R. v. Pottle, 2021 NLSC 144

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation: R. v. Pottle, 2021 NLSC 144 Date: November 4, 2021 Docket: 201801G8684 Her Majesty The Queen v. George Pottle Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: October 5, 6, 7, 8, 14, 2021 Appearances: Jeffrey A. Summers Appearing on behalf of the Crown Robert W. Buckingham Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Janvier, 1979 ALTASCAD 27 , 1979 CarswellAlta 166, [1979] A.J. No. 251 (S.C. (App.Div.)); R. v.

Dewey, 1999 ABCA 5; R. v. Dixon, 1988 CarswellYukon 38, [1988] Y.J. No. 774 (C.A.); R. v. Moquin, 2010 MBCA 22; R.v. L. (C.), (ON CA), 1999 CarswellOnt 2700, 124 O.A.C. 45; R. v. Giroux, 1995 ABCA 393; R. v. Richard (1992),

(NS CA), 72 C.C.C. (3d) 349; 1992 CarswellNS 23 (C.A.); R. v. McRae, 2013 SCC 68 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canada Evidence Act, R.S.C., 1985, c. C-5 TEXTS CONSIDERED: Watt, J., Watt’s Manual of Criminal Evidence, (Thompson Reuters Canada Limited, 2017) at 317 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] George Pottle stands charged with assault causing bodily harm, assault with a weapon and uttering threats to cause death, orbodily harm. The complainant is his former common law partner, Jamie Maher.

All offences are alleged to have occurred in Mr.Pottle’s garage, next to his house, and/or in his home, at 119 Bay Bulls Road, St. John’s during the morning and evening of 8 April2018. [2] Specifically, it is alleged that during a heated argument Mr. Pottle choked and head butted Ms. Maher, while threatening to killher and that he threw a beer bottle, or bottles, at her. It is also alleged that he grabbed and pushed her, bruising her arms and legs. The evidence [3] The Crown called Ms. Maher, and three Royal Newfoundland Constabulary (RNC) officers, one of whom took photographs ofMs.

Maher just after midnight on 10 April 2018. The defence called Mr. Pottle’s son, who is now 14 years old, but was age 10 at thetime. While not obliged to do so, Mr. Pottle also testified in his own defence. There were no third party eyewitnesses to what transpiredin the garage, or the home, although Mr. Pottle’s ten year old son overheard arguing. [4] Ms. Maher and Mr. Pottle have a shared recollection of some of the events of 8 April 2018 and the following morning. Inother respects, they

part company. In my review of the evidence, I will identify the areas of agreement and disagreement. The Day in General [5] It is common ground that in April 2018, Mr. Pottle and Ms. Maher were in a common law relationship. Ms. Maher and hertwo children, now ages 9 and 13, were living with Mr. Pottle’s son, then age 10, in Mr. Pottle’s residence at 119 Bay Bulls Road, St.John’s. There is a detached garage on the property and a long driveway leading to the road. At the time, there was an Ultramar gasstation across the road, directly opposite the driveway. [6] Both Ms. Maher and Mr.

Pottle would agree that the morning of 8 April 2018 did not get off to a good start. Mr. Pottle arrivedhome from his shift as a firefighter around 8:00 a.m., to find Ms. Maher lying down and the house “up to your eyes”; a “pig sty”, in hiswords. Ms. Maher acknowledged that the house was a “mess”, explaining that one of her sons was sick the night before. The twoargued, and according to Ms. Maher, Mr. Pottle began to berate her, calling her lazy and good for nothing. For her part, Ms. Maherthought she could smell alcohol on Mr. Pottle’s breath and accused him of infidelity.

These accusations were adamantly denied by Mr.Pottle. Both agreed that the accusation of infidelity was not new and continued to be a source of tension throughout the day and into theevening. [7] In turn, Mr. Pottle harboured his own suspicions. Namely, that Ms. Maher was engaging in sex for money, as, in his view, shewas out at all hours and on occasion would have cash that he could not account for. This suspicion was to surface during an altercationbetween the two later that evening, when Mr. Pottle asked Ms. Maher if she “sucked dick for money.” [8] Mr. Pottle alleges that Ms.

Maher performed oral sex on him after he got out of the shower that morning. This is denied byMs. Maher. It was her evidence that Mr. Pottle asked her to put his penis in her mouth and when she refused he grabbed her and pushedher against the bed, bruising her legs.[1] [9] The two proceeded to clean house, after which Mr. Pottle was to spend the remainder of the day boiling down maple syrup inhis garage and drinking beer. While the parties disagree on who made the purchases, they agree that several “cases” of beer were boughtfrom the Ultramar across the road from Mr. Pottle’s residence.

