R. v. Mazzulli, 2019 BCPC 340

Citation: R. v. Mazzulli 2019 BCPC 340 Date: 20191223 File No: 41548-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CONCETTA MAZZULLI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: L. Thomson Counsel for the Accused: S.W. Sheets Place of Hearing: Duncan , B.C. Dates of Hearing: September 27 & 30, 2019, December 23, 2019 Date of Judgment: December 23, 2019 Introduction [ 1 ] THE COURT: This is a case of alleged violence perpetrated by a pre-octogenarian stemming from an ongoing landlord-tenant dispute.

[2] Concetta Mazzulli has been charged with and tried for three serious offences arising out of a series of events which are allegedto have occurred at or near Duncan, British Columbia, on October 1, 2018 (the "Events") all relating to the Complainant, RichardGenereaux. The Events occurred at the residential rental property owned by Concetta Mazzulli, age 79, and her husband, Bruno, age 77(the "Rental Premises"), which are occupied by Richard Genereaux, age 53 (the "Complainant") and his former domestic partner,Julianne Monti, age 44 ("Ms. Monti") as tenants. They live with and co-parent their eight-year-old son.

The Complainant's 15-year-olddaughter also resides with them from time to time. [3] What is clear is that there have been significant ongoing strains in the landlord-tenant relationship. Not surprisingly, there issignificant conflicting evidence about what occurred in the course of the Events.

The Accused completely denies the particulars of thecircumstances that give rise to the criminal allegations. [4] The task of this Court is to determine whether or not the Crown has discharged its burden of proof beyond a reasonable doubton each of the three charges. [5] In coming to that determination, this Court will be required to carefully consider the non-matching narratives presented by thefour civilian witnesses in this trial and to assess the credibility and reliability of those witnesses and that evidence. Description of the Charges [6] The two-day trial dealt with the following

summary conviction charges:

a) Count 1: Knowingly uttering threats to the Complainant to cause death or bodily harm to the Complainant contrary to s.264.1(1) of the Criminal Code;

b) Count 2: In committing the assault of the Complainant, using a weapon, namely a motor vehicle contrary to s. 267(

a) of theCriminal Code;

c) Count 3: Committing the common assault of the Complainant (now referred to as assault simpliciter) contrary to s. 266 of theCriminal Code. [7] Accordingly, there are three alleged incidences that form part of the Events, being the "Uttering Incident", the "Vehicle AssaultIncident", and the "Common Assault Incident", all of which are described in more detail below. Presumption of Innocence [8] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs, then and onlythen can the court convict the accused person.

Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [9] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt.

However, reasonable doubt does not involve proof to an absolute certainty, since that would be animpossibly high standard. [10] The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. In short, if,based upon the evidence before the court, the finder of fact is sure the accused committed the offence, then the finder of fact shouldconvict, since this demonstrates that the finder of fact is satisfied of the accused's guilt beyond a reasonable doubt. (See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144) The W.(D.) Formulation [11] I must instruct myself that in the trial of criminal matters it is not a question of which witnesses' evidence or version of theevents I believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [12] Where there is evidence of an accused that raises a defence, as is the case in 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. 742found at paragraph 28: First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [13] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H., 2012 PECA 6, [2012]P.E.I.J. No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence takenas a whole raises a reasonable doubt (R. v. Ellis, 2006 PESCAD 25, at paragraph 18).

Proper application of the third step involvesmoving the focus from the evidence of the accused to the Crown’s evidence and assessing it in its own right (in relation to all theevidence) on the criteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of

bringing evidence that can prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paragraph 28-31). The Supreme Courtof Canada recently stated in R. v. J.H.S. 2008 SCC 30 , at paragraph 8, that a series of decisions has affirmed and reaffirmed thatwhere credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and theCrown’s ultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt.

It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt. Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., atparagraph 7). [14] 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. Josiah Wood J.A. (as he then was) suggests thatlogically this ought to be second in order in the W.(D.) analysis. [15] 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.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) Assessing Credibility and Reliability of Witnesses [16] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility and thereliability of the witnesses who provided this conflicting evidence.

In doing so, I must weigh all the evidence.

In so weighing theevidence, I may reject or accept some or all of the witness's testimony, after having taken into account a multitude of factors whichinclude, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, andinternal or external consistency. [17] 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. [18] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another.(See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094.) The Difference Between Credibility and Reliability of Evidence [19] As noted above, I must have regard to the credibility and to the reliability of each witness's evidence. In R. v. C.(H.), 2009ONCA 56 , Watt J.A. explained the difference between credibility and reliability, at paragraph 41: [41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of thewitness’s testimony.

Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). . . . Factors to be Taken into Account When Assessing a Witness's Evidence [20] There are many factors to take into account when assessing a witness's evidence, some of which are: 1.

Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2. Did the witness have an interest in the outcome of the case? 3. Did the witness have a good memory about the event? Did any inability to remember seem genuine or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw or are they adding in details based on other sources? 5. Was the testimony of the witness reasonable and consistent? Was the witness's evidence consistent with the other evidence in thecase? 6.

Do any of the inconsistencies in the witness's evidence make their testimony more or less believable and reliable? Is theinconsistency about something important, or a minor detail? 7. Was the witness's evidence plausible? (See: R. v. Shields, 2017 BCPC 395 , [2017] B.C.J. No. 2608; 2017 BCPC 395 at paragraph 60.)

Perspectives for Assessing the Credibility and the Reliability of Witnesses [21] In assessing the credibility and reliability of those witnesses who have provided the conflicting evidence about the allegedoffences, 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 theirperceptions; and

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [22] In the case of R. v.

Cuhna, 2015 BCPC 60 at paragraphs 5 and 6, the Honourable Judge Merrick provides a useful review of thefactors to be considered when assessing the testimony of a witness from these three perspectives: Truthfulness [23] 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. [24] However when considering demeanour, it is important to consider all the possible explanations for the witness's attitude, and tobe sensitive to individual and cultural factors that may affect demeanour.

Objectivity [25] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'sexpectations, the assumptions of unproven facts, or by subsequent events. Accuracy [26] 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. [27] The reasons for recalling an event and the length of time between witnessing an event and providing testimony about it mayaffect the accuracy of the witness's testimony and hence its reliability.

Some witnesses may have difficulty communicating their evidenceclearly, due to factors such as nervousness. The Court's Approach in Summarizing the Evidence [28] For the purpose of these reasons, I have broken the evidence into three categories. [29] First, what I view as non-controversial background facts that surround this case. [30] Next is the evidence adduced by Crown in support of the Crown's theory of the case, for the most part provided by theComplainant, Ms.

