IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Under Information 93646-1, the accused, Grizzly Gus Christopher Loo (“Mr. Loo”), faces a charge of assault causing bodily harm.  The named complainant is Shane Harold Davidson (“Mr. Davidson”), the alleged offence date is January 17, 2015 and the location where the offence is alleged to have been committed is Maple Ridge, B.C.  Mr. Loo entered his not guilty charge to the single count 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 alleged assault.  I do not understand there to be controversy as between Crown and defence as to proof of jurisdiction or identification, or as to proof of the fact that Mr. Loo and Mr. Davidson had a physical altercation on the alleged offence date and that Mr. Davidson suffered bodily 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 a credibility assessment which will lie at the centre of the ultimate disposition of the charge against Mr. Loo.

[4]           The law concerning the determination of credibility in cases, like the present case, where an accused calls defence evidence is well settled.  It is defined in the protocol set out by the Supreme Court of Canada in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 as augmented 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.).  Applying that protocol to the case at bar:

[5]           As can be seen, Mr. Loo elected to call defence evidence by testifying on his own behalf.  He was the only defence witness to testify.  In argument he invokes the provisions of s. 34 of the Criminal Code.  That section provides as follows:

[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 by Mr. 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 (CanLII), [2013] B.C.J. No. 1569 (Prov. Ct.), it is the Crown’s onus to “show beyond a reasonable doubt that self-defence does not apply” (emphasis added).

[7]           Mr. Davidson’s testimony in chief regarding the altercation that occurred between him and Mr. Loo during the evening of January 17, 2015, and its aftermath, included the following, key factual assertions:

[8]           Mr. Loo’s testimony in chief regarding the altercation that occurred between him and Mr. Davidson during the evening of January 17, 2015 differed dramatically, as noted, from the version given by Mr. Davidson.  Mr. Loo’s account included the following, key factual assertions:

[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.

[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.

[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 in the toilet, and also on Mr. Loo’s own clothing.  Mr. Loo could not recall noting anything of that kind; neither was there any other evidence 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, “Are you done?”, he turned his back on Mr. Davidson — who was still lying on the floor — and walked out of the cell, exposing himself to the 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 risk identified in Mr. Fogel’s questioning, he felt secure in turning his back on the man who had punched him twice, and who he had knocked to the floor with his elbow, and leaving the cell without keeping him under observation while doing so.

[18]        Both accounts of what transpired in Mr. Davidson’s cell during the evening of January 17, 2015, are problematical.  As can be seen 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 account can 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 and Mr. Loo were near to complete strangers and, yet, when Mr. Loo entered his private space, against FRCC Rules, without being invited or asking 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.  That reaction put Mr. Loo entirely outside Mr. Davidson’s visual field, creating vulnerability—the kind of avoidable vulnerability that one would 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 what the 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 his own 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 was working, or urinating in the cell belonging to Mr. Davidson which was farther away and had a closed door, Mr. Loo chose to urinate in Mr. 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 the point 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 "… the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions": Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952], 2 D.L.R. 354 (C.A.) at 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.

[22]        The question before the court, however, is whether — with all its infirmities — the evidence led by the Crown at the trial of Mr. Loo’s charge of assaulting Mr. Davidson and causing him bodily harm, viewed in the context of Mr. Loo’s defence evidence, is sufficient to:

[23]        As I have noted, there are aspects of Mr. Loo’s testimony, offered in his own defence, that seem counter-intuitive and unworthy of belief.  But the case he has to meet at the instance of the Crown suffers for the comparable weaknesses I have identified in the evidence 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 subject altercation, neither can I reject Mr. Loo’s exculpatory version altogether.  It is, in other words, an account of the events in issue that I am unable wholly to dismiss.  Thus, I find myself left with a residue of reasonable doubt about Mr. Loo’s guilt after considering the defence evidence 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, in order for Mr. Loo to be deprived of the benefit of the self-defence defence, the Crown must prove beyond a reasonable doubt that:

[26]        Here again, despite its many weaknesses and implausible aspects, Mr. Loo’s evidence leaves me unable to reject his account of the subject altercation altogether.  I am unable, therefore, to find beyond a reasonable doubt that, the defence of self-defence does not apply 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 element in the four part R. v. W.D. formulation summarised in para. 4 of these reasons, namely, “If I do not believe the exculpatory evidence of Mr. Loo but am left in reasonable doubt by it, I must acquit him”.

[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.