R. v. Barkley Date:, 2015 BCPC 265

Citation: R. v. Barkley Date: 20150916 2015 BCPC 0265 File No: 77942-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUSTIN WILLIAM BARKLEY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: K. Paziuk Counsel for the Defendant: A. P. Hertzberg Place of Hearing: Nanaimo , B.C. Dates of Hearing: February 5, 2015, May 25, 2015 Date of Judgment: September 16, 2015

Introduction [1] THE COURT (orally): Justin William Barkley is before the court on two separate charges arising out of an incident on hisrural rental property in Bowser, British Columbia, in the late evening of October 14, 2013. [2] Mr.

Barkley (hereinafter called the "Accused") is alleged to have assaulted Marcus Brown (hereinafter called the"Complainant"), contrary to s. 266 of the Criminal Code, and, in relation to a motor vehicle owned by the Complainant, to havingcommitted mischief in a value not in excess of $5,000 by wilfully damaging the motor vehicle contrary to s. 430(4) of the CriminalCode. [3] The evidence of both the Complainant and the Accused is consistent insofar as the time and the location of two relatively briefencounters between the two of them occurring within a compressed timeframe.

It is during the second encounter where the offences arealleged to have occurred. The Complainant and the Accused were the only people present during most of these two encounters.

Theyprovide significantly different versions of what they say actually occurred. [4] The Complainant and RCMP Constable Bruce Nicholson testified as Crown witnesses. [5] The Accused and his girlfriend, Kaitlyn Box, testified on behalf of the defence. [6] As the trier of fact on these charges, I must determine whether I am satisfied, on the whole of the evidence, that Crown hasestablished beyond a reasonable doubt that the Accused assaulted the Complainant, and that the Accused also committed mischief bywilfully causing the alleged damage to the Complainant's vehicle. [7] Parenthetically, this case is instructive about the potentially serious consequences flowing from the misinterpretation of theubiquitous text message in the electronic age, or what defence counsel characterized as "the infernal world of text messaging".

Presumption of innocence and reasonable doubt [8] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt. If that occurs, then and onlythen can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [9] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.

Reasonable doubt is adoubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty, since that would be animpossibly high standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities. (See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 , [2000] 2S.C.R. 144) The W.(D.) formulation [10] I must instruct myself that in the trial of criminal matters it is not a question of which witnesses' evidence or version of theevents I believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [11] Where there is evidence of an accused that raises a defence, as is the case in this matter, then I must further instruct myself andI must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742found at paragraph 28: First, if [I] believe the evidence of the Accused, obviously you must acquit. Second, if [I] do not believe the testimony of the Accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the Accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [12] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H., 2012 PECA 6, [2012]P.E.I.J. No. 10 at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence takenas a whole raises a reasonable doubt . . .

Proper application of the third step involves moving the focus from the evidence of the accusedto the Crown's evidence and assessing it in its own right (in relation to all the evidence) on the criteria of coherency, reliability,credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringing evidence that can prove guilt beyond areasonable doubt . . . The Supreme Court of Canada recently stated in R. v.

J.H.S. 2008 SCC 30 , at ¶8, that a series of decisionshas affirmed and reaffirmed that where credibility is a central issue in a jury trial, the judge must explain the relationship between the

assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt . . . [13] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J.

No. 2735, adds afourth step to the W.(D.) analysis, namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted. Josiah Wood J.A. (as he then was) suggests thatlogically this ought to be second in order in the W.(D.) analysis. [14] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection.

Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v. S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) [15] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility of thewitnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence.

In so weighing the evidence, I mayreject or accept some or all of the witness's testimony, after having taken into account a multitude of factors which include, but are notlimited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or externalconsistency. [16] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [17] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094.) Assessing credibility and reliability of witnesses [18] Here I have heard evidence that is conflicting on material matters regarding the two alleged offences, and I must assess thecredibility and the reliability of those witnesses who have provided this conflicting evidence. [19] In doing so, the testimony of each of the witnesses can be considered from three perspectives:

a) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying;

b) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [20] In the recent case of R. v.

Cuhna, 2015 BCPC 60 at paragraphs 5 and 6, the Honourable Judge Merrick provides a useful reviewof the factors to be considered when assessing the testimony of a witness from these three perspectives: Truthfulness [21] Relevant factors for truthfulness include: previous inconsistent statements or occasions on which the witness has beenuntruthful; inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with thetestimony of the witness and the attitude and the demeanour of the witness.

However when considering demeanour, it is important toconsider all the possible explanations for the witness's attitude, and to be sensitive to individual and cultural factors that may affectdemeanour. Objectivity [22] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'sexpectations, the assumption of unproven facts, or by subsequent events. Accuracy [23] Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period ofobservation and the circumstances of the witness's observations.

The reasons for recalling an event and the length of time betweenwitnessing an event and providing testimony about it may affect the accuracy of the witness's testimony and hence its reliability. Somewitnesses may have difficulty communicating their evidence clearly, due to factors such as nervousness.

Summary of the undisputed evidence [24] Prior to the incidents giving rise to the allegations, the Complainant and the Accused were not acquainted with each other, butknew of each other. The Complainant was acquainted with Shayna Box, who at the time was 17 years old, and the younger sister ofKaitlyn Box, and also with Kaitlyn Box herself. As noted above, Kaitlyn Box is presently, and was at the time of the incident, thegirlfriend of the Accused and resided with him. The Complainant and Shayna Box were described as "texting friends". TheComplainant knew that Shayna Box had a steady boyfriend who apparently lived in Nanaimo.

[ 25 ] The Accused and Kaitlyn Box resided together in the Bowser rental property at the time of the incident. They occupied the top floor of the residence. The bottom floor was sublet by the Accused to a tenant. Often Shayna Box spent nights with her sister and the Accused at that residence. On other occasions she stayed with her boyfriend in Nanaimo.

The Accused often transported Shayna Box to and from Nanaimo to see and to be with her boyfriend and to leave his company. [ 26 ] On one prior occasion, about a week before the incident that gave rise to these charges, the Complainant had, at her request, driven Shayna Box home to Bowser and had dropped her off at the top of the fairly long driveway leading into the residence.

He testified that he did not proceed down the driveway due to concerns about the potholes in the crushed gravel covering the driveway, and the concern about going down into the potholes and thereby causing the lower portions and the low bumpers on the vehicle coming into contact with the ground. [ 27 ] On October 14, 2013, Shayna Box was present at that Bowser residence for a family Thanksgiving meal. [ 28 ] The Complainant was in Victoria, a fairly lengthy drive south of Bowser. Bowser is located north of the community of Qualicum Beach, British Columbia.

At that time, the Complainant resided with his parents in Qualicum Beach in a location which was apparently a five-minute drive away from the Bowser residence of the Accused. [ 29 ] As a result of a text exchange initiated by Shayna Box to the Complainant, commencing around 7:06 p.m. and continuing between them until 8:18 p.m., the Complainant and Shayna Box arranged to meet that evening when the Complainant returned to the Bowser area. In response to the Complainant's question: "Your house or mine?" Shayna Box specified "Yours" in a text sent around 8:17 p.m.

