Her Majesty the Queen - v. -, 2011 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 015 Date: January 17, 2011 Information: 24364651 , 24364650 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Karyn Mae Fayant Appearing: Mr. Rob Parker For the Crown Mr. Mervin Shaw, Q.C. For the Accused DECISION D.J. KOVATCH , J Background [ 1 ] The accused, Karyn Mae Fayant is charged with mischief under $5,000.00 by smashing a window, and with an aggravated assault upon Joe Cwynar.

The major issue for determination is whether the accused can be convicted of the charge of aggravated assault, or whether she should be convicted of one of the lesser and included offences. Evidence

[ 2 ] The complainant, Joe Cwynar, testified that he and the accused have been in an on and off relationship since March 2004. For the last one and a half years, he has been residing in Mossbank, Saskatchewan. In April, 2010, he and the complainant met up and were house sitting at Fort Qu’appelle, Saskatchewan. When they concluded house sitting, they decided that they would spend a few days together at the complainant’s home in Mossbank. [ 3 ] On the way to Mossbank, the accused purchased some alcohol. They arrived at the complainant’s home in the neighbourhood of 6:30 to 7:00 p.m. According to Mr.

Cwynar, the accused then began drinking. According to him, the accused became quite drunk and suggested that the two of them go for a walk. They did go outside, and then got into an argument because the complainant believed he had lost his keys. They then returned to the home. Once inside the home, the argument escalated. [ 4 ] According to Mr. Cwynar, the accused threw some remote controls and smashed a couple of his items. The accused then picked up a plastic candle holder. This plastic candle holder was entered as an exhibit. It is approximately eighteen to twenty inches long and made of out of hard plastic.

As it is made out of plastic, it is not heavy but is nevertheless quite a hard object. It also has a number of hard corners and edges. [ 5 ] Mr. Cwynar testified that he touched the accused’s back, attempting to calm her down. At this time Ms. Fayant spun around very quickly while at the same time holding on to and swinging around with the candle holder. She struck him very hard with the candle holder in the facial area and near his right eye. His glasses were knocked flying. He instantly began to bleed.

He went to the bathroom and grabbed a towel and then to his bedroom to attempt to lay down. [ 6 ] According to Mr. Cwynar, very shortly thereafter the accused left the home. [ 7 ] He said that he has had a history of eye problems and believed this injury to his eye was serious. He called 911. EMS was alerted, who in turn called the RCMP. Mr. Cwynar was taken to hospital by ambulance. Just before he left by ambulance, he spoke briefly to the RCMP. [ 8 ] Cst. Harris of the RCMP testified that after speaking to Mr. Cwynar, they entered and secured his home. Based upon the information that they had received from Mr.

Cwynar, they were looking for Ms. Fayant. However, she had already left the home. Inside the home, they seized a plastic candle holder that was on the floor. It obviously had blood on it. In addition there was other blood on the floor and other signs of a struggle or a fight. [ 9 ] Cst. Harris and Cst. O’Neill, who was assisting him, decided that they would go to Moose Jaw to interview Mr. Cwynar, and obtain further information. However, while en route, they received information that Ms. Fayant was back at Mr. Cwynar’s house. When they arrived at Mr. Cwynar’s house, they found Ms.

Fayant standing outside near a broken window. She smelled of alcohol and was obviously quite intoxicated. They placed her under arrest. They later took her to Assiniboia RCMP Detachment, where she was housed in cells overnight. The following morning, they obtained a warned statement from Ms. Fayant. Defence counsel admitted that this warned statement was voluntarily obtained and was properly admissible in evidence. [ 10 ] Ms. Fayant testified and of course her warned statement was admitted. Her evidence in Court and her warned statement are quite consistent with one another.

She agreed that she bought alcohol en route to Mossbank, and once there began drinking. She agreed that she and Mr. Cwynar then began to argue. She said that Mr. Cwynar was not respecting her and she became resentful because of that. She wanted to go home and he wouldn’t take her home. She said she felt trapped. She stated that the accused grabbed her from behind and she turned around very quickly and gave him a backhand. She knocked his glasses off his face and they fell to the floor.

She testified that she then saw blood, became very panicky, and left. [ 11 ] On numerous occasions in the warned statement and in her evidence, Ms. Fayant said she didn’t hit Mr. Cwynar with the candle holder. However, both her warned statement and her evidence are punctuated by the statement: “I don’t remember.” In addition, many of her statements denying that she struck Mr. Cwynar with the candle holder are “rather qualified” denials. For example, in the warned statement she makes the following statements:

Q. Is there a chance you could have hit him with something because, do you remember, more than just your hand? A. No, I don’t remember holding anything... I don’t know what I could have hit him with. Maybe a glass but I don’t think so. I’m pretty sure I just, just backhanded him... I don’t remember hitting him with anything... I know and that’s as far as I can remember. I don’t remember hitting him with anything. [12] In her sworn testimony, Ms. Fayant said she guessed she hit him with her fist. Later, she agreed her recollection wasn’t verygood. She then stated it wasn’t in her character to hurt Mr. Cwynar.

