IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Fifteen-year-old SH is before the Court charged with assault causing bodily harm to and assault with a weapon of MVT. The genesis of the altercation giving rise to the matter before the Court is an ongoing feud between two friend groups of adolescent girls attending [omitted for publication] Secondary School. The accused, SH, belonged to one group and the complainant, MVT, belonged to the other. Like most modern young people these friend groups used electronic communication technology and various social network platforms to communicate. Sadly, some members of these friend groups also used social media to intimidate, humiliate, and distress others.

[2]         On Tuesday, December 11, 2018, on what began as a dispute between their younger sisters resulted in a physical altercation between SH and MVT. At that time SH was 14 and in Grade 9; MVT was 15 and in Grade 10. Either by accident or design, SH and MVT encountered each other in the high school’s girls’ bathroom. SH had gone there to eat her cup of instant ramen noodles she had recently prepared; MVT went there to use the facilities. The girls swapped petty insults and told each other to “fuck off.” MVT accused SH of making fun of her appearance and her family. SH insisted it was not her but her younger sister who made these derogatory remarks. Both girls began video-recording the other on their cell-phones. Within minutes of their encounter, SH threw the hot contents of her cup of noodles at MVT causing serious second and third degree burns to MVT’s chest.

[3]         There is no issue that on December 11, 2018, SH threw the hot contents of her cup of noodles at MVT. There is no issue the hot noodles caused MVT serious bodily injury. The following issues remain in dispute:

[4]         This matter came before me for trial on July 15, 16, and 17, 2019, and on March 3, 4, and 5, 2020, in [omitted for publication] Provincial Court. I heard from Crown witnesses Corporal Fraser Bjornsen, MVT, SML, and PB. I heard from Defence witnesses, SF and SH. I received into evidence the following Exhibits:

[5]         In these Reasons for Judgment I will generally refer to the young witnesses by their first names. In doing so, I mean no disrespect or undue familiarity. I do so for narrative convenience and because this is how they referred to one another.

[6]         My decision in this matter, originally scheduled for April 7, 2020, was postponed until today due to the COVID-19 crisis.

[7]         On July 15, 2019, the first day of trial, the Court conducted a s. 715.1 Criminal Code voir dire to determine the admissibility of MVT’s video-recorded statement to the police made on December 12, 2018. Section 715.1 provides that a video-recorded statement of a witness who was under the age of eighteen years at the time of the alleged offence “is admissible in evidence if the victim . . . while testifying, adopts the contents of the video-recording, unless the presiding judge is of the opinion that admission of the video-recording in evidence would interfere with the proper administration of justice.” After reviewing the video-recording and hearing from the police interviewer, Corporal Fraser Bjornsen, and the Complainant, MVT, both in direct and cross-examination, I concluded the video recorded interview was admissible as part of MVT’s direct evidence and the video-recorded statement and the transcript of that statement became Exhibits 2 and 3 on the trial proper. I held the Crown satisfied the following five prerequisites for admissibility:

[8]         The matter before the Court involves a number of students attending [omitted for publication] Secondary School (“SS”) in [omitted for publication], BC, including:

[9]         All of the students cited above reside with their families in the [omitted for publication] area. SH, SD, SML, and SF belonged to one friend group (“SH’s faction”), and MVT, GV, and JYVT to another (“MVT’s faction”). This is not to suggest that either SH or MVT headed either of these friend groups.

[10]      SF dated SH and SD’s brother RLS; SML dated their brother RCH. SH’s faction also included AS, MJ, and LS. MVT’s faction included STN, RSM, and ACT. Only SH, MVT, SML, and SF testified in the trial.

[11]      MVT’s parents, JVT and PVT are both teachers. In 2018, JVT taught at SS.

[12]      In the fall term of 2018, SS was beset by a spate of “Bro fights” or consensual “friendly fights” which were popular on YouTube at the time. SS administrators considered this activity unsafe and suspended students involved in Bro fighting while at school.

[13]      Occasionally SS students were either the victim or perpetrator of cyberbullying, and sometimes both. Using various social media platforms such as Facebook, Instagram, and Snap Chat, the offending students published comments intended to denigrate, intimidate, or humiliate their nemesis. These messages, sometimes banal, sometimes malevolent, inevitably played out in the students’ interactions at school. Students often brought screenshots of the offending posts to the attention of SS’s Principal and Vice-Principal. Unfortunately, the school administrators had limited jurisdiction to deal with the communications if they occurred off SS premises.

[14]      The animosity between the two factions is rooted in a conflict which festered between MVT and SF since MVT entered SS in Grade 8. In 2017 the hostilities expanded to include SD and JYVT, whose friendship soured over a boy. On December 8 and 30, 2017, MVT sent threatening messages to SD over Instagram to stop bullying JYVT (see Exhibit 8).

[15]      MVT testified that in November 2018, members of SH’s faction began making rude, nasty, and hurtful remarks to MVT’s faction in the SS hallways. MVT did not know what incited this verbal abuse, but supposed SF the catalyst.

[16]      On December 7, 2018, AS posted to her Facebook page a photograph of someone with pronounced eyebrows (see Exhibit 4). The photograph is immediately followed by a post from SD which states, “reminds me of one of the [VTs] lmfaoooo.” “LMFAO” is an acronym for “laughing my fucking ass off.” MVT read this post and responded to SD:

[17]      MVT is referencing the fact that SD had engaged in a “Bro fight” with ATB on December 7, 2018. MVT received a digital video of that fight from another student and published it on AS’s Facebook profile. MVT said she did this in response to nasty comments made to her in the school hallways from members of SH’s faction. SD said in response to MVT’s comments:

[18]      SF and SH considered MVT’s comment, “See you soon” as a threat to SD. SF chimed into the cyber conversation by telling MVT to “grow tf up [emoji] she’s 13 years old, act your fucking age.” This provoked a response from MVT and a further reply from SF and then a comment from SH to MVT:

[19]      SH testified with this comment she intended to “call [MVT] out” because “MVT was trying to call SD out when she couldn’t even like put her own video up there.” The fight SH refers to is one in which MVT had engaged the previous year with TM. MVT claimed SF engineered the confrontation by telling TM falsehoods in order to incite TM against MVT. In any event, MVT was not aware of there being any existing video of that fight. SD responded to MVT’s post:

[20]      The conversation captured in Exhibit 4, devolved into SD and MJ levelling insults at MVT. For example, SD went on to post comments to MVT:

[21]      SD tagged SF to look at the postings. After SD’s last comment, MJ joined the conversation with two laughing emoji with tears of joy, commenting:

[22]      SH agreed that in the Facebook conversation marked Exhibit 4, it was actually MVT who was being bullied.

[23]      In the morning of December 10, 2018, SF met with Vice Principal PB and showed him some of the screen shots of messages from SD’s conversations with MVT on Instagram (Exhibit 8) and Facebook (Exhibit 4). PB understood from SF that MVT was bullying SD, a girl two years younger than MVT. SF claimed that because of MVT, SD feared going to school.

[24]      PB told SF that because these conversations occurred off school property he was limited in what he could do. SH had never discussed any concerns she had with MVT before SF met with PB on December 10, 2018. In fact SH only learned of SF’s meeting with PB sometime after December 11, 2018.

