R. v. Doak Date:, 2017 BCPC 52

Citation: R. v. Doak Date: 20170206 2017 BCPC 52 File No: 62261-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DARREN DOAK ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: L. Ostry Counsel for the Defendant: M. Klein, Q.C. Place of Hearing: North Vancouver , B.C. Dates of Hearing: June 29, 30; September 6, 2016 Date of Judgment: Fedbruary 6, 2017

[1] The accused is charged with aggravated assault of one Wilfred Murphy on June 17th, 2015, in Squamish contrary to s. 268(2)of the Criminal Code of Canada. He has pleaded not guilty. This charge arose out of a confrontation between the accused and hisemployer in the accused's logging truck facility in Squamish. He admits that in the event he is found guilty of an assault, that it was anaggravated assault as charged.

Thus, I do not, in these reasons, intend to deal with the formal admissions made as to the nature andextent of the complainant's injuries. [2] The accused testified and relies on a defence of self-defence pursuant to s. 34(1) of the Criminal Code of Canada. The Crownasserts that this defence has not been made out, that s. 34(1) does not give rise to such a defence. In particular, Ms.

Ostry argues that theforce used by the accused was unreasonable in the circumstances. [3] Both parties agree that the onus is on the Crown where the accused, as in the case at bar, raises the defence to prove beyond areasonable doubt that it does not apply. Thus, if I have a reasonable doubt concerning this defence and its application to the facts beforeme, it is to be resolved in favour of the accused. [4] I do not intend to set out the legal principles which apply in this case at the outset and concerning which there is really nodisagreement between the parties, but will refer to the case law they filed.

I will then summarize the evidence of the complainant and theaccused, deal with the law on credibility, make findings of credibility after first outlining the positions of each party on point, then dealwith the submissions of counsel on the single charge before me and the defence of self-defence, then make findings of fact relevant tothese issues, and thence state my conclusion based on same. The Law [5] The principles that apply in this case are not really in dispute. Crown relied on five cases as follows: 1. R. v. Brodie, [1995] B.C.J. No. 1298 (B.C.C.A.); 2. R. v. Fontaine, 2011 BCCA 140; 3. R. v.

Williams, 2013 BCSC 1774 , 2013 B.C.J. 2133 (obiter of Romilly J. at paragraph 87, et seq.); 4. R. v. Fisher, 2015 B.C.J. No. 2262; 5. R. v. Homeniuk, 2015 BCSC 1827. [6] Mr. Klein, counsel for the defence, referred me to six cases as follows: 1. R. v. J.H.S., 2008 SCC 30; 2. R. v. Kandola, (BC CA), [1993] B.C.J. No. 1035; 3. R. v. Cunha, 2016 ONCA 491; 4. R. v. Levy, 2016 NSCA 45; 5. R. v. Presley, 2015 BCPC 61; 6. R. v. Spahan, 2014 BCPC 180. [7] I have considered all these cases.

Rather than now attempt to summarize the important principles that emerge therefrom, Ibelieve it will be more effective to deal with them as necessary in my review of counsel's various submissions both for Crown anddefence in this case. Evidence of Mr. Murphy [8] Mr. Murphy was aged 65 in June 2015, weighed 230 pounds, and stood six feet tall. He had spent 45 years working in thelogging industry. In addition, he was a Reiki Master and had been so for some years. He was clearly extremely proud of thisqualification and, in June, it was central to his self-identity.

As such, he could perform Reiki stress management massage on people. [9] He describes his craft as a series of techniques that one trains to learn. In answer to certain questions from the court, he testifiedas follows: Q Is coursework required to become a Reiki Master training? A Yes, there's four courses, a fifth course is a Reiki Master teacher, and then you're allowed to bring in others that wish to becomeReiki practitioners. Q And when did you start learning about Reiki stress management? How many -- A 2003 is when I began my training. Q 2003? Yes? A Yes.

Q All right. So for, roughly, 12 years, then, before June 17th, 2015, you had been involved in learning about this particular -- what would you call it, an art, a methodology, a form of healing? How would you describe the Reiki stress management? A It's a series of techniques that you train for. Q Could we call it a technique? A The training of a priest, is that technique? Q Maybe. I -- A Okay. Then you can call it technique. Q Okay.

And so in that 12-year period of time, was this a regular thing that you did, working and studying to improve your capabilities and qualifications as someone who could administer this sort of stress management training? A That is true. Q All right. Was it an important part of your life in those 12 years? A Very important, that's what got me to Jerusalem. Q I see. Okay. And who said, if anyone, that you could call yourself a Reiki Master? Was that an earned qualification? A It was from a Reiki Master teacher. I have the certifications with me in my pickup. Q Okay. A As I progress through the course. Q Okay.

So -- and that was an earned qualification? A Yes. Q And properly bestowed upon you by another Reiki Master? A Teacher. Q Teacher? And bestowed upon you prior to June 17th, 2015? A Correct. [ 10 ] There is no evidence that on June 17th, 2015, the accused knew Murphy was a Reiki Master or for how long or that he took his position and training as such very seriously. [ 11 ] Murphy described the accused in various ways, as a friend, employer, a high-profile logging hauling contractor, and a reasonable man in most cases.

