R. v. Evans, 2016 BCPC 490

Citation: R. v. Evans 2016 BCPC 490 Date: 20161108 File No: 169863-2-KC Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL CAMERON EVANS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BROOKS Counsel for the Crown: P. Weir Counsel for the Defendant: R Jones Place of Hearing: Victoria , B.C. Date of Judgment: November 8, 2016 [ 1 ] THE COURT: Mr.

Evans is charged with three offences, on Count 1, that he robbed Ashley Birosh of a cellular telephone, Count 2, that he assaulted Ashley Birosh, and Count 3, that he breached his recognizance by attending within a two-block radius of a place that he knew to be the residence of Ashley Birosh. I have summarized those counts, obviously.

[ 2 ] With regard to Count 3, at the commencement of this trial, Mr. Evans entered a plea of guilty to that and the evidence clearly supports that plea and, therefore, there is a finding of guilt with regard to Count 3. [ 3 ] That leaves Counts 1 and 2, which, as counsel agree, raise the issue of proof beyond a reasonable doubt when there is an issue of credibility, and clearly in this case there is a credibility issue as between the evidence of the accused, who testified, and that of Ashley Birosh, who also testified. [ 4 ] Naturally, I am mindful of what the Supreme Court of Canada said in R. v.

W.D. , and as it was further explained by Mr. Justice Wood, as he then was, in C.W.H. I am to be mindful that the principle of reasonable doubt applies to credibility and to safeguard that principle in my analysis. In order to do so, I commence with an analysis of the evidence of Mr. Evans. [ 5 ] I should say at the outset that I agree, obviously, that the totality of the circumstances are to be taken into account when assessing the proof of the offence and the issue of credibility.

I raise that at the outset because there is one aspect to this evidence which in my view is not helpful on the issue of credibility and the proof of the offence and I wish to just refer to that now to make sure that I am clear in my reasoning process. [ 6 ] There was evidence led as to an incident between these two individuals in May of this year, behaviour which Mr. Evans admitted to during the course of his evidence.

Some of the circumstances surrounding that were referred to and I considered those circumstances, but in the totality, I am afraid that I am left with them being of no assistance whatsoever to me in determining the counts which are before the court, nor the credibility of the witnesses as it relates to those counts, so that evidence was not of any assistance to me. [ 7 ] So I turn now more directly to Mr. Evans when he testified in his own defence. I will say at the outset that assessing credibility is never an easy thing to do for one is assessing a person in a somewhat difficult environment.

Indeed, it is perhaps more than somewhat difficult. It is an environment to which an individual such as Mr. Evans is likely not used to speaking in. It is an environment in which it is bound to make an individual nervous. It is one which, to some extent, does favour those who are very well educated and well-spoken and articulate, and conversely is extremely difficult for those who are not well educated and do not speak well in public. So I take all of those things into account in assessing Mr. Evans' evidence and being mindful not to hold his evidence to too high a standard. [ 8 ] So what do I look for?

In the particular circumstances of this case, I look to Mr. Evans and his answering of questions. His answering of questions was, even with respect to his own counsel, not responsive. He did not answer questions directly and one had to search to try and make sense of what exactly he was answering.

In cross-examination, that expanded and, indeed, he began to answer questions with questions, and when pressed on certain issues, he was, without any question whatsoever, evasive in how he answered questions. [ 9 ] His answers to questions seemed like shifting sands, or he would answer a question one way and then when it seemed as if that was not the answer that he really was satisfied with he simply changed it.

From the statement by the social worker that he was a monster, it changed to something very different to say that essentially she looked at him that way in her speaking with him. [ 10 ] In assessing credibility, one looks at how the witness portrays themselves. The person who portrays themselves as an angel rarely is one and, indeed, is a person whose credibility suffers by portraying themselves in that way. Mr. Evans had a habit of portraying himself as the loving, caring partner and father, all the while saying the most terrible things about Ms. Birosh.

