IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         P.M. is charged with choking his former partner S.W. between June 1^st and September 30, 2021 in Mission, B.C. This allegation forms amended Count 3 under s. 267(c) of the Criminal Code of Canada.

[2]         For a more serious allegation on March 26, 2022, he faces charges of assault causing bodily harm, as well as assault by choking. This incident involved the same complainant and relates to Counts 7 and 8. Ms. W. had bilateral nose bone fractures and extensive bruising to her face, jaw and body as a result of this incident.

[3]         Mr. M. is also charged under Counts 5 and 6 with assaulting and threatening his partner, and during trial it became clear these counts related to an incident a few weeks earlier when Ms. W. was allegedly dragged by her hair.

[4]         Certain allegations under Counts 1 and 2 were stayed at the end of the Crown’s case, and I dismissed Count 4 on a no evidence motion.

[5]         Mr. M. said none of the incidents occurred as described by Ms. W., and she attacked him with a steak knife on March 26, 2022. Consequently, this case requires me to assess the credibility and reliability of the Crown and defence witnesses. I also must consider the self-defence provisions under s. 34 of the Criminal Code.

[6]         A Jordan application was made on February 14^th of this year, well after this trial had commenced. I exercised my discretion to adjourn that application—if it were to proceed—until after this trial concluded. I wished to minimize trial disruption, and the Jordan argument could not have proceeded in any event as transcripts were not ready.

[7]         Ms. W. testified via CCTV and with a support person pursuant to s. 486.2(2) of the Criminal Code.

[8]         Ms. W. first said Mr. M. assaulted her on the morning of March 26, 2021, but she was in error about the year and later clarified that it happened in 2022. Her memory was a little foggy. Ms. W. and Mr. M. were living together at the time at a home on [omitted for publication] in Mission, BC, and he was required to stay at the home by the terms of his Probation Order.

[9]         Ms. W. stated that they were having an argument the night before and Mr. M. later wanted to return to bed but she refused him. She went to bed but woke up later when he came into the bedroom and was attacking her. He jumped on the bed and strangled her by putting his hands around her neck and squeezing and pushing her down. She had difficulties breathing.

[10]      Mr. M. then punched her in the face. He continued to strangle her with one hand while he punched her with the other hand. Matters escalated from the bed to the floor, and Mr. M. threw punches while Ms. W. was both on the bed and on the ground. Ms. W. was in and out of consciousness. Mr. M. was also throwing her around “like a rag doll.”

[11]      Mr. M. was sitting on the bed when Ms. W. came to, and then he threw more punches to her face. Ms. W. said she came in and out of consciousness three times, and each time Mr. M. would wait for her to wake up and then hit her again. Ms. W. clarified that Mr. M. punched her all over her body: her nose and face, head, and back. She had bruises all over her body.

[12]      The last time Ms. W. regained consciousness, Mr. M. appeared calm and looked like he enjoyed assaulting her.

[13]      Ms. W. was bleeding “so much” from her nose and mouth, and she was hit so hard, that she could not feel anything. Mr. M. is bigger and stronger than her, and she would remain wherever he put her. She was never on top of him.

[14]      Ms. W. did nothing to provoke Mr. M., but he did want to go to bed and not sleep on the couch, so that may have contributed to the incident.

[15]      Ms. W.’s face “blew up” as a result of the assault, and she was “unrecognizable.” Her eyes were swollen shut. She believed Mr. M. hit her with all of his power. She could hear a “pop” when she was struck in the face. There was blood on the mattress and the floor.

[16]      The assault happened quickly, and Ms. W. did not fight back. She felt like she was “hit by a bus.” When she was on the ground and Mr. M. was on top of her, she did try to hit Mr. M. on his side with her closed fists and whatever she could grab. She then said she ended up grabbing a butter knife which had fallen to the floor, and she was hitting him with it. He was not injured, as he was wearing a thick hoodie. She observed no injuries on him.

[17]      When Ms. W. was on the ground, she thought she was going to die and she had nothing left. For some unknown reason, the incident ended and she told Mr. M. to get out of the house. Mr. M.’s daughter and her son were in their bedrooms when this incident occurred. Mr. M. left with his daughter. Ms. W.’s son saw her laying on the hallway floor, and he was crying. Her son wanted to call 9-1-1, but Ms. W. told him not to call as she was scared for her life.

[18]      Ms. W. ended up back on the floor, coughing blood and bleeding from the nose. Her memory of further events is blurry, but her father came to the home and he drove her to the Abbotsford Regional Hospital.

[19]      Ms. W.’s nose was broken, and there is an admission that she had bilateral nasal bone fractures. She saw a specialist regarding her nose, and the nose fractures have not yet been repaired. She testified that her eyes were closed shut, the whites of her eyes were purple, and her whole body was black and blue.

[20]      Ms. W. said she suffered a head injury because she was previously involved in a car accident and felt similarities between the two injuries. Following the assault, she was irritable and could not think properly. She lived in fear. In the hospital, she felt like she was dying due to the many blows to her face.

[21]      The Mission RCMP took photographs of Ms. W. the day of the incident, March 26, 2022. Photograph F from Exhibit 3 shows dark purple bruising under each of Ms. W.’s eyes and light bruising on her chest. The left side of her face was more swollen. Photograph G depicts a closer view of the left side of her face, with swelling and dark bruising under her left eye and bruising along her jaw and neck.

