R. v. Pabla Date:, 2013 BCPC 384

Citation: R. v. Pabla Date: 20130829 2013 BCPC 0384 File No: 194378-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HARINDER PAUL SINGH PABLA ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Crown: A. Jantunen Counsel for the Defendant: J. Winteringham, Q.C. Place of Hearing: Surrey , B.C. Dates of Hearing: July 16, 17, August 28, 2013

Date of Judgment: August 29, 2013 [1] THE COURT: We adjourned yesterday after approximately three-quarters of a day of argument. I am indebted both to Ms.Winteringham, Q.C. and Mr. Jantunen for their careful attention to the issues and their narrowing of the issues for me to deliberate andarrive at the conclusions to which I have come overnight. I - INTRODUCTION [2] These are oral reasons for decision rendered the next day for interests of timeliness and so that this matter can be concluded,given that it arose on New Year's Eve, December the 31st, 2011 in Langley, in the Province of British Columbia.

My reasons follow anoutline with a number of headings. There are eight Roman numeral headings commencing with I: Introduction, II: Matters Not in Issue -Material Elements, III: Issues, IV: The Law. I have broken the law not only into five headings A, B, C, D and E, but I have attempted todeal with the submissions of counsel in that portion of the reasons. V is Testimony and Exhibits, making reference to the testimony ofthe witnesses on July the 16th and 17th, 2013 as well as the exhibits presented to court.

Heading VI is Discussion and Analysis duringwhich I will attempt to deal with the points of testimony and my findings with respect to credibility, as well as the applicable law dealingwith assault. I am going to follow what counsel have suggested and deal as well with March the 11th, 2013 on an analytical basis only. For the reasons provided by the Honourable Madam Justice Fisher, I am of the view that this

section has no retrospective application. Then I will deal with VII: The Facts, and finally VIII: The Conclusion. II - MATTERS NOT IN ISSUE – MATERIAL ELEMENTS [3] This is a case where the oft-talked about societal concern for the current losses of civility and courtesy are highlighted. Theevents leading to this charge commenced with a person taking a spot in a parking lot when another was waiting. Then, when the personwho had been waiting confronted the taker, the discourse rapidly fell into the depths of vulgarity.

Both parties, on my findings, usedlanguage which provoked the prolongation of the argument and culminated in assaults from both parties. The issue at this trial may bedistilled and stated as whether the intentional infliction of force by Cst. Pabla is justified having regard to the force used against him, orwas an accidental blow in a circumstance where he was attempting to block the purse being swung at him by the complainant, Ms. Olive. [4] The theories of the Crown and the defence are significantly different. The Crown theory is that Cst. Pabla punched Ms. Olivedue to his anger.

Given the size difference, the force which he used in the theory of the Crown was more than reasonably necessary toblock the purse or stop Ms. Olive from swinging the purse at him and he is, in the submission of the Crown, therefore guilty of assault. The defence, in a lengthy written submission, presented two alternate theories. The first was that Cst. Pabla was using a sweeping,blocking motion with his right arm and hand when he observed the purse being swung at him from his right; that when he moved hisarm to block the purse of Ms.

Olive he did not intentionally strike her shoulder or her cheek, but the follow through of the blockingmotion caused him to hit her shoulder, bounce up off her shoulder and strike her in the left cheek. Moreover, from the testimony of thewitnesses, Ms. Winteringham submitted that his actions must be looked at in the light of s. 34(1) and s. 37 of the Criminal Code. [5] Given the evidence of the independent witness, Mr. Eldon Kerekanich, there is no question that s. 37 is a live legal issue,depending upon what the finding is with respect to whether the words uttered constituted provocation.

When I say "the words uttered" Iam talking about the words uttered by Cst. Pabla constituted provocation. It may well be that s. 34 does not provide him with a defence,given that he would have been found to have provoked the assault on him so his repelling the force would fall to the broader provision ofs. 37 of the Criminal Code. It should be noted that both accident and self-defence are live issues on the testimony of the witnessesbefore me. III - ISSUES

(1) Was the blow from Cst. Pabla to Ms. Olive's cheek an accident?

(2) If it was not an accident, has the Crown demonstrated beyond a reasonable doubt by the whole of the evidence that his armmovement in the context of the whole of this case was unreasonable such that the one blow is not justified by either s. 34(1), s. 37 or thenew provisions s. 34(2)(

a) through (h)? IV - THE APPLICABLE LAW - CREDIBILITY [6] In order to correctly charge myself on the law, the following principles direct my analysis and assessment of the testimony ofthe witnesses who appeared before me. The first is that the issue of credibility is one of fact and cannot be determined by following a setof rules or slavishly following some doctrine laid out by previous authority. That authority is provided in White v. The King, (SCC), [1947] S.C.R. 268 at 272.

I also instruct myself that as the trier of fact I must consider not only the witnesses' desire tobe truthful, but also opportunities of knowledge, powers of observation, judgment and memory. Therefore, each witness' capacity toremember, the accuracy in statement, the care in answering, the sincerity in manner, the frankness in attitude and any evidence of motive,bias or evasive responses must all be taken into account in assessing the witness in the witness box. Those foregoing points areguidelines for me. [7] As to the overall law, there is no question but that the law is as outlined by Ms.

Winteringham in her written argument. If Ibelieve Cst. Pabla I must acquit him. Even if I do not believe Cst. Pabla but am left in a reasonable doubt by his evidence, I must acquithim. If the accused's evidence is not believed by me and is rejected by me and does not raise a reasonable doubt, I must look to thewhole of the evidence to determine whether the Crown has proven the material elements beyond a reasonable doubt. In R. v. H. (C.W.), (BC CA), [1991] 68 C.C.C. (3d) 146 at page 155 in the British Columbia Court of Appeal Mr.

Justice Wood (as hethen was), now the Honourable Judge Wood of the Provincial Court of British Columbia sitting in Duncan, recommended a gloss toW.D. It is an important gloss and I pause to note that it is from our Court of Appeal and I am bound by it. He said:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [8] Having regard to those statements it is important that I look at the witnesses' testimony not by pitting one version againstanother but by looking at the whole of the evidence in the case. For instance, in R. v.

MacKenzie, (SCC), [1993] 18C.R. (4th) 133 at paragraphs 38 and 62, the Supreme Court of Canada dealt with the issue of comparing and choosing between witnessesto determine who was more believable, persuasive or credible. Chief Justice Lamer said that the version most favourable to the accusedis entitled to the benefit of the doubt. Mr. Justice LaForest (as he then was), at paragraph 38, articulated the proposition that the twoversions of opposing witnesses cannot be simply pitted against one another in isolation, rather all the other evidence must also beconsidered.

It is trite to say that as a general framework the court should look to the differences between testimony and the differencesbetween witnesses. We look at veracity on the one hand, truthfulness, and we look at accuracy on the other. We also look to reliability.

