R. v. August Date:, 2015 BCPC 318

Citation: R. v. August Date: 20151113 2015 BCPC 0318 File No: 99198-1-K Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICKY ALEXANDER JAMES AUGUST REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. Frank Caputo Counsel for the Defendant: Ms. Genevieve Eliany Place of Hearing: Kamloops , B.C. Date of Hearing: October 13, 2015 Date of Judgment: November 13, 2015

[ 1 ] Mr. August is charged with assaulting Cheryl Jack contrary to s. 266 of the Criminal Code . [ 2 ] Ms. Jack and Mr. August were in a domestic relationship. She and Mr. August were living together with a roommate, Trevor Bowes. They had been dating for three months but had been fighting frequently. Ms. Jack said that she had been trying to break up with Mr. August a few times but he did not want the relationship to end. [ 3 ] On December 2, 2014, Mr. August and Ms. Jack were together. Ms. Jack tried to break up with Mr. August. They were arguing and she wanted him to leave. They had been consuming alcohol.

About 3:00 a.m., she told Mr. August to leave. He refused to go. Ms. Jack said that they were screaming at each other. [ 4 ] Ms. Jack went into her room to go to bed. Mr. August followed her. She was on the bed and he came up behind her. The argument was continuing. Ms. Jack said Mr. August became angrier, grabbed her by her neck and threw her on the bed, choking her. He swore at her and called her names. She said she was trying to get his hands off her neck. He head butted her and bit her face. [ 5 ] She said she ended up from a kneeling position to a lying position on the bed.

She was quite fearful because he is quite a bit bigger than her. He head butted her four or five times, while his hands were still around her neck. When he stopped head butting her, he bit her cheek. [ 6 ] When Mr. August released her, Ms. Jack ran to her roommate for help. She had been trying to call the police but Mr. August had taken her phone. He left and did not return. In fact, the phone belonged to Mr. August. Ms. Jack conceded in cross examination that the cell phone was Mr. August’s phone because hers may have been broken at the time. [ 7 ] When challenged why Mr. Bowes did not hear the screaming, Ms.

Jack testified that he was in his room watching a movie with his headphones on. [ 8 ] There are photographs taken from the incident. Ms. Jack has a large ring on her cheek that looks very much like a bite mark surrounding a significant bruise. She has some marks on her neck but they are difficult to distinguish from her eczema. This is consistent with Mr. August holding her down as opposed to choking her. There is a significant bruise on her forehead between her eyes, where she says she was head butted. [ 9 ] In cross examination, Ms.

Jack was constrained to a certain part of her statement to the police where she said that she could not remember why they were arguing. However, she pointed to parts of the statement to indicate that she had told the police Mr. August punched her several times and head butted her. It was suggested to her that she only asked Mr. August to leave after the argument “went wrong” but Ms. Jack insisted the whole argument was about her wanting him to leave. [ 10 ] Mr. August testified that he had just got off work and went home. He acknowledged that they had a few fights and that they broke up a few times.

He started drinking with Ms. Jack and Mr. Bowes when he got home. [ 11 ] Ms. Jack was in a good mood when Mr. August first got home. They watched some movies and had a few drinks. He acknowledged that they had a lot to drink. [ 12 ] Mr. August said the argument started around 1:00 a.m. Ms. Jack wanted to break up but they had just spent the whole evening planning Christmas. Then Ms. Jack got mean towards to Mr. August and the argument escalated. He claimed that she called him pathetic and useless and made fun of his schizophrenia. When she would not stop, he got mean himself. [ 13 ] Mr.

August said the argument lasted about an hour to an hour and a half. He does not recall that she asked him to leave. He acknowledged that she may have asked him to leave once. However, it was -20° that night and he had no place to go. [ 14 ] Mr. August testified that the fight became physical in the bathroom. She pushed him and he stumbled back and then head butted her. He claimed that he lost his nerve, leaned toward her and hit her in the head with his head. By losing his nerve, he meant losing his temper. [ 15 ] He said he then went to the living room to the couch. She went to the bedroom.

