R. v. M.E.H. Date:, 2016 BCPC 290

Citation: R. v. M.E.H. Date: 20160923 2016 BCPC 290 File No: 4077-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.E.H. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: T. Morgan Counsel for the Defendant: D. Marion Place of Hearing: Campbell River , B.C. Date of Hearing: July 29, 2016 Date of Judgment: September 23, 2016

INTRODUCTION: [ 1 ] As a result of events on the afternoon of April 24, 2015, M.E.H. is charged with assaulting and uttering threats to cause death or harm to his sister, S.W.. [ 2 ] Although M.E.H. has his own residence, he was being paid to housesit in his mother's home while she was away and has his own bedroom there. S.W. normally lives in Victoria and stopped by for a visit with her mother that afternoon. Upon finding her mother away, she stayed to watch a movie and visit with her brother.

Things were amicable until a disagreement arose over M.E.H. cooking marihuana oil with rubbing alcohol in a pan on the stove. [ 3 ] S.W. did not approve of these actions and was concerned about the potential fire hazard as well as the risk to health that the fumes from the alcohol presented. A heated argument began when S.W. insisted that her brother use fans to dispel the fumes and cook the oil safely. He refused to do so. At one point when her brother was not in the kitchen, she took the pan off the stove and put it in the dishwasher. [ 4 ] There are two different versions of events.

S.W.’s evidence is that M.E.H. became so angry over what she had done that he became extremely aggressive, put his arm around her neck in a chokehold and threatened her. She testified that they fell together to the floor. She grabbed the pan and after striking her brother twice, he released his hold. She managed to get away, ran to a bedroom and called 911. M.E.H. left the house during the call and was subsequently arrested. [ 5 ] On the other hand, M.E.H.’s evidence is that he asked his sister to leave the house many times but she refused to do so.

He acknowledges that there was an argument over the marihuana oil but says that, in self-defence, he put his arm around his sister’s neck only after she started hitting him first with the pan. He also says that he was defending the property, entitled to have her leave at his request and was, in both circumstances, entitled to use the reasonable force that he did. He raises the same defence to the charges of uttering threats to cause harm or death to his sister.

ISSUES: [ 6 ] The Crown bears the burden of proving, beyond a reasonable doubt, that M.E.H. is guilty of the offences charged. [ 7 ] M.E.H. relies upon the defence set out in sections 34 (Defence of Person) and 35 (Defence of Property) of the Criminal Code . The Crown must prove beyond a reasonable doubt that the defence of defence of person and/or property cannot succeed. If I accept M.E.H.’s evidence in support of the defence, I must acquit. If I do not accept the evidence in support of the defence but am left with a reasonable doubt by it, I must acquit.

Lastly, even if I am not left with a reasonable doubt by his evidence, I must determine whether or not, on the basis of all the evidence, I am convinced beyond a reasonable doubt that the defence cannot succeed and that M.E.H. is guilty of the offences charged. [ 8 ] Given the differing versions of events, I am required to assess the credibility of both S.W. and M.E.H.. I must assess the evidence of each of them as well as the entirety of the evidence to determine if I am satisfied, beyond a reasonable doubt, that M.E.H. is guilty of the offences as charged.

I am also mindful that I must not simply accept one version of events over another in assessing credibility. THE LAW: Defence of Person -

Section 34 [ 9 ] It may be a defence to a charge of assault if M.E.H. applied force to defend himself.

The elements of this defence are the belief that force was being used against him, the purpose of his act was for defending or protecting himself (a subjective assessment), and that the force or act was reasonable in the circumstances (an objective assessment). [ 10 ] In assessing the reasonableness of the force used, a number of factors may be considered included the nature of the force, whether there were other means that could have been used, his role in the incident, whether a weapon was used or threatened; any history of interaction between the parties; the nature and proportionality of M.E.H.’s response to the use or threat of force; and whether it was in response to a use or threat of force that M.E.H. knew was lawful.