The first case was purchased at around 11:00 a.m., the second just beforesupper, and a third before the Ultramar closed at 11:00 p.m. [10] After cleaning house, Mr. Pottle went to pick up his son from his former spouse, with whom he shared access. At some pointduring the afternoon, Ms. Maher took Mr. Pottle’s vehicle to get groceries. According to Mr. Pottle, shortly after returning, she set aboutagain, this time looking for Ritalin. She took his truck and did not return until suppertime. This alleged search for Ritalin was denied byMs.

Maher. [11] The day was otherwise unremarkable, save for the fact that tensions remained, as the two periodically exchanged insults andaccusations. Ms. Maher described Mr. Pottle as “nasty” during the day. The scene was far from harmonious. [12] Mr. Pottle barbecued supper, and by all accounts mealtime with the children appears to have been civil. According to Ms.

Maher, Mr. Pottle was by now “pretty intoxicated.” This is denied by Mr. Pottle. Ms. Maher continued to be suspicious and after supper she accused Mr. Pottle of spiking the beer she was drinking. She poured it down the sink, got another, and accused Mr. Pottle of spiking that one as well. When she poured it out as well, she next accused Mr. Pottle of spiking her water. For his part, Mr. Pottle denied that Ms. Maher made such an allegation, or that he added anything to her water, or beer. He testified that he did not see her pour beer down the sink at that time. The Garage [ 13 ] Both Ms. Maher and Mr.

Pottle agree that sometime after supper, while in the garage, Ms. Maher ended up with a bloody nose and the injury was caused when their two heads collided. They also agree that Mr. Pottle removed his shirt and went into the house and returned with a towel to stop the bleeding. They further agree that beer bottles were broken. They

part company, however, on when and how Ms. Maher received her injuries, and how the bottles came to be broken. [ 14 ] According to Ms. Maher, sometime between 8:30 and 9:00 p.m. she went to the garage for a cigarette, at the request of Mr. Pottle. It was raining out. While in the garage an intoxicated Mr. Pottle once again started to berate her and call her names.

She asked him what was wrong, but before she could finish her cigarette, he pushed her into the corner of the garage by the side door, grabbed her around the throat for 2-3 minutes (she is “pretty sure” that he used both hands) and deliberately struck his forehead off her nose (the “head butt”), breaking her nose and causing it to bleed. She then picked up a wrench to defend herself, but he wrestled it away and threw it at the garage door. She instinctively ducked, but did not say that the wrench had been thrown at her.

He then held his hand across her face, saying, “I don’t give a fuck about your nose.” When asked if Mr. Pottle said anything while she was being choked, her initial reply was “I don’t know”, but he was saying nasty things and that it was “my fault.” With her memory refreshed after reviewing her testimony at the Preliminary Inquiry, Ms. Maher testified that Mr. Pottle said that she “drove him to this” and that “he was going to kill me.” [ 15 ] Photos were entered into evidence, taken the following day by Ms. Maher’s mother, but in Ms. Maher’s presence. These show the bloodied shirt and towel, and what Ms.

Maher described as blood from her nose on the garage floor, and several pieces of broken beer bottles. When shown these photos, Ms. Maher testified that Mr. Pottle had thrown beer bottles at her during the altercation. [ 16 ] According to Ms. Maher the two then remained in the garage for several hours, where they “discussed” their relationship and continued to argue. The provision of money for groceries was now added to the list of grievances. For his part, Mr. Pottle suspected Ms. Maher of providing sex for money. Both agreed that he said to Ms. Maher, “Can I ask you question?

Do you suck dick for money?” [ 17 ] Mr. Pottle’s version of events differs in some key respects. According to Mr. Pottle, the two were in the garage after supper boiling down the maple syrup and drinking beer. Ms. Maher was also snorting Ritalin. This is denied by Ms. Maher. The two discussed getting more beer and just before the Ultramar closed at 11:00 p.m., Ms. Maher walked down for another case. After returning, Ms. Maher again accused Mr. Pottle of infidelity, saying his “girlfriend” was parked at the end of the driveway.

He then insisted that the two walk down the driveway, to prove that there was nobody there. In his words, they then walked “hand in hand” toward the road, where it was confirmed that there was no car. However, Ms. Maher’s phone then received a text message and she started to walk away. When she did, Mr. Pottle suggested that they continue a bit further (to be doubly sure there was nobody present) and held out his hand, but she refused. At this point, when she was 15-20 feet away, he accused her of “fucking someone else”; of “whoring” herself out. In turn, she called him a “cocksucker” and a “pedophile”.

