Court Information

Ontario Court of Justice

Date: June 14, 2018

Court File No.: Hamilton 17-8186

Parties

Between:

Her Majesty the Queen

— And —

Kristen Heegsma and Shane Murray

Before: Justice J.P.P. Fiorucci

Heard: April 9th, 10th, and May 8th, 2018

Reasons for Judgment Released: June 14th, 2018

Counsel

L. Ellins — Counsel for the Crown

J. Kerr — For the defendant Kristen Heegsma

K. Hetherington — For the defendant Shane Murray

FIORUCCI J.:

INTRODUCTION

[1] In the early morning hours of August 2nd, 2017, Ms. Jennifer Yardley was assaulted in the foyer at the front entrance of 88 Ferguson Avenue North, in the City of Hamilton. This is a home that has been converted into a number of apartments. Ms. Yardley and her fiancé, Jason Appleby, occupy apartment 1, which is in close proximity to the front door of the home and the foyer where the assault occurred.

[2] It is not in dispute that Ms. Yardley suffered bodily harm as a result of being assaulted. Both accused were present at the scene when the injuries were sustained. Both accused are charged with Assault Causing Bodily Harm to Ms. Yardley. As a result of his alleged participation in the assault, Mr. Shane Murray is also charged with breaching four separate probation orders for failing to keep the peace and be of good behaviour.

[3] Ms. Yardley was close friends with Ms. Heegsma on August 2nd, 2017. Ms. Heegsma was in an on-again-off-again relationship with Mr. Murray at the time. Ms. Yardley testified that, at approximately midnight or 1:00 a.m. on August 2nd, 2017, Ms. Heegsma and Mr. Murray attended at her residence uninvited. When Ms. Yardley opened the front door of the home, she and Ms. Heegsma engaged in a brief verbal dispute. According to Ms. Yardley, the dispute escalated to the point where Ms. Heegsma punched her once on the jaw, causing no significant injury. Ms. Yardley retaliated by punching Ms. Heegsma once. Ms. Yardley called this a "consensual fist fight".

[4] Ms. Yardley went on to testify that immediately after she and Ms. Heegsma struck each other once, Mr. Murray jumped in and started throwing punches to her face. According to Ms. Yardley, when Mr. Murray started throwing punches, Ms. Heegsma had backed off and stepped out the front door of the home.

[5] Both accused testified at this joint trial. Like Ms. Yardley, Ms. Heegsma testified that she and Ms. Yardley exchanged one punch each in the foyer, which caused no significant injury to Ms. Yardley, followed by Mr. Murray intervening and delivering the punches which caused the bodily harm. Mr. Murray gave a very different version, claiming that Ms. Heegsma and Ms. Yardley exchanged multiple blows, and that he punched Ms. Yardley only once when it appeared that Ms. Yardley was getting the upper hand on Ms. Heegsma. Mr. Murray claims that after he delivered his one punch, Ms. Heegsma continued her assault upon Ms. Yardley, causing her bodily harm in the process.

[6] The following issues must be resolved in this case:

(1) Has the Crown proven beyond a reasonable doubt that Ms. Heegsma is guilty of Assault Causing Bodily Harm, as a principle, co-principal, or party to the offence?

(2) If the Crown has not proven that Ms. Heegsma is guilty of Assault Causing Bodily Harm, is she nonetheless guilty of Assault simpliciter? This involves a determination of whether Ms. Yardley and Ms. Heegsma engaged in a consensual fist fight which did not cause bodily harm to Ms. Yardley?

(3) Has the Crown proven beyond a reasonable doubt that Mr. Murray is guilty of Assault Causing Bodily Harm, as a principal, co-principal, or party to the offence?

ANALYSIS AND ISSUES

The Application of R. v. W.(D.)

[7] In this joint trial, I must determine the guilt or innocence of each accused separately. For each accused, the W.(D.) framework requires me to evaluate any "evidence (whether from the testimony of the accused, or defence witnesses, or arising from the Crown case) that, if true, is capable of preventing the Crown from proving beyond a reasonable doubt, (1) an element of the offence, or (2) capable of preventing the Crown from disproving beyond a reasonable doubt an element of a defence that is in play."

