Her Majesty the Queen - v. -, 2014 SKPC 157

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 157 Date: September 9, 2014 Information: 43374548 and 43374547 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marina Marie Fogarty - and - Richard Max Proskie Appearing: Brian Hendrickson, Q.C. For the Crown Maria Pappas, Q.C. For the Accused, Marina Marie Fogarty Noah Evanchuk For the Accused, Richard Max Proskie JUDGMENT M. GORDON , J

[ 1 ] Marina Marie Fogarty is charged with two counts of assault, namely on our about the 19 th day of May 2013, at or near Moose Jaw, Saskatchewan did commit an assault on Robert Scott Gerard, contrary to s. 266 of the Criminal Code and count 2, commit an assault on Kimberly Dawn Gerard, contrary to s. 266 of the Criminal Code . [ 2 ] Richard Max Proskie is also charged with the same two counts of assault. He is charged on a separate information (43374547). However, by agreement of all counsel, the Crown evidence heard on the trial of Marina Marie Fogarty was applied to the trial with respect to Mr.

Proskie by consent. No evidence was called by either defence and therefore I find it appropriate to deal with both matters in one decision. [ 3 ] May 19, 2013 was Robert Scott Gerard’s birthday. His wife Kim Gerard posted this on Facebook. As a result their friends Marina Fogarty and Richard Proskie arranged to come over for a birthday drink.

The two Crown witnesses being Robert Gerard and his wife Kimberly Gerard both admit that they had a very nice time when Marina and Richard came over and all went well until the guests were departing. [ 4 ] Robert Gerard had several beer prior to the guests arriving and then several beer during the afternoon visit. He also consumed homemade wine or “Hutterite wine” brought by the guests. As the guests were leaving Robert gave Marina a hug. He then remembers getting hit from behind in the back or neck area and falling onto the love seat.

He does recall his wife Kimberly giving him a tap on the shoulder prior to this. Mr. Gerard did not see who pushed him but on cross-examination he testified he was hit with a fist in the upper part of his back. It felt like a blow to him and he fell. The photographs filed as Exhibit P-1 showed extensive bruising. [ 5 ] Kimberly Gerard also agreed that the two couples had a very nice afternoon. She had consumed about three beer but said she was not drunk but admitted she was not sober. In her view, both Marina and Richard had more to drink than her and so did her husband, Robert.

She recalls Marina hugging her husband Robert and Richard seemed to get mad and left. Kimberly noticed this and tapped her husband on the shoulder. The next thing Kimberly remembers is Marina pushing Robert who fell back onto the love seat. Marina pinned Robert’s arms down and kept hitting him. She does not recall any words spoken. Kim went to the deck and yelled for Richard. Richard came in and said “you touched my wife, fool”. At this point Richard punched Robert everywhere and Robert had lost consciousness and was bleeding.

Kimberly saw Marina kick Robert again and Kimberly tried to intervene and get between Robert and both Marina and Richard, and it was at this time that both Marina and Richard kicked and punched her. [ 6 ] Kimberly admitted on cross-examination that once she tapped Robert on the shoulder, Robert made a move which appeared aggressive. Kimberly also admitted yelling “they are fighting” when she called for Richard Proskie. On cross-examination by Mr. Evanchuk, counsel for Richard, Kimberly did not recall Robert punching or fighting back.

She also denied that her comment “they are fighting” meant that there was a consent fight. She was not thinking quickly enough and just called out. She also admitted that due to suffering several strokes, she takes a prescription

Schedule IV narcotic and she was also drinking alcohol that day. [ 7 ] Constable Rice was dispatched to this address. As he approached he could hear screaming and a woman yelling “help”. The doors to the apartment building and to the apartment itself on the third floor were both open. He announced his presence and then saw Richard Proskie throwing punches at Robert Gerard. He saw Marina Fogarty kicking at Mr. Gerard who was face down on the floor. Her kicks did not connect. He observed injuries on both Kimberly and Robert. [ 8 ] On cross-examination by Mr. Evanchuk, Cst.

Rice confirmed that he made brief notes of the situation and mostly they pertained to the names of the medical personnel and others who were present. Cst. Rice has been a police officer for 16 years and certainly admitted that good notes are important. [ 9 ] That was the Crown’s case. The defence called no evidence. CROWN ARGUMENT [ 10 ] The Crown argues that all essential elements of the offence have been proven beyond a reasonable doubt. Counsel for the

accused admitted identity. The Crown acknowledges there are some inconsistencies in the evidence between Robert and Kimberly Gerard. The Crown acknowledges that both these witnesses admit to drinking and Robert Gerard drinking a lot. However, the Crown argued that both these witnesses testified in a very straightforward manner as to what they recall happening that day. The Crown also points out that on Cst. Rice’s observations alone an assault took place even if I were to disregard completely the evidence of the victims of the assault. Cst.

