R. v. J.M. Date:, 2016 BCPC 89

Citation: R. v. J.M. Date: 20160413 2016 BCPC 0089 File No: 93104-1K Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.M. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: J. Martin Counsel for the Accused: R. Bellows Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 21 and March 22, 2016 Date of Judgment: April 13, 2016

INTRODUCTION [ 1 ] The accused in this matter, [name redacted] (“Ms. M.”), is charged as follows under Information 93104-1K: “[Ms. M.], on or about November 7, 2014, at or near Maple Ridge, in the Province of British Columbia, did in committing an assault upon [name redacted] [“Mr. S-T.”], carry, use or threaten to use a weapon or an imitation weapon, to wit: a knife, contrary to

Section 267 (

a) of the Criminal Code .” [ 2 ] The complainant, Mr. S-T., is Ms. M.’s former (and recently re-married) spouse. This prosecution of Ms. M. for assault of Mr. S-T. with a weapon unfolded against the background of ongoing family law proceedings concerning future parenting arrangements for an eight-year-old child (“Child D.”) of whom Ms. M. and Mr. S-T. are the biological parents and for whom Ms. M. has generally been the primary caregiver. (Ms. M. also parents two other children, by other biological fathers, for whom she is the primary caregiver and with whom Mr.

S-T. has had some step-parent involvement.) [ 3 ] At the relevant time, Mr. S-T. paid child support to Ms. M. to cover part of the cost of meeting Child D.’s day-to-day needs. The altercation giving rise to the subject assault-with-a-weapon allegation arose on November 7, 2014, out of conflict that developed between Ms. M. and Mr. S-T. concerning the timing of Mr. S-T.’s November 2014 child support payment. [ 4 ] Most of the facts which are germane to this prosecution are not in dispute.

The Crown and defence witnesses are sharply divided, however, on the question of whether, during a heated exchange over the payment of child support, Ms. M. ran at Mr. S-T. brandishing a knife and made some kind of intentional, non-consensual, physical contact with him while doing so (though not with the knife). [ 5 ] Ms. M. testified in her own defence at the trial of the serious charge laid against her and, with respect to the core features of the altercation that is at the centre of controversy, her version of events differed radically from that given by the key Crown witness and complainant, Mr. S-T.

His version, in turn, was significantly different from that given by his wife (“Ms. S-T.”). Thus, inevitably, the court is now called upon to make a careful assessment of the credibility of the testimony of Crown and defence witnesses in order to determine whether the Crown has met its onerous burden of proving all of the essential elements of the offence of assault with a weapon against Ms. M. beyond a reasonable doubt. UNCONTROVERSIAL FACTS [ 6 ] As I have noted, there is little disagreement between the testimony of Crown witnesses, Mr. S-T. and Ms. S-T., on the one hand, and the accused Ms.

M. on the other, regarding most of the background facts surrounding and leading up to the altercation that occurred on November 7, 2014. I provide, below, a brief narrative

summary of those uncontroversial facts. Not every aspect of the evidence that was given at trial is recounted in the

summary I am about to present (or in my canvassing of the evidence in the areas where facts are in dispute, for that matter); however, everything that is relevant and material will be mentioned. [ 7 ] During the course of the time that Mr. S-T. and Ms. M. cohabited as spouses (from 2005 to 2011), their relationship was troubled. By their own admission, both of them, during those years, displayed at the least verbally abusive behaviours toward each other on occasion. [ 8 ] Historically, Ms.

M. has been gang-raped and she suffered with various mental health problems, including bi-polar disorder and post-traumatic stress disorder—some of which conditions are related to sexual abuse she suffered as a child. Her mental health problems were less well controlled and managed, medically, during the years when she and Mr. S-T. were spouses than they have been more recently. Ms. M. has also been involved in illicit drug use but that, too, is historical; Ms. M.’s uncontroverted evidence was that she has been clean for eleven years. Ms.

M.’s mental health and substance abuse problems at times led to interventions by the provincial Ministry of Child and Family Development; however there is no evidence before me to suggest any recent involvement of that Ministry with her or her children relating to concerns about her. [ 9 ] As has been noted, Ms. M. and Mr. S-T. have long been separated and, indeed, Mr. S-T. has since re-married. Mr. S-T. and Ms. S-T. have an infant child together. However—in part by reason of the children that Ms. M. and Mr. S-T. share—there has been continuing contact between them from time to time, some of it cordial.

Indeed, when in the fall of 2014 an unexpected car repair bill left Mr. S-T. and Ms. S-T. with insufficient funds to meet their rent payment, Ms. M. stepped up and offered them a place to stay rent-free in the basement of the home where she was living (her mother’s house) so that they could get back on their feet financially. All she required from them was a “token” $200/month contribution toward food and utilities. Thus, in September of 2014, Mr. S-T., Ms.

S-T. and their two daughters left their rental home knowing that they would be evicted when their rent came due on October 1st and moved into the basement of Ms. M.’s mother’s home. The space they occupied was adjacent to the space Ms. M. occupied herself. All occupants of the house shared the kitchen facilities on the main floor. [ 10 ] This arrangement was known by all to be a temporary one; it was a stop-gap measure to enable Mr. S-T. and Ms. S-T. to get over the temporary financial setback occasioned by the unexpected car repair cost and then resume life as normal.

