Her Majesty the Queen - v. -, 2014 SKPC 195

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 195 Date: December 8, 2014 Information: 24038613 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kyle Ekstrom Appearing: J. Claxton For the Crown B. Pfefferle For the Accused JUDGMENT B.M. SINGER , J Introduction [ 1 ] Mr. Ekstrom is charged in four separate counts with assaulting Sydney Graham, T.M.2, T.M.1 and Tristan Morrison with a hockey stick on the 6 th of September 2013.

Allegedly all of these assaults occurred during a frosh party when each of the victims, youth between the ages of 14 and 15 at the time, were paddled by the Accused and several others during a hazing that was to be part of their “welcome” to high school. The Accused admitted paddling Sydney Graham but argues that he is not guilty of assault as Mr. Graham consented to the paddling. He denied paddling the other youth.

Evidence of the Crown [ 2 ] The party was held at a place in the bush a few miles out of the town of Lanigan, Saskatchewan. Over the years it had become a tradition to welcome Grade IX students, usually ages 13 - 15 to the Lanigan High School by subjecting them to a type of hazing involving covering them with syrup, flour, eggs and sugar, and by paddling them. The paddling involved hitting each student with a modified goal stick or boat oar, on their buttocks. The party involved a lot of drinking, most of it voluntarily and some by acquiescence as part of the hazing.

Apparently, this had gone on, in this form, for many years. [ 3 ] The party was well known in the community and many of the parents of the youthful freshies seemed to be well aware that their children and others would be smoking marihuana and drinking alcohol. The particular victims in this case were all driven there by one of the parents and brought their own drugs and beer, supplied by at least two of the parents.

As far as I could tell there was no adult supervision at the party and no one was of drinking age; however, the community seemed to approve of the party and the activities that went on there. [ 4 ] The young complainants all got very drunk. They were not able to give precise evidence, but on the whole there was clearly a consistent theme in what each said. All of them, except Tristan Morrison, went there expecting to be “ freshied ” . All of them, except Tristan, expected to have syrup poured on them, as well as flour, sugar and eggs and all, except Tristan, expected to be paddled on their bums.

Sydney Graham, for example, described the paddling as follows; he was asked to bend over and he did, he was struck on his butt cheeks with the paddle, which was a modified goalie stick, his clothes were on and he was only hit once by each paddler, further over the night he was paddled many times. Sydney also reported that when he asked one of the paddlers to stop as he was in pain, the paddler stopped. With only slight variations, each individual youth testified that the paddling occurred in roughly the same manner.

None of them refused to be paddled, all of them agreed to it. [ 5 ] Sydney reported that after it was over he had too much pain in his legs to walk. He attended the hospital and received painkillers that he had to take for about one month. The others all had red buttocks or thighs; all reported some pain, for a few days at least. [ 6 ] Most of the victims were unable to identify the paddlers and in particular they could not say that the Accused was one of them. They were, after all, new to that school and did not know the seniors.

It was dark, the only light coming from a bonfire, and they were drinking heavily. [ 7 ] T.M.1 testified that he got paddled and he saw Tristan Morrison, T.M.2 and maybe Dylan Urlacher get paddled by about five different individuals but he could not say who. He could not reliably identify Kyle Ekstrom as one of the paddlers. [ 8 ] T.M.2 testified that T.M.1 was paddled but he too could not reliably identify the Accused as the paddler.

Similarly Dylan Urlacher reported T.M.1 was paddled by several guys, but only saw the Accused paddle Sydney and no one else. [ 9 ] Tristan Morrison was 15 at the time of the party and in Grade X. It became known at the party that he had missed getting “ freshied ” the year before, so he too became the subject of the paddling. He testified that one of the persons who paddled him was the Accused and that he saw the Accused paddle T.M.2 and T.M.1 and another, shortly after they all arrived at 9:00 p.m.

He knew the Accused from school as he had attended that same school in Grade IX and at that time the Accused had been a senior there. He and his friends all got very drunk except for Dylan Urlacher. Tristan had bruising on his legs but not his buttocks and a bruise on his back where he had been struck by an egg. The paddle he received from the Accused was perhaps to his buttocks. [ 10 ] Tristan said he was told to lean over the tail of a truck and he was paddled by a number of individuals, including the Accused.