Rice testified he observed a man lying on the floor and being kicked by Mr. Proskie and Ms. Fogarty when he came upon the scene. [ 11 ] Ms. Pappas, who represents Marina Fogarty, points out that Cst. Rice did not make any observations with respect to the assault by Marina on Kimberly. Counsel also argued that Mr. Gerard was intoxicated and therefore not really clear as to what happened. He said he got a blow from the back but Ms. Gerard said that he had made threatening gestures to her and that is when Marina pushed Robert away from Kimberly Gerard.

She said this just doesn’t make sense especially given there were no problems up to this time and as a result, the Court should resolve any doubt in favour of Robert. [ 12 ] With respect to the assault on Kimberly, again defence counsel said that because of Kimberly’s drinking and taking medication, her ability to recall must surely leave the Court with a reasonable doubt and I should acquit on both. [ 13 ] With respect to Richard Proskie, the evidence at the Fogarty trial was applied by consent and both defence counsel were given wide latitude to cross-examine at the Fogarty trial. [ 14 ] Again the Crown asked the Court to accept the evidence of the three Crown witnesses, that Robert Gerard received a blow which knocked him over.

Ms. Gerard provided more details of what occurred and also testified that she was assaulted by Mr. Proskie when she was trying to protect her husband. The Crown suggested that Ms. Gerard was credible and careful in her evidence and that inconsistencies do not mean that people are not telling the truth. People are not a tape recorder and they will describe a situation differently. As well, the Crown again noted that even with Cst. Rice’s evidence alone, there is sufficient evidence that Mr. Proskie committed an assault on Mr. Gerard. [ 15 ] Mr. Evanchuk, on behalf of Mr.

Proskie, asked the Court to take judicial notice that Kimberly Gerard admitted that she had a

Schedule IV narcotic prescription which she was taking as well as consuming alcohol. Defence counsel suggested a number of reasons why the Court should not believe the evidence of Kimberly Gerard. In particular Mr. Evanchuk argued that Ms. Gerard testified this incident took about 15 minutes which is totally unreasonable; there were no marks on the wall and nothing in the apartment was significantly damaged. [ 16 ] Mr.

Evanchuk also points out the fact that Kimberly Gerard yelled out “they are fighting” and asks the Court to infer that it was a consent fight or that she is just wrong and lying about the incident. [ 17 ] With respect to Cst. Rice’s evidence, defence counsel asks the Court to question the truthfulness or the accuracy of Cst. Rice’s observations because it is not backed up by notes that were made at the time or shortly thereafter. There could well be some frailties with respect to memory and recall. Cst.

Rice had a lot going on at the time, more than he anticipated when he took the call and he just could, in fact, have gotten things wrong. Defence also says that Mr. Proskie was outside the apartment at the time the offence actually happened. As well, defence counsel says there is a history of some domestic discord and while this thought really wasn’t developed, I think I am to infer that the accused were protecting Kimberly or somehow it was a consent fight. THE LAW [ 18 ]

Section 265 of the Criminal Code defines the offence of assault and is worded 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; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on

reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. [19] Whether or not there has been an assault pursuant to s. 265(1)(

b) depends on the facts of the particular case. To be effectivethe consent to the assault must be freely given with appreciation of all the risks and not merely submission to an apparently inevitablesituation (see R. v. Stanley, (BC CA), [1977] 4 W.W.R. 578 (BCCA)). [20] In R. v. Cey, (SK CA), [1989] 5 W.W.R. 169 (SKCA), the Court dealt with the scope of consent as a resultof a charge of assault causing bodily harm arising out of the events in the course of an amateur hockey game.

In determining the scopeof implied consent, the Court must employ objective criteria and have regard to a number of factors including the setting of the game, theextent of the force employed, the degree of risk of injury, the probabilities of serious harm and whether or not the rules of the gamecontemplate contact. [21] In R. v. Jobidon, 1991 SCR 714, the Court talked about the common law limits on consent imposed for policy reasons andthese apply to assaults defined by this section.

