Madsen guilty of aggravated assault

A Yorkton judge has found Kim Madsen, 31, guilty of aggravated assault in a September 2015 incident that left 42-year-old Dennis Peepeetch paraplegic.

Never in dispute in the 18 months since was that early on the morning of September 24, 2015 at the City Limits Inn (CI), the two men interacted leading to Madsen grabbing Peepeetch by the collar and slamming him into the ground several times. This was recorded by a security video and readily admitted to by the accused and corroborated by numerous witnesses.

The Crown’s case, presented by prosecutor Andrew Wyatt, was based on the contention that Madsen had, with little provocation, attacked the much smaller and frailer man, who suffered from a pre-existing spinal condition that made him prone to serious injury.

The defence, led by David Rusnak, argued that Peepeetch had instigated the incident by spitting in the defendant’s face and attempted to raise reasonable doubt that it was the incident with his client that caused the paralysis.

In a ruling that took more than six hours to read, Judge Patrick Reis said the case revolved around the credibility and reliability of witnesses.

After reviewing all of the testimony of all of the witnesses in minute detail, Reis made remarks regarding several legal standards including hearsay, assessing credibility, legal causation and self-defence law.

He noted, citing several authorities, that hearsay was inadmissible and applied equally to the Crown and defence. He never did establish, however, how this was specifically relevant to the case at hand except to say that his decision would not be based on “any improper evidence.”

On causation, the judge cited what is commonly called the “thin skull rule,” which basically means a defendant must take his victim as he finds him. If the accused is responsible, even in part, for the result of his actions (in this case paralysis of the victim), he is criminally liable.

With respect to credibility, Reis reviewed the three-part test that puts the onus on the Crown to prove guilt beyond a reasonable doubt as is commonly used to instruct juries: 1. If you believe the evidence of the accused, you must acquit; 2. If you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit; and 3. Even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence that you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Finally, the judge read out Section 34 of the Criminal Code that establishes the conditions that must be met for a claim of self-defence. The critical element of this is again a three-part test: 1. That the defendant must have reasonably believed force or the threat of force was being used against him; 2. That the act he is accused of was committed for the purpose of protecting himself; and 3. That the committed act was reasonable under the circumstances.

The Crown must only disprove one of these for the defence to fail, Reis said.

Having established the foundation for his decision, the judge again reviewed the witnesses in lesser detail. He found all the Crown witnesses to be credible and reliable, but the critical Crown testimony came from neurosurgeon Dr. Anil Kumar who unequivocally attributed Peepeetch’s injuries and paralysis to the actions of Madsen, which Reis accepted.

With respect to defence witnesses, Reis found the paramedic credible, but most of what he testified to was not overly relevant to the decision.

The judge dismissed the evidence of Alicia Delorme, Peepeetch’s cousin, who testified she had seen Madsen wipe spit off his face because the video clearly contradicted her and she admitted as much.

The judge also dismissed the evidence of Jessica Walsh, who had been Madsen’s companion at the CI on the night in question. Reis did accept her claim that there was spit involved, but that it was incidental spittle from a close verbal confrontation and not an intentional “loogie” as the defence had attempted to characterize it. Other than that, he said, her two statements to police and trial testimony were too “self-absorbed” and full of “internal inconsistencies” to be believable.

Ultimately, though, it was Madsen’s own credibility on the stand that was his undoing.

“I do not believe Mr. Madsen,” Reis concluded.

The judge said the defendant’s contention that he acted because he felt threatened by Peepeetch was “inconceivable.”

He said Madsen had exaggerated the spitting incident to justify the attack on Peepeetch and did not accept that the accused did not have other options to respond whatever small provocation the victim may have offered.

Reis said he was satisfied the Crown had proved beyond a reasonable doubt that Madsen’s actions were not in self defence, but because the other man was annoying him and his companion.

Finally the judge noted that while it was not pertinent—because the Crown had already satisfied one element of the test—he also found Madsen’s actions were not reasonable in the circumstances given the victim’s small and frail stature and state of severe intoxication.

When Reis proclaimed Madsen guilty of aggravated assault, there was audible relief and brief applause from the gallery. Vicky Wapemoose, Peepeetch’s mother openly wept.

“We’re so happy with the guilty verdict today,” she said. “The whole family is very happy.”

Madsen exhibited little visible reaction.

Following the verdict, Rusnak requested preparation of a pre-sentence report.

Reis ordered the report and scheduled sentencing for May 12.