R. v. Denniston, 2023 BCSC 1223

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Denniston, 2023 BCSC 1223 Date: 20230517 Docket: 181454-2 Registry: Victoria Rex v. Tyler Mark Denniston Before: The Honourable Mr. Justice Giaschi Oral Reasons for Judgment Counsel for the Crown: P.E. Pearson Counsel for the Accused: N. Brooks Place and Date of Trial/Hearing: Victoria, B.C. July 4-6, 2022 and April 11-13, 2023 Place and Date of Judgment: Victoria, B.C.

May 17, 2023 Table of Contents Indictment .. 3 Evidence and Facts .. 3 June 29, 2018 – Incident #1 . 4 July 2018 – Incident #2 . 6 August 11, 2018 – Incident #3 . 9 March 1, 2019 – Incident #4 . 13 Breach of Condition .. 14 General Evidence . 15 Submissions .. 17 By Crown .. 17 By Accused . 17 Legal Principles .. 18 Elements of the Offences . 18 Forcible/Unlawful Confinement 18 Assault 20 Assault causing bodily harm .. 20 Reasonable Doubt 21 Credibility . 21 W.(D.) Analysis . 23 Analysis .. 25

R.M.’s Credibility . 25 S.M.’s Credibility . 28 Constables Scoones and Reichert 33 The Accused’s Evidence and W.(D.) 34 Conclusions on Counts 2, 4, 5, 7, 8 and 9 . 35 Count 10 . 37 Verdict .. 37 THE COURT: We are here this morning for me to deliver my reasons in this matter. Should a transcript of these reasons be ordered, I reserve the right to amend the transcript for grammar and syntax, and to provide full citations and quotations. The result will not change as a consequence of any such amendments. Indictment [ 1 ] The accused was initially charged with 10 counts.

However, during submissions, the Crown advised that they were not seeking convictions on Counts 3 and 6 of the indictment. Therefore, these reasons address only the remaining eight counts: namely, three counts of unlawful confinement contrary to s. 279(2) of the Criminal Code , R.S.C. 1985, c. C-46 [ Criminal Code ], three counts of assault contrary to s. 266 of the Criminal Code , one count of assault causing bodily harm contrary to s. 276 (

b) of the Criminal Code , and one count of failure to comply with the conditions of a release order contrary to s. 145(5) (

a) of the Criminal Code . Evidence and Facts [ 2 ] The alleged offences, other than Count 10, relate to four specific incidents alleged to have occurred on June 29, 2018, July 2018, August 11, 2018, and March 1, 2019. At the relevant times, the accused and the complainant, who I will refer to throughout as S.M., were in a relationship. [ 3 ] The witnesses at the trial were:

a) The complainant, S.M., who testified in relation to all four incidents;

b) Constables Benjamin Scoones and Stephen Reichert, who testified in relation to the August 11, 2018, incident; and

c) A friend of the complainant's who I will refer throughout as R.M., who testified primarily in relation to the July 2018 incident. June 29, 2018 – Incident #1 [ 4 ] S.M. testified in chief that she and the accused were in a relationship in 2018 and 2019. She testified that on June 29, 2018, while she was at the accused's apartment on Yates Street, she received a text message from a friend that advised her to not see the accused. She says the accused saw the text message and became angry. He asked her to delete the contact information of the friend who had sent the message and to block the friend from her phone.

She testified that she then attempted to leave the apartment but the accused grabbed her ponytail, dragged her into the bedroom, pushed her onto the bed, and got on top of her. She said he then tried to take her phone. She says that he bit her forearm and attempted to pry the phone from her hands. She says he told her to let go of the phone or he would break her fingers. She said that she then screamed and let go of the phone. [ 5 ] S.M. testified that after the accused looked at the phone, he straddled her and began to strangle her. She said this lasted about 15 seconds and that she was unable to breathe.

When he let go of her, she screamed. He then covered her mouth. At this point, she testified that the accused's roommate came to the door and said to quiet down. [ 6 ] S.M. testified that the accused then started pacing. She said he was angry and would not let her leave. She said that she tried to get to the door, but he pushed her back. When asked how many times she tried to leave, she said it was only once or twice because the initial attack was so aggressive and she did not want it to happen again. [ 7 ] She said that she was in the room for six hours, mostly sitting on the bed while the accused paced.

She testified that eventually, she convinced him to let her go. [ 8 ] S.M. identified a number of photographs that she took following the incident on June 29 and July 1, 2018. The photographs were of marks and bruises on her neck and forearm, including what she said was a bite mark on her arm. [ 9 ] In cross-examination in relation to Incident #1:

a) S.M. agreed that she did not seek treatment for her injuries and did not mention them to her physiotherapist, although she could have;

b) S.M. agreed that the name of the accused's roommate was Young and not Brown, as she had testified in chief. She also agreed that she and the accused were arguing and that Mr. Young may have knocked on the door more than once and asked them to keep it down;

c) When questioned on the timing of the incident, she said that she arrived sometime in the morning and left late in the afternoon. She later said that she maybe arrived around 10:00 a.m. and left between 4:00 and 5:00 p.m.;

d) S.M. was referred to statements that she had given to police on March 19 and April 6, 2021. She was specifically directed to a statement where she said the roommate "came in". She testified that she meant the roommate came into the situation, not that he came into the room;

e) S.M. was also questioned about the photographs she took. She explained that they were taken in two different locations. Some were taken in the bathroom at the accused's house, and some were taken in the bathroom at her home where she lives with her parents. She explained that some were screenshots of photographs and some were actual photographs. She further explained that some were screenshotted because the accused periodically deleted photographs from her phone and she wanted to retain those photographs;

f) S.M. was questioned about a video she took. She testified that she took a video in her bedroom, in her bathroom at home, and that she eventually sent it to the police. I note that this video was not entered into evidence;

g) S.M. did not agree that she could have left the apartment at any time. She reiterated that the accused stood in front of the door and would not let her leave. July 2018 – Incident #2 [ 10 ] In relation to the second incident, the dates of this incident are not well specified in the indictment which merely says the incident occurred between July 1 and 23, 2018.

However, based on the evidence, in particular the evidence of R.M., I am satisfied that this incident occurred on or about July 23, 2018. [ 11 ] In reference to this second incident, S.M. testified in direct examination that she was at the accused's new apartment on Carey Road when he saw something on her phone that made him angry. She thought it was a text from a male friend. She said she got up to leave and took one or two steps up the stairs when the accused grabbed her hair, dragged her back to the couch, and smashed her head against the hard part of the couch four or five times.

