Court File and Parties
COURT FILE NO.: CR-14-1488 DATE: May 2, 2016
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Lauren Rock for Her Majesty the Queen
- and -
MELISSA LEE Douglas Baum, for the Accused Accused
HEARD: March 29, 30, 31 and April 1, 2016
REASON FOR DECISION
James, J.
[1] Melissa Lee is charged with three offences in relation to Yale Pan consisting of aggravated assault, choking with intent and unlawful confinement.
[2] The complainant, Yale Pan, is currently 44 years of age. He was raised in Pembroke, Ontario but left the area for an extended period of time while he attended university and pursued career interests. He has a law degree, a Masters of Business Administration and a science degree as a Pharmacist. He returned to the Pembroke area in 2009. He works as a pharmacist at a local pharmacy. He is single. His mother continues to live in Pembroke. He has an uncle who lives in Pembroke as well who is a retired medical doctor.
[3] The accused, Melissa Lee, is a registered practical nurse. She worked at a local seniors’ facility. She has a daughter who is now about nine years old. Mr. Pan and Ms. Lee first met when Ms. Lee was a customer of the pharmacy where Mr. Pan worked. He occasionally filled prescriptions for either Ms. Lee or her daughter.
[4] They started dating in late 2011. When the relationship became more serious Mr. Pan arranged for Ms. Lee’s prescriptions to be transferred to another pharmacy.
[5] During the summer of 2012, Mr. Pan and Ms. Lee discussed possibilities for a longer term relationship. At the time Ms. Lee resided in military housing in Petawawa. In July 2013 Ms. Lee moved to a rental property in Pembroke near Mr. Pan’s family home.
[6] Mr. Pan’s work routine consisted of working several double shifts in a row so that this would create longer blocks of time off. Typically he worked Friday, Saturday and Sunday from store opening until midnight. On these days his practice was to sleep at his mother’s house. When he had time off, he often stayed with Ms. Lee.
[7] They decided to purchase a house together at 71 Forest Park Drive. Mr. Pan agreed to pay most of the costs of acquisition. He contributed $18,000 towards the down payment and Ms. Lee contributed $2,000. The house purchase closed in late May 2014. When school ended for the summer, Ms. Lee and her daughter moved to the house on Forest Park Drive. Mr. Pan paid the mortgage, insurance and taxes and Ms. Lee paid the heating and electrical bills. While Mr. Pan moved most of his possessions to the Forest Park Drive residence, he maintained the previous arrangement whereby he slept at his mother’s house on days when he would leave early and return late due to his extended work shifts.
[8] Mr. Pan described their relationship as good but like all relationships, it had ups and downs. Sometimes they argued but their arguments never involved physical contact.
[9] There was an incident in July 2014 during the World Cup Soccer Series. He said he returned to the Forest Park Drive house at around midnight after watching soccer with a friend. When he entered the house Ms. Lee met him at the front door and hit him several times. He doesn’t recall if she said anything but he remembers being struck seven, eight or nine times. He defended himself by covering up as best he could. He never struck back. He went into their master bedroom which was located in the basement. Ms. Lee followed him there whereupon Mr. Pan went back upstairs to the front door. Ms. Lee continued to follow him. She stood between him and the door. She struck him with her fists and kicked him. Mr. Pan said that he didn’t want to fight back when he was being struck for two reasons. He didn’t want to strike a woman and he knew that if he did strike Ms. Lee then he would be the one on trial.
[10] Mr. Pan exited the house through the rear patio door. He walked to his car but as he did so Ms. Lee exited the house and stood in front of his car. This prompted Mr. Pan to leave in a different direction which took him through a neighbour’s yard and onto Forest Park Drive. He didn’t have his car keys with him but he did have his cell phone. He called his mother and asked her to arrange for his uncle to pick him up. He walked towards the highway. As he did so he recognized Ms. Lee approaching him in her black Ford Escape. She drove towards him. He was concerned that she might try to hit him with the car and he jumped into an adjacent field and ran to the middle of it. Ms. Lee stopped the car. She said he should come home. He refused and she drove away. He left the field and walked towards town. A few minutes later he saw his uncle approaching and his uncle drove Mr. Pan to his mother’s house. His uncle said his face was red and suggested he should go to the hospital. Mr. Pan said he didn’t want to go to the hospital.
