R. v. Kirton Date:, 2013 BCPC 293

Citation: R. v. Kirton Date: 20131025 2013 BCPC 0293 File No: 225057-C-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENNETH NOLAN KIRTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: T. Anderson Counsel for the Defendant: V. Desroches Place of Hearing: Vancouver , B.C. Dates of Hearing: Aug. 28-31, Sept. 4-5, Nov. 1, 14-16, 30, 2012; March 5, July 31, 2013

Date of Judgment: October 25, 2013 INTRODUCTION [ 1 ] In the early morning hours of March 4, 2012, Pearl Cecil (“Pearl”) was violently attacked in her apartment in East Vancouver. She sustained stab wounds to her head, face, neck and upper body. She also sustained a bite wound to her right hand. In addition, she was forced face down into a pillow which nearly resulted in her being smothered to death.

Pearl testified that her assailant was Kenneth Kirton (“the accused”). [ 2 ] The accused faces four offenses indexed as follows: (1) that the accused did attempt to murder Pearl by stabbing and smothering her; (2) that the accused did rob Pearl of her purse; (3) that the accused committed the aggravated assault of Pearl; and (4) that the accused, while committing an assault upon Pearl, did use a weapon being a screwdriver. ISSUES [ 3 ] There are two principle issues. First, who is responsible for this violent attack?

If it is determined beyond a reasonable doubt that the accused is the perpetrator of this violent attack, then has the Crown established guilt beyond a reasonable doubt for which, if any, of the charges that he faces? DETAILED BACKGROUND [ 4 ] At the time of this violent attack Pearl was 74 years of age. She was a First Nations Elder. She was the mother of seven children of which five were daughters. One of her daughters, Marie, was in a relationship with the accused. Indeed, Marie and the accused lived together for many years.

Pearl testified in direct examination that she knew the accused for approximately 10 years. [ 5 ] Pearl testified that on March 3, 2012, she was entertaining her daughter, Selma, and other family members at her apartment. It would appear that this get together was to celebrate Pearl's 74th birthday which was to take place on March 4, 2012. Pearl recalled that the party ended between 10:00 pm and 10:30 pm. Pearl did not go to her normal bedroom as it was being used for storage. Pearl had set up a bed on a cot in the living room near her television. [ 6 ] There was a second bedroom which was occupied by a roommate.

This roommate was away for the weekend. Pearl recalled that it was customary for her roommate to close her bedroom door if she was away. Pearl testified that the television was on in the living room, though she was not much interested in watching television. She selected a book to read but shortly fell asleep. [ 7 ] She woke up when she heard a bang on the patio door window. The patio door is a sliding door on rails. Pearl testified that, prior to March 4, 2012, she had had no problems with opening the door. Pearl called out asking who was at the door.

The accused responded that he was at the door and he wanted to know if he could stay the night because he had missed his train to Surrey. Pearl decided to let the accused into her apartment; however, when she went to open the door she found that the door was sticking. It required the strength of both herself and the accused to open the patio door. [ 8 ] When the accused came into the apartment, Pearl testified that he told her he was drunk, though, in her opinion, he did not look drunk. She also described the accused as being dirty and smelling like garbage.

Pearl helped the accused in preparing some bedding next to her cot and near the television. She recalled that there was a casual conversation about a new granddaughter, Jessica, and at the time of this conversation the accused was laying on his stomach on the floor in his makeshift bed while Pearl lay on her back on her cot with a book open on her chest. [ 9 ] Pearl testified that it was quiet for a period of time, when then suddenly the accused jumped onto her stomach, and attacked her with what she believed was a screwdriver. She testified that the accused told her to “be quiet, do not make noise”.

She testified that the accused had the screwdriver in his right hand and began the attack by stabbing her in the face and chest area. Pearl testified about her response to this attack in the following exchange between herself and Crown counsel: Q Okay. Were you saying anything while Kenny was hitting you with the screwdriver? A I was begging him to stop and I told him that I loved him like my own son and I asked him why he was doing it. Because I don't remember ever doing anything to hurt his feelings. Q Okay. Had you two had any argument or any disagreement before he starts doing this? A No.

Q Did he say anything while he was doing this? A No. Q Okay. 'Cause you've given evidence that he said, "Be quiet."

A That's the -- at the beginning he did say that. Q Okay. Did he say anything after that? A No. (Transcript, August 28, 2012, Page 18, Lines 22 to 37) [ 10 ] During her efforts to repel the attack, Pearl testified that she managed to knock the screwdriver out of the hand of the accused. It was at this point that she recalled being bitten where her right thumb joins with her hand. The bite broke the skin. She then testified that she rolled over onto her stomach on her cot and felt both hands of the accused around her neck pushing her face into the pillow.

Pearl testified that she was terrified that she was going to be smothered to death, but fortunately managed to move her face to an air pocket which allowed her to breathe. She recalled that she suddenly fell off her cot and that the accused fell down with her. This fall broke his hold on her neck and he then left her alone. [ 11 ] Pearl testified that once the accused began to stab her, she closed her eyes as she did not want to look at the accused. Pearl testified that the voice she heard was the voice of the accused. On this point the following exchange took place between Crown counsel and Pearl: Q Okay.

Were you certain it was him? A Pardon? Q Were you certain it was him? A Yes. Q All right. Now, when you said he jumps on top of you and says, "Be quiet," did you recognize a voice? A It was his voice. Q It was whose voice? A Kenny's. Q Okay. When you feel somebody on your chest, do you look up to see who it is? A Well, I -- that was the last time I looked at his face. I asked him, "What are you doing?" Q Okay. And just to be clear, you looked at whose face? A I looked at Kenny. Q After you said, "I asked him what he was doing," did you ever see his face again?

A I was concentrating on staying alive. (Transcript, August 28, 2012, Page 59, Lines 20 to 39) [ 12 ] Pearl testified that when she fell from her cot she remained very still. She recalled that she was making a gurgling noise from the blood that was running into her mouth. She next heard movement in the living room. She also heard some zippers opening and closing and assumed that the accused had found her backpack purse, which she had placed close by her cot, and was checking it out. Shortly after hearing zippers opening and closing, Pearl heard no further noises within her apartment.

She took a chance, looked up, and assumed that the accused was gone. [ 13 ] Pearl testified that she got up, grabbed her telephone to call 911, and fled out her front door to go to the front of her apartment building. She noticed on her way out of her apartment that her roommate’s door was now open and a light was on. When Pearl got to the front lobby by the building elevator she was met by a security guard, Mr. Harminder Jaura, who was contracted to provide security to the building. Mr.

Jaura described Pearl as being “full of blood on her face and a little on her body also, on the upper part”. [ 14 ] As a result of his observations, Mr. Jaura called 911 at 3:28 am. Just prior to Mr. Jaura arriving at the apartment building, he testified that he noticed shadows of two people coming from the side of the apartment building and that they were talking and laughing to each other. It was very shortly after the 911 emergency call that police and ambulance personnel arrived on scene. [ 15 ] Pearl was taken to the hospital where she received medical treatment.

Prior to receiving medical treatment, a swab was taken at the area of the bite wound on Pearl’s right hand. Blood was also taken for the purpose of DNA analysis. Pearl remained in hospital for three to four days and was then released. It is clear from the evidence given by Pearl and from the photographs taken, that she sustained numerous injuries to her head, face, neck, upper body and right hand. There was also bruising to the neck area. [ 16 ] Pearl testified that the stab wounds were not particularly deep and she described the force used as being a “five out of ten”.

