R. v. Ninkov, 2023 BCPC 251

Citation: R. v. Ninkov 2023 BCPC 251 Date: 20230927 File No: 247466-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. DJORDJE GEORGE NINKOV ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: P. Miller Counsel for the Defendant: T. Forss Place of Hearing: Surrey , B.C. Date of Hearing: May 17, 2023 Date of Judgment: September 27, 2023 INTRODUCTION

[ 1 ] The accused, Djordje George Ninkov, by Information No. 247466-1, is charged with the following offences, namely, that on or about November 24, 2021, at or near Surrey, in the Province of British Columbia, he did: Count 1 : assault Cst. Habbas, a peace officer engaged in the execution of that officer’s duty, contrary to s. 270(1) of the Criminal Code ; Count 2: assault Cst. Ajitkumar, a peace officer engaged in the execution of that officer’s duty, contrary to s. 270(1) of the Criminal Code ; and Count 3: resist or wilfully obstruct Cst. Ajitkumar, a peace officer in the execution of his duty, contrary to s. 129 (

a) of the Criminal Code . [ 2 ] The Crown proceeded summarily. The accused pled not guilty to all three counts. [ 3 ] The defence does not take issue with any of the following elements of the offences: (

a) the accused’s identity; (

b) the court’s jurisdiction; (

c) the date, and the location at which the accused is alleged to have committed the offences; and (

d) Cst. Habbas and Cst. Ajitkumar were peace officers, who were engaged in the execution of their duty at the time the accused is alleged to have committed the offences. That leaves the Crown to prove beyond a reasonable doubt the other essential elements of the alleged offences.

I will address these elements in my discussion. [ 4 ] The defence also confirmed that there were no Charte r issues arising out of the circumstances of the alleged offences. [ 5 ] I will first set out the applicable legal framework, provide an overview of the incident on November 24, 2021 (the “Incident”) that led to the charges the accused is facing, review the evidence, and finally discuss the issues at hand. THE LEGAL FRAMEWORK Legislation [ 6 ] The relevant provisions of the Criminal Code are as follows:

Definitions 2 In this Act , peace officer includes (

c) a police officer, a police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process, Assaulting a peace officer 270

(1) Every one commits an offence who (

a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer; . . .

(2) Every one who commits an offence under subsection (1) is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction. Assault 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or . . . Offences relating to public or peace officer 129 Every one who

(

a) resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such anofficer, . . . is guilty of (

d) an indictable offence and is liable to imprisonment for a term not exceeding two years, or (

e) an offence punishable on

summary conviction. Legal Principles Assessment of Credibility [7] In R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada, at p. 758, set out a model charge tothe jury on the issue of credibility and reasonable doubt where there is evidence from the accused: (

a) First, if you believe the evidence of the accused, obviously you must acquit. (

b) Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. (

c) Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [8] In R. v. Ay, [1994] B.C.J. No. 2024, (BC CA), the Court of Appeal for British Columbia reiterated this test atpara. 72 (which had been further considered by the Court of Appeal for British Columbia in R. v. H.(C.W.), (BC CA),[1991] 68 C.C.C. (3d) 146): (

a) If they believe the accused they must acquit. (

b) If they do not know whether to believe the accused or the complainant, they must acquit. (

c) If they do not reject the evidence of the accused, they will have a reasonable doubt and must acquit. (

d) If they disbelieve the accused, that is if they reject his evidence as untrue, they have to be convinced beyond a reasonable doubt ofthe guilt of the accused on the whole of the evidence before they could convict. [9] I also keep in mind the following fundamental legal principles applicable to the case before me: (

a) The accused is presumed to be innocent at all times during a trial. (

b) The accused cannot be found guilty unless, after considering all of the evidence, that guilt has been proved beyond a reasonabledoubt. (

c) The burden of proof is always on the Crown and does not shift to the accused at any stage of the proceedings: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Veeken, 2020 BCCA 54, at para. 16. (

d) In Lifchus, at para. 36, Cory J. writing for the majority, summarized the principles surrounding proof beyond a reasonable doubt asfollows: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense; • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guiltymust acquit. [10] The trier of fact may believe none, part, or all of a witness’ evidence, and may attach different weight to different parts of thatevidence, rather than accepting or rejecting all of it: Gill Tech Framing Ltd. v.

Gill, 2012 BCSC 1913, at para. 28. OVERVIEW OF THE INCIDENT [11] In the early morning hours on November 24, 2021, Cst. Nihil Ajitkumar was dispatched to the scene of a single motor vehiclecollision that had occurred at a Husky gas station, located at 5604 175 Street in Surrey, British Columbia (the “Gas Station”). Theaccused was determined to be the registered owner and driver of the vehicle, an SUV, that was involved in the collision. The vehicle haddriven into two gas pumps at the Gas Station, dislodging them from their island.

The vehicle was propped up on cement pillars near alarge propane tank at the Gas Station, with severe front-end damage to it. The accused was seated in the driver’s seat when Cst.

Ajitkumar arrived to investigate the situation. [ 12 ] After speaking with the accused, Cst. Ajitkumar suspected that the accused was impaired by some substance. Immediately, he began an impairment investigation. At Cst. Ajitkumar’s request, Cst. Kristine Habbas arrived at the scene within a few minutes to assist Cst. Ajitkumar. In the course of their investigation of a suspected impaired driving, the accused is alleged to have assaulted Cst. Ajitkumar and Cst. Habbas, and obstructed Cst. Ajitkumar in the execution of his duty. [ 13 ] I will now turn to the evidence in this case. EVIDENCE [ 14 ] Cst.

