2020 QCCQ 2534, 2020 QCCQ 2534

R. c. Keenan 2020 QCCQ 2534 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal and Penal Division” No.: 550-01-103381-176 DATE: July 8, 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ______________________________________________________________________ THE QUEEN v.

CARL KEENAN Accused ______________________________________________________________________ VERDICT ______________________________________________________________________ [ 1 ] Carl Keenan is charged with assaulting Diane Davies and causing her bodily harm on December 14, 2017, in La Pêche. [ 2 ] The Court must decide whether the prosecution has met its burden of proving beyond a reasonable doubt that: - The accused assaulted the complainant thereby causing her bodily harm; - At least one of the criteria essential to self-defence or the defence of property, as the case may be, was refuted. [ 3 ] With respect to bodily harm, the accused does not contest that the bruises and contusions suffered by the complainant during the events, which caused her physical pain for a week, constitute “bodily harm” within the meaning of s. 2 of the Criminal Code (Cr.

C.). [1] CONTEXT [ 4 ] At the time of the events, the accused and the complainant had been together for six or seven months. Theirs was a dysfunctional relationship, marked by distrust and frequent arguments. [ 5 ] The offence allegedly occurred in the Gatineau Park, where the couple had rented a yurt for the weekend. After arriving at the yurt on Friday night, the couple quarrelled when the accused mentioned a previous girlfriend. They ended up sleeping on separate bunk beds. On Saturday, the sour mood continued when the couple argued repeatedly over which ski trails to take.

The frustration between the two grew to the point that the accused decided to head back to the yurt by mid-afternoon, leaving the complainant to continue skiing alone. [ 6 ] When the complainant returned to the yurt, the accused was, as he put it, “working on getting drunk”. The complainant also started consuming a lot of alcohol. [ 7 ] The acrimony between the two escalated during the evening. Among other things, the accused got upset when the complainant participated in a “Facetime” call he had with his children.

The accused spent the evening sitting outside by the camp fire while the complainant remained inside the yurt. What little interaction they had was mainly insults and accusations. [ 8 ] According to the complainant, she got concerned about the accused’s aggressive attitude and his state of intoxication. She decided to seek refuge in a nearby yurt, which was occupied by a group of men.

After talking to her, two of these men decided to go discuss the situation with the accused. [ 9 ] According to the accused, the men told him that the complainant wanted to have sexual relations with them (an improbable scenario and one which the complainant categorically denies). The accused says he went to the men’s yurt to check on the complainant

and make sure nobody was taking advantage of her. When the complainant saw the accused arrive, she resigned herself to returning to their yurt with him, concluding that the neighbours would not be of any help. [ 10 ] The complainant alleges that while they were on their way back, the accused, who was furious, pushed her into a snowbank, insulted her, and accused her of infidelity. The accused denies having done this. [ 11 ] Back inside their yurt, the complainant started filming her interactions with the accused with her cell phone, unbeknownst to the accused.

In this video, which was filed into the record as P-1, we see the accused push the complainant while gathering his belongings to leave the yurt. The accused submits he acted in self-defence and in defence of his property. [ 12 ] The video ends when the accused picks-up the complainant’s cell phone. As discussed in more details below, an altercation ensued, during which the accused admittedly hit the complainant while she was trying to retrieve her cell phone. The accused submits he acted in self-defence. ANALYSIS 1. THE LAW Self-defence [ 13 ] Self-defence is set out under s. 34 Cr. C.

According to that provision, when using force against another person, a person is not guilty of assault where: 1. He or she believes on reasonable grounds that force is being used against them or that a threat of force is being made against them (criterion of reasonable apprehension of force); and 2. He or she acts for the purpose of defending or protecting themselves from that use or threat of force (criterion of defensive purpose); and 3.

