R. v. Hopley Date:, 2011 BCPC 239

Citation: R. v. Hopley Date: 20110616 2011 BCPC 0239 File No: 29096-1 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RANDALL PETER HOPLEY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE WEBB Crown Counsel: S. Patola Defence Counsel: W. Thorne Place of Hearing: Sparwood, B.C. Date of Judgment: June 16, 2011 [ 1 ] THE COURT: Mr. Hopley is charged with assaulting Michelle McCann on April 20th, 2011, in Sparwood. [ 2 ] It is clear that the parties were together in and about the library on that occasion.

The two of them agree that the nature of their relationship was simply as acquaintances or friends. Beyond that, not much is agreed. [ 3 ] Ms. McCann's version of events is that after some verbal sparring in the library they met again outside and Mr. Hopley struck her three times in the left side of the head, in the cheek near her ear, and once behind the ear. She was knocked to the ground. Her body was “twisted”. After recovering somewhat, she phoned the police who then attended. [ 4 ] Corroboration for Ms.

McCann's version of events comes from, to some degree, Joanne Wilton, the librarian at the Sparwood library. She describes a lady, who I accept was Ms. McCann, as being very upset and outside screaming and on the phone, pointing at “that person in the car”, who she identified as Mr. Hopley. She says that the side of the woman’s face was red and, as a result of the

redness on the side of her face, she took her in the library and put an icepack on the side of her face, then waited for the police to attend. She admits that she did not see what had occurred, but she did see the aftermath including the injuries to the side of her face which are consistent with the type of blows that Ms. McCann says were struck by Mr. Hopley. [ 5 ] The other corroborating witness is Corporal Sliworsky, the RCMP member who attended. In essence, his evidence is that Ms. McCann was distraught and crying when he arrived. He did not observe any injuries.

However, I am mindful of the fact that at that stage she had been treated with ice for a period of time. [ 6 ] Mr. Hopley testified. He acknowledges some verbal conflict, but says nothing physical happened. He does not offer an explanation for why the injuries may have been present or, as the Crown says, why the complainant appeared to be as distraught and upset as she was when the police attended.

He says they argued over a commercial engagement or relationship dealing with a vehicle, but says that nothing physical happened. [ 7 ] In considering this case, I am mindful of the Supreme Court of Canada's decision in R. v. W.(D.) which requires me to first consider the evidence of Mr. Hopley.

If I accept his evidence, then I must acquit. [ 8 ] Secondly, if I do not accept his evidence, but if it raises a reasonable doubt, then I must acquit him. [ 9 ] If I do not accept his evidence, nor does it raise a reasonable doubt, I am required then to consider the Crown's case on its own to see whether it supports a conviction beyond a reasonable doubt. [ 10 ] I do not accept his evidence, nor does it raise a reasonable doubt. It offers no explanation for the level of upset of Ms. McCann, nor does it offer any explanation as to why the injuries (that were observed by the librarian) were present.

His version of events, that this was only an argument, is inconsistent with the evidence of the independent witnesses, in particular Ms. Wilton who sees the -- both the emotional upset and the injuries to her face, and the evidence of Corporal Sliworsky who sees the upset, but does not see any injuries. [ 11 ] In considering the Crown's case, I am mindful of the frailties of Ms. Wilton as she acknowledged. She has some mental health issues, and I keep that in mind in considering her version of events. [ 12 ] There were three things in her evidence that assisted me to a large degree.

First, she says in discussing the icepack, she says she got an icepack, and she says it was a male librarian who got her the icepack. I accept that she is wrong and that it was Ms. Wilton. That, in my view, is consistent only with somebody who was upset after being assaulted and doesn't recall the details of what happened after. She recalls getting an icepack, but isn't sure who brought it to her. That, in my view, is consistent with what I would expect given what had occurred moments before. [ 13 ] Secondly, the librarian's evidence was that when she went outside that Ms.

McCann was standing up and was not on the ground. Ms. McCann in her evidence says that she was on the ground when the librarian came out. In cross-examination she says that she wasn't certain that she was on the ground when the librarian came out. She really believes she was, but she wasn't certain on that. That, in my view, is also consistent with somebody who was badly shaken up as a result of what had occurred and is doing her best to get things correct. Although she believes she was on the ground, she is not prepared to say under oath that she was when the librarian came out.

That is because she was upset about what had occurred between her and Mr. Hopley. [ 14 ] The third thing is the evidence with respect to kicking. It would be simple for Ms. McCann to say that Mr. Hopley did kick her when she was on the ground. No one else was there to witness what had occurred. In cross-examination, it became clear that she told the police that that was the case, but in giving her evidence under oath, she backed up to some degree saying she attributed the kick to pain that she suffered in her leg, but she wasn't prepared to say under oath that he kicked her, because she didn't have a bruise.

In my view, she was being very cautious not to overstate things and to recall things as best she could. [ 15 ] I am satisfied that she recalls the incident of the assault correctly, and that the three punches to the head were inflicted by Mr. Hopley as she described. That obviously amounts to an assault. I find Mr. Hopley guilty of the assault on Ms. McCann. (REASONS CONCLUDED