nan QUEEN’S BENCH FOR SASKATCHEWAN 2011 SKQB 467 Date: 2011 12 16 Docket: N.J. No. 39 of 2011 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and TREVOR WADE MEYERS Counsel: Ryan W. Snyder for the Crown Carson D. Demmans for the defence JUDGMENT DANYLIUK J. December 16, 2011 FACTS [1] Trevor Wade Meyers stands charged with six separate counts: 1. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did knowingly utter a threat to F.M. to cause death to F.M., contrary to Section 264.1(1)(a) of the Criminal Code. 2. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did without lawful authority confine F.M., contrary to Section 279(2) of the Criminal Code. 3. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did in committing an assault on F.W. Cause Bodily Harm to her, contrary to Section 267(b) of the Criminal Code. 4. THAT HE, the said Trevor Wade Meyers on or about the 4th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did commit a sexual assault on F.M., contrary to Section 271 of the Criminal Code. 5. THAT HE, the said Trevor Wade Meyers on or about the 27th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, being at large on his Recognizance entered into before a Justice or a Judge and being bound to comply with a condition thereof, to wit, not to contact or communicate directly or indirectly with F.M., except through a member of the Law Society of Saskatchewan, fail without lawful excuse to comply with that condition, contrary to Section 143(3) of the Criminal Code. 6. THAT HE, the said Trevor Wade Meyers on or about the 26th day of February, A.D. 2011 at or near Regina in the Province of Saskatchewan, did knowingly utter a threat to F.M. to cause death to F.M., contrary to Section 264.1(1)(a) of the Criminal Code. [2] This matter proceeded to trial. The evidence revealed that the defendant and the complainant were co-workers who met on the jobsite, then formed personal relationship. Both were scaffolders, support trade to other trades. The defendant was senior and more experienced in this trade. [3] The complainant, F.M., testified. She is 38 years old. She described how she and the defendant met through work, and began their relationship. She testified to her criminal record, which is dated. The only relevant matter was 1999 conviction for importing cocaine. [4] In early February 2011 the complainant and defendant were both employed at the Rocanville mine. They had four days off and decided to come to Regina. They caught ride, buying and drinking some beer. [5] Once in Regina, the couple checked into hotel. There was more drinking. Later, someone decided to buy some cocaine. The evidence is in dispute as to whose idea this was. Allegedly the complainant “knew someone” and the couple walked considerable distance to make buy, only to come up empty. They trekked back to the hotel, with the complainant falling at least once. [6] Once back at the hotel, there was more drinking. Then they took cab to another location provided by the complainant. The defendant gave her money, and she bought an eight-ball of cocaine for $240.00. The defendant said the complainant had no money, so he paid for absolutely everything on this trip. He had withdrawn $600.00 from an ATM to facilitate the drug buy and associated transport costs. [7] Back at the hotel, the complainant cooked and smoked some cocaine, while the defendant snorted some. Each testified that the other had consumed most of the cocaine. As well, the drinking continued, each saying the other drank more. Eventually, both went to sleep or passed out. There was no cocaine left. [8] Thus ended the first day of holidays. [9] The next day was February 4, 2011. The couple got up and decided to go shopping and drinking. It is difficult to say which activity prevailed. [10] The couple attended at and near the Cornwall Centre. number of items were purchased from several stores. Those of relevance included pair of stiletto-heeled shoes for the complainant and, from nearby adult store, vibrator and some lubricant for total of around $110.00. Interspersed with these purchases were several drinking sessions. The defendant said the complainant consumed many “triple paralyzers”, which the complainant denied. [11] After the love shop purchases, the couple went for sushi, and drank saki, paralyzers and beer. Allegedly the complainant had hankering for more cocaine after the sushi, although she disputes this. The couple walked to another hotel to phone for taxi. While there, more alcohol was consumed. The cab took them to another restaurant, where more off-sale beer was purchased, and the couple retired to their hotel room. The complainant said that by far, the defendant had consumed more liquor. [12] The testimony sharply diverges on subsequent events. The parties agree that at some point, the shopping