[25]      PB showed the postings SF gave him to JVT who agreed to speak to MVT. Later that day MVT and JVT came to PB’s office and let him know there was more to the story than what SF had disclosed. PB learned that there had been a feud between SH’s faction and MVT’s faction which had been ongoing before PB had arrived at SS. (PB had transferred to SS in August 2018 from the Northwest Territories.)

[26]      MVT felt she was been targeted by the Exhibit 4 posts and took screen shots of the conversation to her parents. JVT showed these posts to PB and then she and PVT met with him early on December 11, 2018, before the morning assembly. MVT believes she was at that meeting; PB recalls only her parents attended. The VTs had wanted to meet with Principal VDK, but he was on short-term medical leave. JVT advised her daughter not to engage with SH’s faction because they were unpredictable, but MVT was angry at their attempts to intimidate her.

[27]      In the afternoon of December 10, 2018, PB suspended four girls for engaging in a Bro fight over the lunch hour that day. SD was one of the suspended students. Unbeknownst to him at the time, SD had also engaged in a Bro fight on December 7, 2018, with ATB. Given the prevalence of this phenomenon, SS administrators decided to hold another all-school assembly the following day to emphasize the dangers of and alternatives to Bro fighting.

[28]      After speaking with the VTs on December 11, 2018, PB decided to arrange an all party meeting of the feuding students and their parents to try and put an end to the conflict. At that time SD had been suspended so PB assumed he had a couple of days to set up a meeting.

[29]      SH was unaware the VTs had met with PB. SH testified that prior to December 11, 2018, she had not had any fights or arguments with any member of the VT family.

[30]      On the morning of December 11, 2018, SS administrators held a school wide assembly in an effort to impress upon the students the dangers of Bro fighting. This assembly was more or less a repeat of the December 10, 2018 assembly.

[31]      Either during or after the assembly, SH’s friend DMN sent her a Snap Chat message in which he told her some girls were talking and laughing about her, saying she was hiding behind the gym door. Upset at DMN’s snap, SH left the assembly and went directly to PB’s office.

[32]      MVT testified that on the morning of December 11, 2018, while SD was suspended, SH, MJ, and Laney posted online comments they wanted to fight MVT for “whatever reason.”

[33]      SH and PB’s evidence differs on what it was SH said in their meeting. They do agree, however, that SH came to the office to complain about MVT. PB says SH was angry and combative, saying she wanted to “kick MVT’s ass.” SH says she showed PB the screen shot of DMN’s Snap Chat message and told PB she didn’t want anything more to do with MVT and she wanted to solve the problem.

[34]      When she calmed down, PB directed SH to return to class, which she didn’t do. Instead SH went to her locker, retrieved a cup of noodles and took it to the office where the school administrative assistant filled it with boiling water from a kettle. With her cup of noodles in hand, SH went directly to the west girls’ bathroom to eat them. She set them on the bathroom counter to cool and began texting others on her cellular phone. It was now about 10:40 a.m. and at that moment SH was alone in the bathroom.

[35]      Thirty seconds after SH went into the bathroom, MVT arrived. MVT had been in her social studies class in the computer lab which was about five classrooms away from the west girls’ bathroom. Her teacher gave MVT a hall pass to go to the bathroom. MVT says she went directly to the west girls’ bathroom, which was the closest bathroom to the computer lab. She did not stop off at her locker. At the time, the halls were empty. MVT saw SH earlier that morning in the hallway on the way to the morning assembly, but they didn’t speak to one another.

[36]      SH testified that while she headed to the bathroom with her cup of noodles the hallways were empty, except for MVT, who was at her locker. SH believes MVT saw her and followed her into the bathroom. MVT denies following SH or going to her locker before entering the bathroom.

[37]      When MVT entered the bathroom. She started to head for the stalls when she saw SH leaning against the counter looking at her phone. SH’s cup of noodles were sitting beside her on the counter, but MVT did not see them. SH laughed; MVT thought SH was laughing at her and asked her what was so funny. SH replied, “Your ugly face.”

[38]      SH pulled out her phone, and MVT believed SH was taking a video or a picture of her and sending it to her friends. MVT asked SH why she was doing this. Looking directly at MVT, SH responded, “because you’re so ugly and I just wanted to show everyone how ugly you were . . . your whole family’s ugly.”

[39]      MVT became worried SH’s faction were going to come into the bathroom and attack her because there were no surveillance cameras in the bathroom. MVT pressed the record button and set her phone on the counter so she could record the events. SH says she only began recording MVT when MVT started recording her.

[40]      MVT’s initial attempts to record her and SH’s interaction failed. SH’s video-recording succeeded and SH posted it to her Snap Chat story. SH said she did this because she “wanted people to see [MVT’s] true colours.” SML, then in math class, watched the video and snapped back to SH’s story, asking her what was going on and if she was okay. SH sent SML a message, telling her she was in the bathroom by the stairs, and ask her to hurry. SML agreed and ran out of class to the west bathroom because she was worried about SH. SML’s math class was one classroom or 50 feet away from the west bathroom.

[41]      SML testified SH’s Snap Chat video of her encounter with MVT in the west bathroom did not depict any yelling or threats or physical altercation, just SH and MVT bickering back and forth. The only comment SML recalls is MVT saying to SH, “You say I get lip injections. You say I get plastic surgery because you're flat."

[42]      After a minute or so MVT realized her phone was not audio-recording. She retrieved it from the bathroom counter where she had placed it and began video-recording SH (see Exhibit 5). MVT believes at the time they were standing about six feet apart; SH says they were standing somewhat closer. The video depicts SH leaning against the counter using her phone. SH and MVT are arguing:

[43]      After about one minute, MVT threw her phone on the counter, the images scramble and then screen goes dark. For the next 20 seconds or so there is yelling and crashing and thumping. About 10 seconds after the screen goes dark, SML can be heard yelling at MVT, “get off her.” At about one and one-half minutes from the start of the video, it sounds as though the girls had left the bathroom. The video ends with MVT’s teacher, BVH, asking, “What is going on here?”, and picking up MVT’s cell phone. The video-recording ends with BVH shutting off the phone after two minutes and 18 seconds.

[44]      SML, who witnessed SH and MVT’s altercation, testified in her examination-in-chief:

[45]      SML said after SH threw the noodles, MVT rushed at her. They stumbled over the garbage bin and landed on the floor. SH was lying on her back with her head on the floor; MVT was on top of her. MVT had her hands on SH head pushing it into the floor; SH was trying to push MVT off of her. Neither girl was punching or hitting the other. The video suggested this phase of the altercation lasted under 20 seconds.

[46]      SH tried to push MVT off her with her legs. SML pulled MVT off SH. SML said she did this by grabbing MVT’s waist and hair. MVT got up and left the bathroom leaving SH huddled on the floor. As MVT was leaving the bathroom SH got up and threw the garbage can at MVT’s back. Once MVT had left the bathroom she began to feel intense pain. She ran to BVH’s classroom for help. BVH and JVT helped remove the burning hot noodles lodged in MVT’s sports bra and sought her medical assistance. Meanwhile, SML took SH to the office.

[47]      The video clip (Exhibit 5) indicates that all three girls left the bathroom less than a minute and one-half after MVT started her video-recording with her comment, “We are not in kindergarten, you can go fuck off.”

[48]      As Snap Chat erases the recording once it is read, there is no extant copy of SH’s video of her bathroom encounter with MVT on December 11, 2018, or none that was tendered in evidence at the trial.

