His Majesty the King - v. -, 2023 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 40 Date: June 26, 2023 Information: 90426903 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - Mohamud Dirie Appearing: Ms. Natasha Maclean For the Crown Mr. Evan Strelioff For the Accused DECISION S.D. S CHIEFNER, J [ 1 ] Following an incident that occurred on October 7, 2021 at the Saskatchewan Penitentiary (Penitentiary) in Prince Albert, Mr. Mohamud Dirie was charged with the offence of aggravated assault contrary to s. 268(1) of the Criminal Code .

A trial was conducted on May 12, 2023. [ 2 ] Having considered the evidence in these proceedings, I find that Mr. Dirie joined together with another inmate and assaulted a third inmate on October 7, 2021. While Mr. Dirie is not criminally responsible for all of the injuries sustained by the victim, the injuries that he is responsible for caused bodily harm to the victim. These injuries were not serious enough to meet the definition of an aggravated assault. As a result, I have found Mr. Dirie not guilty of aggravated assault as originally charged. However, he is guilty of assault causing bodily harm.

[ 3 ] The following are my reasons for coming to these conclusions. BACKGROUND [ 4 ] During the trial, the Crown called two witnesses. The first witness was Mr. Jordan Feltham, who was working at the Saskatchewan Penitentiary on the day of the incident. The second witness was Constable Chris Stroet, who was a member of the RCMP and who conducted an investigation into the incident. As was his right, Mohamud Dirie elected to call no evidence. [ 5 ] When violence occurs in a correctional facility, it is seldom the case that any of the inmates cooperate with investigators, even when serious injuries are sustained.

Such was the case in these proceedings. The victim, Brandon Peeteetuce, declined to cooperated when he was interviewed by Constable Stroet. As a result, he was not called to testify. On the other hand, most of the events relevant to these proceedings were captured by video cameras located throughout the Penitentiary. THE EVIDENCE Video Evidence [ 6 ] The Crown tendered three video recordings of events that occurred on October 7, 2021. I am satisfied that this evidence is reliable and an accurate depiction of the events that occurred on that day.

As a result, the disc containing the video evidence was accepted as a full exhibit in these proceedings without objection as “P-1”. It should be noted that P-1 contained 15 video recordings, although only three of these recordings were played as evidence in these proceedings. I have not placed any reliance on any of the other recordings. [ 7 ] Some background is helpful in understand the video recordings. The portion of the Penitentiary where inmates are located is divided into what are known as direct observation areas – secure areas where inmates are held – commonly referred to as “units”.

A typical unit will have more than one “range” – areas that contain cells, together with shared washers, dryers, showers, a kitchenette with seating and tables, and recreational facilities. The incident that was the subject matter of these proceedings occurred in Unit 7 in a recreational area between “I” Range and “J” Range (Recreation Area). Throughout the Penitentiary, movement between units and ranges is controlled by either locked doors or metal bars. Both the metal bars and the doors are controlled by correctional staff to permit or prevent movement of inmates between units and ranges.

There are other areas in the Penitentiary where inmates are not permitted (unless supervised). For example, there are observations areas adjacent to each of the units – areas where correctional staff are located and can observe the inmates. The observation areas are also known as “domes”. At the Penitentiary, the units and the observation areas (domes) are separated by metal bars. The bars permit correctional staff to observe the inmates and allow for controlled movement of inmates in and out of these areas. [ 8 ] The first video played as evidence (V1) was captured by camera NC-329.

This camera was located on the back wall of the “common room” – a kitchenette/seating area - adjacent to I Range. The camera was facing down range into the common room toward the observation area. While most walls in this area are solid, the end wall is comprised of metal bars. There is also a door at the far end of the range. This door provides controlled access to the Recreation Area. In VI, several inmates can be seen. Officer Jordan Feltham identified two of these inmates, namely, Azizullah Hadi and Mohamud Dirie. Mr. Hadi is wearing a white institutional shirt, with a blue sweater loose over his shoulders.

Mr. Dirie is wearing a blue institutional shirt, with a blue sweater loose over his head and shoulders. At approximately, 9:59:26 a.m., the door to the Recreation Area unexpectedly opens. Mr. Hadi immediately reacts by rushing toward the door. He then can be seen in V1 going through the door to the Recreation Area. As he does so, he appears to be reaching for something in his pocket. Within seconds, Mr. Dirie can be seen following Mr. Hadi through the door to the Recreation Area. As he does so, Mr. Dirie grabs a meal tray and places the tray and his sweater in the door so that it does not fully close.

