R. v. Barahona Date:, 2017 BCPC 316

Citation: R. v. Barahona Date: 20171023 2017 BCPC 316 File No: 241856-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. EMMANUEL ANTONIO BARAHONA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: C. Longworth Counsel for the Defendant: D. Hopkins Place of Hearing: Vancouver, B.C. Dates of Hearing: September 12, 14, 15, 18, 20-22, 25-27, 2017 Date of Judgment: October 23, 2017

INTRODUCTION [ 1 ] The accused is charged with a number of assaults that he allegedly committed while at an after-hours party. The accused pled not guilty to the charges and a trial was held. Several witnesses testified for the Crown and admissions were filed. The accused did not call any evidence. [ 2 ] All of the witnesses gave differing versions of what happened. What is common between them is that everyone had been drinking and they were at various levels of intoxication.

Below I have set out the evidence of each witness and my findings regarding their credibility and reliability. [ 3 ] The issues to be decided are; does the evidence prove beyond that the accused committed the offences and if so is there a reasonable possibility that the accused was acting in self-defence? Finally, and in relation to the assault involving Mr. Topsy, is there a possibility that the accused reasonably believed that Mr. Topsy was consenting to a fight? EVIDENCE OF THE WITNESSES Jeannelle Guimond [ 4 ] On November 28, 2015, Ms.

Guimond went to a local bar where she joined friends from work who were having a party for Mitchell Furber. Also present within the group was the accused. Ms. Guimond had never met the accused and it was her belief that his name was Antonio. [ 5 ] At the end of the night the group decided to continue their celebration at an apartment occupied by John Zarai and Adrienne Harding. The group left the bar and began walking to the apartment. As they made their way to the apartment Ms. Guimond noticed that the accused was following them. [ 6 ] Ms.

Guimond felt uncomfortable with the accused following along as it was her belief that no one in the group knew the accused. Ms. Guimond approached the accused and asked, “Why are you coming with us?” According to Ms. Guimond the accused responded by whispering, “Shut-up.” Ms. Guimond then asked Mr. Bowman if he knew the accused. In response Mr. Bowman went to the accused and asked why he was coming with the group. The accused did respond; however, Ms. Guimond could not hear what was said. [ 7 ] On cross-examination, Ms.

Guimond acknowledged that she repeatedly stated to the group, “Why is he following if he does not know any of us?”, and that she asked Mr. Harding about the accused but he just brushed her off without responding. [ 8 ] The group arrived at the apartment and they began socializing. After approximately five minutes Ms. Guimond approached Mr. Harding and asked to use his phone charger. Mr. Harding told Ms. Guimond that there was one in his room. Ms. Guimond went to Mr. Harding’s room and as she entered the room the accused came in behind her and said, “Get the fuck out of the room.” While he said this he shoved Ms.

Guimond with his forearm. The shove consisted of a forearm to Ms. Guimond’s upper chest, it was not full force and it caused Ms. Guimond to step backwards. It was her perspective that the accused was aggressive and mean. [ 9 ] Ms. Guimond was asked if Ms. Mannella was in Mr. Harding’s room when she entered and she responded that it was her recollection that she was not there. It was also suggested that the accused was in the room prior to Ms. Guimond entering and Ms. Guimond did not think that this was possible. [ 10 ] Immediately after the shove Ms. Guimond left the room and went to Mr.

Zarai’s room where she told Mr. Topsy what had happened. To the best of Ms. Guimond’s memory she told Mr. Topsy that she was pushed. She does not recall telling Mr. Topsy that she was grabbed. [ 11 ] After speaking with Mr. Topsy, Ms. Guimond was standing just inside Mr. Zarai’s room when she saw Mr. Topsy approach the accused. At this time Ms. Guimond was behind Mr. Topsy and slightly to his side and he was facing the living room. Ms. Guimond testified she had a clear view. [ 12 ] Ms. Guimond heard Mr. Topsy say to the accused, “Why did you shove Jeannelle?” The accused did not respond; rather, he punched Mr.

Topsy in the jaw. The force of the punch knocked Mr. Topsy backwards by a few steps. [ 13 ] Mr. Topsy was angered by the punch so Ms. Guimond and Mr. Zarai escorted Mr. Topsy into a bedroom so he could cool down. After a period of time they exited the bedroom and upon doing so Ms. Guimond was attacked by Ms. Mannella. Mr. Topsy went to Ms. Guimond’s assistance. This gave Ms. Guimond the opportunity to leave the apartment. [ 14 ] Once out of the apartment, Ms.

Guimond was pacing between the door and the elevator and when she was just outside of the apartment door she heard Mitchell Furber say, “I just got stabbed.” Ms. Guimond estimated that she had been in the hallway for about 2 minutes when she heard this. Ms. Guimond started calling 911 and it was around this time that Mr. Topsy joined her in the hallway. [ 15 ] When asked about the accused’s sobriety Ms. Guimond commented that he was drunk. She based this on her observation that the accused was slurring his words and her conclusion that he was aggressive. [ 16 ] In cross-examination it was suggested to Ms.

Guimond that she told a number of people about the shove and Ms. Guimond responded that she only told Mr. Topsy. Jatin Topsy [ 17 ] Mr. Topsy and people from his work went to a local bar with the intention of having a celebration for one of his colleagues that

was leaving. While at the bar he noticed the accused and it was his belief that the accused’s name was Antonio. [ 18 ] As the evening progressed it came to Mr. Topsy’s attention that the accused was being forward with the women in the group. In this regard, he was too close to the women, he was flirting and he had apparently grabbed Ms. Warren. Concerned about the accused’s behavior Mr. Topsy asked the accused to give the women more space and to back off. It was Mr. Topsy’s perspective that the accused was annoyed at being spoken to and it appeared that he just shrugged things off. [ 19 ] After the bar Mr.

Topsy and the group made their way to the Messrs. Zarai and Harding’s apartment. Mr. Topsy does not recall how he got to the apartment. Once at the apartment he noticed; that the accused was agitated, that he spoke in a loud voice and that his body language appeared confrontational. He also noticed that Ms. Mannella was agitated which Mr. Topsy attributed to her losing her purse and belongings at the bar. [ 20 ] At one stage Mr. Topsy was in the kitchen and he heard Mr. Harding asking the accused to leave. The accused asked why he had to leave and Ms.

Brittain interjected by trying to calm the group down. [ 21 ] While in the area of the kitchen Mr. Topsy saw the accused lean forward and Ms. Guimond stumble backward. Mr. Topsy approached the accused and when he was about a foot from the accused he asked, “Why did you push Jeannelle?” The accused responded with, “What are you going to do.” and Mr. Topsy said, “You’ll see.” On cross-examination, Mr. Topsy agreed he could have said, “You’ll see what happens.” Mr.

Topsy was frustrated when he spoke to the accused and his intention was not to start a fight but to find out why the accused would push a female. [ 22 ] Almost immediately after the words were spoken the accused turned to walk away. He then spun around and punched Mr. Topsy in the jaw. Mr. Topsy testified that he did not make any threatening gestures and his hands were at his side. [ 23 ] Of note, is while Mr. Topsy was testifying about the punch he demonstrated the accused’s movements. On the first demonstration, Mr.

Topsy showed the accused making a 360 degree turn and on his second demonstration he showed the accused turning 90 degrees and then turning back to face Mr. Topsy. [ 24 ] Mr. Topsy also testified that the accused had made a type of shrug shortly before the punch. It was Mr. Topsy’s view that he wanted the accused to know that, if he (the accused) made the first move that Mr. Topsy would not back down. [ 25 ] Upon being struck Mr. Topsy got angry and others stepped in and separated the two. One of the individuals who separated them was Mr.