The act committed is reasonable in the circumstances (criterion of reasonable response). [2] [ 14 ] When self-defence is raised, the prosecution must convince the trier of fact that it has refuted at least one of these three criteria beyond a reasonable doubt. [3] [ 15 ] The first criterion, the reasonable apprehension of force, refers to the accused’s perception, which must be objectively verified (that is, based on reasonable grounds). [4] This criterion is objective, while allowing the Court to consider some of the characteristics of the accused and the context. [5] [ 16 ] The second criterion, the defensive purpose, is subjective because it examines the accused’s state of mind, the driving force behind their response. [6] In responding, the accused must use force only to protect or defend herself or himself, rather than to take revenge on, or attack, the other person. [7] [ 17 ] The third criterion, the reasonable response, involves an objective analysis. [8] In this regard, s. 34(2) Cr.

C. offers a non- exhaustive list of factors the Court may consider to assess the criterion of the reasonable response, including the nature of the force used or threat, [9] the nature and proportionality of the response, [10] and whether there were other means available to respond to the use of force. [11] None of these factors is mandatory, [12] and the Court may assign the weight it deems appropriate to any factor that it accepts, whether or not it is listed under s. 34(2) Cr.

C. [13] [ 18 ] The reasonable response criterion does not require that an accused raising self-defence has perfectly assessed the nature and measure of the necessary response. [14] The Court must keep in mind that the person who responded to the use of force or threat thereof did so in stressful circumstances and often without the time to first think at length about his response. [15] Defence of Property [ 19 ] Defence of property is set out under s. 35 Cr. C. The accused did not specify whether he was arguing paragraph (

b) or (

c) of this provision but, in light of the facts argued, it may be inferred that the following four criteria are called into play: 1. The accused believes, on reasonable grounds, that he is in peaceable possession of property; 2. He believes on reasonable grounds that another person is about to damage or destroy the property, or make it inoperative; 3. He is acting to prevent the other person from destroying or damaging the property, or making it inoperative; 4. He is acting reasonably in the circumstances. [ 20 ] These four criteria must all be present.

When defence of property is raised, the prosecution must convince the trier of fact that it has refuted at least one of the four criteria listed above beyond a reasonable doubt. [16] [ 21 ] The first and second criteria listed above involve examining the accused’s perception and then determining whether, from an objective but contextualized point of view, this perception was reasonable. [17] The defensive purpose driving the accused (3 rd criteria) must be assessed subjectively, whereas the reasonableness of the response (4 th criteria) must be assessed objectively. [18]

[ 22 ] The defence under s. 35 Cr. C. applies to any property. [19] 2. THE LAW APPLIED TO THE FACTS 2.1 The events recorded on video [ 23 ] The accused does not contest that he pushed the complainant during their quarrel inside the yurt. Some of his actions and a portion of the quarrel were filmed, without his knowledge, by the complainant on her cell phone. This video, divided into three segments, was filed under P-1. [20] During his testimony, the accused acknowledged the reliability of this video. [ 24 ] Pushing the complainant constitutes an intentional application of force to her, without her consent.

The prosecution has therefore proved all the elements of the offence of assault under s. 265(1)(

a) Cr. C. beyond a reasonable doubt. However, the accused submits that he acted in self-defence, and to defend his property. [ 25 ] Has the prosecution refuted beyond a reasonable doubt at least one of the three criteria essential to self-defence?

Furthermore, has the prosecution refuted beyond a reasonable doubt at least one of the four criteria essential to defence of property? [ 26 ] For the following reasons, the Court responds affirmatively to these two questions. 2.1.1 Self-defence [ 27 ] Although it needed to do so with respect only to one of the three criteria essential to self-defence, the prosecution successfully refuted all three of them beyond a reasonable doubt. Let us examine them in turn.

A) Did the accused believe, on reasonable grounds, that the complainant was using force against him or threatening to do so? [ 28 ] At the beginning of the events recorded on the video filed under P-1, the accused is busy gathering his personal belongings to leave the yurt. The two parties are quarrelling. The accused tells the complainant that he wants to end his relationship with her and he accuses her of being unfaithful with the men in the neighbouring yurt. The accused is very frustrated and wants nothing further to do with the complainant that night.

