Ontario Court of Justice
Date: June 5, 2015
Court File No.: Pickle Lake, Ontario 1544 998 131117 00
Between:
Her Majesty the Queen
— and —
Bonnie Muckuck
Before: Justice Peter T. Bishop
Heard on: March 20, 2015
Reasons for Judgment released on: June 5, 2015
Counsel:
- Terra Schuck, for the Crown
- Francis J. Thatcher, for the defendant Bonnie Muckuck
BISHOP J.:
Charges
[1] Bonnie Muckuck stands charged on or about the sixteenth day of October, 2013 did commit an assault against Sanderson Loon contrary to Section 266 of the Criminal Code and further on or about the sixteenth day of October, 2013 did assault Constable Michael Vezina contrary to Section 270(1) of the Criminal Code.
The Evidence of Constable Michael Vezina
[2] Constable Vezina at the relevant time was stationed in Pickle Lake, Ontario with the Ontario Provincial Police.
[3] He received a call about a domestic assault from the Communications Centre in Thunder Bay and attended at Casual's Convenience Store where he saw Bonnie Muckuck and Sanderson Loon sitting outside on the picnic table.
[4] Ralph Spade was also there and this officer spoke to Tanis Jonasson, a clerk at Casual's Convenience Store, who witnessed what had happened inside the store.
[5] Constable Vezina arrested Bonnie Muckuck for domestic assault and he believed that she had been drinking but was not intoxicated. There was little or no questioning of Bonnie Muckuck or Sanderson Loon.
[6] In the process Ms. Muckuck's right leg struck him in the groin area.
[7] He had Ms. Muckuck against the cruiser and she kicked him again in the same area and he was holding her arms extended near the front of the driver's side of the police cruiser. Her right leg moved upward into his groin area.
[8] Constable Brent Woolgar arrived to assist, and Constable Woolgar put Ms. Muckuck in the rear seat of the cruiser and he held her legs. He read her rights to counsel.
[9] Ms. Muckuck was transported to the lodging area at the local detachment where she complained about pain in her upper left arm and shoulder and he contacted a paramedic.
[10] While transporting to the detachment, Ms. Muckuck was screaming and kicked the roof of the cruiser and was yelling loudly. In his mind she was not complaining about the pain.
[11] He observed bruising on Ms. Muckuck with a dark purple area in the upper arm, shoulder area and called the paramedics. He estimated that the time lapse was about thirty minutes since the incident and the observation of the bruising.
Evidence in Cross Examination
[12] When he arrived at Casual's Convenience Store Sanderson Loon and Bonnie Muckuck were not fighting. Bonnie Muckuck had been drinking but was not intoxicated. When Bonnie Muckuck kicked back he held her at arm's length and had her against the cruiser. He was in front of the driver's side mirror in the wheel-well area of the cruiser. He confirmed that the type of kick was a "donkey kick".
[13] He denied throwing Bonnie Muckuck on the hood of the cruiser nor did he put Ms. Muckuck in a half-nelson. He denied breaking her arm but tried to gain control of her. When in the lodging area she complained that the police had done this to her.
Evidence of Constable Brent Woolgar
[14] Brent Woolgar is a constable with the Ontario Provincial Police and received a call from the Thunder Bay Communications Centre. He arrived at Casual's Convenience Store and observed Constable Vezina trying to restrain Ms. Muckuck by the picnic table.
[15] Ms. Muckuck was trying to pull away and Constable Vezina was trying to restrain her.
[16] Constable Vezina told Constable Woolgar that she was under arrest and that he was attempting to handcuff her but she kept pulling away. He was trying to handcuff her to the rear.
[17] Constable Woolgar assisted and brought her arms to the rear and attempted to calm her down.
[18] He recollects Constable Vezina advising Ms. Muckuck that she was under arrest for assaulting police but there was no mention about the assault on Sanderson Loon.
[19] Constable Woolgar saw some dirt which resembled a shoe print in the crotch area of Constable Vezina. No photographic evidence was presented.
[20] While effecting the arrest, Ms. Muckuck was kicking towards him, her behaviour was assaultive in nature. He used his knee to get her off balance and handcuffed her to the rear. While in the cruiser Ms. Muckuck said that she was in pain and he advised her that he would get her medical attention once they got to the detachment.
