R. v. Bellis, 2021 BCPC 290

Citation: R. v. Bellis 2021 BCPC 290 Date: 20211105 File No: 30097-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUSTIN KONRAD BELLIS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: K. Schille Counsel for the Defendant: G. Grewal Place of Hearing: Prince Rupert , B.C.

Date of Hearing: September 7-8, October 8, 2021 Date of Judgment: November 5, 2021 [ 1 ] Justin Konrad Bellis, a 43-year-old Haida man, is charged with two counts in Prince Rupert Court Information 30097-1: Count 1 Justin Konrad BELLIS, on or about the 25th day of November, 2018, at or near Prince Rupert, in the Province of British Columbia, did commit assault of Gerald Wilson, contrary to

Section 266 of the Criminal Code .

Count 2 Justin Konrad BELLIS, on or about the 25th day of November, 2018, at or near Prince Rupert, in the Province of British Columbia, did commit forcible entry on the real property of Gerald Wilson, contrary to Section 72(1) of the Criminal Code . [ 2 ] On September 7, 2021, given that approximately 33-and-a-half months had gone by since the offence date of November 25, 2018, Mr. Bellis made what is commonly called a Jordan application. Mr. Bellis alleged that his right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Canadian Charter of Rights and Freedoms (the “ Charter ”) had been violated. He sought the remedy of a judicial stay of proceedings pursuant to s. 24(1) of the Charter . [ 3 ] On September 8, 2021, at the conclusion of a two-day voir dire , I dismissed Mr. Bellis’ application for a judicial stay of proceedings. [ 4 ] By agreement of counsel, the evidence given on September 7, 2021, by Constable Phillips during the course of the voir dire was admitted into the trial proper.

The BC Prosecution Service called an additional four witnesses during the trial on September 8 and October 8, 2021: Gerald Wilson, Garrett Brown, Constable Lazoviks, and Richard Morneau. Mr. Bellis was the sole witness called by the defence. [ 5 ] Four exhibits were tendered during the course of the trial: Exhibit 1: Twelve photographs of injuries suffered by Mr. Wilson on November 25, 2018. Exhibit 2: DVD recording of the November 26, 2018, interview of Mr. Brown by Constable Lazoviks. Exhibit 3: Transcript of the DVD recording of the November 26, 2018, interview of Mr. Brown by Constable Lazoviks.

Exhibit 4: Prince Rupert Regional Hospital Records for Mr. Bellis from his two hospital visits on November 26, 2018. WITNESS EVIDENCE AT TRIAL Constable Phillips [ 6 ] At 20:29 hours on November 25, 2018, Prince Rupert RCMP received a telephone call from a Mr. Green regarding a fight involving three or four persons taking place at the Prince Rupert RV Campground & Trailer Park in Prince Rupert, British Columbia.

Constable Phillips was the first police officer to arrive at the trailer park. [ 7 ] Upon his arrival at the trailer park, Constable Phillips immediately encountered a black car departing the trailer park. Constable Phillips stopped the black car and noted the driver to be Ms. Oliveira, who he knew from previous interactions. He also noted two males in the car. Constable Phillips asked the occupants of the car for identification and he subsequently identified Mr. Bellis and Mr. Brown by their identification documents.

Constable Phillips observed that all three occupants of the car appeared to be frantic and that Mr. Bellis was bleeding from the head. As part of the conversation, Ms. Oliveira told Constable Phillips that Mr. Wilson was going to get a gun. Constable Phillips detained all three occupants of the car for purposes of an investigation into the alleged fight at the trailer park. [ 8 ] Constable Phillips knew who Mr. Wilson was and he relayed the information he was told by the car occupants to other police officers. Other police officers soon arrived at the trailer park.

Although not under arrest, all three occupants of the car remained detained by the police. [ 9 ] Because the police had information that Mr. Wilson may be in possession of a firearm, the decision was made by the police to undertake what Constable Phillips called “a high-risk takedown” of Mr. Wilson at the trailer. The police attended to Mr. Wilson's trailer. Police arrested Mr. Wilson without incident for the offence of uttering threats. [ 10 ] In discussing the events of the evening with the occupants of the car and Mr.

Wilson, it was soon obvious to police that the car occupants were telling a very different story of the night’s events from the version of events told by Mr. Wilson. Constable Phillips soon came to the conclusion that Ms. Oliveira and Mr. Bellis had been having a romantic relationship behind Mr. Wilson’s back. Furthermore, Constable Phillips formed the grounds to believe that Mr. Wilson was the actual victim of an unprovoked attack by the occupants of the car. Accordingly, all three occupants of the car were arrested. [ 11 ] Following their arrest by police, Mr. Wilson, Ms. Oliveira, and Mr.

Brown, in one form or another, gave statements to the police. Mr. Bellis did not provide a statement to police. Mr. Wilson [ 12 ] On November 25, 2018, Mr. Wilson was subject to a condition that he have no contact with Ms. Oliveira. Mr. Wilson and Ms. Oliveira had been in a romantic relationship of some type that had ended two to three weeks prior, after Mr. Wilson had been arrested and charged with uttering threats against Ms. Oliveira. Despite the no-contact condition, Ms. Oliveira and Mr. Wilson still kept in contact by text and met in person on at least one occasion. [ 13 ] Mr.

Wilson, at some point during the no-contact period, took possession of Ms. Oliveira's mobile telephone and he kept it. He used Ms. Oliveira’s mobile phone to send text messages to Ms. Oliveira's mother, telling her that Ms. Oliveira was a drug addict and that Ms. Oliveira was selling obscene pictures of herself online. Mr. Wilson also used the mobile phone to send text messages to Mr. Bellis, pretending that he was Ms. Oliveira in order to find out if Ms. Oliveira and Mr. Bellis had been together or not. [ 14 ] Mr. Wilson did not return the mobile telephone to Ms. Oliveira.

Rather, he discarded the mobile telephone on November 25, 2018, before the altercation complained of, by throwing it into some bushes by the trailer park. To quote Mr. Wilson, “I had no -- no

need for it and no use for it anymore, and I just thought it was just going to cause more problems, so I just got rid of it.” [ 15 ] In regard to the altercation complained of, Mr. Wilson testified that it was probably around eight or nine o'clock at night, dark outside, and that because he had had a feeling that he might be attacked, he had the door on his trailer locked. At the time, he was living alone in a 30-foot travel trailer in the trailer park. It was wintertime, so he had been moved down to a spot on the bottom road where there were hardly any trailers.

The nearest trailer to him was probably 10 to 12 lots away, either up or down the hill, with bush around the trailer. [ 16 ] He was lying in bed watching TV and heard a vehicle pull up, followed by a little bit of voices outside. Then, all of a sudden, he heard banging on the trailer, followed by the battery charger that he had hooked up to his car earlier in the day flying through and breaking the kitchen window. He then heard screaming outside. Mr. Wilson was not sure what was happening. A tire then came through the window of the trailer’s locked door, just missing Mr.

Wilson and landing on the couch behind him. [ 17 ] Mr. Wilson unlocked and then opened his metal door with the broken window and the screen door, to see what the commotion was. Both doors open out of the trailer and he latched them open onto the outside of the trailer. Mr. Wilson looked outside and saw Mr. Bellis standing by the bottom of the stairs to the trailer. He heard voices because Mr. Bellis was talking with someone else. [ 18 ] At the time, Mr. Wilson did not know who Mr. Bellis was. He noticed that Mr.

Bellis had ripped the aluminium handle - which had been attached to the side of the trailer to assist someone in climbing the stairs and entering the trailer door - from the side of the trailer. Mr. Bellis then started hitting the side and steps of the trailer with the aluminium handle, followed by Mr. Bellis swinging the aluminium handle at Mr. Wilson. [ 19 ] Instead of immediately retreating back into the trailer, Mr. Wilson tried to kick Mr. Bellis away. Mr. Wilson then grabbed a blue- handled fishing fillet knife that was by his front door. He waved it in a threatening manner towards Mr.

