R. v. Williams Date:, 2017 BCPC 296

Citation: R. v. Williams Date: 20170927 2017 BCPC 296 File No: 24662-1-K Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYLER NICHOLAS GARY WILLIAMS REASONS FOR JUDGMENT OF HONOURABLE JUDGE J. T. DOULIS Counsel for the Crown: M. Crisp Counsel for the Defendant: C. Joseph Place of Hearing: Hazelton , B.C. Date of Hearing: July 6 and 7, 2017 Date of Judgment: September 27, 2017 [ 1 ] By way of Information 24662-1-K, the accused, Tyler Nicholas Gary Williams, is charged as follows: Count 1 : assaulting T.M., contrary to s. 266 of the Criminal Code ; and Count 2: uttering threats to T.M. to cause death or bodily harm contrary to s. 264.1 of the Criminal Code ;

[ 2 ] All offences charged are alleged to have occurred on March 13, 2017, in Gitwangax, B.C. [ 3 ] Mr. Williams and T.M. were in a brief, but intense relationship between January 30, 2017 and March 13, 2017. On March 13, 2017, Mr. Williams and T.M. began to argue from the moment they awoke. As they had spent the night at Mr. Williams’ residence in Gitwangax, T.M. wanted to leave and return to her home in Gitanyow. Their argument escalated. At one point T.M.’s television ended up on the floor and at another time a can of pop spilled on an Xbox belonging to Mr. Williams’ family.

T.M. said during this altercation, Mr. Williams choked and threatened her. Mr. Williams denied choking T.M. or threatening to harm her if she left. [ 4 ] I heard the trial of this matter on July 6 and 7, 2017. The Crown called two witnesses: Constable Eric Unrau and T.M. The Defence called Tyler Williams. On July 7, 2017, Crown provided the Court with the following authorities, all of which I have reviewed and considered: R. v. C. (T.E.), 2015 BCCA 43 ; R. v. Denneault , 2002 BCCA 178 ; R. v. D.(M.), 2010 BCCA 162 ; R. v. Greenley, 2017 ABPC 148 ; R. v. Moore, 2015 BCPC 182 .

This is my decision and reason for judgment. Issues [ 5 ] The sole issue in this case is the credibility of the complainant and the accused. Ultimately, it is one of “he said, she said” with no corroborating evidence on disputed facts. Background Facts [ 6 ] Mr. Williams is 24 years old. On the offence date he had recently returned from living in Vancouver to reside at his father’s home in Gitwangax. [ 7 ] T.M. is 20 years old. On the offence date she lived sometimes in Gitanyow with her mother and sometimes with Mr. Williams in Gitwangax. [ 8 ] T.M. and Mr. Williams met on Facebook on or about January 3, 2017.

Before meeting Mr. Williams, T.M. was friends with his sister. [ 9 ] By January 30, 2017, T.M. and Mr. Williams were in an intimate relationship. For six weeks, Mr. Williams and T.M. spent all day, every day together, initially at T.M.’s home in Gitanyow and then at Mr. Williams’ home in Gitwangax. [ 10 ] Within weeks of its formation, T.M. and Mr. Williams’ relationship became marred by episodic discord. T.M. claimed Mr. Williams was jealous and angry and she repeatedly tried to end the relationship. She said, “ I wasn’t allowed to look at his brother or talk to his brothers . . .

I was getting along with his younger sister though because I was friends with her first before Tyler.” [ 11 ] Mr. Williams describes T.M. as the one who was jealous and angry. He says in the month prior to the incident giving rise to the charges before the court, T.M. physically assaulted him on multiple occasions by slapping, punching and “sacking” him. [ 12 ] Mr. Williams says that beginning in mid-February 2017, T.M. physically assaulted him. When they argued late at night, T.M. tried leaving his residence intent on walking or hitchhiking to her home in Gitanyow.

She refused his offers and attempts to drive her home. Concerned for her safety, Mr. Williams tried stopping T.M. from leaving until she had a safe ride. T.M. resisted his efforts to stop her by punching, slapping or scratching him. Mr. Williams says T.M. “sacked” him too many times to count. By “sacking” he meant that she hit him in his private parts with her fists or legs. [ 13 ] T.M. denies ever having physically assaulted Mr. Williams before or on March 13, 2017. [ 14 ] On March 13, 2017, T.M. and Mr. Williams woke up about noon at Mr. Williams’ home in Gitwangax . They slept in his bedroom in the basement.

T.M. told Mr. Williams she wanted to leave. She grabbed Mr. Williams’ cell phone and called Norman, her mother’s boyfriend at the time, and asked him for a ride home. [ 15 ] While T.M. was making arrangements with Norman for a ride from Gitwangax to Gitanyow, Mr. Williams yanked the cell phone from her hand and terminated the call. [ 16 ] T.M. believed Mr. Williams was angry because she wanted to leave. T.M. was getting angry because Mr. Williams had terminated her telephone call. [ 17 ] T.M. began packing her clothes into her duffle bag. She thought if she left and created some space, then she and Mr.

