R. v. C.T. Date:, 2013 BCPC 312

Citation: R. v. C.T. Date: 20131029 2013 BCPC 0312 File No: 37153-2-KC Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.T. REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Counsel for the Crown: M. L. Ahrens Counsel for the Defendant: B. Gilson QC Place of Trial: Prince George , B.C. Date of Trial: September 30, October 1and 2, 2013 Date of Judgment: October 29, 2013 INTRODUCTION

[ 1 ] The Accused, C. T. , also known as C. A., is charged on Information 37153-2-KC with the following offences alleged to have occurred on February 3, 2013 at Prince George, British Columbia:

a) Count 1: Aggravated Assault of Mr. H(1).contrary to

Section 268 of the Criminal Code ; and

b) Count 2: Assault of Cst. Penney, a peace officer engaged in the execution of her duty, contrary to

section 270 of the Criminal Code . [ 2 ] Ms. T. alleges that she was acting in self-defence with regard to the allegations involving Mr. H. . THE WITNESSES AND OTHER EVIDENCE [ 3 ] The Crown called five witnesses including:

a) Mr. H(1), the complainant in Count 1 is a 35 year old renovation construction worker. He is 188 cm tall and weighs 100 kg. He suffered four stab wounds in the incident and was treated at the University Hospital of Northern British Columbia (UHNBC);

b) B. H., Mr. H(1)’s employer, who transported Mr. H(1) to UHNBC;

c) Cst. Theresa Oelke, of the Royal Canadian Mounted Police (RCMP) Forensic Identification Services, who took photographs and provided evidence concerning the scene of the incident and the finding of two knives;

d) Cst. Carmen Penney of the RCMP is the complainant in Count 2. She had dealings with Ms. T. at the detachment; and

e) Cst. Sabrina Reis of the RCMP who arrested Ms. T. and had dealings with her in the detachment. [ 4 ] The Crown also relied on a number of photographic exhibits depicting the scene of the incident, Mr. H(1)’s clothing, the truck used to transport Mr. H(1) to UHNBC, Mr H(1)’s injuries during his treatment, the location where one of the knife blades was found, as well as photographs of Ms. T. and items of her clothing at the time of her arrest. [ 5 ] The Crown and Defence Counsel agreed to admit the medical reports prepared by various doctors at the UHNBC during the time they were treating Mr.

H(1) for his injuries. [ 6 ] The Crown also tendered a video recording of Ms. T.’s interactions with various RCMP members in the booking area of the detachment. [ 7 ] The Crown and Defence jointly tendered an Admission of Fact concerning human blood depicted in photographs taken by Cst. Oelke. [ 8 ] The Defence called Ms. T. She is a 24 year old First Nations person of Cree ancestry. She was described as being 140 cm tall and weighing 50 kg. She is the mother of three children, two of whom live with family members and one who was born August 9, 2013 while Ms. T. was in custody.

HISTORY PRIOR TO FEBRUARY 3, 2013 [ 9 ] Mr. H(1)’s employment as a renovation worker takes him around western Canada. In 2012 he was working in Saskatoon, Saskatchewan when he met Ms. T. Mr. H(1) said this occurred in the summer of 2012; Ms. T.'s recollection was that it occurred in the spring of that year. [ 10 ] They entered into an intimate relationship soon after meeting. Ms. T. described Mr. H(1) as being heavily engaged in drug taking at that time. Eventually, Mr. H(1) moved on to a new job in Prince George where his supervisor was Mr. H(2). Mr. H(2) described Mr.

H(1) as a good worker, calm and a nice guy. [ 11 ] Mr. H(2) stated that he occasional would socialize with Mr. H(1) and other employees and had seen Mr. H(1) intoxicated on two occasions and that he had a pleasant demeanour while intoxicated. He also acknowledged that he knew little of Mr. H(1)’s lifestyle or personal life but that Mr. H(1) rarely missed work. [ 12 ] After being in Prince George for a while, Mr. H(1) sent money to allow Ms. T. to join him. She said that Mr. H(1) offered her work with him and that he would take care of her. Mr. H(1) admitted to offering to maintain Ms.

T. but that she only worked briefly with him and then spent the rest of her time with him pursuing her own interests while he was at work. [ 13 ] Ms. T. said she was concerned about Mr. H(1)’s addiction issues but upon his assurances that he had cleaned up she agreed to join him. Mr. H(1) is a daily drinker. He acknowledged a lifestyle consisting of work, home, beer and sleep and that he would regularly buy and consume at least 12 beers or more each day after work. Ms. T. said he could consume 30 beers in a three hour period in an evening. [ 14 ] Ms. T. described Mr.

H(1) as being nice at first although he wanted sex on a daily basis, something to which she acquiesced. However, she described a change in his attitude beginning in January 2013 when he began to call her a prostitute and an escort and accused her of sleeping with his co-workers. This behaviour began just about the time Ms. T. advised Mr. H(1) that she was pregnant and that he was the father.

