R. v. Colpaert, 2022 BCPC 241

Citation: R. v. Colpaert 2022 BCPC 241 Date: 20221006 File No: 31123-2-KC Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD GERARD COLPAERT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: P. Beirne Counsel for the Defendant: K. W. Anderson Place of Hearing: Prince Rupert , B.C. Date of Hearing: October 5 and 6, 2022 Date of Judgment: October 6, 2022 [ 1 ] Given that Mr.

Colpaert is in custody and has been since his arrest on the alleged offence date of May 9, 2022, I believe the court owes it to the complainant and to the accused to render a decision as quickly as possible. I have decided and am prepared to deliver my reasons for judgment now. [ 2 ] I reserve the right to order a transcript and edit these reasons for judgment to ensure the proper structure, grammar, and readability. I also reserve the right to add the full citations and quotes from any caselaw that I refer to in my decision, but the result and

substance of my decision will not change. The Charges [ 3 ] Mr. Colpaert is facing six charges on Information 31123-KC-2: Count 1: … on or about the 9th day of May, 2022, at or near Prince Rupert, in the Province of British Columbia, in committing assault of P.L., did carry, use, or threaten to use a weapon or an imitation weapon, contrary to

Section 267 (

a) of the Criminal Code . Count 2: … on or about the 9th day of May, 2022, at or near Prince Rupert, in the Province of British Columbia, did commit assault of P.L., contrary to

Section 266 of the Criminal Code . Count 3: … on or about the 9th day of May, 2022, at or near Prince Rupert, in the Province of British Columbia, did knowingly utter or convey a threat to P.L. to cause death of bodily harm to P.L., contrary to

Section 264.1(1) (

a) of the Criminal Code . Count 4: … on or about the 9th day of May, 2022, at or near Prince Rupert, in the Province of British Columbia, did carry or have in his possession a weapon, for a purpose dangerous to the public peace or for the purposes of committing an offence, contrary to s. 88(1) of the Criminal Code . Count 5: … on or about the 9th day of May, 2022, at or near Prince Rupert, in the Province of British Columbia, committed theft of property of P.L., of a value not in excess of five thousand dollars … contrary to

Section 334 (

b) of the Criminal Code . Count 6: … on or about the 9th day of May, 2022, at or near Prince Rupert, in the Province of British Columbia, being at large on a release order, did fail to comply with a condition of that release order by being in possession of a weapon, contrary to Section 145(5) (

a) of the Criminal Code . [ 4 ] The prosecution called two witnesses: the complainant and the lead police investigator, Constable Doney. The defence called two witnesses: the accused and Mr. Jose, the taxi driver. Background [ 5 ] Mr. Colpaert and the complainant had known each other for approximately one year at the time of the alleged offences on May 9, 2022. They were in a romantic relationship. [ 6 ] When they started their relationship, Mr. Colpaert was subject to the electronic monitoring program and was wearing what is referred to on the streets as "an ankle bracelet." In addition, on April 28, 2022, Mr.

Colpaert pled guilty to several charges and was sentenced. Judge Stewart credited Mr. Colpaert with two months of pre-sentence time in custody and sentenced him to probation for a year. Judge Stewart also released Mr. Colpaert from custody in relation to the outstanding charges he was facing in Prince Rupert Court File 31036-1. Condition 11 of the probation order and condition 7 of the release order have identical no-weapons conditions, which include no bear spray: Condition 11: You must not possess, directly or indirectly any weapon as defined by the Criminal Code , including: (

a) firearms and ammunition; (

b) cross-bows, prohibited or restricted weapons or devices, or explosive substances; (

c) anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; (

d) any imitation of all the above, including any compressed air guns or BB/pellet guns; or (

e) any related authorizations, licences and registration certificates, and you must not apply for any of these. (

f) any conductive energy weapon (

g) bear spray. [ 7 ] The complainant and Mr. Colpaert both have substance abuse issues. There are perhaps mental health issues with both of them. The complainant had attempted suicide on more than one occasion. Drugs, however, were what brought them together, and it was drugs - - that they both tried to eliminate from their lives -- that ultimately resulted in their breaking up. [ 8 ] Before they moved in together, Mr. Colpaert would often show up at the complainant's basement suite with his friends, and it appeared to the complainant that Mr. Colpaert was quite jealous of her friends.