He described the type of swing that the Accused used holding the paddle two-handed like a baseball bat and swinging at his buttocks. However, it is not clear how he could see this if he was bent over the back of an open tailgate of a truck. Furthermore, he was quite drunk that night and while he professed a clear memory, his evidence as a whole, did not convince me that his recollection was

particularly reliable. [11] Brandie Failler testified that she also was at the party, she was neither a freshman or a senior and seemed to have a relativelyclear recollection of the events of that night. She saw the Accused paddle Sydney Graham and T.M.2, but no one else. She recalled thatTristan Morrison was very drunk. [12] C.M. is T.M.2 and T.M.1’s older brother. He was a paddler at the party, had been charged as a youth with offences arising fromhis involvement that night and had been sentenced at the time of this trial.

He testified that he saw the Accused paddle not only Sydneybut also T.M.1 and T.M.2, but not Tristan. He too had been drinking. [13] Other evidence was called that the Accused may have hit one youth with a paddle, and possibly two, but no others. [14] In assessing the evidence of the Crown, I determined that the M. brothers, T.M.2 and T.M.1, gave unreliable evidence as theyadmitted to testifying that Kyle Ekstrom was a paddler only because others had told them that he was.

I have the feeling that a lot ofpost-incident discussion and blame occurred after the youths had sobered up the next day and after being encouraged by their parentsthey went to the police after that discussion. It was dark at the scene of the party and the light was poor as it was only coming from thebonfire. Many people were paddling and the recollection of the witnesses was clouded by alcohol and possibly marihuana and thosewitnesses were inexperienced drinkers. Evidence for the Defence [15] The Accused testified that he did paddle Sydney Graham, once on the buttocks hitting him hard enough to make it smart.

He saidhe did not hit anyone else. [16] The Accused was 18 years of age at the time of the party. He had graduated the year before and had lived in Lanigan all his life. He had been subjected to paddling when he was in Grade IX. At that time he had been egged, floured and as one of the youth describedit, syrupped. He had been struck with a paddle at least 15 to 20 times and been shot at by a paintball gun. He had been to two or threefreshman parties in the past and saw nothing wrong with what went on. That night he had gone to the party with two of his friends whowere seniors at the school.

He thought there were about 75-80 people present including Grade IX’s and XII’s. While there, he was givena paddle and then walked up to Sydney Graham, and asked him if he was ready. Sydney turned and was paddled once, fairly hard, theAccused using about 50% of the strength he would use to swing a ball bat. He is unable to say why he paddled Sydney as “It wasn’t hisjob to do so”. After all, he was not a senior and had graduated the year before. He drank about nine beer that night and felt he was soberuntil about midnight when he agreed that he was feeling the effects of the beer he had drunk.

No other evidence was called by thedefence. Factual Findings [17] In this case the Accused testified, as did the victims, and courts have been directed by the Supreme Court in R v W(D), (SCC), 1991 63 CCC (3d) 397 and by our Court of Appeal in R v McKenzie, (SK CA), 1996 141 Sask R221, that credibility does not involve a Court opting for one version over another, rather the Crown must prove that its evidence iscredible and even if the Court prefers the evidence of the Crown, it must still consider whether the evidence of the Accused raises areasonable doubt.

In this case I have no doubt that the Accused did paddle Sydney Graham, however, I do have doubt whether hepaddled anyone else and if he did, who that person or persons were. That is not to say that all of the victims were not paddled, I justcannot determine, beyond a reasonable doubt, that they were all paddled by this Accused. Issue

[ 18 ] The defence argues that in this situation Sydney Graham consented to the hazing and that while the Accused did paddle him, such consent means that no crime was committed. [ 19 ]

Section 265 of the Criminal Code says: 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. Application

(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. Consent

(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. [ 20 ] Times change and some communities change more quickly than others. What was tolerated as good fun by one generation, like hazing freshmen at a high school, is now considered harmful and is scorned, especially if it involves bodily harm. [ 21 ] In the case before me, syrup, flour, and eggs were poured or smashed on the freshmen’s heads and bodies, actions which, by definition constituted an assault, yet the Crown and the police were not concerned with that, what concerned them is the paddling, because the paddling caused bodily harm. Soreness and pain for at least a month is bodily harm.

