R. v. A.I.M., 2023 BCSC 2383

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. A.I.M., 2023 BCSC 2383 Date: 20230605 Docket: 111085-2 Registry: Kamloops Rex v. A.I.M. This matter is subject to a publication ban imposed pursuant to s. 486.4(2) of the Criminal Code, R.S.C. 1985, c. C-46. Before: The Honourable Madam Justice Donegan Oral Ruling on Application for Directed Verdict Counsel for the Crown: A.D. JanseCounsel for the Accused: S. TatePlace and Date of Hearing: Kamloops, B.C. June 2, 2023Place and Date of Judgment: Kamloops, B.C.

June 5, 2023 Introduction.. 2 The Test for Directed Verdict.. 3 Essential Elements of the Offence in Count 2. 4 Positions of the Parties. 4 Discussion. 6 Is There Evidence Upon Which a Reasonable Jury, Properly Instructed, Could Return a Verdict of Guilty on Count 2?.. 15 Meaning of “Choke” and “Attempt to Choke” 17 Decision.. 24 Introduction [1] A.I.M. is being tried by a court comprised of a judge and jury on a two-count indictment. Count 1 alleges that he committed thesexual assault of [the complainant] on April 10, 2021, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 [Code].

Arising outof the same events, Count 2 charges that A.I.M., with intent to enable or assist himself to commit the indictable offence of sexual assault,did attempt to choke the complainant contrary to s. 246(

a) of the Code. [2] The Crown has now closed its case and, in the absence of the jury, the accused brings a motion for a directed verdict of acquittalin respect of Count 2. [3] In support of his application, A.I.M. initially relied upon only one decision – R. v. Charemski, (SCC), [1998] 1S.C.R. 679, where the Court outlined the test to be applied in such a motion.

When, during the course of submissions, it became clear thatthe parties were not agreed on the essential elements of this offence as it has been charged, the hearing was stood down for counsel toobtain additional authorities and make additional submissions. Mr. Tate now relies upon a number of additional authorities, which I willoutline shortly. The Crown opposes the application and relies primarily on R. v. Russ, 2018 BCSC 2133, aff’d 2019 BCCA 455 [Russ].

The Test for Directed Verdict [4] The test for a directed verdict was recently summarized by the Court of Appeal in R. v. Kirkpatrick, 2020 BCCA 136 at paras.75–76, aff’d 2022 SCC 33: [75] The test on a no-evidence motion is the same as for a directed verdict in a jury trial, or a committal at a preliminary inquiry. Thequestion is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: R. v.Arcuri, 2001 SCC 54 at para. 21, citing United States of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067 at 1080; seealso R. v.

Monteleone, (SCC), [1987] 2 S.C.R. 154 at 160–61. [76] If the Crown presents direct evidence on every essential element of the offence, then the accused is committed for trial, andconcomitantly there is no directed verdict. [5] In R. v. Christhurajah, 2017 BCSC 60 [Christhurajah], Justice Ehrcke summarized the further points to be taken from R. v.Arcuri, 2001 SCC 54 (at para. 10): That test was reaffirmed and further explained by the Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54 at para. 21. I take Arcuri toestablish the following further points: 1.

It is no part of the judge's task on a motion for a directed verdict to assess credibility or to draw inferences from the facts: Arcuri atpara. 1. 2. The test is the same whether the evidence is direct or circumstantial, but the nature of the judge's task varies according to the type ofevidence that the Crown has advanced: Arcuri at para. 22. 3. Where the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the motion fora directed verdict of acquittal must be dismissed: Arcuri at para. 22. 4.

Where the Crown has not advanced direct evidence on one or more elements of the offence, the judge must consider whether thoseelements may reasonably be inferred from the circumstantial evidence, and this requires the judge to engage in a limited weighing of theevidence: Arcuri at para. 23. 5. In the case of preliminary inquiry, this limited weighing includes a consideration of any defence evidence that has been led in orderto determine whether a reasonable jury properly instructed could return a verdict of guilty: Arcuri at para. 29. 6.

In performing the limited weighing, the judge does not draw inferences from facts, does not assess credibility, and does not evaluatethe inherent reliability of the evidence itself. Rather, the judge assesses the reasonableness of the inferences to be drawn from thecircumstantial evidence to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed juryto infer guilt: Arcuri at paras. 23 and 30. 7. On a motion for a directed verdict, the judge must assume that all credibility findings have been made in favour of the Crown.

Thejudge's role at this stage is not to decide whether he or she would convict or whether he or she would draw an inference of guilt from thecircumstantial evidence. Rather, the question is whether a reasonable jury properly instructed could draw an inference of guilt: Arcuri atparas. 21 and 30. [6] Justice Ehrcke added an eighth point arising from another Supreme Court of Canada decision, R. v. Sazant, 2004 SCC 77(Christhurajah at para. 11): 8.

Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered:Sazant, at para. 18. [7] This application first requires that I determine the essential elements of this offence as it is alleged in Count 2. Essential Elements of the Offence in Count 2 [8] A.I.M. is charged that: . . . on or about the 10th day of April, 2021, at or near Kamloops, in the Province of British Columbia, with intent to enable or assisthimself, to commit the indictable offence of sexual assault, did attempt to choke [the complainant], contrary to

Section 246(

a) of theCriminal Code. [9] The parties disagree about the essential elements of this offence. Positions of the Parties [10] The Crown submits the essential elements of this offence are as set out by Ehrcke J. in Russ, where the wording of the indictmentwas the same as the case at bar, with necessary modifications for the underlying offence. Justice Ehrcke considered the authorities andultimately concluded that the essential elements of Count 3 in Russ were: [11] Accordingly, I will instruct the jury that the essential elements of Count 3 in the present case are:

1. that the accused attempted to choke, suffocate, or strangle the complainant; 2. that the accused did so intentionally; and 3. that the accused did so with the intent of enabling or assisting himself to commit the indictable offence of unlawful confinementof the complainant. [11] Ms. Janse submits that I ought to adopt the reasoning in Russ and find these to be the elements of the offence here, again withnecessary modifications to reflect the slight differences in the indictments. She highlights that the charge in Russ was nearly identical tothe present case.

The only differences were that the indictable offence alleged was unlawful confinement rather than sexual assault and,in addition to attempt to choke, the Russ indictment included the words "suffocate or strangle". In short, the Crown submits that JusticeEhrcke's decision was considered and ought to be followed. [12] The defence submits that I should not follow Russ and ought to find the essential elements of the offence are as set out by JusticeManderscheid in R. v.

Soulami, 2013 ABQB 435 at para. 91 [Soulami]. [13] Based on the formulation in Soulami and the authorities that have subsequently referred to it, Mr. Tate contends that the elementsof the offence are as follows. The actus reus requires that the accused choked or attempted to choke the complainant; and the mens rearequires that:

a) at the time of the choking or attempted choking the accused intended to choke the complainant;

b) at the time the accused intended the choking or attempt to choke to make the complainant incapable of resistance; and

c) at the time the accused intended the condition induced by the choking to facilitate a sexual assault. [14] The defence also relies upon the three decisions relied upon by Manderscheid J. in Soulami, namely: R. v. J.(C.L.), 2010 ABQB90, aff’d 2011 ABCA 176 [J.(C.L.)]; Hill v. R., 2010 ONSC 5150 [Hill]; and R. v. Brierley, 2009 ONCJ 483 [Brierley]. The defence alsorelies upon two British Columbia decisions that refer to Soulami: R. v. Wright, 2016 BCSC 2073, aff’d 2019 BCCA 327 [Wright] and R.v. Razak, 2019 BCSC 815 [Razak].

Discussion [15] With small modifications that are immaterial to the analysis, it is uncontentious that the wording of the indictment in Russ is thesame as the indictment in the case at bar.

As such, and although the defence did not directly raise the principle of judicial comity, thedefence position on this application clearly requires me to consider that principle. [16] In Re Hansard Spruce Mills, (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.) [Spruce Mills], Justice Wilson, as hethen was, explained the duty of a trial judge to follow the decision of another judge of the same court, except in limited circumstances.The court wrote at 592, in part: … I think … the proper discretionary duty of a trial Judge, is more limited. … I have no power to overrule a brother Judge, I can onlydiffer from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference ofopinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legalweight.

This is a state of affairs which cannot develop in the Court of Appeal. Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge ofthis Court if: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; [or] (

c) the judgment was unconsidered, a … judgment given in circumstances familiar to all trial Judges, where the exigencies of the trialrequire an immediate decision without opportunity to fully consult authority. [17] Judges of this court have consistently applied the principle of judicial comity ever since. The principle is a guide for one trialjudge examining an issue which has already been considered and decided by another judge of the same court: John Carten Personal LawCorp. v.

B.C. (Attorney General), at para. 7 (B.C.S.C.). [18] The proper approach to applying Spruce Mills was recently discussed by the Supreme Court of Canada in R. v. Sullivan, 2022SCC 19 at paras. 75–79 [Sullivan]. To summarize, there are three categories through which a judge may depart from horizontal staredecisis. These are: 1. The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or 3.

The earlier decision was not fully considered, e.g. taken in exigent circumstances. [19] The Court described the category of per incuriam (Sullivan at para. 77): Second, a judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In otherwords, the decision was made per incuriam, or by inadvertence, a circumstance generally understood to be “rare” (see, e.g., The Owners,

Strata Plan BCS 4006 v. Jameson House Ventures Ltd. , 2017 BCSC 1988 , 4 B.C.L.R. (6th) 370, at para. 132 ). The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision.

It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Rowe and Katz, at p. 19). [ 20 ] For reasons that I will now develop, I am satisfied that Russ is a decision I should follow in determining the elements of the offence as charged by the Crown in this case. Justice Ehrcke sought submissions from counsel regarding the essential elements of s. 246 (

a) as charged in the indictment before him in order to instruct the jury in that case. Nearly identical to the case at bar, the count in Russ read: [1] …On Count 3, he is charged as follows: Richard Andrew Russ, on or about the 2nd day of January, 2012, at or near Vancouver, in the Province of British Columbia, with intent to enable or assist himself to commit the indictable offence of unlawful confinement, did attempt to choke, suffocate, or strangle M.G., contrary to s. 246 (

a) of the Criminal Code . [ 21 ] Counsel has identified no subsequent decision, appellate or otherwise, that may have affected or undermined the validity of Ehrcke J.’s rationale or conclusions in Russ . Counsel have not pointed to some binding authority or relevant statute the court did not consider, nor has counsel directly suggested Ehrcke J.’s findings and conclusions on the issue arose out of a lack of opportunity to fully consult authorities, occurred in the absence of submissions of the parties, or some other exigent circumstances.