[ 15 ] Mr. H(1) said he was unsure if the child was his but if it was he would accept responsibility for it. He also acknowledged that he probably raised the issue of Ms. T. having an abortion prior to February 3, 2013. [ 16 ] In January 2013 there was an incident of violence between Ms. T. and Mr. H(1). Ms. T. said that Mr. H(1) hit her so she hit him back and then moved into a woman’s shelter for a week or more. Mr. H(1) did not have a clear recollection of that incident but offered that he was not a violent man and generally did not hit people. Ms. T. said she returned to reside with Mr.

H(1) after she confirmed her pregnancy. Mr. H(1) said he would take care of her and he agreed to slow down his drinking. Ms. T. said this was not the first incident of violence between them but did not give any other specifics and those allegations were not put to Mr. H(1). Mr. H(1) denied any violence prior to January 2013. [ 17 ] Prior to February 3, 2013 Mr. H(1) and Ms. T. resided in a number of locations in Prince George. At first they were residing in a unit on Mr. H(1)’s job site, a local apartment tower. Ms. T. said they decided to move out of there but both Mr. H(1) and his boss, Mr.

H(2), said they were forced to move because of Ms. T.’s actions towards other workers. From there they moved to one motel from which they were evicted due to entertaining late night visitors, to another motel where they were evicted because Ms. T. broke a window in the unit and eventually to a third motel room where the incident on February 3, 2013 occurred. [ 18 ] Ms. T. complained of Mr. H(1)’s controlling behaviour by making her dress a certain way, denying her money, restricting her movements and refusing to allow her to call her family.

She later acknowledged that he gave her money for food, clothing, art supplies and the like, that he gave her a computer game station and a laptop through which she could communicate with family, and that she spent her days visiting friends, going to the library and pursuing her art without any interference from Mr. H(1). FEBRUARY 3, 2013 INCIDENT [ 19 ] On February 3, 2013 Mr. H(1) was working at his job site for most of the day but work concluded early because it was Super Bowl Sunday. [ 20 ] Mr. H(2) stated that he and Mr.

H(1) had agreed to a bet on the outcome of the football game and that he was in text contact with Mr. H(1) during and immediately after the game; with the last text being at about 8 PM. [ 21 ] Mr. H(1) acknowledged that some of his recollections of the event of February 3, 2013 were clouded due to his consumption of alcohol and the possibility of cocaine consumption. [ 22 ] Mr. H(1) recalled returning home from work and watching the football game while drinking beer. He was uncertain as to how many beers he would have had that night but did not disagree that it could be as many as 12 or more. [ 23 ] Ms.

T. said that Mr. H(1) returned home with a case of beer and watched television while drinking the beer. She also stated that Mr. H(1) consumed cocaine from a table in the room but was unable to indicate in the photographs in evidence where in the room the table was located. There were no obvious indicators of drug consumption activity in any of the photographs. [ 24 ] Ms. T. initially stated that she did not drink that night because she was pregnant and because she did not like cheap beer but later acknowledged that she drank, by her estimate, three to four beers that night. Her drinking was confirmed by Mr.

H(1) but he could not quantify the amount Ms. T. consumed. The photographic evidence shows 17 empty beer cans and two beer boxes in the room. [ 25 ] As the evening progressed, Mr. H(1) acknowledged that there was an argument between him and Ms. T. He believed it started by her accusing him of sleeping around, which he denied doing. Later in his evidence he acknowledged the possibility that he may have raised the issues of Ms. T.'s pregnancy, abortion and whether or not he was the father. [ 26 ] Ms. T. said that Mr.

H(1) had raised the issue of abortion earlier on in the evening that she ignored him because she was on the computer but that his comments upset her. A short time later Mr. H(1) asked her to come to bed to watch television. When she did he pushed her away, called her a dog, pulled her onto the floor by the bed and told her to sleep on the floor like a dog. [ 27 ] She said he then got on top of her and punched her in the back of the head two times and in the stomach once, but she got away and ran towards the kitchen/bathroom area. Mr. H(1) said he had no memory of punching Ms.

T. at any point in the evening but there was a possibility that he did. [ 28 ] Mr. H(1) said he was sitting on the bed when Ms. T. returned from the kitchen area with a knife in her hand. Seeing this, he tried to get out of the room but a malfunctioning door knob prevented his escape. He said Ms. T. came at him with the knife but he got it away from her and threw it out an open window. There were no open windows depicted in the photographs of the room. [ 29 ] Mr. H(1) said Ms. T. grabbed a second knife and came at him and he felt the knife stabbing into his back two times as he tried to escape.

At that point he called a taxi and finally got out of the room by wedging the door open. He went to the neighbour’s for assistance but no one answered the door. At that point Ms. T. came outside and tried to convince him to stay. When the taxi arrived, the taxi driver refused to assist him and he ended up driving his work truck to Mr. H(2)'s residence to get a ride to the hospital. [ 30 ] Mr. H(1) initially said that he did not get physical with Ms. T. before he was stabbed but that he might have pushed her out of the way so he could get out of the room.

