R. v. Jeffrey Kolebaba Date:, 2011 BCPC 1

Citation: R. v. Jeffrey Kolebaba Date: 20110104 2011 BCPC 0001 File No: 85056-K1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEFFREY KOLEBABA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: A. Pendray Counsel for the Accused: P. Riddell Place of Hearing: Port Coquitlam , B.C. Date of Hearing: December 2, 2010 Date of Judgment: January 4, 2011 INTRODUCTION [ 1 ] Jeffrey Kolebaba (“Mr. Kolebaba”), and his wife Nicole (“Ms. Kolebaba”), have been a couple for 13 years and married for about nine. Mr.

Kolebaba (to whom I shall also sometimes refer as the “Accused”) has a construction business; Ms. Kolebaba is a stay- at-home mom. They have three children, aged nine, six and two. [ 2 ] Their marriage has been in difficulty for a number of years and on July 5, 2010, their conflict came to a head of sorts. An incident occurred between Mr. Kolebaba and Ms. Kolebaba in the early evening on that day that gave rise to a charge of assault in which he is the Accused and she is the complainant. The charge is set out in Information 85056-K1, sworn on July 16, 2010. [ 3 ] Ms.

Kolebaba weighs approximately 135 lbs and is a person of slim build. Mr. Kolebaba does not cut a large and imposing figure but he is visibly larger in stature and strength than his wife. [ 4 ] Ms. Kolebaba was the key Crown witness. The only other witness to testify for the prosecution was a police officer—Cst. Barbour—who was dispatched to the Kolebaba house to answer a domestic dispute 911 call on the evening in question. [ 5 ] Mr. Kolebaba testified in his own defence. He called no other witnesses.

[ 6 ] While there are some commonalities to be discerned in the accounts of the incident of July 5, 2010, given by Mr. Kolebaba and Ms. Kolebaba, those accounts are widely divergent with regard to almost all of the facts that are material to the allegation of assault. Accordingly, one of the issues raised by this prosecution is credibility. The other is whether the maxim de minimis non curat lex — which, roughly translated from the Latin means “the law takes no notice of trivialities”—is engaged by the facts of this case. THE FACTS Ms. Kolebaba’s Version of Events [ 7 ] Ms.

Kolebaba’s sworn testimony was that conflict erupted between herself and the Accused at dinner time on July 5 th when he expressed a wish to serve a home-cooked dinner to the family (which he had partially prepared) and she indicated that she preferred to place an order for take-out food. Her testimony was that, faced with her wishes to order take-out, Mr. Kolebaba spoke harshly to her and accused her of being a “useless mother and homemaker”. After that, she asked him to leave the room and he obliged by leaving the home for three hours or so. [ 8 ] On her account of events, Ms.

Kolebaba fed the children what their father had prepared to that point and when their 8:00 p.m. bedtime came, she put them to bed and retired to the living room sofa with a glass of wine. There she used her new cellular phone to call her friend Dawn. She went on to testify that while she was on the telephone she saw Mr. Kolebaba’s truck pull back into the driveway and heard the house’s security alarm system “beep” in the way it does when a door is opened but the system is not armed. Ms.

Kolebaba’s evidence was that the next thing she heard was the voice of her eldest daughter calling down to her from upstairs to say “Mommy, you suck!”. [ 9 ] Ms. Kolebaba’s account continues with her running upstairs to the eldest daughter’s bedroom to investigate that strange and out- of-character utterance. There she said she found their daughter in a state of upset with her father sitting beside her on the child’s bed. She questioned her daughter about her “bad manners” and was told in reply that Mr. Kolebaba had “told [her] to say it”. With that, as the account goes, Mr.

Kolebaba got up and left the child’s bedroom and went downstairs. Ms. Kolebaba stayed behind to offer comfort to the child. Upon leaving the bedroom herself, Ms. Kolebaba says she was greeted with words, yelled from the bottom of the stairs by Mr. Kolebaba, along the lines of “You are a useless fucking bitch”. As Ms. Kolebaba reached the main floor of the house he is said to have followed that imprecation up with a second, immoderate comment, namely, “I fucking hate you”. [ 10 ] Ms. Kolebaba’s evidence was that she then returned to the living room and resumed her seat on the sofa.

