R. v. M.A.S. Date:, 2013 BCPC 72

Citation: R. v. M.A.S. Date: 20130307 2013 BCPC 0072 File No: 32406-1-K Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M. A. S. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Counsel for the Crown: W. Mathers Counsel for the Defendant: B. Smith Place of Hearing: Anahim Lake , B.C. Date of Hearing: March 7, 2013 Date of Judgment: March 7, 2013 [ 1 ] THE COURT: M. A. S. is a 45-year-old woman and is charged with assaulting with a weapon, to wit: a knife, her then

common-law spouse J. L. S. on October 12, 2012, in Ms. S.'s home on or near the Anahim Reserve. The issue is whether Ms. S. inflicted the small, stab-like wound on Mr. S.'s left forearm, which was about one and a half inches wide and, Mr. S. estimates, about an inch deep, and the two cuts to his right arm, one approximately two inches, the other approximately three inches long, in self-defence. [ 2 ] Mr. S. testified that he and Ms. S. had been living in Ms. S.'s manufactured home in a common-law relationship. On October 11, 2012, they went mushroom picking and firewood collecting.

It is not clear if the two started drinking during their outing - Mr. S. says they maybe had a couple of beer - but they were certainly drinking when they got back home. Mr. S. estimates he drank about 10 cans of beer and six ounces of hard liquor. He estimates Ms. S. drank about eight beer and three ounces of hard liquor. He says they were both intoxicated. I find it may well have been much more hard liquor that was consumed given Mr.

S.'s evidence on cross that he had purchased a 40-ounce bottle of white rum and a 40-ounce bottle of Fireball whiskey and did not disagree with defence counsel that only a half-bottle of each was left. [ 3 ] The couple started arguing. Mr. S. agreed after being reminded that the argument was probably about the fact that he remained married to another woman. [ 4 ] He says they began yelling at one another. When asked whether he threatened Ms.

S. just prior to the stabbing, he said, "It is possible, but I don't believe so." The relevance of this is his poor memory, given the accused, who testified, said he did not verbally threaten her with violence. I will come back to this later. [ 5 ] Later in his direct testimony, when asked again whether he threatened Ms. S., he said, "I don't know. I was probably yelling incomprehensibly.

I don't really recall." Again, this relates primarily to his understandably not clear memory given the amount of alcohol that was consumed. [ 6 ] When asked whether, just prior to going into the kitchen to get the kitchen knife that Mr. S. was wounded with, Ms. S. was trying to get out of the door of the manufactured home, Mr. S. said, "Yeah, she was playing with the lock. I don't know why." [ 7 ] Mr. S. agreed that the relationship had been a stormy one. He agreed there was a previous incident where he broke the driver's side window of a vehicle Ms.

S. was trying to leave in, but says that it was an accident, and that he was just trying to bang on the driver's side door. When asked why he was banging on the driver's side door, he said he was not really sure. [ 8 ] He agreed that the window incident had occurred after a previous incident where he had assaulted Ms. S. and, in the process, broke her nose. He also agreed he had been convicted of assault in Prince George in 2002. Mr.

S. is a big man, standing six-foot-one and weighing 215 pounds. [ 9 ] He confirmed, on cross-examination, information that he had provided in his statement to the police that included the following, and I pause here to note that I am paraphrasing this information. He stated that he thought the accused was afraid of him. He stated this is because he thinks he intimidates her and can be physically oppressive and dominant. He also says that he is kind of a bully and stands up over her. When asked in his statement whether that occurred that night, he said, "No, I don't think so. No.

No, I'm not really sure either." [ 10 ] He confirmed saying in his statement that he had thought the accused was trying to get out because of his verbal abuse. He also confirmed saying in his statement at line 43, and I pause here to note that I may not have gotten this perfectly accurately but recorded his statement as follows: "I think she decided to try and get out but defend herself because like I say, we do have a history." [ 11 ] He says he saw that she grabbed a knife and that was when he went towards her. His version is that he approached her as she was swinging the knife back and forth.

He was asked on cross-examination the following: Q: She was waving the knife like this -- -- and I note that defence counsel demonstrated a back-and-forth and side-to-side action -- -- and you did not like that and came toward her? A: Yes. My thought was to take away the knife, and I was struck. [ 12 ] I do find Mr. S. to be a forthright witness who was testifying as he recalled events. However, he did answer several questions by saying "I don't recall that" or by qualifying that things were kind of blurry. For example, when it was put to him that Ms.

