R. v. Jimmy Date:, 2017 BCPC 73

Citation: R. v. Jimmy Date: 20170221 2017 BCPC 73 File No: 38579-K-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LEROY LOUIE JIMMY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown: L. Fontaine Counsel for the Defendant: S. W. Sheets Place of Hearing: Duncan , B.C. Dates of Hearing: October 28, 2016 & February 21, 2017 Date of Judgment: February 21, 2017

INTRODUCTION [1] THE COURT: Leroy Louie Jimmy (hereinafter referred to as the "Accused") is named in Information 38579-K-1, with anallegation that on or about the 20th of December, 2015, that he did commit assault of Zena Roland (hereinafter referred to as the"Complainant"), and in doing so did use a weapon, namely a coffee cup and contents. That is an offence contrary to s. 267(

a) of theCriminal Code. [2] The Complainant alleges that, as a result of the confrontation between herself and the Accused that he threw the contents of acoffee cup at her, and then struck her in the face with the coffee cup. [3] The Accused contends that he inadvertently, in the course of slipping and falling, launched the contents of the coffee cup in thedirection of the Complainant and that she was accidentally struck by both the contents, as well as by the coffee cup. [4] The task of this court is to determine whether or not, on all of the evidence before it, that the Crown has satisfied its burden ofproving the offence beyond a reasonable doubt.

PRESUMPTION OF INNOCENCE AND REASONABLE DOUBT [5] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen can the court convict the Accused person. Where reasonable doubt exists on any element of the offence charged, the Accused mustbe acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the Accused person. [6] Reasonable doubt is not an imaginary or a frivolous doubt, nor is it based upon sympathy or prejudice.

Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve a proof to an absolute certainty since that would be animpossibly high standard. [7] The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. (See R. v.Lifchus, (S.C.C.), [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144.) THE W.(D.) FORMULATION [8] I must instruct myself that in the trial of criminal matters, it is not a question of which witness's evidence or version of theevents I believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [9] Where there is evidence of an Accused that raises a defence, as in the case in this matter, then I must further instruct myselfand I must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (S.C.C.), [1991] 1 S.C.R.742, found at page 28. In

summary: First, if [I] believe the evidence of the Accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the Accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the Accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [10] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v. J.M.H., 2012 PECA 6, [2012]P.E.I.J.

No. 10, at paragraphs 30-31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan Accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence takenas a whole raises a reasonable doubt (R. v. Ellis, 2006 PESCAD 25, at para. 18).

Proper application of the third step involves moving thefocus from the evidence of the Accused to the Crown's evidence and assessing it in its own right (in relation to all the evidence) on thecriteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringingevidence that can prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paras. 28-31). The Supreme Court of Canadarecently stated in R. v.

J.H.S., 2008 SCC 30 , at para. 8, that a series of decisions has affirmed and reaffirmed that wherecredibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown'sultimate burden to prove the guilt of the Accused to the criminal standard. [31] The third step in W. (D.) stresses that the onus is on the Crown to prove the guilt of the Accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the Accused but still find the Crown had not proved guilt beyond a reasonable doubt. The

key is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2, at para. 7). [11] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., (BC CA), [1991]B.C.J. No. 2753, adds a fourth step to the W.(D.) analysis, namely, if after consideration of all the evidence the court is unable to decidewhom to believe with respect to the central issue in a prosecution, then the Accused must be acquitted.

Josiah Wood J.A. (as he thenwas) suggests logically this ought to be second in order in the W.(D.) analysis. [12] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. [13] The lack of credibility on the part of the Accused does not equate to proof of his or her guilt beyond a reasonable doubt. (SeeR. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) [14] In this case, I have heard evidence that is conflicting on material matters. Therefore I must assess the credibility of thewitnesses who provide this conflicting evidence.

In doing so, I must weigh all the evidence and in so weighing the evidence, I may rejector accept some or all of the witnesses' testimony, after having taken into account a multitude of factors which include, but are not limitedto, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or externalconsistency. [15] I must also direct myself that even honest witnesses may make mistakes in their evidence or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [16] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094.) THE EVIDENCE The Crown's Case [17] The Crown called a total of three witnesses, including a police officer. [18] The first witness called on behalf of Crown was Constable Bert Calvo, who is a 19 year RCMP member. He was summoned tothe residence of the Complainant on December 20, 2015. That was in response to a 9 1 1 call. The report was that of a domesticviolence situation.

The call came in at approximately 8:21 a.m. and he arrived at the residence just before 8:30 a.m. [19] At the residence, he was ushered into a bedroom which was occupied by the Complainant. She had been attended to by herdaughter, who is Sonia Roland, and who was also called as a witness. [20] The observations made by Constable Calvo were of a person (being the Complainant) seated in the chair, who was obviouslydistressed as a result of having suffered what appeared to be a cut to her face. She had brown liquid on her face. She was visibly upset. [21] Constable Calvo took a statement from her.

