R. v. Greensmyth Date:, 2017 BCPC 149

Citation: R. v. Greensmyth Date: 20170517 2017 BCPC 149 File No: 62638-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER GERARD GREENSMYTH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: L. Ostry Counsel for the Defendant: D. Carp and C. Paquette Place of Hearing: North Vancouver , B.C. Dates of Hearing: September 19, 20, 2016; January 30, 31, 2017 Date of Judgment: May 17, 2017

INTRODUCTION [ 1 ] The accused, Peter Greensmyth, is charged with assault causing bodily harm of Daniel Kennedy on September 19 th , 2015, contrary to s. 267 (

b) of the Criminal Code of Canada ( “ Code ”) . [ 2 ] The alleged assault took place at the Eagles Club at 170 West 3rd Street in North Vancouver, at an event organized by Mr. Kennedy to watch the Irish team play the Canadian team at the Rugby World Cup. Mr. Greensmyth attended the event apparently at the invitation of Mr. Kennedy, a boyhood friend from whom he had recently grown more distant . [ 3 ] It is common ground between the Crown and defence that, at the end of the event and after an argument, Mr. Greensmyth struck Mr.

Kennedy once with his fist, causing him to fall to the ground, and then when he was down, applied at least some force to Mr. Kennedy with his foot. There are thus two components to the single count charged – a punch and what Crown describes as a kick or kicks. [ 4 ] Mr. Kennedy sustained a head injury that Mr. Greensmyth admits was caused by him and was more than merely transient or trifling in nature, sufficient to constitute bodily harm as defined by s. 2 of the Code . [ 5 ] Mr.

Greensmyth thus admits the essential elements of the offence with which he is charged. [ 6 ] The primary issue before this court is whether the assault was justified under the self-defence provisions of s. 34 of the Code . A secondary issue that arises is whether, if only part of the assault was justified and part was not, e.g., the kick or kicks, was bodily harm caused by the portion of the assault that was not justified? [ 7 ] Both the complainant, Mr. Kennedy, and the accused, Mr. Greensmyth, testified, as did various other civilian witnesses and the investigating officer, Constable Gill.

I will address the Crown and defence evidence in turn, and thereafter the applicable law and my findings on credibility and responsibility. CROWN EVIDENCE A. The testimony of Daniel Kennedy [ 8 ] Mr. Kennedy, 31 years old, was born and raised in Ireland. He came to Canada in 2008 and is a permanent resident. He is one of the owners of a partnership employing approximately 30 people in the field of excavation, demolition, and construction. He has no relevant criminal history. [ 9 ] Mr. Kennedy and the accused Mr.

Greensmyth have known each other since their early teenage years in Ireland, and for much of their lives were very close. Mr. Greensmyth came to Canada slightly after Mr. Kennedy, and when he first arrived, stayed with Mr. Kennedy and his wife, Joanne Kennedy, for a short time, perhaps as long as a few months. Mr. Greensmyth also stayed with them briefly in 2010 or 2011 while he was “down on his luck”, and again around 2012 after he broke up with a girlfriend. Around 2009 Mr. Kennedy introduced Mr. Greensmyth to his current employer in Canada, with whom Mr. Kennedy also worked at that time. [ 10 ] In Mr.

Kennedy’s testimony, their relationship had grown more distant in the months prior to September 2015. Mr. Greensmyth had moved in with his girlfriend, got engaged, and then married, and there was social tension between them and their spouses. In various parties’ testimony, it emerged that Mr. Kennedy and perhaps especially Mrs. Kennedy did not care for Mr. Greensmyth’s wife, and Mr. Greensmyth’s wife did not care for Mr. and Mrs. Kennedy. By the time of the offence and for at least the few months prior, Mr. Greensmyth and Mr. Kennedy no longer spent much time together socially. [ 11 ] For Mr.

Kennedy the sequence of events that led to his alleged assault the morning of September 19th began the night before, when he attended a charitable dinner, a “lobster-fest”, with his wife at the same venue, the Eagles Club. His wife went home around midnight, but he and a few other men, including the Crown witnesses Peter Ruffalls and Sam Fresi, stayed overnight to clean up and prepare for a breakfast they had organized to watch the Ireland/Canada Rugby World Cup match the next morning. Mr.

Kennedy did not sleep the night of September 18th. [ 12 ] On the morning of September 19 th , guests, around 80 people in total, began to arrive for the breakfast at 6:00 a.m. The match started at 6:30 a.m. Mr. Greensmyth, who was invited though Mr. Kennedy could not recall if it was him or another organizer who invited him, arrived late, sometime between 6:40 and 7:00 a.m. He brought a co-worker, the defence witness Daniel Schnick, who was also invited and who Mr. Kennedy knew slightly. When Mr. Kennedy was finished with his duties assisting with the meal, he took a seat at the same table as Mr.

Greensmyth and Mr. Schnick, next to Mr. Greensmyth. Breakfast and the Ireland/Canada match passed uneventfully. [ 13 ] Mr. Kennedy testified that he was intoxicated – he said he had had perhaps six ciders over dinner at the lobster-fest, one overnight while cleaning and preparing, and one more with breakfast. He said he had also consumed a small amount of cocaine earlier in the evening. When asked to rate his intoxication at the time of the incident on a scale of 1 to 10, he put it at 4. Mr. Ruffalls and Mr. Fresi had also consumed a significant amount of alcohol over the course of the night and the morning. Mr.

Greensmyth and Mr. Schnick, who had just arrived, appeared to Mr. Kennedy to be sober but he recalled each had at least one drink with breakfast, and in Mr. Greensmyth’s case, he thought perhaps more than one. [ 14 ] Mr. Greensmyth and Mr. Kennedy ate breakfast together and watched the remainder of the match. In Mr. Kennedy’s testimony there was nothing unusual about their conversation or interactions until after the game had ended. He said that the situation began to deteriorate after someone, not him, made a dismissive comment to the effect that they were surprised that Mr.

Greensmyth had been allowed out, implying that his wife controlled his behavior. Mr. Kennedy then raised the subject of why they were no longer close friends, suggesting that it was due to the influence of Mr. Greensmyth’s wife. The conversation then grew more strained, and eventually

heated. [ 15 ] The venue had largely emptied out and most attendees had left, and only the accused, the complainant, Mr. Ruffalls, Mr. Fresi, and Mr. Schnick remained at their table. Over time, the conversation between Mr. Greensmyth and Mr. Kennedy grew less friendly. Mr. Fresi and Mr. Schnick left to smoke a cigarette outside. Mr. Ruffalls remained sitting at the table, but was absorbed in the next rugby match on the television and was not involved in the conversation between Mr. Greensmyth and Mr. Kennedy. [ 16 ] Mr. Kennedy testified that he did not recall precisely what they were discussing when Mr.

