Her Majesty the Queen - v. -, 2018 SKPC 54

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 054 Date: September 19, 2018 Information: 991007357 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Layton Paskimin Appearing: Ms. L. Dunning For the Crown Ms. K. Hodgson-Smith For the Accused JUDGMENT D.C. SCOTT , J Introduction [ 1 ] The accused Layton Paskimin is charged that on March 31, 2017: 1. While bound by a recognizance under s. 810.2 of the Criminal Code , he committed a breach by failing to keep the peace and be of good behavior contrary to s. 811 of the Criminal Code ;

2. He committed an assault on Nicole Lafond causing her bodily harm contrary to s. 267 (

b) of the Criminal Code ; 3. With intent to enable himself to commit the indictable offence of assault causing bodily harm did attempt to render Nicole Lafond unconscious by choking her with his hands, contrary to s. 246 (

a) of the Criminal Code . [ 2 ] At trial, the Crown called as witnesses the complainant Nicole Lafond, Ellen Morin, Randi Hurd, and Cst. Kayla Janson. The defence called as witnesses Sheena Paskimin and the accused Layton Paskimin. [ 3 ] As background, it is common ground that Nicole Lafond and Layton Paskimin were in a domestic relationship at the time of the alleged offences. The complainant ’ s testimony was completed on the first day of trial. She returned to court unsolicited on the adjourned date indicating to Crown counsel and the police that she wished to change her previous testimony.

The trial was adjourned from time to time to allow the Crown to investigate. In the meantime, Mr. Paskimin discharged his Legal Aid counsel, his second counsel was appointed by the Court but later withdrew and his current counsel was subsequently appointed to represent him. Ms. Lafond was recalled on July 17, 2018 to testify with respect to her apparent recantation and the trial concluded July 20, 2018. [ 4 ] Midtrial, the defence brought an application for the declaration of a mistrial and a Charter application alleging Mr. Paskimin ’ s ss. 7, 11(

b) and 11(

d) rights were violated. The Court dismissed the mistrial application at the time, but the defence renewed that application at the conclusion of the trial. [ 5 ] Further, based upon the evidence, the Crown submitted that all of the elements of count 3 had not been proven at trial. The Crown conceded that Mr. Paskimin should be found not guilty on that count. [ 6 ] For the following reasons, I have found that Mr. Paskimin’s Charter rights were not violated and that no stay of proceedings is warranted. I have also declined to declare a mistrial.

On the totality of the evidence, I am convinced beyond a reasonable doubt that Mr. Paskimin committed an assault on Ms. Lafond causing her bodily harm and committed a breach of his s. 810.2 peace bond for failing to keep the peace.

Summary of the Evidence Nicole Lafond ’ s July 20, 2017 Testimony [ 7 ] The complainant Nicole Lafond testified that on March 31, 2017, she and the accused had been in a common law relationship for two years. [ 8 ] According to Ms. Lafond, on the night of March 30, 2017, she, the accused and two others were drinking and went to the casino. Over the course of the evening, they consumed approximately 36 beers and two coolers between the four of them. After going with Mr. Paskimin to get cigarettes, Ms.

Lafond went to her own home to sleep. [ 9 ] On the morning of March 31, 2017, the accused went to the complainant’s apartment. From there, the complainant, the accused and the complainant’s cousin, Eric Lafond, went to Mulberry’s for breakfast. During that time, they consumed a mickey, of which Ms. Lafond had two shots of alcohol because she was hung over. [ 10 ] The complainant and the accused returned to the accused’s apartment and from there they walked to the home of her aunt, Sharon Rabbitskin, on Avenue “M” and 21 st Street. While there, Ms.

Lafond joked about taking some alcohol, which made the accused mad, because he did not like her drinking. He grabbed her arm and took her into the hallway of the building where they began

arguing. She told him she was leaving and tried to walk away but the accused tried to stop her. According to the complainant, he grabbed her by the throat with one hand, at which time she blacked out and fell down the stairs. [ 11 ] Ms. Lafond ran down the hallway of the apartment building toward the back door. The accused grabbed her by the shoulder, ripped her sweater and punched her on the left, bottom portion of her face. She did not fight back, but instead, tried to run away. [ 12 ] Ms. Lafond tried to leave through the back door at the alley and as she did, the accused grabbed her by the hand.

She began to cry and the accused said “No you’re fucking coming home with me” and “shut the fuck up”. According to Ms. Lafond, he pulled her toward him and bit her on the mouth. He continued to insist that she return home with him. She testified she resisted and tried to pull away. [ 13 ] While still in the alley, Ms. Lafond testified the accused then bit the fingers of her right hand. She ran away but he caught up with her, grabbed her by her head and started biting her on her head.

He continued to tell her to shut up and insisted that she was going with him. [ 14 ] The accused grabbed her by her clothes, forcing her to walk with him as he dragged her approximately half a block down the alley. [ 15 ] At Avenue “M”, between 20 th and 21 st Streets she attempted to get away. She did not want to go home with him because of their history of fighting and arguing. He held her by her head, punched her and told her to “ shut the fuck up ” .

She recalled a postal worker watched them but did not assist her even though she was bleeding and had asked him to call 9-1-1. [ 16 ] At Avenue “O” and 20 th Street, near Larson House, they continued to argue and she screamed for help. Ms. Lafond testified that the accused dragged her by her hair, which she wore in a ponytail, placed her in a headlock, and hit her on her left cheek with his closed hand. At one point, she was on the ground. [ 17 ] They walked approximately ten or twelve blocks in a circuitous route from one alley to another.

The complainant acknowledged that she saw two police cars between Avenue “P” and 20 th Street but did not flag them down for help. At that time, the accused used his sweater to wipe the blood from her face. [ 18 ] Near Avenue “M” and 22 nd Street, Ms. Lafond said that she gave in and started walking with the accused to his place because she was tired of being struck. She was bleeding from her mouth and wanted to clean up her face. She thought of her children and did not want them to see her in that condition. [ 19 ] Ms.

Lafond testified that once at the accused’s apartment, he ripped off her clothing leaving her wearing only her bra. She told the accused she did not want to be with him anymore and that their relationship was not healthy. The accused became angry again, sat on top of her and grabbed her with both hands around her neck, telling her to shut up. [ 20 ] Ms. Lafond testified that throughout these events, she did not fight back. Further, there was no basis for the accused to be angry with her other than her telling him she did not want to be with him. [ 21 ] Ms.

