R. v. Marquette, 2017 BCPC 438

Citation: R. v. Marquette 2017 BCPC 438 Date: 20170804 File No: 236155-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. KEESE DANIEL SCOTT MARQUETTE EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. LOW Counsel for the Crown: J. Allingham Counsel for the Defendant: J. Schacter, Articled Student (as Agent for J. Desbarats) Place of Hearing: Vancouver , B.C. Date of Hearing: August 4, 2017 Date of Judgment: August 4, 2017 [ 1 ] THE COURT: Keese Daniel Scott Marquette is charged with assaulting Sean Atkinson with a weapon and causing him bodily harm.

The charges arose from a fight on July 7, 2014 at the Nanaimo SkyTrain station involving Mr. Marquette, Mr. Cronenberg, Samantha Boeing, Sean Atkinson, Christopher Forrentos and Kyle McRoberts. [ 2 ] Mr. Marquette, using a small folding knife, stabbed Mr. Atkinson in the leg during a fight. Mr. Marquette claims he stabbed

Mr. Atkinson in self-defence and to protect Mr. Cronenberg. [3] The Crown does not accept that in the circumstances of the fight, this defence is available to Mr. Marquette. [4] The Crown called Mr. Atkinson and Mr. Forrentos. Mr. Marquette and Mr. Cronenberg testified for the defence. Formaladmissions were filed and I was provided with a booklet of photographs. [5] In addition, two surveillance videos from the SkyTrain station were entered as exhibits.

One video showed the interaction ofthe parties in the area of the ticket vending machines and the bottom of an escalator and the other video showed the interaction of theparties at the bottom of the escalator and a parallel stairway. [6] I was provided with two authorities which I have considered. [7] The Crown agrees that there is an air of reality to the defence raised by Mr. Marquette. Accordingly, as instructed by theSupreme Court of Canada in R. v. Cinous, 2002 SCC 29 , [2002] S.C.J.

No. 28, I must weigh all the evidence admitted duringthis trial to determine whether the Crown has proved beyond a reasonable doubt that the defence is not supported by the evidence. Anydoubt in that regard must be resolved in Mr. Marquette's favour. [8] According to s. 34(1) of the Criminal Code, which came into force in 2013, there are three elements necessary to establish thedefence of self or others. The Crown agrees that Mr. Marquette reasonably believed during the incident that force was being used orthreatened to be used against himself and Mr. Cronenberg, and that Mr. Marquette stabbed Mr.

Atkinson for the purpose of defendingand protecting himself and Mr. Cronenberg from that use or threat of force, thus satisfying the two elements. [9] However the Crown submits that in the circumstances of the events of July 7, 2014, it was not reasonable for Mr. Marquette toresort to stabbing Mr. Atkinson in order to defend himself and protect Mr. Cronenberg. While acknowledging that Mr. Marquette wasentitled to use some degree of force to protect himself and Mr. Cronenberg, it is the Crown's position that stabbing Mr. Atkinson was notproportionate to the degree of violence deployed by Mr.

Atkinson or threatened by Mr. Forrentos and Mr. McRoberts. [10] According to the Crown, Mr. Marquette has not therefore satisfied the third element of s. 34(1). On that basis, Mr. Marquette isnot therefore entitled to be acquitted of the charges on the basis he acted in self-defence and to protect Mr. Cronenberg by stabbingMr. Atkinson's leg with a knife. [11] Section 34(2) of the Criminal Code directs me to consider nine different factors in determining whether stabbing Mr. Atkinsonwas reasonable in the circumstances.

