R. v. Merriam, 2019 BCPC 317

Citation: R. v. Merriam 2019 BCPC 317 Date: 20191205 File No: 20639-1; 20639-2-A Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAREN JOYCE MERRIAM ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: P.J. Cheeseman, S.M. Rupertus Counsel for the Accused: T. Bulmer Place of Hearing: Colwood , B.C.

Dates of Hearing: May 22, 23, 2019 and August 2, 2019 Date of Judgment: December 5, 2019 Introduction [ 1 ] THE COURT: Karen Joyce Merriam has been charged with and tried for three offences arising out of a series of events which are alleged to have occurred at or near Sooke, British Columbia, on May 6, 2018 (the "Events"). The Events started at and continued

from the family home (the "Family Residence") owned by her daughter, Janene Walker ("Janene") and her son-in-law, Joseph Walker("Joe") in which Karen Joyce Merriam (the "Accused") also lived at the time of the Events. [2] There is conflicting evidence about what occurred in the course of the Events.

There is a disputed allegation that the Accusedwas intoxicated by alcohol which then precipitated the Events. [3] The task of this Court is to determine whether or not the Crown has discharged its burden of proof beyond a reasonable doubton each of the three charges. [4] In coming to that determination, this Court will be required to carefully consider the non-matching narratives presented by thethree main civilian witnesses in this trial, and to assess the credibility and reliability of those witnesses and that evidence. Description of the Charges [5] The three day trial dealt with the following

summary conviction charges:

a) Count 1: Knowingly uttering threats to Joe to cause death or bodily harm to Janene, contrary to s. 264.1(1) of the CriminalCode;

b) Count 2: Committing the common assault of Janene, contrary to s. 266 of the Criminal Code;

c) Count 3: Impaired driving of a motor vehicle contrary to s. 253(1)(

a) of the Criminal Code. [6] Accordingly, there are three alleged incidences that form part of the Events, being the "Uttering Incident", the "AssaultIncident", and the "Impaired Driving Incident", all of which are described in more detail below.

The Evidence [7] For the purpose of these reasons, I have broken the evidence into three categories. [8] First, what I view as non-controversial background facts that surround this case. [9] Next is the evidence adduced by Crown in support of the Crown's theory of the case, for the most part provided by theComplainants, namely Joe and Janene, and by Constable Jason Messenger. [10] Last is the evidence adduced by defence in support of their theory of the case, which has been provided by the Accused on herown behalf. [11] For the benefit of the parties, it is important to understand the approach that I have followed in summarizing the evidence inthese Reasons for Judgment.

It is the same approach usefully and concisely set out by the Honourable Judge T.S. Woods in the decisionof R. v. Connell, 2017 BCPC 123, at paragraphs 5 and 6 as follows: [5] Finally in this introduction, before turning first to set out the Crown and defence theories of this case, I will candidlyacknowledge that in these Reasons for Judgment I have not made reference to all of the testimony given by the witnesses who werecalled, or to all of the documentary evidence that was received and marked.

I have, rather, referred to evidence that I consider it necessaryto mention in connection with my factual findings and the legal conclusions that flow from them. In places I have made mention ofevidence that I have been unable to accept, and of the reasons why I have been unable to accept it. If evidence is not mentioned in thisdecision, both Crown and defence may take comfort that the omission is not the result of my not having taken note of it. I have read allof the transcripts from end to end. I have done the same with all of the documentary exhibits.

If witness testimony or documentaryevidence do not come up for specific mention in these reasons, that is because: (

a) The evidence was not relevant; (

b) The evidence is to the same effect as other evidence of which mention has been made; or (

c) The evidence was tendered in support of alleged facts I have not found and arguments that I have not accepted, having regard to thefacts that I have found and the arguments that are supported by those facts. [6] That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed andsomewhat selective canvassing of the evidence heard at trial is well established on the authorities.

The law is clear that where there issubstantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make areversible error by failing to refer to every item of evidence that was adduced: see, for example, R. v. Tse, 2013 BCCA 121 atpara. 56; R. v. Blacklaws, 2012 BCCA 2017 at para. 50 (aff’d, 2013 SCC 8 ); and R. v. Dinardo, 2008 SCC 24 at para.30.

Summary of the Undisputed Circumstances [12] As indicated above, Joe and Janene are husband and wife. The Accused is the mother of Janene. Janene and Joe have two youngchildren, namely E.W., presently age five ("Child E."), and W.W., presently aged [approximately a year and a half] ("Child W."), all ofwhom resided at the time of the Events in the Family Residence. [13] Janene is age 35 and is engaged in a home-based crafting business, as well as being a stay-at-home mother for her two children.She is relatively short in height and of a relatively large stature, based upon this Court's observations.

No direct evidence was adducedabout her height or weight, other than from the Accused's testimony which places Janene's weight at 250 pounds.

[ 14 ] Joe is 35 years old and is a full-time serving member of the Royal Canadian Navy, based in Esquimalt, BC, with over 10 years of completed service on naval ships. [ 15 ] The Accused is 59 years old and is a retired naval communications person, having first been a naval reservist and then served in a full-time naval capacity on a contract basis while living in Halifax. This military service, for the most part, occurred prior to her medical retirement and before moving to Vancouver Island.

The Accused testified that she weighs 150 pounds. [ 16 ] In September 2016, the Accused moved into and lived in the downstairs bedroom of the Family Residence and paid rent of $500 per month for that accommodation. She also had access to other parts of the Residence and specifically to the upstairs main level which contained the main living area for Joe, Janene, and their two children. The Accused also had access to and use of the main bathroom on the main level.

The main level and the downstairs level are connected by an interior staircase. [ 17 ] There is a complex and admitted historical family dysfunction, especially between Janene and her mother, the Accused, but also between the Accused and the Accused's own 90-year-old mother, who resides in Cranbrook, the ("Grandmother"). The Accused and her own mother, the Grandmother, previously had not spoken with each other for some two years.

Janene maintains a very close relationship with her Grandmother, which I understand to also be a source of conflict between the Accused and Janene. [ 18 ] Besides her daughter Janene, the Accused has a son Jordan ("Jordan") who is the father of a young child by his ex-common law spouse Merrisa ("Merrisa"), both of Halifax. This couple had separated by the time of the Events. My sense is that there is also a level of conflict between Janene and Jordan. The Accused has a close relationship with Jordan, which further compounds the unhappy family dynamics.

Up to the time of the Events, Joe and the Accused had maintained a cordial relationship. [ 19 ] The Accused had gone back to Halifax in [omitted for publication] 2017 to assist Jordan and Merrisa with the birth of their prematurely-born child, and thus was not present when Child W. was born in [omitted for publication] 2017. [ 20 ] The Family Residence is built on a sloping lot facing down a very steep driveway on a 35-degree angle (the "Driveway"). It leads from the garage at the front of the Family Residence to the public roadway below.

The master bedroom on the main floor of the Family Residence is built over the garage and hence the main bedroom windows overlook the Driveway and the public roadway. [ 21 ] The backdoor, which I understand is at the rear of the Family Residence on the downstairs level and is therefore at the opposite side of the Driveway. It exits on grade with the adjoining backyard. Other than the Accused's bedroom downstairs, the main living space is on second floor.