Monti, and by Constable David Grey. [31] Last is the evidence adduced by defence in support of their theory of the case which has been provided by the Accused on herown behalf and by her husband Bruno Mazzulli. [32] For the benefit of the parties, it is important to understand the approach that I have followed in summarizing the evidence inthese reasons. It is the same approach usefully and concisely set out in the Honourable Judge T.S. Woods' decision of R. v.

Connell,2017 BCPC 123 at paragraphs 5 and 6 as follows: [5] Finally in this introduction, before turning first to set out the Crown and defence theories of this case, I will candidlyacknowledge that in these Reasons for Judgment I have not made reference to all of the testimony given by the witnesses who werecalled, or to all of the documentary evidence that was received and marked. I have, rather, referred to evidence that I consider it necessaryto mention in connection with my factual findings and the legal conclusions that flow from them.

In places I have made mention ofevidence that I have been unable to accept, and of the reasons why I have been unable to accept it. If evidence is not mentioned in thisdecision, both Crown and defence may take comfort that the omission is not the result of my not having taken note of it. I have read allof the transcripts from end to end. I have done the same with all of the documentary exhibits. If witness testimony or documentaryevidence do not come up for specific 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] That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed andsomewhat selective canvassing of the evidence heard at trial is well established on the authorities.

The law is clear that where there issubstantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make areversible error by failing to refer to every item of evidence that was adduced: see, for example, R. v. Tse, 2013 BCCA 121 atpara. 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 Evidence

Summary of the Undisputed Circumstances [ 33 ] The Accused is a female, presently age 79, stands five foot two inches, and is of regular stature. The Accused has had three significant back operations, in 2009, 2010, and 2013, at which point titanium medical devices were placed in her lower back. She attributes her back issues to years of hard work. She is a first-generation Italian immigrant. English is her second language. She has no criminal record and one speeding ticket on her motor vehicle record.

She has been married to her husband for some 60 years. [ 34 ] The Complainant, presently age 51, stands five foot seven inches and admits to weighing 250 pounds. The Complainant was a commercial painter, but now receives disability payments and has done so for some time, all apparently because of several issues.

On occasion, he uses a walker to assist in his mobility, but is still able to do household chores requiring a significant level of physical abilities to do so, such as climbing ladders to the roof of the Rental Premises and chopping wood with the use of a hydraulic splitter. [ 35 ] The Rental Premises, located in the [omitted for publication] on Highway 18, also known as the Cowichan Valley Highway, have been rented since 2016 by the Complainant and by Ms. Monti, formerly his intimate partner, now his friend and the mother of his eight-year-old child. The Complainant and Ms.

Monti co-habit, but are no longer in a romantic relationship.

The Rental Premises consist of the residential house, a large yard, and a circular, gravel-surfaced driveway leading into it and exiting it. [ 36 ] The landlord and tenant relationship between the Accused and the Complainant has been strained since the Complainant started renting from the Accused and her husband some three years ago. [ 37 ] The basis of the continuing landlord-tenancy dispute between them is the Complainant's clutter on the property surrounding the house on the Rental Premises, which has accumulated and the number of vehicles, including two utility vehicles and a cube van that the Complainant has brought onto the Rental Premises, along with a 60-yard disposal bin which has been on the property for several months.

The disposal bin and a significant amount of clutter and a number of additional vehicles and utility trailers remained on the Rental Premises at the time of the trial. [ 38 ] The Accused, in her capacity as the landlord, has made several verbal and formal written demands upon the Complainant to remove the clutter and vehicles, including an August 2018 letter threatening eviction of the Complainant and his family for failure to abide by the conditions of the tenancy agreement, which includes provisions for the tenant's maintenance and requirements for tidiness. [ 39 ] The Complainant and the Accused agree that the Accused arrived in her Jeep vehicle (the "Vehicle") at the Rental Premises on October 1, 2018, around 5:00 p.m., being the start of the time of the Events.

The Vehicle was parked on the gravel circular driveway of the Rental Premises, but there is a dispute as to its location on the driveway. [ 40 ] The Complainant and the Accused have entirely different versions of the Events, but do agree that angry and profane words were exchanged between them about the clutter and the steps being taken or not being taken by the Complainant to deal with the clutter, the multiple vehicles, the utility trailers, and the disposal bin.

The Accused stated her intention to the Complainant to return every day to the Rental Premises to observe the steps being taken by the Complainant to deal with these outstanding issues.

The Accused got back into the driver's seat of the Vehicle. [ 41 ] In fairly short succession, the three alleged incidents, namely the Uttering Incident, the Vehicle Assault Incident, and the Common Assault Incident, occurred in and around the Vehicle, and in the general vicinity of the circular driveway at the front of the house. [ 42 ] In general terms, the disputed allegations are that the Accused uttered threats to cause death or bodily harm to the Complainant with the Vehicle, then intentionally drove the Vehicle at the Complainant, pinning his foot under the wheel, exited the Vehicle, and kicking the pinned and immobilized Complainant in the middle of the back with her foot, moving the Vehicle off of the pinned foot, and then followed the Complainant as he moved away from the Vehicle, whereupon, after pursuing the Complainant, she committed a common assault upon him. [ 43 ] As noted above, the Accused completely denies those allegations. [ 44 ] It is common ground that in the course of the confrontation between the Accused and the Complainant, Ms.

Monti placed a call to 911, which resulted in the dispatch of RCMP members from the local detachment of the Duncan-North Cowichan RCMP to the Rental Premises, along with an ambulance. After the confrontation between the Accused and the Complainant, and before the arrival of RCMP members and the ambulance, the Accused drove away in the Vehicle. [ 45 ] When the Accused left the Rental Premises, she saw a police car going in the opposite direction, being west on the Cowichan Valley Highway. The Accused made a U-turn and followed after the police car, which had pulled to the side of the roadway.

The Accused approached the police vehicle and identified herself. The police officer was Constable Grey. He immediately arrested her without any discussion or listening to her side of the story (expressing his concerns about the opportunity to provide adequate Charter rights and police warnings), and without any other police officer speaking to the Complainant about the Events.

She was transported to the RCMP detachment by Constable Pozniak, who was not called as a witness. [ 46 ] The BC Emergency Health Services ambulance (the "Ambulance") arrived at the Rental Premises around 5:30 p.m. and took the Complainant to the Cowichan District Hospital at around 5:42 p.m. According to the medical reports admitted as Exhibit 1, and specifically a BC Emergency Health Services Report, there is an indication that the Complainant was specifically complaining to the Ambulance paramedics about lower back pain from being kicked and about a sore big toe on his left foot.

He was examined, X-rayed, and then released from the hospital on October 1, 2018, at around 9:14 p.m.

[ 47 ] The next day he went to see his family physician and has continued to do so very frequently and has undergone X-rays, CT Scans and MRIs for what he says are residual injuries to his big toe, his left wrist, his left hand, and his lower back on both sides, all arising out of the Events.

