R. v. Billyboy Date:, 2016 BCPC 405

Citation: R. v. Billyboy Date: 20161130 2016 BCPC 405 File No: 34196-1-K Registry: Willaims Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PAULINUS PAUL PIERRE BILLYBOY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: C. Los Counsel for the Defendant: A. Kaiser Place of Hearing: Williams Lake , B.C. Dates of Hearing: November 7 & 8, 2016 Date of Judgment: November 30, 2016

INTRODUCTION [ 1 ] The accused, Paulinus Paul Pierre Billyboy, is charged with (

a) assault causing bodily harm to R.A.S. contrary to s. 267 (

b) of the Criminal Code ; (

b) assault with a weapon against R.A.S., contrary to s. 267(

a) Criminal Code ; (

c) uttering threats to R.A.S. contrary to s. 264.1(1) (

a) of the Criminal Code ; and (

d) escape from lawful custody contrary to s.145(1) (

a) of the Criminal Code . All of these offences are alleged to have occurred on April 4, 2016, in and about Mr. Billyboy and Ms. S’. residence at [omitted for publication], Williams Lake, B.C. [ 2 ] Mr. Billyboy and Ms. S. had been living together in a common-law relationship for the past five years. They have three children, a son, P., now five years old, and daughters M. and C., who are four and eight months respectively. On April 4, 2016, Mr. Billyboy and Ms. S. lived in a three-story townhouse in [omitted for publication] which they shared with their three children, Ms. S.’ ten year old daughter J., and Ms.

S.’ 16 year old younger brother. [ 3 ] Ms. S. says that on April 4, 2016, Mr. Billyboy attacked her both inside and outside their residence. While outside, Mr. Billyboy punched her repeatedly; while inside, Mr. Billyboy choked her, punched her, and threatened to kill her and the children while brandishing a knife. All this violence occurred in the presence of C. and in the relative proximity of P. and M. [ 4 ] R.B. and P.B. witnessed fragments of the outside altercation while it was ongoing. Ms. B. called 911 and reported the incident. The police arrived at the scene and arrested Mr. Billyboy.

Before he could be taken back to the RCMP detachment, Mr. Billyboy fled and was quickly recaptured. [ 5 ] To prove the offence of assault causing bodily harm, I must find that Mr. Billyboy struck Ms. S. with such force that she suffered injuries of more than a trifling nature. I must also find that Mr. Billyboy ought to have known that his assault could injure her. To prove assault with a weapon, I must find Mr. Billyboy used a knife to commit the assault. To prove the offence uttering threats, I must find Mr. Billyboy said words to Ms.

S. which any reasonable person would consider a threat to cause death or serious bodily harm. I must also find Mr. Billyboy said these words to intimidate Ms. S. or with the intention she take them seriously. [ 6 ] In order to prove escape from lawful custody, I must find that Mr. Billyboy was under lawful arrest at the time he fled from the officers. ISSUES [ 7 ] The overarching issue in this case with respect to the offences against Ms. S. is whether I believe her version of events, in whole or in part. As Mr. Billyboy did not call a defence, my findings with respect to Ms.

S.’ credibility will largely determine Mr. Billyboy’s culpability for the offences of assault causing bodily harm, assault with a weapon and uttering threats. [ 8 ] If I do accept that Mr. Billyboy assaulted Ms. S., I must then determine what injuries she sustained as a result of the assault and whether those injuries were sufficiently serious to constitute bodily harm. [ 9 ] Finally, I must determine whether Mr. Billyboy’s actions in running away from the police on April 4, 2016, was an escape from lawful custody. [ 10 ] Mr. Kaiser, on Mr. Billyboy’s behalf, admitted identity. Ms.

S.’s evidence [ 11 ] On the morning of April 4, 2016, Ms. S. was at home with P., M. and C. The older children were at school. Mr. Billyboy had been downtown early in the day. He returned around noon in a “grumpy mood” so Ms. S. decided to give him “space.” Mr. Billyboy went down into the basement where Ms. S. thought he might have been cleaning up or folding laundry. Ms. S. remained upstairs caring for the children and feeding C. [ 12 ] Approximately one hour after Mr. Billyboy had returned home, Ms. S. went down to the basement to search for the children’s socks in the laundry. Ms. S. found Mr.