Greensmyth began pounding his fist on the table. Mr. Greensmyth then asked in aggressive tone if he wanted to go outside, which Mr. Kennedy understood to be a challenge to go fight. Mr. Kennedy said he replied with words to the effect of “Sure, let’s do it.” [ 17 ] Due to his long experience with Mr. Greensmyth, Mr. Kennedy testified that he thought the challenge was a bluff and that Mr. Greensmyth would back down as he apparently had done on a number of occasions in the past. [ 18 ] Mr. Greensmyth got up and walked towards the door, and Mr. Kennedy testified that he stood up and followed.

He said that he did not utter any threats nor make any threatening gestures at the time. [ 19 ] He had taken a few steps when Mr. Greensmyth turned around suddenly and punched him in the face, connecting with his closed right fist against Mr. Kennedy’s left lower jaw and knocking him to the ground. This was described by Crown counsel as a “sucker punch” – one that the recipient is not expecting. [ 20 ] Mr. Kennedy was unable to testify clearly as to what precisely happened in the seconds that followed.

He did not clearly recall hitting the floor, and though he did not lose consciousness, he described himself as dazed. While on the floor, he said he felt three or four impacts, one or two on the right side of his face and top of his head in quick succession causing him to see flashes of light and his vision to blur, and after a short pause, one or two more impacts to his back and ribs on his left side. He was unable to identify the source of any of these impacts.

All of this happened very quickly, in perhaps four or five seconds total. [ 21 ] He got to his feet shortly afterwards, though he testified that in his dazed state it could have been as little as ten seconds or as much as two minutes later. When he got to his feet, he could not see Mr. Greensmyth. He ran out the front door to look for him, stumbling and scraping his knee as he went. At this point he was angry and perhaps, he said, looking to retaliate, though he expressed uncertainty at why exactly he went after Mr. Greensmyth. [ 22 ] On 3rd Street, outside the venue, he saw Mr.

Fresi who had been outside smoking. He did not see Mr. Greensmyth or Mr. Schnick initially, but shortly caught sight of Mr. Greensmyth in his truck just as he pulled out of his parking spot and drove away. [ 23 ] Mr. Kennedy testified that he called Mr. Greensmyth on his cell phone at that point, though he could not remember if Mr. Greensmyth picked up or if they had a conversation, nor how many times he tried to call him. He also called Mr. Greensmyth’s wife and told her to tell her “wife” (insinuating that he considered Mr. Greensmyth a woman) to call him.

He cleaned himself up a bit in the washroom, and soon afterwards, his own wife arrived, as they had arranged the night before, to pick him up. [ 24 ] His wife drove him home and called the police. Constable Gill arrived at his home and he made a statement.

He smoked a cigarette and spoke with his wife for a few minutes about what had happened. [ 25 ] In his testimony there was then a gap in his memory where he has little recollection until sometime later being in a stretcher and being taken to Lion’s Gate Hospital Emergency, where he was admitted and ended up spending seven days in the Neurological Special Care Unit. [ 26 ] On cross-examination, Mr. Kennedy agreed that his memory as to the precise details of the moments leading up to the assault was somewhat unclear.

Specifically there was a slight discrepancy between his statement to police shortly after the incident and his trial testimony concerning how much time transpired and how many steps he and Mr. Greensmyth took after standing up before Mr. Greensmyth struck him. In his police statement, which he agreed was truthful, he said that he was not even sure he had fully risen from his chair when he was hit, while in direct examination he said that he thought they walked a few steps first. Mr. Kennedy said he did not think his statements at trial and to the police were meaningfully inconsistent.

I observe that when he gave his statement to the police, the effects of the trauma that he had suffered to his body including his head were still very recent. [ 27 ] On cross- and re-examination Mr. Kennedy agreed that it was possible that he hit his head on a nearby stack of chairs as he fell from the punch, though he maintained that the three to four impacts he reported feeling were after he was on the ground. Those three or four impacts were not part of the original statement he made to police. B. The testimony of Peter Ruffalls [ 28 ] Mr. Ruffalls is a friend of Mr. Kennedy’s, and knows Mr.

Greensmyth slightly through Mr. Kennedy and considers him a friend as well. He was present at the Eagle’s Club both overnight with Mr. Kennedy and through the breakfast event, and is the only person who appears to have been present to witness the assault. [ 29 ] Like Mr. Kennedy, Mr. Ruffalls is a member of the Eagle’s Club. He has known Mr. Kennedy for four or five years, and seen him drunk many times. He did not agree, on cross-examination, that Mr.

Kennedy was a “bully” or that he was particularly verbally abusive, but did say that in their circle of friends it is common to insult each other, albeit not in a mean way. He said he has never known Mr. Kennedy to be violent. (Vol. 2 at 89) [ 30 ] Mr. Ruffalls’ version of the events leading up to the incident was generally the same as Mr. Kennedy’s. He had eight to ten pints of Guinness beer over the course of the lobster-fest the night before, and described himself at its conclusion as “buzzed but not wasted”, as he knew that he needed to help out with the rugby breakfast the next morning.

He had an additional drink or maybe two overnight and another pint with breakfast. He observed Mr. Kennedy drinking cider but did not know how much he had in total. He did

not notice anybody taking cocaine. [ 31 ] After the Ireland/Canada rugby game had finished and the event was starting to break up, while Mr. Greensmyth and Mr. Kennedy were having an increasingly acrimonious conversation and Mr. Schnick and Mr. Fresi had gone outside to have a cigarette, Mr. Ruffalls stayed seated at the table to watch the next rugby game in the series, which was between Japan and South Africa. [ 32 ] Mr. Ruffalls was seated towards the opposite side of a large circular table from Mr. Greensmyth and Mr. Kennedy, perhaps two or three metres away. Mr.

Kennedy was almost directly across from him, though to his left clockwise around the table. There was nobody seated between them. Mr. Greensmyth was seated to Mr. Kennedy’s left. Before they left, Mr. Fresi had been seated next to Mr. Ruffalls on his right, counter-clockwise, then Mr. Schnick (who he did not know). In other words, at the large round table Mr. Ruffalls was sitting between 6 and 7 o’clock, Mr. Kennedy at 10:30, Mr. Greensmyth at 11:30, Mr. Fresi at about 5 o’clock and Mr. Schnick at about 4 o’clock. Mr.

Ruffalls was facing the screen on which the match was playing, with his unobstructed sightline to it at about 1 o’clock. Mr. Greensmyth and Mr. Kennedy would therefore have been at the left edge of his peripheral vision as he watched the match. [ 33 ] Mr. Ruffalls could tell that Mr. Kennedy and Mr. Greensmyth were talking but he couldn’t hear them clearly over the sound of the speakers, and was in any case absorbed in the rugby game.

The speakers were to the left of the screen, not far from him though he did not provide an estimate of the distance in his testimony, and he said the volume of the match was quite loud. He also noted that he sometimes has difficulty understanding the two men when they talk because they both have quite strong Irish accents, especially Mr. Greensmyth. [ 34 ] In direct examination Mr. Ruffalls said that he noticed when Mr. Kennedy and Mr.

