SUPERIOR COURT OF JUSTICE

Court File No. 10-11

HER MAJESTY THE QUEEN

V.

H.(S.)

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE T. CAREY

On March 11, 2013, at ST. THOMAS, Ontario

By court order made under s.486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

APPEARANCES:

E. Maguire

R. Braiden

Counsel for the Crown

Counsel for the Accused

MONDAY, MARCH 11, 2013

R E A S O N S F O R J U D G M E N T

CAREY, J. (Orally):

S.H. is charged with five counts arising from the 18th day of June 2010, at the Municipality of Central Elgin. The first count is sexual assault causing bodily harm to J.S. Count 2 is the same charge in connection with P.M. Count 3 is a count of choking while committing the offence of sexual assault on P.M. Count 4 is a count of sexual assault causing bodily harm on P.M. and count 5 is a count of break and enter at the residence, which is P.M.’s residence.

I repeat that there is a ban on publication of the names of the complainants in this case.

Mr. S.H. elected trial by judge alone in this matter. He did not dispute that his actions, if voluntary, would support the charges as made out in the indictment as amended.

The two victims of these attacks were not required to give evidence and their videotaped statements went in on consent as exhibits. Exhibit 147 is the DVD statement of J.S. and 148 is the DVD statement of P.M. The court was provided with transcripts of these statements, which I have referred to in my judgment. Exhibit 147A is the transcript of J.S.'s statement, 148A is the transcript of P.M.’s statement.

These events occurred on a hot June day in 2010. S.H. and his wife of over 40 years lived next door to P.M. and across the street from J.S. The four are long-time friends and S.H. does chores, looks after the grass cutting and does snow clearing for both ladies who are widows. He had also been helping his daughter, E., known as B., with her two boys, especially more recently while she recovered from cancer surgery. She lives on 10 acres on the outskirts of town.

On this day, a Friday, S.H. cut B.’s lawn and then his own and P.M.’s. In between, he resealed his driveway. He was observed to be sweating profusely by his wife.

I will be referring to the statements of J.S. and P.M. as well as the accused. I will make reference here to the synopsis provided by the police. While it is an overview, it should not be taken as all of the facts. It is an overview of the allegations. It includes the following:

Police were dispatched around 10:50 at night to the address where J.S. advised that she had S.H. in her home after being at his house across the street earlier in the evening. Police indicated that she said she was accompanied by him as it was not uncommon for him to walk her back to her residence. He later returned with more beer for them to consume. She welcomed him into her residence and the synopsis says they consumed beer and H. (S.) had demanded sex from J.S. and wanted to see her breasts. She told him she would not have sex with him and he began to assault her by striking her on and about her face. During the altercation he tore off her clothing and forced her into the bedroom where he forced her onto the bed and continued to demand sex. J.S. struggled with H.(S.) and suddenly he left the residence. The synopsis indicates that J.S. had to receive sutures for a laceration to the left side of her chin and that she had swelling on the left side of her face and jaw.

While the officers were at the J.S. residence they received a second report of the assault at P.M.’s home. She reported that she had been asleep when she awoke and found S.H. had entered her residence. He was on top of her and said he was "going to fuck her". He ripped off her pajama top, forced her to remove the bottoms. She refused to have sex and he began to assault her by choking and striking her. He removed his pants and told P.M. that he wanted her to "suck his cock". She refused and she asked to go to the washroom to get away from him. She was dragged to the washroom and while using the toilet S.H. began to punch her in the face and torso. He became impatient and dragged her back from the washroom to the bedroom where he continued to assault her. At one point during the altercation, when P.M. asked to talk to him, S.H. said that it was too late, he had already been to J.S.'s house. She described him trying to choke her and he threatened that he was "going to kill you tonight". She pleaded with him to leave and during the assault he touched her around her vaginal area. He did not penetrate her with his penis. He assaulted her about the face, torso and arms and struck her in the stomach a number of times, he pulled her by the hair and, in the police report, it concluded as suddenly as the assault began, it ended and H.(S.) left the bedroom. (End of synopsis summary)

When police attended, S.H. was located in the basement of the P.M. residence. He was lying on the floor, he wasn't covered by anything, he had what appeared to be cat litter upon him. When the police arrested him he was found to have keys to P.M.’s home on his person.

In the statements that were played, J.S., who was 82 at the time of these assaults, indicated that she had gone over to see Mr. and Mrs. H.(S.)after cutting her grass and was there socializing. She describes a pleasant evening after which S.H. walked her home, as he usually does. After he had left he returned a while later with a couple of beers, one for each of them, and they were talking, which he called a "little chitchat". At one point she says that he had been talking about his fishing lot up north and his hoping to win the trophy that he had won for fishing the year before. As this conversation was concluding and S.H. stood up, the attacks that were described earlier, began. It is clear from her statement that J.S. was completely taken aback by the attacks. She had her clothes stripped off and she was punched and received with the injuries that I have described. She indicates that the attack ended suddenly and as he left S.H. said, "Don't forget to lock the door."

J.S., in her statement, said that something made S.H. get up and off the bed and run out. She did not see anything. She had known him for 25 years and never seen this violence in him or even seen him angry.

He, apparently, went from her house to his next-door neighbour's, P.M.’s. The sexual assault in her bedroom occurred after he likely let himself in with a key that he had for the purpose of caring for her cats.

