R v Blanchard, 2016 ABQB 706

Court of Queen’s Bench of Alberta Citation: R v Blanchard, 2016 ABQB 706 Date: 20161216 Docket: 150463008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lance David Blanchard Accused Corrected judgment: A corrigendum was issued on January 3, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision o f the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ Table of Contents I.

Introduction......................................................................................................................... [1] II. Procedures............................................................................................................................ [3] III. Evidence.............................................................................................................................. [5] A. Complainant’s Version...................................................................................................... [5]

B. Accused’s Version.......................................................................................................... [30] IV. Analysis.............................................................................................................................. [55] A. Credibility and Reliability of Accused’s Evidence........................................................ [55] 1. Consistencies and Corroboration........................................................................... [55] 2. Inconsistencies....................................................................................................... [65]

a) Spontaneous Ambulation........................................................................... [65]

b) Hearing....................................................................................................... [76]

c) Living arrangements................................................................................... [81]

d) Sex............................................................................................................. [83]

e) Homeless man and soup............................................................................. [90]

f) Ms. Roth’s trip to the store........................................................................ [98]

g) The grassy patch....................................................................................... [101]

h) Entry into Apartment............................................................................... [102]

i) Grabbing the knife................................................................................... [108]

j) The fork.................................................................................................... [110]

k) Telephone................................................................................................. [112]

l) Blood on the door.................................................................................... [118]

m) Cords on floor.......................................................................................... [120]

n) Clothes on chair....................................................................................... [122]

o) Lies to the Police in February 2014......................................................... [123]

p) The mail and the locked door.................................................................. [126]

q) Limited funds.......................................................................................... [127]

r) Computer download................................................................................ [129]

s) Barbara Roth’s Testimony in General...................................................... [130] 3. The Accused’s Exculpatory Statements.............................................................. [132] 4. Conclusion on the Credibility and Reliability of the Accused............................ [143] B. Credibility and Reliability of Complainant’s Testimony.............................................. [144] 1. Complainant’s status after the incident............................................................... [144] 2.

Drug use............................................................................................................... [151] 3. Consistencies and Corroboration......................................................................... [187] 4. Inconsistencies..................................................................................................... [201] 5. Remanding of the Complainant........................................................................... [228] 6. Conclusion on the Credibility and Reliability of the Complainant...................... [239] C.

The Facts....................................................................................................................... [242] D. Negligent Investigation................................................................................................. [251] 1. Seizing and searching the Accused’s Computer.................................................. [259] 2. A towel and feathers on the bathroom floor........................................................ [260] 3. Seizing the telephone........................................................................................... [265]

4. The Complainant’s bag........................................................................................ [267] 5. Fingerprinting the balcony and fridge and testing the hallway for DNA........... [268] 6. Evidence from a Medical Examiner..................................................................... [270] 7. Blood stain pattern............................................................................................... [271] 8. Continuity of the knife, fork, shoes and socks.................................................... [274] 9. Testing the crack pipe found by Ms.

Roth........................................................... [278] 10. The Police did not search for a black handled knife............................................ [281] 11. Drug use by the Complainant.............................................................................. [282] 12. Conclusion on Bias and Negligent Investigation................................................. [283] E. W(

D) Analysis.............................................................................................................. [287] F. The Charges.................................................................................................................. [293] 1. Attempted Murder: Section 239(1)(b)................................................................. [294] 2. Kidnapping: Section 279(1)................................................................................. [300] 3. Unlawful Confinement: Section 279(2)............................................................... [306] 4.

Aggravated Sexual Assault: Section 273(1)........................................................ [314] 5. Possession of a Weapon: Section 88(1)............................................................... [321] 6. Threat to Cause Death or Bodily Harm:

Section 264.1(1)(a).............................. [326] 7. Breach of Condition: Section 145(3)................................................................... [331] 8. Breach of Condition: Section 145(3)................................................................... [333] 9. Failing to Comply with a Condition: Section 145(3)........................................... [340] V. Conclusion....................................................................................................................... [343] VI.

Postscript.......................................................................................................................... [346] I. Introduction [ 1 ] The Accused, Lance David Blanchard, faces nine counts including: attempted murder, kidnapping, unlawful confinement, aggravated sexual assault, possession of a prohibited weapon, uttering threats to cause death or bodily harm and three counts of breaching conditions of a recognizance. [ 2 ] The Complainant testified at the Preliminary Inquiry into this matter in June 2015. She was shot and killed in an unrelated matter on December 12, 2015.

Her Preliminary Inquiry testimony was admitted as evidence in this trial: R v Blanchard , 2016 ABQB 652 . II. Procedures [ 3 ] This matter was scheduled as a five week trial beginning on October 3, 2016. Subject to a future stay application the Defence advised it will be bringing, the trial now concludes 11 weeks later with these reasons. There were a total of 60 witnesses, some of whom testified twice. Many were required and many were not. The evidence of some could have been entered by agreement. There were many issues addressed by way of voir dires and applications.

They resulted in numerous oral decisions and seven written ones: • 2016 ABQB 520 ( Mills Application #1) • 2016 ABQB 615 (Prior Consistent Statements of Accused) • 2016 ABQB 630 ( Mills Application #2)

• 2016 ABQB 652 (Admissibility of Preliminary Inquiry Testimony) • 2016 ABQB 666 (Admissibility of KGB Statements) • 2016 ABQB 679 (Accused Exculpatory Statements to the Police) • 2016 ABQB 685 ( Mills Application #3) . [ 4 ] The length of this trial and the failure of counsel to properly estimate its anticipated length has resulted in a considerable additional expenditure of the Court’s limited resources. Scheduling for this Court was greatly affected, and some previously scheduled matters had to be adjourned.

In future, counsel must spend the time necessary to work together, agree on those things that are not in dispute, prepare to litigate those things that are in dispute, and properly assess the time required for trial. III. Evidence A. Complainant’s Version [ 5 ] The following

summary is based on the Complainant’s Preliminary Inquiry testimony, unless otherwise indicated. The Complainant testified at the Preliminary Inquiry between June 5 and June 10, 2015. She was shot and killed in an unrelated incident on December 12, 2015. Following a voir dire , the Preliminary Inquiry testimony of the Complainant was admitted into the trial proper pursuant to s. 715 of the Criminal Code ( R v Blanchard , 2016 ABQB 652 ). [ 6 ] The Complainant began her Preliminary Inquiry testimony on June 5, 2015. She was clearly agitated and aggressive.

She showed animosity to the Accused and resented being in his presence. Her perceived lack of focus and cooperation, as well as a perceived belief that she would not voluntarily reappear, resulted in an Order remanding her into custody until the conclusion of her testimony, which was on June 10, 2015. [ 7 ] In June 2014, the Complainant was 27 years old. She was just over 5’0” tall and weighed 109 pounds.

She had grown up in Maskwacis, moved to Edmonton when she was 14 years old, completed Grade 12 and had been homeless and living on the street off and on for some time. [ 8 ] The Complainant testified that she began her day on June 16, 2014 after waking up at a friend’s house in the afternoon. She left her friend’s house and started walking. She was hungry and tired. [ 9 ] The Complainant walked to a daycare located around 106 Avenue and 110 Street in Edmonton. She had a box of noodles and asked a woman at the daycare if they could prepare it for her as she was “starving”.

Instead, the woman gave her some soup and crackers and a bowl. She also gave her a banana and an apple. [ 10 ] A daycare worker called by the Crown spoke to such an interaction on this date, and described the Complainant as being mild mannered and polite. [ 11 ] The Complainant ate the soup on the front steps of the daycare. [ 12 ] She then walked to a second daycare, next door to the first, with a playhouse on the grounds. She went into the playhouse, laid down and fell asleep. She was awakened by people from the daycare. [ 13 ] Those who woke her described her as being confused and apologetic.