Lafond’s aunt, Ellen Morin, arrived at the accused’s apartment, so Ms. Lafond grabbed her clothing and ran out of the apartment, as she stated, “for her life”. Ms. Lafond left with Ms. Morin for Ms. Lafond’s grandma’s place. Ms. Lafond did not want to call the police, but her grandma and Ms. Morin did. [ 22 ] On March 31, 2017, Ms. Lafond gave a statement to the police, which was recorded in the back of a patrol car. The following

week, she attended at the police station and made a written statement recanting her recorded statement. At trial, she explained that Mr. Paskimin was calling her regularly from the correctional centre. Her children had been apprehended and she needed Mr. Paskimin’s comfort. In addition, she did not want her social worker to find out about the assaults. [ 23 ] Ms. Lafond testified that the police refused to take her written recantation telling her that she could go to jail for mischief. She provided the written statement to Mr. Paskimin’s counsel at the time. [ 24 ] Ms.

Lafond stated at trial that her testimony regarding the incident was the truth and that she recalled the day “like it was yesterday”. Nicole Lafond ’s July 17, 2018 Testimony [ 25 ] Ms. Lafond was recalled to the stand on July 17, 2018. At that time, she testified that on September 20, 2017 she had attended the Provincial Court building with her daughter, mother-in-law, and sister-in-law. She informed Cst. Janson that she had lied on July 20, 2017 when she testified and that she wanted to go back to Court to tell the judge. The Crown prosecutor told her that she should not be at court that day.

Police arrived and she was arrested because she had outstanding warrants. [ 26 ] In April 2018, she was interviewed by Detective Maloney about why she had wanted to change her evidence on September 20, 2017. At that time, the officer did not tell her that she would be charged with obstruction if she recanted. [ 27 ] Ms. Lafond testified that on September 20, 2017, she was under a lot of pressure from Mr. Paskimin and his family. He had been constantly calling her and she called him. She still had feelings for him. [ 28 ] According to Ms.

Lafond, on September 20, 2017 when she returned to court to tell the judge that she had previously lied, that was not, in fact, the truth. Her intention was to have the charges dropped because she did not want to be responsible if Mr. Paskimin were convicted. She was willing to say that her previous testimony was all a lie but it was not. [ 29 ] She confirmed that her previous testimony was in fact correct. She confirmed that on July 20, 2017 she had been truthful and honest about what had happened to her and that the assaults occurred as she had testified. Ellen Morin [ 30 ] Ms. Morin is the complainant’s aunt.

She testified that on March 31, 2017 she went to Mr. Paskimin’s apartment and that Ms. Lafond asked if she could leave with Ms. Morin. Ms. Lafond looked scared and frantic. Ms. Morin did not know the reason, but she observed bruises and what appeared to be bite marks on Ms. Lafond on her hand and arms. Once at Ms. Lafond’s grandma’s place, they called the police. Ms. Morin described Ms. Lafond as “half-drunk”, meaning not drunk but not sober. She could converse and appeared to understand what was happening. Randi Hurd [ 31 ] On March 31, 2017, Ms. Hurd was employed as a Mental Health and Addictions Counsellor.

At approximately 11:00 a.m. on that day, she was at the Larson House detox unit to pick up a client. On a map of her location at the time, she indicated she was near Avenue “O” and 21 st Street. Ms. Hurd observed two people involved in an altercation. The male was wearing a white ball cap and black attire. He was holding onto the female he was with by her wrists with both of his hands and dragging her down the alley. The female was pulling back. They were walking slowly, side by side and both appeared to be intoxicated.

[ 32 ] The female was wearing dark attire as well and had her hair in a long ponytail. The witness observed the female ask the male to let her go and asked someone to call the police. The male grabbed the female by her ponytail and twisted it clockwise, bending her neck back, so that her face was pointing upward. He dragged her by her ponytail for approximately 30 seconds. He then went back to grabbing her by her wrists. They went down the alley to an apartment building. The female was crying, upset and distressed, asking for help. The male appeared to be “set on his actions”.

He forcefully asked the female to be quiet. [ 33 ] Ms. Hurd called the police because it appeared to her that this was a domestic violence situation and that the male was holding the female against her will. [ 34 ] Ms. Hurd did not know the individuals but was no more than ten feet from them. The witness could not see the male’s face very well due to the way he was wearing the ball cap. Ms. Hurd has seen the female in the courthouse in relation to this case. Cst. Kayla Janson [ 35 ] On March 21, 2017, at approximately 11:45 a.m., Cst. Janson was on duty and was dispatched to a residence at 131B Avenue “Y” South.

When she arrived she found Ms. Lafond crying, shaking and upset. Cst. Janson saw no signs of intoxication from Ms. Lafond. Paramedics were present. Cst. Janson spoke with Ellen Morin. The officer was aware of a call from Randi Hurd regarding a domestic dispute in the area. [ 36 ] Cst. Janson observed injuries on Ms. Lafond, including what appeared to be bite marks on both hands, which were swelling. Her lip was cut and her chin was swelling. [ 37 ] Ms. Lafond was willing to provide a statement but because of the injuries to her hands, was unable to write. The officer recorded Ms.

Lafond’s statement on video in the patrol car. When they returned to the house, Ms. Lafond was afraid, so the officer stayed with her for awhile. [ 38 ] Cst. Janson confirmed the conditions in a Peace Bond entered into by Mr. Paskimin, exhibit P-3, which included a condition to “keep the peace and be of good behavior.” [ 39 ] In cross-examination, Cst. Janson testified that on September 20, 2017, she was waiting to give evidence in this trial and was seated outside of the courtroom door. At that time, she saw the complainant. The officer was aware that Ms.

Lafond had testified on July 20, 2017 and was unsure why Ms. Lafond was back in court on September 20, 2017. The officer became aware that Ms. Lafond wanted to go back before the judge to change her previous evidence. The officer noted there were quite a few people with Ms. Lafond. [ 40 ] The Crown prosecutor asked Cst. Janson to call other officers to have Ms. Lafond removed from the courthouse. Cst. Janson waited to point out Ms. Lafond to the officers when they arrived. Layton Paskimin [ 41 ] Mr. Paskimin testified on his own behalf. He is a 38-year-old man from Thunderchild First Nation.

He has been previously diagnosed with schizophrenia and bipolar disorder. He is the eldest of six siblings, including four sisters and one deceased brother. He testified to his criminal record. Mr. Paskimin described Ms. Lafond as his common-law partner. [ 42 ] Mr. Paskimin testified that on March 30, 2017 he received a cheque in the amount of $750 from Social Services to be used for furniture for his apartment at #4 - 342 Avenue “R” South where he had recently moved. Ms. Lafond asked Mr. Paskimin for money to buy narcotic pills. At approximately 6:00 p.m., Mr. Paskimin, Ms.

Lafond and others decided to go to the casino to play slots using Mr. Paskimin’s money. While at the casino, Ms. Lafond and Mr. Paskimin drank beer.

