COURT FILE NO.: CR-17-09
DATE: 2018-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
P. Keen, for the Crown
- and -
MEEQUIN KAMINAWAISH
K. Matthews, for the Defendant
Accused
HEARD: November 22, 23 and 24, 2017 at Kenora, Ontario
Mr. Justice J.S. Fregeau
Reasons for Judgment
Introduction
[1] Meequin Kaminawaish (the “accused”) has pleaded not guilty to a charge that she wounded Cornell Spade on or about April 18, 2015, thereby committing an aggravated assault contrary to s. 268 of the Criminal Code of Canada.
[2] At the conclusion of a three day trial, I reserved judgment. My decision, and the reasons for it, follow.
BACKGROUND NARRATIVE
[3] During the late afternoon and evening of April 18, 2015, the accused, Mr. Spade and Elijah Panacheese were socializing at the home of Mr. Panacheese and his partner Chantel Skunk. Their children were also in the home at this time. The home is located on the First Nations Territory of Mishkeegogamang.
[4] Toward the end of the evening, Mr. Spade suffered a wound to his right elbow. Constable Yesno arrived at the residence at 9:24 pm and found Mr. Spade outside lying in a pool of blood. At 9:45 pm, Constable Yesno and another officer took Mr. Spade to the Mishkeegogamang nursing station. On examination, it was noted that Mr. Spade was suffering from a 2 cm entry wound on the outside of and behind his right elbow. A 2 cm exit wound was noted on the inside of his right elbow. The injury was assessed at that time as a “stab wound”. No knife was ever recovered.
[5] The Crown and defence counsel have agreed that, while at the nursing station, Mr. Spade appeared to be intoxicated and in and out of consciousness. Mr. Spade indicated to Constable Yesno that he did not know what had happened to him or who may have done this to him.
[6] During the early morning hours of April 19, 2015, Mr. Spade was transferred by air ambulance to the Sioux Lookout Zone Hospital for emergency management. From there he was transferred to the Thunder Bay Regional Health Sciences Centre for emergency surgery.
[7] Mr. Spade underwent surgery during the morning of April 19, 2015. The post-operative report indicates that Mr. Spade’s right brachial artery was 95% severed and that his right musculocutaneous nerve was 50% severed. The injury was described by the surgeon as “a serious limb-threatening and life-threatening situation”.
[8] It is conceded that the injury suffered by Mr. Spade is a “wound” within the meaning of s. 268 of the Criminal Code. The issue is whether it has been proven beyond a reasonable doubt that the accused intentionally wounded Mr. Spade.
SUMMARY OF THE EVIDENCE
[9] The Crown’s case consists of the evidence of Cornell Spade, Maryann Panacheese-Skunk and Rachel Neekan. The defence called Elijah Panacheese. The medical records of Cornell Spade and the accused were filed on consent, as was the statement the accused provided to the Nishnawbe-Aski Police Service on April 20, 2015.
Cornell Spade
[10] Mr. Spade is a 38 year old band member of Mishkeegogamang who was living in Sudbury and working in Mishkeegogamang on April 18, 2015. He had been out socializing on the night of April 17, 2015. He acknowledged that he woke up hungover on April 18, 2015 and intended to consume more alcohol that day.
[11] According to Mr. Spade, as he was walking about the community on April 18, 2015, he encountered the accused on two different occasions, once at about 11:00 or 11:30 am and again at about 1:00 pm. He testified that on both occasions, the accused, unprovoked, approached him and threatened to kill him.
[12] Mr. Spade had known the accused since she was a child. She was 19 years old in April 2015. He had never had any previous issues with her. On this date, he did not believe the accused was serious. In his words, he “laughed it off”.
[13] Later that day, at approximately 3:00 pm, Mr. Spade once again encountered the accused as he was approaching the home of Elijah Panacheese. He asked the accused if she wanted to join him at Mr. Panacheese’s home to have some drinks. She agreed. Mr. Spade testified that the accused’s demeanour had changed and that she was now friendly toward him.