[11] He said that Ms. Lee had a temper that could be terrifying at times. He said that she lost her temper frequently. Usually her angry outbursts consisted of yelling or screaming but on that occasion her temper had escalated into physical violence.
[12] Mr. Pan described their comparative sizes. He is about 5 feet, 8 inches tall and weighed about 135 pounds at the time of this incident. He said that Ms. Lee is 5 feet, 2 inches in height. He doesn’t know her weight.
[13] After that evening Mr. Pan did not contact Ms. Lee immediately and his car remained parked at Forest Park Drive until he picked it up sometime later. Ms. Lee sent Mr. Pan a text message saying that their relationship was over and then five or six days later she sent him another text message saying that she wanted to talk things over. Mr. Pan agreed to a meeting at the house. They reconciled but Mr. Pan said that things never really went back to the way they were before the altercation. He said that they continued to argue from time to time. He acknowledged that he was angry at Ms. Lee sometimes as well. He said that sometimes he yelled at her but he took care to avoid an escalation in their disputes and he would leave, usually returning to his mother’s house, until things cooled down.
[14] Mr. Pan testified that he was aware that Ms. Lee took medication to control her mood swings. He said that he observed significant mood changes from time to time. He also acknowledged that Ms. Lee reported significant pain from time to time and he would sometimes share his medications with her including muscle relaxants, anti-inflammatory drugs and narcotics to help her deal with occasional pain.
[15] In December 2014 Ms. Lee’s brother, Brian Travis Hibbs, visited Ms. Lee from Cape Breton. He was hopeful that he could obtain an apprenticeship to further his interest in a career as a heavy equipment mechanic. Mr. Pan said he was in favour of providing Mr. Hibbs with a place to stay while he investigated work and training opportunities.
[16] On December 28, 2014 an incident took place at the residence on Forest Park Drive. Earlier that day Mr. Hibbs, Ms. Lee and Mr. Pan drove to Carleton Place to deliver Ms. Lee’s daughter to the exchange location so her father could pick her up and take her for Christmas access visit to Kingston. While in Carleton Place they bought some paint and were planning to do some painting in the basement when they returned home.
[17] Upon returning to Pembroke they began painting in the basement. They ordered pizza for dinner and decided to watch a movie called Gone Girl which Mr. Pan described as a psychological thriller that involved an unfaithful husband and his wife’s plans for revenge.
[18] Mr. Hibbs went to bed before the movie was over. At the end of the movie Mr. Pan made some derogatory comments about the wife’s character in the movie. Mr. Pan testified that on previous occasions Ms. Lee had accused him of having an affair with someone at work and this had been a source of tension between them. In response to Mr. Pan’s remarks about the female character in the movie, he said Ms. Lee responded by saying words to the effect that “Well you’re just like that piece of shit in the movie”. He said that Ms. Lee wanted to revisit the subject of his alleged infidelity. She seemed more belligerent than usual. She said that someday Mr. Pan was going to come back to the house and find her in bed with another man. She told him to get out of the house. He thought that it was a good idea to leave and as he walked to the front door Ms. Lee followed him. She grabbed his T-shirt and hit him. She pulled him by his T-shirt back into the living room and pushed him on the couch. She straddled him and continued to hit him. She hit him with both her right and left fists. He told her to stop. Ms. Lee did not respond. Mr. Pan said that she had a look of rage on her face as she struck him with numerous blows. He raised his arms to try and protect himself. While his T-shirt had been torn, the collar portion of it remained intact. Ms. Lee grabbed the collar area of his shirt and tightened it around his neck. He said she was trying to strangle him with the remains of his T-shirt. He thought that if he called out to Mr. Hibbs, Mr. Hibbs’s presence might help to defuse the situation.
