R. v. M.S.B., 2021 BCPC 337

Citation: R. v. M.S.B. 2021 BCPC 337 Date: 20211220 File No: 239480-1K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. M.S.B. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: L. Helps Counsel for the Defendant: M. Shapray Place of Hearing: Surrey , B.C Dates of Hearing: August 17 and October 18, 2021 Date of Judgment: December 20, 2021

INTRODUCTION [ 1 ] The accused, M.S.B., by way of Information No. 239480-1K, is charged with two counts: Count 1 : that on or about December 8, 2019, at or near Langley, British Columbia, he did commit assault of R.S.K.B. (now known as R.D.), contrary to s. 266 of the Criminal Code ; and Count 2: that on or about February 14, 2020, at or near Langley, British Columbia, in committing assault of R.D., he did carry, use, or threaten to use a weapon or an imitation weapon, contrary to s. 267 (

a) of the Criminal Code . The accused pled not guilty to both counts. ISSUES [ 2 ] The issues to be determined in this case are as follows: 1. Did the accused commit assault of R.D., the complainant? 2. In committing assault of the complainant, did the accused carry or use a weapon? [ 3 ] The defence takes no issue regarding the accused’s identity, or the dates and location at which he is alleged to have committed these offences. That leaves the Crown to prove beyond a reasonable doubt the other essential elements of the offences the accused is charged with.

I will address these elements in my analysis. [ 4 ] I will first provide a brief background, and then describe the incidents that led to the charges the accused is facing. BACKGROUND [ 5 ] The complainant is an Optometrist, and she works at various locations in the Lower Mainland. [ 6 ] The accused is a Certified Professional Accountant. He works full time at a private accounting firm as a senior manager, and on a contract basis facilitating modules for the CPA Certification Program.

He also mentors CPA students. [ 7 ] I will refer to the accused and the complainant collectively as the “Parties.” [ 8 ] The Parties met in 2001 or 2002, dated for a number of years, and then got married on August 13, 2011. They have a five-year old son (“A.B.”), who was born in (omitted for publication). [ 9 ] The complainant described her lengthy relationship with the accused as “rocky” and “volatile.” They separated and reconciled numerous times. Their first formal separation was in 2013 and then their final separation was on April 10, 2020.

During these periods of separation, they would stay at their respective parents’ homes. [ 10 ] They both agree that they had communication issues. A significant source of contention in their marriage was the extent of time the accused spent with his side of the family (the “Paternal Family”) and his friends. [ 11 ] In February 2019, the Parties purchased a townhome in Langley, B.C. (the “Home”), and moved in together in April 2019. Soon after, they separated in mid-May 2019, but reconciled and moved back together again in October 2019.

They resided there as a family from October 2019 until their final separation on April 10, 2020. Even during this period, there were brief separations. [ 12 ] On or about April 23, 2020, the accused notified the complainant that he would be filing for a divorce. A number of family law proceedings ensued regarding the accused’s efforts to secure an equitable parenting

schedule with A.B. The accused was successful in these proceedings, despite the complainant’s objections. [ 13 ] I will now turn to the two incidents at issue, namely, the alleged assault on December 8, 2019 (the “December 8 th Incident”), and the alleged assault with a weapon on February 14, 2020 (the “February 14 th Incident”).

The December 8 th Incident [ 14 ] In the early afternoon of December 8, 2019, the Parties and A.B. went out to have their Christmas photographs taken, picked up a Christmas tree, came Home and started decorating it. [ 15 ] Early in the tree-decorating process, the complainant got upset when she noticed A.B. hanging up an ornament on the tree. From her perspective, this was the first Christmas they were spending together as a family.

She could not understand how A.B. would have known how to hang up ornaments, unless he had already done this with the Paternal Family when she was not present. [ 16 ] The complainant questioned the accused about this, and that triggered an argument between them. The accused then stepped outside the Home, onto the front porch. After a few minutes, he came back inside and put his arm over the complainant. He says he gave her a hug to diffuse the tense situation, whereas she claims that he squeezed her neck so hard that she could not breathe. This is the alleged assault, which is the subject of Count 1.

I will discuss this in more detail later. [ 17 ] The second incident is alleged to have occurred on February 14, 2020. The February 14 th Incident

[18] On February 14, 2020, soon after the Parties arrived Home from work, a verbal exchange ensued between them, allegedly overthe complainant’s disappointment over how that day, being Valentine’s Day, turned out, including the Parties’ failed Las Vegas trip,them not going out to eat that evening, and the accused having spent time, on February 13, 2020, with his sister who was visiting fromCalifornia. [19] The verbal exchange occurred on the main floor of the Home near the kitchen area, and lasted for about five or 10 minutes.

In hishaste to leave the unpleasant environment, the accused picked up the baby gate (the “Gate”) that was in front of where he was standingby the stairwell to the upstairs bedroom, and “tossed” it. It landed on the ground in the kitchen area. [20] The Parties disagree as to exactly where the Gate landed and where the complainant was standing when the Gate was thrown.The complainant alleges that the accused knew where she was standing and he threw the Gate at her. This is the alleged assault with aweapon, which is the subject of Count 2. I will discuss this in more detail later.