[14] Mr. Spade testified that he, the accused and Mr. Panacheese sat at his kitchen table and drank a bottle Kelly’s wine between the three of them. According to Mr. Spade, at approximately 6:00 pm, the accused started to become agitated and began swearing. Mr. Spade testified that when Mr. Panacheese left the kitchen to check on the children, the accused pulled a filleting knife out of a kitchen drawer, stating that she was “going to drop” him. She then calmed down and placed the knife on the kitchen counter. Mr. Spade described the knife as having a purple handle, with a melted “butt” and a 6 or 7 inch blade.
[15] Mr. Spade testified that he then told Mr. Panacheese that he was leaving. He walked to the front door and was putting on his boots and opening the door when he felt a “prick” on his right arm near his elbow. Mr. Spade testified that he turned and saw the accused behind him. He asked her if she had just stabbed him.
[16] On direct examination, Mr. Spade told the court that the accused did not respond. He felt panicky and heard blood falling to the floor. He stepped forward and outside of the home. He testified that his recall after this point was poor.
[17] Mr. Spade was cross-examined very thoroughly and extensively.
[18] On cross-examination, Mr. Spade readily agreed that he was hungover on April 18, 2018 but denied that he was still intoxicated from the night before. Mr. Spade testified that the accused approached him for the first time on April 18, 2015 as he was walking by her yard. According to Mr. Spade, the accused immediately asked him, “what the fuck’s going on?” He replied, “not a heck of a lot”. She responded, “I’m going to fuckin get you one day. Fuckin drop you. I’m going to fuckin kill you”. Mr. Spade continued on his way.
[19] Mr. Spade testified that he had walked by the accused’s home again later that day. After he had passed by her home, the accused approached him a second time from behind. According to Mr. Spade, the accused said “I’m going to drop you, I’m going to fuckin kill you”. He replied, “make it count, but I got to go”.
[20] Mr. Spade carried on, purchased two bottles of wine and then visited with his Uncle Jerry Kenequanash. He had a few drinks at his Uncle Jerry’s place, left one bottle of wine for his uncle and left between 2:00 and 3:00 pm. He denied that he was intoxicated at that point, describing himself as “feeling good”.
[21] Mr. Spade testified that as he walked toward his mother’s home he came across Mr. Panacheese working outside his house. As he was approaching Mr. Panacheese, Mr. Spade was “startled” by the accused coming up behind him and saying “boo”. According to Mr. Spade, he then asked the accused if she wanted to have a few drinks with him. At this point, approximately 3:00 pm according to Mr. Spade, the three of them go into Mr. Panacheese’s home.
[22] Mr. Spade testified that he took his shoes off at the front door and proceeded into the kitchen area. According to Mr. Spade, the accused and Mr. Panacheese were sober at this point. They proceeded to drink from and pass around the bottle of wine that Mr. Spade had with him. Mr. Spade agreed that this continued for about one hour before “things start to go bad”. He denied being intoxicated at this point, describing himself as at 4.5 on a 10 point scale of intoxication.
[23] According to Mr. Spade, the accused began acting drunk and “lippy, mouthy, swearing, agitated”. Mr. Panacheese was seated to the right of Mr. Spade. According to Mr. Spade, he told Mr. Panacheese that he was going to leave at which point Mr. Panacheese left the kitchen to attend to his children. Mr. Spade testified that as he was about to leave or leaving, the accused took a filleting knife out of a kitchen drawer. She placed it on the kitchen counter without threatening Mr. Spade or saying anything at all, according to Mr. Spade.
[24] Mr. Spade testified that he walked to the front door, put on his boots, reached over for the door knob with his left hand and felt a “prick” on his right arm. Mr. Spade testified that he then “turn(ed) around and I see her standing there with the knife in her hand”. He then testified that he asked her if she had just stabbed him. On cross-examination, Mr. Spade testified that the accused replied, “yeah, I’m going to fucking kill you then”. He then said he blacked out.
[25] Mr. Spade agreed with the suggestion that he had not previously told anyone that the accused had made this comment to him. He testified, among other things, that he “answered too fast” and “I’ve been going through a lot of stress over this”. He testified that “I don’t remember hearing that actually”. He maintained that he did see a knife in the right hand of the accused when he turned around.
