R. v. Harris, 2023 BCPC 220

Citation: R. v. Harris 2023 BCPC 220 Date: 20231019 File No: 93607-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. RONALD WATSON HARRIS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: W. Dorsey Counsel for the Defendant: S. Sandhu, Articled Student for S. Badea Place of Hearing: Abbotsford , B.C. Date of Hearing: August 21, 22, and September 8, 2023 Date of Judgment: October 19 ,2023 INTRODUCTION

[1] Ronald Harris is charged that on June 26, 2022, in Mission, BC, he committed an assault of a Fire Captain, Brian Hahn, using aweapon, contrary to s. 267(

a) of the Criminal Code. The basic allegation is that he drove his pickup truck down a private road on hisproperty and struck Captain Hahn with the front, passenger side of his truck. [2] Having heard all the evidence, I am satisfied beyond a reasonable doubt that Mr. Harris’ truck did strike Captain Hahn. The keyissue is whether the application of force was intentional or not. Mr.

Harris testified that he did not see Captain Hahn or anyone else to theright of his truck, whereas other witnesses testified he was looking right at Captain Hahn when he struck him with his truck. [3] There were many witnesses to the incident, including four firefighters, Mr. Harris and his spouse. Consequently, I am requiredto assess the credibility and reliability of a number of witnesses, and the principles in R. v. W.(D.), (SCC), [1991] 1 SCR742 apply. CROWN’S CASE Fire Captain Brian Hahn [4] Brian Hahn is a captain with Mission Fire Rescue Service.

On June 26, 2022, he and three other firefighters responded to aburning complaint on a rural property on Best Avenue in Mission, BC. They attended the scene at 9:24 pm in a large fire truck whichwas parked alongside the property on Best Avenue. [5] As Captain Hahn walked on the property he could see the residence, a white plume of smoke, and a woman later identified asElaine Harris. Some neighbours were concerned about a yard debris fire. Mrs. Harris confirmed that they were burning yard debris andshe believed this was allowed.

She let the four firefighters look at the fire which was down the road. [6] After a couple of minutes of walking, Captain Hahn came upon a large deep-seated fire near the forest. The firefighters came upwith a plan to bring down a small fire truck to extinguish the fire, as it was unsupervised and there was no water source nearby. Thefirefighters walked back towards the residence and spoke to Mrs. Harris again. [7] Captain Hahn and Mrs. Harris were standing on the side to his left of the gravel roadway and the other three firefighters were onthe other side.

A yellow Ford F150 truck came down the roadway and was accelerating. The truck sprayed gravel and was being drivenerratically towards the group. The firefighters yelled to each other to get out of the way. [8] The Ford truck swerved towards the three firefighters on the other side of the road and then swerved towards Captain Hahn.Captain Hahn saw a male driver with two hands on the wheel, staring at Captain Hahn.

They made eye contact, although the phrase“locking eyes” was not in his police statement. [9] Captain Hahn tried to jump out of the way, but the truck swerved at him again and struck him with the front, passenger-sidequarter panel. Captain Hahn’s body hit the headlight, rolled and then hit the mirror. He lost his balance but he recalled no pain due to hisadrenaline. Captain Hahn did not recall the truck decelerating, but it came to a sudden stop after he was struck. [10] Captain Hahn was close to Mrs.

Harris when he was struck, and he had his hand out and told her to get off the roadway. [11] Captain Hahn saw the male driver holding the steering wheel and gritting his teeth. The driver swung open the truck dooraggressively and he was met with the other firefighters. Words were exchanged, and the driver was yelling and swearing. He said toCaptain Hahn, “What the fuck are you doing here, it’s my property.” It appeared that the driver wanted to fight, but he was confronted bya number of firefighters, including Firefighter Barratt who was a large man.

The driver expressed no concern for Captain Hahn at thattime. [12] Captain Hahn knew he had to de-escalate the situation, so he asked for an emergency response from the RCMP. The fire crewmoved towards the large fire truck. [13] The male driver went back into his Ford truck, drove to the fire and then drove back up the hill.

The driver apologized to CaptainHahn, saying, “I’m sorry for that.” However, Captain Hahn did not accept the apology, saying, “You just hit me with your truck and youcan speak to the RCMP.” Defence counsel conceded that the firefighters were not persons in authority and the driver’s utterances wereadmissible without a voluntariness voir dire. The driver seemed calmer at this juncture, and he drove back to the house. Captain Hahnultimately transferred command and the fire was extinguished. [14] Captain Hahn indicated that it was still light outside, as the sun had not fully set.

He was wearing a t-shirt with Mission FireRescue emblems. [15] Identity is not an issue, and the driver was Ronald Harris. He was then wearing blue jeans, no shirt, and he had white, greyishfacial hair. [16] Mr. Harris never mentioned having a medical episode or a problem with the truck. Captain Hahn saw no obstacles on the road. [17] Captain Hahn identified several photographs showing a scuff mark on his left tricep and a less visible mark on his right forearm.He did not refer to his left tricep being hit in his police statement. The photographs also depicted the roadway, the Accused and otherscenes.

