Her Majesty the Queen - v. -, 2012 SKPC 91

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 091 Date: June 6, 2012 Information: 24427081 Location: Biggar _____________________________________________________________________________ Between: Her Majesty the Queen - and - Donald Wayne Phillips Appearing: Suzanne Reid For the Crown Stuart Busse, QC For the Accused JUDGMENT V. H. MEEKMA , J INTRODUCTION [ 1 ] The accused is charged that on or about the 21 st day of September 2011, at Biggar, in the Province of Saskatchewan, did: Count #1: in committing an assault, cause bodily harm to Jackie Lee PRITCHARD contrary to s. 267 (

b) of the Criminal Code of

Canada; Count #2: being at large on his undertaking given to a peace officer or an officer in charge, that has been confirmed by a justice and being bound to comply with a condition of that undertaking requiring him to: not be near or enter the premises known as the Biggar Hotel, did fail without lawful excuse, to comply with that condition, contrary to s. 145(5.1) of the Criminal Code of Canada; Count #3: being at large on his undertaking given to a peace officer or an officer in charge, that has been confirmed by a justice and being bound to comply with a condition of that undertaking requiring him to: keep the peace and be of good behaviour, did fail without lawful excuse, to comply with that condition, contrary to s. 145(5.1) of the Criminal Code of Canada; Count #4: being at large on his undertaking given to a peace officer or an officer in charge, that has been confirmed by a justice and being bound to comply with a condition of that undertaking requiring him to: abstain completely from the possession and consumption of beverage alcohol within the meaning of The Alcohol Gaming Regulations Act of Saskatchewan, did fail without lawful excuse, to comply with that condition, contrary to s. 145(5.1) of the Criminal Code of Canada. [ 2 ] The accused testified in his own defence, therefore requiring a W.(D.) analysis.

He admits punching the complainant but asserts that it was accidental in the course of the accused defending himself in a fight with her father, in which she intervened. The Crown contends that the accused intentionally struck the complainant and, in the alternative, relies on the doctrine of Transferred Intent. EVIDENCE [ 3 ] Six witnesses testified for the Crown. I will summarise the evidence of each as well as that of the accused. [ 4 ] Diana Voll was at the Biggar Hotel bar celebrating a birthday.

She had gone outside on the deck for a cigarette with the complainant between 7:30 and 7:45 p.m., when the accused came out. The complainant said she did not like the accused and went back inside. The accused made comments about the complainant which Voll ignored and then told Voll she was beautiful and asked if he could buy her a drink. [ 5 ] Voll described the complainant as an “acquaintance” with whom she had family members in common. She has known the complainant’s father, Gordon Pritchard, for thirty years. [ 6 ] Voll herself drank two paralyzers over the course of five hours.

She did not think Gordon Pritchard was drinking at all, or that the complainant was intoxicated. She did not know the accused but believed that he was intoxicated by his demeanour, which she described as “very angry”. [ 7 ] Voll had again gone outside to have a smoke between 9:30 and 10:00 p.m. when she heard yelling and saw the complainant punched and thrown seven feet off the hotel step. She saw a fist punch the complainant and recognized the shirt which the accused was wearing on the arm delivering the punch. The accused and Gordon Pritchard were standing on the step in front of the door.

There was a bruise welting up on Gordon’s face. The complainant’s three front teeth were knocked out of her mouth by the punch and had fallen on the ground. Blood was gushing from her mouth. [ 8 ] According to Voll, Gordon Pritchard and the accused were still shoving each other. They had fists on each other and were shoving back and forth. [ 9 ] Voll then stepped between the accused and Gordon, and the accused swore at Voll. He called her a squaw. He said, “I’ll fucking punch you, you squaw”. The accused said the complainant “gave Donny Dillson a blow job for $50.00”.

Voll told him to leave because the police were coming. The accused had raised his fist to Voll, within inches of her. Voll’s cousin said “if you touch my

cousin I will get involved”. When Voll told the accused she was white, he backed off. Voll testified he calmed down when he realized she was not native, but was going to punch her until her cousin stepped in. It was closing time and the bar door had been locked when they tried to get back in. [ 10 ] Jennifer Blampied witnessed the argument in the bar between the accused and the complainant. She had the impression that the accused was trying to pick up the complainant. An argument ensued and the accused called the complainant either a “squaw” or “Indian”. Blampied could tell the accused had been drinking.

