IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT: B.J.O. is before this Court having been charged summarily pursuant to s. 266 of the Criminal Code with common assault of his former common law partner, A.T., on March 3, 2018, at what was then their shared condominium in Colwood, British Columbia.

[2]           Mr. B.J.O. (the “Accused”) denies that the assault as alleged by Ms. A.T. (the “Complainant”) ever occurred. The only other person present at the time of the alleged assault was the infant child, P.O. (the “Child P”). Therefore, the credibility and the reliability of the evidence of the Complainant and the Accused are at issue.

[3]           The task of this Court is to determine whether or not Crown has discharged his burden of proving the offence and each of the elements of the offence beyond a reasonable doubt.

[4]           The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs then, and only then, can the Court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused must be acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person.

[5]           Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is a doubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown must prove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty since that would be an impossibly high standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities. In short, if, based upon the evidence before the Court, the finder of fact is sure the accused committed the offence, then the finder of fact should convict since this demonstrates that the finder of fact is satisfied of the accused’s guilt beyond a reasonable doubt. (See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, and see R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144)

[6]           I must instruct myself that in the trial of criminal matters it is not a question of which witnesses' evidence or version of the events I believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond a reasonable doubt.

[7]           Where there is evidence of an accused that raises a defence, as is the case in this matter, then I must further instruct myself and I must apply to this evidence the well-known process of analysis set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, found at paragraph 28:

[8]           I am also guided by the comments of the Prince Edward Island Court of Appeal in R. v. J.M.H., 2012 PECA 6, [2012] P.E.I.J. No. 10, at paragraphs 30 to 31:

[9]           The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J. No. 2735, adds a fourth step to the W.(D.) analysis, namely, if, after consideration of all of the evidence, the court is unable to decide whom to believe with respect to the central issue in a prosecution, then the accused must be acquitted. Josiah Wood J.A. (as he then was) suggests that logically this ought to be second in order in the W.(D.) analysis.

[10]        It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times or to achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. (See R. v. S.(J.H.), 2008 SCC 30 (CanLII), [2008] 2 S.C.R. 152.)

[11]        As noted above, in this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility and the reliability of the witnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence. In so weighing the evidence, I may reject or accept some or all of the witness's testimony after having taken into account a multitude of factors which include, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or external consistency.

[12]        I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or may present upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony.

[13]        It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the other witness. (See R. v. Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094.)

[14]        Again, as noted above, I must have regard to the credibility and to the reliability of each witness's evidence. In R. v. C.(H.), 2009 ONCA 56 (CanLII), Watt J.A. explained the difference between credibility and reliability at paragraph 41:

[15]        There are many factors to take into account when assessing a witness's evidence, some of which are:

[16]        In assessing the credibility and the reliability of those witnesses who have provided the conflicting evidence about the alleged offence, the testimony of each of the witnesses can be considered from three perspectives:

[17]        In the case of R. v. Cuhna, 2015 BCPC 60 at paras. 5 and 6, the Court provides a useful review of the factors to be considered when assessing the testimony of a witness from these three perspectives:

[18]        For the purposes of these reasons I have broken the evidence into three categories.

[19]        First, what I view as non-controversial background facts that surround this case. Next is the evidence adduced by Crown in support of the Crown’s theory of the case for the most part provided by the Complainant? Last is the evidence adduced by defence in support of their theory of the case which has been provided by the Accused?

[20]        The Complainant works as a server on a graveyard shift at a 24-hour restaurant in Victoria. Her usual working hours are from 10 p.m. until 7 a.m., but often she is accommodated by her fellow employees such that she can depart work around 5:30 to 6 a.m. She generally works each night from Tuesday to Saturday with Sunday and Monday off.

[21]        She and the Accused were in a relationship together on the mainland before they both moved to Victoria. The Accused is a construction worker. He obtained limited work while the parties resided together in Greater Victoria. The parties and Child P were residing in a condominium complex located in Colwood, BC (the “Residence”).

[22]        The Residence is a two-bedroom unit on the first floor of a multi-unit complex and the Residence was on a single level with an open living space and a patio door leading to the exterior patio and an exit door leading to the common hallway.

