R. v. Cassan, 2010 MBQB 241 (CanLII). Click here.
R. v. Cassan, 2010 MBQB 241 (CanLII)
TABLE OF CONTENTS
R. v. ERIK RYAN CASSAN
File No. CR 07-01-28036
Page Number
INTRODUCTION 1
LEGAL FRAMEWORK AND THE POSITIONS OF
THE PARTIES 5
Second Degree Murder 5
ISSUES 10
EVIDENCE ADDUCED AT TRIAL 10
Dr. Charles Littman 15
Allison Fogg 16
Lori Buxton 20
Carlie Buxton 21
Katlyn Vanachte 25
Darcy Pachkowski 29
Cody Gross 33
William “Cody” McGimpsey 37
Dionne MacGuire 47
Tylene Zeuch 48
Constable Tyson Langrell 50
Patrol Sgt. Victor Dhillon 52
Constable John Scott Taylor 53
Constable Angela Prefontaine 54
Constable Michael Allen Hornung 56
Erik Cassan (the accused) 58
ANALYSIS 68
I. DID THE ACCUSED CAUSE THE DECEASED’S
DEATH? 68
II. DID THE ACCUSED CAUSE THE DECEASED’S
DEATH UNLAWFULLY? 71
The Unlawful Act: Assault with a Weapon
Did the accused intentionally apply force to the
deceased? 72
Did the accused unlawfully apply force to
the deceased? 73
Did the deceased consent to the force that the
accused applied? 91
Did the accused know that the deceased did
not consent to the force that the accused
applied? 92
Was a weapon involved in the accused’s
assault of the deceased? 93
III. DID THE ACCUSED HAVE THE STATE OF
MIND REQUIRED FOR MURDER? 94
IV. WAS THE ACCUSED PROVOKED? 108
CONCLUSION 113
Date: 20101103
Docket: CR 07-01-28036
(Winnipeg Centre)
Indexed as: R. v. Cassan
Cited as: 2010 MBQB 241
COURT OF QUEEN'S BENCH OF MANITOBA
BETWEEN: | ) | APPEARANCES: |
| ) |
|
| ) | Brian Bell |
| ) | and Sheila Seesahai |
HER MAJESTY THE QUEEN, | ) | for the Crown |
| ) |
|
- and - | ) | Saul Simmonds |
| ) | and Shannon Benevides |
ERIK RYAN CASSAN, | ) | for the Accused |
| ) |
|
Accused. | ) | Judgment delivered: |
| ) | November 3, 2010 |
Corrected Judgment: An erratum was filed on November 8, 2010. The text of the initial judgment is reproduced here with corrections, and the erratum is appended at the end of this Corrected Judgment.
JOYAL, A.C.J.Q.B.
INTRODUCTION
[1] Erik Ryan Cassan (hereinafter the accused) is charged with one count of second degree murder in connection with the death of John Andrew Lane (hereinafter the deceased).
[2] After a several-day trial following the accused’s re-election from trial by judge and jury to trial by judge alone, I reserved my decision promising reasons to follow. What follows are those reasons.
[3] On the evening of March 17, 2007, a group of young female and male friends (previously acquainted at a local high school) met at a Winnipeg bar known as Club 3D. There, they proceeded to spend the next few hours. For most of this group of friends, Club 3D was a typical destination on a Friday or Saturday night. By all accounts, what could normally be an animated and lively place, was on the evening of March 17th, anything but.
[4] Despite the unexciting ambience on the night in question, the above-mentioned group of friends remained more or less together at Club 3D until they left in the early morning hours. At one point during the evening, they were joined by the accused. During his period with that group while at Club 3D, he was described by some of those in a position to notice, as behaving in a manner that was annoying and obnoxious. Some of those who noticed that behaviour attributed it to the accused’s consumption of alcohol. At one point, one member of the group was required to come between one of the bouncers and the accused so as to prevent the accused’s expulsion.
[5] By the time the evening ended at Club 3D, the individual members of the group had consumed various amounts of alcohol which in turn left them to describe their respective levels of sobriety in different ways.
[6] It is not disputed that after leaving Club 3D, members of that group proceeded (in various clusters) to attend the apartment of the deceased. Those arrangements had been made by some in the group, when they spoke to the deceased at the end of the evening outside of Club 3D. The evidence does not suggest that the deceased was earlier (either alone or with the group) in Club 3D.
[7] Before arriving at the deceased’s apartment, members of the group stopped to purchase some beer. Most of the individual members in the group arrived at the deceased’s apartment (by taxi) just before or just after 2:00 a.m. The accused and a female member of the group earlier described arrived separately, shortly after everyone else.
[8] Not long after the accused’s arrival, the verbal interaction between he and the deceased became tense and somewhat confrontational. While little evidence was adduced respecting the nature of the relationship that existed between the accused and the deceased, it was established that while not friends, they may have been known to each other. Nonetheless, there was insufficient evidence adduced at trial to permit the nature or history of that relationship to be considered in a way so as to have bearing on the determinations I am required to make given the specific issues that have to be addressed.
[9] Although the accused and the deceased were described as being on different sides of the living room of the deceased’s apartment (the accused sitting in a corner and the deceased standing behind a bar), at one point during the verbal interaction between the deceased and the accused, the accused says he saw the deceased flash a knife from behind the bar. The timing, precise gesture and accompanying words respecting the deceased’s handling of this butcher knife were the subject of different testimony by the various eyewitnesses who were, pursuant to their vantage points, in a position to so comment.
[10] The increasingly hostile and angry words exchanged between the accused and the deceased culminated in a physical confrontation in the living room. During the brief physical confrontation in which both the accused and the deceased were seen as participating, the deceased seemed to be getting the better of the accused. Suddenly, during that fight, the deceased fell to the ground, unconscious. The eventual autopsy findings would show that the deceased had been stabbed some 22 times in various parts of his upper body. Found in the living room was what would later be identified by the accused in his own testimony, as a knife that was similar to the knife he used in the course of his work at an auto body shop. That same knife was described by the pathologist in his testimony, as a knife possessing the sort of blade consistent with the type of blade used to inflict the many wounds on the deceased’s body. An eventual DNA analysis of that knife revealed the presence of the deceased’s blood.
[11] After the deceased fell to the floor, the accused attempted to leave the living room. Prior to leaving that area, the accused was hit with a thrown beer bottle and then struck by a stool. In attempting to leave the apartment, the accused was stopped by a couple of the males in the front door area of the deceased’s apartment. There, the accused was badly beaten; that beating included a “foot stomping” to the head. The accused managed to extricate himself from that area, and proceeded, by this time bleeding badly, to leave not only the apartment but the apartment building.
[12] Based on information received, the police later went looking for the accused, first to the Grace Hospital, then to the accused’s home. At the accused’s home, still in the very early hours of the morning in question, officers observed the accused exiting the back door. Upon seeing the police, the accused, who was now in the backyard, proceeded to jump the backyard fence. A foot chase then ensued in the neighbourhood, where finally, the accused was stopped with the assistance of a police dog. Following his arrest, the accused was taken by the police to the hospital for the purpose of attending to his injuries. The accused was then transported to the robbery, homicide offices at the Public Safety Building (PSB) where he remained under arrest on the charge of second degree murder of the deceased.
LEGAL FRAMEWORK AND THE POSITIONS OF THE PARTIES
Second Degree Murder
[13] The formal charge in the indictment reads as follows:
That ERIK RYAN CASSAN on or about the 17th day of March in the year 2007 at the City of WINNIPEG in the Province of Manitoba did unlawfully kill JOHN ANDREW LANE and did thereby commit murder in the second degree contrary to Section 235(1) of the Criminal Code of Canada.
[14] To convict the accused of second degree murder as charged, the Crown must establish beyond a reasonable doubt the essential elements for second degree murder:
1. that the accused caused the deceased’s death;
2. that the accused caused the deceased’s death unlawfully; and
3. that the accused had the state of mind required for murder.
[15] I understand the position of the Crown to be that irrespective of whether the accused and the deceased had been engaged in a consensual fight (precipitated by the deceased’s provocative behaviour), the accused caused the death of the deceased by unlawfully and without justification, assaulting him with a weapon. In other words, the conduct of the accused was clearly outside the scope of any implied consent that may have been present when the fight commenced between the deceased and the accused in the deceased’s living room. Implicit in the Crown’s position is a reliance upon the longstanding and trite proposition that consent is vitiated where one intends to apply hurt or non-trivial bodily harm. The above assumes of course that there was no other lawful justification for the application of force by the accused. In that regard, the Crown takes the position that the evidentiary foundation at trial, provides no basis to argue that any of the self defence provisions possess an air of reality (see R. v. Cinous, 2002 SCC 29 (CanLII), [2002] 2 S.C.R. 3, at para. 2), and even if they do, they have no legitimate application.
[16] The Crown further contends that based on the testimony of the various witnesses at trial, the actions of the accused before and after the stabbing and the sheer number of the stab wounds found on the deceased’s body, the accused had the state of mind required for murder.
[17] The Crown also argues that while it does not concede that the defence of provocation possesses an air of reality such so as to require its consideration, if it is considered, the evidence clearly suggests that the accused was not provoked.
[18] The defence argues that given the evidence adduced at trial, there are a number of defences which possess an air of reality (self defence, intoxication and provocation) which when properly considered, should prevent the court from finding that the Crown has proven beyond a reasonable doubt certain of the essential elements constituting the offence of second degree murder.
[19] While no formal admission has been made by the defence stipulating that it was indeed the accused who caused the deceased’s death by stabbing (defence has chosen to put the Crown to its burden), it is nonetheless the position of the defence that were I to find that the accused did in fact cause the deceased’s death as a result of his assault with a weapon (the stabbing), then that otherwise unlawful act is rendered lawful upon a proper application of the relevant self defence provisions. As will be apparent later in this judgment, pursuant to my duty (see Cinous, supra) to instruct myself on all defences possessing an “air of reality” (even those not raised by the defence), I have considered several of the potentially applicable self defence provisions. Those provisions are set out at ss. 34.(1), (2), 35 and 37 of the Criminal Code of Canada, R.S., 1985, c. C-46 (the Code). Those sections read as follows:
34. Self-defence against unprovoked assault - (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Extent of justification - Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
35. Self-defence in case of aggression - Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
[20] Section 37 reads as follows:
37.(1) Preventing assault - Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Extent of justification - Nothing in this section shall be deemed to justify the willful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
[21] It is also the position of the defence that given the evidence adduced at trial respecting the accused’s level of intoxication, the Crown has failed to establish beyond a reasonable doubt either of the two states of mind required for murder.
[22] Finally, the defence relies upon s. 232 of the Code which sets out the statutory defence of provocation. In that regard, the defence argues that even if this court determines that the accused caused the deceased’s death unlawfully and that he possessed the state of mind required for murder, in the circumstances of the present case, he was “provoked” and on the basis of s. 232 of the Code, what would have been a conviction for murder ought to be reduced to manslaughter. Section 232 of the Code reads as follows:
232. Murder reduced to manslaughter - (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) What is provocation - A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
(3) Questions of fact - For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
…
ISSUES
[23] Given the positions of the parties and the legal framework in which those positions are advanced, the issues requiring my determination reduce to the following:
1. Has the Crown established beyond a reasonable doubt that the accused caused the deceased’s death?
2. Has the Crown established beyond a reasonable doubt that the accused caused the deceased’s death unlawfully?
3. Has the Crown established beyond a reasonable doubt that the accused possessed the requisite state of mind for murder?
4. Has the Crown established beyond a reasonable doubt that the accused was not provoked?
EVIDENCE ADDUCED AT TRIAL
[24] The evidence presented at trial included various exhibits, evidence given viva voce, and certain stipulated agreements.
[25] The exhibits included the following:
• Exhibit 1 - Booklet of 24 Photographs & 2 Drawings
Filed by Crown
• Exhibit 2 - Booklet of Photographs taken at Autopsy
Filed by Crown
• Exhibit 3 - 3 Pieces of identification of Erik Cassan Seized by WPS
Filed by Crown
• Exhibit 4 - Folding Knife Seized by WPS
Filed by Crown
• Exhibit 5 - 4 page Forensic Laboratory Services Report from Jocelyn LeBlonde (sic) (√)
Filed by Crown
• Exhibit 6 - Autopsy Report of death of John Andrew Lane by Dr. Littman
Filed by Crown
• Exhibit 7 - Report prepared by Rachel Booker of RCMP Lab
Filed by Crown with Consent of Defence
• Exhibit 8 - Photos of Accused, Erik Cassan, taken at 4PM, March 17, 2007 in Interview Room by WPS
Filed by Defence
• Exhibit 9 - Curriculum Vitae of Dr. Arthur Kraut, Forensic Alcohol Scientist
Filed by Defence
• Exhibit 10 - Letter from Dr. Arthur Kraut, dated September 7, 2010 re: blood alcohol concentration of Erik Cassan
Filed by Defence
[26] The viva voce evidence at trial included evidence adduced by both Crown and defence. The Crown called evidence from both a number of police witnesses and several civilian witnesses. The defence presented evidence through the accused’s own testimony.
[27] Set out below is a brief review of the especially relevant witnesses’ testimony insofar as that evidence touches upon areas of particular importance for the issues that will require my determination.
[28] Much, although not all of the testimony described below, comes from civilian witnesses who gave their testimony at trial pursuant to their observations of what happened at Club 3D and/or at the deceased’s apartment before, during and after the fight between the accused and the deceased.
[29] One of the challenges in a trial of this sort is the sheer number of civilian witnesses who obviously were not anticipating their involvement as onlookers in such a tragic incident. By necessity - given their respective physical vantage points and their own particular focus and attention at relevant moments - their testimony is sometimes varied and/or more vague as compared with other witnesses who gave evidence on a similar question or detail. Nonetheless, the specific witnesses whose evidence I have reviewed in more detail, all provided testimony which, potentially, is of particular importance in that it bears not only upon the factual foundation the Crown is using to establish each of the essential elements beyond a reasonable doubt, but also, for determinations that I must make concerning the defences of intoxication, self defence and provocation.
[30] Accordingly, the capacity of these witnesses to assist in that regard will be assessed in relation to the degree to which these witnesses were in a position to observe the accused at Club 3D and also, their ability to observe what precisely happened before, during and after the fight at the apartment.
[31] In addition to the differing degrees of contact the civilian witnesses may have had with the accused (at Club 3D) as well as their differing vantage points and levels of attention respecting what they saw or did not see happen before, during and after the fight at the apartment, the civilian witnesses reviewed below need also be assessed mindful of the always pertinent factors that may cause a finder of fact to have concerns about a witness’s reliability (i.e. a witness’s level of sobriety, memory, inconsistency, etc.) and/or credibility (bias, character, interest). As with any trial, I remind myself that as the trier of fact, after those factors have been considered, I may accept some, none or all of the witness’s testimony.
[32] As mentioned, in the present case, it will be noted that there are differences and contradictions as between certain of the civilian witnesses. It will also be noted, that there are inconsistencies between that which any one of the witnesses may have said in direct examination as compared to that which the same witness may have said in cross-examination and/or in a previous police statement. I will obviously consider those differences where they exist as I will also consider any previous inconsistent statements. To the extent that there are differences, I will, as earlier stated, attempt to consider and give weight to that witness or those witnesses best placed physically and observationally to provide the evidence the court requires.
[33] Where no specific comment is made and no particular concerns are raised, it can be assumed that the witness is (subject to his or her relative ability to assist on a given question) otherwise credible and reliable. Insofar as there may be inconsistencies, I will proceed in my findings of fact on the basis that “like differing details”, not every inconsistency will be important. However, I must and will consider the fact, nature and extent of the inconsistencies in determining whether I believe or will rely upon a witness’s testimony. In that regard, I have considered any explanation the witness may have given for any inconsistency and whether when confronted with the inconsistency, the witness candidly and willingly adopted the previous statement. While not always or necessarily suggestive of credibility and reliability, where adoption does take place, the fact in question may become less contentious and the witness may regain or retain some potentially lost credibility and reliability.
[34] Before proceeding with my review of the witnesses, I note that as it relates to a few of the civilian witnesses, general questions were posed by defence counsel in cross-examination suggesting to some of those civilian witnesses that in the months or years since the incident, they (the civilian witnesses) may have had an opportunity to discuss what it was they saw with other of the civilian witnesses who gave evidence at the trial. While no further specific questions were asked about the conversations between those witnesses or what was specifically discussed, and although no direct allegation of collusion was made, it is clear that counsel for the defence seeks to have me consider the fact of those discussions so as to have them impact on the extent to which I can rely on the testimony of some of those civilian witnesses. In other words, I am to consider the evidence that any of the witnesses who shared their versions with each other, may have intentionally or by accident allowed themselves to change or alter their accounts so that their testimony would seem more similar or more convincing.
[35] I accept that to the extent such impugned discussions may have taken place, such discussions can be, in some cases, evidence of collusion. I also acknowledge that even where collusion specifically is not found, any such acknowledged discussions may have impact upon the weight accorded to and the reliability of those witnesses. Nonetheless, in the present case, there is an insufficient basis for me to find anything approaching collusion. Indeed, some of the differences that exist in the testimony of the civilian witnesses, suggests not only the absence of collusion, but an apparent ignorance or disregard of what the other witnesses themselves saw or heard.
[36] In the end, I have considered the impugned discussions as a factor in my assessment of the witnesses’ reliability. Having said that, in the particular circumstances of the present case, given the only general questions posed in that regard on cross-examination, I have found that where any such impugned discussions took place between witnesses, they do not have a determinative impact on those witnesses (or their testimony) who I have found were otherwise credible and reliable.
Dr. Charles Littman
[37] Dr. Littman gave evidence as the pathologist who conducted the autopsy of the accused. His specific findings are contained in the autopsy report marked as Exhibit 6 in the trial.
[38] Dr. Littman testified that the deceased’s cause of death was stab wounds to the chest and abdomen with resulting blood loss. Dr. Littman noted that there were some 22 “sharp force” injuries or wounds found on the body of the deceased. Any of those “sharp force” injuries could have been caused by either of the two knives seized from the deceased’s apartment shortly after the incident. Pictures of those two knives are found in Exhibit 1, photos 12 and 15. Dr. Littman specified that amongst the 22 “sharp force” wounds, some of the injuries could be characterized as slash wounds (for example those wounds to the head and neck).
[39] Dr. Littman further specified that both the deceased’s heart and lung were penetrated by stab wounds. According to Dr. Littman, if the assailant was standing in front of the deceased, on the basis of the wounds examined, it was his opinion that the assailant would have been right handed.
[40] In cross-examination, Dr. Littman conceded that there was no pattern to the stab wounds and that he cannot say that they are inconsistent with the deceased himself lashing out during an altercation.
[41] Dr. Littman also testified in cross-examination (pursuant to his general medical training) that the presence of pain (caused by punches and a resulting broken nose) respecting someone who has already consumed alcohol, could increase that person’s impairment.
Allison Fogg
[42] This witness is currently 21 years of age and was 18 on the night in question. She was a member of the group who came to meet at Club 3D and later attended to the deceased’s apartment where he had his fateful altercation with the accused.
[43] Prior to arriving at Club 3D on the night in question, she went to the residence of Lori and Carlie Buxton. Ms. Fogg testified that she had nothing to drink at that residence or anywhere else prior to arriving at Club 3D.
[44] Ms. Fogg testified that she arrived at Club 3D at 10:00 p.m. where in her words, she proceeded “to have quite a few beers” which she estimated to be approximately 10 in number. She stated that she “was drunk but fine”. Ms. Fogg explained that she was not in a position to say how much alcohol the others in her group consumed.
[45] Ms. Fogg testified that at one point during the evening at Club 3D, they “ran into” the accused who she had perhaps met once before. She believes the accused stayed with her group for approximately two hours during which time she recalls seeing him with a couple of beers in his hand. She cannot remember speaking to the accused while at Club 3D.
[46] It was Ms. Fogg’s evidence that after staying at Club 3D for a few hours, they left (before 2:00 a.m.). She and other members of the group proceeded by cab to buy some beer and then attend the apartment of the deceased. Upon arriving at the apartment, she sat down in the living room area not far from where a portable bar was situated. Ms. Fogg told the court that present at the apartment (a fact never challenged or contradicted by other witnesses) were Lori Buxton, Cody Gross, William “Cody” McGimpsey, Katlyn Vanachte, Darcy Pachkowski and the deceased. The mood at the time of her arrival was described as “good and relaxed”.
[47] Not too long after the arrival of everyone else, the accused arrived with Carlie Buxton with whom he had shared a cab. Carlie had apparently called the apartment a short time earlier advising that she and the accused would be attending.
[48] Although the mood of the group did not change immediately upon the accused and Carlie Buxton’s arrival, the mood did change soon after the accused and the deceased began to argue shortly after his arrival. By this point, the accused was, according to Ms. Fogg, seated on a chair in the living room on the other side of the room from where the deceased was standing behind the bar. The witness testified that the argument seemed to carry on for a while after which they began physically fighting. Ms. Fogg testified that the fight took place on the other side of the room from the bar, closer to the window area of the living room. She was unable to describe how the deceased made his way from the bar to the window area where she observed the fight take place.
[49] During the fight, she saw arms in the air but saw nothing in anyone’s hands. At one point she noticed the accused with a bloody nose but could not describe precisely what happened next. She could only say that at one point she observed that the deceased was on the ground. She believed “he was dead”. She then observed the accused move to the doorway of the apartment.
[50] During her cross-examination, this witness acknowledged that her earlier statement to the police was a good and accurate reflection of what happened on the night in question and in fact, represents a better recollection than that provided in her trial testimony. In that regard, she acknowledges saying in her earlier statement to the police, that the accused was acting, on the night in question, “drunk and stupid”. Despite that acknowledgement, she nuanced that description in her testimony by saying that while he may have been “drunk and stupid”, he “was not out of control and slurring his words”. Still later in her cross-examination, she acknowledged saying in an earlier police statement that “though his speech was clear, I’m pretty sure he was drunk.”
[51] Ms. Fogg further testified in cross-examination that based upon the accused’s behaviour and confrontations at Club 3D, he was exhibiting the behaviour of someone who was drunk. Indeed, Ms. Fogg acknowledged that the accused’s “yappy” manner at the deceased’s apartment was consistent with his earlier behaviour at Club 3D.
[52] Ms. Fogg also testified that at no point in time during any of the accused’s verbal altercations at Club 3D or during her observations of the accused at the deceased’s apartment, did she ever see the accused make a threat with a knife.
[53] This witness further clarified in cross-examination that while the fight between the accused and the deceased was taking place, both were “throwing blows”.
Lori Buxton
[54] This witness testified to arriving at Club 3D with her younger sister Carlie and her friend Allison Fogg. They joined a group of friends.
[55] This witness described that while at Club 3D, the accused joined her group at a table where he remained for a period of time. She observed the accused to be drinking beer but was unable to say how much.
[56] The accused herself estimates that while at Club 3D, she had approximately six beer.
[57] Lori Buxton testified as to how she came with her friends to the deceased’s apartment after they left Club 3D and after they had stopped to purchase some beer. The mood at the deceased’s apartment prior to the arrival of the accused, was calm. People were just sitting around talking.
[58] The accused arrived with Carlie Buxton after everyone else. Carlie Buxton called someone’s cell phone to announce they would be coming up.
[59] This witness was unable to testify as to how much alcohol, if any, the accused had consumed while at the deceased’s residence. She did describe, however, how, shortly after arriving, the accused and the deceased began to argue. During the course of the argument, the deceased asked the accused to leave. This witness heard the deceased say “Get the fuck out of here.” Those words were made while the deceased “gestured with his arms up” for the accused to leave.
[60] The witness next heard the sound of scuffling and people yelling “stop”. Ms. Buxton cannot say who the “aggressor” was but she does recall the deceased moving towards the accused and grabbing him by his hoodie. Although she was not really focused on the fight nor did she see the number of punches thrown, she remembers seeing the accused fall face down to the ground. By the time she tried to attend to the deceased on the ground, she no longer saw the accused.
[61] In cross-examination, Lori Buxton acknowledged not paying close attention to how much everyone was drinking. She also acknowledged that by the time the accused got to the group’s table at Club 3D, it was clear he had been drinking as he was speaking “gibberish”. She also noted that he was “really annoying” and generally “mouthing off” and “pissing people off”. At one point while at Club 3D, this witness testified that the bouncer came over and told the accused that he was “cut off”. At another point, the witness observed that the accused was warned that he might have to leave.
Carlie Buxton
[62] This witness confirmed that she attended Club 3D on the night in question with her sister Lori and Allison Fogg and it was at the Club 3D that they met up with a group of other friends.
[63] This witness recalls consuming in total, approximately four or five beers on the evening and in the early morning in question.
[64] Like other witnesses, Ms. Buxton recalls the accused coming over to their table at Club 3D where she says he consumed approximately two beers. He remained for about an hour or two.
[65] This witness recalls taking a cab with the accused for the purposes of going to the deceased’s apartment. According to the witness, they were obliged to take a separate cab from the others as there was no more room in the other cabs.
[66] After having arrived at the deceased’s apartment, Ms. Buxton describes sitting down on a couch against the wall in the living room area. She describes the mood initially as having been “okay”. Soon, the accused and the deceased started “bickering back and forth”. According to this witness, the deceased was behind the bar and the accused was sitting in a chair across the room (in the living room) by the clock on the wall.
[67] One of the members of the group of friends present, Cody Gross, continued to tell the accused to “get lost”. This witness recalls the accused getting up out of his chair and starting to move to the middle of the living room. The witness described the deceased as having stayed where he was but he continued to tell the accused to “get out of here”. At one point the accused said something about the deceased’s child (who this witness believed to be present in the apartment at the time) that particularly angered the deceased. The accused was, according to this witness, still in the middle of the room when that comment was made. It was at that point that the two started to move towards each other with the deceased now moving away from behind the bar. The witness described herself as being between the two of them but her position could not avert the confrontation as the deceased began punching the accused in the head by reaching around her. In fact, the witness saw the accused get hit in the nose which according to the witness caused immediate bleeding. The witness then observed the accused pull out a knife from his right back pocket. She got out of the way jumping towards the couch. At some point, after this witness turned around, she said the deceased was on the ground.
[68] At no point in time did she see anything in the deceased’s hand.
[69] In her direct examination, this witness indicated that she thought she saw the accused try to fold the knife and put it back into his pocket. She observed him attempt to run for the door but noted that he was stopped by one of the male members of the group in the doorway where another physical altercation began.
[70] The witness proceeded to the doorway area where she walked over to the individuals who were fighting. She noticed lots of blood on the accused’s face and all over his chest and arms. She moved into the hallway where she called the police. She noted that an ambulance arrived at approximately five minutes after her call.
[71] In cross-examination, this witness asserted that respecting the accused’s sobriety, she “wouldn’t say he was drunk, but approaching being drunk”. She also indicated that he was “talking but not always making sense”. Furthermore, his balance seemed “a little off”. When confronted by her previous statements to the police respecting the accused’s level of sobriety, she acknowledges amongst other things, having stated that while at the group’s table, the accused consumed four to five beer and that he was drinking beer, “one after another”. She also acknowledges telling the police that by 1:00 a.m., the accused seemed buzzed. She also recalled in her testimony, that the accused consumed at least one “shot” with her somewhere around 12:30 a.m. She recalls that it was when consuming a “shot” with the accused that he was told that he was “cut off”. She testified that when he was so advised, he did not become violent nor did he pull a knife.
[72] The witness maintained that she observed the accused getting into a car after having left Club 3D. At that time, he was not falling over, he did not have difficulty walking, and was talking perfectly fine. When confronted in cross-examination, she acknowledged that she herself was somewhat impaired.
[73] When cross-examined respecting the events at the deceased’s apartment, she conceded that she did not want to pay attention to the bickering taking place between the accused and the deceased. However, she specifically rejected the suggestion put to her by defence counsel that it was the deceased who pulled the knife, waived it and said “Get the fuck out of here.” Still, the witness conceded that it is possible she did not see or hear everything that occurred. It was during cross-examination that the witness provided slightly different or perhaps more complete detail concerning the position of the deceased and the accused just prior to the physical altercation. It was also during cross-examination that she indicated that it was the deceased who came into the middle of the living room at which time the accused stood up from his chair. She did confirm that up until that point, she saw neither the accused nor the deceased with a knife. When the fight did commence, it continued up against the living room wall where the deceased had the accused backed into a corner. Again, she cannot say how many punches were thrown but she did advise that both the accused and the deceased were each using both hands. Like most other witnesses who observed the fight, she acknowledges that before the deceased fell to the ground, he was “giving it to the accused”.
Katlyn Vanachte
[74] This witness testified that at the time of the incident, she was 17 years of age. She advised that she was part of the group that attended to the Buxton residence prior to proceeding to Club 3D on the night in question.
[75] She advised that she along with Allison Fogg and Lori and Carlie Buxton, arrived at Club 3D around 10:00 or 10:30 p.m. It was while at Club 3D that she met the accused.
[76] Ms. Vanachte testified that while at Club 3D, she had a conversation with the accused. It was her testimony that the accused’s manner of speech was normal, coherent and understandable. In short, he seemed to be making sense. Similarly, his manner of walk was normal. She did indicate, however, that the accused was drinking either Kokanee and/or Budweiser and had consumed from her observation four or five beers and at least one “shot”.
[77] Respecting the sobriety of others in the group, Ms. Vanachte testified that Carlie Buxton was certainly drinking, but was still “good” in terms of her sobriety. Respecting Lori Buxton, Ms. Vanachte advised that she was in a similar position to her sister Lori, drinking but not drunk. According to this witness, Allison Fogg was “not completely drunk but not as sober as the others”.
[78] Ms. Vanachte testified that after leaving Club 3D, everybody went by cab to the residence of the deceased. She specified that Carlie Buxton and the accused arrived approximately 10 minutes after everyone else.
[79] While at the deceased’s apartment, the witness testified that she would have opened a beer and had, perhaps, a couple of sips. While at the apartment, she described for the court that she was seated at a round table close to Cody Gross not far from where the deceased was standing behind the bar.
[80] Also seated in the living room on a nearby couch or futon were Darcy Pachkowski, Allison Fogg and Carlie Buxton.
[81] According to Katlyn Vanachte, after he arrived, the accused immediately began talking to the deceased when he entered the living room. He began by stating: “I know you.” The deceased responded by denying that he (the deceased) knew the accused. The accused then began suggesting that the deceased and his friends had jumped him on an earlier occasion. The accused denied the allegation. The accused insisted angrily that it was the deceased and his friends. According to this witness, the deceased appeared to be simply “brushing it off” as he consistently denied the suggestion.
[82] The witness testified that Carlie Buxton urged the two to “settle down”. The accused appeared to listen as he sat down in a corner across the room from the deceased who was at this time, still behind the bar.
[83] Katlyn Vanachte suggested in her direct examination that the accused remained angry and continued talking in the manner described above. At one point, amidst what this witness suggested was now “yelling”, the deceased said “If you want to fight let’s fight”. At that point the deceased apparently walked over to the accused who was by then standing up. The witness was still seated at the earlier described location “at the round table by the bar”. She saw nothing in either of the hands of the deceased or the accused. Once the two met, both men began throwing punches. This witness specifically described how the deceased was hitting the accused in the nose.
[84] It was this witness’s testimony that the fight lasted between 45 and 60 seconds. She advised the court that at one point, Carlie Buxton, Cody McGimpsey and Allison Fogg had tried to intervene.
[85] When the deceased fell to the floor, he “fell like a tree” with his body completely straight. When the deceased fell, the accused stood still while this witness heard Cody McGimpsey scream “He’s got a knife.” In that regard, the witness describes seeing what she thought was the tip of a three-inch blade in the right hand of the accused’s arm which was at his side.
[86] This witness described how she ran into the washroom to call the police. Shortly thereafter, when she went into the hallway of the apartment building she saw the accused just outside the apartment door. According to this witness, he was walking in a manner that she described as “completely normal”.
[87] During her cross-examination, the accused’s direct examination was significantly contradicted with reference to previous statements given by this witness to the police as well as evidence she gave at the preliminary inquiry.
[88] Many of the above contradictions or inconsistencies reveal that the basis for Katlyn Vanachte’s estimates (respecting what everyone was drinking) was wildly speculative. Respecting her specific assessments of the accused’s sobriety, she was confronted in cross-examination with the fact that at the accused’s preliminary inquiry, she stated “he was pounding them back”.
[89] In cross-examination she clarified that in her view, what precipitated the fight, was the comment made by the accused that “I’m going to come and get your kid.” Despite insisting in her testimony that the deceased moved towards the accused (where the fight occurred) in a “calm fashion”, she was confronted with her earlier testimony at the preliminary inquiry where she stated the deceased had “rushed across the room at the accused”.
[90] During her cross-examination, this witness maintained that despite the fact that she was sitting not far from the bar at a table close to Cody Gross, at no point did she ever observe the deceased - even temporarily - pull a knife while at the bar. Neither did this witness hear the deceased make any comments with respect to his possession of a knife.
[91] When I examine the totality of Katlyn Vanachte’s testimony and when I look more closely at her testimony on cross-examination, the number, the extent and the nature of the contradictions and inconsistencies - coupled with her alternately defiant and dismissive attitude while on the witness stand - causes me to have doubts about both her credibility and reliability. As a result, I will accord her evidence little, if any weight.
Darcy Pachkowski
[92] This witness was 21 years of age on the night in question. He testified as to how he arrived at Club 3D with his friends Patrick McGimpsey and Cody Gross. There they met up with Carlie and Lori Buxton, Allison Fogg, Katlyn Vanachte and eventually, the accused.
[93] This witness testified to having had approximately three beer while at Club 3D. He indicated that he left at about 1:00 a.m. with Cody Gross and Pat McGimpsey. After returning briefly to the McGimpsey home (for approximately one-half hour), they proceeded to the residence of the deceased. After purchasing 24 Molson Canadian beer, they went up to the deceased’s apartment where the group settled in and were, by Mr. Pachkowski’s account, having a good time and enjoying the good mood and atmosphere. He testified that he, Cody Gross and the deceased, smoked a joint together. Respecting his own sobriety, he indicated that while he had a slight buzz, he was nonetheless “pretty sober”. At a certain point Lori Buxton received a call on her cell phone from her sister Carlie who was with the accused. They wanted to come up to the deceased’s apartment. The deceased was asked and gave his “okay”.
[94] Before Carlie Buxton and the accused entered the apartment, this witness testified that he attended to the hallway area where he met the accused and said “Hey man, no problem right?” The accused responded by saying “No, it’s all good.”
[95] This witness described the accused’s sobriety (at the point when he arrived at the apartment) as “slightly buzzed but not overly intoxicated”. He described the accused as still able to walk and have a normal conversation.
[96] When the accused entered the apartment, he turned to the deceased and said “I know you.” The deceased apparently said “No you don’t.” The accused, who at this point was leaning against the wall, insisted saying “Yes you do … You jacked me.” Cody Gross, who was at this time in the living room, got up and said to the accused “If you want to fight someone, fight me. Don’t disrespect a man in his own house.” To this, the accused said “Okay, I’ll stop.” While this was going on, the deceased remained behind the portable bar. At this time, this witness was on the sofa in the living room.
[97] The accused proceeded to sit down and asked Cody Gross if he wanted to play dice. Cody Gross said no at which time the witness went to look for some dice on a nearby TV stand. When he returned he heard the accused continuing to argue with the deceased. At this stage according to this witness, the accused was seated in the chair (although not fully seated down) with one knee bent on the chair and another foot on the ground. The witness testified that the accused continued to antagonize the deceased. This caused the deceased to say “Get him out of here.” The deceased turned to Carlie Buxton and asked her to ask him to leave.
[98] According to Mr. Pachkowski, the accused was now adopting a tone which seemed to suggest that he was “trying to start something”.
[99] A moment later, the witness saw the accused on his cellular telephone in a conversation during which this witness seemed to recall the accused talking about having more people come to the apartment. At this stage the deceased responded by saying that he had a four-year old child in the apartment to which the accused then stated “Fuck you and fuck your kid.” The deceased then pointed to the door saying “Fuck you. Don’t talk about my kid. Get out.” The accused then stood up and said with his arms spread “What are you going to do about it?”
[100] It was at this point that some in the group were saying “Get him out of here, get him out of here.” The witness then recalls the accused and the deceased coming from their respective positions (the accused from the corner and the deceased from behind the bar). They met in the middle of the living room. According to this witness he could see nothing in either of their hands. They began to fight and the deceased was throwing punches to the accused’s face who at the same time, appeared to be fighting back.
[101] During this fight, the witness could only see the accused’s left hand. At one point, this witness stated he believed that the accused had had enough of the fight so he (the witness) went to pull the deceased back at which time the deceased fell to the ground. The witness immediately wondered to himself “what happened” and that is when the witness noticed blood on the deceased’s torso. The witness then heard Cody McGimpsey scream “He’s got a knife.” The accused was then hit with a beer bottle and then hit again with a stool. The accused nonetheless broke through the group and left the living room but was soon tackled at the front door.
[102] In cross-examination, Mr. Pachkowski acknowledged that he was a friend of the deceased and that he also knew his family. He also advised that Cody McGimpsey was similarly a friend of the deceased. Respecting the relationship between the deceased and the accused, this witness did not know whether the accused and the deceased knew each other but did know that they were aware of each other.
[103] In cross-examination this witness said that he believed that in terms of sobriety, the deceased was completely fine. Indeed, he testified that he had no idea how it was that the deceased had the blood alcohol level he had.
[104] In cross-examination this witness was challenged respecting the fact that he had said nothing in his police statement about seeing and speaking to the accused prior to his entering the deceased’s residence immediately upon arriving with Carlie Buxton.
[105] This witness acknowledged in cross-examination that the accused may have been intoxicated. He acknowledges having said in his police statement that when asked who was the aggressor, he responded that it was the accused “because he was drunk”. Mr. Pachkowski also acknowledged saying in his police statement that the accused was “just out of his mind”. He went on to further say that the accused was in a state where he was “not knowing what he was doing almost to the point of blacking out.” Mr. Pachkowski also acknowledges saying that the accused had consumed at least 10 beer.
[106] When specifically challenged on the point, the witness stated that when the deceased warned the accused not to talk about his kid in the manner in which he had, he (the deceased) did not have a knife in his hand. Indeed, this witness maintained that leading up to the fight, he did not see a knife in anyone’s hand. He repeated he could only see one of the accused’s hands during the fight but it did appear as if he (the accused) was fighting back.
[107] When confronted with that portion of his direct testimony where he stated that Cody McGimpsey yelled “He’s got a knife”, Mr. Pachkowski acknowledged that he had said nothing in that regard in his initial police statement.
Cody Gross
[108] This witness was 22 years of age at the time of the incident in question. He confirmed that he arrived at Club 3D with some friends at 11:00 or 11:30.
[109] This witness testified as to knowing the accused as a friend of a friend.
[110] Cody Gross testified that although he saw the accused at Club 3D on the night in question, they did not speak.
[111] When Cody Gross left Club 3D, he described himself as having “a little buzz”.
[112] Upon leaving Club 3D he met the deceased outside the bar.
[113] This witness purchased some beer which he says he took back to Cody McGimpsey’s place where he along with Cody McGimpsey and Darcy Pachkowski, consumed one or two of them.
[114] The above individuals went to the deceased’s apartment at what this witness estimated was 1:00 or 1:30 in the morning. There he remembered rejoining Lori Buxton, Allison Fogg and Carlie Buxton.
[115] The accused arrived with Carlie Buxton shortly thereafter. When he entered, he began to “antagonize” the deceased. Mr. Gross described how, as the accused was standing in the hallway leading into the apartment, he recalls hearing the accused swearing at the deceased who remained standing up, behind the bar in the living room. The witness recalls hearing the deceased tell the accused to get out of his apartment but the accused did not leave. According to this witness, the accused continued to antagonize the deceased.
[116] At this point, Mr. Gross stated to the accused “Sit down or I’ll beat you up.” In response to this warning, the accused seemed to calm down and he proceeded to take a seat in the corner of the living room in the chair referred to by most of the other witnesses.
[117] The accused then asked this witness if he wanted to play a drinking game. The witness said no. It was at this point, that the witness started to once again “pick on” the deceased. The accused said amongst other things, “Fuck you and your kid.”
[118] Mr. Gross testified that the only weapon he saw was a butcher knife the deceased had tucked behind the bar with which the deceased, up until that point, had done nothing. At one point, the witness testified that the deceased took the knife in his hand above the belt level, turned to him (Mr. Gross) and said “self defence”. The witness stipulates that the deceased was sitting down (behind the bar) during the three to four seconds during which he had the knife in his hand.
[119] When the deceased put the knife down, he placed it back on the bar at the same location as depicted and identified by Mr. Gross in photo 14 of Exhibit 1.
[120] In response to the accused’s next comment “Fuck you and fuck your kid”, the deceased became “really angry” and it is at that point that while saying “Get the hell out of my apartment”, that the deceased moved from around the bar. According to this witness, the deceased moved towards the accused with nothing in his (the deceased’s) hand. Mr. Gross describes the deceased as having moved at a normal pace.
[121] The two individuals started fighting towards the back window in the living room at which time the deceased landed a couple of punches to the accused’s face. According to the accused, the deceased was “winning the fight”, but the accused nonetheless, looked like he was “defending himself”. Mr. Gross said the fight ended when the deceased, turned around, and fell flat on his face. It was at that point, that this witness stated that Cory McGimpsey hit the accused over the head with a stool and then someone threw a beer bottle at his head.
[122] After briefly attempting to attend to his dying friend, this witness then moved to the front door area where, after putting on his boots, he proceeded to “stomp” the now apprehended accused in the face. The witness described the accused as bloody and beaten when he left the apartment “crawling down the hallway”.
[123] In cross-examination, this witness acknowledged being good friends with the deceased although no longer good friends with Mr. McGimpsey or the girls who were part of the group on the night in question.
[124] Mr. Gross acknowledged on cross-examination that despite his earlier testimony that he left Club 3D with “a little buzz” as a result of “a couple of drinks”, in his previous police statement, he had stated “I was buzzing at the time” after having consumed about five drinks (before he left Club 3D). He further acknowledges having one beer prior to his arrival at the deceased’s apartment.
[125] Also on cross, this witness conceded that the accused may have been drunk by the time he got to the deceased’s apartment as he “had an arrogance to him”.
[126] This witness had earlier maintained on direct examination that at the point where the deceased (from his position standing behind the bar) turned to his left and showed this witness the butcher knife (with the accompanying comment “self defence”), he (the witness) did not believe the people across the room could see the knife. On cross-examination, however, he qualified that assertion by acknowledging his earlier police statement wherein, when asked whether or not the accused would have seen the knife at that point, he responded “He might have, might not”.
[127] This witness accepted defence counsel’s suggestion that despite the accused’s obvious antagonism, he never asked the deceased for a fight.
[128] Mr. Gross testified that at the point where the very angry deceased came from behind the bar and moved towards the accused, he did not have any knife in his hand. He does acknowledge, however, that from his position, he may not have been in a position to see such a knife.
[129] Mr. Gross further acknowledges in cross-examination that when the deceased moved from behind the bar towards the accused, the deceased ran towards the accused and pushed him towards the window area where he began pummeling and punching the accused with both fists. It was clear to this witness that the deceased was getting “the best of the fight”.
William “Cody” McGimpsey
[130] This witness was 21 at the time of the incident.
[131] He acknowledged early in his direct examination what is his significant criminal record. That record included convictions for assault peace officer, robbery with violence, and breaches of probation. He has served time in custody both post conviction and pre-trial.
[132] Between the time of this incident and the accused’s preliminary inquiry, this witness became involved in two incidents of breach of probation with offence dates of March 21, 2007. He ultimately pled guilty to one of those counts on December 12, 2008 for which he received a fine of $400.00. The second count of breach of probation was stayed. The relevance of those two breaches of probation offences and their timing vis-à-vis this witness’s testimony and his ultimate guilty plea on December 12, 2008 (three weeks after the preliminary inquiry) will be further explained below.
[133] As of March 2007, this witness lived with his father and brother, Pat McGimpsey, at a residence here in the City of Winnipeg. On the evening in question, his brother Pat was out with Cody Gross and Darcy Pachkowski. He testified as to how those individuals came over to the McGimpsey house at approximately 1:00 a.m. along with the deceased. This witness and the deceased had known each other since their youth. The group decided to go to the deceased’s apartment where this witness knew the deceased lived with his three or four-year old son. This witness specifies that prior to going to the deceased’s apartment, he had nothing to drink.
[134] At the deceased’s apartment he met the girls (Lori Buxton, Allison Fogg and Katyln Vanachte). The witness advises that he and the others arrived at the apartment at approximately 2:00 a.m. This witness quickly took a seat in a chair in the living room right under the clock. It was at that location that this witness began listening to his I-pod. He further indicated that while he was listening to his I-pod, he was somewhat able to follow the surrounding conversations as he listened to the I-pod with only one of his two earphones.
[135] The witness testified that at the deceased’s apartment, he had only one beer and in fact, consumed only half of it.
[136] The witness described the mood prior to the arrival of the accused as calm and relaxed.
[137] Later, with the arrival of Carlie Buxton and the accused, the mood became more tense. Indeed, the witness specified that he had a “bad feeling” based upon the way the accused and the deceased were looking at each other.
[138] The witness heard the accused and deceased become involved in an argument at which time the accused was still standing in the hallway area (by the kitchen) just outside of the actual living room. The deceased was standing behind the bar. The witness testified that this initial argument lasted only a minute as Cody Gross said to the accused that he should settle down. In fact, according to this witness, everyone tried to “de-escalate the situation”. The result was in fact a temporary calming down of what seemed to be escalating. The witness seemed to recall the accused going into a different room.
[139] At some point the accused would have returned to the living room where he began to text and talk on his cell phone. Whatever was said by the accused in his conversation with the person to whom he was speaking, it was apparently heard by the deceased who mentioned that he had a young child at the apartment. The accused responded by saying “Fuck you and fuck your kid” and further, “Are you afraid of me and my friends?” It was at that point that the deceased asked the accused to leave. The deceased was still behind the bar and it was during this period that the witness believed the deceased may have been cutting some “weed” with a butcher knife. Whatever the deceased was doing, he was next seen by this witness to lift his arm and extend it 90° from his body and point (with the butcher knife in his hand) towards the door and ordered the accused to “Get the fuck out of here.” At this point, the accused was still in his chair. The accused did not leave. The deceased put down his knife and repeated “Leave my house.” The deceased remained behind the bar but there appeared to be no reaction from the accused.
[140] Later, after the deceased had put down the butcher knife, he walked over to the accused. He again asked the accused to leave. According to this witness, the deceased had nothing in his hands when he moved towards the accused. The accused stood up and the witness had the impression that the deceased was about to make the accused leave. It was at that point that the witness said they started to “wrestle”. The witness specified that the deceased walked over to the accused with a “normal walk”.
[141] After they began to wrestle they also began to exchange blows. This according to the witness went on for a couple of minutes. The physical fights started by the chair (where the accused was sitting) and moved towards another location (where the witness had been sitting). After the fight had began, the witness moved towards the bar area.
[142] The witness stipulates that when the fight began, the accused and the deceased had each other by the collar.
[143] While this witness described the fight as initially involving the two individuals exchanging blows, he added that during the course of the fight, the deceased, although still throwing blows, seemed to be slowing down. The accused seemed to be continuing to go “full force”. The witness wondered to himself “what was going on”. Following what this witness described as the progressive slowing down of the deceased, he collapsed, falling to the ground. This witness heard someone say “He’s been stabbed.” It was then that the witness testified that he threw a bottle at the accused who was by this time, standing right in front of the living room area. This witness testified that at this point, he saw nothing in the accused’s hands.
[144] Having thrown the beer bottle at the accused, this witness then picked up a bar stool and with it, hit the accused in the head. This staggered the accused as he tried to run out the door. Cody Gross said “Don’t let him get away.” Accordingly, at the front door the witness grabbed the accused and put him in a headlock preventing him from leaving. He got the accused to the ground at which point Cody Gross arrived and amongst other things, kicked him in the face. At this point, as the witness was on top of the accused, he allegedly said to the witness “What, did I kill your boy?” The accused then asked whether they were going to keep him until the police arrived. This witness acknowledged that the accused was severely beaten.
[145] In cross-examination, William McGimpsey conceded that he was a very close friend of the deceased. He also acknowledges that he may have left some details out of his earlier police statements, namely, the beating that was inflicted upon the accused as well as the alleged comments made by the accused to him at the front door while the accused was being prevented from leaving.
[146] Respecting the specific comments that this witness alleges the accused said at the front door (“What, did I kill your boy?”), defence counsel suggested that those comments were the product of the quid pro quo respecting what defence counsel alleged was favourable treatment for what were the witness’s outstanding offences at the time of the preliminary inquiry. It was the suggestion of defence counsel that the witness received consideration respecting those charges (one of the two breaches was stayed and the other was disposed of by way of a fine). Counsel contended that that consideration resulted in this witness providing an enhanced detail never before revealed to the police (i.e. the alleged comments of the accused at the front door). In response to that allegation, this witness insisted that although he initially was not prepared to testify at all, it was never the case that he was negotiating for or holding back any one particular detail in return for something for the Crown. He admits that insofar as he has spoken to the police or provided testimony for consideration respecting what were those outstanding charges, his earlier unwillingness to participate related to testimony in general. Any related negotiation did not require him to provide any specific, additional or enhanced detail. This witness further insists that to the extent that any additional detail that he has given in his viva voce testimony was not previously included in an original police statement, such detail is a result of it having “simply slipped his mind”.
[147] This witness admitted in cross-examination that he cannot say how much alcohol the deceased would have consumed on the night in question.
[148] This witness concedes that because he was listening to the I-pod, even with just one earphone, he cannot say much about the initial conversation between the accused and the deceased which led up to the fight. This witness acknowledged in cross-examination that he did not believe there was anything that would have impeded others present in the living room from seeing the deceased when he extended his arm 90° (with the knife in his hand), and pointed it towards the door asking the accused to leave.
[149] Apart from the above reference, this witness did not at any other time see the deceased display a knife.
[150] Mr. McGimpsey stated in cross-examination that at the time the deceased came across the room towards the accused, the accused was still seated. He remained seated until the moment the deceased was directly in front of him.
[151] This witness acknowledged that in the period following this incident, he talked with his brother and Cody Gross about the respective versions and recollections of what happened.
[152] Like the other witnesses whose credibility and reliability I must assess, I am required to consider any contradictions, inconsistencies and omissions as they may arise in the context of this witness’s testimony. In addition (as conceded by the Crown), given this witness’s potential importance either individually or cumulatively with the other witnesses, I must also (when assessing the evidence of this witness) instruct myself pursuant to the case of R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. Such instruction is necessary for two reasons: first, the witness has a significant criminal record and second, he made acknowledged attempts to obtain some consideration for his testimony in this prosecution.
[153] In instructing myself pursuant to the case of R. v. Vetrovec, supra, I must keep the accompanying warning in mind as I consider how much or little I will believe of or rely upon the evidence of William McGimpsey when I am making my determinations in this case.
[154] In light of this witness’s long record and his attempts to obtain consideration for his testimony, common sense requires that I look at his evidence with great care and caution. While I appreciate that I am entitled to rely upon this witness’s evidence even if it is not confirmed by another witness or other evidence, it would be dangerous for me to do so. Accordingly, I have looked for some confirmation of this witness’s evidence from somebody or something other than this witness. To the extent that I have found such confirmation, it is still my determination as to how much, if at all, I will rely upon some parts of this witness’s testimony in deciding whether the Crown has proven the case against the accused beyond a reasonable doubt. While this sort of confirmatory evidence does not have to meet the standard required for “corroboration” under the former accomplice rule (i.e. it does not have to specifically implicate the accused in the offence charged - see R. v. Kehler, 2004 SCC 11 (CanLII), [2004] 1 S.C.R. 328), the evidence to be confirmatory, should be testimony of another witness or witnesses or other evidence which can nonetheless help restore my faith in relevant parts of William McGimpsey’s evidence.
[155] Some of the potentially confirmatory evidence about which I will make mention, may confirm or support some parts of this witness’s testimony. But in that regard, it is for me in the end to decide whether that evidence confirms or supports William McGimpsey’s testimony and how it will affect whether or how much I believe of or rely upon that testimony in deciding this case.
[156] In the present case, I find that there is indeed confirmatory evidence which helps restore my faith in certain relevant parts of William McGimpsey’s evidence. For example, I note the following:
• This witness’s evidence is confirmed in respect of where he went prior to attending the deceased’s apartment (by the evidence of Cody Gross).
• Although details may differ, this witness’s testimonial narrative as to how events generally unfolded at the deceased’s apartment, is supported by all of the civilian witnesses about whose evidence I have not raised questions and whose testimony I have accepted.
• On some of the details as to what happened in the deceased’s apartment, this witness’s testimony is confirmed by the testimony of other witnesses: for example, like other witnesses, Mr. McGimpsey did not see anything in the deceased’s hand as he approached the accused or during the fight.
• Other civilian witnesses confirm that after the fight, the accused was hit by a thrown beer bottle and a stool.
• Other witnesses confirm the “fight” or beating which took place at the doorway of the deceased’s apartment; a fight or beating in which this witness acknowledges participating.
[157] Given the above confirmatory evidence, I am comfortable in relying upon this witness with respect to most details of his version of what happened in the apartment just before, during and after the fight involving the accused and the deceased. I should also note that amongst all of the witnesses, this witness had the least to drink and his sobriety was never seriously challenged.
[158] Insofar as there are some differences that exist as between some of the precise details of this witness’s version and those versions of other witnesses, I see some of those differences as arising as a consequence of differing opportunities (because of such things as vantage point and attention) to see and hear what happened.
[159] I have expressed above my comfort in relying on much of what this witness said in his testimony. However, given the general absence of any confirmatory evidence in respect of the supposed comment that the accused is alleged to have made after the fight in the apartment doorway (wherein the accused was alleged to have said “What, did I kill?”), a comment which was heard by no one else and was not previously mentioned in this witness’s police statement, I am not prepared to conclude that that comment was made by the accused and/or that it should be relied upon. Accordingly, my findings in this case, insofar as they may rely upon portions of this witness’s testimony, will not have as a basis the alleged comment made by the accused at the doorway just prior to his departure.
Dionne MacGuire
[160] In March of 2007, this witness was a neighbour of the deceased. They lived in the same apartment block on Hamilton. In fact, she lived two doors down from the deceased’s apartment (with one apartment between the two).
[161] On the date in question, Ms. MacGuire was awoken by noise caused by loud voices and the opening and closing of apartment doors. When she went to observe the hallway area, she saw what she described as a young white male coming towards her, covered in blood. He appeared to be moving away from the deceased’s apartment. This witness described that he was walking towards her, slowly but normally.
[162] The witness said to the male “Wow, buddy are you okay?” The male responded calmly saying “Yeah, I’m okay.” The male kept walking. At one point as he walked away, he kind of stumbled up against the wall after which he “braced himself” and continued walking. According to the witness, he left a bloody stain along the wall. Apart from the stumble, this witness testified that the male never otherwise lost his footing. He carried on walking the approximately 40 feet from her to the exit area of that particular wing of the apartment block.
[163] On cross-examination, Ms. MacGuire acknowledges that her contact with the young man was very brief. She also agreed that the male looked a bit “dazed” and disoriented.
Tylene Zeuch
[164] In March of 2007, this witness lived in the same apartment block as the deceased. They were in fact neighbours with this witness living in apartment 323 and the deceased living in apartment 320.
[165] In the early morning hours on the day in question, this witness was in her apartment playing Yahtzee. Upon hearing the sound of screams, she went to her apartment door to attempt to discern from where the noise was coming. She went into the hallway and made her way (through what was the opened door) into the apartment of the deceased. In the doorway were two males “scuffling”, with one of the two holding the other in a headlock. She knew neither male. She moved past the two males into the doorway and into the apartment where she saw the deceased lying on his back, in a pool of blood. She quickly moved towards him and tried to get a response but none was forthcoming. The witness advised that she remained in the deceased’s apartment for approximately two minutes.
[166] She went back into the hallway to see what was occurring. She saw that the two earlier-mentioned males were still “scuffling”. She intended to go back to her apartment and call 911 when the male managed to get out of the headlock and began to move away. The witness heard someone say “That’s him, don’t let him leave.” The male proceeded to pass the witness in the hallway without saying anything. He walked some 20 to 30 feet towards the door of that particular wing of the apartment block (as depicted in Exhibit 1, photos 18 and 19).
[167] The witness quickly ran past him and tried to close the door in order to prevent him from leaving. The witness stated “You’re not going anywhere” and was able to hold the door closed for approximately 25 seconds. However, because of his strength, he was able to open the door and pass her. This witness has no idea where that male went after opening the door and passing her.
[168] The witness described that male as covered with blood “all over his torso and head”. On cross-examination, the witness acknowledged not knowing the male who walked by her (covered in blood). She also conceded that when she came upon the scene, it was a “bloody mess” which was extremely upsetting - no less so because the deceased was her friend.
[169] The witness testified that she did not see anybody hitting anyone else. She also advised that when she saw the male who walked past her, he was not crawling but walking. Neither did she see that male falling down or bracing himself against the wall.
[170] I should point out that while neither this witness nor the previous witness (Dionne MacGuire) identified the male in the hallway as the accused, on the basis of all of the evidence, I have no difficulty in inferring that the bloodied male (observed by both Tylene Zuech and Dianne MacGuire) was in fact the accused.
Constable Tyson Langrell
[171] This officer was on duty on the date in question in March 2007. He was working with his partner, Constable Christine Welch. He was one of the responding officers who attended the deceased’s apartment at 320 - 465 Hamilton after receiving a message from dispatch.
[172] Upon arriving near the entrance to the apartment block, this witness noticed a male with no T-shirt who appeared to be covered in blood. The witness testified that it appeared that the male saw the police unit and proceeded to run to the back of the apartment building. He was heading north. Constable Langrell went to check the area towards which the male seemed to be moving but saw no further signs of the male.
[173] The officer then went inside the apartment block to the third floor area where the deceased’s apartment was located. There he saw people in the vicinity of the deceased’s apartment, hollering, screaming and generally in an hysterical state. At that point, this witness acknowledges that he did not know who or where the suspect was.
[174] The witness noted that the deceased was taken to the ambulance around 3:04 a.m. At 4:36 that morning, he was pronounced deceased.
[175] Pursuant to this witness’s continuing involvement in this investigation, on August 31, 2007, he measured the distance from the front door of the apartment block at 465 Hamilton (the block in which the deceased lived) to what he later learned was the accused’s family residence on the day in question. This witness made that measurement using his cruiser car’s odometer. He determined that the shortest route by street between the two locations would be 1.4 kilometers.
[176] On cross-examination, Constable Langrell acknowledged that he cannot say what the bloodied male (who he observed upon arriving at the Hamilton Street block on March 17, 2007) himself was looking at or observed at the moment Constable Langrell noticed him.
[177] Again, although this witness did not identify the accused at trial as the male he observed outside the apartment block, on the evidence, I have no difficulty inferring that it was indeed the accused.
Patrol Sgt. Victor Dhillon
[178] On March 17, 2007, this witness was on duty with the Winnipeg Police Service working out of Division 11. In the early morning hours of that date, because of a request for assistance he received from officers working out of District 2 (the St. James area), he assigned himself to assist. He attended that area without a partner.
[179] Patrol Sgt. Dhillon indicated that he never actually went inside the deceased’s apartment building on Hamilton as he had received, while en route to that block, information that a male had fled on foot from that same area. It was this witness’s intention to assist in locating that suspect.
[180] Prior to actually searching the area for the suspect, this witness received further information, this time advising that the suspect’s address was at on Bernadine. Accordingly, the witness dispatched a cruiser car to go there in an effort to arrive before the accused. The plan was to “sit on the house”. Again, before that could happen, this witness received additional information that the suspect may have been at the Grace Hospital. It was upon receiving that information, that this witness went to the Grace Hospital in an effort to make contact with what he thought might be the suspect. As it turned out, it was not in fact the suspect and efforts were made to re-attend as initially planned, the suspect’s house on Bernadine.
[181] Before this or other officers could enter the house at Bernadine, this witness was advised that a male was running out the back door of that residence. Other officers gave chase.
[182] When this witness finally entered the suspect’s home and attended downstairs to the basement area, he noted (as depicted in photo 22 of Exhibit 1) that the shower area was wet and seemed to have been recently used. As this witness noted and as can be observed from photos 23 and 24 of Exhibit 1, there were still wet towels and clothing on the ground.
Constable John Scott Taylor
[183] This witness testified as a police officer connected to the Winnipeg Police Service Canine Unit.
[184] On March 17, 2007 this officer was working the night shift when he received a dispatch call requesting his assistance.
[185] The witness arrived along with his dog “Judge” at 2:59 a.m. to the area of the deceased’s apartment block on Hamilton. The witness was briefed by Constables Langrell and Welch respecting “the blood trail” and then proceeded to place the dog on a 20-foot tracking line. After having watched the dog initially “exhaust” the track, the witness received further information about the suspect and what was believed to be his address on Bernadine.
[186] The witness and “Judge” arrived at the residence on Bernadine where the dog was again placed on a 20-foot tracking line. The dog immediately found a track from the rear of the residence on Bernadine where this witness noticed a fence.
[187] The dog followed the track through parts of the neighbourhood and eventually located the suspect accused between 648 and 649 Stewart. The witness described the suspect as appearing to be hiding, hunkered down, lying face down.
[188] Having found the suspect, this witness had no further dealings with the suspect.
Constable Angela Prefontaine
[189] This witness testified as to attending the residence of the accused on Bernadine in the early morning hours on the date in question. She arrived at that location at 3:11 a.m. to find the house in total darkness. There were a couple of vehicles in the driveway. Based upon a check of one of the vehicle licence plates, the family name Cassan was linked to the residence.
[190] This witness then received information suggesting that the accused might be at the Grace Hospital. She attended only to find that he was not at the hospital.
[191] Constable Prefontaine arrived back at the residence on Bernadine to now find a light on in the interior of the house. She requested back-up.
[192] Constable Prefontaine continued to observe the front of the house and attempted to ensure there was no movement. A decision was made to attend to the house with three other officers. They then noted that someone was attempting to exit the back door. Approaching the back, they noticed a male approximately 40 feet away. The officers announced themselves saying “Winnipeg City Police”. There was no response from the male who stood there momentarily. The backyard (described as being full of heavy snow) had a fence which was approximately 15 feet from where the male was standing. After having momentarily hesitated, the male ran to the fence which he proceeded to jump over. The police proceeded to give chase. While at one point they were within 20 feet of the male, the police soon lost him.
[193] This witness eventually met up with the police dog and Constable Taylor at the rear of a house on Stewart Avenue, a location in the same neighbourhood as the deceased’s residence. There, the dog again began to react, soon after leading the police to the accused where he was arrested.
[194] According to this witness, when contact was made with the accused, he had no difficulty in complying with the police directions. The witness did, however, note three large gashes to the accused’s head. When asked about the accused’s sobriety, this witness said he was “fine”.
[195] In cross-examination, this witness acknowledged that her contact with the accused after he was located was brief (approximately three minutes). In fact, some of that time involved the period during which the accused was on the ground. Her contact with him involved no sobriety tests. However, this witness did stipulate that she did have occasion to observe the accused running during the police pursuit. During that pursuit, the witness said he was running “full out”. She could not say precisely for how long she would have observed the accused running.
Constable Michael Allen Hornung
[196] This officer was dispatched at 2:43 a.m. on the day in question for the purpose of providing assistance to the Canine Unit in its pursuit of a male suspect. Despite those initial instructions, this was also one of the officers who attended to the Grace Hospital thinking that the suspect was at that location.
[197] After having concluded that the suspect was not at Grace Hospital, this witness attended to the Bernadine address along with three other police officers (in two separate cruiser cars).
[198] This officer approached the residence on foot only to be advised by another officer that a male suspect was running out of the back door of that residence. This officer saw the male in the backyard standing near a wooden fence approximately 25 feet away. The officer noted the snow in the backyard.
[199] The suspect was told to stop, and for a moment, he did. Soon after, he jumped the fence and the police pursuit commenced.
[200] This witness testified as to the considerable head start the male suspect had. This witness testified that he (Constable Hornung) did have difficulty running in the snow covered areas where the pursuit was taking place. The witness also indicated that he was running as fast as he could to catch the accused, but cannot recall at any point, closing the gap. At no point did he ever see the accused stumble or fall, whereas he (Constable Hornung) did in fact fall.
[201] At a certain point the witness lost sight of the accused. Shortly thereafter, he heard a dog barking in one of the backyards in the area where the pursuit was taking place (on Stewart Avenue). When the witness attended to the backyard area, he found Constable Taylor and his dog along with Constable Prefontaine and the accused.
[202] This witness searched the accused while standing outside the cruiser car. He noted the laceration on the accused’s head underneath his hat. The witness smelled nothing and testified that apart from the injuries, the accused “seemed fine”.
[203] The accused was transported by the witness to the Grace Hospital at 4:03 a.m. where he was checked for his injuries. At 4:04 a.m., he was charged and cautioned for murder and provided his rights under the Canadian Charter of Rights and Freedoms (the Charter). He was told he could speak to a lawyer but made no response. After several non-responses, the witness asked loudly “Are you listening, did you understand?” It was at that point that the accused “kind of grunted” an acknowledgement that he understood.
[204] At the hospital the accused was seen by a nurse in triage at which time he had his head bandaged and was taken to the suture rooms. There he laid on a bed and slept.
[205] At 4:45 a.m. he was seen by an emergency doctor and was awakened for that examination. At 4:51 a.m. he was taken for X-rays and again fell asleep. He was awoken for the X-rays and was later taken for a CT scan. When he was returned to his room he slept again.
[206] At 6:26 a.m. he was attended to by another doctor who provided him with staples to deal with the various injuries he had. At one point he went back to sleep while the nurses were dressing his wounds.
[207] At 7:30 a.m. he was released from the hospital and brought to the Public Safety Building.
[208] On cross-examination, this witness specified that throughout his contact with the accused he (the accused) walked on his own power.
[209] The witness acknowledged that before 8:00 a.m. on the morning in question, this witness and the accused had really no significant or meaningful discussion.
[210] According to this witness, the accused fell asleep a total of four times during this witness’s contact with him after having taken charge of him after his arrest.
Erik Cassan (the accused)
[211] The accused is currently 25 years of age. He testified that prior to his arrest respecting the allegation currently before the court, he was employed in an auto body shop. In that regard, he acknowledged that in the course of that employment, he would be required to use a knife to cut the tape used on cars.
[212] Early in his testimony, the accused was asked whether he intended to kill the deceased. He replied “No”.
[213] The accused testified respecting his activities leading up to the early morning hours of the day in question. He testified as to having finished work at 5:00 p.m. He then went home where he received a call from a Mr. Kerry Young who invited him to come over and have a drink.
[214] Before arriving at Kerry Young’s residence, the accused stopped to purchase a six-pack of beer at the vendor. After arriving at Mr. Young’s place, the accused and he proceeded to drink and play pool. The accused testified to having consumed all of the six beer. He added that having consumed his own beer, he then helped himself to additional beer in Mr. Young’s fridge. He cannot say how many more beer he would have consumed.
[215] At a certain point, Mr. Young was required to leave. The accused stayed at Mr. Young’s residence and continued to drink.
[216] From Mr. Young’s residence, the accused went to a second location, the residence of Chris Bradley. There, the accused advised the court that he was drinking hard liquor. The accused noted that he does not normally drink hard liquor.
[217] The accused next remembers being at a table at Club 3D. He cannot remember how he got to that location. At Club 3D, the accused remembers drinking but cannot remember what or how much.
[218] The accused remembers recognizing the Buxton sisters at Club 3D but cannot remember the others who may have been present.
[219] The accused cannot remember how long he would have stayed at Club 3D. He does indicate, however, that by the time he left he “felt drunk”.
[220] The accused cannot remember getting into any confrontations at Club 3D nor can he remember the specifics of any conversation he had with anyone.
[221] The accused indicates that he does have some memory of being in a taxi with one of the Buxton sisters but he cannot remember which one.
[222] He cannot remember arriving at the apartment building on Hamilton. But he does remember being seated in a chair. He cannot remember anybody else being in the living room except the deceased. He said he remembers seeing the deceased across the room (flash a knife). He cannot say with which hand the deceased was holding the knife. He recalls the accused “rushing” him from across the room. In his testimony, the accused stated that he (the accused) “thought I was going to die”.
[223] The accused testified that he next felt receiving a “shot in the head” and then, felt blood on his head. The accused testified that “My next thought was to get out of there.”
[224] The accused testified that he cannot remember what he would have said to the deceased or what the deceased would have said to him.
[225] When asked on direct examination whether he stabbed the deceased, the accused stated “I don’t know.” When asked “Did you punch him?”, the accused responded “I don’t know.” When asked “Did he punch you?”, the accused stated “I don’t know.” When asked “Did he stab you?”, he responded “I don’t know.” The accused stated that he could only remember a sharp pain in his head and face and then the feeling of blood on his head and face. He repeated, that he did not know what he had done to the accused and had really no memory of the confrontation. He also does not recall being struck in the head by either a beer bottle or stool. Upon being shown photograph 7 of Exhibit 1 (the living room), the accused confirms that he has no independent recollection of where he was sitting or standing.
[226] The accused cannot remember leaving the living room and he also cannot remember any confrontation at the doorway with William McGimpsey or Cody Gross.
[227] What he next remembers is being at the back door of his parents’ house. He cannot remember what he did there and cannot remember talking to anyone. When asked about his recollection of his being at the back of his parents’ house, and when asked if he was going in or out, he indicated he could not say.
[228] The accused has no recollection of jumping over a fence, seeing a police dog or being placed under arrest. He also cannot say if he was sober by the time he got to his parents’ house.
[229] He testified that the next thing he remembered was waking up in a hospital in handcuffs and with his head in pain. He also recalls not being able to see out of one eye and being unable to breath out of his nose.
[230] The accused remembers passing out in the hospital at which time others tried to awaken him.
[231] When the accused was asked whether he had consumed drugs on the night or in the early morning hours of the day in question, he responded by saying he “could not say”.
[232] The accused does remember being put in the back of a police car and “still feeling drunk”.
[233] At the police station, the accused remembers being really sick and tired and trying to get some sleep.
[234] When the accused was shown photo 15 of Exhibit 1 (the butcher knife that had been seen by some witnesses in the hands of the deceased while he was standing behind the bar), the accused was unable to recognize or identify it.
[235] The accused was also shown Exhibit 8, a booklet of photos of the accused himself. The photos depict the accused exhibiting various injuries to his head and upper body. When asked about them, the accused advised that he could not say how he received any of those injuries. He did specify in his testimony that he later learned that amongst other injuries, he had various gashes to his head (requiring 20 staples) and a broken nose.
[236] In cross-examination, the accused was asked about the folding knife contained in photo 12 of Exhibit 1. He could not say if it was his but acknowledged that “It looks like the knife.”
[237] The accused testified that he went to school with the deceased and when asked how they got along, he stated that they were “not friends, but not enemies either”. When asked why he went to the deceased’s apartment, he responded “I don’t know.”
[238] In cross-examination, the accused’s recollection seemed somewhat clearer, remembering that when the deceased was across the room, he and the deceased were in an argument or disagreement. He repeated that the deceased “flashed a knife”. In that regard, all the accused can remember seeing was a blade. The accused specified that the deceased would have been approximately 10 feet away and that the knife was “flashed in a threatening way”.
[239] In cross-examination, the accused also remembered that the deceased was standing when he flashed the knife but he does not know what he did with the knife after he flashed it. The accused specified that the flashing of the knife would have taken only one or two seconds after which the accused “rushed” him. When asked again, he confirmed that when the accused was rushing across the room, he (the accused) did not know where the knife was. When asked “Why did you think you were going to die?”, the accused responded by saying “Because I saw him with a knife, and the next thing, he’s rushing me.” He was then asked again, why, if he (the accused) did not see the deceased with a knife when he ran across the room, did the accused think he was going to die? The accused responded “I wasn’t sure if he had the knife or not.”
[240] As with any witness, after a review of an accused person’s testimony, a trier of fact can choose to accept or believe some, none or all of that accused’s testimony. However, where an accused testifies, a trier of fact need ensure that testimony insofar as it impacts upon any of the essential elements of an offence in a given case, is assessed mindful of the three-step procedure set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Although the three-step procedure set out in W.(D.), supra, originates from and best serves the trier of fact in situations where there are two opposing or conflicting versions, the procedure may also be a useful tool to ensure that the trier of fact not “simply choose” one version over another and/or permit an unconscious shifting of the burden of proof. It is therefore now well established that where credibility is important, triers of fact should be instructed that:
1. if the evidence of the accused is believed or accepted, they must acquit;
2. if they do not believe the testimony of the accused but are left in doubt by it, they must acquit; and
3. even if not left in doubt by the evidence of the accused, they still must ask themselves whether they are convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which they do accept.
[241] When reviewing and assessing the evidence of the accused in the present case, I am struck by how much he cannot recall and/or how much he says he “does not know”. Similarly striking, are some of those particular portions of his testimony that he does coincidentally recall and for which he has apparently a rather specific and clear memory. It is with concern and some incredulity, that I note that in an ocean of amnesia, there appear to be islands of recall. More concerning and more suspicion engendering is the fact that those areas of recall coincidentally correspond to critical matters about which I must make important determinations (e.g. alcohol consumption - state of mind, and his testimony respecting the timing of the flashing of the knife - self defence and provocation).
[242] I note that while not necessary, the accused’s lack of recall or amnesia was in no way explained or referenced with forensic or medical evidence. Presumably, it is the position of the defence that such an inability to recall is the result of either an advanced state of intoxication or the injuries from the beating (in the doorway of the apartment of the deceased) or both. Again, while no forensic evidence is necessary to substantiate such amnesia either as a result of a state of intoxication or physical injury or both, the presence of such evidence might have assisted the accused where, as here, I have difficulty in believing his assertions about what he can and cannot recall.
[243] The accused’s memory is, to say the least, sporadic. For example, the accused’s recollection of what he did before going to Club 3D is rather detailed. Similarly, although he could not remember how many beer he had from Kerry Young’s fridge, he did have a fairly good recollection of what time he arrived at Mr. Young’s residence and the six beer he consumed there. He also recalls going afterwards to the residence of Chris Bradley (where he recalls specifically that he consumed hard liquor). His testimony and memory of what happened at Club 3D becomes, for the most part, suddenly less clear. The same can be said for his memory of what he did, heard or saw at the deceased’s apartment. Despite that general lack of memory of his time at the deceased’s apartment, remarkably, the accused does have a recollection of those specifically key moments which coincidentally, impact the key determinations that I have to make on some of those issues I earlier identified.
[244] I note that in direct examination, the accused said nothing of any conversation he might have had with the deceased, whereas in cross-examination, he remembers what he called an argument or disagreement. I note as well, that on cross-examination, the accused supplemented his description of that important segment of his testimony (respecting the deceased having flashed the knife just seconds before rushing him) by saying that the knife was “flashed in a threatening way”.
[245] I should note in passing, that the accused’s assertion that the deceased approached him only a second or two after the deceased’s flashing of the knife, is the sole such assertion before the court. In other words, no other witness describes the seconds before the fight as including the flashing of a knife as was described by the accused. In so noting, I remind myself that I must nonetheless assess the accused’s version without consciously or unconsciously being drawn into an artificial choice as between the testimony of any and/or all of the civilian witnesses and that testimony given by the accused.
[246] Both the accused’s alleged inability to remember and the particular and isolated segments for which he says he does have recall, seem too convenient and more than suspicious. The supposed amnesia and the selective memory in the particular circumstances of this accused’s testimony, are not credible.
[247] Having determined that what the accused alleged was his lack of recall is not credible, I nonetheless can and do accept, that he was in fact accurately remembering and recounting what alcohol he remembers more or less having consumed on the night and morning in question. My acceptance of the accused’s evidence respecting his alcohol consumption and what he vaguely described as his state of impairment, is assisted and supported by the totality of the evidence coming from the various civilian witnesses whose evidence I have accepted and who, despite their differences, testified to either what they saw the accused drinking, and/or his relative state of impairment.
[248] I have set out my assessment of the accused’s testimony at this stage, so that the potential evidentiary foundation is clear for my subsequent determinations. While I specify here what it is I accept or do not accept, it should be understood that I remain mindful that in any subsequent determination on a relevant issue, it is possible that the accused’s testimony (even if not believed) might still leave me with a doubt. Moreover, I recognize that respecting any of the subsequent determinations I must make concerning the issues which impact upon the essential elements of the offence, even if I have rejected the accused’s testimony and am not left in doubt by it, I must still, on the evidence that I do accept, determine whether the Crown has met its burden beyond a reasonable doubt.
ANALYSIS
[249] As earlier stated, given the positions of the Crown and the defence and given the essential elements that the Crown must establish beyond a reasonable doubt in order to obtain a conviction for second degree murder, the issues in this case reduce to the following questions:
1. Has the Crown established beyond a reasonable doubt that the accused caused the deceased’s death?
2. Has the Crown established beyond a reasonable doubt that the accused caused the deceased’s death unlawfully?
3. Has the Crown established beyond a reasonable doubt that the accused possessed the requisite state of mind for murder?
4. Has the Crown established beyond a reasonable doubt that the accused was not provoked?
I. DID THE ACCUSED CAUSE THE DECEASED’S DEATH?
[250] For an act to cause someone’s death, it must be at least a contributing cause, one that is beyond something that is trifling or minor in nature. There must not be anything that someone else does later that results in the accused’s act no longer being a contributing cause of the deceased’s death.
[251] In answering the question whether the accused caused the deceased’s death, I have considered all of the evidence including the testimony of the accused, the civilian witnesses, the forensic report of Jocelyn LeBlond marked as Exhibit 5, and the testimony of the pathologist, Dr. Littman.
[252] If I begin with the accused’s testimony, I am required to acknowledge that he provides the court on this issue, little, if any, information. When asked if he stabbed the deceased, his response was “I don’t know.”
[253] There is significantly more information when I take into account the various descriptions by the civilian witnesses about what happened in the apartment during the fight. Despite the witnesses’ sometimes differing observations and precise detail, it is clear from the totality of that testimony that the accused and the deceased were involved in a physical altercation. Despite the fact that most of the witnesses acknowledge that the deceased was “getting the better of the accused”, for the most part, the witnesses observed both individuals throwing what appeared to be “punches” or “blows”. One of those witnesses (William McGimpsey), however, noted that the deceased began throwing punches but his punching movements increasingly slowed down just prior to his falling abruptly to the floor. This account would be consistent with the theory that while the deceased began with the throwing of punches, upon receiving some of the stab wounds I infer he clearly was receiving, during the fight, he began to slow down inexorably.
[254] I note specifically the evidence of Carlie Buxton who testified that she saw the accused pull out a knife during the fight. She also testified as to thinking she saw the accused (after the deceased was on the ground) trying to fold the knife and put it back in his pocket.
[255] In answering whether the accused caused the deceased’s death, I also take note of the fact that Exhibit 4 is the knife found in the living room area not far from where the fight took place. When the accused was asked about that knife, he acknowledged that it looked like the type of knife that he earlier testified to using pursuant to his work as an auto body worker.
[256] In considering whether the accused caused the deceased’s death, I have taken note of the forensic report of Jocelyn LeBlond marked as Exhibit 5 wherein it was explained that amongst other examinations of various exhibits, one was conducted with respect to the folding knife marked as Exhibit 4 (the knife found on the living room floor). Specifically, the blade of that knife was examined near the hilt and near the tip. Blood was identified. Moreover, a DNA analysis was conducted revealing a match with the sample taken from the deceased. At “DNA Conclusions” 2 and 3 of Exhibit 5, Ms. LeBlond states the following:
2. The DNA typing profiles obtained from the following exhibits [both from SCENE] match that of the known sample, Exhibit 1007 [LANE].
Exhibit 141 (knife, areas AA; blade, near hilt, side 1 and AB; near tip, side 1)
Exhibit 142 (tea towel, areas AA; interior and AB; near edge)
The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 1.2 trillion.
3. The DNA typing profile obtained from Exhibit 141 (knife, area AC; handle unstained portions) [SCENE] is of mixed origin consistent with having originated from two individuals. The donors of the known sample, Exhibit 1007 [LANE] and the unknown profile, personally designated as Male 1 (refer to conclusion 1), are possible contributors to this mixed profile. Based on the Canadian Caucasian population, it is estimated that 1 in 130 individuals is a potential contributor to this mixed profile (5 loci). The significance of the association increases with the number of DNA loci involved in the statistical assessment.
[257] Finally, I have considered the evidence of Dr. Littman who in his testimony, indicated that the “sharp force” injuries suffered by the deceased, could have been inflicted by Exhibit 4 (found in the living room area) which I said, was acknowledged by the accused as a knife that looked like his and like the one that he used in his employment.
[258] Having considered all of the evidence, I am satisfied beyond a reasonable doubt that the accused did cause the deceased’s death by inflicting stab wounds using Exhibit 4 during the physical fight (with the deceased) about which the civilian witnesses testified. Having so concluded, I must now go on the next question.
II. DID THE ACCUSED CAUSE THE DECEASED’S DEATH UNLAWFULLY?
[259] The unlawful act alleged to have caused the deceased’s death is an assault with a weapon (a knife). The elements of that offence must otherwise be established beyond a reasonable doubt in order to establish the unlawful act that is the foundation of this second degree murder offence.
[260] The elements of the offence of assault with a weapon (the allegedly unlawful act that caused the deceased’s death) require the court to pose the following questions, all of which must be answered in the affirmative beyond a reasonable doubt:
1. Did the accused intentionally apply force to the deceased?
2. Did the accused unlawfully apply force to the deceased?
3. Did the deceased consent to the force that the accused intentionally applied?
4. Did the accused know that the deceased did not consent to the force that the accused intentionally applied?
5. Was a weapon involved in the accused’s assault of the deceased?
Did the accused intentionally apply force to the deceased?
[261] For the purposes of committing the offence of assault, the application of force may be direct (for example, by the accused using a part of his or her body, such as a hand or foot) or indirect (for example, by the accused using an object, such as a stick, club or knife).
[262] The force applied may be violent, or even gentle. To be an assault, however, the accused must apply the force intentionally and against the deceased’s will.
[263] The word “intentionally” refers to the accused’s state of mind when he applies the force. “Intentionally” means “on purpose”, in other words, not by accident. To decide whether the accused applied force intentionally, I must consider all of the circumstances surrounding the application of the force.
[264] In the context of the physical confrontation that took place between the accused and the deceased, there can be little doubt that both individuals were involved in a fight and intentionally applied force to each other. Given those circumstances, I have no difficulty in saying that I am satisfied beyond a reasonable doubt that the accused intentionally applied force to the deceased. Accordingly, I must go on to the next question.
Did the accused unlawfully apply force to the deceased?
[265] In raising as he has, the potential application of self defence, the accused is arguing that his application of force to the deceased (which I have earlier concluded was done with a knife which caused the accused’s death) was justifiable and by extension, renders lawful what might have otherwise been an unlawful application of force. If such were to be the conclusion of this court (i.e. that the application of any of the relevant self defence provisions leaves the court with a reasonable doubt as to the unlawfulness of the accused’s application of force), the foundational illegal act at the root of the second degree murder count in this indictment, would not have been established.
[266] So, to answer whether the accused unlawfully applied force to the deceased, I must first determine, based on the evidence adduced at this trial, what if any of the potentially applicable self defence provisions possess an air of reality. If and where such an air of reality can be found, I must then consider that relevant self defence provision addressing each component element of the applicable provision.
[267] In the present case, although he conceded that his position on self defence does not represent his strongest argument against a conviction for second degree murder, counsel for the defence nonetheless urged me to consider its potential application.
[268] Based upon the evidence that I have heard and seen, there are indeed self defence sections which in my view I must address, first in respect of the issue of the air of reality and second (if an air of reality is found) respecting whether on an actual application of the self defence provision in question, I am left with a reasonable doubt respecting the lawfulness of the accused’s act.
[269] For a defence to be left with a jury, it must possess an air of reality. See Cinous. A trial judge must put to the jury all defences that arise on the facts, irrespective of whether they have been specifically raised by an accused (indeed, some of the self defence provisions addressed below, were not specifically raised by the defence). Where there is an air of reality to a defence, it should go to the jury. Conversely, a trial judge has a positive duty to keep from the jury defences which do not possess the evidential foundation sufficient to give rise to an air of reality.
[270] In R. v. Mousseau, 2007 MBCA 5; 212 Man.R. (2d) 308, the Manitoba Court of Appeal had the following comments about Cinous and the principles that flow therefrom:
14 The court added that these two well-established principles applied even when the defence lacking an air of reality represents the accused's only chance for an acquittal.
15 With respect to the evidentiary standard applicable to the air of reality test, the court set out the following two-pronged question to determine whether there is an evidentiary foundation warranting that a defence be put to a jury (Cinous at para. 65): Is there "(1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true"?
16 This analysis requires the trial judge to consider the totality of the evidence and assumes the evidence relied upon by the accused to be true. The evidentiary foundation can be found or inferred from the testimony of any witness, the factual circumstances of the case or from any other evidentiary source on the record: Cinous at para. 53. The trial judge is not to make findings of fact, weigh the evidence, determine credibility or draw factual inferences.
17 When the record does not disclose direct evidence (evidence which, if believed, resolves a matter in issue: Cinous at para. 88) as to every element of the defence, it must be determined whether the elements in issue can reasonably be inferred from the circumstantial evidence (evidence that tends to prove a factual matter by proving other events or circumstances from which the occurrence of the matter at issue can be reasonably inferred: Cinous at para. 89).
18 The approach to be followed in the circumstances described in the previous paragraph was discussed in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, and adopted in Cinous at paras. 90-91. It requires the trial judge in such circumstances to engage in a "limited weighing" (Arcuri at para. 23) to assess whether the evidence, if believed by the jury, could reasonably support the inferences the accused has asked the jury to draw.
19 Finally, the air of reality test must be applied to each element of the defence: R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272 at para. 23, and the whole defence must have an air of reality to it, "not just bits and pieces of the defence" Cinous at para. 97).
[Emphasis added.]
[271] Having examined the evidential foundation, specifically, the testimony of the civilian witnesses and the accused himself, I have determined that there is an air of reality to the potential application of the self defence provisions as set out in ss. 34.(2), 35 and 37 of the Code.
[272] It will be noted that I have not included in the above list of self defence provisions requiring my consideration, s. 34.(1). For the sake of convenience, I set it out once more:
34. Self-defence against unprovoked assault - (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
…
[273] Based upon my review of the evidence, both direct and circumstantial (from which inferences might have been drawn), I have determined that there is an insufficient evidential foundation for the suggestion that the initial punch landed by the deceased was unprovoked. Accordingly, insofar as the deceased’s approaching of the accused in the living room and the throwing of the first punch did not constitute an unprovoked assault, s. 34.(1) does not possess an air of reality. I come to that conclusion having determined that based upon the accused’s antagonistic comments and refusal to leave the deceased’s apartment (along with the accused’s provocative comments about the deceased’s son), the deceased had in fact been provoked.
[274] On this point, given what the accused said was his inability to remember what he did or what he said, his own evidence (even if I assume it to be true) does not assist him.
[275] The self defence provisions which do in fact possess an air of reality such so as to require my consideration, are addressed below.
34. Self-defence against unprovoked assault -
…
(2) Extent of justification - Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
[277] An accused who intentionally kills or seriously injures somebody in lawful self defence must not be found guilty because he or she has committed no crime. I take special note that an accused does not have to prove that he or she was acting in lawful self defence. Crown counsel must satisfy the trier of fact beyond a reasonable doubt that the accused was not acting in lawful self defence. That is also so in the case of each of the other self defence provisions which I discuss below.
[278] Respecting s. 34.(2), to decide whether the accused was acting in lawful self defence, I must consider three issues:
• Was the accused unlawfully assaulted by the deceased?
• Did the accused use force against the deceased because the accused reasonably feared that the deceased would kill or seriously injure him?
• Did the accused use force against the deceased because the accused reasonably believed that he could not otherwise save himself from being killed or seriously injured?
Was the accused unlawfully assaulted by the deceased?
[279] An unlawful assault is the intentional application of force, directly or indirectly, by any means to the accused’s body without the accused’s consent. It is not necessary that the deceased actually assault the accused. The issue is whether the accused reasonably believed in the circumstances as he knew them to be, that he was being unlawfully assaulted, not whether the accused was actually assaulted by the deceased. It does not matter whether the accused provoked the assault by the deceased.
[280] Based upon the evidence of the civilian witnesses who gave testimony with respect to how they saw the fight develop, there is evidence that notwithstanding the obviously provocative statements and attitude of the accused, the deceased was the physical aggressor. Even if I do not believe the accused respecting what he says happened just before the fight, given the fact that I have concluded that it was the deceased who came from around the bar and approached the accused to land the first punch, the Crown has not proved beyond a reasonable doubt that the deceased did not assault the accused. Accordingly I must proceed to the next question.
Did the accused reasonably fear that the deceased would kill or seriously injure him?
[281] This question requires me to consider not only the accused’s state of mind when he used force against the deceased, but also what a reasonable person would fear in the same circumstances.
[282] Did the accused fear that the deceased would kill or seriously injure him? Would a reasonable person have the same fear in the same circumstances?
[283] Fear is a state of mind, what the accused contends was his state of mind. To determine whether the accused feared that he would be killed or seriously injured by the deceased, I must consider all of the evidence.
[284] In the present case, I have considered the evidence of the accused himself, and the evidence of the civilian witnesses (that I earlier reviewed) who gave evidence with respect to what happened just before the fight began. I have reviewed that evidence with respect to what the accused and the deceased did or did not do; how the accused and deceased did or did not do it; and what the accused and the deceased said or did not say. Any and all of these circumstances could potentially assist in deciding whether the accused was afraid that the deceased would kill or seriously injure him.
[285] The accused’s fear of death or serious injury must also be reasonable in the circumstances as the accused knew or honestly believed it to be. Would a reasonable person in those circumstances fear death or serious harm from the accused? A reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful, a person who has the same powers of self control that we expect our fellow citizens to exercise in society today. See Reilly v. The Queen, 1984 CanLII 83 (SCC), [1984] 2 S.C.R. 396.
[286] The danger that the accused was in, or honestly or reasonably believed he was in, does not have to be immediate. Immediacy, however, is a factor for me to consider in assessing the honesty and reasonableness of the accused’s belief. The issue involved in this question is not whether the accused was actually in danger of being killed or seriously injured by the deceased. The issue is whether the accused honestly and reasonably feared he was in that kind of danger. In that regard I note my earlier assessment of the accused’s testimony wherein I concluded that I did not believe his assertion that the deceased flashed a knife seconds before the deceased approached him. In that same connection, having disbelieved the accused on that point, I also disbelieve, on the totality of the evidence, that he honestly harboured a fear of the relevant danger or that such a fear would have been reasonable. Neither has the accused left me in doubt in either regard. See also paras. 297 to 307, infra, on a similar question.
[287] It is worth repeating that the accused’s is the sole version (which I repeat, I have rejected) according to which the deceased did anything that might give rise to a reasonable fear of the relevant danger.
[288] In respect of this question, I am satisfied beyond a reasonable doubt on the civilian witnesses’ evidence that I accept, that the accused did not honestly and reasonably fear that the deceased would kill or seriously injure him when he used the knife against the accused and that he was not acting in lawful self defence on the basis of s. 34.(2). Given that determination, it is not necessary for me to proceed to the next question. I will state, however, that had I been required to address the next question (pursuant to s. 34.(2)), I would have had no difficulty in concluding beyond a reasonable doubt, that based on the evidence, the accused did not and could not honestly and reasonably believe that he could only save himself from death or serious injury by killing or seriously injuring the accused.
[290] Section 35 of the Code reads as follows:
35. Self-defence in case of aggression - Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
[291] In some circumstances, a person who, without justification has assaulted another person or provoked another person to assault him, may use further force in lawful self defence.
[292] Such a person as described above, who defends himself in certain circumstances, may have acted lawfully and must be found not guilty. Again, as earlier stated, the accused does not have to prove that he was acting in lawful self defence on this basis. It is for the Crown to satisfy me beyond a reasonable doubt that the accused was not acting in lawful self defence.
[293] To decide whether the accused was acting in lawful self defence on the basis of s. 35 of the Code, I must address myself to the following five questions:
• Did the accused provoke the deceased to assault him without justification?
• Did the accused use further force against the deceased because he reasonably feared that the deceased would kill or seriously injure him?
• Did the accused honestly and reasonably believe that he needed to use further force to save himself from death or serious injury from the deceased?
• Did the accused try to kill or seriously injure the deceased before he needed to save himself from death or serious injury from the deceased?
• Did the accused decline further conflict and stop or retreat from it as much as feasible before he needed to save himself from death or serious injury from the deceased?
Did the accused provoke the deceased to assault the deceased with or without justification?
[294] One person may provoke another person by any conduct, including: blows, words, gestures or any combination of blows, words or gestures. Any of those things may indeed provoke an assault. See R. v. Nelson (1992), 1992 CanLII 2782 (ON CA), 71 C.C.C. (3d) 449 (Ont. C.A.).
[295] In answering this question, I have taken particular note of the evidence of the civilian witnesses who, for the most part, all described fairly antagonistic behaviour on the part of the accused at the deceased’s apartment. Most importantly, some of those witnesses specifically mentioned the accused’s comment “Fuck you and fuck your kid.”
[296] The above sort of comment by the accused and his general refusal to leave can be seen as having provoked the deceased’s initial application of physical force (punches to the nose). Accordingly, in answer to the above question, I am satisfied that the accused did provoke the deceased to assault him without justification. Accordingly, I must go on to the next question.
Did the accused use further force against the deceased because he reasonably feared that the deceased would kill or seriously injure him?
[297] This question relates to both the accused’s conduct and his state of mind.
[298] I must first consider whether the accused, after provoking the deceased to assault him without justification, used further force against the deceased. To decide this issue, I obviously will again be assisted by the civilian witnesses whose evidence I have determined I can rely upon.
[299] Based on the totality of the evidence, I have no difficulty concluding that the accused did in fact, once the assault commenced against him, use further force against the deceased. Most all of the civilian witnesses testified to the “exchange” of what appeared to be “blows”. In that connection, I will repeat my earlier finding (made with respect to the determination that the accused caused the death of the deceased by the infliction of stab wounds) that those blows observed by the civilian witnesses - even if they did not realize it as they observed them - actually involved the act of stabbing.
[300] The above question also requires me to consider not only the accused’s state of mind when he used further force (the stabbing) against the deceased, but also what a reasonable person would consider in the same circumstances. Did the accused fear that the deceased would kill or seriously injure him? Would a reasonable person have the same fear in the same circumstances?
[301] Fear is a state of mind, what the accused alleges was his state of mind. To determine whether the accused feared that he would be killed or seriously injured by the deceased, I must consider all of the evidence including what the accused and the deceased did or did not do, how they did or did not do it and what they said or did not say. I have already extensively reviewed the evidence of the civilian witnesses. I have also reviewed the evidence of the accused. In the case of both the civilian witnesses and the accused, I have already made comment, either generally or specifically, with respect to their reliability and credibility. Where necessary, I have also identified those portions of their testimony that I choose to accept or not accept.
[302] In that regard, even the accused’s own testimony does not directly contradict the generally clear evidence of the civilian witnesses who testified that when the deceased ran at him from across the room, he (the deceased) was not seen to be carrying a knife. At most, the accused’s own testimony (even had it been believed) suggests a close connection between the moment the deceased flashed the knife and the moment the deceased came at him. Importantly, the accused also testified as to not knowing where the knife was when the deceased crossed the room.
[303] I should note as well that the accused is the only witness who suggests that the knife he saw the deceased flash, was so displayed in such proximity to the attack. Any and all other evidence adduced at trial respecting the showing of a knife, either a discrete showing of the knife from behind the bar (to Cody Gross) with the accompanying words “self defence” and/or the display of the knife as the deceased pointed (with his arm stretched out) towards the apartment door, saying “Get the fuck out”, suggests a much greater period of time between the displaying of the knife and the commencement of the deceased’s first punch.
[304] Also in relation to the accused’s supposed fear, it can be noted that the vast majority of the witnesses testified that the accused stood up or was already standing by the time the deceased had reached him. This would suggest at least a brief period of time during which the accused seemed to have anticipated and perhaps even readied himself for the “rushing” assailant - who in almost every witness account, had nothing in his hands. Indeed, according to the specific evidence of Danny Pachkowski, the accused was already standing up (by the time the deceased approached) as if to say “What are you going to do about it?” Put simply, I do not believe that the accused had the fear that he expressed in his testimony.
[305] As I indicated earlier in my assessment of the accused’s testimony, I do not believe that the so-called “flashing of the knife” that the accused said occurred, happened as he suggested so proximate to the deceased’s approaching or rushing of him and the landing of the first punch. Not only do I not believe the accused in that regard, his evidence on that point did not leave me with a reasonable doubt.
[306] Even had I found that the accused honestly held the fear he expressed, the accused’s fear of death or serious injury must also be reasonable in the circumstances as the accused knew or honestly believed them to be. Would a reasonable person in those circumstances fear death or similar harm? A reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful, a person who has the same powers of self control that we expect our fellow citizens to exercise in society today. In my view, there is nothing in the evidence I have accepted and chosen to rely upon, that would cause me to conclude that when the deceased came at the accused with nothing in his hands (the deceased’s hands), a reasonable person in those same circumstances would have feared death or serious injury.
[307] Accordingly, I am satisfied beyond a reasonable doubt that the accused did not honestly and reasonably fear that the deceased would kill or seriously injure him when the accused used the further force (the stabbing with a knife) against the deceased. Having so concluded, it is not necessary to proceed to the remaining questions that arise from a s. 35 defence.
[308] Having concluded that neither s. 34.(2) or 35 of the Code have application to the present case such so as to render the accused’s assault with a weapon lawful, I will now proceed to consider what is the sole remaining self defence section which I have determined possesses an air of reality thereby requiring my consideration.
[309] Section 37 of the Code reads as follows:
37.(1) Preventing assault - Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Extent of justification - Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
[310] In the present case, the accused would be justified to use force to defend himself and must be acquitted if the following two conditions are present:
• that the accused used force to repel an assault or the repetition of assault (or what he reasonably perceived to be an assault) on him by the deceased; and
• the accused used no more force than was necessary to prevent the assault or its repetition.
[311] Unless the Crown proves beyond a reasonable doubt that at least one of these conditions for self defence was absent, I must acquit the accused. As has already been stated, the accused is not required to prove that he acted in self defence. The Crown must prove beyond a reasonable doubt that he did not.
[312] To decide whether the Crown has proved beyond a reasonable doubt that the accused did not act in self defence when he applied the force in question to the deceased, I must consider the following questions:
1. Has the Crown proved beyond a reasonable doubt that the deceased did not assault the accused or that the accused did not reasonably believe that the deceased assaulted him?
2. Has the Crown proved beyond a reasonable doubt that the accused used more force than was necessary to prevent the assault or the repetition?
[313] If I find that the answer to one or more of these questions is “yes”, the defence of self defence (under s. 37) fails. If I find that the answers to both questions is “no”, the conditions for self defence are present and I must acquit the accused of second degree murder.
[314] Let me now address each of these two questions.
[315] First, has the Crown proved beyond a reasonable doubt that the deceased did not assault the accused or that the accused did not reasonably believe that the deceased assaulted him?
[316] Based on my previously stated determinations, in approaching the accused as he did (after coming around the bar and moving across the living room) and in throwing the first punch, the deceased assaulted the accused. I say that notwithstanding the provocative words used by the accused which may have precipitated the deceased’s actions.
[317] I have no difficulty concluding that the Crown has not proven beyond a reasonable doubt that the deceased did not assault the accused. Accordingly, I must move to the second question.
[318] The second question requires me to address whether the Crown has proved beyond a reasonable doubt that the accused used more force than was necessary to prevent the assault or its repetition.
[319] It is important when I address this question, to consider the amount of the force used, not just its consequences (the deceased’s death). In this instance, the evidence reveals there are some 22 “sharp force” injuries to the deceased’s upper body.
[320] A person is not justified in using more force than necessary to defend himself or herself. Self defence does not justify the willful infliction of hurt or injury that is excessive, having regard to the nature of the original assault. In noting that, I remain mindful that a person cannot be expected to measure precisely the exact amount of force necessary. A person does not usually have time for calm or measured reflection while being assaulted and might make a reasonable mistake about the amount of force necessary.
[321] When answering the above question, I obviously must take into account the accused’s perception of the events at the time and ask myself whether a reasonable person in the circumstances would consider the force used necessary.
[322] I have already indicated that I do not accept that part of the accused’s testimony wherein he alleges that the deceased flashed the knife seconds before the deceased crossed the living room (and approached the accused). Neither do I have a reasonable doubt on that point. In fact, I have already found that based on the evidence of those civilian witnesses in a position to see and upon whom I have chosen to rely, any occasions on which the deceased would have displayed a knife, occurred well before the moment the deceased moved across the room and began punching the accused. I note as well, that the civilian witnesses whose evidence I do accept, all state that at no point in time did they see a knife in the hands of the deceased just before or as he was moving across to begin his altercation with the accused. Neither did they see a knife at any point in time in the deceased’s hands during this fight with the accused. Moreover, although I have discounted much of the accused’s evidence as incredible, even in the accused’s own version, he acknowledges that after seeing the deceased flash the knife, he “does not know where the knife was when the deceased crossed the room”. In other words, he was not sure if the accused had the knife or not.
[323] If I consider the totality of the above evidence and specifically, the evidence which I have chosen to accept and rely upon, I have no difficulty concluding that the Crown has proved beyond a reasonable doubt that the 22 “sharp force” injuries inflicted upon the deceased by the accused, constitutes more force than was necessary to prevent the assault or its repetition. Having so concluded, the defence of self defence (under s. 37) fails.
[324] Having determined the inapplicability of any of the potential self defence provisions (i.e. the Crown has proven beyond a reasonable doubt that the accused did not act in self defence such so as to render the application of force with a knife a lawful act), I will now resume my consideration of the other questions which constitute the determinations necessary in order to decide whether the Crown has established the offence of assault with a weapon (the unlawful act that caused the deceased’s death) beyond a reasonable doubt. As will be apparent, those remaining questions, on the basis of the evidence that I have accepted, can be answered succinctly and without difficulty. Following that, I will return to the final two issues as they relate to the charge of second degree murder: the requisite state of mind and provocation.
Did the deceased consent to the force that the accused applied?
[325] Consent involves the deceased’s state of mind. To consent, the deceased has to know what the accused is going to do and voluntarily decide to let the accused do it. A voluntary decision is one that the deceased would have made of his or her free will, it is not a decision that he would have made because of the influence of force, threat, fear, fraud or abuse of authority.
[326] Because consent involves the deceased’s state of mind, I have to consider all of the circumstances surrounding what the accused did to decide whether the deceased consented to it. I must take into account the nature of what happened between the accused and the deceased, any words or gestures that may have accompanied it (including any alleged threats) and anything else that might indicate to me the deceased’s state of mind at the time of the events.
[327] I have already explained my findings and previous determinations as to when the deceased would have himself, shown the knife that he had behind the bar. Similarly, there is no evidence from any of the civilian witnesses, that would suggest the deceased would have seen or known about the knife (Exhibit 4) which I have found was possessed and ultimately used by the accused. In other words, the deceased had no reason to believe he was entering into a consensual knife fight nor can it properly be inferred that he, or frankly anyone else, would consent to the sort of application of force that took place in the present case (i.e. 22 wounds inflicted to the deceased’s upper body). Accordingly, I am satisfied beyond a reasonable doubt that the deceased did not consent to the force that the accused applied and I must therefore, go on to the next question.
Did the accused know that the deceased did not consent to the force that the accused applied?
[328] This element involves knowledge, a state of mind, the accused’s state of mind. The Crown must prove beyond a reasonable doubt that the accused knew that the deceased did not consent to the application of force (the stabbing) that the accused applied. To “know” something is to be aware of it, at the time you did it.
[329] The accused’s knowledge that the deceased did not consent is proven if I am satisfied beyond a reasonable doubt that the accused was actually aware (or willfully blind to and/or reckless) as to the fact that the deceased did not consent to the force that the accused applied.
[330] To determine the accused’s state of mind - what he knew about the deceased’s consent or lack of it - I must consider all of the evidence. Based upon my rejection of the accused’s testimony respecting what happened just before the deceased moved from behind the bar and crossed the living room (to the accused) and given the evidence that I have chosen to accept and rely upon, which provided no basis for concluding that the deceased himself carried a knife into the fight, it cannot reasonably be argued that the accused did not know that the deceased did not consent to the application of force which in this case consisted of some 22 stab wounds to the deceased’s upper body. Put simply, I am satisfied beyond a reasonable doubt that the accused knew that the deceased did not consent to the type of force (the stabbing) that the accused applied.
Was a weapon involved in the accused’s assault of the deceased?
[331] On the basis of the evidence, I have already found that the “sharp force” injuries found on the upper body of the deceased were stab wounds caused by the accused who possessed and used the knife (Exhibit 4) which in the present case, constitutes a “weapon” for the purposes of the offence of assault with a weapon.
[332] Having concluded that the Crown has established beyond a reasonable doubt the elements that constitute the alleged unlawful act, the assault with a weapon, I return to and resume my consideration of the remaining issues involved in my determination respecting whether the accused can be convicted as charged of the second degree murder alleged in the indictment.
III. DID THE ACCUSED HAVE THE STATE OF MIND REQUIRED FOR MURDER?
[333] The crime of murder requires proof of a particular state of mind. For unlawful killing to be murder, Crown counsel must prove that the accused meant either to kill the deceased or meant to cause the deceased bodily harm that the accused knew was likely to kill the deceased, and was reckless whether the deceased died or not. The phrase “was reckless whether the deceased died or not” means that the accused saw the risk the deceased could die from the injury or injuries caused by the stabbing, but went ahead anyway and took the chance.
[334] Either of the above states of mind is sufficient for second degree murder if proven beyond a reasonable doubt. The two states of mind are alternatives. The Crown does not have to prove both. One is enough. What is required is that one of the states of mind be proven beyond a reasonable doubt. For ease of reference, I may use the phrase “the state of mind for murder” rather than repeating the two alternative states of mind that I have already mentioned. In so doing, it should be assumed that I am referring to the two states of mind that I just set out and that the Crown need only prove one of them.
[335] If the accused did not mean to do either, in other words, if he had neither state of mind, then the accused committed manslaughter.
[336] To determine the accused’s state of mind, I must, as a trier of fact in this case, consider all of the evidence including:
• what he did or did not do;
• how he did or did not do it; and
• what he said or did not say.
[337] I must look at the accused’s words and conduct before, at the time and after the unlawful act that caused the deceased’s death. All these things, and the circumstances in which they happen, may shed light on the accused’s state of mind at the time he caused the deceased’s death. They may help me decide what he meant or did not mean to do.
[338] In this case there is evidence respecting the accused’s consumption of alcohol. That evidence comes not only from the accused himself (see paras. 213 to 217, supra), the observations and descriptions of the civilian witnesses who had contact with the accused, but also the evidence contained in Exhibit 7 (a report prepared by Rachelle Booker of the R.C.M.P. Lab filed by the Crown with the consent of the defence). Specifically, the opinion provided in Exhibit 7 stipulates that based upon a brief history received for the purposes of the blood alcohol concentration estimate, and based upon the assumption that drinking concluded at 2:00 a.m. (or earlier) and that the blood alcohol level at 5:05 a.m. was 158 to 179 mg. %, the blood alcohol concentration at approximately 3:00 on the morning in question would have been between 179 and 221 mg. %. I note that Exhibit 7 further stipulated that if the incident had occurred earlier in time, the resulting estimate would be higher, considering similar parameters. For example, if the incident had occurred at 2:30 a.m., the estimate would be higher by 5 to 10 mg. %.
[339] Given the existing evidence with respect to the accused’s consumption of alcohol, it is still for me to determine what, if any, effect it had on his state of mind. In considering the effect of what I find was the accused’s use of alcohol on his state of mind, I must remember that the intoxicating effect of alcohol is well known. Nonetheless, even if intoxication causes a person to cast off restraint and act in a manner which he or she would not have acted if sober, it provides no excuse for the commission of an offence where, notwithstanding a level of intoxication, the person had the requisite state of mind or intent. A drunken intent is nonetheless an intent. However, the offence of second degree murder is not committed if the accused lacked the necessary intent.
[340] It should not be assumed that intent involves advanced planning. When I refer to the necessary intent or when I use the words “meant to cause death” or “meant to cause bodily harm”, I do not mean to suggest that there need be advanced planning. To repeat, for second degree murder, the Crown must prove the accused either:
(a) intended or meant to kill the deceased; or
(b) intended or meant to cause bodily harm to the deceased that the accused knew was likely to kill the deceased and was reckless whether the deceased died or not.
[341] The second state of mind has three parts, and each must be proven beyond a reasonable doubt to prove the second state of mind:
(a) that the accused meant to cause bodily harm;
(b) that the accused knew that the bodily harm was likely to kill the deceased; and
(c) that the accused was reckless whether the deceased died or not.
[342] As I earlier said, the phrase “was reckless whether the deceased died or not” means that the deceased saw the risk that the accused could die from the injury or injuries caused by a stabbing, but went ahead anyway and took the chance.
[343] In its seminal case R. v. Daley, 2007 SCC 53 (CanLII), [2007] 3 S.C.R. 523, the Supreme Court of Canada noted the following at paras. 41 and 42:
41 Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call "mild" intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. See Daviault, at p. 99. Second, there is what we might call "advanced" intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused's foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials:
In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim. For example, consider the case where an accused and another individual engage in a fight outside a bar. During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person. In that type of a case, the jury will likely struggle, assuming they reject any self-defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. [para. 49]
A defence based on this level of intoxication applies only to specific intent offences.
42 It is important to recognize that the extent of intoxication required to advance a successful intoxication defence of this type may vary, depending on the type of offence involved. This was recognized by this Court in Robinson, at para. 52, in regards to some types of homicides:
[I]n cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course that there is an "air of reality" to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of jurors. For example, in a case where an accused points a shotgun within a few inches of someone's head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill.
Although I would hesitate to use the language of capacity to form intent, for fear that this may detract from the ultimate issue (namely, actual intent), the point of this passage, it seems to me, is that, for certain types of homicides, where death is the obvious consequence of the accused's act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of this type. [Emphasis added.]
[344] The Supreme Court also went on to state the following at para. 85 of Daley, supra:
85 It is questionable whether loss of the capacity to form judgments and judge the appropriateness of one's action equates with loss of the ability to foresee the consequences of one's actions. As discussed at para. 42 dealing with the Robinson case, it is hard to accept that a person, here stabbing someone in the side, would not be able to realize such an action could kill. Expert evidence that the intoxication was such that one could not judge the appropriateness of one's actions can hardly be equated to evidence of intoxication sufficient to establish the incapacity alleged to have existed here. This is the problem I see with the interpretation given to the evidence of the expert by Smith J.A. [Emphasis added.]
[345] In the present case, I have considered and accepted the evidence of what the accused himself said he consumed. I have taken into account Exhibit 7 and the blood alcohol level discussed therein. I have also noted that in the accused’s testimony he claimed to be unable to remember certain portions of the night and morning in question. For the reasons I have already given, I do not believe the accused when he stated that he was unable to remember most of what he testified to not being able to remember. So, although I accept that a person’s stated inability to remember portions of an event may indeed constitute one of the factors that could shed light on an accused’s impairment (and its effect on the state of mind at the time of killing), such evidence (about inability to recall or amnesia) has to be accepted as credible (which in the present case I do not) in order for it to form part of that potentially useable evidentiary foundation. In the present case, I do not accept that portion of the accused’s testimony and neither does it raise a reasonable doubt respecting his state of mind.
[346] Before proceeding further, I again remind myself that if after taking into account the evidence of the accused’s consumption of alcohol, along with all of the other evidence and facts which throw light on his intent or state of mind, I am left with a reasonable doubt as to whether he had the required state of mind or intent, I must find him not guilty of second degree murder but guilty of manslaughter. If, on the other hand, notwithstanding the accused’s evidence of his consumption of alcohol, and after having considered all of the evidence and facts that throw light on his intent or state of mind, I am satisfied beyond a reasonable doubt that at the time he unlawfully caused the death of the deceased the accused did have the required state of mind, then I must find the accused guilty as charged.
[347] Determining a person’s state of mind can be difficult in that triers of fact do not have an opportunity to see inside a person’s head at the moment in question. Nonetheless, inferences or conclusions may sometimes be used to determine a person’s state of mind. For example, a trier of fact may infer or conclude, as a matter of common sense, that if a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences. However, I remind myself that that is simply one way to determine a person’s actual state of mind - what he or she actually intended or meant to do. That common sense conclusion may only be reached after considering all of the evidence. It is not a conclusion that must be reached.
[348] In determining whether, in all the circumstances, it is appropriate to draw the conclusion that the accused intended the natural consequences of the stabbing of the deceased, I must take into account all of the evidence, including the evidence that the accused may have been in an impaired or reduced mental condition at the time of the killing. That evidence may, of course, rebut that common sense inference or conclusion, or it might not, it is for me as the trier of fact, to decide. If, after a consideration of all of the evidence, I am left with a reasonable doubt as to whether or not it is appropriate to conclude that the accused intended the natural consequences of his stabbing the deceased, then I must not so conclude.
[349] In my review of all of the evidence, I note that there are many examples in the testimony of the civilian witnesses to demonstrate that they in effect adopted (usually on cross-examination) their previous police statements or preliminary inquiry evidence wherein they characterized the accused as being in some level of intoxication. Indeed, for the purposes of my consideration of the accused’s state of mind, I have determined - based in part on those adoptions by the civilian witnesses and their observations and descriptions generally - that the accused was intoxicated at the time he caused the death of the deceased. I also find that that intoxication manifested in amongst other things, his antagonistic and provocative behaviour with the deceased and others. I further find that the possible range of the blood alcohol readings (as discussed in Exhibit 7) reflected that impairment.
[350] Having made the above finding, there remains one critical question. Notwithstanding the fact that the accused can be characterized as impaired or intoxicated at the time in question, was that level of impairment or intoxication advanced to the point “… where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea.”? See Daley, at para. 41. To answer that question, I have examined all of the evidence but in particular, that evidence respecting what the accused did shortly before, during and after his fight with the deceased.
[351] Upon his arrival at the deceased’s apartment, there is evidence to suggest that the accused was able to walk and talk in a functioning way. His speech was apparently fluid and responsive enough so as to permit him to engage (however provocatively and belligerently) with the deceased.
[352] During the physical altercation between the deceased and the accused, the accused would have stabbed the deceased at least 22 times. Frankly, it is difficult to conceive how an individual inflicting so many stab wounds in the areas in which they were inflicted, would not have the foresight with respect to the consequences of such an act. Arguably, the fact of the 22 stab wounds alone constitutes the strongest evidence that the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death or serious bodily harm. Put simply, I do not accept that the accused was so intoxicated that he could not foresee that stabbing the deceased 22 times would result in his death. Separate and apart from the evidence of the 22 stab wounds, however powerful, there is additional evidence from which I find support for my conclusion.
[353] Immediately after the deceased fell to the ground and someone yelled “He’s got a knife” and suggested “Don’t let him leave”, the accused appeared to have the presence of mind, to try to leave a situation which was, at that point, quite hostile. Such hostility is supported by the fact that after the deceased fell to the ground, the accused was hit with a thrown beer bottle and hit over the head with a stool.
[354] Although the accused was not able to successfully leave the apartment (before being tackled and severely beaten), his attempt to so leave was a coherent and lucid reaction to the hostility he was facing. Even after his severe beating in the doorway of the apartment, he managed to escape from the headlock and proceed purposefully down the hallway. When Tylene Zeuch attempted to hold shut the doors from which the accused wanted to exit that particular wing of the apartment block, the accused acted with sufficient purpose and strength so as to force those doors open. After opening the doors, he continued to pursue his exit from the apartment block.
[355] When the male standing outside the apartment block (who I find as a fact was the accused) noticed the arrival of Constable Langrell, he again reacted in a way that was logical and coherent to what could be inferred was his fear and worry.
[356] I wish to be clear, that in respect of the accused’s actions after his fight with the deceased, I am not invoking or relying upon such behaviour (as is mentioned above) as circumstantial evidence of consciousness of guilt or flight. Indeed, any such use of that behaviour might be inappropriate as the accused’s actions may very well be open to an interpretation inconsistent with consciousness of guilt, and instead, an interpretation more consistent with something as simple and innocent as fear and a desire to escape a hostile situation. It is for that very reason, that examining that behaviour becomes helpful with respect to the issue of state of mind, in that the accused’s conduct, as earlier suggested, can be seen as rational, logical and coherently reactive to any perceived fears the accused may have had.
[357] After the accused ran behind the apartment block, he proceeded to cover the approximately 1.4 kilometer distance to his residence on Bernadine. There, based on the evidence of the relevant police officers respecting what was observed in the basement area, I have inferred that the accused would have taken a shower and attempted at least a partial change of clothing. Again, those actions seem lucid and logically reactive to the situation and fears he may have had. They are actions which shed light on the extent of the accused’s intoxication and on his state of mind.
[358] The accused was observed in the backyard of his residence and told to stop. While he did momentarily stop, he quickly proceeded to jump over a fence and without apparent difficulty, successfully evaded the pursuing police without ever slipping and falling.
[359] As part of my analysis, I have noted the general viva voce comment of Dr. Littman that the presence of pain respecting someone who has already consumed alcohol, could increase that person’s impairment. I note as well, however, that any injuries suffered by the accused were suffered concurrently with the fight (or afterward in the apartment doorway), a fight that did not stop until the collapse of the deceased.
[360] I have also taken into account the evidence from Constable Hornung respecting those periods of time (at the hospital or police station) where the accused may have fallen asleep or “passed out” as an additional factor relating to the accused’s state of mind. There is nothing in that evidence or the fact of that evidence, when considered alone or with any of the other evidence, that would cause me to have a reasonable doubt with respect to the foresight that the accused would have had that the stabbing of the deceased 22 times would result in death or serious bodily harm.
[361] In the end, I have examined all of the evidence of intoxication along with all of the other evidence, and I have concluded that I am not left with a reasonable doubt as to whether the accused had the requisite state of mind at the time of the act. I have come to that conclusion having remained mindful that the accused is not required to prove that he lacked the required intent. Still, with that caution in mind, I have concluded that the Crown has indeed proven beyond a reasonable doubt that the accused had the requisite state of mind despite the accused’s consumption of alcohol and some of the witnesses’ characterizations of him as being drunk and the range of possible blood alcohol readings.
[362] Before leaving the issue of the accused’s state of mind, I would be remiss if, based on all of the evidence that I have reviewed, I did not instruct myself pursuant to what has become known as the “rolled up instruction” which flows from a series of cases including R. v. Nealy (1986), 1986 CanLII 4694 (ON CA), 30 C.C.C. (3d) 460 (Ont. C.A.); R. v. Settee (1990), 1990 CanLII 7771 (SK CA), 55 C.C.C. (3d) 431 (Sask. C.A.); and R. v. Robinson (1996), 1996 CanLII 233 (SCC), 105 C.C.C. (3d) 97, at p. 121 (S.C.C.). See also Watt’s Manual of Criminal Jury Instruction, David Watt, 2005 Thomson Canada Limited, page 825, footnotes 1 through 4.
[363] Watt J.A. stated at p. 825 (footnote 2) in his manual:
[The rolled up instruction], which tries to ensure that jurors consider the cumulative effect of all of the evidence rather than view it in watertight compartments, should be given to the jury only after any defences that, if successful, would negate the unlawful character of D’s conduct, and after any specific defences, such as intoxication, which relate to the mental element in murder. …
[364] Accordingly, even if I am satisfied beyond a reasonable doubt that when he caused the deceased’s death, the accused was not acting in lawful self defence or in a state of advanced intoxication (such so as to negate the requisite state of mind), in deciding whether the accused had either state of mind required to make the unlawful killing of the deceased murder, I must also consider the evidence suggestive of what might be the accused’s combined anger, fear, intoxication and possible instinctive reaction. In this regard, I note the accused’s escalating belligerence and anger towards the deceased upon arriving at the apartment, the already mentioned evidence of the accused’s impairment and intoxication, the evidence the accused gave with respect to his fear that he was going to die (when the deceased moved toward him) and the rapidity with which the events unfolded after the deceased approached the accused and began the fight.
[365] I must consider the above evidence, not just by itself on any particular issue to which it relates, but altogether, along with any other evidence that might suggest that the accused acted instinctively, in the sudden excitement of the moment, without thinking about the consequences of what he did and without either state of mind necessary to make the unlawful killing of the deceased murder.
[366] This evidence does not necessarily mean that the accused did not have either mental state necessary to make the unlawful killing of the deceased murder. The fact that the accused may have consumed alcohol, been angry, afraid and excited is not necessarily inconsistent with either state of mind required to make an unlawful killing murder. As a matter of fact, evidence of some of these states or conditions may actually give rise to one or other of the states of mind required to make an unlawful killing murder.
[367] Take for example, anger, even intense anger. Feeling angry at someone or about something, may cause a person to have one of the states of mind necessary for murder. As a result, and apart altogether from what I will later comment and discuss in relation to provocation, the accused’s anger, on its own, is not enough to reduce murder to manslaughter. On the other hand, when considered along with the other evidence that I have described, evidence of anger may raise a reasonable doubt whether, when he unlawfully killed the deceased, the accused had either state of mind required for murder.
[368] I have thus considered the effect of all of the evidence, the sum total of it, along with any other evidence that seems or tends to show the accused’s state of mind as it relates to the issue of whether the Crown has proven beyond a reasonable doubt that the accused’s unlawful killing of the deceased was murder.
[369] Having considered the cumulative effect of the evidence in the context of the “rolled up instruction”, I am nonetheless satisfied that the Crown has proven beyond a reasonable doubt that the accused had one or other of the states of mind required to make his or her unlawful killing of the deceased murder.
[370] Having determined that the essential elements of second degree murder have been proven by the Crown beyond a reasonable doubt, there remains one question which I must still address, the consideration of which, might as a consequence result in a conviction not for second degree murder, but manslaughter.
IV. WAS THE ACCUSED PROVOKED?
[371] Again, based upon the accused’s evidence alone, which, for the purpose of the threshold issue (the existence of an air of reality) I assume to be true, I have determined (pursuant to Cinous) that there does exist an air of reality such so as to require my consideration of the defence of provocation.
232. Murder reduced to manslaughter - (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) What is provocation - A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.
(3) Questions of fact - For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.
…
[373] A killing that would otherwise be murder is reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. However, s. 232 does not excuse those who lose control and kill; it excuses those who have been deprived of the power of self control. See R v. Gibson (2001), 2001 BCCA 297 (CanLII), 41 C.R. (5th) 213 (B.C.C.A.).
[374] An accused must be acquitted of murder, but found guilty of manslaughter on the basis of provocation, only if all of the following four conditions are present:
1. there was a wrongful act or insult that was sufficient to deprive an ordinary person of the power of self control;
2. when the accused killed the deceased, he had lost the power of self control as a result of the wrongful act or insult;
3. the wrongful act or insult was sudden; and
4. the accused’s acts that caused the deceased’s death were committed suddenly and before there was time for his passion to cool.
[375] Unless the Crown proves beyond a reasonable doubt that at least one of these conditions for provocation was absent, I must acquit the accused of murder but find him guilty of manslaughter. The accused is not required to prove that the defence of provocation applies. It is the Crown who must prove beyond a reasonable doubt that it does not.
[376] To decide whether the Crown has proved beyond a reasonable doubt that the defence of provocation does not apply, I will have to consider four questions:
1. Has the Crown proved beyond a reasonable doubt that there was no wrongful act or insult sufficient to deprive an ordinary person of the power of self control?
2. Has the Crown proved beyond a reasonable doubt that when the accused killed the deceased, he had lost the power of self control as a result of the wrongful act or insult?
3. Has the Crown proved beyond a reasonable doubt that the wrongful act or insult was not sudden?
4. Has the Crown proved beyond a reasonable doubt that the accused did not act suddenly and before there was time for his passion to cool?
[377] If I answer “yes” to one or more of these questions, the defence of provocation fails. If I answer “no” to all four questions, then the conditions for provocation are present and I must acquit the accused of murder and instead, find him guilty of manslaughter.
Has the Crown proved beyond a reasonable doubt that there was no wrongful act or insult sufficient to deprive an ordinary person of the power of self control?
[378] A wrongful act is an act that is contrary to law in the circumstances in which it occurred. A wrongful act can also be conduct that is wrong according to the ordinary moral standards of reasonable members of society.
[379] An insult is injuriously contemptuous speech or behaviour, a scornful utterance, an action intended to insult another persons self respect, an affront to one’s dignity.
[380] I have already concluded and explained that the deceased’s initial application of force as against the accused after he had moved across the living room, does constitute an assault - in other words, an unlawful or wrongful act. The question that remains, however, is whether that particular wrongful act was sufficient to deprive an ordinary person of the power of self control.
[381] This question concerns the ordinary person’s reaction to the wrongful act in question. In answering this question, I must not consider any factors or features that are peculiar or unique to the accused, for example, temperament, attitude or lack of sobriety.
[382] In this case, an ordinary person would be someone of the same age and sex as the accused, who shares with him those other characteristics that would give the wrongful act a special significance in the circumstances. The ordinary person would also be one who has experienced the same series of acts or insults as the accused and shares the same past history and relationship between the accused and the deceased (to the extent that such a relationship has been explained in or is discernable on the evidence). See R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37.
[383] An ordinary person is someone who is not exceptionally excitable, or combative or disposed to fight and has and exercises those powers of self control that all of us expect our fellow citizens to exercise in our current society. I repeat, an ordinary person is not someone who is in a state of intoxication.
[384] The question that I must answer concerning the ordinary person is whether that ordinary person, with the characteristics I have described, would lose his self control because of the deceased’s initial assault of him. The question is not whether the ordinary person would have reacted by killing the deceased or, more specific to the present case, the question is not whether the ordinary person would have lost his or her self control and ended up doing up exactly what the accused did (inflicting 22 stab wounds).
[385] Prior to addressing this question, I have re-examined the testimony of the civilian witnesses with respect to the details of the verbal argument and the respective actions of both the deceased and the accused leading up to the initial application of force by the deceased. Keeping in mind that I have already rejected the accused’s version of what he said occurred seconds before being approached by the deceased and given that that version does not leave me with a reasonable doubt, I am left with evidence (coming from the civilian witnesses that I accept) of an assault, which even in the context of the original and heated argument that was taking place between the deceased and the accused, was not a wrongful act which would cause an ordinary person to lose his power of self control.
[386] Given that I have determined the Crown has proved beyond a reasonable doubt that there was no wrongful act sufficient to deprive an ordinary person of the power of self control, the defence of provocation fails. It is thus not necessary to consider the remaining questions.
CONCLUSION
[387] For the foregoing reasons, I have come to the following determinations with respect to the issues that I earlier identified:
1. the Crown has established beyond a reasonable doubt that the accused caused the deceased’s death;
2. the Crown has established beyond a reasonable doubt that the accused caused the deceased’s death unlawfully;
3. the Crown has established beyond a reasonable doubt that the accused possessed the requisite state of mind for murder;
4. the Crown has established beyond a reasonable doubt that the accused was not provoked.
[388] Accordingly, based on those determinations, I find the accused guilty of the second degree murder of the deceased.
_____________________________ A.C.J.Q.B.
Date: 20101103
Docket: CR 07-01-28036
(Winnipeg Centre)
Indexed as: R. v. Cassan
Cited as: 2010 MBQB 241
COURT OF QUEEN'S BENCH OF MANITOBA
BETWEEN: | ) | APPEARANCES: |
| ) |
|
| ) | Brian Bell |
| ) | and Sheila Seesahai |
HER MAJESTY THE QUEEN, | ) | for the Crown |
| ) |
|
- and - | ) | Saul Simmonds |
| ) | and Shannon Benevides |
ERIK RYAN CASSAN, | ) | for the Accused |
| ) |
|
Accused. | ) | Judgment delivered: |
| ) | November 3, 2010 |
JOYAL, A.C.J.Q.B.
E R R A T U M
Please note that I have made the following changes to the judgment delivered in this matter on November 3, 2010:
1. Page 12, paragraph 29 – A comma is inserted following the word “which” in the sentence which now reads, in part: “Nonetheless, the specific witnesses whose evidence I have reviewed in more detail, all provided testimony which, potentially, is of particular importance….”
2. Page 13, paragraph 32 – A comma is inserted following the word “differences” in the sentence which now reads, in part: “To the extent that there are differences, I will, as earlier stated….”
3. Page 15, paragraph 36 – Parentheses are inserted around the words “or their testimony” and the word “which” is changed to “who”. The sentence now reads, in part: “… they do not have a determinative impact on those witnesses (or their testimony) who I have found were otherwise credible and reliable.”
4. Page 65, paragraph 242 – The word “ability” is changed to “inability”.
5. Page 66, paragraph 245 – The words “the deceased’s approaching of him” are changed to “the deceased approached him”.
6. Page 73, paragraph 264 – The words “both that” are changed to “that both” in the sentence which now reads, in part: “… there can be little doubt that both individuals were involved in a fight….”
7. Page 73, paragraph 265 – The word “that” is inserted following “i.e.” and the word “leaving” is changed to “leaves” in the sentence which now reads, in part: “If such were to be the conclusion of this court (i.e. that the application of any of the relevant self defence provisions leaves the court with a reasonable doubt….”
8. Page 76, paragraph 273 – The words “might be drawn” are changed to “might have been drawn”.
9. Page 86, paragraph 306 – The word “I” is changed to “in” in the sentence which now reads, in part: “… when the deceased came at the accused with nothing in his hands….”
10. Page 101, paragraph 349 – The words “is ample evidence” are changed to “are many examples”.
11. Page 104, paragraph 357 – A comma and the words “I have” are inserted following “in the basement area” in the sentence which now reads, in part: “There, based on the evidence of the relevant police officers respecting what was observed in the basement area, I have inferred that the accused….”
Please replace pages 12, 13, 15, 65, 66, 73, 76, 86, 101 and 104 of the judgment with the attached pages, as amended.
DATED this 8th day of November, 2010.
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