2020 NBPC 10, 2020 NBPC 10

2020NBPC10 Provincial Court Province of New Brunswick Date: October 16, 2020 Docket: 15730313 Her Majesty, The Queen - and - Chadwick Harris Trial Decision Appearances: Alana Napke, for Her Majesty the Queen Martin Siscoe, for Chadwick Harris Introduction 1 . On the morning of July 28 th , 2020 the accused and the complainant awoke in the bed at her rented residence in Beaverbrook, New Brunswick. They had been in a relationship that was described as “on-again, off-again” but recently had not been dating. 2 . An incident or incidents occurred after both were awake; the participants do not dispute this.

What is disputed is who began the incident, how it progressed and how it ended. 3 . The complainant’s version of events and her calling of the police led, eventually, to the arrest of the accused, his detention and a series of serious charges against him. This case is about whether the Crown has proven the guilt of Mr. Harris on any of those charges beyond a reasonable doubt.

The Evidence The Crown 4 . The complainant in this case, April Bryenton, is a 39-year-old woman who lives on her own and was residing at the time of the alleged incidents at a residence in Beaverbrook, New Brunswick. She was not employed at the time of the alleged incidents but had been in a relationship with the accused for some period of time. 5 . She described the relationship is on and off again and testified that they would go months without speaking. As of the date of the incidents, July 28, 2020, she indicated she and Mr. Harris were not going out as the relationship was toxic. 6 .

In particular she indicated that both she and Mr. Harris were going through difficult times and that they had not been getting along for several weeks leading up to the incident. She’d only been living in the rented mini home in which she was residing for approximately a month as she was trying to make some changes in her life and distance herself from Mr. Harris. 7 . On the evening before the incident Mr. Harris called her and indicated he wanted to be picked up so that they could talk and ensured her that it would not end up in a fight.

She picked him up at his sister’s residence and drove him back to her residence at approximately 11 PM. They watched a movie and he stayed the night. 8 . She indicated that when she woke up in the morning she realized that she might have missed a doctor’s appointment and contacted the office. She said that the accused was upset because he was a patient of the same doctor and wondered why she had not checked to see if he also might have had an appointment that he missed. 9 . A portion of the conversation that she had with the doctor’s office was conducted while she was in the bathroom Mr.

Harris, according to her version of events, described her as being sneaky. In response to his frustration over her failure to check to determine if he had an appointment, she called the doctor’s office back and allowed him to talk to them on the telephone. Both the accused and the complainant were seeing the doctor in question to receive methadone as a result of addictions; in her case to hydromorphone. 10 . Matters escalated, and the accused flicked his cigarette ash on the floor and bed. She believed he was doing it to upset her and she told him to leave.

She acknowledged that she might have hit or scratched the accused and his chain was broken. The accused became upset and out of control. The accused pushed the complainant between the bed and the wall, moving the bed in the process. Mr. Harris was then over top of her, keeping her down, stepping or jumping on her legs. She couldn't get up. His forearms were against her body and he kept driving her down into the corner and swearing at her. Ms. Bryenton was trying to get up, but the accused was still screaming in her face saying she hadn't seen half of what he was capable. 11 .

The accused then left the room and went to the living room, where he began to break things, including the cell phone of a friend of the complainant that she was considering buying. The complainant was concerned as she had only recently moved into the mini home and the owner, Ron Savoie, had painted the home. At some point she advised the accused she was going to call the police. 12 . The accused left the residence and the victim locked the door. The accused came back in through the exterior door.

The complainant was in the bedroom and did not see him enter but heard a bang and then the accused entered the bedroom and grabbed the complainant by her by hair while shoving her into the wall. As he did this he said that she would “ regret calling the cops.” He grabbed her so hard some hair came out. As he was leaving she realized her tooth was chipped and her mouth was bleeding. 13 . The complainant believed the accused kicked in the door as she had locked it and she heard a bang before he grabbed her by the hair. 14 .

As a result of the hair pulling the complainant had a bruise in her hair line and hair pulled out. She also had a chipped tooth and scratches on her arm, shoulder and back. 15 . Photographs entered as P-1 depict a broken door frame, which she said was not broken before this incident, a chipped tooth, a bedroom in disarray with what appears to be chocolate milk on the curtains, a broken smartphone, and scratches on the arm of the complainant. In addition, a pair of glasses, which appear to be broken and with what looks like blond hair stuck in the glasses, are also depicted.

The complainant testified that she had been wearing the glasses. 16 . The complainant, who had called police, decided to leave by car. When she opened the car door there appeared to be smoke in it, though she was unsure how it occurred. The complainant denied being fearful to take the stand though she acknowledged the accused had spoken to her by telephone from jail after his arrest and he apologized 17 . On cross examination she denied that it was she who called the accused on the day before or in the early morning hours of the date of the incident.

