R. v. Thorpe Date:, 2013 BCPC 32

Citation: R. v. Thorpe Date: 20130301 2013 BCPC 0032 File No: 60255 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAUN MICHAEL THORPE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: H. B. Waldock Counsel for the Defendant: E. dos Santos Place of Hearing: Chilliwack , B.C. Dates of Hearing: November 20, 21, December 13, 2012, February 8, 2013 Date of Judgment: March 1, 2013

Introduction [ 1 ] Shawn Michael Thorpe is charged with one count of aggravated assault, one count of unlawful confinement and one count of uttering a threat to cause death or bodily harm. He has entered pleas of not guilty to each of these offences. A trial was held at which six police officers and three civilian witnesses testified.

The Accused did not testify, but by consent three statements which he gave to police was entered into evidence and Counsel for the Accused argues that these statements of the Accused should form the basis of a reasonable doubt about the Accused’s guilt. [ 2 ] It is not in issue that on May 5, 2012, the Accused and the Complainant met by a convenience store in Chilliwack, went to the Accused’s home and were together in a shack at the back of the property. It is also not in dispute that an altercation took place involving a knife and that as a result, the Complainant sustained significant injuries.

The Complainant testified that she was the victim of an unprovoked attack by the Accused. In the statement which he gave to police, the Accused suggests that it was the Complainant who attacked him with a knife. The issue is whether or not the Crown has proven beyond a reasonable doubt that the Accused committed each of the offences that he is charged with. [ 3 ] Following is a

summary of the evidence and the facts as I find them and the reasons for judgement in this matter.

Summary of Evidence [ 4 ] On May 5, 2012, the Complainant Danielle Partridge was living in Chilliwack at a residence on Princess Avenue with two male room mates. That evening that residence was the site of a birthday party for one of the occupants. The Complainant had been drinking and planned to smoke some marijuana. She went to a Mac’s Convenience Store to buy a lighter. On the way to the store, she met the Accused on the street. The two struck up a conversation and he informed her that he had some Caribou Beer, which was the brand the Complainant liked.

He invited her to accompany him to his home for a beer, and she agreed to go because, in her words, “he seemed like a really nice kid.” [ 5 ] The two of them had some friendly conversation on the way to the Accused’s home. When they arrived, she waited outside while he went to get beer for them. They drank their beer in the backyard, near a shed at the back of the property. The Complainant testified that she was suddenly pushed into the shed and the door was closed. It was dark, but she could see an arm swing towards her and she felt a slashing across her face. This was very sudden and unexpected for her.

She testified that she was horrified, and believed that she was going to die. She testified that the Accused said to her “do you want me to slit your throat right now?” She continued to struggle and felt the blade of the knife at her throat. The Complainant reached into her purse, took out her cell phone and struck the Accused on the head with it as hard as she could.

This seemed to stun him momentarily and allowed her to escape from the shed. [ 6 ] The Complainant testified that the Accused made this cryptic remark to her as she was leaving: “you’re not going to like what they do to you when they see what you did to my face.” The Complainant left, seeking help for her injuries. She arrived at a location where two ambulances were parked, but was unable to locate anyone around them. Eventually she arrived home and went to her bedroom.

One of her roommates called 911 to obtain medical help for her. [ 7 ] Nelson Steal, one of the Complainant’s roommates, testified that the Complainant came home “yelling and screaming” early on the morning of May 5 th , bleeding and appearing to be in pain. He said that he didn’t know if she had been cut or shot. He testified that there had been a party in the home that night and the Complainant had been drinking, but he had not seen her use any drugs. When the Complainant arrived home injured, Mr. Steal told the other roommate to call 911. In a Statement of Admissions filed pursuant to

section 655 of the Criminal Code , it is admitted as a fact that police were called at 5:06 a.m. on May 5, 2012. [ 8 ] The Complainant was taken to hospital where she was treated for her injuries. She had a significant number of cuts to her body.

Photographs taken of her in hospital show a deep cut to the bridge between the thumb and forefinger of her left hand (which required a number of stitches), deep cuts to the middle finger, ring finger and pinkie finger of her left hand (which cuts appear to align and which all required stitches), a cut on the right side of her face above the outer side of her right eyebrow, a cut above the middle of her upper lip, a larger cut about 4 centimetres in length to the right side of her face at the same level as her eye between the eye and ear (requiring stitches), two long scratches (about 5 centimetres long) on the right side of her neck just below the jawbone, scrapes to her neck, as well as a cut and two perpendicular scratches on her right hand.

