R. v. K.B. Date:, 2012 BCPC 25

Citation: R. v. K.B. Date: 20110106 2012 BCPC 0025 File No: 84022-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BAN ON DISCLOSURE - CCC 486.4(2) REGINA v. KB ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown: I. Friesen Counsel for the Defendant: J. Dunne Place of Hearing: Port Coquitlam , B.C. Date of Hearing: March 1, October 24 and 25, 2011 Date of Judgment: January 6, 2012 [ 1 ] THE COURT: The accused is charged with assault causing bodily harm of one HR, hereinafter referred to as HR, on October 18th, 2009, contrary to s. 267 (

b) of the Criminal Code . [ 2 ] The alleged assault occurred at a house party in Anmore at the accused's father's home, which party was hosted by the accused's sister, JB, on the evening in question. On October 18th, 2009, Mr. B, Sr., was a member of the local RCMP detachment which appears to have conducted the investigation in this matter. [ 3 ] There is no issue in my view in this case as to whether or not the accused struck HR in his father's house on the evening in question. All lay witnesses who testified, save one, saw him do so. According to defence, there is an issue as to whether or not HR suffered bodily harm at all, or as a result of being hit by the accused. [ 4 ]

Section 2 of the Criminal Code of Canada defines bodily harm as follows: “bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature [ 5 ] In my view, having regard to the virtually unchallenged evidence of the accused as to his injuries and the photos of same entered as an exhibit at trial, this requirement of the charge is proven by the Crown beyond a reasonable doubt as to the nature and extent of HR's injuries. I will return to the causal issue raised by Mr. Dunne later in these reasons.

[ 6 ] The two most important issues I must resolve are whether I believe HR and I think more importantly, was the accused justified in using the level of force he did in the circumstances in question against the accused on the evening in question? [ 7 ] I will deal with the Crown evidence first, then the defence evidence, and thereafter the law and position of each party, and then conclude with my findings on credibility and responsibility. Crown evidence [ 8 ] HR, age 16, on October 2009, was then a student of Pinetree Secondary in Coquitlam in Grade 11.

He had gone to this school since Grade 9 and had various friends there. JB, the accused's sister, was not among them in October 2009, although he testified that he had once met her, he could not recall exactly when, in an off block from school at the nearby Douglas College. This meeting was a casual one and HR was very unsure how long before October 18th, 2009 it had occurred. [ 9 ] On October 18th he had met up with some friends initially at the Town Centre locally, and thereafter at a school in Coquitlam.

He said there was no drinking at the school, contrary to his friend's evidence, one S, who was there, and said there was drinking had that occurred. HR said three friends at the school, O, H, and one J, whom he then believed was a friend of JB's, convinced him to go to a party at her place in Anmore. J invited all of them to go. He left first and later texted HR with JB's address. HR thought he would be attending just a regular party with kids from Pinetree Secondary and he expected to see such people there. [ 10 ] He drove to the party.

After the alleged assault occurred, he told the police that a friend, one B, drove him and his friends to the party. He admitted at trial that this was untruthful. He said he had lied to the police about this aspect of his story because he only had a learner's licence and could only drive his car with a fully licensed adult present, and therefore was driving in essence unlawfully on October 18th, and did not want to get into trouble with the police because he had four youths with him on the night in question.

He said he drove himself, O, S and one H and S's girlfriend, A. [ 11 ] S testified that neither O or H drove with them. HR said he did not drink prior to his arrival at the party. S testified people, including him, were drinking at the Eagle Ridge School prior to departure. [ 12 ] In any event, they arrived at between 10:00 and 11:00 p.m., according to HR, and entered the B residence together. At the time, this home was owned and the residence of Mr. B, Sr. and his daughter, and Mr. B, Sr. was then away in the Maritimes at a football reunion.

The party hosted by his daughter, JB, was not sanctioned by her father, and her evidence was he did not know about it. [ 13 ] HR said that on entry to the party, he felt he was invited by people who were invited, who were friends with JB. He said he did not know before the party that he was not supposed to be there. When he arrived, no one said anything to him, such as, "You're not invited" or "Leave." He did not agree that JB did not want him at her party. [ 14 ] JB said she had either invited people, or that people would text her and get her consent to attend this get-together before attending it.

HR did neither. [ 15 ] The evidence varies as to the number of young people at the party. I find the total head count, so to speak, would likely have been somewhere between 20 to 50 and probably closer to 50, many from Pinetree Secondary, and most, if not all, between the ages of 17 to 20. HR was 17 at the time. Many or most were drinking alcohol and were in various states of sobriety, and there was noise, lots of it, including music. Some guests were very drunk. HR said the house was packed.

He knew some people from school, about half the people there, some well, and some were just classmates. [ 16 ] After they had been at the party for one-half hour to 45 minutes, they decided to leave. His friend, O, suggested they go because the party "was not that good". HR was otherwise unsure why he wanted to go. [ 17 ] HR said at the party he saw JB circulating. She passed by him several times, but he testified she said nothing to him until after he was beat up. He felt obviously she had been drinking, as she was not walking in a straight line, but felt she was not drunk.

She was a 4.5 on a scale of one to 10 with 10 being drunk. She looked nervous, mostly, as she passed by him. [ 18 ] HR spent his time at the party hanging out with friends inside and smoking cigarettes on the balcony of the B residence. He said he saw nothing at the party that caused emotional upset and denied that while there he had done anything to upset people. He said he tried to be polite at the party and certainly made no threats to anyone there. He saw no damage done to the B house. He also denied trying to steal anything from the house while there.

He denied speaking to one TJ, and could not remember her being there, nor her brother M. The sense of his evidence was that he had not spoken to him, either. [ 19 ] He denied he made any statements to anyone about burning the place down while at the party. He had no reason on the evening in question to feel any anger towards anyone until after he was beaten up. He was not mad or upset on arrival. He then felt normal. He saw no one else he felt was angry at the party. [ 20 ] HR became aware his friend J was leaving and had done so before he elected to leave. J before going had apparently told him why.

He said that KB was coming to kick people out. This evidence was admitted as going to HR's then state of mind. HR said in direct that at the party he did not exactly understand what J said, but months later was able to acknowledge to J that J had in fact said this. [ 21 ] Then in direct HR offered that J had said something about someone coming here to beat people up. He responded to J apparently that he was not going to let him, not meaning, he said, that on the arrival of this person that he was going to go and fight him, but rather in the sense that he would go and talk to him. That is what he did.

No one else was present to overhear this. J then left. HR did not. [ 22 ] On cross-examination he was asked: Q All right. And you knew that the brother was coming over to kick people out, correct?

A I didn't necessarily know that he was coming to keep people out because at that moment I didn't, like, fully understand what [J] said. Okay. [J] (phonetic) said something about someone coming here and like beating people up. And he said – [J] said that this might happen to him, right? And I said I'm not going to let that happen. I'm going to, like, you know, if he was going to beat you up, like I'm going to go there and, like, separate you two and not let him happen, and we'll get out of here.

But I didn't know that -- like he's coming here to, you know -- Q You knew that there had been problems at the party and that [JB's] brother was coming to the party, right? A I didn't know it was [JB's] brother. Q Who did you think it was? A I don't know. He said some guy's coming here. I had no idea who it was. ... Q But you don't know which guy, or what was said. You don't know if you were told it was [KB] or whether it was [JB's] brother. You just remember being told that somebody was coming over, correct? A Yes. MR. DUNNE: Is that clear, Your Honour? THE COURT: Yes. MR. DUNNE: Thank you.

Q And your statement was "I'm not going to let him -- I'm not going to let him do anything to you, [J]," right? A Right. Q Going to try to talk to him, then try to be a peacemaker; is that right? A Right. [ 23 ] This is a much fuller account than HR gave in his direct evidence and oddly suggests that HR didn't know JB's brother was coming, contrary to his direct evidence and to his earlier cross-examination on March 1st, 2011, conducted by Mr. Dunne as follows: Q And he's at this party and at some point he tells you [KB's] coming over, the brother's coming over to kick people out, right? A Yes. Q Okay.