She testified that upon picking up her cell phone she found that Dawn had stayed on the line and not hung up and so—after apologising to Dawn for leaving her hanging—they resumed their conversation. A short while later Mr. Kolebaba is said to have entered the living room from the dining room. Ms. Kolebaba testified that, although she told him to leave her alone, he kept approaching. As he got nearer, she stood up at which point (she says) he grabbed the cell phone roughly from her hand. She responded by telling him that it was new and that he should not “wreck it”.

She testified that she tried unsuccessfully to get Mr. Kolebaba to calm down. When she pressed to get the cell phone back, Mr. Kolebaba’s response—on her account—was to punch the top of one of her hands. At that point, she said, he grabbed both of her hands and squeezed them hard and twisted them while she, for her part, continued to demand the return of her cell phone. [ 11 ] Ms. Kolebaba’s evidence was that somehow she wrested her hands free from Mr. Kolebaba’s grip and that they then moved, together, into the dining room where Mr.

Kolebaba grabbed her wrists and held her arms up to her chest in a crossed position. With her so immobilised, he first pressed his teeth against her cheek with his mouth open “really wide”, as if to bite, and then (she said) he spat in her face and released his grip on her wrists. While this last-described interaction was underway they were in motion and ended up in the kitchen. [ 12 ] Once in the kitchen, on Ms. Kolebaba’s evidence, Mr. Kolebaba assailed her with accusations—of discussing their private business with others on the telephone and of having an affair.

She denied the accusations, she said, and continued to make demands for the return of her cell phone. Giving up on the idea of getting her cell phone back, she turned and was about to leave the kitchen when, on her version of events, Mr. Kolebaba grabbed the back of her jeans and underwear with one hand and lifted her a short distance up off the floor. Ms. Kolebaba testified that he then grabbed onto the front of her jeans with his other hand and lifted her “a few feet” up off the floor and then, from there, he repositioned one of his hands to grab hold of her shirt.

Her evidence was that he then held her at that height with her body in a horizontal position. As he did this, she said, she tried to reach for the edge of the kitchen counter but caught hold of his pants instead and ripped the pocket of them. Then she could feel the fabric of her shirt beginning to rip. At this point she fell to the floor. [ 13 ] Ms. Kolebaba testified that she quickly got back on her feet after falling to the floor, at which point Mr. Kolebaba grabbed again at her shirt and ripped it.

This caused her to back away and call out “Don’t!” and “Stop!” With that, she got hold of a phone (it is not clear which one) and began to leave the kitchen. She then said she saw her eldest daughter standing outside the kitchen doorway, near the stairs leading up to the bedroom floor, in a state of great upset. Ms. Kolebaba’s evidence was that she told Mr. Kolebaba that she would call the police, that he urged her not to, and that she and her daughter retreated upstairs to the bedroom level where she placed a 911 call on a land line. Ms.

Kolebaba’s testimony was that, at that point, the Accused left the home once again, in keeping with a general practice she acknowledged he had of leaving for an hour or two for cooling-off purposes when conflict between them would begin to escalate. [ 14 ] When asked by Crown counsel whether she had sustained any injuries as a result of the incident, Ms. Kolebaba reported that she noticed that evening that her fingers were red from the squeezing and twisting. She further testified that when discussing the incident with Cst.

Barbour of the Ridge-Meadows Detachment of the RCMP (who attended in response to her 911 call and took photos of her hands) she noticed that her right ring finger was deflected to the right at the knuckle immediately below the nail. Ms. Kolebaba’s evidence was that, given she was home alone with the children, she chose not seek medical attention until the next day. She further volunteered that, at Cst. Barbour’s suggestion, she taped her right ring finger to her middle finger to stabilise it.