He tells her that he will be leaving the yurt in a few minutes. [ 29 ] The complainant walks toward him, however, and tries to discourage him from leaving. In doing so, she gets very near to him while he is busy gathering his things. The accused does not appreciate this proximity, or the fact that the complainant lightly touches his face and arm a few times while they are quarrelling. He feels like she is trying to further anger him. [ 30 ] The accused testified that he pushed the complainant once, on the hip, telling her “Get away from me, get lost, get out of my space”, among other things.

The complainant took a few steps back but immediately came toward him again and once more touched his face lightly. The accused testified that, at that point, he pushed the complainant again to, as he put it: “Keep her out of my space, off my gear, stop her from touching me, bothering me”.

This second push, stronger than the first, sent the complainant flying against the bed, as will be examined in more details below. [ 31 ] On cross-examination, the accused reiterated that the complainant was bothering him by being too close to him and that she was trying to “pick a fight”. [ 32 ] Did the accused believe that the complainant was using force against him, or threatening to do so when he pushed her and she fell against the bed? In his testimony, the accused never mentioned that he believed that she was using force against him.

Nor did he mention that he believed that the complainant was threatening him in any way whatsoever. Certainly, the accused recounts that the complainant touched him on a few occasions, but he did not allege that these acts were imbued with any force. [ 33 ] The accused submits that the complainant stepped on his fingers with her feet when she was standing close to him, which the complainant denies. On the video, the accused makes no mention of this, nor does he express or show any physical pain before pushing the complainant.

The Court is convinced that, had the complainant stepped on the accused’s fingers when she approached him, he would not have failed to mention it to her, given how he was vehemently criticizing her at the time. [ 34 ] All these elements lead to the conclusion that the accused did not believe that the complainant was using or threatening to use any force before he pushed her. [ 35 ] Instead, the acts of the complainant, her persistence, only annoyed the accused.

He wanted the complainant to get away from him because her presence angered and bothered him, and hindered his preparations for departure. [ 36 ] In addition, when the complainant pulled her pants down in front of the accused to convince him that she had not cheated on him with the men in the other yurt, this act, the physical proximity of the complainant and her interventions, bothered the accused and frustrated him, because he was very angry with her. [ 37 ] The Court concludes that the evidence does not show that the accused believed that the complainant used force against him, or threatened to do so.

This prerequisite for self-defence is therefore absent. [ 38 ] Furthermore, even if the accused had believed that the complainant used force against him, when she insisted on being near him and touching him lightly, this belief would not have been based be on reasonable grounds.

A reasonable person placed in the situation of the accused would not have come to this conclusion. [ 39 ] On the video, when the accused informs the complainant that he intends to leave the yurt in a few minutes, she gets up and pleads with him to wait until the next day. (Indeed, the accused’s car was parked at least an hour’s walk from the yurt, and the night was

particularly cold.) The complainant insists: “You will freeze to death. Please go to bed. I understand we’re done, I won’t speak to you, but please just go to bed, because if you head back tonight, you will freeze to death.” The accused, however, refuses to stay and continues to insult the complainant and accuse her of infidelity. [ 40 ] The video clearly shows the power imbalance between the two parties. The complainant is intoxicated with alcohol, her speech is slurred, and she does not seem steady on her feet. She attempts to discourage the accused from leaving and denies having been unfaithful.

She does not insult the accused but, instead, attempts to defuse the situation. Awkwardly, she pulls her pants down in an effort to demonstrate that she has not been unfaithful with the men in the neighbouring yurt. [ 41 ] The accused, on the other hand, is clearly seething with anger. He insults the complainant profusely, using vulgar and offensive language. His tone of voice and behaviour are extremely aggressive toward the complainant. [ 42 ] The video shows that when the accused pushes the complainant and she falls against the bed, he is only reacting to her approaching him again.

She is not threatening him, she is not using any force against him, or showing any hostility. [ 43 ] A reasonable person, placed in the situation of the accused, could not find that the complainant, through her actions, was using force or was threatening to do so. [ 44 ] Accordingly, the prosecution has refuted the first of the three criteria essential to self-defence beyond any reasonable doubt. Therefore, the accused cannot use this defence. [ 45 ] In the alternative, even if a reasonable doubt remained with respect to the first criterion of self-defence, that defence should still be rejected.