Defence of Property -

Section 35 [ 11 ] This defence may arise when an individual is defending his own or another’s property. The essential elements of this defence require that M.E.H. believed he was in peaceable possession of the property; believed, on reasonable grounds, that S.W. was about to enter, was entering, or had entered the property without being entitled by law to do so, or was about to take, damage or destroy the property and that his actions were for the purpose of preventing S.W. from entering the property or taking, damaging, destroying the property or for the purpose of removing her from the property, and lastly, that his actions were reasonable in the circumstances. THE EVIDENCE: M.E.H.

[ 12 ] M.E.H. was 17 years old at the time of the alleged offence. He was being paid to housesit while his mother was away on vacation. His sister, S.W., stopped by for a visit which went well for the first hour. [ 13 ] A disagreement arose between them over his cooking of marihuana oil on the stove. His evidence was that there was arguing back and forth between them over the safety of what he was doing and it was clear to him that his sister wanted him to stop. His evidence was that initially he told his sister that it was none of her business and asked her why she was still there and said “there’s the door”.

The arguing continued and S.W. phoned their mother. At this point, M.E.H. went into his room and when his sister finished her phone call, he called their mother himself. [ 14 ] The evidence of what his mother told him was admitted to show the state of his belief.

He testified that his mother told him to tell his sister to leave and that she did not want to know about the marihuana oil. [ 15 ] After he finished his call, he left his room to check on the pan with his marihuana oil and saw that it was not on the stove any longer. [ 16 ] He also testified that he was present at the tail end of the call between his sister and their mother’s ex- boyfriend G.

During her call to G., and upon finding out that S.W. put the pan in the dishwasher, his evidence is that he screamed at her to “get the F*** out of my house” several times. [ 17 ] His version of events around the physical altercation is also vastly different than the evidence from S.W.. M.E.H. testified that after he came out of his bedroom, he took the pan out of the dishwasher and put it on the counter. At this point, he says S.W. was in the living room sitting on a chair in front of the computer. He walked up to her, confronted her about throwing out his marihuana oil.

He shoved her, twice, and told her to leave. His evidence is that he turned around and walked away, stormed through the kitchen and felt something hit him in the head. [ 18 ] His evidence is also that, enraged, he turned around and “grabbed her”. He put his arms around her neck in a chokehold because, on his evidence, he wanted her to leave, and wanted her to stop hitting him with the frying pan. According to M.E.H., S.W. continued to strike him with the pan. [ 19 ] During his direct examination he indicated that S.W. hit him with the frying pan somewhere between 4 to 6 times.

He agreed that he applied pressure to his sister’s neck. [ 20 ] His evidence was that he knew he was hurting her so he stopped and left the house. In his words "she ran into the bedroom and I went out the door". [ 21 ] On cross examination he testified that his sister hit him in the back of the head about 4 to 6 times.

With further questioning during cross examination, he testified that his sister hit him 2 times while he was walking through to the kitchen and another 2 or 3 times while they were on the ground after he had grabbed her. [ 22 ] He denied that he was fabricating his evidence. [ 23 ] He admitted that he had S.W. down on the ground and was choking her and that he knew he was hurting her. [ 24 ] He was not questioned in direct or cross-examination about threats made to S.W.. S.W. [ 25 ] S.W. is 25 years old and is in her second year at [omitted for publication] pursuing a major in chemistry, astronomy and physics.

She is M.E.H.'s half-sister and although they have a different father, they grew up together. [ 26 ] On April 24, 2015 at approximately 1 or 2 PM, she stopped by her mother's house for a visit. As her mother was not there she visited with her brother M.E.H. and watched television. The visit was going well and was amicable until M.E.H. started cooking marihuana oil on the stove. Rubbing alcohol is used in this mixture and S.W., as a chemistry major, recognized the odour of the alcohol.

