2012 QCCQ 15919, 2012 QCCQ 15919

R. c. Icebound-Poucachiche 2012 QCCQ 15919 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF Waswanipi "Criminal and Penal Division" No: 640-01-019444-109 640-01-019445-106 DATE: March 13, 2012 ______________________________________________________________________ BY THE HONOURABLE LUCILLE CHABOT J.C.Q. ______________________________________________________________________ THE QUEEN COMPLAINANT v.

CLARENCE ICEBOUND-POUCACHICHE ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Clarence Icebound-Poucachiche faces three charges in two different files: assault with a weapon (267a) Cr. C), assault causing bodily harm (267

b) Cr. C), both committed on V. B. and mischief (430 (1)(a)(4)(

a) Cr. C). [ 2 ] These counts are related to a single event that occurred on December 31, 2010. [ 3 ] The Court heard the testimonies of V. B. and Mason Cooper for the prosecution and the accused testified in his own defence. The evidence of the prosecution: V. B.: [ 4 ] B. and Cooper, along with many other young people, were partying at Arthur Kitchen's place. Michel Icebound-Poucachiche, the accused's young brother, was one of them. During the night, an argument broke out between Cooper and Michel Icebound- Poucachiche.

The latter left to get Clarence and returned with him and two other people, Justin Saganash and Jamie Ottereyes. B., Cooper and the two Icebound-Poucachiches were in the porch. B. was standing between Cooper and the accused trying to calm them down. He was facing Cooper. As he was about to turn his head toward the accused, he saw Clarence swinging an object at him, which he believes was a stick. He adds that, just before being hit, he heard the accused saying: "I'll beat you up". He was struck on the head. His glasses broke and he fell down. He got up and ran to a neighbour's house.

He was brought to the local clinic and soon after he was transferred to Chibougamau Hospital from where he was again transferred to Montréal General Hospital. He was hospitalized for a period of one month. He sustained a fracture between both eyes. Pieces of glass had to be removed from his eyes. To this day, he still experiences blurry vision at times. The victim said that the two other people who accompanied the accused were standing outside of the porch. They did not take

part in the incident. [ 5 ] The victim says that the first argument between Mason Cooper and Michel Icebound-Poucachiche was linked to the fact that they were both under the influence of alcohol. B. had consumed Jack Daniel's but adds that he was not drunk. He has a good recollection of the events that took place that night. [ 6 ] In cross-examination, he is able to provide detailed answers to questions asked by the defence. He specifies that the hit came from the right side where the accused was standing. He saw him out of the corner of his eye.

He cannot provide a detailed description of the object because it happened very quickly and he was unable to see afterwards. He is confronted with the statement that he gave five days after being hit while he was still in Montréal General Hospital. It is written that he was hit with something he didn't see. He states that he remembers having seen an object swung at him by the accused and being hit by it. MASON COOPER: [ 7 ] Mr Cooper gives substantially the same version of the events. He admits that prior to the incident involving Clarence, he had an argument with Michel. The latter angrily stormed off.

He came back with his big brother and two other people. [ 8 ] Four were standing in the porch: the two Icebound-Poucachiches, the victim and himself. He says that V. was in the middle.

He saw that Clarence had something in his hand resembling a piece of a 2x4. The event unfolded very quickly. The accused swung the object and hit V. who fell down. Right after that, the accused, his young brother and the two other people fled. The entire incident lasted about two minutes. [ 9 ] The witness knows both the accused and his brother. He adds that at that time, Michel was shorter than Clarence. He was able then, and is still able today, to distinguish Clarence from Michel. THE EVIDENCE OF THE DEFENCE: [ 10 ] Only the accused testified for the defence.

On December 31, he was sleeping when his young brother came home crying, saying that some people wanted to beat him up. Michel was intoxicated. The accused told his brother not to mind them. He says that Michel ran back to Arthur Kitchen's place. Not wanting any trouble, their mother asked the accused to go find his brother and bring him back home. He adds that he ran out to get Michel. [ 11 ] When the accused arrived at Arthur's place ten to fifteen minutes later, Michel was outside, in front of the house.

Jamie Ottereyes and Justin Saganash, whom he met on the street while on his way to Arthur's place, accompanied the accused. Upon his arrival, at least ten people were there. He begins by saying that Michel was in front of the porch and subsequently says that Michel was in the porch. He saw his brother hitting V. with a closed fist. No weapon was used. He adds that he was not far from Michel, but not really beside him. He was not in the porch himself. In the seconds before V. was hit, he says that Michel was arguing with V. and then punched him. To a subsequent question, he says that Michel was arguing with Mason.

He says that he is wrongly accused. [ 12 ] In cross-examination, he declares that when he found him, his brother and other people were already fighting. A little while later, he says that he didn't really see them fighting, but arguing. He adds that he told Michel: "Leave them alone. Let's go back home." But Michel didn't listen to him. [ 13 ] It is only in cross-examination that the accused mentions that a fourth person, a young man called Moose, was also in the porch.

He adds that he saw the whole event through the porch door, a few feet away. [ 14 ] Contrary to what he had said in examination-in-chief, he mentions that when he left his place to try to find his brother he walked, he did not run. The urgency of the situation, knowing that his brother could be getting in a fight, was no longer apparent in cross- examination. He insists that he walked to Arthur Kitchen's place. [ 15 ] Right after V. was hit, he fled and hid along with his brother, Jamie and Justin because at least ten people were running after them. DECISION: [ 16 ] The accused has nothing to prove.

The presumption of innocence protects the accused against a finding of guilt until the prosecution fulfills its burden by proving the essential elements of the offence alleged to a standard of proof beyond a reasonable doubt. If the evidence leaves a reasonable doubt, the accused must be acquitted. [ 17 ] This is a case where the Court faces contradictory versions and has to apply the principle established by the Supreme Court in R. c. W. (D) . [1] [ 18 ] If the Court believes the version of the accused, he must be acquitted.

If the Court does not believe the version of the accused, but is left with a reasonable doubt by it, he must be acquitted. If the Court is not left with a reasonable doubt after having assessed the version of the accused, it must weigh all the evidence to determine if the prosecution has fulfilled its burden of evidence. [ 19 ] The Court may believe all, none or some of a witness' testimony.

The version of the accused has to be assessed in the context of the whole evidence. [ 20 ] The version of the facts related by Clarence Icebound-Poucachiche contains some discrepancies and some illogical elements. [ 21 ] Why did his young brother come back home crying, waking him up? There is no real answer in the version given by the accused. Did Michel only want to inform him that people wanted to beat him up? He didn't ask for help? He simply decided to run back to Arthur's place knowingly risking to be beaten?

According to the testimony of the accused, not only did he go back, he ran back to the Kitchen's place as if he was in a hurry to be beaten. [ 22 ] In examination-in-chief, the accused clearly stated that his young brother ran back and specified that he was heading to Arthur Kitchen's place. He also said that his mother did not want any trouble because of other things that had happened before at Kitchen's place. It seems that she knew about this place and, according to the accused's testimony, asked him to go and bring back his little brother. The accused added that he ran out to get him.

However, in cross-examination, he said that he was walking. Why try to locate him if he already knew that his brother was at Arthur Kitchen's place? Why walk when knowing that people wanted to beat-up his little brother? At first he said that Michel was already in front of the Kitchen's place when he arrived, but later he said that Michel was in the porch when he arrived. [ 23 ] He states that he was not far from Michel, but not beside him.

In cross-examination, he describes a distance of 10 to 12 feet between them, demonstrating this distance using two points in the courtroom. [ 24 ] At one moment, he says that before the blow, he saw Michel and Mason arguing. Later, he says that it was V. who was arguing with Michel. In cross-examination, he began by saying that when he arrived they were already fighting, and then he changed his story saying again that Mason and Michel were arguing. [ 25 ] Only in cross-examination does he add the presence of a fourth man, called Moose, in the porch.

[ 26 ] After V. B. was struck, the accused fled; not only him and his young brother, but also the two people he met on the street. It is strange that two people, passers-by, decided to flee with them even if they were not involved in the incident. [ 27 ] The answers given by the accused changed from one question to the other.

At some point, he was clearly hesitant before answering simple questions. [ 28 ] The version he gave is neither trustworthy nor reliable. [ 29 ] The Court does not believe his version nor is left with a reasonable doubt. [ 30 ] Did the prosecution fulfill its burden of evidence by proving the essential elements of the offence beyond any reasonable doubt? [ 31 ] The testimony of Mason Cooper was straightforward: no hesitation, no contradiction. He clearly saw what happened. He had a good recollection of the event and was able to provide details. He gave a candid description of what he saw and heard that night.

As he knows both Michel and Clarence Icebound-Poucachiche, he was able to affirm that it was the accused who hit V. with a piece of wood. [ 32 ] The two witnesses heard for the prosecution gave coherent versions and there were no discrepancies between their testimonies. Both were able to testify in a detailed manner.

Even if they had consumed alcohol at the time of the event, they were not in a state of intoxication where they would have been unable to perceive the events. [ 33 ] B. testified without showing any grudge toward the accused or his brother. [ 34 ] The Court is of the opinion that the prosecution fulfilled its burden of evidence on both counts of assault.

Under the Kineaple principle, a stay of proceedings is entered on the first count and a conviction on the second count, which is: assault causing bodily harm. [ 35 ] The Court also declares the accused guilty of mischief. __________________________________ LUCILLE CHABOT, J.C.Q. Me Marc Roy Prosecutor Me Julie Abudarham Bolduc Lawyer for the defence Date of hearing: December 13, 2011