R. v. Kreuzer, 2021 BCPC 65

Citation: R. v. Kreuzer 2021 BCPC 65 Date: 20210315 File No: 42420-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CARLOS ANTONIO KREUZER ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J.I. Patsch Appearing on his own behalf: C. Kreuzer Place of Hearing: Duncan , B.C. Dates of Hearing: December 15, 2020 and February 17, 2021 Date of Judgment: March 15, 2021 Introduction

[1] THE COURT: What started as a planned relaxing late-August, end-of-summer camping trip for a family of three and theirfamily friend and organizer, on the shores of idyllic Cowichan Lake, at a Campsite near Youbou, British Columbia, ended unhappilywith the arrival and ongoing stay of a self-invited guest. [2] That camping trip organizer and family friend, Carlos Antonio Kreuzer, is now before this court facing a charge of commonassault of the self-invited guest, Robert Shields, contrary to s. 266 of the Criminal Code. [3] Carlos Antonio Kreuzer (the "Accused") also faces a second charge of uttering threats to Robert Shields (the "Complainant") tocause death or bodily harm contrary to s. 264.1(1) of the Criminal Code.

The Crown has proceeded summarily on both charges. [4] The task of this court is to determine whether or not Crown has discharged its burden and proven each of these charges beyond areasonable doubt. Description of the Charges [5] The formal counts read as follows: Count 1 [The Accused] on or about the 30th day of August 2019, at or near Youbou, in the Province of British Columbia, did commit assault of[the Complainant], contrary to

section 266 of the Criminal Code. Count 2 [The Accused], on or about the 30th day of August, 2019, at or near Youbou, in the Province of British Columbia, did knowingly utter athreat to [the Complainant], to cause death or bodily harm to [the Complainant], contrary to

section 264.1(1) of the Criminal Code. Presumption of Innocence [6] 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. [7] 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. [8] 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 [9] 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. [10] Where there is evidence of an accused person that raises a defence, as in the case in this matter, then I must further instructmyself and I must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (SCC), [1991] 1S.C.R. 742 found 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. [11] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

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

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

J.H.S., 2008 SCC 30 [Can LII], at para. 8, that a series of decisions has affirmed and reaffirmed that wherecredibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown'sultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It is

possible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt. Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2 at para.7). [12] 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) suggested thatlogically this ought to be second in order in the W.(D.) analysis. [13] 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 or toachieve a level of sanctity or immutable perfection.

Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. 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 [14] 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 of 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. [15] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [16] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094.) The Difference Between Credibility and Reliability of Evidence [17] As noted above, I must have regard to the credibility and to the reliability of each witness's evidence. In R. v. C.(H.), 2009 ONCA56 , Watt J.A. explained the difference between credibility and reliability, at para. 41: [41] Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony.

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 [18] 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 [19] In assessing the credibility and the reliability of those witnesses who have provided the conflicting testimony about the allegedoffence, the testimony of each of the witnesses can be considered from three perspectives:

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

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

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [20] R. v.

Cuhna, 2015 BCPC 60 at paragraphs 5 and 6, provides a useful review of the factors to be considered when assessing thetestimony of a witness from these three perspectives: Truthfulness [21] Relevant factors for truthfulness include: previous inconsistent statements or occasions on which the witness has been untruthful;inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with the testimony of thewitness and the attitude and the demeanour of the witness.

However, when considering demeanour, it is important to consider all thepossible explanations for the witness's attitude, and to be sensitive to individual and cultural factors that may affect demeanour. Objectivity [22] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'sexpectations, the assumption of unproven facts, or by subsequent events.

Accuracy [23] Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period ofobservation and the circumstances of the witness's observations. The reasons for recalling an event and the length of time betweenwitnessing an event and providing testimony about it may affect the accuracy of the witness's testimony and hence its reliability. Somewitnesses may have difficulty communicating their evidence clearly, due to factors such as nervousness.

The Court's Approach in Summarizing the Evidence [24] For the purpose of these reasons, I have broken the evidence into three categories. [25] First, what I view as non-controversial background facts that surround this case. [26] Second is the evidence adduced by Crown in support of the Crown's theory of the case, for the most part provided by theComplainant and supplemented by Constable Bruce Coles, an RCMP member from the Lake Cowichan detachment, who received theComplainant's report and thereafter attended at the Campground. [27] Last is the evidence adduced by defence in support of its theory of the case, which has been mostly provided by the Accused,who has testified on his own behalf.

Two of the family members in attendance at the Campground also provided defence evidence, thatbeing the father of the family, Mark Drolet, and his adult daughter, Jacqueline Drolet, otherwise known and referred to in the evidence asJacquie. [28] For the benefit of all of the parties and their supporters present in court today, it is important to understand the approach that Ihave followed in summarizing the evidence in these Reasons for Judgement. It is the same approach usefully and concisely set out bythe Honourable Judge T.S. Woods in the decision of R. v. Connell, 2017 BCPC 123 at paragraphs 5 and 6.

The pith and substance ofthat approach is summarized as follows: That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed and somewhatselective canvassing of the evidence heard at trial is well established on the authorities. The law is clear that where there is substantialsupport in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error byfailing to refer to every item of evidence that was adduced: see, for example, R. v.

Tse, 2013 BCCA 121 at para. 56; R. v.Blacklaws, 2012 BCCA 2017 at para. 50 (aff'd, 2013 SCC 8 ); and R. v. Dinardo, 2008 SCC 24 at para. 30. [29] If evidence is not mentioned in this decision, both Crown and the Accused may take comfort that the omission is not the result ofme not having taken note of it. However, in drawing necessary inferences and in reaching my conclusions, I have carefully consideredall of the evidence, even if I have not made specific reference to certain aspects of it which are relevant to these charges.

Summary of the Undisputed Circumstances [30] The Accused is 54 years of age, he is six foot four inches tall, and weighs 300 pounds. He is a Red Seal pipefitter and a memberof the local pipefitters' union for some 15 years. He has had extensive experience in union affairs. The Accused presently manages acompany which provides fire prevention services. He has some 30 years of experience in that field. He became a widower some sixyears ago. He is active in his church, which is involved in community outreach in the Victoria area. Through that connection, he metJacquie Drolet and developed a friendship with her.

Through Jacquie, he became acquainted with her father Mark, who worked for theCity of Victoria, and her brother Jamie, who is a licensed architect who works from a home office. Jamie has Asperger's syndrome. Jamie finds some social situations challenging and has social anxiety. [31] The Accused undertook responsibility for organizing a multi-day, overnight camping event (herein the "Camping Trip") at therequest of Mark Drolet, who lacked both the equipment and experience.

