Supreme Court

R. v. Hagen, 2003 NWTSC 21
Date: 20030409
Docket: S-1-CR-2002000082

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- v -


CHESTER ARTHUR HAGEN


Transcript of the Reasons for Judgment delivered by The Honourable Justice V.A. Schuler, in Yellowknife, in the Northwest Territories, on the 27th day of March, A.D. 2003.


APPEARANCES:

Ms. C. Carrasco:  Counsel for the Crown

Ms. M. Engley:   Counsel for the Defence


Charges under ss. 266 C.C. and 811 C.C.


THE COURT:   Mr. Hagen is charged with common assault and failing to comply with a condition of a recognizance to keep the peace. The fact that he was on the recognizance at the relevant time and the terms of the recognizance were admitted.

The main issue in this case is obviously the credibility of the two main witnesses, Ms. Firth and Mr. Hagen.

I remind myself that the burden of proof is on the Crown and that Mr. Hagen does not have to prove anything or explain the Crown evidence.

First of all, I am going to deal with what I will call the objective evidence, evidence that was not really disputed, and also the facts that I find are established.

Ms. Firth arrived at 10 p.m. at the Yellowknife women's shelter on the day in question. The shelter is a four-minute walk from the apartment she shared with the accused Chester Hagen where the assault is alleged to have occurred. On arrival at the women s shelter, she was noted by the worker there to be shoeless and to appear scared, confused and shaking. It is not clear how long she was with the worker, but I infer it was a few minutes, at least. The worker observed no injuries.

A few minutes later, the worker, having called the police, Constable Leduc arrived. He observed an

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injury to the side of Ms. Firth's face. She was crying, shaking, and seemed to him to be quite fearful. He was with her for five to ten minutes.

A few minutes after that, Constable Varkonyi came along and met with Ms. Firth and observed her to appear scared and also observed various injuries on her.

Among those three witnesses - the women's shelter worker and the two police officers - there is a contradiction as to whether Ms. Firth appeared to have consumed alcohol. The shelter worker said that she smelled alcohol and thought that she had one or two drinks. The police officers smelled no alcohol. Having viewed the videotape of Ms. Firth's statement to Constable Varkonyi, I am satisfied that there is nothing on there in her behaviour or her manner of speaking or otherwise that would indicate that she had been drinking or was under the influence of alcohol.

I prefer the evidence of the two police officers, particularly that of Constable Varkonyi who was with Ms. Firth in a room for half an hour, and from what is on the tape. From Constable Varkonyi's testimony, she took care to assure herself that Ms. Firth was in a condition to give a statement.

The shelter worker said that for her it was a busy night, as usual, and in my view she simply made an error in her observation or her recollection as to

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the alcohol and the lack of injuries.

Those are essentially the objective facts which do not depend on the testimony of the complainant or the accused.

Ms. Firth's statement to Constable Varkonyi was admitted as past recollection recorded.

Her evidence therefore is that Mr. Hagen, her common-law husband of some 20 or 30 years, was drinking in the apartment. They argued. She threw a cup of tea at him. He put a pillow over her face and would not take it away for some time, despite her screaming at him to and asking him not to hurt her. She also said that he hit her and pulled out some of her hair.

I will return to deal with her evidence later.

Mr. Hagen testified that there was an argument, that Ms. Firth threw things at him, that she accused him of drinking, which he said he was not doing in the apartment. She was getting upset. She was screaming. He said he put his arms around her to calm her down so that she would not have one of her seizures. She was trying at some point to get out of his arms. He tossed a couple of cushions at her and said “Scream into that.” He denied hitting her or pulling out her hair or putting the cushion on her face.

He did admit in his evidence that during this she said to him, “Look, you pulled my hair out.” He says

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that he made a joke about her hair being too long, although there is no indication in his evidence as to how the hair would have come out or that he questioned her accusing him of pulling it out at the time.

Mr. Hagen testified that he eventually went into the bedroom to change his shirt because it had tea on it, which she had thrown at him, and that when he came out she had left the apartment. He put this at 9:00 or 9:30 p.m. He said that she had no injuries.

Her evidence was that she had left the apartment after he let her out from the pillow and then she went to the women's shelter.

The defence that is put forward is that anything that Mr. Hagen did was simply to calm down Ms. Firth, or that this is a case of a consensual fight.

Now, as I've said, it is clear that she arrived at 10:00 p.m. at the women's shelter and that she had injuries on her. It was clear from the evidence that the women's shelter is approximately a four-minute walk away from the apartment. So the question obviously that arises is, How did she get the injuries? Mr. Hagen does not have to explain that, of course, but I have to look at what the evidence is and not speculate as to ways that she might have received the injuries if they are not supported in the evidence.

Mr. Hagen asserted that he was not drinking at

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all in the apartment because he was on a peace bond at the time, a condition of which prohibited him from having any contact, directly or indirectly, with Ms. Firth after consuming alcohol. Yet on his own evidence, after drinking on the way to and at his friend's place after Ms. Firth had left the apartment, he returned to the apartment to get her to give him his money from the cheque she had cashed, which obviously would have been contact with her and a breach of the peace bond. So in my view he was not very concerned that day about obeying the peace bond and that casts doubt on his assertion that he was not drinking in the apartment.

When the police arrested Mr. Hagen not long after Ms. Firth arrived at the women's shelter, he was, according to Constable Leduc, whose evidence on this was not disputed and I accept it, Mr. Hagen was quite intoxicated. He admitted to the Constable that he was drunk or half-drunk. He was also sitting on the grass in the rain when the police officer observed him, which I take as evidence of his condition, that he was not thinking clearly. His intoxication is a factor that suggests to me that his evidence is not reliable, his memory of the events is suspect.