Billyboy sitting on the dryer listening to music through his headphones. She saw a half mickey of Silent Sam vodka on the shelf near where he was perched. She surmised he had been drinking. Ms. S. was carrying two-month old C. at the time. She decided to take the children out because Mr. Billyboy was intoxicated and when intoxicated, he is not himself. Ms. S. had lived with Mr. Billyboy for five years, but has known him almost all her life. She says that when he is drinking, Mr. Billyboy becomes a different person. She says, “it is like he is not there anymore . . . I don’t think he knows what he is doing.

He does not see any consequences of his actions. Nothing I say will go through. I don’t try to speak to him. . . Sometimes he is really happy, but I don’t know how long it will last because he can switch very quickly for no reason. He switches into a very angry person.” [ 13 ] As she sorted through the socks, Mr. Billyboy took off his earphones and accused her of “egging him on.” Ms. S. believed that just watching her retrieve the children’s belongings aggravated him. She did not want to argue so she went upstairs. She could hear Mr. Billyboy running up the stairs behind her.

She became frightened and ran outside to get away from him. She was still carrying C. Ms. S says she wanted to get away, but hesitated because P. and M. were still inside the house. She tripped and fell onto her back on the lawn in front of the neighbouring townhouse unit. Mr. Billyboy was right behind her when she fell. [ 14 ] Ms. S. says that while she was on her back on the grass, Mr. Billyboy knelt over top of her. He grabbed her hair with one hand and with the other he grabbed C. by her pyjamas and dropped her to the ground. While still hanging onto her hair, Mr. Billyboy struck Ms.

S. on the side of her head, continuously. [ 15 ] At some point, Ms. S. was able to flip over off her back and rescue C. While she was clutching C., Mr. Billyboy began to drag Ms. S. back into the house. Ms. S. saw a man walking by and screamed at him to call the police.

[ 16 ] Mr. Billyboy dragged Ms. S. into the hallway of their house on the way to the living room. He closed and locked the door. Once inside, Mr. Billyboy began hitting and choking her until she could not breath. Ms. S. was sitting against the wall in the hallway near the staircase. She slid down the wall onto her back. Mr. Billyboy kept telling her to be quiet. He grabbed C. and told Ms. S. to get up, but she was too dizzy and unable to stand. [ 17 ] Ms. S. believes at that point, Mr. Billyboy felt badly. He picked her and C. up and placed them on the bed in the living room. Once he had carried Ms.

S. and C. to the bed, Mr. Billyboy resumed hitting Ms. S. again, hard, with his fists. Ms. S. said he kept just missing C. She became scared for C. and put her on the bed beside her so she would not get hurt. While Mr. Billyboy was hitting her C. fell off the bed and lay face down on the floor. C. lay there, not crying or moving. [ 18 ] The police arrived. Mr. Billyboy got up and went into the kitchen. In his absence, Ms. S. retrieved C. from the floor. When he returned Mr. Billyboy had a 12 inch knife (inclusive of blade and handle), which he had wrapped in a pink hand towel.

He pointed the knife within an inch of Ms. S.’ face. He was very angry. He threatened her that if the cops came or she made any noise he would stab her and C. and hang the other children. Mr. Billyboy repeated threats to kill Ms. S. and the children, over and over. She couldn’t say or do anything to calm him down. She begged him to let them go; she thought she was going to die. [ 19 ] At this point, Ms. S. could hear the police knocking on the door. Mr. Billyboy told her to go upstairs and keep the children quiet. Holding C. close on her chest, Ms.

S. went upstairs to P.’s bedroom where he and M. had been during this altercation. Ms. S. could hear Mr. Billyboy yelling out the window to the police. He was in J.’s bedroom, which was also upstairs next to P.’s bedroom. Ms. S. could hear what Mr. Billyboy was saying to the police, but she could not hear what the officers were saying to Mr. Billyboy. She heard Mr. Billyboy asked the police if they had a warrant. Ms. S. also heard him say that she didn’t want to come to the door. Mr. Billyboy’s yelling to the police from J.’s window went on for about two minutes. During this time, Ms.

S. was about ten feet away in P.’s bedroom trying to keep the children quiet as Mr. Billyboy had directed. She was scared. She didn’t know what he would do. She was worried that he would harm her and the children. Although the police had arrived, the door was still locked. [ 20 ] Ms. S. said that although Mr. Billyboy was yelling out the window to the police, he did not do so angrily, not in the way he had been speaking to her moments before. After about two minutes, Mr. Billyboy went and opened the door for the police. [ 21 ] I will discuss my assessment of Ms.

