R v Patel, 2023 ABCJ 120

In the Alberta Court of Justice Citation: R v Patel, 2023 ABCJ 120 Date: 20230203 Docket: 220171060P1 Registry: Edmonton Between: His Majesty the King Crown - and - Muhammed Hussein Patel Accused Judgment of the Honourable Ju stice F.K. MacDonald [ 1 ] Mr. Patel is charged that he On or about the 2 nd day of December 2021, at or near Edmonton, Alberta, did in committing an assault, cause bodily harm to Tristin Tanton, contrary to

Section 267 (

b) of the Criminal Code of Canada . [ 2 ] The Crown has proceeded summarily. Briefly the facts are these. Mr. Patel, the complainant, Tristin Tanton, and Ms. Tanton’s friend, Elizabeth (hereafter called Chantel) were drinking on Whyte Avenue. Later in the evening Mr. Patel took them to an apartment building downtown to the apartment of an acquaintance— “Buddy.” Ms. Tanton and her friend began to feel uncomfortable and wanted to leave—ultimately insisting on doing so. While waiting for a ride outside the apartment building, Ms. Tanton upbraided Mr. Patel. Mr. Patel approached Ms.

Tanton and there was a brief scuffle during which Ms. Tanton either was thrown or fell to the ground. The result was that she broke her ankle. At issue in this case is whether or not the fall was the result of the unlawful application of force by Mr. Patel on Ms. Tanton, or whether or not this was simply, as the Defense argues, an “unfortunate accident”; or if not an accident, whether or not the application of force was justified by self defence. [ 3 ] Time, date, jurisdiction and identity are not in issue. Likewise, it is not contested that the injury constitutes bodily harm. Mr.

Patel takes issue with the cause of the injury. The defense argues that a fall subsequent to the fall described above could have caused the broken ankle. THE EVIDENCE

TESTIMONY OF MS. TRISTIN TANTON [ 4 ] Ms. Tanton testified that she is a student at Grant MacEwan University. She is 21-years old. On December 1 st she met her co-worker, Chantel and went to Whyte Avenue about 9 pm. They stayed at Blues on Whyte until about 11 pm then went to the Crown. First dropping off a friend, Ashley, at home. They returned to the Crown where the accused, Mr. Patel met them there. Ms. Tanton drove. [ 5 ] Ms. Tanton described Mr. Patel as an acquaintance whom she had met 5 or 6 times through Chantel. Mr. Patel was there at Chantel’s invitation. They stayed at the Crown until 1:30 to 1:40 am.

At what Ms. Tanton thought was the end of the evening, they went to Mr. Patel’s car. She and Chantel got in the back, Mr. Patel and some “random guy” Mr. Patel had met got in the front. Ms. Tanton referred to this person throughout her testimony as “the random guy”; I will refer to him as “Buddy”—which is how Mr. Patel referred to him. Ms. Tanton thought they were going to have a smoke in the car and then she was going to go home. [ 6 ] Ms. Tanton said that Mr. Patel began driving away. She testified that she told him she didn’t want to leave. She said that Mr. Patel told her to “Shut up and don’t worry.” Ms.

Tanton testified “I thought I was being kidnapped.” [ 7 ] Mr. Patel drove, in what Ms. Tanton described, as a reckless manner to the downtown area to an apartment building at 124 Street and Jasper Avenue, arriving at about 2 am. On arrival Ms. Tanton told Mr. Patel that she wants to go home. He replied, “Don’t worry about it; we’re just going in.” Despite her misgivings Ms. Tanton went in with Mr. Patel and Buddy, having heard from Chantel that she did not want to be left with Mr. Patel and that she wanted a ride home from Ms. Tanton. [ 8 ] They attend at Buddy’s apartment.

There were a couple of Buddy’s roommates there and she did not feel safe there. There was a bottle of tequila on a table which Mr. Patel and Buddy and Chantel began to drink from. She said that they drank it quite quickly-- a half a bottle in a half hour. Ms. Tanton did not have a drink. [ 9 ] Mr. Patel and Buddy announce that they needed money at the ATB and they left. The were gone for a half hour or longer. Chantel and Ms. Tanton then went down to the main floor to look on the street to see if they could find Mr. Patel and Buddy—without success. She texted Mr. Patel via Snapchat—no answer. Ms.

Tanton called her father who declined to give her a ride. Ms. Tanton called a cab. When it arrived Mr. Patel and Buddy reappeared. Mr. Patel was angry that they were trying to leave. However, he persuaded an upset Chantel to return to the apartment, which she did. Ms. Tanton, concerned about her friend, followed. [ 10 ] They return to the apartment and then Mr. Patel and Buddy go in search of a phone charger. Mr. Patel and Buddy go to another apartment to get the charger. Ms. Tanton loudly demands to be taken home. Mr. Patel angrily agrees to take her back to her car. In the elevator things are tense and Ms.

Tanton described how Mr. Patel was attempting to intimidate her—getting in her face in the elevator. When they get outside onto the street in front of the Cambridge Lofts Ms. Tanton loses her temper and berated Mr. Patel, saying “You’re just a dirty East Indian who doesn’t know how to treat women.” Ms. Tanton described how Mr. Patel then rushed at her, grabbed her and pushed or threw her to the ground. Between the twisting and the fall, she broke her leg. She immediately yelled that her leg was broken. Chantel pulled Mr. Patel off Ms. Tanton. Buddy came over briefly to console her, which she rejected.