When it was examined the next day, she was diagnosed by an emergency room physician (who was not called to testify) with a “compression torque fracture with bone shards” in her right ring finger. She told the court that she was treated with a cast and told to see her doctor in a week. However, a week later, with the dressing removed it was evident that the deflection remained and so X-rays were taken. Ms. Kolebaba

reported, via hearsay, that the conclusion of her medical advisors, after further consultation, was that the break was too close to the joint to permit the finger to be re-broken and re-set and so the deflection has not been corrected. Mr. Kolebaba’s Version of Events [ 15 ] As I have noted, in his sworn testimony Mr. Kolebaba describes a very different interaction with Ms. Kolebaba than the one she described in her sworn testimony. [ 16 ] On his account, Mr.

Kolebaba got home from work early on July 5, 2010—that is, at about 3:45 p.m. or 4:00 p.m.—and, after showering and puttering about the house a little, he began to plan a barbeque dinner for the family. When Ms. Kolebaba came home with the children at about 6:00 p.m. he made that plan known to her and she replied that she wished to order some take-out food. This disagreement quickly degenerated into an argument and so, he said—in order to avoid it escalating and becoming a “scene” in the presence of the children—Mr. Kolebaba left and drove to some recreational property they own nearby to do a few chores.

He said that no more than 10 minutes passed between the arrival of Ms. Kolebaba and the children at the house at dinner time and Mr. Kolebaba’s departure for the recreational property. [ 17 ] Knowing that the children’s bedtime is normally at about 8:00 p.m. or so, Mr. Kolebaba said he waited until after 9:00 p.m. to return to the house. He testified that he entered through the front door and found Ms. Kolebaba sitting on a chair near the window in the living room. She was engaged in conversation with someone on her cell phone and having some wine.

One bottle was on the table next to her and a second was standing on the carpet near the table. [ 18 ] Mr. Kolebaba’s evidence was that he approached Ms. Kolebaba and said words to the effect of, “We need to talk”. He said that she ignored that and continued speaking on her cell phone. Believing, he said, that the mounting conflict between them needed to be addressed, he renewed his efforts to get them “to talk” but without success. He testified that he then grabbed the cell phone out of Ms.

Kolebaba’s hands, noting that he was able to do so quickly and before she could react or put up a struggle to retain hold of it. [ 19 ] Mr. Kolebaba testified that he began to walk in the direction of the dining room with the cell phone, with Ms. Kolebaba following and demanding its return and reaching periodically in an effort to recover possession of it. [ 20 ] As they moved onward and into the kitchen, according to Mr. Kolebaba, Ms. Kolebaba began yelling at him, demanding that he give her the cell phone back and flailing at him with her arms.

His evidence was that he raised his forearms in a defensive posture to deflect the blows that she was attempting to land with her arms and hands upon him. Mr. Kolebaba admitted that as Ms. Kolebaba kept up her flailing his own anger level was rising and, knowing that it would probably irritate her, he began chanting “wax on, wax off” in the way that, apparently, a character does in a film called The Karate Kid . [ 21 ] Mr. Kolebaba testified that, despite his self-protective manoeuvring with his forearms, Ms. Kolebaba succeeded in landing several blows on his body with her hands and fingernails.

One of those blows caused a minor scratch to his neck and at one point, while in a downward motion, her hand caught hold of his tee-shirt and ripped it. This, he said, got him even more upset. He retaliated by grabbing hold of her tank top and pulling down on it with enough force to rip it, saying as he did so, “There you go—how do you like that?” [ 22 ] That exchange, on Mr. Kolebaba’s evidence, was followed by more yelling—some of it his—and more flailing on Ms. Kolebaba’s part.

He responded to the resumption of her flailing by gripping her arms and immobilising them at her sides and turning her body away from him and toward the kitchen island. With that, he said, he put the cell phone on the kitchen island for her to take and said words to the effect of, “Here—this is stupid.” [ 23 ] At this point, according to Mr. Kolebaba’s account, both of them could hear their eldest daughter crying. They moved together out of the kitchen and saw the child standing at the top of the stairs leading from the main floor up to the bedroom floor. Both he and Ms.

