R. v. Tizzard, 2019 NLSC 146

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Tizzard , 2019 NLSC 146 Date : August 2, 2019 Docket : 201703G0052 Her Majesty The Queen v. Andrew Shawn Tizzard Before: Justice Kendra J. Goulding Edited Reasons for Judgment Given Orally Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Dates of Hearing: June 10, 11 & 12, 2019 Date of Oral Judgment: June 25, 2019

Summary: The Accused was charged with assault with a weapon (a glass) contrary to

section 267 (

a) of the Criminal Code and aggravated assault contrary to

section 268 . Due to significant inconsistencies in the evidence of the complainant and the credible statement given by the accused to the police officer, the Court found that the Crown had not proven beyond a reasonable doubt that the accused intentionally applied force to the complainant. Acquittals were entered accordingly. Appearances:

Ms. Tina M. Walsh Appearing on behalf of the Crown Mr. Derek P. L. Ford Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742; R. v. Mah, 2002 NSCA 99; R. v. Walia, 2018 ONCA 197; R. v. S.A., 2018 ONCJ 160; R. v.Budhoo, 2015 ONCA 912; R. v. Alcaraz, 2019 ONSC 151; R. v. Sullivan, 2011 NLCA 6; R. v. Williams, 2003 SCC 41; R. v. Godin,[1994] S.C.R. 484; R. v. Foti, 2002 MBCA 122; R. v. Payne, 2016 CarswellNfld 290, 132 W.C.B. (2d) 110 (Prov. Ct.); R. v.

Whitehorne,2005 CarswellNfld 276, 66 W.C.B. (2d) 731 (Prov. Ct.); R. v. Cunha, 2016 ONCA 491; R. v. Brushett (2014), 357 Nfld. & P.E.I.R. 289,117 W.C.B. (2d) 228 (N.L. Prov. Ct.). REASONS FOR JUDGMENT Goulding, J.: INTRODUCTION [1] A group of longtime friends were partying at the home of Andrew Downey which involved the excessive use of alcohol anddrugs by some of the attendees. An altercation occurred which on the preponderance of the evidence was instigated by the complainant,Michael Laing. The incident happened very fast and ended unfortunately with Mr. Laing suffering serious wounds to his face and neck.

Of the witnesses who testified at trial, only one was not under the influence of alcohol and/or drugs and this witness did not observe thefinal seconds when a glass held by the Accused came in contact with Mr. Laing or vice versa. As a result of the incident, the Accused ischarged with assault with a weapon (section 267(

a) of the Criminal Code) and aggravated assault (section 268 of the Criminal Code). issue [2] The Crown must prove the essential elements of the offences beyond a reasonable doubt. It is not disputed that the Accusedhad a glass in his hand and the glass and Mr. Laing’s face came in contact. The glass broke causing serious wounds to Mr. Laing. It isnot required that the Crown prove beyond a reasonable doubt that the Accused intended to wound Mr. Laing. However, the Crown mustprove that the Accused intentionally applied force to Mr. Laing.

This is the most contentious issue in this trial. what is meant by proof beyond a reasonable doubt [3] In R. v. Starr, 2000 SCC 40, the Supreme Court of Canada instructed that although proof beyond a reasonable doubt does notinvolve proof to an absolute certainty, it is much closer to absolute certainty than to a balance of probabilities. [4] In R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 the Supreme Court of Canada pointed out that it is not sufficientto conclude that an accused person is probably or likely guilty of an offence.

Such a conclusion demands that the accused be acquittedbecause it fails to satisfy the criminal standard of proof. The Court suggested in Lifchus that the meaning of the words “reasonabledoubt” might be explained in the following manner: A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances, you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [5] In R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada suggested that when there isevidence from the accused, the following analysis is appropriate: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [6] In R. v. Mah, 2002 NSCA 99, the Court explained the W.D. principle as follows: 41 The W.D. principle is not a "magic incantation" which trial judges must mouth to avoid appellate intervention.

Rather, W.D.describes how the assessment of credibility relates to the issue of reasonable doubt. What the judge must not do is simply choosebetween alternative versions and, having done so, convict if the complainant's version is preferred. W.D. reminds us that the judge at acriminal trial is not attempting to resolve the broad factual question of what happened. The judge's function is the more limited one ofdeciding whether the essential elements of the charge have been proved beyond reasonable doubt: see R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745; [2000] S.C.J. No. 57 (Q.L.) at 756.