As he continued to walk down the driveway, he was struck in the back of the head by a 3-4 inch rock thrown by Ms. Maher. [ 18 ] It was Mr. Pottle’s evidence that the two then retreated to the garage with Ms. Maher in the lead, yelling and screaming. According to Mr. Pottle, as he entered, Ms. Maher was initially back on to him. She then turned around, holding up a 12-inch crescent wrench. He grabbed for the wrench, pushed her back and “while wrestling for the wrench Jamie Maher’s nose struck my head.” He denied placing his hands on her neck, of deliberately head butting her, or threatening to kill her.

The time was between 11:30-12:00 p.m. He then removed his shirt and went into the house to retrieve a towel, in an effort to stop the bleeding. [ 19 ] Mr. Pottle agreed that beer bottles were broken during the altercation, but he denied throwing anything at Ms. Maher. [ 20 ] The two stayed in the garage another 12-15 minutes after which they returned to the house. According to Mr. Pottle, as they did, Jamie was calling me a “cocksucker”, a “diddler”, that “she was going to have my son”, and that I “was going to lose my job.” The House [ 21 ] According to Ms.

Maher, upon returning to the house her nose was still bleeding, so she went in the bathroom and closed the door. Mr. Pottle followed her and when she would not open the door, he broke it. They continued to argue and Mr. Pottle again put his hands around her neck. While in the bathroom, her cell phone was in the pocket of her coat. Ms. Maher testified that Mr. Pottle tore the phone from her coat, ripping her pocket in the process, and then threw the phone in the toilet. (A photograph of Ms. Maher’s coat, taken the following day, and showing a torn pocket, was entered in evidence). All the while Mr.

Pottle’s 10-year-old son sat on the living room couch with a blanket over his head. She asked him to call 911, but he did not respond. However, after the bathroom incident she went to Mr. Pottle’s son in an effort to comfort him. At some point later, Mr. Pottle threatened to leave with his son in his truck, but he couldn’t find the keys. [ 22 ] She obtained ice from the freezer for nose and spent time talking on the phone with a friend. (It is not clear whether the house phone was used, as Ms. Maher’s cell phone was out of commission.) Eventually she fell asleep on the couch.

She was awakened the following morning as Mr. Pottle went looking for the remote for the mini split. [ 23 ] When Ms. Maher awoke she proceeded to take beer out of the refrigerator vegetable crisper and pour it down the sink. According to Ms. Maher, Mr. Pottle then once again assaulted her, putting his hands around her neck, saying, “shut the fuck up you loud mouthed bitch.” [ 24 ] Eventually Mr. Pottle left with his son. Ms. Maher then called her mother, and together the two loaded her car with Ms. Maher’s belongings.

When leaving she took a laptop computer as leverage, so that she might be assured the return of her remaining

belongings. For this she was subsequently charged with theft under $5,000, convicted and received an absolute discharge. [ 25 ] Her mother drove her to St. Clare’s Hospital where her injuries were assessed, her nose was x-rayed and the RNC notified. RNC Constable Steven Traverse testified that he was dispatched to the hospital at 10:34 p.m. on 9 April 2018. He met Ms. Maher and recalled that she then had a swollen nose and marks on the right side of her neck. She cried a bit during his dealings with her, but there was no evidence of intoxication that he recalled. After Ms.

Maher was medically cleared at 11:30 p.m., he conveyed her to RNC headquarters. [ 26 ] While at the headquarters, Ms. Maher was interviewed and photographs were taken by Constable Allyson Stuckless of the Forensic Identification Unit. These were entered into evidence. [ 27 ] They show a bruising on the bridge of Ms. Maher’s nose, bruising on her lip, what appears to be a red mark or bruise on her neck and various bruises on her arms and legs. Ms. Maher testified that the injury to her nose, lip, mark on her neck and bruising were caused by Mr. Pottle during his attacks.

She was not sure whether the bruises on her right inner arm were caused that day, or sometime previous. [ 28 ] Mr. Pottle agreed that Ms. Maher entered the bathroom with him in pursuit, as he wanted to see who was trying to reach her on her phone, but denied that he damaged the door. He conceded that he was “fed up” but denied that he was angry. The two continued to argue and he continued to demand to see her phone. According to Mr. Pottle, at this point, Ms. Maher wrestled a handgun from her jacket pocket, tearing it in the process, and pointed it at his forehead. [ 29 ] Mr.

