R. v. Scarpino Date:, 2017 BCPC 309

Citation: R. v. Scarpino Date: 20170811 2017 BCPC 309 File No: 39104-1-K Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEAN MATHEW SCARPINO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: S. Richards Counsel for the Defendant: J. Arndt Place of Hearing: Duncan , B.C. Dates of Hearing: May 1, June 16, August 11, 2017 Date of Judgment: August 11, 2017

INTRODUCTION [1] THE COURT: Dean Mathew Scarpino is before the court charged on Information 39104-K-1. It contains an allegation that onor about the 23rd day of July, 2016, at or near Ladysmith, in the Province of British Columbia, that he did commit assault of CharmaineSimpson, being an offence contrary to s. 266 of the Criminal Code. [2] Hereinafter, Mr. Scarpino will be referred to as the “Accused.” Ms. Simpson will be referred to as the “Complainant.” [3] The evidence before the court relates to three allegations of assault having taken place on that particular day.

Two allegedlyoccurred at a residence occupied by the Accused and the Complainant located at 4977 Christie Road, in Ladysmith, British Columbia.

To be more precise, that piece of property was occupied by the Accused and the Complainant by way of a tent trailer located at the rearof the property, and behind a house located on that property. [4] The allegations are that the three incidences that give rise to this charge occurred, first, at the house located at the 4977 ChristieRoad location; second, at the trailer located at the rear of the property; and the third, in a location on a roadway behind the propertywhich was visible to passing traffic in that area, sometimes referred to herein as the “road incident.” [5] The task of this court is to determine whether or not Crown has satisfied the burden of proof required of it, and has proven theoffence alleged in the information beyond a reasonable doubt.

PRESUMPTION OF INNOCENCE AND REASONABLE DOUBT [6] 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. [7] The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [8] 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. [9] The Crown must prove more than probable guilt; however, reasonable doubt does not involve proof to an absolute certaintysince that would be an impossibly high standard. [10] 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 R. v.

Starr, 2000 SCC 40 ; [2000] 2 S.C.R. 144.) THE W.(D.) FORMULATION [11] I must instruct myself that in the trial of criminal matters, it is not a question of which witnesses, 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. [12] Where there is evidence of an accused that raises a defence, as in the case in the matter before me, then I must further instructmyself, and I must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (S.C.C.); [1991] 1S.C.R. 742, found at paragraph 28. [13] First, if I believe the evidence of the accused, obviously I must acquit. Second, if I do not believe the testimony of the accusedbut I am left in reasonable doubt by it, then I must acquit. Third, even if I am not left in doubt by the evidence of the accused, I must askmyself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guiltof the accused. [14] 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 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a Complainant coupled with disbelief of anAccused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whether thatevidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence taken as awhole 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.

Thekey 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). [15] 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 that, logically, this ought to be second in order in the W.(D.) analysis. [16] It is important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times or toachieve 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. [17] The lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. (See R.v. S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) [18] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of thewitnesses who provided this conflicting evidence. In doing so, I must weigh all the evidence.

In so weighing the evidence, I may rejector accept some of the witnesses' testimony after taking into account a multitude of factors which include, but are not limited to,appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or external consistency. [19] 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. [20] 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.) ASSESSING CREDIBILITY AND RELIABILITY OF WITNESSES [21] Here I have heard evidence that is conflicting on material matters, as I have noted above, regarding the alleged offence. Therefore, I must assess the credibility and the reliability of those witnesses who have provided this conflicting evidence. [22] In doing so, the testimony of each witness can be considered from three perspectives: (

a) their truthfulness, whether they aretrying to tell the truth or intentionally lying when testifying; (

b) their objectivity, whether they have been influenced by assumptions oremotions which may affect the accuracy of their perceptions; and (

c) the accuracy of their observations, their abilities to observe,remember and communicate accurately. [23] In the case of R. v. Chuna, 2015 BCPC 60, at paragraphs 5 and 6, the learned judge provides a useful review of the factors to beconsidered when assessing the testimony of a witness from these three perspectives, namely, truthfulness, objectivity and accuracy. Ihave applied those factors when considering the evidence that is before me and arriving at my decision. THE EVIDENCE The Crown's Case [24] Crown called three witnesses in connection with this matter. One was the Complainant.

