R. v. D.L.M., 2023 BCPC 261

Citation: R. v. D.L.M. 2023 BCPC 261 Date: 20231129 File No: 28726 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. D.L.M. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: M. Campbell , J. Johnston Counsel for the Defendant: T. Zipp

Place of Hearing: Quesnel , B.C. Dates of Hearing: May 17, 18, 19, July 31, 2023 Date of Judgment: November 29, 2023 INTRODUCTION [ 1 ] D.L.M. (“D.M.”) is charged under Information 28726-1-K, that on February 17, 2022, at or near Quesnel in the Province of British Columbia, he assaulted J.E.J. (“J.J.”) contrary to s. 266 of the Criminal Code . At the time, D.M. and J.J. owned and shared a residence in Quesnel. The offences are alleged to have occurred while they cohabitated in that residence after an argument about their living arrangements.

J.J. claims that D.M. became angry and assaulted her when she announced her intention to relocate. D.M. denies having assaulted J.J. and suggests she fabricated her story to deflect blame after running him over with her Jeep and leaving the scene. Issue: Has the Crown proven beyond a reasonable doubt that D.M. assaulted J.J. on February 17, 2022, in Quesnel, BC? EVIDENCE [ 2 ] I heard from J.E.J. on behalf of the Crown and D.L.M. on behalf of the defence. I received into evidence the following exhibits: EXHIBIT 1 : Photograph 1 of the hallway in the Residence which J.J. has marked up.

I understand this photograph was taken by Constable Arnason on the evening of February 17, 2022; EXHIBIT 2: Photograph of J.J. ’s Jeep on which J.J. has written. EXHIBIT 3 : Photographs 3 to 9, inclusive, which J.J. has indicated where on her body there was redness as a result of the altercation.

These photographs were identified as taken by Constable Arnason on February 17, 2022; EXHIBIT 4 : Crown's booklet of ten photographs , all of which I assume were taken by Constable Arnason on the evening of February 17, 2022; EXHIBIT 5 : One page containing three text messages from D.M. to J.J. , the last one being sent on at 5:52 p.m. on February 17, 2022; EXHIBIT 6 : A diagram sketched by J.J. showing the initial position of her and D.M.’s respective vehicles; EXHIBIT 7 : A diagram sketched by J.J. showing the direction she and D.M.’s respective vehicles moved; EXHIBIT 8 : A diagram sketched by J.J. showing the final stopping position of her and D.M.’s vehicles; EXHIBIT 9 : Buyers’ Statement of Adjustments of [omitted for publication], Quesnel, BC, [omitted for publication] (the “Residence”), for a Completion, Adjustment and Possession Date of April 9, 2021; EXHIBIT 10 : Photograph of the Residence from the exterior taken by the realtor in the winter of 2021; EXHIBIT 11 : Photograph of a chicken coop in the yard of the Residence taken by the realtor in the winter of 2021; EXHIBIT 12 : Photograph of an outbuilding in proximity to the Residence taken by the realtor in the winter of 2021; EXHIBIT 13 : Photograph of three outbuildings in the yard of the Residence.

This photograph was taken by D.M. at some unknown date; EXHIBIT 14 : Photograph of stairs to the basement inside the Residence taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 15 : Photograph of stairs to the basement inside the Residence taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 16 : Photograph of stairs to the basement inside the Residence taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 17 : Photograph from the kitchen to the banister and load-bearing beam inside the Residence where D.M. says J.J. was standing on the evening of February 17, 2022.

The photograph was taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 18 : Photograph of kitchen inside the Residence taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 19 : Photograph of the bannister and load-bearing beam in the Residence where D.M. says J.J. was standing. This photograph was taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 20 : Photograph of hallway inside the Residence where the altercation between J.J. and D.M. is said to have occurred.

This photograph was taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 21 : Photograph of the furnished living room inside the Residence. This photograph was taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 22 : Photograph of the furnished living room inside the Residence. This photograph was taken by D.M. at some unknown date

after February 17, 2022; EXHIBIT 23 : Photograph of living room inside the Residence. This photograph was taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 24 : Photograph of exterior of Residence, shed and area where vehicles parked. This photograph was taken by D.M. at some unknown date after February 17, 2022; EXHIBIT 25 : Photograph of exterior of Residence showing where vehicles typically parked on February 17, 2022, prior to their being moved.

This photograph was taken by D.M. at some unknown date after February 17, 2022 ; EXHIBIT 26 : Photograph depicting the position of D.M.’s truck in relation to J.J. ’s Jeep on February 17, 2022, after he had moved it before he stopped to speak to J.J . This photograph was taken by D.M. at some unknown date after February 17, 2022 ; EXHIBIT 27 : Photograph of second parking area of the Residence. This photograph was taken by D.M. at some unknown date after February 17, 2022; and EXHIBIT 28 : One-page copy of what appears to be a sketch of a map of a house prepared by D.M. and another.

J.J. ’S VERSION OF EVENTS [ 3 ] J.J. met D.M. in 2019 while living in Chilliwack, BC. They met on the dating website “Plenty of Fish”. In November 2020, they began living together in an intimate relationship in Chilliwack. On April 9, 2021, J.J. and D.M. purchased a house together at [omitted for publication], Quesnel, BC, [omitted for publication] (the “Residence”). I understand they shared equally the cost of the Residence: Exhibit 9. This Residence is situated in rural [omitted for publication] near [omitted for publication]. The house had five bedrooms: three upstairs and two downstairs.

