R. v. Urquhart Date:, 2013 BCPC 184

Citation: R. v. Urquhart Date: 20130624 2013 BCPC 0184 File No: 56609-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN ANDREW URQUHART REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H.K. DHILLON Counsel for the Crown: S. Smith Counsel for the Defendant: J. Humphry Place of Hearing: Richmond , B.C. Date of Hearing: April 2, 3, 4, May 8, 2013 Date of Judgment: June 24, 2013

Introduction [ 1 ] In this prosecution, the Crown alleges that the accused, John Urquhart, unlawfully assaulted Matthew McBride causing him to suffer bodily harm. The Crown led evidence from the complainant Mr. McBride and from lay and police witnesses as to the circumstances giving rise to the offence. Mr. Urquhart testified on his own behalf and called a witness of his own. Credibility is a central issue in this case Background Facts [ 2 ] In May 2011 Mr. Urquhart was the squad leader of the Richmond Coast Guard Auxiliary program, now known as the Royal Canadian Marine Search and Rescue (RCM-SAR).

In his capacity as unit leader, he chaired weekly Coast Guard Auxiliary meetings at the South Arm Community Centre in Richmond B.C. [ 3 ] Mr. McBride was an initiate who had attended Coast Guard Auxiliary meetings on and off for about one year. At the meeting of May 17, 2011 as issue on the agenda was finalizing the role of the Coast Guard Auxiliary in the Steveston Tall Ships Festival taking place in June 2011. Mr.

McBride attended this evening meeting in the expectation that he would report on information gleaned from his meetings with the City of Richmond public works committee concerning the Festival. [ 4 ] Mr. Urquhart ran a crisp meeting, sticking to the agenda, and moving efficiently over the agenda items. The meeting followed a rather informal Roberts Rules of Order format. The agenda was not published or distributed to the attendees per se. At this particular meeting, Mr. Urquhart followed the agenda items as displayed on a computer monitor available to him, delivered the necessary information and moved on.

He gave an update about the Tall Ships event and moved to the next agenda item. [ 5 ] At this point, Mr. McBride interjected to say he had some further information to offer about the Tall Ships event. His request to reopen the issue was rebuffed by Mr. Urquhart. There was a verbal exchange between the two that resulted in Mr. McBride suddenly and rudely leaving the meeting. [ 6 ] Timothy David Kendrick, on the Board of Directors of RCM-SAR and president of Richmond Marine Rescue Society, was in attendance at the meeting, as were Kevin Robertson and Barry Hastings.

All three described a deterioration in the tone of the meeting during the exchange between Mr. McBride and Mr. Urquhart. Mr. McBride had interrupted Mr. Urquhart who was dismissive of Mr. McBride’s request to revisit the topic. [ 7 ] Mr. McBride became angry, said “Screw it, I’m out of here --I don’t need this shit” and collected his belongings to leave. Mr. Urquhart responded by telling Mr. McBride derisively to “go have another drink” which offended Mr. McBride who responded “go fuck yourself” or words to that effect as he left the meeting room. [ 8 ] Within a minute of this exchange, Mr.

Urquhart turned over the meeting to the deputy unit leader and went in search of Mr. McBride. [ 9 ] What followed thereafter is in significant dispute. The result of the encounter between the two men in the parking lot of the South Arm Community Centre left Mr. McBride with a bloodied nose, a cut lip, various abrasions and soft tissue injuries and Mr. Urquhart facing a police investigation for assault. [ 10 ] On May 30, 2011 Mr. Urquhart was charged with assault causing bodily harm, contrary to s. 267 (

b) of the Criminal Code . At the trial of the matter, the prosecution called five civilian witnesses including Mr. McBride, and Mr. Urquhart called Barry Hastings and testified on his own behalf. [ 11 ] There were two independent witnesses in the parking lot during the encounter between Mr. Urquhart and Mr. McBride. Brendan Narowsky heard an escalating exchange between 2 persons in the parking lot but did not see the physical incident itself. Ms. Willox heard and saw the physical interactions between Mr. Urquhart and Mr. McBride. Mr. McBride and Mr.

Urquhart each testified to the moments before and during their involvement with each other. [ 12 ] There is no dispute that Mr. Urquhart struck Mr. McBride in the parking lot. Mr. Urquhart contends he was acting in self defence. The central issue to be determined is whether the Crown has proved beyond a reasonable doubt that Mr. Urquhart was not acting in self defence. Evidence of Brendan Narowsky [ 13 ] Brendan Narowsky is a long term member of the Board of Directors of the South Arm Community Centre.

He was walking westbound in the parking lot not paying particular attention to any one thing when he began to note a conversation that was getting louder and more heated. Mr. Narowsky walked a distance of about 50 feet which took about 30-35 seconds. At first he tried to ignore the “white noise” in the background, but as the volume increased he heard what he described as “vulgarities and pretty heavy language”. It was a very one-sided discourse, with the speaker challenging someone with strong words. That speaker was Mr. Urquhart according to Mr. Narowsky.