[ 43 ] They returned to his apartment at approximately 10:00 p.m., left to buy more beer and returned to Ms. Lafond’s mother’s apartment, which was across the hall from Mr. Paskimin’s, where they continued to drink. Mr. Paskimin and Ms. Lafond returned to his apartment, where, using his words, they “became intimate”. Later, they went to the store for cigarettes. It was during that time, while in the alley, that Mr. Paskimin and Ms. Lafond began to argue. Ms. Lafond and Mr.

Paskimin parted ways at that point and he slept on the street that night. [ 44 ] On March 31, 2017, at 6:30 a.m., he returned to his apartment and then went by cab to Ms. Lafond’s residence at her request. Ms. Lafond and her cousin Eric Lafond were there. Mr. Paskimin opened the mickey of vodka that Ms. Lafond had given him the night before, which they began to drink. At that point, Mr. Paskimin had only $60 remaining from his $750 cheque. They went to the library so Ms. Lafond could use a computer to transfer some funds, but it was not open, so they went to Mulberry’s for breakfast.

They continued to drink from the mickey while there. They returned to his place at approximately 10:00 a.m. Mr. Paskimin had $20 left which he gave to Eric Lafond. [ 45 ] Ms. Lafond and Mr. Paskimin went to Sharon Rabbitskin’s home . Ms. Lafond and Ms. Rabbitskin began to argue because Ms. Lafond wanted to take some beer. Because Mr. Paskimin did not want her to do so, he said Ms. Lafond became angry. [ 46 ] Mr. Paskimin and Ms. Lafond left the apartment and entered the hallway. Ms. Lafond started punching and yelling at Mr. Paskimin. He began to walk away from her. Ms.

Lafond walked out of the apartment toward the back alley and 22 nd Street. He followed, calling her and telling her that she was walking in the wrong direction, because he thought they would be walking back to his place. [ 47 ] They argued and fought while they walked. Mr. Paskimin testified he tried to control Ms. Lafond in an effort to take care of her, because as he stated, she “wasn’t herself” and “I wasn’t myself” because they had been drinking. [ 48 ] According to Mr. Paskimin, they decided to go back to his apartment. They walked through the alley near Larson House. A police cruiser drove by and Ms.

Lafond began kissing Mr. Paskimin. According to Mr. Paskimin they stopped at Larson House and had stopped fighting. Mr. Paskimin testified that Ms. Lafond started hitting him and he held her hands to prevent her from continuing to do so. [ 49 ] Mr. Paskimin denied that he bit Ms. Lafond. He stated they were both fighting and admitted that he held her hands because she was trying to hit him in the face. Further, he admitted that at Larson House, he “kind of grabbed her hair and tried to calm her down”. He testified he did not know what to do, explaining he did not want to hit her. Rather, he wanted Ms.

Lafond to be in a safe place. He testified that when the police cruiser passed them he became concerned that they would both go to jail. He was bound by court-ordered conditions not to drink or cause a disturbance. [ 50 ] They returned to his apartment at approximately 11:00 a.m. and began watching television. Ellen Morin arrived at his apartment looking for Eric Lafond, but he was not there. Ms. Lafond came from behind Mr. Paskimin and left with Ms. Morin. He described Ms. Lafond as happy and intoxicated when she left. He remained at his apartment. He denied confining Ms.

Lafond in his apartment. [ 51 ] In cross-examination, Mr. Paskimin described his level of intoxication as “pretty out of it” on the morning of March 31, 2017. This was the first time he had consumed alcohol in four years. He was still feeling the effects of the alcohol from the night before when he continued drinking the next morning. [ 52 ] Mr. Paskimin denied choking Ms. Lafond in the stairwell or while they were walking stating that he loves her. He was not shaken in his denial that he grabbed Ms. Lafond by the neck. He testified he was not upset with her when they left Ms. Rabbitskin’s place; rather, Ms.

Lafond was upset with him.

[ 53 ] He explained that when the police cruiser passed by, even though Ms. Lafond was hitting him, he did not seek help because he did not want her to be alone in the alley, making her vulnerable. He wanted to take her to a safe place. [ 54 ] Mr. Paskimin denied causing the injuries to Ms. Lafond shown in the photographs (exhibit P-1). He testified it was not possible that she acquired the bruises from their scuffling in the alley, although he acknowledged he did not inspect her for injuries. Sheena Paskimin [ 55 ] Sheena Paskimin, a sister of Layton Paskimin, testified on behalf of the defence.

Their mother resides on Thunderchild First Nation. The Paskimin siblings reside in Saskatoon, except for Sheena Paskimin who resides in Meadow Lake. She testified she does not keep in touch with all of them. They all treat Ms. Lafond like family. [ 56 ] She testified that since the date of the charges Ms. Lafond has contacted her from time to time needing help with groceries for her and her children. [ 57 ] At trial, defence sought to introduce copies of screenshots of excerpts from certain Facebook messages (exhibit D-2). They are a sample of messages between Ms. Paskimin and Ms.

Lafond sent at various times in 2017 and 2018. The messages were tendered by the defence to demonstrate the nature of the relationship between the two women. I decided the messages were admissible, reserving the matter of the weight afforded to them and inferences to be drawn from them. [ 58 ] Ms. Paskimin’s and Ms. Lafond’s conversations focused on their children and financial issues. Ms. Lafond asked Ms. Paskimin for advice regarding her court matters, but Ms. Paskimin told her it was not her place to advise her in that regard and that “it was their relationship”. Ms. Lafond gave her Mr.

Paskimin’s phone number while he was in custody, but she made no phone calls to him on behalf of Ms. Lafond, even though she was asked to do so. [ 59 ] Ms. Paskimin denied threatening Ms. Lafond in any way to protect her brother. Ms. Lafond talked to her about the evidence she provided to the Court, but Ms. Paskimin denied attempting to influence her about the evidence she gave in court. Ms. Paskimin did not ask her to change her testimony and did not observe any other family members threatening Ms. Lafond. [ 60 ] Ms. Paskimin’s message to Ms.

Lafond on July 25, 2017 stated “I feel like shit that we buried my baby bro and now my only bro left, I will never see again”. History of the case [ 61 ] The trial in this matter commenced July 20, 2017 at which time the complainant was examined-in-chief and was cross- examined. The trial did not finish on that date and was adjourned to September 20, 2017. In the interim, Mr. Paskimin discharged his Legal Aid lawyer, Ms. Talbot, and on August 30, 2017 Mr. Brent Little was appointed by the Court to represent Mr. Paskimin. [ 62 ] On the adjourned date of September 20, 2017, the trial did not proceed.

The Court was informed that an issue had arisen with respect to the complainant. Although the Court was not told at the time, it was later disclosed that the complainant had attended the Provincial Court building on that day asking to speak with the judge so that she could change her testimony given on July 20, 2017. Quite properly, the Court was told only that an issue had arisen unexpectedly which required further investigation. [ 63 ] The trial was adjourned by consent to February 26, 2018 and March 2, 2018 for continuation. On November 23, 2017, Mr. Little sought leave to withdraw as counsel for Mr. Paskimin.