Greensmyth stood up and started to walk south out of the bar, one following the other from left to right from where he was seated, briefly passing between him and the screen on which he was watching rugby. He was not paying them much attention at that point, had not noticed physical contact or anything unusual between them, and was not certain which of them was walking in front of the other. He did not testify to how many steps he saw them take.

Based on his description of the venue, it would not have had to be very many to pass between him and the screen. [ 35 ] His attention was drawn back to them almost immediately, however, when he thought he saw some sort of “wrestling move” between the two men, and Mr. Kennedy stumbled or fell backwards into his field of vision, moving this time from right to left from where Mr. Ruffalls was seated. He fell such that Mr. Ruffalls could no longer see him below the edge of the table at which they had all been sitting, and where he still was. Mr. Ruffalls testified that he saw Mr. Greensmyth “follow” Mr.

Kennedy as he fell so as to stand over him. He saw Mr. Greensmyth point down at Mr. Kennedy and say something that he could not hear. And he saw Mr. Greensmyth make two hip movements in quick succession, though he could not see from his vantage point what the accused was doing with his legs or feet. [ 36 ] On cross-examination, Mr. Ruffalls maintained that he did not see what transpired between the two to cause Mr. Kennedy to fall. Though he thought he saw some sort of wrestling move, he could not say who initiated the contact, nor what precise sort of contact it was, but only that Mr.

Kennedy fell to the ground. [ 37 ] He also did not notice Mr. Greensmyth pound his fist on the table, as Mr. Kennedy testified he did, and thought he would have noticed this if he had. [ 38 ] Mr. Ruffalls testified that he got to his feet and came around the table to see what had happened. As he did so, he said that Mr. Greensmyth walked quickly past him, west towards the club’s kitchen. Mr. Greensmyth did not say anything to him as he left and Mr. Ruffalls did not see where he went because he was focused on finding out what had happened to Mr. Kennedy. [ 39 ] All this happened very quickly, in Mr.

Ruffalls’ testimony: from when Mr. Kennedy fell to the floor to when Mr. Greensmyth walked past him only two seconds, or perhaps even less, had elapsed. [ 40 ] He found Mr. Kennedy lying on his back on the carpeted floor, near a stack of chairs that had just been gathered up after the breakfast event. Mr. Kennedy was already getting to his feet as Mr. Ruffalls reached him. At that point Mr. Ruffalls did not see any injuries. Mr. Kennedy said to him words to the effect that he’d been punched or hit, and after he got to his feet, immediately started walking in the same direction as Mr.

Greensmyth had, west towards the kitchen. [ 41 ] Mr. Ruffalls observed that Mr. Kennedy went into the kitchen, where he slipped once and fell to one knee, and out the club’s back door. Mr. Ruffalls followed him, and passed Mr. Fresi who was on his way back into the building from the back parking lot. Mr. Fresi asked what had happened. Mr. Ruffalls told him that he did not know. [ 42 ] There was nobody in the parking lot behind the club so Mr. Ruffalls and Mr. Kennedy turned right and came around the building to where it fronted onto 3rd Street. Mr. Ruffalls saw a black truck drive by.

He testified that very little time had passed since the assault, with each event following immediately on the last. [ 43 ] Mr. Ruffalls saw Mr. Kennedy made a phone call while they were standing on the sidewalk, and Mr. Ruffalls believed it was to Mr. Greensmyth because Mr. Kennedy spoke angrily and with profanities. He could not hear if there was anybody on the other end of the call. Mr. Ruffalls noted then that Mr. Kennedy had a cut on the side of his head. He and Mr. Kennedy may have talked a little bit more after that but Mr. Kennedy was “in a rage” and “calling people all sorts of names.” Mr.

Kennedy may have told him at that point that he had been “sucker-punched” but he could not say for certain. [ 44 ] Mr. Kennedy’s wife arrived while they were still outside the club on a pre-arranged errand. She took Mr. Kennedy home. Mr. Ruffalls returned inside the club to help clean up. It was only later that day that he heard Mr. Kennedy had been hospitalized. C. Other Crown evidence [ 45 ] Joanne Kennedy , Mr. Kennedy’s wife, testified to the relationship between Mr.

Greensmyth and her husband, agreeing with the general characterization of them as close and long-term friends who had become estranged, especially in the few months leading up

to the assault, but who had also grown gradually more distant over the years prior. [ 46 ] Mrs. Kennedy testified to the seriousness of Mr. Kennedy’s head injury, which is not contested. She did not notice any bruises on Mr. Kennedy’s ribs while helping him shower in the days following the assault. [ 47 ] Samuel Fresi is a labourer who has worked in the construction industry with both Mr. Kennedy and Mr. Greensmyth since 2014. He is also a member of the Eagle’s Club, and currently works for Mr. Kennedy’s partnership.

He was present at the club overnight and the morning of the offence, and gave testimony agreeing generally with other witnesses’ narrative of the lobster-fest and the breakfast. Mr. Fresi was outside smoking when the assault took place. [ 48 ] On the question of whether Mr. Kennedy was a “mean, aggressive drunk”, Mr. Fresi disagreed, but said that in their circle of friends it was common to “talk to each other in a very different manner”. [ 49 ] Constable Mona Gill of the North Vancouver RCMP was the investigating officer. She saw Mr.

Kennedy in his home shortly after the assault, when she said he seemed intoxicated and dazed, and she recommended he seek medical attention. Later that day after he was hospitalized, she went to see him at the hospital. She was concerned at that point that he was not lucid enough to make a police statement, and so came back to take an official statement from him at Lion’s Gate Hospital two days later on Monday, September 21st. [ 50 ] She met Mr. Greensmyth the day after the assault, Sunday, September 20th, and took a voluntary statement from him. Mr. Greensmyth told her that Mr.

Kennedy “came at me” and he was “concerned for my safety” so he “struck him” once with a closed fist so that he fell down, then “kicked him in the back twice” and then left. [ 51 ] Constable Gill also took a statement from Mr.

Ruffalls. [ 52 ] In investigating the incident, Constable Gill had a sense that the various parties involved were covering up their own alcohol consumption, in particular as the Eagle’s Club would have been in contravention of BC liquor laws if it had served drinks after 2:00 a.m. [ 53 ] Constable Gill did not attend at the scene of the alleged assault to take pictures of the eating area, tables if any, and screen and speaker arrangements. There is no evidence these had been changed or left as they were at the time of the alleged assault. DEFENCE EVIDENCE A. The testimony of Peter Greensmyth [ 54 ] Mr.

Greensmyth, the accused, testified in his own defence. [ 55 ] He is 32 years old, was born in Ireland, and has lived in Canada since 2009. He resides in Burnaby with his wife. He is a temporary foreign worker, and is a project manager in the construction industry working in North Vancouver. He has no relevant criminal history. [ 56 ] He agreed with Mr. Kennedy’s characterization of their relationship as “like family” going back to their early teens in Ireland, but described a longer period of estrangement. Mr.