Later in his evidence he acknowledged that there was a possibility that he may have struck Ms. T. but that he could not recall that due to his intoxication by alcohol and possibly cocaine. [ 31 ] Ms. T. said that once she got away from Mr. H(1) she grabbed the black handled steak knife with the intention of slitting her wrists in the bathroom. She said that Mr. H(1) came into the bathroom and struck her again and she fell on the floor in the fetal position. At that point she noted that Mr. H(1) had the yellow and black handled kitchen knife but he dropped that knife on the floor. Ms.

T. said that she did not recall what happened next but that she wanted to get out and tried to run for the door but the door handle was broken. She said she still had the black handled steak knife in her left hand and that was when Mr. H(1) punched her in the side of the head numerous times but she couldn't say how many. Ms. T. said the punches were very hard, like punching a man. She told him not to hit

her or she would stab him. [ 32 ] Ms. T. stated that she stabbed Mr. H(1) in the arm and as he tried to get her on the ground and she ran past him and stabbed him in the back. At other points in her evidence she acknowledged that she stabbed Mr. H(1) four times with a knife but was unable to explain where the wounds were with the exception of one stab wound to his back. [ 33 ] Ms. T. explained that she stabbed Mr. H(1) because he would not stop hitting her. She said she was afraid and she felt she was going to die. Mr. H(1) acknowledged that it was a possibility that Ms.

T. may have got the knife to defend herself. [ 34 ] Ms. T. said that after the stabbing she was in shock and stood there while Mr. H. sat on the bed, had a beer and smoked a cigarette. She did not know what to do and as she looked around she noted she only had the knife handle in her hand. [ 35 ] Ms. T. stated that Mr. H(1) did not want her to call an ambulance but she got some towels to help him by applying pressure to the wound. She went back into the bathroom to get some more towels and when she returned Mr. H(1) was driving away in his work truck.

At that point she tried to clean up some of the blood, grabbed her laptop and left the room. [ 36 ] Mr. H(2) next heard from Mr. H(1) at approximately 11:30 PM when he called from the lobby of the jobsite where Mr. H(2) was residing and asked Mr. H(2) to drive him to the hospital. When Mr. H(2) met him in the lobby Mr. H(1) was bleeding profusely from his back and Mr. H(2) concluded that he must be taken to the hospital. Initially Mr. H(1) agreed with that plan but when he was advised by Mr. H(2) that the RCMP would have to be involved Mr. H(1) said he did not want to go the hospital. He was convinced by Mr.

H(2) that there was no other option due to the seriousness of his injuries. [ 37 ] It was at that point that Mr. H(2) saw the blade of a steak knife sticking out of Mr. H(1)’s pant leg. He removed the blade and deposited it in the garbage can in the lobby and later pointed it out to Cst. Penney. THE MEDICAL EVIDENCE [ 38 ] Based on the medical records for UHNBC and the photographs in evidence, it is clear that Mr. H(1) suffered significant blood loss. A

summary of the UHNBC medical records indicates:

a) Mr. H(1) was admitted at 23:40 hours in blood soaked clothes exhibiting obvious signs of alcohol intoxication;

b) he suffered a syncopal episode prior to treatment;

c) he had four stab wounds on his body; two on the lower right leg and two in the back - one on the left posterior iliac crest to a depth of 6 cm and a less serious wound on the right side;

d) the two leg wounds and the right side back wound were irrigated and sutured but the left side back injury required anesthesia to repair the venous and arterial bleeds and to irrigate and suture the wound and to have a drain inserted;

e) various scans, blood work and lab tests were performed on Mr. H. and he was kept in hospital overnight for observation;

f) he was directed to a clinic to have the drain removed a couple of days later and the sutures removed 7 to10 days later. [ 39 ] Mr. H(1) said that he was off work for several weeks and still has intermittent pain associated with his injuries. [ 40 ] Based on the photographic evidence and the medical records, Mr. H(1)'s injuries clearly fall within the definition of a wounding and an endangerment to life as described in

section 268 of the Criminal Code . THE KNIVES [ 41 ] The handles and blades of two broken knives were located by RCMP members after the incident. There was one black handled knife, the handle of which was located in the garbage in the room occupied by Mr. H(1) and Ms. T. and the blade of which was found by Mr. H(2) sticking out from Mr. H(1)'s clothing which he deposited into a garbage can and was later retrieved by the RCMP. The blade of that knife was approximately 12 cm and it had the appearance of a steak knife. [ 42 ] There was also one black and yellow handled knife.

Both the handle and the blade were found broken apart in the garbage in the room occupied by Mr. H(1) and Ms. T. The blade of that knife was approximately 20 cm and it had the appearance of a kitchen utility knife. [ 43 ] During her evidence Cst. Oelke described the photographs she took of the two broken knives and explained that, although she was not an expert on such topics, it appeared that the black handle matched the blade found by Mr. H(2) in Mr.