S.’ credibility and reliability later in my decision. R.B.’s evidence [ 22 ] R.B. is a 29 year old resident of Williams Lake. She witnessed much of the altercation between Mr. Billyboy and Ms. S. which occurred outside their residence. [ 23 ] Shortly before 1 p.m. on April 4, 2016, Ms. B. was waiting for her 12:57 p.m. bus to take her to work. She was across the street from [omitted for publication] Drive, less than one half block away from Ms. S. and Mr. Billyboy’s residence. [ 24 ] Ms. B. was wearing headphones when she heard a woman’s startling “scary loud” scream. She removed her headphones. Ms.

B. heard a woman screaming and swearing and saying she hated someone and that she was going to call the cops. [ 25 ] Ms. B. could not see who was doing the screaming, so she walked up [omitted for publication] Drive towards [omitted for publication] and the source of the screaming. She stopped at a point directly across the street from [omitted for publication]. From approximately 100 meters away, Ms. B. saw a young First Nations woman standing in front of the open doorway to [omitted for publication], screaming. [ 26 ] The woman went back into the house and emerged a couple of minutes later. She carried what Ms.

B. surmised was a baby. A young First Nations man followed her out. The woman was swearing and screaming at him to get away from her. She said she “f…ing hated him”. Ms. B. saw the man walk towards the woman who started screaming even louder. It appeared to Ms. B. as though the woman was trying to get away from the man. The woman walked to the left of the unit onto the neighbour’s lawn. [ 27 ] Although Ms. B. was watching this altercation as it was ongoing, her line of sight was obstructed by vehicles in the [omitted for publication] parking lot. Ms.

B. could not see how it happened, but all of the sudden the woman she was watching was on her back on the grass. The woman was standing and then she wasn’t standing. She did not see the woman fall or what caused her to fall. After the woman was horizontal on the grass, all Ms. B. could see were her head and shoulders. The rest of her body was obscured behind a parked vehicle. [ 28 ] Ms. B. then saw the man standing over the woman. He was swinging his hands downward toward the woman in a punching motion. Because of obstructions, Ms. B. could not see if the man actually made contact with the woman.

She could not see if his hand was closed in a fist or open as in a slap. To her it appeared as though the man was hitting the woman in a manner intended to hurt her. As the man was swinging his hands, she heard the woman scream he was going to kill her baby. At this point Ms. B. could not see if the woman was kneeling or lying down. The woman kept screaming and swearing and the baby was crying. [ 29 ] Ms. B. saw the man grab the woman’s shirt or hair and try to pick her up off the ground. He was yelling at her to get inside. Ms.

B. also saw the woman turning away from the man and hunched over like she was trying to protect whatever she was holding. Ms. B. assumed the woman was holding a baby because she heard a baby crying and she heard the woman screaming at the man that he was going to kill her baby. She saw the woman hold what she believed to be the baby tight against her chest. She did not see the man grab the baby or throw the baby to the ground. [ 30 ] Ms. B. saw the woman stand up and face Unit [omitted for publication]. The man was behind her, pushing her back to the unit, telling her to shut up.

The woman was crying and telling him to leave her alone. She wasn’t fighting back. It looked to Ms. B. as though the woman was trying to get away from the man. [ 31 ] Ms. B. called 911 and reported the incident. She waited until the police arrived and saw them pull the police vehicle into the

unit from where she saw the man and woman emerge and return. She also saw the officers go inside the apartment. [ 32 ] Ms. B. said that other persons were around at the time of the altercation. One man was mowing his lawn across street and another vehicle pulled up and its driver went inside the end unit. Credibility and Reliability of R.B. [ 33 ] I find Ms. B. is an independent witness who was attempting to be truthful and had no motive to lie about the matters to which she testified. She did not know Ms. S. or Mr. Billyboy. Also, for the most part, her evidence is reliable.

She was in sufficient proximity to the scene she so could hear and see much of what transpired. She was forthright about what she could see given her partly obstructed view. My only hesitation with Ms. B.’ evidence is her suggestion that she was able to see Ms. S. hold C. for the duration of the altercation because while Ms. S. was lying horizontal on the ground, Ms. B. could only see her head and shoulders. P.B.’s evidence [ 34 ] P.B. is a 19 year old resident of Williams Lake. On the morning of April 4, 2016, she was at her boyfriend’s apartment at [omitted for publication] Avenue, Williams Lake B.C.

The apartment complex was across the road from [omitted for publication]. From Apartment 306, Ms. Brioni was able to see [omitted for publication] from the apartment window. She estimates it was likely 150 meters or more from the Unit [omitted for publication]. [ 35 ] In the late morning of April 4, 2016, Ms. B. was drawn to the window by screaming emanating from [omitted for publication]. She looked out the window and saw a dark coloured man dragging a dark coloured woman. Using Exhibit 1, which is a photograph of the [omitted for publication] complex, Ms.

