R. v. S.H., 2020 BCPC 125

Citation: R. v. S.H. 2020 BCPC 125 Date: 20200625 File No: 2612-1 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth Criminal Justice Act REGINA v. S.H. PUBLICATION BAN YOUTH MATTER – RESTRICTION ON ACCESS ss. 110 – 111 and s. 118 and YCJA CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: S. Avery Counsel for the Defendant: C. Hutchinson Place of Hearing: [omitted for publication] , B.C.

Date of Hearing: July 15, 16, & 17, 2019 and March 3, 4, & 5, 2020 Date of Judgment: June 25, 2020 A Corrigendum was released by the Court on June 26, 2023. The correction has been made to the text and the Corrigendum is appended to this document.

Introduction [ 1 ] Fifteen-year-old SH is before the Court charged with assault causing bodily harm to and assault with a weapon of MVT. The genesis of the altercation giving rise to the matter before the Court is an ongoing feud between two friend groups of adolescent girls attending [omitted for publication] Secondary School. The accused, SH, belonged to one group and the complainant, MVT, belonged to the other. Like most modern young people these friend groups used electronic communication technology and various social network platforms to communicate.

Sadly, some members of these friend groups also used social media to intimidate, humiliate, and distress others. [ 2 ] On Tuesday, December 11, 2018, on what began as a dispute between their younger sisters resulted in a physical altercation between SH and MVT. At that time SH was 14 and in Grade 9; MVT was 15 and in Grade 10. Either by accident or design, SH and MVT encountered each other in the high school’s girls’ bathroom. SH had gone there to eat her cup of instant ramen noodles she had recently prepared; MVT went there to use the facilities.

The girls swapped petty insults and told each other to “fuck off.” MVT accused SH of making fun of her appearance and her family. SH insisted it was not her but her younger sister who made these derogatory remarks. Both girls began video-recording the other on their cell-phones. Within minutes of their encounter, SH threw the hot contents of her cup of noodles at MVT causing serious second and third degree burns to MVT’s chest. Issues: [ 3 ] There is no issue that on December 11, 2018, SH threw the hot contents of her cup of noodles at MVT. There is no issue the hot noodles caused MVT serious bodily injury.

The following issues remain in dispute: a. Did SH intended to throw the noodles at MVT? b. Were the noodles a weapon? c. When throwing the noodles, did SH act in self-defence? [ 4 ] This matter came before me for trial on July 15, 16, and 17, 2019, and on March 3, 4, and 5, 2020, in [omitted for publication] Provincial Court. I heard from Crown witnesses Corporal Fraser Bjornsen, MVT, SML, and PB. I heard from Defence witnesses, SF and SH. I received into evidence the following Exhibits: Exhibit 1: Statement of Admissions of Facts and Documents.

SH admits identity, jurisdiction, MVT’s medical documents and photographs of her injuries; Exhibit 2: Video-recorded statement of MVT made December 12, 2018; Exhibit 3: Transcript of MVT’s December 12, 2018 recorded statement; Exhibit 4: Four pages of screen shots of Facebook communications sent on or about December 7, 2018; Exhibit 5: MVT’s video clip of the incident in the bathroom on December 11, 2018; Exhibit 6 : Laser coloured photograph of a screen shot of a post made by SF on December 11, 2018; Exhibit 7 : Laser coloured photograph of a screen shot of a post made by RLS on December 11, 2018; and Exhibit 8: Three pages of screen shots form Instagram of images IMG 1300, 1372, 1373, 1374, and 1411 dated December 8, 2017, December 30, 2017, December 7, 2018, and December 11, 2018. [ 5 ] In these Reasons for Judgment I will generally refer to the young witnesses by their first names.

In doing so, I mean no disrespect or undue familiarity. I do so for narrative convenience and because this is how they referred to one another. [ 6 ] My decision in this matter, originally scheduled for April 7, 2020, was postponed until today due to the COVID-19 crisis. [ 7 ] On July 15, 2019, the first day of trial, the Court conducted a s. 715.1 Criminal Code voir dire to determine the admissibility of MVT’s video-recorded statement to the police made on December 12,

Section 715.1 provides that a video-recorded statement of a witness who was under the age of eighteen years at the time of the alleged offence “is admissible in evidence if the victim . . . while testifying, adopts the contents of the video-recording, unless the presiding judge is of the opinion that admission of the video-recording in evidence would interfere with the proper administration of justice.” After reviewing the video-recording and hearing from the police interviewer, Corporal Fraser Bjornsen, and the Complainant, MVT, both in direct and cross-examination, I concluded the video recorded interview was admissible as part of MVT’s direct evidence and the video-recorded statement and the transcript of that statement became Exhibits 2 and 3 on the trial proper.

I held the Crown satisfied the following five prerequisites for admissibility: a. the child or witness must be under 18 years of age at the time the offence is alleged to have been committed (MVT was 15 years old); b. the video-recording must be made within a reasonable length of time after the alleged offence (the recording was made the day after the offence); c. the victim or witness must describe the acts complained of (MVT said in her statement, so [SH] felt like she was tougher than me cause there were two of them and . . . when she had the noodles behind her you can see the steam cause it was so hot and so she grabbed them and I was like oh she’s gonna leave, she’ll leave the bathroom and then she ripped the lid off and . . .

I was so close to her but if I didn’t move back she would have . . . threw it all onto my face cause there’s so much of it and

so much water and I moved back and it hit me from . . . my chin down . . . to the bottom of my chest and I was so in shock . . . I bent down for a second and cause I couldn’t breath since the noodles were so hot. . . ; d. while testifying, the victim or witness must adopt the contents of the video-recording (MVT remembered: (

a) going to the police station, who she was with and what happened at the police station; (

b) giving the statement to Corporal Bjornson, being told to tell the truth and telling the truth; (

c) her conversation with Corporal Bjornson and talking to him about the incident); and e. as the presiding judge I was of the opinion that admission of the video-recording in evidence would not interfere with the proper administration of justice. Background Facts [ 8 ] The matter before the Court involves a number of students attending [omitted for publication] Secondary School (“SS”) in [omitted for publication], BC, including: a. The accused SH (“SH”), who was 14 years old and in Grade 9 at the time of the offence. SH was born [omitted for publication]; b.

SH’ younger sister, SD (“SD”), who was 13 years old and in Grade 8, at the time of the offence; c. The complainant, MVT (“MVT”), who was 15 years old and in Grade 10, at the time of the offence. MVT was born on [omitted for publication]; d. MVT’s younger sister, JYVT (JYVT) who was 13 years old and in Grade 8, at the time of the offence; e. MVT’s friend GV (“GV”); f. SH’s friend, SML (“SML”), who was 17 years old and in Grade 11, at the time of the offence; and g.

SH’s friend, SF (“SF”) who was 17 years old and in Grade 11, at the time of the offence. [ 9 ] All of the students cited above reside with their families in the [omitted for publication] area. SH, SD, SML, and SF belonged to one friend group (“SH’s faction”), and MVT, GV, and JYVT to another (“MVT’s faction”). This is not to suggest that either SH or MVT headed either of these friend groups. [ 10 ] SF dated SH and SD’s brother RLS; SML dated their brother RCH. SH’s faction also included AS, MJ, and LS. MVT’s faction included STN, RSM, and ACT.

Only SH, MVT, SML, and SF testified in the trial. [ 11 ] MVT’s parents, JVT and PVT are both teachers. In 2018, JVT taught at SS. [ 12 ] In the fall term of 2018, SS was beset by a spate of “Bro fights” or consensual “friendly fights” which were popular on YouTube at the time. SS administrators considered this activity unsafe and suspended students involved in Bro fighting while at school. [ 13 ] Occasionally SS students were either the victim or perpetrator of cyberbullying, and sometimes both.

Using various social media platforms such as Facebook, Instagram, and Snap Chat, the offending students published comments intended to denigrate, intimidate, or humiliate their nemesis. These messages, sometimes banal, sometimes malevolent, inevitably played out in the students’ interactions at school. Students often brought screenshots of the offending posts to the attention of SS’s Principal and Vice-Principal.

Unfortunately, the school administrators had limited jurisdiction to deal with the communications if they occurred off SS premises. [ 14 ] The animosity between the two factions is rooted in a conflict which festered between MVT and SF since MVT entered SS in Grade 8. In 2017 the hostilities expanded to include SD and JYVT, whose friendship soured over a boy.