The Complainant then walked away. This occurred between 2:30 p.m. and 3:00 p.m. according to those at the second day care. She was described as being “normal” and “understandable”. [ 14 ] The Complainant then walked towards an apartment building near 106 Avenue and 111 Street where the Accused happened to be a resident. She tried to get in the back door of the building but it was locked. She laid down and fell asleep on some nearby grass. [ 15 ] At some point, she saw the Accused walking a black dog, which she described as a “German Shepherd crossed”.

The Accused asked her if she wanted anything or needed medical assistance and she responded that she would like him to heat up some soup that she had in her bag. H e took it and a few minutes later brought it back to her. She said it was not cooked. When he brought it back, he was still with the dog. He walked away and she fell asleep again. [ 16 ] At some later point, the Accused returned and they had a brief conversation. He asked her if she wanted to come inside and warm up.

In no uncertain terms, she told him she did not want to do so. [ 17 ] The Complainant waited for the Accused to leave and then fell asleep again in the grass. She began getting cold and looked for a way to get into the back door of the apartment building. She saw a fellow opening the door, lied to him by stating that she was going to visit a friend, and he let her in. Once inside, she stayed on the stairs near the bottom and began singing a song to herself (“This Little Light of Mine”).

She then fell asleep. [ 18 ] The Complainant said that the Accused “came out of nowhere” and began pulling her by the hair and telling her to “shut the fuck up”. He held a red knife in his hand which twice touched the side of the Complainant ’s head. She described the knife as a “meat shearing” knife - a type of knife with which she was familiar, having worked at a meat plant. [ 19 ] The Complainant said that the Accused stabbed her once in the temple as he was dragging her towards his apartment. She kicked at one door along the hallway and tried the doorknob on another but no one responded to either attempt.

The Complainant said she was “scared out of [her] wits”.

[ 20 ] The Accused forced her into his apartment. Once inside the apartment, she said “all hell broke loose”. The Accused told her to do as he said and he would not kill her. The Complainant was able to free herself from the Accused and tried to run away from him. At one point, she ran past a drawer in the kitchen and tried to grab a knife but was unsuccessful. He caught her and took off the Complainant’s jacket and another top, leaving her wearing pants, a tank top and a grey hoodie.

She said he was holding a black handled knife with a silver blade and threatened her with it while he forced off her jacket and top. At some point, she was able to grab a fork and a portable phone, the latter which she took off a table in the living room and hid in the sleeve of her top. [ 21 ] The Accused then bent the Complainant over the couch. She said that she was face down with her “ass in the air”. He was behind her with a knife and was caressing parts of her body including her buttocks and her vagina over her clothes. He reached under her tank top and felt her breasts.

The Complainant remained still because she was “scared shitless”. The Accused took off her shoes and socks and she said that he started sniffing her socks. He tried to remove her pants and threatened to kill or stab her but she fought and kicked and was able to keep her pants on. [ 22 ] The Accused then threw the Complainant onto the ground and said that he was going to make her ugly and stick her in a closet. He began banging her head on the floor and attempted to tie her up with electrical cords.

She identified the cords that were lying on the floor of the apartment from a photo of the scene. [ 23 ] After the Accused banged her head on the floor, he tried to stab her in the chest. The Complainant put up her left hand to protect herself. She suffered a stab wound to the palm of her and began bleeding profusely. [ 24 ] The Complainant believed she had dropped the fork when thrown to the floor. She regained it while on the floor. While the Accused was on top of her on the floor, he pulled out his erect penis, and put it close to her face. She bent the fork and tried to stab him in the penis.

She did not know whether she made contact. [ 25 ] The Accused tried to tie up the Complainant’s legs and push her into a linen closet in the hall. She was able to reach the doorknob on the front door of the apartment and attempted to open it. However, the blood on her hand caused it to slip off the doorknob. [ 26 ] After the Accused tried to tie her up, and was still on top of her on the floor, she was able to dial 911 and put the phone on speaker. She then threw it. The Complainant began screaming for help and the Accused told her to “shut up”. She continued to scream.

He put his hand on her mouth and she bit him. At some point, she also hit his arm. [ 27 ] After the Accused had taken his penis out and the Complainant had tried to stab him, he told her that he was going to throw her off his balcony, head first. He also said that he was going to cut her up. However, the balcony door was never opened as far as she knew and she never touched it or entered the balcony. [ 28 ] The first police officers arrived at the scene around 6:18 p.m. and Emergency Medical Services arrived very shortly after. The Complainant was taken to the Royal Alexandra Hospital and seen by Dr.

Moritz Haager at around 8:00 p.m. She had a stab wound to the palm of her left hand, various other lacerations to both hands and dried blood on her face. She received a total of 27 stitches in her left hand as well as some stitches to a finger on her right hand and three or four stitches around her right ear. There were marks around her throat where she testified she had been strangled by the Accused when he tried to quieten her after the 911 call. [ 29 ] At the time of the Preliminary Inquiry, the Complainant’s left hand, inside her palm, was still numb.

She had some feeling in the tip of her thumb but no feeling in the rest of it. Her right arm was numb up to her elbow. There were no other permanent marks or injuries as a result of the incident, though she testified to back pain resulting from his slamming her head on the floor. She testified that she had suffered from nightmares relating to the experience. B. Accused’s Version [ 30 ] The following is based on the Accused Lance Blanchard ’s trial testimony, unless otherwise indicated. [ 31 ] The Accused is now 59 years old. [ 32 ] On June 16, 2014, he was 6’ 7¾” tall and weighed 260 pounds.

He had been in jail in the Prince Albert Penitentiary and was released on October 11, 2013. He moved to Edmonton and into an apartment around 106 Avenue and 110 Street in early January 2014. [ 33 ] Barbara Roth is 56 years old. She married the Accused in 1987 while he was in jail but divorced him in 1988. She made contact with him around the beginning of June 2014. Ms. Roth testified that she went to Vanderhoof, BC on June 8 for about a week to retrieve a bus that she owned and in which she and the Accused were planning to live after a planned move to New Norway around June 24, 2014. [ 34 ] Ms.

Roth did not have a key to the Accused’s apartment. In order to gain entry, she would climb onto the yellow pipe protecting gas lines in the back of the apartment building, reach up and grab the railing on the balcony outside the Accused’s apartment and pull herself up, and then climb over the railings onto the balcony. She would then walk in through the balcony door. She also left the building by climbing down from the balcony as the hallway to the back door was “too hot”. [ 35 ] The Accused testified that on June 16, 2014, he and Ms.

Roth got up in the morning and one of them went down to her truck, where she kept her dog, and let him out to go to the bathroom. Ms. Roth went to work. The Accused had no other specific recollection of doing anything that morning. [ 36 ] The Accused had a vague memory that he went out with Ms. Roth in the afternoon but he was not sure. He did remember her returning from work, and honking her horn from outside his balcony. He went on to the balcony and she told him to go outside to walk her dog. He left the apartment and walked out the back door of the building to retrieve the dog which stayed in Ms.

Roth’s truck, and began walking it. He said that Ms. Roth, as usual, then climbed up the yellow gas barrier on the ground below his balcony, onto the

balcony and into his apartment. [ 37 ] While walking the dog, the Accused noticed a fellow looking for things in a blue bin or dumpster near the apartment building. The fellow pulled a clear bottle out of the dumpster as well as a can. The Accused took the can and a Tupperware bowl from him and reached between the balcony rails and handed them to Ms. Roth. She then brought the bowl back a few minutes later with warm tomato soup. The container that was used for the soup was then identified by the Accused as being on top of the chair in a photo of the living room in his apartment.

He had no explanation for how that bowl, which he said belonged to the unknown man, could have found its way back into his apartment. At no time did he see the Complainant. [ 38 ] Ms. Roth then let the Accused back into the suite. He sat in his computer chair, sent an e-mail to his lawyer at 5:44 and another e-mail to Elizabeth Leenheer. He then started to download the movie Robo Cop 3. [ 39 ] The balcony doors are in front of one of the two computer tables.

