Her Majesty the Queen - v. -, 2014 SKPC 112

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 112 Date: August 26, 2014 Information: 35727957 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew Darin Shultz Appearing: Rob Parker For the Crown Jordan Hogeweide For the Accused JUDGMENT M.

GORDON , J [ 1 ] Matthew Darin Shultz is charged on a two count information that on December 28, 2013, at or near Moose Jaw, Saskatchewan did commit an assault on Chantelle Ashley Belanger contrary to s. 266 of the Criminal Code and knowingly utter a threat to Chantelle Ashley Belanger to cause death to Chantelle Ashley Belanger contrary to s. 264.1(1) (

a) of the Criminal Code . The Crown proceeded summarily. [ 2 ] The complainant, Ms. Belanger, was the sole Crown witness and Mr. Shultz testified on his own behalf. The only issue is whether the Crown has proved beyond a reasonable doubt the essential elements of the offences.

EVIDENCE [ 3 ] From the evidence the following is clear, the accused and complainant met in the summer of 2011 when both were working at the pork plant in Moose Jaw. Shortly thereafter they started “hanging around together” and dating. Ms. Belanger moved into the accused’s apartment. Subsequently they moved into a house on Laurier Street. They have a child who was born March 13, 2013. The complainant and defendant described their relationship in different ways. However it is clear there were difficulties throughout the relationship. There were different expectations and views of how each other should act.

Both agree the relationship was on and off, especially towards the end. The situation deteriorated and in approximately December 2013, the couple were not living together. Mr. Shultz had left with his personal belongings and was living at his parents’. [ 4 ] Mr. Shultz wanted to spend Christmas 2013 with Ms. Belanger and his child. Mr. Shultz comes from a family where despite their differences at other times, they come together for a picture perfect Christmas Day. [ 5 ] The complainant agreed to Mr.

Shultz spending Christmas with her and the child only to ensure that their daughter would have an appropriate first Christmas and there would be photos of her for later. She did not view this as a time of reconciliation with Mr. Shultz. In her opinion it was clear the relationship was over. [ 6 ] On the other hand, Mr. Shultz saw this as a part of a process of wanting to make it work. He “loved her and wanted to get back together”. Fortunately Christmas Day went well for them. However this truce did not last and problems resurfaced. On the morning of December 28, Mr.

Shultz testified he got up early to make breakfast for Ms. Belanger and the baby. Chantelle was up doing laundry. He noticed that they were low on certain food items needed for breakfast and said to Ms. Belanger that they should go grocery shopping. An argument erupted over grocery shopping and related matters. He was shocked that she did not want to be with him anymore and that she hated grocery shopping with him. Accusations flew back and forth. He wanted to talk so the reasons for separating would be clear to both of them. It is clear she did not want to talk. In her mind there was nothing to talk about.

Her calm demeanour while testifying supports the fact that this relationship was indeed in the past. [ 7 ] What happened next is where the difference in testimony lies. Ms. Belanger admits she was very angry and took the frying pan and banged it on the counter. Ms. Belanger said she heard Mr. Shultz on the phone and a reference to drugs. She told Mr. Shultz she wanted nothing to do with drugs. He was in her face screaming. She went to the bedroom and put Mr. Shultz’s clothing in a garbage bag and dragged it along with a duffle bag to the front door. She went back for another bag.

It was at this point she says the accused placed both his hands on her shoulders and shook her back and forth. He was swearing and calling her names and threatening to kill her. He pushed her into the counter and she lost her balance and fell. The child was crying. She went to the bedroom to play with the child and gave her a bottle and some toys. Ms. Belanger says at this time Mr. Shultz was in the kitchen gathering up his belongings. She claims he grabbed her shoulders, pressed his forehead into hers and said “you have no idea what I could do to you”. She says she was afraid and slapped Mr.