A But at that time I didn't understand it. I mean, I got the fact that somebody is coming here to, you know, start complication, and I told him that "I'm not going to let him. I'm going to like back you up and try to talk to him with reason." That was about it, but he left. [24] HR said he remained downstairs the whole time he was at the party. At one point he was saying goodbye to S and other friends sitting on the couch in the TV room, which may have been the living room of the B home, just off the entrance door to the left. He was in the hallway at the door into this room. S was with A, his girlfriend.

HR said S was not going home with him. O was. [25] This is contrary to S's evidence. He agreed he was at some point sitting on the couch with his girlfriend who was intoxicated. He could not recall if O was at the party. He could not recall seeing HR inside and felt he first saw him outside after the alleged assault. He could not recall if HR was then sober. In cross-examination, S testified that HR had not said goodbye to him, that he was leaving. He said both in direct and cross-examination that HR was their ride home. He was going to go with him when it was time to leave. He planned to get a ride back with HR.

His only way back was with HR. [26] HR proposed in his evidence that S was somehow to get a ride with someone else. There were lots of people at the party. This makes frankly little sense. [27] HR did not see KB come in. After saying goodbye to S, HR turned while still in the hallway a couple of feet from the front door and saw KB for the first time with his sister, JB. He had never seen KB before. He was a half metre away. She was one metre away. He did not see him talk to JB on his arrival. He appeared very angry and JB seemed emotionally nervous. There was a bunch of people all around him.

He estimated five or six and could not recall who they were. They were all looking at him. [28] The first thing he recalled seeing when he turned was JB saying variously, "That's him" or "It was him" to her brother, and pointing at HR. He saw KB respond to JB while pointing at him, "Him?" or "That's the guy?" and she said "Yes." He responded, "What was me?" to both KB and JB. At the time he was a bit confused. [29] He denied that KB walked over to him in the hallway and told him to get out of the house or that he was asked to leave.

HR also denied that he refused to leave at this point and approached KB and stuck his chest out and said he was not going. In direct, HR said after he asked "What was me?" that KB started punching him with his closed fist pretty hard in the face for the most part, he estimated five or six times. He was unsure which hand he used. HR tried to ward off the punches by holding KB's hands. He recalled KB stopped and talked to someone. On cross-examination he testified later his friends told him it was O. Then KB started to hit him again. His evidence in cross-examination on point is as follows:

A Yes. I have something to add here. I -- remember when I said someone stop him, like -- and he stopped to talk to someone? Now that I refresh my memory, I remember it was [O] and then when he turned to [O], he said, "What, you want some, too?" And then he started beating me back, and this is where -- you know, when he landed some punches, then he stopped. I could grab his hands, you know, he was -- he was far enough for me to grab his hands and I wasn't like grabbing them, firmly, you know. I was just grabbing them. And then he said "You want some too," to me and then he beat me again.

I went down and then I -- I think -- I saw someone like fighting with him, right? But I ran out of the house. Q What did you refresh your memory from in regards to this person who you had conversation (indiscernible)? A We were just with friends and they were talking about it and they said it. Q All right. So -- A And I -- I remember -- Q -- somebody told you -- A -- something like that. Q -- that that's what happened? A Pardon? Q Someone told you that that's what happened? A Everyone says that's what happened. Q Sorry? A Everyone says that's what happened. Q All right.

So when you say you refreshed your memory, what you're telling us is what other people told you? A Yes. [30] It would appear to some extent HR initially was testifying as to an event he purported to recall, but when pressed in cross- examination, was really testifying as to what others had told him had occurred.

This is always a concern to the court, especially where, as here, the credibility of an important witness is in issue. [31] HR testified that shortly after this discussion, if one could call it that, KB hit him again and said he did not count the punches, but felt there must have been seven or eight on his face and head mostly. He was forced to go down and covered his face and put his hands over his ears. He said he was not a good fighter and was getting beaten up as he could not block all KB's punches. When he was on the ground, KB kicked him pretty hard two or three times.

He tried to block these blows, but he hit his hand and head. [32] He estimated the assault lasted about 30 seconds. At some point KB stopped and he was able to go outside. During the assault HR said he wanted to try to fight KB, but he could not and did not try, as he felt if he started, others would jump him and it would be worse. Nonetheless, he recalled after KB hit him, his friends did join the fight and at some point at least three people were on KB. [33] S testified that he made no comments that caused problems at the party and saw no one make any threats.

He could not recall any tension or discord at the party because he was looking after his girlfriend, A, who was sitting on the couch with him in an intoxicated state. He admitted to drinking alcohol himself earlier at the Eagle Ridge School. He was first aware there was a problem when he saw a whole crowd of people rush to the front door. He did not join the fight or see the fight. It seems, however, he did join the rush of people leaving.

It seems odd that S would not have observed an event involving two to four people said to have lasted 30 seconds and which is to have occurred right outside the room where he was seated. [34] MR testified for the Crown. He was invited to the party by his friend J, and went earlier than HR, arriving at about 9:30 p.m. He did not call HR earlier and tell him about the party and did not know he was coming. He said O and H had come earlier with J. They did not arrive at 10:00 to 10:30 when he saw HR arrive with him. He was not aware that O and H were uninvited.

On October the 18th he did not know how HR had got there. The next day he talked with him and HR then told him he drove. Clearly, he and HR had this day to some extent discussed the events of the prior evening. [35] MR said he did not drink any alcohol on October the 18th as he was driving. He saw HR at the party talking to friends and drinking a beer.

I believe this is the only evidence I heard about HR's consumption of alcohol on the evening in question, save that given by Constable Choi to the effect that at the station on October 18th or early morning of October 19th, HR did not appear to him to be under the influence of alcohol or drugs. He did not observe HR display any signs of anger or be hostile to anyone. [36] He saw KB come in the front door, not the rear kitchen door. He was then upstairs, but on the stairs coming down from the washroom, and was ten to 15 feet away from KB. He saw JB talking to her brother. This lasted less than 20 seconds.

He could not hear what they said. He saw no gesturing going on by them. At this point HR was standing with a beer in his hand in variously the living room, or between it and the hallway, talking to friends. He did not see HR say goodbye to S. [37] He then observed KB walk up to HR and throw a punch at him when they were five feet apart. He did not know how many punches he threw, but estimated a few or a couple of pretty heavy punches with both fists. The fight was in the hallway outside the living room or television room, and not in the kitchen. The whole thing happened very quickly.

[38] In his direct evidence, and in cross-examination, he said KB said nothing to HR prior to walking up to him. However, also in cross-examination, he said he heard nothing spoken between KB and HR before KB hit him, but agreed on the evening in question he was not all over the house, and did not hear everything that went on. Importantly, when Mr. Dunne suggested to MR that KB had said to HR that he had to leave the house now, and HR had said "No," MR said he did not recall this. [39] He felt HR did not even notice KB walk up to him. HR made no gesture or statement to KB. He did not have time to do so.

He just covered his face. He did not fight back. HR went down. KB kicked him in the face when he went down. He saw three to four kicks. It was like KB was kicking a soccer ball. The kicks landed on HR's body and face. MR then jumped on KB from behind to stop him. He grabbed him and wrapped his arms around him to try and stop him. He said KB was way bigger than him and he had difficulty pushing him away, but was able to stop him. [40] He heard O tell KB to stop. KB then started to attack O and punch him. MR tried unsuccessfully to separate O and KB.

H, a friend of O's, got involved and attacked KB when he was down, and then H ran away. MR saw H take KB down. He did nothing to intercept H. On cross-examination he said KB went down fighting with O and at some point O and KB were on the ground struggling together. The fight between O and KB occurred in the hallway and lasted less than three minutes. Both men were about the same size. MR saw no one kick KB. Eventually O backed away and went outside. [41] I return to the evidence given by HR. He said after he went outside there was no more fighting there. He was confused.