[49]      MVT was taken to the hospital by ambulance. Later that evening (at about 8:55 pm) MVT sent a text message to her friend, GVP, in which she states:

[50]      MVT says she was still in shock when she sent the message to GVP. She denies being aggressive toward SH or that she had pushed SH’s head to the floor more than a couple of times after been hit by the noodles. While this was occurring, SML was pulling MVT off of SH.

[51]      SH says that while in the bathroom she was fearful of MVT and when MVT continued to ask her to leave, SH “was just getting triggered and triggered and triggered and triggered.” SH says she remember grabbing her cup of noodles, but “blacked out” and has no memory of throwing the noodles at MVT. Her memory resumes with falling on the bathroom floor.

[52]      MVT suffered second and third degree burns on her upper torso as a result of being struck by the hot noodles. She required skin grafts and has significant scaring. MVT testified that had she not stepped back just before SH threw the noodles, they would have landed on her face.

[53]      Unfortunately, the severity of the incident did not quell the two factions’ appetite for pejorative postings on social media.

[54]      SH is charged with assault under s. 267 of the Criminal Code with assault causing bodily harm and assault with a weapon. Section 267 states:

[55]      An assault under s. 267 incorporates the definition of assault set out in s. 265(1)(a) of the Criminal Code, which states:

[56]      Before the Court can convict SH of assault under the Criminal Code, the Crown must prove each of the following elements beyond a reasonable doubt:

[57]      The strength of the applied force is immaterial; the slightest touching of another person without their consent can constitute an assault. Section 265(2) of the Criminal Code expressly provides that this "section applies to all forms of assault, including . . . assault with a weapon... and assault…causing bodily harm."

[58]      The word intentionally is related to the application of force or to the manner in which force is applied. All that is required to establish the mens rea of the offence of assault is an intentional, non-consensual touching. The word intentionally means simply, not done by accident or through honest mistake: The Queen v. George, 1960 CanLII 45 (SCC); R. v. Dawydiuk, 2010 BCCA 162 (CanLII), at para. 29; R. v. D.J.W., 2011 BCCA 522 (CanLII), at para. 70.

[59]      Assault is a general intent offence. In R. v. George, Fauteux J. said, at p. 877:

[60]      "Bodily harm" is defined in section 2 of the Criminal Code, as meaning "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature."

[61]      Before the Court can convict SH of assault causing bodily harm pursuant to section 267(b) of the Criminal Code, the Crown must prove beyond a reasonable doubt SH assaulted MVT and in committing this assault SH cause MVT bodily harm.

[62]      Before the Court can convict SH of assault with a weapon pursuant to section 267(a) of the Criminal Code, the Crown must prove beyond a reasonable doubt SH assaulted MVT and in committing this assault she carried, used, or threatened to use a weapon, which in this case, is the contents of a cup of noodles.

[63]      The Defence disputes that the noodles are a weapon as defined in the Criminal Code, which defines “Weapon” in section 2 as meaning “anything used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person.”

[64]      MVT was injured, of that there is no dispute. Whether MVT was threatened or intimidated is not in issue. In this case, to prove the final element of assault with a weapon, the Crown had to prove only that SH used the noodles to injure MVT and that injury was reasonably foreseeable in the circumstances: In R. v. Lamy, 2002 SCC 25 (CanLII), at para. 11-16.

[65]      Assessing credibility engages a number of factors, including: (a) the plausibility of the witness’s evidence; (b) any independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright without any personal motive or agenda; and to a lesser extent (f) the witness’s demeanour while testifying, meaning not so much what is said but how it is said.

[66]      It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true. Evidence that is credible may nevertheless be unreliable: R. v. H.C., 2009 ONCA 56 (CanLII) at para. 41 citing R. v. Morrissey, 1995 CanLII 3498 (ONCA).

[67]      I am mindful that four of the witnesses were adolescents at the time of the offence. When they testified at trial, SH was 15 years old, MVT 16, SML 18, and SF 19. The Supreme Court of Canada has cautioned trial judges not to impose the same “exacting standards” in assessing the evidence of young witnesses as they do adults: R. v. B. (G), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, para. 48. This is not to say the Court lowers the standard of proof when dealing with a youth. It remains proof beyond a reasonable doubt. Still, when assessing the credibility of a youth, the Court must take a common sense approach. When considering inconsistencies, particularly as to “peripheral matters” such as time and location, the Court must contextualize these with the age of the witness. A flaw in a youth’s testimony should not be given the same effect as a similar flaw in an adult witness: R. v. O.M., 2014 ONCA 503, para. 51 – 53.

[68]      The principal safeguard to ensure no innocent person is convicted is the presumption of innocence and the burden on the Crown to prove the essential elements of the offences charged beyond a reasonable doubt. Although the standard is not absolute certainty, proof beyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities: R. v. Starr, [2000] S.C.R. 144.

[69]      In R. v. W.(D), 1991 CanLII 93, the Supreme Court of Canada provided the trial Courts with an analytical framework to assess reasonable doubt in the context of conflicting testimony in a criminal trial. It is intended to assist judges in properly applying the concept of reasonable doubt to issues of credibility. It provides:

[70]      In W. (D), Cory J. states that an accused’s evidence is not examined in isolation. Reasonable doubt as to the accused’s evidence must be determined “in the context of the evidence as a whole.” When assessing SH’s evidence, I must consider it in light of the evidence of all the witnesses, including MVT’s.

[71]      In determining what to believe, I may accept all, some, or none of a witness’s testimony; furthermore, I may accord different weight to different parts of the evidence that I have accepted: R. v. R.E.M., 2004 BCSC 1679, at para. 44.

[72]      I accept all the witnesses who appeared before me had the capacity to observe, recall, and recount the events to which they testified; however, this does not mean that I accept they always did so truthfully or accurately.

[73]      I have set out below my assessment of the witnesses’ credibility as they appeared in trial.

[74]      Corporal Bjornsen was the lead officer who investigated the offence and interviewed MVT on December 12, 2018. I find Corporal Bjornsen a credible witness and I accept his evidence accurate and trustworthy.

[75]      Plausibility of the evidence. In most respects I found MVT’s version of events plausible as much of her evidence was corroborated by other witnesses or documents marked as exhibits at trial. However, I do not find it plausible that MVT’s faction did not say or do anything to antagonize SH’s faction.

[76]      Independent supporting or conflicting evidence. The incident underpinning the offences were captured on video which support MVT’s version of events. SML, who saw SH’s Snap Chat video of the bathroom encounter, confirmed that neither SH nor MVT was making any threats to the other and there was no physical altercation. SML’s impression of SH’s video was that SH was recording MVT and MVT was recording SH and they were saying mean things to each other.

[77]      MVT’s evidence she was with her parents at their meeting with PB on the morning of December 11, 2018, is contradicted by PB. He recalls MVT and JVT meeting with him in the afternoon of December 10, 2018.

[78]      MVT’s suggestion that she was benignly asking SH why she was being aggressive and intimidating is contradicted by Exhibit 5 and MVT’s December 12, 2018 statement wherein she says:

[79]      MVT explained her remarks at trial as follows:

[80]      In my view MVT downplays her own penchant for brinkmanship as apparent by her demands to SH to leave the bathroom and to “stop shaking” (although if SH was shaking, it was barely perceptible), and to her comments over social media to SD, SF, and GVP. I am left with the impression that since December 11, 2018, MVT has “re-envisioned” her conflict with SH’s faction casting herself in the role of the peacemaker.