She also described the screwdriver as being approximately the size of a pen. As of August of 2012, she continues to suffer side effects from the attack. Those side effects are both physical and emotional. [ 17 ] Upon her release from hospital Pearl returned to her apartment and noticed that the only thing missing was her backpack purse. Police investigators had also taken Pearl's roommate through the apartment prior to Pearl returning to the apartment. The roommate did

not notice anything missing. [ 18 ] Constable Robert Reid, one of the principal investigators, testified in cross-examination that when he was on scene he was concerned enough about the medical condition of Pearl that he got permission from the Inspector on duty to have a locksmith attend to change the locks on her apartment. [ 19 ] Constable Reid further testified in cross-examination that no fingerprints of value were located on the patio door. When cross- examined about any manipulation of the patio door the following exchange took place between Defence counsel and Constable Reid: Q Okay.

Now, did you ever manipulate that sliding glass door yourself? A To the best of my recollection, Your Honour, I believe we tried. It was very, very tough to open, almost -- almost impossible, if I recall correctly. It was very tough to open. Q Was it off its tracks? A It quite possibly may have been. I just remember it was almost impossible to slide it, so it may have been off its tracks. (Transcript, August 31, 2012, page 46, lines 39 to 47 and Page 47, Line 1) [ 20 ] Police investigators took many photographs of the interior of Pearl's apartment.

The apartment would be described as a two- bedroom apartment, one bathroom, storage area/laundry room, kitchen, dining room and living room. Photographs of the bathroom show a toilet with both lids in the upright position. There is a bathtub with shower combination. The shower curtains are two thirds drawn across the bathtub. A towel is hung over the shower rail. [ 21 ] The photographs also depict the patio door area. The vertical blinds extend from the top of the patio door to the floor. Those blinds are closed. There are horizontal blinds on a side window adjacent to the patio door.

They are likewise closed, though there is a minor gap near the top of the blinds. [ 22 ] There are also photographs depicting the area of the attack upon Pearl. Those photographs appear to reveal that a significant assault took place in the area of the cot, near the television. A significant amount of blood is located in the area of the cot, and on the bedding from the cot where Pearl had been lying at the time of the assault. Photographs of this area also reveal that the television is on. [ 23 ] Police conducted a thorough search of Pearl’s apartment. No screwdriver was found in her apartment.

No screwdriver was ever located in relation to this case. [ 24 ] DNA evidence played a crucial role in this case. On March 6, 2012, the accused turned himself in to the Sheriff services at 222 Main Street in Vancouver. At that time the accused was arrested for his attack on Pearl. His clothing was seized and placed in a bag for transportation to the remand centre in Port Coquitlam. This bag has a unique number, being 078, and the person associated to the contents of the bag was the accused.

There is chain of custody documentation which accompanied the bag to the remand centre. [ 25 ] At some point in the investigation, police investigators attended at the remand centre and seized the clothing that accompanied the accused to the remand centre from the Main Street courthouse. Contained within the clothing effects for the accused was a pair of long johns. Those long johns appeared, from photographs introduced at this trial, to have a blood stain in the exterior front right knee area. A DNA examination was conducted in relation to the area of the blood stains.

It was determined that the blood on the long johns was Pearl’s blood. [ 26 ] No DNA associated to the accused was located either at Pearl's apartment or on any part of her body or clothing. In particular, a DNA analysis of the area of the bite wound on her right hand was inconclusive. As well, a discarded piece of gum was located on a night dress at the area of the attack on Pearl. That discarded gum was seized and a portion forwarded for DNA analysis. No human DNA was detected in relation to that gum. [ 27 ] Following the close of the case for the Crown, the accused elected to testify in his defence.

Through his counsel the accused testified that he had a criminal record for convictions that included crimes of violence, including sexual assault with a weapon, break and enter with intent to commit sexual assault, assault causing bodily harm and common assault. [ 28 ] The accused is of First Nations heritage and was raised in the Peguis Indian Reserve in northern Manitoba. He was 45 years old in November of 2012. He started using illicit drugs when he was 13 years of age. He was of the opinion that he has been a drug addict for 32 years.

His drug use commenced with marijuana, proceeded onwards through the use of LSD, and then graduated on to using cocaine and heroin. As of March 4, 2012, his drug of choice was heroin. [ 29 ] The accused testified that he has known Pearl for approximately 12 to 13 years, as a result of a long-term relationship he had with Pearl's daughter, Marie. The accused further testified that he knew where Pearl lived and that he had spent the night at Pearl’s apartment with Marie on many occasions. [ 30 ] The accused testified that while he lived in Surrey, he spent a great deal of time in the Downtown Eastside area.

On March 3, 2012, he woke up and he was “drug or dope sick”. When he is drug or dope sick, he testified that he sweats and goes through panic attacks. To get himself back to a maintenance level, the accused needs heroin.

The accused described the impact of this need in the following exchange in the direct examination: A Well, I lived in Surrey, that was my present address, Surrey, on 122nd Street, and when I come -- basically I like to hang around Vancouver, and I'd hang around the downtown area, and I didn't go home on a Friday night, I stayed downtown all that night, and I was sick that morning, so, you know, when I -- when I stay downtown I use heroin to get --

THE COURT: When you say you were sick that morning, is that the morning of March the 3rd of 2012? A March 3rd, yeah. THE COURT: That you were sick? A Yeah. So, yeah. MS. DESROCHES: Q When you say sick, what does that mean to you? A I'm going through panic attacks, I'm sweating, I'm . . . oh, I'm just -- just not -- not there. THE COURT: Drug sick? A Drug sick, yeah, dope sick, yeah. THE COURT: I know what that is. MS. DESROCHES: Q So we're not talking about the flu, we're talking -- A No. Q -- about withdrawal? A It's just everything, yeah. Q What does the heroin do then in relation to that withdrawal sickness?

A It -- it just helps me about -- it depends how much I do, you know, I do a ten paper, it just gets me feeling a little better. I do a point, which is like two ten papers then I feel better, I'm not sick. I can motivate myself, I can, you know, handle myself properly and normal. Q Is it accurate to say you use it to function? A Yeah. Just -- just to function, not to get high or anything, just to make myself feel better. (Transcript, November 14, 2012, Page 11, Lines 1 - 37) [ 31 ] The accused recalled that it was around 11 am that he got a “ten paper” to get his “legs”.

It is unclear where he got this “ten paper”. In any event, he stabilized for approximately 6 hours and then went back downtown to the Bottle Depot. Following that, he went to the Empress Hotel where he had a couple of pints of beer. He then went on to the Balmoral Hotel where he had a beer and “hung out” listening to the music and having an occasional cigarette. [ 32 ] The accused testified that around 12:30 am he realized that he should be making his way back to Surrey and he was thinking about the SkyTrain. He went back into the bar and finished his pint, then went to the Native corner at Main and Hastings.

He also knew at that time that he would not be allowed to go to the First United Church as they do not accept anyone after 11 pm. It was at this time that the accused decided to “crash” at Pearl’s and catch the SkyTrain later in the morning. The accused thought about taking a free ride on a bus to Pearl’s, but then decided to simply walk to her apartment. It took him approximately 20 minutes to reach Pearl’s apartment.