[8] In a recent article entitled "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment", Paciocco J.A., formerly a Justice of the Ontario Court of Justice, outlined the underlying principles of the W.(D.) reasoning. With respect to each accused:

(a) If I accept as accurate evidence that cannot co-exist with a finding that the accused is guilty, obviously I must acquit;

(b) If I am left unsure whether evidence that cannot co-exist with a finding that the accused is guilty is accurate, then I have not rejected it entirely, and I must acquit;

(c) I must not treat mere disbelief of evidence that an accused has offered to show his or her innocence as proof of the guilt of that accused; and

(d) Even where evidence inconsistent with the guilt of the accused is rejected in its entirety, the accused should not be convicted unless the evidence that is given credit proves the accused to be guilty beyond a reasonable doubt.

[9] I must assess both the credibility of witnesses and the reliability of their evidence. In doing so, I can accept all, some, or none of the evidence of any witness.

Additional Background and Findings of Fact

a. Ms. Heegsma Sleeps Over at 88 Ferguson Avenue North on July 31st, 2017

[10] The night of July 31st, 2017, Ms. Heegsma slept over at Ms. Yardley's and Mr. Appleby's residence. She slept at 88 Ferguson Avenue North partly because she was arguing with Mr. Murray. I accept Ms. Heegsma's evidence that before she left Mr. Murray that day, she told him that she wanted nothing to do with him anymore. I also accept her evidence that she was concerned about this argument with Mr. Murray because he had been abusive in the past and she was afraid that he would be again. This portion of her evidence is amply supported by other evidence in this case.

[11] Ms. Heegsma spoke with Ms. Yardley about the difficulties she was having in her relationship with Mr. Murray, including the abuse. She also told Ms. Yardley that she was leaving Mr. Murray.

[12] On August 1st, 2017, Ms. Heegsma awoke at approximately 9:30 a.m. Ms. Yardley helped Ms. Heegsma pick out clothes for a date she had arranged with another male, named Chris. Therefore, Ms. Yardley knew about Ms. Heegsma's date with Chris.

[13] Ms. Heegsma left Ms. Yardley's residence at approximately 11:00 or 11:30 a.m. to meet Chris. At that point, Ms. Heegsma had not seen Mr. Murray, but he had been trying to contact her. At this point, Mr. Murray did not know that Ms. Heegsma had spent the night at Ms. Yardley's.

b. Mr. Murray Arrives at 88 Ferguson Avenue North after Ms. Heegsma Leaves

[14] Shortly after Ms. Heegsma left Ms. Yardley's residence on August 1st, Mr. Murray arrived there. Mr. Murray hung out for hours at 88 Ferguson Avenue North with Ms. Yardley, Mr. Appleby and Crystal Lane. Crystal Lane was a close friend of Ms. Heegsma's, but was also acquainted with the others.

c. Mr. Murray Finds Out That Ms. Heegsma is Out with Another Man

[15] Ms. Yardley knew that Ms. Heegsma had told Mr. Murray that their relationship was over. Accordingly, Ms. Yardley did not tell Mr. Murray that Ms. Heegsma was out with another man. She felt that, at that point, it was none of his business where Ms. Heegsma went.

[16] However, at some point, when Mr. Murray is hanging out at Ms. Yardley's apartment, he learns that Ms. Heegsma is out with another man at Hutch's restaurant in Hamilton. I accept Ms. Yardley's evidence that it was Ms. Lane (a.k.a. Duke) who told Mr. Murray that Ms. Heegsma was out with another man. Ms. Heegsma testified that, while she was out with Chris at Hutch's, she was messaging Crystal Lane, and disclosed her whereabouts to Ms. Lane.

[17] It is difficult to accept, and I do not accept, Mr. Murray's evidence about how he learned this information. Mr. Murray testified that Ms. Yardley showed him a text message she received from Ms. Heegsma on the evening of August 1st. According to Mr. Murray, in this text message, Ms. Heegsma told Ms. Yardley that she was at Hutch's and was going to bring her fish and chips. Mr. Murray testified that he looked at the number the text message came from and recognized the number as a guy's number. He claimed that Ms. Heegsma had texted him from that number in prior days, so he had programmed the number in his phone.

