R v Johnson, 2016 ABQB 633

Court of Queen ’ s Bench of Alberta Citation: R v Johnson, 2016 ABQB 633 Date: 20161114 Docket: 131473563Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Stefan Bryan Johnson Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] Joseph Yellowbird and Stefan Johnson encountered one another early in the morning of December 15, 2013 outside of JT’s Bar and Grill in Edmonton. They had never met before. Their encounter was brief, only a few minutes. They fought. Mr.

Yellowbird died soon after. Mr. Johnson was charged with one count of aggravated assault. His defence was self-defence. His trial took place over three days in September 2016. Judgment was reserved until today. [ 2 ] I shall review preliminary issues, provide some comments on witnesses and evidence, review uncontested facts, provide my determinations respecting the events in issue, then assess Mr. Johnson’s criminal responsibility. Table of Contents A. PRELIMINARY ISSUES . 4 1. Equal Protection under the Law .. 4 2. The Charge . 4

3. Criminal Code Provisions and Theories of the Crown and Defence . 5 4. Proof Beyond a Reasonable Doubt 8 B. SOURCES OF EVIDENCE .. 12 1. Mr. Yellowbird’s Criminal Record . 12 2. Crown Witnesses . 15 (

a) General Comments . 15 (

b) Megwan Yellowbird and Randy Cardinal 16 (

c) Miranda Anderson . 16 (

d) Jeremy Judge . 17 (

e) Siobhan Shred . 18 (

f) Amarjeet Singh Dhillon . 18 (

g) Michael Bolzon . 19 3. Stefan Johnson . 21 C. UNCONTESTED FACTS . 22 1. Admissions . 22 2. Admissions under s. 655 of the Criminal Code . 22 3. Background Events . 23 (

a) Events Bringing Mr. Yellowbird to JT’s Bar and Grill 23 (

b) Events Bringing Mr. Johnson to JT’s Bar and Grill 24 (

c) No Contact at JT’s Bar and Grill 25 D. EVENTS IN ISSUE .. 25 1. Why didn’t Mr. Yellowbird get into the car with Mr. Cardinal and Ms. Yellowbird and drive away? 26 2. Did Mr. Yellowbird approach Mr. Johnson or did Mr. Johnson approach Mr. Yellowbird? . 27 3. What was said between the two men during the approach? . 28 4. What happened when Mr. Yellowbird and Mr. Johnson came within arm’s length of one another? 29 5. How did Mr. Yellowbird and Mr. Johnson go to the ground? . 31 6. What happened when Mr. Yellowbird and Mr. Johnson were both on the ground? . 32 7. What, if anything, did Mr. Johnson or Mr. Bolzon or both of them do to Mr. Yellowbird after Mr. Johnson got to his feet? . 33 (

a) Considerations . 34 (

i) Number of Witnesses . 34 (ii) Improbability of Coincidence of Observations . 34 (iii) Reasoned Rejection of the Evidence of a Plausible Witness . 34 (

b) Evaluation of Testimony . 37 (

i) the Witnesses . 37 (ii) Post-Offence Conduct 38 (iii) Injuries . 39 (iv) Conclusion . 39 (

c) Inference Based on Lack of Crown Evidence . 39

8. What did Mr. Johnson and Mr. Bolzon do after leaving Mr. Yellowbird? . 43 E. ASSESSMENT . 44 1. Intentional Application of Force to Mr. Yellowbird . 44 2. Self-Defence . 44 (a) s. 34(1)(a) – Did Mr. Johnson believe on reasonable grounds that force was being used or was threatened to be used against him? . 45 (

i) Did Mr. Johnson believe that force was being used or was threatened to be used against him? 45 (ii) Did Mr. Johnson have reasonable grounds for his belief that force was being used or was threatened to be used against him? . 46 (b) s. 34(1)(b): Did Mr. Johnson act for the purpose of defending himself from the use or threat of force against him? . 47 (c) ss. 34(1)(

c) and 34(2): Were the acts committed by Mr. Johnson reasonable in the circumstances? 48 (i) s. 34(2)(a) – what was the nature of the threat? . 49 (ii) s. 34(2)(b) – was the use of force was imminent and were there were other means available to respond to the potential use of force? . 50 (iii) s. 34(2)(g) - what was the nature of Mr. Johnson’s response to the use or threat of force and was it proportional? . 52 (iv) conclusion on reasonableness . 56 F. CONCLUSION .. 56 A. PRELIMINARY ISSUES 1. Equal Protection under the Law [ 3 ] I will begin where the Crown submissions ended. Mr. Yellowbird was Aboriginal. Mr.

Johnson is not. In his final submissions, the Crown relayed Mr. Yellowbird’s family’s concerns: [The family has] been fearful from day one that in a case with a clean-cut white accused and a First Nations deceased, [Mr. Yellowbird] will never get a fair trial; he’ll be seen as just another dead Indian. I know that My Lord will follow the legal tests, but Joseph Yellowbird is not just another dead Indian. He was a father, a son, a member of society. [He was] hard working and loved by his family and I trust this Court will come to the right decision in this trial. I make these observations: [ 4 ] Mr.

Yellowbird’s family was present throughout the trial. They endured the evidence of his last hours and minutes with sorrow and dignity. I have never lost a family member in similar circumstances, so I cannot presume to know how they feel. I do appreciate how difficult they must have found the long, cold, and ponderous mechanisms of criminal procedure. [ 5 ] I confirm, without reservation, that Aboriginal lives matter. Under s. 15 of our Canadian Charter of Rights and Freedoms , everyone, each individual, regardless of heritage, is entitled to equal protection and benefit of the law.

The law includes the criminal law. A main purpose of the criminal law, including its application in trials, is the protection of each member of the public from harm, from criminal violence. My assessment of Mr. Johnson’s criminal responsibility could not be and was not in any way influenced by Mr. Yellowbird’s heritage. [ 6 ] Yet the task I am called to, the duty imposed on me, is to determine, based on all of the evidence, whether the Crown has established Mr. Johnson’s guilt for the charged offence beyond a reasonable doubt. It is Mr. Johnson who is on trial. 2. The Charge [ 7 ] The Indictment faced by Mr.

Johnson reads as follows: Stefan Bryan Johnson stands charged 1. That he, on or about the 15 th day of December, 2013, at or near Edmonton, Alberta, did unlawfully wound, maim, disfigure or endanger the life of Joseph Yellowbird, thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code of Canada. [ 8 ] Mr. Yellowbird died after his encounter with Mr. Johnson. Mr. Johnson, though, has not been charged with a homicide offence. The encounter must have formed part of the setting or background to Mr. Yellowbird’s death. Beyond that observation, I cannot venture. The factual and legal links between the encounter and Mr. Yellowbird’s death were not in evidence or pursued in argument before me. I wholly respect the authority of the Crown to determine the appropriate charge to pursue in the public interest: Krieger v

Law Society of Alberta, [2002] 3 SCR 372, 2002 SCC 65 at paras 46 and 47. 3. Criminal Code Provisions and Theories of the Crown and Defence [9] The Criminal Code provisions applicable to aggravated assault are as follows: Aggravated assault 268(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. Punishment

(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceedingfourteen years .... Assault itself is defined by s. 265 of the Criminal Code: Assault 265(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly .... Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault .... [10] Given the unfolding of the evidence, the Crown had two routes to secure a conviction for aggravated assault, distinguishedonly by whether Mr. Yellowbird did not consent in fact or did not consent in law. Thus, the Crown could secure a conviction on proofbeyond a reasonable doubt that (

a) Mr. Johnson intentionally applied force to Mr. Yellowbird, at the time and place alleged in the Indictment; (

b) Mr. Yellowbird did not consent to this application of force; (

c) Mr. Johnson knew that Mr. Yellowbird did not consent to this application of force; (

d) the force applied by Mr. Johnson wounded, maimed, disfigured, or endangered the life of Mr. Yellowbird; and (

e) a reasonable person in the circumstances would have realized that the force Mr. Johnson intentionally applied would put Mr.Yellowbird at risk of suffering bodily harm. On the nature and seriousness of injuries supporting a conviction for aggravated assault as opposed to assault causing bodily harm, see Rv Hilderman, 2005 ABQB 106, P Martin J, as he then was; R v Littletent, 1985 ABCA 22, Moir JA at para 2; and R v Hartling, 2016YKTC 22, Chief Judge Ruddy.