She says he then got on top of her and again strangled her. She said that she briefly blacked out and that when she came to the accused was crying and pacing. She said that she screamed and the accused got on top of her and covered her mouth. She testified that she then tried to calm him. She said that she then tried to run for the door, but the accused tackled her. She said the accused locked the door and would not allow her to leave.

She said that she tried to leave several times and that in one attempt she managed to get outside, but he caught her and dragged her back inside. [ 12 ] She testified that she was in the basement for about 24 hours and that the accused would not let her eat, drink, sleep, or use her phone. She testified that the next day, she convinced the accused to allow her to text a friend. She said that she texted a safe word to her friend R.M. The safe word was one that they had previously arranged. She said that she and the accused then went upstairs, and when the friend knocked on the door, she was allowed to leave.

She testified that she and the friend left the city for a few weeks to get away from the accused. [ 13 ] S.M. also testified in direct to alcohol and cocaine use on the day of Incident #2. She described her intoxication level as being at four or five out of 10. S.M. also testified to an unwanted sexual act that occurred and which is not the subject of any charges. [ 14 ] In cross-examination in relation to Incident #2:

a) SM testified she thought the date was July 23, 2018;

b) She said she arrived at the accused's apartment that morning. She initially said she drove to the accused's apartment but then said that he may have picked her up;

c) She said that she started drinking that afternoon and that she had a minimal amount of cocaine;

d) At some point during the day, she briefly met the accused's roommates, Richard and Tyler, on the deck before going down to the accused's apartment;

e) She clarified in cross-examination that it was 8:00, 9:00, or 10:00 p.m. that the accused dragged or pulled her by the hair and banged her head against the couch;

f) She said that the accused put his hands around her neck and that she had bruises on her neck and knee. She testified that she did not believe she told the police of this bruising and agreed that she was not clear in her statement to the police. She also agreed that she did not mention the unwanted sexual contact to the police;

g) She said it was sometime the next morning, possibly at 11:00 or 12:00, that she and the accused went back upstairs, and she was given her phone to text R.M. She said she told the accused that R.M. was coming to go for coffee and that she would be back;

h) She testified that the code word she texted R.M. was "Pina Colada";

i) She agreed that she and R.M. went to Kelowna and attended a concert. She did not agree that the trip and concert had been pre- arranged;

j) She disagreed that she could have left the apartment at any time;

k) She agreed that she and the accused had been socializing with others and that there had been drinking and cocaine use during the day; [ 15 ] R.M. also testified in relation to the events of Incident #2. In direct examination, she testified that she and S.M. had set up a code word "Pina Colada" which was to be used when something was wrong. She testified that on July 23, she received a text message from S.M. with that code word. She testified she immediately drove to the accused's apartment, which was approximately a 10-minute drive.

She said that when she arrived, she texted S.M., and that within about five minutes of the text, S.M. came out and got into her car. She described S.M. as being very rigid and refusing to make eye contact. She said that she observed bruising on S.M.'s neck. She said that she badgered S.M. until S.M. finally opened up and told her what had happened. She said that the two of them then went to pack bags and they left for Vancouver, where they stayed a couple of days, and then went to Kelowna. She said that they stayed in Kelowna for three nights.

She testified that the bruising she observed in the car got darker over time. [ 16 ] In cross-examination, R.M. testified:

a) The trip they took was one week. They would have spent more than two days in Vancouver. They returned on the following Sunday or Monday;

b) The trip was not prearranged. They decided to attend the Kelowna concert while they were in Vancouver. She had her mother purchase the tickets for them while they were in Vancouver. After consulting her phone, she testified that the tickets for the concert were purchased on July 28, 2018;

c) She waited in the driveway for S.M. to come out of the house;

d) She agreed that she did not like the accused and thought the relationship between S.M. and the accused was toxic; and

e) She also agreed that she initially saw only one mark on S.M., which was a redness-like irritation, but which later developed into a bruise about the size of a toonie. She said S.M. later showed her other marks. [ 17 ] In re-direct examination, R.M. confirmed that the concert tickets were purchased on July 28, 2018. August 11, 2018 – Incident #3 [ 18 ] In reference to the third incident, S.M. testified in direct examination that she was sleeping at the accused's apartment on Carey Road when she was awakened by him strangling her.

She said that he had gone through her phone and found something that made him angry. She said the strangling lasted maybe 30 to 60 seconds. When he got off her, she screamed. He then covered her mouth. She believes that he again strangled her, but not for long. She said he then took her engagement ring and was going to flush it down the toilet. She said she tried to stop him from flushing the ring. She said that it was at this point that the police knocked on the back door, came in, and asked what was going on. She testified that she told the police only that there was a fight over the ring.

She did not tell them about being strangled. She said that she was scared to tell them because she did not know what would happen to the accused or her if she did. She said that she did not know what to do. She said that the police remained on the scene for 15 or 20 minutes. They then called her a cab and watched her leave. She went home and locked her doors and windows. [ 19 ] In cross-examination in relation to the third incident S.M. testified:

a) She arrived at the accused's house late in the afternoon around 3:00 p.m.;

b) She was strangled twice by the accused that night;

c) She agreed she did not have any bruises from those stranglings;

d) Her best guess was that it was about 1:00 a.m. that the police arrived;

e) She and the accused were fighting about the ring just before the police came;

f) They were in the basement at the time the police came. The accused got off her and went to talk to the police. The police took him outside;

g) She agreed that the police were concerned and offered assistance and that she had the opportunity to tell them what happened, but did not;

h) She agreed that she had been drinking, but said she had not been doing any drugs that day;

i) She agreed that there was an argument over the ring, but did not agree that that was the extent of the physical contact; and

j) She agreed that any physical marks left were minimal or faint. [ 20 ] Constables Benjamin Scoones and Stephen Reichert both testified in relation to the third incident. [ 21 ] Constable Scoones testified that he attended at the Carey Road house on August 11, 2018, at 3:45 a.m., together with Constable Reichert. He said that Constable Reichert looked into the window and then said the male had grabbed the female. He and Constable Reichert then went around the house and knocked on the door. He said both parties presented themselves. The male was arrested and taken to the police vehicle.

He remained with the female. He said the female told him that she and the male had been arguing and that the

argument escalated over the day with drinking and cocaine. She told him the argument was over a ring, that she had attempted to flush the ring, and that the accused picked her up to prevent her from flushing it. She told him she was not injured and that the accused had not been directly violent with her. [ 22 ] He then consulted with Constable Reichert, who said that the accused had told him the same story. He said they then read a safety plan to S.M. and arranged for her to leave the residence. [ 23 ] Constable Scoones did not believe that S.M. was heavily intoxicated.

