R. v. Bergman and Peterson Date:, 2017 BCPC 334

Citation: R. v. Bergman and Peterson Date: 20171030 2017 BCPC 334 File No: 39169-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JESSE THOMAS BERGMAN COURTNEY BRIANNE PETERSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: P. Cheeseman Counsel for the Defendant: S. Sheets Place of Hearing: Duncan , B.C. Dates of Hearing: July 6, July 7 and August 10, 2017

Date of Judgment: October 30, 2017 INTRODUCTION [ 1 ] THE COURT: Jesse Thomas Bergman and Courtney Brianne Peterson are before the court on a four-count information alleging offences that all occurred on or about August 22, 2016, at or near Duncan, in the Province of British Columbia. [ 2 ] The Complainants are their neighbours, namely, Warrick Whitehead and his spouse, Janice Whitehead.

The allegations before the court arose out of an unplanned encounter by these sets of neighbours on the historic Cowichan River in a rural location within walking distance of their respective residences. [ 3 ] Count 1 alleges that Mr. Bergman uttered a threat to Mrs. Whitehead to cause death or bodily harm to Mr. Whitehead contrary to s. 264.1(1) of the Criminal Code . [ 4 ] Count 2 alleges that Mr. Bergman in committing an assault of Mr. Whitehead did cause bodily harm to him, contrary to s. 267 (

b) of the Criminal Code. [ 5 ] Count 3 alleges that Mr. Bergman and Ms. Peterson did assault Mr. Whitehead, contrary to s. 266 of the Criminal Code . [ 6 ] Count 4 alleges that Ms. Peterson did assault of Mrs. Whitehead contrary to s. 266 of the Criminal Code . [ 7 ] Mr. and Mrs. Whitehead (collectively the “Complainants”) say they are the victims of these offences. Mr. Whitehead is in his late sixties, stands about six feet tall, and weighs 145 pounds. Mrs.

Whitehead is in her mid-sixties, appears to be average in terms of height and weight, and at the time of the events giving rise to the charges was awaiting a knee operation. They are active retirees and have an interest in environmental and ecological issues. [ 8 ] Mr. Whitehead was trained in and, prior to his retirement, worked as a watchmaker for most of his career until he took a position with the local school district working with special needs students. He has a very significant hearing impairment. Mrs.

Whitehead, prior to her retirement, was an adult education instructor and also has a background in employment counselling for persons with disabilities, intercultural clients and regular clients, as well as having a background as a computer technician. [ 9 ] Mr. Bergman and Ms. Peterson (collectively the “Co-Accused”) deny the criminal allegations, and in their exculpatory testimony say that they are the victims, that they were assaulted by the Complainants, and that they had their personal property damaged by the actions of Mr.

Whitehead. [ 10 ] The Co-Accused, who are presently engaged to be married, reside together as noted above. Ms. Peterson is in her late twenties and is employed full-time as an early childhood educator which she has worked at for some five years. She is five feet, four inches tall and weighs 130 pounds. [ 11 ] Mr. Bergman is also in his late twenties. He is a cement finisher and has worked at that vocation for some nine years.

He appears to be relatively large and very physically fit, which no doubt is due, in part, to the nature of his employment. [ 12 ] Only the Co-Accused have been charged and are before the court. [ 13 ] Neither of the Co-Accused has a criminal record. More specifically, Ms. Peterson has never been arrested nor charged with any offence. [ 14 ] Not surprisingly, the evidence of both of the Complainants of what occurred during the encounter with the Co-Accused by the Cowichan River is similar to each other when describing the events.

Again, not surprisingly, the evidence of the Co-Accused is similar to each other when describing those events. [ 15 ] Both evidentiary versions of the events indicate that a form of physical contact and an altercation occurred during the encounter on the day in question. [ 16 ] A significant theme within the evidence of both the Complainants and the Co-Accused related to dog faeces. That term was by no means the term exclusively used within the questioning or testimony to describe dog excrement.

Sometimes, it was described by that term and sometimes it was referred to as dog faeces by the witnesses and as dog poo. The term “shit” was also used frequently; that word is described by the Shorter Oxford English Dictionary as being “coarse slang” and having origins in Old English and derived from a Germanic base and related to the Middle Low German word for “dung” and the Middle Dutch word for “excrement”.

Unless I otherwise indicate in these Reasons for Judgment, I will utilize the word “dog excrement” when in fact some of the other words noted above, including the coarse slang term, may have been used in the course of hearing the evidence. [ 17 ] The issue before the court to be decided is whether or not Crown has discharged its evidentiary burden and proven each of the charges beyond a reasonable doubt on the whole of the evidence. Presumption of Innocence and Reasonable Doubt [ 18 ] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt.

If that occurs, then, and only then, can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused must be acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [ 19 ] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is a doubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown must

prove more than probable guilt. [20] However, reasonable doubt does not involve proof to an absolute certainty since that would be an impossibly high standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. (See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, and R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144.) The W.(D.) Formulation [21] I must instruct myself that in the trial of criminal matters it is not a question of which witness's evidence or version of the eventsI believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [22] Where there is evidence of an accused that raises a defence, as in the case of this matter, then I must further instruct myself, andI must apply to this evidence the well- known process of analysis set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, asfound at paragraph 28. [23] First, if I believe the evidence of the accused, then, obviously, I must acquit. [24] Second, if I do not believe the testimony of the accused but I am left in a reasonable doubt by it, I must acquit. [25] 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 evidencewhich I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [26] 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]PEIJ 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 the focusfrom the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all the evidence) on the criteriaof coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringing evidence thatcan prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paras. 28-31). The Supreme Court of Canada recently statedin R. v.

J.H.S. 2008 SCC 30 [Can Lll] at para. 8, that a series of decisions has affirmed and reaffirmed that where credibility is a centralissue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden toprove 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). [27] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J.

No. 2735, adds afourth step to the W.(D.) analysis; namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted. [28] Josiah Wood J.A. (as he then was) suggests that, logically, this ought to be second in order in the W.(D.) analysis. [29] 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. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v. S.(J.H.), supra.) [30] 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 of the evidence.

In so weighing the evidence, I mayreject or accept some or all of the witness's testimony, after having taken into account a multitude of factors which include, but are notlimited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or externalconsistency. [31] 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. [32] 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 and R. v. Mann, [2010] A.J. No. 1094.) Assessing Credibility and Reliability of Witnesses [33] Here I have heard evidence that is conflicting on material matters regarding the two alleged offences, and I must assess thecredibility and the reliability of those witnesses who have provided this conflicting evidence. [34] In doing so, the testimony of each of the witnesses can be considered from three perspectives:

a) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying;

b) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of their

perceptions; and

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [35] In the recent case of R. v.

Cuhna, 2015 BCPC 60 at paragraphs 5 and 6, the Honourable Judge Merrick provides a useful reviewof the factors to be considered when assessing the testimony of a witness from these three perspectives: Truthfulness [36] Relevant factors for truthfulness include: previous inconsistent statements or occasions on which the witness has beenuntruthful; inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with thetestimony of the witness and the attitude and the demeanour of the witness.

However, when considering demeanour, it is important toconsider all the possible explanations for the witness's attitude and to be sensitive to individual and cultural factors that may affectdemeanour. Objectivity [37] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'sexpectations, the assumption of unproven facts, or by subsequent events. Accuracy [38] Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period ofobservation and the circumstances of the witness's observations.

The reasons for recalling an event and the length of time betweenwitnessing an event and providing testimony about it may affect the accuracy of the witness's testimony and, hence, its reliability. Somewitnesses may have difficulty communicating their evidence clearly, due to factors such as nervousness.

