ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. King, 2015 ONSC 996
COURT FILE NO.: CR-13-0087
DATE: 2015-02-13
B E T W E E N:
Her Majesty The Queen
Gordon Fillmore, for the Crown
- and -
Samuel James King and Jeff Ryan King,
Accused
Kevin Matthews, for the Accused Samuel James King
Brennan Sacevich, for the Accused Jeff Ryan King
HEARD: October 21 and 22, and December 15 and 16, 2014 at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Reasons For Judgment
[1] This matter involves events that occurred in the early morning hours of New Year’s Day, 2013, at Gull Bay First Nation. Jeff King (Jeff) and Sam King (Sam) are accused of committing an aggravated assault on Marvin Bouchard (Marvin) during that time.
[2] Sam is also accused of three other offences. Following the close of the case for the defence, the Crown invited me to acquit Sam on two of these charges. Accordingly, an acquittal shall be entered in respect of Counts 2 and 4 of the indictment before the Court.
Background
[3] Certain facts are not in dispute in this matter. Gull Bay First Nation is located about 200 kilometers north of Thunder Bay. It has approximately 300 permanent residents. The residents of the First Nation are generally well known to each other. There are two main streets on the First Nation. Many residents were enjoying New Years Eve festivities with family and friends in the early morning of January 1, 2013.
The Main Event
[4] A bad social visit by Marvin at the home of Gwendolyn Joy King began a string of unfortunate events in this case. After midnight, Marvin got in to an argument with Brandy King, a female relative of the homeowner. He spat in her face. A number of male members of the King family then got into a physical altercation with Marvin, ejecting him from the house.
[5] The fight tumbled out on to the wheelchair ramp of the King home. The main combatants were Marvin and Peter King. Also involved was Ramon Mesa-King and Sam King. Marvin ended up bleeding from his head from this fight.
[6] It is disputed as to whether or not Marvin ended this altercation by pulling a knife. However, it was not seriously disputed Marvin left the premises with a threat to return as “this was not over”.
[7] At this time, one police officer, Constable Edmund King, was on duty at Gull Bay. He was patrolling the First Nation in a Chevy Tahoe. It was below zero that evening and the ground in the area was snow covered.
[8] Constable King testified that as he had stopped the Tahoe to talk to some Gull Bay residents, he saw Marvin pass his vehicle on foot at around 3:16 a.m. Constable King noticed blood on Marvin’s face. This caused Constable King to pursue Marvin. However, Marvin turned the corner and disappeared. Constable King’s further efforts to locate Marvin at that time were unsuccessful.
[9] Constable King later did come upon Marvin at 3:30 a.m. It is the circumstances of this encounter that forms the basis of the charges against Jeff and Sam. The main event occurred in the driveway of Gwen King’s home. I will refer to this event as the “Driveway Confrontation”. The defence conceded that Marvin Bouchard suffered a depressed compound fracture of the skull, internal bleeding in his head and wounds to his shoulder. It is agreed these injuries are consistent with an aggravated assault against Marvin in the early morning of January 1, 2013.
The Driveway Confrontation
[10] Five witnesses testified as to the Driveway Confrontation. I will discuss their evidence in the order they testified.
Constable King
[11] Constable King testified first for the Crown. He made notes of the events of that evening. The notes were made about 4 to 6 hours after the incident. He had an independent recollection of events and did not refer to his notes until well into his evidence in chief.
[12] According to Constable King, while trying to locate Marvin, he noticed “a big bunch of commotion in one of the residences on Main Street”. It was the residence of Gwendolyn King. Constable King estimated he arrived there at about 3:30 a.m.
[13] As Constable King came on scene, he observed “quite a few people on the outskirts of the driveway with all kinds of clubs in their hands”. In cross-examination, he agreed that there may have been approximately 30 to 40 people. Constable King got out of the Tahoe and then testified:
Well what I actually did I actually started confrontin’ some of the people and grabbin whatever they had in their hands outta their hands. I was kinda throwin’ around to the side and at that point in time there was, there was crowd of about I’m gonna say 10 people when I first got outta the vehicle but as I went further down the driveway there was more and more people as I started walkin’ down the driveway there was more and more people arguing and pushing and shoving so I was trying to break ‘em up. As I got through the crowd I notice a person laying on the ground.
