R. v. K.R.N. Date:, 2017 BCPC 128

Citation: R. v. K.R.N. Date: 20170112 2017 BCPC 128 File No: 211496-1-K Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. K.R.N. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: Winston Sayson Counsel for the Defendant: Pamela Smith-Gander Place of Hearing: Surrey , B.C. Date of Hearing: December 8, 2016 Date of Judgment: January 12, 2017

Opening [ 1 ] On December 8, 2016, I presided over the trial in the matter of R. v. K.R.N. Today, I will deliver my reasons for judgment in that matter. Introduction [ 2 ] The accused, K.R.N. (K.N.), by way of Information No. 211496-1-K, is charged with two counts, namely that on or about May 14, 2015, at or near Surrey, British Columbia, he: Count 1 : did commit assault of S.S.N. (S.N.), contrary to s. 266 of the Criminal Code ; and Count 2 : in committing an assault upon the complainant, S.M.S.R. (S.R.), did cause bodily harm to the complainant, contrary to s. 267 (

b) of the Criminal Code . [ 3 ] He has pled not guilty to both counts. Issue(s) [ 4 ] The issues to be determined in this case are as follows: 1. Did K.N. commit assault of S.N.? 2. Did K.N. commit assault of S.R., and if he did, did his assault cause bodily harm to S.R.? [ 5 ] The parties take no issue with respect to K.N.’s identity or the timing or the location at which he is alleged to have committed these offences. [ 6 ] That leaves the Crown to prove beyond a reasonable doubt the other essential elements of the offences K.N. is charged with.

I will address these elements in my analysis. [ 7 ] I will first provide some background information and then describe the incident that led to the charges K.N. is facing. Background Information [ 8 ] K.N. and S.N. were in a relationship from about the end of 2012 to the middle of May, 2015. They have a child together – a girl born [omitted for publication]. [ 9 ] S.N. is [omitted for publication] years old and she works as an assistant manager, handling accounts, for a company called [omitted for publication].

At the time of the incident on May 14, 2015, she was not working and was financially dependent on K.N. [ 10 ] K.N., S.N., their daughter, S.N.’s father and her aunt, N.D.S. (N.S.), and six dogs, were all living together at [omitted for publication] in Surrey, BC. I will refer to this property as the Residence. From the front entrance of this Residence, a staircase going up leads straight to the kitchen on the left, and a hallway to the right leading to two rooms on the right, one being N.S.’s and the other being K.N.’s and S.N.’s, and to the left of the hallway is the dog room.

Just before the kitchen and to the left of the front staircase is the living room with a gate at the top of the staircase to prevent the dogs from exiting. Along the wall to the kitchen is a post. K.N. was paying the rent on the Residence and providing other financial support to S.N. [ 11 ] S.N. and D.T., who was S.N.’s best friend from school, were engaged in providing escort services when S.N. first met K.N. in late 2012. [ 12 ] Approximately, four months prior to the incident in question, K.N., S.N. and D.T. were intimate as a threesome.

Later, their relationship soured and K.N. broke up with S.N. and carried on with D.T. [ 13 ] For about two weeks prior to the incident, S.N. and K.N. had been arguing about who was cheating on the other. [ 14 ] Apparently, one of the conditions that K.N. had requested of S.N. was that she not engage in escort services during their relationship. However, S.N. took the position that since K.N. was using the escort services during their relationship, she should not be restricted from continuing with her services.

This apparently upset K.N. and led to him leaving the Residence for about three or four days. [ 15 ] During his absence, when S.N. drove by D.T.’s residence at [omitted for publication], in Surrey, BC, she found K.N.’s car parked there. She was torn, heart-broken and overwhelmed when she found out that K.N. had been with her best friend, D.T. [ 16 ] I will now describe the incident. The Incident [ 17 ] After being away from the Residence for about three or four days, K.N. had made arrangements with S.N. to attend at the Residence on May 14, 2015 to collect his van and personal belongings.