He felt he had a very professional respectful relationship with him prior to the alleged assault. [ 12 ] In the spring of 2015 when he was low on funds and had finished working in Alberta and learned that Mr. Doak (J.R. Trucking) had a job opening for a logging truck driver, he applied successfully for it and then commenced work in Squamish. In his direct evidence, he thought he had commenced work for Doak not more than two weeks prior to June 17th, 2015.

In cross-examination, he agreed he had commenced work far earlier on April 27th, 2015. [ 13 ] His job was to attend at various loading sites in the mountains near Squamish, often as early as seven a.m., have his truck loaded with logs, and then drive them down to a dryland sort in Squamish, I understood, operated by Garibaldi Forest Products whose main manager was one Bryan Shier. [ 14 ] June was the fire season and, by June 16th, because of this and a shortage of logs, as well as an ongoing forest fire in the nearby Elaho Valley, things in the logging industry were starting to shut down.

The focus was on the fire described by Murphy as an emergency situation. [ 15 ] On June the 16th, Murphy agreed he had missed his first load of logs and was from two to three hours late in being at a site for loading that morning. Mr. Doak was then away on a long haul. Murphy was arriving at work as the first load was being driven down the mountain.

A crew member at the tree farm teased him over the radio that the reason he was late was that he was with a woman the night before, and he was. [ 16 ] He explained to, inter alia , his fellow workers that he had met a 41-year-old woman, one D., at the farmers' market over the prior weekend and had provided Reiki stress management to her as she was then dealing with a lot of stress in her life and he was able to teach her a method of destressing. She was the same age as his daughter. There is no evidence that the accused received this detailed explanation from him on June 16th.

Murphy said he was not upset by this teasing as everyone to whom he had explained what had actually happened was receptive to his explanation. I repeat he did not provide such an explanation to the accused on June 16 and there is no evidence the accused received one over the radio in his truck while doing a long haul that day. [ 17 ] Later on June 16th, Murphy received a text from Doak, in essence, telling him, due to weather and a shortage of logs, that his employment was terminated. He thanked Doak for the work in response and made a decision to head home to Prince George where he

lived hoping to find work there. While working with J.R. Trucking, he stayed in a trailer he described as an RV parked in the J.R. yard in Squamish. [ 18 ] The next morning, June 17th, Doak texted or called him and indicated that due to the fire in the Elaho Valley, a driver was needed for a water truck then located at the Squamish dryland sort which was to be trucked on a low-bed trailer to the site of the fire to supply water to the firefighters. No other J.R. driver was said to be available and Doak requested that he go.

He agreed and was told to report to the dryland sort that morning which he did. [ 19 ] He knew the people at Garibaldi, they were friends, and his agreeing to help out had nothing to do with money. He believed he would be paid only a pittance. Rather, he was wanting to help out with an emergency situation. [ 20 ] He met with Mr. Schier, but said in cross-examination that the job did not work out, that Garibaldi was somehow not prepared. Later, he explained that he had, in fact, helped load the truck on a low-bed trailer and had gone with it to the Chevron fuel station in Squamish.

There, he apparently saw a fully loaded J.R. log truck parked, but no driver. He concluded that, contrary to what Mr. Doak had told him, there was another J.R. driver available to drive the water truck, namely, this missing driver, and therefore decided not to go further.

He received a telephone call between 9:30 and 10:30 a.m. from a supervisor at the tree farm after fueling up and told him he believed this other J.R. driver was available somewhere and that he would not be going to the fire. [ 21 ] He agreed he had lost out on some money in making this decision and said variously that at best this whole attendance at Garibaldi was a waste of his time or was not a waste of his time.

There is no evidence he told Bryan Schier of his decision not to help out with this emergency fire situation. [ 22 ] He later that morning returned to the J.R. yard to hook up his trailer to start the trip home. He had not earlier told Doak of his decision not to go to the fire.

About 45 minutes after his call with the supervisor and when he was in the J.R. yard, Doak arrived in his self-loading logging truck and parked beside Murphy's pickup, then backed up to, and I believe, hitched onto his trailer. [ 23 ] Doak spoke to him and told him that he had embarrassed Doak by not fulfilling his duties operating his logging truck and accusing him of missing a trip and not commencing work on time. In cross-examination and somewhat inconsistently with his direct evidence, he testified that this morning Doak did not bring up the fact that he had earlier missed a couple of trips.

When it was suggested to him he was late for work on June 5th, he could not recall this, but admitted it could be true. [ 24 ] Murphy testified that Doak also advised him that he had spoken to the tree farm supervisor over the matter of the parked logging truck and that Doak had advised him that the driver in question was, in essence, unable to drive as he was out of hours or overworked. Murphy said that by law, a logging truck driver could only drive 14 hours a day. Doak was both upset with him and quite excited, Murphy felt, because he believed that Murphy had embarrassed him with Mr.

Schier. [ 25 ] Murphy said that he was not at the time upset or agitated, nor was he complaining about being laid off and denied that on the morning of June 17th, he told Doak about his troubles. Murphy testified he explained why he had been late for work on June 16th to Doak on this June 17th morning in the yard and, as well, the service he had performed for the young woman he had earlier met at the farmers' market.