Williams wouldn’t fight so much. [ 18 ] T.M. and Mr. Williams began to argue. Neither recalls the substance of the argument. T.M.’s Version of Events The Pop Incident [ 19 ] T.M.’s television was sitting on a TV stand which stood about 2.5 feet from the floor. She placed her duffle bag containing some of her belongings by the TV stand. She believes she swung her duffle bag in such a way as to knock over a pop can that was sitting on the TV stand. The pop spilled on the nearby Xbox which belonged to Mr. Williams’ family.

T.M. testified as follows: I didn’t know why he was freaking out so much but afterwards, he told me he thought some of my pop spilled on his Xbox. [ 20 ] Mr. Williams quickly retrieved the pop can. Angry, he poured its remaining contents into T.M.’s duffle bag then pushed the television off the TV stand onto the floor.

The Television Incident [ 21 ] Once he had pushed the television off its stand onto the floor, Mr. Williams began kicking at its screen. T.M. believed at the time Mr. Williams had broken the television, but that was not the case. While kicking the screen, Mr. Williams said, “Sometimes I wish this was your face.” These words made her feel “pretty shitty”. She told Mr. Williams he “was a fucking asshole” and she hated him. Mr.

Williams called her a “bitch” and a “cunt.” He told her, “You don’t know how much I want to beat the shit out of you.” T.M. broke down crying uncontrollably. [ 22 ] During all or part of this verbal altercation, T.M. was on her hands and knees gathering up her shirts which were on the floor by the bed. The Choking Incident [ 23 ] The arguing and name calling persisted. Mr. Williams walked “speedily” over to where T.M. was on her hands and knees collecting her shirts. He stood in front of her, spread his hands and placed them around her throat. His grip became tight and uncomfortable.

This choking lasted for only a few seconds, but to T.M., it felt much longer. T.M. stood up panic-stricken; she felt dizzy and unable to breathe. [ 24 ] T.M. asked Mr. Williams, “What the fuck was wrong with him.” T.M. did not consent to or do anything to cause Mr. Williams choking her. [ 25 ] Immediately following the choking incident, T.M. and Mr. Williams continued arguing and packing T.M.’s belongings. The Knife Incident [ 26 ] After the choking incident, Mr. Williams started picking up T.M.’s belongings and tossing them towards her.

He told her to “get the fuck out.” [ 27 ] When T.M.’s luggage was assembled by the front door, Mr. Williams “started becoming suicidal and he grabbed a broken knife.” [ 28 ] T.M. was on the stairway by the basement. She fell backwards from the stairway, and then Mr. Williams was in her face with the broken knife sawing at his throat. [ 29 ] Mr. Williams’ older brother walked in on the scene and asked him “what the fuck he was doing.” Soon Mr. Williams’ sisters also came downstairs. T.M. tried leaving and went outside, as did Mr. Williams, his brother and two sisters. [ 30 ] At first Mr.

Williams was just walking around with the broken knife sawing at his throat. Mr. Williams then turned the knife and pointed the blade at T.M. [ 31 ] Mr. Williams’ younger sister started crying, telling him to stop and to calm down. Mr. Williams’ older sister Ariel told everyone to calm down and “let it be” and let Mr. Williams and T.M. “figure it out.” Aftermath [ 32 ] T.M. left Mr. Williams’ residence and walked for about 15 minutes to the new clinic in Gitwangax.

She began hitchhiking and received a ride from Rhonda Williams who drove her back to her mother’s home in Gitanyow. [ 33 ] T.M. complained to the police who investigated the incident and took her audio-recorded statement. The ambulance arrived while T.M. was giving her statement. The attendants checked T.M. for injuries but did not take her to the hospital. T.M. was not injured and her throat did not hurt. [ 34 ] A day or so after providing a formal statement, T.M. called Constable Unrau and left him a message clarifying her earlier statement. She said her initial statement that Mr.

Williams chocked her for one to two minutes was an “obvious exaggeration.” He had only choked her for a couple of seconds, but it felt like one or two minutes. [ 35 ] Sometime later, T.M. called Constable Unrau advising him that she did not want Mr. Williams charged or placed on conditions. At that time T.M. “was all about Tyler” and “wasn’t thinking clearly.” They were “talking” and she “wanted to work things out.” [ 36 ] T.M. did not recant her original statement to Constable Unrau except to clarify the choking occurred for a matter of seconds rather than minutes. [ 37 ] T.M. sent Mr.

Williams a text on March 15, 2017, the day he was arrested and released on an Undertaking not to have any contact with T.M. Mr. Williams’ Version of Events [ 38 ] When they woke up on March 13, 2017, Mr. Williams and T.M. started to argue. He went to the bathroom to calm himself and to avoid the argument that was brewing. He could not recall what upset T.M. She punched him in the head three times. He tried to get away from her, but T.M. got in his way and wouldn’t let him leave the room. Mr. Williams testified, “I told her, “you can’t do this . . . I know she can’t stop me and I can’t stop her.” [ 39 ] Mr.