[21] Constable Woolgar spoke to Sanderson Loon and dealt with Richard Muckuck who was showing signs of intoxication. His assessment was that Richard Muckuck was highly intoxicated and he took no statement from him.
[22] Ralph Spade was present and saw the whole incident.
[23] Constable Woolgar returned to the Pickle Lake detachment separately and spoke to Bonnie Muckuck who complained about her shoulder hurting and Constable Woolgar arranged for the Emergency Medical Services to attend to her.
[24] When Constable Vezina took the handcuffs off of Bonnie Muckuck she appeared to be in pain.
[25] Bonnie Muckuck moved her shirt over and Constable Woolgar saw the dark bruising on the left shoulder and it had a weird shape and the front was larger than normal.
Evidence in Cross Examination
[26] He did not see Bonnie Muckuck kick Constable Vezina but she tried to kick him but made no contact. He observed a light dirt impression resembling a foot print in the front of Constable Vezina's pants.
[27] Bonnie Muckuck is a small woman but he did not recall what footwear she was wearing. It took approximately four minutes for her to complain about the pain and she stated that the cops did it to her.
[28] Constable Woolgar told Ms. Muckuck that the police did not hurt her shoulder and that she must have hurt it earlier.
Evidence of Tanis Jonasson
[29] Ms. Jonasson was a clerk at Casual's Convenience Store.
[30] On October 16, 2013, she was working and called the police because Bonnie Muckuck and Sanderson Loon were in the store both inebriated. She observed Bonnie Muckuck grab Sanderson Loon's packsack and slapped him once and she asked them to leave.
[31] Sanderson Loon wore the packsack normally (straps over his shoulder) and she grabbed the packsack and he turned around and told her to stop at which point she slapped him once.
[32] At first, she was in the store, but then went outside to pump gas.
[33] She did not see Ms. Muckuck getting hurt by the police as she was trying to wiggle away from them. It appeared to be a "normal situation".
[34] She conceded that she did not see the entire incident outside but that it looked like she tried to kick the officer a couple of times but she did not see Bonnie Muckuck on the car.
[35] Bonnie Muckuck was rambling, mad, angry and swearing.
Evidence in Cross Examination
[36] While in the store, she observed Bonnie Muckuck grab the backpack and push it forward and back and Sanderson Loon had been drinking and somewhat lost his balance. She observed this type behaviour on two or three times in the past, and when asked them to leave they did. She did not see what lead up to this shaking or slapping of Sanderson Loon.
[37] It did not appear that Bonnie Muckuck was in any pain when she left the store. Sanderson Loon convinced her to leave and they did.
[38] She was busy pumping gas but saw Bonnie Muckuck and Officer Vezina by the passenger side of the rear door behind the mirror. She was approximately ten feet away and then returned to the store.
Evidence of Eric Dalzell
[39] Mr. Dalzell is a paramedic and arrived on October 16, 2013 to assist Ms. Muckuck.
[40] There was bruising and he suspected dislocation or fracture to an arm as there was a bluish-purplish colour to the injury.
Documentation
[41] The following documentation was filed on consent:
- Ambulance call report;
- Ornge patient call report;
- Documentation from the Meno Ya Win Health Centre in Sioux Lookout including:
- a) Consultation report;
- b) Radiology reports;
- c) Out patient records
[42] Contained in the Meno Ya Win report were physician's notes indicating that Ms. Muckuck was apparently in an altercation with the police and injured her left shoulder and was brought to the hospital by air ambulance. There was bruising, swelling to the shoulder, a displaced and a comminuted fracture of the proximal humerus. The distal fracture fragment was medially displaced. The humeral head remains in articulation with the glenoid. There were remote left sided rib fractures to the sixth and seventh rib.
Evidence of Bonnie Muckuck
[43] Ms. Muckuck gave her evidence through an Ojibway translator. On the day in question there was a fight but she did not know who was involved. She did not remember a fight with Sanderson Loon.
[44] She stated that her shoulder and arm was broken by the police.
[45] When the police arrested her they broke her arm as they threw her around. They threw her around by the police car.
[46] She recollects that her arm was broken when the police put the handcuffs on her.
[47] She complained about the pain to the guard at the police station and the guard stated that they would get someone to look at her.