Pottle testified that he knew the handgun was an air pistol, as he had retrieved it from Ms. Maher a week prior, when she was undergoing assessment at the Waterford Hospital. (I will have more to say about this later.) [ 30 ] He responded by grabbing her phone from the bathroom counter and throwing it in the toilet. She then laid the gun down, while she retrieved the phone. While she was looking for rice (presumably to dry the phone), he again grabbed the phone and this time threw it over the garage, into the upper garden, saying, “go get your fucking phone.” According to Mr.

Pottle, he threw the phone to create a window of opportunity to hide the gun. While Ms. Maher was looking for her phone, he hid it in the basement rafters. [ 31 ] Mr. Pottle testified that Ms. Maher next turned on his son. While outside having a cigarette he could see through the window that she had him in the corner of the living room, and was “up in his face” screaming that his father was a “fucking psychopath”, a “didler”, and a “pedophile.” He testified his son was screeching his eyes out. Mr. Pottle testified that he pushed Ms.

Maher off and carried his son into the bedroom, where he said, “Dad, she got to go.” [ 32 ] According to Mr. Pottle, Ms. Maher then came into the bedroom and tried to remove his son, saying you’re “not staying with your dad.” He pushed her off, saying, “get the fuck out of my house.” Mr. Pottle then barred the bedroom door with a dresser to keep Ms. Maher out and eventually he and his son fell asleep. [ 33 ] According to Mr. Pottle at some point before retreating into the bedroom he put his son in his truck. He did not have the keys, however, and eventually his son got cold.

His son was also complaining that his foot hurt from the alleged assault by Ms. Maher. [ 34 ] The following morning, as the house was very hot, he went looking for the remote for the mini split. Ms. Maher was asleep on the couch. As he reached for the remote, she slapped his hand and immediately started swearing again. [ 35 ] According to Mr. Pottle she again grabbed his son, saying that he was not going with his father and then proceeded to jump up and down on his son’s iPad, smashing it in the process. Mr. Pottle responded by reassuring his son, “I said son, it’s just stuff.” Ms.

Maher then took his son’s iPhone, and when his son said it was his she said, “I don’t give a fuck. Your father broke mine.” [ 36 ] The confrontation continued and according to Mr. Pottle, as he was leaving the house with his son, Ms. Maher remained, smashing beer bottles in the kitchen. [ 37 ] He then drove his son to his parents’ house and went for a further drive to clear his head. When he returned, there was nobody present. [ 38 ] For her part, Ms. Maher acknowledged that Mr.

Pottle’s son was in the living room during the altercation in the bathroom and that she broke his iPad in retaliation for the loss of her phone. She denied assaulting him that evening, or the morning following, saying that her only motive was to provide comfort. Mr. Pottle’s Son’s Evidence [ 39 ] Mr. Pottle’s 14-year-old son was called by the defence. He was just 10 years old at the time and fortunately did not bear witness to the altercation in the garage or the bathroom. He was, however, sitting on the living room couch when his father and Ms. Maher entered “from the garage” shouting and arguing.

The event was no doubt very traumatic for such a young boy. His response was instinctive, to pull a blanket over his head. [ 40 ] Apart from confirming the verbal confrontation, he testified that Ms. Maher smashed his iPad and assaulted him in the living room that evening and again the following morning.

His evidence in this regard essentially mirrored that of his father. [ 41 ] When asked if his dad was drinking that day, his response was that he was “not sure if dad was drinking, but probably.” After the event, he acknowledged that he talked “a little bit” about what happened with his father, and there was some family discussion afterwards. [ 42 ] Mr. Pottle’s son’s answer to the defence’s first question is telling. When asked his father’s name, he responded, “Dad is a great man in my opinion.”

[ 43 ] Mr. Pottle’s son presented as an intelligent young man with an understanding of what it means to tell the truth. I accept that his evidence was honestly given, based on his present recollection of what he now believes happened on the day in question. However, there has been ample opportunity for distortions of what actually happened to enter his consciousness. How did he know, for example, that his father and Ms. Maher came in “from the garage” unless he had been told? It leaves me to question, what else has he been told or overheard about the evening in question. [ 44 ] In addition, Ms.

Maher was very upset that evening and I can easily see with the passage of time, how her overtures toward him might be misconstrued. [ 45 ] In

summary, what I take from his evidence is confirmation that Mr. Pottle and Ms. Maher were arguing, an event traumatic enough for a young boy to remember, and that Ms. Maher broke his iPad, as confirmed by her. He did not witness what occurred in the garage or bathroom. The alleged attack on him is, in any event, collateral to what transpired between Ms. Maher and Mr. Pottle. It is the collateral fact rule to which I now turn. analysis The Collateral Fact Rule [ 46 ] During the cross-examination of Ms. Maher and direct examination of Mr.