The prosecution has successfully refuted the second criterion beyond a reasonable doubt, for the following reasons.

B) Did the accused act for the purpose of defending or protecting himself from the use of force or the threat of it? [ 46 ] As previously examined, the second criterion concerns the defensive purpose: did the accused act for the purpose of defending or protecting himself? What was the accused’s state of mind; what drove him at the time of his response? [21] [ 47 ] Questioned by his counsel about his intentions when he pushed the complainant, the accused indicated that he did so for the following reasons: “Get her out of my space, off my gear, stop her from touching me, bothering me”.

The accused did not refer in his testimony to the need to defend himself from an attack or to protect himself. Certainly, he wanted the complainant to stop touching him, but the touches in question were only light touches, without force or animosity. [ 48 ] The video shows that the accused acted purely out of anger . When he pushes the complainant and she falls against the bed, he is accusing her of being unfaithful with the men in a nearby yurt.

His remarks are very crude, but it is appropriate to repeat them here to fully illustrate the accused’s jealous and angry state of mind at that very moment: “You were sneaking around, putting your f… snow shoes on, and you f… left behind my back. And you went over to that cabin [the other yurt] behind my back. That was your choice, that’s on you. Yeah, that was your f… choice, I f… saw that coming a mile away. So when buddy came over tonight, and said ‘just so you know, your girlfriend is over at my cabin’ I said ‘yeah, I figured, I f… know’.

So don’t pretend like, you f…, you weren’t up to anything up there, I f… know exactly what you were doing.” [ 49 ] After these remarks, the accused continues on a long tirade, a soliloquy lasting several minutes during which he swears and relentlessly insults the complainant, accusing her of being unfaithful and repeating that their relationship is over.

The complainant stays quiet this whole time. [ 50 ] The evidence, including the video, proves beyond a reasonable doubt that the accused’s pushes of the complainant, including the one that sent her flying against the bed, were motivated by anger, jealousy, and frustration rather than by a need to protect or defend himself. [ 51 ] Therefore, self-defence must be rejected. [ 52 ] In the alternative, even if a reasonable doubt remained with respect to the first and second criteria, self-defence should still be rejected because, for the following reasons, the prosecution has successfully refuted the third criterion beyond a reasonable doubt.

C) Did the accused act reasonably in the circumstances? [ 53 ] In the video, the complainant, who is intoxicated, is clearly unsteady on her feet. The degree of force used by the accused to push her away was excessive when used against such a vulnerable person whose balance was unsteady. Also, even if the complainant had represented some risk to the accused’s safety, which is not the case, his response would have nevertheless been disproportionate in the circumstances. [ 54 ] Furthermore, there were other means to avoid an escalation of force.

The accused could have tried to discuss calmly with the complainant, instead of yelling and insulting her as he did. [ 55 ] The accused submits that, when she was pushed, the complainant took two or three steps back and then deliberately continued her trajectory to place herself strategically and purposefully against the bed, simulating that she had been pushed there by the accused. The Court does not accept this version.

The video clearly shows that, when pushed, the complainant was thrown suddenly and directly against the bed, in a single movement, swiftly and with a degree of violence that she could not have feigned. [ 56 ] Taking the following factors [22] , among other things, into consideration, the Court concludes that the accused did not act reasonably in the circumstances : - The fact that the complainant only touched the accused very lightly while trying to convince not to risk his life by leaving the yurt

in the middle of a very cold night; - the role played by the accused during this incident; - the physical capabilities of the parties in question; and - the fact that there were other means available to respond to the use or potential use of force by the complainant (for example, discussing calmly with her). [ 57 ] The prosecution has successfully refuted beyond a reasonable doubt the third criterion for self-defence. [ 58 ] For all these reasons, self-defence does not raise a reasonable doubt in this situation. 2.1.2 Defence of Property [ 59 ] At the beginning of its closing arguments, the defence raised defence of property, but then said very little in support of it.