On December 8 and 30, 2017, MVT sent threatening messages to SD over Instagram to stop bullying JYVT (see Exhibit 8). [ 15 ] MVT testified that in November 2018, members of SH’s faction began making rude, nasty, and hurtful remarks to MVT’s faction in the SS hallways. MVT did not know what incited this verbal abuse, but supposed SF the catalyst. [ 16 ] On December 7, 2018, AS posted to her Facebook page a photograph of someone with pronounced eyebrows (see Exhibit 4).

The photograph is immediately followed by a post from SD which states, “reminds me of one of the [VTs] lmfaoooo.” “LMFAO” is an acronym for “laughing my fucking ass off.” MVT read this post and responded to SD: Remember when you got slugged in the face today by [ATB] and now you have a big bump on your head. Come at me next [smiling emoji] [See: Exhibit 8] [ 17 ] MVT is referencing the fact that SD had engaged in a “Bro fight” with ATB on December 7, 2018. MVT received a digital video of that fight from another student and published it on AS’s Facebook profile.

MVT said she did this in response to nasty comments made to her in the school hallways from members of SH’s faction. SD said in response to MVT’s comments: ‘Remember’ that was just today lol it's not even bad. I'm ready you probably fight like a bitch too lmfao To which MVT replied, “See you soon :)” to which SD commented, “sounds good hun”. [ 18 ] SF and SH considered MVT’s comment, “See you soon” as a threat to SD.

SF chimed into the cyber conversation by telling MVT to “grow tf up [emoji] she’s 13 years old, act your fucking age.” This provoked a response from MVT and a further reply from SF and then a comment from SH to MVT:

Where’s your fight video? [ 19 ] SH testified with this comment she intended to “call [MVT] out” because “MVT was trying to call SD out when she couldn’t even like put her own video up there.” The fight SH refers to is one in which MVT had engaged the previous year with TM. MVT claimed SF engineered the confrontation by telling TM falsehoods in order to incite TM against MVT. In any event, MVT was not aware of there being any existing video of that fight. SD responded to MVT’s post: remember when you got your ass got clapped when you and [TM] fought?

Lmfao ready for it again [Emoji] [ 20 ] The conversation captured in Exhibit 4, devolved into SD and MJ levelling insults at MVT. For example, SD went on to post comments to MVT: and I’m like at least I ain’t got no fake ass body and have to get ass injections for your lips and ass lmfao . . . wouldn’t wanna be fat asf [as fuck] hanging my fat out walking around . . . Look at your old pics compared to your recent ones lmfao LIP INJECTIONS . . . making yourself look like a goof, nobody likes you MVT. Once you go to party’s everyone wants to beat your ugly ass. Lmfao [ 21 ] SD tagged SF to look at the postings.

After SD’s last comment, MJ joined the conversation with two laughing emoji with tears of joy, commenting: The [VT] girls make me laugh [emoji of 100 ] To which SD responded: “me too,” to which MJ replied: SD [emoji of 100 ]. SD then says: There known as having: big ass sixheads, stuck up attitude and plastic surgery faces . . .

I can’t forget the fucked up… [ 22 ] SH agreed that in the Facebook conversation marked Exhibit 4, it was actually MVT who was being bullied. [ 23 ] In the morning of December 10, 2018, SF met with Vice Principal PB and showed him some of the screen shots of messages from SD’s conversations with MVT on Instagram (Exhibit 8) and Facebook (Exhibit 4). PB understood from SF that MVT was bullying SD, a girl two years younger than MVT. SF claimed that because of MVT, SD feared going to school. [ 24 ] PB told SF that because these conversations occurred off school property he was limited in what he could do.

SH had never discussed any concerns she had with MVT before SF met with PB on December 10, 2018. In fact SH only learned of SF’s meeting with PB sometime after December 11, 2018. [ 25 ] PB showed the postings SF gave him to JVT who agreed to speak to MVT. Later that day MVT and JVT came to PB’s office and let him know there was more to the story than what SF had disclosed.

PB learned that there had been a feud between SH’s faction and MVT’s faction which had been ongoing before PB had arrived at SS. (PB had transferred to SS in August 2018 from the Northwest Territories.) [ 26 ] MVT felt she was been targeted by the Exhibit 4 posts and took screen shots of the conversation to her parents. JVT showed these posts to PB and then she and PVT met with him early on December 11, 2018, before the morning assembly. MVT believes she was at that meeting; PB recalls only her parents attended. The VTs had wanted to meet with Principal VDK , but he was on short-term medical leave.

JVT advised her daughter not to engage with SH’s faction because they were unpredictable, but MVT was angry at their attempts to intimidate her. [ 27 ] In the afternoon of December 10, 2018, PB suspended four girls for engaging in a Bro fight over the lunch hour that day. SD was one of the suspended students. Unbeknownst to him at the time, SD had also engaged in a Bro fight on December 7, 2018, with ATB.

Given the prevalence of this phenomenon, SS administrators decided to hold another all-school assembly the following day to emphasize the dangers of and alternatives to Bro fighting. [ 28 ] After speaking with the VTs on December 11, 2018, PB decided to arrange an all party meeting of the feuding students and their parents to try and put an end to the conflict. At that time SD had been suspended so PB assumed he had a couple of days to set up a meeting. [ 29 ] SH was unaware the VTs had met with PB.

SH testified that prior to December 11, 2018, she had not had any fights or arguments with any member of the VT family. [ 30 ] On the morning of December 11, 2018, SS administrators held a school wide assembly in an effort to impress upon the students the dangers of Bro fighting. This assembly was more or less a repeat of the December 10, 2018 assembly.

[ 31 ] Either during or after the assembly, SH’s friend DMN sent her a Snap Chat message in which he told her some girls were talking and laughing about her, saying she was hiding behind the gym door. Upset at DMN’s snap , SH left the assembly and went directly to PB’s office. [ 32 ] MVT testified that on the morning of December 11, 2018, while SD was suspended, SH, MJ, and Laney posted online comments they wanted to fight MVT for “whatever reason.” [ 33 ] SH and PB’s evidence differs on what it was SH said in their meeting. They do agree, however, that SH came to the office to complain about MVT.

PB says SH was angry and combative, saying she wanted to “kick MVT’s ass.” SH says she showed PB the screen shot of DMN’s Snap Chat message and told PB she didn’t want anything more to do with MVT and she wanted to solve the problem. [ 34 ] When she calmed down, PB directed SH to return to class, which she didn’t do. Instead SH went to her locker, retrieved a cup of noodles and took it to the office where the school administrative assistant filled it with boiling water from a kettle. With her cup of noodles in hand, SH went directly to the west girls’ bathroom to eat them.

She set them on the bathroom counter to cool and began texting others on her cellular phone. It was now about 10:40 a.m. and at that moment SH was alone in the bathroom. [ 35 ] Thirty seconds after SH went into the bathroom, MVT arrived. MVT had been in her social studies class in the computer lab which was about five classrooms away from the west girls’ bathroom. Her teacher gave MVT a hall pass to go to the bathroom. MVT says she went directly to the west girls’ bathroom, which was the closest bathroom to the computer lab. She did not stop off at her locker. At the time, the halls were empty.

MVT saw SH earlier that morning in the hallway on the way to the morning assembly, but they didn’t speak to one another. [ 36 ] SH testified that while she headed to the bathroom with her cup of noodles the hallways were empty, except for MVT, who was at her locker. SH believes MVT saw her and followed her into the bathroom. MVT denies following SH or going to her locker before entering the bathroom. [ 37 ] When MVT entered the bathroom. She started to head for the stalls when she saw SH leaning against the counter looking at her phone.

SH’s cup of noodles were sitting beside her on the counter, but MVT did not see them. SH laughed; MVT thought SH was laughing at her and asked her what was so funny. SH replied, “Your ugly face.” [ 38 ] SH pulled out her phone, and MVT believed SH was taking a video or a picture of her and sending it to her friends. MVT asked SH why she was doing this.

Looking directly at MVT, SH responded, “because you’re so ugly and I just wanted to show everyone how ugly you were . . . your whole family’s ugly.” [ 39 ] MVT became worried SH’s faction were going to come into the bathroom and attack her because there were no surveillance cameras in the bathroom. MVT pressed the record button and set her phone on the counter so she could record the events. SH says she only began recording MVT when MVT started recording her. [ 40 ] MVT’s initial attempts to record her and SH’s interaction failed. SH’s video-recording succeeded and SH posted it to her Snap Chat story.