There are balconies off of the main-floor living space. [ 22 ] The Accused had purchased a KIA motor vehicle, white in colour (the "KIA") shortly after the Accused moved to the Family Residence. It was registered in Joe's name, and he and the Accused utilized it for commuting to and from work, and the Accused also drove it from time to time.

The Accused also drove Janene and Joe's SUV from time to time with their permission. [ 23 ] A couple of days before the Events, Janene and the Accused had a heated argument about Merrisa and the new grandchild coming to Sooke to stay at the Family Residence for a visit with the Accused, while Janene and Joe were scheduled to be away for this period attending a planned surprise birthday party in Cranbrook for the Grandmother. The Accused did not plan on attending the birthday party.

Janene and Joe were not keen to have Merrisa (whom they had not met) visit the Family Residence in their absence, and were strongly suggesting Merrisa and the grandchild travel first to Cranbrook for the birthday party, and then continue back to Sooke, when Janene and Joe had returned. The Accused opposed that plan and had voiced her opposition to Janene and Joe and to the Grandmother, noting that Merrisa had already purchased her airline tickets in accordance with the original plan of not going to Cranbrook.

There is evidence that Merrisa did not want to go to Cranbrook and that she suffers from "social anxiety". [ 24 ] The tension between the Accused and Janene continued and they exchanged further heated words around 3:30 p.m. on the day of the Events.

That argument was also fuelled by some previous remarks made by Janene to a friend during a telephone call, which remarks were overheard by the Accused. [ 25 ] Janene testified that although she intended it to be humorous, these overheard remarks were taken by the Accused to be insulting about her and her son, Jordan, the inference being that they were both "crazy" and that Merrisa would believe the rest of the family to be "crazy", based upon only meeting the Accused and Jordan. [ 26 ] Following that particular argument, the Accused left the Residence and drove away in the KIA.

Joe, who was working on a home improvement project in the garage, observed the departure and spoke to Janene, and thereby learned about these heated words exchanged between the two of them. [ 27 ] Joe made the assumption that the Accused was going to be drinking and driving, and therefore sent a text to the Accused asking her to return and "hang out" with him. The Accused apparently returned to the Residence between 4 to 4:30 p.m. and had a discussion with Joe.

Janene testified that the Accused then spent an hour to an hour and a half hours downstairs in her bedroom, during which time Child E. spent some time with her watching TV. During that period of time, there was little or no conversational interaction between the Accused and Janene. [ 28 ] Janene was upstairs in main part of the Residence attending to the baby, Child W., and getting her a bottle to soothe her, when the Accused came upstairs to the main living part of the Residence to use the toilet facilities in the main bathroom. Two further verbal interactions occurred.

Joe was present. [ 29 ] According to Janene's evidence, the first interaction was what Janene took to be a critical comment made by the Accused about Janene, and directed to Joe and the Child E., regarding Janene letting the baby, Child W., scream. Janene testified she responded by saying she was in the process of getting Child W. a feeding bottle. The second verbal interaction was what Janene took to be a further critical comment made by the Accused and directed to Janene and Child E., to the effect that Child E. was being neglected. Janene says she ignored that remark and did not respond.

[ 30 ] The Accused then went downstairs and outside to smoke at the side of the Residence in the designated outdoor smoking area. The Accused had a telephone with her that had a speaker function. The Accused then engaged in a telephone conversation on the speakerphone (the "Overheard Telephone Discussions"). Janene overheard those discussions and believed it was the Grandmother with whom the Accused was speaking. Joe also overheard the Accused's participation in those telephone discussions. He assumed it was Merrisa with whom the Accused was speaking.

The Accused testified that it was Merrisa and her telephone discussions with the Grandmother were a couple of days before that. Based upon what they overheard during the Overheard Telephone Discussions, Janene and Joe testified that they formed the opinion that the Accused was highly intoxicated. That intoxication is denied by the Accused. [ 31 ] A physical altercation occurred between the Accused and Janene in the evening of that same day, being May 6, 2018, around 8 p.m., in the presence of Joe (the "Assault Incident").

There is significantly conflicting evidence about what occurred, about who started the Assault Incident, and who was the victim. On one hand, in their testimony, Janene and Joe allege it was the Accused who started the physical altercation and assaulted Janene.

The Accused, on the other hand, contends it was Janene who started the physical altercation and assaulted the Accused. [ 32 ] Following the Assault Incident, Joe accompanied the Accused away from Janene, and down to her own bedroom, at which time the alleged uttering of threats made to Joe to cause bodily harm to Janene are alleged to have occurred (the "Uttering Incident"). That allegation is denied by the Accused. [ 33 ] Janene called 9-1-1 around 9 p.m. to report the Assault Incident to the police. Joe and Janene also observed that the Accused was driving away from the Residence in the white KIA motor vehicle.

Therefore, they further reported that the Accused was significantly intoxicated by alcohol and was driving away from the Residence on the public road. [ 34 ] Constable Messenger responded to the call at the Family Residence around 9:20 p.m. and, based upon his brief discussions (10 to 15 minutes in duration) with Janene and Joe, he went out searching for the Accused.

He located the white KIA vehicle at the top of the road on which the Family Residence is situated, approximately 80 minutes after the 9-1-1 report had been received by the RCMP. [ 35 ] Constable Messenger located the Accused lying down in gravel amid building materials, about 20 to 30 feet from the KIA. She was unresponsive. She was only clothed in sleeping attire with a light sweater. Constable Messenger detected a strong smell of liquor from the Accused.

Constable Messenger was finally able to get a response from the Accused; he noted a gash on her head, called for an ambulance which attended to examine and assess the Accused. [ 36 ] She was cleared by the paramedics and then arrested by Constable Messenger for being drunk in a public place and taken to the Sooke detachment of the RCMP, where she was held overnight and released the next morning. [ 37 ] The KIA was impounded by the police following the arrest of the Accused, and then released to Joe early the next morning as the registered owner. [ 38 ] Constable Messenger returned to the Residence to obtain a statement from Joe and Janene. [ 39 ] The circumstances occurring following the Assault Incident and the Uttering Incident, and specifically being that of the Accused driving away from the Family Residence in an alleged intoxicated state, gave rise to what I refer to as the "Impaired Driving Incident." The Disputed Circumstances [ 40 ] The Accused disputes many of the circumstances surrounding the Assault Incident, the Uttering Incident, and the Impaired Driving Incident, and with a specific denial that she was intoxicated at any time during the Events.

Evidence of Janene Walker Janene's Personal Circumstances [ 41 ] Janene conceded in her cross-examination that prior to having a stroke, that she was much more excitable, but for the last six years she is much calmer and less excitable. She takes medication for anxiety. [ 42 ] She further confirmed that she harbours resentment towards the Accused for the way that she has "been treated throughout [her] life".

She denies that in the past she had threatened the Accused with a knife. [ 43 ] She conceded that she and her in-laws are estranged. [ 44 ] She further confirmed that in the course of conducting her home-based business, she is not in bed until 3 a.m. in the morning and then sleeps in late. She further confirmed that from time to time she receives assistance from both Joe, as well as the Accused, for the care of the two children.