He said that she seemed coherent and able to follow the conversation. [ 24 ] In cross-examination, Constable Scoones testified that:

a) He agreed he would look past a statement from a person that they were fine if he noticed a physical injury or a dishevelled house;

b) He saw no injuries on S.M.;

c) He agreed that the stories of the two were consistent, with the exception of who threw the engagement ring;

d) Regarding cocaine use, he said he was told by S.M. that the accused had used cocaine, not her;

e) Regarding S.M.'s demeanour, he said that she appeared to be nervous and to be withholding information, but did not seem fearful. He said he felt there was more to the story, but because she had no physical injuries, he had to take what she said at face value; and

f) He testified that they were dispatched to the residence because of a dropped 9-1-1 call. [ 25 ] Constable Reichert in direct examination testified that he and Constable Scoones were dispatched to the Carey Road house because of a dropped 9-1-1 call. He said that when they arrived at the location, they found a spot to observe what was happening. He said that he looked in a window and could see a male and female in the living room talking. The male was on his knees and looked quite distressed. The female was on the couch. The couple were having an emotional conversation. He said that things then moved quickly.

The male and female both got on their feet and the male physically wrapped his arms around the female and began to pull her down the hall. The female attempted to grab the wall to stay where she was. [ 26 ] Believing there was some urgency, he and Constable Scoones went to the back of the house for access. The back door was ajar. He announced their presence and was met by the accused, who identified himself. He said they separated S.M. and the accused. He spoke with the accused and Constable Scoones spoke with S.M. He and Constable Scoones then compared the stories they had been given, which were similar.

He did not believe there was an imminent risk requiring that the accused remain in custody or that there had been an assault. [ 27 ] In cross-examination, Constable Reichert testified that:

a) He did not believe he ever entered into the suite;

b) The male arrived quickly at the back door when he announced his presence;

c) When asked if the accused said anything about the 9-1-1 call, he replied he believed the accused had told him that he, the accused, had called 9-1-1;

d) He agreed that his notes stated that the accused had said he called 9-1-1;

e) When asked what the accused had told him at the police cruiser, he replied that he did not recall exactly. However, he did recall the accused told him he and S.M. were having an argument and that things had been challenging for them. He said it was not entirely clear to him, but there was something going on in the relationship and there was a disagreement about a ring and what it symbolized;

f) He agreed that he was satisfied there was no assault; and

g) He did not agree that there were no red flags. He said the physical grabbing of S.M. was a concern, but she did not look like she was hurt. March 1, 2019 – Incident #4 [ 28 ] The fourth and final incident occurred at Ucluelet. In relation to this incident, S.M. testified in direct examination that she and the accused went on an overnight trip to Ucluelet in March 2019. She said she received a phone call in the evening that she missed. She said the accused took her phone and called the number. The caller was a male friend. She said that the accused then threw the phone, jumped her on the bed, and strangled her.

She said she reached up to slap him and her bracelet cut his eye. She said they then calmed down and went for a walk. When they returned after an hour or so, the accused brought up the topic of the phone call again. She said she told him that she was going downstairs for some air. She said he then grabbed her by the hair or hoodie and pulled her back. She said they ended up in the bedroom and the accused kicked her on the thigh. She said the accused then got on top of her on the bed and squeezed her neck with both hands. She said he squeezed very tightly and she could not get air, but it did not last long.

He then got off her. He was crying, pacing, angry, and upset. She said he then would not let her leave the room or sleep. She said that when she tried to leave, he blocked the door with his arms and body. She said she was prevented from leaving from about 8:00 or 10:00 in the evening until the next day when they checked out at 11:00 a.m. She said she attempted to leave maybe three times. [ 29 ] She said she did not try to leave more than three times because she had nowhere to go for help and the accused had her keys and phone.

[ 30 ] Also, in direct examination, in relation to the Ucluelet incident, S.M. testified that she and the accused had both consumed alcohol and that the accused had used cocaine. She said that she believed her level of intoxication was a four or five out of ten, and that the accused had used cocaine ten times. [ 31 ] S.M.'s evidence on cross-examination in relation to the Ucluelet incident included:

a) She did not agree that they went to Ucluelet for two nights;

b) She believed they left Victoria at about 6:00 a.m. in the morning and checked in at 3:00 p.m. While waiting to check in, they walked in a park and on the beach and went into town. She later agreed that they left Victoria at 11:00 a.m., and that the check-in could have been 4:00 p.m.;

c) She said she had a small bruise on her thigh from where she had been kicked. She agreed that she did not document the bruise;

d) After the first strangling, they calmed down and went for a walk for about one hour;

e) It was after the second strangling that the accused took her phone;

f) She agreed there had been drinking and use of cocaine;

g) She did not agree that it was her that hit the accused;

h) She agreed that after this assault, she ended the relationship; and

i) She agreed that she did not go to the police or to see a doctor after this incident. Breach of Condition [ 32 ] On March 27, 2021, the accused was released on $1,000 bail and on various conditions. Condition 3 was as follows: You must not have no contact or communication, directly or indirectly, with [S.M.] or any of her friends and family known to you. You must not post any images or comments about [S.M.] on any social media. [ 33 ] In direct examination, S.M. identified two posts made on Instagram by "Daggisvision".

The first post contains an image of the original indictment in this matter containing Counts 1 through 9. (It is to be noted that the indictment does not contain the name of the complainant S.M.) Below the image of the indictment is the following: Crazy escort cokeh*es wonder how voldermort gonna feel know I'm getting all voldermorts drug dealer buddies, escort clients and "co workers" subpoenaed and also how voldermort recruited me to work for Rq hmm she's getting subpoenaed too. They don't like lying under oath LOL. Man a lot of ppl are gonna get out'd all cuz little whorevoldermort couldn't handle memes.

Haha imagine that someone ratting on memes cuz that's what this is and this is gonna be DAGGISVISION Court Tv edition. [ 34 ] The second post is an image of the conditions of the release order with S.M.'s name blacked out. Below the image is the following: SURVIVOR OF NARCISSISTIC ABUSE - THIS COURT CASE IS MUCH MORE THEN PEOPLE REALIZE THIS IS MY FIGHT AGAINST NARCISSISM . . . [ 35 ] S.M. testified that “Daggisvision” is the online persona of the accused and that the posts were made in March or April of 2021. She testified that the posts referred to her.