In fact, I think the opposite is true. [ 22 ] Justice Ehrcke sought submissions of counsel and received them. He was referred to other authorities, including Soulami and Wright . I reject the suggestion that because the decision is brief, it was not fully considered. One can render a fully considered, yet concise, decision. There can be no reasonable suggestion that Russ was not a fully considered decision. [ 23 ] In all of these circumstances, the benefits of consistency, certainty, and comity, as explained in Spruce Mills and Sullivan , and the interests of justice in this case persuade me to follow Russ .

Moreover, I agree with the reasoning and conclusions in Russ , including Ehrcke J.’s reasoning in distinguishing Soulami : [4] At para. 91 of Soulami , the trial judge said this: [91] I therefore conclude that the elements of this offence may be restated as: 1. actus reus : the accused choked or attempted to choke the complainant, and 2. mens rea : at the time of the choking or attempted choking, the accused:

a) intended to choke the complainant, and

b) intended the choking to make the complainant incapable of resistance, and

c) intended the condition induced by the choking to facilitate a sexual assault. [5] Despite that case, I have come to the conclusion that the offence, as worded in the indictment in the present case, does not have, as an essential element, that the accused must have intended the choking to make the complainant incapable of resistance. [6] I am satisfied that the offence created by Parliament in s. 246(

a) may be committed in two different ways, only one of which has that as an essential element. [7] The offence under s. 246 is worded as follows in the Criminal Code : [246] Every one who, with intent to enable or assist himself or another person to commit an indictable offence, (

a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or (

b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing, is guilty of an indictable offence and liable to imprisonment for life. [8] We are concerned here only with s. 246 (a). Clause (

a) is disjunctive, creating two ways of committing that offence.

The first way is that the accused "with intent to enable or assist himself or another person to commit an indictable offence, attempts, by any means, to choke, suffocate or strangle another person." The second alternative way is that the accused "with intent to enable or assist himself or another person to commit an indictable offence, by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance." [9] That is, the phrase "attempts to render another person insensible, unconscious or incapable of resistance" only modifies what comes after the word "or" in s. 246 (a).

If one were to read the

section in a way that this clause also modified what comes before the word "or", the result would be ungrammatical. In that case, where the Crown was relying only on the first alternative, the charging

section would, in effect, read "with intent to enable or assist himself or another person to commit an indictable offence, attempts, by any means, to choke, suffocate or strangle, another person, attempts to render another person insensible, unconscious or incapable of resistance."

[10] I do not consider the previously-mentioned authorities to be binding on me, since the question of whether or not there is an essential element of attempting to render another person insensible, unconscious, or incapable of resistance depends on the wording of the indictment. That element applies if and only if the Crown is relying on the second of the two ways of committing the offence in s. 246 (a). It may well be that in the cases previously mentioned that was the case.

In the case before me, however, the Crown is relying only on the first way of committing the offence, as is clear from the wording of the indictment. [ 24 ] As the above makes clear, Ehrcke J. did not reject the reasoning in Soulami and Wright , but, rather, correctly observed that whether the additional element of this offence applies, specifically the element that is controversial here, depends on the wording of the indictment in a given case. Unfortunately, the court in Soulami did not set out the wording of the indictment that Mr.

Soulami faced, nor did the court in Soulami set out the wording of the charges faced by the other accused in the authorities upon which that court relied. [ 25 ] Given the submissions in the present case and specifically that the defence is urging me to follow Soulami and the other authorities, it is necessary for me to do a deeper dive into all of those authorities. Going through that exercise has only served to reinforce my agreement with the reasoning in Russ .

Doing so has shown me that these other authorities, the ones relied upon by the defence in this application, are distinguishable from the case at bar and do not undermine the reasoning in Russ . In some of these other decisions, the Crown was relying upon the essential element of attempting to render another person insensible, unconscious, or incapable of resistance, which is not the case here. In other decisions, the wording of the indictment is unclear from the decision. [ 26 ] J.(C.L.) is the decision relied upon primarily by the court in Soulami .

In J.(C.L.) , the court set out the elements of the offence at para. 51: 1. the accused choked T.W.; 2. the accused intentionally choked T.W. to enable or assist himself to commit sexual interference with and sexual assault causing bodily harm on T.W.; 3. T.W. did not consent to the accused choking her; and 4. the accused choked T.W. to render her incapable of resistance. [ 27 ] J.(C.L.) does not set out the specific wording of the indictment facing that accused.

The court summarized the indictment on two occasions during the course of the decision, but unfortunately the summaries are different and, therefore, unhelpful. At para. 2, Justice Yamauchi summarized the charge as "choking [the complainant] with the intent to enable him [referencing the accused] to commit the foregoing offences", sexual interference and sexual assault causing bodily harm.

However, at para. 52, in convicting the accused, Yamauchi J. wrote “This Court finds you guilty of … choking to overcome resistance while committing those offences …” In the end result, I am left unclear about how the Crown particularized that indictment. [ 28 ] The Court in Soulami did not consider the wording of the indictment in J.(C.L.) or its uncertainty, nor did it consider whether the wording was the same as that faced by Mr.