Doak's only evidence on point was that he said he was helping a girl out. [ 26 ] According to Murphy, Doak's response to this explanation that he had given was to state by way of an accusation that Murphy was "just trying to fuck her". Murphy testified that this single comment "defamed his character in the spirit".

He was asked to clarify this in his cross-examination and answered by suggesting that I was a respected judge and that he was respected in his profession (not a log truck driver, but as a Reiki Master) of what he was doing. [ 27 ] He said, "Doak defamed my character in my professional manner as a Reiki Master." His comment was thus offensive to Murphy as it assumed that he had some ulterior motive, intimate companionship with this woman, when he did not. He described Doak's comments as belittling him. Murphy said this on cross-examination: Q And this was insulting to you, this comment from Mr.

Doak was insulting to you? A Yes. 'Cause that's all I have, is my faith and my character. Q Well, it goes to your very core, correct? A Thank you. Q You agree with that? A I do. Q And so there can be no greater insult really. A Thank you. There isn't. Because, you know, I don't operate on money. That's why I'm always broke all the time. It's around to go around. But my history, my family, it's all about faith, service to the community. Q Right. So you reacted to this insult? A That's where I went no. Q Well, sir, you said this goes to your very core, this insult. I'm going to suggest you got angry.

A It was a reaction.

Q You agree, you got angry? A Disrespected, yes. Q Did you get angry, sir? A Disrespected. I wasn't ready to fight. Q Sir, we'll come to that in a moment. Disrespected doesn't quite answer my question. Were you angry at this insult? A I was not angry. I was disappointed in somebody that I thought was my friend and understood my character. THE COURT: Just a minute, please, Counsel. MR. KLEIN: Thank you. THE COURT: Yes. Thank you. MR. KLEIN: Thank you, Your Honour. Q So you say you were merely disappointed? A That's correct.

And that's why I was so surprised to be beat up like that, because that was not my intention, to be involved in a physical altercation, other than say no. [ 28 ] Murphy also testified that this 41-year-old woman had called him on Sunday (I believe June 14th) and explained she was under duress and stress and could not sleep. They met at the Spit in Squamish (he was not clear when) and he taught her how to destress through his training as a Reiki Master. He felt fatherly to her because she was an injured human being.

There is no evidence he told Doak any of this. [ 29 ] Murphy testified that Doak's response when he explained why he had been late on June 16th was to state that nobody tells the truth when they miss a shift, to which he replied, "I do. I explained it the day before," but I have found as a fact not to Doak. [ 30 ] He testified that Doak was variously 30 feet, 15 feet, and perhaps as close as eight feet away when he made the above comment as to Murphy's ulterior motive. He was on the driver's side of his pickup and Doak was near the rear corner passenger side of the box.

Somewhat inconsistently, he said he did not have his phone in his hand, but agreed he was trying to show Doak some emails or texts between D. and himself including the one he had received that morning. [ 31 ] Murphy said he was wearing his glasses. He took them off and put them down as he was not sure where the situation with Doak was going or what was going to happen. He agreed that in the then circumstances this action could be interpreted as a sign of aggression. He did not agree he had put them down so they would not get broken. [ 32 ] He then stepped over the hitch and moved toward Doak.

This did not take long. Doak did not approach him. He wanted to make a point with Doak. He did not know if there would be an altercation. He did not rush at Doak. He said he approached Doak not to hurt him but to get him to stop disagreeing with his core explanation as to why he was late. He did not know when he approached Doak to take into consideration that Doak might have been then in a defensive mood unprepared for what was to come next.

He seemed to believe, as well, that both of them, when he approached Doak, did not know "where it was going to go." [ 33 ] In his direct evidence, he said as he approached, he said simply, "No," nothing more, and raised his hands palm open with his arms extended out 30 inches apart at shoulder height but bent at the elbow. In cross-examination, he admitted that his hands might have been closed fists possibly held up in the air, quite a different matter, in my view.

It did not take long to touch Doak with his open palms at approximately Doak's chest or shoulder area. [ 34 ] He could not recollect hitting Doak on his shoulders with closed fists, but said he did not honestly know and that one would have to ask Mr. Doak. Crown counsel, of course, did ask Mr. Doak. He was asked in direct how hard he touched Doak and answered: Hard enough that he defamed my character in the spirit, my character, my faith, the principles of how I live was assaulted. [ 35 ] With some effort, Crown attempted to have Mr.

Murphy explain simply whether he had pushed Doak or not and the following somewhat evasive exchange occurred in his direct evidence on point: Q Once your palms made contact with Mr. Doak's body, did you move your arms or your palms in any way, once they made contact with his person? A No. Q Okay. And so just to be clear, did you, for example, push against him with your palms? A I touched him with my palms when he defamed my character. Q Okay. When you touched him, did you exert any force to push against him, or exert any force in any way? A Well, there would have been because I touched him. Q Okay.

But apart from actually making contact with him, did you exert force in the course of that motion?

A Like, how much pressure? Q Yes. A Enough that I was not happy with my character being compromised when the employer assumed he knew what I was doing, treating the young lady. Q What I'm getting at is did you actually push against him once you made contact? A I touched him. Q Okay. Did you push or just touch? A I touched, as I was moving forward. Q Okay. And in -- did you continue to move forward after your palms made contact with him? A No, I did not have a chance, that's when I got beat up. Q Okay. Now, why did you touch your palms against his shoulders, why did you do that?