Greensmyth’s testimony was that their relationship had begun to decay over professional differences, in particular when Mr. Greensmyth stopped subcontracting Mr. Kennedy’s excavation partnership for jobs he managed around 2014 due to what he saw as sloppy and unreliable work. He also described social friction since they had moved to Canada, including a previous girlfriend that Mr. and Mrs. Kennedy did not approve of, and acrimony over Mr. Greensmyth’s decision to have another friend, and not Mr. Kennedy, drive Mr. Greensmyth and his wife to their wedding. [ 57 ] Mr. Greensmyth said Mr.

Kennedy could be verbally abusive and a “bully”. He testified that belittling comments were a frequent feature of social interaction with Mr. Kennedy, especially regarding Mr. Greensmyth’s relationship with his wife, which Mr. Kennedy would characterize as his being “pussy-whipped”. I note that no other witness described Mr. Kennedy as a bully save Mr. Greensmyth’s friend and co-worker Mr. Schnick, who described witnessing bullying behavior on Mr. Kennedy’s

part in the past. [ 58 ] Mr. Kennedy invited him to the Ireland/Canada Rugby World Cup breakfast and he decided to attend. He said he had no premonition of any trouble at the event, and in fact was looking forward to seeing Mr. Kennedy as he thought the breakfast might present an opportunity to repair their relationship. [ 59 ] On the morning of the assault, Mr. Greensmyth testified that he arrived slightly late with Mr. Schnick, the other defence witness. The match had already started. [ 60 ] Mr. Greensmyth testified that he immediately noticed that Mr.

Kennedy was quite intoxicated – he was slurring his words and was very red in the face. No other witness described Mr. Kennedy in this extreme fashion. Mr. Greensmyth had seen him in this sort of condition many times over the years of their friendship. As part of his testimony about how he perceived Mr. Kennedy that morning, Mr. Greensmyth testified that Mr. Kennedy said he had been drinking all night and taking cocaine to stay awake. [ 61 ] Mr. Greensmyth said that Mr. Kennedy drank between four and five pints of cider over the course of breakfast. No other witness described Mr.

Kennedy drinking such a large amount over breakfast, though it is common to all witnesses that Mr. Kennedy was in fact drinking. He said he also saw Mr. Kennedy go into the bathroom with Mr. Fresi up to three times between around 7:00 a.m. and 9:00 a.m., he suspected to do cocaine. I note that no other witness reported these movements. Mr. Greensmyth said that Mr. Kennedy appeared to grow more intoxicated as the morning passed. [ 62 ] As for Mr.

Greensmyth himself, he testified that he had only the one pint of cider that came with his ticket to the breakfast event, although he testified somewhat unusually that he also bought a round of drinks for the table, i.e., for everyone but himself. He said that he was completely sober through the events of the morning.

[ 63 ] Mr. Greensmyth agreed with other witnesses as to the layout of the club and where every person was sitting in relation to the other - he and Mr. Kennedy were sitting next to each other, Mr. Kennedy to Mr. Greensmyth’s right, at the east end of a large round table, closest to the screens. Mr. Schnick was to Mr. Greensmyth’s left, then Mr. Fresi, then Mr. Ruffalls, who was sitting approximately across the table from Mr. Kennedy. There was nobody sitting between Mr. Ruffalls and Mr. Kennedy. [ 64 ] Nothing unusual occurred in Mr.

Greensmyth’s testimony until after the Ireland/Canada rugby game ended around 8:00 a.m. By then he had had what he called an ordinary light-hearted conversation with Mr. Kennedy. A short time after the game ended, Mr. Kennedy got up to go the bathroom; Mr. Greensmyth suspected to take more cocaine. Around the same time, Mr. Greensmyth helped tidy up the venue by stacking some chairs. [ 65 ] Mr. Greensmyth testified that after Mr. Kennedy got back from this last bathroom trip, his demeanour had changed: he seemed more intoxicated and more aggressive.

At this point, the tenor of the conversation apparently changed - Mr. Kennedy began insulting the men at the table, for example, making fun of Mr. Schnick’s hat. [ 66 ] Mr. Greensmyth testified that the conversation deteriorated further when Mr. Kennedy turned his attention to him, calling Mr. Greensmyth an “asshole” for hiring “a dirty Hindu” to do his excavation work instead of Mr. Kennedy’s firm. When Mr. Greensmyth tried to change the subject, he said that Mr. Kennedy brought up the topic of the friend Mr. Greensmyth had asked to drive him and his wife to their wedding, rather than Mr. Kennedy, calling Mr.

Greensmyth words to the effect of “gay for [his] faggot boyfriend”. Mr. Kennedy also brought up how Mr. Greensmyth never came by his house anymore, saying that it was because he was his wife’s “bitch”, and expressed surprise that she had given Mr. Greensmyth permission to attend the breakfast event at all. [ 67 ] Throughout this abuse, Mr. Greensmyth testified, Mr. Kennedy was leaning towards him and clenching and unclenching his fists. He testified that he felt hurt by these comments from someone he had once considered a close friend, and that he was “intimidated” and apprehensive that there would be violence.

Mr. Kennedy is slightly taller than him and about 30 pounds heavier, Mr. Kennedy being about 6’1” and weighing about 220 pounds, and Mr. Greensmyth did not want to get into a physical confrontation with him. On cross-examination he denied being angered by the conversation, stating again that his primary emotions were hurt and intimidation. It is unclear to me why Mr. Greensmyth in the event Mr. Kennedy was being so nasty and confrontational with him did not just get up and leave if he had any of the various feelings he described. [ 68 ] Finally, Mr. Greensmyth said, Mr.

Kennedy told him to “get the fuck out” or words to that effect. Mr. Greensmyth said that he stood up and started to walk away, but turned around after about two steps and said either “Fuck you, Kennedy” or “You’re a piece of shit, Kennedy.” It was put to Mr. Greensmyth in cross-examination that this would not seem to be the kind of rejoinder a man would make who felt, intimidated, hurt and apprehensive about the person at whom the comment was directed. Mr. Greensmyth described it as a spontaneous utterance. In his closing argument, Mr. Karp made the submission that it was consistent with Mr.

Greensmyth’s feelings of hurt. [ 69 ] Before he had even finished this sentence, Mr. Greensmyth said, Mr. Kennedy “leapt” out of his chair (Mr. Greensmyth at several points described his action to be “like a sprinter out of the starting block”) and came towards Mr. Kennedy at a “brisk walk”, looking angry, teeth clenched. As they started out sitting next to each other and Mr. Greensmyth said he had taken only two steps himself, he felt he was not then far from Mr. Kennedy, maybe as little as three or four feet. [ 70 ] Mr. Greensmyth initially testified that at this point he was “100% certain” that Mr.

