Her Majesty the Queen - v. -, 2012 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 020 Date: January 30, 2012 Information: 295514 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - E. D. Appearing: M. Crumley For the Crown R.

Grimsrud For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. JUDGMENT K. P. BAZIN , J [ 1 ] The allegation in this case is that the accused, E. D., assaulted G. B., by kicking G. B. in the testicles thereby rupturing one of G. B.’s testicles requiring surgery and the insertion of a prosthesis.

The incident takes place when all parties were in Grade 7 and attending a year-end overnight camp at Kenosee Park. The four boys who testified were approximately 14 years old at the time. The

boys testified to various events that took place over the two day excursion. [ 2 ] Some of the alleged inconsistencies suggested by the defence would be inconsistencies, if one accepts the defence position that there is only one event where the accused is alleged to have assaulted the victim. It is my finding that when the witnesses are talking about E. D. hitting or what might be described as bullying the victim, they are not talking about one day, and in particular, they are not talking about the period when the victim alleges when he was kicked in the testicles by the accused.

I find that a number of events took place over a two day period. [ 3 ] If one were to believe that the alleged kick by the accused occurred at the same time that the testimony about the accused throwing money at, hitting the victim with a broom, and punching him in the leg, all occurred as the boys were all getting ready to leave for home on the bus, then none of it would make sense. [ 4 ] I will firstly deal with the issue of playing soccer over the weekend, and whether or not the accused kicked a soccer ball at G. B., hitting him in the groin and/or testicles.

This issue is put forward by the defence as a possible explanation for the injury that G. B. sustained. [ 5 ] There is inconsistent testimony as to who was playing soccer and when. G. B. said that he did not play soccer. The accused, E. D. indicated that he was playing soccer against G. B., on the first day of the camp, the game lasting about one and a half hours, and during the game he did kick the soccer ball into G. B.’s groin. E. D. testified that G. B. went down, and E. D. said sorry to him. [ 6 ] A. G. testified he saw G. B., E. D., and H.

K. playing soccer, but he described it as only three boys playing soccer outside their cabin. He testified that he could not remember what day it was on. He initially thought it was on the second day but later testified that he did not actually remember. He did testify that he saw E. D. kick a ball into G. B.’s groin, but testified that this had no effect on G. B. and G. B. did not complain about any injuries as a result. H. K. said he was not at the soccer game. [ 7 ] I find that G.

B. was playing soccer, or at least kicking a soccer ball around, on the first day and was struck by a soccer ball in the groin area, kicked by E. D.. I also find that it did not cause any injury to G. B. E. D., although stating that G. B. went down, did not say there was any injury to G. B. on the first day, or any other day. G. B. testified, as all the boys testified, that they participated in various events over the remainder of the day and over the next day. As such, it is of little consequence as nothing comes out of it as far as G. B. is concerned.

There is no indication he was injured and he carried on his activities. There is no evidence that G. B. was not well or anything was out of the ordinary after being hit by the soccer ball. [ 8 ] I do not find that despite G. B. saying he did not play soccer as affecting his credibility. He first stated that he had not played soccer on the second day, in answering a question as to that day. He then later said he could not recall playing soccer at all on the weekend. From the testimony of A. G., A.

G. describes an event that is more akin to boys just kicking a soccer ball around, as he says there are only three people playing soccer, and G. B. may not have thought of this as playing soccer in the formal sense. This may also be why H. K. says he was not playing soccer, when A. G. said he was, as he may not have played in a formal game, and may have been involved with kicking a soccer ball around. [ 9 ] On the trip on the school bus out to Kenosee Park, G. B. testified that E. D. hit him and gave him a “charlie horse”. G. B. asked E. D. to stop hitting him, but he did not. G. B. then indicated that he told E.

D. to stop a second time and that E. D. did stop hitting him. [ 10 ] H. K. testified about an event he says occurred when he, A. G., and G. B. were in the cabin. He testified that he and A. G. were sitting playing cards, G. B. was on his bed. He testified that he saw the accused come straight into the cabin and hit G. B. with his hand. He stated E. D. was not in the cabin at first when they were playing cards, but comes straight in and goes directly to G. B. who was sitting on his bed and hits him in the upper

section of the leg, on the outside. H. K. testified that it looked like E. D. was actually trying to hit G. B.’s testicles but missed. H. K. reacts to this by telling E. D. to stop, which E. D. does. H. K. testified that E. D. had hurt G. B. From H. K. this was an unprovoked attack and he does not recall E. D. saying anything to G. B. before he hit him. [ 11 ] E. D., in his testimony, talks about a similar incident, which I have determined he is referring to the same incident as testified to by H. K. E. D. testified that G. B. hit him first with nothing being said, and then he retaliated by hitting G. B. back. E.

