R. v. J.B. Date:, 2012 BCPC 319

Citation: R. v. J.B. Date: 20120515 2012 BCPC 0319 File No: 59138 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.B. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: K. Westall Counsel for the Accused: G.J. Harris, Q.C. Place of Hearing: Chilliwack , B.C. Date of Hearing: March 26, May 15, 2012 Date of Judgment: May 15, 2012

[ 1 ] THE COURT: J.B. is charged that, on or about the 16th day of June, 2011, at or near Chilliwack, in the Province of British Columbia, he did assault of another person, S.V., contrary to s. 266 of the Criminal Code . [ 2 ] This charge has a number of elements to the offence, and some of those are not in dispute. For example, there is no issue that if an assault occurred on June 16th on S.B., that J.B. was the person who committed that assault. There is no issue about his identity.

There is no issue about the jurisdiction of this court that this is an offence that happened in Chilliwack, British Columbia, if the Crown establishes that an offence indeed did occur. There is no issue with respect to the date of the alleged offence. [ 3 ] The issues that are in dispute are whether or not, in fact, an assault occurred by J.B. upon the person of S.B. S.B. certainly gives evidence suggesting that such an assault occurred. J.B. denies the assault.

He acknowledges that there was physical contact, but he indicates that any physical contact occurred in the course of self-defence to prevent an assault from taking place on him. [ 4 ] Now, assault is defined under the Criminal Code as the intentional application of force against another person without consent and in circumstances other that self-defence, to a degree that is not trivial. [ 5 ] The burden of proof, as Mr. Harris points out, rests with the Crown to prove all elements of the offence beyond a reasonable doubt.

I keep in mind that the test in a criminal trial is not which side I believe, but whether the Crown has proven the offence beyond a reasonable doubt. I must consider whether, on the total body of the evidence viewed as a whole, the Crown has proven each essential element of the offence beyond a reasonable doubt. The accused is not required to establish his innocence; he is not required to show a motive for fabrication.

The burden rests with the Crown and never shifts. [ 6 ] Now, defining a reasonable doubt, I take into account that a reasonable doubt is not a doubt based on sympathy or prejudice but, rather, it is based on reason and common sense. It must be one logically connected to the evidence or the absence of evidence. [ 7 ] The Crown is not required to prove the offence to an absolute certainty. It is not proof beyond any doubt, nor is it any imaginary or frivolous doubt, but more is required for the Crown to show than merely that the accused is probably guilty. [ 8 ] Mr.

Harris has also pointed out, and again I agree, that in cases where there is a difference in credibility, as in this case, the burden of proof rests with the Crown to prove all elements of the offence. In the Supreme Court of Canada, in a case called R.v.

W.D. instructed trial judges in cases of this nature that, first of all, if the accused testifies and if his testimony establishes a defence to the charge, and if the accused is believed, then he is entitled to an acquittal. [ 9 ] If the accused is not believed, but his evidence leaves a reasonable doubt - in other words, it may be true - then again the accused is entitled to the benefit of that doubt and he is entitled to an acquittal. [ 10 ] Finally, even if the accused’s evidence is not believed and raises no doubt, then I still have to determine whether or not on the evidence, that I do accept the Crown has proven each of the elements beyond a reasonable doubt. [ 11 ] Now, it is against this background of the law that I now apply to the facts that were presented in evidence before this court. [ 12 ] This case concerns an allegation of domestic violence, and these are of course always emotionally charged situations where adults sometimes fail to use their best judgment.

It is a situation where there was admitted alcohol consumption, and that is, of course, another factor which often causes people to jettison their best judgment and their reason in circumstances. [ 13 ] In this case, three witnesses presented evidence before the court: the complainant, the accused and the investigating officer, Constable Abramson (phonetic). Portions of the evidence of the accused and the complainant mirror one another; there is no argument about certain facts.

But, of course, on the crucial facts with respect to whether or not an assault occurred, there is a marked difference between the evidence of the complainant and the evidence of the accused. [ 14 ] Now, on the alleged offence date, the complainant testified that she returned home from work to the home where she was living with the accused and their two small daughters.

It was the night of Game 7 of the 2011 Stanley Cup Final between the Vancouver Canucks and the Boston Bruins and, not surprisingly, some alcohol was being consumed at the home. [ 15 ] It is reasonable to conclude on the testimony of all of the witnesses that more alcohol was consumed on the part of the accused than on the part of the complainant. He admits as much, although he addressed that in cross-examination.

He told the Crown he probably consumed between six and eight beer. [ 16 ] Conversely, the complainant, it is a reasonable conclusion on the evidence before the court that the complainant had much less to drink. She admits as much in her evidence. I also note that when she was ultimately seen by the investigating officer, there is no suggestion the officer noted of her being intoxicated or under the influence of alcohol. [ 17 ] Now, this was a tense atmosphere because of a number of issues. There was a loss of trust in the relationship over some financial matters.