"Your house" referred to in the Complainant's question was apparently understood by the Complainant to be the Accused's residence, where the Complainant had previously dropped off Shayna Box. [ 30 ] At around 8:18 p.m. the Complainant texted back to say that he would be returning back to Bowser between 10:00 and 11:00 p.m. The Complainant sent another text en route, around 10:28 p.m., to which no response was forthcoming.

It stated that he had downloaded a particular movie, presumably to be viewed that evening. [ 31 ] Instead of proceeding to his own residence upon arriving in Bowser, the Complainant drove to pick Shayna Box up at the Accused's residence and proceed up the gravel driveway, arriving outside the residence at approximately 11:22 p.m. [ 32 ] The Complainant owned and was then driving a 1991 Nissan Skyline two-door coupe that had the driver's wheel located on the right-hand side.

During the period in question, the Complainant was in the midst of a continuing process of completing bodywork on and painting that vehicle. [ 33 ] The Complainant waited with his vehicle engine running.

He did not proceed to knock on the door of the residence in order to announce his arrival to Shayna Box or, for that matter, to any other resident who was present. [ 34 ] Upon his arrival outside the residence, and according to copies of the text messages admitted into evidence, the Complainant sent a text message around 11:22 p.m. to Shayna Box stating, "Hey just got here." At 11:32 p.m., Shayna Box's text response sent to him was, "Why". [ 35 ] According to his evidence, the Complainant said that he did not see that 11:32 text response from Shayna Box until after the altercation between himself and the Accused had occurred.

The Accused takes issue with that suggestion. [ 36 ] Following the second encounter between the Complainant and the Accused, the Complainant sent a further text to Shayna Box at 11:39 p.m. that stated, "What the fuck was that". [ 37 ] What the Complainant did not know, but what the Accused knew, is that Shayna Box had spent the evening at the Accused's residence consuming a significant amount of alcohol, to the point that she became intoxicated and nauseated.

Around the time of the Complainant's arrival, she was in the process of vomiting in the bathroom of the residence. [ 38 ] As the Complainant was waiting, he observed a man dressed in sleepwear, who as it turns out was the Accused, come out of the top of the residence and proceed down the stairs and move towards the Complainant's vehicle.

This initiated the first encounter between the Complainant and the Accused, which was not confrontational in nature but generally described by the two parties as civil and polite. [ 39 ] From that point, there is a significant divergence in the evidence as related in the respective testimonies of the Complainant and the Accused. [ 40 ] What is common about the two versions is that there was a second encounter shortly thereafter between the Complainant and the Accused.

It was confrontational and gave rise to allegations made by each of the Complainant and the Accused that they were assaulted by the other, and the further allegation made by the Complainant that the Accused caused damage to the Complainant's vehicle.

Summary of the Complainant's evidence and his version of events [ 41 ] The Complainant testified that on the day of the incident he was 19 years of age, stood five foot 10 inches tall, and weighed approximately 165 pounds.

He worked at a gas station in Bowser. [ 42 ] Notwithstanding that Shayna Box had stipulated in her text that they would be getting together at his house, the Complainant testified that he just assumed that he was to pick her up at her residence, assuming also that she did not have a driver's licence or an available vehicle, and given it was quite a distance between her location and his residence. [ 43 ] The Complainant presumed that the individual coming out of the house was the Accused, whom he knew by name but had never met.

[ 44 ] According to the Complainant, the Accused approached the Complainant's vehicle in which he says he was then seated. [ 45 ] The Complainant testified that the Accused was nice and polite, and that they engaged in a brief, civilized discussion, while he remained seated in his vehicle with the engine running.

He explained to the Accused that he was there to pick up Shayna Box. [ 46 ] According to the Complainant's further testimony, the Accused said words to the effect, "I will go up and see her" or "I will go up and speak to her" or "I will go up and check with Shayna." The Accused departed and returned into his residence. [ 47 ] The Complainant denies that the Accused also said words at that time to the effect that the Complainant better not still be there when he returned, if he was not supposed to be there.

In other words, if Shayna Box was not expecting him, then he should leave immediately. [ 48 ] The Complainant said that he would have departed immediately if that statement had been made to him, because he understood from his previous discussions with Shayna Box that the Accused "was not the nicest person" and she had also described the Accused to him as "not the most friendly person".

There is no evidence as to whether or not the Complainant was aware of the Accused's prior convictions in 2008 for assault with a weapon and aggravated assault, and his 2009 conviction for assault with a weapon, to which the Accused admitted in his evidence. [ 49 ] The Complainant then testified that after a period of time, being sometime after 11:22 p.m. and before 11:32 p.m., the Accused then appeared from the residence and the second interaction occurred between the Accused and the Complainant. [ 50 ] The Complainant says that the Accused came out of the residence and moved quickly down the stairs, ripping off the top of his clothes.

The Complainant also conceded under cross-examination that the Accused may have tripped on his housecoat, causing it to come off, thereby leaving the Accused bare chested. [ 51 ] The Complainant testified that the Accused's attitude had gone from polite during the first encounter to confrontational and aggressive in this second encounter.

The Accused used a profanity and, by way of a rhetorical question directed at the Complainant, asked what the Complainant was still doing there and stated that Shayna Box did not want to see the Complainant. [ 52 ] In the Complainant's version, the Complainant remained seated in his vehicle and, in particular, was never outside of his vehicle during this second encounter. [ 53 ] Before he had a chance to leave the Accused's property, the Complainant testified that the Accused approached the right-hand driver's side of the vehicle and started to punch him with a closed fist through the open window.

The Complainant stated that at the same time that he, the Complainant, was attempting to protect himself by rolling up his window, that he was also lifting up his hands in an attempt to block the multiple punches directed towards his head and face by the Accused. [ 54 ] The Complainant said he was "50 percent sure" that he received contact from 10 to 15 punches thrown by the Accused. The Complainant testified that he sustained bruising on his forearms and received some fist contact to his head, and received a sore head as a result of being punched twice beside his right ear.

His skin surface was not broken. [ 55 ] The police did not take any pictures of these injuries allegedly sustained by the Complainant, although he says that he told the police about them. He indicated the bruising that he sustained did not immediately appear. He did not request the police to photograph any of the bruising that he says he sustained. [ 56 ] The Complainant denied striking or having any other physical contact with the Accused, except to raise his arms in a protective manner to block the punches.

He testified he did not consent to nor wish to participate in a fight with the Accused, nor did he threaten the Accused. The Complainant further says that he said to the Accused, who was throwing the punches at him, "Buddy stop," to which the Accused replied, "I am not your buddy," and continued to throw punches at the Complainant. [ 57 ] The Complainant says that he cannot recollect whether the vehicle lights were on while he was waiting.