At 9:59:39, Mr. Dirie enters the Recreation Area. A short time later, Officer Feltham can be seen rushing past in the observation area toward the Recreation Area. [ 9 ] The second and third videos played as evidence were captured by two different cameras in the Recreation Area – camera NC-336 (V2) and camera NC-337 (V3), respectively. These two cameras were located on the back wall of the Recreation Area facing down range toward the observation area. The end wall is comprised of metal bars. There are also two side doors near the observation area with one door leading to J Range and one door leading to I Range.

V2 begins at 9:57:37 a.m. At the beginning of the video, only one inmate is visible. Officer Feltham identified this inmate as Brandon Peeteetuce. Mr. Peeteetuce appears to be waiting for the side door to

J Range to open so that he can return to his cell. At 9:58:11, a passageway into the observation area through the metal bars temporarily opens and then closes. Mr. Peeteetuce appears confused by the passageway opening. He remains in the Recreation Area. At 9:59:32, Mr. Peeteetuce notices that someone is entering the Recreation Area from I Range. In V3, Mr. Hadi can be seen entering the Recreation Area at that same moment. In V2, Mr. Hadi can be seen walking directly toward Mr. Peeteetuce when he enters the Recreation Area. [ 10 ] At 9:59:37, Mr. Hadi can be seen striking Mr.

Peeteetuce in the upper portion of his left arm in a motion that would be consistent with a stabbing strike. Mr. Peeteetuce immediately runs away from Mr. Hadi and moves behind a table. At 9:59:39, Mr. Dirie can be seen entering the Recreation Area. At this point, Mr. Hadi appears to be holding a weapon in his right hand and is chasing after Mr. Peeteetuce. Mr. Dirie can be seen in the video joining Mr. Hadi in chasing after Mr. Peeteetuce. Mr. Dirie grabs Mr. Peeteetuce and pushes him to the ground near the observation area – at the front of the range near the metal bars. When Mr.

Peeteetuce is on the ground, both Mr. Dirie and Mr. Hadi repeatedly punch and kick him for about 10 seconds. During this time, Mr. Peeteetuce is lying on the floor with his hands over his head in a ball. His actions at this point are entirely defensive. [ 11 ] Officer Feltham is the first correctional staff to attend to the scene. The assault continues until he reaches the bars at 9:59:56. At that point, Mr. Dirie and Mr. Hadi stand and face the officer for a few seconds and then they return to I Range. At 10:03:06, a number of officers can be seen entering the Recreation Area. Mr.

Peeteetuce appears to be injured. Mr. Peeteetuce’s injuries are treated by one of the staff. At 10:05:20, a correctional worker can be seen placing a bandage on Mr. Peeteetuce’s left arm in the area which had been previously struck by Mr. Hadi. At 10:05:59, Mr. Peeteetuce can also be seen holding a bandage to his forehead. At 10:12:06, Mr. Peeteetuce is escorted from the Recreation Area by correctional staff. Evidence of Officer Jordan Feltham [ 12 ] At the time of the incident, Mr. Jordan Feltham was a correctional officer with Correction Services Canada.

He had been working at the Penitentiary for approximately 16 months. During that time, Officer Feltham worked in Unit 6 and Unit 7. The officer testified that he recognized all three of the inmates involved in the incident that occurred on October 7, 2021 based on his personal interactions with each of them. For example, Officer Feltham said that he had known Mr. Dirie for about two months prior to the incident and that he had “quite a few” personal interactions with him during that time. The officer explained that his interactions with Mr. Dirie occurred at his cell door or when the officer was escorting Mr.

Dirie from his unit to other areas in the Penitentiary. Officer Feltham believed his most recent interaction with Mr. Dirie prior to the incident was earlier in the morning on the day of the incident. The officer described Mr. Dirie as polite and respectful to staff. [ 13 ] Officer Feltham identified Mohamud Dirie in the courtroom. He testified that he recognized both Mohamud Dirie and Azizullah Hadi in all three of the videos. The officer also testified that he recognized the victim, Brandon Peeteetuce. [ 14 ] Officer Feltham testified that he was the first correctional staff on the scene.

He heard a radio transmission that there was a fight in the Recreation Room and as a result ran to this area. As he approached the Recreation Area, he observed two inmates delivering punches and kicks to another inmate who was lying on the floor. The officer run up to the metal bars in front of the Recreation Area. Officer Feltham said that he immediately recognized all three participants; the victim was Mr. Peeteetuce and the two aggressors were Mr. Hadi and Mr. Dirie. The officer described Mr. Hadi and Mr. Dirie as striking Mr.