[18] Ms. Yardley denied telling Mr. Murray that Ms. Heegsma was with another man that day. Ms. Yardley was not asked whether she showed Mr. Murray a text message she had received from Ms. Heegsma from Hutch's. However, I find that it is unlikely that she would have done so, since she had decided not to tell Mr. Murray that Ms. Heegsma was with another man.

[19] Regardless of how Mr. Murray learned that Ms. Heegsma was with another man, it is clear that, upon learning this information, he was angry with her.

d. Mr. Murray Assaults Ms. Heegsma at Hutch's

[20] It is not in dispute that Mr. Murray and Ms. Lane went to Hutch's restaurant to confront Ms. Heegsma for being with another man. Mr. Murray arrived there on his bicycle and Ms. Lane on her e-bike. I accept Ms. Heegsma's evidence that she was sitting on the back patio of Hutch's restaurant with Chris on the afternoon of August 1st, when Ms. Lane and Mr. Murray arrived. Mr. Murray ran up to Ms. Heegsma and said "you're a whore, I can't believe you're with another guy". He then punched her twice. Ms. Lane was screaming at Ms. Heegsma, stating "this is what you get when you lie".

[21] In his evidence, Mr. Murray stated that he went to Hutch's with Ms. Lane to confront both Ms. Heegsma and Chris. When he arrived at Hutch's, Mr. Murray dropped his bike, went to the deck, and "smacked" Ms. Heegsma who had a plate of food in her hand. Mr. Murray then went to go after Chris, but when a lady began calling the police, Mr. Murray picked up his backpack and left on his bike.

[22] I pause to note that, throughout the trial, Ms. Heegsma gave her evidence in a straightforward and balanced manner, with a readiness to make appropriate concessions and to respond to questions when asked. Mr. Murray, on the other hand, was unwilling to make appropriate concessions. For instance, when it was suggested to him on cross-examination that he was obviously a jealous guy, he denied the suggestion, instead saying that he had two other girlfriends when he was dating Ms. Heegsma. It is clear from his actions on August 1st, 2017 that Mr. Murray was indeed jealous and was unwilling to accept Ms. Heegsma's decision to end the relationship. Mr. Murray's unwillingness to concede such an obvious fact in his testimony makes it difficult to accept other portions of his evidence.

e. Mr. Murray Assaults Ms. Heegsma at 88 Ferguson Avenue North

[23] After leaving Hutch's, Mr. Murray discovered that he had dropped his phone. Ms. Heegsma had picked up the phone at Hutch's. When Mr. Murray arrived back at 88 Ferguson Avenue North, he borrowed Ms. Yardley's phone to call Ms. Heegsma. In his words, he told Ms. Heegsma: "drop my fuckin phone off". I accept Ms. Heegsma's evidence that Mr. Murray told her to deliver the phone to Ms. Yardley's home, or it would be ten times worse if he had to come and find her. Mr. Murray acknowledged in his testimony that he screamed and yelled at Ms. Heegsma for ten minutes to bring the phone back.

[24] Ms. Heegsma attended at 88 Ferguson Avenue North with the phone. I accept Ms. Heegsma's evidence that when she arrived there to bring Mr. Murray the phone, Mr. Murray hit her three to four times out front of Ms. Yardley's apartment. This assault resulted in injuries to Ms. Heegsma's nose. This assault was witnessed by Ms. Yardley, Mr. Appleby, Ms. Lane, and possibly two other females. Ms. Heegsma was upset that none of them helped her out when she was being beaten by Mr. Murray, but she stated that she understood that they may not want to risk getting involved because Mr. Murray was a violent person.

[25] Mr. Murray acknowledged in his testimony that when Ms. Heegsma brought the phone to Ms. Yardley's residence, she walked up and handed it to him and he "smacked her again".

[26] Ms. Heegsma left Ms. Yardley's apartment and went to the Hamilton Urban Core to get cleaned up. From there, she went to a Tim Hortons on John and Jackson Street.

f. Mr. Murray Calls Chris to Arrange to Confront Him

[27] After assaulting Ms. Heegsma out front of Ms. Yardley's apartment, Mr. Murray contacted Chris by telephone to arrange to meet him at a Tim Hortons at Wellington Street and Main Street in Hamilton. According to Mr. Murray, the purpose of this meeting was to tell Chris to "stay the fuck away" from his girlfriend.

