R. v. Boco, 2018 BCPC 245

Citation: R. v. Boco 2018 BCPC 245 Date: 20181002 File No: 25087-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. YANNICK BOCO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. P. HARRIS Counsel for the Crown: F. Malik Counsel for the Defendant: M. Mines Place of Hearing: Vancouver , B.C. Dates of Hearing: April 1, 2, July 31, September 10, 2018 Date of Judgment: October 2, 2018 INTRODUCTION [ 1 ] After a night of socializing, drinking and fun, two groups had a happen chance encounter at a local eatery. All was fine until an

ill-advised comment evoked a reaction which ultimately resulted in a fight. [ 2 ] Mr. Boco is now charged with assaulting Ms. Thandi, a member of the opposing group. Specifically, it is alleged that Mr. Boco bit Ms. Thandi’s hand and that he punched her. [ 3 ] Mr. Boco responded to these allegations by testifying and calling Mr. Kena as a witness. Mr. Boco asserts he did not bite Ms. Thandi and he punched Ms. Thandi in self- defence, in the alternative, the punch was done within the context of a consensual fight. [ 4 ] This Court must determine if the evidence proves beyond a reasonable doubt that Mr.

Boco bit Ms. Thandi and whether there is some evidence to support Mr. Boco’s claim that he acted in self-defence or was engaged in a consensual fight when he punched Ms. Thandi. CROWN EVIDENCE Ms. Sundeep Thandi [ 5 ] In the early morning hours of June 17, 2017, Ms. Sundeep Thandi, her brother, Mr. Jaykashan Jackson Thandi, and a friend, Ms. Sancheska Stranack, stopped at an eatery located in the 700 block of Davie Street in Vancouver. The group ordered food, and while outside, Ms. Thandi and Ms.

Stranack were approached by a group of males. [ 6 ] There were three black males in this group and they were asking if the food was good at the eatery. Ms. Thandi indicated that the eatery was well known and a good place to go after the bar. During the discussion, Ms. Thandi learned that the group was from Seattle. After a short period of time, a fourth male approached the group. This fourth male is now known to be Mr. Boco. [ 7 ] On reaching the group, Mr. Boco stated to his friends, “Let’s go stop listening to these dumb bitches.” On hearing these words, Ms. Stranack told Mr.

Boco to stop being disrespectful and to leave them alone. Mr. Thandi, who was a few feet away, stepped forward and asked, “What was wrong?” Ms. Thandi told her brother that Mr. Boco was being disrespectful. Mr. Thandi then told Mr. Boco to leave them alone. [ 8 ] According to Ms. Thandi, Mr. Boco responded by pushing Mr. Thandi and asking him if he wanted to go. The interaction escalated to a fight with both males exchanging punches. Ms. Thandi yelled for the men to stop, but they continued fighting, eventually falling to the ground where they continued fighting. Ms.

Thandi stepped forward and tried to pull her brother away. As she was pulling her brother, Ms. Thandi saw Mr. Boco bite down on her right hand. Ms. Thandi screamed, fell to the ground, and scraped her knee. While on the ground, she noticed that her hair extensions had been pulled out and that the heel of her shoe was broken. On further questioning, Ms. Thandi testified when she screamed she yelled, “My hand, my hand, your biting my hand.” [ 9 ] The two men separated and Mr. Boco ran south towards Granville Street. The police arrived almost immediately thereafter, and Ms.

Thandi explained what had happened and she pointed to the original group of three males because she believed they were friends of Mr. Boco. The police remained on location for about 7 to 10 minutes and then left on what Ms. Thandi believed was an emergency call. [ 10 ] Ms. Thandi and her group remained in front of the eatery and they looked for Ms. Thandi’s cell phone. While on the side walk Ms. Thandi saw Mr. Boco return to the area and she heard him yell, “Where is he?” According to Ms. Thandi, Mr. Boco then rushed at Mr. Thandi and started punching him as Mr. Thandi cornered him against a wall. Mr.