That was when she asked him to leave. So it seems there is no dispute on the evidence that Ms. Jack asked Mr. August to leave. Evidently, Mr. August followed Ms. Jack to the bedroom. He told her he was trying to find a place to go. He said she started “freaking out on me” and pushed him again. He was afraid she would punch him so he pushed her shoulders back. He acknowledged that he was holding her shoulders because he was concerned she would punch him. Mr. August said she has beaten him up before. He said they fell on the bed. He said he landed beside her and she tried to gouge his hands.

He said he put a hand on her, not two. He did not recall the bite. [ 16 ] Mr. August said he was very intoxicated as was she. However, he claims to remember the entire evening and night. He had no injuries from the incident. [ 17 ] Mr. August claimed that Ms. Jack tried to gouge his eyes out. He said she was on her back and put her hands up and pressed really hard. He acknowledged that he had no redness in his eyes from this nor any difficulties with his vision. [ 18 ] Mr. August acknowledged that he takes medication for his schizophrenia and that he is not supposed to drink when takes it. [ 19 ] Mr.

August acknowledged he weighs approximately 100 pounds more than Ms. Jack. [ 20 ] Mr. August said he put his hands around her neck. He claimed he was not a violent drunk except in this case. He acknowledged he did not have to push her away as hard as he had and that he could have walked out the door. He agreed that the bite could have happened as described by Ms. Jack and acknowledged that his memory was not as good because of the alcohol he had consumed. Later in

his cross examination he was insistent that he did not bite her. I do not believe him. [ 21 ] On cross examination, Mr. August amended his evidence to say that Ms. Jack pushed him in the direction of the shower. He came back at her with two head butts. He acknowledged he could have just walked away. [ 22 ] Mr. August acknowledged that when he was on the bed his knees were to one side of Ms. Jack with his weight on her from his one hand while he was trying to remove her hands from his eyes.

He agreed that because he was on top he had the upper hand and he understood that she was just trying to get him off of her. [ 23 ] Ms. Eliany argued that the fight was consensual. She referred to R. v. Swaine , [1999] O.J. No. 3457 . In that case, the husband and wife had been involved in a domestic argument. He too was considerably larger than his wife. His wife swung at him numerous times and would not let him leave the room to avoid the argument. She pushed him in the shower and was verbally abusive. The argument continued for two and a half hours. During the course of the argument, Mr.

Swaine grabbed his wife by the throat and threatened her. [ 24 ] Mr. Swaine was acquitted. It is clear from the decision that Mrs. Swaine did not remember some significant parts of the incident and the court was unable to establish what had actually happened during the course of the disagreement. The court concludes at paragraph 19: [19] In terms of the assault, when I consider the totality of this picture, unfortunately, it is domestic assault. It's very damaging. It has a lot of emotional damage attached to it and it's affecting those children, unfortunately, it's affecting the parties.

But I have to go by the rules and I don't have an assault here, legally speaking. I am not convinced beyond a reasonable doubt that an assault within the meaning of the law was committed here. Those are the rules I have to play by. I'm not a psychiatrist. I'm not a preacher. I'm not here to resolve the moral dilemmas of people. Unfortunately, I can't solve too many of the world's problems, only the occasional one once in awhile. Today is not one of those days. So that's my reason with respect to the assault and that charge will be marked dismissed. [ 25 ] That is not the case I have before me. I found Ms.

Jack to be a compelling witness. She may have forgotten a

chapter of this argument that occurred in the bathroom or perhaps it never happened in there. However, I am satisfied that the assault occurred in the bedroom after she had told Mr. August to leave. Rather than leaving, he trapped her on the bed, forced her down with one hand or two. He head butted her and then bit her on the cheek. [ 26 ] I find that Mr. August’s version of events is reconstructed, lacks objective support and comes against a backdrop of an uncertain memory. I do not believe him. [ 27 ] Ms. Jack was largely clear in her recollection.

The photographs taken of her injuries are consistent with her version of the events. I am satisfied that this was not a consensual fight. Certainly the argument was consensual, the parties were intoxicated, and both of them said inappropriate things to one another. There may even have been consensual pushing and shoving. However, what occurred in the bedroom was not a consensual fight coming as it did with such violence and disproportionate force after being asked to leave. [ 28 ] I am satisfied that the Crown has proved the case beyond a reasonable doubt and convict Mr. August. ___________________________ S.D.

Frame Provincial Court Judge