R. v. Schultz, 2014 ONCJ 9

ONTARIO COURT OF JUSTICE DATE: 2014·09·01 COURT FILE No.: Orangeville Citation: R. v. Schultz , 2014 ONCJ 9 BETWEEN: HER MAJESTY THE QUEEN — AND — GORDON WILFRED SCHULTZ Before Justice Douglas B. Maund Heard on November 4 th and November 18 th , 2013 Reasons for Judgment released on January 9, 2014 Mr. R. Fetterly .......................................................................................... counsel for the Crown Mr.

Kort .................................................... counsel for the defendant Gordon Wilfred Schultz J U D G M E N T Maund, J.: [ 1 ] The Accused before the Court, Gordon Wilfred Schultz stands charged that on the 22 nd day of January, 2013, at the Town of Orangeville he committed an assault upon Lloyd Edwards by use of a weapon, to wit: a backhoe contrary to

Section 267 (

a) of the Criminal Code of Canada . This trial proceeded on November 4 th and November 18 th , 2013 and is before the Court today for Judgment. T H E F A C T S [ 2 ] The complainant in this matter is Lloyd Edwards. At the time of this incident Mr. Edwards operated a dump truck along with his late father, Ted Edwards. With other contractors Mr. Edwards was engaged in the removal of soil and gravel at a location in the Town of Orangeville. The general contractor directing operations was Alto Construction and the accused, Gordon Schultz, was operating an excavator at the scene loading the gravel trucks at the site.

[ 3 ] As the work day began, there was already tension between Mr. Edwards and Gordon Schultz. Mr. Edwards had directed a complaint about Mr. Schultz’ operation of the excavator during loading on the previous day to the Defendant’s employer. Around 7:00 am the gravel truck operated by Lloyd Edwards’ father was being loaded by Mr. Schultz’s excavator. While Mr. Edwards did not see the excavator come into contact with his father’s truck, he did see the truck sway. He then saw pieces of wood on the ground broken off the wooden rail on the truck.

It was obvious to him that the excavator had damaged this wooden rail which is designed to protect the frame of the gravel truck. [ 4 ] After speaking briefly with his father, Mr. Edwards walked towards the excavator. His intention was to bring the damage to his father’s truck to the attention of Mr. Schultz so it could be acknowledged and claimed. Mr. Edwards said he was careful to approach from a direction where he could be seen by the operator. Despite shouting at Mr.

Schultz in an attempt to get his attention, he indicated that the excavator continued to load the gravel truck. [ 5 ] The complainant was initially standing on the ground, near enough to touch the driver’s door of the machine. As Mr. Schultz appeared to be ignoring him, Mr. Edwards opened the door to try to get his attention. From Mr. Edwards account, he believed that Mr. Schultz was aware that he was standing nearby. He heard the Defendant tell him through the door to “fuck off”. According to Mr. Edwards, Mr. Schultz ignored him and continued to operate the machine.

At this point the arm of the bucket was up and the boom was moving. [ 6 ] Mr. Edwards opened the door and yelled at Mr. Schultz. He said that the Defendant looked at him and started screaming profanities. Mr. Edwards was holding onto the safety bar at the edge of the door and the door latch. He identified where he was standing on one of the photographs filed as an exhibit. [ 7 ] The witness indicated that he said words to Mr. Schultz to the effect of “look what you have done to my father’s truck”. At that point he testified that Mr.

Schultz proceeded to punch his hand which was holding onto the bar, in an apparent attempt to break his grip. The machine then began to rotate and Mr. Edwards lost his footing. There was a struggle in the doorway. Mr. Edwards indicated that the Defendant started kicking him on his leg and his ribs which he resisted. He then fell onto the tracks of the machine. He was then fearful for his safety and Mr. Edwards got up and grabbed the railing once again. At this point in the struggle Mr. Edwards said that he was trying to hang onto the excavator which was now in full rotation in a clockwise direction.

He testified that the machine completed four full rotations while he was hanging on to the rail and his feet were flying free of the machine. According to Mr. Edwards, Mr. Schultz was aware he was in this predicament and was looking directly at him while this was happening. [ 8 ] Finally, Mr. Edwards said that he fell off the machine and landed on the ground some distance away. Fortunately Mr. Edwards was not hurt during this altercation and he was pulled away from the excavator by Jim Cuming. As Mr.