She saw him quickly stand up, knock over his chair, and go towards the complainant’s table with a very angry look on his face, his fists raised, calling the complainant either “Indian” or “squaw”. The tables were 13 feet apart. The accused and the complainant went towards each other. The bar owner pushed out a group of people including the accused, the complainant, her father Gordon Pritchard and Ruby Herman. [ 11 ] Blampied had been drinking herself and assessed her own sobriety as a “5” out of a scale of 1 to 10.

The complainant had been drinking but Blampied could not assess her sobriety, nor could she tell if Gordon Pritchard had been drinking. [ 12 ] Ruby Herman testified that she had been in a relationship with the accused previously. He had asked her to put in a good word for him with the complainant, i.e. “set him up” and she agreed.

Herman and the accused had arranged earlier to meet at the bar. [ 13 ] Herman had a couple of drinks at home with the complainant and also saw the complainant consume some Tylenol pills. [ 14 ] Herman heard the complainant call the accused “old and gross and creepy” and to leave her alone. Herman told the complainant that was not very nice. She later heard them shouting back and forth and the accused called the complainant a “fucking squaw” and the complainant stood up and moved toward the accused. She was angry. Herman did not believe that the accused was intoxicated but he was drinking.

Herman agreed on cross-examination that the accused did not go to meet the complainant. [ 15 ] The complainant, Jackie Pritchard, testified that she went to the bar at about 9:30 p.m. with Ruby Herman after having a few drinks at Herman’s house. She estimated her sobriety level at a “4” out of 10 when she arrived at the bar, describing herself as “buzzed”. Ruby sat down with the accused and the complainant sat down with Ruby. In the bar, the accused was paying her unwanted attention. He kept telling her how good she looked in purple and she told him to leave her alone but he would not listen.

When she went outside to have a smoke, he came outside after her, so she left. Previously, the accused would come into the store where she was working and she would try to ignore him and tell him to leave her alone. [ 16 ] The accused kept calling her a “squaw”. Her father, Gordon Pritchard, did not like that so he got up and walked over to the accused, then all three of them went outside. The accused and her father started arguing, pushing, shoving, and swinging at each other. Her father’s eye started puffing up. She got in between them and was pushing them apart. The accused was still calling her a squaw.

She was looking towards her father when she heard a loud noise and was struck in the face. Her teeth were knocked out. She screamed. She was bleeding profusely. [ 17 ] When the blow struck, she was standing one step below her father and the accused who were standing on each side of her. The punch threw her off the step. Her father was leaning against the door and the accused was standing directly in front of her. She saw him looking at her just before he punched her.

It was just prior to the bar closing, because the doors were locked immediately afterward. [ 18 ] She lost three front teeth and was only able to locate two of them on the ground which were reattached with wires at the Royal University Hospital. The teeth remain loose and may not stay in. She spent two nights in hospital and her lips and nose were swollen.

[ 19 ] The complainant described the accused as drunk, loud and obnoxious. She also agreed that she was intoxicated when she was struck, a 7 or 8 out of 10. She thought her father had one beer. She admitted that she was upset and angry with the accused and was probably swearing and yelling at him. [ 20 ] Gordon Pritchard testified that Ruby, he, Jackie and the accused were sitting at the table. The accused bought a round of drinks. Later Gordon was on the back patio when someone told him that Jackie was being pushed.

He went inside to hear the very angry accused pointing at her and calling her a “slut” and a “fucking Indian squaw”. Both the complainant and Ruby were standing up. Gordon grabbed the accused by the coat and pushed him outside to find out why he was calling his daughter down. They started fighting and throwing fists at each other. Gordon did not notice the complainant being struck but it was after he had been hit in the eye and had blood in it.

According to Gordon, the accused struck Jackie a few minutes after Gordon and the accused had stopped fighting and the accused ran back up onto the step to strike Jackie, then ran back down. The accused was still swearing at her, calling her a “squaw”. She and someone else had been trying to break them up. [ 21 ] Gordon had heard the accused asking the complainant to go to his house. She did not want to go out with him because he was the same age as her father. [ 22 ] Gordon confirmed that he only had one beer. [ 23 ] Constable Cory Winslow received the complaint at 11:30 p.m.

He drove the complainant to the hospital. He assessed her sobriety at 6 or 7 out of 10. He helped locate two of her front teeth on the ground. When he arrested the accused at his home later that evening, the accused was still showing signs of intoxication. Constable Winslow described the accused at that time as “rude and vulgar”. [ 24 ] The accused, Donald Phillips, testified with his version of events. According to him, he went to the bar at around 8:45 p.m. He never sat down with the complainant at all, but only with Ruby. The complainant told him to “fuck off” and called him a “creepy old man and a pervert”.