The Complainant apparently had some pre-existing back ailments, but in the upper back area, which predated the Events. [ 48 ] Following his encounter and the arrest of the Accused, Constable Grey continued to respond to the 911 dispatch and proceeded to the Rental Premises, but he did not speak to the Complainant, who was in the process of being transported by the Ambulance.

The Complainant attended at the Duncan-North Cowichan detachment on October 17, 2018, some 16 days later to provide a police statement to Constable Grey. [ 49 ] However, the day immediately after the Events, the Complainant called a lawyer to discuss commencing a civil claim against the Accused, which proceeded almost immediately and the court filings therefore occurred prior to his attendance at the police detachment on October 17, 2018. [ 50 ] The Complainant took a series of pictures, starting the day after the Events, to document the injuries to his foot and to "preserve evidence", but never disclosed that fact to the police nor to Crown counsel, nor did he disclose to them the filing of the civil claim against the Accused.

He stated that he was never asked about these pictures nor presumably about his filed claim. He did not take any pictures of the alleged cut in his groin sustained in the course of the Vehicle Assault Incident.

The Disputed Circumstances The Complainant's Evidence about the Event's General Circumstances [ 51 ] The Complainant testified about the difficult relationship he endured with the Accused as his landlord, and suggested that from the outset of the landlord-tenant relationship, she had been threatening him with eviction. [ 52 ] He admitted in cross-examination, after some significant reluctance, (including initially saying he did not remember), that there had been a prior incident at the Rental Premises in the summer of 2018, at which time he had leaned into the open passenger door of the Accused's vehicle, with his head in the car, and then yelled at the Accused, seated in the driver's seat, in an angry and emotional manner, including crying, about her threat of an eviction.

However, he denied that when Mr. Mazzulli intervened and did touch him on the shoulder, that he then threatened to call the police because Mr.

Mazzulli had assaulted him. [ 53 ] The Complainant alleges he was confronted by the Accused at the start of the Events while he was splitting wood at the rear of the Rental Premises with the hydraulic splitter; after she explained her purpose for being at the Rental Premises there was a continuing exchange of heated words that occurred as they walked back towards her parked Vehicle. [ 54 ] The Complainant denies, in the course of their exchange, calling the Accused an extremely vulgar slang word referring to the female genitalia, sometime euphemistically described as "the 'C' Word".

The Complainant concedes that he did make another vulgar reference directed to her as an insult by calling her a name associated with a female dog. That, he said, only occurred after the Vehicle Assault Incident had occurred. He testified that it was the Accused who had initiated the exchange of vulgar language between them. [ 55 ] Notwithstanding his evidence that he was five foot seven inches tall and weighed 250 pounds, he stated that he did not know if the Accused was smaller than he was. It appeared to the Court to be very obvious that she was indeed smaller.

The Complainant's Version of the Uttering Incident [ 56 ] The Complainant testified that he was walking and then standing in front of the Vehicle after the exchange of harsh and some profane words; he denied that he stood in front of the Vehicle purposely, but did admit that he chose not to walk away from the front of the Vehicle, contending that he was at that point also trying to speak to Ms.

Monti and explain to her what was going on with respect to the clutter-removal issue. [ 57 ] The Complainant says he made ongoing attempts to continue his discussions with and to get the Accused out of the Vehicle in order to continue those discussions. Indeed, he directed her to "get out of the car" in order to continue the discussions. He stated that he wanted to know what items they were permitted to retain on the Rental Premises and also to apparently convince her that Rental Premises were, in his view, actually cleaned up.

He conceded that he offered her money to permit him to leave certain vehicles on the Rental Premises and that she rejected that offer in no uncertain terms. He denied swearing at the Accused, but did concede that he was speaking in a loud voice.

He conceded that the driver's side window of the Vehicle was only down a "couple of inches", but later said it was down "eight to 10 inches". [ 58 ] Instead of getting out of the Vehicle, the Accused revved the engine while he was in front of the Vehicle; she told him to move out of the way, used an expletive and uttered the threat that she would run over him with the Vehicle. The Complainant states that Accused said to him: "Move out of the F-ing way, or I'll F-ing run you over." In response, he stated: "Don't be silly.

You're not going to do that." [ 59 ] He initially testified that he did not think she would do it, but then testified that he was "disturbed" by the utterance, and then thought that she was meaning what she threatened when he heard the tires of the Vehicle turn on the gravel driveway. That essentially was the Uttering Incident. The Complainant's Version of the Vehicle Assault Incident [ 60 ] The next thing to occur immediately after the Uttering Incident was the Vehicle Assault Incident.

According to the Complainant, the Accused then gave the Vehicle "some gas", such that it spun the Vehicle's tires and jumped towards him; he moved aside and proceeded to move, such that he was then standing near the front of the Vehicle on the driver's side. He told the Accused to get out of the Vehicle and "talk like adults".

[ 61 ] In cross-examination, he denied that he was "purposefully" standing in front of the Vehicle with his hands out front of him on the hood of the Vehicle in an attempt to stop the Vehicle from departing, and then went on to suggest that the only time he had his hands out on the hood of the Vehicle was after it had "lunged" at him the first time. In cross-examination, he conceded that by "lunge", he actually meant that the vehicle moved towards him. He did concede that he "chose" not to walk away from the Vehicle.

He also testified that he said to the Accused: "What the F, are you frigging crazy?" He kept telling the Accused to get out of the Vehicle so he could talk to her. [ 62 ] He then says that after he heard the tires turning on the gravel driveway, the Accused gave the Vehicle "gas again" (resulting in a second “lunge” of the Vehicle), and the Vehicle then moved towards him as he stood at the left front of the Vehicle, such that his left foot, clad in a running shoe, became pinned under the left front tire of the Vehicle.

He was then forced to grab onto the front hood of the car and to hold onto the upper and lower part of the hood, with the upper portion of his torso lying on the hood of the Vehicle. The Accused swore and yelled at him to get off the hood of the Vehicle. [ 63 ] The Complainant testified that it was his large and his second toe to the lower joint that were pinned under the tire. He says that he yelled at the Accused to get off his foot, which was pinned under the Vehicle tire; he was banging on the hood of Vehicle as he was holding onto the Vehicle.

She was swearing at him and telling him to get off the hood of the Vehicle. She turned off the Vehicle and then got out of the Vehicle, pulled at his shorts with such force that his underwear put such pressure on his testicles that it cut into the area between his testicles and groin area.

Apparently that cut was not subject to an examination at the hospital nor by the Ambulance paramedics. [ 64 ] The Accused then bent down and looked at his pinned foot and got back up, and while he was trapped by his pinned foot, she swore at him, and "then took one step back" and then she proceeded to kick him twice, above the area of his buttocks, in the small of his back while he was somewhat upright; she apparently administering these kicks with her foot. This caused the Complainant to be "winded" and "buckle" over the hood of the Vehicle, whereupon he called out to Ms. Monti to call 911.