Harding who told the accused he should leave and the accused responded by asking why. [ 26 ] Mr. Topsy was moved into a nearby bedroom where Ms. Guimond and Mr. Aguirre tried to calm him down. Just before being moved into the bedroom Mr. Topsy heard Mr. Bowman and the accused “bickering”. [ 27 ] While in the bedroom Ms. Guimond told Mr. Topsy that the accused had pushed her. Mr. Topsy next heard a commotion in the living area of the apartment. He exited the bedroom and he saw Tiffany Brittain and Bruna Mannella fighting. He also saw Mr.

Bowman, the accused and other people near the sliding glass door in the living room. Mr. Topsy could not see what was going on but he did see arms swinging. [ 28 ] Mr. Topsy separated Tiffany Brittain and Bruna Mannella, at which point Bruna Mannella turned and attacked Ms. Guimond, who had come out of the bedroom. Mr. Topsy separated the two and started pushing Ms. Guimond out the main door to the apartment. As he did this, he saw that Tiffany Brittain and Bruna Mannella had started a second fight but this time they were in the living room. Mr. Topsy separated them and he exited the apartment. As Mr.

Topsy was exiting the apartment he heard someone shout, “He has a knife, call 911, I’ve been stabbed. Mr. Topsy thought it was Mitchell Furber who said that he had been stabbed and he cannot say who spoke the other words. [ 29 ] On hearing the words regarding a stabbing, Mr. Topsy and Ms. Guimond took the stairs to the lobby and waited for the police. When the police arrived Mr. Topsy spoke to them but he did not return to the apartment suite. [ 30 ] As for his level of intoxication, Mr. Topsy testified he had four pints of beer at the bar.

He was of the view that he was not “that much” intoxicated when he was at the apartment. Mr. Topsy was of the view that the fighting and arguing heightened his senses. [ 31 ] As for the accused’s level of intoxication, Mr. Topsy felt he looked intoxicated. He based this on, the fact he saw the accused drinking, the accused’s manner of talking, and because the accused was yelling. [ 32 ] Mr. Topsy was cross examined about his observations regarding persons wanting the accused to leave the apartment. It was Mr. Topsy’s recollection that Mr.

Harding told the accused to leave on two occasions and that others were present when this occurred. Mr. Topsy denied asking Mr. Harding to kick the accused out. [ 33 ] On cross-examination, Mr. Topsy acknowledged he did not use the words “sucker punch” in his statement to the police. His explanation for this was the officer never asked him to describe the punch. Carlos Aguirre [ 34 ] Mr. Aguirre is a sales supervisor and on the evening prior to the incident he went to a bar with his work colleagues so they could have a goodbye party for Mr. Furber. While at the bar Mr. Aguirre saw the accused interacting with Mr.

Harding and Ms. Mannella. Mr. Aguirre had no contact with the accused while at the bar. [ 35 ] The group eventually left the bar and made their way to an after party which was being held at a nearby apartment. When Mr. Aguirre arrived at the after party the accused was already there.

[ 36 ] After about 20-30 minutes Ms. Guimond came to Mr. Aguirre and Mr. Topsy and told them the accused had been rude and touched her. Mr. Aguirre could not recall any more details regarding what Ms. Guimond said. [ 37 ] Mr. Aguirre then watched as Mr. Topsy approached the accused and asked why he touched Ms. Guimond. The accused denied touching Ms. Guimond and an argument started. After approximately one minute the accused punched Mr. Topsy on the left side of his face. [ 38 ] When the punch occurred Mr. Topsy was standing near the kitchen in the hallway. Behind him was Ms.

Guimond and in front and facing him was the accused. [ 39 ] Immediately after the punch Mr. Zarai and Ms. Guimond took Mr. Topsy into Mr. Zarai’s room. Mr. Aguirre approached the accused and asked him why he punched Mr. Topsy. The accused denied punching Mr. Topsy. [ 40 ] The accused made his way into the living room and he sat on a ledge. Mr. Bowman approached him and told the accused that he had to leave. This escalated to an argument and ultimately a wrestling match. Mr. Aguirre does not know who initiated the physical contact.

As the pair wrestled they moved into the kitchen where they exchanged more than 10 punches. Mr. Aguirre saw the accused grab a pan and strike Mr. Bowman on the head causing him to fall to the ground. [ 41 ] As Mr. Bowman was falling he pulled the accused down and the accused fell on top of Mr. Bowman. Others including Mr. Aguirre stepped in and separated the two. Mr. Aguirre recalls that Mr. Furber was one of the people helping in the kitchen. Mr. Aguirre described Mr.

Furber as having his arms on the accused’s shoulders and trying to pull him. [ 42 ] Eventually the two were separated and the accused was pulled towards the couch. Mr. Bowman got to his feet and he appeared dazed. Mr. Bowman touched the top of his head, looked at his hand, and on seeing blood on his hand Mr. Bowman rushed the accused who was standing in the living room near the arm of the couch. The two began wrestling and punching each other. During the fight they moved towards the television and fireplace. Mr. Aguirre moved behind Mr. Bowman and tried pulling him away from the accused. As Mr.

Aguirre did this, he saw Mr. Furber pulling on the accused’s shoulders from behind. It was Mr. Aguirre’s perception that Mr. Furber was trying to separate the accused and Mr. Bowman. [ 43 ] While the parties where struggling they moved towards the windows. At this stage, and while pulling at Mr. Bowman, Mr. Aguirre heard Ms. Brittain call for help. Mr. Aguirre turned his attention to Ms. Brittain who was on the couch with her hair being pulled from behind by Ms. Mannella. [ 44 ] Mr. Aguirre went to assist Ms. Brittain. He distinctly recalled looking down at Ms. Mannella’s hand as he tried to free Ms.

Brittain’s hair from Ms. Mannella’s grasp. As he did this Mr. Aguirre heard Mr. Furber yell, “I’ve been stabbed. You stabbed me. I didn’t do anything.” [ 45 ] Mr. Aguirre looked up and saw Mr. Furber fall toward the area next to the fireplace and land on the ground near the entrance to Mr. Harding’s room. Mr. Aguirre saw the accused wipe a knife against the curtains, his shirt and his pants. The only other person in the immediate area was Mr. Bowman. [ 46 ] The accused then put the knife into his pocket, grabbed his jacket and jumped over Mr. Bowman. As for Mr. Bowman, Mr.

Aguirre testified he was not moving and he was hunched over on the window sill. At this stage, Mr. Aguirre did not know that Mr. Bowman had been stabbed. [ 47 ] Mr. Aguirre went to assist Mr. Furber and as he was doing this he saw Mr. Bowman stand up, hobble forward and fall to the ground. At this point Mr. Aguirre realized that Mr. Bowman had been stabbed. Mr. Aguirre yelled at Ms. Warren to call 911. Ms. Mannella stayed in the area and she started throwing things at Mr. Bowman. Then and with the help of Mr. Taggar, Mr. Aguirre carried Mr.

Furber down to the lobby where they waited for emergency responders. [ 48 ] The knife that Mr. Aguirre saw the accused holding had a black handle, and a blade that was about 2-3 inches long which was silver. [ 49 ] On cross-examination, Mr. Aguirre agreed he heard Ms. Guimond explain what had occurred between herself and the accused. Mr. Aguirre also agreed that Ms. Guimond described the action as either a push or a grab. [ 50 ] Mr. Aguirre also agreed with the suggestion that Mr. Bowman was likely trying to get the accused to leave the apartment. [ 51 ] Counsel for the accused questioned Mr.