[26] Mr. Spade denied that he had spoken to his mother about these events before providing the police with his statement on April 27, 2015. A portion of Mr. Spade’s April 27, 2015 video statement to Constable Lana Morrison was played to Mr. Spade on cross-examination. He again denied that he had had any discussions with his mother, Rachel Neekan or Maryanne Panacheese about this incident before giving his video statement to police, despite the fact that, in that statement, he said that he had been in constant contact with Rachel Neekan and Maryanne Panacheese.
[27] Mr. Spade acknowledged that “people” were talking about this incident on Facebook, that he read what people were talking about on Facebook and that some of the “information” he offered in his statement to the police he got from Facebook.
[28] Mr. Spade described as “impossible” and “nonsense” the suggestion that he was talking about or contemplating suicide on April 18, 2015, as testified to by Mr. Panacheese. He denied ever having said “grab the knife and stab me”. Mr. Spade insisted that he was injured at the front door of Mr. Panacheese’s home and not in the kitchen.
[29] On re-examination, Mr. Spade testified that his memory of feeling a “prick” on his arm and turning around and seeing the accused was his memory of events and not something he absorbed from viewing Facebook.
Maryann Panacheese-Skunk
[30] Ms. Panacheese-Skunk is 61 years old and a lifelong resident of Mishkeegogamang. She has four children, one of whom is Elijah Panacheese. During the evening of April 18, 2015, Mr. Panacheese called his mother and advised her that Cornell Spade had been injured at his house. She called for an ambulance and was told that two calls had already been received about this incident.
[31] Ms. Panacheese–Skunk has known the accused all of her life and testified that she “knows how she sounds”. The witness testified that she could hear the accused laughing in the background while she was talking on the telephone with her son.
[32] According to Ms. Panacheese-Skunk, she and Rachel Neekan went to her son’s home and saw Cornell Spade lying on the ground in front of the steps. As they were waiting for the police, Ms. Panacheese-Skunk saw the accused come out of the home and go over to where Mr. Spade was lying.
[33] Ms. Panacheese-Skunk testified that the accused began “pulling” Mr. Spade by the front of his collar while saying “my cousin”. Ms. Panacheese-Skunk told the accused to leave Mr. Spade alone. According to Ms. Panacheese-Skunk, the accused then assaulted her by striking her on her head with both of her arms.
[34] Ms. Panacheese-Skunk testified that Ms. Neekan came to her defence and got into a physical altercation with the accused.
[35] On cross-examination, Ms. Panacheese agreed that the accused is not known to her to be a “drinker”. She also agreed that the accused’s behavior on April 18, 2018 was abnormal and out of character.
Rachel Neekan
[36] Ms. Neekan is 48 years of age. She is a band member of Mishkeegagamang and has lived in the community for the last four years. Ms. Neekan testified that she was at home during the evening of April 18, 2015 when her son came to her home and advised her that Mr. Spade had been stabbed at Mr. Panacheese’s home.
[37] Ms. Neekan drove to that home and saw Mr. Spade lying by the deck. She drove to Ms. Panacheese-Skunk’s home to ask for help. The two of them then returned to Mr. Panacheese’s home. Ms. Neekan observed the accused trying to get Mr. Spade up and Ms. Panacheese-Skunk telling the accused to leave him alone. Ms. Neekan testified that the accused then began punching Ms. Panacheese-Skunk. Ms. Neekan came to her defence and pulled the accused off of her. According to Ms. Neekan, the accused then came after her. The two fell to the ground and Ms. Neekan sat on the accused until police arrived.
[38] On cross-examination, Ms. Neekan agreed that the accused’s behavior on April 18, 2015 was odd. She described the accused as “kinda pumped up”.
Elijah Panacheese
[39] Mr. Panacheese was a defence witness.
[40] Mr. Panacheese and the accused are cousins but not close. He described himself as a “childhood friend” of Mr. Spade.
[41] Mr. Panacheese was at home doing laundry and watching his children on April 18, 2015. He noticed Mr. Spade and the accused outside. Mr. Spade asked if they could stop in and Mr. Panacheese agreed. The three of them sat at his kitchen table. According to Mr. Panacheese, the accused and Mr. Spade were already “drunk” when they arrived at his place. Mr. Panacheese had not been drinking and did not become intoxicated that evening.