The Complainant testified that the cut to her eye has left scarring and that for a time she lost the ability to move her left hand. [ 9 ] The Complainant testified that she was unarmed that night. She denied any sexual interest in the Accused at any time that night. She said that her sexual orientation was not such as to interest her in the Accused sexually. She admitted that in the past she has worked as a sex trade worker, but denied that she was doing so that night.

She also stated that when she had worked in that field in the past, her practice was to obtain money up front from her clients, and she would never have accompanied a potential customer in this manner. She emphatically denied the suggestion that she accompanied the Accused for the purpose of a sexual encounter, either for money or otherwise. [ 10 ] The Complainant recalled other strange statements made by the Accused that evening.

She testified that he told her “I’m a pawn, you’re a pawn” and “there is a gun to my head.” [ 11 ] The Complainant was able to identify the Accused from a photo lineup as well as in court. The Accused admitted his involvement with the Complainant to police and identity of the Accused as the person who was with the Complainant that night is not in issue. [ 12 ] Gordon Craig, a neighbour of the Accused, testified that on May 5 th at around 5:00 a.m. he was awake and in his bathroom.

From outside he could hear the sound of someone running as well as a female voice saying “oh no.” He described the voice as loud and panicky. [ 13 ] The Accused was arrested at his home at 9:30 a.m. by Corporal David Finnen of the RCMP. Corporal Finnen testified that the Accused was arrested in the living room of his home. At the time of his arrest, the Accused had a puffy bottom lip and a small cut in the center of his forehead, slightly to the right.

The Accused was transported to police cells by Constable Ian Gray. [ 14 ] In cross-examination the Complainant denied that she was offering sexual services to the Accused as a means of raising money to buy drugs. She testified that she is now clean and sober, but at the time was able to obtain drugs from the house next door to where she was living. [ 15 ] The Complainant was also cross-examined about her prior criminal record.

That record includes an assault on a woman that she had lived with in Prince George, and an attempt to try to escape from police while handcuffed. [ 16 ] Police attended to the Accused’s home on the morning of May 5, 2012 at 7:00 a.m. to preserve the scene as it existed. Constable Jonathan Chalifour of the Chilliwack RCMP was alerted to the presence of a knife near the back of the shed at the Accused’s home by another officer. Constable Chalifour seized the knife, and in a Statement of Admissions filed pursuant to

section 655 of the Criminal Code , counsel acknowledge and agree that blood was found on that knife containing the Complainant’s DNA. [ 17 ] The Accused did not testify at trial, but with the consent of Crown and Defence Counsel, three statements made by the Accused were entered into evidence and conceded to be voluntary. (Each statement was also found to be voluntary in the course of a voir dire.) In a recorded conversation had between the Accused and Constable Ian Gray of the Chilliwack Detachment of the RCMP at around 9:50 a.m. on the morning of May 5, 2012, the Accused told Constable Gray that the Complainant tried robbing him and took his wallet with $75 cash in it.

In the same interview he later told Constable Gray: “You know that girl last night man, I swear to God, she was a, she tries walking out with my money and just oh!... She’s trying to walk out with everything of mine. It’s like ‘Are you kidding?’ And I tried stopping her and she started pushing me and fighting me, and it’s like, ‘Oh my God”, you know, who the hell do you do think you are?” [ 18 ] The Accused told Constable Gray that the Complainant “took a couple of swings at me, so I defended myself.” He said that this took place somewhere around Price Smart Foods in Chilliwack.

He later said “She just started swinging at me and I’m getting charged for assault?” The Accused also denied that he wanted sex from the Complainant, saying that he had an ex-girlfriend who he could have sex with if he wanted to. [ 19 ] After a call was placed to the Accused’s lawyer, the Accused said to Constable Gray “So I’m the one being charged with assault after I’m the one that all gets stabbed?” He later added “I am the victim. She did, she tried stabbing me and stole my wallet.” Later on he said “I almost get stabbed and defend myself and she’s... I’m the one in here.