His current counsel was then appointed, and she assured the Court that the adjourned trial dates were suitable for her.

[64] On February 22, 2018 the Crown and defence sought a further adjournment of the trial. The Crown was still investigating thematter of the complainant's possible recantation on September 20, 2017 and the defence had only recently learned of the issue with thecomplainant.

On February 22, 2018, the Court, concerned about trial delay, denied the adjournment request and directed the trial wouldproceed on February 26, 2018. [65] Upon reflection, the Court recognized the disadvantage placed upon the defence due to the recent disclosure and onFebruary 26, 2018 the Court granted the adjournment, although this is not reflected in the subsequent Charter notice that was filed. [66] The Court directed the Crown to provide disclosure to the defence. The Court also directed the Crown to make thecomplainant available on the adjourned trial date.

The trial was adjourned to May 2, 2018. [67] On May 2, 2018, the defence filed an application for mistrial and a Charter notice under ss.7, 11(

b) and 11(d). TheCourt was informed that disclosure had only been provided to the defence on April 23, 2018 and April 27, 2018. Due to late disclosure,the defence was not ready to proceed on May 2, 2018. [68] On May 2, 2018, after hearing submissions from counsel, I declined to declare a mistrial. The trial was adjourned to July 17, 2018 and July 20, 2018. The Crown was directed to have the complainant present to allow thedefence to cross-examine her with regard to her potential recantation on September 20, 2017 and the reasons for it. [69] The trial proceeded on July 17, 2018 and was concluded on July 20, 2018.

Mr. Paskimin has consented to his remand incustody since his arrest on April 1, 2017. Issues 1. Have Mr. Paskimin's ss. 7, 11(

b) and 11(

d) Charter rights been violated thereby warranting a stay of proceedings? 2. Should the Court declare a mistrial? 3. Has the Crown proven beyond a reasonable doubt that Mr. Paskimin assaulted Ms.

Lafond causing her bodily harm? [70] I have considered the following cases: R v O’Connor, (SCC), [1995] 4 SCR 411 [O’Connor]; R v Light(1993), (BC CA), 78 CCC (3d) 221(BCCA) [Light]; R v Babos, 2014 SCC 16, [2014] 1 SCR 309 [Babos]; R vAnderson, 2014 SCC 41, [2014] 2 SCR 167; R v Regan, 2002 SCC 12, [2002] 1 SCR 297 [Regan]; R v Jordan, 2016 SCC 27, [2016] 1SCR 631 [Jordan]; R v Coulter, 2016 ONCA 704, 340 CCC (3d) 429 [Coulter]; R v Charles and Kaiswatum, 2015 SKQB 381 [Kaiswatum]; R v W.(D)., (SCC), [1991] 1 SCR 742 [W.(D.)]; R v Whitman, 2005 BCSC 1574, 35 CR (6th) 12[Whitman]. Discussion 1. Have Mr.

Paskimin’s ss. 7, 11(

b) and 11(

d) Charter rights been violated thereby warranting a stay of proceedings?

[ 71 ] The accused alleged that his ss. 7, 11(

b) and 11(

d) Charter rights were violated. In essence, the accused alleged abuse of process, lack of a fair trial and unreasonable delay and asked that this Court enter a stay of proceedings or declare a mistrial. [ 72 ] Allegations of abuse of process and unreasonable delay must be considered and dealt with independently of each other: Light , para 80 . Abuse of Process [ 73 ] A stay of proceedings is an extreme remedy: Regan , para 53 . Such a remedy for an abuse of process will only be warranted in the clearest of cases: O ’ Connor , para 68. Two types of conduct may warrant a stay.

The first is conduct that compromises the fairness of an accused ’ s trial (the “ main category ” ). The second is conduct that does not threaten trial fairness but risks undermining the integrity of the judicial process (the “ residual ” category): Babos , para 31 , citing O ’ Connor , para 73. [ 74 ] The test for both categories of state conduct is the same and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” ( Regan , at para. 54 );

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted . . . , the court is required to balance the interests in favour of granting a stay, . . . against “the interest that society has in having a final decision on the merits” ( ibid. , at para. 57): Babos , para 32 . [ 75 ] In the present case, the accused complained of the following state conduct: (1) intimidation of the complainant by the Crown and police; (2) failure by the Crown to allow the complainant to testify again on September 20, 2017; (3) failure by the police to diligently investigate Ms.

Lafond’s attempt to recant on September 20, 2017; and (4) late disclosure midtrial with respect to the evidence of the complainant’s attempt to recant on September 20, 2017. Both the main and residual categories of state conduct are invoked. Intimidation of the complainant by the Crown and police [ 76 ] The defence alleged that the police and Crown’s actions in April 2017 and on September 20, 2017 intimidated the complainant and prevented her from recanting her original statement to the police and her testimony in Court. The complainant’s first recorded statement was taken by Cst. Janson on March 31, 2017.

The following week, the complainant attempted to provide a written recantation to the police. She testified the “Chief of Police” told her they would not take her statement because they had all the evidence they needed. Further, she was told that she could be charged with mischief and could go to jail. [ 77 ] The complete nature of the conversation between the police and the complainant is unknown. It may well be that the police warned the complainant against making a false statement which could result in a charge being laid.

I would not characterize such cautioning as intimidation. [ 78 ] On September 20, 2017, when Ms. Lafond attended at the courthouse stating she wanted to change her testimony, the Crown prosecutor told the complainant that she was not supposed to be at Court that day. Ms. Lafond was escorted from the building by two police officers as she was no longer under subpoena and had no reason to be present. She was then arrested on an outstanding warrant.

[ 79 ] Cst. Janson was present outside the courtroom on September 20, 2017, but had limited dealings with Ms. Lafond. The officer believed there had been a disturbance of some sort, but did not see it. The Crown prosecutor asked her to contact other officers to have Ms. Lafond removed from the courthouse. [ 80 ] I am not convinced that Ms.

Lafond was arrested in order to intimidate her or prevent her from changing her earlier testimony. [ 81 ] The state conduct, if interpreted by the complainant as intimidation, might well have had a lasting impact on the conduct of the trial or its outcome, particularly if she was prevented from clarifying her evidence. However, any prejudice arising from the complainant’s apparent equivocation was remedied when the complainant was recalled so that she could be cross-examined by the defence. [ 82 ] A stay of proceedings is not warranted in response to this state conduct.

The alleged conduct was not so egregious that it would outweigh society’s interest in having a final decision on the merits. Failure by the Crown to allow the complainant to testify on September 20, 2017 [ 83 ] The defence submitted that the Crown obstructed the complainant by not allowing her to take the stand on September 20, 2017. The defence argued that Ms. Lafond ought to have been allowed to testify again when she came to court, while her desire to recant was fresh. According to the defence, Ms.