Aguirre over some apparent contradictions in his police statement. Specifically, counsel pointed out to Mr. Aguirre that he failed to tell the police about the accused hitting Mr. Bowman with a pan. Mr. Aguirre explained his omission by indicating that the pan incident was minor compared to the stabbing and that he was focusing on giving the details about the stabbing when he gave his statement. He also testified that he gave his statement after having been at the police station for several hours. Navneet Taggar [ 52 ] Mr.

Taggar attended the bar with his work colleagues and while at the bar he noticed that the accused had joined the group. Mr. Taggar did not know the accused, nor, did he know the accused’s connection to the group. After the bar, the group walked to an apartment for further celebration. The accused followed the group. Mr. Taggar did not see anything untoward during the walk. [ 53 ] Once at the apartment, Mr. Taggar noticed that Ms. Mannella was agitated and upset over a lost purse. He next recalls a fight in the kitchen between Mr. Bowman and the accused. Mr.

Taggar described the fight as; grappling with the accused being pushed up against a wall near the window. Mr. Taggar tried to intervene by calming the parties and pushing them apart. He testified that they had a good lock on each other so he gave up. Mr. Taggar did not see anyone else trying to break up Mr. Bowman and the accused.

[ 54 ] While Mr. Bowman and the accused were fighting in the kitchen, Mr. Taggar saw Ms. Brittain and Ms. Mannella fighting in the living room near the sliding glass door. According to Mr. Taggar, he saw Ms. Mannella pull Ms. Brittain’s hair, punch her, and break a bottle on her head. Mr. Taggar went to stop the fight and in doing so he grabbed Ms. Mannella’s shoulder and shook her. Ms. Mannella then ripped Mr. Taggar’s shirt and punched him in the face. At this stage, Mr. Taggar felt he had enough and he stepped out of the apartment. [ 55 ] After a period of time, Mr.

Taggar returned to the apartment and when he entered he saw Mr. Bowman on the floor with lots of blood around him. He also saw Mr. Furber on the floor leaning against a wall and holding his leg. Mr. Taggar heard Mr. Furber say, “He stabbed me. He stabbed me.” The accused was no longer in the suite. [ 56 ] Mr. Taggar saw Ms. Mannella and Ms. Brittain fighting. He also saw Ms. Mannella kick Mr. Bowman in the face. Mr. Taggar then tried calling 911 and according to his call log he did this at 2:44 am. Mr. Taggar then assisted Mr. Aguirre in carrying Mr. Furber to the lobby where they waited for the paramedics.

Marcel Raynard [ 57 ] Mr. Raynard attended the send-off party at the bar and at the time he was dating Ms. Warren. At around 11 or 12, Mr. Raynard was outside smoking when he saw Ms. Mannella arrive with the accused. Mr. Raynard and Ms. Mannella spoke briefly and they entered the bar. [ 58 ] Inside the bar Mr. Raynard saw the accused put his hands on Ms. Warren’s hips and get close to her. Mr. Raynard felt that the accused was being aggressive and overly touchy. Mr. Raynard approached the accused and told him to back off. The accused complied without saying anything. Mr.

Raynard confirmed that while at the bar Ms. Warren told him that the accused grabbed her. [ 59 ] Upon leaving the bar, Mr. Raynard walked with the group back to the apartment and while walking to the apartment, he heard Mr. Bowman say that he did not want the accused to come along and that he was an outsider. Mr. Raynard could not recall if the accused responded to these comments. [ 60 ] Once at the apartment Mr. Raynard made his way out to the balcony. While on the balcony he became aware that Ms. Mannella was being aggressive and that several people were trying to calm her down. At one point he saw Ms.

Mannella and Ms. Brittain fighting in the living room and several people trying to separate them. [ 61 ] Mr. Raynard heard lots of yelling and screaming. He decided to leave and get a pizza with the hope that things would cool off while he was gone. As Mr. Raynard left the suite he saw Mr. Zarai calming Ms. Mannella down. [ 62 ] Rather than getting a pizza Mr. Raynard had a cigarette. He then took the elevator back to the apartment. When Mr. Raynard got off of the elevator, and after taking two or three steps, he saw the accused run past him toward the elevator saying, “Oh fuck, fuck.” Mr.

Raynard noticed that the accused looked shocked and panicked. [ 63 ] Mr. Raynard entered the suite and he saw Mr. Bowman on the floor and bleeding. People were yelling for someone to call 911, so Mr. Raynard called 911. Mr. Raynard stayed on the phone with the operator until the police arrived. When Mr. Raynard re-entered the suite he did not see Mr. Furber. He noticed that Ms. Mannella was still quite excited. The police arrived shortly after the 911 call. [ 64 ] Mr.

Raynard was asked if he ever saw the accused in the suite and he indicated that before going to get pizza he saw the accused sitting quietly on the arm of the couch. John Bowman [ 65 ] Mr. Bowman went to the goodbye celebration for Mr. Furber. Several people from Mr. Bowman’s work were there. While at the bar, Mr. Bowman noticed the accused. Not knowing the accused Mr. Bowman approached him and asked who he was and why he was with the group. The accused advised Mr. Bowman that he was friends with Mr. Harding. [ 66 ] As the evening progressed Mr.

Bowman became aware that the accused was being grabby with some of the women. Mr. Bowman could not recall what occurred that caused him to reach this conclusion. [ 67 ] After an evening at the bar the group left and began walking to the apartment shared by Mr. Zarai and Mr. Harding. While walking to the apartment Mr. Bowman spoke to the accused and asked him who he was and why he was coming with them. The accused responded that he was a friend of Mr. Harding. [ 68 ] When the group arrived at the apartment the atmosphere was jovial. This changed as various dramas and incidents began to unfold. Mr.

Bowman recalled that Ms. Mannella and the accused were the principle participants in these incidents. [ 69 ] Mr. Bowman thought he would try and diffuse some of the tension so he asked the accused to step into Mr. Zarai’s bedroom. There, Mr. Bowman explained to the accused that he needed to cool things down, take it easy and that there was no place for fighting. Mr. Bowman did not recall the accused trying to leave the room. He did recall suggesting to the accused that it would be in his best interests if he waited in the room until things calmed down. The accused thanked Mr.

Bowman for the conversation and for having his back. [ 70 ] The two exited the room and shortly thereafter Mr. Bowman heard yelling in the kitchen and he saw pushing and shoving involving the accused and the group. Wanting to diffuse the situation Mr. Bowman inserted himself between the parties. At this time, he saw, the accused, Mr. Furber, Mr. Aguirre, Mr. Raynard, Ms. Guimond and Ms. Brittain in the kitchen. [ 71 ] The events in the kitchen escalated to the point where the accused and Mr. Bowman began trading punches. While Mr. Bowman was fighting with the accused, he saw Ms. Brittain and Ms.

Mannella start to fight. At one stage Mr. Bowman was hit on the

back of his head with a metal object. Although Mr. Bowman did not see who struck him it was his belief that it was Ms. Mannella. Mr. Bowman’s belief was based on the seeing Ms. Mannella beside him when he was struck. Mr. Bowman had no recollection of the accused head butting him. [ 72 ] During the fight the parties did not remain stationary in the kitchen; rather, they jostled about eventually ending up in the living room. While in the living room, Mr. Bowman and the accused became separated. After being separated for 10-15 seconds, the accused lunged at Mr.