On the fault element relating to the causation of bodily harm, see R v Williams, [2003] 2 SCR 134, 2003SCC 41, Binnie J at para 22; and R v Nanemahoo, 2011 ABCA 182 at paras 21-22. [11] Alternatively, the Crown could secure a conviction for aggravated assault on proof beyond a reasonable doubt of (a), (

d) and(e), and (instead of (

b) and (c)), (b.1) Mr. Johnson intended to cause serious hurt or non-trivial bodily harm to Mr. Yellowbird through the application of the force; and (c.1) Mr. Johnson in fact caused serious hurt or non-trivial bodily harm to Mr. Yellowbird through the application of the force. For the requirement of proof of both intention to cause and causation of serious hurt or non-trivial bodily harm, see R v Jobidon, (SCC), [1991] 2 SCR 714, Gonthier J at 760 and 766-767; and R v Paice, [2005] 1 SCR 339, 2005 SCC 22, Charron J at paras11 – 14. [12] The first approach would apply if the evidence established that Mr.

Johnson attacked Mr. Yellowbird. The second approachwould apply if the evidence established that the encounter between Mr. Yellowbird and Mr. Johnson transformed into a consensual fight. [13] Mr. Johnson relied on the defence of self-defence. The governing Criminal Code provisions are as follows: Defence — use or threat of force 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being madeagainst them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce; (

c) the person’s role in the incident; (

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

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

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

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

h) whether the act committed was in response to a use or threat of force that the person knew was lawful .... The self-defence provisions established by S.C. 2012, c. 9, s. 2 apply since the events took place after March 11, 2013, when theseprovisions came into force. [14] As s. 34(1) states, if an accused is entitled to rely on the defence, he is “not guilty of an offence.” If, on the evidence, Mr.Johnson were entitled to rely on the defence, he would not be guilty of aggravated assault. [15] The defence has both subjective and objective elements.

The subjective elements are an accused’s belief that force or a threatof force was being used against him and that the accused committed the act constituting the offence “for the purpose of defending orprotecting [himself] ... from that use or threat of force.” These subjective elements rely on evidence of what the accused actually believedand what his actual purposes were at the material times.

The objective elements are that the belief must be based on “reasonablegrounds” and that “the act committed [was] reasonable in the circumstances.” Subsection 34(2) stipulates that “[i]n determining whetherthe act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other partiesand the act,” including the factors listed in that subsection. [16] While self-defence does require evidential support, the defence bears no legal burden of establishing the defence.

The Crownbears the burden of establishing, beyond a reasonable doubt, that the defence is not available in the circumstances. The defence is notavailable if the Crown establishes, beyond a reasonable doubt, that any one of the elements of the defence is not met: R v Levy, 2016NSCA 45 at para 107. Justice Yamauchi described the burden of proof issue in R v L’Hirondelle, 2016 ABQB 72 at paras 17 and 18: [17] It is the Crown’s burden to prove beyond a reasonable doubt that the Accused did not act in self-defence.

Said differently, theAccused is not required to prove that he acted in self-defence. [18] The Crown must prove beyond a reasonable doubt that the Accused does not meet each of the conditions outlined in CriminalCode s 34(1). If any one of the conditions outlined in Criminal Code s 34(1) is absent, the Accused cannot use the defence of self-defence. If all of those conditions are present, this Court must acquit the Accused of aggravated assault.

In R v Cinous, [2002] 2 SCR 3, 2002 SCC 29, Chief Justice McLachlin and Justice Bastarache confirmed at para 39 that In a situation where the accused relies on this defence, and perhaps especially when the accused testifies, the jury must be told that theburden of proof in relation to this defence is on the Crown, who must prove beyond a reasonable doubt that the defence does not apply. See also R v Gill, 2016 BCSC 438, Ball J at para 19. [17] In this case, the Crown had three responses to the alleged defence.

The Crown sought to establish the following: First, Mr.Johnson did not believe or lacked reasonable grounds for believing that Mr. Yellowbird used force or threatened to use force against him.Second, the kicking or stomping of Mr. Yellowbird was done out of anger and not for the purpose of defending or protecting himself.Third, the acts committed by Mr. Johnson in purported self-defence were not reasonable in the circumstances. He therefore lost theprotection of the defence. I note that s. 26 of the Criminal Code was also relevant to the Crown’s position.

It provides as follows: 26 Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality ofthe act that constitutes the excess. [18] If the defence of self-defence were found, beyond a reasonable doubt, not to be available to Mr. Johnson on the evidence, theCrown contended that there would be no legal or evidential impediment to finding Mr. Johnson guilty of aggravated assault. 4. Proof Beyond a Reasonable Doubt [19] The Crown and Defence agreed that this was a “W(D)” case: R v W(D), (SCC), [1991] 1 SCR 742. Theywere correct.

As Justice Watt wrote in R v FEE, 2011 ONCA 783 at para 104,

Where, on a vital issue, credibility findings must be made between conflicting evidence called by the defence or emerging from evidencefavourable to the defence adduced as part of the Crown's case, the trial judge must relate the principle of reasonable doubt to thosecredibility findings: R. v. D. (B.), 2011 ONCA 51 , [2011] O.J. No. 198, 266 C.C.C. (3d) 197, [2011 ONCA] at para. 11. This case did not turn on any fine points of law but on the evidence. The testimony of various witnesses, some supportive of the Crown’scase, some not, conflicted on what happened at crucial times. [20] W(

D) is a recent confirmation of a foundational principle of the criminal law, of what has been referred to as a “goldenthread” that has run through criminal law from its common law origins to its present Charter-infused form. In 1935, Viscount Sankey LCput the matter this way in Woolmington v DPP, [1935] AC 462 (HL) at 481 - 482: Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to provethe prisoner's guilt ....

If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by eitherthe prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not madeout the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecutionmust prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained .... Whendealing with a murder case the Crown must prove (

a) death as the result of a voluntary act of the accused and (

b) malice of the accused.It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act ofthe accused which is (i.) intentional and (ii.) unprovoked. When evidence of death and malice has been given (this is a question for thejury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his partwhich caused death was either unintentional or provoked.

If the jury are either satisfied with his explanation or, upon a review of all theevidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, theprisoner is entitled to be acquitted [emphasis added]. [21] In the 1991 W(

D) decision at 758, Justice Cory summarized the conclusions a trier of fact might reach following itsassessment of all of the evidence in the case: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. As Justice M.A.

Code wrote in R v Thomas, 2012 ONSC 6653 at para 24, [24] .... A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when decidingwhether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’switnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. Inother words, these decisions are all made at the same time on the basis of the same total body of evidence.

The so-called “three steps” inW.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering thetotality of the evidence. [22] Another step in the exposition of possible findings was approved in R v JHS, [2008] 2 SCR 152, 2008 SCC 30. This stepfollows the second W(

D) step: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you mustacquit:” JHS, Binnie J at para 12. This step confirms the reasoning of Justice Martin in R v Nimchuk, (ON CA), 1977CarswellOnt 980, 33 CCC (2d) 209 (Ont CA) at para 7 (CarswellOnt): In our view, the trial judge in concluding that in order to acquit the appellant he would have to find that Mrs. Vanka was “framing him”,in effect, placed the burden of proof upon the appellant.

The trial judge appeared to think that he was confronted with a choice betweentwo alternatives, either accepting the evidence of the accused, and finding that Mrs. Vanka framed him, or accepting the evidence ofMrs. Vanka, which required a conviction. There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of theconflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal [emphasis added].

See also R v Hogg, 2013 PECA 11, affd 2014 SCC 18 at paras 133 and 134. [23] I have reminded myself of some further aspects of proof beyond a reasonable doubt. [24] When deciding whether the Crown has proven its case beyond a reasonable doubt, the evidence must be considered as awhole: R v Morin, (SCC), [1988] 2 SCR 345, Sopinka J at 361 – 362.