Shultz on the left side of the face. She claims Mr. Shultz said “if you hit me again bitch, I will fucking kill you”. She called her mom to come into the city to her place. The argument continued. The accused finally left. When Ms. Belanger’s mother arrived, Ms. Belanger went to the police station to make a complaint. After discussing the matter with the police, she said she wanted a few days to decide whether to press charges. [ 8 ] On cross-examination, Ms. Belanger repeated that as far as she was concerned their relationship was over. She allowed Mr.

Shultz to stay December 24 so the child could have presents for Christmas. She admits to texting Mr. Shultz December 29 to bring food for the dog and certain grocery items. Mr. Shultz did come to the house and deliver them. On December 30 the parties had arranged access and Ms. Belanger took the child to Mr. Shultz who was at his parents’. He gave her a $500.00 cheque for child support. [ 9 ] After an argument with Mr. Shultz on January 2 about rent obligations, Ms. Belanger advised Cst. Woods that she wanted to press charges. [ 10 ] Mr.

Shultz testified that he really wanted the relationship with Chantelle to work. It was very important to him to have a family Christmas. He says all was going well and on December 28 he got up early to surprise Chantelle with a nice breakfast. He says an argument erupted over grocery shopping and lack of food in the fridge. Mr. Shultz felt he was always being compared to Ms.

Belanger’s previous boyfriends who were better off financially than him. Chantelle told him she hated grocery shopping with him anddid not want to be with him. She was in his face and said “if you leave you will never see your child again”. She grabbed pans andyelled at him to get out. She went to the bedroom and grabbed the garbage bags that had his personal effects. Mr. Shultz had never seenher this angry. [11] Mr. Shultz testified by this time he had said he would leave voluntarily. He admits that they had fights like this before andthis was just a normal fight until Ms.

Belanger got very angry and was freaking out. She would not talk when he suggested they neededto work things out and speak calmly. Mr. Shultz testified he went into the bedroom to grab his belongings, returned to the kitchen andcalled a cab. He told Ms. Belanger to stay in the bedroom with the child. However he testified she was in his face, digging through hisbelongings. He tried to pull them away and she hit him with a closed fist on the side of the face and told him to get out. At this pointMs. Belanger kept telling him to “hit me”. [12] On cross-examination, Mr.

Shultz agreed that he had been out of the house for awhile but really wanted the relationship towork. He agreed that their family backgrounds and expectations and outlooks on life appeared to be very different. He admitted therewas a phone call the morning of December 28, but denied there was any reference to drugs. It is clear to Mr. Shultz now that Ms.Belanger did not want him there after Christmas. At the time he was caught off guard, confused and upset. He said they were both veryupset and what she was saying did not make sense to him. ARGUMENT [13] The defence had three arguments, namely:

(1) That the Court should apply the de minimis principle as outlined in R. v. Wiebe, 2001 SKQB 389, in that any physical contactbetween the two was so minor it should not attract a criminal sanction;

(2) The defence argued that if the Court finds the accused did utter threats, there was no evidence that he intended the threats to beintimidating (see R. v. O’Brien, 2013 SCC 2); and

(3) The defence argued that applying the analysis and principles in W.D. when considering all of the evidence should result in anacquittal. The defence argued that there could be ulterior motives on the part of Ms. Belanger which coloured her testimony. [14] The Crown replied that there was no evidence that supported the defendant’s theory of an ulterior motive “to deny access”. The Crown noted Ms. Belanger reported the incident to the police immediately. She took a measured approach and confirmed to thepolice a few days later that she wanted charges to proceed.

The Crown agrees that the Court needs to apply the principles in R. v. W.D., (SCC), [1991] 1 S.C.R. 742. The Crown emphasized that when all the evidence is considered, it is clear the parties hada very heated argument. Mr. Shultz was shocked as he had this perception of an “ideal family”. Mr. Shultz went too far. His wordswere intended to threaten and were in furtherance of physical altercation. The Court should convict. ANALYSIS [15] First of all, I find the only argument that has any merit is whether the Crown has proved its case beyond a reasonable doubt.