She said the accused referred to her as Voldemort on multiple posts. In cross-examination, S.M. agreed that the Instagram posts did not reference her by name. General Evidence [ 36 ] S.M. gave evidence in direct examination and in cross-examination of more general matters, not confined to any particular incident. This evidence was as follows:

a) In direct examination, when asked about her relationship with the accused during 2018 and 2019, she testified that they were dating and were boyfriend and girlfriend. However, as indicated above, she later testified to a fight involving an engagement ring. Additionally, in cross-examination, when it was put to her that they were engaged, her reply was that she guessed or supposed that was true, since she had a ring. She later in cross-examination equivocated on whether they were engaged. She testified that the accused gave her a ring but never actually asked her to marry him.

She also said that she never considered herself engaged and that she never told anyone they were engaged. She later said that when she was with the accused, she told people she was engaged. It is to be noted that R.M. testified that S.M. told lots of people about her engagement.

b) In cross-examination, S.M. identified a letter she had written to the court at the request of the accused and which appears to be for a sentencing hearing. She acknowledged the letter was possibly written in October 2018. In the letter, she states that the accused is a loving, caring, loyal, self-aware, and understanding man. She also wrote that in the past few months without him, she lost a pregnancy, they lost "our apartment", and that she had to drop out of school to make ends meet. She further wrote that they were trying to move on with their lives and start a family.

In relation to this letter, she acknowledged that it contained “embellishments”. She agreed that she had not dropped out of school, that the accused was not supporting her, and that they had never lived together; all things suggested or stated

outright in the letter. She ultimately agreed that the letter was false, that she knew it was false, and that she knew it would be provided toa judge. She testified that in writing the letter, she was just trying to help the accused who had asked her to write it. She also testified thatthe accused had manipulated her into writing the letter, that he was controlling her, and that she felt she was in danger.

c) In direct examination, S.M. testified that during 2018 and 2019, she worked as an educational assistant with special needs children.However, in cross-examination, she testified to working at Brown's Restaurant for a period of time and to being off work for a period oftime because of a car accident. She further testified to working at Mediskin off and on. She finally testified that it was only in Decemberof 2018 that she received a diploma to work as an educational assistant, and that it was only during the Ucluelet incident that she workedas such.

d) In relation to her school attendance, in cross-examination, S.M. testified that she was taking biology at Camosun College at the timeof the first incident. She later clarified that she attended school for only one semester and that she did not drop out, but just did not goback. However, she also testified, as I have indicated, to getting a diploma in December 2018.

e) It was put to S.M. in cross-examination that she brought the charges against the accused only after seeing an online post that he hadmade. She replied that she brought the charges because the accused continued to harass her. She said she felt she had no choice becauseof his stalking and harassment, and that she brought the charges because she was scared of him. Submissions [37] The submissions of the parties addressed primarily the credibility of the complainant, as this was viewed as the central issue. By Crown [38] In

summary, while conceding to some minor issues with S.M.'s evidence, the Crown submits that she was cooperative andforthright, and that the critical aspects of her evidence were internally consistent and not undermined, even though she faced a difficultand challenging cross-examination. The Crown says her evidence supports a conviction on the various charges and is corroborated, atleast in part, by the photographs, by the evidence of R.M., and by the evidence of Constables Scoones and Reichert. [39] The Crown also submits that S.M.'s evidence needs to be considered in the context of a woman in her circumstances.

The Crownsays that the letter of support written in October 2018 and S.M.'s statement to the police during the August 11, 2018, incident can beexplained by the fact that S.M. was in an abusive relationship and under the emotional control of or in fear of the accused. By Accused [40] The accused submits that S.M. is not a credible or reliable. In particular, the accused submits:

a) S.M. has been shown to be demonstrably untruthful in her statement to Constable Scoones and in her letter to the court written inOctober 2018;

b) S.M.'s evidence is inconsistent and contradictory in several particulars;

c) S.M.’s evidence was simply unbelievable at times;

d) S.M.’s perception and recollection of what occurred was influenced by drugs and alcohol; and

e) S.M. fabricated what occurred to get back at the accused for derogatory posts he had made online about her and R.M. [41] The accused also submits that the evidence of R.M. is not credible or reliable. [42] The accused further submits that his statement to Constable Reichert is admissible as part of the res gestae and is a denial thatany offences occurred.

I note here that the Crown agrees the statement by the accused is admissible as part of the res gestae of thatoffence. [43] The accused finally submits that when all of the evidence is considered and analyzed pursuant to the framework established bythe Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, , (S.C.C.) [W.(D.)] that there is a reasonable doubt andthat I must acquit. Legal Principles Elements of the Offences [44] The parties made minimal submissions on the elements of the various offences for which the accused is charged.

Nevertheless,in the interests of completeness, I intend to summarily set out the elements of each of the offences. Forcible/Unlawful Confinement [45] Forcible or unlawful confinement is addressed in s. 279(2) of the Criminal Code. It provides:

(2) Everyone who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years . . . [ 46 ] Forcible or unlawful confinement occurs when, for any significant period of time, the victim is coercively restrained contrary to their wishes, such that they could not move about according to their own inclination and desire: R. v.

Pritchard , 2008 SCC 59 at para. 24 . [ 47 ] The elements of unlawful confinement that must be proved by the Crown beyond a reasonable doubt are: 1) That the accused is the person who committed the offence; 2) That the offence occurred at the time and place set out in the indictment; 3) That the accused physically restrained the victim or complainant against her will; 4) That the restraint was without lawful authority; and 5) That the accused intended to restrain the complainant physically or forcibly against her will. [ 48 ] In R. v.

Magoon , 2018 SCC 14 at para. 64 , the elements were summarily described as follows: [64] . . . the Crown must establish that (1) the accused confined the victim, and (2) the confinement was unlawful. In Pritchard , Binnie J. held that unlawful confinement occurs if “for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire” . . . “unlawful confinement . . . consists of restricting the victim’s liberty, but not his or her ability to escape.

The restriction need not be to a particular place or involve total physical restraint” . . . Restraint of the victim through physical acts of violence is sufficient but not necessary to establish unlawful confinement. Confinement can be effected “by fear, intimidation and psychological and other means” . . . Assault [ 49 ] Assault is addressed in ss. 265 and 266 of the Criminal Code . Section 265(1) provides: 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; [ 50 ]

Section 266 provides that: 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. [ 51 ] The essential elements of assault that must be proved by the Crown beyond a reasonable doubt are: 1) That the accused is the person who committed the alleged offence; 2) That the offence occurred at the time and place set out in the indictment; 3) That the accused applied force directly or indirectly to the complainant; 4) That the accused intended to apply the force; 5) That the complainant did not consent to the application of force; and 6) That the accused knew the complainant did not consent.

