Her Majesty the Queen - v. -, 2012 SKPC 10

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 010 Date: March 5, 2012 Information: 44660923 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Samuel Browne Appearing: Paul Goldstein For the Crown George Combe For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that, on or about June 19, 2011 at or near Saskatoon, did commit an assault to the complainant using as a weapon, a toy guitar, contrary to s. 267 (

a) of the Criminal Code .

[ 2 ] The accused had submitted initially the possibility of an alibi. However, having given careful consideration to all of the evidence, the Court has concluded that it is sufficient to establish the accused had been in contact with the complainant at the time as alleged. Despite that, the following issue arose for determination: Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had engaged in assaultive aggressive conduct as alleged? Chantel Aceto - The Complainant [ 3 ] The parties had been in a relationship for roughly five years.

Out of that they have a daughter, Ava, who is approaching her third birthday. They are now separated as a result of this alleged matter. [ 4 ] Earlier in the day at the time, the complainant had been at her father’s place to celebrate Father’s Day. She arrived home and asked the accused if he had fed Ava. At the time, the accused was in the bedroom, studying. When he said he had not, she replied he should pay more attention to Ava’s needs. That comment angered him, so he pushed her with two hands on her shoulders.

He said words like “why are you always blaming me?” [ 5 ] At that point, the complainant attempted to leave the bedroom. He blocked her from going, got in her face and had his hands out. [ 6 ] When she got free, the complainant said she would call the police and started toward the phone, downstairs. However, he ran past her and unplugged it saying that she was not going to call the police. [ 7 ] The complainant went outside with the intention of going to the neighbour’s to use their phone. The accused followed carrying a toy plastic guitar that had been on the coffee table and struck her once with it.

As well, he had pushed her with his hands so that she ended up on the floor, and kicked her while she was down. She had kicked him twice as well in order to defend herself from that aggression. She suffered no injury.

In due course the complainant called the police on her cell phone and he departed from the scene in his motor vehicle. [ 8 ] In cross-examination the complainant denied that she had attended a bachelorette party or went to Jax night club, returning home drunk at 3:00 or 4:00 a.m. [ 9 ] She also denied being angry with the accused for failing to feed their daughter so that she struck him in the back of the head. Regardless, they had been separated for a couple of months before this alleged matter but could not recall the date of their separation. He had indeed abused her in the manner in which she indicated.

EVIDENCE FOR THE DEFENCE The Accused [ 10 ] Samuel Browne indicated that the only thing truthful in the complainant’s testimony was this alleged matter had occurred on Father’s Day.

[ 11 ] Prior to the complainant going out that night, he was aware that she intended to attend a bachelorette party and go drinking at Jax night club. He stayed home and cared for Ava. [ 12 ] At roughly 3:00 a.m. he was awakened by the complainant knocking loudly on the front door. When he answered, the complainant appeared to be drunk. She was mad because someone had stepped on her purse at the bar. She was speaking loudly so he told her to lower her voice so as not to disturb Ava where she was sleeping in a nearby bedroom. He heard Ava crying and the complainant said he was a stupid father.

He threatened to leave her and the complainant said she would make things worse for him. She took off her shoe and threw it at him, hitting him in the back. As a result, at 4:00 or 4:15 a.m. he drove away from the scene and went to his sister’s where he stayed for a couple of days. Therefore he did not see the complainant until two days later when he went to pick up his property. [ 13 ] In any event, as noted, it appeared the accused might be alluding to an alibi which had not been disclosed to by the Defence.

However, the Crown opted to proceed with cross-examination at that time rather than requesting an adjournment which could have been appropriate in order to consider its options. [ 14 ] In cross-examination the accused confirmed that he had been residing with his sister on the date when this matter had allegedly occurred. However, he had been home alone that day with his sister gone to work at Walmart from 8:00 a.m. to 4:00 p.m.

He estimated she would have been home that day at 4:30 p.m., and he was home alone until then. [ 15 ] He was hoping that they might reconcile because they had been together for four or five years.

They had been sleeping together at the time and he had his things there, but wanted to let matters cool off for a couple of weeks before there was any further contact. [ 16 ] He agreed also to being involved in Anger Management for domestic violence classes in the past regarding his relationship with her. [ 17 ] In any event, we were required to adjourn these proceedings because the accused wanted to call his sister, Audrey Browne, as a witness and she had not been available on the first date.

In the meantime a transcript was ordered and cross-examination continued. [ 18 ] When it did, the accused confirmed that he had met the complainant at a bar to discuss reconciliation, but did not believe that had occurred in the interim during the trial continuation, but rather prior to it. At that time, the complainant had said she wanted to see a family counsellor for anger issues. He agreed as well that sometimes he got angry with the complainant. Audrey Browne [ 19 ] Ms. Browne confirmed that on June 19, 2011 at 4:30 a.m., the accused had come ringing on her apartment building buzzer.

