IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           It is alleged in count 1 of Port Coquitlam Information No. 90522-3KC that on July 13, 2013, the accused Michael Yanish (“Mr. Yanish”) assaulted Shaun Ross Skerratt (“Mr. Skerratt”).  Count 2 on the Information charges Mr. Yanish with possession of a knife for a purpose dangerous to the public peace, but that charge was stayed at the commencement of trial.  The Crown thus proceeds against Mr. Yanish on the assault charge only.

[2]           That Mr. Yanish punched Mr. Skerratt in the face and head three or four times on the offence date, leaving him bleeding, badly bruised and swollen and with a lacerated nose, multiple fractures to his facial bones and a broken jaw is not in dispute.  Indeed, it is conceded by Mr. Yanish via his counsel that his actions constituted the intentional application of force to a complainant without the complainant’s consent that is contemplated by the definition of assault found in s. 265(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”).  Rather, what is in controversy is whether that assaultive behaviour was unlawful.

[3]           Mr. Yanish elected to call defence evidence by testifying on his own behalf.  He was the only defence witness.  In argument he invokes the recently amended provisions of s. 34 of the Code.  That section provides as follows:

[4]           Citing mainly his own testimony in support, Mr. Yanish submits that, in striking Mr. Skerratt, he acted to prevent himself from being struck and harmed.  If, as Mr. Yanish contends, his impugned actions were reasonable and performed in self-defence, then the blows that he administered to Mr. Skerratt will not have been unlawful and will therefore not attract criminal liability for assault.  As Dhillon, P.C.J. stated R. v. Urquhart, 2013 BCPC 184 (CanLII), [2013] B.C.J. No. 1569 (Prov. Ct.):

[5]            Some of the broadly relevant facts surrounding the events of July 13, 2013, are uncontroversial, viz:

[6]           As can be seen from the outline of uncontroversial facts set out above, the Incident occurred within the broader context of the recent dissolution of the quasi-spousal relationship between Mr. Yanish and Ms. Leadbetter, coupled with an overnight stay by Mr. Skerratt at the Apartment at a time when Ms. Leadbetter (but not Mr. Yanish) was residing there.  Emotions were already running high as between Mr. Yanish and Ms. Leadbetter and Ms. Leadbetter inflamed the situation by baiting Mr. Yanish with provocative text messages that implied that, in light of what she considered unacceptable consorting on his part with another woman, she too had embarked on an adventure of her own involving boisterous sex with another person in the Apartment and in Mr. Yanish’s bed.  Mr. Skerratt stayed overnight at the Apartment that night and, after receiving the aforementioned provocative text messages, Mr. Yanish quickly made his way to the Apartment, found Mr. Skerratt there and punched him three or four times, injuring him badly.

[7]           Ms. Leadbetter testified that the person with whom she had had a sexual encounter on the night of the alleged offence was a person who had also been at the Apartment and, curiously, shared the same first name as Mr. Skerratt—that is, “Shaun” or “Sean”—but whose surname and departure she couldn’t recall.  Mr. Skerratt’s testimony contained no references to any sexual activity on his part with Ms. Leadbetter—indeed, his testimony was that his girlfriend had accompanied him to the Apartment but then mysteriously disappeared.  Being in both a deep sleep and a drunken state when he was attacked in the course of the Incident, he could give virtually no evidence about being punched repeatedly by Mr. Yanish beyond recalling the sound of Mr. Yanish’s angry voice.

[8]           Whether (a) Ms. Leadbetter’s taunting e-mails to Mr. Yanish contained a thread of truth about her illicit sexual activities in the Apartment on the offence date, or (b) Mr. Skerratt was a participant in those activities, will never be known.  Ms. Leadbetter’s testimony as a Crown witness was, at times, confusing to the point of being incoherent.  And, because Mr. Skerratt’s evidence was that his recollection of material facts concerning the Incident was almost entirely occluded by an insensate condition brought on by a combination of alcohol and fatigue, he gave no testimony that could bring matters into better focus.  What is clear, however, is that Ms. Leadbetter’s provocative e-mails hinting at some spirited, post-breakup infidelity on her part brought Mr. Yanish swiftly to the Apartment and, very soon after arriving there, he administered (by his own admission) a significant beating to Mr. Skerratt.

[9]           Whether Mr. Yanish acted in self-defence is the main issue in this prosecution.

