Ontario Court of Justice

Date: 2023 03 13 Court File No.: Hamilton 20-9206

Between:

HIS MAJESTY THE KING

— AND —

JESSICA TADAM

Before: Justice J.P.P. Fiorucci

Heard on: August 12 and September 7, 2022 Reasons for Judgment released on: March 13, 2023

Counsel: Y. Laine, counsel for the Crown R. McCourt, counsel for the accused Jessica Tadam

FIORUCCI J.:

Introduction

[1] On July 9, 2020, the accused, Jessica Tadam, attended a Walmart store in Hamilton with a female friend. Mark Burai, an asset protection investigator employed by Walmart, observed the accused and her friend concealing items in a large purse that the accused was carrying over her shoulder. Mr. Burai testified that the accused and her friend passed the last point of purchase without paying for the merchandise. Mr. Burai followed the accused as she approached the exit and placed his hand on her purse. Mr. Burai says that he identified himself to the accused as Walmart security and asked her to return the stolen items.

[2] The accused claims that she did not conceal any items in her purse and paid for all of the merchandise she had when she left the store. She says that Mr. Burai did not identify himself and that she did not know he was a Walmart employee at any point during her interaction with him. The accused admits that she struck Mr. Burai in the head and ear area several times with a closed fist when they were in the parking lot. She claims that she did so in self-defence as Mr. Burai was grabbing her arm and hurting her and she was afraid.

[3] Mr. Burai denies grabbing the accused’s arm or injuring her. He maintains that the force he used was limited to holding on to the accused’s purse while urging her to return the stolen items. Mr. Burai testified that, while the accused was striking him, she told him that she had pepper spray and a knife and that she was going to stab him. The accused denies that she made any such threat to Mr. Burai.

[4] The accused fled the scene of the incident in a vehicle driven by her friend. Mr. Burai testified that, before the accused left the scene, she left behind the purse containing the items that she had stolen.

[5] The police located the accused the next day and charged her with assault and uttering a threat to Mr. Burai to cause his death. No theft charge was laid. The accused entered pleas of not guilty to both charges. The trial evidence presented by the Crown included the testimony of Mr. Burai and Mr. Brian Shipley, a uniformed security officer employed by Walmart, and CCTV video footage of the inside of the store and the parking lot. The video footage did not capture the accused striking Mr. Burai but shows the moments preceding the alleged assault, as the accused is leaving the store and walking through the parking lot with Mr. Burai holding on to her purse. The accused testified. She filed photographs of bruises she says Mr. Burai caused by gripping her arm tightly. The accused was the only Defence witness.

Issues

[6] The issues for me to decide are:

i) If there is an air of reality to the accused’s self-defence claim, has the Crown disproven any one of the three essential elements of self-defence beyond a reasonable doubt or proven beyond a reasonable doubt that the exclusion set forth in s. 34(3) of the Criminal Code applies? and

ii) Has the Crown proven beyond a reasonable doubt that the accused is guilty of assault and uttering a threat to cause death?

Legal Principles

The Burden of Proof on the Crown

[7] The accused is presumed innocent, and that presumption can only be displaced if her guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus [2]. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.

[8] I can accept all, some or none of a witness’s evidence. R. v. H.(S.M.), 2011 ONCA 215 [3]. A criminal trial is not a "credibility contest". The overriding consideration is whether the evidence as a whole leaves the trier of fact in a state of reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation. [4]

The Law of Self-Defence

[9] Section 34 of the Criminal Code is the defence of person provision. Three basic questions arise in all cases of self-defence:

(i) The “Catalyst”: s. 34(1)(a): did the accused believe, on reasonable grounds, that force was being used or threatened against them or another person?

(ii) The “Motive”: s. 34(1)(b): did the accused do something for the purpose of defending or protecting themselves or another person from that use or threat of force? and

(iii) The “Response”: s. 34(1)(c): was the accused’s conduct reasonable in the circumstances. [5]

[10] Section 34(2) provides a structure to determine whether the “Response” was reasonable in the circumstances. The court shall consider the relevant circumstances of the accused, the other parties and the act, including but not limited to nine listed factors:

(a) the nature of the force or threat;

(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;

(c) the accused's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(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;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the accused's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the accused knew was lawful.

[11] The burden rests on the Crown to prove beyond a reasonable doubt that the accused did not act in self-defence. [6] In order to defeat a self-defence claim, the Crown need only prove beyond a reasonable doubt that any one of the three elements in s. 34(1) is absent. [7]

R. v. W.(D.) in Self-Defence Cases

[12] The accused testified that she acted in self-defence when she struck Mr. Burai. In the Ontario Court of Appeal case of R. v. Reid (2003) [8], Moldaver J.A. (as he then was) suggested that a jury should be instructed along the following lines with respect to the first two principles in W.(D.) when the primary defence is self-defence:

1. If you accept the accused’s evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty.

2. Even if you do not accept the accused’s evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you, you will find the accused not guilty. [9]

[13] Therefore, with respect to the first two principles in W.(D.), I must instruct myself in accordance with the framework set out in Reid. Even if I do not believe or have a reasonable doubt that the accused was acting in lawful self-defence, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt that the accused is guilty of assault. The burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. [10]

Self-Defence is Unavailable to an Accused if s. 34(3) of the Criminal Code Applies

[14] Section 34(3) of the Criminal Code makes self-defence unavailable to the accused “if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully” [11].

[15] In R. v. T.A.S., 2016 SKPC 173 [12], Schiefner J. held that, where there is an air of reality to self-defence, the Crown can establish that the defence is not available to the accused by either proving beyond a reasonable doubt that any one of the essential elements of self-defence in s. 34(1) is not present or by proving beyond a reasonable doubt that the exclusion in s. 34(3) applies. I accept and adopt Schiefner J.’s summary of the law in the following paragraphs of T.A.S.:

39 Even if all of the elements of the defence of self-defence are present (including both the subjective and objective elements), subsection 34(3) excludes the application of that section in certain circumstances. It is this provision upon which the Crown argues that the defence of self-defence is not available to T.A.S. Subsection 34(3) makes inapplicable the defence if the person against whom the accused applied force was acting under the authority of law either in term of enforcement or administration thereof. The only exception to this exclusion is if the accused reasonably believes the person with authority, for instance, a peace officer, is acting unlawfully. This subsection reads as follows:

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully

40 Finally, while both the subjective and objective elements of the defence must be present for an accused to avail herself of the defence, an accused need only lead evidence sufficient to establish an "air of reality" to the defence. This is an evidentiary burden only and the evidence need not come directly from the accused. See: R v JG (2011), 2011 ABPC 3, 506 AR 389. But there must be some evidence on each of the elements set forth in subsection 34(1). If there is an "air of reality" to the defence, the Crown must prove beyond a reasonable doubt that the defence is not available to the accused. In doing so, the Crown is not required to prove beyond a reasonable doubt that the accused failed on every element of the defence. It suffices if the Crown can prove beyond a reasonable doubt that any one of the elements is not present or that the exclusion set forth in subsection (3) applies. See: Pankiw and Polapady [emphasis added]. [13]

Analysis

The Evidence Regarding the Theft of Merchandise

[16] Mr. Burai testified that his primary duty as an asset protection investigator at Walmart was to minimize potential losses to his employer, including losses occasioned by shoplifting and lawsuits. On July 9, 2020, he was working in plain clothes monitoring shoppers from the CCTV room as well as on the floor.