Assault causing bodily harm [ 52 ] Assault causing bodily harm is addressed in ss. 267 and 269 of the Criminal Code as follows: 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years . . . in committing an assault, . . . (

b) causes bodily harm to the complainant . . . (

c) chokes, suffocates or strangles the complainant. [ 53 ]

Section 269 provides: 269 Every one who unlawfully causes bodily harm to any person is guilty of

(

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

b) an offence punishable on

summary conviction. [54] The essential elements of assault causing bodily harm that must be proved by the Crown beyond a reasonable doubt are theessential elements of assault, plus the existence of bodily harm caused by the assault: see for example R. v. Pameolik, 2020 NUCA 13 atpara. 70. Reasonable Doubt [55] The onus is on the Crown to prove all of the elements of the offences beyond a reasonable doubt: R. v.

Morin, [1988] 2 S.C.R.345, (S.C.C.) at paras. 361-362. [56] A reasonable doubt does not involve proof to an absolute certainty, but requires something more than that the accused isprobably or likely guilty. Along the spectrum of probabilities, a reasonable doubt lies much closer to an absolute certainty than to proofon a balance of probabilities. A reasonable doubt must be based on reason and common sense and logically derived from the evidence orabsence of evidence: see generally R. v. Lifchus, [1997] 3 S.C.R. 320, (S.C.C.) at para. 36, and R. v. Starr, 2000 SCC40 at para. 242. Credibility [57] In R. v.

Ewanchuk, [1999] 1 S.C.R. 330, (S.C.C.), the Supreme Court has made it clear that the reasonabledoubt concept applies equally to issues of credibility and reliability. [58] Credibility and reliability are distinct but related concepts, although they are often considered together. Credibility concerns thehonesty of a witness. Reliability concerns the ability of a witness to provide accurate information. A witness must be credible to givereliable evidence, but a finding that a witness is credible does not necessarily mean the witness is reliable.

A credible witness can giveunreliable evidence. [59] I may believe none, part, or all of a witness's evidence and may attach different weight to different parts of the evidence. [60] The factors to be considered when assessing credibility and reliability include: • the ability of the witness to perceive events; • the ability of the witness to accurately recall the events; • the ability of the witness to recount those events accurately; • the ability of a witness to resist the influence of interest to modify their recollection; • internal inconsistencies in the evidence of a witness; • prior inconsistent statements made by the witness; • inconsistencies between the witness's testimony and the testimony of other witnesses; • the existence of independent evidence that confirms or contradicts the witness's testimony, for example, does the witness'sevidence harmonize with the independent evidence that has been accepted; • whether the witness has given exaggerated or embellished evidence, (although absence of exaggeration or embellishment does notnecessarily enhance credibility); • whether the witness has a motive to lie, (although absence of a motive to lie does not generally enhance credibility); • evidence pertaining to the honesty and forthrightness of the witness, such as having given false statements to the police; • the “sense” of the evidence, when weighed with common sense does it seem impossible or unlikely, does it make sense; and • the demeanour of the witness, but demeanour is a factor that is to be used with caution. (See generally: Bradshaw v.

Stenner, 2010 BCSC 1398 at para. 186; Novak Estate (Re), 2008 NSSC 283 at paras. 36-37; and R. v. S.A.S.,2021 BCPC 69 at paras. 15, 21-25) [61] Ultimately, the question is whether the evidence of the witness is consistent with the probabilities affecting the case as a wholeand shown to be in existence at the time. W.(D.) Analysis [62] Although the accused did not testify, the statements that he made to Constable Reichert on the occasion of the August 11, 2018,incident were in evidence as part of the res gestae.

The accused characterizes his statements as an out-of-court denial by him whichattracts the analytical framework set out by the Supreme Court of Canada in W.(D.).

[ 63 ] The framework established in W.(D.) is: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole . . . Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused . . . you must acquit. Second, if you do not believe the [evidence] 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 which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 64 ] The rationale behind the W.(D.) framework was explained in R. v. Dick , 2018 BCCA 343 at para. 27 .

Its purpose is to ensure that the principle of reasonable doubt is clearly respected and there is no risk that the burden of proof which is throughout on the Crown is unintentionally shifted to the accused. [ 65 ] The W.(D.) framework, as modified by subsequent case law, was summarized by Justice Shergill in R. v. Gerrard , 2020 BCSC 1833 at para. 113 as follows: [113] The guidance provided by the Court in R. v. W. (D.) . . . for sexual assault jury trials has often been relied on in judge-alone sexual offence trials where the accused and complainant provide competing versions of events.

The Alberta Court of Appeal recently conducted an extensive review of the W. (D.) instruction in R v. Ryon . . . The Court noted that the burden of proof remains on the Crown throughout and, subject to specific defences such as those found in s. 16 of the Criminal Code , the accused person is never required to prove their innocence or disprove the evidence led by the Crown. The appellate court suggested revised instructions at para. 51, the salient points of which are as follows: a.

If the jury believes the accused's evidence denying guilt (or any other exculpatory evidence to that effect), or if they are not confident they can accept the Crown's version of events, they must acquit. b. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit. c.

Even if the jury completely rejects the accused's evidence (or where applicable, other exculpatory evidence), they may not simply assume the Crown's version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused's evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused's guilt. [ 66 ] The W.(D.) framework is not limited to circumstances where the accused testifies in court.

The framework applies equally to an out-of-court denial made by an accused: R. v. Sanhueza , 2020 BCCA 279 at para. 37 . Analysis [ 67 ] As indicated, the parties are ad idem that the credibility and reliability of the evidence of S.M. is central to the disposition of these matters. The accused says her evidence is not credible or reliable, whereas the Crown says it is. The accused also challenges the credibility and reliability of the testimony of R.M. [ 68 ] I will first address the credibility of R.M. and will then address the credibility of S.M.

Thereafter, I will address the evidence of Constable Scoones and Reichert, and the evidence of the accused as contained in his statements to Constable Reichert. [ 69 ] I note that although I must, of necessity, address the particular submissions of the accused in relation to the credibility of S.M. and R.M., I bear in mind throughout that the accused does not bear any onus of disproving their credibility or any part of their evidence. The onus of proving the commission of the offences beyond a reasonable doubt remains on the Crown throughout.