As Binnie, J. put it in Sheppard, the ultimate issue is not whether thejudge believes the accused or the complainant or part or all of what they each had to say. The issue at the end of the day in a criminaltrial is not credibility but reasonable doubt. (emphasis added) case law cited by counsel [7] The decision R. v. Walia, 2018 ONCA 197, is not particularly helpful in this matter. It involves inconsistent verdicts followinga jury trial on charges of assault with a weapon and aggravated assault. The only live issue was whether the blow with a glass wasreflexive or intentional.

The inconsistent verdicts could not stand. However the Crown had not appealed the acquittal on the assaultwith a weapon charge and therefore both charges were dismissed by the Court of Appeal. [8] In R. v. S.A., 2018 ONCJ 160, Doody, J. was satisfied beyond a reasonable doubt that the accused was holding the knife whenit came into contact with Mr. Vallee, causing his injuries. However, the Justice was not satisfied that the accused voluntarily orintentionally stabbed Mr. Vallee. If the knife came in contact with the body by accident with no voluntary act by the accused to use it toapply force to Mr.

Valle, the accused could not be found criminally responsible. The Justice found Mr. Vallee could have fallen orstumbled or been pushed into the accused. Any of those possibilities was a reasonable inference based on the evidence. The charges ofaggravated assault and assault with a weapon were dismissed. [9] In R. v. Budhoo, 2015 ONCA 912, a new trial was ordered as the trial judge erred by 1) making factual findings therebyusurping the jury function, 2) by finding self-defence and accident were incompatible defences, and 3) by not considering other self-defence sections of the Criminal Code.

In this case, the accused had a two pronged defence that he acted in self-defence by brandishingthe knife and by continuing to hold it but he then accidentally stabbed the complainant. [10] The decision R. v. Alcaraz, 2019 ONSC 151, is not relevant as Alcaraz intentionally inflicted the stab wounds. The issue waswhether the Crown had proven beyond a reasonable doubt that Mr. Alcaraz was not acting in self-defence. [11] In R. v.

Sullivan, 2011 NLCA 6, the court found that the complainant’s consent to a fist fight was vitiated as a result of theaccused changing the nature of the fight when he used his knee to impact the complainant’s head. Welsh, J.A. referenced in paragraph23 the decision of R. v.

Williams, 2003 SCC 41, wherein Binnie, J. wrote that the mens rea required for aggravated assault is the same asthe mens rea for assault which is application of force intentionally or recklessly or being willfully blind to the fact that the victim doesnot consent plus objective foresight of the risk of bodily harm. [12] Two other cases cited by counsel, R. v. Godin, [1994] S.C.R. 484 and R. v. Foti, 2002 MBCA 122, are also authorities for theforegoing statement regarding the requisite mens rea. [13] In R. v. Payne, 2016 CarswellNfld 290, 132 W.C.B. (2d) 110 (Prov.

Ct.), the Court referenced both the Godin and Williamsdecisions and stated in paragraph 41 that the Crown must prove the accused intentionally applied force to the victim which resulted inthe victim being wounded and that the risk of this harm occurring was reasonably foreseeable. The Crown does not have to prove thatthe accused intended to wound the complainant, objective foreseeability is sufficient. [14] In R. v. Whitehorne, 2005 CarswellNfld 276, 66 W.C.B. (2d) 731 (Prov. Ct.), Gorman, P.C.J. stated in

part in paragraphs 44 to52 that an assault involves the touching of another person without their consent and that it be done intentionally. If the accused did notmean to apply force, he must be acquitted as carelessness or reflexive action will not suffice. The defence of accident is a denial ofhaving the necessary mens rea. [15] In R. v.

Cunha, 2016 ONCA 491, Lauwers, J.A., writing for the Ontario Court of Appeal, stated in paragraph 7, that it isaccepted that in considering the reasonableness of the accused’s use of defensive force, the court must be alive to the fact that people instressful and dangerous situations do not have time for subtle reflection. In paragraph 9, he stated that a person defending himself is notobliged to retreat in the face of danger. In paragraph 40, he cautioned regarding the danger of engaging in sheer speculation.

Inparagraph 47, he found the trial judge failed to take account of the entire situation from the accused’s perspective and failed to paysufficient attention to the factual context and the entire tableau of evidence. [16] In R. v. Miller, 2009 NSCA 71, the court outlined the essential elements of aggravated assault and found the trial judge did noterr in telling the jury that the accused intentionally applied force to the complainant as he testified he had pulled the complainant off thefloor and put his hands behind his back.

