R. v. Huyghebaert Date:, 2011 BCPC 43

Citation: R. v. Huyghebaert Date: 20110221 2011 BCPC 0043 File No: 55061-C-2 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GEOFFREY HUYGHEBAERT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: J. Krupa Counsel for the Defendant: D. Sudeyko Place of Hearing: North Vancouver, B.C. Date of Hearing: February 18, 2011 Date of Judgment: February 21, 2011 [ 1 ] The defendant is charged with assault causing bodily harm of Curtis Beggs on May 18, 2010. Mr.

Beggs testified to an unprovoked assault by the defendant and another man, in which he was struck several times by each and knocked or kicked unconscious. The main issue is complainant’s credibility, although defence counsel Mr. Sudeyko raised a secondary issue as to whether, even if I accept Mr. Beggs’s evidence, the Crown has proven bodily harm. [ 2 ] No defence evidence was called. Accordingly the issue is whether the evidence of the complainant is so unreliable that it would be dangerous to convict. [ 3 ] I will deal briefly with the issue of bodily harm before turning to credibility on the whole.

Bodily harm is an element of the offence like every other that must be proven beyond a reasonable doubt. It also has relevance to whether or not consent must be negated by the Crown: R. v. Jobidon . However, in this case, the complainant denied consent, asserting that he had his hands in his pockets during the assault. Because the defendant has not testified, in my view there can be no air of reality to a suggestion of either consent or self defence.

The only relevance of bodily harm here is to characterize the nature of the offence. [ 4 ] It will nonetheless inform the analysis regarding credibility on the whole to briefly review at the outset the complainant’s testimony about his injuries. Mr. Beggs described an assault by the defendant and another larger man whom he did not know. He said in his testimony that he was knocked to his knees and then to the ground. He was then kicked or kneed in the head. He blacked out, and awakened with his muscles “jittering”, and was unsteady on his feet immediately afterward. [ 5 ] Mr.

Beggs also expressed the opinion that he had a seizure, and testified to lingering impairment of his speech and balance for four days to a week. No medical evidence was called; nor was there any supportive evidence from anyone who may have witnessed these effects. The description of the injury is therefore dependent on Mr. Beggs’s evidence. [ 6 ] Mr. Beggs did not disclose those effects to anyone other than perhaps Victim Services before the trial, though he admitted to some opportunities to do so.

It is noteworthy as well that in his recorded statement to the police made the day after the incident, there were no apparent problems with Mr. Beggs’s speech. While he testified that he could not complete sentences for several days, on the recording he had no apparent issue with that; nor with carrying a train of thought. He sounds articulate, pronouncing words like

“altercation” without difficulty. Mr. Beggs said in his testimony that he heard laboured speech on the recording, but it wasn’t there to my ear; nor was there any apparent difference from his testimony. I have to find that the recorded statement is inconsistent with Mr. Beggs’s description of his injuries. [ 7 ] There is the added issue that the photographs of Mr. Beggs’s face shortly after the incident, very soon after, he said, show no injuries at all to his face or head. Mr. Beggs testified that he was struck 6 to 7 times in the face, then one blow to the back of the head.

This Court hears assault cases frequently enough that I find I can take judicial notice of the fact that one would expect to see considerable bruising from the number and nature of blows he described in his evidence. He did state in his evidence that the photographs were taken early enough that some bruising may not have come out, but Mr. Beggs has described this as an unprovoked, undefended assault by two people, one bigger than him, in which he was struck in the face repeatedly and knocked to the ground. I must find that the photographs are not consistent with his evidence.

At very least they do not support a finding of bodily harm, and at worse they reflect badly on the credibility of the complainant regarding the blows he received. [ 8 ] Moreover, the complainant could not say that he had a seizure. He was able only to testify that he was shaky and blacked out. He says he stayed a time in hospital, but again that is not substantiated by any supportive evidence. Any finding of bodily harm in this case is therefore entirely dependent on the credibility of the complainant. [ 9 ] I will turn to that larger issue now.