R.M.’s Credibility [ 70 ] The accused submits that R.M. is not a credible witness for the following reasons:

a) R.M.'s evidence differed from S.M.'s evidence in that R.M. said she waited in the car five minutes for S.M. to come out of the house, whereas S.M. said R.M. came to the door and knocked. The accused submits these are “polar opposite” versions of events;

b) R.M. testified that she and S.M. were good friends who talked every day, yet she had no memory of S.M.'s school attendance or work;

c) R.M. acknowledged talking to S.M. before giving her own statements to police;

d) R.M.'s evidence regarding the Kelowna trip was not consistent with S.M.'s evidence, in that, i. S.M. said the trip and the concert they attended were preplanned whereas R.M. said they were not, and ii. R.M. said they were gone approximately one week, whereas S.M. said they were away for two weeks; and

e) R.M. testified only to seeing a bruise on S.M.'s neck, whereas S.M. said she had bruises and scrapes on her knees which R.M. should have been able to see as they went to the beach while in Vancouver. [ 71 ] I do not consider that any of the above detract in any significant measure from R.M.'s credibility. My reasons are as follows:

a) Although the evidence of R.M. and S.M. differed as to whether R.M. waited in the car or went to the door of the residence on July 23, 2018, the difference is trivial and insignificant. They both testified that R.M. attended at the residence in response to a coded text message, "Pina Colada". Whether R.M. waited in her car or knocked on the door of the residence is not material.

b) The submission that R.M. should be disbelieved because she had no memory of S.M.'s school attendance or work is not supported by the actual evidence she gave. In cross-examination, R.M. merely testified that she did not recall if S.M. was attending school in 2018. She confirmed that she and S.M. both attended Camosun College, but testified that she graduated in 2016, whereas S.M. took some courses after 2016 before eventually receiving her degree from Camosun. Thus, R.M. did have significant knowledge of S.M.'s school attendance.

Similarly, with respect to S.M.'s employment, R.M. was merely asked if she knew of S.M.'s employment at the time of the second incident. R.M. replied that she believed they were both not working at the time, which is why they were able to leave for Vancouver and Kelowna immediately.

c) The submission that R.M. should be disbelieved because she acknowledged talking to S.M. before giving her own statement to police is also not persuasive. R.M.'s actual evidence was that she gave a statement to the police on April 20, 2021. She testified that the statement contained what she had been told by S.M., as well as her own observations. She further testified that she would have let S.M. know that she was giving the statement. There was nothing in her evidence to suggest that she and S.M. in any way colluded or collaborated in relation to the content of the statements they made to police.

d) The difference between R.M.'s evidence and S.M.'s evidence regarding the trip to Kelowna following the second incident is somewhat exaggerated by the accused. When asked in cross-examination if the trip to Kelowna was preplanned, S.M. initially testified that she could not clearly recall, but later testified that it was not prearranged. This is entirely consistent with R.M.'s evidence that the trip was not preplanned. Moreover, during the course of giving her cross-examination, R.M. was able to confirm that the tickets for the concert they attended in Kelowna were purchased on July 28, 2018.

She was able to confirm this by retrieving digital copies of the invoice for the purchase of the tickets. Additionally, whether S.M. and R.M. were away from Victoria for two weeks or one week is peripheral and immaterial.

e) Finally, in my view, R.M.'s credibility is not diminished by reason of the fact that she testified that she did not recall seeing any other marks on S.M. at the beach. She testified that she noticed the mark on S.M.'s neck when S.M. got into the car on July 23. She testified that this mark later developed into a bruise that was about the size of a toonie. She also testified that S.M. later showed her other marks. She was not asked where these other marks were located on S.M.'s body.

Concerning the part day they spent at the beach, she assumed S.M. was wearing a bathing suit and acknowledged that she would have been able to see other marks, but testified that she was not staring and could not recall seeing anything specific. Her evidence was candid and, in my view, truthful. She did not notice any additional marks on S.M.'s body at the beach. This does not mean that her other evidence is compromised. [ 72 ] It is my view that R.M. gave her evidence in a forthright, careful, and thoughtful manner.

She readily acknowledged when she did not have a clear or accurate recollection and was careful to not speculate or exaggerate. She also readily acknowledged things that were not necessarily helpful to the Crown's case. For example, she acknowledged that she wanted to protect S.M. and she made no effort to hide the fact that she disliked the accused. S.M.’s Credibility [ 73 ] Before I address the factors that the accused submits undermine S.M.’s credibility or reliability, I observe that critical aspects of her evidence are corroborated by other evidence. In particular:

a) In relation to the first incident, S.M.'s testimony that she was assaulted and injured is partly corroborated by the photographs that were entered into evidence as Exhibit #2. These photographs show marks on her left neck and her right forearm. I appreciate that the accused submits there are issues with these photographs, in that they were taken in two separate locations. However, S.M. testified as to why this was so. She said some were taken in the bathroom of the accused's apartment and some were taken after she returned home.

b) In relation to the second incident, S.M.'s evidence that she was assaulted and injured in this incident is partly corroborated by the testimony of R.M. As I have indicated, R.M. testified that she received a text from S.M. with the code word "Pina Colada", a code word that they had set up for emergencies. R.M. further testified that when S.M. got into her car, she was very rigid and refused to make eye contact. Importantly, R.M. testified to seeing a mark on S.M.'s neck which later developed into a bruise about the size of a toonie. I accept all of R.M.'s evidence in these respects and find they corroborate the evidence of S.M.

c) In relation to the third incident, S.M.'s evidence that she was assaulted by the accused is partly corroborated by the testimony of Constables Scoones and Reichert, especially Constable Reichert. Constable Reichert testified that when he looked in the window, he observed S.M. and the accused having an emotional conversation. He then observed the accused physically wrap his arms around S.M. and begin to pull her down the hall, while S.M. resisted by attempting to grab the wall.

Although Constable Reichert elected not to make an arrest, what he observed was an application of force by the accused to S.M. and her attempt to resist that force. [ 74 ] In my view, all of the above constitute important evidence corroborating significant aspects of S.M.'s evidence in relation to the

first, second, and third incidents. [ 75 ] The accused points to multiple issues with S.M.'s evidence which he submits undermine her credibility. The most significant are in relation to what she told police on August 11, 2018, and in relation to the letter she wrote in October 2018 for use in court proceedings. [ 76 ] It is clear from both the evidence of S.M. and the evidence of Constable Scoones that on August 11, 2018, S.M. did not tell the police she had been assaulted or confined by the accused, although she had the opportunity to do so.