Soulami. [ 29 ] The Court in Soulami also relied upon two Ontario decisions Hill and Brierley , finding that those two decisions had “characterized the offence in a compatible manner” to J.(C.L.) : para. 93 . Respectfully, I disagree with that assessment. [ 30 ] Hill was a decision pertaining to the applicability of the Kienapple principle. The court had to determine the essential elements of all of the offences, but I do not find the conclusions in Hill compatible with J.(C.L.) . Justice Bryant in Hill began by setting out the specific wording of the counts on the indictment facing Mr. Hill at para. 2.

I note the wording of that indictment is similar to the case before me. The Court then discussed the elements of the offence ( Hill at para. 18 ):

Section 246(

a) has an ulterior mental element as it requires the accused to have the specific intent to commit an indictable offence, such as robbery or aggravated sexual assault.

The actus reus or the external element of the offence occurs when the accused attempts, by any of the above means, to choke the complainant. [ 31 ] The Court reiterated the elements again ( Hill at para. 27 ), writing: …The Crown must prove that the offender with the intent to enable or assist himself to commit an indictable offence, namely an aggravated sexual assault, did attempt to choke the complainant. [ 32 ] Importantly, Bryant J. did not find the additional essential element that the Court in J.(C.L.) had found—that the accused attempted to choke the complainant to render her incapable of resistance.

That Justice Bryant did not find the additional element is understandable, because the Crown in Hill chose, as did the Crown in Russ , and as did the Crown in the case before me, to rely on the first way of committing the offence under s. 246 (a). Therefore, the Crown was not required in Hill to prove the second way, as it was not alleged. This reinforces the critical importance of the wording of the indictment in a particular case to determine the elements the Crown must prove. [ 33 ] I also find that Brierley is not compatible with J.(C.L.) either. The Court in Brierley found that the elements of the s. 246 (

a) offence in that case were that, "[the accused] intended to commit an indictable offence while he rendered [the complainant] incapable of resistance by choking": para. 38. This is different than what the court in J.(C.L.) , the court in Hill , and the court in Soulami found. One can understand why it is different by looking at the wording of the indictment in Brierley , set out at para. 8 : Accordingly, the evidence adduced must be sufficient to satisfy the elements of the three offence alleged, namely: Count 1 - Common assault: That James Robert Brierley intentionally applied force to Michelle Loftus, without her consent or threatened by

an act or gesture, to apply force to her in a manner that caused her to believe, upon reasonable grounds, that he had the ability to effect this purpose.

Count 2 - Assault with a weapon: That James Robert Brierley committed an assault on Michelle Loftus in the manner described above in count 1 and in so doing, used a knife, being a weapon as defined in

section 2 of the Criminal Code . Count 3 - Overcoming resistance: That James Robert Brierley, with the intent to commit an indictable offence, attempted to render Michelle Loftus incapable of resistance by choking. [ 34 ] This demonstrates that the Crown in Brierley , unlike the Crown in Hill , unlike the Crown in Russ , and unlike the Crown in the case at bar, was relying upon the second way of committing the offence in s. 246 (a).

Once again, this highlights the importance of the wording of the indictment to determine the essential elements the Crown must prove in a given case. [ 35 ] I find a similar difficulty in relying on Wright . Wright is a decision of one of my colleagues, but it predates Russ . Although the Court in Wright relied upon Soulami for the elements of the offence, the decision in Wright does not set out the specific wording of the indictment. However, Justice Ball twice referred to the s. 246 (

a) count as "overcoming resistance to sexual assault by choking": Wright at paras. 2 and 54 . This suggests that the Crown relied on the second way of committing the offence, which is different than Russ, and different than our case. [ 36 ] This brings me to Razak , another decision of one of my colleagues. This decision postdates Russ . At first blush, Razak appears to be in conflict with Russ , but on closer analysis I do not believe it is. Even if it were in conflict, I note that Justice Fitzpatrick does not refer to Russ , from which I infer it was not brought to her attention. [ 37 ] In Razak , Fitzpatrick J. found the essential elements of the s. 246 (

a) offence on the indictment before her as follows (at para. 119): 1. that Mr. Razak choked or attempted to choke M.F.; 2. that he did so with the intent to render her incapable of resistance; and 3. that he did so with the intent that the choking would facilitate or enable his sexual assault and/or robbery of her. [ 38 ] Although the Court added the additional element, that is the element that was rejected in Russ , I do not consider the decisions to be in conflict. Again, what the Crown relies upon in any given case is important.

The Crown in Razak appears to have been alleging the additional element—that he did so with the intent to render her incapable of resistance. Again, this is an element not present in our case. Justice Fitzpatrick set out the wording of the indictment ( Razak at para. 2 ): that “he attempted to choke M.F., to enable the robbery and sexual assault of her”. However, the Crown in Razak also alleged that his choking of the complainant was intended to render her incapable of resistance, as para. 115 makes clear: The Crown does not allege here that Mr. Razak intended to render M.F. “insensible” or “unconscious”.