She also admitted a drug problem which she has been addressing through suboxone for approximately 7 months. She admitted consuming illicit drugs a couple of days before the incident and having a possession of drugs charge in 2019, though she denied being on drugs on the day of the incident. 18 . In addition to the complainant the Crown called three police officers, all members of the Royal Canadian Mounted Police. The first of those, Constable Adam Peter Paul indicated that on the date in the information he responded to a call of a domestic assault in progress

in the Beaverbrook area. He learned as he was responding to the call that the complainant was driving away from the scene in a Dodge Charger. He met that vehicle on the road as it passed him and noted that the brake lights came on and the vehicle returned to his location. 19 . The driver the vehicle was the complainant in this case who was crying and began to describe what occurred between her and the accused. Constable Peter Paul, along with the complainant, went to the residence to determine whether or not the accused was still present.

After clearing the outside of the home, Constable Peter Paul entered the residence along with the complainant. He observed that the bed in the bedroom was moved, a piece of the electric heating register was off the front of the unit, and a pair of broken glasses were present with longer blondish colour hair inside the frame of the glass. He noted that the front door of the residence had been broken and cracked. With respect to the complainant the officer noted that she was crying, had a small cut on her wrist that was bleeding, and her left eye tooth was chipped. 20 .

Constable Charles Bougie, who also responded to the call, assisted Constable Peter Paul with the clearing of the residence and after obtaining a quick physical description of Mr. Harris called the Miramichi Police Force to put out a be on the lookout notice. Following this he took pictures of the items depicted in P – 1. Beyond noting the same things as Cst. Peter Paul, Cst. Bougie also said that there was redness on the neck of the complainant that was not well depicted on the photos. 21 .

Finally, Cst Louis Phillipe Poitras testified that during the taking of a statement from the complainant that he was advised about and observed a scratch on the back of the complainant from the middle of the back to the top right side of the shoulder. The scratch was approximately 5 cm in length. The Accused 22 . The accused testified on his own behalf. 23 . He is 46 years old and is a red seal journeyman pipe fitter. He acknowledged a relationship with the complainant which he felt meant more to him than her. He testified that the complainant lived with him for a time at his former residence.

The relationship was off and on and consisted in some cases of her asking for and him giving her money 24 . With respect to the alleged events, the accused testified that he was residing at his sister’s house and received a call at 1 o’clock in the morning on the date of the information from the complainant asking him to come to her residence and indicating that she would pick him up. She did in fact do so and he got into the vehicle. There was very little conversation on the 15-minute drive from his sister’s residence to the complainant’s. 25 .

He indicated that upon arrival at the residence the complainant was renting that he and the complainant were intimate, there was no movie that was watched as the complainant had testified and he fell asleep. He said that the complainant did not sleep as she was waking him up flicking her lighter and rolling a glass bowl. Though he did not observe it specifically he believed she was smoking crystal meth. 26 . In the morning he said that she told him that she thought she might have missed her doctor’s appointment and went into the bathroom to talk in private.

He confirmed that she had not asked the doctor, who was also his physician for the purpose of the administration of Suboxone, about whether or not he also had an appointment. In response she placed a call for him and he spoke to someone at the doctor’s office. 27 . After the telephone call he testified he was laying on the bed and smoking a cigarette. While doing this he was falling asleep and ashes from his cigarette fell on the bed.

He said that the complainant, who was laying beside him, became irate and struck him between the eyes with her elbow, ripped his chain and his shirt and was striking or clawing at him. 28 . He indicated that in defence he rolled her over and the bed slipped away from the wall and she slid off the bed. Once she was behind the bed he exited the bedroom and went into the living room and sat on the couch. He denied stepping, jumping on or kicking her while she was between the bed and the wall.

He reiterated that the entire incident began when she elbowed him and that he believed she was in a drug-induced psychosis. 29 . He denied threatening her and indicated that he left the residence to walk to his sisters. Having been shown the picture of the broken doorjamb he indicated that it did not look like that when he attended that evening nor did it look like that when he left in the morning. He did say that the door had been broken previously by him at the complainant’s request when she had left her keys inside. He testified he had fixed the door after that.

Again, he specifically indicated that when he left the residence after the altercation that the door did not appear as it did in the picture. 30 . He was also shown the picture that displays the chipped tooth of the complainant and indicated that he did not do that and that it was not chipped or at least he did not notice a chip before leaving the residence. 31 . While the accused admitted to asking the complainant not to call the police he indicated he did not threaten the complainant and that he did turn himself in.