He denies that he was revving his engine or engaging the clutch, such that rear wheels were grabbing into the gravel driveway, prior to Accused's first arrival and the first encounter. [ 58 ] In his testimony, the Complainant recalls the Accused standing at the front of the vehicle, illuminated by the vehicle headlights. The Complainant stated that the Accused smashed the vehicle's front windshield with his hands, causing a number of new cracks, and that the Accused hit the front of the vehicle.

His evidence was very unclear as to when this actually occurred during the course of the second encounter, and specifically in relation to the timing of the multitude of punches that he says were thrown at him while he was seated in the car, and in relation to his hasty departure across the lawn. [ 59 ] He further testified that immediately following the physical confrontation and the occurrence of the alleged assault during the second encounter, and as he was driving away from the Accused's residence, he saw the Accused reaching down and thought he was picking something up.

He did not recall seeing the Accused pick up any of the crushed gravel from the driveway. In his redirect examination, he stated that as he was backing up his vehicle and starting his departure from the scene, he was looking at the Accused, who was positioned at the front of the vehicle, bending down. [ 60 ] The Complainant admitted that, in the course of his hasty departure from the Accused's residence, to placing his vehicle in reverse gear and testified that the vehicle moved straight back, but he was not certain how far, speculating it was under 10 feet.

He says that the Accused was standing at the front of the car and was illuminated by the headlights. The Complainant says that he then accelerated his vehicle forward to leave the residential premises, turning right, back towards the driveway entrance, but in the course of doing so he drove across the lawn a considerable distance in a curved pattern. He then rejoined the driveway just before the gate entrance to the driveway, which he passed through to complete his departure. He was unable to say how far he travelled forward before straightening out the vehicle in the course of completing this departure.

[ 61 ] He denied completing a number of 360-degree circular manoeuvres or some similar manoeuvre, controlled or uncontrolled, causing the vehicle to spin or swerve around on the lawn (sometimes commonly called "donuts") or on the driveway prior to this hasty departure. He stated in his redirect testimony that, while driving across the lawn, he continued to look forward, because he did not want to hit something and then have to get out of his vehicle and run. [ 62 ] During this period of his departure, he heard his back window smash, but was unable to state the cause of it.

He did not hear any gravel hit the vehicle. [ 63 ] When questioned as to whether or not he had struck the Accused with his vehicle as he pulled away from the residence, the Complainant testified that he did not have any recollection of having done so. He denied that he caused a series of "road rash injuries" on the front and back torso, buttocks, and left ankle of the Accused.

These injuries are depicted in various photos, admitted into evidence, which were taken later that evening, following the Complainant's departure and the arrival of the RCMP at the Accused's residence. [ 64 ] There is no disagreement arising from the Complainant's evidence that upon leaving the Accused's residential property, the Complainant drove to his employer's residence. At that time, he and his employer inspected his vehicle for damage. He called the RCMP and reported the incident to them. [ 65 ] There is also no disagreement that RCMP attended to take a statement from the Complainant.

The RCMP requested that the Complainant accompany them to Accused's residence in a separate vehicle. There the RCMP spoke to the Accused and continued their investigation by taking statements from both the Accused and the other individuals at the Accused's residence. [ 66 ] There is no disagreement that Complainant's vehicle was not present at the location where the police interview of the Complainant was conducted and a statement obtained. The Complainant had initially left it at his employer's residence. Another police officer went to inspect and photograph the Complainant's vehicle.

Thereafter it was towed by the Complainant's employer to the employer's service station impound yard.

There it was subsequently inspected by the Insurance Corporation of British Columbia ("ICBC") and the RCMP, and further photographs were taken of the alleged damage. [ 67 ] Several of these photographs of the Complainant's vehicle and the alleged damage to it were also admitted into evidence. [ 68 ] The Complainant provided testimony about the alleged damage to his vehicle and, in the course of doing so, reviewed and referred to a number of these photos taken of the vehicle and indicated that most of the damage to the vehicle did not exist prior to his arrival at the Accused's residence. [ 69 ] However, except in certain cases, he could not provide specific evidence as to the cause of the damage, and similarly was unable to specifically state that certain portions of the damage were caused by the Accused. [ 70 ] With respect to the front windshield, the Complainant admitted that there was a pre-existing crack requiring the windshield to be replaced, but testified that a series of spider cracks in the lower left corner were caused by the Accused's fist hitting the windshield, and stated that they were not as a result of the vehicle colliding with the Accused as the Complainant was in the process of departing from the scene following the altercation. [ 71 ] The Complainant testified that his back window was shattered and then fell in bits into the vehicle as he was departing, and subsequently more pieces fell in when the vehicle was being towed, but also stated he "didn't know what happened there".

In other words, he was uncertain as to what or who may have caused this damage. [ 72 ] The Complainant further testified that the driver's side mirror sustained a crack, but he did not know how that had occurred. [ 73 ] In his testimony, the Complainant identified damage in the form of multiple dents and paint chips on the front hood of the car, but again stated that he could not recall how they occurred, but could only recall that the Accused was at the front of his vehicle. [ 74 ] Further, the Complainant pointed to a dent located on the right-hand driver's side door but could not say how that damage had occurred, other than to suggest that the Accused was on that side of the vehicle during the second encounter. [ 75 ] The next damage identified by the Complainant was a large crack on the lower-right rear fibreglass skirt, which had sustained some pre-existing damage.

The Complainant had previously started to repair it by drilling two holes to insert some zap straps to prevent the crack from spreading.

The Complainant was unable to say with any certainty what had caused the further damage, but conceded that it could have been caused when the vehicle "bottomed out" while travelling across the lawn. [ 76 ] Also, the Complainant identified damage in the form of a crack to the top of the wheel-well arch on the right-front driver's side fibreglass fender, which the Complainant suggested was fragile, and such damage was caused by having pressure applied to it, and then further suggesting in his testimony that the Accused was standing in the vicinity of the damage during the second encounter.

The Complainant did not testify that he observed the Accused cause this damage. [ 77 ] The Complainant reported the damage to ICBC, and its estimators inspected the vehicle and estimated the cost of completing damage repairs to the vehicle at $3,726.20. The applicable deductible for the Complainant to pay was $300. The Complainant proceeded to have the repair work completed.

Summary of the evidence of Constable Bruce Nicholson [ 78 ] Constable Nicholson testified that he was one of two investigative officers who dealt with this matter. He was dispatched around 11:34 p.m. on October 14, 2013, to investigate reports of an assault and mischief. [ 79 ] At approximately 12:20 a.m. on October 15, 2013, he met with and interviewed the Complainant. Corporal Hoffman also arrived and then departed to inspect and photograph the Complainant's vehicle.

[ 80 ] The two police officers were then led by the Complainant to the Accused's residence and arrived there at approximately 12:52 a.m. The Accused, who did not have any clothing covering his torso, met them, identified himself, and invited the police into his residence. [ 81 ] The Accused was arrested for the alleged assault and mischief. The Accused provided a statement to Constable Nicholson about his version of events and the personal injuries that he stated were suffered during his encounter with the Complainant and his vehicle.