Ajitkumar, Cst. Habbas and Cst. Andrew Corazza testified on behalf of the Crown. [ 15 ] Cst. Ajitkumar has been a member of the Royal Canadian Mounted Police (“RCMP”) for about 4 ½ years. At the date of the Incident, Cst. Habbas had also been a member of the RCMP for about 4 ½ years. Currently, she is with the Criminal Collision Investigation Team, and has been with this team for about 1½ years. Cst. Corazza is an officer with the New Westminster Police Department, but he has been seconded to the Lower Mainland Integrated Police Dog Service.

He has been a police dog handler for about five years and eight months. [ 16 ] The accused testified on his own behalf. Certain photographs were entered into evidence as Exhibits 1 and 2. [ 17 ] There were significant discrepancies between the evidence of the Crown witnesses as a whole, and that of the accused in many respects, raising credibility as a central issue in this case.

In this context, the Crown and the defence submit, and I agree, that I must apply the W.(D.) test, which I have set out above. [ 18 ] I also agree with the Crown that just because the accused takes the stand and denies the offences, that that raises a reasonable doubt; an analysis of the entirety of the evidence is necessary. [ 19 ] I will first discuss the evidence of each of the witnesses, and then discuss the issues. Cst. Ajitkumar’s evidence [ 20 ] On the morning of November 24, 2021, at about 4:04 a.m., Cst. Ajitkumar received a dispatch call to attend at the Gas Station.

Within about six minutes, he arrived at the Gas Station, and saw a fire truck and fire members already attending to the driver of the collided vehicle, who was still sitting in the driver’s seat. [ 21 ] Cst. Ajitkumar went over to the driver and asked if he was okay, if he was injured, and if he needed any medical help. He was concerned that the driver might have a head injury, so he called an ambulance. He recalls the driver saying his leg was stuck in the “brake pedal or something.” He does not recall the driver saying his back hurt. [ 22 ] While speaking with the driver, Cst.

Ajitkumar noticed the driver’s pupils were dilated. He was not sure whether the likely impairment could be due to drugs, or a combination of drugs and alcohol. [ 23 ] Cst. Ajitkumar informed the driver that he was detained for an impairment investigation. He gave the driver the approved screening device (the “ASD”) demand while the driver was still seated at the driver’s seat. Cst. Ajitkumar asked the driver to come out of his vehicle to administer the ASD test. The driver complied. Cst. Ajitkumar does not know how the driver got his leg out, which he claimed was stuck. [ 24 ] Cst.

Ajitkumar identified the driver by his driver’s licence, although he cannot recall at what point he checked the driver’s identification. The driver was identified as the accused. [ 25 ] When the driver was out of the vehicle, Cst. Ajitkumar tried to use the ASD, but it did not turn on. Using his police radio, he requested another officer to bring him another ASD. [ 26 ] While waiting for the second ASD to arrive, the accused became frustrated, angry, and belligerent. [ 27 ] Within about 10 minutes of Cst. Ajitkumar requesting an ASD, Cst.

Habbas arrived at the scene with another ASD. [ 28 ] At this point, the driver was standing beside either Cst. Ajitkumar’s police vehicle or Cst. Habbas’ police vehicle, as they were parked close to each other. [ 29 ] Immediately upon receiving the second ASD, Cst. Ajitkumar administered the ASD test on the accused. The result of the ASD test was zero. [ 30 ] Cst. Habbas suggested that Cst. Ajitkumar do a drug screening. However, because the standardized field sobriety test (“SFST”) requires use of physical coordination, and the accused had told Cst. Ajitkumar that his leg hurt, Cst.

Ajitkumar considered the SFST test would be a failure. He decided to give the accused a drug recognition expert (“DRE”) demand. He did this about five or 10 minutes after the accused blew zero on the ASD. The accused consented to the DRE evaluation. Since Cst. Ajitkumar is not a trained DRE, he requested another officer, who is a DRE, to attend at the scene to assist him. However, the police dispatch informed him that there was no DRE available at that time. [ 31 ] Therefore, at Cst. Habbas’ suggestion, and within three or four minutes, Cst. Ajitkumar gave the accused a SFST demand.

He did this even though he initially had some concerns about the accused’s leg being hurt, he noticed the accused walk normally towards the officers; came out of his vehicle on his own; stood with the officers and did the ASD test; and was not limping, jumping or lifting his leg.

[ 32 ] While reading the SFST demand from his notebook, Cst. Ajitkumar was standing directly in front of the accused, maybe about two feet from the accused, and Cst. Habbas was standing to his right. The accused was standing about five feet from one of the police vehicles. Cst. Ajitkumar does not recall which side of the police vehicle the accused was standing. [ 33 ] While Cst. Ajitkumar was reading the SFST demand to the accused, the accused said, “fuck you pigs, I’m leaving,” and he turned around and tried to walk away from Cst. Ajitkumar and Cst. Habbas, when Cst.

Habbas grabbed him right away from the front by his shirt and said, “you are under arrest.” [ 34 ] At that point, the accused put his right hand up, with a closed fist, as if he was going to punch Cst. Habbas. Therefore, Cst. Ajitkumar grabbed the accused’s arm and tried to stop him from assaulting Cst. Habbas. Cst. Ajitkumar tried to handcuff the accused, but the accused would not put his hands behind his back. The accused was actively resisting and trying to punch Cst. Ajitkumar who was in front of the accused. During this struggle, Cst. Ajitkumar slipped and fell backwards to the ground.

