R. v. Wheeler and Rear Date:, 2012 BCPC 292

Citation: R. v. Wheeler and Rear Date: 20120817 2012 BCPC 0292 File No: 74976-K1 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JANEL WHEELER and DAVID MICHAEL REAR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: J. MacRae Counsel for the Accused, Ms. Wheeler : H. Stevenson Counsel for the Accused, Mr. Rear : D. Turko Place of Hearing: New Westminster , B.C. Dates of Hearing: February 9, 10 and 16, 2012; March 29, 2012; and May 25, 2012

Date of Judgment: August 17, 2012 TABLE OF CONTENTS CONTENT PARAGRAPH INTRODUCTION 1 UNDISPUTED FACTS 12 ASSESSING CREDIBILITY 15 FACTS IN CONTROVERSY 18 The Quest for Mr. Rear’s Ventolin Inhaler 18 (

a) Mr. Rear’s voluntary exposure to triggers for asthmatic symptoms 26 (

b) The failure of the accused to choose an approach to retrieving the ventolin from the Apartment that was reasonably likely to succeed 32 (

c) The actions of the accused after leaving the Apartment 52 (

d) Conclusion regarding the quest for Mr. Rear’s ventolin inhaler 54 Intent to Intimidate J.G. to Leave the Apartment 55 What Actually Occurred During the Altercation 62 (

a) The action that triggered the altercation 67 (

b) Ms. Wheeler’s actions toward R.M. following the commencement of the altercation 73 (

c) Ms. Wheeler’s actions toward J.G. when the altercation spilled into the dining area 77 (

d) Mr. Rear’s conduct throughout the altercation 84 W.D. DETERMINATIONS 87 CONCLUSIONS AND DISPOSITION 96 Ms. Wheeler 96 Mr. Rear 100 INTRODUCTION [ 1 ] Janel Wheeler (“Ms. Wheeler”) and David Michael Rear (“Mr. Rear”) appear as co-accused on New Westminster Information No. 74976-K1. They are each charged with assault causing bodily harm. There are two complainants named in the Information, namely, J.G. and her adult daughter R.M.

The alleged offence date is June 15, 2011, and the location where the altercation is said to have occurred is New Westminster, B.C. [ 2 ] While the Information alleges that each of the accused assaulted both of the complainants causing both to suffer bodily harm, Crown counsel Ms. MacRae advised in her closing submissions that the Crown now seeks conviction: (

a) of Ms. Wheeler for assault causing bodily harm of J.G.; (

b) of Ms. Wheeler for assault simpliciter of R.M.; and (

c) of Mr. Rear as a party to both of the offences allegedly committed by Ms. Wheeler. [ 3 ] The Crown proceeds summarily against Ms. Wheeler and Mr. Rear. Both accused chose to give defence evidence. [ 4 ] The accused and the complainants were known to each other prior to the events of June 15, 2011. Indeed, some years earlier Mr. Rear and J.G. had shared an intimate relationship. As of the offence date, Mr. Rear had temporarily rented an apartment in New Westminster, B.C. that was occupied by J.G. (the “Apartment”).

However, their relationship by that time had become badly strained and was most certainly no longer a romantic one. Thus, despite having a room and some of his possessions in the Apartment, Mr. Rear was at the time of the altercation in fact living some distance away in New Westminster in Ms. Wheeler’s apartment. [ 5 ] The altercation that occurred on June 15 th was rooted, in part, in conflict between Mr. Rear and J.G. about who would reside at the Apartment and on what terms. As noted, at the time J.G. was in actual occupation of it, Mr. Rear was living some distance away with Ms.

Wheeler and he was trying to get J.G. out. His was the first name on the lease but, through direct dealings with the Apartment’s landlord, J.G. had gotten her name added to the lease as well. [ 6 ] Ms. Wheeler and Mr. Rear assert that they were and are just friends and deny that they have a romantic relationship. J.G. has left Mr. Rear and Ms. Wheeler, and the court, with the clear impression that she was and is sceptical of that claim. [ 7 ] Mr. Rear was acquainted with J.G.’s adult daughter, the complainant R.M., from the days when he and J.G. were a couple. Ms.

Wheeler had never met R.M. before the date upon which the incident giving rise to the charges took place, although she had met J.G. on a few occasions. [ 8 ] It is beyond doubt that an altercation took place on June 15, 2011 that left both complainants with injuries. Ms. Wheeler gave evidence about bruising that she said she sustained during the altercation. She argues that to the extent she was a combatant, she acted out of self defence.

[ 9 ] It is also beyond doubt that the altercation of June 15 th fits within the broader context of ill will that had developed between Mr. Rear and J.G., in part with regard to the disposition of the Apartment which they had rented temporarily together. [ 10 ] At trial, the alleged assailants and complainants gave markedly differing accounts of how the struggle at the Apartment erupted and of who played what roles from the lead up to it until it was ended. The accused say that they attended there simply to retrieve Mr.

Rear’s asthma medications; the Crown argues that the purpose of the visit was to intimidate J.G. into moving out of the Apartment quickly. It is obvious therefore that credibility is a central issue in this case. [ 11 ] The fact that the physical encounter that is the focus of these proceedings is part of a larger picture in which some of the players have family connections and others were friends (and, in the past, intimates) adds complexity to the court’s credibility assessment and fact-finding tasks.

Quite simply, a complex web of grievances and allegiances exists between and among the accused and the complainants. These grievances and allegiances can be expected to figure in some way in determining which versions of the disputed facts can be preferred over others. UNDISPUTED FACTS [ 12 ] I do not understand the issues of territorial jurisdiction or identification to be in controversy in this case.

It is common ground that the altercation giving rise to the charges occurred in New Westminster, British Columbia, and that the persons who were present in the Apartment with the complainants J.G. and R.M. when violence erupted were Ms. Wheeler and Mr. Rear. At issue, rather, is who did what to whom and for what reasons. [ 13 ] A good deal of evidence was heard during the trial of the charges against Ms. Wheeler and Mr. Rear.

I will not survey all of it because not all of it is material with regard to the facts I must find or the legal determinations that I must make based upon those findings. [ 14 ] Some of the relevant facts are not disputed. I set those out below as I have found them: (

a) Mr. Rear suffered and suffers from asthma. His condition is affected by, among other things, exercise and exposure to domestic animals. Mr. Rear self-administers ventolin, a prescribed medication, when he experiences asthmatic symptoms. He has, in the past, had to seek treatment in hospital for his asthma when his ventolin inhaler had run out and a replacement supply was unavailable; (

b) At the time of the subject altercation, Mr. Rear and the complainant J.G. had known one another for approximately nine years. Some years earlier they had had a romantic relationship and had lived together, part time, during that phase; (

c) In May/June of 2011, J.G. was in transition as to housing and needed temporary accommodation that she could occupy while she looked for something more permanent and more likely to be viewed by the Ministry of Children and Family Development as suitable accommodation for her son, C.G.; (

d) J.G. made contact with Mr. Rear and they agreed to find lodging, in part to make provision for C.G., and to share the cost of the same on a temporary basis, beginning in June, 2011; (

e) Mr. Rear and J.G. located the Apartment and rented it together. Mr. Rear had a bedroom in it and access to the common rooms. J.G. had a separate bedroom and access to the common rooms. Mr. Rear was at first the only tenant named on the lease but, through dealings with the landlord, J.G.’s name was subsequently added, presumably as a sub-tenant; (