[42] According to Mr. Panacheese, the three of them chatted while “having shots” of Kelly’s, a fortified wine. He testified that after a while, Mr. Spade “got…depressed…or something”, explaining that Mr. Spade was saying that he wanted to kill himself. He heard the accused saying that she didn’t want him to do so.
[43] Mr. Panacheese testified that he heard Mr. Spade say “something about grabbing a knife and giving it to her then trying to ask her to stab him or something”. When asked if he recalled exactly what was said, he testified that he remembered hearing, “here’s the knife or grab the knife and stab me”. Mr. Panacheese testified that he did not see a knife at this point.
[44] Mr. Panacheese qualified his observations by testifying that he was keeping an eye on his children at the same time and “I didn’t want to look at them” (the accused and Mr. Spade). When asked if he also kept an eye on the accused and Mr. Spade he stated, “not really not at them”.
[45] Mr. Panacheese testified that he recalled Mr. Spade and the accused standing in the corner of the kitchen, near the sink and window and hearing Mr. Spade repeating, “stab me”. From his position sitting and facing the living room, the two of them were at right angles to and somewhat behind Mr. Panacheese’s left shoulder.
[46] Mr. Panacheese next heard Mr. Spade say “ah” or “ah fuck” at which point he looked directly toward Mr. Spade. On direct examination, Mr. Panacheese testified that he saw Mr. Spade coming towards him. In the witness’ words, “he was just holding that blade and I seen blood, told him to walk out”. Mr. Spade then walked past Mr. Panacheese and out the front door. Mr. Panacheese immediately called the nursing station and then went outside to check on Mr. Spade. He apparently waved down Ms. Neekan who was driving past his home.
[47] Mr. Panacheese went back into the house to check on the accused and found her sitting on a kitchen chair. He testified that “I guess she snapped out of it then she walked out…” Mr. Panacheese then testified that he did not see any weapon in the kitchen or elsewhere but that he saw blood in the corner of the kitchen leading to the front door.
[48] On cross-examination, Mr. Panacheese testified that he and Chantel Skunk did not have filleting knives in their house in April 2015. He agreed that Mr. Spade suffered a stab wound in his house on April 18, 2015.
[49] Mr. Panacheese testified that he heard Mr. Spade say that he wanted to kill himself and that he heard the accused telling Mr. Spade to stop talking like that before he heard Mr. Spade say “stab me, stab me”. He then heard Mr. Spade say “ah fuck”, turned and saw Mr. Spade holding his arm with his opposite hand in the area of his elbow. He agreed that his attention was on Mr. Spade at this point and not on the accused.
[50] On cross-examination, Mr. Panacheese insisted that he had told the police about Mr. Spade “being depressed” that night despite that fact that it did not appear in his written statement to the police.
Evidence Filed on Consent
[51] On April 18, 2015, at 9:45 pm, Mr. Spade was taken to the Mishkeegogamang nursing station. Upon admission, his condition was described as “intoxicated++”. On April 19, 2015, at 12:30 am, the medical records indicate that Mr. Spade “remains ++intoxicated”.
[52] On April 20, 2015, at 7:30 am, the accused attended the Mishkeegogamang nursing station complaining of a sore left arm. At approximately 8:00 am, the accused was given a 7.5 mg dose of morphine.
[53] On April 20, 2015, at 2:45 pm, the accused gave a statement to Constable Yesno of the Nishnawbe-Aski Police Service. The statement consisted of the following question and answer:
“Q. My name is Cst. Brad Yesno #1366 of the Nishnawbe-Aski Police Service. I am investigating an incident that occurred on the 18th of April at or around 107 William St. What if anything can you tell me about this?
A. Self defence.”
THE POSITIONS OF THE PARTIES
The Accused
[54] The accused submits that there is no direct evidence that she intentionally stabbed Mr. Spade on April 18, 2015. Given the lack of direct evidence, the accused submits that the Crown must prove beyond a reasonable doubt that her having intentionally stabbed Mr. Spade is the only reasonable inference to draw from the circumstantial evidence heard in this case.