Ms. Lane was also in attendance at this meeting between Mr. Murray and Chris, where it was made clear to Chris that Mr. Murray was in a relationship with Ms. Heegsma.

g. Mr. Murray Finds Ms. Heegsma at the Tim Hortons and Takes Her Purse

[28] After their meeting with Chris, Mr. Murray and Ms. Lane returned to Ms. Yardley's residence, where Mr. Murray "smoked a couple of joints". Mr. Murray did not really speak with Ms. Yardley about what happened earlier in the day.

[29] At some point, Ms. Lane received a text message from someone at the John and Jackson Tim Hortons. According to Mr. Murray, this text message stated that Ms. Heegsma was at that Tim Hortons "running her mouth" about Mr. Murray smacking her. At this point, Ms. Lane said to Mr. Murray: "Do you want to give her round three?".

[30] Mr. Murray rode his bike to the Tim Hortons. When he arrived, Ms. Heegsma was sitting out front of the store. Mr. Murray said to Ms. Heegsma: "You fuckin realize, yeah like, you know I love you, like. I'm not just going to let you go like that". Ms. Heegsma replied by telling Mr. Murray to get away from her and backing up. Mr. Murray took Ms. Heegsma's purse, left and went back to Ms. Yardley's house. He took Ms. Heegsma's wallet and gave the rest of the contents of her purse to Ms. Lane.

h. Mr. Murray Got High on Crystal Meth

[31] After spending some more time at Ms. Yardley's, Mr. Murray and a friend, Jeremy, went to another friend's house, named Brian. What is clear from Mr. Murray's evidence is that he was discussing with his friends how upset he was that he had caught Ms. Heegsma running around with another guy.

[32] Mr. Murray and Jeremy left Brian's house and went to a nearby park where they got high on crystal meth. Mr. Murray estimated that he got high anywhere between 11:30 p.m. (August 1st) and 12:30 a.m. (August 2nd). At the park, Jeremy was telling Mr. Murray to let it go, but Mr. Murray told Jeremy: "Like I love her man, like fuck, I'm not going to just let that happen".

i. Mr. Murray Finds Ms. Heegsma at an Address on Gibson Avenue in Hamilton

[33] After getting high with Jeremy, Mr. Murray learned from Ms. Lane that Ms. Heegsma was at an address on Gibson Avenue in Hamilton. I accept Ms. Heegsma's evidence that she was at her friend's house on Gibson Avenue to hide from Mr. Murray, but he tracked her down there. Mr. Murray arrived at the Gibson Avenue address with Ms. Lane and Nancy (Ms. Heegsma's step-sister).

[34] According to Mr. Murray, he went to the Gibson Avenue address to get his girlfriend to come home with him. When he arrived there, Ms. Heegsma was on the porch with her laptop. Mr. Murray asked her if she was coming home with him and she said no. I accept Ms. Heegsma's evidence that Mr. Murray told her that she either left with him, or it was going to be bad for everyone in the Gibson Avenue home, which to Ms. Heegsma meant he would go into the home and cause damage and attack the residents.

[35] Mr. Murray's own evidence proves the state of mind he was in when he attended the Gibson Avenue address. He testified that Jeremy did not attend there with him because he knew that Mr. Murray can get violent when he is angry.

[36] I accept Ms. Heegsma's evidence that when Mr. Murray found her at the Gibson Avenue address, she felt she had no choice but to get back together with him.

j. "The Plan" to Go to 88 Ferguson Avenue North to Confront Ms. Yardley

[37] While Ms. Heegsma and Mr. Murray were still on the porch of the Gibson Avenue address, Mr. Murray was accusing her of lying to him, including lying about having spent the prior night at Ms. Yardley's. I accept Ms. Heegsma's evidence that she tried to turn the focus of Mr. Murray's anger from herself to Ms. Yardley by proving to Mr. Murray that she had stayed at Ms. Yardley's the night before, and that Ms. Yardley knew that she had gone out with Chris that morning. Ms. Heegsma wanted to prove to Mr. Murray that she wasn't lying to him in order to avoid being assaulted by him a third time.