Due to this incident, Captain Hahn is now more anxious when attending a call. [18] In cross-examination, Captain Hahn agreed that his shift started at 5:15 pm and firefighters often handle many calls in a day. Healso indicated that he was coming up with a plan to extinguish the fire even as Mrs. Harris was getting her husband. Captain Hahn had aportable radio on his hip but he said he was not holding a cell phone. [19] In cross-examination, Captain Hahn described Mrs. Harris as calm and nonchalant when he first met her on the property. Captain

Hahn and Mrs. Harris were standing beside each other, and they were the same distance from the yellow Ford truck when it came down the hill. Captain Hahn saw the truck accelerate and heard the truck skid a little. He did not see any pothole or large rock impeding the truck’s travel. [ 20 ] Also in cross-examination, Captain Hahn said that Mrs. Harris was not hit by the truck but she was surprised when he was hit. This differs from his police statement where he still described her reaction as nonchalant. Captain Hahn clarified that Mrs. Harris was not calm when he was hit.

She had stepped off the road to avoid the Ford truck. [ 21 ] Captain Hahn did not know that the gravel road had diagonal cross ditches, but he did not see the Ford truck bounce over anything. [ 22 ] Captain Hahn also did not hear Firefighter Barratt swear when Mr. Harris first got out of the Ford truck. [ 23 ] Further into cross-examination, Captain Hahn agreed that he did not exactly say in his police statement or fire department report that his body rolled down the side of the Ford truck.

He maintained that the truck hit more than one arm. [ 24 ] In cross-examination, Captain Hahn stated that he first saw the Ford pickup about 80 feet away, and he was attempting to move out of the way. He said he was further into the road than was Mrs. Harris. Corporal Mohr [ 25 ] Corporal Mohr is an RCMP officer and he attended the scene at Best Avenue at about 9:30 pm. He saw the fire truck and then the four firefighters on the front lawn. [ 26 ] Corporal Mohr took statements from the firefighters and photographs of the scene and Fire Captain Hahn. [ 27 ] Corporal Mohr believed there to be grounds to arrest Mr.

Harris for assault with a weapon and another charge, so he proceeded to the house. He was greeted by Mrs. Harris who said her husband was not feeling well. [ 28 ] When Mr. Harris came to the door, Corporal Mohr was caught off guard by Mr. Harris’ aggressive behaviour. Mr. Harris “exploded” out the door and was in the Constable’s face yelling. Given Mr. Harris’ age and lack of police history, Corporal Mohr simply pushed Mr. Harris back and told him to sit down. [ 29 ] Mr.

Harris did calm down, and after his arrest, there was no need for handcuffs or his removal from the property. [ 30 ] In cross-examination, Corporal Mohr said he was familiar with the property, as Mr. Harris had goats and welcomed visitors. Corporal Mohr noted a dirty scuff on Fire Captain Hahn but he could not see any injuries. Kiefor Ziefflie [ 31 ] Mr. Ziefflie was one of the four firefighters attending the burning complaint on Best Avenue. He drove the fire truck to the property. He saw the white smoke in a wooded area and was met by Mrs. Harris on the gravel road.

She did not accompany the firefighters as they walked down the hill to the fire. [ 32 ] The firefighters walked back up the hill and Captain Hahn spoke further with Mrs. Harris. Mr. Ziefflie and two other firefighters were standing on the south side of the gravel road, and Captain Hahn and Mrs. Harris were on the north side. [ 33 ] Mr. Ziefflie then saw a Ford F150 come aggressively down the road at a high rate of speed. It swerved towards the three firefighters, and then swerved towards Captain Hahn and Mrs. Harris, and then directly towards Captain Hahn.

He saw two swerves towards Captain Hahn. [ 34 ] Captain Hahn was struck by the truck mirror and probably the front passenger quarter panel. The truck then travelled another foot and slammed into park. The driver, Mr. Harris, got out of the truck aggressively, with the door swinging open. Mr. Harris yelled to the three firefighters, “It’s just a brush fire, what’s going on?” Captain Hahn was gathering himself. [ 35 ] The three firefighters confronted Mr. Harris, with Firefighter Barratt in the lead. Mr. Ziefflie agreed in cross-examination that Mr. Barratt did swear at Mr. Harris. They told Mr.

Harris that he had just hit their captain. After being confronted, Mr. Harris went back in the truck and drove towards the fire. [ 36 ] Some two to five minutes later, Mr. Harris drove back and got out of his truck. He said to Captain Hahn, “Oh yes, sorry what I did there. Maybe I’ll wear glasses next time.” He expressed no concern for Captain Hahn. Captain Hahn said the RCMP were called. Mr. Harris drove back up to the house. [ 37 ] Mr. Ziefflie first saw the Ford F150 about 80 to 100 feet away. It was coming at a high speed, spitting gravel. The front end lifted up.