Apparently, he had specifically instructed S.N. not to have his mother, S.R., present at the Residence when he would be there. He went to the Residence that evening as planned. [ 18 ] Contrary to K.N.’s instructions, S.N. had arranged for S.R. to come to the Residence in the hopes that she would be able to

convince K.N. not to leave the Residence. [ 19 ] In the process of gathering his personal belongings and the van keys and leaving the Residence, K.N. is alleged to have verbally abused S.N. and S.R., and also pushed and shoved S.N. and struck S.R. against the wall or the post by the kitchen, injuring her head and causing her to bleed profusely. [ 20 ] While all of this was happening, there was a lot of noise and commotion, with K.N. yelling, the baby crying, and the dogs barking. [ 21 ] S.N.’s father and some of the neighbours are said to have called the police. At about 9:20 that evening, Cst.

Jung-Sun Kim was dispatched to the Residence to deal with a domestic incident in progress. A number of other police officers in marked vehicles were also dispatched to the scene. [ 22 ] By the time the police attended at the Residence, K.N. had left the Residence, but based on K.N.’s vehicle information S.N. provided, the police caught up with K.N. at a traffic stop in Richmond, BC, and arrested him. [ 23 ] I will now turn to the analysis of the issues in this case. Analysis [ 24 ] Cst. Kim, S.N. and N.S. testified on behalf of the Crown.

The Crown informed the court that the complainant, S.R., was scheduled to testify, but she could not because she was still overwhelmed and stressed about all that had happened. No one testified on behalf of the accused, K.N. The first issue is: 1. Did K.N. commit assault of S.N.? [ 25 ] Section 265(1) (

a) of the Criminal Code provides that: 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; [ 26 ] The Crown must prove beyond a reasonable doubt that K.N. intentionally applied force to S.N., without her consent. [ 27 ] When Cst. Kim arrived at the Residence, he spoke with S.N. and took her statement. She told him that she was not assaulted, but in her evidence at trial (which I will get to momentarily), she explained that she downplayed what K.N. did to her because she did not want him to leave the Residence or get him into trouble. [ 28 ] Cst.

Kim said S.N. showed him the text messages that were exchanged between her and K.N., while the police were attending to the incident. The text messages indicate S.N. explaining to K.N. that what happened that evening was not her fault and that it was his mother filing charges and not her; and K.N. responding angrily with profanity. [ 29 ] The defence claims these statements of S.N. were self-serving. In light of my discussion below, nothing turns on this. [ 30 ] Cst.

Kim testified that he took screen shots of these text messages to show that K.N. was in possession of a phone in breach of his recognizance relating to another matter. [ 31 ] S.N.’s evidence with respect to the alleged assault of her is as follows: when K.N. came into the Residence to get his personal belongings, S.N. pleaded with him not to leave. He was very angry, and he told her to get out of his way. He was packing his clothes and other stuff into a duffle bag.

When she mentioned D.T.’s name, he got angrier and swore at her using profane words such as “cunt, goof, slut, bitch, whore, and so on.” She did not swear back at him. He spat at her, and angrily pushed and shoved her away. She was crying and she tried to grab his arm to stop him from leaving, but he pushed her away and elbowed her around her breast area causing her to be – in her words – “thrown away.” [ 32 ] He had some stuff in the dog room. When he went into the dog room asking where his van keys were, S.R. came out of the dog room asking what was going on.

Seeing his mother made K.N. angrier because he had specifically asked S.N. not to have his mother present. [ 33 ] K.N. was unstoppable and he left in a big hurry; he sped away in his van. [ 34 ] N.S.’s evidence with respect to the alleged assault of S.N. is as follows: when K.N. and S.N. were arguing, she was in her room with the baby. Even though she did not see what K.N. was doing, she heard him yelling profanities at S.N. She then came out of the room and told S.N. to give K.N. his van keys and let him go. [ 35 ] N.S. said she was extremely fearful of K.N. as he once ran after her with a knife.

Even at the trial, she did not want to face K.N. directly. [ 36 ] Of the three witnesses, I have no concerns regarding the credibility of Cst. Kim. However, as the Crown and defence point out, there are some concerns accepting S.N.’s and N.S.’s evidence. For example, S.N. withheld information from the police about what exactly K.N. did to her on the evening in question, although her explanation for that was she did not want to get K.N. into trouble and she just wanted him to come home. S.N. was also not forthcoming to the court about how she and K.N. first met.