bag containing the vibrator and lubricant was noted to be missing, and that an argument ensued. [13] The complainant testified that she had disrobed and laid down on the bed. She said the defendant noticed the love shop bag was missing, surmised it had been left in the taxi in error, and became angry. She chuckled at this turn of events. This made the defendant even angrier. He began yelling at her, saying she owed him money for the vibrator and lube. He then began to choke her while she was laying on the bed and he was on top of her. She said she tried to scratch him and push him off, but could not. Desperate, she grabbed his groin and began to squeeze, as he continued to choke her. The defendant punched her face and head repeatedly, telling her to let go. She did, but he kept pounding her with his fists. She tried to leave, but every time the defendant would grab her and throw her back onto the bed. He was screaming at her, saying bad things about her family. He shouted at her that she was “not going anywhere” and that he was going to kill her. He threw towel in her face and told her to “clean her fucking self up”. She tried to phone the taxi company to recover the love shop bag, but could not get through. At this point she said the defendant threw her on the bed. She told him no, but he forced himself on her and they had sexual intercourse. She said she could not fight him off. At one point he grabbed her hair and said, “You’re my wife, do what tell you.” After the sexual act was completed, the defendant passed out. The complainant grabbed her clothes and got out of there, seeking refuge with friends. The police were called days later. [14] The defendant testified, with different version of events. He confirmed the first night of drinking and cocaine use, but said it was the complainant who was the bigger drinker and drug user. He said it was her, not him, who pushed to buy cocaine. He said she had gotten paranoid and suffered from “cocaine psychosis”, believing police car was outside and that there were bugs in her eyes. He went to bed quietly while she stayed in the bathroom doing cocaine. [15] The next morning the defendant woke at 8:30 and found the complainant finishing the cocaine. He gave similar account of the shopping trip, except that he was drinking moderately and the complainant was drinking wildly. He produced banking records which tended to confirm that he had paid for everything. [16] The two accounts diverged markedly when the defendant explained his version of what happened in the hotel room. He said they had few more drinks, then decided to have sex, which was consensual. The defendant said “she was totally into it.” He saw the shopping bags, remembered the shoes, and asked to put them on her. She agreed, and intercourse was resumed. He then thought of the love shop purchase. He asked to use the vibrator on her; she agreed, but he could not find the bag. An argument erupted as to who had the bag last. He says she was on the bed and he was standing beside it when she wanted more cocaine. He said no, so she kicked his leg with her pointy shoe. She then attacked him, one hand clawing his eye and the other squeezing his scrotum. She also hit him in the mouth, chipping his tooth. She then had one hand gripping and twisting his penis, while the other was used to pull and twist his testicles half way to his knees. He could not break her grip so he punched her in the face with his fist, as hard as he could. She transferred both hands to his testicles and pulled. He then hit her in the face with his fist four more times, as hard as he could. He finally was able to pry her hands off, one at time. [17] The defendant got cold wet towel from the bathroom and applied it to his testicles. He wanted her gone. He said the complainant sat calmly on the edge of the bed, smoking, naked except for the shoes, telling him things like “you’ll pay”. He then curled up on the same bed, went into fetal position, and went to sleep. He said he thought someone came and went from the room several times during the night. At 5:00 or 6:00 a.m., he woke up and she was gone. He got up at 8:00 a.m. to soak his testicles in cold water. He noted he had been robbed, that everything except his clothes was missing. He said his glasses had been broken into pieces and left on the night table. He was in shock and pain, so he went to the bar fridge for beer, but they were all gone. He left the hotel for friend’s house to recuperate. [18] It is against this dichotomy of versions of events that must determine whether the defendant is guilty of each charge. [19] Has the Crown proven each element of each offence beyond reasonable doubt? [20] In the course of this consideration, how is the issue of credibility to be resolved? [21] It is easiest to analyze each charge in light of the evidence and the applicable law. Certain facets of the testimony bear closer examination when considering particular charges. [22] However, there are some overarching considerations. First, the resolution of each charge is rooted in R. v. W.