D.M. and J.J. each brought their own belongings and furniture into the Residence. D.M. also brought his one-year-old cane corso dog; J.J. brought her pit bull. They also acquired two other cane corsos, which J.J. claims she purchased. [ 4 ] When they moved into the Residence, D.M. was receiving WCB benefits and J.J. was not working, having left her job in Chilliwack when she relocated to Quesnel. She was, however, receiving Employment Insurance benefits. [ 5 ] D.M. and J.J. each had their own vehicle. D.M. owned a 2000 Silverado 2500 three-quarter ton pickup with a short box.

J.J. owned a midsize Jeep Patriot SUV, which she refers to as a truck. [ 6 ] J.J. and D.M. began residing in the Residence on or about April 12, 2021. Initially, they shared the master bedroom. Eventually, the master bedroom became J.J. ’s bedroom and D.M. had his own bedroom upstairs. The third bedroom was converted into an office, which housed both J.J.’s and D.M.’s belongings. By the end of December 2021, J.J. and D.M. acknowledged their relationship was on the way out and “was not going to continue”. In the last seven or eight months of their relationship, D.M. had moved out of J.J.’s bedroom “many times”.

In early January 2022, J.J. decided she was “done” and “moving out”, and “not doing this anymore”. By the end of January 2022, J.J. had obtained employment in Quesnel. By that date, D.M. had occupied his own bedroom for some time. J.J. continued to share the Residence with D.M. because her ability to relocate was impeded by the fact she was unemployed and she had invested all of her savings in the Residence. [ 7 ] During the currency of her relationship with D.M., J.J. was free to come and go from the Residence.

In July 2022, D.M. reimbursed J.J. for her portion of the down payment for the Residence. [ 8 ] On Thursday, February 17, 2022, J.J. came home after work at about 5:00 o’clock. On that day, she had found somewhere else to live, but had not yet apprised D.M. of the fact. However, D.M. knew J.J. was planning on moving out of the Residence and that she was actively looking for a place to live. [ 9 ] J.J. went downstairs and found some empty boxes, which she brought upstairs. D.M. was sitting in the living room. She asked D.M. if she could use the boxes. She told D.M.: “. . .

I have found a temporary place to live; I need to start packing my stuff; I have movers coming in on Saturday”. [ 10 ] J.J. intended moving out of the Residence on Saturday, February 19, 2022. When she advised D.M. of this plan, they began to argue about how the move would take place. When J.J. asked him if she could use the boxes, D.M. said, “no, you should’ve discussed this with me a lot sooner”. When she told him that she had just learned that day she had a place to live, D.M. replied, “nobody will be coming into this house”. J.J. understood this to mean D.M. would not permit her movers into the Residence.

D.M. went on to say that he will do whatever he has to do to ensure nobody comes into the house. J.J. told him she had to have people come into the house to help her move because she could not do it by herself. She countered, “I will do what I need to do to ensure having help to get my stuff out”. J.J. says, “It was at that point that he got off the couch and came flying at me across the room”. When asked what she meant by “flying”, J.J. says, “He ran at me”. [ 11 ] D.M. positioned himself between J.J. and the end of the hallway.

He kept saying, “you’re not going anywhere; we are sitting down and we are discussing this”. J.J. wanted to get to her bedroom at the end of the hallway and retrieve her purse and car keys. J.J. says that by that time she knew she was in “ serious trouble” and she “needed to just get the hell out of there”. [ 12 ] D.M. was standing about eight inches away from J.J. in the hallway. He hit J.J. on her nose with his open palm so hard she saw stars. J.J. stumbled backwards a bit and raised her hands defensively about shoulder height, D.M. grabbed her wrists “very tightly”.

He began “shaking [her] around” and “bouncing [her] off the walls a couple of times”, then “threw [her] to the floor”. When asked about the degree of force with which she hit the walls, J.J. replied, “ Well, it wasn't a little tap, I can tell you that. With the grip that he had on my hands, on my wrists, it was substantial”. J.J. landed three feet from D.M. on her butt, bounced backwards a little bit, and hit her head on the top of the hallway console table: Exhibit 1. At that moment, J.J. did not feel any pain, but was terrified and needed “to get the hell out of there”.

[ 13 ] J.J. got up and came towards D.M. and told him, “Do it again, [omitted for publication]; do it again”. J.J. explained that “[omitted for publication]” is D.M.’s nickname. J.J. testified she was “not going to sit on the ground and cry”. D.M. pushed her again, just below her shoulders, using both hands with open palms. J.J. took a couple of steps backwards, but did not fall down. J.J. says, “After he shoved me the second time, I was, like, squishing my face up because my face hurt because he had punch -- punched me in the face”.

She claims D.M. said right out, “I don’t give a fuck about your nose; you’re not leaving”. [ 14 ] J.J. says she was holding onto the doorjamb by the hallway closet to stabilize herself in case D.M. came at her again: Exhibit 1. She testified: But I just kept saying, I just want to leave; I want to get my keys and leave. And he kept repeating, you're not going anywhere; we're going to sit down and discuss this; you're not leaving. . . . I was kind of making a motion to be heading down the hallway, but he was blocking me. And he said a couple of times, good luck getting down the hallway.

Good luck getting down the fucking hallway. [ 15 ] D.M. then went into his bedroom. J.J. seized the opportunity to “book it” to her bedroom. She grabbed her purse and keys and immediately went outside. As she was going downstairs, D.M. was already outside and getting into his truck. Initially, D.M. and J.J.’s respective vehicles were parked parallel to each other. J.J. got into her Jeep, shut the door, locked it, and started it up. J.J. testified that: a. Before she could leave in her Jeep, D.M. drove his truck directly in front of hers.