Peeteetuce with “full force blows”. [ 15 ] Officer Feltham testified that as he approached the scene, he observed that Mr. Peeteetuce was lying on the ground and that he appeared to have fresh blood in the middle of his forehead and coming from his mouth. [ 16 ] In cross-examination, Officer Feltham clarified that the wrong door appeared to have been opened just prior to the incident. The officer speculated that correctional staff intended to open the door between the Recreation Area and J Range, but erroneously opened the door leading to I Range.

Officer Feltham testified that normally the inmates from I Range and J Range are not in the same area at the same time. The officer also acknowledged that the images from the videos played in court were too grainy to see detailed facial features. Evidence of Constable Chris Stroet [ 17 ] Constable Chris Stroet is a long-term member of the RCMP. He was asked to investigate the incident that occurred at the Penitentiary on October 7, 2021. The officer went to the Penitentiary and tried to interview both Mr. Peeteetuce and Mr. Dirie. They declined to participate in the officer’s investigation. Neither Mr.

Peeteetuce nor Mr. Dirie provided a statement to the Constable Stroet. Mr. Peeteetuce also declined to give access to his medical records. However, in January of 2022, Constable Stroet made an application for access to information from Correction Services of Canada. The application sought information relating to any medical services provided to Brandon Peeteetuce on or about October 7, 2021. The officer received a reply containing “encounter notes” indicating that

Mr. Peeteetuce had been seen by staff at the Penitentiary’s health centre. The encounter notes were accepted as evidence in these proceedings without objection [P-2]. Medical Records [ 18 ] The encounter notes indicate that, on October 8, 2021, Mr. Peeteetuce was seen by Nurse Alexandra Hordal. The notes indicate that Mr. Peeteetuce refused to go to the health centre on October 7, 2021. However, Mr. Peeteetuce was taken to the health centre the next day at 10:41 the next morning (October 8, 2021). When Mr.

Peeteetuce arrived at the health centre, Nurse Hordal’s notes indicated that he was stable and denied any pain. However, the nurse observed two injured areas. First, Nurse Hordal observed that Mr. Peeteetuce had two circular wounds on his left arm – one tiny circular wound on his bicep and a large circular wound on his upper arm - approximately 0.5 cm in diameter and deep enough to expose adipose tissue (fatty tissue under the skin). Second, Mr. Peeteetuce had a laceration in the middle of his forehead. The laceration was approximately 1.25 inches in length and was “barely gaping”. [ 19 ] Mr.

Peeteetuce was seen again by Nurse Hordal later that day. The encounter notes indicate that, at approximately 10:00 p.m. on October 8, 2021, Nurse Hordal went to Mr. Peeteetuce’s cell to assess whether Mr. Peeteetuce had any injuries as a result of a “use of force” incident that occurred near Mr. Peeteetuce’s range earlier that night. Apparently, a use of force had occurred involved OC spray (pepper spray) being pointed at certain inmates (but not sprayed). Nurse Hordal made no comments about either of the injuries she had observed earlier that day. [ 20 ] Mr.

Peeteetuce was seen again by health care staff on October 11, 2021. The encounter notes indicate that the staff observed “bruising” on the left arm but that the wounds appear to be healing properly. The laceration on Mr. Peeteetuce’s forehead was closed, with no signs of infection. Timeline of Events [ 21 ] The facts relevant to these proceedings occurred very quickly (in about 31 seconds). The following are my findings respecting the timeline of events: 9:57:37 Mr. Peeteetuce is waiting in the Recreation Area for his door to open. 9:59:26 The door from J Range to the Recreation Area opens in error. 9:59:32 Mr.

Hadi enters the Recreation Area through the unlocked door. 9:59:37 Mr. Hadi walks toward and strikes Mr. Peeteetuce with a stabbing motion. 9:59:38 Mr. Dirie places a food tray and his sweater to block the door from closing. 9:59:39 Mr. Dirie enters the recreation room. 9:59:44 Mr. Dirie grabs Mr. Peeteetuce and pushes him to the ground. 9:59:46 Mr. Dirie and Mr. Hadi begin kicking and punching Mr. Peeteetuce. 9:59:56 Officer Feltham arrives. 9:59:57 Mr. Dirie and Mr. Hadi step back from Mr. Peeteetuce. 10:00:00 Mr. Dirie and Mr.

