R. v. Evans Date:, 2017 BCPC 18

Citation: R. v. Evans Date: 20170112 2017BCPC18 File No: 20954-1-K Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RASANDRA EVANS EXCERPTS FROM PROCEEDINGS DECISION ON

SECTION 810 PEACE BOND APPLICATION OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: K. Gagnon (as agent for J.A. Dyck) Counsel for the Defendant: D. Markovitz Place of Hearing: Vancouver , B.C. Date of Hearing: December 13, 2016

Date of Judgment: January 12, 2017 Introduction [ 1 ] THE COURT: Mr. Evans is before the court on an application filed by the Crown pursuant to s. 810(1) (

a) of the Criminal Code . The Crown seeks a recognizance pursuant to s. 810 of the Criminal Code on the basis that the complainant, Mr. Evans' wife, Ms. Valentyna Zolotarova, has reasonable grounds to fear and does fear Mr. Evans will cause personal injury to her by virtue of an incident that occurred on or about February 1, 2016. [ 2 ] That incident involved a dispute/altercation between Mr. Evans and Ms. Zolotarova's mother, Iryna Sochynska, which led to Mr. Evans being arrested and charged with assault causing bodily harm.

On December 13, 2016, just before the hearing into this application, my colleague, Judge Gove, acquitted Mr. Evans of that charge. [ 3 ] In brief, the complainant, Ms. Zolotarova, asserts that the incident between Mr. Evans and her mother, Mr. Evans' subsequent acquittal, and other incidents which occurred between 2012 and 2015 give her reasonable grounds to fear Mr. Evans will cause her injury. [ 4 ] Mr. Evans does not admit that his wife, Ms. Zolotarova, has reasonable grounds to fear him. Moreover, he disagrees with Ms.

Zolotarova's allegations and her characterization of the issues/incidents that have arisen between them in the past. In fact, defence counsel suggested that Ms. Zolotarova is attempting to use the proceedings in this court as a vehicle to obtain full guardianship of their three children. [ 5 ] Given the stark differences between Mr. Evans and Ms. Zolotarova, the s. 810 application proceeded to a hearing. Evidence Presented at the Hearing [ 6 ] I heard from two witnesses at this hearing, namely, Ms. Zolotarova and Mr. Evans. [ 7 ] Ms. Zolotarova has lived in Canada since she was 11 years old.

In March 2009, she met Mr. Evans in Jamaica and they were married in Jamaica in May, 2009. For about one year, they lived in Abu Dhabi where Ms. Zolotarova was working. When she became pregnant, they both returned to Canada. They now have three sons. The eldest son was born in June 2010, the middle son in January 2012, and the youngest son in June 2014. [ 8 ] At the time of the February 1, 2016, incident which led to the assault charge against Mr. Evans, he, Ms. Zolotarova, their children, and Ms. Zolotarova's mother lived together in an apartment in Yaletown in Vancouver. My understanding is that Ms.

Zolotarova and Mr. Evans lived together with Ms. Zolotarova's mother since they returned to Vancouver from Abu Dhabi. [ 9 ] Ms. Zolotarova is 29 years old. She has a Bachelor of Arts in French and Spanish and a Master's degree in Education Technology. She works as a language teacher at an independent school. She is also the proprietor of a karate school which she opened in 2010. In addition to working as a language teacher, she teaches karate to children and adults two days a week. [ 10 ] Ms. Zolotarova has competed as a karate athlete and received several medals/awards.

She was on the Canadian Karate Team from 2003 to 2008. She participated at the national championship level during those years. After having her first two children, she competed again for about one year. She then decided to obtain certification to become a referee for the World Karate Federation. More recently, she decided to attempt to compete to make the Canadian Karate Team for the 2020 Olympics. Therefore, in 2016, she was training with the object of competing in karate for the 2020 Olympics. [ 11 ] The Crown called Ms. Zolotarova to testify about her relationship with Mr.

Evans and the events which led to the making of this s. 810 application. It appears that the incident which occurred on February 1, 2016, was the catalyst and the basis for this application. Accordingly, I begin by describing that incident. The February 1, 2016, Incident [ 12 ] On February 1, 2016, Ms. Zolotarova and her eldest son were going to a karate school in Langley. It was the day after the National Karate Championships which had been held in Vancouver. She and her son were going to a seminar which was to be given by a guest instructor. [ 13 ] While on their way to Langley, Ms.

Zolotarova received a telephone call from Mr. Evans. He was very upset. He was yelling. He told her that if she did not come home right away, he would call the police. When she asked him why, he suggested she should call her mother to find out. Ms. Zolotarova called and spoke to her mother. Ms. Zolotarova next saw her mother when her mother returned home from the hospital. Ms. Zolotarova learned from her mother that Mr. Evans had punched her. Ms. Zolotarova was not home when the incident occurred. However, she personally observed that her mother had a bruised nose and a very swollen hand. [ 14 ] Mr.

Evans was not at home when Ms. Zolotarova returned from Langley. He had been arrested. A police officer and a social worker were waiting for her. Mr. Evans was subsequently charged with assaulting Ms. Zolotarova's mother and causing her bodily harm. It appears he was released on bail with conditions. On the day that this application was heard, that is, December 13, 2016, Mr. Evans appeared before my colleague, Judge Gove, for a decision on the assault charge. Mr. Evans was acquitted of that charge. Other Incidents Recounted by Ms. Zolotarova [ 15 ] Ms. Zolotarova gave evidence about her relationship with Mr.