He heard comments such as “Why are you walking away from me?” “You’re fucking gutless.” “Be a man.” “If you’ve got something to say to me, come up to me and say it.” He also heard some “F-bombs” that were troubling to him because of the proximity of youngsters playing on the nearby basketball courts. He did not hear words such as “queer”, “faggot”, “bozo”, or “dope”.

[ 14 ] Mr. Narowsky was considering turning around to admonish the use of foul language when he heard the sounds of a struggle, including some grunts and groans. On turning around, he saw Matthew McBride on the ground. John Urquhart was standing very close and overtop of him, at Mr. McBride’s mid torso. Mr. Urquhart was facing away from Mr. Narowsky and partially blocked Matthew McBride from his view. Mr. Narowsky took a moment to process what he was seeing and then walked some 30 to 50 feet towards them. [ 15 ] He testified that Matthew McBride appeared frightened and was bleeding profusely out of his nose. Mr.

Narowsky found his cell phone and glasses on the ground and handed them to him. John Urquhart seemed calm and un-injured. [ 16 ] Mr. Narowsky was aware of the presence of two women in the lot but not of their exact location. He did not note them in the immediate vicinity of the two men and believed they approached him as he was about to deal with Mr. McBride and Mr. Urquhart. Evidence of Chantal Willox [ 17 ] Ms. Willox was 25 years of age and had just finished a fitness class with a friend at the community centre. As she was walking to her car in the parking lot her attention was drawn by some yelling.

She saw two men walking eastwards, one being John Urquhart and the other Matthew McBride. Mr. Urquhart was following Mr. McBride and yelling at him. She felt the words Mr. Urquhart used were obnoxious and threatening but she could not make them out at first. She then saw Mr. Urquhart close a distance of 10 feet to Mr. McBride and assault him. [ 18 ] What she saw from a near distance was startling and she froze for a second before running straight towards them. On seeing the blows, she was fearful that John Urquhart was going to kill Matthew McBride. She said that Mr. Urquhart punched Mr.

McBride in the head from a standing position and drove him to the ground and then continued to punch his face into the cement. She estimated up to 10 blows in total, with the first 3 to the face and the remaining blows to his head and back as he went down to the pavement. She said even after Mr. McBride was on the ground and his face to the cement Mr. Urquhart just kept punching. [ 19 ] She said that Mr. Urquhart was laughing as he struck Mr. McBride and his punches were like hitting a speed bag.

It all happened very quickly. [ 20 ] She ran towards them with arms outstretched as if trying to separate them, screaming at Mr. Urquhart “Don’t, you’re going to kill him, stop, you’re going to kill him”. As she ran towards them, Mr. Urquhart was still in the process of hitting Mr. McBride. She did not see Mr. McBride defend himself at all. After the first few punches, he simply held his hands in front of his face. [ 21 ] When she intervened, Mr. Urquhart turned to her and called her a silly little girl. As he walked away he said to Mr. McBride, “You deserved this, you’re a fucking idiot.” She said Mr.

Urquhart was smiling and laughing while he hit the other man, and seemed pleased with what he had done. She said he was still yelling afterwards. [ 22 ] The amount of blood dripping from Matthew McBride’s nose and face was graphic and extremely upsetting to her. She ran back to her car to get some rags for the blood. Mr. McBride asked her to call 911 which she did. She also noted that some people from the facility were speaking with John Urquhart. [ 23 ] She waited for police to arrive and then left quickly, choosing not to remain any longer because the incident was upsetting to her.

Evidence of John Urquhart [ 24 ] Mr. Urquhart is a retired Richmond Fire Department captain who was the unit leader of the Coast Guard Auxiliary in May 2011. He was age 60 at the time, 5’11” and about 200 pounds. It was his duty to review the business items on the meeting agenda. The agenda that evening was not published and distributed to attendees. He had to finish the business in a timely way to allow time for search and rescue training exercises for the volunteer crew members. He agrees that there was a disagreement with Mr. McBride about revisiting the Tall Ships agenda item. Mr.

McBride swore at him as he left the room, and he admitted to telling him “go have another drink” in an exasperated way. [ 25 ] When Mr. McBride suddenly left the meeting, he admitted to being incredulous and shocked at what happened but denied he was upset. He handed over the meeting to his deputy unit leader, and left the room to go after Mr. McBride. [ 26 ] He denied that the purpose of pursuing Mr. McBride was to confront him. He said it was his intention to try to re-engage him and bring him back into the fold because he had the potential to be a valuable member of the Coast Guard Auxiliary. [ 27 ] Mr.

Urquhart followed Mr. McBride out of the building and called out to him. Mr. McBride turned around and walked towards him but stopped short of reaching him. He said Mr. McBride seemed agitated and was muttering and swearing. He tried to explain his understanding of Mr. McBride’s role in the Tall Ships Festival but Mr. McBride said he was done with the Coast Guard. Mr. Urquhart said he was in disbelief at his reaction. [ 28 ] Mr. McBride then walked away from him, still swearing. Mr. Urquhart continued to follow him. He said this was to hear what he was saying.

