J.D. Koch IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 149 Date: November 8, 2010 Information: 24414281 (Mayer) 24417999 (Dagenais) Location: Prince Albert Between: Her Majesty the Queen and Jeremy Angelo Mayer Aimee Lynn Dagenais Appearing: M. Longworth For the Crown M. Simonot, Q.C. For the Accused JUDGMENT S. C. CARTER, I. THE CHARGES [1] Jeremy Angelo Mayer (Mayer) and Aimee Lynn Dagenais (Dagenais) are charged on separate informations with assaulting Jared McIntyre contrary to s. 266 of the Criminal Code. Mayer is also charged with wilfully damaging the windows of car contrary to s. 430(4) of the Criminal Code. II. TRIAL PROCEDURE [2] Marcel Simonot, Q.C. represented both accused. He agreed that, because the charges all arose out of the same incident, the Crown and defence would be allowed to call all of their evidence at the trial on one information which would all be applied over to the other information. The Court agreed with this procedure. The trial then proceeded on information 24414281. At the close of the trial the Crown and defence evidence was applied over to and became the evidence on information 24417999. III. CROWN EVIDENCE a) Jared McIntyre [3] The complainant, Jared McIntyre (McIntyre), testified that on April 4, 2010, at approximately midnight, he and his girlfriend’s brother, Mitchell Corfmat, drove from the Driftwood Trailer Park just outside Prince Albert, Saskatchewan to Rockcees Nightclub on Second Avenue West in Prince Albert, Saskatchewan. McIntyre had purchased some cocaine for person named Kenny Bear whom he was going to meet in the area of the nightclub. [4] Rockcees Nightclub is situated at the northeast corner of small strip mall which runs east and west on the west side of Second Avenue West in Prince Albert. McIntyre was driving his mother’s Ford Escort station wagon. He was coming from the south and turned across the southbound lanes of Second Avenue to enter the strip mall parking area at the southeast corner. At this point there is coffee shop called Turks. McIntyre testified that this is where he met Kenny Bear in order to hand over the cocaine. [5] McIntyre testified that he then drove west to the end of the strip mall and around the building and, now driving in an easterly direction, drove slowly past the doors of Rockcees. There were people outside smoking. He didn’t want to hit them and was thus driving slowly. He testified that he saw and heard Mayer and Dagenais fighting. Dagenais was waving her arms around and screaming just outside the doors to Rockcees. moment later his rear window was smashed in. He stopped the car and at that moment his front passenger’s side window was smashed in. He testified that both of these things were done by Mayer whom he recognized and whom he has known from high school. When Mayer smashed the passenger window his foot also connected with the right side of Mitchell Corfmat’s face. [6] He then drove away onto Second Avenue and back to his home at the trailer park. Once back home he told his girlfriend, Brittany Graham, what had occurred. Moments later both of the accused arrived in car. When McIntyre went to the door to have look he testified that Dagenais was doing more damage to the car and Mayer was rushing up the stairs toward the trailer. [7] McIntyre testified that Mayer was at the top of the stairs. He said he felt threatened and as Mayer got closer, he swung at Mayer hitting him at which point they both fell off the stairs and onto the ground. His recollection from this point on was not the best. He recalled being choked by Dagenais and that Mayer was on top of him punching him. He testified that he managed to get out from under all this, got kicked in the head couple of times and stumbled back into the trailer. [8] McIntyre testified that he had no idea why Mayer broke the windows and came at him at the trailer as he did. He recalled confrontation at Emma Lake in the summer. In cross-examination he said it was probably product of jealousy because he and Dagenais used to date each other. He said that he threw the first punch because he felt that he, his family and his home were being threatened by Mayer. He said in his testimony: “He (Mayer) had already kicked out the windows of my car, I’m pretty sure he wasn’t coming to apologize”. [9] In cross-examination he denied taking $100.00 from Mayer through the open passenger window and then closing the window and driving off. He said that his girlfriend didn’t hit Mayer with two by four. b) Mitchell Corfmat [10] Mitchell Corfmat (Corfmat) is the brother of Brittany Graham. He accompanied McIntyre to Rockcees. His recollection was clouded by having consumed bit less than case of twelve beer between 5:00 p.m. and 10:30 p.m. which is the time that he went over to his sister’s trailer. His recollection was that Kenny Bear was actually with them at the trailer and that they drove to Rockcees in order to drop Kenny Bear off. He recalled that Bear got out of the car at the west end of the strip mall. [11] Corfmat testified that as McIntyre drove slowly by Rockcees Mayer jumped off the sidewalk and kicked in the front passenger window. He recognized Mayer because he saw his face and knows one of Mayer’s siblings and had seen him before. He said that McIntyre wanted to stop and confront Mayer and Corfmat urged him to just get going. He could already see blood from the cuts on his face. As McIntyre drove away Corfmat testified that the rear window of the car was smashed in. Corfmat did not see who did this. [12] Once back at the trailer Corfmat went into the washroom in order to clean his cuts and get the glass off his face and out of his hair. As he was doing this he heard screaming from the outside. He went to the trailer’s door. He saw Mayer on top of McIntyre with Dagenais choking him from behind. He yelled at his sister to push Mayer off McIntyre. She told him to call his father. McIntyre got loose and then he and Mayer were standing up and punching each other. Neither McIntyre, nor his sister, had any objects in their hands. c) Brittany Graham [13] Brittany Graham (Graham) is McIntyre’s girlfriend and Corfmat’s sister. She testified that when McIntyre got back from Rockcees she was told of the damage that had been done to the car. She went to the trailer door to have look and found that the accused were already outside. She said she saw Dagenais trying to break the back passenger window. As she was watching this McIntyre came to the door. She went off to the washroom to tell her brother what was happening. When she came back McIntyre and Mayer were on the ground. Mayer was on top of McIntyre. Dagenais was behind them. She saw lots of punches and kicks by all three. She went down to try to break them up. She saw Dagenais kick McIntyre in the head. She testified that Dagenais told her that they were doing this because Jared had “fucked my sister”. She remembered Dagenais yelling at McIntyre saying that she had told him (McIntyre) that her boyfriend was stronger than him. Graham recalled putting Mayer in headlock in order to keep him around until the police arrived. She testified that Mayer got loose, picked up two by four and headed toward the house. Presumably Mayer thought better of it because there is no evidence of what happened next and defence counsel did not cross-examine on this point. IV. DEFENCE EVIDENCE a) Aimee Lynn Dagenais [14] Aimee Lynn Dagenais (Dagenais) testified that she, Mayer and Kenny Bear were having few beers at Mayer’s new autobody shop which he had just recently opened. They each had four beer and then went over to her place in order to get ready to go to Rockcees. They went to the bar at around 10:00 p.m. She had three more beer. Shortly after midnight she went outside for some reason and saw Mayer lying on the surface of the parking lot. She and Mayer then immediately hopped into her car and drove off to “Jared and Brittany’s trailer”. At the trailer she got out of the car as did Mayer. Mayer wanted his money back and was walking toward the trailer. Jared was on top of the stairs. She said that the two men rushed at each other. Jared swung at Mayer. Mayer fell to the ground on his back. Jared jumped on top of Mayer. Mayer flipped McIntyre over and got on top and then began “feeding him shots left and right”. She recalled Brittany being on the top of the steps yelling and screaming. She testified that Brittany grabbed two by four and hit Mayer in the back of the head with it. She said that McIntyre then grabbed the two by four from Brittany and hit Mayer three times in the face with the two by four. Throughout all of this she testified that all she did was watch until she heard that the cops were coming. At this point she said that she went behind Mayer and tried to pull him off to get them away from the scene. b) Jeremy Angelo Mayer [15] Jeremy Angelo Mayer (Mayer) testified as well. He evidence was much the same as Dagenais’. He said that he was outside the bar when McIntyre crept up in the car. The passenger window rolled down and McIntyre asked him if he wanted to buy gram of cocaine for $100.00. Mayer testified that he gave McIntyre the $100.00 through the open window. The car was then put in gear. Corfmat rolled up the window and the car began to drive off. Mayer then said he kicked in the passenger side window falling to the ground in the process. He got up as Dagenais was running out of the bar door. They got into her car and drove after McIntyre. [16] Once at the trailer Mayer said that he ran up the steps asking for his money back. McIntyre refused, swung at and hit him and he fell off the stairs. He then described the fight in much the same way as Dagenais did. He recalled at some point waking up and assumed that someone must have hit him because the last he remembered he was on top of McIntyre punching him. He said he saw McIntyre with two by four