Alberta assault case where the accused was acquitted after the judge found reasonable doubt regarding intent. The defence lawyer, Rory Ziv, successfully argued that the leg contact with the complainant’s head was a reflexive action, not an intentional kick, resulting in a not guilty verdict.
This assault trial involved an incident, where the accused’s leg made contact with the complainant’s head while they were in bed. The complainant testified the accused intentionally kicked her, while the accused maintained it was an accidental, reflexive motion.
The complainant’s testimony contained inconsistencies, including uncertainty about medication use, whether the accused was awake or asleep upon entering the bedroom, and whether he was actively watching TV. She acknowledged memory can fade over time and conceded several details she initially presented as facts.
The accused testified he was tired, half-asleep, and had declined the complainant’s sexual advances multiple times that evening. When she touched his inner thigh again, he reflexively lifted his leg, unintentionally striking her head. He immediately showed concern for her welfare, arranging transportation to the hospital due to his suspended license.
Defence counsel Rory Ziv successfully argued the Crown failed to prove intent beyond a reasonable doubt. The judge applied the W.(D.) credibility analysis and noted the absence of extrinsic evidence showing animosity, arguing, or conduct indicating intentional violence. The complainant provided no testimony of words, gestures, or actions suggesting deliberate assault.
Citing Docherty, the judge ruled that any doubt about whether the accused intended his actions must be resolved in his favour. The Crown’s burden to prove intentional infliction of force beyond a reasonable doubt was not met. The accused was acquitted, with the court finding his testimony raised a reasonable doubt regarding mens rea (criminal intent).