[81]      MVT testified that after they tripped over the garbage can in the bathroom, she was on top of SH, punching her. This evidence is contradicted by both SML and SH who describe MVT as using her hands to put continuous pressure on SH’s head to push it downward toward the floor. SML, who was observing this fracas testified that MVT did not hit or punch SH.

[82]      External consistency. MVT’s suggestion at trial that she remained calm and simply wanted to ask SH what her problem was with her family is inconsistent with MVT telling SH “fuck off” and with MVT’s text to GVP that she had “gotten in [SH’s] face” and “ hit her head on the floor like how many times because she tried to get out.”

[83]      Internal consistency. MVT’s oral evidence at trial was more or less consistent with what she told Corporal Fraser in her December 12, 2018 statement. In R. v. Untinen, 2017 BCCA 320 (CanLII) (application for leave to appeal to the Supreme Court dismissed, May 10, 2018, 37883), the BC Court of Appeal held the complainant’s video-recorded evidence cannot be used to bolster her credibility simply because it is consistent with the witness’s in-court testimony. Mere consistency between the complainant’s in-court and out-of-court statements does not make the complainant’s evidence more credible and cannot be used to confirm or corroborate the testimony.

[84]      The appellate court in Untinen went on to say:

[85]      Balance. As I have indicated previously, I find MVT tended to downplay her incendiary role in the conflict between the two groups. For example:

[86]      Demeanour. There is nothing about MVT’s demeanour while testifying which detracts from her credibility.

[87]      MVT’s tendency to minimize her own contribution to the conflict between her and SH’s factions diminishes her credibility. I find it entirely plausible MVT did go into the girls’ bathroom on December 11, 2018, for the purpose of confronting SH.

[88]      SML came to the girls’ bathroom on December 11, 2018, at SH’s bidding. She described SH as a good friend who she met through RCH. SML has known MVT since elementary school, but they have never been friends. In her direct examination SML explains why she ran out of math class to the girls’ bathroom upon seeing SH’s Snap Chat video:

[89]      In my view, SML’s loyalty to SH has coloured her evidence in SH’s favour. For example, when asked to describe SH’s Snap Chat video (which no longer exists), SML initially stated it showed MVT “saying a bunch of random mean things” to SH. SML went on to say later in her direct examination that she didn’t hear much of what SH had said on the video, but then said:

[90]      When asked to describe what she observed of MVT and SH in the bathroom, SML said:

[91]      SH and MVT’s interaction in the bathroom after SML appeared is captured on video (Exhibit 5). What SML must have heard was MVT accusing SH of saying mean things about the VTs and SH protesting it was her sister who was making those comments.

[92]      I find SML’s perceived duration of time is flawed. SML believes she was in the bathroom for at least five minutes before SH threw the noodles at MVT, when the video clip shows it was less than 50 seconds.

[93]      I also find that at times SML viewed SH in a more favourable light than what the facts warranted and MVT in a less favourable light. I do not believe this was done intentionally to mislead the Court, but rather from a natural inclination to support a good friend. Nevertheless, SML did witness the December 11, 2018 altercation in its entirety and I find her evidence helpful.

[94]      PB is the Vice Principal of SS. He was acting Principal at the time of the offence as VDK was ill. At the time, PB had only been at SS for a little over three months. The ongoing feud between MVT’s faction and SH’s faction was brought to his attention on December 10, 2018. Around this time, PB was attempting to supress the phenomenon of “Bro fighting” at SS. He had formulated a strategy to suppress the feud but had no opportunity to implement it by the morning of December 11, 2018. PB only learned of SH’s issues with MVT about an hour or so before the incident.

[95]      I found PB a credible and careful witness and I generally accept as accurate his version of events. Having said that, I believe it is entirely possible that he may not have fully appreciated the scope or nature of SH’s concerns when she came to his office on the morning of December 11, 2018.

[96]      SF provided the Court with her views on the history of animus between SH, SD, and MVT. She believed MVT was bullying SD via social media and voiced her concerns to PB on December 10, 2018. SF is RLS’ girlfriend who MVT describes as SH’s sister-in-law. MVT says SF bullied her since Grade 8. SF intervened in MVT and SD’s cyber-sniping to chastise MVT about picking on SD, who was two years younger. MVT accuses SF of fomenting conflict between MVT’s faction and SH’s faction.

[97]      SF’s evidence is largely related to MVT’s conflict with SD over social media in December 2017 and again in December 2018. The Crown objected to the admission of SF’s evidence absent a successful Scopelliti application on the basis it was character evidence of the victim and irrelevant to the question of whether SH had committed the offences charged. In R. v. Scopelliti, 1981 CanLII 1787 (ON CA), Martin, J.A. for the Ontario Court of Appeal, held that where self-defence is raised, evidence of both previous assaults by a complainant on the accused and previous acts of violence by that complainant towards third parties (that are known to the accused) are admissible to show the accused’s reasonable apprehension of violence from the complainant. Also, where self-defence is raised, evidence of the complainant’s disposition for violence is admissible to show the probability of the complainant having been the aggressor and to support the accused’s evidence that the accused was attacked by the complainant. Given there was no allegation MVT had any physical altercation with either SH or SD in the past, I heard SF’s evidence in a voir dire to first assess its admissibility.

[98]      SH became aware of the Facebook messages (Exhibit 4) around the time they were posted. SH had not seen the Instagram screen shots which became Exhibit 8, although SD told her in June 2018 that MVT had messaged her about JYVT. I had expressed my concern that Exhibit 8 was not a complete record of the Instagram conversation between SD and MVT in December 2017, as SD had deleted messages MVT had not specifically preserved in screen shots. At the conclusion of the trial I admitted SF’s evidence and Exhibit 8 into the trial proper to contextualize the history of animus between MVT’s faction and SH’s faction.

[99]      Plausibility of the evidence. SH was the last witness to testify in the trial. She claims to have no memory of throwing the noodles at MVT as she had “blacked out.” For reasons I will explain later, I do not accept SH was not acting under her own volition when she threw the noodles at MVT.

[100]   Independent supporting or conflicting evidence. SH says that on the morning of December 11, 2018, she went to speak to PB immediately upon receiving the Snap Chat message from DMN to complain about MVT because: (a) MVT was older and SH was afraid MVT and her friends were going to try and fight her; (b) SH “didn’t like the drama”; (c) MVT and her friends were making fun of her “for nothing”; (d) MVT was messaging her sister; (e) SH wanted nothing more to do with MVT; (f) SH didn’t want any trouble; and (g) SH wanted to solve the problem. SH became angry and left PB’s office because she felt he was shutting her out and siding with MVT. SH denies mentioning anything to PB about wanting to fight MVT.

[101]    PB testified that when SH came to see him that morning she was quite agitated and angry, expressing she wanted to “kick [MVT’s] ass.” PB described SH as appearing threatened by MVT. He said he kept going over strategies and different ways for SH to deal with the situation besides fighting. He emphasized what happens when students get caught fighting. At some point SH got angry and left his office. He asked her to come back and she ignored him. PB followed her into the hall and told SH if she didn’t return to his office, he was going to have to send her home.