I have to say that in listening to him testify, I found his evidence quite rambling and sometimes hard to follow.

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I also note Mr. Hagen's criminal record. The criminal record goes only to credibility. While a criminal record does not necessarily mean that someone is not telling the truth, here is a man whose record spans 40 years and consists of, among many other types of convictions, 12 convictions for breaching various court orders or otherwise not following the direction of the court. So the question that arises is, Can I rely on his oath to tell the truth? I'm not convinced that I can.

Again, I remind myself that there is no burden on Mr. Hagen to prove anything.

For all of the above reasons however, I reject his evidence, I do not find it reliable or believable.

As per the direction of the Supreme Court of Canada in the case of Regina v. W. (D.), I have to ask: Does his evidence raise a reasonable doubt in my mind? The answer to that is no, it does not.

I should note at this point, in my view there is absolutely no evidence at all that would support, even on Mr. Hagen's evidence, the defence of a consensual fight.

Now I turn to the evidence of Ms. Firth. Clearly, there were some problems with her evidence. She was reluctant at first to admit even that she had made the statement to Constable Varkonyi. She does not remember a lot of things that happened. She does

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not remember a lot about the day and the night in question, but she did testify that what she told Constable Varkonyi in the interview was the truth. And, as I said, I found from the videotape that Constable Varkonyi was very careful to ensure that Ms. Firth was in a condition to give the statement and that she was doing so voluntarily. Much of the statement consists of Ms. Firth giving a recitation of what happened without hesitation and without interjection by the police officer. Following that, there were some questions and answers.

In my view, Ms. Firth was clear at the time she was giving the statement. Her story was coherent. While claiming lack of memory about some things, it is interesting that she was quite insistent on other things. I looked to see whether I could find any pattern in that, in other words, whether what she does say she remembers was either wholly in Mr. Hagen's favour or wholly against him. I did not find that there was any pattern. I think she was trying to be truthful to the best of her ability, considering her admitted problems from a head injury and, no doubt, excessive alcohol consumption throughout her life.

She was quite insistent, for example, that she was able to tell, while in the apartment, that Mr. Hagen had been drinking. This is someone she has been with for 20 to 30 years, so she is obviously in a

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position to know that.

I also note that at the preliminary hearing when one of her answers from that hearing was put to her from the transcript, the answer having been recorded that she answered a question saying that he, Mr. Hagen, let her “bleed a little”, she was quite insistent that in fact she had said he let her “breathe a little”.

Again, I question whether this was a selective memory rather than a real memory problem and, having considered it, it does not strike me that way. It strikes me that she has some memory problems, but there are some things she remembers and she was quite adamant that what she told the police was the truth.

Ms. Firth was obviously confused about some things. She was confused about whether she had been drinking on the day in question. She did not remember the letter that was put to her in cross-examination. Although she acknowledged that it contained her handwriting and signature, I note that there was no proof as to whom the letter was sent or who received the letter. There was no evidence of that and no evidence of that from Ms. Firth, who simply recognized her handwriting and signature but did not actually remember writing the letter. The letter contained some contradictions especially in terms of what she threw at Mr. Hagen, but I do not place a lot of

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significance on that. Nor do I place any real significance on the confusion about whether she already suspected Mr. Hagen had been drinking when he arrived at the apartment after buying the lottery tickets.

In her statement to Constable Varkonyi, she used the term that he was “okay” when he got to the apartment. Certainly, I've heard many witnesses in many trials use that term to describe someone who has been drinking but is not drunk or causing problems.

Ms. Firth did agree in cross-examination with the suggestion made by defence counsel that maybe Mr. Hagen was using the pillow to make her stop screaming, but his motive for using the pillow does not affect whether an assault occurred. Certainly on Ms. Firth's evidence, she was telling him to take the pillow away from her.

Now that brings me to Constable Varkonyi's testimony, that in March of this year Ms. Firth told her that she lied in the original statement. That was not put to Ms. Firth so I don't know what her reaction would have been to being asked about that. So that's one thing I have to take into consideration.

On Constable Varkonyi's evidence, Ms. Firth had been drinking at the tine that she said this. She did not want to talk to the Constable. She was angry and thought that she was being arrested by her. It's

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clear to me that Ms. Firth would rather not have been involved in these court proceedings at all, and in all the circumstances I am not going to put any weight on what she said to Constable Varkonyi in March.

The approach that I think I have to take is to ask whether the contradictions, the memory problems, the various things I have referred to, cause me to reject or have doubts about Ms. Firth's evidence as recorded the night of the incident. Having considered this very carefully, I am convinced that, although she may now be confused about some of the details such as what she threw at Mr. Hagen, whether he hit her or punched her, and that she is even willing to speculate that maybe she fell and hurt her hand, although there is no evidence that she did fall, she was not confused about the essentials when she spoke with Constable Varkonyi in the interview that was recorded.

Her demeanour when she arrived at the women's shelter and as described by the worker there and the two police officers in my view is corroborative of her evidence that she had been assaulted.

I am satisfied beyond a reasonable doubt that Mr. Hagen did assault her, causing the injuries described. I find that they argued over his drinking and the things he was saying to her about other women. He put the pillow over her face for some time, maybe not half an hour but for some time in any event. It

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may have been to stop her from screaming. It may have been in retaliation for her throwing things at him. But I find that he did it as she described, that he also hit her and inflicted the other injuries, and that he breached the peace bond by drinking while he was with her in the apartment, thus having contact with her after consuming alcohol. I convict him as charged.


Certified to be a true and accurate transcript, pursuant to Rule 723 and 724 of the Supreme Court Rules of Court.

Annette Wright, RPR, CSR(A)
Court Reporter

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