In cross-examination, he conceded he did not actually see the Accused kick him in the back. [ 65 ] Thereafter the Accused returned to the Vehicle's driver's seat, started the Vehicle, and backed the Vehicle off of his pinned left foot, which had been under the tire, by his estimation, for five minutes, whereupon he fell to the ground. [ 66 ] In cross-examination, while continuing to deny his use of the "C" word at the Accused, he finally stated he did say when the Vehicle was on this foot: "Crazy bitch, what you doing? You're on my foot. Get off my foot.

What's the F-ing your problem?" [ 67 ] As I understand it, he did not photograph the shirt he was wearing to show the foot marks which he stated were left by the two kicks administered by the Accused, and suggested that the attending police would have seen those marks. [ 68 ] Thus, the Complainant's description of the Vehicle Assault Incident essentially involved the alleged use of the Vehicle as a weapon to pin the Accused's foot and to thereby render him vulnerable, the Accused's alleged grabbing of the Complainant's shorts which placed pressure on and cut into his genitals, and also the administration of kicks by the Accused to the Complainant's lower back.

These two latter incidents in themselves maybe characterized as separate common assaults, or as part of the continuum of the assault with a weapon involving the use of the Vehicle. The Complainant's Version of the Common Assault [ 69 ] The Complainant says that he was unable to put weight on his painful left foot but was able to "drag" himself over to the concrete sidewalk area in front of the house forming part of the Rental Premises. [ 70 ] He called for his son to bring him his walker, whereupon he heard the Accused walking up behind him.

The Accused then grabbed him by his shirt while they were facing each other and punched him, by pulling him back and forth with her hands holding his shirt, thereby causing him to fall to the ground and, in doing so, sustaining an injury to his left hand that rendered it "numb". In his police statement, he stated that the Accused had done this "about four times". [ 71 ] The Complainant says that while this occurred, he was screaming at the Accused that she was scaring "the shit" of him, to "stay away" from him, and "to leave [him] alone".

She returned to the Vehicle and drove away. [ 72 ] This amounts to a separate alleged common assault (assault simpliciter ) and, as I understand it, is the Common Assault Incident.

Complainant's Evidence About On Going Medical Treatment and Photographic Evidence [ 73 ] The Complainant testified that ever since sustaining these injuries as a result of the Events, he has had ongoing appointments with his family physician and he has been sent to hospitals in Duncan, Victoria, and Nanaimo to receive X-rays, CAT scans, and MRIs for all parts of his body from his throat down to his toes. [ 74 ] He told the police in his statement there were "no broken bones nor bruising", but later in his evidence he stated that he was only referring to the timeframe just immediately after the Events.

He confirmed that there were no broken bones or bruising observed by the emergency room physicians shortly after the Events. He contends that there was swelling of his left foot and bruising, which only became evident sometime after the Events, and which he says he photographed sometime after the Events and before he made his police statement.

After several questions and some confusing answers, he finally admitted that the photographs taken the day after the Events showed no bruising, but he contended that swelling was evident. [ 75 ] He never showed those photographs of the bruising or swelling on his foot to the police, nor did he make mention of those photographs to the police.

In cross-examination, he stated he did not think that the police needed those photographs, and they were taken for his lawyer who was acting for him in the civil action against the Accused. [ 76 ] He also stated in cross-examination that he had never shown the photographs of his foot to any physician.

[ 77 ] The Complainant also testified that he had pictures of "tire marks and big ruts in the driveway", apparently caused by the spinning of the Vehicle's tires, but he never told the police about those photographs nor showed the photographs to the police. They were not produced at trial. Evidence of Julianne Monti [ 78 ] Ms. Monti testified that she was at the Rental Premises on the day of the Events. She previously gave a police statement on the day of the Events. [ 79 ] She agreed in the course of her testimony that there had been an ongoing dispute between themselves as tenants and the Accused as landlord.

There had been prior incidences of heated words between the Accused and the Complainant. She left it to the Complainant to deal with the Accused and with the eviction that had been previously threatened. Ms. Monti testified that in the past there have been other verbal confrontations between the Complainant and the Accused, which she believed to be four in number. She did concede that she had witnessed the Accused being aggressive, but never physically violent. [ 80 ] In her evidence, she was only able to provide evidence that touched upon the Vehicle Assault Incident and the Common Assault Incident.

She did not overhear the alleged uttering of a threat by the Accused. Julianne Monti's Version of the Vehicle Assault Incident [ 81 ] In examination in chief, she stated she was inside the house doing laundry in the laundry room which, as I understand it, is located at the front of the house. She had heard the Complainant working in the backyard using the hydraulic log splitter to split rounds of wood. He had been moving the split wood in a wheelbarrow. [ 82 ] She then overheard yelling between the Complainant and the Accused, but was unable to hear what they were saying.

When she looked out of the window from the laundry room, she observed that the argument was taking place at the front of the house and understood it to be about the existence of a white moving truck that the Accused was saying should not have been at the Rental Premises. [ 83 ] She agreed that the Complainant appeared to be following the Accused back to the Vehicle, speaking very loudly, and he appeared to be upset and angry. Ms. Monti again confirmed that she could not hear everything that was being said because Ms. Monti was still in the house.

From that location inside the house, she says she did observe the Accused get back into the vehicle and start it. She agreed in cross-examination that the Complainant continued to walk back and forth in front of the Vehicle while the Accused was starting the Vehicle. [ 84 ] Although she initially testified that she did not observe it, she says she heard the tires on the vehicle "spin a little bit" on the gravel and she also "heard tires turn on the gravel". She also described at one point that she observed the vehicle "lunged a little bit".

In cross-examination, she stated that she saw gravel shooting out of the back of the tires and denied that she was guessing about that. [ 85 ] She then stated that she observed that at the time that the tires were being turned on the gravel, the Complainant walked in front of the Vehicle with his hands up, saying words to the effect to the Accused, "Let us talk about this." She stated that the Complainant had made his way to the driver side of the Vehicle and, after the Accused had spun the tires on the Vehicle simultaneously, she heard the Complainant say: " I cannot move, your tire is on my foot, get off my foot." At that point, she said the Complainant called his young son to get Ms.

Monti to call the police, which she said she did by way of the 911 call. [ 86 ] Ms. Monti says that from her vantage point inside of the house, looking back towards the front of the Vehicle, she was observing the Complainant face on, while he was on the driver side of the Vehicle, such that the upper portion of his body (being his upper arms and chest from his solar plexus to head) was visible to her, but the lower portion was not. [ 87 ] She told the police in her statement that she could not see the driver's side of the Vehicle.