Thandi responded by punching back. [ 11 ] As the two men exchanged punches, a friend of Ms. Thandi’s and bystanders tried to separate the two. While this was going on, Ms. Thandi was yelling for them to stop and for Mr. Boco to leave them the “fuck” alone. The two males were eventually separated, at which point Mr. Boco turned stepped forward and pulled Ms. Thandi with one hand and punched her in the temple with the other. [ 12 ] The punch knocked Ms. Thandi to the ground, and while on the ground she saw Mr. Boco run toward the alley while being pursued by her brother and others. Ms.

Thandi heard someone call the police and she remained on the ground waiting for the police to arrive. [ 13 ] As for Ms. Thandi’s sobriety, she testified she had six drinks over a six and a half hour period. She testified that, at the time of the events she had a slight “buzz” and she was not intoxicated. [ 14 ] On cross-examination, Ms. Thandi denied ever punching or even swinging at Mr. Boco. Ms. Sancheska Stranack [ 15 ] Ms. Stranack testified that she had been out with Ms. Thandi and Mr. Thandi when they decided to go to an eatery on Davie Street. While outside the eatery, Ms. Stranack and Ms.

Thandi were approached by three males who asked about the food. They stated they were from Seattle and did not know where to go. [ 16 ] While speaking with the males, a fourth male (now known to be Mr. Boco) joined the group. On joining the group, Mr. Boco said to the other males, “Don’t listen to these fucking bitches.” Ms. Stranack replied by informing Mr. Boco that he should not speak to anyone like that, let alone a couple of young ladies, and she told him to leave. [ 17 ] Upon hearing the commotion, Mr. Thandi came over to see what the problem was and from Ms. Stranack’s perspective this annoyed Mr.

Boco, who responded by pushing Mr. Thandi and encouraging him to fight. At this point, Mr. Boco punched Mr. Thandi and continued to try to get him to fight. Thereafter, things escalated into a fight and on seeing the fight, Ms. Thandi and Ms. Stranack tried to pull the men apart while screaming for Mr. Boco to stop. At this point, Ms. Thandi was hit and thrown to the ground. Ms. Stranack then heard Ms. Thandi yell, “let go”. Ms. Thandi remained on the ground and the men continued to fight. The police arrived while the fight was going on and Mr. Boco ran from the area.

[ 18 ] The police questioned Ms. Thandi and Ms. Stranack. During the questioning, the police received an urgent call and left the area. Ms. Stranack, Ms. Thandi and Mr. Thandi, started looking for Ms. Thandi’s phone which had fallen during the initial altercation. While the group was looking for the phone, Mr. Boco returned and started attacking Mr. Thandi. Ms. Stranack began screaming and yelling in an attempt to stop Mr. Boco from hitting Mr. Thandi. Mr. Boco eventually stopped, turned towards Ms. Thandi, and punched her in the head. [ 19 ] Ms.

Thandi fell to the ground at which point Mr.Boco resumed fighting with Mr. Thandi. The parties then moved up the street towards the alley. Ms. Stranack stayed with Ms. Thandi until an unidentified woman joined them. At this point, Ms. Stanack left Ms. Thandi and she called the police as she followed Mr. Boco to the lane. The police arrived shortly thereafter, and Ms. Stanack saw Mr. Boco run down the lane with the police in pursuit. [ 20 ] An audio recording of Ms. Stranack’s 911 call was admitted into evidence. The recording confirms Ms. Stranack called the police when Mr.

Boco entered the lane and it confirms that Mr. Boco and Mr. Thandi were fighting in the lane. In the 911 call, Ms. Stranack described the fight in the lane, and she described Mr. Boco running when the police arrived. She also stated her friend had been thrown to the ground. There is no mention during the 911 call that Mr. Boco struck Ms. Thandi. Background noise captured during the 911 call confirms that the scene was chaotic with several people in the area. Mr. Jaykashan Thandi [ 21 ] Mr. Thandi is 28 years old and is Ms. Thandi’s brother. As for the events in issue, Mr. Thandi testified he, his sister, and Ms.