f) Conflict developed between Mr. Rear and J.G. during June of 2011, in part by reason of a breakdown in the role that Mr. Rear had temporarily assumed in caring for J.G.’s son, C.G. That role had been made necessary by the involvement of the Ministry of Children and Family Development in the lives of J.G. and C.G. By the time of the alleged assaults, C.G. was being cared for temporarily by persons other than J.G. and Mr. Rear; (

g) The last night that Mr. Rear stayed at the Apartment before the incident was June 9, 2011, following which he resumed residing, on an on-and-off basis, at Ms. Wheeler’s apartment; (

h) Given Mr. Rear’s desire to live separately from J.G. but regain access to the Apartment and his possessions there, he and J.G. exchanged text messages and attempted to work out terms upon which J.G. would leave the Apartment. The proposed terms included the return of some rent and security deposit monies. The discussion of these and other disputed matters further inflamed the conflict between Mr. Rear and J.G. In the course of their communications at this time, J.G. sent text messages to Mr. Rear in which she threatened to, among other things, harm herself and C.G.; (

i) On June 13 th Mr. Rear attended at the Apartment to pick up some of his belongings and notify J.G. formally that she must vacate the Apartment within 15 days. He arranged to have New Westminster Police Department members present during that attendance out of a concern that without their presence further conflict might erupt, preventing him from achieving his objectives. Although, even in the presence of police, J.G. did display some violence toward him, Mr. Rear succeeded on June 13 th in recovering some of his possessions and serving an eviction notice on J.G.; (

j) Tensions between Mr. Rear and J.G. continued to escalate in the wake of the June 13 th visit; (

k) On the alleged offence date of June 15, 2011, prior to the altercation at issue in this case, Mr. Rear and Ms. Wheeler had spent a number of hours during the late afternoon/early evening at her brother’s home watching the Stanley Cup hockey game on television in the company of friends and relatives. A dog and three cats belonging to Ms. Wheeler’s brother were also present; (

l) During the time he was at Ms. Wheeler’s brother’s home, Mr. Rear exhausted his supply of ventolin. He and Ms. Wheeler

eventually returned to her apartment; (

m) Later in the evening of June 15th, Mr. Rear attended again at the Apartment, this time in the company of Ms. Wheeler. Thistime he did not bring the police; (

n) J.G. and R.M. were at the Apartment, watching the Stanley Cup riot on television. J.G. was on a sofa that was positionedagainst a wall near the entrance to the living room. R.M. was on a smaller sofa, or love seat, at the far end of the living room; (

o) The deadbolt in the door controlling entry to the Apartment was locked and two interior, fold-over security latches werefastened; (

p) Mr. Rear unlocked the deadbolt with his own key. It opened an inch or two to the point where further movement was preventedby the fold-over latches; (

q) Through the opening Mr. Rear called out, identifying himself and asking to be permitted to enter. He received no response. Mr.Rear therefore used his shoulder to apply pressure to the door. When he did so, the upright part of the moulding that surrounded the dooron the inside—into which the fold-over security latches restraining entry were screwed—broke away and fell to the floor. The door thenopened fully and with such force that it banged against the adjacent wall once the moulding gave way; (

r) Mr. Rear entered the Apartment, walked into the living room past J.G. and took a seat on the love seat next to R.M. Ms.Wheeler remained outside the Apartment, standing in the hallway; (

s) Mr. Rear began speaking with R.M. but made no mention of his asthma or of his purpose for entering the Apartment being torecover a ventolin inhaler; (

t) After a short gap of time Ms. Wheeler also entered the Apartment and walked into the living room where Mr. Rear, J.G. andR.M. were gathered; (

u) Upon seeing Ms. Wheeler enter J.G. cried out “Get that fucking bitch out of here” or words to that effect; (

v) Immediately thereafter a physical altercation erupted that involved Ms. Wheeler, R.M. and J.G. as combatants. It began in theliving room and spilled into the kitchen/dining room area. The altercation lasted only a few minutes; (

w) While the physical altercation was underway, both J.G. and R.M., using separate cell phones, managed to place emergency 911calls—in R.M.’s case from behind the locked door of a bathroom where she had taken refuge and in J.G.’s case from the dining area; (

x) Mr. Rear was not involved in the altercation as an active combatant in the sense that he administered blows to either of thecomplainants. Ms. Wheeler on the other hand exchanged blows with both complainants; (

y) Eventually Mr. Rear and Ms. Wheeler left the Apartment, together. From there they proceeded on foot, first to the RoyalTowers pub—a distance of six or seven blocks, downhill—where they drank some beer. They then continued on to Ms. Wheeler’sapartment, also on foot—a distance of four to five blocks, uphill—where they stayed for the night; (

z) Shortly after Mr. Rear and Ms. Wheeler left the Apartment, police attended in response to the two 911 calls that had been placedby J.G. and R.M. from it. They interviewed both complainants and took photographs of them and their injuries; (aa) Thereafter, police attended at Ms. Wheeler’s apartment for the purpose of arresting her and Mr. Rear but found that nobody washome; (bb) Both Ms. Wheeler and Mr. Rear were arrested on the current charges the following day, June 16, 2011; (cc) Several weeks later, after it had been vacated by J.G., Ms. Wheeler and Mr. Rear moved into the Apartment together.

ASSESSING CREDIBILITY [15] Before turning to the controversial facts and making factual findings based in part upon credibility assessments, I will brieflyreview the approach, based upon the governing authorities, that must be taken to evaluating the credibility of the disputed evidence. [16] The law in this area is well settled and defined in the protocol set out by the Supreme Court of Canada in R. v. W.D., (SCC), [1991] 1 S.C.R. 742 at 757, as augmented by the B.C. Court of Appeal in R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (C.A.). For each of the accused, under that protocol: (

a) If I believe the exculpatory evidence of the accused, I must acquit; (

b) If, after a consideration of all of the evidence I am unable to decide whether to believe the exculpatory evidence of the accused or theCrown witnesses, I must acquit; (

c) If I do not believe the exculpatory evidence of the accused, but am left in reasonable doubt by it, I must acquit; and (

d) Even if I am not left in reasonable doubt by the exculpatory evidence of the accused, I must ask myself whether—on the basis of theevidence I do accept—whether I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [17] In making the necessary credibility determinations to which I refer later in these reasons, I have followed the augmented R. v.W.D. protocol as set out above.

FACTS IN CONTROVERSY The Quest for Mr. Rear’s Ventolin Inhaler [18] Inasmuch as the contention that Mr. Rear and Ms. Wheeler had an innocent and legitimate purpose for attending at theApartment is the central pillar of their defence, I shall begin my discussion regarding the controversial facts by analysing the evidence regarding the purpose for the visit by the accused to the Apartment on the evening of June 15th. [19] Both accused testified that the sole purpose of the visit was to retrieve Mr. Rear’s asthma medication.

It is contended that Mr.Rear was in need of a ventolin inhaler that he had left at the Apartment because he was suffering a serious asthma attack and hadexhausted his supply of medication earlier that evening. If accepted, this defence evidence of an innocent purpose would establish apivotal exculpatory fact. [20] I can say straightaway that I am unable to accept the evidence that the accused gave regarding an innocent purpose for theirattendance at the Apartment. In the paragraphs that follow I shall explain, in some detail, why. [21] I begin with a general observation.