While, at first, there was no precise deadline set for them to leave, as time passed they reached an understanding with Ms. M. that the temporary arrangement would continue until the end of November and that they would depart at the beginning of December of 2014. It was the parties’ expectation, in other words, that being relieved of the need to pay rent, and with Mr. S-T. still working full time, he and his family would have saved enough money to be able to obtain new rental accommodation and move out by December 1st. [ 11 ] While the Family Court order that required Mr. S-T. to pay child support to Ms.

M. for the benefit of Child D. specified that payments be made on the 15th day of each month, the parties’ actual practice for some time leading up to November 2014 had been for Mr. S-T. to pay his child support payment when he was paid, even if his payday came before the 15th. The alleged offence date of November 7th was a payday for Mr. S-T. and so—had the established practice been followed—he would have made his child support payment for November to Ms. M. that day. However, the established practice was not followed on this occasion. When she raised the

issue with Ms. S-T. during the morning of November 7th, Ms. M. did not receive the answer she was expecting. She learned from Ms. S- T., and in follow-up communications from Mr. S-T., that he did not have the funds to pay the child support on his payday according to their established convention, that that payment would have to be delayed, and that Mr. S-T. might even have to get a payday loan in order to make the payment.

It was the receipt of this unwelcome news that triggered the conflict that culminated in the altercation about which the Crown and defence evidence is so widely divergent. [ 12 ] What is not in dispute is that Ms. M. did not in any way conceal her displeasure at the news that Mr. S-T. would not be paying his November child support on the usual timetable—that is, when he received his paycheque from his full-time employer. Ms. M. did not hesitate admitting that she yelled and complained about this break from their established practice, so much so that Mr.

S-T. came home from work in the middle of the day when summoned to do so by Ms. S-T. Neither did Ms. M. deny that she was loud, angry and relentless in demanding her child support for Child D. from Mr. S-T. after he got home. She admitted to demanding payment of it, over and over again, sometimes using vulgar language, and to following Mr. S-T. about the house while making those demands in what was, unquestionably, a very angry spectacle. [ 13 ] Ms. M. attributed the intensity of her upset to the fact because she was providing Mr.

S-T. and his family rent-free accommodation and requiring them only to make a nominal contribution toward food and utitities, she expected that Mr. S-T. had seized the opportunity she had given him to get his finances in order. She was incredulous and dismayed to learn that, having been relieved through her generosity of the need to pay rent for (to that point) the months of October and November, Mr. S-T. could still be unable to fulfil his November child support obligation to her in the ordinary way.

Thus, she believed that she had been taken advantage of and made a very voluble display of her displeasure. [ 14 ] For his part, Mr. S-T. tried to get Ms. M. to relent, explaining that it would take a little time for him to be able to pay the child support. As his own level of agitation began to increase, and while trying to persuade Ms. M to back off, he swore back at her (calling her a “fucking psycho bitch” and other derogatory names) and threatened to defer payment to the court-ordered date of November 15th. [ 15 ] Ultimately, as the conflict escalated and the yelling grew louder, Ms.

S-T. placed a 9-1-1 call that resulted in an attendance of police at the residence. It is what happened immediately prior to the placing of that 9-1-1 call that lies at the root of the charge of assault with a weapon that Ms. M. is facing and about which her evidence, and the accounts of Mr. S-T. and Ms. S-T., differ so markedly. FACTS IN CONTROVERSY [ 16 ] The subject altercation took place in the vicinity of the top of the stairs leading from the main floor down to the basement of the house where the parties were all living.

It is common ground that after having followed him around the basement area repeatedly demanding payment of her child support, Ms. M. pursued Mr. S-T. up the stairs to the main floor. It was then that matters began to unravel more fully. Ms. M’s Version [ 17 ] Ms. M. says that when she and Mr. S-T. got into the living room area close to the top of the stairs, they stopped moving and she stood behind him and continued yelling, demanding her child support and generally keeping up the pressure. At that point, on her account, Mr. S-T. spun around and grabbed her by the wrists and knocked her to the floor.

They landed up with Mr. S-T on top. At that point, she testified, Ms. S-T. came running up the stairs to the main floor and grabbed a cordless phone. Ms. M.’s evidence was that she could hear Ms. S-T. telling someone that she (Ms. M.) had a knife, at which point Ms. M. pushed Mr. S-T. off her, broke free and made her way to the other cordless phone to interrupt and contradict Ms. S-T.’s report that she had a knife. [ 18 ] Ms. M. categorically denies that she ever had a knife at any point throughout the altercation, or that she brandished one at Mr. S-T., or rushed toward him (or anyone) while holding a knife.

It can be seen that on her account it was Mr. S-T. who initiated physical contact with Ms. M. (and not the other way around). Mr. S-T.’s Version [ 19 ] Mr. S-T. testified that when he got to the top of the stairs, being followed by Ms. M. who continued yelling her demands that he pay child support, he walked into the kitchen. As he did so she followed and kept shouting, “’Give me my f’in money, Give me my f’in money,’ repeatedly, non-stop without a break in between” ( Trans. , January 21, 2016, p. 10). [ 20 ] Somewhat surprisingly, Mr.