Williams and T.M. continued arguing. T.M. told him she was “going to leave and go home and pack her things.” The Television

[ 40 ] When T.M. told Mr. Williams she was going to leave and go home, he started gathering up her things and placing them by her duffle bag. He tried lifting her television and T.M. “kind of hit [his] arm a little bit.” The television fell out of his hands onto the floor. [ 41 ] Mr. Williams did not deny and was not asked in direct or cross-examination about kicking the television and saying to T.M., “sometimes I wish this was your face.” The Pop [ 42 ] T.M. grabbed a can of iced tea and threw it in Mr. Williams’ direction. Mr. Williams dodged the pop can and its liquid spilled onto the Xbox. Mr.

Williams said, “It wasn’t even mine. I was upset. I thought it was broken. I thought it was fried when all the liquid got on there.” [ 43 ] Mr. Williams became angry and poured the remaining contents of the pop can onto his and T.M.’s clothing that was piled in a nearby laundry basket. The Choking [ 44 ] Mr. Williams denies choking T.M. He admits he placed his hands on her shoulders on either side of her neck for less than five seconds in an effort to calm her down. While doing this, he told her “you can’t be doing this - you’ve got to calm yourself down.” [ 45 ] After Mr.

Williams removed his hands from T.M.’s shoulders, they continued arguing. Mr. Williams says it was at this point T.M. grabbed his phone and called home. Mr. Williams said: I grabbed it out of her hand because I thought she already had a ride so I hung up on it. That is when I brought her stuff to the door. [ 46 ] In cross-examination, Mr. Williams admitted he yanked the phone away from T.M. because he was upset. He said, “It is not that I didn’t want her to leave, I didn’t want her breaking up with me.” Mr. Williams wanted their relationship to continue.

He agreed the combination of T.M. wanting to leave and damaging the Xbox made him pretty upset. Mr. Williams also agreed he used his body to try and prevent T.M. from leaving, but denied applying any force. He also denied threatening to hurt her or himself if T.M. left. [ 47 ] Mr. Williams says that he and T.M. continued to argue while he brought her belongings to the door. She took everything but her television. Mr. Williams claims T.M. broke the television herself a week later by throwing it on the ground and stomping on it. Mr.

Williams tried to stop her, telling her, “You can’t do that, it is a really good TV.” She hit him and he let her go. She smashed the television to show Mr. Williams she was “done with [him].” [ 48 ] Mr. Williams did not deny and was not asked in direct or cross-examination if he said to T.M., “You don’t know how much I want to beat the shit out of you.” The Knife Incident [ 49 ] Mr. Williams says the knife incident occurred a week to ten days prior to March 13, 2017. He agrees he put a knife to his throat, but he did not do that on March 13, 2017, and he never pointed it at T.M. [ 50 ] Mr.

Williams was not home when the police arrived at his home on March 13, 2017. When he arrived home on March 15, 2017, he learned the police had been there and wanted to speak to him. He contacted the police and complied with their request he wait for them at his residence. He saw the police pull up and went outside to speak to them. He did not know they would arrest him. Aftermath [ 51 ] T.M. contacted Mr. Williams by Facebook on March 15, 2017, the day he was arrested for these offences and released on conditions. By that time T.M. had calmed down and apologized.

He said: She apologized to me because I knew the calm T. and I know the mad T. She is really stubborn. After she is mad and calms down she apologized how she acted. She apologized for everything that happened to me - arresting and what not - hitting me. [ 52 ] Mr. Williams and T.M. apologized to each other for whatever they said that got each other so upset. T.M. was initially undecided whether she wanted to continue their relationship, and then thought maybe they could work on it. [ 53 ] T.M. told Mr. Williams she wanted the charges against him dropped.

She also told him she had contacted Constable Unrau and he said they could be together and the police would drop all charges against Mr. Williams. [ 54 ] T.M. told Mr. Williams she was sorry for putting him through “this” and that she “over exaggerated” about him choking her. T.M. told him she had “an anxiety attack” which she now describes as a “panic attack.” Evidence of Constable Unrau [ 55 ] Constable Unrau was the investigating officer in this matter. The RCMP received T.M.’s complaint on March 13, 2017, at 2:30 p.m. Constable Unrau went to Mr.

Williams’ residence in Gitwangax at about 3:40 p.m. on March 13, 2017. Mr. Williams’ brother, Aaron Williams, invited him in. Constable Unrau surveyed the downstairs bedroom where Mr. Williams and T.M. had been arguing. He observed there was a bed and table and the television was on the floor. The room was fairly clean. There was no evidence of a disturbance or a fight such as overturned furniture. Mr. Williams was not at the residence at the time. [ 56 ] Constable Unrau met with T.M. in person on March 13, 2017. At the time, he did not notice any injury or anomaly to T.M.’s neck area then or later.

Constable Unrau said that in his experience choking leaves some redness, perhaps early stages of bruising, possibly scratch marks.

[57] Constable Unrau spoke to T.M. three times in relation to this matter. The first time was on March 13, 2017, when ConstableUnrau spoke to T.M. on the telephone. T.M. was distraught and crying. He told her about the lack of evidence, which T.M. accepted. [58] On March 15, 2017, the RCMP arrested Mr. Williams and released him on conditions, one of which prohibited from havingcontact with T.M. [59] Approximately a week after the incident, Constable Unrau received a message from T.M. She did not want to pursue chargesagainst Mr. Williams. She was fearful for him going to prison.