[17] The accused is not charged with theft in relation to the July 9, 2020 incident. Notwithstanding, Mr. Burai testified about observations he made, through CCTV surveillance, of the accused and her friend concealing items in the accused’s purse. Mr. Burai went on to testify that he watched the accused and her friend pass the last point of purchase without paying for the items in the purse, which caused him to follow the two women out of the store.

[18] It is important to delineate the relevance of the evidence relating to the alleged theft of merchandise by the accused, and the prohibited uses of this evidence. The accused denies that she left the store with any unpaid items. She claims that she struck Mr. Burai in self-defence because he was gripping her arm tightly and hurting her and because she was afraid of him. Ms. Tadam’s evidence meets the “air of reality” threshold for consideration by the trier of fact. It is evidence that has been put forward that, if believed, could result in an acquittal. [14]

[19] Accordingly, I must consider the accused’s self-defence claim to determine whether the Crown has proven beyond a reasonable doubt that at least one of the essential elements of self-defence in s. 34(1) is not present or has proven beyond a reasonable doubt that the exclusion set forth in s. 34(3) applies.

[20] The Crown asserts that the accused struck Mr. Burai because she knew that he was a Walmart employee who was trying to prevent her from leaving the store with the merchandise and she was also concerned that she would be apprehended for theft.

[21] For reasons set out below, I find as a fact that the accused left the Walmart store without paying for items that she had concealed in her purse. My finding of fact that the accused stole merchandise provides the necessary context to assess her claim that she did not know who Mr. Burai was and that she acted in self-defence when she struck him. It is also relevant to assessing Mr. Burai’s authorization to act as he did when he pursued the accused.

[22] I have cautioned myself regarding the prohibited uses of this evidence. I have not used the evidence that the accused stole merchandise from Walmart to infer that she is the type of person likely to have committed or capable of committing the offences with which she is charged. [15] Furthermore, I have not used the fact that the accused stole merchandise to infer that she is a person of bad character and thereby less worthy of belief.

[23] However, the accused’s testimony when confronted by Crown counsel regarding the theft was implausible and inconsistent with other credible and reliable evidence in the case. This can properly be taken into account in assessing the accused’s testimonial trustworthiness. [16]

Findings of Credibility

[24] Mr. Burai was a credible witness who gave reliable evidence regarding his interactions with the accused. He gave his testimony in a balanced way, making appropriate concessions. For instance, he agreed with Defence counsel’s suggestion that, given the passage of time between the incident and the trial, it was possible that there were parts of the altercation with the accused that he did not remember perfectly and that he could not recall everything the accused said during the altercation. However, he testified that he recalled the significant aspects of his interaction with the accused. Mr. Burai presented as a witness who was committed to telling the truth. He gave his evidence in a forthright manner and material portions of his evidence were corroborated by the video evidence and by the testimony of Mr. Shipley.

[25] The accused’s evidence was an emotional delivery of denials of any wrongdoing whatsoever in relation to the events of July 9, 2020. She portrayed herself as the victim of an unprovoked attack by a complete stranger which left her with no choice but to strike him. Many portions of the accused’s evidence were implausible. She refused to make appropriate concessions when confronted with other credible and reliable evidence in the case, including the video evidence. This significantly compromised her credibility as a witness and caused me to reject her evidence on material points. Overall, I found the accused to be a witness whose testimony was unworthy of belief.

The Theft and the Accused’s Claim She Did Not Know Mr. Burai Worked for the Store

[26] I accept Mr. Burai’s evidence, and find as a fact, that he saw the accused and her friend conceal items in the accused’s purse. Two videoclips filed as part of Exhibit 1 corroborate Mr. Burai’s testimony in this regard. [17]

[27] I also accept Mr. Burai’s testimony, and find as a fact, that the accused left her purse behind in the parking lot after she struck Mr. Burai, and that Mr. Burai located stolen merchandise in the purse. Mr. Burai testified that, after he recovered the purse, he returned to the store and created a “training receipt” to calculate the total monetary value of the stolen items. He stated that the purse contained no items of personal property, only property that belonged to Walmart. Although Mr. Shipley was unable to say with certainty that the accused left her purse behind, he did recall seeing Mr. Burai recover merchandise which provides some corroboration for Mr. Burai’s testimony on this point.

[28] The accused’s testimony that she did not conceal items in her purse is not only inconsistent with Mr. Burai’s evidence but is also inconsistent with the video evidence. Throughout her testimony, the accused denied stealing merchandise which went hand in hand with her claim that she had no idea who Mr. Burai was when he approached her as she left the store. In fact, the accused says she had no idea who Mr. Burai was at any point before she struck him.

[29] Mr. Burai testified that when he followed the accused out of the store, he took his badge out of his pocket and showed it to the accused. According to Mr. Burai, this happened in the vestibule area. He told the accused he was with Walmart security and asked her to return the merchandise that she had concealed in her purse. Mr. Burai testified that, as soon as he requested the merchandise back, the accused began to use profanity toward him, telling him to let go of her purse and stating that she did not have any merchandise. Mr. Burai described the accused’s demeanour as aggressive, very defensive, and very evasive by walking away from him and into the parking lot as he was asking for the return of the merchandise.

[30] Mr. Burai’s evidence in this regard was corroborated by Mr. Shipley’s testimony. Mr. Shipley recalled that Mr. Burai was walking out the front doors, holding on to a lady's purse as the lady was swearing at him (Mr. Burai) and threatening him (Mr. Burai).