Her concern was that the pan was set to a high temperature and she is aware alcohol has a low flashpoint which can be explosive if overheated. She was very concerned that M.E.H. had left the pan in the kitchen unattended. [ 27 ] She was also worried about the fumes from the alcohol and told her brother to get fans to air out the home or she would dump out the contents of the pan. They argued and she called her mother about her concerns.

M.E.H. went to his bedroom. [ 28 ] It is agreed by counsel that during S.W.'s call to her mother, her mother told her to "leave it alone." [ 29 ] M.E.H. also phoned his mother from his bedroom. During the course of his conversation with their mother, S.W. took the pan off the stove and put it in the dishwasher. [ 30 ] According to S.W., after M.E.H. finished his phone call, S.W. called her mother's former boyfriend, G., and asked him to come and check on the house.

G. told her it was best to leave and she agreed. [ 31 ] According to S.W., M.E.H. returned while she was on the phone with G. and began yelling and screaming at S.W.. He was angry that she had wasted $90 of his money by throwing out the marihuana oil and told her to get the " F... out". [ 32 ] She ended the call to G. and walked to the kitchen to collect her belongings and leave. M.E.H. followed her to the kitchen and was very aggressive - continuing to scream and getting closer to her. Her description was that she had backed up to the kitchen sink and counter and M.E.H. was standing very close and facing her.

She put her hand up and, in her words, he “walked into my hand”. It was at that point, she says, that M.E.H. put his arm around her neck and throat in a chokehold, preventing her from breathing. They ended up falling to the kitchen floor. In the course of this, her vision became blurry.

[ 33 ] Her evidence is that M.E.H. threatened her saying: "this is how you are going to die" and "if I had a knife I would cut your throat", “if I had a knife I would stab you”. [ 34 ] They were lying on the floor with M.E.H.’s arm around her neck and S.W. saw the pan on the floor. She grabbed it and hit him. The first time he did not let go but the second time she hit him with the pan hard enough that he let go and she was able to escape from his grip. [ 35 ] It was at that point she ran to her mother's room, locked the door and then called 911. [ 36 ] Photographs of S.W. and the pan were in evidence.

S.W. testified that being choked left red marks on her throat. The photographs show some redness on the front of her throat but it is difficult to see given the quality of the copies. [ 37 ] On cross-examination S.W. agreed that M.E.H. had been allowed to stay in his mother's house during her absence although that is not his primary residence.

When it was put to her in cross-examination that M.E.H. told her to leave the house while he was yelling and in the course of the argument over the marihuana oil, S.W. testified that she knew M.E.H. was upset but could not recall being told to leave. [ 38 ] She disagreed with M.E.H.’s evidence that he was walking away from her and she struck him in the back of the head with the pan. The 911 Call [ 39 ] A voir dire was held to determine the admissibility of the 911 call recording.

At the conclusion of the voir dire , it was agreed by counsel that the statement made by S.W. was admissible in the trial as part of the res gestae - an exception to the hearsay rule - that prior consistent statements are inadmissible. [ 40 ] I listened to the recorded 911 call and also had the benefit of the transcript. It is clear that S.W. was very frightened, distraught and upset. Her version of events as relayed to the 911 operator is consistent with her evidence. POSITION OF THE PARTIES: [ 41 ] M.E.H. submits that S.W. was asked to leave and refused to do so.

On that basis he argues that he was entitled to use reasonable force to stop S.W. from hitting him and also to remove her from the house. [ 42 ] He argues that I should not accept S.W.’s evidence. He says that S.W. is not credible and is biased when it comes to her brother as shown by her lengthy and disparaging responses when asked about M.E.H. by the 911 dispatch operator. [ 43 ] It is clear that S.W. is critical of her brother’s lifestyle. [ 44 ] It is also clear that S.W. was upset that her mother and her mother's (current) boyfriend were, in her opinion, enabling her brother’s behaviour.