EVIDENCE [21] The complainant testified on behalf of the Crown, and the accused testified on his own behalf. [22] Of the photographs the Parties took on December 8, 2019, after their alleged assault, three (collectively, the “Photographs”) wereentered into evidence as Exhibits 1, 2 and 3 respectively. [23] A sketch of the layout of the main floor of the Home, where the alleged assaults are said to have occurred, was entered as anaide-memoire and marked as Exhibit 4. The Crown and the defence acknowledge that this sketch is not to scale, but that it shows thegeneral layout of the main floor of the Home.

LEGAL PRINCIPLES [24] The Crown and the defence submit, and I agree, that the following legal principles are relevant and applicable to this case: 1. The accused is presumed to be innocent at all times during a trial. 2. The accused cannot be found guilty unless, after considering all of the evidence, that guilt has been proved beyond a reasonabledoubt. 3. The burden of proof is always on the Crown and does not shift to the accused at any stage of the proceedings: R. v. Lifchus, (SCC), [1997] 3 SCR 320; R. v. Veeken, 2020 BCCA 54, at para. 16. 4.

In Lifchus, at para. 36, Cory J. writing for the majority, summarized the principles surrounding proof beyond a reasonable doubt asfollows: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials,the presumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense; • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guiltymust acquit. 5.

When an accused testifies, the Supreme Court of Canada has set out a test for how a trier of fact is to assess the evidence in a trial. InR. v. W.(D.), (SCC), [1991] 1 SCR 742, the court set out a model charge to the jury on the issue of credibility andreasonable doubt where there is evidence from the accused, at p. 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, 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 whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 6. In R. v. Ay, (BC CA), [1994] BCJ No. 2024, the British Columbia Court of Appeal reiterated this test (which hadbeen further considered by the BCCA in R. v. H.(C.W.), (BC CA), [1991] 68 C.C.C. (3d) 146), at para. 72:

a) If they believe the accused they must acquit.

b) If they do not know whether to believe the accused or the complainant, they must acquit.

c) If they do not reject the evidence of the accused, they will have a reasonable doubt and must acquit.

d) If they disbelieve the accused, that is, if they reject his evidence as untrue, they have to be convinced beyond a reasonable doubt of the guilt of the accused on the whole of the evidence before they could convict. 7. It is an error of law for a trial judge to subject the evidence of the defence to more rigorous scrutiny than the evidence of the Crown: R. v. Roth , 2020 BCCA 240 , at para. 47 . [ 25 ] I will now turn to the discussion of the issues at hand. DISCUSSION 1. Did the accused commit assault of the complainant? Section 265(1) (

a) of the Criminal Code provides that: 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; [ 26 ] The Crown must prove beyond a reasonable doubt that the accused intentionally applied force to the complainant, without her consent. [ 27 ] I will first provide a

summary of the Parties’ evidence regarding the December 8 th Incident. The complainant’s evidence: [ 28 ] In the early afternoon on December 8, 2019, the Parties and A.B. came Home after having their Christmas photographs taken, and picking up a Christmas tree at Home Depot and some beer. This was the Parties’ first Christmas together as a family after their reconciliation. The complainant wanted to make it a joyous and memorable experience for A.B.

She put on Christmas music and brought out the Christmas decorations. [ 29 ] The accused had already been drinking, and “he was quite intoxicated.” He seemed to be “angry, in a bad mood, and not involved in the tree-decorating process.” The complainant tried to get him to be more involved. [ 30 ] She noticed A.B. grab a hook and an ornament, and place it on the tree. He already knew how to place the ornament on the tree.

She turned to the accused and asked, “did you guys already decorate your Christmas tree with your own family?” Initially, the accused said, “no,” but when the complainant asked him over and over again, he said, “ya, we did.” [ 31 ] At that point, the accused “flipped” and started to yell and scream at the complainant with “rage.” He then “stormed” out of the Home. After a few minutes, he came back into the Home. The complainant was untangling the Christmas lights and A.B. was in front of her, close to the tree.

The accused came up from behind her, put his right arm around her neck, in a V-shape with his elbow around her, and squeezed it so hard to the point she could not breathe. His arm was around her neck for about four or five seconds. She pulled his arm away, and asked him, “why did you do that?” He did not say anything, and backed away by the door. [ 32 ] The complainant was in “complete shock,” “emotional” and “in pain.” She ran upstairs. She was upstairs for about five to 10 minutes. She was worried about damage to her throat.

So, she took out her phone and googled “damage to throat.” [ 33 ] After a few minutes, she came downstairs. Her voice was “hoarse” and “raspy.” She could not eat the pasta she made for dinner. She told the accused that her throat was in a lot of pain and that she was having trouble swallowing. He said, “you’ll be fine.” [ 34 ] To her mind, this was not an accident. She was disappointed that he did not express any remorse for what he did. She did not call the police because the Parties had gone through a lot, they had just reconciled, and she was trying to make that day a good experience for A.B.

Also, in light of the past difficulties with the accused, she had become “numb” and learned to suppress everything. [ 35 ] The complainant sought medical treatment three days after this incident. Her throat hurt for about three weeks. She had to see an ENT (Ear, Nose and Throat) specialist, and she still has ongoing issues. The accused’s evidence: [ 36 ] The complainant was upset that A.B. already knew how to hang an ornament on the tree, when they, as a family, were decorating the tree for the first time. She questioned the accused as to where A.B. learned to do this.