Kolebaba, on his account, said brief, comforting words to the child about the fuss being over. Mr. Kolebaba recalls Ms. Kolebaba announcing that she was going to telephone the police at about the same time as he himself announced that he was going to go back to the recreational property for a second cooling-off period. [ 24 ] When Mr. Kolebaba was questioned in chief about the account of the incident that occurred between them given by Ms. Kolebaba during her testimony, he denied that her account was true or accurate.

He specifically denied that anything in the nature of the “Mommy, you suck!” incident described by Ms. Kolebaba ever occurred. He also denied ever: (

a) punching Ms. Kolebaba’s hands; (

b) squeezing and twisting her fingers; (

c) holding her arms while pressing his teeth against her face, as if to bite, and then spitting in her face; (

d) lifting her by her jeans and underwear off the floor; or (

e) holding her up off the floor in a horizontal position by her jeans and her shirt from which position she then fell. CREDIBILITY ASSESSMENT [ 25 ] Both Ms. Kolebaba and Mr. Kolebaba were subjected to mannerly, but pressing, cross-examinations. [ 26 ] I will first say that Mr. Kolebaba’s version of the events in question was not shaken during the course of his cross-examination; neither was his evidence undercut by other independent and trustworthy evidence with which it could be shown to be inconsistent. I will say as well that Mr.

Kolebaba’s account of events, overall, had about it an air of reality and the ring of truth. There was nothing about his account that seemed fanciful, contrived, outside the realm of common experience or transparently self-serving.

[27] Importantly, Mr. Kolebaba did not seize every opportunity to portray Ms. Kolebaba in the worst possible light. Neither did heengage in obvious exaggeration in a misguided effort to serve his own interests in this case. Thus, when asked to describe his owndemeanour during the subject interaction, for example, he did not shrink from admitting that he was angry, that he said and did somethings to taunt and irritate Ms. Kolebaba, and that his anger with her escalated as the interaction progressed.

It may seem a small pointbut, similarly, when describing a second wine bottle that was positioned on the floor near to Ms. Kolebaba when he returned to the houseand found her drinking wine in the living room, Mr. Kolebaba did not seek to advance his own interests in the case by saying that thatbottle was lying on its side near to where she was sitting. Rather, when asked, he forthrightly acknowledged that the wine bottle wasstanding up. [28] Mr. Kolebaba’s story did not change when it was probed during cross-examination. [29] All of these factors gave me confidence that, when he testified, Mr.

Kolebaba strove to tell the whole, unvarnished truth—even inareas where the truth was not congenial to his own interests. [30] I came away from hearing Ms. Kolebaba’s testimony with a very different impression. Her testimony did not emerge unshakenfrom cross-examination. Some of what she said appeared to defy the laws of nature; in certain respects it did not accord with what, basedupon ordinary human experience, one would expect to occur in the situations she described. Ms.

Kolebaba was at pains to portrayherself in an unfailingly positive and sympathetic light, and to paint, by contrast, a very menacing and contemptible word portrait of herhusband. [31] I pause to make the general observation that in this case, as in all cases, there are varying shades of grey but few stark whites andblacks. When witnesses, like Ms. Kolebaba, seek to convey a picture of fallible human actors in conflict that is rendered wholly in starkwhites and blacks, their accounts are generally suspect. [32] Recall that Ms. Kolebaba acknowledged during her testimony that it was Mr.