Bellis, hoping that the knife might dissuade Mr. Bellis. However, Mr. Bellis was still swinging the aluminium handle at Mr. Wilson and stating that he was going to kill Mr. Wilson. Mr. Wilson then threw the knife down on the counter, thinking that he did not want to use it. Apparently, Mr. Wilson had just grabbed the knife as a natural thing to protect himself, but then thought it was not a very good idea. [ 20 ] After about a minute of Mr. Bellis swinging the aluminium handle at Mr. Wilson, another male appeared from beside the trailer, holding a piece of wood in his hand that Mr.

Wilson thought could be one of the pieces of wood he utilizes for making walking sticks from. The man stated that Mr. Wilson “was trying to ruin a family” and, "Come outside and I'll kill you." [ 21 ] As this was all happening, Ms. Oliveira exited the car and approached Mr. Wilson’s trailer, yelling a number of things, including, "Beat him up, kill him," and "Beat him up, get him," and, "Kill him, kill him, hurt him." [ 22 ] As Ms. Oliveira approached the trailer, Mr. Bellis tried to get into the trailer with the aluminium handle still in his hand. Mr. Wilson kicked towards Mr. Bellis, so that Mr.

Bellis could not get into the trailer. Eventually, after a minute or two, Mr. Bellis managed to get into the trailer, followed by the second male. [ 23 ] The altercation continued inside the trailer with both Mr. Bellis and the second male punching Mr. Wilson in the head. At some point, Mr. Wilson was able to grab hold of an antler that was on a bench beside the trailer door. Mr. Wilson pushed the antler towards Mr.

Bellis’ stomach, even though both men had a hold of him, were swinging punches at him, and saying that they were “gonna kill” him. [ 24 ] At some point in the altercation inside the trailer, and because both of his attackers were inside the trailer, Mr. Wilson determined that he did not stand much of a chance of defending himself so he decided to get out of the trailer. As he got out of the trailer, he fell down. Mr. Bellis, who had a steel bar in his hand, chased after Mr. Wilson and so Mr. Wilson ran away. While being chased, Mr. Wilson could hear Mr. Bellis yelling that he was “gonna kill” him. Mr.

Bellis was also hitting Mr. Wilson in the head, knee, and right shoulder, as Mr. Wilson tried to get away. [ 25 ] Mr. Wilson ran towards the trailers that were by the hill that is the main entrance to the campgrounds, a distance of approximately 200 feet. Mr. Wilson fell to the ground a couple of times while trying to escape, as Mr. Bellis was continually hitting him in the head. Mr. Wilson kept telling Mr. Bellis to “just leave me alone. What's -- what's happening?" And to “fuck off.” At some point, as he got close to another trailer, Mr. Wilson yelled out, "Call the police. Call the police." [ 26 ] As Mr.

Wilson got to the wooden deck of a fifth-wheel, someone exited the fifth-wheel. At that point, Mr. Bellis stopped and ran back towards the car he had arrived in, apparently so he could leave the trailer park in the car. Mr. Wilson did not see the second male. [ 27 ] Mr. Wilson returned to his trailer to discover that it had been ransacked, including his bedroom. Furthermore, a bunch of jewellery, including necklaces that had been hanging beside the trailer’s front door as a display, were gone. Mr. Wilson is of the opinion that while he was being chased by Mr.

Bellis, the second male was in the trailer stealing Mr. Wilson’s jewellery and ransacking the place. [ 28 ] A couple of minutes after getting back to his trailer, there was a knock on the trailer door. It was the police saying to come out of the trailer with his hands up. Mr. Wilson told the police that he was the victim, was hurt and bleeding from the head. The police said, "Come out with your hands up." As Mr. Wilson exited the trailer, he saw five or six police officers with their firearms aimed at him. Police moved in, put Mr.

Wilson under arrest, and placed him into the back of a police vehicle. [ 29 ] Police told Mr. Wilson that there was a gun involved. Mr. Wilson said, "No, there's no gun involved. There's nothing." Police told Mr. Wilson that they had been told there was a gun involved, to which he replied, "Well, they will say anything to get away to -- you know, at this point, they'll say anything." [ 30 ] Mr. Wilson was taken by ambulance to the Prince Rupert Regional Hospital, where he received stitches to the head to close lacerations he suffered during the altercation with Mr. Bellis.

[ 31 ] The photographs in Exhibit 1 record injuries suffered by Mr. Wilson as a result of the altercation with Mr. Bellis and Mr. Brown. [ 32 ] Subsequent to being taken to the hospital and being released from police custody, Mr. Wilson walked up to the hill in the trailer park to where Ms. Oliveira’s motor vehicle was still parked. He looked inside the car. He could see some of his jewellery sitting on the back seat of the car, some necklaces and other items. Mr. Wilson told the police about his jewellery being inside Ms. Oliveira’s car.

The next day, a police officer returned some, but not all, of the missing jewellery to him in an envelope. A gold necklace and a gold bracelet were not returned to him. [ 33 ] At no time did Mr. Wilson consent to a physical altercation with Mr. Bellis or Mr. Brown. Mr. Wilson had not invited Mr. Bellis, Mr. Brown, or Ms. Oliveira onto his property or into his trailer. Mr. Brown [ 34 ] Although called as a witness by the BC Prosecution Service, Mr. Brown’s evidence was, for the most part, favourable to the accused. Not surprising, given that Mr. Brown is the brother-in-law of Mr.

Bellis and they are close friends. [ 35 ] In particular, Mr. Brown presented an alternative version of events at the trailer that, for the most part, called into question the evidence of both Mr. Wilson and Mr. Bellis. On the key issues of: 1. Who started the physical altercation between Mr. Bellis and Mr. Wilson; and 2. How Mr. Bellis came to be inside the trailer? Mr. Brown’s evidence directly contradicted the evidence of Mr. Wilson and partially contradicted the evidence of Mr. Bellis. [ 36 ] Given the testimony of Mr.

Brown during direct examination, pursuant to s. 9(2) of the Canada Evidence Act , the prosecutor, Mr. Schille, made what is commonly referred to as a “ Milgaard Application,” seeking the court’s permission to cross-examine Mr. Brown on the recorded statement Mr. Brown gave to Constable Lazoviks in the early morning hours of November 26, 2018, while Mr.

Brown was under arrest related to the events of November 25, 2018. [ 37 ] Section 9(2) of the Canada Evidence Act reads: Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse. [ 38 ] I granted Mr.

Schille’s request for a voir dire to determine if Mr. Brown could be cross-examined, in whole or in part, on his November 26, 2018, 4:30 a.m. in-custody recorded statement to Constable Lazoviks. [ 39 ] At the conclusion of the voir dire , I ruled that Mr. Schille could utilize the November 26, 2018, recorded statement of Mr. Brown to cross-examine Mr. Brown on six issues: 1. Why Ms. Oliveira, Mr. Bellis, and Mr. Brown went to Mr. Wilson’s trailer. 2. Whether Mr. Bellis ripped the aluminium handle off the side of Mr. Wilson’s trailer. 3. The breaking of glass and/or windows at Mr. Wilson’s trailer. 4.

Where the physical altercation between Mr. Wilson and Mr. Bellis began. 5. If Ms. Oliveira was the driver of the car that arrived at Mr. Wilson’s trailer. 6. Ms. Oliveira’s telephone. [ 40 ] Although Mr. Brown agreed with some of the propositions put to him during cross-examination by Mr. Schille, including that his memory would have been better almost three years ago than it was in court on October 8, 2021, Mr. Brown did not wholeheartedly adopt his November 26, 2018, recorded statement. Of note, despite being vigorously cross-examined on the point by Mr. Schille, Mr. Brown maintained that Mr.

Bellis was calm in the car ride to Mr. Wilson’s trailer and that Mr. Bellis was not angry in any way. A very different version of events from what Mr. Brown told Constable Lazoviks in his recorded statement. [ 41 ] Furthermore, Mr. Brown initially maintained that the smashing of windows occurred after Mr. Bellis was attacked by Mr. Wilson, who had come out of the trailer swinging a knife at Mr. Bellis and that the smashing of windows was incidental to the attempt of Mr. Bellis to defend himself from Mr. Wilson’s attack. Later in his evidence under cross-examination, Mr. Brown agreed with Mr. Schille that Mr.