Much of the evidence given by both accused that surrounds the important question of why they attended at the Apartment on June 15th issue lacks an air of reality. This militates against my acceptance of it. To quote thelanguage of O'Halloran J.A. in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), the evidence given bythe accused regarding their purpose for attending at the Apartment lacks harmony with "the preponderance of the probabilities which apractical and informed person would readily recognize as reasonable in that place and in those conditions" (at p. 357).

I am aware thatFaryna is a civil case but the applicability, with appropriate caution, of its reasoning in criminal cases has been acknowledged: see, forexample, H.M.T.Q. v. R.J.E., [1999] B.C.J. No. 322 (S.C.) at paras. 34-35, per Romilly J. [22] Much was made by both Mr. Rear and Ms. Wheeler in their testimony regarding what they characterised as Mr. Rear’s seriousaffliction with asthma. They testified that he has had asthma for many years, that he takes ventolin to treat it and that his attacks can bequite severe. Such attacks, they said, are triggered by many factors, including exercise and allergens.

Exposure to household pets is “abig one” according to Ms. Wheeler. [23] Mr. Rear’s history with asthma has, in past years, required him to be hospitalised when he ran out of ventolin. His evidence wasthat it is not always possible to predict what will bring an attack on or whether an attack will become a severe one. He testified that atthe time he and Ms. Wheeler went to the Apartment to retrieve his ventolin inhaler, though not in a “life and death” situation, he wasnevertheless in “extreme discomfort”. In an effort to situate on a one-to-ten scale the severity of that attack Mr.

Rear chose the numberseven. [24] While I do not doubt that Mr. Rear suffered, and suffers, from asthma, I believe that both accused exaggerated the seriousness ofhis affliction, and particularly the attack on the night in question, in order to create what I have concluded was a false explanation fortheir attendance at the Apartment during which the altercation occurred. [25] I turn now to some of the specifics. (

a) Mr. Rear’s voluntary exposure to triggers for asthmatic symptoms [26] Both accused referred in their testimony to the contention that during the latter part of the evening of June 15th, Mr. Rear waswithout an inhaler and experiencing increasingly severe asthmatic symptoms. They attributed the worsening of his condition in part tohis exposure, earlier in the evening, to Ms. Wheeler’s brother’s dog and three cats while they watched a hockey game at his home.

Mr.Rear said that he stepped in and out of doors in order to get fresh air while visiting the brother’s apartment so as to address the problem,but that his difficulties with breathing were increasing despite those efforts. He testified that his ventolin ran out “toward the end of thegame”. By their account, he and Ms. Wheeler then went home to her apartment, his symptoms got worse, but it was too late to go to theonly pharmacy where his prescription could be refilled to get more ventolin. [27] I find it difficult to reconcile this account of Mr.

Rear’s actions earlier in the day on June 15th with his description of his quiteserious affliction with asthma. It seems highly improbable that a person with such a serious affliction would willingly place himself inan environment inhabited by four domestic animals (“big” triggers for his attacks according to Ms. Wheeler) and progressively depletehis ventolin supply to the point of exhaustion, knowing that the only store where he could get more medication was closed. Ms.Wheeler, after all, corroborated Mr. Rear’s evidence that his asthma attacks can be quite severe.

What both accused described is not thebehaviour one would expect of an individual who knows that his asthma attacks can be quite severe, that their course can be quiteunpredictable, and that they need to be managed with prescribed medication. One would expect that such an individual would, at thevery least, take particular care to avoid exposure to known “big” triggers and, to they extent they cannot be avoided, to stay wellequipped with a sufficient supply of medication should such exposure occur. [28] The fact that Mr.

Rear did neither leads me to conclude that his asthmatic symptoms on the night in question were not as seriousas he and Ms. Wheeler sought to portray them when they endeavoured to persuade the court that they had a worthy, medical reason forattending at the Apartment later in the evening. [29] I am made more sceptical of Mr. Rear’s account of the seriousness of his symptoms and attacks—both on the night in questionand generally—by the evidence given by both accused about Ms. Wheeler having a cat at the apartment she then occupied and whereMr. Rear was living, on and off.

I cannot believe that a person with a serious asthmatic condition for which domestic animals are a “big”trigger would choose to live, even in an on-and-off way, in an apartment where a cat lives or had recently lived. Seen in the context ofthe evidence overall, that contention is untenable. [30] Ms. Wheeler’s evidence on the subject of the cat was confused and confusing. She testified that she believed that the cat mighthave run away by the time of Mr. Rear’s arrival. Mr. Rear on the other had did not refer to any such disappearance of the cat; rather, he

told the court that Ms. Wheeler’s cat was hypoallergenic—a feature not mentioned by Ms. Wheeler. [ 31 ] Clearly, both accused recognised when they were testifying that, given Ms. Wheeler’s evidence that domestic animals are a “big” trigger for his asthma attacks, Mr. Rear’s apparent willingness to live (even temporarily) in an apartment with a cat raises questions about their evidence overall concerning the severity of his asthma.

Both attempted to deal with the problem this created for their the defence, but (as noted above) their ways of dealing with it were themselves contradictory, detracting further from the credibility of the evidence about Mr. Rear’s asthma, his urgent need for ventolin on June 15 th and thus the innocent purpose both claimed to have had for their visit to the Apartment on Jun 15 th . (

b) The failure of the accused to choose an approach to retrieving the ventolin from the Apartment that was reasonably likely to succeed [ 32 ] If, as is contended by the accused, the real purpose for attending at the Apartment on the night of June 15, 2011 was simply to retrieve a ventolin inhaler in order to deal with increasingly severe asthmatic symptoms, then one would reasonably expect Mr. Rear and Ms. Wheeler to have chosen an approach that was likely to succeed.

In my judgment, it was eminently foreseeable that the approach the accused claimed they took had a minimal likelihood of achieving the stated objective and a high likelihood of leading directly to conflict and confrontation that would get in the way of achieving the claimed objective. Viewing the evidence of the conduct of the accused through the helpful lens that the Faryna reasoning provides, I find that that conduct detracts from the credibility of the repeated assertions, made by both accused, that the purpose of their visit was solely to obtain the medication that Mr.

Rear needed in order to deal with a worsening asthmatic state. [ 33 ] The evidence of both accused is clear that on the day leading up to the altercation, conflict between Mr. Rear and J.G. was worsening. Mr. Rear particularly described J.G.’s behaviour as increasingly erratic, volatile and unpredictable, and he agreed on cross- examination that in the run-up to the altercation on June 15 th there was nothing to indicate that relations were getting, or were likely to get, any better. He said he knew that if he were to see J.G. around that time her reaction was “more than likely to be bad”. [ 34 ] Mr.

Rear had seen fit to seek and obtain police assistance during his most recent previous attendance at the Apartment, at which time he retrieved certain property and served an eviction notice upon J.G. Even with police present on that occasion, he said, J.G. displayed violence toward him during the attendance. [ 35 ] No satisfactory explanation was given for Mr. Rear’s failure to recruit police assistance on June 15 th when the risk of conflict was higher and his reason for returning to the Apartment was, he said, grounded in worsening circumstances of medical necessity.