[31] Defence counsel did not specifically confront Mr. Burai in cross-examination with the suggestion that he did not identify himself to the accused. Instead, the focus of Defence counsel’s questioning was on where Mr. Burai showed the accused his badge, the fact that none of the videos depict him showing the accused a badge, and the fact that, because Mr. Burai said he was very subtle when he showed the accused his badge, the accused may not have noticed it.

[32] The cross-examination of Mr. Burai did nothing to cause me to doubt the credibility and reliability of his evidence that, as he followed the accused out of the store, he identified himself as Walmart security and asked the accused to return the stolen merchandise.

[33] The accused denied that Mr. Burai showed her anything or that he identified himself in any way. She also denied that he asked her to return the merchandise she had in her purse. Again, the accused claimed that she had no idea that Mr. Burai was an employee of Walmart at any point during her interaction with him.

[34] The following exchange occurred between Defence counsel and the accused:

Q. In terms of what was said by you to him, do you remember saying anything to him?

A. Other than the fact that he was hurting me, to let go of me, I wasn’t sure why he was grabbing me because I did have a bill in my bags with me from the purchase that I had made.

[35] The accused’s response suggests that she did, in fact, know that Mr. Burai was an employee of Walmart, and knew the reason he had followed her out of the store. Crown counsel delivered a significant blow to the accused’s credibility when she followed up on this area of questioning in cross-examination:

Q. Yeah. So, he approached you and when he approached you, he said that he wanted the store’s merchandise back and you said that you disagree that he said that?

A. I don’t remember him saying that.

Q. You don’t remember him saying that but you don’t disagree that he said it?

A. No, I know he did not say that.

Q. Okay. So, just a few moments ago, you testified in examination in-Chief, that - it was put to you, what was said by you to him, do you recall saying anything to him and you said, just that you - he was hurting you and to let you go. And then you went on to state, you weren’t sure why he was grabbing you because you had a bill in your bag with you for the purchase that you’d made. Do you remember testifying about that?

A. Yeah.

Q. Yeah. So, I’m going to suggest to you that that’s what’s going through your mind at the time, that you’ve got a bill in your bag at the time, right?

A. Yes.

Q. And so, you weren’t sure why this person was approaching you because you had a bill for the items that you’d purchased, right?

A. Yes.

Q. Okay. So, I’m going to suggest to you that you knew when he approached you that he worked for the store?

A. No, I couldn’t think of any other reason why anybody would be putting their hands on me to begin with...

Q. All right.

A. ...is why I assumed that.

Q. Right. So, you assumed that he worked for the store and that’s why you were thinking about that bill in your bag, right?

A. That wasn’t right at the time, no, I - that was after - what I thought after the point.

Q. Okay. I thought you...

A. When I thought about it after.

Q. All right. I thought you said just a moment ago that that was going through your mind at the time that you had a bill for your purchases in your bag?

A. Well, it was two years, so I can’t word for word recall exactly what was going through my mind at that time.

Q. Okay. I’m going to suggest to you that’s precisely what was going through your mind at the time, that this person is approaching you inside the Walmart store and you were worried that it was somebody working for the Walmart in relation to the items that you were leaving with the store with?

A. I disagree with that, but okay.

[36] In the foregoing exchange, the accused initially agreed with Crown counsel that at the time she was not sure why Mr. Burai was approaching her because she had a bill in her bag for the items she had purchased. That is, she agreed that what was going through her mind at the time was the bill in her bag. Although the accused refused to admit that she knew Mr. Burai was an employee of Walmart, she says, “I couldn’t think of any other reason why anybody would be putting their hands on me to begin with…...is why I assumed that”. The accused’s claim that she was unaware that Mr. Burai was a Walmart employee yet assumed that the only reason he would put his hands on her related to the purchases she had made in the store is completely illogical.

[37] The accused’s testimony becomes even more incredible when she tries to retract her earlier evidence. As the questioning continues, the accused says that these things were not going through her mind at the time, but rather when she thought about it after. The accused’s testimony in this area is internally inconsistent and completely unworthy of belief which contributes to my finding that the accused is not a credible and reliable witness.

[38] The video entitled “FRONT DOOR” depicts the accused and Mr. Burai walking side by side approaching the inner doors of the store. These doors lead into a vestibule area between the inner doors and the exterior doors which lead into the parking lot. The “FRONT DOOR” video shows the accused carrying a purse over her left shoulder that resembles the purse she had inside the store. Mr. Burai is holding on to the accused’s purse with his right hand as he continues to walk beside her through the vestibule area.

[39] The video entitled “FRONT WEST” shows the accused and Mr. Burai exiting the vestibule through the exterior doors and walking into the parking lot. Mr. Burai is still beside the accused and is still holding on to her purse with his right hand.

[40] The accused’s testimony in this area provides further confirmation that her evidence is unreliable and unworthy of belief. The following is an exchange between Crown counsel and the accused:

Q. Prior - prior to that and so, when he first approaches you in the store and puts his hand on your bag, is it your evidence that it’s not running through your mind that this might be an employee of the store?

A. I had never even acknowledged that at that point that he had his hand on my bag or anything.

Q. You didn’t acknowledge...

A. Because he did not say anything to me. I was just walking out of the store like, I didn’t acknowledge him or - at all at that point.

Q. Okay. You knew he had his hand on your bag?

A. Until we got out of the store, I did not know.

Q. You didn’t feel his hand on your bag or his presence directly beside you prior to leaving the store?

A. No, because he did not make his presence known. He did not say anything to me.

Q. You didn’t see him right beside you?

A. At that moment, no, I was walking out of the store.

[41] Crown counsel confronted the accused with the “FRONT DOOR” video, which resulted in the following exchange:

MS. LAINE: I’m going to press play here, we’re - we’re at the very beginning of the video, Your Honour.

...Exhibit Number 1, a video recording commences playing - the video recording is paused.

MS. LAINE: Okay. I paused it there at 22:03:13:66.

MS. LAINE: Q. That’s you, right? On the right-hand side?

A. Yes.

Q. And that’s Mark, who’s right beside you, right?

A. Yes.

Q. And you’re looking right at him, right?

A. Yes.

Q. And I’m going to suggest to you that when you said earlier that you didn’t acknowledge that he was right beside you until you were outside of the store, that’s not true, do you agree?

A. I don’t because I just felt it was somebody else walking beside me.

Q. Walking directly shoulder to shoulder with you?

A. Yes.

Q. I’m going to suggest to you that you - you realized that he wanted to speak with you or deal with you even before you left the doors of the store and that’s clear from this video, do you agree?

