Court File and Parties
Ontario Court of Justice
Date: 2020-07-22
Court File No.: Newmarket 4911-998-19-09185
Between:
Her Majesty the Queen
— and —
Roger Guppy
Before: Justice Christine Pirraglia
Heard on: July 14 and 15, 2020
Reasons for Judgment released orally on: July 22, 2020
Counsel:
- Wilson, J. — counsel for the Crown
- Starr, E. — counsel appointed pursuant to s. 486 of the Criminal Code
- The defendant Roger Guppy — on his own behalf
PIRRAGLIA J.:
Overview
[1] Roger Guppy is charged with offences of aggravated assault, assault with a weapon and assault. The alleged victim is his father, Winston Guppy. He is further charged with assault with a weapon against his sister, Indira Guppy. Finally, he is charged with two counts of failure to comply with a probation order.
[2] The events which gave rise to the charges occurred in the family home in the early morning hours of October 17, 2019.
[3] The Crown called two witnesses. Additional evidence included a 911 call placed by Indira Guppy, surveillance clips from a security camera on the front porch of the residence, and photographs of injuries. Roger Guppy, who represented himself at this trial, did not call any evidence.
The Evidence
[4] Indira Guppy testified that shortly after midnight on October 17, 2019, she returned home following an evening out with friends. As was her custom, she went to her father's bedroom to say goodnight. She saw that her father had swelling and bruising around one of his eyes. He was awake but "out of sorts". He was not forthcoming with details about what had happened.
[5] When she left her father's room, she encountered her brother Roger (the defendant). She attempted to get to her own bedroom but Roger began to punch and kick her.
[6] On hearing the commotion in the hallway, Winston Guppy emerged from his room and came between the two siblings. Roger Guppy switched his attention to his father and started to punch and hit him about the upper body and head.
[7] Indira Guppy returned to her father's room to retrieve her phone. When she emerged a second time, her brother was coming up the stairs with a vase in his hand. The vase was an ornamental, heavy bottomed bottle that had been sitting on a cabinet in the foyer. Roger Guppy started to attack his sister with the vase striking at least two blows, one on the back of her upper left shoulder and one on her right elbow.
[8] Winston Guppy again came between the two siblings. Indira observed Roger striking her father with the vase. She called 911. While on the phone with the 911 operator, Indira Guppy saw Roger Guppy strike her father over the head with the vase. Winston Guppy fell to the ground unconscious.
[9] Indira Guppy locked herself in her father's room. She remained on the phone with 911 until police entered the home. It's clear from the recording that police were on scene in a few minutes. When Ms. Guppy heard police, she came out of her father's room. She saw her father lying on the ground, at first unresponsive but eventually opening his eyes. An officer was kneeling over him. She saw blood dripping from her father's head onto the hallway carpet. Her brother was not in sight.
[10] Winston Guppy's testimony corroborates the evidence given by his daughter on many material facts. Earlier that evening, his son Roger entered his bedroom twice. The second time that he entered the room, he was angry. He approached his father who was lying on his bed and struck him with a closed fist in the area of his left eye. Winston Guppy was knocked off the bed and cowered on the floor protecting his head. Roger Guppy left the room.
[11] When Indira came into his room later that night, she noticed the bruising on her father's eye. According to Winston Guppy's recollection, Indira left the room to go get him some ice. After Indira left the room, Winston Guppy heard "scuffling" sounds outside his bedroom. When he exited the room, he saw both Roger and Indira facing each other with their arms raised in a combative posture. He came between them. His recollection is that Roger then returned to his bedroom and came back into the hallway with a vase in his hand. Roger approached his father and struck him once in the head with the vase. Winston Guppy recalls falling to the ground. He believes that he briefly lost consciousness. When he regained consciousness, he had no feeling in his right arm or leg and could not get up. While Winston Guppy was prone on the ground, Roger came out of his room, "jumped" over him, went downstairs and left the house. Police arrived and Winston Guppy was transported to hospital.
[12] The photographs filed as Exhibit 1 depict the injuries sustained by Indira and Winston Guppy. Indira Guppy had bruising to her upper left shoulder and right elbow that she says resulted when Mr. Guppy struck her with the vase. Winston Guppy's left eye appears to be swollen and badly bruised. The bruising covers the entire area of the eye and extends to his forehead which also appears swollen. Additionally, Winston Guppy sustained an injury to the middle of his scalp. The photograph shows a perforation of the skin approximately 1 centimeter in length and ¼ centimeter in width. There is some bruising and what appears to be dried blood around the area of the injury. The Crown did not call any evidence regarding the depth of the injury.
Issues
A. Credibility and Reliability of the Crown Witnesses
[13] The defendant did not testify, called no evidence and made no submissions. I must nonetheless assess the evidence before the court according to the guidelines set out in R. v. W.(D.). If there is evidence that is inconsistent with the guilt of the defendant or raises a reasonable doubt about any element of the offences before the court, I must acquit. If I find there is no evidence inconsistent with guilt and no evidence that raises a reasonable doubt about the guilt of the accused, I must determine if the evidence I do accept proves the elements of the offences beyond a reasonable doubt.