[22]      Photograph A and B show a bruise on Ms. W.’s right thigh and her left thigh. Photograph D depicts a bruise above her left elbow. She testified that she had no bruising or scratches prior to the incident, and in cross, she denied that any bruising was the result of other causes.

[23]      In Exhibit 4, Ms. W. also took photographs of herself on March 27, 2022 or later. Photograph K portrays her face with reddish purple black eyes, red eyelids, and a bruised nose. It is date stamped March 27, 2022. Other photos show a bruised lip and bruised left chin. Photo N, date stamped March 29, 2022, shows more advanced bruising under her eyes and on her nose. Photographs taken later on March 30, 2022, depict bruising on her right front shoulder, chin and face, as well as on her right back shoulder, left armpit, neck and chest area.

[24]      In cross-examination, Ms. W. did agree that she and Mr. M. had some alcoholic drinks the night before the March 26, 2022 incident. They ordered packs of beer all the time.

[25]      Ms. W. first insisted that Mr. M. woke her up to beat her, but she later conceded that she was not sure if she was awake when the argument started, and she told the police she was texting that morning. She denied that Mr. M. left the home prior to the incident.

[26]      Further into cross-examination, Ms. W. said the bedroom was small and there was not a lot of space around the king size bed. She only remembered grabbing a kitchen knife when she was on the floor, although she told another Crown counsel she grabbed a fork and knife. She denied going to the kitchen to get a steak knife and stabbing Mr. M. in the lower lip.

[27]      During her police interview, Ms. W. told the police she did stab Mr. M., and she was cautioned by police for assault with a weapon. However, she testified that she was on her back using a butter knife in self-defence. The knife did not go through Mr. M.’s clothing. She said that Mr. M. told her to tell her dad that she stabbed him. She said she did not stab him in the mouth, and there were no injuries to his face or mouth. Any blood was her blood.

[28]      In cross-examination, Ms. W. was shown a photograph of Mr. M. with a black mark below his chin, but she denied stabbing him in that area. She denied that she stabbed him first with a steak knife to instigate this entire incident. The same photograph shows a small mark on his left arm, but Ms. W. denied causing that injury.

[29]      A few weeks before the major incident on March 26, 2022, Mr. M. dragged Ms. W. by the hair out of the house into the front yard. This occurred at the same home on [omitted for publication] in Mission, BC. They had a little argument previously, and he then grabbed her and dragged her by her hair. She tried to twist out of his grip and she screamed for help. She was thrown into her front yard during the incident.

[30]      Ms. W. testified that Mr. M. grabbed her hair, and he was dragging her as her backside was along the ground. She was trying to hold onto Mr. M. while being dragged. She never consented to this abuse. Neighbours across the street grabbed their children and went inside.

[31]      Mr. M. also dragged Ms. W. back into the house. When she was back in the house, Mr. M. said that she brought him to a dark place and he was going to kill her. Only Ms. W. heard the threat, and she took the threat seriously. Mr. M. also pushed Ms. W. with his hands towards a wall, and he pushed his head against her head. She later clarified that his forearm hit the side of her face.

[32]      Ms. W. suffered a cut to her lip, and her scalp was sore as hair had been ripped out. She was wearing hair extensions. Ms. W. took Photograph H in Exhibit 5 on the day of this incident, and it depicts blood on her upper lip. Her cheek was also reddened because Mr. M. applied force in that area. There was blood on her forehead but no injury there. Photograph J shows her hair extensions with some of her own hair. Ms. W. said she picked up some of her hair from the doorway area, and then took the photograph.

[33]      In cross-examination, Ms. W. said she would wear a set of hair extensions once or twice before they would grow out. These were tape-in extensions. She may have been drinking during this incident. She denied attacking Mr. M. She told her father that a dog had scratched her, as she was embarrassed she let this incident happen.

[34]      Ms. W. began dating Mr. M. in early 2021. In the summer of 2021, Ms. W. woke up to find Mr. M. going through her phone and an argument ensued. Mr. M. was angry, so Ms. W. ultimately drove to her friend’s home in Mission, BC.

[35]      Mr. M. went to her friend’s home, so she ran back to her home one block away. Mr. M. showed up there and threatened to break down the back door.

[36]      Ms. W. had a brief break during her testimony and then spoke of an incident occurring at the home of Mr. M.’s mother in Maple Ridge. Ms. W. was sitting on a bed in Mr. M.’s bedroom, and he pounced on her and pushed her down on the bed. Mr. M. choked her with his hands around her neck when she was laying down. Ms. W. lost consciousness. When she regained consciousness, she left his mother’s place and drove to Mission.

[37]      There were no marks on Ms. W., and she did not understand the seriousness of the incident. She did go to the hospital concerned that she had broken a rib.

[38]      In cross-examination, Ms. W. said her left rib or lung was hurt, even though she told the police on March 26, 2022 that the injury was to one of her sides. She had just been beaten when she gave the police statement, so that affected her recollection.

[39]      As to what started the argument in the summer of 2021, Ms. W. denied requesting Mr. M.’s cell phone, and he smashed her phone at some point. She denied attacking Mr. M. by scratching his chest. She was unsure if a fan was broken during the incident.