Janene's Observations of the Accused's Intoxication [ 45 ] Janene testified as to her own significant life experience around the consumption of alcohol and being with other individuals who had consumed or over-consumed alcohol. Those experiences informed her ability to detect, by way of observation, persons being in a state of alcohol intoxication. [ 46 ] It was during the Overheard Telephone Discussions that Janene observed and concluded that the Accused was upset, angry, and drunk. She made the drunkenness assessment on the basis that the Accused was "slurring her words".

Prior to that, Janene had not realized the Accused's level of intoxication, but believed she had been drinking that afternoon, either prior to or after her return to the Family Residence following the text urging from Joe.

[ 47 ] Janene testified that on numerous prior occasions, she had seen the Accused intoxicated by alcohol, estimating that to be some 30 times, and in the course of those occasions had heard the same slurring of Accused's speech caused by that intoxicated condition.

Also, when the Accused lived in Halifax away from Janene, Janene had spoken to the Accused by telephone and often recognized that same slurred speech pattern of Accused, again caused by the Accused's alcohol consumption. [ 48 ] Janene testified that the Accused's slurred speech pattern is what she overheard during the course of the Overheard Telephone Discussions and in what she believed to be the Accused's heated discussions with the Grandmother.

Janene further said that when Accused was not drinking, the Accused has a clear voice and speech pattern and does not slur her words, noting that a clear voice was necessary for the Accused's career as a Navy communications person. Janene stated that, other than alcohol consumption, there was no other known reason for the Accused to slur her speech. [ 49 ] Besides the Accused's slurring of words, Janene had in the past noted other common indices of the Accused's alcohol intoxication, namely difficulty retaining her balance and trouble remaining focused in her thought pattern.

Janene testified that the Accused had previously gone through periods of abstinence in her alcohol consumption and had then returned to periods of heavy consumption and binge drinking. [ 50 ] Janene testified that the in the course of the Overheard Telephone Discussions, the Accused was complaining to but not receiving sympathy about the Accused's complaints of the treatment she was receiving from Joe and Janene while living in the Family Residence.

According to Janene, the telephone discussions ended abruptly when the Grandmother hung up on the Accused because the Accused was drunk and was told by the Grandmother to call back when she was sober. [ 51 ] Janene admitted that during the day of the Events that she had not actually observed the Accused consuming any alcohol. She also confirmed that when she and the Accused were at very close quarters during the Assault Incident, that she did not detect the odour of liquor on the Accused.

In the course of her evidence about her observations that the Accused was slurring quite heavily when she was speaking, Janene placed it at a "seven on a scale of one to 10", where one was no slurring and 10 was very heavy slurring. Janene said that she could understand the Accused when she spoke because she had heard the Accused slurring like this before.

The Assault Incident [ 52 ] According to the evidence of Janene, it was following the termination of the Overheard Telephone Discussions between the Accused and the Grandmother that the Accused then returned to the Family Residence and proceeded up the interior stairs to the main level of the Family Residence. In a belligerent manner, the Accused called out to Janene words to the effect that Janene could expect a call from the Grandmother, and then called Janene a "fucking cunt".

Janene testified that this particular epithet used by the Accused towards her was particularly offensive to Janene. [ 53 ] Janene further testified that Joe and Child E. were in the kitchen area and Janene was proceeding along the upstairs hallway with the baby, Child W., then four and a half months old, in her arms when she encountered the Accused in the area at the top of the interior stairs. [ 54 ] Janene passed Child W. to Joe, who was within arms reach behind the Accused. Janene told the Accused not to speak to her like that in her house and in the presence of her children.

Janene says that at that point the Accused grabbed Janene by the left side of her hair with one hand and was holding up her other hand in a fist as if to punch her, at which point the Accused fell backwards on to the floor at the entry of the nursery, still clutching Janene's hair. Janene attempted to brace herself and break her fall, but fell on top of the Accused, during which time they were both tussling on the floor. The Accused continued to pull Janene by the hair with both hands on each side of her head and attempted unsuccessfully to punch Janene.

Although the Accused apparently landed no punches, she did tear Janene's shirt. [ 55 ] In continuing her description of the Assault Incident, Janene says that at this point Janene picked up and used the Accused's cellphone that had fallen beside the entangled parties, who were both still on the floor, and used it to smash the Accused on the left ear in order to get the Accused to release her grip on Janene's hair.

That manoeuvre was successful, the Accused released her grip, and Janene was able to get up while the Accused remained on the floor. [ 56 ] During the physical altercation, the Accused urinated in her own pants, leaving obvious wet marks on her own clothing and on the nursery room floor. Janene says the Accused has no known medical issue that would cause her to uncontrollably urinate upon herself, nor has she known the Accused to do this in the past. [ 57 ] In her version of the Assault Incident, Janene says that Joe returned from the master bedroom having put the children there.

He separated them, and the Accused managed to get to her feet with assistance from Joe. [ 58 ] Janene testified that, due to her level of intoxication, the Accused could not stand or walk properly at the time she was grabbing at Janene during the course of the physical altercation or after she got up from the floor. [ 59 ] Janene denied that she had consented to having her hair pulled or being hit by the Accused, and further denied that she had initiated the physical altercation, and further denied that there was any contact between herself and the Accused prior to the Accused grabbing her hair.

Janene did not recall if any of her hair was pulled out. Janene denied that she had been drinking before the altercation occurred. The Impaired Driving Incident [ 60 ] Janene called 9-1-1 to report the Assault Incident. In the course of doing so, and within 10 minutes of the physical altercation, Janene observed the Accused moving towards and then saw her climb into the KIA on the driver's side, start the car, proceed down the driveway, and then the KIA proceeded along the public roadway. [ 61 ] Janene further testified that she observed the Accused stumbling towards the KIA and steadying herself against it.

Janene was nervous, concerned, and upset about the Accused driving while impaired, stemming from a previous family death involving impaired

driving. Accordingly, she reported it in her 9-1-1 call. Evidence of Joseph Walker Joe's Personal Circumstances [ 62 ] In response to a question put to him in cross-examination about whether his wife was aggressive, he replied "not really", and then went on to say that he had "never seen her attack someone, including me". He stated he was not fearful of Janene. [ 63 ] He did confirm that he does not communicate with his own parents, nor have they seen their children, because of Janene's estrangement with them.

Joe's Observations of the Accused's Intoxication [ 64 ] Joe testified to his own significant life experience around the consumption of alcohol and being with other individuals who had consumed or over-consumed alcohol, and particularly while he was in the Navy. Those experiences informed his ability to detect, by way of observation, persons being in a state of alcohol intoxication. [ 65 ] Joe has known the Accused for approximately 10 years and has observed her habit of heavy drinking, including multiple occasions on which the Accused drank until there was no alcohol left.

He observed this type of behaviour 10 or more times over the years. Joe indicated that when Accused first moved into the Family Residence, they generally were a "non-drinking family". The Accused bought alcohol on a weekly basis, but usually made her drinks and took them downstairs to her bedroom for consumption; she did not necessarily drink in the presence of Joe or Janene.

He described it as the Accused keeping her drinking "low key", but noted that her drinking had increased over time. [ 66 ] He did observe that once every two months, that the Accused would go out and drink in the woods by herself, usually when her money was running out, and she then returned home having driven while inebriated. [ 67 ] Joe testified that following his text communication to the Accused, and his invitation for her to return to the Family Residence to "hang out" with him, she did so within about 30 minutes. That timeframe was calculated from the original time of departure in the KIA.