Evidence until it is shaken is entitled to weight and all witnesses are credible until there are reasons in the trial to not believe them or toreject their evidence or to find that they are mistaken or to find that they do not remember it correctly and that they have filled in holes orreconstructed their evidence due to the effluxion of time and other influences. [9] One of the main issues that arises in this trial is credibility. That is because of the way in which the trial unfolded, Ms. Olivetestifying for the Crown, a number of other civilian witnesses also testifying for the Crown, Cst.

Pabla testifying on his own, forhimself. The task of assessing the testimony and finding the facts therefore involves the weighing of evidence, but as I have already saidis not an exercise in preferring the evidence of one witness over that of another. The doctrine of reasonable doubt applies to the issue ofcredibility as it does to every other issue in a criminal trial. We must all remember that triers of fact, whether judges or members of ajury, are not able to look into witnesses' minds to see whether the witness is speaking the truth.

We must instead attempt to utilizefactors and determinations and assessments and analysis that provide us with a means of assessing the believability of a particularwitness. [10] I have come to utilize a number of factors in my assessment of witnesses' testimony in trials. I look first to the attitude anddemeanour of the witness. Is the witness evasive, belligerent, inappropriate response? Does the witness spar? Does the witness refuseto answer questions? I look to the existence of prior inconsistent statements or previous occasions in which the witness was untruthful.

That is particularly significant when a witness has testified to one thing in the witness stand and had made a prior inconsistent statementin either interview or transcript or a written statement such that they are placed in a position of saying one thing on one occasion andanother thing on another occasion. I look to the external consistency of the evidence. Is the testimony of the witness consistent withindependent evidence which is accepted? How does that witness' evidence fit with the other evidence in the case? What is its harmonyor lack of harmony in the light of accepted independent evidence?

We have some independent evidence in this case from Mr.Kerekanich and Mr. Miller. I then look to the internal consistency of the testimony. Does the witness' evidence change while on thestand? Are there self-contradictions apparent in the testimony of the witness? Is there evidence which conflicts with the presenttestimony? Motive to lie or mislead the court, bias, prejudice, advantage are all factors to consider, as well as evidence of stakes ormotives or interest, hostility, pecuniary interests or some other factor.

These aspects affect every accused in an obvious way, so I give itlittle weight in assessing the accused's testimony, but I look at it carefully in assessing other witnesses in a criminal trial. [11] Next, probably the most significant aspect and that is the ability of the witness to originally observe, to record in memory and torecall the event.

Each witness' testimony should be assessed having regard to its veracity, the objectivity and accuracy, what was thequality of the observation, what was the duration of the observation, was there a significant attentiveness, was there something about theevent which made it easy to remember, did the witness make contemporaneous notes, did the witness make a contemporaneousstatement, does the witness have an ability to recall collateral details or is there a significant time lag before a statement is given. Arethere other influences, such as leading questions or being led through one's evidence?

Is there evidence of reconstruction, self-contradiction? Next, what was the mental condition of the witness at the time of the observation? What was the state of sobriety? Wasthe person highly emotionally upset, was the person angry, was the person sad, was the person depressed, was the person happy. Whatwas the mental condition of the witness at the time of the observation at the time that the memory is stored, and has the witness anability to articulate and recall the evidence in a forthright manner? [12] Next I look at the sense of the evidence.

Does common sense suggest the testimony is impossible, improbable, unlikely? Whatelse results when we apply common sense to the evidence? Now, there is a danger in trying to use "common" sense. In whose eye is thenormalcy? What is common? You end up doing something akin to looking at the whole of the evidence and looking at a level ofnormalcy from all of the witnesses who are assessing the circumstances of the instant case. Some of these factors, or even just one ofthem may lead to a decision that part or all of a witness' testimony is not reliable.

The same principles apply to an accused's testimonyand whether parts of the testimony should be rejected. [13] Overarching all of that I must consider the presumption of innocence. This presumption, enshrined in s. 11(

b) of the Charterprovides that an accused cannot be convicted unless each essential element of the offence has been proven beyond a reasonable doubt. These factors, the onus on the Crown and the ultimate burden of proof beyond a reasonable doubt, will be kept in my mind as I turn to aconsideration of the evidence in this case. [14] I will deal next with the law as it relates to assault. The law as it relates to assault is set out in s. 265 of the Criminal Code andthere are two aspects of 265 which have some application here. The reason I say there are two aspects of 265 is because of thesubmission of Mr.

Jantunen. I say that because while Mr. Jantunen's single theory with respect to this matter is that Cst. Pablacommitted an assault when without the consent of Ms. Olive he applied force intentionally to Ms. Olive directly or indirectly, as is setout in s. 265(1)(a), that that is one of the means by which the offence can be committed. The other is 265(1)(b). [15] Now, neither counsel addressed me on this point, but when I reviewed it last night and I reviewed Mr. Jantunen's submissions tome yesterday, it seemed to me that I had to deal with this in terms of Ms. Olive's testimony. The following by Cst. Pabla of Ms.

Olivedown the lane of travel between the parking stalls towards Willowbrook Mall's entrance at the northeast side of Willowbrook Mall, the

door entrances going to the southwest. That is, that if a person attempts or threatens by

an act or a gesture to apply force to anotherperson, or causes that other person to believe upon reasonable grounds that he has present ability to effect his purpose, then that may beanother way of committing the offence of assault. I pause to note that while I considered it, I rejected it very quickly on the whole of theevidence before me because there is nothing in the evidence that shows that Cst. Pabla in any way intended to strike Ms. Olive at anystage until we are at the penultimate moment, which then led to the intervention of Mr. Kerekanich.

I say that because he had beenkicked, he had had a purse swung at him, he had been sworn at; she had approached him and he had not retaliated nor had he initiatedphysical contact. [16] The justification provisions of the Criminal Code have recently changed. One of the previous provisions is s. 34(1). It wasaddressed at some length in the closing submissions of Ms. Winteringham. I am of the view, having regard to the whole of the evidencebefore me, that the provision of s. 34(1) and the proportionality of s. 34(1) in this case is subsumed by my finding of fact that Cst. Pablauttered words which provoked Ms.

Olive when they had exchanged their first angry words. I am therefore of the view that s. 34(1) hasno measure of realism or air of reality for his defence and is specifically precluded by the language of 34(1) as it was prior to March the11th of 2013. [17]

Section 37 as it was does have application, and s. 37 brings in a measure of proportionality. I am not going to read those twoprovisions, in the interest of time, but I am going to take the view that s. 37 applies in this context. With respect to s. 37 we are heredealing with Cst. Pabla being a person who is faced with a purse being swung at him along with the words being uttered by Ms. Olive inan angry tone as is described by Mr. Kerekanich.