B. identified the location of the altercation as three doors down from the right hand side of the [omitted for publication] complex containing Unit [omitted for publication]. [ 36 ] The window from which Ms. B. was viewing the altercation was open, without a screen. Her view was unobstructed. She said the man and woman were screaming back and forth at one another. The woman called out to the man that she was going to tell the Landlord something. He told her to get back into the house. Ms.

B. said, “She was yelling stuff and he was yelling stuff.” She saw the woman drop to the ground and the man trying to drag her. The woman was calling for help and crying “my baby, my baby, you are going to hurt my baby.” Ms. B. did not see a baby in the woman’s arms. She believes she was too far away to see whether the woman had a baby in her arms or was perhaps pregnant. Ms. B. did watch the man drag the woman into Unit [omitted for publication] of [omitted for publication]. Ms. B. went down to the parking lot to try and assist, but by the time she arrived, the man and woman were no longer outside. Ms.

B. believed this arguing and screaming went on continuously for ten minutes. The woman was screaming louder than the man, who she described as sounding very aggressive. She said the woman did not sound aggressive, more firm. She does not see anyone being hit. She just saw the woman being dragged into Unit [omitted for publication]. [ 37 ] Ms. B. did see the police arrive a few moments later. She saw two officers knocking on the door. No one answered the door and one of the officers went around to the back of the complex. Ms.

B. says the officers tried for 5 to 10 minutes to knock on the front door of Unit [omitted for publication], but there was no response. Eventually a window on the second floor of Unit [omitted for publication] opened. Ms. B. identified the window as that which had Ms. S. had referred to earlier as J.’s bedroom. [ 38 ] Because there were some big trucks going by on the street outside, Ms.

B. could not hear what everyone was saying, but she did see the man yelling down to the officers and the officers yelling up at him. [ 39 ] After approximately five minutes of the officers and the man yelling back and forth, the front door of Unit [omitted for publication] opened and two men came out. Ms. B. saw the officers escort one man into the police vehicle and the other standing there speaking to the officer. P.B.’s credibility and reliability [ 40 ] Ms. B. was an independent witness who had no reason to be untruthful.

I have no concerns about her credibility, but I do have concerns about the reliability of some of her evidence. She was observing the events in a third story apartment some distance away on [omitted for publication] Avenue. She could not make out if Ms. S. was carrying a baby or pregnant. Ms. B. was also clearly wrong about there being two suspects. I accept her confusion arose from the officer moving Mr. Billyboy from Constable Stewart’s vehicle to Constable Kooger’s vehicle. Also, I find Ms. B.’s time estimates were mostly inaccurate.

For example, I do not accept the officers knocked on the door of Unit [omitted for publication] for 10 minutes. Is Ms. S. credible? [ 41 ] Mr. Kaiser argues that Ms. S. is not a credible witness because portions of her evidence are either unbelievable or externally inconsistent with her prior out-of-court statement to the police or the evidence of independent eye witnesses. He says her evidence is so flawed I should not accept anything she says which is not otherwise corroborated by others. I will address those issues in turn as well as any concerns I have with Ms. S.’ evidence. [ 42 ] Ms.

S. insisted that while she was on her back in the grass outside, Mr. Billyboy grabbed C. off her chest by her pyjamas and dropped C. to the ground. Mr. Kaiser argues this evidence is contradicted by Ms. B. who says she did not see Mr. Billyboy grab or throw C. Ms. B. believed Ms. S. held C. tightly the entire time she saw her. [ 43 ] This incident occurred while Ms. S. was horizontal on the ground on her back. At this time, Ms. B. could only see Ms. S.’ head and shoulders because the rest of her body was concealed behind a parked car. Because of her obstructed view, Ms. B. could not see if Mr.

Billyboy actually landed any blows on Ms. S. By the time she had moved from her back to a position where Ms. B. could see her torso, Ms. S. had retrieved C. from the ground. I find it is entirely possible that Mr. Billyboy took C. from Ms. S. and either dropped or placed her on the ground.

[ 44 ] Ms. S. was never challenged in cross-examination as to whether Mr. Billyboy had taken C. from her. She was challenged on whether Mr. Billyboy had placed C. on the ground rather than dropped her on the ground. In this regard her evidence was unshaken in cross-examination. As Mr. Billyboy is not charged with any offence with respect to C., I do not have to decide whether he dropped or placed C. on the ground. I do, however, accept Ms. S.’ evidence that in some fashion Mr.