With some exceptions, the assessment of evidencerelating to particular issues or the evidence of particular witnesses should not be isolated from the assessment of all of the evidence in thecase: Morin at 354. [25] The reasonable doubt standard applies to elements of the offence or “vital issues,” including credibility when testimonyconflicts respecting elements of the offence: W(

D) at 757 (“In a case where credibility is important, the trial judge must instruct the jurythat the rule of reasonable doubt applies to that issue”). The reasonable doubt standard does not otherwise apply to individual items ofevidence: R v Campbell, 2015 ABCA 70 at para 44 (“As stated in R v H(JM), 2011 SCC 45 at para 31, [2011] 3 SCR 197 (referring to Rv Morin, (SCC), [1988] 2 SCR 345, [1988] SCJ No 80 (QL) at paras 21 – 33): “The principle is that it is an error of lawto subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole:see e.g., B.(G.), at pp 75-77 and 79”)); D(

B) at para 96. [26] The requirement that the Crown prove its case “beyond a reasonable doubt” entails that the evidence relied on by theprosecution must leave no reasonable inference, no reasonable possibility, that the accused is innocent. The standard is not one beyond“any” doubt – it is not a standard of absolute certainty – but the standard is one that excludes all “reasonable” doubts about innocence,

doubts that are not mere speculation, or imaginary or frivolous, or based on sympathy or prejudice: R v Lifchus, (SCC), [1997] 3 SCR 320, Cory J at para 31. [27] A reasonable doubt may be derived from the evidence or the absence of evidence: Lifchus at para 36; R v Balla, 2016 ABCA212 at para 52. [28] All, some, or none of the evidence of a particular witness may be accepted: JHS at para 10. [29] In applying the reasonable doubt standard I must apply the same level of scrutiny to Crown and Defence evidence (keeping inmind that the Crown bears the burden of proof and, to secure an acquittal, Mr.

Johnson need only a raise a reasonable doubt respectingthe availability of the defence of self-defence or respecting an element of the charged offence). I should not impose an elevated or morescrupulous standard to the testimony of Crown witnesses than to Defence witnesses or vice versa.

I should not be more forgiving ofinconsistencies or improbabilities for one witness as opposed to another: R v Howe, (ON CA) 192 CCC (3d) 480;[2005] OJ No 39 (QL), Doherty JA at paras 59 – 64 ; R v Norman, (ON CA), 87 CCC (3d) 153, [1993] OJNo 2802 (QL), Finlayson JA at 24 – 25 ; R v Schell, 2013 ABCA 4 at para 34; R v MJB, 2015 ABCA 146 at para 33; R vMcGown, 2016 ONCA 575 at para 96. [30] Finally, my assessment of the credibility and reliability of witnesses has been guided by the factors referred to by JusticeFerguson in R v Storey, 2010 NBQB 86 at para 78: No longer are judges encouraged to consider demeanour evidence to be a determining or even central tool in credibility assessment.

R. v.R.G.L., (ON CA), [2004] O.J. No. 1944 (O.C.A.); R. v. F.(S.), (2007), 2007 PESCAD 17 , 223 C.C.C. (3d)1 (P.E.I.S.C.A.D.) and also R. v. T.E., 2007 ONCA 891 , [2007] O.J. No. 4952 (Ont. C.A.). Rather, the proper approach is toconsider the evidence of a particular witness against the backdrop of the rest of the evidence led or other evidence tendered, searchingfor connectors that may not necessarily rise to the level of legal corroboration between witnesses, the other evidence tendered or acombination of the two in deciding what worth should be attributed to it.

In the final analysis it becomes a matter of determining theveracity of the evidence utilizing the age old tools of logic, reason and common sense in measuring the probability, if it is deductiblefrom the evidence, that the witness or witnesses’ honesty on the central issue or issues is assailable.

I have also been guided by the decision of Justice O’Halloran in Faryna v Chorny, (BC CA), [1952] 2 D.L.R. 354,1951 CarswellBC 133 (BCCA) at para 10 (CarswellBC): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. [31] In terms of judicial common sense and the judicial reflection of the practical and informed person, I refer to Justice Abella’sreasons in Yukon Francophone School Board, Education Area #23 v.

Yukon (Attorney General), 2015 SCC 25, [2015] 2 SCR 282 atparas 32 and 33: [32] But it is also important to remember the words of L’Heureux-Dubé and McLachlin JJ. in S. (R.D.), [ (SCC),[1997] 3 SCR 484] where they compellingly explained the intersecting relationship between a judge’s background and the judicial role: . . . judges in a bilingual, multiracial and multicultural society will undoubtedly approach the task of judging from their variedperspectives.

They will certainly have been shaped by, and have gained insight from, their different experiences, and cannot be expectedto divorce themselves from these experiences on the occasion of their appointment to the bench. In fact, such a transformation woulddeny society the benefit of the valuable knowledge gained by the judiciary while they were members of the Bar. As well, it wouldpreclude the achievement of a diversity of backgrounds in the judiciary.

The reasonable person does not expect that judges will functionas neutral ciphers; however, the reasonable person does demand that judges achieve impartiality in their judging. It is apparent, and a reasonable person would expect, that triers of fact will be properly influenced in their deliberations by theirindividual perspectives on the world in which the events in dispute in the courtroom took place.

Indeed, judges must rely on theirbackground knowledge in fulfilling their adjudicative function. [paras. 38-39] [33] Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather,they require that the judge’s identity and experiences not close his or her mind to the evidence and issues. There is, in other words, acrucial difference between an open mind and empty one. Bora Laskin noted that the strength of the common law lies in

part in the factthat the judges who administer it represent in themselves and in their work a mix of attitudes and a mix of opinions about the world in whichthey live and about the society in which they carry on their judicial duties. It is salutary that this is so, and eminently desirable that itshould continue to be so. B. SOURCES OF EVIDENCE 1. Mr. Yellowbird’s Criminal Record [32] I admitted Mr. Yellowbird’s record of convictions as an exhibit. The record included youth convictions.

The adult convictionsincluded two operation “over 80” offences (Criminal Code ss. 253(1)(b)) in 1999 and 2009; dangerous operation of a motor vehicle in2009 (Criminal Code s. 249(1)(a)), and mischief in 2011 (Criminal Code, s. 430(1)(a)). The youth convictions included robbery in 1997

(Criminal Code, s. 344(a)), assault in 1997 (Criminal Code, s. 266), and forcible entry in 1998 (Criminal Code, s. 72(1)). The Crown didnot object to the admissibility of the record of the adult convictions. [33] The Defence sought the admissibility of the record of the youth convictions in relation to Mr. Johnson’s claim of self-defence.Mr. Johnson knew neither Mr. Yellowbird nor his past and so the convictions themselves would not have been directly relevant to Mr.Johnson’s appreciation of unfolding events involving Mr. Yellowbird.

The convictions for robbery and assault would be relevant to theissue of whether, as Mr. Johnson contended, Mr. Yellowbird used force or threatened to use force against Mr. Johnson. The robbery andassault convictions were relevant to the issue of Mr. Yellowbird’s propensity for violence, which in turn was relevant to the issue ofwhether Mr. Yellowbird, acting in accordance with that propensity, was the aggressor in the encounter with Mr. Johnson. If Mr.Yellowbird did behave aggressively, that would be some evidence supporting Mr.

Johnson’s contention that he acted in response to athreat of physical harm or the use of force against him. [34] The authoritative analysis of the admissibility of evidence of a victim’s propensity for violence was provided by JusticeMartin in R v Scopelliti (1982), (ON CA), 34 OR (2d) 524; 63 CCC (2d) 481, 1981 CarswellOnt 814 (Ont CA) atpara 30 (CarswellOnt): Obviously, evidence of previous acts of violence by the deceased, not known to the accused, is not relevant to show the reasonablenessof the accused's apprehension of an impending attack.

However, there is impressive support for the proposition that, where self-defenceis raised, evidence of the deceased's character (i.e. disposition) for violence is admissible to show the probability of the deceased havingbeen the aggressor and to support the accused's evidence that he was attacked by the deceased The propensity of a victim for violence is admissible only if there was “some other appreciable evidence of the [victim’s] aggression onthe occasion in question:” Scopelliti at para 32 (CarswellOnt); R v Murphy, 2016 ONCA 705, R v Grant, 2016 ONCA 639 at para 155.There was evidence, emanating particularly from the testimony of Mr.

Cardinal, Mr. Bolzon, and Mr. Johnson, from which it could havebeen inferred that Mr. Yellowbird acted in accordance with that propensity at the time in question. Evidence of not only past acts but of acriminal record may be introduced on the issue of a deceased’s propensity for violence: R v Patterson (2006), (ONCA), 79 OR (3d) 257; 205 CCC (3d) 171 (Ont CA), Laforme JA at para 17. [35] The Crown opposed the admissibility of the youth record on two bases. First, its probative value was low. The offencesoccurred about 16 years before the events in question.

There were only two violence offences in the same year, dealt with judicially onthe same dates, demonstrating no pattern of conduct and certainly no recent pattern of conduct. These were youth offences.