She also told the 911 operator: so I mean they're all enabling they've all bought shit for him or from him and they also know that he was doing this today and they told me that I was the one that had to leave and when I think like well that mentioned to M.E.H. that you know it shouldn't be happening I want to go clean that whichever he was using that's when he attacked me… [ 45 ] Counsel for M.E.H. points to the underlined statement as evidence that S.W. was asked to leave (in spite of her not recalling being asked to leave by her brother) and in support of the defence that he could use reasonable force to remove her. [ 46 ] The Crown's position is that S.W. was a compelling and straightforward witness and her evidence was corroborated by the evidence in the 911 call. [ 47 ] He argues that the defence of defence of person and of property does not apply to the facts of this case and, essentially, cannot succeed.

He points to S.W.'s evidence that upon being told by her mother's ex-boyfriend to leave, she was in the process of doing so and had gone to get her purse M.E.H. choked her. [ 48 ] As he put it, the physical altercation came to S.W. when M.E.H.’s chest came into contact with her hand. [ 49 ] His submission is that M.E.H. has fabricated his evidence. [ 50 ] In response to the assertion that S.W.’s answers were lengthy and biased in relation to her brother, he submits that when asked by the operator about M.E.H.'s behaviour in the past, it was relevant as to how the police would respond.

It was not an “unsolicited piling on". [ 51 ] Furthermore, he submits that the force used was unreasonable. ANALYSIS: [ 52 ] I am faced with two different versions of the events immediately preceding the assault. [ 53 ] M.E.H.’s version of the facts places S.W. in a chair in front of the computer in the living room when he went over to her. After shoving her twice, he says that she struck him in the head as he walked away and stormed to or through the kitchen. At that point, he turned around and grabbed her. [ 54 ] I find it very difficult to accept M.E.H.’s version of events.

[ 55 ] On his evidence, it defies common sense that S.W. could strike him in the back of the head a number of times with a pan after he had turned around and while he was facing her. Furthermore, he testified that he initially took the pan out of the dishwasher and placed it on the kitchen counter.

He then went over to S.W. who was in front of the computer and was struck by the pan. [ 56 ] If so, how did S.W. get the pan which he had left in the kitchen? [ 57 ] His version of events would mean that after he shoved her twice, and he was walking away, S.W. went to the kitchen, picked up the pan, followed M.E.H. and struck him. I do not accept his evidence. [ 58 ] S.W.'s version of events was clear and concise and she had a good recollection for events. Her description of events as given to the 911 dispatch operator immediately following the altercation is consistent with her evidence at the trial.

A: He ended up eh I went and washed the dish he was using when he wasn’t in the room and eh came back out and he started he started pushing me and choking me. [ 59 ] S.W.’s evidence is internally consistent and also makes sense. I find that M.E.H. placed the pan on the counter and it was knocked off onto the floor during the argument.

S.W. was able to grab the pan and use it in her self-defence. [ 60 ] In conclusion I do not accept M.E.H.’s evidence nor does the evidence as a whole leave me with a reasonable doubt about the sequence of events that afternoon culminating in the assault of S.W. in the kitchen. [ 61 ] After a consideration of all the evidence, I find that M.E.H. became angry with his sister for throwing out his marihuana oil.

I find as a fact that he yelled and screamed at her to leave the house as her conversation with G. was ending. [ 62 ] I accept S.W.'s evidence that she was on her way to the kitchen to collect her purse and leave when M.E.H. followed her. [ 63 ] S.W.'s evidence was the only evidence before the court regarding the threats made to her by M.E.H. during the assault. M.E.H. was not asked in either direct exam or cross-examination about those threats. The only evidence before the court is from S.W..

I also consider that her statement to the 911 dispatch operator was that M.E.H. threatened to stab her with a knife and cut her throat. In her statement to the dispatch operator she also said that M.E.H. said "if (inaudible word) wasn't here I'd split your throat". She also told the dispatch operator that M.E.H. said "I’ll fucking kill you I’ll kill you I’ll fucking kill you then he was screaming”. [ 64 ] I accept S.W.'s evidence that M.E.H. told her that if he had a knife he would cut her throat and threatened to kill her.