SH said she did this because she “ wanted people to see [MVT’s] true colours.” SML, then in math class, watched the video and snapped back to SH’s story, asking her what was going on and if she was okay. SH sent SML a message, telling her she was in the bathroom by the stairs, and ask her to hurry. SML agreed and ran out of class to the west bathroom because she was worried about SH.

SML’s math class was one classroom or 50 feet away from the west bathroom. [ 41 ] SML testified SH’s Snap Chat video of her encounter with MVT in the west bathroom did not depict any yelling or threats or physical altercation, just SH and MVT bickering back and forth. The only comment SML recalls is MVT saying to SH, “You say I get lip injections. You say I get plastic surgery because you're flat." [ 42 ] After a minute or so MVT realized her phone was not audio-recording. She retrieved it from the bathroom counter where she had placed it and began video-recording SH (see Exhibit 5).

MVT believes at the time they were standing about six feet apart; SH says they were standing somewhat closer. The video depicts SH leaning against the counter using her phone. SH and MVT are arguing: MVT: we are not in kindergarten, you can go fuck off SH: you go fuck off MVT: fuck off SH: you fuck off MVT: stop shaking SH: I’m not shaking MVT: Yes you are, you are like “oh my god,” so leave. SH: You fucking leave [Approximately 12 seconds into the video, SML enters the bathroom] MVT: No, I need to use the bathroom, sorry SH: Use the bathroom then

MVT: I have go, and I feel awkward SML: It’s a public bathroom - if she needs to go, she needs the bathroom too MVT: I know, but she is making fun of me. SH: Making fun of you, how? MVT: You say I get lip injection, butt injections, you make fun of my family, for no reason SH: Who said? Who said? MVT: I have screen shots SH: Of my sister saying that, I know. MVT: You said it too. You wanted to fight me for no reason SH: When did I say that? MVT: You and SD and MJ; I am all alone.

SH: I never said that ever [while continuing to text on her phone] MVT: I have it on here SH: You’re assuming that MVT: I have it on here SH: yeah you are MVT: No, I have on here. [SH turn around, puts down her phone on the counter, picks up her cup of noodles, takes off the lid and throws its contents towards the camera.] [ 43 ] After about one minute, MVT threw her phone on the counter, the images scramble and then screen goes dark. For the next 20 seconds or so there is yelling and crashing and thumping.

About 10 seconds after the screen goes dark, SML can be heard yelling at MVT, “get off her.” At about one and one-half minutes from the start of the video, it sounds as though the girls had left the bathroom. The video ends with MVT’s teacher, BVH, asking, “What is going on here?”, and picking up MVT’s cell phone. The video-recording ends with BVH shutting off the phone after two minutes and 18 seconds. [ 44 ] SML, who witnessed SH and MVT’s altercation, testified in her examination-in-chief: Q And so what happened then when you got inside the bathroom?

A MVT said, "I'm just trying to use the bathroom and she's bothering me." Q And she said that to you? A Yeah. Q And did you say anything back? A I said, "Well, it is a public bathroom." Q And then what happened next? A She said, "Yeah, I know, but," and they started arguing again. I wasn't really listening to the argument, so I can't clarify what they both said. But I know they were saying mean things. Well . . . Q Did you go there to assist SH? A No. Q And so, what happens after they were saying mean things to each other? A Well, I'm just trying to remember, sorry. Nothing really happened.

Like, they were recording each other the whole time. And then, I think MVT said something that like, triggered SH to do that. Q And what do you mean by "to do that"? A Throw the noodles at MVT. Q And can you describe how SH did that?

A The noodles were behind her. She was leaning against the counter. And she put her phone in her pocket and then she just grabbed the noodles and like went like that. Q And when you say "She went like that," can you just describe that for the Court? A She kinda just tossed it like that. Q Where did she toss it? A On MVT's chest. Q And did you notice the noodles when you first walked into the bathroom? A No. Q And did you -- did you see SH turn around and grab the noodles? A Yeah. Q And what did you think she was gonna do? What did you think was gonna happen at that point?

A I honestly thought we were just gonna walk out. Q And what made you think that? A Her movement. Q And what do you mean by that? A Like I -- the way she put her phone in her pocket and the way she grabbed it, I thought we were just gonna leave. (The video clip shows SH placing her cell phone on the counter, not in her pocket.) [ 45 ] SML said after SH threw the noodles, MVT rushed at her. They stumbled over the garbage bin and landed on the floor. SH was lying on her back with her head on the floor; MVT was on top of her.

MVT had her hands on SH head pushing it into the floor; SH was trying to push MVT off of her. Neither girl was punching or hitting the other. The video suggested this phase of the altercation lasted under 20 seconds. [ 46 ] SH tried to push MVT off her with her legs. SML pulled MVT off SH. SML said she did this by grabbing MVT’s waist and hair. MVT got up and left the bathroom leaving SH huddled on the floor. As MVT was leaving the bathroom SH got up and threw the garbage can at MVT’s back. Once MVT had left the bathroom she began to feel intense pain. She ran to BVH’s classroom for help.

BVH and JVT helped remove the burning hot noodles lodged in MVT’s sports bra and sought her medical assistance.

Meanwhile, SML took SH to the office. [ 47 ] The video clip (Exhibit 5) indicates that all three girls left the bathroom less than a minute and one-half after MVT started her video-recording with her comment, “We are not in kindergarten, you can go fuck off.” [ 48 ] As Snap Chat erases the recording once it is read, there is no extant copy of SH’s video of her bathroom encounter with MVT on December 11, 2018, or none that was tendered in evidence at the trial. [ 49 ] MVT was taken to the hospital by ambulance.

Later that evening (at about 8:55 pm) MVT sent a text message to her friend, GVP, in which she states: I went to the bathroom and that stupid [SH] girl was in there and was saying these things under her breath, so I got in her face.

And it was like recording what she was saying and what I was saying and I told her to fuck off, and she threw like her boiling noodles at my chest and it hurt but I was so mad, and I ran at her, and I hit her head on the floor like how many times because she tried to get out and now, I have second degree burns so fuck [ 50 ] MVT says she was still in shock when she sent the message to GVP. She denies being aggressive toward SH or that she had pushed SH’s head to the floor more than a couple of times after been hit by the noodles.

While this was occurring, SML was pulling MVT off of SH. [ 51 ] SH says that while in the bathroom she was fearful of MVT and when MVT continued to ask her to leave, SH “was just getting triggered and triggered and triggered and triggered.” SH says she remember grabbing her cup of noodles, but “blacked out” and has no memory of throwing the noodles at MVT. Her memory resumes with falling on the bathroom floor. [ 52 ] MVT suffered second and third degree burns on her upper torso as a result of being struck by the hot noodles. She required skin grafts and has significant scaring.

MVT testified that had she not stepped back just before SH threw the noodles, they would have landed on her face. [ 53 ] Unfortunately, the severity of the incident did not quell the two factions’ appetite for pejorative postings on social media. Legislative Framework [ 54 ] SH is charged with assault under s. 267 of the Criminal Code with assault causing bodily harm and assault with a weapon.

Section 267 states: Assault with a weapon or causing bodily harm 267. Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of anoffence punishable on

summary conviction who, in committing an assault, a. carries, uses or threatens to use a weapon or an imitation thereof, b. causes bodily harm to the complainant . . . [55] An assault under s. 267 incorporates the definition of assault set out in s. 265(1)(

a) of the Criminal Code, which states: 265. (1)) A person commits an assault when a. without the consent of another person, applies force intentionally to that other person, directly or indirectly; [56] Before the Court can convict SH of assault under the Criminal Code, the Crown must prove each of the following elementsbeyond a reasonable doubt: a. that SH applied force to MVT; b. that SH intentionally applied the force; c. that MVT did not consent to the force that SH applied; and d. that SH knew that MVT did not consent to the force that SH applied. [57] The strength of the applied force is immaterial; the slightest touching of another person without their consent can constitute anassault.