Edwards was leaving the area he lost his hat which he says the accused started stabbing with the bucket of the backhoe. Very rashly, he wanted to retrieve his cap but Mr. Cuming persuaded him not to. [ 9 ] On cross-examination, Mr. Edwards explained that he believed the operator of the excavator is required to acknowledge his responsibility for damaging a gravel truck so the matter could be reported to the contractor. That was his reason for confronting Mr. Schultz as he did. He became concerned after being told to “fuck off” by Mr. Schultz that the operator had no intention of acknowledging his responsibility.

He acknowledged that he placed himself in a dangerous situation. According to Mr. Edwards, the Defendant’s hands were operating the controls sticks of the machine when he spoke to him. Mr. Schultz kept operating the controls when he kicked out at his hand and chest area. The witness agreed that he grabbed at the Defendant’s legs while he was kicking him. But Mr. Edwards vehemently denied that during his struggle with Mr. Schultz he grabbed any of the control levers. [ 10 ] James Edward Cuming was also operating a gravel truck at the scene on the day in question.

He knows both the complainant and the Accused through his employment. While Mr. Cuming was waiting in line to be loaded, he saw a man hanging onto the side of an excavator who was being spun around. While he could not tell the number of times the machine rotated, he did observe one entire 360 degree rotation.

[ 11 ] The witness testified that the late Ted Edwards, whose truck was being loaded next to the excavator, was sounding his air horn while the man he identified as Ted Edwards’ son, Lloyd, was being swung around in the air. He made these observations through his passenger side mirror on his truck. He observed Lloyd Edwards holding onto the machine while it was rotating with one hand and the machine was said to be rotating at a fast speed. [ 12 ] By the time Mr. Cuming had left his truck and moved toward the excavator, he saw Lloyd Edwards lying on the ground. He described the complainant as angry.

He discouraged him from going toward the excavator to retrieve his hat. Mr. Cuming added that when he saw Mr. Edwards swinging from the excavator, his feet were out from the machine and almost parallel to the ground. [ 13 ] On cross-examination Mr. Cuming agreed that it would be unsafe to walk up to an excavator while it was in operation.

The best practice for those on a work site would be to not approach until the operator makes visual contact with the person. [ 14 ] Apart from a series of sketches and photographs introduced through the witnesses, that was the case for the Crown. [ 15 ] `The Accused, Gordon Schultz testified on his own behalf in this trial. He is 74 years of age and has been working in the construction business since 1956. Over the last twenty-five years he has operated excavators such as the one involved in this incident. [ 16 ] Mr.

Schultz testified that on January 22, 2013 he was operating an excavator for his employer, Alto Construction. The Defence introduced a sketch of the work scene as well as photographs of a similar excavator and a simulation created by Mr. Schultz to illustrate his evidence. Mr. Schultz indicated that he was working on the floor of the pit early during this shift and he was encountering frozen material. He was not aware that he might have hit the side of Ted Edwards’ truck. In any event, he remembers hearing the sound of a horn and seeing Lloyd Edwards approaching along the driver’s door side of his father’s truck.

He said Mr. Edwards then jumped up onto the track and opened the door to his cab while holding onto the front railing. Mr. Schultz testified that he was continuing to operate the excavator while Mr. Edwards told him about the broken sideboard on the gravel truck and that he wanted him to acknowledge the damage caused. Mr. Schultz told him that as far as he was concerned it was not a problem, but Mr.

Edwards argued that, in the words of the Defendant, it was “a big deal”. [ 17 ] The Accused described and showed on the Defence photographs where he believed Lloyd Edwards was standing during the incident at the doorway of his cab. He said that at one point Mr. Edwards grabbed onto the swing lever shown on Exhibit “A,” page 6. This lever controls the swing function left to right on the excavator in either a clockwise or counter-clockwise direction. The potential speed of the rotation function on the excavator, according to Mr. Schultz, was no faster than walking speed.

In other words, substantially slower than described by the Crown witnesses. [ 18 ] Mr. Schultz testified that at one point Lloyd Edwards lost his balance and pulled the swing lever towards him which caused the machine to start rotating. The Defendant acknowledged that there were swear words exchanged between the two men including the fact that Mr. Schultz told him to “fuck off”. However he denied ever kicking the complainant. During the altercation he said he was trying to grab the pilot control lever which would shut off the machine. However, he was only successful in doing so after a few minutes.

