R. v. Loo Date:, 2016 BCPC 408

Citation: R. v. Loo Date: 20161216 2016 BCPC 408 File No: 93646-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GRIZZLY GUS CHRISTOPHER LOO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: J. Fogel Counsel for the Accused: C. Elden Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 7, 2016 Date of Judgment: December 16, 2016

INTRODUCTION [1] Under Information 93646-1, the accused, Grizzly Gus Christopher Loo (“Mr. Loo”), faces a charge of assault causing bodilyharm. The named complainant is Shane Harold Davidson (“Mr. Davidson”), the alleged offence date is January 17, 2015 and thelocation where the offence is alleged to have been committed is Maple Ridge, B.C. Mr. Loo entered his not guilty charge to the singlecount on Information 93646-1 on April 28, 2015. These are my Reasons for Judgment resulting from the trial of that charge. [2] Both Mr. Loo and Mr.

Davidson were inmates at Fraser Regional Correctional Centre (“FRCC”) at the time of the allegedassault. I do not understand there to be controversy as between Crown and defence as to proof of jurisdiction or identification, or as toproof of the fact that Mr. Loo and Mr. Davidson had a physical altercation on the alleged offence date and that Mr. Davidson sufferedbodily harm, namely, a broken jaw, in the course of it. Rather, what is controversial is the nature of that altercation and, in particular,whether in the course of it Mr. Loo, in applying non-consensual force to Mr.

Davidson, acted in self-defence. [3] Mr. Loo and Mr. Davidson give dramatically differing and irreconcilable accounts in their testimony of the subject altercation— an altercation to which they, alone, were witnesses. Accordingly, this prosecution necessarily has required the court to perform acredibility assessment which will lie at the centre of the ultimate disposition of the charge against Mr. Loo. THE LAW CONCERNING CREDIBILITY [4] The law concerning the determination of credibility in cases, like the present case, where an accused calls defence evidence iswell settled.

It is defined in the protocol set out by the Supreme Court of Canada in R. v. W.D., (SCC), [1991] 1 S.C.R.742 as augmented by the B.C. Court of Appeal in R. v. H.(C.W.), (1991), (BC CA), 68 C.C.C. (3d) 146 (C.A.). Applying that protocol to the case at bar: (

a) If I believe the exculpatory evidence of Mr. Loo (the only defence witness), I must acquit him; (

b) If, after a consideration of all of the evidence I am unable to decide whether to believe the exculpatory evidence of Mr. Loo orMr. Davidson (the only Crown witness), I must acquit Mr. Loo; (

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

d) Even if I am not left in reasonable doubt by the exculpatory evidence of Mr. Loo, I must ask myself — on the basis of theevidence I do accept — whether I am convinced beyond a reasonable doubt by that evidence of his guilt. THE LAW CONCERNING SELF-DEFENCE [5] As can be seen, Mr. Loo elected to call defence evidence by testifying on his own behalf. He was the only defence witness totestify. In argument he invokes the provisions of s. 34 of the Criminal Code. That

section provides as follows: “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 madeagainst 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 thatuse 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 ofthe 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 offorce; (

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 andthe 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.” [6] Citing mainly his own testimony in support, Mr. Loo submits that, in striking Mr. Davidson, he acted to prevent himself from

being struck further and harmed by Mr. Davidson (who, he says, attacked him first). If, as Mr. Loo contends, he was attacked first byMr. Davidson and his impugned actions were reasonable and performed in self-defence, then the blow that he administered to Mr.Davidson will not have been unlawful and will therefore not attract criminal liability for assault causing bodily harm. As Dhillon, P.C.J.stated at para. 53 of R. v. Urquhart, 2013 BCPC 184 , [2013] B.C.J. No. 1569 (Prov. Ct.), it is the Crown’s onus to “showbeyond a reasonable doubt that self-defence does not apply” (emphasis added). MR.

DAVIDSON’S VERSION OF THE ALTERCATION (IN CHIEF) [7] Mr. Davidson’s testimony in chief regarding the altercation that occurred between him and Mr. Loo during the evening ofJanuary 17, 2015, and its aftermath, included the following, key factual assertions: (

a) Mr. Davidson was the only inmate assigned to his first floor cell on Unit 2C at FRCC; (

b) At about 8:30 p.m. he was alone in his cell and had decided to brush his teeth before retiring for the night; (

c) He began brushing his teeth at a sink located about four feet away from the door to his cell. That door was as close to beingfully closed as it could be without the latch having engaged; (

d) As Mr. Davidson was brushing his teeth, Mr. Loo came into his cell and passed behind him. He did not say anything; nor did heappear to be intoxicated or carrying anything; (