Rather, the Crown relies on the third alternative in s. 246 (a), being that his choking of her was intended to render her “incapable of resistance”. [ 39 ] It follows then that Fitzpatrick J. relied upon Soulami’s articulation of the elements of the offence ( Razak at paras. 116–117 ), where that additional element was included. She also relied upon another decision of one of my colleagues , R. v. Caron , 2015 BCSC 716 , rev’d on other grounds 2018 BCCA 212 [ Caron ], in her articulation of the essential elements ( Razak ): [118] In R. v.

Caron , 2015 BCSC 716 , rev’d on other grounds 2018 BCCA 212 , the Court rephrased the necessary elements of the offence: 85. The Crown must prove that the accused attempted to choke the Complainant with the intent to enable his sexual assault of her and with the intent to render her insensible, unconscious or incapable of resistance: R v. Hill , 2010 ONSC 5150 at para. 18 ; see also R. v. Miller , 1999 BCCA 234 . [119] In

summary, per Caron , the Crown must prove beyond a reasonable doubt that Mr. Razak choked or attempted to choke M.F. with the intent to render her incapable of resistance and with the intent that the choking would facilitate or enable his sexual assault and/or robbery of her. [ 40 ] If I am incorrect in my view that Russ and Razak are not in conflict, I would prefer the reasoning in Russ . First, it does not appear that Russ was brought to the attention of the Court in Razak . Second, unlike in Russ , there was no dispute in Razak about the essential elements, so the Court was not asked to consider the issue.

Finally, were it necessary to go this far, I would respectfully disagree with the Court's reliance on Caron . Having reviewed Caron , I first observe that the precise wording of the indictment was not set out in the decision. Second, and more importantly, the Court in Caron at para. 85 relies upon Hill at para. 18 and R. v. Miller , 1999 BCCA 234 [ Miller ] for its outline of the essential elements of this offence.

Having reviewed both Hill and Miller , I do not agree that those authorities support that finding. [ 41 ] All of which is to say that I find the authorities relied upon by the defence in this application to be distinguishable. They do not persuade me to decline to follow the considered decision of Ehrcke J. in Russ . On the basis of the wording of the indictment faced by A.I.M., it is clear the Crown has chosen to rely upon the first of the two alternatives of committing this offence under s. 246 (a).

It follows then that I find the elements of Count 2 in the present case are: 1. that A.I.M. attempted to choke [the complainant]; 2. that A.I.M. did so intentionally; and 3. that A.I.M. did so with the intent of enabling or assisting himself to commit the indictable offence of sexual assault of [the complainant].

[ 42 ] With that, I turn to consider whether there is evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty on Count 2. Is There Evidence Upon Which a Reasonable Jury, Properly Instructed, Could Return a Verdict of Guilty on Count 2? [ 43 ] The evidence pertaining to Count 2 comes from the complainant. [ 44 ] By way of overview, [the complainant] testified that on the night in question, she slept at the home of her cousin, [name omitted]. This was her first time in that home and her first meeting of [name omitted], who was a relative.

Before she went to bed, A.I.M. arrived at the home as well. A.I.M. and [the complainant], had never met before. [The complainant] went to go to sleep in one of the bedrooms in the home. [ 45 ] In examination-in-chief, [the complainant] testified that she woke up in the bed at about 2:30 a.m. thinking it was a dream. She said it took her a couple of minutes to realize that she was not in her own home in [location omitted] and that she was not with her fiancé.

When she realized that what was occurring was not a dream, she screamed, elbowed A.I.M. in the face, broke his glasses, and the other things that occurred, ending their encounter. When asked in direct examination what happened when she woke, [the complainant] testified that she woke up and A.I.M.'s “dick was inside of me." She said she did not consent to having sexual contact with A.I.M.. [ 46 ] Regarding the evidence in relation to Count 2, later in examination-in-chief, [the complainant] testified that she was lying on her side when she woke up.

When asked whether any other part of A.I.M.’s body was touching her body, she testified that she was a “very, very heavy sleeper”, so she assumed his body was right up against her. She said that A.I.M.'s hands were on her stomach when she woke up and then he had his hands around her neck at one point.

She was asked if this was before or after she started screaming, and she replied that it was as she was waking and coming to the realization that he was not her fiancé and this was not her bedroom. [ 47 ] Later in cross-examination, [the complainant] was taken to a portion of the statement she gave to Constable Canuel a short time after these events. Included among the questions and answers put to her were the following: A. O.K.

And he had his arm, his left arm wrapped around, underneath my, neck and, like underneath my pillow and his hands were around my neck, and his right arm would have been on my right side hip, or on my lower stomach, and uhm, I remember he took off his shirt, he had a chain on his neck. He, had these dumb dorky glasses that made me realize that, it wasn't him.

And then, I, ended up rolling over onto the left s-, onto my, left side and I, elbowed him as I was moving so I facing the wall, I elbowed him, and, kicked him with my left foot [etc.] … [ 48 ] [The complainant] was asked if she remembered being asked those questions by the officer and giving those answers, and she replied "yes". [ 49 ] Later in cross-examination, Mr. Tate asked [the complainant] when it was that A.I.M. had his hands on her neck. She testified that it was as she was waking up.

She was then asked what he was doing with his hands around her neck, and [the complainant] testified that she was not too sure. Mr. Tate then asked her, "Whatever happened with his hands around your neck? it didn't—your resistance to what happened was as a result of realizing who it was …" [The complainant] interrupted Mr.