His reaction at that time must be assessed having regards to its reasonableness giventhe whole of the circumstances and particularly his subjective and objective beliefs, as well as whether those beliefs are reasonable in thecontext of the whole of the case. [18] I turn next to the issue of the applicability of the new provisions. The casebook provided by Ms. Winteringham was, shall I say,lengthy reading last night. I was struck, particularly struck by the clear and concise reasons of the Honourable Madam Justice Fisher inR. v. Evans.

In Evans Madam Justice Fisher had regard to the applicability of either s. 34(1) of the previous Criminal Code or aconsideration of ss. 34 and 35 of the new provisions from the Citizen's Arrest and Self-Defence Act, S.C., c. 9 which repealed subsections34 to 42 of the Criminal Code. In the context of the facts here and in the context of Mr. Jantunen's forceful submission that Cst. Pablahad a duty to retreat, the analysis of Madam Justice Fisher at paragraph 25 of the decision, in conjunction with paragraphs 4 and 5, isparticularly instructive.

The reason for that is that if one looks at the law prior to these amendments, there was no duty to retreat. Theconcept of duty to retreat is addressed very clearly in the Alberta Court of Appeal in R. v. Deegan, [1979] 49 C.C.C. (2d) 420. It is adecision of Justice Harradence concurred in by Justice Laycraft in the Alberta Court of Appeal, which dealt with the way in which theaccused's beliefs of imminent danger of assault were to be assessed.

His Lordship at pages 420 and 421 and then at 440 said thefollowing: In regard to the accused's belief, Martin J.A. in R. v Baxter (1975), (ON CA), 27 C.C.C. (2d) 96 at pages 108 and 109,33 C.R.N.S. 22. . . at p. 36 [stated]: "The accused's subjective belief that he was in imminent danger of death or grievous bodily harm that this action was necessary in self-defence was, however, required to be based upon reasonable grounds. In deciding whether the accused's belief was based uponreasonable grounds the jury would, of necessity, draw comparison with what a reasonable person. . .

And I would highlight this. . . .in the accused's situation might believe with respect to the extent and the imminence of the danger by which he was threatened, andthe force necessary to defend himself against the apprehended danger." It continued at the top of page 421: "An accused's belief that he was in imminent danger from an attack may be reasonable, although he may be mistaken in his belief.

Moreover, in deciding whether the force used by an accused was necessary in self-defence under both 34(1) and (2), the jury must bearin mind that a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exactmeasure of necessary defensive action." [19] Justice Harradence continued: In this regard Lord Morris stated in Palmer v. The Queen, [1970] 55 Cr. App.

R. 223 at 242, a decision of the Privy Council on appealfrom the Court of Appeal of Jamaica: "If there has been an attack so that defence is reasonably necessary, it will be recognized that a person defending himself cannot weigh toa nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked

had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only defensive actionhad been taken." [20] Justice Harradence said: "With that statement I agree." He then went on, at page 440, to make reference to the stand one'sground authorities from the Supreme Court of Canada and a decision of Chief Justice Dickson in R. v. Howe from 1958 about theconcept of retreat.

The question is not whether or not one has to retreat under the law prior to March 11th, but whether or not the actiontaken was reasonable, having regard to the views of the person undertaking the action. [21] I am therefore of the view that the provisions prior to March the 11th, 2013 are the only provisions applicable to this case. However, I am of the view that the assessment factors contained within the new provisions may be of assistance to the analysis while nothaving the force of law.

I say that for the very reason stated by Madam Justice Fisher in paragraph 25 as it relates to retreating ratherthan standing one's ground, as she set out in R. v. Evans at paragraph 25. I take it from those decisions that s. 37 and the new provisionsof s. 34(2) will be utilized by me in an assessment of the evidence after my findings. [22] On the issue of assault I have also considered R. v. Barrett, particularly paragraphs 41 and 42. I say that because Barrett, whichis 2012 B.C.J. No. 1138 at those paragraphs deals with the onus on the Crown and the onus on Cst. Pabla.

I am bearing in mind as aresult of that appellate decision in the British Columbia Court of Appeal that I must consider whether Cst. Pabla had a reasonable belief,subjectively and objectively, that each element of self-defence existed, or more correctly in terms of the assessment and the onus ofproof, whether the Crown has disproved such a reasonable belief in Cst. Pabla beyond a reasonable doubt. It is not for Cst. Pabla to haveto prove anything.

One of the main issues here is making sure that I do not slip into the legal error of placing on him an evidential onusor the onus of raising a reasonable doubt. [23] For ease of reference I am going to turn next to Grandin and I am going to say that I have considered Mr. Justice Finch'sdecision in Grandin, particularly paragraph 25, paragraphs 33 and 34, 37, 44 and 45. I have utilized them as instructive for my analyticalpurposes, particularly looking at the fact that s. 37 is broader than s. 34(1). I have looked as well at R. v. I.A.O.S., 2013 BCPC 166, [2013] B.C.J.

No. 1418, a decision of the Honourable Judge Brooks in Victoria, and I have considered his paragraphs 36, 39and 40 as instructive. On the issue of credibility and the need to give reasons I have considered R. v. Sandhu, [2012] B.C.J. No. 2575,particularly paragraphs 33, 34 and 35. On the issue of the combined operation of the old provisions and the new provisions, I haveconsidered the analysis of the Honourable Judge Dhillon in R. v. Urquhart, 2013 BCPC 184 , [2013] B.C.J. No. 1569,particularly paragraphs 57 to 67 and paragraphs 68 and 69.

I found 68 and 69 particularly instructive. [24] I will turn next to the justification provisions, and in particular with respect to the justification provisions a quick reference to 34as it currently is worded. 34(1) as at March the 11th of 2013, and I am not going to read it all out, I would just simply say that for thepurpose of my reasons they could be taken as read, that all three, (a), (

b) and (

c) are being considered by me. I am also taking the viewwith respect to the matter that under the current s. 34(2) that these factors are significant: (

a) The nature of the force or threat. What was the nature of the blow? What was the manner of the blow? What was the movementthat gave rise to the blow or the force being utilized? Was it being done in conjunction with force from another or was it simply a pre-emptive strike? (

b) The extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce. 34(2)(

b) is the

section which will lead to much debate about the need to retreat or stand one's ground or otherwise move away incircumstances involving people squaring off verbally and subsequently engaging in physical violence. So we have to look at the way inwhich each of those persons was interacting and was there time to make another response. (

c) The person's role in the incident. (

d) Whether any party to the incident used or threatened to use a weapon. The only person that used a weapon was Ms. Olive. (

e) The size, age, gender and physical capabilities of the parties to the incident. We are dealing here with a 48-year-old Indo-Canadianman with significant medical deficits, and we are dealing with a young female person who is significantly smaller than him, him being atthe time of this event six-one and 180, and her being in the range of five-six, and one never wants to try and guess a person's weight ifwe are dealing with a female witness, despite counsel asking the question in the courtroom. [25] We have to look at (

f) the nature, duration and history of any relationship between the parties, including any prior use or threatof force and the nature of that force or threat. By the time we are dealing with the penultimate event here we have already had severalconfrontations between these two individuals, so there has been over the course of approximately two minutes of time, give or take 30seconds, quite a lot of discourse. [26] We then look at (f.1) any history of interaction or communication between the parties. We have no history here. It is one singleset of events on New Year's Eve 2011.