D. testified that G. B. hit him to give him “a charlie horse”, and he hit G. B. back to give him a “charlie horse”. The witnesses testified that a charlie horse is a hard hit to a part of the body, generally a leg or an arm. [ 12 ] H. K. testified that he believed this event happened on the first day although he was not a hundred percent sure. My understanding of E. D.’s testimony that this event took place on the first day, after the soccer game. The incident described by H. K. in the cabin, is similar to the incident as described by G. B. on the bus, being that for no reason E. D. was hitting G. B. [ 13 ] G.

B., however, in his testimony does not refer to being hit by E. D. at this time. However, when asked if he could recall any other physical altercations with E. D., other than the kick to the testicles on the second day at the cabin, he said he “could not remember”. [ 14 ] I find that the event as described by H. K. took place on the first day, and I believe the evidence of H. K. I do not accept the testimony of E. D. in relation to this incident. Throughout the testimony of the witnesses, no one describes G. B. as being an aggressor to anyone and in particular, not to E.

D. [ 15 ] There is also testimony of another altercation between E. D. and G. B.. A. G. testified that there was an incident where E. D.

was “whipping” money at G. B., and was “whipping” G. B. with a corn broom. He testified that G. B.’s reaction to this was that he wascrying. He testified that all four boys were in the cabin when this happened. He testified he can’t remember the day when this actuallyhappened. [16] On the second day, the boys had activities in the morning and early afternoon prior to boarding on the bus and returning backto Estevan. The last event appears to be mini golfing. G.

B. testified that he went mini golfing, and prior to mini golfing, the boys hadpacked their gear so that when they were done mini golfing, or another activity, they would go straight to gather their gear and thenboard the bus. This testimony was consistent amongst all the witnesses that they had packed their cabins and after the mini golfingwould pick it up and go directly to the bus. G. B. testified that he went back to his cabin to pick up his gear and go on the bus. He statedthat E. D. was coming out of the cabin near the same time that he was entering the cabin. G. B. described that E.

D. was mainly in thedoorway as G. B. was just about to enter into the cabin. He testified that E. D. simply kicked him in the testicles, and carried on to thebus. He testified nothing was said to him by E. D. G. B. testified he could not remember whether he would have said anything to E.D.,but stated that if he would have, it would have been something nice. [17] G. B. testified that the other two boys were in the cabin, and E. D. testified that the other two boys had just left. G. B.testified that after being kicked he went and sat down on the bed for a short period and as the bus was leaving went onto the bus.

Hetestified that he felt tired, scared and injured right after the kick. He could not remember much after getting kicked. He testified he washaving trouble remembering that day. [18] In the circumstances I find that G. B. may be mistaken as to whether H. K. And A. G. were actually in the cabin. E. D.testified that H. K. And A. G. had left ahead of him from the cabin. G. B. was not in the cabin when he was kicked, and was comingback from mini golfing, so he would not have been able to see whether A. G. and H.

K. were actually in the cabin before he was kicked. [19] As stated earlier, the other two boys that had slept in the cabin, H. K. And A. G., do not describe the incident of G. B. beingkicked as they are going to the bus. I find that this is because whether or not they were in the cabin or had left the cabin, they weresimply not in a position to see anything. With E. D. coming out through the door it is unlikely they would see him kick G. B. who wasoutside the door. G. B. described it as one kick and that was it, this was not a fight.

Equally, if they had already left, this would explainwhy they do not describe the incident on the last day as they were heading to the bus, and did not see it. [20] G. B. testified in cross-examination as to his previous statement given to the police, the question was put “Where in the cabindid it happen”. G. B. answered “Cabin fits 12 people, six bunks of two, I was right by H. K. and A.G.”. On its face it may sound like G.B. is referring to where G. B. may actually be standing when kicked by E. D. What he is doing though, is that he is talking about wherehis bunk was in relation to H. K. and A.G.’s bunk.

When he says “I was right by H. K. and A.G.”. G. B. is not saying that H. K. andA.G. are by him when the kick occurs. G. B. is saying in his statement where his bunk is located. In cross-examination he says thatwhat he said in his statement was true and goes on to explain where his bunk is located. He is talking about where his bunk was, notwhere he was in relation to H. K. and A.G. when he was kicked. I find no inconsistency in this. [21] I also found from observing G. B. testify, that he appears to have some cognitive development issues.

For example, whenasked how far away the bunk beds were from the doorway, he said three feet. After further discussion on this point later on, he indicatedwhen demonstrating in Court that the distance was from the witness stand to the first row of the public chairs, which would be about 18feet. He explained when referring to three feet he means three big steps. My observations of G. B. was that he was doing his best to tellthe truth, and answer as best he could.

