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R. v. Alferink

Case Name:

R. v. Alferink 

Between

Her Majesty the Queen, and

Robert Alferink

[2001] O.J. No. 5909

Court File No. 89-0336

 

Ontario Superior Court of Justice

Hamilton, Ontario

Philp J.

Oral judgment: May 15, 2001.

(38 paras.)

Criminal law — Offences against person and reputation — Assaults — Assault with a weapon — Assault causing bodily harm — Defence, self-defence — Evidence and witnesses — Burden of proof — Respecting defences.

Trial of Alferink on charges of assault with a weapon and assault causing bodily harm. Alferink was a carpet repairman. He went to the complainant’s apartment to repair some carpet. Both Alferink and the complainant sustained injuries and alleged that the other started the fight between them. The complainant was 77 years old. Alferink was 21 years old. The complainant was unable to testify at the trial because of his health. His preliminary hearing testimony was read into evidence. He testified that Alferink struck him over the head with a carpet stretcher. Alferink admitted hitting the complainant but pleaded self-defence. He denied striking the complainant with the stretcher. Both parties had criminal records. Following Alferink’s committal for trial, he left the jurisdiction for several years until he was apprehended.

HELD: Alferink was acquitted of the charge. Each of the parties assaulted each other. The injuries sustained by the complainant were not as serious as they would have been if he was struck by a carpet stretcher, but Alferink’s flight raised an inference of guilt. The Crown could not prove beyond a reasonable doubt that the defence of self-defence was not a valid defence.

Statutes, Regulations and Rules Cited:

Criminal Code, s. 34(1).

Counsel:

F. Zeidman, for the Crown.

J. Penman, for Robert Alferink.

1     PHILP J. (orally):– The accused is charged with assault with a weapon and assault causing bodily harm. The two counts arise out of the same event. His defence is self-defence.

2     On January 13, 1989, the accused, a carpet repairman, was sent to the apartment of the complainant Hugh O’Neil to repair a carpet recently laid. What followed when they met in Mr. O’Neil’s apartment is difficult to determine accurately because their evidence is so conflicting. Each says the other first struck him. Both sustained injuries, mainly in the facial area. None was life-threatened.

3     Mr. O’Neil was 77 at the time of the incident. He was five-foot-three inches tall and of medium to heavy build. He was extremely upset because of the poor workmanship in the laying of his new living room carpet and the delay in repairing the defect. Mr. Alferink was 21 years old and about six-feet-one inches, weighing about 110 to 115 pounds at the time, he testified. He was a sub-contractor hired by Alexanian Carpets to repair Mr. O’Neil’s carpet.

4     Mr. O’Neil was unable to testify at the trial because he is now 89 years of age and is too frail and lacked any memory of the incident and any other events.

5     I ruled during a pre-trial application after seeing and hearing his attempt to testify, that he was incapable of giving evidence at this time. I accordingly ruled that his testimony given at the preliminary hearing could be read in as his evidence at the trial. I was satisfied that it was necessary in view of his present condition, and the evidence was reliable because it was under oath and subject to cross-examination.

6     His evidence at the preliminary hearing was that Mr. Alferink came to the apartment door and said, “I’m the carpet guy. What’s wrong with your carpet?” Mr. O’Neil replied, “Didn’t your boss tell you what to do?”, to which Mr. Alferink replied, “I’ve got no boss.” Mr. O’Neil testified that Mr. Alferink telephoned somebody and then said to Mr. O’Neil, “I’m my own boss and I’m not taking anything off of you, you old bastard” then hit him over the head with the carpet stretcher.

7     Mr. Alferink, on the other hand, testified that when he got to the building, he called the apartment by intercom and told the occupant who he was. He testified that Mr. O’Neill replied in an angry voice, “Yeah, yeah” and then let him in. Mr. Alferink said he was there to fix his carpet. He set his tools down and asked what did he want him to do. He told Mr. O’Neil that he had to ask the customer what was to be done. Mr. Alferink said that Mr. O’Neil was upset, walking around and was not in a good mood.

8     Mr. Alferink called Alexanian’s for advice and then handed the phone to Mr. O’Neil, who he said hemmed and hawed and then hung up the phone. He swore and was pacing back and forth, Mr. Alferink said, and he got scared and told Mr. O’Neil that he was going back to the store. As he bent down for his tool case and carpet stretcher, Mr. O’Neil came at him and his knee caught him in the face. Mr. Alferink grabbed his tools to leave, the tool-box in one hand and carpet stretcher in the other.