[27] And then we look at (

g) the nature and proportionality of the person's response to the use of force; and then we look at (h)whether the act committed was in response to a use of force that the person knew was lawful. [28] Because of Mr. Jantunen's submissions I have also spent some time looking at the law as it relates to circumstantial evidence. Iam of the view that I must charge myself as a matter of law that if I am to utilize these circumstantial inferences that he submits that Ishould in relation to the case at bar. I must have regard to R. v.

Charemski, (SCC), [1998] 1 S.C.R. 679 at paragraph13 which states that there must be "no other rational explanation for the circumstantial evidence but that the defendant committed thecrime." Now, that is a reformulation of the earlier statement in R. v. Cooper, (SCC), [1978] 34 C.C.C. (2d) 18 (S.C.C.)which is a restatement of the rule in Hodge's Case, which is really old.

In Cooper the Supreme Court of Canada said: . . .before basing a verdict of guilty on circumstantial evidence [the trier of fact] must be satisfied beyond a reasonable doubt that the guiltof the accused is the only reasonable inference to be drawn from the proven facts. The trier of fact would have to look at the proven facts and then determine whether given the proven facts, the guilt of the accused is theonly reasonable inference to be drawn. [29] To the assessment of those tests the court is to bring what Mr. Justice Hall described in R. v. Bauer, 2003 BCCA 138 ,[2003] B.C.J.

No. 505 at paragraph 21 as "a measure of realism" and to bear in mind that the criminal law does not demand proof to thelevel of certainty. Justice Hall referred to the earlier decision of the former Chief Justice, Chief Justice McEachern in R. v. To, (BC CA), [1992] 16 B.C.A.C. 223 where Justice McEachern said, and I quote: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. [30] The test, in my view, that is to be applied in considering the inferences sought by Mr. Jantunen is whether given the directevidence of Ms. Olive, Mr. Kerekanich, Mr. Miller, Ms. McNair and Cst. Pabla, the Crown has disproved beyond a reasonable doubt theassertions of Cst. Pabla that he struck out in self-defence and either (1) accidentally struck or (2) struck once Ms. Olive.

In addition, in acircumstantial assessment the Crown must prove beyond a reasonable doubt that the force used was excessive in the circumstances suchthat it was not reasonable. The question therefore might be framed as whether the Crown has established that the only reasonableinference is that the force used by Cst. Pabla was excessive having regard to the force being used by Ms. Olive or the force previouslyused by Ms. Olive in their interaction in the parking lot. [31] I am also mindful of something that Mr. Jantunen very carefully submitted.

I do not want to leave it out because it was part ofhis argument, and that is something which flows from the decision in the British Columbia Court of Appeal in R. v. Collin, a decision ofOctober the 23rd, 2008 by Justice Tysoe. At paragraphs 16, 17 and 18 His Lordship has drawn to the attention of trial judges that theyare not to call upon the Crown to establish circumstantial evidence beyond a reasonable doubt before looking at the whole of theevidence and determining whether or not the whole of the evidence proves the case beyond a reasonable doubt.

He said at paragraph 16the following: The error of law alleged to have been made by the trial judge is that he placed too much weight on the facts found by the judge to havebeen proven on a balance of probabilities. The evidence against Mr. Collin was entirely circumstantial in nature. There is nodisagreement between the parties that a finding of guilt based on circumstantial evidence may only be properly made if such a finding isthe only rational or reasonable conclusion to be reached from the evidence as a whole: see R. v. Cooper, (SCC), [1978] 1S.C.R. 860 at 880. 17.

There is no requirement, however, that all of the circumstantial evidence relied upon for a finding of guilt must be proven beyond areasonable doubt. Nor is there a requirement that a certain amount of the circumstantial evidence must be proved beyond a reasonabledoubt. The requirement is that all elements of the alleged offence, including the element of identity of the offender, must be provedbeyond a reasonable doubt. . . [32] He cited Morin and then articulated the standard from the British Columbia Court of Appeal in R. v. Khan, (BC CA), [1998] 129 C.C.C. (3d) 45 British Columbia Court of Appeal.

In Khan at paragraph 9 the court wrote: The Crown need not prove beyond a reasonable doubt each fact which is said to support the inference of guilt. Each fact may be a link inthe chain of ultimate proof. Sopinka J. made it clear in R. v. Morin… that it is the jury’s duty to consider the evidence as a whole anddetermine whether guilt has been established by the prosecution beyond a reasonable doubt. 18. Hence, it was not an error of law by the trial judge to consider circumstantial evidence proved on a balance of probabilities inreaching his conclusion that the whole of the evidence established the guilt of Mr.

Collin beyond a reasonable doubt. This does notderogate from the principle that guilt must be proved beyond a reasonable doubt.

[ 33 ] I have also considered R. v. Butler from the British Columbia Court of Appeal, a decision of October the 30th of 2007. It has no direct application to this case but it is a reiteration of the test by Justice Donald in our Court of Appeal. [ 34 ] That concludes my review of the applicable law. V - TESTIMONY AND EXHIBITS [ 35 ] I turn next to the Crown theory in respect of this matter and the Crown's theory as it relates to the believability of Cst. Pabla. Crown counsel Mr. Jantunen has submitted that the blow from Cst. Pabla was intentional and not accidental. Mr. Jantunen forcibly submitted that Cst.

Pabla should not be believed because of, amongst other things, the three gestures of description of movement that he made as to how the blow was struck. Moreover, Mr. Jantunen argued Cst. Pabla should not be believed because the whole event was provoked by him. He instigated the interaction, the Crown submitted, and perpetuated the discord with his degrading remarks. By choosing to follow Ms. Olive down the lane of travel between the parking stalls he was provoking her further, the Crown argued. I note that at no stage in the process of his submissions as it related to the guilt of Cst.

Pabla did the Crown submit that Ms. Olive was in the wrong. The only inference I can draw from that is that Crown counsel has taken the view that Ms. Olive was at no time in the wrong. The kick was provoked, the striking with the purse was a clear effort to repel Cst. Pabla, who was following her. In the context of his overall submissions, therefore, it appears to be Mr. Jantunen's argument that because of her lack of size and because of the denigrating remarks that although she was assaulting Cst. Pabla, no use of force was necessary from Cst. Pabla in response to being hit by Ms. Olive's purse at any time.

As a result, in the submission of the Crown the court should find that he is guilty as charged. [ 36 ] I am going to turn next to a discussion and analysis of Cst. Pabla's evidence. Chief Justice McEachern many years ago suggested that since the W.D. test had come into play that the first witness to be viewed would be that of the accused, because if the accused was believed then that was the end of the case. So I will start with Mr. Jantunen's submissions with respect to the believability of Cst. Pabla. Mr. Jantunen submitted that Cst. Pabla was the instigator. He also submitted that Cst.

