nan Saskatchewan Provincial Court Prince Albert, Saskatchewan IN THE MATTER OF Information No. 32921631 Between Her Majesty the Queen, And Lee Aaron Zoerb Counsel: J. Morall, for the Crown. S. Loewen, for the defence. JUDGMENT Goliath Prov. Ct. J. August 28, 1998 1 GOLIATH PROV. CT. J.:- Lee Zoerb is charged with anassault causing bodily harm to Jason Baikie. The charge arisesout of an altercation which occurred at Uncle Charlie's BarDecember 14, 1997, in which Baikie suffered significant injuriesabout the head and face. The events surrounding the altercation were described by three Crown witnesses, and by five defence witnesses including the accused. As is usually the case, there are discrepancies. The accused admits that he threw punch but says that Baikie struck him first. He also says that he does not think that he caused Baikie's injuries. nan The facts leading up to the incident in question include previous incident in October at Uncle Charlie's in which the accused subdued patron with head-lock and removed him from the bar. The patron happened to be penitentiary employee, and it is suggested by the defence that his co-workers were out to "get" the accused or to exact some manner of revenge. There are other facts tending to show that Jason Baikie, who works at the penitentiary, was not favourably disposed toward the accused, and that he was indeed instrumental in bringing about the events which resulted in his injuries. His remarks made to Mr. Green in the washroom prior to the alleged assault support the defence's theory that he may indeed provoked the incident. nan The facts relevant to the determination of the issues are as follows: nan Jason Baikie arrived at Uncle Charlie's around 11:00 p.m. on the date in question. He met some friends and associates, and spent the rest of the night socializing and dancing. The accused was employed by Uncle Charlie's as adoorman and relief bartender. During the course of the evening there were two minor incidents and exchanges between Baikie, his associates, and the accused, neither of which progressed beyond the verbal stage. At about 3:00 a.m., Baikie says he observed the accused make motion or gesture which he interpreted as an invitation to become involved with him, or "bring it on" (i.e. get involved or get into fight). It is at this point in the proceedings that the witnesses' descriptions of events begin to nan Baikie says that he approached the accused and said "what's your problem?". Jason Layman got between him and the accused and turned him around, to defuse the situation. Baikie says that as he was turning around he was hit on the back of the head, saw stars, and woke up in the off-sale part of the bar. Baikie had been drinking at Uncle Charlie's since about 11:00 p.m. He had had one beer before going there, and probably six or more shots of gin in "mini pitchers". He was clearly intoxicated. nan Jason Layman also says that the accused motioned to Baikie to "bring it on". When Baikie got involved, he says, he got between them and turned him around, saying "we don't need this shit". He says at this time the accused punched Baikie and knocked him down. He says that accused gave Baikie two more shots, one on the nose, and another around the eye. Layman had had about three drinks on the night in question as he was designated driver. He was not intoxicated. nan Jennifer White also says that the accused was pointing at Baikie and inviting to come over to him. She confirms the testimony of Baikie and Layman to the effect that Baikie had turned to walk away when the accused got off his perch on the d.j. booth and hit him. White had had two drinks and was not intoxicated. She drove Baikie to the emergency department of the Victoria Hospital. nan At the conclusion of the case for the Crown, defence counsel advised that there were issues of consent and self defence, and that the trial should be adjourned to permit the calling of defence witnesses. The trial was adjourned accordingly. nan For the defence, Derrill Bannerman testified that it was the "little guy", meaning Baikie, who was the more aggressive, and who he says took swing at Lee Zoerb. He says that the "bigger guy", who was Jason Layman, was trying to hold him back. He says he did not see Zoerb hit Baikie. Bannerman was the "d.j." at Uncle Charlie's and the self-proclaimed "eye and ears" for the doorman. He had had about three beers and was not intoxicated. 10 George Villeneuve was at the beer and wine entrance when he says he saw Baikie "taking swing" at Zoerb. He says "Lee (Zoerb) went at him, to restrain him". He says he did not see Zoerb swing. Villeneuve had consumed about three rye-and- cokes and was not intoxicated. 