A To show my displeasure about my character being compromised verbally. [ 36 ] On cross-examination, somewhat inconsistently with the above, when asked if he pushed Doak on making contact, he said it appeared so. Murphy said, when he moved towards Doak and touched him, it was not his intention to be involved in a physical altercation. Rather, that he had done so to show his displeasure at his character being verbally compromised by Doak. [ 37 ] Murphy further testified that he did not know when he first touched Doak whether he intended to hurt him or harm him.

Crown asked Murphy to elaborate as to what was in his mind and Murphy answered: I was injured in the spirit because I was compromised verbally by Mr. Doaks [sic] pertaining to my character in treating the young woman for stress. [ 38 ] Later, he was asked by Crown if at any point in his altercation with Mr. Doak did he want to have a physical fight with him and he responded: A No. But I will state, when we're ready, that Mr. Doak is 15 years my junior, and being in the logging industry as many years as I have, Mr. Doak, operating on hearsay, at my approach to Mr.

Doak, through my years in the industry, he might have assumed that I was there to physically fight with him. Q Why do you say that? A Because I knew Mr. Doak, I know the industry. I'm a hard worker, high energy. So as Mr. Doak -- to him, he didn't want to take any chances, take me out if he thought I was going to take him out. [ 39 ] Murphy repeated a very similar point of view in his cross-examination by Mr. Klein that Doak might in the circumstances have assumed he was there to fight.

This was, in Murphy's view, an assumption that Doak could have made. [ 40 ] In describing the fight as Doak had done, he said it all happened very quickly. He was struck so many times that his next recollection of the beating was when Doak got up and said, while he was still on the ground, "You're not even fighting." He gave similar evidence in his cross-examination stating that he had no recollection of events from the moment he was beat on to the time he was let up, "It was such a shock." Nonetheless, asked by Crown how many punches he had received to his face, he said he was counting six.

He could not recall when he went to the ground nor could he recall, immediately after he made first contact with Doak, that Doak punched him a couple of times as he was moving towards Doak, but said he did not believe this had happened. [ 41 ] The accused's version of events was put to him in cross-examination and, notwithstanding his admitted poor memory of the specifics of the fight, generally he disagreed with it.

He could not recall the accused tackling him or falling on top of him on the ground, nor when he went to the ground, but did agree that these events were entirely possible. [ 42 ] When asked about his injuries in direct, he said he had suffered a cracked rib, did not know how it had occurred, but said it was caused by Doak's contact with him. He could not recall the kind of contact as the incident had happened so quick. He was then invited to read his police statement taken on June 19th and, having refreshed his memory, testified differently that it was Doak's knee to his rib on the way down that cracked his rib.

On cross-examination, he gave a different response as follows: Q Okay. So what you're telling us, you don't know how your rib got fractured, really; is that fair? A That's true. It was part of the incident when I got beat up. [ 43 ] In his direct evidence, he testified that Doak hit him while he was on the ground. In cross-examination, the following inconsistent exchange occurred: Q And just to clarify, sir, does that mean you have no specific recollection of being struck while you were on the ground? A If that means I don't know?

Q Yeah, you don't know? A I don't know. THE COURT: So you don't know if he struck you while you were on the ground or not; is that it? A Correct. [ 44 ] Murphy testified that after he touched Doak first and notwithstanding his evidence that it would have been a fair assumption on Doak's part to conclude that there was to be a fight, that he did not expect Doak's reaction. Rather, he expected that only a verbal exchange would occur and continue and without Doak defaming his character. He never told Doak he wanted to fight with words or to threaten to harm Doak.

He never hit him or fought back. [ 45 ] He did agree with almost all evidence given by Doak as to what had transpired after Doak called the police and an ambulance. He could not recall how long he stayed in the Squamish General Hospital as he was shocked. He agreed that, on later reflection with Doak that evening over beers at the Spit, it had been a situation that neither of them had wanted to be involved in. [ 46 ] I turn now to the evidence of the accused, Mr. Doak. Evidence of Accused [ 47 ] Mr. Doak was 49 years of age in June 2015 and married with children.

He stood five-foot-nine inches in height and weighed 185 pounds. He had worked his whole life doing hard physical work and agreed he was in shape on June 17th, 2015. He owned J.R. Trucking, a company which supplied logging trucks to various contractors including Garibaldi Forest Products which operated a dryland log sorting ground near Squamish and with whom he had an exclusive hauling contract. His contact there was with Bryan Schier. [ 48 ] On June 17th, he said he had known Wilfred Murphy for over 30 years. Murphy was not a friend but Doak felt the two were then on pretty good terms.

Murphy was then about age 65, an okay driver, according to Doak, but not someone he would describe as an old-timer. Several years earlier, Murphy had done some contract hauling for Doak driving his own logging truck. [ 49 ] On April the 27th, 2015, Doak hired Murphy to drive a J.R. Trucking logging truck. On June 16th when the fire season was starting, work slowed down and, as Murphy was the last man hired by Doak, and because there was not then enough hauling work, Doak terminated Murphy's employment, reducing his active fleet from three to two logging trucks. [ 50 ] Murphy was scheduled to drive for J.R.