He confirmed that the three firefighters on the south side of the road were on the grass at the edge of the road, and they backed up when the truck swerved towards them. [ 38 ] Mr. Ziefflie said the truck was accelerating down the hill, and it was still daylight. He saw no obstacles on the roadway. Mr. Harris did not mention any medical difficulty or problem with his truck. [ 39 ] Mr. Ziefflie saw scuffs and bruising on Captain Hahn’s upper arm. [ 40 ] In cross-examination, Mr. Ziefflie said Mrs.

Harris was on the north side of the gravel road closest to Captain Hahn, and they were standing on the grass at the road’s edge. Mrs. Harris was closest to the residence, standing to the left of the captain. The other three firefighters were on the other side of the gravel road, about ten feet from Mrs. Harris and Captain Hahn. The gravel road is about nine to

ten feet wide. [ 41 ] In cross-examination, Mr. Ziefflie agreed there was no sense of urgency about the fire. [ 42 ] Mr. Ziefflie could not recall which of Captain Hahn’s arms was struck by the truck. Captain Hahn did turn to try to avoid the hit. [ 43 ] Mr. Harris did not say he knew he hit Captain Hahn. Brian Klenk [ 44 ] Mr. Klenk was another firefighter who attended the Best Avenue property on June 26, 2022. When the four firefighters arrived to investigate the burning complaint, they walked to the gravel road and met Mrs. Harris.

She gave them permission to look at the fire, and she believed she had a permit. She went up the road to retrieve her husband who was sleeping. Mr. Klenk was in firefighter attire, and it was still daylight. [ 45 ] When Mr. Klenk and the other firefighters went down the hill and examined the fire, they felt it was contrary to existing bylaws. The plan was to bring a smaller fire truck to extinguish the fire. [ 46 ] When Mr. Klenk walked back up the hill, Mrs. Harris was standing where she was previously.

She and Captain Hahn were on the north side of the gravel road, and he and the other two firefighters were on the south side. [ 47 ] Mr. Klenk saw a pickup truck coming down the hill, proceeding more aggressively than expected. It came in Mr. Klenk’s direction, and then he saw the driver’s hands turn right, where Captain Hahn was standing. Mr. Klenk saw the truck mirror hit Captain Hahn in the shoulder area. [ 48 ] Mr. Harris got out of the vehicle in an aggressive manner; he said he was allowed to do the burning. Mr. Barratt said that they were no longer concerned about the fire, as Mr.

Harris had just hit their captain. Mr. Harris did not appear to be concerned about Captain Hahn. Mr. Harris then drove to the fire. [ 49 ] When Mr. Harris came back up the hill, he was still aggressive towards the firefighters, and there was a discussion about a fire permit. [ 50 ] Mr. Klenk said the truck was initially accelerating down the hill and was going faster than was safe to do so. The truck was going from side to side and was slowing down, but still at an unsafe speed. [ 51 ] When the incident occurred, Mr. Klenk, Mr. Ziefflie and Mr. Barratt, were standing on the south side of the gravel road.

The truck came within two or three feet of them, went another six feet, and then swerved into their captain. Mr. Klenk saw the driver turn towards Captain Hahn, with both hands on the wheel. Mr. Harris had no shirt on. [ 52 ] After hitting Captain Hahn, the truck moved less than one foot and came to a sliding stop. Mr. Klenk saw no objects on the road and knew of no medical issues with Mr. Harris. [ 53 ] In cross-examination, Mr. Klenk said he knew Mr. Harris but he had never been to his property before. In his police statement, he said Mr. Harris may have been drowsy. Mr.

Klenk did not remember seeing Captain Hahn with a phone in his hand when he was struck. [ 54 ] Mr. Klenk said Mrs. Harris was standing closer to the top of the gravel road but further back than Captain Hahn. Mr. Klenk was standing probably ten feet from Mrs. Harris. He was in disbelief when his captain was struck by the truck. The truck left the gravel road slightly when going in Mr. Klenk’s direction, and it was off the road when it struck the Captain. Mr. Klenk did not say the vehicle went in his direction in his police statement. [ 55 ] By looking through the windows of the Ford pickup truck, Mr.

Klenk saw the truck passenger mirror clip Captain Hahn. He saw Mr. Harris turn the vehicle into Captain Hahn. [ 56 ] Further into cross-examination, Mr. Klenk agreed that Firefighter Barratt said, “You hit my fuckin’ captain.” Mr. Harris responded by saying Captain Hahn would be okay or something to that effect. Captain Hahn did not wish to speak to Mr. Harris about the fire, saying that the police were on their way. [ 57 ] Mr. Klenk agreed that all the firefighters were in the same room at the courthouse the first day of trial, but they did not speak about the incident once they arrived at the courthouse.

Shawn Barratt [ 58 ] Mr. Barratt was the fourth firefighter present during the incident. He explained that after speaking to a property owner, Mrs. Harris, the four firefighters walked down to the fire. The fire was deep and on the edge of the forest. The firefighters then went back up the roadway and told Mrs. Harris that she could not burn yard debris. She said she would get her husband who was asleep. [ 59 ] Mrs. Harris returned and was standing on the north side of the roadway with Captain Hahn. Mr. Barratt was on the south side with Mr. Ziefflie, and he was unsure of the location of Mr.