Mark was under significant stress around that time and wasbeing encouraged by his son Jamie to take some time to relax. [32] The Accused owned four tents and an array of other camping equipment. He had considerable camping experience. One of theitems that he brought along was a specialized flashlight that he uses in his work for detecting cracks in pipes (the "Accused's WorkFlashlight").

[ 33 ] Reservations were arranged by the Accused at a rural and rustic campground on Cowichan Lake called Maple Grove Campground (herein referred to as the "Campground"). The Campground is located 10 kilometres west of Youbou and some 25 kilometres from the Town of Lake Cowichan. The Accused apparently knew the Campground operators from previous visits.

He went early and spent approximately a day and a half over two nights, commencing around Tuesday, August 27, 2019, setting up the sleeping tents and a kitchen tent before the arrival of Mark and Jacquie. [ 34 ] They were going to be using some of these tents for their sleeping accommodation.

Jamie owned a small RV teardrop camping trailer which he brought to the Campground for his sleeping accommodation. [ 35 ] The Accused and Jamie located their respective campsites adjacent to each other, with the Accused's sleeping and kitchen tents on the Accused's campsite near a picnic table, and Jamie's RV teardrop camping trailer on his campsite. These two campsites were on one side of the Campground's interior road.

The campsites for the sleeping tents for Jamie's father, Mark, and his sister, Jacquie, were adjacent to each other, and closer to the lake front, but were kitty corner to and on the opposite side of the interior Campground road, from the campsites of the Accused and Jamie. The distance across the interior road between the two locations was approximated by different witnesses to be anywhere from 30 to 100 feet. The Campground consists of a combination of trees, bushes, and open area.

There is no artificial lighting provided in the Campground, hence at night it is very dark. [ 36 ] Jamie arrived at the Campground on Wednesday, August 28, 2019, and Mark and Jacquie on the next day, being August 29, 2019. [ 37 ] The Accused also undertook responsibility for providing the food for the meals, preparing it, and tending the barbecue for the Drolet family members during the Camping Trip. He also tended the fire pit, which was located near his sleeping tent and the adjacent kitchen tent, in the Accused's campsite area.

A number of collapsible canvas chairs surrounded the fire pit. [ 38 ] The Complainant was 65 years of age at the time of the events that took place at the Campground and gave rise to the charges against the Accused. He was approximately five foot seven inches tall and weighed about 155 pounds. At the time of the events giving rise to the charges (the "Events"), the Complainant had been off work since approximately March of 2018 due to undergoing cancer treatments and due to the high level of stress associated with his vocation.

He had completed some 25 to 30 years as a psychiatric rehab worker, mostly being employed by the Vancouver Island Health Authority. In that capacity, he dealt with a number of patients with significant psychiatric and emotional issues. [ 39 ] Around the time of the Events, the Complainant was still under treatment for his cancer and was suffering from the effects of it. His last cancer treatment had been in October 2018, but he stated that he still felt the effects of it in August of 2019 around the time of the Events.

That included fatigue, dizziness, effects on his mental clarity and his ability to make quick decisions. [ 40 ] The Complainant showed up unexpectedly in his motor vehicle at the Campground around noon August 30, 2019, without an invitation having been extended to him by any of the Drolet family or the Accused. The Complainant had previously been visiting friends who were renting accommodation on Cowichan Lake. He learned through social media that Jacqueline was also in the Cowichan Lake area and was camping at Youbou; he thought he would surprise her by dropping in at the Campground.

He arrived without any food, camping equipment, or other items required for an overnight stay, other than possibly a blanket or a sleeping bag. [ 41 ] The Complainant had known Jacquie for many years, since 2015, having met through Bible study. Through Jacquie, he met Mark and also Jamie Drolet. He did not know the Accused.

The first time he met the Accused was that day at the Campground. [ 42 ] Neither the Accused nor the Complainant was aware of the nature of each other's relationship with Jacquie. [ 43 ] There is a significant amount of conflicting evidence about what occurred following the Complainant's arrival at the Campground, including: the nature of the interactions between various people present; the emotional status and behaviour of the attendees; who among the attendees was confrontational with whom; what, if any, invitations were extended to the Complainant; who was consuming alcohol, how much, and what were the respective levels of intoxication; and what subsequently occurred over the course of the afternoon and into the evening.

That conflicting evidence extends to the verbal and physical interaction that ultimately occurred between the Complainant and the Accused in the course of the Events that have given rise to the two charges. [ 44 ] Around 2:00 to 2:30 p.m., the Accused started the process of preparing the main midday barbecue meal for himself and the Drolet family. In the mind of the Accused, there was not sufficient food for the Complainant. An invitation to share the food was not extended to the Complainant by the Accused. The Complainant ultimately did help himself to the prepared food.

The Accused took care of the clean-up following the meal. [ 45 ] Following the meal, the Complainant did not permanently take his leave from the Campground, but continued his visiting with Jacquie.

They took several walks together away from the main eating area and fire pit near the Accused's tent, and also took a short drive. [ 46 ] The Complainant continued his stay into the late afternoon, such that arrangements were made for him to spend the night in one of the sleeping tents that had been set up for Jacquie and Mark, and with a resulting plan for them to share a single, larger sleeping tent. [ 47 ] It is common ground that Jamie was consuming a significant amount of alcoholic beverages throughout the afternoon and into the evening. [ 48 ] It is also common ground that into the evening, Jamie sought to tease his sister by throwing articles, likely small pieces of wood or stones, towards her sleeping tent to make her think that there were wild animals around it (the "Pranking Episode").

This prompted a negative reaction from the Complainant. [ 49 ] Thereafter, the disputed physical interaction between the Complainant and the Accused occurred near the fire pit area where both were in attendance. The Complainant ended up on the ground. He sustained a cut on the back of his head.

[ 50 ] The extent of the injury is in dispute. The amount of bleeding apparently increased from that initially observed by Mark Drolet and Jacquie shortly after the Events. [ 51 ] The Complainant left the Campsite in his vehicle with the intention of seeking medical attention. He called 9-1-1 to report the Events to the police. He travelled to the nearest RCMP detachment in the Town of Lake Cowichan and arrived at 11:19 p.m., where he met with Constable Coles.

Over the course of approximately 40 minutes, he provided a police statement, and a number of photographs of his hands, face, back of his head, and his blood-encrusted hair were taken by RCMP Constable Forshaw in the presence of Constable Coles. The photographs were admitted as exhibits in the trial. [ 52 ] Following his attendance at the RCMP, the Complainant drove himself for about half an hour to the Cowichan District Hospital near Duncan, British Columbia. There he sought and received medical attention.