[40]      Ms. W. agreed that she wrote a letter to the Court in October of 2021 in favour of Mr. M. She made no mention of this summer 2021 incident. At the time of the letter, she had strong feelings for him.

[41]      During cross-examination, I did allow the defence to ask questions about Ms. W.’s alleged propensity for violence (and to later call other witnesses in that regard), limited to incidents no more than three years prior to the earliest date of these allegations, being the summer of 2021. I did so on the condition that the Crown was entitled to rebut or redirect on those allegations and even present evidence of Ms. W.’s possible peaceable character, as this line of cross-examination was not anticipated.

[42]      I explained that my chief focus was on the three allegations before me and any possible self-defence regarding them. Propensity or disposition evidence about the Complainant ought to be limited in scope and the collateral evidence rule would limit the inquiry. Of course, evidence suggesting another cause for any of Ms. W.’s injuries was highly relevant.

[43]      My ruling at trial sets out greater detail, but I ruled that propensity evidence about Ms. W. could be relevant on the assumption there was a possible self-defence argument under s. 34 of the Criminal Code. As stated in R. v. Sims, 1994 Can LII 1298 (BC CA), while the accused is protected by a rule of policy which generally excludes evidence of his bad character, if the character of the victim of an alleged crime is relevant to some issue before the Court, evidence tending to establish that character is relevant. Where the accused claims self-defence, character evidence of the violent disposition of an alleged victim may be relevant, but the Crown is entitled to adduce peaceful character of a victim (see R. v. Soares, 1987 CanLII 6841 (ON CA)).

[44]      In R. v. Scopelliti, 1981 CanLII 1787 (ON CA), 1981 Can LII1787 (ONCA), the Court ruled that evidence of previous acts of a complainant’s violence, not known to the accused, must be confined to evidence of previous acts of violence which may legitimately assist the jury in arriving at a just verdict with respect to the accused’s claim of self-defence.

[45]      The allowable cross-examination on Ms. W.’s character was as follows. Ms. W. did injure her hand around July of 2021 at her father’s home during a birthday celebration. It was called a “boxer break”. During the birthday party, Ms. W. had an argument with her stepsister as she wanted no one to handle her kittens. She did not remember how she exactly injured her hand, but she said she was sucker punched by her stepsister’s brother, and she started to swing her arms and she struck her stepsister. She denied punching anyone else. Exhibit 6 is a photograph of her hand in bandages following the incident.

[46]      Ms. W. could not recall if she was drinking during the birthday party incident. She did use cocaine on weekends, although she told a doctor in 2022 that she quit using cocaine as a teenager.

[47]      In redirect, Ms. W. indicated that she had no criminal record and she had never been charged with a criminal offence. She does not want to get in fights, and her two children are her life. She sometimes does say mean things she later regrets. In cross-examination, she denied that she blamed her mean words on being female, even though she told the police it is “a female thing.”

[48]      Ms. W. is “permanently disabled” by reason of rods and screws in her spine.

[49]      Ms. W. denied threatening to kick a cane out from under an elderly lady in 2021.

[50]      Constable Sidhu has been a member of the RCMP for two and one-half years. On Saturday, March 26, 2022, she was directed to attend with other officers at the residence on [omitted for publication] in Mission, BC, to locate and possibly arrest Mr. M. She had been at that residence previously to conduct curfew checks.

[51]      Constable Sidhu and Cst. Dueck parked just south of the residence, and she was tasked with containing the northwest corner of the house at the rear. She was watching the back door.

[52]      Constable Sidhu learned that door knocks and phone calls went unanswered, and next steps were being considered. She then saw a small white light over the back fence, and a male climbed over the fence walking towards the back door. The male was Mr. M., and he was arrested at gunpoint because of a report of a possible firearm. No firearm was found on his person, and I put no weight on the concern of a firearm.

[53]      Mr. M. was compliant with police requests, and he was handcuffed. Mr. M. was given his Charter warnings regarding an assault. During the initial arrest, Mr. M. did complain of something on his face.

[54]      Mr. M. was transported to Cst. Sidhu’s police vehicle. Cst. Braddick informed Mr. M. of additional charges and gave a further Charter caution.

[55]      Constable Sidhu observed no injuries on Mr. M. She transported him to the detachment, photographed him, and fingerprinted him. In the photograph marked Exhibit 8, Mr. M. is sitting on a blue chair and there is a red dot on his left forearm and a spot under his lip which the Constable assumed was not a mole but some sort of injury.

[56]      In cross-examination, Cst. Sidhu said she made no notes of any injuries to Mr. M.’s knuckles.

[57]      Constable Braddick has been a RCMP member for five and one-half years. On March 26, 2022, he was dispatched to a report of an assault on S.W. He met with her in the evening and observed significant swelling to her face. He took the photographs of her marked Exhibit 3. He took statements from Ms. W. and her friend.

[58]      Photograph F depicted bruising under the eyes, swollen cheeks and a swollen upper lip. Photograph G showed bruising under the left eye and jaw. This is how Cst. Braddick saw her on March 26, 2022. Ms. W. had trouble remembering events.

[59]      In cross-examination, Cst. Braddick stated that he sought health records regarding an alleged earlier rib injury to Ms. W. in the summer of 2021, but nothing was received. He did not attend the scene of the March 26^th alleged assault, and there were no photographs of the bedroom.

