Docket: CACR2107 Trevor Wade Meyers Appellant - v. -, 2012 SKCA 98

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 98 Date: 2012-10-22 Between: Docket: CACR2107 Trevor Wade Meyers Appellant - and - Her Majesty the Queen Respondent Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Trevor Wade Meyers appearing in person Beverly Klatt for the respondent Appeal: From: 2011 SKQB 467

Heard: October 22, 2012 Disposition: Appeal dismissed (orally) Written Reasons: October 26, 2012 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Jackson J.A. [1] This is a conviction and sentence appeal from five charges of criminal activity under the Criminal Code. The five charges aroseas a result of an altercation that took place during the evening of February 4, 2011 at the Coachman Inn in Regina.

The details of thealtercation are fully provided in the judgment under appeal and need not be repeated here (see: 2011 SKQB 467, 388 Sask. R. 193). [2] For the purposes of these reasons, it is sufficient to recount that Trevor Meyers and F.M. engaged in sexual and other activitiesthat resulted ultimately in Mr. Meyers being charged with: (

i) assaulting F.M., causing bodily harm, contrary to s. 267(

b) of the CriminalCode; (ii) confining F.M., contrary to s. 279(2) of the Criminal Code; (iii) two counts of uttering a threat to cause death to F.M., contraryto s. 264.1(1)(

a) of the Criminal Code; and (iv) failing to comply with a term of his recognizance, contrary to s. 145(3) of the CriminalCode. Mr. Meyers was acquitted of sexual assault, contrary to s. 271 of the Criminal Code. In total, he received a 30-month sentencewith six months credit for remand time, resulting in a 24-month sentence. [3] It is common ground that Mr. Meyers and F.M. each injured the other. In Mr. Meyers’s testimony he admitted that he struck herin the face with a closed fist as hard as he could five times.

Pictures filed with the Court graphically depict the damage caused to F.M.’sface and other parts of her body. A police officer who interviewed her a couple of days after the incident testified that she had beenbeaten about the face so badly that he did not recognize her. [4] F.M. admitted that she grabbed Mr. Meyers by his scrotum, testicles and penis. A report filed by a paramedic detailed bruisingto those parts of Mr. Meyers’s body as well as to the surrounding area. He testified that he performed light duties for a number of daysfollowing the incident. [5] Mr.

Meyers testified that he struck F.M. because she attacked him by clawing at his face and his genitalia. He said he struck herrepeatedly because she would not let go of his genitalia. He said that she maintained her grip throughout the time he was hitting her, andthat he finally had to pry her hands from his body. F.M. testified that she scratched and hit him because he started to choke her and heronly way of getting him to stop was to fight back. [6] At trial, counsel for Mr. Meyers indicated that he was relying upon self-defence.

During oral argument, counsel for the defenceindicated to the trial judge that the only

section in play was s. 34(1) of the Criminal Code. That subsection reads as follows: Self-defence against unprovoked assault 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force heuses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. [7] In this Court, Mr. Meyers, now unrepresented, seeks to file a series of documents as “fresh evidence.” In relation to hisconviction appeal, the documents fall into these categories: (

i) documents that were exhibits or were referred to at trial, e.g., F.M.’srecord and the paramedic’s report describing his injuries; (ii) articles taken from the internet, describing the effects of certain of F.M.’sconditions, including the effect of excessive alcohol and drug consumption on a person suffering from hypoglycaemia and how easilyhypoglycaemia sufferers bruise; and (iii) a receipt from the Northgate Optical indicating that the repairs to one pair of his glasses onMarch 4, 2011 was for the “frame and lenses”—ostensibly to shore up his claim that she attacked him in the face first. [8] While the Court does not consider that any of these documents meets the threshold of being “fresh evidence” within the meaningof R. v.

Palmer, (SCC), [1980] 1 S.C.R. 759, we have nonetheless considered the evidence and concluded that none of itcould reasonably be expected to have affected the result when taken with the other evidence adduced at trial. [9] Mr. Meyers’s essential point is that the trial judge should not have believed F. M. that he attacked or provoked her with theconsequence that the trial judge’s reasons give rise to an unreasonable verdict. Buried within his submissions is the argument that thetrial judge erred by finding that the Crown had proven beyond a reasonable doubt that Mr.

Meyers did not have a defence of self-defence. [10] With respect to the defence of self-defence, the trial judge found first that Mr. Meyers could not rely upon s. 34(1) because he hadinitiated the attack or had provoked it: [36] Neither counsel clearly delineated which

section of the Criminal Code was operative in this case. Defence filed R. v. Couture,2006 SKPC 37, 277 Sask. R. 101. [37] A finding of who initiated or provoked the assault is required to assess which

section of the Code applies. The complainant saysthe defendant attacked her and began choking her, and she grabbed his testicles in defence. The defendant says he did nothing, and shegrabbed his testicles in one hand and initially clawed at his eye with the other. Yet he said nothing of any scratches or injury in the area

of his eye, nor was anything like that noted by the paramedic at the Rocanville mine. [38] Accordingly, the defendant cannot invoke s. 34(1) of the Code. The defendant was not unlawfully assaulted by the complainant.The defendant initiated the attack by choking the complainant. Alternatively, the defendant provoked the assault by the complainant. [2011 SKQB 467; emphasis added] The trial judge then held that, regardless of who had initiated the attack, Mr.