Those personal injuries which were evident on the body of Accused were, in Constable Nicholson's view, consistent with abrasions caused when skin comes into contact with a road surface and which are frequently and commonly described as "road rash".

Those personal injuries were photographed that evening by the police and were the subject matter of cross-examination of the Complainant and the evidence of the Accused. [ 82 ] Statements were also taken from the Accused's father, Robert Barkley, and from Shayna Box and her sister, Kaitlyn Box. [ 83 ] Constable Nicholson indicated that there was evidence that alcohol consumption had taken place in the residence, but that neither Shayna Box nor the Accused showed any signs of impairment. The Defence's case

Summary of the evidence of the Accused and his version of events [ 84 ] The Accused, at the time of the trial, continued to reside with his girlfriend, Kaitlyn Box, and they have relocated and their home is in Alberta. Based on court documentation, the Accused was approximately 25 years of age at the time of the incident.

There was no evidence adduced about his weight or size but, based upon observations and photographic evidence, he appeared to be slightly larger than the Complainant and physically very fit. [ 85 ] He testified that earlier on the evening of October 14, 2013, a family dinner had taken place at his Bowser, B.C., residence attended by Kaitlyn Box, her sister Shayna Box, and his father. The Accused had a college course examination the next day and Kaitlyn Box had to work, so they did not consume any liquor.

His father and Shayna Box had been drinking alcohol during the evening. [ 86 ] In his version of events, the Accused says that he and Kaitlyn Box had retired to their bedroom to go to sleep when they heard a vehicle engine revving and rocks on the gravel driveway spraying when the clutch of the vehicle was being allowed to engage. He observed the vehicle through an upstairs window.

The vehicle headlights were being flicked on and off. [ 87 ] He did not know whose vehicle it was and initially believed the vehicle was attending at his residence to visit the downstairs tenant. [ 88 ] He says that he went back to bed and fell asleep. He was awoken again in approximately 20 minutes.

Once more, he got out of bed and, wearing only his pyjama bottoms and housecoat and without any shoes, he went outside to speak to the driver of the vehicle, who as it turns out was the Complainant. [ 89 ] In the course of descending the stairs, he says that he tripped on and snagged his housecoat, causing it to come off, thereby leaving his torso bare. He did not put the housecoat back on.

He denied the suggestion made by Crown in cross-examination that this was part of his preparation to engage in a physical altercation with the Complainant and to not be encumbered by clothing. [ 90 ] He stated that he approached the Complainant, who was standing outside his vehicle. The Complainant said words to the effect that his name was Marcus and he was there for Shayna. [ 91 ] The Accused testified that he did not want to ask the Complainant to leave if in fact he had been invited.

Therefore, he indicated to the Complainant that he wanted to speak to Shayna about the Complainant's presence and the supposed invitation. The Accused further testified that he added words to the effect, "If you are not supposed to be here, you better not be here when I get back." He says that this was not something in the nature of a verbal or physical threat being made to the Complainant. [ 92 ] The Accused left, went upstairs to speak to Shayna Box, who was at that time in the bathroom, very emotional, nauseated and vomiting from her over-consumption of alcohol.

In response to the Accused telling her that Marcus had arrived, she used a profanity and said words to the effect that Marcus was not supposed to be there. [ 93 ] The Accused was unhappy at Shayna Box for the apparent invitation that had been extended by her to the Complainant. In order to confirm that she had not extended such an invitation, Shayna Box, while still in the bathroom, passed out her cellphone to permit the Accused to examine the text exchange between her and the Complainant.

The Accused saw that Shayna Box had texted the Complainant some three hours earlier, indicating that they would meet at his place.

Following a three-hour gap in communication, the Accused then observed the very recent text exchange that occurred when the Complainant texted that he had arrived and Shayna Box had questioned him, "Why". [ 94 ] According to the Accused, Shayna Box, using profanities, then told him to get Marcus "out of there". [ 95 ] The Accused admitted that he was aggravated and a little upset for the following reasons: he had been awakened by the Complainant; he was not expecting anyone to arrive at his residence at a late hour; he had college to attend the next day; he had been required to get out of bed to find out why the vehicle was in his driveway at this time of night; he had to proceed outside to do so, since the Complainant had not knocked on the door as would be the appropriate custom; he now found out that the Complainant was lying about having been invited to the residence by Shayna Box; and he felt that the Complainant was being quite rude. [ 96 ] He says that he was also concerned about the safety of Shayna Box, whom he described as "an overly drunk 17-year-old" under his care, and was faced with an over 20-year-old male, very late in the evening, stating that he was there to pick her up, which suggestion was being adamantly denied by Shayna Box, who was telling him to get the Complainant the "fuck out of there".

[ 97 ] The Accused then became more aggravated (which I understand to be annoyed), but denies he was angry, particularly when he went back outside the second time and saw that the Complainant had not yet left the Accused's yard. [ 98 ] During the second encounter, the Accused testified that as he went back outside and down the stairs, he raised his arms around the level of his own head, while saying to the Complainant as he approached him, "What the fuck are you still doing here?" [ 99 ] In examination in chief, he explained this was his indication to the Complainant that he, the Accused, was not happy that the Complainant was still there and that the Complainant better leave immediately.

The Accused confirms that he did not use any specific words to tell the Complainant to leave the Accused's property, but rather said that the Complainant understood that he was not welcome to be there. [ 100 ] He stated that the Complainant, in response, said to him words to the effect, "Where the fuck is Shayna?" The Accused agrees that this was the extent of the verbal exchange between himself and the Complainant on this second encounter and prior to the physical altercation occurring. [ 101 ] According to the Accused's version in his testimony in chief, that as the Accused approached the vehicle and started speaking, the Complainant got out of the vehicle and started walking towards the Accused, and the Complainant raised one of his hands. [ 102 ] As they approached each other, the Accused says that the Complainant first grazed the Accused's shoulder with his hand, thereby initiating the first physical contact.

This further upset the Accused, which resulted in the Accused pushing the Complainant back towards his vehicle and throwing what he described as "a few half-hearted punches" at the Complainant. [ 103 ] Again during his examination in chief, the Accused, in explaining his physical response directed at the Complainant, stated that not only was he upset when the Complainant touched him first, he also stated that this physical contact, "to the best of my knowledge, this is pretty much grounds for . . . it pretty well opens the door for anything . . . you are not allowed to touch me, especially on my property at 12 o'clock at night . . .

