R. v. Orr Date:, 2015 BCPC 439

Citation: R. v. Orr Date: 20151203 2015 BCPC 0439 File No: 82147 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WESTON MARCK ORR REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.G. MACDONALD Counsel for the Crown: A Read Counsel for the Accused: C. Arnason Place of Hearing: Abbotsford , B.C. Date of Hearing: December 3, 2015 Date of Judgment: December 3, 2015

[ 1 ] THE COURT : The accused, Weston Marck Orr, is charged on an Information that on the 17th of January, 2015, in Mission, he committed an assault on Chelsey Rene Bergh causing bodily harm to her under s. 267 (

b) of the Criminal Code . [ 2 ] The Crown has heard from four witnesses in this case, two for the Crown, and the accused, and one other witness for the defence, and both Crown and defence agree that this is a credibility/reliability kind of a case, and the court obviously agrees with that in that I have different versions as to what occurred on the relevant portions of the case. [ 3 ] There is certainly some agreement on some of the evidence. It is not an identification case. There is no question that the person that Chelsey Bergh had contact with that night was indeed Weston Orr. He admits all of that.

He just denies that it happened the way she said, and he denies that he punched her in the face, causing injuries. [ 4 ] The evidence of Cst. Hinman called by the Crown is that on the 18th of January at about 5:00 p.m., he interviewed Chelsey Bergh at the RCMP station, and that she had attended to report an incident that had occurred on the early Saturday morning, the day before. He took her statement. It is not marked as an exhibit, but it has been referred to in the case, certain sections of it, and he took photographs of her, and those photographs have been marked Exhibit 1.

They show certain substantial injuries to Ms. Bergh, and the injuries were photographed and are described by Cst. Hinman. He said that she had two black eyes, that she had a puncture wound on her nose, and that she had a goose egg on the side of her head. The size of the lump on the side of her head was about the size of a toonie, consistent with being struck with something on the side of the head and having what he described as a "goose egg". [ 5 ] I have looked at the photographs. They indeed do show a person who appears to have suffered some trauma directly to her face.

Her evidence is that she was punched directly in the nose by a closed fist from Mr. Weston Orr and the Crown says those injuries are consistent with that, and I find clearly they are. If she had been struck in the nose as she described, one might expect some injury to her nose. There is some evidence that she had an undisplaced fracture of the nose, and black and blue both eyes would be, although I am not a medical doctor, I find that would be consistent with that kind of a blow. The puncture to the nose she felt was caused by his ring.

There is no other evidence as to whether or not he had a ring on that night, but she says she believes that is what caused that injury. And she said after she was punched in the nose she bent over, blood was pouring out, and he punched her again in the side of the head.

Again, the goose egg on the side of the head would be consistent with a second blow of that type. [ 6 ] With respect to how those injuries occurred, the accused has no explanation for that, and he is not required to explain how her injuries were caused, but when I get to his evidence, he basically said that he drove off and left her in good physical condition and he never commented on whatever may have caused her injuries. [ 7 ] With respect to the evidence of Cst.

Hinman, the evidence contained in the statement, she had described that the person that she met at the bar, and she gave, I believe, the name Weston Orr to him, or at least the name Weston to him, and she said that she believed that he was on McRae Street, that they went to his residence on McRae. It turns out that was not accurate. She also said she had about seven drinks at two different bars that night, and that she was intoxicated. [ 8 ] She also described Mr. Orr as having tattoos, sort of, tattoos all over both arms. It would appear from the evidence that that is not the case.

That while he may have had a cross or a tattoo on a shoulder or somewhere, maybe on an upper arm, he does not seem to have had any tattoos on his lower arms, and clearly she is in error when she describes that. [ 9 ] Ms. Bergh says that on the night in question, the 16th of January in the evening, she goes out with her friend Lacey; that they had been at the Town Hall Pub in Abbotsford from about 9:30 to 10:30 that night. She said in evidence that she had a couple of drinks, maybe two, maybe coolers. That is one drink less than she said in her statement, and in her statement she talked about vodka.

So there is a difference there, but in any event, that was her evidence at trial, at least in direct. [ 10 ] She and Lacey leave to go to the Mission Springs Pub in Mission. They arrive around 10:30 or 11:00. They do not leave until 1:00 in the morning at closing time. Everybody is pretty consistent that the whole group leaves around 1:00 a.m., so she would have been there two or two-and-a-half hours. She said she was talking with everybody, socializing, knew some people, including a person named Brandon Dale who is also a friend of the accused.

She said she had two or three drinks there, maybe vodka and orange, or something, she said. In her statement she said she had four drinks. So again, a discrepancy, in my view, not significant, but a discrepancy. [ 11 ] She said that at closing time her friend Lacey went with a friend of the accused when they left the pub, and she said they were all going to go in various cars and meet up at a certain location somewhere on Cherry Drive. She did not know the address.

She claimed that Lacey was making out with Weston's friend and she left with him, and she says that she and Weston left in a black Charger. [ 12 ] It would seem on the evidence that it is unlikely she left in a black Charger. There is certainly some evidence from the defence that they would have left there in this gold Chevy Cavalier and later on ended up in a black Charger. So it would appear that Ms. Bergh was wrong in her initial recollection that she left in a black Charger. [ 13 ] There is no question that she drove to a home which turns out to be Weston Orr's home.

She said she did not know they were going to his home, and she expected to be going to this party on Cherry. She ended up going into his residence with him. He says it is his house. She wants to go to the party. She said he tells her we are just going to stay there, and she said she was trying to phone to Lacey and find out where the party was. She claims that the accused was trying to kiss her and rubbing her leg. She said she just wanted to go. She claims that he refused to drive her home, said she could just stay there. He continued to try and kiss her. She kept saying she wanted to go.

She claims, "Finally he got angry and he agreed to drive me home," and they leave in this black Charger. [ 14 ] As to what happened at the residence, the accused has quite a different version as to what happened. He basically said that when they arrived at the house, the reason he went there, he says, was to change, that he had had alcohol spilled on him at the pub and that he wanted to change and get out of those clothes and then go to the party, and that it was her who was making advances towards him, and she wanted to stay there with him and he wanted her to leave.

So there is a totally different version as to what was going on at

the house. [ 15 ] Frankly, between those two versions I am unable to say with any certainty which version is accurate. Maybe somewhere in the middle, but there is no question they were there. There is no question they ultimately left, and when they did leave for him to drive her home it is likely that it was not on the best of terms, either because he just wanted her out of there, and she was bothering him, and he wanted to get rid of her, and she was being difficult.

So, that may have been the circumstances, or, as she put it, he was being aggressive to her, she was rejecting him and he was angry about that and finally agreed to drive her out. In any event, they are not overly-friendly by the time they leave the residence in this black Charger. [ 16 ] The black Charger, it turns out, is not a vehicle that is owned by Mr. Orr, but it is owned by his friend, Mr. Bergeron, and Mr. Bergeron had driven the car to that residence earlier, left the car there with the keys.

And the accused says, "I drove the Charger because my Cavalier was low on gas, and it is not uncommon to drive each other's cars," so they leave in that car. [ 17 ] It would appear that at that point in time there is a decision made, it seems by both of them, they both wanted initially to go to this party, and along the way the accused stops by a park and an elementary school, one across the street from each other, and she said it was by the school, he said it was by the park, in any event, it is in that same general area, and there he is making a phone call to his friend to try and find out where the party is. [ 18 ] At that point in time he had been told by Mr.

Bergeron in an earlier phone call, "Just call me when you're closer and I'll tell you where it is." Well, he tries to call Mr. Bergeron. He cannot get Mr. Bergeron and ultimately he has no way to go, he says, to the party. He claims that he does not get out of the car; that he stays in the car. She says he does get out of the car and that she got out after him. It would appear at some point in time, in any event, right around that time, she does get out of the car.

He decides for whatever reason, it is really not clear, other than that he wants to get away from her even more than he did earlier, he decides to apparently leave her on the side of the road and drive off. [ 19 ] At the time it is January, it is cold, she is not dressed for the cold. She has a very short skirt on, a very light jacket, and she says, "I just stood there. I was basically in shock. I didn't know what to do. It was a long way to my house. I would've had to walk uphill, and I just stood there." He drives off thinking that, "I'm glad to get rid of her." That is kind of the way he put it.

"I was feeling pretty good about myself because I got rid of her." [ 20 ] But he drives off a ways, noticed that her purse is in the car and now he has got a problem, so he decides, after about five or ten minutes, that he is going to drive back, and he does drive back. At that point in time he claims that she is apologetic and just asks for a ride to her house, "Please give me a ride home," and he agrees. [ 21 ] Her version of what happens at that point is quite different. She says that after about ten minutes he came back and he says to her, "Get in the fucking car.