[102]   SH and PB agree that after she spoke with her MCFD Counsellor, JVE, SH calmed down. She had “regulated” herself to the point she could return to class, although she didn’t want to and didn’t do so.

[103]   It makes little sense to me that SH would drop by the Vice-Principal’s office to simply to notify him she intended to fight MVT when to do so would result in her suspension. I do note, however, that at times SH had difficulty expressing her thoughts. I accept that SH did go to PB to complain about MVT’s faction making fun of her. I also accept given his recent placement in SS and lack of familiarity with the feuding students, PB may have not fully grasped SH’s intention or concerns.

[104]   When asked in direct examination what her conversation with PB was about, SH responded:

[105]   PB agrees SH said she wanted nothing more to do with MVT, but denies seeing or asking to see SH’s phone. I do not need to determine whose version is right on that point. I accept SH believed MVT was behind the offensive chatter.

[106]   SH’s evidence she was scared of MVT when she encountered her in the bathroom is supported by the fact she sent a text to SML asking her to come to the girls’ bathroom and to hurry.

[107]   External consistency. There was no evidence before me that SH had made any out-of-court statement about the incident except that captured on Exhibit 5. SH’s claim she was afraid of MVT and her friends and wanted to resolve the problem is contradicted by her behaviour in the washroom shortly after SH met with PB. When MVT first walked into the bathroom, SH laughed and when MVT asked her what was so funny, SH said “your ugly face.” SH testified she could not remember why she said that.

[108]   Internal consistency. SH’s evidence as to who DMN says was making fun of her was inconsistent. She agreed that on December 11, 2018, DMN had sent her only one message. When she initially described the message in direct evidence SH testified:

[109]   When asked in direct examination who had sent her the Snap Chat message SH replied:

[110]   SH’s described DMN’s snap in cross-examination as follows:

[111]   When asked if DMN sent her any follow up message to clarify who he was talking about, SH responded:

[112]   When asked whom DMN was sitting with at the time, SH replied, “I don’t know - I couldn’t really see. I don’t remember.”

[113]   Another inconsistency in SH’s evidence is her evidence about who she was texting when MVT first walked into the bathroom. In direct examination, when asked whom she was talking to on her phone when she went into the bathroom, SH said she did not remember. In cross-examination, when confronted with MVT’s allegation she was laughing at her, SH said, “I wasn’t laughing at her, I just laughed … at my phone . . . [at] something my sister said.”

[114]   The balance of SH’s evidence. In light of the ongoing feud between MVT’s faction and SH’s faction, I did not find SH demonstrated any exceptional animus against MVT.

[115]   Motive to fabricate. A witness’ motive to give evidence is a relevant factor in assessing his or her credibility. This raises special concerns where the witness is an accused because his or her entitlement to the presumption of innocence. In R. v. Laboucan, 2010 SCC 12 (CanLII), Justice Charron for the Court stated:

[116]   SH did demonstrate a willingness to be fair to MVT when she conceded that the cyber-posts in Exhibit 4 indicate that it was actually SD bullying MVT.

[117]   SH was also forthright when asked why she didn’t leave the bathroom, she said, “I would have been called out on it.” When asked in direct-examination what that meant to her, SH testified:

[118]   I gather SH was referencing DMN’s message that a group of girls were laughing at her, saying she was scared and hiding. If she left the bathroom SH would have been accused of being cowardly.

[119]   Demeanour. There was nothing about SH’s demeanour while testifying that detracted from her credibility. I do note, however, that SH’s difficulty with self-expression may have attenuated her evidence. She quickly retreated to, “I don’t remember” or “I don’t know.” I was left with the impression SH had much more to say but gave up trying to articulate it.

[120]   Despite her inconsistencies and difficulties in self-expression, I accept that SH was upset at MVT’s faction or she would not have gone to SS administrators for assistance. I also accept SH was afraid of MVT.

[121]   The law presumes that all persons, including SH, act voluntarily. The law also says that an accused is able, upon a proper evidentiary foundation, to negative the presumed voluntariness of her actions on a balance of probabilities. The Court does not punish conduct that is involuntary: R. v. Stone, 1999 CanLII 688. In circumstances where an accused did not have voluntary control over conduct that would otherwise be an offence, the defence of automatism may be available.

[122]   Automatism is an impaired consciousness in which an individual, though capable of action, has no voluntary control over that action: Stone, para. 156. The law recognizes two forms of automatism: mental disorder automatism and non-mental disorder automatism. If accepted, a defence of mental disorder automatism will not result in an acquittal, but rather in a verdict of not criminally responsible and the offender is detained and diverted to a provincial Review Board established pursuant to s. 672.38 of the Criminal Code. If the Court accepts the defence of non-mental disorder autonomism the accused is entitled to a complete and unqualified acquittal because the law does not condone the punishment of the morally innocent. The absence of volition in respect of the criminal act will always be a defence to the crime: Stone, para. 157, and R. v. Alexander, 2015 BCCA 484, at para. 29.

[123]   In this case Defence Counsel has not clearly articulated which type of automatism is in play. If the defence establishes mental disorder automatism (i.e. a disease of the mind) then the accused will be found not criminally responsible by operation of s. 16 of the Criminal Code which states:

[124]   Section 2 of the Criminal Code defines mental disorder as a disease of the mind. In Cooper 1979 CanLII 63 (SCC), [1980] 1 SCR 1149, p. 8, the Supreme Court of Canada describes what is meant by that term:

[125]   Whether she asserts mental-disorder automatism or non-mental disorder automatism, SH bears the evidentiary burden to prove on a balance of probabilities that she committed these offences involuntarily: Stone, para. 171, 173, and 182. SH testified she suffered trauma in the past and the events which occurred on December 11, 2018, in the girls’ bathroom at SS triggered flashbacks resulting in SH throwing the noodles at MVT while in a disassociated state. After the event SH sent a text message to SML asking her what had happened in the bathroom because she had “blacked out.” Although this suggests she has experience with “blacking out” SH provided the Court with no medical history of specific disassociated events. Thus, it is not clear whether the defence is that SH suffers from a recurring disorder which would fall under the rubric of mental disorder automatism, or a single incident of automatism triggered by a specific event which was unlikely to recur.

[126]   In Stone, the Supreme Court set out a two-step process for assessing a claim of automatism. First, the trial judge must determine whether the accused has established a proper evidentiary foundation for a defence of automatism. Second, the trial judge must determine which form of automatism applies: Stone at paras. 171, 182, and 193.

[127]   To meet the threshold evidentiary burden, SH must both claim to have acted involuntarily and present expert psychiatric evidence supporting that claim: Stone at paras. 183-184. The expert evidence need only be “logically probative”; meaning evidence, if accepted, would tend to support the defence of automatism: R. v. Fontaine, 2004 SCC 27 at para. 89. Stone also directs the trial judge to consider the evidence of other witnesses which may corroborate or contradict the plausibility of an accused claims of involuntariness.

[128]   In Stone, judicial response of a defence of automatism engages two principle policy considerations: (a) firstly, the potential that the accused could have been feigning automatism; and (b) secondly, the risk of harm to the administration of justice if people who commit a violent crime are acquitted on the basis of automatism: Stone at paras. 176, 220; Fontaine at para. 89. The specific evidence trial judges must consider include:

[129]   SH has presented no expert evidence to support her claim of autonomism, whether it be mental disorder or non-mental disorder automatism. Assessing the evidence before me in the Stone framework, I have considered the following:

[130]   The lay evidence does not suggest that at the time of the offence SH was responding in a manner which was totally out of character or in a manner that was unresponsive, disoriented, or confused.