[14] Constable King described that he had to fight his way through the crowd.
[15] As Constable King approached the person on the ground, he testified he witnessed Jeff hit the person two to three times in the head with a small axe. Later in his testimony, Constable King described the small axe as a hatchet. Also, in cross-examination Constable King said he saw Jeff hit the person four to five times and perhaps it could have been more. When confronted with the inconsistency in saying two to three versus four to five, he said these observations of the number of strikes were “approximate”.
[16] Constable King pushed Jeff to the ground and Jeff dropped the hatchet. Constable King also slipped and fell. As Constable King was on the ground, he testified that he saw Sam hit the person on the head at least twice with a shovel.
[17] According to Constable King, he was within a foot of the person on the ground when he saw Sam strike him on the head with the steel spade portion of a shovel.
[18] At this point, Constable King testified that Arthur Poyle was in the vicinity yelling at him that “Marvin” was badly injured and needed an ambulance. Constable King then went to the person on the ground and determined it was Marvin Bouchard. He felt his head and testified “his head felt like a mess. All I could see was blood all over the place.”
[19] Jeff and Sam had dropped what was in their hands and retreated inside Gwen’s house.
[20] Constable King then went back to the Tahoe to radio for an ambulance.
[21] After Constable King made that radio call, he got out of the Tahoe this time with his gun drawn, as, according to him, the people in the driveway had begun fighting again. As Constable King approached Marvin, Brandy King came out of Gwendolyn King’s house shouting that her brother had been stabbed.
[22] Accordingly, Constable King then entered the King house. He found Peter King sitting on a couch and testified that “actually he was cut pretty good. His stomach, his intestines were hanging out.”
[23] As Constable King went out of the King house to again call for a further ambulance, he noticed the Tahoe was gone. He had left it running and as he learned later, Arthur Poyle had driven it off. So Constable King returned to Gwendolyn’s house to see if she had a land line so he could call for help. Unfortunately, she did not have a phone. There is also no cell service in Gull Bay.
[24] As Constable King again came out of Gwendolyn’s house he noticed that Marvin too was gone.
[25] Fortunately, Mr. Poyle decided to return the Tahoe at that point and Constable King called for a second ambulance.
[26] Shortly thereafter, members of the Armstrong O.P.P. arrived at Gull Bay. Accompanied by Constable Randy Minella, Constable King located Marvin at the residence of Amanda Kwissiessen. He was lying on the floor, conscious, with his shirt off. Constable King observed head damage and two stab wounds in Marvin’s back. In cross-examination, Constable King says he was “jumped” by Arthur Poyle upon entering Ms. Kwississen’s residence. His notebook was grabbed by Mr. Poyle and flung across the room. It was quickly recovered by Constable King and he continued with his investigation.
[27] Constable King’s evidence was confusing and unclear as to the number of times that evening he went back and forth between Gwendolyn King’s house to check on Peter King, and what he had to do to attend to Marvin at Ms. Kwississen’s place. The ambulances had difficulty locating either residence as there are no street numbers on the residences in Gull Bay. Constable King was required to assist EMS personnel in locating both injured persons, Marvin and Peter King.
[28] A good deal of the cross-examination of Constable King focused on the notes he took that evening. The notes were made an exhibit at the trial for the purposes of allowing the Court to follow the line of questioning. There were some inconsistencies in the notes when contrasted with Constable King’s testimony. The most significant one, in my view, was Constable King’s note that indicated Jeff was carrying a shovel and Sam was carrying an axe. Also, the notes do not indicate that Sam actually hit Marvin. The notes indicate Jeff first hit Marvin 4 or 5 times and then, after he had been pushed to the ground, Jeff hit Marvin with a shovel in the head.