Another was an independent witness,named Regan Dunlop, who observed certain instances that related to what I have referred to as the “road incident,” and the third was theinvestigating police officer, who is RCMP Constable Dirnback. [25] The evidence of both Constable Dirnback and Ms. Dunlop is, in my view, reliable. They are independent of the situation andhave provided information which I have taken into account in determining whether or not the Crown has proven the charge as against theAccused beyond a reasonable doubt. [26] The evidence of the Complainant is central to Crown's case.

She provided testimony over a period of two days, starting May1st, 2017. As a result of not completing matters on that date, the matter went over and was then adjourned on the next trial date, beingthis past June 16, 2017. The matter was made peremptory on defence and then came back before me for the continuation on today'sdate, August 11th, 2017. [27] The evidence provided by the Complainant related to each of what I have referred to as the three incidences. Ms.

Simpsontestified that she and the Accused had been in what I can describe as a very stormy and tumultuous relationship for a period ofapproximately a year to a year and a half. There were several incidences of arguments between them during that period of time. Ms.Simpson, at the time of these events, had a four-year-old child. The Accused was not the father of that child. According to the evidencethat I heard, it is clear that the four-year-old child was certainly present in and around the time that the incidences occurred. [28] The incidences, as I noted above, all occurred on July 23rd, 2016.

From the evidence before me, it appears that that theyoccurred in the late afternoon. The Complainant and the Accused had been arguing for a considerable period of time, and the evidencesuggests that it could have been as long as the preceding two weeks.

It appears, from the evidence, that a separation was pendingbetween the two of them. [29] The Complainant testified, having been left alone for the day, awaiting the Accused's return, that she had made the decision togo with her mother to a fireworks display in Nanaimo, British Columbia. [30] Unable to make cell contact, she walked down to the local Tim Horton's Restaurant to use their WI-FI connection. Sheobserved the Accused driving by her in his vehicle.

I understand from her evidence that there was a brief exchange, and then thereafter,the Complainant arrived back at the property located on Christie Road in Ladysmith (the “Christie Road Property”). [31] The evidence provided by the Complainant is that upon arrival there was no apparent indication of the Accused being present,although she observed his truck which she had previously seen him travelling in with a male passenger.

[ 32 ] She then said that she had some laundry to do. She went up to the house located on the Christie Road Property in order to complete her laundry chores.

It was at that point she said that the Accused arrived, very agitated and unexpectedly, and a physical altercation occurred whereby he “knuckled” her in the back of the head, which I take to be striking her on the back of the head with his knuckle rather than with a full fist or hand, and then pushed her up against the wall and berated and screamed at her. [ 33 ] As I understand it, that was the extent of the first assault which she alleges occurred on that date. [ 34 ] Thereafter, she says she made her way from the house down towards the tent trailer with her child.

She observed the Accused with a woman whom she did not know, standing outside the trailer. As it turns out, that woman was a friend of the Accused. Her name is Tracy Deborah Schuler and she was called as a witness on behalf of the defence. [ 35 ] The evidence provided by the Complainant, and certainly corroborated by the observations of both Ms. Schuler and by the Accused himself, was that the Accused and the Complainant got into a further animated and strenuous argument.

This was taking place in the presence of the four-year-old child. [ 36 ] At this point, it is the evidence of the Complainant that she made her way into the trailer to obtain the last of her possessions, or at least some of her necessary possessions, for the purposes of departing from the residence as demanded by the Accused. [ 37 ] Her evidence is the Accused entered into the trailer, following her, and thereafter, she alleges, she was further assaulted by the Accused by being pushed around and again physically manhandled, and then pushed down and struck.