While s. 34(2) does not limit me to those factors, counsel agree and I concur that of those factors itis only necessary in this case to consider:

a) the nature of the force or threat used by Mr. Marquette and Mr. Cronenberg;

b) the extent to which the use of that force was imminent and whether there were other means available to Mr. Marquette torespond to that force;

c) Mr. Marquette's role in the incident;

d) Mr. Marquette used a knife as a weapon;

e) the size, age, gender and physical capabilities of the parties involved in the incident;

f) the nature, duration and history of any relationship between the parties to the incident;

g) any history of interaction or communication between the parties to the incident, and

h) the nature and proportionality of Mr. Marquette's response to the use or threat of force. I have heard evidence pertaining to all eight factors. [12] Mr. Marquette and Mr. Cronenberg were friends. Sometime prior to July 7th, Mr. Cronenberg and Ms. Boeing had ended theirromantic relationship. Mr. Atkinson, Mr. Forrentos and Mr. McRoberts were friends of Ms. Boeing. Although Mr. Cronenberg withacquainted with Mr. Atkinson, Mr. Marquette was not. Neither of Mr. Cronenberg or Mr. Marquette knew Mr. Forrentos orMr. McRoberts. [13] Mr. Marquette, Mr. Cronenberg and Mr. Forrentos were 18 years old, while Mr.

Atkinson was 19 years old as of July 7th. [14] Although Mr. Atkinson was slightly larger, both Mr. Atkinson and Mr. Cronenberg were around six feet tall and both weighedabout around 170 pounds. Mr. Forrentos was about five foot seven, and weighed 150 pounds. Mr. Marquette was five foot nine andweighed 120 to 130 pounds. Mr. McRoberts was well over six feet tall, and was the heaviest set of the five men. [15] There is no evidence that any of the parties were intoxicated on July 7th. There is no evidence that anyone other thanMr. Marquette was carrying any sort of weapon. [16] Mr. Cronenberg and Ms.

Boeing had agreed to meet at the Waterfront SkyTrain station to exchange each other's personaleffects. In particular, Mr. Cronenberg expected to deliver some clothing to Ms. Boeing while receiving from her his laptop. Mr. Cronenberg understood that Ms. Boeing would be accompanied at the meeting so he invited Mr. Marquette to accompany him. Thefour met the Waterfront Station. [17] While Mr. Cronenberg had brought Ms. Boeing's clothes, Ms. Boeing had left the laptop at her residence which was near the

Nanaimo station. The parties decided to move the exchange to the Nanaimo station to facilitate Ms. Boeing retrieving the laptop. The four travelled by SkyTrain to the Nanaimo station. [ 18 ] Mr. Marquette testified that after he returned from work to his North Vancouver home around 6:00 p.m., July 7th, he received a text from Mr. Cronenberg inviting Mr. Marquette to join Mr. Cronenberg while he met Ms. Boeing at the Waterfront station. The text also advised Mr. Cronenberg intended that he and Mr. Marquette would go out for drinks afterwards. [ 19 ] Mr.

Marquette, who at the time worked for his father, and lived at his mother's home, testified this is was the first time he had gone to Vancouver alone in the evening. [ 20 ] Ms. Boeing arrived with a female friend. Since Ms. Boeing had not brought Mr. Cronenberg's laptop, the meeting was adjourned to the Nanaimo SkyTrain station. The four took the SkyTrain accordingly. [ 21 ] While on the train, Mr. Marquette became concerned over Ms. Boeing's use of a cell phone and the odd looks she was giving him and Mr. Cronenberg. He relayed those concerns to Mr. Cronenberg, suggesting he call the police. Mr.

Cronenberg did so, calling the police non-emergency number. [ 22 ] The four arrived at the Nanaimo station. As they exited the station, Mr. Atkinson, Mr. Forrentos and Mr. McRoberts arrived by car. The two groups met outside the station. [ 23 ] Mr. Marquette testified that he and Mr. Cronenberg were confronted by Mr. Atkinson and his associates. In addition to using aggressive body language, such as clenching their fists and puffing themselves up, to demonstrate their physical capacities, the three made various threats to encourage [ 24 ] Mr. Cronenberg to hand over Ms. Boeing's clothes.

The threats included being beaten up, killed and involving the Hells Angels. [ 25 ] Mr. Marquette testified these threats thoroughly frightened him. He had not anticipated any sort of violent showdown. He had never had any experience with this sort of event. He did not know any of the three men confronting him, and he accepted the threats as genuine. [ 26 ] Mr. Marquette and Mr. Cronenberg retreated inside the station where Mr. Cronenberg again called the non-emergency number for the Vancouver police, seeking their assistance. [ 27 ] Ms. Boeing then joined Mr. Marquette and Mr. Cronenberg in the station. Ms.