She was also upset over the accused taking videos and photographs of A.B. and the family decorating the tree, and alleged that it was the accused’s plan to distribute them to other people. That was not the accused’s plan at all. He was taking them merely for their own use and for their future memories. The complainant expressed anger and frustration towards the accused for these reasons.

The accused has frequently seen the complainant’s mood change very quickly over minor issues. [ 37 ] To diffuse the situation and to avoid A.B. witnessing their argument, the accused stepped outside the Home onto the front porch, but then came back into the Home after a few minutes, as he did not want to let “one silly argument” affect a happy evening together as a family. [ 38 ] When he came back in, A.B. was still decorating the tree, and the complainant was to his right. In an effort not to escalate the tense situation, the accused gave the complainant a hug.

The complainant was standing adjacent to him on the right, and he put his right arm on her right shoulder. He did not bring his arm across her neck. His right arm hung down on her right shoulder. He did not put any force or pressure against her body. The hug lasted perhaps “two to three seconds.” He just gave her “a friendly hug, a loving hug” so that they could move on with the evening and not let something “so trivial” ruin the evening.

[39] However, when the complainant told the accused that he hugged her too hard, he immediately apologized. He did not think thathe did anything wrong, but he still apologized to diffuse the situation. She did not tell him that she could not breathe. She did not ask himto take his arm off. [40] The complainant did not say anything. She went upstairs for about five to 10 minutes. The accused and A.B. continued todecorate the tree. When the complainant came downstairs, she did not say anything. She just joined in the tree-decorating.

The mood wasnot “happy,” but it was “generally okay.” [41] The accused did not see any visible mark on the complainant’s neck or see her having any difficulty breathing. [42] The complainant expressed an interest in taking photographs after the tree-decorating process that ended at about 8:00 p.m. So,they took some photographs. By that time, the general mood of the family was back to being “happy.” They had dinner together, andthen the evening ended without any issues. [43] Contrary to the complainant’s allegations, the accused:

a) was not intoxicated before they arrived Home that afternoon;

b) was not heavily intoxicated during that afternoon and evening;

c) did not “flip a switch and explode with rage” when asked if A.B. had done tree-decorating with the Paternal Family;

d) did not swear or call the complainant names, including “bitch;”

e) did not storm out of the Home;

f) when back in the Home, did not approach the complainant from behind or use his right arm in a V-shape to squeeze around her neckto the point of her not being able to breathe; and the complainant did not pry his arm away from her “to save her life.” [44] The Seahawks were playing that afternoon. The accused was enjoying a beer, while decorating the tree in the dining room. Hehad an eye on the game on the television in the background, in the living room. He had one beer while decorating the tree, and one moreat the end of the night.

He had a total of two beers during a span of about four hours, and did not feel any impact from those two beers atany point during that evening. He was fully coherent when he took the Photographs. Throughout the tree-decorating process he wastaking videos and photographs of the family.

He described the mood to be “generally very happy.” [45] Even though the complainant had described in a sworn statement (in one of their family law proceedings) that the accused hadtried to “kill her in front of her son,” suggesting “strangulation to the point of not breathing,” (which defence counsel characterized as“attempted murder”), no such thing happened. [46] I will now turn to the second issue. 2. In committing assault of the complainant, did the accused carry or use a weapon?

Section 267(

a) of the Criminal Code provides that: 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of anoffence punishable on

summary conviction who, in committing an assault,

a) carries, uses or threatens to use a weapon or an imitation thereof, The term “weapon” is defined in s. 2 of the Criminal Code as follows:

Definitions 2 In this Act, Weapon means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person . . . [47] The Crown must prove beyond a reasonable doubt that the accused, in committing an assault against the complainant, carried orused a weapon, namely, the Gate. [48] The actus reus of assault with a weapon is the same as that of the offence of common assault but includes the additional act ofusing or threatening to use a weapon. [49] An intention to throw an object without an intention to throw the object at someone is not sufficient mens rea: R. v. Vandergraaf, (MB CA), 93 CCC (3d) 286.

[ 50 ] The following is a

summary of the Parties’ evidence regarding the February 14 th Incident. The complainant’s evidence: [ 51 ] The complainant had worked all day and had just come Home.

She was hopeful that it would be a good day, celebrating Valentine’s Day as a family, considering what they had gone through in the past. [ 52 ] However, the accused was “angry” and was “in a bad mood.” “It was almost like he was looking for a fight.” He said, “here’s a pizza; your card is upstairs.” [ 53 ] The complainant was “shattered.” She went upstairs and saw the card, and there was “barely anything written on it.” [ 54 ] The complainant went back downstairs. She was not happy and was emotional. That “set off” the accused.

He asked, “what’s your problem?” She did not have much to say, but “he could read that they were not going out to eat on Valentine’s Day, and that was all that took for him to blow up” at the complainant in a “rage,” swearing at her and calling her names. He said words to the effect that he does so much for her, but nothing is ever good enough for her. [ 55 ] He then went over to the Gate, “ripped” it off the wall and threw it towards the complainant. She had to “move out of the way.” The Gate hit the wall and landed on the floor, to her left.