Although she did not believe his truck actually hit or touched hers, he parked his truck very close to her Jeep – so close she could have reached out and touched it. D.M. had difficulty opening his driver-side door to get out of his truck; b. J.J. purposely waited for D.M. to get out of his truck; c. When D.M. got out of his truck, J.J. backed up a little bit so she had room to drive around D.M.’s truck; d. J.J. slammed her truck into drive and put her foot on the brake so she could leave at any time; e.

A fter J.J. backed up, D.M. got out of his truck and stood directly in front of J.J.’s front bumper (in front of the licence plate); f. While standing in the front of J.J.’s truck, D.M. was still saying the same thing: “you’re not leaving; you're not going anywhere until we sit down and talk about this”; g. D.M. pulled his knife out of his pocket. He held it up “nice” in front of J.J. so she could clearly see that he was opening it. She says, “And yeah, panic kind of hit”. She subsequently described the knife as a pocketknife with a two and one-half inch blade; h.

J.J. kept yelling at him, “ please move, please move, please move”; i. D.M. moved from the front of J.J.’s truck, around the front of the driver’s side “kind of low like he was coming towards the tire or [her] door”. J.J. believed D.M. was going to stab her tire so she could not leave, or cut the stem off it, or come at her through the window; j. J.J. believed D.M. was standing within a very close distance to her Jeep; k. It was mid-February, so there was a lot of ice on the driveway and it was very slippery; l. Once D.M. got to the side of her truck, J.J. “stepped on it and kind of peeled out of there”; m.

As she was driving away, J.J. saw D.M. “go down” out of her peripheral vision from the driver’s side window; n. J.J. saw D.M. slip on the ice as she was leaving because he was so close to the truck; o. As she was leaving, J.J. felt a bump on the rear end of her truck. She states that D.M. “probably went down somewhere around my side mirror”. She goes on to say: I felt a bump. It could've been a bump in the ice. It could've been his leg. It could've been him. I'm not sure. . . . It was kind of like going over a speed bump. . . . That's what I would compare it to. . . .

I kept driving. [ 16 ] As it was February, it was already dark. There was some, but not much, lighting in the driveway. In any event, J.J. says, “I wasn’t looking in my side mirrors or in my rear view mirror. My focus was straight ahead just to get the hell out of there”. [ 17 ] When she got to [omitted for publication], J.J. dialled 911. [ 18 ] In less than three minutes, and before she hung up from 911, J.J. received a text message (at 5:51 p.m.) from D.M. saying she broke his ankle by hitting him with her truck: Exhibit 5. Shortly after receiving the text message, Constable Arnason of the Quesnel RCMP arrived.

Specifically, D.M. sent the following three text messages in rapid succession: You broker [sic] ankle by hitting mibeith [sic] your truck Hit and run Wow [ 19 ] When he interviewed J.J. on February 17, 2022, Constable Arnason took photographs of areas on J.J.’s right forearm, left arm, nose, and face: Exhibit 3. J.J. points to various areas she says depict redness arising from D.M. hitting her, shaking her, and bouncing her off the walls. J.J. says D.M.’s open-palm hit to her nose left a permanent mark “where it was smooshed”. Over the next few days the

redness on J.J.’s face progressed into bruising around both her eyes. The end of her nose remained red for almost two weeks. The redness on her right arm transformed into a “purply-green” bruise. J.J. says she felt pain typical of bruising. She had issues with her left shoulder and her hand going numb, for which she sought medical attention.

J.J. attributes these symptoms to D.M. having “bounced [her] off the walls” . [ 20 ] J.J. says that although they were inside the house, neither her pit bull nor the cane corsos made an appearance at the altercation between D.M. and J.J. [ 21 ] The Crown adduced no photographs of J.J.’s alleged injuries taken after February 17, 2022, when she says the bruises under her eyes matured, or J.J.’s relevant medical records. D.M.’S VERSION OF EVENTS [ 22 ] D.M. is [omitted for publication] years old, having been born on [omitted for publication], in [omitted for publication], Alberta.

He moved to British Columbia as a child, where he has lived ever since. He grew up in [omitted for publication]; however, lived in Kelowna and Prince George as an adult. He has worked in the trucking industry and received a diploma in safety and compliance at the automotive training centre in Surrey, BC. D.M. went on to work for [omitted for publication] as a trucker for 20 years. He has one child and two grandchildren. [ 23 ] While in his early 20s, D.M. had back surgery, which gave rise to a degenerative disk disorder. This is a permanent condition which exacerbates as D.M. ages.

In August 2014, D.M. suffered a work injury recognized by the Workers’ Compensation Board. A tractor trailer door came down and fractured his shoulder. As a result of that injury, D.M. suffers from Complex Regional Pain Syndrome (“CRPS”). The pain is manifest in the right side of his body, including his right leg. The pain is episodic, severe, unpredictable, and permanent. Although the quality and duration of the pain varies, D.M. experiences moderate to severe pain every day. D.M. manages the CRPS by avoiding straining or heavy lifting.

He had been prescribed medications, such as Gabapentin, but discontinued their use. He now only takes Trazadone at night as a sleep aid. When the pain becomes intolerable, he goes to the hospital for an injection of Demerol. [ 24 ] D.M.’s disability was exacerbated in August 2016 when he was in a car accident at 88 Avenue and King George Highway in Surrey, BC. This accident left him with sciatic pain disorder in his left leg. D.M. says he uses a cane for balance and to stop from falling. He can suffer severe pain if he falls. Both before and at the time of the offence, D.M. was under the care of Dr.

Dodds in Chilliwack. [ 25 ] D.M. met J.J. in August 2019 in Chilliwack. They dated casually and became friends. While residing in Chilliwack, D.M. and J.J. stayed overnight at each other’s home approximately once per week, but maintained separate residences. D.M. says his relationship with J.J. may have been “romantic” at times, but not intimate. D.M. and J.J. attempted an “intimate relationship” in September 2021, but it did not crystalize.