e) Mr. Davidson turned toward Mr. Loo as he entered and acknowledged him by saying “Hi” or “Hey.” Mr. Loo did not return thegreeting; (

f) Mr. Davidson then turned back toward the sink and continued brushing his teeth; (

g) About two seconds later, Mr. Davidson was struck from behind on the right side of his jaw and fell, dazed, to the ground; (

h) Mr. Loo then said to Mr. Davidson “Get the fuck off this unit. If you don’t, I’ll send the boys after you” or words to that effect; (

i) Mr. Loo then left Mr. Davidson’s cell while he (Mr. Davidson) was still on the floor; (

j) After Mr. Loo left, Mr. Davidson got back up, finished brushing his teeth and went to bed; (

k) Mr. Davidson “assumed” that Mr. Loo punched him in the jaw, given that there was no one else present in his cell who couldhave administered the blow; (

l) Mr. Davidson was and remains unable to link Mr. Loo’s words telling him to get off the unit to any previous conflict betweenthem; (

m) Mr. Davidson at first believed that he had not been seriously injured. However, he could not sleep due to the pain in his jawand so he asked to see a doctor the next morning; (

n) The doctor who saw Mr. Davidson the next morning told him he thought his jaw was broken and considered that a consultationwith a doctor “downtown” Vancouver was warranted; (

o) Several hours later Mr. Davidson was taken to a second doctor “downtown” who confirmed that his right jaw was broken in twoplaces (i.e., there was a fracture on the side accompanied by a midline chip); (

p) Mr. Davidson was subsequently sent to Lion’s Gate Hospital for day surgery to repair the damage to his jaw; (

q) There were complications, including an infection, following the initial surgery, which required more surgery; (

r) Ultimately, Mr. Davidson had three metal plates affixed by screws, surgically, to his jaw. They were later removed; and (

s) After almost a year Mr. Davidson was fully recovered from his jaw injury. MR. LOO’S VERSION OF THE ALTERCATION (IN CHIEF) [8] Mr. Loo’s testimony in chief regarding the altercation that occurred between him and Mr. Davidson during the evening ofJanuary 17, 2015 differed dramatically, as noted, from the version given by Mr. Davidson. Mr. Loo’s account included the following,key factual assertions: (

a) Mr. Loo’s cell was located on the second floor of Unit 2C; (

b) Mr. Loo recalled having seen Mr. Davidson on Unit 2C at FRCC before January 17th but they were, at most, acquaintances whohad neither interacted nor spoken with one another; (

c) On the night of the subject altercation, Mr. Loo and some other inmates were cooking dinner on the first floor of Unit 2C; (

d) In the course of doing that cooking he felt the urge to urinate; (

e) Mr. Loo entered Mr. Davidson’s cell — the one he thought was nearest to where he was cooking — for the purpose of doing so; (

f) Mr. Loo knew that entering another inmate’s cell in that way constituted a breach of FRCC rules, but it was a common practice

that seldom, if ever, drew disciplinary consequences and, in any event, he considered himself justified in

part in using another inmate’s cell to relieve himself because he was cooking for others in the Unit; (

g) When he entered Mr. Davidson’s cell, the lights were off and he didn’t think anyone was in it; (

h) After entering Mr. Davidson’s cell, he proceeded to the toilet and began to urinate, having no awareness at that point that there was anyone else in the cell; (

i) As he did so, he was facing toward the bed and away from the sink; (

j) About halfway through urinating, Mr. Davidson punched him with a closed fist, twice, on the left side of his face in the cheek area. Until that happened, he believed he was in the cell alone; (

k) Mr. Davidson did not say anything to Mr. Loo before or after he administered the punches to him; (

l) Immediately after being struck by the punches thrown by Mr. Davidson, Mr. Loo swung around “instinctively” in a clockwise direction with his elbows up and one of his elbows made contact with Mr. Davidson’s face; (

m) Mr. Davidson fell to the ground after being struck in the face by Mr. Loo’s elbow; (

n) Mr. Loo then asked Mr. Davidson “Are you done?” in order to make sure the encounter was over. Mr. Davidson remained on the floor and did not reply and so Mr. Loo then left the cell to return to his cooking; (

o) Mr. Loo’s intention when he swung around with his elbow was to get the situation under control and avoid any more punches being thrown at him by Mr. Davidson; (

p) Mr. Loo came away from the altercation with a sore face but no bruising; and (

q) Mr. Loo has had no further interactions with Mr. Davidson. EFFECTS OF CROSS-EXAMINATION [ 9 ] Neither Mr. Davidson’s testimony, nor that of the accused Mr. Loo, emerged wholly intact following cross-examination. I summarise the effects of the cross-examinations of both witnesses below. Mr. Davidson [ 10 ] Ms. Elden, counsel for Mr. Loo, was able to show that Mr. Davidson’s memory for detail was less than perfect. For example, in statements he gave not long after the subject altercation, Mr.