She wanted to continue her relationship with Mr. Williams. The Basic Legal Principles and the Offence [60] The Crown bears the burden of proof beyond a reasonable doubt. This standard of proof applies to each and every essentialelement of each offence. There is no burden of proof on Mr. Williams. He is presumed to be innocent of all charges: R. v. Lifchus, (SCC), [1997] 3 SCR 320, paragraph 13, cited in Greenley at para. 6; R. v.

Beauchamp, [2000] S.C.R. 720, paragraph 12. [61] Proof beyond a reasonable doubt is a standard higher than proof on a balance of probabilities, however, it does not involveproof of guilt to an absolute certainty. It is not proof beyond any doubt: Lifchus, paragraph 14, cited in Greenley at para. 6. Count 1: assault [62] Section 265(1)(

a) of the Criminal Code defines assault as follows: Any 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 onreasonable grounds, that he has, present ability to effect his purpose. [63] Assault is a general intent offence: R. v. Bernard, (SCC). In s. 265(1)(a), the word “intentionally” simplymeans “not done by accident or through honest mistake”: Dawydiuk, at para. 28 citing R. v. George, (SCC). The leasttouching of another person without their consent constitutes an assault: R. v.

C (T.E.), 2015 BCCA 43. [64] On Count 1, the charge of assaulting T.M. contrary to s. 266 of the Criminal Code, the Crown must prove the followingessential elements of the offence beyond a reasonable doubt: a. Mr. Williams applied force to T.M., the strength of which is immaterial; b. Mr. Williams intentionally applied the force; c. T.M. did not consent to the force Mr. Williams applied; and d. Mr. Williams knew that T.M. did not consent to the force he applied. Count 2: uttering threats to cause death or bodily harm [65]

Section 264.1 of the Criminal Code states: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; “Bodily harm” is defined in

section 2 of the Criminal Code to mean “any hurt or injury to a person that interferes with the health orcomfort of the person and that is more than merely transient or trifling in nature[.]” [66] The Supreme Court has considered this offence in R. v. McRae, 2013 SCC 68 , R. v. McCraw, (SCC),[1991] 3 S.C.R. 72, R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, and R. v. O'Brien, 2013 SCC 2 , [2013] 1S.C.R. 7. [67] The elements of the offence include: a. the utterance or conveyance of a threat to cause death or serious bodily harm (Clemente, at p. 763), and b. an intent to threaten. [68] In R. v.

McCraw, [1991] 3 SCR 72, (SCC), Cory J. for the Supreme Court of Canada considered the purpose ofthe offence of uttering threats: Parliament, in creating this offence recognized that the act of threatening permits a person uttering the threat to use intimidation in orderto achieve his or her objects. The threat need not be carried out; the offence is completed when the threat is made. It is designed tofacilitate the achievement of the goal sought by the issuer of the threat. A threat is a tool of intimidation which is designed to instill asense of fear in its recipient.

The aim and purpose of the offence is to protect against fear and intimidation. In enacting thesection Parliament was moving to protect personal freedom of choice and action, a matter of fundamental importance to members of ademocratic society.

Cited in Denneault, at para. 20 [69] In McRae, at paragraph 10, the Supreme Court said “The threats can be uttered, conveyed, or in any way caused to be receivedby any person.” Whether words, spoken or written, constitute a threat must be looked at objectively; that is, as it would be by theordinary reasonable person. In order to prove the wrongful act, the Crown must prove beyond a reasonable doubt that a reasonableperson would consider the words uttered by the accused a threat.

In McCrae, the court stated at para.16: [16] . . . the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances inwhich the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. [70] At para. 11, the court states: 11. The starting point of the analysis should always be the plain and ordinary meaning of the words uttered.

Where the words clearlyconstitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. [71] In order to prove the criminal intent, the Crown must prove beyond a reasonable doubt the accused intended the impugnedwords uttered or conveyed to be taken seriously or to intimidate. The Supreme Court in McCrae states at para. 23: [23] To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or tobe taken seriously.

It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard offault applies.

However, in order to determine what was in the accused’s mind, a court will often have to draw reasonable inferences fromthe words and the circumstances, including how the words were perceived by those hearing them. [72] In McCrae, at para. 24, the Supreme Court makes it clear that threats of violence are inherently violent and not a means ofcommunicating future violence: 24 . . . [I]t is not necessary to prove that the threats were conveyed to their intended recipients (prohibited act) or that the accusedintended the threats to be so conveyed (fault element).