S-T. testified that as this was happening, he was moving about in the living room/kitchen area “looking for [his] smokes” ( Trans. , p. 10). He went on to say that it was when he was on that quest for his smokes that he threatened he would withhold payment of child support for Child D. to November 15th (when it formally came due) if she did not get “off [his] back”. At that point—which Mr. S-T. said came after 10 minutes of verbal harassment—Ms. M. (according to Mr. S-T.) rushed into the kitchen and rustled through the knife drawer in a loud and aggressive way. [ 21 ] Mr.

S-T.’s description of events continued as follows at pages 11-13 of the Transcript. “…I saw a knife come out of the -- a large kitchen knife come out of the drawer. As soon as she had the knife in her hand, we made eye contact. I was maybe 20 feet away from -- away from her. I was -- I was closer to the -- you go -- when you go up the stairs, the basement stairs, there's a door that's open that goes down like I explained it and then the living room is on the right. I was right by the living room and the door when she had the knife in her hand. And immediately I said, "Please, don't, please.

I'll get your money right now. Please." I started begging her. She ran at me full speed. Like nothing slowing her down. I was scared for my life. I started backing up. I got to the kitchen door. THE COURT: Can you just slow down, please? Okay. I've got you 'til, "I was backing up." A So I was backing up slowly towards the -- towards the basement door -- the top of the basement door where she was running at

me full speed and I was begging her, "Please, stop, please. I'll get your money right now. I'll get your money right now. Please don't." I'm sorry. As we were -- once I'm at the top of the door -- the basement door, I can hear she's right up close to me now. I can feel her -- her other -- it was her left shoulder was almost touching mine and she had the knife in her other hand. My wife, I heard her running up the stairs. I then -- as soon as I noticed that my wife was running up the stairs, I started screaming down at my wife to stay downstairs and not come upstairs, repeatedly. She didn't listen.

She continued to come up. She had heard me screaming. The door was about halfway open and it was -- I'm on the left of the door kind of, like just -- just in front of the door, and she is right in front of me. We're directly in front of the basement door. It's halfway open. My wife pushes the door. [Ms. S-T.], she pushes the door open all the way. She then was between myself and -- and [Ms. M.]. From what I can see, she was holding onto her – [Ms.

M.]'s hands, both of the hands, saying, "What the hell do you think you're doing?" At this point, I -- this is when I got really scared and I couldn't see the knife anymore. My wife had been -- had separated us and now they were -- they were scuffling together. Somehow, I seen [Ms. M.] fell -- fell backwards. My wife, [Ms. S-T.], still had, from what I saw -- still had hold of her hands. As [Ms. M.] had fell backwards, the -- her left hand had grabbed my wife, [Ms. S-T.]'s -- was like holding onto her shirt. My wife, [Ms. S-T.], went down on top of her. As soon as they were on the ground, I then ran over to them.

I was standing over top of them. I didn't see the knife at this point. I was worried that she -- that my wife had fallen on top of it. I then grabbed both of [Ms. M.]'s hands. I put both of her hands -- she was -- she then -- like once I got a hold of her hands, I put them both -- I pinned them both down against the hardwood floor. Still, I didn't see the knife at this point.

So she was kind of face-down from -- she was on her back and then once I grabbed her hand, I put them -- she was kind of turned towards -- like her hands towards the ground so I could get them on the floor so that I can get a hold of where the knife was. As soon as I realized the knife wasn't in her hands anymore and her hands were pinned down to the ground and I was on top of her making sure that she didn't get back up, I yelled at my wife, "Where's the knife? Where's the knife?" [Ms. S-T.] -- [Ms. S-T.] had had the knife at this point. She had picked it up.

I am unsure whether she had gotten it out of her hand or if it fell out when they fell down, if it fell out of her hand onto the floor. They were on top of it so I couldn't see it. At this point, once I realized that my wife had the knife, I yelled at her, "Call the police. Call the police right away." She grabbed the cordless phone. She still had the knife in her hand. She ran downstairs immediately to get away from the situation with the phone to call the police.” Ms. S-T.’s Version [ 22 ] Ms. S-T. described the altercation quite differently. While her account confirms Mr. S-T.’s (and Ms. M.’

s) evidence that Ms. M. was following Mr. S-T. around, repeatedly demanding that he pay her child support in a loud and aggressive manner before they went upstairs, she offers a markedly different description of what happened in relation to the interactions which occurred between and among the three parties near the top of the stairs when it is alleged Ms. M. charged at Mr. S-T. with a knife. [ 23 ] On Ms. S-T.’s version of events, it was the sound of the knife drawer slamming upstairs coupled with her hearing Mr. S-T. attempting to placate Ms.