Meyers could not rely upon s. 34(1) because he “intended tocause grievous bodily harm or was reckless in the application of force” (para. 39) and “the force used was excessive” (para. 40). All ofthis indicates that the trial judge’s conclusion in relation to s. 34(1) is unassailable. [11] While counsel indicated that he was not relying on any subsection other than s. 34(1), the trial judge went on to consider ss. 35 and37. He stated that, on the facts as found, neither

section availed Mr. Meyers. [12] In this Court, Mr. Meyers now relies specifically on s. 34(2) of the Criminal Code, which the trial judge did not mention. It reads: 34

(2) Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originallymade or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [emphasis added] (This Court discussed the use of s. 34(2) in R. v. Raphael, 2009 SKCA 16, [2009] 3 W.W.R. 611.) [13] Mr. Meyers states that he was the one who was unlawfully assaulted and he acted to prevent grievous bodily harm from which hecould not otherwise preserve himself.

In that regard, his fresh evidence is directed to show that he was not the initial aggressor. [14] First, given F.M.’s hypoglycaemic condition and her tendency to bruise easily, he states that she should have been bruised, if hehad choked her—yet the photographer took no pictures of F.M.’s neck. Second, he submits that his ophthalmic receipt shows he had twopairs of glasses and one pair required repairs to frames and lenses—as support for his position that she struck him first.

Third, he assertsthat the report from the paramedic does indeed mention an abrasion under the left eye. [15] In light of defence counsel’s position at trial, I am not prepared to hold that the trial judge erred by not considering s. 34(2). If hedid commit an error of law in these circumstances, I would be prepared to hold that this is a proper case to apply s. 686(1)(b)(iii) of theCriminal Code to cure the error. Even in light of the so-called fresh evidence, I am satisfied that there was no substantial wrong ormiscarriage of justice. [16] The trial judge made explicit findings against the credibility of Mr.

Meyers—giving detailed reasons for doing so (para. 24). Hedid not accept Mr. Meyers’s version of the events in the least. After instructing himself on R. v. W.(D), (SCC), [1991] 1S.C.R. 742, he specifically found that “where a conflict exists between the testimony of the complainant and the accused, I accept that ofthe complainant” (para. 25). [17] With respect to how the altercation started, F.M. testified that Mr. Meyers became angry when it was discovered that she had lost ashopping bag containing intimate items. When she found his anger humorous, he became angrier and he began to choke her.

She startedby scratching him and trying to push him off and progressed to grabbing his genitalia “as he continued to choke her.” According to her,that is when the punching started, and when she tried to leave, he prevented her from doing so. During the course of the confinement,she said that he threatened her. [18] The trial judge was also fully aware of the frailties of some aspects of F.M.’s testimony. It will be recalled that he acquitted Mr.Meyers of having sexually assaulted F.M.—finding instead that the sexual relations were consensual.

The trial judge had no suchconcerns with respect to F.M.’s testimony about the assault causing bodily harm. [19] In such circumstances, intervention by this Court on the basis that he did not mention s. 34(2) would simply not be an appropriateexercise of appellate powers. [20] The Court has also considered an additional matter in relation to the appeal from the assault causing bodily harm conviction. Asthe trial judge mentioned, counsel for Mr. Meyers filed one case: R. v. Couture, 2006 SKPC 37, 277 Sask. R. 101.

Unknown to counseland the trial judge, Couture was overturned on appeal and the conviction was set aside (see: 2007 SKQB 263). The trial judge referredto Couture when he held that Mr. Meyers “either intended to cause grievous bodily harm or was reckless in the application of force”(para. 39). The trial judge’s reliance upon Couture, notwithstanding that it had been overturned, does not constitute reversible error inthis Court. In Couture, the trial judge made two findings that were not made in the case before us: (

i) the victim had been theaggressor; and (ii) the victim’s evidence, with respect to the assault, was not reliable. Neither finding was made in the matter before us. [21] In

summary, the appeal from the assault conviction is dismissed. [22] Regarding the balance of the charges, Mr. Meyers’s principal argument is that the trial judge should not have believed F.M.,adding that she has been a cocaine user in the past and that her various medical conditions rendered her testimony unreliable. He alsosubmitted that the Coachman Inn staff had seen a woman successively entering and leaving his hotel room until 4:00 in the morning—who he submits was F.M., and should have been evidence she had not been unlawfully confined earlier in the evening.

Finally, hesubmits that the police should have done more to verify that he was not the person phoning to threaten F.M. Nothing in these

submissions gives rise to a ground of appeal that would warrant intervention by this Court. [ 23 ] With respect to his sentence appeal, Mr. Meyers has two arguments. First, he argues that the trial judge should have given him 1.5 days’ credit for each day he served on remand because he was placed with convicted prisoners and was often in his cell for 21 hours per day. Second, he argues that the decisions cited by the Crown indicate that sentences of two years less a day have been granted for similar assaults in other cases. [ 24 ] Mr. Meyers spent 9.9 months on remand.

The trial judge credited him for a full four months for yet another offence of threatening F.M. and six months credit for the balance of the time spent on remand. Mr. Meyers did not ask for judicial interim release. In such circumstances, the Court is unable to interfere with the trial judge’s discretion to calculate remand time as he did. [ 25 ] As to the fitness of a 27-month sentence for the assault, the confinement and the first threating charge and a consecutive three- month sentence for the balance of the offences, this Court is unable to say that the sentence is clearly unreasonable. Mr.

Meyers has a record, including four previous assaults on women. The sentence imposed is a fit sentence. [ 26 ] With that, the appeal from all convictions and from the sentence is dismissed.