Although they shared the Residence, D.M. and J.J. each had their own bedroom and lived separate lives. [ 26 ] D.M. decided to move to the Quesnel area, which he considered beautiful. He found the Residence, which was for sale and in his market price. He approached J.J. to see if she wanted to purchase half of the house as a form of investment. She agreed, put down half the down payment and co-signed the mortgage. D.M. considered this a joint business venture. [ 27 ] D.M. and J.J. moved into the Residence in April 2021, shortly after the possession date (April 9, 2021).They lived in the Residence with four dogs.

J.J. owned a pit bull, and D.M. owned three cane corsos. I gather D.M. intended to breed the cane corsos. D.M. maintains that he and J.J. were not spouses or involved in an intimate relationship. D.M. describes his relationship with J.J. as morphed into a business relationship. [ 28 ] D.M. and J.J.’s relationship began to deteriorate in July 2021, because J.J. was unemployed and was running out of money. She began missing her portion of the mortgage payments. Although D.M. did not work, I gather he had income from his disability pension.

It was not until January 2022, J.J. obtained employment as an [omitted for publication]. [ 29 ] In December, D.M. and J.J. began discussing J.J. moving out. D.M. agreed J.J. should move out and find a place to rent. He agreed to reimburse J.J. for her investment in the Residence when he could procure the funds. D.M. says this was an amicable discussion. Still, D.M. and J.J. had difficulties communicating about the Residence, separating, and the dogs. D.M. describes J.J. as “very fiery”. [ 30 ] On the day of the offence, D.M. was sitting on the loveseat in his living room eating his dinner.

D.M. said that he and J.J. did not make meals or eat together “anymore” and lived separate lives. [ 31 ] D.M.’s dogs were in the living room with him; J.J.’s pit bull was in her bedroom. [ 32 ] J.J. came home after work around dinner time (5:30 p.m. to 6:00 p.m.). She came inside the Residence via the covered deck and through the kitchen. J.J. and D.M. typically used this door because it was closest to where they parked their vehicles. [ 33 ] Upon entering the Residence, J.J. immediately went downstairs.

When she came upstairs shortly thereafter, J.J. told D.M. she had people coming over Saturday to help her move and asked if she could use some boxes that were downstairs. D.M. said no to the boxes and to the movers. He said no to the boxes because he saved them up to use to organize his “stuff in the basement” and told J.J. she could use her totes that were stored in the shed. He said no to the movers coming into the house on Saturday because he had to first move his “stuff” in the basement, which was “all over the place”. D.M. needed friends to help him move it because he could not do so himself.

D.M. could not arrange this by Saturday. J.J.’s stuff included a couch, a bed, other large items, and some odds and ends. D.M. needed to move his belongings out of the way so J.J. “could get her stuff out”. [ 34 ] J.J. was angered by D.M.’s opposition to her using the boxes in the basement and having people come into the Residence on Saturday to move her belongings. J.J. responded something to the effect, “I’ll do what I have to do to get my stuff out of here”.

[ 35 ] D.M. and J.J.’s discussions became “heated a little bit”, so D.M. got up and walked towards the hallway towards his bedroom to get his phone, he said “because it was getting heated, escalated and [he] wanted to record the conversation”. D.M. describes their emotions as, “ Very high and loud arguing” and he was receiving “bad vibes” from J.J. [ 36 ] D.M. retrieved his phone from his bedroom and put it in the pouch of his hoody. He thought he had turned the recording on, but had not actually done so. D.M. also wanted his phone as a safety precaution to call 911 “in case something might have happened”.

He came out of the bedroom hoping to de-escalate the situation and help J.J. move out. [ 37 ] After retrieving his phone, D.M. proceeded down the hallway towards J.J., who was standing at the end of the hallway near the console table: Exhibit 1. When D.M. was about an arm’s length away from J.J., she “came at [him]” and pushed him on the chest with one or two hands. This was the first physical contact between D.M. and J.J. D.M. denies blocking or obstructing J.J. D.M. did not say anything to J.J. before she pushed him.

Specifically, J.J. did not say anything to the effect that she wanted to get by him. [ 38 ] When J.J. pushed him, D.M. lost his balance and fell to the floor, triggering severe pain. It was painful for him to get up. D.M. used one of his hands to try and get himself upright and the other hand to reach out to grab the wall. When he got up, D.M. put his hand up to say, “Just stay away from me . . . I don't want any more trouble”. D.M. says that he wanted a truce; he was in pain, he “didn’t want any more”, he “wanted that to stop”. D.M. was in pain and “needed to get out of there”.

He left the house by way of the back door on the covered deck adjoining the kitchen. He made his way to his truck with the intention of driving to the hospital to get an injection of Demerol to quell the pain. [ 39 ] D.M. does not know when he left the Residence in relation to J.J. When he first noticed her outside, J.J. was already in her Jeep. [ 40 ] D.M. does not believe he made any contact with J.J. during this altercation, but if he did, it was accidental contact that occurred when he was trying to get up after he fell. D.M. expressly denies: (

a) striking J.J.; or (

b) grabbing J.J. by the wrists; or (

c) shaking J.J.; or (

d) pushing J.J.; or (

e) knocking J.J. to the floor; or (

f) telling J.J. she could not go down the hallway; or (

g) preventing J.J. from going to her bedroom. He denies J.J. hit her head on the console table. He denies intentionally doing anything to J.J. to cause her to bruise. He says the line on her nose depicted in the photographs was present when he met her. [ 41 ] D.M. got into his vehicle, which was a 2000 Silverado 2500 three-quarter ton pickup with a short box. While in his truck, D.M. drove “a little bit into the driveway”, perhaps a car length, when he noticed J.J. was in her Jeep. He stopped his truck diagonally to the right-hand side of J.J.’s Jeep. He left plenty of room for J.J. to get by his truck.