Joe conceded on cross-examination that he may have used the term "the psycho" in his text with reference to Janene, but only did so as an enticement to get the Accused to return. [ 68 ] He was continuing to work in the garage painting some cabinets. He observed, upon her return, that the Accused brought with her a large bag from the BC Liquor Store in Sooke, and noted at the top of the bag was a two-litre bottle of purple-coloured cider.

There were also other items in the bag, which he could not see, but presumed to be alcohol products. [ 69 ] The Accused and Joe spoke for about 45 minutes following the Accused's return. The Accused wanted to speak to him about her anger with Janene arising out of the earlier argument with her. He observed that the Accused was upset and talkative. He successfully managed to change the subject to calm down the Accused. [ 70 ] He also noted that when she had returned to the Family Residence, the Accused also had with her a disposable cup from a local drive-in.

Joe stated that the Accused told him that she had obtained some mix for her drink from that drive-in. She continued to drink from the disposable cup as they chatted in the garage for 45 minutes. Joe was uncertain as to whether he ever observed the Accused pour any alcohol into that cup and also indicated that he never looked into the disposal cup, nor did he ever smell any liquor from it. He stated that the odour of the paint that he was applying was strong and masked other smells.

The Accused left the garage and went to her room to watch Netflix. [ 71 ] After completing his painting project for the day and after a couple of hours, Joe went into the Accused's bedroom and observed her lying on the bed with Child E. watching Netflix, still holding the disposable cup. Joe departed and took Child E. to the backyard to play. [ 72 ] During his interaction with the Accused in the garage, Joe did not detect that the Accused was overly inebriated, she was making sense, and she was not slurring her words. He did not detect the smell of liquor on her.

He confirmed that he consumed about four beers over a period of some four hours, while he was both talking to the Accused and continuing his work in the garage. [ 73 ] The Accused came out on the back deck while Joe and Child E. were in the backyard and made a "snide" comment about Janene ignoring Child W. and leaving Child W. to cry, and then returned inside after laughing off an indiscernible background remark made by Janene in response. Joe assumed that the Accused returned to her room.

Joe returned inside the house to attend to childcare responsibilities with Child E. [ 74 ] The Accused then returned outside to the designated smoking area, at which point the Overheard Telephone Discussions occurred, during which time Joe overheard the Accused boisterously talking on the phone in a loud fashion with "words slurred", rambling in thought and lacking in meaning. Joe believed that the Accused was talking to Merissa. [ 75 ] He thought at the time it was amusing that the Accused was so intoxicated and attempting to carry on a telephone discussion.

He summoned Janene to listen to part of the discussion. It was at that point he realized how heavily intoxicated the Accused had become. He testified that there was "quite a bit of slurring" of her words and beyond her normal loudness and talkativeness when she was drinking alcohol. Joe testified that the Accused did not slur her words when she was not drinking nor intoxicated. In his evidence, Joe indicated that during the course of the Events, it was the most intoxicated he had ever observed the Accused.

After hearing part of the Overheard Telephone Discussions, he went to attend to Child E. and prepare him for bed. [ 76 ] Joe stated that during the day of the Events, he did not detect the smell of liquor on her, but did note that generally the smell of tobacco was the prevalent odour on her.

[ 77 ] The next day, following the Events, Joe found an empty "mickey" bottle of rum, which he concluded had been mixed in the disposable cup, and an empty two-litre bottle of the purple cider in Accused's downstairs bedroom, which was usually kept by her in an immaculate fashion. He also found in her bedroom an upright stemless wine glass from the kitchen, which was sticky, and also a sticky patch on the downstairs hallway at the entrance of the Accused's bedroom, which he assumed to be spilled cider.

Joe detected the smell of liquor in the form of a fruity alcoholic beverage in the downstairs area. [ 78 ] When he picked up the impounded KIA following the alleged Impaired Driving Incident early the next morning, he found the remnants of a plastic-ringed six-pack of beer with two unopened cans, on the passenger side, and one half-consumed open beer in the console. He did not locate the other beer cans. The Assault Incident [ 79 ] Joe testified that he and Janene were upstairs preparing the children for bed.

Joe was dealing with Child E. and Janene was attempting to get Child W. asleep in the nursery. [ 80 ] Joe heard the Accused coming up the stairs and shouting something that ended in the word "cunt". Joe denied that it was Janene who first used that word in the verbal exchanges. Joe moved towards the stairs, at which point Janene exited the nursery room with Child W. and moved over to the stairs, where she and the Accused met.

A brief verbal exchange occurred between them in which Janene was asking the Accused "what's wrong with you?" and saying "don't speak to me like that" as she passed Child W. to Joe. [ 81 ] He described that immediately at that point the Accused "drunkenly lunged at Janene and grabbed her", such that she made contact with Janene near the area of the throat and chest, causing them to come together, and then the Accused reached up and grabbed Janene's hair with her hand, and they both instantaneously fell to the floor, such that Janene ended up on top of the Accused.

The Accused continued to grab and hold Janene's hair as they continued to struggle. [ 82 ] Joe testified that he was "caught off guard" as he stood there holding Child W., and then was more shocked when he realized that Child E. was present and observing this physical altercation. [ 83 ] He moved the children into the master bedroom and ran back to observe that Janene had extricated herself from the Accused and the parties were disengaged, with Janene now standing above the Accused at a distance of some four or five feet apart. [ 84 ] The Accused remained sprawled on the floor of the nursery.

Joe helped the Accused up, noting that she was not steady on her feet, which he attributed to her level of intoxication and an adrenaline rush. He indicated to Janene that they should call the police, to which Janene indicated no, "she is wasted". [ 85 ] Joe then escorted the Accused downstairs to her bedroom, where he told her to go to sleep and not to come back upstairs, that she was drunk, and that if she needed something, to text him. He then assisted the Accused by bring her a role of towelling to clean herself up, having urinated herself in the course of the altercation.

The Uttering Incident [ 86 ] The Accused continued in an upset manner to speak to Joe, but appeared to calm herself for a short period of time and then got more worked up, agitated and angry, both at him and at Janene, and was venting at Joe. [ 87 ] As Joe was departing from the Accused's bedroom, the Accused swore at him, telling him to get out of her room.

At that point, Joe left the room and was approaching the stairs a short distance away, when he clearly heard her say words along the lines, with respect to Janene, as follows: "I should stab her the next night while she is asleep" or similar words to the effect, "I should stab her in the neck tonight while she is asleep." [ 88 ] He agreed that he did not memorize the exact words that were used by the Accused in the utterance. [ 89 ] Joe found these threating words to be "quite shocking".

In his further evidence, he stated that while she was venting, he was concerned about what she had "surprisingly already done" by way of the assault and, given that she was very drunk, he was concerned that the Accused was in fact capable of doing this threatened action, stating it was not something he would normally expect of the Accused. He characterized it as "being definitely uncomfortable". In response to a question from Crown Counsel about whether the Accused was joking when she made the utterance, he responded "not at all". [ 90 ] He reported those utterances to Janene.

They again started to discuss placing a call to 9-1-1 because the Accused was not going back to sleep. [ 91 ] Shortly thereafter, the Accused returned upstairs, making a loud ruckus as she was attempting to find her cat.