Tate's question and testified, "He was holding me down to stop me from hitting him and hurting him." [ 50 ] The defence submits that there is no evidence or no reasonable inference that could be drawn from the evidence upon which a trier of fact, following the law, could return a verdict of guilty on Count 2.

The complainant's evidence that A.I.M.'s hands were around her neck at the time she woke is not reasonably capable of supporting the inferences the Crown will ask the jury to draw—that this was an attempt to choke and that this attempt to choke was for the purpose of assisting or enabling A.I.M. to commit the sexual assault. The defence argues that the complainant's evidence on this point was inconsistent. Even taken at its highest, the defence highlights that choking requires evidence of pressure and/or a restriction of breath, which is absent in this case.

The defence also argues that enabling or assisting A.I.M. to commit the sexual assault requires evidence of dominion or control over the complainant to further that purpose, which is also absent in this case. [ 51 ] The Crown submits the evidence could support a finding of guilt. A.I.M.'s hands were around the complainant's neck at the time she woke to find him in the act of sexually assaulting her by penetrating her with his penis while she slept.

Emphasizing that the Crown alleges an attempt to choke with the intention of enabling or assisting him to commit the sexual assault, the Crown argues that no evidence of pressure or restriction of breath is required. Rather, evidence is required that he did some act with the purpose of carrying out the intention of choking her as required.

Highlighting that his hands were around her neck, in the context of what was occurring at the time, the Crown argues this is sufficient. [ 52 ] Before deciding the ultimate issue, it is necessary for me to consider the meaning of the word "choke" and "attempt to choke" in s. 246 (a). Counsel made submissions on these points as well. Meaning of “Choke” and “Attempt to Choke” [ 53 ] First, as counsel observed, there is no definition of “choke” or “choking” in the Code , nor is there a definition of the phrase "attempt to choke" or "attempting to choke" in the Code .

Counsel have not provided any authorities where this word or phrase was considered in the context of s. 246(a), nor have I been able to locate any decisions in the time I have had since submissions Friday afternoon. [ 54 ] Any judicial

interpretation of legislation invariably begins with the court setting out the modern rule of statutory

interpretation.

The words of a statute must be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme ofthe Act, the objective of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1S.C.R. 27. [55] In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, the Court further held: [27] The preferred approach recognizes the important role that context must inevitably play when a court construes the written wordsof a statute: as Professor John Willis incisively noted in his seminal

article “Statute

Interpretation in a Nutshell” (1938), 16 Can. BarRev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision underconsideration is found in

an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and thescheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R.v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of

interpretation that presumes a harmony,coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, (SCC), [1993] 2 S.C.R. 1069, at p. 1079; Pointe-Claire (City) v. Quebec (Labour Court), (SCC), [1997] 1 S.C.R. 1015,at para. 61, per Lamer C.J.) [56] Further, s. 12 of the

Interpretation Act, R.S.B.C. 1996, c. 238, states:

Definitions and

interpretation provisions 12

Definitions or

interpretation provisions in an enactment, unless the contrary intention appears in the enactment, apply to the wholeenactment including the

section containing a definition or

interpretation provision. [57] In the absence of a statutory definition, the interpretive analysis typically begins with the dictionary definition of the word orphrase. Counsel have referred me to a few dictionary

definitions of the word “choke”; however, it is important to remember thatdictionary

definitions are not definitive, as the court can only determine the “true” meaning of a word or phrase when the court considersthe dictionary definition in the entire context of the legislative scheme: R. v. Skakun, 2014 BCCA 223 at para. 19. [58] Justice Donald put the point more forcefully in Mission City Holdings Ltd. v. Jim Pattison Industries Ltd., 2000 BCCA 302 atpara. 19: With respect, I reject the proposition that the

interpretation of the plain and ordinary meaning of a word is governed by dictionaries.Dictionaries can sometimes be helpful but they are not necessarily determinative nor are they always the best evidence. [59] The “ordinary sense” of a word or phrase is not necessarily its dictionary definition. Dictionaries vary. The

definitions containedwithin the various dictionaries typically list a range of potential meanings of a word or phrase in many possible contexts. Ruth Sullivanexplained in Sullivan on the Construction of Statutes, 6th ed (Markham, Ontario: LexisNexis, 2014) [Sullivan] that a difference existsbetween a “dictionary meaning” and “ordinary meaning” of a word. As she wrote, "[t]he former is the meaning that a word can bear inmany possible contexts, the latter is the meaning a word bears in the context of a particular sentence as pieced together by a particularreader”: Sullivan at 33. [60] Among the dictionary

definitions of “choking” is Merriam-Webster’s dictionary definition, "to check or block normal breathingof by compressing or obstructing the trachea or by adulterating available air." The Cambridge Online dictionary defines “choking” as "tostop breathing because something is blocking your throat." The Oxford dictionary defines “choking” as "to have severe difficultybreathing because of a constricted or obstructed throat or lack of air." [61] Although just one factor in the analysis, the use of the word “choke” elsewhere in the Code may help illuminate its intendedmeaning in s. 246(a).