She said she met him at his car shop, as a customer, when she took her car in to his shop. However, in cross-examination, she admitted that she met K.N. in her role as an escort. The further concern with S.N.’s evidence and that of N.S.’s is that on the date of the trial, during the lunch break, S.N. and N.S. were observed talking with each other, even though S.N. was warned not to discuss the evidence with anyone during the break. S.N.’s explanation for this was that she only talked to N.S. about her daughter as N.S. was caring for her daughter.

[ 37 ] While S.N.’s explanations for these concerns seem plausible, I do have some concerns about the veracity of all of her evidence. However, I am not concerned to the extent that I will not accept any of her evidence. Needless to say, I will be cautious. [ 38 ] On the charge of assault of S.N., other than S.N.’s evidence that K.N. pushed, shoved and elbowed her, there is no other reliable evidence. Neither Cst. Kim nor N.S. saw K.N. do this to S.N.

S.N. herself stated to the police that she was not assaulted or injured, and she testified in court that she was not physically injured. [ 39 ] Even if I accept that K.N. pushed, shoved and elbowed S.N. as she claims, I am not convinced beyond a reasonable doubt that he intentionally applied force to S.N. As the defence submits, he was trying to get out of the Residence, and S.N. was grabbing onto his arm and was preventing him from leaving the Residence.

The evidence, including K.N.’s text messages, only indicates that he was very angry with S.N. and was swearing at her intently. [ 40 ] Therefore, I am not satisfied that the Crown has proven beyond a reasonable doubt that K.N. intentionally applied force to S.N., without her consent. [ 41 ] I now turn to the second issue. 2. Did K.N. commit assault of S.R., and if he did, did his assault cause bodily harm to S.R.? [ 42 ]

Section 267 (

b) of the Criminal Code provides, in part, as follows: 267. Every one who, in committing an assault, (

b) causes bodily harm to the complainant, is guilty of an indictable offence . . . [ 43 ]

Section 2 of the Criminal Code defines the phrase “bodily harm” as follows: “ bodily harm ” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature; [ 44 ] The Crown must prove beyond a reasonable doubt that K.N. intentionally applied force to S.R., without her consent, thereby causing hurt or injury to S.R. that interferes with her health or comfort, and that is more than merely transient or trifling in nature. [ 45 ] Cst.

Kim’s evidence regarding this charge is as follows: when he entered the Residence and went upstairs, he saw S.N. and S.R. He approached S.R. and saw blood running down from the top of her head, down the side of her neck. He saw a deep gash in the middle of her head and took two photographs of the injury which were entered into evidence. He did not observe any other injuries on her. She seemed upset and shaken up badly. It took a while for her to calm down. Because of the state she was in, she was not able to communicate step by step as to what happened.

At S.R.’s request, he called the ambulance for medical assistance, and they arrived and attended to her injury. However, she did not want to go to the hospital for further treatment. He does not know whether S.R. went to see her own doctor. [ 46 ] S.N.’s evidence regarding the second charge is as follows: when K.N. was about to enter the dog room to get some of his belongings, S.R. came out of that room and asked what was going on. K.N. became very angry when he saw his mother there because he had specifically asked S.N. not to have his mother there. S.R. was also pleading with K.N. to not leave the Residence.

K.N. also swore at S.R. using words such as “bitch” and “whore” and said she was no better than S.N. S.R. did not swear back or raise her voice, but was trying to reason with K.N. [ 47 ] When S.R. was standing at the doorway of the dog room, blocking K.N.’s exit, he reached out his arm and put his hand over her face and his other hand over her shoulder and pushed her against the wall, and gave her two more punches.

The argument and the pushing and shoving spilled over from the dog room into the hallway near the kitchen. [ 48 ] S.N. was hardly two arm’s length away from K.N. and S.R. and clearly saw what K.N. did to S.R. as there was nothing blocking her view. She also heard a loud bang when S.R.’s head banged against the wall. S.N. saw S.R. grabbing her head, but she ran after K.N. as he was leaving the front door swearing and yelling, “I’m never coming back; you are a bitch, whore . . .” and so on. She could not stop him as he sped away. [ 49 ] When she came back into the Residence, she saw S.R. bleeding profusely.

