Her Majesty the Queen - v. –, 2018 SKPC 049

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 049 Date: August 23, 2018 Information: 90140245 Location: Wynyard ______________________________________________________________________________ Between: Her Majesty the Queen - and – Leonard Borowski Appearing: Todd Wellsch For the Crown Self Represented For the Accused ______________________________________________________________________________ JUDGMENT M.G.MARQUETTE, J. ______________________________________________________________________________ INTRODUCTION [ 1 ] Mr.

Borowski is charged with two offences on Information #90140245: That on or about the 11 th day of March, 2017 at RM of Emerald #277 in the Province of Saskatchewan, he did in committing an assault on Morris Karakochuk cause bodily harm to him contrary to

section 267 (

b) of the Criminal Code . Count 2: and did commit mischief by willfully interfering with any person in the lawful use, enjoyment or operation of property to wit the yard of Morris Karakochuk by refusing to leave when asked to do so by the property owner contrary to section 430(1) (

c) of the Criminal Code. [ 2 ] Mr. Borowski entered not guilty pleas to both charges and the trial commenced on January 22, 2018 at Wynyard Provincial Court. The Yorkton Legal Aid office represented Mr. Borowski in the proceedings up to this date. The Crown called three witnesses at trial and then closed its case. Defence counsel then proceeded to call one defence witness, Bernard Schellenberg. Following the cross- examination of Mr. Schellenberg, irreconcilable differences arose between Mr. Borowski and his counsel and Mr. Borowski dismissed his legal counsel.

The trial was then adjourned to March 29, 2018, to allow Mr. Borowski to determine if he would be calling further evidence at trial. [ 3 ] On March 14, 2018, Mr. Borowski filed a Notice of Charter application pursuant to the Provincial Court of Saskatchewan Practice Directive No. 8 seeking relief from this Court pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms ,

Part I

of the Constitution Act, 1982 [ Charter ] asserting that a number of his Charter rights had been violated. On March 29, 2018, the Court heard submissions from Mr. Borowski in respect to his proposed Charter application and the Court adjourned the trial to May 30, 2018 to determine whether Mr. Borowski’s Charter application would be heard mid-trial, after the Crown had closed its case. Prior to the Court’s ruling on the proposed Charter application, Mr. Borowski filed a further Notice of Charter application on May 14, 2018. [ 4 ] On May 30, 2018 this Court ruled that neither of Mr.

Borowski’s Charter applications would be heard. The trial continued on May 30 and 31 st , 2018. Mr. Borowski called two witnesses, Constable Kletzel and Sergeant Posnikoff. Following the testimony of Constable Kletzel and Sergeant Posnikoff, Mr. Borowski sought court appointed counsel and a further adjournment of the trial. His request for court appointed counsel and a further adjournment were denied and the trial proceeded. At this time, the Court made several inquiries of Mr. Borowski as to whether he intended to call further evidence at trial and upon receiving no response from Mr.

Borowski, the Court deemed that Mr. Borowski had elected not to call further evidence at trial and had closed his case. The trial was then adjourned to June 4, 2018, for closing arguments. [ 5 ] On June 4, 2018, Mr. Borowski attended court and shortly after rising to address the Court he collapsed and medical personnel attended and transported Mr. Borowski by ambulance to the local hospital. The matter was then adjourned to June 28, 2018, for closing arguments. [ 6 ] On June 28, 2018, Mr. Borowski attended court and requested an adjournment.

The request was granted by the Court and the matter was adjourned to July 19, 2018 in Wadena Provincial Court for closing arguments. [ 7 ] On July 19, 2018 at Wadena Provincial Court, the Court advised that closing arguments would be heard. The Court outlined the nature of closing arguments and requested the Crown proceed first as Mr. Borowski was self-represented. Mr. Borowski then rose and was intent on the Court hearing his Charter application and despite repeated requests by the Court for Mr. Borowski to be seated he continued to speak over the Court.