Evans. She said they separated on the day of the February 1, 2016, incident involving her mother. At that point, they had been married just under seven years. Ms. Zolotarova testified there was no

violence in the relationship in the first few years. However, after that, there were several instances of violence. First Incident of Violence, April 2012 [ 16 ] Ms. Zolotarova testified that in April 2012 she made a comment to Mr. Evans about a friend of hers who had gained a lot of weight after having a baby. According to Ms. Zolotarova, Mr. Evans was not particularly sympathetic. He suggested to her that if she was so worried about losing weight, perhaps she should be a man. [ 17 ] Ms. Zolotarova became upset and the situation escalated. She said Mr.

Evans told her being a mother was the worst thing that had happened to her. Ms. Zolotarova said Mr. Evans was in her face. She pushed him away with both hands. Mr. Evans leapt forward, pushed her, and grabbed her by the throat. She fell back and hit her head. Mr. Evans landed on top of her and, in her words, continued to strangle her. He held onto her neck. [ 18 ] Ms. Zolotarova said she was in shock. She had no reaction. She felt ashamed. She thought Mr. Evans was going to kill her. She felt she could do nothing. She felt frozen. At the time she thought, even if she managed to get out of Mr.

Evans' grip, what could she do? She was not prepared to kill her husband. However, according to Ms. Zolotarova, it seemed he was prepared to kill her. Mr. Evans finally let go. She said this incident occurred in front of their eldest son. [ 19 ] Immediately after this incident, Mr. Evans continued to lay on top of her. She claims she told him, "Honey, you know you almost killed me," or words to that effect. She asked him to get off her because she had to go teach a class, but he would not do so. She finally pushed him away and then Mr. Evans moved off her. She went to teach her class.

Her mother was at work and Ms. Zolotarova did not tell her about the incident. Ms. Zolotarova did not report the incident to the police. She said this was the first time anything like this had happened. She was very much in love with Mr. Evans. [ 20 ] Ms. Zolotarova did a Google search and found a local battered women's support service group. She went to that battered women's support group to ask a very specific question, namely, is there ever a time when a man tries to kill a woman, but never repeats it? Ms. Zolotarova said the advice she was given was that they could not give her any guarantees.

Usually, when there is violence, it is repeated. However, they could not say that it would not, not be repeated. Ms. Zolotarova maintained Mr. Evans tried to convince her it was her fault. Everything was always her fault. Mr. Evans did not apologize. [ 21 ] She said the battered women's group could not give her any guarantees, but told her usually such conduct is not repeated. Ms. Zolotarova made a decision to forgive Mr. Evans and give him another chance even though he did not apologize. At that point in time, she really believed in their marriage. Second Incident, Mexico, August 2013 [ 22 ] Ms.

Zolotarova said in August 2013 she and Mr. Evans were on vacation in Mexico with their two children. Her mother was with them, as well. They were all staying in the same room. She and Mr. Evans had an argument. She could not recall what the argument was about. At one point during the argument, Mr. Evans apparently grabbed her by the throat. However, when her mother turned around, Mr. Evans let her go. [ 23 ] Ms. Zolotarova did not report that incident to the police. She was afraid she did not have any proof and he would walk away with nothing and the abuse would continue. She said she was stupid.

She still hoped "a man like this" would not repeat his actions. She was hopeful and continued to give Mr. Evans another chance. Third Incident, Jamaica, December 2014 [ 24 ] Ms. Zolotarova and Mr. Evans went to Jamaica for a holiday in December 2014. Ms. Zolotarova said an incident occurred while they were in Jamaica. Ms. Zolotarova told Mr. Evans their youngest son, who was a baby at the time, should have a jacket on. She was worried the baby was cold. Mr. Evans said, "No". At that time, Mr. Evans was holding the baby in both arms. Ms. Zolotarova said Mr.

Evans moved his arms with the baby in them as if he were going to hit her. She was worried he might drop the baby so she left him alone. At that time, she told his mother about the incident of violence that occurred in April 2012 when Mr. Evans strangled her. Fourth Incident, Valentine's Day 2015 [ 25 ] Ms. Zolotarova said they had an argument on Valentine's Day 2015. Apparently, Mr. Evans was upset about discrimination in Canada and the rights of everyone. He was upset they were living close to Davie Street because, according to Ms. Zolotarova, he dislikes homosexuals. Ms. Zolotarova said Mr.

Evans wanted to leave their home in the middle of the night. She asked him not to leave. He pushed her out of the way as he was trying to leave. Ms. Zolotarova's mother saw this interaction and said she was going to call the police. [ 26 ] Mr. Evans called the police himself and told them there were people in the house who were not allowing him to leave. The police came to the house, but apparently Mr. Evans decided he did not want to leave. At that time, Ms. Zolotarova did not tell the police Mr. Evans had pushed her earlier that evening.

She explained she did not want her husband, the "love of my life," to have a criminal record for pushing her. Fifth Incident, Mexico, March 2015 [ 27 ] In March 2015, the entire family, including Ms. Zolotarova's mother, went to Mexico for a holiday. They booked two separate rooms. Ms. Zolotarova and Mr. Evans were in one room and her mother was in the other room. The children went back and forth between the two rooms. [ 28 ] On one occasion during that holiday, Ms. Zolotarova and Mr. Evans had an argument. The kids were in her mother's room. Ms. Zolotarova was upset because Mr.

Evans had picked coconuts earlier that day and shared them with everyone at the resort, but not with

his wife and children. She acknowledged it was something silly, but she said she told Mr. Evans it was not right that he forgot to share the coconuts with his children and her. [ 29 ] Mr. Evans told her she could not tell him what to do. He told her she was trying to control him. Ms. Zolotarova said Mr. Evans grabbed her by the throat. She screamed out. She called her mother right away and her mother came into their room. Mr. Evans let go and ran away. Ms. Zolotarova said Mr. Evans came back several hours later. Sixth Incident, June 2015 [ 30 ] Ms. Zolotarova said another incident occurred in the summer of 2015.