Pabla perpetuated the process and that submission, in my view, has significant merit given the fact that we are dealing with a 16-year member who has descended into the depths of vulgarity as I have found. His conduct was reprehensible and of a standard one should not expect of a member of the Royal Canadian Mounted Police with that service, and so unnecessary in the context of this case. I am also of the view that his words constituted provocation under s. 36 of the old provisions, of Ms. Olive, causing her to lose her temper. The difficulty is this: There is no question on the evidence that Ms.

Olive reacted with physical violence. The words uttered had provoked her. There was nothing in the words or the actions of Cst. Pabla, however, to suggest that he wanted to fight or engage in physical contact. There was no threat, there was no invitation to fight, there was no response in the form of an invitation to fight or a verbal threat or the application of force by him in retaliation. [ 37 ] Next, Ms. Olive forcibly kicked Cst. Pabla. The injuries depicted in Exhibit 12 photos 1 to 5 are not minor.

This was a forcible kick with significant bruising on the medial side of the knee, the blow having landed on the outside of the knee. Cst. Pabla did not react physically. To the contrary, he took out his badge and told Ms. Olive that she had assaulted him. She was not at that point upset, worried or cowed by his action. As Mr. Miller testified, she was indignant and angry. As Mr. Kerekanich described, the two of them walked almost apace down the lane of travel and from time to time Ms. Olive would turn and yell at Cst. Pabla. Cst. Pabla also was speaking back. Neither of the witnesses have much to say, except Mr.

Miller says this. After Cst. Pabla pulls the badge he says he heard her say in a loud, angry tone, "If you really are a police officer you should know better, so go fuck yourself." Or, "Go fuck off." It was one of those two. He was the witness who classically described their movement down the aisle as being two persons very angry with each other, swearing at each other and he used the term "chirping," which of course is a colloquial reference to people using language that one would not expect to be utilized in a courtroom. [ 38 ] Considering the whole of Cst. Pabla's evidence in comparison with Ms.

Olive's testimony and in comparison with Eldon Kerekanich's testimony and in conjunction with Thomas Miller's testimony, I am of the view that Cst. Pabla's evidence cannot hold up on some aspects. I reject Cst. Pabla's evidence that he was engaging with Ms. Olive for a courteous purpose. His language, his demeanour, his tone and his quick use of sarcasm were at complete odds with such a purpose. His falling into gutterspeak and denigration in response to Ms. Olive's less than friendly retort was consistent with an intent to confront and chastise Ms. Olive. His was not a conciliatory approach.

He did not engage in any of his training of verbal judo or conflict management; rather, he poured oil on the fire. [ 39 ] When I look at Cst. Pabla's evidence, and I will come to that in a whole number of ways in just a moment, I am also of the view that when I look at Ms. Olive's contention in chief that she was scared, worried or upset, that that must also be rejected. She became angry and was the first to resort to vulgarity. Quote, "Don't be a fucking dick. It's just a parking stall, get over it." Those words are not apologetic. When Cst.

Pabla responded in kind, turning her words right away around at her, the response was immediate. So too, was the way in which she articulated that in her testimony. She bit that sentence out. How dare he have turned her words against her? But when Cst. Pabla responded in kind, she became indignant and outraged, yelled as was heard by Mr. Miller, "How dare you?" and she went to Cst. Pabla and she kicked him forcibly in the shin. Now, Miller did not see that, but Mr. Miller describes that at that point she swung her purse at him.

So he is the one witness who has the swinging of the purse clearly in mind before they had walked down the lane of travel. [ 40 ] I return to Cst. Pabla. Now, before I deal in total with the points of Cst. Pabla's evidence, as I said earlier I was going to deal with matters not in issue. Before I deal with his testimonial veracity and reliability I will first outline the uncontroverted evidence of the accused as to his physical and mental attributes. He was born in India in 1966. He became a member of the Royal Canadian Mounted Police in 1995.

He has two undergraduate degrees, one from Acadia University in 2009 and a second from Mount St. Vincent in Halifax in 2010. He obtained a Master's degree in Criminal Justice from the University of the Fraser Valley in June 2012. [ 41 ] His medical history is tragic... no other word. In 2005 he had a broken leg and ankle, spent eight weeks in hospital. In 2008 on parental leave while in India he was struck by a truck and his neck was broken. He had four discs that were pressing against his spinal cord.

He had surgery back here in Canada in January of 2009 in which they put a metal plate in his neck with six screws to keep his discs off of the spine and the spinal nerves. He is not someone who is going to engage in fisticuffs. In November of 2010 he suffered a brain aneurysm. On November the 26th he suffered injuries involving a skull fracture and internal bleeding which led to hospitalization from November the 26th of 2010 to January the 3rd of 2011. He returned to work in September of 2011 in an administrative capacity.

He has not been operational since his traffic accident. [ 42 ] I am particularly struck by Cst. Pabla's evidence at a number of passages in examination and cross-examination. In chief he said that what he said to Ms. Olive was, "Excuse me, I was -- I just wanted you to know that I was waiting for that spot and you came in and took it." Ms. Olive responded, "I didn't know you were waiting." Cst. Pabla, "Well, I was stopped and I had my blinker on." Ms. Olive, "I didn't see your blinker." At that point she begins walking. Cst.

Pabla, "If you didn't see my blinker, maybe you should wear a lighter shade of sunglasses." He then said that Ms. Olive turned and said, "Fucking dick," and flipped him the bird. Cst. Pabla said, "I told her there's no need to use vulgar language and she then responded again, 'You're an ass,' and, 'You're an asshole.'" And he said he said, "What's up with ass? What's up with fucking dick? Why is that coming out of your mouth?" Now, that is the testimony of Cst. Pabla. That testimony does not stand the independent scrutiny of either Mr. Miller or Mr.

Kerekanich and I am of the view that I accept their testimony rather than his. I also noted at page 47 another change, at lines 26 through 40 and this is a particularly significant thing: She started walking away from me again. I felt a pain in my left leg and knee. I knew that my distraught daughter and pregnant wife were waiting for me at the dentist's office. I thought the best thing to do was get there as quickly as I could and get off my feet. I started walking in the same direction as this female. She looked back over her shoulder and told me to stop f'ing following her.

At first I didn't say anything, but she kept repeating it louder and louder. So I told her, "I'm not following you, I'm going into the dentist office. It's just through those doors." And I raised my hand and pointed to the doors. I said, "I'm going inside those doors." [ 43 ] At page 49, lines 18 to 21 he said: I took my right arm and with the back of my hand I made a swatting motion, like to bat something away, which I thought was her purse coming at me. And it hit her shoulder -- Q When you say "it", what are you referring to?