The youthjustice system is predicated, in part, on the developmental level of young people which cannot be equated with that of adults.Subparagraph 3(1)(b)(ii) of the Youth Criminal Justice Act provides as follows: the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moralblameworthiness or culpability and must emphasize the following: ... (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level ofmaturity ....

Propensity as a youth (if any) does not necessarily entail propensity as an adult. [36] However, I kept in mind that otherwise admissible defence evidence should be excluded only if the prejudicial effects of theevidence substantially outweigh the probative value of the evidence: “the prejudice must substantially outweigh the value of theevidence before a judge can exclude evidence relevant to a defence allowed by law:” R v Seaboyer; R v Gayme, (SCC),[1991] 2 SCR 577 at 611; see R v Yaeck (1991), (ON CA), 68 C.C.C. (3d) 545 at 563 (Ont.

C.A.), Osborne JA In thisinstance, the limitations on the probative value of the evidence were clear. The probative value of the record was not high, but neitherwas it nil. I detected no prejudicial effects, in the sense of the past convictions arousing feelings of hostility against Mr. Yellowbird(Scopelliti at para 47) or supporting the illegitimate inference that Mr. Yellowbird did not deserve the full protection of the law or thatthe legal standards for the availability of self-defence were lowered because of his past: see Grant (OCA) at para 156.

Hence, the youthrecord was not inadmissible on this ground. [37] Second, the Crown relied on ss. 118 and 119 of the Youth Criminal Justice Act as a basis for the exclusion of the youthelements of Mr. Yellowbird’s record. Sections 118 and 119 provide as follows: 118

(1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and noinformation contained in it may be given to any person, where to do so would identify the young person to whom it relates as a youngperson dealt with under this Act .... 119

(1) Subject to subsections (4) to (6), from the date that a record is created until the end of the applicable period set out in subsection(2), the following persons, on request, shall be given access to a record kept under

section 114, and may be given access to a record keptunder sections 115 and 116: .... (

c) the Attorney General; ... (

g) any peace officer for (

i) law enforcement purposes, or (ii) any purpose related to the administration of the case to which the record relates, during the course of proceedings against the youngperson or the term of the youth sentence; (

h) a judge, court or review board, for any purpose relating to proceedings against the young person, or proceedings against the personafter he or she becomes an adult, in respect of offences committed or alleged to have been committed by that person; ...

(

q) an accused or his or her counsel who swears an affidavit to the effect that access to the record is necessary to make a full answer anddefence; .... (

s) any person or member of a class of persons that a youth justice court judge considers has a valid interest in the record, to the extentdirected by the judge, if the judge is satisfied that access to the record is ... (ii) desirable in the interest of the proper administration of justice. Defence counsel or even this Court did not fit within any of the access roles identified in paras (

a) through (

r) of s. 119, no affidavit wassworn under para (q), and no application was made to a youth justice court judge for access under para (s). Had the circumstances beendifferent, it would appear that Defence counsel would have been required, under current authorities, to make an application under s.119(1)(

s) for access to the record. Hence, the argument ran, access to Mr. Yellowbird’s youth record should not have been granted forthe purpose of introducing the record as an exhibit in the proceedings against Mr. Johnson. [38] Mr. Yellowbird’s youth record, however, was disclosed by the Crown to the Defence. Sections 118 and 119 were notengaged. The Crown had the record (s.119(1)(c)) and provided the record.

It had authority to do so: SL v NB (2005), (ON CA), 252 D.L.R. (4th) 508, 196 O.A.C. 320, 195 C.C.C. (3d) 481 at para 48; see R v Mosa, 2016 ABQB 336 at paras 26 and 30.The Defence did not seek access to the record. It already had the record. In the present circumstances and in my opinion, ss. 118 and 119did not block the admissibility of the youth elements of Mr. Yellowbird’s record. [39] I note that there was no argument relating to the Crown’s disclosure authority under s. 125(2). I will comment only that theeffects of s. 125(2) may not reach to pluck back information already disclosed to the Defence.

Moreover, the subsection refers to a“witness” which may not apply to a deceased victim of an (alleged) offence. [40] I note as well that there are, of course, distinctions between admissibility, weight, and the ultimate use of evidence. As will beseen below, I did not rely on Mr. Yellowbird’s record of convictions to make any factual determinations. 2. Crown Witnesses [41] The Crown called 11 witnesses.

Four of these witnesses – Brian Hall and Shauna Henry, who were emergency servicesresponders, and Daniel Stevenson and Terry Lee, who were JT’s Bar and Grill security employees – provided narrative and contextualinformation but did not observe the important events. I will make little to no further reference to their testimony. The other witnesseswere Megwan Yellowbird, Randy Cardinal, Miranda Anderson, Jeremy Judge, Siobhan Shred, Amarjeet Singh Dhillon, and MichaelBolzon. [42] I will begin with comments that apply to the Crown witnesses generally, then make some comments about the Crownwitnesses and Mr. Johnson.

Testimony about particular issues will be addressed in part D below, Events in Issue. (

a) General Comments [43] My general comments about the Crown witnesses turn on the distinction between credibility and reliability. According toJustice Doherty in R v Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 at 205: When one is concerned with a witness's veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of awitness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannotgive reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Justice Doherty indicated that the assessment of a witness’s reliability involves considering “the witness's ability to accurately observe,recall and recount the events in issue.” See also Thomas at paras 13 and 14. [44] With one exception, which I’ll address shortly, the credibility of the Crown witnesses, in the sense of their sincerity or theirdesire to convey the truth, was not challenged. The Crown witnesses offered observational, eye-witness evidence. In my opinion, theywere trying to describe what occurred, as they recalled it. [45] Supporting their credibility was the fact that Ms. Anderson, Mr.

Judge, Ms. Shred, and Mr. Dhillon were independentwitnesses. They had no connections to either Mr. Yellowbird or Mr. Johnson. They had no motive to fabricate or mislead based onpersonal relationships. [46] There were issues with the reliability of their testimony. I will detail my concerns below, but at this point I’ll note theoverarching reliability issues of intoxication and fatigue, lighting, and “surprise.” [47] Except for Mr. Dhillon, the Crown witnesses had been drinking. Some of the witnesses seem to have been embarrassed by thefact that they had been impaired or had had a lot to drink.

They need not have been. They were doing nothing wrong. They could nothave known that they were going to be called on to testify about what would occur after they left the bar. In addition, the events tookplace very early in the morning, at about 2 a.m. Intoxication and fatigue at the late hour would have impaired the witnesses’ ability tointerpret what they observed and to form memories about what they observed. [48] The events took place in a parking lot at about 2 a.m. on a December morning. It was not raining or snowing at the materialtimes. Testimony about the lighting in the parking lot varied. Mr.

Dhillon claimed that the light was sufficient to permit him to seeclearly. Ms. Anderson testified that besides the lights from the Menisa Liquor Store (across the parking lot from the bar), there was notmuch light; it was dark and difficult to see. Mr. Judge, who was with Ms. Anderson, referred to orange overhead lights, which were “notthe greatest” but gave enough illumination to see. Ms. Shred testified that the lighting was dim: it was dark outside but there wasillumination from street lights and lights in the parking lot.

[49] Importantly, the events happened suddenly. The witnesses were not in the position of an audience anticipating events to come.They did not prepare themselves to make observations. They did not have a pre-determined context in which to organize theirobservations. Their attention was attracted – by noise or motion or both – to something happening at a distance in dim light. Themovements of Mr. Yellowbird and Mr. Johnson were quick and took place over a very short period of time. The witnesses had to makesense of or had to interpret the movements that they saw. I am very concerned that what they believe they observed and therefore whatthey purport to remember is an

interpretation of what took place. The conditions were not optimum for ensuring the accuracy of theirappreciation of what in fact took place. I do not doubt their testimony based on this abstract reflection alone. Their testimony must beassessed concerning particular events. I recognize that I must approach their testimony cautiously. (

b) Megwan Yellowbird and Randy Cardinal [50] I will consider Megwan Yellowbird and Randy Cardinal together. I am sure that both were traumatized by what they saw thatnight. They went to Mr. Yellowbird as he lay on the pavement. They saw a brother and a friend dying. Mr. Cardinal tried to save Mr.Yellowbird and kept trying until he was forced to stop by bar security. [51] Ms. Yellowbird and Mr. Cardinal displayed great strength in testifying. If either of them was hostile to Mr. Johnson, they didnot show it. Both were sincerely trying to convey their memories about what happened. [52] Ms.