Kolebaba’s general pattern to leave the house whenconflicts began to escalate in order that everyone might have an opportunity to cool down and in order that the children might beprotected from exposure to those conflicts. I find it difficult to reconcile that admission with her testimony that suggested that Mr.Kolebaba: (

a) actively recruited their eldest daughter to say hurtful things to her mother as his ally in their conflict of July 5, 2010; and (

b) shouted obscenities up the stairs at Ms. Kolebaba as she was emerging from their eldest daughter’s bedroom after comforting her. [33] Ms. Kolebaba was prone to exaggeration when she gave her sworn testimony. For example, while I would not say that theexhibited photographs show no markings on her hands, I found it difficult to see in the photograph taken by Cst. Barbour on the night ofthe incident the marked deflection of her right ring finger at the knuckle just below the nail that she described so vividly in herexamination-in-chief.

Since no medical evidence was called by the Crown in this prosecution to support Ms. Kolebaba’s testimony, Ihave no opinion from an independent expert to consider that might speak knowledgeably about the existence and/or the extent of thatinjury. During her evidence-in-chief, Ms. Kolebaba volunteered that Cst. Barbour recommended that she stabilise her injured ring fingerby taping it tightly to her middle finger until she could be seen by a physician the next day. That might have stood as some corroborationof the existence and seriousness of the injury to the finger; however, Cst.

Barbour denied having ever given that advice or suggestion toMs. Kolebaba. [34] Ms. Kolebaba’s testimony at trial was sometimes inconsistent with the statement she gave to police on the evening of July 5,2010, when the conflict at issue in this case erupted. I will give only a couple of examples. There were several. [35] Ms. Kolebaba provided detailed evidence at trial about being on the telephone with her friend Dawn when Mr. Kolebabareturned and, allegedly, recruited their eldest daughter to call “Mommy, you suck!” down the stairs.

She said that she put down thephone, went upstairs to deal with her daughter and her husband, and later came back down to find Dawn still waiting on the line toresume their conversation. Ms. Kolebaba even went so far as to say that she apologised to Dawn for leaving her hanging during theinterruption. Yet in her statement to police, she said that after the “Mommy, you suck!” incident, she made a fresh call to her friend. [36] Ms. Kolebaba gave considerable prominence in her evidence-in-chief to her assertion that Mr.

Kolebaba punched her hand aftertaking the cell phone away from her at the beginning of the phase of events that occurred when Mr. Kolebaba returned to the houseshortly after 9:00 p.m. Yet, she made no mention of that assaultive behaviour in her police statement despite knowing (andacknowledging) that she appreciated that Cst. Barbour’s purpose in taking her statement was to capture from her as complete andaccurate an account as possible of what had happened that night. Even making allowances, as I have, for the fact that Ms.

Kolebaba wasupset and distraught on the evening in question, I find it peculiar that she would omit such an important detail from her narrative wheninterviewed by police. [37] When confronted with these and other inconsistencies, Ms. Kolebaba resisted admitting that her recollection on the night of theincident was likely a more reliable and accurate one than her recollection some five months later at trial. Her evidence in this regard didnot enhance her credibility. [38] Mr. Kolebaba’s counsel cites the venerable authority of Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354(B.C.C.A.) in support of his contention that Ms. Kolebaba’s version of events doesn’t hang together or make sense. In that case,O'Halloran J.A. said this at p. 357: "[T]he real test of the truth of the story of a witness ... must be its harmony with the preponderance of the probabilities which a practicaland informed person would readily recognize as reasonable." [39] Although it is a civil case, Faryna has been considered a useful authority in criminal cases in this province, bearing in mind thatthe standard of proof in criminal cases is higher: see H.M.T.Q. v.

R.J.E., [1999] B.C.J. No. 322 (S.C.) at paras. 34-35, per Romilly J.

[40] I agree with counsel that there are aspects of Ms. Kolebaba’s account that strain credulity as not being in “harmony with thepreponderance of the probabilities which a practical and informed person would readily recognise as reasonable”. Ms. Kolebaba did notimpugn Mr. Kolebaba’s overall fitness as a caring parent for their three children. Indeed, she agreed that it was his usual pattern toattempt to shelter the children from their conflicts by leaving the home and letting things cool down when tempers flared between himand Ms. Kolebaba. Against that background it seems improbable that Mr.

