R. v. Roebuck Date:, 2017 BCPC 260

Citation: R. v. Roebuck Date: 20170710 2017 BCPC 260 File No: 51371-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LUIS FELIPE ROEBUCK ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: J. Guild Counsel for the Defendant: B.K. Loewen Place of Hearing: Vernon , B.C. Date of Hearing: July 10, 2017 Date of Judgment: July 10, 2017

[ 1 ] THE COURT: Madam Clerk, these are reasons for judgment following a two-day trial. [ 2 ] Luis Roebuck is charged with the aggravated assault of Greg Barton near Falkland on September 13, 2016. The Crown alleges that Mr. Roebuck drove to Mr. Barton's residence. Mr. Roebuck was accompanied by Tamara Daley, one other male, and one other female. Immediately after they arrived, Mr. Roebuck and one of the other passengers were involved in a violent fight with Mr. Barton. Ms. Daley witnessed the incident. [ 3 ] Mr. Barton testified that in the course of the fight while he was wrestling on the ground with Mr.

Roebuck, Mr. Roebuck shouted to the other male, "Grab the sledgehammer and break his leg," and that the other male had done that. Mr. Roebuck denied this. He said that he only struck Barton with his elbows and knees because of an injury to one of his hands. Before Mr. Roebuck and the other occupants of the vehicle left, Mr. Barton had suffered two stab wounds and three other broken bones, but he was unable to say clearly who had inflicted them. [ 4 ] The position of the Crown is that on the evidence, the claim of self-defence is not available and that Mr.

Roebuck is guilty of aggravated assault either as a principal or as a party or that, in the alternative, he is guilty of assault. Mr. Roebuck claims that any force that he applied to Barton was applied in self-defence. He says that the Crown has failed to prove beyond a reasonable doubt that self- defence is not available.

He denies striking Barton with any weapon and says that he could not be a party to any assault by the other male as he did not have an objective foresight of bodily harm. [ 5 ] Before dealing with the law and the facts in this case, I will give brief reasons for dismissing the Crown's application to cross- examine Mr. Roebuck on his criminal record. Near the end of Mr. Roebuck's cross-examination by Crown counsel, there was an application under s. 666 of the Criminal Code to adduce evidence of previous convictions. It was argued that Mr.

Roebuck had adduced evidence of his good character during cross-examination through his answers on two questions. The first was when he explained the basis of a friendship by saying that he tried to help a friend to get off drugs and the second was his assertion that he was not a violent person. That assertion came while he was being rigorously cross-examined on his claim of self-defence. [ 6 ] The Crown's application was dismissed. I was not persuaded that either comment placed the accused's character in issue.

The first comment was made to explain the origin of his relationship to the person that he said committed the assault and the second comment was made in response to cross-examination on his response to Barton's aggression in the context of the Crown's attack on his claim of his self-defence. It seemed to me that both comments were made as part of a narrative essential to his defence. I was unable to find that, with those comments, he had opened the door to an attack by the Crown on his reputation and character. [ 7 ] Let me turn to an outline of the balance of these reasons.

While there is a real dispute about what happened during the few minutes in which the altercation happened outside Mr. Barton's home, many of the surrounding facts are not in dispute at all. I will begin by reviewing those surrounding facts before turning to the evidence of each of the main witnesses. I will instruct myself with respect to the law regarding reasonable doubt and the assessment of credibility, the law of self-defence, and the law regarding the liability of parties.

I will apply that law to the evidence to make findings of fact and then reach a conclusion. [ 8 ] In September 2016, Greg Barton lived with his two young children in a residence next to the Chase Falkland Road on a property owned by his aunt. The mother of the two children was Jackie Levin [phonetic]. She and Mr. Barton were estranged from each other and had a relationship that was frequently acrimonious. The brother of the accused testified that he had seen Mr. Barton's red pickup truck in Ms. Levin's neighbourhood and that he felt threatened by its presence. [ 9 ] Ms.

Levin had no telephone number, but she had previously used a telephone belonging to Tamara Daley to contact Mr. Barton. Tamara Daley was the daughter of a friend of Levin's named Kim Daley. Tamara was also the common law partner of Mr. Roebuck. [ 10 ] On September 13, 2016, Mr. Barton wanted to contact his ex-girlfriend, Ms. Levin. He began to call and then to send text messages to Ms. Daley's number which he believed to be a number through which Ms. Levin could be reached. Ms. Daley was in her vehicle returning to Falkland from Vernon to the address -- to her address in Falkland. Ms.