The Evidence [39] For the purpose of these Reasons, I have broken the evidence into three categories. [40] First, what I view as non-controversial background facts that surround this case. [41] Next is the evidence adduced by Crown in support of the Crown’s theory of the case, for the most part provided by theComplainants. [42] Last is the evidence adduced by defence in support of their theory of the case which has been provided by the Co-Accused. [43] For the benefit of all of the parties and their supporters present in court today, it is important to understand the approach that Ihave followed in summarizing the evidence in these Reasons for Judgment.

It is the same approach usefully and concisely set out by theHon. Judge T.S. Woods in the recent decision of R. v. Connell, 2017 BCPC 123 at paragraphs 5 and 6, which state: [5] Finally in this introduction, before turning first to set out the Crown and defence theories of this case, I will candidly acknowledgethat in these Reasons for Judgment I have not made reference to all of the testimony given by the witnesses who were called, or to all ofthe documentary evidence that was received and marked.

I have, rather, referred to evidence that I consider it necessary to mention inconnection with my factual findings and the legal conclusions that flow from them. In places I have made mention of evidence that I havebeen unable to accept, and of the reasons why I have been unable to accept it. If evidence is not mentioned in this decision, both Crownand defence may take comfort that the omission is not the result of my not having taken note of it. I have read all of the transcripts fromend to end. I have done the same with all of the documentary exhibits.

If witness testimony or documentary evidence do not come up forspecific mention in these reasons, that is because: (

a) The evidence was not relevant; (

b) The evidence is to the same effect as other evidence of which mention has been made; or (

c) The evidence was tendered in support of alleged facts I have not found and arguments that I have not accepted, having regard to thefacts that I have found and the arguments that are supported by those facts. [6] It is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed and somewhatselective canvassing of the evidence heard at trial is well established on the authorities.

The law is clear that where there is substantialsupport in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error byfailing to refer to every item of evidence that was adduced: see, for example, R. v. Tse, 2013 BCCA 121 at para. 56; R. v.Blacklaws, 2012 BCCA 2017 at para. 50 (aff’d, 2013 SCC 8 ); and R. v. Dinardo, 2008 SCC 24 at para. 30.

The Non-Controversial Background Circumstances and Facts [44] The Complainants have resided for 37 years on property described as River Bottom Road, 5330 West, which is in a rural areaoutside of Duncan, British Columbia. Their residence is on acreage located on the river side of River Bottom Road. A trail from the rearof their residential property leads down to, and provides access to, the Cowichan River. It is a short walk from the rear of their residenceof only a couple of minutes.

They also own two other unimproved properties in the neighbourhood which are located across the streetfrom their residence. [45] Adjacent to one of the Complainants' properties located on the opposite side of River Bottom Road from their residence andbeing kitty corner to the Complainants' riverside residence is a house rented and occupied by the Co-Accused as their residence. Theaccused’s (Jesse Bergman) uncle, Bobby Bergman, lives almost directly across the street from the Co-Accused’s rental house. Bobby

Bergman’s property is, therefore, immediately adjacent to the Complainants’ residence on the riverside of River Bottom Road. [ 46 ] Bobby Bergman’s property contains on it a roadway leading down to the Cowichan River. Bobby Bergman permits the Co- Accused and their eight-year-old and two-year-old Golden Retrievers to utilize that roadway in order to gain access to the Cowichan River, which at that location is surrounded by high banks.

There is a bend in the river in which are situated some deep river pools suitable for swimming, depending on the level of the river at any given time of the year. [ 47 ] These pools are commonly used by the residents of the area and were referred to in the evidence as a “swimming hole.” The Complainants and the Co-Accused are all regular users of that portion of the Cowichan River.

I understand that notwithstanding that this location is adjacent to the Cowichan River Park, it is not easily accessible by those who are not resident in the neighbourhood and who may not have riverfront access. [ 48 ] Notwithstanding my suggestions made during the course of the trial, no photographs or maps depicting the relative locations of the various properties and the scene at the Cowichan River where the events giving rise to the charges were ever presented into evidence.

Therefore, I must rely upon the descriptions provided in the oral evidence. [ 49 ] As I understand it, there is a pathway which, for the most part, runs along the bank of the Cowichan River above the high water mark, but at some points dips below the bank onto a beach area that is adjacent to the river bank.

The river bank path connects with the bottom of the Complainants' access path from their residence as well as the other paths that provide accesses from the other private residences located along that side of the Cowichan River. [ 50 ] Immediately beside the property owned by Bobby Bergman and to the west is the property owned by Michael Hodding. The swimming hole is located immediately adjacent to Mr. Hodding’s property. There is a gravel beach area some 20 to 30 feet wide adjacent to the swimming hole, and the gravel beach stretches up the side of the bank of the river.

Immediately upstream from the swimming hole is the Cowichan River Park. [ 51 ] Therefore, for the Complainants to access the beach and the swimming hole, they must pass on foot heading upstream from the intersection of their path at the river bank and walk along the river bank path located in front of Bobby Bergman’s property, which takes them through the river bend.

That walk covers a distance of about two hundred feet. [ 52 ] As I understand it, near the swimming hole area, but still adjacent to the far end of the beach, are some shallower river pools, again, their shallowness being dependent on the seasonal depth of the river at any given time. Those shallower pools are in the upstream direction away from and not towards the Complainants’ property. [ 53 ] There has been significant strain in the relationship as neighbours between the Complainants on one hand and the Co-Accused on the other preceding the events giving rise to these charges.

Those strains became apparent a couple of years ago very shortly after the Co-Accused moved into the rental house across the street from the Complainants. Mr. Whitehead and Mr. Bergman had what I take to be unhappy discussions when Mr. Whitehead approached Mr. Bergman, on Mr. Bergman’s property, expressing his concerns about what Mr. Whitehead took to be a deer blind constructed by Mr. Bergman on the Co-Accused’s property or possibly even on Mr. Whitehead’s property.

A deer blind is a shelter to conceal a hunter engaged in deer hunting. [ 54 ] At the time of the incident at the Cowichan River, the Complainants were swimming at the swimming hole when the Co- Accused arrived on the scene with their two dogs via the Bobby Bergman property.

The incident giving rise to the charges flowed almost immediately from this point in time. [ 55 ] Immediately following the incident at the Cowichan River, neither the Complainants nor the Co-Accused called to report anything to the police. [ 56 ] Much later on in the day of the incident, the Complainants presented themselves at the Cowichan District Hospital emergency department in Duncan, BC, and sought medical attention for Mr. Whitehead. It was following a medical examination of Mr. Whitehead by Dr. Isabel Rimmer, at the suggestion of Dr.

Rimmer and with the approval of the Complainants, that a call was made by hospital staff to the Duncan/North Cowichan RCMP detachment. [ 57 ] RCMP Constable Todd Bozak was dispatched and attended at the Cowichan District Hospital to receive information, and, thereafter, he commenced a police investigation. THE CROWN’S CASE [ 58 ] Crown called five witnesses, namely: 1. The Complainant Warrick Whitehead 2. The Complainant Janice Whitehead 3. Constable Todd Bozak 4. Michael Hodding 5. Dr. Isabel Rimmer Evidence of the Complainant - Warrick Whitehead [ 59 ] Mr. Whitehead testified that he first saw Mr.

Bergman arrive at the scene through the Bobby Bergman property, heading towards the river bank trail, then turn and proceed through the trees, which I understand to be bush-like, and then walk towards the Complainants' property.

[ 60 ] At that point, Mr. Whitehead says he observed, from approximately 200 feet away, that Mr. Bergman came “down to the trail,” which Mr. Whitehead said was the trail located on the top of the river bank. He says Mr. Bergman put something on the trail and then proceeded back through the bush towards Bobby Bergman’s property. Then, about two minutes later, he and Ms. Peterson, along with their two dogs, came down the driveway located on the Bobby Bergman property together to the beach area. [ 61 ] Mr. Whitehead says that he and Mrs.