[38] When Ms. Heegsma was cross-examined about the issue she had with Ms. Yardley on August 2nd, she stated that Ms. Yardley had told Mr. Murray that she hadn't stayed there the previous night, which caused more of an issue between her and Mr. Murray. I accept Ms. Heegsma's evidence that Mr. Murray made it clear to her that they either attended at 88 Ferguson Avenue North to confront Ms. Yardley about her lying to Mr. Murray, or he would beat her. Based on the day's events, she had every reason to believe that Mr. Murray could carry through with this threat.

[39] When Ms. Heegsma was cross-examined about the reason she decided to attend at Ms. Yardley's on August 2nd, she stated "[t]he full reason is because –the way that Shane looked at it is, we were together whether I said we were or not". Her goal in attending at Ms. Yardley's was to get her clothing and belongings out of the home and to prove to Mr. Murray that she wasn't lying, so that she wouldn't be assaulted.

[40] I accept Ms. Heegsma's evidence that when Mr. Murray and Ms. Lane were egging her on to attend at 88 Ferguson Avenue North to confront Ms. Yardley, she did not plan on fighting Ms. Yardley. However, she readily admitted in cross-examination that she knew any confrontation could possibly lead to a fight, and that there was a greater possibility that this confrontation would turn physical because Mr. Murray would be there. I accept Ms. Heegsma's evidence that she didn't think the confrontation would become physical between her and Ms. Yardley, but thought it would become physical between Mr. Murray and Mr. Appleby.

[41] I reject Mr. Murray's evidence that it was Ms. Heegsma's decision to attend at Ms. Yardley's residence to fight her. He gave internally inconsistent evidence regarding the reason Ms. Heegsma was angry with Ms. Yardley. He first suggested that she was angry with Ms. Yardley because Ms. Yardley knew about Ms. Heegsma being with Chris all day. This reason makes absolutely no sense since it was Ms. Heegsma herself that told Ms. Yardley about her date with Chris. At a later point in his evidence, Mr. Murray gave a totally different reason that Ms. Heegsma was angry with Ms. Yardley, that being that Ms. Yardley had told Mr. Murray that Ms. Heegsma was at Hutch's that day.

[42] Furthermore, I reject Mr. Murray's evidence that, at first, he wasn't going to attend at Ms. Yardley's residence because he knew that Ms. Heegsma was going there to fight Ms. Yardley and he didn't want to be caught breaching his probation. This evidence is completely unworthy of belief in light of the fact that Mr. Murray had earlier in the day assaulted Ms. Heegsma in public twice, stolen her purse, and used drugs, each of which were breaches of his probation.

[43] I find as a fact that Mr. Murray had every intention to attend at 88 Ferguson Avenue North to confront Ms. Yardley and Mr. Appleby, and that he insisted that Ms. Heegsma attend there to be part of the confrontation. It is reasonable to infer that part of the reason he was angry was the fact that Ms. Yardley had not told him that Ms. Heegsma was with Chris that day.

k. Mr. Murray and Ms. Heegsma Arrive at Ms. Yardley's Home

[44] Mr. Murray and Ms. Heegsma arrived at Ms. Yardley's home at approximately 1:00 a.m. on August 2nd, 2017. Ms. Lane and Nancy had also accompanied them there. The evidence of all witnesses, including Mr. Murray himself, is consistent in one material respect regarding what happened when Ms. Heegsma and Mr. Murray arrive at the home, and that is the demeanour of Mr. Murray. Mr. Murray was immediately aggressive and angry. It appears that at this point he was no longer concerned about breaching his probation. Mr. Murray acknowledged in his own testimony that he was there to beat up Mr. Appleby.

[45] I find as a fact that Ms. Heegsma woke Ms. Yardley up by knocking on the front window of the home and telling Ms. Yardley that she was there and wanted her clothes. Ms. Yardley initially told Ms. Heegsma to "drift", or leave. Ms. Heegsma insisted that she needed her clothes and Ms. Yardley agreed to get dressed and come to the front door of the home.