In direct examination, he testified he made no stops on his way to Pearl’s. [ 33 ] He told the Court that he went to the back balcony of Pearl's apartment which is something that he “always” does with Marie. He knocked on the patio door but there was no response. He then knocked on the window several times when all of a sudden Pearl came to the patio door. He testified that Pearl granted him permission to enter her apartment, but she was having problems opening the sliding patio door, and required his assistance to open it.

Between the two of them they managed to open the door and he went into her apartment. [ 34 ] After entering the apartment the accused testified that he closed the patio door. While he experienced difficulty in opening the door there seemed to be nothing wrong at all when he closed the door. He further testified that he did not think he locked the patio door, or that he did not lock it at all.

It was his evidence that he “never usually locked the door when I am there”. [ 35 ] After entering Pearl’s apartment, the accused testified that he asked Pearl if it was okay for him to lie on the floor for a few hours, until he could catch the SkyTrain in the morning when it started running again. Apparently, Pearl had no problem with that proposition. There was some casual conversation about the family. [ 36 ] The accused recalled that he lay down on the floor in front of the television, and watched the television while Pearl was lying on the bed or couch near where he was lying.

The Court asked the accused about the television in the following exchange:

THE COURT: The TV was on? A I can't recall, no. THE COURT: Okay. A I don't think it was. THE COURT: You do not think it was? A I don't think it was. THE COURT: But you just don't recall? A Yeah, I can't recall, no. THE COURT: You can't recall, okay. (Transcript, November 14, 2012, Page 17, Lines 17 - 25) [ 37 ] The accused then told the Court that he decided to use the washroom and asked Pearl if he could use the washroom. He did not receive an answer so decided to go use the washroom.

When asked by the Court why he asked permission to use the washroom the accused answered: THE COURT: And on this occasion you asked her for permission? A Yeah, I asked her if I could use -- use the washroom, and she -- there was no reply, right, she didn't say nothing, so I just went and used it like. You know, maybe she was like thinking well why is he asking me to use the washroom? Why is he asking me to use the washroom, you know, like that's what I was thinking. Like maybe that's why she -- she didn't answer me.

Like I asked her to use the washroom, if I could use the washroom, and she never answered me, so I'm assuming, right, why -- you know, I'm assuming she's thinking well why is he asking me to use the washroom when he always uses it anyways. So I just assumed to go use it anyways. But it's -- I always used it without asking before. (Transcript, November 14, 2012, Page 20, Lines 13 to 29) [ 38 ] The accused testified he was in the washroom for a “little while” when he decided, because he felt dirty and smelly, that he would “sneak in” a shower.

So he undressed and had a shower when he heard a “rumbling” noise coming from the kitchen area. The accused assumed that it was the roommate who was making the noise. [ 39 ] The accused testified that he was in the washroom for 10 to 15 minutes. After his shower, when he was drying off, he heard another noise coming from the kitchen and again assumed it was the roommate. He recalled that he put his clothes on and that he tidied things up a bit and then hung up the towels.

He left the washroom and proceeded into the living room. [ 40 ] When the accused entered the living room, he saw Pearl lying there with blood on her. He described this observation in direct examination as follows: A ... I seen Pearl laying there with blood on her, and I looked down and I was looking, and I'm like -- I just got freaked right out, and that's when I ran out the front door. I was like -- I started panicking, and I'm like, oh no, and -- and I just ran out the front door and I just got all scared and thinking, holy shit. Q Why were you thinking "holy shit"?

A Well I just got -- I got scared, I just started freaking, figure something -- something's going to go wrong, I'm going to get blamed for it or something like that, and, you know, because of my past. It happened before. (Transcript, November 14, 2012, Page 25, Lines 13 to 25) [ 41 ] Defence counsel asked the accused what Pearl was doing when he left the washroom and went into the living room.

The accused testified that Pearl was “doing nothing” and then went on to describe what happened as follows: A She was laying like on -- on the floor basically, and that's when I looked down and knelt down, when I went -- went and knelt down I was like looking and I seen blood, and I just -- that's when I got up and I just started running. I started -- I just freaked out and I was just, [indiscernible], I'm, "Oh no, I'm going to get blamed for this, I'm like," you know.

And just things happened like that in the past, and you know, I gotten blamed for one thing before in the past and then I figured the same thing's going to happen.

(Transcript, November 14, 2012, Page 29, Lines 21 to 31) [ 42 ] The accused denied that he wore any gloves on that occasion. He further denied that he was ever in possession of a screwdriver. The accused denied that he was ever on the cot that Pearl was sleeping on, or that he jumped on Pearl’s stomach. The accused further denied that he told Pearl to be “quiet and don’t make noise”. In response to Pearl’s evidence that she told the accused, “Why are you doing this, I loved you like a son”, he testified: “No. I never heard nothing like that”. [ 43 ] The accused denied that he bit Pearl’s right hand.

At the request of Defence counsel, the accused opened his mouth and it was readily observable that the accused was missing teeth in both his upper and lower gums. He had teeth in place in the upper and lower gums on the right and left sides of his mouth. [ 44 ] Though apparently scared and panicky, the accused left Pearl’s apartment and “hung out” in the Templeton and Dundas area of Vancouver, which was described by the accused as “the Hood”. He apparently went to his brother-in-law’s place, but there was no response at the door. The accused then: “hung around the Hood for that date.

I “hung out” with a guy named Binner Jeff they call him”. At no time while he “hung out” with Binner Jeff did the accused testify that he had expressed any concern for Pearl. [ 45 ] Over the next approximately one to two days, the accused “hung out” with Binner Jeff, apparently collecting bottles, scrap metal and anything else of value to make some money. It was either Sunday, March 5, 2012, or at some point on Monday, March 6, 2012, that Binner Jeff told the accused that he saw in a local paper that the accused was wanted by the police. In response to this news the accused testified: “I’m like, really?

And he’s like yeah”. [ 46 ] The accused testified that he went into hiding as he was scared. After considering his position he decided to call his lawyer. Upon receiving advice from his lawyer, he turned himself in at the Main Street Courthouse. At the time that he turned himself in, the only change in his clothing was that he found a pair of pants and a sweater that fit him and he put them on. [ 47 ] Towards the end of his direct examination, the accused testified that there were mutual feelings of love between himself and Pearl. He described the relationship as one of respect.

He denied ever having any physical or verbal fight with Pearl in the past. The accused denied hurting Pearl in any way at her apartment on March 4, 2012. [ 48 ] Both Pearl and the accused were extensively cross-examined. The impact of their cross-examination on their recollection of events will be discussed in my Analysis of the evidence. POSITION OF THE PARTIES [ 49 ] Crown counsel submits that the evidence should establish guilt beyond a reasonable doubt in relation to the indexed offenses. Crown counsel submits that the evidence provided by Pearl was credible and reliable.

In particular, Crown counsel notes the evidence given by Pearl where she identified the accused as the person on top of her at the commencement of the assault, and further, her identification of his voice. [ 50 ] Crown counsel submits that it was the accused who was prying the patio door to gain entry into Pearl's apartment and that he was using a screwdriver for that purpose. It was noted that the accused himself in cross-examination agreed that he had a significant drug addiction and that he needed drugs every four to five hours to simply maintain his addiction.