A. No, I disagree.

[42] The accused’s testimony that she did not see Mr. Burai or feel his hand on her bag or his presence directly beside her prior to leaving the store is wholly inconsistent with what is seen in the “FRONT DOOR” video. Although there is no sound on the video, it clearly shows that the accused is interacting with Mr. Burai and looking directly at him at times, as they are walking out of the store side by side.

[43] When Crown counsel played the video, the accused was forced to admit that she was looking right at Mr. Burai. However, she refused to admit that her earlier testimony -about not acknowledging Mr. Burai until they were outside the store - was untrue. She chose instead to give the nonsensical answer, “I don’t (agree) because I just felt it was somebody else walking beside me”. The accused insisted that her earlier answer was accurate even when confronted with contradictory video evidence.

[44] The accused steadfastly maintained that Mr. Burai did not identify himself or say anything about wanting her to return merchandise. At one point in her evidence, the accused claimed that, even after she realized that Mr. Burai was right beside her and had his hand on her purse, she believed he was just another civilian walking out of the store.

[45] The accused’s evidence is incredible and implausible. It is implausible that Mr. Burai, an asset protection investigator trying to prevent a loss to his employer, would take hold of the accused’s purse, without identifying himself or stating his purpose to her.

[46] I find as a fact that the accused concealed items in her purse and left the store without paying for them. I also find as a fact that Mr. Burai identified himself to the accused as Walmart security when he placed his hand on her purse as they walked out of the store together, and that he asked the accused to return the stolen merchandise.

[47] I accept Mr. Burai’s evidence that he discreetly showed the accused his badge. It is unnecessary for me to find as a fact that the accused saw the badge. Based on the totality of the evidence, including the video evidence, I find that the only reasonable inference is that the accused knew that Mr. Burai was employed by Walmart and was seeking the return of the stolen merchandise.

Mr. Burai’s Use of Force to Prevent the Loss of Merchandise

[48] On the issue of the extent of the force used by Mr. Burai, the evidence of Mr. Burai and the accused diverges at the point where the “FRONT WEST” video no longer shows the two of them. Mr. Burai testified that he only grabbed hold of the accused’s purse and never placed his hands on her person, even after the accused began to strike him in the neck, head, and face. According to Mr. Burai, at the very end of the altercation, he also unzipped the purse trying to recover merchandise. The accused, on the other hand, claimed that Mr. Burai gripped her arm which caused her pain, and ultimately resulted in bruising.

[49] Mr. Burai’s evidence on this point is corroborated by Mr. Shipley’s testimony. Mr. Shipley testified that Mr. Burai was holding on to the accused’s purse and telling her to give the stolen items back before the accused struck Mr. Burai. The accused continued to hold on to the purse when Mr. Burai was requesting the products back. The following exchange occurred between Crown counsel and Mr. Shipley in examination-in-chief:

Q. …You mentioned that Mark was holding on to her purse, do you recall seeing Mark touch her on any other part - on, on her body at all?

A. No, not at all, however, I was trying to get her away from Mark while this was happening.

[50] Mr. Shipley was close to Mr. Burai and the accused while the altercation moved toward the accused’s friend’s vehicle. In fact, Mr. Shipley is seen in the “FRONT WEST” video, in uniform, following Mr. Burai and the accused until they go off camera. I accept Mr. Shipley’s evidence that he practically stayed right beside Mr. Burai up until the point when the accused punched Mr. Burai, and I also accept Mr. Shipley’s evidence that he tried to get the accused away from Mr. Burai by pushing her. Mr. Burai’s evidence in this regard is consistent with Mr. Shipley’s. Mr. Burai said that Mr. Shipley, “tried to assist in kind of getting in between me and the accused so she would stop punching me in the head”.

[51] Mr. Shipley, therefore, was able to observe the entire interaction leading up to the accused striking Mr. Burai. I accept his evidence that he did not see Mr. Burai touch the accused on any other part of her body and that he only observed him holding on to the purse.

[52] A close examination of the accused’s evidence regarding the amount of force used by Mr. Burai strikes another debilitating blow to her testimonial credibility. The frailties in the accused’s evidence on this point begin with her response to the second question posed by Defence counsel in examination-in-chief. In response to counsel’s inquiry about what happened when she left the Walmart that evening, the accused replies, “[s]o, you can see on the video like, he used like, very strong force and gripped my arm and was kind like, throwing me and dragging me around the parking lot, as you can see in the video”. The video shows nothing of the sort. As stated, the video from both inside the store and outside in the parking lot shows Mr. Burai with his hand on the accused’s purse, not gripping her arm with strong force.

[53] The FRONT WEST video does not show Mr. Burai throwing and dragging the accused around the parking lot. To the contrary, at one point in the parking lot, the accused drags and pulls Mr. Burai around in a circle as he continues to hold on to the purse. Notwithstanding the clarity of what is depicted in the FRONT WEST video, the accused maintains in cross-examination that the video depicts Mr. Burai attacking her:

Q. Did you see that attack on the video that we watched - the videos that we watched?

A. As you can see in the video, he is aggressively like, swinging me around in the - in the video.

Q. I’m going to suggest to you, ma’am, that’s you pulling away from him...

A. That is not me.

Q. ...and pulling your - you just have to let me finish my question. That’s you pulling away from him while he had a hold on your bag?

A. That’s not true. You can see in the video, it’s not me pulling away. It’s me being pushed or dragged around.

[54] The accused goes on to say that Mr. Burai was fighting her for her bags, and she disagrees with Crown counsel’s suggestion that Mr. Burai is barely moving at all except for being pulled around by her while holding on to the purse.

[55] The accused again showed herself to be a witness who was unwilling to make concessions that were damaging to her narrative, even when she was confronted with clear contradictory video evidence. Ultimately, this contributes to my finding that the accused’s evidence is unworthy of belief. It also diminishes the credibility and reliability of her evidence that she acted in self-defence when she struck Mr. Burai, and her denial that she threatened him.

[56] I accept Mr. Burai’s testimony regarding the amount of force he used. I find as a fact that, at no point, did Mr. Burai grab the accused’s arm and grip her tightly as the accused alleged. Mr. Burai’s use of force was limited to placing his hand on the accused’s purse and holding on to the purse as he walked through the parking lot with the accused, and she tried to pull away from him. The altercation ended with Mr. Burai unzipping the purse and retrieving merchandise and the accused leaving the purse behind after striking Mr. Burai several times. As I have rejected the accused’s evidence that Mr. Burai gripped her arm, I reject her evidence that any bruising depicted in the photographs filed as Exhibit 2 were caused by Mr. Burai.