S. had said she was leaving the residence to call the police to have him removed and that is why she went originally to the door of the residence, he said, "I don't recall that." [ 13 ] Ms. S., I find, gave straightforward and consistent testimony. She agrees they were intoxicated, arguing about Mr. S. still being married, and that by the time she went to the door, that she was hollering. She says she went to the door because she had told Mr. S. to leave and that she wanted him out because he was still married.

Although she says she was not physically touched or threatened with violence up to that point, she does say Mr. S. told her, "The only one leaving is you." In response to this, she says she told him she was going to call the police to get him out, and she went to the door; however, she was fumbling with the door and could not get it unlocked. [ 14 ] She testified that she has lupus, takes medication for it, and as a result of the lupus has brittle bones and cannot do very much with her hands. She says she fumbles. On this point, Mr.

S. says he was aware that she had lupus and had a hip replacement and could be properly described as fragile. [ 15 ] Ms. S. says as she was at the door, Mr. S. came towards her so she ran into the kitchen and grabbed a knife. She says she did this because "his attitude changed. His face changed. He was all red, mad." When asked whether she had seen that look before on Mr.

S., Ms. S. said, "Yes, when he broke my nose and knocked me out." [16] She testified that she thought it was necessary to grab a knife because she thought he was coming after her and was going to hurther and she wanted him to stay away from her. She said she just swung the knife back and forth, demonstrating with her right hand aside-to-side motion. She said she did not try to stab or slash Mr. S. but that he got cut when he came towards her to try to take the knifeaway. She said she thought she was in danger.

After realizing he was cut, she got him a tea towel and ran to the neighbour's to call foran ambulance. [17] The 9-1-1 call was admitted into evidence, and I put some weight on the accused's comments that were recorded in the 9-1-1transcript given that although it could be viewed as buttressing to some degree, can properly be considered part of the res gestae, whichcan be interpreted as ‘the thing that happened’. In that case, she said several times statements to the effect that she swung the knife tokeep him away, that Mr.

S. had been coming after her and was going to attack her, that he said he was going to throw her out of thetrailer, and that she did not mean to cut him. [18] I find Ms. S. to be a consistent witness whose testimony is credible. In coming to this conclusion, I am guided by the casereferred to by Crown in his able submissions, that being the decision of O'Halloran J. in the case of Faryna v. Chorny, (BC CA), [1951] 4 W.W.R. 171 (B.C.C.A.).

I note that that case is a civil case with a different standard of proof applicable; however,O'Halloran's comments capture the considerations that arise in assessing credibility in criminal cases as well. At page 174, he said: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [19] In Ms. S.'s case, although the Crown's theory that the accused was so mad that she went to get a knife and then approached thecomplainant and stabbed him in the arm with the two subsequent slashes occurring when the complainant struggled with her for theknife, it is not unreasonable. This case was properly brought before the courts.

However, it seems to me that Ms. S.'s version of whathappened is more in harmony with the preponderance of probabilities at play. Of course, it is not necessary that I decide in a criminalproceeding whose testimony I prefer. It is enough if the testimony of the accused raises a reasonable doubt, and in this case, I find that itdoes. [20] In this case, I am left with a doubt as to whether the accused had any intent to harm the complainant. She grabbed the knife fordefence, but she says she did not intend to use it.

The complainant says it was he that moved into the accused's range of defensive,deterrent, back-and-forth motions and consequently got cut.

I am left with a doubt as to whether the accused had the intent to assault. [21] Even if I am wrong in this conclusion and that the proper conclusion is that because of the accused's belief that the complainantwas coming at her to cause her harm and she therefore purposefully slashed him, I find that her belief that she would be harmed by thecomplainant was reasonably held given his previous violence and domineering, bullying behaviour towards her and, further, that giventhe difference in size, strength, and the fact that she is properly described as frail due to her lupus, her response in swinging the knifeback and forth was a proportional response. [22] I find that self-defence is made out in these circumstances, and that said, I also note that the burden of proving beyond areasonable doubt that self-defence is not made out lays with the Crown, and for that statement, I rely on R. v.

Cinous, 2002 SCC 29. [23] So Ms. S., I acquit you of the charge of assault with a weapon. That is everything. You are free to go. ________________________________ R. D. Morgan Provincial Court Judge