R. v. Michell Date:, 2012 BCPC 151

Citation: R. v. Michell Date: 20120416 2012 BCPC 0151 File No: 91617 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. STANLEY FRANKIE MICHELL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. B. Caffaro Counsel for the Defendant: Mr. S. Tate Place of Hearing: Kamloops , B.C. Date of Hearing: July 22, September 2, November 9 and 10, and February 22, 2012 Date of Judgment: April 16, 2012

[ 1 ] Mr. Michell is charged with, in committing an assault upon Joseph Caron, causing bodily harm to him. The incident occurred at Kamloops Regional Correctional Centre while both men were incarcerated and housed on the protective custody unit. The commencement of the fight occurred in Joseph Caron’s cell. It was not witnessed by anyone until the end when Corrections Officer Jessica Lalonde came upon them. As a result of the fight, Mr. Caron suffered a broken jaw and Mr. Michell suffered almost no injury. [ 2 ] Credibility is the key in this case. Both Mr. Michell and Mr. Caron testified.

Their versions of the events are quite disparate. Mr. Caron testified that the issues between himself and Mr. Michell arose because Mr. Michell learned that Mr. Caron was in custody on sex offences. Mr. Michell said that the issues arose because of a dispute between the two men regarding a gambling matter. [ 3 ] The unit on which both of these men were housed is the protective custody unit. Typically sex offenders and offenders who have difficulties in other areas of the institution are housed on the protective custody unit. Mr. Michell said that he did not know at the time what Mr. Caron was in custody for. Mr.

Caron admitted that Mr. Michell was new on the unit at the time of the assault and did not know if Mr. Michell had somehow found out about the charges. He never observed anyone telling Mr. Michell about his charges. Mr. Caron said that he had told his roommate of his charges, but there is no evidence before me of who that roommate was or whether he in turn told Mr. Michell. [ 4 ] One of the witnesses who testified at the trial for Mr.

Michell was also charged with sex offences and was also on the protective custody unit. [ 5 ] It is obvious from inmate Trevor Luszcz’s evidence that at least some of the inmates were aware of Mr. Carons’ charges. [ 6 ] Mr. Caron said that poker was strictly forbidden at the institution and that he never played it himself. He said the guards keep a very watchful eye but both of the corrections officers who testified admitted that gambling was known to occur on the range.

One of those corrections officers had recovered from cell searches items which are commonly associated not only with playing poker but keeping score of who owes what to whom. [ 7 ] Trevor Luszcz, Samuel Chapman and Gregory Eli all testified that as inmates at Kamloops Regional Correctional Centre on that unit, they had played or observed poker being played. They all also confirmed that Mr. Michell and Mr. Caron played poker together. Mr. Caron was not credible. I accept and find that poker is played on the protective custody unit and Mr. Caron engaged in it. [ 8 ] Although all of the witnesses confirmed that Mr.

Caron played poker, that he played poker with Mr. Michell and that Mr. Caron was suspected of not playing fair, none of them corroborated the event described by Mr. Michell that led to the altercation in the cell. Mr. Michell described a rather confrontational end to a poker game. Each of the witnesses, Trevor Luszcz, Samuel Chapman and Gregory Eli testified that they were either playing or watching that particular game. None of them described a confrontation. The game appeared to have ended, as far as those witnesses were concerned, relatively peaceably. While Mr. Michell had a dispute with Mr.

Caron about the outcome of the game and about whether Mr. Michell owed Mr. Caron any money, it was something the two men kept largely between themselves. [ 9 ] Neither Mr. Michell nor Mr. Caron were particularly compelling about how the two men happened to be in Mr. Caron’s cell. Mr. Caron said that he had been looking around for the newspaper but had returned to his cell to watch television. Mr. Michell came in with the newspaper claiming to be bringing it to him. [ 10 ] Mr. Michell said that Mr. Caron invited him to his cell to watch the game and eat snacks.

They had the disagreement over the poker game earlier. Mr. Caron had invited Mr. Michell into the shower area where cameras cannot watch them in order to resolve the dispute. Mr. Michell said that he knew after they had met that matters were not resolved. Consequently, when Mr. Caron invited him to his cell to resolve their differences, he was prepared to go. Although he feared that he would take a beating at that time, he preferred to get it over with than have it hanging over his head. Neither man was terribly credible in this evidence. However, I accept that Mr. Michell was in Mr.