[131]   In conclusion on this point, I find SH has not provided the requisite evidentiary foundation to establish the defence of automatism. Without expert evidence, I cannot conclude SH’s consciousness at the time of the incident was sufficient for her body to act as an automaton and throw the noodles, but not sufficient for her to control that act. SH’s professed lack of memory of the incident, in the absence of expert evidence indicating otherwise, does not rebut the presumption of voluntariness. SH’s testimony she “blacked out” amounts to nothing more than a mere assertion of involuntariness, which is insufficient to put the defence of automatism into play: (Stone, at para. 183 - 192; R. v. Alexander, 2015 BCCA 484 at para. 62.) The Court needs expert opinion evidence of some exceptional neurological or psychological event that rendered SH’s behaviour legally involuntary.

[132]   The Defence disputes the noodles were a weapon. Section 2 of the Criminal Code defines “weapon” to include “anything used, designed to be used or intended for use in causing death or injury to any person. In R. v. McLeod, 1993 CanLII 14674 the Yukon Court of Appeal explained the "focus of the definition has been shifted from the character of the instrumentality in question to the result of its use or the purpose for which it was used." In other words, any object can be a weapon if a person uses it to kill, injure, attack, threaten, or intimidate someone else.

[133]   In R. v. Lamy, 2002 SCC 25 (CanLII), the Supreme Court clarified the meaning of the word “weapon” and the term “injury” contained in the Criminal Code in the context of a case where the female victim suffered a physical injury in the course of a sexual assault. The Supreme Court held an object constitutes a “weapon” where it contributed to the harm caused to the victim. The object does not have to be designed or intended to injure in order to qualify as a weapon. Justice Arbour stated “… the accused must have knowingly or recklessly used the object without the consent of the victim in circumstances where injury was reasonably foreseeable. …” (para. 16). The word “injury” in the Criminal Code definition of “weapon” is not synonymous with the words “bodily harm.” If an object is used in inflicting injury, be it physical or psychological, in the commission of an assault, it is not necessary that the injury amount to bodily harm to trigger the application of s. 267(1)(a). Moreover, the accused’s subjective intention is irrelevant vis-à-vis the charge of assault with a weapon.

[134]   The courts have often found that containers of food or beverages constituted weapons for the purpose of s. 2 of the Criminal Code based on the manner in which they were used or the accused’s intention in using the container. In R. v. Vandergraaf, 1994 CanLII 16617 (MBCA) the accused threw a small bottle of Kraft Peanut Butter toward the ice at a Winnipeg Jets game. In R. v. Brennan, 2003 CanLII 23679 (NL PC), the accused threw a can of Pineapple Crush, which the court accepted could be a weapon. There are numerous cases where the offender threw a beer bottle: see R. v. Richards, 1992 CanLII 2601 (NS CA), R. v. Turpin, 2005 ABCA 180 (CanLII), R. v. Roth, 2019 ONSC 3550 (CanLII).

[135]   In R. v. West, 2013 ONCJ 315, Justice J. De Filippis convicted an accused of two counts assault with a weapon when he deliberately splashed hot water on his wife and infant son. The hot water hit the complainants left forearm and chest. Her arm became red and raw but not blistered. Her chest was not injured as she was wearing a blouse.

[136]   In R. v. Carter, 2014 SKPC 150 (CanLII), the offender, Ms. Carter, asked her corrections officer for some hot water for tea. The officer poured the water from the tea kettle into a coffee cup and handed it to Ms. Carter who then threw the hot water at the officer. The water had been boiling but had cooled somewhat by the time Ms. Carter threw the contents of the cup. The officer missed two days of work and said that she experienced discomfort for some days including blurred vision and the skin stayed red and puffy for up to two and one half weeks.

[137]   At trial Ms. Carter disputed the cup of hot water met the definition of a weapon and her intention to use the cup or hot water as a weapon. Judge S.P. Whelan of the Saskatchewan Provincial Court found Ms. Carter guilty of assault with a weapon upon concluding the hot water was thrown at the victim and that it was reasonably foreseeable that the water was hot.

[138]   In R. v. Storoschuk, 2014 ABPC 299 (CanLII), after canvassing the authorities on the meaning of “weapon,” Judge W. J. Cummings had to consider whether a cup of urine and vomit thrown by the accused in the commission of two assaults constituted a weapon as that term is defined in the Criminal Code to allow for a conviction of assault with a weapon. Judge Cummings concluded a cup of urine and vomit used by the accused in committing these assaults constituted a weapon as that term is defined in section 2 of the Criminal Code.

[139]   In conclusion the authorities indicate any object can constitute a "weapon" if a person uses it to kill, injure, attack, threaten, or intimidate someone else. I conclude the hot contents of a cup of noodles could constitute a weapon if it was intentionally or recklessly thrown in the direction of another person.

[140]   “Self-defence renders an act that would otherwise be criminal, not culpable”: R. v. Khill, 2020 ONCA 151 (CanLII), para. 38. Section 34 of the Criminal Code, R.S.C., 1985, c. C-46, codifies the law of self-defence in Canada. This section came into force on March 11, 2013, with the enactment of the Citizen’s Arrest and Self-Defence Act, S.C. 2012, c. 9. The former ss. 34 to 42 of the Criminal Code were replaced with new self-defence provisions found in ss. 34-35. Section 34, upon which the accused relies, states:

[141]   Section 34(1) consists of three elements, which the Ontario Court of Appeal in Khill describe as the trigger, the motive, and the response:

[142]   An accused can only be convicted if the Court is convinced beyond a reasonable doubt the answer to at least one of the three questions posed above is “no”: Khill, para. 65.

[143]   In order to trigger s. 34(1)(a), the Court must find the accused had a subjective belief that force is being used or threatened against them. The belief must be based on “reasonable grounds.” This limitation imports an objective assessment of the accused’s belief. Doherty, J.A. in Khill states at para. 46:

[144]   The phase “on reasonable grounds” in s. 34(1)(a) involves a contextualized reasonableness inquiry by referencing the accused’s personal characteristics and experiences to the extent that those characteristics and experiences were relevant to the accused’s belief or actions: Khill, para. 48. The Court must consider the accused’s prior violent encounters with the complainant or her knowledge of the complainant’s propensity for violence must be taken into account in the reasonableness inquiry. Thus, to the extent that SH’s personal characteristics and experiences informed her belief that MVT posed an immediate threat to her personal safety, those characteristics and experiences have to be taken into account in assessing the reasonableness of her belief, unless excluded from that assessment by policy-based considerations.

[145]   Section 34(1)(b) speaks to the accused’s motive for acting as she did. Khill holds that this inquiry is subjective. Doherty J.A. states:

[146]   The third element of self-defence is found in s. 34(1)(c): the accused’s response to the perceived or actual use of force or the threat of force must be “reasonable in the circumstances.” In assessing reasonableness, s. 34(2) directs the Court to consider “the relevant circumstances of the person, the other parties and the act.” Khill states at para. 57 the reasonableness inquiry in s. 34(1)(c), like s. 34(1)(a), blends objective and subjective considerations. Doherty, J.A. explains:

[147]   The first question I must ask is whether SH believed, on reasonable grounds, that MVT was about to use force against her.