[10]        Mr. Yanish’s testimony during his evidence-in-chief was that the texts he received from Ms. Leadbetter excited concerns on his part about people unknown to him being in the Apartment (something for which he hadn’t given his permission).  The texts also raised concerns, he said in chief, about the possibility that his furniture might be damaged.  This, he testified, led him to go to the Apartment, even though under his alternating arrangement with Ms. Leadbetter it was a time when she was to be staying there (and not him).  He claimed in his testimony that his purpose in attending was to ensure that strangers were not present in the Apartment without his permission and that his furniture was not in jeopardy.

[11]        Upon arriving at the Apartment (Mr. Yanish’s direct testimony continued), he entered it using his own keys and immediately noted men’s shoes on the floor that he did not recognise.  He then went to the kitchen, got a steak knife which he concealed in one hand with the blade pointing up into his sleeve, and searched through the apartment for further signs of people other than Ms. Leadbetter being present.  When his search brought him to the master bedroom he found Ms. Leadbetter on the telephone to police and he demanded that she tell him who else was in the house.  He did so using a loud voice and vulgar profanities.  Mr. Yanish’s narrative went on with him returning the knife to the kitchen, continuing his search and, eventually, discovering Mr. Skerratt asleep in the bed in the second bedroom.

[12]        Mr. Yanish testified that he entered the second bedroom, nudged Mr. Skerratt roughly with the toe of his foot in the chest and leg areas a few times and told him in a loud and commanding voice, repeatedly, that no visitors were supposed to be in the Apartment.  The commands he issued were “get the fuck out of my house” and other variations on that theme.

[13]        The nudging and yelling, Mr. Yanish testified, startled and awakened Mr. Skerratt and caused him to sit up quickly with both hands closed and held at shoulder level.  Mr. Yanish sometimes used the word “lunge” to describe the way that Mr. Skerratt’s torso moved upward and toward him when he awoke and sat upright.  Mr. Yanish’s testimony was that this motion caused him to fear that Mr. Skerratt would harm him—in his own words: “I thought that maybe he might strike me”.  Thus, he testified, he punched Mr. Skerratt three or four times in the head area in order to prevent that from happening.

[14]        In order for Mr. Yanish successfully to call in aid the defence of self defence, I must find his testimony recounting the above-described sequence of events in the second bedroom, culminating in the Incident, to be credible.  To paraphrase s. 34, I must find on the basis of credible evidence that:

[15]          I will say straightaway that I have no hesitation in rejecting Mr. Yanish’s evidence in this connection as having been contrived and concocted in order to furnish him with a defence—that is, the ability to argue that he struck Mr. Skerratt in self-defence.

[16]          A central tenet of Mr. Yanish’s story was that his reason for attending at the Apartment was to ensure that no unauthorised guests were present there and that his furniture not be placed, or remain, in jeopardy.  Indeed, in his evidence-in-chief, he referred to no other reason for attending there.  However, under cross-examination Mr. Yanish admitted that the last two text messages he received from Ms. Leadbetter caused him concern that she was cheating on him.

[17]        The possibility that Ms. Leadbetter may have been committing infidelity with another person was plainly uppermost in Mr. Yanish’s mind. That is borne out by his actions throughout.  As he said himself in both his direct evidence and on cross-examination, upon arrival at the Apartment his focus was trained upon the possible presence of persons there other than Ms. Leadbetter.  His first reported observation was that there were men’s shoes visible that were not his own.  He immediately launched into a search for another person, and not for evidence of damaged furniture.  Indeed, in describing his actions upon entering the Apartment, he made no mention of having ever searched for, or of having been vigilant for, or of having seen signs of, damage to any of his property. 

[18]        As I have mentioned, soon after entering the Apartment, Mr. Yanish insisted that Ms. Leadbetter tell him where in the Apartment the other person was.  She told him that there was nobody in the Apartment but herself.  By his own account, Mr. Yanish did not demand then or at any other time to see his bed in the master bedroom in order to assess its condition. 

[19]        If damage to furniture had truly been the concern Mr. Yanish now says it was, surely his actions upon arrival at the Apartment would reflect that.  They do not.  I find that Mr. Yanish was feeling aggrieved that Ms. Leadbetter may have had a sexual encounter with another person (as she had intimated she had done in the text messages that brought Mr. Yanish to the Apartment within minutes of their transmission).  His determined efforts to find another person in the Apartment are consistent with that conclusion.

[20]        Mr. Yanish’s actions aimed at verifying claims of infidelity on Ms. Leadbetter’s part and then dealing with it also resonate with his voluntary and spontaneous statements to Cst. Naderpour after he was arrested and placed in the officer’s police cruiser.  Those voluntary and spontaneous statements went into the record unchallenged by Mr. Yanish and they contained no mention whatsoever of broken rules about unauthorised visitors, or of Mr. Yanish having had concerns about damage to his furniture.  Rather, they referred exclusively to Ms. Leadbetter’s infidelity and how, in his mind, those who commit infidelity should be subject to criminal charges.  Mr. Yanish even went so far as to tell Cst. Naderpour that he had caught Ms. Leadbetter in bed with a naked man during his return visit to the Apartment—a statement which, like the others he made to police, he sought to dismiss at trial as being meaningless rantings which were unconnected to actual events at the Apartment and which could (he said) be attributed to his agitated emotional state.  I found this attempt on Mr. Yanish’s part to explain away his damaging admissions against interest unconvincing.

[21]        Mr. Yanish’s admitted state of upset and anger were plainly rooted in what he believed to be Ms. Leadbetter’s unfaithfulness, and not in concerns about broken house rules or whether his furniture may have come to harm.

[22]        Mr. Yanish agreed with Crown counsel during cross-examination that he took Ms. Leadbetter’s text message in which she told him “Ur bed got a little broke this morning.  Oops” to mean that, in the course of boisterous sex, she and another person had broken his bed.  He sought, also unconvincingly, to say that that was not his main concern.  But his actions overall belie that.

[23]        The beating that Mr. Yanish administered to Mr. Skerratt is also consistent with him having, at the time, borne animus toward Mr. Skerratt as a person he suspected had consorted with Ms. Leadbetter sexually at a time when he (Mr. Yanish) still had feelings for her and felt betrayed. 

[24]        Mr. Yanish would have the court accept that his only concern with Mr. Skerratt was that he was present in the Apartment without his permission.  Yet his own admitted actions of roughly nudging Mr. Skerratt with his foot in the chest and leg area (on one occasion he used the word “kick”) and demanding in a loud voice that he immediately “get the fuck out of [his Apartment]” are not commensurate with such a small basis for concern.  Recall that Mr. Yanish testified repeatedly that he had no history of conflict or enmity with Mr. Skerratt whatsoever; indeed, he said under oath that he “like[d] him” and considered him to be a “good guy”.  Recall as well that Mr. Yanish was not confronted, within the Apartment, with anything to suggest that Mr. Skerratt had damaged any of Mr. Yanish’s furniture. 

[25]        Clearly, upon finding him in the Apartment, Mr. Yanish was not reacting to Mr. Skerratt as someone who had spent time there without someone first getting his (Mr. Yanish’s) approval for his presence.  If that had been the case, he could have simply asked Mr. Skerratt to leave. 

[26]        But that was not the case.

[27]        The magnitude and nature of his reaction bears out that Mr. Yanish was reacting to Mr. Skerratt in an extreme way—that is, in the way a cuckold would react upon catching his unfaithful spouse’s illicit lover in his (the cuckold’s) own home.

[28]        Neither is Mr. Yanish’s testimony about his perceived fear of being harmed by Mr. Skerratt in the least credible.  After being arrested by police he was remarkably loquacious and delivered himself of several voluntary statements to Cst. Naderpour which give insight into what had motivated his actions at the Apartment shortly before.  Infidelity was the common thread that runs through those statements; conspicuous in its absence from them was any mention of a fear Mr. Yanish had of suffering harm at Mr. Skerratt’s hands. 

[29]        The evidence establishes that Mr. Yanish is 6’ 2” in height and that at the time the Incident occurred he weighed between 220 to 230 lbs.  By contrast, Mr. Yanish conceded that Mr. Skerratt is between 5’ 10” and 5’ 11” in height.  At the time of the Incident (when he was photographed), as at the time of trial, Mr. Skerratt weighed about 150 lbs. 

[30]        The sheer difference in their relative sizes calls into doubt Mr. Yanish’s professed fear that Mr. Skerratt would harm him.

[31]        That professed fear appears even less reasonable when it is recalled that when Mr. Yanish finally found Mr. Skerratt in the Apartment, the latter was dead asleep.  Mr. Yanish testified that he had to roughly nudge (or kick) Mr. Skerratt a number of times and yell at him to get him to wake up.  It is a reasonable surmise that in a groggy, just-awakened state, the comparatively diminutive Mr. Skerratt would have visibly presented less of a threat to Mr. Yanish than he might have done had he been awake and alert when Mr. Yanish found him. 