Billyboy removed C. from her arms and that she later retrieved C. from the ground. [ 45 ] I find her account of C. rolling off the bed in the living room enhances Ms. S.’ credibility. Ms. S. does not blame Mr. Billyboy for C. falling off the bed beyond the fact that he created the circumstances where this could happen. When asked, she specifically denied Mr. Billyboy hit C. or tried to hit C. [ 46 ] Mr. Kaiser says Ms. S.’ evidence that C. did not cry when she was dropped or fell is unbelievable. Ms. S. said that when Mr. Billyboy dropped C. to the ground C. did not cry, she did not move.

She reacted similarly when she fell off the bed in the living room. Ms. S. thought C. might have been in shock. I am not prepared to take judicial notice of whether a baby would cry in such circumstances. Clearly, C. cried at some point during the altercation outside because Ms. B. heard a baby crying. In assessing Ms. S.’ credibility in this regard, I cannot conceive of any reason for her to fabricate this evidence. Moreover I accepted as genuine Ms. S.’ distress for C. who ended up on the ground and then on the floor in this altercation. [ 47 ] Mr. Kaiser points to the discrepancy between what Ms.

S. said in her prior statement to the police about how many times Mr. Billyboy hit her outside and what she said in trial. In her statement to the police, Ms. S. said Mr. Billyboy hit her a couple of times. This accords with Ms. B.’ evidence. At trial, Ms. S. said while outside Mr. Billyboy hit her continuously, at least five times. [ 48 ] I accept that Ms. S. changed her evidence about how many times Mr. Billyboy hit her outside. Still, she was never challenged about whether he hit her at all. In any event, the fact that Mr. Billyboy hit her and dragged is corroborated by the evidence of Ms. B. and Ms.

B. and Ms. S.’ injuries. [ 49 ] I note that Ms. S. downplayed her own inflammatory conduct in the prelude to the assaults. For example, Ms. S.’ evidence she tried to give Mr. Billyboy space and there was nothing she could do to calm him was contradicted by Ms. B. and Ms. B.’s testimony that Ms. S. was screaming and swearing and arguing. Having said that, I do not suggest that somehow Ms. S. brought the violence on herself because she was arguing with and swearing at Mr. Billyboy. [ 50 ] Although there were no eye witnesses to the events which transpired inside the residence, much of Ms.

S.’ evidence went unchallenged and unanswered, including her evidence that:

a) Mr. Billyboy bit her in the arm;

b) Mr. Billyboy hit her and choked her in the hallway;

c) Mr. Billyboy carried her and C. to the bed in the living room; and

d) Mr. Billyboy resumed hitting her while she was on the bed in the living room and C. fell off the bed onto the floor during this altercation. [ 51 ] Initially I wondered at the disconnect between Mr. Billyboy carrying Ms. S. and C. to the living room bed when Ms. S. could no longer stand and then resuming pummelling her. This seemingly inconsistent behaviour is understandable in light of Ms. S. uncontested evidence that when he was drinking, Mr. Billyboy moods became instantly changeable. [ 52 ] Much of Ms. S. evidence as to what happened after the police arrived was also uncontested, including:

a) Mr. Billyboy threatened to kill her and the children;

b) while making these threats, Mr. Billyboy was pointing a knife at within inches of Ms. S.’ face; and

c) when the officers arrived Mr. Billyboy directed Ms. S. to go upstairs and keep the children quiet. [ 53 ] In assessing the veracity of Ms. S.’ evidence of Mr. Billyboy’s threats with the knife, I have taken into consideration the following evidence which confirms that Ms. S. wanted the police to rescue her from the situation and Mr. Billyboy did not:

a) During the altercation outside the residence, Ms. S. screamed at a man who was walking by to call the police. Her evidence is corroborated by Ms. B. who saw someone arrive in the parking lot while the altercation was ongoing and saw Mr. Billyboy forcing Ms. S. back into their residence while telling her to shut up.

b) When police arrived Mr. Billyboy did not want to allow them into the residence. Nobody answered the door when they knocked loudly. Mr. Billyboy asked if they had a warrant and only went downstairs and opened the door when Cst. Stewart said he didn’t need a warrant and would kick the door down if Mr. Billyboy did not open the door. The fact Officer Stewart made this threat and Officer Kooger went to the back of the Unit searching for a back door indicates to me the police could not enter the front door upon their arrival because it was locked. The evidence is clear that Mr. Billyboy did not want the police involved.