Whitehead went swimming for about 5 minutes in the swimming hole, got out, and were drying off when he observed Ms. Peterson in the river with the dogs. I understand that he observed Mr. Bergman close beside. They were some 20 to 30 feet away. [ 62 ] Mr. Whitehead says that with respect to the dogs being in the river, he called out and told them that “they should not be doing that.” In cross-examination, he amplified on his comments, saying that he had concerns and expressed them about the low river flow and the fact that the dogs were being bathed with “soap” in the river.

He further stated that he felt it necessary to make his views known to the Co-Accused because people may listen if they are told that they may be doing harm to somebody else or something else. [ 63 ] He said that Mr. Bergman became angry, but he could not hear what was being said. He did not hear Ms. Peterson say anything. [ 64 ] The Complainants then started to walk towards the Co-Accused and their two dogs on the beach area. Mr. Whitehead says that at that point Mrs. Whitehead went down to the beach area to speak to the Co-Accused. He was unable to hear what was being said but got the gist that Mrs.

Whitehead was speaking to them about bathing the dogs in the river. [ 65 ] He then proceeded along the river bank trail towards his own property; a distance he placed at some 20 feet towards a location on the river bank trail to find out what it was he had seen Mr. Bergman place on the trail, suspecting that it was dog excrement.

He testified that two days prior he had stepped on dog excrement while using the trail on the river bank while proceeding from his own property towards the swimming hole. [ 66 ] He says that he located some warm, fresh, dog excrement which he picked up in his bare hands and then walked back along the same trail, in an upstream direction towards the same location where his wife and the Co-Accused were standing, a distance of some 30 to 40 feet.

He could not explain why he picked up the fresh dog excrement in his bare hands, saying on cross-examination that he had not thought that through, while at the same time indicating that he and Mr. Bergman had previously had unhappy differences, that Mr. Bergman had a temper, and that he was afraid of Mr. Bergman. Mr. Whitehead denied that his actions of bringing the dog excrement towards Mr. Bergman were aggressive in nature. [ 67 ] He testified that when he was, again, within “probably 20 feet” of them, Mr.

Bergman came: . . .yelling and screaming at me , excuse me, fucking this, you’re - fucking that, and so on and so forth and very, very angry. And he just came straight at me, and then he just hit me in my left ear. [See Transcript of Evidence: July 6, 2017, pg. 74, ll. 18 to 24] [ 68 ] Mr. Whitehead says that he was struck by Mr. Bergman’s fist on his left ear in which was located his hearing aid, thereby causing damage to the hearing aid and knocking it out of place so that it was dangling from his ear. [ 69 ] Mr. Whitehead says that he was hit hard enough to be knocked out.

He also testified that at the time he was struck, his hands were down at his side and he thought the dog excrement was still in his hands. I understand from Mr. Whitehead’s evidence that before he was hit, and as he observed Mr.

Bergman coming towards him, he thought that he should relax based upon his experience many years ago when he did what he described as “environmental work” which he further described as “trying to save parks.” It was during that period of time he apparently learned that in confrontational situations “not to do anything that could make matters worse.” He denied raising his hands as Jesse approached and denies saying anything to him. [ 70 ] He did not recall hitting the ground. When he regained consciousness, Mr.

Whitehead says that he was face down, looking towards the river, and his wife was down beside him and attending to him. [ 71 ] He says that he was dazed, and he started to get up when he felt a beer being poured over his head. He presumed it was Mr. Bergman who was doing that, as he continued to yell angrily at Mr. Whitehead, but then says that when he got to his knees and looked up, it was Ms. Peterson standing above him. He testified that it was she who was pouring a can of Lucky Lager beer on him and that he observed her doing so. He did not know where Mr.

Bergman was because he could not see him, and due to his significant hearing impairment, he was unable to discern the location from Mr. Bergman’s yelling. [ 72 ] Mr. Whitehead testified that the following then occurred: But he was still very, very angry. And I remember him saying something about, 'Don’t touch my fucking girlfriend,' or, you know, something along that lines. And then immediately I just got hit in my left ribs, and it was a very, very powerful punch. [See Transcript of Evidence: July 6, 2017, pg. 77, ll. 26 to 30] [ 73 ] Mr.

Whitehead also says that he had a recollection while he was lying on the ground that dog excrement was “put on” him, but he could not be certain because of his dazed state. [ 74 ] I note in cross-examination that he was more certain that it occurred when he stood up and was not lying on the ground that he became aware of beer being poured on his head, and it was at that time he became aware that the dog excrement had been placed upon him. He says he did not observe who did it while he was lying on the ground, but when he was standing, Ms.

Peterson was there in front of him and it was her that he blamed for the beer pouring and the smearing of dog excrement on him.

[ 75 ] Mr. Whitehead said that he did not see who hit him in his left ribs but that it was a very hard blow and it hurt. He said that Mr. Bergman was near him. [ 76 ] Mr. Whitehead denied that he touched Ms. Peterson at all. [ 77 ] Once he had received the blow to the ribs, Mr. Whitehead said that Mr. Bergman came at him, so Mr. Whitehead, by way of a retreat, started running down towards the river and into the river, in what I understand to be in the lower and shallower end of the swim hole. [ 78 ] He moved a distance of some ten feet, such that the water was up to his knees. He states that Mr.

Bergman continued to hurl curse words at him, further stating that he did not say anything to Mr. Bergman during this altercation. [ 79 ] Mr. Whitehead then described how Mr. Bergman and Ms. Peterson picked up their beer and starting walking off downstream towards Bobby Bergman’s property. At that point, Mr. Whitehead says that he came out of the water and started walking upstream when “It looked like he [Mr. Bergman] sent the dog straight towards me." [ 80 ] Mr. Whitehead then described the following occurrence: . . .and I picked up a small stick and I thought, no, that is what you should not do.

And I threw the stick back into the river and the dog just went right past me, so the dog did not touch me. [ 81 ] Mr. Whitehead says that Mr. Bergman kept coming back towards him in short segments so that he continued to retreat by moving upstream away from Mr. Bergman, stating that he “felt very threatened.” [ 82 ] At that point, Mr. Whitehead turned and followed a trail up through the trees to Michael Hodding’s property. He located Mr. Hodding and asked for his assistance. Mr. Hodding then escorted Mr. Whitehead back down to the river from his residence where they located Mrs. Whitehead.

The Co-Accused had departed the scene. [ 83 ] In examination-in-chief, Mr. Whitehead stated that he and Mrs. Whitehead then went home. He said that they were both smelly and soiled from what I understand to be the dog excrement. That necessitated that they both shower. [ 84 ] They apparently then discussed the incident that had occurred. [ 85 ] He testified that they did not call the police to report the incident, citing an earlier incident with Mr. Bergman. Later in the evening, because of pain and continuing discomfort in his ribs, Mrs. Whitehead took Mr.

Whitehead to the Cowichan District Hospital emergency ward for medical attention. They also met with Constable Bozak and provided a police statement. [ 86 ] Upon direction from Constable Bozak, they photographed the bruising on Mr. Whitehead’s left ribs. Those photos were taken very shortly after the incident and they showed what Mr. Whitehead described as “faint bruising.” [ 87 ] Mr. Whitehead testified that he continued to suffer pain and discomfort in his rib area for a month and was treated with non- prescription painkillers.