M. by telling her he would get her the child support money she was demanding that led her to infer that Ms. M. must have pulled a knife on Mr. S-T. This inference, she testified, led her to rush upstairs herself to intervene. Ms. S-T. testified that when she got to the top of the stairs, she saw Ms. M. and Mr. S-T. facing one another with Ms. M. holding a knife in her right hand in a threatening way. She went on to say that she inserted herself between them—facing Ms. M. and with her back to Mr. S-T.—and stared Ms. M. down. Her evidence was that Ms.

M. then moved in a way that made it appear that she had decided to return the knife to the drawer. However, on Ms. S-T.’s account, Ms. M. quickly spun back around and—still holding the knife—turned on her . At this point, she testified, Mr. S-T. came around from behind Ms. S-T. and pushed Ms. M. to the ground and pinned her there. Mr. S-T. asked Ms. S- T. where the knife was—it having somehow come free from Ms. M.’s hand while Ms. S-T. was retrieving it from the floor. Ms. S-T. reported that Ms. M. then grabbed onto her shirt and tried (unsuccessfully) to pull her down. At that point, according to Ms. S-T., Mr.

S- T. yelled at Ms. S-T. to place a 9-1-1 call (which she said she did from a cordless phone, after she ran off with the knife). At some point, Ms. S-T. testified, Ms. M. got onto another cordless phone and interrupted the call, telling the person at the other end that Ms. S-T. was lying about the use of a knife. [ 24 ] I consider it helpful to reproduce the main part of Ms. S-T.’s evidence-in-chief on the parameters of the altercation in these Reasons, as I have done with Mr. S-T.’s version. The following extract is taken from pages 46-48 of the Transcript.

Q When you say they're "fighting", what is actually going on? A They're just back and forth yelling at -- I don't recall exactly the words at that point. It was just so loud that I don't remember. Q Are they both yelling? A Yeah, at that point they were. Q And where is this yelling taking place? A In the bedroom. They were in the bedroom at this point. Q Is that the bedroom that was your bedroom? A I shared with [Mr. S-T.], yes. Yes. And at one point, [Mr. S-T.] went back upstairs so she followed him up the stairs and the

fighting continued up there. I turned the TV really loud and -- Q Which TV is it that you turned up? A It was in the kids' room that was adjoining to mine and [Mr. S-T.]'s. I didn't want [child’s name redacted] to hear too much of it if I could help it. Q And what could you hear at that point? A I heard yelling and then I heard the knife drawer slam. And the kitchen is right above the room that we were in. So as soon as I heard that, I closed the door and I ran up the stairs. And [Mr. S-T.] was yelling, "I'll get your money. I'll get your money." Q Okay. I'm just going to slow you down a bit. A Sorry.

Q You said you heard the knife drawer slam. How do you know it was that drawer? A Honestly, probably part of it was instinct. I heard -- I heard the -- the slamming of the drawer and the -- everything in it was clanking together as it slammed. And then [Mr. S-T.] started yelling at the top of his lungs, "I'll get your money. I'll get your money." And those two things together kind of put it in perspective for me. So I ran up the stairs and I was yelling, "I don't think so." I had some choice words in there as well. Q You were yelling? A Yeah. Q And what exactly did you say, do you recall? A It's a bad word.

Q It's okay. We just need you to say exactly what you said. A Is that okay? I said, "I don't fucking think so," as I'm running up the stairs. And as soon as I got up to the top of the stairs, she was -- they were right there. Like she had the knife in her right hand and I got in between them and turned my back to [Mr. S-T.]. And I thought it was over. I thought it was over but she turned around like she was putting it back and then just came right around. It was almost like a psych out. Came right around and came for me. And [Mr. S-T.] came from behind me and -- Q Okay. I'm just slow you down there. A Sorry.

Q And [Mr. S-T.] came from behind you? A Yeah, 'cause I was -- I was in between them. I was facing [Mr. S-T.] -- my back to [Mr. S-T.]. He came from behind me and -- THE COURT: Can you just -- A Sorry. THE COURT: -- speak more slowly? A Sorry. He came from behind me and pushed her on the ground. I didn't really see -- I just saw her fall and [Mr. S-T.] pinned her on the ground and the knife fell out of her hand against the wall and the chair -- the couch slid. And at that point, I -- I guess I kind of -- she tried to pull me -- she pulled my shirt.

I remember looking down at my shirt because I heard like a stretching and I thought it was a rip. So I looked down and she -- it was fine. It was just like her pulling -- trying to pull me down on top of her. So grabbed the knife and I freeze at that point. [Mr. S-T.] says, "Grab the phone. Call 9-1-1." I was like, "Oh, yeah." So I grabbed the phone. I had the knife in my hand. I grabbed the phone in the other and I go back downstairs and I throw the knife on the bed. And I'm on the phone with 9-1-1. And I -- at one point, she grabbed the phone.