c) Officer Stewart said that although he was at the residence until the ambulance arrived, he could not take a statement from Ms. S. at the time because she was hysterical. [ 54 ] Mr. Kaiser cites as another example of Ms. S. being untruthful or inaccurate was her claim to have overheard Mr Billyboy telling Officer Stewart she did not want to come to the door. In this regard, I prefer Ms. S. evidence to that of Officer Stewart. I make the same finding with respect to whether Mr. Billyboy was intoxicated. Ms. S. who has known Mr. Billyboy most of her life says he was intoxicated.

Constable Stewart, who had met him for the first time, did not consider Mr. Billyboy intoxicated. In reaching these

conclusions, I made the obvious inference the events of April 4, 2016, would be far more memorable to Ms. S. than to the police officers. Also, I find somewhat troubling an absence of investigatory vigilance in this case. For example:

a) Constable Stewart was dispatched to a 911 call by an eye witness to a serious assault. I understand from Constable Kooger the police received two 911 calls. Although I have no evidence before me of the substance of these complaints, Constable Stewart arrested Mr. Billyboy for assault and uttering threats immediately upon him opening the door. I assume from these actions that Constable Stewart must have received information giving him cause to make the arrest;

b) When Constable Stewart arrived, Mr. Billyboy would not allow the police entry. At that time he could hear Ms. S. crying in the background; c. Notwithstanding the apparent seriousness of the charges, Constable Stewart did not place Mr. Billyboy in handcuffs; d. Although he was in the residence between 45 minutes to an hour waiting for Ministry of Child and family Services’ representative to arrive, Constable Stewart did not take one photograph of the crime scene. He had no memory of there being a bed in the living room which was where Ms. S. said she and C. were located when Mr.

Billyboy threatened her with a knife; e. Constable Stewart interviewed Ms. S. at about 3:20 p.m. on April 4, 2016, while she was still at the hospital dealing with her injuries and the Ministry of Child and family Services. Neither he nor any other officer re-interviewed Ms. S. her after she was released at a time and place when I would think she would likely have been calmer and more focused; f. The police took no comprehensive photographs of Ms. S.’ injuries; g. Neither Constable Stewart nor any officer seized the knife which presumably was still in the residence and available.

In fact, no officer even took a photograph of the knife or the hand towel Ms. S. described were used in the assault. Is Ms. S. credible and reliable? [ 55 ] Ms. S. was recounting events from the perspective of a terrified woman being attacked in a storm of violence. I would not expect her evidence to mirror that of a disinterested witness observing the events from afar. It goes without saying that sometimes she would have a better perspective as to events as they unfolded and in others she would be disoriented by the pain and chaos. Viewing her evidence as a whole I find Ms.

S. to be a reasonably credible and reliable witness. The fact that she may have embellished the number of times Mr. Billyboy hit her while she was outside or neutralized her own conduct does not leave me with a doubt the incidents occurred more or less as Ms. S. described them. Did Mr. Billyboy assault and threaten Ms. S.? [ 56 ] An assault causing bodily harm under s. 267 (

b) and assault with a weapon under s. 267 (

a) are at their core, assaults They incorporates the definition of assault set out in s. 265 of the Criminal Code , the relevant portions of which are as follows : 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; [ 57 ] I find the Crown has proven beyond a reasonable doubt that Mr. Billyboy assaulted Ms. S. on April 4, 2016, in that he intentionally applied force to her, that she did not consent to that force Mr. Billyboy applied and he knew she did not consent to the force he applied. The force Mr. Billyboy applied to Ms. S. consisted of his striking, dragging, biting, punching and choking her.

He did so intentionally while she tried to get away from him, while she begged him to leave her alone, while she screamed for help. [ 58 ] I also find the Crown has proven beyond a reasonable doubt that Mr. Billyboy threatened to stab and kill Ms. S. while holding a knife close to her face. In the circumstances, I find that Mr. Billyboy intended Ms. S. to take his threats seriously. [ 59 ] I do not find that Mr. Billyboy was armed with the knife while physically assaulting Ms. S. I gleaned from Ms. S.’ evidence that Mr. Billyboy stopped the physical assaults when the police arrived.

