WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486(3) of the Criminal Code. This subsection and subsection 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (3), read as follows:
486.— (3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction.
Court Information
Court File No.: K[…] Lake
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
S.A.
Before: Justice P.T. Bishop
Heard on: April 18, 2013
Reasons for Judgment released on: June 25, 2013
Counsel:
Joshua McKay — for the Crown
Aaron Grupp — for the defendant S.A.
BISHOP J.:
Charges
[1] S.A. stands charged that:
On or about the 27th day of June, 2012, at the First Nation Territory of K[…], in the Northwest Region, did wound T.B. thereby committing an aggravated assault contrary to Section 268 of the Criminal Code;
On or about the 27th day of June, 2012, at the K[…] Lake First Nation, in the Northwest Region, in committing a sexual assault on T.B. maim T.B., thereby committing an aggravated sexual assault contrary to Section 273(1) of the Criminal Code.
Evidence of T.B.
[2] T.B. is thirty-one years of age and works at the Northern Store as a stock person. The accused is his distant cousin.
[3] On June 26, 2012 he was drinking at A.M.'s place with her boyfriend, S.A.
[4] They were drinking homebrew.
[5] Things got a little crazy and A.M.'s child wanted to go out and A.M.'s parents came in and he took off for awhile as her parents did not approve of drinking.
[6] He estimates he had two litres of homebrew and he felt a little buzzed.
[7] A.M. was drunk and so was the accused.
[8] Previously he had dropped off two litres of homebrew at his cousin's, retrieved them and then returned to A.M.'s residence.
[9] A.M. was there alone and he made a move on her, which was not physical. She was just lying on the mattress.
[10] S.A. came in and he was just sitting there and started hitting him on the head with his fists and he did nothing but cover his face and didn't say anything.
[11] He doesn't remember how many times he was hit but he was knocked out and he woke up in the nursing station. He had a sore face and head and had only one eye open.
[12] He suffered a skull fracture and six to seven teeth were knocked out and a bone under his right eye was fractured.
[13] As a result of his injuries he was medivaced from Sioux Lookout and then on to Thunder Bay and was hospitalized for approximately a month.
[14] He also had injuries to his penis, resembling a knife cut, but he can't really be certain. The physicians recommended that he be circumcised and he agreed to that procedure. He stated that he is not sure how he was injured but the only people in the room were S.A.; and A.M. did nothing to him. The photos of his injuries were filed as Exhibit One.
[15] He further stated that he just flashed A.M. and was about to show her his privates as he told her he had "big privates". He didn't think he had his penis out.
Cross-Examination
[16] T.B. admitted that he couldn't remember that well because he was buzzed and he was feeling good. He admitted drinking two litres of homebrew but he can't really remember. He drank for a while and stashed some of the homebrew at A.M.'s house and took a few more shots.
[17] He and A.M. were drinking and he was interested in sex as he was on the bed and she also was lying on the bed. They chatted a little bit and he had his penis out when S.A. came in. He can't remember being hit on the head so many times.
[18] He stated that after this injury he has more trouble remembering things.
[19] He estimated that he drank four litres of homebrew and may have consumed as many as six litres of homebrew.
[20] Further he stated that he could have used some oxycotin and probably smoked a couple of joints.
[21] He was planning on having sex with A.M. but he did not have sex and she did not say "no".
Evidence of C.F.
[22] C.F. is thirty-eight years of age and T.B. is his nephew.
[23] A.M. came to his residence and woke he and his wife at approximately 5:00 a.m. and stated that S.A. was beating up T.B.
[24] He went over there and A.M. was drunk. She stated that she had been dragged around by the hair by S.A. A.M. then stayed at their house.
[25] He observed T.B. on the mattress pretty beat-up and he had to move him as he was hardly breathing. T.B. was on his back and blood was on his t-shirt and on his leg area.
[26] He asked his wife to call the police and shortly thereafter the Nishnawbe-Aski Service police officers walked in.
Evidence of Cst. Troy Wlodareak
The First Incident with S.A.
[27] Cst. Wlodareak is a Nishnawbe-Aski Service police officer. He was called by D.M. about a drinking party at A.M.'s residence at 11:45 p.m. on June 26, 2012. He and Cst. Chickekoo attended at 11:48 p.m. as Cst. Chickekoo was already at the scene.
[28] A.M. stated that she was not assaulted but Cst. Chickekoo arrested S.A. for breach of the peace as he was unsteady on his feet and intoxicated. S.A. was slurring his speech and there was an odour of homebrew about him.
[29] There is no police lock-up facility in K[…] so he took S.A. to the Band Office where he laid down. He was released at approximately 3:43 a.m.
The Second Incident with S.A.
[30] At 5:30 a.m. he received a call from L.F. that S.A. was beating up T.B.
[31] He arrived at the A.M. residence and observed blood on the floor and T.B. was just in his t-shirt and also had blood on him. T.B. was taken to the nursing station and he further observed long hair all over the floor at A.M.'s house. Photos were taken showing apparent blood staining and extracted hair which was filed as Exhibit Two.