As a result, the Court ordered written closing arguments to be filed by Crown and defence by 4:00 p.m. on August 15 th , 2018 and the matter was adjourned to today’s date for decision. Written submissions were filed by Mr. Borowski and the Crown. [ 8 ] On July 19, 2018, the Crown indicated they would not be seeking a conviction in respect to the offence of mischief. Therefore, a stay of proceeding was entered on Count 2 on the Information. [ 9 ] Accordingly, the following decision is in respect to the allegation that Mr.

Borowski in committing an assault on Morris Karakochuk did cause bodily harm to him contrary to

section 267 (

b) of the Criminal Code . ISSUES [ 10 ] The issues arising in this matter are:

a) Has the Crown proven beyond a reasonable doubt that Mr. Borowski intentionally applied force to Mr. Karakochuk without his consent?

b) If so, did the application of force cause bodily harm to Mr. Karakochuk? EVIDENCE [ 11 ] The Crown called three witnesses at trial, Constable Kennedy, Jack Ford, and the complainant, Morris Karakochuk. The defence also called three witnesses, Bernard Schellenberg, Constable Kletzel and Sergeant Posnikoff. [ 12 ] Mr. Karakochuk and Mr. Borowski are not strangers. Mr. Karakochuk is the Reeve of the RM of Emerald, a rural municipality surrounding the village of Wishart, Saskatchewan. He has acted in this elected capacity for seven years. For approximately 10 to 12 months in 2011-2012, Mr.

Borowski served as an elected councillor on the same RM council. The relationship between the parties during this time can best be described as strained. During his term as councillor, a motion of council restricted Mr. Borowski’s

attendance at the RM office to fifteen minutes and required him to make an appointment prior to attending to enable another employee or council member to be present in the office. [ 13 ] Mr. Karakochuk provided undisputed evidence that in the past the parties had verbal exchanges but never any physical altercations. Mr. Karakochuk testified that since Mr. Borowski was no longer a councillor, his direct interaction with him was minimal. However, it is clear from the evidence at trial that Mr.

Borowski raised a variety of issues when he was on and off council concerning the operation of the RM including allegations concerning the misappropriation of funds by the RM. [ 14 ] While this decision does not deal with Mr. Borowski’s many allegations concerning the operation of the RM of Emerald, it is important to view the evidence within the context of the relationship between the complainant and Mr. Borowski, a relationship which as stated is best described as strained and acrimonious. [ 15 ] At trial, Mr. Karakochuk provided the only direct evidence concerning the allegation before the Court.

His evidence was that on the afternoon of March 11, 2017, he was ploughing snow at various sites in the district of Bankend, Saskatchewan. Mid-afternoon, he stopped for coffee at the Bankend Co-op. He observed Mr. Borowski enter the store but did not speak with him. [ 16 ] Mr. Karakochuk then returned to his farm yard situated near Bankend, Saskatchewan and began ploughing snow in his yard. He was alone. At approximately 4:00 p.m. he observed a white truck drive into the yard and assuming it was his neighbor, Jack Ford, Mr.

Karakochuk got out of the tractor and approached the truck realizing as he drew closer that Mr. Borowski was the sole occupant of the vehicle. [ 17 ] Mr. Borowski exited the vehicle and walked toward him. Mr. Karakochuk asked Mr. Borowski “What can I do for you?” to which Mr. Borowski replied “I heard you’ve been saying bad things about me.” At this time the parties were about one yard apart from each other and as Mr. Karakochuk proceeded to ask Mr. Borowski to get off his property before he charged him with trespassing, Mr.

Borowski punched him in the face with his fist, striking his left cheekbone just below his eye and knocking Mr. Karakochuk’s glasses to the ground. Mr. Borowski then punched Mr. Karakochuk in the same spot and at this point Mr. Karakochuk fell on his knees onto the snow and Mr. Borowski proceeded to punch him twice in the neck just below his left ear and then twice more on the left side of the back of his head. [ 18 ] Mr. Borowski left the property and Mr. Karakochuk was unable to photograph Mr.