H(1) pants and the black and yellow handle matched the larger bladed kitchen knife found in the garbage in the room. [ 44 ] There were no tests performed on the knives to attempt to link either the blood or fingerprints found to either Ms. T. or Mr. H(1). RCMP DEALINGS WITH MS. T. [ 45 ] Cst. Penney was initially dispatched to investigate Mr. H(1)'s stabbing. She had dealings with Mr. H(2) at UHNBC and was directed by him to a garbage can at the jobsite where the black handled knife blade had been deposited. She seized that knife blade. [ 46 ] Cst.

Penney took further investigatory steps and then commenced a search to find and arrest Ms. T. but the arrest was affected

by Cst. Reis. [ 47 ] Cst. Penney had further dealings with Ms. T. at the detachment where she took various photographs of Ms. T. and seized her clothing for evidence. She said she observed no visible injuries on Ms. T. and specifically that there were no observable cuts or bruises and no bumps or lumps on her head. She commented that there was no complaint by Ms. T. of having been assaulted, having been injured or being in pain and that she had no trouble walking. [ 48 ] Cst. Penney also noted that Ms. T. was impaired by alcohol but not to the point of falling down. She described Ms.

T.'s behaviour as verbally abusive and uncooperative and stated Ms. T. talked about her pregnancy and wanting an abortion but that her comments did not make any sense. [ 49 ] While attempting to have Ms. T. remove her clothing Cst. Penney noted that Ms. T. was resistant and tried to punch Cst. Reis and then later tried to kick and punch her but that she, Cst. Reis and another RCMP member, were able to take quick action to subdue Ms. T. [ 50 ] Cst. Penney acknowledged that she did not have a continuous clear recollection of all the events that happened in detachment but that she was certain that Ms.

T.'s actions included a punch directed at her and not just flailing about. [ 51 ] Cst. Reis’ evidence included the playing of a video of the events that occurred in the booking area of the detachment and the dealings she and Cst. Penney had with Ms. T. That video was played in Court three times in order to clearly demonstrate the actions of each of the constables and Ms. T. [ 52 ] Ms.

T. described being very upset at the detachment particularly when the RCMP members wanted her to remove her clothing in front of a camera and men and she refused. [ 53 ] She agreed that she was fussing with regard to taking off her clothes and then she got into a scuffle with two female RCMP members who pulled her down and at which time she told them she was pregnant. [ 54 ] Ms. T. said she was resisting because she did not know why the RCMP members wanted to take off her clothing, even though they told her they wanted it for evidence.

She initially stated that she did not know if she was trying to hit the RCMP members but she just wanted them to stop but later acknowledged that she was trying to hit them. [ 55 ] Ms. T. contested Cst. Penney’s evidence that she was examined and no injuries were found. With regard to the photographs taken of her by Cst. Penney, Ms. T. commented that a computer could be used to erase things and that is why no bruises were found on her face in the photographs [ 56 ] Ms.

T. also said that she asked to be taken to the hospital because she was worried about her baby and because her stomach was hurting from where she says Mr. H(1) punched her. She also stated that she had injuries but did not want to tell anybody about them and that her physical abilities were fine when she was in the scuffle with the constables because she could handle a lot of pain. [ 57 ] Ms. T. also stated that while in the custody of the RCMP in cells she attempted suicide by strangulation but received no assistance. That contention was not put to either of the constables.

POST FEBRUARY 3, 2013 CONTACT [ 58 ] Mr. H(1) stated that approximately one month after he was stabbed he received a telephone call from Ms. T. He could not recall the details of the telephone conversation except that it was short and that he was distracted during the conversation because he was in a rush at work. [ 59 ] He said he did recall asking Ms. T. why she did what she did and she replied with what he described as some sort of apology concerning the incident, a request to send her money and a direction not to talk to the police.

THE LAW Assault and Aggravated Assault [ 60 ] Sections 265(1) , 268(1) and 270(1) of the Criminal Code read in part as follows: 265(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; 268(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. 270(1) Every one commits an offence who (

a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer.

[61] An assault can either be the intentional application of force to a person without that person's consent or, alternatively an attemptor threat to apply force to another person if it causes that person to believe, on reasonable grounds, that there is the present ability tocarry out the assault. [62] An assault becomes an aggravated assault by three additional elements including; a wounding, maiming or endangerment tolife; that the accused’s conduct caused the wounding maiming or endangerment; and a reasonable person would have concluded that theaccused’s conduct would subject the victim to a risk of bodily harm.

There is no need that there be an intention to wound or maim orendanger as they are the consequences arising from an intention to assault where there is an objective foresight of the risk of bodily harm(R.v. Godin (SCC), [1994] 2 S.C.R. 484). [63] In circumstances where an assault is against a peace officer engaged in the execution of her duty s. 270 is invoked. Self Defence [64] Sections 34 and 37 of the Criminal Code in force at the time of these allegations read as follows: 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force heuses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Everyone who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originallymade or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. ….. 37.

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force thanis necessary to prevent the assault or the repetition of it.