He further testified that since being struck in the left ear, his hearing has further deteriorated to the point that without his hearing aid, his “hearing has totally disappeared.” [ 88 ] Mr. Whitehead stated clearly in his evidence that he both smelled of dog excrement and had dog excrement smeared upon him at the riverside. [ 89 ] In both examination-in-chief and in cross-examination he:

a) denied making any threats to either of the Co-Accused;

b) denied that as he was approaching Mr. Bergman with the dog excrement in his hands and denied that he motioned as if he were going to throw it at Mr. Bergman;

c) denied that he then proceeded to wipe the dog excrement he held in his hands over a bag and clothing belonging to the Co-Accused that had been left on a chair close to the Bobby Bergman property;

d) denied that he then picked up a stick and held it in such a fashion that he was going to strike Mr. Bergman and denied that Mr. Bergman said, “Go ahead, hit me,” and further denied that he then hit Mr. Bergman with the stick;

e) denied that in response to being hit, Mr. Bergman said, “Go ahead and hit me one more time and I’ll hurt you”;

f) denied that at that point he dropped the stick and then proceeded to wipe dog excrement on Mr. Bergman’s T-shirt;

g) denied that it was only at that point that Mr. Bergman slapped Mr. Whitehead on the side of the head and knocked Mr. Whitehead to the ground, whereupon Mr. Whitehead stood back up, “jumped up in the air, and [he] went down like a soccer player faking that [he was] hurt”;

h) denied that he lay in a fetal position on the ground for a short time and then got up and struck Ms. Peterson on the side of the head; [See Transcript of Evidence: July 6, 2017, pgs. 119 to 121]

i) denied that he tried to kick at the Co-Accused’s dog as it went past him, chasing the stick that Mr. Whitehead had picked up and thrown over his shoulder, or in any way made contact with the dog or attempted to do so; and

j) denied that it was a large stick that he had picked up, stating that it was very small. [See Transcript of Evidence: July 7, 2017, pgs. 7 to 9] [ 90 ] In his cross-examination Mr. Whitehead also testified about:

a) The initial meeting with Mr. Bergman that had become heated was about the deer blind and apparently Mr. Whitehead’s accusations that Mr. Bergman had been using his bow and arrow to shoot arrows on to the immediately adjacent Whitehead property or had been trespassing on that property without any permission to do so;

b) That Mr. Whitehead had previously called the police and conservation officers a number of times about Mr. Bergman, resulting in a number of attendances by those authorities at his residence in response to those complaints;

c) His suspicion that Mr. Bergman had placed dog excrement on the Whitehead’s pathway in a triangle shape while the Whiteheads had been away on a Northern kayak trip;

d) He did not hear any specific threats that he could specifically recall but suggested that Mr. Bergman was continuously using “very threatening language” and “very, very violent type of speaking” with lots of “foul” language. [ 91 ] In cross-examination, it became clear that the Complainants had not called the police from Mr. Hodding’s residence, nor requested Mr. Hodding to do so, nor called from their own home after the incident. Mr. Whitehead suggested in his evidence that one reason he had not requested Mr.

Hodding to call the police, notwithstanding his allegations about just being assaulted and notwithstanding the fact that his wife was still in the presence of the Co-Accused, was his uncertainty as to whether Mr. Hodding actually had a telephone, noting that cell phone service is not available in their area. [ 92 ] Mr. Whitehead stated that he considered doing so but they did not call the police because they were concerned about repercussions from Mr.

Bergman. [ 93 ] Furthermore, from the time that they arrived home after the incident to the time that they eventually left for the hospital, they used their time to drive to and visit neighbours about half to one kilometre away to tell those neighbours that they (the Whiteheads) had not reported those neighbours to the Cowichan Valley Regional District (the “CVRD”) about the neighbours’ contentious use of their property, as apparently had been alleged by Mr. Bergman during the incident. Evidence of the Complainant - Janice Whitehead [ 94 ] Mrs.

Whitehead testified that as she and her husband were leaving the swimming hole, she went up to the Co-Accused as they were taking their dogs down to the river or were at that point in the river soaping up their dogs and said: “It’s not a good idea to be washing your dogs in the river because it's low this year.” [ 95 ] This comment was based upon her belief stated in cross-examination that the Cowichan River, which she describes as a “heritage river,” was at its lowest, the fish were struggling and the use of soap would add to problems in the river. [ 96 ] She testified that she did not hear her husband say anything to the Co-Accused but rather observed that he had continued to walk down the beach and river bank trail towards their own property. [ 97 ] At that point, she said the Co-Accused, and in particular Ms.

Peterson, made comments to the effect that: “We can fucking well do what we fucking well please. If you don’t fucking like it, you can fucking well report it.” Thereafter, the Co-Accused continued to admonish her for how they (the Whiteheads) “fucking report fucking everything.” [ 98 ] Immediately following this exchange, Mrs. Whitehead says that she continued to walk towards her property at which point she heard Mr. Bergman say: “If Warwick is carrying that dog poo back, I am going to kill him.” [ 99 ] She then observed that Mr. Whitehead was walking back in the direction of the Co-Accused.

She did not observe anything in his hands. Mr. Bergman ran towards Mr. Whitehead on an angle and intercepted him from slightly behind, and all of a sudden raised his fist and punched Mr. Whitehead in the left ear at which point Mr. Whitehead fell flat on his face and hit the ground on the beach area. [ 100 ] Mr. Whitehead stayed on the ground and was apparently unresponsive. Mrs. Whitehead said she moved away from Ms. Peterson, who was still in the river, went towards Mr.

Whitehead and went down on her knees beside him to administer to him. [ 101 ] At that point, she says she was punched quite hard in her mid-back under the shoulder blades by what she said was a closed fist. She did not observe the blow being administered because she was still attending to Mr. Whitehead who was prone on the ground, lying parallel to the riverside, with his feet pointing in the downstream direction towards the Complainant’s property. [ 102 ] She stated that her back was to the river and at this point, she says the Co-Accused were on the other side of Mr. Whitehead and to her right.

She described that as Mr. Whitehead got up to his hands and knees and was bent over, Ms. Peterson rubbed dog excrement that she had in her hands on his back and then poured almost a full can of Lucky Lager beer over his back. [ 103 ] As Mr. Whitehead stood up, Mr. Bergman was standing in front of him and punched Mr. Whitehead hard with a closed fist in the left rib area between his hips and his armpit. She denied observing Mr. Whitehead making any physical contact with either of the Co-Accused. [ 104 ] Following being punched in the ribs, Mr. Whitehead then turned and ran into the river.

She yelled at the Co-Accused about her intention to report them, and she indicated that the Co-Accused threatened to report them and to have them committed to the “fourth floor” which Mrs. Whitehead understood to be a threat to have them taken to the fourth floor of the Cowichan District Hospital which she says is the psychiatric ward.

[ 105 ] Mrs. Whitehead said that as she turned to go towards Mr. Whitehead, Ms. Peterson came up to her as she was turning around and proceeded to wipe more dog excrement on Mrs. Whitehead’s back with her two hands. She concedes that she did not see anything in Ms. Peterson’s hands as she approached and presumed that it was Ms. Peterson who had rubbed the dog excrement on her back because of Ms. Peterson’s proximity. [ 106 ] Mrs. Whitehead said after she observed the Co-Accused picking up their beer cans, placing them into a plastic bag and departing in the direction of the Bobby Bergman property. [ 107 ] Mrs.

Whitehead denied that she had in any way threatened either of the Co-Accused except with reporting them to the police or that she had any physical contact with Mr. Bergman or Ms. Peterson or made any threats to have physical contact with either of them. In cross-examination, she did indicate that she had pulled at Ms. Peterson’s clothing but only in an attempt to get Ms. Peterson away from Mr. Whitehead. [ 108 ] She continued upstream in the direction of the Hodding property at which point she met up with Mr. Whitehead and Mr. Hodding who were proceeding back towards the river area.

She stated that she did not tell Mr. Hodding about what had happened. [ 109 ] The Complainants returned to their own residence after taking a brief opportunity to clean some of the dog excrement off of themselves. They spoke about whether or not they should phone the police and report the incident but were “afraid” to do so because of an upcoming lengthy trip to New Zealand for a period of five months that was pending. [ 110 ] In particular, they were concerned about what Mrs.

