nan 2004 SKQB 388 Q.B.C. A.D. 2003 No. 30 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HER MAJESTY THE QUEEN and WALLACE ELROY WATETCH Jefferey D. Kalmakoff for the Crown Darren W. Winegarden for the accused JUDGMENT SCHEIBEL J. September 24, 2004 [1] The accused is charged that he did: 1. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan ... endanger the life of Marie Louise Bear by attempting to strike her with a motor vehicle, thereby committing aggravated assault, contrary to Section 268 of the Criminal Code. 2. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan in committing an assault on Marie Louise Bear cause bodily harm to her, contrary to Section 267(b) of the Criminal Code. 3. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan operate a motor vehicle in a manner dangerous to the public, contrary to Section 249(1)(a) of the Criminal Code. 4. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan commit an assault on Darnell Noltcho, contrary to Section 266(a) of the Criminal Code. 5. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan commit an assault on Conlee Kahpeaysewat, contrary to Section 266(a) of the Criminal Code. [2] The accused and the complainant Marie Louise Bear have lived together for approximately 18 months in common law relationship in Fort Qu’Appelle, Saskatchewan. On the day in question they went out together to play bingo, then played pool, had few bottles of beer and then went to house party after purchasing six pack of beer and some marijuana. [3] The complainant, Bear, drove her truck, to the party and on arrival at the house party the accused asked Bear for her keys to the vehicle because he did not want her to drive because she had been drinking. [4] Prior to leaving the party Bear reached into the accused’s pocket to retrieve her keys—this was the beginning of the confrontation between the accused and Bear. Eventually the accused, who did not have driver’s license and had consumed about the same amount of alcohol, drove the complainant’s truck to her home. [5] The complainant Bear testified that, while she does not remember everything, the accused got upset with Bear. She claims when they arrived at her house she was scared of the accused and tried to leave in her truck. She stated that while she was attempting to start the truck the accused caught her, pulled her out of the truck, pushed her down twice and kicked her in the head. Both parties were pushing each other and the complainant states she was trying to defend herself from the blows of the accused. She claims she fell down and the accused fell on top of her. [6] During the course of events the complainant received numerous bruises, cut tongue, swollen face, and broken nose. She claims, after she had been struck, that she had no memory of the events and ended up at the hospital. [7] Darnell Noltcho is the 16 year old daughter of the complainant. She was living at Bear’s house with her 22 month old child. She went to bed about 2:00 a.m. and the accused and Bear were not home. At approximately 4:00 a.m. Darnell heard voices and got up. She saw the accused and Bear talking outside of the Bear residence and said it appeared that they were not getting along. She claims the accused was angry and that her mom was trying to talk with him. [8] According to Darnell, the accused and Bear came into the house and shortly after Bear was attempting to leave, the accused grabbed her by the wrist. She was able to get outside and was pursued by the accused. Darnell claims they were fighting and that the accused was choking Bear with both his hands on her neck. The struggle continued as Darnell went to the bedroom to wake her boyfriend Conlee Kahpeaysewat to get him to stop the fight. [9] When Darnell and Conlee came back to the kitchen Darnell saw her mom on the ground and not moving. She claims her mother was knocked out and had blood on her face and nose. She claims when she tried to assist her mom the accused told Darnell to leave her alone. [10] She claims the accused then got into the truck, backed it up and then started coming forward toward Darnell and Bear with the tires screeching. While Darnell was attempting to get her mother into the house her mom fell off the second step of the stairs leading to the back door and hit her head on the cement. She claims that her mother would have probably been run over if they had not moved. The truck smashed into the garage at the rear of the house. Darnell said the accused got out of the truck and that her mother was on her back and the accused walked toward her mother and kicked her hard in the head, like kick to soccer ball. [11] She testified that she told the accused to leave her mother alone and the accused asked her if she wanted to fight with him. The accused then pushed her in her jaw with his hands and she went inside the house to use the phone to call the police and she alleges the accused ripped the phone cord off and then left in Bear’s truck and she called the police on the cell phone. [12] In cross-examination Darnell admitted she did