[55] The accused suggests that I should discount the evidence of Mr. Spade entirely due to very significant concerns as to his credibility and the reliability of his evidence. These concerns are based on several different considerations.
[56] The accused submits that Mr. Spade performed poorly on cross-examination. It was suggested that he was evasive, argumentative and uncertain.
[57] The accused contends that the evidence establishes that Mr. Spade was highly intoxicated on the evening of April 18, 2015. Mr. Panacheese described Mr. Spade as “drunk” when he arrived at his home that day. Mr. Spade consumed more alcohol with Mr. Panacheese. Constable Yesno described Mr. Spade as appearing to be intoxicated and unable to say what had happened to him or who may have been responsible. The medical records from the nursing station describe Mr. Spade as “++intoxicated”.
[58] The accused submits that the only conclusion that can be drawn from this evidence is that Mr. Spade was highly intoxicated at the time when he was injured and that his direct evidence as to who injured him and how should be given no weight.
[59] The accused further submits that Mr. Spade’s testimony about the accused having threatened him on two separate occasions on April 18, 2015 simply does not make sense. Mr. Spade had no prior issues with the accused, a 19 year old female. Spontaneously and without provocation, the accused, according to Mr. Spade, approached him that day not once but twice and threatened to kill him. Further, as he is approaching Mr. Panacheese’s home later that day, the accused, according to Mr. Spade, sneaks up behind him and playfully says “boo”, startling him. Mr. Spade then asks the accused to join him for a few drinks.
[60] The accused submits that this evidence is simply incredible. The accused suggests that this evidence was fabricated by Mr. Spade to support his allegation that the accused intentionally stabbed him later that day – one element of what the accused refers to as Mr. Spade’s “re-creation of events”.
[61] The accused submits that there is evidence to suggest that Mr. Spade has reconstructed the events of April 18, 2015, in an effort to compensate for his personal lack of recall. The accused submits that Mr. Spade conceded that he had spoken with both Ms. Panacheese-Skunk and Ms. Neekan about this incident before talking with the police. The accused also contends that Mr. Spade acknowledged having viewed Facebook posts about the events of April 18, 2015. It is submitted that, at trial, Mr. Spade repeated what he had been told and what he had read as his personal, independent recollection of events.
[62] The accused submits that the most significant issue with Mr. Spade’s credibility and reliability is that he admittedly gave false evidence during his cross-examination. Mr. Spade testified that he was stabbed by the accused at the front door of Mr. Panacheese’s home. He further testified that he turned around, asked the accused if she had just stabbed him and that she replied “yeah, I’m going to fucking kill you then”. He thereafter recanted and conceded that he had not heard the accused make this comment.
[63] The accused submits that Mr. Spade gave false testimony and fabricated a very incriminating piece of evidence. The accused submits that Mr. Spade is simply not credible and that his evidence is not reliable. The accused contends that it would be dangerous for this court to place any weight on any of the evidence of Mr. Spade.
[64] The accused submits, in particular, that the court should reject Mr. Spade’s evidence that he was stabbed at the front door of Mr. Panacheese’s home and turned around and saw the accused holding a knife. If this evidence is not accepted, the accused submits that the only evidence remaining as to where and how Mr. Spade was injured is that of Mr. Panacheese.
[65] The accused submits that Mr. Panacheese was sober on April 18, 2015. He testified that Mr. Spade got “depressed or something” and expressed an intention to kill himself. The accused submits that Mr. Panacheese gave a detailed account of Mr. Spade and the accused standing in the corner of the kitchen, near the sink and window. Mr. Panacheese heard Mr. Spade say “grab the knife, stab me, stab me” and the accused telling him to stop talking like that. He then heard Mr. Spade say “ah fuck” at which point he turned and saw Mr. Spade holding his arm and bleeding. He then told Mr. Spade to go outside.
[66] The accused submits that there is no reason to question the accuracy of Mr. Panacheese’s evidence on this issue. If it is accepted that Mr. Spade was injured in the kitchen as Mr. Panacheese told the court, the accused submits that it would be speculation to conclude that the accused intentionally stabbed him as alleged.