To the contrary, she told them that there had been a fight over the ring and, according to Constable Scoones, that the accused had not been directly violent with her. Her statement to Constable Scoones is obviously inconsistent with her evidence as to what transpired that night. [ 77 ] However, S.M. explained this inconsistency by stating that she was scared to tell the police what had happened. She said she did not know what would happen to the accused or her if she did. She said that she did not know what to do. [ 78 ] I accept S.M.'s explanation of why she did not tell the police of the assault.

She and the accused were in an intimate relationship. It is believable that she would be concerned about the consequences if she had told the police that she had been strangled by the accused and prevented from leaving his residence. Such a disclosure would have had immediate consequences for the accused and for their relationship. Much like victims of sexual assault, it cannot be assumed that victims of intimate partner violence will respond in a particular way. That is to say, it cannot be assumed that because the police had arrived, S.M. would feel sufficiently safe to tell the truth about what transpired.

Some victims might react in this way, but others would not. [ 79 ] Similar considerations apply to the letter that S.M. wrote in October 2018. The contents of that letter are difficult, if not impossible, to reconcile with S.M.'s evidence about what transpired in June, July, and August of 2018. Additionally, the letter contains several admitted untruths. She suggested in the letter that the accused was supporting her, that they had lost their apartment, and that she had to drop out of school, all of which were untrue.

Ordinarily providing untruthful statements to a court would be a serious factor undermining the credibility of a witness. However, the same result does not necessarily flow where the letter is written by a victim of intimate partner violence to protect the intimate partner. [ 80 ] S.M. testified that she was asked by the accused to write the letter and that she felt manipulated, controlled, and in danger.

I accept her explanation for writing the letter and, in the circumstances, I do not consider the letter undermines her credibility. [ 81 ] The accused points to other inconsistencies or alleged untruths with S.M.'s evidence which he says undermine her credibility. These are:

a) Her evidence was inconsistent in respect of the June 29, 2018, incident as to whether the roommate merely knocked on the door or entered into the room;

b) Her evidence that the police entered the apartment during the August 11, 2018, incident was not consistent with the evidence of Constables Scoones and Reichert;

c) In relation to the fourth incident, she gave inconsistent evidence about the time of day they left Victoria for Ucluelet and about the check-in time at the hotel;

d) Her evidence of where she worked and when she attended school was inconsistent and contradictory; and

e) She gave untruthful evidence about the engagement. [ 82 ] I agree that S.M. gave inconsistent evidence about whether the roommate entered the room during the first incident and her evidence about the police entering into the apartment during the third incident was inconsistent with the evidence of Constables Scoones and Reichert. I also agree that S.M.'s evidence about the timing of when they left Victoria and checked into the hotel was inconsistent.

However, these matters are all peripheral and, in my view, do not undermine her credibility or reliability to any significant degree. [ 83 ] I do not agree that S.M.'s credibility is undermined at all by her evidence about where she worked or when she attended school. She gave minimal evidence on these topics as they are completely irrelevant to the issues. Moreover, the evidence she did give was not inconsistent in any meaningful way.

She worked at various locations during the period in issue and she did attend Camosun College for a period of time. [ 84 ] Concerning S.M.'s evidence about whether she and the accused were engaged, I do not agree that her evidence was untruthful. It was, however, inconsistent and perplexing. As indicated, she initially testified that their relationship was one of boyfriend and girlfriend, but later testified to having an engagement ring.

Notwithstanding having an engagement ring, she was reluctant to acknowledge they were engaged when they clearly were. [ 85 ] Thus, her evidence about her and the accused being boyfriend and girlfriend was somewhat misleading, but only if considered in isolation. I do not consider that she was attempting to mislead the court by this evidence.

As I indicated, she readily acknowledged the existence of the ring. [ 86 ] The accused additionally submits that S.M.'s evidence is simply unbelievable in relation to the first and fourth incidents. [ 87 ] In respect of the first incident, the accused submits that S.M.'s evidence is unbelievable in that she would have said something to the roommate who either knocked on the door or came into the room. I do not agree. With respect to this incident, S.M. was asked why she did not say something to the roommate. She replied that she did not think he would do anything and that he seemed to know what was going on.

Later in cross-examination, when asked why she said the roommate seemed to know what was going on, she replied that he would have known because of the screaming and tussling. [ 88 ] I accept S.M.'s explanation of why she did not say anything to the roommate. In doing so, I also acknowledge that S.M. was in a

precarious situation and I must be very wary of relying on stereotypes or assumptions about how ordinary people would react in such situations. [ 89 ] In respect of the fourth incident, the accused submits that it is not believable that the events could have happened as described by S.M. without someone hearing. I do not agree. There is simply no evidence that there were other persons or hotel guests nearby who could have heard what is happening. [ 90 ] The accused further submits that S.M.'s evidence is unreliable in relation to the second and fourth incidents, as she had been using both cocaine and alcohol.

I agree that alcohol and drug use can be factors going to the reliability of a witness's evidence. However, I do not agree that S.M.'s level of intoxication was such that she misperceived or misremembered what occurred. She described her level of intoxication at the time of the second and fourth incidents as a four or five out of 10. The events she described, including being detained for hours and being strangled, are not likely to be misperceived or misremembered by a person with that level of intoxication. [ 91 ] The accused finally submits that S.M. had a motive to lie.

More particularly, the accused submits that S.M.'s motive was to get back at the accused for posting negative comments about her online. [ 92 ] I accept that it was only after the accused made some negative posts about S.M. and R.M. that the police became involved and charges were ultimately laid. I further accept that the posting of these negative comments by the accused motivated S.M. to file a complaint. However, I do not accept that the complaints were made up. I come to this conclusion, first, because of the corroborating evidence I have addressed above.

Second, R.M. testified that when she picked up S.M. after the second incident, that S.M. eventually told her what transpired. This evidence is not admissible to bolster the testimony of S.M., but it is admissible to counter the submission of recent fabrication. R.M. testified that S.M. eventually told her that the accused had been keeping her in the house and that he took her phone, that he choked her, and that she tried to get away down the hall, and he pulled her back by the hair. S.M. told R.M. these things in July of 2018, long before the accused posted the negative comments.

Constables Scoones and Reichert [ 93 ] The accused submits that I should give a great deal of weight to "the assessment" made by Constable Scoones and Constable Reichert on August 11, 2018, as they were experienced officers and trained to address and assess domestic violence situations.

As I understand this submission, the accused is inviting me to conclude that there was no assault on the night of August 11, 2018, because Constables Scoones and Reichert assessed there was no assault and did not arrest the accused. [ 94 ] I do not entirely agree with the accused's characterization of the assessment of Constables Scoones and Reichert. It is true that the accused was not arrested and charged the night of August 11, 2018, and Constable Reichert did testify that he was satisfied there was no assault.