He then went to the kitchen and returned with the knife which he brandished while threatening to stab or kill her if she did anything to involve them. Did Mr. Billyboy cause Ms. S. bodily harm? [ 60 ] After they came inside Unit [omitted for publication] , the police brought Ms. S. downstairs to the bed in the living room. She said they separated her from the other children. The paramedics arrived and examined C. and then Ms. S. They placed her on a stretcher and transported Ms. S. and C. to the hospital by ambulance. P. and M. remained behind with the police. [ 61 ] Constable Stewart remained with Ms.

S. until the ambulance paramedics arrived. He took some photographs of Ms. S.’ injuries, which were admitted into evidence as Exhibits 2 and 3. [ 62 ] After released from the hospital, Ms. S. and the children went to the Chiwid women’s shelter. While in the shelter Ms. S. experienced problems with her ribs for which she sought treatment. These problems became acute two months later. While placing C. in her car seat, she felt and heard a cracking or snapping of her ribs. She went to the hospital, where she was x-rayed and learned she had

two broken ribs. Ms. S. believes her ribs were broken during Mr. Billyboy’s assault on April 4, 2016. She had suffered no traumasubsequent to the assault to account for the broken ribs. Although the doctor had examined her thoroughly on April 4, 2016, Ms. S.believes he may have overlooked the broken ribs. At the time she was being examined on April 4, 2016, Ms.

S. said she was sufferingmuch greater pain from her other injuries, and while at the same time she was trying to deal with the doctor, she was also having to dealwith the police and social workers. [63] The photographs the Crown put into evidence indicate that Ms. S. also had a black eye, but she says this was the result of anargument two weeks earlier. She did not say who caused the black eye. All her injuries except for the broken ribs healed within twoweeks. [64] The only photographs the police took of Ms. S. injuries were two of her face and neck while she was a stretcher in theambulance.

There was no evidence before me to indicate that any attempt was made to follow-up with Ms. S. after April 4, 2016. [65] I accept Ms. S. did suffer broken ribs, but I do not find there to be sufficient evidence Mr. Billyboy caused this injury during theevents of April 4, 2016. [66] Sections 2 and 267(

b) of the Criminal Code define bodily harm to mean any hurt or injury to a person that interferes with thehealth or comfort of the person and that is more than merely transient or trifling in nature. I am guided by the case of R. v. Rackham,2012 BCPC 476 , in which Judge Giardini considers the judicial

interpretation of “bodily harm” and states: [20] I am going to review the law referred to R. v. Dixon, which is a 1988 case of our Court of Appeal. Carrothers J.A. gave adefinition of bodily harm. The issue in that case was whether bodily harm had been caused. The victim had suffered bruises to her armand head and a laceration two or three inches in length on the back of her head. The wound took some 10 days to heal. She was allbetter within the matter of a month. [21] Mr. Justice Carrothers said the trial judge, having found those facts, had to apply the Code's definition of bodily harm.

He saidthat required the judge: . . . to decide whether the hurt or injury interfered with the victim's health or comfort and whether it was more than merelytransient or trifling in nature. I leave aside the question whether there was interference with health because, if there was interference withcomfort, that is enough. Transient, trifling and comfort are all words in common usage. [22] There is also the case R. v. Moquin, 2010 MBCA 22 , [2010] M.J. No. 46, Manitoba Court of Appeal.

In that case, thecourt said: Although a functional impairment may [cause] bodily harm, it is not a necessary component of bodily harm as it is defined in s. 2 ofthe Code, and it is not a requirement in any of the cases that have interpreted and applied that section. Interference with comfort – that is,discomfort – is sufficient to constitute bodily harm, if it is more than trifling and transient. Pain causing discomfort, if it is more thantrifling and transient, is sufficient, even if it does not impair a person's ability to function. (para 3) [67] I find Ms.

S. injuries fell within the definition of bodily harm set out in s. 2 of the Criminal Code as interpreted by the court inRackham, the B.C. Court of Appeal in Dixon and the Manitoba Court of Appeal in Moquin. Did Mr. Billyboy escape from lawful custody? Evidence of Police Officers [68] Constables Stewarts and Kooger were stationed at the Williams Lake RCMP detachment on April 4, 2016. They responded totwo 911 call reporting Mr. Billyboy’s assault on Ms. S.

The officers arrived at [omitted for publication] Drive in separate police vehiclesabout ten minutes after the RCMP had received the 911 calls. [69] The officers went to [omitted for publication] and loudly knocked on front door about four times. No one answered the door. Mr. Billyboy opened the upstairs window which Ms. S. had identified as that belonging to J. Constable Stewart asked Mr. Billyboy tocome to the door. He refused. Constable Stewart repeated his demand that Mr. Billyboy come down and open the door. Again herefused and asked him, “Where is your warrant?” Constable Stewart told Mr.