Borowski leaving the property due to the fact that he did not have his glasses and there was blood and snow on his face. He testified he then retrieved his glasses which were several feet away from him and texted and telephoned his wife. He requested she call the police. He then proceeded to call Jack Ford to attend at the farm, and Mr. Ford arrived within ten minutes. Constable Kennedy subsequently attended at the scene at about 5:00 p.m. [ 19 ] In testifying to his injuries sustained in the alleged assault, Mr.

Karakochuk stated he sustained a laceration to his left cheek and bruising and swelling to his left eye. He attended to the Wynyard Health Centre later that day where he had x-rays taken, underwent concussion protocol and received a tetanus injection. He was discharged that day and given Advil for his pain. Mr. Karakochuk testified a small scar remains on his left cheek from the laceration to his cheek and that for a prolonged period of time he had difficulty sleeping and remaining focused on tasks. [ 20 ] Photographs of Mr. Karakochuk’s injuries were filed as Exhibit P-1.

Photos 1 through 4 were taken by Constable Kennedy when he attended at the farm yard on March 11, 2017, and photos 8 & 9 were taken by Jack Ford when he attended at the farm yard on March 11, 2017. Photo 7 was taken by Constable Kennedy on March 12, 2017, when Mr. Karakochuk attended at the RCMP detachment. Defence also filed a photograph taken by Mr. Karakochuk of his face on the date of the alleged assault as Exhibit D-6. [ 21 ] Mr. Karakochuk was cross-examined extensively by Mr. Borowski’s counsel. He denied initiating an altercation with Mr. Borowski.

He specifically denied walking to the truck and yelling at Mr. Borowski and coming at Mr. Borowski ‘below the belt’ two or three times. He denied that Mr. Borowski grabbed him by the neck in order to defend himself and also rejected the assertion of defence counsel that he was wrestling with Mr. Borowski on the ground and as a result sustained a cut to his face. He further denied that Mr. Borowski offered to help him up before leaving or that Mr. Borowski had asked Mr.

Karakochuk to send the municipal plow to his mother’s yard site. [ 22 ] Jack Ford provided evidence at trial that on date of allegation he received a text or call from Mr. Karakochuk about the alleged assault and when he arrived at the farm about 4:20 p.m. only the complainant was present. He described Mr. Karakochuk as “somebody

that, quite bluntly, looked like they had went through hell. His face was ballooned up, there was blood all over the place and he wascompletely disoriented – almost like in a state of shock.” (Transcript, January 22, 2018, T186, Line 30-35) He testified he tookphotographs of Mr. Karakochuk and waited with the complainant until other people arrived at the farm yard. [23] On cross-examination, Mr.

Ford agreed that he did not give a statement to the police regarding the events on the date of the alleged offence until August 15th, 2017 and that he did not take any notes on March 11, 2017 but testified he had a good memory. He denieddiscussing the allegation with Mr. Karakochuk prior to providing his statement to the police.

He agreed he had accompanied Mr.Karakochuk to the RCMP detachment on March 12, 2017 but testified he remained in the waiting room. [24] The evidence of Constable Warren Kennedy, an RCMP officer stationed in Wynyard, Saskatchewan was that he was contacted by the complainant’s spouse on March 11th, 2017 at 4:10 p.m., and then he subsequently contacted Mr. Karakochuk by phone and droveto Mr. Karakochuk’s farm near Bankend, Saskatchewan. He arrived at approximately 5:00 p.m. and observed a pickup truck and atractor parked in the yard. Mr. Karakochuk and Mr.

Jack Ford exited the pickup truck and walked toward Constable Kennedy. ConstableKennedy observed that Mr. Karakochuk had blood coming from a cut just under his eye and snow covering his eye glasses. Hedescribed Mr. Karakochuk as being shaken up and “emotionally a little bit distraught”. [25] Constable Kennedy proceeded to take photographs of Mr. Karakochuk’s face and of the yard site, one photograph showing vehicletracks turning around on a snow covered area and a further photograph depicting a pile of snow to the side of the tractor with droplets ofblood in the snow.