[60]      Mr. W. is the father of S.W. On a Saturday (I presume March 26, 2022), he was at work when he received a call from his daughter, S.W., at around 9:30 am. She was incoherent and asked him to come to her place.

[61]      When Mr. W. arrived at his daughter’s home, she was standing in the kitchen covered in blood. Blood was all over the place. Ms. W. had a hard time speaking. She could not focus on her father.

[62]      Mr. W. checked on his twelve-year-old grandson who was in bed. He then cleaned blood off his daughter and off the floor, walls and hallway. He cleaned with wet cloths.

[63]      There was even more blood in the bedroom, on the bed and floor. Mr. W. observed blood on the king-sized bed, the floor below, by the door and on the walls near the door. He did not clean the bedroom. He then convinced his daughter to allow him to drive her to the hospital. He believed his daughter was ashamed of the situation. She was non-responsive to his questions on the way to the hospital.

[64]      The hospital staff took Ms. W. in right away, and Mr. W. waited at the hospital while she was being treated. He described his daughter as battered. Her face and eyes were swollen, and there was blood on both sides of her face. Her lip and nose were swollen. His daughter was afraid and worried whether Mr. M. was coming back.

[65]      In cross-examination, Mr. W. agreed that Ms. W. drank alcohol occasionally. She has binged, and he has gotten drunk with her. She becomes generous when she drinks, but she can occasionally say mean things. He disagreed that she starts fights.

[66]      Mr. W. said that he has recently talked to his daughter about many things, including the timing of this trial.

[67]      Regarding the incident when Ms. W.’s hand was injured in the summer of 2021, Mr. W. recalled his daughter arguing with his partner’s daughter, J., about some kittens. Ms. W. did not want anyone touching the kittens. He did not see any punching until J.’s brother stepped in and attacked Ms. W. Mr. M. jumped on the brother and started gouging his eyes out. Mr. M. then fled. This evidence was given in cross-examination in response to defence questions about violence during the incident. Mr. W. did not see how Ms. W. injured her hand.

[68]      A couple of weeks prior to March 26, 2022, Ms. W. said she had been scratched by a dog, but Mr. W. suspected Mr. M. was responsible. He asked Mr. M. to leave at that time.

[69]      Further into cross-examination, Mr. W. agreed that his daughter said she stabbed Mr. M. during the March 26, 2022 incident. She did not specify he was bleeding.

[70]      Mr. M. is 36 years old and works as a contractor. He has known S.W. for about seven years now. He thinks they began dating around December of 2020, and they eventually rented a house together.

[71]      On the night before the March 26, 2022 incident, Mr. M. came home late from work. Ms. W. had dinner prepared, and she had been drinking beer and probably wine. She was aggravated. Mr. M. recalled 15 packs of beer being dropped off at the house by Door Dash or Skip the Dishes.

[72]      Mr. M. and Ms. W. got into an argument. There was no physical contact, and he tried to avoid her and slept on the couch. He sent her a message that he did not want to argue and he wanted to come to bed. He ended up going to the bedroom and sleeping.

[73]      Mr. M. woke up to Ms. W. asking him if someone had messaged him on his Facebook account. His dead friend’s mother had checked in on him, but Ms. W. was upset and asked “who the fuck is this bitch” or words to that effect. Ms. W. often argued when she was drunk, and she could be loud and aggressive. This exchange happened early in the morning and it was almost light out.

[74]      Mr. M. responded to Ms. W. by saying she was nuts and that the message was from his dead friend’s mother. He said he was done with her. Mr. M. tried to be calm as there were two children in the house. He told Ms. W. he did not want to be with her and he was leaving.

[75]      Ms. W. left the bedroom and then walked back in. Mr. M. was looking for his pants and keys when he saw someone coming out of the corner of his eye. Ms. W. took an overhead swing with her right hand and stabbed him in the face. He initially thought it was a punch but it felt different. He felt blood and later saw a steak knife in her hand. Blood was running down Mr. M.’s face and he could taste blood in his mouth.

[76]      Ms. W. was raising her right hand to try to hit Mr. M. again, and that was when he actually saw the steak knife. It had a black handle with a serrated edge. He thought she was going to stab him again. With his left hand and arm, he blocked her hand from coming down. He used his right hand to peel her hand over to get the knife out of her hand. His intent was not to get stabbed. There was no way to dodge her and it was a small bedroom.

[77]      Mr. M. testified that he did not directly or intentionally hit Ms. W.’s face. He could have hit her face in his effort to get the knife out of her hand. It was quite the commotion. Ms. W. seemed fine, and she was crying and apologizing. She went limp on the floor. She fell on her back, and it did not seem that hard. He did not slam her to the ground. Ms. W. bruised easily. Mr. M. said he did not touch Ms. W. after he removed the knife from her.

[78]      Mr. M. testified that the knife did not look like a butter knife, and a butter knife would not be sharp enough to cause his injury.

[79]      Mr. M. said to Ms. W. that she was “fucking nuts.” He asked for his truck keys, but she stashed them. He called a friend to pick up him and his daughter. Ms. W. told his young daughter to get her stuff and get out of the house.