The accused punched Cst. Ajitkumar once in the chest and twice in the face with his right hand. Cst. Ajitkumar lost control of the accused’s arm, but was holding onto the accused very close to prevent the accused from “throwing any other punches.” The accused was facing Cst. Ajitkumar at that point and was holding onto Cst. Ajitkumar’s shirt or vest. Cst. Ajitkumar is not sure where Cst. Habbas was standing, as everything happened so quickly. He was not even able to reach his radio to call for additional help. [ 35 ] Cst.

Habbas grabbed the accused from behind and jumped on top of the accused’s back trying to gain compliance, but it was not working. The accused was fighting and not complying with the officers’ instructions. [ 36 ] Everything happened so fast. It was chaotic and a bit shocking. [ 37 ] Cst. Ajitkumar does not recall the accused reaching for the door of the police vehicle or saying, “take me to jail.” [ 38 ] Cst. Corazza was at the scene initially, but he left when Cst. Habbas arrived at the scene. By the time Cst. Ajitkumar was reading the SFST demand to the accused, Cst.

Corazza had travelled a short distance, but he came back to the scene. Cst. Ajitkumar is not sure how Cst. Corazza saw the struggle with the accused, but Cst. Ajitkumar saw Cst. Corazza pull up right next to them and get out of his vehicle. He brought his police dog with him. [ 39 ] Cst. Habbas told the accused that the dog would be deployed if he does not stop resisting. However, the accused did not listen to the commands to stop resisting. So, the dog was deployed. At that point, Cst. Ajitkumar was partially up from the ground, and he and Cst. Habbas let go of the accused.

The accused got up and tried to take off, but he did not get very far, as the dog made contact with him. The accused started walking towards 176 Street, and the dog grabbed him by the leg. Cst. Ajitkumar saw the accused punch the dog. [ 40 ] The officers then gained control of the accused and arrested him. Cst. Ajitkumar took three photographs – two of the accused and one of the accused’s driver’s licence – which have been entered into evidence as Exhibit 2. [ 41 ] The accused was taken to the Surrey Memorial Hospital to be checked out for any injuries. Cst.

Ajitkumar went to the hospital with the accused in the ambulance. The accused was belligerent and aggressive while waiting in the emergency room. Because he was agitated, the staff at the hospital were trying to restrain him to the bed, and Cst. Ajitkumar was trying to assist them, when suddenly, the accused jumped from the bed and hit Cst. Ajitkumar’s right ear with his right leg. At that point, the accused’s handcuffs were off, he was seated on the bed, but he was trying to jump out of it. Cst. Ajitkumar is certain the accused intentionally hit Cst. Ajitkumar’s head.

When he was taking off the handcuffs, he did not grab the accused’s thumb and wrench it, as the accused claims. [ 42 ] After that, Cst. Ajitkumar did not have any other interaction with the accused. Cst. Corazza was at the hospital, but Cst. Ajitkumar cannot recall if Cst. Habbas was also there. He also cannot recall if Cst. Corazza was there before or after the accused was restrained to the bed. Cst. Habbas’ evidence [ 43 ] On the morning of the Incident, Cst. Habbas was assisting with another motor vehicle collision when she heard Cst. Ajitkumar’s request for an ASD.

She informed him over the police radio that she would be able to assist, and she arrived at the Gas Station at about 4:29 a.m. [ 44 ] When she arrived at the Gas Station, she saw Cst. Ajitkumar standing beside the accused. The accused was detained, but not in handcuffs at that time. She also saw extreme damages to the gas pumps and the accused’s vehicle, which was propped up on pillars, touching the large propane tank. [ 45 ] About five minutes after arriving at the Gas Station, Cst. Habbas took photographs of the collision scene, 13 of which are in evidence as Exhibit 1.

Among other things, the photographs indicate severe damage to the gas pumps and the accused’s vehicle. [ 46 ] After taking the photographs, Cst. Habbas learned from Cst. Ajitkumar that he had provided the accused with the DRE demand. However, they found out that a member trained in conducting a DRE examination was not available that morning. [ 47 ] Cst.

Habbas suggested to do a SFST because she knew of a trained member who was working that night and that person could come and assist in determining the accused’s level of impairment. [ 48 ] SFST involves three components: (1) determining how the eye moves – when somebody is impaired, the eye is slower to react and a more staggered pattern in the eye can be seen; (2) balance; and (3) walking or counting. [ 49 ] Cst. Ajitkumar agreed with Cst. Habbas’ suggestion to do the SFST. Cst.

Ajitkumar read the SFST demand to the accused when the accused was standing with his back against the passenger side fender of the police vehicle, as shown in photograph 3 of Exhibit 1. Cst. Ajitkumar asked the accused if he understood the SFST demand. That is when the accused said, “fuck you pigs, I’m leaving,” and he aggressively attempted to walk away from Cst. Habbas and Cst. Ajitkumar. He turned his body to the right, so his shoulder was now

against the police vehicle, and as he was motioning to leave, Cst. Habbas grabbed his left arm gaining control, while simultaneously saying, “you are under arrest.” But, the accused got out of her hold, and again attempted to take off. [ 50 ] When the accused said, “fuck you pigs, I’m leaving” and turned his body to take off, Cst. Habbas considered that an indication of the accused obstructing Cst. Ajitkumar’s impairment investigation and refusing to comply with their demands.