Kennedy was going to attack him. He expanded on this testimony later in both direct and in cross-examination, explaining that he had witnessed Mr. Kennedy instigate physical altercations at least five times in the years he had known him, including: an instance when Kennedy, had gotten into a fight with Mr. Greensmyth’s boss; times that Mr. Kennedy had punched other guys in bars for mouthing off at him; an incident where Mr. Kennedy had stomped in a younger co-worker’s windshield on a camping trip; and an incident where Mrs. Kennedy apparently reported her husband to the police for domestic violence.

I note that none of these anecdotes were substantiated in this proceeding by any other evidence - Mr. Kennedy and Mrs. Kennedy both denied the domestic violence allegation in their testimony, and Mr. Kennedy testified that the incident with the car windshield was an accident or misunderstanding. However it was Mr. Greensmyth’s testimony that this past experience with acts of violence carried out by Mr. Kennedy is what informed his belief on September 19 that “something bad was going to happen”. On cross-examination he testified that he and Mr. Kennedy had never fought physically in the past. He agreed that Mr.

Kennedy did not say anything threatening to him as he advanced. It was on the basis of his knowledge of Mr. Kennedy and his familiarity with Mr. Kennedy’s body language that he was certain he was being attacked. [ 71 ] Feeling thus threatened, Mr. Greensmyth said that he struck Mr. Kennedy once in his jaw with his closed right fist. Mr. Greensmyth said that Mr. Kennedy fell backwards, striking his head once on the stacked chairs that were nearby and then again on the floor. He landed on his side and rolled partially to his stomach. Mr. Greensmyth said that Mr.

Kennedy then got his hands and one foot underneath him and looked ready to get to his feet. [ 72 ] Mr. Greensmyth testified that in order to give himself time to flee, he pushed Mr. Kennedy back to the ground and on to his back with his “extended leg”, shoving him once or twice with his foot. [ 73 ] On both direct and cross-examination Mr. Greensmyth was asked why he had described this “shove” as a “kick” in his statement to Constable Gill.

He explained that he described the incident only very vaguely in his statement to the police, as he did not realize that anything serious was to come of it – at that point, the day after the assault, he said he did not know that Mr. Kennedy’s injuries were serious. He added that he would not kick someone who had been “like a brother” to him. I observe that it is odd in light of this evidence that he would nonetheless punch such a person in the face with such force as to knock him down. [ 74 ] After shoving Mr. Kennedy with his foot, Mr.

Greensmyth testified that he left the club through the kitchen out into the back parking lot. He told Mr. Schnick briefly what had happened, and they agreed that they should leave right away. They went together to Mr. Greensmyth’s truck on 3rd Street and saw Mr. Kennedy come out of the building before or as they drove away. His face was “beet red” and he looked very angry. Mr. Greensmyth said that he is certain that if he had gotten out of the car to confront Mr. Kennedy at that point he would have been attacked.

[ 75 ] As they drove away, Mr. Greensmyth testified that Mr. Kennedy immediately phoned him. He answered his truck’s Bluetooth speakerphone and Mr. Kennedy let loose a tirade of abuse. He testified that Mr. Kennedy called him back multiple times after that, as well as calling his wife, and sending him threatening text messages, printouts of which were entered into evidence. [ 76 ] Mr. Greensmyth said that he did not contact the police about the incident because he believed it was done, and that because he had only defended himself, he had done nothing wrong.

He was contacted by Constable Gill at about 5:00 p.m. on the day of the assault, and arranged to make his statement the following day. [ 77 ] Shortly before making his statement to the police the next day, Mr. Greensmyth sent Mr. Kennedy an email reading “For what it’s worth, I am sorry for what happened yesterday. Things shouldn’t have escalated like they did, especially since we’ve known each other for so many years. I hope that we can put this behind us someday.” On cross-examination Mr. Greensmyth stipulated that he did not intend by this to take responsibility for the incident, merely to “clear the air”. Mr.

Kennedy did not reply to the email, and at the time of trial, Mr. Greensmyth said that he and Mr. Kennedy have had no contact since the alleged assault. B. The testimony of Daniel Schnick [ 78 ] Daniel Schnick is a co-worker of Mr. Greensmyth’s and a former co-worker of Mr. Kennedy’s. He has known Mr. Kennedy since 2007 or 2008, and Mr. Greensmyth for about five years. He said that he and Mr. Greensmyth are quite close friends, and they and their spouses regularly socialize outside of work. Though he did not say so directly it can be inferred from his testimony and I do infer that he does not like Mr. Kennedy.

He accompanied Mr. Greensmyth to the rugby breakfast, but was outside the club smoking at the time of the assault. [ 79 ] Mr. Schnick’s narrative of the morning of September 19th accords in most ways with that of the other witnesses. He and Mr. Greensmyth arrived slightly late, after the match had begun. He said that when they arrived, Mr. Kennedy seemed drunk and looked tired. Mr. Schnick did not mention noticing any trips to the bathroom by Mr. Kennedy to take cocaine. However he did note that Mr. Kennedy had multiple drinks over the course of breakfast. [ 80 ] Mr.

Schnick’s testimony as to his impression of the tenor and content of the conversation was more similar to Mr. Greensmyth’s than that of the Crown witnesses. After the Ireland/Canada match he said that Mr. Kennedy was “jabbing” at folks, and at Mr. Greensmyth especially. Specifically Mr. Schnick said that Mr. Kennedy teased him about his hat; Mr. Kennedy harshly criticized Mr. Greensmyth for hiring a rival contractor, “those fucking Hindu cunts”, instead of Mr. Kennedy’s firm; Mr. Kennedy complained to Mr. Greensmyth that his wife had not accepted Mrs. Kennedy’s friend request on Facebook; and Mr.

Kennedy criticized Mr. Greensmyth for letting “that faggot Josh Ford” act as the driver at his wedding. [ 81 ] Throughout these insults Mr. Schnick testified that Mr. Greensmyth showed very little reaction. In cross-examination, Mr. Schnick said that this sort of taunting was Mr. Kennedy’s “usual schtick”: that he would frequently make demeaning comments about race, taunt others for their weakness, and brag about his own toughness. [ 82 ] After a while Mr. Schnick said that he grew tired of this tenor of conversation and left the club to smoke a cigarette with Mr. Fresi.

The alleged assault happened while he was out of the room. [ 83 ] Mr. Schnick said that he had been outside the club for about five minutes when Mr. Greensmyth came outside in a very agitated state and told him, “Dan and I just had a fight. I knocked him out.” Mr Schnick said that he asked what happened, and Mr. Greensmyth said “He came at me.” This is consistent with Mr. Schnick’s statement to the police in July of 2016, almost a year after the offence - Mr. Schnick told Constable Gill that when Mr. Greensmyth came out of the club he told him that “Dan [Kennedy] got up and went at” him so he, Mr.

Greensmyth, defended himself. [ 84 ] Mr. Schnick then said that they should go, to which Mr. Greensmyth agreed and they went to Mr. Greensmyth’s truck. All told he said that less than 30 seconds passed between when Mr. Greensmyth came out of the club and they started walking towards his truck. [ 85 ] As they left they saw Mr. Kennedy come out of the club and come towards them “in a state of rage”. Mr. Schnick noticed that Mr. Kennedy appeared to have an injured forehead. [ 86 ] Mr. Greensmyth pulled out and drove away without any further confrontation with Mr. Kennedy.