not remember some of the events of the evening and was uncertain about whether or not the accused was choking her mother. [13] After Darnell woke Conlee up they went to the kitchen window and Conlee testified he could hear the accused hitting something or someone and saw the accused’s hand go back and forth in swinging motion and concluded the accused was hitting the complainant Bear. He then saw the accused kick Bear when she was down. [14] When Conlee was standing on the back step he saw the accused get into the truck and back it up as far out as the street and then come forward toward the house where Bear was lying on her back. He said the accused backed up the truck and came forward more than once. He claims the truck’s engine was loud and the vehicle was going little faster than it should have been. After the vehicle missed Bear and Darnell it struck the garage causing considerable damage to it. The accused got out of the truck and once again kicked Bear while she was laying down. [15] He said that Darnell yelled at the accused and then he saw the accused push Darnell and when Conlee yelled at the accused the accused came at him and hit him on the cheek with closed fist. Conlee claims he backed into the house and fell into the closet and the accused came at him and started hitting him with his fist. He said Darnell was trying to call the police and when he got out of the closet the accused was holding the phone cord in his hands. [16] Conlee said that when Darnell was attempting to get her mother into the house that Bear fell face first onto the concrete driveway. [17] Conlee stated that he did see Bear fight back when the accused struck her and that neither he nor Darnell fought back when struck. [18] The accused admits both he and Bear were drinking and claims Bear had four to seven beer and that he consumed four or five. He also admits purchasing one gram of marijuana and that one joint was smoked. [19] The accused claims he grabbed Bear’s wrist when they arrived at her home to prevent her from driving because she wanted to leave and he thought she was too drunk to drive. He claims consensual fight broke out and that both fell to the ground. [20] He admits he was drunk and that he threw couple of kicks blindly at Bear. He claims that after Darnell told him to leave Bear alone, he walked to the truck to leave—he indicated the truck backed up and then came forward—he claims he thought the truck was in reverse when it went forward. He says he struck the garage and then panicked and thought of just getting out of there and got in the truck and left. [21] It is the position of the accused that there was consensual fight and that the injuries sustained by Bear were occasioned by her fall on the concrete and by Darnell stepping on Bear’s face when she was helping her mother get up and both fell back. [22] The accused claims he never touched Darnell or Conlee. [23] The onus on the Crown, in criminal trial, is to prove the guilt of the accused on each count beyond reasonable doubt, failing which the accused must be found not guilty. [24] In this case the accused has testified. Therefore, if believe the evidence of the accused, must acquit him. If, after careful consideration of all of the evidence am unable to decide who to believe, must acquit the accused. Even if do not believe the accused but am left in reasonable doubt by his evidence must acquit the accused. [25] If am not in doubt about the evidence must still ask myself whether am convinced beyond reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which accept. [26] In assessing the evidence it must be noted that while Bear and the accused had been drinking and smoking pot, neither Darnell nor Conlee had consumed alcohol and were asleep at the outset of the confrontation. Their evidence confirms, in large measure, that of Bear. Even though Darnell retracted some of her evidence during cross-examination, her evidence is consistent with the events as outlined by other evidence. [27] Conlee’s evidence was not seriously affected by cross-examination and is, for the most part, accepted as an accurate account of the events as they unfolded. [28] The accused’s evidence was seriously attacked on cross-examination and on several occasions gave evidence which differed substantially from his previous statement to the RCMP. He claims his memory is better now than it was on August 21, 2003 and that he was not given time to think when he gave the statement to the police. [29] did not find the evidence of the accused to be credible where it is in conflict with the evidence given by Bear, Darnell and Conlee. [30] His claim is that the injuries to Bear were accidental and the result of intervening events. There is no doubt that some of the bruises sustained by Bear may have resulted from her fall on the concrete driveway and some may have been occasioned by Darnell when she accidentally stepped on her mother’s face while attempting to get her up and into the house. However, close examination of the photographs in exhibit P-2 demonstrates whole series of