Section 265(2) of the Criminal Code expressly provides that this "section applies to all forms of assault, including . . . assaultwith a weapon... and assault…causing bodily harm." [58] The word intentionally is related to the application of force or to the manner in which force is applied. All that is required toestablish the mens rea of the offence of assault is an intentional, non-consensual touching. The word intentionally means simply, notdone by accident or through honest mistake: The Queen v. George, (SCC); R. v. Dawydiuk, 2010 BCCA 162 ,at para. 29; R. v.

D.J.W., 2011 BCCA 522 , at para. 70. [59] Assault is a general intent offence. In R. v. George, Fauteux J. said, at p. 877: In considering the question of mens rea, a distinction is to be made between (

i) intention as applied to acts considered in relation to theirpurposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of

an act is,in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specificintent attending the purpose for the commission of the act. Upon citing this passage in R. v. Bernard, (SCC), McIntyre JJ. States: This statement makes the distinction clear. The general intent offence is one in which the only intent involved relates solely to theperformance of the act in question with no further ulterior intent or purpose. The minimal intent to apply force in the offence of commonassault affords an example.

A specific intent offence is one which involves the performance of the actus reus, coupled with an intent orpurpose going beyond the mere performance of the questioned act . . . Count 1: Assault causing bodily harm (s. 267(

b) CC) [60] "Bodily harm" is defined in

section 2 of the Criminal Code, as meaning "any hurt or injury to a person that interferes with thehealth or comfort of the person and that is more than merely transient or trifling in nature." [61] Before the Court can convict SH of assault causing bodily harm pursuant to

section 267(

b) of the Criminal Code, the Crownmust prove beyond a reasonable doubt SH assaulted MVT and in committing this assault SH cause MVT bodily harm. Count 2: Assault with a weapon (s. 267(

a) CC) [62] Before the Court can convict SH of assault with a weapon pursuant to

section 267(

a) of the Criminal Code, the Crown mustprove beyond a reasonable doubt SH assaulted MVT and in committing this assault she carried, used, or threatened to use a weapon,which in this case, is the contents of a cup of noodles. [63] The Defence disputes that the noodles are a weapon as defined in the Criminal Code, which defines “Weapon” in

section 2 asmeaning “anything used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose ofthreatening or intimidating any person.” [64] MVT was injured, of that there is no dispute. Whether MVT was threatened or intimidated is not in issue. In this case, to provethe final element of assault with a weapon, the Crown had to prove only that SH used the noodles to injure MVT and that injury wasreasonably foreseeable in the circumstances: In R. v. Lamy, 2002 SCC 25 , at para. 11-16. Assessing reliability and credibility

[65] Assessing credibility engages a number of factors, including: (

a) the plausibility of the witness’s evidence; (

b) any independentsupporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence; (

e) the“balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright without any personal motive or agenda;and to a lesser extent (

f) the witness’s demeanour while testifying, meaning not so much what is said but how it is said. [66] It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true. Evidence that is crediblemay nevertheless be unreliable: R. v. H.C., 2009 ONCA 56 at para. 41 citing R. v. Morrissey, (ONCA). [67] I am mindful that four of the witnesses were adolescents at the time of the offence. When they testified at trial, SH was 15 yearsold, MVT 16, SML 18, and SF 19.

The Supreme Court of Canada has cautioned trial judges not to impose the same “exacting standards”in assessing the evidence of young witnesses as they do adults: R. v. B. (G), (SCC), [1990] 2 S.C.R. 30, para. 48. Thisis not to say the Court lowers the standard of proof when dealing with a youth. It remains proof beyond a reasonable doubt. Still, whenassessing the credibility of a youth, the Court must take a common sense approach. When considering inconsistencies, particularly as to“peripheral matters” such as time and location, the Court must contextualize these with the age of the witness.

A flaw in a youth’stestimony should not be given the same effect as a similar flaw in an adult witness: R. v. O.M., 2014 ONCA 503, para. 51 – 53. Assessing Reasonable Doubt [68] The principal safeguard to ensure no innocent person is convicted is the presumption of innocence and the burden on the Crownto prove the essential elements of the offences charged beyond a reasonable doubt. Although the standard is not absolute certainty, proofbeyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities: R. v. Starr, [2000] S.C.R. 144. [69] 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. It is intended to assist judges in properly applying the conceptof reasonable doubt to issues of credibility. It provides: 1. If I believe the evidence of the accused, I must acquit. 2. If I do not believe the testimony of the accused but it leaves me in reasonable doubt as to the guilt of the accused, I must acquit. 3.

Even though I am not left in doubt by the evidence of the accused, on the basis of the evidence I do accept, I must be convincedbeyond a reasonable doubt by that evidence of the guilt of the accused. 4. If, after careful consideration of all the evidence, I am unable to decide whom to believe, I must acquit: R. v. C.W.H., . [70] In W. (D), Cory J. states that an accused’s evidence is not examined in isolation.

Reasonable doubt as to the accused’s evidencemust be determined “in the context of the evidence as a whole.” When assessing SH’s evidence, I must consider it in light of theevidence of all the witnesses, including MVT’s. [71] In determining what to believe, I may accept all, some, or none of a witness’s testimony; furthermore, I may accord differentweight to different parts of the evidence that I have accepted: R. v. R.E.M., 2004 BCSC 1679, at para. 44.

Assessing the reliability of the witnesses who testified at trial [72] I accept all the witnesses who appeared before me had the capacity to observe, recall, and recount the events to which theytestified; however, this does not mean that I accept they always did so truthfully or accurately. Assessing the credibility of the witnesses who testified at trial [73] I have set out below my assessment of the witnesses’ credibility as they appeared in trial. Crown witness: Corporal Fraser Bjornsen [74] Corporal Bjornsen was the lead officer who investigated the offence and interviewed MVT on December 12, 2018.

I findCorporal Bjornsen a credible witness and I accept his evidence accurate and trustworthy. Crown witness: MVT [75] Plausibility of the evidence. In most respects I found MVT’s version of events plausible as much of her evidence wascorroborated by other witnesses or documents marked as exhibits at trial. However, I do not find it plausible that MVT’s faction did notsay or do anything to antagonize SH’s faction. [76] Independent supporting or conflicting evidence. The incident underpinning the offences were captured on video whichsupport MVT’s version of events.

SML, who saw SH’s Snap Chat video of the bathroom encounter, confirmed that neither SH nor MVTwas making any threats to the other and there was no physical altercation.

SML’s impression of SH’s video was that SH was recordingMVT and MVT was recording SH and they were saying mean things to each other. [77] MVT’s evidence she was with her parents at their meeting with PB on the morning of December 11, 2018, is contradicted by PB.He recalls MVT and JVT meeting with him in the afternoon of December 10, 2018. [78] MVT’s suggestion that she was benignly asking SH why she was being aggressive and intimidating is contradicted by Exhibit 5and MVT’s December 12, 2018 statement wherein she says: . . . as soon as [SH] seen me she started laughing at me . . .

I don’t know why but and she pulled out her phone . . . I don’t know if she

was taking a video or picture of me and I’m thinking it was to send to her friends and so I wasn’t just gonna let that go and let her thinkthat she was more than I was so I stopped and I went like almost as close as like me to the window I was standing from her and so it’slike what are you laughing at and like what’s so funny and why are you taking pictures of me? And she wouldn’t say much cause I knewshe was kind of like nervous because she was by herself. . . [79] MVT explained her remarks at trial as follows: Q . . . So when you said, ". . .

I wasn't just gonna let that go and let her think that she was more than I was," what did you mean by that? A It meant that I wasn't going to let her make fun of me. Q And so how did you plan on dealing with that? A I was going to ask her why she was doing that, and asking for her to stop because I don't see what was so necessary to do that. Q And did you ask her those things?

A Yeah, I did. [80] In my view MVT downplays her own penchant for brinkmanship as apparent by her demands to SH to leave the bathroom and to“stop shaking” (although if SH was shaking, it was barely perceptible), and to her comments over social media to SD, SF, and GVP. I amleft with the impression that since December 11, 2018, MVT has “re-envisioned” her conflict with SH’s faction casting herself in the roleof the peacemaker. [81] MVT testified that after they tripped over the garbage can in the bathroom, she was on top of SH, punching her.

This evidence iscontradicted by both SML and SH who describe MVT as using her hands to put continuous pressure on SH’s head to push it downwardtoward the floor. SML, who was observing this fracas testified that MVT did not hit or punch SH. [82] External consistency. MVT’s suggestion at trial that she remained calm and simply wanted to ask SH what her problem waswith her family is inconsistent with MVT telling SH “fuck off” and with MVT’s text to GVP that she had “gotten in [SH’s] face” and “hit her head on the floor like how many times because she tried to get out.” [83] Internal consistency.