She was going to arrest the accused for obstruction and refusal to comply. [ 51 ] She disagreed with the defence that when the accused turned around, he was reaching for the door handle of the police vehicle to try to get into it. She also denied that she tried to reach behind the accused and put him into a chokehold. [ 52 ] When she tried to get a hold of him again after his initial attempt to take off, he came at her and grabbed her uniform shirt collar from the top with both his hands, and at that moment, she feared for her safety. She pushed him in the chest to give herself some time and distance.

But, the accused raised his right arm above his head with his fist closed and was about to strike Cst. Habbas. As the accused was in that motion, Cst. Ajitkumar intervened and attempted to gain control of the accused. As the accused was punching, Cst. Ajitkumar grabbed the accused’s arm from underneath and held him back from not striking Cst. Habbas. Both Cst. Ajitkumar and Cst. Habbas tried to take the accused into custody, but the struggle continued. [ 53 ] When questioned at what point the accused turned around to face Cst. Ajitkumar, Cst.

Habbas said things happened so quickly that she cannot explain how that happened. At that time, all she was thinking about was her safety; how she would take the accused into custody; what type of force she would use as they were trying not to use excessive force, but only as much force as is necessary to take somebody into custody; and ensure there is no injury to herself, Cst. Ajitkumar and the accused. [ 54 ] During the struggle, Cst. Ajitkumar fell backwards, with the accused falling on top of Cst. Ajitkumar, and Cst.

Habbas falling on top of the accused – like a sandwich – they all fell together, on top of each other. Cst. Ajitkumar fell backwards onto his back; the accused fell face forward on top of Cst. Ajitkumar; and Cst. Habbas fell on top of the accused’s back. Cst. Ajitkumar and Cst. Habbas were trying to get a hold of the accused. In the midst of this struggle, Cst. Habbas saw the accused punching Cst. Ajitkumar in the torso area. [ 55 ] Cst. Habbas got up from the ground to figure out how they were going to take custody of the accused. Although Cst.

Ajitkumar had a firm hold on the accused, the accused kept punching Cst. Ajitkumar in the torso. [ 56 ] Cst. Habbas was unable to use her intervention options, such as the OC (oleoresin capsicum) spray, baton, and taser, as they might also harm Cst. Ajitkumar. Therefore, she attempted to use pain compliance – by using her fingers to put pressure on certain points on the accused’s jaw and at the back of his ear. That changed the accused’s behaviour, and at that point, Cst. Habbas heard Cst. Corazza’s siren, and she looked up and saw his police vehicle lights.

He conducted a U-turn at the intersection of 56 Avenue and 176 Street, and came to the location where Cst. Ajitkumar and Cst. Habbas were in a struggle with the accused. [ 57 ] Cst. Corazza got out of his vehicle and told them that he was going to deploy his service dog. Cst. Habbas told the accused to stop, or the dog will be deployed. Cst. Corazza then grabbed his police dog, which was in the back of his vehicle. He gave demands for Cst. Ajitkumar and Cst. Habbas to let go of the accused. They did. As they let go of the accused, he jumped up and was about to take off or flee from police, when Cst.

Corazza released the dog, and the dog latched onto the accused’s buttocks. The accused may have punched the dog. [ 58 ] Then Cst. Ajitkumar and Cst. Habbas directed the accused back to the ground, and successfully placed him in handcuffs. Cst. Ajitkumar would have read the accused his Charter rights. An ambulance was called to the scene within a short time. [ 59 ] In the end, the SFST was not performed, as the accused obstructed Cst. Ajitkumar and Cst. Habbas from continuing their investigation into his potential impairment. [ 60 ] Cst.

Habbas cannot recall who called the ambulance, but she remained on the scene until the ambulance arrived to take the accused to the hospital, and the accused’s vehicle was towed. [ 61 ] Cst. Habbas went to the hospital later to see if Cst. Ajitkumar was okay. At the hospital, she saw the accused in five-point restraints in his bed. Cst. Habbas had no further interaction with the accused. Cst. Corazza’s evidence [ 62 ] Cst. Corazza’s shift on November 23, 2021 was from 17:00 hours to 5:00 a.m. on November 24, 2021.

He was making routine patrols in the area of the Incident, and at the end of his shift heard the call regarding the single vehicle collision at the Gas Station. He was on his way home, driving past the location of the Incident; so he decided to provide cover to Cst. Ajitkumar, as he was alone. He noticed Cst. Ajitkumar conducting an impaired investigation. Cst. Ajitkumar administered an ASD test, which did not work; so he called for a second ASD. Cst.

Habbas arrived on the scene and provided a second ASD. [ 63 ] At that point, although the accused was belligerent and swearing at the officers, he was not aggressive. He appeared to be generally compliant. Cst. Corazza asked the other officers if it would be okay for him to leave since there were two of them at that point. They said they were fine, and Cst. Corazza left. [ 64 ] The Gas Station is in the corner, and since there was a median at that location, Cst. Corazza had to drive northbound on 176 Street to get around the next intersection to go south on 176 Street to go home.

Within five to 10 seconds of him doing that, as he was driving on 176 Street, he looked over to where the officers were dealing with the accused and saw that they were in a fight on the ground. He saw one officer on the ground, the accused on top of that officer, and then a second officer on top of the accused, although from his vantage point, he could not tell who was who, due to the distance, and it was dark at that time. So, he turned around and went back to the Gas Station.