It was the theory of Crown counsel that the accused wanted to gain entry to Pearl's apartment to get money or anything else of value so he could get more drugs. [ 51 ] Crown counsel notes that Pearl testified that she was having a casual conversation with the accused about a new granddaughter. After a short pause, he suddenly attacked her telling her to: “keep quiet, do not make noise”. It was further submitted that the accused was unable to subdue Pearl when he attacked her with a screwdriver and so he attempted to smother her to keep her quiet by killing her.

It was further submitted that it was during this altercation that the accused bit the right thumb of Pearl using the teeth to either the right or left side of his mouth. [ 52 ] It was further submitted by Crown counsel that Pearl was a First Nations Elder and the accused was aware that if others in his First Nations community were to find out he assaulted and robbed Pearl, his reputation would be in shambles.

As such, he would have to kill Pearl to avoid that humiliation. [ 53 ] It was further submitted by Crown counsel that the testimony of the accused that he was having a shower while someone entered the apartment and attacked Pearl was simply absurd. [ 54 ] It was further noted by Crown counsel that the accused had known Pearl for over a decade and had stayed at her apartment in the past.

On previous occasions he did not ask to use the bathroom but for some inexplicable reason he asked on this occasion. [ 55 ] Crown counsel also noted that nothing relating to the defence position that the accused would “sneak in a shower” was ever specifically put to Pearl.

Nor was Pearl asked how it was that the toilet seat lids were both in the upright position. [ 56 ] Crown counsel further submitted that it was simply unbelievable that the accused, after leaving the bathroom and seeing Pearl lying on the floor, panicked and ran from the apartment in fear that he would be blamed for what ever had happened to Pearl.

It was submitted that the accused himself, in his own evidence, did not know what was wrong with Pearl, therefore, what could he be blamed with? [ 57 ] It was further submitted by Crown counsel that it would not make sense for the accused to abandon Pearl when he was unaware of her medical condition when he found her lying on the floor in the living room. In particular, the accused himself testified that there

were mutual feelings of love and respect between himself and Pearl. If such were the case, why would he callously leave Pearl unattended on the floor in a potentially critical medical condition? [ 58 ] It was further submitted by Crown counsel that the blood that was located on the exterior right knee of the accused’s long johns was deposited when he was on top of Pearl attacking her. It was submitted that it simply did not ring true that the accused knelt down beside Pearl after leaving the bathroom at which time some blood was deposited onto his long johns.

Rather, it was submitted, it was the accused who attacked Pearl with a screwdriver, then endeavoured to smother her to death. He then took Pearl's purse, and returned to the Downtown Eastside to get more drugs. [ 59 ] Defence counsel submitted that the evidence fell short of proof beyond a reasonable doubt in relation to any of the indexed offenses. In particular, Defence counsel submitted that the evidence given by Pearl was unreliable. [ 60 ] It was submitted by Defence counsel that Pearl was significantly off in relation to timing of events.

For example, Defence counsel noted that Pearl recalled that the accused had arrived at her apartment around, or shortly after, midnight. She further recalled that she did not think a call was made to the police department after the attack at approximately 3:30 in the morning. [ 61 ] It was further submitted by Defence counsel that Pearl testified that during the assault she did not look at her assailant. Therefore she could well be wrong in the identification of the accused.

Defence counsel noted that Pearl gave a statement to the police on March 8, 2012, in which she was unable to describe the clothing that the assailant wore at the time of the attack. She was not wearing her glasses during the assault and the lighting was dim in the living room. [ 62 ] Defence counsel submitted that the Court should not find that the accused was responsible for the theft of Pearl’s purse.

It was noted that Pearl was in the hospital for three to four days and it was only after this passage of time, upon her return to her apartment that Pearl was of a mind that her purse was missing. [ 63 ] While conceding that the front door locks were changed, Defence counsel submitted that there was no evidence as to whether or not the patio door lock was changed or whether the patio door was secured over the three to four days that Pearl was in the hospital. [ 64 ] Defence counsel further submitted that the evidence given by Pearl in relation to the purported screwdriver was ambiguous.

It was submitted there was conflicting evidence as to whether the assailant dropped the screwdriver when he was slapped by Pearl in the face, or whether she managed to either grab, or knock, the screwdriver from the hand of the assailant. In any event, it was noted by Defence counsel, no screwdriver was ever located. [ 65 ] In relation to the bite to the right thumb of Pearl, Defence counsel submitted that the evidence did not establish beyond a reasonable doubt that the bite was caused by the accused.

On this point, Defence counsel noted that the accused was missing many of his teeth in the upper and lower gums. [ 66 ] In addition, though swabbed for DNA analysis, no DNA of value was located. Indeed, Defence counsel noted that no DNA substance was taken from the accused by the police which could have, potentially, strengthened the case against the accused. [ 67 ] Defence counsel submitted that Pearl's evidence to the effect that the voice she heard when the assault commenced was that of the accused should be approached with caution.

In particular, it was noted that Pearl required the assistance of hearing aids which were not in place when she was attacked. [ 68 ] It was further submitted that the court should not accept as reliable the chain of custody evidence relating to clothing seized from the accused.

At best, it was submitted, the clothing, including the long johns that were retrieved from North Fraser Corrections Institution for DNA, was simply contained in a garment bag which may, or may not, relate to the accused. [ 69 ] It was further submitted by Defence counsel that numerous police investigators, including forensic investigators, were in Pearl's apartment through various stages of this investigation. It was noted in photographs of the apartment that some lights were on and some lights were off.

It was submitted there was conflicting evidence between Constable Reid who recalled that it was almost “impossible” to move the patio door on its rails, and Constable Hill, a forensic investigation officer, who testified she was able to open and close the patio door, though it did “stick”. [ 70 ] It was further submitted by Defence counsel that no fingerprints were identified on the patio door. In addition, there was no evidence from the police as to how the two toilet seat lids came to be in the upright position.

The only reliable evidence, it was submitted, would be that given by the accused, who testified that he used the toilet before taking his shower. [ 71 ] In relation to the accused's evidence that he fled the apartment because he was scared and panicky, Defence counsel noted that the actions of the accused, in the context of his background, would not be surprising due to his violent criminal record.

The accused’s actions at Pearl's apartment in which he took flight were not the actions of a desperate man after he attacked and robbed Pearl of her purse, but were the actions of a scared and panicky individual who believed he would be blamed for what ever had befallen Pearl. [ 72 ] It was further submitted that the accused had established protocols as to how he could secure drugs, such as having drugs “fronted” to him. [ 73 ] Defence counsel further submitted that once the accused was aware that he was “wanted”, he turned himself in.

The actions of the accused in taking flight from Pearl's residence until he decided to turn himself in, gave the accused the opportunity to reflect on what happened at Pearl's apartment. His actions were described by Defence counsel as being reactive to the situation at hand and that after he fled the apartment there was no “concerted effort to hide himself”. [ 74 ] Defence counsel submitted that the occupation of Pearl's apartment was not exclusive to Pearl and the accused.

It was submitted that it was while the accused was in the bathroom using the toilet, and then the shower, that entry was made by a perpetrator through the sliding patio door. It was this person who committed the “appalling” assault on Pearl for reasons that would only be known to this

person. When the accused left the bathroom and found Pearl on the floor in the living room his actions in taking flight would certainlydemonstrate poor judgment but would not establish criminal intent. LEGAL FRAMEWORK [75] Attempted murder is defined by Section 239 (1)(

b) of the Criminal Code as follows: Attempt to commit murder 239.

(1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable ... (

b) in any other case, to imprisonment for life. [76] A conviction for attempted murder requires proof of the specific intent to kill. R. v. Ancio, (SCC), [1984] 1SCR 225 is the leading case dealing with this intent. McIntyre, J at pages 248 – 251, informs of the approach to determining this intent inthe following language: The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include anintention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and213 of the Code.

I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill. ... It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon ahigher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit inthis argument. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at thecompletion of the full crime of murder, should have any lesser intent.

If there is any illogic in this matter, it is in the statutorycharacterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill. A mentalstate falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravatedassaults, but not to a conviction for an attempt at murder. For these reasons, it is my view that Lajoie should no longer be followed. [77] The Crown must also establish beyond a reasonable doubt that an accused acted with subjective foresight of the consequencesof his conduct.

In R. v. Vukaj, 2012 BCSC 1396, Mdm. Justice Griffin addressed this requirement at paras. 337 and 338 as follows: Did the Accused Have the Specific Intent for Attempted Murder? [337] In order to prove that the accused is guilty of attempted murder, the Crown must prove that the accused had the specific intent tokill the complainant. As summarized in R. v. Reeves, 2012 BCCA 98 at para. 10, relying on the decisions the decisions of the SupremeCourt of Canada in R. v. Ancio, (SCC), [1984] 1 S.C.R. 225, and R. v.

Logan, (SCC), [1990] 2 S.C.R.731: The Crown must prove the accused acted with subjective foresight of the consequences of his conduct. Objective foresight of theconsequences will not suffice. [338] The trier of fact must use common sense, drawing inferences from all of the circumstances, in determining whether or not theCrown has proven beyond a reasonable doubt that the accused had the specific intent to kill. [78] Robbery is defined by s. 343 of the Criminal Code as follows: Robbery 343. Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threatsof violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses anypersonal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [79] This

section describes the offense of robbery. Every person who steals and uses violence or threats of violence to another personor property in order to overcome resistance to the stealing or to extort whatever is stolen commits robbery. [80] By operation of s. 344(1)(

b) of the Criminal Code anyone convicted of robbery is liable to imprisonment for life.

[81] Aggravated assault is defined by s. 268 of the Criminal Code as follows: 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. [82] There can be no doubt that in this case Pearl was attacked with such ferocity that the wounds she sustained establish beyond anyreasonable doubt that she was subjected to an aggravated assault. This was never contested by Defence counsel. [83] Assault with a weapon is defined by s. 267 of the Criminal Code as follows: Assault with a weapon or causing bodily harm 267. Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, or (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. [84] In this case the Crown has specifically charged the accused with using a screwdriver as a weapon in assaulting Pearl. Havingparticularized a screwdriver as the weapon, then the Crown must prove beyond a reasonable doubt that a screwdriver was used in theassault on Pearl. [85] The leading case in British Columbia that deals with this issue is R. v. Katsiris, 2008 BCCA 351. In Katsiris, the respondentwas charged with assault with a weapon being a piece of broken glass.

At the conclusion of the evidence the trial judge was unable todetermine what the respondent was holding in her hand and found the accused not guilty. [86] On appeal by the Crown, Donald, JA found that the Crown was bound by the particulars in the indictment. As support for thisproposition, Donald, JA quotes the following passage from R. v. Saunders, (SCC), [1990] 1 SCR 1020 at para. 1023where McLachlin, J (as she then was) wrote: I am of the view that the appeal must be dismissed. It is a fundamental principle of criminal law that the offence, as particularized in thecharge, must be proved. In Morozuk v.

The Queen, (SCC), [1986] 1 S.C.R. 31, at p. 37, this Court decided that once theCrown has particularized the narcotic in a charge, the accused cannot be convicted if a narcotic other than the one specified is proved.The Crown chose to particularize the offence in this case as a conspiracy to import heroin. Having done so, it was obliged to prove theoffence thus particularized.

To permit the Crown to prove some other offence characterized by different particulars would be toundermine the purpose of providing particulars, which is to permit "the accused to be reasonably informed of the transaction allegedagainst him, thus giving him the possibility of a full defence and a fair trial": R. v.

Côté, (SCC), [1978] 1 S.C.R. 8, at p.13. [87] Consequently, if the Crown proves beyond a reasonable doubt that the accused is responsible for the assault on Pearl, but hasnot proven beyond a reasonable doubt that the weapon used in the commission of the assault on Pearl was a screwdriver, as particularizedin the indictment, then the accused cannot be found guilty of assault with a weapon but rather would be convicted for assault simpliciter: Katsiris at para. 18. ANALYSIS (

i) DNA [88] The presence of DNA can be a powerful evidentiary tool in determining guilt or innocence in criminal proceedings. However, acourt must be careful to not be overwhelmed by DNA statistical probabilities and attributions. The evidence of DNA in this case islimited to the identification of the blood on the exterior right knee of long johns purported to be those of the accused. [89] Julia Harnett was an expert called by Crown counsel to identify the blood deposit located on the long johns through DNAanalysis. Ms. Harnett was able to identify the blood as being the blood of the victim Pearl.

She was not able to say when that blood mayhave been deposited. [90] I am satisfied from a careful review of the evidence of Ms. Harnett that Crown counsel has established the theoretical validity ofthe scientific techniques used in the DNA testing in this case and that the Crown has established beyond a reasonable doubt that theblood deposit located on the long johns is the blood of Pearl.

(ii) Chain of Custody of the Long Johns [ 91 ] It was submitted by Defence counsel that the Crown has not established beyond a reasonable doubt that the long johns that were analyzed for DNA by Ms. Harnett were those of the accused.

In particular, it was argued that the paper trail documenting the chain of custody of the long johns fell short of establishing that the chain of custody was reliable. [ 92 ] It was submitted by Defence counsel that there was no evidence called to establish that the accused was the only “Kenneth Kirton” held at North Fraser Regional Correctional Center. [ 93 ] On March 6, 2012, Deputy Sheriff Stevan Crnogorac was dispatched to the registry of the courthouse at Main Street in response to a person who had surrendered himself. Deputy Sheriff Crnogorac received an arrest warrant for the accused.

Deputy Sheriff Crnogorac testified that he confirmed with the individual at the counter that he was the individual subject to the arrest warrant. The name on the warrant was the accused’s. Thereafter Deputy Sheriff Crnogorac confirmed that he completed a document called “Vancouver Jail Form 8” in which unique arrest information pertaining to the arrestee is noted. [ 94 ] The Jail Form 8 was then taken by the Deputy Sheriff with the arrestee to the Vancouver Police Department Jail booking area. The booking guard on duty, Constable Michael Gardner, booked into custody an individual by the name of “Kenneth Kirton”.

This individual was searched and personal effects placed in an effects bag numbered 078 which ultimately accompanied this individual to North Fraser Regional Correctional Center. [ 95 ] Correctional Officer Johnny Young was working at North Fraser Regional Correctional Center on March 6, 2012, and confirmed that he booked in an individual by the name of “Kenneth Kirton”. Officer Young testified that personal effects bag number 078 accompanied this individual.

All of this was confirmed through a chain of documentation that accompanied this individual from the Main Street courthouse and ultimately to the Correctional Center. [ 96 ] Officer Young completed a unique inventory document used by British Columbia Corrections Branch in which an inmate on March 6, 2012, is identified as “Kenneth Nolan Noel Kirton”. The personal effects noted on the document relate to number 078. Amongst other items, it is noted at item 16 that the underwear placed in personal effects were “Grey long johns”.

There is an inmate signature clearly located on this document and bag seal number 0372901 is assigned to the personal effects. [ 97 ] The contents of the personal effects believed to be those of the accused were ultimately seized by police investigators assigned to the case involving the attack upon Pearl. The contents were photographed for forensic purposes. The long johns were analyzed for DNA by Ms.

Harnett at which time she concluded that the blood located on the long johns was identified to Pearl. [ 98 ] While the various witnesses in relation to the chain of custody issue were unable to make an in court identification of the accused I am satisfied beyond a reasonable doubt that it was the accused who surrendered himself on March 6, 2012, at the Main Street courthouse, and that documentation that was completed and presented to this court further establishes beyond a reasonable doubt that the chain of custody of the personal effects of the accused, in particular the long johns, was not broken. [ 99 ] It would be speculative on my part to find that there may have been more than one Kenneth Nolan Kirton being an inmate at North Fraser Regional Correctional Center on March 6, 2012, through to the time that police investigators seized the personal effects believed to be those of the accused. (iii) The Purse [ 100 ] It was submitted by Defence counsel that in relation to the charge of robbery, the Crown has not established beyond a reasonable doubt that Pearl’s purse was stolen on March 4, 2012.

It was submitted that Pearl was in the hospital for three if not four days, that the Crown has not established that Pearl's apartment was properly secured during that time frame. [ 101 ] It was the theory of Defence counsel that while the police did see to changing the lock on the front door, the evidence was not clear that the patio door was ever properly secured after the police had concluded their investigation at the apartment.

It was noted by Defence counsel that there was conflicting police evidence over whether the patio door was almost impossible to move or was capable of movement. [ 102 ] Pearl testified that when she observed the accused at her patio door and agreed to let him in to spend the night, it required both herself and the accused to open the door.

Pearl also testified that when she returned to her apartment after being discharged from the hospital, the patio door was difficult to move and she observed what appeared to be pry marks on the patio door. [ 103 ] Pearl further testified that the only item that was missing from the apartment when she returned after being discharged from the hospital was her purse. Likewise, police investigators went through the apartment with Pearl's roommate who had been away for the weekend. She did not note anything that was missing. [ 104 ] There is no question that Pearl was subjected to a violent assault.

Pearl testified that at the end of this violent assault she heard noises consistent with the zippers on her purse being manipulated. On this issue I find the evidence of Pearl to be credible, reliable and trustworthy that she had placed the purse close by her cot, and whether it was the accused, or another perpetrator as asserted by the accused, who committed this violent assault, the purse was stolen immediately following the assault. [ 105 ] I find that the Crown has established beyond a reasonable doubt that Pearl's purse was stolen from her apartment on March 4, 2012.

(iv) The Screwdriver [ 106 ] Defence counsel submitted that the charge that the accused assaulted Pearl with a screwdriver could not be supported by the evidence in this case. Crown counsel took the position that Pearl gave credible and reliable evidence that what she saw in the hand of her assailant was a screwdriver. [ 107 ] No screwdriver was ever found at Pearl's apartment, though, in her evidence, she thought she had knocked the screwdriver to the floor near her cot. She testified that initially she thought her assailant was attacking her with a pen.

However, as the assault continued she realized that she was being attacked with a screwdriver. [ 108 ] While Pearl sustained some significant injuries to her head, face and upper body consistent with a weapon being used, no evidence was called to assist the Court in determining what type of weapon would cause the injuries sustained by Pearl. [ 109 ] At the time of the assault Pearl was not wearing her glasses. In her evidence she stated that the assailant was the accused and that after the assault commenced she closed her eyes as she did not want to look at the accused.

Pearl testified in direct examination that she recalled that her reading light was on, as was the television.

She testified in cross-examination that the lighting in the living room was relatively dim. [ 110 ] I accept the evidence of Pearl that when she was released from hospital and returned to her apartment, she observed pry marks located on her patio door frame consistent with someone trying to open the door with a tool. [ 111 ] Whether it was the accused, or another perpetrator, as asserted by the accused, who attacked Pearl, it is clear that the Crown has established beyond a reasonable doubt that a tool of some sort was used. It is likely that this tool was a screwdriver.

However, in weighing the evidence in this case, I find that the Crown has not established beyond a reasonable doubt that the weapon used by the assailant was a screwdriver. (

v) Identification of the Assailant [ 112 ] The evidence of Pearl and the evidence of the accused are diametrically opposed. Pearl’s evidence identifies the accused as her assailant. The accused does not question that he was at Pearl's apartment at the time of the assault; rather, he was present but while using the bathroom decided to have a shower when he heard some commotion in the apartment. [ 113 ] The accused testified that when he came out of the bathroom, in the dim light, he saw Pearl lying on the floor.

He testified that he saw some blood and while he did not know what had happened to Pearl, he panicked, was scared he would be blamed for whatever happened to Pearl, and fled. [ 114 ] I was impressed by the evidence given by Pearl. She gave her evidence in a straightforward manner. There were some inconsistencies in her testimony. Indeed, she was incorrect with respect to timing of events in her apartment and she may have been wrong as to what lights were on or off at the time of the assault.

However, I do not find the inconsistencies had any material impact on her testimony. [ 115 ] Pearl was certain that the television was on as she liked background noise when she went to bed. The bed that she made up for the accused was proximate to the location of her cot and the television. Pearl testified that she recalled the conversation that she had with the accused about her new granddaughter, Jessica. [ 116 ] There is nothing in her evidence, nor the evidence of the accused, that this conversation did not take place.

Even though she was not wearing her hearing aids this conversation took place between the two of them. The evidence of Pearl and the accused establish that they have known each other for over a decade. Obviously, Pearl would know the face of the accused. [ 117 ] I appreciate the defence position that Pearl was unable to give a clothing description of her assailant to the police when she was interviewed after the assault. I find that little turns on that omission. In direct examination and cross-examination, Pearl maintained that the assailant was the accused. [ 118 ] I find Pearl to be a credible witness.

While finding Pearl to be a credible witness, I must also determine whether her evidence is reliable and trustworthy in identifying the accused beyond a reasonable doubt as her assailant. Particularly when he denies attacking her as he was having a shower at the time of the assault. [ 119 ] Accordingly, an assessment must be made of the credibility and reliability of the evidence advanced by the accused in which he denies that he was the assailant.

I find that at times, his testimony explaining his actions at Pearl’s apartment and the days following the assault did not make sense. [ 120 ] On March 4, 2012, for some unexplained reason, the accused asked Pearl if he could use her washroom. In direct examination, with respect to the use of the washroom, the accused testified that he had always used the washroom in the past without asking Pearl. However, in cross-examination the accused denied saying that he never asked for permission in the past in the following exchange: Q I see.

I understood your evidence on the last day is that you didn't ask to use the washroom when you'd been there before? A No, I never said that. Q You didn't say that?

A No. (Transcript, November 16, 2012, Page 7, Lines 35 - 40) [ 121 ] Likewise, when the accused was asked in cross-examination if he asked Pearl for permission to take a shower, he initially took the position that he did make such a request, but then changed his evidence in the following exchange: Q Okay. Your evidence last day was you didn't ask to use the shower? A I did ask to use the shower. Q Your evidence was on the last occasion that you asked to use the toilet; do you agree with that? A Oh, okay, yeah, okay, well, whatever. Yeah, I'm sorry. Yeah. Q Well, what you said was -- A Okay.

Q -- on the last occasion -- A Yeah. Q -- you asked to use the toilet and you didn't get a response? A Yeah, I did ask to use the toilet, yeah. But then I went to the toilet that's when I made up my mind to have a shower. (Transcript, November 16, 2012, Page 13, Lines 9 - 24) [ 122 ] In relation to his walk to Pearl's apartment, the accused testified in direct examination that he went directly to her apartment, but in cross-examination recalled that he left out the fact that he had stopped at his mother's residence.

On this point, the following exchange took place between the accused and Crown counsel: Q Because your lawyer asked you if you went straight there? Straight from the Native Corner to Pearl's house and you answered yes? A Yeah. Q You understood that question? A Yeah, I understood it, yeah. I did make a stop but I just, like -- I'm just now going out -- in my mind was going straight there. Like, my mom never answers the door anyway so I'm -- my mind is already going to Pearl's because I know -- I just decided to try my mom because she never answered the door but I figured I'd try anyways so...

Q But you left that part out? A Okay. Q You understood the question? A Yeah. Q Going straight there? A Mm-mmm. Well, I made a stop, yes. (Transcript, November 16, 2012, Page37, Lines 20 - 37) [ 123 ] It did not make sense that the accused would simply abandon Pearl when he found her lying on the floor. It must be kept in mind that the accused himself cared deeply for Pearl and viewed her “like a mother”.

At the time that he fled the apartment he clearly did not know if a crime had taken place or if she was suffering from some medical condition. [ 124 ] Absolutely nothing was done to assist Pearl; however, the accused did have the presence of mind to dress himself before he fled the apartment. In cross-examination, the following exchange took place between the accused and Crown counsel: Q And you're so freaked out that you don't think to help her, right?

A Yeah. Q You don't think to roll her over to see what's wrong with her, right? A Yes. Q You don't think to call 9-1-1 to get her some help, right? A Yes. Q In fact, you do nothing at all to assist her, right? A That's right, yeah. Q But you do have the presence of mind to grab your jacket, right? A Yeah. Q And you do have the presence of mind to put your shoes on? A Yeah. (Transcript, November 16, 2012, Page 28, Lines 16 - 33) [ 125 ] The accused testified that it was his plan after sleeping at Pearl's apartment to go back to his residence in Surrey.

However, when he fled Pearl's apartment the accused testified that he went back into the downtown area of Vancouver. His explanation for this conduct was noted in his cross-examination in the following exchange: Q Why didn't you just head home when you left Pearl's? You walked around on Hastings, the SkyTrain starts up, why not head home? A That's what I always do. I go cruise around all over the place all the time. Q Your whole plan in going to Pearl's was to stay there until the train started you said -- A Mm-mmm. Q -- until you could -- until you could -- so you'd catch the train home?

A Things always change all the time. I've got an explanation -- explanation, when you're downtown in the area, things change from time to time. That's just the way life is down there, down in the Hood. Q But you had a home? A Yeah. Q You said it was on 122nd, I think? A Yeah. (Transcript, November 16, 2012, Page 42, Lines 18 - 36) [ 126 ] The accused conceded in cross-examination that when he left Pearl's apartment, he was starting to become drug sick. The accused agreed that the easiest thing to do to maintain his addiction would be to go home and get his methadone.

This he did not do. [ 127 ] Rather, he hung out for one to two days in Vancouver with Binner Jeff. What was striking in relation to this evidence was that there was no mention whatsoever of concern over the welfare of Pearl. For someone who was in a state of panic and was scared that he might be blamed for whatever had befallen Pearl, it would not appear that Pearl’s condition was a focus of concern for the accused. He only became concerned after he was told by Binner Jeff that he was wanted, at which time his surprised reply to Jeff was: “I’m like, really?

And he’s like yeah”. [ 128 ] During the course of his testimony the accused was asked by the court to clarify whether the patio blinds were open or closed in the following exchange: THE COURT: But the blinds are closed, are they, the vertical blinds, they're closed? A No, they're not closed. THE COURT: They're open?

A The blinds are open. You can see -- when you -- when I went there you could see through everything. You can see through the living room, through the -- and even the, umm -- umm, the balcony door was like that. How it was in on the camera here is the police closed the windows. THE COURT: The police closed it? A They -- they were closed on here but when they -- when I was over there you can see through. MR. ANDERSON: Q All right. So let's -- let's flesh that out a little bit maybe. When you come out of the bathroom then your evidence is the blinds are open? A Yeah.

Q And we're talking about the blinds in the patio door which you used to enter into Pearl's apartment? A Mm-mmm. Q Those blinds are open? A Yeah. (Transcript, November 16, 2012, Page 21, Lines 15 – 39) [ 129 ] Crown counsel presented the accused with a photograph of the patio door blinds taken by the police which clearly showed that the blinds were closed. The accused viewed the photograph and the following exchange took place between the accused and Crown counsel: A You can see an outside light up here. You could see a light over here. MR.

ANDERSON: Q I'm not referring -- no, you're referring to the blinds right over the television. A Oh, okay. Well, those ones -- Q And I'm talking about the patio doors. A Oh, okay, well -- Q Those are closed, right? A Oh, yeah, okay. If that's what you say. THE COURT: No, it's not what he says. Do you recall them being like that when you left Pearl's apartment? A Umm, yeah, basically. Yeah. MR. ANDERSON: Q Okay. A I guess, yeah. Yes. (Transcript, November 16, 2012, Page 58, Lines 17 – 33) [ 130 ] The accused testified that his last drug dosage prior to going to Pearl’s was at approximately 4 pm.

He further testified that he required a “ten paper” every five hours to simply maintain his addiction or, as the accused put it, to get “legs”. [ 131 ] It was clear from the evidence of the accused that his drug addiction governed his life. The accused's drug addiction had a significant impact on him both physically and mentally. The extent of this impact was revealed in the following exchange in cross- examination: Q Is that about right for you, about every five hours you're going to need -- A Yeah. Q -- a paper? A That's usually -- that's usually right, yeah.

Q Okay. Now, I've got a pretty good idea what the answer's going to be, when you don't get your paper you start to get sick? A Yeah. Q And the longer you go without your paper, the sicker you get? A Yeah. Q And eventually if you don't get your heroin or your methadone, you're basically wishing you were dead, is that a fair description of how sick you get? A Yeah. Q And at that point you'll do anything to get your next paper, right? A Well not really anything, but I'll do whatever I have to do if I have to do it. Q You will do whatever you have to do to get your next paper, right?

A Yeah. (Transcript, November 14, 2012, Page 38, Lines 34 - 47 and Page 39, Lines 1 – 10) [ 132 ] I find that at the time the accused arrived at Pearl's apartment, he was in need of drugs to avoid becoming drug sick. I accept the evidence of the accused that his drug addiction would drive him to do whatever he had to do to get his “next paper”. [ 133 ] I do not believe the accused’s testimony that he was in the washroom having a shower when Pearl must have been attacked by an intruder who came into the apartment through the patio door.