I didn't want that." [ 104 ] In cross-examination, the Accused said that he directed punches at the forearms and the face of the Complainant which were blocked by the Complainant, and that the Complainant also threw punches back at him, until the Complainant got back into his vehicle. [ 105 ] In his statement to the police that was put to the Accused in cross-examination, the Accused agreed he described the second encounter leading to the altercation in the following terms: As the Complainant was standing outside of his car, that they "got loud together" and then the Complainant pushed the Accused, whereby the Accused starting punching the Complainant in the face and arms and the Complainant got into his car "like over time and did up his window and then ripped out of my driveway backwards hitting me with the front of his car, I fell over and then he ripped over my yard again and took off and oh, I threw rocks at his car when he was driving though my lawn." [ 106 ] However, he admitted that there was nothing in his statement made to the police, provided shortly after the event, to the effect that the Complainant had initially or subsequently been punching the Accused.

In the statement, the first physical contact allegedly initiated by the Complainant towards the Accused was described as a push. [ 107 ] The Accused also said in the statement that he admitted that he was "mad" when he went out the second time, "and I did attack him, as well as him attack.

He physically touched me first which caused me to attack." [ 108 ] Then, in apparent further justification for his physical response, in his statement the Accused told the police that he believed it was his "right to be on [his] property and [the Complainant] not stating why he was there." I take this to mean that the Accused said that there was some justification for his actions, based upon the Complainant being an uninvited interloper on the Accused's property. [ 109 ] As noted above, in the police statement the Accused did not say anything about the Complainant punching him.

From that statement, it appears that the alleged push initiated by the Complainant was the first physical contact between the parties. However, that description of a push is not the same as the alleged grazing of the Accused's shoulder by the Complainant described in the Accused's testimony in chief.

It was the grazing of the Accused's shoulder that he said triggered his physical response towards the Complainant. [ 110 ] The Accused admitted in cross-examination that, in his statement to the police, he may have exaggerated a bit when he told Constable Nicholson that he was awoken by the Complainant "ripping" around his driveway and his yard, when in fact it was just the spraying of the gravel that he heard from the "popping of the clutch" of the Complainant's vehicle, thereby causing tires to dig into the gravel surface on the driveway.

He also conceded that certain other things in his police statement may be inaccurate, but he says they were not false. He suggested that those inaccuracies may have resulted from the fact that it was late at night and he had been awoken at least three times. [ 111 ] In cross-examination, the Accused admitted that he got a little bit more mad than he should have and admitted that, on hindsight, that he "overreacted".

However, the Accused disagreed that the Complainant got more than what he deserved, which the Accused says were only his attempts to punch the Complainant in the face, because of the fact that the Complainant was trespassing on the Accused's property at that point in the night. [ 112 ] In cross-examination, the Accused was unwilling to concede that at the time he was confronting and physically engaged with the Complainant, that both Shayna and Kaitlyn Box, who were inside the residence, were not at risk.

He suggested they were at some risk, and especially Shayna Box who was drunk and whose company was being sought by the Complainant. [ 113 ] The Accused says in his testimony that the vehicle was not facing front in towards his residence, as stated by the Complainant, but rather was stopped parallel to the front of the residence, and near the stairs leading to the upper quarters. According to the Accused, the vehicle's front end was pointing towards the circular turnaround area at the very end of the partial U-shaped driveway, which was some 600 metres in length measured from the entrance gate.

[ 114 ] The Accused says that he was propelling the Complainant around the front of the vehicle, back towards the open door on the right-side of the vehicle, at which point the Complainant got into the vehicle.

Before closing the door completely, the Complainant accelerated the vehicle in reverse a short distance towards the left, with the rears digging into the gravel, causing the front of the car to swing in a clockwise direction, at which time the Accused, who was standing near the right-hand driver's door shouting at the Complainant, was struck by the vehicle, such that his ankle was run over by the front right wheel of the car. [ 115 ] This caused the Accused to fall to the ground on his back, with his right ankle pinned under the wheel in the deep gravel covering that portion of the driveway.

He says that it also caused him to be dragged over the driveway gravel covering some five or six feet, as the vehicle continued to reverse. The Complainant then put the vehicle in forward motion, thereby freeing the Accused's ankle. The Accused then rolled away from the vehicle onto his chest. According to the testimony of the Accused, it was during this encounter with the vehicle and the driveway surface that he sustained all of the road-rash injuries and damage to his ankle.

The Accused says that he may have come in contact with the right side of the vehicle, including the door and wheel-well area, while being struck by the vehicle. [ 116 ] Thereafter, as he was still lying down on the driveway, the Accused heard Kaitlyn Box shouting from the upper balcony.

He looked over to observe the Complainant's vehicle "doing crazy donuts across the lawn" and then, after completing three of these manoeuvres, heading across the lawn towards the entrance to the driveway, where the Complainant's vehicle ended up back onto the driveway and departed out the gates towards the public roadway. [ 117 ] While the Complainant's vehicle was completing the donut manoeuvres on the lawn, the Accused says that he reached down, picked up a handful of the half-inch crushed gravel from the driveway, and threw it at the direction of the Complainant's vehicle. [ 118 ] He denies that he hit the rear window or that he broke any glass on the vehicle.

He says that an inspection of his yard the next day failed to reveal any broken glass. He also says that when the vehicle was completing its manoeuvres on the lawn and departing from his residence, that both the front and rear windows were intact and were not broken.

He was able to make this observation with the aid of the ambient light available from the sensor light on the residence that partially illuminated the vehicle. [ 119 ] He candidly admits in his evidence of the possibility that some of the gravel may have put a small hole in the mirror, or possibly caused some small denting on the vehicle's hood, but he said he was unable to observe any of that damage because it was dark. He specifically denied punching out the windows of the vehicle, and said that he told the police this in response to their suggestion that he had.

He further testified that no injuries or marks were observed when the police inspected his hands a short time after the events, which he suggested would be the case had he punched out the windows. In submissions, it was further suggested that there would be some evidence of his hands coming in contact with the Complainant if a number of punches had been thrown and contact made. [ 120 ] In cross-examination, the Accused agreed that in his police statement he says that he threw a handful of pebbles from the driveway covering at the Complainant's vehicle while the Complainant was driving over the lawn.

When asked by Constable Nicholson as to whether it caused any damage, he stated he could not see it because it was dark, but he "assumed" damage was thereby caused to the vehicle. [ 121 ] The Accused admitted that he did not call the police to have the Complainant removed from his property when it became apparent that his presence was not welcomed by Shayna Box. In the Accused's view, the Complainant was trespassing after having been asked to leave.

The Accused also noted the existence of a "No Trespassing" sign at the beginning of the gravel driveway leading into his residence, although there is no evidence as to whether or not it had been seen by the Complainant. [ 122 ] Furthermore, the Accused indicated that he did not call the police to report the incident involving the Complainant, although he knew the police might come. [ 123 ] He testified that he did not seek immediate medical treatment for his injured ankle and his other sustained injuries. Rather, he testified that he returned to bed and fell back to sleep, only to be awakened by the police.

The police arrived at his residence just before 1:00 a.m. He provided a statement to the police, which he said only took about four minutes, and thereafter police photos were taken of his injuries.