[29] Constable King did not arrest Sam or Jeff that evening. Constable King did not seize either the shovel or the hatchet he testified he saw in the hands of Jeff and Sam.
Adora-Lee Nawagesic
[30] The next witness who testified for the Crown was Adora-Lee Nawagesic.
[31] Adora-Lee is Marvin’s cousin.
[32] She confirmed the initial confrontation between Marvin and Brandy King. She watched as members of the King household, as well as her then boyfriend, Ramon Meza-King, fought with Marvin and pushed him out of Gwendolyn King’s house. To her, the main combatants were Ramon, Sam, and Peter King on the one side, and Marvin on the other. Marvin was bleeding as the result of the fight. She testified this incident ended with Marvin producing a flick knife and saying “this isn’t over”. Marvin then left.
[33] Adora-Lee then went back inside Gwendolyn’s house. Despite her observation that things “calmed down”, she testified that Jeff “came back in with axes and said ‘this is war’.” She could not recall how many axes Jeff was carrying or how he was carrying them. She testified she took Jeff’s words with “a grain of salt.”
[34] Soon after, Brandy King announced to those in the house that, “they were coming.” Adora-Lee decided at that point she wanted no part of this and tried to leave with her brother, Paul. She went outside the Gwendolyn King house with Paul and in to the driveway, where she observed the Driveway Confrontation.
[35] According to Adora-Lee, Marvin together with three other men came down the driveway. She testified that at least one of them had an axe in his hand.
[36] Facing them in the driveway was Ramon, Peter King, Sam, and Jeff. A person not specifically identified by Adora-Lee tried to hand Ramon an axe. He refused to take it. She testified that Peter King had a pick axe in his hand. She could not say if she saw either Jeff or Sam with anything in their hands.
[37] The first violent act witnessed by Adora-Lee was Peter King running up to Marvin and hitting him in the head with a pick axe. She could see that because, according to her, at that exact moment a police vehicle arrived and shone its lights on the driveway and toward the men gathered there.
[38] At that point, Adora-Lee and her brother Paul turned and ran from the scene. They went behind the house, jumped a fence, and entered a baseball field. As she was running, she testified Jeff appeared in the baseball field and called out to her brother. In cross-examination, she testified this happened about 30 seconds to two minutes after she saw Peter strike Marvin. She and Paul then went to speak to Jeff. Jeff asked Paul to “take the pick axe”. Paul declined to do so. Ramon then joined them in the field and the party of three people, Adora-Lee, Paul, and Ramon, went to another residence.
Marvin Bouchard
[39] Marvin was the final Crown witness. The Crown indicated he was called as a concession to the defence in return for their admission of the nature of Marvin’s personal injuries. I did not find his evidence particularly helpful for a variety of reasons. While he did confirm he spat in Brandy King’s face, he admitted he did not recall many details of what occurred thereafter. This is understandable given the injuries he sustained that evening. He could not explain why he was returning to the King house after spitting in Brandy’s face. Also, he indicated that during the first altercation with Ramon, Peter, and Sam, immediately following the spitting, Constable King showed up. Further, Marvin testified he recalls being on the ground with Constable King’s boot on his throat. This evidence appeared to come as a surprise to the Crown. Also, no other witness testified that Constable King attended this first incident.
[40] Marvin testified how he returned to Gwendolyn King’s home with two of his relatives. He testified there was a fight but he could not provide details of how many people were there. Significantly, Marvin could not identify who struck him on the head that evening. He denied pulling out a knife before leaving Gwendolyn’s home the first time.
Ramon Meza-King
[41] Two witnesses were called for the defence.
[42] Ramon Meza-King was 22 years old on January 1, 2013. At the time, he was Adora-Lee Nawagesic’s boyfriend. He is a first cousin to Sam and a second cousin to Jeff.
[43] Ramon was at Gwendolyn King’s house for New Years. He witnessed Marvin spit in Brandy’s face. Ramon was involved in the ensuing struggle to get Marvin out of the house. He claims to have witnessed Marvin pulling out a knife at the end of the fight with Peter and saying words to the effect that “this is not over” and “I am coming back”. Ramon believed Marvin would return.