The emergency room staff washed his blood-encrusted hair for him, cleaned and made an observation of the wound on the back of his head, administered a tetanus shot, and discharged him. No stitches were required. Thereafter he drove himself home to his residence at Brentwood Bay. [ 53 ] Following receipt of the reports, Constable Forshaw and Coles travelled to the Campsite, arriving there at approximately 12:30 a.m. on August 31, 2019. Upon arrival, they had a very brief discussion with the Accused, arrested him, and detained him while further inquiries were being made.

Constable Coles had a lengthy discussion with Jamie, who was not prepared to provide a formal statement to the police. Similarly, Jacquie and Mark were spoken to but they were not prepared to provide formal statements to the police. The Accused was released on a police undertaking and promise to appear. No police statements were apparently sought from nor provided by the Accused.

The Disputed Circumstances Evidence of the Crown Witnesses The Complainant [ 54 ] The Complainant testified that in the course of the day following his arrival, Jacquie asked him and she was insistent that he spend the afternoon with them, share a meal, and spend night at the Campground. [ 55 ] The Complainant testified that shortly after his arrival, he observed that Jamie, who had Asperger's, was consuming a fair amount of alcohol.

He also suggested that the Jamie was "really bugging" Jacquie and "there was something going on". [ 56 ] He testified that based upon his extensive psychiatric background, he decided that he was going to "help her a bit, just to deal with [Jamie] to set boundaries". The Complainant said that he spoke to Jamie about his social anxiety being exacerbated by his consumption of alcohol.

That situation apparently caused the Complainant some concern, prompting him to "pray" for Jamie. [ 57 ] The Complainant testified that he could not recall if he had anything to drink because of his original intention to drive home that evening. He testified that he could not recall what Jackie was drinking, but believed she had consumed some wine.

He testified that he was of the belief that the Accused had been drinking prior to the Complainant's arrival and thereafter, and believed that the Accused was consuming hard liquor, specifically saying that it was not beer. [ 58 ] In the early part of the evening, after the meal, he and Jackie went for a walk. She decided that she was going to go to bed and then went to her sleeping tent. He decided that he would go up to the fire pit and join Jamie and the Accused. [ 59 ] According to the Complainant's version of events, Jamie was looking for a bottle or can opener and could not find a flashlight.

At that point, the Complainant said that he pulled out his own flashlight and offered it to Jamie.

That precipitated the Accused saying "that is my flashlight"; there was a brief argument about the ownership of the flashlight, at which point he says the Accused "snatched it out of my hand" and put it over on the picnic table. [ 60 ] Immediately thereafter, the Complainant says that the Accused, who was now standing over top of him, while the Complainant was seated in a camp chair, said to the Complainant, "I could kill you", as he then started to strangle and twist the neck of the Complainant, and upon which he had received previous cancer radiation treatment.

The Complainant says that the Accused was standing over him with both hands around his neck and throat. The Complainant was having difficulty breathing. [ 61 ] The Complainant says that Jamie was crying and begging for the Accused to stop, at which point in the Accused did stop and then moved forward and, using the force of his body mass and with both of his hands, suddenly pushed the Complainant back in his occupied camp chair, such that he fell on his back and hit his head on "a rock or something on the ground".

At that point, the Complainant said that he slowly was able to extricate himself from the camp chair, got to his feet, at which point he says the Accused came up from behind and picked him up by his shoulders, describing it as "by my coat or something", and thereafter told the Complainant to: "Fuck off and get out of here or I will kill you. I will kill you". The Complainant stated that those words were also used by the Accused in the course of strangling him.

In cross-examination, the Complainant described the Accused as being in a "rage". [ 62 ] When asked by Crown Counsel in examination in chief how the Complainant felt, he stated that: "I was ready to die. And I thought, I have to keep myself, not go into my feelings. But, just try to survive this and I prayed it would stop . . . " The Complainant said that Jamie was very upset by these Events. [ 63 ] Having been unceremoniously told by the Accused to "F-off", the Complainant then went and spoke briefly to Jacquie.

He stated that at that point, he noticed there was blood on his head and he was told by Jacquie and Mark that he was bleeding. At that point, he returned to his vehicle, was able to exit the Campground, and while driving back towards Youbou, he pulled over and made a 9-1-1 call. [ 64 ] In his examination in chief, the Complainant identified what he said were injuries, in the nature of cuts and abrasions, on his hands that he sustained when he was pushed back to the ground by the Accused. None of the police photographs show any injuries allegedly sustained around his throat from the alleged strangulation.

The abrasions on his hands were difficult to detect from the

photographs. [ 65 ] In cross-examination, the Complainant denied that he had any recollection about his verbal interactions with various members of the Drolet family, as well as the Accused. In particular, he denied calling them "A-holes and jackasses" and saying to them, when the Accused, Mark, and Jamie asked him to leave, that he was not going to leave and that they could leave. He denied hearing Mark or Jamie asking him to leave. He further denied that the Accused had asked him to leave. [ 66 ] The Complainant testified that he believed that the Accused was quite intoxicated from drinking vodka.

He stated that he would never dare speak to the Accused in such a fashion because the Accused was "somewhat labile, at times. Easily angered". Parenthetically, I note that Shorter English Oxford Dictionary actually says that the psychological meaning of labile is "Emotionally or behaviourally unstable". [ 67 ] The Complainant stated in cross-examination that he came to the conclusion that the Accused was “labile” based upon what he says were his observations that the Accused "got loud" and "talked about things in [his] past, in an angry way".

Notwithstanding this, the Complainant stated that he did not leave because he had not heard directly from the Accused that he wanted him to leave. [ 68 ] He had limited recollection of his interaction with the Accused or Jamie about the Pranking Episode. He had some recollection of "probably commenting" to the Accused about needing to help "stop the pranking". [ 69 ] The Complainant could not recall taking a flashlight and going to look for Jamie, who had apparently left the fire pit, for the reasons of trying to deal with Jamie's pranking.

He then recalled that he did return to the fire pit area and that Jamie was there, at which point an argument took place between himself and the Accused about who owned the flashlight that was then in the Complainant's possession. [ 70 ] The Complainant denied the Accused's suggestions that: the Accused had grabbed the Accused's Work Flashlight when the two of them were seated, and after the Complainant had taken a swipe at the Accused's face with the flashlight held in his right hand; at which point the Accused grabbed the Complainant's wrist, and contemporaneously pushed him back, such that he ended up on the ground, and then the Accused then grabbed the flashlight and yelled at the Complainant.