Klenk. [ 60 ] A yellow Ford pickup truck came down the driveway at a high rate of speed. It first came towards Mr. Barratt and he stepped back onto the lawn to avoid the truck. The truck came within five feet of him and it too was on the grass. The truck then swerved to the north where Mrs. Harris stood, and Captain Hahn lost his balance and appeared to be hit. Mr. Barratt could not see what exactly hit Captain Hahn. The truck then came to an abrupt stop. [ 61 ] Mr. Barratt testified that Mr. Harris came out of the truck rather aggressively and he said this was not a big deal as he had a big

fire the day before. Mr. Barratt asked why Mr. Harris hit his captain and said he was no longer concerned about the fire. Mr. Barratt specifically said, “Why did you hit my fuckin’ captain?” His voice was elevated because of Mr. Harris’ aggression. [ 62 ] Mr. Harris got back in his truck and drove to the fire while the RCMP were contacted. Captain Hahn showed Mr. Barratt some redness on his right arm. [ 63 ] When Mr. Harris drove back from the fire, he tried to approach the firefighters. Captain Hahn said he would not speak with Mr. Harris as the RCMP were to arrive. [ 64 ] Mr.

Barratt first saw the Ford pickup about 80 to 100 feet up the driveway. It was still light. There were no obvious obstructions on the road. Mr. Barratt could see the driver’s hands on the steering wheel. The truck slowed as it swerved towards Captain Hahn, but it was very abrupt. [ 65 ] In cross-examination, Mr. Barratt said the firefighters were standing in a clearing as the Ford pickup came down the gravel driveway. He confirmed that the truck left the gravel road when it came within five feet of him, although that was not in his police statement.

He also did not say in his police statement that the pickup truck swerved towards him, but he did say he had to get out of the way. [ 66 ] Mr. Barratt is six foot three inches tall. He agreed he did yell at Mr. Harris and used profanity. Mr. Harris did not respond to the accusation that he hit Captain Hahn. He did not appear drowsy. [ 67 ] Mr. Barratt has spoken of the incident with his colleagues since June 26, 2022. DEFENCE CASE Elaine Harris [ 68 ] Mrs. Harris is 73 years old and she is the wife of Mr. Harris.

She previously worked as a Registrar at both Kwantlen College and the University of the Fraser Valley. She and her husband own ten acres on Best Avenue in Mission, BC. They have landscaped the property like a park. [ 69 ] On June 22, 2022, Mr. Harris said he was going to burn some brush. They later had friends over for the afternoon. At dinner, Mr. Harris hardly ate and he said he was not feeling well. At about 7:30 pm, he said he was going down to the fire to push it together.

He returned and was still not feeling well, so he went to bed around 7:45 pm. [ 70 ] Sometime later, some neighbours noticed smoke coming from their property. Mrs. and Mr. Harris thought to douse the fire, but before they did anything, they heard a fire truck arrive. [ 71 ] The gravel road on their property is crushed gravel, and there were two cross ditches on the road before the area where she was standing with the firefighters. These cross ditches angle down the hill, so truck wheels go over the ditch at different times. [ 72 ] Mrs.

Harris met the firefighters outside, and there was a discussion about a possible fire permit, although the firefighters were skeptical of its existence. Mrs. Harris went back to the house and woke up her husband. Mr. Harris leapt out of bed when he heard that the fire department had been called. Mrs. Harris described Mr. Harris as startled, upset and foggy. She went back down the roadway to where the firefighters were grouped. [ 73 ] About two minutes later, Mr. Harris started up his Ford F150 pickup truck and headed down the roadway. Mrs.

Harris was standing on the roadway, with her heels at the edge of and perpendicular to the road. One of the firefighters was close to her on the right. The other firefighters were on the other side of the roadway about twelve feet away. There was no light source on her side. [ 74 ] Mrs. Harris watched her husband drive down the roadway. He was driving quickly, and the truck slowed when it bounced over one of the cross ditches. The vehicle did not look out of control. She could see that Mr. Harris was not stopping, so she stepped back from the road.

No one else stepped back. [ 75 ] The person beside her, who she later learned was the Fire Captain or “Chief”, had his arms out and a phone in his hand. Mr. Harris drove by Mrs. Harris and when the truck reached the Captain, the Captain pulled back his hands and jumped back. The truck sideswiped his hand. The Fire Captain had been looking at his cell phone when the edge of the truck passenger mirror clipped his hand. The mirror sticks out 11 inches from the body of the truck. [ 76 ] Mrs. Harris did not hear a big thunk. She did not see any other part of the Fire Captain’s body get hit by the truck.

The Captain held the side of his hand rolling around. Mrs. Harris testified that her husband was stopping. One of the firefighters said that Mr. Harris could have killed the Captain and her, but she believed it was an accident, as her husband had just woken up and he was not a violent man. She had no impression Mr. Harris knew he had struck the Fire Captain. [ 77 ] When Mr. Harris got out of the truck, he was berated for running down the Fire Captain. Mr. Harris said nothing and drove to the fire. He had no shirt and no glasses. He usually wears progressive lenses. [ 78 ] When Mr.