Hadi return to J Range through door. 10:03:06 Multiple officers enter the Recreation Area and attend to Mr. Peeteetuce. ANALYSIS [ 22 ] There are four interrelated issues that I must address in these proceedings: The First Issue - Identification Was Mr. Dirie involved in the incident?

[ 23 ] Having considered the evidence in these proceedings, I am satisfied beyond a reasonable doubt that Mohamud Dirie was one of the individuals who assaulted Brandon Peeteetuce at the Saskatchewan Penitentiary on October 7, 2021. In coming to this conclusion, I am mindful of the necessary caution that must be taken when dealing with eyewitness identification. Reliability is always a concern. Many wrongful convictions have occurred through faulty eyewitness identification.

The dangers of wrongful conviction arising from faulty but persuasive eyewitness identification has been noted by our Court of Appeal in a number of recent cases, including R v Bigsky , 2006 SKCA 145 , 289 Sask R 179 as well as R v Clark , 2022 SKCA 36 , [2022] 6 WWR 659 (I reference the judgement of Justice Leurer, which was subsequently adopted by the Supreme Court of Canada). [ 24 ] In the present case, I am satisfied that Officer Feltham had personal knowledge of all three of the individuals involved in the assault that occurred on October 7, 2021, including Mr. Dirie.

Officer Feltham had worked at the Penitentiary for 16 months prior to the incident. He had been assigned to and worked closely with the inmates in Unit 7 for approximately two months prior to the incident. During that time, the officer had personal interactions with each of the individuals involved. It is improbable in the extreme that this officer, having personally worked with this population of inmates for two months, did not have the ability to distinguish one inmate from another. Granted, he only had seconds to observe and identify the inmates involved in the incident on October 7, 2021.

However, when a person works closely with a group of people for two months, that person’s ability to recognize distinguishing features of those people improves – it improves to the point that the person can recognize people from that group in just a few seconds. [ 25 ] I find that such was the case on October 7, 2021. Officer Feltham may only have had a few seconds to observe the inmates as he rushed to the barrier. However, I note that the inmates did not immediately run away as the officer approached.

Officer Feltham had a clear and close opportunity to observe the assault as it was occurring and to observe both of the assailants when they stood back from Mr. Peeteetuce before they returned to J Range. I am satisfied beyond a reasonable doubt that Officer Feltham was able to accurately observe and identify the inmates involved in the assault. In addition, the assault was captured on video camera, as were the activities that occurred in the areas surrounding the Recreation Area.

These recordings provided an opportunity for Officer Feltham to refresh his memory and significantly strengthens the quality of the identification. The Second Issue – Proof of Injuries Does the evidence demonstrate that Mr. Peeteetuce sustained injuries during the incident? [ 26 ] There is compelling and credible evidence that Brandon Peeteetuce sustained two different injuries as a result of the assault that occurred on October 7, 2021. These two injuries are as follow:

(1) Stabbing wound(

s) to Mr. Peeteetuce’s left arm : The encounter notes [P-2] indicated that Nurse Hordal observed two circular wounds on Mr. Peeteetuce’s left arm on October 8, 2021. One wound was a tiny circular wound on the left bicep. The other wound was a large circular wound on the upper arm – approximately 0.5 cm in diameter and deep enough to expose adipose tissue (body fat). Nurse Hordal’s observation was made the morning after the incident. The video evidence recorded by camera NC-336 [V2 of P-1] shows Mr.

Peeteetuce walking in the Recreation Area just prior to the assault without any apparent injury to any part of his body. That same video evidence shows Mr. Hadi striking Mr. Peeteetuce in the same area of his left arm in a stabbing motion. Based on this evidence, the singular and inescapable conclusion is that Mr. Hadi caused the large circular wound observed by Nurse Hordal when Mr. Hadi struck Mr. Peeteetuce with some form of stabbing weapon. Based on the video evidence, I find that this injury occurred at 9:57:37 on October 7, 2021.

Finally, based on the encounter notes, I find that the circular wound was healing properly, but that bruising was still visible on the left arm four days later on October 11, 2021.

(2) A laceration to Mr. Peeteetuce’s forehead : The encounter notes [P-2] indicated that Nurse Hordal observed a laceration in the middle of Mr. Peeteetuce’s forehead. The laceration was approximately 1.25 inches in length and barely gapping when observed by Nurse Hordal. This observation was made the day after the incident. Again, the video evidence recorded by camera NC-336 [V2 of P-1] shows Mr. Peeteetuce walking in the Recreation Area just prior to the assault without any apparent injury to any part of his body. Later, the video evidence shows both Mr. Dirie and Mr. Hadi repeatedly striking and kicking Mr.