Therefore, I will only deal with the third issue raised by the defence as identified above. [16] This case involves a consideration of the principles enunciated in R. v. W.D., (SCC), [1991] 1 S.C.R. 742. The Ontario Court of Appeal in R. v. B.D., 2011 ONCA 51, reviewed and restated the law in relation to W.D. The Court emphasized thatW.D. relates to the Crown’s burden of proof with respect to the issue of credibility. W.D. does not apply and should not be applied toindividual pieces of evidence. In the within case, the actus reus of both offences was disputed in direct evidence given by the accused.

Therefore W.D. principles apply when considering the elements of the offences and defence when considering any conflicting evidencefavourable to the accused in relation to these elements. [17] A criminal trial is not a “credibility contest” where the judge chooses which side gave the better account or which side to

believe. W.D. makes it abundantly clear that the Court must consider the accused’s evidence in the context of all of the evidence. [18] In R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546, the Ontario Court of Appeal explained the secondstep as follows: ...

The jury is obliged to consider all of the evidence before arriving at their verdict and the putting of the stark alternatives of believingthe Crown evidence or the defence evidence excludes the legitimate possibility of being unable to resolve the conflicting evidence andaccordingly being left in a state of reasonable doubt on whether the Crown has proved its case. ...

It is not necessary for them to believe the defence evidence on a vital issue - but that it is sufficient if it viewed in the context of all ofthe evidence leaves them in a state of reasonable doubt as to the accused’s guilt. [19] The credibility of the witness is the most significant issue. It is clear that the trier of fact must apply the standard of proofbeyond a reasonable doubt to all of the evidence. In R. v. J.T., 2013 SKPC 213, Matsalla J. was faced with conflicting evidence in asexual assault case and applied the principles in W.D.

In reaching his decision, Judge Matsalla emphasized the importance of looking atall of the evidence and stating that if the trier of fact is unable to decide whom to believe, he must acquit. [20] There is ample evidence to conclude that Ms. Belanger and Mr. Shultz had different views of the status of their relationship atthe present and for the future. I accept that Mr. Shultz got up early to make a nice breakfast for the family. I accept there was a phonecall and then an argument about the lack of food in the fridge and grocery shopping as well as numerous other matters.

I accept thiserupted into an argument larger than the food issue. I find that both these individuals became very upset. In fact I find Ms. Belanger’stestimony is that she flew off the handle, erupted and banged the frying pan on the counter. I accept that Mr. Shultz was somewhat takenback at the intensity of this outburst and soon they were in a heated argument. I accept Mr. Shultz was preparing to leave and gatheringhis personal belongings which were mostly stuffed into garbage bags. The argument heats up again. I find that each of these individualswere yelling and swearing at each other. What else happened?

It is at this point, when I consider all of the evidence, that I cannot besatisfied beyond a reasonable doubt that the accused assaulted or threatened Ms. Belanger as she described. After examining all of theevidence and viewing the demeanour of the complainant and Mr. Shultz on the stand, I am left with a reasonable doubt as to the actusreus of the assault. [21] It is at this point I am unable, when considering all of the evidence, to make any sufficient findings of fact as to whathappened in the heat of the moment in this argument.

It seems to me both accounts could be equally true or equally false or acombination, which is more likely. However, that does not satisfy the criminal standard of proof. [22] I put no weight on the fact that the complainant took a few days after reporting this incident to the police to decide whethershe wanted to press charges. This is an incorrect practice too often used by the police in cases of “domestic or family assaults”. Thispractice should be actively discouraged. These sorts of cases are no different than any other case. The complainant contacts the policeand gives a statement.

It is up to the police as agents of the state to investigate and to determine if in their opinion there are reasonablegrounds to lay a charge. [23] Therefore, I find the accused not guilty on both counts. M. Gordon, J