[19] A moment later Hibbs came out of the bedroom and yelled something like, “I’m trying to sleep, what the hell do you want.” Mr. Pan said it was immediately apparent that Mr. Hibb’s presence was not going to assist or defuse the situation. Ms. Lee was still on top of him as Mr. Hibbs approached and he struck Mr. Pan on his left temple with his fist. Ms. Lee had pinned his arms back by holding his biceps. He was lying on his back on the couch. His head, neck and torso were exposed.
[20] After Mr. Hibbs’s initial blow Mr. Pan said things went black for a moment. He said that Hibbs was in a rage, and he yelled words to the effect, “You stupid bastard, don’t you know we are family? My mother’s dead, my uncle’s dead, someone is going to die tonight.” Then Mr. Hibbs struck him again. Mr. Hibbs said, “I’m going to drag you into the backyard, kill you and bury you” whereupon Mr. Hibbs struck him for the third time. Ms. Lee was still on top of him. Mr. Hibbs struck him with a fourth blow on the top of his head then pulled Mr. Pan, with Ms. Lee sitting on top of him, off the couch. They landed on the floor. Ms. Lee told Mr. Hibbs to go for a walk and he went outside for a cigarette. Mr. Pan could hear him yelling outside.
[21] At this point Mr. Pan was on the floor, was about two feet away from where Ms. Lee sat on the side of the couch. They said nothing for about thirty seconds. He asked Ms. Lee to get him a drink of water. She returned with a glass of water and threw it at him. A moment later Ms. Lee approached him as he was laying on the floor and grabbed him by the hair. She said, “Now you know the pain you’ve made me feel.” She wanted him to admit to her that he had been unfaithful. Mr. Pan said that he would not acknowledge the suggestion that he had been cheating. Ms. Lee banged his head on the floor while holding a handful of his hair. He said that she did this several times. He noticed his left baby finger was hurt. He couldn’t move it. He thought it was either broken or dislocated. Ms. Lee offered to help him with his finger. He said no. After a few minutes he crawled to another location on the floor then got in the loveseat that was in the living room. He felt numbness in his back. Ms. Lee asked him if he wanted her to drive him to the hospital. He said yes. Ms. Lee reconsidered this offer and said that she wouldn’t drive him to the hospital but said that she would drive him to his mother’s house instead. He said he would rather stay at the house than go to his mother’s place. They sat in silence again. Then Ms. Lee asked him where he hurt. He said the worst pain was in his leg and back. He thinks his leg was injured when Mr. Hibbs pulled the two of them off the couch. Ms. Lee got him some medication and he took the pills. Sometime later she asked him if he wanted to go to bed. He said yes. She helped him up. He had a sciatic type of pain in his leg. As she helped him to the stairs leading to the basement where the master bedroom was located, he fell head first at the top of the stairs. He said that at the time he thought that she had pushed him but in court he said that he was having trouble with his leg and he now thinks it would be inconsistent for her to offer to help him then push him down the stairs. At trial he did not allege that he was pushed by Ms. Lee. She followed him down the stairs and helped him get up. When Ms. Lee testified, she said she fell down the stairs too in an unsuccessful attempt to grab him as he started to fall.
[22] Mr. Pan took a shower and during the course of the shower he realized that a large quantity of hair from his head was coming off in his hands. As they were getting ready for bed Mr. Pan thought of Mr. Hibbs and his threat. He thought of getting a couple of knives from the kitchen to protect himself. Ms. Lee said that would be a bad idea and he reconsidered and decided not to arm himself. Mr. Pan said that he did not sleep much that night. He was suffering from pain in his face, back and hand. He got up at around 7 a.m. Ms. Lee got up at the same time. She tried to give him a hug. He wanted to go to the hospital. She said “if you leave don’t bother coming back”. He said, “don’t worry, I won’t”. He left the house and drove home. His mother immediately observed the injuries to his face. He took some pictures of his face while at his home. His mother called his uncle who came to the house and insisted that Mr. Pan go to the hospital.
[23] Mr. Pan forwarded some pictures he had taken of his injuries to Ms. Lee with a commentary to the effect of be proud of what you have done. He said she responded by telling him to stop sending messages, that she was going to block him and that he should never contact her again. Mr. Pan’s uncle advised the police of what had occurred and the police attended at the hospital to interview Mr. Pan.