And rightly so, because this argument has little merit. [ 60 ] During his testimony, the accused did not raise any fear that the complainant might damage or destroy his property or make it inoperative. That is, however, one of the essential criterion for this defence.

The accused instead said that the complainant’s trampling of his things was interfering with his efforts to pack up and leave the yurt. [ 61 ] Also, when questioned as to which property the complainant was allegedly trampling, the accused could identify only...a trash bag. [ 62 ] For these reasons, the Court concludes that the prosecution has refuted beyond a reasonable doubt that the accused believed, on reasonable grounds, that the complainant was about to damage his property when he pushed her. Defence of property therefore does not apply to this case. [ 63 ] But there is more.

Even if there remained a doubt on this criterion of defence of property, the Court finds that, for the reasons given in the previous section, the accused pushed the complainant strictly out of anger, frustration, and jealousy. The accused did not act for the purpose of preventing the complainant from damaging his property.

The prosecution has also successfully refuted this criterion beyond a reasonable doubt. [ 64 ] In the alternative, even if a reasonable doubt remained with respect to these two criteria of defence of property, this defence should still be rejected because the prosecution has successfully refuted the argument that the accused acted reasonably in the circumstances when he pushed the complainant away from him.

As examined above, the accused’s response was excessive, disproportionate and avoidable. [ 65 ] For these reasons, defence of property does not raise a reasonable doubt in this case. 2.2 The altercation over THE complainant’s cell phone [ 66 ] After she was pushed by the accused and fell against the bed, the complainant remained still and silent for many minutes. She testified that she hit her head against the metal bedframe, which rendered her unconscious for an indeterminate amount of time. The complainant explained that she remembers remaining still and silent on the bed after her fall.

She perceived this period to have lasted about five minutes, but it clearly lasted much longer. Moreover, the complainant claims that she does not remember what the accused said to her right after her fall, or the steps the accused took to try to revive her. [ 67 ] On the video, the complainant argues with the accused before her fall, but she does not respond or move after her fall, despite the accused insulting her and provoking her for many minutes. [23] [ 68 ] Apparently discomfited by the complainant’s silence, the accused tries to elicit a reaction from her.

He can be heard on the video slapping her face while insulting and accusing her of being drunk. His voice quickly rises and he repeatedly yells “Wake up”, while handling the complainant’s limp and lifeless torso. During his testimony, the accused explained that he tried applying pressure to the sternum to wake her up, using a technique he had learned during his work as a police officer. The complainant remained unresponsive. [ 69 ] In the hope of eliciting a reaction, the accused yells that the yurt is on fire.

When this does not work, the accused asks: “What the f.. is wrong with you?” He starts screaming at the complainant, telling her to wake up. [ 70 ] The accused then tells the complainant that he is going and leaving her to her own fate. Still, she does not respond. The accused pretends to leave, then comes back screaming in frustration. He takes off his coat, approaches the bed on which the complainant is laying, and grabs her cell phone. This is where the video recording stops. [ 71 ] Shortly after, the complainant regained consciousness and ordered the accused to hand over her phone.

According to the accused, this sudden awakening shows that the complainant had feigned falling against the bed and fainting, that she had staged it, because she was filming everything without his knowledge. [ 72 ] The Court does not accept this scenario. As previously stated, the complainant’s fall against the bed, after she was pushed by the accused, was so sudden and so fast that it cannot have been feigned.

Furthermore, the complainant would not have lowered her pants as she did in front of the camera had she planned to share the video with others in a bid to harm the accused. [ 73 ] It also appears from the video that the accused himself realized that the complainant was unconscious while he was trying to revive her. He criticized her for being intoxicated, slapped her face, yelled, and applied pressure to her sternum. He pretended to leave

the yurt, then came back, knowing that the complainant could not be left alone in her condition. [ 74 ] The complainant would have had to display great acting talent to feign unconsciousness so convincingly and deceive the accused, a police officer with over 10 years’ experience. [ 75 ] The Court concludes that the complainant did in fact hit her head on the bedframe and lost consciousness for an indeterminate amount of time during which she remained still on the bed. [ 76 ] At some point when she was listless, the complainant realized that the accused was looking through her cell phone.