He looked tired and brought his school bags. His arrival was a surprise to her. She was also familiar with the complainant and her niece Ava. She believed that the parties were having problems as a couple. [ 20 ] At 8:00 a.m. she left for work at Walmart, where her shift started at 9:00 a.m. She drove to work. Her shift was over at 3:30 p.m., arriving home at roughly 4:00 p.m. That was Father’s Day, but she did not contact her father because he was living in Prince Albert and they were not particularly close.

In the meantime, she had called the accused at roughly 2:00 p.m. to confirm he would be home because he had the only set of keys for her place. He had answered that call, and was at home studying when she arrived. He still appeared to be tired and stressed. [ 21 ] In cross-examination Ms. Browne advised that she was not initially aware that the police were looking for the accused although she knew the parties were having problems. As well, she insisted that it had been Father’s Day, even though there was nothing

to make it different from the various other Sundays she had worked at Walmart in that general time frame. She believed that thecomplainant had called her to babysit so that she could go out but Ms. Browne was working the next day and could not assist.

She hadnot provided any written employment record to attempt confirmation of the date in issue. [22] She also indicated in her testimony that the accused had called her in November to say that she should contact his lawyer tomeet with counsel but could not recall the exact date of that call. [23] In the course of consulting with Defence counsel she had prepared a statement which was produced by Defence counselduring the trial. The privilege of that document was waived by the Defence after the Court raised concerns about its status. It wasentered as a Crown exhibit herein.

The document has her description of what had allegedly occurred. However it contains no date as towhen it was prepared. Regardless, she conceded she did not know what had happened at the time at the scene. As well, although he hadanswered the phone at 2:00 p.m., she did not know what he was doing the rest of the time. [24] In rebuttal evidence she confirmed being asked to babysit on June 8, 2011, when the complainant had called. Thecomplainant was intending to go out to a nightclub she believed was named “Scratches”.

ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the accused had engaged in assaultiveaggressive conduct as alleged? [25]

Section 267(

a) of the Criminal Code provides as follows: 267. Every one who, in committing an assault,

a) carries, uses or threatens to use a weapon or an imitation thereof, or . . . is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. [26] The Crown bears the onus of proving that the accused had committed an assault against the complainant which may or maynot have involved a toy guitar. The accused could still be guilty of a common assault as an included offence, except that here he hasdenied being the aggressor whatsoever, with or without the toy guitar.

Rather, he alleges the complainant had assaulted him. [27] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubtwith credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: 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.

[ 28 ] The determination of credibility does not involve the Court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises a reasonable doubt. Therefore, credibility of the material witnesses needs to be considered, in that context.

CONCLUSION [ 29 ] There is nothing in the analysis of the evidence of the parties which would cause one to conclude that the Court is dealing with somewhat similar descriptions of the unfolding of the narrative at the material time. Rather, the differences are substantial and do not lend themselves to subtle analysis. Likewise, the evidence of the accused’s sister, Audrey Browne, was not of assistance because she was not at the scene as the circumstances allegedly unfolded. [ 30 ] The accused was very much the aggressor as described in the testimony of the complainant.

Initially, in a state of anger, he had pushed her with his two hands on her shoulders. When she tried to leave the room he blocked her from leaving, got in her face and held out his hands. Shortly thereafter he followed, carrying a toy plastic guitar and struck her once. He pushed her to the floor and applied kicks to which she kicked him back in order to defend herself. There was no suggestion that she was engaging in any nature of a consent fight.

She did not vary in her description to any significant extent in cross-examination. [ 31 ] The accused claims that she had been out to the bar at a bachelorette party. She came home drunk and in a poor mood. She called him a stupid father, he threatened to leave and she threatened to make things worse for him. She took off her shoe and threw it at his back, hitting him, so he went to his sister’s place. Once again he stood up reasonably well in cross-examination.

To his credit he admitted he had been in Domestic Violence Court with allegations of this nature in the past with the complainant but there were no more particulars placed on record. Had he falsely denied that history it could have undermined his credibility to a considerable extent. [ 32 ] In any event, applying the principles in McKenzie , supra, the Court has concluded that it does not know whom to believe. In those circumstances, the accused must receive the benefit of the doubt.

The evidence is not sufficiently credible for the Crown to prove beyond a reasonable doubt that he was the aggressor rather than the victim. He is not guilty of assault with a weapon, contrary to s. 267 (

a) of the Criminal Code , also the included offence of common assault contrary to s. 266 of the Criminal Code . _________________________ P.S. Kolenick, J