Kolebaba would actively draw their eldest daughter into hisconflict with her mother in the primitive and mindless way Ms. Kolebaba says he did, and it seems even more improbable that the manwho was on his way out the door to give everyone (including himself) a chance to cool down would shout profanities up the stairs at hiswife within their daughter’s earshot before departing. [41] There is also something in counsel’s submission that the description Ms. Kolebaba gave of how she was manipulated physicallyby Mr. Kolebaba in the kitchen seems to defy gravity and common sense.

I have a great deal of trouble accepting that Mr. Kolebaba—aman of a somewhat slight build—was able to pick his wife up by the pants and underwear in one hand and by the shoulder of her tanktop in the other and suspend her in the air, “several feet” off the floor for a period of time while she struggled to get free. That is amanoeuvre that I believe even a person of much larger stature than Mr. Kolebaba would have difficulty performing. [42] After taking all of these factors into account, I find that I am unable to accept as being either credible or accurate Ms.

Kolebaba’saccount of the incident that occurred on July 5, 2010. I therefore reject that account and accept as both truthful and accurate in all itsessentials the account of the incident given by Mr. Kolebaba. DO THE FACTS AS FOUND SUPPORT A CONVICTION FOR ASSAULT? Specific Instances of Questionable Conduct [43] I have found, as a fact, that virtually all of the assaultive behaviour that Ms. Kolebaba contends Mr. Kolebaba displayed on thenight of July 5, 2010, did not occur.

I have rejected as not credible her version of events, including the parts of it in which she contendedthat he punched her hands, held her with her arms crossed in front of her chest and made to bite her, spat in her face and picked her upand then let her fall from a considerable height to the kitchen floor. Each of those actions would, otherwise, have constituted prima facieproof of assault but because I cannot accept as either credible or accurate Ms. Kolebaba’s contention that Mr. Kolebaba did what she saidhe did, that is the end of the inquiry with regard to those actions: R. v.

Proudlock (1978), (SCC), 5 C.R. (3d) 21(S.C.C.). [44] However, that is not the end of the inquiry for all purposes. [45] Mr. Kolebaba, by his own admission, intentionally applied force to Ms. Kolebaba’s person without her consent when, in thekitchen, he took hold of her arms and immobilised them at her sides briefly. His actions in this regard constitute prima facie proof ofassault. Nevertheless, when seen in context, I am satisfied that they do not amount to assault. On the version of events that I haveaccepted, at the time he immobilised Ms. Kolebaba’s arms Mr. Kolebaba was under attack himself.

She was flailing at him with her fistsand arms and had already landed several blows. To the extent that there was any non-consensual contact between Mr. Kolebaba and Ms.Kolebaba at that point in the narrative, I accept Mr. Kolebaba’s explanation for it, the burden of which was that, in the course of aheated exchange, he responded reflexively and with the minimum force necessary to defend himself against the threat posed by Ms.Kolebaba continuing to advance upon him with her arms flailing. [46] There is one further point in the narrative, on Mr.

Kolebaba’s own account of events, when he intentionally applied force to Ms.Kolebaba without her consent. That occurred when, after she struck out with her arms flailing at him and scratched him lightly on theneck and tore his tee-shirt, he retaliated by grabbing hold of her tank top and pulling down on it with sufficient force to cause it to tear. Itwill be recalled that, while giving his testimony, Mr. Kolebaba made the further admission that as he performed that act he said, “Thereyou go—how do you like that?” [47] Despite counsel’s able arguments to the contrary, I cannot see that Mr.

Kolebaba’s actions, just described, can be viewed as beinganything other than assault. He acted intentionally in applying force to Ms. Kolebaba without her consent. [48] The interaction having its origins, just minutes earlier, in Mr. Kolebaba having taken Ms. Kolebaba’s cell phone away from herwhile she was using it and refusing to give it back, it is not open to Mr. Kolebaba to characterise any part of the ensuing struggle as beingconsensual in the sense acknowledged in the cases involving consensual fights. Mr.