[44] In the intervening period, Ramon did not hear Jeff say any words to the effect “this is war.”
[45] According to Ramon, Marvin did come back with three other men: Arthur Poyle; Eddy Poyle; and Montgomery Poyle.
[46] Ramon went with Sam, Jeff, and Peter King to meet these four in the driveway.
[47] Ramon was focused on protecting or staying with Sam. According to Ramon, Sam and Marvin actually passed each other on the driveway before any blows were struck. Marvin was heading toward Peter when Sam confronted Arthur Poyle.
[48] Marvin was behind Ramon when Constable King pulled in to the driveway and shone the lights from the police Tahoe on the eight men who were standing in the driveway. Constable King exited his vehicle with his gun drawn and yelled “Freeze”.
[49] Ramon was standing beside Sam at that point. He testified that immediately upon Constable King’s arrival, Arthur punched Sam in the face. All three men went to the ground. Then Ramon saw Montgomery advancing with an axe in his hand. It was the first time in the confrontation he noticed a weapon. Montgomery dropped the axe but said “I have a gun”.
[50] Ramon saw Marvin on the ground but did not testify as to how Marvin ended up in that position. He did not give any testimony one way or the other as to who struck Marvin during the Driveway Confrontation.
[51] Ramon turned and began walking toward the house. He noticed Peter going up the ramp holding his stomach. Ramon then found himself at the back of Gwendolyn’s house on the baseball field with Adora-Lee and her brother Peter.
[52] He did not have any further direct observations that evening that had any bearing on the matters at issue.
Arthur Poyle
[53] Arthur Poyle also testified for the defence. Arthur is Marvin’s cousin but they are very close. On a number of occasions during his testimony he referred to Marvin as his brother.
[54] He confirmed that Marvin had showed up to his house bleeding and complaining to have been in an altercation at Gwendolyn King’s home. According to Arthur, Marvin did say that Constable King had been at Gwendolyn’s house during the first fight. In any event, Arthur decided to go back to Gwendolyn’s place with Marvin.
[55] Arthur testified that neither he nor Marvin were carrying any weapons. When they arrived, they were joined by Montgomery and Eddy Poyle. Arthur did not testify as to how they exactly arrived on scene, but nevertheless he confirmed they were there.
[56] Arthur seemed quite upset during the course of his testimony. He became distraught and agitated. He testified he was involved in the Driveway Confrontation. He confirmed that he was directly engaged with Sam and that “Sam was in my face.”
[57] Arthur testified he witnessed Marvin being struck on the head. He could not identify who actually hit Marvin. He stated a number of times “it happened so fast”. Arthur did only identify one blow to Marvin and claimed it happened while Constable King was present. In fact, according to Arthur, Marvin was struck at the very same time as Constable King was pulling up in his Tahoe and was out of the vehicle, such that he too could see Marvin being struck.
[58] Arthur went to Marvin while he was on the ground. He confirmed he drove off in Constable King’s police vehicle as he was frustrated Constable King was not doing anything to assist Marvin. According to Arthur, he walked Marvin back to another location after the Driveway Confrontation was over.
[59] Arthur confirmed that he got in to a further physical altercation with Constable King later as Constable King was attempting to question Marvin. He felt it was unnecessary for Constable King to be questioning Marvin and should instead have been focussing on assisting him with his injuries.
[60] During cross-examination, Arthur testified that Constable King had suggested to him that he would not do anything about the fact that Arthur had stolen the police vehicle, if Arthur did not say anything about Constable King putting his boot on Marvin’s throat. This was a confusing portion of Arthur’s testimony. Arthur was in fact charged for some offence related to the cruiser but details were not placed before the Court.
[61] Arthur testified that he did not see Jeff in the driveway during the driveway confrontation. However, he testified that Sam had an axe handle in his hand when the two men confronted each other in the driveway.