Ruby called her over and told her that was not very nice. He then moved to a table by the VLTs and the front door, and was not there more than a couple of minutes when the complainant was in his face with her finger screaming “what did you say” at him. He then jumped up, knocking over his chair, and hollered “get this fucking squaw away from me”. The complainant turned around and went away and the accused picked up his chair. The complainant and her father then both jumped him. Her father grabbed him and the accused and Gordon Pritchard were hanging onto each other as they went outside.

The accused and Gordon started swinging, each punching the other three or four times. [ 25 ] The accused did not realize that he had punched the complainant until he heard her scream “you knocked my fucking teeth out”. According to the accused, the complainant was also punching him in the head and was kicking him, although his counsel in argument insisted that he was defending himself against Gordon Pritchard only and never intended to strike the complainant.

The accused testified that he had tooth marks and cuts on his right hand and thought that his hand had been broken. [ 26 ] After he hit the complainant, he and Gordon stepped back from each other. He stepped down and Diana Voll pushed him about three times. She said they were going to call the cops. He testified that he never intended to hit the complainant, but also stated “they both came right at me at the door”. In cross-examination, he denied ever sitting with the complainant. He confirmed that the chair was knocked over when he was trying to get away from her.

He denied going out to the smoking pit, denied telling the complainant she was beautiful, denied asking Ruby to set them up that evening, although he admitted having done so previously. He denied having any conversation with Diana Voll on the patio. He denied saying that the complainant gave anyone a blow job but added “I heard that from Ruby about my friend Danny”.

He took off even though he knew the police were coming because he was afraid of people spurred on by Diana Voll. [ 27 ] He also confirmed again that the complainant was “kicking me in the balls and punching me in the head”. “She was right there with Gordon kicking me”. “After she got hit she moved away”.

He said he had his head down protecting himself and did not realize that he had punched her. [ 28 ] The accused admitted being on conditions at the time not to go to the Biggar Hotel but said that the complainant in the case involving the conditions had told him that he was leaving town and the Court dragged it out for fourteen months. A long time had gone

by and it “kinda slipped my mind”. ISSUES 1. Applying the W.(D.) analysis, is there a reasonable doubt that the accused intended to strike the complainant? 2. Does the doctrine of Transferred Intent apply if the accused intended to strike the third party but by accident struck thecomplainant, thereby causing bodily harm? ANALYSIS 1. Applying the analysis in R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) [29] Following the steps in W.(D.) I did not believe the accused, I am left in no reasonable doubt by his evidence, and I amconvinced beyond a reasonable doubt of his guilt on the basis of the balance of the evidence which I do accept, for reasons which I willexpand on. [30]

Section 37 of the Criminal Code justifies using force in self-defence and initially the accused was defending himself in aphysical fight with Gordon Pritchard. However, I find that his punching the complainant was not an accident but an intentionalapplication of force against her which was not necessary to defend himself against either the complainant or Gordon Pritchard. [31] The evidence of the accused was unbelievable and contrary to that of the other witnesses, some who had little or noconnection to any of the parties involved.

All but Gordon Pritchard and Diana Voll, who only had two drinks, were intoxicated to somedegree and the effect of beverage alcohol on memory, as well as the passage of time, explains some inconsistency. All of the Crownwitnesses, in my opinion, were answering truthfully to the best of their recollection. The evidence of the accused was not even consistentwith that of Ruby Herman, whose account was the most favourable to him of all the Crown witnesses. The accused denied asking Rubyto set him up with the complainant.

He denied calling the complainant a “fucking squaw” before, according to him, she was in his faceand he jumped up knocking over his chair only to get away from her. [32] He also denied ever sitting down with the complainant, denied telling her she was beautiful, denied going out to the patiowhen she was there, denied ever talking to Diana Voll on the patio, denied telling Voll that the complainant gave someone a blow job,and although he is not claiming that he acted in self-defence against the complainant, he claims that she was punching and kicking him inthe genitals, which is not corroborated by the evidence of any of the other witnesses and in my opinion can only be an absolutefabrication. [33] His mean-spirited vindictiveness towards the complainant still persisted during his evidence at trial.