She and Chantel caught a cab to the southside. Chantel got off on Whyte Avenue. Ms. Tanton got dropped off at her car and fell again. She then got in her car and attempted to drive home. At Bonnie Doon the pain became too much for her and she called her boyfriend who came and picked her up. She subsequently went to the hospital the next day and was advised that her leg was broken, she was in a cast for 12 weeks; she had considerable pain and swelling and the injury restricted her mobility, and impacted negatively on her classes at GMU. Some photos of her injured foot are Exhibits 1 and 2 in this trial.

TESTIMONY OF MR. PATEL [ 11 ] Mr. Patel’s evidence is that he dropped Chantel off at work earlier that day and then went to his own job. Chantel had invited him to meet herself and Ms. Tanton that evening. Mr. Patel said that he met Ms. Tanton and Chantel at Blues on Whyte at about 10 pm. He testified that they then decided to go to the Crown (Chantel wanted to have some hookah) and that he drove them there. [ 12 ] At the Crown, where he is well known, he met Buddy, whom he had met at the Crown previously. At the Crown he bought three rounds of shooters for the table. He also spoke intermittently with Buddy. Ms.

Tanton took a turn twirling on the stripper pole and fell. He and the owner of the Crown fixed the pole. [ 13 ] At the Crown Buddy asked Mr. Patel to come back to his apartment as Buddy had some business questions for him. Mr. Patel testified that he told Chantel and Ms. Tanton of this invitation. He said that he promised to drop Ms. Tanton back off at her car when they were done at Buddy’s. He told Ms. Tanton that they would not be long. [ 14 ] The arrived at Buddy’s which is at the Cambridge Lofts downtown. He spoke to Buddy about crypto currency and taxes.

In cross-examination he did state that he went to his car to get a phone charger for Buddy, who needed it because his phone was dead. On his return to the apartment Buddy charged his phone and downloaded a file. [ 15 ] At some point he became aware that the girls were uncomfortable. At some point someone said something to Chantel and Ms. Tanton which made them uncomfortable and they left. After his conversation with Buddy was finished, they left. He did not recall clearly any confrontation with Ms. Tanton in the elevator. Outside the Lofts Ms. Tanton was angry and was yelling at him.

She called him a “Dirty Arab”, a “brown piece of shit”, a “stupid motherfucker”, a “bitch boy” and finally said to him “You are just a dirty little Indian who doesn’t know how to treat women.” He was at the door to the Cambridge Lofts at that point, but upon hearing this last insult turned to confront Ms. Tanton. He was at the doorway; Ms. Tanton was 5 to 6 meters away He walked towards her –perhaps quickly. Chantel was about halfway between them. He got halfway towards Ms.

Tanton when he saw her arms come up “to lunge forward and to push him away.” He decided that he had “to calm the situation down” and perceived that Ms. Tanton intended to assault him. So, he grabbed her and put her in a bear hug. Ms. Tanton tried to twist free and in doing so, tripped and fell. He did not think that she was injured. He said, “Oh great, now she’s crying”. He then returned into the Cambridge Lofts with Buddy. He testified that he was not

aware of Ms. Tanton’s injuries. He said that he learned about her broken leg when he was contacted by Cst. Bergen. THE VIDEOS [ 16 ] I have in evidence before me two sets of videos. One set is from the Cambridge Lofts—the apartment building which Mr. Patel and “Buddy” took Ms. Tanton and Chantel downtown. The other is from the Alberta Treasury Branch (“ATB”) across the street. Both sets of videos have their limitations. The Cambridge Loft videos show the lobby and a potion of the exterior of the building –which faces south on to Jasper Avenue. The ATB videos are captured on Cst.

Bergen’s phone, since the videos downloaded onto a USB were unplayable. As well, at a key point in the incident one of the ATB videos has a skip in it. That video does not capture the precise moment when Ms. Tanton either fell or was thrown to the ground. The other video does capture the incident but the view is somewhat obstructed by light standards on both sides of the street. The quality of the ATB videos is only fair. THE ATB VIDEOS IMG 1038 [ 17 ] This is an ATB video. The officer’s phone plainly recorded this video at a slightly oblique angle. The image captures the view from ATB facing north.

The camera capture what appears to be about 5 or so meters to the left of the entrance way to the Cambridge Lofts and the LRT. On the extreme right there is on the edge of the screen a portion of the doorway into the lobby of the Cambridge Lofts. To the left of that doorway is a sidewalk and a cement base for a light standard. The shorter figure on the right of the light is Chantel. Shortly afterwards (a few seconds) a taller figure comes from the left and walks to and past the cement block, that person is Ms. Tanton. Ms.

Tanton moves three quarters of the way across the field of vision past Chantel and facing the doorway. It appears that she is leaning slightly forward. Chantel is standing beside her and is between Ms. Tanton and the camera. Chantel then takes a few steps towards the doorway. A third figure enters from the right. It is agreed that it is Mr. Patel. Ms. Tanton steps forward with one leg and put her arms out at about shoulder height. Mr. Patel’s arm or arms come up briefly and his forward movement is briefly halted as he collides with Ms. Tanton. Mr.

Patel’s body then leans forward slightly and his forward motion resumes pushing Ms. Tanton backwards. She moves backward several feet. The video quality is poor but there appears to be a struggle. As well, a couple of poles on the side of the street closest to the ATB camera partially block the view of the struggle. Ms. Tanton goes from vertical to the prone on the ground. Ms. Tanton falls towards the street—that is in the opposite direction that she was being pushed by Mr. Patel. Mr. Patel goes from facing west (towards Ms. Tanton) to facing the street (south).