[ 65 ] He saw Cst. Ajitkumar laying flat at the bottom, the accused laying on top of Cst. Ajitkumar, chest to chest, throwing punches to the side of Cst. Ajitkumar’s rib cage, and Cst. Habbas on top of the accused or straddling the accused, trying to pull him off Cst. Ajitkumar. [ 66 ] Cst. Corazza saw the accused punching Cst. Ajitkumar’s mid-section. [ 67 ] Since there was a struggle and the other two officers were “not able to stop the offence of assaulting a police officer,” Cst. Corazza brought out his police dog, Hooper (a German shepherd). Hooper is a barker, and he was barking. [ 68 ] Cst.

Corazza warned the accused; he said, “stop resisting; stop fighting; otherwise, you are going to get bit.” The accused disregarded his warning, and continued to fight and resist arrest, and that is when Cst. Corazza gave the dog the command to make contact with the accused. [ 69 ] The dog made contact with the accused’s left upper thigh, near the lower buttocks area. Then Cst. Habbas got off and the accused got off Cst. Ajitkumar. The dog re-engaged on the accused’s higher upper calf on the left side, at which point the accused punched the dog. [ 70 ] After that, Cst. Ajitkumar and Cst.

Habbas were able to get the accused into custody. Cst. Corazza then removed the dog from the accused. [ 71 ] According to police protocol, Cst. Corazza immediately called for Emergency Health Services, as the accused had been bitten by a police dog. [ 72 ] The ambulance arrived, and the accused was taken to Surrey Memorial Hospital. Cst. Corazza followed the ambulance and went to the hospital. He followed the accused and Cst. Ajitkumar into the emergency room. The accused was belligerent going through the hospital. Cst.

Ajitkumar, a couple of nurses, and some security guards were in the emergency room with the accused. [ 73 ] The accused was in handcuffs and was very agitated by the whole situation while waiting to be examined. He was belligerent the whole time. Cst. Corazza saw the accused strike Cst. Ajitkumar on the side of his head with the accused’s foot. He does not recall which side of Cst. Ajitkumar’s head, or how it happened. The accused’s evidence [ 74 ] At about 3:00 o’clock on the morning of the Incident, the accused was watching television in his residence.

He had no “smokes,” so he took his vehicle and went to the Gas Station to get “smokes.” [ 75 ] As he was driving, his foot got stuck; he lost control and got into an accident. He “threw” his work boots on, which were not laced up, and “they got lodged between the accelerator and the side piece right next to the accelerator – kind of slipped off the pedal in that little hole.” [ 76 ] As a result, the vehicle sped up, he lost control, it veered off into the Gas Station, striking the gas pumps, and coming to a stop. He was sitting in the vehicle at a 45-degree angle.

At that moment, he recalls a pick-up truck with two individuals pulling up on the right hand side and looking inside his vehicle. The accused asked one of those individuals for a cigarette, and that individual gave him one. The two individuals did not say anything. They just left.

The accused lit the cigarette and took “a couple of drags.” [ 77 ] Then, the accused’s passenger door opened, and the accused believes it was a firefighter, who opened the door, grabbed the cigarette out of the accused’s hand, and threw it out because there were propane tanks at the Gas Station. [ 78 ] After that, the accused does not know how much time elapsed, but he recalls the driver’s door of his vehicle opened up, and he believes it was Cst. Ajitkumar who asked if he was okay.

He responded, “I think so.” [ 79 ] The accused felt sore at that time, but does not recall any actual injuries. [ 80 ] In response to Cst. Ajitkumar asking him what happened, the accused said, “my foot got stuck in the accelerator and I lost control.” [ 81 ] At Cst. Ajitkumar’s direction, the accused got out of his vehicle, moved over to the front of the police vehicle, and gave Cst. Ajitkumar his identification. [ 82 ] When Cst. Ajitkumar asked whether the accused had consumed any alcohol or drugs, the accused said, “no.” The accused did not object to doing a breathalyzer test.

The next thing he knew, another officer came. They did the breathalyzer test, and Cst. Ajitkumar told him that it read zero. [ 83 ] At that point, he was facing West, Cst. Ajitkumar was facing East towards him, and Cst. Habbas was a couple of feet away on the right hand side facing North. 176 Street was behind him. They were just standing and waiting there for a couple of minutes. Then the officers were shining a light in his eyes. He could tell by the officers’ attitude towards him as to where things were leading.

So, he said, “fuck this, I know where this is going, just take me to jail.” [ 84 ] He then turned his back to the officer and reached for the rear door of the police vehicle to open the door and sit inside. He made a 180 degree turn, and reached to the right to get into the police vehicle. [ 85 ] When he got his hand on the police vehicle’s door handle, he felt someone grab him from behind in the shoulder and neck area.

The two of them “danced around” a little bit, and then he raised his hand because he thought he was defending himself, but when he realized it was an officer who had grabbed him, he put his hand down and grabbed onto the officer’s vest. At that point, he was already falling back, and he landed on the officer, who was Cst. Ajitkumar. He did not know where Cst. Habbas was at that time. He was laying

on top of Cst. Ajitkumar on the ground, and he felt somebody grabbing him from behind. He does not know who it was, but he thinks it was probably Cst. Habbas. [ 86 ] He is not sure what happened, but he thinks that when he was on top of Cst. Ajitkumar, either Cst. Habbas pulled him off or Cst. Ajitkumar pushed him off. At that point he was face down on the ground on top of his left hand and Cst. Ajitkumar was trying to pull his left hand out from underneath. [ 87 ] He did not strike any officer while he was laying face down. Cst.