Bellis smashed a few windows, then went to the door of the trailer. [ 42 ] In the result, Mr. Brown’s overall testimony continued to be supportive of Mr. Bellis’ version of events, as opposed to Mr. Wilson’s version of events. In particular, on the two crucial issues of: 1. Who started the physical altercation between Mr. Bellis and Mr. Wilson; and 2. How Mr. Bellis came to be inside the trailer? Mr. Brown’s evidence continued to directly contradict the evidence of Mr. Wilson.

[ 43 ] Mr. Brown’s testimony, put into its best light for the prosecution, is that Mr. Bellis banged on the trailer’s door, followed by Mr. Wilson coming out of his trailer yelling at the top of his lungs and brandishing a knife at Mr. Bellis, who then fell down to the ground. Trailer windows may have been broken before Mr. Bellis knocked on the trailer door or after Mr. Wilson came out of the trailer brandishing a knife while yelling and screaming at Mr. Bellis. At some point, Mr. Bellis broke the handle off the trailer from near the door and used it to defend himself in the melee with Mr.

Wilson. [ 44 ] At this point, it looked to Mr. Brown that Mr. Wilson was going to stab Mr. Bellis in the back, so Mr. Brown intervened in the melee and all three persons stumbled, while struggling over the knife, through the trailer’s door and into the trailer, where Mr. Wilson stabbed Mr. Bellis with the antler. Contrary to what Mr. Bellis later testified to, in Mr. Brown’s version of events, Mr. Brown is the hero and saves Mr. Bellis from Mr. Wilson’s knife attack. Mr. Brown grabbed Mr. Wilson near his head, hit him a couple of times, and saved Mr. Bellis, who had been stabbed by Mr.

Wilson with the antler and was bleeding all over the place. Mr. Bellis and Mr. Brown then escaped from the trailer at their earliest opportunity, with Mr. Wilson yelling words to the effect that he was going to get a gun. Constable Lazoviks [ 45 ] Mr. Brown was lodged in Prince Rupert police cells. Constable Lazoviks removed Mr. Brown from police cells a little after 4:00 a.m. on November 26, 2018, and relocated Mr. Brown to a police interview room. Mr.

Brown thereafter provided a recorded statement to Constable Lazoviks. [ 46 ] Constable Lazoviks did not present as having a vivid memory of the events of November 26, 2018, and I simply am unable to accept his testimony that Mr. Brown was sober and not under the influence of alcohol or drugs when the recorded statement was taken from Mr. Brown at 4:30 a.m. Mr. Morneau [ 47 ] Of the witnesses called by the BC Prosecution Service, Mr. Morneau is the only truly independent witness of the events of November 25, 2018.

He began his evidence by acknowledging that the events occurred a long time ago and that his memory “may be” affected by the passage of time. He presented as an honest and forthright witness, but his memory of the events from almost three years ago was hazy, at best. [ 48 ] Mr. Morneau painted a picture of a chaotic scene at the trailer park on the evening of November 25, 2018. Mr. Morneau testified that he knew of Mr. Wilson, but he did not know Mr. Wilson. He was a neighbour of Mr. Wilson’s, situated two lots over. [ 49 ] Mr.

Morneau recalled a knocking noise on a trailer and perhaps the sound of glass breaking, but given that it was dark, it was difficult for him to see. He recalled seeing a couple of guys banging on Mr. Wilson’s trailer and yelling for Mr. Wilson to come out of the trailer. He saw a flower pot fly, but he did not see anything in the hands of the two guys. He also heard a female voice, but he could not see more than two people. [ 50 ] Another tenant told him to call the police, so he went back to his trailer and called the police. By the time he got to his trailer, which was located two trailers over from Mr.

Wilson’s, on top of the hill, two people were chasing Mr. Wilson on a lower level of the trailer park, near the playground area, located near Mike’s campsite. He yelled out that he was on the phone with the cops and that they were coming. He yelled that they should leave Mr. Wilson alone, as there were two people against one. [ 51 ] There was a picnic table which appeared to be a barrier between the two guys and Mr. Wilson. The picnic table got knocked over and the barbeque went for a ride. He heard clanging and banging.

He did not actually see a whole lot because it was so dark outside and everyone was wearing dark clothing. He did not see who started the physical fight. [ 52 ] Mr. Morneau thinks that he saw the two guys around Mr. Wilson, with Mr. Wilson bent over, in what Mr. Morneau called a “hockey position”. He thinks the two people were punching Mr. Wilson at the time. Mr. Morneau stated, “You know how they pull the sweater over in hockey?” Mr. Wilson somehow managed to get away from the two other people and made his way over to Andrew and Amy’s campsite. Mr.

Morneau thinks that he repeated, “The police are on their way” and “to leave him alone”. Mr. Wilson was on the deck of Andrew and Amy’s trailer, and the two guys left. He then saw a car drive by, driven by a woman. He could see a head in the back window, but the female was the only person in the front of the car. [ 53 ] When asked by Mr. Schille how long the incident took, Mr. Morneau replied, “All happened pretty quickly, so I’d say within a 10 to 15-minute range.” [ 54 ] During the altercation that he witnessed, Mr. Morneau heard Mr.

Wilson state, “Leave me alone,” and, “F you,” and, “Get the fuck out of here, asshole”. He did not hear the two guys say anything once they got out of Mr. Wilson’s trailer. [ 55 ] Mr. Morneau did not hear anyone mention a gun. It was too dark for him to identify the two guys. Although it was not raining, the moon was not very bright and so he would not have been able to identify anyone more than 10 feet away from him. The two guys and Mr. Wilson were 40 to 50 feet away from him.

The campground lights had not been updated yet and so there were lots of burned-out lights. [ 56 ] Interestingly, during cross-examination, Mr. Morneau admitted that he was not sure if it was Mr. Wilson’s voice yelling profanities and to leave him alone. Mr. Morneau stated that he “assumes it was him, because it was two against one,” but he agreed with Mr. Grewal that, “Okay, I’m not sure.” On redirect, in answer to a question that Mr. Grewal did not object to, Mr. Morneau stated that he spoke with Mr. Wilson after the incident to see if Mr.

Wilson needed help, and the voice he heard protesting was the same as Mr. Wilson’s. [ 57 ] After the altercation, Mr. Morneau followed Mr. Wilson back to Mr. Wilson’s trailer, in case he needed any medical attention. Mr. Morneau walked around the trailer and the only window that he recalled being smashed from Mr. Wilson’s trailer was the door window. Furthermore, according to Mr. Morneau, “That was about the only thing” he noticed about the trailer, as he had walked around

the trailer the next day while walking his dog. As such, Mr. Morneau’s testimony directly contradicts the evidence of Mr. Wilson inregards to the smashed-out windows. Mr. Bellis [58] Mr. Bellis painted a picture of himself as some sort of Marvel Universe Superhero. [59] According to Mr. Bellis, having had two drinks at the casino and learning of the injustice done to Ms. Oliveira by Mr. Wilson, aman he did not know, and because the police refused to act on Ms. Oliveira’s behalf, Mr. Bellis travelled in Ms. Oliveira’s car with thedistressed Ms. Oliveira and the very intoxicated Mr. Brown, to Mr.

Wilson’s trailer for the purpose of calmly talking with Mr. Wilsonand convincing Mr. Wilson to give Ms. Oliveira her mobile telephone back and not having the indecent photographs of Ms. Oliveiraavailable for viewing on the Internet. Mr. Bellis did not think that “violence would be a thing” if they attended to Mr. Wilson’s trailer. [60] Upon reaching Mr. Wilson’s trailer, it was dark and raining. Mr. Bellis got out of the car and approached the trailer. He did notbreak any of the trailer’s windows. He did not throw the battery charger through the trailer’s window or a tire through the door window. [61] Mr.