There was a slight inconsistency that I do not consider important between Mr. Schnick’s recollection at the time of trial and his statement to the police on the question of when Mr. Kennedy came out of the club and when they saw him. [ 87 ] Mr. Schnick said that he thought Mr. Kennedy looked “violent and unpredictable” as they were leaving. In their hurry to leave he had left his coat and keys behind in the club, but Mr. Schnick ended up waiting until later in the evening to go back to collect them, as he was concerned about encountering Mr. Kennedy again.

ANALYSIS [ 88 ] The sole issue before me to be determined is whether Mr. Greensmyth acted reasonably in self-defence as defined by s. 34 of the Code when he applied force to Mr. Kennedy with his punch initially and later his alleged kicks. [ 89 ] The parties agree that as Mr. Greensmyth has raised self-defence as a justification for his actions, the onus is on the Crown to prove beyond a reasonable doubt that it does not apply. Thus if I have a reasonable doubt concerning this defence as it applies to the facts before me said to be the components of the assault, I must return a verdict of not guilty. A.

Credibility [ 90 ] In order to make findings of fact supporting or disproving self-defence in this matter I must rely almost exclusively on the statements and testimony of the accused, the complainant, and the civilian witnesses, in particular Mr. Ruffalls who was the only witness

present for the assault. Any determinations of credibility I make will therefore be crucial to the ultimate disposition of this matter. [91] One helpful decision on this issue is R. v.

Parent, 2000 BCPC 11, a decision of her Honour Judge Ann Rounthwaite of thisCourt where she dealt with the credibility of witnesses generally and how a trial judge can assess it, at paras 4 to 5 of her reasons, whereshe wrote: [4] In assessing credibility, courts have recognized a number of factors as helpful. [5] These include: 1. the witness' ability to observe the events, record them in memory, recall and describe them accurately. 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? 4. the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful. 5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? 6. motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused person toavoid conviction would place an accused at an unfair disadvantage.

As a result, I do not consider that possible motive when assessing anaccused's testimony. 7. the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? Inassessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual andcultural factors, which may affect demeanour.

Because of the danger of misinterpreting demeanour, I would not rely on this factor alone. [92] In para. 9 of her reasons, Her Honour Judge Rounthwaite used the term “ring of truth” as a different way of expressing the pointin number 5 of the list above, the sense of the witness’ evidence. [93] A foundational case on this same point from our British Columbia Court of Appeal is Faryna v. Chorny (1952), (BC CA), 2 DLR 354 (“Faryna”), albeit in the context of credibility in civil actions.

There is a lower and different burden of proofin such cases as compared to criminal cases, but nevertheless Faryna is often referred to as containing a guiding principle for judges inassessing credibility in criminal cases.

This case encourages trial judges not to rely too strongly on the demeanour of a witness or thefact that his or her evidence remains uncontradicted, but on whether the evidence of the witness is "consistent with the probabilitiesaffecting the case as a whole". [94] The test for credibility as laid out by Faryna is as follows at 357: The credibility of interested witnesses, 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.

Only thus can a Court satisfactorily appraise the testimony ofquick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successfulexperience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerelybelieves to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling thetruth" is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance ofprobabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothethe trial Judge with a divine insight into the hearts and minds of the witnesses.

And a Court of Appeal must be satisfied that the trialJudge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it canbe tested in the particular case. [emphasis added] [95] It is open to a trier of fact, a judge sitting alone or a jury in a jury trial to accept only some of the evidence of a given witness astruthful and reject other evidence given by the same witness as untruthful, unreliable or inaccurate (see R. v. REM, 2008 SCC 51, [2008] 3 SCR 3 at para. 65). [96] I find that both Mr. Kennedy and Mr.

Greensmyth have limited credibility in this matter. I find that Mr. Ruffalls was a crediblewitness in this proceeding. I find that subject to certain concerns about his relationship to the parties and the timing of his statements,Mr. Schnick was also a credible witness in this proceeding. Though I consider Mr. Fresi’s testimony to be of limited use in this matter, Iwould also find him generally credible.

I do not rely on the testimony of Joanne Kennedy to resolve any contested fact, and thus makeno findings as to her credibility. [97] As their testimony is important for providing a factual basis for that of the accused and complainant, I will first explain myfindings of credibility for Mr. Ruffalls and Mr. Schnick. [98] It was common ground in closing arguments between the parties that I should consider Mr. Ruffalls credible. He is, in thesubmission of both counsel, a “friend to both” Mr. Greensmyth and Mr. Kennedy, thus he should not be seen as a biased witness.

Histestimony at trial was also materially consistent with his statement to Constable Gill on November 29th, 2015, some two and a halfmonths after the assault. Moreover, Mr. Ruffalls was cautious in his testimony, and forthright about any frailties that he could identify inhis recollection of the events of September 19th. He did not overreach in his testimony. Perhaps because he had had little sleep and had

consumed a significant quantity of alcohol, between 8 and 11 pints before the events in issue, there are significant gaps in what his testimony can explain about the events of September 19th. Nevertheless, I find that insofar as Mr. Ruffalls was able to describe what he saw, I can rely on his observations. [ 99 ] Mr. Schnick is potentially an important witness in this matter because his testimony could corroborate Mr. Greensmyth’s version of the acrimonious conversation between him and Mr. Kennedy. I note that Mr. Schnick does not appear to be a “friend to both” Mr. Greensmyth and Mr.

Kennedy, having testified that he considers Mr. Greensmyth a close friend, and having shown in his testimony a distinct dislike for Mr. Kennedy. I find that this may have coloured his testimony to some extent. [ 100 ] As well, I note that the testimony of Mr. Fresi and Mr. Ruffalls might seem to contradict Mr. Schnick’s description of the verbal abuse Mr. Kennedy doled out after breakfast, as neither said that they witnessed any particular insults. However, I note that both Mr. Fresi and Mr. Ruffalls agreed that insults were an ordinary part of the interactions of members of their social group, or in Mr.

Fresi’s words that they frequently “talked to each other in a different manner”. Mr. Kennedy agreed on cross-examination that he was “sure” that he had referred to Mr. Greensmyth’s other friends or work colleagues as “faggots” in the past, though he denied doing so on the morning in question. There is some external evidence, namely, the text messages Mr. Kennedy sent to Mr. Greensmyth after the assault, that might support the proposition that this sort of discourse was normal for him, as Mr. Schnick testified. Finally, as Mr. Schnick’s social connection to the group is comparatively tenuous - Mr.