I'll give you a fucking ride home." And so, she said, "I get in the car," and there is basically a silent drive all the way to her house, which takes about five minutes. Interestingly, both of them agree that there is basically no conversation going on during that period of time, to me, further indicative of the fact that, for whatever the reason, they appear to be mad at each other. There is some anger there. [ 22 ] I say that is important because the accused throughout this incident when he gives evidence says, "I wasn't mad at her. I wasn't mad at her for jumping in my car without an invitation at the pub.

I wasn't mad at her for insisting that she come with me to my house, for coming on to me when that sexual advance wasn't wanted, for refusing to leave the house and saying she was going to stay." He was not mad at her for any of those things. He says that just before he drove off from the park area she was swearing at him, and even though he drives off and she is swearing at him and he is leaving her in the cold by herself, again he says, "I wasn't mad at her." Well, frankly, that does not make any sense. It is absolutely clear that he was mad at her at that point in time, and maybe with some justification.

I am not suggesting there was not any justification, but his denial that he was mad just does not make sense and is incredible, in my view. [ 23 ] With respect to how she got in the car back at the pub, I should probably touch on that in that he claims that his friend, Martin, came out of the pub after him, and that he, Martin, was intending to jump in the Cavalier and go with the accused, presumably to the party but that Chelsey had jumped into the car ahead of him, into the front passenger seat, Martin sees this and then went off with the girls. Martin Bergeron said, "No, that didn't happen. I left before them.

I never saw Chelsey in the car." So there is certainly, at the very least, a reliability issue, if not a credibility issue with respect to how Chelsey first gets in the car, and that discrepancy shows up in the evidence of the two defence witnesses. [ 24 ] So, we now have the situation where they are driving back to Chelsey's house, they are not talking, obviously mad at each other, in my view.

They get to the house, he is told where the house is, he pulls over to the side of the road, and it would appear that as she gets out there is some swearing back and forth between the two of them. [ 25 ] According to the accused there is a little more than that in that before she gets out she tries to lean over as if to kiss him and he leans back to avoid that, and then she starts to slap him, and then she gets out of the car and swears at him, calls him a "goof" and says, "You're fucking done," slams the door aggressively and then commences to kick the side of the car, it seems, six times by the amount of blows shown in the photographs in the exhibit, and that he then puts the car in drive after the six kicks and drives off.

No explanation for how Ms. Bergh ends up with the injuries that we see in the photographs. [ 26 ] Ms. Bergh's version is quite different as to what happens at the car, and really, that is where the critical part of this case is. She claims that in the car she said she was getting out; he had parked in front of her house, and as she was getting out the accused called her a "stupid fucking bitch".

She said, "I then called him something like a fucking creep." There were some words exchanged, in any event, between the two of them, and both of them agree that, at least as she is getting out of the car, there is some sort of an antagonistic, angry kind of an exchange going on, although on the part of the accused he says it was all coming from her, she said some of it is coming from him. He would say in evidence, and did say in evidence, "I'm not swearing at her. I'm not being difficult with her because I'm not mad at her."

[ 27 ] Her version of getting out of the car is that she shuts the door, walks around the car to go around the back and go to her house, and that she shut the door normally, did not slam it, and as she gets around the back of the car the accused gets out of his car, runs at her and hits her square in the face, on the nose, with a closed fist, that she started bleeding profusely. She was in tremendous pain. She described it as her nose exploded.

She says she bent over and as she is bent over he punched her again on the side of the head and she fell to her knees, and at that point the accused gets in his car and drives off. She said she got up and kicked at the back of the car, not sure if she made contact or not, but she said she was completely in shock. She laid there crying, so much blood.

She actually did not walk to her house, she actually got her telephone out and telephoned her girlfriend who lives around the corner, and her girlfriend came over and picked her up from the street, did not take her to Chelsey's house but took her to her house, that is the girlfriend's house, took her over there, tried to clean her up, took her in the bathroom, but she said she could not really touch her because it was hurting.

She ended up putting her in bed, giving her a Tylenol, and she ends up going to sleep there. [ 28 ] When one looks at the independent, I am going to call the photographs independent, the independent evidence that we have in this case, totally independent, it totally corroborates the version of events of Chelsey Bergh, and in view of the circumstances, that she is left on the side of the road right in front of her house, there is really no possible other logical explanation as to where she would receive these substantial injuries.

It was not even suggested to her, for example, that in a drunk stupor she fell and hit her face on the curb, or on the road, or anything like that, and those injuries are not necessarily consistent with that anyway, but they are very consistent with the blow described by her. [ 29 ] She says, "I was in bed most of the next day." She obviously was involved in some Facebook chat with Brandon in which she agrees that she was hammered and drunk on that previous night, but she is basically saying to him, "That does not justify or explain why I should get punched in the face." So there is not a whole lot to be learned from that email back and forth, except that there is an admission in there that she was "hammered" or "fucking drunk", and in her evidence in court, although she initially said, "I was intoxicated," she never says, "Well, I just was slightly, you know, buzzed," but she says, "I was intoxicated," and later, in cross- examination when the statement is put to her she agrees that she was drunk.

She used the word "drunk" and repeated it several times. So, she does not deny, ultimately, that she was drunk, but she says, "I have a clear recollection of what happened that night," and she does give a decent explanation of what happens that night. [ 30 ] Certainly there are some discrepancies in her evidence. In particular, the biggest one is probably the tattoos on the arm. It is kind of an irrelevant detail in that this is not an identification case where she is trying to describe somebody based on tattoos and that is the only evidence, or something like that. It turns out it is an irrelevant detail.

She was clearly wrong on it, but in my view it does not affect, in general, her credibility. [ 31 ] The accused gave evidence, and I have commented on most of his evidence, but he also called his friend Martin Bergeron to give evidence. And with respect to that evidence, some conflicts appeared in the evidence, and at times, when the parties were sober, there is no real explanation for why there should be a problem or a discrepancy. [ 32 ] With respect to Chelsey Bergh, as she put it, she was drunk. Can a drunk be wrong on some details? Absolutely, and clearly she was on some.

The issue is, was she wrong on the major details? [ 33 ] With respect to Mr. Bergeron, he says, the discrepancy, a fairly major one that I already pointed out is that he never sees Chelsey in the Cavalier. He does not try and jump in that car. He leaves those parties standing outside and he goes off with the girls, which was his intention. [ 34 ] Then, with respect to the damage, there are some photographs of the damage to the car.

He says, "Yeah, I'd have to look at my car to see exactly where all these were, but yeah, there was some damage, basically all down the side of my car, starting at the front fender." The accused says the kicks started at the passenger door, so there is a discrepancy there. [ 35 ] But more importantly is the reporting of this incident. It is a fairly new car, a year-and-a-half old. It would appear Mr. Bergeron was pretty proud of his car and yet, even though this incident happened now 11 months ago, he has not made a claim to ICBC about the car. He has never phoned and made a claim. Mr.

Orr claims that he made a claim to ICBC, and it seems bizarre to me that he would phone and report this to ICBC. He has got a car. He knows how ICBC works, and he is nothing but a witness to this. Yes, he was present and he would clearly be the person who would be describing what happened because Mr. Bergeron did not know, but it makes no sense that he would phone ICBC and make a claim. ICBC I doubt would take a claim from him because he does not own the car.

All he would be doing is reporting that, "I was in somebody else's car when some damage occurred," and ICBC, if they did get that call, might be expecting a call from the owner, which never comes. [ 36 ] But if you listen to the accused, the accused said, "Well, I phoned ICBC just to tell them, but Mr. Bergeron was right beside me and I handed the telephone to him and he carried on making the claim to ICBC." Mr. Bergeron says, "No, no, no, no, I wasn't there at all. I wasn't there when he made the report to ICBC and he never handed me the phone. I never made the claim.

I've never made a claim, and I'm sort of waiting. I've been told that I've got a couple of years." [ 37 ] Well, he may have a couple of years to make a claim, but again, one would think most people who have suffered damage to their car caused by somebody else would report it early on at a time when ICBC could look at the damage and assess it and that kind of thing. He never does anything. It is bizarre. [ 38 ] The other bizarre thing about the damage is that, again, I am not an expert, I am just a layperson, but I look at all of these photographs and none of them, frankly, look like they could be caused by kicks.

These are scrapes and brushes. Exhibit 1 is a good example. I do not know if there is any dent there or not, you cannot see a dent in the photograph, but there are one, two, three, four, five, six, seven, eight, maybe ten scratches that look like they might be somewhere between six and nine inches long, not the kind of thing you would expect to be caused by the heel of a boot. I cannot imagine how it would cause all of those linear scratches. [ 39 ] The next page, page 2, has at least ten, if not more, scratches which are vertical and horizontal. There is almost a 90-degree turn in those scratches.

So, I do not know, again, it seems to me highly unlikely that a boot would cause that kind of damage. If I were an adjustor for ICBC and saw this photograph, or saw the car with these damages to it, my first question would be, "How could a boot

cause damage like this? Can you sort of show me how this could occur?" I am not saying it is impossible; it just does not seem to match the evidence. And even if you look at the other photographs, there is really nothing here that is consistent with a boot. [ 40 ] Exhibit 5, there is just two marks in the dust. I cannot tell what they are, and the accused was not very helpful as to what each picture was and what they mean and where they were. So, I do not know when that damage was caused, or where. Is it possible that it was caused by Chelsey Bergh? Yes, it is possible. She was obviously mad at the accused.

She admits she tried to kick the car, and whether she kicked it once or kicked it six times I am not sure. She may have swung her purse at the car and caused these injuries.

Actually, the accused said she kicked the car but he did not really see her kicking the car, he said he heard the noises beside the car, so maybe that is possible. [ 41 ] But, at the end of the day, the two things which I rely upon in determining who is credible and who is not as to what happens here is, in addition to all the other things I have already commented on, the fact that the accused says numerous times, "I was not mad at her." I frankly do not believe that at all. I find he was extremely angry at her.

He was either angry at her because she was making advances to him, which she denies, or he was mad because she was rejecting his advances to her. But it is clear that these parties were mad at each other. So he is mad at her as he is driving down the road. He is mad enough to leave her on the side of the road and drive off in the middle of winter and leave her standing on the road. He has a change of mind when he finds her purse, but it does not minimize what he did by leaving her there. That is what a really mad person does, not what a person does who says, "Oh, I wasn't mad at her at all.

I was really happy to get rid of her and I just left her there." [ 42 ] And then at the car, if it happened the way he said and she kicks his car six times, again in his evidence he said, and it was put to him several times, he says, "I wasn't mad. No big deal. It wasn't my car. And not only that, she'll pay for it. ICBC will make her pay for it. So, not a big deal. Drunks do these things, and the fact that she just kicked my good friend's car and dented it didn't make me mad." That is illogical. I just do not accept that at all.

It really affects his credibility in a negative way. [ 43 ] The other key factor in this case is the one I have already touched on, and that is the photographs which completely corroborate the evidence of Ms. Bergh as to being punched in the face, and one could understand that Mr. Orr might get mad at her. I am not suggesting it is justified to punch somebody in the face, but one would expect that if somebody was kicking his car, as he put it, that he might get mad and do something. This, of course, is extreme and would not be justified in the law, but it does make sense.

He had a motive, according to him, to do some damage to her, be really angry at her for everything that she was doing to him. And again, I accept she was, in my view, a credible witness, I accept her evidence, and in the main I do not accept the evidence of the accused, Mr. Orr. [ 44 ] With respect to how one decides a case such as this, I agree with Mr.

Arnason that the case of W.D. , although I am not required to refer to it, is a case which is helpful in trying to determine credibility in matters where there is a discrepancy in the evidence, and different versions, and the accused gives a version of the incident which is totally at odds with that of the other witness or witnesses. [ 45 ] In this case, clearly, if I believed the evidence of the accused, his evidence would amount to a defence in that he denies that he touched her or caused her any physical harm.

I do not believe that, frankly, and that aspect of assessing credibility does not go in his favour. [ 46 ] Even if I did not believe his evidence, if his evidence raised a reasonable doubt as to whether or not he punched her in the face and caused these injuries, again, he would be entitled to an acquittal. But for all of the reasons and the factors that I have already mentioned, his evidence, in my view, does not raise a reasonable doubt. I find on all of the evidence that the Crown has proven the case beyond a reasonable doubt. I accept the evidence of Ms.

Bergh as to being punched in the face by the accused, and I find him guilty of this offence. W.G. MACDONALD Provincial Court Judge