I should have just called the cops right away.” [ 20 ] After initially telling Constable Gray that the incident had taken place near Price Mart Foods, the Accused changed the location when asked what it was that the Complainant had tried to stab him with. He said that they were in the storage shed at the back of his yard and there were putty knives in the shed. He said that the Complainant must have grabbed one of those knives.

He said that she tried to stab him, he pushed her back and she kept coming at him, referring to her as a “frickin’ robot.” [ 21 ] Later on in the day, the Accused was interviewed at greater length by Corporal Brett Lounsbury and Constable Gray. He told Corporal Lounsbury that when he met the Complainant she asked him for a cigarette and asked him if he wanted to hang out.

He said “sure, I got some beers.” He said that he didn’t want to have sex with her, adding that “one thing led to another.” [ 22 ] In the course of this interview he told Constable Gray that “I thought there was money there [in his wallet], thinking about it, I went grocery shopping. I didn’t have money.” He also told Constable Gray that when he and the Complainant arrived at his house, they didn’t even start drinking yet. He went to get a flashlight because it was dark inside the shed. He said that there were knives in there that he used to strip wire for the copper inside.

He said that once the two of them were inside the shed, there was no exchange of words. The Complainant had a knife and he tried to take it away from her. He was vague about what happened inside of the shed, saying “well we were frickin’ moving around. It’s a small frickin’ shed, there’s stuff in there. Obviously it happened,” adding that he “didn’t get the knife, it just, I don’t know where the hell it went to.” He said that he probably ended up picking it up and putting it in a box. [ 23 ] The Accused told Constable Gray that the Complainant ran out of the shed.

He tried to clean up the blood in the shed, adding that “there wasn’t much.” He said that he ran up to the Complainant to apologize. He saw some blood on her face and he described the Complainant as “scared shitless.” [ 24 ] Corporal Gray asked the Accused why he should believe him about what happened. The Accused replied “I’m not asking you to. I feel like shit. Send me to God damn jail. I really don’t care ‘cause you know what, I wouldn’t want to live with that. Honestly send me to jail. I don’t care because, you know what, I think I should deserve to go to jail because of that.

You know.” When asked to explain this statement, the Accused denied that he intentionally injured the Complainant, but he said he felt that way because the Complainant “had to live with that.” [ 25 ] The Accused agreed with Constable Gray that the Complainant got the worst of the injuries, while he was relatively unhurt. Constable Gray tried to sum up the Accused’s account of what happened. The Accused said that he went to get a flashlight and when he came back he saw that the Complainant had a knife. He said: “So she was like, I was like, fuck you got a knife now. There was no exchange of any words after that.

It was just, tussle, boom, she’s out the door, you know, screamin’ and it was like, blood, you know, that quick. I didn’t have time to look at her frigin’ face and be like, oh my God, you know.”

[26] The Accused later added that he didn’t grab the knife blade. He grabbed her hand and the two of them tussled. He later toldCorporal Lounsbury that he didn’t have a flashlight on in the shed, but the door was open, which gave him enough light to see the knife.He also acknowledged that the Complainant never asked him for money. This was an assumption he made. [27] The Accused was asked once again by Constable Gray to describe the struggle that took place.

The Accused said that hegrabbed the Complainant’s hand and she started “throwing herself around.” He said that she pushed herself against him and they “topsy-turvy tussled.” He said that the two of them fell at first, but ended up standing up. Then the Complainant ran out. He said that he cleanedup the blood with toilet paper that he flushed. Position of the Parties [28] The Crown, in a lengthy written submission, argues that the Complainant’s version of events has a number of indicators ofreliability. Her evidence includes admissions against interest, and is corroborated by independent factors.

These corroborating factorsinclude the presence of Caribou beer on the porch of the Accused’s home (which the Complainant says was the brand of beer she wasgiven by the Accused), her reciting personal information about the Accused which she says she was told by him (being information thathe confirmed to police in his interview), her description to police of the layout of things that were on the property where the incident tookplace, her recollection of how the shed door opened and things which were inside the shed, and the Accused having an injury in the areawhere the Complainant says that she struck him with her cell phone.

The Crown also argues that the Accused’s expressions of remorse,while not strong enough to support a conviction alone, are a further circumstance consistent with the Accused’s guilt and inconsistentwith his innocence. [29] On behalf of the Accused, his counsel acknowledges that there was a struggle between the Accused and Complainant, but heargues that the evidence before the court is consistent with two possible explanations and that the Accused is entitled to the versionbeneficial to him.

