IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The accused is charged with the following counts:

[2]           The date of the alleged offences is March 24^th, 2016.

[3]           The accused Rocky Hoffman and the complainant, S. B., were friends prior to this incident.  The complainant is a massage therapist.  She had tried to provide ongoing support to the accused, who had his own set of health issues.  On the day in question S.B. decided to check up on the accused at his residence in Chilliwack.  She received text messages from the accused, and went to his house.  The parties got into a disagreement after an initial period of pleasantries.  S.B. takes the position that the accused kicked her out of his house, then pulled her back into his house and assaulted her repeatedly with a glass, causing her extensive injuries, in particular around her head.  The accused takes the position that the complainant attacked herself, then him and thus the incident raises issues of self-defence, or in the alternative, defence of property.  The accused received a deep cut to his right hand.  The complainant also received extensive injuries, in particular around her head and facial area, which the accused claims were inflicted by the complainant herself, or indeed by others.  The complainant was sober; the accused was intoxicated at the time the police arrived.

[4]           The main issue in this matter is that of the credibility and reliability of S.B. and the accused.  I am mindful of the factors to consider as set out in R. v. W.D. 1991 CanLII 93 (SCC), [1991] 1 SCR 742.  Firstly, the principle of reasonable doubt applies to issues of credibility as well as fact.  If I believe the accused I must acquit; if I do not know whether I believe the accused or the complainant I must acquit; if I do not reject the evidence of the accused I must acquit; and if I disbelieve the accused, i.e. his evidence is rejected then before I can convict I have to be convinced beyond a reasonable doubt of the guilt of the accused on the whole of the evidence.

[5]           There is the further issue of the air of reality to the defences raised, being self-defence and defence of property.  The accused takes the position that S.B. was not truthful, and that the police as well have not been truthful.  Indeed, the defence goes further and suggests that the police actually planted evidence at the scene, being blood splatters on the floor, walls and ceilings, in order to aid the reliability of the complainant’s evidence.  The defence also takes issue with the extent and cause of the complainant’s injuries.

[6]           I would like to review the Crown evidence first and then the defence evidence.

[7]           Ms. Robinson is a 911 operator.  She has worked in that position for 22 years.  She received a call on March 24^th, of 2016 from the accused.  She was not aware of the exact time of the phone call.  The 911 call was recorded.  But it did appear the call was made at 8:13 pm and lasted about 7 minutes and 43 seconds.  Ms. Robinson did not receive any other calls from anyone associated with the house in question.  Ms. Robinson was not sure if the call had been made on a landline or on a cell phone.  She was intent on getting the correct address from the accused.  The police were dispatched after this call to his address on Yale Road in Chilliwack.

[8]           Ms. Robinson testified that the call was one of high emotion for all involved, because it was clear to her that a fight was in progress at the residence.  She stayed on the phone until the police arrived on scene.  She wanted to get as much detail as she could.  Ms. Robinson was hoping to diffuse the fight that she overheard on the phone.  She did not know if the persons were inside or outside of the residence.

[9]           The defence acknowledged that the accused was the one who placed the 911 call, with the complainant’s voice being the other voice overheard on the recording.  I found that the 911 call was voluntary, although in hindsight I am satisfied that the 911 call-taker with whom the accused spoke was not a person in authority.  Furthermore, the phone call was part of the narrative, as to what was transpiring during the course of the alleged event.  The audio recording can only be described as dynamic and disturbing in nature, and must be placed into the context of the incident as a whole.

[10]        The transcript of the call was marked as exhibit 2 on the trial.  I would like to touch on some of the highlights of that 911 call.

[11]        The call began with the accused’s telling the complainant to get out of his house.  He was clearly very agitated.  Then the voice of S.B. is heard saying, “I’m in trouble, and he’s hitting me”.  The accused denied hitting her, and he called her a slut.  The male voice told her to get out of the house.  The complainant is heard screaming: “Please don’t hurt me”.  The male voice states that: “She’s playing a f… game.  I don’t like it and you know what, I’m gonna smack her one”.  The 911 operator advised the accused not to do that.  The accused then gave his name as Roy Hoffman.  The complainant is heard saying: “I don’t want to hurt you”.  S.B. again states: “Please don’t.  Just don’t”.  She denied hitting the accused, who then states that he will swing back and again the female voice, S.B., states: “Please don’t.  Don’t hurt me.”  The accused then states: “I will f…’n swing back, I’ll f…ing knock you.”  S.B. also denies hitting him, on page 3 of the transcript.  S.B. then states: “He’s gonna kill me”.  S.B. also states that he had taken some pills.  The male voice then denies taking pills.  The male voice states: “She slaps me in the f….. ing head so I f…ing hit her”.  S.B. is heard crying.  The accused states “You want another one?”  On page 4 of the transcript S.B. states - “Let me go”.

[12]        The 911 operator, Ms. Robinson, tried to defuse the situation and told the accused to stay away from the complainant.  The accused then goes on to say: “That f…n’ bitch threw a glass at me”.  S.B. is again heard screaming and then later crying.  The accused uses foul language throughout to the complainant.  He is clearly very agitated.  He is loud.  The complainant can also be described as sounding terrified during the course of the 911 call.  The accused’s voice is louder and more insistent than that of the complainant.

[13]        Ms. S.B. is the complainant.  She is 49 years old.  She has worked as a massage therapist for 25 years.  She is 5 foot three and weighs about 130 lbs.  She is considerably shorter and smaller in stature compared to the accused.  She had known the accused for about 6 months prior to this incident.  She met him initially in a social situation with some friends, and did some massage therapy for him.  The accused had told her he had been in an accident and had received some injuries from that accident.  The accused used the nickname of Roy.  The complainant testified that the accused weighed about 230 to 250 lbs. at the time.

[14]        The complainant decided to take the accused as a patient in order to assist him, and to do some massage therapy for him.  She testified she was struggling emotionally at the time.  She lived on Vancouver Island, but would come over to the Lower Mainland to see family and friends, and thus would take the opportunity to visit the accused.

[15]        The complainant and the accused became friends.  She also would help him, for example, to get rides to various places as he did not have a license.  There were times when he asked if he could join her socially with her friends.  She would see him every few days.

[16]        The complainant would meet the accused at his house and elsewhere.  She described him as being a gentleman.  She described them as being intimate on an emotional level as they were both going through some personal difficulties at the time.  They had some commonalities.  She agreed that their relationship became intimate, although she described their relationship as being in essence a friendship.  The complainant would also communicate with the accused via phone and text messages.  However, the complainant began to find that his calls and messages to her were becoming obsessive.  She asked him to stop being so obsessive.  The accused did not stop being obsessive in his calls and messages, so she ended up spamming him, by which she meant blocking his text messages.

[17]        On the day of the incident, the complainant had become concerned about the accused’s mental health.  She suspected that he had some sort of clinical depression, or perhaps had suffered some adverse effect from a prior head injury.  She found some of his behaviour as becoming odd, and thus she wanted to touch base with him.  She testified that on prior occasions, she found the accused would switch from being happy to ranting and yelling.

[18]        The complainant arrived at the accused’s house around dinnertime.  She had phoned him and told him she was coming over to check on him.  The accused agreed to meet her at his house.

[19]        The complainant described the property as a remote piece of acreage.  She parked and walked into his house.  When she arrived, she talked with the accused, and gave him a hug.  He gave her a couple of gifts, being a pillow and a plant.  She was not sure about his sobriety when she arrived.  The accused consumed a glass of wine with her.  They sat on a couch in the living room.  They talked for a while.  She told him she was concerned that he was depressed, and that something might be going on mentally with him.  She wanted him to get help.  She had begun to notice what she called obsessive behavior on his part.

[20]        They talked about life in general.  The accused then did a 5 minute workout on an elliptical trainer which was set up in the living room.  They discussed their relationship.  He had feelings for her, but she told him that they could never have an intimate relationship.  They had that discussion about a possible relationship on prior occasions.  Then the accused told the complainant that he did not want to live anymore.  He swallowed about 25 pills in front of her, and guzzled a bottle of wine with the pills.

[21]        The complainant had consumed about a half bottle of wine by that point in time.  She told him that she did not appreciate his verbal abuse on the phone including the messages that he had been leaving her.  She did not like his accusations.  The accused told her to shut up.  She told the accused she was becoming concerned about his behavior and other people’s safety.  She spoke of his verbal abuse, as well as his yelling and screaming on the phone.  She had saved his spam messages to her because she wanted evidence of his verbal abuse.  Also, the accused had threatened to kill his cats.

[22]        The complainant told him that he was taking up too much space on her message machine, and that he was becoming obsessive with her.  She told him she would have to report him to the authorities.  She had been afraid to go to the police because the accused had threatened her on a prior occasion about her going to the police.

[23]        The complainant agreed that she was frustrated with the accused.  She told him how to cut his wrists if he wanted to commit suicide.  She told the accused she wanted him to get help, but that it did not seem to her that he wanted to get help.