He said that this was because Mr. Edwards leg was pinned against the lever so that Mr. Schultz could not shift it. The Defendant’s evidence was that the excavator made only one revolution before he was able to bring it to a stop. Once he was able to engage the pilot control lever, Mr. Schultz indicated that everything stopped on the machine. The Accused denied that any of his actions were intended to hurt or injure Mr. Edwards during this incident. He said that he was always mindful of his licence and his duty to ensure workplace safety. And during the altercation he heard the truck horn sounding. [ 19 ] When Mr.

Schultz evidence continued on the second day of trial the Defendant indicated that, in the meantime, he had conducted an experiment on a similar excavator with a one hundred pound bag of grain. He said that at a rotation at maximum speed, the bag he had attached to the excavator did not swing out in the fashion described by Mr. Edwards and Mr. Cuming in their evidence. Photos of this second simulation by Mr. Schultz were filed as Exhibit “5”. [ 20 ] On cross-examination Mr. Schultz testified that Lloyd Edwards came around from behind his father’s truck and began yelling at him.

Contrary to his earlier evidence in chief, Mr. Schultz indicated that he never heard the diesel horn from the truck. He was readily aware that Mr. Edwards’ was mad at him when he first saw him. He did not turn off his machine during his altercation with Mr. Edwards. When asked by the Crown Attorney why he did not turn off his excavator, given the proximity of Mr. Edwards, his answer was “why would I?” When asked whether he did not have an obligation to ensure that Mr. Edwards was safe his answer was “Why would I shut off. I was not through loading the truck.” [ 21 ] Mr.

Schultz continued to operate the excavator and swung it around to continue loading. He swung in a clockwise direction

which was away from where the complainant was standing. He then swung the equipment back counter-clockwise in the direction of the truck. It was at this point specifically he remembers that Mr. Edwards jumped up onto the track and opened the door to his cab. Mr. Edwards was holding onto the safety bar with one hand. When asked whether he was mad at Mr. Edwards, Mr. Schultz indicated that he was not. However he was aware that Mr. Edwards was mad at him. [ 22 ] Mr. Schultz testified that while swinging the excavator around, he told Mr. Edwards to get off the machine. He was still aware that Mr.

Edwards was holding onto the machine when he completed swinging it through one revolution. When asked by the Crown whether it was not unsafe to rotate the excavator while Mr. Edwards was holding on, he agreed but he said that it would have been unsafe for him. I took this to mean that Edwards was solely responsible. When the Crown further suggested that Mr. Schultz was responsible for the safety of any person near his machine he said that he was not. Rather it was the responsibility of Mr. Edwards in the circumstances.

The Accused stated that his purpose or intention in swinging the machine around was so the complainant would get off the machine on the side. But he added that what he wanted to do was “to get rid of him”. Nevertheless Mr. Schultz maintained that, despite this statement, Mr. Edwards’ hand or leg was still on the swing lever. So his inference was that the complainant was still interfering with his operation of the machine. [ 23 ] The Defendant acknowledged that when the excavator started in motion, Mr. Edwards lost his balance and this was when Edwards was said to have made contact with the swing lever in the cab.

He indicated that the machine completed only a three-quarter rotation, not the full three hundred and sixty degree rotation he had previously described. It was then that he was able to access the lever to stop the movement. Despite Mr. Schultz’s earlier statement that he had put the machine in rotation in an attempt to “get rid of him”, he subsequently denied that he had put the machine in motion. He maintained it was Edwards’ contact with the lever which caused this. [ 24 ] Finally, Mr. Schultz’ employer, the owner of Alto Construction, Larry Acchione also testified.

He described the procedure for replacement of damage to sideboards on gravel trucks. Mr. Acchione also testified that, based on his experience in the construction industry, it would be a matter of simple common sense that a back hoe operator would stop operation of his machine immediately if a person were to mount the tracks to try to speak with him. He agreed that it would be a dangerous situation to put an excavator into rotation if someone is standing next to the operator’s door. Mr. Acchione confirmed that Mr. Schultz had been trained not to conduct such an unsafe manoeuvre.

A N A L Y S I S [ 25 ] I will first comment upon the evidence of the accused, Mr. Schultz. While he was essentially consistent in his narrative of these events in chief, I found on cross-examination that he was internally inconsistent. While the Defendant continued to maintain that it was Mr. Edwards’ contact with the swing lever which caused what happened, this cannot be reconciled with his evidence that what he wanted to do was to get the complainant off his excavator.

Or, in his words, to “get rid of him.” On all of the evidence, it is clear to the Court that that was his real intention throughout the altercation. [ 26 ] I also found that Mr. Schultz was, at times argumentative and non-responsive in his answers to the Crown. He denied the suggestion that he had any duty of safety toward Mr. Edwards as the operator when the complainant, very unwisely, put himself in harms way. The accused also minimized his obvious anger toward Mr. Edwards during the incident.

His responses, on cross-examination, substantially diminished his credibility. [ 27 ] I do not accept the Defendant’s evidence that he did not strike at Mr. Edwards by kicking at him while Mr. Schultz was operating this machine. On all of the evidence it is clear that the accused never lost control of the excavator during the incident. I do not find that contact by Mr. Edwards with the swing lever caused the machine to swing around. Rather this was caused by Mr. Schultz who wanted to get Edwards off his equipment.

For all of these reasons, I am also not left in reasonable doubt by the evidence of the accused. [ 28 ] Dealing with the evidence for the Crown, I find that the complainant was generally credible and emerged from cross- examination with his version of these events unshaken. While Mr. Edwards, very unwisely, put himself at risk by climbing up on an excavator in operation, he did not initiate an assault upon Mr. Schultz at any time in my view. Rather what followed was his attempt to hang on when the excavator was rotating to try to save himself from serious injury.

It is surprising and very fortunate that the complainant fell from the excavator unharmed.

[ 29 ] Mr. Cuming’s evidence corroborates Edwards’ to the extent that he was able to make observations. He did not see the bucket stabbing at Mr. Edwards’ hat, as described by the complainant. In the confusion of events, as Cuming tried to remove an agitated and angry man from the vicinity of the machine for safety, this is understandable. Mr. Edwards was obviously upset after being thrown from the excavator. He was clearly angry. He may have either misconceived or exaggerated his evidence about the mischief to his hat after he fell.

In my view nothing turns on this evidence. [ 30 ] In argument, the Defence submits that if the Court were to find, as I have, that the excavator was spun around by Mr. Schultz in order to shake Edwards off the machine, then the issue of self defence arises. That is, that by telling the complainant or at least inferring (perhaps by his expletive) to leave, as he did not comply the Defendant was entitled to use reasonable force to expel him from his equipment. [ 31 ] With respect, there is no air of reality to self defence on these facts.

Both of these men were angry and indulged themselves in mutual actions which can only be called immature. But Mr. Schultz did not spin his equipment because he felt threatened. No view of his evidence suggests this. Rather, he was angry with Edwards and feeling insulted and wanted to “get rid of him”. [ 32 ] I find that an assault has been established and proven beyond a reasonable doubt by the Crown. But, the question is, what type of assault and on what basis. [ 33 ] The charge before the Court is assault with a weapon, being the backhoe, contrary to

Section 267 (

a) of the Criminal Code . It was the rotation of the excavator which caused Mr. Edwards to fall. This movement was controlled, directed and, as I have found, intended by the accused. Nevertheless, I do not conclude that Mr. Schultz used this backhoe as a weapon, as that is understood, under

Section 267(

a) of the Criminal Code. The excavator was not, on these facts, specifically manipulated as a weapon to complete an assault. That would be the case, for example, if the operator drove it into someone or directed the bucket of the backhoe into contact with a victim. [ 34 ] The causal connection of the assault on the facts before me is analogous to what might be caused by the wilful spinning of a school yard carousal to dislodge someone, absent consent of course. This assault would be causing the rotation of the equipment in a way that is likely or expected to cause a person to fall off and possibly injury.

That wilful use of indirect force, in the result, is a common assault. No issue of consent or legal justification arises on these facts. [ 35 ] An alternative basis for a finding of common assault is my conclusion that the accused kicked at Mr. Edwards’ body and struck him. [ 36 ] Accordingly, for these reason, there will be a finding of guilt but upon the alternative and included offence of common assault contrary to

Section 266 of the Criminal Code . Released: January 9 th , 2013 __________________________________________ Justice Douglas B. Maund