Further, she has strong feelings for him. She said she didn’t wantto hurt him. Analysis [13] I begin by quickly disposing of the mischief charge. According to my notes, Mr. Cwynar did not testify that the window wasnot broken prior to that evening. Ms. Fayant did not say that she broke the window. Cst. Harris did not testify that he saw the accusedbreak the window. The officer testified that he saw Ms. Fayant outside the house and near the broken window. It appeared to him thatshe was about to climb on the barbeque and go through the broken window.

There is circumstantial evidence that she broke the window,upon which I would say she probably broke the window. However, in my view, the evidence falls short of proof beyond a reasonabledoubt. On this basis I would find her not guilty of the charge of mischief. [14] With respect to the charge of aggravated assault, the inescapable conclusion is that Ms. Fayant struck Mr. Cwynar in thefacial area with the candle holder. Mr. Cwynar testified that is what happened. The accused was very qualified in her denial of that. The evidence is that only Ms. Cwynar and Ms. Fayant were present in the house.

There is no suggestion that Mr. Cwynar inflicted theseinjuries upon himself. Ms. Fayant testified that she gave him a backhand. This is simply not believable. In addition to Mr. Cwynar’sevidence as to how the injury occurred, he also testified regarding his injuries, and pictures were taken of him later that evening andagain some six weeks after the incident. These pictures clearly establish that there was significant injury to Mr. Cwynar’s eye area andsignificant bruising following this injury. It is simply not believable that these kind of injuries could have been inflicted by a singlebackhanded blow.

I am compelled to conclude that the injuries were inflicted by a blow from the candle holder. Is Ms. Fayant Guilty of Aggravated Assault or One of the Lesser Included Offences? [15] With respect to this issue, Defence counsel, Mr. Shaw, argues that the Crown has not proved the requisite intent to sustainconvictions under s. 267 or s. 268 of the Criminal Code. [16] As far back as the case of R. v. George, (SCC), [1960] S.C.R. 871, the Supreme Court of Canadadifferentiated between offences of specific intent and general intent.

The Court concluded that to convict for a charge of commonassault, the Crown need only prove that the accused intended to apply physical force to another person. [17] I believe this principle is still good law today. It has, from time to time, been referred to with approval by our Courts. See forexample R. v. Lepage (1989), (SK KB), 74 C.R. (3d) 368 (Sask QB), and R. v. Burden (1981), (BCCA), 64 C.C.C. (2d) 68 (B.C.C.A.). [18] In the case at bar, it is readily apparent that the accused applied some force to Mr.

Cwynar and as a result, she must at least beconvicted of common assault contrary to s. 266 of the Criminal Code. [19] In the case of R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944, the Court spoke of the intent required for variousassault provisions. At paragraphs thirty-five and thirty-seven, the Court made the following statements:

In many offences, such as assault or dangerous driving, the offence is made out regardless of the consequences of the act but theconsequences can be used to aggravate liability for the offence. For example, both assault and assault causing bodily harm haveidentical mens rea requirements and the element of causing bodily harm is merely used to classify the offence. No principle offundamental justice prevents Parliament from treating crimes with certain consequences as more serious than crimes which lack thoseconsequences...

Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable todistinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.(emphasisadded) [20] On the basis of these passages, I conclude that the mens rea or criminal intent required for common assault under s. 266 andassault causing bodily harm under s. 267 is identical.

All that is required is an intent to apply force. The distinction between these twosections is the consequence of bodily harm. [21] In this case, it is very apparent that by the commission of the assault that Mr. Cwynar suffered bodily harm. As a result, andat a minimum, the Crown has established that Ms. Fayant must be convicted of assault causing bodily harm. [22] In the DeSousa case and in the case of R. v. Creighton, (SCC), [1993] 3 S.C.R. 3, the Court addressed theissue of an unlawful act causing bodily harm contrary to s. 269 of the Criminal Code and an unlawful act resulting in a charge ofmanslaughter.

The Court stated that in order to sustain convictions under these sections, there must be an unlawful act and that the actmust be an objectively dangerous act. [23] In the case of R. v. Godin, (SCC), [1994] 2 S.C.R. 484, the Court adopted a very similar position with respectto aggravated assault under s. 268 of the Code. The Court stated briefly as follows: The mens rea required for s. 268(1) of the Criminal Code, is objective foresight of bodily harm. It is not necessary that there be an intentto wound or maim or disfigure. The

section pertains to an assault that has the consequences of wounding, maiming or disfiguring. Thisresult flows from the decisions of the Court in R. v. DeSousa and R. v. Creighton. [24] In this case, I’ve already concluded that Ms. Fayant intentionally struct Mr. Cwynar in the face with a hard plastic object. Inmy view, when an individual intentionally strikes another in the facial area with a hard plastic object, it is objectively foreseeable thatwounding, maiming or disfiguring of the victim may result. As a result, I must conclude that Ms.

Fayant is guilty of the charge ofaggravated assault. [25] Dated at Moose Jaw, Saskatchewan, this 17th day of January, 2011. ____________________________________________ D.J. Kovatch, J