Bellis approached and then knocked on the trailer door. Someone looked through the window. The door to the trailer wasthen kicked open by Mr. Wilson, who appeared in the doorway of the trailer brandishing one knife in each hand. Startled, Mr. Bellisbroke the aluminium handle off the side of the trailer, but he did not use it as a weapon. [62] Mr. Wilson was yelling and screaming. Mr. Wilson exited the trailer and immediately engaged Mr. Bellis in a physicalaltercation, while Mr. Bellis defended himself by grabbing onto Mr.

Wilson’s arms or wrists. [63] Despite having never been in a fight before and having no formal or informal martial arts or other self-defence training,Mr. Bellis managed to wrestle successfully with Mr. Wilson and they both tumbled into the trailer through the open door. [64] At some point Mr. Wilson came into possession of an antler and used it to stab Mr. Bellis in the head, which the next dayrequired five staples to close the head wound at the Prince Rupert Regional Hospital. Blood was everywhere. [65] As the struggle continued, Mr. Bellis was aware of the need for him to succeed, in order to defend Mr.

Brown and Ms. Oliveira.When the opportunity arose, he scrambled out of the trailer and, along with Mr. Brown, got back to the car where Ms. Oliveira waswaiting. They drove away from the trailer, eventually being stopped by Constable Phillips. [66] Exhibit 4 confirms that Mr. Bellis was actually at the Prince Rupert Regional Hospital twice during the early morning hours ofNovember 26, 2018. The first hospital visit was at 20 minutes after midnight. Mr. Bellis was brought to the hospital by ambulance andpresented with a two-inch laceration that he told hospital staff was caused by an antler.

The second hospital visit was at 8 a.m., when hereturned due to his head laceration still bleeding. According to the emergency room record, Mr. Bellis was “still drunk” and required sixstaples in the head to close the wound. LEGAL CONCEPTS REGARDING CREDIBILITY AND SELF-DEFENCE [67] Counsel have provided the court with several cases that they each argue supports their positions in the present case. I havereviewed and considered the caselaw provided to me. [68] Counsel for the BC Prosecution Service has provided the court with two cases: R. v. Proulx, 2000 SCC 5; R. v. Khill, 2020 ONCA 151. [69] Counsel for Mr.

Bellis has provided the court with four cases: R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742; R. v. C.W.H., (BC CA), [1991] B.C.J. No. 2753; R. v. Presley, 2015 BCPC 61; R. v. Doak, 2017 BCPC 52. Credibility [70] Since Mr. Bellis testified in the present case, I have reviewed and followed the well-known instructions given by Justice Cory inW.(D.): Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge.

A trialjudge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the Accused, obviously you must acquit. Second, if you do not believe the testimony of the Accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the Accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the Accused.

[71] Furthermore, I have also given consideration to Justice Riley’s guidance at paragraphs 21 and 22 in R. v. D.M.D., 2019 BCSC1523: [21] Thus, where there are two competing accounts of the events in question, one given by the complainant and then the other by theaccused, it is not simply a matter of choosing which of the two is more believable. It is imperative to approach the evidence in a casesuch as this with a firm understanding of the concept of proof beyond a reasonable doubt. The evidence must be assessed under the well-known framework established in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742.

If I believe Mr. D's testimony, he must beacquitted. Even if I do not believe Mr. D's testimony, but it leaves me with a reasonable doubt, he must be acquitted. If I am not left witha reasonable doubt based on Mr. D's testimony, I must ask myself whether on the basis of the evidence that I do accept, Mr. D's guilt hasbeen proven beyond a reasonable doubt.

These are the key questions that must be addressed. [22] When applying these principles as discussed in W.(D.), a trial judge is not obliged to examine the evidence in "any particularchronology," for example, by looking first at the evidence of the accused and then the rest of the evidence: R. v. J.E.T., 2004 BCCA 555,at para. 14, citing R. v. Minuskin (2003), (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.). Regardless of the order inwhich the evidence is analyzed, the judge must always have regard to the "basic principles underlying the W.(D.) instruction,":R. v.

Minuskin at para. 22. [72] Justice MacNaughton provided further insight and direction regarding credibility and reliability recently in R. v. Chambers, 2021BCSC 799: [125] In Bradshaw v.

Stenner, 2010 BCSC 1398 at para. 186, Justice Dillon summarized the factors that might be helpful to bothassessments: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides … The art of assessment involves examination of various factors such as theability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify hisrecollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changeshis testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whethera witness has a motive to lie, and the demeanour of a witness generally. … Ultimately, the validity of the evidence depends on whetherthe evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time … [126] To those factors, I add that a court may believe some, all, or none of the evidence of a witness, and that credibility determinations“may not be purely intellectual and may involve factors that are difficult to verbalize”: R. v.

R.E.M., 2008 SCC 51 at para. 49. It isimportant not to base determinations of credibility on emotional evaluation, stereotypes, guesswork, or other kinds of impermissiblereasoning. Credibility and reliability decisions have to be grounded in reason and made as objectively as possible. [127] It is also important to be cautious in placing too much reliance on the demeanour of a witness. I first encountered the witnesses inthis case at trial. Thus, my assessment of their demeanor is a first impression, and I have no baseline against which to measure it.

Trialsare unfamiliar to most witnesses, and many find them an intimidating experience, particularly when the stakes are high, as they are in acriminal case. . . . [154] The W.(D.) framework should not be applied formulaically. As has been repeatedly said, the framework is not a magicalincantation or something to be slavishly followed. Rather, it is the principles underlying the W.(D.) framework that are important. [155] In his article, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L.

Rev. 31,David Paciocco, now Justice Paciocco, of the Ontario Court of Appeal, discussed those principles: 1. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred. 2. A criminal fact-finder who believes evidence that is inconsistent with the guilt of the Accused cannot convict the Accused. 3. Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether thatevidence is true, there is a reasonable doubt and an acquittal must follow. 4.

Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not proveguilt. 5. Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the Accused should not be convicted unless theevidence that is given credit proves the Accused guilty beyond a reasonable doubt. [73] In light of what the caselaw teaches, I have kept in the forefront of my mind that the determination of guilt or innocence cannotbecome a credibility contest between Mr. Wilson and Mr. Bellis. As recently explained by Justice DeWitt-Van Oosten in R. v.

Redden,2021 BCCA 230, at paragraphs 80 and 81: [80] In deciding whether he believed the appellant, or, even if he did not believe him, whether the appellant’s evidence raised areasonable doubt, the judge was entitled (and indeed obliged) to consider the appellant’s testimony in the context of the other evidencebefore him. [81] A court does not assess the evidence of an accused in isolation: R. v. Wanihadie, 2019 ABCA 402 at para. 31.

As a result, therewill be cases where a denial, defences that rely heavily on the testimony of the accused, or hypothesized inferences are rejected outright“based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”: R. v. D.(J.J.R.)(2006), (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53, leave to appeal ref’d, [2007] S.C.C.A. No. 69. This

does not mean that the trial judge has erroneously chosen between competing narratives, simply preferring one to the other. To do sowould constitute reversible error. Rather, it represents a finding that the testimony of the accused cannot stand in light of the cogency ofthe other evidence. [74] Finally, I have also noted Justice Holmes’ caution in R. v. Adubofour-Poku, 2018 BCSC 78: [31] It is an error of law for a trial judge to subject the accused person’s evidence to a stricter standard of scrutiny than thecomplainant’s evidence. Such an error was found in R. v.

J.S.W., 2013 ONCA 593, and led to an order for a new trial. Mr. Adubofour-Poku relies in particular on the following, at paras. 55-57: [55] A court should intervene to prevent a miscarriage of justice where the appellant can show that the trial judge applied differentstandards in assessing the credibility of the witnesses: R. v. J.H. (2005), (ON CA), 192 C.C.C. (3d) 480 (Ont.

C.A.), atparas. 58-65. [56] It is an error of law to subject the evidence of the accused to a different and stricter level of scrutiny than that of the complainant.That error of law can lead to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code: R. v.