Section 34(3) Bars the Accused’s Reliance on Self-Defence

[57] If the Crown can prove beyond a reasonable doubt that the exclusion in s. 34(3) of the Criminal Code applies to the circumstances of the accused’s case, the accused is precluded from relying on self-defence to excuse her otherwise criminal conduct and render it non-culpable.

[58] I invited counsel to make submissions on the applicability of s. 34(3). Defence counsel conceded that Mr. Burai met the criteria in s. 34(3) of being a person “required or authorized by law” to use force “in the administration or enforcement of the law”. I agree with this concession. In my analysis, I will consider R. v. Vidovic, 2013 ABPC 310 [18], an Alberta Provincial Court decision in which the presiding judge espouses the contrary view that s. 34(3) is limited to police officers who perform their function as a public duty. I find that there is no public policy reason to limit s. 34(3) to incidents involving police officers.

[59] Notwithstanding the Defence concession that Mr. Burai was authorized to use force in the administration or enforcement of the law, Defence counsel nonetheless argues that s. 34(3) does not bar the accused’s self-defence claim because the accused believed on reasonable grounds that Mr. Burai was acting unlawfully.

[60] I will begin by reviewing the source of Mr. Burai’s authority to use the force he did when he followed the accused out of the store. Mr. Burai is not a police officer. He was employed by Walmart to prevent losses to the company. I have found as a fact that Mr. Burai witnessed the accused committing the indictable offence of theft.

[61] Mr. Burai did not testify that he was attempting to arrest the accused for theft. Had he chosen to do so, s. 494 of the Criminal Code authorized Mr. Burai to arrest the accused without a warrant for theft and to forthwith deliver her to a peace officer. Section 25 of the Criminal Code states:

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

[62] Section 25, therefore, authorizes a private person to use as much force as is necessary to make an arrest without a warrant under s. 494 and protects the person from liability for using such force. I note that, in s. 25, Parliament recognized that a private person can be someone who is “required or authorized by law to do anything in the administration or enforcement of the law”.

[63] Mr. Burai’s stated purpose for holding on to the accused’s purse was to prevent her from leaving with the stolen merchandise. His goal was to recover the merchandise to avoid a loss to his employer.

[64] Section 27 of the Criminal Code states:

27. Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

[65] In R. v. Hebert [19], the Supreme Court of Canada said the following about s. 27 of the Criminal Code:

Similarly, s. 27 justifies the use of force which is reasonably necessary to prevent the commission of an offence. This section is of general application and the person asserting the justification need not be a peace or public officer or a member of a restricted class of persons. However, the section is clearly designed to permit an innocent bystander, who witnesses an offence being or about to be committed, to use force to prevent the offence from occurring...

[66] Mr. Burai’s use of force was minimal. He held on to the accused’s purse and tried to persuade her to return the stolen merchandise. In doing so, he was using as much force as was reasonably necessary to prevent her from committing the offence of theft for which she could be arrested without a warrant under s. 494. I also find that the offence of theft, in the circumstances, was likely to cause immediate and serious injury to the property of Mr. Burai’s employer. Mr. Burai testified that the approximate value of the merchandise the accused had stolen was $300.00 or $350.00. When Defence counsel suggested to Mr. Burai that he could have just let go of the purse and gone back into the store, Mr. Burai spoke of his duty of care to Walmart and stated:

And, we were talking about, you know, $300, $350. Trust me, if it was $20, $50, this situation would have been a lot different.

[67] In law, Mr. Burai was authorized to restrain and arrest the accused and forthwith deliver her to a peace officer. Instead, he chose to use less force by only placing his hand on her purse. I find that he was authorized to do so pursuant to s. 27 of the Criminal Code. The accused responded to Mr. Burai’s authorized use of force by striking him multiple times.

[68] Bill C-26 came into force on March 11, 2013 and introduced extensive amendments to the law of self-defence, defence of property and citizen's arrest (Citizen's Arrest and Self-defence Act, S.C. 2012, c. 9, s. 2). Included in the reform of the self-defence provisions was the enactment of s. 34(3).

[69] In R. v. Khill, the Supreme Court of Canada referred to the “Technical Guide for Practitioners” which the Department of Justice published to promote "a common understanding of the purpose and effect of the reforms" to the law of self-defence (Department of Justice, Bill C-26 (S.C. 2012 c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners, March 2013 (online) ("Technical Guide"), at p. 1).

[70] Reference to the Technical Guide assists in understanding Parliament’s intention in enacting s. 34(3). The following statements are included in the Technical Guide:

Defensive Action against Police Conduct

A third and final element of the new self-defence law is found in new subsection 34(3). Briefly, this subsection sets out the rule that must be applied in the special circumstances of a claim of defensive action against police conduct. The reason for this rule and its anticipated application are discussed later in this guide.

The elimination of the "unlawful assault" requirement as part of the triggering threat element creates potential unwanted consequences in relation to resistance to police actions, because it could leave the impression that the new law will allow defensive reactions to lawful police conduct such as the making of an arrest. More specifically, if a person does not willingly submit to an arrest, they may have a reasonable perception that they are being threatened with force that is against their wishes and consequently meet the first requirement for the new defence under paragraph 34(1)(a).

While the requirement under paragraph 34(1)(a) may be met in these cases, the express "defensive purpose" requirement (paragraph 34(1)(b) may effectively rule out the defence in cases where the accused used force against the police in an effort to escape arrest or to otherwise evade or frustrate whatever action the police are undertaking. This is because the defensive purpose element requires the accused to present some evidence that their dominant purpose was to protect their bodily integrity from the incoming force, as opposed to the purpose of escaping capture, for instance.

Even though the "defensive purpose" requirement may be enough to ensure that the defence fails in cases where force is used to escape or impede law enforcement activity, subsection 34(3) provides an additional layer of protection against inappropriate uses of self-defence in these cases by directing the inquiry to the unique considerations such cases raise. On the one hand, the law must permit a person to defend against any unwanted touchings, even of a trivial nature, because the application of any force without a person's consent is an assault and every person is entitled to govern their bodily integrity. On the other hand, the police must use force for certain purposes, such as when making an arrest.

This use of force by police is authorized by law, but is not unfettered. The use of force must be lawful both in the sense that the use of force in the circumstances must be a valid exercise of authority and that the manner and extent of force used must be reasonable to those circumstances. Police conduct that does not meet these requirements is unlawful, and citizens are legally entitled to resist such applications of force by the police where they reasonably believe such force to be unlawful in the circumstances.

The new rule provided by subsection 34(3) is consistent with the way the old law applied to these circumstances, but it accomplishes its objective in a different way.

[71] In R. v. Vidovic, 2013 ABPC 310 [20], a casino security guard, Mr. Mock, asked the accused and his friend to leave because they were too intoxicated to gamble. Mr. Mock testified that he put his hand on the accused’s arm to direct him out. The accused refused to leave. The accused then violently shoved Mr. Mock. Mr. Mock said that the accused’s friend charged at him, so he put his forearm and elbow in front of the friend’s neck and brought him to the ground. Two other guards also helped Mr. Mock restrain the friend. Other guards were dealing with the accused. While Mr. Mock was restraining the accused’s friend, he felt a blow to his jaw. Video of the incident showed that the accused kicked Mr. Mock in the jaw. The video also showed that the accused assaulted two other guards. Police arrived and the accused and his friend were arrested. At trial, the accused claimed that he was defending himself and his friend.

[72] In Vidovic, Allen J. explained that, pursuant to common law, Alberta’s Trespass to Premises Act and Alberta’s Gaming and Liquor Act, the security guards were authorized to ask patrons to leave the casino, and that the power to evict carries with it the power to use reasonable and necessary force in order to exercise the power.

[73] The Crown argued that Mr. Vidovic could not rely on the defence of person provisions in s. 34 because s. 34(3) was wide enough to include the actions of the security guards and it was not reasonable in all of the circumstances for the accused to believe that the security guards were acting unlawfully.

[74] Allen J. stated that the authors of the Technical Guide did not agree with the Crown’s interpretation of the meaning of s. 34(3):

196 The Technical Guide expressly states that the new rule under s. 34(3) applies in the special circumstances of a claim of defensive action against police conduct; s. 34(2)(h) is meant to be applied to other persons involved in administrating the law: Technical Guide at pp. 11, 28, and 29. Furthermore, the authors add that the intent behind creating this exception is to address those situations where the accused used force to escape arrest or impede law enforcement activity and to provide an "additional layer of protection" against such inappropriate uses of self-defence": Technical Guide at p. 30. The Technical Guide commentary suggests that the exemption under s. 34(3) only contemplates application to the police.

197 In my view, the authors of the Technical Guide are likely correct. The terminology in the s. 34(3) must be considered as a whole in view of the ordinary meaning of the words in the section. The relevant words of the section are "the force used or threatened by another person for the purpose of doing something they are required by law to do in the administration or enforcement of the law." It could be argued that security guards are persons who are authorized by statute or common law to evict individuals or arrest them. However, it is far less certain that they are doing so in the administration or enforcement of the law. Security guards are exercising their authority based upon the wishes of the owners of the property. Police officers perform their function as a public duty. [21]

[75] With respect, I take a different view than Allen J. regarding the interpretation that should be given to s. 34(3). I recognize that the Technical Guide produced by the Department of Justice repeatedly refers to “police” actions and conduct when setting out Parliament’s intention in enacting s. 34(3). However, the following words of the Technical Guide reflect the public policy reason for the enactment of s. 34(3):

Even though the "defensive purpose" requirement may be enough to ensure that the defence fails in cases where force is used to escape or impede law enforcement activity, subsection 34(3) provides an additional layer of protection against inappropriate uses of self-defence in these cases by directing the inquiry to the unique considerations such cases raise [emphasis added].

[76] In my view, in determining whether s. 34(3) applies, it is irrelevant whether the person who uses force against the accused is performing their function as a public duty, such as a police officer, or is in the employ of a private company, such as Mr. Burai. Section 34(3) is meant to protect against the inappropriate use of self-defence to escape or impede law enforcement activity. In the circumstances of this case, there is no valid reason to eliminate the additional layer of protection against the inappropriate use of self-defence simply because Mr. Burai was not a police officer.

[77] Based on my findings of fact, Mr. Burai was authorized to arrest the accused without a warrant and use as much force as was necessary for that purpose. Pursuant to s. 25 of the Criminal Code, if Mr. Burai was arresting the accused, he would meet the definition of a private person who was “required or authorized by law to do anything in the administration or enforcement of the law”. Therefore, s. 25 contemplates that someone who is “required or authorized by law to do anything in the administration or enforcement of the law” can be a private person.

[78] Section 34(3) uses language that is identical to s. 25:

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

[79] The fact that Mr. Burai chose to use force to prevent the commission of the offence of theft, as authorized by s. 27 of the Criminal Code, instead of using the force he was authorized to use pursuant to s. 25 to make an arrest, should not shed the additional layer of protection against the inappropriate use of self-defence offered by s. 34(3). Put simply, Mr. Burai was still someone who used force for the purpose of doing something that he was “required or authorized by law to do in the administration or enforcement of the law” when he attempted to prevent the commission of a criminal offence rather than make an arrest for that offence.

[80] Mr. Burai’s employment as an asset protection investigator puts him at risk of being involved in violent incidents such as the one that occurred with the accused. There is no valid public policy reason to interpret s. 34(3) as applying only to force used by police officers, as this would encourage perpetrators like Ms. Tadam to use force against asset protection investigators and security guards in order to avoid apprehension for theft and make good their escape, and to later claim that they were acting in self-defence.

[81] Having found that the s. 34(3) exclusion applies to the force used by Mr. Burai, I now turn to the question of whether the accused believed on reasonable grounds that Mr. Burai was acting unlawfully. I have found as a fact that the accused knew she had stolen merchandise from the store and knew that Mr. Burai was employed by Walmart when he grabbed hold of her purse, identified himself as Walmart security, and requested the return of the merchandise.

[82] Mr. Burai’s use of force was minimal, and the accused knew that he was holding on to her purse to prevent her from leaving with the stolen merchandise. The accused was mistaken in law if she believed that Mr. Burai was not entitled to use force to prevent her from committing the offence of theft. Her mistaken belief does not provide her with reasonable grounds to believe that Mr. Burai was acting unlawfully. In this case, the evidence demonstrated that the accused knew Mr. Burai was fulfilling his duties as a Walmart security officer when he used force to prevent her from leaving with the stolen merchandise. Any belief she may have had that Mr. Burai could not touch her or hold on to her purse in the execution of his duties was not reasonable.

[83] The Crown has proven beyond a reasonable doubt that the exclusion set forth in s. 34(3) applies. Therefore, I find that the accused cannot rely on self-defence in s. 34(1) as justification for striking Mr. Burai, and thereby avoid culpability for the assault charge.