Constable Kennedy took a further photograph of Mr. Karakochuk’s injuries the following day at the RCMPdetachment. He testified that Mr. Ford accompanied Mr. Karakochuk on that date but remained in the waiting room. [26] Following his attendance at Mr. Karakochuk’s farm yard, Constable Kennedy took no further steps to arrest Mr. Borowski asConstable Kennedy was working alone at that time, but on the following day, based on information obtained from Mr. Karakochuk, anda map of the rural municipality he attended at property belonging to K.

Borowski but no one was present at this location. [27] Constable Kennedy advised that Mr. Borowski voluntarily attended at the Wynyard detachment on March 15, 2017, and at thattime Constable Kennedy did not observe any injuries to Mr. Borowski. Mr. Borowski was arrested and subsequently released on apromise to appear. Constable Kennedy testified he spent approximately three hours with Mr. Borowski on that date but agreed on cross-examination that Mr. Borowski was not released from custody for seventeen hours. [28] Mr. Schellenberg testified for the defence. He described himself as Mr.

Borowski’s “sort of next door neighbor”. He did notwitness the alleged assault on March 11, 2017. He stated that the relationship between Mr. Karakochuk and Mr. Borowski got to be, ashe described “testy” during the time Mr. Borowski was on the RM council. He testified in examination-in-chief that he thought Mr.Borowski had a good reputation regarding truth and veracity and that Mr. Karakochuk could at times be overbearing in his role as theReeve of the rural municipality.

However, he agreed in cross-examination that others may not share his opinion concerning Mr.Borowski or members of the RM council. [29] Constable Kletzel and Sergeant Posnikoff testified for the defence. Neither of the officers attended at Mr. Karakochuk’s farm yardon the date of the alleged offence. They did not provide any evidence in respect to the allegation on that date. Their evidence elicited inexamination-in-chief dealt with the attempts to locate Mr. Borowski following the alleged assault and the arrest of Mr. Borowski onMarch 15, 2017. THE LAW [30] Mr.

Borowski is presumed innocent of the allegation currently before the Court. The Crown bears the burden of rebutting thispresumption and in order to obtain a conviction, the Crown must prove each element of the offence of assault causing bodily harmbeyond a reasonable doubt. While this standard of proof does not require absolute proof it most certainly requires proof greater than afinding that the Mr. Borowski is probably guilty of the offence as charged. (R v Lifchus, (SCC), [1997] 3 SCR 320, 118CCC (3d) 1 (SCC)). [31] Mr. Borowski is charged with the offence of assault causing bodily harm contrary to

section 267(

b) of the Criminal Code. [32]

Section 267(

b) states:

267. Every one who, in committing an assault, ….. (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 33 ] An assault is defined in section 265(1) (

a) of the Criminal Code 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; [ 34 ] In R v Merasty, 2014 SKQB 268 , the Court identified the elements of assault and assault causing bodily harm at paragraphs 117- 118: [117] To secure a conviction the Crown must prove each element of each charge.

The elements for the offence of simple assault are: • That the accused is the person (or one of the persons) who actually committed the assault . • That the assault occurred at the time and place set out in the indictment. • That the accused applied force directly or indirectly to the complainant . • That the accused intended to apply force directly or indirectly to the complainant . • That the complainant did not consent to the application of force by the accused . • That the accused knew the complainant did not consent. [118] With respect to the charge of assault causing bodily harm , there is an additional element: • That the assault by the accused caused bodily harm to the complainant and that a reasonable person would inevitably have realized that such an assault would subject the complainant to the risk of bodily harm . ...

