Her Majesty the Queen - v. -, 2012 SKPC 133

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 133 Date: August 16, 2012 Information: 37291563 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Eric Dean Wuttunee Appearing: M. Segu For the Crown J. De Whytell For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] Mr. Wuttunee is charged that on February 29, 2012 at Saskatoon, Saskatchewan he did: 1) in committing an assault on Erin Tootoosis use a weapon, to wit: an electrical cord, contrary to s. 267 (

a) of the Criminal Code ;

2) being bound by a probation order made by a Judge of the Provincial Court of Saskatchewan on November 29, 2010 without reasonable excuse fail to comply with a condition thereof, to wit: that he have no contact directly or indirectly with Erin Tootoosis except through a third party to arrange access to the children and/or with dated permission of the Probation Officer contrary to s. 733.1(1) of the Criminal Code ; 3) being bound by a probation order made by a Judge of the Provincial Court of Saskatchewan on November 29, 2010 without reasonable excuse fail to comply with a condition thereof, to wit: that he keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Criminal Code ; 4) being bound by a probation order made by a Judge of the Provincial Court of Saskatchewan on November 29, 2010 without reasonable excuse fail to comply with a condition thereof, to wit: that he not use, possess or consume alcohol or illegal drugs and not enter any licensed premises such as bars, pubs and lounges, except licensed restaurants, in which the main purpose is the sale or consumption of alcohol contrary to s. 733.1(1) of the Criminal Code . [ 2 ] The case for the Crown consisted of the evidence of Erin Tootoosis; a copy of a probation order dated November 29, 2010 was filed as Exhibit P-1 by consent.

The accused testified in his defence as did Jade Musqua. Both asserted that the accused was with Ms. Musqua at the relevant time and could not have committed the assault. The defence theory was that the injuries sustained by Ms. Tootoosis were self-inflicted. Erin Stephanie Tootoosis [ 3 ] Ms. Tootoosis is a 32 year old woman who had a relationship with the accused for approximately 6 or 7 years. That relationship ended around April 2011. On February 29, 2012, she was at her home in Saskatoon with her children. She was having some beer when the accused arrived, uninvited, about midnight.

They stayed awake all night, talking and drinking. Ms. Musqua had approximately 12 beer, but she could not say how many the accused drank. At about 6:00 a.m. an argument started as they were sitting at the kitchen table. She could not recall what she said which prompted the accused to slap her in the face. She could not say for certain how many times she was slapped just that she was “hit a lot”. As the accused became more angry he began to punch her with his fists. She raised her hands to cover her face and they, too, were bruised.

She tried to use the house telephone to call the police but the accused threw that phone, as well as her cell phone, into a sink full of water. [ 4 ] She described receiving punches to her chest, her face, the side of her head and her sides. During these assaults the children were in the home but not yet awake. Once they had gone to school, Ms. Tootoosis was led by the arm to the basement. She did not want to go, but described the accused as “big and strong” with a height of 5’10” to 6’ tall and weight of about 220 pounds.

She is 5’1” or 5’2”. [ 5 ] In the basement, the accused wrapped some Christmas lights around her neck and tried to hang her from a ceiling beam. She described the cord being wrapped sufficiently tightly around her neck to leave marks. The accused did not succeed in his attempt to hang her because the ceiling was too low. She could not recall how, but she was able to leave the basement and her home. The accused did not attempt to prevent her from going. [ 6 ] Although she was drunk, she remembers everything that happened.

She believes the accused was drunk because that was the only time that he abused her. [ 7 ] She identified the statement which she provided to the police on March 1 wherein she described the incident with a string of lights. She admitted that on the last court date she told the prosecutor that her statement about the light cord was not true. She said this because she had received threatening text messages and phone calls two days before she came to court. She was told in these messages not to go to court or alternatively, to say that her statement was false.

The telephone calls were voice mail messages and she did not recognize the voice. She no longer has the cell phone on which the text messages were received.

[ 8 ] A book of twenty-seven photos depicting injuries to Ms. Tootoosis was filed as Exhibit P-2. One photo shows what Ms. Tootoosis described as a big bump on her right eye, received from a punch by the accused. That injury lasted a very long time and she stayed home approximately one month. Another photo depicts her right eye partly closed and a mark on her cheek, which she attributes to a slap. She also identified marks on her neck that resulted from the cord being wrapped around it. She could not say whether the abrasion on her chin was the result of a blow or from the cord.