There was an occasion when Mr. Evans tried to challenge her to fight him. She said the incident of 2012 kept recurring as a subject of discussion. Mr. Evans never apologized for that incident. Ms. Zolotarova said Mr. Evans told her if he had wanted to kill her that day, he could have done so. He also told her she pushed his buttons. [ 31 ] Ms. Zolotarova told him she knew why he did it, namely, he was trying to make her afraid of him. Ms. Zolotarova said she decided from then on she was not going to be afraid. Ms. Zolotarova said Mr. Evans told her to go ahead and hit him. Her mother came into the area where Ms.

Zolotarova and Mr. Evans were having this exchange. [ 32 ] Ms. Zolotarova said her mother asked Mr. Evans what kind of man was he and why was he trying to fight with a woman. Ms. Zolotarova told her mother not to talk to him. She did not think her mother fully understood what Mr. Evans was capable of, but Ms. Zolotarova did. Ms. Zolotarova said Mr. Evans did not actually hit her that day. Instead, he tried to provoke her to hit him. Further Testimony [ 33 ] Ms. Zolotarova was asked to describe the state of her relationship with Mr. Evans between the June 2015 incident and the date of separation, February 1, 2016.

Ms. Zolotarova said, at that time, she was in the middle of working on her Master's degree which she had started in September 2014. Around that time, June 2015, Mr. Evans became immersed in conspiracy theories. He watched programs on his cellphone all the time. This made him angry towards her and all white people. [ 34 ] She was asked if there was anything else she wanted to say. She said there were so many things. There were a lot of irrational things. When they were in Jamaica, Mr. Evans told the taxi driver he wanted to bomb and shoot a government official.

He also said he wanted to kill their girlfriends, but also noted that they were not actually girlfriends because they were homosexual. [ 35 ] Ms. Zolotarova said Mr. Evans would also tell their children that President Obama is a bad man because he is a black man with a white heart. Mr. Evans also told his eldest son he should be cut in half so his mother could take the white part and Mr. Evans could take the black part. This was around Halloween. Mr. Evans repeated that comment many times. [ 36 ] Mr. Evans also threw out the children's toys when she was away at the karate championships.

He threw out books and toys she and her mother had bought for the children. Her mother told him not to do so. However, Mr. Evans threw out the children's version of the Bible, Disney products, and cartoon character-related items. [ 37 ] Ms. Zolotarova said Mr. Evans hit their eldest son on their second son's birthday. Their eldest son refused to put away toys her mother had given his brother for his birthday because the eldest son wanted to play. Mr. Evans hit him. Mr. Evans thought a submarine toy was violent and children should not be playing with submarines. [ 38 ] The Crown asked Ms.

Zolotarova whether, apart from the conflict between her and Mr. Evans, there were any other incidents of violence between that time period and the date of separation. Ms. Zolotarova responded there were not. [ 39 ] The Crown asked Ms. Zolotarova what other circumstances led her to fear Mr. Evans. Ms. Zolotarova said while she was in the presence of other people or with other people, she was not afraid, but she is afraid when she is alone. Ms. Zolotarova was asked why she feared Mr. Evans. Ms. Zolotarova said every time he had done something to her was when they were alone.

She knew what he was capable of after 2012. Before that, she did not understand what he meant when he had said he was a dangerous man. She thought it was just some Jamaican talk. [ 40 ] She was asked what she was afraid he might do to her. She said since that time, presumably referring to 2012, Mr. Evans told her he is prepared to kill people. She believes he is prepared to kill her. Moreover, there is the recent incident when he hit her mother. Ms.

Zolotarova said now that he has been found not guilty of the charge involving her mother, it reinforces his view that he can do anything he wants. [ 41 ] She does not know how to defend herself. She is not prepared to fight him to death. She acknowledged she is an athlete, but noted she does not attack someone who is not emotionally ready, "someone who loves you." She does not know what she would do and how she would protect herself. She believes Mr. Evans is prepared to fight her to death. She does not know why he stopped during the incident of 2012. He told her then he could have killed her if he had wanted to.

Ms. Zolotarova said she fears Mr. Evans might harm her physically because he has done it before. [ 42 ] His excuse the first time, referring presumably to the 2012 incident, was that she provoked it. For some time, she believed that. However, now she understands there was nothing she could have done to provoke his reaction. If he is allowed to see her, she does not know what he would do if he sees her doing things he does not approve of and there are a lot of things he does not approve of. [ 43 ] Ms. Zolotarova said the fact she has training and skills in karate does not give her any comfort.

As an athlete, she does not expect someone to attack her when she is not prepared. In karate competitions, one goes into an honest fight. However, a situation involving a relationship is different. Ms. Zolotarova said she competes against women in her class, not men, and not the man who is the father of her children. Going into an honest fight is very different from dealing with someone who is dangerous, dishonest, scheming, plotting, and unpredictable. Ms. Zolotarova did not name Mr. Evans, but clearly that is who she was describing.

[ 44 ] Ms. Zolotarova, at the time of the hearing, had not seen Mr. Evans for approximately 10 months. However, she believes "it" has escalated especially now. She said that, just looking at him, she could tell he has not changed. She maintained he was laughing and found the situation, presumably referring to the hearing, funny. [ 45 ] In cross-examination, she was asked about the effect of the passage of time on her fears. She acknowledged Mr. Evans had not had any contact with her whatsoever since February 2016. However, despite the no-contact provisions that have bound Mr. Evans, Ms.

Zolotarova said the passage of time has escalated her fears. [ 46 ] Ms. Zolotarova acknowledged Mr. Evans has not seen their children since February 2016. Ms. Zolotarova said he was under a restraining order. She provided the police 20 pages of history of Mr. Evans being violent with her and her children. She wants Mr. Evans to be a father who loves his children and does not hit them. [ 47 ] In cross-examination, she was also asked what she wants to see happen between Mr. Evans and the children. She said she wants him to be honest with the children.