A The back of my hand hit her shoulder, bounced up and the back of my hand hit her left cheek. And the explanation was, "I thought I saw the bag coming again." [ 44 ] He also said with respect to his interaction that he said this to Mr. Kerekanich. Question at line 33 at page 49: Q Before entering the mall did you have any interaction with anybody else besides Ms. Olive? A There was a gentleman who said to me, "You shouldn't hit women," or, "You don't hit women." And he started to go, "I told him. . ." A I wasn't trying to intentionally hit her, that I was trying to defend myself. That is not what Mr.

Kerekanich said. What Mr. Kerekanich said he said to him was, "She hit me first." I found those passages and those exchanges an attempt by Cst. Pabla to argue and persuade. It was not forthright testimony of what it was that happened, but rather it was an attempt to explain what it was he was thinking at the time, rather than open and clear testimony describing what had occurred. [ 45 ] There are a number of passages coming from Cst. Pabla which therefore have led me to the conclusion that he is not an accurate, reliable or believable witness on several points in the course of his evidence.

Page 54, lines 41 to 43: Q At any time were you behaving in an aggressive manner towards Ms. Olive? A No, I [did] not. Well, that's not correct. The words which he exchanged with her in my view were denigrating words driven at humiliating her and they are directly contrary to Ms. Olive, Mr. Miller, Mr. Kerekanich, and I do not accept his evidence on that point. [ 46 ] At page 57, lines 3 to 11, Mr. Jantunen was trying to push him with respect to points and he delved into sarcasm, sparring with Crown counsel rather than simply answering the question.

With respect to questions about his training and the use of conflict management at page 58, lines 1 and 2 his answer was clipped and not forthright and I am of the view that those answers in conjunction lead to the inescapable conclusion that his evidence was given in an unresponsive, defensive and obstructive approach, rather than being clearly forthright. [ 47 ] One other portion of the evidence which was significant was at page 63, and his purpose in speaking to Ms. Olive. He wanted to say that it was courteous.

It is apparent from all of the reasons that I have already referred to that this was not a circumstance where he was simply seeking an apology, it was one where he was seeking to confront and chastise.

[ 48 ] At page 64 there was a curious answer from an officer of 16 years. He said with respect to Ms. Olive, the following. Lines 7 and 8, and this is in cross-examination by Mr. Jantunen and it was in relation to the words initially uttered by Ms. Olive when she descended into vulgarity: Q Did that not make you angry? A No. It shocked me that someone would use that language.

Bringing a measure of realism to the assessment, that is difficult to believe of a 16-year veteran of the Royal Canadian Mounted Police who would clearly have had interaction with people on the streets who would frequently have utilized significantly salty language in all of his interactions with them. He also denied the use of terms which when compared with Mr. Kerekanich who talked about the "take it in the ass" language, that he is at odds with both of them. [ 49 ] Yet on the other side of the coin there was one answer which he gave which had a significant ring of truth to it.

In cross- examination at page 66, lines 42 to 46 Mr. Jantunen said: You needed a use of force weapon to take on a five foot five, slenderly-built girl? His answer was very interesting: I didn't want to get into any kind of a tussle with her because of the injuries to my brain and back and neck. The way in which that was said and the context in which the evidence was given is such that that might reasonably be true. [ 50 ] As to whether or not he could have taken another route to the door and his comment that he took the shortest route to get to the dental office, his answer is patently incorrect.

The quickest line was the diagonal across the parked lines of cars across the lot and he could easily have walked between the vehicles for the purposes of taking a different route from Ms. Olive. [ 51 ] He was equally unresponsive to direct questions at page 28 and his three gestures of what I will call the motion at page 69 and 70 were in my view not impressive, given him being a professional witness and a police officer. As with Ms. Olive, I was not of the view that Cst. Pabla was a forthright, open witness.

For the reasons outlined above I am of the view that he tailored his evidence to place himself in the best light, as did she. [ 52 ] The sense of his evidence is also one which is belied by the conflict between his recounting of what was said and the independent witnesses Kerekanich and Thomas Miller, as well as the concessions by Ms. Olive. Cst. Pabla sparred with Mr. Jantunen; his stated purpose of going to Ms. Olive does not hold water in the context of his three-year-old being at the dentist and having a temper tantrum and having to be dealt with by his pregnant wife.

His assertion that he was shocked to hear such language is, as I have said earlier, difficult to understand and difficult to believe. On the whole of his evidence, therefore, I am of the view that he is not a wholly reliable witness. VI - DISCUSSION AND ANALYSIS [ 53 ] Continuing with the discussion and analysis, and as I did with Mr. Jantunen's submissions, I am going to deal with the closing remarks in Ms.

Winteringham's written argument which were embellished by her oral submissions yesterday but which basically lay out the theory of the defence as it relates to the whole of the evidence and in particular the penultimate decision. I will commence at paragraph 120. Ms. Winteringham wrote: Ms. Olive's story is simply astounding. She says at the very least that she first kicked Mr. Pabla, that she flipped him the finger, struck him with her purse (perhaps more than once). . . If you look at Cst. Pabla's evidence and Mr.

Miller's evidence there is twice. . . .all the while engaging in an offensive verbal exchange with him. And after she struck him with her purse he hit her (in a way that was not a slap) in "one continuous transaction." Paragraph 121: That is Ms. Olive's evidence at its best and it is respectfully submitted that what she described does not constitute a criminal act, at least on the part of Mr. Pabla. Not even close. 122: In all the circumstances of this case it is respectfully submitted that Mr. Pabla's reaction to Ms. Olive's conduct constituted self-defence

and any use of force was reasonable in the circumstances. He was not speculating about whether Ms. Olive was going to use force. She already had. His belief that he needed to protect himself was absolutely reasonable in light of the conduct that had preceded his hit. His evidence in this regard should be accepted.

He was skilfully cross-examined, and despite the efforts of the Crown he maintained a calm demeanour throughout and when challenged on material points he did not resile from his testimony (i.e., that he simply wanted to get to the dental office to sit after being kicked, that he did not intend to hit Ms. Olive, that he was concerned about being struck again particularly in light of his medical condition). His evidence is worthy of belief. She submitted. 123: In addition, it is respectfully submitted that it is not clear on the evidence whether the circumstances as described by Ms. Olive constitute an assault.

However, even if the court finds that her testimony (or while relying on the testimony of other witnesses) constituted an assault, the defence of self-defence is made out. 124: That being said, if the court concludes that it rejects Mr. Pabla's evidence and that his evidence does not raise a reasonable doubt, the court must look to the entirety of the evidence to determine whether the Crown has made out its case. It is respectfully submitted that the evidence of the Crown witnesses is controversial and the controversies are not resolved.