He denied breaking the glasses depicted in P – 1 and indicated that he does not even remember the complainant ever wearing glasses. 32 . On cross-examination he indicated that the only reason for his rolling the complainant off the bed was to prevent her from attacking him. He also acknowledged calling the complainant from jail but that it was a mistake as he was trying to call his sister.

The Onus and Standard of Proof 33 . Mr. Harris, like every other person charged with a crime, is presumed to be innocent until the Crown has proven his guilt beyond a reasonable doubt. The Crown bears the burden of proof throughout the entire trial. The accused does not have to present evidence or prove anything. [1] 34 . This principle, as Richard, J.A. (as he then was) said “is common to most adversarial systems of criminal law.

It is intertwined with the presumption of innocence, and it requires that, in order to validate a conviction, the prosecution bears the burden of satisfying the trier of fact that the accused is guilty on the basis of proof beyond a reasonable doubt .” [2] 35 . In Wilson , Justice Richard noted the “evident danger” is cases where the prosecution is “effectively grounded solely on the testimony of a complainant, and the defence on the diametrically opposed testimony of the accused”. [3] The danger is that in such cases the burden of proof may be forgotten, and the case determined on the basis of credibility. 36 .

It is crucial for a trial judge, engaged in a case such as the one before me, not to forget the fundamental and intertwined principles that everyone is presumed innocent, that the burden rests with the Crown and that the burden can only be displaced on the basis of proof beyond a reasonable doubt. It is not enough for a court to believe that an accused is probably or likely guilty. 37 . Of course, the standard is reasonable doubt and not absolute certainty. A reasonable doubt is not based on sympathy or prejudice, nor is it “proof beyond any doubt” or “an imaginary or frivolous doubt.” [4] 38 .

Reasonable doubt must stem from reason and common sense and is logically connected to the evidence or lack thereof. It cannot be grounded in speculation or conjecture. [5] 39 . The Crown must prove all the essential elements of the offence beyond a reasonable doubt and in determining whether they have met this burden, I must consider the evidence as a whole. Reasonable Doubt and Credibility 40 . As described above, it is crucial in a trial involving the assessment of credibility of an accused to assess that person’s evidence applying the reasonable doubt standard. In R. v.

W.(D.) , [6] the Supreme Court provided an approach to the assessment of an accused person’s credibility by using a three-step analysis. Those steps are as follows: a. in the first step, the trial judge should ask him or herself whether she or he believes the testimony provided by the accused. If so, an acquittal must be entered. If not, then b. the second step requires a consideration by the trial judge as to whether the accused person’s evidence causes her or him to have a reasonable doubt concerning the accused person’s guilt. If so, an acquittal must be entered.

However, if the answer to the first and second questions is no, then c. the final step in the analytical process developed in W.(D.) requires the trial judge to consider the totality of the evidence presented to determine if the accused’s guilt has been proven by the Crown beyond a reasonable doubt. [7] 41 . The majority in W.(D.) never intended that this formula be a word for word script, nor that the failure to use the words be an automatic ground for reversal.

The Court has taken great pains since the decision to emphasize that the purpose of the wording in W.(D.) . is to ensure that lack of credibility of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. In R. v. Dinardo , [8] the Court held that: In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. [9] 42 . As noted in Wilson , a plethora of jurisprudence has arisen from W.(D.) . Justice Richard provides an extrapolation of the principles which have emerged from that jurisprudence and I reproduce and adopt the principles regarding the standard of proof in criminal cases: A.1 Proof beyond a reasonable doubt, the standard in criminal law matters, applies equally to the issue of credibility: W. (D.), at para. 26.

In other words, the issue at the end of a trial is not credibility, but reasonable doubt: Sheppard , at para. 65, and C.L.Y ., at para. 6. A.2 The ideal reasoning process to determine a matter, where the accused denies guilt and credibility is in issue, is to follow the W. (D.) formula: a. First, if the accused is believed, there must be an acquittal; b. Second, if the accused is not believed but the trier of fact is left in a reasonable doubt by it, there must also be an acquittal; c.

Third, even if the evidence of the accused does not raise a reasonable doubt, a conviction is only justified if the trier of fact is convinced of guilt beyond a reasonable doubt on the basis of the evidence that is accepted: W. (D.), at para. 28. A.3 However, this formula is but a roadmap to remind the trier of fact the ultimate goal is proof beyond reasonable doubt and not merely a credibility contest; it is not the only route: C.L.Y., at para. 8. It is the substance of the test that must be respected, not its literal tripartite incarnation : R. v.