She wants him to tell the children the truth about everything rather than pay a strange man to defend a lie. She said Mr. Evans did not admit the things that had happened. Therefore, she did not know how they could solve this situation. She also said she did not know what this had to do with why she feared him. [ 48 ] She volunteered that she had been asking him for years not to hit the children. He believes that physically disciplining children is acceptable. Additionally, she asked him for years to apologize for the 2012 incident when he strangled her. Ms. Zolotarova said Mr.

Evans told her he was not happy about it, but he did not regret it. [ 49 ] In cross-examination, Ms. Zolotarova was asked about an occasion when the police attended at her home in approximately August 2015. She acknowledged there was such an occasion, but she could not recall the exact date. At the time, she assumed that the police had been called by a neighbour. However, as a result of Mr. Evans' assault trial before Judge Gove, she learned from her mother that it was Mr. Evans who called the police on that occasion. [ 50 ] In cross-examination, Ms. Zolotarova explained on that occasion she was frustrated. Mr.

Evans had been upset for weeks because of the way her mother organized the fridge. On the other hand, her mother was also upset about how Mr. Evans organized the fridge. So when her mother told her on that occasion that Mr. Evans had not taken out the garbage as Ms. Zolotarova asked him to, Ms. Zolotarova began crying. She said she was tired of her husband and her mother disagreeing. They did not talk to one another and it always ended up being characterized as her fault. At that time, she was trying to do her best while at the same time looking after her three children and working on her Master's degree. Ms.

Zolotarova said on that occasion she had a breakdown. [ 51 ] Defence counsel asked Ms. Zolotarova about her interaction with the police on that occasion. He suggested she was rude to the police and asked them to leave. She did not believe that was the case. Ms. Zolotarova said she was frustrated and did not understand why the police were at her door. She asked the police officer about that. The officer told her that someone had called the police because they were too loud.

She said she did not understand why the police attended at her house just because she and her mother were having an emotional conversation. [ 52 ] Defence counsel suggested to Ms. Zolotarova that she could have told the police officer on that occasion that she was scared of Mr. Evans, but she did not do so. Ms. Zolotarova said she told the police officer she did not understand why the officer was upset at her. It seemed to her that was the case and she was confused and frustrated. Ms. Zolotarova told the officer she was not doing anything wrong and there was a man in the house who had abused her before. Ms.

Zolotarova said the officer responded that she needed to calm down. [ 53 ] She maintained the officer told her he was going to do everything in his power to take "this child" away because she was telling him there was previous domestic abuse in the household. Ms. Zolotarova said that response from the officer calmed her down and she stopped asking why the police were there. [ 54 ] Defence counsel pressed Ms. Zolotarova on this point. She maintained that was precisely what the police officer told her, namely, if there was domestic abuse, he would do everything in his power to take the children away.

She did not follow up on her concerns because she was afraid. She said the police officer also told her he thought he knew what the problem was and he thought it was her. That scared her. [ 55 ] She then added that one of the reasons she never told the police officer in the first place, referring to the situation with her husband, was because she was afraid that because of the relationship between her and her husband, the police would take the kids away from her and from him.

She acknowledged the police did not take the children away on that occasion. [ 56 ] During cross-examination about the August 2015 incident, Ms. Zolotarova testified she was having a breakdown that day after all the tension in her house for so long. When the police came, she assumed a neighbour had called them because she was crying too loud. She acknowledged that now it appears the police officer was naturally upset because she had asked him what he was doing at her house and who had called him. She now understands he was doing his job.

However, she said her situation should also be taken into account. [ 57 ] At that moment, while she was having a conversation with her mother, she was frustrated and having a nervous breakdown when suddenly she found a police officer at her door. At the same time, the man who had been abusing her did not get questioned. She added it was just like today, the day of the s. 810 hearing, when she is getting all the tough questions while Mr. Evans gets to enjoy the show. [ 58 ] In cross-examination, it was suggested to Ms.

Zolotarova that she was concerned if she did not go through this process, her children would be taken away. She said that was not the case. She does not think anyone will take her children away. Now it is very clear what was happening between her and Mr. Evans. Before, it was a big secret and no one knew about the family problems she was having. However, she had to make it very public.

[ 59 ] After the February 1, 2016, incident between her mother and Mr. Evans, Ms. Zolotarova said she was afraid to leave her mother and the kids alone. Accordingly, she was not able to go to Toronto for a mandatory training camp for the karate team. She had to request an exemption which is almost never approved. She had no choice but to tell everyone, including the coaches, her teammates, and the entire Karate Canada that she had been living in a marriage in which she was being abused. She said she had to publicly admit she was being abused to get an exemption, otherwise, she would be off the team.

Being on the team is something she has done all her life. [ 60 ] Ms. Zolotarova was asked whether Mr. Evans had done anything to suggest to her he would harm her. She did not answer the question directly, but pointed out she has not seen him or had contact with him except in court because of the order that was placed on Mr. Evans by this court. Mr. Evans' Testimony [ 61 ] Mr. Evans testified about how he and Ms. Zolotarova met in Jamaica, were married, lived in Abu Dhabi, and then returned to Canada for the birth of their first child. He acknowledged that when he and Ms.

Zolotarova returned to Canada, they moved in with her mother. He acknowledged he and Ms. Zolotarova travelled to Cuba once, to Mexico twice, and to Jamaica once during the course of their marriage. [ 62 ] Mr. Evans was asked whether there was any difference between him and Ms. Zolotarova about how to bring up the children. He said his wife did not have an opinion about how to bring the kids up. It was he and her mother who decided how to bring the kids up, what they should eat, and so forth. He said it was mostly he and Ms. Zolotarova's mother who looked after the children. [ 63 ] Mr.