From my search, the word appears in s. 267(c), a relatively new offence that separates the act of choking (orsuffocating or strangling) from the more generalized kinds of criminally assaultive behaviour, treating it with the increased seriousnessof assault with a weapon (s. 267(a)) and assault causing bodily harm (s. 267(b)). [62]

Section 267(

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

summary conviction who, in committing an assault, […] (

c) chokes, suffocates or strangles the complainant. [63] In R. v. Kalinics, 2022 QCCQ 720, a case involving the choking of an intimate partner, the Court discussed Parliament’sintention, noting the objective gravity of the offence of choking is quite high (at para. 57). At para. 67, the Court held that in introducingthe Bill that brought s. 267(

c) into force, it was noted on the record that the

section was intended to clarify that strangling, choking, orsuffocating another person would constitute a more serious form of assault like assault with a weapon or assault causing bodily harm,precisely because of the more immediate, serious, or potentially deadly consequences for the victim. [64] In R. v. Bear-Knight, 2021 SKQB 308, the Court considered the meaning of the words “chokes, suffocates, or strangles” in s.267(c). The Court held: [76] The offence in s. 267(

c) is relatively new. Essentially, it creates an offence equivalent to assault causing bodily harm. Theoffence is made out where the Crown proves, beyond a reasonable doubt, the essential elements of an assault, namely, the intentionalapplication of force without consent, but with the added essential element of choking, suffocating or strangling the person assaulted. Thequestion of consent only applies to the application of force. As in the case of assault causing bodily harm, where the accusedintentionally choked, suffocated or strangled a complainant, consent is irrelevant.

[77] As for the conduct that constitutes, choking, suffocating or strangling, the words must be construed in the context of theprovision in which they appear. In the context of an assault, I find they generally refer to conduct designed to prevent or seriously impaira person's ability to breath. In this sense, there is overlap between the concepts of "choking," "suffocating" and "strangling". Theyinclude actions designed to block or constrict a person's airway, such as by squeezing the neck or throat, or covering the nose and mouth. [65] In R. v.

C.M., 2022 ONCJ 505, Justice Richardson added: [96] … “Chokes”, “suffocates” or “strangles” are not defined in the Criminal Code. Generally speaking, these elements are made outwhere the Crown proves beyond a reasonable doubt that the accused took some action “designed to block or constrict a person’s airway,such as by squeezing the neck or throat, or covering the nose and mouth”.

To these elements, I would add the alternative that the offencecan also be proven where there is evidence beyond a reasonable doubt that the accused took some action which applies pressure to therespiratory system of the complainant such that her ability to breathe is interfered with in meaningful way. [Footnotes omitted.] [66] The word “choke” also appears in another relatively new provision of the Code, s. 272(1)(c.1), which provides: 272

(1) Every person commits an offence who, in committing a sexual assault, […] (c.1) chokes, suffocates or strangles the complainant; … [67] In the short time that I have had, with the jury waiting, I have been unable to locate any reported decisions that have consideredthe meaning of the word “chokes” in this subsection. [68] Parliament's intention or purpose in enacting s. 246(

a) was discussed in R. v. Lemmon, 2012 ABCA 103, in the context of asentence appeal. The Court held: [27] Parliament's recognition of the inherent dangerousness of rendering a person unconscious to facilitate the commission of anotheroffence is reflected by the maximum penalty prescribed for that offence: life imprisonment. Put in context, that is a significantly greatersentence than could have been imposed for the underlying offence in this case, the sexual assault, which carries a maximum penalty often years imprisonment.

In other words, what is usually seen as the "incidental" offence, carries a much greater penalty than the one itfacilitates. The only other related offences of personal violence subject to such a serious penalty are attempted murder and aggravatedsexual assault. [28] A moment's reflection will reveal the reason for that.

Rendering a person unconscious, whether by choking, strangulation orsuffocation, is an inherently dangerous act that is easily capable of causing death, or brain injury with devastating lifelong consequences.See R v Horvath (1982), (ON CA), 2 CCC (3d) 196 (Ont CA), R v Wallin, 2003 BCSC 809, and R v Muckle, (unreported. July 28, 2006, Alt. P.C.). The difference in the outcome, between unconsciousness, brain damage and death, may be only amatter of a few additional seconds of pressure. In the final analysis, this is

an act of cruel domination met by sheer horror and oftenaccompanied by serious physical and psychological harm. [29] In short, although this crime is typically employed as a means to achieve another, it is often the more serious and life-threatening.Accordingly, it would be wrong to treat the offence of choking, suffocation or strangulation, where the victim has been renderedunconscious, as merely a particular or detail of the underlying offence. To do so would fail to hold the offender responsible for what isoften the more serious offence, and in the process marginalize extremely dangerous conduct.