Szczerbaniwicz , 2010 SCC 15 , [2010] 1 S.C.R. 455 (S.C.C.), at para. 14 . A.4 A trier of fact need not firmly believe or disbelieve any witness or set of witnesses: W. (D.), at para. 27. A reasonable doubt need not rest upon the same sort of foundation of factual findings that is required to support a conviction. A reasonable doubt arises where an inadequate foundation has been laid: R. v. Walker , 2008 SCC 34 , [2008] 2 S.C.R. 245 (S.C.C.), at para. 26 , quoting Sharpe J.A.,

dissenting, in R. v. Kendall, (ON CA), [2005] O.J. No. 2457 (Ont. C.A.). A reasonable doubt does not need to bebased on the evidence; it can arise from an absence of evidence or from a simple failure of the evidence to persuade the trier of fact to therequisite level: R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197 (S.C.C.), at para. 39. A.5 Trial judges are presumed to know the law with which they work day in and day out: R. v. B. (R.H.), (SCC),[1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (S.C.C.), at para. 18.

A.6 By stating that the accused is not believed, a trial judge is implicitly addressing the first two steps in W. (D.): Boucher, at paras. 29and 59.[10] 43. To repeat the caution offered in Wilson, in a case where the prosecution is grounded on the testimony solely of the complainant andthe defence on a denial by the accused, the danger is that the case will become a credibility contest and the burden of proof will be loston the trier. I must instruct my self, and do, not to fall into this trap. The burden, which is proof beyond a reasonable doubt, is on theCrown and remains so throughout the trial.

Credibility Generally 44. In addition to the considerations of W.(D.) this case requires a careful assessment of credibility. In R. v. Gahan,[11] the Court ofAppeal addressed the assessment of credibility by trial judges and held it is the function of weighing many factors. A useful staring pointis to remember that a trier of fact can accept all of the evidence, some of the evidence, or none of the evidence of each witness.[12] 45. Credibility is not simply the assessment of the truthfulness of a witness but also the reliability of the testimony of the witness. 46.

Assessing credibility is not a function of a set of rules or a rigid methodology, but rather the “product of the judge or jury’s view ofthe diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter”.[13] 47.

Jurisprudence from the Supreme Court of Canada, the Court of Appeal of New Brunswick, and other courts provide some guidance.The following non-exhaustive list of relevant factors in assessing credibility arises from that jurisprudence: a. the witness's opportunities for knowledge;[14] b. the witness's powers of observation;[15] c. the witness's judgment and memory;[16] d. the witness's ability to clearly describe what has been seen and heard;[17] e.

How the testimony of the witness harmonizes "with the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions.";[18] f. the cogency of the account;[19] g. Inconsistencies, and whether such inconsistencies: i. make the main points of the testimony more or less believable and reliable ii. whether the inconsistency is about something important, or a minor detail; iii. whether the inconsistency seems like an honest mistake or a deliberate lie.[20] h.

Whether the witness has an interest in the outcome of the case, or any reason to give evidence that is more favourable to one sidethan to the other, though care should be taken not to put undue weight on this factor;[21] i. An absence of motive for the complainant to lie is a relevant to the fact-finding process[22] however, the trier of fact, must becareful to remember that this is but one factor, the accused has no obligation to prove a motive to fabricate and to not to let this factor turninto a reversal of the onus of proof;[23] and j.

The demeanour of the witness, though this but one of the elements that enter into the credibility of the evidence of a witness andcan be both an unreliable indicator of truth and fallible.[24] 48. As indicated above, it is also important to consider the reliability of a witness. The fact that a witness may be “found to be credibledoes not answer the question of whether the evidence provided is reliable…The distinction is an important one and must be recognizedby a trial judge in order to reach a just verdict.”[25] 49.

Finally, it is important in trials of this nature to avoid determining credibility based upon stereotypical reasoning or assumptionsabout how a person should react in any given situation. The Elements of the Offence 50. The accused is charged with several offences. All of the offences are alleged to have occurred on July 28, 2020 at or nearBeaverbrook, New Brunswick. On that date and place he is alleged to have: a. Committed an assault on April Bryenton that caused bodily harm to her, contrary to s. 267(

b) of the Criminal Code of Canada;

b. Knowingly uttering a threat to April Bryenton to cause death or bodily harm to her, contrary to s. 264.1(1) (

a) of the Criminal Code of Canada ; c. Committed mischief by wilfully damaging without legal justification or excuse and without color of right property of Ron Savoie, being the dwelling house, the value of which did not exceed $5000, contrary to s. 430(4) (

b) of the Criminal Code of Canada ; d. Breaching the terms of a Probation order, specifically by failing to keep the peace and be of good behavior, contrary to s. 733.1(1) of the Criminal Code of Canada ; e. Intimidation of a justice system participant contrary to s. 423.1(1) (