Whitehead described as “reciprocal action” on the part of the Co-Accused, which I understand to mean something in the nature of repercussions or retribution from the Co-Accused. [ 111 ] Later in cross-examination, she amplifying on her evidence about previous actions against their property that they had endured, which had included having garbage left on their driveway and an exterior driveway sign damaged, apparently as a result of contact with a motor vehicle. [ 112 ] She denied that there was reluctance on their part to report the matters because of the threats made by the Co-Accused about reporting the Complainants to the authorities or because they were responsible for initiating various assaults on the Co-Accused or because such reports could lead to the admission of either of them to the psychiatric floor of the local hospital. [ 113 ] She also spoke in terms of the Complainants being in a state of shock and suffering from “post-traumatic stress syndrome” as reasons why they did not report the matter to the police at any time after returning home. [ 114 ] On cross-examination, Mrs.

Whitehead described that before proceeding home, she and Mr. Whitehead were covered in dog excrement which was “pretty potent” and they “smelled really, really bad.” Accordingly, they both went into the river for a quick clean up. [ 115 ] On cross-examination, she did confirm that shortly after returning home they were able to clean up, and they then did drive to visit the neighbour about the suggestions that the Complainants had reported those neighbours to the CVRD. [ 116 ] As the evening progressed, she said that Mr. Whitehead’s pain increased.

He had difficulty breathing and, as a result, they drove to the hospital. As far as her injuries, she says that she did suffer a bruised back, which I take it resulted from the punch, but the associated pain subsided after a couple of days and she did not take any painkillers. [ 117 ] In cross-examination, Mrs. Whitehead confirmed that they had previously made multiple calls to the police, which I understand occurred both before and after the incidences at the river, and those calls related to a range of matters, including the construction of the deer blind by Mr.

Bergman, damage to their property and gunshots being heard from a local hydro right of way. The impression that I am left with is that at least some of these calls related to the accused Mr. Bergman. [ 118 ] In cross-examination, Mrs. Whitehead did confirm that after returning home she called Bobby Bergman’s spouse, Tammy, for the purposes of requesting that they not permit Mr. Bergman or Ms. Peterson use of the access to the river through the Bobby Bergman property because of the incident that had just occurred.

She denied that she told Tammy that the Complainants did not want to get the police involved, but rather told Tammy that they had not decided whether or not to report the matter to the police. [ 119 ] In further cross-examination Mrs. Whitehead:

a) denied that she entered into the river beside Ms. Peterson and attempted to grab one of the dogs that Ms. Peterson was attempting to bathe;

b) denied that as Ms. Peterson tried to step out of the water, she, at least two times, attempted to step on Ms. Peterson’s sandals in order to prevent her from getting her sandals out of the water;

c) denied seeing Mr. Whitehead smearing dog excrement on the belongings of the Co-Accused, including the shirt of Mr. Bergman, nor picking up a stick and threatening Mr. Bergman, all of which it was suggested preceded any physical altercation between Mr. Whitehead and Mr. Bergman;

d) said that the initial blow administered by Mr. Bergman was a closed fist punch to the head and ear, which she equated with a hard punch or what she described as a “swat”;

e) denied that Mr. Whitehead got up off the ground and struck Ms. Peterson on the side of her face with a closed hand before Mr. Bergman punched Mr. Whitehead in the ribs;

f) denied that she immediately approached into close proximity to Ms. Peterson whereupon she took the blame for hitting Ms. Peterson

in order to cover up for her husband’s actions and further denied that it was at that point that Ms. Peterson said to her “Do not fucking touch me” and was, thereafter, pushed by Ms. Peterson whereupon Mrs. Whitehead stumbled backwards and fell on the ground and then Mrs. Whitehead got up and threatened to report them to the police; and

g) denied that Mr. Whitehead struck one of the dogs of the Co-Accused or attempted to do so. Evidence of Michael Hodding [ 120 ] Michael Hodding testified that he is a neighbour of the Complainants as well as the Co-Accused. He has known the Complainants for close to 40 years, as they were friends of his mother who previously owned and occupied the Hodding property. In his evidence, Mr. Hodding described the Complainants as being “avid ecologists” and accepted defence counsel Mr. Sheet’s characterization as being “aggressive ecologists.” [ 121 ] Mr.

Hodding said that based on his experience and information provided to him by the Complainants, they “tend to be confrontational over issues” and are not reluctant to express their views to others. [ 122 ] He has known the accused, Mr. Bergman, for approximately four years. He knows of the accused, Ms. Peterson, but apparently has not met her. [ 123 ] Mr. Hodding described that on the day in question, Mr. Whitehead arrived at the Hodding residence from the river. Mr. Whitehead’s appearance was consistent with having recently been swimming. He described Mr.

Whitehead as being “a little bit agitated” and was “sort of a little antsy and moving around a bit." [ 124 ] Mr. Hodding received a request from Mr. Whitehead, upon his arrival, to escort Mr. Whitehead to the Complainants’ home on the basis of Mr. Whitehead’s assertion that Mr. Bergman was not letting him go home. Mr. Hodding agreed to accompany Mr. Whitehead and they proceeded back down to the river which took about five minutes and which was a distance of some 100 to 200 meters, whereupon they encountered Mrs. Whitehead. [ 125 ] He described her as normal and calm. [ 126 ] Mr.

Hodding did not observe any injuries on Mr. Whitehead, nor on Mrs. Whitehead. [ 127 ] Crown elicited evidence from Mr. Hodding about any statements made by either of the Complainants about dog excrement, not for the truth of its contents but rather as to whether or not a statement had been made to Mr. Hodding by either of them. The evidence was accepted for that limited purpose. Mr. Hodding testified as follows: MR. CHEESEMAN: Q What was -- what was said about dog feces? A Jan said that she thought that Jesse's dogs had defecated on her -- on the -- their trail to the swimming pool.

And so subsequently, they -- she said she put it either on his backpack or in his backpack. Q She said she put it in there? A I -- she or they, I'm not sure. Q And whose backpack was she referring to? A Jesse's backpack, I think. That's what I understood. Q Did either Mr. or Mrs. Whitehead mention anything about having dog feces wiped on them? A No. Q And you didn't see any dog feces on them? A I did not notice anything, no. Q Did either one of them mention anything about beer being poured on them? A I do not recall. Q Did either one of them mention anything about being assaulted?

A Yes. [See Transcript of Evidence: July 6, 2017, pg. 32, ll. 12 to 34] [ 128 ] On this same basis, Crown elicited information about whether or not either of the Complainants had mentioned anything about an assault occurring. Mr. Hodding confirmed that both of the Complainants made statements to him about an assault occurring that is noted above. That is also noted in the transcript portion referred to above. Evidence of Isabel Rimmer

[ 129 ] Isabel Rimmer is a medical doctor who works at Cowichan District Hospital. She was not called by Crown nor was she qualified as an expert witness. Accordingly, the court permitted her to testify about observations she made about any bruises, cuts, injuries, or other things that she observed on or about either of the Complainants. Thus, her observations were based upon her non- professional and personal experience, and were not based nor accepted on the basis of her medical training. [ 130 ] Dr.

Rimmer testified that she met with the Complainants around 1:30 a.m. on August 23, 2016, in the emergency ward at Cowichan District Hospital. Dr. Rimmer took a medical history from both Complainants, which apparently included a description about what had occurred on the previous afternoon at the Cowichan River. She conducted a full medical examination of Mr. Whitehead and ordered x-rays of him which she studied when made available to her following her initial physical examination of Mr. Whitehead. [ 131 ] In the course of the medical examination, she observed that Mr.

Whitehead had significant bruising over the entire left pinna, being the exterior portion of the left ear with bruising over the entire ear. No injury to the ear canal was noted. She observed the broken hearing aid. [ 132 ] Dr. Rimmer noted that Mr. Whitehead was “exquisitely tender in the left lateral rib cage” but observed no bruising. That tenderness resulted in her ordering the x-rays. [ 133 ] Over-the-counter pain medications were prescribed for Mr. Whitehead. [ 134 ] Dr. Rimmer also examined Mrs. Whitehead.