We examine first the testimony of the complainant then turn to the balance of the civilian witnesses. [ 54 ] I am going to turn to the evidence of Ms. Olive in a moment but I will conclude with the final submissions of Ms. Winteringham, Q.C. She said at paragraph 127, and I will deal with each of the points (a), (b), (

c) and (d): (

a) That Ms. Olive unlawfully assaulted Mr. Pabla when she kicked him; (

b) That Mr. Pabla did not provoke the assault by Ms. Olive; (

c) That the force used by Mr. Pabla was not intended to cause death or grievous bodily harm to Ms. Olive; and (

d) That the force used by Mr. Pabla was no more than was necessary to enable Mr. Pabla to defend himself. 128: Mr. Pabla, under oath, denied that he intentionally struck Ms. Olive. It is respectfully submitted that Mr. Pabla’s testimony in this regard should be believed or, at the very least, raise a reasonable doubt about whether it should be believed. Should this aspect of his evidence be rejected, it is nonetheless submitted that Mr. Pabla used no more force than was necessary in all of the circumstances.

His belief that he needed to take such measures was objectively and subjectively reasonable, particularly in light of Ms. Olive’s admitted conduct (and you need not resolve any of her testimony on this point). He used no more force than was necessary in these circumstances. In addition, Mr. Pabla is entitled to any doubt that this Court has regarding his subjective and objective belief. [ 55 ] The points as to Ms. Olive's testimony and what weight to be attached to it. I have reviewed Ms.

Winteringham's submissions and I have come to 11 points that I have utilized in a comparison and assessment of her evidence, and I will take the time at this stage due to the language in Sandhu in the Court of Appeal to explain myself. At page 9 of the transcript Ms. Olive is asked to answer a question by Mr.

Jantunen and she says, "Would it be okay if I referred to my statement?" She then was permitted to step outside, having been discomfited, and it appears that at page 10 her explanation was, "I'm just a little nervous, that's all." [ 56 ] The events outside of the room disclosed that she went outside with others and she took out of her bag or purse or whatever it was she had, her statement to look at it, when she was stopped by the victim witness worker. That was a curious action by Ms. Olive. It reflects her naïveté, perhaps.

It was conceded by her at page 42, lines 9 through 11 in cross-examination, but it goes to establish an aspect of her personality or character, if you will, in that she does not appear to be one who wishes to be bound by rules or controlled by others. Because she knew clearly that the question of her being removed from the room was in relation to a ruling required from the court for her to be able to either look at her statement or not, and she was prepared to just simply pull it out and look at it. [ 57 ] I was also struck by a second point.

At page 13 in her examination-in-chief she left out the profanities which she used in her interaction with Cst. Pabla. [ 58 ] The third point, there are numerous characterizations by Ms. Olive that she was "scared." But consider the course of conduct as disclosed in her interaction and her kicking and her verbiage as it relates to Cst. Pabla while they are in the travel lane for traffic, as described by Mr. Miller, Mr. Kerekanich and Cst. Pabla. To that extent Cst. Pabla is confirmed and corroborated by Mr. Kerekanich and he is confirmed and corroborated by Mr.

Miller. [ 59 ] Point number 4, with respect to her evidence at page 20, line 22 she denied that there was a "slapping sound" when she was

being struck, and one must simply compare her denial and her characterization, "I've been slapped and it didn't feel like that," and compare it with the evidence of Mr. Kerekanich as to what he described seeing and hearing. [ 60 ] Point number 5, Ms. Olive did not tell the 9-1-1 operator when she was talking on the phone, nor did she tell the investigating officers that she had kicked Cst. Pabla during their first angry exchange. [ 61 ] 6. Ms. Olive did not tell the 9-1-1 operator that she had "flipped her middle finger" at Cst. Pabla. [ 62 ] 7. As Ms.

Winteringham spent some time on, there was a leading interview conducted by Cst. Northrup, who was a family acquaintance. That leading interview did not take place until January 31st, 2012. Throughout the cross-examination it was readily apparent that the first person to raise issues with respect to fear was Cst. Northrup. It was also pretty clear that Cst. Northrup had grave difficulty getting Ms. Olive to give her a detailed description of what had happened. In particular, I noted that at page 33 lines 1 through 18, Ms.

Olive minimized and gave evasive responses to question after question about the nature of the kick, the force of the kick, the location where the kick landed, what her intent was at the time.

Her answers when looked at in the light of the transcript are such that one can only say that she is tailoring her evidence to minimize and put herself in a better light. [ 63 ] Ninth, as happens frequently with witnesses, and I am referring to the credibility factors to which I have referred earlier, with witnesses who did not make statements or notes, they have grave difficulty having seen the items, having stored in their memory and recalling them and articulating them accurately if there were no notes or statements.

That is why collateral details are so significant to an assessment of the weight to be attached to a witness' evidence. When I look at the whole of the evidence of Ms. Olive as it relates to the kick and I look at the photographs in Exhibit 12, I am satisfied that her evidence was not forthright, nor was it clear, nor was she attempting to be forthright as to what it was she had done at that stage. [ 64 ] Moreover, with respect to the memory point, at pages 47 to 49 of the transcript she gave an explanation.

That explanation was particularly poignant in light of what had transpired in terms of the police trying to get her to provide a statement and what had happened in terms of her attendance on Cst. Northrup or Cst. Northrup's attendance upon her, it is not clear how that was achieved but she said, and I quote, "I wish I could remember everything. I mean, I've tried really hard to forget it." And then at pages 48 and 49 of the transcript she said: Yes, I was trying to move forward from what happened.

I wanted to put it in the past and when I found out that there was actually going to be a trial for it, I tried my best to remember everything because I knew I was going to have to face it again. [ 65 ] There is a passage in her testimony that I noted during the course of my earlier review of all of the questioning where at pages 28 and 29 there are a lot of answers which commence with the words, "I don't remember." That is particularly significant in that it is at line 1, line 6, line 11, line 15, line 27, line 32, line 33 and line 39.

She is talking about her interaction with the police and her failure to provide statements in a timely fashion, and is disclosing very clearly to the court that she was, as she said, trying to put this matter behind her and forget all about it. At page 49 she says, "I don't remember using the F word." That caused me to try to clarify that, because it was a situation where her use of the word was intertwined with angry language and testified to by Mr. Miller, by Mr. Kerekanich and Cst. Pabla.

All of those uses of this Anglo-Saxon word are all timely and in contextual analysis apt to angry exchanges where that word would be used in a pejorative sense. [ 66 ] Then there was one last thing that was particularly significant to her testimony as to the outset. In chief at page 6, in response to a question from Mr. Jantunen, she said that when she had come up to the stall the first time, contrary to what she said to Cst. Pabla, she said, "I saw two cars. I didn't know they were waiting for the spot. I thought they were just letting the car back out." What is really clear is that Mr.