Stranack had been out for the evening when they stopped at an eatery on Davie Street. [ 22 ] While at the eatery, Mr. Thandi was standing at the cashier when he saw three males approach Ms. Thandi and Ms. Stranack. He noticed a fourth male (Mr. Boco) join the group and shortly thereafter he heard swearing. Mr. Thandi went to diffuse the situation and he told the fourth male, Mr. Boco, to leave them alone. According to Mr. Thandi, Mr. Boco responded by pushing him and stating, “Do you want to go?” [ 23 ] Mr. Thandi responded by pushing Mr.

Boco and the two became involved in a fight, which resulted in them falling to the ground. Mr. Thandi tried to get up, but Mr. Boco was on top of him and repeatedly hitting him in the face. Mr. Thandi was becoming dazed and he saw his sister try and pull Mr. Boco off of him. He then saw Mr. Boco bite his sister and she screamed without saying any words. Eventually, the parties became separated and the police arrived. It was at this point that Mr. Boco fled. [ 24 ] After approximately 20 minutes, Mr. Boco returned and he ran up to Mr. Thandi and punched him in the face. Mr.

Thandi responded in kind and the two exchanged punches until they were separated, at which point Mr. Boco walked over to Ms. Thandi and punched her on the cheek. Ms. Thandi fell to the ground and Mr. Thandi began chasing Mr. Boco. When he caught up to Mr. Boco, the two exchanged punches until the police arrived and Mr. Boco fled from the area. Constable Gusic and Constable Iucolino [ 25 ] On June 17, 2017, Constable Gusi was working with Constable Iucolino when they were flagged over for a disturbance outside an eatery on Davie Street. The officers pulled over and spoke to the parties.

They noticed that a female had injured her knee and they were advised there had been a fight and that a black male had fled the scene. Prior to finishing their inquiries, the officers left in response to an urgent call. [ 26 ] Later on, the officers received a radio dispatch reporting that there was a fight in the lane by the eatery. The officers responded and on entering the lane they saw a male run. Constable Gusic chased this male and after approximately half a block the male stopped and raised his hands. [ 27 ] Constable Gusic arrested the male and subsequently identified him as Mr. Boco.

It was Constable Gusic’s opinion that Mr. Boco was slightly intoxicated. In this regard, Constable Gusic could smell liquor on Mr. Boco’s breath that Mr. Boco’s speech was slightly slurred, and that he was somewhat slow to answer questions. DEFENCE EVIDENCE Mr. Boco [ 28 ] Mr. Boco testified that he and Mr. Kena came up to Vancouver with the intention of meeting their friend Kolby and “partying.” To this end, they booked rooms in a local hotel and made plans to go to a club. [ 29 ] On arrival, Mr. Boco and Mr. Kena checked into their rooms, went to a store and out for dinner. After dinner Mr. Boco and Mr.

Kena returned to their hotel and prepared to go out for the evening. [ 30 ] Once ready, Mr. Boco and Mr. Kena went to a local club where they met Kolby and one of Kolby’s work friends. The group stayed at the club until around 3 am. Mr. Boco estimates he had four to five glasses of champagne. [ 31 ] During the evening, Mr. Boco became acquainted with a server. Eventually they exchanged phone numbers. Thereafter, they exchanged messages where it was decided that the server would come to his hotel when she got off of work. [ 32 ] Just as the group was leaving the club, Mr.

Boco paused to speak with the server while the others proceeded out of the club. When Mr. Boco left the club, he did not see his friends, so he tried to flag a taxi, but he was unsuccessful. With the aid of his phone, Mr. Boco began navigating his way back to the hotel. While walking on Davie Street, he saw his friends speaking to some people. Mr. Boco approached his friends and said, “Hey don’t talk to these bitches let’s go.” [ 33 ] In response to Mr. Boco’s comment, one of the ladies became offended. When this occurred, Mr. Thandi came over and Ms.