[24]        The accused became agitated.  She told him she had to leave and that she had plans with her girlfriends.  It was at that point that the accused started to kick her and threw her to the ground outside the patio doors, telling her to get out of his house, and that he did not want to talk with her again.  She testified on page 11 of the March 21^st, 2017 transcript, commencing at line 23, as follows:

[25]        She testified that the accused hit her in her lower back area, her thoracic area, as well as along her ribs and spine.  The accused pushed her down onto the ground a few times.  She knew he was upset.  She was trying to defuse the situation.  The accused was yelling, screaming and threatening that he was going to kill her and f… her up really bad.  The accused was making fists and lunging at her head.  A couple of times the complainant blocked his shots, and at other times the accused hit her in the head.  She went into a defensive stance.  She did not want to fight with him.  She wanted to back off.  She tried to diffuse the situation as he followed her to her car.

[26]        She was trying to figure out a way to escape the situation.  She had her phone with her.  The accused managed to knock the phone out of her hand.  She got down onto the ground and crawled around looking for her phone.  She then put it into her jacket pocket because she needed it to call for help.

[27]        The complainant explained how she was trying to leave for her own safety but the accused prevented her from doing that.  The accused punched her, hit her, threw her to the ground, and dragged her by her hair back to the house.  She tried to get into her car to leave but the accused was standing by her driver’s door.  She could see that the accused was angry and raging.  She told him that they should both calm down.  She asked him to let her go.  The accused was so upset that she felt he was not hearing her.  He kept telling her to shut up while he was beating on her, and talking about God.

[28]        She explained how the accused kept kicking her.  The incident happened so fast.  The accused told her to shut up.  He continued to beat her.  He went for her head, trying to punch her in the eyes and the jaw.  She in turn tried to protect her head.  She described receiving many blows and being able to block only a few with her forearms.  After the accused dragged the complainant back into the house, he then grabbed a glass and started smashing it over her head repeatedly, to the point where she was bleeding and could no longer see to block the blows.  He smashed the glass over the top of her head.  She subsequently had stitches on the back of her head to repair the injuries.  And she also had stitches on her face.

[29]        The complainant testified there was blood everywhere.  She did not have anything in her hands.  The accused kept telling her to shut up, or he would beat her worse.  He told her he was going to kill her.  The accused was yelling, shouting and being aggressive.

[30]        The complainant asked him why he was doing this to her.  She could not leave the residence.  She testified she was being pushed down, punched and smashed over her head with the glass.  She was in shock from the beating.  It seemed to her that the accused beat her over a lengthy time period.  The police took a while to arrive on scene.

[31]        The accused told the complainant that she should make the call to the police.  The accused was still in the hallway standing over her, beating her, as he made the 911 call.  She could not have left while they were on the phone with 911.  She felt she was being prevented by the accused from speaking so she spoke only briefly over the phone to the 911 operator.

[32]        The Crown played the audiotape of the call placed to the 911 dispatcher.  The complainant recognized her voice as being the female voice.  The male voice was that of the accused.

[33]        The complainant testified how she was in the hallway, trapped, not being able to get away from the accused.  The accused kept beating on her.  He did not stop.  She thought that he was going to kill her.  She feared for her life.  The incident stopped when the police showed up at the house.  The police helped her out of the house and in the result stopped the accused from being physical with her.

[34]        The complainant went to the hospital.  She had several stitches to the back of her head.  She had cuts above her eyebrow that needed stitching.  She had a hole through her lip that required stitches.  It took awhile for the injuries to heal.  She also had two black eyes.  She had bruises on her jaw.  She had problems with chewing.  She had difficulty speaking.  It took her about a month and a half before she felt comfortable enough to chew.  She testified that wherever she was punched she ended up with bruises.  She had significant bruising to her head and face.  She also had blows on other parts of her body.  There was some bruising on her forearms from blocking the blows.  She also had an injury to one of her legs where she had been pushed into a plastic bin inside the house.

[35]        She testified that it took a long time for the bruising to improve.  She still has scars from the stitches.  She found her right arm, elbow, shoulder and wrist were particularly painful after the event.  She found it difficult to work as a massage therapist.

[36]        The complainant testified how she feared for her life when the accused dragged her into the house.  He was raging at her.  There was no talking him out of it.  She could not leave.

[37]        The Crown showed the complainant the police photos, which depict blood and her earrings on the floor, the hallway area where she was confined and beaten, her hair brush beside the couch, and her passport or wallet which fell out of her purse during the incident.  The accused took her purse from her and threw it against the wall during the incident.

[38]        In cross examination, the complainant testified that she had prior phone contact with the accused that day.  She may have had a phone call with him the day before.  She arrived at about 4:30 pm at his residence.  She was in his residence for three hours before the 911 call was made.  They initially exchanged small gifts.  The complainant had no problem with the accused at the outset of the visit.  However, she did bring up his past behavior and boundaries with him.  She suspected that he was having some mental health difficulties.  In the past he had shown some aggression but then he would calm down.  The accused had indicated in a message to her that he was thinking about suicide.  She had become concerned about him, and in turn, the safety of others.

[39]        However, the complainant was afraid to call the police.  She had urged the accused to see a doctor.  She did ask him to speak with a doctor when she saw him that day.

[40]        In further cross examination, the complainant testified she did not know when during the altercation the accused called the police; and that she was in shock.  She was not sure what room she was in when the accused made the call.  The complainant could not see anything because of the blood on her face.  The accused was the one who made the 911 call because at the time she could not get access to her phone.  She described herself as being disoriented at the time the call was made, as she had been hit in the head multiple times.  The accused was stopping her from leaving his property.

[41]        She also described how she had her purse in the residence.  Afterwards, the police did return it to her with some of her items.  She described how the purse was thrown against the wall, and how the contents of her purse spilled onto the floor.

[42]        The complainant testified that during the interaction with the accused she defended herself from the blows until she could not see as a result of the bleeding.  She thought she was going to die.  She feared for her life.  The incident happened quickly.  She remembered waving her arms around in order to block the blows.  She was confined to one space, being the hallway between the bedrooms.  She thought she may have been moving up and down to change her level of elevation to get out of the way of the blows.  She described how she was doing whatever she could to survive.  Her purse got knocked out of her hands and thrown against the wall.  She had been able to hold onto her purse as the accused dragged her into the house, and for a period of time inside the house.

[43]        The complainant was afraid to call 911 or to call an ambulance for the accused after he took the sleeping pills.  The accused started to kick her and throw her to the ground after she told him she had to leave to be with some friends.  She even told him how to slit his wrists.  The complainant acknowledged she was being sarcastic when she made that latter remark.  She acknowledged that she did have memory problems about what they talked about because the accused punched her in the head so many times.

[44]        Further in cross examination, at page 48 of the Sept 7^th, 2017 transcript, the complainant testified that she took the blows because she thought the accused would stop and there were times when she was trying to defend herself.  She agreed she was moving around in the hallway.  Sometimes the accused would drag her by her hair.  Her hair was ripped out and on the floor.  The accused picked her up by her hair several times, so her feet may not have been on the floor.  She remembered there was blood everywhere.  It was on her face.  She was not sure when the glass was smashed over her head.  There were many fist blows coming at her.  There were shattered pieces of glass on her.  She had difficulty remembering everything because so much was happening.  For example, she could not account for what is an area of largely undisturbed blood drops in the area where she states there was a violent struggle between the parties.  She could not remember all the details.  She was fearful for her life as the accused would not stop hitting her.

[45]        The complainant maintained her position that the accused smashed a glass over her head and that she had stitches to her head, lip and eyebrow.  She also pointed to smudged fingerprints on the wall to indicate the area of the struggle.  She remembered the glass.  It shattered in the repeated blows to her head.  She could not see so she kept putting her arms up to defend herself from the repeated blows with the broken glass.  She did have a cut on her wrist consistent with a defensive wound.

[46]        The complainant acknowledged that before any physical altercation happened between her and the accused, he told her that he wanted her to get out of his house.  As she was leaving, the accused grabbed her from behind and told her to get out of the house.  He shoved her onto the ground on the way out, followed her and kept attacking her from behind.  She told him she was leaving.  She denied that she followed him back into the house.  She denied injuring herself in any way.  She attributed the cut above her eye to the accused’s smashing the glass into her face, and that she pulled glass shards out of her ear for about a month afterwards.  Her evidence of the glass is consistent with the evidence of Cst. Jack, who later saw glass in her hair.

[47]        The complainant denied coming to the accused’s residence with someone else who waited outside.  She agreed she and the accused both drank wine.  She denied putting something in his glass of wine.  She denied hitting herself in her face.  She agreed she was trying to defend herself from the accused to prevent herself from being injured.  She denied pushing the accused into the patio door.  She denied that he then pushed her onto the ground and held her down and said to her that the police were coming.  She denied that he had called the police to deal with her as a trespasser, and for having assaulted him.  She denied swinging at him as he held the glass of wine.  She denied breaking the glass that was in his hand.  She denied that was how she got the cut on her wrist and how the accused got the cut on his hand.

[48]        The complainant denied that the accused flipped her over and that was how she got the cut on her face.  The complainant denied being confused about how the event occurred in the residence.  She testified she remembered being attacked.  She had never been so afraid for her life.  She denied that the accused took her outside and that she then followed him back into the house to look for her purse and phone.  She agreed that when the police arrived she was still in the hallway area.

[49]        The complainant also denied that the cuts on her head were made worse by the hospital staff.  She denied that the hair clump at the hospital was the hair from the house.  She confirmed that she had hair coming out in clumps for days afterwards.  She did acknowledge that the accused threatened to kill her that evening while he was on the phone to 911.

[50]        Cst. Jack was dispatched to an incident at the accused’s residence on March 24^th, 2016.  The detachment had received a 911 call.  She reviewed the audio and the transcript made from the audio of that call.  She was satisfied that the audio was accurate.