She returned downstairs and then once again came upstairs and continued to make a loud ruckus, purportedly in an attempt to find her cat. [ 92 ] The continuing disruptive behaviour on the part of the Accused and the fact that there were two young children present in the house, who had both been put down for sleep, was in Joe's words "unacceptable" and the basis of their mutual decision to call 9-1-1. The Impaired Driving Incident [ 93 ] While Janene was in the process of making the 9-1-1 call, they overheard the garage door opening.

From their master bedroom window, they observed the Accused moving towards the KIA, opening it, throwing things out of it, returning to the house briefly, and then going back to the vehicle. Joe described her as stumbling and "too intoxicated to walk, much less drive". [ 94 ] He then observed her depart from the Family Residence, drive down the driveway and onto the public roadway, and continue to motor away. The level of her intoxication made reporting it to the police more urgent. He stated that he was "terrified" about her level of

intoxication and about the safety of other drivers on the roads. That was the last that Joe saw of the Accused that day. Evidence of Constable Jason Messenger [ 95 ] Constable Messenger is a general duty constable with approximately three years of police experience and has conducted 40 to 50 impaired driving investigations. In his police duties, he has had very regular contact with persons impaired by alcohol.

These experiences informed his ability to detect, by way of observation, persons who were in a state of alcohol intoxication and to accurately assess when he believes an individual may be an impaired driver. [ 96 ] He conducted the police investigation surrounding the Impaired Driving Incident, but it was limited in scope because of elapsed time of some 80 minutes from the time of the 9-1-1 report until the time he found the Accused.

Therefore, as I understand it, Constable Messenger relied on his personal observations of the Accused without the aid of an Approved Screening Device or the administering of a breathalyzer test in determining that the Accused was impaired by alcohol. [ 97 ] He was dispatched on the evening of the Events at approximately 9 p.m. and arrived at the Family Residence at approximately 9:20 p.m. He spoke to Janene and Joe for a relatively brief period of time of between 10 to 15 minutes.

He assessed both of them as appearing sober. [ 98 ] As a result of the report from Janene and Joe of the Accused being impaired and driving a motor vehicle, he commenced a search for the KIA and located it a couple of kilometres up the hill at approximately 10:20 p.m. It was in a cul-de-sac in the area where a new residential development was taking place. [ 99 ] As noted above, he then located the Accused approximately 20 to 30 feet away from the KIA, dressed inappropriately for the outside temperature, in light clothing, and noting that she was "very still" and "face down".

There was no response from the Accused to his announcement to her of his presence and that he was a police officer. She was cold to the touch and he was concerned that she had died. [ 100 ] The Accused finally did start to rouse from what Constable Messenger believed to be unconsciousness caused by alcohol over-consumption; she did respond verbally, but her communication was "unclear", and was not directed at nor responsive to the questions being asked of her by Constable Messenger. He noted that she was slurring the pronunciation of her words. He noted a strong odour of liquor coming from the Accused.

In his opinion, it was clear that the Accused had driven to this location, and it was Constable Messenger's view that, because of the high level of intoxication, she was incapable of driving and was impaired by alcohol. [ 101 ] When he spoke to the Accused, she told him that she had fallen and hit her head. Constable Messenger observed a bleeding gash on the Accused's head, which was inspected by the ambulance paramedics upon their arrival. As noted above, it was apparently not necessary to take to the Accused to the hospital.

Evidence of the Accused Her Personal Circumstances [ 102 ] The Accused testified about her difficult early life, becoming pregnant when she was 23, being without support from either of her parents, including the Grandmother. She testified about the constant interference, lack of support, and lack of respect she received from the Grandmother as a young person and thereafter. She testified that she telephoned her own mother (being the Grandmother) to tell her she "hated" her. [ 103 ] Prior to getting pregnant, the Accused completed her formal education in 1983 as a legal stenographer.

She obtained a clerical job with a union, joined the Naval Reserve in 2005, and then approximately a year later went full-time with the Navy; her naval job required her to have a "top level of security clearance". She had a heart attack in 2014, remained on medical leave, and then obtained a medical release in May 2017.

She is currently working as a cashier in a large hardware and general merchandise chain store in the Comox Valley. [ 104 ] She testified that she has formal training in critical-incident stress matters, volunteers with an RCMP victim services organization, and has formal training in dispute resolution. She says that she has attempted to use these skills in the past when dealing with Janene, and in an attempt to defuse the conflict and tension between them. [ 105 ] The Accused believes that she has "over indulged" Janene, paying for her university education.

She characterizes Janene as "not being an easy person" and as having significant health issues. [ 106 ] The Accused testified that she was encouraged and induced by Joe to move into the Family Residence to assist in the care of Child E., due to Joe's concerns about Janene's ability to do so, and his concerns of leaving her alone with children. She testified at some length and very critically about certain aspects of Janene's parenting abilities, including: her lack of attention to domestic matters, sleeping in late during the day, and her lack of attention to the care of children.

The Accused suggested that this placed a significant burden upon her, for which she received no acknowledgement or recognition from Janene, or for that matter from Joe, or about her significant contributions to the care of the children. [ 107 ] Since the Events, she has had no contact with those grandchildren, whom she says she misses very much, and she is regretful that her relationship with her daughter is at an end.

A theme of her evidence is the suggestion that Janene and Joe's police reports and evidence about the Events are part of a general pattern to alienate both paternal and maternal family members. [ 108 ] In her evidence, she recounted some of the preceding happenings on the day of the Events, but did admit that "the day is fuzzy to me".

She stated that there were a lot of things taking place in her life, that "the pressure on me was unbearable", and she could not "cope with it." She testified that the pressures flowed from the interfamily disputes over the Grandmother's birthday party, about Merrisa, and also from the Accused's own grief resulting from the recent death of a close friend.

[ 109 ] She stated that on the days leading up to and on the day of the Events, Janene was being "relentless" about the issue of Merrisa attending the Grandmother's birthday party in Cranbrook, and Janene was in direct online contact about it with Merrisa, which in turn upset Merrisa, who then contacted the Accused. [ 110 ] The Accused testified that around the time of Joe and Janene's wedding (which I take from the whole of the evidence to be about 10 to 11 years ago), she was "uninvited" from that wedding, which led her to getting "really drunk" on rum.

It then necessitated her son Jordan, who did not possess a driver's licence, to drive her home, and in the course of doing so, the vehicle was stopped by the police. The Accused switched seats with Jordan and the Accused lied to the police and said she was driving. That apparently resulted in her receiving an impaired driving, over .08 driving criminal conviction. [ 111 ] The Accused testified that that she is prone to "jumble her words a lot" in her "personal life", which I take it to mean is in her personal conversations, and in contrast to when she was fulfilling her military communication duties.

I understand that this information was offered to rebut the evidence about the Accused slurring when she is intoxicated. I did not observe the Accused slurring any words or jumbling her words during her testimony in Court. The Accused's Level of Intoxication [ 112 ] The Accused testified about her drinking habits. On one hand, she suggested nobody in the Family Residence drank to get drunk, and that she was a moderate drinker, drinking a couple of days per week and only consuming two to three drinks at a time day, usually rum and coke.

However, she conceded that when she was younger and at present time, she occasionally uses alcohol as a "coping mechanism", but it is not often. She then went on to describe the numerous stresses in her life that she has faced and presently faces, including in her relationship with her family. She again acknowledged that she uses alcohol to help her cope, but says she cannot drink now like she used to when in her 20s and 30s.