Pottle, matters were raised by the defence which offend the collateral facts rule. These matters were neither material, nor relevant, to the real issues of this case. [ 47 ] The collateral facts rule prohibits the introduction of evidence for the sole purpose of contradicting a witness concerning a collateral fact. In the words of one author, “It endeavours to ensure that the sideshow does not take over the circus.” [2] [ 48 ] As a general rule, answers given by a witness to questions put on cross-examination concerning collateral matters must be treated as final and cannot be contradicted by extrinsic evidence.

Extrinsic evidence may be used to contradict a witness on a substantive issue, but not solely for impeaching the witness’s credibility in general. While there are exceptions to the rule, none are applicable here. [ 49 ] The following are examples of collateral facts, to which the Crown rightly objected. They were proffered for the sole purpose of undermining Ms. Maher’s credibility in a general way and are neither material, nor relevant, to the events of 8 April 2018. • Ms. Maher was cross-examined on whether she had accidentally rear ended Mr. Pottle’s vehicle in his driveway some weeks prior.

She denied having done so. The defence then led evidence from both Mr. Pottle and his son of such an accident. Evidence was not led, however; nor was Ms. Maher cross-examined on whether her nose was injured. Such evidence, if it existed, might be relevant to the nature of Ms. Maher’s injury on 8 April. Otherwise, whether or not this accident occurred is irrelevant to what happened on that date. • During cross-examination Ms. Maher agreed that she had been taken to the Health Sciences Centre by Mr. Pottle, the week prior, and was referred to the Waterford Hospital, as she was having suicidal thoughts.

When it was suggested that she was obsessed over Mr. Pottle’s fidelity, her response was “I was abused by Mr. Pottle.” • Whether or not Ms. Maher had suicidal thoughts the week prior and required hospitalization, I fail to see the relevance to the events in question. No medical evidence was called to suggest that as a result Ms. Maher was suffering from delusions, or memory loss, such as to affect the reliability of her evidence. • The only tenuous connection is the evidence of Mr. Pottle that he allegedly retrieved the air gun from her at the Waterford Hospital.

He explained that when it was pointed at him in the bathroom he recognized it as the same gun and knew it was an air pistol. • The alleged assaults by Ms. Maher on Mr. Pottle’s son, denied by her, are of no assistance in discerning what happened in the garage, or bathroom. Mr. Pottle’s son did not bear witness to what happened, although was able to confirm that his father and Ms. Maher were fighting. Ms. Maher is not charged with assault and whether or not Ms. Maher assaulted Mr. Pottle’s son is collateral to the charges facing Mr.

Pottle. • Much time was spent by the defence in reviewing text messages retrieved from Mr. Pottle’s cell phone, which allegedly confirm that Ms. Maher was threatening Mr. Pottle’s mystery girlfriend the week prior. This was denied by Ms. Maher and, in any event, are neither relevant nor material to what happened on the day in question. [ 50 ] Turning now to a consideration of the specific offences for which Mr. Pottle was charged. Assault Causing Bodily Harm [ 51 ]

Section 267 (

b) of the Criminal Code provides: 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on

summary conviction who, in committing an assault, …

(

b) causes bodily harm to the complainant [52] That Ms. Maher received an injury to her nose is not in dispute. What is in dispute is the nature of the injury and how it wasreceived. [53] According to Ms. Maher, in a fit of intoxicated rage Mr. Pottle “lost it”, put his hands around her neck, choking her, and headbutted her, breaking her nose. [54] Mr. Pottle, on the other hand, testified that their heads accidentally collided, while acting in self defence he attempted to wrestlea wrench away from Ms.

Maher. [55] The question, of course, is not which of the two versions is to be believed, but whether on the whole of the evidence the Crownhas proven beyond a reasonable doubt that Mr. Pottle intentionally applied force to Ms. Maher without her consent. If so, Mr. Pottle isguilty of assault. Whether or not there was “bodily harm” depends on the nature of Ms. Maher’s injury. [56] That said, Mr. Pottle testified in his own defence. Therefore, if I accept his version of events, I must obviously find him notguilty.

If I do not believe him, I must also find him not guilty if his evidence is such as to raise a reasonable doubt. Even if I do notbelieve him and am not left with a reasonable doubt by his evidence, I must ask whether I am nevertheless left with a reasonable doubt bythe totality of the evidence I do accept. [57] There are portions of Mr. Pottle’s evidence that I accept, and portions that I do not. [58] Based on the testimony of Mr. Pottle and Ms. Maher, I accept that the two argued throughout the day, starting with his arrivalto a messy house, and that Ms.