There is a causation component to this element. The Crown must show that the acts of the accused caused the bodily harm to the complainant . [ 35 ] Bodily harm is defined in

section 2 of the Criminal Code as “ any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.” [ 36 ] In R v Stonechild, 2016 SKQB 130 [ Stonechild ] the Court addressed the determination of bodily harm at paragraphs 26 to 29 stating: [26] The test for the determination of bodily harm is reasonably well known. A concise and helpful analysis of the law in this respect was recently conducted by Layh, J. in R v. Poitras , 2015 SKQB 341 (Sask. Q.B.) [Poitras].

In Poitras , this Court reviewed the approach taken by the Manitoba Court of Appeal in Moquin, 2010 MBCA 22 , 251 Man. R. (2d) 160 (Man. C.A.) [Moquin] which had, in turn, followed the lead of the Yukon Territory Court of Appeal in R v Dixon , 1988 CarswellYukon 38 (Y.T.C.A.) (WL) [Dixon]. [27] In Dixon , Esson J. A. gave some meaningful definition to the term “bodily harm” in a passage at paras 44 – 46, that was later recited in Moquin . That passage reads as follows: 44 …I leave aside the question whether there was interference with health because, if there was interference with comfort, that is enough.

Transient, trifling and comfort are all words in common usage. The Shorter Oxford English Dictionary, 3rd ed., vol. II defines transient at p. 2346 as: Transient 1. Passing by or away with time; not durable or permanent; temporary, transitory; esp. passing away quickly or soon, brief, momentary, fleeting. At p. 2362, it defines “trifling” as: Trifling 3. Of little moment or value; trumpery; insignificant, petty. At pp. 373-74 (vol. I), it defines “comfort” as: Comfort 4. The condition or quality of being COMFORTABLE.

45 Clearly, as employed in s. 245.1(2), those words import a very short period of time and an injury of very minor degree which results in a very minor degree of distress. 46 The findings that “there is no evidence of any interference with the victim’s health or comfort” and that “an injury that lasts no longer than a month would fall within the definition of being transient and trifling” demonstrate, in my view, an absence of any reasonable regard for the ordinary meaning of the words.

From the time of the assault at least until medical treatment was completed, it is clear that the victim must have been deprived of any sense of comfort which she might have had before being assaulted. The element of interference with comfort, which is all that the definition requires, must have continued for some time after that. The interference with comfort resulted from a significant injury – one which cannot be described as trifling. There is no necessary connection at all between the duration of the injury and the question whether it is trifling – a life-threatening injury is often resolved in a short time.

Transient does not relate to time but, in this context, it is simply insupportable to describe as transient an injury that “lasts no longer than a month”. [Emphasis added] [28] From the Manitoba Court of Appeal’s consideration of Dixon , Layh J., in Poitras , drew a conclusion about the nature of “bodily harm” which he concisely described at para. 65: 65 From R v. Dixon …, as accepted by the Manitoba Court in Moquin , one can conclude that either the complainant’s comfort or health must be subject to interference by the injury, with comfort often being the lower threshold.

And, while “transient” relates to time, “trifling” relates to seriousness but not to duration of the injury. As well in Moquin , the court rejected the trial judge’s functional test – whether the injury to the complainant’s arm prevented her from using her arm, or whether the injury to her throat made swallowing difficult.

The court stated, at para. 31, that although “…a functional impairment may accompany bodily harm, it is not a necessary component of bodily harm as it is defined in s. 2 of the Code ”. [ 37 ] As discussed in the Stonechild decision, the court in R v Poitras , 2015 SKQB 341 [ Poitras ] set out examples of injuries that have been found by courts of appeal to constitute bodily harm. Mr.