He points out that in the course of his interviews with police the Accused maintained that he never handled the knife.In response to the imbalance of injuries between the Complainant and the Accused, Defence Counsel argues that the fact that the bulk ofthe Complainant’s injuries are on her left side are consistent with her holding the knife in her right hand, and injuring her left side in thecourse of a struggle for control of the knife. He argues that motive is an important consideration here and the Complainant had thestronger motive, that being an attempt to get money from the Accused. Analysis (

a) Burden of Proof [30] This Accused challenges the credibility of the Complainant. He relies on the application of the presumption of innocence tosupport his contention that the Crown has failed to prove the offences that he is charged with beyond a reasonable doubt. Thepresumption of innocence is enshrined in s. 11(

d) of the Canadian Charter of Rights and Freedoms (the “Charter”). It requires that anaccused cannot be convicted unless each essential element of the offence that he has been charged with has been proven beyond areasonable doubt. It also requires that where a defence is raised and where there is an evidential foundation for that defence, the defencemust also be disproved beyond a reasonable doubt in order to sustain a conviction. [31] The test in a criminal trial is not which side is believed, but whether the Crown has proven the offence beyond a reasonabledoubt.

As Justice LaForest said, speaking for the majority of the Supreme Court of Canada in R. v. MacKenzie, (SCC),[1993] S.C.J. No. 7, “The two versions cannot be simply pitted against one another in isolation, rather all of the other evidence must alsobe considered.” I keep in mind that I must not examine the facts separately and in isolation with reference to the criminal standard.Rather, I must consider whether, on the total body of evidence, viewed as a whole, the Crown has proven each essential element of theoffence beyond a reasonable doubt.

I also remind myself that an accused is not required to show a motive for why the complainantwould lie. R. v. Krack (1990), (ON CA), 56 CCC (3d) 555 at 561-562 (Ont. CA). [32] In R. v. Lifchus (SCC), [1997] 3 SCR 320, the Supreme Court of Canada discussed the meaning of thephrase “reasonable doubt. The court said that a reasonable doubt is a doubt based upon reason and common sense. It is not based uponsympathy or prejudice. It must be logically connected to the evidence. It does not require proof to an absolute certainty, nor is it animaginary or frivolous doubt.

It requires more than the belief that an accused is probably guilty. (

b) Right to Silence [33] In this case the Accused did not testify on his own behalf. The Accused is not compelled to testify, he has a right to remainsilent under the Charter and as a general rule, no adverse inference should be drawn the failure of an accused to testify on his own behalf.An exception to that general rule exists where the evidence on the Crown's side standing alone supports the conclusion of guilt beyond areasonable doubt and calls for an explanation from the accused. This principle was explained by the British Columbia Court of Appeal inR. v.

R.N.D. (1994) (BC CA), 89 C.C.C. (3d) 449, in which our Court of Appeal accepted the following statement ofthe law by Madam Justice Arbour, then of the Ontario Court of Appeal, in R. v. Johnson (1993) (ON CA), 79 C.C.C.(3d) 42: On the other hand, in the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentiarysignificance when the accused is in a unique position to provide such an explanation. Failure to testify is not evidence of guilt. It cannotbe used to relieve the Crown of its burden of proving guilt beyond a reasonable doubt.

However, when an innocent explanation for anincriminating set of facts is not offered by the accused, or when his explanation comes solely from an out-of-court statement which hasbeen introduced in evidence, if he does not submit himself to cross-examination, the judge or jury may properly draw from that aninference unfavourable to the accused. In short, judges, like juries, may draw an inference from the failure of the accused to testify, but only in circumstances where theinference is justified. For one thing, if, at the end of the prosecution's case, the evidence is such that a properly instructed jury, acting

reasonably, could not convict, the accused is entitled to an acquittal, on a motion to that effect, without having been called to tender adefence, let alone to testify. However, assuming that the prosecution's case is strong enough to survive a motion for a directed verdict,and that there is therefore a case for the defence to answer, it is not always appropriate to draw an inference of guilt from the accused'sfailure to testify.

The inference is linked not only to the strength of the Crown's case, but also to the logical expectation of an innocentexplanation which can either come only from the accused, or, as in the case of an alibi, would be strengthened by his oath. [34] In this case Crown Counsel has not asked me to draw an adverse inference against the Accused as the result of his failure totestify and I will not do so.