Her dad had put a towel on S.R.’s head to stop the bleeding.

She said she could have put another towel and that too would have dripped down if she had twisted it – that is how much blood was running down S.R.’s head and face. [ 50 ] S.R. was at least 60 plus years old and she was very weak and fragile with other health problems, whereas K.N. was 5 feet, 10 inches, and at least 200 lbs., and he worked out at the gym almost everyday. [ 51 ] K.N. could have avoided S.R. or asked her to get out of his way rather than banging her head against the wall. [ 52 ] N.S.’s evidence regarding the second charge is as follows: initially she was in her room with the baby and S.R. was also with her; N.S.’s room door was open a little bit and she clearly heard K.N. yelling at S.N. in the dog room.

He said “you suck my stick.” S.R. went to the dog room. As soon as the dog room door opened, she saw K.N.’s right hand go back towards S.R. He then went into the hallway and the kitchen. S.N. was following him into the kitchen. N.S. came in and out of her room and told S.N. to give K.N. the van keys and to let him go. [ 53 ] N.S. peeked from the hallway and saw K.N. banging the gate by the post near the kitchen that keeps the dogs away. She saw K.N.’s right hand on S.R.’s head and heard a loud sound. K.N. hit S.R. so hard against the post.

She heard S.N. say “blood, blood.” She brought the towel and S.R. wiped the blood. S.R. was dizzy and she asked to call 9-1-1. The ambulance arrived and attended to her

injury. [54] The defence submits that N.S.’s evidence should be given very little weight as she did not see the whole transaction frombeginning to end. On the whole, she did not see a lot. She was also seen talking to S.N. on the date of the trial while S.N. was in themidst of giving evidence. [55] I do have some concerns with N.S.’s evidence. She was literally rambling and a lot of what she said did not appear to becoherent.

Even between the evidence of S.N. and N.S., there appeared to be a lot of confusion and inconsistency as to what K.N. had inhis hands (for example, whether he had one or two duffle bags and in which hand he held them, whether he had any CD’s or the cashbills N.S. was referring to), and exactly where in the Residence, and how, he pushed and struck S.R. [56] However, what is clear from their evidence, and which I accept, is that K.N. did push and strike S.R., causing her to bleedprofusely. [57] The defence does not deny that S.R. sustained injuries.

However, it submits that any injuries she did sustain were simply as aresult of, or incidental to, K.N.’s attempts to leave the Residence as he was frustrated from S.R. and S.N. preventing him from leavingthe Residence. [58] It says there is no evidence to establish beyond a reasonable doubt that K.N. had any intent to injure his mother or that he evenknew that his mother was injured when he left the Residence. [59] While the law is clear that subjective foresight of bodily harm is not a necessary mens rea requirement for assault causingbodily harm, there is some uncertainty as to whether objective foresight of bodily harm is a necessary mens rea requirement for assaultcausing bodily harm. [60] In the recent case of R. v.

Johnson, 2016 BCSC 410, the court engages in a thorough analysis of the law in this area andconcludes at paragraph 86 that: 1. Subjective foresight of bodily harm is not a necessary mens rea requirement for assault causing bodily harm. [and] 2. ... from a review of the authorities it appears objective foresight of bodily harm is a [sic] not a mens rea requirement in BritishColumbia for the offence of assault causing bodily harm. However, this remains uncertain. [61] The court also sets out, at para. 52, the distinctions between a subjective mens rea and an objective mens rea as drawn byMcLachlin J. in R. v.

Creighton, (SCC), [1993] 3 S.C.R. 3, at paragraphs 110 to 111. These paragraphs read as follows: [110] … Subjective mens rea requires that the accused have intended the consequences of his or her acts, or that knowing of theprobable consequence of those acts, the accused have proceeded recklessly in the face of the risk. [111] Objective mens rea, on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies infailure to direct the mind to a risk which the reasonable person would have appreciated.