Stranack told him that Mr. Boco had called them bitches. Mr. Thandi then voiced his displeasure and pushed Mr. Boco. [ 34 ] Mr. Boco pushed Mr. Thandi back and the two ended up on the ground and they started to wrestle. Mr. Kena stepped in and tried to separate the two, and while this was occurring, Mr. Boco felt something hit him in the head. Mr. Boco did not see who hit him, but he assumed that it was Ms. Thandi as she was standing beside him. [ 35 ] Mr. Boco got to his feet and Mr. Kena was telling Mr. Boco to be the better person and to just leave. Mr.

Boco then ran up the sidewalk and he turned down the lane. Mr. Boco did not know where he was going, but he eventually found himself back at the club. [ 36 ] Mr. Boco stopped in front of the club and he tried phoning Mr. Kena, but he was unable to reach him. Mr. Boco then tried to get a taxi, but he was not successful. He then decided to wait for a while before walking to the hotel. His reasoning for waiting was so that Mr. Thandi and his group could clear out. [ 37 ] After approximately 25 minutes, Mr. Boco started walking back to the hotel when he saw Mr. Kena on Davie Street. Mr. Boco started to tell Mr.

Kena that they should go, when he saw Mr. Thandi running at him. Mr. Kena stepped between the two while Mr. Boco tried to get away by moving west on Davie Street. As he moved, Mr. Boco tried to keep Mr. Kena between himself and Mr. Thandi. [ 38 ] While moving about, Mr. Boco almost fell, and at one point, he found himself cornered by Mr. Thandi, thus, and in order to escape, he moved east along Davie Street and as he moved he heard Ms. Thandi and Ms. Stranack uttering threats. Eventually, Mr. Thandi was able to push Mr. Kena out of the way and he started to charge at Mr. Boco. At this stage, Mr.

Boco saw someone on his left trying to punch him. Mr. Boco reacted by blocking the punch and punching back. Shortly thereafter, Mr. Boco noticed that Ms. Thandi had fallen to the ground and he felt bad as it was his intention to protect himself. Prior to delivering the punch, Mr. Boco did not know who had tried to punch him, rather, all he saw were arms and he made the split second decision to defend himself. [ 39 ] Thereafter, Mr. Thandi continued advancing at Mr. Boco and the two maneuvered themselves into the lane and into a cage where they exchanged punches. While in the cage, Mr.

Boco heard people shouting that he was going to get shot. [ 40 ] Mr. Thandi exited the cage and they continued to fight in the lane. At some point, Mr. Boco saw a car arrive and come to a stop. Mr. Boco panicked and he started to run and it was at this point that he heard a siren and realized it was the police. Despite now knowing that it was the police, Mr. Boco continued to run. He explained he did this because he was afraid given that he was a black man from the United States. In any event, upon making it about three quarters of a block Mr. Boco stopped and surrendered to the police. Mr. Kena [ 41 ] Mr.

Kena is 29 years old and he resides in Seattle, Washington. He met Mr. Boco on a recreational soccer team and the two became friends. On June 16 th , the two drove to Vancouver with the intention of “partying.” [ 42 ] The two arrived in Vancouver at about 8:00 pm., checked into a hotel, went to a liquor store, and to a local restaurant. After dinner, they returned to the hotel and they prepared to go to a local night club. They left the hotel and took a taxi to the nightclub. Once at the club, they met their friend Kolby and Kolby’s friend from his work. [ 43 ] At the club, the group drank some champagne and Mr.

Kena estimates each person had about three or four glasses. The alcohol caused Mr. Kena to have a slight buzz. The group stayed at the club for about three hours. When they were leaving, Mr. Kena saw Mr. Boco speaking with a hostess and Mr. Kena told Mr. Boco to ask the hostess bring some of her friends back to the hotel. [ 44 ] Mr. Kena, Mr. Kolby and Mr. Kolby’s friend made their way out of the club while Mr. Boco stayed behind speaking with the hostess. Once outside, Mr. Kena tried to hail a taxi but did not have any success. As such, Mr. Kena and Mr. Kolby and Mr.