Minuskin (2003), (ON CA), 68 O.R. (3d) 577 (C.A.). [57] I am satisfied that once the trial judge discounted the appellant’s own evidence, based on a flawed assessment of the import of theappellant’s statements to the police, the trial judge then applied a different level of scrutiny to the complainant’s evidence as opposed tothat of the defence witnesses.

Important inconsistencies in the complainant’s evidence were dismissed, such as the fact that thecomplainant told the police she had been touched by the appellant under her clothes and inside her vagina, which statement wascorroborated as having been reported to the complainant’s friend, but then was changed at trial to having been touched over her clothesand “in between”. Self-Defence Claim by Mr. Bellis [75] Mr. Bellis relies upon s. 34 of the Criminal Code and the law of self-defence.

Section 34 reads as follows: Defence - use or threat of force 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 fromthat use or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstancesof the 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 [use][sic, 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. No defence (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they arerequired or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act thatconstitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [76] On October 14, 2021, in R. v.

Khill, 2021 SCC 37, the Supreme Court of Canada rendered three separate opinions interpretingwhat they referred to as the “new” s. 34 of the Criminal Code. For our purposes, we only need concern ourselves with Justice Martin’sdecision, writing for the majority.

[77] As stated by Justice Martin in Khill: [1] The law of self-defence plays an important

part in the criminal law and in society. At the core of the defence is the sanctity ofhuman life and physical inviolability of the person. Preserving life and limb operates to explain both why the law allows individuals toresist external threats and why the law imposes limits on the responsive action taken against others in its name. Life is precious. Anylegal basis for taking it must be defined with care and circumspection (R. v.

McIntosh, (SCC), [1995] 1 S.C.R. 686, atpara. 82). [2] The contours of our law of self-defence are tied to our notions of culpability, moral blameworthiness and acceptable humanbehaviour. To the extent self-defence morally justifies or excuses an accused’s otherwise criminal conduct and renders it non-culpable, itcannot rest exclusively on the accused’s perception of the need to act. Put another way, killing or injuring another cannot be lawfulsimply because the accused believed it was necessary. Self-defence demands a broader societal perspective.

Consequently, one of theimportant conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances. A factfinder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparable situation. [3] In March 2013, Parliament’s redesigned Criminal Code provisions on self defence came into force. These changes not onlyexpanded the offences and situations to which self-defence could apply, but also afforded an unprecedented degree of flexibility to thetrier of fact.

This flexibility is most obviously expressed by the requirement to assess the reasonableness of the accused’s response byreference to a non-exhaustive list of factors, one of which is “the person’s role in the incident”. The

interpretation and breadth of this newphrase is at the heart of this appeal. . . . [37] The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self-defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someoneelse; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, unders. 34(1)(c), the accused’s act must be reasonable in the circumstances.

Section 34(2) sets out nine non-exhaustive factors that shall betaken into account when considering if the accused’s act was reasonable in the circumstances under s. 34(1)(c). . . . [46] In practice, the new provisions are simultaneously more generous to the accused and more restrictive: the provisions narrow thescope of self-defence in some factual circumstances and broaden it in others (R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras.47-48; Paciocco (2014), at p. 296).

The transposition of mandatory conditions into mere factors suggests more flexibility in accessing thedefence, but this added flexibility is counter-balanced by the requirement to consider certain factors — including proportionality and theavailability of other means to respond to the use [of threats or force] [sic, or threat of force] — in every case in which they are relevant,regardless of the genesis of the confrontation or the features of the dispute. . . . [48] . . .

Because the defence is now available in circumstances that may not fit neatly within the traditional justification-basedframework, the need to consider all of the accused’s conduct over the course of the incident that is relevant to the reasonableness of theact of purported self-defence takes on greater importance. . . . C. The Three Inquiries Under

Section 34 [51] The three inquiries under s. 34(1), set out above, can usefully be conceptualized as (1) the catalyst; (2) the motive; and (3) theresponse … The Catalyst — Paragraph 34(1)(a): Did the Accused Believe, on Reasonable Grounds, that Force Was Being Used or ThreatenedAgainst Them or Another Person? [52] This element of self-defence considers the accused’s state of mind and the perception of events that led them to act. As statedpreviously, the new provisions include both defence of self and defence of another.

Unless the accused subjectively believed that forceor a threat thereof was being used against their person or that of another, the defence is unavailable. [53] Importantly, the accused’s actual belief must be held “on reasonable grounds”. Good reason supports the overlay of an objectivecomponent when assessing an accused’s belief under s. 34(1)(

a) and in the law of self-defence more generally. As self-defence operatesto shield otherwise criminal acts from punitive consequence, the defence cannot depend exclusively on an individual accused’sperception of the need to act. The reference to reasonableness incorporates community norms and values in weighing the moralblameworthiness of the accused’s actions (Cinous, at para. 121).

It “is a quality control measure used to maintain a standard of conductthat is acceptable not to the subject, but to society at large”. . . [54] The test to judge the reasonableness of the accused’s belief under the self defence provisions has traditionally been understood tobe a blended or modified objective standard.

Reasonableness was not measured “from the perspective of the hypothetically neutralreasonable man, divorced from the appellant’s personal circumstances” … Instead, it was contextualized to some extent: the accused’sbeliefs were assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accusedwhere those characteristics and experiences were relevant to the accused’s belief or actions . . . [55] For example, an accused’s prior violent encounters with the victim were taken into account to assess whether the accusedbelieved on reasonable grounds that they faced an imminent threat of death or grievous bodily harm … An accused’s mental disabilitieswere also considered in the reasonableness assessment . . .

[56] However, not all personal characteristics or experiences are relevant to the modified objective inquiry.

The personal circumstances of the accused that influence their beliefs — be they noble, anti-social or criminal — should not undermine the Criminal Code ’s most basic purpose of promoting public order … Reasonableness is not considered through the eyes of individuals who are overly fearful, intoxicated, abnormally vigilant or members of criminal subcultures … Similarly, the ordinary person standard is “informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms ” … Personal prejudices or irrational fears towards an ethnic group or identifiable culture could never acceptably inform an objectively reasonable perception of a threat.

This limitation ensures that racist beliefs which are antithetical to equality cannot ground a belief held on reasonable grounds. Doherty J.A. succinctly illustrated this principle in his reasons in this appeal, at para. 49: For example, an accused’s “honest” belief that all young black men are armed and dangerous could not be taken into account in determining the reasonableness of that accused’s belief that the young black man he shot was armed and about to shoot him. To colour the reasonableness inquiry with racist views would undermine the very purpose of that inquiry.

The justificatory rationale for the defence is inimical to a defence predicated on a belief that is inconsistent with essential community values and norms. [57] The question is not therefore what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive … The law also continues to accept that an honest but mistaken belief can nevertheless be reasonable and does not automatically bar a claim to self-defence . . . [58] Reasonableness is ultimately a matter of judgment and “[t]o brand a belief as unreasonable in the context of a self-defence claim is to declare the accused’s act criminally blameworthy” . . .

The Motive — Paragraph 34(1)(b): Did the Accused Do Something for the Purpose of Defending or Protecting Themselves or Another Person from that Use or Threat of Force? [59] The second element of self-defence considers the accused’s personal purpose in committing the act that constitutes the offence. Section 34(1)(

b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. This is a subjective inquiry which goes to the root of self-defence. If there is no defensive or protective purpose, the rationale for the defence disappears . . .

The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation. [60] The motive provision also distinguishes self-defence from other situations that may involve the excusable or authorized application of force by an accused, such as preventing the commission of an offence . . . defence of property . . . or citizen’s arrest . . . Clarity as to the accused’s purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused’s purpose at any given point in time.

The range of reasonable responses will be different depending on whether the accused’s purpose is to defend property, effect an arrest, or defend themselves or another from the use of force. [61] An accused’s purpose for acting may [involve] [sic, evolve] as an incident progresses or escalates.