There was damage on the wall where the Gate hit. [ 56 ] A.B. was standing next to her. The Gate did not hit either of them. [ 57 ] The accused was yelling and swearing at the complainant, and then he “stormed” out of the Home. [ 58 ] The complainant did not call the police that day. She told the police about this incident when she was giving a statement to them after the Parties’ final separation in April 2020. The accused’s evidence: [ 59 ] Both the accused and the complainant had just come home after a long day’s work. The complainant initiated an argument about their trip to Las Vegas.

They had booked a trip to Las Vegas to see Mariah Carey at the end of February 2020. The accused made it clear to the complainant that because of their financial constraints, their trip to Las Vegas would be the “so-called” celebration for Valentine’s Day. The trip cost him about $500 to $600. The complainant purchased the tickets for the Mariah Carey show, at a cost of about $350. So, on Valentine’s Day, he did not have a Valentine’s Day gift or whatever gift that the complainant may have been expecting.

He had a huge financial burden relating to the Home, which he had been shouldering for the most part. [ 60 ] The thrust of the Parties’ arguments that day revolved around the complainant’s disappointment with the accused not doing anything to celebrate Valentine’s Day to the standard she was likely expecting. It did not matter to her that the Parties had other expenses to deal with, and a trip to Las Vegas had already been planned to celebrate Valentine’s Day. She was also upset with the accused spending time with his sister the day before Valentine’s Day.

His sister was visiting from California at that time; so, he had lunch with her on February 13, 2020. [ 61 ] The argument escalated very quickly, with the Parties’ tone getting loud and unpleasant. The complainant was yelling at the accused. He repeatedly asked her to stop to prevent the argument from escalating further, but she would not stop. He was getting upset and frustrated. He was not able to handle the situation, and he wanted to leave. [ 62 ] At that time, he was standing close to the access to the upstairs bedroom stairwell. The Gate was attached to the wall near that access.

It was held by tension and was not screwed into the wall. There was a bracket on the top side, but it was not functioning properly. [ 63 ] On his way out, he grabbed the top of the Gate with his left hand and tossed it to his left in frustration. [ 64 ] At that time, A.B. was on his iPad in the living room. The TV was on. The complainant was standing between the kitchen and the island in the kitchen (the “Island”), and not by the fridge. [ 65 ] The Gate came off easily, as it was already off its brackets. As he was leaving, he saw the Gate lying on the ground near the Island and the dining area.

The Gate weighed about five to 10 pounds. It might have hit the Island and landed adjacent to the Island. [ 66 ] He then left the Home and drove to his parents’ home. [ 67 ] The accused threw the Gate in frustration. He “did not intend to, or hit, or project it towards” the complainant. The Gate did not go airborne. It went off the bracket, along the ground and fell down. [ 68 ] He returned Home the next day on February 15, 2020. He saw the Gate put up against the wall between the dining area and the main entrance.

He did not see any damage from the Gate to any walls. [ 69 ] The Parties did not discuss the February 14 th Incident after that day. [ 70 ] I will now turn to the analysis of the issues in this case. Analysis [ 71 ] As is evident from the Parties’ evidence I have summarized above, there were contradictions in how the Parties perceived and described the two incidents at issue. [ 72 ] In my view, in this case, the larger context in which these two incidents occurred is telling of how the Parties likely perceived the

two incidents; particularly, how the complainant perceived them. [ 73 ] The complainant’s

interpretation of the two incidents seems jaded, and not in line with reality or even reasonable probability. This is not to say that she was making up any of her evidence, or diminish or dismiss the emotions she experienced. It may be that because of her lengthy “rocky” and “volatile” relationship with the accused, she truly believes that the accused committed the offences she alleges. Or, perhaps, as defence counsel argued, this may be the complainant’s “weaponization of the matrimonial proceedings in the criminal courts.” I certainly hope the latter is not the case.

If it is, she risks being considered as not acting in the best interest of A.B. [ 74 ] Regardless of the complainant’s ulterior motive, the evidence in this criminal proceeding is all I can consider, and it is clear. In assessing the evidence as a whole, I am satisfied that the complainant’s perceptions, beliefs, assertions and allegations regarding the two alleged offences are not supportable. Proof beyond a reasonable doubt is required for conviction. [ 75 ] I do not agree with the Crown’s submission that the accused was not a credible and reliable witness. [ 76 ] Crown counsel said:

a) there were inconsistencies in the accused’s evidence;

b) the accused insisted that he was only “frustrated,” and would not admit to being “angry,” and that this is a marker of the accused’s evidence as a whole;

c) the accused testified to only those things that he thought would make him look moderate and reasonable, but stopped short of answering questions he thought could hurt him;

d) the accused minimized a number of his actions;

e) the accused failed to make reasonable concessions regarding the evidence;

f) at times, the accused was defensive in his testimony;

g) the complainant testified in a straight forward manner; and

h) she was subjected to rigourous cross-examination, but she did not enlarge or evade any question put to her. [ 77 ] With all due respect to Crown counsel, I do not agree with any of these assertions. [ 78 ] I found the accused to be a credible and reliable witness. While I would not categorically say that the complainant was not a credible witness, I found her evidence to be slanted (mostly in her favour) and inconsistent in some respects.