[46] In the meantime, Mr. Murray was in an agitated state. He kicked the front door of the home, but when the door wouldn't give, he went to the nearby window. Mr. Murray ripped the screen out of the window, yanked the blanket that was covering the window off and pushed a fan halfway across the living room floor of the apartment. He then stuck his head through the window and yelled to Mr. Appleby, "open the door you fucking goof". Mr. Murray stated in cross-examination that calling someone a "fucking goof" is an instant challenge to fight. I accept Ms. Yardley's evidence that Mr. Murray was also calling her a "cunt" and Ms. Heegsma's evidence that Mr. Murray was also telling Ms. Yardley to come out. Mr. Murray acknowledged in cross-examination that he had got high on crystal meth at about 11:30 p.m.

l. What Happens When Jennifer Yardley Opens the Front Door of the Home?

[47] Ms. Yardley opened her apartment door on her way to opening the front door of the home. Her apartment door closed behind her. Mr. Appleby remained in the apartment looking for his glasses.

[48] I find as a fact that when Ms. Yardley opened the front door of the home, she was face to face with Ms. Heegsma. Ms. Heegsma took one step into the cove area inside the front door of the home, with Mr. Murray standing very close behind Ms. Heegsma.

[49] Both Ms. Heegsma and Ms. Yardley testified that they had a discussion at the front door of the home about clothing, and that this discussion became heated. Although Mr. Appleby did not witness this conversation because he remained inside the apartment, he did confirm that he initially heard talking before any commotion that sounded like a physical altercation. I reject Mr. Murray's evidence that Ms. Heegsma and Ms. Yardley immediately began to throw punches at each other without saying anything at all.

[50] Ms. Yardley told Ms. Heegsma that her clothes were not there, and that Mr. Murray and his friend had taken them. This resulted in yelling back and forth between the two women. I find as a fact that this verbal exchange escalated to the point where Ms. Heegsma punched Ms. Yardley once on the jaw, causing no significant injury to her. Ms. Yardley retaliated by throwing one punch.

[51] I accept Ms. Yardley's evidence that at no time had she and Ms. Heegsma agreed to engage in a fist fight. Ms. Yardley's punch was simply in response to Ms. Heegsma's punch. Prior to Ms. Heegsma throwing the first punch, Ms. Yardley had not threatened her in any way, or touched her.

[52] Ms. Heegsma testified that she threw the first punch because Ms. Yardley was in her face. Ms. Yardley was too close to her and she decided to swing before Ms. Yardley did. Ms. Heegsma admitted that she also punched Ms. Yardley to prove to Mr. Murray that she was on his side and was not lying to him.

[53] I find as a fact that immediately after Ms. Yardley punched Ms. Heegsma, Mr. Murray grabbed Ms. Heegsma and moved her out of the way. Ms. Heegsma stepped out the front door of the residence at that point, and Mr. Murray delivered three to four blows which caused the bodily harm, including the two broken front teeth and the laceration to the left eyebrow.

[54] I reject Mr. Murray's version of how the assault took place. I do accept his evidence to the extent that he admits that he remained aggressive and angry and was eager to try to get at Mr. Appleby to beat him up. However, he was unable to do so as Ms. Yardley was in his way in the doorway.

Has the Crown Proven Beyond a Reasonable Doubt That Ms. Heegsma is Guilty of Assault Causing Bodily Harm as a Principal, Co-Principal, or Party to the Offence?

[55] Co-principal liability is established where two or more people "actually commit" an offence and also where two or more persons together form an intention to commit an offence, are present at its commission, and contribute to it, although they do not personally commit all its essential elements. To establish the guilt of two or more persons as co-principals under section 21(1)(a) of the Criminal Code, the Crown need not (but may) prove that they agreed to carry out a common purpose. The Crown must prove common participation, not a common purpose.

[56] On the basis of my findings of fact that Mr. Murray grabbed Ms. Heegsma and removed her from the cove at the front entrance of the residence after she and Ms. Yardley exchanged one punch each, I am left in a reasonable doubt as to Ms. Heegsma's guilt as a co-principal to the Assault Causing Bodily Harm. I find that Mr. Murray and Ms. Heegsma had not together formed the intention to commit Assault Causing Bodily Harm, and that Mr. Murray's actions in grabbing Ms. Heegsma and removing her from the doorway effectively removed any possibility that Ms. Heegsma could contribute to the offence.