His posture goes from upright and facing west to in a crouch facing south. Ms. Tanton falls forward to the street side of the sidewalk. Chantel then intercedes. Mr. Patel stands up and moves to the right of the screen, pausing to turn in Ms. Tanton’s direction where she is prone on the ground. Chantel pushes him and he moves to the right and off screen. Chantel follows. The video ends with Ms. Tanton moving on the ground, but not upright. IMG 1039 [ 18 ] This video captures a brief period when Ms. Tanton and Ms. Chantel move eastbound (to the right on the screen) as a Yellow Cab pulls up. Ms.

Tanton moves haltingly. No time signature is visible. IMG 1040 [ 19 ] This video is from a different angle than the previous two videos. It appears that this camera is to the east of the camera in IMG 1038 and it carries an unobstructed view of the entrance and the sidewalk to the west of the Cambridge Lofts . It is 31 seconds long. In it the taller figure Ms. Tanton--strides toward the light standard. As she is passing it the video skips and in the next frame Ms. Tanton is on the ground and Chantel is pulling pushing Mr. Patel off. The camera view follows Chantel and she pursues and pushes Mr.

Patel as he retreats to the doorway of the Cambridge Lofts. It is clear that they are arguing and it also appears that Chantel is pushing and slapping at Mr. Patel, who gesticulates in the direction of the prone Ms. Tanton (off screen). It appears that Ms. Tanton is on all fours after the skip. There is standing on the west arch of the doorway, a taller figure – Mr. Patel’s friend “Buddy”. Buddy is leaning towards the spot where the keypad is located on the left-hand side of the entrance to the lofts. The video closes with Chantel and Mr. Patel gesturing at one another. Buddy is by the door.

There is another skip and the video shows a tall figure walking back from where Ms. Tanton is prone on the ground. The time signature at the top of the screen is 04:06:18 AM; I note that the officer’s screen shot of the other two videos does not capture the time signature on the screens. THE CAMBRIDGE LOFTS VIDEOS [ 20 ] These videos are Exhibit #3 in this trial. The videos are of the lobby which faces south towards Jasper Avenue. There are 6 short videos. They are all of the front entrance.

The bottom two thirds of the screen is the lobby; the upper third of the screen captures the front doors-which are glass-and a portion of the sidewalk outside the front door to the curb. The camera is plainly mounted on the ceiling and is pointing down to the doors. The hallway is dead center in the screen. Each video has a time and date stamp and the subscript “Front door” on the bottom of the screen. Each MP.4 video file has a number. I refer to each video by the last four digits of that number. VIDEO 4442 [ 21 ] The time signature is 3:44:40. There are a number of figures outside the front doors.

The taller figure, agreed to be Buddy, opens the door. He is talking with Mr. Patel who appears to be holding a phone. Mr. Patel stumbles as Buddy enters and catches himself on the open front door. Mr. Patel holds the door open for Chantel and Ms. Tanton who enter after. Chantel loses her balance as she enters

and Ms. Tanton takes her arm as they walk into the lobby and off screen. This video is 28 seconds long. VIDEO 1037 [22] The time signature is 4:10:38. Mr. Patel exits towards the front doors and is briefly unsteady as he opens the door and exits.Buddy and Ms. Tanton follow, talking animatedly. They stop briefly midscreen and Buddy leans towards Ms. Tanton and gestures withhis left hand. Ms. Tanton makes a gesture to swipe that arm away and speaks directly to Buddy as she moves toward the door, with herright hand briefly pointing at his face. She exits first and is removing her phone from her purse.

Buddy follows her out, gesticulating ashe exits. Lastly Chantel comes to the door and pauses to remove something from her purse. As she exits, a pacing Ms. Tanton and Buddycome back in front of the doors clearly arguing and Ms. Tanton gesturing and talking, her phone in her hand or at her ear. She walks offand Buddy follows her. They are clearly having a discussion. This video is 1:04 minutes long. VIDEO 1023 [23] Time signature 4:11:56. Mr. Patel is visible facing the front doors. He is unsteady on his feet. It appears he has a phone witha cord in one hand. Buddy is beside him and then goes to the buzzer.

On the extreme top of the screen Ms. Tanton’s feet are visiblewalking on the sidewalk close to the curb—recognizable because she is wearing boots; Chantel’s feet follow her—she is wearing whiterunners. Mr. Patel staggers a bit and makes a waving “come back” gesture with his hand towards the two women. He walks to the top ofthe screen (i.e. near the curb) and his feet are visible facing Chantel’s runners. Buddy walks to the top of the screen and appears to befollowing Ms. Tanton whose feet move offscreen to the right. Mr.

Patel then returns to the doorway and is hitting buttons on a keypad.Buddy returns to the door and uses the keypad and Mr. Patel walks a couple of paces out from the doorway. He then walks back to thedoorway and then is unsteady on his feet again. Buddy stands by the keypad, has a brief word with Mr. Patel, who then wanders offscreen to the right. Buddy then touches the keypad and then tries the door, then goes back to the keypad. Buddy presses the keypad andMr. Patel jogs back for the right of the screen. He staggers a bit and then goes back off screen on the right.