[23]        As a result of an interaction between the Accused and the Complainant on March 3, 2018, at the Residence, and as a result of text communications following that interaction between the Complainant and her work colleague, J.R., J.R. contacted the RCMP and made a domestic violence report. Constable Kyle Ross was dispatched and arrived at the Residence in the late afternoon of March 3, 2018, whereupon he obtained a statement from the Complainant.

[24]        The parties have been residing separate and apart since March 3, 2018. Child P continues to reside with the Complainant.

[25]        As of January 8, 2019, the Complainant had, on December 10, 2018, obtained a Protection Order under s. 183 of the Family Law Act against the Accused (the “Protection Order”) requiring him to stay 50 metres away from her. At the time of the alleged incidences giving rise to the charges, there were no Family Court orders in existence with respect to the Accused and the Complainant or with respect to Child P.

[26]        In the course of her testimony, the Complainant made it clear that she was anxious about testifying and that, although her memory is generally good, her memory is “fuzzy” on some of the events giving rise to the charges. She attributes that to her levels of fatigue being experienced at the time of the alleged assault due to minimal sleep following a night at work (that being the last of six straight graveyard shifts) and compounded by other sleeplessness because of the infant's sleeping patterns and demands of the then [omitted for publication] year old Child P for whom she was the primary caregiver.

[27]        On the evening preceding the events giving rise to the charges, the Accused was left to look after Child P.

[28]        The Complainant says that she and the Accused had planned to travel for a family visit to the Lower Mainland of British Columbia via a public transit bus and the Swartz Bay to Tsawwassen ferry. The plans called for pick-up by a family member of the Accused at Tsawwassen. She says the plans made earlier that week were that on Saturday, March 3, 2018, the Accused was to transport himself, Child P, and their luggage via taxi and meet her at her place of employment by 5:45 a.m. in order for them to be able to catch the transit bus to Swartz Bay in time to catch the 7 a.m. ferry.

[29]        She says that the Accused was left with the sole responsibility of packing his own suitcase since she had packed everything else for her and Child P before heading to work on the Friday night.

[30]        Before she departed for work that Friday night, she texted the Accused to return back to the Residence from visiting the neighbours, who lived on the third floor above, to assume his child-minding responsibilities.

[31]        When he returned to the Residence, she again reminded him several times of the responsibility and characterized it as “his opportunity to show that he could take responsibility”. She departed for work around 9:30 p.m.

[32]        When the Accused and Child P did not arrive by 6 a.m. at the restaurant, she called the Accused and was finally able to make telephone contact. She testified that he screamed at her over the phone in an angry manner and was not making sense. She could not remember what he was saying because he was being so erratic and she did not listen to him. She said she was embarrassed for him and his behaviour. She became concerned about the safety of Child P because of that behaviour.

[33]        She rushed home by taxi and entered the Residence around 6:15 to 6:30 a.m. What she found was the Accused holding Child P. Surprisingly, the Accused appeared to be calm. He and the child were playing and both seemed to be happy.

[34]        The Complainant says that they discussed their plans to go to Vancouver, stating the Accused seemed to be angry with himself for not being prepared and ready to depart as previously arranged. The discussion became emotionally charged. She could not recall what was said.

[35]        The Complainant said that she then went into a mode to try to figure out “how to fix” the resulting travel schedule problem. The Complainant called the family member on the mainland around 7:15 a.m. to reschedule the pick-up such that they would now catch the 9 a.m. ferry using the same combinations of taxis and public transit to get to the Swartz Bay Ferry Terminal. They only had a very short timeframe for the Accused to pack his suitcase and to ready himself to leave, but he was unable to do so in a timely fashion. While she was waiting for the Accused, the Complainant mixed herself two alcoholic beverages from a bottle that the Accused had brought. Her drink of preference is wine and she commonly has a drink after returning from her graveyard shift before she goes to bed. She believes that she was consuming the alcohol between 6:45 and 7 a.m. and that her consumption occurred prior to any physical altercation between them. She testified that she felt more exhausted and fatigued rather than affected by the alcohol saying there was only an ounce to an ounce and a half of alcohol in each drink.

[36]        Thereafter, discussions between the Accused and the Complainant got heated. They did not leave the Residence to follow the reorganized travel schedule. She estimates that, at this point, it was around 8 a.m. or 8:30 a.m.

[37]        The Complainant says that, at some point, the Accused admitted to her that he had been doing drugs with the upstairs' neighbour both before she left for work and while she was caring for the Child P. To enable him to be out of the Residence and watch over Child P, the Complainant believed that the Accused utilized the baby monitor. She never saw him consuming drugs or alcohol, but expressed the view that she recognized his indicia of drug consumption when he returned from the upstairs' neighbour.

[38]        The Complainant says that she is “fuzzy” on how it got started, but the next thing she recalls is that she was lying on the floor in the living room and the Accused was hunched over her, but she does not recall him sitting on her or feeling his weight. He was choking her with both hands, hard enough that she was afraid. She was unable to recall the duration of the choking, but said that it seemed like a long time. She said she had trouble breathing, but did not black out.

[39]        Therefore, she reached up and scratched the left side of his face with her right hand in order to get him to release the choke and to get him off and away from her. At that point, he stood up and went to the bathroom down a hallway some five or six feet away to examine himself in a mirror. He returned within a matter of 10 to 15 seconds and expressed that he was angry and upset about his face scratches because he had a new job which he was scheduled to commence shortly. She said that this withdrawal by the Accused to examine himself in the mirror occurred two or three times and, each time, he again choked her and, each time, when he returned, he told her to look at his face and he expressed anger and concern about the face scratches she had inflicted upon him.

[40]        She only scratched him on the first occasion, although she stated in cross-examination that she was not aware of how deep the inflicted scratches were and later conceded in cross-examination that she may have scratched him more than once. She testified that he finally stopped choking her when he seemed to realize that he was choking her. She stated that she was shocked at what was going on. She further testified that she believed she was unable to get up off the floor in the time between his return trips to and from the bathroom mirror.

[41]        She was initially concerned about calling out or yelling for help in a loud voice because she did not want to disturb the neighbours surrounding the Residence. She heard Child P who was on the adjacent couch in the living room crying. She did not say anything to the Accused. She then became more fearful and realized the seriousness of the matter and, therefore, all the while sitting on her bottom or crawling, she made her way to and opened the patio door three or four inches and tried to get out of that patio door and started to shout for help. She was able to get her legs outside, but he pulled her back inside the Residence and he closed the patio door, but she does not recall what he may have said to her as he pulled her back in.

[42]        She says that, at that point, she got to her feet, but does not remember getting up, but does remember scooping Child P up and then swiftly trying to make her way to the front door, but he was a couple of steps in front of her. He blocked her at the front door and took her cellphone away from her and told her that “if she calls the cops” he would murder her. She did not call the police or try to leave the Residence after that nor did she call for help out loud or try to use any phone for that purpose. She said she took the Accused’s threats of harm to her seriously.

[43]        She said that, at that point, she was still trying to absorb what had happened so quickly. She went to the bedroom and told the Accused that he would have to leave or she would call the police. She observed that the Accused was in the process of packing his suitcase apparently with the intention of leaving the Residence. She recalled that there was a brief confrontation in the bedroom as she tried unsuccessfully to get her cellphone back from the Accused. At that point, she says Child P was with her.

[44]        She then recalls being overwhelmed by fatigue and “was beyond exhaustion”, having worked all night, being the last of six straight nightshifts and having only gotten about four hours of uninterrupted sleep the previous day. Accordingly, she fell asleep on her bed in the bedroom while he was packing his bag. She could not recall where Child P was at that point, but recalls he was beside her when she fell asleep.

[45]        She testified that normally she would be sleeping for an hour or so shortly after she returned home from work and then between 7:30 and 9 a.m. On this occasion, she woke up briefly and heard the Accused say he was taking Child P to McDonald’s restaurant. She simply nodded.

[46]        Later, she awoke and says that Child P was sleeping and the Accused was on the couch. At some point, the Accused said words to the effect that he would send somebody for his personal belongings. She did not recall any further verbal exchanges with the Accused.

[47]        The Complainant went into the bathroom and texted her friend and work colleague, J.R., to J.R.‘s cellphone, but the Complainant cannot recall how she obtained possession of a cellphone to complete that texting. Her evidence on that point was quite unclear, suggesting in cross-examination that the phone she used may have been another older cellphone than the one taken from her by the Accused. She testified that, by contacting J.R., she was seeking a place to stay that night with Child P away from the Accused. She says she did not ask J.R. to call the police. However, when she got out of the shower, she had received a text from J.R. indicating that J.R. had made a report to the police about the incident between the Accused and the Complainant. Child P was still in the Residence, but she could not recall where Child P was when she went into the bathroom.

[48]        Shortly thereafter, while the Complainant was still in the bathroom, she heard the front door slam and presumed that the Accused had departed. Shortly thereafter, there was a knock at the front door and it was an RCMP member who, as it turned out, was Constable Ross. When she came out of the bathroom, she was not sure where Child P was, but heard noises which led her to believe he was either sleeping or had been put down for a nap in his room.

[49]        She testified that she was still exhausted, but she spoke to Constable Ross and provided a 12-page statement to him around 4:30 p.m. even though she testified she was not ready to do so. She did not recall Constable Ross photographing her on his first visit to the Residence. Ultimately, in cross-examination, and based upon the clothing she was wearing in the two photographs entered as Exhibit 2, she acknowledged that the depiction of her in those photographs could have been taken during Constable Ross’s first visit. The photographs of her taken on that first occasion show her head, face, neck, and chest area.

[50]        She stated in examination-in-chief that, as a result of the physical altercation, she received bruises on her neck and face and that her body ached such that she was required to obtain a massage treatment, probably the following Wednesday on her day off.

[51]        Constable Ross returned unannounced the next evening of March 4, 2018, at a time that the Complainant put at around 8 or 9 p.m. and awoke her from her sleep. Constable Ross took photographs of her head, face, neck, and chest areas. Although she had the opportunity to attend the West Shore RCMP detachment to provide a supplementary statement, she did not do so.

[52]        She testified that the Ministry of Children and Family Development had closed their file on her, which I infer arose out of the alleged incidences. The Complainant testified that she obtained the Protection Order stating because she was concerned about her own safety arising out of the assaultive actions of the Accused. When questioned in cross-examination about her timing of obtaining the Protection Order she indicated that it was coincidental with the timing of this trial and rejected the defence’s submission that she only recently obtained the Protection Order to bolster her credibility and to give her allegations some substance in this trial. In response, she indicated she had only been able in recent months to obtain a lawyer to bring on the Protection Order application.

[53]        The Complainant testified that she had never at any point threatened the Accused, nor had she consented to the Accused choking her, nor did she recall any physical contact with the Accused in any form prior to the incidences of choking.

[54]        On cross-examination and when questioned about the second set of photos (being Exhibit 1), taken by Constable Ross the day after the alleged physical interaction giving rise to the charge, she admitted that there was no visible injuries to her face and stated that she was mistaken if she had indicated in her earlier evidence that she sustained facial injuries.

[55]        She also agreed that there were no red marks around her neck area evident in the second set of photos (being Exhibit 1), but did point to what she stated was the swelling upon the right side of her neck. Red blotches were clearly visible on her chest in that set of photos.

[56]        Similarly, when she was presented in cross-examination with the first set of photos (being Exhibit 2), that although she did not remember them being taken, she confirmed that her chest looked like that as depicted in the photos later in the day of March 3, 2018, following the alleged incidents and that the red blotches were less pronounced than in the second set of photos (being Exhibit 1).

[57]        In cross-examination, she further:

[58]        The Complainant was asked about the Defence’s theory of the case that was submitted to her and provided the following responses:

[59]        In re-direct examination, she stated that the Accused was not working in or around the time of the incident, He had trouble for a considerable period of time keeping a steady job and, accordingly, he did not have any money to give her and he did not provide her with any financial support.

[60]        Ms. J.R. (again herein referred to as "J.R."), and being a work colleague of the Complainant, has known her for about two years. She does not know the Accused. J.R. works the dayshift from 6 a.m. to 2 p.m., five days per week. J.R. testified that she received a text message from the Complainant around 4:30 p.m. on March 3, 2018. It was about a domestic violence and choking allegation made by the Complainant against the Accused. As a result of that text, J.R. immediately called the police and reported the incident as she understood it from the text that she had received.

[61]        J.R. recalled seeing the Complainant the day following her report to the police. J.R. noted what she described as scratches on the right side of the Complainant’s neck and a broken blood vessel on the right side of her eye. J.R. said she was surprised that the Complainant came to work and that she appeared “shaken up quite a bit”.

[62]        A statement was provided to the police by J.R. at a much later time after J.R. had made her report to the police. She agreed that her police statement did not contain any reference to the observed injuries, stating that she was not asked any questions about those observed injuries. Much of the attending police officer’s time was spent reviewing and trying to obtain copies of the texts exchanged between J.R. and the Complainant.

[63]        Constable Kyle Ross has been a member of the RCMP since March of 2014. He has considerable experience with domestic assault cases. He testified that he was dispatched around 4:13 p.m. on March 3, 2018, and arrived at the Residence very shortly thereafter. He met the Complainant whom he described as being physically upset. He took a statement from her.

[64]        He saw no indication of a struggle in the Residence. He testified that the Complainant was sober. She appeared to have marks around her neck. He photographed them on his second attendance on March 4, 2019, being the next day (such photos being Exhibit 1). He stated that the marks were more evident the next day than on the initial attendance at the Residence and stated that this was quite common.

[65]        Constable Ross also testified that, notwithstanding his efforts to contact the Accused, he was unable to get the Accused to return his calls and on one occasion he got through on the Accused’s cell number, he believes that the Accused hung up on him. Accordingly, he was unable to get a statement or to see the Accused in person.

[66]        The Accused testified as the sole witness for the defence case. The Accused is 33 years of age. He has a qualification as a [omitted for publication] and has between 10 to 15 years' of experience in that vocation. He is presently employed on the BC mainland.

[67]        The Accused's evidence is that he and the Complainant had been experiencing difficulties both personal and financial in their relationship and had been apart and then resumed their relationship after the birth of the child. These strains continued around the time of the birth of Child P. This was the first long-term relationship that the Accused ever had.

[68]        The Complainant moved to Vancouver Island after the birth of Child P. The Accused testified that he followed to Vancouver Island about four or five months later. He testified that they reconciled, but in and around the time of the alleged events, there were continuing issues in their relationship which had again surfaced. He testified that their relationship was "toxic" and “everybody was miserable”. He indicated that there was frequent yelling and arguing. He indicated that the couple had been waitlisted for counselling.

[69]        The Accused testified that he had difficulty finding steady work on Vancouver Island. He said that he willingly provided childcare to Child P while the Complainant was at work. He testified that he followed the precise routines of the Complainant for Child P and adhered to her very high standards of organization. He stated that he enjoyed caring for the Child P and he was doing so on the day in question the events were alleged to have occurred.

[70]        The Accused testified in both chief as well as in cross-examination that he often had difficulty recalling details and specifically had some difficulties recalling some of the smaller details about the day in question and had difficulty with some of the timeframes and the sequence of events.

[71]        He testified that the recalled that on the day in question the Complainant had called him from work prior to arriving home. He testified that he had no recall about the nature of discussion, nor did he have any recall about anything that would have alarmed the Complainant about his state of mind.

[72]        It was the Accused's testimony that on the day in question, he had made the decision to leave the Complainant and Child P and to “call it quits”.

[73]        While the Complainant was at work, he packed his bag and waited for her return from work. He initially indicated that she was working the early morning shift which started around 5 a.m. and continued to noon. In cross-examination, he corrected himself and agreed that it was likely in the early morning that she returned from her shift to the Residence.

[74]        The Accused's testimony was that when the Complainant arrived home, which he estimated to be initially around noon, she saw his packed bags. He told her about his decision and said he was leaving and that they needed time apart. In response, he testified, "She lost it," and kept saying she needed my help. He indicated that he told her that their separation was not forever and suggested that there may be a reconciliation in the future.

[75]        The Accused stated that the Complainant started to drink wine which he said added “fuel to the fire”. She called him a “coward" and continued to yell at him. He said that during the course of this interaction, she poked him on him chest. She continued to push him. He indicated that there no resulting marks from that contact. He said that they argued about a number of their usual issues that plagued their relationship and also their financial problems which included his lack of work, lack of money, and problems paying bills. The other theme was the fact that they were “always struggling”. This argument and interaction continued for some time.

[76]        It was the Accused's evidence that that the Complainant threw a couple of things at him. At that point, he brought a couple of his bags to the door as part of his departure. She grabbed his bags and pushed him with a few “good pushes”. He says that he left the Residence without his bags to go for a walk to “cool off”. He estimated that he departed from the Residence around 12 noon to 2 p.m. He said that he went to buy cigarettes at a corner store at [omitted for publication], apparently not too far from the Residence. He said he ended up walking around “everywhere” for a good deal of time. He was unable to recall the exact route he took, but recalled passing by a local golf course and crossing a bridge near a local military base, apparently while walking towards the City of Victoria.

[77]        He testified that he sat in a park for a period of time and, during his contemplation, concluded that it was not going to get better. Therefore, he went to the catch the Swartz Bay to Tsawwassen ferry by means of a bus. He was unable to recall which bus stop he boarded the bus or the time. He indicated that he completed his travels to the mainland by way of ferry. Again, he was uncertain about the precise timeframe, but did testify that he never returned to the Residence. He stated that he obtained his bags through another resident of the complex, but was not able to provide the name of that individual.

[78]        The Accused admitted that he was getting angry with the Complainant as their argument escalated and just before the alleged pushing that was administered by the Complainant. The Accused denied that he choked the Complainant or grabbed her or struck her or assaulted her in any fashion. He further denied that he had consumed any alcohol or drugs prior to the altercation.

[79]        In cross-examination, he admitted his criminal record going back to 2007 to 2010 including serious offences in 2008 for robbery and some other crimes of dishonesty. He suggested that these criminal convictions had occurred at a much different time in his life than he is at present.

[80]        He admitted that he could not provide more exacting details about the length of time that the argument took place in the Residence which then ended with the Complainant accosting him. He conceded in his cross-examination evidence that the time frame appeared to be longer than he had originally stated in his examination-in-chief.

[81]        He stated that he believed that the Complainant was incorrect about the travel plans to head to the BC mainland on the date in question. He said it was common for them to go on long weekends and that if they had made plans, it was likely to be on the Easter weekend. The weekend of the alleged events was not the Easter weekend.

[82]        Crown submits that the Crown has discharged its burden of proving the offence beyond a reasonable doubt. In that regard, Crown submits that the evidence of the Complainant should be preferred over that of the Accused. Crown points to what it says is her honest demeanour and forthrightness in presenting her evidence and by her use of the words "trying to do her best". Crown suggests that, in the course of providing her evidence, she took her time and agreed with counsel appointed to conduct cross-examination when she felt it was appropriate to do so. Crown says she took extra time to answer questions while admitting that she could not recall certain things about the events as they unfolded.

[83]        The Crown says that some regard should be made by the court to the fact that at the time that the events occurred she was significantly short on sleep. She was highly fatigued, having worked the extra shift. The Crown also says that the events that surrounded this incident were very traumatic and specifically citing the choking incidents to which the Complainant had testified about.

[84]        Crown suggests that the evidence provided by the Complainant was externally consistent with other evidence. Specifically the evidence about being choked is corroborated by the evidence observed by the police officer that is what purports to be injuries in and around her neck area; Crown points to the observations made by J.R. of what are alleged to be the injuries sustained in the assault by the Accused.

[85]        The Crown also argues that the evidence of the Accused should not be afforded the same level of credibility and reliability. The Crown characterized the Accused as being evasive and dodging around answers, relying on what was clearly described by the Accused, as him having a poor memory. Crown specifically points to the fact that when the Accused was being cross-examined during his evidence, he conceded incredibly, in the view of the Crown, that he had not thought about some of the events notwithstanding the fact that he had had several months in order to think about the events and to prepare for his testimony.