Maher’s accusation of infidelity was a source of tension in their relationship. I also accept that Mr. Pottlewas, in turn, suspicious of Ms. Maher and whether she was providing sexual favours for money. I accept that for this reason Mr. Pottlewanted Ms. Maher’s cell phone and that he took it from her, threw it in the toilet and finally into the yard. I accept that Mr. Pottle wasdrinking beer on the day in question, while he boiled down maple syrup in his garage. [59] Notably, I do not accept Mr. Pottle’s version of the alleged sexual encounter during the morning of 8 April 2018.

Nor do Iaccept his version of what happened in the garage after supper and how Ms. Maher received the injury to her nose. Specifically, I do notaccept Mr. Pottle’s evidence to the effect that he accidentally struck Ms. Maher’s nose with his head while wrestling for a wrench. Furthermore, I am not left with a reasonable doubt by his evidence. [60] What emerges from the evidence of both Mr. Pottle and Ms. Maher is a tumultuous domestic relationship, fueled in no smallmeasure by distrust, one of the other. Ms. Maher believed that Mr. Pottle was being unfaithful and Mr. Pottle suspected that Ms.

Maherwas engaging in sex for money. Add alcohol and you have the ingredients for what happened on the day in question. [61] While Mr. Pottle denied being “drunk” and testified that he had consumed only 8 - 9 beer after supper that day, I am satisfiedthat he was indeed intoxicated, at least to the point where his judgment was impaired and his temper got the better of him. There werethree trips to the Ultramar for beer, he had been drinking beer most of the day, and all the while Ms. Maher continued to get under hisskin.

What began as verbal abuse ended with a physical altercation in the garage after supper. [62] Based on the whole of the evidence, I am satisfied beyond a reasonable doubt that an intoxicated Mr. Pottle lost his temper andproceeded to put his hands around Ms. Maher’s neck, pushed her against the wall and deliberately butted her with his head, causing hernose to bleed. The sight of blood had a sobering effect, albeit brief, while Mr. Pottle took off his shirt and retrieved a towel in an effortto stop the bleeding. However, Mr. Pottle continued to be fixated on getting Ms.

Maher’s cell phone and pursued her into the bathroomof the house. [63] I am also satisfied beyond a reasonable doubt that the assault continued in the bathroom, when he again pushed her and put hishands around her neck. He tore her jacket while wrestling the phone from her and I do not accept that Ms. Maher responded by pointingan air pistol at his forehead. In any event, there is no suggestion that an air pistol had any role to play in the events in the garage, or forthat matter in the bathroom up to that point. Unfortunately, the scene in the home was overheard by Mr.

Pottle’s young son. [64] I accept that there is a discrepancy in the evidence of Ms. Maher and Mr. Pottle with respect to the timing of the altercation inthe garage and how long the parties remained there before entering the house. However, this discrepancy is not such as to alter whattranspired in the garage or to inject a reasonable doubt in what happened. [65] Much was made by the defence of Ms. Maher’s failure to contact the police that evening, while alone in the garage waiting forMr. Pottle to return from the house. Whether or not Ms.

Maher was then paralyzed by fear, the argument is a double-edged sword, forneither did Mr. Pottle report the alleged assaults upon his person, or his son. [66] As for the incident in the bedroom earlier in the day, the alleged consensual encounter seems contrary to the mood between thetwo. Photographs of bruising on Ms. Maher’s legs were tendered in evidence and I am satisfied beyond a reasonable doubt that thesewere the result of being pushed against the bed by Mr. Pottle. [67] The intentional application of force without the recipient’s consent constitutes an assault. Mr. Pottle is thus guilty of assaultingMs.

Maher on 8 April 2018. [68] This leaves the question of whether the assaults caused bodily harm to Ms. Maher. Assault causing bodily harm is a crime ofgeneral, not specific intent (R. v. Janvier, 1979 ALTASCAD 27 , 1979 CarswellAlta 166, [1979] A.J. No. 251 ((S.C. (App.Div.)). The mental element includes the objective foreseeability of risk of bodily harm in general. The Crown need not prove objectiveforeseeability of the risk of the specific harm that happened (R. v. Dewey, 1999 ABCA 5).