Summary of the evidence of Kaitlyn Box [ 124 ] Kaitlyn Box testified that she and the Accused had been sleeping on the evening in question. She woke up when she became aware that the Accused was up, saying that somebody was at the residence, and she understood he was going to investigate. She heard the front door close and then heard him returning from the outside. [ 125 ] From the master bedroom, she was able to make an observation and described the Accused as "a little bit upset". Again from the master bedroom, she heard him speaking to her sister, Shayna Box, who was in the bathroom.

Kaitlyn Box described her sister as being drunk and nauseated because of the over-consumption of alcohol. [ 126 ] She heard the Accused tell her younger sister that Marcus was there. She heard a response from her sister asking the Accused why Marcus was there. The conversation continued, whereupon the Accused left Shayna Box and he headed back outside of the residence. [ 127 ] At that point, Kaitlyn Box got out of bed and headed down towards the bathroom, where she briefly checked on her intoxicated and nauseated sister. Kaitlyn Box then went outside to the top deck of the residence.

She observed that the Accused was in the process of getting up off the ground in a location by the stairs leading to the upper portion of the residence and the deck area.

She saw what turned out to be the Complainant's vehicle backing up and then proceeding onto the lawn area in front of the residence, where it did a couple of "burnouts" (which she described as being the same thing as the vehicle completing "donuts") prior to rejoining and heading up the driveway and departing the scene. [ 128 ] She saw the Accused pick up a handful of gravel from the driveway and throw it towards the moving vehicle while it was completing the donuts. She says that she did not see or hear the gravel hit the vehicle. She says that although it was dark, the vehicle

was being partly illuminated by the light from both the sensor light, which is activated by motion, and by the house lights, which were also on. [ 129 ] The next day she says that she and others had looked around the yard area and could find no signs of any broken glass from the Complainant's vehicle, and that they did so because of the suggestion made by the Complainant to the police that this had occurred. [ 130 ] She further confirmed in her evidence that the various injuries on the Accused's body depicted in the exhibit photographs did not exist prior to the events of that evening. [ 131 ] She stated that following the departure of the Complainant and prior to returning to bed and prior to the arrival of the police, she and her sister (who was still feeling the effects of the alcohol) and the Accused had what I take to be a debriefing session, which she said took some 45 minutes.

At that time, she had the first opportunity to learn of and to view the text communications between Shayna Box and the Complainant.

Her time estimate was that it was some two hours before the police arrived. [ 132 ] In cross-examination, Kaitlyn Box said that when she observed the Accused, he was at the left front of the vehicle and not the right front of the vehicle, which was opposite the side of the vehicle being the location identified by the Accused as to where he was at that time. [ 133 ] She further confirmed that she saw no interaction between the Accused and the Complainant, and that neither she nor her sister had any direct interaction with the Complainant that evening. [ 134 ] She conceded on cross-examination that although the Accused was, in her characterization, throwing gravel "towards" the vehicle, (rather than "at" the vehicle, which to her connoted the vehicle was right in front of the thrower), that it appeared to her that the Accused was trying to hit the vehicle. [ 135 ] Notwithstanding vigorous cross-examination on the point, she continued to state that she could observe the windows on the vehicle and that they were not broken during her observation period of the vehicle, and that she neither saw nor heard rocks striking the vehicle.

She stated on redirect that she could observe a glint of light off of both the front and back windows as the vehicle was spinning around. [ 136 ] She further testified, in both cross-examination and in redirect, that she believed that the Complainant's vehicle had the driver's side on the left-hand side of the vehicle. This was inconsistent with the evidence of both the Complainant and the Accused. [ 137 ] Kaitlyn Box also provided evidence about the Accused's attire, saying he was wearing boxer shorts while he was outside. This was not consistent with the evidence of either the Accused or the Complainant.

The applicable law Applicable provisions of the Criminal Code [ 138 ]

Section 266 states that everyone who commits an assault is guilty on an indictable offence for a term not exceeding five years, or an offence punishable on

summary conviction. Crown has proceeded summarily. [ 139 ] Other relevant provisions are found in s. 265 of the Criminal Code and ss. 34 and 35 , which provide in part as follows: 265.

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose . . .

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the Complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief. . . . Defence of Person 34.

(1) A person is not guilty of an offence if

(

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person's role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person's response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. Defence — property 35.

(1) A person is not guilty of an offence if (

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property; (

b) they believe on reasonable grounds that another person (

i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (

c) the act that constitutes the offence is committed for the purpose of (

i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (

d) the act committed is reasonable in the circumstances. (2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law. (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [ 140 ] With respect to the provisions that relate to the mischief charge, the following are apposite, namely ss. 429 and

Section 429, under the heading "Wilfully causing event to occur" reads as follows: 429.

(1) Every one who causes the occurrence of an event by doing

an act or by omitting to do

an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part, wilfully to have caused the occurrence of the event.

(2) No person shall be convicted of an offence under sections 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.

(3) Where it is an offence to destroy or to damage anything, (

a) the fact that a person has a partial interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage; and (

b) the fact that a person has a total interest in what is destroyed or damaged does not prevent him from being guilty of the offence if he caused the destruction or damage with intent to defraud. [ 141 ]

Section 430: Mischief 430.

(1) Every one commits mischief who wilfully (

a) destroys or damages property; (

b) renders property dangerous, useless, inoperative or ineffective; (

c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or (

d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property. [ 142 ] …Pausing for a moment. [OTHER MATTERS SPOKEN TO] (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 143 ] THE COURT: Crown's Position On the charge of assault [ 144 ] Crown submits that it has proven the essential elements of the offence of assault against the Accused. [ 145 ] Crown suggests that the court should find that the Complainant was a good witness, and his version of the second encounter leading to the charges is truthful and should be accepted.

On the other hand, I am being asked to find the Accused's evidence is contrived and that he was not a credible witness.

Furthermore, that the evidence of Kaitlyn Box was tainted by her natural bias towards the Accused. [ 146 ] Crown points to the contradictions in the evidence of the two defence witnesses, and specifically as to the Accused's location at the time Kaitlyn Box viewed the vehicle backing up. [ 147 ] Crown further points to the inconsistencies in the evidence provided by the Accused during his testimony, and the inconsistencies in what he said in his statement to the police. [ 148 ] Crown says that the evidence of the Complainant is more consistent and makes more sense in the description of what occurred during the second encounter. [ 149 ] Specifically, Crown notes that nothing changed for the Complainant in the time period between the completion of the first encounter and the Accused's departure to speak to Shayna Box about the Complainant's presence, and the Accused returning and the commencement of the second encounter with the resulting physical altercation. [ 150 ] However, Crown says that a lot had changed for the Accused, insofar as he had learned from Shayna Box and gained an impression as to what was taking place from his review of her text messages.