[80]      Mr. M.’s friend, B., picked up Mr. M. and asked Mr. M. to get the blood off his face so his daughter would not see it. In cross-examination, he said his friend’s full name was R.C.

[81]      Mr. M. returned to the house at the end of the day because he had a 9 o’clock curfew. He had been trying to reach Ms. W. but had no response. He was 20 minutes late for his curfew, and he encountered a bunch of police.

[82]      Mr. M. was shown some photographs. The photograph in Exhibit 2 showed no injury to Mr. M.’s face, but he believed that photograph was not taken on March 26, 2022 given his haircut. Exhibit 9 contained two photographs taken at the police detachment on March 26, and they depict a black mark below his lip. He said there was a lot of blood from that wound.

[83]      In cross-examination, Mr. M. agreed that Ms. W. did not have a broken nose or obvious bruising on her face and body at the beginning of the day on March 26, 2022.

[84]      During the incident, Mr. M. confirmed that Ms. W. struck his face with a knife and he grabbed the knife when she tried to stab him again. He denied that he was angry; he was protecting himself and there were two children in the house. He denied that Ms. W. only used a butter knife to defend herself after allegedly being punched and strangled. He did not call the police because he was on a Conditional Sentence Order and children were in the house. He did not want to call the police on the children’s mother or their mother figure.

[85]      A few weeks prior to March 26, 2022, Mr. M. recalled that he and Ms. W. got into an argument on a Saturday morning around 9:00 or 10:00 am. She had been drinking. He was trying to leave, and she shut the front door to impede him. She then opened the door and yelled outside for help.

[86]      There was a neighbour outside doing yard work, and both the neighbour and Mr. M. shrugged their shoulders because Ms. W. could have easily left. After yelling for help, Ms. W. went inside to get her car keys and she left. He thinks she went to the pub to drink with her dad.

[87]      The night before this argument, Ms. W. was drinking and doing coke. When she is inebriated, she is argumentative and aggressive.

[88]      Mr. M. stayed at the house, and there was no police involvement. There was no physical contact, and he did not drag Ms. W. by the hair. He did not push his arm against her face. He denied making any threat.

[89]      Ms. W. liked full hair so she was constantly getting hair extensions. The extensions and hair would fallout, so there were bags of these hair extensions all over the house.

[90]      In cross-examination, Mr. M. said that he was annoyed when Ms. W. shut the door on him, but she was the angry one. She is a bad, angry drunk. He said he was patient, and he is a contractor with a business to run.

[91]      In the prior summer, Mr. M. only recalled an argument at his mother’s home in Maple Ridge in the evening. He did not recall her driving to Mission or running around barefoot.

[92]      One evening at the mother’s home, Ms. W. wanted to look at Mr. M.’s phone as she suspected he was talking to someone. He then wanted to see her phone, so they exchanged phones. Mr. M. saw some reference to Ms. W. having oral sex with another male, so he said “what the fuck is this” and put the phone to her face.

[93]      Ms. W. then became unhinged. She tried to get back her phone which was in Mr. M.’s sweater pocket. She lunged at him, ripped his sweater, and scratched his chest and neck. The scratches were not bleeding. His gold chain was ripped off.

[94]      Mr. M. and Ms. W. ended up on the floor, with his knees on her arms to stop her from scratching. He applied no other force and there was no choking.

[95]      Mr. M.’s mother walked in very quickly. Ms. W. calmed down at that point. Both Mr. M. and Ms. W. had a couple of drinks, but she would drink more than he did. She had been drinking before coming to his mother’s home. He told her she was in no state to drive, but she drove away.

[96]      Mr. M. said he pinned Ms. W. to protect himself. He could have run away, but everything happened in the spur of the moment. He agreed he was larger and stronger than Ms. W. To his knowledge, no one sustained injuries during this incident and no one sought medical treatment.

[97]      Mr. M. never went to Mission to find Ms. W., and he never threatened to break down someone’s door. He has never gone to Mission in the past to look for Ms. W.

[98]      After this incident, Ms. W. did write a character reference letter for Mr. M. for court purposes.

[99]      In cross-examination, Mr. M. reiterated that Ms. W. was the attacker, and he was restraining her on the floor. He said this was the only incident of this kind at his mother’s home.

[100]   During the summer of 2021, Mr. M. and Ms. W. were at a barbeque at her father’s home in Mission. Her father, P.W., his girlfriend and her family were there. Ms. W. got in an altercation with the girlfriend’s son. Mr. M. heard screaming and ran upstairs to see the son punching Ms. W. in the face. Mr. M. and P.W. pinned the son down. Ms. W. had a “boxer break” on her hand, and bruising to her eyes and cheek. She had been drinking.

[101]   In cross-examination, Mr. M. agreed he never called the police about any of the incidents. The only time he recalled Ms. W. going to the hospital was the day after the barbeque incident when she broke her hand.

[102]   Also in cross-examination, Mr. M. agreed he was bigger and stronger than Ms. W., and he played sports like rugby when he was younger. He was trained to avoid tackles. He also did some boxing and learned to punch with efficiency and strength.

[103]   Mr. M. admitted to having a criminal record with a number of convictions, which is only relevant as to credibility and not propensity.