She says that she could not see both of the Complainant's feet, but then indicated that when she was walking back and forth, she could see his left foot pinned under the front tire. It seems she was at least 30 feet away and was suggesting she was able to see the pinned foot on the far side of the Vehicle, notwithstanding the location of the front of the Vehicle in relationship to the tire. [ 88 ] She testified that she was able to observe the Complainant was slouched over and holding onto the hood of the Vehicle.

She observed that the Accused got out of her vehicle and went and was pulling on the right leg of the Complainant's shorts (then self-corrected to say it was left leg of the Complainant's shorts), which she took to be an unsuccessful attempt on the part of the Accused to pull the Complainant's left foot out from under the front tire of the Vehicle. [ 89 ] She stated that this action that continued for "a couple of minutes", that is to try to pull him out, at which point the Accused got into the Vehicle, reversed it, and backed off of the foot of the Complainant. Ms.

Monti stated that while she and the Accused were looking at each other, the Accused was saying words to the effect "I didn't do this", which Ms. Monti stated was unbelievable because of her own ability to make observations. [ 90 ] At this point, she stated that the Complainant "hobbled" over to the intersection of the gravel driveway and the concrete sidewalk at the front of the residence. [ 91 ] Ms.

Monti then went back during her examination in chief and added her further observations, which she says occurred after the pant tugging and before the Accused backed her Vehicle off of the Complainant; that further observation was that the Accused kicked the Complainant above his buttocks in the lower portion of his back. However, in cross-examination, she admitted that she never saw the Accused administer the kick to the Complainant's back from her "angle" or even touch him, but did see the Accused buckled over the hood of the Vehicle, and did see the Accused behind the Complainant and come forward.

Julianne Monti's Version of the Common Assault Incident

[ 92 ] Ms. Monti testified in examination in chief that the Complainant, having hobbled to the intersection of the gravel driveway and the concrete driveway, the Complainant was calling to his young son to bring him his two-wheel walker. At this point, Ms. Monti testified that the Complainant and the Accused were continuing to exchange heated words. The Complainant was overheard by Ms. Monti to say words "get away from me" to the Accused. Ms. Monti testified that the Accused had grabbed the Complainant's shirt and the Complainant fell to the ground.

In that version, she did not actually indicate that it was the Accused who caused the Complainant to fall to the ground.

However, in cross-examination, she provided a significant amplification by saying she observed the Accused go over to the Complainant, who was struggling to stay standing, and then the Accused grabbed the Complainant by his shirt and pushed him down, while swearing and saying words to the effect, "You are a terrible person." In cross-examination, she admitted that she had not provided this information to the police, either in her statement or in the course of her 911 call. [ 93 ] The Complainant was getting up with the aid of the walker and struggling to get himself into the house, in accordance with the directions being given to Ms.

Monti by the 911 dispatcher. At that point, the Accused returned to her vehicle and drove away, just before the arrival of the police and the ambulance. In the meantime, the Complainant was able to get into the house. [ 94 ] During the entire period of time Ms. Monti conceded that she was on her 911 call, using a portable phone, providing a "play-by- play" of the Events. At that point, she came out of the front door of the house. She stated she was about 30 feet away from the Vehicle. She also testified that she returned inside the house at some point and went back outside.

I take it that she was not necessarily maintaining a totally non-interrupted observation of what was taking place, based on the phrasing of some of her evidence. Julianne Monti's Evidence About the Observed Injuries and Condition of the Complainant [ 95 ] Ms. Monti testified that she made certain observations of the Complainant once he was inside the house. She stated that he was gasping for air. She observed what she described as a "footprint", which I understand was a dirt mark on the rear of the Complainant's "jacket", in the area where she says the Accused kicked the Complainant.

She specifically noted that she assisted the Complainant in taking off that "jacket" and did not refer to it as a shirt, which was the Complainant's reference. [ 96 ] She further testified that the Complainant was unable to put his full body weight on his left foot. On the day following the Events, she says that the Complainant's foot "appeared swollen" and "sore looking", but “not ripped open”. She stated that the swelling appeared to be on the outside of the left foot near the toes.

She was asked about whether the swelling was on the ankle area, but insisted it was on the outside of the left foot, which I take to be away from the big toe and the second toe. The Complainant was complaining that he had a sore left hand and was apparently having difficulty grabbing things with it, but I do not understand that any injury was visible to Ms. Monti. Evidence of Constable David Grey [ 97 ] Constable David Grey is a general duty officer with three years' experience.

He received a dispatch arising from a 911 report on the day of the Events in which it was reported that the Accused, being the Complainant's landlord, had run over the Accused's foot with a vehicle. [ 98 ] The dispatch contained a description and licence plate of the motor vehicle and the name of the Accused. Constable Grey was travelling westbound on the Cowichan Valley Highway, with his emergency lights deployed, when he observed the Vehicle coming in the opposite direction towards him.

It was being driven by an elderly female driver who waved at him. [ 99 ] He then observed that the Vehicle made a U-turn, back tracked, and pulled in behind him. The Accused identified herself and was calm and cooperative throughout.

He agreed that that the Accused was attempting to explain things to him at that time, but he did not want to engage her in that discussion because he had received a report, and stated that he did not want to take a statement from her without formally chartering and warning her. [ 100 ] Constable Grey "verbally arrested the [Accused] for assault and uttering threats" and then turned the Accused over to Constable Pozniak for transport to the Duncan North Cowichan RCMP detachment. Constable Grey then continued on to the Rental Premises. Other RCMP members were at the scene.

He observed the Complainant being placed into the ambulance. Accordingly, he left matters in the hands of the other RCMP members and returned to the local detachment, where he released the Accused on a promise to appear. [ 101 ] Constable Grey confirmed that he subsequently met with and took a statement from the Complainant on October 17, 2018. He described the Complainant on that occasion as walking in on crutches. He did not observe any injuries on the Complainant that day or at the Rental Premises on the day of the Events.

Based only on his own observations, he stated that the Complainant "appear[ed] to be in pain". He did not request of the Complainant to show him his injuries. [ 102 ] So far as Constable Grey could determine, no police photographs were taken at the scene of the Rental Premises, in particular none showing any evidence of "spinning of tires". There were no photographs taken of the alleged injuries suffered by the Complainant and none came into his possession. [ 103 ] Constable Grey obtained a consent from the Complainant to obtain his medical records from the Cowichan District Hospital on October 17, 2018.

Accordingly, he did not have those records before him when he conducted his interview of the Complainant.

The Accused's Evidence about the Events' General Circumstances [ 104 ] The Accused denies that she had any intention of putting the Vehicle into motion to come into contact with the Complainant. [ 105 ] She further denies that she ever drove the Vehicle onto the Complainant's foot, uttered any threats to him to drive over him with the Vehicle, denies she kicked him in the back or pulled him by the shirt. [ 106 ] She says that she did lift up the leg of his outer shorts with two fingers in order to observe the relative positions of the Complainant's foot and the front left tire of the Vehicle.