So he portrayed himself in the most favourable light and Ms. Birosh in a terrible light, none of which stood him in good stead as it related to his credibility. It simply made him look as if he was shading every event away from the truth and toward what he thought would help him on the stand. [ 11 ] I mention all of those things before I come to what to me is the critical factor in the credibility of Mr. Evans and it is this.

Obviously, when dealing with a person's credibility, one looks to see if they have been truthful, for if a person has not been truthful, then what is the basis on which to say that their evidence is truthful and you can rely on it and it is credible? If a person lies in one situation, then surely the inference is there for the taking that they are not credible in what they have to say to you and they are again lying. [ 12 ] Mr.

Evans was cross-examined on his prior statement to the police with regard to these events in which he was asked, "Were you ever at Ashley's house today?" On page 9, line 229, the answer, as I have it in my notes, is, "I haven't been at her house since August." That is in complete contradiction of his evidence that he gave before me that, in fact, on the day in question, he was at her house. So he lied to the police. [ 13 ] In amongst a series of evasive answers, it seemed that Mr.

Evans accepted that and said, "I was not prepared to give that information at that time." In other words, he acknowledged that he had lied to the police. [ 14 ] Most people view speaking with the police as something of some importance, importance in which it is expected that they will respond honestly to the police. That seems to be not too much to ask of citizens. It is something which Mr. Evans did not accept and seemed to feel that it was of no particular importance that he was prepared to lie to the police. [ 15 ] What made it even more important was him having been asked by Mr.

Weir in cross-examination, after an answer he gave to raise his own credibility and truthfulness, with the question, "Have you lied since August," to which he said, "No." Well, of course, his statement to the police occurred on the date of this offence in October and, of course, that tells me quite clearly that in his evidence before me, Mr. Evans, in saying he had not lied since August, was telling a lie. [ 16 ] I do not intend to chase my tail on this particular issue too long, only to say that it is quite clear to me that Mr. Evans has no credibility in what he has to say.

I reject in its entirety everything that he said. I could not rely upon anything that he says. What he says is not credible. [ 17 ] That brings me to the issue of the evidence of Ms. Birosh. Of course, the same kinds of considerations that I have applied to Mr. Evans are the same kinds that I apply to her and I apply to her evidence in determining whether it has sufficient credibility to found a conviction on Counts 1 and 2.

[ 18 ] I noted through her evidence that she was not in a hurry to portray herself as a person without any fault whatsoever. She admitted to her use of cocaine. She made a number of admissions which were not intended to put her in the best light possible. Nor did she seem to go out of her way, in light of all of the circumstances, to tear into Mr. Evans in the way that he had torn into her. That very much inured to her credibility.

But the point that really made the greatest impact with me was the extent to which her evidence did, indeed, accord with common sense. [ 19 ] Her evidence about what happened in the house, which I will return to, about the behaviour of Mr. Evans, and about how she was indicating that he should leave now, that it was time for him to go, and that he then thereafter left quickly and took off, all of which fit with the circumstances raised by the allegation in Count 3. Her description of his behaviour indeed, in my view, accorded with somebody doing their very best to tell me exactly what they recalled happening.

When I take into account all the circumstances as it relates to her evidence, I do believe her evidence, and I accept it. [ 20 ] That resolves the matter, in my view, as it relates to Count 2 with regard to the assault, but we come to one issue which is left as well and that is the issue of whether the acts testified to by Ms. Birosh constitute robbery or not. To do that, I need to make reference to what she said of the circumstances. [ 21 ] She testified that Mr. Evans came over with Aliya. He came over around dinnertime or just before. The daughter came through the door first. Mr.

Evans seemed agitated right away and ended up arguing with her shortly thereafter. He was starting to get really loud. She told him to stop yelling, that he had to go. "He wanted me to answer questions." "Why won't you drop the no contact order? Why don't you want to be with me?" He was swearing. "He then threatened to punch me in the face. He held his fist up." "I could punch you right now." She said, "You need to go right now." He shoved her in the hall a few times. "I believe he was pushing me with one hand the first couple of times and then two hands after that.