(2) Nothing in this

section shall be deemed to justify the willful infliction of any hurt or mischief that is excessive, having regard to thenature of the assault that the force used was intended to prevent. [65] Both sections require that the force used not be disproportionate to the force needed to repel the unlawful assault (s. 34(1)) or toprevent the assault or its repetition (s. 37). [66] On March 11,2013 The Citizen’s Arrest and Self-Defence Act, SC 2012, c.9 repealed

section 34 of the Criminal Code andreplaced it with a New s. 34 (“New s. 34”) which provides in part as follows: 34.

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being madeagainst them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstancesof the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce;

(

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [67] The New s.34 preserves the proportionality of the force used test for self - defence. Proportionality of the force used is only oneof a non-exhaustive list of factors the Court must assess in determining, based on all the circumstances, if the force used was for adefensive or protective purpose and was reasonable in the circumstances. [68] In R.v. Evans 2013 BCSC 462 the Supreme Court of British Columbia concluded that the self-defence amendments set out inNew s. 34 are not retrospective.

At paragraph 17 of that decision Madam Justice Fisher says: 17 The main issue, in my view, is whether the amendments affect substantive rights.

I have concluded that the new self-defenceprovision in S. 34 has affected a substantive change to the content of the defence, and as such must be applied prospectively only. [69] Counsel advised the Court that while the former Criminal Code self-defence provisions applied to this prosecution, the Courtmust also consider the recent decisions from Ontario which have held that the presumption against the retrospective nature of legislationaffecting a substantive right is rebuttable and that the New s. 34 may be beneficial to Ms.

T. in her claim that she acted in self-defence. [70] In addition, I am also guided by R.v. Williams 2013 BCSC 1774 where Mr. Justice Romilly commented that it would be prudentto determine the issue of self- defence under both the old and new provisions of the Criminal Code in case Evans is overruled by anappellate court. [71] In the circumstances of this case the actions of Ms. T., although resulting in serious injuries to Mr. H(1), would not be unlawfulif she acted in self-defence or there is a reasonable doubt that she did.

The onus remains on the Crown to demonstrate beyond areasonable doubt that self-defence does not apply. [72] As set out in the decisions of R. v. Brar 2009 BCCA 585 and R. v. Fontaine 2004 SCC 27 , [2004] 1 S.C.R. 702 theissue to be determined by the Court is did Ms. T. reasonably believe, in all the circumstances, that she was being unlawfully assaulted,and if so, whether the evidence claiming self-defence is reasonably capable of supporting the inference required for an acquittal. If theCourt is left in a reasonable doubt about whether self-defence is present, Ms. T. is entitled to an acquittal (R. v.

B.S.A 2012 BCSC 479). Credibility and Reliability [73] This case places front and centre the need to assess the credibility and reliability of the testimony of the witnesses, particularlyMr. H(1) and Ms. T. The truthfulness or veracity of a witness is addressed by assessing their credibility. The ability of a witness totestify about the events in question based on accurate observation and clear recall is addressed by assessing their reliability. A personwho lies under oath is not capable of providing reliable evidence.

A person who is attempting to be truthful may still give unreliableevidence if his or her ability to observe, remember and recall the events are affected or impacted in some way. [74] Given that situation it is necessary to apply the test laid out in R. v. W.(D.) [1991] SCR 742 which instructs trial courts toconsider the evidence as a whole in the following manner: (

a) if I believe the evidence of the Accused I must acquit; (

b) if I do not believe the evidence of the Accused but I am left in a reasonable doubt by it I must acquit; and (

c) if I do not believe or I am not left with a reasonable doubt by the evidence of the Accused I must consider whether on the basis of allof the evidence I do accept that I am convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [75] It is not necessary to slavishly adhere to the W.(D.) formula so long as it is clear that the whole of the evidence has beenconsidered in reaching any conclusions with regard to whether or not the Accused is guilty (R. v. Minuskin (ON CA),[2003] O.J. 5253 and R. v. P.W. 2003 BCCA 542). [76] In assessing the evidence of each witness the Court must assess not only the credibility of their evidence but the reliability of itas well.

[ 77 ] In that regard courts have often used the following as guides: (

a) internal consistency or inconsistency of the witness’s evidence; (

b) external consistency or inconsistency of the witness’s evidence in relation to the evidence of other witnesses; (

c) the inherent probability or reasonableness of the witness’s account; (

d) whether the witness has anything to gain or lose by giving particular evidence; (

e) the ease or difficulty of fabrication of the evidence; (

f) the unavoidable reconstructive processes of memory; (

g) the attitude or demeanour of the witness while giving evidence; (

h) the character background of the witness; and (

i) the reliability of the evidence based on the witness’s opportunity or ability to observe. [ 78 ] Not all the guides need be applied in all circumstances but they do provide assistance in assessing a witness’s evidence.

In addition, the Court can, in assessing the evidence of any witness, accept none, some or all of that evidence. [ 79 ] Furthermore, the Court must be particularly vigilant in assessing the evidence where witnesses acknowledge intoxication due to alcohol or drugs. [ 80 ] A trial Judge must consider the whole of the evidence to see if the Crown has established, to the Court's satisfaction, the accused's guilt beyond a reasonable doubt ( R. v. Prokofiew 2012 SCC 49 ). In R.v.