All of this, she said, occurred while the independent witness, Ms. Schuler, was outside of the trailer attending to the care of the four-year-old child. [ 38 ] The Complainant says that following this event, she was able to extricate herself, push past the Accused, retrieve the child, put the child into a stroller and then proceed to what was referred to in the evidence as a logging road situated at the rear of the Christie Road Property, whereupon she proceeded to head back towards the Ladysmith town centre. [ 39 ] It was at that point, she said, that the third assaultive incident or road incident occurred.

That third incident involved the Accused coming after her very hastily, arguing with her, telling her that they had to talk matters out and to come back. She says that she had made her decision that she was leaving and was not going to be returning. She then says that, at that point, the Accused grabbed her and she was trying to extricate herself from him. [ 40 ] She testified that she turned away and was trying to continue to push the stroller up a hill while he was grabbing at her shoulder or her purse.

She indicated that she was waving her arms, trying to prevent him from grabbing her, at which point, she says that as she was turned away from him trying to leave, she felt a kick at the back of her calf, whereupon she cramped up and she actually fell, as she lost her footing. She fell to the ground. Fortunately the stroller did not move as she was on the ground. At that point, she says a couple identified as being a “Native couple,” drove up.

They confronted the Accused and told him to cease and desist from further assaulting the Complainant. [ 41 ] The Native couple offered the Complainant transport into downtown Ladysmith, but I understand that at that point it was declined by the Complainant. Therefore, the evidence of the Complainant was that these events that took place on the roadway were sufficient to attract outside attention and to prompt a passing motorist to stop and to attempt to intervene on her behalf. [ 42 ] The Complainant was thereafter next in contact with another third party upon the arrival of the police officer.

That police officer was Constable Dirnback. Constable Dirnback spoke to the Complainant at the side of the road. This was in and around 9 p.m. on the alleged offence date of July 23, 2016. [ 43 ] The evidence of the Constable, who apparently arrived on the scene shortly after the road side altercation had taken place between the Accused and the Complainant, was to the effect that he noted that the Complainant was upset and crying. The child appeared to be uninjured. The Police Constable noted some redness in the calf area where the Complainant said that she had been kicked by the Accused.

According to the police officer's evidence, it was barely visible but certainly the area was observable in terms of the redness on the calf of the Complainant. [ 44 ] A statement was taken from the Complainant by Constable Dirnback. Thereafter, attempts were made by Constable Dirnback to locate the Accused. It appears that those attempts were unsuccessful. On the same evening in question, there was a later opportunity, as I understand it, for Constable Dirnback, or other members of the Ladysmith detachment, to make contact with Mr. Scarpino.

It is noteworthy that the Information in this matter was sworn and the charges were laid some weeks later, on October 14, 2016. [ 45 ] The third witness, called by Crown, being Regan Dunlop, is important to the Crown's case. As I indicated above, she observed certain aspects of the road incident; however, she did not have a full and uninterrupted view of all of the events that took place that were continuous and totally unbroken in the terms of time.

There was a period of time when she says that the parties to the incident (as it turns out, being the Complainant and the Accused) were not in her line of vision. [ 46 ] But what caught her attention as she was driving by was a couple who were obviously engaged in an untoward public display of arguing on the roadway. Ms. Dunlop's observations were that this couple appeared to be very angry with each other.

This prompted her to turn her vehicle around and park her car about 10 feet from them. [ 47 ] She said that there was aggressive behaviour taking place and the male, whom she described as an “aggressive male” kept walking towards and away from the female. She described that his arms were up, like he wanted to hit her. She further described a motion of his fists being held up. When she saw that, she had significant concern about the child being exposed to this and possibly becoming involved in the incident that was taking place. [ 48 ] Ms.