She testified that her bail conditions prohibit her from consuming alcohol, but that it has not been a problem for her to comply. [ 113 ] She agrees that when she was in the Navy for 12 years, she drank to excess, but indicating that she would have a recollection of what occurred the previous night when she was drinking, although conceding that her memory may on occasion be "a little fuzzy" but she did not recall having blackouts from alcohol consumption. [ 114 ] She denied that she ever got drunk when she was residing at the Family Residence for over a year and a half, and contended that Joe and Janene were exaggerating about her use and consumption of alcohol.

She stated that Joe was the heavy drinker in the household and would drink 24 beer over the course of a weekend, and on occasion he would become loud and somewhat boisterous, but not out of control, because Janene did not like him to drink.

She also testified that, on occasions, she had caught Janene secretly drinking alcohol. [ 115 ] The Accused testified, having left the Family Residence earlier on the day of the Events, that she drove into Sooke to a drive-in to get a meal, went to a local park to eat it, purchased a six-pack of beer (but which she left in the KIA), and also bought a two-litre bottle of cider, which she suggested was low alcohol at five to seven percent. She denied purchasing any hard liquor.

She testified that the six-pack of beer was for Joe's consumption, but she did not recall that he had asked her to do that for him. [ 116 ] She testified that what was contained in the disposable drive-in container was root beer, and that there was no alcohol in it. I understand her to say that she brought that two-litre bottle of cider into the Family Residence. She later testified that she "doubted" she had the cider in her room the night of the Assault Incident, and further that she did not usually keep alcohol in her room.

She did testify about drinking a "cooler" or "coolers" on the day of the Events, which I take to mean the cider beverage. She also testified that she had a beer with Joe in the garage. [ 117 ] She further testified that she only had consumed one glass of cider that day prior to the Assault Incident.

She later stated that she did not think she would have consumed more than three or four drinks of the cider, but could neither confirm nor deny that, noting that it would be a lot of cider for her to drink because of the amount of sugar. [ 118 ] She further testified that she consumed three or four beers, "but not fast", and after she had driven away the second time from the Family Residence, and following the Assault Incident. [ 119 ] In cross-examination, she stated that she did not know how many beers she had consumed while she was alone at the top of the hill after departing from the Family Residence following the Assault Incident.

She then suggested that she "chugged" the beer (that is very quickly consumed it), and then suggested it was possible that she did not drink the beers, but presumed she did because everyone said she drank the beers, including the police officer. She concluded that she "had zero recollection" of drinking the beers. [ 120 ] Again, she denied that she was a heavy drinker, as testified to by Joe and Janene. She denied that she ever went drinking in the woods by herself, stating that she would be fearful of animals and in particular bears.

However, she then testified how she had driven away from the Family Residence in order to think and contemplate at the top of the new development, and in aid of that took the purchased six-pack of beer with her to drink. The Assault Incident [ 121 ] The Accused says that in the earlier part of the day of the Events, she became upset by Janene's relentless and continuing pressuring of her and Merrisa to change the plans, and for Merrisa to attend the Grandmother's birthday party in Cranbrook.

She needed her “own space”, and hence got the KIA car keys and drove to a lake near Sooke, but felt uncomfortable that there could be bears there, so she went into the downtown area of Sooke to the drive-in for a pick-up meal, which she took to a local spit located in a nearby park. [ 122 ] She received the text from Joe inviting her back to the Family Residence to have a drink with him.

Then she says she went to the liquor store to make the purchases, and returned to the Family Residence and spoke to Joe in the garage for a period of time, which she placed at between 4 p.m. and 6 p.m. [ 123 ] She stated that at some point she left the garage and went to her room, and was then later joined by Child E. to watch shows

together. She placed that time at between 6:30 and 7 p.m. Child E. was called and then taken upstairs by Joe for dinner with the rest of the family, and then Child E. returned downstairs to her room to watch television. She says that while she was in her room, Janene came into the Accused's room and again started to argue about Merrisa's attendance at the Grandmother's birthday party, which the Accused said she deflected by telling her to deal directly with Merrisa. At that point, she says that she went out to smoke and she telephoned Merrisa, with whom she had been in a text exchange.

She believes this to be the Overheard Telephone Discussions. [ 124 ] At around 8:30 p.m. and 9 p.m., Janene called for Child E. to come upstairs to prepare for bed. He was reluctant to go upstairs so, according to the Accused, she took Child E. upstairs and this also allowed her to use the main bathroom. It was at this point, while holding Child E.'s hand, that she encountered Janene. She denied using the vulgar term attributed to her and euphemistically described in the evidence as "the C word". [ 125 ] The Accused testified that it was Janene who assaulted her suddenly, without warning and without provocation.

She stated that Janene "ran out" of Janene's bedroom at the Accused and pulled the Accused to the floor by her hair, at which point the Accused lost control of her bladder, and then she was pushed down and thus urinated in her pants. [ 126 ] She testified that Janene was on top of her and continued to "whale upon" her, as she told Janene that Janene was hurting her and to stop. At that point, Joe arrived and said words to the effect, "what are you doing to your mom?" and pulled Janene off of the Accused.

In cross-examination she also described it as Janene "beat the crap out of me with my own cellphone" and thereby broke the screen of it.

Janene rolled off, at which point the Accused says she "jumped up" and then she "ran" down the stairs to change her urine-soaked clothes and to change into pyjamas, being the closest and most convenient clothing at hand. [ 127 ] She therefore denied the version of the Assault Incident testified to by Joe and Janene. [ 128 ] She testified that she was uncertain about the entire timeline, because she was basing it on her recollection of Child E.'s bedtime, which is usually later than the timeframe that she adopted, and based upon the evidence of Joe and Janene.

The Uttering Incident [ 129 ] The Accused says that she and Joe were having a drink in the garage, which she put at some time between 4 p.m. and 6 p.m. and before dinner time, during which time the two of the them were talking.

Joe was providing her advice about how to handle the dispute over the Grandmother's birthday celebration, suggesting that the Accused should "give in" to Janene's demands, in order for Janene not to take their dispute to the "next level". [ 130 ] The Accused said that at this point, while in the garage, she responded to this advice in a "humorous manner" and in an "outrageous" fashion, by saying to the effect that this was the sort of thing that made her want to "stab somebody in the neck".

The Accused said that this remark was in keeping and consistent with what she described as the frequent and constant "death threatening" exchanges between Joe and Janene, calling it "gallows humour", and that there were no actual threats being made in those exchanges. She attributed the term "death threatening" in this context to one coined by Joe. [ 131 ] The Accused stated her remark was not directed at stabbing or hurting Janene, and that both she and Joe laughed at the remark and Joe did not say anything further about it.

She did concede, in the context what was happening on the day of Events, that perhaps her remark was not taken as being "gallows humour" on that occasion. [ 132 ] She testified that her remark was not intended to connote that any harm would come to her daughter, Janene, and it was not a serious threat to her. [ 133 ] According to the Accused, all of this occurred prior to the Assault Incident and not following it, as testified to by Joe.