As I have mentioned, because the defendant has not testified, the ultimate question I must resolve is whether the complainant’s evidence is so unreliable as to make it unsafe to found a conviction on his testimony. That analysis stands or falls on its own however; I may not draw any conclusion or fill any gaps in the evidence based on the decision of the defence not to call evidence. The question is whether the testimony of the complainant has established a case to meet. [ 10 ] Dealing firstly with Mr. Beggs’s testimony in chief, there are a number of bases on which it may arguably be found wanting.

Firstly, he testified essentially that he was assaulted with very little provocation and not much by way of motive. As he would have it, the only dispute between him and the defendant was an argument a week earlier, about who should pay a $30 bill at the casino bar. Mr. Beggs described a confrontation in the parking lot in which the defendant assaulted him by elbowing him in the nose and mouth. He denied that he retaliated at all physically. On his theory the defendant remained so disturbed about this $30 that he retaliated a week later by confronting Beggs with a muscle man. [ 11 ] The motive provided by Mr.

Beggs in his direct evidence was weak, in my view. I note as well that on his own testimony there was nothing to suggest that the defendant would have even known Mr. Beggs would be where he was on the offence date, so it must have been happenstance that he encountered him while he had this bigger friend with him. It seems quite farfetched that, merely happening upon him, the defendant was still so upset about this bar bill situation that he and this friend beset upon Beggs and beat him senseless. [ 12 ] Secondly, as pointed out by Mr. Sudeyko, Mr. Beggs was not able to say who landed which blows on him.

While he was adamant that he saw each of the assailants strike him, his memory was somewhat hazy in other respects. There might accordingly have been some question on the basis of Beggs’s testimony in direct as to whether he was able to say that the defendant landed any blows, though he purported to be certain of that. [ 13 ] And so I must observe that even on the basis of Mr. Beggs’s evidence in chief a number of questions arose regarding his description of the incident.

The Crown theory was clearly that the two were parties, however, and that description may arguably have been sufficient to demand an answer from the defence. [ 14 ] It was in cross-examination that the more substantial credibility issues became apparent. I have already observed some problems regarding Mr. Beggs’s description of his speech as compared with the audio statement.

He also admitted in cross-examination to having told the police that the defendant slapped him with an open hand several times on the earlier occasion, a fact he stated he now did not remember. [ 15 ] While the entire statement to the police was not put to Beggs, he acknowledged it and it was filed as an exhibit. I was urged by both counsel to consider it. In that statement, Mr.

Beggs says, somewhat remarkably, that the two assailants walked up to him and one pulled his jacket over his head so he could not see what was going on. [ 16 ] He goes on: I guess the other one just started hitting me with their fists, mostly in the head; the back of the neck and in the head, and I guess I was knocked unconscious, and I was told by my other friends that they were kicking me, soccer kicking me in the front of the head, I don’t remember.” [ 17 ] The statement therefore squarely contradicts Mr.

Beggs’s testimony that he saw each of the assailants strike him, and suggests that his assertion that he was kicked is based entirely on hearsay. [ 18 ] I bear in mind that the Crown might raise the point that this portion of the statement was not put to Beggs and he accordingly did not have a chance to respond to it.