[48] Her arm is still sore and it's painful when she tries to pick up things.
Evidence in Cross Examination
[49] Her shoulder was painful at the time and is still painful. She denied drinking that day or before the arrest. She usually drinks red wine but was not inebriated on that day.
[50] She knows that the police assaulted her and she does not remember any fight with them.
Evidence of Ralph Spade
[51] Mr. Spade was at the picnic table at Casual's Convenience Store when Ms. Muckuck was arrested. Sanderson Loon and Bonnie Muckuck walked around with a backpack as was their habit.
[52] Ms. Muckuck and Mr. Loon were standing around drinking as each had their own bottle and he recollects being half drunk.
[53] He remembers Bonnie Muckuck and Sanderson Loon arguing and Bonnie Muckuck went back to Casual's and came back to the picnic table.
[54] The police officer arrived and asked questions and arrested Bonnie Muckuck.
[55] Bonnie Muckuck did not want to be arrested and she had a hard time walking as is her normal condition and she might have kicked the police as he turned her around.
[56] He recollects that Ms. Muckuck was near the front part of the hood in the middle of the car.
[57] The officer put handcuffs on her, she is a small lady and Richard Muckuck said "take care she is an old lady" he observed her right arm was twisted behind her back and did not know if she had any injuries before this occurrence.
Evidence in Cross Examination
[58] He did not want to get arrested because he was drinking earlier in the day but wasn't drunk. His observation was that Bonnie Muckuck would stagger even when she wasn't drinking.
[59] His observation was she was put on the hood of the police car and he doesn't know too many other people who were ever put on the hood while being arrested. He was not surprised when he heard later that she had some injuries.
Evidence of Keith Wasakeesic
[60] Mr. Wasakeesic related that on October 16, 2013 he was outside the Northern Store and he observed the interaction between the police and Bonnie Muckuck.
[61] During the arrest the police officer got kicked. He also stated the police picked Bonnie Muckuck up by the arms and slammed her on the hood and she had her right hand behind her back and he never let go. He stated that Bonnie Muckuck's right arm was pushed up and the police officer kept it there.
[62] He stated that he was drinking tea and he spoke up and said "hey don't do that" he was concerned about the rough treatment and that the arm cannot be bent that far. The first officer kept Ms. Muckuck on the hood until the second officer arrived.
Cross Examination
[63] In cross examination, he stated that he wasn't drinking that day except for tea and that Ms. Muckuck tried to get away. He was in front of the Northern Store when all of this happened and it was a court date. He estimates that he was approximately one hundred feet away from the occurrence.
Decision
[64] Having heard all of the evidence I am finding that I have a reasonable doubt whether or not Bonnie Muckuck assaulted Sanderson Loon on October 16, 2013.
[65] Ms. Jonasson's evidence is consistent with rough-housing or kibutzing by Ms. Muckuck with a long term partner who always walked around with a shared packsack. The court is left in a quandary as to who actually owned the packsack and whether this was a dispute between spouses. The parties immediately left Casual's Convenience Store when asked to do so and were creating no further difficulties when approached by the police officer at the picnic table. Very little investigation, if any, was done by Constable Vezina as he simply spoke to Ms. Jonasson. There was no evidence as to questioning of Bonnie Muckuck or Sanderson Loon as to what happened in the store. There was no certitude of the fact of the offence or the seriousness of the offence with Sanderson Loon. There was no evidence about the need for detention or relating to the assault on Sanderson Loon. As Ms. Muckuck was drinking but not intoxicated. Ms. Jonasson did not observe what transpired immediately before Bonnie Muckuck shaking the packsack and slapping Sanderson Loon.
[66] Without Sanderson Loon's evidence, which is impossible because of his death (not related to this incident), the court cannot find beyond a reasonable doubt that the altercation was anything more than consensual rough-housing between two long term partners. There is no evidence with respect to the force of the slap and it may meet the de minimis test. Ms. Jonasson's evidence by itself does not amount to an assault when viewed objectively without the input from Mr. Loon. Ms. Jonasson was concerned about keeping the peace in the interior of the store and the fact the parties complied with her request to immediately leave militates against a conviction for criminal assault.