Lafond’s request to talk to the judge to change her testimony ought to have been taken seriously by the Crown prosecutor and a statement ought to have been taken by the police at that time rather than many months later. [ 84 ] Instead, the Crown undertook to investigate the matter further, which was reasonable in the circumstances. The Crown also subpoenaed the complainant to make her available on the adjourned trial date of May 2, 2018 and again when the trial continued on July 17, 2018, at which time she was cross-examined by defence counsel.

Any prejudice to the accused or impact on the justice system, by failing to call Ms. Lafond on September 20, 2017, was not ongoing but rather was remedied on July 17, 2018. Failure by the police to diligently investigate [ 85 ] Defence counsel argued that the Crown did not diligently investigate Ms. Lafond’s purported recant on September 20, 2017 in a timely way. [ 86 ] The defence submitted that the Crown and police’s failure to interview Ms.

Lafond in April 2017 and again on September 20, 2017, amounted to destruction of evidence due to the passage of time in oppressive circumstances. [ 87 ] It is not clear how evidence could have been lost when a recorded statement was taken from Ms. Lafond shortly after the alleged incident on March 31, 2017. Another was taken by Detective Maloney in April 2018. [ 88 ] The delay in taking the statement may have had an impact on Ms. Lafond ’ s resolve, in the moment, to recant. However, that does not necessarily result in prejudice or unfairness to the accused.

The right to a fair trial is not a right to the most favourable trial for the accused. Ultimately, a second statement was taken and Ms. Lafond testified again. [ 89 ] Furthermore, delay in taking the complainant’s statement does not undermine the integrity of the judicial process. Rather, it enhances it, by allowing the police to investigate properly. This state conduct would not warrant the granting of a stay of proceedings. Late disclosure of complainant ’ s September 20, 2017 attempted recantation

[ 90 ] The defence submitted that Mr. Paskimin was unable to make full answer and defence because disclosure issues arose midtrial, in particular with regard to the events of September 20, 2017. The defence rightly complained that the Crown did not make available evidence of the September 20, 2017 recantation until some time in February 2018. The Crown mistakenly believed Mr. Paskimin’s previous counsel would have informed his current counsel.

Further disclosure regarding the investigation was provided by the Crown to the defence on April 23, 2018 and April 27, 2018. [ 91 ] The prejudice to the accused was addressed during the trial when the Court granted an adjournment on February 26, 2018 and again on May 2, 2018 to allow the defence sufficient time to review the disclosure. Any prejudice to the fairness of the accused’s trial or integrity of the justice system was remedied by the adjournments.

Trial Fairness [ 92 ] One further issue was raised by defence counsel concerning trial fairness, which perhaps falls outside the categories of “abuse of process”. Defence counsel submitted that she ought to have been able to cross-examine the complainant on all matters when Ms. Lafond was recalled to the stand on July 17, 2018, rather than being limited to the circumstances surrounding Ms. Lafond’s actions on September 20, 2017. [ 93 ] The complainant was fully cross-examined by Mr. Paskimin’s defence counsel on the first day of trial, July 20, 2017.

At that time, defence counsel cross-examined the complainant with regard to her first attempted recantation in April 2017. There was no suggestion that Mr. Paskimin’s counsel at the time was not competent and neither do I consider that to have been the case.

The only reason for allowing the complainant to be recalled was with respect to her apparent desire to recant on September 20, 2017. [ 94 ] While there is no doubt that the complainant’s testimony and her credibility is central to the outcome of this trial, there was no basis for allowing the defence to subject the complainant to cross-examination on matters that had already been addressed at length when she first testified.

The only remaining issue was to allow the defence to explore under oath the complainant’s conduct on September 20, 2017 and the reasons for it. [ 95 ] In conclusion, I have found there was no abuse of process or trial unfairness in this case. Mr. Paskimin’s right to a fair trial was not prejudiced and the circumstances did not affect the integrity of the justice system. Most of the impugned state conduct was remedied by recalling Ms. Lafond to the stand and by allowing adjournments to the defence. The Crown’s decision to investigate Ms.

Lafond’s purported recantation on September 20, 2017 contributed to the integrity of the justice system. Balancing the state conduct, most of which was redressed, against society’s interest in having a trial to determine whether Mr. Paskimin committed an assault causing his domestic partner bodily harm, I find this case is not among the clearest of cases where the exceptional remedy of a stay of proceedings is warranted. Unreasonable Delay [ 96 ] Defence counsel stated during closing argument that she had not brought a delay application, yet she submitted Mr. Paskimin was not tried within a reasonable time.

The Charter notice referred to s. 11(b). I will therefore treat this aspect of his Charter application as raising the issue of trial delay. [ 97 ] The presumptive ceiling from charge to the end of a trial in Provincial Court has been set by the Supreme Court of Canada at 18 months. If the total delay from the charge to the end of trial, minus defence delay, exceeds the ceiling, the delay is presumptively unreasonable and the Crown must establish the presence of exceptional circumstances.

If the total delay falls below the presumptive ceiling, the onus is on the defence to show the delay is unreasonable by establishing it took meaningful steps to expedite the proceedings and the case took markedly longer than it reasonably should have: Jordan , paras 46-48 . [ 98 ] The Ontario Court of Appeal in Coulter summarized the application of the Jordan framework as follows:

[ 98 ] The Ontario Court of Appeal in Coulter summarized the application of the Jordan framework as follows: [34] Calculate the total delay , which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ). [35] Subtract defence delay from the total delay, which results in the “ Net Delay ” ( Jordan , at para. 66 ). [36] Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.

To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47 ). If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47 ).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ). [38] Subtract delay caused by discrete events from the Net Delay (leaving the “ Remaining Delay ” ) for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ). [40] If the Remaining Delay falls below the presumptive ceiling , the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ). [emphasis in original] [ 99 ] In the present case, the total delay from the charge on April 1, 2017 to today’s date is approximately 17.5 months, just below the presumptive ceiling.

It is uncertain whether the anticipated end of the trial will be outside of the presumptive ceiling taking into account Mr. Paskimin’s sentencing. [ 100 ] The Court must subtract any non-legitimate delay caused by the defence. There is no indication from the endorsements that the defence waived delay at any time. Adjournment requests appeared to be necessary and reasonable to allow the defence to receive and review Crown disclosure. Mr. Paskimin discharged his Legal Aid lawyer and his first court-appointed lawyer withdrew. However, the trial dates were not affected by those changes in counsel. Mr.

Paskimin’s current counsel advised she was prepared to proceed on the previously scheduled dates of February 26, 2018 and March 2, 2018. It was only because of late Crown disclosure that she was unable to go ahead on those dates. I conclude that no delay was caused by the defence. Therefore, the “net delay” in this case remains at 17.5 months, which is below the presumptive ceiling. Exceptional circumstances [ 101 ] Because it is unclear when sentencing will occur, I will go on to consider whether there were exceptional circumstances in this case. Ms.