Harris returned, he walked to the fire crew and said, “I apologize.” The firefighters cut him off and said the police were on their way. [ 79 ] The police arrived at the house and Mrs. Harris answered the door. Once again, she had to get Mr. Harris out of bed. Mrs. Harris heard the conversation but did not witness the arrest. The police asked her husband to sit down and told him he was under arrest. [ 80 ] In cross-examination, Mrs. Harris explained that there were no restrictions on Mr. Harris’ driver’s licence but he normally wears glasses when driving. She said Mr.

Harris was startled when she first informed him that the fire department had arrived.

[ 81 ] In cross-examination, Mrs. Harris agreed that she felt it necessary to take evasive action when Mr. Harris was driving the truck in her direction. She felt he was not going to stop. The cross ditches had been there for years. [ 82 ] Further into cross-examination, Mrs. Harris said she did not exactly see the truck’s impact on Captain Hahn. She saw his hands come up and he was holding a cell phone. She denied that Mr. Harris deliberately swerved in her direction, but she was looking at the truck and not Mr. Harris’ hands. [ 83 ] Mrs. Harris conceded that Mr.

Harris may have been rattled when he exited the truck. [ 84 ] After looking at the fire, Mr. Harris did apologize to the group. He did not say at any time that he was unhappy the firefighters were on the property. [ 85 ] When Mrs. Harris woke up Mr. Harris for the police, he was perhaps frustrated but not angry. She did not see him burst out the door. Ronald Harris [ 86 ] Mr. Harris is 76 years old. He was a contractor and served as an alderman for Mission City. He has lived on the Best Avenue property for forty years.

During that time, he cleared and cultivated the property by hand and with the use of fire. [ 87 ] Mr. Harris said he had a special fire-burning permit that was in effect on June 26, 2022. His ten acres was, in his words, his easel and one of his paintbrushes was fire. June 26 th was the first hot day of 2022, and it had been raining earlier in the spring. Mr. Harris burned some brush and by about 12:30 pm, the fire burned out. They then had some guests. [ 88 ] Later in the afternoon, Mr. Harris felt cloudy and sweaty due to overwork. The guests left sometime after 4:30 pm, and Mr. Harris helped clean up.

He was not very hungry for supper, and he kicked the fire together and went to bed around 8:00 pm. He still felt poorly. [ 89 ] Mrs. Harris awoke him and said a fire truck was on the front lawn. He leapt out of bed, put on his jeans and drove his pickup truck towards the front lawn. He never had any negative experiences with the fire department before. He felt frustrated, threatened and put upon. He did not want to lose his burning permit. [ 90 ] Mr. Harris built the gravel road on his property, and the road goes downhill with a 100-metre change in elevation. The road is eight feet wide with cross ditches.

His truck “waddles” when it travels over the cross ditches. [ 91 ] Mr. Harris saw the lit up fire truck and proceeded to drive the truck down the gravel road. After passing through the last cross ditch, his truck was moving faster and he was excited. He approached to stop, there was a flash to his right, and he brought the truck to a stop. His hands may have been frozen and he may not have followed the curve of the road. The driveway is in an “s” pattern. [ 92 ] Mr. Harris did not see any people, including his wife, to his right. He assumed all the people were to his left. [ 93 ] Mr.

Harris got out of his truck and came upon the first firefighter who said, “What the fuck, you trying to burn the forest down?” Mr. Harris realized he was not wearing his glasses, and he could not make out this first firefighter. He did not recall saying, “What the fuck are you doing here?” He did recognize Firefighter Klenk, who said they were there for a smoke complaint. Mr. Harris said he kicked the fire together before going to bed. [ 94 ] Mr. Klenk accused Mr. Harris of purposively swerving. This did not compute. He did not intend to hit anyone.

He did not recall swerving his truck, and both of his hands were on the steering wheel. [ 95 ] Mr. Harris then went to look at the fire pit. He returned to the firefighters and planned to have a conversation. He apologized if he scared anyone. He got the impression that it was too late for any conversation, and that he could “pound salt.” He went back to bed. [ 96 ] Mrs. Harris later woke Mr. Harris, as the Mounties wanted to speak to him. He went downstairs and opened the door to the porch. He almost walked into one of the police officers, and did not mean to be that close to him.

The Mountie was right at the door. [ 97 ] In cross-examination, Mr. Harris agreed he was upset when he was woken up suddenly after the firefighters had arrived. He did not take the time to put on his glasses because there was a fire truck on his front lawn. He could see down the road as it was twilight. [ 98 ] In cross-examination, Mr. Harris confirmed he only saw dark bodies to the left. He felt it was necessary to get down there quickly, as it was an emergency if a fire truck was involved. [ 99 ] Mr. Harris denied swerving toward three firefighters to his left, and he denied swerving to the right.