Evans was asked to describe the relationship in the household where he lived with his wife and her mother. Mr. Evans said there was no major issue among them except over the last four years when he changed his diet and what he ate. He said they rejected his decision about his diet. That was when a number of issues arose in the household. [ 64 ] Mr. Evans was asked about Ms. Zolotarova's testimony that there was an occasion in 2012 when he grabbed her by the neck and said he was going to kill her. He recalled a conversation with Ms.

Zolotarova one evening when the two of them, their eldest son, and their baby were together. He did not know where Ms. Zolotarova got the idea that he was talking about a mother losing weight. He said the discussion was about stretch marks. [ 65 ] In the course of that discussion, he asked Ms. Zolotarova why she was complaining and suggested that she did not love her children. Ms. Zolotarova became upset. Mr. Evans maintained Ms. Zolotarova smacked him in the face. He grabbed her hands and pushed her down. He got on top of her and held her hands. He was trying to calm her down. She calmed down somewhat.

He did not know what Ms. Zolotarova told her mother about that incident because most of the time Ms. Zolotarova and her mother spoke in Russian and he does not understand Russian. [ 66 ] He was asked about other arguments they may have had and whether there was any physical interaction between them. Mr. Evans noted that Ms. Zolotarova claimed he was physical with her during a trip to Mexico. He noted she had described two incidents, one regarding coconuts and the other about how he choked her. He said the situation she described occurred on the same vacation and at the same hotel.

He did not agree with her version of events. In particular, Mr. Evans said he did not choke her. [ 67 ] With respect to the coconut incident, Mr. Evans said all of them as a family were on the beach. There was an iguana on the beach and they were on the rocks with other tourists, namely, two Chinese boys and their father. After looking at the water, he picked coconuts for his two boys and the Chinese boys and their father. Ms. Zolotarova got upset because he had not brought her any coconuts. She suggested to him he did not love her. Ms. Zolotarova then tried to climb the coconut tree herself.

He offered to pick a coconut for her, but she declined his offer. She was not able to pick any coconuts. He left the beach and returned to the hotel room. [ 68 ] On that occasion, they had reserved two separate rooms. The children were with their grandmother. He and Ms. Zolotarova were in the room across the hall. Mr. Evans acknowledged they argued. He told her he was going to leave. She grabbed him by the shoulder from behind. He resisted. She started screaming and her mother came into the room. Ms. Zolotarova told her mother Mr. Evans tried to choke her. It was not clear from his evidence whether he heard Ms.

Zolotarova say that or he learned about that comment later. Mr. Evans said he did not choke her. He left their room. [ 69 ] He was asked whether there was any other occasion when he had been involved in any physical violence toward Ms. Zolotarova. He noted Ms. Zolotarova said he tried to hit her in Jamaica when he was holding a baby in his arms. He categorically denied trying to hit her. [ 70 ] He said on that occasion his eldest son was playing with some little girls. Ms. Zolotarova told Mr. Evans their son had hit a little girl. He did not know why. His mother, that is Mr.

Evans' mother who apparently was there, was comforting the little girl. Ms. Zolotarova got mad at his mother comforting the little girl. [ 71 ] They were supposed to go to his mother's shop. He sensed Ms. Zolotarova did not want to go. It appears they went to the shop anyway. While they were in the shop, the baby started to cry. Ms. Zolotarova said it was because the baby was cold. Mr. Evans said it was because the baby was tired and wanted to sleep. He said if she would give him the baby, he would put him to sleep. He took the baby from her to help put him to sleep. Ms.

Zolotarova tried to take the baby away from him. The baby fell asleep fairly quickly and he put the baby in the stroller. Ms. Zolotarova left his mother's shop with the three children. It was about 10:00 or 11:00 p.m. at night. He went home, but could not find them. Later, he found out one of his cousins had seen Ms. Zolotarova walking down the street with the children and had picked her up and driven her to his mom's house. [ 72 ] His counsel asked Mr. Evans whether he wanted to cause Ms. Zolotarova harm. He said he had no intention of causing Ms. Zolotarova harm. If she wants a divorce, it is up to her.

He wants to have a relationship with his children, but maybe they, presumably referring to Ms. Zolotarova and her mother, do not want him to have a role. [ 73 ] In cross-examination, he explained he was actually arrested on two occasions. First, he was arrested on February 1, 2016, in

relation to the assault on Ms. Zolotarova's mother. He was released on February 2, 2016, and placed on a court order with conditions. That order had a condition that he not contact Ms. Zolotarova's mother. He was arrested again on or about February 13, 2016, on the s.810 Information now before the court. He was released again on conditions which included conditions that he not contact Ms.Zolotarova. It was not clear to me whether those conditions also prohibited contact with the children. [74] In cross-examination, he was asked whether he ever hit or choked Ms. Zolotarova. He said he never hit Ms.

Zolotarova and henever choked her. He also disagreed with the Crown's suggestion that he had grabbed Ms. Zolotarova by the neck on at least twooccasions. [75] It was put to Mr. Evans that on February 1, 2016, he struck Ms. Zolotarova's mother in the face. He responded he did not strikeMs. Zolotarova's mother in the face. It was also suggested to him that he struck Ms. Zolotarova's mother in the face and that blow brokeher nose. He responded he did not break Ms. Zolotarova's mother's nose. Position of the Parties [76] Defence counsel submits that a s. 810 recognizance should not be imposed on Mr.

Evans because the prosecution has notestablished on a balance of probabilities that such a recognizance is appropriate in the circumstances before this court. He maintains theCrown has not established either a subjective or objective basis for Ms. Zolotarova's fears. [77] Defence counsel also suggests Ms. Zolotarova is attempting to use the s. 810 process as a vehicle to obtain full guardianship oftheir children. Defence counsel points out Ms. Zolotarova maintained her fear escalated because of the incident with her mother. Hefurther notes Ms.