The trial judge made it clear to the jury that the pivotal issue was whether the thrusting of thecomplainant into the door was intentional or accidental. [17] In R. v. Brushett (2014), 357 Nfld. & P.E.I.R. 289, 117 W.C.B. (2d) 228 (N.L. Prov. Ct.), the accused stated she had mistaken

the complainant for another person. She explained someone had shoved her earlier in the evening and later, she felt a tap on her back, which made her angry. She responded by swinging her arm back towards whoever tapped her. She had a beer bottle in her hand during the swing and hit the complainant in the mouth. At paragraph 43, Porter, P.C.J. outlined that intentional, non-consensual touching is all that is required and convicted Ms.

Brushett. evidence and analysis [ 18 ] Constable Nicholas Clark testified that he attended at the hospital in Springdale at 2:30 a.m. on January 17, 2015 and observed Michael Laing in a very intoxicated condition. Mr. Laing was slurring his speech and refusing to listen to the nurse’s and Constable Clark’s directions to remain silent. [ 19 ] Constable Clark’s evidence gave the distinct impression that Mr. Laing was very talkative and incoherent. Constable Clark testified, “It was hard to make sense of what he was saying.” Therefore, Constable Clark departed and proceeded to the Downey home. He met Mr.

Tizzard who approached him and advised that Mr. Laing was trying to fight him and he did not mean to break the glass on Mr. Laing’s face, he was just protecting himself. I note this is an explanation offered by the Accused at the earliest opportunity and it is generally consistent with the voluntary statement given by Mr. Tizzard the following day. Constable Clark did not observe any signs of impairment from Mr. Tizzard. [ 20 ] Constable Clark also spoke to Andrew Downey who appeared quite intoxicated. For that reason, he did not take a statement from Mr. Downey until the next day.

Andrew Downey is friends with both Mr. Tizzard and Mr. Laing. He has a very poor recollection of what happened due to his level of intoxication and the passage of time. He testified Michael Laing put his hands up towards Mr. Tizzard but could not demonstrate how. He saw Mr. Laing shove Mr. Tizzard, he turned to shut his bedroom door and when he faced them again, there was blood everywhere. Before the blood, Michael Laing and Andrew Tizzard were punching each other, he saw their fists up and they were fairly close. [ 21 ] Many of the questions could not be answered by Mr. Downey.

He denied twice that any drugs were being used at the party. This is inconsistent with the evidence of Mr. Laing. He repeated on cross-examination that it looked like Mr. Laing shoved Mr. Tizzard first but could not remember much about it. He then stated he did not see either land a punch on the other. This is very different from the impression created by his earlier statement that they were punching each other. He recalled that Mr. Slaney tried to break them up. He does not remember if anyone was holding anything. I cannot comfortably rely on Mr. Downey’s evidence. It seems to corroborate the evidence of Mr.

Tizzard and Mr. Slaney that Michael Laing was the aggressor, that he initiated the confrontation. However, Mr. Downey could not demonstrate any of the motions that he referenced. [ 22 ] Michael Slaney was friends with both Mr. Laing and Mr. Tizzard but has minimal contact with them now. Everyone was drinking at the party except him. He considered himself the designated driver. He arrived around 9:00 p.m. and Mr. Tizzard arrived two to three hours later. Mr. Tizzard had one to two drinks whereas Mr. Laing had plenty of drinks. [ 23 ] He heard a commotion, loud voices and a verbal altercation.

It looked like it could get physical and he jumped in between Mr. Tizzard and Mr. Laing. He heard a smash and thought it was a picture frame. [ 24 ] He described Mr. Laing as “getting up into Mr. Tizzard’s face”. Mr. Tizzard was trying to push him off and grabbed his shirt to try to keep Mr. Laing away. They were physically close and Mr. Laing was up in the Mr. Tizzard’s face being aggressive and yelling at him. [ 25 ] Mr. Tizzard was saying to leave him alone. Mr. Slaney put his head down to avoid being hit and put his hands out on their respective chests. He did not see anything in their hands.

The highest he could see was their knees and he could feel movement. [ 26 ] Mr. Slaney described Mr. Laing as heavily intoxicated and getting rowdy. That he got into another altercation earlier and was saying things that were out of line. He agreed Mr. Laing was insulting, rude and quite irritable to more than one person that evening. [ 27 ] Mr. Slaney agreed they were leaned over and could reach each other and he was trying to keep them apart. He remembered Mr.