The presence of police would plainly have afforded an opportunity for Mr. Rear to locate and retrieve his medication under more favourable conditions. The need for police on June 15 th was obviously greater than it had been on the previous occasion when he had, despite some conflict, been able to realise his objectives. The contention that Mr. Rear and Ms. Wheeler attended at the Apartment as the only practical means of relieving Mr. Rear’s worsening asthmatic suffering is made markedly less tenable by the failure of Mr.

Rear to employ a method for maximising the success of the enterprise (a police escort) that he had employed, and that had worked, not long before. [ 36 ] That a hostile reception to the visit was likely and foreseeable by both accused is plain on the face of the evidence. As I have noted, Mr. Rear was clear in his testimony that relations had badly deteriorated to the point where he had received texts from J.G. in which she threatened to bring herself, and C.G., to harm.

Texts confirming worsening relations arrived, he said, between the visit to the Apartment when the police were brought along and the visit made on June 15 th . No one in Mr. Rear’s position could reasonably have expected anything other than an initially unwelcoming and antagonistic reception and, thus, one would expect in all the circumstances that—had his real purpose been to retrieve his medication—he would have taken steps to prepare the way as best he could for a successful outcome. He did not do so. To the contrary, everything about the approach he took was almost guaranteed to thwart his stated objective.

I cannot accept, therefore, that his purpose in so attending was to get his medication. [ 37 ] Mr. Rear confirmed in his evidence that he did not call ahead or send a text to J.G. to alert her to the fact that he would be attending for the sole purpose of getting his ventolin inhaler from the Apartment. It is a reasonable supposition that such advance notification might have improved the likelihood of a successful outcome. Mr. Rear gave no such advance notice. [ 38 ] When he arrived at the door of the Apartment, Mr. Rear declined to knock but, rather, unlocked the door with his key.

In the circumstances, he had to have known that even beginning the process of gaining entry to the Apartment unilaterally, given the prevailing and worsening conflict between himself and J.G., would likely provoke further conflict and diminish the likelihood that he would come away from the visit with the medication he was seeking. Nevertheless, he chose to unlock the door and then attempt to open it without knocking. [ 39 ] When the door opened partway he found that fold-over security latches were fastened from the inside, preventing the door from opening more than an inch or two. Mr.

Rear had at that point another opportunity to announce the specific purpose for his attendance and, thereby, perhaps quell fears and concerns on J.G.’s part and improve the likelihood that she might even bring the ventolin inhaler to him and pass it to him through the partly opened door. That is the kind of action one might expect from Mr. Rear if, as he contends, his reason for being present at the Apartment was solely to obtain needed medication. But Mr. Rear did not announce his specific purpose. He simply called out to be let in.

This is not the behaviour of a man bent upon maximising the chances of obtaining much-needed medication. [ 40 ] Hearing either nothing, or perhaps laughter, coming from inside the Apartment (he couldn’t be sure), and having heard no specific response to his request to be let in, Mr. Rear did not call out again to obtain the attention of those inside. He did not seize the opportunity still available to him to give expression to his claimed purpose of obtaining badly needed medication.

Rather, he put his shoulder to the door with sufficient force to cause the fold-over security latches to pull the moulding that surrounds the doorway (and into which the latches were screwed) free from the wall. The door swung open with sufficient force to bang against an adjacent wall. The moulding fell to the ground. Mr. Rear entered the Apartment.

[ 41 ] To any reasonable person this mode of entry was manifestly prone to provoke a hostile and uncooperative response on J.G.’s part to Mr. Rear’s arrival, given the mounting conflict between them. To any reasonable person the aggravation of that conflict by entering in the above-described manner would foreseeably interfere with the claimed purpose of obtaining the medication and leaving. [ 42 ] Mr.

Rear’s evidence that he came for no other purpose than to get his ventolin inhaler from the Apartment and leave is undone by his evidence that he repeatedly made choices, like breaking through the door, that worsened his chances of fulfilling that purpose. (I pause here to note, parenthetically, that the credibility of both accused suffered badly by reason of their efforts to minimise the violent nature of their mode of entry to the Apartment. Mr. Rear used the word “nudge” twice to characterise his action in breaking through the door.

Surprisingly, when asked during cross-examination whether, hypothetically, she would be disturbed if she had secured fold-over locks on her own premises and then someone broke through them to gain entry, Ms. Wheeler said she couldn’t be sure she would. She elaborated by stating that “If the person [gaining entry that way] was a roommate with a medication problem and on the lease, I wouldn’t get upset”. Here, Ms. Wheeler sought to downplay the traumatic effect of having someone force entry into her own premises, breaking through two fold-over latches into the bargain.

In so doing she showed what public relations professionals might consider to be an admirable effort to stay “on message” in the sense of giving expression, wherever possible, to the alleged innocent purpose of the visit to the Apartment. However, in service of that objective she was plainly willing to sacrifice truth telling on the altar of her sales pitch—a very bad tactic to employ in a courtroom and, I dare say, in public relations for that matter. In this way and others the accused, in my judgment, badly undermined their own credibility.) [ 43 ] Mr.

Rear was aware of the fact that J.G. bore substantial ill will toward Ms. Wheeler. He testified that J.G. mentioned to him at times that she believed he was in an intimate relationship with Ms. Wheeler (something that he denies) and that, prior to June 15 th , she was given to saying “mean things” about Ms. Wheeler. During cross-examination, Mr. Rear went so far as to testify that J.G. had used the epithet “fucking bitch” to describe Ms. Wheeler 100 times before June 15 th . He also confirmed that he was aware that the enmity that J.G. maintained toward Ms.

Wheeler was known to J.G.’s adult daughter, R.M. [ 44 ] Because, as I have indicated, increased conflict upon arrival was clearly inimical to the achievement of Mr. Rear’s claimed purpose of obtaining his medication from the Apartment on the night of June 15, 2011, one is left to wonder why he thought it necessary to have Ms. Wheeler accompany him to the Apartment at all. He could, for example, have simply said to her words to the effect of “Wait for me outside the building. You know that [J.G.] dislikes you and I don’t want anything extraneous to get in the way of getting my inhaler.” Mr.

Rear did not use that sensible approach or anything like it. Rather, he brought Ms. Wheeler along to the Apartment on his claimed mission to retrieve his ventolin, fully cognizant of the depth and breadth of the ill will that J.G. bore toward her. [ 45 ] When cross-examined Mr. Rear could not identify a reasonable purpose for having Ms. Wheeler with him when he went to the Apartment. He mentioned that she had been with him for the whole day and that she wanted to be with him because of his asthma.

Her presence being such an obvious likely obstacle to his getting the medication he needed to obtain relief from that asthma, Mr. Rear’s evidence that he simply acquiesced in Ms. Wheeler’s desire to come along puts the lie to his contention that he was there to accomplish something that her presence would plainly make much more difficult. [ 46 ] The evidence establishes that Ms. Wheeler knew about the texts J.G. had recently sent to Mr. Rear that revealed a deteriorating pattern in their conflict. She knew that Mr. Rear wanted J.G. out of the Apartment. She knew that the last time Mr.