[24] In cross-examination defence counsel suggested to Mr. Pan that he sometimes took medication for recreational purposes which Mr. Pan denied. Defence counsel suggested that Mr. Pan was the aggressor that evening; that he had taken pills and was high at the time that he pushed Ms. Lee on the couch. Mr. Pan disagreed with each of these suggestions. He also denied being abusive towards Ms. Lee during the course of the relationship. He acknowledged they argued sometimes but denied that he was physically abusive or that he tried to provoke her.
[25] Mr. Pan admitted that he followed an unhealthy, even destructive lifestyle in his early 30’s but maintained that he had left that lifestyle behind. He denied denigrating Ms. Lee by making derogatory racial references about her heritage. He also denied the suggestion that all his injuries were caused by Mr. Hibbs and his fall down the stairs. He said he considered calling 9-1-1 that evening but he thought that this might lead to more beatings.
[26] Crown counsel called evidence from Cynthia Stafford, a nurse with the Regional Assault Care Program who examined Mr. Pan at the hospital. Ms. Stafford took a series of pictures of Mr. Pan’s injuries and recorded them on a chart that contained sketches of various profiles of the human body. Each injury was described in terms of pain, location, unique features, color, kind of injury and the size. She noted the presence of petechiae which refers to small, broken blood vessels that form a dotted pattern. Petechiae is frequently associated with compression of larger blood vessels in the neck and is consistent with strangulation. Mr. Pan had a large bruise on his left upper arm in the area of his bicep. It was about 5 centimetres by 4.5 centimetres and was purple, brown and red in color. Mr. Pan’s scalp was red and tender. She also noted that Mr. Pan had a significant bruise on the fifth digit of his left hand about 3 centimetres by 1.5 centimetres that was blue and purple in color. Her notes record that Mr. Pan experienced the most pain from his bruised finger and the top of his head and scalp.
[27] In cross-examination Ms. Stafford agreed that petechiae can be present in the eyes but it is also common petechiae behind the ears, roof of mouth and the eyelids. She agreed the red dots could relate to blood pressure or other causes distinct from strangulation. She also agreed that there were no injuries on the front of Mr. Pan’s throat that were consistent with a ligature or compression.
[28] Ms. Lee’s brother was called as a witness by the prosecution. Mr. Hibbs testified that he sometimes observed Mr. Pan speaking harshly to Ms. Lee’s daughter. As an example, he said that earlier during the day of the incident when she spilled a drink in the car and Mr. Pan freaked out, to use his expression, and that Mr. Hibbs had told him to back off and settle down. He said he got along with Mr. Pan but found him rude and outspoken at times.
[29] In describing his involvement in the incident in question, Mr. Hibbs said that he was awoken from his sleep in a bedroom on the main floor of the house by Mr. Pan calling for him. He said he recalled Mr. Pan saying “Come kill me hillbilly” and when he entered the living room he observed Ms. Lee and Mr. Pan fighting. He said that it looked to him like Mr. Pan was trying to kill Ms. Lee. They were on the couch together. Mr. Pan was trying to choke Ms. Lee. He grabbed Mr. Pan by the shirt. Ms. Lee was trying to hold Mr. Pan’s arms away from her. He said he went into panic mode. His first thought was to protect his sister. He tried to pull him away from Ms. Lee by the scruff of his neck. He said that Mr. Pan asked him why he was grabbing him. He said Mr. Pan called him a baby gorilla. He struck Mr. Pan on the side of his face with his fist and knocked him out. He thinks he only hit him once. Mr. Hibbs said that Mr. Pan rolled off the couch with his face downward after Mr. Hibbs knocked him out and he hit his head on the coffee table as he fell. He said his sister told him to go outside for a smoke. When he came back into the house, everything was quiet and he went back to bed. He said he did not see either Ms. Lee or Mr. Pan when he re-entered the house.
[30] Mr. Hibbs said that he heard Mr. Pan leaving in the morning. Mr. Hibbs looked out his bedroom window as Mr. Pan left the house and entered his car. He said that Mr. Pan’s face was all marked up. Later that morning he told his sister that he wanted to return to Cape Breton and his sister bought him a plane ticket to fly home. They were arrested while enroute from Pembroke to the Ottawa airport.
[31] Crown counsel confronted Mr. Hibbs with some significant inconsistencies between his statement to the police given the day after the incident and his evidence at trial. Mr. Hibbs’s statement to the police did not present Mr. Pan as the aggressor in the confrontation. He also said that when he came into the living room, Ms. Lee was on top of Mr. Pan on the couch but at trial he said they were seated side by side. There was also evidence that Mr. Hibbs sent numerous text messages to his friends in Cape Breton that evening after the incident. One of his texts corroborated his trial evidence that he thought that Mr. Pan had called out to Mr. Hibbs, asking him to kill him.
[32] There was also evidence that Mr. Hibbs had experienced some developmental delays during his childhood although he said he was able to read a transcript of his statement to the police when it was presented to him. He also testified that he has a serious vision problem with one eye.
[33] When confronted with the inconsistencies between his statement to the police and the version of events he described in court, Mr. Hibbs said that he was scared of the police and was afraid they would beat him up if he didn’t give them a statement. He also said that he had requested his eye medication and the police had withheld it until after he completed his statement. He said that when he doesn’t get his eye medication he gets fidgety and shaky. He said the lack of medication also affected his thought processes. Mr. Hibbs said that he told the police a version of events that had never really happened. When asked how he knew what the police wanted to hear, Mr. Hibbs was unable to provide a coherent answer. He did acknowledge that the police did not, in his words, “Put the idea in his head that he needed to cooperate”. He said it was something that came out of his own head and his own fear.
[34] Ms. Lee presented evidence as well. Originally from Nova Scotia, she joined the Canadian Forces in about 2005 and served as a medic for several years. After leaving the Armed Forces she continued to work in a military capacity as a civilian. In September 2008 she qualified as a registered practical nurse. In 2011 she commenced her employment at a seniors residential facility called Marianhill in Pembroke.
[35] She said that she suffers from a neurological disease known as Transverse Myelitis. This condition has caused her left side to be weaker than her right. She found that she had difficulty keeping up with the physical demands of day shifts at Marianhill and switched to night shifts because it was less physically demanding work. She had a relapse of myelitis in 2013 at which time she learned that she had a heart problem including a heard murmur and an irregular heartbeat. In 2014 she was taken from her workplace to a local hospital as a result of a flare up of her condition which left her with more weakness than before. When her shift rotation was changed in April 2015 she found it difficult to maintain her employment at Marianhill and she has since resigned as a nurse. Currently Ms. Lee is receiving Ontario Disability Support payments. She said in 2014 she was working online to qualify as a registered nurse. She became concerned that her myelitis might lead to paralysis and she switched to a Bachelor of Health Administration program. She is about partway through that course of study at this time.
[36] Ms. Lee produced a letter from her family doctor dated February 26, 2015. He confirmed her diagnosis as transverse myelitis and said she suffered from chronic symptoms that include left side weakness, numbness and chronic pain. At that time the doctor noted that Ms. Lee needed time to recover from “repeated walking” and the time required to rest was longer after climbing stairs. She needed assistance lifting more than 7kg from the floor to her waist and assistance to lift more than 2 kg from her waist to her shoulders. She had some limited ability to grasp with her left hand.
[37] Ms. Lee indicated that she began dating Mr. Pan in the fall of 2011 although they never did fully cohabitated together. During the first year the relationship was fairly casual. There was an incident in July 2013 where he arrived at her home quite intoxicated having driven there. She threatened to tell his boss that he was abusing medication and he pushed her into the wall and said that if she did that he would kill her.
[38] Ms. Lee recounted her version of the sequence of events on the day of the incident. She recalled that they had returned home from delivering her daughter for an access visit. They did some painting in the basement then watched a movie. Mr. Hibbs went to bed before the movie was over. When the movie was finished, she said it wasn’t really late and she suggested that they should get more painting done. Mr. Pan didn’t want to paint and this led to an argument regarding house responsibilities.