The left half of the balcony window is directly in front of one table while the right half, which includes the balcony door, is to the immediate right of the table. The photographs show the curtains closed and a big cardboard box partially in front of the left side of the balcony door as well as a fan on a box on the right side of the balcony door. They also show wooden blocks used by the Accused to lock the balcony door. [ 40 ] The Accused testified that he and Ms. Roth decided to watch a movie and she began cooking a meal. She ran out of some ingredients and said that she was then going shopping.

They got into an argument because she wanted to buy brand name products but he did not, as he says he could not afford them. The Accused testified that Ms. Roth exited through the balcony. As she had already started eating, he then did so as well. [ 41 ] The Accused said that while sitting at the computer, he heard the fridge door close in the kitchen. He yelled for Ms. Roth as he thought she had returned. He looked and saw that it was the Complainant. This was the first time he saw her. He said that she must have come in the balcony, as the door to the apartment was locked by Ms.

Roth when she came back from getting mail sometime before she left out the balcony to go shopping. [ 42 ] The Accused said that he asked the Complainant who she was and she replied that she was cold. He told her she had to get out because his wife was coming home. He said that he had to repeat it to her. According to the Accused, she also said something like “I’m coming down from crack” or “I’ve just done crack”. [ 43 ] The Accused said that the Complainant started running towards the bathroom and he ran around by the computers as fast as he could to try and grab her.

She went into the bathroom and closed the door and said that she wanted water. He told her to come out and she refused saying that he would “do something”. He said he would not. [ 44 ] The Accused heard the Complainant turn on the water and he grabbed the phone that was sitting on the bed. She came out of the bathroom and he ran after her and chased her around the apartment. He finally grabbed her.

He saw that she had a package of Kraft Dinner in her bag and he believed that she had stolen it from the bottom drawer in his kitchen. [ 45 ] The Accused caught the Complainant and said that he pulled her towards the balcony. He said he picked up the red knife off the computer table, which he said he had been using to cut bread, to cut the handles off the bag the Complainant was carrying. The Complainant put her hand forward and he “accidentally” cut her when she tried to grab the knife.

He then dropped the knife. [ 46 ] The Accused testified that he then picked up the phone while the Complainant was flailing her arms. He said that he was calling the police and the Complainant knocked the phone out of his hand. He then yelled into the speaker of the phone that the Complainant wanted to rob him. After she knocked the phone out of his hand, she pulled his arm down and bit him on the forearm.

He said that he then banged her head on the floor so she would release her teeth from his arm. [ 47 ] The Accused says that he never had a black handled knife with a silver blade. [ 48 ] He also testified that the telephone was never in the possession of the Complainant. He did not explain how it had her blood on it. [ 49 ] The Accused identified in photos the various cords on the floor and computer parts and said that they came out of the linen closet. He does not know how they ended up on the floor and testified he never did try to tie the Complainant up with the cords.

He said that it would have been impossible to put her in the linen closet, as she had testified at the Preliminary Inquiry, because it was too small. He did not know how her shoes and socks came off, nor how her jacket and top came off. [ 50 ] The Accused said that the bent fork shown on one of the tables was not his. He did not know where it came from. He testified that she never did stab him in the penis or try to do so. [ 51 ] The Accused denied stabbing the Complainant in the head or anywhere else, except when he accidentally cut her when she put her hand forward and tried to grab the knife.

The Accused denied any attempt to sexually assault the Complainant. He also said that it would have been impossible for him to lower his pants to expose his penis as he was using a wire to hold them up. He used wire as he could not afford a belt. He said that he did not undo the zipper. The Accused also gave evidence to the effect that he was impotent and therefore unable to have sex. [ 52 ] The Accused testified that as of June 16, 2014, he had very good upper body strength and endurance. He was able to lift his own weight and do a pullup.

In prison, he was trained to box and he studied martial arts and kick boxing. He had been in excess of 100 fights in prison. He testified that if he had wished to punch the Complainant, he would have knocked her out or severely broken the bones in her face. If he slammed her head into the floor, she would have passed out. If he tried to stab her or kill her, she would be dead. He testified that he only used the force he felt was necessary to get her to leave. He did admit that, at one point, he had his hand on her neck to hold her down.

[ 53 ] A video of the apartment taken on June 19, 2014 by Ms. Roth and her son, Tyronne Brown, shows the Accused’s glasses on the table. He said he had removed them because he did not want to “fight any one with his glasses on”. He also pointed to three objects, including feathers, which were on the bathroom floor. He said they did not belong to him. He suggested that these must have been dropped or left by the Complainant when she was in the bathroom. [ 54 ] The Accused also testified to the Complainant’s behaviour at the Preliminary Inquiry.

On the first occasion, as she was led out of the courtroom past him, she appeared scared of him. On subsequent occasions, she made smart remarks and was joking as she walked by him. She also looked around the screen behind which she testified to see him, and on various occasions while in cells or at the Remand Centre would threaten him and yell at him, calling him a pedophile or sex offender. Other inmates would join in with her. She told him that she was telling others to have him killed. IV. Analysis A. Credibility and Reliability of Accused’s Evidence 1.

Consistencies and Corroboration [ 55 ] Very little of the Accused’s version of the circumstances giving rise to the charges is consistent with, or corroborated by, any independent evidence or physical evidence at the scene. Three substantive points, however, were seemingly consistent with the testimony of Barbara Roth. [ 56 ] The Accused testified that the Complainant said either that she had just done crack cocaine or was coming down from it. Ms. Roth gave evidence that she found a crack pipe in the apartment on June 23, 2014, one week after the incident occurred.

I do not believe the evidence of the Accused as I will discuss below, nor do I believe the evidence of Ms. Roth on this point. Further, even if I believed Ms. Roth’s evidence, I would not find it to corroborate the Accused’s evidence as to what the Complainant said. [ 57 ] The police had walked through the apartment and searched it on June 16 and 17, 2014. They did not find a crack pipe. Ms. Roth was in the apartment after the incident on June 16, 2014. She walked through the apartment and videotaped it on June 19, 2014. She did not see the crack pipe on either occasion.

She testified that on June 23, 2014, she went to the apartment to watch the John Howard Society pack up all of its contents and remove them. As depicted in the photos of the scene taken on June 16 or 17, 2014, there appears to be a tangled bundle of wires or cables beneath a pair of Croc shoes near the couch. On June 23, 2014, for some inexplicable reason, prior to John Howard arriving, Ms. Roth lifted up the bundle of tangled wires and a pipe dropped out. She picked it up, and tossed it to her son who then returned it to her. She wrapped it up in a paper towel, and put it in her pocket. Ms.

Roth testified that she then took the pipe to her bus, which she had retrieved from Vanderhoof, BC a week or two earlier and which was now located in Edson. She put the crack pipe on top of a shelf. [ 58 ] Ms. Roth testified that she then contacted the lawyer for the Accused who instructed her to send it to him. She took the pipe, placed it in an eyeglass container and sent it to the lawyer within one week of finding it. The note that accompanied the eyeglass container was dated December 12, 2014, about six months after she said she found it.

She could not explain this lapse of time. [ 59 ] I find that the evidence of Ms. Roth on this point was fabricated. The police and Ms. Roth had previously searched through the apartment and no one had found the crack pipe. Nothing in the Complainant’s or the Accused’s versions of the events suggests that the Complainant was holding a crack pipe or took one out of her bag at any point, nor that one fell out of her bag. Nothing in either version could then lead to a crack pipe in the possession of the Complainant finding its way into, and hidden in, a tangled maze of wires beneath a pair of Croc shoes.