[14] I have little doubt that Indira and Winston Guppy were attempting to be candid in recalling the events of that night. The events which they described occurred quickly and were deeply upsetting. Their evidence was corroborated by their injuries, security footage from the front porch camera and the 911 tape. All of the independent evidence confirms the credibility and reliability of their testimony.
[15] There were some inconsistencies in the testimony of Indira and Winston Guppy, as is to be expected when witnesses testify concerning fast paced, distressing events. In general, I find the inconsistencies in the evidence of the two witnesses to be immaterial. Given that the defendant is self-represented, I will nonetheless address the more significant disparities.
[16] Indira Guppy testified that she returned home sometime after midnight on October 17 and that the events making out the offences occurred shortly thereafter. Winston Guppy recalled that the initial assault occurred between 6:00 p.m. and 7:00 p.m. and his daughter returned home at about 9:00 p.m. The 911 call and video footage confirm the testimony of Indira Guppy. I find that Indira Guppy is more reliable than her father with respect to timing and the sequence of events. This can likely be attributed to the nature of Winston Guppy's injuries.
[17] Indira Guppy testified that when she came out of her father's room the second time, she saw Roger coming up the stairs with the vase. Her father gave evidence that his son had emerged from his bedroom with vase. Once again, I accept the evidence of Indira Guppy. The video from the front door security camera shows Roger Guppy going up the stairs with an object in his hand at 12:29 a.m. Although it is difficult to discern what the object is, it appears to be of the same size and density as the vase used in the assault.
[18] Indira Guppy testified that she saw Roger strike her father with the vase several times before striking him in the head. Winston Guppy testified that the defendant only struck him once with vase. I do not find this to be a material discrepancy. It may well be that Ms. Guppy had a different vantage point from which to make her observations and mistakenly believed that the defendant made impact with the vase. I also recognize that Winston Guppy may have minimized his son's violent behaviour. These inconsistencies do not detract from the reliability of the witnesses.
[19] Winston Guppy testified that he was briefly unconscious after being struck on the head by his son. When he regained consciousness, he tried to get up but was unable to do so. He saw his son come out of his room and go downstairs. The police arrived and took him to the hospital. Indira Guppy recalled that her father only regained consciousness once the police were present. Again, this discrepancy in the evidence is easily explained. When Ms. Guppy saw her brother strike their father on the head, fearing for her own safety, she locked herself in her room. She did not see what was going on in the hallway until the police arrived.
[20] I have considered all the evidence before the court. I find there is nothing in the evidence that could give rise to an air of reality to self defence or the defence of accident. I have no doubt that Roger Guppy was the perpetrator of these offences.
[21] I am satisfied on all the evidence that the Crown has proved that on the evening of October 16, 2019 Roger Guppy knowingly assaulted his father Winston Guppy by punching him once in the face causing significant swelling and bruising to his left eye. The assault in the bedroom was intentional and unprovoked. I find Roger Guppy guilty of assault.
[22] I am further satisfied beyond a reasonable doubt that Roger Guppy later armed himself with a glass vase and struck both Indira Guppy and Winston Guppy with the vase. The assaults with the vase were intentional and unprovoked. I find Roger Guppy guilty of assault with a weapon against Indira Guppy and Winston Guppy.
B. Aggravated Assault
[23] Crown counsel submits that Roger Guppy should be found guilty of aggravated assault on his father based on either of two grounds: (1) that he endangered his father's life by striking him in the head with the vase; or (2) that in striking his father with the vase, he wounded him within the meaning of s. 268 of the Criminal Code.
(i) Endangerment of Life
[24] Aggravated assault is defined in Section 268 of the Criminal Code:
Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
[25] Endangerment of life does not require proof of bodily harm. The mere possibility that life would be endangered is insufficient to make out the offence. The evidence must establish beyond any reasonable doubt that the complainant's life was, in fact, endangered.
[26] Crown Counsel does not dispute these well-established principles but argues that the act of striking Winston Guppy on the head with a heavy glass vase is sufficient in itself to prove the essential element of endangering life beyond a reasonable doubt. With the greatest of respect, I must reject that submission.
[27] The assault with the vase caused Mr. Guppy to lose consciousness briefly. He suffered a relatively small abrasion to the scalp, and experienced dizziness for roughly two weeks after the event. The Crown did not call any medical evidence to substantiate the submission that Mr. Guppy's life was endangered.
[28] Although a blow to the head with a glass vase is undoubtedly a serious assault, it does not lead to the inexorable conclusion that the life of the victim was endangered. The evidence presented in this case does not satisfy me of that fact beyond a reasonable doubt.
(ii) Wounding
[29] Did the injury to Winston Guppy's scalp, caused by being struck on the head with a vase, rise to the level of a "wound" within the meaning of s. 268 of the Criminal Code?
[30] The Crown submits that any perforation of the skin establishes a "wounding" for purpose of proving an aggravated assault. I disagree.