Ruffalls did not even know who he was - I accept that this discrepancy could be explained as an outsider’s perspective on the conversation he witnessed. Overall I find his testimony as to the insults from Mr. Kennedy to the accused corroborative to some extent of the accused’s testimony on point, and that it is not inconsistent with the testimony of Mr. Ruffalls and Mr. Fresi. [ 101 ] Mr. Schnick’s testimony was consistent with his statement to the police, notwithstanding that it was made in July 2016, almost a year after the assault itself. [ 102 ] Finally, Mr.

Schnick was also sober and had had a full night’s sleep. Overall his testimony was clear and coherent. Subject to the concern that his testimony may be somewhat biased in Mr. Greensmyth’s favour, I find him to have been a credible witness. [ 103 ] I find that Mr. Kennedy is not an entirely credible and reliable witness. This is in part due to his lack of sleep and state of intoxication at the time of the assault. His memory of the events at trial may also be impaired by the head injury he sustained. [ 104 ] Mr.

Kennedy may have had motive to mislead the court in favour of his view of the alleged assault as he sustained apparently significant injuries at the hands of Mr. Greensmyth, and as well because of the unfortunate personal animus between the two men in September 2015. He did however invite the accused to the breakfast. On the other hand, he was not before the court willingly, having been subpoenaed by the Crown, from which one might infer that he had a limited interest in Mr. Greensmyth’s prosecution. [ 105 ] I find that Mr. Kennedy’s testimony sometimes lacked the “ring of truth”.

It was at times very detailed and at times vague and uncertain, depending it sometimes seemed on the light in which it cast Mr. Kennedy. For example, Mr. Kennedy was evasive when asked on cross-examination about any history he might have had of insulting Mr. Greensmyth or Mr. Greensmyth’s friends and co- workers. He avoided the question repeatedly before ultimately conceding that he “possibly” did on previous occasions, though still denying that he had on the morning in question. [ 106 ] In his closing submissions, Mr. Karp suggested that Mr.

Kennedy was implausibly certain in his evidence about the quantity of alcohol he had had to drink. With the greatest respect, on review of his testimony I do not agree. Mr. Kennedy estimated that he had had six to eight drinks, based on his recollection of the evening and his memory of the amount of his tab, but was willing to concede at various points that he was not completely certain. His resistance on cross-examination to the suggestion that he had probably had more to drink than he had testified to cannot be taken as implausible. [ 107 ] Of greater concern, and more relevance, is Mr.

Kennedy’s testimony as to the assault itself, which is somewhat inconsistent with his prior statement to the police. In his statement to Constable Gill on September 21st, Mr. Kennedy expressed uncertainty about how quickly the event happened after he stood up from his chair, a key fact, saying that he might have been hit after taking a few steps, or possibly just as he was rising. In his trial testimony Mr. Kennedy testified that he took three or four steps before he was punched, which is more consistent with the Crown’s theory and Mr. Ruffalls’ evidence, and less so with Mr. Greensmyth’s evidence. Mr.

Kennedy denied any contradiction and held to his trial evidence when pressed on the discrepancy on cross-examination. In his closing argument, Mr. Karp suggested that it was unlikely that a person would have a clearer memory of events over a year later as compared to two days later, and I agree. Nonetheless, I have noted above that when he gave his statement to the RCMP, his head injury was a very recent occurrence. [ 108 ] Similarly, Mr. Kennedy’s testimony that he felt three or four impacts after falling to the ground is more detailed than his description of the same events in his police statement.

In his direct examination Mr. Kennedy described two quick impacts to his head, then a pause, then one or two to his ribs. His police statement does not directly contradict this description, but contains significantly less detail. Mr. Karp raised the concern in cross-examination that in the time since the assault, Mr. Kennedy had pieced together what had happened after he fell based on what others had told him they thought happened, and possibly based on where he thought his individual injuries had come from. Mr.

Kennedy said he did not know if someone had kicked him in the head or not and agreed someone had told him he had been. He did not disagree with this suggestion in cross-examination. [ 109 ] Mr. Kennedy’s testimony also appears inconsistent with Mr. Ruffalls’ in one important way. Central to Mr. Kennedy’s (and the Crown’

s) version of events is that Mr. Greensmyth challenged Mr. Kennedy to a fight before sucker-punching him. Mr. Kennedy testified that Mr. Greensmyth started to pound on the table before challenging him. Mr. Ruffalls, who was sitting at the same table at the time, did not report seeing anyone hit the table in anger, and agreed, in cross-examination, that had this occurred, he felt he would have observed it. [ 110 ] Thus I have concerns with respect to the accuracy and reliability of Mr. Kennedy’s uncorroborated testimony. [ 111 ] I do not find Mr. Greensmyth to be a wholly credible witness either. Like Mr. Kennedy, I found Mr. Greensmyth to be

somewhat evasive and self-serving in his testimony, and there are also material inconsistencies between his police statement and histestimony. [112] Mr. Greensmyth’s testimony seemed tailored to depict himself always in a good light. Of significance to this tendency is hissteadfast denial on cross-examination that he was angered by the verbal abuse Mr. Kennedy had heaped on him.

His resistance to thesuggestion that he might have been at least somewhat angered as any ordinary person surely would have been by insults like his being a“pussy-whipped bitch”, makes his testimony on this point seem not only unlikely but unbelievable. It is not in accordance with thepreponderance of probabilities which a reasonable person would recognize as likely to have been the case at the time. It does not makesense. [113] Of more concern is Mr. Greensmyth’s evidence that as he was leaving the table, he turned and insulted Mr. Kennedy all thewhile feeling hurt, intimidated and apprehensive. I reject Mr.

Karp’s suggestion at the end of closing arguments that this utterance couldbe consistent with Mr. Greensmyth feeling hurt. I find Mr. Greensmyth’s denial that it was motivated at least in part by anger to runcontrary to my understanding of human behavior and raise serious doubts as to his candour and as well to the truthfulness of his aboveassertions that he then felt intimidated by Mr. Kennedy. This evidence also makes no sense. [114] Even more troublesome is Mr. Greensmyth’s characterization at trial of the application of force to the fallen Mr. Kennedy thathe said he made with his foot.

In his statement to the police, Mr. Greensmyth said quite simply that he “kicked him twice in the back”and then left. This event was then clear in his mind. He had no reason based on his own evidence to lie to the police. In my view thereis no detail that could reasonably be added to what he told the police to clarify the point further, including his rather tortured explanationat trial that this “kick” was really a shove with a foot and an exended leg. Mr.

Greensmyth refused to be shaken on cross-examination onthis material inconsistency, and I find again that his evidence at trial is not credible on this very important point, and that Mr.Greensmyth was then clearly shading his testimony to minimize his culpability. I reject Mr. Greensmyth’s evidence that his statement tothe police lacked detail because he did not know, at that juncture, that the matter was serious or would go anywhere or that Kennedy washurt. This is nonsense.