Further, it is not necessary to prove that anyone was actually intimidated by thethreats (prohibited act) or that the accused specifically intended to intimidate anyone (fault element). The concept of the “closed circle”is therefore legally wrong. Threats are tools of intimidation and violence. As such, in any circumstance where threats are spoken withthe intent that they be taken seriously, even to third parties, the elements of the offence will be made out. [73] In R. v. Steele, 2014 SCC 61 , the Supreme Court reaffirms McCrae at para. 47: In other words, the act of threatening harm can itself be

an act of violence even if the threats are not conveyed to their intended recipientsor are not intended to be so conveyed, so long as they are intended to be taken seriously. [74] In R. v. Denneault, 2002 BCCA 178, the B.C. Court of Appeal adopted the Shorter Oxford English Dictionary definition of“threat” as follows: A denunciation to a person of ill to befall him: exp. a declaration of hostile determination or of loss, pain, punishment, or damage to beinflicted in retribution of or conditionally upon some course; a menace. [75] In Denneault, (at para. 25-26), Rowles J.A., for the appellate court, held that threats that are not imminent or are conditionalare also included in s. 264.1(1)(

a) of the Criminal Code. Citing R. v. Nabis, 1974, CanLII 179 (SCC), Rowles J.A. stated at para. 24:“whether the threat raises a possibility of imminent or remote danger is of no consequence.” Analysis Assessing reasonable doubt [76] In R. v. W.(D.), , the Supreme Court of Canada provided the trial Courts with an analytical framework to assessreasonable doubt in the context of conflicting testimony in a criminal trial. This test is reproduced in Greenley at paras. 7-12. Recently,Justice David M. Paciocco, in his paper, Doubt about Doubt: Coping with R. v.

W.(D.) and Credibility Assessment, recasts the W.(D.) testas follows: a. the trial judge who believes evidence that is inconsistent with the guilt of the accused cannot convict the accused; b. even if the trial judge does not entirely believe evidence inconsistent with guilt, if left unsure whether that evidence is true thereis a reasonable doubt and an acquittal must follow; c. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does notprove guilt; and d. even where the trial judge entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless theevidence that is given credit proves the accused guilty beyond a reasonable doubt.

Assessing Credibility and Reliability [77] Although there are many points of agreement between Mr. Williams and T.M., there are also significant points of disagreement. It is trite law that a judge can accept all, some or none of a witnesses’ evidence. In order to evaluate the evidence, I must assess itscredibility and reliability. [78] In order to assess the reliability of a witness’s evidence, I must assess his or her ability to perceive, recall and communicate theevidence.

[ 79 ] In order to assess the credibility of each witness, I have taken into consideration the following factors: (

a) the internal consistency with other parts of the witness's evidence given at trial ; (

b) the consistency of the witness’s account over time; (

c) the external consistency of the evidence with that of other credible witnesses; (

d) any independent physical or documentary evidence; (

e) the inherent plausibility of the evidence; (

f) the ”balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright; and (

g) to a lesser extent, the attitude and demeanour of the witness. Reliability [ 80 ] The incident giving rise to the charges before the Court occurred on March 13, 2017, less than four months before the trial. It occurred shortly after Mr. Williams and T.M. awoke around noon on March 13, 2017. Both were young, healthy, present and sober. I find all three witnesses in this trial were able to perceive, recall and communicate their evidence reasonably well.

Moreover, T.M. was able to refresh her memory from time to time with her prior statement to Constable Unrau given the day of the incident and Constable Unrau was able to refresh his memory from his police notes and Report to Crown Counsel. Credibility of Mr. Williams [ 81 ] Applying the factors cited above, I make the following findings with respect to Mr. Williams evidence at trial: a. Internal consistency: Mr. Williams’ evidence at trial was reasonably consistent. b. Consistency over time: The Crown adduced no prior out-of-court statement by Mr. Williams; therefore this factor is not in play. c.

External consistency: Mr. Williams’ evidence at trial is consistent with T.M.’s on a number of points, including the following:

i) T.M. and Mr. Williams’ relationship was brief, intense and fraught with discord; ii) T.M. and Mr. Williams were arguing since they awoke on March 13, 2017; iii) Mr. Williams only touched T.M. for five seconds or less; iv) T.M. “over exaggerated” the choking incident to the police as to its duration;

v) T.M. contacted Mr. Williams the day he was arrested and released (March 15, 2017); vi) T.M. wanted to reconcile with Mr. Williams and asked Constable Unrau to “drop the charges” against him; and vii) On a previous occasion, Mr. Williams had placed a knife to his throat in T.M.’s presence. d. External inconsistency: Mr. Williams’ evidence was inconsistent with that of T.M.’s with respect to the following:

i) how the pop came to be spilled on the Xbox; ii) where and how Mr. Williams’ touched T.M.; iii) Mr. Williams placing a knife to his throat on March 13, 2017; iv) T.M. punching Mr. Williams three times on March 13, 2017. e. Independent evidence: Constable Unrau provided the following independent evidence:

i) he observed the television on the floor and intact when he attended at the Williams residence shortly after T.M. had complained to the police; ii) Mr. Williams’ bedroom did not appear to have been disturbed by physical conflict; iii) he did not observe any bruises or marks or redness on T.M.’s neck when he saw her in the afternoon of March 13, 2017. f. Plausibility: Mr. Williams testified that when he first awoke he went the bathroom to avoid arguing and to calm himself down. He agrees that T.M. said she was leaving to go home and packed her things.