b) of the Criminal Code of Canada ; f. Knowingly uttering a threat to April Bryenton to burn personal property of April Bryenton, contrary to s. 264.1(1) (

b) of the Criminal Code of Canada ; 51 . Before proceeding to describe the essential elements of the offences described, the Crown concedes that there is no evidence before the court that the accused was subject to a probation order at the time of the offence. Nor, the Crown concedes, was any evidence called that the accused threatened to burn the personal property of Ms. Bryenton. As such, I find the accused not guilty of count number 4, the breach of the probation order, and count number 6, the alleged threat to burn the personal property of the complainant. Assault Causing Bodily Harm 52 .

With respect to the remaining offences, the crime of assault is defined in s. 265(1) of the Code. It reads as follows: 265

(1) A person commits an assault when (

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

b) he attempts or threatens, by

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

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. 53 . An assault pursuant to section 265(1) (

a) of the Criminal Code involves the touching of another person, directly or indirectly, without their consent. The strength of the force is immaterial and thus the slightest touching of another person without their consent can constitute an assault. 54 . The New Brunswick Court of Appeal has held that it is not necessary that the accused actually apply force or even intend to do so. It is sufficient if he threatens to do so and has the present ability to do so. 55 .

The offence of assault causing bodily harm involves an assessment of whether an assault as described above occurred, coupled with an inquiry of whether that assault caused bodily harm. This involves both the question of factual and legal causation. The mens rea for assault causing bodily harm is the general intent to apply force and an objective foreseeability that the assault would subject the victim to the risk of bodily harm. [26] Uttering Threats 56 .

The elements of the offence of uttering threats include: (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intent to threaten. The threats can be uttered, conveyed, or in any way caused to be received by any person. The question of whether words constitute a threat is a question of law to be decided on an objective standard. The question is, when looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person?

The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously. Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient. 57 . The fault element is made out if it is shown that threatening words uttered or conveyed "were meant to intimidate or to be taken seriously. It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient or that the accused intended to carry out the threat.

Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously. The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances. [27] Mischief 58 . For the crime of mischief, the elements required to be proven are an actus reus that involves proof that the accused destroyed or damaged property of another person.

The mens rea for the offence in this case is defined by

section s. 430(1), which defines mischief as “wilful” acts of destruction and interference with property. This is modified, however, by s. 429(1) which defines that term to include recklessness. This extension of the definition also reduces mischief from a specific intent offence to one of general intent. [28] Intimidation of a Justice System Participant 59 .

Section 423.1(1), intimidation of a justice system participant, requires the Crown to prove that the accused engaged in some form of conduct towards a justice system participant. The

section previously contained specific types of conduct that were required to be proved but the

section in effect at the time of the offences no longer limits the type of conduct. The term "justice system participant" as defined in s. 2 of the Criminal Code includes an informant, a prospective witness, a witness under subpoena and a witness who has testified.

60 .

Section 423.1(1) is a specific intent offence. The Crown must prove beyond a reasonable doubt that the accused intended to provoke a state of fear in the complainant and, second, the Crown must prove beyond a reasonable doubt that the accused intended to provoke that state of fear in order to impede the complainant in the performance of his or her duties. [29] Analysis 61 . The question of whether the actus reus and mens rea for any particular offence has been established requires a consideration of the evidence of both parties, the required elements and the relevant burden.

As each of the offences here have distinct factual circumstances I will deal with the evidence, and my determination of how the facts apply to the law, separately for each offence. I will, however, deal with issues of credibility and make findings of fact in relation to the first offence charged but that assessment, including my application of W.(D.) applies to all of the offences and I will refer back to it when analyzing the subsequent offences. Assault Causing Bodily Harm 62 .

While a trial is not a credibility contest, the question of the credibility of witnesses often becomes central to the live issues in the trial. As I indicated above, a useful staring point is to remember that I can accept all of the evidence, some of the evidence, or none of the evidence of each witness. [30] 63 . I begin with considering whether the Crown has established the offence of assault causing bodily harm on April Bryenton. I find, beyond a reasonable doubt, that the Crown has established all of the essential elements of the offence.

I also find as such having considered whether the Crown had met its burden to disprove self-defence. In doing so I have applied the framework analysis of the accused’s evidence suggested in R. v. W.(D.) which I will describe below. For now, I simply say that I did not believe those portions of his evidence which were exculpatory (with the exception of finding that the complainant initiated the physical contact), nor did they leave me with any reasonable doubt. Further I find that the totality of the evidence establishes the guilt of the accused with respect to this offence for the following reasons. 64 .