Tizzard saying after the smash that he forgot he had a glass in his hand. [ 28 ] Michael Laing testified he went to the Downey party at 6:00 p.m. or 7:00 p.m. He consumed six beer and seven or eight drinks, including shooters, and snorted cocaine or Percocet. He and Andrew Tizzard had been friends for a long time, about ten years. They were all hanging around and talking. He was getting pretty drunk and was just about to go home but was looking to do some more drugs as he believed it would help sober him up. He saw Mr.

Tizzard come out of the dining area, he heard a noise and then felt heat going down his chest, he looked down and saw blood. He was taken to the Springdale hospital and then to the Grand Falls-Windsor hospital for surgery. [ 29 ] Mr. Laing then testified he saw Mr. Tizzard carrying a beer glass, he thinks they had some exchange of words and he demonstrated with clenched hands some motions but said he was just “carrying on”. Later, he described his hands as open. He agreed he called Mr. Tizzard a prick. He denied having any intention to hurt anyone. Mr. Laing described seeing a swift motion of Mr.

Tizzard’s hand and a smash to his face. His memory is foggy but stated he never hit anyone or hurt anyone. He was just there. He agreed Mr. Tizzard never expressed ill will towards him. Mr. Laing speculated maybe the fact he was speaking to Mr. Tizzard’s ex- girlfriend had something to do with it. After the smash, Mr. Laing heard Mr. Tizzard say “oh my God” like he was in shock and then Mr. Tizzard prompted people to take Mr. Laing to the hospital. Mr. Laing testified he saw Mr. Tizzard swing the glass in an overhead motion and hit him and that was the only physical contact. [ 30 ] On cross-examination, Mr.

Laing testified he may have been walking around waving his hands and he demonstrated with his arms raised and his fists clenched. When the clenching was addressed by defence counsel, he replied that his hands were open. As cross-examination progressed, he agreed he may have called Mr. Tizzard names, such as “ya fucker” and “son of a bitch” and “prick”, but it was simply carrying on. Mr. Tizzard did not say anything, he just hit Mr. Laing. There was no one between them. Mr. Laing describes the up and down motion by Mr. Tizzard, then screaming by Mr. Tizzard, “oh my god”, in a shocked tone. Mr. Tizzard then

prompted people to give him a ride to the hospital. [ 31 ] Initially, Mr. Laing did not think they had any issues that evening but when he was reminded of his evidence at the preliminary inquiry that “maybe at one point Mr. Tizzard thought I was annoying him…”, Mr. Laing replied “yeah, might’ve been about drugs.” Mr. Laing testified he did drugs that evening and he saw Mr. Tizzard snorting drugs in Andrew Downey’s bedroom. At the preliminary inquiry, Mr. Laing indicated “maybe my arms were going, there might’ve been shoving too.” At trial, he stated, “no, I did not shove [Mr.

Tizzard], my hands were by my sides.” “I didn’t try to hit him. I know that. I can remember it 100%. I did not try to punch him.” Mr. Laing was sure he did not push Mr. Tizzard, if anything, Mr. Tizzard tried to push him back and forth and grab him. [ 32 ] Mr. Laing testified there were words exchanged, something to do with drugs, because Mr. Tizzard gave a line to somebody and not to him. It was dark in the hallway and the only light was in the kitchen. He saw Mr. Tizzard come at him with an overhand jump. He was asked if he remembered telling Constable Clark he did not remember Mr.

Tizzard coming at him (page 5 of his statement to Constable Clark) and saying “he was stood up right next to me and I guess he just went like that.” Constable Clark asked, “So you don’t remember him making a motion? You don’t remember seeing the glass?” And Mr. Laing answered, “I remember like the feeling” (in reference to the heat on his chest). At trial, Mr.

Laing testified, “Well, not the actual glass but like the motion of his arm in the light coming towards me.” [ 33 ] He was then questioned by defence counsel: Question: “The impression I got when I read that, honestly, was that you didn’t remember seeing Mr. Tizzard making a motion with the glass.” Answer: “Well he must’ve if there was impact on my face and glass on the floor and his arm making a motion.” Question: “Constable Clark said to you, ‘so you don’t remember like looking at him, seeing him do anything?’ And you said, ‘But I remember him standing next to me.’ [ 34 ] Mr.

Laing then agreed certain parts are a bit blurry. Again, Mr. Laing has a very poor recollection of the incident. He is inconsistent with respect to the most relevant and material issues and there is no reasonable manner to explain or reconcile the inconsistencies. The day after the incident, he informed Constable Clarke he did not see Mr. Tizzard do anything. At trial, he testified he saw Mr. Tizzard jump towards him while using an overhead swing and hitting him in the face with the glass. It is most unfortunate what happened to Mr. Laing. He is understandably upset and he blames Mr. Tizzard.