In her own words, she felt trapped in her home. [ 9 ] At the start of their relationship, Mr. Colpaert told the complainant he had multiple women he was sleeping with. However, when they pledged to each other they would be clean and sober and stay away from drugs, Mr. Colpaert committed to it being just the two of them in a relationship. They began residing together in the complainant's home. The complainant sent her six-year-old son to live with her mother. By the time Mr. Colpaert was released from custody at the end of April 2022, the relationship had started to deteriorate.

May 6, 2022 [ 10 ] On May 6, 2022, during the relationship breakdown, the complainant attempted suicide by cutting herself and swallowing what she told the court to be some 250 Tylenol pills. She tried to commit suicide because she knew her relationship with Mr. Colpaert was

over. Furthermore, Mr. Colpaert had disappeared for two days, and the complainant was concerned that he may have had a heart attack. She called the police, but Mr. Colpaert was not located. Police apparently opened a missing person's file. The complainant started drinking alcohol and became very depressed. [ 11 ] At some point on May 6, Mr. Colpaert found out from the complainant that she had attempted suicide. He went to her home. He confronted her there and found what he said were multiple knives on her bed (the complainant testified there was only one knife), many pills and a Tylenol container on the bed.

He attempted to get the complainant to throw up by putting his finger down her throat. Although he was unsuccessful in getting her to throw up, the complainant bit his finger hard enough that she opened a wound. Mr. Colpaert now has a scar on his finger from the bite. [ 12 ] Mr. Colpaert testified that he was in the complainant's home for 10 to 15 minutes on May 6. The complainant says he was there for five minutes. Regardless of how long he was there, an ambulance was called, and Mr. Colpaert left.

He then drove around with his friend but did not wait to find out if the ambulance attended or if there was any other help for the complainant. [ 13 ] The complainant testified she does not know how she got to the hospital, although she does remember the police showing up at her home around midnight or 1:00 a.m. on May 6. She recalled that she engaged in a screaming match with Mr. Colpaert, felt like she was dying, and that Mr.

Colpaert was saying horrible things to her, such as, "I was dead to him" and "He was not going to see me again." He also called her names like "goof." [ 14 ] While in the hospital, after she had received her mobile phone from her mother, she began texting with Mr. Colpaert over the next couple of days. She says Mr. Colpaert told her he was cleaning up and getting his things from her residence. The complainant says she was okay with Mr. Colpaert leaving the relationship. She just wanted it over with, and she just wanted her keys back. [ 15 ] The complainant also believed that Mr. Colpaert violated his bail terms.

He had breached his curfew and was running from the law. She distinctly remembered texting him about her house keys, and she asked Mr. Colpaert to leave her house keys in her mailbox for her. The complainant was emotionally upset due to the text messages that went back and forth between herself and Mr. Colpaert. When she was discharged from the hospital, she continued texting Mr. Colpaert. [ 16 ] The complainant remembered a text message from Mr. Colpaert, in which Mr. Colpaert told her that he was taking her rings with him until he got his chains back from her. In particular, his 24-carat chains.

Although he had been living on the streets and had found himself in and out of jail, his chains were very dear to his heart. There were four rings that the complainant was concerned about, one of which was her sister's wedding band. She did not care about the other three rings, but she wanted her sister's wedding band. May 9, 2022 Complainant's Evidence [ 17 ] On the offence date of May 9, 2022, while driving her vehicle, the complainant saw Mr. Colpaert getting into a taxi outside her home.

She stopped her vehicle nose to nose with the taxicab, but not so close that the taxi could not turn and leave without backing up. The complainant testified that she was less than happy. She was upset, mad, and angry, and she got out of her vehicle and came to the taxi yelling. She wanted her things from Mr. Colpaert. She wanted her keys, and she wanted her sister's wedding band. The windows to the taxi were open, but the doors were locked. She screamed at the taxi driver to call the police and said that Mr. Colpaert was wanted on warrants.