He said he did so because he was concerned and still wanted to reengage him. Mr. Urquhart admits that as he followed Mr. McBride, he said to him with a raised voice “Don’t be a fucking loser”, “come back and let’s get it settled”. [ 29 ] He denied being angry during this exchange, but admitted that the words he used were not friendly. [ 30 ] Mr. Urquhart said that as he neared Mr. McBride, Mr. McBride dropped his eyeglasses and other hand-held items to the

pavement. This caused him to look down. He saw Mr. McBride’s fist coming up to connect with the lower part of his left jaw. He pointed to a photograph of a small nick on the underside of his jaw as the contact point for the blow. He said he then bent his arms at the elbows with his palms to his face as if shielding himself, and received a second blow on the meaty part of his right forearm. He pointed to a photograph of his forearm that he said showed some swelling caused by this blow. [ 31 ] Mr. Urquhart said that he responded to these blows by punching Mr. McBride only two times.

He denied grabbing and striking him numerous times or driving him into the ground. He said Mr. McBride stumbled on his feet and fell down to the ground in a crumpled up fetal position. Mr. Urquhart bent down to check his level of consciousness by rolling him over to ask if he was okay. He denies any continued punching of Mr. McBride after the first two blows or while he was down. [ 32 ] He admits that as he was leaning over top of Mr. McBride a young woman, Ms. Willox, approached them and said “Stop, stop, you’re killing him.” He told her “Get away, you silly girl, get away.” [ 33 ] He agrees Mr.

Narowsky and some Coast Guard Auxiliary members later dealt with them, and that he went to get first aid materials to assist Mr. McBride who would have nothing to do with him. He said Mr. McBride told him “I am going to get you”. He never disclosed this particular comment in his statement to police. [ 34 ] He was cooperative with police and attended voluntarily at the police station to give a statement. He asked police to photograph his chin and right forearm for his injuries, and his hands for lack of apparent injury.

Evidence of Matthew McBride [ 35 ] Matthew McBride is age 52 and was a crew trainee with the Coast Guard Auxiliary. He is 6’2” tall and was around 230 pounds. He admits that he perceived John Urquhart’s refusal at the meeting to revisit the Tall Ships agenda item to be dismissive. He agrees he used profanity as he left the meeting, especially after Mr. Urquhart said “Go have another drink” in a manner that he found offensive. Mr. McBride swore saying “Go fuck yourself” and left the meeting. [ 36 ] Mr. McBride said he was in the parking lot walking towards his car when he heard Mr.

Urquhart calling him from behind. Mr. McBride turned around and walked back east towards him but found that Mr. Urquhart was shouting angrily at him, saying something about Mr. McBride’s role in the Tall Ships planning that was not correct. Mr. McBride turned his back on Mr. Urquhart to continue to walk to his car. [ 37 ] John Urquhart followed him, shouting all the while behind him. Mr. McBride said he was being called names – loser, bozo, queer, homo - and he stopped briefly a second time but turned again to go towards his car and to put some distance between them. The insults continued.

He heard the word “loser” and other epithets, and became concerned that Mr. Urquhart was still advancing closer. He said he made repeated requests that Mr. Urquhart back off and get away from him. [ 38 ] Mr. McBride turned around a third time when he was quite close to his vehicle. He saw Mr. Urquhart approaching with a red face and balled up fists as he closed the gap. Mr. McBride said he was fearful of being confined between two vehicles with his back turned, trying to unlock his door with an angry man approaching from behind. He said Mr.

Urquhart was within what he felt was an extremely threatening distance. [ 39 ] Mr. McBride said he took a step towards him, put his open hand on his shoulder and pushed, telling him to back off. John Urquhart swung and hit him forcefully two times in the head, first on the left side on the jaw line, and then on the right side somewhere between the jaw and the cheekbone. After landing these two shots, Mr. Urquhart grabbed a hold of him and pushed him down to the ground. [ 40 ] Mr. McBride denies that he lost his footing and stumbled after the first two hits to his head. He said Mr.

Urquhart grabbed him somewhere around the neck or shoulder area and pushed him forward onto his knees which folded under him. He was pushed all the way to the ground and his head hit the pavement with force. He then felt Mr. Urquhart on top of his back and he was hit a number of times while in this position. [ 41 ] Mr. McBride said the punching was comprehensive and of substantial force, 2 blows one each to the left and the right side of his head when standing, and a further 4 to 6 blows on and around his head and behind his ear when he was on the ground.

He identified photographs of injuries, bruises and marks left by the blows. [ 42 ] He described a painful and swollen cut lip caused by a blow to his face, a cut over his eye, a bloody nose with profuse bleeding when his face was pushed into the ground, and generalized scratches and bruising. [ 43 ] Mr. McBride denied dropping his eyeglasses, notebook and pencil in anticipation of assaulting Mr. Urquhart. He denied swinging and hitting Mr. Urquhart either once or twice before Mr. Urquhart struck him.