MVT’s oral evidence at trial was more or less consistent with what she told Corporal Fraser in herDecember 12, 2018 statement. In R. v. Untinen, 2017 BCCA 320 (application for leave to appeal to the Supreme Courtdismissed, May 10, 2018, 37883), the BC Court of Appeal held the complainant’s video-recorded evidence cannot be used to bolster hercredibility simply because it is consistent with the witness’s in-court testimony.

Mere consistency between the complainant’s in-courtand out-of-court statements does not make the complainant’s evidence more credible and cannot be used to confirm or corroborate thetestimony. [84] The appellate court in Untinen went on to say: [80] In

summary, consistencies between a complainant’s out-of-court video statement and her in-court testimony may provide importantcontext that informs the trier of fact’s evaluation of a defence challenge to her credibility or reliability. Consistency of account coulddispel, or at least blunt, a defence claim that inconsistencies undermine the witness’s credibility or reliability. Again, this is not usinginternal consistency to corroborate the witness’s evidence.

Although not made in the context of video-recorded statements admittedunder the Code provisions, I find persuasive, and applicable to this context, the analysis of David M. Paciocco (now Paciocco J.A.) inThe Perils and Potential of Prior Consistent Statements: Let’s Get It Right, (2013), 17 Can. Crim. L. Rev. 188 at 198: There is nothing, therefore, to prevent a party from pointing to the consistency between the prior related statement and the testimony oftheir witness.

This is not done to prove that the witness was being truthful in their testimony on those matters -- the mere making of priorconsistent statements does not prove credibility nor do prior consistent statements of a witness corroborate their in-court testimony. Theconsistencies are relevant solely to enable the decision-maker to judge whether the relevant statement is really materially inconsistentwhen looked at as a whole, and to gauge the impact that any differences in detail should have on the overall credibility and reliability ofthe witness.

In effect, the consistent features of the prior statement do not add affirmative weight to the party’s scale. They are usedsimply to knock the “inconsistency” challenge off of the opposing party’s scales, or to reduce the weight of those inconsistencies thatmay remain. [85] Balance. As I have indicated previously, I find MVT tended to downplay her incendiary role in the conflict between the twogroups. For example: Q Now, in the beginning of the video, we see that you are making some comments to SH, were you trying to provoke her to have a fightwith you? A No. Q Why did you continue to engage with her?

A Because I needed the bathroom. I felt intimidated by her and I didn't want to go in there while they were both in there. Q And why didn't you leave and go to another bathroom? A Well, I wanted to resolve the problem with her 'cause I thought it would stop. [86] Demeanour. There is nothing about MVT’s demeanour while testifying which detracts from her credibility.

Conclusion on MVT’s credibility [ 87 ] MVT’s tendency to minimize her own contribution to the conflict between her and SH’s factions diminishes her credibility. I find it entirely plausible MVT did go into the girls’ bathroom on December 11, 2018, for the purpose of confronting SH. Crown Witness: SML [ 88 ] SML came to the girls’ bathroom on December 11, 2018, at SH’s bidding. She described SH as a good friend who she met through RCH. SML has known MVT since elementary school, but they have never been friends.

In her direct examination SML explains why she ran out of math class to the girls’ bathroom upon seeing SH’s Snap Chat video: A . . . I was worried for SH. Q Why were you worried for SH? A Just because MVT is known as a mean girl. I don't know. Q What do you mean you don't know? A Like I don't know why I like was so worried. Q Did SH tell you why she wanted you to come to the bathroom? A No. Q And when you say MVT is known as a mean girl, has she ever been mean to you? A Not towards me, but my sister. Q And is that something that your sister has told you or that you have seen yourself?

A I have seen it myself. [ 89 ] In my view, SML’s loyalty to SH has coloured her evidence in SH’s favour. For example, when asked to describe SH’s Snap Chat video (which no longer exists), SML initially stated it showed MVT “saying a bunch of random mean things” to SH. SML went on to say later in her direct examination that she didn’t hear much of what SH had said on the video, but then said: A . . . It was kind of just bickering at each other. . . SH was recording MVT, and MVT was recording her too. And they were just like saying mean things to each other.

Q And so you say they were saying mean things to each other, so did you hear what SH was saying that was mean? A No. I don't think so. [ 90 ] When asked to describe what she observed of MVT and SH in the bathroom, SML said: A MVT said, "I'm just trying to use the bathroom and she's bothering me." Q And she said that to you? A Yeah. Q And did you say anything back? A I said, "Well, it is a public bathroom." Q And then what happened next? A She said, "Yeah, I know, but," and they started arguing again. I wasn't really listening to the argument, so I can't clarify what they both said.

But I know they were saying mean things. Q. And so, what happens after they were saying mean things to each other? A Well, I'm just trying to remember, sorry. Nothing really happened. Like, they were recording each other the whole time. And then, I think MVT said something that like, triggered SH to do that. Q And what do you mean by "to do that”? A. Throw the noodles at MVT. [ 91 ] SH and MVT’s interaction in the bathroom after SML appeared is captured on video (Exhibit 5).

What SML must have heard was MVT accusing SH of saying mean things about the VTs and SH protesting it was her sister who was making those comments. Conclusion on SML’s credibility [ 92 ] I find SML’s perceived duration of time is flawed. SML believes she was in the bathroom for at least five minutes before SH

threw the noodles at MVT, when the video clip shows it was less than 50 seconds. [93] I also find that at times SML viewed SH in a more favourable light than what the facts warranted and MVT in a less favourablelight. I do not believe this was done intentionally to mislead the Court, but rather from a natural inclination to support a good friend.Nevertheless, SML did witness the December 11, 2018 altercation in its entirety and I find her evidence helpful. Crown Witness: PB [94] PB is the Vice Principal of SS. He was acting Principal at the time of the offence as VDK was ill.

At the time, PB had only beenat SS for a little over three months. The ongoing feud between MVT’s faction and SH’s faction was brought to his attention on December10, 2018. Around this time, PB was attempting to supress the phenomenon of “Bro fighting” at SS. He had formulated a strategy tosuppress the feud but had no opportunity to implement it by the morning of December 11, 2018. PB only learned of SH’s issues withMVT about an hour or so before the incident. [95] I found PB a credible and careful witness and I generally accept as accurate his version of events.

Having said that, I believe it isentirely possible that he may not have fully appreciated the scope or nature of SH’s concerns when she came to his office on the morningof December 11, 2018. Defence witnesses SF [96] SF provided the Court with her views on the history of animus between SH, SD, and MVT. She believed MVT was bullying SDvia social media and voiced her concerns to PB on December 10, 2018. SF is RLS’ girlfriend who MVT describes as SH’s sister-in-law.MVT says SF bullied her since Grade 8. SF intervened in MVT and SD’s cyber-sniping to chastise MVT about picking on SD, who wastwo years younger.

MVT accuses SF of fomenting conflict between MVT’s faction and SH’s faction. [97] SF’s evidence is largely related to MVT’s conflict with SD over social media in December 2017 and again in December 2018.The Crown objected to the admission of SF’s evidence absent a successful Scopelliti application on the basis it was character evidence ofthe victim and irrelevant to the question of whether SH had committed the offences charged. In R. v.

Scopelliti, (ONCA), Martin, J.A. for the Ontario Court of Appeal, held that where self-defence is raised, evidence of both previous assaults by acomplainant on the accused and previous acts of violence by that complainant towards third parties (that are known to the accused) areadmissible to show the accused’s reasonable apprehension of violence from the complainant.

Also, where self-defence is raised, evidenceof the complainant’s disposition for violence is admissible to show the probability of the complainant having been the aggressor and tosupport the accused’s evidence that the accused was attacked by the complainant. Given there was no allegation MVT had any physicalaltercation with either SH or SD in the past, I heard SF’s evidence in a voir dire to first assess its admissibility. [98] SH became aware of the Facebook messages (Exhibit 4) around the time they were posted.