Bowman striking him in the head several times and kicking him in the shins. [ 73 ] Mr. Bowman fought back but the accused was able to throw him to the ground and pin him. Mr. Bowman tried to cover up, but the accused hit him several times. Mr. Bowman recalls feeling sharp pains immediately before going to the ground. Once on the ground, Mr. Bowman lost consciousness and when he regained consciousness, his head was in Ms. Brittain’s lap and she was upset. Mr. Bowman’s next memory is the arrival of the emergency responders. [ 74 ] During cross-examination, Mr.

Bowman confirmed he has the belief that the accused had grabbed Ms. Guimond. Mr. Bowman was uncertain as to how he formed this belief. [ 75 ] According to the admissions filed as exhibit 3, Mr. Bowman suffered the following injuries; a scalp laceration, a puncture wound to the upper left portion of his abdomen and 4 puncture wounds on his left thigh. The punctures were all of various depths and were consistent with having been stabbed with a knife. Tiffany Brittain [ 76 ] Ms. Brittain went to a local bar where a sendoff party was being held for one of her work colleagues. While at the bar Ms.

Brittain saw the accused and Ms. Mannella. [ 77 ] Ms. Brittain had never met the accused or Ms. Mannella. As the night progressed, Ms. Brittain became troubled by the accused’s behavior. Specifically, she felt he was being too persistent in his efforts to speak with the woman. She noticed he was talking inappropriately, and when Ms. Brittain was on the dance floor he grabbed her buttocks. Ms. Brittain told the accused on multiple occasions to leave her alone and to fuck off. The accused would respond to her comments by walking away and returning a short time later. Ms.

Brittain felt the accused was being too friendly to the women and not understanding “no”. [ 78 ] Ms. Brittain joined the group as they walked from the bar to a gathering that was going to take place at a nearby apartment. As the group walked the accused tried approaching Ms. Brittain, and Ms. Warren. Again, the accused grabbed at Ms. Brittain’s buttocks and she told him to fuck off. Ms. Brittain’s comment had no impact on the accused and he kept walking with the group. Then, and while standing near Mr. Bowman and Mr. Raynard, Ms.

Brittain said in a loud voice that she did not understand why the accused was coming back with them. The accused responded by walking away and speaking with someone else. [ 79 ] At about 2:00 am, the group arrived at the apartment, Ms. Brittain felt that the mood was good. She was uncomfortable with the accused being there, but she felt that the group was welcoming as they knew that the accused was friends with Mr. Harding. Things quickly changed when Ms. Mannella started accusing people of taking her purse. Efforts to calm Ms. Mannella were unsuccessful and she became more anxious. At one stage, Ms.

Mannella got into an altercation with Mr. Taggar ripping the collar of his shirt and hitting him several times. [ 80 ] Ms. Brittain observed that no one was stopping Ms. Mannella from attacking Mr. Taggar. Ms. Brittain tried to intervene and this resulted in a struggle between the two women. Eventually Ms. Brittain pinned Ms. Mannella to ground. [ 81 ] Ms. Brittain eventually got off of Ms. Mannella and it was at this point that the environment appeared to change. There was a commotion involving the accused and this resulted in Mr. Bowman and the accused going out on the balcony to have a chat. Ms.

Brittain kept her attention on Ms. Mannella, but she also kept an eye on Mr. Bowman who was on the balcony with the accused. [ 82 ] Ms. Brittain watched as Mr. Bowman and the accused came back into the suite. At this stage Ms. Mannella was still being hostile and for reasons that were not apparent to Ms. Brittain the accused grabbed Mr. Bowman and threw him from the end of the couch across the coffee table past the television and towards the far window. The accused then walked over to Mr. Bowman and threw him to the couch. In the result, Mr.

Bowman went over the couch and ended up being pinned upside down behind the couch. [ 83 ] The accused then pinned Mr. Bowman with his hand and he punched Mr. Bowman at least four times. Ms. Brittain approached the accused and punched him in the face. The punches had no effect on the accused so Ms. Brittain grabbed him by his hair and pulled back. The accused stopped punching Mr. Bowman and he took a step backwards. Ms. Brittain also stepped backwards and at this point Ms. Mannella came up and hit Ms. Brittain with a glass vase. [ 84 ] Ms. Brittain turned to face Ms. Mannella and Ms.

Mannella pulled her to the ground by the hair. Ms. Mannella then punched Ms. Brittain who tried punching upwards at Ms. Mannella. Unable to free herself, Ms. Brittain called for help and Mr. Topsy came over and freed Ms. Brittain. He then told Ms. Brittain that it was time to leave. Ms. Brittain started gathering her things and as she did this she saw Ms. Mannella pick up a bottle and move towards her. Afraid that Ms. Mannella was going to attack her, Ms. Brittain ran out of the apartment and into the hallway where she held the exit door shut. [ 85 ] In the hallway Ms. Brittain saw Mr. Topsy and Ms. Guimond.

While standing in the hallway Ms. Brittain heard Mr. Furber yell that he had been stabbed. Ms. Brittain told Mr. Topsy and Ms. Guimond that she was going back inside and they advised against it. When this happened Mr. Topsy and Ms. Guimond were walking towards the elevator or the stairs. [ 86 ] Ms. Brittain re-entered the apartment and once back inside she saw Mr. Furber and Mr. Bowman. Both were bleeding and Mr. Furber was on the ground while Mr. Bowman was on the couch. Ms. Brittain pulled Mr. Bowman off the couch and onto the floor. While Mr. Bowman was lying on the floor Ms.

Mannella stepped forward and kicked Mr. Bowman in the head and the face. Ms. Mannella then challenged Ms. Brittain to a fight and Ms. Brittain told her that now was not the time. Ms. Brittain attempted to assist Mr.

Bowman and remained in the suite until the paramedics arrived. [ 87 ] On cross-examination, Ms. Brittain agreed she originally told the police that she was in the bathroom when she heard Mr. Furber say he had been stabbed. However, when Ms. Brittain spoke to the police the second time she had a clearer recollection that she was in the hallway when she heard Mr. Furber say he had been stabbed. [ 88 ] Ms. Brittain agreed on cross-examination that there were multiple times where Ms. Brittain and her friends tried to get rid of the accused. Ms. Brittain does not recall what steps had been taken in this regard.

Mitchell Furber [ 89 ] Mr. Furber was at the bar with people from his work. He does not recall seeing or interacting with the accused while at the bar. From the bar Mr. Furber travelled by taxi with Mr Aguirre, Mr. Zarai and Mr. Harding to the apartment where Mr. Zarai and Mr. Harding lived. [ 90 ] After being at the apartment for about 20 minutes, Mr. Furber went out to the balcony and spoke with Mr. Harding who was having a cigarette. While on the balcony Mr.

Furber heard a commotion from within the suite so he looked inside towards the kitchen which was to his right and he saw the accused grab a pan and with an over hand swing strike Mr. Bowman on the head. The strike looked like it almost knocked Mr. Bowman out. Mr. Bowman started to go down and Mr. Bowman reached out and grabbed the accused’s arms thus preventing the accused from striking him again. Mr. Furber felt that Mr. Bowman was injured as he appeared dazed and he was bleeding from his head. [ 91 ] At the time that Mr. Bowman was struck there were others in the immediate area but Mr.

