Court File and Parties
Court File No.: BIG TROUT 1511 998 14 142436
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Murray George
Before: Justice Peter T. Bishop
Heard on: October 17, 2014
Reasons for Judgment released on: November 6, 2014
Counsel:
- T. Schuck for the Crown
- J. Bilton for the accused Murray George
Judgment
BISHOP J.:
[1] Murray George stands charged on or about August 9, 2014 did commit an aggravated assault on Jordan McKay contrary to Section 268 of the Criminal Code and further on or about the 9th day of August, 2014 did commit fail to comply with undertaking contrary to Section 145 of the Criminal Code, to wit consume alcohol.
Evidence of Jordan McKay
[2] Mr. McKay is twenty two years of age and friends with the accused.
[3] On August 9, 2014 he was assaulted by Murray George outside their home.
[4] He recollects talking outside the home and was hit in the face with a punch. He does not know how many times he was hit. He does not remember if he was punched elsewhere.
[5] He had been drinking and doesn't remember anything after getting punched in the face. He did not see anyone else.
[6] He walked home where he stayed for a while and went to sleep.
[7] He then woke up and went to the nursing station and he thinks that Georgina took him to the nursing station but he is not sure about that.
[8] He was then transported to Thunder Bay hospital and does not really recall talking about anything in general with Murray George but there was a normal tone of conversation.
[9] After he was punched by Murray George he grabbed him on the front of the shirt and he tried to protect himself but doesn't remember anything else except it took time to heal.
Evidence in Cross Examination
[10] He admits that he was drinking and that he was drunk with a number of people. They were drinking home brew and he was intoxicated that night. He spoke to the police approximately five days after the incident.
Evidence of Teresa McKay
[11] Ms. McKay is the mother of Jordan McKay.
[12] She stated that Murray George lived with them for a while or for a few years.
[13] A couple of evenings after the incident, she engaged in a chat line on Facebook with Murray George. He stated that he remembered it wasn't him. The context of the Facebook chat was filed as Exhibit 2 and the court made a finding that this was a Facebook chat conversation between Teresa McKay and Murray George as several previous conversations were admitted with a picture of Murray George attached.
[14] The relevant conversations begin at 11:39 p.m. on the 10th of August, 2014:
Murray George (11:39 p.m.): I don't expect u to forgive me but understand that i was. It in my right state of mind I would never wanna harm Jordan I love him as a brother…..I have a lot of demons that surround me
Not*
Teresa McKay (11:57 p.m.): are you admitting to me that it was you who did that to him…if you are please turn yourself in…I don't want anything more worse to happen…even to you..although I am so mad at what happened tohim…nobody deserves to be beaten the way he was..if there were others that were involved please tell them as well…that is enuf bloodshed…we calledyou our son…and I would like to keep callingyou ourson…although its hard right now…please do the right thing if not for you…then do it for Jordan
Murray George (11:58 p.m.): I will do the right thing I just wanna spend my last night with my kids
And it was me and no one else was envolved
And I'm disowning my self from ur family I am not worthy to be a part of ur loving family
U tried to better me but I was ignorant
Thursday is when I got court
But I wanted to ask u if I took it to trail would u allow me to get out
If not I'm prepared to serve whatever time I shall receive
Teresa McKay (August 11 12:05 a.m.): why would you want to take it to trial…if Jordan has to live with whatever damage is done to him…I expect you to do the same…but 1 thing I ask of you…give yourself time and give us time to heal from this hurt we are going through…then maybe one day we can start over…but it will also depend on what Jordan will say and we have to respect his wishes…
Murray George (12:07 a.m.): I say this becuz the last time I was in front of judge he said I would receive the full sentence of another violent charge
The judge isn't gonna have mercy on me this is why I ask
Trial might be my only way and that will take time a month or 2
Teresa McKay (12:14 a.m.): rightnow what I'm feeling is you did this and you serve whatever is gonna be given…you have no idea what he is going through right now..its is very overwhelming that I am breaking down…becuz of the damage, pain hurt he is going through…he called you brother becuz u were his brother…we loved you
Murray George (12:20 a.m.): I know and I'm sorry…..