Buddy goes again to the doorand grasps the door handle looking intently at the keypad. Buddy stands at the door. This video is 1:46 minutes long. VIDEO 1419 [24] Time signature is 4:14:14. Buddy is standing by the keypad. Chantel is facing Mr. Patel who is gesturing to the right of thescreen. Chantel goes off screen to the right. Buddy goes and grabs the door handle. Mr. Patel turns and walks toward the door. He thenturns and faces to the right, perhaps saying something, and then drops a small with object which he bends and picks up. Buddy leans toand speaks to the keypad.

The door is pulled open by Buddy who reaches out and touches Mr. Patel on the shoulder: Mr. Patel bumpsinto Buddy as he passes him through the doorway and stumbles as he enters the lobby. He then holds the door open with his foot asBuddy goes out and to the right off screen. Mr. Patel sways as he stands at the door, doing something with what appears to be a phone.Mr. Patel then sticks his head out the door and appears to be talking and nodding in the direction where Buddy went (off screen to theright). He then takes a step out to look right while keeping one foot on the door to keep it open.

He then steps back keeping the dooropen with one foot; he does something with the object in his hands, swaying slightly. A yellow taxi pulls up at the curb. Mr. Patel thengoes outside again and leans out and points at the taxi, maintaining one foot on the open door. He gestures and point to the right. Thisvideo is 1:19 minutes long. VIDEO 1557 [25] Time signature 4:15:53. Mr. Patel is leaning out the door holding it open with one foot. Buddy comes from the right to thedoorway, as Buddy enters, he puts his hand on Mr. Patel’s right arm and guides/pulls him into the lobby. Buddy then puts his armaround Mr.

Patel’s shoulder and walks inside with him. This video is 23 seconds long. VIDEO 1654 [26] Time Signature 4:16:55. This three second video shows an unknown male walking to the door. At the top of the screen a bit ofthe yellow cab is still visible parked outside. [27] I note that some of the events in ATB video IMG 1040 are captured in or overlap with the events in Cambridge Loft videos1023 and 1419. THE LAW THE LAW: CREDIBILITY [28] In any criminal trial the burden of proof is on the Crown. The Crown must prove each element of the offence charged beyonda reasonable doubt. What is proof beyond a reasonable doubt?

The Supreme Court in R v Starr 2000 SCC 40 said this. Proof beyond a reasonable doubt is not proof to the level of certitude; such a level of proof may not be reachable even in scientificmatters, let alone human affairs. Proof beyond a reasonable doubt is however proof to near certitude.

It is much closer to the level ofabsolute certainty than to the level of probability (R v Starr at para. 242) [29] In R v Lifchus (SCC), [1997] 3 SCR 320 at para 36 Cory J explained the essential elements of theprinciple of reasonable doubt as follows: • That standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials,the presumption of innocence;

• The burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • Reasonable doubt is not a doubt based upon sympathy or prejudice; • Rather it is based upon reason and common sense; • It is logically connected to evidence or absence of evidence; it does not involve proof to an absolute certainty, it is not proofbeyond any doubt, nor is it an imaginary or frivolous doubt; and • More is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guiltymust acquit. [30] [25] The rule of reasonable doubt applies to the issue of credibility.

This is explained by Cory J in the Supreme Courtof Canada decision R v W(D), (SCC), [1991] 1 SCR 742 (also cited as DW v Her Majesty the Queen) where at pp.757-58 he explains: Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge but on any re-charge. A trialjudge might well instruct a jury on the charge of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [31] [26] In the B.C.

Court of Appeal case of R v H(CW) (1991), (BC CA), 68 CCC (3d) 146 Wood J.A.suggested an additional instruction be added to Cory J.’s direction: I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after careful considerationof all the evidence you are unable to decide whom to believe, you must acquit.” [p.155] This added instruction appears to meet theapproval of Binnie J in R v JHS, supra at para.12. [32] In R v Ryon 2019 ABCA 36 the Court of Appeal of Alberta set out a revised WD charge.

The court said the following shouldbe in a charge to a jury on credibility. Then the charge should impart the following: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence or disprove any of the evidence led by the Crown. (Subject to thecaveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent ofthe defence.) (ii) In that context, if the jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if theyare not confident they can accept the Crown’s version of events, they must acquit. (Subject to defences with additional elements such asan objective component discussed at para 31). (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. information: (iv) Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they maynot simply assume the Crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe anddecide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’sevidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [33] David M.

Paciocco and Lee Stuesser describe the distinction between “credibility” and “reliability” in this context as followsin their text, The Law of Evidence, rev. 5th ed. (Toronto: Irwin Law, 2010), at p. 29: “Credibility” is often used to describe the honesty of a witness. “Reliability” is frequently used to describe the other factors that caninfluence the accuracy of testimony, such as the ability of the witness to make the relevant observation, to recall what was observed, andto communicate those observations accurately. [34] In R v C(H), 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability, at para 41: Credibility and reliability are different.

Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Anywitness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is nota 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.). [35] In R v Wagar, 2017 ABPC 17, Le Grandeur PCJ summarized some of the factors a judge considers when assessingcredibility.

[20] The credibility of a witness is in essence the believability of a witness, and in part depends upon the assessment of truthfulness of the witness based upon his or her actions and conduct, credible or incredible as they may be.

Credibility is also based upon the reliability of the witness’s testimony having regard to a number of considerations including: 1. the witness’s opportunity to perceive; 2. his or her actual perception; 3. the witness’s ability to recall and communicate to the Court; 4. the stress that the particular witness may have been under at the time; 5. the witness’s demeanour and the manner of testifying, and 6. whether the witness has an interest in the outcome of the proceedings. [ 36 ] I will apply the law as set out above in my consideration of the witnesses’ evidence, and the evidence as a whole.