[67] The accused submits that, given this evidence of Mr. Panacheese, there is more than one reasonable inference that can be drawn as to how Mr. Spade was injured. The accused submits that it is possible that this was nothing more than a tragic accident which occurred while Mr. Spade and the accused were arguing and perhaps fighting over a knife.
[68] The accused submits that she need not prove how Mr. Spade was injured. The accused submits that the Crown must prove beyond a reasonable doubt that she intentionally stabbed Mr. Spade. In order to do so on the basis of the proven facts, the accused submits that the Crown must prove beyond a reasonable doubt that her guilt is the only reasonable inference to be drawn from the proven facts.
[69] The accused contends that other reasonable inferences can be drawn from the critical evidence and that the Crown has therefore failed to establish her guilt beyond a reasonable doubt.
[70] The accused submits that I should place no weight on the statement she provided to Constable Yesno on April 20, 2015, in which she replied “self-defence” when asked to comment about his investigation into the April 18, 2015 incident at Mr. Panacheese’s home. The accused submits that she was under the influence of morphine when she provided this statement and that the value of the statement is therefore significantly reduced.
The Crown
[71] The Crown submits that he is not required to prove exactly how the injury to Mr. Spade was inflicted. The Crown submits that he is required to prove beyond a reasonable doubt that the accused inflicted the injury or stab wound intentionally.
[72] The Crown submits that, excluding the children, there were three people in Mr. Panacheese’s home April 18, 2015 – Mr. Panacheese, Mr. Spade and the accused. Mr. Panacheese did not inflict the injury on Mr. Spade. It is submitted that this leaves for the court’s consideration Mr. Spade himself and the accused.
[73] It is further submitted that two eye witnesses present – Mr. Spade and Mr. Panacheese – have either given direct evidence that the accused inflicted the stab wound or evidence from which the only rational inference to be drawn is that the accused inflicted the stab wound.
[74] The Crown concedes that there are credibility and reliability concerns with the evidence of Mr. Spade. However, the Crown submits that the court should not, as suggested by the accused, completely reject his evidence as being a reconstruction of the events of April 18, 2015. The Crown submits that many aspects of Mr. Spade’s evidence dovetail with the evidence of other witnesses. The Crown also submits that while Mr. Spade was successfully impeached on some very important aspects of his evidence on cross-examination, he was unshaken on many points, including his insistence that the accused inflicted his wound.
[75] The Crown concedes that Mr. Spade’s testimony that the accused acknowledged having stabbed Mr. Spade at the doorway of the home was untruthful. However, the Crown submits that, at this point in the cross-examination, Mr. Spade had been on the stand for a long period of time and was in significant pain and discomfort. The Crown also notes that Mr. Spade very quickly volunteered that this evidence was not truthful. The Crown submits that the court should not reject all of Mr. Spade’s evidence as a result of this one issue.
[76] The Crown conceded that it would be reasonable to prefer Mr. Panacheese’s evidence over that of Mr. Spade as to where in the home this incident occurred. The Crown also conceded that Mr. Spade’s actual intoxication, his attempt to minimize his actual intoxication and his inability to recall any coherent time frame of events testified to all impact Mr. Spade’s credibility and the reliability of his evidence.
[77] The Crown submits, however, that the role of the court is to assess all evidence, Crown and defence, as a whole. The Crown contends that some of Mr. Spade’s evidence is corroborated by other witnesses. Where it is not, the Crown acknowledges that the court must very carefully assess it before accepting the evidence. The Crown quite reasonably submits that where the evidence of Mr. Spade conflicts with that of Mr. Panacheese, the court should prefer the evidence of Mr. Panacheese.
[78] The Crown submits that the evidence of Mr. Panacheese and that of Mr. Spade are consistent and corroborate each other on one crucial issue – that the accused can be the only person who inflicted the stab wound and that it cannot have been an accident.
[79] The Crown submits that Mr. Panacheese’s evidence included the following:
he was not looking directly at the accused and Mr. Spade at the time of the incident;
immediately prior to the incident, he heard Mr. Spade say “stab me, stab me”;
he then heard Mr. Spade say “ah fuck” causing him to turn and focus on Mr. Spade;
he observed Mr. Spade holding his arm with his opposite hand and not holding a knife;
he did not hear a knife drop to the floor.