Lafond’s expressed desire to recant on September 20, 2017 was a discrete event contributing to the delay. It was an unforeseeable and unavoidable development in the trial. She had testified previously and was not expected to be in court again. [ 102 ] Although it was later suggested by the defence that Ms. Lafond ought to have been allowed to take the stand at that time, the Crown, appropriately in my opinion, sought an adjournment to investigate the complainant’s out-of-court assertions. [ 103 ] A complainant who unexpectedly recants may cause an unavoidable delay: Jordan , para 73 .

Delay caused by a discrete exceptional event must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. However, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted: Jordan , para 75 .

[ 104 ] I am satisfied that some delay was necessary and reasonable to allow the police to investigate the potential recantation. The onus is on the Crown to show that it took reasonable available steps to address the problem and mitigate the delay before it exceeded the ceiling: Jordan , para 70 . [ 105 ] Other than that a further statement was taken from Ms.

Lafond in April 2018, the Court has little or no evidence with respect to the nature of the investigation or the reason for the approximately seven month delay for that investigation to occur (September 20, 2017 to April 2018). [ 106 ] On February 22, 2018, the Crown advised it was still investigating the matter. It was not made clear to the Court why the Crown was not ready to continue with the trial on February 26, 2018, as anticipated, other than the investigation was complicated and incomplete. At that point, the Crown had only recently informed Mr. Paskimin’s counsel of the events of September 20, 2017.

The defence was caught by surprise. Both Crown and defence sought an adjournment, which was granted on February 26, 2018. The trial was adjourned to May 2 and 3, 2018. [ 107 ] On September 20, 2017, the Crown expected to be in a position to continue the trial on February 26, 2018. Further, the Crown ought to have ensured that the defence was aware of the investigation into the September 20, 2017 events. I find that the Crown could have mitigated the delay after February 26, 2018 and therefore delay after that date was unreasonable.

Accordingly, I find that a reasonable time within which to have completed the investigation was between September 20, 2017 and February 26, 2018 or five months, which will be subtracted from the net delay (17.5 months – 5 months = 12 months). [ 108 ] The remaining delay is below the presumptive ceiling. At this stage, the onus shifts to the defence to show that the delay was unreasonable by demonstrating that it took meaningful steps evincing a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have: Jordan , para 82 .

Meaningful steps [ 109 ] I must consider what the defence did and could have done to have the trial heard more quickly: Jordan , para 84 . The defence is required to act reasonably but not perfectly. [ 110 ] Mr. Paskimin was represented by Legal Aid duty counsel when he first appeared in court on April 3, 2017. A three-day fitness assessment was completed by Dr. Lowery. On April 24, 2017, a not guilty plea was entered and a trial date of July 20, 2017 was set. Mr. Paskimin was represented by a Legal Aid lawyer on the first day of trial. [ 111 ] On July 25, 2017, Mr.

Paskimin discharged his Legal Aid lawyer and a trial continuation was scheduled for September 20, 2017 and October 2, 2017. On August 30, 2017, Mr. Paskimin was granted court-appointed counsel who appeared with him on September 20, 2017. Because of what occurred at the courthouse that day, the trial did not proceed and new trial dates were scheduled for February 26, 2018 and March 2, 2018 for continuation. [ 112 ] On November 23, 2017, Mr. Paskimin’s counsel was granted leave to withdraw and Ms. Hodgson-Smith, his current counsel, advised the Court that she had been appointed as counsel for Mr.

Paskimin. [ 113 ] On February 22, 2018, an adjournment of the trial was sought due to late disclosure by the Crown and was granted on February 26, 2018. The trial was then scheduled for continuation on May 2 and May 3, 2018. [ 114 ] On May 2, 2018, defence counsel advised the Court that she had received further disclosure on April 23, 2018 and April 27, 2018, which did not allow her sufficient time to review it and she was therefore not ready to proceed with the trial. A mistrial application was heard and dismissed at that time as well.

The trial was adjourned to July 17, 2018 and July 20, 2018 and proceeded on those dates.

The matter was adjourned to this date for decision with consent of counsel. [ 115 ] I am satisfied that in these circumstances, the defence acted reasonably. An early plea was entered. The discharge of counsel and appointment of new counsel did not, of itself, result in delay and adjournment requests were legitimate. Markedly longer trial [ 116 ] The defence must also show that the time the case has taken markedly exceeds the reasonable time requirements of the case. This was not a complex case. The Crown called four witnesses and the defence called two witnesses.

The original trial sheet shows that the Crown and defence estimated one-half day would be required for this trial. It is likely that had adequate time been scheduled, the trial would have finished on July 20, 2017. Alternatively, had Ms. Lafond not indicated a desire to change her evidence, the trial likely would have continued and been completed on September 20, 2017, which would not have been unreasonable. Instead, the evidence was completed exactly one year after the first witness had testified. [ 117 ] I have found it was necessary for the Crown to conduct an investigation of Ms.

Lafond’s desire to recant before considering its position and that five months was a reasonable time for that purpose. No evidence was presented by the Crown to explain or by the defence to question the length of the investigation after September 20, 2017, other than representations by the Crown that the investigation would be lengthy and complicated. [ 118 ] Although there is no indication on the record that the defence sought earlier trial dates or shorter adjournments, I am satisfied the defence acted reasonably and did what it could in the circumstances to ensure that the trial was heard more quickly.

There is no question that this case took longer than expected. However, given the exceptional circumstances, I am satisfied that it did not take markedly longer than it reasonably should have. Therefore, I find the defence has not discharged its onus. [ 119 ] I note that the Court in Jordan expected stays beneath the ceiling to be granted only in clear cases: para 83. I do not find this to be a clear case. [ 120 ] In all of the circumstances of this particular case, I conclude that the delay was not unreasonable. 2.

Should the Court declare a mistrial? [ 121 ] The defence raised many of the same Charter and trial fairness issues in support of her request for the declaration of a mistrial. [ 122 ] In Kaiswatum , Justice Danyliuk at para 33 set out the criteria to be considered when determining whether to declare a mistrial as follows: (

a) There is no ‘ one size fits all ’ test. The particular circumstances of each case must be carefully assessed by the trial judge. (

b) An accused is entitled to a fair trial, not a perfect trial: R v Khan , 2001 SCC 86 at para 72 , [2001] 3 SCR 823 . (

c) In Khan at para 73 , the question is asked as to whether ‘ a well-informed, reasonable person considering the whole of the circumstances...have perceived the trial as being unfair or as appearing to be so. ’ (

d) Does the precipitating event relate to a central or peripheral issue? Could it affect the verdict? (

e) Is there any defence or Crown conduct that is a factor? (

f) What corrective measures are available that can adequately remedy the problem? Would a mid-trial instruction assist? (g) “ What matters most is the effect of the irregularity on the fairness of the trial and the appearance of fairness ” : Khan at para 84 .