D.M. got out of his pickup and approached J.J. who was sitting in the driver’s seat in her Jeep. He says he did so because he knew, as a truck driver, he should not be driving because he was in too much pain to drive. D.M. denies “boxing in” J.J.’s Jeep with his truck. D.M. believed J.J. had plenty of room to get around his truck. [ 42 ] D.M. approached J.J.’s Jeep with the intention of asking her to drive him to the hospital. At that point he did not believe there was any residual animosity or ill will between them.

When he approached the front of J.J.’s Jeep, it appeared to him like she was verbalizing something through the windshield. He could not hear or understand J.J., so he walked around the front of her Jeep to the driver’s side to speak to her. It was very cold and very icy. D.M. slipped and fell at the front right-hand side of the Jeep. After he fell, J.J. “zoomed out of there” and in doing so, drove over the lower calf of D.M.’s left leg, then proceeded out of the driveway. J.J. did not stop or ask him if he needed help. [ 43 ] D.M.’s leg “hurt really badly”.

Still, he got himself together and hobbled into the house, licking his wound. As he was in no condition to drive, D.M. went into the house and tried to relax. He says he did not consider calling an ambulance while he lay on the ground outside. He waited until he was inside to send J.J. the text message that she had broken his ankle by hitting him with her truck. The message was sent between 5:51 and 5:52 p.m. on February 17, 2022. He never received a response to this text. [ 44 ] Later that evening, D.M. was arrested and taken into custody. The RCMP asked him if he wanted medical attention.

D.M. knew he was not going to get the attention in the cells so he “just kind of rough-minded” [his] pain through while in custody. By the time of his release, his pain had subsided. His ankle was not broken. [ 45 ] D.M. never saw J.J. again until she appeared in court on May 19, 2023, for the first day of trial. [ 46 ] D.M. denies brandishing any knife or displaying it to J.J. in any threatening way. [ 47 ] D.M. was arrested and lodged into the cells. He never did go to the hospital. [ 48 ] D.M. agrees that none of the dogs got involved in the altercation.

Legal Framework [ 49 ] D.M. is charged with assault under s. 266 of the Criminal Code which states: 266 Every one who commits an assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. [ 50 ] An assault under s. 266 incorporates the definition of assault set out in s. 265 of the Criminal Code , the relevant portions of which are 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 onreasonable grounds that he has, present ability to effect his purpose; or . . . [51] Assault as defined in s. 265(1)(

a) does not require any infliction of harm; merely, the intentional non-consensual application offorce, directly or indirectly. The strength of the applied force is immaterial; the slightest touching of another person without their consentcan constitute an assault: R. v. Burden, (BC CA). An offence under s. 265(1)(

b) lies in the intention to apply force andnot in the intention to carry out that threat. An assault is committed pursuant to this provision when the accused threatens, by

an act or agesture, to apply force to another person: R. v. Dawydiuk, 2010 BCCA 162 , paras. 29-30. [52] J.J.’s version of events leaves no doubt that D.M. intended to apply force to her. There may be some suggestion J.J. “consented”to D.M. pushing her after she invited him to “do it again”, but that cannot be said of the initial assault. D.M.’s version is that if he didapply any force to J.J., it was accidental when he tried to recover from falling after she had pushed him.

Whether the Crown has satisfiedall the elements of assault requires me to assess the credibility of the complainant and accused, the only witnesses who testified at trial. ASSESSING CREDIBILITY [53] In this case, I heard only from the complainant J.J. and the accused D.M. As the trial judge, I must assess the reliability andcredibility of these two witnesses. This is a highly-contextual, fact-specific exercise. I can believe none, part, or all of a witness' evidenceand may attach different weight to different parts of a witness' evidence: R. v. S. (R.D.), (SCC).

As Justice Corycommented in S. (R.D.), assessing the credibility of a witness is more of an “art than a science”. It is a task that can be particularlydaunting where a court must assess the credibility of two witnesses whose testimonies are diametrically opposed. [54] Reliability and credibility are not the same. Reliability involves the accuracy of the witness’ testimony. It engages considerationof the witness’ ability to observe, recall and recount: R. v. H.C., 2009 ONCA 56 , at para. 41. Credibility, on the other hand,concerns the witness’ veracity – to speak the truth as the witness believes it to be: R. v.

Morrissey, (ON CA), at p.526. Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes. [55] The most important test of credibility lies in the evidence itself. Assessing credibility engages a number of factors, including:(

a) the plausibility of the witness’ evidence; (

b) any independent supporting or contradicting evidence; (

c) the external consistency of theevidence; (

d) the internal consistency of the evidence; (

e) the “balance” of the evidence, meaning the witness’ apparent willingness to befair and forthright without any personal motive or agenda; and to a lesser extent (f), the witness’ demeanour while testifying, meaning notso much what is said but how it is said. [56] It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true: evidence that is crediblemay nevertheless be unreliable: H.C. at para. 41, citing R. v.

Morrissey, (ON CA). [57] I pause to note that appellate authorities discourage trial judges from considering demeanour evidence to be determinative orcentral to assessing credibility: R. v. J.T., 2019 BCCA 180, at para. 31; R. v. Graham, 2022 BCCA 252 , at para. 16, citing R. v.Sue, 2011 BCCA 91 . Still, demeanour evidence is a factor that a trial judge is entitled to consider, provided it is not theexclusive determinant of their credibility assessment: R. v. Panchal, 2022 ONCA 309 , citing R. v. A.A., 2015 ONCA 558, at paras. 131-32.