With respect to the testimony of April Bryenton, I believe, and find, that the accused pushed her or rolled her between the bed and the wall in her bedroom in the midst of a dispute and that once she was there, I believe and find that he jumped or stepped on her. I also believe and find that he left the residence and then reentered by breaking open the locked door and upon his reentry he grabbed the complainant by the hair and pushed her against the wall. I do also find that Ms. Bryenton was the first person to use physical force.

Her testimony on this was vague, but I believe and accept that she struck or scratched the accused in her frustration over his behavior including the flicking of his cigarette ashes on her bed. This finding will necessitate a consideration of the self-defence provisions of the Criminal Code . 65 . With respect to the evidence of Ms. Bryenton I find it both credible and reliable for the following reasons: a. the witness clearly had an opportunity to provide the evidence she did. She was one of two people present during the course of the events; b. her evidence is supported by the evidence of other witnesses.

In particular the observations of all of the police officers (all of whom I find credible and reliable) support Ms. Bryenton’s version of events. While the injuries they noted might have come during a struggle in which she was the aggressor, I find that their nature to be more consistent with her version of events. They also noted and photographed the broken cell phone and the broken glasses which clearly contain pieces of the hair of the same color as that of the complainant; c. Ms. Brenton’s evidence is consistent with the photographs entered as exhibit P-1.

The first photograph of the exhibit shows a broken cell phone consistent with what she described. The injuries she described are depicted in the photographs, as is the disarray in her room; d. April Bryenton did not embellish her evidence. When asked if she was scared or frightened by the threats alleged, she indicated she was not but was rather overwhelmed; e. April Bryenton’s memory of events was certainly not perfect but where she had memory difficulties she articulated them and acknowledged them.

For instance, with respect to the question of whether or not the accused had threatened to burn her property, she had no memory of that event. This enhances his credibility with respect to those items which he was able to clearly recall, specifically the assault, the threat and the mischief; f. the witness’s evidence harmonizes with the events that occurred on the day in question. After reporting the events described to police, she sought their help by leaving the residence to meet with them; g. Ms.

Bryenton’s testimony, or her demeanor during testimony, appeared to be one of trying to recall and recount events truthfully, though testimonial demeanor can be an unreliable predictor of truth and I place limited weight on this factor. 66 . As indicated above the accused testified on his own behalf. He admitted to being in the residence, to getting into a dispute with the complainant, but says that he only rolled the complainant off the bed, causing her to go between the bed and wall, in response to her attacking him. He denied stepping or jumping on the complainant.

He denied any other assault on the complainant and denies breaking the door. He denies causing the injuries to the complainant and says that her tooth was not chipped when he left, nor was the door damaged in the manner the pictures depict when he left the residence. He also denied threatening the accused and said that he only asked her to “please don’t do that” when she called the police. 67 . With respect to his evidence, I believe that the complainant struck the first blow or made the first physical contact. I do not believe that it consisted of an elbow to his face and a persistent attack.

Nor do I believe him when he says that he did not jump or step on the complainant when she was on the floor, nor do I believe that he did not break items, leave the house and regain entry by forcing in the

door. I also do not believe his denial that he committed a further assault by grabbing the hair of the complainant and forcing her into the wall. I likewise do not believe him when he denied, in the course of the aspect of the incident, telling the complainant she would regret calling the police. 68 . With respect to those things I disbelieve, my lack of belief is based on the following: a. the accused’s evidence does not harmonize with the physical evidence provided in this trial.

His suggestion that the injuries received by April Bryenton, particularly the chipped tooth, were either not present or he did not observe them, belies logic. For Mr. Harris to suggest that Ms. Bryenton had a chipped tooth prior to this encounter that he had never noticed would mean that he did not notice something about a woman with who he had lived for a period of time and had been in a romantic relationship. This does not make sense. If the alternative suggestion is that the tooth was not chipped prior to his departure, this would suggest she inflicted the injury on herself after his departure.

I reject this possibility; b. The same consideration applies to the door. Though he says the door had previously been broken and repaired, he claims it was not in the state as depicted in P-1 when he left the residence. To accept this, I would again have to find that the damage occurred after his departure. I do not believe that it did; c. Mr. Harris disclaims any knowledge of the broken glasses or cell phone. The fact that they are damaged and that the glasses contain hair of the same color as that of the complainant is inconsistent with the evidence of accused.

Simply put his evidence does not correspond to the physical evidence; d. Mr. Harris suggests that the complainant was in a drug induced psychosis. The complainant spoke to three police officers shortly after the events, one of whom encountered her while she was driving. None testified to any indication of drug use, impairment or intoxication or psychosis; e. The witness did not testify in a manner that appeared to be truthful. He was evasive in his answers and made efforts to disparage the character of the complainant.