[51]        Cst. Jack was later recalled as a witness to clarify what she saw at the residence.  Both she and Cst. Micklefield drove to the accused’s residence at the same time, in separate vehicles.  When she arrived at the residence she saw a room, and through a door she could see a male standing over a female who was crouching down.  The male, the accused, had his hand up in the air.  The accused had something in his hand.  Cst. Jack could see there was blood on the accused and on the floor.  The accused was about a foot or two away from the complainant.

[52]        Cst. Jack did not know what the object was in the accused’s hand, but she described it as a red object.  She believed that the accused had it in his right hand.  She could not see much of the female, other than she was sitting down on the floor in the space between the two doorways in the hall area.

[53]        After Cst. Jack made her observations through the window, she came around to the front of the residence where the patio door was located.  Cst. Micklefield started to communicate with the accused who remained inside the residence.  The complainant came outside.

[54]        Cst. Jack remembered there was yelling but did not know the specific words.  Cst. Jack observed that the complainant’s head and clothing were covered in blood.  She was shaking.  Cst. Jack waited with her and Cst. Micklefield until other officers arrived, being Cst. Castonguay, Cst Dolinsky and Cst. Stewart.

[55]        When the other officers arrived, they entered the residence.  Cst. Micklefield placed the accused under arrest.  Cst. Jack remained with the complainant while the ambulance attendants attended to her head wounds.  The officer then attended the hospital in order to take a statement from her.  Cst. Jack described how the complainant’s wounds were difficult to see at the scene, but the paramedics started to clean out the glass in her hair.  Cst. Jack observed that the injuries were two gashes on the top of the complainant’s head, approximately an inch in length.  Cst. Jack was quite sure that there were two gashes.  Later, at the hospital, Cst. Jack observed bruising on the complainant’s legs and arms.  Cst. Jack described the complainant as being coherent, with no sign of alcohol intoxication.

[56]        Cst. Jack remained with the complainant while the nurses and a doctor attended to her.  She in turn took an audio statement from the complainant at the hospital.  Cst. Stewart took photos of the complainant, which photos have been marked as an exhibit.

[57]        Cst. Jack was aware that the accused had made a 911 phone call.  Cst Jack heard the accused say he wanted the complainant out of the house.  Cst. Jack remembered there was yelling at the house but she could not remember the exact words.

[58]        Cst. Jack also took photos of the complainant’s hands in October 2017, well over a year later.  Cst. Jack testified that the complainant was a petite woman with small hands.  In cross examination, Cst. Jack testified she did not see any of the attending police officers remove the hallway blinds which were found on the floor of the residence.  Cst. Jack did not observe any blood when she went into the residence, so she was not able to say if there was blood on the floor upon her arrival.  She denied that she or any other attending officer had placed blood or a red substance on the floor of the residence after their arrival.  She also denied that the doctor in the hospital made the cut in the complainant’s head or in some way made her injuries worse.  She also had no knowledge of a clump of hair having been transported to the hospital from the residence.  Cst Jack did observe the complainant pulling hair out of her head at the hospital.

[59]        He was one of the first officers dispatched to the scene on Yale Road.  He was dispatched around 8:08 pm.  He arrived at 8:20 pm.  He was the third officer on scene.  He let the other officers take control.  He offered to take photos of the complainant and the inside of the residence.  Cst. Jack and Cst. Micklefield had already arrived.  Then Cst. Noel and Cst. Stewart arrived after him.

[60]        When he arrived, Cst. Castonguay saw the complainant standing at the entrance of the driveway.  He took an initial statement from her.  She directed the police to the residence.  There was a long driveway, and a house at the end of the driveway.  The residence was a cottage.

[61]        Cst. Castonguay observed blood on the floor and the walls, a broken glass from a jar or a glass on the floor, as well as broken blinds.  When he entered the residence he saw the accused sitting on a couch.

[62]        Cst. Castonguay took photos of the complainant and the inside of the residence.  He testified as to the lay out.  One entered through a sliding door into a hallway, which in turn led to a bedroom.  He observed blood on the wall in the hallway.  He also saw hair on the floor.  He observed what appeared to be blood on a piece of glass located on the floor.  There was a hardwood floor in the hallway.  The officer took photos of the blood and hair on the floor.  He also took photos of the couch in the living room.  There were drops of what appeared to be blood on the couch, on the floor in the area of the couch and on the rug under the coffee table.  He took photos of the blinds on the floor, as well as blood in the area of the blinds.  There was a pill bottle on the coffee table.  There appeared to be blood on two pillows on the couch.

[63]        The officer located a firearm on the bottom of the coffee table.  It appeared to be a pellet gun.  He took several photos of what appeared to be blood throughout the residence, in particular on the floor and the wall, but there was also what appeared to be blood on the ceiling of one of the bedrooms.  There was what appeared to be blood inside a kitty litter box, located at the entrance to one of the bedrooms.  He also found clumps of hair on the floor in more than one location.  There was a broken piece of a kitty litter box on the floor.  He took photos of what appeared to be blood above the frame of one of the doors leading into a bedroom.  There were pieces of broken glass on the floor, as well as a broken glass itself.  I note the broken glass on the floor does appear to have blood on it.  There were also some earrings on the floor, in an area of small pieces of glass.

[64]        The officer took the photos between 8:40 pm and 9:00 pm, and so thus not long after the accused had been taken into custody.  The officer took photos of the complainant in order to show the extent of her injuries.  He took photos of what appeared to be blood on the complainant’s clothing and on her hands.  Cst. Castonguay described how there appeared to be blood around the complainant’s head and hair.  There was also a scrape on the complainant’s left elbow as well as blood on her left wrist and lower right arm.  Her hands had what appeared to be blood on them.  There was blood on the her boots, her dress, her legs as well as on her body.

[65]        The officer also took photos of the accused, which show what appears to be blood on his face, on his clothing, as well as on his right leg and most especially on his right hand.

[66]        The officer seized a number of items from the residence, being a clump of hair which was 3 to 4 inches in length.  He seized two earrings found on the floor in the hallway, as well as pieces of broken glass, about 10 pieces in all.  He also seized the pellet gun from the living room.  It did not have pellets in it.  He also seized 4 grams of hash from the living room.  He seized an unsmoked joint.  The officer did not seize any clothing from either party.

[67]        The officer explained how the residence had a long driveway, and that the main entry door was a sliding door, which opened from the right to the left.  The police prepared a diagram of the residence, which was entered as exhibit 4, showing the layout.

[68]        The accused was taken into custody without incident.  It was after the accused’s arrest that Cst. Castonguay took the photos, being careful to avoid stepping in the blood on the floor.  The ambulance took the complainant to hospital.

[69]        The officer did not recall seeing any bottles of wine or beer in the house.  There was a red wine bottle on the kitchen counter, as shown in photos 1 and 2 in exhibit 5.  There was no other indication of alcohol use having occurred in the house.  There was some evidence of marihuana found by an ashtray, and a little container of hash.  Two croc shoes were found outside one of the bedroom doors.  Some of the photos depicted what appeared to be disturbed blood on the floor.

[70]        In cross examination, Cst. Castonguay testified that he did not take any photograph of the accused’s hand.  He had no knowledge of the injuries to the accused’s hand.  The officer did not see any injuries to the accused’s face or legs.  The accused was wearing runners.  He was taken to the hospital first and then later to the detachment.  The officer did not see if the accused had any bruises to the front portion of his body.  The officer also had seized a knife that was found in the living room, but it was in its sheath and there is no suggestion of its having been used.

[71]        The Crown sought a ruling regarding voluntariness of a statement the accused made to the police at the house.  I found that the statements the accused initially made at the house were voluntary.  The Crown did not seek their admission as part of the Crown’s case but rather chose to use them in cross examination of the accused.

[72]        Cst. Castonguay testified he was present for the accused’s statement.  He was in uniform, with other officers.  Cst. Micklefield advised the accused that he was under arrest, and provided the accused with his s 10 (a) and (b) Charter rights, plus the police caution.  The accused was taken into custody without incident.  The arrest occurred inside the residence.  Cst. Castonguay assisted Cst. Micklefield in escorting the accused outside.  The accused was visibly angry but he cooperated with the police as he was being taken to the police car.  Cst Castonguay did not have any conversation with the accused.  It was at this time that the officer took photos of him.

[73]        Cst. Castonguay was questioned further about evidence tampering at the scene, such as moving a clump of hair from the scene and taking it to the hospital.  The officer bagged the exhibits at the scene and took them to the detachment.  The officer denied placing any hair into the scene at the residence, or that any of his fellow officers had done that either.  He pointed out that the police are not in the business of planting evidence at a crime scene.  Nor are the police in the business of causing injuries to people, such as to the complainant.

[74]        The officer did not take any photos of broken glass in the wall, but he took the photo of the broken glass on the floor.  He was not able to comment on whether or not one of his fellow officers changed the pattern of what appeared to be blood on the wall.  He denied making any changes to the blood patterns on the wall.  The defence position is that the police tampered with the blood patterns found in the house.  The police denied such tampering.

[75]        Cst Micklefield was dispatched to assist at the scene.  Cst. Jack proceeded in her police vehicle.  They arrived together.  The police had some trouble locating the residence tucked in behind another residence on a rural piece of property.  He approached the residence.  He saw a female, the complainant, sitting on the floor with her back to the window, and a male standing overtop of her, with his right hand raised.  There was yelling.  He could see the female had a cut on the back of her head.  There was blood all over the floor and over the male as well.  He made these observations as he stood outside of the residence looking through the window.  He saw the complainant in the hallway and then he heard some yelling on the part of the accused.  The officer did not recall what was said, but he did note that the accused was angry.

[76]        In cross examination, Cst. Micklefield agreed that he could not tell if the red substance on the floor was blood or some other substance.  He could not say from where the blood originated.  He concluded it was reasonable to believe that the blood had come from the cut on the back of the complainant’s head and/or from a cut on the accused’s hand.  The ambulance attendants looked at the accused’s hand and sent him to the hospital.

[77]        Cst. Micklefield agreed that the accused was not only bleeding from his hand at the time of his arrest, but he also had blood on his face.  The officer saw the cut to the accused’s right hand after he arrested him.  When Cst. Micklefield advised the accused he was under arrest, the accused protested but he was placed in handcuffs without incident.  The accused was upset.  The officer also asked the complainant to leave the residence.  Cst. Jack dealt with her.  He did not inspect the complainant for any injuries.  There appeared to be blood on her.

[78]        The officer was asked about the scene and the presence of glass in the wall.  The scope of the defence questions raised the suggestion that the police had planted evidence at the residence.  For example, the defence suggestion was that shards of glass were placed in the wall after the incident.  Defence counsel asked the officer if the blood on the wall and the floor had been altered after their arrival.  Cst. Micklefield denied tampering with any blood, nor did he witness any other officer tampering with the blood at the scene.

[79]        The accused was intoxicated and slurred his words at the time of his arrest.  The note the officer made was that the accused was heavily slurring his words and the officer could detect an odor of liquor from inside the residence and indeed from the accused’s breath.  He made those observations while standing at the patio door.  The officer also found a bottle of zopiclone in the residence with the lid off.  There were some droplets of blood inside the lid.

[80]        Cst. Stewart became involved with this matter shortly after 9:00 pm.  When he first arrived there was an ambulance looking after the complainant.  There were a number of other officers present.  Cst. Micklefield was placing the accused into a police vehicle.  Cst. Stewart attended to manage the scene, to take photographs and to identify exhibits.  He also did a diagram of the layout of the residence.  He took a photo of the open bottle of medication.  There was a small pellet rifle under the table.  He observed what appeared to be blood on the wall, blood in the area of the couch and coffee table, and on the hallway floor.  There was blood on the ceiling of the hallway.  Most of the blood was found on the hallway floor.  There was broken glass on the floor, as well as jewelry.  There was a photo of the coffee table with some open alcohol containers and a half drunk liquid.  There were blood smears on the light switch.

[81]        Cst. Stewart also attended the hospital to take photos of the complainant.  He did not notice any marks or bruising on her knuckles.  He took photos of the injuries to her face and head.  The complainant’s scalp and hair were saturated with blood.  He also took a photograph of her right ear.  He observed blood on the complainant’s boots.  There was a cut above her right eyebrow.  There was a red mark or injury to the left side of her neck.  There was also a photo of a clump of hair consistent with hair coming from the complainant.  The doctor pulled back the complainant’s scalp to show a cut that was on her scalp that was not otherwise visible due to her hair.  There were also injuries on the back of her neck.  The palm of her hand had bruising.  Her right arm had some bruising and there was a cut on her wrist.  The officer took a photo of only one laceration to the top of her head.  The defence made much of there being a single laceration rather than two lacerations on the back of the complainant’s head.  The Crown did not call medical evidence to clarify the complainant’s injuries, especially to the back of her head.

[82]        Cst. Stewart described the complainant as being shaken but calm.  She was clearheaded and able to answer a number of questions.  Cst. Stewart did not notice that the complainant was intoxicated.  He did not notice any smell of liquor on her.  He was with her for approximately 20 minutes.  He agreed in cross-examination that he took a photo of only a single laceration on the top of her head.  He only would have taken a photo of a second laceration if he had seen it, which he did not.  He pointed out that hair can obscure head injuries.

[83]        Cst Stewart did not order any testing of the blood he had observed around the residence.  He was not able to say for sure that it was blood or if it was, whose blood it was.  Cst. Stewart did observe the accused had an injury to his hand that EHS was treating.

[84]        In cross examination, defence counsel suggested to Cst. Stewart that the police had done something untoward to the complainant which had resulted in her injuries.  Cst. Stewart had no information regarding that as a possibility.  Defence counsel also asked a number of questions of the officer regarding the blood patterns along the ceiling, suggesting that the blood patterns had been altered.  The officer acknowledged that only an expert could answer the hypothetical questions posed by the defence.

[85]        Defence counsel further suggested that blood had been added to the scene by the police after the fact.  Cst. Stewart testified that he took his photos within a short period of time after his arrival, and that nothing was placed on the ceiling by any of the other police officers present, at least not that he observed.  Neither did Cst. Stewart agree with the suggestion that the police had altered the blood patterns on the wall.

[86]        Defence counsel also suggested that the cut on the complainant’s head was made at the hospital by the doctor, before Cst. Stewart took the photo of the complainant’s head.  Or in the alternative, that the cut was made worse by the doctor.  However, Cst. Stewart testified that the doctor pulled the complainant’s scalp apart to show the laceration for the benefit of his taking the photograph.  Cst. Stewart also testified that the container for the kitty litter was not broken after he arrived on scene, but rather it had been broken before his arrival.  He denied that the police had tampered with the clumps of hair found on the hallway floor.

[87]        The accused appeared disoriented, confused and angry when the medical staff were treating him at the hospital.  He also appeared to be sedated.  The officer suspected the accused had drugs and/or alcohol in his system given his demeanor.

[88]        Cst. Dolinksy arrived at the residence at 8:17 pm.  He encountered a woman, the complainant, who was bleeding.  She was soaked and dripping in blood.  She seemed to be in a state of shock.  The complainant had wet and dried blood streaming down her face.  She had droplets of blood dripping out of her hair.  Her clothing and arms were covered in blood.  It looked like she had a cut on the right side of her face, in the area of her cheek near her eye.  The officer used his flashlight to look at the top of her head.  The complainant had a large open wound on the top of her head.  He described the large open wound as being about two inches in length.  It was triangular in shape.  The officer had difficulties making his observations because the complainant’s injuries were partially obscured by the presence of blood.

[89]        Cst. Dolinksy walked with the complainant to the ambulance.  Cst. Jack remained with her.  Cst. Dolinsky did not see the other officers make any changes at the scene as far as blood patterns and hair were concerned.

[90]        Cst. Noel arrived on scene at 8:29 pm.  He passed Cst. Dolinsky who was with the complainant.  She was bleeding from her head.  Her hair, head and face were covered in blood.  There was blood down the front of her clothing and on her arms and legs.  He went inside the residence where Cst. Micklefield was speaking with the accused.  The accused was seated on a couch.

[91]        Cst. Noel spotted a gun on a shelf underneath the coffee table.  It turned out to be a pellet gun.  Cst. Micklefield then arrested the accused.  He appeared agitated.  He had blood on his hands, his arms and his face.  He appeared to have a large cut on his right hand.  The cut was bleeding.

[92]        Cst. Noel then did a visual of the inside of the residence.  He saw an empty pill bottle on the coffee table, damaged vertical blinds on the floor and a large amount of blood on the floor, the walls and splattered on the ceiling.  The majority of the blood was in the living room area and the hallway.  He also noted a large clump of brown hair on the floor.  He saw two earrings lying on the floor in the hallway and a broken drinking glass on the floor.  The glass was covered in what appeared to be blood.  There were empty beer cans inside the residence.  Other officers took photos of the scene.  Cst. Noel found 308 rifle shells in a closet.  Cst. Noel continued with the search and found a black air rifle in the entranceway to the residence.

[93]        After Cst. Noel left the scene, he was instructed to attend the hospital where the accused was in custody.  Cst. Noel was instructed to remain with the accused and to guard him as he was in police custody until he could be released and returned to the Chilliwack detachment.  He arrived at the hospital.  The accused was in the emergency ward.  He was strapped to the bed and was unconscious when the officer arrived.  He stayed with the accused until 00:50 hours.  The accused woke up.  The accused seemed to comprehend he was strapped to the bed, at which time he began yelling, screaming and swearing.  He demanded to be released from the bed.  He asked the officer why he was there and the officer explained to him that he was in police custody having been arrested for assault.

[94]        After the accused awoke, he called all police pigs, and he referred to the officer as a pig and a goof.  He was name calling.  He demanded to know why he was there, and the officer explained to him why he was there and why he was strapped down to the bed.  The accused demanded to be released.  The officer told him that he was not going to be released.  The accused became more angry, loud and boisterous.  He was screaming and yelling.  The accused slipped in and out of consciousness a few times.  He continued to be angry, loud and aggressive with the officer.

[95]        In cross examination, Cst. Noel denied seeing other officers tamper with the scene, such as putting clumps of hair on the floor.  The officer did see a broken drinking glass on the floor which appeared to be covered in blood.  He denied tampering with the blood at the scene.

[96]        Cst. Noel was of the opinion that at the time of the police arrival, the accused was impaired by either a drug and/or alcohol, or a combination of both.  The accused’s speech was slurred.

[97]        The accused received a call from the complainant at about 4:00 pm on the day in question.  He described the complainant as being upset on the phone.  She hung up, and arrived about 10 minutes later at his residence.  He described the complainant as arriving in a huff.  He described how he had asked her to leave his residence on prior occasions.  However, on this occasion they exchanged gifts.

[98]        The accused poured a couple of glasses of wine for them.  He acknowledged that he had left messages for her that were disturbing in nature.  He did not want her coming over to his house anymore.  He had hoped to scare her away.

[99]        The complainant asked if he wanted a massage.   She started to do what he referred to as “her little seduction dance”.  He ignored her.

[100]     The accused then started seeing double vision.  It was about 7:30 pm.  He had taken 20 sleeping pills.  He also claimed he saw someone outside the patio doors.  He claimed he was trying to get the complainant to leave and that he told her numerous times to leave.  However, she did not leave.

[101]     The accused testified that he detained the complainant at that point, and in essence sat on her, because she had been hurting herself.  He was straddled over top of her.  He acknowledged that he may have laid down for a period of time in the second bedroom of the house.  He fell asleep.  He claimed that when he came to, that he was really spinning and that is when he experienced having double vision.

[102]     The accused acknowledged that he may have experienced the double vision as a result of the four to six beers he drank before the complainant arrived at his residence, in addition to the wine and pills he took after she arrived.  The complainant did not like the fact that he was going to call the police.  He thought the complainant might be concerned about being arrested for prostitution.  Then the complainant started to smash herself in her face.  The accused claimed that this behaviour by the complainant was very traumatic for him.

[103]     The accused claimed that he cried when he later saw the damage that the complainant had done to her face.  That is when he first saw the photos taken by the police.  The accused claimed that he ejected the complainant that evening when she started to smash herself.  The accused threw his body over top of her.  He agreed he made the phone call to the police asking the police to remove her.

[104]     The accused further explained how he sat the complainant “on her butt”, because she was hitting him as well as herself.  The complainant was hitting herself in her face.  He demonstrated how she struck her face while he was over top of her on the floor.  He gestured with closed fists, striking himself in his face.  He claimed that he was detaining the complainant while he was on the 911 call.

[105]     The accused claimed that he told the complainant to leave his house, both before and during the 911 call.  The accused further claimed that the complainant returned to his residence after he had ejected her.  He denied hurting her.  The accused was straddled over top of her.  He had his cell phone out and called the 911 dispatcher.  He claimed to detain the complainant while he was on the phone.  In conclusion, the accused testified that the complainant had inflicted the injuries to her face, not him.

[106]     The accused then claimed that there was a point in time when he started to look for his phone and the complainant got up and pushed the accused into the patio doors.  He testified that he was caught off balance and caused the window blinds to fall onto the floor in the process.

[107]     The accused claimed that he held onto the complainant’s shoulder, and it was possible that he pulled her hair.  The accused further testified that it was possible that he had a grasp of her hair when he sat the complainant down the final time.  It was at that point when he grabbed her wine glass.  The accused claimed he was yelling at the complainant that the police were coming, and that she was crazy.  He got on top of her again.  The accused went to take a drink out of the wine glass, and the complainant struck the glass.  She went to strike the glass a second time.  The accused threw his whole body over top of the complainant and pulled back the glass.  However, he claimed that the glass hit the floor as he threw his body over top of the complainant.  A sharp pain hit him.

[108]     The accused testified on page 13 of the February 27^th, 2018 transcript,

[109]     The accused testified that he opened the porch doors, and that the complainant ended up with scuffed knees from the threshold of the porch doors.  The accused pulled the complainant across the patio and set her face down on the grass outside near her vehicle.  He admitted he dragged the complainant out of his house.  The accused admitted he was staggering, and lost all strength.  He closed the porch doors.  He grabbed a cold beer from the fridge.  He sat down and lit a smoke at the coffee table.  He heard the blinds, and saw the complainant kneeling down into her purse.  Items in her purse were scattered.  He claimed that the scattering of the purse’s contents was ultimately staged by unknown persons.  He also claimed that the blood on the wall was staged later by the police.

[110]     The police then arrived and came into his house.  He was seated at the coffee table at the time of their arrival.  He also remembered standing at the back door of the police car.

[111]     The accused further described how he received the cut to his hand.  He testified as follows on page 14 of the February 27^th, 2018 transcript, commencing at line 14:

[112]     The accused testified that the glass broke when the complainant hit it twice.  The accused claimed that the glass got caught up in the back of her hair and that her skull membrane was punctured as a result.  The glass then fell to the floor.  He claimed that all he wanted was for the complainant to leave his house.  Then he found that she had returned to his house.

[113]     The accused referred to the complainant as a C.I, or a confidential informant.  He believed that she was a police informant for some unknown reason.  He further claimed that the complainant set him up for a fall which resulted in his being in custody for the last two years.  In other words, that the complainant had orchestrated the incident as a false complaint so he could be prosecuted.

[114]     He denied threatening to kill the complainant that evening, but he claimed that when the police came to place him into the back of the police car, that he saw her standing outside and said to her that she better not come back out to his house because he would probably kill her.  He denied threatening to kill her when they were together in his residence.  He also claimed that he had called the police to have her removed from his residence not only that evening but two other times as well.

[115]     The accused did not see any blood in his house until the glass broke.  He denied wilfully striking the complainant with a glass that evening.  He was also insistent that after he ejected the complainant from his residence, she came back inside uninvited.  He thus claims defence of property, in addition to self-defence.

[116]     The accused then gave a slightly different version of how the glass came to be broken.  On page 20, commencing at line 45, the accused testified as follows:

[117]     The accused described how he was bleeding from the cut on his hand.  He described the cut as a gusher.  He testified that he was the only one who was seriously cut as a result of this incident.  He further claimed there was no indication of the blood on the floor being disturbed by movement, other than for one shoe print.  He claimed that the blood pattern on the floor and on the wall was subsequently arranged by the police.  He also claimed that the glass shards in the wall had been installed by the police.

[118]     The accused testified that he was acting in self-defence.  He wanted the complainant out of his house.  He took action by dragging her out of his house.  He thought he locked the patio doors when he returned to the house.  He sat down.  Then she returned to the house.

[119]     The accused denied ever striking the complainant with the broken glass.  He testified he may have accidentally poked the complainant in the head with the glass.  He claimed that the complainant only received a tiny cut to her skull membrane, not the size of the cut as shown in the photos.  He may have hooked the back of her hair with the glass that was in his hand.  He testified that he had no intention of harming the complainant.  He just wanted her out of his house.  The accused also denied kicking the complainant.  He claimed that the Crown evidence has been entirely fabricated.  He testified, for example, that either the complainant or the police subsequently dabbed blood on her legs.

[120]     The accused remained consistent throughout his evidence that the physical evidence in his residence had been staged.  Furthermore, he remained consistent that the complainant caused her own facial injuries.  The accused attributed the cut above the complainant’s right eye to broken glass on the floor; and that the complainant’s bruised ear and cheek were damaged from her slamming the floor when the accused flipped her.  He claimed that he flipped the complainant in order to get her out of his house.  However, the rest of the complainant’s injuries were self-inflicted.  He testified that the complainant, for example, hit herself so hard with her fists she caused her nose to bleed.

[121]     The defence entered a print out of the accused’s cell phone bill.  It is clear from that bill the parties did phone one another prior to this incident, and indeed on the day of the incident.  The accused claimed that the complainant used his cell phone to connect his phone with some of her “so-called ruffians” who were going to beat him up.  The accused denied calling her cell phone when she was at his house.  It is apparent that the accused made the 911 call at 8:07 pm.

[122]     The accused testified he had been involved in a serious workplace accident which had resulted in his suffering from short-term memory loss.  He received a head injury in that accident.  However, the accused also was of the view that the complainant conned him by setting up the situation at his house, to ensure he would be arrested.

[123]     In cross examination, the accused agreed that he took medication for pain and sleep.  He agreed that the pain medication caused possible memory problems.  He agreed he was taking sleeping pills in March of 2016.  He testified that the sleeping pills could well account for his memory loss.  He agreed he took the sleeping pills on March 24^th, 2016, but then testified he did not remember taking the pills.  He agreed that his taking the pills could well explain why his memory was poor.

[124]     The accused testified that he could not remember initially what had happened and that he remembered only after he reviewed the Crown disclosure package.  He was adamant that he ultimately concluded that he had not hit the complainant.  He testified at page 52, line 38, as follows:

[125]     The accused acknowledged that he left the complainant some disturbing voice messages.  He had asked her to leave his residence twice in February.  He had told her not to return.  He also testified that the yelling in the 911 call had in some way been pre-recorded by the complainant.  The accused thus appeared to claim the complainant had altered the 911 call in some fashion.

[126]     The accused also agreed he had a criminal record for theft, fraud, possession of stolen property and forgery convictions.  The Crown went over that record in some detail with the accused.  He admitted those prior convictions.

[127]     The accused admitted that after he took the sleeping pills, he started seeing double.  He testified that he took a swig of wine, plus drank the balance of the complainant’s wine.  He does not remember specifically taking the pills.  He agreed that taking sleeping pills combined with wine usually caused him to fall asleep.  He acknowledged that taking the pills with alcohol has an impact on him.

[128]     The accused testified that despite having a professional relationship with the complainant, he bought her a gift in March, being a pillow and a plant.  He agreed that he had fallen in love with her.  They exchanged gifts on this occasion.

[129]     The accused testified that the complainant started smashing herself when he called 911.  He dropped the phone because he was trying to stop her from hurting herself.  Then he set her down after she had pushed him into the patio doors.  He sat on top of her after he grabbed her glass.  He yelled at her and told her the police were coming.  He took a final drink of the wine in her glass.  The complainant received a cut on her wrist as a result of the glass breaking.  He testified that he had ejected her that evening when she started smashing herself.  He acknowledged that he physically took her out of his house.  He agreed he had dragged her out of his house by the back of her jacket.  He claimed there was blood on the back of her jacket from the cut to his hand.  He returned to the house and thought he had locked the patio doors.  He thought he had passed out.  He was waiting for the police to arrive.  The complainant then came back into the house.

[130]     The accused denied threatening to kill the complainant when she was outside.  He testified that after his arrest, he told the police that if the complainant returned he would kill her.  He also agreed that he accidently hit the complainant around her head when she was outside earlier on.  He agreed he was not gentle at the point of his ejecting her from his house.

[131]     The accused testified that his hand was cut by the glass when he had thrown himself over top of the complainant.  He temporarily acted out by dragging her outside.  He commented that it was a moment of temporary insanity.  His last memory was the complainant returning to his house, and seeing the complainant on her knees by her purse.  He heard the blinds on the patio doors and that is when he saw the police officer.  The accused was seated at the end of the coffee table in a kitchen chair when the police arrived.  He disagreed he was in the hallway with the complainant at the time the police arrived.  The accused also disagreed that the complainant left his residence after the police arrived.  According to the accused, the complainant was already outside.

[132]     The accused disagreed that he injured his right hand while he was striking the complainant with the glass.  He denied smashing the glass on her head.  He denied having the glass in his hand when the police arrived.  He maintained his position that the police had planted evidence.  He claimed that Cst. Stewart recreated the crime scene.  The accused testified there was no blood on the walls from the complainant’s having struck herself.

[133]     The accused maintained his position that Cst. Stewart added a second clump of hair to the scene.  He maintained that the police all had a grudge against him.  He claimed that the police lied in their evidence.  He maintained his position that the police officers were corrupt.  The accused claimed the police used a piece of liver which had been on his kitchen counter to create the blood spatters found inside his house.  He claimed there was a photograph of the liver being on the counter and that the liver had been in his fridge for his cats.  However, there were no photos of the liver entered as an exhibit.  He claimed that the police deleted the photo of the liver.  The accused also claimed that the 911 call was made up by Telus and the police.  In essence he claimed that the 911 call to the dispatcher is inaccurate, indeed false.

[134]     The accused testified on page 25 of the February 28^th, 2018 transcript, at line 12, the following:

[135]     So, in essence the accused denied having the conversation with the dispatcher as recorded.  He claimed it was all a lie.  He also denied hitting the complainant while she was on the phone with the 911 operator.  He described how the contents of the phone call to the 911 operator had him “baffled”.  He denied telling the 911 operator that he was going to smack her one.  The phone fell to the floor, and so the conversation ended.  The accused further testified that the only words he uttered to the dispatcher were to get “this crazy bitch out of my house”.  He claimed that was the end of the conversation.  He denied saying he was going to punch the complainant.  He also denied saying he was going to kill her.  The accused insisted the 911 call concluded on page 2 of the 5 page transcript, exhibit 2.

[136]     The accused denied making up the story that the complainant was hitting herself.  He denied hitting her on the top of her head with the glass.  He denied holding the glass in his hand in the hallway at the time the police arrived.  He maintained his position that he was sitting in a chair when they arrived.  He did not know where the complainant was when they arrived.  He was not clear in his evidence that she was back inside his residence.  He denied hitting her, even once, but rather he had simply flipped her when she hit herself and furthermore that she had struck the glass from his hand.  He then ejected her from his house.

[137]     Both counsel filed written submissions which I have reviewed.  They also gave oral submissions, which were likewise helpful.  I would like to summarize the essence of counsel’s submissions.

[138]     Firstly, defence counsel invites me to acquit the accused with respect to all four counts.  He relies on the following defences; being s. 35, defence of property and s. 34, self-defence.

[139]     The defence submits that the accused’s evidence is internally consistent, and that his evidence logically accounts for the parties’ respective injuries.  The defence position that the glass became stuck in the complainant’s hair accounts for the cut on the top of her head, as well as the clumps of hair found on the floor.  The accused takes the position that the complainant’s injuries were caused by herself, or accidentally caused by the accused when he flipped her over.  The accused also takes the position that he wanted the complainant out of his residence.  This position is confirmed in the 911 call.  Counsel takes the position that the accused’s evidence raises defences pursuant s 35 and s 34 of the Criminal Code.

[140]     The defence submits that the complainant was evasive and inconsistent in her evidence.  She did not clearly answer questions about her prior statements to the police.  The complainant advised the 911 operator that she lived with the accused.  Counsel submits that statement was not true.  The defence submits that this was an attempt to offer an explanation for why she was trespassing after the accused had told her to leave.  The defence submits that the complainant agreed in cross examination that she was a trespasser.

[141]     The defence submits that the photographs do not support the complainant’s version of the events that she was dragged about by the accused.  The blood on the hallway floor was largely undisturbed.  The complainant took the position that the accused lifted her off the ground in order to drag her by the hair.  However, the defence submits that the complainant chose to tailor her evidence with respect to the alleged assault.

[142]     The defence further submits that the complainant’s evidence that she was successful in defending herself from repeated blows from a broken glass, without getting cut, is nonsensical.  There were no defensive wounds on the complainant’s hands from blocking the alleged blows from a broken glass.

[143]     The defence made much of the complainant’s evidence about how she came to be back in the house after the accused had ejected her.  The complainant agreed she followed the accused back into the house to get her purse.  Defence invites the court to find the complainant lied about being dragged back into the house and beaten after she had been told to leave and was physically removed by the accused.  The defence submits that the complainant became a trespasser when she went back into the residence to get her purse.

[144]     Defence counsel provides several examples of what he alleges are difficulties with the complainant’s credibility.  The defence also submits that the complainant minimized her involvement with the accused.  He submits that their relationship was more intimate than what she had indicated.

[145]     Defence counsel also submits there are difficulties with the reliability of the evidence of the various police officers who arrived on scene.  Defence submits that there is evidence upon which the court can base a finding that the police tampered with the scene, and thus the court should be cautious in assessing the veracity of the police evidence.

[146]     The defence submits that the photographs which the police took of the inside of the house are problematic, especially in terms of the blood spatter patterns on the floor, walls and ceiling.  The defence further submits that the photographs also show different patterns with respect to the glass in the wall.

[147]     The nub of the defence evidence, however, is that the complainant was an unwanted trespasser either when she re-entered the accused’s residence or when the accused told her to leave.  The accused thus argues that any force he used was reasonable in the circumstances.  And lastly, the defence submits that the complainant inflicted her own injuries.  The accused was simply trying to restrain her from inflicting injuries to her facial area.

[148]     The Crown seeks convictions on the four remaining counts.  The Crown submits that the Crown case is persuasive, indeed overwhelming, when one considers the totality of the Crown evidence, being that of the complainant in conjunction with the police evidence.  The Crown invites the Court to reject the defence evidence.  The Crown submits the defence of property and self-defence raised by the accused do not have an air of reality, and furthermore, that the accused’s evidence is not reliable, given his state of intoxication as well as his memory problems.  The Crown further submits that there is no air of reality to the defence position that the police in some way tampered with scene evidence to corroborate the complainant’s testimony.

[149]     I would like to touch on some of the highlights of the Crown’s argument, in conjunction with her supplemental argument regarding the purse evidence.  Firstly, the Crown relies on the contents of the 911 call, which captures a portion of the incident before the police arrived on scene.  The Crown submits that the accused’s position about how the incident occurred ought not to be believed.  The Crown submits that the accused’s testimony does not raise a reasonable doubt, when considering the test in R. v W.D., supra.  Furthermore, the Crown submits there is no believable basis for the accused’s claim that he was acting in self-defence or defending his property.

[150]     The Crown submits that the police evidence that the accused had his hand raised over the complainant at the time of their arrival is consistent with the complainant’s evidence that she was not able to leave the residence.  He had her cornered in the hallway and she could barely see due to the repeated blows.

[151]     In her written submissions, the Crown detailed the complainant’s evidence as to the sequence of the events at the residence.  The complainant testified that the accused’s assaultive behaviour commenced before the 911 call was made and continued afterwards, until the police arrived.  The complainant had significant injuries, including head and facial injuries, soft tissue injuries as well as bruising on her arms, legs and body, in addition to two black eyes.  She lost clumps of hair.  Some of the cuts required stitches.  Her injuries were significant.  She was 130 lbs and five foot three inches tall; whereas the accused was 230 to 250 lbs, and six feet two inches tall.  The Crown submits that the complainant’s injuries are not trifling in nature, and do amount to bodily harm.

[152]     The Crown submits that the complainant had difficulty gauging the specifics of time and space, and where they were in the house.  There was blood dripping into her face.  She could not see properly.

[153]     The complainant did admit that she and the accused had shared some intimacy; and while hesitant to discuss that intimacy in any detail, she did so.  She was fearful of the accused.  She chose not to go to the authorities concerning him prior to the incident.

[154]     The complainant denied hitting herself in her face, and denied that the accused held her down in the way he stated.  The complainant was adamant that the accused prevented her from leaving the property.  She feared for her life and thought she was going to die.

[155]     The complainant consumed a glass of wine.  On the other hand, the accused drank the balance of the wine bottle, and also took 25 sleeping pills.  The accused also admitted to having memory problems.  The police described the accused as being intoxicated.  On the other hand, the complainant was not slurring her words nor stumbling.  She appeared to be sober.

[156]     Cst. Micklefield saw the complainant on the floor of the house upon his arrival.  The accused was standing over top of her.  He had his right hand raised, and was yelling at her.  Cst. Micklefield denied disturbing any of the blood at the scene.

[157]     Cst. Jack described how the accused was crouched over the complainant inside the residence.  She saw an object in his hand.  She recalled hearing yelling.  The complainant was covered in blood and was shaking.  Cst. Jack did observe two gashes on the complainant’s head.  She also described bruising to the complainant’s legs and arms.

[158]     Cst. Noel testified that the accused appeared agitated, and that he had blood on his hands, arms and face.  He described the scene, and a broken drinking glass on the floor that had what appeared to be blood on it.  He also saw a large clump of hair on the floor.  Cst. Noel testified that no other police interfered with the scene.

[159]     The Crown submits that there is no air of reality to the defence of property and self-defence raised by the accused.  The Crown submits that the evidence relied upon by the defence is not reasonably capable of supporting the inferences required for these defences to succeed.

[160]     The Crown submits that the accused dragged the complainant back into his house by her hair.  She wanted to leave but was prevented from doing so.  She was confined inside his residence.  She was attacked further.  She was hit continually while the accused called 911.  Thereafter, the accused continued to strike her.  The accused’s behaviour was not reasonable in the circumstances.  The accused did not have an honest belief that the complainant was using force against him.  The complainant returned for her purse, but that particular action did not justify the accused’s subsequent use of force inside the residence.  The accused prevented her from leaving.  She was only able to leave once the police arrived.

[161]     The Crown further submits that the accused’s actions were likewise not reasonable in the circumstances, when considering the various factors outlined in s 34(2) of the Code, and more particularly, s 34(2)(e) and (g).  The Crown relies on R v. Cinous 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3 in considering the air of reality test.  The Crown submits there is no evidentiary foundation for self-defence, in that there is no evidence the complainant used force at any point in relation to the accused.  There is no reasonable basis for the accused’s claim that he needed to defend himself from the complainant.

[162]     The Crown has also relied on R v. C.A.V. [2003] O.J. No 3247, and in particular, paragraphs 7 to 11.

[163]     The Crown submits that the essential elements of assault causing bodily harm pursuant to s 267(b) of the Code have been made out.  The Crown submits that the complainant’s injuries are sufficient to meet the standard for bodily harm.  The Crown relies on R v. Dixon 1988 CanLII 2824 (BC CA), [1988] 42 C.C.C. (3d) 318 as well as R v. G(T), 1999 CarswellBC 1982.

[164]     The Crown further submits that it has proven uttering threats beyond a reasonable doubt, and refers to several incidents in the evidence.  Firstly, the accused threatened he was going to kill the complainant, while yelling and lunging at her head.  The second threat occurred after he smashed the complainant over the top of her head with the glass.  He then told her was going to beat and kill her.  Thirdly, the accused uttered threats to the complainant during the 911 call, and later, after his arrest, the accused threatened to kill her.  The Crown has drawn my attention to R. v. Clemente 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758.

[165]     Counsel further submits that the Crown has proven assault with a weapon.  The complainant testified she was struck repeatedly with an object that created a gash to the back of her head.  The police also saw the accused with an object in his hand upon their arrival at the scene.  Counsel lastly submits that the Crown has proven unlawful confinement.  The complainant was not able to leave the accused’s residence.  The accused dragged her back into his residence, kept her there and beat her before, during and after the 911 call.  The complainant could not leave, even after the 911 operator told the accused to leave her alone.

[166]     The Crown submits that I should not believe the testimony of the accused.  The Crown submits that the accused’s evidence lacks the hallmarks of credibility and reliability, and that his evidence cannot raise a reasonable doubt.

[167]     The Crown submits that the accused’s evidence was malleable; it changed as he testified in chief and cross examination.  Also, his evidence does not accord with the evidence of the independent witnesses, being the 911 operator and the attending police officers.  The accused acknowledged his memory was faulty.  He had taken an overdose of pills.  He was also intoxicated when the police arrived.

[168]      The accused was adamant that the police had tampered with the crime scene.  And thus, that the police had an animus towards him.  The accused has a criminal record for dishonesty spanning over four decades.  His convictions are a factor for the court to consider in assessing his credibility.  In conclusion, the Crown submits that the accused is not a credible witness and should be disbelieved.

[169]     The Crown argues that I can rely on the complainant’s evidence to convict the accused on the four remaining counts.  The complainant’s injuries are consistent with her evidence, which also accords with the content of the 911 call, as well as the police evidence.  She was found inside the residence, cornered by the accused.  There was blood throughout the hallway, as well as a broken glass, her earrings and the contents of her purse.  The Crown invites me to find that the accused was beating her right up to the time of the police arrival.  The Crown concedes that there are some difficulties in the complainant’s testimony, but that any such difficulties are minor and indeed peripheral, and must be considered in light of the totality of the Crown’s case.  It is also highly speculative that the police had rearranged the crime scene, or painted blood on the complainant’s clothing.

[170]     In terms of her returning to the residence, the Crown submits that the complainant explained that she wanted to retrieve her purse near the end of cross examination by two different defence counsel.  While the complainant testified she went back to get her purse, the time line was unclear as to when exactly she did that in relation to what happened next.  Her answers, found on page 76 of the September 7^th, 2017 transcript, were equivocal.  For example, she testified “I guess so” and that she wanted to leave.  However, her evidence was consistent that she did not want to stay at the accused’s residence.

[171]     Accordingly, the Crown invites the court to reject the accused’s testimony, and as well to find that there is no air of reality to either defence raised by the accused.

[172]     The main issue in this trial is that of the credibility and reliability of the evidence of the complainant and the accused.  As I stated at the outset, I am mindful of the factors set out in W.D., supra.  There is the further issue of the air of reality of the two defences raised, being that of self-defence and defence of property.  Those defences must ultimately be considered in the context of the credibility and reliability of the witnesses’ evidence.

[173]     I must determine whether, based upon the totality of the evidence, the Crown has proven beyond a reasonable doubt the four charges set out in counts 1, 2, 3 and 4.

[174]     I remind myself of the definition of the expression “beyond a reasonable doubt” as articulated by Mr. Justice Cory in R. v. Lifchus CanLII 391 SCC.  The expression was defined in Lifchus in part as follows:

[175]     I would like to turn first to the assessment of the complainant’s testimony and that of the police witnesses.  Firstly, I find the complainant to be both a credible and reliable witness.  I also find that the police witnesses to be credible, including the dispatcher who took the 911 call.

[176]     The complainant was severely injured as a result of an incident at the accused’s residence.  She was sober at the time the police arrived.  Her evidence about what occurred inside the residence, as well as outside the residence, is corroborated by the 911 call, as well as by the evidence of the attending police.  The nature of the complainant’s injuries and the scene evidence is also compelling corroboration.

[177]     I find the 911 call is an accurate recording of the conversation that the dispatcher had with the accused, with the voice of the complainant in the background.  The accused stated in that recording that he wanted the complainant out of his house, and that she hit him.  The complainant also stated that the accused is hitting her and that she does not want to hurt him.  The complainant repeatedly stated she is not hitting the accused.  The accused stated he will knock her and kill her.  The accused stated that the complainant slapped her, so he hit her.  The accused stated he does not want the complainant around and that he should be punching her out right now.  The accused stated that she threw a glass at him.

[178]     It is apparent from the audio of that call that the situation at the residence was dynamic and volatile, with the accused’s doing most of the talking in an angry and aggressive manner.  The complainant sounded intimidated throughout the 911 call.  I do not find that the tape was in any way altered as was suggested by the accused.

[179]     I find that the complainant was inside the residence when the police arrived.  I find the evidence of Cst. Jack and Cst. Micklefield to be persuasive.  I find their evidence to be reliable.  Cst. Jack saw the accused standing over the complainant, who was crouched down inside the residence.  The accused had his hand in the air.  He had something in his hand.  The accused was about a foot or two away from the complainant.  I find the red object that Cst. Jack saw in the accused’s hand was a broken glass.  Cst. Micklefield observed the complainant sitting on the floor inside the residence, with her back to a window.  The accused was standing over top of her, with his right hand raised.  The police officers saw what appeared to be blood on the floor, as well as on the accused and the complainant.

[180]     I accept the complainant’s evidence as to the sequence of events.  I find the accused became agitated, and that the complainant was the one who said she had to leave.  I find the accused started to kick her and threw her to the ground outside the patio doors, telling her to get out of his house.  I find that the accused hit her in the back.  He pushed her to the ground.  I find he was threatening her that he was going to kill her.  I find that he was making fists and lunging at her head.  The accused hit her in the head.  I accept the complainant’s explanation that the accused prevented her from leaving, and that he continued to punch her and to throw her to the ground.  I find that he then dragged her by the hair back into the house.  I accept her evidence that she tried to persuade the accused to let her go.  I find that the accused kicked her and that he continued to punch her in the face.