As a result, I find her evidence to be unreliable. [ 79 ] I am satisfied that the Crown has not proven beyond a reasonable doubt the elements of the two offences the accused is charged with. I come to this conclusion for the reasons I discuss below. [ 80 ] The accused’s evidence was consistent and was not shaken under cross-examination. It was not contrived or illogical. It had an air of reality. [ 81 ] The accused was candid and forthright. His memory was appropriate in relation to the passage of time. When he could not remember something, he said so.

For example, when asked what brand of beer he bought on December 8, 2019 or what he ate for lunch that day, he said he could not remember. Understandably so, as these are not important details. However, he has put his mind to the facts surrounding the serious allegations of strangulation and assault with a weapon that the complainant has made against him. As I said, his evidence regarding these matters were consistent and had an air of reality. He did not make any bald assertions or bald denials. [ 82 ] He was honest in admitting to many facts, including those possibly adverse to his interests.

The following are a few examples:

a) The Parties had significant communication issues in their relationship.

b) Both of them have yelled and screamed at each other, including during the February 14 th Incident.

c) At times, the accused would be the instigator of an argument.

d) Both of them cared about A.B., and tried to keep any stress in their marriage away from A.B.

e) Both of them made sacrifices emotionally to save their marriage.

f) The accused regularly drank on the weekends. So did the complainant.

g) The accused watches most Sunday night football games. On December 8, 2019, he started to consume a beer, as he started watching the game. He had no reason to be counting the beers while he was watching the game.

h) The Parties had “highs” and “lows,” but there was some stability, and they made “16 to 17 years of memories.”

i) On February 14, 2020, the accused lost his cool, pulled the Gate off the wall, and threw it in frustration.

j) When asked whether “it’s reasonable to expect that if you throw a gate in someone’s direction, they could be hit by it,” he said, “I suppose, yeah.” But he categorically denied that he intended to, or hit, or throw the Gate at, towards, or in the direction of the

complainant to injure her. He said, “I just tossed it and it went where it went. I didn’t choose for it to go forward or left or right, like, I was just frustrated. That’s all it was.”

k) When asked, “you had to give it some force to make it halfway across the room,” he said, “a little bit, yes.”

l) When asked, the “baby gate being five or 10 pounds, . . . you wouldn’t want to be hit with it, . . . throwing a gate could cause someone injury, . . . ?” He said, “correct.” [ 83 ] However, the complainant, constantly cast blame on the accused for the difficulties they had in their marriage. She described her marriage to the accused as “rocky” and “volatile,” and that she endured “a lot of abuse.” She refused to take, or even acknowledge, any responsibility for her role in the issues the Parties had in their marriage. When cross-examined about this, she:

a) denied she had any personality or communication issues that caused problems in the Parties’ marriage;

b) said she tried to communicate well with the accused, but she was blocked from doing so due to the accused’s inability to communicate with her;

c) denied she got very upset or angry whenever she felt a level of disappointment (that is, when something was not what she wanted it to be or perceived it to be) over issues in the Parties’ marriage, including the two incidents at issue. Regarding the two incidents, she said she was “emotionally upset,” but not “angry;”

d) denied having significant mood swings throughout the Parties’ marriage;

e) denied throwing items, such as kitchen utensils, items from the pantry, TV remotes, toys or shoes at the accused when she was upset or angry;

f) denied manipulating her role and responsibility for the issues in the Parties’ marriage for purposes of the Parties’ family law proceedings;

g) denied the accused has been a good father to A.B.;

h) denied aggressively trying to stop the accused from having parenting time with A.B., no more than she was prepared to allow him to have; and

i) reluctantly admitted that the accused was successful in family court in getting more parenting time with A.B. [ 84 ] Given the evidence regarding the Parties’ tumultuous relationship, many of these denials by the complainant appear to be self- serving. It takes two to tangle. No marriage is perfect. I doubt anyone knows of any marital relationship that is void of disagreements and arguments. I reject the complainant’s portrayal that she played no

part in the difficulties the Parties had in their marriage. [ 85 ] Insofar as the two incidents at issue are concerned, there were many inconsistencies and concerns with the complainant’s evidence. I will discuss a few of them below. [ 86 ] Initially the complainant said, on December 8, 2019, after picking up the Christmas tree, the Parties stopped at a liquor store, where they always go, to pick up some beer, and that the accused was drinking prior to them getting Home.

However, later in her testimony, she said she does not recall going to a liquor store or whether the accused had anything to drink before they got Home. She admitted that the accused was not intoxicated when he was driving the family back Home. Parts of this evidence is inconsistent with the accused’s evidence.

He admitted that they did stop at a “wine and beer” store to pick up some beer, but that he did not have anything to drink until they got Home. [ 87 ] The complainant said the accused was drinking in the Home; he had a beer with him throughout the tree-decorating process; and he was becoming “more and more intoxicated.” She could not say how many beers the accused had, but she went on to say that “he was exhibiting symptoms of intoxication.” She was evasive when asked about what symptoms she noticed.