Kerekanich testifies that she is using words when she is, at lines 43 to 47 of page 68 of his testimony she said words to Cst. Pabla to the effect of, "I didn't even see you," yet she had seen the two cars waiting for the stall. [ 67 ] Last but not least, with respect to the interaction at the time of the penultimate moment here, it is said by both Cst. Pabla and Mr. Kerekanich that the way in which it occurs is as follows, that she turned on the sudden, swung her bag (purse) at Cst.

Pabla and said, "Get the fuck away from me," that the purse then struck the male and there was an instantaneous reaction from the male. [ 68 ] It is for those reasons and the factors which I have outlined in my recitation of the analysis and assessment of credibility that I make the following conclusions with respect to Ms. Olive as a witness. Ms. Olive was a witness in whose evidence it was difficult to have confidence. For the foregoing reasons, her evidence on many points was not only evasive but was demonstrably unreliable.

I have confidence in her testimony only where her testimony was confirmed or corroborated by others such as Mr. Kerekanich or Mr. Miller. VII - THE FACTS [ 69 ] Based on my assessment of the whole of the evidence and in particular my credibility assessment of the testimony of all of the witnesses, particularly those independent of Cst. Pabla and Ms. Olive, I am of the view that the following facts have been established for the purposes of the assessment of whether or not the two issues have been established by Crown beyond a reasonable doubt. Shortly before 1:00 p.m. on December the 31st, 2011 Ms.

Olive was driving a motor vehicle, Cst. Pabla was waiting as one of two cars for the car to back out, that the stall came free as Cst. Pabla was waiting and Ms. Olive pulled in and parked her vehicle in the stall. Ms. Olive took some time to gather her phone, her purse, her water bottle and to leave the vehicle. The water bottle had gone into her purse. Cst. Pabla continued on and parked his vehicle and since she had been delayed, he came across the parking lot and approached her. He said words to the effect, "You took my parking spot." Ms.

Olive and he then engaged in a conversation about blinkers or signals, they engaged in a conversation about sunglasses and Cst. Pabla suggested sarcastically that the sunglasses were too dark. Ms. Olive's response was very strong. Her response was to descend into vulgarity. She said, "Stop being a fucking dick. It's just a parking spot," or, "It's just a parking stall, let's just move on."

[ 70 ] I am satisfied that Cst. Pabla also descended into vulgarity. There is no question in my mind, having regard to the words overheard by Mr. Kerekanich and Cst. Miller and the words articulated in the response of Ms. Olive that he used denigrating sexual germs such as "dirty slut," "Do you like to take it in the ass?" or, "You like dick" or words to that effect. The reaction of Ms. Olive was instantaneous. She yelled the word, "What?" She then yelled the words, "How dare you?" She spun and she flung her purse at Cst. Pabla and she also came at him and kicked him. Cst. Pabla did not respond physically.

She had moved away. He pulled out his police badge, held it up in front of himself and identified himself as a police officer and used words to the effect that he had just been assaulted and that she should stop. Her response again was elevated. It was, "If you really are a police officer you should know better, so go fuck yourself," or, "Go fuck off." She then turned and was walking. The two of them then engaged in verbal jousting. From time to time Ms.

Olive would turn as the two of them walked down the traffic lane from where they had initially engaged each other and she would turn periodically and momentarily, swearing back and forth, exchanging angry words, swearing at each other. [ 71 ] At that point in time Cst. Pabla was some three to four feet behind her and from time to time he got within one to two feet. As they got towards the front of the entranceway either on the travelled portion of the roadway at the south end of the parking stall lane or just inside the pylons at the south side sidewalk, Ms. Olive turned on the sudden and swung her purse at Cst.

Pabla, saying, "Get the fuck away from me." There was an instantaneous reaction from Cst. Pabla. He moved his right arm and the result of his movement of the right arm was that she was slapped in her left cheek with his right hand. There was a loud smack. Mr. Kerekanich drew the inference it was an open hand, from the sound which he had heard. Mr. Kerekanich immediately intervened. [ 72 ] There was no resistance from Cst. Pabla, but there was an interesting exchange between Mr. Kerekanich and Cst. Pabla. The comment was, "You don't hit a woman," from Mr. Kerekanich, and Cst. Pabla said, "She hit me first." Mr.

Kerekanich pushed Cst. Pabla back. There was no resistance and at that point there was no further interaction between Cst. Pabla and Ms. Olive. VIII - CONCLUSION [ 73 ] For the foregoing reasons I am of the view, considering the whole of the evidence, that the Crown has not proven beyond a reasonable doubt that Cst. Pabla is guilty of the offence of assault. There are two findings that inexorably lead me to that determination. Cst. Pabla's description of his movement as confirmed by Mr. Kerekanich was instantaneous to the movement of the purse of Ms. Olive.

Moreover, his explanation might reasonably be true as was discussed in W.D. and H.C.W. The reason that it might reasonably be true is that there had been two previous occasions in which Ms. Olive had been physical with Cst. Pabla. Moreover, one has to look at Cst. Pabla's medical circumstances. From a subjective perspective, the last thing he needs is for anyone to hit his head. Moreover, the last thing he also needs is for there to be some aspect of his neck or head moved rapidly, because it would likely cause significant injury.

In those circumstances I cannot find that there is an unreasonable use of force by the single blow by Cst. Pabla which was part of his action, on his evidence to block the purse, or on the evidence as viewed by Mr. Kerekanich, a single blow at the female who was attacking Cst. Pabla. In my view, a single blow in those circumstances is reasonable having regards to the provisions of s. 34(1) of the old provisions, s. 37 of the old provisions and certainly s. 34(2)(

a) through (

h) of the new provisions. [ 74 ] I am mindful that Mr. Jantunen went on and on about the fact that Cst. Pabla had another means available to respond to the potential use of force. That is true about the overall interaction of these two. There was no need for him to go and deal with her in the first place. But once we are into the mix, once the events are unfolding, there is nothing which requires him to quit the field. There is nothing which requires him to just benignly accept a blow.

There is nothing in the law which in any way requires any person to permit themselves to be struck blows, whether it is a five foot five slenderly-built female person or a child or a large behemoth of a man who is intending to do grievous bodily harm. None of us is required to stand idly by and accept a blow. [ 75 ] In the context of this case I could not agree with Mr. Jantunen more.

One would expect a trained police officer to have de- escalated the process much earlier; but in the penultimate moment when there is the purse being swung at him, he was in my view reasonably attempting to defend himself having regard to the self-defence provisions. [ 76 ] As I said, there are two aspects to me finding that a case has not been made out by the Crown. The other finding is in relation to Cst. Pabla's testimony, his description of the three movements and the force which was clearly not significant to Ms. Olive in the context of the case as described in some detail by Mr. Kerekanich.

I am of the view that the context of it striking the shoulder and running up to strike the left cheek might, on the whole of the evidence, reasonably be true and he is entitled to that reasonable doubt as a matter of law. For those reasons -- stand, sir -- I find you not guilty on this Information. [ 77 ] Thank you again, counsel. (REASONS FOR JUDGMENT CONCLUDED)