[84] However, if I have erred in finding that s. 34(3) applies to bar the accused from relying on self-defence, I find that, nonetheless, an application of the self-defence analysis required by s. 34(1) results in the Crown satisfying its burden to prove beyond a reasonable doubt that the accused did not act in self-defence.

Section 34(1)(a): The “Catalyst”

[85] The first element requires the accused to believe on reasonable grounds that force is being used against her or another person or that a threat of force is being made against her or another person. The accused had reasonable grounds to believe that force was being used against her by Mr. Burai when he placed his hand on her purse and continued to hold on to her purse as he accompanied her out of the store and into the parking lot.

Section 34(1)(b): The “Motive”

[86] The second element of self-defence examines “the accused’s personal purpose in committing the act that constitutes the offence”. [22] In Khill, Martin J. explained that this is a subjective inquiry:

Section 34(1)(b) requires that the act be undertaken by the accused to defend or protect themselves or others from the use or threat of force. This is a subjective inquiry which goes to the root of self-defence. If there is no defensive or protective purpose, the rationale for the defence disappears (see Brunelle v. R., 2021 QCCA 783, at paras. 30-33; R. v. Craig, 2011 ONCA 142, 269 C.C.C. (3d) 61, at para. 35; Paciocco (2008), at p. 29). The motive provision thus ensures that the actions of the accused are not undertaken for the purpose of vigilantism, vengeance or some other personal motivation. [23]

[87] Martin J. went on to say:

At the same time, great care is needed to properly articulate the threat or use of force that existed at a particular point in time so that the assessment of the accused's action can be properly aligned to their stated purpose. Clarity of purpose is not meant to categorize the accused's conduct in discrete silos, but instead appreciate the full context of a confrontation, how it evolved and the accused's role, if any, in bringing that evolution about. [24]

[88] I have outlined above many portions of the accused’s testimony which demonstrate that she is not a credible witness. In fact, I found most of her evidence to be completely unworthy of belief. A further example of this is her testimony regarding the reason she took photographs of bruises she says she sustained in the incident. The accused claimed that, although she did not contact police after being attacked by a complete stranger, she took photographs of her injuries as evidence of self-defence because she knew she might be charged with assault in the future. Notwithstanding, she continued to maintain that she had no idea that Mr. Burai was an employee of the store and had no fear that she would be charged with theft. I find that the accused’s evidence in this area, like much of her testimony, was implausible and contrived.

[89] I find that the accused struck Mr. Burai to avoid being apprehended for theft and because he was impeding her attempt to flee with the stolen merchandise. The accused was upset and using profanity because she was angry that Mr. Burai had detected the theft and was trying to prevent her from escaping. Her motive was clearly to resist Mr. Burai’s attempt to prevent her from leaving with the stolen items. Striking Mr. Burai in the head and face multiple times was not an act of defence or protection. I do not believe the accused’s evidence that she acted in self-defence because Mr. Burai was hurting her by grabbing her arm and because she was scared, nor does her testimony leave me in a state of reasonable doubt. The Crown has proven beyond a reasonable doubt that the second element of self-defence in s. 34(1)(b) is not present in this case. On this basis alone, the accused’s defence of self-defence fails.

Section 34(1)(c): The “Response”

[90] The final element of self-defence in s. 34(1)(c) looks at the accused’s response to the use or threat of force and requires that "the act committed [be] reasonable in the circumstances". [25] This inquiry “operates to ensure that the law of self-defence conforms to community norms of conduct”. [26] The law of self-defence is grounded “in the conduct expected of a reasonable person in the circumstances”. [27] This ensures that “an appropriate balance is achieved between respecting the security of the person who acts and security of the person acted upon”. [28]

[91] In determining whether an act of self-defence was reasonable in the circumstances, s. 34(2) mandates a consideration of “the relevant circumstances of the person, the other parties and the act”. As Martin J. stated in Khill, “[t]his standard both casts a wide net of inquiry covering how the act happened and what role each person played and modifies the objective standard to take into account certain characteristics of the accused”. [29] It also takes into account “certain experiences of the accused”. [30]

[92] However, Martin J. cautioned that, “the trier of fact should not be invited to simply slip into the mind of the accused”. [31] Section 34(1)(c) is “primarily concerned with the reasonableness of the accused's actions, not their mental state”. [32] The Court made it clear that the focus when considering this final element of self-defence “must remain on what a reasonable person would have done in comparable circumstances and not what a particular accused thought at the time”. [33]

[93] The trier of fact shall consider all of the enumerated factors set out in s. 34(2) that are relevant in the circumstances of the case. [34] The Supreme Court of Canada explained that “[t]he question is not the reasonableness of each factor individually, but the relevance of each factor to the ultimate question of the reasonableness of the act”. [35]

[94] The following is an assessment of the relevant factors in s. 34(2):

(1) The nature of the force used by Mr. Burai – holding on to the accused’s purse – was minimal: s. 34(2)(a);

(2) Mr. Burai placed his hand on the accused’s purse inside the store, identified himself as Walmart security and requested that the accused return the stolen merchandise. The other means available to the accused to respond to the minimal force used by Mr. Burai were to acknowledge that she had stolen merchandise and to comply with his request to return the stolen merchandise that was inside her purse: s. 34(2)(b);

(3) The accused played a significant role in the incident by stealing items inside the store and refusing to return them when Mr. Burai asked her to do so. She continued to physically struggle with Mr. Burai after he made it clear that he wanted her to return the stolen items. Contrary to the accused’s assertion that Mr. Burai dragged her around the parking lot, the video evidence and the evidence of Mr. Burai and Mr. Shipley establishes that it was the accused who was the aggressor and caused the incident to escalate to the point where she struck Mr. Burai: s. 34(2)(c);

(4) I accept Mr. Burai’s evidence that, while the accused was striking him, she told him that she had pepper spray and a knife and was going to stab him: s. 34(2)(d);

(5) The size, age, gender and physical capabilities of Mr. Burai and the accused is not a factor that is particularly relevant in this case. As stated, Mr. Burai’s use of force was minimal and limited to holding on to the accused’s purse. He did not use his size, gender or physical capabilities to exert significant force on the accused. Instead, the video shows that the accused was physically capable of dragging and pulling Mr. Burai around in a circle as he continued to hold on to the purse: s. 34(2)(e);