His only contact was to push his palm or hand against his shoulder to get him to back away. [ 44 ] Afterwards, while still on the ground, he recalled speaking with a young woman who could not stand the sight of blood and distanced herself. This was Chantal Willox. He later spoke to a man who was an official with the community centre, being Brendan Narowsky. Thereafter police and paramedics attended to deal with the incident. Issues for Determination [ 45 ] The central points raised by Mr. Urquhart in his evidence are as follows: (

a) that he was not angry at Mr. McBride on leaving

the meeting; (

b) that his intention in going after him was to patch things up and preserve his relationship with the Coast Guard Auxiliary;(

c) that Mr. McBride initiated the fight by hitting him twice before he responded in kind with two blows and no more; and (

d) that hesuffered injuries from Mr. McBride’s blows. [46] The central points raised by the Crown are that Mr. McBride was followed out of the meeting by an angry and belligerent Mr.Urquhart, who continued to pursue him well into the lot, advanced upon him causing Mr. McBride to push him away in self-protectionwhereupon Mr.

Urquhart launched into a series of blows against him using substantial force which caused him injury, pain and suffering. [47] The factual issues to be determined are what occurred in the parking lot and legal issue is whether on the facts and law theCrown has proven beyond a reasonable doubt that Mr. Urquhart is guilty of assaulting and causing bodily harm to Mr. McBride. Legal Principles [48] In this case the credibility and reliability of the testimony of the witnesses is a central consideration. Credibility is concernedwith the veracity or truthfulness of a witness.

Reliability has to do with the ability of a witness to accurately observe, comprehensivelyrecall and reliably testify about the event in question. An untruthful witness can not give reliable evidence. However, a seeminglytruthful witness may give unreliable evidence if his or her ability to observe, remember and recount the event is affected or impacted insome way: R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.); [1995] OJ No. 639. [49] In our adversarial system of criminal justice, the truth seeking function in a trial requires trial judges to deal with anyinconsistencies, contradictions and implausibility in the testimony of a witness and to consider whether these affect the credibility orreliability of that witness. [50] An accused enters the courtroom presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt.

Wherethere is defence evidence, including testimony from the accused, the court must not assume that its verdict must be based on a choicebetween the Crown’s evidence and the accused’s evidence. The task is not a binary choice or an either/or proposition. The verdict of thecourt must be based on an assessment of the evidence as a whole, and whether, on such an assessment, a judge or jury is left with areasonable doubt as to the accused’s guilt. The required approach in assessing the evidence under R. v. W.(D.), (SCC),[1991] 1 S.C.R. 742 is as follows: 1. If I believe the evidence of the accused, I must acquit. 2.

If I do not believe the testimony of the accused but it leaves me in reasonable doubt as to the guilt of the accused, I must acquit. 3. Even though I am not left in doubt by the evidence of the accused, on the basis of the evidence I do accept, I must be convincedbeyond a reasonable doubt by that evidence of the guilt of the accused. [51] If, after careful consideration of all the evidence, I am unable to decide whom to believe, it follows that the Crown has failed todischarge its legal burden of proof beyond a reasonable doubt, and I must acquit: see R. v.

C.W.H. (1991), (BC CA),68 C.C.C. (3d) 146, 3 B.C.A.C. 205 Wood JA (as he then was). [52] To obtain a conviction for the offence of assault causing bodily harm under s. 267(

b) of the Criminal Code, the Crown mustprove beyond a reasonable doubt: (1) that Mr. Urquhart committed an unlawful assault; (2) that the assault resulted in bodily harm to the complainant; and (3) that bodily harm was an objectively foreseeable consequence of the assault. This foreseeability relates to the risk of bodily harm ingeneral, not to the specific bodily harm caused. [53] There is no doubt that Mr.

McBride suffered bodily harm in that the hurt or injury to him was more than merely transient ortrifling and interfered in a significant way with his health and comfort: R. v Dixon [1988] BCJ No. 774 and R. v. T.G. [1999] B.C.J. No.2052. [54] The issue is whether the evidence shows beyond a reasonable doubt that it was the result of an unlawful assault on him by Mr.Urquhart. An assault by an accused will not be unlawful if he acted in self defence or there is a reasonable doubt that he did.

The onus ison the Crown to show beyond a reasonable doubt that self defence does not apply. [55] Following the directions in R. v. Brar 2009 BCCA 585, and R. v. Fontaine, 2004 SCC 27 , [2004] 1 S.C.R. 702, paras.71-74, the question to be asked is: did the accused reasonably believe, in the circumstances, that he was being unlawfully assaulted, andif so, whether the evidence of self-defence is reasonably capable of supporting the inference required for an acquittal. If the court is leftin reasonable doubt about whether the defence applies, the accused is entitled to an acquittal: see also R. v.