Trucking on June 16th. He did not turn up for work on time and missed one load of logs. This cost the company $504 in lost revenue on June 16th, not net of expenses such as fuel and insurance costs. He had earlier missed a load on June 5th. Doak said this was not uncommon and he then kept Murphy on. [ 51 ] Doak learned that Murphy had missed this load from another driver who had called in by radio and while Doak was himself on the road driving, I assume, a logging truck doing a long haul.

On Doak's arrival at the J.R. yard later in the day, he learned from a company mechanic that other drivers had said Murphy had missed a morning load because he was late for work as he had been helping a girl the night before on June 15th. [ 52 ] On the morning of June 17th, Doak had gone to the J.R. yard early.

I understood on route, he had received a call from Bryan Schier, the owner of Garibaldi Forest Products and a good customer, advising that there was a forest fire some 64 kilometres outside Squamish and asking if Doak had an employee who could run a firetruck to deliver water to firefighters at the fire site. Doak said he thought he did. Doak then called Mr. Murphy and asked if he wanted to come in and run the firetruck. Doak testified that Murphy agreed to do so. Doak had no other driver at the time to offer up to Mr. Schier. It was understood between Murphy and Doak that Murphy would need to meet with Mr.

Schier that morning to get details of where he was to go and I suppose pick up the water truck, too. After these communications, Doak proceeded to unload his truck. [ 53 ] He later received a call from Bryan Schier who advised he had met Murphy that morning, but the meeting had gone badly, that he told Murphy there was no work for him and to leave.

Thus, Doak learned that Murphy was not going to do the work he had asked him to do for a good customer or a "prime boss." [ 54 ] At some point on the morning of June 17th, Doak also learned that a second driver of his was shut down by Bryan Schier and directed to drive the water truck that Murphy had been asked to drive. This second truck shut down also cost J.R. Trucking lost revenue that morning for loads not hauled.

Doak nonetheless testified that he was not angry with Murphy over this second lost load in two days as he had an exclusive hauling contract with Garibaldi and the revenue from the lost loads could be made up in future.

Doak also said loads were lost all the time for various reasons in his business. [ 55 ] He testified that on the morning of June 17th, he was also not angry with Murphy over the incident Bryan Schier had described between himself and Murphy earlier that morning, nor was he embarrassed about the water truck work falling through, but he testified somewhat inconsistently that he had not told Murphy he was embarrassed, but was embarrassed to the point that he had sent an employee over to do a job with a prime contractor and, in essence, it was not done. [ 56 ] About one-and-a-half hours after his call from Bryan Schier, he went to his yard and saw Murphy there hooking up his trailer to his pickup truck with a view to returning home.

He had not gone there to find Murphy. He parked and went over to retrieve his truck keys and gas card from Mr. Murphy. [ 57 ] He observed Murphy going off about Bryan Schier complaining about him, but not yelling at Doak. It was clear he had seen Bryan earlier in the morning at Garabaldi's dryland sort. Murphy was critical of the way Schier and Garibaldi ran its operation and was also agitated, according to Doak. Doak said he did not then berate Murphy for anything, but did comment that Murphy's work record was not stellar, either, noting he had missed a load both on June 5 and June 16.

[ 58 ] Murphy then advised Doak that his excuse for being late for the June 16th load was that he was helping a girl out, someone that he had a duty to help out.

Doak's immediate response was to state words to the effect that, "You weren't trying to help her, you were trying to fuck her." [ 59 ] Doak did not indicate in his direct evidence and was not cross-examined by Crown as to whether Murphy said anything else to him about the girl, for example, who she was, was he related to her, how long he had known her, and how and why he was helping her and by what means, and why the help caused him to be late for work the next day.

I have no evidence on any of these points. [ 60 ] As well, and I think very importantly, there is no evidence that at or before the time Doak made the above comment, Doak knew any of these facts including, very importantly, that Murphy was then a Reiki Master with massage expertise, that this skill Murphy took very seriously and was essentially a fundamental core aspect of his person or being or that the "help" Murphy had administered to the girl was a form of massage therapy he was trained to do.

Doak said Murphy never discussed any of his Reiki skills or background with him. [ 61 ] At the time he made the above comment, Murphy was standing near the rear of the pickup's box on the driver's side and Doak was on the passenger side halfway down. [ 62 ] Doak testified that his comment caused Murphy to blow up, get angrier than he already was, and commence yelling at him. In his defence, Doak said when he made this comment, he felt it was a sarcastic statement based on what he had heard last evening from his mechanic. He did not feel it was an inflammatory comment.

He was not seeking an explanation from Murphy and was not expecting the reaction he got. He was not angry when he made it. He did not intend to provoke, insult, or offend Murphy and did not think his statement would. [ 63 ] Murphy had his cellphone and immediately indicated to Doak, while waving it and pointing to it, that he had proof, saying he wanted to show Doak something on it.

He was not cross-examined by Crown as to what proof he had offered or as to what he had wanted to show Doak on the phone. [ 64 ] Murphy then hopped over the trailer and rushed towards Doak having first taken his glasses off and having put them down at the foot of the pickup box bedrail. Doak moved back two to three feet and stood there. Murphy was yelling, "I have emails," and was trying to show Doak his phone.