I would also note that, although the Accused did not submit to cross-examination, he faced a form of cross-examination in the manner in which he was questioned by the officers who interviewed him and in the way that they challenged hisversion of events. (

c) Use of the Accused’s Statements to Police [35] Where, as in this case, the Crown introduces into evidence as part of its case a statement of an accused, that statement becameevidence for the accused as well as against him. It is open to the trier of fact to consider those statements as proof of the facts containedtherein. R. v. Lynch (1988), 30 O.A.C. 49 (Ont. C.A.); R. v.

Humphrey (2003) (ON CA), 172 C.C.C. (3d) 332 (Ont.C.A.) [36] With respect to those portions of such a statement that are beneficial to an accused, or which support a defence, a court mustconsider whether or not the statement may be true or whether it raises a reasonable doubt as to the guilt of an accused. [37] It has been held that a court must apply the same analysis as to the credibility of out-of-court exculpatory statements made byan accused and tendered as part of the Crown’s case as if the accused made those statements in court.

In other words they must besubjected to the analysis suggested by the Supreme Court of Canada in R. v. W.(D.) (SCC), [1991] 1 SCR 742. The lawis somewhat unclear on this point. In R. v. Campbell (1995) (ON CA), 24 O.R. 537 (Ont. C.A.), Mr. Justice Finlaysonof the Ontario Court of Appeal stated: The [instructions on credibility in R. v. W.(D.)] appears to contemplate a trial where the accused has testified.

A significant factor in thecase under appeal is that the appellant did not testify and accordingly the conflict of credibility is between the sworn evidence of thecomplainant and the unsworn out-of-court statements of the appellant to the police. [38] A different approach was taken in R. v. R.S.L. (2006) 2006 NBCA 64 , 209 C.C.C. (3d) 1 (N.B.C.A.), where the courtheld that exculpatory statements of an accused which are tendered by the Crown must be subjected to analysis with respect to theircredibility as if they had been sworn testimony of the accused in court. Mr. Justice J.C.M.

Richard of the New Brunswick Court ofAppeal rejected the position of the law stated in R. v. Campbell and stated: 97 I consider the distinction raised in Campbell between the testimony of an accused and other types of evidence supporting thedefence as meaningless when it comes to the need for a W.(D.) type instruction. In R. v. Haroun, (SCC), [1997] 1S.C.R. 593, Sopinka J., dissenting, opined that the principle stated by Cory J. in W.(D.) also applies to other defence witnesses (at paras.14-15): In W.(D.), the accused testified that the incidents described by the complainant had never occurred.

There was a simple contest ofcredibility between the accused and the complainant. No one else testified for either the Crown or the defence. It is therefore notsurprising that Cory J. mentioned only the accused in his suggested charge (at p. 758). However, it is clear from Challice (ON CA), 45 C.C.C. (2d) 546, and Morin (SCC), [1988] 2 S.C.R. 345, that the principle stated by Cory J. alsoapplies to other defence witnesses.

Whether the testimony is that of the accused or another defence witness, it is always possible that itwill raise a reasonable doubt in the mind of the jury even if the jury does not necessarily believe it. This principle is based on the Crown'sduty to prove that the accused is guilty beyond a reasonable doubt. The accused has nothing to prove either by him -- or herself orthrough the defence witnesses. Cory J.'s comments in W.(D.) thus apply not only to the testimony of the accused, but to the defence evidence as a whole.

Accordingly,the trial judge must instruct the jury, first, that if they believe the testimony of the accused or the defence witnesses, they must acquit.Second, even if they do not believe the testimony of the accused or the defence witnesses, if they have a reasonable doubt afterconsidering the evidence as a whole, including the testimony of the accused and the defence witnesses, they must also acquit. (Emphasisadded). [39] Mr.

Justice Richard went on to conclude: 100 I see no valid reason why the exculpatory statement of an accused that is produced by the Crown should not be treated in the samemanner as evidence adduced by the defence.

In either case, the trial judge should instruct the jury that the principle of reasonable doubtapplies to credibility, that the exculpatory statement can give rise to a reasonable doubt even if not accepted, that it is unnecessary forthem to resolve conflicting evidence if they feel unable to do so and that a conflict in the evidence is capable of giving rise to areasonable doubt. [40] In my view this is the more persuasive statement of the law and I will apply the analysis suggested by the Supreme Court ofCanada in R. v.

W.(D.) to the version of events suggested by the Accused to police in his interview with them.

(

d) Elements of the Offence of Aggravated Assault [41] Aggravated assault is defined in section 268(1) of the Criminal Code as follows: Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [42] Wounding has been defined as the breaking of the skin in R. v. Littletent (1985) 1985 ABCA 22 , 17 C.C.C. (3d) 520(Alta. C.A.). I believe that more than simple cuts would be required to turn an assault into an aggravated assault, but I am satisfied thatthe injuries sustained by the Complainant in this case may fairly be characterized as wounds.

He face and hands required a noticeabledegree of stitching, and if I accept her evidence that the Accused repeatedly slashed at her with a knife in a darkened room, I have nodifficulty in concluding that her life was endangered. [43] The mens rea required for this

section was described by the Supreme Court of Canada in R. v. Godin (SCC),[1994] 2 SCR 484 as “objective foresight of bodily harm.” Mr. Justice Cory added: It is not necessary that there be an intent to wound or maim or disfigure. The

section pertains to an assault that has the consequences ofwounding, maiming or disfiguring. (

e) Elements of the Offence of Unlawful Confinement [44] Section 279(2) of the Criminal Code makes it an offence to “confine, imprison or forcibly seize another person” without lawfulauthority. The Accused in this case has not raised a defence of lawful authority and I do not find that it applied on the facts in evidence. [45] The definition of unlawful confinement was considered by the Ontario Court of Appeal in R. v. Gratton (1985) 18 C.C.C. (3d)462 (Ont. C.A.). In that case, Mr.

Justice Cory, then a member of that court, found the following definition to be an “excellent”definition of confinement: “A physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving theperson of his or her liberty to move from one place to another, is required in order to constitute forcible or unlawful confinement. Suchconfinement need not be by way of physical application of bindings.” (

f) Elements of the Offence of Threatening [46] The elements of the offence of uttering a threat under

section 264.1 of the Criminal Code require proof that the Accused uttereda threat to the Complainant to cause her bodily harm and that he did so with intent to intimidate her or instil fear in her. The SupremeCourt of Canada in R. v. Clemente (SCC), [1994] 2 SCR 758 has said that, in determining whether or not a statementamounts to a threat, it must be viewed in the context or circumstances in which it was made. It must be determined whether or not thewords would convey a threat of death or bodily harm to a reasonable person under those circumstances.

The mens rea of the offence isthat the words were intended to intimidate or be taken seriously. Analysis [47] The Complainant has testified that, without any warning or provocation, the Accused pushed her into a dark shed, and beganstabbing at her with a knife, cutting her a number of times with wounds requiring considerable medical attention. In the course of astruggle with the Accused, she testified that he told her “do you want me to slit your throat right now?” She also testified that she wasable to escape from him by striking him on the head with her cell phone.

It is clear from independent evidence that she was cut badly onher left hand and on her face. [48] The Accused did not testify, but when interviewed by police, he denied that he had a knife or that he attacked the Complainant.At first he told police that the Complainant attacked him and took his money. He said that she started pushing him and fighting with himand that this took place somewhere around Price Smart Foods in Chilliwack. He later said that the incident occurred in a shed on the backof the property that he resides at, and that there wasn’t any money in his wallet for her to take.

The Accused was vague when asked foran explanation about how the Complainant was wounded so badly, simply saying that the two of them “tussled”. [49] In considering the question of credibility and the conflict in the two versions of events, it is not simply a matter of decidingwhich version I believe, but whether or not the Crown has proven each essential element of each offence beyond a reasonable doubt.Where there is conflicting evidence in a case such as this, the law requires that the conflict be analyzed according to the followingdirections set out by the Supreme Court of Canada in R. v.

W.(D). (SCC), [1991] 1 S.C.R. 742 at p. 757, which Iparaphrase as follows: First, if I believe evidence which raises a defence or negates an essential element of the offence, then I must acquit. Second, if I do not believe the evidence raising a defence or negating an essential element of the offence, but I am left in reasonabledoubt by it, I must acquit. Third, even if I am not left in doubt by evidence raising a defence or negating an essential element of the offence, I must ask myselfwhether on the basis of the evidence I accept, I am convinced beyond a reasonable doubt of the accused’s guilt.