I conclude that the crack pipe was either planted by Ms. Roth at some point prior to her finding it on June 23, 2014, or it was never in the apartment, and she obtained it at a later date and lied about finding it in the apartment. [ 60 ] I would note that the apartment was accessible to Ms. Roth after the incident in question, and without the necessity of her climbing through the balcony. She testified that she retrieved the keys to the apartment from the Remand Centre. She clearly had the keys on June 19, 2014 when she and her son Tyronne took the video tape of the apartment.

She also had the keys on June 23, 2014 when she attended to monitor the John Howard Society and the day on which she says she found the pipe. She kept the keys between those dates. [ 61 ] Even if I accepted that Ms. Roth found the crack pipe in the apartment, there is simply nothing in the evidence linking it to the Complainant. As I have noted, nothing in the Complainant’s or the Accused’s versions of the events suggests that the Complainant was holding a crack pipe or took one out of her bag at any point, nor that one fell out of her bag. [ 62 ] Ms.

Roth testified that on June 19, 2014, she found feathers and other items on the bathroom floor, which are depicted on the video taken that day by her and her son. It is also my view that those items were planted there by Ms. Roth. Once again, the police searched the scene on June 16 and 17, 2014. Photos taken of the bathroom during that time show towels on the floor, but none of the other items depicted in the video tape taken by Ms. Roth and her son on June 19, 2014.

While comparing the photos with the video tape is not conclusive, I simply do not accept the suggestion that the other items were there on June 16, 2014. [ 63 ] The last piece of substantive evidence given by Ms. Roth to support the evidence of the Accused related to their sexual history. The Accused testified that he was unable to have an erection due to prostate problems in 2013 and 2014. Ms. Roth confirmed this evidence though she also testified that she had asked for, but was denied, “home” or “family” visits with the Accused in 2013 when she was in Prince Albert and he was still in prison.

I discuss this further below. It suffices to say at this point that I do not believe that whatever problems he may have had resulted in his inability to have sex, but even if they had, the evidence reveals that they did not stop him from repeatedly trying to do so. [ 64 ] In short, there is limited evidence corroborating critical aspects of the Accused’s version of the events, but I find that evidence

is not credible and I believe it to be fabricated, either at the behest of the Accused, or out of some benevolent attempt by Ms. Roth to exculpate him. 2. Inconsistencies

a) Spontaneous Ambulation [ 65 ] The first obvious lie told by Blanchard relates to his ability to walk. He led everyone to believe that he was incapable of walking at all and was confined to a wheelchair. Indeed, not one person who testified knew that he could walk. The police, Elizabeth Leenheer, his ex-wife (Barbara Roth) and her son Tyronne Brown, all believed he was confined to a wheelchair, though a couple of them said he could move from a chair to his wheelchair and take a step. Ms.

Roth testified that she visited him while he was in the Prince Albert Penitentiary and she never saw him walk during the 150 visits she made in the five months prior to June 2013. He may have mentioned on October 16, 2013 to Det. Hayduk that he had some mobility but he never exhibited any ability to actually walk to anyone who saw him after his release. [ 66 ] The Accused was recorded to be running and walking on security videos taken on February 25, 2014. He was also seen walking by Joseph Aloneissi, the owner of a local convenience store, who had also believed that the Accused was wheelchair bound. Mr.

Aloneissi testified that the Accused told him not to tell the police that he could walk. [ 67 ] Elizabeth Leenheer, who had been assisting the Accused since he was released from prison, testified that she spent considerable time with the Accused and visited him in his apartment around 50 times. She or her husband chauffeured the Accused in their car, took him shopping and helped him set up his apartment. At no time did he walk, nor did they have any idea that he could walk. [ 68 ] The Accused testified that Ms. Leenheer was present when he told Det. Hayduk that he had some mobility, but Ms.

Leenheer denied being there and Det. Hayduk did not remember her being there either. On February 26, 2014, Ms. Leenheer received a call from him confessing that he could actually walk. He told her that he had lied to the police. He also confirmed to her that he had never told her, and tried to explain his reasoning. [ 69 ] In any event, regardless of what he might have said to Det.

Hayduk, it was clear that he had been maintaining a façade of being completely unable to walk to all who knew him. [ 70 ] On April 21, 2014, two City of Edmonton Police Constables (Lewis Neufeld and Roman Crobar) witnessed the Accused wearing a hoodie walking towards them along 107 Avenue around 107 Street in Edmonton. He was compelled to then admit to the officers at that time that he could “walk a little” and that he was “stretching his legs”, but I note that this location is at least four or five blocks from his residence. [ 71 ] The Complainant testified that she saw him walking a dog.

Three of the tenants in his apartment building (Daniel Asiamah, Elizabeth Harrison and Robert Lloyd) all testified that they too had seen him walking at different times. [ 72 ] Ms. Roth testified that she returned to the apartment around 4:30 p.m. on June 16, 2014 and entered the apartment in her usual fashion, through the balcony door. She told the Accused to take her dog for a walk as the dog was left in her truck at all times. The Accused walked out onto the second floor balcony and climbed down. On his return, he climbed back up onto the balcony and into the apartment.

Of course, this is inconsistent with her earlier evidence that he was essentially confined to his wheelchair. [ 73 ] The Accused acknowledged that he chased the Complainant around the apartment on foot and he tried to throw her out by the balcony. [ 74 ] The Accused testified that he only learned he could walk on February 25, 2014. His story was that he was on the ground and was able to see, from a distance, a male who had robbed him carrying a case of beer. He noticed some feeling in his legs, rolled over and was able to stand.

In what can only be described as a “Eureka, it’s a miracle!” moment, he then ran to the individual, caught him, kicked him and beat him up (as he told Mr. Aloneissi), grabbed the beer and walked to the liquor store from where he believed the person had bought it. A case of spontaneous ambulation. [ 75 ] The Accused suggested that the reason he did not want people to know that he could walk was because it would impact on the conditions of his release or recognizance. However, he did not specify which conditions might be affected by his mobility. I find his explanation to be nonsense.

Pretending to be confined to a wheelchair would seem to be a ridiculously heavy price to pay to somehow avoid particular (and unspecified) conditions of release. It is not apparent from the terms of his recognizance that he somehow benefitted from claiming a disability.

b) Hearing [ 76 ] The Accused wore hearing aids or ear buds during this trial as his hearing is poor. He testified that in June 2014, his hearing was good. [ 77 ] Ms. Roth testified that the Accused was very hard of hearing in June 2014. She said that she often had to yell at him from two or three feet away. She testified that he could not hear the doorbell to the apartment, a knock on the door, water running in the bathroom or kitchen or the opening of the oven door. She said he would not have been able to hear the opening and closing of the fridge door.

He could not hear the telephone ringing, when it was on a coffee table only a couple of feet behind his chair at the computer table. [ 78 ] I believe the evidence of Ms. Roth in this respect. She gave this evidence clearly not knowing what the Accused would say. Most of her critical evidence appeared to be tailored to assist the Accused, whereas this did not. [ 79 ] There was no evidence that the Accused was wearing hearing aids on June 16, 2014. Given all of the evidence, I do not

believe his evidence that he heard the fridge door close in the kitchen and that is what caused him to look up and see the Complainant. Further, I do not believe the Accused’s testimony that he heard the Complainant say from the kitchen that she had either just done crack cocaine or was coming down from it, or that it was cold and snowing outside and that she was hungry.

Finally, I do not believe his evidence that he heard water running in the bathroom at any time while the Complainant was in his apartment. [ 80 ] I accept that the Accused may have heard the Complainant tell the police that it was cold and snowing outside when the officers arrived on scene because he was sitting close by at the time.

c) Living arrangements [ 81 ] The Accused and Ms. Roth both testified that she was living in the apartment with him. Ms. Roth said she arrived there around the beginning of June 2014. On June 8, she left and went to Vanderhoof, BC for a “week or two” (it was likely a week as she was back by June 16). She had no belongings in the apartment whatsoever. She kept all of her belongings in her truck. She did not have a key to the apartment. She apparently preferred climbing up and down the balcony to enter and leave because the hallway was too hot. While only a small point, Ms.

Roth also testified that she had never seen the Accused eat bread. This seemed an odd statement given that he was apparently sitting at the computer table about to slice a loaf, suggesting that eating bread was not an activity foreign to the Accused. [ 82 ] I do not believe that the Accused and Ms. Roth were living together around June 16, 2014. I believe the Accused fabricated this story to provide a false premise for her supposed confirmation of certain facts the Accused believed important for his defence. I further believe that the Accused directed her to give this evidence.

I do accept that they saw each other periodically and perhaps were going to move together to New Norway as they testified. But I do not believe they were living together as they suggested at or around June 16, 2014. At most, she visited him that day and likely a few times between the beginning of June and June 8, when she left for BC.

d) Sex [ 83 ] The Accused testified that he could no longer have sex as he was experiencing prostate problems in 2013 and 2014. He said that he never had a sexual relationship with Ms. Roth and could not have an erection. [ 84 ] Ms. Leenheer testified that the Accused had told her that he was looking for someone to share his apartment for free, in exchange for providing him with sex. She expressed her disapproval, but he replied that he was very lonely. [ 85 ] In February 2014, the Accused placed an ad on Kijiji offering to provide free accommodation in exchange for sexual services.

In his telephone conversation with Ms. Leenheer on February 26, 2014, following an alleged robbery of him on February 25, 2014, he advised her that the woman involved in the robbery was someone whom he had arranged to meet through Kijiji. The woman was to move into his apartment and provide him with sex. He told Ms. Leenheer of the negotiations that took place and that she was “100% behind it” and, while there was “a certain style [of sex] that she wasn’t interested in”, she was “game for” everything else. This conversation was recorded by Ms. Leenheer. [ 86 ] According to Mr.

Aloneissi, the Accused had also approached him, asking him whether he knew of someone who would be interested in free accommodation in exchange for services. The Accused later introduced Mr. Aloneissi to the woman he met on February 25, 2014, before the alleged robbery. [ 87 ] On April 23, 2014, police went to arrest the Accused at his apartment for breaching conditions of his release. There was a woman in the apartment who had been there for four days to provide him with sex and companionship.

I do not believe his evidence now that he was unable to have sex at the time. [ 88 ] In short, I do not believe the testimony of the Accused or Ms. Roth to the effect that he was impotent. However, even if he was, he clearly continued in his attempts to engage in sexual relations with women. [ 89 ] I find that the Accused gave this evidence in an attempt to suggest he could not, or would not, have sexually assaulted the Complainant.

e) Homeless man and soup [ 90 ] The Accused testified that he took a can from a man who retrieved it from a dumpster near his apartment building. The Accused said he did not know what was in the can. He described the person as being native, between 50 and 60 years old with peppered hair and a scruffy beard. The fellow was between 5’7” and 5’9” tall and was wearing a jacket that the Accused was able to describe in detail. He also described the man as being homeless and a bottle picker. [ 91 ] The Accused said he took the can and a Tupperware bowl from the man and volunteered to get it opened and heated for him.

He called for Ms. Roth who came out on to the balcony and took the can and bowl. She went into the apartment for a few minutes and then brought the bowl back out with warm tomato soup in it. She handed it to the Accused who then handed it to the fellow who then left. [ 92 ] The Accused said that the man had waited at the yellow piping for Ms. Roth to bring the bowl of soup. Even though the piping is very near the balcony, and Ms.

Roth went onto it twice, she said she never saw him. [ 93 ] The same bowl can be seen in the photos of the Accused’s living room on a chair, and was identified by the Complainant as the one the Accused took from her. The Accused said he did not know how it ended up back in the apartment, but he maintained that it belonged to the homeless man who walked away with it. Ms.

Roth testified that the Accused did not bring it back in when he returned. [ 94 ] I note that the Accused testified to only a vague memory of events that took place in the afternoon, and yet he provided a detailed and precise description of a homeless person he saw for only a few minutes. This is a person who, despite waiting for his soup

and sitting on the yellow piping visible from the balcony, was never seen by Ms. Roth. [ 95 ] The Accused said that in all his time outside walking the dog and interacting with the “homeless” man, the Complainant was not there.

There is no rational or logical explanation then for how she was able to accurately describe the Accused’s actions and, particularly, his dog. [ 96 ] Finally, there is no explanation from the Accused as to how that bowl could have ended up back in his apartment if the man had walked away with it as he testified. [ 97 ] I reject the evidence of the Accused and again believe it to be a fabrication designed to support a false claim that he never saw the Complainant before she appeared in his apartment.

f) Ms. Roth’s trip to the store [ 98 ] The Accused testified that Ms. Roth left partway through her dinner as she was missing some ingredients. Ms. Roth testified that she was not missing any ingredients and needed nothing more to finish making or eating dinner. [ 99 ] Ms. Roth did testify that she was planning to go to the store to pick up Cheez Whiz and eggs. However, rather than returning to the apartment as the Accused said he expected, she went to visit her son Tyronne and his wife.

She received a call there a couple of hours later advising that the Accused had been arrested and was in jail. [ 100 ] I believe her evidence makes it clear that the Accused was not expecting her to return anytime soon, and certainly not to finish preparing the meal.

g) The grassy patch [ 101 ] T he Complainant testified that she was sleeping on a grassy patch near the back door. The Accused said that he never saw the Complainant, as he walked the dog on the asphalt. Ms. Roth did not see him walk the dog that day, but testified that he always walked the dog to the patch of grass, as that is where the dog went to the bathroom. There was no suggested or apparent reason for the Accused to do something different from what he routinely did. If he did so, then he would have seen the Complainant.

h) Entry into Apartment [ 102 ] The Accused testified that the Complainant must have come in through the balcony. That would have required her to climb on to the yellow pipe guard, reach up to the balcony railings, and then climb up and over the railing. She would have then had to walk across the balcony to the door, and take a big step up and over the door rail into the apartment. She then would have had to avoid a cardboard box in front of part of the door and a box with a fan just to the left of the door (facing it from the balcony).

She would then have had to navigate a path on the wooden floor to a kitchen she had never seen or been to before. [ 103 ] The Complainant would have had to have done all of this without the Accused noticing her from his seat a few feet away at the computer table. She would also have had to continue entering the apartment and looking for the kitchen after seeing the Accused sitting there and deciding to ignore the obvious risk. [ 104 ] While I accept that the Accused was very hard of hearing, I do not accept that he would not have noticed the Complainant entering through the balcony had she done so.

He testified that he was sitting at the computer table which did not face the window or balcony. However, the photos of the scene show the computer chair facing the table that does face the balcony window which is also next to the door. This would be no more than three or four feet from the balcony door and it would have been impossible for him not to see the Complainant. The photos taken by Det.

Shelby Cech at around 7:30 p.m. show the chair in that position and there is no evidence that it was moved between the arrival of the police and the time the photo was taken. [ 105 ] If I accept the evidence of the Accused that he was sitting in the chair facing away from the balcony door, I believe that the amount of activity that would have been required by the Complainant to navigate her way to the kitchen from the balcony door would nevertheless have drawn the Accused’s attention as his chair would still have been only a few feet from the balcony door. [ 106 ] Ms.

Roth arranged for a friend to climb up to the balcony and into the suite and took photos. Tyronne Brown, Ms. Roth’s son, also arranged for his wife to do so as an experiment. Ms. Roth’s friend is shown in photos and, while not shown in evidence, Mr. Brown apparently videotaped his wife. I have no doubt that individuals the size of the Complainant could accomplish this manoeuver if they wished to do so.