Justice Layh reviewed several appellant decisions which determined that scrapes, lacerations, and bruises, ranging from superficial to scarring, as well the pulling of a person’s hair out by its roots, sore necks and an inability to speak due to choking, all fell within the definition of bodily harm as defined in

section 2 of the Criminal Code . In Poitras , the Court determined that prominent and significant bruising lasting over two weeks, ringing in her ears from blows to her ears and difficulty sleeping due to rib pain interfered with the complainant’s comfort in a way that was more than trifling and transient and satisfied the definition of bodily harm. [ 38 ] Applying the law as stated above, it is the role of the court to determine whether based on the evidence at trial the Crown has proven beyond a reasonable doubt that Mr. Borowski assaulted Mr.

Karakochuk on March 11, 2017, in the RM of Emerald and the said assault caused bodily harm to Mr. Karakochuk. ANALYSIS [ 39 ] Similar to the decision in Poitras , only Mr. Karakochuk and Mr. Borowski know what occurred the afternoon of March 11, 2017, at Mr. Karakochuk’ s farm yard. In Poitras , the Court assessed the credibility and reliability of conflicting evidence in determining whether the Crown had satisfied its burden of proof as both the accused and the complainant testified in that case. In this matter, there is no conflicting evidence before the Court. There is the evidence of Mr. Karakochuk.

However, the Court must assess the credibility and reliability of this evidence in context of the other evidence at trial in determining whether the Crown has satisfied its requisite standard of proof. [ 40 ] In discussing credibility and reliability, Mr. Justice Layh in Poitras references the decision of the Ontario Court of Appeal in R v H.C ., 2009 ONCA 56 at para 41 , 241 CCC (3d) 45 where Mr. Justice Watt stated “credibility and reliability are different”. [ 41 ] Mr.

Justice Layh continues at paragraph 38 of Poitras stating: While credibility deals with veracity of a witness’s testimony, reliability deals with accuracy of the testimony. Accuracy, in turn, Justice Watt stated engages considerations of the “witness’s ability to accurately observe, recall and recount events in issue.” A witness whose evidence is not credible cannot be reliable on that point. But credibility does not assure reliability – a credible witness may give unreliable evidence. [ 42 ] Mr.

Justice Layh outlines at paragraph 42 to 45 considerations to be made in assessing credibility, which I summarize as follows:

a) Did the witness make statements consistent with previous statements? Mr. Justice Layh noted that the consistency of a witness’s statements throughout is one measure of credibility.

b) Is the witness testimony offered consistent with other reliable evidence? – is there supporting photographic evidence?

c) Is the evidence of the witness internally consistent at trial, whether offered in examination-in-chief or cross-examination? Did the witness self-contradict?

d) Does the witness have an interest in the trial’s outcome or are they impartial to the outcome? Mr. Justice Layh notes that there is an allowance that the accused, in giving evidence, is presumed innocent and cannot be ascribed lack of credibility solely because he or she has chosen to testify.

e) What was the witness’s demeanor? Was the witness responsive to questions? Was the witness straightforward or evasive, argumentative and hesitant? [ 43 ] In assessing the credibility of Mr. Karakochuk’s evidence, I find that his evidence concerning his injuries was externally corroborated by the photographs taken by Jack Ford and Constable Kennedy which were filed as exhibits by the Crown and further by the photograph taken by Mr. Karakochuk, the “selfie” which was filed as Exhibit D-6 by the defence. All of the photographs were taken shortly after the alleged assault and corroborated the testimony of Mr.

Karakochuk that Mr. Borowski struck him in the face. Given the time the photographs were taken by the parties the Court finds this evidence to be highly reliable and as stated externally corroborates Mr. Karakochuk’ s testimony. [ 44 ] Mr. Karakochuk’s evidence of an alleged assault was further corroborated by the testimony of Jack Ford and Constable Kennedy as to the demeanour of Mr. Karakochuk when they attended at the farm yard. The Court acknowledges that Mr. Ford is a friend of Mr.

Karakochuk and may have an interest in the outcome of the trial and his evidence is considered in this context, however Constable Kennedy has no vested interest in the outcome of the trial and his observation of Mr. Karakochuk on that date that he appeared “shaken up and emotionally a little bit distraught” provides external corroboration to Mr. Karakochuk’s testimony that he was in a state of shock after the alleged assault. [ 45 ] An internal inconsistency arose in respect to Mr. Karakochuk’s evidence at trial.