Dunlop indicated that both the male and the female were swearing and yelling at each other. She was unable to make out what exact words were being used, but she said that the body motions being used and expressed by both to the other made it very clear that they were in a very hotly contested discussion. She says that she observed the female was screaming back and observed that the

female, in the view of Ms. Dunlop, was trying to defend herself and to get away from the male. [ 49 ] In comparison between the male and the female, it was Ms. Dunlop's observation that the female was not as aggressive as the male. As I understand it, although the female’s arms may have been raised, that appeared to be in order to assist her in getting away from the male who was, in the view of Ms. Dunlop, the aggressor in the situation. [ 50 ] The angry and aggressive behaviour, as I previously noted, was of some concern to Ms.

Dunlop which resulted in her making a 9-1-1 call to the police to report the incident. However, due to some pressing commitments, she was unable to stay at the scene for the police to arrive but later provided a police statement. [ 51 ] In cross-examination, Ms. Dunlop stated that it looked like the Accused was about to punch the Complainant, but she also noted words to the effect that the Complainant was “like hitting him back,” which I have interpreted from the whole of the evidence that is before me, both from Ms. Dunlop and from the Complainant, to be more as a defensive reaction.

DEFENCE POSITION [ 52 ] The defence called two witnesses. [ 53 ] The Accused testified on his own behalf.

He denied that he was either at the house or that he in any way assaulted or even saw the Complainant at the house on the Christie Road Property. [ 54 ] The Accused indicated that while he encountered and was engaged in a further argument with the Complainant at the trailer, he denied any assaulting or pushing of the Complainant at that location. [ 55 ] He then testified as to the events that took place on the roadway. [ 56 ] It was that road incident where the Accused does admit that there was physical contact between himself and the Complainant.

He says that he followed after the Complainant because of the fact that he could not find his keys to his vehicles, being both his truck and his motorcycle. He had surmised that the Complainant was responsible for taking those keys with her. Accordingly, he went after her, not in order to encourage her to come home and to talk about these matters, but rather to obtain the keys back from her. [ 57 ] He says that while he was attempting to engage her for the purposes of getting the keys back, she struck him with a blow which caused some stinging.

He testified that in order to extricate himself from her, he simply used his foot to push her away.

The Accused says that at that point, the Complainant lost her balance and went down to the ground. [ 58 ] From that point, as I understand it, the Accused and the Complainant departed from each other and the Accused returned back to the Christie Road Property where he stayed for a couple of hours, eventually making his way to Nanaimo in order to stay with a friend. [ 59 ] It was the evidence of the Accused that he did make inquiries through a Nanaimo lawyer about whether or not charges were pending or outstanding against him and was satisfied that none were. [ 60 ] Therefore, throughout his evidence, the Accused repeatedly denied that there was any physical contact between himself and the Complainant other than during the roadside incident.

He said that he understood the risks of him becoming physically involved with the Complainant or perpetrating physical actions against the Complainant because of their past history and her penchant for complaining about him and reporting him to the police. [ 61 ] In cross-examination by Crown Counsel, he did admit that he had a number of prior convictions for domestic assaults; but in his evidence, he continued to assert that he would not have used any physical force in this situation because he was aware of the potential consequences of charges against him if that should occur. [ 62 ] He also said that if he had actually engaged in physical assaults against the Complainant, then there would be clearer evidence of any injuries that she would have sustained.

In fact, he stated that he was unable to control how hard he hit people. Accordingly, he took that into account, saying that had he actually struck her, she would be hospitalized as a result of any such physical engagement. [ 63 ] The second witness that was called by defence was Ms. Schuler. Ms. Schuler is a long-time friend of the Accused and she has known him since she was in her teen years.

She has had a business relationship with the Accused insofar as he has frequently provided her with detailing services on her vehicle. [ 64 ] She arrived at the residence of the Accused and the Complainant on the Christie Road Property for the purposes of giving the Accused an opportunity to see a new car which she had just acquired. She testified that when she arrived, the Complainant was not visible or present.

