R. v. J.B. Date:, 2011 BCPC 508

Citation: R. v. J.B. Date: 20111003 2011 BCPC 0508 File No: 184567-2-KC Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.J.S.B. (J.B.) REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Counsel for the Crown: N. Gill Counsel for the Defendant: E. Bowman Place of Hearing: Surrey , B.C. Dates of Hearing: September 19, 20, 30, 2011 Date of Judgment: October 3, 2011

[1] At the conclusion of the lawyers’ submissions on September 30, 2011, I found J.B. not guilty of Count 1, assaulting B.T.; andnot guilty of Count 3, assaulting C.R.; but guilty of Count 2, assaulting B.W. There was insufficient court time to provide oral reasons formy decision that day, so the parties agreed with my suggestion that I sentence J.B. then and provide written reasons later. These are myreasons. [2] J.B. is charged with assaulting three people at a party on August 8, 2010. I can only convict J.B. of each assault if the evidenceproves beyond a reasonable doubt that he is guilty of that offence.

In R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 theSupreme Court of Canada explained the duties of a judge or juror in a criminal trial: I must acquit if I believe the evidence supporting adefence or if it leaves me with a reasonable doubt. It is only where I reject the evidence of a defence and am not left in doubt by it that Imust then consider whether the evidence I do accept satisfies me beyond a reasonable doubt of J.B.’s guilt. [3] The issues in the trial are as follows: 1.

Whether the evidence proves beyond a reasonable doubt that J.B. committed assault by applying force without her consent to hisgirlfriend, B.T.; 2. whether it proves beyond a reasonable doubt that he pushed B.W. and was not acting in defence of a person under his protection whenhe did so; 3. whether it proves beyond a reasonable doubt that he was not acting in self- defence when he punched B.W.; and 4. whether it proves beyond a reasonable doubt that he was not engaging in a consensual fight or acting in self-defence when he punchedC.R. [4] Six young people who were at the house party testified in the trial.

All had been drinking alcohol and were intoxicated tovarying degrees. Each observed some of the relevant events, but from different locations and with different perspectives. The eventsmoved rapidly and took place among a shifting group of people. The trial took place thirteen months after the events. Not surprisingly inthese circumstances, there were significant contradictions in the evidence. The reliability and credibility of the witnesses’ testimony istherefore a major issue. [5] When I assess reliability I consider reasons why a witness might be mistaken.

When I assess credibility I consider whether theyare telling the truth.

To make these assessments, I find it helpful to consider things such as: - the witnesses’ ability to observe and remember accurately, including their sobriety, their memory, their location, and what part of theevents they saw; - whether they changed their evidence or contradicted themselves while testifying; - whether they had made previous statements that contradicted their testimony; - whether their testimony was supported or contradicted by other evidence; and - whether they were objective and impartial or demonstrated bias. [6] I will deal with the issues in the order indicated above, explaining my assessment of the evidence relevant to each allegedassault. 1.

Whether the evidence proves beyond a reasonable doubt that J.B. committed assault by applying force without her consent tohis girlfriend, B.T. [7] B.W. and C.R. testified they saw J.B., whom they didn’t know, assaulting B.T. by squeezing her head with his hands, pullingher off a table and throwing or pushing her down so she hit her head on the floor. B.T. and J.B. denied that he assaulted her. K.D., thehostess of the party, said she saw J.B. and B.T. hugging and kissing that evening. H.F. saw no assault.

[8] The assaults described by B.W. and C.R. were unusual enough to make it seem unlikely that they could be fabricating ormistaken. Their descriptions contained details like the sound of B.T.’s head hitting a hardwood floor that gave their evidence the ring oftruth. Crown counsel also pointed to a number of weaknesses in the evidence of B.T. and J.B. However, given all the discrepancies in theevidence and the corroboration of J.B.’s denial by B.T., I am not able to completely reject J.B.’s testimony that he did not assault her.

Iam therefore not able to find that the evidence proves beyond a reasonable doubt that J.B. assaulted B.T. [9] Accordingly, I dismiss Count 1. 2. Whether the evidence proves beyond a reasonable doubt that J.B. pushed B.W. and was not acting in defence of a personunder his protection when he did so. [10] H.F. testified that she didn’t see the fight.

K.D. testified that J.B. punched B.W. without provocation; B.W. then lunged towardsJ.B.; C.R. grabbed B.W. to break up the fight; there was then a big commotion in which J.B. put himself in C.R.’s face. [11] C.R. testified that right after J.B. pushed B.T. in the living room, J.B. walked to the kitchen and punched B.W.; C.R. yelled“stop”; B.W. turned away, covering his face; J.B. took a step towards B.W.; C.R. thought J.B. was going to hit B.W. again so he punchedJ.B., who punched him back; they were pulled apart. [12] B.W. testified that some time after J.B. pushed B.T. down, B.W. was talking to her in the kitchen.