Kolby’s friend made their way up the street where Mr. Kena approached a girl named Amera. While speaking with Amera, Kolby and his friend started talking with two women one of whom appeared to be from the West Indies (Ms. Thandi). [ 45 ] While speaking with Amera, Mr. Kena saw Mr. Boco come up the street and as he did he yelled out, “Yo what are you doing stop talking to these bitches let’s go.” The two ladies that Kolby was speaking with got offended and made comments about Mr. Boco disrespecting them. At this point, a male (Mr. Thandi) walked over to Mr.

Boco and said, “Don’t disrespect these ladies.” He then he shoved Mr. Boco. Mr. Boco shoved the male back. [ 46 ] When Mr. Kena saw what was happening, he ran to Mr. Boco and Mr. Thandi. By this stage, Mr. Boco and Mr. Thandi were on the ground wrestling. Mr. Kena managed to separate them and as he did so, he told Mr. Boco to get up and leave and be the bigger man. Mr. Boco started to get up, and as he did, Mr. Kena saw Ms. Thandi go behind Mr. Thandi and punch at Mr. Boco. Mr. Boco put his arm up in a guard and he blocked the punch. Mr. Kena continued trying to prevent Mr. Thandi from attacking Mr.

Boco and as he did this he told Mr. Boco to go. [ 47 ] Once Mr. Boco got to his feet, he backed up towards the alley with Mr. Thandi aggressively chasing him. Mr. Kena kept trying to hold Mr. Thandi back while Mr. Boco ran down the alley. Everyone then started to calm down and Amira approached Mr. Kena. They talked about what had happened and she showed Mr. Kena a video that she had taken of some of the events. (This video was later sent to Mr. Kena, who provided it to Mr. Boco and eventually it was entered into evidence) [ 48 ] After about 15 - 20 minutes, Mr. Kena saw Mr.

Boco return; turning the corner from Granville Street and causally walking toward him. At this stage, Mr. Thandi ran at Mr. Boco. Mr. Boco tried to avoid Mr. Thandi and the two became engaged in a fight. Mr. Kena moved forward and stepped between the two and as he did this he saw Ms. Thandi step forward and throw a jab at Mr. Boco. Mr. Boco blocked the jab and responded with a punch at which point Ms. Thandi fell to the ground. [ 49 ] Immediately thereafter, Mr. Thandi and an unknown male in a white t-shirt tried to fight Mr. Boco. Mr.

Kena tried to separate the parties and he became focused on the male in the white t-shirt. While dealing with this male, Mr. Kena saw Mr. Thandi and Mr.

Boco go down the lane. Mr. Kena followed and as he entered the lane he saw that Mr. Boco and Mr. Thandi had entered a cage andwere fighting. Mr. Kena then head a woman yell, “You are going to get shot mother-fucker.” Almost immediately thereafter Mr. Kenawas hit from behind knocking him unconscious. [50] When Mr. Kena regained consciousness, Mr. Boco was exiting the cage and Mr. Thandi was chasing him. Mr. Kena told Mr.Boco to run. A car then pulled up and the occupants started chasing Mr. Boco. At some point, Mr. Kena realized that the peoplechasing Mr. Boco were the police. [51] Counsel for Mr. Boco asked Mr.

Kena questions related to events occurring immediately after video 1. In response, Mr. Kenaindicated that, at the conclusion of the video, Mr. Boco was trying to avoid Mr. Thandi, and it was at this point, that Ms. Thandi swungat Mr. Boco, who then swung back knocking her to the ground. On another occasion, Mr. Kena stated that Mr. Boco ran down the lanejust after the video clip ended. [52] On cross-examination, Mr. Kena was asked where everyone went at the end of video 1, and his response was that Mr. Bocowas still being chased by Mr. Thandi and that a third male in a white t-shirt had joined in.