No injuries were observed, but tenderness was noted over the right posterior chest (that is on her back) in the area of the right shoulder blade and below it. [ 135 ] When describing the demeanour of both of the Complainants during the course of the examinations, Dr. Rimmer said that there was an absence of drama and what she described as remarkable stoicism as they recounted the events that allegedly gave rise to the injuries. She specifically noted that Mr. Whitehead clarified that a scratch on his head was from brush clearing and declined to blame it on the events at the river. Dr. Rimmer found this unusual.

Dr. Rimmer contrasted the observed stoicism with her usual experience in treating persons who are involved in assaults. [ 136 ] With respect to Mrs. Whitehead’s demeanour, Dr. Rimmer stated she appeared more anxious than Mr. Whitehead. [ 137 ] In

summary, the Complainants’ demeanour was described by Dr. Rimmer in terms of them being: “frightened and anxious, nevertheless they were both very reserved and calm and stoic.” [See Transcript of Evidence: July 6, 2017, pg. 37, l. 47 and pg. 38, ll. 1 and 2] [ 138 ] As a result of her interaction with the Complainants, Dr. Rimmer expressed her recommendation to them that the police should be called, as I take it, to report the incidents at the Cowichan River. With the Complainants' permission, a hospital clerk then placed that call to the RCMP. Given the fact that Dr.

Rimmer started work at 12:30 a.m. on August 23, 2016, and she apparently made the recommendation about the Complainants contacting the police following the examination, I can only assume that the call to the police was made sometime on August 23, 2016. Evidence of Constable Todd Bozak [ 139 ] Constable Bozak was the investigating officer. He testified that he was dispatched to deal with this case at around 8 p.m. on August 22, 2016, and he apparently attended at the Cowichan District Hospital on August 22, 2016. He estimated that he first met with Mr.

Whitehead at the hospital around 9 p.m. that same evening of August 22, 2016. I note his arrival does not seem to be consistent with Dr. Rimmer’s testimony about when she saw and examined the Complainants and made her recommendation about calling the police. [ 140 ] As I understand his evidence, Constable Bozak took recorded statements from both of the Complainants later that evening. Based upon his review of the statement obtained from Mrs. Whitehead during the course of his testimony, Constable Bozak says he took Mrs.

Whitehead’s recorded police statement on August 23, 2016, in the early morning, around 3:06 a.m. [ 141 ] The evidence is unclear from Constable Bozak’s testimony as to the approximate time that Mr. Whitehead’s statement was taken, and it is also unclear as to the continuing timeframe that he was interacting with the Complainants while at the Cowichan District Hospital. [ 142 ] Constable Bozak testified that he did not observe any injuries on either of the Complainants and made no notes about any observed injuries. He did recall that Mr.

Whitehead appeared to be experiencing some soreness when he was moving around. [ 143 ] Constable Bozak was asked about the demeanour of the Complainants during his interaction with them at the hospital. [ 144 ] Constable Bozak testified that Mr. Whitehead was anxious about giving a police statement, and further described it as “reluctance” and being “worried.” Constable Bozak based that upon his observations of Mr. Whitehead’s speaking in a fast, rather than a normal tone, and as I take it, Constable Bozak was basing his observations on the topics about which Mr.

Whitehead was expressing concern. [ 145 ] He described Mrs. Whitehead as she “seemed to be having more of her wits about her” which I understand as being a comparison to Mr. Whitehead. Constable Bozak testified that Mrs. Whitehead was apparently worried about her husband but was better at holding her emotions together, again, I take it, in comparison to her husband. [ 146 ] I understand that there were no specific notes made by Constable Bozak about these observations of demeanour. [ 147 ] Constable Bozak requested photographs from the Complainants regarding bruising on Mr.

Whitehead’s left ribs and received that from them the next day. In the course of his investigation, he did not visit the scene at the Cowichan River where the events were

alleged to have occurred. [ 148 ] He only obtained a police statement from Michael Hodding at the request of Crown on March 22, of 2017, some seven months after the incident. [ 149 ] In cross-examination, Constable Bozak was asked this question and provided this answer about his ability to recall, and, as I understand it, the conclusion that he had formed as a result of speaking with the Complainants: Q You -- you thought these poor old people got beat up down at the river, and this was just a horrendous thing, and it stuck in your mind, is that right?

A Absolutely. [See Transcript of Evidence: July 6, 2017, pg. 16, ll. 17 to 21] [ 150 ] Constable Bozak and another RCMP member attended at the Co-Accused’s residence and arrested Mr. Bergman on the evening of August 23, 2016, at 9:36 p.m. No other evidence about that arrest was elicited in either examination-in-chief or in cross-examination that being the arrest of Mr. Bergman or Ms. Peterson. THE DEFENCE CASE Evidence of the Accused - Courtney Peterson [ 151 ] The accused, Ms. Peterson, testified that she and her Co-Accused, Mr.

Bergman, had an early dinner on the day in question and then decided to take their two Golden Retrievers down to the Cowichan River for a swim and a wash. They obtained permission from Bobby Bergman to cross over his property in order to gain access to the river and to the swim hole. I understand that all of this was a common occurrence. [ 152 ] Knowing that the female dog likes to defecate in Bobby Bergman’s field, they took a shovel with them for clean-up purposes, together with a little bag which contained one beer. Mr. Bergman had another beer in his hand. Ms.

Peterson was not drinking alcohol. [ 153 ] She testified that it is quite usual that the dogs will run ahead of their owners and jump in the water before their owners arrive. The dogs running ahead occurred on this day. [ 154 ] The Co-Accused were unaware that the Complainants were at the intended destination on the Cowichan River. Once the Co- Accused became aware of the presence of the Complainants, they located themselves a distance of 30 to 50 feet away from them. [ 155 ] Ms. Peterson was in the process of completing the bathing of the first dog with an all-natural or organic dog shampoo. Mr.

Bergman was standing beside her with a ball which he would throw into the river for the dogs to fetch, which was a means by which the dogs would then get rinsed off. [ 156 ] Just as she was about to start bathing the second dog, Mr. Whitehead approached them aggressively, demanded that they stop bathing the dogs in the river and made a comment to the effect that he knew that their dogs were “shitting on our trail.” Mr. Whitehead continued to walk away. [ 157 ] At that point, Mrs. Whitehead arrived and similarly approached the Co-Accused about bathing the dogs in the river. Ms. Peterson testified that Mrs.

Whitehead told her as follows: “Take them the fuck out of the water.” Ms. Peterson says that Mrs. Whitehead then came up in front of her and attempted to reach in and grab towards the head of the dog which was positioned between Ms. Peterson’s legs facing towards the river bank. Mrs. Whitehead was unsuccessful in her attempts to grab that dog. [ 158 ] Ms. Peterson testified that Mrs. Whitehead then stepped on her sandals in the water and refused to comply with Ms. Peterson’s request that she get off her sandals until after the second request. [ 159 ] It was at that point that Ms. Peterson observed Mr.

Whitehead walking quickly back towards the Co-Accused's belongings which had been left on a chair adjacent to the property owned by Bobby Bergman and located approximately 20 feet away. [ 160 ] She observed Mr. Whitehead proceed to smear dog excrement that he held in his hands all over their towels and tote bag located on the chair. [ 161 ] Mr. Bergman proceeded in the direction of Mr. Whitehead and was nearing him when she observed that Mr. Whitehead picked up a stick and started to swing it at Mr. Bergman with one hand, and with his other hand, he was hitting Mr.