Thus when the Accused returned to engage the Complainant in the second encounter, the Accused was angry at the Complainant, which triggered his physical aggression towards the Complainant. [ 151 ] On the other hand, Crown says that there was nothing to trigger the alleged aggression on the part of the Complainant and for him to act in an aggressive manner as suggested by the Accused. [ 152 ] Therefore, the Complainant's recital of the facts of the second encounter is consistent with an absence of aggression on the part of the Complainant and the overly aggressive behaviour on the part of the Accused, leading to the assault. [ 153 ] Crown says, in essence, that by his assaultive actions taken against the Complainant, the Accused overstepped his authority, overreacted, and took unreasonable steps against the Complainant to remove him from the residence, notwithstanding what the Accused may have thought was transpiring at his residence that evening.

[ 154 ] Crown further says that whatever justification that the Accused thought he had to physically respond to the Complainant, in fact he did not have any justification at law. Crown says that self-defence is not available on the evidence before the court. Crown therefore seeks a conviction on the assault charge. On the charge of mischief [ 155 ] Crown says that the mischief for which the Accused should be convicted is the punching of the windshield and throwing of rocks which caused the rear window to shatter.

It concedes that there is a lack of sufficient evidence to include the other damage in a guilty verdict for mischief. [ 156 ] In that regard, Crown suggests that actions of the Accused took place not in defence of property nor in self-defence, but simply because the Accused was very angry at the Complainant and lost control.

Crown notes that, based on all of the evidence, the timing of the alleged mischief took place after the completion of the physical altercation which occurred during the second encounter. [ 157 ] Therefore, Crown says, without making specific reference to s. 429(1) of the Criminal Code , that the wilfulness of the Accused's actions has been demonstrated by knowing that throwing rocks would likely cause damage to the vehicle, and even being reckless as to whether or not that would occur. [ 158 ] Therefore, Crown seeks a conviction on the charge of mischief.

Defence's position On the charge of assault [ 159 ] Defence submits that with respect to the charge of assault, Crown has failed to prove the allegation beyond a reasonable doubt and hence the Accused should be acquitted. [ 160 ] Defence further says that where the evidence conflicts, especially as between the Accused and the Complainant, that the Accused's testimony provides a truthful and accurate recounting of the circumstances, and the evidence of the Complainant has on certain material points been tailored and is therefore unreliable and should be rejected. [ 161 ] Specifically, I am being asked to reject the reliability of the Complainant's evidence on the basis that he was inaccurate and untruthful with respect to two important parts of the second encounter between the Complainant and the Accused. [ 162 ] First, the Complainant's suggestion that he was unaware that he struck the Accused with his vehicle when, in the defence's view, the photographed physical evidence of the injuries sustained by the Accused is clearly contradictory.

Second, the minimization contained in his evidence about driving across the lawn, when he was observed by both the defence witnesses performing multiple donut manoeuvres with his vehicle on the lawn prior to his departure. [ 163 ] Defence also says that the physical evidence supports their suggestion that, because of there being no apparent injuries on the Accused's hands, I should conclude that the Accused is truthful that he did not punch out the vehicle windows and he did not land punches on the Complainant, both of which were contended by the Complainant in his evidence. [ 164 ] Thus it is submitted that I should accept the Accused's version of what took place during the physical altercation between the Accused and the Complainant. [ 165 ] At its heart, I understand that the Accused says this was a consensual fight, initiated by the Complainant when he flicked or brushed the shoulder of the Accused as the parties aggressively approached each other, following the Accused's return from inside his residence and having taken reasonable steps to learn from Shayna Box about the purported invitation extended by her to the Complainant. [ 166 ] In other words, the defence says that the Accused "met force with force" and that the force utilized by him was reasonable in the circumstances.

Therefore, if the Accused did land any punches, he was entitled to do so and he was under no obligation to use specific words, or what defence characterizes as "magic words", to convey to the Complainant that he was unwelcome and had to leave the property before the commencement and the mutual participation in the consensual fight. [ 167 ] Defence submits that I should conclude that there has been no attempt to tailor the evidence in such a fashion as to buttress the Accused's version or undermine the Complainant's version, given some of the inconsistencies in the evidence of the Accused and Kaitlyn Box, which defence says has been affected by the passage of time and their subsequent discussions.

In other words, some of the inconsistencies support the contention that they are both credible witnesses. [ 168 ] I do not understand from defence's submission that the Accused is advancing any defences under the self-defence provisions or defence of a person contained in s. 34 of the Criminal Code , nor the defence of property contained in s. 35 of the Criminal Code . On the charge of mischief [ 169 ] Again, the defence submission is that the Crown has failed to prove the charge of mischief as contemplated by s. 430(1)(

a) and hence the Accused should be acquitted. [ 170 ] Defence says specifically that it has not been established that there was wilful damage of the vehicle when the Accused hurled gravel towards that vehicle.

Defence suggests that the Accused's actions of picking up gravel and throwing it in the direction of the Complainant's vehicle, having just been struck by that vehicle and while it was completing donuts on his lawn, was an understandable emotional reaction on the part of the Accused and is not evidence of his wilful intent to destroy or damage property. [ 171 ] Furthermore, it is submitted that Crown has not established that all of the damage sustained by the vehicle was as a result of the

intentional conduct of the Accused, and notes the existence of some pre-existing damage, and suggests that the evidence of a significant amount of the damage is consistent with damage likely sustained during the driving of the vehicle over the lawn and up the driveway. Case authorities relied upon by the Crown and defence [ 172 ] Other than W.(D.) , neither Crown nor defence has referred the court to any case authorities.

Analysis Issues Assessment of credibility and reliability of the witnesses [ 173 ] In assessing the credibility and the reliability of the witnesses, I have done so from the three perspectives noted above and by considering the relevant factors noted in R. v. Cuhna . [ 174 ] It is particularly noteworthy that the two encounters by the Accused and by the Complainant occurred in a relatively compressed timeframe. The events that took place during second encounter occurred very quickly. [ 175 ] It was dark. It was late at night.

The Accused and Kaitlyn Box had been awoken from a sleep by the unexpected arrival at their residence of a virtual stranger, in a vehicle, seeking to pick up a young woman whom the Accused knew to be intoxicated. [ 176 ] The Complainant was in an unfamiliar rural location. He was there relying on his

interpretation of his text exchange with Shayna Box as the foundation for his invitation and arrival on the scene. He was unsuspecting of any problem developing with his presence. [ 177 ] The Accused was relying upon his

interpretation of that same text exchange in formulating his impression of what was taking place. For a host of reasons, the Accused became angry, based upon what I can characterize as a series of circumstances which he laid at the feet of the Complainant, and which he viewed as being irritating, irresponsible, and inconsiderate. The Accused held certain beliefs, that he expressed in different ways in his evidence, that he had certain rights to behave in a manner necessary to physically oust a person he considered to be an uninvited intruder from his property.

That included the right to use force against the Complainant. [ 178 ] The Complainant, the Accused, and Kaitlyn Box cannot be considered independent witnesses. They each have an understandable bias. [ 179 ] They may be inaccurate in their respective observations and in the recounting of the events that took place that evening during the two encounters, without necessarily being untruthful.