Boeing then revealed she did not intend to return Mr. Cronenberg's laptop, while insisting her clothing be returned. Mr. Atkinson then approached the threesome. Mr. Cronenberg advised he would not hand over Ms. Boeing's clothes, walked away and mounted the escalator, which was taking him out of the area. Mr. Marquette followed, while keeping watch over Ms. Boeing's friends. [ 28 ] Ms. Boeing began screaming in protest at Mr. Cronenberg's departure with her clothes. Mr. Atkinson sprinted after Mr. Cronenberg, catching him on the escalator.

The two grappled and fell back down to the base of the escalator where they held each other by the throat and struggled. [ 29 ] Mr. Marquette attempted to separate the two as they struggled on the floor. Mr. Forrentos and Mr. McRoberts rushed over to the struggle, but Mr. Marquette repelled them by producing a knife from his pants pocket and waving it at them. During this melee, Mr. Marquette stabbed Mr. Atkinson's leg. [ 30 ] The fight moved over to the bottom of an immediately adjacent stairway which ran parallel to the escalator. Mr. Atkinson got Mr. Cronenberg into a choke hold. Mr.

Marquette demanded that Mr. Atkinson let Mr. Cronenberg go by the end of a five count, or he would stab Mr. Atkinson again. [ 31 ] At this point, a passerby came down the stairs and after a brief struggle disarmed Mr. Marquette. Mr. Forrentos, who had joined the fray, struck Mr. Marquette several times, and then the fight stopped. Mr. Forrentos also retrieved the knife and removed it some distance away, and left it on the floor the station. [ 32 ] Ms. Boeing, who had also approached, slapped Mr. Cronenberg and then she and her three friends left the station. Mr. Cronenberg and Mr.

Marquette, on the instructions of a transit officer, awaited the arrival of police. [ 33 ] Mr. Forrentos and Mr. Atkinson did not agree with Mr. Marquette's version of events outside the station. Both denied making any threats or making mention of the Hells Angels, although Mr. Forrentos alluded to the possibility someone else might have done this. [ 34 ] Mr. Forrentos described his group's comments as merely insulting puffery, mocking Mr. Cronenberg for calling the police and essentially calling Mr. Cronenberg a chicken, all with a view to encouraging him to hand over Ms. Boeing's effects. Mr.

Forrentos described Mr. Atkinson as calm and silent. [ 35 ] Whether or not someone mentioned the Hells Angels, I prefer Mr. Marquette's version of the events outside the station. His version was substantiated to a great extent by Mr. Cronenberg's evidence. Mr. Atkinson acknowledged that his recollection of events was a bit hazy due to the effluxion of time. Both Mr. Forrentos and Mr. Atkinson acknowledged they were present as a show of force in support of Ms. Boeing. Both acknowledged they were there prepared for a fight. [ 36 ] While Mr. Atkinson may have remained silent as both Mr. Forrentos and Mr.

Marquette testified, Mr. Atkinson contradicted Mr. Forrentos's evidence that he was calm and silent. Mr. Atkinson acknowledged that outside the station, he acted aggressively toward Mr. Cronenberg, getting in his face, clenching his fists and puffing himself up.

[ 37 ] So far as the events inside the station are concerned, the major discrepancy between Mr. Marquette's evidence and the evidence of Mr. Forrentos and Mr. Atkinson was when Mr. Marquette stabbed Mr. Atkinson's leg. Mr. Marquette testified this took place during the fight at the bottom of the escalator. Mr. Forrentos and Mr. Atkinson testified that Mr. Atkinson was stabbed after the countdown during the fight on the stairs. [ 38 ] I prefer Mr. Marquette's version. His version was substantiated to a large degree by the video evidence. Mr. Atkinson testified his recollection of events was somewhat hazy.