The person who was ideally located and had the opportunity to attack Pearl was the accused. [ 134 ] I reject the evidence of the accused that he panicked and was scared of being blamed because of his past violent criminal history when he fled the apartment. It simply does not make sense that he would abandon someone who was like a mother to him when he did not know what had happened to her.

Nor did it make sense that he would offer no assistance to Pearl, but rather flee back into the downtown of Vancouver. [ 135 ] I find as well that his conduct when he “hung out” with Binner Jeff showed a complete disregard for the welfare of Pearl.

This was not a time for “reflection” by the accused in relation to events at Pearl's apartment, rather his actions when he “hung out” with Binner Jeff were the actions of a man who simply did not care about the welfare of Pearl. [ 136 ] If the accused was so scared and panicked about possibly being blamed for what ever had befallen Pearl when he fled her apartment, why then would he express such surprise when he was told by Binner Jeff that he, the accused, was wanted by the police? The accused testified that his response was: “I’m like, really? And he’s like yeah”.

That response is entirely inconsistent with the testimony of the accused that he feared being blamed for whatever had befallen Pearl. [ 137 ] The doctrine of reasonable doubt applies to the issue of credibility as it does to every other issue in a criminal trial. If I accept the evidence of the accused then I must acquit him. If I have a reasonable doubt based on the evidence of the accused, or on the whole of the evidence, I must acquit him.

If I cannot decide whether to accept or reject the evidence of the accused then I must acquit him. [ 138 ] I find and accept the evidence of Pearl to be credible, reliable and trustworthy. I accept her evidence that the voice she heard telling her to “be quiet, do not make noise” when she was being assaulted was the voice of the accused. This was the same voice she heard when she was talking to the accused about her new granddaughter.

I further find and accept the evidence of Pearl to be credible, reliable and trustworthy when she identified that the person who commenced the assault was the accused. [ 139 ] I reject the evidence of the accused as not credible in his denial that he was the person who assaulted Pearl. I find that the Crown has established beyond a reasonable doubt that the person who assaulted Pearl on March 4th, 2012, was the accused, Kenneth Nolan Kirton.

APPLYING THE LEGAL FRAMEWORK TO ANALYSIS FINDINGS [ 140 ] Having found that the accused was Pearl’s assailant, I must now determine if the evidence establishes proof of guilt beyond a reasonable doubt with respect to any of the four charges laid against the accused. [ 141 ] I accept the evidence of the accused that he had consumed four pints of beer during the evening of March 3, 2012. I also accept his evidence that he did drugs around 4 pm on March 3, 2012. I also find that the accused suffered from a severe drug addiction at the time that he assaulted Pearl. Indeed, his drug addiction governed his life.

The ingestion of the alcohol and the drugs did impact the accused’s judgment. [ 142 ] I find that at the time he assaulted Pearl he was becoming drug sick and needed to get more drugs. That is the reason why he was at Pearl's apartment. He was looking for something to steal. Whether he expected Pearl to be present or not is unclear. However, I find it was the accused who was attempting to enter Pearl's apartment by prying on her patio door with a tool of some sort. [ 143 ] When the accused was in Pearl's apartment I do not find that she was a centre of attention for the accused.

Rather, his focus was on something of value which would allow him to get some drugs as soon as possible. I find that it was Pearl's purse that he saw either immediately before or after his violent attack of Pearl.

[144] I find that Pearl was stabbed on numerous occasions by the accused and was also bitten by the accused with his side teeth whenshe was defending herself. I also find that prior to the cot breaking and the two of them falling to the floor, the accused did put a pillowover the side or back of Pearl's head. I accept Pearl's evidence that the pillow was forcefully applied and that she was terrified she wouldbe smothered. [145] I accept Pearl's evidence that the only words spoken to her at the time of the assault by the accused were “be quiet, do not makenoise”.

I also accept her evidence that the stab wounds were not deep. I find that the stab wounds were not life-threatening. I also findthat Pearl was able to find an air space when she was covered by the pillow, and that the subsequent collapse of the cot caused theaccused to release the pillow. [146] Perhaps the accused specifically intended to murder Pearl, which would have allowed him to get her purse, and potentiallyprevent his humiliation within his First Nations community for attacking an Elder. Perhaps he thought her death would make it lesslikely that he would be identified as the perpetrator.

However, I find that his state of mind from the consumption of alcohol and his drugaddiction on March 4, 2012, severely impacted his thinking process. [147] As was noted in Ancio, proving attempted murder beyond a reasonable doubt requires proof of the specific intent to kill. McIntyre, J at page 251 had this to say in part: …. The mens rea for attempted murder is, in my view, the specific intent to kill.

A mental state falling short of that level may well leadto conviction for other offenses, for example, one or other of the various aggravated assaults, but not to a conviction for an attempt atmurder…. [148] Perhaps murder was in the mind of the accused on March 4, 2012, or, perhaps he assaulted Pearl in such a violent way to keepher quiet. I find the evidence in relation to the attempt to murder to be equivocal.

I do not find that the evidence establishes beyond areasonable doubt that the accused had the specific intent to murder Pearl by stabbing her and smothering her, and accordingly, I find himnot guilty of that offense. [149] In relation to the robbery charge, I found that the Crown established that Pearl's purse was stolen from her apartment on March4, 2012. It was the purse that would allow the accused to get more drugs.

Once Pearl was quiet, the accused took her purse, and then hefled the apartment to return to downtown Vancouver to get more drugs. [150] I am satisfied that the Crown has established beyond a reasonable doubt that the accused is guilty of the robbery of Pearl onMarch 4, 2012. [151] As noted at paragraph 82 of this Judgment, there is no question that Pearl was subjected to an aggravated assault. The ferocity ofthe assault, the extent of the injuries, the emotional trauma, and the continuing pain and suffering experienced by Pearl, have all had aprofound impact on her.

I am satisfied beyond a reasonable doubt that the Crown has established that the accused is guilty of theaggravated assault of Pearl on March 4, 2012. [152] In all likelihood the accused attacked Pearl with a screwdriver. Pearl testified that she initially thought that the weapon was a penbut during the course of the assault she realized that the weapon was a screwdriver. However, I find that once the assault wascommenced by the accused, Pearl did not want to look at what was taking place.

I further find that the light was relatively dim in theliving room and Pearl was not wearing her eyeglasses. [153] Though a thorough search was conducted of her apartment a screwdriver was not located. No forensic or medical evidence wascalled to identify what caused the stab wounds.

It would make sense that the accused would have a screwdriver to use when he was“binning”; however, that would not establish as a fact that the accused used a screwdriver to stab Pearl. [154] As was noted in the Legal Framework it is incumbent on the Crown to establish a particularized weapon beyond a reasonabledoubt in relation to a charge under s. 267(

a) of the Criminal Code. I find that the Crown has not established beyond a reasonable doubtthat the accused used a screwdriver while committing his assault upon Pearl. Accordingly, he must be acquitted of that charge butconvicted of the included offense of assault simpliciter. [155] In light of my findings of guilt, and prior to registering convictions, I will hear from counsel as to whether the rule in Kienapplev. The Queen, (SCC), [1975] 1SCR 729, commonly known as the “rule against multiple convictions”, applies. __________________________________ The Honourable Judge G. Rideout Provincial Court of British Columbia