He then pushed me hard enough for me to drop the phone. He then grabbed the phone and ran across Blanshard Street and said, 'You won't see your kids again.'" She said she did not have a landline. She was asked if this push was different from the others and she said it was the hardest. "I lost my balance and dropped my phone. I went to grab my phone and he pushed me away from it." [ 22 ] She was cross-examined about these events by Mr. Jones and asked about the raising of the fist in the hallway and how he stretched over the stroller.

It was suggested that the push was not with much force and she said, "When he pushed me to get my phone, it knocked me off my feet. I was holding the phone the multiple times he pushed me. The last time he pushed me, the phone fell in the stroller." He had not asked for the phone. She agreed with the suggestion it was pretty impulsive to grab the phone and to take off with it. [ 23 ] So those are the circumstances surrounding the issue as it relates to the taking of the phone.

The issue is whether those facts justify a finding of robbery. [ 24 ] Robbery is defined in the Criminal Code -- [ 25 ] THE ACCUSED: Objection, though, Your Honour, please. [indiscernible/speakers overlapping] -- [ 26 ] THE COURT: -- in the following way under s. 343. Sub (

b) is the relevant section: Every one commits robbery who . . . steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; [ 27 ] That

section is quite broad in terms of requiring only that there be the contemporaneous events of stealing and personal violence in order to constitute the offence. [ 28 ] Mr. Jones, in his resourceful submissions, submitted that one had to look at the issue of intent, and if there was intent for just the assault and then there was separated, even though close in time, an intent for just a theft, but not for the assault, that that meant there was not the intent for an actual robbery. Naturally, that

interpretation is one that is, in part, based on the precept that a criminal law statute is to be interpreted quite strictly in order to determine the conduct falls within it. [ 29 ] In response to Mr. Jones's submission, the Crown argued that Mr. Evans wanted to get the phone because he had not got the evidence he was seeking against Ms. Birosh. In particular, Mr. Evans testified that he had looked at his computer in order to see if he could set it up to record a conversation he wanted to have with Ms. Birosh and get her to make certain admissions about her behaviour.

He was not able to do that, and as a result of not being able to get that recording working, the Crown asked me to infer that he was, shortly thereafter, and certainly at the time of the events in the hallway, really trying to get the phone in order to gather that evidence. [ 30 ] I am afraid I cannot draw that inference and the reason, why I do not draw that inference was that she had the phone in her hand the whole time and he was not going for it during any of that period of time.

That indicates to me that the phone was not, in fact, central to his thinking, and was not part and parcel of what he had in mind. [ 31 ] I am also persuaded by what Mr. Evans was saying at the time. He was not saying anything about gathering evidence. He was saying, "Why won't you drop the no contact order? Why don't you want to be with me?" That is more in accord with what Ms. Birosh said that he was trying to do. Namely, he was trying to have an argument and he wanted to win that argument. That certainly seemed to accord with the way Mr.

Evans answered questions in cross-examination. [ 32 ] In the circumstances, I am not prepared to infer that he had any intent to take the phone until that precise moment and that he, indeed, did pick it up. [ 33 ] So having dealt with that part of the submission, what is left? Well, what is left is this. Mr. Evans did push Ms. Birosh. She dropped the phone. On dropping the phone, he then picked it up and pushed her away at that time. Him pushing her away at that time is, in my view, sufficient to establish these actions should be considered as one action such that they should be considered a single offence.

[ 34 ] In my view, there is sufficient evidence, that satisfies me beyond a reasonable doubt, that there was the personal violence, and that there was the theft close enough in time that they can be interpreted to be the single act of robbery. [ 35 ] THE ACCUSED: Your Honour, [indiscernible/speakers overlapping] -- [ 36 ] THE COURT: That being the case, there is a finding of guilt on Count 1. [ 37 ] As I have said, I have already found him guilty of Count 2 and Count 3, so he is found guilty on the three offences before the court. (REASONS CONCLUDED)