She and the Accused left the Christie Road Property and drove around the block for a brief period of time in order for him to have the opportunity to both see the new vehicle and, as I understand it, to test drive it. [ 65 ] Upon returning back to the Christie Road Property, the Accused and Ms. Schuler continued to talk for a period of time, outside of the trailer, at which point the Complainant was seen coming down from the house towards the tent trailer area, carrying a laundry basket and accompanied by the child. [ 66 ] In her evidence, Ms.

Schuler says that there was no time during which the Accused was out of her presence. She did not observe him heading up to the house or coming down from the house, which was located some distance from the trailer. [ 67 ] She said that upon the arrival of the Complainant down by the trailer, a significant argument with heated verbal exchanges took place between the Complainant and the Accused, including a large amount of swearing. Again, all of this was taking place in the presence of the child, which was of concern to Ms. Schuler. She says that at no time did she observe any physical altercation or contact

between either the Complainant or the Accused, although she did concede that she was not looking inside the trailer but rather positioned off to the side of the entrance and focussed on the child rather than looking into the trailer. [ 68 ] There is nothing in her evidence that would indicate that she heard any commotion of a physical nature taking place inside the trailer between the Accused and the Complainant, but simply the continuation of shouting and screaming between the two of them. [ 69 ] Ms.

Schuler indicates that, thereafter, the Complainant left the Christie Road Property, proceeded by the rear logging road, and disappeared. Her evidence is that the Accused remained with her for a period of time; she then departed, although she was uncertain about the length of time. [ 70 ] The evidence of Ms. Schuler is uncertain with respect to several matters. She admits that she was not asked until some months after these incidences by the Accused about being a witness and providing some evidence.

Therefore, she does admit that several of the details of her evidence are not as precise as they could or should be. CROWN’S POSITION [ 71 ] Crown submits that on the basis of all the evidence, they have discharged their burden of proof and that the Accused should be convicted of the allegation of assault. [ 72 ] As I understand Crown's position, they say no reasonable doubt has been raised on the evidence provided by the Accused to the effect that he had no physical contact, either at the house or at the trailer on the Christie Road Property.

Also, no reasonable doubt is raised by his evidence about the physical contact that occurred during the road incident and to the effect that it was really self-defence on his part, as he tried to get away and extricate himself from the Complainant with the use of his foot. [ 73 ] The Crown says that, on the whole, the evidence of the Accused is totally unreliable, and that there is a lack of both internal and external consistency to it. [ 74 ] There is no doubt that in providing his evidence, the Accused was both challenging and presented some challenges.

This appears to be due in part to significant head injuries sustained by the Accused, apparently on two prior occasions, which made questioning him, by both Crown and defence, somewhat challenging. On several occasions, the court had to intervene and direct the Accused to answer the questions that were being posed to him by Crown and to direct him to answer those questions rather than to proceed on with information which was not the subject of the questions. [ 75 ] The Crown says that the evidence of Ms. Dunlop is totally consistent with an assault taking place on the roadside.

Crown says that self-defence is not available to the Accused with respect to the incident that occurred on the roadway because it does not meet the requirements of s. 34 of the Criminal Code . The Crown further says that the evidence of Ms.

Schuler must be given limited weight because of her inability to recall some of the important events. [ 76 ] Therefore, Crown is saying that I should be accepting the version of events that were provided by the Complainant with respect to the three assaults, one in the house, the second at the trailer, and the third on the roadside, and on that basis they have discharged their burden of proof. [ 77 ] Crown also says that the evidence of the Complainant is externally consistent with the evidence that was able to be provided both by the investigating police officer as well as by Ms. Dunlop.

DEFENCE POSITION [ 78 ] Defence says that the Crown has failed to satisfy the burden of proof and to prove the alleged assaults (or any of them) beyond a reasonable doubt. Defence points to the timing problem that is present in the evidence of the Complainant. She alleges that the Accused was present in the house and assaulting her when, in fact, according to the evidence of Ms. Schuler, the Accused was with her during the period of time from their departure for the motor vehicle road test to their return to the Christie Road Property and the subsequent arrival of the Complainant.

