R. v. B.S.B. Date:, 2015 BCPC 272

Citation: R. v. B.S.B. Date: 20150623 2015 BCPC 0272 File No: 208522-1-K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. B.S.B. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: N. Melling Counsel for the Defendant: S.R. Chamberlain, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: April 17, 2015 Date of Judgment: June 23, 2015

[ 1 ] THE COURT : Let me begin by saying the burden on the Crown in these proceedings is to establish guilt beyond a reasonable doubt. It is not enough for the Crown to simply prove that an assault may have happened or probably happened; the burden is to prove their case beyond a reasonable doubt. [ 2 ] In many ways this is a sad story. Both of these people, the complainant and the accused, are highly-educated, very articulate people.

They have been married, sorry, I forget the exact date, but a number of years now and at the time of this incident they have a three-and-a-half-year-old daughter. [ 3 ] One January 6th of 2015 there was a discussion between them about dinner after he arrived home from work. Earlier that day she had had a discussion with the police about a pre-empt and she had been advised of certain options that were available to her. [ 4 ] An argument developed after he arrived home about dinner.

She thought their daughter should go to bed within the parameters of her regular routine, that including a bath beforehand and a snack, and she expressed her concern that going to a restaurant would interfere with that, and he then suggested that if she could not attend that he -- or I should say that he simply take their daughter to a restaurant. [ 5 ] She expressed some concern in her testimony that B.S.B. (Mr. B.) would take the daughter to India where he was born and raised. [ 6 ] On cross-examination she was challenged about her version of what happened.

She admitted that she had been suffering from depression, particularly since the birth of the child, and she was taking medication for that, and she had been encouraged by her psychiatrist during the counselling suggestions to make a report to the police, and the term "pre-empt" was put to her meaning the officers would just come to the home and assess the situation, see what was happening, and talk to her about her concerns. She also admitted that she had never been assaulted by the accused before.

Curiously, this discussion with the police took place the very same day that the 9-1-1 call was made subsequently. [ 7 ] She admits that she told the police that she was fearful that he was going to take their child, L., back to India, and that he was going to assault her even though he had not assaulted her before. Then she said he had assaulted her before, and there was some discussion back and forth as to whether or not that had happened. But in any event, she did admit that she had not said to the police that he had assaulted her prior to that.

Curiously, she could not recall what the police had told her in regards to her concerns about the child being taken to India; she had not told the police, or the police had not told her of reporting this to the Canadian Border Services and the steps that could be taken by counsel to get a restraining order.

As defence counsel has pointed out, after the complaint was made he had not seen the daughter up until April 17th, the first day of this hearing. [ 8 ] The Crown has argued that the complainant is a credible, reliable witness and the court should disbelieve the accused as he has denied that there was any stress in the relationship and says they have never had an argument and that the accused's version simply does not make any sense.

Those are my words; counsel put it more eloquently than I just have, but I was summarizing. [ 9 ] The defence has argued, in essence, that the complainant is not a reliable witness and that the accused's denials at the very least raise a reasonable doubt. [ 10 ] I agree with the Crown to a point. People do not normally call 9-1-1 to ask for advice on domestic and marital problems, and that there were some inconsistencies in the accused's evidence.

But in assessing the evidence of the accused as to whether or not there -- his denial that arguments had ever taken place in the past, I note two things: First of all, English is not the accused's first language; and secondly, when he denied there had ever been an argument, perhaps he was simply saying that there had never been a heated argument where people say hurtful things that are never forgotten. [ 11 ] In assessing the evidence of both these people, I have concluded that neither one of them have come before this court at their objective best, but given what happened subsequently, I have some serious reservations about the credibility of the evidence of Mrs.

B. The accused had to retain counsel and ultimately -- excuse me, I need to back up a bit. Right after this incident he was obviously on a no-contact order, but she subsequently obtained in Provincial Court a restraining order which prevented him from seeing his daughter. He then had to go to the Supreme Court and in May Mr.

Justice Weatherill made an order giving him weekend overnight access, and on the very first weekend that access, or this now-called "parenting time" was denied by her, something that strikes me as being very spiteful, something that strikes me that she has not been completely objective in this dispute between the parties. [ 12 ] I have heard the evidence of Mr. B. He has denied the assault. There were no physical injuries, which is understandable, I suppose, because it was not, in the grand scheme of things, the most serious assault in terms of the physical nature that has been described.

But given his denial, given the reasons that I have already stated as to my reservations about her evidence, at the very least I have a reasonable doubt. [ 13 ] The accused is entitled to the benefit of such doubt and the charge is dismissed. (REASONS FOR JUDGMENT CONCLUDED)