She generalized and said, usually after about two or three beers, he would get angry, and would curse and call her names. This evidence is directly contradictory to the accused’s evidence that he only had one beer until the end of the tree-decorating process, and that he had one more at the end of the night, after the family took the Photographs by the decorated tree. [ 88 ] When put to her that there was nothing unusual about the accused having a beer or two when watching the football game on TV, which he said he usually did on Sundays, she disagreed.

Her response was inconsistent with the accused’s evidence, including the fact that both of them drank on the weekends. [ 89 ] The complainant initially said the accused was “very intoxicated;” however, when asked whether she noticed him having trouble with his balance when he got back into the Home from the front porch after their argument, she said, she cannot say that he did.

She said he was just leaning against the door, “looking mad.” The accused said that he was not intoxicated and that he came back in and gave her a friendly hug. [ 90 ] The defence argued that the Photographs do not indicate any external signs of the accused’s intoxication that evening, and that the court can take judicial notice that the accused appears “stone cold sober” in the Photograph in which he appears (Exhibit 3). The defence elaborated that the accused’s eyes are not red or bloodshot; his pupils are not dilated; and his skin is not flushed or pale.

On this point, I agree with the Crown that the court is not qualified, and cannot accede to the extent of the defence’s submission simply by looking at one photograph, in which the accused appears. His eyes are not even visible enough to make any observation, let alone redness, bloodshot or dilation. [ 91 ] Regarding the argument on December 8, 2019, the complainant first said it lasted about 15 to 20 minutes, but soon after

minimized her role in the verbal exchange and said, “I was not arguing with him. I was just asking him questions regarding [A.B.] learning to hang up ornaments.” She said she was trying to have a “conversation” with the accused, but he got angry. Earlier in her testimony, she said she “repeatedly” questioned the accused about how A.B. learned to hang up ornaments.

The complainant does not seem to appreciate that she triggered this verbal exchange, and that it was not a normal conversation, but an argument, as she was challenging the accused to the point that he got frustrated and left the Home to the front porch to escape the tense situation. [ 92 ] The complainant said that the accused was not involved in the tree-decorating process at all, and that he was standing by the Island, drinking his beer, whereas the accused said he was fully engaged in the tree-decorating process from the beginning until the end, including taking videos and photographs throughout the evening.

She denied that the accused and A.B. were dancing around, and the mood was good in the Home, which the Photographs seem to depict. [ 93 ] When asked whether she was also upset that evening because she thought the accused was taking videos and photographs of the family and sending them to other people, she first denied, and then later said she could not recall. [ 94 ] Regarding the alleged strangulation, the complainant said the accused had her in a “chokehold.” The defence argued that the Photographs, do not show any signs of external trauma, such as signs of redness, scratch or marking on the complainant’s neck. [ 95 ] The complainant acknowledged that she had no discoloration or marks on her neck, her neck did not go pale, and she did not lose consciousness.

She said there was no “external” damage but there was “internal” damage, and that her “voice box” was damaged. It is difficult to assess the veracity of this evidence, as there is no medical evidence before the court in this respect. [ 96 ] The complainant admitted that she had stated in other sworn statements that the accused tried to “kill her in front of her son.” However, after this alleged violent attack, she came downstairs, finished decorating the tree with A.B. and the accused, and took the Photographs in front of the decorated tree, in which the Parties are smiling.

The three of them then ate dinner together as a family. There were no other issues that evening.

A few days later, on December 13, 2019, they attended a Christmas concert at A.B.’s school, as a family. [ 97 ] In spite of the December 8 th evening ending smoothly, the complainant maintained that she was not happy and that her smile in the Photographs was “a fake smile.” [ 98 ] I reject the complainant’s assertion that the accused’s smile was also a “fake smile” and the Crown’s argument that the accused was putting on a “happy face” for A.B., when in fact he was “angry” at the complainant. [ 99 ] The evidence indicates that the Parties’ relationship was tumultuous throughout their marriage, but they kept trying to reconcile and live a happy life.

They acknowledge that they made “memories” during their relationship. In my view, even if the Photographs were not in evidence, it would not have made any difference in my conclusion of this matter, as the overall evidence is nowhere near meeting the threshold of “beyond a reasonable doubt” to find the accused guilty. [ 100 ] In light of the overall evidence, the complainant’s sworn statement that the accused tried to kill her in front of her son is troublesome.

If the accused truly was trying to kill her, and she truly was fearful of him, I doubt that she would have continued to reside with him for another four months. She could have left the accused, as she had done in the past during the Parties’ marriage. It is noteworthy that the accused ended their relationship and not the complainant.

The complainant’s sworn statement appears to have been exaggerated, and it lends credence to the defence’s argument that she was manipulating her evidence as to what actually happened during the December 8 th Incident to gain an advantage in the Parties’ family law proceedings. [ 101 ] Regarding the February 14 th Incident, in spite of the police asking the complainant to provide all the details of that incident, she did not provide any details to the police or the Crown about the pizza or the Valentine’s Day card she testified to at trial.

In her interview with the police on April 27, 2020, she had only said “we had a disagreement of some sort.” The additional details about the pizza or the Valentine’s Day card were not contained in her subsequent sworn statements of December 4, 2020 or March 5, 2021. She also did not inform Crown counsel of these details during her pre-trial preparation on June 9, 2021.