The Court goes on to talk about consent being vitiated where adults intentionally applyforce causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. [22] In R. v. Paice, 2005 SCC 22 , [2005] 1 S.C.R. 339, the Court said serious bodily harm must be both intended andcaused for consent to be vitiated. ANALYSIS [23] Let us now examine the evidence. First of all I found the two complainants/victims called by the Crown to give theirevidence in a forthright manner readily admitting their consumption of alcohol.

Robert Gerard admitted he had consumed a considerableamount of alcohol and he did not try to minimize his consumption. He also admitted he did not have an exact recollection of everythingthat occurred. However, I accept that he was hit repeatedly by the accused Fogarty and subsequently by the accused Proskie withoutjustification. I do not accept that there had been any provocation or any sort of consent fight or defence of person. The evidence that Iaccept does not point to that. I admit that defence counsel only hinted at those types of defences. Ms.

Gerard also describes the repeatedkicking and throwing around of her husband. Given Mr. Gerard’s level of intoxication, I believe that he basically was hit and fell to thefloor and was unable to defend himself. Ms. Gerard yelled for help saying “they are fighting” but I find this comment was made in theheat of the situation and do not draw any inference from it that it was any type of consent fight between Mr. Gerard and Mr. Proskie orMs. Fogarty. Ms. Kimberly Gerard was in a panic as an agreeable visit, without warning, turned ugly. [24] The defence suggested that Ms. Gerard was drinking and taking

Schedule IV prescription narcotics at the same time. Somehow I am to infer from this that she was severely impaired and/or her testimony is false and/or that she is a very irresponsibleperson and should not be believed. I reject all of these suggestions. Ms. Gerard was a nervous witness. When she responded to thequestions of defence counsel, she took some time to formulate her answers. However, in response to Mr. Evanchuk’s questions, sheexplained that she had had several strokes and that is why she was on the medication. I find Ms.

Gerard took her time and answered allquestions in-chief and in cross-examination in a very careful and considered manner. Again, I find and accept she testified as to what shesaw and I believe her. [25] Cst. Rice came on scene when Mr. Proskie and Ms. Fogarty were still kicking Mr. Gerard. Ms. Fogarty’s kicks did notconnect. Again, Mr. Evanchuk suggested that because Cst. Rice did not make extensive notes of the incident his testimony is unreliableor should not be elevated and given more weight than a lay witness. However I note Cst.

Rice is a trained police officer and has beenwith Moose Jaw City Police for 16 years. He was on duty and sent by dispatch to this apartment complex. While Cst. Rice did not knowexactly what he was going to encounter and may have even been a bit surprised (he said this was a more serious situation than heanticipated), he quickly brought the situation under control and then was assisted by another police officer. I view police notes as an aidfor the officer. It certainly is good practice to take notes but I accept that each individual officer will know the extent of the note takingthat he needs to complete. If Cst.

Rice had been seriously challenged as to his recollection of events and wavered in his recollection, thennotes made at the time would or could be of assistance. However, that is not the case. Cst. Rice was very clear and exact in his

description of what he observed when he entered the apartment. This is different from drinking and driving cases where if an officer does not make note of the exact times and the sequence of events or the particular signs of impairment, it is very easy to forget this and perhaps confuse situations or not be particular enough in one’s evidence. [ 26 ] Cst. Rice was very clear and exact in his description of what he observed when he entered the apartment. He saw an assault taking place. This is not an unusual occurrence for a police officer. This was just over a year ago.

I have no difficulty accepting that a trained, experienced and sober police officer would be able to recollect the incident. Just because an officer does not make note of every observation in an investigation does not mean it did not occur or that the memory is wrong. As I have said, defence counsel can challenge the police officer’s evidence as they can with any witness through effective cross-examination or by calling another witness, including the accused. In no way am I suggesting that the accused must testify, but sometimes to mount a successful defence it is necessary. Therefore on the basis of Cst.

Rice’s evidence alone, I convict both accused of common assault on Mr. Gerard. [ 27 ] Ms. Gerard testified that when she was trying to get in-between her husband and the two accused that both accused kicked and punched her. The photographs bear out that she indeed suffered injuries. Her husband did not inflict them and they are not self- inflicted. I accept her evidence that both accused are therefore guilty of an assault on her as well.

Therefore in considering all of the evidence which I accept, I am convinced beyond a reasonable doubt that Marina Fogarty and Richard Proskie committed the assaults on Robert Gerard and Kimberly Gerard. I find them guilty on both counts on both Informations. M. Gordon, J