J.M.H. 2011 SCC 45 the Supreme Court of Canada stated “a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.” SUBMISSIONS Defence [ 81 ] Defence counsel’s submissions on behalf of Ms. T. can be summarized as follows:

a) the provisions of New section 34 (2) provide a useful tool to weigh the evidence of self-defence;

b) there is no doubt that the injuries suffered by Mr. H(1) satisfy the definition for an aggravated assault if self-defence is not made out;

c) both Ms. T. and Mr. H(1) were intoxicated on the night in question, Ms. T. less so, and Mr. H(1) by both alcohol and possibly cocaine;

d) the incident began as an argument, probably on the topics of Ms. T.’s pregnancy and possible abortion, and both Ms. T. and Mr. H(1) were upset;

e) based on previous events it is likely that Mr. H(1) assaulted Ms. T. He was much larger than her and he struck her in the head and stomach several times on three different occasions that evening;

f) Ms. T. obtained a knife the purposes of self harm but when Mr. H(1) continued his assaults she responded by defending herself because she was fearful;

g) it is not a requirement at law that Ms. T.'s defence to repel Mr. H(1)'s attack be done with nicety;

h) Ms. T.'s actions towards the RCMP members at the detachment show her lashing out but she was angry and distraught and no blow actually landed. Crown [ 82 ] The Crown’s submissions in response can be summarized as follows:

a) W.(D.) must be applied and the Court should reject Ms. T.'s evidence as inconsistent and contradictory both internally and when compared to the evidence of others, and it was rambling and nonresponsive to the questions posed;

b) Ms. T.'s claims of injuries as a result of assaults by Mr. H(1) are clearly at odds with Cst. Penney's observations that she was not suffering from any injuries;

c) Ms. T.'s claims of being a victim of and controlled by Mr. H(1) are not borne out by her own evidence that she had all the freedom wished for during the day and that Mr. H(1) provided her with money so that she could purchase items for herself as well as groceries

and other household goods for their room;

d) Mr. H(1) evidence was freely and frankly given and not contradicted by any reliable evidence. He did not acknowledge being a violent person describing his life as work, drink and sleep. His employer, Mr. H(2), described Mr. H(1) as quiet and good-natured;

e) Ms. T. admitted to stabbing Mr. H(1) four times including one stab wound to the back. Given Mr. H(1)’s injuries it is clear he was escaping from her and not the other way around;

f) Ms. T. admitted to trying to strike Cst. Penney at the detachment. DISCUSSION AND FACT FINDING [ 83 ] Based on the evidence presented the following facts can be determined to be either uncontested or easily proven beyond a reasonable doubt:

a) there was a previous incident of violence between Mr. H(1) and Ms. T. in January 2013;

b) as a result of Ms. T.'s behaviour the parties were evicted from previous living situations prior to February 3, 2013;

c) on the evening of February 3, 2013 Mr. H(1) and Ms. T. were both intoxicated to some degree; Mr. H(1) more so than Ms. T.;

d) there was an altercation between Mr. H(1) and Ms. T. that started as an argument and escalated until Mr. H(1) was stabbed by Ms. T.;

e) Mr. H(1) was stabbed four times by Ms. T.; three wounds were superficial and one in the back was very serious. Mr. H(1) was not stabbed in the arm;

f) Ms. T. was involved in a physical altercation with RCMP members at the police detachment. [ 84 ] The contested evidence requires that the following issues be determined:

a) did Mr. H(1) assault Ms. T. before she stabbed him; and if so what was the nature of that assault;

b) was Ms. T. repelling Mr. H(1)'s advances when he was stabbed or was he fleeing her;

c) how many knives were used in inflicting the stab wounds on Mr. H(1);

d) did Ms. T.'s use of a knife fall within the self-defence provisions or was it excessive force in the circumstances;

e) was Ms. T. merely being uncooperative with the RCMP members at the detachment or did her actions amount to an assault. Credibility and Reliability [ 85 ] Ms. T.'s evidence was riddled with contradictions and inconsistencies and much of it was at odds with the other evidence presented; even the evidence which was objectively unassailable. [ 86 ] On many occasions Ms. T. did not even attempt to answer the questions she was being asked. Often, she would provide unprompted off-topic statements.

Many of her responses were implausible and improbable and seemed to be designed only for the purpose of casting her in a sympathetic light. [ 87 ] Some examples of Ms. T.'s problematic evidence include:

a) first stating that she was not drinking on the evening of the incident because she was pregnant and does not drink cheap beer, but within minutes changing her evidence to say that she had 3 to 4 beer;

b) stating that she and Mr. H(1) moved from their first residence in Prince George by choice when Mr. H(1) and Mr. H(2) both said that they were asked to leave due to her behaviour;

c) stating that Mr. H(1) did not provide for her and controlled her but later acknowledging that he bought her items, gave her money for her own use and left her to do what she wanted during the day while he was working;

d) denying that the photographs taken of her by the RCMP were accurate and going further to suggest that those photographs were altered by the RCMP;

e) initially stating that she only resisted the RCMP members because she did not want to remove her clothing and later admitting that she was trying to strike them;

f) stating that she attempted to strangle herself while in RCMP cells and that she received no assistance in the face of no other evidence being elicited on that point.