9     Mr. O’Neil grabbed his sweater with both hands and pulled him down so that Mr. O’Neil’s cheekbone hit Mr. Alferink’s nose. Mr. Alferink said he fell down and got up, and he did it again two or three times. Mr. Alferink testified that he grabbed his tools and left. Mr. O’Neil ran after him into the hall and tackled him, and he fell onto his tools. Mr. O’Neil yelled, “Help, police.” Mr. Alferink said he panicked and pushed him back into his apartment and onto a couch, and he landed on a table.

10     He got up fast and pulled Mr. Alferink down, and pressed his thumb against Mr. Alferink’s throat and held him down. Mr. Alferink hit him on top of the head with a closed fist, and Mr. O’Neil choked him harder in the throat. Mr. Alferink panicked and he hit him twice with his fist. Mr. O’Neil was dazed and Mr. Alferink left the apartment. He said he never hit him with the carpet stretcher.

11     The carpet stretcher was described as being an instrument that is 18 inches to 24 inches long. At one end of a two inch thick, solid steel bar was a solid cushion for the knees of the carpet stretcher to hit. The other end was a flat surface with spikes about one inch long, inter-mingled with thin bristles about five millimetres in length. The instrument weighed 10 to 15 pounds, according to Mr. Alferink.

12     There is no doubt in my mind that each protagonist struck the other, thereby committing an unlawful assault both causing bodily harm to the other.

13     The defence of Mr. Alferink is self-defence. Section 34(1) of the Criminal Code reads as follows:

“Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.”

14     I must consider all the evidence, and if I am convinced beyond a reasonable doubt that one or more of these ingredients was not present, then self-defence is not available to Mr. Alferink. The four ingredients that must be proven are as follows:

      • Mr. O’Neil unlawfully assaulted Mr. Alferink.
      • Mr. Alferink did not provoke the assault by Mr. O’Neil.
      • The force used by Mr. Alferink was not intended to cause death or grievous bodily harm to Mr. O’Neil.
      • The force used by Mr. Alferink was no more than was necessary to enable Mr. Alferink to defend himself.

15     If I accept the evidence of Mr. O’Neil, then I might conclude that he did not unlawfully assault Mr. Alferink. If I accept the evidence of Mr. Alferink, then I might conclude that Mr. O’Neil did unlawfully assault him. If Mr. Alferink hit Mr. O’Neil with his carpet stretcher as testified by Mr. O’Neil, then I might conclude that he used force that was intended to cause grievous bodily harm to Mr. O’Neil.

16     As well, I might then conclude on the fourth ingredient, that the force used by Mr. Alferink was more than was necessary for him to defend himself. On the other hand, if I accept the evidence of Mr. Alferink, then I might conclude that he did not strike Mr. O’Neil with the carpet stretcher.

17     In my view, the evidence does not convince me that the injuries sustained by Mr. O’Neil were as serious as they would have been if he was struck in the face by the ten to 15 pound carpet stretcher.

18     No photographs of the injuries were produced by the Crown, although they were taken and were available for the preliminary hearing. The evidence is left to the recollection of the police officers who investigated, assisted by their notes. Officer Leng could only testify as to the injuries of Mr. Alferink (he had decidedly swollen lips).

19     Officer Pearson testified that Mr. O’Neil had severe injury to the left area of the side of his face. He saw blood and a swollen lip. He appeared to have an injury to his left eye. It was swollen shut, as he recalled from photographs. He did not see blood on the carpet stretcher and he did not seize it.

20     In cross-examination, Officer Pearson admitted that the injuries he had recalled were not in his original notes. He also testified in cross-examination that he noted that Mr. Alferink had a swollen lip, scratches on his neck and blood on his sweater.

21     Officer James testified that Mr. O’Neil had significant injuries to his face and head. She had met him at the hospital on the morning of January the 13, and noted a severely swollen left eye and could be a broken nose. She testified that she saw little dot marks on his face from the carpet stretcher. She admitted that she made no notes on that part, nor was it stated in the will-say statement. She found him not frail and had no problem walking.