[32] A.M. stated that nothing happened but T.B. had a swollen eye, bruising and two cuts to the lower end of his penis.
[33] When he first observed T.B. he was wearing no pants or underwear.
Evidence of S.A.
[34] S.A. gave evidence in his own defence and confirmed that he had been drinking at A.M.'s house.
[35] In the early morning hours of June 27, 2012 he had been arrested and released by Cst. Chickekoo and he returned to A.M.'s residence and there he heard some screaming. He opened the door and heard A.M. say "don't, stop it".
[36] He saw T.B. forcing himself on A.M. and he then blacked out and he does not know what he did.
[37] He further stated that when A.M. says "no" she means "no".
[38] He further described T.B. with his pants off trying to spread A.M.'s legs apart and A.M. had no pants on.
[39] After observing his partner with T.B. he snapped.
[40] The next recollection he has is that he is on the grass by the water treatment plant.
Cross-Examination
[41] S.A. heard noises coming from the porch as the police drove off when he was first released but doesn't remember anything about the hair.
[42] He observed A.M. in the middle of the bed and she had her underwear off.
[43] He did not see T.B.'s penis in her vagina but T.B. was trying to take A.M. from behind as A.M. was on her back and stomach.
[44] He went to kick him away and grabbed T.B. just a little as he could just feel the effects of alcohol. He had no injuries but A.M. had bruises on her legs and arms.
[45] He did not ask A.M. what had happened and he was convinced that T.B. was committing a crime.
Evidence of A.M.
[46] A.M. confirmed that she was drinking and doesn't recall what time T.B. came over.
[47] All that she can remember is that she was getting up from the floor and she left the house and that T.B. had sex with her.
Cross-Examination
[48] She is in a relationship with S.A. and she woke up the neighbours at C.F.'s house in the early morning hours.
[49] She denied that S.A. grabbed her hair and dragged her around the room.
[50] She recalls saying that S.A. beat-up T.B. and she tried telling her father she was sexually assaulted.
[51] She did not remember T.B. showing her his penis and saying that he had "big private parts". She doesn't remember seeing S.A. but she did have sore, bruised knuckles.
Position of the Defence
[52] S.A. submits that he was justified in using force to defend himself or anyone else pursuant to Sections 27 and 37 of the Criminal Code of Canada and further was justified in coming to the aid of his partner pursuant to Section 34 of the Criminal Code of Canada vicariously to defend her against a non-provoked assault.
Position of the Crown
[53] The Crown submits that in order to take advantage of Sections 27, 37 and 34 Criminal Code of Canada, the court must first determine that an assault has taken place.
[54] On the evidence, the Crown submitted the court should find S.A. guilty of aggravated assault for wounding and sexual assault causing bodily harm relating to the injuries to T.B.'s penis.
Decision
[55] Having heard all of the evidence, I find the Crown has proven beyond a reasonable doubt aggravated assault by wounding for the following reasons:
I accept T.B.'s evidence that he was attacked viscously by S.A. and caused the skull fracture, the loss of the teeth and a fracture to the orbital bone around his eye;
There had been a high degree of homebrew consumed by A.M., T.B. and S.A.;
S.A. was clearly the aggressor and when he re-entered the home, finding A.M. and T.B. in a compromising position, he just snapped;
I accept A.M.'s evidence that she attended at C.F. residence and told him that S.A. was beating up T.B. and that she had been dragged around by the hair by S.A. This was accepted as an exception to the hearsay rule as part of the narrative;
There is physical evidence to co-oberate that A.M. was dragged by the hair as large clumps of hair were found in the room where she and T.B. were found engaged in a sexual act and she in fact confirmed that the hair seen in the photos belonged to her.
[56] I find that T.B. was not committing a sexual assault on A.M. but there was a consensual sexual encounter which did not proceed to sexual intercourse.
[57] S.A. was not expected back to the residence and he found A.M. and T.B. engaged in a sexual act. All parties had consumed a great deal of homebrew. S.A. had several hours to sober up and should have been the most competent to remember the facts. I find that both S.A. and A.M. have trial amnesia to explain their actions. A.M. does not want to admit that she was voluntarily engaged in the incident with T.B. and S.A. does not want to fully own up to his responsibility for the assault on T.B. Further, S.A. assaulted A.M. by dragging her by the hair which infers that he was blaming her as well for this sexual encounter.
[58] Neither S.A. nor A.M. disclosed to the police that a sexual assault was taking place until the day of the trial. This is very self-serving and convenient.
[59] I find S.A. not guilty of aggravated sexual assault or sexual assault causing harm as the Crown has not proven an intent on S.A. to sexually assault T.B. There must be some evidence to that effect. The evidence is equally consistent with throwing around, dragging and punching which caused T.B.'s skull fracture, broken teeth and fractured orbital bone. The injuries to T.B.'s penis are incidental to the main assault and consistent with being disrobed as he was found wearing no pants or underwear.
[60] For the reasons stated a conviction will enter with respect to aggravated assault by wounding.
Released: June 25, 2013
Signed: "Justice P.T. Bishop"