He also took a number of photographs at the residence and on the exterior of theresidence. Those photographs were entered as Exhibit 3 in these proceedings, and I will make mention of what is depicted in a number ofthose photographs. [22] First of all, photographs 1 and 2 of Exhibit 3 are pictures of the Complainant. Photograph 1 depicts a cut on the right-hand sideof her mouth, and on her right lip and, on the lower left-hand side of her face and her chin area, is a very distinct bruise.

Picture 2 is aclose up of what is an apparent injury to the lip and right-hand lower lip of the Complainant. [23] Photograph number 7 is a depiction of the bedroom area in which Constable Calvo found the Complainant. Constable Calvo hadentered that particular area earlier prior to taking the photographs. Photograph 8 is an inside view of the bedroom area. What is evidentin this photograph are two windows, and in the background a brown chair. There are a number of First Nations’ artifacts on the wall.

Inthe foreground is a bed area, and there is evidence of a liquid stain on the walls and in some areas the liquid is still dripping down ontothe floor. [24] Photograph number 9 is a close up of one of the two windows in that room. The window that is depicted also shows the adjacentwall area. That window is a window located immediately behind the brown chair in which the Complainant was located at the timeConstable Calvo entered into the room. [25] Photograph number 10 is a close up of the area of a bed pushed up against the wall.

There is a sheet on the bed that shows thesplattering of liquid, both on the wall and then onto the bed clothing. [26] Photograph number 11 is a close up of what is referred to as an “ottoman chair”; it is a brown chair in which the Complainantwas seated at the time of the arrival of Constable Calvo. In the chair is a white coffee mug which was laterally seized and entered as anexhibit in these proceedings by Constable Calvo. As indicted above, it was in the brown chair that the Complainant was seated at thetime that Constable Calvo entered into the room.

There is a window evident in the background and to the right hand side is the bedwhich I previously described, and the wall with staining from what appears to be a coffee liquid coming down it. [27] Next is photo number 13. It is a picture of the window which is located directly behind the chair. The colour of the photograph

is somewhat darker than the other photographs, but it is quite clear that there is a liquid dripping down from the top of the window.

Photo number 13 shows the lower portion of that window and in essence the important view is of the sill area which has upon it a brown liquid consistent with that of a liquid coffee substance. [ 28 ] Photograph number 14 is a close up of the coffee mug located in the seat portion of the brown chair in which the Complainant was seated at the time of Constable Calvo's arrival. [ 29 ] Photograph 15 is a close up of a floor area which, when compared to other photographs admitted into evidence, appears to be immediately adjacent to a rocking chair which is depicted in photograph 16.

The notation made in the evidence of Constable Calvo was that it showed a liquid substance on the floor and that there is evident what appears to be a small purple handbag or purse lying on the floor. Constable Calvo testified that there was liquid on the floor and it was soaking into a piece of paper towelling immediately adjacent to the handbag. [ 30 ] Photo number 16 is a broader view of the bedroom area.

Depicted in it, on the left-hand side, is the rocking chair which, in the fullness of the evidence that was provided, apparently was the location where the Accused was seated at one point immediately prior to the alleged altercation taking place.

Also evident is the bed occupying the immediate right-hand side of the photograph, and then in the area behind the bed is evident the chair in which the Complainant was found upon the police officer's arrival. [ 31 ] In Constable Calvo's cross-examination, he indicated that he did observe some liquid still on the face of the Complainant but did say that he had not observed nor did he make a note of any liquid on her clothing area. [ 32 ] The third witness called by Crown was the Complainant, Zena Roland. Ms. Roland is an aboriginal person who I understand to be a very experienced knitter of Cowichan sweaters.

She is 53 years of age, has one child, Sonia Roland, and four grandchildren. Sonia Roland and the four grandchildren and Ms. Roland's partner at the time resided in the upper half of the house. [ 33 ] In her evidence, Ms. Zena Roland indicated that, upon arising on the morning of the alleged incident on the 20th of December 2015, she and the Accused got into a verbal exchange which accelerated into an argument whereby the Accused became louder and louder. The Complainant attempted to have him moderate his voice.

She indicated at the time that the discussion turned into a verbal argument, she was seated in her brown chair in her bedroom, in the process of knitting. [ 34 ] She testified that the cause of the argument related to the somewhat dire financial circumstances in which she and the Accused found themselves. She indicated that the Accused, who did not hold gainful employment and was, receiving a modest amount of social assistance, became increasingly agitated as a result of the discussions that were taking place.