In their evidence, they are all attempting to reconstruct a version of what occurred; that reconstruction has been shaped by the surrounding circumstances and the passage of time. [ 180 ] In sorting out what occurred that night I must, of course, look at the whole of the evidence. The assault charge [ 181 ] I agree with Crown's submission that part of my analysis should include a consideration of what actually changed between the civil first encounter of the Complainant and the Accused, and the less-than-civil second encounter which gave rise to the physical altercation.

Crown is correct when it submits that nothing had really changed for the Complainant in the intervening period of time.

However, much changed for the Accused when he finished speaking to the intoxicated Shayna Box, and having reviewed and interpreted the text messages between her and the person outside, whom he considered to be an uninvited intruder and suspicious at that. [ 182 ] Accordingly, I do not accept that there was any reasonable basis for the Accused's assertion that the Complainant suddenly became aggressive with the Accused during the second encounter. [ 183 ] On the whole of the evidence, I am satisfied beyond a reasonable doubt that it was the Accused who was the aggressor against the Complainant. [ 184 ] Similarly, I am further satisfied, and having given due regard to s. 265(4), there is insufficient evidence which, if I believed it, would constitute a defence that the Complainant consented to the fight, and there is also insufficient evidence that would lead me to conclude that the Accused had an honest belief or reasonable grounds for that belief. [ 185 ] This was not a consensual fight.

The Complainant was aware of Shayna Box's unflattering description of the Accused. He was wary of the Accused. It is very improbable that he would have any reason to become confrontational with the Accused in the circumstances that he found himself, late on that evening and being in unfamiliar surroundings.

It is more improbable that he would take that opportunity to agree to participate in a consensual fight with the Accused, especially when his only purpose for being there was to pick up his texting friend, Shayna Box, pursuant to what he believed to be her invitation, and to spend some time together with her at his residence watching a movie. [ 186 ] Based on both the evidence of the Accused and the Complainant, I find that the Accused first struck and attempted to strike the Complainant during the second encounter. This was more than trifling non-consensual physical contact with the Complainant.

While the Complainant is likely mistaken about the large number of blows he received, because he was raising his arms protectively to block the intended blows and was not focusing on the actual number, on the whole of the evidence I have concluded there were several blows administered by the Accused to the Complainant. [ 187 ] I have examined the Accused's evidence, as I must on the basis of the W.(D.) formulation, and in particular his evidence about the second encounter and the physical altercation that occurred.

In my view, that evidence does not raise a reasonable doubt, and Crown has therefore established beyond a reasonable doubt that the Accused assaulted the Complainant during the second encounter and during

a non-consensual fight initiated by the Accused, and in which the Complainant only raised his arms in a protective manner and did not attempt to nor actually land any return blows on the Accused. [ 188 ] Based on the evidence about what occurred during the second encounter that I accept in this matter, and even on the Accused's evidence, there is no air of reality to a possible defence of self-defence or defence of another person available to the Accused, nor is there an air of reality to a possible defence based on the defence of property, as each of those defences are contemplated by the Criminal Code . [ 189 ] However, I do find that the Accused was struck by Complainant's vehicle in much the fashion that was described by the Accused in his evidence.

There is no other rational explanation for the multiple injuries that he sustained. [ 190 ] It is difficult to ascertain how the Complainant could not be aware that he had come in contact with the Accused with his vehicle, other than to view the whole situation through the lens of a panicked individual who was fearful of a further physical confrontation, which blinded his observation as to what was occurring around his vehicle, while in pursuit of his goal to escape very quickly from the scene. [ 191 ] On the whole of the evidence, I have concluded that in the course of departing the scene the Complainant's vehicle swerved around on the lawn, not as characterized by the defence witnesses with the completion of multiple donut manoeuvres, but certainly completing more manoeuvres than what the Complainant has testified about. [ 192 ] I note that Kaitlyn Box equated the "donut" manoeuvre to a "burnout" on the lawn.

I have always understood those to be different common descriptions of certain driving: the "donut" being the completion of something akin to a 360-degree spin, while the "burnout" entails the swerving or fishtailing of a vehicle due to very fast acceleration and the spinning of the vehicle's tires. The burnout may result in tire marks being laid down on hard surfaces or significant grooves or ruts occurring on soft surfaces.

It is the latter "burnout", rather than the former "donut" vehicle manoeuvre, that most likely occurred that evening. [ 193 ] What I understand is common to them both is the requirement for a relatively high level of speed.

Here, the necessary speed of the Complainant's vehicle appears to have continued at the time that the Complainant's vehicle rejoined and resumed contact with the gravel surface of the driveway, as he completed his departure. [ 194 ] I note in the Complainant's evidence that on his first visit to the Accused's residence in the course of dropping off Shayna Box, he did not travel down the driveway as he had observed potholes or an uneven surface, which gave the Complainant concerns that he could do damage to his vehicle if he travelled on the driveway in that particular vehicle. [ 195 ] However, as Crown noted, the collision between the vehicle driven by the Complainant and the Accused and the hasty departure of the Complainant across the lawn occurred following the assault.

Therefore, it does not account for the actions of the Accused during the initial part of the second encounter when the Accused became physically aggressive with the Complainant. [ 196 ] That said, these actions of the Complainant are not the subject matter of any charges or civil claims presently before me, but I accept them as part of the attending circumstances of the events of that evening. Also, as I have noted below, they are in part relevant to the mischief charge.

The mischief charge [ 197 ] On the whole of the evidence, I am not satisfied Crown has proven beyond a reasonable doubt that the Accused is guilty of the mischief charge. The damage suffered by the Complainant's vehicle was extensive. Some of it was pre-existing. The Complainant was unable to explain the cause of much of the damage and was unable to say specifically that it was caused by the Accused.

I do not accept the evidence of the Complainant that the damage to the front windshield was caused by the punches thrown at it by the Accused. [ 198 ] The Accused candidly admitted that he hurled some rock material in the direction of the Complainant's vehicle as it was driving across the lawn.

However, notwithstanding the fact that he raised the possibility or speculated in his evidence that some of the damage may have occurred from his actions, nobody, and specifically not the Complainant, was able to observe the direct contact of the gravel on the vehicle and to tie it to the damage that the vehicle sustained. [ 199 ] There is a reasonable possibility that the damage to the vehicle, including damage to the front windshield, was as a result of the Complainant's vehicle colliding with the Accused, and also a further reasonable possibility that the damage was sustained by the driving of the vehicle at a high rate of speed across the lawn and then onto the uneven gravel surface of the driveway.

Conclusions [ 200 ] Based on all of the foregoing, I have concluded that Crown has met its evidentiary burden with respect to the charge of assault against the Accused. [ 201 ] However, Crown has failed to meet its evidentiary burden on the mischief charge. Decision [ 202 ] Therefore, based on all of the above, I convict the Accused on the Count 1 assault charge, and I acquit the Accused on the Count 2 mischief charge. (REASONS CONCLUDED)