He testified that the parties moved away fromthe laneway and that he went to the aid of Mr. Boco. It was at this point that Mr. Kena saw that Ms. Thandi had fallen. Mr. Kenaconfirmed he did not see Ms. Thandi hit Mr. Boco. Mr. Kena testified that when these events were occurring his focus was keeping thethird party away and that it was while he was dealing with the third party that Mr. Boco and Mr. Thandi made their way into the lane. POSITION OF THE PARTIES The Defence [53] Counsel for Mr. Boco argues Mr.

Boco’s evidence is evidence that he was acting in self-defence, or in the alternative, that heengaged in a consensual fight. He further asserts the Crown has failed to disprove that Mr. Boco was acting in self-defence or that thefight was consensual. [54] In support, counsel underscores Mr. Boco’s and Mr. Kena’s evidence. He states their evidence was generally consistent andthey were not shaken on cross examination. He states an acceptance of their evidence shows that Mr. Boco was being assaulted and thathe responded immediately with a single punch, which in the circumstances was reasonable.

In the alternative, he asserts that it wasreasonable for Mr. Boco to believe that it was a consensual fight. [55] As for the allegation that Mr. Boco bit Ms. Thandi, counsel emphasizes that Mr. Boco denied biting Ms. Thandi. He also pointsout that Ms. Thandi was confused as to which hand was bitten and the photo of her apparent injury does not accord with what one wouldexpect given her description that Ms. Boco bit her with significant force. [56] In all of the circumstances, counsel urges the Court to find Mr. Boco not guilty. Crown [57] The Crown argues there is not an air of reality to Mr.

Boco’s assertion that he was acting in self-defence or that he was engagedin a consensual fight. The Crown argues the determination of whether or not there is an air of reality requires a finding with respect toMs. Thandi’s specific involvement and the chronology of the events. [58] The Crown asserts Ms. Thandi’s evidence regarding her involvement and the chronology of events was not only internally andexternally consistent, but also consistent with the 911 call, the video and her physical injuries.

The Crown also points out that Ms.Thandi was unshaken during cross-examination and she was clear in her evidence when she denied punching at Mr. Boco. [59] The Crown encourages the court to reject Mr. Boco’s and Mr. Kena’s evidence. The Crown argues Mr. Boco’s evidencecontained major inconsistencies. The inconsistencies mentioned by the Crown include, embellishing his description of the punch, hisclaim on cross-examination that he had a panic attack when he was hit, his descriptions of the positioning of the parties, and the fact thatMr. Boco’s version of the events did not coincide with Ms.

Thandi’s injury to her knee. [60] As for Mr. Kena’s evidence, the Crown argues Mr. Kena’s evidence on the important issues of whether or not he saw Ms.Thandi swing at Mr. Boco and on the timing of Mr. Boco’s punch in relation to video clip 1 changed throughout his evidence. Accordingly, the Crown argues it would be unsafe to rely on Mr. Kena’s evidence. ANALYSIS Presumption of innocence and proof beyond a reasonable doubt [61] In R. v. Bacon and Bacon, 2010 BCPC 48, the Honourable Judge Lytwyn concisely set out the principles of presumption ofinnocence and proof beyond a reasonable doubt.

At paras. 6 - 8 she stated: [6] The presumption of innocence is the “hallowed principle lying at the heart of the criminal law, protecting the fundamentalliberty and human dignity of any and every person charged with criminal offences.” In light of the grave personal and socialconsequences of a finding of guilt, the presumption of innocence is essential in a society committed to fairness and social justice. R. v.Oakes (1986), (SCC), 1986 CanLll 46 (SCC), 24 C.C.C. (3d) 321 (S.C.C. at para. 9). [7] To rebut the presumption of innocence, the Crown must prove guilt beyond a reasonable doubt.

The standard of proof beyond areasonable doubt is inextricably linked to the presumption of innocence and the two concepts must be presented together as a single unit. “The presumption of innocence is the golden thread of criminal justice and proof beyond a reasonable doubt is the silver one, and thesetwo are forever intertwined in the fabric of the criminal law.” R. v. Lifchus (1997), (SCC), 1997 CanLll 319 (SCC),118 C.C.C. (3d) 1 (S.C.C. at para. 13).