He got to within two to three feet of Doak who thought he was going to pass his cellphone to him at the time. [ 65 ] Murphy then said, "That is my daughter you're talking about." Doak said he did not understand and asked him what he was talking about. He was shocked by what Murphy said and said to Murphy, "I had no idea." Doak could not recall what happened to Murphy's phone at this point. [ 66 ] Murphy charged at Doak with his arms up in the air and his hands both closed in fists and held about 30 inches apart. Murphy slammed his fists into Doak's upper chest and shoulder area just below his collarbone.

On cross-examination, he said Murphy punched him with his two fists. I find that this event and the physical touching was intentional, not accidental, and not consented to by Doak and would be a common assault in both criminal and civil law. Doak was not injured and stepped back putting his weight on his back right leg to stop himself from falling over. [ 67 ] Murphy was then over top of him grabbing at his shirt and head. Doak was crouched down and his first reaction was to try unsuccessfully to bat Murphy's hands and arms away. Murphy continued to push forward.

Doak could not stop him so he closed his eyes, he did not know why, and started swinging, throwing two or three punches with the intent of making Murphy stop his aggression. He said he was flailing his arms trying to punch him to get him away. I note that Murphy at the time weighed 230 pounds and stood some six feet tall. [ 68 ] Doak knew he had hit him, but not where or how many blows landed. Murphy was still on him trying to grab him. Doak's punches had not deterred him. Doak paused very briefly, not even a second. He did not then feel Murphy had a hold on him and was trying to prevent his doing so.

He felt he was unable to retreat. He was bent down with Murphy over him still attacking him and the pickup truck was right behind him. [ 69 ] He closed his eyes again and threw two to three more punches at Murphy intending only to knock him away, but not injure him. He was not aiming at anything, for example, his face. He said in cross-examination he could not recall if he closed his eyes. He might have. Doak could not recall if Murphy punched, kicked, or kneed him. [ 70 ] Shortly, Doak got clear enough of Murphy to rush him, bear-hug him, and then tackle him to the ground landing on top of him and sat on him.

He said they fell hard to the ground in a rocky area. He held Murphy down for about 30 seconds until Murphy stopped flailing and went limp. He denied that he ever kicked or kneed Murphy on the ground. He yelled five or six times at Murphy, "What are you doing" and/or, "What are you thinking," but received no response from Murphy. [ 71 ] After 30 seconds, Doak and Murphy got up.

They had some discussion and Doak asked Murphy, "Your daughter, what do you mean?" To which Murphy responded, "She's not, but I think about her as such." He then said to Doak, "You insulted my spirit," and other things Doak did not understand. Doak asked him to clarify this comment and Murphy did not answer. [ 72 ] Doak estimated that the whole scuffle from when Murphy put his glasses down to when he was on the ground on his back lasted from four to five seconds. [ 73 ] Doak shortly called the police who attended. Murphy was taken to the local hospital by ambulance.

At about 7:00 p.m., Doak texted him to see if he was okay and Murphy asked him to come pick him up at the hospital which Doak did. Having done so, and at Murphy's request, Doak purchased some beer and the two men had a drink together at the Spit in Squamish. They discussed Murphy's working for J.R. Trucking in future on a self-loading logging truck which J.R. owned. Two days later, Murphy came to the J.R. yard and told Doak he could not do the requisite training due to his injuries. Doak recommended that he seek legal advice.

[74] It is not a stretch to conclude that this unfortunate event likely would not have occurred at all if, after Doak made hisunfortunate comment, Murphy had said to him across the pickup truck box words to this effect, "The girl I helped last night I consider tobe my daughter," and shortly describe her issues and how he had tried to help her as a Reiki Master using his skill solely in a therapeuticway, in other words, with a view to immediately clarifying Doak's misconception and, for which utterance, I think it highly likely Doakwould have then immediately apologized. [75] I turn now to the law with respect to credibility.

One helpful decision on point is that of R. v. Parent, 2000 BCPC 11, a decisionof Her Honour Judge Ann Rounthwaite of this court wherein she deal with the credibility of witnesses generally and how a trial judgecan assess it at paragraphs 4 to 5 of her reasons where she touched upon seven different matters, a number of which bear reference, pointnumber 2: ...the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted? 3. ... its internal consistency.

Does the witness' evidence change during direct examination and cross-examination? ... [and] 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? [76] In paragraph 9 of her reasons in Parent, this judge used the well-known term, "ring of truth," as a different way of expressingthe point in paragraph 5 above that I have alluded to, the sense of the witness' evidence. On the same point, our British Columbia Courtof Appeal in a well-known case, Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354, commented, albeit in the context ofcredibility in civil actions. There is, of course, a lower and different burden of proof in such cases as compared to criminal cases.

Nonetheless, Faryna is often referred to as containing a guiding principle for judges in assessing credibility in criminal cases. [77] This well-known case from our Court of Appeal encourages trial judges not to rely too strongly on the demeanour of a witnessor the fact that his or her evidence remains uncontradicted, but rather we should be concerned with whether the evidence of the witnessis consistent with the probabilities affecting the case as a whole.