Furber does not recall who, or what they were doing. When Mr. Furber made his observations he had a clear unobstructed view of the upper portion of Mr. Bowman and the accused; however, the lower portions of their bodies were blocked by the island separating the kitchen from the living room. [ 92 ] Based on what he had observed, Mr. Furber turned his attention to Mr. Harding and indicated to him that there was a was a melee in the kitchen and Mr. Bowman had been hit and that Mr. Harding should do something about it. Mr. Harding did not take any action and the two remained on the balcony. [ 93 ] Mr.

Furber’s next observation was made from the balcony and through the glass door. From there he saw the accused and Mr. Bowman to the left of the balcony door and in the living room. The accused was over top of Mr. Bowman and punching him in the face and torso. Mr. Furber described it as a “ground and pound”. [ 94 ] Ms. Brittain then moved towards the accused and tried pulling him off of Mr. Bowman. At this stage, Mr. Bowman was on the ground and almost unconscious. While watching what was going on Mr. Furber saw Ms. Mannella move towards Ms.

Brittain with her arm up over her head while holding what he thought was a vase. Mr. Furber’s view became partially obstructed by a concrete pillar. His next observations were the sound of breaking glass and seeing glass fragments. [ 95 ] Mr. Furber next recalls seeing the accused pinning Mr. Bowman up against the window and throwing more punches. Mr. Furber described Mr. Bowman as having noodle legs, bleeding and being “more or less” unconscious. Mr. Furber felt that Mr. Bowman was really injured and brutalized. The accused then stopped punching Mr.

Bowman and backed up thus creating a space between them. [ 96 ] Mr. Furber exited the balcony into the living room and stood between the accused and Mr. Bowman. He faced the accused, raised his hands to chest level with his palms out and up. At this point, the accused stepped backwards, and with his right hand reached into his pocket, withdrew it, and then extended it directly forward stabbing Mr. Furber in his left thigh. Mr. Furber looked down and he saw that the knife used by the accused was black about 6 inches and that it looked like a hunter’s knife. [ 97 ] Mr. Furber was in shock.

He indicated he had not threatened the accused, he had not punched the accused and he had never spoken to him in his life. [ 98 ] After being stabbed, Mr. Furber moved to his right and immediately went to the ground. He described how he was bleeding heavily and how he could see his muscle coming out of his leg. As Mr. Furber sat on the ground he looked up and he could see Mr. Bowman and the back of the accused. He saw the accused use his left forearm and brace it against Mr. Bowman’s upper chest neck region and pin him against the window. The accused then used his right hand and stabbed Mr.

Bowman 3 times on the left side of his body. At the point that Mr. Bowman was stabbed, Mr. Aguirre was at Mr. Furber’s side helping Mr. Furber. [ 99 ] Mr. Furber recalled that Mr. Zarai was near the kitchen when Mr. Bowman was stabbed. He recalls Mr. Zarai yelling at the accused telling him to leave. Also in the area was Ms. Warren, who according to Mr. Furber was in the area of the door way near the kitchen island. [ 100 ] On being stabbed, Mr. Bowman went to the ground with his arm over his head. Mr. Furber thought that Mr. Bowman was dead.

Everyone in the apartment was frantic and there was a lot of screaming and yelling. Mr. Aguirre and Mr. Taggar stepped forward to help Mr. Furber. Prior to leaving the apartment Mr. Furber saw the accused run towards the exit. Shortly thereafter, Mr. Aguirre and Mr. Tagger carried Mr. Furber out of the apartment and to the front lobby where they waited for the ambulance. During this time Mr. Furber was in and out of consciousness. [ 101 ] During cross-examination, counsel took Mr. Furber to a statement he had given to the police. While responding to questions regarding his statement, Mr.

Furber indicated he questioned the correctness of the transcribed statement and pointed out that the officer should not have taken his statement when he did because Mr. Furber was under the influence of morphine. [ 102 ] With the above in mind, the audio recorded statement was played in Court. The purpose of playing the statement was to confirm its accuracy and to provide the court with an opportunity to hear how lucid Mr. Furber was when the statement was made.

[ 103 ] After the audio was played, Mr. Furber confirmed it was correct and with the agreement of counsel the audio recording and the associated transcript were filed as an exhibit. Of note is the statement is not evidence of the truth of the contents; rather, it is evidence related to Mr. Furber’s state of mind at the time the statement was made. [ 104 ] During cross-examination, Mr. Furber testified he did not place his hands on the accused. He was then taken to a portion of his statement where he stated he had placed himself between the accused and Mr. Bowman and that he had placed his hands on the accused.

Upon reading the relevant portion of his statement, Mr. Furber remained consistent with his testimony in that he did not touch the accused. [ 105 ] Counsel also took Mr. Furber to a portion of his statement where he told the officer that a bunch of people wanted to fight. Mr. Furber acknowledged that is what he told the officer, however, he confirmed he did not see this. [ 106 ] Mr. Furber also confirmed he told the officer that Navi wanted to fight the accused. Mr. Furber testified that his statement was incorrect and that he did not see this happen.

He also does not know why he told the officer that others wanted to fight the accused as Mr. Furber never saw this. [ 107 ] As for words used during his direct testimony, counsel suggested to Mr. Furber that he never mentioned to the Crown, or to the police that, Mr. Bowman was in grave danger, that he was like a zombie or that he had noodle legs. Nor, did he explain why he stepped in between Mr. Bowman and the accused. Mr. Furber agreed that he had not previously used the terms mentioned. [ 108 ] As for the portion of his statement where Mr. Furber told the officer that he saw a couple of fights occur, Mr.

Furber agreed that what he saw were fights between Ms. Brittain and Ms. Mannella. [ 109 ] As for what was occurring in the kitchen between Mr. Bowman and the accused, Mr. Furber described it as grappling with back and forth. Mr. Furber stated he never saw Mr. Bowman pin the accused against the wall in the kitchen and that he (Mr. Furber) never helped pin the accused in the kitchen. [ 110 ] Mr. Furber confirmed in his statement he told the officer that he saw the accused push Ms. Guimond. Mr.

Furber explained that he did not actually see this happen; rather, he thinks this is what someone told him or something that he might have over heard. [ 111 ] Counsel for the accused pointed out to Mr. Furber that his statement did not contain any indication that Mr. Bowman had difficulty standing just after he was struck with the pan. In response, Mr. Furber pointed to the portion of his statement where he stated, “John actually did stay on his feet.” According to Mr. Furber this was his way of indicating that Mr.

Bowman was unsteady on his feet after having being hit with the pan. [ 112 ] Despite being challenged on cross-examination, Mr. Furber maintained he saw the accused stab Mr. Bowman and he confirmed he had no memory of other people trying to get the accused out of the apartment. [ 113 ] Mr. Furber was challenged on when he first realized he got stabbed. In his direct evidence, Mr. Furber indicated he saw the knife immediately prior to being stabbed and in his statement to the police he suggested he realized it only after he had been stabbed. Mr.

Furber clarified this apparent conflict by saying he knew he had been stabbed when he looked down and saw the knife in his leg. [ 114 ] While listening to the audio recording of Mr. Furber’s statement to the police I note; Mr. Furber’s speech was slurred, at times he spoke quickly and on other occasions he spoke slowly. Further, on occasion, Mr. Furber appeared confused. Examples include; he started to spell “Jeannelle” as “B-I”, he originally described the events as happening in Burnaby, he did not know what year it was and on one occasion he spoke about the people like they were players on a sports team.