[80] The Crown submits that the only rational inference to be drawn from this evidence is that the accused was holding the knife and had stabbed Mr. Spade. The Crown submits that it is simply not realistic to suggest, given the nature and circumstances of the injury that Mr. Spade’s wound could have been caused accidentally. The Crown contends that this was a “through and through” injury to the arm occurring immediately after the victim is heard saying “stab me, stab me”. The Crown submits that it is neither rational nor logical to consider that this may have occurred accidentally.
[81] The Crown submits that the court cannot take judicial notice of the effect that a 7.5 mg dose of morphine may have had on the accused at the time she gave her statement to the police. The Crown submits that the only logical inference to be drawn from the accused’s statement is that she was referring to a physical altercation she had on April 18, 2015 and that she responded physically to protect herself.
Discussion and Analysis
[82] Meequin Kaminawaish is charged with wounding Cornell Spade on April 18, 2015, thereby committing an aggravated assault contrary to s. 268 of the Criminal Code.
[83] For me to find the accused guilty of aggravated assault, Crown counsel must prove each of the following elements of the offence beyond a reasonable doubt:
that the accused intentionally applied force to Mr. Spade on April 18, 2015; and,
that the force the accused intentionally applied wounded Mr. Spade.
[84] It is not in dispute that the injury suffered by Mr. Spade on April 18, 2015 was a wound. The issue for the court is whether it has been proven beyond a reasonable doubt that the accused intentionally applied the force which wounded Mr. Spade.
[85] I have very serious reservations about the credibility of Mr. Spade and the reliability of any of his independent recall of the events of April 18, 2015.
[86] Based on all of the evidence, I conclude that Mr. Spade was highly intoxicated during the evening of April 18, 2015. He woke up that day hungover. He drank during the afternoon at his Uncle Jerry’s home. Mr. Panacheese described Mr. Spade as “drunk” when he arrived at his home on April 18, 2015. Mr. Spade consumed more alcohol while at Mr. Panacheese’s home. Constable Yesno described Mr. Spade as appearing to be intoxicated at approximately 9:45 pm on April 18, 2015. Staff at the nursing station described him as ++intoxicated at 9:45 pm on April 18, 2015 and as still ++intoxicated three hours later.
[87] It was obvious that Mr. Spade’s recollection of events which occurred during the evening of April 18, 2015 was incomplete. I find that this was in part due to his level of intoxication, which he attempted to minimize while giving evidence. Mr. Spade in fact told Constable Yesno that he did not know what had happened to him or who may have injured him that night.
[88] I find that it is also reasonable to conclude that Mr. Spade has, to some extent, reconstructed the events of that night in his own mind by talking to other people and reading Facebook posts in which third parties described the events of that evening.
[89] Mr. Spade quite clearly and emphatically testified that he was stabbed at the front door of Mr. Panacheese’s home as he was about to leave. Mr. Panacheese, who was not intoxicated that night, testified that the incident occurred in his kitchen, while the accused and Mr. Spade were in the corner by the sink and the window. I accept this evidence of Mr. Panacheese. Mr. Spade is either incorrect or fabricating his evidence on this point.
[90] Finally, and most significantly in my opinion, Mr. Spade knowingly gave false testimony about a crucial piece of what would have been incriminating evidence if believed. On cross-examination, Mr. Spade testified that he felt a prick on his right arm when at the door of the house about to leave. He then testified that he turned and asked the accused if she had just stabbed him, to which he told the court the accused replied in the affirmative. When confronted on this point he acknowledged that he had not in fact heard the accused make this comment.
[91] I accept the Crown’s submissions that Mr. Spade was in pain and some general distress at this point in his evidence. However, there is simply no getting around the fact that he gave false evidence under oath in a clumsy attempt to further implicate the accused.
[92] For the foregoing reasons, I find that Mr. Spade was not credible nor was his evidence reliable. I agree with the defence submission that it would be dangerous to place any weight on the uncorroborated evidence of Mr. Spade. I therefore accept the invitation of the Crown to prefer the evidence of Mr. Panacheese over that of Mr. Spade where their evidence conflicts.