She denied that she was making up these details during the trial. [ 102 ] When questioned about the argument on February 14, 2020, she said it was not an “argument,” but was a “discussion.” And yet, she alleges that it was during this “discussion” that the accused got so angry that he became “verbally abusive” and he “ripped” the Gate off the wall and threw it at her. The accused, on the other hand, admitted that he was upset and frustrated, and both of them were yelling and screaming at each other.

Again, her perception of a “discussion” appears highly distorted. [ 103 ] When questioned about her becoming upset because the accused did not meet her expectations for Valentine’s Day, she said she was not upset, but was more “emotional,” and that that set off the accused into a rage. This appears to be yet another example of the complainant portraying herself in a sympathetic position, and vilifying the accused. [ 104 ] The complainant said she did not recall that the accused’s sister was visiting from California. She denied that she was upset with the accused for spending time with his sister from California.

She denied being jealous of the accused spending time with the Paternal Family, although the evidence suggests that that was a significant trigger for the marital discord between the Parties, including the December 8 th Incident. [ 105 ] Under cross-examination, the complainant elaborated on the February 14 th Incident. She said she was standing in the kitchen area to the left of the Island beside the fridge, and not behind the Island. She was looking at the accused’s back. A.B. was standing to her right.

The accused “stormed” from the Island towards the Gate, grabbed the top of the Gate with both hands, and “in one motion ripped it and threw it across the room and not behind him.” She said, he turned around with the Gate, and threw it to his right across the room, and he knew exactly where the complainant was standing. When asked again to clarify, she said, “he knew where I was standing and when he grabbed the gate he was not just looking forward; he turned his body towards me and the gate was thrown.”

[ 106 ] She said the Gate hit the pony wall to the left of where she was standing, and landed on the floor beside the fridge. [ 107 ] When questioned on how, what she was describing was possible – that is, if the accused threw the Gate to his right in one motion that would have been towards the living room and the Island, and there was no way that it could have landed near the fridge – she disagreed. She said the sketch in Exhibit 4 is not accurate, and that the layout of the main floor of the Home is different.

Even if that were the case, the difference in the Parties’ evidence as to where the Gate landed appears to be only a matter of a few feet, be it in the same direction. [ 108 ] In her evidence in chief, the complainant said there was damage to the wall, but later in cross-examination, she said there was no damage that she could see. The accused also said he did not notice any damage to the walls when he returned Home the next day on February 15, 2020. [ 109 ] What is troubling is the complainant’s adamant assertion that the accused “intended” to throw the Gate towards her, which, the accused, of course, denies.

I agree with defence counsel that the complainant cannot speak to what the accused’s intention was. [ 110 ] The complainant’s evidence was replete with examples of her subjective view of the accused’s emotional and mental state at various points in time. The following are a few examples of her expressions that I have already discussed above:

a) the accused was “angry,” “in a bad mood,” and “it was like he was looking for a fight;”

b) the accused “flipped a switch and exploded with rage;”

c) the accused had a “fake smile;”

d) the complainant was not happy and was emotional, and that “set off” the accused; and

e) the complainant did not have much to say, but “he could read that they were not going out to eat on Valentine’s Day, and that was all that took for him to blow up” at the complainant in a “rage,” swearing at her and calling her names. [ 111 ] As I said, throughout her testimony, the complainant tended to vilify the accused. While she can speak to the behaviour the accused allegedly displayed towards her, she cannot speak to what was in the accused’s mind to have caused him to behave in the way she alleges he did.

Her assumptions or perceptions of why he may have behaved in the way he allegedly did appear to be problematic, and are not in line with the overall evidence. [ 112 ] I agree with defence counsel that the complainant “essentially painted herself in a favourable light with respect to her subjective view of her own marital behaviour which . . . was through rose-coloured glasses and was not realistic.” [ 113 ] The context in which the December 8 th Incident is said to have occurred, both before and after the alleged assault, is important.

After a period of separation, the Parties had reconciled and had moved into the Home in October 2019. Within a matter of a few weeks, they were out together as a family taking Christmas photographs, picking out a Christmas tree and decorating it, with Christmas music playing. In this context, they have an argument. The accused called the argument “silly” and “trivial.” After the alleged assault, they finish decorating the tree, take smiling Photographs, have dinner together, and continue to live in the Home as a family.

Between December 2019 and April 10, 2020 (their final separation), they had further discord, including the February 14 th Incident. The complainant said the accused was in and out of the Home during this period. [ 114 ] Neither the December 8 th Incident nor the February 14 th Incident was brought up as an issue until the accused notified the complainant towards the end of April 2020 that he was intending to file for divorce. [ 115 ] The evidence indicates that in the history of the Parties’ lengthy relationship, they experienced many “lows,” including the Parties being verbally abusive towards each other.

The evidence also indicates a pattern of behaviour by the accused whenever the situation with the complainant got too much for him and he was unable to deal with it – that is, he would leave the difficult situation with the complainant, and often take respite in his parents’ home. That is precisely what he appears to have done when he was faced with the two incidents at issue. [ 116 ] On December 8, 2019, he went out into the porch to escape the tense situation. He considered the December 8 th argument “silly” and “trivial” and was trying to diffuse, and not escalate, the situation.