In my view, it is highly unlikely that someone would do so without any idea as to the scene in which they would find themselves. [ 107 ] Having considered all of the evidence on this point, I believe this story of the Complainant climbing in through the balcony was concocted by the Accused.

i) Grabbing the knife [ 108 ] The Accused testified that he took the knife off the table for the purpose of cutting the handles off the bag carried by the Complainant which, he believed, contained Kraft Dinner that she had taken from him. [ 109 ] As indicated earlier, the Complainant was just over 5’ tall and weighed 109 pounds. The Accused was 6’ 7 ¾” and weighed 260 pounds. He testified that he was very strong and a proficient fighter. I do not accept his explanation that he grabbed the knife so he could cut the handles off of the bag she was carrying. He easily could have taken the bag by force if, indeed, she was carrying it.

j) The fork [ 110 ] The bent fork is seen in the photos of the scene. The Accused denied ever owning such a fork. Ms. Roth also stated that the fork did not match the other cutlery in the apartment. [ 111 ] Even if I accept their evidence, the fact remains that the fork was in the apartment and it was bent. Whether the rest of the Accused’s cutlery matched the fork or came from the apartment is of no consequence.

k) Telephone [ 112 ] The Accused testified that he picked up the cordless phone from the bed in his bedroom while the Complainant was in the bathroom. He said the phone had been left there because he and Ms. Roth had been doing laundry. [ 113 ] If the Accused did pick up the phone from the bed in the bedroom, as he testified, then there was nothing to prevent him from calling 911 at that time. He did not do so. The Accused says he did not do so as he was too intent on simply removing the Complainant from his apartment. He said it was only when she started bleeding that he decided to phone 911.

I note here again that given the Accused’s size and acknowledged strength and fighting abilities, he would have had no trouble picking up the petite Complainant and forcibly removing her from the apartment had that been his real desire. [ 114 ] The Accused testified that he always kept the portable phone close to him. He also said that he had been sitting at his computer table for a while, sending emails, downloading the movie and about to slice bread, before seeing the Complainant. [ 115 ] I do not believe that the Accused picked up the telephone in his bedroom.

It was on the table in the living room where the Complainant says she grabbed it. [ 116 ] The Accused also testified that the Complainant never touched the phone. Cst. Christopher Weir arrived at the scene around 6:25 p.m. He testified that he saw blood on the telephone seen in the hallway close to the apartment door. I accept his evidence that it was blood that he saw and that it belonged to the Complainant who was the only one bleeding in the apartment. He described it as smeared. [ 117 ] I do not believe the Accused.

l) Blood on the door [ 118 ] The Accused testified that the Complainant never got near the main door to his apartment. Photos taken by Det. Shelby Cech shortly after his arrival at the scene around 7:30 p.m. confirm that there was blood on the door and on the door handle that the Complainant said she tried to open. The blood on the door appears to have spattered down from around the door handle. The Accused suggests that it must have been planted there. There is no evidence that could possibly support his allegation. [ 119 ] Cst. Nancy Allen testified as a blood stain pattern analysis expert.

While she was relying on photographs of the scene rather than observations during an actual attendance, she identified the blood on the doorknob as a transfer stain, caused by someone who was bleeding touching the doorknob, and the spatter stains on the door consistent with dispersal by the contact with and handling of the doorknob.

m) Cords on floor [ 120 ] Ms. Leenheer testified that in her many visits to the Accused’s residence, all his loose cords were in a box in a closet and off the floor. He kept the floor clear for his wheelchair. This evidence was confirmed by Mr. Brown. The photos of the scene after the subject incident show at least three cords on the floor in the vicinity where the Complainant said he tried to tie her up. The Accused suggested that the Complainant must have grabbed them out of the box in the closet.

I do not believe that evidence. [ 121 ] Further, while he denied attempting to tie up the Complainant in his testimony, he responded to her statement in the 911 call that he tried to tie her up by saying “’cause you just fuckin’ tried to grab my shit”. While I do not accept most of what the Accused said in the 911 call as truthful spontaneous reactions (as discussed below), I do find this to be an admission by him that he did try to tie her up.

n) Clothes on chair [ 122 ] The Accused denied removing any of the clothes of the Complainant. However, her jacket and top are seen on a chair in the apartment. Her shoes and socks were found on the couch. There was no explanation from the Accused as to how her jacket and top, as well as her shoes and socks, came off and ended up on the furniture.

o) Lies to the Police in February 2014 [ 123 ] During a 911 call on February 25, 2014, the Accused told the police that he was in a wheelchair, there were three people who robbed him, two men and one woman, the woman tied him up in the alley, and he gave the man $60 and was told to “give the money or I am going to kill you”. He acknowledged at trial that all of these statements were lies. [ 124 ] The February 911 call ended with the Accused becoming frantic and trying to disconnect. He said he had to call his lawyer.

He testified that he wanted to call his lawyer because he knew that the police would be showing up and he wanted to protect himself. I find that he was frantic and “wanted to protect himself” because he realized that there was now video evidence of him walking and running. [ 125 ] The Accused later lied to Elizabeth Leenheer by telling her that around $1,000 was stolen from him.

p) The mail and the locked door [ 126 ] The Accused testified that the front door to his apartment was locked. He knew this because Ms. Roth left the suite to get the mail and when she returned, she locked the door. In her testimony, Ms. Roth denied leaving the apartment before she left via the balcony. The evidence of the Accused is not true on this point as well. The door was left unlocked by the Accused when he left to invite the Complainant to his suite.

q) Limited funds [ 127 ] The Accused testified that he gave Ms. Roth $300 when she left so that she could get some cigarettes and groceries. He also testified he had no money. H e said that his father gave him the money. That is a lot of money to give someone to buy cigarettes, Cheez Whiz and eggs. I do not believe him. [ 128 ] The Accused also claimed he could not afford any brand named food or even a belt for himself. However, he purchased five computers and owned about 1500 CDs and other computer equipment. No explanation was given as to how he was able to afford all of these items.

While I make no findings in this respect, I merely comment on it as another apparent inconsistency in his testimony.

r) Computer download [ 129 ] The Accused testified that he began downloading a movie called Robo Cop 3. He was adamant about this in giving his evidence. However, Del Michaud, a knowledgeable computer IT person called by the defence, examined the computer’s use on June 16, 2014. He testified that Robo Cop 3 was never downloaded by the Accused. Rather, a different movie, Percy Jackson Sea of Monsters, did begin downloading at 5:53. He testified that once downloading begins, the Accused would not have to stay with the computer. While a very minor point, it again emphasizes the inconsistencies and unreliability of the Accused’s testimony.

s) Barbara Roth’s Testimony in General [ 130 ] Barbara Roth testified for the defence. I found it striking that her evidence coincided precisely with that of the Accused on certain points (such as going to buy Cheez Whiz and eggs, or moving to New Norway) but was not only inconsistent but contradicted his evidence on a number of major points. [ 131 ] Ms. Roth gave evidence contradictory or inconsistent with that of the Accused regarding his climbing down and back up the balcony, his hearing, and locking the door. There were other examples.

I was left with the impression that they had discussed certain areas of expected testimony and she provided corroborative and rehearsed evidence on those matters, but failed to anticipate and discuss other areas that did arise, resulting in conflicting evidence on critical points. 3. The Accused’s Exculpatory Statements [ 132 ] Both the Accused and the Complainant made statements during the 911 call beginning at 6:13 p.m. on June 16.

On the Application of both the Crown and defence, I allowed the audio recording of the 911 call into evidence as part of the res gestae or, more particularly, as spontaneous statements made by the Complainant and the Accused. [ 133 ] On the application of the defence, I also allowed into evidence exculpatory statements by the Accused on June 16 and 17, 2014, after he had testified at trial. Those statements were admitted as spontaneous reactions of the Accused upon being charged or first presented with incriminating facts. They were also admitted as relevant to the defence of negligent investigation and bias.

I will discuss those aspects of the statements later in these reasons. [ 134 ] The recording of the 911 call begins with screaming by an unidentified female who is acknowledged to be the Complainant. At various times she is screaming and yelling for help and saying that she has been stabbed. The Accused is heard saying that the woman has broken into his apartment through his balcony. He repeats that a number of times.

At one point, he says “I can’t move ’cause I’m in a wheelchair” and the Complainant yells out “you’re not in a wheelchair . . .” [ 135 ] I find that none of the statements by the Accused in the 911 call reflect the actual and honest reaction of the Accused to what was occurring. I find that the Accused recognized that the Complainant had successfully called 911, and he concocted the story of her breaking into the apartment as a possible explanation that might absolve him from responsibility.

I reject that this must be a truthful spontaneous reaction, as he also stated that he could not move because he was in a wheelchair. The defence has suggested that on this point, he was simply speaking in broad general terms as to a disability. I do not believe that this would be a natural “spontaneous” reaction. I find that he was lying to bolster his fabricated story. I note again that he climbed down the balcony to walk the dog, climbed up the balcony on his return and later had chased the Complainant around the apartment on foot. At no time during these events was he unable to move.

He lied on the 911 call about his mobility. I find he also lied about the Complainant breaking into his apartment through the balcony. [ 136 ] The Accused made similar statements about the Complainant breaking into his apartment when he was removed from the scene and also during the videotaped interview. This concocted story was not made more believable by its repetition. [ 137 ] During the course of the interview, there were many occasions when the Accused was faced with incriminating facts and suggestions.

He was aggressive in responding to them and the defence suggests that this is the response from someone who is credible and innocent. I disagree. [ 138 ] The Accused exhibited a loud and aggressive behaviour during his interview. Having viewed and considered his behaviour, I find that this attitude is equally consistent with his having fabricated a story. When he did not know how to respond to a specific

question, he reacted with aggression and suggestions of police planting evidence and being biased against him. [ 139 ] The reactions of the Accused as viewed in the interview do not enhance his credibility, nor do I find them to be suggestive of his innocence. [ 140 ] The Accused testified to his size, strength and fighting capabilities. While giving evidence, he appeared both manipulative and controlling. He was aggressive at times and argumentative. Defence successfully applied to have this Court consider his spontaneous reactions during the 911 call, his removal from the scene and his videotaped interview.

He exhibited these same tendencies in both the 911 call and videotaped interview. In the latter, he attempted to manipulate and control the interview by aggressively telling Det. Reule what investigative steps the police should take and suggesting that the police had planted evidence and that they were biased. [ 141 ] I do not find his reactions are necessarily spontaneous in the sense of being an immediate reaction to being accused of a crime or being presented with incriminating facts.

In my view, they are equally consistent with a calculated attempt by the Accused to deflect the focus of the investigation from himself. [ 142 ] As a result, I place no weight upon this evidence in assessing the Accused’s evidence for its internal consistency, and well as its consistencies and inconsistencies with other evidence. 4. Conclusion on the Credibility and Reliability of the Accused [ 143 ] Most of the testimony of the Accused was either internally inconsistent, contradicted by other evidence or, simply, without foundation.

He appeared to say whatever he felt necessary to support his fabricated narrative and he bullied others into providing some, though ultimately unreliable, corroborative evidence. When faced with evidence that did not conform to his narrative as to what occurred, he replied that the evidence must have been planted, presumably by the police. B. Credibility and Reliability of Complainant’s Testimony 1. Complainant’s status after the incident [ 144 ] The police arrived at the Accused’s apartment around 6:18 p.m. on June 16, 2014.

The Complainant was found bloodied and on the floor in the hallway entrance to the apartment. [ 145 ] The Complainant was taken by Emergency Medical Services to the Emergency Department at the Royal Alexandra Hospital. Mr. Shawn Haryett, the Emergency Medical Technician, testified that the Complainant had blood covering her arms and face with trauma to her face including bruises and lacerations. [ 146 ] She was seen in the Emergency Department by Dr. Moritz Haager. He testified that she did not appear to have a normal mental status and was fluctuating between falling asleep and crying.

He thought she was carrying on strangely and was not answering his questions in a normal manner. He testified that she appeared sleep deprived, which would have affected her ability to respond. [ 147 ] During the course of the evening and the night of June 16, 2014, the Complainant was given five doses of Fentanyl (the last being at about 11:00 p.m.), 600 mg of Ibuprofen (at 2:40 a.m.), one dose of Tylenol 3 with codeine (at 3:45 a.m.), as well as 8 mg of Zofran and 2 g of Ancef.

She was also given 10 Ibuprofen tablets and 5 Tylenol 3 tablets on being discharged at 3:50 a.m. on June 17, 2014. [ 148 ] Fentanyl is an opioid used to treat severe pain or manage pain after surgery. Ibuprofen is an anti-inflammatory. Tylenol 3 with codeine is a narcotic and analgesic. Zofran is used to prevent nausea and vomiting. Ancef is an antibiotic. [ 149 ] The Complainant testified that the Accused banged her head on the floor a number of times. The Accused acknowledged forcefully banging her head on the floor at least once to force her to release her bite on his arm. Dr.

Haager did not follow any protocol to determine whether the Complainant was suffering from a concussion but acknowledged the possibility and that, if so, it could also explain her behaviour in the hospital. [ 150 ] The Complainant was taken to police headquarters on discharge. At 5:35 a.m., she was woken up at police headquarters to sign a consent to obtain her medical records. She was fatigued and was allowed to sleep. At 9:20 a.m., she was awakened again, provided a caution and began giving a statement. Again, she appeared fatigued and was allowed to sleep.

She was awakened again at 2:54 p.m. and was interviewed until 6:09 p.m. 2. Drug use [ 151 ] The Complainant’s credibility, and the reliability of her evidence, was first attacked by the defence on the basis that she was a crack cocaine addict either using or coming down from its use at the time of the incident, at the time of her KGB statements, and during her Preliminary Inquiry testimony. [ 152 ] When cross-examined at the Preliminary Inquiry, the Complainant acknowledged having used marijuana for years, denying that it was a “street drug” and characterizing it as an herb.

She denied using any other street drugs and, particularly, crack cocaine, before the age of 27. She acknowledged that she began using crack cocaine around November 2014 but denied ever using coke, speed or methamphetamine before then. [ 153 ] Beginning in March 2015, the Complainant was using crack cocaine two to three times per day. She said that she quit using the drug about 2½ weeks before she testified at the Preliminary Inquiry, which would have been around the third week in May 2015.

[ 154 ] The Accused testified that the Complainant said to him either “I’m coming down from crack” or “I’ve just done crack”. I do not believe his evidence on this point, as I discussed above in relation to the Accused’s hearing. [ 155 ] The defence called Kenneth Daniels, a 38-year-old career criminal and serving inmate. Mr.

Daniels had been convicted of no less than 125 criminal offences, most of which were offences of dishonesty such as forging documents, obstructing the police by giving false names or false identification, forging documents including cheques, committing fraud and, on at least one occasion, providing a fake name to police for the purpose of having another person take the blame for an offence he had committed. He testified he would do anything for money and acknowledged using street drugs from the age of nine. Mr.

Daniels testified that he began selling crack cocaine to the Complainant around October or November 2014, and last sold drugs to the Complainant around the long weekend in May 2015. He was arrested on June 14, 2015. His evidence corroborates that of the Complainant in relation to the dates between which she was using street drugs. [ 156 ] The defence also called Kala Delorme, a 28-year-old serving inmate who testified that she sold drugs to the Complainant over a period of around four years. She was an admitted crystal meth addict and also smoked a lot of marijuana.

She was a confused witness with little or no concept of time and little concept of her own situation. She testified that she had no idea what her situation was in court proceedings and had no idea what she was charged with. She was an extremely unreliable witness. The only aspect of her evidence that can be believed is that she sold some street drugs to the Complainant in 2014 and 2015, as that is also consistent with the evidence of both the Complainant and Mr. Daniels. She was put forward to support the defence position that the Complainant lied about her drug use and was unreliable.