[31] The Criminal Code sets out three graduated categories of assault: simple assault, assault causing bodily harm, and aggravated assault. The increasing gravity of the offences is reflected in both the wording of the sections and in the escalating penalties provisions.
[32] Assault causing bodily harm is an included offence of aggravated assault by wounding. It follows that an injury which qualifies as a "wounding" for the purposes of establishing an aggravated assault must also constitute an injury causing bodily harm. "Bodily Harm" is defined in s. 2 of the Criminal Code:
"bodily harm" means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.
[33] Given that aggravated assault by wounding is clearly intended to be more serious than assault causing bodily harm, a "wounding" must be a more serious injury than an injury which merely causes "bodily harm". The injury must interfere with the health or comfort of the person in a significant way. It must be more than trifling or transient.
[34] The determination of whether an injury makes out an aggravated assault by "wounding" is a finding of fact. The defendant intentionally struck his father in the head with a glass vase which caused a perforation of the skin and some minor bleeding. No sutures were required to close the wound. There was a brief period of unconsciousness immediately following the blow followed by some dizziness for the next two weeks. Mr. Winston Guppy adamantly denies any long-lasting consequences from the assault.
[35] I am not satisfied beyond a reasonable doubt that the wound interfered in a substantial way with the integrity, health or well being of the complainant. While I find that the assault with the weapon perpetrated on Winston Guppy did result in bodily harm, I am not satisfied beyond a reasonable doubt that the Crown has proven the elements of aggravated assault by wounding. I find Roger Guppy not guilty of aggravated assault but guilty of the lesser but included offence of assault causing bodily harm, contrary to s. 267 (b) of the Criminal Code.
Fail to Comply with Probation Offences
[36] Roger Guppy was arraigned on two counts of failure to comply with probation by failing to keep the peace and be of good behavior. The Crown filed the original probation orders and there is no dispute that Mr. Guppy is the individual named in them. Although I accept that the Crown has proven all the essential elements of the failure to comply charges beyond a reasonable doubt, I find him not guilty of both charges.
[37] Mr. Guppy suffers from a serious mental disorder. There is no dispute that his mental disorder played a large role in his unprovoked attack on his father and sister. I have convicted him of assault and assault with a weapon and he has served a lengthy period of pre-trial custody for those offences. The fact that he also failed to keep the peace in accordance with his two outstanding probation orders is a triviality in these circumstances. No public good is served by saddling Mr. Guppy with two additional convictions for failure to comply with probation when he has been found guilty and served a meaningful sentence for the underlying substantive offences.
[38] The Supreme Court of Canada recently commented on the deleterious effect that unnecessary bail conditions can have on vulnerable members of the community. In R. v. Zora, Justice Martin stated:
[5] Offences under s. 145(3) are very common, on the rise, and often involve questionable conditions imposed upon vulnerable and marginalized persons. Parliament has recently acted to address how numerous and onerous bail conditions interact with s. 145(3) to create a cycle of incarceration, especially among the most vulnerable in our population.
[39] Much the same can be said of unnecessary convictions for failure to comply with probation. A conviction for breaching a court order will make it more difficult for a defendant to obtain bail in the future; it may disqualify him from receiving social supports such as Bail Program; and such convictions are routinely used to diminish a defendant's credibility as a witness. All these repercussions contribute to the cycle of incarceration described by Justice Martin in Zora.
[40] Professor Don Stuart analyzed the defence of De Minimus Non Curat Lex in Canadian Criminal Law - A Treatise. After a scholarly review of the common law roots of the defence and its historical application in Canada, Professor Stuart concluded as follows:
The de minimus principle… should be viewed as a residual dispensing power. It is available in the case of any offence and for this reason alone is preferable to the discharge provisions which are inapplicable to several classes of offence and suffer from defects already discussed… the ancient de minimus principle could provide an ideal vehicle for judges to ensure that in some doubtful cases the criminal law can be used with total restraint, and that the accused can be given the full benefit of the doubt even if technically guilty. As can be seen most clearly in the decision in S., the maxim can become a vehicle for a judge invoking the social purpose rather than literal approach to statutory construction.
[41] Professor Stuart's comment regarding the social purpose of the criminal law is apt in this case. No social purpose is served by convicting Mr. Guppy of two additional counts of failure to comply with probation orders when the gravamen of those offences is only a failure to keep the peace. If Mr. Guppy is ever found guilty of another criminal offence, the fact that he was on probation at the time of these offences will be readily apparent from the conviction dates. It is not necessary for this court to register criminal convictions solely to alert future courts to this obvious fact.
[42] I dismiss the two counts of failure to comply with probation based on the de minimus principle: the law is not concerned with trivialities.
Conclusion
[43] To summarize, I find Roger Guppy guilty of assault against Winston Guppy, assault with a weapon against both Winston and Indira Guppy. I find him not guilty of aggravated assault but guilty of the included offence of assault causing bodily harm to Winston Guppy. He is not guilty of the two counts of failing to comply with probation.
Released: July 22, 2020
Signed: Justice Christine Pirraglia