Rear had attended at the Apartment for the purpose of serving an eviction notice upon J.G., he had considered it necessary to have a police escort. She knew, in other words, that any appearance by Mr. Rear at the Apartment was likely to be unwelcome and to be greeted with resistance from J.G. [ 47 ] Ms. Wheeler knew as well that J.G. disliked her , and that her own presence as part of the visit could only increase the likelihood of conflict. Yet she came along anyway, ostensibly to assure the medical well-being of Mr. Rear.

Inasmuch as her decision to accompany him obviously placed in jeopardy his claimed primary objective—that is, the retrieval of a much-needed ventolin inhaler— she simply cannot be believed. [ 48 ] I find it significant that, on her own evidence, Ms. Wheeler hung back for a short period in the hallway when Mr. Rear ventured into the interior of the Apartment once the door to it had been broken open. She said she did so out of “respect” for those inside and out of a concern about the possibility of conflict. This behaviour of hanging back is also indicative, however, of the degree to which she considered Mr.

Rear to be able to manage without her assistance. Indeed, Ms. Wheeler was clear in her evidence that she did not enter the apartment herself based upon having heard or seen anything that called his condition into question. She was clear that she did not hear any yelling or shouting coming from inside. She even admitted that Mr. Rear did not summon her to join him. This all accords with Mr.

Rear’s evidence that as soon as he entered the Apartment he took a seat next to R.M., seeking to show that he had no malign purpose in being there and telling J.G. and R.M. that he was “not angry”. [ 49 ] To that point, despite Mr. Rear’s choice of entry method, it appears on the evidence that there was still some chance that matters within the Apartment would not degenerate into violence. But Ms. Wheeler did not continue to hang back and allow Mr. Rear to continue with his efforts alone.

Rather, without being summoned by him or having any other indication that she was needed, she ventured into the place where she knew she was distinctly unwelcome. If she were in any doubt about that (which she testified she was not), the point was brought unerringly home by J.G. shouting, upon seeing her enter the Apartment, “Get that fucking bitch out of here.” From there, the situation quickly unravelled and, in a matter of seconds, the physical confrontation had begun. [ 50 ] While it is idle to speculate about what might have happened if Ms.

Wheeler had continued to hang back, there is evidence to show that her decision to advance into the Apartment provoked a very hostile verbal response from J.G. that, in turn, was followed very swiftly by the eruption of violence that quickly spread to include all three of Ms. Wheeler, J.G. and R.M. directly, and Mr. Rear indirectly [ 51 ] On the evidence before the court, there was no good reason for Ms.

Wheeler to enter a place where she knew she was clearly unwelcome, where indeed she knew her presence was likely to draw a hostile response, and where there was nothing unfolding at the time of her entry that called for her presence. Ms. Wheeler’s conduct, like that of Mr. Rear in bringing her along in the first place, was in my opinion clearly at odds with what she must be taken to have known would favour a successful mission to obtain Mr. Rear’s

medication. The evidence of Ms. Wheeler’s actual conduct thus undercuts defence counsel’s submissions that the actions of the accused on the alleged offence date were aimed only at retrieving Mr. Rear’s ventolin to deal with exigent health circumstances. (

c) The actions of the accused after leaving the Apartment [ 52 ] Remarkably, having come away from the Apartment (after the altercation that ultimately developed there) without having found and retrieved the medication that they claim was badly needed and the object of their visit, Mr. Rear and Ms. Wheeler did not pursue other measures to secure relief for Mr. Rear from his allegedly worsening and “severe” asthmatic symptoms. The option put to Mr. Rear that he might have carried on to the emergency ward of a nearby hospital to receive treatment or an emergency supply of ventolin was dismissed by him summarily.

His evidence was that, despite the urgent need for ventolin that had dictated his decision to attend at the Apartment in the company of Ms. Wheeler in the first place, after leaving there empty-handed he and Ms. Wheeler simply proceeded from the Apartment over to the Royal Towers Hotel to drink beer together. They did so on foot —a distance of six to seven blocks. After that, they went back to Ms. Wheeler’s apartment— again on foot and this time uphill —and retired for the night. Mr.

Rear’s evidence was that he had decided that he would just “tough it out” until the next day and get some ventolin then. [ 53 ] This surely is compelling evidence that both Mr. Rear and Ms. Wheeler greatly exaggerated the seriousness of the asthma attack when seeking to justify their trip to the Apartment on medical grounds, invoking as its rationale the hope of retrieving Mr. Rear’s ventolin there. If Mr.

Rear was “in extreme discomfort”, suffering a 7/10 level asthmatic incident, and in serious enough need of his medication to require a trip to the Apartment with all of the potential that that held for an eruption of conflict, then surely it was serious enough to require further effort to secure ventolin that night when, after the trip to the Apartment did lead to a violent encounter, none of the needed medication was retrieved. As was noted in cross-examination, Mr. Rear could have attended at a hospital emergency department to receive treatment and an emergency supply of ventolin, or both.

He did not attend at a hospital. He did not obtain treatment. He did not obtain a temporary supply of ventolin to get himself through the night. Rather, after their fraught attendance at the Apartment, he and Ms. Wheeler went to the pub to drink beer. And they did so on foot , cognizant that exercise is known trigger for Mr. Rear’s asthmatic symptoms. Moreover, after drinking their beer they walked four to five blocks home, uphill , to Ms. Wheeler’s apartment.

The evidence of this behaviour severely undermines the contention of both that their real reason for attending at the Apartment was to deal with a medical emergency. (

d) Conclusion regarding the quest for Mr. Rear’s ventolin inhaler [ 54 ] I repeat that I have spent considerable time on the alleged innocent motivation for the attendance of Ms. Wheeler and Mr. Rear because it colours the entirety of the evidence they gave at trial. Given the testimony that I have canvassed above, I simply cannot accept as truthful the evidence of either accused that their purpose in attending at the Apartment on the alleged offence date was to retrieve, in exigent circumstances, Mr. Rear’s asthma medication from that place.

Accordingly, I reject their evidence that their trip to the Apartment on the night in question was actuated by that, or any, innocent purpose. Intent to Intimidate J.G. to Leave the Apartment [ 55 ] In the preceding paragraphs I have explained why I have concluded that the purpose for Ms. Wheeler and Mr. Rear’s attendance at the Apartment on June 15, 2012, was not —as the accused have testified—to retrieve Mr. Rear’s ventolin inhaler. I now turn to the evidence that speaks to what the true motivation for that visit was . [ 56 ] Ms.

MacRae, for the Crown, submits that the evidence led at trial supports an inference that the true purpose for the visit made by both accused to the Apartment on the alleged offence date was to intimidate J.G. into leaving it. I am persuaded by Ms. MacRae’s arguments, citing the relevant evidence, that an intention to intimidate was indeed what served as the motive for Ms. Wheeler and Mr. Rear’s attendance at the Apartment on the evening when the altercation broke out. [ 57 ] It will be recalled from the discussion of the evidence earlier in these reasons that Mr.

Rear had a better claim to rights of occupancy to the Apartment than did his sub-tenant, J.G. Circumstances between them had soured to the point where, with police assistance, Mr. Rear had taken steps to serve a 15-day eviction notice on J.G., effective June 28, 2011. Thus, there is no room for argument that Mr. Rear wanted J.G. out of the Apartment when he and Ms. Wheeler visited it on June 15 th . [ 58 ] Ms. Wheeler’s evidence was that she was not working at the time and that she and Mr. Rear had chosen to co-habit in order to save money. Indeed, she testified that they had been co-habiting at Ms.