He did not see his wife. He may have frozen his turn to the left, and there was a flash to his right. He did not hear anything and his mirror did not move. He stopped because of the firefighters to the left. [ 100 ] In cross-examination, Mr. Harris did not recall questioning the firefighters as to why they were there. He did not hear the tall firefighter say, “You just hit our fucking captain.” [ 101 ] Mr. Harris denied that his apology was directed to Captain Hahn. He never heard the claim that he had struck the Captain. He did not hear that the police had been contacted. He is not hard of hearing. [ 102 ] Mr.

Harris denied being aggressive with the police; he found himself 18 inches from the officer’s face. He did not realize how close the officer was to the door. Mr. Harris said he was calm. THE LAW ON CREDIBILITY AND RELIABILITY

[103] The witness accounts of events on June 26, 2022, conflict to some degree. Mr. Harris testified that he saw no one to his right,whereas certain other witnesses said he was looking right at Captain Hahn when his truck struck the Captain. [104] As a result, this case requires an assessment of the credibility and reliability of a number of witnesses, including the accused andthe complainant. In a case involving credibility, the legal principles in R. v.

W.(D.), (SCC), [1991] 1 SCR 742 and R. v.C.W.H. [1991] 68 CCC [3d] 146 apply. [105] I will enumerate those principles shortly but it is important to bear in mind that R. v. W.(D.) is not a one-size-fits-all magicalincantation, as discussed in R. v. Ryon, 2019 ABCA 36. [106] The fundamental rule is that the burden of proving guilt of the accused is upon the prosecution. Further, the principle ofreasonable doubt applies to issues of credibility as well as fact.

It is not proper to view a decision in this case as an "either/or", choice.The verdict depends not on a stark choice of who was believed, but whether the charge was proven beyond a reasonable doubt. [107] Applying the case law, the analysis in a credibility case such as this one should be as follows: 1. If I believe the Accused's evidence denying guilt (or any other exculpatory evidence to that effect), I must acquit. Even in this firststep, I should consider the exculpatory evidence in the context of the evidence as a whole: see R. v. Dinardo, 2008 SCC 24 ,[2008] 1 S.C.R. 788, para. 23. 2.

If after careful consideration of all the evidence, I am unable to decide whom to believe, I must acquit: see R. v. C.W.H. above. 3. If I do not believe or am having difficulty believing the Accused (or where applicable, other exculpatory evidence) but I am left inreasonable doubt by it, I must acquit. This may occur where I neither accept nor reject exculpatory evidence, but I am unsure whether theevidence is true or false: see R. v. Ryon above, at para. 38. 4.

Even if I am not left in doubt by the evidence of the Accused, I must ask myself whether, on the basis of the evidence which I doaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. In short, mere rejection of the Accused'sevidence or other exculpatory evidence cannot be taken alone as proof of the Accused's guilt. I must assess the evidence I do believe. [108] In paragraph 107 of the case of R. v. Rochemont, 2017 BCSC 930, there is a useful

summary of the many factors to consider inassessing a witness’ credibility and reliability. These factors include internal consistency, consistency with other evidence, corroborationor contradiction, the ability to observe, demeanour, motive, and inherent plausibility. THE LAW ON ASSAULT WITH A WEAPON [109]

Section 267(

a) of the Criminal Code stipulates that every person is guilty of an indictable or

summary conviction offence who, incommitting an assault, carries, uses or threatens to use a weapon or an imitation thereof. An assault under s. 267 incorporates thedefinition of assault in s. 265 of the Criminal Code, which 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 onreasonable 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. [110] As outlined in R. v. Dawydiuk, 2010 BCCA 162, a person commits an assault when without consent he applies force intentionallyto another person, directly or indirectly. The word intentionally simply means not done by accident or through honest mistake. Assaultwith a weapon is a general intent offence. [111] The case of R. v. D.J.W., 2011 BCCA 522, clarifies that the mental element of assault, as defined as “intentionally” in s. 265(1)(a)of the Criminal Code, includes recklessness.

In the Supreme Court of Canada case of R. v.

Barton, 2019 SCC 33, “accident” used in itspopular and ordinary sense means “a mishap or untoward event not expected or designed.” The concept of accident can signal that the actwas involuntary or that the accused did not have the requisite mens rea. [112] Assault with a weapon requires only a “subjective awareness of the prohibited circumstances.” It does not require proof theaccused intended to injure the complainant, hence the accidental nature of the consequences is “legally irrelevant.” Assuming thedefence of accident has an air of reality, the onus is on the Crown to disprove the defence of accident beyond a reasonable doubt. [113] The case of R. v.

Sagmoen, 2021 BCCA 356, provides a good example of an accused charged with striking a complainant frombehind with a quad. The appellate court upheld the trial court’s finding that the accused was fully aware of the circumstances. Based onthe accused’s knowledge of the complainant’s presence and position on the road, the trial court found that the accused drove directly atthe complainant. Of significance, the trial judge found the accused drove at the complainant in a likely state of anger. [114] As stated above, the intention requirement for an assault includes recklessness. Cases such as Sansregret v.