[ 88 ] However, the starkest difference between Ms. T.'s evidence and the other evidence presented had to do with the circumstances of the February 3, 2013 incident. Those differences include:

a) Ms. T. stated that she obtained the black handled knife to harm herself but that she then retained the knife to defend herself against Mr. H(1)'s advances;

b) Ms. T. stated that she initially stabbed Mr. H(1) in the arm to repel him and then once in the back as she ran past him to escape when the medical evidence demonstrates that Mr. H(1) had four wounds all on the back side of his body;

c) Ms. T. stated that during the altercation Mr. H(1) punched her in the stomach and the head numerous times in three areas of the room. At that point she told him to stop or she would stab him. He then tried to get her to the floor and she stabbed him. Mr. H(1) denied ever being in the bathroom and that he tried to escape when Ms. T. came towards him holding a knife;

d) Ms. T. initially said that she told the RCMP members she wanted to be taken to the hospital. Later she stated that although she had injuries did not want to tell anybody about them and that despite those injuries her physical capabilities were fine when she had the altercation with the RCMP members. [ 89 ] Effectively, Ms. T. claims that she was badly beaten in the head and body. However, the other evidence does not bear that out. Mr. H(1) only agreed that it was a possibility that he hit Ms.

T. and he maintained he felt her stab him in the back twice when he was trying to escape the room after she produced a knife and advanced on him. [ 90 ] Cst. Penney's evidence and the photographs do not reveal any injuries to Ms. T. commensurate with suffering the beating she said she endured. Cst. Penney saw no physical trauma to Ms. T.'s head or body and none can be seen in the photographs taken by her. [ 91 ] In addition, although not of the highest definition, the video of Ms. T. in the detachment booking area does not reveal any visible signs of injury on Ms.

T.'s face and her actions during her altercation with the RCMP members do not appear to be impaired by any pain or injury. [ 92 ] Overall, the Crowns submissions concerning Ms. T.'s credibility are both accurate and fair in the circumstances. [ 93 ] In contrast, Mr. H(1)'s evidence was given in a straightforward and frank manner. In many respects he seemed to be empathetic to Ms.

T.'s situation by agreeing that his memory may have been clouded by alcohol intoxication; although he drank no more on February 3, 2013 then he did regularly on other nights; and the possibility of cocaine intoxication; although there were no signs of the use of that drug in the photographs. [ 94 ] Mr. H(1) also acknowledged other possibilities with regard to the events of February 3, 2013 such as that he may have started the argument with Ms. T. and that he may have struck her. He was resolute, however, and unshaken in his evidence that he was stabbed two times in the back by Ms.

T. while he was attempting to escape the room. [ 95 ] Furthermore, although Mr. H(1) acknowledged that it was a possibility that Ms. T. may have got the knife for protection even Ms. T. stated that she first obtained the knife in order to commit self harm. [ 96 ] There were errors and inaccuracies in Mr. H(1)'s evidence such as his assertion that he originally disarmed Ms. T. of one knife and threw it out the window and she then obtained a second knife but overall he attempted, as best he could recall, to be forthright with the Court. [ 97 ] The matter of which knife or knives were used by Ms.

T. and in what circumstances they were used is confusing and ultimately not fully explainable. Ms. T. said she only possessed the black handled knife and Mr. H(1) had the yellow and black handled knife but dropped it in the bathroom. Mr. H(1) said he disarmed Ms. T. of the black handled knife and she then obtained the yellow and black handled knife which she used to stab him. [ 98 ] The blade from the black handled knife was found by Mr. H(2) sticking out of Mr. H(1)'s blood soaked pants. That would seem to indicate it was used for at least some of the stabbings.

In the photographs it appears to have blood on it. [ 99 ] The yellow and black handled knife was discovered by the RCMP in two pieces in the garbage. The blade of that knife had fingerprints on it but no obvious bloodstains. [ 100 ] The evidence of Cst. Penney was also frankly given. She acknowledged some gaps in her memory of how the events at the detachment transpired. Those gaps may have provided some doubt concerning her ability to recall the actual circumstances of the events.