She forcibly tried to open the back driver's side door of the taxi, which had been locked. At some point, Mr. Jose, the taxi driver, unlocked the doors. [ 18 ] Mr. Colpaert exited the taxi from the rear passenger side door. The complainant went to him and tried to get his backpack away from him. When he would not release the backpack, she pushed Mr. Colpaert with two hands. [ 19 ] It is clear to me that the complainant believed that the backpack contained her keys and her sister's wedding band. I am left unsure why she formed that belief other than that perhaps, as Mr.

Colpaert testified, his backpack was with him everywhere he went, so she assumed the keys and the ring, or rings plural, were in the backpack. So, while the complainant denied striking Mr. Colpaert, she did admit that there was a lot of pushing. She also clarified, "there was no actual closed hand or whatever." [ 20 ] The complainant testified that Mr. Colpaert took bear spray out of his backpack. She also testified, as did Mr. Colpaert, that bear spray was in her home. She testified that Mr. Colpaert had possessed firearms since she had known him, an allegation Mr.

Colpaert denied. [ 21 ] The complainant stated that Mr. Colpaert made several threats on the roadside, including that he would spray her with bear spray if she did not leave him alone. She testified that the taxi drove away from them and towards the Black Rooster Inn & Apartments. Mr. Colpaert followed the taxi, and as he ran down the road towards the Black Rooster Inn & Apartments, she backed away because he had pulled out the can of bear spray. At that point, the complainant wanted to go home to get her phone and call the police. Moreover, as Mr.

Colpaert continued running away from her up the street towards the Black Rooster Inn & Apartments, she recalls him saying, "I have your shit," which she took to mean her keys, her sister's wedding ring, and her other rings. The Defendant's Evidence [ 22 ] Mr. Colpaert is 43 years of age. He laid the blame for everything on the complainant. He told a version of events to the court during his evidence that was in some respects in concert with the complainant's evidence but in others distinctly different. [ 23 ] Mr.

Colpaert told the court how earlier in the day on May 9, the complainant had called him, thanked him for cleaning the house and fixing the door to the residence, and that he had dropped the keys for her home off in the mailbox. He testified how he had taken a taxi to her house and that when he returned to the taxi, the complainant had come screaming up to the front of the taxi and parked about a foot and a half away from the front of the taxi.

He stated that the complainant began beating on the front window of the taxi, yelling things at him and the taxicab driver, such as, "He has warrants," and, "He's stealing my stuff." He said the complainant kept telling the

cab driver to "Call the police. Call the police. He's got warrants" as she was trying to grab his backpack. [ 24 ] He said, in self-defence, he slapped the complainant's hands away from him. He pushed her away because she was screaming. It was put to him in cross-examination that he pushed the complainant, which he denied. He further denied he had bear spray, made threats about the bear spray or did harm to the complainant. He claimed he still loved the complainant but that she was crazy. He admitted he had gotten her bear spray to protect herself and her son in October 2021.

He confirmed that the can of bear spray was red in colour, and the last time he saw it, it was inside the complainant's home. [ 25 ] He testified his interaction on the side of the street was "mostly defensive," and he distinctly remembered asking the complainant, "Why are you doing this to me? Why are you trying to ruin my life?" [ 26 ] Mr. Colpaert denied taking the wedding band, the other rings or anything else from the complainant's home. He denied making a mess of her home, and he told the court the last time he had seen the rings, they were on the counter in the house.

He also denied possessing any firearms while dating the complainant. He told the court how he loved the complainant's child. [ 27 ] Mr. Colpaert got out of the taxicab on the passenger side. He was confronted immediately by the complainant. She initiated a physical confrontation with Mr. Colpaert. Hand-slapping is a good way to put it. On the evidence that the complainant and Mr. Colpaert presented, it is clear that the complainant was the aggressor. The complainant's evidence is consistent with Mr.

Colpaert defending himself from the complainant, who was very upset and wanted to get her keys and her sister's wedding band from Mr. Colpaert. [ 28 ] While defending himself, Mr. Colpaert may have unintentionally struck the complainant in the neck. He may or may not have used one or both hands to push the complainant in the chest, leaving her with chest pain for a while. [ 29 ] Mr. Colpaert then got back into the taxi at the top of the hill. The taxi drove away, dropping him off on 4th Avenue West, where he went to his friend's residence and hid.