The Queen, (SCC), [1985] 1 SCR 570 have defined what recklessness means. Recklessness involves knowledge of a danger or risk andpersistence in a course of conduct which creates a risk that the prohibited result will occur. The culpability in recklessness is justified byconsciousness of the risk and by proceeding in the face of it. However, where the application of force is the result of carelessness orreflex action, the element of intent is lacking. (See R. v. Starratt, (ON CA), [1971] 5 C.C.C. (2d) 32 (Ont. C.A.)) [115] The defence in this present case argues that if I accept that Mr.

Harris did not see Captain Hahn to his right, he had no intent tostrike him and he was not reckless. It was simply an accident.

[ 116 ] The Crown counters that there is evidence to support the finding, beyond a reasonable doubt, that Mr. Harris meant to swerve at the three firefighters to his left, and that he intended to strike Captain Hahn when he swerved to the right. Certain witnesses saw Mr. Harris looking directly at the Captain before the truck hit him. ANALYSIS [ 117 ] I first must assess the evidence which I am to accept in this case using the W.(D.) analysis described above. [ 118 ] I cannot wholly believe or accept the defence evidence when considered in the context of the evidence as a whole. To begin with, Mr.

Harris described himself in his encounter with the firefighters as only frustrated and excited. His wife described him as simply upset and foggy. According to their evidence, it was Mr. Harris who was berated when he got out of his pickup truck when he first encountered the firefighters. [ 119 ] These descriptions do not accord with any of the other evidence. Captain Hahn described Mr. Harris as aggressive, saying, “What the fuck are you doing here, it’s my property.” Firefighter Ziefflie also said Mr.

Harris aggressively opened his truck door but uttered, “It’s just a brush fire, what’s going on?” The other two firefighters gave similar accounts of Mr. Harris’ aggression at that point. Firefighter Barratt readily admitted that he swore at Mr. Harris, but it was in reaction to seeing his captain being struck. He too said that Mr. Harris came out of his truck rather aggressively. [ 120 ] Even if I were to discount the firefighters’ accounts because they possibly discussed these events over the last year, thereby contaminating their evidence, I note that arresting Officer Mohr described Mr.

Harris as exploding out of his front door, yelling in the officer’s face. [ 121 ] Secondly, Mr. and Mrs. Harris minimized his driving behaviour. Mrs. Harris said her husband drove quickly but not out of control. However, she admits she had to step back when she could see her husband was not stopping. This is telling. Mr. Harris said he was driving quickly and he was excited, but he said he brought the truck to a stop although he may not have followed the curve on the gravel road.

He admitted he may have frozen his turn to the left. [ 122 ] In contrast, the firefighters describe the pickup driving down the hill in a manner that was faster and more aggressive than expected. Captain Hahn said the truck was spraying gravel, and Firefighter Ziefflie described the truck as travelling at a high rate of speed, with gravel spitting out and the front end of the truck lifting up.

All the firefighters saw the pickup truck swerve to the driver’s left towards two or three firefighters and then swerve to the right, at least once, towards Captain Hahn. [ 123 ] Captain Hahn testified that he made eye contact with Mr. Harris in the truck, and Mr. Harris swerved towards him. Captain Hahn had to jump out of the way but was struck by the front quarter panel and then the mirror. I appreciate that Captain Hahn said he locked eyes with Mr. Harris, but that was not in his police statement. However, I note that Firefighter Klenk actually saw Mr.

Harris’ hands turn right to where the Captain was standing. [ 124 ] Thirdly, it is also peculiar that Mr. Harris did not hear Firefighter Barratt swear and say he had struck his captain, or several other utterances in that regard. He simply heard Firefighter Klenk accuse him of purposively swerving. Nor did Mr. Harris hear that the police were contacted. [ 125 ] Firefighter Ziefflie saw Mr. Harris single out Captain Hahn when he made his comment about not wearing his glasses. Mr. Harris said his apology was general in nature and not directed at Captain Hahn. [ 126 ] Mr.

Harris is not hard of hearing, yet his evidence downplayed any confrontation with the firefighters. He seemed to have seen only about two people as he exited his truck, but there were in fact at least five people, including his wife, present. [ 127 ] It is equally perplexing that he did not hear that he had struck Captain Hahn with his truck mirror, although a passenger mirror is some distance from the driver’s seat. [ 128 ] In general, I found that the firefighters and Police Officer Mohr gave their evidence in a straight forward and candid manner.

As alluded to above, the firefighters have worked together for over a year since the incident, and Firefighter Klenk intimated that they have discussed the incident in the past but not at court. However, I found each Crown witness account to be distinctive. Captain Hahn and Firefighter Zeifflie differed in their descriptions of Mr. Harris’ words when coming out of his truck. Firefighter Barratt was candid that he did not see the actual collision with Captain Hahn.

Captain Hahn and Firefighter Ziefflie saw two swerves to the right, whereas the other two firefighters referred to only one swerve to the right. [ 129 ] Also, Firefighter Klenk described Captain Hahn being clipped by the truck mirror, whereas Captain Hahn said he rolled along the quarter panel and was struck more than once. Defence counsel suggested Captain Hahn amplified his contact with the pickup truck, as compared to what he disclosed in his police statement or fire department report. However, when someone is struck by a vehicle, the shock of the event may blur certain details.

