Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Elizabeth Lane
Before: Justice D.A. Harris
Heard: January 30, 2013
Reasons for Judgment delivered: March 15, 2013
Counsel:
- G. Settimi, for the Crown
- A. Burton, for the accused, Elizabeth Lane
Reasons for Judgment
Introduction
1Elizabeth Lane has been charged with assault causing bodily harm to HS.
2Crown counsel elected to proceed summarily. HS, MC and MD [1] testified for the Crown. Ms. Lane testified in her own defence.
3Ms. Lane is before me today to receive judgment.
4I will start by noting that most of the facts are not in issue here.
Agreed Facts
5Everyone agreed that Ms. Lane and HS were very close friends for two or three years. They confided in each other. More particularly Ms. Lane told HS about a number of very personal difficulties she was experiencing with her family. Then HS revealed these secrets to others. Ms. Lane felt betrayed by this, and the two girls went their separate ways for the next year or two.
6On March 20, 2012 they were attending the same high school. By then they definitely did not like each other. Previous to that day, they would see each other around the school. On occasion, HS made derogatory comments to Ms. Lane.
7On March 20, HS was in a bathroom at the school talking to MC and MD.
8Ms. Lane came into the bathroom and walked by the three girls and went into a stall to get some toilet paper and blow her nose.
9HS then stated something like "We need to get the fuck out of this bathroom. It has been officially contaminated by shit".
10There is then some disagreement about what exactly happened next and I will get into some of those differences in the evidence shortly.
11Everyone agrees however that the events ended with Ms. Lane punching HS in the face one or more times, breaking her nose and blackening both eyes as well as causing swollen puffy cheeks. HS also sustained bumps on the back of her head. She would eventually undergo two surgical operations to repair the damage to her nose. She was still experiencing some problems with her breathing as of the day she gave her evidence.
Issue
12Counsel for Ms. Lane argued that Ms. Lane was justified in law in doing this in that she was defending herself.
13That then is the issue to be decided by me.
Legal Framework
14In assessing the law of self-defence I note that counsel for Ms. Lane only relied on section 34(1) of the Criminal Code. I intend however to look at sections 34(1) and (2) and at section 37.
15Section 34 reads as follows:
- (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one 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 originally made 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.
16Section 37 states:
- (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
17I note that with respect to section 34, subsections (1) and (2) are not mutually exclusive [2].
Analysis of Section 34(2)
18I will look at section 34(2) first.
19In order to assess its applicability here, I must first determine whether Ms. Lane caused grievous bodily harm to HS.
20The Criminal Code includes a definition for "bodily harm [3]" but not for "grievous bodily harm". In R. v. Martineau, 1988 ABCA 274, the Alberta Court of Appeal addressed that issue at paras. 36 through 40 and concluded that the two terms have come to have similar, though not identical, meaning [4] and that:
The addition of the word "grievous" to the term merely added the connotation of "serious"; in neither case would the injury necessarily be life threatening. [5]
21In light of this, there is no doubt in my mind that Ms. Lane caused grievous bodily harm to HS. A broken nose requiring two surgeries clearly constitutes serious bodily harm.
22Ms. Lane claimed that she thought she was about to be assaulted by HS, but made no suggestion that she had any apprehension of death or grievous bodily harm.
23Accordingly, section 34(2) is not applicable here [6].
Analysis of Sections 34(1) and 37
24Section 37 could provide a wider defence to an accused than section 34(1) since it applies to an accused, even if she provoked the assault upon herself, or if she was acting in defence of others. Neither of these factors come into play here.
25But, either section 34(1) or section 37 will apply here if Ms. Lane struck HS in order to prevent an assault on herself and if the force she used was no more than necessary.
26According to Ms. Lane, HS was about to assault her. At the very least Ms. Lane reasonably apprehended that HS was about to assault her. She struck HS to prevent HS from committing that assault. She used no more force than was necessary. The injuries sustained by HS, serious as they were, were the unfortunate result of a lucky/unlucky punch.
27If this was what happened, Ms. Lane was simply acting in self-defence.
Credibility Assessment
28However, her evidence was contradicted by that of HS, MC and MD. They said that Ms. Lane was either hurt or angry (or both) as a result of HS's insults and that Ms. Lane came up from behind HS, grabbed her and struck her. HS never assaulted Ms. Lane. HS never gave any sign that she was about to assault her. Then even after Ms. Lane had knocked HS to the ground, Ms. Lane knelt over her and banged HS's head off the wall and the floor.