He claims she then punched him three times and stood in his way to stop him from leaving the room. T.M. denied punching Mr. Williams and was never asked whether she blocked his attempts to leave. It makes no sense to me that T.M., who was packing her belongings and trying to leave, would punch Mr. Williams three times and try to prohibit him from leaving the room. I find Mr. Williams’ claim that T.M. punched and prohibited him from leaving implausible. I also find implausible Mr. Williams’ claim he placed his hands on T.M.’s shoulders to calm her down. Both Mr.

Williams and T.M. agree they had been arguing since they awoke. Mr. Williams even went to the bathroom to try and calm himself down. After he emerges T.M. caused pop to be spilled on the Xbox, which he thought was fried. He became angry. Up until the time T.M. finally leaves Mr. Williams’ residence, they are still arguing. They exchange obscenities and personal invectives. Mr. Williams yanks the telephone away from T.M. as she is trying to arrange a ride home. I do not find it plausible that in the turmoil, Mr.

Williams took a five second hiatus to gently calm T.M. down and then abruptly resumed quarrelling until he told her to get out.

g. Balance: I am left with the impression that Mr. Williams cared deeply for T.M. and did not want their relationship to end. Still, I found his willingness to be fair and forthright wanting. For example:

i) Mr. Williams blamed T.M. for the previous violence in the relationship. He claimed she would attack him after a late night argument when he tried to prevent her from walking or hitching home. He offered no explanation as to the substance of those arguments giving rise to these altercations or what he did to prevent her from leaving; ii) Mr. Williams blamed T.M. for escalating the conflict on March 13, 2017, by punching him three times and blocking his attempts to leave; iii) Mr. Williams did not recall what they argued about or what it was that he said to upset her; iv) Mr. Williams blames T.M. for the pop spilled on the Xbox;

v) Mr. Williams blames T.M. for causing him to drop her television which he was carrying; vi) Mr. Williams also appears to hold T.M. responsible for rekindling their relationship after he had been charged; and vii) Mr. Williams, although four years older than her, blames T.M. for the problems in their relationship. h. Demeanour: There was nothing about Mr. Williams’ demeanour as a witness which detracts from his credibility. He was reasonably forthcoming and cooperative when testifying.

Credibility of T.M. [ 82 ] Applying the factors, cited above, I make the following findings with respect to T.M.’s evidence at trial: a. Internal consistency: T.M.’s evidence at trial was consistent both in her examination-in-chief and in cross-examination. b. Consistency over time: T.M.’s evidence at trial was inconsistent with her audio-recorded statement to Constable Unrau in the sequencing of certain aspects of the altercation. At trial T.M. ordered events as: (

a) firstly, the pop spilled Xbox; (

b) secondly, Mr. Williams pushed the television on the floor; and (

c) thirdly, Mr. Williams choked her. In her statement to Constable Unrau on March 13, 2017, T.M. sequenced the events as: (

a) firstly, the pop spilled on the Xbox; (

b) secondly, Mr. Williams choked her; and (

c) thirdly, Mr. Williams pushed her television on the floor. In light of Mr. Williams’ evidence that: (

a) pop was spilled on the Xbox; (

b) the television did fall to the floor; and (

c) he briefly placed his hands on T.M.’s shoulders on either side of her neck, I do not find the inconsistency between T.M.’s prior statement and her evidence at trial serious. Within a week of complaining to police about the incident giving rise to these charges, T.M. sought to reconcile with Mr. Williams. She told the police she wanted the charges against him dropped and she did not wish him placed on any conditions. Although she had corrected her evidence with respect to how long Mr. Williams gripped her neck, she never suggested the choking or the threats did not happen. c. External consistency: T.M.’s version of events was corroborated by Mr. Williams, who testified:

i) he and T.M. were arguing from the time they woke up on March 13, 2017; ii) he yanked the cell phone from her hands and terminated her call seeking a ride home; iii) T.M. caused pop to be spilled on the Xbox; iv) he became angry because he thought the Xbox was “fried”;

v) he poured the liquid from the pop can onto clothing; vi) he was moving T.M.’s television when it ended up on the floor; vii) he went over to her and placed his hands on her; viii) T.M. wanted to leave; ix) he helped T.M. gather her belongings;

x) he told T.M. to get out; xi) ten days to a week prior to March 13, 2017, he had held a knife to his throat and threatened suicide if she left him; xii) T.M. sought to reconcile with him after he was arrested and released on conditions; xiii) T.M. admitted to him she had “over exaggerated” the choking incident; and xiv) T.M. contacted Constable Unrau and asked to have the charges against Mr. Williams dropped. d. Independent evidence: Constable Unrau’s evidence corroborated T.M.’s evidence as follows:

i) when he spoke to T.M. on the telephone on March 13, 2017, T.M. was distraught, upset and crying;

ii) he observed T.M.’s the television on the floor of Mr. Williams’ bedroom on March 13, 2017, when he attended at hisresidence; iii) approximately one week after the incident T.M. contacted him advising him she did not want Mr. Williams charged and thatshe wanted to continue her relationship with him. e. Plausibility: T.M.’s evidence is plausible. She and Mr. Williams had been arguing since they awoke. She wanted to leave. He became angry when T.M. caused pop to spill on to the Xbox. He pushed her television off the TV stand. She responded withobscenities and insults. He responded with threats and violence. f.