ASSESSING REASONABLE DOUBT [58] The Crown has to prove all the essential elements of an offence charged beyond a reasonable doubt in order to obtain aconviction. In R. v. W.(D.), (SCC), [1991] 1 SCR 742, the Supreme Court of Canada provided the trial courts with ananalytical framework to assess reasonable doubt in the context of conflicting testimony in a criminal trial. In “Doubt about Doubt: Copingwith R. v. W.(D.) and Credibility Assessment”, (2017) 22 Can Crim L Rev 31 (WL), Professor David W. Paciocco (as he then was)recasts the W.(D.) test as follows: a.

Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred; b. A trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; c. Even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true, there is areasonable doubt and an acquittal must follow; d. Even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt; and e.

Even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused’s guilty beyond a reasonable doubt. THE COMPLAINANT J.J. Assessing the reliability of J.J.’s evidence [59] There is no suggestion that J.J. was under any intoxicating substances at the time of the offences. I have no reason to believe J.J.’sability to accurately recall the events about which she testified was impaired because of any medical condition. Assessing the credibility of J.J.’s evidence (

a) the plausibility of J.J.’s evidence

[ 60 ] There is nothing particularly implausible about J.J.’s version of events. There are aspects of her evidence, however, that make me wonder about its veracity. For example, I find incongruous: a. The unsecured items on the table (Exhibits 1 and 4 (1)), such as a lamp and ceramic decorative items were not disturbed as a result of J.J. falling backwards and hitting her head on the console table top; b. D.M., who was sufficiently disabled from work-related injuries that he received a disability pension from, could “fly”, “run”, or “sprint” after J.J.; c.

After being shaken, pushed, bounced off the walls, thrown to the floor, and hit by D.M. so hard she saw stars, J.J. says she was terrified and needed to “get the hell out of there”. Nevertheless, she is plucky enough to get up, move towards her assailant and told him, “do it again, [omitted for publication]; do it again”; and d. Immediately after D.M. allegedly tells J.J. “Good luck getting down the fucking hallway”, and she was “not leaving”, he goes into his bedroom then leaves the Residence before her and gets into his truck. (

b) independent supporting or contradicting evidence [ 61 ] There are only two people who know what happened at [omitted for publication] in the early evening of February 17, 2022: D.M. and J.J. Much of J.J.’s evidence was contradicted by D.M., the only other witness in the trial. They do agree there was a disagreement leading to an altercation about J.J. having movers coming into the residence on Saturday (February 19, 2022). They disagree on who assaulted whom. [ 62 ] Specifically, D.M. denies striking or grabbing or shaking or pushing or throwing or confining or restraining J.J.

He denied causing any injuries to J.J. or that she hit the console table with her head. [ 63 ] D.M. also denies he maneuverered his truck in such a way as to box in J.J.’s Jeep. He claims there was approximately five to ten feet between the two vehicles. [ 64 ] J.J.’s version of events are corroborated to some extent by Constable Arnason’s photographs which depict some redness on one of J.J.’s arms and on her face. J.J.’s nose does appear red, but so do parts of her cheeks and chin. I am mindful that at the time these photographs were taken, J.J. is standing outside on a cold evening in February.

As Constable Arnason did not testify, it is not apparent if this colouration was more pronounced than the photographs reveal. [ 65 ] I find it noteworthy that Constable Arnason did not take any photographs of J.J.’s head which she says made contact with the console table. [ 66 ] Also, there is no suggestion the police found any knife on D.M.’s person at the time of his arrest or outside where D.M. fell on the ice. There was no damage to J.J.’s Jeep tire.

Having said that, the knife was a small pocketknife, and as J.J. did not mention it in her statement to Constable Arnason, I doubt if he was searching for it. [ 67 ] J.J.’s evidence is corroborated by the fact she left the Residence suddenly, after getting home with the notion of packing her belongings. Obviously something happened to derail her plans. (

c) the external consistency of J.J.’s evidence [ 68 ] J.J. gave two out-of-court statements to Constable Arnason, one on February 17, 2022, immediately after the incident, and one on March 15, 2023. When taking J.J.’s statement immediately after the incident on February 17, 2022, Constable Arnason asked J.J. to tell him “every little specific detail”. Nevertheless, in neither of her statements to the police did J.J. tell the police: a. She hit her head on the hall console table after D.M. bounced her off the walls a couple of times, then threw her to the floor; or b.

After shoving her a second time, after he had “punched [her] in the face”, and told her, “I don't give a fuck about your nose; you're not leaving”; or c. D.M. brandished a knife at her when she was trying to leave in her Jeep. [ 69 ] J.J. says she mentioned the knife in her Victim Impact Statement, but the Crown never sought to adduce it as a prior out-of-court consistent statement to rebut the defence’s suggestion of fabrication. I have no idea when this Victim Impact Statement was made. (

d) the internal consistency of J.J.’s evidence [ 70 ] I would not say there are any glaring internal inconsistencies in J.J.’s testimony; however, there are aspects of J.J.’s evidence I find problematic. For example, I found J.J.’s evidence as to her knowledge or awareness of D.M.’s medical issues confusing. She testified that D.M. was not under medical care at the time of the incident, but she was aware that D.M. was under Dr. Dodd’s care even after he moved to Quesnel. [ 71 ] J.J. testified in direct examination that when D.M. assaulted her initially, she got up and confronted him and challenged him.