Peeteetuce. At the time, Mr. Peeteetuce is lying on the floor and trying to protect his head. Based on this evidence, the singular and inescapable conclusion is that the laceration to Mr. Peeteetuce’s forehead occurred when he was being struck by Mr. Dirie and Mr. Hadi. Based on the evidence, I find that the laceration to Mr. Peeteetuce’s forehead occurred between 9:59:46 and 9:59:57 on October 7, 2021. Finally, based on the encounter notes, I find that the laceration was superficial and that it was closed and healing properly four days later. The Third Issue – Criminal Liability for the Injuries Is Mr.

Dirie criminally responsible for the injuries sustained by Mr. Peeteeuce?

[27] A review of the evidence indicates that there were two components to the assault on Mr. Peeteetuce. The first componentoccurred when he was stabbed by Mr. Hati. The second components occurred when Mr. Dirie grabbed Mr. Peeteetuce and then he andMr. Hati repeatedly punched and kicked him when he was lying on the ground. [28] Mr. Dirie did not stab Mr. Peeteetuce. The video evidence satisfies me that Mr. Dirie had not yet entered the Recreation Areawhen the stabbing occurred. The question I must decide is whether Mr. Dirie aided in the commission of the stabbing.

To be liable as anaider to an offence, the Crown must prove two things; first, that Mr. Dirie did something – that he took some active step – either by wordor action that assisted Mr. Hadi in stabbing Mr. Peeteetuce (the “actus reus”); and, second, that Mr. Dirie knew that Mr. Hadi intended toassault Mr. Peeteetuce and that he intended to assist Mr. Hadi in committing that assault (the “mens rea”). See: R v Briscoe, 2010 SCC13 at paras 14 to 18, [2010] 1 SCR 411 [Briscoe].

Mere presence at the scene of an offence and acquiescence to the commission of thatoffence does not support a conviction for aiding and abetting as a party. See: R v Dunlop, (SCC), [1979] 2 SCR 881 at896. The Crown must demonstrate that Mr. Dirie both knew that Mr. Hadi intended to assault Mr. Peeteetuce (although the Crown neednot prove that he knew precisely how it would happen) and that his actions were for the purpose of assisting Mr.

Hadi in committingsome form of an assault (punch, kick or stab). [29] In the present case, the Crown’s evidence does not satisfy me – certainly not beyond a reasonable doubt - that Mr. Dirie knewthat Mr. Hadi intended to assault Mr. Peeteetuce (by stabbing him or otherwise). The video evidence shows that, as soon as the door tothe Recreation Area opened, Mr. Hadi ran to that door and immediately entered the Recreation Area. While the evidence shows that Mr.Dirie followed Mr. Hadi into the Recreation area through that same door, Mr. Dirie’s actions were slower and more cautious.

Forexample, rather than immediately entering the Recreation Area, he stopped and blocked the door from closing. As a result, Mr. Dirieentered the Recreation Area a few seconds after Mr. Hadi. The stabbing occurred about the time Mr. Dirie was blocking the door withthe food tray and his sweater. Blocking the door assisted Mr. Hadi because it provided an avenue of escape. [30] However, I only have circumstantial evidence from which I can infer Mr. Dirie’s state of mind. Having reviewed thisevidence, I am not satisfied that Mr. Dirie’s actions (following Mr.

Hadi into the Recreation Area and then blocking the door) leadsinescapably to the conclusion that these actions were coordinated or that Mr. Dirie knew that Mr. Hadi intended to assault Mr. Peeteetucewhen he entered the Recreation Room. For example, I do not have any evidence that Mr. Dire knew that Mr. Hadi had a weapon. Prior toMr. Hadi striking Mr. Peeteetuce, it was not obvious from the video evidence that Mr. Hadi was holding anything in his hand. Withoutproof that Mr. Dirie had prior knowledge of Mr. Hadi’s intention to assault Mr. Peeteetuce, Mr. Dirie is not criminally liable for thestabbing wounds.

It is not even clear from the evidence that Mr. Dirie knew that Mr. Peeteetuce had been stabbed when he beganassaulting him a few seconds later. [31] However, the same cannot be said for the laceration on Mr. Peeteetuce’s forehead. The singular and overwhelmingconclusion to be drawn from the evidence is that Mr. Dirie intended to join Mr. Hadi in assaulting Mr. Peeteetuce once he got in theroom. While I do not know who landed the blow that caused the laceration to Mr. Peeteetuce’s forehead, for purpose of criminalliability, it does not matter.