[104]   I.M. is the mother of P.M. In 2021 and 2022, Mr. M. was dating Ms. W., and there was a time when he was living at his mother’s home in Maple Ridge.

[105]   Ms. M. did observe a dispute between her son and Ms. W. at her home. One evening, Ms. M. went to sleep and Ms. W. was not then in the house. Ms. M. was later awoken by noise in her son’s bedroom. She heard her son say, “S. stop it, just stop it” and she heard slapping.

[106]   Ms. M. opened the bedroom door and saw that her son’s shirt was ripped off, and there were scratches on his chest and slap marks on his face. Ms. W. was sitting on the bed crying and saying, “I’m sorry.” Ms. M. testified that Ms. W. was hysterical, and she could smell liquor on Ms. W.’s breath. Ms. W. was often inebriated when she came to the Maple Ridge home.

[107]   Ms. M. told Ms. W. to leave the room and to sit in the living room. She believed her son was picking up his necklace. When Ms. M. went to the living room, Ms. W. had left.

[108]   Ms. M. testified about another incident when Ms. W. was intoxicated and made an inappropriate comment to a neighbour’s 62-year-old mother. Ms. M. heard Ms. W. tell the woman, “You wouldn’t be so tough if I kicked that cane from under you.”

[109]   Ms. M. also testified that, following the barbeque incident, Ms. W. appeared proud that she had punched hard enough to hurt her own hand.

[110]   In cross-examination, Ms. M. said that Ms. W. looked more shocked than angry immediately following the Maple Ridge incident.

[111]   If Ms. W.’s account of the three incidents were wholly accepted, there would be no reasonable doubt that various assaults and chokings occurred, as well as a threat. Mr. M. struck or choked her without her consent, and on March 26, 2022 she suffered bodily harm.

[112]   However, Mr. M. provided an entirely different account of the three incidents. He claimed she attacked him with a steak knife on March 26, 2022, and she was also the attacker in the summer of 2021. Therefore, self-defence will also have to be considered.

[113]   As a result of the different accounts, this case requires an assessment of the credibility and reliability of a number of witnesses, including Mr. M. and Ms. W. In a case involving credibility, the legal principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742 and R. v. C.W.H., 1991 CanLII 3956 (BC CA), [1991] 68 CCC (3d) 146 apply.

[114]   I will enumerate the principles shortly but it is important to bear in mind that R. v. W.(D.) is not a one-size-fits-all magical incantation, as discussed in R. v. Ryon, 2019 ABCA 36.

[115]   The fundamental rule is that the burden of proving guilt of the accused is upon the prosecution. Further, the principle of reasonable doubt applies to issues of credibility as well as fact. It is not proper to view a decision in this case as an "either/or" choice. The verdict depends not on a stark choice of who was believed, but whether the charge was proven beyond a reasonable doubt.

[116]   Applying the case law, the analysis in a credibility case such as this one should be as follows:

[117]   In paragraph 107 of the case of R. v. Rochemont, 2017 BCSC 930 (CanLII), there is a useful summary of the many factors to consider in assessing a witness’ credibility and reliability. These factors include internal consistency, consistency with other evidence, corroboration or contradiction, the ability to observe, demeanour, motive, and inherent plausibility.

[118]   Concerning the March 26, 2022 incident, Mr. M. asserts that any application of force on his part was a result of him defending himself. He said Ms. W. attacked him with a steak knife, and he may have accidentally injured her when disarming her. Also, in the summer 2021 incident, he says he pinned her down, presumably in self-defence. Therefore, the provisions in s. 34 of the Criminal Code may apply.

[119]   I ought to consider self-defence only when there is an air of reality to it. At this preliminary stage, I am to consider the totality of the evidence and assume the evidence relied upon by the accused is true. I am not weighing credibility nor deciding the merits of the defence. (See R. v. Cinous, 2002 SCC 29 (CanLII), [2002] 2 SCR 3.)

[120]   Once self-defence has an air of reality, the Crown must disprove at least one of the elements in s. 34(1) of the Criminal Code beyond a reasonable doubt. Section 34(1) states:

[121]   The three inquiries in s. 34(1) can be conceptualized as the catalyst (belief of force against them), the motive (to defend or protect themselves), and the response. The catalyst considers the accused’s state of mind that led them to act, and their belief must be based on reasonable grounds that force or threat of force was being used against them. The motive considers the accused’s personal purpose in committing the act that constitutes the offence, and it is a subjective inquiry. The response requires that the act be reasonable in the circumstances. (See R. v. Khill, 2021 SCC 37.)

[122]   When determining whether the act of the accused was reasonable in the circumstances, the Court must consider the relevant circumstances of the accused, the other parties and the act, including but not limited to the following factors in s. 34(2) of the Criminal Code:

[123]   Courts ought not to weigh defensive actions to a nicety.

[124]   In my view, there is an air of reality to self-defence, if I simply treat Mr. M.’s account as true in light of the other evidence. I am not measuring the merits of the defence at this stage nor weighing credibility.

[125]   I realize the Crown is arguing that, using Mr. M.’s version, he did not even commit an offence because any injury to Ms. W. was accidental and certainly not an assault causing bodily harm. In other words, applying s. 34(1)(b) of the Criminal Code and using Mr. M.’s account, the Crown is saying there was no act by Mr. M. that constituted the offence giving rise to the charge.