Billyboy he didn’t need a warrant and would kick in thedoor if he didn’t come down and open the door. Officer Kooger went around to the back of the Unit in search of a back door. [70] Mr. Billyboy eventually complied with the police demand and opened the door. Constable Stewart immediately placed Mr.Billyboy under arrest for assault and uttering threats. He allowed Mr. Billyboy to put on some shoes and then took him outside. Aboutthis time, Constable Kooger returned from inspecting the rear of the residence. [71] Constable Stewart had his hands on Mr. Billyboy. The officers took Mr.

Billyboy to Constable Stewart’s police vehicle,searched him, and placed him in the back seat. Constable Stewart did not place Mr. Billyboy in handcuffs [72] Constable Stewart went back to Unit [omitted for publication] and spoke to Ms. S. She was crying hysterically. ConstableStewart and Constable Kooger decided that Constable Stewart would stay with Ms. S. and obtain some statements and Constable Koogerwould transport Mr. Billyboy back to the RCMP Detachment . Constable Kooger went to Constable Stewart’s vehicle and retrieved Mr.Billyboy. He walked Mr.

Billyboy to his own police vehicle, a distance of about 30 feet. Mr. Billyboy was not handcuffed. ConstableKooger placed his right hand on Mr. Billyboy’s left bicep and escorted him to his police vehicle. As Constable Kooger was unlockingthe door to his vehicle, Mr. Billyboy tugged at Constable Kooger’s arm quickly, wrested himself from the officer’s grasp and took off

running toward [omitted for publication] Drive. Constable Kooger ran after Mr. Billyboy, but lost his footing and fell. ConstableStewart took up the chase while Constable Kooger returned to his vehicle. Constable Stewart chased Mr. Billyboy as he ran through theparking lot of the vacant commercial building, between some houses at [omitted for publication] and into a cul-de-sac. They ran about200 to 300 meters, during which Constable Stewart told him to stop, two or three times. As Constable Stewart gained on him, Mr.Billyboy lay down on some grass. Constable Stewart was able to regain control of Mr.

Billyboy and handcuffed him. Constable Koogerarrived in his police vehicle and assumed custody of Mr. Billyboy. The chase took about one minute. [73] Constable Stewart returned to Ms. S. and Constable Kooger took Mr. Billyboy to the RCMP detachment. [74] Ms. S. said that she saw Mr. Billyboy open the door for the police officers. She saw the police grab his arm and she heard theofficer telling Mr. Billyboy he was under arrest. She didn’t see anything after the officer took Mr. Billyboy outside. [75] Meanwhile, Ms. B. returned to the bus stop as now she was late for work.

While standing at the bus stop this second time, Ms.B. saw Mr. Billyboy run away from the police vehicle, across the road in front of the apartment complex and into a back alley or pathbehind a vacant store. She also saw the police officer chasing him. [76] Although she appears to misinterpret the events somewhat, Ms. B. also saw a man who I accept was Mr. Billyboy run off andthe police chase him. I say that Ms B. misinterpreted events because she seems to have mistaken one of the police officers for a secondmale in the residence.

As no other person mentioned a second male in Unit [omitted for publication] , I conclude that Ms. B. wasmistaken. [77] Section 145(1)(

a) makes it an offence to escape from lawful custody. At the time Mr. Billyboy pulled away from OfficerKooger and ran off, he was under arrest and detained. There is no challenge to the lawfulness of his arrest and detention. I find theCrown has proven beyond a reasonable doubt that Mr Billyboy escaped lawful custody on April 4, 2016. Disposition: Mr. Billyboy, 1. With respect to Count 1, assault causing bodily harm to R.A.S. contrary to s. 267(

b) of the Criminal Code; I find you guilty; 2. With respect to Count 2, assault with a weapon against R.A.S., contrary to s. 267(

a) of the Criminal Code, I find you guilty; 3. With respect to Count 3, uttering threats to R.A.S. contrary to s. 164.1(1)(

a) of the Criminal Code, I find you guilty; 4. With respect to Count 4, escape from lawful custody contrary to s. s.145(1)(a)) of the Criminal Code, I find you guilty. I invite Counsel’s submission as to whether either Count 2 or 3 ought to be judicially stayed pursuant to the principles espoused in R. v.Kienapple, (SCC). __________________________ The Honourable Judge J. Doulis Provincial Court Judge Province of British Columbia