[67] Ms. Muckuck has no recollection of the occurrence with Sanderson Loon. She had been drinking but was mainly concerned with injuries inflicted on her by the police. She remembers the most significant occurrence of that day being arrested and in her words assaulted by the police. On all of the evidence she was drinking but not intoxicated.
[68] With respect to the assault of the police officer, I am finding that the Crown has not proven that charge beyond a reasonable doubt for the following reasons:
The injuries to Ms. Muckuck were caused by Constable's Vezina and/or Constable Woolgar during the arrest. There is no other logical explanation for the causation of those injuries. Ms. Muckuck was acting up in the convenience store and there was no evidence of any pain prior to the arrest and she was able to walk out of the store without incident.
There is also no evidence that Ms. Muckuck suffered any injuries prior to the arrest. Constable Woolgar was attempting to deflect responsibility for the cause of these injuries when he suggested to Ms. Muckuck that the police did not hurt you and you must have had these injuries prior to this occurrence.
Ms. Muckuck was screaming and kicking at the roof of the cruiser on the way to the detachment. This is also consistent with being in extreme pain, being handcuffed to the rear and having her arm forcibly pushed up to affix the handcuffs. She had already suffered the broken arm and the broken ribs. She was not intoxicated as confirmed by the officers or out of control. She was forcibly handcuffed with her hands behind her back, in a position which would cause extreme pain as injuries had already occurred.
Ms. Muckuck complained to Officer Woolgar when in the cruiser about the pain and when she got to the detachment about the extreme pain which necessitated the arrival of a paramedic.
I did not find that Ms. Muckuck was completely unaware of her circumstances or intoxicated beyond comprehension at the time of her arrest. Her first language is Ojibway and there was no translator present to interview Ms. Muckuck at the time of the arrest. Further, the officers both indicated that she had been drinking but was not intoxicated. Officer Vezina described Ms. Muckuck's kick as a donkey kick when being spun around and is consistent with a person flailing about when being arrested.
Ms. Muckuck was described as a frail woman by the medical practitioners and the actions of handcuffing her from the back grabbing her arms forcefully and pushing her up against the cruiser by the mirror area or on the hood of the cruiser (as two witnesses describe). If the arrest happened the way Constable Vezina states, there would not be such serious injuries to her, namely a broken arm and broken ribs. Ms. Muckuck appeared as frail, almost bird like when presenting her evidence in court. Ms. Muckuck was drinking and has little or no recollection of the altercation with Sanderson Loon as the main event of her life on this day was being injured by the police officers.
The kick in the groin area is consistent with being spun around by Officer Vezina and her legs coming up and striking the officer in that area in a donkey kick motion which was confirmed by Constable Vezina.
I accept the evidence of Ralph Spade as to the circumstances concerning the arrest. He had been drinking, but was very clear and not shaken in cross examination. He didn't say anything to the police because he had been drinking and did not want to be arrested himself. His evidence was Officer Vezina forcefully put Ms. Muckuck on the hood of the cruiser.
With respect to the evidence of Keith Wasakeesic, I do not totally accept his evidence. He may have seen part of the incident but was far removed to accurately describe what happened in its entirety. He may have seen Ms. Muckuck on the hood of the cruiser but that is doubtful. The actual distance from the front of the Northern store is approximately three times to that described by Mr. Wasakeesic which he stated was one hundred feet. It is immaterial whether it was a court day or not. Mr. Wasakeesic was in front of the Northern Store and would not have been able to observe all of the particulars of the arrest.
[69] With respect to resist arrest being an included offence of assault police, I accept the reasoning in R. v. NC, 2004 ONCJ 285 where Justice Brown concludes:
"where a detained person resists the physical aspects of the arrest and struggles with the officer, without intentionally applying force to them, there is no assault and there could be no assault with intent to resist arrest……"
[70] The elements of Section 129 are different from assault police. Ms. Muckuck was not charged with assaulting Constable Woolgar or resisting Constable Vezina or Woolgar.
[71] I have reviewed the analysis in R. v. W.(D.), 63 C.C.C. (3d) 397 and have described the evidence of the accused and other witnesses which I accept and reject.
[72] Using the third component of the analysis in R. v. W.(D.), I am finding the Crown on all of the evidence has not proven that Ms. Muckuck intended to assault Constable Vezina. A not guilty verdict will enter.
Released: June 5, 2015
Signed: "Justice Peter T. Bishop"