I also observed that Mr. Furber would trail off mid- sentence and he lose direction. [ 115 ] With respect to Mr. Furber’s physical condition at the time of the statement, I noted an occasion where he spoke of the pain that he was feeling and another occasion where he commented, in what sounded like discomfort, as he observed his leg muscle twitching. [ 116 ] In all of the circumstances, I am satisfied that Mr. Furber’s cognitive abilities were less than ideal when he gave his statement. Accordingly, I approach those areas where his statement conflicts with his evidence with great caution. Hanna Warren [ 117 ] Ms.

Warren went to the bar to meet people from her work. Ms. Warren arrived between 8:30 - 8:45. Also present was her then boyfriend, Mr. Marcel Raynard. [ 118 ] While at the bar, Ms. Warren came to believe that the accused’s name was Antonio. As for her interaction with the accused, Mr. Warren testified that when she was at the bar the accused came up behind her and touched her inappropriately. In response Ms. Warren asked him not to touch her. Ms. Warren felt that the accused was creepy and not a nice person. Ms. Warren told either Mr. Taggar or Mr.

Zarai or both of them about what had happened. [ 119 ] After having been at the bar for a while, the group left the bar and started walking to an apartment where there was going to be further socializing. As the group walked Ms. Warren noticed the accused walking behind the group. Ms. Warren overheard Mr. Bowman ask the accused not to come. Ms. Warren also told the accused that they did not want him to come. She explained that he was creepy and the group was not comfortable. Despite these comments the accused continued to follow the group to the apartment. [ 120 ] Once at the apartment, Ms.

Warren continued to have the impression that everyone except Ms. Mannella was uncomfortable with the accused’s presence. At one point Ms. Mannella started arguing with Ms. Brittain. Seeing that Adrienne Harding was uncomfortable with what was going on Ms. Warren took Mr. Harding into a bedroom where Mr. Bowman and the accused were speaking.

[ 121 ] Ms. Warren watched as Mr. Bowman tried to calm the accused down. It was Ms. Warren’s impression that the accused was agitated. Mr. Bowman was saying to the accused that he had to leave because people were upset that he was there. At one stage the accused went to leave the bedroom and Mr. Bowman stopped him and told him he could not go into the living room and that he could only leave the apartment. [ 122 ] In an effort to leave the bedroom the accused went towards the door. Mr. Bowman held the accused’s shoulder and the accused said he was leaving while pushing against Mr. Bowman. Ms.

Warren felt the accused was aggressive because he was yelling and pushing against Mr. Bowman. During this interaction, Ms. Warren felt that Mr. Bowman was speaking softly and he appeared friendly. Ms. Warren did not see the accused thank Mr. Bowman. [ 123 ] Ms. Warren eventually left the bedroom and she took Mr. Harding to the balcony where they could have a cigarette. Ms. Warren does not recall if anyone else joined them on the balcony. While on the balcony Ms. Warren could hear people starting to fight in the kitchen and she told Mr.

Harding to wait on the balcony while she went back inside. [ 124 ] Once inside, Ms. Warren saw the accused and Mr. Bowman fighting in the kitchen. She saw they had their arms locked around each other’s shoulders and that the accused was head-butting Mr. Bowman and punching the back of his head. According to Ms. Warren it was chaos and people were trying to separate them. Ms. Warren recalls Mr. Zarai, Mr. Taggar and Ms. Brittain as being involved. She does not recall if Mr. Aguirre was there. [ 125 ] Ms. Warren noticed blood coming from Mr. Bowman’s head and she moved in to separate the pair.

In the process of doing this the two men knocked her out of the way. Mr. Zarai approached Ms. Warren and removed her from the area taking her to his bedroom. [ 126 ] Ms. Warren was in Mr. Zarai’s bedroom for about 5-10 minutes when she heard Mr. Furber yell he had been stabbed. Ms. Warren exited the bedroom and she saw Mr. Furber on the ground in the area right beside the entrance to Mr. Harding’s room. Mr. Furber had blood on his jeans. [ 127 ] She could see Ms. Brittain and Ms. Mannella fighting. Ms. Warren testified that the two were fighting in the area between the couch and the balcony doors.

According to Ms. Warren, she saw Ms. Mannella break a brown bottle over Ms. Brittain’s head. Ms. Warren also saw Mr. Bowman who was on the ground wedged between the baseboard near the wall, curled up with his hands over his head and not moving. Directly adjacent to Mr. Bowman was the accused. Ms. Warren watched as the accused stomped down on Mr. Bowman’s head. It was at this point that Ms. Warren noticed blood on the accused’s hands. [ 128 ] Ms. Warren stepped forward yelled at the accused telling him that he needed to leave and she asked what he was doing.

The accused did not say anything rather he stepped toward her and she noticed what she believed to be a mostly black knife about 5 inches long in his right hand. According to Ms. Warren, the accused was moving quickly and his right hand was extended. Ms. Warren feared for her life and she retreated to Mr. Zarai’s room. [ 129 ] While in Mr. Zarai’s room Ms. Warren tried phoning Mr. Raynard and while she was doing this she heard Mr. Raynard enter the suite. Ms. Warren therefore left the bedroom, and when she saw Mr. Raynard told him to call 911.

She then saw the accused from a distance of about 5 feet and she noticed he had his hands out with his palms up. Ms. Warren felt he had more blood on his hands. The accused then walked quickly down the hallway towards the door and she assumes he left the suite. [ 130 ] According to Ms. Warren the accused did not have any obvious injury nor did he appear to have difficulty walking. [ 131 ] When cross-examined, Ms. Warren testified that she did not see Ms. Mannella kick Mr. Bowman in the head, nor, does she recall telling this to the police officer that questioned her. Cst. Tefenkdjian [ 132 ] Cst.

Tefenkdjian was dispatched to the report of a fight at a Vancouver apartment building. When Cst. Tefenkdjian arrived he saw three males in the lobby. He later identified one of the males as Mr. Furber and he observed that Mr. Furber was injured. [ 133 ] Cst. Tefenkdjian made his way to a suite on the 7 th floor. Once inside the suite Cst. Tefenkdjian noticed that there were about 6 people inside and that the main living area was incomplete disarray. In this regard there was broken glass, blood throughout, and that the furniture appeared to have been moved.

A male was lying in the middle of the floor and it appeared that he had been stabbed. [ 134 ] Cst. Tefenkdjian was delegated to speak to a female who was later identified as Ms. Warren. During cross-examination Cst. Tefenkdjian confirmed that Ms. Warren had told him that she saw Ms. Mannella and the accused stomp on Mr. Bowman’s head. CREDIBILITY AND RELIABILITY OBSERVATIONS [ 135 ] I have carefully considered the evidence of each witness. I conclude, all of the witnesses were credible and they were doing their best to convey what they saw and what they heard on the night in issue.

It is clear there are significant inconsistencies between many of the witnesses. In my view this speaks to the chaos of the evening, the dynamics of the altercations, the trauma and likely the alcohol consumed. Some of the significant inconsistencies are as follows: • Mr. Aguirre testified that he was freeing Ms. Brittain from Ms. Mannella’s grasp when Mr. Furber stated he had been stabbed. In contrast, Ms. Brittain testified she was outside of the apartment when she heard Mr. Furber say he had been stabbed. • Mr. Furber testified that he was not involved in the altercation that occurred in the kitchen.

This is in contrast to the evidence of Mr. Bowman, and Mr. Aguirre who both placed Mr. Furber in the kitchen and assisting during the altercation. • Mr. Furber testified that he did not touch the accused. In contrast, Mr. Aguirre testified that Mr. Furber grabbed the accused from behind and was pulling him.

• Ms. Guimond testified that the accused shoved her when she was in Mr. Harding’s bedroom. In contrast, Mr. Topsy testified thatthis occurred in hallway just outside of Mr. Zarai’s bedroom. • Ms. Warren testified that the accused stomped on Mr. Bowman’s head prior to fleeing the apartment. In contrast, Mr. Aguirretestified that the accused jumped over Mr. Bowman and then he fled the apartment. • Ms. Brittain testified that Mr. Topsy was the person that forced Ms. Mannella to release her hair. In contrast, Mr. Aguirre testifiedthat he freed Ms. Brittain from Ms. Mannella’s grasp. • Mr.

Topsy testified to the accused turning away and suddenly turning back to punch Mr. Topsy. In contrast, Ms. Guimond and Mr.Aguirre have the two facing each other immediately before and during the punch. [136] The above documents some of the significant inconsistencies. Despite not having documented all of the inconsistencies, I haveconsidered all of the evidence and I remind myself that a trier of fact can accept all, some or none of what a witness has said: R. v. D.A.I.2012 SCC 5 , [2012] 1 S.C.R. 149. LEGAL PRINCIPLES a. The presumption of innocence [137] The accused is presumed to be innocent.

This presumption is fundamental and integral to our criminal law. The import of thepresumption of innocence and its relation to the criminal law was discussed in R. v. Oakes, (SCC), [1986] 1 SCR 103, atparagraphs 29-31, Chief Justice Dickson, (as he then was) wrote: 29. The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s.11 (

d) of the Charter , the presumption of innocence is referable and integral to the general protection of life, liberty and security of theperson contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, per Lamer J.) Thepresumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminalconduct.

An individual charged with a criminal offence faces grave social and personal consequences, including potential loss ofphysical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economicharms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves anaccused's guilt beyond all reasonable doubt, he or she is innocent.

This is essential in a society committed to fairness and social justice.The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abidingmembers of the community until proven otherwise. 30. The presumption of innocence has enjoyed longstanding recognition at common law. In the leading case, Woolmington v.

Directorof Public Prosecutions, [1935] A.C. 462 (H.L.), Viscount Sankey wrote at pp. 481-82: Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to provethe prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.

If, at theend of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner,as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner isentitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of theprisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Subsequent Canadian cases have cited the Woolmington principle with approval (see, for example, Manchuk v. The King, (SCC), [1938] S.C.R. 341, at p. 349; R. v. City of Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299, at p. 1316). 31. Further evidence of the widespread acceptance of the principle of the presumption of innocence is its inclusion in the majorinternational human rights documents.

Article 11(

I) of the Universal Declaration of Human Rights, adopted December 10, 1948 by theGeneral Assembly of the United Nations, provides:

Article 11 I. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial atwhich he has had all the guarantees necessary for his defence. In the International Covenant on Civil and Political Rights, 1966, art. 14(2) states:

Article 14 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. Canada acceded to this Covenant, and the Optional Protocol which sets up machinery for implementing the Covenant, on May 19, 1976.Both came into effect on August 19, 1976. 32. In light of the above, the right to be presumed innocent until proven guilty requires that s. 11 (

d) have, at a minimum, the followingcontent. First, an individual must be proven guilty beyond a reasonable doubt. Second, it is the State which must bear the burden ofproof. As Lamer J. stated in Dubois v. The Queen, (SCC), [1985] 2 S.C.R. 350, at p. 357:

Section 11 (

d) imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making outthe case against the accused before he or she need respond, either by testifying or calling other evidence. Third, criminal prosecutions must be carried out in accordance with lawful procedures and fairness. The latter part of s. 11 (d), whichrequires the proof of guilt "according to law in a fair and public hearing by an independent and impartial tribunal", underlines the

importance of this procedural requirement. b. Proof beyond a reasonable doubt [138] As indicated above, a finding of guilt can only be made once the trier of fact is satisfied that the evidence proves the accused’sguilt beyond a reasonable doubt. The onus is on the Crown to prove the accused’s guilt and the onus never shifts to the accused. [139] A reasonable doubt must be based on reason and common sense, it must not be based upon sympathy or prejudice and it must berationally connected to the evidence or lack of evidence.

I am reminded that the Crown does not have to prove the accused’s guilt toabsolute certainty, nevertheless, it is not sufficient to find an accused guilty based upon a strongly held belief or a strong suspicion thatthe accused is likely guilty; rather proof beyond a reasonable doubt is the only acceptable standard: R v. Lifchus, (SCC), [1997] 3 S.C.R. 320 and R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144. ANALYSIS Count 6 - Assault of Jeannelle Guimond [140] It is alleged that accused assaulted Ms. Guimond by shoving her with his forearm. Ms. Guimond and Mr. Topsy were the onlywitnesses to this allegation.

The Crown argues the evidence of Ms. Guimond and Mr. Topsy proves the accused’s guilt beyond areasonable doubt. The defense argues the evidence of Ms. Guimond and Mr. Topsy contains significant inconsistencies and is sounreliable that this court cannot confidently conclude beyond a reasonable doubt that the accused assaulted Ms. Guimond. [141] After considering all of the evidence, I reject the evidence of Mr. Topsy as it relates to the assault of Ms. Guimond. I do sobecause, when Mr. Topsy made his observations he was in the midst of a group within the kitchen and therefore likely distracted.

Moreover, his evidence was not clear on whether he actually saw contact or simply saw what he believed to be contact. [142] With respect to Ms. Guimond’s evidence and bearing in mind the minor inconsistencies, I found her to be a credible witness whowas reliable as it related to the accused shoving her with his forearm. As such, I find that the Crown has proved beyond a reasonabledoubt that, while Ms. Guimond was in Mr.

Harding’s bedroom that the accused told her to get out and then he intentionally shoved herwith his forearm. [143] After considering all of the evidence, I am satisfied beyond a reasonable doubt that the accused is guilty of assaulting Ms.Guimond. Count 5 - Assault of Jatin Topsy [144] This count relates to an allegation that the accused assaulted Mr. Topsy by punching him in the jaw. In her submissions theCrown invited the Court to dismiss this allegation. When questioned by the Court, the Crown explained that in her view the evidenceestablished a reasonable possibility that Mr.

Topsy was consenting to a fight and/or the evidenced established that the accusedreasonably and honestly believed that Mr. Topsy was consenting to a fight. [145] The defence joins the Crown on the issue of consent and if the Court declines to dismiss the charge, counsel for the accusedargues the evidence of the three witnesses is so riddled with inconsistencies that the Court cannot be satisfied beyond a reasonable doubtthat Mr. Topsy was assaulted. In the alternative, counsel argues if the Court finds that the accused punched Mr.

Topsy then counselssubmits there is evidence upon which the Court could find that the accused was acting in self-defence. [146] As to the inconsistencies, I agree with counsel for the accused that there are some inconsistencies on the mechanics of thepunch. Specifically, Mr. Topsy testified the accused turned and feigned walking away only to spin around and strike Mr. Topsy in thejaw. In contrast, Ms. Guimond and Mr. Aguirre testified that the accused and Mr. Topsy were facing each other when the accusedsuddenly punched Mr. Topsy. [147] In the circumstances, I accept the evidence of Ms. Guimond and Mr.