She states: “I got up, came towards him and told him, do it again, [omitted for publication]; do it again. And he did, he shoved me again. Sorry. I'm not going to sit on the ground and cry”. [ 72 ] In cross-examination, J.J. “strongly disagreed” with defence counsel’s suggestion she had pushed D.M. out of her way. She stated: “I'm barely five four. He's over six feet. There's -- I'm not going to be stupid and put my hands on him”. [ 73 ] In direct examination, J.J. testified, “my face hurt because he had punch -- punched me in the face”. In cross-examination, J.J.

admitted D.M. did not punch her, stating, “To be a punch his hand would've had to have been closed”. J.J. acknowledged that in herstatement to Constable Arnason, she had described D.M. as hitting her with an “open faced palm”. (

e) the balance of J.J.’s evidence, including her motive to lie [74] As she is the Crown’s key witness, I must consider whether J.J. has an interest in the outcome of the proceedings because it mayhave an impact on her credibility. In R. v. Laboucan, 2010 SCC 12 , Justice Charron stated at para. 11: [11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, amongothers, to take into account when assessing the credibility of the witness’s testimony.

A trier of fact, however, should not place undueweight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding ofcredibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to theaccused. Regard should be given to all relevant factors in assessing credibility. [75] D.M. bears no burden to prove J.J. has a motive to lie or explain why she has made allegations against him. To require D.M. to doso would reverse the onus of proof: R. v. Gerrard, 2022 SCC 13, para. 4.

Nevertheless, in this case, the defence says J.J. does have amotive to lie: J.J. knew she had hit D.M. with her Jeep and drove away. Employing the old adage that “the best defence is an offence”,J.J. defended her “hit and run” as an escape from family violence. (

f) J.J.’s demeanour while testifying [76] Defence counsel characterizes J.J. as “an argumentative, hostile witness” whose responses were often pugilistic. I do not sharethis view. I get the impression J.J. is not easily intimidated and perceives herself as someone who will hold her ground. For this reason,her evidence as to her reaction to the altercation is somewhat incongruous. She claims to be terrified and at the same time she isconfronting D.M. to “do it again”. Having said that, I am cautious about making assumptions of how people will behave in distressingsituations.

The human experience is as diverse as the number of people on this planet. FINDINGS ON J.J.’S CREDIBILITY [77] I do not get the sense that J.J. fabricated her evidence; however, I am concerned she has embellished her evidence, perhaps forthe reasons the defence suggests. THE ACCUSED D.M. Assessing the reliability of D.M.’s evidence [78] There is no suggestion that D.M. was under the influence of any intoxicating substances at the time of the alleged offences or thathis disabilities might impact the reliability of his evidence. Assessing the credibility of D.M.’s evidence (

a) the plausibility of D.M.’s evidence [79] In D.M.’s version of events, he is twice the victim. He says J.J. pushed him without provocation in the hallway inside theResidence, then hit him with her Jeep while leaving the Residence. [80] I find it unlikely that J.J. would have left the Residence in the manner D.M. described.

J.J. came to the Residence after work inthe late afternoon of February 17, 2022, intent on gathering her belongings because she was moving out on Saturday (February 19, 2022).She does not strike me as someone who would be derailed from her plans by a minor disagreement over the logistics of moving herbelongings out of the Residence.

Her actions that evening are consistent with someone who was fleeing for safety. [81] I also find incongruous the fact that although he professes to have been in severe pain, D.M. rushed down 10 or 15 metal stairsoutside, on a dark, freezing-cold evening in February, got into his truck, drove half a vehicle length, and stopped. Instead of texting J.J. orwinding down his window and calling to her, D.M. got out of his pickup, walked over to, and stood in front of, J.J.’s Jeep, and thenmoved to the driver’s side of the Jeep. He does not say if he was leaning on her Jeep for stability or support.

All this activity strikes meas unusually kinetic for someone who is in severe pain. [82] Shortly after attempting to speak to J.J., D.M. says he was hit or run over by J.J.’s Jeep. Although he had his phone with him,D.M. did not reach out to a friend for help, or call an ambulance. Instead, he hobbled into the house and sent J.J. a text telling her shebroke his ankle. He says he believed that upon receiving his text, J.J. would come back to help him.

However, he was arrested shortlythereafter and by that time he would have known that J.J. was not returning to help him; nevertheless, D.M. did not accept ConstableArnason’s offer to arrange for medical attention. On the other hand, he says when in the cells, his pain had subsided, which was commonof his condition. However, I would assume he still had a sore ankle unless he simply sent J.J. the text message he did just to alarm her. (

b) independent supporting or contradicting evidence [83] J.J. unequivocally refutes D.M.’s characterization of their relationship as a business relationship. Although they did not marry,they were together as a couple. She maintains they shared a residence together both in Chilliwack and in Quesnel. When they moved toQuesnel, they initially shared a bedroom together. [84] D.M. testified he suffered from significant disabilities. At trial, J.J. acknowledged he had a work-related injury recognized by theWorkers’ Compensation Board. She knew he did not work, but was “on disability” from his injury.