Yellowbird did not see the encounter between Mr. Yellowbird and Mr. Johnson. Her testimony was useful on thebackground to the events and their aftermath. [53] Mr. Cardinal had about 7 beers before going to the bar but only one and half while there. He admitted to having been“buzzed” and not fit to drive. [54] Mr. Cardinal’s observations of the encounter began when he was at Mr. Yellowbird’s car, some 50 metres from where theevents were occurring. Mr. Cardinal went quickly towards Mr. Yellowbird, from the West. The parking lot was slippery because offreezing rain earlier in the evening. Mr.

Cardinal was wearing dress shoes and he slipped on the icy surface. [55] In cross-examination, Mr. Cardinal admitted that in his initial description of the suspects to the police, he described them asPakistani, as dark-skinned. Both Mr. Johnson and Mr. Bolzon, who was with Mr. Johnson, are Caucasian. (

c) Miranda Anderson [56] Ms. Anderson was with another Crown witness, Jeremy Judge, on the evening in question. They are engaged and have knowneach other 8 or 9 years. [57] Ms. Anderson admitted in cross-examination to having had about 11 beers over the evening. She confirmed that she was“pretty drunk.” [58] She normally wears glasses but was not wearing them that night. [59] Ms. Anderson and Mr. Judge were near the bar doors, about 60 feet from where the events occurred. (

d) Jeremy Judge [60] Mr. Judge said that he had four drinks at the bar, but nothing before. In cross-examination he said that he did not rememberthat Ms. Anderson had been drinking before going to the bar. She’d had 5 or 6 beers before going. He confirmed that Ms. Anderson doesnot usually drink on her own. Given this evidence of the practice of Ms. Anderson and Mr. Judge as regards drinking, the unlikelihoodthat Ms. Anderson would drink a substantial amount of beer while Mr. Judge, who was with her, drank nothing, and the considerations tofollow, I find that Mr. Judge’s claim not to have been drinking with Ms.

Anderson before going to the bar was false. He’d had more todrink that evening than merely four drinks. [61] Mr. Judge also admitted to a criminal record.

He had 11 convictions between 1998 and 2012: 1998 - arson, Criminal Code s.434; 1999 – possession of property obtained by crime under $5000, Criminal Code s. 355(b); 2001- uttering threats, Criminal Code, s.264.1; 2004 – driving with more than 80mgs of alcohol in blood, Criminal Code s. 253(b), fail to comply with probation order, CriminalCode s. 733.1, mischief, Criminal Code s. 430; 2006 – fail to appear, Criminal Code s. 145(4); 2009 – assault, Criminal Code s. 266, failto attend court, Criminal Code s. 145(2), 2009 – uttering forged document, Criminal Code s. 368; 2012 – assault causing bodily harm,Criminal Code s. 276(b).

While the forgery conviction had the greatest probative value respecting Mr. Judge’s credibility, the remainderof his record also adversely reflected on his credibility. In R v Corbett, [1988] 1 SCR 670, at paras 22 - 26 ,Chief Justice Dickson made the following comments about the rationale for cross-examination on criminal record permitted under s. 12of the Canada Evidence Act: 22. …. What lies behind s. 12 is a legislative judgment that prior convictions do bear upon the credibility of a witness.

In decidingwhether or not to believe someone who takes the stand, the jury will quite naturally take a variety of factors into account. They willobserve the demeanour of the witness as he or she testifies, the witness' appearance, tone of voice, and general manner. Similarly, thejury will take into account any information it has relating to the witness' habits or mode of life. There can surely be little argument that aprior criminal record is a fact which, to some extent at least, bears upon the credibility of a witness.

Of course, the mere fact that awitness was previously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which ajury might take into account in assessing credibility. 23. This rationale for s. 12 has been explicit in the case law. See, e.g., R. v. Stratton, supra, at p. 461, per Martin J.A.,“Unquestionably, the theory upon which prior convictions are admitted in relation to credibility is that the character of the witness, asevidenced by the prior conviction or convictions, is a relevant fact in assessing the testimonial reliability of the witness.”

24. Similarly, in R. v. Brown (1978), (ON CA), 38 C.C.C. (2d) 339 (Ont. C.A.), at p. 342, per Martin J.A., “Thefact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness.” 25. An American court identified the rationale behind a similar rule in the following language: What a person is often determines whether he should be believed. When a defendant voluntarily testifies in a criminal case, he asks thejury to accept his word. No sufficient reason appears why the jury should not be informed what sort of person is asking them to take hisword.

In transactions of everyday life this is probably the first thing that they would wish to know. So it seems to us in a real sense thatwhen a defendant goes onto a stand, “he takes his character with him ....” Lack of trustworthiness may be evinced by his abiding andrepeated contempt for laws which he is legally and morally bound to obey, as in the case at bar, though the violations are not concernedsolely with crimes involving “dishonesty and false statement.” (State v. Duke, 123 A.2d 745 (N.H. 1956), at p. 746; quoted with approval in State v.

Ruzicka, 570 P.2d 1208 (Wash. 1977), at p. 1212). [62] I have not rejected all of Mr. Judge’s testimony and indeed have accepted it on certain points. When his testimony conflictswith others’ testimony, though, I have taken into account that his credibility is diminished by his criminal record. (

e) Siobhan Shred [63] Ms. Shred began the evening with a staff party at around 6 p.m., where she had 3 caesars and 2 rum and cokes. After abouttwo and a half hours, she went back to her place with some friends, where she had 2 rum and cokes. She went to the bar at about 10 p.m.and had 4 rum and cokes. She admitted to being intoxicated, although she “knew what was going on.” Ms. Shred weighed about 110pounds and stood 5’ 2”. She conceded in cross-examination that she’d had a lot of alcohol for “a woman of your size.” She conceded thatshe was in no shape to drive. [64] Aside from Mr. Johnson and Mr. Bolzon, Ms.

Shred was the closest witness to the events. She was standing near the bardoors, about 30 feet from the events, with a clear line of sight. She denied that anything, including vehicles, obstructed her observations. [65] Ms. Shred was talking on her cellphone to her boyfriend as the events began to unfold. [66] Ms. Shred misidentified Mr. Yellowbird as the “bigger man” and misidentified Mr. Johnson as the “smaller man.” I did notview this confusion as entirely fatal to her reliability. Mr. Yellowbird, although shorter than Mr. Johnson, was a big man. So was Mr.Johnson.

As will be seen when reviewing the evidence below, when Mr. Yellowbird came to Ms. Shred’s attention, he was movingquickly with his elbows out. In the stress and uncertainty of the moment, Mr. Yellowbird could have seemed to Ms. Shred to have beenthe larger man. So that is what she remembered. (

f) Amarjeet Singh Dhillon [67] Mr. Dhillon was the manager of the Menisa Liquor Store situated south of the bar. The liquor store and the bar, as well as anumber of other small businesses, share a central parking lot. The businesses with their central parking lot form a sort of shopping plaza. [68] The testimony of Mr. Dhillon had some special features.

Unlike the other Crown witnesses, he had not been drinking at all.His sobriety elevated the reliability of his observations beyond the reliability of the observations of other Crown witnesses. [69] His vantage point also differed from that of the other Crown witnesses. He watched from across the parking lot, near theliquor store, rather than from in front of the bar. He was about 60 feet from the events. [70] Mr.

Dhillon, however, alone among Crown witnesses and indeed all witnesses, was combative, argumentative, reluctant toanswer questions, and prone to explain and elaborate rather than provide straightforward answers to questions. He did not know Mr.Johnson and there was no evidence that he was motivated by any hostility toward Mr. Johnson. I suspect that Mr. Dhillon’s attitude wasthe result of his deep conviction in the accuracy of what he said he saw, and his concern that his testimony not be undermined orweakened by manipulations by Defence counsel. Mr. Dhillon was defending his version of the truth.

I must make two comments. First,absolute conviction that one is right, complete sincerity in the offering of testimony, does not entail that testimony is accurate. Beingcompletely convinced that one saw something and that something having actually occurred are two different things. Mr. Dhillon’scertainty did not enhance his reliability. His observations remained subject to the implications of distance, lighting, and obstruction, asdid the observations of the other witnesses. Second, Mr.

Dhillon’s combativeness suggested that he was taking on an advocacy role for aparticular narrative rather than serving as a reliable reporter of what he observed. The danger of a witness who becomes an advocate isthat testimony and even memory may reflect not what was, but what the witness believes should have been. [71] I have accepted Mr. Dhillon’s testimony on numerous points. When his testimony has conflicted with others’ testimony, Ihave kept in mind the impairment of his reliability by his combativeness. (

g) Michael Bolzon [72] Michael Bolzon was a friend of Mr. Johnson. He was with Mr. Johnson during the events of December 14 and 15, 2013. Hewas initially charged with murder along with Mr. Johnson, although that charge is not being proceeded with. Mr. Bolzon testified for theCrown. He did not claim the protection of s. 5 of the Canada Evidence Act although, regardless, he does have the protection of s. 13 ofthe Charter. [73] Mr. Bolzon and Mr. Johnson met in 2008. They had worked together as security at the Union Hall nightclub. Their dutieswere to ensure the safety of patrons. They played on a men’s hockey team for one season. In 2013, Mr. Johnson was dating one of Mr.Bolzon’s roommates.

[74] Five observations should be made respecting Mr. Bolzon’s testimony. [75] First, Mr. Bolzon, like the other Crown witnesses, had been drinking at the bar, although, on the evidence, he and Mr.Johnson merely shared a pitcher of beer. Mr. Bolzon, like other witnesses, would have felt the effects of the late hour. He, like them,would not have been expecting the events that unfolded. From a physical perspective, what distinguishes his ability to observe from theirabilities to observe is that he was very close to the events as they unfolded.

There was no evidence that his ability to observe wasimpaired by distance or by obstructions. He was close, so close that he pulled Mr. Johnson off of Mr. Yellowbird just before he and Mr.Johnson left the scene. [76] Second, Mr. Bolzon’s testimony supported Mr. Johnson’s testimony and conflicted with the testimony of other Crownwitnesses. I accept that the Crown had no alternative but to call Mr. Bolzon as a witness, on pain of an argument for an adverse inferencehad the Crown not done so. Regardless, the Crown was not bound by Mr. Bolzon’s evidence. By calling Mr.

Bolzon, the Crown was notendorsing his evidence and inserting fatal contradictions into the Crown’s own case. Calling a witness does impose some limitations ontactics for the impeachment of the credibility of that witness: see, e.g., R v Situ, 2005 ABCA 275; Cariboo Observer v Carson TruckLines (1961), (BC CA), 32 D.L.R. (2d) 36, 37 W.W.R. 209, 1961 CarswellBC 161 (BCCA), Sheppard JA at paras 17and 19 (CarswellBC).

However, a party calling a witness is perfectly free, as in this case, to call other witnesses to contradict thatwitness. “[B]y the end of the 18th century ‘the doctrine was clearly laid down that one's own witness could always be contradicted byothers and his error shewn:’” R v Duckworth (1916), (ON CA), 26 C.C.C. 314, 31 D.L.R. 570, 1916 CarswellOnt 203(Ont CA), Riddell J at para 56 (CarswellOnt); “A party is not precluded from calling evidence on a matter in issue by reason that itwould contradict the evidence of another witness called by that party:” Cariboo Observer at para 16 (CarswellBC).

See also (e.g.), R vBenji, 2012 BCCA 55, Rowles JA at paras 156 – 163; R v Walker (1994), (ON CA), 70 O.A.C. 148, 90 C.C.C. (3d)144, 1994 CarswellOnt 898 (Ont CA), Finlayson JA at para 31 (CarswellOnt). [77] Third, the mere fact of the friendship between Mr. Bolzon and Mr. Johnson does not, by itself, undermine Mr. Bolzon’sevidence. That relationship could provide a motivation to fabricate evidence to exonerate a friend. However, as Justice Charron warnedin R v Laboucan, 2010 SCC 12, [2010] 1 SCR 397 at para 11, [11] ….

A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going tocredibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on thebasis of the witness’s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessingcredibility. Further, “[i]t should not be assumed that this witness will be untruthful by reason of this relationship:” R v Murray (1997), (ON CA), 115 CCC (3d) 225; (Ont CA), Charron J, as she then was, at 8 .

Of course, it does not followthat Mr. Bolzon’s testimony is presumptively believable or has a degree of believability superior to that of other witnesses. Histestimony, like that of other witnesses, must be assessed in light of all the evidence and in light of common sense and contextualprobabilities. [78] Fourth, the Crown contended in argument that Mr. Bolzon was (to use my term) a reluctant witness. The Crown submittedthat “it was difficult to get anything out of him;” he used a “passive voice” and “did not want to attribute who was doing what.” Heprovided a “minimalist version” of what occurred.

Only in cross-examination did details emerge. I agree that Mr. Bolzon was terse. Yethe did not argue or explain or distract with irrelevant answers. If he was terse, he did not need to be prodded. He did not refuse to answerquestions, whether directly or indirectly by seeking to distract with irrelevant answers. His terseness doubtless reflected the fact that, asindicated above, his personal and relational interests were implicated by his testimony. [79] Fifth, W(

D) applies to Mr. Bolzon’s testimony; that is, a reasonable doubt may (but not must) arise or be contributed to by Mr.Bolzon’s testimony, taken in the context of the evidence as a whole. 3. Stefan Johnson [80] Mr. Johnson was the sole witness called by the Defence. His testimony contradicted the testimony of Crown witnesses on thecrucial issue of the number and nature of the blows he inflicted on Mr. Yellowbird. His testimony shall be considered below. Twogeneral matters should be noted. [81] First, I confirm that Mr. Johnson should not be disbelieved just because he is facing a criminal charge.

He should not beassumed to be lying just to avoid a conviction. An accused has a constitutional right to testify in his or her defence. That right would berendered a snare and a delusion if a trier of fact were to count against the accused’s credibility his or her presumed “motive to lie” toavoid conviction. Indeed, relying on such a presumption would be in effect to presume guilt.

Justice Charron wrote the following inLaboucan at para 12: [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to anaccused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. Theconcern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accusedhas a greater interest in securing an acquittal.

Therefore, any assumption that an accused will lie to secure his or her acquittal flies in theface of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. In R. v. B. (L.)(1993), (ON CA), 13 O.R. (3d) 796 (C.A.), Arbour J.A. (as she then was) succinctly described the inherent danger inconsidering the accused’s motive arising from his or her interest in the outcome of the trial.

In an often-quoted passage, she stated asfollows (at pp. 798-99): It falls into the impermissible assumption that the accused will lie to secure his acquittal, simply because, as an accused, his interest inthe outcome dictates that course of action. This flies in the face of the presumption of innocence and creates an almost insurmountabledisadvantage for the accused. The accused is obviously interested in being acquitted. In order to achieve that result he may have totestify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be

acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused’s interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur. [Emphasis added.] Justice Charron did not rule out the possibility that an accused who testifies could be found to have lied. An accused who testifies is not immunized from a finding that he or she lied in testimony.

That finding, though, must be based on factors bearing on testimony other than the presumed motive to lie to secure an acquittal. See, e.g., Laboucan at para 20 . [ 82 ] On the other hand, an accused does not raise reasonable doubts just because he or she testifies. While an accused is not presumptively unbelievable, neither is an accused presumptively believable. An accused’s testimony may be partially or completely rejected and no reasonable doubts based on his or her evidence may survive. [ 83 ] Second, as Mr. Bolzon’s testimony confirmed, Mr. Johnson had worked as a bouncer or as bar security.

Nonetheless, and despite focused cross-examination on this issue, Mr. Johnson testified to having received no special physical training, no training in hand-to-hand tactics or combatives. His testimony was that in his roles, he tried to defuse situations with words. His main jobs were to keep the peace and check identification. At some venues, he would do pat-downs or checks at the front door. He did have to break up some fights, but denied that this was a regular occurrence. He mostly served as a presence. He testified that “special duty” personnel would be hired to deal with fights. Mr.

Johnson also played hockey with Mr. Bolzon. Mr. Johnson denied that he got into fights in hockey. In men’s leagues, fighting leads to fines and suspensions. Mr. Johnson’s testimony was not contradicted by any other evidence. The evidence did not support any finding that Mr.

Johnson had any special hand-to-hand training or that he had significant experience in intervening in violent conflicts or being involved in violent conflicts. [ 84 ] With this orientation to the witnesses in hand, I can turn to the testimony, the evidence, and my evidential findings. [ 85 ] There were serious conflicts in testimony about what happened in front of JT’s Bar and Grill early in the morning of December 15, 2013.

Before I could apply the law to the facts, I had to work out what the facts were – that is to say, I had to decide what crucial facts I was satisfied of beyond a reasonable doubt and what reasonable doubts could not be dispelled respecting other crucial facts. I shall set out the uncontested facts, before dealing with the contested facts. C. UNCONTESTED FACTS 1. Admissions [ 86 ] The Defence did not contest identification, in the sense that it was Mr. Johnson who had the encounter with Mr. Yellowbird. Neither did it contest that the events took place in Edmonton, Alberta, on December 15, 2013.

These facts were established beyond a reasonable doubt. 2. Admissions under s. 655 of the Criminal Code [ 87 ] Facts alleged by the Crown and admitted by Mr. Johnson were entered as an exhibit. The admitted facts were as follows: 1. An autopsy was performed on the deceased Joseph Yellowbird on December 17, 2013. 2. The [a]utopsy report states “The decedent measures 182 cm (6 feet) in length, weighs 102 kg (225 pounds) unclothed, and is obese (body mass index = 30.8 mg/m 2 )[.]” 3.

The autopsy report further states “No skull fractures were present.” [Counsel confirmed that this statement entailed that there were no facial fractures – i.e., there were no fractures of any bones of the skull.] 4. The autopsy report further states “Postmortem toxicology analyses reveals a blood alcohol concentration of 2.3 g/l [230 milligrams per 100 millilitres] in the femoral blood, and 2.9 g/l [290 milligrams per 100 millilitres] in the vitreous”. [ 88 ] Mr. Yellowbird’s family was concerned that the autopsy report erred respecting Mr. Yellowbird’s height.

Megwan Yellowbird and Randy Cardinal both testified that Mr. Yellowbird was between 5’ 6” to 5’7” tall. Other witnesses made similar estimates about his height. I can only note and will not speculate about this issue. Mr. Yellowbird’s height was not a significant issue in the trial. I accept that Mr. Johnson stood taller than Mr. Yellowbird. [ 89 ] I note as well that Mr. Yellowbird’s blood alcohol level was high. [ 90 ] I take the admissions under s. 655 to be established beyond a reasonable doubt. 3. Background Events [ 91 ] Mr. Yellowbird and Mr. Johnson met by chance.

I will briefly review the series of events that brought them together, up to the time when their encounter began. (

a) Events Bringing Mr. Yellowbird to JT’s Bar and Grill [ 92 ] The testimonies of Megwan Yellowbird and Randy Cardinal about events leading up to the encounter with Mr. Johnson were largely consistent. The differences were not significant.

[ 93 ] Mr. Yellowbird lived in the Millwoods area of Edmonton. [ 94 ] On December 14, 2013, Ms. Yellowbird and Mr. Cardinal came into Edmonton from their home in Wetaskiwin between 5 and 6 p.m. for a staff party. There had been freezing rain. The roads were very icy. Ms. Yellowbird contacted Mr. Yellowbird, who said they could stay at his house that evening after the party. [ 95 ] At the party, Mr. Cardinal had, by his recollection, 7 beers. Later in the evening (between 1:30 and 2:00 a.m. according to Ms. Yellowbird and at about 11:30 p.m. according to Mr. Cardinal) they went to Mr. Yellowbird’s house. Ms.

Yellowbird testified that Mr. Yellowbird appeared to have had a couple of drinks, but was “sober” (not intoxicated). Mr. Cardinal testified that it did not appear that Mr. Yellowbird had been drinking. [ 96 ] They decided to go buy some beer. They went in Mr. Yellowbird’s car. Mr. Yellowbird drove. They went to 1107 Knotwood Road in the Millwoods area. A cluster of small businesses that share a parking lot is found at this location. On the South of the parking lot is the Menisa Liquor Store. On the North side of the parking lot (Northeast of the liquor store) is JT’s Bar and Grill. [ 97 ] At this point, Ms.

Yellowbird’s and Mr. Cardinal’s narratives diverged to a degree. Ms. Yellowbird testified that they went first to the liquor store but it was closed. They purchased off-sale beer at the bar. Mr. Cardinal testified that Mr. Yellowbird purchased beer from the liquor store, although he also suggested that the beer was purchased from a “guy.” He could not recall whether the beer was purchased before or after he, Mr. Yellowbird, and Ms. Yellowbird went into the bar. [ 98 ] Mr. Dhillon, the liquor store manager, testified that he refused to sell beer to an individual that I infer was Mr.

Yellowbird, because (in particular) the liquor store was closed. The timing suggests an attempted purchase after attending the bar, but creates another conflict about whether beer was sold by Mr. Dhillon to Mr. Yellowbird. [ 99 ] I attach no significance to the issues of whether, when, or from whom beer was purchased. In light of the traumatic events that followed, it could be expected that there would be some jumbling of unimportant prior events. Given what Mr. Cardinal was shortly to experience, it makes sense that his memory of these prior events would be, as he said, “hazy.” [ 100 ] Ms. Yellowbird’s and Mr.

Cardinal’s testimony was consistent respecting what happened in the bar. The group arrived at the bar late, not long before closing. Ms. Yellowbird was “carded” but did not have identification with her. She left the bar and sat in the car outside. She sat in the rear passenger seat. [ 101 ] Mr. Yellowbird and Mr. Cardinal had a beer each and split a beer that had been ordered for Ms. Cardinal. Neither Mr. Yellowbird nor Mr. Cardinal talked with anyone aside from bar staff while they were in the bar. They were in the bar for about half an hour and left just before closing. They went back to Mr.

Yellowbird’s car. [ 102 ] Terry Lee, a bouncer at the bar, testified that he thought Mr. Yellowbird had been in the bar since before 9 p.m., when he came to work. He did recall that Mr. Yellowbird was joined by two family members, who came later. It may be that Mr. Yellowbird had been at the bar earlier in the evening. That is not material. I accept that he had been at home and did come to the bar with Ms. Yellowbird and Mr. Cardinal. Their memories are more likely to be accurate on this point than Mr. Lee’s. Mr. Lee could not be expected to keep track of all patrons, particularly since Mr.

Lee’s evidence was that Mr. Yellowbird was not involved in any incidents during the evening and did not seem to be drunk, although Mr. Yellowbird did have some drinks. [ 103 ] Regardless of where Mr. Yellowbird had been drinking, the blood alcohol readings set out in the autopsy report establish that Mr. Yellowbird had consumed a significant quantity of alcohol before the events in question. [ 104 ] Mr. Yellowbird was wearing a hoodie (a hooded jacket) at the material times. (

b) Events Bringing Mr. Johnson to JT’s Bar and Grill [ 105 ] Mr. Johnson stands 6’ 1” and weighed 205 pounds. At the material times, he was wearing a black hoodie over a black long- sleeved shirt, jeans, and white shoes. [ 106 ] Mr. Johnson went to Mr. Bolzon’s home in the evening of Friday, December 14, 2013. He had been at a friend’s birthday party earlier. They contemplated going to Whyte Avenue or downtown. Because of the freezing rain, buses were cancelled and getting a cab was difficult. They decided instead to go to JT’s Bar and Grill, which was near Mr. Bolzon’s home. Mr.

Johnson denied having been drinking prior to going to the bar. Mr. Bolzon confirmed that, aside from a glass of wine that he drank, he did not recall Mr. Johnson having consumed any alcohol at his home before leaving for the bar, and that it did not appear that Mr. Johnson had been drinking earlier. [ 107 ] They drove in Mr. Johnson’s car to Menisa Liquor, where they purchased a bottle of cherry whisky and a bottle of regular whisky. Mr. Dhillon confirmed that the time of these purchases was about 1:10 a.m. on December 15. [ 108 ] They then went to the bar. They were there about half an hour, until closing.

Both testified that they shared a pitcher of beer, with Mr. Johnson clarifying that it was a “mini” pitcher, yielding a pint of beer for each of them. Mr. Bolzon played pool with a couple, but otherwise Mr. Johnson and Mr. Bolzon did not interact with other patrons. (

c) No Contact at JT’s Bar and Grill [ 109 ] There was no evidence that Mr. Yellowbird and Mr. Johnson had any interaction or even noticed one another in the bar. This was not a case in which something started inside that was taken outside. Mr. Yellowbird and Mr. Johnson left separately. They might have simply gone their separate ways. That did not happen.

D. EVENTS IN ISSUE [ 110 ] The events in issue took place shortly after 2 a.m., at around 2:03 – 2:09 a.m. (this was the time recorded for Ms. Shred’s outgoing telephone call during the events). I will work through the unfolding of events in the early morning of December 15, 2013, bearing in mind the principles respecting reasonable doubt described in part A.4 above. [ 111 ] I am aware that it would be an error of principle to carve up the encounter between Mr. Yellowbird and Mr. Johnson into discrete and impermeable fragments.