Parliament’s decision to modify the law of defence of person, defence of property and citizen’s arrest under a single bill recognized this overlap, as each is “directly relevant to the broader question of how citizens can lawfully respond when faced with urgent and unlawful threats to their property, to themselves and to others” . . . Initial steps taken to defend one’s property may transition into a situation of self-defence. Likewise, separate defences may rightly apply to distinct offences or phases of an incident . . .

At the same time, great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused’s action can be properly aligned to their stated purpose. Clarity of purpose is not meant to categorize the accused’s conduct in discrete silos, but instead appreciate the full context of a confrontation, how it evolved and the accused’s role, if any, in bringing that evolution about.

As recognized by the then-Parliamentary Secretary for the Minister of Justice at second reading, “all of these laws, any one of which may be pertinent to a given case, must be clear, flexible and provide the right balance between self-help and the resort to the police. That is why all these measures are joined together in Bill C-26” … The Response — Paragraph 34(1)(c): Was the Accused’s Conduct Reasonable in the Circumstances? [62] The final inquiry under s. 34(1)(

c) examines the accused’s response to the use or threat of force and requires that “the act committed [be] reasonable in the circumstances”. The reasonableness inquiry under s. 34(1)(

c) operates to ensure that the law of self- defence conforms to community norms of conduct. By grounding the law of self-defence in the conduct expected of a reasonable person in the circumstances, an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon. The law of self-defence might otherwise “encourage hot-headedness and unnecessary resorts to violent self- help” . . .

That the moral character of self-defence is thus now inextricably linked to the reasonableness of the accused’s act is especially important as certain conditions that were essential to self-defence under the old regime — such as the nature of the force or threat of force raising a reasonable apprehension of death or grievous bodily harm — have been turned into mere factors under s. 34(2). [63] The transition to “reasonableness” under s. 34(1)(

c) illustrates the new scheme’s orientation towards broad and flexible language. While later judicial

interpretations of the old law treated the words “no more force than is necessary” as akin to “reasonableness” . . . the new provision explicitly adopts this standard and applies it in all cases. As such, the ordinary meaning of the provision is more apparent to the everyday citizen and not dependent on an appreciation of judicial

interpretation or terms of art . . . This reflects Parliament’s intent to make the law of self-defence more comprehensible and accessible to the Canadian public … [64] Through s. 34(2), Parliament has also expressly structured how a decision maker ought to determine whether

an act of self- defence was reasonable in the circumstances. As the language of the provision dictates, the starting point is that reasonableness will be measured according to “the relevant circumstances of the person, the other parties and the act”. This standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused — including size, age, gender, and physical capabilities . . .

Also added into the equation are certain experiences of the accused, including the relationship and history of violence between the parties . . . [65] Nevertheless, the trier of fact should not be invited to simply slip into the mind of the accused. The focus must remain on what a

reasonable person would have done in comparable circumstances and not what a particular accused thought at the time. For example, even if Mr. Khill’s military training qualifies as a relevant personal characteristic, it does not convert the reasonableness determination into a personal standard built only for him, much less a lower standard than would otherwise be expected of a reasonable person in his shoes. The law of self-defence cannot offer different rules of engagement for what happens at the homes of those with military experience or allow “training” to replace discernment and judgment. Section 34(1)(

c) asks whether the “act committed is reasonable in the circumstances”. It does not ask whether Mr. Khill’s military training makes his act reasonable nor whether it was reasonable for this accused to have committed the act. The question is: what would a reasonable person with similar military training do in those civilian circumstances? [66] As observed by Doherty J.A. at para. 58 of his reasons, the “relevant circumstances of the accused” in s. 34(2) can also include any mistaken beliefs reasonably held by the accused.

If the court determines that the accused believed wrongly, but on reasonable grounds, that force was being used or threatened against them under s. 34(1)(a), that finding is relevant to the reasonableness inquiry under s. 34(1)(c). However, while s. 34(1)(

a) and (

b) address the belief and the subjective purpose of the accused, the reasonableness inquiry under s. 34(1)(

c) is primarily concerned with the reasonableness of the accused’s actions, not their mental state. [67] Courts must therefore avoid treating the assessment of the reasonableness of the act under s. 34(1)(

c) as equivalent to reasonable belief under s. 34(1)(a). Beyond honest but reasonable mistakes, judges must remind juries that the objective assessment of s. 34(1)(

c) should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused’s qualities and experiences. As simply put by the then-Parliamentary Secretary to the Minister of Justice at second reading, “If a person seeks to be excused for the commission of what would otherwise be a criminal offence, the law expects the person to behave reasonably, including in the person’s assessment of threats to himself or herself, or others” . . . [68] Parliament provides further structure and guidance because the fact finder “shall” consider all factors set out in paragraphs (

a) to (

h) of s. 34(2) that are relevant in the circumstances of the case. The original bill introduced in the House of Commons provided only that the court “may” consider the enumerated factors, but that was changed to make “it clear that it is obligatory, rather than permissible, for the court to consider all relevant circumstances” . . . The factors listed are not exhaustive, and this allows the law to develop. [69] The “act committed” is the act that constitutes the criminal charge — in this case, the shooting.

Given s. 34(1)(c), the question is not the reasonableness of each factor individually, but the relevance of each factor to the ultimate question of the reasonableness of the act. There is thus no requirement for the Crown to show that a “person’s role in the incident” was itself unreasonable before it may be considered as a factor under s. 34(1)(c). As long as “the person’s role in the incident” is probative as to whether the act underlying the charge was reasonable or unreasonable it may be placed before the trier of fact.

Once a factor meets the appropriate legal and factual standards, it is [up to] [sic, for] the trier of fact to assess and weigh the factors and determine whether or not the act was reasonable. This is a global, holistic exercise. No single factor is necessarily determinative of the outcome. [70] As previously explained, Parliament’s choice of a global assessment of the reasonableness of the accused’s otherwise unlawful actions represents the most significant modification to the law of self-defence.

While new to the law of self-defence, this is not the first time Parliament has asked judges and juries to assess the reasonableness of an accused’s conduct or used a multifactorial legal test. The clear and common methodology which applies in such instances also operates under s. 34(2). The parties can be expected to make submissions about the legal

interpretation of the factors, which apply, the evidence that may support or refute them and the weight to be assigned to [each of the applicable factors] [sic, each applicable factor]. Indeed, whether a certain factor needs to be considered at all or the weight to be given to it will often be contested in final argument and/or when counsel makes submissions concerning what should be left to the jury. [ 78 ] Although I am not going to quote in detail paragraphs 72 to 107 of Khill , I note that Justice Martin sets out at paragraphs 72 to 107 the correct

interpretation of the words “the person’s role in the incident” from s. 34(2) (

c) of the Criminal Code . I adopt and apply Justice Martin’s

interpretation of the words “the person’s role in the incident” in this judgment. [ 79 ] In light of the testimony of Mr. Brown and Mr. Bellis, which essentially confirms that Mr. Bellis went to Mr. Wilson’s trailer to intercede on Ms. Oliveira’s behalf because the police were not acting, Justice Martin’s teachings at paragraph 89 are especially relevant: Self-defence is not meant to be an insurance policy or self-help mechanism to proactively take the law — and the lives of other citizens — into one’s hands.

As the Nova Scotia Court of Appeal suggested in Borden at para. 101, by including the person’s “role in the incident” in s. 34(2) (c), “a protection is hopefully present to prevent self-defence from becoming too ready a refuge for people who instigate violent encounters, but then seek to escape criminal liability when the encounter does not go as they hoped and they resort to use of a weapon.” The law should encourage peaceful resolution of disputes. It should not condone the unnecessary escalation of conflicts. [ 80 ] Finally, Justice Martin’s

summary of the current state of the law of self-defence found at paragraphs 123 and 124 of Khill is especially helpful: [123] In sum, the ultimate question is whether the act that constitutes the criminal charge was reasonable in the circumstances. To answer that question, as Parliament’s inclusion of a “person’s role in the incident” indicates, fact finders must take into account the extent to which the accused played a role in bringing about the conflict or sought to avoid it.