He hid from the police because he believed the complainant would be calling the police and telling them what had just happened. He was right. The complainant did phone the police and tell them her version of the events that had just happened. Taxi Driver's Evidence [ 30 ] Mr. Jose's evidence of the incident on the side of the road is that the complainant was very angry. She was mad, but he did not hear much of what the complainant was saying. He did not see any bear spray or hear Mr. Colpaert threaten the complainant. [ 31 ] Mr.

Jose testified that the complainant opened the taxi's rear driver's side door and pulled Mr. Colpaert out of the taxicab, which contradicts both the evidence of the complainant and Mr. Colpaert, both of whom stated that Mr. Colpaert exited the taxi through the rear back door on the passenger side. Not wanting to be in the middle of their fight, Mr. Jose drove away from the complainant and Mr. Colpaert and towards the Black Rooster Inn & Apartments. Mr. Jose parked on the road and watched the complainant and Mr. Colpaert through his side mirror. [ 32 ] I do not think anything turns on Mr.

Jose having which door Mr. Colpaert exited out of wrong, and I do not believe that the complainant pulled the much larger Mr. Colpaert out of the taxicab. May 10, 2022 Constable Doney's Evidence [ 33 ] At about 10:47 a.m. on May 10, 2022, the police received a report from an unidentified person that Mr. Colpaert was at 1210 8th Avenue East. The police surrounded the residence. Constable Doney described it as being like a SWAT operation. Constable Doney went to the rear door, announced, "Police," knocked again, and yelled out, "Police presence." The homeowner came to the door.

Constable Doney knew the homeowner from previous incidents at the house. The homeowner confirmed that Mr. Colpaert and other people were inside the house. He authorized the police to enter the house. [ 34 ] The police entered the house, calling out for Mr. Colpaert. The police dealt with several people throughout the house, but no one would say anything about where Mr. Colpaert was. Constable Doney had her pistol pulled. Constable Askey had his carbine rifle at the ready. [ 35 ] The police went downstairs to the basement, yelling, "Richard, come out." They did not locate Mr.

Colpaert. [ 36 ] The police officers then went upstairs. Constable Doney heard a noise in one of the bedrooms. Constable Askey and Constable Doney went into the bedroom. Constable Askey removed a bed, opened a closet door, and inside they saw Mr. Colpaert. They told him immediately, "Show hands." Police told Mr. Colpaert that he was under arrest. He was taken out of the closet into a hallway, where he went to his knees and lay on his stomach. Mr. Colpaert was cooperative with the police throughout. The police searched Mr. Colpaert but found no weapons or bear spray.

He was read his Charter rights and told why he was arrested. The police then transported Mr. Colpaert to cells. [ 37 ] The police discussed whether they should search the house, but given the time that had gone by since they received the complaint and being uncertain about where the backpack was, they elected not to get a warrant. Consequently, there was no search done of the house. Discussion Credibility and the W.(D.) Analysis [ 38 ] Since Mr. Colpaert testified in the present case, I have reviewed and followed the well-known instructions given by Justice Cory

in W.(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 evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [39] Furthermore, I have also considered Justice Riley's guidance at paragraph 21 and 22 in R. v. D.M.D., 2019 BCSC 1523, atparagraph 21: Thus, where there are two competing accounts of the events in question, one given by the complainant and then the other by the accused,it is not simply a matter of choosing which of the two is more believable.

It is imperative to approach the evidence in a case such as thiswith a firm understanding of the concept of proof beyond a reasonable doubt. The evidence must be assessed under the well-knownframework established in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. If I believe Mr. D's testimony, he must be acquitted.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 with areasonable 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. And then at paragraph 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. … citing R. v.Minuskin … Regardless of the order in which the evidence is analyzed, the judge must always have regard to the "basic principlesunderlying the W.(D.) instruction,": R. v.

Minuskin at para. 22. [40] 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. Then at paragraph 154: [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 whetherthat evidence 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.

[41] 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. Colpaert and the complainant.