Davidson said that he reported the assault a few days after it occurred, and not the next day as he had said in chief, allowing that his police statement on that point could be correct. Mr. Davidson also agreed that, upon entering his cell, Mr. Loo pulled the door shut sufficiently to engage the latch — a not unimportant detail that did not arise in his evidence in chief. [ 11 ] Mr. Davidson rejected Ms. Elden’s suggestion to him, during cross-examination, that the lights were off in his cell at the time of the altercation, saying that cell lights can only be dimmed and not shut off altogether.

However, she put to him the statement he gave to police in which he said that the lights in his cell were off at the relevant time. [ 12 ] Mr. Davidson agreed with Ms. Elden when she suggested that in his first interactions with corrections officers and a doctor at FRCC, he made no mention of having been assaulted. He explained this by saying that at first he didn’t think his injury was serious and that he simply followed the “code” among inmates that leads them to desist from reporting non-serious instances of aggression.

He further explained that when he came to realise that the “sucker punch” he had experienced at the hands of Mr. Loo had broken his jaw, he considered that to be a serious enough incident and outcome to warrant a report and so he made one. [ 13 ] When questioned about having commenced civil proceedings in relation to the alleged assault by Mr. Loo, Mr. Davidson first disavowed any such notion; however, when pressed, he admitted that he had consulted with a lawyer and sought advice about possibly bringing action against the institution to seek damages for lost wages. Ms.

Elden was also able to show some differences between the accounts given by Mr. Davidson at different times of what Mr. Loo allegedly said to him after committing the assault — sometimes saying that Mr. Loo had told him that “the boys” were the ones who were going to “fuck [him] up” if he didn’t get off the unit, and sometimes saying that Mr. Loo said that he (Mr. Loo) was going to “fuck [Mr. Davidson] up” if he didn’t get off the unit. Mr. Loo [ 14 ] Mr. Fogel, counsel for the Crown, suggested to Mr.

Loo during cross-examination that — contrary to what he said in his evidence-in-chief — the cell he chose to visit so he could urinate was not the nearest one to where he was working when he was cooking dinner. Mr. Loo was unwilling to yield to that suggestion and so part of Exhibit 2 — a video recording of events in the public part of Unit C2 — was replayed that showed clearly that not only was there a cell he could have chosen that was nearer, but that that cell’s door was wide open. Mr.

Loo could not offer any coherent reason why he would choose to go to a more distant cell with a closed door to urinate when a nearer one with an open door was available to him. [ 15 ] Mr. Loo agreed with Mr. Fogel that he didn’t really know any of the inmates whose cells were located on the first floor of Unit 2C and that the inmates he was cooking for came from the upper (second) floor. I agree with Mr. Fogel that this makes Mr. Loo’s choice of Mr. Davidson’s cell (with its closed door) as the place he would relieve himself harder to fathom if, as he says, his only purpose was to relieve himself. [ 16 ] Mr.

Fogel suggested to Mr. Loo that if the altercation occurred as he had described it in chief — where the infraction began

when Mr. Loo was in the middle of urinating into the toilet — urine should have ended up in the cell elsewhere, in places other than inthe toilet, and also on Mr. Loo’s own clothing. Mr. Loo could not recall noting anything of that kind; neither was there any otherevidence that urine was sprayed about within Mr. Davidson’s cell after the altercation. [17] Lastly, Mr. Fogel was able to bring Mr. Loo to agree that after he drew no response from Mr. Davidson to his question, “Areyou done?”, he turned his back on Mr.

Davidson — who was still lying on the floor — and walked out of the cell, exposing himself tothe risk of retaliation while Mr. Davidson was out of Mr. Loo’s field of vision. Mr. Loo held firm to his contention that, despite the riskidentified in Mr. Fogel’s questioning, he felt secure in turning his back on the man who had punched him twice, and who he had knockedto the floor with his elbow, and leaving the cell without keeping him under observation while doing so. ANALYSIS [18] Both accounts of what transpired in Mr. Davidson’s cell during the evening of January 17, 2015, are problematical.