Discrepancies Between the Key Crown Witnesses’ Versions [ 25 ] In several details—some important, and some less so—Mr. S-T.’s version of events at the critical time differs from that of the other key Crown witness, his wife Ms. S-T. For example: (

a) When Ms. S-T. came running up the stairs to intervene, Mr. S-T. says he “screamed” at her, repeatedly, to stay downstairs and not to come up. She came up despite his numerous and forceful urgings not to, he said. Ms. S-T. made no mention whatsoever of Mr. S- T. attempting to discourage her from coming up to join the fray, either through repeated “scream[ing]” or otherwise; (

b) While Mr. S-T. and Ms. S-T. both testified that when the latter arrived upstairs she got between Mr. S-T. and Ms. M., his version has Ms. S-T. grabbing hold of Ms. M’s hands and demanding to know what Ms. M. was doing. Then, Mr. S-T. testified, the two women fell to the ground and continued to scuffle with Ms. M. on the bottom and Ms. S-T. on the top. This is entirely at odds with Ms. S-T.’s account in which it was Mr. S-T. who shouted “Don’t you dare” at Ms. M. Ms. S-T. was also clear in her evidence that she did not touch Ms. M. at all and that it was Mr. S-T. who pushed Ms. M. to the ground and pinned her there; and

(

c) Ms. S-T. made much of what she described as a misleading gesture made by Ms. M., giving her the impression that, after being “stared down” by Ms. S-T., she had decided to put the knife back in the drawer. Ms. S-T. testified, more than once, that this manoeuvre made her believe that the altercation “was over”. Thus, on Ms. S-T.’s version, what Ms. M. had in fact executed was a feint—that is, a deceptive “psych out” (her words)—following which Ms. M. spun back around and charged again with the knife, this time at her . There was no mention whatsoever of any of that in Mr.

S-T.’s version and, as I have noted, he and his wife give entirely conflicting accounts of who took Ms. M. to the ground. [ 26 ] It is of course true that altercations like the one that occurred between Ms. M. and Mr. S-T. and Ms. S-T. unfold quickly and at times when the participants are highly stressed. Courts do not expect perfect observational accuracy nor perfect recall from the participants in such circumstances.

Courts should and do, however, expect that Crown witnesses—upon whose testimony proof of serious criminal wrongdoing is sought to be established beyond a reasonable doubt—will at least agree broadly on the essentials. That did not happen here. The discrepancies between the accounts of Mr. S-T. and Ms. S-T. are large and important. Their descriptions of the altercation diverge on key points. [ 27 ] I acknowledge the submissions made by Ms. Martin for the Crown in which she made reference to areas in which Mr. S-T. and Ms. S-T.’s accounts did stand together.

Both witnesses, she reminded me (for example), gave testimony concerning Ms. M. grabbing Ms. S-T.’s shirt once Ms. M. was on the ground. But in my view, the areas of disagreement between the accounts of Mr. S-T. and Ms. S-T. which I have identified go to the heart of the charge against Ms. M. They are not redeemed by consistency in respect of other, comparatively unimportant, details. The failure of the Crown’s evidence to hang together in the noted, critical areas is fatal to its case against Ms. M. Other Concerns about the Credibility of the Crown’s Evidence a. Ms.

S-T.’s inference [ 28 ] I find I must turn a deeply sceptical eye upon the parts of the Crown’s evidence in which both Mr. S-T. and Ms. S-T. offer their explanation as to what it was that led Ms. S-T. to intervene in the altercation unfolding upstairs between her husband and Ms. M. [ 29 ] It will be recalled that Ms. S-T.’s evidence was that it was sounds coming from the knife drawer in the kitchen, coupled with a change in Mr. S-T.’s words to more conciliatory, “Okay, I’ll pay you the child support” kinds of statements, that led her to infer that Ms. M. must be threatening her husband with a knife.

That evidence, I find, is not credible. [ 30 ] Ms. S-T. claimed to be able to recognise the sounds made by knives jostling in a knife drawer upstairs in the kitchen from her vantage point within her self-contained suite in the basement. The door at the top of the stairs was half-closed before Ms. S-T. came up, according to the uncontroverted evidence of Mr. S-T. That partial barrier to sound transmission was compounded, however, by the considerable noise being made by Mr. S-T. and Ms.

M.—both of whom were described repeatedly as being involved in a shouting match in which they were yelling at one another at high volume. Indeed, at the very point where Ms. S-T. claims to have discerned and recognised the particular sound pattern that knives would make in the drawer that housed them from one floor away, she testified that Mr. S-T. was yelling “I’ll get you your money” repeatedly at the top of his lungs . Then there is the fact that, in order to shield her children in the basement from the traumatic experience of hearing the screaming and yelling of Mr. S-T. and Ms. M. upstairs, Ms.

S-T. had turned on the basement television and set it at high volume to make them inaudible to the children. She did this specifically to mask the sound of the goings on upstairs . Ms. S-T.’s testimony in this regard is found at pages 46-47 of the Transcript. … And at one point, [Mr. S-T.] went back upstairs so she followed him up the stairs and the fighting continued up there. I turned the TV really loud and -- Q Which TV is it that you turned up? A It was in the kids' room that was adjoining to mine and [Mr. S-T.]'s. I didn't want [child’s name redacted] to hear too much of it if I could help it.