There was the accused's suspicion of infidelity, and again, it is not this court's position to apportion blame on those issues. I simply observe that in the home at the time that, on the night of June15, 2011, there was a considerably tense atmosphere in the home because of these issues. [ 18 ] The accused testified, as I say, that he drank about between six to eight beers.

It is the complainant's evidence that he was intoxicated when these events occurred, and there is also the issue that the accused, in addition to the alcohol, he shared some marihuana with some of the other individuals who were at his home that evening. [ 19 ] The complainant testified that the children were put to bed. These are two young girls. I think at the time there were about two- and-a-half and four if I am not mistaken. They were very young. After the children were put to bed, she felt uneasy in that atmosphere in

the home and left to visit some friends to watch the game. [ 20 ] Ultimately, she returned home and again, it was her evidence that at this point in time, everyone is pretty drunk, while she is sober. It was the accused's evidence that although he had consumed between six to eight beers that evening, he felt that he was fine and does not believe that he was intoxicated. [ 21 ] After everyone leaves the home, that is, those visiting to watch the Stanley Cup game and so forth, the parties have an argument and, again, we have canvassed the subjects of the argument but there is an argument.

At this point, of course, where that argument leads, there is considerable divergence in the evidence. [ 22 ] The complainant testifies that she attempts to remove herself from the argument, and that there are about three occasions where there are confrontations with the accused. She says initially she is in the bedroom with the child, one of the children. He takes the child upstairs, comes back down, pushes her on the bed and holds her by the shoulders. She tries to get away. She says, "He's on the bed trying to make me listen." He puts his arms around her neck and chokes her.

She says that her head is in his elbow area and some choking occurs. They have further argument. [ 23 ] Later on in the evening, they argue some more, and it is her evidence that the accused drags her into the garage forcibly and tells her to get out. At that time, she is not fully clothed, and they argue in the garage. The nanny returns home and so they go back into the house not wanting to have this argument in front of the nanny. [ 24 ] In the course of being inside, they continue to argue, and again, it is the complainant's evidence that she is choked inside the residence to the point of passing out.

She wakes up on the bathroom floor and ultimately she is able to leave the residence when the accused passes out. [ 25 ] Now, I will just pause here to say that on the version of events put forth by the complainant, there is certainly no doubt that the actions that she describes constitutes an assault. [ 26 ] The accused testified and his evidence is markedly different. He denies, first of all, that the physical contact occurred in the bedroom on the first occasion when the child was taken back up to her room.

He simply says that there was an argument and there was no physical contact. [ 27 ] The incident about her being dragged into the garage, again, he says that she is confusing that perhaps with another argument that they may have had. In fact, he says this is another incident, not this one. [ 28 ] The last incident, the most significant one, it is significant that the accused admits that the complainant passed out, but he denies that this occurred in the context of what would constitute a criminal assault. He says they argued. He said, in his words, "Or I made comments that went way too far.

She slapped me across the face several times." He says, "I let her hit me, then I threw her into a bear hug. I thought it would be a good idea if she had a nice cool shower." He says that in the course of holding her in this bear hug, she is struggling, she is trying to bite him, and he says that at that point, she blacked out from twisting and turning.

He says, "I didn't mean to cause her to pass out." Then he says he carried her to the foot of the bed, made sure she was breathing, and again, his evidence is that she slapped him in the face again. [ 29 ] Now, there is a considerable marked departure, obviously, in the two versions. Again, as Mr. Harris points out, it is not a question of pitting one version against the other, but it is determining, on the formula set out by the Supreme Court of Canada in R. v.

W. (D.) , first whether I accept the accused's evidence or I am left in doubt by it, and if neither of those apply, then whether or not the Crown has proven the elements of the offence beyond a reasonable doubt. [ 30 ] I should also just briefly summarize that, according to the complainant's evidence, after the accused passes out she is able to leave the house, return to her friends' home where she had been earlier in the evening, and the police are called. [ 31 ] Constable Abramson gives some evidence. It is Constable Abramson who responds to the complaint.

She testifies that the complainant's demeanour at 2:00 in the morning when she arrives can be described as being very upset and crying. Although she does not discover injuries on the neck, she does notice popped blood vessels under the eye. It is not quite clear what I am to make from that, but I do take into account that clearly Constable Abramson describes the complainant as being very upset and crying, very emotionally distraught. [ 32 ] Now, as I say, this is the background that I have to apply the tests from the Supreme Court of Canada.

I first of all have to ask whether or not I accept the evidence of the accused or whether I believe it. [ 33 ] Crown invites me to disbelieve the evidence of the accused. Mr. Harris conversely suggests that the evidence is not only worthy of belief but should be believed because the accused admitted to several things including some against his interest. [ 34 ] What I am troubled by in the evidence of the accused, first of all, is that he is not a sober observer. He is recounting these events having consumed between six and eight beer.