(

h) A mistrial should only be granted as a last resort, in the clearest of cases, and where no other remedy is available: R v Toutissani , 2007 ONCA 773 at para 9 . [ 123 ] The defence asked the Court to declare a mistrial on May 2, 2018, but I declined to grant the application. I determined that there were appropriate remedies to address the defence concerns. Adjournments had been allowed on February 26, 2018 and May 2, 2018, to allow the defence sufficient time to review recent disclosure.

On both occasions, I also directed the Crown to recall the complainant so that she could be cross-examined with regard to her actions on September 20, 2017 and the reasons for them. I held that these steps would adequately address the defence concerns, would ensure the accused had the ability to make full answer, and would ensure that his defence would not be impaired. Accordingly, this case was not among the clearest of cases where no other remedy was available. Declaring a mistrial and ordering a new trial would not have been appropriate. My opinion remains the same now at the conclusion of the trial.

I am satisfied that a well-informed, reasonable person, considering the whole of the circumstances, would perceive the trial as being fair and appearing to be fair. [ 124 ] This was not a perfect trial. However, every effort was made to ensure that it was a fair trial. Two separate counsel were appointed by the Court for Mr. Paskimin. Unanticipated circumstances arose mid-trial when the complainant returned to the Court expressing a desire to change her evidence. It was appropriate for the Crown to investigate further.

The Court granted adjournments to allow the investigation and subsequent disclosure to occur and to allow time for the defence to review that disclosure and prepare for trial. A statement was taken from the complainant on two occasions. The Crown recalled the complainant so defence counsel could cross-examine her. The trial took longer than expected to finish, but not markedly so, and did not exceed the presumptive ceiling. Mr. Paskimin has failed to establish on a balance of probabilities that his Charter rights were violated.

In these circumstances, a stay of proceedings is not warranted and a declaration of mistrial is not appropriate. 3. Has the Crown proven beyond a reasonable doubt that Mr. Paskimin assaulted Ms. Lafond, causing her bodily harm? [ 125 ] Credibility is important in this case. Because Mr. Paskimin testified, I am mindful of the principles and analytical framework set out in the decision of W.(D.) . If I believe the accused, I must acquit. If I do not believe the accused, but if I am left in reasonable doubt by his testimony, I must acquit.

If I do not believe the accused and am not left in doubt by his evidence, I must consider whether I am convinced of Mr. Paskimin ’ s guilt beyond a reasonable doubt based on the whole of the evidence that I do accept: W.(D.) , page 758. [ 126 ] In applying that framework, I must consider Mr. Paskimin’s testimony in light of all of the evidence when assessing his credibility and in determining whether the Crown has proven the offence beyond a reasonable doubt. I recognize the burden is on the Crown to prove that the evidence as a whole establishes Mr. Paskimin’s guilt beyond a reasonable doubt.

Where there are competing versions of events between the accused and other witnesses, I must not engage in a credibility contest. [ 127 ] Mr. Paskimin testified with respect to his prior criminal record. However, evidence of his record cannot be used to decide his guilt or propensity for committing criminal acts. It can only be used to evaluate his testimonial reliability: Whitman , para 66 . [ 128 ] Certain aspects of Mr. Paskimin’s testimony are confirmed by other witnesses. Mr. Paskimin’s testimony with regard to the events leading up to the alleged assaults is corroborated to some extent by Ms. Lafond.

She confirmed they had been consuming alcohol the night before and on the day of the alleged assault. She confirmed Mr. Paskimin’s testimony regarding their general activities and places they went. She confirmed they quarrelled and left Ms. Rabbitskin’s residence. She confirmed that from there, they walked the streets and alleys of that neighbourhood together, arguing and fighting. [ 129 ] Mr. Paskimin admitted that he and the complainant engaged in a fight. He acknowledged holding her by her wrists but said he did so to prevent her from hitting him.

He acknowledged dragging her by her ponytail but said he did so to take control in an effort to care for her because she was intoxicated and he did not want harm to come to her. [ 130 ] His testimony that he and Ms. Lafond were near Larson House on the day in question was confirmed by Ms. Hurd. I am satisfied that the individuals she observed near Larson House were the accused and the complainant. Although she did not know the individuals, she was within close proximity to them.

[ 131 ] Ms. Hurd observed that the male and the female appeared to be intoxicated and were fighting. She saw the male hold the female’s wrists. He grabbed the female’s ponytail and twisted it clockwise, bending her neck back, so her face was pointing upward, dragging her in that position for approximately 30 seconds. [ 132 ] Ms. Hurd’s

interpretation of what she saw differed from Mr. Paskimin’s explanation. Mr. Paskimin described his actions as defensive and done to protect Ms. Lafond. However, Ms. Hurd’s account made it clear the male was in control and the aggressor. She described the female as distressed, crying for help and asking that someone call the police. Ms. Hurd was an independent and reliable witness. I accept her testimony over that of the accused in this regard. [ 133 ] Mr. Paskimin denied biting and choking Ms. Lafond or causing the injuries shown in the photo evidence. However, Ellen Morin testified that when she took Ms.

Lafond from Mr. Paskimin’s apartment, she observed bruises and what appeared to be bite marks on the palm of Ms. Lafond’s hand and arm. Once at Ms. Lafond’s grandma’s home, the police were called and Cst. Janson responded. [ 134 ] Cst. Janson observed what appeared to be bite marks on Ms. Lafond’s hands, which were swollen, so that she was unable to write. She testified Ms. Lafond’s lip was cut and her chin was swelling. [ 135 ] Photographs of the injuries (exhibit P-1) were taken on March 31, 2017 shortly after the alleged assaults and confirm the observations of Ms. Morin and Cst. Janson.

They show that the skin on Ms. Lafond’s face, left shoulder and hands was pierced. Her forehead, chin and jaw were bruised. Her lower lip was cut. Her hands were cut, bruised and swollen. If choking occurred, it did not appear to leave marks on Ms. Lafond’s neck that could be seen in the photographs. [ 136 ] The injuries would have been readily apparent to Mr. Paskimin, as they had been to Ms. Morin and Cst. Janson. [ 137 ] Mr. Paskimin testified that when he met Ms. Lafond on the morning of March 31, 2017 she had no injuries. He stated she had no marks on her when they left Ms. Rabbitskin’s home.