[50] In R. v. C.W.H. (1992) (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), Mr Justice Wood gave the followingfurther advice: “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” [51] Applying this analysis to the facts before the court, I do not find the version of events put forth by the Accused to police to becredible for a number of reasons. Firstly, it is not credible that the Complainant would suffer the majority of the injuries from thealtercation with the Accused if she was the aggressor.

It is especially not credible that she would sustain injuries to her left hand in theareas where they are located if she was the one wielding the knife. It is also not credible that the Accused would have as few injuries ashe did if he was the one being attacked by a knife in a darkened room. [52] I also conclude that the Accused can not be believed in what he told police because of the manner in which he changed his storyover the course of his interviews.

Among the most notable are his initially telling police that the incident occurred near Price SmartFoods, and later confirming that it occurred where it obviously took place, in the shed on the property where he lived. He also began theinterview insisting that he was the victim of a robbery, saying that the Complainant took his money, but later stated that he didn’t haveany money to take. When he finally described how the altercation occurred, his version did not contain any mention of the Complainanttaking his money or his wallet.

His comments about what became of the knife are at odds with the independent evidence. He first toldpolice that he didn’t know what became of the knife, and then said that he probably put it in a box. The knife with the Complainant’sDNA was found at the back of the shed.

The version of events that the Accused gave the police appears to be that of someone willing tochange or contort the facts to suit what he perceived to be to his advantage, rather than that of someone telling the truth. [53] The version of events that the Accused gave the police does not raise a reasonable doubt such that it is one that might possiblybe true.

It is at odds with the independent evidence, most notably the injuries to the Complainant and the lack of injuries to the Accused,other than the injury to his forehead where the Complainant says she struck him with her cell phone. [54] Having rejected the version of events given to the police by the Accused, I must next consider whether or not the Crown hasproven the offences charged beyond a reasonable doubt. I find that the evidence of the Complainant is consistent with the independentevidence in this matter.

Her injuries accord with what would be expected of someone who is suddenly attacked with a knife, rather thanof someone who is the attacker in a darkened room. The injuries to her left hand are consistent with defensive injuries, and the cuts to herface are consistent with someone facing the business end of a knife rather than someone holding its handle. Her room mate Nelson Stealtestified that when he saw her before the incident she appeared in good spirits and when he saw her after, she was in considerabledistress.

A neighbour of the Accused, Gordon Craig had testified that it was a female voice that he heard appearing to be in distress. These accounts do not match the description of someone who was the intended aggressor. [55] The Complaint’s evidence that she was the victim of a knife attack was very credible. She testified in a manner in which shereadily admitted things which were admissions against her own interest, both on collateral matters and also regarding inconsistencies inher statement to police.

I am unable to accede to the defence contention that she should be found not to be credible because of thoseinconsistencies, in light of the fact that she made her statement to police shortly after sustaining significant injuries.

Because of its logicalnature, its consistency with the independent evidence, and its withstanding of the scrutiny of cross-examination, I accept the evidence ofthe Complainant and find her version of events to be a credible account of what took place between her and the Accused. [56] Having accepted the Complainant’s evidence on the important aspects of what transpired between the Accused and her, I amsatisfied beyond a reasonable doubt that the Accused wounded the Complainant with a knife and committed an aggravated assaultagainst her.

I am also satisfied beyond a reasonable doubt that the Accused forced the Complainant inside of a shed, depriving her of herliberty and preventing her from leaving for the duration of the time from when she was pushed inside until she was able to escape.

I amsatisfied beyond a reasonable doubt that the Accused unlawfully confined the Complainant within the meaning of section 279(2) of theCriminal Code. [57] Finally, I am satisfied beyond a reasonable doubt that the Accused said to the Complainant “do you want me to slit your throatright now” under circumstances in which any reasonable person would feel intimidated and afraid.

I am satisfied that the uttering ofthose words in that context and those circumstances would convey a threat of death or bodily harm to a reasonable person, and that theAccused intended for them to intimidate the Complainant and to be taken seriously by her. [58] For the foregoing reasons I find the Accused guilty of each of the three offences that he is charged with. Dated at the City of Chilliwack, in the Province of British Columbia this 1st day of March, 2013. ________________________________ The Honourable Judge K. D. Skilnick