That said appearances of telling the truth can be both an unreliable indicator of truth and fallible. As such, I place limited weight on the accused’s testimonial demeanour. 69 . The second step of W.(D.) requires a consideration by me as to whether the accused person’s evidence, considered in the totality of all the evidence, causes me to have a reasonable doubt concerning the accused person’s guilt. If so, an acquittal must be entered. The evidence of the accused, considered with all the evidence, does not cause me to have a reasonable doubt for the same reasons as described above. 70 .

The final step in the analytical process developed in W.(D.) requires the trial judge to consider the totality of the evidence presented to determine if the accused’s guilt has been proven by the Crown beyond a reasonable doubt. 71 . In this case, as described above, I must consider the question of self-defence. I have considered all the evidence in this matter.

Section 34 of the Criminal Code deals with self-defence. It reads: 34

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

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

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

c) the act committed is reasonable in the circumstances.

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

a) the nature of the force or threat; (

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

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

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

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

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

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

h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

72 . The New Brunswick Court of Appeal considered the

section in Cormier v R. [31] and held at paragraph 40: [40] “Section 34(1) enumerates three criteria, all of which must be present for the defence to be available. In other words, self-defence is not applicable if the prosecution proves beyond a reasonable doubt that one of these criteria has not been met.

They are: 1) Reasonable belief: the accused must reasonably believe that force or threat of force is being used against him or someone else (the subjective perception is objectively verified); 2) Defensive purpose: the subjective purpose for responding to the threat must be to protect oneself or others (this is a subjective state of mind); and 3) Reasonable response: the act committed must be reasonable in the circumstances (this is objectively assessed). 73 .

In considering the three requirements in s. 34(1) of the Criminal Code for self-defence, all three are required for the defence to succeed, however, it is the burden of the Crown to prove beyond a reasonable doubt that one or more of the requirements was not met Reasonable belief: (the subjective perception is objectively verified) 74 . I will begin with the first requirement, which is whether Mr. Harris believed, on reasonable grounds, that force was threatened against him. With respect to the initial physical contact, I reiterate some of my findings of fact, I find that Ms.

Bryenton made the first physical contact in response to Mr. Harris flicking ashes on the bed and floor, though I do not accept that the force was as described by Mr. Harris. Given this, I find that the Crown has not disproven this first element of the test beyond a reasonable doubt and find that the accused had a belief on reasonable grounds that force was being used against him. Defensive purpose: (this is a subjective state of mind) 75 . The second requirement requires a consideration of the purpose of the response and, in particular, whether it was defensive.

I conclude that the Crown has proven beyond a reasonable doubt that Mr. Harris’s response was not committed for the purpose of defending or protecting himself in the circumstances. While the initial shove or rolling of Ms. Breynton might have been defensive in purpose, the stepping or jumping on her and the subsequent assault by grabbing her hair and pushing her into a wall were not defensive, and I find beyond a reasonable doubt that Crown has disproven this element. Though it is not strictly necessary, I will move to the final element. Reasonable response: (this is objectively assessed) 76 .

Even if I were to accept that Mr. Harris assaulted Ms. Bryenton in response to her initial physical action, and therefore to protect himself, the Crown has proven beyond a reasonable doubt that, considering the factors listed in s. 34(2) taken cumulatively, Mr. Harris’s actions far exceeded the bounds of reasonableness. 77 . The force used by Mr. Harris was clearly disproportionate. He jumped or stepped on the complainant while on the ground, pulled her hair and shoved her into a wall. This was clearly disproportionate to complainant’s use of force.

After the initial push the accused used force to push the accused into the floor and would not let her up. This again was disproportionate. 78 . The accused, if not the first to strike, was provoking the accused by flicking ashes on the floor and bed. While it does not justify her action, it is a relevant consideration. Mr. Harris is physically larger than the accused. There was no evidence from either party that the complainant had a history of violence toward the accused or anyone else that would justify the intensity and violence of his response. 79 .

Given the above, and in keeping with the final step in W.(D.) , I have considered all of the evidence and find beyond a reasonable doubt that Crown has established that Chadwick Harris, without the consent of April Bryenton, applied force intentionally to her directly and that the Crown has further established beyond a reasonable doubt that Mr. Harris was not acting in self-defence. The only other question that remains with respect to the charge of assault causing bodily harm, is whether the chipped tooth and scratches on Ms.