ASSESSMENT OF THE CREDIBILITY OF THE WITNESSES [ 37 ] For the reasons that follow I do not find the accused’s evidence to be credible or reliable. [ 38 ] Mr. Patel’s account of his dealing with “Buddy” and the reason for the trip downtown are grossly improbable. [ 39 ] Mr. Patel testified that he went downtown to the Cambridge Lofts at Buddy’s invitation. Buddy, Mr. Patel testified, was someone he met previously at the Crown because Mr. Patel drinks there often. “He’s someone I know by face not someone I know by name.” Buddy asked him to come and to meet and talk to his roommate. Mr.

Patel insisted throughout his testimony that he does not know Buddy’s name (page 98, ll. 39-40) or even his phone number (page 127, ll.15-19; ll.41; page 128, ll. 1-110). Later in cross- examination Mr. Patel further stated that when Buddy greeted him that he assumed that Buddy was someone he had met before. And in response to Mr. Gilmour’s questions, Mr. Patel agreed that he didn’t actually have a memory of meeting Buddy before. [ 40 ] At the Crown Mr. Patel spoke with Buddy “a bit throughout the night.” They both talked about their work. Buddy had some questions for him. He then accepted Buddy’s invitation.

Later in chief he described the conversation between himself and Buddy at the apartment. We were just sitting there talking. He asked me questions about like business things. I'm accountant for work and so he knows this. I do taxes, I do business taxes, personal taxes. So he was asking questions about money, investments, crypto currencies, things like that ... (page 101, ll. 11-14) [ 41 ] Later in his testimony Mr. Patel again described how Buddy asked him questions about crypto currencies and bit coins and that Buddy had some specific tax questions. (page 130, ll. 28-37). Later in cross-examination Mr.

Patel described that meeting as a “consultation” (page 137, ll.25-33) Mr. Patel agreed that he never got Buddy’s phone number or contact information to follow up on after, saying he “didn’t need to and he knew where to find him” (page 138, ll. 1-2). [ 42 ] Mr. Gilmour asked Mr. Patel why this “business” conversation could not have taken place at the Crown—to which Mr. Patel replied: I was hanging out with Tristin and Chantel at the Crown. I wasn't going to -- and he was hanging out with other friends -- I wasn't going to have that conversation there.

It’s not the time or the place really . (emphasis added) Q But 3 in the morning over tequila at his place is? A It is. (page 131, ll. 4-9) [ 43 ] All of the above is transparently absurd and in service of keeping anonymous both the identity of “Buddy” and the nature of the errand at the Cambridge Lofts. [ 44 ] I do not accept that Mr. Patel does not know the name of Buddy. His attendance to Buddy’s apartment is ridiculous otherwise. Why drive across town at 2 am to this person’s apartment if you don’t know the person at all? What sort of businessman does not keep the name of a person who is seeking his advice?

How was the “business” conversation not appropriate in a bar but was appropriate in a private residence room with many of the same people, hanging out with other friends, and drinking tequila? Mr. Patel’s explanation makes no sense. [ 45 ] Ms. Tanton testified that she believed the attendance at the Lofts was to purchase drugs. (page 29, ll. 26-27). Ms. Tanton’s evidence that Mr. Patel and Buddy disappear to go to a bank machine is consistent with a drug transaction. As well, Mr. Patel’s testimony hints as much. [ 46 ] In cross-examination Mr.

Gilmour asked the following: Q Were there any drugs at the, at the place, at the lofts? A I can't say for sure. There was probably some cocaine there, but I didn't partake.

Q Okay. Well, did you see it or not see it or you don't know? A I didn't see it, but I know it was there. Q Okay, and -- A He did ask me if I wanted some, and I said no, I'm good. He asked the girls wanted some. They said no they're good. I said no they're good because I didn't trust his stuff, so I just said no -- Q Okay. A -- and it was okay. [ 47 ] I note that Ms. Tanton was not asked anything about being offered drugs at the apartment. She did observe alcohol being served and was offered a drink—which she refused. What I do take from the above is that Mr.

Patel knew that drugs were in the apartment and that he was sufficiently familiar with Buddy that he did not trust the quality of the drugs. When asked by the Crown about the individuals in the apartment making the women feel unsafe, Mr. Patel replied that the women were safe with him because the individuals in the apartment “knew me. They’d seen me for years” (page 102, ll. 8-14). This shows that Mr. Patel knows Buddy far better than he was prepared to admit on the witness stand. [ 48 ] In short, I find that Mr.

Patel has not been honest with this court about his relationship with Buddy or the reason for the trip downtown. [ 49 ] Other aspects of Mr. Patel’s testimony, in my view, make no sense and are, I find, falsehoods to disguise some other activity. According to Mr. Patel they (he and Buddy) do not go to an ATM but rather go in search of a phone charger. They leave and go looking for a phone charger at the neighbour’s and ultimately go to Mr. Patel’s vehicle and retrieve Mr. Patel’s charger so that Buddy can charge his phone a download a file (pages 133, ll. 39-41; page 134 passim; page 135 ll. 1-12).