29Accordingly, credibility is a crucial issue here and I must keep in mind the directions from the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742.
30If I believe Ms. Lane's testimony, I must find her not guilty.
31Even if I do not believe her testimony, if it leaves me with a reasonable doubt about her guilt I must find her not guilty.
32Finally, even if her testimony does not leave me with a reasonable doubt about her guilt, if after considering all the evidence that I do accept I am not satisfied beyond a reasonable doubt of her guilt, I must acquit.
33In deciding this, I must keep in mind that Ms. Lane, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven her guilt beyond a reasonable doubt. She did not have to present evidence or prove anything. It is not enough for me to believe that she is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty, and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities." [7]
34This is a tough standard and it is so tough for a very good reason. As Mr. Justice Cory said in R. v. Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted." [8]
35In this case I must also remember that the onus is also upon the Crown to prove beyond a reasonable doubt that the requirements of self-defence have not been met. Ms. Lane does not have to prove that she was defending herself. She simply has to raise a reasonable doubt.
Findings on Credibility
36I did not believe Ms. Lane. Neither did her evidence leave me with a reasonable doubt as to her guilt.
37All of the Crown witnesses agreed that MC and MD were not standing anywhere near HS and the doorway when Ms. Lane struck HS. MC and MD were still in the bathroom itself. Ms. Lane walked by them and so they were behind her when she confronted HS.
38I found all three Crown witnesses to be very credible.
39HS was very candid in her evidence. She admitted that she had betrayed Ms. Lane's secrets in the past. She admitted that she had made derogatory comments to Ms. Lane previously as well. She stated quite clearly in court that her words in the bathroom were "We need to get the fuck out of this bathroom. It has been officially contaminated by shit".
40She made it clear that she was not afraid of Ms. Lane then or at any other time. She was quite prepared to fight Ms. Lane if challenged to do so. She left me with the impression that she would rather have dealt with Ms. Lane herself rather than leave it to the police and the courts.
41HS made no attempt to present herself as a likeable or sympathetic character. I certainly did not see her as such. I found her to be self-centred and uncaring about the feelings of others. Quite frankly I did not like her.
42On the other hand, I did believe her.
43I also believed MC and MD.
44Neither girl described herself as a close friend of HS and neither attempted to defend what HS said. Both candidly stated that HS said what she did in order to be mean to Ms. Lane. MD went further and said that she did not agree with HS and that she felt uncomfortable about the fact that she did not stick up for Ms. Lane. She believed that HS was trying to let Ms. Lane know that she did not like her and to make her feel bad, but that HS was not trying to provoke a fight.
45Both MC and MD drew clear distinctions in their evidence between what they had seen and what they had surmised.
46Both were unequivocal in their evidence to the effect that Ms. Lane had already walked by them and was between them and HS when the assault began.
47Both were unequivocal that HS was walking away, leaving the bathroom, when Ms. Lane went after her.
48Both were unequivocal that they did not know what to do in order to stop the fight.
49Neither was prepared to get involved physically. MD apologized in court for what she was about to say before emphatically stating that she was not about to put herself – all four feet, eleven inches and eighty pounds of her – at risk in order to break up a fight. She was very convincing and I definitely believed her when she said that.
50I note also that Ms. Lane testified that after she and HS started fighting, MC and MD "kind of escaped behind us". Unfortunately neither counsel explored this any further, but I would have been interested to know how the two girls could have got past Ms. Lane and gone back into the bathroom after the fight had broken out. I also would have been interested in hearing why they might have done so.
51I note further that even Ms. Lane never suggested that either MC or MD became involved in the fight, even after HS was losing so badly. I would have thought that they would have done something had they actually intended to assist HS in preventing Ms. Lane from leaving and allowing HS to assault her.
52I also note that both MC and MD were cross-examined at some length about the fact that they could not see how the fight had started because of the fact that they were back in the bathroom itself where their view of what was happening between Ms. Lane and HS was obstructed. It was not suggested to either of them that they had been right there beside HS when everything took place.
53The only reasonable explanation for all of this is that MC and MD were in fact behind Ms. Lane and in the bathroom when the fighting started. Neither girl was blocking Ms. Lane's way and she had gone by them already when she caught up to HS and hit her.
Assessment of Ms. Lane's Evidence
54Ms. Lane's description of the manner in which HS threatened her and her description of the fight both struck me as rather vague and unconvincing.
55Ms. Lane readily conceded that HS did not say anything to suggest that she was going to hit Ms. Lane. She did not swing at Ms. Lane. According to Ms. Lane, HS stood there beside her friends blocking the exit. She rose up. She made herself bigger. She had a cocky look or a smile on her face. That was it.
56At one point Ms. Lane testified that she did not know how they started fighting.
57Another time she said that she began swinging. She hit HS in the face. Then HS started fighting back. Ms. Lane never testified that HS landed any blows on her though.
58During cross-examination Ms. Lane said that she did not remember but she might have thrown the first punch.
59She did testify that she had seen HS fight in the hallway on previous occasions when teachers had to pull HS off of other girls. Ms. Lane said that she knew what HS was capable of.
60This evidence was admissible as "Scopelliti" evidence [9] but it did not really provide any further justification for Ms. Lane's supposed belief that HS was about to assault her. Ms. Lane said she had seen HS "fight" other girls. There was no evidence as to whether these were consent fights as opposed to unprovoked assaults. There was in fact not any evidence as to whether HS had instigated these previous fights as opposed to simply responding to a challenge by the other girls.
61Ms. Lane did make it clear that while HS had bullied her verbally on a regular basis, she had never done so physically. There was no suggestion of HS ever trying to fight her, let alone assault her.
62Ms. Lane also admitted that she did not know either MC or MD. She had no reason then to believe that they were out to get her, other than the fact that they were there together with HS.
63I have commented already on my belief that neither of these girls had any reason to remember the day's events other than as they actually happened. I cannot say the same with respect to Ms. Lane.
64Ms. Lane had good reason to remember that day's events in the manner that she described in court. She was angry at the time and understandably so. She had been aggrieved by HS before and HS continued the process that day. Ms. Lane had valid reasons to see herself as a good person who had been victimized by HS. I heard no evidence to suggest that she was not a good person and she certainly had been victimized by HS. So, for her to admit, even to herself let alone to everyone in the courtroom, that she had sucker punched HS thereby breaking her nose would certainly run counter to that opinion that she had of herself.
65I note also that Ms. Lane was also vague and unconvincing as she tried to explain why she continued to hit HS after the fight was clearly over.
66I note also that while she generally insisted that she had used reasonable force, she did say at one point that she believed that all three girls were going to go after her and "that is maybe why she used more force than usual". That may have been a Freudian slip and she was really conceding that she not only used more force than usual, but that she also used more force than was necessary in the circumstances. I am not however prepared to subject Ms. Lane's words to such psychoanalysis. Nor do I need to. Quite apart from that particular comment by her, I find that the force used by Ms. Lane was more than was necessary.
67For all of the above reasons, I did not believe Ms. Lane when she said that she believed that HS was about to assault her. Nor did her evidence leave me with a reasonable doubt on that score.
Conclusion
68Rather, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Lane assaulted HS and caused her bodily harm. Accordingly, I find her guilty.
Released: March 15, 2013
Signed: "Justice D.A. Harris"
Justice D.A. Harris
Footnotes
1All three were under 18 years of age at the time of this incident and I have chosen to identify them here by their initials.
2R. v. Baxter, [1975] O.J. No. 1053 (Ont. C.A.).
3Section 2 says that "bodily harm" means any hurt or injury to a person that interferes with the health or comfort of the person and is more than merely transient or trifling in nature.
4See para. 38.
5See para. 40.
6Perhaps giving full credence to counsel's decision not to rely on this subsection in his submissions.
7R. v. Starr, 2000 SCC 40 , [2000] S.C.J. No. 40 (S.C.C.) at para. 242.
8R. v. Lifchus, [1997] S.C.J. No. 77 (S.C.C.) at para. 13.
9See R. v. Scopelliti, [1981] O.J. No. 3157 (Ont. C.A.) where Martin J.A. stated at para. 29 that:
"It is well established that where self-defence is raised, evidence not only of previous assaults by the deceased on the accused, but also of previous acts of violence by the deceased, known to the accused, towards third persons, is admissible to show the accused's reasonable apprehension of violence from the deceased. Evidence of the deceased's reputation for violence, known to the accused, is admissible on the same principle."