I understand J.J. to agree that D.M.was receiving an income from disability insurance or Workers’ Compensation or some other disability-related government-fundedprogram. Still, J.J. maintains D.M. did not use any medication in February 2022, nor did he have any difficulty walking, or even “running

like a sprinter”. J.J. was aware, however, that D.M. was under the care of Dr. Martin Dodds, a physician in Chilliwack. [85] J.J. does not deny she may have hit D.M. with her Jeep when leaving. [86] D.M. described his argument with J.J. as heated and her anger escalated to the point he took steps to record their conversation.Still, he was intending to ask J.J. to drive him to the hospital because he did not think there was any residual animosity after thealtercation. This is contradicted by the fact J.J. left the Residence immediately after the altercation even though she had just returnedhome after work intent on packing her belongings. (

c) the external consistency of D.M.’s evidence [87] I was not made aware of D.M. making any out-of-court statement with respect to the alleged assault. (

d) the internal consistency of D.M.’s evidence [88] I found D.M.’s evidence internally inconsistent in his depiction of his relationship with J.J. as a business partnership, as opposedto a romantic or intimate relationship. He maintains he was not in an intimate relationship with J.J., even though he states in his directexamination: a. We did try an intimate relationship which didn't work; b. . . . I just wanted to communicate about separating and going our separate ways and what we needed to do about this; c. . . . it was pretty agreeable that we should not stay together; and d. . . .

I wanted her out of the house, she wanted out of the house, so why can't we just talk about it like adults. [89] In his cross-examination, when asked if his relationship with J.J. was romantic or intimate in any way, D.M. responded, “Notintimate. It may have been romantic, but not -- like, more courting”. D.M. said at the outset he was interested in having a romantic butnot an intimate relationship with J.J. [90] Also, in Exhibit 5, which is D.M.’s text to J.J. on February 5, 2022, he states: You shut the door months ago. My words have no place here. I do all the talking as they lead to arguments.

This is unacceptable. I willnot have it. I suggest you find a way to properly communicate. Be careful this is an open door, don't shut it down. [91] I concede, however, that D.M. may have a specific notion as to what an “intimate relationship” or “romantic relationship” entails– a view he did not share with the court. (

e) the “balance” of D.M.’s evidence, including his motive to lie [92] At trial, D.M. described J.J. as “fiery”, but no more. He did not attempt to cast J.J. in an unfair or unfavourable light. D.M. wasnot particularly critical of, and did not harbour any significant animosity against, J.J. [93] There is no absolute rule prohibiting the trial judge from considering an accused’s motive to lie when assessing his credibility asa witness; however, there are inherent dangers in doing so. An accused is presumed innocent until proven guilty so considering hisinterest in the outcome of this trial is unhelpful.

As Justice Charron states in Laboucan, at para. 12: [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. Theconcern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accusedhas a greater interest in securing an acquittal.

Therefore, any assumption that an accused will lie to secure his or her acquittal flies in theface of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. . . . [Emphasis in original.] (

f) D.M.’s demeanour at trial [94] There is nothing about D.M.’s demeanour at trial that detracted from his credibility. FINDINGS ON D.M.’S CREDIBILITY [95] In R. v. Graham, 2021 BCCA 163 , the Court of Appeal held at para. 15, “It is certainly appropriate to weigh theevidence of an accused person by considering whether it is logical and makes sense”. It does not make sense to me that J.J. would fleethe Residence over a minor squabble.

Also, it does not make sense to me that someone who is suffering from such severe pain that theycould not drive and needed to go to the hospital for a shot of Demerol, could move about in the manner he did after the altercation. [96] I do not find D.M. a credible witness upon whose evidence I reasonably rely with respect to the substantive elements of theoffences for which he is charged. ANALYSIS Elements of the offence: static [97] The static elements for any criminal offence are: (

a) identity, in the sense that the person standing in the courtroom is the person

who is alleged to have committed the offence; (

b) jurisdiction of the court over the person accused; and (

c) the timing of the offence. Ifind the Crown has proven beyond a reasonable doubt that: (

a) D.M. is the person alleged to have committed the offence charged underCount 1 of Information 28726-1-K; (

b) the Provincial Court of British Columbia in Quesnel, BC, has jurisdiction over D.M.; and (

c) theincidents giving rise to the charges occurred on February 17, 2022. Issue: Has the Crown proven beyond a reasonable doubt that D.M. assaulted J.J. on February 17, 2022, in Quesnel, BC? [98] I believe there was an altercation between J.J. and D.M. at their Residence in Quesnel, BC on February 17, 2022. I believe some,but not all, of J.J.’s evidence of what occurred that night. I accept that there was some physical contact between J.J. and D.M. that causedher to leave the Residence. I am not persuaded that altercation precisely or even substantially unfolded as she described.

I am inclined tobelieve J.J. that D.M. pushed the palm of his hand into her face and grabbed her wrists and perhaps even shook her to some extent. I amnot persuaded that D.M. bounced her off the walls or threw her to the floor so that she hit her head on the console table or that D.M.brandished a knife at her in the parking lot. [99] I have also considered D.M.’s version of events in the context of all of the evidence as a whole. I do not find them entirelybelievable. [100] In W.(D.), the Supreme Court of Canada has reminded trial judges that a criminal trial is not a credibility contest.

The fact that Ido not believe D.M.’s evidence is not the end of the analysis. The Supreme Court held that in the event I do not believe the testimony ofthe accused but am left in reasonable doubt by it, I must acquit. Moreover, even I am not left in doubt by the accused’s evidence, I mustask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of theguilt of the accused. [101] In R. v. Lifchus, (SCC), the Supreme Court explained that proof beyond a reasonable doubt is a single,objective, and exacting standard of proof.

It is not the same as proof of probability. On the other hand, it is not proof to an absolutecertainty. It is not proof beyond any imaginary or frivolous doubt. It is based on reason and common sense, not on sympathy orprejudice. Still, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R. v.Starr, 2000 SCC 40, at para. 242. DECISION [102] I cannot say I am satisfied beyond a reasonable doubt that the Crown has proven all the elements of the offence of assault on J.J.to s. 266 of the Criminal Code.

Hence, I find D.M. not guilty of the sole offence of assault charged in Information 28726-1-K. _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia