R. v. Grybos Date:, 2015 BCPC 339

Citation: R. v. Grybos Date: 20151130 2015 BCPC 0339 File No: 99566-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSEPH ANTHONY GRYBOS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. Evan Goulet Counsel for the Accused: Mr. Kenneth Tessovitch Place of Hearing: Kamloops , B.C. Date of Hearing: November 13, 2015 Date of Judgment: November 30, 2015

[ 1 ] Mr. Grybos is charged with the assault of Tanya Thomas. Ms. Thomas and Mr. Grybos were in a romantic relationship which had been on and off for about three years. [ 2 ] On June 29 and 30, 2015, Ms. Thomas was living in Cherry Creek at Mr. Grybos’ trailer. She was working from time to time as a chamber maid in Kamloops. On June 29, Ms. Thomas was at her mother’s house in Kamloops. Mr. Grybos was working out at Barriere Lake where he works every summer. He had returned to town and came to pick up Ms. Thomas with some friends. Ms. Thomas said that Mr.

Grybos asked if she would like to go with them to which she agreed. Mr. Grybos claimed that Ms. Thomas called him distraught because she had been “jumped” at Riverside Park by a bunch of First Nations people. [ 3 ] Ms. Thomas said that when she got into the car she could tell Mr. Grybos and his two friends had been drinking. Everyone was in good spirits. There was alcohol in the vehicle. She did not see Mr. Grybos drinking in the car, but said that she knew when people had been drinking. Mr. Grybos denied that anyone was drinking in the car.

The plan was to pick up some alcohol on the way out of Kamloops, return to Mr. Grybos’ trailer and drink there. Ms. Thomas said she did not get out at the beer and wine store. She knew there were going to be problems because of the way Mr. Grybos was talking to her. She said it was not so much the things he said in the back of the car but his mannerism that indicated to her he was angry with her about something. [ 4 ] Ms. Thomas said everyone at the trailer was having fun. Eventually the other two people left. Mr. Grybos and Ms. Thomas were not getting along. Ms.

Thomas was not very particular about what the contentious issues were. Mr. Grybos said he was angry because she had not paid rent for three months and he was facing eviction. There was a dispute in their testimony about whether she was supposed to be paying the rent while he was away at Barriere Lake. [ 5 ] In any event, Ms. Thomas said that arguments kept coming up. She said she was doing her best not to make things confrontational. There were not many places she could go from the trailer. She said the arguing went on for hours.

She would try to go to sleep or watch a movie to deflect the “negative energy” so that things would not “get out of hand”. She said Mr. Grybos kept asking her the same questions over and over. She conceded that because they had been drinking, it was not a usual conversation but an intoxicated conversation. She said it went around and around for hours. [ 6 ] Ms. Thomas had difficulty recollecting certain aspects of the event because she said she had pushed the incident in the back of her memory. She had no desire to recall the events. She did recall that Mr. Grybos became belligerent.

She said she felt everyone was being a bit dramatic and this escalated once she and Mr. Grybos were alone. She acknowledged that she was intoxicated at one point and did continue to drink in the early hours of the morning when she was unable to sleep. [ 7 ] At one point in the argument, she said Mr. Grybos began poking and jabbing at her. He slapped her and backhanded her. As time progressed, this escalated. Ms. Thomas said Mr. Grybos was poking and jabbing her in the face and body. He would ask her a question or say something and jab her at the same time.

She said it was not a friendly poke but a jab and it hurt. [ 8 ] She cannot remember what she was doing when Mr. Grybos slapped her, but they were in the trailer. At one point, she was trying to grab the telephone to make a telephone call. Things were getting heated at this point. It was not her intention to call the police but to call for a cab or her sister. Mr. Grybos decided that it was his telephone because he paid the bills. He slapped her in the face. She said he slapped her hard enough to make a bruise. Pictures were submitted at trial. There is no bruising on Ms. Thomas’ face. It is swollen from crying.

However, she is depicted in those photographs with a cut lip and blood on her chin. [ 9 ] Ms. Thomas was not very specific about where the arguing was going on. It seems to have gone on over the space of at least 16 and perhaps as long as 24 hours. She said Mr. Grybos backhanded her and slapped her in the head and face while in various rooms in the trailer. Finally, Ms. Thomas tried to leave. She said Mr. Grybos pushed her by the back of her head into the mud. At this point, she got up and ran to the neighbour. She called the police from there. [ 10 ] Ms. Thomas agreed that she probably hit Mr. Grybos as well.

She said she fought back when she could and hit him because she was scared. Mr. Grybos hit her first. He also punched her in the chest. The photographs produced at trial show some significant bruises in her chest and shoulder area. She believed she got the bruise on her shoulder from being pushed into the wall of the trailer. She said it happened a number of times and it hurt. [ 11 ] Ms. Thomas said that she called the police as soon as she got to the neighbour’s trailer and the police arrived within 20 minutes. Constable Brocklebank testified that he arrived around 9:00 p.m. When he arrived, Ms.

Thomas had fresh blood on her chin and was distraught. He took various photos of her bruises on her chest, arm, shoulder, legs and face. She had a cut lip, which was also swelling. [ 12 ] While Ms. Thomas’ evidence was not particularly focused because of her distress during her direct examination, she became quite forceful and determined in cross examination. She remained unshaken in her evidence. The areas of greatest confusion were with respect to the argument and what Mr. Grybos had been doing during the summer. She could not recall that he not been around for a few weeks.

She denied that he had permitted her to live at his trailer while he was away, saying that she was residing there anyway. She was not paying rent and had not made any agreement to do so. She denied the argument was about paying rent. However, she conceded that at one point during the argument he was upset that his money was missing. Mr. Grybos said he had left $1,100 on the table to pay the outstanding rent and it was gone. Ms. Thomas did not recall that he had accused her of taking it. She only remembered him being upset that it was missing. Mr.

Grybos believed that she had stolen it and testified that he was demanding her to give it back. [ 13 ] It is true that Ms. Thomas cannot remember how each bruise occurred during the course of this lengthy on and off argument and physical altercation. That is not surprising. Given the intoxication and the distress, I would be surprised and suspicious if she could remember how each of these several bruises happened. [ 14 ] There also seemed to be some blank spots in her recollection. It was suggested to her in cross examination that Mr. Grybos went out at some point to visit neighbours; and to pay the rent. Ms.

Thomas did not remember him going out to see the neighbours but did recall he had gone out to pay the rent at one point. She said that is where the police found him after she called them.

[ 15 ] Ms. Thomas denied that Mr. Grybos evicted her and physically removed her from the trailer. Even if this were true, she is not a tenant but a co-resident. He would have no right to remove her in that manner regardless. [ 16 ] Mr. Grybos acknowledged that he followed Ms. Thomas to the neighbours. He said it was to get his money back. She denied that. She said he followed her calling her vulgar names. The neighbour kicked him out. [ 17 ] In cross examination, Ms. Thomas did remember Mr. Grybos leaving to get some beer. At that point, she was sitting on the porch with the neighbour who was consoling her.

She had asked the neighbour for a ride and was going to get one. The evidence becomes quite confused about how it was she remained at the trailer. She also denied going to the neighbours until she was pointed to the reference in her police statement. She said that it was when she returned to Mr. Grybos’ trailer that he grabbed her and began to demand where his money was. [ 18 ] Constable Brocklebank said that he could smell the odour of liquor on Mr. Grybos after he arrested him. He said Mr. Grybos was polite and cooperative with only a slight slur to his speech.

He showed signs that he had been drinking but was not intoxicated. On the way back to the detachment, Mr. Grybos repeated over and over that he was a good guy; the police were not going to believe him; he did not assault Ms. Thomas; she fell; and she stole a $1,000. Constable Brocklebank noted fresh scratches on Mr. Grybos’ back, along with bruising on his neck, and above his eye. Mr. Grybos refused to tell Cst. Brocklebank where he got those from. [ 19 ] Mr. Grybos was a difficult witness to follow.

He was understandably nervous but his testimony was disjointed and rambling. [ 20 ] He testified that he owns the trailer in Cherry Creek but pays pad rent. He works every summer at East Barriere Lake for the same chartered accountant. He had been working at East Barriere Lake during the summer. Mr. Grybos acknowledged that Ms. Thomas stayed at his place from time to time over the years. He said they agreed that once she got her welfare cheque she would pay the $375 pad rent and he would pay the rest of the costs. He said she made one payment.

The amount of the pad rent varied in his testimony between $353 and $375. The number of outstanding payments also varied between two and three. [ 21 ] Mr. Grybos said that on June 29 he had some friends come in. He picked up Ms. Thomas saying that she was upset that she had been jumped at Riverside. He was upset with her that she had not paid the rent. He told her at that time that he would pay the money from work and she would pay him back. This is the most peculiar conversation. It seems to me that if Ms.

Thomas was distraught over being assaulted at Riverside and had the bruises that were depicted in the photographs, the conversation would not have been focused on the unpaid rent. [ 22 ] Mr. Grybos said she was very bruised when he picked her up with red marks. There was less colour in the bruises at that time. [ 23 ] Mr. Grybos said he went to the trailer with his two friends and Ms. Thomas. They had a few beers and everything was fine. He said he did not remember arguing that whole night but was not sure. After the friends left, they had some drinks, watched some television and then he tried to pay the rent.

Because the landlord was not home, he gave up and put the money on the counter. He then went to bed but does not know what time that was. [ 24 ] Mr. Grybos changed his testimony and said that they did have an ongoing argument. Ms. Thomas would get up, have a beer, sit in the living room and then come back to back to bed. It was unclear whether he was describing a cycle of argument that went through the whole night. [ 25 ] Mr. Grybos said he tried again to pay the landlord around 9 or 10 in the morning but the landlord was still not there.

He was urgent about paying the rent because he had been served with an eviction notice. He said he returned to the trailer and put the money on the counter. He confronted Ms. Thomas about the unpaid rent. He then took a beer and went to lie down on the couch. This was about 10 in the morning. When he asked Ms. Thomas about the rent, she said she did not have the money to pay it. He said that when he was away she told him she had paid the rent. He said he did not know they were three months behind. This was confusing since he testified he was upset about the unpaid rent when he picked up Ms.

Thomas in Kamloops. [ 26 ] Mr. Grybos said that it was at this point he told Ms. Thomas she was evicted. She came behind him and hit him twice in the face. He told her to get out. He said she hit him in the chest, neck and face. He grabbed her wrists, took her to the door, opened it and told her to get out. She started hitting him again so he grabbed her wrists and threw her out. He said she was very drunk and cited the eight beer she claimed to have been drinking.

He said she tripped down the stairs herself, stumbled and face planted in the mud. [ 27 ] There is an unanswered discrepancy about the consumption of alcohol as well. Ms. Thomas acknowledged that she had drunk 8 beer during the period of time that was either 16 or 24 hours. Mr. Grybos said he only bought 15 beer. Ms. Thomas said that she did not go into the beer and wine store. This would leave 7 beer for Mr. Grybos to consume. He said he was feeling the alcohol but was not intoxicated. He is 6’4” weighing 220 pounds. At this point, Mr.

Grybos also trailed off into some evidence about whether or not he may or may not have been taking Percocet because of an injury that may or may not have been around that time. [ 28 ] It was not until Mr. Grybos went back into the trailer that he discovered the money was gone. He went outside to confront Ms. Thomas, at which point she was at the neighbour’s. He said she took his phone. His evidence at this point strayed into some insensible evidence about his telephone. He went to talk to the neighbour but the neighbour told him to leave. [ 29 ] Mr.

Grybos acknowledged that they were arguing but he could not remember what it was over. He said it was petty things. He said it was a long time ago and he was injured and had a lot going on. He said he had been jumped outside the casino which had been a traumatizing experience that lasted awhile for him. He does not know whether that affected his memory. He again rambled about whether or not he was taking Percocet and whether that would have affected his memory at the time as well. He decided that the argument was about her making fun of his scars and making fun of his face. [ 30 ] Mr.

Grybos acknowledged that there were times that Ms. Thomas wanted to get away from the arguing but he said it was because she finished her beer and needed another one. Then he acknowledged that it could have been for both reasons. In cross examination, he could not recall saying that she had wanted to get away from the arguing but then said maybe he had said that.

[ 31 ] Mr. Grybos was clear that the $1,100 was on the table the whole night. At first he said it was while they were arguing. Then he said they were not arguing the whole time. He did not see Ms. Thomas take the money but there were only two people there and he did not have it. [ 32 ] Mr. Grybos acknowledged that when Ms. Thomas hit him while he was on the couch, he grabbed her wrists and pushed her. She fell on the kitchen floor on her back. He said, though, that she just fell that way. He acknowledged that he threw her again when he told her to leave. However, she did not fall on that occasion.

He said when she lost her balance on the deck, she tripped and fell down the creaky stairs. He said that he had tripped down them before as well. [ 33 ] In cross examination, Mr. Grybos also testified that the reason they were arguing was because she was bruised and swollen but would not tell him what happened. This would not seem petty. She only told him vaguely that she had been jumped at Riverside. He wanted to know who had done it. He figured she would know because she is native and they were native.

However, when he was arrested for assaulting her that evening, he told the police that she fell, not that she had been jumped by native people. He stammered and stumbled his way through his evidence about this discrepancy but never did come up with an explanation for it. [ 34 ] I agree with Mr. Tessovitch that Ms. Thomas was confrontational with him. She was defiant and would often resort to saying that she could not recall something. She said this was because she had blocked out the memory and did not want to recall it.

It was clear that she did not want to be testifying and was quite distraught when she was in court. That she cannot remember the number of times she was punched is entirely irrelevant. I would not expect any victim suffering this many bruises to remember how many blows were landed upon her. She was belligerent when she counted the bruises she could see in the photographs but only after being pressed about why she could not remember how many times she had been hit and jabbed, or where. [ 35 ] I also agree with Mr. Tessovitch that the bruises on Ms. Thomas’ legs are not fully accounted for by her evidence. By Mr.

Grybos’ testimony, she was thrown down once in the trailer, thrown out onto the balcony and then, according to Mr. Grybos, she fell down the stairs. That evidence would account for the bruises on her legs. I do not agree with Mr. Tessovitch that Ms. Thomas’ evidence was evasive. [ 36 ] Ms. Thomas rejected the suggested that she had been “jumped” at Riverside. I believe her evidence. Mr. Grybos’ evidence stretched credulity and I do not accept it. [ 37 ] The Defence theory in cross examination was that there was an argument about Ms. Thomas not paying the rent. Ms.

Thomas denied that she was supposed to pay the rent. The truth may lie in there somewhere with Mr. Grybos’ understanding that she would pay the rent once she got her welfare cheque. However, Mr. Grybos acknowledges that the arguing was not so much about the rent as it was about who had jumped Ms. Thomas at Riverside, her making fun of the scars on his face, and other petty things he could not recall. [ 38 ] Despite the discrepancy in some of her evidence and what are clearly gaps in her recollection due in part to the passage of time, the distress of the event and the intoxication, I found that Ms.

Thomas was largely a credible witness. I do not believe that she assaulted Mr. Grybos. His evidence was disjointed, unpersuasive and not credible. I accept Ms. Thomas’ evidence that she struck back at Mr. Grybos in self-defence. I believe her evidence that he jabbed her, slapped her, backhanded her, punched her and threw her out of the trailer into the mud. I do not find it incongruous that she did not leave on any of the opportunities that she may have had to go. She was residing with Mr. Grybos. She had nowhere else that she could go immediately.

It was only after she was thrown in the mud while trying to escape the trailer that Ms. Thomas finally left. [ 39 ] With respect to the suggestion that Ms. Thomas had told Mr. Grybos she was jumped at Riverside Park, I find this evidence entirely unbelievable. Such an assault would have had to happen at least 24 hours, and probably considerably more, before the police took the photographs of her. In the photographs, she has a freshly cut lip, blood on her face, swollen eyes and fresh bruises all over her body. I find that Mr.

Grybos concocted the story about Riverside Park in an attempt to explain away the injuries he did to her. [ 40 ] I am satisfied that the Crown has proved its case beyond a reasonable doubt and I convict Mr. Grybos. ______________________________ S.D. Frame Provincial Court Judge