Q And what could you hear at that point? A I heard yelling and then I heard the knife drawer slam. And the kitchen is right above the room that we were in. So as soon as I heard that, I closed the door and I ran up the stairs. And [Mr. S-T.] was yelling, "I'll get your money. I'll get your money." Q Okay. I'm just going to slow you down a bit. A Sorry. Q You said you heard the knife drawer slam. How do you know it was that drawer? A Honestly, probably part of it was instinct. I heard -- I heard the -- the slamming of the drawer and the -- everything in it was clanking together as it slammed. And then [Mr.

S-T.] started yelling at the top of his lungs, ‘I'll get your money. I'll get your money.’ And those two things together kind of put it in perspective for me. So I ran up the stairs and I was yelling, ‘I don't think so.’ I had some choice words in there as well. [ 31 ] I consider it highly improbable that, in such circumstances and over the prevailing din created by the altercation itself and the “really loud” television sounds that she had intentionally introduced to prevent her child from hearing what was going on upstairs, Ms.

S- T. could not only hear the sound made by the contents of a kitchen drawer from one floor away but could also identify which drawer was being handled based on the unique sounds made by its contents. [ 32 ] Ms. S-T.’s testimony in this regard is rendered even less credible by the fact that it is premised on Ms. M. having “slammed” the knife drawer—an unnecessary action when one considers that the allegation is that Ms. M. took the knife out of the drawer, and thus

had no particular need to shut it (either gently or by slamming it). Beyond that, nowhere in Mr. S-T.’s testimony did he ever say thatwhen he observed Ms. M. getting a knife from the knife drawer that she (Ms. M.) slammed (or even closed) that drawer. On his account,after getting the knife out of the drawer, Ms. M. and he made eye contact and then immediately she ran at him with it: Trans., p. 11. [33] My concern that it is highly improbable that, in these circumstances, Ms.

S-T. would have been able to hear what she claims tohave heard and form an inference that a knife attack on her husband was imminent, leading her to run upstairs to intervene, is deepenedby the fact that Mr. S-T. claimed in his police statement to have “guessed” that Ms. S-T. had come upstairs because she had heard thedrawer open: Trans., pp. 28-29. Remarkably, while their separate recollections of key aspects of the altercation aligned on very little,they did align on this. I consider it to be much more probable that Mr. S-T. and Ms.

S-T. discussed their evidence before giving theirpolice statements and their testimony at trial, and that this small instance of partial agreement between their accounts of the relevantevents can be attributed to that. b. The events immediately following the altercation [34] Ms. S-T. testified that when she was able to get hold of the knife that she and Mr. S-T. claim Ms. M. used in the course of theassault that is at issue in this proceeding, she took it downstairs to her basement suite, put it on her bed and placed her 9-1-1 call. As Ihave noted, she also testified that Ms.

M. got hold of another cordless phone in order to interrupt her report to police to inform those atthe other end that the allegations about her use of a knife to intimidate Ms. S-T. and Mr. S-T. were false. I find it difficult to accept that,in the wake of the kind of confrontation she described in her testimony, Ms. S-T. would simply leave on her bed the weapon that sheclaims had been brandished so threateningly against her and her husband only moments before. Indeed, her evidence-in-chief was that,after putting the knife on the bed and completing her 9-1-1 call, Ms.

S-T. resumed packing in preparation for moving out: Trans., pp. 51-52. [35] These actions are not consistent with those one would expect of a person who, moments earlier, believed that both she and herhusband were in mortal danger of being stabbed. What real comfort or sense of enhanced safety and security could be derived by takingone particular knife Ms. S-T. claims was used by Ms. M. during the assaultive encounter, taking it downstairs and simply putting it onher bed and leaving it there? [36] Recall, as well, that the knife that both Mr. S-T. and Ms. S-T. allege was used by Ms.

M. during the course of the altercationwas but one of a number of knives that were kept in a drawer in the kitchen. It was those knives, jostling together, that had such adistinctive sound signature that Ms. S-T. claimed she could hear and recognise it from a floor away over a din created by two adultsyelling at each other at the tops of their lungs and by a TV turned up “really loud” to block out the noise of the confrontation. [37] If, as is claimed by the Crown’s key witnesses, Ms.

M. had just displayed murderous intentions toward them brandishing oneknife, would one not expect—so soon after such a violent altercation—that they would take some more concrete steps to assure their ownsafety and that of their children? Tossing the alleged assault weapon on a bed, going back to packing and having no apparent interest inor concerns about the numerous other knives that occupied the knife drawer in the kitchen, all while Ms. M. continued to have free run ofthe house, does not seem to me to be the conduct that one would expect of either Ms. S-T. or Mr.

S-T. in the immediate wake of theviolent display they attributed to Ms. M. in their testimony—even if the police were on the way in response to the 9-1-1 call. [38] Similarly—having (on his account) no reason to believe that Ms. M. could or would not retrieve other knives from the knifedrawer—Mr. S-T. testified that, while Ms. S-T.’s 9-1-1 call was in progress, he ventured back up to the main floor of the house with hisone-year-old child in his arms. And he had Ms. S-T. follow him with their four-year-old. Mr.