Captain Hahn was in the best position to describe what happened to him, as the other firefighters were on the other side of the road, and Mrs. Harris conceded she did not exactly see the truck’s impact on the Captain. I do agree that the photographs revealed not much more than a scuff on Captain Hahn’s left arm. [ 130 ] In closing submissions, defence counsel questioned why Captain Hahn did not get out of the way of the pickup truck when Mrs. Harris stepped back to do so.

My response is that, even if Captain Hahn was not paying full attention to the pickup truck, the case law focusses not on the consequences of the alleged assault or attempted assault but rather the accused’s intent. [ 131 ] Mrs. Harris said that Captain Hahn had a phone in his hand when he was struck, but this was denied by Captain Hahn and no other witness recalled seeing this phone. [ 132 ] The witness accounts differed to some degree about the location of Captain Hahn and Mrs. Harris on the gravel road just prior to the incident.

Captain Hahn said they were both facing uphill with the same proximity to the truck, whereas Mrs. Harris said her feet were

perpendicular to the road. Firefighter Ziefflie said Mrs. Harris was closer to the top of the road. In my view, these discrepancies are minor. What is clear is that Captain Hahn and Mrs. Harris were on the right side of the road and all others were on the left side. Captain Hahn and Mrs. Harris were relatively close to one another when Captain Hahn was struck. [ 133 ] Therefore, under the first part of the W.(D.) analysis, I do not wholly accept the defence evidence, and both Mr. Harris and his wife minimized Mr.

Harris’ aggressive driving and his aggressive behaviour on June 26, 2022. [ 134 ] However, the W.(D.) analysis requires the Court, even if it does not believe the defence or other exculpatory evidence, to determine whether it is left in reasonable doubt by such evidence. [ 135 ] In my view, the defence evidence does raise a reasonable doubt about Mr. Harris’ intention to strike Captain Hahn with his pickup truck. I accept that Mr. Harris was 75 or 76 years old when the incident occurred. He was feeling poorly, had been awoken from a deep sleep and was in a foggy state.

He was alarmed firefighters were on his property, and I have found he was more angry than he portrayed. He drove his pickup truck in that state and without his glasses. [ 136 ] I find that there was still daylight when the incident occurred, and Mr. Harris knew the condition of his gravel road very well. He built and maintained it. He knew about the cross ditches, which may have made his driving appear more erratic than actually was the case. [ 137 ] However, Mr. Harris said he saw people on his left, which would include the three firefighters, and he did not see anyone to his right.

Based on Captain Hahn and Firefighter Klenk’s evidence, Mr. Harris turned to the right and was looking at the Captain. Nevertheless, it is of significance that Mr. Harris did not have his glasses on and he said he saw nothing to the right. [ 138 ] I am left in a reasonable doubt about Mr. Harris’ intention for two other reasons. First, and most importantly, Mr. Harris drove directly to an area occupied by not only Captain Hahn, but also his wife. I doubt Mr. Harris intended to endanger his wife. [ 139 ] Secondly, other than Mr. Klenk, no witness heard Mr.

Harris say he had knowledge that he had struck the Captain. He simply made a general apology and made no inquiries about Captain Hahn’s well-being. Mr. Ziefflie heard Mr. Harris make a more specific apology with reference to not wearing glasses, but again, no acknowledgement that he struck anyone. Mr. Klenk heard Mr. Harris say something to the effect that Captain Hahn would be okay, but he could not recall the exact words spoken. Mr. Harris in fact went back to sleep right after the incident. Although Mr.

Harris could have been playing dumb, his reaction leaves me in reasonable doubt about his intention to strike Captain Hahn with his truck. [ 140 ] Although it is a close call, I also do not find that Mr. Harris was reckless on June 26, 2022. Based on his evidence, Mr. Harris did not have the requisite subjective knowledge of the risk to Captain Hahn because he saw no one to his right.

Although I have discounted his evidence, I again note that he was driving without his glasses and without his shirt, and this was understandable given that he thought there was an emergency due to the presence of the fire truck and firefighters. His driving appeared to be too fast and erratic but his truck was going over cross ditches. I infer that he was more than upset, but I cannot find that he intended to strike Captain Hahn or was aware of the risk in that regard. [ 141 ] I realize Mr.

Harris first swerved to the three firefighters to his left, but he missed them by five feet according to firefighter Barratt. It is possible Mr. Harris may have frozen in his turn. I cannot definitively infer that he meant to intimidate the firefighters, although that is one reasonable inference to be drawn. [ 142 ] I want to be clear about this. Although I have a reasonable doubt about Mr. Harris’ intent, I nevertheless found his driving to be very careless given that he appreciated that there were people down the hill near the gravel road.

He was also unnecessarily abrasive with both the firefighters and the police. [ 143 ] Mr. Harris, please stand up. You are acquitted of the assault using a weapon charge. ____________________________ The Honourable Judge G.J. Brown Provincial Court of British Columbia