Zolotarova said her fear escalated on the morning of this hearing when she learned that Judge Gove acquitted Mr.Evans of assaulting her mother. The defence points out that Mr. Evans was acquitted of those charges. Further, defence counsel pointsout Mr. Evans has not contacted Ms. Zolotarova or the children. [78] In

summary, defence counsel suggests there is no basis upon which I can conclude that Mr. Evans would be a threat to Ms.Zolotarova in the future. [79] The Crown submits it has met its onus of proof in this case. That onus of proof is on a balance of probabilities and not thecriminal standard of beyond a reasonable doubt. The Crown notes many of the incidents recounted by Ms. Zolotarova are dated and Ms.Zolotarova candidly admitted she did not tell the police about some of these incidents. However, the Crown submits Ms.

Zolotarova'sexplanation is consistent with the behaviour experienced by persons who are subjected to violence. [80] The Crown points out Mr. Evans simply made a blanket denial. She also points out there is a Browne v. Dunn issue in that Ms.Zolotarova was not given the opportunity to comment on Mr. Evans' explanations. The Crown submits this is not a criminal trial. Accordingly, the analysis in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, does not apply. The Crown maintains it hasestablished Ms. Zolotarova has a subjective fear that Mr. Evans will cause her harm.

Moreover, the Crown submits it has establishedthat subjective fear is supported by reasonable grounds which point to an issuance of a recognizance under s. 810 of the Criminal Code. [81] The Crown relied on the following cases R. v. P.A.O., 2002 BCPC 597; R. v. Flett, 2013 SKQB 155; J.H. v. W.B., 2001 YKTC502; R. v. Budreo, (ON CA), [2000] O.J. No. 72; and F.H. v. McDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41.

Legal Principles Applicable to s. 810 Applications [82] Section 810(1) of the Criminal Code provides that an information may be laid on behalf of any person who fears on reasonablegrounds that another person will cause him or her or his or her spouse or child personal injury. If, after hearing the application, a judgeis satisfied on the evidence that the applicant has reasonable grounds for his or her fears, the judge may order the defendant to enter intoa recognizance to keep the peace and be of good behaviour and may impose such conditions as are reasonable in the circumstances. [83] In R. v.

Soungie, 2003 ABPC 121 , [2003] A.J. No. 899, Allen P.C.J. undertook an extensive review of the legalprinciples applicable to s. 810 applications. He summarized those legal principles at paragraph 46 as follows: Let me set out in point form the principles applicable to s. 810 applications:

Section 810 is preventive in nature protecting the applicant in appropriate circumstances from future harm to the applicant, theapplicant’s spouse, the applicant’s common law partner, the applicant’s children, or future damage to the applicant’s property. The Courtis allowed to intervene to prevent a breach of the peace prior to an actual offence being committed.

(2) Section 810 restrains the liberty of the defendant to live his or her life free from restraint of that liberty.

(3) The Judge must balance the two competing interests in determining whether to place the defendant on a recognizance. That is, theJudge must balance the right of the defendant to privacy or to be left alone against the right of the applicant to a protective intervention inappropriate circumstances. Certainly, the Judge must be cautious in exercising discretion to affect the liberty of the subject, but thiscaution must be tempered with a view to the protection provided to the applicant where grounds have demonstrated the need for therecognizance.

(4) The applicant must actually fear that the defendant will cause personal injury to the applicant, the applicant’s spouse, theapplicant’s common law partner, the applicant’s children, or will cause damage to the applicant’s property.

(5) The Judge must find that the applicant’s fears are reasonable, i.e., that an objective person armed with the same knowledge as theapplicant would agree that the applicant’s fears are reasonable. The reasonable fear must be triggered by some action of the defendant.

(6) Evidence of the defendant’s previous misconduct is admissible to determine the basis for the beliefs held by the applicant. Thisevidence can be used by the Judge in determining whether the applicant’s fears are reasonable.

(7) The Judge is not asked to predict future behaviour; rather, the Judge must be satisfied from the evidence the likelihood of futureharm or damage. The quality and strength of the evidence must be sufficient to satisfy this likelihood.

(8) The onus of persuasion is upon the applicant. The applicant must satisfy the Judge on the balance of probabilities of the groundsfor the issuance of a recognizance. [84] My review of the case law indicates there are a number of other points that should be considered by a judge hearing a s. 810application, namely: (

a) Section 810 does not create a criminal offence; accordingly, the applicant need not establish a basis for the fear beyond areasonable doubt. (

b) Nevertheless, given the potential consequences for the respondent, such applications require careful scrutiny of the evidencepresented, see Re Pyo, [2005] B.C.J. No. 636. (

c) Judges should take care before exercising their preventive jurisdiction under s. 810, see R. v. Budreo, also see Basha v. Basha,2008 NUCJ 29 , [2008] N.J. No. 29, where Gorman P.C.J. noted that a s. 810 recognizance should not be lightly imposed. (

d) Section 810 clearly contemplates that there is both a subjective element and an objective element which must be established. Subjective Fear and Objective Reasonable Grounds [85]

Section 810 itself and the case law relating to s. 810 make clear both objective and subjective grounds are necessary to supportan application for an order under s. 810. In R. v. Banks, (SK KB), [1995] 4 W.W.R. 698, Baynton J. noted thefollowing: (

a) Before an order can be made under s. 810, two elements must be established in evidence, namely, the complainant actually fearsthe defendant will cause personal injury to her, her child, or will damage her property and reasonable grounds exist for the complainant'sfears. (

b) The first element is a subjective condition while the second element is an objective one. (

c) The justice who conducts a trial must be satisfied the subjective and objective elements have been proven in evidence. (

d) Both elements must be proven before an order can be made under s. 810. (

e) The reasonable grounds requirement is necessary to protect individuals from unwarranted restriction on their liberty. (

f) Only in those instances where the subjective perceptions of a complainant are supported by objective reasonable grounds cansuch an intervention be made. [86] The Banks decision was relied on in Soungie where Allen P.C.J. discussed the objective and subjective elements to be proven ina s. 810 application. He noted that the subjective element requires the complainant to have an honest and actual fear. Personal harm inthis context includes fear of psychological harm.