Ajitkumar was wrestling his arm, and the next thing he knew was that he was bitten by a dog, and he jumped up off the ground. He felt something grab him from behind, bite him, and he looked up and saw it was a dog. He struck the dog to defend himself from being attacked. [ 88 ] He did not hear any warning about being bitten by a dog if he did not comply. The dog bit him at least five times. [ 89 ] The officers grabbed and handcuffed him, and put him face down on the ground.

He believes the dog was still latched onto his leg when he was on the ground. [ 90 ] He recalls the ambulance arriving, going to the hospital, being put in a room, and laying on the bed. He does not know for how long, may be 15 or 20 minutes. [ 91 ] He was agitated, upset, and he was swearing at the officers for attacking him with a dog. [ 92 ] At some point, Cst. Ajitkumar came up behind him, while he was sitting on the bed handcuffed, and Cst. Ajitkumar was holding his right thumb. He felt his thumb pulled backwards, as if Cst. Ajitkumar was “literally trying to break” the accused’s thumb.

The accused fell back, and kicked Cst. Ajitkumar in the head. After that, the room “got rushed by a whole bunch of people and they strapped [the accused] down to the bed, took his handcuffs off and just left [him] there.” There was no further police interaction. [ 93 ] A week later, the accused went to the hospital because his lower denture split, and there was a two-inch split in his gums, where his dentures were. He believes that was from when he hit his head during the accident because it was not there before.

DISCUSSION [ 94 ] As I said earlier, this case raises issues of credibility on the part of the witnesses, and in particular, the accused. The accused’s evidence was contrary to the evidence of the three Crown witnesses in many respects. The accused was often argumentative and defensive. He had to be directed to answer the questions put to him, without being combative. Some of his testimony made no logical sense, and yet the accused insisted that he was telling the truth. I will discuss some examples. [ 95 ] The evidence of the three Crown witnesses, for the most part, was consistent with each other.

There were some minor inconsistencies, particularly with the evidence of Cst. Ajitkumar. I will refer to some of these as well.

Concerns with the accused’s evidence [ 96 ] The following are a few examples of the concerns I have with the accused’s evidence. [ 97 ] The accused’s evidence about him sitting in his vehicle at a 45-degree angle right after the collision, smoking a cigarette that he got from two individuals who drove by right next to his damaged vehicle, is hard to believe for a number of reasons. [ 98 ] The accused had just been in a serious collision sometime between 3:00 a.m., when he says he left his residence, and about 4:29 a.m., when Cst. Ajitkumar arrived at the scene.

The accused says he was not unconscious or impaired at the time, but he did not ask for help even though he had a cell phone on him. He also did not ask the two individuals for any help or ask them to call 911. [ 99 ] It is very strange that two individuals would randomly drive by a scene of an accident that early in the morning, look into a seriously damaged vehicle with a live person inside, hand over a cigarette, and just drive off without asking anything or offering any help.

This absolutely makes no logical sense. [ 100 ] Even more unbelievable is the accused sitting in the seriously damaged vehicle, which is propped up very close to a large propane tank, asking for a cigarette, lighting it and smoking it, without calling for help. A reasonable person in those circumstances, in all likelihood, would not have done what the accused says he did. [ 101 ] The only inference I can come to from the accused’s evidence is that he is either not telling the truth, or is completely mistaken about what happened, perhaps because he was impaired.

He could not have been unconscious because he had further interactions with the officers that morning. [ 102 ] Contrary to the officers’ evidence that two ASD tests, and the DRE, and SFST demands were given to the accused, the accused insisted that only one ASD test was done on him, and that he never received any other demands. [ 103 ] Contrary to the officers’ evidence, the accused denied walking away from Cst. Habbas or that she told him he was under arrest.

He said, “nobody told me I was under arrest.” He also outright denied saying the words, “fuck you pigs, I’m leaving.” [ 104 ] The accused’s evidence that he tried to open the door handle of the police vehicle to get in is also hard to believe. He said he has dealt with police in the past and it was never favourable. That is why he tried to get into the police vehicle for the police to take him to jail. He said he figured he knew what he was doing and that he was trying to save time. However, when cross-examined on this point, he admitted that he never let himself into a police vehicle in the past.

It makes no sense that the accused would voluntarily go into the police vehicle to be taken to jail, especially when he says, the police did not tell him that he was under arrest. [ 105 ] The Crown put to the accused that he gave two contradictory answers as to why he tried to let himself into the police vehicle.

One, he was confused because he had just been in an accident and he did not know what was going on; and two, he was so aware of what was going on that he could predict the future in a sense that he would save time by letting himself into the police vehicle. [ 106 ] It is baffling that the accused insisted that his two explanations for why he claims to have tried to get into the police vehicle were not contradictory.

He disagreed with the Crown that he was not telling the truth. [ 107 ] The accused’s evidence that when he raised his arm with a closed fist he did not know who grabbed him, and that he put his arm down as soon as he realized the person who grabbed him was a police officer, is also hard to believe. [ 108 ] The accused acknowledged that hardly a few moments prior to him being grabbed by Cst. Habbas, he was in the middle of a conversation with two police officers in very close proximity to them.