I have no doubt that M.E.H. wanted S.W. to leave so he could try to salvage what was left of the oil in the pan and he was angry with her for destroying the marihuana oil. [ 65 ] The question I need to address given the defence asserted by M.E.H. is whether he was acting in self-defence or in defence of his mother's property. [ 66 ] Based on my findings of fact, I conclude that S.W. did not strike M.E.H. with a pan until after he placed her in a chokehold. He was not acting in self-defence but choked S.W. because he was so angry with her. The Crown has proven beyond a reasonable doubt that the defence based on

section 34 of the Criminal Code cannot succeed. [ 67 ] M.E.H. also raises a defence pursuant to

section 35 of the Criminal Code , namely, defence of property. [ 68 ] I accept that he had “peaceable possession” by virtue of being given permission and being requested, to house sit for his mother while she was away. I accept that the elements of s. 35 (1) (

a) are satisfied. [ 69 ] It is clear that S.W. was initially entitled to be there. M.E.H. allowed her onto the property to spend time together. She was not about to enter nor had she entered the property without being entitled by law to do so: s. 35(1)(b)(i). [ 70 ] The defence raised is that after M.E.H. told S.W. to leave, she became a “trespasser” and was no longer entitled by law to be there: s 35(1)(a). [ 71 ] The other provisions of s. 35(1)(b)(ii) and (iii) do not apply to the facts of this case. She had not taken any property nor was she about to do so: s. 35 (1)(b)(ii).

She had not, nor was she about to damage or destroy the property or make it inoperative: s. 35 (1)(b)(iii). [ 72 ] M.E.H. wanted S.W. to leave the home. He was entitled to do so. [ 73 ] M.E.H.'s evidence about when he first asked her to leave was when she objected to him cooking the marihuana oil. His evidence was he asked her what she was doing here and "there's the door".

He then went on to testify that he was not forcing her to leave so he went to his room. [ 74 ] It was not until he came back out and discovered what she had done with his marihuana oil that he became incensed and told her to “get the F*** out”. I find that this occurred while she was on the phone with G..

I also accept that her mother told her to “leave it alone” which I take to mean that her mother told her not to be concerned about the marihuana oil. [ 75 ] In my view, when an individual has been asked or told to leave by a person in peaceable possession, that individual must be given reasonable time or opportunity to do so in the circumstances. In these circumstances, S.W. had a legitimate concern about the fire hazard that her brother’s actions posed and it was reasonable to alert her mother who, after all, owned the residence.

It was also reasonable to call G. to ask him to check on the residence because her mother was away. I suspect that the call was more about the fire hazard but in any event, I am also satisfied that S.W. was in the process of leaving when she was assaulted by M.E.H.. [ 76 ] After she finished her phone call with G., it would have been reasonable for M.E.H. to allow S.W. to collect her purse and any other belongings she brought into the property before leaving.

[ 77 ] I find that while she was in the process of leaving and gathering her things in the kitchen, the heated argument between them continued and S.W. was not given an opportunity to leave. Instead, matters escalated and M.E.H. became more aggressive. He placed S.W. in a choke hold which cut off her breathing and caused bruising to her neck. Clearly that was not reasonable. M.E.H. did not need to take any other action but simply let his sister leave.

The Crown has proven beyond a reasonable doubt that the defence of defence of property cannot succeed. [ 78 ] The same defence was raised in relation to the threats made to S.W. during the assault.

For the same reasons I find that the Crown has proven beyond a reasonable doubt that the defence of defence of property cannot succeed. [ 79 ] The Crown has proven beyond a reasonable doubt that M.E.H. assaulted S.W., namely, that he applied force to her without her consent. [ 80 ] I also find that the Crown has proven, beyond a reasonable doubt, that M.E.H. threatened to cause death or harm to S.W. and that the threat was meant to be taken seriously or to intimidate. CONCLUSION: [ 81 ] I find M.E.H. guilty on both counts. BY THE COURT: ________________________________________ The Honourable Judge Flewelling