During his examination-in-chief he testified that following the alleged assault he retrieved his glasses from the ground and then sent a text message and then called his wife. In cross- examination, Mr. Karakochuk was asked if he texted and phoned without having his glasses to which Mr. Karakochuk replied that he had the phone numbers on speed dial so he only had to push one number. His answer seemed to imply that he was not wearing his glasses at this time. [ 46 ] The photographs taken on the date of the alleged offence show that Mr. Karakochuk’ s glasses were snow covered shortly after the alleged assault.

The Court does not find that the inconsistency as to whether Mr. Karakochuk placed his glasses on before or after he placed the call to his spouse to be significant in this matter. [ 47 ] Defence counsel asserted in cross-examination that Mr. Karakochuk did not testify that he had fallen to his knees during the assault until he was cross-examined on the particulars of the alleged assault. This was not correct. Mr. Karakochuk testified in examination-in- chief that following the second blow to his face, he fell to his knees in the snow. Further defence asserted that Mr.

Karakochuk did not describe the hits to the side and back of his head when providing a statement to Constable Kennedy on March 12 th , 2017. However in re-examination when presented with a transcript of his statement to Constable Kennedy on March 12, 2017, (a transcript which was obtained by defence) he agreed he did in fact describe being hit in the back of the head on that date and further, the evidence of Constable Kennedy, was that complainant had advised him on the date of the alleged offence that he had been struck four to five times. The Court finds Mr.

Karakochuk’s testimony regarding the alleged assault to be overall internally consistent. [ 48 ] As previously stated, it was apparent to the Court that the relationship between Mr. Karakochuk and Mr. Borowski is not amicable. The credibility of Mr. Karakochuk’s allegation must be viewed in this context. Mr. Karakochuk was cross-examined extensively by Mr. Borowski’s legal counsel and his evidence regarding the alleged assault was not shaken on cross- examination. He testified in a forthright manner.

He acknowledged the strained relationship between the parties and accepted that he had in the past raised his voice to Mr. Borowski but he testified that although there had been verbal exchanges between the parties there had not been any physical altercations in the past. A reasonable doubt as to the credibility of Mr. Karakochuk’s allegations based on the parties past relationship was not raised by Mr. Karakochuk’s testimony on cross-examination. [ 49 ] Based on the above noted analysis, the Court finds the evidence of Mr. Karakochuk to be credible. As well, Mr.

Karakochuk immediately reported the incident to the police and provided a formal statement the following day. There was no delay in reporting the alleged offence. A delay could have raised issues of recollection and observation. Further, there was no evidence that on that date Mr. Karakochuk was under the influence of alcohol and drugs. There were no issues raised at trial regarding the reliability of his evidence.

[ 50 ] Accordingly, the Court is satisfied beyond a reasonable doubt based on the assessment of the credibility and reliability of the evidence at trial that on March 11, 2017, Mr. Borowski committed an assault on Mr. Karakochuk as defined in

section 265 of the Criminal Code . [ 51 ] The Court further finds that the assault did cause bodily harm to Mr. Karakochuk. Mr. Karakochuk sustained a laceration to his left cheek as well as bruising and swelling to his left eye. The laceration resulted in a faint scar on Mr. Karakochuk’s face as observed by the Court at trial. Mr. Karakochuk attended the hospital following the assault. He had x-rays, received a tetanus injection and underwent concussion protocol. The injuries sustained by Mr. Karakochuk interfered with the comfort of his person and were not trifling or transient and as such fall within the definition of bodily harm set out in

section 2 of the Criminal Code . [ 52 ] Therefore, the Court finds Mr. Borowski guilty of assault causing bodily harm contrary to

section 267 (

b) of the Criminal Code . _______________________ M.G. Marquette, J.