I do not mean to suggest that every act ofapplied force to a victim's throat will warrant a significant additional sentence. However, such a sentence is appropriate when the victimis rendered unconscious or suffers bodily harm. [69] It is clear that choking, suffocating, or strangulation do not mean the same thing. Parliament can be presumed to not includeredundant language in a provision. However, I do agree with the authorities I have canvassed that there can be some overlap in theconcepts. Considering all of the above, I am satisfied that “choking” in the context of s. 246(

a) means "any conduct designed to preventor seriously impair a person's ability to breathe by constricting or obstructing the throat”. [70] Of course, the Crown has not charged A.I.M. with choking. He is charged with attempting to choke, as s. 246(

a) contemplates.As Ehrcke J. observed in Russ, given the wording of the count, it would be possible to commit the offence in s. 246(a), charged as anattempt to choke, without actually committing an assault since the offence requires only an attempt to choke. Thus, it does not appearthat an assault is necessarily an included offence although, as he observes at para. 12, perhaps attempted assault might be. [71] There are various dictionary

definitions of the word “attempt”. Merriam-Webster defines it as "the act or an instance of trying todo or accomplish something"; Oxford's English dictionary defines it as "to make an effort to achieve or complete". While, as the Crownpoints out, not directly applicable, s. 24(1) of the Code is instructive here. It provides: Attempts 24

(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intentionis guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. [72] Also, Ms. Janse highlights many authorities that have discussed the meaning of “attempt” in the context of s. 24. I agree with theCrown's submission, having reviewed many of those authorities, that the proper

interpretation of the word “attempt” in s. 246(

a) is thatthe impugned act (in this case it would be choking), must go beyond mere preparation (R. v. Cline, (ON CA), [1956]O.R. 539 (C.A.)), but does not require that the carrying out of the act be possible or completed.

[73] As many courts have observed, there is no single bright line or criterion that is determinative of the distinction between “merepreparation” and “attempt”. The location of the act or acts in question on this continuum is a matter to be determined by the trier of facton a case-by-case basis. Justice Watt explained this in R. v. Root, 2008 ONCA 869 as follows: [94] In every case of an attempt to commit an offence, the mens rea of the substantive offence will be present and complete. In everyattempt, what is incomplete is the actus reus of the substantive offence.

But incompleteness of the actus reus of the substantive offencewill not bar a conviction of attempt, provided the actus reus is present in an incomplete, but more than preparatory way. Dynar at paras.73 and 74. [95] The actus reus may be but does not have to be a crime, tort or even a moral wrong. R. v. Cline, (ON CA),[1956] O.R. 539, at p. 550 (C.A.). [96] The authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction betweenmere preparation, on the one hand, and an attempt on the other.

We leave the determination of where on the continuum the conduct liesto the common sense judgment of trial judges. R. v. Deutsch, (SCC), [1986] 2 S.C.R. 2 at pp. 22-23. [97] The distinction between preparation and attempt is a qualitative one involving the relationship between the nature and quality ofthe act said to constitute the attempt and the nature of the substantive offence attempted in its complete form.

Deutsch at p. 23. [98] To determine on which side of the preparation/attempt divide an accused's conduct falls, a trial judge should consider the relativeproximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time,location and acts under the control of the accused yet to be accomplished. Deutsch at p. 23. [99] Relative proximity may give

an act, which might otherwise seem to be mere preparation, the quality of an attempt. Deutsch at p.26; R. v. Henderson, (SCC), [1948] S.C.R. 226 at p. 245. Further,

an act on its face

an act of commission does not loseits quality as the actus reus of an attempt simply because further acts are required, or because a significant period of time may elapsebefore the completion of the substantive offence. Henderson at p. 244; Deutsch at p. 26. [100] To constitute the actus reus of an attempt, the act of an accused need not be the last act before the completion of the substantiveoffence. To constitute the actus reus of an attempt,

an act must be sufficiently proximate to the intended crime to amount to more thanmere preparation to commit it. This requirement of proximity, expressed in the divide between preparation and attempt, has to do withthe sequence of events leading to the crime that an accused has in mind to commit. To be guilty of an attempt, an accused must haveprogressed a sufficient distance (beyond mere preparation) down the intended path. Williams, Criminal Law (The General Part), at p.625.

An act is proximate if it is the first of a series of similar or related acts intended to result cumulatively in a substantive crime. [74] Applying all of those principles, I am satisfied that an “attempt to choke” in s. 246(

a) requires that an accused took some stepbeyond mere preparation toward carrying out his intention of choking (choking meaning any conduct designed to prevent or seriouslyimpair a person's ability to breathe, by constricting or obstructing the throat of [the complainant]).

Decision [75] If the jury accepts [the complainant’s] evidence that she woke to find the accused sexually assaulting her from behind with hishands around her neck and his penis inside her, based on the limited weighing that is appropriate in this application, I am satisfied thatthe jury, if properly instructed, could reasonably infer that A.I.M. was attempting to choke [the complainant] and that they could alsoreasonably infer that this attempt to choke her was with the intent to enable or assist himself to commit the sexual assault. [76] The jury could find that his hands around her neck, while in the act of sexually assaulting her while she slept and was waking up,was a step toward carrying out his intention of choking her, a step beyond mere preparation.

I am satisfied they could also infer that hedid so with the intent to enable or assist himself to commit the sexual assault. [77] Although the jury may not accept the complainant's evidence as the defence argues, and although, even if they do accept it, thereare other reasonable inferences they may draw, this is not the test I am to apply. Those are matters for the jury. [78] I am satisfied this evidence is reasonably capable of supporting the inferences the Crown asks the jury to draw.

If the inferencessought by the Crown are drawn, a finding of guilt could reasonably follow. [79] As a result, I am satisfied that, properly instructed and acting reasonably, the jury could find A.I.M. guilty of Count 2 based onthe Crown's evidence, and I dismiss the application for a directed verdict of acquittal. “S.A. Donegan J.” DONEGAN J.