However, his evidence is not credible nor trustworthy and the Crown concedes this point. Mr. Laing was so intoxicated by alcohol and drugs on the date in question that he does not recall his own actions or any other person’s actions that evening. [ 35 ] As for the videotaped statement, Mr. Tizzard advised the officer that Mr. Laing was getting right up in his face and Mr. Tizzard said, “like what are you doing?” He tried to walk away to the hallway but Mr.

Laing kept pushing him and swinging at him so he just put his arms up to defend himself and he demonstrated this to the officer saying, “he’s swinging at me and I’m just like, stay away, like this you know, trying to get away and then I end up hitting him in the head with the glass and that’s when it broke and slashed my hands up.” [ 36 ] Mr. Tizzard repeated that Mr.

Laing “started swinging left and right and I was just dodging him” and “he was swinging and pushing and I was just trying to walk away like, get the hell away from that shit, I don’t want no trouble.” [ 37 ] He stated there were four or five swings and a couple of pushes by Mr. Laing that he put his arms up, he had a glass in his hand, and it just happened so fast. Question by the officer” “Why did you raise the glass up?” Answer: “I just had it in my hand. I just raised it like this as he was swinging at me and I was trying to block him to get away.” [ 38 ] At page 7 of the transcript, Mr.

Tizzard was questioned by the officer: Q. Can you describe when you brought the glass out exactly, like what happened? A. Like, I don’t remember, it happened so fast, like he was swinging and I was trying to defend myself, blocking it and just, I don’t know, it hit his head somehow. Q. Were you aiming for his head? A. No. Q. Were you trying to? A. I wouldn’t looking at all, I had my head down, just like, get away from me type of deal, going for the door and it just smashed.

[ 39 ] Page 9 of the transcript: Q. How many times did you hit him with the glass bottle? A. Like I said, I had my head down and I was just doing this like, get away from me and smash, like done. It must have hit his face and it disintegrated to nothing. I thought it hit the wall, I wasn’t tying to hit him. Q. So you’re saying you only hit him once with the glass? A. Like I said, I was blocking, defending myself. I wasn’t trying to hurt anyone, just happened to have the glass in my hand. [ 40 ] Page 12 of the transcript: Q. How much force was he using on you? A.

Like full fucking shoves and just ducking him, so ducking my head down trying to block him like you would. [ 41 ] Page 15 of the transcript: A. I didn’t haul off and whale him with the glass in my hand. It wasn’t no swing, I was like this, walking with my head down, walking backwards and he just kept swinging and I had my hand up walking like that, get way from me and I forgot I had a glass in my hand. [ 42 ] In viewing the statement, Mr. Tizzard is consistent and clear despite the officer trying to imply that he intentionally hit Mr. Laing. Mr. Tizzard’s demonstrations and his statements are credible.

Other evidence corroborates that Mr. Laing was very aggressive, that he was up in Mr. Tizzard’s face yelling and that Mr. Tizzard was telling him to go away. Mr. Tizzard did not want to engage in a physical fight with Mr. Laing, he just wanted to get away from Mr. Laing. Mr. Tizzard was not intoxicated and showed no signs of impairment to the officer shortly after the incident. Mr. Laing was his friend, there were no difficulties between the men that evening until Mr. Laing got out of control. [ 43 ] I accept that Mr. Laing kept pushing and swinging and this incident happened very fast, that Mr.

Tizzard put his head down with his arms up to block the assaultive actions of Mr. Laing. Mr. Tizzard did not intend to apply force to Mr. Laing, he was trying to prevent the application of force by Mr. Laing on him. [ 44 ] This is a very reasonable inference on this evidence that Mr. Laing’s motions towards Mr. Tizzard caused Mr. Laing to come in contact with the glass. Mr. Laing was moving very aggressively towards Mr. Tizzard, swinging and pushing and Mr. Tizzard with his head down and his arms flailing about in an effort to block Mr. Laing’s swings. I am satisfied that he was not trying to hit Mr.

Laing. [ 45 ] Mr. Tizzard does not have to prove this, the Crown has the burden of proof and given the Crown’s weak case and the credible evidence presented by the Accused through his cautioned statement to the police officer, I find the Crown has not proven the essential element of “intentionally” applying force beyond a reasonable doubt and the charges are dismissed. _____________________________ Kendra J. Goulding Justice