But, the video the altercation filled in any gaps and provided a clear and easy-to-follow visual representation of what occurred during the altercation between Ms. T. and the RCMP members. Self Defence [ 101 ] The claim of self-defence can be made out if the Court accepts or has a reasonable doubt about all of the elements under the then existing s. 34(1) including:

a) Ms. T. was unlawfully assaulted by Mr. H(1);

b) Ms. T. did not provoke the assault;

c) the force Ms. T. used was not intended to cause Mr. H(1) grievous bodily harm;

d) the force Ms. T. used was no more than necessary to defend herself. [ 102 ] Similarly, a claim of self-defence can be made out under s. 34(2) if the Court accepts or has a reasonable doubt about all the following elements:

a) Ms. T. was unlawfully assaulted by Mr. H(1);

b) Ms. T. had a reasonable apprehension of risk of death or grievous bodily harm; and

c) Ms. T. had a reasonable belief that it was not possible to preserve herself from harm except by killing Mr. H(1) or causing him grievous bodily harm. [ 103 ] The elements under s. 37 require the following:

a) that Ms. T. used force to defend herself; and

b) the force Ms. T. used was no more than necessary to prevent the assault or repetition of it. [ 104 ] If the Crown can prove beyond a reasonable doubt the absence of any of the elements described in s. 34(1) self-defence is not made out. If there is an acceptance of or a reasonable doubt about the existence of all of the elements an acquittal should be entered. ( R. v. Richter 2012 BCSC 1995 ). [ 105 ] An examination of the factors set out in s. 34(1) as they existed on February 3, 2013 leads to the following conclusions:

a) although Ms. T.'s evidence of what occurred prior to the stabbing has been rejected, Mr. H(1)’s evidence was that although he did not believe he had struck Ms. T. there was the possibility that he might have. That provides the air of reality requiring further examination and upon examination it does raise a reasonable doubt as to whether there was some form of assault by Mr. H(1)on Ms. T.;

b) there is no evidence Ms. T. provoked Mr. H(1). Her accusation of his infidelity, if made, would not meet the necessary criteria;

c) based on the medical evidence the force used by Ms. T. caused grievous bodily harm. Ms. T. had the intention to assault Mr. H(1) with a knife and any reasonable person would conclude that her actions would put Mr. H(1) at a real risk of bodily harm;

d) Ms. T. used far more force than necessary in the circumstances. Even if she had been assaulted by Mr. H(1) the nature of that assault was far less than what she described in her evidence. It was Mr. H(1) who was trying to escape from her once she armed herself with the knife as evidenced by the location of his wounds. [ 106 ] Section 34(2) does not apply in this case. Given the findings already made about the altercation there is no cogent evidence that Ms. T. could have formed a reasonable apprehension of death or grievous bodily harm. [ 107 ] In a similar vein s.37 does not provide a defence. Ms.

T.’s use of force was far more than necessary in the circumstances. Her response to the altercation by obtaining a knife and then stabbing Mr. H(1) multiple times when he was trying to remove himself from the room go well beyond that of a proportional response in the circumstances and are demonstrative of an intent by Ms. T. to cause Mr. H(1) grievous bodily harm when she was not facing a similar circumstance. [ 108 ] Examining the factors set out in the New s. 34 leads to the following somewhat similar conclusions:

a) if there was an assault by Mr. H(1) on Ms. T. it was similar to the previous altercation in January 2013 which Ms. T. resolved by withdrawing from the room and going to a women's shelter;

b) Ms. T.'s evidence concerning the extent of the assault visited upon her by Mr. H(1) has been rejected there may have been other means available for her to respond such as leaving the room;

c) there is uncertainty regarding the nature of the altercation between Ms. T. and Mr. H(1) until the point when Ms. T. armed herself with the knife;

d) Ms. T. both threatened to and did use a knife against Mr. H(1);

e) Mr. H(1) was clearly larger than Ms. T. and potentially more physically capable but Ms. T. demonstrated her considerable physical capabilities in an later altercation with the RCMP;

f) Ms. T. and Mr. H(1) had a intimate relationship lasting several months and there had been one prior incident of violence in January 2013;

g) Ms. T. responded to the situation during the altercation with Mr. H(1) by obtaining at least one if not two knives which she used to

attack him. [ 109 ] Overall, the Crown has proven beyond a reasonable doubt that at least some of the self-defence provisions in either the old or New

section 34 are not available to Ms. T. [ 110 ] The Crown has proven Count 1 beyond a reasonable doubt. [ 111 ] Despite her initial denials Ms. T. eventually admitted to attempting to strike Cst. Penney. The video of the incident shows that Ms. T. was initially very uncooperative and vocal to the point of resisting the attempts by the RCMP members to have her comply with their directions. [ 112 ] Eventually there was a struggle between Ms. T. and two RCMP members. During that struggle Ms.

T. pulled her left arm back with her hand in a fist in an attempt to strike out at the member closest to her but the other RCMP member intervened before the blow could be struck. Ms. T. was attempting to strike the member and hence was committing an assault under section 265 (1) (

b) of the Criminal Code . It was directed at a peace officer engaged in the execution of her duty and as such is an offence under

section 270 of the Criminal Code . [ 113 ] The Crown has proven Count 2 beyond a reasonable doubt. DECSION [ 114 ] I find the Accused, C. T., guilty on both Counts 1 and 2 of the Information. _______________________ M. J. Brecknell Associate Chief Judge Provincial Court of BC