Wheeler’s one-bedroom apartment for some time in an on-and- off way and that they had been looking at more suitable, larger places to which to move. She was aware that Mr. Rear had served an eviction notice on J.G. and confirmed that the Apartment was one of the options they had in mind. However, it was (in her words) a “toss up” whether they would get that place because they “didn’t know if she [J.G.] would vacate that one for us”. [ 59 ] Mr. Rear’s evidence on the plan of both accused to co-habit contradicted the rather elaborate testimony of his co-accused on that subject.

He denied that they had any intention of finding accommodation together, insisting that he had only stayed, on and off, with Ms. Wheeler as an interim measure. However, the evidence shows that some weeks following the altercation, Ms. Wheeler and Mr. Rear did move into the Apartment together—conduct that corroborates and makes Ms. Wheeler’s testimony on the point more believable than that of Mr. Rear. I find that at the time of the altercation, therefore, that Ms. Wheeler and Mr.

Rear had a common purpose in finding a two-bedroom suite where they could reside together and that they saw the Apartment as a possible solution to their need for such accommodation. [ 60 ] The evidence reveals that J.G. had shown some resistance, if not intransigence, in the face of Mr. Rear’s efforts to dislodge her from the Apartment—accommodation that I have found he and Ms. Wheeler wished to occupy. On June 15 th he and Ms.

Wheeler attended at the Apartment and, very swiftly after their arrival, a physical altercation broke out that left both J.G. and her daughter, the complainant R.M., with much more serious injuries than those claimed to have been suffered by Ms. Wheeler. [ 61 ] I have rejected as untruthful the evidence given by both accused as to there being an innocent purpose for attending at the Apartment—that is, the purpose of retrieving Mr. Rear’s ventolin inhaler. They gave no other explanation for their visit. In the

circumstances, the evidence as a whole supports an inference that both Mr. Rear and Ms. Wheeler attended at the Apartment—a place where both were very keenly aware their presence was unwelcome—in order, through intimidation, to improve the likelihood that J.G. would comply with the eviction notice that Mr. Rear had served upon her two days previously and thereby open up the Apartment for occupation by them. I so find.

What Actually Occurred During the Altercation [ 62 ] The evidence led at trial regarding the actual, moment-to-moment sequence of events as it unfolded in the course of the altercation at the Apartment on June 15, 2011, is confusing. To be candid, none of the key witnesses in this regard—that is, the complainants and the accused—were entirely satisfactory. All, in their individual ways, gave accounts that were in my opinion shaped and shaded to some degree to serve their respective interests in these proceedings.

As I noted at the beginning of these reasons, allegiances and grievances between and among those four key players dictated in some respects the ways they presented their evidence, complicating the fact-finding process. For all of these reasons I approach the testimony of the complainants and the accused in this regard somewhat warily. [ 63 ] Moreover, as most witnesses sought to emphasise, once the altercation erupted, everything happened very quickly. No witness was positioned in such a way as to afford him or her a continuous and unobstructed view of the subject events.

Many months had elapsed between the altercation itself and the offering of testimony about it at trial.

I am not surprised that witnesses had difficulty reconstructing and recounting, as if in a real-time narrative re-enactment, precisely what happened and when and in what order in the course of a melee involving three principal actors and one peripheral one. [ 64 ] An unavoidable consequence of what I have just described is that I am unable on the evidence before me to make factual findings in the nature of a real-time narrative reconstruction of the altercation that is at the centre of controversy in this case. [ 65 ] I readily acknowledge, again, that some of the heterogeneity of the evidence concerning the specifics of the altercation is found within the Crown’s case.

The complainants J.G. and R.M., for example, gave differing accounts with respect to the way that Ms. Wheeler allegedly positioned herself vis-à-vis J.G. immediately before beginning to threaten to punch her with a closed fist. By J.G.s own account, Ms. Wheeler straddled her while she was still on a love seat; by R.M.’s account Ms. Wheeler stood at the side of the love seat but leaning over it in a threatening way. Several other inconsistencies like this emerged in the accounts given by Crown witnesses inter se and defence witnesses inter se.

It thus being impossible to recreate in factual findings the altercation in all its nuanced detail, I consider that it would profit no one for me to offer a lengthy catalogue of those inconsistencies. [ 66 ] There are, however, certain key facts pertaining to the altercation that are susceptible of definitive findings. Those key facts— which are provable largely by recourse to the evidence of the accused themselves—coupled with the facts I have already found concerning the purpose of Ms. Wheeler and Mr.

Rear for attending the Apartment on the night in question, can and shall serve as the foundation for determinations of criminal liability on the part of both accused. (

a) What action triggered the altercation? [ 67 ] Leaving to one side the violent manner in which the accused gained entry to the Apartment, I have closely scrutinised the evidence regarding the initial eruption of person-to-person, physical conflict at the Apartment, once all four actors were gathered in the living room there. I have done so believing that that evidence will supply an important piece of the puzzle in this case. [ 68 ] It is clear from that evidence that Ms. Wheeler was the first to make nonconsensual physical contact with the complainant J.G.

She did so when, after entering the Apartment and hearing J.G. cry out “Get that fucking bitch out of here,” she saw J.G. reaching for something. There was, at that point, nothing happening of a physically violent nature. There was nothing, in other words, stopping her from simply retreating from a place where she knew she was plainly not wanted. Ms. Wheeler agreed on cross-examination that that option, indeed, was open to her. She did not take that option. [ 69 ] In Ms. Wheeler’s own words spoken during her evidence-in-chief, Ms.

Wheeler grasped J.G.’s hand because seeing her reach down and grab for something “gave [her] a sense of danger”. Despite contrary suggestions put to Crown witnesses in cross-examination, the evidence is clear and I find that J.G. did not make any threatening gesture with the “something” that she grabbed for. Indeed, Ms. Wheeler caught J.G.’s hand almost as soon as J.G. got hold of what she was reaching for. That “something” was a cellphone. J.G.’s evidence—which I accept—is that her intention was to use the cellphone to call the police.

That intention fits perfectly into a scenario in which, at a time of growing conflict, J.G. is confronted by two unwelcome visitors in her Apartment who have gained entry by breaking through the door and who have not said anything about being on a mission to retrieve a ventolin inhaler or about being present for any other innocent purpose. [ 70 ] It would have quickly become apparent to Ms. Wheeler, on her own evidence, that her “sense of danger” was misplaced. What she found in J.G.’s hand was not a club, or a gun, or a knife, or any other kind of weapon.

It was a cellphone that J.G. had not even raised or brandished in a threatening manner. If, as she testified, she had no colourable purpose for being there—no intention to intimidate— she might have curtailed the escalating violence then and there by returning what she now knew was not a weapon to J.G. She did not do so. Rather, Ms. Wheeler tossed the cellphone a considerable distance from the living room into the kitchen. [ 71 ] That conduct was aggressive and provocative conduct and it was almost certain in the circumstances to increase the likelihood of reactive physical violence, given that Mr. Rear and Ms.