[126]   I find that is too narrow a view of the self-defence argument here. Mr. M. is alleging that he had to apply some force on March 26, 2022 because Ms. W. was about to stab him for a second time, and regardless of whether any injury to her was accidental, it meets the air of reality test. He had some minor wound below his lower lip. I will discuss the merits of self-defence below.

[127]   To make findings of fact during these three incidents, I must first examine the credibility and reliability of the witnesses.

[128]   Mr. M’s account of the March 26, 2022 incident stands in sharp contrast to the objectively proven injuries sustained by Ms. W. that day. She had a bilateral nose fracture and bruising under both her eyes, on her neck and jaw, and on her shoulder, arm, chest and thighs. He even conceded that Ms. W. had no observable injuries just prior to the incident. He also said that when she collapsed after he took the knife from her, she did not fall hard. He did say she bruised easily.

[129]   Mr. M.’s version of events is therefore not credible because he said that, at most, he inadvertently hit her once when taking the knife from her. The photographs of Ms. W.’s injuries paint a different picture. Ms. W. appeared severely beaten with bruising on many places on her body, and Cst. Braddick observed these injuries and significant swelling to her face. Mr. W. described his daughter as battered and quite unresponsive.

[130]   Put simply, Mr. M.’s single act of disarming Ms. M. could not result in all the injuries she sustained. It beggars belief.

[131]   I also found it peculiar that Mr. M. said he was not angry, even after being stabbed by Ms. W. In court, Mr. M. regularly portrayed himself as the calm reasonable man, whereas Ms. W. was often depicted as an uncontrollable drunk.

[132]   Nevertheless, Mr. M.’s account of the incident in earlier March of 2022 was internally consistent. His account of the summer 2021 altercation was generally consistent with that of his mother, although the Crown surmises both Mr. M. and his mother were describing a different incident than the one reported to police.

[133]   The past character evidence about Ms. W. did not assist me much, but I appreciate that she can be mean when she is drunk and she has been in altercations with others in the past. I discuss this further below. I would note that Mr. M. is larger and stronger than Ms. W., and he has training in boxing.

[134]   Ms. W. provided a credible account of the events of March 26, 2022, because her injuries support her version of events during this unsettling day. She sustained not only a bilateral nose fracture but also bruising under both her eyes, on her neck and jaw, and on her shoulder, arm, chest and thighs. The photographs are objective evidence of the injuries, and Cst. Braddick and Mr. W. also observed these injuries.

[135]   Clearly, Ms. W. suffered many blows that day. Mr. M. conceded that he saw no injuries to Ms. W. earlier on March 26, 2022, and I find that all of her injuries resulted from the altercation.

[136]   There were some minor discrepancies in Ms. W.’s evidence. She was unsure if she was awake when the March 26^th incident began, but this is a small detail, and when she gave her statement to the police, she was understandably dazed. She also had previously disclosed that she picked up a fork and knife from the floor to defend herself, rather than just a butter knife, but her recollection was affected by her injuries and this is not a major inconsistency.

[137]   Ms. W. admitted to attempting to stab Mr. M. with a butter knife, but she said that occurred after she had been thrown around like a rag doll, and after she had been punched and strangled many times. I found that Ms. W. did give her evidence in a relatively calm and internally consistent manner, notwithstanding some understandable memory issues. She readily admitted that she can become mean when she drinks. She downplayed the role her drinking had in some incidents.

[138]   Ms. W. described an earlier alleged hair pulling incident in March of 2022, and her evidence was internally consistent and somewhat consistent with the photographs showing blood on her upper lip and her hair in the hair extensions. However, she did tell her father that her injuries were caused by her dog. I appreciate that victims of domestic violence will often cover up harm done to them by their partners, either out of fear or embarrassment.

[139]   Ms. W.’s account of the choking incident in the summer of 2021 was also internally consistent, although the police received no medical report about any injury to her left rib or lung despite having made requests. Even though Ms. W. said this choking incident happened, she did write a letter for court in favour of Mr. M. later in 2021.

[140]   Overall, I found Ms. W. to be a credible and reliable witness. Her evidence concerning the March 26, 2022 incident was consistent with her injuries. She can be mean when drinking, and she downplayed the role alcohol played in some incidents. In contrast, Mr. M.’s evidence regarding the March 26, 2022 incident was entirely inconsistent with the objective evidence of the injuries sustained by Ms. W. that day.

[141]   I will now draw conclusions from my analysis above. Concerning the March 26, 2022 incident, I reject Mr. M. evidence that he did not strike or choke Ms. W. other than possibly once in self-defence, and I find that he struck Ms. W. many times in the face, neck, arms and legs. The photographic evidence and bilateral nose fracture are objective pieces of evidence, indicating Ms. W. was struck many times and in various areas of her head and body. I also find that Mr. M. choked Ms. W.

[142]   However, I find that Ms. W. did stab or attempt to stab Mr. M. with some form of knife at some later point during the March 26^th altercation. Ms. W. conceded that she grabbed a butter knife towards the end of the altercation, and she referenced a knife to both the police and her own father. Of course, she described solely defensive action, and she said that she attempted to ward off Mr. M. by striking him with a butter knife in his leg area. In contrast, Mr. M. said he was struck by a steak knife below his lip at the beginning of the incident.