As recently explained by Justice DeWitt-Van Oosten in R. v.Redden, 2021 BCCA 230, in 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. Thisdoes 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. [42] Finally, I have also noted Justice Holmes' caution in R. v. Adubofour-Poku, 2018 BCSC 78, at paragraph 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 the complainant'sevidence. 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 inparticular 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 ofthe appellant's statements to the police, the trial judge then applied a different level of scrutiny to the complainant's evidence as opposedto that 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". [43] I have considered Mr. Colpaert's evidence in the context of the other admissible evidence presented to the court during the trial.As such, I have not assessed Mr.

Colpaert's or the other witnesses' evidence in isolation, and I have been careful not to subject Mr.Colpaert's evidence to a stricter scrutiny standard than the complainant's or the other witnesses' evidence. Moreover, I have remindedmyself that an accused person is never required to prove their innocence or disprove any evidence led by the prosecution. [44] Because of the issues raised in the present case, I have also identified and kept in the forefront of my mind the two legal rulesconcerning impermissible reasoning relating to the plausibility of human behaviour as discussed in R. v.

J.C., 2021 ONCA 131: (1) the rule against ungrounded common-sense assumptions; and (2) the rule against stereotypical inferences. Similarly, I have instructed myself that I cannot use the complainant's lack of embellishment in her testimony to bolster her credibility, R.v. Gerrard, 2022 SCC 13. Self-Defence Claim by Mr. Colpaert [45] Mr. Colpaert 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 circumstances

of 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 forceand 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. [46] Last year, in R. v.

Khill, 2021 SCC 37, the Supreme Court of Canada rendered three separate opinions interpreting what theyreferred to as the "new" s. 34 of the Criminal Code. For our purposes, I only need to concern myself with Justice Martin's decisionwriting for the majority. As stated by Justice Martin in Khill at paragraph 1: [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. Then at paragraph 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 someone else;second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s.34(1)(c), the accused's act must be reasonable in the circumstances.

Section 34(2) sets out nine non-exhaustive factors that shall be takeninto account when considering if the accused's act was reasonable in the circumstances under s. 34(1)(c). [47] Although I will not quote in detail paragraphs 72 through 107 of Khill, I note that Justice Martin set out in paragraphs 72 to 107the correct

interpretation of the word "the person's role in the incident" from s. 34(2)(

c) of the Criminal Code. I adopt and apply JusticeMartin's

interpretation of "the person's role in the incident" in this judgment. [48] In light of the testimony of Mr. Colpaert and the complainant, which essentially confirms that the complainant initiated thephysical altercation between the two of them, Justice Martin's teachings in paragraph 89 at 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 theincident" in s. 34(2)(c), "a protection is hopefully present to prevent self-defence from becoming too ready a refuge for people whoinstigate violent encounters, but then seek to escape criminal liability when the encounter does not go as they hoped and they resort to useof a weapon." The law should encourage peaceful resolution of disputes. It should not condone the unnecessary escalation of conflicts. [49] Finally, Justice Martin's

summary of the current state of the law of self-defence found in paragraphs 123 and 124 of Khill isbeneficial:

[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 the situation", is measured against community standards, not against the accused's own peculiar moral code … Consensual Fight by Complainant's Testimony [ 50 ] In looking at the whole of the complainant's testimony, including during the cross-examination stage, it is clear that she initiated the physical contact between herself and Mr. Colpaert. It is clear that she was the aggressor and that Mr. Colpaert was taking steps to eliminate the aggression that he felt was coming from the complainant.

Based on the version of the fight provided by both the complainant and Mr. Colpaert, it would appear that it was an unprovoked attack by the complainant on Mr. Colpaert that then led to the physical altercation between them. [ 51 ] Mr. Colpaert's version of events is entirely consistent with the complainant's version of events as far as the physical altercation goes in the sense that there was the hitting of arms and pushing. Furthermore, from the complainant's evidence, it appears she had no desire to withdraw or stop the physical altercation. So, although Mr.