B.S.A., 2012 BCSC 479 Self Defence Air of Reality

[ 56 ] I am satisfied that an air of reality exists to put self-defence into play. Mr. McBride admits that he pushed Mr. Urquhart away just before Mr. Urquhart struck him and Mr. Urquhart says he was assaulted first by Mr. McBride: see R. v. Cinous , 2002 SCC 29 at para. 82 , [2002] 2 S.C.R. 3. Self-Defence Under the Criminal Code [ 57 ] Mr. Urquhart relies on s. 34(1) and s. 37 of the Criminal Code in force at the time of the offence.

On March 11, 2013, the Citizen's Arrest and Self-defence Act , S.C. 2012, c. 9, repealed ss. 34 to 42 of the Criminal Code , and replaced them with a new s. 34 , which deals with a codified self-defence. [ 58 ] The Supreme Court of British Columbia in R. v. Evans, 2013 BCSC 462 , held that the self-defence amendments do not apply retrospectively, stating: 17 The main issue, in my view, is whether the amendments affect substantive rights.

I have concluded that the new self-defence provision in s. 34 has effected a substantive change to the content of the defence, and as such must be applied prospectively only. [ 59 ] The Crown contends that while the former Criminal Code self-defence provisions presumptively apply in this prosecution, the court must also consider the new self-defence provisions to determine if they afford the accused a greater benefit under the law not available under the old provisions. This approach is supported by the recent case of R. v. Pandurevic [2013] O.J.

No. 2380 which held that the presumption against retrospectively of legislation affecting a substantive right is rebuttable, and that the new legislation is beneficial to an accused claiming to have acted in self-defence . Former Self- Defence Provisions [ 60 ] Section 34(1) and s. 37 of the Criminal Code in force at the time of the May 2011 allegations read as follows: 34.

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. .... 37.

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [ 61 ] Both sections contain a requirement that the force used not be disproportionate to the force needed to repel an unlawful assault ( s. 34(1) ) or to prevent an assault or its repetition ( s. 37 ). New Self-Defence Provisions [ 62 ] The new s. 34 under the Criminal Code (“New s. 34”) provides 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 useof 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 forceand 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 theyare required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act thatconstitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [63] The new self- defence provisions preserve the test for proportionality of the force used in self-defence.

The proportionality ofthe force is one of a non-exhaustive list of factors to be assessed in the context of all the surrounding circumstances to determine if theforce used was for a defensive or protective purpose and was reasonable in the circumstances. Analysis under the Former Self Defence Provisions [64] The elements of the defence under the former s. 34(1) are satisfied if the court accepts or has a reasonable doubt as to theexistence of all of the following four elements:

a) Mr. Urquhart was unlawfully assaulted by Mr. McBride;

b) Mr. Urquhart did not provoke the assault;

c) The force used by Mr. Urquhart was not intended to cause Mr. McBride death or grievous bodily harm; and

d) The force used by Mr. Urquhart was no more than necessary to enable him to defend himself. [65] Under s. 37 the elements are:

a) Mr. Urquhart used force to defend himself from an assault; and

b) The force used by Mr. Urquhart was no more than necessary to prevent the assault or its repetition. [66]

Section 37 has a wider scope than s. 34(1) and is available to an accused who provokes an assault provided excessive force isnot used by him in responding or preventing the assault: R. v. Grandin 2001 BCCA 340. [67] If the Crown proves beyond a reasonable doubt the absence of any one of the above elements, self defence does not apply: R. v.Richter 2012 BCJ No. 2801 at para. 63 citing R. v. Hebert (SCC), [1996] 2 SCR 272 at paras. 23-25. On the otherhand, if there is a reasonable doubt about the existence of all four elements, Mr.

Urquhart is entitled to an acquittal. [68] The application of both s. 34(1) and s. 37 focuses on the amount of force used by the accused rather than on the consequencesof his use of force: Grandin at para. 44. [69] Recklessness as to the consequences of the application of force or risk of consequences does not deprive an accused of thebenefit of either provision. It is only recklessness as to the measure of force necessary in the circumstances that could deprive an accusedof the defence because it can lead to a finding of excessive force: R. v. Kandola, (1993) (BC CA), 27 B.C.A.C. 226(C.A.) at para. 25 and R. v.

Grandin, 2001 BCCA 340 at para. 44 Findings of Fact [70] The evidence is that the Coast Guard Auxiliary is modelled on an authoritarian structure and, as with any paramilitaryorganization, respect is to be shown to the head of the chain of command. Mr. Urquhart was in charge of the meeting and his running of

it was interrupted by Mr. McBride’s interjection. On being shut down Mr. McBride reacted negatively and with vulgarity towards Mr. Urquhart as he left the meeting. [ 71 ] What is relevant is what each took away from this interaction. I am satisfied that Mr. McBride was upset and wanted to remove himself. The factual issue to be determined is the intent of Mr. Urquhart in leaving the meeting to go after Mr. McBride. [ 72 ] Mr. Urquhart testified that his intent in pursuing Mr. McBride was to patch things up and smooth things over. For that reason, he followed Mr.