This explains the absence for a half hour but hardly seems reasonable-- no more reasonable than a drive across town to provide a half hour’s worth of tax and investment advice to a stranger at 2 am. What is the necessity of finding a charger for this same stranger to charge his phone and download a file? This is absurd. [ 50 ] And all the while Mr. Patel is keeping the two women—one of whom, Chantel, he has had a close relationship with for years- -- waiting for the ride he promised them while he attends to this supposed stranger. OTHER PROBLEMS WITH PATEL’S TESTIMONY [ 51 ] At various times in his testimony Mr.

Patel’s memory of these events was selective, inaccurate, or improbable. Here are a number of examples. [ 52 ] When he first arrived at Blues to meet Chantel and Ms. Tanton, he observed three beers on the table. I find it utterly improbable that anyone can recall 10 months after the event how many bottles or glasses are on a bar table that he sat down at (see page 92, ll. 39-41). [ 53 ] Mr. Patel testified that he drove Chantel and Ms. Tanton to the Crown. Mr. Patel then conceded that because he recalled they entered together that he believed that he drove them. He did not. (page 95, l. 1).

Plainly he was reconstructing his evening—and not accurately. [ 54 ] When asked if he consumed alcohol at Buddy’s apartment his initial answer was “Not that I recall” (page 102, ll. 35-37). Mr. Patel then testified that he “maybe had one drink.” His testimony shows that he is clearly guessing. I believe I must have had one drink because we would have -- he would have given me one when we got in as, you know, a guest would do, like somebody would do with a guest. He's like here, have one, because we were sitting down talking. Yeah, it would have been like a mix of something.

I don't know what it was, but yeah. (page 102, ll. 39-41; page 103, ll. 1-3) (emphasis added). . [ 55 ] However, later in cross-examination he confirmed that he had a mixed drink of tequila which he sipped slowly the time he was there (page 131, ll. 11-21). Mr. Patel’s memory then has gone from no drink to perhaps to definitely. I don’t accept this evidence. [ 56 ] In cross-examination Mr. Gilmour put to Mr. Patel a portion of the Cambridge Lofts videos which showed Mr. Patel swaying as he stood. Mr. Gilmour suggested to Mr. Patel that he was “quite intoxicated.” Mr. Patel replies, “I disagree with that.” Mr.

Gilmour then asks a question on a different matter and Mr. Patel reverses himself and says “I was intoxicated but I wasn’t quite intoxicated.” The Cambridge Loft videos clearly show that Mr. Patel is having problems with his gait and balance. He is wobbly; he sways. I do not accept his evidence that he was “just intoxicated”. He was evidently very intoxicated. [ 57 ] Mr. Patel testified that he did not know the nature of Ms. Tanton’s injury from the fall. Mr. Patel testified that he first learned of the injury from Cst. Bergen when he called (page 112, ll. 18-20).

However, shortly after this testimony he acknowledged that at the time of the incident he heard Ms. Tanton say that she had broken her ankle or leg. (page 114, ll. 39-41). [ 58 ] In cross-examination the Crown put the following to Mr. Patel, Q So you were completely surprised when the police came to see you a few months later? A I was very surprised.

Q Okay. Even though you said she said I think I broke my -- or my leg's broken while she was on the ground? A I didn't think that she would -- that charges would be laid and I'll be arrested for assault because I didn't feel like I did the things that would constitute assault. I did -- like I didn't think that -- I was, I was very shocked. I was very shocked. Q But you knew that there was at least, if not probable, a good possibility that she had a broken leg from that incident? A It's possible . (page 133, ll. 11-23) (emphasis added) [ 59 ] The above clearly shows he was aware the night of the incident that Ms.

Tanton was injured. The above answer is evasive: thinking that you are not going to be charged is not equivalent to not knowing about an injury. In short, his earlier answer denying knowledge of the injury was not truthful. [ 60 ] Mr. Patel testified that he met Chantel and Ms. Tanton at Blues around 10 pm. He was there for a short period and then they went to the Crown. At page 124 Mr. Patel says that when he got to Blues the sun was setting (ll. 29 -31). This is wholly unreliable. In Edmonton in December the sun sets at about 4:30 pm. [ 61 ] Likewise, Mr.

Patel’s denial of any confrontation in the elevator is evasive.” I don’t remember getting in her face” is not a denial of the event occurring. He acknowledged in cross-examination that his memory of that part of the evening is fuzzy. THE FALL [ 62 ] It is clear from Ms. Tanton’s evidence that she attributes her injuries to a deliberate action by Mr. Patel. “He rushed at me and threw me to the ground” is the gist of her evidence. [ 63 ] Mr. Patel’s evidence is that this was an “unfortunate accident” (page 118, l. 29) and that Ms.

Tanton tripped –on her boots or on something on the ground (page 110, ll. 25-26; page 113, ll. 1-3) or that her trying to escape his grasp caused her to fall. Mr. Patel testified that he had no intention of touching Ms. Tanton (page 111, l.27-28). [ 64 ] Mr. Patel’s evidence about the incident is contradicted by both the video and by Ms. Tanton’s evidence. [ 65 ] Mr. Patel maintained that he walked towards Ms. Tanton –quickly- but at a walk. (Page 109, ll. 1-3; page 110, ll. 11 and 12). That is simply not accurate. In the ATB videos Chantel and Ms.

Tanton are moving at a pace which could be described as “walking.” Mr. Patel runs into Ms. Tanton. [ 66 ] Mr. Patel testified that he had no intention of touching Ms. Tanton. It is clear from the video that Ms. Tanton puts up her arms in a defensive response to Mr. Patel rushing at her. Mr. Patel describes his response to this defensive gesture as follows. I note that he prefaced this testimony with the statement that he intended to stop halfway to Ms. Tanton to ask her “What did you say?” However, he goes on to say, when I saw her hands come up ready to lunge forward and push me away.