I will serve whatever is given to me
And thanx for everything u have done for me in the past I will always be forever grateful for ur hospitality and love
I guess this goodbye until then…..take care of Jordan and the family I love u and again I'm sorry
Teresa McKay (12:23 a.m.): please take care of yourself…we will always care for you…
Murray George (12:24 a.m.): I'll do everything in my power to change….I will not allow myself to return unless I am fully changed into person god wants to be
Goodbye and farewell I'll write a letter to you and jack while my incarceration
Teresa McKay (12:26 a.m.): thank you murrey
Evidence in Cross Examination
[15] At one time Murray George did not remember what had happened and early on Teresa McKay told the police that she thought that Chris Hudson had been a participant.
[16] She admitted that she had not seen what had happened and that Murray George stated that he was not in his right state of mind and really didn't know what had happened and did not remember what had happened.
[17] The accused elected not to call any evidence which is his right.
[18] On consent the medical records were filed as Exhibit 1 which can be summarized as follows:
i. Jordan McKay was admitted to the Thunder Bay Regional Hospital on August 9th, 2014 and discharged on August 20th, 2014.
ii. He was presented with a traumatic pancreatic injury and a maxillary fracture and suffered from ethanol intoxication. The discharge summary shows that Mr. McKay was previously healthy and was admitted for injuries and seen by Dr. Pynn for a complicated zygoma/maxillary fracture. He slowly developed abdominal pain over the first two days of his admission and a scan revealed a transected pancreas in the mid body.
iii. He was taken to the operating room on August 11th for urgent distal pancreatectomy and splenectomy. Several plates were inserted in his face to correct the fractures in that area.
[19] At the conclusion of the Crown's case, the Defence brought a motion for nonsuit with respect to both charges. The nonsuit was granted with respect to fail to comply as absolutely no evidence was called with respect to Mr. George being on an undertaking. The motion for nonsuit was not granted with respect to the aggravated assault charge.
Position of the Crown
[20] The Crown submits that there is an admission by the accused that he punched the complainant in the face. There was a complex facial injury and a L shaped plate had to be inserted with screws. The complainant's spleen was removed and half of the pancreas were removed.
[21] The Crown submits that no one else can be responsible and he confessed to the complainant's mother by stating that he doesn't expect them to forgive him but he was not in his right state of mind and he was solely responsible.
Position of the Defence
[22] The defence is of the view that there should be a reasonable doubt that this accused caused the extensive injuries to the complainant.
[23] The injuries as described by the medical practitioner far exceed a punch to the face and removal of the pancreas and the spleen.
[24] Mr. McKay stated that there were other people outside the home and he walked to his home and stayed there for a while before going to the nursing station.
[25] The Crown has not called any evidence with respect to what happened between the admitted punch by Murray George to the face and Mr. McKay's walk home and what happened at home nor was there any evidence called with respect to his transportation to the nursing station, by whom and if there were any other altercations on the way to seek medical attention.
[26] Mr. McKay's recollection was that the talk with Mr. George was in a normal tone. He admitted that he was drunk and he was drinking with a number of people consuming home brew. He spoke to the police approximately five days after the incident.
[27] At the time of the Facebook communication with Teresa McKay there is no evidence that Murray George had any idea of what the injuries were to Jordan McKay.
[28] Mr. George's confession is less than complete. He admitted that he was responsible and no one else was responsible but there was no clarification as to what he was admitting to doing. He admitted to the police that there was one punch to the face which would not have caused the injuries to his spleen and his pancreas and one punch to the face would not have caused the extensive facial injuries as reported by the physician. Jordan McKay is of little or no assistance in clarifying this due to his high degree of intoxication.
[29] The Crown's case is further compromised by the police officers telling the accused that he was responsible and Jordan McKay's mother Teresa McKay told the police she believed that someone else was responsible for the injuries to her son.
Decision
[30] In all the circumstances, I am finding the Crown has not proven the causation with respect to the aggravated assault but find the accused guilty of assault simpliciter for the punch as described by Mr. McKay.
[31] I will receive submission with respect to sentence.
Released: November 6, 2014
Signed: Justice Peter T. Bishop