Her Majesty the Queen - v. -, 2011 SKPC 108

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 108 Date: September 8, 2011 Information: 46743807 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - K.B.R.

Appearing: Tom Macnab For the Crown Tanis Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ JUDGMENT P.S. KOLENICK , J _____________________________________________________________________________

BACKGROUND [ 1 ] The accused is charged that he did, on or about November 29, 2010, at Saskatoon, commit common assault against the complainant contrary to s. 266 of the Criminal Code . The issue which has arisen is whether the evidence of the Crown is sufficiently credible to prove beyond a reasonable doubt that the only physical contact he had on the complainant was for the purpose of defending himself from the alleged aggression of the complainant. Related to that was whether, on the evidence the Crown was able to prove non- consent beyond a reasonable doubt.

Regardless, the accused bears no onus whatsoever in these proceedings. [ 2 ] For roughly two months prior to this alleged matter, the complainant, age 17, had lived in a blended family with her father as well as, the accused and his mother. Their parents also had a baby between them, 10 months old at the time. A disagreement arose between the accused and the female complainant when he had accidentally allowed the baby to slip from his grasp while removing him from the Jolly Jumper. The child had struck the floor, but suffered no injury, and was quickly comforted.

The actions of the accused had been unintentional with no harm to the baby. Despite that, it led to a sharp verbal exchange, as the circumstances between the parties deteriorated, leading to more. EVIDENCE FOR THE CROWN Evidence of the Complainant [ 3 ] The complainant confirmed that she had asked the accused to take the child out of the Jolly Jumper. When the infant ended up on the floor, having slipped from the accused’s grasp, she told the accused he had dropped the baby.

That led to an exchange between them, when she had said to the accused he had dropped the child, to which the accused replied words like “no I didn’t fucking drop him”. When she said again that he had, once more he said “no I didn’t fucking drop him”. The argument started. She went upstairs and entered one of the bedrooms as the dispute continued. As she tried to close the bedroom door, he forced his way into the room. He pushed her down on the floor, with both hands on her chest, causing her to strike her head on either the dresser or the bed and suffering a slight headache. The accused departed from the room.

In due course, the complainant called 9-1-1, and the police attended at the scene. There had been nobody else but the complainant and the accused in the bedroom at the time. [ 4 ] Initially the accused had been okay in his demeanour, but became more agitated when he believed the complainant was accusing him of intentionally dropping the baby. She was scared by the accused’s actions, ran to the bedroom and told him to stay away. He had also made some threatening comments to the complainant’s father.

The whole incident was over in less than five minutes. [ 5 ] In cross-examination the complainant advised that there had been tension, arguments and yelling between them on more than one occasion prior to this alleged matter. This time she had tried to stay calm, because the baby was on the floor, even if it had been accidental. Once they started yelling at each other things happened very quickly. [ 6 ] She claimed as well that the accused had pushed her causing the strike to her head and disputed taking a swing at him. On the evidence she was 5’5” and the accused 6’2”.

On that basis, she denied any intention to be physically aggressive with him because of the size difference. The Complainant ’s Father [ 7 ] The complainant’s father had observed the verbal exchange between the accused and his daughter, when the child had fallen from the accused’s grasp as he was removed from the Jolly Jumper. While he comforted the child, the dispute between the accused and his daughter continued. At one point, the accused started to go downstairs to the area of his own bedroom, to cool off, and the complainant went upstairs to the bedroom.

However, the argument continued between the accused and the complainant. The accused’s mother was in the vicinity as well.

[ 8 ] Suddenly, the accused ran from the lower landing to the bedroom, where his daughter was headed. The accused’s mother tried to grab him as he ran by, to no avail. Both the accused and his daughter ended up in the bedroom. He heard a thump, but could not see what had happened because there was nobody else in the vicinity other than those two. The complainant told the accused to get away from her, as did he, as the accused made his way to the bedroom. [ 9 ] The accused’s mother had attended to console the complainant, because she was hysterical.

That, however, did not go well, so he suggested that she attend to the accused, while he looked after the complainant. As a result of his comments made to the accused’s mother, the accused had said words to the effect “don’t talk to my mom you bitch. I’ll fucking stab you.” [ 10 ] In cross-examination he confirmed that both the accused and complainant were engaged in an emotional situation. They were both yelling and swearing. Neither one would back down. However he denied that the complainant had walked toward the accused.

Rather, the accused had entered the bedroom where the complainant was located and he heard a thump. He denied also that he was angry by what the accused had allegedly done, but was only in defensive mode for the complainant. EVIDENCE FOR THE DEFENCE The Accused [ 11 ] The accused claimed that, while removing the baby from the Jolly Jumper, he had jumped, slipped out of his hands and was crying. Initially the complainant had said words like “you fucking dropped him”. He explained the child had slipped, initially speaking in a normal tone.