[57] Pursuant to section 21(1)(b) of the Criminal Code, an accused may be a party to an offence if he or she does anything for the purpose of aiding any person to commit it. The mens rea of aiding, reflected in the word "purpose" in the section, includes both intent and knowledge. The Crown must prove that the accused intended to assist the principal in the commission of the offence, although the Crown need not prove that the accused desired that the offence be successfully committed. And the Crown must prove that the accused knew that the principal intended to commit the offence, although the Crown need not prove that the accused knew precisely how the principal would commit the offence. On the basis of my findings of fact, the Crown has failed to prove that Ms. Heegsma intended to assist Mr. Murray in the commission of the Assault which caused bodily harm to Ms. Yardley, and has failed to prove that she knew Mr. Murray intended to commit the offence.

[58] A person can be found guilty as a party to an offence if he or she abets any person in committing it, pursuant to Section 21(1)(c) of the Criminal Code. This section requires the Crown to prove that the accused encouraged the principal with acts or words, and intended to encourage the principal. I accept Ms. Heegsma's evidence that she started to yell at Mr. Murray to stop after he threw the first punch at Ms. Yardley. The Crown has failed to prove that she encouraged Mr. Murray to commit the Assault Causing Bodily Harm upon Ms. Yardley.

[59] Pursuant to section 21(2) of the Criminal Code, where two or more persons form and intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. The common intention need not be formed or articulated in advance of the action, but may arise at the instant of the offence being committed, the mutual intention to pursue an unlawful purpose and to assist each other therein being formed at the very moment of carrying it out. I find that, at its highest, Ms. Heegsma and Mr. Murray formed a common intention to confront Ms. Yardley verbally. Ms. Heegsma made it clear that she did not intend to fight Ms. Yardley, although she knew that a fight was possible when the confrontation occurs. When Ms. Heegsma engaged the verbal altercation which escalated into her punching Ms. Yardley, it was not objectively foreseeable that the commission of the offence perpetrated by Mr. Murray, namely the Assault Causing Bodily Harm, would be the probable consequence.

[60] I have considered the statement made by Ms. Heegsma to P.C. Starrs on August 4th, 2017, when she was arrested, to the effect that she committed the assault and that Mr. Murray had nothing to do with it. On first branch of W.D., I accept her testimony that she made the false admission to police as a means of avoiding further assaults by Mr. Murray, and also to protect Mr. Murray. I accept her testimony, and therefore I am compelled to reject her admission to P.C. Starrs that she was the sole perpetrator of the assault upon Ms. Yardley. I note as well that her admission to the officer is not consistent with the other admissible evidence which I accept that implicates Mr. Murray in the commission of the offence.

[61] Earlier in my judgment, I noted that Ms. Heegsma provided her evidence in a balanced manner, making proper concessions in her testimony. An example of this is when Crown counsel suggested to her that she was in some way responsible for the injuries sustained by Ms. Yardley. She agreed with this suggestion and stated that although she wasn't the main cause of the injuries, in the end it all came down to what she chose to do and her relationship with Mr. Murray.

[62] For the above reasons, I would find Ms. Heegsma not guilty of the offence of Assault Causing Bodily Harm.

Is Ms. Heegsma Guilty of Assault Simpliciter or Did She Engage in a Consensual Fist Fight with Ms. Yardley?

[63] For policy reasons, the common law limited the legal effectiveness of consent to a fist fight. The limit persists in section 265 of the Criminal Code, vitiating consent between adults intentionally to apply force causing serious hurt or non-trivial bodily to each other in the course of a fist fight or brawl.

[64] Although Ms. Yardley testified that in her mind she and Ms. Heegsma engaged in a consensual fist fight, I find that the facts do not constitute a consent in law. There was no agreement in advance between the two women to engage in a fist fight. To the contrary on their own evidence, neither Ms. Heegsma nor Ms. Yardley wanted there to be a fight. Ms. Yardley was awoken out of her sleep and confronted at the front door of her residence. Once Ms. Heegsma punched Ms. Yardley on the jaw, the assault was completed. As the Alberta Court of Appeal stated in R. v. Loonskin, "[w]here …one person attacks and another defends, and even in many cases where a challenge is met by a defence, it is not realistic to speak of a consensual fight". I am satisfied that the Crown has disproven self-defence beyond a reasonable doubt. Although Ms. Yardley was in Ms. Heegsma's face, Ms. Heegsma acted out of proportion to any perceived threat.