[22] Sydney Graham, when he went to the party, knew he was going to be syrupped and egged. He also knew he was going to bepaddled. He participated in it without coercion (I did not hear evidence of the coercion of peer pressure but in a community that toleratesthis behaviour, it is difficult not to infer that the youth felt coerced to cooperate). A simple reading of the Criminal Code

section seems toimply that for an assault to constitute a crime, the Crown must prove that there was an application of force by one individual on anotherand that the other did not consent. Thus a surgical operation is an assault but for the consent of the person operated on and as well, therough and tumble of sport is perfectly legal. [23] However, as a matter of common law and public policy, as a general rule, in a consensual fight, for instance, the parties cannotconsent to serious bodily harm. [24] The leading case explaining this is R v Jobidon (1991), (SCC), 66 CCC (3d) 454 [Jobidon].

Jobidon is limitedto some extent “to clarify the role of consent to a fist fight or brawl” (p. 471). Even though the Criminal Code says that consent canvitiate assaults which cause bodily harm (s. 265(2)), the Court held that for policy reasons in fist fights or brawls resulting in seriousbodily harm, consent cannot apply.

As Gonthier J. said at p. 294: The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adultsintentionally to apply force causing serious bodily hurt or non-trivial bodily harm to each other in a fist fight or brawl. [25] The Court goes on to say parenthetically “This test entails that a minor’s apparent consent to an adult’s intentional application offorce in a fight would also be negated.” (p. 494) [26] Paddling is not a fist fight.

However, the reason for the rule, that consent was vitiated if the harm caused was serious, is thepolicy consideration based upon the belief that fist fights were totally socially useless and the Court’s belief that it was not in the publicinterest that adults should willingly cause harm to one another without good reason. Does a paddling of the kind that occurred in thiscase have any social usefulness?

If it does not, then the common law would suggest that any consent given would be vitiated; vitiatedmeans to be rendered legally ineffective. [27] The policy reasons and legal principles informing Jobidon, that a victim cannot consent to the infliction of serious bodily harmupon himself, unless the assaulter is acting in the course of a generally approved social purpose when inflicting the harm, has beenapplied in circumstances other than a fist fight or a brawl and the test has been slightly expanded in further case law.

For instance in thecase of bodily harm which occurred during consensual but rough sex, the Ontario Court of Appeal decision of R v Welch (1945) (ON CA), 101 CCC (3d) 216 said at p. 239: Although the law must recognize individual freedom and autonomy, when the activity in question involves sexual gratification bydeliberately inflicting pain upon another that gives rise to bodily harm, the personal interest of the individuals involved must yield to themore compelling societal interests which are challenged by such behaviour.

The Court concluded such activity was “degrading and dehumanizing” and therefore had no socially useful purpose. The Court extendedthe rule in Jobidon to apply to this type of behaviour where bodily harm was caused. [28] In the case of R v Bruce, (BC CA), 1995 BCJ No 212, the Court of Appeal extended the rule beyond fistfights and brawls to cases of domestic violence. [29] It is important to remember that while surgery and sports appear to have little in common except the potential for serious bodilyharm, neither activity has as its central point or objective the causing of bodily harm.

Indeed, even such sports as prize fighting or fullcontact, mixed martial arts can be exceptionally brutal, but such contests are decided without serious bodily harm being caused to theopponent, in other words, causing harm is not the ultimate purpose of the activity. The opponents in such sports are equally exposed tophysical risk, equally capable of causing harm to one another, and equally able to consent to the risk of harm. The point is to establish awinner within the rules of the game.

The presence of mutually binding constraints on the participants sets limits on what can be done inpursuit of victory, and there is always an official to mediate the proceedings. In neither surgery nor combative sports is a human beingreduced to the status of an object which may be arbitrarily abused or degraded for the enjoyment of others. Neither activity has as its

central purpose inflicting suffering or degradation. Inflicting pain and degradation serves no social purpose. [ 30 ] In the circumstances of the case before me, being hit a number of times, primarily on the buttocks, with a wooden paddle, to the extent that bodily harm was caused, was of no social value, its purpose was to be degrading and dehumanizing. Any consent given would have to be vitiated, that is it has no legal effect, because of the harm done. [ 31 ] Furthermore, any consent given would be vitiated by the fact that the Accused was an adult 4-5 years older than the youth he struck.

Lastly, any consent would also be vitiated by the fact that the Accused was not even a senior at the school but had graduated; it was not his job to inflict the paddling in any event. Conclusion [ 32 ] Consent is not a defence available to the Accused in this case and he is guilty of the one charge of assaulting Sydney Graham with a hockey stick. __________________________ B.M. Singer, J