It would be ironic indeed to find the unreliable evidence of an admitted crystal meth addict who sells drugs to support that habit to be probative as to the unreliability of a person alleged by the Defence to be a crack cocaine addict. [ 157 ] Both Mr. Daniels and Ms. Delorme gave evidence to the effect that the Complainant would often trade stolen goods for drugs. Mr. Daniels and Ms. Delorme knew each other prior to testifying as they were in the same line of work.

It was very coincidental that while both were in custody, they both ended up in discussions with the Accused about the Complainant, and gave similar evidence on this point, including the types of goods she allegedly traded. I found their evidence in this respect to be so coincidental as to appear contrived. It bears repeating that the Accused has alleged that the Complainant broke in to steal from him. While I accept Mr. Daniels’ evidence to have been accurate in terms of the period of time in which he may have sold drugs to the Complainant, I found all of his other evidence, as with that of Ms.

Delorme, to be suspiciously coincidental and wholly unreliable. [ 158 ] The defence called Dr. Ch arl Els as an expert witness. Dr. Els is eminently qualified as an expert to provide opinion evidence on the symptoms of drug intoxication, withdrawal from drugs and the effects of both on cognitive functions. [ 159 ] Dr. Els was asked to provide an opinion as to the cause of the Complainant’s behaviour at different points in time. One of the facts that Dr. Els was asked to assume as true for the purpose of his opinions was that the Complainant had a “history of using crack cocaine by smoking it”.

There are two concerns with this assumption. First, the evidence does not support that the Complainant was smoking crack cocaine around the critical times in question. Second, he was asked to assume a fact that effectively was the opinion counsel sought then to elicit. However, he was not provided with many of the facts which would have been relevant and material to the opinion he was asked to give. He was told to assume other facts which were neither proven nor admitted. [ 160 ] Dr.

Els clearly considered the fact he was told to assume concerning the Complainant’s “history of using crack cocaine” as the most significant fact leading to his opinions. He acknowledged that all of his opinions were dependent upon this assumption. While he opined that many of the symptoms exhibited by her could be attributed to her possible withdrawal from cocaine use, he then applied the caveat that this opinion is well founded as long as it is not better explained by a medical condition like a head injury which would manifest many of the same symptoms. [ 161 ] As a result, Dr.

Els gave an opinion on a narrow set of facts, and assuming that the Complainant was a chronic crack smoker. While he provided the opinion that some of her behaviour was consistent with crack use, it was not fully informed. He was not provided with sufficient information upon which to opine whether her behaviour was also consistent, or was more consistent, with other causes, either individually or cumulatively. [ 162 ] Dr. Els considered apparent fluctuations in the Complainant’s mental state during the period from June 16 to 18, 2014, as evidence of either drug use or withdrawal from drugs. Dr.

Els gave the opinion that one dose of Fentanyl can cause drowsiness. He also said that a dose of Tylenol 3 with codeine can cause drowsiness.

He did not provide an opinion on the cumulative effect of five doses of Fentanyl, 600 mg of Ibuprofen, one dose of Tylenol 3 with codeine, 8 mg of Zofran, 2 g of Ancef, some of the take away 10 Ibuprofen tablets and five Tylenol 3 tablets, a highly traumatic event, serious injuries, stitches, little or no sleep, and no food or nutrition for many hours . [ 163 ] In addition, he did not take into account the possibility of the Complainant having sustained a head injury or concussion, her lack of sleep generally, and specifically during the night of June 16 to 17, 2014.

Nor did he consider or address her lifestyle in general, including her tendency to stay awake all night and to try to find shelter to sleep in during the day, or her relatively small size. [ 164 ] It is also very important to note that Dr. Els only saw the Complainant’s first KGB interview at 9:20 a.m. on June 17, 2014. Inexplicably, he was never shown the entire second interview, which began at 2:54 p.m. Therefore, he was unaware of, and unable to comment on, the Complainant’s behaviour during that interview when she appeared coherent, lucid and responsive. Det.

Gordon testified that the Complainant was able to freely converse and there was nothing unusual about her behaviour during the interview beginning at 2:54 p.m. He had no reason to be concerned about the health or safety of the Complainant after she was released from the hospital and by that time, she had recovered sufficiently to be interviewed. I am only considering this evidence of Det. Gordon as relevant to the issue raised by the defence regarding her alleged drug use. [ 165 ] The value of Dr.

Els opinion as to her condition earlier that day is further limited by his inability to comment on her condition only a few hours later after she was rested and fed, and its impact on his opinion of her condition earlier. [ 166 ] Dr. Els also commented on a couple of statements attributed to the Complainant. She told the police when they arrived at the scene that she thought it had been snowing out and that it was dark before she went inside the apartment building. Neither statement was

true. In considering these comments, Dr. Els did not consider that she had just suffered head trauma, and had shown no abnormal signs earlier in the afternoon when seen by a worker from a day care and two workers from a second day care. He also did not take into consideration evidence of her lifestyle as a homeless person, and that she would often be awake and walking all night to keep safe and would look for places to sleep during the day. Finally, he did not consider the possible effect of her being cold and waking in a strange environment. [ 167 ] Because of the limited information considered by Dr.

Els, I do not accept his opinion as to the likely cause of the behaviour of the Complainant between June 16 and 18, 2014. [ 168 ] Dr. Els was also asked for his opinion of the Complainant’s behaviour during the period from June 3 to 5, 2015. Once again, he was asked to first assume that she had a “history of using crack cocaine by smoking it”. Even though she acknowledged having used crack cocaine for some of the period prior to June 2015, she said she stopped about two and one-half weeks prior to her testimony at the Preliminary Inquiry. There is no credible evidence to the contrary. [ 169 ] Dr.

Els opined that when the Complainant began her Preliminary Inquiry testimony on June 5, 2015, she was in the stages of stimulant withdrawal. He said that some of the facts he was asked to assume (such as her spinning around while on the stand and stating that “everything’s too weird, can’t think straight” and “panicking”) might be evidence consistent with intoxication, but he found that other signs such as sleeping, fatigue and eating were signs of detoxification rather than intoxication. Dr. Els then acknowledged that testifying can be very stressful and “panicking” would, therefore, not be an unusual reaction.

He also did not appear to consider the effect on the Complainant of having to be in the presence of the Accused, and having to relive and testify to the events that brought her to court. [ 170 ] Again, Dr. Els did not consider the Complainant’s regular sleep deprivation and lack of food as a reason for her “altered state of consciousness”. He was told to assume that she had “a repeated bleeding nose” when in fact, she only showed a bleeding nose twice, and there was evidence that it could have been the result of a number of things including local trauma (picking) or stress. [ 171 ] Dr.

Els also acknowledged that some of the other signs she did show, such as a stated attempt to commit suicide, could also indicate depression. He stated that he could not distinguish between depression and cocaine withdrawal without doing a clinical diagnosis and considering her history. He had done neither. He also acknowledged that it would not be unusual for someone involved in a traumatic event, such as the one alleged by the Complainant, to suffer from bad dreams and nightmares. [ 172 ] Dr.

Els said that cocaine consumption and withdrawal may be associated with cognitive dysfunction including problems with memory, insight, judgment and behaviour. Dr. Els did not listen to the Complainant’s entire Preliminary Inquiry testimony, particularly the portion where she was articulate and responsive after she was rested and fed. Therefore, he could not provide an opinion regarding her condition during this important period of time when she did testify under oath and provided a seemingly coherent narrative of what had occurred.

He was not in a position to compare her later condition to her earlier behaviour and opine as to possible explanations. [ 173 ] In short, an expert opinion is only as good as the facts supporting the opinion. I found Dr. Els to be an eminently qualified medical expert in the area of drug use, intoxication, withdrawal from drugs and the effects of both on cognitive functions. He was asked to assume a fact not proven and which was designed to e

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