S.H. gave both a video statement and he gave evidence in this case. In his statement, which was taken at 6:18 in the morning after the assaults, he is heard to have asked, "What did I do to J.(S.)?" And, when told of the charges of choking, he said, "Did I choke her?" He says, "I wish I could remember most of this." He did indicate he was "drinking way too much beer". He said, "P.(M.) wouldn't lie." He seems, on the video statement, to be trying to remember. He acknowledges that he has injuries to his hand, a swollen knuckle, but says he has no idea, no clue as to how he got that injury. He describes J.(S.)as "just a dear lady". "I just don't know what happened," he says. He says he always walks J.(S.)home. In trying to recall his arrest he indicates that he thought he was arrested by a female officer. He indicates he has no memory of going to P.(M.)’s.

The police indicated that, at the time of his arrest, there was an odour of alcohol about S.H. He was not described as drunk or intoxicated. His speech was described as clear and he was described as walking without difficulty. Other than the odour of alcohol there was also redness in his eyes noted by arresting officer, Constable Belanger. His face was noted as flushed and swollen. The officer also said that the accused indicated that he was sorry for what he had done. It was indicated that he was repeating himself in both being sorry and in his conversation with the police officer.

S.H. gave evidence. He talked about his day from the beginning and that it began with a visit to Tim Hortons, which was typical for him. He went there in the early morning. He indicates that he was sealing his driveway and that he lay down for a while because his neck was bothering him. He recalls the day as being very hot outside and he guzzled some water. He had a Lakeport beer before he cut P.(M.)’s lawn and later on he had two beers with P.(M.). S.H. indicated that he was retired from the PUC and married with three children, two grandchildren and had been married since 1969, and lived in the same house since 1977.

He gave a medical history. He had part of his thyroid removed in 1974, and he was on thyroid medication and its effects caused redness to his eyes. He described problems with vertigo from January 2010, and that the vertigo made him feel nauseous and that he lost his balance with certain actions. He also complained of sweating problems. He said he did not talk to the family doctor, Dr. Telford. He did not want to take time from helping his daughter.

He said that he did have a problem with vertigo - it prevented him from working on his roof. He also says that prior to these events he felt numbness in his left arm, which he dismissed and related to work that he was doing at the time he felt the numbness.

After he had cut P.(M.)’s lawn, P.(M.) was over at his house and J.(S.)joined them, he indicated there was a barbeque with hamburgers and hotdogs. At some point, after dinner, his wife and his sister-in-law went out shopping. His evidence is he does not remember exactly what he drank, but he did drink more beer at that point. When he gave his evidence he said he did not remember after walking J.(S.) home. He does not remember the attacks or being in P.(M.)’s residence at all. He remembers some of the interview. In his evidence he recounted the various doctors that he saw. He denied that his wife complained to him of his drinking and he denied making an advance on P.(M.), as she said in her statement: that in all the years she had known him he only once made an advance. He had tried to kiss her at a time when her husband was quite ill, prior to his death, she says. In his evidence, he said, the event that she described took place on an evening when she was upset at her husband's illness and was on medication and drinking as well.

POSITION OF PARTIES

The defence has conceded the serious and violent facts of the attacks here and argue that this is a rare case of non-insane automatism that serves to negate the mental or voluntariness element of the allegations. And, for this position, S.H. relies largely on the evidence of Dr. John Spence, a neurologist, clinical pharmacologist and internist. The groundwork for Dr. Spence's evidence comes primarily from S.H. and observations from family members as to certain pre-incident behaviour.

The Crown's position is that the evidence supporting Dr. Spence's position is not reliable and further, that Dr. Spence as a neurologist does not meet the criteria for the expertise needed in automatism cases, as set out by the Supreme Court of Canada in R. v. Stone 1999 688 (SCC), [1999], 2 S.C.R. 290. The Crown relies on the evidence of the forensic psychologist, Dr. Carter, in part, to undermine the credibility of the defendant and, in part, to put forward an alternative to the defence position. The Crown also says that evidence of alcohol consumption can be used to find that the defendant's inhibitions were lowered, but that he voluntarily committed these offences. In the alternative, the Crown asserts that if the facts supported that the defendant was in an automatistic state, which they resist, I should find that S.H. was suffering from a disease of the mind and should be found not criminally responsible.

ANALYSIS

It is necessary to make credibility findings here, before I get to the expert evidence of Dr. Spence, in order for that evidence to have a foundation. The Crown says that the accused was not forthright and gave conflicting statements and that he previously made an advance on P.(M.).

[...continued exactly as in the original judgment through the conclusion...]

In conclusion, all of the evidence in this case leaves me in a state of reasonable doubt about the voluntariness of S.H.'s actions. I have concluded that he was most likely in an automatistic state at the time and that state was not caused by a disease of the mind and is, therefore, non-insane automatism. The verdict, therefore, S.H., if you would stand up, the verdict is not guilty and you are acquitted.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

EVIDENCE ACT

I, Jeannie Tracey, certify that this document is a true and accurate transcript of the recording of

R. v. H.(S.) in the Superior Court of Justice Court held at 1 Silver Street, St. Thomas, Ontario taken from Recording No. 0711_1-CR1_20130311_103326__10_CAREYT which has been certified in Form 1.

This certification does not apply to those portions of the transcript (Reasons for Judgment) which have been judicially edited.

April 18, 2013 Original signed by Jeannie Tracey