He said he was then bruised and had blood all over his shirt. He could take chips out of his front teeth. Eventually he went to a dentist in March 2010 to get his teeth fixed. [42] He did not return inside the B home, but tried to. JB was at the front door.

In his direct evidence he said he spoke to her and said, "Hey, [JB], I got beat up for no reason, so just let me in to wash my face and then I'll leave." Her reply was, "No, don't come to a party that you're not invited to." On cross-examination on October 24th, 2011, HR added somewhat to this brief discussion as follows: A I went up to her and I said, "Hey, I got beat up for no -- like what happened? I got beat up for no reason. Look what you did to me. At least -- you know that I didn't do anything, so let me come in and wash my face." This evidence is somewhat different.

He also agreed this content was not in his police statement. HR responded by saying to JB, "Fuck white people." He agreed he was then really mad. He felt it was unfair that he got beat up for no reason. JB did not then say to him, "You threatened me to burn my house down. That's why you got your ass kicked." Even if I accepted HR's evidence on this point, nothing in my view turns on JB not detailing a reason for her brother's actions. [43] KB thereafter passed him outside, coming out of the house to move his car that was parked in a way so that no one could get out or leave.

On cross-examination, HR agreed he had told the police on February 7th, 2010 that KB had stood in front of his car, and that he and the driver of his car, described as "We", had to stop and then he, (meaning KB) came through the passenger seat where he was sitting. He guessed he tried to open the door, but he could not as it was locked, and his friend drove off. When he was asked if any of this happened by defence counsel, he testified, "Yeah, that happened." None of these events were offered in his direct evidence at the trial.

Further on cross-examination, he admitted that he might have told the police that when KB moved his car, that he tried to hit him with it, but agreed that he did not try to hit him with his car. He guessed he said this. He remembered saying this to the police. [44] Outside S grabbed HR's car and drove him to the RCMP detachment near where he lived. HR went in. S did not. As he said at first probably HR asked him not to, and then said probably HR had not said this. [45] HR said the police called an ambulance.

He went to a local hospital, was checked out, and then returned to the RCMP detachment where he was photographed at about one o'clock a.m., I assume on October 19th, 2009. He said the photos were taken about one-and-a-half to two hours after he got beaten up. Constable Choi seemed to suggest the photos were taken before HR went to the hospital. [46] I have reviewed these photos filed in evidence at the trial. They show a multitude of red marks on HR's face. His right eye appears badly bruised, and is almost closed. His face and nose is quite swollen in appearance. His left eye is blackened.

One photo shows a cut on his right hand middle finger. The hand is covered with blood. [47] On cross-examination HR admitted he had lied to the police, namely Constable Choi, that he had gone to see a doctor after the alleged assault, when he had not. [48] He agreed that the whole story of B driving his car was an elaborate lie he told the police so he would not get into trouble. He also agreed that at some point MR had gone to the police with him and that he had arranged for him to go.

He admitted he told MR to lie about B driving his car with the police, but not about what happened, I understood, at the party, because he wanted things to match. He guessed it was only MR that he talked to about supporting his lie to the police about B. MR in cross-examination said HR did not tell him to say B drove on October 18th if anyone asked him. HR said MR, in his understanding, was prepared to lie to the police about the driver Ben. [49] HR also seemed, in his cross-examination, to agree he had misled the police about who was there and who was not at the party.

His evidence as to how this may have occurred is not really clear, nor for that matter is Constable Choi's on point, which I have studied. [50] MR in cross-examination said it was his idea or request to go to the police to give a statement, but agreed he had gone with HR. He testified that he had not discussed the matter at all with HR before giving the police a statement. He was not told by HR not to mention H or O to the police. [51] MR testified that HR was not invited to JB's party.

S testified that he was not asked to leave but said "We", meaning his group, "did come uninvited." The evidence of the complainant is to the same effect. [52] I turn now to the evidence of JB, the only witness called by defence. She was 16 when the party was held, clearly without her

dad's consent and approval. She recalled at about 11:30 p.m. about four Persian people, as she described them, arrived together she didnot know. She did not see them come in. They were uninvited and had not, including by a prior text, sought or been given permission tobe there at her party. [53] Shortly after their arrival, a friend, TJ, came up to her crying and told her that they, the group of four, had threatened her brotherand caused her to cry.

The four were causing a problem. [54] She admitted she did not see this group of four Persian youths causing any problems at her party, but said they did not look likethey were socializing. She felt like they looked like they were there to steal stuff. She worried when people showed up uninvited. Sheagreed the group of four was not causing a ruckus in her dad's home, nor were they bothering anyone. [55] Save for the four Persians, the party was fine. There were no outbursts or fights. She agreed she had never asked any of thegroup of four if they had done what TJ alleged they had done.

She had asked TJ to come to court, but had received no reply from her. [56] JB went to HR and said she wanted them to leave now, as they were not invited. He said "No." She waited ten minutes andasked him a second time to leave and he said "Fuck you, I'll burn the house down." I observe that this exchange or series of exchangeswas not put to the Crown witness HR by defence in cross-examination.

He did, of course, testify in direct that JB had not asked him toleave and that he had at no time made any threat, including specifically this one. [57] After HR's second refusal, she called her brother, KB, and asked him to come over. She told him there were some Persian guysin the house she wanted out. He did so 20 to 40 minutes later, entering his dad's house through a side door in the garage, that led to thekitchen. They talked. She told him that the group of four Persians had threatened her and TJ's brother, and wanted them to leave, andthat she had asked them twice to do so.

He asked her "Who are these guys?" She pointed to HR and told him, "That's the one," meaningthe one that she had asked to leave. She told KB he had made TJ cry. They were then six to seven feet away from HR, who was in thehallway. He was three to four feet from the front door that could have been open. Music was going and there was lots of noise frompeople talking. [58] She knew her brother was angry at this point in time as he knew she was scared and in trouble. She felt then she was, as someonewas in her house that she had asked to leave. [59] KB went over and talked to HR, according to JB.

She heard him say "Get out now." HR said "No." On cross-examination sheadded, "I'm not leaving." She heard KB say "No, I'm serious. Get the fuck out of my house." She at the same time observed him stickhis chest out at KB, while standing face-to-face with him one foot away. On cross-examination she added that when he stuck his chestout, he smirked and showed his teeth.

HR was not cross-examined on this detail. [60] I should mention that HR's unchallenged evidence was that on October the 18th, 2009 at age 17, not 16, as he said, he was 136.4pounds in weight, or 62 kilograms, and three inches shorter than 175 centimetres, which I understand to equate to 65.4 inches in height,or five foot four inches. He looked every bit of this in court and not much more. [61] HR described KB to be a big guy, much bigger and taller than him on October the 18th and an athlete. JB said he was six foottwo inches, or ten inches taller than HR, and as well worked out.

His and her description of the accused meets with my observation ofhim sitting in my courtroom throughout the trial. [62] To continue with JB's evidence, after HR stuck his chest out, KB hit him first in the face. Then she observed two or three ofHR's friends, whom she did not know and had not invited, all come at once and jump on her brother KB. It all occurred very fast. Thefight was in the hallway inside. [63] After HR left, she went outside and saw her brother bleeding from the mouth. He then left. After about 15 minutes HR returnedto the door and wanted to wash his face.

She said, "No, get out of my house," and he swore at her. He was mad. She closed the door onhis bleeding face. [64] She said she did not call the police on the evening in question, as her dad was an officer with the RCMP and she did not want toget into trouble. In cross-examination she said she could not recall all the details of the fight her brother was involved in because she wasshocked, scared, and quite traumatized. She could not recall one person coming down the stairs and grabbing her brother. She saw herbrother punch HR once only. She never saw him kick HR on the ground.