McBride out of the building and into the parking lot. [ 73 ] I have the benefit of the evidence of two independent witnesses, Brendan Narowsky and Chantal Willox who heard Mr. Urquhart as he followed Mr. McBride. They described Mr. Urquhart yelling at Mr. McBride and using loud and angry words. The tone, volume and content of his language were completely inconsistent with any attempt at reconciliation or re-engagement as asserted by Mr. Urquhart. Mr. Narowsky said Mr. Urquhart was yelling “why are you walking away… you are gutless… be a man... if you got something to say come up and say it”.

The yelling was interspersed with some “f-bombs.” The yelling and foul language caused Mr. Narowsky concern because of children playing nearby. Ms. Willox similarly testified she heard Mr. Urquhart yelling and it was his voice that first drew her attention. She said his tone was threatening as he followed after Mr. McBride. [ 74 ] Mr. McBride testified he heard vulgarity and epithets such as loser, bozo, homo and more levelled against him by Mr. Urquhart who admits he used the word “loser” at the very least. Mr.

Urquhart said he was saying “don’t be a loser”, suggesting a beseeching tone when that was not the tenor the independent witnesses ascribed to it. [ 75 ] While it is correct that the two independent witnesses heard only the louder parts of his commentary, both Mr. Narowsky and Ms. Willox were not focused on the exchange until it could not be ignored. Their evidence was consistent with each other and with that of Mr. McBride that Mr. Urquhart was angry and belligerent towards him. Yet in cross-examination Mr. Urquhart maintained that he was not angry when approaching Mr. McBride.

He also maintained that being told to “back off” or “fuck off” by Mr. McBride was not a signal to leave him alone. He did not think that a person walking away wanted to be left alone. This evidence is inconsistent with logic and common sense. [ 76 ] Mr. Urquhart testified that he was walking virtually side by side with Mr. McBride for the most part across the parking lot. Mr. McBride stated that he was followed from behind and he kept a distance between the two just short of when he reached his parked vehicle when he became fearful of being trapped. Mr. McBride’s evidence is consistent with that of Ms.

Willox who saw one man following the other, the man ahead stop and turn around to face the other and then being struck down. Mr. McBride’s evidence of trying to maintain his distance is consistent with the words Mr. Narowski heard including “why are you walking away”. I reject Mr. Urquhart’s evidence on this point. [ 77 ] Mr. Urquhart described how Mr. McBride threw his hand-held eyeglasses to the ground just before striking him. It is highly improbable that someone would throw away breakable lenses instead of placing them in a pocket or somewhere safe. In my view, this part of Mr.

Urquhart’s evidence was intended to set the stage for how he says he sustained the injury to the underside of this chin. [ 78 ] On this point, Mr. Urquhart’s evidence was internally inconsistent and shifted when it became apparent that his chin injury could not have occurred as he verbally and physically described while in the witness stand. During his testimony, he moved his head down his chest to show he was looking down to the ground at the thrown eyeglasses when Mr. McBride struck him under the chin.

The underside of his chin was simply not exposed in the position he demonstrated with his chin resting against his collarbone. When this impossibility was raised in cross examination, Mr. Urquhart changed his stance and the angle of head to justify his evidence. In addition to this internal inconsistency, the small nick to the under side of his jaw appears so minimal that it is inconsistent with the force of the blow he described. Moreover, his complaint of right forearm swelling is imperceptible in the photographs. It is surprisingly free of redness and contusions given the force he described. [ 79 ] Mr.

Urquhart places reliance on the fact that his hands showed no signs of injury. He has admitted to striking Mr. McBride two times so the absence of injury is not equivalent to an absence of blows. It is one factor to be considered in the context of the evidence as a whole. [ 80 ] Mr. Urquhart contends that Ms. Willox is an unreliable witness and I should reject her evidence. She was wrong to say the men were walking east, but at one stage Mr. McBride did turn to face east towards Mr. Urquhart. I also accept that Ms. Willox was traumatized by the sight of blood on Mr.

McBride after he was on the ground and bleeding profusely. However, she did not see the blood until after she witnessed the assault. I found Ms. Willox’s evidence of how the assault started, and how she reacted in running towards the men in an effort to stop the violence to be compelling and believable. She was so insistent in her intervention that Mr. Urquhart called her a “silly girl” and told her to “go away”. I accept that the level and extent of the violence she saw was the underlying basis of her vocalized fear that Mr. Urquhart was going to kill Mr.

McBride and that was why she reacted as she did. [ 81 ] I do accept that Ms. Willox formed a poor opinion of Mr. Urquhart after seeing what transpired in the parking lot. She described him as laughing maniacally and felt he was evil. I have considered that fact in assessing her evidence. She was the only independent witness to see the assault itself, Mr. Narowsky having turned around too late to see it in progress. I found her to be a sincere, reliable and honest witness whose evidence is significantly in harmony with the evidence of Mr. McBride.