She then gathered her strength to claim it. [ 77 ] The complainant testified that the accused refused to hand back her cell phone and slapped her across the face, pushed her against one of the beds, and jammed her against a door. The complainant admitted slapping the accused across the face while he held her. [ 78 ] On cross-examination, the complainant admitted that her testimony about the altercation concerning her cell phone differed in many ways from the written statement she provided to the police.

Also, she was unable to explain what might have happened during the altercation to cause the abrasions and bruises that were photographed on the accused the next day. [24] [ 79 ] More generally, other aspects of the complainant’s testimony are perplexing.

She first implied that everything was normal between herself and the accused on the Friday night, but later revealed that they had quarrelled and had ultimately slept in separate beds in the yurt. [ 80 ] The complainant also testified that on the night of the events, she went to take refuge in the neighbouring yurt because she could not call 911 since her cell phone reception was too poor in and near her own yurt. Yet, the accused had no problem taking

part in a “Facetime” call with his children that very night using his cell phone. And, when the complainant finally called 911 from her yurt, she stayed on her cell phone with the police for 40 minutes, without interruptions.

After that, she also had no problem calling her brother from her yurt while awaiting the arrival of the police. [ 81 ] For these reasons, the Court finds that the complainant’s testimony is not entirely reliable. [ 82 ] However, several aspects of the complainant’s testimony with regard to the altercation over her cell phone are corroborated by the accused. [ 83 ] According to the accused, the complainant jumped on him to retrieve her cell phone when she realized he was going through it.

He refused to hand it back, having found what he saw as an overly affectionate message from one of the complainant’s colleagues. The accused ran off with the phone while insulting the complainant and accusing her once again of being unfaithful. He also wanted, he claims, to block the complainant’s access to his Facebook account. [ 84 ] The complainant chased him and they ran in circles inside the yurt, the complainant still trying to retrieve her cell phone and the accused insisting on continuing to go through the device. He repeatedly insulted the complainant.

The complainant yelled at him to hand back her phone, which he refused to do, responding with profanity. [ 85 ] According to the accused, during the altercation, he pulled a table across the complainant’s path, and she overturned it. The accused insulted her again. She hit him in the face, and the accused admittedly responded by hitting her on the jaw and shoulder. The complainant allegedly threw a chair at him twice, hitting his arm, then his shoulder and his elbow. During this whole time, the complainant was telling him to return her phone, which he refused to do.

By the accused’s own admission, he gave back the complainant’s cell phone only at the very end of the altercation. [ 86 ] The accused argues that he acted in self-defence.

He argues that the complainant’s actions resulted in a few abrasions and bruises on his arm and shoulder, visible on pictures taken the next day and filed under D-5 and D-6. [ 87 ] The accused also submitted a video he filmed in the yurt right after the events, where an overturned table and chair can be seen. [25] In that video, it also appears that the accused and the complainant were filming each other, accusing each other of assault, and arguing about who would pay for the rental of the yurt, among other things.

The Court cannot assign any probative value to the allegations made by the accused and the complainant in this video. They knew they were being filmed.

Their statements are self-serving and appear calculated to defend themselves and accuse each other. [ 88 ] However, even based exclusively on the accused’s version, it is clear that the accused’s response to the force used by the complainant was not reasonable in the circumstances. [ 89 ] Both the testimony of the accused and the complainant show that the force she used against the accused was intended only to retrieve her cell phone, which the accused was going through and refusing to return. Instead of responding by hitting the complainant, the accused could have quite simply handed back her cell phone.

On the contrary, however, the accused insisted on doing things his way, adding fuel to the fire by insulting the complainant and accusing her once again of being unfaithful.

It was the accused who caused the altercation, which he could have easily avoided or ended but, in his anger, he insisted on keeping property that did not belong to him. [ 90 ] The role played by the accused during this incident, and the fact that there were other means available to protect himself from the force used by the complainant (i.e. handing back her cell phone) are factors [26] that the Court considers, among others, to conclude that the accused did not act reasonably in the circumstances.