[86]        The Crown also points out that the cross-examination of the Accused on where he went following his departure from the Residence is unbelievable. It lacks the necessary details and again should be discounted. Hence, on the whole of the evidence, Crown says that they have met the necessary test for a conviction to be entered.

[87]        Crown does not rely on any authorities other than the decision of W.(D.).

[88]        The defence submission was provided by the Accused on his own behalf; the Accused pointed to several inconsistencies in the evidence of the Complainant. In particular, he points to the oddities of the Complainant not making any phone calls to report the event to the police, but rather only texting her friend, J.R., who then made the police report.

[89]        The Accused also pointed to the cross-examination of the Complainant with respect to the photographs and the lack of the apparent injuries as had been described by the Complainant in her evidence; the visibility of those injuries is contested by the Accused.

[90]        Also, there was a defence submission that what should be clear from the evidence is that the Complainant, fueled by a consumption of alcohol following her lengthy periods of work, then became abusive towards the Accused and saying that that is more consistent with the whole of the evidence. Accordingly, I'm being asked to dismiss the charges.

[91]        The evidence of J.R. and Constable Ross was provided in a straightforward manner. Constable Ross made notations, took statements and, at the outset, he went back and got additional information by way of the second visit unannounced to the Residence. The evidence of Constable Ross is both reliable and credible. However, there is clarity from that evidence that although some marks were evident, there is no indication of any disruption within the Residence, which would lead one to believe that there had been a significant domestic assault occurring in the Residence.

[92]        The evidence of J.R. was based on observations made some time after the fact. There is evidence about blood in the eye and some other injuries. However, there is nothing in the photographs that indicate that shortly after the events that those types of injuries were evident in the photographs. Accordingly, I accept the evidence of J.R. about having received the text from the Complainant and having placed the call to the police because of her great concern about the safety of the Complainant.

[93]        The Complainant delivered her evidence in a relatively straightforward manner and was relatively consistent in her evidence both in chief and in cross-examination. She self-corrected in an appropriate fashion. She was not combative with Mr. Watt when he appropriately challenged her in cross-examination.

[94]        The injuries depicted in the photographs do not show bruising that strongly corroborates being choked three times by the Accused using both his hands. The marks are more in her chest area. The Complainant did not report the incident to the police and only reported to J.R. to the effect that she was seeking a place to reside away from the Accused.

[95]        The Complainant did indicate that she had difficulty recalling some of the facts and in doing so she relied on her extreme exhaustion from both looking after Child P. and completing six nights of graveyard shifts. Surprisingly, she suggested that her memory about the events is better now during the course of the trial than it was when she gave her police statement.

[96]        There is some concern about the evidence that she provided when she indicated that she had problems getting the cellphone back from the Accused and then when presented in cross-examination about how she managed to text J.R. she then suggested that it was from an old phone that she had in her possession. In my view, this is somewhat challenging to accept.

[97]        There is also a question raised by her evidence about how she allowed the Accused to look after Child P after what she said was the choking incident on three separate occasions. She asserts that she fell asleep after the Accused had tried to choke her in front of the child on these three occasions. That does cast some concerns about the overall veracity of her story.

[98]        I also have concerns about the fact that she did not take any steps, at any point, to directly inform the police of what, by her account, would have to have been considered a terrifying experience. I note some concerns about amplification in her evidence about certain events occurring during the course of the alleged assault that were not contained within the police statements that she previously provided.

[99]        She did provide a credible response on why she delayed during much of 2018 to get a Protection Order.

[100]     When assessing the credibility and the reliability of the Accused, I have to take into account that the Accused was self-represented throughout most of the trial. Generally speaking, he held to his story about the events, how they occurred and his denial of committing the assault throughout his examination in chief and then under focused and vigorous but appropriate cross-examination. He did admit a lack of recalling the specific details and timeframes, but he presented a reasonable explanation of what triggered the arguments that led to his departure from the Residence.

[101]     He did provide an explanation that he received what he believed to be a call from the RCMP, but was unable to deal with the call because of difficulties hearing the individual at the other end of the line.

[102]     Clearly, there are deficiencies in his evidence about his lack of recall on specific questions put to him by Crown. However, overall, there is a general consistency both internally and externally about the basic events that took place at the time of the alleged assault. Throughout the cross-examination and throughout his examination-in-chief, he attempted to answer questions. I do not consider his lack of recall of certain of the events to be evasive in nature. I do accept his general lack of sophistication and his apparent lack of understanding about the legal process and the fact that he did not appear to have obtained adequate legal advice before dealing with this matter substantially on his own.

[103]     The Alberta Court of Appeal's recent decision in R. v. Ryon, [2019] A.J. No. 111, 2019 ABCA 36, provides some very useful guidance in the application of the W.(D.) instruction and which I have followed in this case.

[104]     In applying the first prong in the W.(D.) instruction, I am mindful that the instruction is to apply to all exculpatory evidence that the Crown must negate beyond a reasonable doubt, whether found in the Crown or the defence's case. I am further mindful that the instruction applies only to the exculpatory evidence in both the Crown and defence's case and not to evidence that is inculpatory or neutral. (See R. v. Ryon at paragraphs 29 and 30 and at paragraph 49.)

[105]     In applying the second prong of the W.(D.) instruction, I am further mindful that when assessing exculpatory evidence as the finder of fact, I need to understand that I have three choices, namely, first, I may accept the evidence or, second, I may reject it or, third, I may find myself in the "middle ground" of being unsure whether the evidence is true or false. If I find myself in this so-called "middle ground", that usually means that I have a reasonable doubt and, therefore, that benefits the accused person. (See R. v. Ryon at paragraphs 35 to 38).

[106]     In applying the third prong of the W.(D.) instruction, as the finder of fact, I must attempt to resolve the conflicting evidence bearing on guilt or innocence of the accused person, mindful always that a trial is not a credibility contest which requires the finder of fact to decide that one of the conflicting versions is true. Again, if, after careful consideration of all the evidence, as the finder of fact, I am unable to decide whom to believe, I must acquit. (See Ryon at paragraph 40.) I must also instruct myself that, as the finder of fact, if I completely reject the accused person's evidence (or, where applicable, other exculpatory evidence), I may not simply assume the Crown's version of the events must be true. Rather, I must carefully assess the evidence I do believe and decide whether the evidence persuades me beyond a reasonable doubt that the accused person is guilty. Mere rejection of the accused person's evidence or, where applicable, other exculpatory evidence cannot be taken as proof of the accused's case.

[107]     Applying the W.(D.) formulation and the guidance of R. v. Ryon assists me in properly determining whether the offence of assault has been proven in this case beyond a reasonable doubt.

[108]     In this case, I find myself in the so-called "middle ground" of being unsure of whether the evidence that is before this court and being relied upon by Crown, and mainly as provided by the Complainant is, in fact, true or false. I find that the lack of ability to move from the middle ground and determine that I fully accept the evidence of the Complainant in this case means that Crown has failed to discharge its burden of proving the offence beyond a reasonable doubt.

[109]     I come to that conclusion based upon the lack of what appears to be anything resembling the type of injuries that the Complainant says she sustained from being choked and which almost rendered her unconscious; such injuries were not apparent in any of the photographs either taken at a later time on the day of or shortly on the following day of the alleged offence taking place. Also the actions of the Complainant of not reporting the matter to the police or seeking outside help other than to contact J.R. about the events and to seek accommodation; the Complainant not taking any action that one would normally expect in terms of protecting a child if she was fearful of her own safety and presumably the safety of Child P. These are all factors being relied upon in coming to my decision.

[110]     In this case, and on the basis of my assessment of all the evidence and the application of the W.(D.) formulation, I conclude that Crown has not negated the reliable exculpatory evidence that I have before me, beyond a reasonable doubt, and thus has not met its evidentiary burden.

[111]     Based on all of the above, I find that the Accused is not guilty of the charged offence.

[112]     That concludes my reasons for judgment with respect to this matter.