The Impaired Driving Incident [ 134 ] The Accused testified that as soon as she went downstairs after the Assault Incident, that she then located her large 30-pound cat, Sylvester, and carried the cat with difficulty to the KIA, parked at the top of the steep Driveway and placed it into the vehicle. She indicated that weight of the cat and the steepness of the Driveway made her unsteady on her feet as she approached the KIA. [ 135 ] She agrees that it was around 9 p.m. (but expressed some uncertainty) that she entered the car and then drove away from the Family Residence.

She stated that she was "in complete shock" from the Assault Incident and was crying hysterically when she stopped the KIA at the construction site up the hill from the Family Residence and grabbed the six-pack of beer from the vehicle and climbed over some large rocks away from the KIA. [ 136 ] She described that she was fearful about where she was going to go to reside, describing it as "ruminating" about her situation. In the course of her ruminations, she was sitting outside of the KIA, on a rock, consuming beer, smoking her cigarettes, and looking at the view.

She then made her way back to the KIA, to perhaps pick up her ringing cellphone, when she slipped and fell, and then described it as "I must have cracked my head." In cross-examination, she conceded that she lacked a clear recall about all of this, stating that she recalled the wind on her face and feeling "so low". She did not recall falling down. [ 137 ] The Accused said that the next thing she remembers is having an "out of body experience" and hearing a "man calling my name". She woke up in the ambulance and discovered she had a "big gouge" in her head, later described as a deep cut above her eyebrow.

The ambulance paramedics examined her and bandaged her head with a butterfly bandage. She testified that she wanted to go to the hospital, but declined because she thought she did not have any healthcare coverage in place.

Again she was "fuzzy" about the sequence of events and stated perhaps it was her own "confused thinking" that led the ambulance paramedic to tell the police officer she did not want to go to the hospital, and hence she was taken to the Sooke RCMP detachment by the police officer. [ 138 ] She denied that she was drunk and stated that she must have sustained a head injury which caused her the condition that was taken by the attending police officer to be drunkenness. She stated that she told the police officer that she was not drunk. She says that

she had "zero recollection" of drinking the beers and was not hung over the next day, but felt in pain. She says that she has nowconvinced herself she consumed the beer, notwithstanding her actual lack of recall, because she cannot account for the six beers. [139] She also stated that while she was ruminating, she was not thinking about encountering a bear in the area, but she was sittingoutside, notwithstanding that she knew that there had been a bear sighting in that area, stating that her lack of concern was tied in withhow "low" she felt. It was not a priority for her.

Presumption of Innocence [140] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs, then and onlythen can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [141] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.

Reasonable doubt is adoubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty, since that would be animpossibly high standard. [142] The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

In short, if,based upon the evidence before the court, the finder of fact is sure the accused committed the offence, then the finder of fact shouldconvict, since this demonstrates that the finder of fact is satisfied of the accused's guilt beyond a reasonable doubt. (See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144.) The W.(D.) Formulation [143] I must instruct myself that in the trial of criminal matters, it is not a question of which witnesses' evidence or version of events Ibelieve, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond a reasonabledoubt. [144] Where there is evidence of an accused that raises a defence, as is the case in this matter, then I must further instruct myself and Imust apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742,found at paragraph 28: First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [145] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H, 2012 PECA 6, [2012]P.E.I.J. No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence takenas a whole raises a reasonable doubt (R. v. Ellis, 2006 PESCAD 25, at paragraph 18).

Proper application of the third step involvesmoving the focus from the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all theevidence) on the criteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden ofbringing evidence that can prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paragraphs 28-31). The SupremeCourt of Canada recently stated in R. v.

J.H.S., 2008 SCC 30 , at paragraph 8, that a series of decisions has affirmed andreaffirmed that where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment ofcredibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2, at paragraph 7). [146] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J. No. 2735, adds afourth step to the W.(D.) analysis, namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood J.A. (as he then was) suggests thatlogically this ought to be second in order in the W.(D.) analysis. [147] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) Assessing Credibility and Reliability of Witnesses [148] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility and thereliability of the witnesses who provided this conflicting evidence. In doing so, I must weigh all the evidence. In so weighing theevidence, I may reject or accept some or all of the witness's testimony, after having taken into account a multitude of factors which

include, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, andinternal or external consistency. [149] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [150] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another.(See R. v. Jackson, 2007 BCSC 636; see also R. v.

Mann, [2010] A.J. No. 1094.) The Difference Between Credibility and Reliability [151] As noted above, I must have regard to the credibility and to the reliability of each witness's evidence. In R. v. C.(H.), 2009ONCA 56 , Watt J.A. explained the difference between credibility and reliability, at paragraph 41: [41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of thewitness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). Factors to be Taken into Account When Assessing a Witness's Evidence [152] There are many factors to take into account when assessing a witness's evidence, some of which are: 1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2. Did the witness have an interest in the outcome of the case? 3.

Did the witness have a good memory about the event? Did any inability to remember seem genuine or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw or are they adding in details based on othersources? 5. Was the testimony of the witness reasonable and consistent? Was the witness's evidence consistent with the other evidence inthe case? 6. Do any of the inconsistencies in the witness's evidence make their testimony more or less believable and reliable? Is theinconsistency about something important, or a minor detail? 7.

Was the witness's evidence plausible? (See R. v. Shields, 2017 BCPC 395 , [2017] B.C.J. No. 2608; 2017 BCPC 395 at paragraph 60.) Assessing the Credibility and the Reliability of Witnesses [153] In assessing the credibility and reliability of those witnesses who have provided the conflicting evidence about the allegedoffences, the testimony of each of the witnesses can be considered from three perspectives:

a) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying;

b) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [154] In the case of R. v.

Cuhna, 2015 BCPC 60 at paragraphs 5 and 6, the Honourable Judge Merrick provides a useful review ofthese factors to be considered when assessing the testimony of a witness from these three perspectives: Truthfulness [155] Relevant factors for truthfulness include: previous inconsistent statements or occasions on which the witness has beenuntruthful; inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with thetestimony of the witness and the attitude and the demeanour of the witness. [156] However, when considering demeanour, it is important to consider all the possible explanations for the witness's attitude, and tobe sensitive to individual and cultural factors that may affect demeanour.

Objectivity [ 157 ] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness's expectations, the assumption of unproven facts, or by subsequent events.

Accuracy [ 158 ] Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period of observation and the circumstances of the witness's observations. [ 159 ] The reasons for recalling an event and the length of time between witnessing an event and providing testimony about it may affect the accuracy of the witness's testimony and hence its reliability. Some witnesses may have difficulty communicating their evidence clearly, due to factors such as nervousness.

The Crown's Position and Submissions [ 160 ] Crown submits that the W.(D.) analysis is applicable to this case.

Crown submits that it has discharged its evidentiary burden and proven each of the three alleged offences beyond a reasonable doubt. [ 161 ] In its submission, Crown specifically relies upon the evidence of Janene and Joe and Constable Messenger, submitting that such evidence is internally and externally consistent with the whole of the Crown's evidence and even with some of the evidence adduced by the Accused on her own behalf. [ 162 ] Hence, the Crown submits that this evidence provided by the Crown witnesses should be found by this Court to be reliable and credible, and should be relied upon in convicting the Accused on all charges. [ 163 ] On the other hand, Crown contends that the evidence of the Accused should be rejected and found not to be credible nor reliable.