They need to consider whether the accused’s conduct throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge. [124] The phrase enacted is broad and neutral and refers to conduct of the person, such as actions, omissions and exercises of judgment in the course of the incident, from beginning to end, that is relevant to whether the act underlying the charge was reasonable — in other words, that, as a matter of logic and common sense, could tend to make the accused’s act more or less reasonable in the circumstances.

The conduct in question must be both temporally relevant and behaviourally relevant to the incident. This is a conjunctive test. This includes, but is not limited to, any behaviour that created, caused or contributed to the confrontation. It also includes conduct that would qualify under previous concepts, like provocation or unlawfulness, but it is not limited to or circumscribed by them. It therefore applies to all relevant conduct, whether lawful or unlawful, provocative or non-provocative, blameworthy or non-blameworthy, and whether

minimally responsive or excessive. In this way, the accused’s act, considered in its full context and in light of the “equities of thesituation”, is measured against community standards, not against the accused’s own peculiar moral code . . . [81] In my opinion, given the various versions of events presented by the witnesses in the present case, including the evidence ofMr. Bellis that: 1. he believed Ms. Oliveira had been wronged by Mr. Wilson and that the police were not acting to correct the situation; 2. upon his approach to Mr. Wilson’s trailer door, because of the manner in which Mr.

Wilson exited the trailer holding twoknives in a threatening manner, he believed that force or a threat of force was being used against him - and possibly Ms. Oliveira andMr. Brown - by Mr. Wilson; 3. he believed that he was merely protecting himself, Ms. Oliveira, and Mr. Brown from the threat that was Mr. Wilson; and 4. he believed that he had no option other than to defend himself from Mr. Wilson. I must consider Mr. Bellis’ role in the November 25, 2018 incident. Accordingly, I have considered Mr.

Bellis’ conduct, including hisactions, omissions, and exercises of judgment during the course of the November 25, 2018, incident from beginning to end. [82] It is clear to me that had Mr. Bellis simply resisted the urge to go to Mr. Wilson’s trailer in the first place, none of the events ofthe evening of November 25, 2018, would have occurred, regardless of who started the altercation between himself and Mr. Wilson, andregardless of how he ended up inside Mr. Wilson’s trailer. In other words, it is not difficult to conclude that Mr.

Bellis is the author of hisown misfortune. [83] On the other hand, as per Justice Sopinka for the majority and Justice Major in his dissenting opinion, the case of R. v.

Evans, (SCC), [1996] 1 S.C.R. 8, confirms the common law doctrine that the occupier of a residential dwelling is deemed togrant the public permission to approach the door and knock. [84] And while L'Heureux Dubé expressly declined deciding in Evans what happens if a home’s occupant chose: . . . to revoke this implied licence explicitly, for example by installing a locked gate at the entrance to the property, or posting signs tothat effect" . . . or when "[t]he prohibition could be a sign, a verbal instruction or some other indicia arising on the particular facts" . . .

Justice Sopinka, for the majority, did state at paragraphs 6 to 8: 6 I agree with Major J. that the common law has long recognized an implied licence for all members of the public, including police,to approach the door of a residence and knock. As the Ontario Court of Appeal recently stated in R. v. Tricker (1995) . . . The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, onlegitimate business to come on to the property. The implied licence ends at the door of the dwelling.

This proposition was laid down bythe English Court of Appeal in Robson v. Hallett, [1967] 2 All E.R. 407 . . . As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock. Where thepolice act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant.

The impliedinvitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise havein the approach to the door of his or her dwelling. 7 If one views the invitation to knock as a waiver of the occupier's expectation of privacy in the approach to his or her home, itbecomes necessary to determine the terms of that waiver. Clearly, under the "implied licence to knock", the occupier of a home may betaken to authorize certain persons to approach his or her home for certain purposes.

However, this does not imply that all persons arewelcome to approach the home regardless of the purpose of their visit. For example, it would be ludicrous to argue that the invitation toknock invites a burglar to approach the door in order to "case" the house. The waiver of privacy interests that is entailed by the invitationto knock cannot be taken . . . that far. 8 In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind thepurpose of the implied invitation. According to the British Columbia Court of Appeal in R. v.

Bushman (1968), (BCCA), 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant. As theCourt in Bushman stated, at p. 19: The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who haslawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he canconveniently and in a normal manner communicate with the occupant. I agree with this statement of the law.

In my view, the implied invitation to knock extends no further than is required to permitconvenient communication with the occupant of the dwelling. The "waiver" of privacy rights embodied in the implied invitation extendsno further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose ofcommunicating with the occupant are authorized by the "implied licence to knock".

Where the conduct of the police (or any member ofthe public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectivelybeen breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder. [85] I pause to note that I heard no evidence in the present case of “Do Not Trespass” signs being located at the entrance to thecampground or at Mr. Wilson’s trailer. As such, I find that there was no law or common law principle that prohibited Mr. Bellis fromapproaching Mr. Wilson’s trailer door.

[ 86 ] Nevertheless, while the implied license to knock extends to the front door of a residence, it goes no further. The sanctity of a private dwelling has long been recognized. In the absence of one of the recognized exceptions being present or the permission of the owner or occupant, a person cannot enter the residence. MY DECISION [ 87 ] In reviewing the trial evidence, the correct application of the burden of proof requires me to acquit Mr. Bellis if the evidence, as a whole, raises a reasonable doubt about his guilt. In other words, it is possible for me to find Mr.

Bellis’ evidence to be unbelievable in whole or part, but still have a reasonable doubt about what actually happened on November 25, 2018. In such a situation, the benefit of the doubt must go to Mr. Bellis by way of an acquittal on both counts. [ 88 ] As recently taught by Justice Griffin in the first sentence of paragraph 72 in R. v. J.M. , 2021 BCCA 263 , I have reminded myself that: A trial judge’s role in assessing evidence includes analyzing arguments advanced by the party challenging the credibility of a witness. [ 89 ] Having listened closely to the testimony of Mr.

Bellis and the other witnesses who testified during the course of the trial, and having examined Exhibit 4 in detail, I am unable to accept most of Mr. Bellis’ testimony. Moreover, the nonchalant manner of his testimony leaves me unconvinced, for the most part, in Mr. Bellis’ self-proclaimed philanthropy on behalf of Ms. Oliveira, his self- defence fighting skills, and his innocence throughout. [ 90 ] Mr. Bellis may now honestly believe the version of events he presented to the court in his testimony, but I do not. Based upon the evidence of Mr. Brown and Mr. Wilson, I find that Mr.

Wilson grabbed a single knife and at no time possessed two knives as described by Mr. Bellis. [ 91 ] In hearing and reviewing the testimony of Mr. Wilson, like with Mr. Bellis, I found it to be self-serving and less than truthful at times. Although much of what I was told about the events leading up to the altercation on the evening on November 25, 2018, was hearsay, it is clear on the evidence that I do accept that Mr. Wilson was using Ms. Oliveira’s telephone for mischievous purposes in the days leading up to the incident. [ 92 ] While I have no doubt that Mr.

Wilson was in a physical altercation on November 25, 2018, and received the injuries pictured in Exhibit 1, it is hard for the court to accept his claim of innocence in the entire affair, given the events leading up to the altercation and given his own description of how he reacted in response to the events of November 25, 2018. [ 93 ] While Mr. Wilson’s testimony regarding the initial screaming, yelling, and banging on the side of his trailer is consistent with the testimony of Mr. Morneau, including a female voice being heard and a couple of guys banging on Mr. Wilson’s trailer and yelling for Mr.

Wilson to come out of the trailer, Mr. Morneau’s uncontested evidence was that he saw a flower pot flying and that he did not see anything in the hands of the two guys, differs significantly from the testimony of Mr. Wilson. More importantly, Mr. Morneau’s testimony is without context, in that Mr. Morneau did not view the events from start to finish. Furthermore, Mr. Morneau could not make out everything what was being said and, due to the darkness, had difficulties seeing what was happening. [ 94 ] Several other people apparently witnessed some or all of the altercation between Mr.