Daley did not want to be bothered by Mr. Barton and she told him to stop contacting her. She told him that orally over the phone as well as by text message. Some of the text messages were written for her by her common law, Mr. Roebuck. [ 11 ] Eventually, Ms. Daley and Mr. Roebuck drove to Mr. Barton's residence. There was a second male and a second female in Ms. Daley's vehicle, but the identities of those two people are not clear. Immediately after they arrived, the altercation occurred and Mr. Barton suffered six wounds. Roebuck, Daley, and the other two left. Mr. Barton was taken to hospital.

He had stab or puncture wounds to his right forearm and his left thigh. His left tibia and fibula were fractured along with one of his ribs, a vertebra, and the iliac bone on his right hip. The fracture of his left leg was treated by surgery three days later. According to the mother of Tamara Daley, there was a window smashed out of Daley's car and a lot of dent marks around the exterior. [ 12 ] On September 17, 2016, Mr. Barton was presented with a photograph pack. He identified the two males that he said had assaulted him. One photograph was of Luis Roebuck, the accused.

The identity of the male in the second photograph is not known to me. [ 13 ] All of that is clear. The evidence of what happened in the driveway of Mr. Barton's residence is, unfortunately, in great dispute. I will begin with Mr. Roebuck's evidence. He testified that he went to Barton's residence with his girlfriend, Tamara Daley, Juanita Hyslop [phonetic], and Kelly McLean [phonetic]. Daley was driving, Roebuck was in the front passenger seat, and Hyslop and McLean were in the back seat. Mr.

Roebuck said that his purpose in going to Barton's residence was to show Barton that Jackie Levin was not with them and to recover a carjack that he had loaned to Barton the week before. [ 14 ] Mr. Roebuck said that as soon as they arrived, Barton came rushing down the stairs out of his house. He had a crowbar in one hand and a hammer in the other. According to Roebuck, Barton started smashing the glass windows of the vehicle. Roebuck was struck

in the head when Barton swung the crowbar at the steering wheel. [ 15 ] Roebuck, Daley, and McLean got out of the vehicle. McLean was holding a golf club that Roebuck had found at a garage sale. Roebuck picked up the carjack and threw it at Barton. He said that McLean went running into the storage shed under the deck of the residence. Roebuck denied telling McLean to grab the sledgehammer. [ 16 ] According to Roebuck, when McLean came back out, he ran into Barton and they fell to the ground. Barton still had a crowbar and hammer in his hands.

According to Roebuck, he straddled Barton and held Barton's wrists while he tried to get the hammer and the crowbar away from him. He looked up and saw McLean with the sledgehammer in the air over his shoulder in a position to strike Barton. Roebuck testified that he let go of Barton and twisted to his right, extended both hands in the air towards McLean, and shouted, "No, what are you doing?" Roebuck said this was the first time that he had seen a sledgehammer. McLean did not strike Barton, but instead went over to Barton's red pickup truck.

Roebuck testified that at that point he struck Barton with his knees and elbows while McLean took the sledgehammer and smashed Barton's red pickup truck. Roebuck said he never saw McLean touch Barton. [ 17 ] Roebuck testified that because of an injury to his hand four or five years ago, he could not punch anyone. Roebuck denied hitting Barton with the hammer or the crowbar. Roebuck says that he heard a door open at the other end of the property and McLean told Juanita Hyslop to turn the car around. The four got in the car and left. [ 18 ] For her part, Ms.

Daley testified that she was driving her vehicle when they arrived at Barton's residence. Barton was screaming at them and had a crowbar or a hammer when he came out of his residence. He ran around her vehicle hitting it and smashing windows out. She panicked and dropped the car keys inside the car and then ran to the end of the driveway where she called her mother on her cellphone. From the end of the driveway, Ms. Daley testified that she saw Barton and Roebuck rolling around fighting each other. McLean got out of the vehicle and she saw him get the sledgehammer.

She said that she never saw Roebuck on top of Barton. She saw McLean take the sledgehammer and use it to hit Barton's red pickup truck. She said that she saw Roebuck get up and go back to the vehicle and then McLean hit Barton with the sledgehammer. [ 19 ] Finally, Mr. Barton said that on September 13, he was trying to get in contact with Jackie Levin through Kim Daley. He was told to stop calling Kim Daley's number and he was upset. He started to get text messages from Tamara Daley's number. After getting those text messages, he called his mother and told her to come and get the two children.

Shortly after that, a vehicle came up his driveway and stopped outside his residence. He recognized Luis Roebuck and Tamara Daley in the front. He thought that Jackie Levin was in the back with a male that he did not recognize. [ 20 ] Barton ran downstairs from his residence and told the people in the vehicle they were trespassing and should leave. Barton had a crowbar in his hand. The male in the back of the vehicle had a golf club. Barton heard Roebuck say, "I should have brought a gun." According to Barton, Roebuck tried to get out of the driver's side door.

Barton tried to keep the door closed and the window was shattered. Roebuck managed to get out of the vehicle and the male in the back with the golf club got out, as well. [ 21 ] Barton said Roebuck threw the jack stand at him and hit him in the foot. Barton ran along the back of his house and then turned and came back to the parking area. Roebuck and Barton grappled with each other and fell to the ground. Barton's back was on the ground and he was holding Roebuck from behind with the crowbar across Roebuck's chest. Roebuck then was on top of Barton.

Barton testified that Roebuck shouted to the other male, "Grab the sledgehammer and break his legs." Barton testified that his leg was smashed with a sledgehammer. [ 22 ] Roebuck got off him and then Roebuck and the other male started hitting him with the sledgehammer and the crowbar. Roebuck had the crowbar and the other male used the sledgehammer. Barton thought that they hit him between six and eight times and that two of the blows were struck with the sledgehammer. The sledgehammer was swung at his head, but he moved and was only grazed.

Barton said that after Roebuck and the other male left, he crawled up the stairs into his house and phoned for help. [ 23 ] Let me address the law that applies here. First of all, the law is clear that the Crown bears the burden of proving each element of the offence beyond a reasonable doubt. There are five elements to the offence of aggravated assault.

They are: 1. that Roebuck applied force to Barton; 2. that Roebuck intentionally applied the force; 3. that Barton did not consent to the force that Roebuck applied; 4. that Roebuck knew that Barton did not consent to the force that Roebuck applied; and 5. that the force that Roebuck applied to Barton wounded, maimed, disfigured, or endangered the life of Barton. [ 24 ] An accused person like Roebuck can be found guilty of an offence committed by another person. One way might be as an abettor. An abettor is one who encourages another to commit a crime.

Persons who encourage others to commit an offence may be found guilty of the offence they encouraged. Abetting requires proof of two things, conduct and a specific state of mind. [ 25 ] The first requirement, then, is conduct. An abettor must provide actual encouragement by words, conduct, or by both words and conduct to the other person to commit the offence. It is not enough that what the abettor does or says has the effect of encouraging or results in encouraging the other person to commit the offence. By what he or she says or does, the abettor must intend to encourage the other person to commit the crime.

Actual encouragement is necessary. [ 26 ] Likewise, it is not enough that a person was simply present when the crime was committed by somebody else. In other words, just being there does not make someone guilty as an abettor of any crime the other person commits. On the other hand, if a person knows that someone intends to commit a crime and encourages that other person to commit the crime, the person who encourages is also guilty of the crime the other commits.

[ 27 ] The second requirement is a particular state of mind. Abetting relates to a specific offence. An abettor must intend that the other person commit the offence or know that the other person intends to commit it and intend to encourage that other person to do so. It does not matter, as far as the abettor is concerned, whether anyone else including the person whom he encouraged is not on trial or cannot be convicted of the offence. [ 28 ] When an accused person claims to have used force in self-defence, the Crown must rebut that defence.

In other words, the Crown must prove beyond a reasonable doubt that a claim of self-defence is not available to the accused. To decide whether the Crown has proved beyond a reasonable doubt that Roebuck did not act in self-defence, I have to consider three questions.

They are: 1. has the Crown proven beyond a reasonable doubt that Roebuck did not believe on reasonable grounds that force was being used against him; 2. has the Crown proved beyond a reasonable doubt that Roebuck did not commit the act for the purpose of defending or protecting himself from the use of force; and 3. has the Crown proved beyond a reasonable doubt that Roebuck's act was not reasonable in the circumstances? [ 29 ] If I find that the answer to any one or more of those questions is yes, the defence of self-defence fails.

If I find that the answer to all three of those questions is no, the defence of self-defence will succeed and I must find Roebuck not guilty. [ 30 ] Reasonable doubt also applies to the issue of credibility. On any given point, I may believe a witness, disbelieve a witness, or not be able to decide. I do not need to fully believe or disbelieve one witness or a group of witnesses. If I have a reasonable doubt about the guilt of the accused arising from the credibility of the witnesses, then I must find him not guilty. [ 31 ] In this case, Mr. Roebuck has testified.

When a person charged with an offence testifies, I must assess that evidence as I would assess the testimony of any other witness. I can accept all, part, or none of Mr. Roebuck's evidence. As the Supreme Court of Canada put it in R. v. W.(D.) , if I believe Mr. Roebuck's evidence, I must find him not guilty. Even if I do not believe his evidence, if it leaves me with a reasonable doubt about an essential element of the offence or about the availability of the defence of self-defence, I must find him not guilty. Even if Mr.

Roebuck's evidence does not raise a reasonable doubt about an essential element of the offence or about the availability of the defence of self-defence, if, after considering all of the evidence which I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must find him not guilty. [ 32 ] This is a case in which I am faced with differing accounts of what happened in Barton's driveway. I must determine the credibility of the witnesses and the reliability of the evidence about them. These are questions of fact. They cannot be determined by following a set of rules or guidelines.

A judge must take into account the witness' capacity to remember, the accuracy of their statement, the witness' care in answering, the witness' sincerity and manner, frankness and attitude, and evidence of motive, bias, or evasive responses. [ 33 ] Judges often consider the following points relating to credibility and reliability: 1. The internal consistency or inconsistency of the witness' evidence. In other words, does the witness give different versions of events at different points of his or her testimony or on previous occasions? 2.

The external consistency or inconsistency of the witness' evidence in relation to other evidence which I do accept; and 3. The inherent probability or reasonableness of the witness' account. When weighed against what is commonly referred to as common sense, does the evidence seem impossible or likely?

Does it make sense? [ 34 ] Finally, judges can consider the demeanour and attitude of the witness in the witness box, but demeanour and attitude are known to be weakly related to credibility and reliability. [ 35 ] In this case, I accept Roebuck's evidence and that is that he and his colleagues went to Barton's to confront Barton, but with no plan to assault him. I accept, as well, that Barton reacted aggressively immediately after their arrival. [ 36 ] It is incontrovertible that Mr. Barton suffered serious injuries in the course of the incident that followed. His left tibia and fibula were fractured.

The iliac bone on his right hip was fractured. In addition, he had a fractured rib and a cracked vertebra. Finally, he had a stab wound to his right forearm and a puncture wound to his left thigh which were both still oozing blood when he arrived at the hospital. [ 37 ] Those injuries were accounted for in Mr. Barton's evidence. His evidence was that his left leg was broken by the unknown male following Mr. Roebuck's encouragement. He said that the injury to his iliac bone was also caused by a strike from the sledgehammer by the unknown male.

He did not know specifically how the other injuries occurred, but he testified that he was struck as many as eight times including the first sledgehammer blow. [ 38 ] Tamara Daley testified that she did not see anyone strike Mr. Barton until after the accused had returned to the car and the person she identified as McLean struck him with the sledgehammer. The altercation was the single focus of her attention.

Despite that and despite her opportunity to observe the complete scene from the end of the driveway, she did not see any of the other blows that must have been struck against Barton and she did not see Roebuck straddling Barton in the manner which Roebuck described. [ 39 ] Luis Roebuck testified that he wrestled with Mr. Barton and ended up straddling him. He said that the person he identified as McLean raised the sledgehammer to strike Barton and he told him not to do it.

He admitted that he struck Barton with his knees and elbows, but denied ever striking Barton with a tool or weapon that could cause the sorts of injuries that Barton clearly suffered. He said that he never saw McLean strike Barton.

[ 40 ] Roebuck's evidence is inconsistent with the undeniable evidence of Mr. Barton's injuries. Like the elephant in a room, the various injuries suffered by Barton are the subject that Mr. Roebuck and Ms. Daley do not want to talk about. With respect to those injuries and the manner in which they were inflicted on Barton, I reject the evidence of Roebuck and Daley and accept the evidence of Barton. I accept the evidence that Roebuck, while Barton was holding him from behind, encouraged the person that Roebuck named as McLean to grab the sledgehammer and break Barton's leg.

I accept the evidence, as well, that Roebuck struck Barton with a crowbar after Barton's leg had been broken. [ 41 ] All five elements of the offence of aggravated assault have been proven beyond a reasonable doubt. Furthermore, the evidence that I have accepted establishes beyond a reasonable doubt that the force used was not used for self-defence and, in any event, was more than was reasonable in the circumstances and the defence of self-defence fails. It follows, therefore, that I find Mr. Roebuck guilty of aggravated assault. (REASONS FOR JUDGMENT CONCLUDED)