[32]        The fact that Mr. Skerratt was lying down on a bed and Mr. Yanish was standing over him at the side of that bed when the Incident occurred further tipped the balance of power, already tilted in Mr. Yanish’s direction, in Mr. Yanish’s favour by conferring a positional advantage upon him.  That, too, would objectively have rendered Mr. Skerratt a less obvious risk to Mr. Yanish, as would the facts that Mr. Skerratt had no weapons in his possession and did not make any threatening gestures toward him before he (Mr. Yanish) began punching Mr. Skerratt (both of which facts Mr. Yanish conceded on cross-examination). 

[33]        Beyond that, there is the fact that—as photograph 3 in Exhibit 1 clearly shows—Mr. Yanish need only have stepped back a pace or two to have been out of Mr. Skerratt’s range and thus safeguard himself against any risk posed by Mr. Skerratt.  A few more steps would have taken him out of the second bedroom entirely.

[34]        Viewed in the context of the other facts established by the evidence, Mr. Yanish’s testimony about his reason for returning to the Apartment and the fear that led him to strike Mr. Skerratt—all of which he tendered to the court in the hope of relieving himself of criminal liability for punching and injuring Mr. Skerratt badly—lacked an air of reality in all material respects: see R. v. Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3. 

[35]        Moreover, to quote the language of O'Halloran J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), the state of mind and motivations that Mr. Yanish sought to persuade the court governed his actions when he attended at the Apartment on July 13, 2013, lack harmony with "… the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions" (at p. 357).  I am aware that Faryna is a civil case 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.

[36]        It is true (as defence counsel argues) that even in his spontaneous and voluntary statements to Cst. Naderpour, Mr. Yanish displayed animus toward Ms. Leadbetter for cheating on him but made no express mention of animus toward the person with whom she had been engaging in illicit sexual activity.  But the absence of such express mention in the evidence before the court is not all-determining.  Common sense recoils from the proposition that Mr. Yanish would feel hostility toward Ms. Leadbetter about her professed infidelity and not feel hostility toward the person it appeared had been the other participant in the act of infidelity.

[37]        Most importantly, for the reasons I have given I wholly disbelieve Mr. Yanish’s testimony that he struck Mr. Skerratt with three or four punches out of a fear—arising out of the way Mr. Skerratt sat up in bed—that Mr. Skerratt might harm him.  For the purposes of the analysis in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at 757, and as enlarged and modified by the B.C. Court of Appeal in R. v. H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (C.A.), I will say that I reject altogether Mr. Yanish’s evidence in this connection.  Neither do I find that it is capable of raising a reasonable doubt about him having acted in self-defence.  Rather, the evidence points clearly to:

[38]        These findings negate any reliance by Mr. Yanish on s. 34.  On the facts as found, he had no reasonable grounds to believe that a genuine threat of force was being made against him by the wholly compromised and virtually helpless Mr. Skerratt.  The punches administered to Mr. Skerratt by Mr. Yanish were not defensive in nature or purpose; they were just desserts meted out for what Mr. Yanish believed (rightly or wrongly) was Mr. Skerratt’s participation in Ms. Leadbetter’s professed act of infidelity.  Those blows were not administered for the purpose of protecting Mr. Yanish from a reasonably perceived threat that Mr. Skerratt would use force against him.

[39]        If I am wrong in those findings and determinations, I would say nevertheless that Mr. Yanish’s actions in punching Mr. Skerratt three to four times and causing him considerable injury were unreasonable as being grossly disproportionate to any threat he may have faced, having regard to:

[40]        As I explained at an early point in these Reasons, it is conceded by counsel for the defence that the actions committed by Mr. Yanish in the course of the Incident amount to an intentional, non-consensual application of force by him to Mr. Skerratt as contemplated by the definition for assault given in s. 265(1)(a) of the Code. 

[41]        Mr. Yanish has invoked self-defence as a means of purging that assaultive behaviour of its unlawful character.  However, for the reasons I have outlined, Mr. Yanish’s actions—when considered within the context of the surrounding circumstances—do not constitute actions taken in self-defence as contemplated by s. 34 of the Code. 

[42]        Accordingly, and for all of the foregoing reasons, I find Mr. Yanish guilty of the offence of assaulting Mr. Skerratt on July 13, 2013, contrary to s. 266 of the Criminal Code.