in his hands. McIntyre hit him three times in the face. [17] In cross-examination Mayer said that when he rushed up the stairs toward McIntyre he was not angry. He just wanted his money back. He confirmed Dagenais’ testimony to the effect that she just watched and did nothing. [18] Both the Crown and the defence filed photographs of the injured parties. The three photographs of McIntyre show injuries consistent with fistfight bloodied swollen lips, bruising around the right eye and other contusions and abrasions. The photograph of Corfmat shows cuts along the right eye of his face from his cheekbone to his hairline. The three photographs of Mayer are close ups. One is photo of his lower chin, where stitches have been applied to cut. One is of his right ear and shows some reddening to the ear itself. The third is photograph of his right eyebrow showing stitches to cut in that area. [19] The defence also filed report from Dr. N. DeBeer who examined Mayer later in the day on April 4, 2010. The doctor’s examination revealed that Mayer had the following injuries: two centimetre laceration to his right eyebrow; two wounds on his chin; two centimetre diameter horizontal bruise and three centimetre post neck bruise on his scalp. The report notes “no other injuries except as described above”. V. ANALYSIS [20] Whether the physical altercation in this case was precipitated by jealousy or by a drug deal gone bad, there is no doubt that Mayer was the aggressor throughout. He smashed in one, if not two, car windows. He chased after McIntyre with Dagenais’ help. Once at the trailer he rushed up the stairs toward McIntyre. This was threatening behaviour and I believe McIntyre when he said that he felt threatened. As McIntyre said in his testimony, Mayer was not there to apologize. [21] Section 37 of the Criminal Code states: (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. (2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [22] In my view s. 37 applies to the actions taken by McIntyre. The actions of Mayer and Dagenais were aggressive. McIntyre took necessary and lawful action to protect himself and his family. [23] do not believe that either McIntyre or Graham used two by four to hit Mayer. In my view Mayer’s injuries would have been far more severe if this had actually happened. However, even if it did occur, the furious struggle between Mayer and McIntyre, aided by Dagenais, would have justified the use of such weapon. Its use as described would not have been unnecessary force. [24] With respect to each accused, Mayer admits to fighting with McIntyre. Dagenais testified that all she did was watch as Mayer and McIntyre fought, only getting involved when she pulled Mayer away upon hearing that the police had been called. McIntyre says that Dagenais choked him. Graham and Corfmat confirmed this in their testimony. Mayer and Dagenais had been drinking that evening. There is no evidence that McIntyre and Graham were under the influence of any substance, and for that reason accept their testimony as to the involvement of Dagenais in the altercation. DECISION [25] I find both the accused guilty of assault upon McIntyre contrary to s. 266 of the Criminal Code. Mayer was clearly the main aggressor. He attacked McIntyre and punched and kicked him until Dagenais convinced him to leave. Dagenais choked McIntyre at one point during the fight. [26] With respect to the count of wilful damage to the car windows, Mayer certainly admitted to breaking the front passenger window, and he probably broke the rear window. However, the Crown was unable to prove that the cost of repairing the windows was under $5,000.00. There was no evidence whatsoever as to what the cost of repair was. There being no evidence of an essential element of the offence, I find Mayer not guilty of the second count on information 24414281. [27] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 8th day of November, 2010. S. C. Carter,
The accused were both charged with assault contrary to s. 266. The complainant admitted that he threw the first punch but said that he did so because the male accused had already broken the windows in his car and punched his passenger and was not 'coming to apologize.' HELD: The accused were convicted of assault. Whether the physical altercation was precipitated by jealousy or a drug deal, there is no doubt that the accused was the aggressor throughout. He smashed one, if not two, car windows. The accused's behaviour was threatening and the Court accepted that the accused had not attended the house to apologize. The complainant took necessary and lawful action to protect himself and his family under s. 37 of the Criminal Code.  While the Court did not believe that either complainant used a weapon, if it did occur it would have been justified in the context of the assault. The accused was acquitted of mischief because the Crown failed to prove the value of the broken windows.