And at that time, I was moving forward, she was moving forward, and I saw that , and within a split second I decided, no, I'm not going to get her, like come into me, so I wrapped and I hugged her. I put her elbows, I got her, took her elbows, put them by her side and I hugged to stop her from being able to hit me or able to hurt herself, able to -- I stopped that (page 110, ll. 16-21) [ 67 ] What Mr. Patel describes here are his actions to counter any defensive measure by Ms. Tanton. His suggestion in this testimony that Ms. Tanton was going to harm herself is absurd.

Likewise, his suggestion that the collision between them (page 112, ll. 1- 3) was inevitable is preposterous. [ 68 ] Later in cross-examination Mr. Patel suggests that he had to turn around and respond to Ms. Tanton’s scolding because “she would have kept on walking forward” and because Ms. Tanton had decided to use force on him. In both instances his testimony presupposes 1) that he is able to read her mind and 2) perceives her aggressive intentions-- i.e., that she was going to hit him if he let go of her arms. Nowhere in the video is there any indication that Ms.

Tanton is assuming a fighting posture in relation to Mr. Patel. Mr. Patel’ describes Ms. Tanton’s raising her arms as a provocation, but that again an absurdity. It is neither a provocative nor an aggressive act to defend oneself against someone rushing at you. [ 69 ] I do not accept Mr. Patel’s evidence on how Ms. Tanton fell. It is wholly unreliable. Mr. Patel’ s evidence is --on the whole-- unreliable and not credible. ASSESSMENT OF MS. TANTON’S EVIDENCE [ 70 ] Ms. Tanton’s evidence also has its defects.

Her description of the trip downtown as a “kidnapping” is clearly hyperbole—an exaggerated statement that should not be taken seriously. [ 71 ] Plainly she did not want to go along; I accept that she told Mr. Patel she wanted to be taken to her car. However, her accompanying Mr. Patel and Buddy inside the Cambridge Lofts must be taken as grudging acquiescence to this trip. [ 72 ] Ms. Tanton is obviously wrong about the address she attended. The Cambridge Lofts are at 10024 Jasper Avenue –not 124 Street and Jasper Avenue—the other end of downtown Edmonton. [ 73 ] Ms. Tanton’s testimony that after the fall Mr.

Patel was on top of her for a number of seconds and holding her down is plainly contradicted by the video, which shows that Mr. Patel was crouching above her momentarily. She stated this a number of times in her testimony in chief and in her statement to Cst. Bergen. This is not accurate. However, a witness cannot be expected to time or recall with

exactness traumatic events. Inaccurate as her evidence was on this point it does not seriously detract from Ms. Tanton’s credibility. [ 74 ] Finally, I must consider that she was plainly angry at Mr. Patel on this evening and not thinking particularly clearly. If the male that you are relying on for a ride is proving unreliable and even erratic then it is hardly prudent –in circumstances such as these— late at night when people have been drinking for hours; at a stranger’s apartment where you don’t feel safe—to angrily and loudly insist on the ride.

The prudent course of action would have been simply to leave and call a taxi or an Uber. Further, the use of racial slur is never appropriate in a civil and multicultural society; in these circumstances Ms. Tanton’s use of the slur was doubly unwise. Ms. Tanton was angry and exercised poor judgment a number of times on this evening. [ 75 ] Ms. Tanton’s failure to leave is tempered somewhat by her reason for not doing so—her desire to protect her friend. Ms. Tanton clearly stated—and I accept—that Chantel asked her for a ride home and expressed the wish that she not be left with Mr. Patel and Buddy. Ms.

Tanton’s unwise behavior here is somewhat mitigated by the fact she was staying in the situation out of concern for her friend’s welfare. Chantel is petite and was quite drunk. Leaving her in an apartment of strange men would not have been kind, proper or safe. Ms. Tanton cannot be faulted for her actions on that score. [ 76 ] What then do I make of Ms. Tanton’s evidence overall? Noting the above, I accept Ms. Tanton’s evidence and in particular, her evidence about the incident on the street. Her evidence I find is supported by the video. There are a number of points at which Ms. Tanton’s evidence and Mr.

Patel’s conflict. In general, I accept her evidence over his. Her evidence is far more reliable and credible than Mr. Patel’s and lacks the numerous defects I have noted in his testimony above. [ 77 ] In particular, I make the following findings. First, I find that Chantel and Ms. Tanton were not consulted about the side trip to Buddy’s and once there only told that “it wouldn’t be long.” Two, that Ms. Tanton made quite clear to Mr. Patel that she wanted to be taken home. It is clear from Ms. Tanton’s evidence that she did so. Mr.

Patel’s evidence shows that he was aware that they did not feel safe at Buddy’s apartment (see pages 101, ll. 34-41; page 102, ll. 1-24). I accept Ms. Tanton’s evidence that they left looking for Mr. Patel and were called back into the apartment by Mr. Patel, who was hostile to her. I accept that Mr. Patel went on a search for a cell phone charger. I accept her evidence that on the elevator ride back down to the street that Mr. Patel was angry and confrontational. I do accept that by the time 4 am rolled around she was sober. I accept that she was also fed up and angry but nonetheless determined that Mr.