bruises and cuts, the combination of which together with the evidence, points to kicks and blows inflicted by the accused. While some of the bruises may be attributed to Bear’s fall and by Darnell stepping on her face, not all of the bruises can be explained in this fashion. [31] With respect to Count No. that the accused did endanger the life of Bear by attempting to strike her with motor vehicle, there is evidence that the accused did drive the truck dangerously close to Bear and Darnell while Bear was laying on the driveway. There is evidence that the accused backed up the truck and came forward on more than one occasion and that the accused barely missed hitting Bear and Darnell. There is also the evidence of Laurel Brown who heard squealing tires and spoke of the driver of the truck hitting the gas and then the brakes several times. [32] Exhibit P-4, photograph No. shows what appears to be tire marks on the driveway which may be consistent with the evidence give by Brown, however there is no evidence which indicates when the marks got on the driveway and no proof that they were occasioned by the accused’s driving. Therefore, the evidence of tire marks on the driveway cannot be accepted as having any impact on this case nor is it suggested by the Crown that they should. [33] In order to convict the accused of this charge the Crown must prove both the mens rea and actus reus. The criminality of the misconduct lies mainly in the intention of the accused. I have strong suspicions that the accused did intend to strike Bear with the vehicle. However, I cannot convict on suspicion and I am left with a reasonable doubt about the intention of the accused. In my view, the Crown has failed to prove the guilt of the accused on this count to my satisfaction beyond reasonable doubt and must find the accused not guilty of Count No. 1. [34] With respect to Count No. 2, do not accept that there was consensual fight between the accused and Bear. There is no doubt that bodily harm was caused to Bear. The accused admits he slung Bear on the ground and that he got more aggressive and kicked Bear on two occasions. The evidence that the accused assaulted Bear and in doing so caused her bodily harm is overwhelming. Therefore, I find the accused guilty as charged on this count. [35] Count No. raises the issue of whether the accused operated motor vehicle in manner dangerous to the public. [36] Section 249(1) of the Criminal Code provides: 249(1) Every one commits an offence who operates (a) motor vehicle in manner which is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at that time is or might reasonably be expected to be at that place. [37] There is no doubt the truck is a motor vehicle and there is no doubt the accused was operating it. Similarly, there is no doubt that the accused drove the truck toward Bear who was lying on the concrete and Darnell who was assisting Bear. [38] It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. The offence is proved where the Crown establishes that the driving complained of was dangerous to the public. The offence requires a marked departure from prudent conduct. [39] Given the evidence which I accept, the accused operated the motor vehicle in a manner dangerous to the public and the Crown has proven each and every ingredient of this offence to my satisfaction beyond a reasonable doubt and I find the accused guilty of this charge. [40] accept the evidence of Darnell and that of Conlee with respect to Counts No. and of the indictment. Conversely do not accept the evidence of the accused that he did not strike both Darnell and Conlee. On the evidence, the Crown has proven the guilt of the accused to my satisfaction beyond a reasonable doubt on both Counts No. 4 and 5 and therefore I find the accused guilty as charged on those counts.
The accused was charged with aggravated assault contrary to s. 268 of the Criminal Code; assault causing bodily harm contrary to s. 267(b) of the Code; dangerous driving contrary to s. 249(1)(a) of the Code; and two counts of assault contrary to s. 266(a) of the Code. HELD: 1) On the charge that the accused endangered the life of the complainant by attempting to strike her with a motor vehicle, the Court had strong suspicions that the accused did intend to strike the complainant with the vehicle but could not convict. 2) There was no doubt that bodily harm was caused to the complainant. The accused admits he slung her on the ground and kicked her and, as a result, the court find the accused guilty of assault causing bodily harm. 3) There is no doubt that the accused was operating a truck and that he drove it toward the complainant, who was lying on the concrete, and her daughter. It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. The offence is proved where the Crown establishes that the driving complained of was dangerous to the public. The offence requires a marked departure from prudent conduct. The offence of dangerous driving was established and the accused was found guilty. 4) The accused was found guilty of two counts of assault.