Bergman on the shoulder, resulting in dog excrement being spread all over Mr. Bergman’s T-shirt. [ 162 ] She then heard Mr. Bergman say: “Do not fucking touch me” and then, with an open hand, slapped Mr. Whitehead on the side of the face. At that point she says that Mr. Whitehead jumped in the air and then fell back to the ground, lying on his side with his hands up around his face. She described it as a “very dramatic fall.” She said that Mr. Whitehead was awake, his eyes were open and he was moving. [ 163 ] Mr. Bergman was standing over him, exhorting Mr. Whitehead to get up and “stop faking it.” Thereupon, Ms.

Peterson picked up what she described as an “empty beer can” and poured the remaining contents onto the prone Mr. Whitehead. [ 164 ] Ms. Peterson moved towards their belongings to pick them up and attempted to shake off the dog excrement. She told Mr. Bergman that they needed to leave and as Ms. Peterson was walking around the prone Mr. Whitehead, she says he jumped up and punched her on the left side of the face. She closed her eyes and with an expletive exclaimed her astonishment that Mr. Whitehead had just hit her.

[ 165 ] When she opened her eyes, Mr. Whitehead was not there but rather she observed Mrs. Whitehead about eight to ten feet away “speed walking” towards her, saying to Ms. Peterson “No, I hit you” which assertion Ms. Peterson rejected in clear responsive terms, yelling at Mrs. Whitehead and saying that it was Mr. Whitehead that had hit her. [ 166 ] Ms. Peterson testified that she was shocked and scared by the fast approach of Mrs. Whitehead and uncertain but afraid about what Mrs. Whitehead was going to do, and, in particular, afraid that Mrs. Whitehead was going to hit her. Ms.

Peterson said that she did not have an opportunity to retreat but, rather, when Mrs. Whitehead was literally within a couple of inches of Ms. Peterson’s face, Ms. Peterson pushed Mrs. Whitehead away as hard as she could, resulting in Mrs. Whitehead moving backwards and landing on her buttocks on the ground. [ 167 ] Ms. Peterson said that she then turned around to see where Mr. Bergman and the dogs were, whereupon she observed that Mr. Whitehead was lying on the ground behind her. She is uncertain how he got there. She also observed that Mrs. Whitehead had moved back towards the water’s edge. [ 168 ] Ms.

Peterson called for the dogs in order to depart. The older dog sauntered out of the water in front of Mr. Whitehead, who was apparently standing at that point and was behind the dog, at which point Mr. Whitehead took a few steps towards the dog and administered a kick so hard that he fell on his own buttocks. Ms. Peterson says that Mr. Whitehead made contact with the dog’s rear, causing the dog to yelp. [ 169 ] At that point, Mr. Bergman went back towards Mr. Whitehead, telling him: “Do not ever fucking touch my dog again." [ 170 ] Ms. Peterson says that Mr.

Whitehead’s response was to pick up another stick, swing it at Mr. Bergman, and drop it immediately and then run up into the bushes. [ 171 ] Ms. Peterson says that she and Mr. Bergman started up towards the Bobby Bergman residence when she realized that they had left a bottle of dog shampoo on the beach and told Mr. Bergman so. From her vantage point, she saw Mr. Bergman move quickly towards the bottle and also observed Mrs. Whitehead start to try to move towards the same bottle by taking approximate five steps, at which point Mr. Bergman passed her and retrieved the bottle. [ 172 ] Ms. Peterson and Mr.

Bergman then continued towards the Bobby Bergman residence. There they encountered Tammy and other Mr. Bergman family relatives. Apparently, one of the relatives could observe the red marks on Ms. Peterson's ear and cheek (but without any bruising) and that Ms. Peterson said it was as a result of being struck by Mr. Whitehead. Ms. Peterson and Mr. Bergman told the relatives what had occurred. Later, they heard from Bobby Bergman that Mrs. Whitehead had contacted Tammy and indicated that they, the Complainants, did not want the police to be involved. The next day, both of the Co- Accused were arrested. [ 173 ] Ms.

Peterson then testified that they had left their tote bag and Mr. Bergman’s shirt, both soiled by Mr. Whitehead with dog excrement, downstairs in their residence. [ 174 ] The next day they placed these items, still containing the dog excrement, into a plastic bag, because of the unpleasant smell and then stored them. They did so on their understanding that the existence of these items would be useful to them in the future if the matter proceeded to criminal charges or otherwise. [ 175 ] Photographs taken in the midst of the trial of the tote bag and of the T-shirt were admitted into evidence.

The court did not permit the original items to be introduced as exhibits because of the biohazard risks posed by the items. [ 176 ] Ms. Peterson denies that she poured beer or wiped dog excrement on Mr. Whitehead and further denied she ever rubbed dog excrement on Mrs. Whitehead. Ms. Peterson denied that there was any physical contact with Mrs. Whitehead other than when she pushed Mrs. Whitehead away from her as described above. [ 177 ] Ms. Peterson said that she and Mr.

Bergman did not report the incident to the police based upon their concerns that the police would believe the Complainants over them. [ 178 ] Parenthetically, I note that based upon Constable Bozak’s comments about the conclusions that he had come to very early on in his investigation, this concern seems to have some foundation. [ 179 ] Ms. Peterson also confirmed that she, Ms. Peterson, had not disclosed to the police that came to their residence about the existence of the dog excrement covered items prior to their arrest or at any time afterwards. [ 180 ] In her evidence, Ms.

Peterson stated that until the trial of this matter, they were unaware of any concerns of the Complainants about dog excrement being deposited by their animals on the Complainants’ property, and as I understand it, including the various trails. She candidly admitted that the fresh dog excrement could have been deposited by her dogs but noted that it normally occurred on the Bobby Bergman property. She denied that Mr. Bergman had ever purposefully deposited dog excrement on the Complainants' property. [ 181 ] She was very much aware of the strained relationship with the Complainants and with Mr.

Bergman which she said started over the issue of the deer blind and Mr. Whitehead’s assertion that it was located on his property. Ms. Peterson also said that there was also an issue between Mr. Bergman and Mr. Whitehead when Mr. Bergman blocked off the trail made by Mr. Whitehead across the Co- Accused’s property which was apparently created when Mr. Whitehead was walking from his residence to the properties immediately adjacent to the Co-Accused’s property. In the course of these interactions, she denies that Mr. Bergman either got upset or was frustrated with Mr. Whitehead.

Evidence of the Accused - Jesse Bergman [ 182 ] Mr. Bergman’s version of events leading up to his arrival at the scene on the Cowichan River along with Ms. Peterson and their two Golden Retrievers is essentially in keeping with the evidence provided by Ms. Peterson.

[ 183 ] Mr. Bergman testified that on the day in question, the two dogs had run ahead of him and Ms. Peterson and had turned up what I understand to be the riverside trail heading towards the Complainants' property. Mr. Bergman said that he went after them, cutting through the bush heading towards the Complainants' property for a short distance. The dogs returned in fairly short order. He testified that he was unaware that the dogs had defecated on the trail leading towards the Complainants' property.

He further denied that he had deliberately placed dog excrement on the trail. [ 184 ] Similarly, his evidence is in keeping with the evidence provided by Ms. Peterson about the dogs' bathing procedures that they used, although he noted that on this day, he was throwing rocks rather than a ball in order to play with the dogs and to encourage them into the water for rinsing purposes. [ 185 ] Mr. Bergman described that both of the Complainants came storming towards them, telling them to get their dogs out of the river, using the words “right fucking now.” [ 186 ] Mr. Bergman said that Mr.

Whitehead split off and continued down the trail while Mrs. Whitehead was confronting them about, and objecting to, bathing their dogs in the river. Notwithstanding that, both he and Ms. Peterson told Mrs. Whitehead to leave with her husband. Mrs. Whitehead persisted and it is at that point Mr. Bergman says that Mrs. Whitehead stepped on Ms. Peterson’s sandals. [ 187 ] Mr. Bergman said that he then observed Mr. Whitehead returning up the trail, first observing him from being a distance of some 30 feet and that when Mr. Whitehead was approximately 15 feet away he observed that Mr.