(6) There was no prior relationship between the parties or prior use or threat of force: s. 34(2)(f). Nor is there evidence of any history of interaction or communication between the parties: s. 34(2)(f.1). The accused testified that she was afraid when Mr. Burai grabbed her because she was the victim of a lot of domestic abuse from men. She said that a couple of months prior to this incident, she had been hospitalized due to a domestic assault that caused her to suffer a broken nose. First, there is no suggestion that Mr. Burai was involved in any prior violent incident with the accused. Furthermore, I have found the accused to be a witness who lacks credibility. I reject her evidence that Mr. Burai grabbed her arm and was hurting her and scaring her. If the accused has been the victim of domestic violence at the hands of other men in the past, I find that it played no role in her conduct during the incident with Mr. Burai;

(7) Mr. Burai testified that the accused punched him in the head and face numerous times with a closed fist. The accused admitted that she struck Mr. Burai in the head and ear area several times with a closed fist. The nature of the force used by the accused was grossly disproportionate to the minimal force Mr. Burai used in holding on to the accused’s purse: s. 34(2)(g);

(8) The final factor requires a consideration of whether the act committed by the accused was in response to a use or threat of force that the accused knew was lawful: s. 34(2)(h). I have found that s. 27 of the Criminal Code authorized Mr. Burai to use the force he did to prevent the commission of the theft offence. I have also found as a fact that the accused knew that Mr. Burai was using force in the execution of his duties as a Walmart employee, seeking to prevent the commission of the theft. Even if I am in error in finding that s. 27 authorized Mr. Burai to hold on to the accused’s purse, the s. 34(2)(h) factor would not be determinative of the “global, holistic exercise” [36] of determining whether the response of the accused to Mr. Burai’s use of force was reasonable. My findings in relation to the other factors would nonetheless lead me to conclude that the accused’s response to Mr. Burai holding on to her purse was not reasonable in the circumstances.

[95] Based on my assessment of the factors set out in s. 34(2), I find that the Crown has proven beyond a reasonable doubt that the third element of self-defence in s. 34(1)(c) is not present in this case. The accused’s act of striking Mr. Burai several times in the head and face with a closed fist was not reasonable in the circumstances.

Findings of Guilt for Assault and Utter Threat to Cause Death

[96] The Crown has proven beyond a reasonable doubt that the accused did not act in self-defence. I accept Mr. Burai’s evidence that the accused punched him in the head and face numerous times with a closed fist. The accused too acknowledged that she struck Mr. Burai in the head and ear area several times with a closed fist. The accused is found guilty of assault.

[97] I accept Mr. Burai’s evidence that, while the accused was striking him, she told him that she had pepper spray and a knife and stated, “I have a knife, I’m going to stab you with it”. The accused denied that she threatened to stab Mr. Burai.

[98] For the reasons set out in this judgment, I found Mr. Burai to be a credible witness who gave reliable evidence. On the other hand, I found that the accused lacked credibility and gave unreliable evidence. I reject the accused’s denial regarding the threat made to Mr. Burai. Furthermore, the accused’s evidence, when assessed in conjunction with the other evidence in the case, does not leave me in a state of reasonable doubt regarding the utter threat charge. On the basis of Mr. Burai’s evidence, which I accept, I am satisfied beyond a reasonable doubt that the accused is guilty of the utter threat to cause death charge.

Conclusion

[99] I find the accused, Jessica Tadam, guilty of assault and utter threat to cause death.

Released: March 13, 2023 Signed: Justice J.P.P. Fiorucci

[1] On January 13, 2023, I found Ms. Tadam guilty of assault and uttering a threat to cause death. I advised the parties that written reasons would follow. These are my written reasons.

[2] R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.).

[3] R. v. H.(S.M.), 2011 ONCA 215.

[4] The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at pg. 47.

[5] R. v. Khill, 2021 SCC 37, [2021] S.C.J. No. 37 (S.C.C.).

[6] Ibid, at para.184; R. v. L.B., 2011 ONCA 153, at para. 125.

[7] R. v. Khill, supra, at para. 185; R. v. Harris, 2014 ONCJ 401, [2014] O.J. No. 3983, at para. 57; R. v. Peterson, 2017 ONSC 7008, [2017] O.J. No. 6813 (Ont. S.C.J.), at para. 35.

[8] R. v. Reid (2003), 65 O.R. (3d) 723, [2003] O.J. No. 2822 (Ont. C.A.).

[9] R. v. Reid, supra, at para. 72. In R. v. Josipovic, 2019 ONCA 633, the Ontario Court of Appeal reiterated that this modified W.(D.) instruction is appropriate in self-defence cases.

[10] R. v. S.(J.H.), 2008 SCC 30, at para. 13.

[11] Section 34(3) of the Criminal Code.

[12] R. v. T.A.S., 2016 SKPC 173, at paras. 39 and 40.

[13] Ibid, at paras. 39 and 40.

[14] R. v. Osolin, [1993] S.C.J. No. 135 (S.C.C.), at para. 198.

[15] R. v. Morris (1983), 7 C.C.C. (3d) 97 (S.C.C.); R. v. G.(S.G.) (1997), 116 C.C.C. (3d) 193 (S.C.C.), at p. 217.

[16] R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at p. 444, leave to appeal refused [1974] S.C.R. viii.

[17] The video entitled “HBA PTZ” depicts the accused and her female friend each pushing a shopping cart. The two carts both contain many items. At 21:47:01.97, the accused’s female friend opens the large purse the accused has on her left shoulder and places items inside it. The accused then turns back to her friend and smiles, seemingly acknowledging that her friend has put items in her purse. The video entitled “TOYS 2” shows the accused and her friend with their carts. At 21:54:13.96, the accused picks up what appears to be a towel from a rack and turns down the next aisle. At 21:54:31.44, after looking around, the accused opens her purse, that is still on her left shoulder, and appears to reach into it to put something inside. She then discards another item that was in her cart.

[18] R. v. Vidovic, 2013 ABPC 310.

[19] R. v. Hebert, [1996] 2 S.C.R. 272 (S.C.C.), at para. 10.

[20] R. v. Vidovic, 2013 ABPC 310, supra.

[21] Ibid, at paras. 196-197.

[22] R. v. Khill, supra, at para. 59.

[23] Ibid, at para. 59.

[24] Ibid, at para. 61.

[25] Ibid, at para. 62.

[26] Ibid, at para. 62.

[27] Ibid, at para. 62.

[28] Ibid, at para. 62.

[29] Ibid, at para. 64.

[30] Ibid, at para. 64.

[31] Ibid, at para. 65.

[32] Ibid, at para. 66.

[33] Ibid, at para. 65.

[34] Ibid, at para. 68.

[35] Ibid, at para. 69.

[36] Ibid, at para. 69.