In other words, from the arrival of the Complainant at the Christie Road Property until the events that allegedly took place inside of the house, there was not an opportunity for that assault to actually occur as described by the Complainant because of the Accused's absence from the Christie Road Property and while he was in the company of Ms. Schuler. [ 79 ] With respect to the alleged events that took place in the trailer and the alleged assault that occurred there, again, defence says that there is significant inconsistency in the evidence of the Complainant, again pointing to the observations of Ms.

Schuler, or the lack of the observations of Ms. Schuler of any assault taking place at that time. [ 80 ] Notwithstanding the challenges that the Accused presents as a witness, I am being urged to accept his version that he did not assault the Complainant in either the house or in the trailer. [ 81 ] With respect to the incident that occurred on the roadside, I am being asked by defence to accept that an incident did occur, but that the Accused's pursuit of the Complainant was in aid of recovering his truck and motorcycle keys.

The keys were mentioned only by the Accused in cross-examination and had not been raised in examination-in-chief. However, I am being urged by defence to accept that this was a rational explanation for the Accused’s following after the Complainant. [ 82 ] Defence submits that in the course of the roadside altercation, the Complainant was instrumental in striking at the Accused and that her strikes occasioned a response from the Accused within the meaning of self-defence pursuant to s. 34 of the Criminal Code . Accordingly, I should, therefore, also acquit on that allegation.

ANALYSIS [ 83 ] Based on all of the evidence and applying the W.(D.) test, I am unable to find that Crown has discharged its burden of proof

with respect to the two incidences that occurred at the Christie Road Property. I am left in reasonable doubt that an assault occurred at that location, either in the house or at the trailer. The timing issues of when that could have occurred and how it could have occurred within the proximity of Ms. Schuler forms the basis of this conclusion. I accept her as a relatively independent witness and observant witness regarding matters which would involve the occurrence of an actual physical assault or physical altercation. She observed and heard none.

This leads me to conclude that there is a lack of evidence to meet the Crown's burden with respect to the alleged incidences of assault occurring in those two locations. [ 84 ] I must now consider whether or not the Crown has proven the assault allegation or the incident that occurred on the road. In that regard, I do find that the Crown has discharged its burden of proof and has proven beyond a reasonable doubt that an assault took place at that location in much the manner that was described by the Complainant in her evidence.

I am satisfied that the evidence in that regard is sufficient and is corroborated by the objective observations of Ms.

Dunlop as to what was taking place, although she apparently did not observe the kick administered by the Accused. [ 85 ] I also rely on the fact that I find it very challenging to accept the Accused's version that he was defending himself by using his foot to push away the Complainant, especially in view of the fact that the red mark, although somewhat faint, was on the rear of the Complainant's leg, rather than, as one would expect, at the front of the leg. [ 86 ] So, in other words, based upon the Accused's version that he and the Complainant were face-to-face and that she was striking him while in that position, I find it very challenging and bordering on the impossible to understand how a leg push, which the Accused says was administered by him in that position, could have found its way to the rear of the leg of the Complainant and where the faint red marks were observed by the attending police constable. [ 87 ] On the basis of the evidence of both Ms.

Dunlop and the Complainant, as well as the corroborating observations of Constable Dirnback regarding the location of the red marks on the rear the Complainant’s leg, I accept that an assault by the Accused upon the Complainant did occur at that point. Furthermore, there is no defence of self-defence available to the Accused under s. 34(1) and upon consideration of the factors specifically set out under s. 34(2) of the Criminal Code .

CONCLUSIONS [ 88 ] Therefore, on the whole of the evidence I do find that the Crown has met its burden of proof and has proven that the Accused assaulted the Complainant as alleged in the information before me; that the assault occurred on the roadway a fairly short distance from the Christie Road Property; that the assault flowed from the interaction between the parties observed by the independent witness, Regan Dunlop; and that the assault occurred in the manner described by the Complainant in her evidence. [ 89 ] That concludes my reasons for judgment with respect to this matter. [REASONS FOR JUDGMENT CONCLUDED]