When shown the photographs in court, he said that Ms. Lafond did not have those injuries when he last saw her. Yet, she was with Mr. Paskimin continuously throughout the morning until Ellen Morin picked her up from Mr. Paskimin’s place. Ms. Morin observed the marks immediately. [ 138 ] During her initial testimony, Ms. Lafond denied defence counsel’s suggestion that the injuries were caused by her cousin Eric Lafond. Mr. Lafond stayed at Ms. Lafond’s place on the night of March 30, 2017. However, Mr. Paskimin testified he did not observe any marks on Ms. Lafond’s body on the morning of March 31, 2017.

Eric Lafond was with Mr. Paskimin and Ms. Lafond during the earlier part of the morning of March 31, 2017 but there is no evidence of a fight between him and Ms. Lafond. In fact, Mr. Paskimin described Eric Lafond and Ms. Lafond as “alive and well” when he arrived at Ms. Lafond’s residence. Further, it is clear from the photographs that the cuts, particularly to the lip, were fresh. [ 139 ] The evidence is overwhelming that Ms. Lafond was injured when she left Mr. Paskimin’s apartment with Ms. Morin and I reject Mr. Paskimin’s testimony on that point. [ 140 ] Mr. Paskimin testified that after their fight Ms.

Lafond went willingly to his apartment. It may have appeared that way to Mr. Paskimin; Ms. Lafond testified that she eventually gave in to Mr. Paskimin’s insistence to avoid further conflict. [ 141 ] Mr. Paskimin testified that Ms. Lafond was happy when she left his apartment with Ms. Morin. However, Ms. Morin testified that Ms. Lafond looked scared and frantic. Cst. Janson described Ms. Lafond as upset, crying, shaking and fearful when she arrived at the grandma’s home. I accept that Ms.

Lafond was in considerable distress at that time. [ 142 ] The Court must also take into account that the complainant twice attempted to recant. Ms. Lafond’s initial statement to the police on March 31, 2017 implicated Mr. Paskimin as having assaulted her. In the week following the alleged assaults, she attended at

the police station where she attempted to deliver a written statement changing her account of what had occurred. [ 143 ] In her testimony, Ms. Lafond explained that she “was not thinking” at the time she provided the written recantation. She stated the accused repeatedly called her from the correctional centre and her children had just been apprehended. She and the accused had been together for two years and she needed him to help her get through everything. She said that she recanted so they could be together. Ms. Lafond also testified that she and Mr. Paskimin spoke on the telephone about Ms.

Lafond writing a letter falsely stating that her original statement to the police was a lie. [ 144 ] She testified that she and Mr. Paskimin had planned everything, including what she would say and what she would write down in her written statement. They planned for her to come to court and say that she had lied about everything on July 20, 2017. [ 145 ] Ms. Lafond explained that when she returned to court on September 20, 2017, she was with her mother-in-law, her sister-in-law, her cousin and her daughter.

She was feeling pressured from the accused and his family and intended to tell the Court that her original statement and testimony on July 20, 2017 was a lie. However, she was firm in her testimony on July 17, 2018 that her previous testimony was in fact truthful. She was not shaken in that respect during cross-examination. She reaffirmed that the assaults happened as she had originally testified. [ 146 ] Sheena Paskimin, the accused’s sister, testified that she did not discuss these proceedings with Ms. Lafond or attempt to influence Ms. Lafond.

The Facebook messages do not indicate any overt pressure but do refer to losing one brother and the possibility of losing her remaining brother, the accused. I do not consider this statement to be evidence of influence by Sheena Paskimin. [ 147 ] The Facebook messages are of limited evidential value, however. The Court was told that all of Ms. Paskimin’s Facebook messages were sent to defence counsel, who selected those presented into evidence. Further, Ms. Paskimin is one of four living siblings. Ms. Paskimin’s evidence is not conclusive as to whether other family members may have attempted to influence Ms.

Lafond. I note that Ms. Lafond was accompanied by her mother-in-law, sister-in-law and others when she returned to court on September 20, 2017. [ 148 ] Although Ms. Lafond may have attempted to recant outside of the courtroom, when in Court under oath Ms. Lafond’s testimony on both occasions was consistent that the assaults had occurred. On July 17, 2018, she confirmed that her evidence on July 20, 2017 was true. Ms. Hurd’s account of what she saw lends credence to Ms. Lafond’s testimony on July 17, 2018. [ 149 ] Mr.

Paskimin minimized his actions toward the complainant and the extent of the force that he applied. His testimony was self- serving. He characterized his contact with Ms. Lafond as defensive or protective, which was inconsistent with the observations of an uninterested reliable witness Ms. Hurd. He stated Ms. Lafond was happy when she left his apartment, even though Ms. Morin and Cst. Janson confirmed that she was distraught. [ 150 ] The evidence that Ms. Lafond had recently sustained injuries was overwhelming. Mr. Paskimin denied he caused those injuries, even though he admits fighting with Ms.

Lafond and was the only individual with the opportunity to cause the injuries to her. Their altercation took place over an extended period of time, making it possible to inflict several injuries. [ 151 ] On the totality of the evidence, I do not accept Mr. Paskimin’s denial that he caused the injuries. The only reasonable inference is that the injuries were caused by Mr. Paskimin during his fight with Ms. Lafond on the morning of March 31, 2017. I am satisfied that Mr. Paskimin assaulted Ms.

Lafond, thereby causing the injuries described by the witnesses and illustrated in the photographs. [ 152 ] “Bodily harm” includes any hurt or injury that interferes with the health or comfort of the person and is more than merely transient or trifling in nature: Criminal Code , s 2. It is clear that Ms. Lafond ’ s injuries were more than trifling and that they interfered with her comfort. For example, she was unable to provide a written statement to the police due to the swelling in her hands. [ 153 ] Following the events of March 31, 2017, Ms. Lafond testified that she had a mental breakdown.

She was tired and exhausted. Later that same week, she received medical attention because she thought her right hand had been broken. It turned out not to have been

broken but there was inflammation and swelling which prevented her from being able to move her hand for three weeks. She was prescribed medication for the inflammation and swelling. The marks and bruises on her face remained for approximately one month. Conclusion [ 154 ] In all of the circumstances, I do not believe Mr. Paskimin’s account of what occurred. Neither am I left in doubt by his testimony nor by any other evidence in these proceedings which I accept. On the totality of the evidence, the Crown has proven beyond a reasonable doubt that Mr. Paskimin assaulted Ms.

Lafond causing her bodily harm on March 31, 2017. I therefore find him guilty of count 2. [ 155 ] At the time of the offence, Mr. Paskimin was bound by a Peace Bond pursuant to s. 810.2 of the Criminal Code . It is clear on the evidence that Mr. Paskimin breached a number of his conditions on March 31, 2017, including that he “ keep the peace and be of good behavior ” . I therefore find him guilty of count 1. [ 156 ] Based upon the Crown’s admissions at the conclusion of the evidence, I find Mr. Paskimin not guilty of count 3. ____________________ D.C. Scott, J