Bryenton constitute bodily harm and whether they were caused by the assault of the accused. 80 . “ Bodily harm” is defined in s. 2 : “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. 81 . While the scratches may constitute bodily harm [32] that is more than trifling I find that the chipped tooth, which remains chipped, certainl does and clearly constitutes a hurt or injury that satisfies the definition is s. 2 .

I further find as a fact, and beyond a reasonable doubt, that it, like the scratches, was caused by the assault committed by the accused. 82 . On the totality of the evidence, I conclude that the Crown has proven beyond a reasonable doubt that the injuries suffered by the complainant, April Bryenton, resulted from the accused, Chadwick, assaulting her. The mens rea has also been proven beyond a reasonable doubt as the injuries were objectively foreseeable in the circumstances. Therefore, the assault upon Ms. Brenton meets the definition of assault causing bodily harm as per s. 267 (

b) of the Criminal Code , and I find the accused guilty of that offence.

Uttering Threats 83 . The elements of the offence of uttering threats were described above. Based upon my findings on credibility and applying the W.(D.) framework, I find that the accused told the complainant, while grabbing her hair and pushing her into the wall, that she would regret calling the police. I believe it was said, and I disbelieve the accused when he denies saying it. His evidence also does not leave me with a reasonable doubt about whether it was said.

Looking at all of the evidence I find beyond a reasonable doubt that the words were uttered, that the words constitute a threat when looked at objectively, in the context of all the words spoken, the context in which they were spoken and having regard to the person to whom they were directed, as they would convey a threat of serious bodily harm to a reasonable person. That the complainant testified that she was not intimidated by it or took them not to mean he would harm her is not determinative. 84 .

I also find that the words were meant to intimidate or to be taken seriously and thus I find that the Crown has established, beyond a reasonable doubt, that the accused is guilty of the offence contrary to s. 264.1(1) (a). Mischief 85 . With respect to the charge that the accused damaged a dwelling house owned by Ron Savoie, I believe the complainant when she testified that the accused caused the damage in the manner she described and, applying the W.(D.) framework, I do not believe the evidence of the accused nor does it leave me in a reasonable doubt for the reasons described above.

Looking at all the evidence I find beyond a reasonable doubt that the accused, after having been locked out of the residence, forced his way back in by breaking open the locked door, which caused the damage as depicted in P-1. While there was no evidence of the monetary amount of the damage, I am satisfied that the door was rendered less suited for its intended purpose at least temporarily. I am also satisfied that the property was owned by Ron Savoie and the accused caused the damage willfully. I therefore find the accused guilty of the offence contrary to s. 430(4) (b).

Intimidating a Justice System Participant 86 . With respect to the alleged offence contrary to s. 423.1(1)(

b) the Crown has not specified in the information what conduct the accused engaged in to provoke a state of fear in the complainant to impede her in the performance of her duties. 87 . The Crown suggests that it followed the suggested form of charge wording the in Criminal Code in not specifying a conduct. Leaving aside that the suggested form of charge is simply a helpful appendix from the publisher and not a part of the Criminal Code itself, the charge must contain, pursuant to s. 581(3) , sufficient factual detail: (

a) to afford reasonable information with respect to the alleged act or omission of the offence charged (which relates to the principal physical elements or state of affairs of the alleged misconduct), and (

b) to identify the factual transaction referred to (which relates to specific particulars as to time, place and other factual matters). 88 . The Crown asserted in argument that conduct alleged was the threatening words that the complainant would regret calling the police. While this might have been the intent of the Crown, it is not specified in the information. It is fundamental to a fair trial that an “accused knows the charge, or charges, he or she must meet”. The purpose of the indictment is to put the accused on “formal notice of his or her potential legal jeopardy”. [33] 89 .

In this case, the omission is not technical. There was evidence that the accused called the complainant from jail and the complainant and accused were both questioned on this. A reasonable inference could have been drawn that the Crown was relying on this as the conduct under s. 423.1(1)(b). 90 . In any event, the question of the sufficiency of the count is to some degree rendered moot by my findings on the evidence. While I am satisfied that the accused uttered words that constitute a threat, s. 423.1(1)(

b) is a specific intent offence. The Crown must prove beyond a reasonable doubt that the accused intended to provoke a state of fear [34] While I might find that the words uttered were intended to provoke a state of fear in the complainant I am not satisfied that the Crown has proven beyond a reasonable doubt that the accused intended to provoke that state of fear in order to impede the complainant in the performance of his or her duties. I therefore find the accused not guilty of the offence contrary to s. 423.1(1)(b). 91 . I sought and received the consent of the parties to provide an oral

summary of these reasons. I am filing a full written judgment, proving a copy to the parties and noting that an oral

summary of this judgment has been read into the record. ______________________________Cameron Gunn, PCJ