Under repeated cross-examination, he said he was “frustrated” but not “angry.” Even if this had not been a “silly” or “trivial” argument, and the accused was not just “frustrated” but was “angry,” I am not convinced that he would have gone into the Home and assaulted the complainant by knowingly applying pressure to her neck or, as the complainant seems to have alleged, “strangled” or attempted to “kill” the complainant. [ 117 ] I agree with the defence that the complainant’s evidence painting a picture of the accused as a drunk and an uninterested husband who was not part of the family event, and that the December 8 th Incident was fueled by the accused’s intoxication is undermined by the overall evidence in this case. [ 118 ] I agree with the Crown that the issue surrounding the accused’s alcohol consumption on December 8, 2019 is a bit of a “red herring.” [ 119 ] However, I disagree with the following submission by the Crown: . . . in all of the circumstances of this case, whether he was incredibly intoxicated or had only had a beer, it doesn’t matter because what you have is someone who was angry enough to leave the house and take a walk, won’t admit that they’re angry where that’s concerned, comes back in and without a word and on Ms.

D’s version, puts his arm around her neck, not around her arm in a hug, but around her neck and squeezes. . . . it’s far more likely especially considering the height difference that that’s exactly what happened.

[ 120 ] I have already discussed at length why I do not find the complainant’s version of events reliable. [ 121 ] The evidence indicates that the accused is an educated, hard-working professional who is gainfully employed. He is engaged in and mentors others in his profession. He bore the better part of the family’s financial burden relating to the Home, at least for a period of time. He presumably is a loving father to A.B., considering his repeated efforts seeking additional parenting time with A.B. He has a close relationship with the Paternal Family.

He admitted responsibility for his role in the Parties’ difficult relationship. He, and I should add the complainant, tried their best for almost two decades to make their marriage work. As the accused put it, they made “16 to 17 years of memories.” And that is what they were trying to do on December 8, 2019 – make more memories.

Unfortunately, they did not succeed and their marriage failed. [ 122 ] Furthermore, given the Parties’ historical context and the events that transpired on and after December 8, 2019, as I have discussed earlier, it is simply incongruent that the accused would have assaulted the complainant. I am satisfied that the actus reus and the mens rea of the alleged assault on December 8, 2019 have not been made out. [ 123 ] As I have already discussed at some length, there are a number of internal and external inconsistencies in the complainant’s evidence.

Her evidence regarding the February 14 th Incident is particularly troublesome. [ 124 ] I agree with the defence’s submission that it is simply physically not possible for the Gate to have travelled across the room in the way the complainant described.

The accused could not have pivoted to the right, flung the Gate all the way around him towards the complainant causing her to duck, and then the five-to-10-pound Gate hitting the wall without causing any damage, and landing on the floor by the fridge. [ 125 ] The defence pointed out that there is no corroborative evidence such as photographs of any damage, or proof of repair. I agree with the Crown that there is no requirement for any corroborative evidence, but obviously it can be helpful where there is such evidence.

However, this is a non-issue, as the complainant admitted that there was no damage to the wall. [ 126 ] Even if for the purposes of argument, I accept that the actus reus of the alleged assault with a weapon on February 14, 2020 was made out, I am not at all convinced that the mens rea of that alleged offence has been made out for the same reasons I have discussed above regarding the December 8 th Incident. [ 127 ] Also on February 14, 2020, the accused left the Home to get away from a tense situation he said he could not deal with.

I highly doubt that he formed the intention to, as the complainant put it, rip the Gate and throw it at or towards her with the intention of injuring her. [ 128 ] In this respect, Crown counsel, after prefacing that the accused would not admit to being angry, said, “[it] is incredibly telling and there is no other reason to wrench something out of the wall and throw it in the general direction of your spouse than if you have an intent to assault . . . if it wasn’t, he would have thrown it forward or backward or to the side, but he did not.

He had three other directions to throw that gate and instead it lands up on the same general side of the kitchen as her.” She went on to say, “the only reason to toss a baby gate in someone’s general direction is to use that as a weapon and to assault them.” [ 129 ] Again, I respectfully disagree with this argument and conclusion. [ 130 ] What the evidence indicates, and what I find is reasonable, and what likely happened is exactly the way the accused explained it.

He was frustrated; he could not deal with the situation as the complainant was yelling at him; he just wanted to leave; and in the spur of the moment, he pulled the Gate with his left hand and tossed it to his left, and headed towards the main entrance which was to his left.

He did not see how or where the Gate was travelling, but as he was leaving when he turned backwards to close the door, he saw the Gate lying on the ground between the Island and the dining area, at the location marked with an “X” on Exhibit 4. [ 131 ] Based on the evidence before me, I find that the accused did not intentionally apply any force or pressure to the complainant’s neck on December 8, 2019, and he did not throw the Gate at or towards the complainant with the intention of causing her any injury. I am satisfied that the accused did not commit the alleged assaults or use the Gate as a weapon.

CONCLUSION [ 132 ] In conclusion, having accepted the accused’s evidence and found that he did not commit the alleged assaults or use the Gate as a weapon, I acquit him on both counts on Information No. 239480-1K. By the court _____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia