R. v. Busby Date:, 2011 BCPC 171

Citation: R. v. Busby Date: 20110630 2011 BCPC 0171 File No: 54357-C-2 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN RYANE BUSBY REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: K. Bryson Counsel for the Defendant: N. Adams Place of Hearing: North Vancouver, B.C. Dates of Hearing: January 10, 12, 13, 14; May 6 and June 3, 2011 Date of Judgment: June 30, 2011 [ 1 ] The defendant John Busby is charged with robbery and aggravated assault of Abbid Jaffer. Busby invites a conviction for robbery.

He admits that he demanded money from Jaffer and stabbed him in the context of a botched scheme to obtain money from him. He resists a finding of guilt on aggravated assault, on the basis that he did not have the necessary intent. [ 2 ] Counsel agree that if I find Busby committed the offence of aggravated assault, that offence is included in robbery, and a conviction should not be entered: R. v . Doliente , [1996] 2 S.C.R. 11 .

It is important however to make a finding of fact on the issue of intent, as it will have relevance in characterizing the facts when sentencing on the robbery. [ 3 ] Both counsel provided able and thorough submissions on the issues raised, including summaries of the two principal witnesses, Jaffer and Busby. As there were no other witnesses to the incident itself, the principles of R. v . W.D., 1991 CanLII 93 (SCC) , [1991] 1 S.C.R. 742 come into play. It is necessary for me to consider whether I am in a position to reject Busby’s version of events.

If I do not reject it, the facts must be resolved in favour of the defence for the purpose of deciding whether aggravated assault has been established. [ 4 ] I will start by setting out the mens rea for the offence of aggravated assault. The offence consists of wounding, maiming, disfiguring or endangering life. There must be a breaking of the skin. This has the effect that bodily harm is always an included offence of an aggravated assault: R. v . MacPhee (1978), 1978 CanLII 2409 (NS CA) , 45 C.C.C. (2d) 89 (N.S.S.C.A.D.) [ 5 ] In R. v .

Nanemahoo , 2011 ABCA 182 , the Alberta Court of Appeal revisited the issue of intent for the offence of aggravated assault. The Court stated: 21 The mens rea for aggravated assault is the mens rea for assault simpliciter plus the objective foresight of the risk of bodily harm: R v Williams , 2003 SCC 41 , [2003] 2 SCR 134 at para 22 . 22 There is no requirement of proof of an intention to maim, wound or disfigure the complainant. At law, the same mens rea applies to aggravated assault as it does to assault causing bodily harm.

The only difference between those two offences is the extent of the injuries occasioned to the victim. In convicting the respondent of the lesser charge of assault causing bodily harm, the trial judge must have held that the respondent had the mens rea as would be required for assault causing bodily harm which is the same mens rea as

required for aggravated assault. [ 6 ] Bearing in mind that the Crown must establish only objective foresight of bodily harm, I am at something of a loss to understand what difference it makes if the wounding happened as described by the complainant, or as described by the defendant, with due respect to counsel.

As will become apparent when I summarize the facts, both versions support a finding that the defendant had the requisite intent, that of assaulting the complainant where bodily harm was the foreseeable consequence. [ 7 ] In any event, because the timing of the wounding has relevance to sentencing on the robbery, I will consider whether the version advanced by the Crown through the complainant Jaffer has been proven beyond a reasonable doubt. Facts [ 8 ] Abbid Jaffer is a 29 year old college student. He suffers from schizophrenia, for which he receives medication.

It appears that the defendant was not aware of this. Although he has consumed illicit substances in the past Jaffer denied being under the influence of any substances on the date of the offence. [ 9 ] Jaffer met an individual named Alim Vellani through a friend from his mosque. They started associating in the winter of 2009, sometimes going to the casino together. Jaffer met the accused John Busby through Vellani, toward the end of December. Busby is much larger than Jaffer, by perhaps 6” in height and 50 lbs in weight. [ 10 ] On the offence date, Jaffer called Vellani to arrange a trip to the casino.

Vellani told Jaffer to meet him at the back of his apartment building in the carport, where he usually met him. Jaffer had taken about $300 out of the bank and spent some of it on cigarettes before he arrived at Vellani’s. [ 11 ] When he stopped to buy the cigarettes, Jaffer called Vellani, who said he with his dad at London Drugs and would be there in a minute. Jaffer arrived at the carport to find Busby sitting on a ledge, also apparently waiting for Vellani. Jaffer told him Vellani was with his dad and would be there in a few minutes.

He gave Busby a cigarette. [ 12 ] As Jaffer described the incident, he was kneeling or crouched down with his back was against the wall of the carport, leaning against it, and texting on his phone. He asked Busby what one of the text abbreviations meant and Busby told him. At that point Busby pulled out a knife, held it at throat level, and said, “Give me your money, I know you have it,” or words to that effect.

Jaffer said the knife was placed in such a manner that he could only move his head a bit, but he maintained he could see a knife, “something shiny and yellow” in Busby’s right hand, six to eight inches from his throat, over his left shoulder. [ 13 ] Jaffer said he started to get up, and yelled, ‘What the hell?” He thought Busby was joking. As he was getting up, Busby punched him, he said, which is when he realized this was “actually going to happen”. He said as soon as he thought about running, Busby grabbed his sweater.

Jaffer tried to pull away, but was not able, so he hit Busby two or three times, to try to get him to let go of his sweater. Then felt a “ping”, but did not immediately recognize he had been stabbed. He was still trying to break free from Busby’s hold. [ 14 ] In due course Jaffer reached down and felt something wet, saw blood on his hand, and realized that he had been stabbed. He said, “You stabbed me” to Busby. At that point Jaffer was able to break free.

He ran away down the alley and into a nearby restaurant, where he was assisted by an off duty police officer and an ambulance was called. [ 15 ] In cross-examination Jaffer said his memory had become more detailed since he made his statement to police in the hospital. He did not think he had lost any money in the incident as he did not pull out his wallet, though his hat and his cigarettes went missing. He surmised from Busby’s statement, “I know you have it,” that Vellani told Busby that he had money on him. He believed Vellani had set him up for a robbery. They were no longer friends.

He denied that Busby had said, “Do me a favour and give me the money.” [ 16 ] Jaffer denied that Busby pushed him or grabbed his jacket at the beginning of the incident. As he got up from crouching, Jaffer raised his left elbow toward his shoulder where the knife was. The first contact was Busby punching him in the head, near the edge of his left eyebrow, though he may have pushed him later in the incident. [ 17 ] Jaffer initially denied in cross-examination that Busby had ripped his jacket, although he had said in his police statement that he thought it was ripped.

It became apparent he based his response in cross-examination on having viewed the jacket in Court, and believing it did not have a rip in it. When tt was re-produced, and found to have a rip in the lapel area, Jaffer admitted that he had changed his answer because he believed it was not ripped. [ 18 ] When he was interviewed in the hospital, Jaffer asked the police officer who interviewed him if the knife blade was yellow.

Notably, as well, in describing the incident, he told the officer, “I stood up, he grabbed a hold of me and he gave me a shot in the head.” (Emphasis added.) In cross-examination he said when he spoke to the officer he was feeling the effects of his injury and he had remembered more about the incident afterwards. He denied he had altered his evidence because it would not have been possible for Busby to both hold him and punch him, while also holding the knife. [ 19 ] I noted that each time he was challenged on the sequence of events, Jaffer reiterated his narrative, in a rote-like fashion.

This occurred at least four times; each time, Jaffer went lock-step through the entire incident as if trying to recite something from memory, not able to start mid-way through the sequence. [ 20 ] As well, I noted that Jaffer’s mother sat throughout the proceedings and he looked at her from time to time, in particular, during the portion of his evidence when he was asked about whether he sometimes did cocaine with Vellani. [ 21 ] In his testimony, Busby said he had returned to North Vancouver after working up north for a time, and had no place of his own.

He sometimes stayed at Vellani’s residence and had some of his belongings stored there. He met Jaffer through Vellani on one or two occasions when Jaffer was at Vellani’s residence, with other people. They all drank, used cocaine and marihuana together, including Jaffer. [ 22 ] On the day of the incident Vellani asked Busby to pay $350 to $400 rent for using his place. Though he had a job lined up, Busby did not have any money and would not get a pay cheque for some weeks. [ 23 ] Vellani came up with the idea of taking money from Jaffer.

Vellani knew that Jaffer was coming to his house with money to go to the casino. He suggested to Busby that he should take the money from him, while Jaffer was waiting out back for Vellani. Vellani was going to tell Jaffer he was out with his father, and have him wait. He told Busby when to be there. [ 24 ] Busby was with Vellani when he made some of his calls or texts to Jaffer. Vellani knew Jaffer had money from their discussion about the casino.

Busby believed that Jaffer usually supplied the money for their outings, and he believed he got his money from either his parents or the drug trade. [ 25 ] Busby was to execute the robbery and give half of the money to Vellani, so he would have some for his own use, until he got paid and gave Vellani the rest of what he owed him. Busby drank heavily with Vellani while they were making these plans. He admitted this was not out of character and he was drinking regularly in that time period. Vellani told him the amount of money was small for Jaffer and it was unlikely he would involve the police.

Vellani said, or Busby knew, that Vellani had told Jaffer Busby had a reputation as a bit of a dangerous person. Busby believed this would encourage Jaffer to give up his money without a fight. Vellani also told Busby he would calm Jaffer down and convince him that they would pay him back if he did not go to the police. [ 26 ] Busby said he knew what he was doing was wrong, but he was desperate. He was easily persuaded to participate, but did not intend to use violence when he went there. He conceded that he was not thinking rationally. [ 27 ] Busby did not remember which of them arrived first in the carport.

They chatted about where Vellani was and Busby told Jaffer to text him. Jaffer was texting on his phone. Busby denied looking at any words on Jaffer’s phone. He recalled that Jaffer was leaning on a post with one knee up. [ 28 ] Busby said that when he finished his cigarette, he said to Jaffer, “I need another favour, I am going to need that money,” or words to that effect. Jaffer asked if it was a joke, and things “went crazy”. They were about two feet apart. Jaffer did not seem to take him seriously.

Busby did not have his knife out at this point; it was in his pocket. [ 29 ] What happened after that happened quickly, he said. There was a tussle, with some shoving and punching. Busby received the worst of it. Jaffer hit him two or three times. He started to go down, so he grabbed onto the front of Jaffer’s shirt or jacket to prevent himself from falling. As he went down, he twisted his back, ending in a crouched position on his knee.

He was holding onto Jaffer with his left hand and using his other arm to prevent the blows. [ 30 ] After he had received a couple of blows, Busby said, he reached into his pocket, and tried to fumble his knife out of its sheath. He nicked himself in the process, but got it out, and took a blind swing in Jaffer’s direction. Jaffer was standing above him. [ 31 ] Busby felt the knife stop, and knew he had made contact, but said he was not aware that he had punctured Jaffer.

Jaffer took a few more swings at him, then stood back, seemed shocked, and said “I can’t believe you stabbed me.” He was holding his back and took a step or two back, which permitted Busby to get to his feet. [ 32 ] Busby did not think he had punctured Jaffer because he had several layers of clothing. He did not intend to stab him or make contact at all. He did not see an injury or any blood until later, on the knife, but thought it was from nicking himself when unsheathing it. [ 33 ] Busby headed to a prearranged meeting place with Vellani and told him things had not gone well and he may have stabbed Jaffer.

He said he threw the knife in the bush. [ 34 ] Busby denied that he used any force to obtain the money, only to defend himself when Jaffer started to retaliate. He had only carried the knife, he said, because he was in the habit from being up north, and had not really thought a lot about it. He only brought it out and used it because he was on the ground and wanted to “create some space,” to get Jaffer to stop hitting him, and to get onto his feet. [ 35 ] He said Jaffer had struck him at least three times in the head before he got out the knife.

He had tried to respond with blows but may have missed because he lost his balance from being struck. Busby said he pushed Jaffer first, because he was getting pretty close to him and he wanted to create space, to end the altercation. Jaffer was getting aggressive and was up close in his face a little bit. Jaffer pushed him back, he said, and then started punching. [ 36 ] Busby later said that Jaffer had gotten into his face, pushing and shoving, before Busby pushed him.

When challenged on this discrepancy in cross-examination, he resiled and said that Jaffer had just “gotten mouthy”. [ 37 ] Busby had the knife was in a buttoned sheath. He would have undone the button and removed it from the sheath in his pocket. Based on what Vellani had told him he anticipated that Jaffer would not have a weapon. He just swung the knife blindly toward Jaffer, and did not intend to connect. He was remorseful about the injury that he caused. He did not know how badly he was injured until he heard about it from the police.

He was aware that the knife was very sharp. [ 38 ] Busby conceded in cross-examination that he could have walked away when Jaffer did not just turn over the money and that he had the advantage because Jaffer was surprised. He said he persisted because he still wanted the money. [ 39 ] Busby maintained that he grabbed Jaffer because he did not want to go down, and was afraid he would get kicked. After he went down on his knee, Jaffer was still punching him.

[ 40 ] Crown counsel asked Busby why he didn’t just push Jaffer away and leave. He said it would have been difficult to do so with one hand. She put to him that he would have had two hands, unless the knife was already in one of them. He corrected himself, saying it would have been difficult to push with two hands. He later said he did not have time, and his back was twisted. He ultimately admitted he did not even try to stand up or leave, instead of reaching for his knife. He maintained however that his main desire was to create space between them.

Submissions [ 41 ] Defence counsel points to frailties in the complainant’s recollection of the events, inconsistencies between his statement and his evidence, and the absence of supportive evidence upon which to found a rejection of the evidence of the defendant. She also pointed to certain evidence led from Cpl. Kokkoris on the voir dire as being supportive of the defendant’s evidence. [ 42 ] There was no admission in this case that the evidence led in the voir dire become part of the evidence on the trial proper.

Crown counsel did not tender the portions of the defendant’s statement that were ruled admissible. [ 43 ] There is no basis on which it would be proper for me to consider evidence led on the voir dire , on the trial proper, without an admission on the part of counsel. In any event, to the extent that such evidence consists of hearsay or other types of evidence that would not be admissible on the trial, with or without a ruling, I may not properly consider it: R. v.

Wilson , 2011 BCCA . [ 44 ] I do not however find that this case turns on the admissibility of that evidence or whether the defence has been prejudiced by the failure to consider whether a ruling should have been made admitting any of the voir dire evidence. [ 45 ] The Crown urges that I reject the evidence of Busby on essentially the following bases: 1) Busby’s admitted consumption of alcohol; 2) The size disparity between Busby and Jaffer; and 3) inconsistencies and contradictions in his evidence, including his inability to explain adequately why he brought out the knife at the point when he admitted he did so.

Analysis [ 46 ] In looking at the evidence I must observe firstly that there is a remarkable absence of supportive evidence. No forensic analysis was performed. Photographs were taken of Jaffer’s blood trail from part way down the alley to the restaurant, but none of the carport scene of the crime. Police did not follow up the contents of Jaffer’s cell phone. [ 47 ] A prior ruling necessitated exclusion of a portion of Busby’s statement to the police. The complainant was interviewed only once, in hospital, while in the throes of his life threatening injury.

It appears that no real follow up investigation was performed. Vellani was not charged and did not testify, so it is not known whether his prior discussions with Busby involved the suggestion, for instance, that a knife would be used. [ 48 ] Accordingly, there is no independent evidence supportive of Jaffer’s version of the events.

The only basis on which I could find that I prefer his evidence would be based on a finding that the internal inconsistencies or inherent implausibility of the evidence of the defendant were fatal to his credibility. [ 49 ] Bearing this in mind, I find firstly, in relation to whether Busby wielded the knife at the outset of the robbery, I am unable to resolve the conflict on the evidence. Jaffer’s evidence differed from his statement in terms of the sequence of events. If Busby grabbed his jacket with one hand, and punched him with the other, it is unlikely he was holding the knife in either at that time.

The glint of yellow may have been a knife; it may not. His rote reiteration of the sequence of events left me with some uncertainty as to whether he was operating from an actual or a learned memory of the events. [ 50 ] On the other hand, I reject Busby’s evidence regarding the timing and his intentions when he brought out the knife, for a number of reasons. His explanation for carrying the knife, out of habit, implying it was absent minded, is not believable.

He clearly gave this explanation in an attempt to paint the knife as an afterthought, but it is simply not believable that he was aware throughout the events that he had it with him, particularly in light of the amount of planning that went into the crime.

That he knew it was there and intended to use it is in my view evinced by his decision to use it instead of taking other less aggressive defensive actions that were available to him. [ 51 ] In this respect, I agree with the Crown that Busby’s explanation for having taken out the knife when he did, again, as if it was not his original intention, is not believable. He gave several different reasons for not simply retreating at the outset when Jaffer became aggressive, none of which rang true.

His reluctant admission that he remained because he still wanted the money in my view belies his denial of an intention to use the weapon from the outset, if he needed to. [ 52 ] I agree as well that the size disparity and the element of surprise were such that it is implausible that Jaffer was seriously able to intimidate Busby or take him to the ground as Busby describes without himself falling in the process.

It is this falling to the ground that Busby relies upon in maintaining that it was necessary for him to take out the knife when he did, but his explanations for that decision were inconsistent and contradictory. He stated he did not have time, which is at odds with his ability to stay long enough to unsheathe and wield the knife. [ 53 ] He then said he had twisted his back, which I accept may have occurred at some point in the events.

However, if the back injury was his excuse for not retreating or retaliating without a weapon, it would seem somewhat inconsistent with his ability to maneuver the knife out of its sheath and his pocket.

[ 54 ] Perhaps the most telling bit of evidence however was Busby’s first response when he said that he could not push Jaffer away because he only had one hand available. That would seem to reflect the true state of affairs: the other hand was occupied because he took the knife out earlier, and for a different reason, than he admits. [ 55 ] As I said at the outset, in terms of the elements of aggravated assault, I am not entirely convinced that a lot turns on the precise timing, in any event. Even on his version, Busby had no right to defend himself, much less use a knife to do so.

He does not assert he was acting in self defence, merely that because he was back on his heels, he flailed out without intent to cause harm. Even if that is what happened, Busby flailed out with a knife in circumstances when he had already committed an assault and a robbery of his “assailant”. Jaffer was entitled to respond with force, and Busby’s physical retaliation to that constituted an ongoing assault. [ 56 ] Busby also admits to knowing the knife was very sharp. He says he cut himself inadvertently during the altercation. He felt it hit Jaffer’s body and encounter resistance. That entails a degree of force.

He was striking at or swiping at Jaffer at the time. Does he receive the benefit of an asserted intention not to make contact, or more aptly, the lack of an intention to do so? The flailing, in the circumstances, whenever it occurred, was an assaultive gesture. He surely must be taken to have foreseen that bodily harm could result. To my mind, that is sufficient for aggravated assault. [ 57 ] For the purposes of the facts on sentencing, I do accept that Busby may not have taken out the knife at the outset to use to confront Jaffer, in committing the robbery.

I nonetheless find that he did so immediately afterward, and at a somewhat earlier point than he admits, in order to counter Jaffer’s resistance to his own unlawful act. [ 58 ] The conviction should reflect that I have found this was a robbery by assault with intent to steal under s. 343(c). I have considered whether the fact that the theft was incomplete affects the application of the case law relating to included offences. Arguably, had this robbery been charged under

section 343(b), which defines wounding after a completed theft as one means of committing a robbery, I should have found it to be an attempt. The facts of Doliente related specifically to the commission of the full offence as described in 343(b). [ 59 ]

Section 343(

c) requires an assault with intent to steal, but does not require a completed theft. However, the information in this matter charged simply “did rob” which incorporates as included offences any of the four enumerated means of committing robbery under

section 343: R. v. Horsefall (1990), 1990 CanLII 1039 (BC CA) , 61 C.C.C. (3d) 245 (B.C.C.A) , at 249-50 . [ 60 ] The defendant would have been on notice that he had to defend against aggravated assault in these circumstances, and I am satisfied that the principles contained in R. v. Doliente apply. A conditional stay will be recorded on Count Two. ______________________________ The Honourable Carol Baird Ellan Provincial Court Judge