SH had not seen the Instagram screenshots which became Exhibit 8, although SD told her in June 2018 that MVT had messaged her about JYVT. I had expressed my concernthat Exhibit 8 was not a complete record of the Instagram conversation between SD and MVT in December 2017, as SD had deletedmessages MVT had not specifically preserved in screen shots. At the conclusion of the trial I admitted SF’s evidence and Exhibit 8 intothe trial proper to contextualize the history of animus between MVT’s faction and SH’s faction. Defence witness, SH [99] Plausibility of the evidence.

SH was the last witness to testify in the trial. She claims to have no memory of throwing thenoodles at MVT as she had “blacked out.” For reasons I will explain later, I do not accept SH was not acting under her own volitionwhen she threw the noodles at MVT. [100] Independent supporting or conflicting evidence. SH says that on the morning of December 11, 2018, she went to speak to PBimmediately upon receiving the Snap Chat message from DMN to complain about MVT because: (

a) MVT was older and SH was afraidMVT and her friends were going to try and fight her; (

b) SH “didn’t like the drama”; (

c) MVT and her friends were making fun of her“for nothing”; (

d) MVT was messaging her sister; (

e) SH wanted nothing more to do with MVT; (

f) SH didn’t want any trouble; and (g)SH wanted to solve the problem. SH became angry and left PB’s office because she felt he was shutting her out and siding with MVT.SH denies mentioning anything to PB about wanting to fight MVT. [101] PB testified that when SH came to see him that morning she was quite agitated and angry, expressing she wanted to “kick[MVT’s] ass.” PB described SH as appearing threatened by MVT. He said he kept going over strategies and different ways for SH todeal with the situation besides fighting. He emphasized what happens when students get caught fighting.

At some point SH got angry andleft his office. He asked her to come back and she ignored him. PB followed her into the hall and told SH if she didn’t return to his office,he was going to have to send her home. [102] SH and PB agree that after she spoke with her MCFD Counsellor, JVE, SH calmed down. She had “regulated” herself to the pointshe could return to class, although she didn’t want to and didn’t do so. [103] It makes little sense to me that SH would drop by the Vice-Principal’s office to simply to notify him she intended to fight MVTwhen to do so would result in her suspension.

I do note, however, that at times SH had difficulty expressing her thoughts. I accept thatSH did go to PB to complain about MVT’s faction making fun of her. I also accept given his recent placement in SS and lack offamiliarity with the feuding students, PB may have not fully grasped SH’s intention or concerns. [104] When asked in direct examination what her conversation with PB was about, SH responded: I showed him my screen shot of what [DMN] said and then I told him, that I don’t want anything to do with her and stuff like that and Iwanted to solve the problem.

[105] PB agrees SH said she wanted nothing more to do with MVT, but denies seeing or asking to see SH’s phone. I do not need todetermine whose version is right on that point. I accept SH believed MVT was behind the offensive chatter. [106] SH’s evidence she was scared of MVT when she encountered her in the bathroom is supported by the fact she sent a text to SMLasking her to come to the girls’ bathroom and to hurry. [107] External consistency. There was no evidence before me that SH had made any out-of-court statement about the incident exceptthat captured on Exhibit 5.

SH’s claim she was afraid of MVT and her friends and wanted to resolve the problem is contradicted by herbehaviour in the washroom shortly after SH met with PB. When MVT first walked into the bathroom, SH laughed and when MVT askedher what was so funny, SH said “your ugly face.” SH testified she could not remember why she said that. [108] Internal consistency. SH’s evidence as to who DMN says was making fun of her was inconsistent. She agreed that on December11, 2018, DMN had sent her only one message.

When she initially described the message in direct evidence SH testified: Someone sent me a snap saying a whole bunch of girls were talking about me and laughing at me, like calling me names [109] When asked in direct examination who had sent her the Snap Chat message SH replied: My friend DMN sent me a snap and it said, I think it was like MVT and all her friends are talking about you and laughing at you sayingyou are scared hiding behind the door [110] SH’s described DMN’s snap in cross-examination as follows: He was like I can’t remember what he first said, but he was like, [SH] a bunch of girls sitting beside me or whatever.

He was like [SH] there is a bunch of girls talking about you sitting beside [me], laughing at you, saying you’re scared, hiding behind thegym door. [111] When asked if DMN sent her any follow up message to clarify who he was talking about, SH responded: I seen who he was sitting by and . . I saw who he was sitting by and he was like, GV and all her friends are talking about you, laughingabout you saying you are hiding behind the gym door. Or something like that. [112] When asked whom DMN was sitting with at the time, SH replied, “I don’t know - I couldn’t really see.

I don’t remember.” [113] Another inconsistency in SH’s evidence is her evidence about who she was texting when MVT first walked into the bathroom. Indirect examination, when asked whom she was talking to on her phone when she went into the bathroom, SH said she did not remember.In cross-examination, when confronted with MVT’s allegation she was laughing at her, SH said, “I wasn’t laughing at her, I just laughed… at my phone . . . [at] something my sister said.” [114] The balance of SH’s evidence.

In light of the ongoing feud between MVT’s faction and SH’s faction, I did not find SHdemonstrated any exceptional animus against MVT. [115] Motive to fabricate. A witness’ motive to give evidence is a relevant factor in assessing his or her credibility. This raises specialconcerns where the witness is an accused because his or her entitlement to the presumption of innocence. In R. v.

Laboucan, 2010 SCC12 , Justice Charron for the Court stated: [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. Theconcern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accusedhas a greater interest in securing an acquittal.

Therefore, any assumption that an accused will lie to secure his or her acquittal flies in theface of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome . . . [116] SH did demonstrate a willingness to be fair to MVT when she conceded that the cyber-posts in Exhibit 4 indicate that it wasactually SD bullying MVT. [117] SH was also forthright when asked why she didn’t leave the bathroom, she said, “I would have been called out on it.” When askedin direct-examination what that meant to her, SH testified: Q What does the phrase calling someone out mean to you?

A Just calling her out. Q What would mean “calling somebody out” what were you trying to get them to do? A I don’t know. Q If someone was called out would they be expected to do something in response? A I guess. Q What was expectation, how would they be expected to respond? A Mmmm, I don’t know.

In cross-examination, SH testified as follows: Q How come you didn’t leave the bathroom at that time? A I would have been called out on it. Q What do you mean by that? A I don’t know. A People would have bullied me more about it. Q So you stayed in the bathroom with MVT who you are afraid of out of fear of retaliation that other people will bully you more? A Yeah. [118] I gather SH was referencing DMN’s message that a group of girls were laughing at her, saying she was scared and hiding. If sheleft the bathroom SH would have been accused of being cowardly. [119] Demeanour.

There was nothing about SH’s demeanour while testifying that detracted from her credibility. I do note, however,that SH’s difficulty with self-expression may have attenuated her evidence. She quickly retreated to, “I don’t remember” or “I don’tknow.” I was left with the impression SH had much more to say but gave up trying to articulate it. Conclusion on SH’s credibility [120] Despite her inconsistencies and difficulties in self-expression, I accept that SH was upset at MVT’s faction or she would not havegone to SS administrators for assistance. I also accept SH was afraid of MVT.

Issue #1: Did SH intended to throw the noodles at MVT? [121] The law presumes that all persons, including SH, act voluntarily. The law also says that an accused is able, upon a properevidentiary foundation, to negative the presumed voluntariness of her actions on a balance of probabilities. The Court does not punishconduct that is involuntary: R. v. Stone, .

In circumstances where an accused did not have voluntary control overconduct that would otherwise be an offence, the defence of automatism may be available. [122] Automatism is an impaired consciousness in which an individual, though capable of action, has no voluntary control over thataction: Stone, para. 156.

The law recognizes two forms of automatism: mental disorder automatism and non-mental disorder automatism.If accepted, a defence of mental disorder automatism will not result in an acquittal, but rather in a verdict of not criminally responsibleand the offender is detained and diverted to a provincial Review Board established pursuant to s. 672.38 of the Criminal Code. If theCourt accepts the defence of non-mental disorder autonomism the accused is entitled to a complete and unqualified acquittal because thelaw does not condone the punishment of the morally innocent.