(D), 1991 CanLII 93 (SCC), [1991] S.C.R. 742. Where credibility is important in trial, the rules as to reasonable doubt are apposite. Where defendant has testified, the sequence of inquiry ought to be as follows: (a) if the testimony of the defendant is believed, he must be acquitted. (b) even if the defendant’s testimony is not believed but there is still reasonable doubt, the defendant must be acquitted. (c) even if the defendant’s testimony does not give rise to any doubt, the trier of fact must ask whether, on the basis of the evidence which is accepted, the defendant’s guilt has been established beyond reasonable doubt. [23] Also see R. v. McLeod, 2008 SKQB 14 (CanLII), 309 Sask. R. 269 per Foley J. at para. [24] There are concerns with the testimony of the defendant in this case, as follows: (a) Generally, his testimony did not appear forthright. All of his own acts were minimized or justified, and all of the complainant’s acts were aggravated. In comparing the overall demeanor of the two witnesses, the complainant appeared to be more straightforward and direct than the defendant. (b) The defendant is large, very muscular person. While the complainant is not petite, the defendant appeared to exaggerate her strength and physical prowess (while contemporaneously alleging she was severely intoxicated) and very much minimized his own. (c) The defendant insisted the complainant not only consumed most of the cocaine, but was the driving force in obtaining it. As pointed out by the Crown, she had no money. By his own admission, the defendant paid for everything, including the drugs and liquor. The defendant described convoluted series of steps required to buy the drugs. At any time, he could have terminated the cocaine buy, either by simply refusing to participate or by withholding money. On cross-examination, he had no plausible explanation for not doing so. His bank records support the Crown’s position in this regard. (d) His assertion that cocaine affected the complainant’s behaviour on the 4th makes little sense when the drugs were consumed the previous day. Likewise, his repeated assertion that the complainant was in “cocaine psychosis” (his term), and his concern about same, does not explain his reaction to her mental state giving her more liquor. (e) The defendant testified as to previous incidents of bad conduct by the complainant. He said on January 23, 2011, the two of them were catching bus to Rocanville from Regina. He said they had an argument in the bus depot, the complainant struck him in the face, and he suffered broken nose. She ran off. He was bleeding. He called his brother for ride. This incident damages his credibility in two ways. First, he said he sought no medical attention for his broken nose, repeatedly saying, “It was just nose.” Second, his brother Lovell Meyers testified. Lovell confirmed he had picked up the defendant at the bus station. He said the defendant’s face was bleeding from several places, and that his glasses were broken. The defendant had already said it was the complainant who broke his glasses on February 4, and tendered an optician’s receipt dated March 4, 2011 showing replacement. Yet this receipt states it is for lenses, not frames. Further, the defendant’s own witness (his brother) indicated the glasses were broken some 12 days before the defendant says it happened. Rather than bolstering the defendant’s credibility, this testimony damaged same. (f) The defendant testified the damage the complainant had inflicted on his genitalia was debilitating. He missed work, then had to be on light duty in the office for nine days. Yet he sought no medical attention until his boss advised him the police were looking for him, whereupon he obtained paramedic’s report which confirmed bruising and scratching to his groin. This was the evening of February 8, four days later. His explanation was that he “didn’t want doctor touching my nuts more.” He first saw physician some two months after being placed in custody on remand. (g) The defendant is 6'4", over 200 pounds. He is fit, muscular, and imposing figure. When compared to the complainant, his suggestion that it took five punches to her head, as hard as he could, to dislodge the complainant, is implausible. (h) His description of the parties’ behaviour following the altercation defies belief. The photographs of the complainant put in by the Crown graphically depict the damage done to her. Yet the defendant claimed that after the fight she sat on the bed, calmly had couple of cigarettes and drank two-litre wine cooler, and said things