[39] Ms. Lee was not happy with the living arrangements, especially with Mr. Pan spending time at his mother’s house as well as at their shared residence on Forest Park Drive. She couldn’t understand why he wouldn’t bring his mom to live at Forest Park Drive. This left her with a lot of the responsibilities in terms of house maintenance and when she raised complaints, Mr. Pan would get very angry. Often he would yell in her face in an effort to intimidate her.
[40] The night of the incident that led to these charges, he was the aggressor. He hit Ms. Lee in the right side of her face. He yelled for Mr. Hibbs to come out of the bedroom. He called Hibbs a hillbilly and he said that Hibbs should hit him, that this was his chance. She said her brother hit Mr. Pan did hit him several times then went outside. When Mr. Hibbs came back into the house after having a smoke he pulled Mr. Pan off the couch and in doing so he dragged Ms. Lee onto the floor as well. She saw that Mr. Pan had trouble getting up. She offered to call an ambulance. He said no that he didn’t want an ambulance and she helped him to the loveseat which was also located in the living room. She offered him some water, he took it and then threw it back at her. He took some pills which she thought were sleeping pills. He said he was going to drive home. She offered to drive. As he went to the top of the stairs leading to their bedroom in the basement he stumbled. She grabbed for him and this is when his shirt ripped. They both fell down the stairs. Once they were both in their bedroom in the basement, after falling down the stairs, Ms. Lee took a shower followed by Mr. Pan. She stayed in the bathroom while he was showering because she was afraid he would fall over or lose his balance from the drugs he had taken.
[41] Mr. Pan then returned to the main floor of the house and came back to the bedroom with four steak knives that he said he was going to tape to his hands in order to defend himself in case Mr. Hibbs came into their bedroom to renew the attack during the night. Ms. Lee talked him out of doing so and put the knives in a drawer in their bedroom.
[42] Mr. Pan left the next morning around 7:30 or 8:00 a.m. When leaving he told Ms. Lee that he wanted her to get her brother out of the house. A short time later that morning Mr. Pan began sending several texts to Ms. Lee. She told him not to communicate with her. She said she had to change her phone number as well as turn his phone off. Apparently she controlled the account for his cell phone. Her brother said he wanted to leave and return to the Maritimes. She was driving him to the airport in Ottawa the day after the incident when they were arrested.
[43] The police took some photos of Ms. Lee following her arrest. In reference to some scratch marks on her hands she said she had three cats and the scratches were from her cats. There was a photograph of an abrasion to her knee that she said occurred as they fell down the stairs. There was also a photo of the side of her face which Ms. Lee said showed a mark from when Mr. Pan had struck her the night before. She said the mark was difficult to see because she had applied make up to it in the morning and it was partly obscured by her hair at the side of her head. There was also a photo of a large diamond ring belonging to Ms. Lee that she was wearing at the time of her arrest, the implication being that the marks on Mr. Pan’s face were not consistent with having been struck by someone who was wearing a ring. I do not recall evidence as to whether or not Ms. Lee was wearing the ring the evening before. She may not have been wearing the ring because of the painting they had done earlier in the day. Ms. Lee denied that she strangled Mr. Pan with his shirt and that she had smashed his head on the floor. She did acknowledge that the police photos taken of the living room of the residence showed a quantity of black hair on the floor that she thought belonged to Mr. Pan. She said that she did not observe Mr. Pan losing consciousness from the blows that were struck by her brother but said that he may have seen stars.
[44] Ms. Lee testified that several months later, in or about June 2015, she asked the police to tell Mr. Pan not to communicate with her but about a week later he arrived at the house to collect some belongings. She said he shouldn’t be there but he took the liberty of walking through the house despite her request that he leave. Sometime later he sent some texts to her suggesting some form of reconciliation. The police photos of Ms. Lee’s hands showed what I observed as bruises but Ms. Lee did not acknowledge that there were bruises on her hands. She said that she saw some cat scratches and red marks.