She also identified a bruise on her chest caused by a punch which also took a few weeks to heal. Two other photos depicted bruises to her hands which were the result of trying to protect her face from punches. [ 9 ] The accused called her from jail after he had been arrested to ask her to pay for his lawyer, to lie in court and to send him money. Those calls stopped in mid-April. [ 10 ] In cross-examination, Ms. Tootoosis acknowledged that the accused had entered a guilty plea to a prior assault upon her. For a time subsequent to that assault, they had no contact.

When he was released from custody, they began text messaging and discussed whether they would continue their relationship. [ 11 ] She learned that the accused was seeing Jade Musqua around Christmas 2011. The accused was at her home when she received a text from his mother that Jade missed him and that he should contact her. Ms. Tootoosis acknowledged that she was jealous but did not recall whether she kicked him out on that occasion. She agreed that she would frequently kick him out by telling him to leave and that he would go back and forth between her and Jade Musqua on a weekly basis.

In February 2012, she was upset about the fact that the accused had been staying with Ms. Musqua. She agreed that they called each other and that sometimes the accused would return when invited and other times would return unannounced. Ms. Tootoosis acknowledged that the accused would usually leave as soon as she asked him to, even if he had been drinking. She denied that she had a long-standing alcohol addiction or that she had ever stabbed herself. She acknowledged that she had been prescribed medication after a suicide attempt.

The only reason the Department of Social Services was involved with her family was as a result of domestic violence. [ 12 ] She did not take any medication on February 29 and had not indulged in any substance other than beer. [ 13 ] She did not telephone the police but rather went to the police station to report the assault and returned the next day to have photographs of her injuries taken. [ 14 ] She denied that she caused the injuries to herself. [ 15 ] In re-examination, she described herself as right handed. Eric Wuttunee [ 16 ] Mr.

Wuttunee admitted that he entered a guilty plea to a charge of assault on Erin Tootoosis and was sentenced to one year incarceration. When asked to describe that assault he said that they were out drinking and Ms. Tootoosis wanted to go home. She embarrassed him in front of other people so he struck her. He believed she hit her head on a towel rack. When he was released from custody they began speaking to each other and he went back to her home almost directly after his release. [ 17 ] He met Jade Musqua in December 2011 or January 2012. When Ms. Tootoosis would text him he would lie to Jade and return to Ms.

Tootoosis. He was back and forth on a regular basis and was sometimes at home with Ms. Tootoosis for only a couple of days. [ 18 ] On February 29, he was with Jade Musqua and had been there for three or four days. He was there until Ms. Tootoosis called him and invited him to return to her home on March 2. He was with Jade Musqua when she was arrested on March 1, 2012.

[ 19 ] In cross-examination, he acknowledged his criminal record including a conviction dated April 27, 2011, for assault causing bodily harm to Erin Tootoosis. He further acknowledged three prior convictions for obstructing a peace officer. He conceded in cross- examination that those were offences of dishonesty but qualified this admission by saying he was intoxicated at the time the offences occurred. [ 20 ] After his release from custody on the one year sentence, he lived at the Community Training Residence.

When given a weekend pass on November 27, he did not return and was consequently unlawfully at large. [ 21 ] He was in the community for the entire month of February 2012 and was going back and forth between Ms. Tootoosis and Ms. Musqua. His residence was with Ms. Tootoosis although he did not pay any rent. He denied that he came and went as he pleased, saying that he came and went as “she pleased”. In cross-examination, he agreed with the proposition that he was using both women. [ 22 ] When asked whether he told Ms. Musqua about Ms. Tootoosis, he said someone else told her and she subsequently confronted him.

When it was proposed that Ms. Musqua was not happy with that situation, he replied “she didn’t care . . . she had a boyfriend as well”. He denied that Ms. Musqua ever asked him to leave her residence. [ 23 ] He arrived at Ms. Musqua’s home at the end of February, “probably the 26 th or 27 th . . . maybe even the 25 th ”. He agreed that he was not good with dates and when it was suggested that he didn’t know for sure when he arrived at Ms. Musqua’s he said, “I know”. When pressed, he settled on the 27 th and said that he was there for three to four days for sure. Asked where Ms.

Musqua lived, he provided the address of 1007 - 8 th Street, then suggested that it might be 6 th Street. Later he indicated that it was possibly 2 nd or 3 rd Street and that the house number may be 1002. Although he did not know the specific address, he said he knew how to get to Ms. Musqua’s home. [ 24 ] He arrived by cab around 8:00 a.m. or 9:00 a.m. in the morning. He did not bring any clothing with him that day and did not have any at Ms. Musqua’s residence although he had previously kept some clothing there. [ 25 ] After arriving on February 27, he sat around with Ms.