to him like, “You fucked up my face, you’re going to pay.” At this point the defendant says he lay down and went to sleep. [25] In short, where conflict exists between the testimony of the complainant and the accused, accept that of the complainant. [26] now turn to consideration of each charge. Sexual Assault [27] Crown counsel, in argument, candidly admitted the evidence on this count was weak. agree. do not believe the defendant’s account, and do not acquit on that basis. Rather, the complainant appeared somewhat confused and uncertain as to the order of events. As with any witness, may accept all, some, or none of her testimony. [28] Taking all of the evidence into account, and even disbelieving the defendant, am left with reasonable doubt as to whether sexual assault occurred. Any such doubt must be resolved in favour of the defendant. [29] I therefore find the defendant not guilty of sexual assault. Unlawful Confinement [30] The complainant swore she tried to flee several times after the melee in the hotel room began. The defendant denies this, insisting that after he had punched her face five times as hard as he could, she sat on the bed calmly smoking and drinking, telling the defendant “you’ll pay”, while the defendant curled up and went to sleep despite having been savagely attacked by her (allegedly unprovoked) minutes earlier. [31] reject unequivocally the defendant’s account, and accept that of the complainant. find as fact that she tried to flee the hotel room several times. find the defendant physically prevented her from doing so each time. [32] On these facts, as found, is the offence of unlawful confinement made out? have considered the following: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.) R. v. V.(C.L.), 2003 SKPC 85 (CanLII), [2003] S.J. No. 374 (QL) R. v. Daniels, 2008 SKQB 349 (CanLII), 321 Sask. R. 40. [33] On these facts it is clear to me the defendant knew the complainant was trying to leave the hotel room, and physically prevented her from doing so on several occasions, against her will. Accordingly, I find the Crown has proven each required element of this offence beyond a reasonable doubt, and I find the defendant guilty of unlawful confinement. Assault Causing Bodily Harm [34] have rejected and do not believe the defendant’s testimony as to how the fight began and unfolded. accept the testimony of the complainant. also have no doubt that the defendant’s punches caused injury to the complainant, including blackened eyes, cut to the brow, and extensive facial bruising and swelling. The evidence also reveals injuries to the legs, arms, hand and lower back of the complainant. find as fact that all were caused by the defendant. There was no serious contest on this point. [35] Prima facie, the offence of assault causing bodily harm has been established. However, the defendant raises self defence. The argument of defence counsel was that the complainant started the fight by grabbing the defendant’s testicles, requiring him to hit her in self defence, using force that was not excessive in these circumstances. [36] Neither counsel clearly delineated which section of the Criminal Code was operative in this case. Defence filed R. v. Couture, 2006 SKPC 37 (CanLII), 277 Sask. R. 101. [37] finding of who initiated or provoked the assault is required to assess which section of the Code applies. The complainant says the defendant attacked her and began choking her, and she grabbed his testicles in defence. The defendant says he did nothing, and she grabbed his testicles in one hand and initially clawed at his eye with the other. Yet he said nothing of any scratches or injury in the area of his eye, nor was anything like that noted by the paramedic at the Rocanville mine. [38] Accordingly, the defendant cannot invoke s. 34(1) of the Code. The defendant was not unlawfully assaulted by the complainant. The defendant initiated the attack by choking the complainant. Alternatively, the defendant provoked the assault by the complainant. [39] Yet further, s. 34(1) requires that an accused not intend his use of force to cause death or grievous bodily harm. That is not the case here. In Couture, supra, cited by the defence, Kovatch P.C.J. found that an accused who was strong and who hit the victim twice in the face was, at the very least, reckless in his use of force. Here, the defendant (by his own admission) struck the complainant with a closed fist five times as hard as he could. He is very large, muscular man. Applying the rationale in Couture, the defendant either intended to cause grievous bodily harm or was reckless in the application of force. [40] Finally, s. 34(1) requires that the force used by the defendant not be excessive, and be proportionate to the force applied to him. While there is no requirement that the defendant