Wheeler had forcibly entered a place where Ms. Wheeler knew they were both profoundly unwelcome. [ 72 ] By physically preventing J.G. from using her cellphone and, upon wresting it from her grip, throwing the cellphone from the living room into the kitchen, Ms. Wheeler set in motion the sequence of events that, together, constitute the altercation giving rise to the charges against her and Mr. Rear. I find that Ms. Wheeler’s actions betray a clear intention to act, physically, in an aggressive and intimidating fashion toward J.G. (

b) Ms. Wheeler’s actions toward R.M. following the commencement of the altercation

[ 73 ] There followed, in the wake of Ms. Wheeler’s provocative actions of wresting J.G.’s cellphone from her grip and then throwing it into the kitchen, an intervention by the complainant R.M., J.G.’s daughter. I accept that matters became physical between Ms. Wheeler and R.M. when R.M. intervened on the heels of the physical exchange that occurred between Ms. Wheeler and her mother. That is to say, R.M. entered a violent spectacle that was already in progress which had been instigated by Ms. Wheeler and which appeared to expose J.G. to danger of further violence. [ 74 ] Both Ms.

Wheeler and R.M. quickly ended up rolling around on the floor, locked in a struggle; precisely how and in what configuration isn’t susceptible of precise factual determination but I find that R.M. first applied force to Ms. Wheeler in order to separate her from and protect J.G. R.M.’s actions thus amount at law to “self defence” in the sense of defence of another. [ 75 ] But in the short minute or two of struggle that followed, Ms. Wheeler by her own admission administered several blows to R.M., including blows to the face.

The photographic evidence confirms that those blows drew a substantial amount of blood and left clear markings on R.M.’s face and body. [ 76 ] In my judgment, Ms. Wheeler’s forceful and repeated punching of R.M. in these circumstances can only be interpreted as a continuation and escalation of the violence she displayed initially toward J.G. that triggered the physical aspect of the altercation. She knew by the time that R.M. intervened that J.G. had no weapon, thus she had no subsisting, legitimate “sense of danger”. Her act in throwing the cellphone into the kitchen was

an act of provocation; she could have de-escalated the situation by returning the cellphone and backing away from J.G. She did neither. Rather, she remained standing in a threatening posture vis-à-vis J.G. (whether she was straddling her or leaning over her is immaterial). Ms. Wheeler threw away J.G.’s cellphone and left R.M. little alternative but to try to intervene to protect her mother. When R.M. did intervene, Ms. Wheeler responded disproportionately, punching her repeatedly, leaving R.M. with multiple cuts, scrapes, abrasions and bruises. This pattern of behaviour on Ms. Wheeler’s

part is emblematic of her purpose, and Mr. Rear’s, in attending the Apartment, that being to intimidate its occupant. (

c) Ms. Wheeler’s actions toward J.G. when the altercation spilled into the dining area [ 77 ] When the struggle between Ms. Wheeler and R.M. ended, R.M. took refuge in a bathroom and placed a 911 call on her cellphone. Ms. Wheeler then moved from the living room into the dining area where Mr. Rear had gone (to search for his ventolin inhaler, she said). J.G. was in the same area, standing near Mr. Rear, possibly speaking on her cellphone. Importantly, Ms. Wheeler did not say that J.G. was physically preventing Mr. Rear from doing what he wished to do in the dining area.

She did say that she went to that location to assist Mr. Rear in finding what he was looking for. [ 78 ] I do not find the latter-mentioned evidence to be in the least credible. Ms. Wheeler had never been to the Apartment before. She gave no evidence to suggest, let alone prove, that she had any idea where a ventolin inhaler might be stored in the Apartment. She could therefore not add any value to Mr. Rear’s search efforts. Indeed, her presence could only get in the way of such search efforts by raising the possibility of further physical violence.

She knew that her mere presence in the Apartment had brought on a very hostile reaction from J.G. when she entered the living room. She could not reasonably have expected anything different when she entered the dining area to which J.G. had moved. [ 79 ] Ms. Wheeler’s evidence regarding how she and J.G. came to blows in the dining area bears a striking similarity to the lead up to the physical confrontation they had in the living room. She described J.G. as moving in her direction with her arms flailing—that is, making an open-handed slapping motion.

She said that she “felt threatened” by this display, just as she said that she “felt a sense of danger” when, minutes earlier, J.G. had reached for her cellphone. [ 80 ] Here again, there was nothing stopping Ms. Wheeler from simply backing away and attempting to defuse the situation. She did not do so. Rather, by her own admission Ms. Wheeler advanced toward J.G. (closing what she said was a five foot gap) and got her down onto the floor. She was clear in her evidence on cross-examination that she grabbed hold of J.G. by the arms and “put her to the ground”.

She also admits that “it is possible I hit her” at this stage. [ 81 ] Ms. Wheeler, who was 31 at the time, acknowledged during cross-examination that J.G. was substantially older, smaller, more frail and less healthy than she was. She also acknowledged the presence of avenues of escape that were available to her at that time. Ms. Wheeler’s evidence that she felt threatened by J.G. and thus justified in applying what she described as “defensive” non-consensual force to J.G. beggars belief. [ 82 ] Once she had gotten J.G. to the ground and, thus, neutralised to some degree the “threat” she says J.G. posed, Ms.

Wheeler didn’t stop. Ms. Wheeler testified that while J.G. was down and kicking she in turn “smacked” and punched J.G. in the face. That she did so is borne out by the markings on J.G.’s face and body revealed in the photographic exhibits. [ 83 ] In my judgment, Ms. Wheeler’s actions in the dining area, like her actions in the living room, were not those of a person bent upon assisting her companion, Mr. Rear, in retrieving his asthma medication. Rather, they are actions emblematic of her true purpose, and Mr.

Rear’s, in attending the Apartment, that being to intimidate J.G. and thereby maximise the prospects of her swift departure from it. (

d) Mr. Rear’s conduct throughout the altercation [ 84 ] On my assessment of the evidence, of the two accused Ms. Wheeler was the sole physical aggressor during the altercation with the complainants at the Apartment on June 15, 2011. Mr. Rear, by contrast, played a less active—but nevertheless enabling—role. [ 85 ] Mr. Rear did not become directly involved as a combatant in the physical encounter between Ms. Wheeler and J.G. (first in the living room and next in the dining area), or in the physical encounter between Ms. Wheeler and R.M. (in the living room only). [ 86 ] I find that the nearest Mr.

Rear got to direct participation in the violence was, at one point, to block J.G.’s movement when she appeared to him to be minded to join the physical struggle that was ongoing between Ms. Wheeler and her daughter, the complainant R.M. However, by simply interposing himself between the two combatants and J.G.—even if J.G. made physical contact with him

during this blocking manoeuvre (which is not clear)—Mr. Rear did not apply force to J.G. W.D. DETERMINATIONS [87] Facts are proven by credible evidence that is believed. Evidence that is not believed is "no evidence": see R. v. Proudlock(1978), (SCC), 5 C.R. (3d) 21 (S.C.C.). [88] It should be clear from all that has been said above that, from the standpoint of the augmented R. v. W.D. formulation, I whollyreject the exculpatory evidence given by both accused in their own defence regarding their purpose for attending at the Apartment. Onthe key issues, I simply don’t believe their testimony.

I find that it is incapable, even, of raising a reasonable doubt in my mind. [89] As I have said, the exculpatory evidence given by both accused lacked an air of reality. It was frequently inconsistent. I havepreviously given examples of such inconsistencies. I could give many more but, in what I regret seems to be a failing effort to confinethese reasons to a tolerable length, I will mention only a few. [90] Ms. Wheeler was clear in her testimony that upon wresting J.G.’s cellphone from her grip, she threw it and that it landed in thekitchen.