[65] On the findings of fact I have made, I find Ms. Heegsma guilty of the offence of Assault simpliciter.

Has the Crown Proven Beyond a Reasonable Doubt That Mr. Murray is Guilty of Assault Causing Bodily Harm as a Principal, Co-Principal, or Party to the Offence?

[66] Based upon the findings of fact I have made above, Mr. Murray is found guilty of Assault Causing Bodily Harm as a principal to the offence.

[67] Counsel for Mr. Murray cross-examined Ms. Yardley on a statement she originally provided to police at the hospital in the early morning hours of August 2nd, 2017. In that statement, Ms. Yardley stated that both Ms. Heegsma and Mr. Murray came at her full force and they punched her multiple times in the face knocking out two front teeth.

[68] Ms. Yardley acknowledged making this statement to police but claimed that it should have stated that "he" (Mr. Murray) punched her multiple times in the face, knocking out her teeth. Ms. Yardley did not provide any statement which in any way exculpated Mr. Murray from the assault which caused her injuries. Furthermore, I have found that Ms. Heegsma gave credible evidence with respect to how Mr. Murray perpetrated the assault upon Ms. Yardley.

[69] Mr. Murray is also found guilty of the four charges of Breach of Probation for failing to keep the peace and be of good behaviour on each of the four probation orders.

Self-Instruction on Character Evidence

[70] During the course of the trial, each accused led evidence to suggest that the co-accused, was by virtue of their general character, the more likely perpetrator of the assault that caused bodily harm to Ms. Yardley. Each accused is entitled to adduce such propensity evidence in relation to his or her co-accused. Where an accused does call evidence suggesting that the co-accused is the kind of person to commit the offence, that inference can be relied on by the accused in defending himself or herself, but not by the Crown in proving the guilt of the co-accused. Nor can the evidence of the co-accused's character be used by the Crown on the issue of the co-accused's credibility as a witness.

[71] Ms. Heegsma testified that during the course of their relationship, Mr. Murray was domestically abusive, including physically abusive. Ms. Heegsma gave evidence of specific instances of physical abuse she suffered at the hands of Mr. Murray. I accept Ms. Heegsma's evidence that she was in an abusive relationship with Murray. There was also other evidence regarding Mr. Murray's involvement in jail fights and assault convictions for domestic violence.

[72] I note that my acceptance of the evidence of Mr. Murray's propensity for violence is considered solely for the purpose of bolstering my finding that Ms. Heegsma is not guilty of Assault Causing Bodily Harm, and not to support Mr. Murray's conviction for Assault Causing Bodily Harm.

[73] Mr. Murray also testified that his relationship with Ms. Heegsma involved him beating her up, and her beating him up. He testified that, on one occasion in July 2017, Ms. Heegsma knocked two of his teeth out when she sucker punched him. He also claimed that he had witnessed Ms. Heegsma assault other males. I permitted Ms. Heegsma to be recalled to respond to Mr. Murray's allegation that she was domestically abusive toward him, including by sucker punching him on one occasion, knocking two of his teeth out. Ms. Heegsma denied that this assault occurred or any other assault against other males, except one time that she slapped Mr. Murray in the face. I reject Mr. Murray's evidence that Ms. Heegsma was domestically abusive toward him, other than the one slap she admitted to. She again gave her evidence in a balanced manner by acknowledging that on one occasion she had punched her own mother in the face.

[74] I placed limited weight on Mr. Murray's three criminal convictions for Theft Under $5,000.00, which are crimes of dishonesty, although they do bolster my rejection of his evidence.

CONCLUSION

Ms. Heegsma is found guilty of Assault simpliciter, and Mr. Murray is found guilty of Assault Causing Bodily Harm and the four counts of Breach of Probation.

Released: June 14, 2018

Signed: Justice J.P.P. Fiorucci