His attempts to reconcile the two versions at trial were wholly unpersuasive. [115] I find I am reluctant to accept the uncorroborated portions of his testimony and do not accept the accused as a credible witness. DISCUSSION [116] As the defence has raised self-defence, the Crown bears the onus of proving beyond a reasonable doubt that one or more of thesubsection 34(1) factors does not apply (R. v. Cinous, 2002 SCC 29). [117] Mr. Karp raised the well-known case of R. v. W(D), (SCC), [1991] 1 SCR 742 (“W(D)”) as a framework bywhich to reach a disposition on this question and I agree. [118] In addition to R. v.

W(D), there is also the decision of Wood JA in R. v. CWH, (BC CA), 1991 BCJ No. 2753,which has particular application in the case at bar. After referring to the three instructions in R. v. W(

D) at page 8 of his reasons given onbehalf of the court, Wood JA said this: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. [119] I have said at the outset of these reasons that the assault charge really had two components, the punch – surely the more seriousallegation and aspect and the two kicks admitted to by the accused in his voluntary statement given to police Constable Gill the day afterthe alleged offence occurred.

I have not and cannot find how it was that Mr. Kennedy suffered his head injury – the grievous bodilyharm aspect of this charge – whether as a direct result of being punched and falling and hitting his head on a chair on the way down, oron the ground or from being kicked twice by the accused on the ground. [120] As to the punch, I find I am unable to determine considering all the evidence in this case whom to believe and whether as Crownasserts, the accused “sucker punched” the complainant Mr.

Kennedy or whether the accused had a real and genuine fear that he wasabout to be attacked by Kennedy and defended himself by striking Kennedy first. Thus R. v. CWH in my view has direct application onthe facts of this case insofar as the punch was a component of the assault charged. I find the Crown in the circumstances has thus failedto prove beyond a reasonable doubt that self-defence does not apply in favour of the accused with respect to the punch.

I am left with areasonable doubt as to whether or not the accused struck Kennedy with his fist because he believed on reasonable grounds that Kennedywas or would attack him and struck him to avert such an attack. [121] This finding does not exonerate the accused with respect to the kicks. His voluntary statement given to the police is to thefollowing effect after describing that the complainant Kennedy came at him and that he hit him once in the face with his fist and thatKennedy “hit the ground”: Cst. GILL: And then what did you do? GREENSMYTH: Um I kicked him in the back twice and then I left. Cst.

GILL: Okay and what was he doing while he was on the ground? GREENSMYTH: Nothing. [122] I accept this evidence as truthful and accurate. It is corroborated both by the complainant Kennedy to some degree and by theonly non-involved witness who saw at least some of the matter, namely, Mr. Ruffals. I should state that I am alive to the evidenceKennedy gave in cross-examination that he did not know whether he was kicked on the ground and that he may have been told by one ortwo people that he may have been kicked in the head. He was nonetheless not shaken with respect to his evidence that he felt as many as

four “impacts” on his body, potentially two on his back and rib area referred to below. [ 123 ] Kennedy appeared honestly to admit that he could not testify clearly as to what occurred in the seconds after as a result of being punched, he went down. He said he felt dazed. This statement surely accords with reality. He said he felt as many as four impacts to his body, one or two to the right side of his face and one or two to his back and left side ribs. He openly admitted it was possible that he hit his head on the way down on the stack of chairs.

Had he done so, this and not a kick or impact to his head would account for the mark on his right forehead. [ 124 ] Ruffalls saw Kennedy go down behind the table where he was sitting and the others had been sitting as a result of some sort of wrestling move he observed, but could not say who initiated this move. He saw the accused stand over him as Kennedy fell and make two hip movements in quick succession. He could not see what the accused was doing with his legs or feet. He then saw the accused walk away quickly.

In my view, these motions Ruffalls described would be exactly the type of motion one might see a person who was kicking something or someone make with his body in the course of doing so. [ 125 ] Mr. Schnick’s evidence to the effect that he and the accused had the time to have a short conversation outside the club of approximately 30 seconds duration during which the accused told him that he and the complainant had just had a fight and that he had knocked Kennedy out is not challenged by Crown or defence.

The fact that the accused had time to have such a discussion, albeit short, causes one to seriously question the accuracy of the accused’s evidence that he needed to somehow push Kennedy down with his foot because he was attempting to get up so the accused could buy some time to escape.

I do not believe he did what he said that he did at trial or that he did anything to “buy time”. [ 126 ] The accused testified at trial that prior to striking Kennedy, he was fearful of him and that after punching him, Kennedy went down, hit his head on a chair, landed on his side, rolled to his stomach, got his hands and one foot under himself, and “looked ready to get to his feet”. I do not believe this evidence. Kennedy’s evidence that he was dazed when he went down makes more sense.

The accused’s evidence is diametrically opposed to what he told the police as to what Kennedy was doing on the ground – “nothing”. I believe this evidence as found in the accused’s statement to the police. [ 127 ] Was this final application of force on the person of the complainant by kicking an assault? I find that it was.

Clearly it was an intentional act on the part of the accused and I find on all the evidence, not one that the accused consented to. [ 128 ] Has Crown proven beyond a reasonable doubt that the two kicks administered by the accused were not done pursuant to s. 34 of the Criminal Code in self-defence by the accused? [ 129 ] I find based on all the evidence in this case, which I do accept as truthful, that when down as a result of the accused’s punch, Kennedy was dazed and doing nothing and not in the process of getting up.

I reject that when the accused kicked Kennedy that he then believed on reasonable grounds that Kennedy’s actions were then tantamount to a threat of force being made against him. I have rejected his evidence that the kicks were in essence an effort on his part to delay the complainant’s getting up so he could flee.

The accused’s kicks were not administered to Kennedy for the purpose of defending himself from either the use of or threat of force by Kennedy and these kicks, considering all facts in s. 34(2) of the Criminal Code , I find were not reasonable in the circumstances. [ 130 ] The accused is a big apparently healthy and fit looking young man now and there is no evidence he was otherwise on September 19, 2015. He did not need to kick Kennedy at all. He could have fled the scene (and did so) without impediment and more quickly than he did. He walked out. He could have run out. Mr. Ruffalls is a big man.

The accused could have called on him to help. He was seated right there. There is no evidence Kennedy ever struck the accused before. He was not that much bigger than the accused. He was intoxicated. The accused was sober. I find that when down and dazed as a result of the accused’s punch that Kennedy posed no immediate threat and that the accused’s kicks were completely unnecessary and likely administered because the accused was angry with Kennedy and had lost control.

I thus find that Crown has proven beyond a reasonable doubt that the defence of self-defence is not available in the circumstances of this case. [ 131 ] In the result and absent reliable evidence to connect the physical harm and injuries Kennedy suffered during this entire event to the kicks admitted to by the accused, I find that the Crown has proven beyond a reasonable doubt that in kicking Kennedy when he was down, the accused committed the criminal offence of common assault (see s. 662(1) (

a) of the Criminal Code ) and I convict him of such an assault pursuant to s. 265(1) of the Criminal Code and find that it is a lesser included offence of that charge. _____________________________ The Honourable Judge B. Dyer Provincial Court of British Columbia