This is an important admission regarding a provocative act that I have found further escalated the conflict and confirmed thepurpose both accused had for being in the Apartment. Mr. Rear—no doubt recognising the troubling significance of that evidence forthe defence of both accused—testified that upon wresting J.G.’s cellphone from her grip, Ms. Wheeler then merely dropped it. However,this evidence—which, if believed, would cast Ms. Wheeler’s actions in a more positive light—contradicts the inculpatory admission thatMs. Wheeler made herself and against her own interest. Such testimony persuades me that Mr.

Rear was more concerned about givingevidence that was congenial to his interests and Ms. Wheeler’s, as accused, than he was about giving evidence that was truthful. [91] A similar thing happened with regard to the issue of the force that Mr. Rear applied to the door of the Apartment to gain entryto it on June 15, 2011. Twice Mr. Rear used the word “nudge” to minimise the action he used to force the door open—an action thatinvolved sufficient force to cause the interior door jamb moulding to tear away and the door itself to bang against an adjacent wall.

Ms.Wheeler, too, used the word “nudge” to describe that action during her direct examination. However, even she had to concede, whenbeing questioned by Crown counsel Ms. MacRae, that Mr. Rear gave the door a “shove”. Attempts like these to minimise that which isnot capable of being minimised detracted markedly from the credibility of both accused. [92] During his evidence-in-chief, Mr. Rear sought to downplay the foreseeability of the risk that his attendance at the Apartment inthe company of Ms. Wheeler would provoke a hostile reaction from J.G.

When questioned on the point by his own counsel about thereception he anticipated, Mr. Rear answered breezily, saying that there was “no telling … sometimes she’s in a good mood andsometimes bad … sometimes she’s nice to me to get me to come home and sometime’s she’s mean”. Yet, under cross-examination Mr.Rear admitted that he had very serious concerns about J.G.’s reaction to their arrival and that the same kinds of concerns led him tosecure a police escort on the visit he made to the Apartment on June 13, 2011. He also confirmed under cross-examination that when he and Ms.

Wheeler attended at the Apartment on June 15th, he anticipated that the reception that would await them “more than likelywould be bad”. Mr. Rear said, in further answer to Crown counsel Ms. MacRae’s questioning, that J.G. had used the epithet “fuckingbitch” to describe Ms. Wheeler no fewer than 100 times prior to the night of the altercation, yet he brought her along with him on anostensible mission to obtain his medication. [93] Mr. Rear’s testimony during his direct and cross-examinations in this area is irreconcilable. These inconsistencies regarding theforeseeability of conflict should Mr. Rear and Ms.

Wheeler attend at the Apartment go to the heart of some of the most important issuesin the case and they cannot be resolved to the benefit of the accused. [94] I have already mentioned Ms. Wheeler’s inability to coordinate her story about her cat with the story told in that regard by Mr.Rear. Both recognised that the fact that Mr. Rear had chosen to live in an apartment with Ms. Wheeler where a cat resided (pets being a“big” trigger for asthma attacks) raises questions about the degree to which he truly suffers from asthma; however, in their efforts toneutralise the problem, one accused (Ms.

Wheeler) gave sworn evidence that she thought the cat had run away and the other (Mr. Rear)testified under oath that the cat was only a kitten and hypoallergenic. [95] In my view, the two accused were no more successful in getting their stories to harmonise on this somewhat important issuethan they were on the important issue of their intentions to rent an apartment together (Ms. Wheeler—that was our intention; Mr. Rear—we had no such intention). CONCLUSIONS AND DISPOSITION Ms. Wheeler [96] The facts as found establish that Ms.

Wheeler intentionally applied force to both R.M. and J.G. without the consent of either. She did so by grabbing each of them and punching them repeatedly in the face and elsewhere in the course of violent exchanges, both ofwhich she initiated with her own violent and provocative conduct and both of which fit into the larger picture of her motive for beingpresent with Mr.

Rear in J.G.’s apartment—namely, to intimidate J.G. into vacating that apartment as soon as possible. [97] The Crown’s case for the assault against J.G. being one for assault causing bodily harm turns largely on photographic evidenceshowing J.G. holding a handful of hair on the night in question and her testimony that Ms. Wheeler had pulled that hair out in the courseof the scuffle in the dining area.

However, given the failure of the officers who took the photographs to secure any images of a place orplaces on J.G.’s head from which the hair was allegedly pulled, the evidence linking the hair to the altercation at issue in this case is

deficient and unsatisfactory. Bodily harm with regard to the assault against J.G. is not, therefore, established. [ 98 ] Given the factual findings I have made regarding Ms. Wheeler’s purpose for attending at the Apartment with Mr. Rear, and the manner in which physical hostilities were initiated by her in the scuffles that occurred in both the living room and the dining area, there is no room for any argument that at any point throughout the entire transaction Ms. Wheeler acted out of self-defence. [ 99 ] Being convinced beyond a reasonable doubt by the evidence I have accepted that Ms.

Wheeler intentionally applied force to each complainant without the consent of either, I find Ms. Wheeler: (

a) guilty on count one of the lesser included offence of assaulting the complainant J.G., contrary to section 265(1) (

a) of the Criminal Code ; and (

b) guilty on count two of the lesser included offence of assaulting the complainant R.M., contrary to section 265(1) (

a) of the Criminal Code . Mr. Rear [ 100 ] The facts as found establish that Mr. Rear and Ms. Wheeler attended at the Apartment on the offence date for the unlawful purpose of intimidating its occupant, J.G., into vacating it given, inter alia , his need, and that of Ms. Wheeler, for accommodation with the characteristics of the Apartment for themselves. The altercation that unfolded once Mr. Rear forced open the latched door was, unquestionably, an intimidating event initiated by both accused.

It left the intended target J.G. (and her daughter R.M., who happened to be visiting) intimidated and physically traumatised. [ 101 ] Mr. Rear arranged the visit to the Apartment for an unlawful purpose. He knew that his attendance there, in the company of Ms. Wheeler, would serve to intimidate J.G. He knew that a violent altercation was the probable consequence of that attendance. He reasonably believed that if such an altercation took place, the chances of J.G.’s swift departure from the Apartment would be improved. [ 102 ] Mr.

Rear facilitated entry into the Apartment knowing that its door had been secured to prevent such entry. His actions overall maximised the likelihood of a confrontation. Mr. Rear thus in every sense created the necessary conditions under which the violent and intimidating sequellae to his arrival at the Apartment with Ms. Wheeler would unfold— sequellae that he both knew and intended would occur. Mr. Rear took no active steps to curtail the violent assaults wrought by Ms.

Wheeler upon both J.G. and R.M. once those assaults began to occur. [ 103 ] Being convinced beyond a reasonable doubt by the evidence I have accepted that Mr. Rear aided, abetted and assisted Ms. Wheeler in the commission of the assaults she committed against J.G. and R.M. in pursuit of the intention she had in common with him to intimidate J.G., I find Mr. Rear—pursuant to s. 21 of the Criminal Code —guilty as a party to the assaults committed by Ms. Wheeler against J.G. and R.M. [ 104 ] Orders accordingly. __________________________ Thomas S. Woods, P.C.J.