22     I do not accept Officer James’ evidence on the little dot on his face. There was no note made by her of these. If she had considered them important, she would have written it in her notes. At the time, she had only been employed by the police for two weeks. There was no mention of little dots from any other source, including the hospital records, which were filed, and the evidence of the other police officer.

23     If Mr. O’Neil had been hit by the carpet stretcher, there would have been much more serious injuries, including possible death. Hospital records indicate that he was in the emergency room for about two hours and then discharged. Dr. Howarth, the emergency physician who saw Mr. O’Neil on the morning of January 13 observed that he was bleeding from his nose and mouth, but only a small amount of blood oozing from his wounds at this time.

24     He had a one centimetre laceration on his inner upper lip and another one below his left eye, approximately 1.5 centimetres in length with considerable bruising and swelling of the soft tissues below and lateral to his left eye. The patient’s nose was quite swollen on the left side and there may have been a deviation to the right side of his face. Radiographs of the chest, facial and nasal bones were all negative for fractures.

25     He cleaned the patient’s wounds on his cheek and lip and applied a steri-strip to hold the edges together. His prescription was the use of ice packs and passage of time. In his opinion, the injuries would be uncomfortable for a number of weeks; two to three. The lip would be unlikely to scar and was inside the mouth, in any case. Laceration of his cheek would likely heal with a small scar. Once the swelling had subsided, he expected the patient’s nose would return to its pre-traumatic appearance.

26     He felt that it would probably take three to six weeks until this patient was symptom-free. Mr. O’Neil was admitted to the Henderson General Hospital again on January 25 to January 31 for observation. An EEG was done, which was normal. The specialist, neurologist or neurosurgeon I believe, Dr. Savelli, felt that Mr. O’Neil had suffered from post-traumatic syndrome and was making a good recovery.

27     He may also have suffered a slight concussion. His gait, which he had initially had some problems with, improved significantly in the hospital. He really had no evidence of ataxia at the time of discharge.

28     A word about the criminal convictions of both parties. These convictions can be used only on the issue of credibility and not to determine guilt.

29     Mr. Alferink has several convictions all arising out of one event which occurred sometime prior to the date of the convictions, which was March 17, 2000. The convictions were sexual assault, sentenced four years; aggravated sexual assault, sentenced ten years consecutive; kidnapping, ten years concurrent, and five lesser convictions, each for one year concurrent.

30     At the time of the altercation of January 13, 1989 before me, he had up to then no convictions and has none since until this one event which resulted in the above convictions and sentencing. In my view, this very serious record from March 19, 2000, does not help me in determining what happened in 1989, in terms of credibility.

31     The same might be said of the record of Mr. O’Neil. On July 14, 1995, he was convicted of assault level one, summarily, and received a suspended sentence and 12 months probation. An occurrence report filed, dated June 2, 1997, indicated an alleged assault in the senior’s building in which he was then living. The elderly victim did not want charges laid, and apparently Mr. O’Neil admitted hitting her and was very upset and sorry. He was then 85 years of age.

32     These events do not affect my determination of credibility in this action.

33     A word about after the fact evidence or post offence evidence.

34     Mr. Alferink testified that following the preliminary hearing when he was committed for trial, he said he panicked and was afraid of the horror stories he had heard, and assumed he would lose and so he ran. He travelled out West working as a carpet man for several years, and was eventually apprehended on the charges before me at a date unknown to me. This evidence of the flight taken by Mr. Alferink following the preliminary hearing can at best only raise an inference as to his guilt or innocence.

35     He has admitted he struck Mr. O’Neil, but only in self-defence and not to cause serious injury. The inference, in my view, cannot be drawn that he ran because of that assault, nor for anything more serious, in my view.

36     In considering the guilt or innocence of Mr. Alferink, I must consider all the evidence to determine the issue of credibility. The burden of proof is upon the Crown to prove beyond a reasonable doubt that the defence of self-defence is not a valid defence. I must consider the issue on the following basis:

37     If I believe the testimony of the accused, I must acquit. If I do not believe the testimony of the accused, but I am left in a reasonable doubt about it, I must acquit. Even if I am not left in doubt by the testimony of the accused, I must ask myself whether on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. If after careful consideration of all the evidence, I am unable to decide whom to believe, I must acquit.

38     On that basis and having considered all of the evidence, I must, in this case, find Mr. Alferink not guilty.

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