His Majesty the Queen v. Sammy Abiy Getachew, 2013 ONSC 2107

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 3-618/12
DATE: 20130411

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

SAMMY ABIY GETACHEW

Soula Olver, for the Crown

Daniel Dagago, for the accused

HEARD: March 4-8, 11 and April 2, 2013

K.L. Campbell J.:

I

Overview

1The accused, Sammy Getachew, is charged with aggravated assault, assault with a weapon, and administering a noxious substance. All of the offences are alleged to have been committed in Scarborough on March 18, 2012 against the complainant, Mekedlowete Sheferaw, the accused’s former girlfriend.

2The complainant and the accused are both originally from Ethiopia. They met when the accused was trying to find work in Canada, and the complainant tried to help him in that job search. Shortly thereafter, they began to live together in the complainant’s small bachelor apartment on the 13th floor of an apartment building on Lawrence Avenue East in Scarborough. The complainant is a small woman, 30 years of age. The accused is large man, 38 years of age. They had been living together for approximately four months at the time of the alleged offences.

3On March 20, 2012, two days after the alleged offences, the complainant was taken by ambulance, at the insistence of a friend, to the Scarborough General Hospital, complaining of severe headache pain. At first she indicated that he had fallen in her bathtub. A couple of days later, she indicated that she had been beaten by her boyfriend. She also indicated that, during an argument, her boyfriend had struck over the head with a wooden cutting board. She explained that she had been physically abused by her boyfriend on earlier occasions. She also mentioned that, on the most recent occasion, she had taken sips of bleach.

4The CT Scan showed that the complainant had suffered a subdural hematoma extending over the tentorium and over the left parietal and temporal regions of the brain. There was also an associated contusion in the left parieto-occipital region. The complainant had a slow recovery, suffered significant problems with ongoing pain, and remained in the hospital for some 10 days. Even now she continues to see a specialist in connection with this brain injury.

5Photographs that were taken when the complainant was in the hospital revealed that she had also suffered significant injuries to various other parts of her body. Some of these injuries were fresh, while others appeared to be older. Both of the complainant’s legs, from her shins up past her knees, displayed many serious bruises, abrasions and wounds of varying sizes. Many of them, identified by the complainant, were from assaults by the accused on March 18, 2012. She also had bruises to her upper arms, although she was not sure when she suffered those injuries. She also had injuries to her neck, chin and the inside of lips. She also had blood in her left eye, and her right cheek was swollen. According to the complainant, all of these injuries were suffered at the hands of the accused, either on March 18, 2012, or on earlier occasions.

6With the consent of the complainant and acting upon a search warrant, the police entered and searched the apartment where the complainant suffered these injuries. During the course of this search, the police found: (1) half of a broken wooden cutting board and some empty beer cans on the apartment balcony; (2) a blood stained bath-mat in the bathroom; (3) a broken towel rack in the bathroom; (4) blood spatters on the walls and on certain items in the bathroom; (5) an empty plastic cup on the floor by the toilet in the bathroom; and (6) a large 2.84 litre plastic container of bleach in the kitchen cupboard under the sink.

7The main issues in this case are whether the Crown has established beyond a reasonable doubt that the complainant suffered her physical injuries at the hands of the accused, and that the accused caused the complainant to ingest the sips of bleach she consumed.

8Relying upon the testimony of the complainant and the corroborative results of the police investigation, the Crown contends that the accused, after becoming enraged with alcohol-fueled jealousy over his suspicions that the complainant was having an affair with a younger man, began physically abusing the complainant. This was not the first time that the accused had violently assaulted the complainant. According to the Crown, during this quarrel, the accused went to the kitchen, retrieved a wooden cutting board, and broke it over the complainant’s head, causing the serious injuries to her brain. The accused then kicked her numerous times in her legs while still wearing his shoes. Later, as the verbal and physical abuse continued, and the complainant became increasingly despondent, the accused ordered her to drink bleach from a cup in the bathroom. Eventually, when the complainant passed out, the accused panicked and then took steps to revive her. Later, he moved out of her apartment, but only after cleaning up much of the evidence of his night of violence against her.

9According to the accused, the injuries suffered by the complainant were entirely self-inflicted. The accused testified that, on the evening of March 18, 2012, the complainant confessed to him that she had slept with another man earlier that day. She expressed regret and sought his forgiveness. He was upset by this news, but he was not angry. Instead, he began to pack his clothes with the intention of leaving the complainant. She pleaded with him to stay. The accused denied engaging in any acts of violence against the complainant, on the night of March 18, 2012 or on any earlier occasion. However, he testified that, at one point during the evening, he heard the complainant fall down in the bathroom. When he went to see what had happened, he saw the complainant lying face down on the floor, on the left side of her face, and bleeding from an injury to her head. The accused tried to help her. He put cold water on her and put his hand in her mouth to make her vomit. Eventually, he put her to bed, and then cleaned up the mess. A couple of days later, after making sure the complainant was okay, the accused moved out of her apartment.

10The accused contends that the complainant suffered her head injury in her fall in the bathroom, but inflicted her other injuries herself, and has vindictively invented her story of physical abuse to get revenge on the accused for leaving her when she wanted to continue their relationship.

(Complete decision text continues exactly as in the source, preserving all paragraphs, headings, and wording.)

Kenneth L. Campbell J.

Footnotes

1. 1In cases where an accused is charged with murder, the qualified defence of provocation, outlined in s. 232(1) of the Code, which operates to reduce murder to manslaughter, may be available to an accused in circumstances where the news of such infidelity might potentially amount to a “wrongful act or insult.” See: R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350.