There is also congruence in her description of the tone of voice Mr. Urquhart used with that heard by Mr. Narowsky, and congruence in the number of blows she observed and the mechanism of how Mr. McBride ended up on the ground that fits with what Mr. McBride described. I accept her evidence as reliable evidence of the events leading up to when she ran towards both men. [ 82 ] I accept that Mr. McBride first stopped momentarily to see what Mr. Urquhart wanted but the disparaging words and hostility levelled at him by Mr. Urquhart dissuaded him from engaging further with him.

He turned away and continued to go in the direction of his parked vehicle. This turning away did not deter Mr. Urquhart who continued following behind Mr. McBride who turned around only briefly before proceeding on his way. Mr. Urquhart was undeterred and narrowed the distance between them. Mr. Narowsky supports the evidence of Mr. McBride that the conversation was predominantly one sided, with Mr. Urquhart using loud, profane and insulting language towards Mr. McBride such that he considering turning to admonish the speaker whom he identified as Mr. Urquhart.

[ 83 ] Ms. Willox confirms that Mr. Urquhart continued with his angry yelling as he followed Mr. McBride a distance of 50-80 feet across the parking lot. Mr. Urquhart admits he did continue to follow Mr. McBride. [ 84 ] I reject Mr. Urquhart’s evidence that he was in pursuit of Mr. McBride for a conciliatory purpose. His explanations of his intent are inconsistent with his outward manifestation. His conduct, language and tone were at complete odds with his stated intention to placate and far distant from any conciliatory approach. [ 85 ] I also reject his evidence that it was Mr.

McBride who was completely out of control when he first approached him in the parking lot. If so, it would have been clear to Mr. Urquhart that this was a poor candidate to salvage for the Coast Guard Auxiliary. That is not to say the Mr. McBride stood mute as he did not. However, according to both independent witnesses it was Mr. Urquhart who was the aggressor, who sounded angry and out of control to Mr. Narowsky and was seen to be so by Ms. Willox. [ 86 ] Mr. Urquhart contends that Mr.

McBride turned on him, threw down his glasses and notebook, and launched into a full blown assault of him at this point striking several blows. Mr. McBride gives a different version of what transpired. [ 87 ] Mr. Urquhart’s evidence that Mr. McBride threw a series of punches at him, and not one pushing motion, is inconsistent with Mr. McBride’s behaviour in the parking lot up to that point. He turned away to go to his vehicle, evincing a desire not to engage, and not to escalate the confrontation with Mr. Urquhart. His launching into a flurry of punches against Mr.

Urquhart is inconsistent with him continuing to distance himself from the approaching Mr. Urquhart. I accept Mr. McBride’s evidence that he wished to remove himself from Mr. Urquhart, but as he neared his parked vehicle he became fearful of being trapped because Mr. Urquhart was now very close to him and he pushed him. [ 88 ] I am satisfied that in the circumstances it was reasonable for Mr. McBride to feel quite apprehensive about his safety since he had been followed some significant distance across a parking lot by Mr. Urquhart in an loud, angry and belligerent mood.

I accept that he used one arm and pushed Mr. Urquhart on the shoulder to tell him to stay back. [ 89 ] I further accept Mr. McBride’s evidence that he was standing upright, facing Mr. Urquhart, when he received two substantial hits to his head which caused his knees to become wobbly and he was then grabbed and forced face first into the parking lot. I accept and find that once on the ground Mr. McBride was beaten several times more, receiving a further 4 to 6 punches including several punches to his head while he was held or pinned down to the ground by Mr. Urquhart.

I accept that after the first two blows received while on his feet, he was seriously hurt, disoriented, and not in position to take any defensive action. [ 90 ] Ms. Willox’s evidence is largely consistent with that of Mr. McBride, including that Mr. Urquhart hit him in the head, took him down to the ground, and hit him some more for a total of up to 8 or 10 blows. Mr. McBride said he did not strike back because he was dazed by the initial blows to his head. Ms. Willox said that Mr. McBride did not defend himself. I accept their evidence on the nature and number of blows to Mr. McBride and that Mr.

McBride did not hit Mr. Urquhart on his chin or arm. [ 91 ] Having considered the evidence as a whole, I reject the accused’s evidence where it conflicts with that of Mr. McBride, Ms. Willox and Mr. Narowsky. Applying the Facts to the Law of Self-Defence [ 92 ] In considering the elements under the former s. 34(1) of the Criminal Code , the accused does not have to prove he acted in self defence. The onus is on the Crown to show beyond a reasonable doubt that the defence does not apply. In R. v.

John 2011 BCSC 479 the court said that in order for the Crown to defeat self defence under s. 34(1) , it must prove at least one of the following four facts beyond a reasonable doubt:

a) One, that the victim did not assault the accused; or

b) Two, that the accused did provoke the assault; or

c) Three, that the accused did intend to kill the victim or cause him grievous bodily harm; or

d) Four, that the force used by the accused was more than necessary to enable the accused to defend himself. [ 93 ] I have rejected Mr. Urquhart’s evidence that he was struck two times by Mr. McBride. On the facts as I have found them, Mr. McBride’s initial one armed push against Mr. Urquhart shoulder’s to stop him from advancing further was not an unlawful assault but a reasonable use of force from a man apprehending an assault to keep the other at a distance. [ 94 ] Because the standard for proving the non-existence of an element of self-defence is beyond a reasonable doubt, even though I have rejected the Mr.