However, Constable Scoones testified S.M. appeared to be nervous and withholding information, and he felt there was more to the story than he had been given. Constable Reichert also testified that there were “red flags” or things that caused him some concern. [ 95 ] Thus, their assessment was not simply that there had been no assault.

Considering the whole of their evidence, they had some concerns but proceeded as they did because they had been given similar stories by S.M. and the accused and were satisfied that S.M. had not been injured and was not in any danger. [ 96 ] In any event, Constables Scoones and Reichert were not given the full story as to what had transpired that evening. Moreover, I am not permitted to defer to the assessment of Constables Scoones and Reichert as to whether an assault had been committed. To do so would be to abandon my role and duty as the judge.

The Accused’s Evidence and W.(D.) [ 97 ] The accused relies on the statement he gave to Constable Reichert on August 11, 2018, and submits that the statement was a denial of the offences. [ 98 ] In his evidence, Constable Reichert referred to two conversations with the accused. The first was when he was met at the door by the accused. Constable Reichert believed the accused told him that he, the accused, had called 9-1-1. Constable Reichert could not recall why the accused would have called 9-1-1. [ 99 ] The second conversation occurred after the accused was taken to the police car.

Constable Reichert testified that he could not recall exactly what the accused told him, but he recalled the accused saying he and S.M. were having an argument and that things had been challenging for them. Constable Reichert believed they were recently engaged and that there was some argument over an engagement ring. [ 100 ] Constable Reichert testified that the explanation was not overly clear to him, except that there was something going on with the relationship and there was a disagreement about the ring and what it symbolized. [ 101 ] The accused's evidence is consistent with part of S.M.'s evidence.

S.M. likewise testified that there was an argument and that it involved the engagement ring. Both the accused and S.M. separately conveyed this information to the police. I accept the evidence of both of them that there was an argument and that it involved an engagement ring. The problem is, of course, that S.M. also testified to events that occurred prior to the argument over the engagement ring. The accused's statements to Constable Reichert did not address these events. [ 102 ] This is not a case such as R. v.

A.D. , 2017 BCSC 2496 , where the fulsome evidence of the accused was before the court in the form of a videotaped statement he had given to police. Here we have only a brief oral statement that did not actually address the facts underpinning the offence or offences. Hence, I find the W.(D.) framework to be not particularly applicable in the circumstances.

[ 103 ] Nevertheless, the Crown is required to prove all of the elements of the various offences beyond a reasonable doubt, and I must carefully assess all of the evidence, including the statements the accused made to Constable Reichert. Conclusions on Counts 2, 4, 5, 7, 8 and 9 [ 104 ] Considering all of the evidence, including the statements of the accused to Constable Reichert, I am satisfied that the evidence of S.M. in relation to what occurred on or about June 29, July 23, and August 11, 2018, and March 1, 2019, is credible and reliable, and that the events occurred as she testified.

Her statements made to Constable Scoones and in the letter to the court have been adequately explained and do not, in my view, undermine her credibility. Other inconsistencies or contradictions in her evidence were in relation to peripheral matters. Moreover, her evidence is corroborated in very material respects by the photographs, by the evidence of R.M., and by the evidence of Constables Scoones and Reichert. [ 105 ] I therefore find that the Crown has discharged its onus of proof beyond a reasonable doubt in relation to Counts 1, 2, 4, 5, 7, 8, and 9. More particularly:

a) In relation to Counts 1 and 2, I accept the evidence of S.M. and find beyond a reasonable doubt that on June 29, 2018, while at the accused's apartment on Yates Street, Victoria, the accused confined her to the apartment using force for a period of approximately six hours. He assaulted her by grabbing her ponytail, forcibly dragging her into a bedroom, biting her forearm, and strangling her for a brief period of approximately 15 seconds. As a consequence of that assault, she suffered bodily harm in the form of small marks and bruises.

b) In relation to Counts 4 and 5, I accept the evidence of S.M. and find beyond a reasonable doubt that on or about July 23, 2018, while at the accused's apartment on Carey Road, Victoria, the accused confined her to his apartment using force for a period of approximately 13 hours, and he assaulted her by grabbing her hair, forcibly dragging her across the floor, banging her head against the couch, and strangling her for a brief period. As a consequence of that assault, she suffered bodily harm in the form of small marks and bruises and losing consciousness for a brief period.

c) In relation to Count 7, I accept the evidence of S.M. and find beyond a reasonable doubt that on August 11, 2018, while at the accused's apartment on Carey Road, Victoria, the accused assaulted her by strangling her for approximately 30 seconds.

d) In relation to Counts 8 and 9, I accept the evidence of S.M. and find beyond a reasonable doubt that on or about March 1, 2019, at Ucluelet, the accused forcibly confined her to a hotel suite for approximately 13 hours and assaulted her by strangling her on two occasions and by kicking her.

Count 10 [ 106 ] One of the conditions of the accused's release was that he was not to post any images or comments about S.M. on any social media. [ 107 ] Count 10 of the indictment relates to the accused posting copies of the indictment and the conditions of his release online with S.M.'s name redacted, but together with the comments that I have quoted above. The parties made minimal submissions on this count. [ 108 ] Although S.M. testified that the accused referred to her as “Voldemort”, her name does not appear anywhere in the posts.

Additionally, there is no evidence that anyone other than S.M. would know that the posts were intended to refer to her. [ 109 ] Moreover, it is to be noted that the condition is simply that the accused was not to "post any images or comments about S.M." The condition did not prohibit the accused from posting about the charges and did not prohibit him from directly or indirectly posting about S.M. [ 110 ] In these circumstances, I am not satisfied that the Crown has proven beyond a reasonable doubt that the accused posted images or comments about S.M. in breach of the conditions of his release order.

Verdict [ 111 ] Mr. Denniston, please stand. [ 112 ] On Count 1 of the indictment, I find you guilty. [ 113 ] On Count 2 of the indictment, I find you guilty. [ 114 ] On Count 4 of the indictment, I find you guilty. [ 115 ] On Count 5 of the indictment, I find you guilty. [ 116 ] On Count 7 of the indictment, I find you guilty. [ 117 ] On Count 8 of the indictment, I find you guilty. [ 118 ] On Count 9 of the indictment I find you guilty. [ 119 ] On Count 10 of the indictment, I find you not guilty.

[ 120 ] Counts 3 and 6 of the indictment, as requested by the Crown, a verdict of acquittal is to be entered. [ 121 ] You can sit. [ 122 ] That concludes my reasons and verdict. “Giaschi J.”