He also noted the objective grounds must be triggered by some action or omission bythe defendant. [87] In Soungie, Allen P.C.J. noted that when making an order under s. 810, the judge is asked to restrain an individual because oflikelihood of future harm. However, predictions of future conduct are notoriously imprecise. The likelihood of future conduct is not thesame as predicting future harm. He further noted that the provisions of s. 810 do not require a judge to predict future behaviour. Instead,the judge must determine from the evidence presented the likelihood of future harm or damage.

This is best established by reference tothe quality and strength of the evidence; see paragraphs 22 and 26 in Soungie. Credibility [88] In this case, both the applicant, Ms. Zolotarova, and the respondent, Mr. Evans, testified. Their versions of events differedsignificantly. Accordingly, an assessment of credibility is a central issue in this application. [89] The onus of proof is on a balance of probabilities and thus the civil standard applies. The factors considered in assessingcredibility are often the same in both civil and criminal cases.

However, the analysis set out in civil cases does not require theapplication of the principles set out in R. v. W.(D.). Faryna v. Chorney, (BC CA), [1952] 2 D.L.R. 354, is the seminalBritish Columbia case on the subject of credibility assessment in the civil law context. Mr. Justice O'Halloran observed at page 357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [90] More recent cases decided in British Columbia Supreme Court have also commented on the assessment of credibility. A recentexample is Bradshaw v.

Stenner, 2010 BCSC 1398, where Dillon J. said at paragraph 186 to 187: [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness'

evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, (BCCA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para. 128 (S.C.C.)).

Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as awhole and shown to be in existence at the time (Farnya at para. 356). [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a 'stand alone' basis, followedby an analysis of whether the witness' story is inherently believable. Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence.

The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version ofevents is the most consistent with the "preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions" (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB KB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful. [91] In Pitcher v. Brown, 2015 BCSC 1415, Betton J. undertook a detailed review of the issue of credibility assessment in thecontext of a civil case which included a review of a number of relevant cases. One of those cases was British Columbia (PublicGuardian and Trustee) v. Zhang, 2011 BCSC 1205, which contains the following comments at paragraphs 34 and 35: [34] How then does a trier of fact assess what evidence is in "harmony with a preponderance of the probabilities"?

As Ryan J.A.recently stated in her concurring reasons in R. v. Sue, 2011 BCCA 91 at para. 47: Doubtless, a skilled liar or a good actor can easily feign sincerity. But it is also the case that most people of average intelligence cantailor a story to fit the circumstances if they put their minds to it. Thus, a trier of fact will test a story for both its logic and, with theappropriate cautions, the manner in which it was told. [35] In testing the witness' evidence, a court may consider the following factors, summarized by Thomson J. in Unique Tool & GaugeInc. v. Impact Tool & Mould Inc., [2002] O.J. No. 681 (Ont.

S.C.J.) at para. 121: ... [The witness'] ability and opportunity to observe; his appearance and manner while testifying; his power of recollection; any interest,bias or prejudice he may have; any inconsistencies in his testimony and, the reasonableness of his testimony, when considered in thelight of its harmony with the preponderance of the probabilities that the evidence was credible, believable and reliable. [92] In Erickson v.

Sibble, 2012 BCSC 1880, Ballance J. commented on the judicial task of credibility assessment as follows: Determining the credibility and reliability of a witness is fundamental to the judicial task, and yet is notoriously difficult. It has beenrecognized that the determination is more an art than a science, and is not a purely intellectual exercise. The factors involved can bechallenging to verbalize: R. v. R.E.M., 2008 SCC 51 at para. 49. Analysis [93] I will first consider whether the Crown has established that Ms. Zolotarova subjectively fears Mr. Evans will cause her harm.

As was noted in Soungie, this means the applicant has to establish she has an honest and actual fear. Ms. Zolotarova testified in theseproceedings that she feared Mr. Evans and is scared of what Mr. Evans might do in the future. Her testimony on this point was notshaken in cross-examination. I am satisfied that the Crown has established on her evidence that Ms. Zolotarova subjectively fears Mr.Evans. [94] Next, I will consider whether the Crown has established on a balance of probabilities that there are objectively reasonablegrounds for Ms. Zolotarova's subjective fears.

In other words, I must consider whether an objective person armed with the sameknowledge as the applicant would agree that the applicant's fears are reasonable. In doing so, I will consider the quality and strength ofthe evidence presented at this hearing. [95] In R. v. Park, [2007] N.J. No. 304, Gorman P.C.J. noted that although s. 810 of the Criminal Code does not create a criminaloffence, it does provide the court with a broad power to restrain and limit the liberty of a person bound by such a recognizance. Moreover, he noted it provides for imprisonment as a potential penalty if the recognizance is breached.

This illustrates the seriousness ofimposing a s. 810 recognizance and "highlights the requirement that the evidence presented in support of such an application becommensurate with the occasion." [96] In R. v. P.A.O., Stansfield P.C.J., as he then was, noted that a hearing for the issuance of a s. 810 recognizance is a kind ofquasi-criminal proceeding. He also noted that in any proceeding, but especially in one such as this, a judge will need to consider theevidence tendered to ascertain its probative value, its cogency, and its reliability. [97] In assessing the evidence presented at this hearing by Ms.