Musqua’s brother, who also lived in the home, and listened to music. He may have gone to the store that day with Ms. Musqua and he may have gone to the off-sale a couple of times but was not sure whether he went alone. He drank 3 two-litre coolers throughout that day. He agreed that alcohol is not an aid to memory and admitted that he had a bad memory at the best of times. [ 26 ] When asked about his activities on February 28 he said he “probably” left the house, but could not say for sure. He may have walked to the off-sale. [ 27 ] On February 29, he “hung out with Jade and her brother” and “listened to music”.

He did not believe he left the house on February 29, but it was “a very long time ago” and he probably did go to the local Mac’s store, possibly for cigarettes. When asked again whether he left the house on February 29, he said that he had no money and therefore no reason to leave. He denied that he spoke to Ms. Tootoosis until March 2. [ 28 ] He could not recall if he left the Musqua home on March 1. Later he testified that he may have gone to Mac’s confectionary. He reiterated that this occurred a long time ago.

When pressed about whether anything significant happened on March 1, he said he did not know but would probably remember if he was told, again referring to his poor memory. [ 29 ] He was arrested on March 2 and spoke to Erin Tootoosis a number of times while he was in custody. She wanted him to come home and was “apologetic for all this”. He agreed that he asked her for money to pay a lawyer and to make purchases at the jail canteen. He denied that he told Ms. Tootoosis to change her story.

Jade Musqua [ 30 ] Ms. Musqua testified that she met the accused at the beginning of December 2011 at the home of her friend’s father. She began dating him but did not find out about his relationship with Erin Tootoosis until about the end of December. When asked where the accused was when he was not with Ms. Tootoosis, she replied “1007- 2 nd Street East”. Her perception was that the accused was with her “all the time pretty much” and that he would not leave very often. [ 31 ] She was at home in February 2012 caring for her child and did not work outside the home.

The accused was with her in the month of February and left only for a couple of days. He came back on February 27 at about 9:00 in the morning and she paid for his cab. On that day, they simply hung around her home. They also remained at home on February 28 and February 29. Throughout the time the accused was at her home in February, her brother was also present. [ 32 ] On March 1, she and the accused took the bus to Walmart where she was caught stealing and consequently breaching her conditional sentence order.

She volunteered that the accused did not know that she was stealing. [ 33 ] In cross-examination, she said that by March 15, 2012, she was aware that the accused had been charged with assaulting Ms. Tootoosis. She learned this because she and the accused were corresponding while they were in jail. She was released from custody on May 19. [ 34 ] She agreed that she cared for the accused and would not want him in jail wrongfully. In spite of this, she did not tell the police, or anyone, that the accused was with her at the time he was alleged to have assaulted Ms. Tootoosis.

She recognized this as important information which she kept to herself until she came to court on July 4, 2012. [ 35 ] She learned of the accused’s relationship with Ms. Tootoosis when he returned to her home with a hickey; she was very upset, confronted him and he told her about his other relationship. She denied hearing about it from a third party. There were only a couple of times between December and March that the accused left her home for Ms. Tootoosis. [ 36 ] Ms. Musqua acknowledged two convictions for obstructing a peace officer.

She admitted that those offences involved lying but rationalized her behaviour by saying that she must have been scared when she did it. [ 37 ] On February 27, she left her home only to pay for the cab the accused had taken and to go to the local confectionary. She did not remember going anywhere else on the 27 th and did not believe that the accused left the house at all. She acknowledged that the accused did not bring any clothes with him and that he did not have any clothes at her residence.

He had clothing there at one time, but when she became angry with him she removed them from her home. [ 38 ] When cross-examined about February 28 and 29, she reiterated her belief that they had not gone anywhere. At Walmart, on March 1, she “took a few things” but when it was suggested that she took quite a number of cosmetic items, she conceded that she had. She agreed that she was stopped by a Loss Prevention Officer outside the store and when asked whether the accused was with her at the time, she replied “yes”. When asked if the accused would have seen her arrest, she said “he left when I was stopped”.

She further acknowledged that the police arrested her and read her rights to counsel. [ 39 ] In cross-examination, she said that Aaron Cote was a male friend of hers. When confronted with the police report which indicated that she told officers that it was Aaron Cote who was with her at the time of her arrest, she acknowledged that was so. She explained that she was at Walmart with the accused but that she also met Aaron Cote there. When it was suggested that she either lied to the police or to the Court about who was with her at the time of her arrest, she denied lying to the Court. ISSUES

[40] As counsel fairly and accurately stated, this matter turns on the Court’s analysis of the evidence and of the credibility of thewitnesses. The accused also asserts an alibi for the time during which the assault is alleged to have occurred. ANALYSIS [41] The Charter of Rights and Freedoms enshrines the right of an accused to remain silent. However, an accused who stands onthat right and does not make a timely disclosure of an alibi runs the risk of the Court drawing an adverse inference from that failure.