J.B. came up and pushedB.W. back, using two hands on his chest and causing him to move back a couple of feet. Then J.B. punched him in the face. He said C.R.stepped in and he and J.B. exchanged punches. After they were separated J.B. ripped his shirt off and wanted to fight B.W. [13] J.B. testified he thought B.W. was making B.T. uncomfortable, so he moved B.W. away from B.T. using one hand; theyexchanged words; C.R. came up and grabbed J.B.’s shirt, ripping it, and punched him in the throat; J.B. then punched C.R. and B.W.,who were surrounding him, two on one.

He said he punched B.W. because both men were coming at him, surrounding him; he wasconfined in a narrow area of the kitchen and thought he was going to be beaten up. [14] B.T. testified B.W. was whispering in her ear, with an arm partly around her, when J.B. approached and pushed B.W. awayfrom her, using two hands. Then C.R. came and punched J.B.; J.B. punched him back and then punched B.W. [15] Although C.R. did not mention a push, and J.B. described it as a one-handed sideways motion, B.W. and B.T. described thesame two-handed push.

Since B.T. demonstrated loyalty to J.B. during her testimony, I give significant weight to her evidence supportingB.W.’s testimony on this issue. Moreover, J.B. at one point began to say he pushed B.W. and then corrected himself and substituted amore neutral term. I therefore reject J.B.’s testimony about the way he pushed B.W. I find the evidence proves beyond a reasonabledoubt that J.B. pushed B.W. using two hands against his chest and moving him back a couple of feet. This constitutes assault. [16] However, defence counsel, Ms.

Bowman, argues that s. 37 of the Criminal Code justifies B.W. in using the force necessary toprotect B.T., a person under his protection, from an assault. Before s. 37 can apply there must either be evidence of an assault orthreatened assault of B.T. by B.W., or evidence that J.B. had an honest but mistaken belief that an assault had occurred or wasthreatened, based on reasonable grounds (R. v. Grandin, 2001 BCCA 340 , [2001] B.C.J. No. 973 (BCCA). [17] Although J.B. said that B.W. had his hand beside her and “was putting his tongue down her ear,” B.W. testified that he wasleaning over to speak to B.T.

She said B.W. whispered in her ear and she felt uncomfortable but chose to stay and talk to him for 8minutes. She said his arm was partly around her but she didn’t move or tell him to get away. I conclude from all the evidence that B.W.did not assault B.T. in any way. Nor did J.B. believe B.W. was assaulting B.T. J.B. was jealous. He admitted he felt they weredisrespecting him by their conduct.

After weighing all the evidence I have no doubt at all that J.B. was angry and jealous when hethought B.W. was taking liberties with his girlfriend, and he pushed him away from her in jealous anger, thereby committing assault. 3. Whether the evidence proves beyond a reasonable doubt that J.B. was not acting in self-defence when he punched B.W. [18] J.B. may well have followed the push with a punch, but the evidence does not prove this beyond a reasonable doubt. Theevidence about whether J.B. punched B.W. before or after he was punched by C.R. is so contradictory that I am unable to determinewhich is accurate.

Moreover, if he punched B.W. after C.R. punched him, there is some evidence raising a doubt about whether he actedin self-defence, using no more force than necessary to defend himself. [19] I note Crown Counsel’s able submissions that his subsequent challenging of B.W. and C.R. to fight seems inconsistent with hishaving had a reasonable apprehension of grievous bodily harm from them, a necessary element of self-defence. On the other hand, thechallenge came after the combatants were separated, and I accept J.B.’s testimony that he would have intended fighting one at a timerather than two on one.

I conclude that the evidence about the circumstances in which J.B. punched B.W. are simply not clear enough toprove beyond a reasonable doubt that this constitutes an assault. [20] To summarize, the evidence does not establish that J.B. was not acting in self-defence when he punched B.W. However, theevidence does prove beyond a reasonable doubt that he assaulted B.W. by pushing him and that he was not acting in defence of a personunder his protection within the meaning of s. 37 when he did so. Accordingly I find him guilty of Count 2. 3.

Whether the evidence proves beyond a reasonable doubt that J.B. was not engaging in a consensual fight or acting in self-defence when he punched C.R.

[ 21 ] The Crown concedes, and I agree, that the evidence does not prove beyond a reasonable doubt that J.B. was not acting in self- defence or engaging in a consensual fight when he punched C.R. I therefore dismiss Count 3. A.E. Rounthwaite Provincial Court Judge