Kolebaba and his wife did not literally orfiguratively agree to square off against one another to settle their differences in a physical way. Rather, he—wanting to get her attentionaway from her phone call and focused on the discussion he felt they urgently needed to have—took her cell phone from her and then keptit away from her. As she pressed to get it back her efforts became increasingly physical and combative and, by his own admission, Mr.Kolebaba fanned the flames of her upset with taunts and jibes. In no way can this scenario be viewed as one in which Ms.

Kolebaba wasa participant in a consensual physical battle when it came to the tearing of her tank top. Is the De Minimis Principle Engaged? [49] There being all of the essential elements of an assault present on the facts I have found, and there being none of the conventionaldefences available to relieve Mr.

Kolebaba of liability for it, the only other argument that remains to be considered is that which invokesthe maxim de minimis non curat lex—that is, “the law takes no notice of trivialities”. [50] For the purposes of the present analysis it is important to remember, as a threshold point, that the slightest intentional touching ofanother without that other’s consent can constitute an assault at law. An assault may be committed even in circumstances where theaccused exerts no degree of strength or power when touching the victim and where the perpetrator acts without violence or even animus:see R. v.

Burden (1981), (BC CA), 64 C.C.C. (2d) 68 (B.C.C.A.) and R. v. A.Z., (ON CA), [2000]O.J. No. 4080 (C.A.) (QL). [51] That said, there are circumstances where intentional contact that occurs between perpetrator and victim is so trifling andinsignificant, when seen in context, that it will not attract criminal liability.

[52] A number of the cases cited to me by counsel involve incidental contact that occurs in the course of an effort on the part of theperpetrator to get past the victim in circumstances where tensions exist between them: see R. v. Lepage, [1989] S.J. No. 579 (Q.B.) (QL),R. v. Dejong, [2005] B.C.J. No. 2546 (Prov. Ct.) (QL) and R. v. J.K.H., 2008 BCPC 13 , [2008] B.C.J. No. 162 (Prov. Ct.)(QL).

In other cases, while the non-consensual physical contact may not have been incidental and secondary, its nature is otherwise sotrifling and insignificant overall that the court may properly overlook it as an “irregularit[y] ... which would weigh little or nothing on thepublic interest”: R. v. McLeod, 2006 ABPC 114 (at para. 81). [53] In my respectful view, this notion of the conduct, seen in context, being insufficient to engage a public interest in conviction isthe lynch-pin in the logic of all of the cases that consider the application of the de minimis maxim to facts that otherwise constituteassault. [54] Mr.

Kolebaba’s admitted act of pulling down on Ms. Kolebaba’s tank top hard enough to rip it was a self-confessed act ofretaliation for her ripping of his tee-shirt, as witness his contemporaneous utterance of the words, “There you go—how do you likethat?”. Can that intentional and retaliatory act be fairly described as being so trifling and unimportant as to be an “irregularit[y] ... whichwould weigh little or nothing on the public interest”?

I do not believe that it can. [55] I stated in J.K.H.—a case in which, at para. 29, I gave consideration to the reasoning of the Ontario Court of Appeal in R. v.Carson, [2004] O.J. No. 1530 (C.A.) (QL) and other similar authorities without (regrettably) naming the decisions—that it is my viewthat there is no absolute bar in British Columbia to the invocation of the maxim de minimis non curat lex in circumstances of spousalassault. My view on this issue is not universally held—see, contra, R. v. A.S.B., 2006 BCPC 598 and R. v.

Symington, 2008 BCPC362—but, with respect, I find added sustenance for it in the reasoning and conclusions of Baird Ellan, P.C.J. in R. v. M.M.S., [2009]B.C.J. No. 1848 (Prov. Ct.) (QL). Judge Baird Ellan is the last judge of this court to be heard on the issue.

Of course, until a highercourt rules definitively on the matter, a residue of uncertainty will remain. [56] What does seem beyond doubt is that if there is any threshold of legal tolerance at all in British Columbia for the intentionalapplication of force without consent within spousal relationships, that threshold “will remain, and always should remain, a very lowthreshold indeed ...” (J.K.H. at para. 29). I approach the case at bar from that perspective. [57] While Mr.

Kolebaba’s retaliatory grabbing and tearing of his wife’s tank top was an assault that clearly falls at the low end of thespectrum of assaultive behaviour, when seen in context it cannot in my judgment be fairly characterised as a trifling act or a mereirregularity that does not engage a public interest. [58] Mr. Kolebaba’s counsel sought to argue that his client’s action in tearing his wife’s clothing was a measured response to hiswife’s aggressive actions—a response that might even (he said) be viewed as an attempt to discourage the continuation of the escalatingconflict between them.

Seen in that light, counsel submitted, the court could infer that Mr. Kolebaba’s behaviour had a constructivepurpose and, at the very least, his action should be given a de minimis characterisation. [59] I cannot accept that novel submission. In my view, in an escalating physical encounter between angry spouses, a retaliatory “eyefor an eye” tearing by the male of the female’s garment of the kind displayed by Mr. Kolebaba has neither an apparent nor a realconstructive purpose.

To the contrary, such action can reasonably be expected only to aggravate and inflame—and not calm and quell—an ongoing dispute. [60] A benign characterisation cannot successfully be imposed on Mr. Kolebaba’s act of tearing his wife’s tank top. It is behaviourthat one can anticipate would do exactly what it did here—that is, accelerate and prolong a conflict that had already developedunwelcome, physical dimensions. There is a clear public interest in preventing and curtailing inter-spousal conflict, especially where thatconflict degenerates into physical violence.

There is a clear public interest in using the mechanisms of the criminal law to hold toaccount persons like Mr. Kolebaba who engage in conduct that fulfils all the requirements of the definition of assault and, as well,contributes to the escalation of family conflict and its further degeneration into violence. [61] Unlike the situation confronted by the court in McLeod or the facts in any of the other cases of which I am aware where the deminimis maxim was invoked, Mr.

Kolebaba’s actions in the case at bar constitute more than a “trifling deviation” from what the lawrequired of him in the circumstances in which he found himself. By striking back in anger and upping the ante in a degeneratingencounter, he committed an assault that, while comparatively minor, was more than a mere “irregularity”.

His action, unlike the actionsof the accused in McLeod, Dejong and J.K.H., does “weigh ... on the public interest”—that is, the public interest in stemming familyviolence generally—because it was carried out in a manner that reasonable people can see would almost certainly intensify an alreadyescalating conflict, thereby increasing the risk of further and more serious violence. [62] I repeat that the threshold for legal tolerance for the intentional application of force without consent within spousal relationshipsis, and should be, a very low threshold.

It will be a rare case indeed where behaviour that meets the Criminal Code definition of assaultwill qualify for the de minimis characterisation. This case does not fit within that narrow classification. Mr. Kolebaba’s retaliatoryaction in ripping Ms. Kolebaba’s tank top—while at the low end of the spectrum—still exceeded the law’s tolerance for the intentionalapplication of force within spousal relationships without consent and, accordingly, it cannot be viewed as a triviality of which the lawshould take no notice.

CONCLUSION AND DISPOSITION [63] For all of the reasons set out above, I find that the Crown has proven, beyond a reasonable doubt, that on July 5, 2010, whilst inthe midst of an escalating and increasingly physical conflict with his wife, Mr. Kolebaba pulled down on Ms. Kolebaba’s tank top withenough force to tear it. When he did so he intentionally applied force to her body without her consent and thus he assaulted her, contraryto s. 266 of the Criminal Code. No defences to the charge were established and the de minimis maxim cannot, on the facts of this case,be invoked to shield Mr.

Kolebaba from criminal liability for his actions on July 5, 2010. Accordingly, I find him guilty as chargedunder count 1 of Information 85056-K1.

_____________________________ Thomas S. Woods, P.C.J.