S-T.’s testimony in this regard, in chief, isfound at page 13 of the Transcript. … My wife had -- once I realized that she was just on the phone trying to plead her case to the police and I wasn't in immediate danger, Iwalked away and ran downstairs and told my wife 'cause I think my wife was still worried about getting our stuff out of there. I had toldher that, "Leave everything in the house. We're not going to touch anything until the police show up." I picked up my one-year-olddaughter from the playpen. I then held her tight and I ran upstairs while my wife had our four-year-old daughter follow with us.

Atsome point, I think it was -- just by the time I got to the top of the stairs with my wife and left, my wife had handed me the phone 'causethe police wanted to talk to me. (emphasis added) [39] This conduct is simply not what one would reasonably expect from someone who, only moments before, had (together with hiswife) been assaulted by Ms. M. while brandishing a knife. To put it slightly differently, this conduct lacks harmony with "... thepreponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in thoseconditions”: Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) at p. 357. I am aware that Faryna is a civilcase but the applicability, with appropriate caution, of its reasoning in criminal cases has often been acknowledged: see, for example, R.v. Wilder, [2003] B.C.J. No. 2884 (S.C.) at paras. 641-642, aff'd [2006] B.C.J. No. 1 (C.A.), per Romilly J. [40] To the contrary, these displays of sanguine behaviour by both Mr. S-T. and Ms. S-T. are more consistent with what one mightexpect to find in the wake of a heated argument over child support that, due to his own impecuniosity, Mr. S-T. could not pay to Ms.

M.,even though he and his family were temporarily living in her house as her guests, rent-free. Mr. S-T.’s behaviour (in contrast to hiswords) suggests an encounter where he eventually “snapped” (as Ms. M. said he did) under unrelenting pressure from her and pushed herto the ground, and in which no assault (with a knife or otherwise) was committed by Ms. M. against anyone. To put it even morepointedly, these displays of sanguine behaviour on the part of the complainant and his wife combine with other features of the evidencewhich align much more closely with Ms.

M.’s version of events than the illogical and internally conflicting testimony given by Mr. S-T.and Ms. S-T. against her. c. Motive to injure the reputation of Ms. M. [41] While there is no definitive proof that in giving testimony that portrayed Ms. M. in a very unfavourable light Mr. S-T. and Ms.S-T. were actuated by an improper motive, the presence of a motive to injure her reputation is unquestionably a factor that the court maytake into account in the course of conducting a credibility assessment. As Charron J. (for the court) characterised it in R. v.

Laboucan,2010 SCC 12, the fact that a witness’s interest in proceedings may have an impact on credibility is a “common sense proposition” (at

para. 12). [ 42 ] In the case at bar, there are family law proceedings pending in which Mr. S-T. and Ms. M. are adversaries with respect to future parenting arrangements for Child D.: Trans., pp. 24 and 66. It is Ms. M.’s entitlement to child support for Child D. from Mr. S-T. and Mr. S-T.’s failure to pay it in accordance with an established convention that triggered the conflict that erupted between Ms. M. and Mr. S-T. on November 7, 2014.

Indeed, subsequent to the events of November 7, 2014 that are at issue in this proceeding, primary caregiver responsibility for Child D. has been shifted on an interim basis away from Ms. M. to Mr. S-T.: Trans., pp. 99-100. [ 43 ] The presence of a motive to discredit Ms. M. in order to secure an advantage in upcoming family court proceedings with regard to the parenting of Child D. is a factor that I consider helps to explain, at least in part, why Mr. S-T. and his wife Ms. S-T. ineptly gave disparaging evidence against Ms. M. which, on examination, does not withstand scrutiny. Ms. M.’s Evidence [ 44 ] Ms.

M.’s evidence, given in her own defence in this prosecution, did not display the same problems as did the evidence of key Crown witnesses, the complainant Mr. S-T. and his wife Ms. S-T. [ 45 ] For example, Ms. M. did not shrink from making admissions against interest where candour required her to make those admissions. She was frank in acknowledging her past difficulties with drugs and her mental health. She readily acknowledged that her behaviour in following Mr.

S-T. about the house, repeatedly demanding payment of child support in a loud, insistent and sometimes vulgar way, was provocative, undignified and insensitive to the needs of the children who were also in the house. Ms. M.’s willingness to accede to the truthfulness of assertions put to her about her own past and present behaviours that were, to say the least, unflattering, gave me confidence that when giving her testimony overall, she gave it truthfully, even where it was at times potentially harmful to her own interests. There was little if any comparable candour displayed by Mr. S-T. and Ms.

S-T. when they were questioned about matters that reflected poorly on them. The bobbing and weaving that both did in seeking to avoid admitting that, due to their own impecuniousness, they decamped from their previous rented home without giving proper notice to their landlord is but one example. [ 46 ] Thus, when Ms. M. showed steadfastness in (

a) her denial that she committed any assaultive behaviour against Mr. S-T., and (

b) her denial of making any use of a knife during the altercation she had with Mr. S-T. on November 7, 2014, I found those denials to be consistent and objectively believable. [ 47 ] Ms. Martin, for the Crown, subjected Ms. M. to a mannerly but forceful and well-planned and well-executed cross-examination. Despite that, I do not consider that throughout that cross-examination Ms. M. can be said to have been shaken on any matters of importance. [ 48 ] Ms. Martin invites the court to question the credibility of Ms.