Analysis
[62] I will deal first with the charge against Sam for failing to keep the peace and be of good behaviour.
[63] In my view, there was a public disturbance in the driveway at Gwendolyn Kings’ home around 3:30 in the morning on January 1, 2013. Sam King was involved in this disturbance. Also, he was involved in the melee that removed Marvin from Gwendolyn’s house earlier that evening. I find the Crown has proved beyond a reasonable doubt Sam King failed to keep the peace and be of good behaviour on January 1, 2013. There will be a conviction registered against Sam King with respect to count 3 of the indictment.
The Aggravated Assault Charges against Jeff and Sam
[64] The only direct evidence of Sam or Jeff striking Marvin came from Constable King. Adora-Lee saw Peter King, and only Peter King strike Marvin. Adora-Lee saw one strike on Marvin’s head. Marvin does not remember who hit him. Ramon says Sam did not strike Marvin as he was engaged in a fight with Arthur. Arthur says Marvin was struck once but he can’t say by whom.
[65] The defence argues that the testimony of all witnesses taken together leads to a reasonable doubt that either Sam or Jeff struck Marvin that evening. I agree. I agree for the following reasons.
[66] In my view, Constable King was confused and mistaken about what I have referred to as the Driveway Confrontation, relating to the main charges before this court, the actual striking of Marvin by either Sam or Jeff. Clearly Constable King was confronted with a fairly complex and serious situation that evening. Two members of the community were badly injured from a fight. He actually came upon the fight while it was in progress. He had his vehicle stolen from him that evening. There was a long delay in paramedics responding to the scene. He was confronted and assaulted by angry relatives of Marvin. His testimony about what Sam and Jeff had in their hands, a shovel and an axe respectively, is not consistent with his notes made contemporaneous to the event regarding that issue. While his notes are not evidence, they do assist me in assessing the reliability of his testimony before the Court.
[67] Adora-Lee, Ramon, and Arthur all testified as to the actual number of persons present in the driveway during the driveway confrontation. Crown and defence agree Adora-Lee and Ramon gave their evidence in a forthright and direct manner. They were not swayed in cross-examination. I agree with this assessment of the evidence of Adora-Lee and Ramon.
[68] In my view, Arthur too gave his evidence in a credible manner. However, Arthur was traumatized by what he witnessed that evening. But he was clear he could not identify who struck Marvin. And he testified repeatedly the incident happened very quickly. Common sense confirms this testimony.
[69] From the testimony of Adora-Lee, Ramon, and Arthur, it appears 8 to 10 persons at most may have been present during the Driveway Confrontation. This is vastly different than the scene described by Constable King. From his testimony, a crowd was gathered of up to 40 people. Constable King said he had to fight his way through this crowd, grabbing at a multitude of weapons these various people had in their hands to find Marvin on all fours on the driveway. Then Constable King testified he witnessed at least 4 and maybe up to 8 hits on Marvin’s head by solid metal objects, an axe, and a shovel. This was all at very close range.
[70] Constable King did not arrest Jeff and Sam on the spot. Constable King did not seize the weapons he said he saw used. Despite what seems to me to be a significant number of blows to the head, Marvin managed to get up and walk away as Constable King was dealing with other matters.
[71] Constable King did give his evidence in a way that I find to be credible. I don’t believe he was lying about what he thinks he saw that evening. However, I do not find Constable King’s evidence to be reliably accurate as to the issue of who he says he saw struck Marvin that evening. I do that because I find his testimony with regard to certain key facts to be exaggerated.
[72] For example, in my view, Constable King’s account of the crowd is exaggerated when considered in light of the evidence of the other witnesses. Constable King’s evidence as to the number of weapons present in the hands of the participants at the time is also exaggerated in my view. His account of the number of times Marvin was struck was inconsistent, as it varied. It is also incredible to me that any person struck at least four times by metal objects on the head during a fight would be able to get up and walk away, let alone not have to be taken away in a body bag. All of these exaggerations and inconsistencies have negatively impacted on my assessment of the reliability of Constable King’s evidence about whom he saw strike Marvin that evening.