[148]   In R. v. Billing, 2019 BCCA 237, a case of aggravated assault, the BC Court of Appeal held (at para. 9) that s. 34(1)(a) reflects a fundamental tenet of criminal law that a person may take defensive action as a pre-emptive measure to prevent an assault if the person believes on reasonable grounds they are about to be assaulted. A person is not required to stand by and wait to be assaulted before taking action. In this case, the defence characterizes SH’s act as a “pre-emptive strike” to ward off an inevitable attack. Citing R. v. Pappas, 2013 SCC 56, the Crown argues there is no “air of reality” to SH’s claim she acted in self-defence.

[149]   SH’s perception MVT posed a threat to her safety was shaped by the following events and history:

[150]   On December 11, 2018, SH was 14 years old, albeit soon to be 15. As the Crown has emphasized, by the time she threw the noodles, SH was no longer alone in the bathroom with MVT. SH’s older ally, SML, had come to her side. When SML arrived in the bathroom, SH’s verbal altercation with MVT was already heated and SML’s intervention did little to defuse the escalating tension. I find SH had far less verbal agility than MVT and likely disadvantaged in a “war of words.” I am not satisfied beyond a reasonable doubt that a reasonable 14 year old girl with SH’s characteristics and experiences would not perceive MVT’s appearance and conduct in the bathroom as threatening. Put in the affirmative, I accept SH did perceive MVT as a threat and that her perception was not unreasonable.

[151]   As I find that s. 34(1)(a) was triggered in the circumstances of this offence, I must then consider under s. 34(1)(b) what motivated SH to throw the noodles at MVT. If SH did not act for a defensive or protective purpose she cannot rely on self-defence. There is no suggestion SH was acting to defend or protect anyone but herself.

[152]   SH does not offer any rationale for throwing the noodles. She doesn’t say what she believed would happen if she did not throw the noodles. Rather, she claims she “blacked out” and has no memory of committing this act. She does not know what she was thinking or how she was feeling or why she threw the noodles.

[153]   As the accused’s motive engages a purely subjective analysis, the absence of evidence on this element of self-defence makes it difficult for the Court to find SH threw the noodles to defend herself from MVT’s aggression. There is no external evidence from which I could infer SH acted to defend herself. She claims she was afraid of MVT, but did not say what it is she thought MVT might do in the moment. Rather, SH seemed concerned she may be bullied by MVT’s faction at some later time if she did not stand her ground. I glean from the video-recording (Exhibit 5), that SH was becoming increasingly frustrated and angry at MVT’s harangue.

[154]   Considering the evidence as a whole, I do not find SH threw the noodles for the purpose of defending herself as required in s. 34(1)(b). I believe she threw the noodles as an offensive not a defensive strike.

[155]   If I am wrong as to motive, and SH did throw the noodles in response to what she perceived as MVT’s threat of physical force, I will consider the reasonableness of SH’s response in reference to s. 34(2). As Khill explains, this assessment blends objective and subjective considerations. I must consider the relevant circumstances of the accused, the other parties, and the act, including but not limited to factors mentioned in ss. 34(2) (a) to (h).

[156]   Section 34(2) (a): the nature of the force or threat. Defence Counsel argues MVT’s comments to certain members of SH’s faction (most notably, SD) together with MVT entering the bathroom to confront SH, constituted a threat, albeit not a clear and obvious one. Mr. Hutchinson argues in the circumstances, SH was entitled to take a pre-emptive strike in the face of the threat MVT presented. In my view, the evidence indicates little more than a heated verbal exchange between the two girls. It seems to me the nature of the threat was that if she continued unchecked, MVT would continue to berate and video-record SH in SML’s presence.

[157]   Section 34(2) (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force. Section 34(2)(b) codified the Supreme Court’s decision in R. v. Lavallee, 1990 CanLII 95 (SCC) which held the imminence of the attack is not a rigid requirement in order for self-defence to succeed, but rather a factor to be considered when assessing the reasonableness of an accused’s response. Lavallee was a case of a battered woman who had endured a long history of abuse and violence. The question the Court has to ask under this subsection is whether SH could have taken less drastic action other than throwing hot noodles at MVT.

[158]   SH had in fact taken steps to deal with her conflict or potential conflict with MVT. Earlier she complained to the school administration about MVT. SH felt “safer” after speaking to PB and MCFD Counsellor JVE. SH also posted a video of her interaction with MVT on Snap Chat. At SH’s request, SML came to the bathroom. Defence Counsel argues that SML was not much assistance to SH because she stayed at the entrance to the washroom and did not directly engage in the argument between MVT and SH. I disagree. SML did defend SH’s right to use the bathroom. There was nothing to suggest SML would not assist SH if the altercation became physical. In fact, SML did intervene to assist SH within seconds of MVT attacking her.

[159]   Defence Counsel argues SH retreated to the girls’ bathroom in search of solitude. When asked in direct examination why she went to the bathroom, SH said she didn’t want to go to class. SH took her noodles to the bathroom to eat because that was her habit. I understand the bathroom was one place in SS where there were no surveillance cameras. If it was solitude she sought, I do not think a high school girls’ bathroom would be an obvious retreat. Moreover, when she got to the bathroom, SH did not bask in the stillness of the moment, but immediately began texting her friends on her cell phone.

[160]   The evidence does not suggest MVT was poised to use physical force against SH. I believe MVT described her behaviour best in her message to GVP on December 11, 2018: MVT considered SH stupid; MVT got in SH’s face; MVT was recording SH; and MVT told SH to “fuck off.” In my view SH remained in the bathroom because she was unwilling to yield to MVT’s demands she leave.

[161]   Section 34(2)(c) the person’s role in the incident. Defence Counsel submits that MVT was the person driving the conflict and the only act for which SH can be faulted is her December 7, 2018 comment on Facebook asking MVT the whereabouts of her fight video. Again, I disagree. In my view Exhibit 4 shows that it was SD who initiated and fuelled the December 7, 2018 cyber-sniping episode with MVT. The online conflict is really between MVT and SD and MVT and SF. Although vaguely aware of their existence, SH had not seen the December 2017 Instagram screenshots between SD and MVT at the time of the offence.

[162]   Prior to December 11, 2018, SH had never had any altercation with MVT, verbal, physical, or virtual. I accept earlier that day, SH went to complain to PB about MVT’s faction saying hurtful things about her, which DMN overheard. The comments, while suggesting SH was cowardly, were not overtly threatening. I am also concerned the incident to which DMN referred was not put to MVT in cross-examination, nor was SH’s allegation MVT bump into SD in the SS hallway at some unspecified time.

[163]   Defence Counsel further submits SH became conscripted into MVT’s conflict with SD earlier that day with MVT’s comments. The only evidence of MVT speaking to SH on December 11, 2018, was their encounter in the bathroom. I understood it was actually SH who dispatched the first volley of insults by called MVT ugly.

[164]   I find MVT decided to have a “show down” with SH in the girls’ bathroom on the morning of December 11, 2018. MVT demanded SH account for the nasty comments SD had made about MVT and her sisters on Facebook. I do not believe MVT intended for this encounter to become a physical.