Then became more and more angry, and he became quite self-critical, referring to himself as a “loser”. [ 35 ] As a result of the continuation of these unhappy discussions, and the raising of voices, the Complainant says that she told the Accused that he must depart from her residence. He refused to do so, and at that point, her testimony is that she started to get up out of her chair, and started to come towards the Accused.

At that point she states that the Accused threw the contents of his coffee cup at her, hitting her in the face, ending up on the various portions of the wall, window, and the bedding, either behind her or adjacent to her chair.

Also, she was struck in the face with the coffee mug. [ 36 ] The exact sequence of events was not necessarily entirely clear, but notwithstanding the fact that she was vigorously cross- examined, she maintained that the coffee cup contents and the mug which hit her were an intentional act on the part of the Accused, and were not in any way part and parcel of the Accused either slipping or falling backwards and accidentally causing the coffee cup contents and the mug to strike her. [ 37 ] There is in her testimony a measure of inconsistency with respect to the exact timing of the events, and where she was seated and where the Accused was seated, but she was essentially unshaken in terms of the actual events of being struck by the coffee cup contents and by the mug. [ 38 ] As to whether or not they were both standing, she disagreed about that.

She was of the view that he was seated at the time she started to make her approach from her chair. That essentially was an adoption of the statement that she provided to the police. As I indicated, there were, in earlier portions of her testimony before cross-examination, a slight discrepancy in the exact location of both the Accused and the Complainant when the events started to unfold. [ 39 ] The second witness who was called on behalf of the Crown was that of the Complainant's daughter. Sonia Roland. She testified and corroborated that she and her four children resided in the upper portion of the house.

She recounts that at the time of the alleged incident taking place on the 20th of December 2015 that she was recovering from an accident and injury to her leg, which caused her to be, in her words, “hobbled” by that injury. [ 40 ] She heard her mother and the Accused yelling at each other. She initially heard his voice quite faintly, but she recognized the voice. She hobbled down the stairs in order to determine what was taking place, and she says that she opened the bedroom door and observed that her mother was crying hysterically.

She witnessed the Accused person standing over her mother. [ 41 ] She did observe what appeared to be coffee, which she described as not being spilled but rather having the appearance of being thrown all over the place. She then confronted the Accused and manhandled him out of the bedroom and towards the front door. [ 42 ] She did indicate that things happened very quickly. She did indicate that there was a resistance on the part of the Accused to leave the residence. This necessitated the further intervention of her then-partner, who was upstairs, who came down.

Eventually they were able to escort the Accused out of the residence. Then shortly thereafter, Sonia Roland heard her mother shouting and went back into the bedroom only to observe the Accused attempting to climb through one of the windows in order to retrieve some items. The Complainant had also confirmed that the Accused tried to make a re-entry into the house through a window. [ 43 ] Shortly after that, and having been told that the police were on the way, the Accused departed from the scene of the premises.

He was subsequently located by the police and was arrested. The Defence's Case [ 44 ] The sole witness called by the defence was the Accused himself. The Accused portrayed a significantly different version of events that took place on December 20, 2015. [ 45 ] In his evidence he does confirm that there was an escalating discussion between himself and the Complainant.

He portrayed it in the sense that she was angry with him for his lack of contribution to the family income and the fact that Christmas was fast approaching and that due to their financial circumstances; they were unable to acquire gifts for the young grandchildren. [ 46 ] He says that she was yelling at him and that he was not calling her names, but he indicated that he had felt that he had endured this type of criticism for a period of some three years. [ 47 ] He then described how she, being the Complainant, came out of her chair and started to walk towards him.

He says he got up and, as he got up, he stated that, in his words, "I slipped backwards". He indicated that as a result of that slip, his hands went up in the air. In his hand he had the coffee cup containing half a cup of coffee in it. He says as he fell backwards, that the coffee then splattered both towards the area from which the Complainant was approaching him, as well as splattering on the back of the area behind the chair. [ 48 ] He also said everything happened so fast, but when pressed in cross-examination, he denies that he threw the coffee or the coffee cup at the Complainant.

Also, in cross-examination, he indicated that she was some 10 feet away at the time that he accidentally slipped and fell backwards. [ 49 ] He contends that the cup was still in his hand and that it was in the area adjacent to the rocking chair where he had been seated.

He was unable to explain how the coffee cup was eventually located in the chair that had been occupied by the Complainant. [ 50 ] In the version of events portrayed by the Accused, he says that all of this was accidental and he then attempted to express his apologies to the Complainant, and he tried to attend to her by looking at the wounds that she had sustained as a result of being accidentally hit by the coffee cup. He says that she rejected those advances by him in order to try to attend to her. [ 51 ] In his evidence, the Accused also denied that he was resistant about leaving the residence.