Soon the dispute had escalated and they were both shouting at each other, so the accused went toward his bedroom downstairs in order to cool off. In the meantime, the accused’s mother was speaking in a normal tone, attempting to find out what had happened. An argument between the complainant and the accused’s mother ensued, with the complainant calling her a bitch. [ 12 ] The complainant walked upstairs toward the bedroom and everybody was yelling and swearing at each other. The complainant went into the bedroom and shut the door. The accused went there and opened it.

When the door had been opened, the complainant struck the accused in the shoulder. As a result of that blow, the accused raised his arm to push back the complainant and not get hit, in

an act of self-defence. That caused the complainant to step back and he had only pushed her with one hand. He told her not to speak about his mom in that nature, and departed from the bedroom. He also could not recall yelling threats at the complainant’s father as alleged. [ 13 ] In cross-examination the accused confirmed he had walked fast because he was angry with the complainant. She had closed the door and the accused had opened it. He did not hear the complainant say that he should stay away from her, nor did he push the complainant first. Rather the complainant had struck the accused first in the shoulder.

Only after that did he push back, in order to defend himself. He also disputed making any nature of threats against the complainant’s father even though he was angry for the comments made by him to the accused’s mother. The Accused ’s Mother [ 14 ] At the material time, she had requested the accused remove the baby from the Jolly Jumper. A dispute ensued between the accused and the complainant when the baby fell or slipped from the accused’s grasp. [ 15 ] In the course of the argument, the complainant went to the upstairs bedroom and entered into it. In the meantime the accused

had gone from the living room to the bedroom door. The complainant went to slam it, but the accused pushed it open. She was not ableto see what happened in the bedroom, but heard the complainant screaming. She went to the complainant and tried to console her but thecomplainant pushed her away. Likewise she had sent the accused to his bedroom. She was also aware that the accused had made somenature of comment that he would stab or hit the complainant’s father for him calling her a bitch.

Regardless, the whole scenario wasvery stressful. [16] In cross-examination, she had confirmed that the accused may have been upset because of being accused of dropping thebaby. As well, the complainant had attempted to slam the bedroom door in order to ensure to exclude the accused therefrom even thoughhe was upset and went to the bedroom. The incident had only taken a couple of minutes, and then things calmed down.

ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt that the complainant had not consented to thealleged aggression of the accused, or that the accused had not acted in self-defence? [17] The constituent elements for this alleged matter are set forth in s. 265(1)(

a) of the Criminal Code, which provides as follows: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; [18] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubtwith credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [19] The determination of credibility does not involve the Court opting for one version of events or the other.

Rather, the Crownmust prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers theevidence of the Crown, it must still consider whether the evidence for the defence raises a reasonable doubt. Therefore, credibility of thematerial witnesses needs to be considered, in that context. [20] The complainant had claimed in her evidence that, as she tried to close the door to the bedroom, the accused had forced hisway in, pushing her down on the floor with both hands on her chest, she striking her head.

She disputed any suggestion of having taken aswing at the accused, particularly because of the size difference. [21] Her father advised that he had heard a thump from the bedroom when the two of them were in there alone. He had not been inthe bedroom at the time. [22] In his testimony, the accused claimed that after he had opened the door to the bedroom, the complainant had struck him withone blow in the shoulder. In order to defend himself he had pushed the complainant with one hand, which caused her to step back. The

accused’s mother as well was not able to see what had happened in the bedroom. When the complainant had gone to slam the door, the accused had pushed it open. She had heard the complainant screaming. The accused had also made some nature of comment that he would stab or hit the complainant’s father, because he had called her, the accused’s mother, a bitch. [ 23 ] Regardless, it is apparent that there was a great deal of animosity and bad blood which made it difficult for the witnesses to recall and relate in a reliable way what may have happened on the spur of the moment between the parties.

As well, there were no other witnesses in the bedroom, except the two of them, at the material time. [ 24 ] In any event, after having given careful consideration to all of the testimony, there is nothing from any of the witnesses who testified which undermines credibility to the extent that the evidence should be regarded as having less value, sufficient to support the conviction of the accused. As such, perhaps it is possible that the complainant had initiated the physical aggression by hitting the accused on the shoulder in frustration at how matters had unfolded to which he reacted with a blow.

None of that scenario supports the Crown being able to prove that the complainant had not consented to the application of force which had allegedly occurred, and the accused must receive the benefit of the doubt in that regard. [ 25 ] As such, applying the principles in McKenzie , supra, the Court does not know who to believe, and he is not guilty of the offence of common assault contrary to s. 266 of the Criminal Code . ________________________ P.S. Kolenick, J