[69] “Bodily harm” is defined in

section 2 of the Criminal Code as “any hurt or injury to a person that interferes with the health orcomfort of the person and that is more than merely transient or trifling in nature.” [70] Neither the Crown nor defence referenced any case law on the

interpretation of bodily injury, although such is not hard to find. [71] In R. v. Dixon, 1988 CarswellYukon 38, [1988] Y.J. No. 774 (C.A.), the trial judge aquitted Mr. Dixon of assault causingbodily harm, but convicted him of the included offence of assault. The injuries to the victm were described by the trial judge as anumber of small bruises to her left cheekbone and right shoulder blade and left elbow, a bruise to the back of her head and a lacerationthat required ten days to heal. [72] In granting the Crown’s appeal and substituting a verdict of assault causing bodily harm, Esson, J.A. embarked on an analysisof

section 2, above, (at paragraphs 45-46): 45. Clearly, as employed in s. 245.1(2) [now s. 267(b)], those words import a very short period of time and an injury of very minordegree which results in a very minor degree of distress. 46. The findings that "there is no evidence of any interference with the victim's health or comfort" and that "an injury that lasts nolonger than a month would fall within the definition of being transient and trifling" demonstrate, in my view, an absence of anyreasonable regard for the ordinary meaning of the words.

From the time of the assault at least until the medical treatment was completed,it is clear that the victim must have been deprived of any sense of comfort which she might have had before being assaulted. The elementof interference with comfort, which is all that the definition requires, must have continued for some time after that. The interference withcomfort resulted from a significant injury — one which cannot be described as trifling. There is no necessary connection at all betweenthe duration of the injury and the question whether it is trifling — a life-threatening injury is often resolved in a short time.

Transientdoes relate to time but, in this context, it is simply insupportable to describe as transient an injury that "lasts no longer than a month". [73] In R. v.

Moquin, 2010 MBCA 22 the Manitoba Court of Appeal provided examples of injuries that have been found by otherCourts of Appeal to constitute bodily harm (at paragraph 25): • scrapes, lacerations and bruises, especially around the eye and a large amount of hair which had been pulled out by the roots - the courtobserved that significant bruising will obviously cause discomfort and inconvenience for more than a brief and transitory period - R. v.Dorscheid, 1994 ABCA 18 , [1994] A.J. No. 56 (Alta.

C.A.); • superficial injuries, consisting primarily of bruising and abrasions, were found at trial to have interfered with the complainant's healthand comfort, which decision was upheld on appeal - R. v. Rabieifar, [2003] O.J. No. 3833 (Ont.

C.A.); • a number of bruises to the neck and arms, a number of lacerations to the face, chest, shoulder and wrist which cleared up within a week,difficulty speaking for three or four days as a result of choking and a scar on her forearm from a laceration - the court noted (1) that itwas incorrect to find that an injury that would heal within a week could not constitute bodily harm, as life-threatening injuries can be ofshort duration, and, (2) one must look at the overall effect of a number of injuries, each of which may be trifling, but taken together maybe more than trifling and transient - Garrett; and • a sore neck that lasted for approximately one month - the court also noted that medical evidence is not required before making a findingof bodily harm - R. v.

Giroux, 1995 ABCA 393 , [1995] A.J. No. 900 (Alta. C.A.). [74] The blow to Ms. Maher’s nose was severe enough to cause it to bleed. Immediate efforts to stop the bleeding with a towel andMr. Pottle’s shirt were unsuccessful, as Ms. Maher’s nose was still bleeding when she entered the bathroom. She obtained ice for herinjury and sometime thereafter the bleeding stopped. [75] The injury was such that Ms. Maher reported to St. Clare’s Hospital, where she was assessed and an x-ray taken of her nose. She testified that it continued to pain some eight days later when she visited her physician.

Photos taken at RNC Headquarters after sheleft the hospital show a bruising to the bridge of Ms. Maher’s nose, and bruising to her neck and lip, where she had been grabbed. Otherphotos show various bruises to Ms. Maher’s arms and legs and I accept that, with the possible exception of her right forearm, these werethe result of the struggles with Mr. Pottle on 8 April 2018. [76] I am satisfied that Ms. Maher’s injury to her nose, the bruising of her arms and legs, nosebleed, and bruising on her neck andlip, when considered together, interfered with her comfort in a way that was more than trifling and transient. Mr.

Pottle is thus guilty ascharged of assault causing bodily harm. [77] This leaves the question of whether the bodily harm also includes a broken nose. [78] Various medical records from Eastern Health were provided by the Crown as business records within the meaning of s. 30 ofthe Canada Evidence Act, R.S.C., 1985, c. C-5. While hospital records may qualify as business records (R. v. L. (C.), (ON CA), 1999 CarswellOnt 2700, 124 O.A.C. 45) the records provided were not originals, nor certified copies.