measure his force to a nicety, here the force used was excessive. [41] Section 34(1) does not avail the defendant in this case, whether the defendant or the complainant was the initial attacker. [42] While only s. 34(1) was relied upon by the defence, also instructed myself as to ss. 35 and 37. On the facts as found, none of these avails the defendant. [43] In this case, the elements required for self defence are not present. I find the defendant guilty of assault causing bodily harm. Threat February 4, 2011 [44] This allegation deals with the events at the hotel on February 4, 2011. The complainant’s testimony in this regard was clear and unequivocal. When she tried to leave the hotel room and the defendant prevented her, he said “you’re not going anywhere” and “I’m going to kill you.” In his testimony, the defendant failed to deal clearly with this allegation. [45] have no doubt the Crown has established all the elements of this offence beyond reasonable doubt. I find as a fact that during the events at the Coachman Hotel in Regina on February 4, 2011, the defendant threatened to kill the complainant, and the defendant is guilty of this charge. Threat February 26, 2011 Breach of Recognizance February 27, 2011 [46] These two charges logically should be dealt with together. [47] The complainant testified that she kept in touch with the investigating officer, Cst. Claude. She said he had advised her via telephone that charges were pending against the defendant but he had not been arrested as he was back in Rocanville. During this time, the defendant telephoned the complainant, saying, “Don’t show up at the fucking trial, watch your back, I’m going to fucking kill you.” He threatened to come to her residence, prompting her to lock her door. Then, after he was arrested and released, he phoned her again and threatened her in similar fashion. The complainant pressed *57 on her phone to trace the call back, but it came up “restricted”. [48] On cross-examination, it was established that the complainant’s testimony about these threats (“I’ll fucking kill you”) was consistent with prior statements and testimony. She was clear that the threat was to kill her, and was made by the complainant. [49] While the complainant recalled the general time frame but not the exact date, Cst. David Adams of the Regina Police Service testified that he attended at the complainant’s residence February 26 and 27, 2011 pertaining to her complaints of death threats by the defendant via telephone. The exact dates are established by him. The defendant had entered into recognizance February 25, 2011 (Exhibit P-1 in this trial). [50] The defendant denied contacting or threatening the complainant on either occasion. [51] I do not believe the defendant and do not accept his testimony and denial. Further, his testimony does not even raise doubt as to these occurrences. Finally, looking at the complainant’s evidence and that of Cst. Adams (both of which I accept) and upon weighing the totality of the evidence, I am not left with any doubt as to the guilt of the defendant on these two charges, and I find him guilty. CONCLUSION [52] I have found the defendant, Trevor Wade Meyers, not guilty of sexual assault but guilty of five charges, being assault causing bodily harm, unlawful confinement, two counts of uttering death threats, and breaching his recognizance. Again, have to say that after careful weighing and assessment of all the evidence, have no doubt of his guilt of these five charges. [53] Counsel may now speak to sentence. J. R.W. DANYLIUK
The complainant and the accused were in relationship and came to Regina where they stayed in hotel, drank, consumed cocaine and shopped. An argument ensued about missing shopping bag. The accused was charged with two counts of uttering death threats to the complainant; unlawfully confining the complainant; assault causing bodily harm on the complainant; committing sexual assault on the complainant; breach of recognizance in having contact with the complainant. At trial, both the complainant and the accused testified as to what transpired during the argument that resulted in the charges. HELD: 1) The accused was found not guilty of sexual assault. 2) The accused was found guilty of unlawful confinement. 3) The accused was found guilty of assault causing bodily harm. The Court did not accept the accused's invoking of self-defence pursuant to s. 34(1) of the Criminal Code. The accused admitted to striking the complainant with a closed fist five times as hard as he could and the force used was excessive. 4) The accused was found guilty of threatening to kill the complainant at the hotel. 5) The accused was found guilty of uttering death threats and breach of recognizance by contacting the complainant. The Court did not accept his testimony and denial.