Although he claimed thathe struck the complainant by accident and feels badly that she was injured, he chose to embellish his denial of telling Voll that thecomplainant gave someone a blow job for $50.00 with the comment that he had heard that from Ruby about his friend Danny. [34] The witnesses who indicated a time frame have events unfolding over a couple of hours, which seems reasonable for theconversations, interactions, drinking and smoking they attested to. The accused however, who denies most of it took place at all, haseverything transpiring within a few minutes of his arriving at 8:45 p.m.

The other witnesses are corroborated by the time of the policecomplaint, at 11:30 p.m. [35] The evidence from the other witnesses paints a very unflattering picture of his demeanour and state of mind both prior to andfollowing the incident. He was angry and enraged. He directed demeaning, racial slurs at the complainant several times. He walkedtowards her table in the bar with his fists raised. Immediately after the incident, he raised his fists at Diana Voll, calling her a “fucking

squaw” and threatened to punch her too. When he was arrested by the police sometime later, he was still described by the officer as rudeand vulgar. [36] Although the anger and demeaning language does not constitute an assault, it does provide context and is evidence of his stateof mind, which supports aggression against the complainant, and from which an inference of motive and intent can be drawn. [37] Gordon Pritchard, by all accounts, was the most sober of all of the witnesses. No one suggested he had more than one beer.

He said that the fight was over for a few minutes at the point in time when the accused ran back up onto the step and hit the complainant,although he did not actually see the punch, and at that point in time he had suffered the blow to his eye which was swelling and had bloodin it. [38] The complainant herself says that she had intervened and was holding them apart with her hands and was looking towards herfather at the point when she was hit. Just before that, she saw the accused looking at her.

She says that she was down a step lower andthe accused was on her left and her father on her right. [39] Diana Voll saw the punch and she placed the accused on the left, the complainant between them, and her father to the right. [40] My conclusion, after considering all of the evidence, is that there was a brief interlude between the fight and the accusedstriking the complainant, not as long as Gordon Pritchard had thought, but an interlude of at least a few seconds after the complainanthad stepped between them and was separating them by holding them back with both arms.

At no time did the complainant punch or kickthe accused. Her father was standing back with blood in his eye which was injured and swelling. The accused saw the complainant. Hedid not have his head down blindly punching. He was no longer defending himself. He intentionally punched the complainant in theface with his fist so hard that she flew off the step and lost three of her teeth, so hard that the accused thought he had broken his hand. The injury to the complainant constitutes bodily harm. 2.

The doctrine of Transferred Intent [41] Having found the accused guilty of intentionally assaulting the complainant, it is not necessary to address this issue. However, had I not found that he intentionally punched the complainant, I would have found him guilty by virtue of Transferred Intent. [42] At the point in time when the accused punched the complainant, it was no longer necessary for him to defend himself againstGordon Pritchard. Gordon had stopped fighting. He was injured. He had blood in his eye and it was swelling. Another blow againstGordon was not justified as self-defence under s. 37.

Had he intended to punch Gordon Pritchard rather than the complainant, it wouldconstitute more force than necessary. [43] The doctrine of Transferred Intent applies when an injury intended for one falls on another by accident. Any defenceavailable with respect to the intended victim, such as self-defence, is transferred to the actual victim. Conversely, if the act is unlawfulagainst the intended victim, it is no defence that the accused did not intend to strike the actual victim. Specific intent to harm her isirrelevant.

To prove intent, the Crown must establish general intent to strike the intended victim. [44] For discussion of the doctrine of Transferred Intent, see R. v. Deakin, (MB CA), [1974] 3 W.W.R. 435, 26C.R.N.S. 236, 16 C.C.C. (2d) 1 (Man. Ct. of App.); R. v. Phan, 2009 ABPC 190, 476 A.R. 323 (Alta. Prov. Ct.). [45] If bodily harm occurs in the course of a consensual fist fight, consent is not vitiated unless the accused intended to inflict bodily harm. See R. v. Crosby (2005), 2005 PESCAD 1 , 27 C.R. (6th) 39, 192 C.C.C. (3d) 23 (PEI Ct. of App.).

However, inthis case, I found that the fist fight was over at the time when the blow was struck. The accused and Gordon Pritchard had beenseparated and Gordon Pritchard was visibly injured. Had the accused directed his blow at Gordon Pritchard, that too would haveconstituted an assault.

CONCLUSION [ 46 ] The accused is guilty of all four counts, assault causing bodily harm to Jackie Lee Pritchard as well as breaches of his undertaking by entering the Biggar Hotel, consuming beverage alcohol, and failing to keep the peace and be of good behaviour, respectively. ______________________ V.H. Meekma, J