As can beseen from the foregoing, neither Mr. Davidson nor Mr. Loo were perfectly reliable in their recollections of events and both were shown,during cross-examination, to be inclined to cling to accounts that were congenial to their individual interests. That said, neither accountcan be described as being so unredeemably fanciful as to be “beyond the pale”. [19] Chief among my concerns about the evidence of Mr. Davidson was his testimony that when Mr. Loo entered his cell, unbidden,closed the door tight and then passed behind him, he did nothing more than say “Hi” or “Hey”. On Mr.

Davidson’s own account, he andMr. Loo were near to complete strangers and, yet, when Mr. Loo entered his private space, against FRCC Rules, without being invited orasking permission to come in, he was firm that his only reaction was to say “Hi” or “Hey” and then turn back to brushing his teeth. Thatreaction put Mr. Loo entirely outside Mr. Davidson’s visual field, creating vulnerability—the kind of avoidable vulnerability that onewould not expect an inmate in a correctional centre to self-impose in such a blasé way when he (Mr.

Davidson) had no idea as to whatthe near stranger intended to do once he was inside his cell with the door closed tight. [20] Chief among my concerns about the evidence of Mr. Loo is his testimony that, faced with the alternatives of urinating in hisown cell on the upper floor of Unit C, or urinating in the cell on the lower floor that had an open door and was nearest to where he wasworking, or urinating in the cell belonging to Mr. Davidson which was farther away and had a closed door, Mr. Loo chose to urinate inMr. Davidson’s cell. It also seems improbable that, even if the lights were down low as he said, Mr.

Loo could have entered into Mr.Davidson’s cell and past Mr. Davidson, and started to urinate, all the while being wholly unaware of Mr. Davidson’s presence up to thepoint when he was punched, twice in the face from behind. [21] Both peculiar aspects of the evidence given by the only witnesses to the subject altercation lack 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 (C.A.) at 357.

I am aware that Faryna is a civil casebut 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. [22] The question before the court, however, is whether — with all its infirmities — the evidence led by the Crown at the trial ofMr. Loo’s charge of assaulting Mr. Davidson and causing him bodily harm, viewed in the context of Mr. Loo’s defence evidence, issufficient to: (

a) Prove Mr. Loo’s guilt of committing the offence of assault causing bodily harm to Mr. Davidson beyond a reasonable doubt; and (

b) Prove “beyond a reasonable doubt that that self-defence does not apply” to relieve Mr. Loo of criminal liability for striking Mr.Davidson, per Dhillon P.C.J. in Urquhart, supra with respect to s. 34 of the Criminal Code. [23] As I have noted, there are aspects of Mr. Loo’s testimony, offered in his own defence, that seem counter-intuitive and unworthyof belief. But the case he has to meet at the instance of the Crown suffers for the comparable weaknesses I have identified in theevidence of Mr. Davidson. [24] While, for the reasons I have given, I cannot say that I wholly accept either Mr. Davidson or Mr.

Loo’s versions of the subjectaltercation, neither can I reject Mr. Loo’s exculpatory version altogether. It is, in other words, an account of the events in issue that I amunable wholly to dismiss. Thus, I find myself left with a residue of reasonable doubt about Mr. Loo’s guilt after considering the defenceevidence he gave on his own behalf, even with its manifest infirmities. [25] Moreover, to track the requirements of s. 34 of the Criminal Code, and applying the approach to that

section in Urquhart, inorder for Mr. Loo to be deprived of the benefit of the self-defence defence, the Crown must prove beyond a reasonable doubt that: (

a) Mr. Loo did not have a reasonable belief at the material time that Mr. Davidson had used force against him; (

b) Mr. Loo did not elbow Mr. Davidson for the purpose of defending himself against the continued use of force, by Mr. Davidson,against him; and (

c) Having regard to all of the factors in s. 34(2), Mr. Loo did not act reasonably in all the circumstances. [26] Here again, despite its many weaknesses and implausible aspects, Mr. Loo’s evidence leaves me unable to reject his account ofthe subject altercation altogether. I am unable, therefore, to find beyond a reasonable doubt that, the defence of self-defence does notapply in his favour. [27] As should be plain, this case — in which credibility is an issue of central importance — falls to be decided on the third elementin the four part R. v.

W.D. formulation summarised in para. 4 of these reasons, namely, “If I do not believe the exculpatory evidence ofMr. Loo but am left in reasonable doubt by it, I must acquit him”.

DISPOSITION [ 28 ] Based upon all of the foregoing, I find Mr. Loo not guilty of the offence of assault causing bodily harm referred to in count 1 of Information 93646-1. [ 29 ] Order accordingly. _______________________ Thomas S. Woods, P.C.J.