[73] In assessing his evidence, I believe Constable King was influenced not to recount matters accurately or reliably because of the fact that he was both a witness and an investigator. He had not only to consider what he saw, but he was also had to interview others about what they saw. He also was dealing with a multitude of problems that evening. Serious personal injuries to two persons, an assault on himself, and the theft of his vehicle.
[74] For all the reasons recounted in the preceding four paragraphs, I do not find Constable King’s evidence that Marvin was struck by Sam and Jeff to be reliable.
[75] In making this finding, particularly with respect to Sam, I also rely on the evidence of Ramon and Arthur as to where exactly Sam was when Marvin was struck that evening. I accept Ramon’s testimony as confirmed by Arthur’s testimony that Sam was “in his face” to conclude that Sam was not within “arms reach” or even “shovel reach” of Marvin when Marvin was in fact assaulted.
[76] Arthur did not see Jeff on the driveway. Ramon did not testify about where Jeff was exactly during the Driveway Confrontation.
[77] Adora-Lee testified that she saw Peter King strike Marvin in the head once with a pick axe. She said this occurred just as Constable King came on the scene. This is consistent with Arthur’s testimony as to the time he believes Marvin was struck, and his insistence that Constable King saw the striking as he was getting out of his vehicle upon his arrival on the scene. I find Constable King did see the striking. It just wasn’t a striking by Sam or Jeff.
[78] I find Marvin was struck once on the head by Peter King with a pick axe. The injuries were admitted by the parties. I had no other evidence to assess one way or the other if these injuries were consistent with more than one blow to the head with an axe. With the evidence I did have, it seems to me the injuries were serious and consistent with one blow to the head by a pick axe. I agree with the submissions of both the Crown and the defence it was very fortunate no one ended up dead that evening.
Party Liability
[79] The Crown urged me to find Sam and Jeff guilty as parties to the offence by virtue of the provisions of s. 21 of the Code. Section 21 provides:
(1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an 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.
[80] The Crown concedes that mere presence of an accused at the scene of an offence is not sufficient to make that person a party to an aggravated assault. There has to be more, encouragement or facilitation of the act that constitutes the offence in order for an accused to be found guilty as a party to an offence.
[81] With respect to Sam, other than the fact he was present at the scene, there was no evidence from any of the witnesses that he encouraged or facilitated any one else to assault Marvin. He was directing his attention to Arthur during the Driveway Confrontation. I accept Ramon’s evidence that it was Sam who was the recipient of a punch in the face at or about the very time Marvin was being struck by some other person. Based on the evidence before me, I have a reasonable doubt that Sam was a party to the aggravated assault on Marvin on January 1, 2013.
[82] With respect to Jeff, the Crown relies on Jeff’s comments prior to Marvin’s return the second time, to the effect, “this is war”. Also, Adora-Lee testified Jeff had axes (plural) in his hand before Marvin returned for the Driveway Confrontation. In addition, Adora-Lee testified that following her witnessing Marvin being struck by Peter King, Jeff attempted to have her brother Paul take a pick axe.
[83] Despite the fact I found Adora-Lee’s evidence credible and reliable, she did not testify that Jeff provided the pick axe to Peter King. Also, I have a reasonable doubt as to whether or not the pick axe Jeff was trying to give to Paul was actually the weapon used to strike Marvin. The Crown conceded Jeff was not being charged as an accessory after the fact.
[84] With regard to Jeff, I find the Crown has not proven beyond a reasonable doubt that Jeff encouraged or facilitated Peter King’s assault on Marvin.
[85] Accordingly with respect to count 1 of the indictment I find Jeff King and Sam King not guilty.
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: February 13, 2015
CITATION: R. v. King, 2015 ONSC 996
COURT FILE NO.: CR-13-0087
DATE: 2015-02-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Samuel James King and Jeff Ryan King
Accuseds
REASONS FOR JUDGMENT
Fitzpatrick J.
Released: February 13, 2015
/mls