R. v. Bear (C.W.), (2011) 267 Man.R.(2d) 291 (QB)

• Judge: McCawley, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 09, 2011
• Jurisdiction: Manitoba
• Citations: (2011), 267 Man.R.(2d) 291 (QB);2011 MBQB 191

R. v. Bear (C.W.) (2011), 267 Man.R.(2d) 291 (QB)

MLB headnote and full text

Temp. Cite: [2011] Man.R.(2d) TBEd. SE.012

Her Majesty The Queen v. Clifford Wayne Bear (accused)

(CR 10-01-30492; 2011 MBQB 191)

Indexed As: R. v. Bear (C.W.)

Manitoba Court of Queen's Bench

Winnipeg Centre

McCawley, J.

August 9, 2011.

Summary:

The accused was charged with one count of theft (count 1) and two counts of assault (counts 2 and 3) respecting an incident at a store. He was also charged with one count of uttering threats (count 4) and one count of aggravated assault of a peace officer engaged in the execution of his duty for spitting in a police officer's face at the police station following the incident at the store (count 5). The accused was HIV positive.

The Manitoba Court of Queen's Bench convicted the accused of counts 1, 2 and 3. Count 4 was withdrawn. As to count 5, the court held that the Crown failed to prove the offence of aggravated assault beyond a reasonable doubt, but convicted the accused of assault.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise. In this case the court ordered a ban on the complainant's identity under s. 486.4 of the Criminal Code.

Criminal Law - Topic 1415

Assaults - Aggravated assault - The accused was arrested by police - He had a number of cuts, including on his lip - While in the police car, he commented about HIV/Aids and spitting - Police put a spit sock on him - At the station he was placed in a cell - When police went to check on him, he was hidden and not responding to their calls or knocking - When an officer opened the door, the accused lifted his spit sock and spit in the officer's face, allegedly to infect the officer with HIV - Thus saliva, possibly mixed with blood, went into the officer's eyes - The officer took preventative treatment for 28 days - His HIV tests were negative - The accused was charged with aggravated assault (Criminal Code, s. 268(1)) - The Manitoba Court of Queen's Bench, considering his viral load and following the rationale laid down in R. v. Mabior (Man. C.A. 2010), and the clear pronouncement that elimination of risk was not the test, found that the Crown had not established beyond a reasonable doubt that the risk of serious bodily harm was significant - Aggravated assault was therefore not proven - The court, however, convicted the accused of assault - See paragraphs 36 to 70.

Criminal Law - Topic 4270

Procedure - Indictment - Amendment - General - The accused, who was HIV positive, spit in a police officer's face in an attempt to infect him with the virus - The charge, which was amended at the outset of trial, by consent, alleged that on August 13, 2009, the accused "committed aggravated assault on ... a peace officer engaged in the execution of his duty " (amendment underlined) - After the Crown closed her case, defence counsel argued for the first time that the charge was a nullity - He claimed that the offence of aggravated assault against a police officer (Criminal Code, s. 270.02) came into effect after August 13, 2009 - The Manitoba Court of Queen's Bench noted that no motion to quash the charge was pursued, nor was leave sought, as required by s. 601(1) of the Code, rather the argument was simply advanced after eight days of trial - The court opined that had the motion been properly brought it would have dismissed it as the charge was not a nullity - The Crown actually proceeded under s. 268 (aggravated assault) which was clear from the cover page of the indictments and from the pre-trial memorandum - Defence was not taken by surprise - The amendment simply added further specificity to the charge - The amendment did not change the nature of the allegedly culpable conduct - See paragraphs 25 to 36.

Criminal Law - Topic 4277

Procedure - Indictment - Quashing - [See Criminal Law - Topic 4270 ].

Cases Noticed:

R. v. Denis, [1969] 2 O.R. 205; 1969 CarswellOnt 870 (C.A.), refd to. [para. 31].

R. v. E.A.D.M. (2008), 228 Man.R.(2d) 238; 427 W.A.C. 238; 2008 MBCA 78, refd to. [para. 31].

R. v. McConnell (D.R.) (2005), 197 O.A.C. 177; 196 C.C.C.(3d) 28; 2005 CarswellOnt 1596 (C.A.), refd to. [para. 31].

R. v. A.S. (1998), 113 O.A.C. 340; 130 C.C.C.(3d) 320 (C.A.), refd to. [para. 32].

R. v. Roth (L.C.) (2002), 306 A.R. 387; 2002 ABQB 145, refd to. [para. 33].

R. v. Beaulieu (A.), [2004] Northwest Terr. Cases 19; 2004 NWTSC 19, refd to. [para. 34].

R. v. Cuerrier (H.G.), [1998] 2 S.C.R. 371; 229 N.R. 279; 111 B.C.A.C. 1; 181 W.A.C. 1, refd to. [para. 57].

R. v. Mabior (C.L.) (2010), 258 Man.R.(2d) 166; 499 W.A.C. 166; 2010 MBCA 93, refd to. [para. 57].

R. v. Detering, [1982] 2 S.C.R. 583; 45 N.R. 91, refd to. [para. 69].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 268(1) [para. 38]; sect. 601(1) [para. 28].

Counsel:

Wendy E. Friesen, for the Crown;

Edmond G. Murphy, for the accused.

This matter was heard before McCawley, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on August 9, 2011.