Objective mens rea is not concerned with whatwas actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably. [62] In this case, the evidence clearly establishes that K.N. intentionally applied force to S.R., without her consent. All S.R. wasdoing was trying to talk to K.N. and reason with him. He could have responded to her plea using words as a reasonable person wouldhave; or if he was not in the frame of mind to respond to her plea or reasoning, he could have simply asked her to step aside so that hecould leave.

However, he was yelling extreme profanities at his own mother and physically applied force on her, causing injury to herhead. As the Crown submits, only a person in a state of rage would behave in that fashion. [63] This could not have been an accident as the defence suggests. I do not accept the defence’s suggestion that K.N. was flailing hisarms in an effort to free himself from S.N. and S.R. who were trying to keep him from leaving the Residence, and in that processaccidentally hit S.R.

This is highly unlikely given the evidence that K.N. was in a state of rage, and he placed his hand or hands on S.R.and pushed and struck her against the wall or a post, causing a loud bang which S.N. and N.S. heard. K.N.’s state of anger is alsoreflected in the profanities contained in his text messages he sent to S.N. soon after he left the Residence. The loud bang and the profusebleeding are consistent with the application of extreme force.

They could not have been simply incidental to K.N. trying to make hisway out the door. [64] I am satisfied beyond a reasonable doubt that K.N. did intentionally apply force to S.R., without her consent – that is, K.N. didassault S.R. [65] As I said, the defence argues that there is no evidence to establish beyond a reasonable doubt that K.N. had any intent to injurehis mother or that he even knew that his mother was injured when he left the Residence. [66] It is not necessary for the Crown to prove beyond a reasonable doubt that K.N. intended to cause the injuries he did to S.R.

Inother words, there is no subjective mens rea requirement for assault causing bodily harm. [67] However, since the law remains uncertain as to whether objective foresight of bodily harm is still a mens rea requirement inBritish Columbia, I will take the view for the purposes of this case, giving the benefit of the doubt to K.N., that objective foresight ofbodily harm is an element of the offence of assault causing bodily harm. [68] As mentioned earlier, objective mens rea is not concerned with what was actually in K.N.’s mind, but with what should havebeen there, had K.N. proceeded reasonably.

A reasonable person would certainly have known that a young, physically fit man of about 5

feet, 10 inches, weighing at least 200 lbs., such as K.N., putting a hand over the face of a frail, 60+ year old woman and shoving her against a wall or a post in a state of extreme anger or rage would cause harm to that woman. [ 69 ] In other words, it was objectively foreseeable that K.N.’s action of putting his hand over S.R.’s face and shoving her against the wall or the post posed a risk to her of bodily harm. [ 70 ] The evidence in this case, particularly that of Cst. Kim and the photograph of S.R. bleeding that Cst.

Kim took, clearly shows that the injury S.R. suffered at the hands of K.N. was not merely transient or trifling in nature. [ 71 ] I do not find any merit in the defence’s argument that there is no medical evidence to show the severity of the injury S.R. suffered to establish bodily harm. [ 72 ] Cst. Kim testified that he saw a deep gash on S.R.’s head from which blood was running down her neck. The ambulance personnel attended to her injury.

There is no doubt such an injury would have interfered with at least the comfort, even if not the health, of a person suffering from such an injury, regardless of how old that person was. In this case, S.R. was in her 60’s, was frail and had health problems.

It is not unreasonable to conclude that this injury interfered with at least her comfort, if not also her health, as she had other health problems. [ 73 ] Based on the evidence before me, I am satisfied that the Crown has proven beyond a reasonable doubt that K.N. intentionally applied force to S.R., without her consent, thereby causing hurt or injury to her that interfered with her health or comfort, and that was more than merely transient or trifling in nature. Conclusion [ 74 ] In conclusion, I am satisfied that on the totality of the evidence before me, viewed as a whole, the Crown: (

a) On Count 1 – has not proven beyond a reasonable doubt that K.N. did commit assault of S.N.; but (

b) On Count 2 – has proven beyond a reasonable doubt that K.N. did commit assault of S.R. causing bodily harm to her. [ 75 ] For the reasons stated above, I find K.N. not guilty on Count 1, but guilty on Count 2. (REASONS FOR JUDGMENT CONCLUDED)