The credibility test, if you will, arising from this well-known decisionis repeated at page 4 of the Quicklaw report of the reasons as follows: The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [78] In addition to these above principles, there is, of course, the decision of R. v. W.(D.) (1991), (SCC), 63 C.C.C.(3d) 397, that has relevance in this case and Mr. Klein says, as well, R. v. C.W.H. (1991), (BC CA), 68 C.C.C. (3d)146, is also still good law in the Province of British Columbia. Submissions of the Parties on Credibility [79] Mr.

Klein argued that Mr. Doak was a credible witness, that he was cogent, and his evidence was internally consistent. Mr.Murphy, by counterpoint, in his view, was often contradictory in what he said and internally inconsistent. At times, he was evasive. Ishould treat his evidence with caution. Where it differed from that of the accused, I should prefer that of Mr. Doak. If I could notbelieve Doak, but still had a reasonable doubt concerning Crown's case, that was sufficient. [80] I do not intend to repeat all the inconsistencies in Murphy's evidence that Mr.

Klein most carefully set out in his submission forme at some length as I believe I have referred to all of them above in my

summary of his evidence. Mr. Klein argued that insofar asthere were inconsistencies in Murphy's evidence, that they were material ones and not inconsequential. [81] Ms. Ostry for the Crown spent little time in her closing submission addressing the important issue in this case of credibility. She argued that Mr. Doak's closing his eyes as he struck Murphy made no sense. This troublesome evidence, in her view, cast doubt onthe accused's evidence as to what he was trying to do with Murphy in the confrontation in issue.

She said he tried to minimize his actionsand, for example, seemed reluctant to agree that he had, in fact, punched Murphy in the face. Findings on Credibility [82] I find that Mr. Doak was a credible witness when he testified before me. I also agree with Mr. Klein's submissions on Mr.Murphy. I did find him to be evasive at times in testifying. I do find that, taken together, the various inconsistencies in his evidence arematerial and do affect his credibility.

I found at times, and particularly when he was testifying about the alleged assault, he seemed to berecreating what he thought might have occurred rather than accurately recalling it. I accept as truthful his evidence that he was shockedin the fight and, to some extent, remained so afterwards. This condition would have coloured his ability to recall events clearly andaccurately. [83] I find I am in agreement with Mr. Klein's submission and where Mr. Murphy's evidence differs from that of the accused, Iprefer that of the accused. I found Mr. Doak to be an honest witness. I believe him.

Position of the Crown on Count 1 [84] Ms. Ostry describes this case as a classic "he said, he said" case. I observe that a criminal trial is not a contest in suchcircumstances between two witnesses and, if the judge believes one, he cannot then as a result believe the other. Crown, at the end ofthe day, must still prove its case beyond a reasonable doubt. [85] Ms. Ostry agrees that once the accused raises the defence of self-defence as occurred in the case at bar, there is no onus on himto prove it. Rather, the onus remains on the Crown to prove beyond a reasonable doubt that it does not apply.

[86] Sections 34(1) and (2) of the Criminal Code states 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 madeagainst 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 fromthat 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 circumstancesof 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. [87] Crown, therefore, bears the onus of proving that one or more of the s. 34(1) factors does not apply in the circumstances. Sheinvited me to find that the accused was angry when he arrived in the yard on June 17th and had plenty of reasons to be so. When hesuggested to the accused that he had helped the woman the night before because he wanted to "fuck her", this comment was consistentwith his trying to provoke Murphy and it did so.

In other words, Doak, in stating in these words, intended to provoke Murphy. [88] The initial contact by Murphy on Doak did not make Doak stumble. This was a relevant factor in my assessment of whetherDoak's response to Murphy was proportionate or I understood "reasonable in the circumstances," see s. 34(1)(

c) and s. 34(2)(

g) of theCriminal Code of Canada. Six punches were not a reasonable response whether judged objectively or subjectively or both. [89] She invited me to find that Murphy had not fought back or tried to punch Doak after the first contact. While Doak had noobligation at law to retreat, his place of business was a big yard and he had room to do so. He was not defending his property. Murphyhad no weapon. He was older. There was no animus between the two and, therefore, it was not necessary for Doak to punch Murphy sixtimes to get him to stop. [90] Her main point was that the force used by Doak pursuant to s. 34(2)(

g) was far more than required for self-defence in thecircumstances. In the result she submitted, Crown had proven all ingredients in this case where it had an onus to do so beyond areasonable doubt and I should convict the accused of the charge before the court. Position of Defence on Count 1 [91] Mr. Klein argued, and Ms. Ostry agreed, that R. v. Kandola, (BC CA), [1993] B.C.J.

No. 1035 (B.C.C.A.), adecision of Wood J.A., later Wood P.C.J., was, notwithstanding the amendments to the Criminal Code of Canada resulting in s. 34,which was effective in March 2013, still good law in British Columbia and applicable to the case at bar. At paragraphs 22, 23, and 27therein Wood J.A. said this in part: 22 As has already been noted, a successful defence of self-defence provides a justification for what would otherwise be an unlawfulact of assault.

Under s. 34(1), and indeed under all of the self-defence provisions in the Criminal Code, the force applied in self-defenceis justified if the requirements of the statute are met. 23 It is important to note that it is the force itself, and not the consequence of the force used, which is justified if the limitingconditions of the statute are met. The only consequences of the application of force in self-defence, which are specifically mentioned inthe statute, are death and grievous bodily harm.