Wilson and his alleged attackers, but the BC Prosecution Service elected not to call them as witnesses. [ 95 ] If I were able to find that the BC Prosecution Service has proven beyond a reasonable doubt that after a battery charger and tire were thrown into Mr. Wilson’s trailer through two different windows, that: 1. Mr. Wilson unlocked and then opened his trailer door with the broken window to see what the commotion outside was; 2. Mr. Wilson did not have a knife in one of his hands when he initially opened the trailer door; 3. Mr. Bellis was outside the trailer door; 4. Mr.

Bellis had already ripped the aluminium handle off the side of the trailer and was hitting the side and steps of the trailer with the aluminium handle, followed by Mr. Bellis swinging the aluminium handle at Mr. Wilson; 5. Mr. Wilson did not initiate first contact with Mr. Bellis; 6. Mr. Bellis confronted Mr. Wilson in the manner Mr. Wilson testified to; 7. After about a minute of Mr. Bellis swinging the aluminium handrail at Mr. Wilson, another male, who, based on the evidence as a whole, I take to be Mr. Brown, appeared from beside the trailer, holding a piece of wood in his hand that Mr.

Wilson thought could be one of the pieces of wood he utilizes for making walking sticks from; 8. Mr. Brown stated to Mr. Wilson words to the affect that Mr. Wilson “was trying to ruin a family” and, "Come outside and I'll kill you”; and 9. Ms. Oliveira exited the car and approached Mr. Wilson’s trailer, yelling a number of things, including, "Beat him up, kill him" and, "Beat him up, get him," and, " Kill him, kill him, hurt him." I would have no hesitation in finding that a claim of self-defence is not available to Mr. Bellis per Justice Martin’s teachings in Khill . [ 96 ] In regard to Mr.

Wilson’s version of fleeing his trailer, it, too, is supported in part by the independent evidence of Mr. Morneau. Nevertheless, Mr. Wilson’s testimony that he was being chased singularly by Mr. Bellis, who had the aluminium handle from the side of the trailer in his hand while hitting Mr. Wilson in the head, knee, and right shoulder as Mr. Wilson tried to get away, is not supported by

Mr. Morneau. [ 97 ] Accordingly, just as Mr. Wilson may have been mistaken about 1. the number of people chasing him after he made his escape from the trailer; and 2. someone exiting the fifth-wheel as he got to the wooden deck of the fifth-wheel, which again is not supported by Mr. Morneau who testified that the fifth wheel was vacant with its owners on vacation, so could Mr. Wilson be mistaken about Mr. Bellis being the person chasing, hitting, and grappling with him, as opposed to Mr.

Brown. [ 98 ] Similarly, I find it troubling that having heard banging on the trailer, followed by the battery charger that he had hooked up to his car earlier in the day flying through and breaking the kitchen window, screaming outside, and a tire coming through the window of the trailer’s locked door, Mr. Wilson would open and look outside his door to see what was happening, as opposed to calling 911. After all, Mr.

Wilson testified that he had a premonition that he might be attacked that evening, and it was for that reason he had locked the trailer door, not a usual practice for him. [ 99 ] In considering the totality of the circumstances, I am unable to say that it was unrealistic that Mr. Wilson’s response to Mr. Bellis approaching his trailer door, whether or not items were thrown inside the trailer first, was to burst out of his own door armed with a knife and engaging Mr. Bellis in a melee. It would account for the banging noises and yelling heard by Mr. Morneau, especially given how dark it was outside and Mr.

Morneau not having witnessed the altercation from start to finish. [ 100 ] It is also troubling that no police officers testified as to jewellery being stolen from Mr. Wilson’s trailer, then being subsequently recovered from Ms. Oliveira’s car and returned to Mr. Wilson. Mr. Brown was not cross-examined on the issue and no evidence was tendered to support Mr. Wilson’s allegation about the theft of his jewellery by one or both of Mr. Brown and Ms. Oliveira. [ 101 ] Turning to Mr. Brown’s testimony, although Constable Lazoviks thought otherwise, based on the totality of the evidence from Mr.

Brown and Constable Lazoviks, I find that Mr. Brown was not only physically and mentally exhausted at 4:30 a.m. on November 26, 2018, when he gave his in-custody recorded statement to Constable Lazoviks, but that he was also still under the influence of alcohol and cocaine. Given how exhausted he was and his state of intoxication from alcohol and cocaine at the time of the incident, it is not surprising that Mr.

Brown’s recollection of events would be different at trial than when he gave his recorded statement to Constable Lazoviks in the early morning of November 26, 2018. [ 102 ] I further find that while being cross-examined by Mr. Schille, Mr. Brown changed or fine-tuned his evidence at times when confronted with the words he spoke to Constable Lazoviks on November 26, 2018, but that he did not change his evidence in a material way with regard to how the physical altercation between Mr. Wilson and Mr. Bellis started or how Mr.

Bellis came to enter the trailer. [ 103 ] Although not canvassed in detail by either counsel, there is the very real possibility that Mr. Brown’s November 26, 2018, recorded statement was self-serving and not completely truthful, in that he was under arrest and still in custody for the November 25, 2018, incident, and he might not have wanted to cast blame on himself. [ 104 ] Regardless of Mr. Brown’s motivation for giving the November 26, 2018, recorded statement or testifying in court on September 8 and October 8, 2021, the BC Prosecution Service called Mr. Brown as a witness and Mr.

Brown’s evidence clearly called into question some of the evidence of Mr. Wilson, especially on the key issues of who started the physical altercation and how Mr. Bellis came to be inside the trailer. [ 105 ] It is further troubling to the court that the BC Prosecution Service did not tender any physical evidence or photographs of the crime scene in this case. It would have been of great assistance to the court to see photographs of the trailer where the altercation occurred, the physical damage done to the trailer, and the surrounding properties.

It would have been of assistance to the court to have had the aluminium handle allegedly used by Mr. Bellis to attack Mr. Wilson entered as an exhibit, along with the knife used by Mr. Wilson at the door of the trailer, or at the very least photographs of these items. Finally, a map of the area where the trailer was situated on November 25, 2018, would have been helpful. [ 106 ] Based upon the totality of the evidence, I am unable to determine who initiated the physical altercation between Mr. Wilson and Mr. Bellis. Furthermore, I am unable to conclude that the version of events relayed by Mr.

Wilson are true or accurate. Indeed, the BC Prosecution Service’s own witnesses contradict the evidence of Mr. Wilson in relation to how the physical altercation started, how Mr. Bellis came to be inside the trailer, and who was chasing who outside the trailer. [ 107 ] While I reject, for the most part, the evidence of Mr. Bellis as being self-serving and fantastical, on the basis of the evidence which I do accept, I am not convinced beyond a reasonable doubt that Mr. Wilson did not start the physical altercation between himself and Mr. Bellis. Furthermore, I am not convinced beyond a reasonable doubt that Mr.

Bellis entered Mr. Wilson’s trailer for a nefarious reason or other than as described by Mr. Brown and Mr. Bellis. That is, during a struggle over the knife that Mr. Wilson possessed, the wrestling parties fell through the doorway and into the trailer. [ 108 ] Given my findings and, despite my earlier and obvious observation that if Mr. Bellis had simply resisted the urge to go to Mr. Wilson’s trailer in the first place, none of the events of the evening of November 25, 2018 would have occurred, I find that the principles espoused by Justice Martin in Khill regarding self-defence are applicable to Mr. Bellis.

That is: if Mr. Wilson initiated the physical melee by bursting through the trailer door armed with a knife as described by Mr. Brown and Mr. Bellis, then self-defence is available to Mr. Bellis, despite his ill-informed decision to go to Mr. Wilson’s trailer on November 25, 2018. [ 109 ] My not being able to determine beyond a reasonable doubt if Mr. Bellis initiated the physical melee with Mr. Wilson is, in the end, fatal to the prosecution’s case. Applying the law as set out in W.(D.) and the many decisions that have followed it, and despite the reality that I am not left in doubt by the evi

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