The “balance” of the evidence: I found T.M. attempted to be fair in her description of the events which unfolded on March13, 2017. She said that after giving her statement to Constable Unrau, she realized the choking incident could not have gone on for oneto two minutes. She called Constable Unrau and left him a message telling him that this was an “obvious exaggeration”. The chokinglasted only a few seconds, but that it felt much longer at the time. T.M. agreed she was not injured and that her dizziness after thechoking incident was attributable to her anxiety or panic.

She did not exaggerate or embellish the force used in, or the pain or impact ofthe choking incident. Rather, she described Mr. Williams’ grip on her throat as simply tight enough to cause her to be “uncomfortable.” Similarly, T.M. did not exaggerate or embellish her reaction to Mr. Williams’ threats. She simply said they made her “feel shitty” andshe broke down as she had done in court, which I characterise as uncontrollable crying. g. Contested evidence: The evidence contradicting T.M.’s version of events is Mr.

Williams’ claim he did not place his hands onT.M.’s neck, but rather, on her shoulders on either side of her neck, and then only to calm her down. Mr. Williams did not deny makingthe threats T.M. claimed he made. At the best he denied in cross-examination that he told T.M. he would hurt her if she left. Demeanour Evidence [83] Defence counsel submits that I should glean from T.M.’s demeanour on the stand that she was being untruthful. Specificallyshe refers to T.M.’s crying and reluctance to provide specific details of the choking incident.

In my view, T.M. is a vulnerable younglady who had difficulty testifying to events she found painful. At the time of these events, T.M. was “so all about Tyler”. She tried toleave him many time prior to March 13, 2017, and sought to reconcile with him shortly after complaining to the police. [84] The appellate courts have repeatedly cautioned trial judges against giving undue weight to demeanour evidence because of itsfallibility. In R. v. Rhayel, 2015 ONCA, 377, Gloria Epstein J.A, for the unanimous court, stated in part: 85.

Cases in which demeanour evidence has been relied upon reflect a growing understanding of the fallibility of evaluatingcredibility based on the demeanour of witnesses . . . It is now acknowledged that demeanour is of limited value because it can be affectedby many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with acourtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness. [Citations Omitted] [85] Chief Justice Epstein goes on to site the following passage from Faryna v.

Chorny, (BC CA): If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witnessbox, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection itbecomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidenceof a witness. For a trial judge to say "I believe him because I judge him to be telling the truth," is to come to a conclusion on consideration of only halfthe problem.

In truth it may easily be self-direction of a dangerous kind. [86] And at paragraph 87, Justice MacKenna from the Alberta Court of Appeal in R. v. Pelletier, 1995 ABCA 128 : I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my ownability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling thetruth. He speaks hesitantly. Is it the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time tofabricate?

Is the emphatic witness putting on

an act to deceive me, or is he speaking from the fullness of his heart, knowing that he isright? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground, perhaps from shyness ora natural timidity? For my

part I rely on these considerations as little as I can help. [87] I take heed that it is in assessing credibility I ought not to unduly rely on demeanour evidence. [88] I do not agree with Ms. Joseph’s submission that T.M.’s evidence lacks specificity. Although distraught, T.M. provided adetailed account as to how the events unfolded, where she and Mr. Williams were positioned, what they were doing and what they weresaying so far as she could recall. Specifically, T.M. testified she was on her hands and knees on the floor beside the bed collecting hershirts and Mr. Williams was standing by the TV stand.

They were arguing and name-calling; pop spilled onto the Xbox; Mr. Williamswas angry; he poured pop into her duffle bag which was beside the TV stand; he pushed her television off the stand and began kicking atthe screen; she called him “a fucking asshole” and she “hated him.” Mr. Williams walked speedily towards her while she was still on herknees; he stood in front and over her; he spread his hands and put them around her throat for a couple of seconds, but it felt much longer. He gripped her throat until it felt tight and uncomfortable; she stood up and felt dizzy.

She asked “what the fuck was wrong with him.” T.M. started picking up the things he was tossing towards her and he told her to “get the fuck out.” [89] With respect to the threats, T.M. testified that after her television ended on the floor, Mr. Williams kicked at her screen until shethought it was broken. While kicking at the screen he said, “Sometimes I wish this was your face.” He called her “a bitch and cunt” and

said to her “You don’t know how much I want to beat the shit out of you.” [90] In my view T.M.’s evidence was clear, specific and certain. Her allegations of Mr. Williams kicking at the television screenand threatening T.M. were unchallenged in cross-examination. Mr. Williams never denied these incidents in his direct examination andin his cross-examination; he simply denied telling T.M. he would hurt her if she left. Confrontation (The rule in Brown and Dunn) [91] When Mr. Williams completed his testimony, I canvassed the Crown as to whether he sought leave to recall T.M. to respond tosome aspects of Mr.