The absence of volition in respect of the criminal act will always be adefence to the crime: Stone, para. 157, and R. v. Alexander, 2015 BCCA 484, at para. 29. [123] In this case Defence Counsel has not clearly articulated which type of automatism is in play. If the defence establishes mentaldisorder automatism (i.e. a disease of the mind) then the accused will be found not criminally responsible by operation of s. 16 of theCriminal Code which states: No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder that rendered theperson incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. [124]

Section 2 of the Criminal Code defines mental disorder as a disease of the mind. In Cooper (SCC), [1980] 1 SCR1149, p. 8, the Supreme Court of Canada describes what is meant by that term: In

summary, one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition whichimpairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitorymental states such as hysteria or concussion.

In order to support a defence of insanity the disease must, of course, be of such intensity asto render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong. [125] Whether she asserts mental-disorder automatism or non-mental disorder automatism, SH bears the evidentiary burden to prove ona balance of probabilities that she committed these offences involuntarily: Stone, para. 171, 173, and 182.

SH testified she sufferedtrauma in the past and the events which occurred on December 11, 2018, in the girls’ bathroom at SS triggered flashbacks resulting inSH throwing the noodles at MVT while in a disassociated state. After the event SH sent a text message to SML asking her what hadhappened in the bathroom because she had “blacked out.” Although this suggests she has experience with “blacking out” SH providedthe Court with no medical history of specific disassociated events.

Thus, it is not clear whether the defence is that SH suffers from arecurring disorder which would fall under the rubric of mental disorder automatism, or a single incident of automatism triggered by aspecific event which was unlikely to recur. [126] In Stone, the Supreme Court set out a two-step process for assessing a claim of automatism. First, the trial judge must determinewhether the accused has established a proper evidentiary foundation for a defence of automatism.

Second, the trial judge must determinewhich form of automatism applies: Stone at paras. 171, 182, and 193. [127] To meet the threshold evidentiary burden, SH must both claim to have acted involuntarily and present expert psychiatric evidencesupporting that claim: Stone at paras. 183-184. The expert evidence need only be “logically probative”; meaning evidence, if accepted,would tend to support the defence of automatism: R. v. Fontaine, 2004 SCC 27 at para. 89.

Stone also directs the trial judge to considerthe evidence of other witnesses which may corroborate or contradict the plausibility of an accused claims of involuntariness.

[128] In Stone, judicial response of a defence of automatism engages two principle policy considerations: (

a) firstly, the potential thatthe accused could have been feigning automatism; and (

b) secondly, the risk of harm to the administration of justice if people whocommit a violent crime are acquitted on the basis of automatism: Stone at paras. 176, 220; Fontaine at para. 89. The specific evidencetrial judges must consider include: a. The severity of the triggering event; b. Whether there was corroborating evidence of bystanders; c. Whether the accused has a documented medical history of dissociative states; d. Whether the accused had a motive for the crime; and, e.

Whether the alleged trigger of the automatism was also the victim of the violence. [129] SH has presented no expert evidence to support her claim of autonomism, whether it be mental disorder or non-mental disorderautomatism. Assessing the evidence before me in the Stone framework, I have considered the following: a. Severity of the triggering event: The triggering event was SH being aggressively confronted in the bathroom by MVT, anolder girl she feared; b.

Corroborating evidence: There is corroborating evidence that SH feared MVT from PB who testified SH came to his officethe morning of the offence complaining that MVT was threatening her; c. History of dissociated states: The defence adduced no documented evidence of SH having a medical history of automatistic-like dissociated states; d. Motive: There is evidence to suggest SH’s act of throwing the noodles at MVT was motivated by animus. There was anongoing feud between SH’s faction and MVT’s faction. SH was aware of SD and MVT’s antagonistic relationship and complained to PBabout MVT.

SH did not want to be “called out” by MVT’s faction and therefore motivated to act in the way she did in order to stand herground; and e. Victim as trigger: SH declined to testify as to the nature of her trauma, but there is no indication that MVT was its cause.Historically, SH and MVT had very little interaction.

They had never fought and although MVT and SD had swapped unpleasantries onsocial media, there is little evidence of SH and MVT having done so. [130] The lay evidence does not suggest that at the time of the offence SH was responding in a manner which was totally out ofcharacter or in a manner that was unresponsive, disoriented, or confused. [131] In conclusion on this point, I find SH has not provided the requisite evidentiary foundation to establish the defence of automatism.Without expert evidence, I cannot conclude SH’s consciousness at the time of the incident was sufficient for her body to act as anautomaton and throw the noodles, but not sufficient for her to control that act.

SH’s professed lack of memory of the incident, in theabsence of expert evidence indicating otherwise, does not rebut the presumption of voluntariness. SH’s testimony she “blacked out”amounts to nothing more than a mere assertion of involuntariness, which is insufficient to put the defence of automatism into play:(Stone, at para. 183 - 192; R. v. Alexander, 2015 BCCA 484 at para. 62.) The Court needs expert opinion evidence of some exceptionalneurological or psychological event that rendered SH’s behaviour legally involuntary.

Issue # 2: Were the noodles a weapon? [132] The Defence disputes the noodles were a weapon.

Section 2 of the Criminal Code defines “weapon” to include “anything used,designed to be used or intended for use in causing death or injury to any person. In R. v. McLeod, the Yukon Court ofAppeal explained the "focus of the definition has been shifted from the character of the instrumentality in question to the result of its useor the purpose for which it was used." In other words, any object can be a weapon if a person uses it to kill, injure, attack, threaten, orintimidate someone else. [133] In R. v.

Lamy, 2002 SCC 25 , the Supreme Court clarified the meaning of the word “weapon” and the term “injury”contained in the Criminal Code in the context of a case where the female victim suffered a physical injury in the course of a sexualassault. The Supreme Court held an object constitutes a “weapon” where it contributed to the harm caused to the victim. The object doesnot have to be designed or intended to injure in order to qualify as a weapon.

Justice Arbour stated “… the accused must have knowinglyor recklessly used the object without the consent of the victim in circumstances where injury was reasonably foreseeable. …” (para. 16).The word “injury” in the Criminal Code definition of “weapon” is not synonymous with the words “bodily harm.” If an object is used ininflicting injury, be it physical or psychological, in the commission of an assault, it is not necessary that the injury amount to bodily harmto trigger the application of s. 267(1)(a).

Moreover, the accused’s subjective intention is irrelevant vis-à-vis the charge of assault with aweapon. [134] The courts have often found that containers of food or beverages constituted weapons for the purpose of s. 2 of the Criminal Codebased on the manner in which they were used or the accused’s intention in using the container. In R. v. Vandergraaf, (MBCA) the accused threw a small bottle of Kraft Peanut Butter toward the ice at a Winnipeg Jets game. In R. v. Brennan, (NL PC), the accused threw a can of Pineapple Crush, which the court accepted could be a weapon.

There are numerous caseswhere the offender threw a beer bottle: see R. v. Richards, (NS CA), R. v. Turpin, 2005 ABCA 180 , R. v.Roth, 2019 ONSC 3550 . [135] In R. v. West, 2013 ONCJ 315, Justice J. De Filippis convicted an accused of two counts assault with a weapon when hedeliberately splashed hot water on his wife and infant son. The hot water hit the complainants left forearm and chest. Her arm became red

and raw but not blistered. Her chest was not injured as she was wearing a blouse. [136] In R. v. Carter, 2014 SKPC 150 , the offender, Ms. Carter, asked her corrections officer for some hot water for tea. Theofficer poured the water from the tea kettle into a coffee cup and handed it to Ms. Carter who then threw the hot water at the officer. Thewater had been boiling but had cooled somewhat by the time Ms. Carter threw the contents of the cup.

The officer missed two days ofwork and said that she experienced discomfort for some days including blurred vision and the skin stayed red and puffy for up to two andone half weeks. [137] At trial Ms. Carter disputed the cup of hot water met the definition of a weapon and her intention to use the cup or hot water as aweapon. Judge S.P. Whelan of the Saskatchewan Provincial Court found Ms. Carter guilty of assault with a weapon upon concluding thehot water was thrown at the victim and that it was reasonably foreseeable that the water was hot. [138] In R. v.