In his answers I do not find any inconsistencies, or that he is changing his answers, it is more of acase of understanding what he is describing and how he refers to things, and doing his best to remember as best he could. [22] G. B. indicated that he told his Grade 7 teacher, Mr. Murphy, what happened. He indicates he never told anyone else whathappened that day, and was keeping everything to himself. He slept on the bus one to one and a half hours, indicating it was a painfulride home on the bus. He went to bed when he got home and later tells his parents of what had happened. I find that when G.

B. isdescribing sleeping on the bus and going straight to bed, that he was describing that he was feeling ill. He later testified of attending hisfamily doctor, attending a specialist, and being diagnosed with a broken testicle, requiring surgery. He eventually lost the testicle whichhad to be replaced by a prosthetic. [23] E. D. also testified that he and G. B. met at the doorway of the cabin when he was coming out of the cabin to go on the bus. He denies kicking G. B.. E. D.’s testimony does support the evidence of G. B. that E. D. and G.

B. met basically in the doorway of thecabin when they were preparing to go to the bus. [24] The testimony of E. D. and G. B. as to the two of them meeting in the doorway of the cabin when they are preparing to gohome on the bus, is basically the same. They both testified that this occurred. The only difference is that G. B. testified that E. D.kicked him and E. D. says he did not. This makes the case one of credibility. [25] In the case of R. v.

W.(D.)[1] the Supreme Court of Canada, Cory J., laid out the process to be followed in dealing with issuesof credibility in the context of reasonable doubt where an accused testifies on his or her own behalf. This process was restated by TallisJ.A. in R. v. McKenzie (P.N.): [4] … “In fact, both the Supreme Court of Canada and this court have recently considered this question, and suggestions have been made aboutwhat must be included in the charge to the jury: R. v. W.(D.) (SCC), (1991), 63 C.C.C. (3d) 397 (S.C.C.); and R. v.C.W.H. (BC CA), (1991), 68 C.C.C. (3d) 146 (B.C.C.A.).

What follows is a composite of the instructions given in

those two cases. The first, third and fourth instructions come from the judgment of Cory, J., who gave the majority judgment in R. v. W.(D.) at p. 409. The second instruction is suggested by Wood, J.A., who gave the judgment of this court in R. v.

C.W.H., at p. 155: ‘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 guilty of the accused.’ “It was stated by Cory, J., at the same page that this precise language is not required in every case.

It should also be noted that Cory, J.,was dealing with a case where there was very little circumstantial evidence, and he naturally directed his attention mainly to the conflicting evidence of the complainant and the accused. …”[2] [26] I do not believe E. D. when he says that he did not kick G. B. Based on the evidence that I do accept, being the evidence ofG. B. that E. D. kicked him in the testicles just prior to boarding the bus. I am convinced beyond a reasonable doubt that E. D. assaultedG. B. [27] This is based on E. D.’s testimony as to events over the two days.

He basically indicates that, if anything, he was the victimof an unprovoked assault by G. B., when referring to the incident on the first day. This, as I found previously, I do not believe E. D. inrelation to this incident and it is in direct contrast to H. K.’s testimony which I previously accepted. [28] I also find that E. D., on the bus ride to Kenosee Park, was assaulting G. B. by giving charlie horses to G. B., which is ineffect, punching him hard. In addition I find that E. D., without provocation, came into the cabin on the first day and hit G. B. when hewas sitting on his bed.

I find that, as testified by H. K., E. D. was trying to hit G. B. in the testicles but had missed. In addition I alsofind that E. D. was whipping money at, and hitting G. B. with a broom on another occasion. [29] With this history of behaviour of E. D. to G. B., testified by G. B., and the other two witnesses, A. G. and H. K., I do notbelieve the accused when he denies these events and does not speak to the bus incident. The accused’s statement that G. B. started thepunching on the first day is not supported by any of the witnesses, and I do not believe him. The pattern by the accused to G.

B. prior tothe kick to the testicles by E. D., indicates a pattern of tormenting and/or bullying G. B. over the school trip. [30] It was also established by the evidence of G. B., and not contested by the defence, that the injury to G. B. was a serious injuryrequiring surgery. G. B. testified that he went to the doctor the next day and was referred to a specialist in Moose Jaw for ultrasound andthis occurred two to three weeks later. He indicated that he remembers being in pain a lot in relation to the injury and having to put iceon the injury every two hours or every time it was hurting.

He then traveled later in October to Regina for surgery and the installation ofthe prosthetic. It took two to three weeks to recover after the prosthetic implant. During the period prior to the recovery from thesurgery he was limited to doing homework and playing video games. [31] Accordingly I find that the Crown has proven the charge as against E. D. beyond a reasonable doubt and find him guilty ofassault causing bodily harm pursuant to s. 267(

b) of the Criminal Code. [32] Dated at Estevan, in the Province of Saskatchewan, this 30th day of January, A.D. 2012. K. P. Bazin, J [1] R. v. S. (W.D.), (SCC), [1994] 3 S.C.R. 521. [2] R. v. M. (P.N.), (SKCA).