Of course, this court often hears situations of individuals who consume a lot of alcohol and, in my view, six to eight beer is not an insignificant amount, but of course who then feel that they are either fine to drive or that they are sober or that they are able to recount things as they occurred. In this case, though, when I compare it with the remainder of the evidence, I certainly have some concerns about the accused's ability to accurately recount what occurred on that occasion. [ 35 ] First of all, as I say, he was not a sober observer.

The complainant, who was a sober observer, testified that she recalls him as being very drunk. I think there are a number of aspects of his demeanour and his judgment that I think fully support the conclusion that the accused's recollection of this evening is not accurate, and that the judgment he was using was certainly not the best. I think it is reasonable to conclude that his judgment was adversely affected by the alcohol that he had consumed on that evening. [ 36 ] There are a couple of issues, for example, the indication of his using very bad judgment in terms of continuing this argument

while two small children are present. It just shows bad judgment that parents would use that kind of judgment in the presence of two small children. [ 37 ] J.B. said to his counsel in response to a question, "We needed to talk, she didn't want to listen," indicating of course that he was the one who chose to force the issue because it was his judgment at that time that this was something that had to get argued out, even though he acknowledges that the complainant wanted to extricate herself from the situation.

It seems to me that the better judgment in that case with two small children, with alcohol having been consumed, that the better judgment obviously was that suggested by the complainant, that this was not the time to argue. [ 38 ] The other factor that the Crown points out concerns me as well, and that was the explanation as to why the complainant passes out given by the accused and whether or not it contains what is often called in law and "air of reality". [ 39 ] First of all, the parties both agree that the complainant passes out, so it is not a question that this is something that is being made up.

The complainant clearly passes out, the accused admits as much. [ 40 ] The accused says that this occurs because he is holding her arms in a form of a bear hug to present her from continuing to strike him, and it is that that causes her to pass out. He says she blacked out from twisting and turning. [ 41 ] Again, what we have to bring to court is our common sense, and a reasonable doubt has to be something rooted in common sense. It just lacks reality to suggest that that is what caused the complainant to pass out.

It leads me to one of two conclusions: either the accused is not being truthful in terms of what it was that caused the accused to pass out, or alternatively, his consumption of alcohol and marihuana made his recollection unreliable and he is now trying to recall events through that filter which, of course, is an unreliable recollection of what occurred. [ 42 ] I am also troubled by the fact that the accused flees the scene.

He has injuries, apparently, that perhaps could be shown to the police, and of course it is not up to him to prove his innocence and I do not meant to suggest that an inference should be drawn from that, but I am troubled by the fact that he presents himself as the one who has actually been victimized here, and yet on being made aware that the police are looking for him, he waits until a later date. [ 43 ] Again, I want to be careful here as to what inferences I can draw from that, whether or not, had the police interviewed the accused that night, they would have found his sobriety to be other than as he testifies. [ 44 ] But the fact is I am generally concerned with the ability of the accused to recollect events, whether his recollection is reliable or unreliable, and I think the best example of that is the one that Crown pointed out, his explanation for what it was that caused the complainant to pass out.

It simply lacks an air of reality. Because of that and because of his consumption of alcohol and because of the other factors that I have mentioned, I do not feel that I can rely on the evidence of the accused as an accurate recollection of what happened that evening. [ 45 ] So I find myself in the position where I do not accept the accused's evidence. I do not believe it to be accurate. In determining whether or not I am left in a reasonable doubt, again, as I say, a reasonable doubt has to be something based on common sense and rationality.

Again, his explanation for how it was that the complainant came to pass out, in my view, is not a reasonable one and it is not one where I even find myself in the position where I say, well, that might have happened, that could be true, because of course I think, as the Crown points out, it is just not a reasonable explanation. [ 46 ] So I am left then in the position of having rejected the accused's evidence of determining whether or not I accept the evidence of the complainant. I do accept her evidence for a number of reasons. She was a sober witness throughout this.

Her evidence is certainly consistent with the observations of the police officer in her demeanour when Constable Abramson interviews the accused shortly after this event. [ 47 ] Generally, although demeanour is often one of the least reliable indicators, I have to say that I also do agree with the Crown that I found the complainant to be a credible witness and to have undergone on cross-examination, a fairly significant cross-examination, and that, in my view, her evidence was not shaken on cross-examination. [ 48 ] As I say, I am generally satisfied primarily by the fact that she was a sober witness, by the fact that her evidence lacks any significant inconsistency, and the fact that it is certainly consistent with the observations of the police officer interviewing and seeing her in a condition as being someone who had been victimized. [ 49 ] Having accepted the complainant's evidence, her evidence and the events that she describes, clearly meet the definition of an assault.

Force was applied to her, it was applied without her consent, and it was applied to a degree that was more than trifling or transitory. [ 50 ] It is an unfortunate situation that alcohol and emotionally charged situations have caused individuals to fail to use their best judgment, particularly with small children in the house. But having said that, it is what it is and I am satisfied that the Crown has proven each of the elements of the offence beyond a reasonable doubt, and I find J.B. of the offence of assault as set out in Information 59138- K1, count 1. ________________________ K.D.

Skilnick Provincial Court Judge