Zolotarova and by Mr. Evans, I have to assess its truthfulness andreliability. I acknowledge that the evidence presented by Mr. Evans could have been more fulsome and that some aspects of hisevidence were not put to Ms. Zolotarova when she testified. However, I do not accept the Crown's characterization that his evidencesimply amounted to a blanket denial. Mr. Evans did testify about his recollection of certain specific events/situations recounted by Ms.Zolotarova.

Moreover, the onus, albeit on a balance of probabilities, is on the applicant to establish a basis for the issuance of a s. 810recognizance. [98] In that regard, I now turn to the evidence of Ms. Zolotarova. As I have already noted, an assessment of credibility involvesconsideration of the trustworthiness of the witness' testimony based on the veracity or sincerity of the witness and the accuracy of theevidence of the witness. I have concluded that Ms.

Zolotarova's evidence is not reliable and is not consistent with the preponderance ofprobabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[ 99 ] In reaching that conclusion, I have considered a number of points including the following: (

a) The amount of time that passed between a number of the incidents recounted in her testimony and the date of this hearing raises concerns about her ability to recall exactly what happened. Yet she appeared to recall very specific details when it suited her, down to specific details of conversations which occurred between her and Mr. Evans. (

b) There were certain inconsistencies in her recitation of the background. For example, she testified that after the first incident of violence in April 2012, she consulted with a local battered women's support group. Although Mr. Evans did not apologize, she said she decided to forgive him and give him another chance. However, in spite of her apparent forgiveness, she testified that the incident of 2012 kept recurring as a subject for discussion. She emphasized the fact Mr. Evans never apologized for that incident. If she had forgiven him in 2012 and given him another chance even though he did not apologize, why was she pressing him for an apology years later? (

c) She testified that after the sixth incident, which occurred in June of 2015, she told her mother not to talk to Mr. Evans because she did not think her mother fully understood what Mr. Evans was capable of. However, Ms. Zolotarova said she understood what he was capable of. She also gave examples of his behaviour with the children and voiced her concern that he hit the children. However, when she had a ready-made opportunity to speak to the police, namely, when the police attended at her house in August 2015, she did not take that opportunity to address the issues that concerned her. (

d) On that point, it is notable that it was only in cross-examination, after being pressed by defence counsel about her reaction to the police attendance at her residence in August 2015, that she maintained she told the police officer she was not doing anything wrong and there was a man in the house who had abused her before. Her explanation about the police officer's response, namely, that he would do everything in his power to take the children away from her, does not accord with the preponderance of probabilities regarding what a police officer would do and say in 2015 in a case where a distraught woman made an allegation of spousal abuse. (

e) Ms. Zolotarova displayed anger and animosity during her testimony. In particular, she used the opportunity to testify as a platform to take shots at Mr. Evans and at others. For example, while testifying that she remained hopeful and continued to give Mr. Evans another chance, she referred to his abuse and referred to him as "a man like this," which in the circumstances of her testimony I took to be a pejorative comment. She was asked by the Crown about her training and her skills in karate.

While answering that question and explaining why her karate skills gave her no comfort, she took the opportunity to gratuitously describe Mr. Evans as dangerous, dishonest, scheming, plotting, and unpredictable. At one point when testifying, she commented that Mr. Evans was laughing and found the situation funny. In cross-examination, she was asked about what she expected of Mr. Evans. She replied she expected him to be honest with their children and to tell them the truth about everything rather than to pay a strange man, which I took to be a reference to defence counsel, to defend a lie. (

f) Ms. Zolotarova, in her testimony, gave a number of reasons for not taking steps to address Mr. Evans' behaviour. After the 2012 incident, she said she forgave him and really believed in their marriage. After the August 2013 incident, she said she did not report it to the police because she was afraid she did not have any proof and he would walk away with nothing and the abuse would continue. Moreover, she said she was hopeful and gave Mr. Evans another chance. After the Valentine's Day incident in 2015 when the police attended at their residence in response to a call placed by Mr. Evans, Ms.

Zolotarova said she did not tell the police that Mr. Evans had pushed her because she did not want the "love of my life" to have a criminal record. I appreciate family relationships are complex and spouses in difficult family situations often stand by their partners hoping for change. However, Ms. Zolotarova made a point of saying that after an incident in June 2015, she decided from then on she was not going to be afraid of Mr. Evans. Nevertheless, even after deciding she was not going to be afraid, she took no steps to protect herself or, more importantly, her children despite a litany of complaints about Mr.

Evans' behaviour which she detailed in court and her stated concern for her safety and that of the children. (

g) In particular, she did not ask the police for help when they attended at her home in August 2015 ostensibly to investigate a noise complaint. She maintains she told them about the abuse, but that she did not follow up because she was afraid they would take the children away. Her explanation for her failure to address her concerns in August 2015 in the context of all of the evidence heard in this hearing defies common sense, logic, and her stated concern for the safety of herself and her children. (

h) In contrast, I find it telling, although it may have been difficult, that when her career in sports stood to be potentially compromised she promptly took action. She had no problem telling her teammates, her coach, and Karate Canada about the abusive relationship when she was seeking an exemption from attending a mandatory karate camp in Toronto which was apparently necessary in order to have the opportunity to participate in the 2020 Olympics. [ 100 ] In addition to considering the reliability of Ms.

Zolotarova's evidence, I have also weighed the totality of the evidence adduced at this hearing in deciding whether reasonable grounds exist. On a balance of probabilities, I have concluded the Crown has not established there are objectively reasonable grounds for Ms. Zolotarova's fears. Accordingly, as the requirements set out in s. 810 of the Criminal Code have not been met, the Crown's application is denied. [RULING CONCLUDED]