[181]     I find that after the accused dragged her back into the house, he then grabbed a glass and started smashing it repeatedly over her head.  I accept the complainant’s evidence that she could not see to block the blows because she was bleeding extensively from her head wounds.  I find the accused smashed the glass over the top of the complainant’s head resulting in at least one cut to the back of her head.  I find the accused received a deep cut to his right hand occasioned by the broken glass.  I further find that the accused’s threats to kill the complainant continued inside the house, and also during the 911 call.

[182]     I find that the complainant’s evidence was corroborated by that of Cst. Castonguay, who took photos of her in order to show the extent of her injuries and the presence of blood.  There was blood on her clothing and on her hands.  There was blood on her head and hair.  There was blood on her wrist and right arm.

[183]     Her evidence was further corroborated by that of Cst. Stewart, who observed that the complainant’s scalp and hair were saturated with blood.  There was a cut on her right eyebrow.  There was a red mark on her neck and a laceration on her scalp.  There were injuries on the back of her neck, and the palm of her hand had bruising as did her right arm.  There was a cut on her wrist.  Cst. Stewart described the complainant as being shaken but calm; that she was clearheaded and able to answer questions.  The complainant was not intoxicated.

[184]     I do not accept the defence position that the blood at the scene was added by the police after the fact.  I do not find that the police put blood splatters on the walls and the ceiling.  I do not find the police tampered with the clumps of hair found in the residence.  I find that the defence suggestion that the police tampered with the scene evidence and indeed that the complainant or the dispatcher tampered with the 911 tape, is pure speculation.  There is no reliable evidence upon which to base such a finding.

[185]     The complainant was a petite woman.  She weighed considerably less than the accused.

[186]     I also find that the complainant was only able to leave the residence after the police arrived.  She was not otherwise able to leave.

[187]     I find that the complainant was not particularly clear in her evidence as to when or how she tried to retrieve her purse.  However, that lack of clarity arose from the manner in which the questions regarding her purse were put to her by defence counsel.  She was also not as frank as she might have been about the nature of her relationship with the accused.  She was also not frank with the 911 dispatcher when she said she lived at the house.  There are thus some difficulties with her evidence, but I do not find those particular difficulties to be fatal to her credibility.

[188]     I would like to turn to the credibility and reliability of the accused.  The accused’s evidence was problematic.  I do not find that the accused was a credible and reliable witness.  Firstly, the accused acknowledged that he had a memory problem.  It was only when he reviewed the Crown’s disclosure package that he then remembered what had happened.  The accused agreed he was suffering from double vision at the time of the incident.  According to the police, the accused was intoxicated.  The accused acknowledged he had consumed a number of pills, and at one point had fallen asleep during the time when the complainant was in his residence.  He agreed he had drunk beer and wine, in addition to his taking the pills.

[189]     The accused testified he did not want the complainant coming over to his residence, and yet he gave her some gifts when she arrived.  I do not accept the accused’s evidence that he repeatedly asked the complainant to leave but that she chose to remain.

[190]     I do not accept the accused’s evidence that the complainant started to hit herself in her face, and that he straddled over top of her to prevent her from hurting herself.  I do not accept the accused’s evidence that he ejected the complainant when she started to hit herself.  I find that the accused did detain the complainant in the residence while he was on the 911 call.  I find she was not able to leave, either before, during or after the 911 call.

[191]     I do not accept the accused’s evidence that he got on top of the complainant a second time, and that she struck the glass from his hand.  I do not accept the accused’s evidence that he received the cut to his hand in the manner he described, nor that he accidentally caused injuries to the complainant’s face.  I do not accept his evidence that he then grabbed the complainant and ejected her from his house after he received the cut to his hand.

[192]     I do not accept the accused’s evidence that the complainant was outside, while he returned to the house, having closed the porch doors.  I do not accept his evidence that he then saw the complainant inside his residence, kneeling down into her purse.  I do not accept the accused’s evidence that the purse’s contents were subsequently scattered by unknown persons.  In conclusion, I do not accept the defence position that the complainant returned to the residence in the manner suggested by the accused.

[193]     And as I have already stated, I reject the accused’s evidence that the blood on the wall, floor and ceiling was later staged by the police.

[194]     Furthermore, I do not accept the accused’s position that the complainant was a police informant, and that she had arranged to hurt herself so that the accused could then be prosecuted.  I do not accept the accused’s position that the 911 tape was inaccurate, and indeed had been doctored in some fashion.  I do not accept the accused’s evidence that he did not threaten to kill the complainant when they were together inside the residence, and that it was only when the police arrived that he then uttered a threat about her.

[195]     I would like now to turn to the defences raised by the accused.

[196]     S 34(1) of the Code states the following:

[197]     In R. v. Cinous, supra, the Supreme Court of Canada considered that a defence should be put to a jury if, and only if, there is an evidential foundation for it.  A trial judge has a duty to keep from the jury a defence lacking an evidential foundation, or air of reality.  The air of reality test imposes an evidential burden on the accused.  In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true.  The threshold determination is not aimed at deciding the substantive merits of the defence.  That question is reserved for the jury, or in this matter, for the trial judge.  The question is whether the evidence discloses a real issue to be decided by a jury, and not how the jury should ultimately decide the issue.

[198]     Here, the defence argues that the accused alleged in the 911 call that the complainant had thrown a glass at him during the melee.  The defence further submitted that the complainant assaulted the accused, hit herself, pushed him into the door blinds and smashed a glass in his hand.  Thus the accused was legally bound to defend himself.  The defence further submits that s 34 of the Code also provides the defence of lawful authority to confine the complainant until the police arrived.

[199]     Here, for all the reasons stated above, I do not find the accused’s perceptions and actions to be reasonable in the circumstances.  I do not find the evidence relied on by the defence is reasonably capable of supporting the inferences required for self-defence to succeed.

[200]     Likewise, defence counsel has invited me to consider the defence of property found in s 35 of the Code, which states as follows:

[201]     The defence submits that the accused asked the complainant to leave his residence several times that evening.  The defence further submits that the complainant returned to get her purse after she was ejected, and that she was not legally entitled to do so without further invitation by the accused.  The defence submits that the complainant agreed she had been ejected by the accused.  The defence further submits that the accused had the right to use reasonable force to eject the complainant and/or to hold her until the arrival of the police.  The accused’s evidence is that he did eject her after she had assaulted him, hurt herself and smashed a glass in his hand.  The defence submits the accused’s actions were reasonable in the circumstances, especially given the contents of the 911 call in which the accused stated he was being hit by the complainant.

[202]     The Crown submits that the complainant’s evidence regarding retrieving her purse is equivocal, and occurred near the end of lengthy cross examination by two different defence counsel.  I find the time line is unclear as to when the complainant did return to the residence to retrieve her purse.  The complainant also testified that the accused took her purse from her and threw it against the wall, causing the contents to fall out.  The contents of her purse are visible on the floor of the house, as shown in the police photos.  They were scattered throughout the residence.

[203]     I accept the complainant’s evidence as to what happened to her purse in the residence.  I reject the position taken by the defence.  I do not find that the complainant returned to the residence to retrieve her purse after the incident was over.  I find that the accused confined her inside the residence until the arrival of the police.  I do not find that the accused has given a reasonable explanation that establishes the defence of property.

[204]     I would now like to turn to the law regarding uttering threats.  The Crown has drawn my attention to R. v. Clemente, supra.  Mr. Justice Cory stated the following at paras. 12 and 13:

[205]     I find that the accused uttered threats to the complainant on at least three separate occasions.  Firstly, inside the residence I find the accused threatened the complainant that he was going to kill her and f… her up really bad.  The second threat occurred after the accused struck her over the top of her head with the glass.  I find that the accused did tell the complainant that he would beat her worse, and that he was going to kill her.  The accused was yelling and screaming when he made the threats.

[206]     I find the third series of threats occurred during the 911 call.  For example, the accused stated that: “I’m gonna smack her one”, on page 2 of the transcript.  Then later, he stated: “Yeah, I’ll f… knock you…”.  Then on page 4 of the transcript, the accused stated: “I should be punchin’ you out right now.”

[207]     The accused denied threatening to kill the complainant when they were inside his residence, but he agreed that when he saw her standing outside after the police arrived, that he told her she better not come back to his house because he would probably kill her.  It is clear from the 911 tape and his evidence that the accused was deeply angry with the complainant.

[208]     Lastly, I would like to turn to the law regarding forcible confinement, as set out in s 279(2) of the Code.  That section states as follows:

[209]     I find that the accused did confine the complainant at his residence.  I find that the complainant was unable to leave his residence.  He dragged her back into the house, and kept her there before, during and after the 911 call.  The complainant could not leave while the accused was on the phone during the 911 call.  The 911 operator told the accused to stay away from her.  The accused did not do so, and was found by the police standing over the complainant in the hallway, with his arm raised, glass in hand.

[210]     In conclusion, I do not believe the accused.  His evidence is rejected.  However, I accept the evidence of the complainant as to what occurred at the accused’s residence.  And as I have stated, the complainant’s evidence has been amply corroborated by other evidence.  Accordingly, I am convinced beyond a reasonable doubt of the guilt of the accused on the whole of the evidence.  I convict the accused of counts 1, 2, 3 and 4.