Caron’s cell to resolve their outstanding issues. [ 11 ] In any event, there is no dispute that Mr. Michell was in Mr. Caron’s cell. The next area of contention arises over whether the cell door was open or closed after Mr. Michell came in. Mr. Caron said that Mr. Michell pushed the door closed behind him on the pin. This means that it was not locked. Mr. Michell said that he left the door open. Corrections Officer Lalonde testified that she heard the scuffle when she was doing a cell check, looked in through the open door and closed it herself when she saw the two men in an altercation in the cell.

I accept her evidence that the door was open. [ 12 ] Corrections Officer Lalonde said that when she looked in the door she could fully see both inmates on the bottom bunk. One inmate was pinned to the wall by the other inmate, stopping him from moving. [ 13 ] Even with respect to how the two men were separated is not supported by the independent witnesses. Mr. Caron said “a bunch of guards” came in and broke them up. In fact, when Corrections Officer Matthew Shaw arrived, Mr. Michell was standing by himself and Corrections Officer Shaw at first assumed there were no other inmates in the cell with Mr. Michell.

He removed Mr. Michell, handcuffed him and escorted him to health care. There was no “bunch of guards” in the cell to break up the fight. [ 14 ] This brings me to the altercation itself. As I stated before, Mr. Caron said Mr. Michell assaulted him because of the charges Mr. Caron was facing. Mr. Michell said the altercation arose from a gambling debt. Mr. Caron said Mr. Michell came in with a newspaper under the pretext of giving it to him. He started the fight by punching Mr. Caron in the forehead without provocation. [ 15 ] Mr. Michell said they were sitting talking when Mr. Caron put his hand on Mr.

Michell’s thigh in a suggestive manner and said that their dispute (being the gambling debt) could be resolved in another way. Mr. Michell leapt to his feet and struck Mr. Caron. It would have been over at that point except Mr. Caron blocked Mr. Michell’s exit from the cell and the fight was on. I will come to the inconsistencies in Mr. Caron’s evidence regarding the punches in a moment but must pause here to say that it is this evidence which is most compelling from Mr. Michell. Even so many months after the attack occurred, he still presents as incredulous that such an overture

was made to him. Up to that point in his testimony, he presented as almost indifferent. His testimony regarding the altercation was very compelling. [ 16 ] Mr. Caron’s evidence was not compelling. There were a number of inconsistencies throughout his testimony. Among those were his descriptions of the three punches he received. In his statement to the police, he said that Mr. Michell first punched him with his right hand onto the left side of Mr. Caron’s face and then he punched him with his left hand onto the left part of Mr. Caron’s face in his jaw area and split his lip.

In his testimony at trial on July 22, 2011 he said that the first punch was high on the left hand side of his forehead. Then, when describing how many punches he received, he said the first punch was the one that broke his jaw. [ 17 ] For the second punch, Mr. Caron said that Mr. Michell pushed him back and struck him in the lower part of the jaw, and that’s when he felt his jaw break. He was pursued on this point and was insistent that it was the second punch that broke his jaw. In his statement, Mr. Caron said the second punch was on the left part of his face in the jaw area which split his lip.

Again, in his statement, he said it was the first punch that broke his jaw. [ 18 ] It is necessary at this point to address the relative size of these two men. Mr. Caron at the time of the altercation was 5 foot 9 inches and weighed 190 to 200 pounds. At the time of trial, he weighed approximately 180 pounds. Based upon the photographs, his estimate of 190 to 200 pounds seems low, if his present weight is 180 pounds. In any event, he was not small. There was some discrepancy about whether he was in fact 205 pounds at the time. I do not make much of this discrepancy. At the time of the altercation, Mr.

Michell was approximately 150 pounds. There was a significant size discrepancy. Mr. Caron agreed that he had an approximately 55 pound advantage on Mr. Michell at the time of the altercation. [ 19 ] I accept Mr. Michell’s evidence that Mr. Caron put his hand on Mr. Michell’s thigh, uninvited. I accept his evidence that Mr. Michell leapt up and punched Mr. Caron in response. I accept his evidence that Mr. Caron blocked Mr. Michell’s exit from the cell and that a fight ensued. I also accept Mr. Michell’s evidence that he was fearful Mr.

Caron was going to sexually assault him and that he fought as ferociously as he could to prevent that from happening. [ 20 ] As is often cited from the R. v. W.(D.) case, if I believe the accused, then I must acquit. I find that I do believe Mr. Michell and acquit him of the charge of assault causing bodily harm. ______________________________ S.D. Frame Provincial Court Judge