He also agreed that it would have only taken about one or two seconds to open the police vehicle door, and there was nobody else around at that time. [ 109 ] Therefore, for the accused to insist that he did not know that the person who grabbed him was a police officer is untenable. I find that he did know, and he knowingly raised his arm with a closed fist to strike the officer, who happened to be Cst. Habbas. [ 110 ] The accused said he did not fall on top of Cst. Ajitkumar after Cst. Ajitkumar tried to grab the accused’s hands and put him in handcuffs. He said he did not punch Cst.

Ajitkumar in the torso or head, but that he was being pulled around. He said he did not realize “it was a fight,” and he “was just sitting there,” and “they were hitting” him. [ 111 ] The accused was adamant that he disagreed with the three police officers’ evidence that he punched Cst. Ajitkumar. He also disagreed with the evidence of Cst. Ajitkumar and Cst. Habbas that he attempted to strike Cst. Habbas.

He says he never punched or struck either of them, and that the officers are either lying or they are mistaken. [ 112 ] The accused’s evidence in this respect is in complete contradiction with the evidence of the three police officers. All three of them testified that the accused punched Cst. Ajitkumar in the torso area – Cst. Ajitkumar said in the “chest,” Cst. Habbas said in the “torso,” and Cst. Corazza said in the “mid-section” – all of them referring to the same area on Cst. Ajitkumar’s body. [ 113 ] However, the accused not only completely denies punching Cst.

Ajitkumar, but goes on to elaborate that he was just sitting there, and the police officers were hitting him. On the one hand, he says there was a fight, but on the other hand says, he was just sitting there, and the officers were hitting him. He did not say in his direct examination that the officers were hitting him. If the officers were hitting him, I have no doubt he would have given more details about how and where he was hit. Under cross-examination, he mentioned that he was hit only once. Given his reaction to Cst.

Habbas initially just grabbing him – that is he raised his arm with a closed fist ready to strike Cst. Habbas – it is absolutely not believable that he was “just sitting there,” as he puts it, allowing the officers to hit him. [ 114 ] Cst. Corazza testified that when he arrived at the scene with his police dog, the dog was barking, as he is a barker. However, the accused said he did not hear the dog barking or the commands that Cst. Corazza and Cst. Habbas gave to the accused to let go; otherwise, he will be bitten. [ 115 ] From the evidence of Cst. Corazza and Cst.

Habbas, I have no concerns that they were not following police protocol, or that they did not give the commands they said they did. If the accused was not impaired at the time, as he claims, then it is hard to understand how he could not have heard the dog barking or the officers’ commands for him to let go. [ 116 ] The accused insisted that, at the hospital, Cst. Ajitkumar grabbed his thumb and tried to break it. He denied that Cst. Ajitkumar was trying to get his handcuffs off. He said Cst. Ajitkumar deliberately put pressure on his thumb to hurt him. [ 117 ] Again, I find this assertion untenable.

All three officers went to the hospital to make sure that the accused received medical attention for any injuries he may have sustained from the Incident. There is no cogent evidence as to why Cst. Ajitkumar would try to break the accused’s thumb. He went to the hospital to make sure that any injuries the accused may have sustained were attended to, and not to cause further injuries. All witnesses, including the accused, said that the accused was agitated and belligerent, and was yelling and swearing, when he went through the hospital and while waiting in the emergency room.

Therefore, it is entirely reasonable that Cst. Ajitkumar was assisting the hospital staff to restrain the accused to the bed, by removing the handcuffs, and that is why he touched the accused’s hands in the back, as he testified. [ 118 ] The accused agrees that he hit Cst. Ajitkumar in the head with his foot, although he claims that it was a reaction to Cst. Ajitkumar trying to break his thumb. Cst. Ajitkumar, however, says that the accused hit him intentionally. [ 119 ] The evidence is clear that Cst. Ajitkumar did not try to break the accused’s thumb, as the accused claims.

However, I am not convinced that the accused hit Cst.

Ajitkumar intentionally during this interaction. [ 120 ] Another example of a bizarre response from the accused relates to the Crown’s questions about the comments the accused made to the three police officers at the courthouse on the day of this trial. [ 121 ] Crown counsel asked the accused whether he recalls saying to the three officers something to the effect that, “when this is all over, we’ll get it on Pay-per-View.” The accused denied saying this, but he explained that he said, “we should get it on Pay-per-View – the video of everything that has happened” because according to the paperwork (referring to the disclosure) he got, there is a CCTV footage that he has not seen. [ 122 ] Crown counsel suggested to him that when he made those comments to the police officers, he was referring to some kind of violent interaction he would have with them, because that is what is typically on a Pay-per-View program (a fight or a boxing match, or something along those lines).

The accused said, no, and provided a different explanation; he said he was referring to being attacked by the dog. [ 123 ] Needless to say, the accused approaching the Crown witnesses in the middle of his trial to say anything, let alone any form of

threat, is totally inappropriate and unacceptable. Furthermore, his comments make no sense. He was represented by counsel throughout. So, it is not clear whether there is any truth to his assertion that he did not see all of the disclosure material. [ 124 ] Finally, the accused’s evidence that he had a “two-inch split” in his gums where his dentures were and that was caused when he hit his head during the accident, is hard to believe. The accused said he went to the hospital a week after the accident happened because his lower denture split, and that is when he discovered this two-inch split in his gums.

There is no other evidence corroborating the accused’s evidence in this respect. A two-inch split is a large area, particularly in the confined space of a person’s gums. Such a split would, no doubt, have caused profuse bleeding and pain. The accused did not describe any such symptoms. Throughout his testimony, he never said he hit his head. He only said he was “sore,” without specifying where on his body he was sore, and that his leg was stuck, not injured. Even more troubling is the accused’s evidence that he went to the hospital a week after the accident, but that this injury occurred because of the accident.