[8] A reasonable doubt is not a far-fetched or frivolous doubt. It is a doubt based on reason and common sense; one that logicallyarises from the evidence or the lack of evidence. Proof beyond a reasonable doubt is something more than probable guilt; it is notenough to believe that the accused is probably or likely guilty. It is not, however, absolute certainty as it is nearly impossible to proveanything to absolute certainty. R. v. Starr (2000), 2000 SCC 40 (CanLll), 147 C.C.C. (3d) 449 (S.C.C.). [62] Mr.

Boco is presumed to be innocent and this presumption remains throughout the process and is only displaced if, afterconsidering all of the evidence, I am satisfied beyond a reasonable doubt that the evidence proves Mr. Boco’s guilt. [63] In light of evidence called on behalf of Mr. Boco, I am required to apply the principles enunciated in R. v. W. (D.), (SCC), [1991] 1S.C.R. 742. Specifically, if I believe Mr. Boco’s evidence I must acquit, if I do not believe the evidence Mr. Boco’sevidence, but I am left in a reasonable doubt by it, I must acquit, and even if I am not left in a reasonable doubt by Mr.

Boco’s evidence, Imust ask myself whether, on the basis of the evidence that I accept, that I am convinced beyond a reasonable doubt that Mr. Boco isguilty of assault by biting Ms. Thandi. The Bite [64] Mr. Boco denied biting Ms. Thandi. In doing so, his evidence was generally internally and externally consistent. He was notshaken on cross-examination on this point and despite some inconsistencies in Mr. Boco’s evidence, I believe him when he testified thathe did not bite Ms. Thandi. [65] In reaching my conclusion on the bite, I acknowledge Mr. Boco’s description of the events does not mention Ms.

Thandi fallingto the ground, however, in totality, the evidence is not clear when she fell and when or if she got back to her feet. Clearly, there was a lotof back and forth. [66] Even if I reject Mr. Boco’s evidence on the issue of the bite, the evidence from the Crown witnesses is lacking in reliability and,therefore, cannot be trusted as evidence to prove beyond a reasonable doubt that Mr. Boco bit Ms. Thandi. [67] With respect to the Crown’s evidence related to the bite, Mr. Thandi testified he saw Mr. Boco bite his sister and that he heardher scream.

I do not accept this evidence, I note the observations were made in the midst of chaotic event at a time when Mr. Thandiwas engaged in a punch for punch fight. A further problem with Mr. Thandi’s reliability is highlighted by his failure to note Ms. Thandifalling to the ground and by his failure to hear Ms. Thandi yell, “My hand, my hand, your biting me.” The proximity of the parties andMr. Thandi’s claim that he heard his sister scream makes magnifies this gap in his evidence. [68] As for the other bite evidence, I note material inconsistencies. Notably, Ms.

Stranack testified that around the time of the biteshe saw Ms. Thandi being hit and knocked to the ground. Ms. Thandi and Mr. Thandi make no mention of Ms. Thandi being hit. Furthermore, it is noteworthy Ms. Stranack’s evidence also failed to mention Ms. Thandi screaming, “My hand, my hand, your bitingme.” [69] Finally, Ms. Thandi testified the bite was with significant force. Yet, the photograph which was taken shortly thereafter is sofaint that one cannot conclude that any injury was suffered and, therefore, it does not assist. I also observe that Ms.

Thandi’s evidencechanged in that she originally testified that her right hand was bitten and yet during cross examination it changed to her left hand. Giventhe described force and pain involved, I am curious that she would not be able to properly recall which hand was involved. [70] In

summary, there are inconsistencies in the Crown’s evidence. I do not believe the inconsistencies are owing to the credibilityof the witnesses; rather, they are related to the reliability of the witnesses. As such, the Crown has failed to prove beyond a reasonabledoubt that Mr. Boco bit Ms. Thandi hand. The Punch Consensual Fight [71] After considering the history between Mr. Boco and Ms. Thandi, the absence of words or physical gestures leads me toconclude there is no air of reality to the notion of a consensual fight.