Williams’ evidence which were not put to T.M. in cross-examination. For example: a. Mr. Williams’ testified he had tried lifting T.M.’s television. When he did, T.M. hit his arm “a little bit” and the television fellout of his hand.” In her cross-examination, Defence counsel suggested to T.M. that Mr. Williams “never made contact” with hertelevision; b. T.M. threw the pop can of iced tea at Mr. Williams, which he dodged; c. Mr. Williams poured the pop onto clothing in a joint laundry basket and not inside T.M.’s duffle bag; d. T.M. used Mr.

Williams’ cell phone to call home at the end, not the beginning of the their altercation; and e. T.M. later smashed the television to show Mr. Williams she was “done with him.” [92] The rule in Browne v. Dunn imposes a duty on an opposing counsel to give a witness an opportunity to explain evidence whichwill be called later to impeach the witness. The rule is one of trial efficiency to avoid having to re-call witnesses. The rule is also oneof fairness to the witness, the parties and the trier of fact.

It is fair to a witness whose credibility is under attack to be given anopportunity to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted. It is fair to a partywhose witness is impeached to have notice of the precise aspects of the contested testimony so that party can decide whether or whatconfirmatory evidence to call. Finally, it is fair to the trier of fact, who, without the rule, would be deprived of information that mightshow the impeachment to be unfounded and thus compromise the accuracy of the verdict: R. v.

Quansah, 2015 ONCA 237, paragraph77. [93] The failure to confront a witness in cross-examination with contrary evidence can support an inference the opposing partyaccepts the witness’s evidence in its entirety or at least on the specific point: Quansah, paragraph 79. [94] The rule is not engaged when it is apparent from the overall tenor and conduct of the cross-examination the witness’s evidenceis contested: R. v. Drydgen, 2013 BCCA 253. Also, the rule does not apply to every scrap of evidence.

Where the evidence isinsignificant in the overall context of the case the failure to abide by the rule will be of little or no effect. It applies only to matters ofsubstance. Counsel need not ask contradicting questions about straight forward matters of fact on which the witness has already givenevidence that he or she is very unlikely to change: R. v. Khuc, 2000 BCCA 20 at para. 44. Put another way, counsel need notslog through lengthy and prolix cross-examination or the “muck of minutiae”: Quansah, at paragraph 86; R. v.

Poole, 2015 BCCA 464, at para. 41. [95] Where a material portion of the witness’s evidence is untouched or implicitly accepted on cross-examination, non-compliancewith the rule can result in little, if any, weight being given to the offending evidence. Conclusion on Credibility [96] In W.(D.), Cory J. cautioned trial judges that the evidence of an accused is not examined in isolation, but rather in the context ofthe evidence as a whole: Greenly, at para. 17. Upon assessing the evidence as a whole I do not accept Mr.

Williams’ evidence that heonly placed his hands on T.M.’s shoulders to calm her down. [97] I do accept T.M.’s evidence that Mr. Williams placed his hands on her neck and choked her for a few seconds. I also acceptT.M.’s evidence that: (

a) while kicking at the television screen, Mr. Williams said, “sometimes I wish this was your face” (

b) he told her‘You don’t know how much I want to beat the shit out of you.” [98] I am uncertain as to whether the incident with the knife occurred on March 13, 2017. Findings on Assault [99] I find the Crown has proven beyond a reasonable doubt that Mr. Williams assaulted T.M. on March 13, 2017, by placing hishands around her neck and applying pressure sufficient to make her uncomfortable. She did not consent to this activity. [100] I do not find the Crown has proven beyond a reasonable doubt that Mr. Williams pointed a knife at T.M. Self defence [101] Mr.

Williams did not ultimately rely on the defence of self-defence at trial. Nevertheless, it is my view that in the circumstancesof this case, there is no air of reality to self-defence.

Section 34 of the Criminal Code, sets out three elements to the defence: (1)reasonable belief, (2) purpose, and (3) reasonable response. I am of the view that the evidence would negative each element beyond areasonable doubt, so in any event, the Crown would have succeeded in establishing the non-applicability of self-defence. Finding on Threats [102] I find Mr. Williams’ conduct of kicking the television while uttering the words, “sometimes I wish this was your face”

constituted a threat. I find Mr. Williams’ words to T.M., “You don’t know how much I want to beat the shit out of you” also constituted a threat. [ 103 ] I find the Crown has proven beyond a reasonable doubt that Mr. Williams threatened T.M. on March 13, 2016. Disposition [ 104 ] As to Count 1, I find Mr. Williams guilty of assaulting T.M. on March 13, 2017, at or near Gitwangax, B.C. contrary to s. 266 of the Criminal Code . [ 105 ] As to Count 2, I find Mr.

Williams guilty of uttering threats to T.M. on March 13, 2017, at or near Gitwangax, B.C., to cause her death or bodily harm contrary to s. 264.1 of the Criminal Code . “Judith Doulis” ________________________ J. T. Doulis Provincial Court Judge Province of British Columbia