How could he not have felt the pain of a two-inch split in his gums for a whole week? [ 125 ] On the whole, I found the majority of the accused’s evidence incoherent and inconsistent, and at times far-fetched. He had difficulty recalling details of the Incident. He seemed to be making up things on the stand, and asserting what he was saying was the truth. While his memory was poor, he accused the Crown witnesses of lying or being mistaken about what happened. As I have discussed, many aspects of his evidence were unbelievable, and did not have an air of reality. I found the accused not to be a credible witness.

I find his evidence, for the most part, utterly unreliable. Therefore, I reject his evidence. [ 126 ] I will now turn to the officers’ evidence. The officers’ evidence [ 127 ] For the most part, the evidence of all three officers were consistent. The defence did not raise any concerns of collusion amongst the officers. [ 128 ] However, the defence submits there are a few inconsistencies in the officers’ evidence. In particular, it says the court should be cautious in dealing with Cst. Ajitkumar’s evidence. [ 129 ] While Cst.

Ajitkumar was not as articulate as the other two officers, I did not find him to exaggerate or embellish his evidence to portray himself in a more positive light, as the defence alleges. There were some minor discrepancies between the evidence of Cst. Ajitkumar and those of Cst. Habbas and Cst. Corazza. [ 130 ] For example, Cst. Ajitkumar said that when he and Cst. Habbas were attempting to arrest the accused, and they all fell to the ground, he was not “flat” on the ground, but was on his knees, whereas Cst. Habbas and Cst. Corazza, and the accused, said that Cst. Ajitkumar was flat on the ground.

The evidence indicates that everything happened so quickly, and it was chaotic. It is conceivable that after Cst. Ajitkumar, the accused, and Cst. Habbas fell to the ground, Cst. Ajitkumar got off the ground slightly in his continued effort to grab the accused’s hands behind him to handcuff him. [ 131 ] The defence says Cst. Ajitkumar was very specific as to where the accused hit him, namely, that the accused hit him once in the chest and twice in the face whereas the other two officers did not say that they saw the accused hit Cst. Ajitkumar in the face.

The evidence indicates that while the accused was punching Cst. Ajitkumar, Cst. Habbas was behind the accused, and Cst. Corazza was initially some distance away, but when he came on the scene, he saw the accused punch Cst. Ajitkumar in the mid-section. Again, it is conceivable that in the tussle that was happening, the other two officers did not specifically notice the punches to Cst. Ajitkumar’s face. Since Cst.

Ajitkumar was the recipient of the punches, he is certainly in a better position to describe where the punches landed on his body. [ 132 ] I do not agree with the defence’s submission that there were “no strikes whatsoever at the scene” just because there is a slight difference in the officers’ evidence as to where the strikes landed on Cst. Ajitkumar’s body. I have no doubt that the accused intentionally hit Cst. Ajitkumar during their tussle. [ 133 ] Another inconsistency the defence says is Cst. Ajitkumar claiming that he called the ambulance, whereas Cst.

Corazza said he called the ambulance after the dog bit the accused, and the ambulance arrived shortly thereafter. Cst. Ajitkumar’s evidence was that he was concerned that the accused may have hit his head, and that is why he called an ambulance, but he did indicate the ambulance arrived after the dog bite. The Crown points out that Cst. Ajitkumar’s evidence in this respect was not contradicted by any of the other witnesses. Regardless, I do not find this to be a consequential discrepancy to discredit Cst. Ajitkumar’s evidence to any extent. [ 134 ] A further inconsistency the defence says is the position of Cst.

Ajitkumar, Cst. Habbas and the accused, when the accused was initially grabbed. The defence says Cst. Habbas’ description is different from the accused’s description, and that Cst. Habbas tailored her evidence to make it seem more “innocuous” or “appropriate” in making herself look better in how she interacted with the accused in the circumstances. [ 135 ] I disagree with the defence on this point. I did not find Cst. Habbas to embellish her evidence in any way. She did state, as did Cst. Ajitkumar and the accused, that everything happened so quickly.

Therefore, it is understandable, even if there is some discrepancy in the witnesses’ description as to who was standing where while the accused was grabbed when he started to flee. The point is the accused did start to flee, and Cst. Habbas grabbed him, and when he raised his arm with a closed fist and was about to strike Cst. Habbas, Cst. Ajitkumar attempted to grab him. [ 136 ] In the end, a few minor discrepancies in the officers’ evidence do not affect the overwhelming evidence that indicates that the accused did: (

a) commit assault of Cst. Habbas by intentionally grabbing her uniform shirt collar from the top with both his hands causing her to fear for her safety, and attempting to strike her by raising his right arm with a closed fist; (

b) commit assault of Cst. Ajitkumar by intentionally punching him in the torso area, without his consent; and

(

c) resist or willfully obstruct Cst. Ajitkumar from carrying on with the impaired investigation of the accused by saying, “fuck you pigs, I’m leaving,” and attempting to leave the scene. Gill Tech Framing Ltd. v. Gill , 2012 BCSC 1913 CONCLUSION [ 137 ] In conclusion, on the totality of the evidence before me, viewed as a whole, I am satisfied that the Crown has proven beyond a reasonable doubt the elements of each of the offences the accused is facing. [ 138 ] For the reasons I have discussed, I find the accused guilty on all three counts on Information No. 247466-1. ________________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia