. As they did so he either tripped or was pushed over and fell into a hedge along the sidewalk. He indicated the two men stated that “he would get what he has coming”. As he was in the hedge, Bryson Bain struck him several times with his fists. He estimated he was struck by Bryson Bain approximately ten times. He was struck with fists in the shoulder arms and abdomen area. He testified that he was also struck in the legs by the fellow carrying the bat. He estimated he was struck in the legs 10 to 15 times.

In court, he identified the accused, Richard Allan Johnson as the slender fellow with the dark hair, who wielded the bat. He indicated that two police cars pulled up, and that stopped the attack. The two attackers fled. [ 8 ] He spoke to the police and gave a statement. He took one of the police officers, Melinda to where the pipe had been thrown. She took a number of pictures, and seized the pipe. He indicated that he suffered from extensive bruising and could not put any weight on one leg for about two weeks. That leg is still tender.

Otherwise he is generally okay. [ 9 ] He was shown a number of pictures that were taken later that day by police. They show a number of his injuries, the pipe that was found laying on the ground, and a close up of that pipe. [ 10 ] Lastly, he indicated that he had not had anything to drink or consumed any drugs that day. Further that he did not communicate or threaten either of the attackers in any way. [ 11 ] Under cross-examination, he testified that the entire incident took maybe 20 minutes. He estimated the foot chase at three minutes.

Sometimes, he appeared somewhat confused or contradictory as to which individual struck him with fists and which individual hit him with a bat. He indicated that he was attempting to cover himself up to protect himself from blows, and could not be exactly sure as to which individual did what. He was adamant however, that both of the individuals participated in the attack upon him. He was adamant that he was pushed and fell into the shrubs, then both of them were there, and both struck blows.

At that time one individual repeatedly struck him with fists and the other individual repeatedly struck him with the bat. [ 12 ] Cassandra Bain testified that she is age 24 and lives in Weyburn with her boyfriend. She has lived in Weyburn for approximately two in a half years. She testified that she and Steven were walking in the alley when her family showed up. Her brother

jumped out and began chasing Steven. Further that her mother told Rick to stop Bryson before it got worse. [ 13 ] She identified her brother, Bryson Bain and the accused Richard Johnson. Bryson is her brother and Mr. Johnson is her step- father. Both of them were in the vehicle when it stopped. Both were chasing after Steve. She said Bryson may have been carrrying a lead pipe. She wasn’t sure. They ran away from her. [ 14 ] She testified that she and her mom went toward her house. The vehicle was parked down the street from her house. Later that day she saw Steve Sanderson at hospital.

She denied that she discussed this incident or testimony with her family. [ 15 ] Under cross-examination, she said she had three children. The day before was her daughter’s birthday party. She missed that birthday party. [ 16 ] She indicated that after Bryson and Rick jumped out of the vehicle, she had a little argument with her mother while in the alley. They argued about her drinking and kids. Then her mom left. Later the cops came to her place and drove her to the hospital. [ 17 ] Constable Melinda Mintenko testified that she has been with the Weyburn Police Service for 16 years.

On July 12, 2015, she was on general patrol duty. She was in a marked patrol car and in full uniform. She was by herself. She was on Highway #39, headed in the direction towards Regina. At that time, she looked over and saw three guys running. She later testified that the guy running in front was Steven Sanderson. The guy running in the middle was shorter with blonde “poofy hair”. (This was Bryson Bain). The guy furthest back was a male with darker hair. (This was the accused Richard Johnson). She testified that the guy running at the back was carrying a bat. [ 18 ] She was on Highway #39, but within town limits.

She said she was boxed in by traffic and the traffic light. She activated her lights and siren, but until the traffic light changed, the traffic could not move and she could not move. As soon as the light changed she was able to get to the intersection, around the corner and over to 3 rd Street where the incident was occurring. As she pulled up to the location, she saw Steven Sanderson on the ground and by the bushes in front of house number 28. The other two individuals just fled the scene. She spoke to Mr. Sanderson. Later he took her to a place where she found the pipe laying on the ground.

She took pictures of the pipe and seized it. It was entered in court as an exhibit. She described Mr. Sanderson’s injuries. She said Mr. Sanderson had “puffy legs”. They looked swollen and had a number of cuts and abrasions. There was some fresh blood but no big or open wound on his legs. He also had cuts and abrasions on his face. She took him to hospital to be examined. [ 19 ] Under cross-examination, she clearly stated that she saw three people running.

The back person was carrying a bat and was catching up quickly to the other two. [ 20 ] The Crown case was closed. [ 21 ] Bryson Bain was the first witness called by defence. He testified that on July 12, 2015, he, and Richard Johnson and his mother came from Portal to talk to Cassandra. He said his age is 23. He testified that Rick was driving, and his mother was in the passenger seat. He was in the rear seat of the vehicle. He said they were going to talk to Cassandra and Steve. On the way they saw Cassandra and Steve walking.

At that time he jumped out of the vehicle before it stopped “ because I had revenge on my mind”. [ 22 ] He testified that the night before Steve had called him a goof. Further that Steve had texted him indicating that his sister was on her knees in front of him, like she always is. He said that he has respect for his sister and family honour. That is why he had revenge on his mind. [ 23 ] He testified that just before he jumped out of the vehicle he grabbed the pipe. He chased Steve down the back alley and threw the pipe, but didn’t hit him. He then clearly said “we finally caught up to him”.

He was immediately corrected by Mr. Pyle, who said “you finally caught up to him”. He agreed that he finally caught up to Steve who had fallen into the bushes. He said that he hit Steve several times with his fists. Even though he said he immediately ran after Steve, jumping out of the car as it was still moving, that he

clearly remembered his mother telling Rick to stop him before he could do more damage. He said he has an anger issue, and doesn’t know when to stop. He said the incident ended because “we got out of there and left”. [ 24 ] He testified that Rick did not have a bat. He indicated that he hit Steven several times in the head, ribs and shoulder areas. He said he booted Steve. He may have stepped on his leg at that time. [ 25 ] Under cross-examination, he testified that he now lives in British Columbia, and has resided there for about four months.

He did not know the accused Steven Sanderson well, but has known him since he was about 17 years of age. [ 26 ] He indicated that the night before he was exchanging text messages with Steven Sanderson. That is what really set him off. He then said that they went to Weyburn to talk to Cassandra. He said they wanted to talk to her about why she missed her daughter’s birthday party. He just went along to talk to his sister. [ 27 ] He indicated that the pipe was an extension for his jack that was in the back of Rick’s vehicle.

The jack was in the back of Rick’s vehicle because the vehicle did not come with a jack. [ 28 ] He was adamant that Steve stumbled over his own feet and fell into the bushes. However as soon as he tried to get out of the bushes the witness said “he cold cocked Steve”. He said that he only hit Steve this one time, then Rick showed up. He then struck Steve several more times. He said he heard the sirens. Rick said “we’ve gotta go”. Further: “enough is enough”. They both got out of there. He said they got back to their vehicle and left right away.

He never did speak to his sister on that day. [ 29 ] Under cross-examination he was also asked what he had on his hands. The witness indicated that he wore black leather gloves. He said he always wears black leather gloves. Later I asked him where the gloves were. He said they were in the back seat of the vehicle and apparently he grabbed them and put them on before grabbing the pipe and jumping out of the vehicle. [ 30 ] He indicated that Steve was laying in the shrubs when they left. He said he didn’t know how badly Steve was injured.

He indicated that Steve wasn’t injured much, as he was still moving. [ 31 ] The last witness was the accused, Richard Johnson. He testified he is 34 years of age. He is presently living in British Columbia, staying at his brother’s residence with Carol Bain. He referred to Cassandra Bain as his stepdaughter. [ 32 ] He testified that on the day in question, they drove to Weyburn to lecture Cassandra about her drinking. He said she doesn’t listen. This has been an ongoing battle for some time. The day before, Cassandra missed her daughter’s birthday party. She called on the telephone, but was very drunk.

They went there to lecture her about her drinking. Also, they went to see if she was still drunk or drinking. He said this was like many times previous. [ 33 ] He indicated that he was driving, Carol Bain was in the passenger seat and Bryson Bain was in the backseat. When they saw Cassandra and Steven, he stopped. Bryson and Carol immediately jumped out. He jumped out as well. Carol told him to stop Bryson. “She knew what he was going to do”. He gave chase and went around the corner, where he saw Steven “trip over his own two feet”.

He was trying to get up when Bryson hit him and knocked him back down. [ 34 ] He indicated that he got up to the spot where Bryson was hitting Steven. Bryson kept hitting Steven. He testified that he didn’t try to stop Bryson as he would likely be hit. Rather, he kept yelling at Bryson to stop. He said “enough is enough”. “We’re done; we’ve gotta go.” He testified they got back to the vehicle, jumped in the vehicle, found Carol and immediately left Weyburn. [ 35 ] Under cross-examination, he reiterated that they went there to lecture Cassandra. He said Cassandra has a drinking problem since she was about 16.

This was an ongoing battle. He indicated that they lectured her many times prior to this. It never worked. They lectured her too many times to count. However on this day, they never did lecture Cassandra. He never spoke to Cassandra at all. Rather, they picked up Carol and went home. He indicated that he heard the sirens, but didn’t know what they were for. He made a

comment like “you never know”. Later however, he indicated they “just wanted to get out of there.”. That’s why they didn’t go get thepipe. [36] He also admitted that they were concerned about Cassandra dating Steve, and that none of them liked Steve. ANALYSIS AND DECISION [37] Both counsel referred to the case of R v W.D. (1991), 66 CCC (3rd) 397 (SCC). Both counsel argued that doing a WDanalysis should or should not lead to a conviction. [38] In the case of R v Berg, 2016 SKPC 55, I referred to R v W.D. supra and R v P.N.M. (1995), (SK CA), 141Sask R 221 (CA). At paragraph 33, I quoted Mr.

Justice Tallis from the P.N.M. case, and then made the following comments: Mr.

Justice Tallis summed up the W.D. instruction as follows: 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.

Other case law makes it clear that the process does not involve simply choosing between the accused’s evidence or some piece of theprosecution evidence. There must be a considered and reasoned basis for picking certain evidence over other evidence. The case lawalso makes it clear that the four questions, enunciated by Mr. Justice Tallis, are not water tight compartments. One person’s evidence isnot considered in isolation, but in relation to the whole of the evidence. In addition, there may be considerable overlap.

As a result,reasons for rejecting some evidence may be closely related to or indeed the same reasons for acceptance of other evidence. [39] The evidence of Steven Sanderson is clear that he was chased by and assaulted by two persons, Bryson Bain and RichardJohnson. He is not clear and sometimes contradictory as to which individual struck him with fists, and which individual hit him in thelegs with the baseball bat.

He is very clear however, that both individuals were involved in the assault, one striking him repeatedly withfists, and the other repeatedly striking him in the legs with a baseball bat. [40] Steven Sanderon’s evidence is corroborated in important ways. Firstly, it is clear from all of the evidence that the pipe wasthrown at or toward Mr. Sanderson very early, and when the parties were still in the back alley.

Thereafter, it was not utilized oraccessed by any of the parties during the assault. [41] Constable Mintenko clearly testified that the last person in the chase was the dark haired individual, the accused, RichardJohnson. She testified that he carried a baseball bat. It is significant that she saw the parties only after they had exited the alley and wereon the street. In other words, this was well after the pipe had already been thrown and left behind.

She later seized the pipe from theback yard, and it was entered as an exhibit. [42] In his examination- in-chief , Bryson Bain clearly said “we finally caught up to him”. He was immediately stopped andcorrected by counsel. He then spoke about Rick coming from behind and not participating in the assault. [43] The evidence of Bryson Bain and Richard Johnson does not establish any reasonable doubt upon which I could acquit. In myview, the entire scenario as they have laid it out is completely unbelievable. In addition, both Mr. Bain and Mr.

Johnson told somedeliberate untruths which caused me to disregard their evidence.

[ 44 ] As mentioned, the whole scenario is entirely unbelievable. Supposedly they came to Weyburn to lecture Cassandra on her drinking. However, they said this was an ongoing battle for years, and they had lectured her many times previously. None of the lectures had ever worked. So why they were then going to Weyburn on this day to lecture her once again, is inexplicable. [ 45 ] While they were apparently going to Weyburn to lecture her, Bryson Bain “already had revenge on his mind”. Supposedly, this was the result of events the preceding evening with texts between him and Steven Sanderson.

I conclude that the revenge that he had on his mind did not involve the lecture of Cassandra, but rather involved the assault of Steven Sanderson. He would have us believe that he came to this conclusion all on his own and in no way communicated that decision to the co-accused Richard Johnson or to his mother. I gather that it was purely by coincidence that he was asked to come along and participate in this lecture.

Again this is unbelievable. [ 46 ] It is also unbelievable that his jack and his pipe (jack handle) were both in the back of the SUV and conveniently located within his reach so that he could just grab the pipe and quickly exit the vehicle. It is also unbelievable that for this one and one half hour trip to lecture his sister that he had his leather gloves right with him in the back seat, again conveniently located so that he could pull them on immediately before jumping out of the vehicle.

In my view, it is similarly unbelievable that he could pull on these gloves grab this jack handle or pipe and exit this vehicle as it was still rolling, completely to the surprise of the co-accused and Ms. Bain. [ 47 ] If the incident had occurred entirely as related by Bryson Bain and Richard Johnson, then Mr. Sanderson would have suffered no or very minimal injuries to his legs. I conclude that the significant injuries that he suffered to his legs are caused by being struck by the baseball bat. [ 48 ] Both Bryson Bain and Richard Johnson testified that they heard the sirens. Mr.

Johnson said that he hears sirens all the time and he didn’t know what the sirens were for. In my view this is a deliberate lie. The sirens were activated during the course of the chase and the assault. The sirens got closer and were right there when the accused and Bryson Bain took off. It was a serious assault. He had to know that the sirens were related to that assault and the police would be there immediately. Moreover, Bryson Bain testified under cross- examination that Rick said “enough is enough” and “we’ve got to go”.

It is clear that Richard Johnson heard the sirens and realized the police be there almost immediately. He realized they had to get out of there and was instrumental in pulling Bryson Bain out of there so they could go. It is also clear that they left without picking up the pipe. Clearly they did that because they had no time to wait around and look for the pipe. It is also clear that they left town immediately because they knew the police would be looking for them.

There clearly was no time for them to talk to or lecture Cassandra about her drinking. [ 49 ] Lastly, both Bryson Bain and Richard Johnson testified that they did not know if Steven Sanderson was injured. They testified that they left him lying in the bushes when they took off. I conclude that any statement about not knowing whether Steven Sanderson was injured was also an outright lie. Under all of these circumstances, it was very clear that he had been injured.

They were attempting to get out of there quickly to avoid responsibility. [ 50 ] On the basis of all of the evidence, I am satisfied beyond a reasonable doubt that both Richard Johnson and Bryson Bain acted in consort. They acted in consort to effect an assault upon Steven Sanderson, which caused him bodily harm. They acted in consort in that assault by one of them repeatedly striking Mr. Sanderson with his fists, and the other repeatedly striking Mr.

Sanderson on the legs with a baseball bat. [ 51 ] On the basis of all of the evidence, I find Richard Allan Johnson guilty of the charge of assault causing bodily harm. There was no evidence the accused sent any texts or threatening texts to Mr. Sanderson. This charge is dismissed. Dated at Weyburn Saskatchewan this 20th day of September 2016.

_____________________________ D. Kovatch, J