Chief Justice Fraser made the following comment in R v Kong , 2005 ABCA 255 , revd other grounds, [2006] 2 SCR 347, 2006 SCC 40 at para 99 : [99] In terms of the responsive force used, the trial judge is to consider all the force an accused used and not just fragments of it. That force should be assessed as a whole and not in stop action. Justice Lauwers made a similar observation in R v Cunha , 2016 ONCA 491 at paras 27 and 47 : [27] ..... As this court noted in R. v.

Quinn , 2014 ONCA 650 at para. 10 : “This was a fast-paced event that should have not been viewed on a frame-by-frame basis.” [47] Overall, the trial judge failed to take account of the entire situation from Mr. Cunha’s perspective – a frightened home owner suddenly confronted with armed men in his home. The trial judge artificially separated out the sequence of events relating to Mr. Massaquoi, who was carrying a shotgun, from the encounter a very short time later between the appellant and Mr. Barros, and treated them as though they were virtually unrelated events.

This is clearly inconsistent with what happened, and failed to pay sufficient attention to the factual context and to the entire tableau of the evidence. This was an error in principle in assessing self-defence. [ 112 ] While I must consider the evidence as a whole, it still makes sense to proceed sequentially. The events unfolded in real time and the defence of self-defence attaches to events unfolding in real time. My sequential approach will entail segmenting the time-line. Events took place very quickly, over a matter of minutes, with critical elements taking place over seconds. I understand that.

Yet to determine whether self-defence is available, events must be examined step-by-step, keeping in mind that each step informs the next, and that events occurring later may be relevant to understanding what happened earlier. I will consider eight questions: 1. Why didn’t Mr. Yellowbird get into the car with Mr. Cardinal and Ms. Yellowbird and drive away? 2. Did Mr. Yellowbird approach Mr. Johnson or did Mr. Johnson approach Mr. Yellowbird? 3. What was said between the two men during the approach? 4. What happened when Mr. Yellowbird and Mr. Johnson came within arm’s length of one another? 5. How did Mr.

Yellowbird and Mr. Johnson go to the ground? 6. What happened when Mr. Yellowbird and Mr. Johnson were both on the ground? 7. What, if anything, did Mr. Johnson or Mr. Bolzon or both of them do to Mr. Yellowbird after Mr. Johnson got to his feet? 8. What did Mr. Johnson and Mr. Bolzon do after leaving Mr. Yellowbird? In the following, I have identified by name the persons described by witnesses. Exact quotations are in quotation marks. 1. Why didn’t Mr. Yellowbird get into the car with Mr. Cardinal and Ms. Yellowbird and drive away? [ 113 ] Mr. Yellowbird and Mr. Johnson had no contact in the bar.

Their cars were not parked near one another. They left the bar at different times. Yet Mr. Yellowbird, who was at his car with Ms. Yellowbird and Mr. Cardinal, ended up interacting with Mr. Johnson. Why? I cannot provide a complete answer to this question. An answer is important, though, since it may bear “the relevant circumstances ... of the act,” including Mr. Johnson’s “role in the incident” (s. 34(2)(c)) and any “communication between the parties to the incident” (s. 34(2)(f.1)). [ 114 ] Ms. Yellowbird testified that Mr. Cardinal got into the car. She heard Mr.

Yellowbird say “What?” He then said he’d be right back, everything’s fine. Ms. Yellowbird was texting with her babysitter, so she wasn’t paying close attention. Mr. Cardinal testified that he heard someone talk to Mr. Yellowbird. Mr. Cardinal (who was in the car) couldn’t make out what was said. Mr. Yellowbird said “What? What do you want?” Mr. Cardinal said “Get in, let’s go.” Mr. Yellowbird said, “Don’t worry about it.” [ 115 ] Someone or something got Mr. Yellowbird’s attention. If, for example, Mr. Johnson had baited or provoked Mr. Yellowbird with some insulting comment, that would be relevant.

But the evidence did not support a finding that Mr. Johnson made such a comment. Neither did any additional evidence corroborate whether a comment was made or indicate who it was – if anyone – that had communicated with Mr. Yellowbird. It cannot be determined whether some third party or Mr. Yellowbird spoke first. The evidence does not support a finding that Mr. Johnson initiated verbal contact with Mr. Yellowbird.

[ 116 ] Mr. Johnson and Mr. Bolzon had kept largely to themselves at the bar. There was no evidence that they were boisterous or loud or attracted anyone’s attention. They had no interactions at all with Mr. Yellowbird or his family members in the bar. There was no evidence that suggested any likelihood that Mr. Johnson would seek to initiate contact with Mr. Yellowbird. [ 117 ] Mr. Johnson expressly denied saying anything to Mr. Yellowbird. He did not hear anything said by another person.

He did not hear any reference to Natives or Indians and did not say anything about Natives or Indians. [ 118 ] The Crown referred to some post-offence conduct as relevant to whether Mr. Johnson kicked or stomped on Mr. Yellowbird. This evidence was also relevant to the initial communication issue. After Mr. Bolzon pulled Mr. Johnson away, the two went to Mr. Johnson’s car. Just before they drove off, Mr. Johnson yelled “Fucking faggot!” This was a deplorable disparaging comment. It did not have any racial aspect, however. And it was yelled when, as I will detail later, Mr. Johnson was not thinking clearly.

He shouted it without thinking much at all. The comment did not confirm or support any racial bent to Mr. Johnson’s thinking. [ 119 ] I do not suggest that Mr. Yellowbird was being aggressive or had any hostile intention or that he set out to initiate some sort of confrontation with Mr. Johnson. Like Mr. Johnson and Mr. Bolzon, Mr. Yellowbird and Mr. Cardinal kept to themselves at the bar and attracted no attention. There was no reason for Mr. Yellowbird to bear any hostility toward Mr. Johnson. [ 120 ] Given what was said by Mr. Yellowbird to Mr. Johnson, which will be considered shortly, it is likely that Mr.

Yellowbird simply and sincerely wanted to borrow a cigarette and perhaps to talk. Approaching a stranger might seem an unlikely course of conduct, but Mr. Yellowbird did have a high blood/alcohol level, which likely impaired his judgment; and, as shall be seen, there were some indications that Mr. Yellowbird was, at least to those who knew him, acting in a joking manner. 2. Did Mr. Yellowbird approach Mr. Johnson or did Mr. Johnson approach Mr. Yellowbird? [ 121 ] Mr. Yellowbird’s car was parked to the West of the bar, that is, to the right as one left the bar. Mr.

Johnson’s car was South and a bit East of the bar, that is, straight ahead and a bit to the left as one left the bar. The distance between the two cars was variously estimated as about 30 – 50 metres or yards. [ 122 ] I find that Mr. Yellowbird approached Mr. Johnson. Mr. Yellowbird walked from his car to where Mr. Johnson was standing near his car. Mr. Cardinal testified that Mr. Yellowbird walked toward the man with whom he would later have the altercation. Mr. Cardinal testified that this man did not advance towards Mr. Yellowbird. Mr. Dhillon’s testimony confirmed that Mr. Yellowbird walked towards Mr.

Johnson. Ms. Shred misidentified Mr. Yellowbird as the “bigger man” but confirmed that the bigger man (Mr. Yellowbird) approached the “smaller man” (Mr. Johnson). Mr. Bolzon confirmed that he and Mr. Johnson were approached by Mr. Yellowbird, and Mr. Johnson confirmed that he was moving towards his own vehicle not towards Mr. Yellowbird, and that Mr. Yellowbird approached him. [ 123 ] Ms. Anderson’s and Mr. Judge’s testimony was erroneous on this point and I reject it. Mr. Judge would have had the “two white guys” approach the “native guy” who was “walking away.” Ms.

Anderson described one man who was trying to get into a car who was approached by another who came up behind him. [ 124 ] Further, I find that Mr. Yellowbird advanced in what appeared to be an aggressive manner. Mr. Dhillon confirmed that Mr. Yellowbird was walking quickly. Ms. Shred referred to the “bigger man’s” aggressive, macho style. Mr. Bolzon testified that Mr. Yellowbird “closed the gap” quickly and moved with an aggressive stride. Mr. Johnson testified that Mr. Yellowbird approached with his hood up, his hands in hi

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