Specifically, there was no communication between them, there wasnot an escalation of behaviour, nor, was there physical posturing suggestive of a consensual fight. I also observe, and although notconclusive on the issue, Mr. Boco’s evidence was silent on his belief regarding Ms. Thandi consenting to a fight. Self-Defence [72] Mr. Boco argues he was acting in self-defence when he punched Ms. Thandi. Accordingly, Mr. Boco relies on s. 34 of theCriminal Code which reads: 34

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

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

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

c) the act committed is reasonable in the circumstances.

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

a) the nature of the force or threat;

(

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

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

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

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

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

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

h) whether the act committed was in response to a use or threat of force that the person knew was lawful [ 73 ] I am satisfied when Mr. Boco returned to the scene that he and Mr. Thandi became involved in a fight. I am also satisfied that during the fight there was substantial movement up and down the sidewalk. I find the movement was in and around a number of people and it was at this stage, and without this court deciding whether or not Ms. Thandi threw a punch, Mr. Boco perceived a punch being thrown at him from his left side. I also accept that Mr.

Boco punched back at the person who he believed was assaulting him and his punch was for the purpose of protecting himself. [ 74 ] As for the punch itself, I am satisfied that it was reasonable given the circumstances. In reaching my conclusion, I note Mr. Boco was being pursued down the side walk, around a number of people, and it was at this time that he responded with a single punch to a person he reasonably perceived was punching at him. [ 75 ] I have considered the Crown’s arguments regarding Mr. Boco’s evidence and the apparent inconsistencies. I agree that Mr.

Boco became more descriptive while being questioned about the punch. In my view this is understandable given the requests for greater description. [ 76 ] As for the submission that Mr. Boco’s evidence does not align with the injury Ms. Thandi suffered to her knee. I agree with the Crown, however, I also accept that it is entirely possible that Mr. Boco, like Mr. Thandi, simply did not see her fall or get to her feet. [ 77 ] I appreciate that Mr.

Boco’s evidence regarding his movements and the movement of others appeared confusing and appeared to change as his evidence went on, however, I observe the incident was an active fight involving lots of movement up and down the sidewalk; hence, it is entirely reasonable that he experienced some difficulty in describing the events. [ 78 ] In accessing all of the evidence, I have considered the video and the 911 call. In my view, the video only assists in confirming that there was a point when Mr. Thandi was pursuing Mr. Boco and that there were others in the area that were making comments to Mr.

Boco. [ 79 ] As for the Crown witnesses, their evidence in relation to the bite taints the reliability of all of their evidence. As for the punch incident, I observe a significant inconsistency in that, Ms. Thandi stated she was pulled and then punched and yet, Ms. Stranack and Mr. Thandi were silent on seeing Ms. Thandi being pulled and then punched. I find this significant as the pull, according to Ms. Thandi`s evidence, appeared to be intertwined with the punch. A further concern with the Crown`s evidence is Ms.

Stranack’s comment during her 911 call where she advised the operator that her friend was thrown to the ground. This is in contrast to her evidence where she testified she saw Ms. Thandi get punched and fall to the ground. [ 80 ] A final observation regarding the Crown`s evidence is, Ms. Thandi testified that when Mr. Boco returned to the scene he shouted, “Where is he ?” and yet, Ms. Stranack’s and Mr.

Thandi’s evidence is silent on this point, and yet, both testified they saw him return. [ 81 ] In my view, the discrepancies between the Crown witnesses causes me to question their reliability and undermines the strength of the Crown’s case. [ 82 ] In all of the circumstances and after considering the evidence that I accept, I find Mr.

Boco reasonably believed he was about to be assaulted and he reasonably believed that the assault was coming from a person immediately to his left and that he punched the person who he believed was trying to assault him, and the purpose of punch was to protect himself, further, that his actions were reasonable in the circumstances and the Crown’s evidence fails to disprove these findings. [ 83 ] Accordingly, I find Mr. Boco not guilty of assaulting Ms. Thandi. _____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia