R v Laczo, 2016 ABQB 100

Court of Queen ’ s Bench of Alberta Citation: R v Laczo, 2016 ABQB 100 Date: 20160218 Docket: 130468366Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Brant Dallas Laczo Accused _______________________________________________________ Oral Reasons for Judgment of the Honourable Mr. Justice A. W.

Germain _______________________________________________________ I Introduction [ 1 ] Brant Dallas Laczo, faces a single charge that on or about the fifth day of January 2013, at or near Redwater, Alberta, did endanger the life of James Michael Anderson, thereby committing an aggravated assault, contrary to section 268 (1) of the Criminal Code of Canada . [ 2 ] The background facts are not greatly in dispute.

So I start there to provide some context to the position of the Crown and the defence. [ 3 ] On January 5, 2013 James Michael Anderson was working as a Ferrier and general ranch hand on a horse training facility near Redwater, Alberta (The Redwater ranch). He was provided accommodation in a suite upstairs in the barn. His neighbor, occupying

the other upstairs unit, was jockey Richard Mangalee. Another individual, Victoria Anderson (no relation-to James Michael Anderson) also worked at the ranch breaking horses and doing ranch hand work. She and her daughter were also provided accommodation, a one bedroom half-duplex, about 200 feet from the barn. The occupant of the other half of the duplex was Mounri (Mike) Halabi, another ranch hand. [ 4 ] Prior to coming to the Redwater ranch, Victoria Anderson was in a relationship with and living with the accused, on his ranch near Winfield. That relationship soured, so Ms.

Anderson took the job at the Redwater ranch in the summer of 2012. After coming to the ranch, Victoria Anderson formed a relationship with James Anderson, which was growing in strength in the fall of 2012. Mr. Laczo was hurt by the end of his relationship to Victoria Anderson, and was exhibiting irrational conduct, and expressing anger about the end of the relationship with Victoria Anderson. [ 5 ] There were several events in December, 2012 that make it beyond dispute that Mr. Laczo was disturbed by, acting irrationally, and manifesting jealousy, about the breakdown of his relationship with Ms.

Victoria Anderson. I identify three of these at this time. [ 6 ] First, on December 12, 2012, Mr. Laczo came to the ranch and was asking other ranch hands such as Mr. Mangalee what the sleeping and living arrangements were for resident ranch hands and who was hanging around Ms. Anderson. Mr. Laczo went out with her on that occasion and admits in his police statement he was told the relationship was over. Although he was allowed to spend the night in Ms.

Anderson’s apartment, he slept on the couch. [ 7 ] Second, later in December, the owner of the adjacent ranch spotted a man on his driveway in a pickup truck that appeared to be conducting surveillance on the ranch where Victoria Anderson and James Anderson worked. He approached that man and had a conversation with him. He felt the man was embarrassed and was not making eye contact. The man conducting surveillance was the accused. Police later conducted a proper and independent police lineup.

The neighbor was able to identify the accused as the individual who was watching the ranch where both Andersons were employed. [ 8 ] The accused indicated to the neighbor that he was a private investigator investigating the conduct of a woman identified as Vicki. This conduct of spying on an ex-girlfriend in late December is most ominous. Whether the same day or another, there is cell phone activity on Mr. Laczo’s phone that routed through a Redwater cell phone tower on December 19, 2012. [ 9 ] Third, Ms. Victoria Anderson received some aggressive calls from Mr.

Laczo, which went to answer and call record on December 22 and 23, 2012. Mr. Laczo lashed out at her for the way in which she had ended the relationship, but more importantly, they became more edgy and threatening that he would cause trouble for Ms. Anderson with her child’s father. The calls implied that she was prejudicing her relationship with her child by either her sexual conduct or that Mr. Anderson had some type of sexual predator perversion. These calls were repetitive and show an escalating mental agitation on the part of Mr.

Laczo. [ 10 ] On a horse ranch, work goes on every day of the year, but many of the hands got some part of the weekend as time off. Mr. James Anderson, Mr. Halabi, and Mr. Mangalee were all off work on Friday night, January 4, 2013. Mr. Mike Halabi hosted a small barbecue for the three of them at his premise adjacent to Victoria Anderson’s residence. Ms. Victoria Anderson was not on the ranch at that time. She had gone to British Columbia to pick up her daughter at the end of the daughters Christmas access time with the child’s father. [ 11 ] Around 10:30 PM in the evening, Mr.

Anderson left the barbecue, walked next door to Victoria Anderson’s apartment. He knew that she was away in British Columbia, but intended with her previous consent to look after her pet animals. He was not seen again by anyone until two days later at 7:30 AM Sunday morning, when he showed up in the coffee room of the ranch. At that time, he was observed to be in physical and mental distress. The last person identified as seeing Mr. Anderson before his injury was the host of the barbecue, Mike Halabi, who confirmed that Mr.

Anderson had consumed a significant amount of alcohol before leaving the barbecue. [ 12 ] Between 10:30 PM on Friday, January 4, 2013 and 7:30 AM on Sunday, January 6, 2013, James Anderson was severely beaten, probably with a weapon. The cuts are long and narrow and curve around the skull. James Anderson had a compressed skull, several lengthy and troubling cuts on his head, a black eye, blood oozing from his nose, slurred speech, and a loss of motor control on the right side of his body.

When his coworkers observed him at 7:30 AM on Sunday morning, January 6, they could tell, even though he was not prepared to admit it, that he was badly injured. One of them drove him to the hospital where he was later transported to Edmonton for extensive surgery and perhaps a medically induced coma until his brain could recover from its injury. [ 13 ] It is conceded by defence that these injuries, by definition, fall within the aggravating circumstances of assault as identified in section 268 (1) of the Criminal Code .

The injuries were life-threatening and there remain today serious mental and physical deficits which affect Mr. Anderson and his day-to-day ability to function. He is no longer able to work at the track or perform his career as a farrier. There is no issue about the jurisdiction of the Court, crime location or the general date of the offense. The defence concedes that Mr. Anderson did not get kicked by a horse or otherwise injured. He is a victim of an assault.

Putting it in straight talk, a crime was committed, but the identity of the individual who committed the crime is in dispute. [ 14 ] From the undisputed evidence, it is clear Mr. Anderson was assaulted at some point between 10:30 PM in the evening, Friday, January 4, and 7:30 AM in the morning, Sunday January 6, 2013. This is a time span of about 33 hours. It is possible for us to narrow that time window by drawing inferences, but I propose to leave those at this time. [ 15 ] It is also reasonable to infer that Mr. Anderson’s condition deteriorated with the passage of time.

He reported in his evidence that the doctors told him his brain was swelling and if he had not gotten to the hospital when he did, he might have not survived. His injuries were severe and grave, but he is a tough individual and I’m satisfied that his level of comprehension and his ability to function deteriorated with time post injury. The evidence shows also that, although hurt, he was not immediately incapacitated or ever completely incapacitated. [ 16 ] The case is based on circumstantial evidence, save for a possible identification of the assailant by Mr. Anderson.

[17] I turn now to put the position of the parties on the record. II. Submissions A. The Crown [18] The Crown acknowledges that they must prove the essential elements of this offense beyond a reasonable doubt and concedethat the key element in dispute in this case is the identity of the individual who assaulted Mr. Anderson. The Crown indicates that theevidence of the victim alone, identifying Mr. Laczo in Ms. Anderson’s home at the time of his assault, proves the case beyond areasonable doubt; however, even if I reject or have a doubt about Mr.

Anderson’s evidence on this point, the remaining circumstantialevidence also proves the case beyond a reasonable doubt. In short, Mr. Laczo had the opportunity to perform this crime, and hisemotional state, coupled with the telephone linking of his cell phone in the area of the Redwater ranch during the window of opportunity,provide proof beyond a reasonable doubt. Into this mix, the Crown indicates I should conclude they have proven the fabrication of analibi as akin to a confession. B.

The Defence [19] The position of the defence is that notwithstanding any suspicion that I may have about the case, the Crown has not proventhat Mr. Laczo was the perpetrator of the assault to the requisite standard: beyond a reasonable doubt. Further, defence counsel argueshis client’s denial of this wrong doing, in the warned cautioned statements given to the police, must exonerate his client. Finally, Mr.Laczo has an alibi, if I conclude that the assault happened in the early evening, rather than early morning of January 5, 2013. III.

Legal Analysis [20] It is useful in any case involving an individual charged with a criminal offence that some of the first principles be reviewed asa starting point. [21] Mr. Laczo is presumed to be innocent, and that presumption of innocence is to his benefit through the entire course of thetrial, unless at the end of the trial he is convicted. To overcome this presumption of innocence the Crown must prove Mr. Laczo’s guiltbeyond a reasonable doubt.

Proof “beyond a reasonable doubt” goes significantly beyond a mere suspicion of guilt. [22] A reasonable doubt cannot be a far-fetched or frivolous doubt, nor one based on sympathy or prejudice. It must be based onreason and common sense. A reasonable doubt is one that logically arises from the evidence, or the lack of evidence. However, it isnearly impossible to prove anything with absolute certainty, so the Crown is not required to do so. Absolute certainty is a standard ofproof that is impossibly high. [23] There is a second important element to a case such as this.

The evidence of an accused must be examined on its own if theaccused denies the alleged misconduct. This rule comes from the case R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC(3d) 397 [“W(D)”], which warns that a judge or jury should not evaluate an accused testimony in a credibility contest with otherwitnesses. The W(

D) test most often applies when an accused gets on the witness stand and gives evidence. However, the W(D)approach is also used when the Crown elects to introduce the evidence of the accused through statements that the accused has given topersons in authority. [24] In that case, the accused denying his guilt in a statement to persons of authority means that if I believe that evidence, than Imust acquit the accused because the Crown has not proven him guilty beyond a reasonable doubt.

Even if the evidence of the accusedgiven in the statement does not satisfied me of his innocence but at least raises a reasonable doubt, then again, he must get the benefit ofthat doubt and be acquitted. These are the first two steps of the W(

D) procedure. If I do not acquit the accused in those first two stepsthen I test whether the Crown has proven the accused’s guilt beyond a reasonable doubt, taking all evidence into account. [25] In this case, Mr. Laczo was interviewed by the police and denied his involvement in Mr. Anderson’s injuries. If the evidencedenying guilt given by Mr. Laczo in his statement neither satisfies me of his innocence, nor raises a reasonable doubt in my mind, then Imust still consider all of the evidence, or lack of evidence, to decide whether the Crown has proven the guilt of Mr. Laczo beyond areasonable doubt. A. W(

D) Steps 1 & 2 [26] In brief, Mr. Laczo said he did not assault Mr. Anderson. He was not near the Redwater Ranch during the time frame whenthe assault occurred. On the Friday night, he had been fishing with his son Dakota Laczo. He then worked around his farm the nextmorning. Saturday night he went to a fish fry with his brother. [27] In total, there were five statements made by Mr. Laczo to the police. Four of these were video recorded, while the fifth was an18 hour expletive laced exchange in cells between Mr. Laczo and an undercover officer.

Never once did the police elicit a confession ofguilt – it was to the contrary, a complete denial of guilt. While Mr. Laczo’s demeanor varied and was occasionally subdued, at othertimes jocular and forthcoming, he maintained a steadfast denial of injuring Mr. Anderson or knowing anything about it. [28] The five statements were timed first, April 9 from about 1:30 to 5 PM, then on April 23, 2013, basically from the earlyevening until nearly midnight and also overlapping with cell block audio. The last statement was the morning of April 24, 2013. Perhaps30 or 40 times Mr. Laczo denied assaulting Jim Anderson.

I place on the record a sample of this from the statement of April 23, 2013

which started at 17:30 hours: Line 735: Officer: .... Did you assault Jim ANDERSON. Line 736: LACZO: No, sir. And again: Line 1161: Officer: Yeah. So, ah, that Friday night that you’re, you’re talking about or Saturday morning there, did you, ah, did you leave that night at all. Line 1162: LACZO: No sir, I did not. The statement also contains a possibly admission of sorts to being at the ranch January 3, as indicated: Line 2206: LACZO: Yeah. Was there a couple times. November the 10th or 11th and Line 2207 January 3rd… Line 2208: Officer: No, December. Line 2209: LACZO: December the 12th.

Line 2210: Officer: That’s right. Line 2211: LACZO: Yeah. Line 2212: Officer: And January 5th. Line 2213: LACZO: No. [ 29 ] So I must properly approach my analysis by asking if I believe Mr. Laczo. [ 30 ] I don’t and here’s why: His evidence given by statement was internally inconsistent and improbable measured against other hard subjective evidence. [ 31 ] First, he lied to the police with a completely improbable comment about his phone on the date of the assault, January 5, 2013. This arose in the following way: Mr.

Laczo indicated that he knew of no reason why his cell phone would be in the Redwater area on January 5th. He also confirmed that he usually has it with him (although he admitted of some exception). However, we know from phone tower records that the phone was near the Redwater ranch on the fifth of January in the early morning. When Mr. Laczo finally understood that the police could prove his phone was in Redwater on January 5, 2013, Mr. Laczo created a cowardly and disingenuous explanation. He said his best friend, Henry (who was by then deceased), had it at the time.

The RCMP were justifiably astounded when that whopper surfaced. Mr. Laczo thought about this through the night and conceded the next morning that his deceased friend never had the phone. While never directly admitting he was at the Redwater ranch early Saturday morning the day of the assault, he confirmed, perhaps unconsciously, that it was his attempt to deflect blame. So Mr. Laczo lied in his statement to the police and admitted it. [ 32 ] From the statement of April 24, 2013: Line 1145: LACZO: Leave Henry out of it.

He’s gone… Line 1146: Officer: So tell me… Line 1147: LACZO: …he’s my best friend, he didn’t have my phone. And later: Line 1184: Officer: So that was just kind of a defection thing? Line1185: LACZO: Yah. [ 33 ] Second, Mr. Laczo steadfast also denied being at Redwater after December 12, 2012. This is in direct contrast to cell phone tower activity on December 19 th and January 5 th . [ 34 ] The Crown entered evidence of cell phone activity information for Mr. Laczo’s cell phone. These records show some cell phone activity pinging off the Redwater cell phone towers both on December 19 th and January 5 th .

This evidence places Mr. Laczo near the Redwater ranch after December 12, 2012 – contrary to his police statement, and also during the critical assault period. [ 35 ] At 5:51 and 5:53 AM on January 5, 2013, two cell phone calls are made from Mr. Laczo’s cell phone to Victoria Anderson’s BC cell phone and her Alberta cell phone. These calls were transmitted using cell phone towers in the area of the Redwater ranch. [ 36 ] There are two other confirmed phone usages of interest. First, Mr.

Laczo in his statement to the police described the fishing trip with his son and indicated that they stopped for supper in Whitecourt, Alberta. There is a confirmatory cell phone call from Mr. Laczo’s phone transmitted through the Whitecourt phone towers. Second, at 10:13 AM on January 5 th , Mr. Laczo’s phone is used in a call near Winfield. That is consistent with Mr. Laczo’s evidence that he was in the Winfield area in the morning when he was doing farm work.

[ 37 ] The inescapable conclusion is that in the early hours of January 5, 2013, inside the window of time for the assault, Mr. Laczo’s phone was in the area where the assault occurred. As important, it was calling his ex- girlfriend, the third line of this triangle between two men and a woman. [ 38 ] Finally, Mr. Laczo staked out the position in his statements that the breakup meant little to him. Again, there is hard evidence to the contrary. On December 22 and 23, a series of calls recorded and marked in evidence show an aggressive Mr. Laczo making veiled threats against Ms.

Anderson as it relates to custody of her child. He was so concerned, he states, about the safety of her child, because he believes Mr. Anderson is a rapist and a danger to women, that he phones a man he doesn’t even know, the child’s father, to complain about Ms. Anderson’s new man. [ 39 ] It is not possible to believe his denial of guilt. Mr. Laczo is not a credible witness. His account is contradicted, by his own admitted lies to the police and by hard evidence. [ 40 ] I must next ask myself if a reasonable doubt is created by Mr.

Laczo’s denials of guilt expressed several times and many ways, through lengthy statements. This analysis cannot take place in a vacuum.

For the same reasons that I could not believe his denials of guilt, they also cannot raise a doubt because while easy to express in a vacuum, they are cut down by the reality that his phone was in the Redwater area the morning of the beating, he was near the Redwater ranch after December 12 th in direct contrast to his denial, and he had a palpable animus to Jim Anderson, indicated by the criminality he associated with him, and a deeper hurt from Victoria Anderson through his belief she treated him shabbily.

His denials of guilt also do not raise a reasonable doubt about it because they are simply unbelievable and inconsistent with the real evidence that does exist. B. W(

D) Step 3 [ 41 ] That ends the first two steps of the W(

D) analysis. I now must consider all the evidence, incriminating and exculpatory, to evaluate whether the Crown has proven Mr. Laczo guilty beyond a reasonable doubt. 1. Alibi [ 42 ] The Defence argued that Mr. Laczo must be acquitted because he has an alibi. Witnesses testified that Mr. Laczo was with them, so he could not have assaulted Mr. Anderson in the critical window in which the offence occurred. [ 43 ] The Crown elected in this case to call two close relatives of the accused. First, his son Dakota Laczo and also his brother Anthony Laczo. Mr.

Laczo’s son made clear that he and his father had been fishing together on Friday, January 4 th , and did not return to their home in Winfield until later Friday night. Further, the son gave evidence that the next morning after the fishing trip, he saw his dad out in their barn area using a tractor to feed their livestock. He observed that this was around 9 or so in the morning. [ 44 ] Mr. Laczo’s brother indicated that on Saturday night, he took Mr. Laczo and two others to a fish fry in their area. The reality is that from the time Mr.

Laczo’s son went to bed late Friday night until sometime the next morning, Mr. Laczo has really no confirmable alibi, except that which he mounted in his statement to the police that he was at his ranch. However, this evidence still represents an alibi of sorts because it rules out Mr. Laczo’s likely presence at the crime scene for many of the hours during which the potential for the assault occurred. I believe Dakota and Anthony Laczo, so Mr.

Laczo could only have committed the offence in a narrow window of opportunity early Saturday morning while Dakota Laczo was asleep. [ 45 ] It is not the case that the alibi was completely fabricated; it is merely the case that it does not provide full coverage. A partial alibi is not the same as a proven fabricated one so I can make no assumptions about guilt from this lack of total time coverage. [ 46 ] The quality of the alibi depends on when the assault occurred. Mr. Royal emphasizes the evidence that around 5:30 PM on Saturday, January 5 th , Mr. Anderson texts Ms.

Anderson, explaining that his phone has been dead. About one hour later around 6:30 PM on Saturday evening, Ms. Anderson speaks with Mr. Anderson by phone and informs the Court in her evidence that she has difficulty understanding him. Mr. Royal urges me to conclude that the text message at 5:30 PM and the slurred conversation at 6:30 PM mean that the assault occurred on Saturday, January 5, 2013 between 5:30 PM and 6:30 PM. For that period of time, Mr. Laczo has an ironclad alibi. He was going to, or already at, a fish fry near his own ranch with his brother. [ 47 ] What counters this proposition is that Mr.

Anderson indicates this text message happened after the assault and that he was capable of texting with his left hand, the side of his body least affected by the injury. I accept this evidence. Many cell phones have spelling correction devices and word assist in formulating words from a few letters. One can take as long as necessary to craft a text message so any physical impediment can be masked. Further, a simply three word message “sorry phone dead” is not particularly sophisticated. Mr.

Royal’s suggestion that the assault probably occurred later in the day is also inconsistent with the activity pattern on the ranch where evidence reveals the usual work day started at 7:30 AM and wrapped up at 4:30 PM. An early morning assault, significantly before 7:30 AM on a dark January night appears the most consistent with no one seeing the assaulter. An assault just after or just before the early morning cell phone calls from the Redwater area to Victoria Anderson frankly fits perfectly! [ 48 ] I have previously reviewed the cell phone information for Mr. Laczo’s phone. This too subverts his alibi. Mr.

Laczo’s cell phone (and implicitly, Mr. Laczo), were in the Redwater ranch area around 6:00 AM on January 5, 2013. [ 49 ] As a resident of Alberta, I am able to take judicial notice of geography in this province. Winfield, Alberta is south and west of Edmonton while Redwater is North and East. There are several reasonable driving routes, but during the many hours of police interviews, Mr. Laczo was never asked about his preferred route nor was Ms. Anderson, although at one point in her evidence she indicated the trip between the two points, the Redwater ranch and the Winfield ranch, took 2.5 hours.

A review of any reasonable Alberta map would make that estimate likely correct and may even throw in time for a fuel or coffee stop. So we can say from an outside point of view, a five hour round-trip would provide driving opportunity but with little time for stopping, acquiring fuel, or entering an apartment.

[ 50 ] So we have to realistically say that if the Crown’s theory is correct, Mr. Laczo needed a six hour window of opportunity. He had that, and more! Between, 11:30 PM Friday night and 10:00 AM Saturday morning, the total time span is 10.5 hours, but if you deduct 2.5 hours for the return trip, to be in the Winfield area for the cell phone activity at an appropriate Winfield tower just after 10:00 AM on January 5, 2013, Mr. Laczo had 8 hours to drive the 2.5 hours to Redwater, assault Mr. Anderson, and start home. [ 51 ] I therefore reject the defence’s alibi argument. It does not preclude Mr.

Laczo from having conducted the assault. 2. Anderson as a Witness [ 52 ] I had indicated earlier that this case is one based on circumstantial evidence. Mr. Anderson testifies that he observed Mr. Laczo and Mr. Laczo said something to him while standing by the door. This allegedly occurred immediately after the assault, and normally would be powerfully incriminating evidence. However, there exist circumstances which require that I treat this evidence cautiously. There are several reasons for my caution. [ 53 ] First, at some point earlier in time, Mr.

Anderson had consumed alcoholic beverages to the point where he was probably intoxicated. Common sense tells us that intoxication can affect memory. Another item that can affect memory and distort reality is a severe beating affecting the brain. Mr. Anderson had been subjected to a severe beating. [ 54 ] Additionally, when Mr. Anderson was first interviewed by the police, he either did not recall, or was not forthcoming about the detail relating to the interaction between he and Mr. Laczo.

It was only at the second interview, a few weeks later, where he indicated that his memory had recovered to the point where he could identify Mr. Laczo as being in the room by the door and talking to him immediately after the beating. He very fairly at no time identifies Mr. Laczo as his attacker. Mr. Anderson has no memory of the assault itself or of Mr. Laczo assaulting him, but common sense would make it so, if Mr. Laczo was there at the time. [ 55 ] The bottom line is that if this evidence and identification was the only basis upon which Mr.

Laczo could be convicted, he would be acquitted because it is difficult for me to put complete reliance on that identification. This is not to be critical of Mr. Anderson, but really a fair recognition of the circumstances of his condition at the time immediately following the beating. Credible evidence can have two contexts. The first is as an assessment of honesty; the second is as an assessment of reliability. I accept that Mr. Anderson honestly believes that he was beaten by Mr. Laczo, but his eyewitness identification of Mr.

Laczo lacks reliability, because of his medical condition and the likelihood that he was still suffering from some of the effects of the consumption of alcohol the night before. [ 56 ] There is another factor that I need to consider when I evaluate Mr. Anderson’s testimony. [ 57 ] Mr. Royal also cross-examined Mr. Anderson about civil litigation that has been commenced by him against Mr. Laczo. Cross-examination in this manner is a staple of competent defence work when it exists, but it is not particularly illuminating in relation to the decision that I must make.

One suggestion is that the fact that a person has a personal financial motive for convicting the accused should weaken his credibility, for example R v Cloutier , 2011 ONCA 484 at para 81 , 278 OAC 331. [ 58 ] However, even that court approved, urban legend, require certain suppositions that are not always accurate. We all recall the American high profile trial involving football player O.J. Simpson who was found not guilty by a properly instructed Los Angeles jury, but, later in a civil trial, was found responsible for the death of his wife.

The bottom line is that the separate and different burdens of proof in a civil and criminal case, in reality, means that a civil case does not depend on a criminal conviction. [ 59 ] Where there is parallel civil and criminal litigation, a complainant's statement of claim may potentially be used as a prior statement and a basis to cross-examine a complainant: R v Munson , 2003 SKCA 28 at paras 31-39 , 232 Sask R 44. [ 60 ] As he is entitled to do, Mr. Royal cross-examined on the alternate pleas or claims in the statement of claim. He noted that the civil action statement of claim by Mr. Anderson suing Mr.

Laczo also names an unnamed, unidentified alternative attacker. I put very little weight on this fact. A civil litigation lawyer preparing a statement of claim will name all potential defendants because of the restrictions placed on civil litigation by the Limitations Act , RSA 2000, c L-12. This is a duty of Mr. Anderson’s civil lawyer. The focus in civil and criminal litigation is therefore opposite. Civil pleadings are cast broad to ensure no potential defendant or misconduct is missed. Criminal litigation has the opposite focus and demands all allegations and identity be established beyond a reasonable doubt.

It is therefore unfair to simply conclude that since Mr. Anderson's civil action names an alternative to Mr. Laczo, that means Mr. Anderson's allegation is self-serving. Fairness equally dictates that the approach taken by the lawyer of pleading an unknown assailant in the alternate as part of their claim against the ownership of the ranch cannot be interpreted as weakening Mr. Anderson’s identification of his assailant. The statement of claim is therefore a neutral issue and a red herring. It makes a good sound bite, but casts little light. Reliability concerns about Mr.

Anderson’s eyewitness identification of Mr. Laczo flow from physical limitations, not litigation motive. 3. Circumstantial Evidence [ 61 ] The final legal concept that I want to review is the concept of circumstantial evidence. [ 62 ] The law relating to circumstantial evidence has a long and evolutionary history, both in the courts of Canada and in other countries. The case taught to every law student: Her Majesty the Queen v. Hodge ( R v Hodge , (1838) 2 Lew 277) occurred nearly 200 years ago when a woman was killed and robbed in a back alley. Mr.

Hodge was present around the time, knew the deceased and was later seen burying money of approximately the type and denomination taken from the deceased. [ 63 ] While history has clouded exactly what the judge told the jury in that case, a rule emerged called the rule in Hodge’s case, which long proclaimed that when a case is based on circumstantial evidence, the guilt of the accused must be inconsistent with any other rational conclusion. [ 64 ] The Supreme Court of Canada again reviewed the issue of circumstantial evidence in R v Griffen , 2009 SCC 28 .

The test, modified slightly, is an understanding that before a trier of fact can convict on circumstantial evidence, that trier of fact must be satisfied

beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. [ 65 ] If we ignore for a moment Mr. Anderson’s identification of Mr. Laczo in Victoria Anderson’s living unit, immediately after the beating, the case against Mr. Laczo is purely circumstantial. There are no biological forensics, such as DNA or fingerprints that place him at the scene of the crime. There are no other independent eyewitnesses to place him at the scene during the crime. Around the time that Mr.

Anderson was getting intoxicated at the barbecue on the ranch, Mr. Laczo was clearly wrapping up a fishing trip with his son near their residence in Winfield. So after Dakota Laczo went to bed, did Mr. Laczo, either with a hate on for Jim Anderson, or in the hope that Victoria Anderson would be at home, jump in a vehicle and drive to Redwater, enter Victoria Anderson’s apartment, become enraged by the presence of Jim Anderson, beat him severely and then quickly leave making the return trip home? That is the question! [ 66 ] Although the forensics do not incriminate Mr. Laczo, they clearly establish that Mr.

Anderson was assaulted while he was on the couch, probably lying down. The beating was vicious. There is a blood spatter pattern that emanates from the couch in Victoria Anderson’s living room, spattering even family pictures in the area. There is a clear spot on the couch, which is free of blood from which it is speculated that Victoria Anderson’s cat was sleeping at the moment of the assault and then departed, leaving a clear non-spattered area.

The huge amount of blood in Victoria Anderson’s apartment and the concentration of it in the couch, coupled with the spatter pattern overwhelmingly establishes that this was no accident, and that Mr. Anderson was probably laying, perhaps asleep, on the couch when he was assaulted with some object that caused severe and lengthy cuts in his scalp, and also depressed his skull causing brain injury. [ 67 ] Throughout the entire incident, Mr. Anderson greatly underestimated his level of injury. Despite the injury and although none saw it , Mr. Anderson went out to Mr.

Halibi’s vehicle post-assault, rescued a case of beer from the cold and consumed several cans while trying to clean up Victoria Anderson’s, apartment. We know this because of a blood stain left on the vehicle door sill near the beer, the empty beer cans in the apartment and the cleanup efforts inside her home. [ 68 ] On Saturday night, around 9:00 PM, Mr. Mangalee heard someone going up to Mr. Anderson’s apartment. It was Mr. Anderson. There, he showered, dressed in his work clothes, and lay down resting before going to work, around 7:30 AM Sunday morning.

It was at this point his coworkers observed that he was injured. He had difficulty with his coordination on his right side, slurred speech, plus was not wearing proper shoes. Despite the level of injury, he was not consistently incoherent because on the way to the hospital he clearly responded to a co-worker when asked how he was doing, by indicating in a clear voice, that he was hurting. [ 69 ] I turn now to tie together the legal analysis with the factual analysis. [ 70 ] First, Mr. Laczo’s denial evidence has no weight. He steadfastly denied being at Redwater after December 12, 2012.

But that is in direct contrast with the independent evidence of the adjacent neighbor who saw him there and approached him in late December just before Christmas. It is also in contrast to the cell phone activity on December 19 th and January 5 th . Mr. Laczo’s explanation that his dead friend had his phone further critically undermines the weight of his denial that he was involved. [ 71 ] Of more importance, however, as the evidence that he was the assailant is circumstantial, is whether the Crown has proven beyond a reasonable doubt that Mr.

Laczo was the assailant. [ 72 ] I must first, if I can, narrow the assault window. The Crown theory is that it occurred in the early hours of January 5 th , following which Mr. Laczo returned to Winfield, arriving home around the time his son was waking up. In contrast, the defence focuses on the apparently normal text message of around 5:30 PM, from Mr. Anderson to Victoria Anderson; “sorry phone dead” as confirmation that the assault occurred after 5:30 PM on January 5 th . I have previously accepted Mr.

Anderson’s evidence of that. [ 73 ] The early morning assault also matches the travel time and cell phone records. [ 74 ] So let us conclude the analysis of whether the circumstantial evidence is strong enough to convict Mr. Laczo. We know that in the days and weeks leading up to Mr. Anderson’s assault, Mr. Laczo had become unduly preoccupied by the living arrangements of his former girlfriend, and was acting in a way inconsistent with good judgment and human dignity. In a series of phone calls, he revealed himself as an angry individual with edginess to his calls when they would not be accepted by Ms. Anderson.

We know he made considerable effort to spy on Ms. Anderson. He asked uncomfortable questions to her co-workers and made inquiries about her living arrangements. [ 75 ] Weeks prior to this assault, Ms. Anderson was in a vehicle that had been borrowed from another co-worker when it was vandalized in Redwater. Coincidentally, Ms. Anderson says she saw Mr. Laczo in Redwater driving by, around the time she was reporting the vandalism to the RCMP. Again, it would be unusual for Mr. Laczo to be in Redwater because he did not live near the area.

His connection to the Redwater area appeared to be the ranch on which his former girlfriend, Ms. Anderson, was residing. [ 76 ] Then we have the bizarre behavior of staking out the premise from the neighbor’s farm and effectively lying to the neighbor, assuming the persona of a private investigator spying on a woman called Vicki. Mr. Laczo was no private investigator. He was simply a former boyfriend whose girlfriend had elected to move out of his home and go to another location. Second, Mr.

Laczo indicated to the police that he was nowhere near the Redwater ranch during the relevant time that this incident could have occurred. Yet his phone, which his son indicated was with him all the time unless it was at home on a counter, was identified by telecommunications technology as being close to towers servicing the area of the Redwater ranch when calls were made from it. [ 77 ] Mr. Laczo had both motive and opportunity. The motive was the oldest in the book, a love triangle and a spurned lover. [ 78 ] On January 4, 2013, after he brought his son home and the child went to bed, Mr.

Laczo left his farm in Winfield, traveled to the Redwater ranch, and in the early morning of January 5 th , made two calls to Victoria Anderson, one to her Alberta cell phone, the other to her BC cell phone. Neither was answered, but I infer either he was hoping to ascertain her whereabouts or continue the earlier argumentative calls. It is a simple common sense conclusion to move from his cell phone being in the area to concluding that he was

there. Even had he lent his phone or it had been stolen, what are the odds of a thief or borrower calling Victoria Anderson at 6:00 AM in the morning? Then later the odds of a thief or borrower heading back to the Winfield ranch to handle the next call at 10:13 AM? The circumstances of the phone proximity to the Redwater ranch and it’s before and after routing bolsters and adds reliability to any limitations surrounding the weak identification made by Mr. Anderson. No other explanation makes sense or is even remotely rational.

It is the only reasonable inference which can be drawn from the circumstantial evidence. When I add to it Mr. Laczo’s unusual activity in late December, the hostile calls and the surveillance of the ranch, the assaultive conduct is proven on the circumstantial evidence. [ 79 ] I’m satisfied that after Mr. Laczo returned home with his son from an ice fishing trip on Friday, January 4, 2013, his son went to bed. At a point in time after that, I’m satisfied that Mr. Laczo got in a vehicle and drove to the Redwater ranch. He entered Ms. Anderson’s duplex, assaulted Mr. James Anderson and nearly killed him.

He then returned home to Winfield. IV. Conclusion [ 80 ] Mr. Laczo would you please stand. I am satisfied of your guilt beyond all reasonable doubt. There is no other rational inference that can be drawn from the evidence heard in this trial. Heard on the 1 st to the 5 th days of February, 2016. Dated at the City of Edmonton, Alberta this 17 th day of February, 2016. A.W. Germain J.C.Q.B.A. Appearances: James Mahon Alberta Justice for the Crown Peter Royal, Q.C. Royal & Company for the Accused