However, in my view it was entirely open and perhaps incumbent on the Crown in these circumstances to address in direct examination the obvious inconsistencies between the direct testimony and the statement their witness had previously made. [ 19 ] Indeed, given the degree of discrepancy between his testimony and the statement, one questions how the Crown could have concluded that the complainant’s testimony in direct regarding the incident was reliable. In any event, because the statement has been filed,

section 10 of the Canada Evidence Act permits me to make such use of it as I see fit, and I find it raises significant issues regarding the complainant’s credibility. [ 20 ] The other primary concern regarding the complainant’s credibility is his account of the prior incident in the parking lot. In cross- examination, Mr. Sudeyko showed Mr. Beggs the casino’s video surveillance tapes taken from various angles in the parking lot. I have

reviewed the video and find that it squarely contradicts Mr. Beggs’s evidence as to how that incident transpired. I agree with Mr. Sudeyko’s characterization of Mr. Beggs as aggressive from the outset, at very least clearly not intimidated. Mr. Beggs is obviously a much larger person. [ 21 ] Mr. Sudeyko says I may conclude that the defendant merely feigned the elbow blow but it is difficult to tell from the tape whether that connected. Mr. Beggs said it did; however, it is clear that if there was contact with that elbow blow, it was minor and did not cause either injury or any retreat on Mr. Beggs’ part.

He said he suffered injury from that, but there does not appear to have been any real force or impact that would have done that. [ 22 ] More importantly, the video discloses that the defendant pushed Mr. Beggs with two hands right after that, a fact not described by Mr. Beggs in direct, and in fact denied by him in cross. After that, on the video, Mr. Beggs follows the defendant to the driver’s side of his truck. The actions there as depicted on the video are consistent with Mr. Beggs having struck a number of blows on the defendant while he sat in the truck.

There are arm motions consistent with punches, and notably, the occupants of the car get out immediately after those occur. [ 23 ] Mr. Beggs completely denies any physical retaliation or involvement on his part on that date. His denial was coy, I note; he said things like the tape doesn’t show that or he wasn’t asked. Remarkably, however, there is another video right after the altercation clearly showing the defendant with a bleeding nose; clearly not something he could have feigned, without knowledge that the camera was even there.

Going back to the first video, it is apparent that immediately after the altercation at the truck, there is a dark stain on the front of the defendant’s shirt. Mr. Beggs tried to deny that the defendant’s nose was bleeding, and said if it was, he could not account for it. He suggested that maybe the defendant had a problem with nosebleeds. [ 24 ] Mr. Beggs’ statement to the police was also completely inconsistent with his testimony about the parking lot incident. He said he was struck twice in the head and “forced to defend” himself, which is consistent with his having struck the defendant in retaliation.

As I have mentioned already, he also told the officer that the defendant struck him with an open palm across the face several times. He said none of that in his testimony. [ 25 ] I find that Mr. Beggs’ denial of having struck the defendant on that occasion is completely untrue, based on the video. I would also observe that Mr. Beggs’ evidence on the whole regarding that incident seemed tailored to align only with what he believed he could not refute because of the video. [ 26 ] I would add to that the issue of motive to fabricate. Mr.

Beggs acknowledged that his employers had told him they were reviewing the video to see if there had been an assault, by him. He admitted this reluctantly, in my view. He was clearly evasive about the extent of his knowledge that the defendant was the source of the complaint. While the defendant may have had a motive to retaliate on the basis of what apparently occurred on the video, Mr. Beggs had his own motive, but was reluctant to admit it. [ 27 ] Mr. Sudeyko also points to other issues with Mr. Beggs’s testimony about that incident.

He refused to admit that he was moving toward the defendant; asserting instead that he was going toward the building, when the video showed clearly that he was moving toward the truck. Mr. Sudeyko also makes the point that the complainant had two friends with him, the defendant only one. He questions the reasonableness of a conclusion that the three would have stood by and permitted the two to light into Mr. Beggs, without intervening. He observes as well that Beggs’s companions were absent from court. Mr.

Beggs tried to suggest that they feared retaliation; however, there is no evidence to support that conclusion. In any event, whatever the explanation for their absence, it cannot assist in strengthening the evidence of the complainant. [ 28 ] Looking at Mr. Beggs’ evidence on the whole, I find that this is one of those rare cases in which it would be dangerous to convict based on his evidence alone. ___________________________________ The Honourable Judge C. Baird Ellan The Provincial Court of British Columbia