Thisdoes not mean that the police must be told of an alibi promptly upon an arrest; it means that a defence of alibi needs to be revealed in asufficiently detailed fashion to allow the authorities adequate time to meaningfully investigate it: see R. v. Cleghorn, (SCC), [1995] 3 S.C.R. 175. The rationale for this rule is described in Cleghorn (supra) as one of expediency, and intended to guardagainst surprise alibis being concocted at trial thus inhibiting or preventing meaningful cross-examination. Clearly, if an alibi isbelieved, the accused is entitled to an acquittal.

If it is not believed, the Court must still consider whether it raises a reasonable doubt. Ifan alibi is disproved or proven to be a fabrication, the Court can draw an adverse inference from it as to the guilt of the accused. [42] The assertion of an alibi does not in any way shift the onus to the accused or diminish the burden upon the Crown ofproof beyond a reasonable doubt. It does require that the Court first analyse the evidence of alibi. If it is accepted, clearly an accusedcannot be found guilty, having established that he was elsewhere at the time the offence was alleged to have been committed.

If it isdisbelieved, the Court must consider whether the evidence establishes the allegations beyond a reasonable doubt. [43] As the accused has categorically denied the acts alleged, the Court also must pay heed to the well-known principles derivedfrom R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 and R. v. McKenzie (1996), (SK CA), 141Sask. R. 221. [44] Having listened carefully to and subsequently reviewed the evidence, I find that I do not accept the alibi evidence profferedby the defence.

The testimony of the accused was devoid of detail, fraught with internal inconsistencies and, in many respects,conflicted with the evidence of Ms. Musqua. For example, the accused initially stated that he did not leave the Musqua home onFebruary 29, then said he may have gone to the confectionary for cigarettes. Later, he indicated that he would not have gone anywherebecause he had no money. On March 1, Ms. Musqua said that she and the accused went to Walmart, where she was arrested; in spite ofthat, the accused had no recollection of the events of March 1, until prompted by a leading question from his counsel.

When confrontedin cross-examination with her statement to the police that her male companion on March 1, 2012 was someone other than the accused,Ms. Musqua told the Court, for the first time, that she met Aaron Cote while at Walmart. This response struck the Court as an on thespot fabrication to explain something which she had not been anticipating. The accused and Ms.

Musqua gave conflicting versions as tohow she learned of his relationship with the complainant and how frequently he went back and forth between their homes. [45] The accused frequently justified his responses by saying that he had a poor memory; clearly this would have been rectified ifhe had promptly informed the police or his counsel of his alibi and made notes of his activities while they were fresh in his mind.Although counsel for the accused argued that the Court should take judicial notice of systemic racism and the reluctance of Aboriginalpeople to deal with authority figures and thus justify the late disclosure of the alibi, I find that I cannot do so in the absence of anyevidence to that effect. [46] On the whole, the numerous inconsistencies in the defence evidence, coupled with the late disclosure of the alibi and theconvenient memory lapses experienced by the accused, cause the Court to conclude that the alibi evidence is unreliable and insufficientto warrant an acquittal on the basis that the accused was elsewhere. [47] That, however, does not end the matter.

The Court must go on to consider whether a reasonable doubt has been raised in spiteof the unreliability of the defence evidence. If a doubt is not raised, the Court must then determine whether the evidence establishes theoffences alleged to a standard of beyond a reasonable doubt. After reviewing the evidence as a whole, I find that I do not believe theevidence of the accused nor does it raise reasonable doubt. The reliability of the defence evidence is questionable and not particularlycompelling.

In addition to the late coming alibi, the theory of the accused is that the complainant inflicted upon herself the injuries to herface, hands, chest and neck. The number, degree and varied nature of those injuries makes this evidence from the accused unbelievable. Overall, the Court finds the defence evidence does not raise a scintilla of doubt.

[ 48 ] On the other hand, the Court has no hesitation in accepting the evidence of Ms. Tootoosis who testified in a straightforward and candid way and gave a version of events which was consistent. The photographic evidence supports her description of the assault. She did not shy away from those questions about her mental health and use of illicit substances which tended to place her in a bad light. Overall, her responses to questions appeared spontaneous and without guile and that did not change during cross-examination.

CONCLUSION [ 49 ] Having accepted the evidence of the complainant in its entirety, and having the benefit of the probation order referred to in Counts 2 through 4, the Court finds that the constituent elements of all of the offences alleged have been proven beyond a reasonable doubt and the accused is found guilty on all counts. _________________________ M.L. Gray, J