She did not recall seeing a big person trying to separate KBfrom his assailant. [65] I turn now to the legal principles in this matter. [66] Counsel have provided the court with six cases, as follows in date order:

(1) R. v. Kellington, (1972) (BCSC), 7 CCC (2d) 564;

(2) R. v. Reed, 1999 unreported, No. C991025 Vancouver Registry, Supreme Court of British Columbia;

(3) R. v.Rice, [2005] S.J. No. 826;

(4) R. v. Martinez-Marte, 2006 BCPC 162 , 2006 BCPC 0162;

(5) R. v. Nobile, 2006 O.J. No. 5674;

(6) R. v. McKay, [2007] No. 16, Supreme Court of Canada, allowing an appeal from the Manitoba Court of Appeal judgment reported at2006 MBCA 83 , 2006 M.J. No. 362. [67] In Nobile, Grossi J. defined an assault in paragraph 9 as follows: An assault is committed when without the consent of another person force is applied intentionally to that other person directly orindirectly. [68] Section 265(1)(

a) of the Criminal Code so states. This case involved charges of aggravated assault and criminal negligencecausing bodily harm against an accused bouncer, who had seriously injured a bar patron when ejecting him late one evening. [69]

Section 267(

b) sets out the offence for which KB stands charged, I referred to the definition of bodily harm in s. 2 of the Code at

the outset of these reasons. As I have said, this aspect of the case is a non-issue, in my view. [70] Grossi J. dealt with the criminal intent or mens rea required for an assault at law in paragraph 14 of Nobile as follows: 14. 2. Mens Rea: Was it objectively foreseeable that Mr. Nobile would cause bodily harm to Mr. Locke? The mens rea for aggravatedassault is the mens rea for assault (intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim doesnot consent) plus objective foresight of the risk of bodily harm.

It is not necessary that there be an intent to wound or maim ordisfigure... [Authorities' citations and citations omitted]. [71] The trespass offence was considered by the court as well. In Nobile, the bouncer was said to have been justified in removing thepatron from the premises, pursuant to s. 41(1) of the Criminal Code. This

section and its companion, subsection (2) state as follows: 41.

(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or actingunder his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to removea trespasser therefrom, if he uses no more force than is necessary.

(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a personlawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault withoutjustification or provocation. [72] The effect of s. 41(2) is explained by the Ontario Court of Appeal in R. v. Baxter, 1975), (ON CA), 27 C.C.C.(2d) 96, referred to at paragraph 19 in R. v.

McKay, which I shall come to shortly, by Hamilton J.A. as follows: 19 The Ontario Court of Appeal also considered the function of s. 41(2) in relation to s. 41(1) and the self-defence provisions of theCode.

After noting that the meaning of s. 41(2) was not entirely clear and relying on commentary from Stephen, History of the CriminalLaw of England, the court wrote (at pp. 114-15): [I]ts effect is not to convert mere passive resistance into an assault but merely to provide that if any force is used by the wrongdoer inresisting an attempt to prevent his entry or to remove him, such force is unlawful, and hence an assault.

The amount of force that may beused to prevent or defend against any assault actually committed by the wrongdoer depends upon the ordinary principles of self-defenceas set out in s. 34 of the Code. [Emphasis added.] As well, paragraphs 24 and 25 of his reasons deal with the effect of this provision. [73] Grossi J. held at paragraph 37 in Nobile that the defence under s. 41(1) of the Code has four elements, as follows: 1. The accused must be in possession of land. 2. His possession must be peaceable. 3. The victim of the assault must be a trespasser. 4.

The force used to eject the trespasser must be reasonable in the circumstances. [74] Mr. Dunne, for the accused, submits these same four elements should be considered by this court in reaching my decision. [75] Bruce PCJ in R. v. Martinez-Marte applied virtually these same factors at paragraph 28 of her decision, save she defined thefourth element as: (4) that the accused resisted the Complainant's attempts to remove him from the property. [76] In my view, Grossi J.'s statement of the four elements more closely resembles the actual Criminal Code language in s. 41(1), andis in accord, as well, with R. v.

Gunning, (2005) 2005 SCC 27 , 1 SCR 627, quoted with approval by the Manitoba Court ofAppeal in R. v. McKay. [77] Grossi J. considered whether the patron in his case was a trespasser. The Crown had argued that he did not become so until thatperson had refused a request to leave the premises by a person in possession. After considering various authorities, none of which arebinding on this court, Grossi J. held in paragraph 51 that: ...the element of notice is not essential to establish that a person is a trespasser pursuant to s. 41 of the Criminal Code. [78] Mr.

Nobile had not first asked the patron to leave before placing him in a headlock and marching him through the door of thepremises.

He said this in paragraph 52 to 53 of his reasons on point: 52 In my view in the circumstances of the present case (a situation of exigent circumstances where the individual in possession of landfears for the safety of others on the property has a duty to prevent disorderly conduct, and where swift action is necessary to preventfurther potential danger), an occupier is not realistically expected to give notice to the trespasser before he or she removes him by meansof reasonable force. 53 If, for example, a fist-fight breaks out in a bar between two patrons, I would imagine it absurd if the occupier was required toverbally ask the patrons to leave before applying a reasonable amount of force to break up the fight, eject the offending patrons and de-escalate the situation.

I am of the opinion that once an invitee's purpose changes from lawful to unlawful while on the premises, theybecome a trespasser. [79] Ultimately Grossi J. held that the Crown had established a lesser offence of common assault against the accused, but that the

defence had made out a justification for his use of force under, inter alia , s. 41 of the Criminal Code , and that Crown had not proven beyond a reasonable doubt that the force used by the accused to eject the patron was unreasonable in the circumstances.

These circumstances, I think, are alluded to in the above paragraph 41 of Grossi J.'s reasons where he states that the elements of the offence, and I think he means the four elements of s. 41(1), should be established in the context and the definition of trespasser will be highly case specific. [80] In Rice the accused used force to expel a guest, one Millar, from a house party at his home during which expulsion he was pushed by the accused on the back stairs out, and fell and broke his leg. The accused was charged with assault causing bodily harm.

Prior to the expulsion the accused had confronted the guest, provoked an altercation and threw the first punches in a fight which ensued. Irwin PCJ found as a fact that the accused, before using force to eject Mr. Millar, made it clear to Millar in words and actions that he was an unwelcome guest. Irwin PCJ held he was therefore not unlawfully assaulted within s. 34(1) of the Criminal Code .

He considered s. 41 of the Code and said this in paragraphs 10 and 11 of his reasons on point: 10 While the complainant's initial status was as a guest in the accused's residence, once it became clear to Millar that he was no longer welcome, he technically became a trespasser. 11 As a trespasser, if Millar resisted his eviction by Rice, then he would be deemed to have committed an assault without justification or provocation. But Millar was not resisting his eviction. On the contrary, he was attempting to leave.

He asked his sister to get their shoes and said words to the effect "Let's go." [81] As to s. 37 of the Code , Irwin PCJ said in his view it only provided justification for the use of force when physical harm was threatened or experienced.

He found that pushing Millar down the stairs when Millar had earlier agreed to go was not necessary, and an unreasonable use of force with no justification. [82] In Martinez-Marte , Bruce PCJ, as she then was, dealt with an accused husband, separated from his wife, charged with assaulting his wife in the hallway outside their former apartment home, whereat the wife lived following separation with the parties' two young children. The accused was by agreement to meet his wife and hand deliver a cheque for child support to her.

She met him in the lobby of her building and when it became clear he did not have the required amount, she told him he must leave the building, he was not welcome in the apartment. In an effort to see his two children, he followed her upstairs to her apartment, and the alleged assault occurred in the area of the apartment door while the accused was attempting entry, and grabbed his wife's head and neck as she attempted to bar his entrance. The wife admitted to struggling with the accused, and attempting to push him out the door, and said she might have grabbed his shirt in so doing.

Bruce PCJ rejected the complainant's version of events. She found in grabbing the accused's shirt, the wife assaulted him. The issue then arose was his response thereto justified as self-defence, which she felt depended on whether the circumstances of the case were governed by s. 41 of the Code , which dealt with assault by trespass.

Section 41 was said to be one of several provisions in the Code that described circumstances in which a person may resist an assault by the use of force. There was in her view no issue as to the excessive use of force. She held in paragraph 26 that before any of the provisions, 35, 37, 38 or 41 applied, Crown must still prove an assault had been committed, and that the deeming provision in s. s. 41(2) applied only to the elements of provocation and justification, citing R. v. Kensington in error, I think, meaning to refer to R. v. Kellington , [1972] B.C.J.

No. 440 , which citation she referred to in her reasons at paragraph 26. She stated the issue she had to decide, which I think is in essence the issue I must decide in paragraph 27 of her reasons as follows: [27] In this case, the accused admitted he intentionally used force against the Complainant and, in the circumstances, I find it was clearly without her consent. His conduct thus falls within the definition of assault. The issue then becomes whether he may defend against a charge of assault by raising self defence under Sections 35 or 37.

Whether or not self defence is available to the accused depends upon the proper application of

Section 41... And then she set out that provision in the Code . [83] Clearly in the case at bar, the accused, who did not testify, therefore made no such admission. But that said, it is not in dispute that he struck the complainant, HR, first with at least one punch to his face. Bruce PCJ found the wife to have been in peaceable possession of her apartment at the time of the alleged assault, and in paragraph 31 said this: [31] Addressing the third requirement, a trespasser is a person who enters upon property unlawfully or, having entered lawfully, commits

an act in furtherance of an unlawful purpose. The accused admits he was no longer residing at the apartment on the date of the alleged assault. While he continued to be responsible for paying the rent on the apartment, this obligation did not give him a right to enter the premises without the Complainant’s permission. The accused acknowledged that he did not have the Complainant’s consent to enter the apartment on the day in question and that the Complainant had demanded that he leave.

I thus find he was a trespasser. [84] As to the fourth element, Bruce PCJ said that the Crown must prove an overt act of resistance in response to the complainant's demand that he leave the apartment. She said passive resistance or a mere refusal to leave upon a demand being made did not convert the accused husband's trespasser's actions into an assault, citing R. v. Kellington at paragraph 3 .

She held the accused did actively resist his wife's efforts to bar his entry, and intended to prevent her from or resist her efforts in removing him from the apartment, and that in essence s. 41(1) of the Code did not justify his actions, and found the husband guilty. [85] R. v. Kellington involved an appeal from a conviction of an assault charge laid under s. 41(2) of the Code against a protestor who refused the leave the Vancouver office of the City's Social Service Department upon request of a municipal office employee working therein, and the police later attended.

The accused sat in an office chair, refusing to leave. The employee put his hand on her shoulder, asked her to leave, and the police then arrested her and took her away. The trial judge found the resistor/protestor never used any overt force at any time and only demonstrated passive resistance to the police and office worker. Kirk Smith J. said the issue on appeal was whether an overt act was required on the part of the trespasser to justify a conviction, and the trial judge's conviction was quashed.

Kirk Smith J. said this at paragraph 3 of his reasons; I quote: I have concluded that the appellant is entitled to succeed. Despite the persuasive argument of Crown counsel, I find myself unable to distinguish the decision of the Manitoba Court of Appeal in Pockett v. Pool (1896) 1896 CanLII 141 (MB CA) , 11 Man. R. 275 . It was

there decided, under the then Code's s. 53 (now Code s. 41(1) and (2)), that a trespasser in the appellant's circumstances is not guilty ofan assault merely because of refusal to leave upon the order and demand of the person in peaceable possession of the property, and thatwhat is now [Criminal] Code s. 41(2) does not apply unless there is an overt act on the part of the person in possession toward removalof the trespasser, and an overt act of resistance on the latter's part. [86] Kellington was followed in Reed at the trial level.

This case is an appeal by the accused from convictions on two counts ofwilfully disturbing a religious worship and being at a religious meeting, wilfully disturbing its order, under s. 176(2) and (3) of theCriminal Code. He was acquitted of assault by trespass, being Count 3 on the information before the court. The accused, who wasdisturbing a Jehovah's Witness meeting was approached by a congregation member who put his hands on his shoulders and asked him toleave, and he refused.

The trial judge, citing Kellington, said the law was clear in British Columbia, that simply refusing to leave aproperty, absent some overt act by the trespasser, was not an assault. [87] In paragraph 21, Catliff J. rejected Mr. Reed's arguments that there had been any errors of law committed by the trial judge. Nonetheless, as I read the reasons of Catliff J., there was really no appeal by the Crown for Mr. Reed's acquittal on Count 3, and oddly,Mr. Reed, who was self-represented, agreed on appeal he should have been acquitted on Count 3 on other grounds.

Therefore in myview, Reed ought not to be seen as the Supreme Court of British Columbia much later in time in the year 1999 endorsing Kellington'sratio. [88] Finally, in McKay, the accused brandished a knife and wounded a trespasser, one Pashe, in the face with it when he would notleave his house following a house party. He was charged with an aggravated assault. The trial judge acquitted the accused, holding thatPashe was a trespasser and no longer an invitee, having been earlier asked to leave, and held pursuant to s. 41(1) of the Code that theaccused used no more force than necessary in evicting him.

The Crown appealed on the basis that the trial judge misconstrued the effectof s. 41(1).

Hamilton J. of the Manitoba Court of Appeal said this in paragraph 10 on the effect of s. 41(1): 10 The trial concerned the fourth element, which has two requirements: firstly, that the force used is only for the purpose of preventinganother person from trespassing or removing a trespasser; and secondly, that the force used must be reasonable in all of thecircumstances. [89] Hamilton J.A. found that it was clear McKay's actions in wielding a knife were directed at the sole purpose of evicting Pashe,and not, for example, in punishing or harming him. [90] Paragraph 12, dealing with the requirement for reasonable force, Hamilton J.A. said: 12 As to the second requirement, what is reasonable force will vary from case to case according to the circumstances.

However, as willbe seen, just as it is never reasonable to apply deadly force intentionally in defence of property, neither is it reasonable to use a weaponagainst the trespasser solely for that purpose. The case law demonstrates that an intentional killing or intentional use of a weapon willonly be justified where self-defence becomes an issue.

This interplay between defence of property and self-defence originally developedfrom the common law and rested on the general principle that necessary force had to be proportional to the harm sought to be avoided. [91] In paragraph 14 he traced out some old English common law, and concluded his comments on point in paragraph 15 and 16 asfollows: 15 This early English case law and commentary speak to three principles: firstly, defence of property alone will never justify the use ofanything more than minor force being used against a trespasser; secondly, more than minor force will only be justifiable where thecircumstances permit the accused to rely on self-defence; and thirdly, where the circumstances give rise to self-defence in the home, thedefence of property will not require the householder to retreat, as is required in the ordinary case of self-defence. 16 In my view, these principles just referred to are integral to the Canadian case law.

A review of Clark, Baxter, Figuera and Alkadriwill demonstrate this. I have already commented on Gunning. Clark and Alkadri concern killings of trespassers. Baxter and Figueraconcern injuries to trespassers. [92] He noted the accused was not relying on self-defence to justify his actions, the aggravated assault, and said as there had been noovert active resistance by Pashe, s. 41(2) was not a relevant consideration. As well, he found s. 41(1) was not available to McKay tojustify the aggravated assault he committed, because he had intentionally used a weapon to remove Pashe.

The Manitoba Court ofAppeal replaced the trial judge's not guilty verdict with a finding of guilt and the accused then appealed to the Supreme Court of Canada. [93] The judgment of the Supreme Court of Canada is very brief, but I think very important for purposes of the case at bar. McLachlin C.J. for the court said this in very brief reasons: 1 We agree with the Court of Appeal’s decision to set aside the acquittal (2006), 2006 MBCA 83 , 211 C.C.C. (3d) 74. Defence of property under s. 41 alone could not justify the commission of the aggravated assault alleged in this case.

We are notsatisfied, however, that the findings of the trial judge suffice to ground the conviction entered by the Court of Appeal. In particular, thetrial judge made no finding that the appellant had intentionally stabbed the complainant. Moreover, he expressed reservations about theoverall reliability of the evidence. 2 In so concluding, we should not be taken as endorsing the Court of Appeal’s analysis on the scope of the defence of property.

Byway of clarification, we should not be taken as endorsing the view that “defence of property alone will never justify the use of anythingmore than minor force being used against a trespasser” (para. 15) or that, in all cases, “the defence of property alone will not justify theintentional use of a weapon against a trespasser” (para. 23). 3 The appeal is allowed, the conviction set aside, and the matter remitted to the Court of Queen’s Bench for a new trial. [94] In the result, McKay's appeal was allowed, his conviction set aside, and a new trial was ordered.

[95] The effect of paragraph 2, taken in context, may well be that in the appropriate case a ramping up of the level of force used, and which is reasonable in defence of one's real property under s. 41(1) of the Code against a trespasser, is available as a justification to one in peaceable possession of same. [96] It is difficult to see that R. v. Kellington is still good law in this Province in light of the comments of the Supreme Court of Canada in R. v. McKay . Position of Defence [97] Mr. Dunne went first in closing argument, the defence having called some evidence. I will attempt to summarize Mr.

Dunne's various and I think more important submissions including in reply, all of which I have considered, whether referred to in these reasons or not. 1. JB was in peaceable possession of her dad's home, where she lived in Anmore on October 18th, 2009. Her guests at her party were invited. 2. Her brother KB acted under her authority when he came over. 3. HR was never an invited guest. He was therefore a trespasser within s. 41 of the Criminal Code , ab initio , and a problematic one. 4. I should reject HR's evidence where it differs from JB's and accept hers as truthful.

In the result JB twice asked HR to leave and he twice refused, and the second time HR responded, "Fuck you, I'll burn the house down." 5. KB asked HR to leave twice. 6. HR twice refused. On the second occasion stuck his chest out at KB. 7. JB needed no reason to tell HR to go. It was her house. 8. HR not only refused to go, but resisted going and resistance to leaving premises when asked is what is required under s. 41(2) of the Criminal Code , not physical resistance. 9. Bodily harm is not established and not admitted to. HR's lack of efforts to get treatment are suggestive his injuries were not serious. 10.

It is not clear due to the fast melee that followed KB's first blow, that KB caused the injuries seen in the photos to HR. 11. The force used by KB was reasonable in the circumstances. 12. The test in s. 41(2) is not whether other options were available to the accused. He, for example, is not required to call the police. There is a continuum of force lawfully available. Had KB hit HR with a baseball bat, this would have been excessive. 13. KB was really dealing with four persons who refused to leave. It was reasonable to do so quickly and to make what Mr. Dunne referred to as "a statement". 14.

When HR resisted leaving, he is deemed to commit an unprovoked assault against KB (see s. 41(2) ). 15. What can KB do in the face of this? In essence, Mr. Dunne said he could lawfully do what he did and any assault of the complainant not admitted to was therefore justified. Position of Crown [98] The Crown said there is no evidence this was a closed party. If I find it was an open party and believe HR's evidence that he was not asked to leave, then he was not a trespasser.

Even if I accept JB's evidence that HR puffed his chest out and smirked, this was not an assault by trespass. [99] There was no perceived threat by KB. HR weighing as little as he did and being much shorter was no threat to KB. [100] Without an assault by HR, there can be no self-defence by KB. There was no active resistance by HR, at most, he acted in a passive way. An overt act of resistance is necessary to bring s. 41(2) into play. Passive resistance is not enough. The force KB used, even if I accept JB's evidence as truthful and preferred over HR's, was unreasonable in the circumstances.

Other options were available. [101] A puffing of HR's chest, together with his smirking and showing his teeth, did not justify an assault or a punch, let alone a number of punches and kicks, which is not a reasonable response. [102] MR was a good witness. His evidence corroborated the evidence of the accused as to the way the assault occurred. [103] I should find that the assault which occurred was not justified and that the Crown had proven its case beyond a reasonable doubt. [104] This is, as with Mr. Dunne's submission, at most a rough

summary of the main points. Credibility

[105] Certain of the principles the court can use in assessing credibility of witnesses who testify are conveniently set out in a judgmentof Ann Rounthwaite P.C.J., of this court, in R. v. Parent, 2000 BCPC 11. I will not repeat them all. One is the sense of the evidencewhen weighed with common sense, does it seem impossible or unlikely, does it make sense? This principle was alive and well in thisProvince some 60 years ago and is referred to in Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354, a judgment of ourCourt of Appeal, often referred to both in civil and criminal cases. [106] Trial judges are directed to assess the story of a witness as to whether or not it is consistent with or in accordance with thepreponderance of probabilities in the case.

As well, in a criminal case, the trial judge must remember the Crown must prove its caseagainst the accused, pursuant to a very high standard beyond a reasonable doubt, and this proof includes that the force KB used wasunreasonable, and that his conduct was not justified by s. 34, 37 and 41 of the Criminal Code. (See, for example, R. v. Rice, above,paragraph 6.) [107] Clearly a judge can believe and accept all, some, or none of a given witness's testimony. There is no dispute in this case as to agreat number of facts relating to the events of October 18th, 2009.

No useful purpose will be served in setting them all out, relating tothe party, when it occurred, who was there, the noise factor, drinking and so on, and I think, too, whether HR and his friends were invitedguests or trespassers. I will return to this point very shortly. [108] What really matters in this case is what really occurred in the space of likely less than 30 seconds between the accused and HR. [109] It is true the accused did not testify. He has a right to remain silent and not testify under our Charter, and his failure to do socannot be held against him.

Nor is there any obligation for him to marshal witnesses or call witnesses in his own defence, whether or nothe chooses not to testify. His legal obligation is not to establish his innocence. Rather, as I have said, it is for the Crown to prove thecharges against him beyond a reasonable doubt. All that I think can properly be said about his choice not to testify is the obvious, I donot have the benefit of his evidence in reaching my decision in this case. [110] I return to the issue of HR's status at this party.

In my view, the correct answer for this question does not turn on whether Ibelieve him or JB, the party host. There is no evidence he was invited. His friends, MR and S, seem to admit that their group wasuninvited. There is no clear evidence that a friend of JB's, who was invited, invited HR or any other person in his group of four, or evenif this occurred, if such was a proper invitation sufficient to clothe HR and his three friends with the legal status of an invitee.

He had nocolour of right to be at the party or in the B home, nor did any of his three friends. [111] I completely reject any analysis of this evening that would suggest this party in question was somehow an open party and that allcomers were welcome, regardless of who they were. Whatever might be said about JB's decision to hold it in her father's absence andwithout his knowledge, certainly her evidence that she either invited guests, friends or by text authorized their attendance, was notchallenged by Crown counsel.

The party was therefore in my view a closed private party and only invited authorized guests, if you will,had a lawful right to be there. Anyone else, including HR and his three colleagues were interlopers and I find all trespassers, as this termis commonly understood in the English language. This fact is not, in my view, seriously in dispute in this case. Nor is the fact that as thehost of the party, JB, a resident in her father's home, was in peaceable possession of the home. The accused was her brother. She calledhim to come over to deal with a group of people, all of whom I have found to be trespassers.

When he came over, there can be noquestion that he did so, in essence, and in fact acting under her authority, whatever one might say about the later lawfulness of hisassistance, and I so find. [112] I also note that there is no disagreement in the evidence that the accused hit HR first with a punch in the face at least once. HRand MR testified there was more than one punch thrown by KB. The photographs, in my view, corroborate this. My common sense tellsme that HR was hit more than once. JB did not deny that this was so.

This was assaultive behaviour by KB against HR unless justifiedby virtue of s. 34, 37, or 41 of the Criminal Code. The existence of this justification, if you will, is the real issue in this case and whetheror not Crown has proven beyond a reasonable doubt, both that the force that KB used was unreasonable and a lack of justification forwhat he did. [113] There are important differences in the evidence of the two Crown witnesses, HR and MR, and JB as to how the melee occurredin which HR sustained reasonably serious injuries.

My assessment of the credibility of these witness's testimony moves centrally into thefacts that I must now resolve to decide this case, particularly having regard to the provisions of inter alia s. 34, 37 and 41 of theCriminal Code in accordance with the principles in the above referred to cases, and having regard to the requirements of the well-knowncases of R. v. W.(D.) and R. v. C.W.H. in our Supreme Court of Canada and British Columbia Court of Appeal respectively. [114] I do not find HR, save for two areas of his testimony, to be a credible witness, for a long list of reasons, some of which I willdelineate.

I will deal with these two areas and his overall lack of credibility before assessing the credibility of the other witnesses whowere called to testify. [115] HR lied to the police about a number of things, including who drove his car to the party. He himself agreed it was an elaboratelie. I accept this evidence as truthful and accurate. Crown points out that this was with respect to a peripheral matter, which really hadnothing to do with the fight, wherein Crown says the accused caused HR to suffer bodily harm.

This is true but, in my view, overlooks anumber of factors. [116] On the night in question HR was an "L" driver, broke the law throughout in driving, I assume, a family car without an adult fullylicensed driver being present. This was clearly a conscious decision he made no doubt in hoping he wouldn't get caught and have to facethe consequences.

When it occurred to him, perhaps on the way to the RCMP detachment on October 18th, 2009, that exactly who wasdriving might come out in discussion with the police, very quickly I think he invented one B as the driver and even provided a surname,which I have every reason to believe he would have had to spell to Constable Choi at some point. [117] It is a serious matter indeed to mislead the police who are clearly embarking on a criminal investigation, which can lead to acriminal charge in the appropriate case. And the investigation was not related to one somehow remote from him.

It commenced as aresult of his attendance and complaint and was for purposes of dealing with the alleged perpetrator of violence on the victim, HR. So Ifind this elaborate lie is a very serious matter, and that it casts a doubt or a pall over the trustworthiness of what HR told me in court and

whether I should believe it. [118] HR originally told the police inaccurately his skull was cracked and later recanted the suggestion in discussion with Constable Choi, prior to his trial, unlike the above elaborate lie which was only corrected in court. [119] HR told the police about a medical consultation which never occurred. [120] There are external inconsistencies in his evidence compared with that given by his friends, which granted, taken one by one, are not perhaps material, but when considered with all other factors that bear on his trustworthiness, and reliability as a witness, augment or support my above finding. [121] Immediately prior to the fight he said goodbye to S, whom he had driven to a somewhat remote area in Anmore at the outset, namely the B home.

He said S was to somehow return on his own, together with his intoxicated girlfriend, A. Surely this evidence is nonsense. S said HR was his ride home, and in fact drove him home or to the RCMP station after the fight. MR did not see HR say goodbye to S. [122] HR's evidence as to the identity of who he drove to the party differs from that of S. HR said he later arranged for MR to go to the police. MR said it was his idea or request to do so. HR told MR, when he went to the RCMP, to lie about who drove to the party and understood that MR was prepared to do so. This, in my view, is a telling indictment of HR.

Not only would he lie to the police in the course of their criminal investigation, which he caused to commence with his complaint, but would tell a friend to do likewise. [123] As well, HR's understanding casts a very poor light on MR as a witness, too. MR denied HR had told him to lie to the police. There is no evidence before the court that MR told the police that one B was driving. [124] HR told the police that the accused after the fight tried to hit him outside the residence with his car and entered, or tried to enter his car.

He did not offer these facts in his direct evidence at trial, but said they were true. These are, in my view, not mere details. If true, they might tend to show that the accused was not merely trying to evict him as an unwanted guest from the party, but may merely have wanted to harm him. If true, this could well have jeopardized the accused's ability to rely on s. 41 of the Criminal Code , ( see R. v.

McKay , Manitoba Court of Appeal, paragraph 11 above). [125] I have above referred to an admission on cross-examination by HR that his trial evidence was really what someone else had told him, although given in direct without a correct attribution. By this I mean a witness says "I do not know what occurred, but my friend 'X' told me this event did, and I believe my friend." This type of evidence gives rise to several concerns relevant to credibility: Firstly, a given witness testified as if he saw some fact or participated in some event, when he did not. This is an untruth.

Secondly, when he does not attribute the fact or event to another, this is also an untruth. Thirdly, to so testify implicitly means the witness has talked to others and may have discussed what occurred, and the court is unable to assess as he goes along, what he saw or knows as against what others may have told him. [126] HR's evidence that he thought he was invited by a friend of JB's is nonsense and lacks any reasonable foundation.

It is at best an excuse for being an interloper and trespasser. [127] HR's evidence as to what J told him seemed to be inconsistent as to whether he was told or believed some guy was coming or KB was coming. A few times HR seemed to embellish or add to evidence he had earlier given in direct in his cross-examination -- for example, what he said to JB after the fight outside the house and what he said to J as to how he intended to respond to someone coming over to kick him out, or I assume his friends. I refer to the peacemaker comment, to use, I think, Mr.

Dunne's turn of phrase in argument and in cross-examination. [128] HR gave in evidence things not in his police statements and there were things therein he did not state in his direct evidence. For example, the car event outside the residence, discussed above. This is but one example. [129] It would appear HR discussed the events of the party afterwards with some of his friends. How many is unclear. MR and he discussed how HR got to the party the next day. HR's friends told him in the middle of the fight KB was talking to O.

HR was very angry after the fight and hurled a verbal comment at JB outside of her home, to the effect "Fuck white people." Had the reference been less all encompassing, it might have been understandable. I will not in these reasons suggest a more limited content. This type of remark leaves a concern that HR even subconsciously might be motivated by reasons of prejudice to embellish his evidence, get back at someone who he felt wronged him.

I do not say he was so motivated but he might have been. [130] Lastly, I confess I had some modest trouble with the description of the melee given by HR, seemingly a two-part event with a break in between wherein KB had some communication with O, as I recall, before turning on him a second time. All witnesses seem to suggest this fight happened very quickly, even HR estimated it to have lasted 30 seconds. HR's above evidence doesn't make a lot of sense to me.

This factor, however, weighs very minimally in my overall assessment of his credibility. [131] This list of factors is not intended to be an exhaustive list of all the factors I have taken collectively into account in finding HR is generally not a credible witness. [132] The two points or parts of HR's testimony that I do accept to be truthful are firstly his denial that he ever threatened to burn the B house down, and secondly his mind-set, if I can put it that way, as evidenced by his comment to J that he was not going to permit the guy who was coming over, or KB, to throw him or them out when he got there. [133] I turn now to JB.

She cannot be seen as an independent unbiased witness. She said she was close to and had a good relationship with her brother, KB. He looked out for her. She did not want him to have a conviction arising from this trial or event. It is frankly not at all surprising that a sister would say this about a brother. One would hope every sister would say this about every brother. That said, it can be seen as a potential motive to give inaccurate evidence in court, including by testifying untruthfully to a lack of recollection of events that did occur and which the witness saw.

[134] I accept she looked nervous at her party in the presence of the accused and did not want this group of four to be there. [135] I cannot overlook a subtheme in this case, that her dad was an RCMP officer, that the party was not a sanctioned event, as far as he was concerned, and for this reason, neither she nor, I suspect, her brother wanted to call the police to evict HR and company during the later consequences when her dad found out. She testified that she didn't want to get into trouble.

No doubt the trouble foreseen had several components, one being the disappointment of her father, and another being his colleagues attending to discover underage drinking being potentially rampant in a fellow colleague's home.

This unhappy event in her life will clearly have a much better outcome for JB if adding insult to injury can be avoided and her brother is acquitted. [136] I do not accept as truthful or accurate her testimony that HR responded on the second occasion she asked him (and, I find, indirectly his three friends) to leave, that he responded "Fuck you, I'll burn the house down." If JB believed this was his response, I find she is mistaken. Had HR said this, this would have been, in my view, a very significant threat, not something to be taken lightly, even by a nervous 16-year-old who had been drinking.

It is the type of comment I think she would certainly have told her brother KB about on the telephone to impress upon him the urgency of the situation. As well, if made, I think as well it is the type of comment that might well have motivated JB to call 9-1-1. She did neither. [137] I also note that the above alleged comment was not squarely put to HR in the context of JB's testimony in cross-examination. It was however dealt with HR in direct. Mr.

Dunne made it quite clear at trial that nothing HR said in his evidence was from the standpoint of defence credible testimony. [138] Her evidence as to what occurred in the likely less than a minute before her brother first hit HR is not corroborated. There is of course no requirement that it be so to be accepted. But it does stand alone. Her brother's exchange with HR, as she recalled it, was not squarely put to HR, in my view, in cross-examination. This was not a mere detail but contained the refusal of the complainant that Mr.

Dunne argued strenuously amounted to the resistance in s. 41(2) which he relied upon. [139] JB's evidence as to HR's physical reaction to her brother's demanding he leave her party changed between her direct and cross- examination. In direct she said HR gestured by sticking his chest out at KB, and on cross-examination she added that he also (1) smirked, and (2) had shown his teeth. In my view, these were not mere details. I do not believe HR was confronted in cross-examination with these two further alleged details, that he had both smirked and shown his teeth at KB.

I do not accept that this evidence given by JB is accurate. No one else saw it or spoke of it. [140] I do, however, accept that at the time KB met HR in the hall of his dad's home, HR's mind-set, referred to earlier, was that he shouldn't have to go and likely communicated this to KB, including by saying, "No," when he was asked to leave.

I find that this refusal only served to reinforce the then trespassing status of HR and his three friends from the B’s viewpoint. [141] In addition, JB's reflection of events after Kb first hit HR seemed to deteriorate in a material way as compared to a recall of the events prior to this blow being struck. I am not persuaded she was more upset at the time after the first blow than before. Her memory of events frankly strikes me as being somewhat selective.

Her evidence as to how the fight occurred is inconsistent with that given by MR. [142] When I stand back, as judges do, and consider all her evidence as to how this fight is said to have started, it frankly does not make sense to me. I can accept that HR and his friends were uninvited and unwanted, and that she was nervous about them. But they, according to her, were not really causing problems, save with respect to some rather vague and ambiguous event relating to TJ or her brother, which was said to be such so as to make TJ cry.

The urgency of the situation was not such that she felt she could not wait the 20 to 40 minutes it took for her brother KB to arrive after she had asked HR to leave. Most importantly, I am hard pressed to imagine HR being as aggressive with KB thrusting out his chest, smirking and showing his teeth as JB said he was, KB being much bigger and taller.

This as well makes little sense seen in this context. [143] There is no evidence HR was angry over anything at the time the fight commenced, or had been drinking alcohol to such an extent that one might reasonably conclude his rational processes were impaired, or that he had become aggressive with the effects of alcohol. As well, JB admitted to drinking some alcohol herself. There is no other evidence that he likely didn't want to go when asked, regardless of what JB says she observed. [144] In the result, I do not find JB to be a wholly credible witness. This does not mean I found her to be untruthful.

Witnesses, following a judge's review of their evidence at a trial, can be found not to be credible if, for example, he or she adjudges them to be mistaken in what they thought they saw or heard. [145] I will deal with S very briefly. He is not a very important witness, in my view. He says he did not see a fight that occurred a few feet from where he sat with his intoxicated girlfriend. I do accept that he intended to go home with HR and did drive him to the RCMP detachment after the altercation. [146] I turn finally to MR. He said HR was a good friend of his.

MR cannot, as well, be seen as a fully independent and unbiased witness, either. He talked to HR the next day and HR then told him he drove to the party. [147] It is unclear precisely when HR attempted to convince MR to lie to the police, a proposition which MR denied, and whether it was the next day or not. It is not reasonable, in my view, to assume this is all they talked about, namely (1) how did HR get to the B party, and (2) possibly if the police asked to tell them B drove me there.

I do not believe HR's testimony that this was all that was discussed, namely, who drove him to the B party. [148] The risks outlined above are therefore present with this witness, and I of course allude to the difficulties that a trial judge faces when he or she hears evidence that may really be what someone has told them, and not what they themselves observed. [149] However, MR was not drinking at the party, as he had driven there in his own car, and this evidence is unchallenged. He was reasonably close to the initial exchange between KB and his sister, but said he couldn't hear what they said.

This is truthful testimony in

my view. Why would he really be listening? There is no evidence he knew who KB was on arrival, or that anything occurred to draw his attention to either KB's interaction with his sister or in fact KB's interaction with HR seconds later. [150] I accept that the house was packed with people with music playing and lots of noise. MR was apparently returning to the main floor from an upper floor washroom. MR said he heard no communications between KB and HR when KB approached him. However, on cross-examination when pressed on this point by Mr.

Dunne, and it was suggested to him that KB had said to HR words to the effect "You have to leave now," and HR had said "No," MR said he did not recall this occurring. Nor did he recall HR later saying "Fuck whites," or words to this effect. [151] MR gave no evidence that as to whether he heard JB twice ask HR to leave. It is not suggested he was an uninvited guest. He said HR was not in his understanding invited, and did not know he was coming. He did not recall hearing KB tell HR to go and HR refusing. This neither supports or refutes that this event occurred.

He gave no evidence as to whether or not HR had first stuck his chest out at KB or smirked or showed his teeth. He did, however, say HR made no gestures to KB. It may be that his vantage point on the stairs was such he could not have seen this if it did in fact occur.

His evidence on point is neutral in effect on this event, in my view. [152] MR's evidence as to how the fight occurred is somewhat different from that of HR, who seemed to suggest, as I have said in his direct evidence, that subject to a brief hiatus, when KB communicated with O, the only combatants were KB administering blows and him trying to block them, and defend himself. He didn't see anyone stop KB, but later someone said they took KB down.

MR's story as to what occurred is that KB both punched and kicked HR and he intervened, as did O telling KB to stop, and then they started to fight, and he tried to intervene. He described events that JB did not really recall, save in a very general way. [153] On balance, having carefully reviewed MR's evidence, I find him to be a credible witness. In my view he was not really shaken on cross-examination. He was not really challenged thereon as to his testimony as to how the fight had started and proceeded. He was not only close to it, but became involved in it.

He had not been drinking. [154] I reject the submission that he should be seen as a handpicked witness. I see nothing in Constable Choi's testimony that would suggest MR intentionally or otherwise misled the police in any way, or that he lied to them including with respect to B's make believe role in this event. Any discrepancies between his direct evidence and the content of his police statement given to Constable Choi on October 24th, 2009, in my view, are not material.

I accept he was being truthful when he said that he was being honest in telling me what he saw and was not saying things favourable to the accused. Findings of Fact [155] I find that Crown has established the following facts or that same are otherwise proven in the evidence beyond a reasonable doubt: 1. HR and his three friends, O, H and S were all uninvited guests at JB's party. 2. The moment they stepped into this property, they became trespassers. 3.

JB is a resident of the home and host of a private party for invited or authorized guests, was in peaceful possession of this real property, and at no time did she do or say anything to change the above status of these four individuals, including the complainant, HR, from that of a trespasser. 4. When KB came over, he at all times was acting under her authority. 5.

JB was nervous around HR, and had learned before her brother was summoned that something in HR's group of four, numbering him, S, H and O, had done something to upset her friend, TJ, who was present as an invited guest with her brother with JB's consent. 6. JB in the result asked HR and indirectly, as above, his three friends to leave twice, the second request being made some ten minutes after the first. Both times he refused. She then telephoned her brother. 7. HR learned from one J that KB or some guy was coming to the party to kick them out. He told J in essence he would not let this happen. 8.

KB arrived and spoke to JB, his sister. 9. KB did not know HR or his three friends or MR. So JB indicated to him who she had asked to leave and who had refused to do so. 10. KB asked HR to leave twice when in the hallway of his dad's home when HR was standing some five to six feet from the fr

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