[165]   Section 34(2)((d) whether any party to the incident used or threatened to use a weapon. There is no indication that MVT had or used any weapon. The only item MVT had in her hand was her camera which she was using to record the incident. For the reasons set out above, I found SH used her hot noodles as a weapon.

[166]   Section 34(2)(e): the size, age, gender and physical capabilities of the parties to the incident. The Defence points out that MVT was older, more mature, in a higher grade than SH, and she also had previous experience in a fight. Although MVT was nine months older than SH, I do not find there was a significant difference in their physical size. I have no evidence as to SH’s fighting experience, only SD’s. The fight to which SH refers was one MVT had with TM a year before, which apparently MVT lost.

[167]   Section 34(2) (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat. Section 34(2)(f) also codified the Supreme Court’s ruling in Lavallee the nature of the abusive relationship between the accused and the victim is also a factor when assessing the reasonableness of the accused’s actions.

[168]   SH and MVT were members of two feuding adolescent factions with MVT, SD, and SF at the epicentre. Still, the only evidence at trial of MVT having a physical altercation was a fight she lost to TM which occurred before SH was even in high school. MVT had no physical altercation with SH or SD or any other member of the SH faction. SH and MVT had no verbal altercation prior to December 11, 2018, although SH was present when MVT had angry words with SD. SH says one time she saw MVT bump into SD in the SS hallway, however, this allegation was never put to MVT in cross-examination. Exhibits 4 and 8 depict only one message between SH and MVT, and that was the one SH sent on December 7, 2018, asking MVT, “where’s your fight video at?”

[169]   Defence counsel argues there was clearly animus between MVT’s faction and SH’s faction, of which the school, parents, and SH were aware. He criticizes SS administrators for their inaction in addressing the conflict. I find this criticism toward SS administrators profoundly unfair. PB was acting principal at the time of the incident. He was new to SS and first made aware of the conflict between MVT and SD on December 10, 2018. SD was suspended that afternoon for fighting. PB did not recall if he spoke to SD’s parents, but that would be in keeping with SS protocol. If he had not spoken to them, he would have attempted to leave a message. By the following morning (December 11, 2018), PB had discussed SD’s and MVT’s conflict with SF, MVT, JVT, and PVT. He had formulated a plan to address the conflict upon SD’s return to school later that week after serving her suspension. In the interim, PB was trying to grapple with the trendy but dangerous Bro fighting at SS. PB only became aware of SH’s issue with MVT an hour or so before the bathroom incident. He warned SH of the consequences of fighting and offered her some strategies to deal with the situation. When SH left his office, PB thought she had regulated herself sufficiently and directed her to return to class. I do not see how PB could be faulted for failing to foresee SH would skip class, take an early lunch in the girls’ bathroom, and wind up in a physical altercation with MVT.

[170]   Section 34(2) (f.1) any history of interaction or communication between the parties to the incident. SH and MVT’s history of interpersonal contact or communication was threadbare. They had no physical conflicts or arguments. SH could recall having only one conversation with MVT over social media and that was such a “long, long time ago” that she could not remember what it was about. Despite this dearth of interpersonal contact or communication, I accept MVT and SH belonged to opposing factions which informed their regard for the other. MVT appears to attribute to SH comments which SD had made on Facebook (Exhibit 4) on December 7, 2018. I also accept SH’s generalized animosity toward MVT was amplified on December 11, 2018, by the Snap Chat message SH received from DMN earlier that day. As MVT was not cross-examined on DMN’s message, I do not have a clear understanding of MVT’s role in the incident.

[171]   Section 34(2) (g) the nature and proportionality of the person’s response to the use or threat of force. MVT testified that SH attempted to throw the noodles at her face. Because MVT had stepped back at the pivotal moment, the noodles landed on her chest. Defence counsel argues that what SH threw was simply food. It was not a punch or a heavy object which by its weight or mass could cause damage. But for the noodles being steeped in boiling water, SH’s actions would not have resulted in any injury to MVT. It is an error to conclude SH’s defensive act in throwing the noodles was disproportionate and excessive because of the gravity of the physical injury MVT suffered as a result. The Crown points out there is no evidence that SH even subjectively believed MVT was poised to attack her. In any event, throwing a hot cup of soup to pre-emptively deflect an altercation is disproportionate.

[172]   Defence Counsel argues a person acting in self-defence is not required to “weigh to a nicety” the amount of force required to repel an attack. People in stressful and dangerous situations do not have room for detached reflection. This principle, espoused in R. v. Baxter, 1975 CanLII 1510 (ONCA), relates to the old self-defence provisions. In R. v. Billing, 2019 BCCA 237 (CanLII), Fenton, J.A. for the Court, noted the new self-defence provisions of the Criminal Code (enacted March 11, 2013) are qualitatively different than the old self-defence provisions. Proportionality is now given less emphasis; it is but one factor among many to be considered under s. 34(2). The ultimate question is whether the act was “reasonable in the circumstances.”

[173]   SH did not pick up and throw the noodles in one fluid motion. She put down her phone, took the cover off the noodles, and threw the contents from the container. The noodles were hot when she brought them to the bathroom a couple of minutes earlier. By taking the cover off the noodles, SH would have been alerted to the fact the noodles were still very hot.

[174]   In R. v. Robertson, 2020 SKCA 8 (CanLII), the Saskatchewan Court of Appeal considered Mr. Robertson’s argument that s. 34(2)(g) permits focus only on the amount of force used, and not consideration of the relative size of weapons the parties might have been carrying. Kalmakoff J.A., for the appellate court stated at para. 54:

[175]   Wherever she aimed, SH’s act in throwing the noodles at MVT was not proportional to the perceived threat. There were other objectively reasonable ways she could have responded to MVT’s verbal confrontation that did not involve throwing scalding noodles at her. For example, SH could have left the bathroom or simply refused to engage with MVT.

[176]   Section 34(2)(h) whether the act committed was in response to a use or threat of force that the person knew was lawful is not applicable in the circumstances.

[177]   I am satisfied that under s. 34(1)(a) SH believed, on reasonable grounds, that force was being threatened against her. Under s. 34(1)(b) I do not believe SH threw the noodles as a pre-emptive strike for the purpose of defending herself. Rather, I find she did so as an offensive strike because she was angry and frustrated at MVT’s harangue. I have also considered the factors set out in s. 34(2)(a) to (g) and I am satisfied that the Crown has proven beyond a reasonable doubt that SH’s act was not reasonable in the circumstances. Accordingly, SH’s defence of self-defence fails on the basis of her motive and the response to the perceived threat.

[178]   As a result of the foregoing, I find beyond a reasonable doubt that on December 11, 2018, at [omitted for publication], British Columbia:

[179]   I am also satisfied, the Crown has proven beyond a reasonable doubt that two of the three required elements of self-defence were not present, namely: (a) SH threw the noodles at MVT for the purpose of defending herself (s. 34(1)(b)); and (b) SH’s act in throwing the noodles at MVT was reasonable in the circumstances (s. 34(1)(c).

[180]   This finds SH guilty of Counts 1 and 2 of Information 2612-1, charging her with assault causing bodily harm and assault with a weapon.

[181]   I invite submissions of counsel whether one of the two counts ought to be conditionally stated by application of the rule against multiple convictions for the same delict in accordance with R. v. Kienapple, 1974 CanLII 14 (SCC).