Patel should give her a ride back to her car. I accept that she called Mr. Patel a “Dirty little east Indian who does not know how to treat women.” I do not accept that she uttered the other slurs chronicled in Mr. Patel’s evidence. Nor do I accept Mr. Patel’s evidence that on a previous occasion Ms. Tanton was angry and resentful at a party because she was refused more drugs. I find that this is simply character assassination by Mr. Patel. I note that neither the additional slurs nor this other incident were put to Ms. Tanton in cross-examination. Mr. Patel is not a credible or reliable witness.

I reject that evidence. [ 78 ] Turning then to the incident on the street. Both parties agree that Ms. Tanton uttered a slur and Mr. Patel reacted. I find that Mr. Patel was intoxicated by alcohol. I find that he was angered and offended by Ms. Tanton’s remark. I find that he rushed at her—not a quick walk but a run. I find -as they both testified- that he wrapped his arms around her. The video and Ms. Tanton’s evidence are both clear that Mr. Patel’s contact with Ms. Tanton precipitated her fall. That contact was deliberate on his part. This was not an accident. Further, I find that Mr. Patel threw Ms.

Tanton to the ground. I do not accept that she tripped on her boots or on any object on the street; nor that twisting out of his grasp caused her to fall. The video shows Mr. Patel facing Ms. Tanton, pushing her back, he then pivots toward the street and drops while grasping her. The video evidence is consistent with Ms. Tanton’s evidence that she was thrown to the ground. I find that Mr. Patel grabbed Ms. Tanton and threw her to the pavement. [ 79 ] I do not accept Mr. Patel’s evidence about the fall; nor does it raise a reasonable doubt in my mind. I do accept Ms.

Tanton’s evidence, supported as it is by the videos. [ 80 ] I accept Ms. Tanton’s evidence that Mr. Patel said to her after he threw her down, “Now you’re crying bitch.” [ 81 ] I further accept Ms. Tanton’s evidence about the medical treatment she received and the effects of the injury on her physically and academically in the months that followed. . THE LAW--ASSAULT [ 82 ] Assault is defined in

section 265 of the Criminal Code . It reads as follows: Assault 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 (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application

(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. Consent

(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. [ 83 ] In the evidence before me it is clear and I find that Mr. Patel applied force to Ms. Tanton without her consent. Mr. Patel’s actions constitute an assault. [ 84 ] However, that does not end the matter. Are Mr. Patel’s actions justified by self defence? SELF DEFENCE [ 85 ] The self defence provisions of the Code read as follows: Defence of Person Defence — use or threat of force 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 86 ] Is there any evidence on each element of the three-part test for self defence such that this defense is applicable here. Mr. Patel reasonably believed that Ms. Tanton was going to apply force to him as she raised her arms. But that is to chop this transaction into pieces and take it out of context. Before Mr. Patel charged at her, did he believe that Ms. Tanton was going to apply force to him. No, he did not. I have no credible evidence that Ms. Tanton was about to or threatened to apply force to Mr.

Patel prior to his charge. That considers step one. Step two: Mr. Patel’s act was not for the purpose of defending or protecting himself from the threat or use of force. I do not accept Mr. Patel’s evidence on this point. I find that his actions were for the purpose of overcoming Ms. Tanton’s resistance to his assault on her. Mr. Patel’s actions all occur within seconds. The rush at Ms. Tanton and the grab and throw to the ground occur extremely quickly-within 2 to 3 seconds-it is a continuous action which constitutes an assault. This was, I find, not

an act of self defence. The second step of the self defence test is not met. Finally, taken as a whole, were Mr. Patel’s actions reasonable in the circumstances? No, they were not. I am satisfied beyond a reasonable doubt that self defence is not applicable in this case. PROVOCATION [ 87 ] Ms. Beyko argued this defence briefly before I reminded her that the defence of provocation under

section 232 of the

Criminal Code has no application in this case. Provocation is only applicable to cases of murder, and it is only a partial defence which may reduce what would otherwise be a murder to manslaughter. The provocation defence has no application to assaults. CAUSATION [ 88 ] Did the assault cause bodily harm? It is also clear that Mr. Patel’s action resulted in the fracture that Ms. Tanton described in her evidence.

Even without the hearsay statement about the fractured fibula the pictures of her grotesquely swollen foot and ankle and her description of 12 weeks in a cast amply meet the test for “bodily harm.” Clearly the harm she received was more than transient or trifling. [ 89 ] I am also satisfied, again based on Ms. Tanton’s evidence, that the subsequent fall had no effect on her injury. There is nothing I heard in the evidence that would reasonably constitute an intervening act which would sever the chain of causation. Ms. Tanton was in pain and hobbled by her injury immediately after Mr.

Patel threw her to the ground. None of that changed after. It would be entirely speculative to conclude that the second fall had any effect on her injury. [ 90 ] Finally, I am satisfied that the injury to Ms. Tanton was objectively foreseeable. If you throw someone to the pavement it is reasonably and objectively foreseeable that there is a risk that they will suffer injuries amounting to bodily harm. That is the mens rea required for the offence of assault causing bodily harm: see R v Dewey , 1999 ABCA 5 at para 12 .

CONCLUSION [ 91 ] The Crown has proven beyond a reasonable doubt all the elements of the offence of assault causing bodily harm. Stand up Mr. Patel. I find you guilty as charged. Heard on the 8 th day of September, 2022. Dated at the City of Edmonton, Alberta this 3 rd day of February, 2023. F.K. MacDonald A Justice of the Alberta Court of Justice Appearances: E. Gilmour for the Crown H. Beyko for the Defendant