Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The incident occurred on the September 30, 2001 when the Appellant and Christine Gendreau and her boyfriend, Robert MacDonald Forrest went to the residence of the complainant Sherry Colville. Sherry Colville's boyfriend, the complainant Ken Howg, was present with her at the residence. The Appellant and his friends brought liquor and were invited into the residence upon their arrival. All the parties knew one another. Although there were conflicts between the theory of the Crown and the theory of the defence as well as conflicts in certain portions of the evidence given at trial, there were a number of uncontested facts. There was no issue but that some animus existed between the Appellant and Colville arising out what was termed a failed business relationship.

Howg testified that at some time between 8 and 9 a.m., the Appellant, Forrest and Gendreau arrived at Colville's residence. When Colville appeared, the Appellant punched him hard in the area of his nose causing a severe nose bleed. Concurrent with this blow, Howg said he heard the Appellant instruct Gendreau to get a bat and "do her" referring to Colville. Colville testified she was on the couch trying to protect herself, but she took quite a lot of damage to her body from the blows. Colville and Howg testified to the Appellant striking Howg on the shoulder and above both knees with the bat. Both Howg and Colville said that after the assaultive behaviour ended, the Appellant voiced threats of possible harm to relatives of the complainants if the complainants reported the incident to the police. Howg and Colville sought assistance of friends.

The Appellant was arrested and charged soon after September 30, but Forrest and Gendreau were not apprehended until December. The Appellant was tried separately. Forrest and Gendreau were called as defence witnesses by the Appellant. Their evidence was very different from the version of events testified to by Howg and Colville. The serious injuries of Colville and the blunt trauma injuries suffered by Howg were wholly unaccounted for in the narrative of events testified to by Forrest and Gendreau.

The trial judge convicted the Appellant of aggravated assault of Colville and assault causing bodily harm of Howg as well as the offence of uttering threats against the complainants and their families. The charges of using a weapon in assaulting the complainants were stayed on the basis that they overlapped with the offences of which he was convicted. On appeal, the Appellant applied to admit the transcripts of the proceeding against Forrest and Gendreau in which the complainants gave evidence. In response, the Respondent filed a motion to introduce into evidence statements given to the police by the two complainants. The majority of the Court of Appeal found that the core narrative of events did not vary and allowed this evidence from the later proceedings to be received, but a consideration of this evidence did not afford any basis for the allowance of the appeal and dismissed the appeal. Hollinrake J.A. dissenting would have admitted the fresh evidence, allowed the appeal and ordered a new trial on the basis that the cumulative effect of the fresh evidence and misapprehension of portions of the evidence by the trial judge resulted in an unfair trial and a miscarriage of justice.