Storoschuk, 2014 ABPC 299 , after canvassing the authorities on the meaning of “weapon,” Judge W. J.Cummings had to consider whether a cup of urine and vomit thrown by the accused in the commission of two assaults constituted aweapon as that term is defined in the Criminal Code to allow for a conviction of assault with a weapon. Judge Cummings concluded acup of urine and vomit used by the accused in committing these assaults constituted a weapon as that term is defined in

section 2 of theCriminal Code. [139] In conclusion the authorities indicate any object can constitute a "weapon" if a person uses it to kill, injure, attack, threaten, orintimidate someone else. I conclude the hot contents of a cup of noodles could constitute a weapon if it was intentionally or recklesslythrown in the direction of another person. Issue # 3: Was SH acting in self-defence when throwing the noodles at MVT? [140] “Self-defence renders

an act that would otherwise be criminal, not culpable”: R. v. Khill, 2020 ONCA 151 , para. 38.Section 34 of the Criminal Code, R.S.C., 1985, c. C-46, codifies the law of self-defence in Canada. This

section came into force onMarch 11, 2013, with the enactment of the Citizen’s Arrest and Self-Defence Act, S.C. 2012, c. 9. The former ss. 34 to 42 of the CriminalCode were replaced with new self-defence provisions found in ss. 34-35.

Section 34, upon which the accused relies, states: 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 offorce; (

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 andthe 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. [141] Section 34(1) consists of three elements, which the Ontario Court of Appeal in Khill describe as the trigger, the motive, and theresponse: a. The trigger: Section 34(1)(

a) holds the accused must believe, on reasonable grounds, that force is being used or threatenedagainst her; b. The motive: Section 34(1)(

b) holds the act of the accused said to constitute the offence must be done for the purpose ofdefending herself; and c. The response: Section 34(1)(

c) holds the act said to constitute the offence must be reasonable in the circumstances: s. 34(1)(c). [142] An accused can only be convicted if the Court is convinced beyond a reasonable doubt the answer to at least one of the threequestions posed above is “no”: Khill, para. 65.

[ 143 ] In order to trigger s. 34(1)(a), the Court must find the accused had a subjective belief that force is being used or threatened against them. The belief must be based on “reasonable grounds.” This limitation imports an objective assessment of the accused’s belief. Doherty, J.A. in Khill states at para. 46 : [46] The requirement in s. 34(1)(

a) that the belief be based on “reasonable grounds” imports an objective assessment of the accused’s belief. Reasonableness is ultimately a matter of judgment. A reasonableness assessment allows the trier of fact to reflect community values and normative expectations in the assignment of criminal responsibility. To brand a belief as unreasonable in the context of a self- defence claim is to declare the accused’s act criminally blameworthy . . . [ 144 ] The phase “on reasonable grounds” in s. 34(1)(

a) involves a contextualized reasonableness inquiry by referencing the accused’s personal characteristics and experiences to the extent that those characteristics and experiences were relevant to the accused’s belief or actions: Khill , para. 48 . The Court must consider the accused’s prior violent encounters with the complainant or her knowledge of the complainant’s propensity for violence must be taken into account in the reasonableness inquiry.

Thus, to the extent that SH’s personal characteristics and experiences informed her belief that MVT posed an immediate threat to her personal safety, those characteristics and experiences have to be taken into account in assessing the reasonableness of her belief, unless excluded from that assessment by policy- based considerations. [ 145 ] Section 34(1)(

b) speaks to the accused’s motive for acting as she did. Khill holds that this inquiry is subjective. Doherty J.A. states: [54] . . . Absent a defensive or protective purpose, the rationale for the defence disappears.

Vengeance, even if righteous, is blameworthy and cannot be camouflaged as self-defence. [ 146 ] The third element of self-defence is found in s. 34(1)(c): the accused’s response to the perceived or actual use of force or the threat of force must be “reasonable in the circumstances.” In assessing reasonableness, s. 34(2) directs the Court to consider “the relevant circumstances of the person, the other parties and the act.” Khill states at para. 57 the reasonableness inquiry in s. 34(1)(c), like s. 34(1) (a), blends objective and subjective considerations.

Doherty, J.A. explains: [58] The “relevant circumstances of the accused” in s. 34(2) can include mistaken beliefs held by the accused. If the court has determined, under s. 34(1)(a), the accused believed wrongly, but on reasonable grounds, force was being used or threatened against him, that finding is relevant to, and often an important consideration in, the court’s assessment under s. 34(1)(

c) of the reasonableness of “the act in the circumstances.” Is s. 34 of the Criminal Code triggered? [ 147 ] The first question I must ask is whether SH believed, on reasonable grounds, that MVT was about to use force against her. [ 148 ] In R. v. Billing , 2019 BCCA 237 , a case of aggravated assault, the BC Court of Appeal held (at para. 9) that s. 34(1)(

a) reflects a fundamental tenet of criminal law that a person may take defensive action as a pre-emptive measure to prevent an assault if the person believes on reasonable grounds they are about to be assaulted. A person is not required to stand by and wait to be assaulted before taking action. In this case, the defence characterizes SH’s act as a “pre-emptive strike” to ward off an inevitable attack. Citing R. v.

Pappas , 2013 SCC 56 , the Crown argues there is no “air of reality” to SH’s claim she acted in self-defence. [ 149 ] SH’s perception MVT posed a threat to her safety was shaped by the following events and history: a. There was a culture of bullying among a number of the female students at SS; b. MVT’s faction was antagonistic to SH’s faction; c. MVT was older than SH; d. In the past MVT had engaged in a physical fight with another student (TM); e. MVT had recently threatened to fight SD, SH’s younger sister; f.

SH had witnessed MVT being physically aggressive to SD in the past (i.e. bumping her in the hallway); g. MVT enjoyed greater access to and protection from SS administrators because MVT’s parents were teachers and JVT worked at the school; h. SH received DMN’s message the morning of December 11, 2018, warning SH that MVT’s faction were laughing at her, saying she was scared, hiding behind the gym door; i. SH believed MVT or her group wanted to “call her out” to fight; j. SH believed MVT had deliberately followed her into the girl’s bathroom the morning of December 11, 2018, in order to challenge or fight her; k.

Immediately upon entering the bathroom, MVT was confrontational and aggressive toward SH, demanding she leave the bathroom; l. When MVT initially confronted SH in the bathroom, they were alone; m. SH was afraid of MVT;

n. MVT had a cell phone and the ability to promptly summon other members of her faction to join the fray; and o. MVT initiated her and SH’s reciprocal video-recording of the other, which SH found intimidating. [150] On December 11, 2018, SH was 14 years old, albeit soon to be 15. As the Crown has emphasized, by the time she threw thenoodles, SH was no longer alone in the bathroom with MVT. SH’s older ally, SML, had come to her side. When SML arrived in thebathroom, SH’s verbal altercation with MVT was already heated and SML’s intervention did little to defuse the escalating tension.

I findSH had far less verbal agility than MVT and likely disadvantaged in a “war of words.” I am not satisfied beyond a reasonable doubt that areasonable 14 year old girl with SH’s characteristics and experiences would not perceive MVT’s appearance and conduct in the bathroomas threatening. Put in the affirmative, I accept SH did perceive MVT as a threat and that her perception was not unreasonable. Was SH motivated to act to defend herself? [151] As I find that s. 34(1)(

a) was triggered in the circumstances of this offence, I must then consider under s. 34(1)(

b) what motivatedSH to throw the noodles at MVT. If SH did not act for a defensive or protective purpose she cannot rely on self-defence. There is nosuggestion SH was acting to defend or protect anyone but herself. [152] SH does not offer any rationale for throwing the noodles. She doesn’t say what she believed would happen if she did not throw thenoodles. Rather, she claims she “blacked out” and has no memory of committing this act.

She does not know what she was thinking orhow she was feeling or why she threw the noodles. [153] As the accused’s motive engages a purely subjective analysis, the absence of evidence on this element of self-defence makes itdifficult for the Court to find SH threw the noodles to defend herself from MVT’s aggression. There is no external evidence from which Icould infer SH acted to defend herself. She claims she was afraid of MVT, but did not say what it is she thought MVT might do in themoment. Rather, SH seemed concerned she may be bullied by MVT’s faction at some later time if she did not stand her ground.

I gleanfrom the video-recording (Exhibit 5), that SH was becoming increasingly frustrated and angry at MVT’s harangue. [154] Considering the evidence as a whole, I do not find SH threw the noodles for the purpose of defending herself as required in s.34(1)(b). I believe she threw the noodles as an offensive not a defensive strike. Was SH’s response reasonable? [155] If I am wrong as to motive, and SH did throw the noodles in response to what she perceived as MVT’s threat of physical force, Iwill consider the reasonableness of SH’s response in reference to s. 34(2). A

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