Colpaert denies pushing the complainant, based on the evidence as a whole, if there was a push, I cannot say that it was an aggressive act on the part of Mr. Colpaert. Likewise, suppose there was a slap to the neck of the complainant. In that case, I cannot say that it was a deliberate attempt to slap her on the neck as opposed to just a wayward hand or arm by Mr. Colpaert while trying to protect himself from the complainant's ongoing physical attack. [ 52 ] I cannot find on the totality of the evidence that Mr. Colpaert deliberately struck the complainant. The complainant testified, "We were pushing each other.

There were no blows to the face besides the one to my neck…I was pulling on his arm as he was trying to run." On cross-examination, defence counsel asked the complainant, "You were grabbing at his backpack, do you agree?" She replied, "Yes." Bear Spray, Rings, and 24 Carat Chains [ 53 ] I have a great suspicion, one might even say I have a belief on a balance of probabilities, that Mr. Colpaert helped himself to the bear spray and the rings out of the home, but I am unable to say on the whole of the evidence that I am convinced beyond a reasonable doubt that he had possession of bear spray or the rings.

The Taxi Driver [ 54 ] When the Crown concluded its case in chief, I was somewhat surprised that the Crown had not called the taxi driver as a witness. Having heard Mr. Jose's evidence, I now understand why the Crown did not call him. [ 55 ] Mr. Jose's evidence was neutral for the most part with the exception of corroborating both the evidence of the complainant and Mr. Colpaert that the complainant was very angry, in a rage, for lack of a better term, and that she initiated the contact between herself and Mr. Colpaert. I have not and cannot use Mr.

Jose's evidence to either confirm or deny the presence of the bear spray or threats made by Mr. Colpaert referencing bear spray. Conclusion [ 56 ] As explained by Justice Cromwell for a unanimous Supreme Court of Canada in paragraph 39 in R. v.

J.M.H. , 2011 SCC 45 : … the principle set out in Schuldt (and many other cases) is that a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt. [ 57 ] In the present case, I believe that the defence of self-defence is available to Mr. Colpaert. When I consider the totality of Mr.

Colpaert's relationship with the complainant, including the events leading up to May 9, 2022, the steps he took to defend himself on the side of the road on May 9, 2022, were reasonable. If there was a slap by Mr. Colpaert's hand on the complainant's neck or a push by Mr. Colpaert on the complainant's chest, I find that it was not a deliberate attempt by Mr. Colpaert to assault the complainant. Instead, it was in reaction to the assault on him. [ 58 ] I cannot find on the evidence, as I have indicated already, that the bear spray was present at the scene, that Mr.

Colpaert had possession of the bear spray, or that Mr. Colpaert possessed the rings. While, again, I have some suspicion, I cannot say beyond a reasonable doubt that I accept that Mr. Colpaert threatened the complainant's safety. It seems to me that both the complainant and Mr. Colpaert were very agitated at the time. One may have thought they heard something when, in fact, they did not.

Some five months later, I am uncertain of what was said and cannot find beyond a reasonable doubt that threats were made to the complainant's person. [ 59 ] Accordingly, on the totality of the evidence, I find as follows: - In relation to Count Number 1, the allegation that Mr. Colpaert committed the assault of P.L. and while doing so did carry, use, or

threatened the use of a weapon or an imitation weapon contrary to s. 267 (

a) of the Criminal Code , I find him not guilty; - In relation to Count Number 2, the allegation that he did assault P.L. contrary to s. 266 of the Criminal Code , I find him not guilty; - In relation to Count Number 3, the allegation that he did knowingly utter or convey a threat to P.L. to cause death or bodily harm to P.L. contrary to s. 264.1(1) (

a) of the Criminal Code , I find him not guilty; - In relation to Count Number 4, the allegation that he did carry or have in possession a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence contrary to s. 88(1) of the Criminal Code , I find him not guilty; - In relation to Count Number 5, the allegation that he committed theft of the property of P.L. of a value not in excess of $5,000 contrary to s. 334 (

b) of the Criminal Code , I find him not guilty; and - In relation to Count Number 6, an allegation that while being at large on a release order, he did fail to comply with a condition of the release order by being in possession of a weapon contrary to s. 145(5) (

a) of the Criminal Code , I find him not guilty. [ 60 ] That is my judgment. (REASONS FOR JUDGEMENT CONCLUDED)