In that regard, Crown suggests that there is a lack of internal and external consistency, a lack of plausibility on important issues such as the amount of alcohol consumed by the Accused during the day of the Events, and numerous contradictions in the Accused's evidence, and a significant inability to recall or explain important occurrences. [ 164 ] Crown notes the attempts by the Accused to portray herself as an overall victim of Joe and Janene's behaviour towards her, which Crown says simply is not made out upon a consideration of the whole of the evidence. [ 165 ] Crown submits that no reasonable doubt is raised by the evidence of the Accused on any of the three offences and Crown's evidence negates any of those doubts such that they are not reasonable.

Hence, the Accused's version of the events giving rise to the three offences should be rejected and the Accused should be convicted on all three charges.

The Defence's Position and Submissions [ 166 ] Defence agrees that the W.(D.) analysis is applicable to this case. [ 167 ] Defence submits that Crown has failed to discharge its burden of proving all of the essential elements of each of the three offences, and that the Accused 's evidence, at the very least, raises a reasonable doubt for all of the three offences. [ 168 ] Defence goes on to say that the unhappy history of the family, and in particular between the Accused and Janene, and the circumstances comprising the Events do suggest that the Accused is in fact a victim of the dysfunctional family dynamic which continues to present day. [ 169 ] I understand it to be defence's suggestion that the poisoned dynamic continues in the form of the fabrication and exaggeration made by both Joe and Janene in their evidence at trial.

Thus, their evidence bears significant cautious treatment by the Court. [ 170 ] Defence then points to what it says is the "open and honest" answers that were provided by the Accused, even when they were unhelpful to her case.

Defence also concedes that at times the Accused had difficulty in her recall of certain aspects of the day of the Events. [ 171 ] Defence suggests that an important key to the whole of this case is that none of the Crown witnesses observed the Accused drinking liquor during the day of the Events, nor was the smell of liquor detected by Joe and Janene on the Accused. [ 172 ] Defence suggests that what was believed by Joe and Janene to be alcohol impairment on the part of the Accused was a combination of the Accused's emotional upset with the entirety of the situation, the residual of the shock of the attack by Janene upon the Accused, the steepness of the Driveway as she made her way to the KIA, and the fact that she was carrying a heavy cat to that vehicle with great difficulty. [ 173 ] Defence submits that the evidence proffered by the Accused that she consumed several beer after she had driven to the top of the subdivision and alighted from the KIA, and then fell and struck her head, such as to render herself unconscious, explains her behaviour and her condition, that was also taken by Constable Messenger to be over-consumption of alcohol. [ 174 ] On the issue of the Uttering Incident, Defence suggests that there was no intention on the part of the Accused to utter any threats to cause death or bodily harm to Janene, but rather this remark is all part of the "family game" of "death threatening", and in the Accused's version it occurred in a passing conversation with Joe prior to the Assault Incident. [ 175 ] Defence further submits that it was the belligerent and aggressive nature of Janene, and specifically her tremendous historical dislike of her mother and the ongoing dispute between the two of them, with respect to the Grandmother's birthday party, which was the trigger that caused Janene to commit the unprovoked assault upon the Accused, rather than the other way around.

[ 176 ] Therefore, defence submits an acquittal must be entered on all three charges. The Applicable Law Applicable Provisions of the Criminal Code [ 177 ]

Section 266 states that everyone who commits an assault is guilty on an indictable offence for a term not exceeding five years, or on an offence punishable on

summary conviction which is governed by s. 787. As noted above, Crown has proceeded summarily in this matter. [ 178 ] Other relevant provisions are found in s. 265 of the Criminal Code and s. 34 (Defence of Person) and s. 35 (Defence of Property). [ 179 ]

Section 265 provides in part as follows: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or . . .

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. [ 180 ] The defence of self-defence and defence of property have not been raised in this matter, either directly by the parties or by the evidence. [ 181 ] Section 253(1) (

a) of the Criminal Code provides as follows: Operation while impaired 253

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug . . . [ 182 ]

Section 264.1(1) of the Criminal Code provides as follows: Uttering threats 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; (

b) to burn, destroy or damage real or personal property; or (

c) to kill, poison or injure an animal or bird that is the property of any person.

(2) Every one who commits an offence under paragraph (1)(

a) is guilty of (

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

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. Analysis General Observations of the Accused, Janene, and Joe as Witnesses

[183] All three civilian witnesses have the challenge of testifying about the Events which took place almost over a year ago at the startof the trial and almost a year and a half at its conclusion, and in circumstances which may be described as a highly charged, emotionalenvironment. [184] I must take into account that any alleged assaultive behaviour and any applications of force by either of them in the AssaultIncident likely occurred in a very condensed timeframe. [185] The opposite timeframe is apparent, in that there have been longstanding historical troubles in the relationship between theAccused and Janene that have spanned over years. [186] These are all important factors when considering the reliability of their evidence, since the passage of time tends to causememories to fade and past memories of situations get intermingled with each other.

All of this tends to erode the quality of the evidence,as does the whole of the circumstances surrounding the Events in question. Demeanour [187] Trial judges should not place too much emphasis on how a witness behaves while giving evidence when assessing theircredibility. (See R. v. Jeng, 2004 BCCA 464 , at paragraph 54.) [188] In court, witnesses are required to speak about difficult events in a very foreign and public environment. They are often nervousand feel significant pressure when undergoing a prolonged cross-examination. (See R. v.

Shields, supra, at paragraph 74.) Conclusions About the Witnesses [189] However, after allowing for these considerations, and having applied the various tests and considerations when assessing theevidence of the witnesses, and in particular their reliability and credibility, all of which tests and considerations are described at theoutset of these reasons, I have reached the following conclusions about the three principal witnesses. Conclusions about the Accused [190] The Accused did not present well as a witness.

There were aspects of her evidence which were credible and believable, and insome cases she did make admissions that were not helpful to her. One of the examples is her alcohol consumption habits and her relianceupon it as a coping mechanism. [191] However, in this case, I am of the view that she has completely minimized the amount of alcohol that she consumed on the dayof the Events.

I come to this conclusion based upon the observations of her behaviour made not only by Joe and Janene and by ConstableMessenger, but also upon the explanations that she attempted to provide about her recollection of her alcohol consumption on that date.She simply was unable to provide anything approaching a coherent and consistent answer about how much she had to drink. The wholeof the evidence convinces me that she was continuing to drink heavily after she returned to the Family Residence at the request of Joemade by way of text, such return likely between 3:30 and 4 p.m. on the day of the Events.

She became significantly intoxicated. [192] This level of significant intoxication impacts substantially on her credibility and the reliability of her evidence on a wide range ofthe circumstances forming part of the Events and her specific behaviour giving rise to the three criminal charges against her. [193] In addition, her level of significant intoxication clearly had an important impact upon the Accused's recall and her ability toprovide internally and externally consistent evidence on certain very important points.

It appears that the Accused has been able toreconstruct some of her timelines, for the most part accurately, but in my view reliant upon the evidence of the Crown witnesses that sheheard. [194] Her level of intoxication was observed by Constable Messenger when he located her in a serious unconscious state. Given hisexperience in dealing with intoxicated individuals and the conclusions that he was able to reach about the Accused, in my view, there isno reliable or credible evidence provided by the Accused that would suggest that what she was suff

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