Those consequences are relevant only to the extent they are intended. ... 27 The second reason which leads me to conclude the trial judge erred in his approach to s. 34(1), is the fact the law has longrecognized the need for a tolerant approach to the objective measurement of proportionate force in genuine self-defence cases. In Brownv. United States (1921), 256 U.S. 335, at p. 343, Holmes, J., noted: Detached reflection cannot be demanded in the presence of an uplifted knife. A similar expression of opinion was voiced by Lord Morris in Palmer v. The Queen (1971), 55 Cr. App. R. 223, at p. 242 of the report:

If there has been attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. The same principle has been adopted and applied by Canadian courts [citations omitted]. [ 92 ] Mr. Klein referred me to the case of R. v.

Levy , 2016 NSCA 45 , a decision of Beveridge J.A. of this court, a case involving self- defence and, as well, s. 34 of the Criminal Code , where this court said this in paragraph 155 to 156 dealing with earlier case law and older now amended Code requirements: 155 These statutory requirements for proportionality were muted somewhat by case law that interpreted these provisions to mean that an accused need not measure with nicety the degree of force used to preserve himself from reasonably perceived death or grievous bodily harm.

Nor was there a strict requirement that an accused run away or otherwise retreat, particularly if the force he or she faced was on their own property [citations omitted]. 156 There is no indication that Parliament intended to change the law in these respects. If anything, the converse.

Imminence of the threatened force, its nature, other means to respond, and the nature and proportionality of the accused's response are now among the nine enumerated (non-exclusive) factors in s. 34(2) that the trier of fact must consider in determining if the Crown has proven beyond a reasonable doubt that the act committed by the accused was not reasonable in the circumstances. [ 93 ] In Levy , at paragraph 153 , the court notes that Parliament has not given direction as to what weight the court should attach to each of the nine factors in s. 34(2) that the trial judge must consider in assessing whether or not Crown has proven that self-defence is not available to the accused in the case before the court. [ 94 ] In short, Mr.

Klein argued that Murphy was the first aggressor, first came at Doak, and that Doak merely defended himself when the bigger man, Murphy, who outweighed Doak by 45 pounds and was three inches taller, kept coming at him and would not stop. I should not attempt to measure, nor was Doak required to, his force to a nicety, but find that it was both subjectively and objectively reasonable in the circumstances. Thus, Doak should be acquitted. Discussion [ 95 ] I will deal with the factors in s. 34(2) I consider to be relevant. Murphy was indeed the first aggressor. He started this whole affair.

But for his excessive overreaction to Doak's sarcastic comment, including moving at Doak with his arms outstretched and fists, this event would never have occurred. I find that to be a certainty. [ 96 ] There is no evidence that Doak knew how important Murphy's training in Reiki massage was to him or his status as a master of this technique. Doak did not know that his comment, however politically incorrect it may have been at the time, could have affected Murphy as deeply as it apparently did. I find it was not made by Doak to provoke or anger Murphy.

It is not a stretch to imagine some men might have taken it as a joke of some sort. [ 97 ] I believe Murphy's evidence that, in essence, it cut him to the core and that he considered it defamatory. I do not find that before the fight started, Doak had any understanding of the significance in Murphy's life of this Reiki massage technique and his status as a Master. [ 98 ] The nature of the force and threat presented by Murphy as he attacked Doak was very serious and significant and it was shortly perceived Doak in this manner. Murphy's use of force on Doak was imminent.

I find he struck him on the shoulders and, in so doing, moved him back and down so that Murphy was over him and Murphy's pickup truck was immediately behind Doak. I find he had neither the time nor ability to retreat anywhere. I find Doak had no other means to respond to Murphy other than to attempt to get him to stop coming after him. No one else was around. Murphy essentially had him cornered. [ 99 ] As to (c), Doak did not start the physical confrontation. No weapon was used. Both men had worked in the logging industry. Doak was younger, but Murphy was bigger and the aggressor.

It would be quite wrong, in my view, to describe Murphy as merely a senior citizen in this case. There was no historical animus between these two men or any negative interactions or communications between them and no provocation for what Murphy did. [ 100 ] Very importantly, I find in all the circumstances of this case, and bearing in mind the above factors in R. v. Kandola , paragraphs 26 and 27 , that the nature of Doak's response was proportional to Murphy's aggression and force. I find on all the evidence Doak must have subjectively held this view.

This scuffle had two segments and only continued when Murphy did not stop his attack with three further blows from Doak. [ 101 ] I am also of the view that measured objectively that a reasonable person in the place of the accused facing the circumstances he did would have felt that a similar reaction to that of the accused was reasonable and proportionate to the aggression he faced. [ 102 ] To conclude, I find that Doak believed on reasonable grounds that force was being used against him by Murphy, that he did what he did in striking Murphy to defend and protect himself from Murphy's first use of force, and that his acts in the circumstances were reasonable.

Conclusion [ 103 ] I find that Crown has failed to prove beyond a reasonable doubt that self-defence is not available to Mr. Doak on the facts of the case at bar. His actions on June 17th, 2015, were, therefore, justified in the circumstances and I dismiss Count 1. The Honourable Judge B. Dyer Provincial Court of British Columbia