11 Robert Green spoke with Baikie in the washroom one half hour to three-quarters of an hour before the incident. He gathered from the conversation that Baikie had something against Zoerb, and he accordingly warned Zoerb that he should watch out for him. Green says he did not observe the incident, but only the beginning of it, when he says, "they grabbed onto each other", and the "tail-end", when he says he saw "two people falling to the carpet". Green is an AA member and does not drink. 12 Cory Lillis says that he saw Baikie move towards Zoerb and saw Layman intervene. He says that Baikie was trying to push past Layman, that he had started to raise his arm, and that Zoerb then hit him. Lillis said that he tried to restrain Layman and that they fell back down three steps, landing upon Baikie "causing him to be knocked out". He says he did not see any injuries. Lillis says also that he observed the two previous exchanges between Baikie and the accused, which did not develop. He says that punch which Zoerb threw at Baikie was "not that hard", and that he does not know how Baikie sustained the injuries. Lillis had not been drinking on the occasion. 13 The accused testified that he had been warned that some penitentiary employees were out to get revenge upon him for his handling of the incident in October, and that he should "watch his back". On the night in question, Robert Green had told him about the conversation with Baikie in the washroom. He says that when Baikie approached him, he jumped off the d.j. booth and whistled for assistance. He says that Baikie became agitated and aggressive, and that Layman then intervened. He says that Baikie was trying to swing at him over Layman's shoulder, and that Layman then stood out of the way so that he (Baikie) could "get clear shot". He says that Baikie then hit him on the shoulder, and he swung back and hit him on the back of the head. He says that Layman then came at him, that Lillis grabbed him, and that they then fell down the steps onto Baikie. He says he does not think that anything he did caused Baikie's injuries. He was not drinking on the occasion. He says he rarely drinks on the job. 14 The testimony of the three Crown witnesses is consistent, and is corroborated by the actual injuries which Baikie sustained. Bannerman's evidence indicates that Baikie was more aggressive than the Crown witnesses would have us believe, and that he in fact threw punch at the accused. Villeneuve agrees with this observation, while Lillis says only that Baikie was trying to push past Layman and had raised him arm before Zoerb hit him. Green saw the accused and Baikie grab onto each other, and people falling down. The accused says that Baikie was swinging at him over Layman's shoulder. 15 I find the facts to be as stated by the Crownwitnesses, with the qualification that Baikie did indeed attemptto "get at" the accused whilst being restrained by Layman. He may have thrown punch at the accused or attempted to do so, but his efforts were quite ineffectual. I find that in hisinebriated state, he was no threat to the accused, and that theaccused in fact took advantage of the situation to administer abeating to him. find that the accused administered several blows to Baikie, either at the beginning of the altercation, or as he took him out. do not accept the accused's view that Layman was trying to set him up by allowing Baikie "clear shot" at him. Layman was simply attempting to prevent Baikie from getting involved in fight with the accused. Nor do I acceptthe accused's evidence that he threw only one punch, or Lillis'evidence that he and Layman knocked Baikie out by falling onhim. The injuries are simply not consistent with this scenario. 16 I do not accept the argument that the accused wasacting in self defence. Even if he was, he used more force than was necessary. Neither Section 34 or Section 37 of the CriminalCode justifies the assault. find that the accused did assault Jason Baikie and did thereby cause bodily harm to him. I findhim guilty. GOLIATH PROV. CT. J.
The accused, employed as doorman and relief bartender at the time of the altercation, was charged with assault causing bodily harm in which the complainant sustained significant injuries to his head and face. Three crown witnesses and five defence witnesses testified as to the altercation in the bar. HELD: The accused was found guilty. 1)The self-defence argument was not accepted. Neither s.34 or s.37 of the Criminal Code justified the assault. 2)The testimony of the Crown witnesses was accepted. The complainant was no threat to the accused in his inebriated state and the accused took advantage of the situation to administer a beating to him. The injuries were not consistent with the scenario described by the accused and the witnesses.