Urquhart’s evidence, on the facts as I have found them Mr. Urquhart may have reasonably believed he was being assaulted once Mr. McBride pushed him. Accordingly, Mr. Urquhart is entitled to the benefit of the doubt under the first prong of the self-defence analysis under the former s. 34(1) . [ 95 ] Section 34(1) applies only where the accused is “an innocent victim who has been assaulted without having provoked the assault” and under s. 36 of the Criminal Code provocation includes “provocation by blows, words or gestures”: R. v. Barrett 2012 BCCA 241 at para. 26 .

On the second element of self-defence under s. 34(1) , I am satisfied that Mr. Urquhart’s conduct in continuing to pursue Mr. McBride in an angry and abusive manner across the parking lot towards his vehicle can support a finding that he provoked the assault by his words and conduct. [ 96 ] With respect to the third element, there is no evidence that Mr. Urquhart intended by his use of force to cause death or grievous bodily harm. [ 97 ] With respect to the proportionate force requirement under fourth element, I find that the one arm pushing movement by Mr.

McBride against Mr. Urquhart’s shoulder unleashed Mr. Urquhart’s fury, and he immediately punched Mr. McBride in the head andface, causing Mr. McBride’s knees to buckle. Mr. Urquhart then pushed him down, leaned over an incapacitated Mr. McBride andcontinued to strike him around his head and upper body. It is this latter series of four to six blows when Mr. McBride was incapacitatedthat establish beyond a reasonable doubt that the force used by Mr. Urquhart was excessive in all the circumstances under the former s.34. [98] As noted in R. v. Parker 2013 ONCJ 195 , [2013] O.J.

No. 1755, if the use of force is intended not to repel force, butto express anger against a person in no position to respond, then one can not have the subjective belief that the force is necessary for self-defence. An analysis under s. 37 of the Criminal Code also results in a finding of excessive force because the force used by Mr.Urquhart in responding to Mr. McBride was more than was necessary to prevent the assault or its repetition. The blows to Mr.

McBridewhen he was on the ground were not necessary to repel any perceived threat of an assault or continuing assault. [99] I am satisfied that the Crown has shown beyond a reasonable doubt that self defence under the former s. 34(1) and s. 37 of theCriminal Code is not available to Mr. Urquhart. New Self Defence Provisions as of March 11, 2013 [100] Under the new s. 34 self-defence provisions, I must determine whether the act committed by Mr. Urquhart was reasonable in thecircumstances. As noted in R. v. Pandurevic, supra, the amended self-defence provisions contain three essential elements: (

a) a reasonable perception of force or a threat of force against the accused or another person: s. 34(1)(a); (

b) a defensive purpose for the accused’s act: s. 34(1)(b); and (

c) an objective determination of the reasonableness of the accused’s act: s. 34(1)(

c) applying the factors under s. 34(2). [101] I accept that Mr. Urquhart may have believed on reasonable grounds that when Mr. McBride pushed him on the shoulder hewas being assaulted. That push and Mr. Urquhart’s purpose in responding as he did must be considered and evaluated applying thefactors set out under s. 34(2). [102] I have considered the context of their earlier interactions whereby Mr. McBride indicated by turning his back on Mr. Urquhartthat he did not want to engage with him. I have found that Mr. Urquhart pursued Mr. McBride in a volatile and angry manner.

Moreover, there were no significant dissimilarities in the physical capabilities of the two, with Mr. Urquhart an older but more physicallyfit individual. [103] I find that the nature and proportionality of Mr. Urquhart’s response to Mr. McBride’s shoulder push, specifically landing anumber of significant blows to an incapacitated man on the ground, were excessive and not objectively reasonable in the totality of thecircumstances. [104] I find beyond a reasonable doubt that those blows by Mr. Urquhart were not for a defensive or protective purpose and were notobjectively reasonable.

The Crown has shown beyond a reasonable doubt that self-defence under the new s. 34 of the Criminal Code isnot available to Mr. Urquhart.

Summary [105] For the reasons aforesaid, I have rejected Mr. Urquhart’s evidence that he was acting in self-defence and his evidence, thoughrejected, does not raise a reasonable doubt in my mind that he committed an unlawful assault upon Mr. McBride. I have considered thewhole of the evidence and I am satisfied by the evidence that I accept that the Crown has proven the material elements of the offence ofassault causing bodily harm and disproved the defence of self-defence beyond a reasonable doubt. [106] Accordingly, I find John Urquhart is guilty of the offence of assault causing bodily harm. ________________________ The Hon. Judge H.K. Dhillon