Aguirre over that of Mr. Topsy. I do so because Ms.Guimond and Mr. Aguirre were in good positions to observe what transpired further, they were not immediately involved, and finallythey remained consistent on the mechanics of the punch. As such, I find that Mr. Topsy was angry when he approached the accused andasked why the accused had pushed Ms. Guimond and that the accused responded by asking what Mr. Topsy was going to do about it. Mr. Topsy then responded with, “You will see what happens.” Immediately thereafter and while the accused and Mr. Topsy were facingeach other, and with Mr.

Topsy having his hands down by his sides, the accused suddenly and without warning punched Mr. Topsy inthe jaw. [148] With respect to the issue of consent, I have considered all of the evidence and I decline to dismiss the allegation. I find theevidence proves beyond a reasonable doubt that Mr. Topsy did not consent to a fight, nor do I see any evidence to support the notion thatthe accused honestly and reasonably believed that Mr. Topsy was consenting to a fight. [149] In determining the issue of consent, I accept Mr.

Topsy’s evidence that he did not consent to a fight, that he did not threaten theaccused, that he was angry when he approached the accused, that his hands were at his sides and he was prepared to show the accusedthat if the accused made the first move that he would not back down. [150] From the above evidence, it is clear that Mr. Topsy did not consent to a fight. As for Mr. Topsy’s comments in cross-examination that he would not back down if the accused made the first move, there was no evidence suggesting that the accused wasaware of Mr.

Topsy’s thought process, moreover, even if the accused was aware, such a view is not a consent to a fight and isambiguous. As such, and while considering all of the evidence including the nature of the punch which was a sudden unexpected striketo the face, I am unable to find any evidence to support the idea that the accused honestly and reasonably believed that Mr. Topsy wasconsenting to a fight.

[ 151 ] The final issue raised by counsel for the accused was self-defence.

Section 34 of the Criminal Code reads: 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.

No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 152 ] In the circumstances of the instant matter, there is simply no evidence which would support a finding that the accused reasonably believed that Mr. Topsy was about to assault him. Specifically, Mr.

Topsy simply walked up to the accused to confront him over the shove to Ms. Guimond. Mr. Topsy did not threaten the accused, he did not raise his hands towards the accused; rather, he engaged in dialogue. Simply stated, when I consider all of the evidence, I fail to see how the accused could have reasonably believed that he was about to be assaulted. [ 153 ] For the above reasons, I am satisfied beyond a reasonable doubt that the accused is guilty of assaulting Mr. Topsy.

Count 2 - Aggravated Assault of Mitchell Furber & Count 4 - Assault of Mitchell Furber with a weapon [ 154 ] These counts relate to allegations that the accused stabbed Mr. Furber in the thigh with a knife and wounding him. [ 155 ] The Crown argues Mr. Furber’s evidence regarding being stabbed was reliable and credible. In this regard, the Crown submits that Mr. Furber’s evidence was clear and concise with minor collateral inconsistencies. The Crown also points out that Mr. Furber’s evidence, the context of the events, and the evidence of Mr.

Aguirre prove the accused’s guilt beyond a reasonable doubt. [ 156 ] Counsel for the accused argues the evidence of all of the witnesses is so inconsistent that the Court cannot conclude beyond a reasonable doubt that the accused stabbed Mr. Furber. In the alternative, counsel asks the court to consider if the evidence raises the possibility that the accused was acting in self-defence. [ 157 ] I recognize that Mr. Furber’s evidence was inconsistent with his statement and with the evidence of other witnesses. Specifically, he testified that he stepped between Mr.

Bowman and the accused without touching the accused. In contrast, Mr. Aguirre testified that Mr. Furber was pulling the accused from behind just before the stabbing. Despite this inconsistency, I accept Mr. Furber’s evidence that he was facing the accused and he saw the accused stab him in his left thigh. [ 158 ] In accepting Mr. Furber’s evidence, I note immediately before the stabbing Mr. Aguirre saw the accused and Mr. Furber in close proximity to each other, and then shortly thereafter he heard Mr. Furber scream that he had been stabbed and this caused Mr. Aguirre to look in the direction of Mr.

Furber and at that point he saw the accused with a knife that had blood on it. [ 159 ] Finally, I also note there is no evidence that Mr. Furber was in conflict with and any of the other guests, and there is no evidence of anyone other than the accused possessing a knife. Accordingly, and after considering all of the evidence that I accept, I am satisfied beyond a reasonable doubt that the accused stabbed Mr. Furber with a knife and thereby wounding Mr. Furber’s thigh.

[ 160 ] On the issue of self-defence, I have considered s. 34 of Criminal Code , and I conclude that it would not be reasonable for the accused to have formed the belief that he needed to protect himself from Mr. Furber, and if I am incorrect, then I conclude the act of stabbing Mr. Furber was not reasonable in the circumstances. [ 161 ] I reject the justification of self-defence for the following reasons; Mr. Furber did not strike the accused, Mr. Furber did not threaten the accused, Mr. Furber was not in possession of a weapon, there was limited history between Mr.

Furber and the accused, and finally, the accused had an option of leaving the suite. [ 162 ] For the above reasons I am satisfied beyond a reasonable doubt that the accused assaulted Mr. Furber with a weapon and thereby wounding him. Accordingly, I find the accused guilty of count 2 and count 4. Count 1 - Aggravated Assault of John Bowman & Count 3 - Assault of John Bowman with a weapon [ 163 ] These counts relate to allegations that the accused stabbed Mr. Bowman with a knife; thereby causing injuries that endangered Mr. Bowman’s life. [ 164 ] The Crown argues the evidence of Ms. Bowman, Mr. Furber and Mr.

Aguirre prove beyond a reasonable doubt that the accused committed the offences as alleged. The Crown acknowledges some differences between the three witnesses and between the other witnesses that testified. [ 165 ] Counsel for the accused argues after examining all of the evidence this court cannot be satisfied beyond a reasonable doubt that the accused was involved in the stabbing of Mr. Bowman. In support, Counsel points to the number of inconsistencies that exist between all of the witnesses. [ 166 ] I have carefully considered all of the evidence.

I acknowledge there are inconsistencies; however, based on the evidence that I accept I am satisfied beyond a reasonable doubt that the accused committed the offences alleged in counts 1 and 3. [ 167 ] Evidence which is significant to my decision included; no one at the party, but the accused, had any animosity towards Mr. Bowman. Further, Mr. Bowman testified that he was involved in a physical altercation with the accused immediately before feeling the sharp pains (pains which were likely the result of being stabbed). Further, Mr.

Furber’s evidence wherein he testified that while sitting on the floor and only a few feet away, that he saw the accused stab Mr. Bowman, and finally, the evidence of Mr. Aguirre who saw the accused in possession of a knife and in the immediate vicinity of Mr. Bowman as Mr. Bowman fell forward onto the ground. [ 168 ] As to the justification of self-defence, I have considered s. 34 of the Criminal Code as set out above. I accept that Mr. Bowman had been engaged in a fight prior to the stabbing, however, based on Mr. Furber’s evidence it was clear that when the accused stabbed Mr. Bowman that Mr.

Bowman was so incapacitated that the fight had ended and there was no realistic chance that Mr. Bowman could recommence fighting. I also observe, Mr. Bowman did not have a weapon and there were several opportunities for the accused to leave the suite. [ 169 ] In the circumstances, there is no evidence to support a possibility that the accused reasonably believed that he need to defend himself, and that stabbing Mr. Bowman five times was reasonable in all of the circumstances. [ 170 ] Accordingly, I find the accused guilty of Counts 2 and 3. ____________________________ The Honourable Judge R.P.

Harris Provincial Court of British Columbia