The defence did notobject, however, and the records were entered by consent. [79] To the extent that I am able to interpret it, the radiology report of Dr. Hartery, following the x-ray, is equivocal. It reads:

The paranasal sinuses are clear. There is a variety of cartilaginous lucency within the nasal bone. I am uncertain of one of these isrelated to a nondisplaced fracture. However, There is a 5 mm bony fragment located more inferiorly in the soft tissues of the nose. This is best seen on the lateral view. This may be in keeping with a displaced fracture fragment measuring about 7 mm inferior from the nasal bone proper. Alternatively itcould be keeping with a radiopaque foreign body. Please correlate with patient history. [80] On 16 April 2018, Ms. Maher appears to have had an operation at St.

Clare’s Mercy Hospital for what the Operative Reportdescribes as a “Closed reduction, nasal fracture.” No further explanation is provided. [81] However, while Ms. Maher testified that her nose was broken, she said nothing of surgery to repair this alleged fracture. Rather, it was her evidence that some eight days later her doctor recommended something called a rhinoplasty, but she was yet to havethis procedure. [82] I accept that medical evidence is not necessary to prove “bodily injury” (R. v. Giroux, 1995 ABCA 393), but without furtherexplanation I am unable to interpret the medical records provided.

What is a “rhinoplasty” for example? What is meant by openreduction? [83] This circumstance is compounded somewhat by the fact that the other medical records provided suggest that Ms. Maher had arhinoplasty some years prior to correct a pre-existing fracture. Are we here dealing with a new injury, or a pre-existing one? If new, is itthe result of the head butt, or some intervening event? [84] I find that I am left in the dark, without explanation, to “connect the dots”, as it were, between the surgery on 16 April and theassault eight days prior.

While the proximity in time might suggest that the two are related, without more I cannot say so with anydegree of confidence. Therefore, while Mr. Pottle is guilty of assault causing bodily harm, I am unable to conclude that this harmincludes a broken nose. Assault with a Weapon [85]

Section 267(

a) of the Criminal Code provides: 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of anoffence punishable on

summary conviction who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, [86] When used as a projectile, a beer bottle can qualify as a weapon, whether or not it finds its mark (R. v. Richard (1992), (NS CA), 72 C.C.C. (3d) 349; 1992 CarswellNS 23 (C.A.). If indeed Mr. Pottle threw a beer bottle, or bottles, at Ms.Maher while in the garage, as is alleged, he would be guilty of assault with a weapon, whether or not Ms.

Maher was struck. [87] Beer bottles were indeed broken during the altercation in the garage, but I am not satisfied beyond a reasonable doubt, based onthe whole of the evidence ,that this was the result of Mr. Pottle throwing a bottle, or bottles, at Ms. Maher as his intended target. UnlikeMs. Maher’s evidence with respect to the assaults, I found her testimony with respect to whether something was thrown at her to becomparatively vague and equivocal. [88] I therefore find Mr. Pottle not guilty of assault with a weapon. Uttering Threats [89]

Section 264.1(1)(

a) of the Criminal Code reads: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; [90] When initially asked by the Crown if Mr. Pottle said anything to her while choking her in the garage, Ms. Maher testified thatshe could not recall. When shown her testimony from the Preliminary Inquiry, she offered she could now recall that Mr. Pottle stated,“I’m going to kill you.” [91] These words, if spoken in the context as described by Ms. Maher, would meet the requirements of s. 264.1(1)(a), above (R. v.McRae, 2013 SCC 68).

Specifically, a reasonable person, fully aware of the circumstances in which the words were spoken, wouldperceive them to be a threat of death, or bodily harm. Moreover, the circumstances in which they were spoken are such that I would besatisfied that Mr. Pottle intended them to intimidate, or be taken seriously. [92] For his part, Mr. Pottle denied making such a threat. I do not believe him, nor is his denial such as to raise a reasonable doubt

as to whether these words were spoken. [ 93 ] While I do not believe him, I am nevertheless left with a reasonable doubt, based on the whole of the evidence as to whether such a threat was made. While Ms. Maher testified that her memory was refreshed, I am not confident that such was the case and that she is not now simply repeating what she may have said at the Preliminary Inquiry, without any present recall. This lack of confidence is such as to raise a reasonable doubt. I therefore find Mr. Pottle not guilty of uttering threats to cause death or bodily harm. DIsposition [ 94 ] For the foregoing reasons, I find Mr. Pottle guilty of assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code . I find him not guilty of assault with a weapon and not guilty of uttering threats to cause death or bodily harm. _____________________________ Donald H. Burrage Justice