[45] In cross-examination Ms. Lee reiterated that Mr. Pan had been the aggressor that evening. He grabbed her by the collar of her sweater. She pushed him away. He struck her on the side of her face and broke the skin. She denied that she was on top of him on the couch hitting him and holding his arms down.
[46] Ms. Lee denied pulling Mr. Pan’s hair or banging his head on the floor.
[47] She acknowledged pouring water on Mr. Pan after the struggling on the couch and following the blows that had been administered by Mr. Hibbs. She thought Mr. Pan was being melodramatic by faking unconsciousness and this prompted her to pour water on his head.
[48] I will now deal with the applicable legal principles. Firstly, Ms. Lee is entitled to the presumption of innocence. Ms. Lee does not have to prove anything. The onus of proof of guilt always remains with Crown counsel.
[49] Equally important is the principle of reasonable doubt. Crown counsel has the onus of proving the case against Ms. Lee beyond a reasonable doubt. Proof of guilt beyond a reasonable doubt is a very high standard of proof. It is a more stringent standard than proof on a balance of probabilities. Probable or likely guilt is insufficient to support a conviction. If I was to conclude that Ms. Lee was likely guilty but that guilt had not be proven beyond a reasonable doubt, Ms. Lee would be entitled to be found not guilty of the charges against her. Ms. Lee is entitled to be found not guilty unless and until Crown counsel proves her guilt beyond a reasonable doubt.
[50] The determination of whether crown counsel has proved Ms. Lee’s guilt beyond a reasonable doubt requires that I make factual findings based on conflicting testimony. For example, who was the aggressor that evening? Who struck whom? Did Mr. Pan sustain his injuries from falling down the stairs and the blow or blows struck by Mr. Hibbs? I have to determine what allegations I will accept and what allegations I am not prepared to accept. Fact finding in the face of contradictory evidence involves assessing the credibility of witnesses. Generally speaking, the assessment of credibility involves observing witnesses as they give their evidence, considering conflicting evidence in relation to known facts, determining the presence or absence of inconsistencies and determining the presence or absence of corroborating evidence. This is not a complete list of factors to be taken into account. While engaging in the process of finding facts, I may accept some, none or all of a witness’s testimony.
[51] But determining whether someone is guilty or not guilty involves more than a credibility contest. Guilt cannot be determined by choosing from among competing versions of what happened. Ms. Lee has two very important advantages in this situation. She has the benefit of the presumption of innocence and Crown counsel has the obligation to prove her guilt beyond a reasonable doubt.
[52] If I believe Ms. Lee, she is entitled to be found not guilty. Even if I don’t believe her, disbelief alone is not sufficient to justify a finding of guilt. That’s because even if don’t believe her testimony, I may still have a reasonable doubt as to her guilt, in which case she is also entitled to be found not guilty. Going further, even if I disbelieve Ms. Lee and her testimony does not create a reasonable doubt, I must consider the quality of the evidence against her. Ms. Lee can only lawfully be found guilty if, after having concluded that I don’t believe her evidence, I find that her testimony does not leave me in a state of reasonable doubt and I also find that there is sufficient acceptable evidence to prove her guilt beyond a reasonable doubt.
[53] Having heard and considered all the evidence, I reject Ms. Lee’s version of events as improbable and not credible. To begin with, if Mr. Pan was the aggressor, why is he the only one with the injuries to his face and upper body? The evidence respecting the blows struck by Mr. Hibbs was that he hit the side and top of Mr. Pan’s head, not his face, yet Mr. Pan’s eyes are blackened and bruised.
[54] In my view, most of his injuries to his face, the bruising of his biceps and the injuries to his scalp were caused by Ms. Lee as she sat astride him hitting him with her fists and hands then banging his head on the floor while holding his hair.
[55] Ms. Lee said that during the altercation Mr. Pan struck her hard enough on the side of her face to break the skin and bleed. Ms. Lee pointed to one of the police photographs as disclosing the injury to the side of her head caused by Mr. Pan. She acknowledged that whatever mark there was had been covered in makeup and was obscured by her hair. It appeared to me that no cut or abrasion or bruise was depicted in the photograph, certainly no injury consistent with her evidence of broken skin and a wound that bled.