There is no distinction between the perpetrator and a secondary party for the purpose of criminal liability.See: Briscoe at para. 13. At this point in the assault, both Mr. Dirie and Mr. Hadi repeatedly punched and kicked Mr. Peeteetuce. Thevideo evidence corroborates Officer Feltham’s description that they were both striking Mr. Peeteetuce with “full force blows”. I find thatMr. Dirie is criminally responsible for the laceration wound that Mr. Peeteetuce received to his forehead. The Fourth Issue – Classification of the Injury? How should the injury for which Mr.

Dirie is responsible be classified? [32] The Criminal Code establishes three tiers of assault offences: common assault, assault causing bodily harm, and aggravatedassault.

In R v Peroz, 2019 SKQB 298 at paras 85 and 86, Justice Danyliuk summarized both the basic elements of the offence of acommon assault, as well as the additional elements necessary for the Crown to provide an aggravated assault: [85] The authorities disclose that the elements comprising the crime of assault, each of which the Crown must prove beyond areasonable doubt, are as follows: ▪ the identity of the accused; ▪ the date, time and place set out in the indictment;

▪ the accused intentionally applied force to the complainant; ▪ the complainant did not consent to the force that the accused intentionally applied; and ▪ the accused knew the complainant did not consent to the force that the accused intentionally applied. [86] In the case of aggravated assault, there are three additional elements: ▪ the assault wounded, maimed or disfigured the complainant, or endangered the life of the complainant; ▪ the accused’s conduct caused the complainant to be wounded, maimed or disfigured, or endangered the complainant’s life; and ▪ a reasonable person would have realized that the accused’s conduct would subject the complainant to the risk of bodily harm. [ 33 ] I have no evidence that Mr.

Peeteetuce was maimed or disfigured or that his life was endangered by the laceration to his forehead. Rather, the Crown’s theory is that Mr. Dirie committed an aggravated assault because he “wounded” Mr. Peeteetuce with the laceration to his forehead. The British Columbia Court of Appeal in R v Pootlass , 2019 BCCA 96 at para 113 , 373 CCC (3d) 433 provided the following definition of wound: [113] To briefly conclude, a wound, as the word is used in s. 268(1) of the Code , is a break in the continuity of the whole skin that constitutes serious bodily harm.

Serious bodily harm is any hurt or injury that interferes in a substantial way with the integrity, health or well-being of the complainant. This is a finding of fact, upon the application of the proper legal test. [ 34 ] This definition was adopted by my brother Judge Hinds in R v D.M.R. , 2022 SKPC 42 and by myself in R v Kahmahkotayo , 2023 SKPC 10 . It should be noted that this definition does not require the complainant to sustain the kind of injuries that persist through time.

However, the injuries must be serious and must interfere in a substantial way with the integrity, health, and well-being of the complainant. [ 35 ] The evidence in these proceedings does not satisfy me that the wound to Mr. Peeteetuce’s forehead was serious or that it inferred in a substantial way in his integrity, health or well-being. While the laceration was observed to be 1.25 inches in length, it was described as “barely gaping” the next day (superficial) and it was unremarkable four days after it occurred. [ 36 ] While I am not satisfied that the laceration to Mr.

Peeteetuce’s forehead was a “wound” within the meaning of s. 268(1) of the Criminal Code , I am satisfied that it qualifies as “bodily harm” within the meaning of s. 267 (b). I am also satisfied that assault causing bodily harm is an included offence for this form of aggravated assault. See: R v Androsoff , 2023 SKCA 42 at para 42 . CONCLUSION [ 37 ] Having considered the evidence, I find that Mr. Dirie intentionally applied force to Mr. Peeteetuce on October 7, 2021 at the Penitentiary by kicking and punching him. Mr. Dirie was also a party to Mr. Hadi’s actions in kicking and punching Mr. Peeteetuce.

It is clear from the evidence that Mr. Peeteetuce did not consent to the application of the force by either assailant. Finally, I find that the force applied by Mr. Dire and Mr. Hadi caused bodily harm to Mr. Peeteetuce. [ 38 ] For these reasons, I find Mr. Dirie not guilty of aggravated assault, but guilty of assault causing bodily harm contrary to s. 267 (

b) of the Criminal Code . Dated this 26 th day of June, 2023, at the City of Prince Albert, in the Province of Saskatchewan. __________________________

S.D. SCHIEFNER, J