She denies that she followed the Complainant to the front of house to further

assault him. Simply put, she denies all the charges. [ 107 ] The Accused says that upon her arrival, she stopped and parked her car in the driveway. The Vehicle was facing on a slight downward slope towards the house; the tires were turned slightly to the left. [ 108 ] She was approached by the Complainant upon her arrival at the Rental Premises before she got out of the Vehicle.

All of their discussions took place in and around her Vehicle, and when she was out of the Vehicle, she always stood adjacent to the left hand or driver's side of the car while the Complainant was pacing back and forth in front of the Vehicle. [ 109 ] During their heated discussions and her admonishment of him and her warning that she would be returning every day to the Rental Premises to monitor the removal of the vehicles and the other items comprising the clutter including the disposal bin, the Complainant had a "melt down" and was screaming incomprehensibly at her and crying.

She testified that he was within inches of her face, such that she had the perspiration from his face (described by her as "spittle") come in contact with her face. [ 110 ] The Accused said that it was at this point the Complainant called her a "cunt" and a "bitch" and she told him that she did not deserve that treatment. After that, she swore back at him in the course of the verbal exchanges. [ 111 ] She testified that she had been the subject of these significant emotional outbursts by the Complainant in the past when she was dealing with him on landlord-tenant issues.

She recounted an earlier encounter when she and her husband, Bruno Mazzulli, were at the Rental Premises to speak to the Complainant and suddenly the Complainant came towards their vehicle, to the open passenger door, and proceeded into it, with his whole upper torso inside and reached across the front seat and was yelling at her. That required the intervention of her husband, Bruno, who told the Complainant to stop and that he was abusing the Accused, and when Bruno touched the Accused as part of the intervention, the Complainant threatened to call the police on Bruno Mazzulli.

The Accused's Version of the Uttering Incident [ 112 ] Following the exchange of harsh and vulgar words with the Complainant, she told him she was leaving to go home because it was getting dark but, because of his highly-agitated state, she is not sure he heard her. He did not verbally respond to her. [ 113 ] At that point, the Complainant had moved, such that he was leaning on the Vehicle, about two-thirds in front of the Vehicle, at the corner of the hood on passenger side.

She got into the Vehicle and, through a small space in the open window, she says that she verbally indicated she was going to leave. [ 114 ] Therefore, the Accused denied she made any utterance of any threat to the Complainant and only told him she was going to depart in the Vehicle. The Accused's Version of the Vehicle Assault Incident [ 115 ] Because the circular driveway was blocked, the Accused said that she could not proceed forward in the Vehicle.

Therefore, this required her to back up the Vehicle in order to manoeuvre it into to a position to make a turn to proceed back along the portion of the driveway that she had originally travelled upon, to reach the driveway entrance and then to depart. [ 116 ] The Accused testified that as she started the Vehicle and before she put it in motion, the Complainant moved quickly from his location at the front of the Vehicle to the driver's side of the Vehicle and leaned on the car. [ 117 ] He was screaming at her "like he was dying" and saying that he was hurt.

She turned the Vehicle off, got out of the Vehicle, closing the door and taking the precaution of locking it out of concern he might try to get into the Vehicle. Every time thereafter during the course of the Events when she got out of the Vehicle, she locked it because of these same concerns. [ 118 ] She asked the Complainant if "this was a game?" They continued their exchange of heated words. He continued to lean on the Vehicle. He did not move.

She observed that his legs were spread on either side of the front left tire and not in contact with the tire, and he was standing upright with his upper body above the hood of the Vehicle. [ 119 ] She got back into the Vehicle, turned on the engine, expecting that he would clear away from the Vehicle before she started to leave, and because she did not want to hurt him.

At this point, I understand from the Accused's evidence, the Complainant did move back off of the Vehicle in a straight line about one to one and half feet towards a prickly bush. [ 120 ] Once he had backed away from the Vehicle, the Accused then started to turn the tires and put the car in motion, and in the course of doing so, revved the engine, but due to the slope of the driveway, the Vehicle moved forward an estimated eight to 10 inches, says the Accused. [ 121 ] The Accused testified this was a common experience with the Vehicle moving unexpectedly in this fashion and had been the subject of a number of attempts by her dealership to fix the problem, which was not successful. [ 122 ] Just as the Vehicle started to move, she observed the Complainant eyeing the Vehicle, and then suddenly the Complainant "ran like a sputnik" back towards the left front of the Vehicle, stood straight, and held onto the Vehicle, shouting that he was hurt and was holding onto the Vehicle. [ 123 ] She stopped the Vehicle, turned off the engine, got out of the Vehicle.

She observed that the Accused's legs were spread apart. His left foot was close but not under or in contact with the front left tire. She was unable to say where his right foot was located but, as I understand it, that foot was not under the tire. [ 124 ] She asked him if he was all right. At that point, she told him she was going to lift the legs of his pants, which she did with two fingers to assist in making her observations of the location of his left foot. He continued to yell about being injured and to swear at her

and call her names. [125] As I understand it, the Accused may have re-entered the car, waiting for the Complainant to move his upper body off of thehood of her Vehicle. With the window down slightly, she told him to get off the Vehicle. He continued to hold onto the Vehicle, atwhich time she then exited Vehicle again and stood back a distance of a couple of feet, until such time as he let go of the Vehicle, fell tothe ground and onto his knees, and then crawled towards the house yelling, crying, and calling to his son.

She stated that she was afraidof the Complainant and his behaviour, and in particular concerned because she did not have a cellphone with her to make a telephone callif necessary.

She stated that the Complainant was acting and just pretending to be hurt. [126] In her denials, the Accused says that at no time in the course of the alleged circumstances comprising the Vehicle AssaultIncident did she ever intend on moving the Vehicle at or towards the Complainant as he alleges, nor did she drive the Vehicle in such amanner that it came into contact with the Accused, but rather the Complainant intentionally placed himself in front of and over the hoodof the Vehicle. [127] The Accused says that at no point did the Complainant's foot get pinned under the tire of the Vehicle.

She rejects that she pulledon his pants in order that they would come into contact with his genitals, but she admits that she did lift his pant leg in order to get abetter view of the purported pinned foot under the tire and to confirm that it was not so pinned. The Accused firmly denies that shekicked the Complainant in the back while his foot was pinned under the Vehicle's tire. [128] The Accused said that she never saw Ms. Monti outside the house until she came out of it and said that she was calling thepolice, at which point the Accused said to Ms. Monti verbally and motioned to Ms.

Monti by arm gestures to demonstrate the length ofthe distance the Vehicle tire was away from the Complainant and said that she had not done anything. The Accused's Version of the Common Assault [129] As previously noted, the Accused testified that after the Complainant let go of the Vehicle and fell to the ground onto his knees,he then crawled towards the house yelling and crying and calling to his son.

The Accused said that in the course of making his way tothe house, the Complainant was swearing at her, but she says he was not saying words to the effect that he was afraid of her or that shewas to leave him alone. [130] The Accused denies that she followed the Complainant to the front of the residence for the purposes of further touching him orassaulting him. As I understand it, she says that she remained in or about the Vehicle in preparation for leaving the Rental Premises inher Vehicle and getting away from the Complainant, as she had been intending to do for some time. Evidence of Bruno Mazzulli [131] Mr.

Mazzulli testified that he previously knew the Complainant's father, and they worked as crane operators at the pulp andpaper mill located in Crofton, British Columbia, for some 34 years before retirement. [132] He further testified that he has medical issues which prevent him from driving and from dealing with matters such as the RentalPremises. He recounted attending at the Rental Premises prior to the Events giving rise to these charges.

He and the Complainant werespeaking about the accumulation of articles on the Rental Premises, when suddenly he heard screaming and turned to observe that theComplainant was lying across the passenger seat of the vehicle in which the Accused was occupying the driver's seat. The Complainantwas screaming at the Accused and appeared to be attempting to grab at her. He said that he was required to intervene. He went over andpatted the Complainant lightly and told him "that was enough" and indicated that he should leave the Accused alone. At that point, theComplainant then confronted Mr.

Mazzulli and threatened to call the police because he had been touched. Mr. Mazzulli did not respond,got into in the vehicle, and he and the Accused drove away. [133] Mr. Mazzulli was not present at the time of the Events giving rise to these charges. Analysis General Observations of the Accused, Mr. Mazzulli, the Complainant, and Ms.

Monti as Witnesses [134] All four civilian witnesses have the challenge of testifying about the Events which took place almost a year ago at the start ofthe trial, and in circumstances which may be described as a highly-charged, emotional environment. [135] I must take into account that any alleged assaultive behaviour forming part of the Vehicle Assault Incident and the CommonAssault Incident occurred in a relatively condensed timeframe. [136] The opposite timeframe is also apparent, in that there have been longstanding historical troubles in the relationship between theAccused and the Complainant and Ms.

Monti that have spanned over several months predating the Events. [137] These are all important factors when considering the reliability of their evidence, since the passage of time tends to causememories to fade and past memories of longstanding situations get intermingled with each other. All of this tends to erode the quality ofthe evidence, as does the whole of the circumstances surrounding the Events in question. Demeanour [138] Trial judges should not place too much emphasis on how a witness behaves while giving their evidence when assessing theircredibility. (See R. v.

Jeng, 2004 BCCA 464 , at paragraph 54.) [139] In court, witnesses are required to speak about difficult events in a very foreign and public environment. They are often nervousand feel significant pressure when undergoing a prolonged cross-examination. (See R. v. Shields, supra, at paragraph 74.)

Conclusions About the Witnesses [ 140 ] However, after allowing for these considerations, and having applied the various tests and considerations when assessing the evidence of the witnesses, and in particular their reliability and credibility, all of which tests and considerations are described at the outset of these reasons, I have reached the following conclusions about the four principal witnesses. Conclusions about the Complainant [ 141 ] The Complainant did not present particularly well as a witness.

There were some aspects of his evidence which were credible and believable. [ 142 ] However, in this case, I am of the view that he has completely minimized certain aspects of his own behaviour giving rise to and occurring during the course of the Events. For example, he has minimized his responsibility in not maintaining the Rental Premises, as to avoid confrontations with the Landlords. His excuses ranged from heart issues to the bin service not coming to the Rental Premises and, on the other hand, he admitted to new items being brought onto the Rental Premises, contrary to the tenancy agreement.

He obfuscated about the ownership and the timing of the removal of the large disposal bin that he had brought onto the Rental Premises. [ 143 ] In my view, he also tended to minimize his anger and his frustration and his heightened emotional state when he was dealing with the Accused at the time of the Events, notwithstanding that he says were caused as a result of the Vehicle Assault Incident. This level of anger, frustration, and heightened emotional state seems to be a pattern of his behaviour, as evidenced in the earlier confrontation with the Accused prior to the summer of 2018, and also as witnessed by Mr.

Mazzulli. [ 144 ] On several occasions, he was forced to change his evidence when he was confronted with differences in his evidence, both in his evidence in chief and in cross-examination, with the information in his statement that he made to the police, and even the information contained in his earlier evidence in examination in chief. [ 145 ] Some of his evidence was confusing and contradictory. For example, he first stated he was walking across the intended path of the Vehicle as it was trying to depart and not standing in front of it.

He then conceded, quite reluctantly, that he was intentionally standing in front of the Vehicle, attempting to speak to the Accused about their dispute. Eventually he suggested that his delay in moving from the front of the Vehicle was really because he was trying to provide Ms. Monti with an update about what was going on, while at the same time dealing with the Accused. [ 146 ] Other confusing and contradictory aspects of his evidence surrounded the injuries to his foot that he claims he sustained in the Vehicle Assault Incident.

He initially told the police in his statement that there was no bruising, but in his evidence in chief, he stated that there was both bruising and swelling. He then tried to suggest that when he gave the police statement, he was confining his description about a lack of bruising to immediately after or the day of the Events, notwithstanding that a lengthy period of time had passed to the time when he was providing that police statement.

This inconsistency was challenging to accept. [ 147 ] The confusion and the contradictions in his evidence became more apparent in the course of his cross-examination, which was thorough and lengthy, but fair. Conclusions About Julianne Monti [ 148 ] I find that inconsistencies in the evidence of Ms. Monti undermines her credibility and reliability. [ 149 ] Essentially she was an observer of a portion of what took place during the course of the Events. Her "play-by-play" was for the most part based upon the recitation from the Complainant, rather than from her own observations.

At times she was stating things that she had observed as being factual, which was then subsequently corrected, and she had to admit that she had not actually observed some of these asserted facts, but had presumed them to have occurred. The kicking incident is but one example. [ 150 ] Her evidence was not identical to that of the Complainant, but certainly there are aspects of it, such as the use of the term "lunge" when describing the movement of the Vehicle, which was identical to that of the Complainant. Although there is nothing substantial to conclude that the evidence of Ms.

Monti and that of the Complainant was reconstructed in concert with each other, there are similar types of discrepancies and language utilization in both of their testimonies. [ 151 ] Overall, I cannot say that Ms. Monti's testimony was consistent both internally and externally. Conclusions About Constable David Grey [ 152 ] I found Constable Grey to be a reliable and credible witness. I was left wondering overall about the extent of the police investigation that has given rise to the charges in this matter, which seems to have proceeded almost entirely on the statements of the Complainant and Ms.

Monti and without any corroborating evidence. Conclusions About Bruno Mazzulli [ 153 ] I found Bruno Mazzulli to be a reliable and credible witness. For the most part, his evidence was consistent, both internally and externally. Conclusions About the Accused [ 154 ] Generally I found the Accused to be a forthright, reliable, and credible witness. Some of the details that she attempted to present were confusing. She admitted appropriately that she herself was emotionally heightened during the course of the Events. She presented a straightforward and plausible recount of the Events.

She stood up well under cross-examination. While there may have been some minor inconsistencies, part of that may have been a result of the fact that English was not her original language.

The Crown's Position and Submissions [ 155 ] Crown identifies this as a case in which the W.(D.) formulation must be utilized by the Court. Crown urges the Court to accept the Complainant and Ms. Monti as credible and reliable witnesses and to discount the evidence of the Accused. Hence, Crown seeks a finding of guilt on all three counts. The Defence's Position and Submissions [ 156 ] Defence agrees that this is a case in which the W.(D.) formulation must be utilized by the Court. Similarly, defence urges that the Court should accept the evidence of the Accused and reject the evidence of the Complainant and Ms.

Monti. Therefore, defence seeks an acquittal on all three counts. The Applicable Law Applicable Provisions of the Criminal Code [ 157 ]

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

summary conviction which is governed by s. 787. As noted above, Crown has proceeded summarily in this matter. [ 158 ] Other relevant provisions are found in s. 265 of the Criminal Code and s. 34 (Defence of Person) and s. 35 (Defence of Property). [ 159 ]

Section 265 provides in part as follows: 265

(1) A person commits an assault when (

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

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or . . .

(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. [ 160 ] T he defences of self-defence and defence of property have not been raised in this matter, either directly by the parties or by the evidence. [ 161 ] At the time of the alleged offence under s. 267 (

a) of the Criminal Code , read as follows: Assault with a weapon or causing bodily harm 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. [ 162 ]

Section 2 of the Criminal Code defines "weapon" as follows: weapon means any thing used, designed to be used or intended for use (

a) in causing death or injury to any person, or (

b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will; [ 163 ]

Section 264.1(1) of the Criminal Code at the time of the offence provided as follows: Uttering threats 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 . . . Analysis [ 164 ] I am particularly mindful, in assessing witnesses and evidence, that finders of fact must be very careful not to rely upon stereotypical thinking and make assumptions based upon those faulty premises. [ 165 ] I accept that smaller people and lighter people do assault larger and heavier people. Females do assault males.

Older people do assault younger people. [ 166 ] There are a significant number of contexts in this case which require assessment on the whole of the evidence surrounding these Events. [ 167 ] One of those contextual considerations is what maybe the underlying motives for any of the witnesses that may shape their testimony or influence the reconstruction of the Events in their own minds. Here the Complainant and Ms. Monti were facing yet another threat of eviction from the Rental Premises by the Accused.

They had a lot to lose. [ 168 ] It is very apparent that Complainant was more interested in pursuing the civil suit against the Accused than in providing a timely statement to the police. He immediately contacted a lawyer to initiate the civil claim, while taking what appears to be an inordinately long time to attend at the local RCMP detachment to provide a statement. [ 169 ] In my view, this context must be taken into account as a factor that shaped the testimony of both the Complainant and Ms. Monti.

It is a reasonable presumption that they believed that, by way of the civil action, the Complainant had something significant to gain. [ 170 ] Having regard for above noted concerns of allowing stereotypical thinking and presumptions to improperly influence decision making, it is still incomprehensible to me that this elderly, five-foot-two lady, who had undergone a series of serious back surgeries in the past few years, could actually lift her leg high enough and kick the Complainant in the manner and in the location he describes, not once but twice, as part of the Vehicle Assault Incident circumstances. [ 171 ] It is also highly unlikely that the Accused would assault the Complainant in the manner he says during the Common Assault Incident, given the significant difference in their respective heights, weight, and size and their respective age differences. [ 172 ] It makes much more sense to me that, having had all of the confrontations in what I have characterized as the Vehicle Assault Incident, that the main goal of the Accused was drive away from the Rental Premises for her own safety and well-being, rather than stalk the Complainant to physically manhandle him and push him down to the ground. [ 173 ] If her car did move, it appears to me that the intent on her part has not been made out to use it as a weapon or, for that matter, to assault the Complainant.

There is a lack of a ring of truth in the Complainant's evidence in this regard. [ 174 ] The Complainant's former spouse, Ms. Monti, was apparently relying on the play-by-play commentary that the Complainant was providing to her.

She had limited opportunity to actually view what she says she did see and, in my view, she has reconstructed events based upon what the Complainant says happened. [ 175 ] The medical evidence before this Court is confined to a series of documents obtained from the Cowichan District Hospital Emergency Department, the BC Emergency Health Services ambulance records, and the Complainant's own family physician. [ 176 ] The injuries that the Complainant reported to these healthcare providers are not consistent with the testimony of the Complainant about the pinning of his toes under the tire.

Most of the injuries that he did complain about were self-reported and there was very little objective evidence to support his subjective complaints. [ 177 ] The number of additional tests, such as X-rays and MRIs, suggest that nothing definitive has been identified as to the cause of the ongoing complaints. [ 178 ] The Complainant was never questioned about the possible contribution of his strenuous efforts of wood splitting and wood hauling on the day of the Events that could have had influence on his back problems that he alleges were the result of being kicked by

the Accused.

I mention this not as a reason for disbelieving the Complainant, but parenthetically it may be of some concern in any ongoing civil litigation. [ 179 ] On the whole, the medical reports are of little assistance to Crown in proving its case. [ 180 ] There is little, other than the unreliable evidence of the Complainant, about the alleged uttering of threats by the Accused. [ 181 ] Generally, I find that the narrative of facts presented by the Accused to be a much more likely scenario to what actually occurred during the Events. [ 182 ] Based on the whole of the evidence and taking into account the specific factors which are useful in assessing the credibility and reliability of the witnesses' evidence, I find that Crown has not proven any of the three offences beyond a reasonable doubt.

Decision [ 183 ] Accordingly, on Count 1, the allegation of causing death or bodily harm to Richard Genereaux, I find the Accused not guilty; on Count 2, the allegation that, in committing an assault of Richard Genereaux, the Accused did use a weapon, being a vehicle, contrary to s. 267 (

a) of the Criminal Code , I find her not guilty; on Count 3, the allegation that the Accused committed the assault of Richard Genereaux, contrary to s. 266 of the Criminal Code , I find her not guilty. [ 184 ] This concludes my reasons for judgment. (JUDGMENT CONCLUDED)