[56] Photos of the interior of the house depicted a quantity of black hair on the floor of the living room, consistent with Mr. Pan’s evidence.
[57] Ms. Stafford testified to the presence of petechia behind Mr. Pan’s left ear and on his cheek. She said this was consistent with compression of a large blood vessel that occurs when someone is being choked. She acknowledged that there can be other causes but petechia is a common feature of strangulation. Ms. Lee said she pulled on the back of Mr. Pan’s T-shirt in an unsuccessful attempt to keep him from falling down the stairs, and that’s when it ripped, but there are no marks on the front of his throat where presumably the shirt would have tightened against his skin because of the pulling force from behind. Instead, there are abrasions on the right side of his neck. This fact, when taken together with the presence of petechia, is consistent with the evidence of Mr. Pan that Ms. Lee used the torn collar of his shirt to choke him while on top of him on the couch and these factors provide corroboration for his version of events.
[58] The bruising on Mr. Pan’s left biceps is consistent with his evidence that Ms. Lee was on top of him pressing down on his arms. I did not find Mr. Hibb’s evidence exonerating Ms. Lee and suggesting that Mr. Pan was the aggressor very credible. His contention that Mr. Pan asked Mr. Hibbs to hit him was improbable. There were important inconsistencies between what he told the police and his testimony at trial. Despite this, a Crown request to have his police statement accepted as trial evidence was dismissed.
[59] Although Ms. Lee suffers from a chronic illness, there was no evidence that she was incapable of striking the blows that caused Mr. Pan’s injuries.
[60] I will now turn to an assessment of Mr. Pan’s evidence. I found that he gave his evidence in a direct and straight forward manner. His recollections on the essential points were clear and well-articulated. At no time while recounting the events of the evening in question did he seem evasive or hesitant. He did not appear to exaggerate or overstate matters. For example, when recounting how he fell down the basement stairs, he said that he initially thought that Ms. Lee had pushed him but at trial he said he wasn’t sure but didn’t think she had intentionally pushed him down the stairs. He was willing to acknowledge his role and participation in the arguments that arose from time to time before this incident. He acknowledged a lack of good judgment in how he handled the issue of providing his medication to Ms. Lee on occasion. He was not shown to have been inconsistent in his evidence when cross-examined. The physical evidence tended to corroborate his testimony. For example, Ms. Stafford noted the redness and tenderness of Mr. Pan’s scalp which was consistent with the hair pulling and head banging that Mr. Pan described as part of the assault by Ms. Lee. This injury does not seem consistent with a fall down the stairs. The same can be said for the evidence of choking and the presence of a noticeable quantity of black hair on the living room floor.
[61] Having indicated that I do not believe Ms. Lee’s evidence where it conflicts with the evidence of Mr. Pan, neither am I left in a state of reasonable doubt respecting her culpability for injuries suffered by Mr. Pan. I say this because I find Mr. Pan’s evidence believable and trustworthy for the reasons I have indicated. Accepting the evidence of one witness as credible and reliable can be an adequate basis rejecting the competing evidence of an accused person and that is the situation here. Having heard the witnesses and considered the evidence, I am satisfied that Ms. Lee’s guilt has been proved beyond a reasonable doubt. There will be a finding of guilt on count 3.
[62] Regarding count 4, attempting to choke Mr. Pan with intent to enable her to commit an indictable offence, I find that Ms. Lee is not guilty. In my view the choking was incidental to and part of the assault and Crown counsel has not proved beyond a reasonable doubt that the choking was intended to assist Ms. Lee to carry out an indictable offence.
[63] Regarding count 5, unlawful confinement, the evidence falls short of proving this offence. I am not satisfied that Mr. Pan was prevented from leaving the house. His exit from a particular door may have been blocked temporarily, and he may have felt that it was in his best interests in the circumstances not to attempt to leave, but in my view this offence has not been made out and Ms. Lee is entitled to a finding of not guilty on this count.