The prosecution has successfully refuted beyond a reasonable doubt at least one of the criteria for self-defence. [ 91 ] The accused’s version alone is enough to conclude beyond a reasonable doubt that he assaulted the complainant and that self- defence does not apply. Self-defence does not raise a reasonable doubt in regard to the assault that the accused committed on the complainant when he, admittedly, hit her on the jaw and shoulder.

2.3 THE ALLEGED PUSH IN THE SNOW [ 92 ] The complainant alleges that while they were on their way back from the nearby yurt, the accused, who was furious, pushed her into a snowbank, insulted her, and accused her of infidelity. [ 93 ] The accused denies this. He testified that the complainant ran towards their yurt, trying to reach it first in order to lock the door and prevent him from entering. In so doing, she tripped due to her state of confusion and intoxication and fell in the snow.

The accused then tried to help her up. [ 94 ] In a case where credibility is important and the judge is confronted with conflicting evidence, the framework for the assessment of credibility, first developed by the Supreme Court of Canada in R. v. W.(D.) [27] , suggests adopting a three-pronged approach. First, if the judge believes the exculpatory evidence, including the testimony of the accused, he or she must acquit.

Second, if the judge is unsure whether this evidence is true or false, or if the judge does not believe the exculpatory evidence but he or she is left with a reasonable doubt, the judge must also acquit.

Third, even if the exculpatory evidence is not believed and does not raise a reasonable doubt, the judge must carefully assess the evidence he or she does believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. [ 95 ] The Court does not believe the accused’s testimony regarding the events that took place while he and the complainant walked back to their yurt. [ 96 ] The Court notes that, during the altercation recorded on video, the accused verbally abuses the complainant, insulting her repeatedly, accusing her of infidelity and blaming her for their failed relationship, but he never mentions that she tried to lock him out of the yurt a few minutes earlier. [ 97 ] Also, in view of the accused’s state of rage when he was filmed in the yurt, the Court cannot believe that, a few minutes earlier, the accused would have shown concern for the complainant by trying to help her up from the snow, especially after she wanted to lock him out of the yurt, as he claims. [ 98 ] The Court does not believe the evidence of the accused and it does not raise a reasonable doubt. [ 99 ] The video shows that the accused pushed the complainant several times while in the yurt, quite spontaneously and without hesitation.

Upon consideration of the totality of the evidence, the Court is convinced that the accused’s assaultive behaviour started outside the yurt and continued in that fashion once inside the yurt. [ 100 ] Contrary to what the accused submits, the Court sees no inconsistency between the fact that the complainant was pushed in the snow by the accused and the fact that she subsequently asked him not to leave the yurt. The complainant explained that the accused had never been physically violent with her in the past.

It was the escalation of events that night that led her to call 911 and report the accused’s conduct. [ 101 ] The complainant’s version about being pushed in the snow by the accused remained consistent throughout her testimony in chief and cross-examination; there were no significant contradictions. Her testimony about this event is reliable and credible. [ 102 ] The Crown proved beyond a reasonable doubt that the accused committed an assault on the complainant when he pushed her in the snow while coming back from the yurt.

CONCLUSION [ 103 ] In light of all of the above, the Court concludes that the prosecution has proved, beyond a reasonable doubt, that the accused assaulted the complainant on December 14, 2017. [ 104 ] The prosecution has refuted self-defence and defence of property beyond a reasonable doubt. [ 105 ] The accused does not contest that the complainant suffered bruises and contusions from these events which caused her physical pain for a week and constitute “bodily harm” within the meaning of s. 2 Cr. C.

FOR THESE REASONS, THE COURT: FINDS the accused guilty of assault causing bodily harm. __________________________________ ANOUK DESAULNIERS J.C.Q. Mtre Marie-Philippe Guimond-Methe Criminal and penal prosecutor

Mtre Salomon Friedman Counsel for the accused Dates of hearing: October 18, 2019, November 4, 22, 2019, December 18, 2019, February 11, 2020 and June 11, 2020