[143]   Ms. W.’s overall account of the March 26, 2022 incident aligns with the injuries she sustained, and I accept that her use of a knife was well into the incident. However, there is some photographic evidence of a small cut below Mr. M.’s lower lip, although Cst. Sidhu initially noticed no injuries to Mr. M. It is possible the small injury was caused by a knife.

[144]   Based on all the evidence, I find that on March 26, 2022, Ms. W. stabbed at Mr. M. with a form of knife some time after she had already been punched, choked, and thrown around to some degree. Her stabbing motion could have resulted in the small injury to Mr. M.’s face.

[145]   However, I am satisfied that the Crown has disproven self-defence beyond a reasonable doubt on the third prong of s. 34(1). Even if Mr. M. had some reasonable grounds to believe Ms. W. was attacking him with a knife under the first prong, and even if his action was to defend himself under the second prong, his actions were not reasonable in the circumstances under the third prong.

[146]   I come to that conclusion by addressing the s. 34(2) factors.

[147]   The threat of Ms. W. stabbing Mr. M. must be put in the context of my findings. Although I cannot say with precision when the stabbing or threat of stabbing occurred, I find that Ms. W. was struck or choked at least several times before this possibility of stabbing arose. He said he possibly hit her only once by accident, which cannot be true. She suffered multiple injuries caused by many blows, and Mr. M. admitted she was not visibly injured prior to the incident.

[148]   Mr. M. is also bigger and stronger than Ms. W., and by his own evidence, he quickly disarmed her. Even if I wholly accept that the small injury under his lip was caused by a stabbing, this injury pales in comparison to the beating suffered by Ms. W. At best, Mr. M. can say that he was threatened by a weaker woman holding some kind of knife, a woman whom he had already beaten.

[149]   The threat of Mr. M. being stabbed was perhaps imminent, but it was after he had struck or choked Ms. W. to some degree. Also, Mr. M. could have quite easily extricated himself from the situation.

[150]   Mr. M. delivered many blows to Ms. W., and he choked her, before and after any possible stabbing. He did not seek to avoid the conflict, he brought it about.

[151]   Yes, Ms. W. may have used and threatened to use a knife. Based on my findings, her actions were defensive in nature. Mr. M. had no weapon, but he was a much larger and stronger figure.

[152]   Again, Mr. M. is considerably larger and stronger than Ms. W. He was an athlete with boxer training. Even if Ms. W. became more aggressive when drinking, she was no match for Mr. M. I say this based on the evidence, the admissions made, and my observations of the two of them in court. By Mr. M.’s own admission, he quickly disarmed her.

[153]   This cuts both ways. Ms. W. has a history of being mean when she drinks, but Mr. M. has had a number of altercations with Ms. W.

[154]   Assuming Ms. W. did stab Mr. M. midway through the altercation, and assuming she did attempt to stab Mr. M. again, his response was still disproportionate when looking at the accepted evidence as a whole. He had already punched or choked her, and he did much more than accidentally hit her. His single act of disarming her could not be responsible for all the injuries she sustained. Again, she suffered a bilateral nose fracture which still needs to be repaired, as well as bruising under both her eyes, on her neck and jaw, and on her shoulder, arm, chest and thighs. By his account, it was relatively easy to disarm her, yet somehow she sustained these pronounced injuries.

[155]   I want to be clear here. Even if Ms. W. had stabbed Mr. M. at the beginning of the March 26, 2022 altercation, which is not my finding, his response would still have been grossly disproportionate. Based on the many injuries sustained by Ms. W. and the relatively minor injury sustained by Mr. M., he repeatedly struck her with great force. Simply put, he laid a beating on her and I am not measuring his response to a nicety.

[156]   Based on the above analysis under s. 34 of the Criminal Code, the Crown has disproved beyond a reasonable doubt that the actions committed by Mr. M. were reasonable in the circumstances. Any stabbing by Ms. W. was defensive in nature. Accordingly, Mr. M. is guilty of choking Ms. W. on March 26, 2022, and he is guilty of assault causing bodily harm on that date. Ms. W.’s injuries were significant and long lasting.

[157]   It would be unsafe to convict Mr. M. of the assault and threat allegations arising earlier in March of 2022. Although Ms. M. gave credible evidence in that regard, Mr. M. also gave internally consistent evidence about this earlier incident. I have a reasonable doubt given that she told her father that her injuries had been caused by her dog, and the photographic evidence there was not determinative. I realize victims of domestic violence often cover up the harm done to them by their partners, but I am unsure what actually occurred and suspicions are not enough. It is plausible that the hair extensions fell out without violence.

[158]   It would also be unsafe to convict on the summer 2021 allegations given the evidence of Mr. M.’s mother. She may have been referring to a different incident, but this was the only altercation she or the accused recalled happening at the Maple Ridge home. Ms. W. also wrote a letter of support to the Court following this allegation.

[159]   Mr. M. please stand up. I am acquitting you of Count 3 regarding the summer 2021 incident, and I am acquitting you of Counts 5 and 6 regarding the earlier March 2022 incident.

[160]   I am finding you guilty of choking Ms. W. on March 26, 2022, under Count 7, and I am finding you guilty of assaulting Ms. W. causing her bodily harm on the same date under Count 8.