M.’s evidence, noting that she testified to having been a victim, in the past and in the subject altercation, of abuse at Mr. S-T.’s hands. She points to Ms. M.’s version of events and her references to Mr. S- T. having grabbed her and taken her to the ground and invites the court to question the veracity of that testimony, given that, after the altercation, Ms. M. did not flee the house but quickly rushed to get onto one of the cordless phones in the house. Ms. Martin also points to the fact that, since the altercation, Ms. M. meets Mr. S-T. regularly at times of transition when Child D. is passed between them.

This, Ms. Martin submits, is not the conduct one would expect of a fearful woman who has been attacked; rather, she submits, it is conduct more consistent with what one would expect from someone who had been the attacker. [ 49 ] I respectfully disagree. Ms. M. was quite clear in her testimony under cross-examination (see Trans., pp. 99-100) that she no longer fears Mr. S-T. in the way she did when they were in a relationship: Q And at this point, [Child D.] lives with [Mr. S-T.] and [Ms. S-T.], is that correct? A Yeah, their end goal, their motive, yeah.

Q And so -- but they still allow you to see him on the weekends, is that correct? A No, the judge allowed me to see him. The judge made an order that I get my kid at 3:15 on Fridays. They've taken it upon themselves to not give him to me until 6:45, seven o'clock. So yeah, they still take my parenting time away and make me pay, if you will. Q And these exchanges have been taking place at the King George Skytrain Station? A Yeah, I have no choice but I'm supposed to get him at 3:15 but I don't. Q And you've been meeting them personally to pick up your son? A Yeah. Q And taking him back on the Sundays? A Of course.

Q And you're not fearful at all of seeing [Mr. S-T.] at that point? A He pinned me down and screamed in my face. Believe me, in our relationship, I went through worse: punches in the face, spitting in the face, okay? I went through worse with that man. Q Yet despite having been attacked by him, you still feel comfortable enough to pick up your son from him directly, is that correct?

A I have my mom with me or somebody with me. I'm not afraid of [Mr. S-T.]. That's not my thing. My thing is that I'm sittinghere for something I did not do. [50] Neither were Ms. M.’s actions on November 7, 2014 or the months preceding them—some of which actions, she candidlyadmits, were ill-advised—suggestive of a fear on her part of Mr. S-T. A woman who was deeply afraid of Mr. S-T. would not haveinvited him and his family to live in her house at close proximity in order to give him an opportunity to get himself back on his feet,financially. Neither would a woman who was deeply afraid of Mr.

S-T. have pursued him from room to room on the alleged offencedate demanding, over and over again in a loud voice, that he live up to his obligation to pay child support in accordance with theirestablished practice. Findings Regarding the Controversial Facts [51] In a case of this kind, where the accused calls defence evidence and there is irreconcilable conflict between the accounts givenby Crown and defence witnesses of critically important facts, the court is called upon make a credibility assessment following theparameters set down by the Supreme Court of Canada in R. v.

W.D., (SCC), [1991] 1 S.C.R. 742, at 757, as enlargedand modified by the B.C. Court of Appeal in R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (C.A.). Under thatformulation: (

a) If I believe the exculpatory evidence of the accused, I must acquit; (

b) If, after a consideration of all of the evidence I am unable to decide whether to believe the exculpatory evidence of the accused or theCrown witnesses, I must acquit; (

c) If I do not believe the exculpatory evidence of the accused, but am left in reasonable doubt by it, I must acquit; and (

d) Even if I am not left in reasonable doubt by the exculpatory evidence of the accused, I must ask myself whether—on the basis of theevidence I do accept—I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [52] I will say that the case before me falls to be decided on the first branch of the R. v. W.D. formulation. I believe Ms. M.’sevidence and find as a fact that she did not at any time during the altercation she had with Mr. S-T. make use of a knife.

I believe herevidence and also find as a fact that to the extent that there was non-consensual force applied in the course of that altercation, that forcewas applied by Mr. S-T. to Ms. M. when he gripped her by the arms and pushed her to the ground. [53] As the complainant, Mr. S-T. had the most important Crown evidence to give against Ms. M. He characterised himself as thevictim of the alleged assault with a weapon and the Crown sought, through the testimony of Ms. S-T., to corroborate his evidence againstMs. M.

However, as I have explained, the two Crown witnesses’ accounts are markedly discrepant from one another and otherwise notcredible. I am mindful of the motive to discredit Ms. M. that both Mr. S-T. and Ms. S-T. have as a result of their adversarial position visà vis Ms. M. in relation to family law proceedings which are currently underway. I consider that that motive likely explains, at least inpart, how it came to pass that they gave poorly coordinated testimony against Ms. M. that, for the reasons outlined above in theseReasons, I am unable to credit as having been truthful.

DISPOSITION [54] For all of the foregoing reasons, I acquit Ms. M. of the charge of assault with a weapon. _________________________________Thomas S. Woods, P.C.J.