[93] Mr. Panacheese testified that this incident occurred in the kitchen of his home. His evidence is obviously crucial. I have carefully reviewed a transcript of both his direct and cross-examinations. Having done so, I am left with the impression that he was less than open and forthcoming when testifying. However, his evidence as to what happened in the kitchen of his home on April 18, 2015 is the only evidence that I am prepared to rely on in determining whether the Crown has proven the case against the accused.
[94] According to Mr. Panacheese, he “didn’t want to look at them” (the accused and Mr. Spade) and was instead keeping an eye on his children at the time. His observations included:
that Mr. Spade and the accused were standing in the corner of the kitchen, at the window/sink area, to his left and slightly behind his left shoulder;
that Mr. Spade was “depressed…or something”, expressing an intention to kill himself, “he was talking crazy”;
hearing the accused say that she did not want him to do so;
hearing Mr. Spade say “here’s the knife” or “grab the knife” and “stab me, stab me”;
hearing Mr. Spade say “ah fuck”.
[95] Mr. Panacheese then testified as follows:
…then I started looking towards him…he was coming towards me holding his…I don’t know, whatever, then he was just holding that blade and I seen blood, told him to walk out.
[96] However, soon thereafter in his direct examination, Mr. Panacheese testified that he did not see any weapon. He repeated this on cross-examination and agreed that he was not looking at the accused and did not know what she had in her hands.
[97] I accept the submission of the Crown that Mr. Spade’s wound was caused by a long, narrow blade, similar to that of a filleting knife.
[98] The accused submits that the evidence of Mr. Panacheese must leave me with a reasonable doubt as to whether she intentionally wounded Mr. Spade. The accused suggests that the possibility of an accidental stabbing has not and cannot, on the evidence, be excluded. The possibility of this wounding having been an accident is said to represent reasonable doubt.
[99] The Crown submits that the only rational inference to be drawn from Mr. Panacheese’s evidence is that the accused had or took a knife and stabbed Mr. Spade. The nature of the injury is suggested to exclude the possibility of an accident.
[100] Included in my analysis is the statement given by the accused on April 20, 2015 at 2:45 pm. I am not prepared to take judicial notice of what impact, if any, an earlier dose of morphine may have had on the accused at the time of her statement.
[101] The accused was asked what she could tell the officer about an incident that occurred on April 18, 2015 at the address of Mr. Panacheese’s home. This was an obvious reference to Mr. Spade being stabbed that night. The accused replied “self-defence”.
[102] A reasonable doubt is not a far-fetched or frivolous doubt. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. It is not enough for me to believe that the accused is probably or likely guilty. On the other hand, however, I must bear in mind that Crown counsel is not required to prove their case with absolute certainty.
[103] At the end of the day, after considering all of the evidence, in order to convict the accused, I have to be sure that she intentionally stabbed Mr. Spade on April 18, 2015.
[104] Having considered all of the evidence, I am unable to exclude the possibility that Mr. Spade may have been accidentally stabbed on April 18, 2015. He and the accused were intoxicated. They engaged in some form of conversation or dispute. A knife was introduced into the dispute by one or the other of them. Mr. Spade suffered a very serious stab wound from the outside of his arm through to the inside.
[105] No knife was found. At one point in his testimony, Mr. Panacheese stated that he had seen Mr. Spade “holding that blade” as Mr. Spade was walking toward him. At other points in his testimony, he stated that he had not seen any weapon.
[106] Quite simply, I cannot be sure, in these circumstances, that the accused intentionally stabbed Mr. Spade. I do not accept the Crown’s submission that the possibility of this having been an accident is simply not realistic. The accused’s statement does not eliminate the reasonable doubt that I am left with after considering all of the evidence, nor does the evidence about her unusual behaviour after Mr. Spade is injured.
[107] The accused is found not guilty.
The Hon. Mr. Justice J.S. Fregeau
Released: February 2, 2018
COURT FILE NO.: CR-17-09
DATE: 2018-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MEEQUIN KAMINAWAISH
REASONS FOR JUDGMENT
Fregeau J.
Released: February 2, 2018
/sf