Whitehead was holding two handfuls of dog excrement. It was at about this point that Mr. Whitehead was yelling: “Your fucking dog is shitting on our fucking trails.” [ 188 ] Mr. Bergman, based upon motions that were made by Mr. Whitehead, believed that Mr. Whitehead’s intention was to throw the dog excrement at them and, therefore, he said to Mr. Whitehead: “If you fucking throw that at me, I am going to hurt you." [ 189 ] Mr. Bergman moved towards Mr. Whitehead but Mr. Whitehead proceeded over to, and, according to Mr.

Bergman, for about 10 seconds, was wiping the dog excrement on their personal belongings, including a tote bag of towels and a beer which were located on a chair approximately 10 feet away. [ 190 ] At that point Mr. Bergman said Mr. Whitehead picked up a 1 ½ foot long by 2 inch thick stick and started to swing it at him “like trying to fight me with it.” [ 191 ] In response to that action, Mr. Bergman said: “If you hit me with that, I am going to hit you back.” Mr. Whitehead then hit Mr. Bergman on the arm with the stick, dropped the stick, and then Mr. Whitehead went to slap Mr.

Bergman in the face with the dog excrement in his hand, missed his face and rubbed it down the shoulder of Mr. Bergman’s T- shirt and onto his arm. [ 192 ] At this immediate point, Mr. Bergman said that he slapped Mr. Whitehead with what I understand to be an open hand on Mr. Whitehead's left cheek. He said it was “not too hard, but hard enough.” Mr. Bergman denied that he struck the left ear. [ 193 ] He also denied punching Mr. Bergman in the head and further denied threatening to kill Mr. Whitehead at any time. [ 194 ] After striking Mr. Whitehead, Mr. Bergman testified that Mr.

Whitehead had backed away approximately 10 feet, jumped up and landed on the ground on his side, and was tightening up in a fetal position. [ 195 ] It was at that point that Mr. Bergman said he picked up the spilled can of beer off of the ground and poured the remaining contents onto Mr. Whitehead’s head, saying words to the effect: “Get up, you are faking it. We all know you are faking it.” [ 196 ] Mr. Bergman conceded that at the time that he poured the beer onto Mr. Whitehead, Mr. Whitehead was not moving or taking any threatening action and was not moving in any such manner. [ 197 ] It was at that point Mr.

Bergman says Mr. Whitehead jumped up off the ground and punched Ms. Peterson on the side of the face from behind as she was walking by carrying their soiled personal belongings. [ 198 ] Mr. Bergman says that having landed the first punch, Mr. Whitehead then continued to attempt to swat at Ms. Peterson's head, at which point Mr. Bergman stepped forward and pushed Mr. Whitehead away, causing him to stumble, and then delivered a punch to Mr. Whitehead’s ribs, explaining he did so because Mr. White had attacked his fiancé, and as I take it, was continuing to try to hit her. It was at this point that Mr.

Bergman was expressing disbelief to Mr. Whitehead that he “had hit a girl.” [ 199 ] Mr. Bergman says that after landing the blow to the ribs, Mr. Whitehead went down to the ground on one knee but got up immediately and then moved away. [ 200 ] At that point, he observed Mrs. Whitehead moving towards Ms. Peterson, saying that it was she who had hit Ms. Peterson and observed that Ms. Peterson pushed Mrs. Whitehead away, with the result that Mrs. Whitehead fell onto the ground. Mr. Bergman said that Mrs. Whitehead had her hands out as she swiftly approached Ms. Peterson, all in a manner that Mr.

Bergman interpreted as coming to attack Ms. Peterson. [ 201 ] Mr. Bergman then similarly described Ms. Peterson’s version of Mr. Whitehead’s attempting to kick the Co-Accused’s dog as it was passing by, but saying that he and Ms. Peterson had started to clean themselves up near the riverside when this occurred. [ 202 ] Further, he stated that Mr. Whitehead had only grazed the dog, causing her to yelp, but also stated that Mr. Whitehead appeared to miss the kick and fell on his back. [ 203 ] Mr. Bergman said that he “stormed” towards Mr.

Whitehead, who, again, picked up a larger stick and “tried to fight me,” but he quickly dropped the stick, turned and ran upstream into the bushes. Mr. Bergman apparently was not struck by the stick at that time. [ 204 ] Mr. Bergman says that as they started to depart, he saw the remaining bottle of dog shampoo on the beach which caused him to

run down past Mrs. Whitehead, who he says was starting to move quickly towards it also, with a short number of steps but she stopped. He was able to beat her to it. [ 205 ] Mr. Bergman says they exchanged mutual threats about reporting each other to the police, and he made his comment about the Complainants both deserving to be committed to the psychiatric ward on the fourth floor of the local hospital. [ 206 ] Mr. Bergman also gave a very similar version to that of Ms. Peterson about meeting up with his family at the Bobby Bergman residence and receiving word of Mrs.

Whitehead’s apparent call to the Bobby Bergman residence with an indication that they were not calling the police. [ 207 ] Mr. Bergman confirmed that he did not report these incidences to the police and that he, prior to this incident, had no reason not to trust the police, and he had no reason to think he would not have been believed had he called the police. He said that he told the police about the soiled garments, but they were not interested. [ 208 ] In cross-examination, he also conceded that the location where he believed Mr.

Whitehead smeared dog excrement on his T-shirt revealed little remaining evidence of it in the area where he believed it was smeared, but he also noted that the T-shirt had been sitting in a bag for over a year and that there was a possibility that some of the dog excrement could be found in that bag. [ 209 ] Mr. Bergman did provide testimony regarding the strained relationship with both of the Complainants preceding these events. Mr. Bergman said that it started immediately upon Mr. Whitehead’s attending at their residence to introduce himself upon their arrival into the neighbourhood. Mr.

Whitehead then returned some ten minutes later screaming about a tree that Mr. Bergman had cut on his own property for use as a hunting blind and telling him that he could not shoot guns back there, when, in fact, that was not Mr. Bergman’s intention. [ 210 ] He also testified about an incident when Mr. Whitehead stole a foam deer from the back of Mr. Bergman’s property. He said that this was captured on a video trail cam. The Complainants were confronted by Mr. Bergman with the pictures, and he demanded that they return the property to him.

He says they were both livid at him, and both were screaming in his face, especially Mrs. Whitehead. When Mr. Bergman said he threatened to call the police, they returned the item to him and then, he says, they continued thereafter to call the police on him. [ 211 ] I note that this particular set of circumstances about the alleged theft and return of the foam deer was not put to either of the Complainants in examination-in-chief nor in their cross-examination and, accordingly, the reliance upon it can be very minimal, if any, or at all. THE APPLICABLE LAW Applicable Provisions of the Criminal Code [ 212 ]

Section 266 states that everyone who commits an assault is guilty of an indictable offence for a term not exceeding five years, or an offence punishable on

summary conviction. Crown has proceeded summarily in this matter. [ 213 ] Other relevant provisions are found in s. 265 of the Criminal Code and ss. 34 and 35 . [ 214 ]

Section 265 provides, in part, as follows:

(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 ...

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the Complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief. [ 215 ] Another important

section is s. 267 of the Criminal Code which relates to assault with a weapon or causing bodily harm which reads as follows: 267 Every one who, in committing an assault,

(

a) carries, uses or threatens to use a weapon or an imitation thereof, or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [ 216 ] Another relevant

section is s. 264.1 of the Criminal Code which reads in part as follows: 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; (

b) to burn, destroy or damage real or personal property; or (

c) to kill, poison or injure an animal or bird that is the property of any person.

(2) Every one who commits an offence under paragraph (1)(

a) is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months.

(3) Every one who commits an offence under paragraph (1)(

b) or (c) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. [ 217 ] Also of relevance to this case are the provisions of ss. 34 and 35 of the Criminal Code , as I have noted above, which read as follows: 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, ag

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