Evidence of Constable Coles [ 71 ] Constable Coles provided evidence about the lack of cooperation on the part of the members of the Drolet family to provide him with statements. He also testified that he did not observe any injuries on the Accused. [ 72 ] Furthermore, he did not detect any liquor or drug intoxication on the part of the Accused. Similarly, he testified that "it was not obvious" that the Complainant was under the influence of drugs or alcohol.

Evidence of the Defence Witnesses Evidence of Jaqueline Drolet [ 73 ] In her evidence, Jacquie confirmed that she was surprised by the arrival of the Complainant at the Campground. She stated that the arrival of the Complainant was "uncomfortable" for everybody else. The source of that discomfort was the fact that the Complainant was rude and hostile to her father, her brother, and the Accused. She stated that he was not rude to her. [ 74 ] The rudeness and the hostility started almost upon the Complainant's arrival.

She recalled him making derogatory comments such as "asshole" in reference to the Accused, her father, and her brother. There were other derogatory terms used by the Complainant to these individuals, which now she could not recall. She did recall the Complainant was "putting Jamie down" and speaking in a demeaning fashion to Jamie. In doing so, he told Jamie that he was "full of fear" and that he "did not have spirit".

She described the Complainant as coming at the other attendees aggressively and "with force". [ 75 ] Her father, Mark, did not like the way that the Complainant was speaking to Jamie and asked him to leave. Similarly, Jamie asked the Complainant to leave. She recalled that this occurred around 7:30 p.m. on the day of the Events. [ 76 ] She recalled also that the Complainant was rude to the Accused shortly after first being introduced to him, giving off an immediate "vibe" that he did not like the Accused.

She could not recall when the Accused asked the Complainant to leave, but she believed that he did so, but could not recall the number of times that occurred. She testified that she never observed the Accused being hostile or angry towards the Complainant during the course of the afternoon and evening. [ 77 ] Jacquie testified that when she observed the Complainant upon arrival, he came without any camping gear, or anything else, but did notice that he had a 26-ounce bottle of vodka in his vehicle that appeared to have been, at least in part, consumed.

She did not recall seeing the Complainant drink from that liquor bottle, but stated that he seemed like "he was out of it" from the time of his arrival. [ 78 ] She stated that that she did not ask the Complainant to leave, nor did she ask him to stay. Both she and her father wanted to go to bed in the early evening and the Complainant wanted to stay. Accordingly, after she and the Complainant had gone for several walks, she finally told the Complainant that he could stay at their campsite, that she and her father would share the big tent and the Complainant could use the small tent originally set up for her.

The Accused help prepare that tent for the use of the Complainant. [ 79 ] She confirmed that she had consumed two or three beers in the course of the afternoon. She testified that the Accused had a couple drinks earlier on in the afternoon but she could not recall what he was drinking. [ 80 ] She stated that she did not see what occurred at the fire pit area. Accordingly, she did not provide a statement to the police. She confirmed that shortly after the altercation at the fire pit, she saw the Complainant immediately before his departure from the Campground.

She described that he had a "scratch" on his head and she saw a tiny bit of blood.

[ 81 ] She was of the belief that the Complainant "had a crush on her". She has had very limited communication with the Complainant since the Events. She has maintained regular contact with the Accused, spoken about the day of the Events, but they have not discussed her intended evidence at the trial. Evidence of Mark Drolet [ 82 ] Mark Drolet was not at the fire pit during the course of the Events. He did have interactions with the Complainant both prior to and after the Events. He described the Complainant as having invited himself to the Campground. He did not bring anything for himself.

He remained around when the Accused started barbecuing the four steaks that had been provided by the Accused for himself and the members of the Drolet family. [ 83 ] Mark Drolet described himself as a non-drinker. He had to travel to Victoria the next morning for work. He recalled that at some point, after he had retired for the evening to the sleeping tent that he and Jacquie were sharing, Jamie was pranking Jacquie by throwing things at her sleeping tent.

Shortly thereafter, he heard the Complainant say that he was going to go up to the fire pit and "straighten Carlos out". [ 84 ] Thereafter, the Complainant returned "whining" about the injury on his head, wanting Mark to speak to the Accused, wanting to know the Accused's last name, and threatening that he was going to report the Accused to the police and lay charges. [ 85 ] When the Complainant returned, he wanted to show what Mark described as the "little boo-boo" on his head to both Jacquie and to himself.

Finally, after possibly falling asleep, Mark got out of bed, examined the Complainant's scalp, but could not see anything in the nature of an injury, other than a tiny scratch and some blood in his hair. He conceded that he did not have his reading glasses on at the time and he was reliant upon a flashlight in the dark to make his observations. [ 86 ] Sometime after the Complainant had left, the police arrived. He put that time at around 1:00 or 2:00 a.m. He did not provide a statement to the police. [ 87 ] Mark maintains his friendship with the Accused.

He does not consider himself a friend of the Complainant, and stated that he was "not impressed" with the Complainant's behaviour on the day of the Events. Evidence of the Accused [ 88 ] The Accused described the Complainant as being a "belligerent fellow" who, shortly after his arrival, had called the Accused an "asshole", and started belittling Jamie about "not being a holy person" and for being a person who was "going to hell". At that point, Mark asked the Complainant to leave.

The Complainant and Jacquie left for a walk, but apparently not before the Complainant told the Accused that he was an “angry person” with “anger issues”. [ 89 ] Shortly after he had prepared the main meal and barbecued the four steaks, Jacquie and the Complainant returned to the campsite where the prepared food had been had been laid out. Notwithstanding that the Accused told the Complainant there was not anything for him, the Complainant helped himself to a plate and some of the food, including a steak.

At that point, the Complainant again told the Accused that he was an asshole and that he did not like the Accused. [ 90 ] Having helped himself to a steak, the Complainant then said it "tasted like shit" and threw the entire steak to a nearby dog. [ 91 ] The Accused immediately thereafter asked the Complainant to leave, but other than that, he said that he simply ignored this behaviour on the part of the Complainant. Following the meal, the Accused and the Complainant and the Drolet family continued to mill around the kitchen tent area.

Around six o'clock in the evening, the Complainant and Jacquie went for another walk. [ 92 ] Upon their return, the Complainant began to once again belittle and demean Jamie, saying to him that "we have to pray for you" and then he laid hands upon Jamie. Jamie was pretty drunk. Jamie became very upset and started crying, and then locked himself in his RV teardrop trailer.

At that point, Mark asked the Complainant to leave, to which the Complainant responded with words to the effect that "if you do not like me being here, then you can leave." The Accused said that he seriously considered leaving, but was not prepared to do so and leave behind his valuable camping equipment that was all set up and in place. [ 93 ] The Accused said that he did not participate in any of the oral exchanges with the Complainant. The Accused asked Jacquie to take the Complainant down to the other campsite on the opposite side of the Campground road around 8:00 p.m. They departed.

Shortly thereafter, Jamie apparently had re-appeared and the Pranking Episode started. The Accused said that this occurred around 9:30 to 10:00 p.m. [ 94 ] Shortly thereafter, the Complainant arrived at the firepit area, uninvited, telling the Accused that he had to intervene, take control, and stop Jamie's behaviour giving rise to the Pranking Episode. The Accused said that he was not prepared to get involved with Jamie's actions nor in the brother-sister pranking. At that point, the Complainant left, saying he was going to "put a stop to it" himself.

The Complainant grabbed the Accused's Work Flashlight off of the picnic table and departed for a period of approximately half an hour before returning to the fire pit area, once again, uninvited. [ 95 ] Jamie had returned to the fire pit area very shortly after the Complainant had left in search of him. When the Complainant reappeared, he again started to berate Jamie for acting like a child, which caused Jamie to get up and go towards the kitchen tent on the opposite side of the fire pit, leaving only the Accused and the Complainant seated by the fire pit in close proximity.

Jamie was very intoxicated. [ 96 ] At that point, the Accused asked the Complainant to return the Accused’s Work Flashlight to the Accused; the Complainant refused to do that, but he held it and shook it at the Accused, indicating that it was now his. The Accused said that he had assessed the Complainant's behaviour throughout the day as being very peculiar, "just like he was drunk", although he had not observed what the Complainant had been drinking during the day. The Accused said that at that point he did not react and concluded that this was "not an

argument that [he] is going to win", given the “unusual behaviour” of the Complainant. [ 97 ] The Accused described that he and the Complainant were both seated in the camp chairs, with the Complainant to the Accused's left on a 30-degree angle. The Complainant then suddenly used the Accused’s Work Flashlight and swiped it across the Accused's face using his right hand.

The Accused said that he was stunned by this action, but reacted in time by blocking the swinging flashlight with his own open left hand, by contacting the Complainant's wrist. [ 98 ] At the same time, he pushed the Complainant with the palm of his hand on the Complainant's chest, in order to put some distance between them. He said that it was not a hard push, but the Complainant fell straight backwards onto the ground with his legs up, much to the surprise of the Accused. At that point, the Accused grabbed the Accused’s Work Flashlight out of the Complainant's hand.

The Accused said that he was very surprised about the aggressive actions of the Complainant and asked him if he "was on drugs or something?" The Accused said to the Complainant, "we're done", "I told him to leave." The Complainant departed, heading towards the tent where Jacquie and Mark were located. The Accused did not observe any injuries on the Complainant, he observed no blood, and he presumed the Complainant was fine. [ 99 ] Jacquie then arrived at the fire pit area to inquire about what was going on.

He said that he got upset with her about inviting the Complainant, at which point she explained that she never had extended that invitation to the Complainant. She apologized to the Accused. [ 100 ] Shortly thereafter he heard a vehicle departing and presumed that it was the Complainant. Mark and Jacquie later returned to the fire pit area, at which time he explained to them what had happened. They indicated that the Complainant was heading to the police to report the incident. Mark and Jacquie then returned to their sleeping tent. [ 101 ] The police showed up around 12:30 a.m.

He identified himself to them, was asked to stand up, and was put into handcuffs. He was read his rights and was Chartered and told that he was being charged with assaulting the Complainant. The Accused indicated that the police did not take a statement from him at that time. They indicated to him that they would be coming back the next day to get that statement.

They never returned, and it was left to the Accused to follow up to see whether or not the charges were proceeding. [ 102 ] The Accused denied making any threats to the Complainant to cause death or bodily harm, and he denied that he was responsible for any choking or strangulation of the Complainant. He said that there was no contact with the Complainant's neck. [ 103 ] In cross-examination, the Accused said that he had no recall of either himself or Jamie looking for a bottle opener, as described by the Complainant.

He suggested this was not necessary, in any event, because he was drinking his beer from cans and Jamie was drinking all of his beer from twist top bottles. Therefore, there was no need for the Complainant to produce a flashlight for their benefit. [ 104 ] The Accused said that he had consumed three or four beers over a couple of hours, starting around 5:00 p.m. until around 10:00 p.m., all while relaxing around the fire. He stated that he did not feel the effects of the beer, but would not have driven. The beer consumption followed completing his cooking and clean up responsibilities.

He says that he takes medication for various ailments and medical conditions, and therefore he has to restrict his alcohol consumption. [ 105 ] The Accused said that he asked the Complainant five times or more to leave because of his behaviour towards Mark, Jamie, and himself. Mark made his first request, being the second request that the Complainant leave, telling the Complainant it was a "family affair".

Several of the requests were also made through Jacquie. [ 106 ] The Accused stated that the Complainant's name calling did not anger or hurt or frustrate him, but rather he said that he was "confused" with the Complainant's behaviour. [ 107 ] The evidence of the Accused was that at all times he remained calm and in control. He stated that his experience, and in particular his union experiences, taught him that losing his temper or becoming impatient would not gain him anything. He stated that he has been called a lot worse names in other situations.

He felt that it was the planned purpose of the Complainant to try to get him upset, saying that he never had anybody try "so hard to push my buttons". He stated that it was the Complainant who was raising his voice at him and not the other way around. The Applicable Law Applicable Provisions of the Criminal Code Relating to the Charge of Assault and the Defence of Self-Defence [ 108 ] The relevant provisions relating to assault and self-defence are found in ss. 265 and 266 of the Criminal Code and ss. 34 and 35 of the Code . [ 109 ]

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 . . .

(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. [ 110 ]

Section 266 provides as follows: Assault 266 Every one who commits an assault is guilty of (

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

b) an offence punishable on

summary conviction. Defence of Person and Defence of Property [ 111 ] Also relevant are the defence of person provisions of the Criminal Code that read as follows: 34

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

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

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

c) the act committed is reasonable in the circumstances.

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

a) the nature of the force or threat; (

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

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

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

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 112 ] I understand that there is no disagreement that these sections provide the applicable legal framework for the court's analysis of the alleged offence of assault and the defence of self-defence arising from the assault incident as part of the Events. [ 113 ] The provisions of s. 35 of the Criminal Code which provides a defence relating to defence of property or defence of another person have no applicability to this case.

Consideration of the Defence of Self-Defence [ 114 ] The present self-defence provisions of the Criminal Code came into force on March 11, 2013. Parliament's intention was to deal with the confusion surrounding the previous self-defence provisions of the Criminal Code , which were viewed by the Supreme Court of Canada and many academic commentators as being highly technical, excessively detailed, overlapping and internally inconsistent. The prior ss. 34 to 37 of the Criminal Code were therefore replaced with a single self-defence provision now found in s. 34 . [ 115 ] It has been observed that: The new

section 34 creates greater flexibility (discretion) in its application by doing away with a number of rigid requirements and

instead substituting a general "reasonableness" standard. The new reasonableness standard is to be ascertained by the trier of factconsidering, where relevant, a non-exhaustive list of nine factors none of which is a rigid precondition to reliance on self defence anddefence of others. (See: Continuing Legal Education Society of British Columbia (Vancouver), Canadian Criminal Jury Instructions,

Chapter 13, s. 135.1.) [116] The Supreme Court of Canada's decision in R. v. Ryan, 2013 SCC 3, provides useful guidance to this court when considering thedefence of self-defence which is codified under s. 34 of the Criminal Code. [117] The decision in Ryan references the earlier Supreme Court of Canada decision in R. v.

Hibbert, 1995 CanLll 110 (SCC); (SCC), [1995] 2 S.C.R. 973, which considered the defences of duress and necessity on one hand and self-defence on theother. [118] The Supreme Court of Canada in Ryan at paragraph 17 considered the reasoning of then Chief Justice Lamer in Hibbert where hestated that all three defences apply in "essentially similar" situations. Each is concerned with providing a defence that would beotherwise criminal conduct because the accused person acted in response to an external threat (citing Hibbert at paragraph 60), andhaving being subjected to an external danger, the accused person commits

an act that would otherwise be criminal, as a way of avoidingthe harm that the danger presents (citing Hibbert at paragraph 50). [119] In Ryan, the Supreme Court goes on to say, again continuing to cite Hibbert, as follows: 18 However, there are also significant differences among the defences. As Lamer C.J. explained, [A] distinction can be drawn between self-defence, on the one hand, and duress and necessity, on the other, that might well provide abasis for a meaningful juridical difference.

In cases of self-defence, the victim of the otherwise criminal act at issue is himself or herselfthe originator of the threat that causes the actor to commit what would otherwise be an assault or culpable homicide ... In this sense, he orshe is the author of his or her own deserts, a factor which arguably warrants special consideration in the law.

In cases of duress andnecessity, however, the victims of the otherwise criminal act ... are third parties, who are not themselves responsible for the threats orcircumstances of necessity that motivated the accused's actions." [Emphasis in original; para. 50.] 19 In this passage, the Chief Justice alludes to two differences that "[may] well provide a basis for a meaningful juridical difference"between duress and self-defence: para. 50. 20 First, self-defence is based on the principle that it is lawful, in defined circumstances, to meet force (or threats of force) with force:"an individual who is unlawfully threatened or attacked must be accorded the right to respond": (M.

Manning and P. Sankoff, ManningMewett & Sankoff: Criminal Law (4th ed. 2009), at p. 532.) The attacker-victim is, as the Chief Justice put it, "the author of his or herown deserts": para. 50. On the other hand, in duress and necessity, the victim is generally an innocent third party: see D. Stuart,Canadian Criminal Law: A Treatise (6th ed. 2011), at p. 511. Second, in self-defence, the victim simply attacks or threatens the accused;the motive for the attack or threats is irrelevant. In duress, on the other hand, the purpose of the threat is to compel the accused tocommit an offence.

To put it simply, self-defence is an attempt to stop the victim's threats or assaults by meeting force with force; duressis succumbing to the threats by committing an offence. [Emphasis in original] 21 However, these are not the only differences between duress and self-defence. It seems to us that there are two other significantdifferences which must be taken into account. 22 One is that self-defence is completely codified by the provisions of the Criminal Code. Thus, Parliament has established theparameters of self-defence in their entirety. They are no longer found, even in part, in the common law.

Duress, on the other hand, ispartly codified and partly governed by judge-made law as preserved by s. 8(3) of the Code. . . . 24 Despite its close links to necessity and duress, self-defence, on the other hand, is a justification: (Perka, at pp. 246 and 269). It"challenges the wrongfulness of an action which technically constitutes a crime": (Perka, at p. 246 (see also H. Parent, Traité de droitcriminel (2nd ed. 2005), vol. 1, L'imputabilité, at pp. 587-88). For different views, see S.G. Coughlan "Duress, Necessity, Self-Defenceand Provocation: Implications of Radical Change?" (2002), 7 Can. Crim.

L.R. 147, at p. 158; see also Manning and Sankoff, at p. 342;and K. Roach, Criminal Law (4th ed. 2009), at p. 294). In determining whether the defence is available, less emphasis is placed on theparticular circumstances and concessions to human frailty and more importance is attached to the action itself and the reason why theaccused was justified in meeting force with force. . . . 26 Given the different moral qualities of the acts involved, it is generally true that the justification of self-defence ought to be morereadily available than the excuse of duress. And so it is.

Unlike duress, self-defence does not require that any course of action other thaninflicting the injury was "demonstrably impossible" or that there was "no other legal way out." Under the former self-defence provisions,for example, a person who is the victim of an unprovoked unlawful assault is entitled to use as much force as is necessary to defendhimself, provided he does not intend to cause death or grievous bodily harm: S. 34(1) (see Parent, pp. 605-606).

Under the recentlyadopted provisions in Bill C-10, self-defence is available in circumstances in which a person believes on reasonable grounds that force isbeing used against him or her and responds reasonably for the purpose of self-defence: s. 34(1). [120] I note that the reference to Perka above is to the Supreme Court of Canada decision in Perka v.

The Queen, (SCC), [1984] 2 S.C.R. 232. [121] As was noted above, in this trial I have heard evidence that the Accused committed the charged offence under Count 1 of assaultin order to defend himself from the use or threat of force by the Complainant, and therefore it raises the defence of self-defence.

[ 122 ] In considering the defence of self-defence, I must instruct myself that the Accused does not have to prove that this defence applies. The Crown must prove beyond a reasonable doubt that this defence does not apply. If I am left with a reasonable doubt about whether this defence applies, Crown has not proven its case beyond a reasonable doubt and therefore I must find the Accused not guilty. [ 123 ] Although the term "self-defence" may be used in everyday language in a variety of ways, but in Canadian criminal law, the claim of self-defence by the accused person must come strictly within the

section of the Criminal Code set out in s. 34 . (See: Ryan , at paragraphs 22 and 26 , supra .) [ 124 ] Thus, s. 34 contains three essential ingredients. To rely on s. 34, all three ingredients are required.

If, after considering all of the evidence, I am convinced beyond a reasonable doubt that one or more of these ingredients was not present, then self-defence under s. 34 was not present and therefore the accused person cannot rely upon it. [ 125 ] The three ingredients of s. 34 are: (1) the accused person believed on reasonable grounds that the complainant used force or made a threat of force against him; (2) the accused person committed the act that constitutes the offence of assault for the purpose of defending or protecting himself from that use or threat of force; and (3) the act committed by the accused person was reasonable in the circumstances. [ 126 ] I note parenthetically that even if I find that these three ingredients in s. 34(1) of the Criminal Code were present, an accused person cannot rely on self-defence if the force used or threatened by the complainant was for the purpose of doing something that the complainant was required or authorized by law to do in the administration or enforcement of the law, unless the accused person believes on reasonable grounds that the complainant acted unlawfully.

This consideration does not apply in this set of circumstances. Some Conclusions About the Evidence of the Assault Incident [ 127 ] Based upon the evidence of the Complainant about being pushed by the Accused, at the very least this amounts to an assault. [ 128 ] However, the Accused's evidence about taking defensive actions to avoid being struck in the face by the Accused’s Work Flashlight by the Complainant also raises an air of reality to the defence of self-defence, which therefore must be considered by this court.

Crown's Position and Submissions [ 129 ] Crown says that I should have concerns about the evidence of the Accused, as well as the evidence of Jacquie Drolet. Some internal discrepancies are noted in their narratives and external inconsistencies exist as between their respective narratives.

Crown suggests that Jacquie is attempting to discredit the Complainant by suggesting that he was drunk upon his arrival, having consumed the bottle or a substantial portion of the vodka. [ 130 ] Crown relies on what it says are material differences in the version presented by the Accused, when he described how he blocked the alleged flashlight swing by the Complainant, and the version that he put to the Complainant in cross-examination. [ 131 ] On the other hand, it is submitted that the evidence of the Complainant was internally consistent and should be preferred as a reasonable explanation of what occurred during the Events. [ 132 ] Hence, Crown submits that there should be a conviction on both charges.

Defence's Position and Submissions [ 133 ] The self-represented Accused submits that he should be acquitted and that the evidence of the Complainant does not hold up under scrutiny. Among other things, the Accused submits that there is no photographic evidence of bruising around the Complainant's neck, or otherwise, that would be consistent with the Complainant's version of events that he was strangled by the Accused.

When the Complainant went to speak to Jacquie and Mark, his complaints were about his head injury, with nothing relating to allegations about being strangled by the Accused. [ 134 ] As noted above, the basis of the defence is that of self-defence, and the Accused was defending himself from the swinging of the Accused’s Work Flashlight at his face by the Complainant, which resulted in the Accused pushing the Complainant back to gain some distance. [ 135 ] The Accused also says that the Complainant's reliability and credibility is significantly weakened by such things as the suggestion that the Accused was assessed in short order by the Complainant as "labile", without any actual foundation, and notwithstanding the Complainant's statements of his continuing concern and fear about the Accused's emotional state, he returned to the fire pit to confront the Accused about the Pranking Episode.

This, suggests the Accused, is highly inconsistent and hence unbelievable. Analysis General Observations About the Testimony of the Witnesses [ 136 ] All three civilian witnesses have the challenge of testifying about the Events which took place almost a year and half prior to the start of the trial, and over a year and a half at its conclusion, and in circumstances which may be described as a highly charged and emotional environment. [ 137 ] I must take into account that any alleged assaultive behaviour and any application of force by either of them in the course of the

Events likely occurred in a very condensed timeframe. [138] 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 situations become intermingled with each other. All of this tends to erode the quality of theevidence, as does the whole of the circumstances surrounding the Events in question. Demeanour [139] 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.) [140] 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.) [141] After allowing for these considerations and having applied the various tests and considerations when assessing the evidence ofwitnesses and, in particular, their reliability and credibility, all of which are described in some detail above, I have reached the followingconclusions about the witnesses.

Constable Coles [142] I found the evidence of Constable Coles to be reliable and credible to the extent of his involvement in the Events. The lack offollow-up with the Accused to obtain anything in the nature of a statement from him is somewhat puzzling, as is the apparent lack offollow-up with the members of the Drolet family. In my view, the police relied almost entirely on the report provided by theComplainant and his version of the Events.

Jacqueline Drolet and Mark Drolet [143] I have also concluded that both Jaqueline Drolet and Mark Drolet were attempting to be both credible and reliable in theirrespective presentations of their evidence. In that regard, I do take into account the fact that they have an ongoing friendship with theAccused.

They did not observe the physical altercation forming part of the Events first hand, but they both recounted in considerabledetail the belligerent behaviour of the Complainant towards the Accused, Mark, and Jamie throughout the day, and what can clearly becharacterized as an egregious overstaying of his welcome. I do not consider any inconsistencies in their evidence to be material innature. There is no hint that the evidence of either has been tailored in order to fit the narrative of the Accused.

The Accused [144] I have concluded that the Accused was attempting to be both credible and reliable when presenting his evidence. He obviouslyhas a considerable stake in the outcome of this trial. However, I found his evidence to be both internally and externally consistent. Heprovided an appropriately detailed and understandable version of the Events. He recalled important aspects of the Events and thetimeframes for the Events. He gave straightforward answers to the questions posed to him. He did not attempt to embellish hisanswers.

The belligerent behaviour of the Complainant that he noted was also corroborated by the evidence of the other two defencewitnesses. I accept the Accused is both a credible and reliable witness. The Complainant [145] I found the evidence of the Complainant troubling from a couple of aspects. First of all, he seemed to be either oblivious to hisown antagonistic and belligerent behaviour to Mark, Jamie, and the Accused, or he simply did not have any recollection of it. The samecan be said about his failure to recall being asked to leave on multiple occasions three of the other attendees.

On all counts, itsignificantly erodes the reliability of his evidence. [146] The evidence of the Complainant is therefore significantly at odds with the evidence of Mark and Jacquie about his ownbehaviour and the alleged behaviour of the Accused throughout the day. The characterization by the Complainant of the Accused asbeing “labile” does not have any corroboration nor any apparent relevant basis.

His suggested fear of the Accused based upon his allegedanger is overstated, especially when taken in context with the Complainant's own untoward behaviour throughout the day and his stepsto confront the Accused about the Pranking Episode. [147] The Complainant appeared to be under some mistaken notion that he was being requested to “set boundaries” between Jamie andhis sister. But that is certainly not clear from all of the evidence before me upon which I can rely.

Rather than “setting boundaries” theComplainant seemed to be taking every opportunity to act in a demeaning way towards Jamie, about whom it is clear had somesignificant social challenges. [148] When presenting his evidence, the Complainant seemed to have a lack of recall about certain important aspects of the Events. Onthe other hand, he seemed to have a very clear recollection about evidence adverse to the Accused and in my view the Complainantembellished that evidence.

Conclusions Based Upon the Consideration of the Witnesses [149] Based upon all of the evidence, I am satisfied that Accused did take steps which were based in self-defence and as described in theAccused's evidence. I accept that the Complainant, for whatever reason, did swing the Accused's Work Flashlight at or near the face ofthe Accused. It makes more sense to me that both were seated at that time rather than, as the Complainant described it, with the Accusedstanding over top of him. Application of the W.(D.) Formulation to Count 2, the Uttering of Threats

[ 150 ] In this case, and on the basis of my assessment of all the evidence and the application of the W.(D.) formulation, I conclude that the Accused has provided a credible and reliable exculpatory statement with respect to Count 2 which I accept, and which, I further find Crown has not negated beyond a reasonable doubt. [ 151 ] I believe the Accused when he says that he did not threaten to cause death or bodily harm to the Complainant. [ 152 ] Hence, I find the Accused not guilty on Count 2.

The Allegation of Strangulation [ 153 ] Furthermore, again based upon the W.(D.) Formulation, I have concluded, on the whole of the evidence that I accept, that the Accused did not strangle or attempt to strangle the Complainant at any time during the Events. There is no external evidence of that occurring. The unexpected suddenness and the force of such an action as described by the Complainant, in the whole of the circumstances, does not have an air of reality to it. I accept that the Accused remained calm in the face of the Complainant's objectionable behaviour.

I am of the view that an attempt by the Accused to strangle the Complainant is highly consistent only with the Accused being in a rage. I cannot reach that conclusion based upon the evidence that I do accept. If the Accused had done so in the manner described by the Complainant, such actions would not likely be subject to a defence of self-defence. Consideration of the Three Ingredients of

Section 34 [ 154 ] While I find the evidence of the Accused to be significantly more reliable and credible than that of the Complainant, I must still consider the three ingredients of s. 34 in coming to a conclusion as to whether or not Crown has proven its case of assault against the Accused and negated the availability of the defence of self-defence.

Belief on Reasonable Grounds of Use or Threat of Force [ 155 ] I have concluded that when the Accused both blocked the Complainant's hand with the Accused’s Work Flashlight in it and then used his open hand to push the Complainant back in his chair, he had reasonable grounds for honestly believing the Complainant was using or threatening to use force against him. Given all of the circumstances, that belief was reasonable in the circumstances. "Force" simply means physical contact or touching, it does not have to involve physical violence, although it may.

A threat of force can be made verbally, by gestures, by acts, or by a combination of all three. [ 156 ] In coming to this conclusion about the existence of reasonable grounds for this honest belief, I am mindful that at the point that the Complainant was moving the Accused’s Work Flashlight towards the Accused's face, it does not appear that the Accused had time for calm detached reflection about how this engagement may accelerate. The evidence is clear. He wanted to prevent any contact with his face and he wanted to put space between himself and the Complainant.

These factors contribute to my conclusion about the Accused's reasonable belief of force or threatening of force being used against him by the Complainant. The Purpose of Defending [ 157 ] In my consideration of this ingredient, I am mindful that it applies if the Accused's act of committing the assault of the Complainant was for the purpose of defending or protecting himself from the Complainant's use or threat of force.

Here I cannot be satisfied beyond a reasonable doubt that the Accused's act of blocking the swinging Accused’s Work Flashlight and the contemporaneously pushing back the Complainant was committed for a purpose other than defending or protecting himself from the force being applied to him by the Complainant. The Reasonableness of the Act [ 158 ] My consideration of this ingredient leads me to conclude that the actions of the Accused during the Events in pushing the Complainant away from him were reasonable in the circumstances.

In coming to this conclusion, I am mindful that, in the course of so pushing the Complainant, the Complainant did topple backwards and his head came into contact with the ground, and he did sustain a scalp wound which did result in extensive bleeding. [ 159 ] In reaching this conclusion about the reasonableness of the Accused's action, I have taken into account:

a) that the level of force being used by the Complainant was sudden and unexpected and was directed at the face of or near the face of the Accused;

b) the application of force by the Complainant was imminent, insofar as it happened quickly and while the parties were in close quarters, while both were seated, the Accused was not readily able to move out of the way and it does not appear that the Accused had many options available, other than to apply force to the Complainant in the fashion that he so did;

c) based upon the evidence that I accept it was the Complainant who in the course of continuing his antagonistic behavior towards the Accused was the precipitator of the physical engagement;

d) no weapons or threat of weapons was used by the Accused; however, the swinging by the Complainant of the Accused’s Work Flashlight was indeed a potential use of a weapon;

e) while there is an apparent size and weight difference between the Complainant and Accused, the relative weight and size difference was somewhat mitigated by the fact that both were is a seated position;

f) the Accused and the Complainant had just met on the day of the Events and hence there was no evidence of a pattern of ongoing animus between them;

g) the history of interaction and the communication between the parties in the course of the Events, in my view, leads to the conclusion

that the self-defensive actions of the Accused were proportionate to the type of force being utilized by the Complainant. [160] I am also mindful that mere verbal provocation on the part of the Complainant in these Events would not justify the actions of theAccused taken against the Complainant, and would not provide the Accused with a defence to these criminal charges. Provocation mayprovide a partial defence to murder. (See, for example, R. v.

Mullin (1990) (PE SCAD), 56 C.C.C. (3d) 476(P.E.I.C.A.).) Conclusion and Decision About the Charge of Assault on Count 1 [161] In this case, and on the basis of my assessment of all the evidence and the application of the W.(D.) formulation, I conclude thatthe Accused has provided a credible and reliable exculpatory explanation regarding the circumstances surrounding the allegations ofassault which I accept.

Therefore, Crown has not met its evidentiary burden. [162] Taking all of the above into consideration, at the very least, if I were not to accept all of the evidence of the Accused in support ofthe defence of self-defence, I am certainly left with a significant reasonable doubt by it. [163] Accordingly, I must find the Accused not guilty of the allegation of assault on Count 1.

Summary of the Decisions [164] Could you stand, sir. [165] Based upon all of the foregoing, I find that the Accused is therefore not guilty on Count 1 of assaulting the Complainant and onCount 2 is not guilty of uttering threats to cause death or bodily harm to the Complainant. [166] That concludes my reasons for judgment. (JUDGMENT CONCLUDED)