He stated that he left on his own accord and not at the insistence and not with what I will call the assistance of Sonia Roland. He also denied that he came back through the window of the bedroom.

He further denied that he had observed Sonia Roland having to limp as a result of the leg injury. [ 52 ] In his evidence, he was unable to explain how the coffee cup contents found their way towards the chair occupied by the Complainant and by the window, and also above the window adjacent to the brown chair, while at the same time there was no coffee on the ceiling above him where he alleges he had slipped, fallen, and the contents had then sprayed.

CROWN’S POSITION [ 53 ] Crown contends that the evidence of the Complainant and the other physical evidence as captured in the series of photographs, plus the evidence of Sonia Roland, supports the version of events of the Complainant, namely: that she was the victim of the contents of the coffee cup being thrown at her, and that the coffee cup itself was thrown at her, rather than being accidentally launched from the hand of the Accused while he was in the process of slipping backwards into his rocking chair. [ 54 ] Crown contends that the description of events as portrayed by the Accused simply are physically impossible.

Further that the photographs clearly indicate that the contents of the mug of coffee could not have resulted in the spray pattern that was evident by the photographs if it were simply a case of the Accused slipping and falling. [ 55 ] Accordingly, I am being asked to accept the evidence of the Complainant that she was intentionally struck by the contents of the coffee cup being thrown at her and by the coffee cup itself being launched and striking her in the face.

DEFENCE’S POSITION [ 56 ] Defence says that the Complainant is an unreliable witness, that she was highly emotional at the time of this event taking place, and by the recent passing of her mother, and also by a medical condition, namely lupus, which the Complainant testified makes her quite emotional. [ 57 ] It is essentially the submission of the defence, based on the W.(D.) analysis and by the decision in R. v. C.W.H. , that based on the evidence, that there is a level of uncertainty that does not allow me to convict the Accused on the basis of proof beyond a reasonable doubt.

ANALYSIS [ 58 ] I find the evidence of police Constable Calvo to be both useful and reliable. He was clear in his evidence and did not try to exaggerate or to come up with speculative answers on things, but rather he gave his evidence in a straightforward manner.

[ 59 ] The evidence of Sonia Roland I also found to be substantially reliable. There were some inconsistencies in terms of information that she provided during her testimony and the statements that she made to the police immediately following the events.

However, she was able to observe a number of things that took place which would corroborate the evidence of the Complainant in this matter. [ 60 ] I do accept her evidence, as also supported by the evidence of the Complainant that the Accused did attempt to re-enter into the premises by climbing through the window. [ 61 ] I also accept her evidence that she took efforts to ensure that the Accused person left the premises, and that he was less than cooperative, thus it was essential for her to physically escort him out of the premises before he actually departed. [ 62 ] I find the evidence of the Complainant to be reliable.

There are again inconsistencies in her evidence. Some of that inconsistency, I think, can be attributed to the speed at which these events unfolded. [ 63 ] Her evidence is not entirely clear about where each of the Complainant and the Accused were standing at the time that she was hit by the coffee. She did not exaggerate the situation but in her testimony she was quite emotional and found the reliving of events to be quite challenging.

Notwithstanding that she was somewhat combative in some of her cross examination responses, I do not find that combativeness in any way takes away from her observations of what occurred on that day. [ 64 ] Therefore, I find on the material issues of being struck by coffee and being struck by the coffee cup, I accept that that was not as a result of anything in the nature of a slip and fall. The Complainant denied in any way seeing the Accused person slipping and falling. [ 65 ] That leaves me to assess the credibility and reliability of the Accused in this case.

I can say that, for the most part, his explanation as to how the coffee cup contents were accidentally launched at and towards the area where the Accused was seated, and how she became struck by the coffee cup, to lack that essential grain or ring of truth. [ 66 ] His description of how she was standing some 10 feet away and how the coffee cup contents ended up, not as one would expect either going upward or hitting the ceiling above him or the wall behind him as he fell backwards and his hand went up in the air, but rather appeared to have been flung towards the area where the Complainant was seated.

This just simply does not make sense on the evidence that I have observed in the photographs and even on his own explanation of the relative locations of the Accused and the Complainant at the time of the actual physical altercation and the alleged assault taking place. [ 67 ] Therefore I do reject the explanation offered by the Accused in this matter.

I find that the Crown has proven their case and the essential elements of it beyond a reasonable doubt. [ 68 ] Accordingly, I convict Leroy Louis Jimmy in the committing of assault of Zena Roland, and that he did use a weapon, namely a coffee cup and its contents, contrary to

section 267 (

a) of the Criminal Code . [ 69 ] That concludes my reasons for judgment with respect to this matter.