That is entirely understandable, given the effluxion of time since the events plus, at the time of the stabbing, he was engaged in a protracted fight with Mr. Cronenberg. The fight involved punching, choking, choke holds, kicking, and Mr. Atchison being thrown against a wall. I doubt Mr. Atkinson had much ability to accurately perceive, let alone accurately recollect the details of the fight. [ 39 ] Mr. Forrentos also testified the stabbing took place after the countdown. However, I have considerable reservations about the reliability of Mr. Forrentos's evidence.

Throughout his evidence, he sought to diminish the roles of himself and his colleagues. At one point when viewing the videos, he seemed amused by the serious events he was looking at. He testified that throughout Mr. Cronenberg appeared anxious to fight with Mr. Atkinson. That notion is completely contradicted by the video evidence, which shows Mr. Cronenberg walking away from Ms. Boeing without word or gesture. Indeed the Crown quite properly acknowledged that Mr. Atkinson was the aggressor. [ 40 ] That leaves the issue of the proportionality of Mr. Marquette's conduct. Both Mr. Cronenberg and Mr.

Marquette testified that the confrontation with Mr. Atkinson and his colleagues outside the station frightened them. [ 41 ] Regardless of what was or was not said outside the station, I accept that it was reasonable for Mr. Cronenberg and Mr. Marquette to be afraid for their safety. [ 42 ] First, there is no doubt that Mr. Atkinson and the others attended for the very purpose of intimidating Mr. Cronenberg into giving up Ms. Boeing's possessions. That [ 43 ] was their evidence. [ 44 ] Second, there is no evidence that either Mr. Cronenberg or Mr. Marquette acted in an aggressive manner.

Indeed all the evidence shows them in retreat from the aggression of Mr. Atkinson and company. [ 45 ] Third, Mr. Cronenberg and Mr. Marquette were outnumbered and outsized by Mr. Atkinson's group. [ 46 ] Fourth, Mr. Atkinson was not only the aggressor, he took that role from the moment he encountered Mr. Cronenberg. His aggression was such that Ms. Boeing can be seen in the video forcibly pushing Mr. Atkinson away from the scene while she discussed the situation with Mr. Cronenberg. Both Mr. Cronenberg and Mr. Marquette testified they did not act aggressively or make threats or respond in kind to what Mr.

Atkinson and company were saying. Their evidence in that regard was substantiated to a large degree by the video evidence. [ 47 ] When Mr. Atkinson determined to go after Mr. Cronenberg, he did so with considerable speed, even though Mr. Cronenberg was only a few steps distant. Mr. Atkinson immediately assaulted Mr. Cronenberg, grabbing him and causing both of them to fall down the escalator. Although Mr. Atkinson wound up under Mr. Cronenberg and Mr. Cronenberg had him by the throat, I accept Mr. Cronenberg's evidence that he at no time had control of Mr. Atkinson. Mr. Atkinson had Mr. Cronenberg by the throat.

Within seconds, Mr. Atkinson was able to get out from under Mr. Cronenberg. [ 48 ] Despite repeated demands by Mr. Cronenberg and Mr. Marquette, plus being stabbed in the leg, Mr. Atkinson continued his attack. He ultimately got Mr. Cronenberg in a choke hold and, to use Mr. Atkinson's words, choked Mr. Cronenberg out. Mr. Cronenberg testified he could not breathe and thought he would lose consciousness. [ 49 ] All the while, Mr. Forrentos and Mr. McRoberts were moving rapidly about the perimeter of the fight. I reject Mr.

Forrentos's evidence that they were merely observing the fight, which seemed to them to be a fair one. It appears to me from the video that they were initially intent on getting involved in the fight. Only Mr. Marquette brandishing a knife kept them at bay. [ 50 ] I have the following reservations about Mr. Marquette's evidence which centre around his possession of a knife. I accept Mr. Marquette's evidence that he routinely carried the knife as part of his carpenters tools, and that he was accustomed to carrying the knife in his pants pockets for those purposes.

However, I have considerable reservations that he had the knife with him during the events in question due to inadvertence, as he testified. [ 51 ] Mr. Marquette testified that when he accepted Mr. Cronenberg's invitation, and until he was confronted outside the SkyTrain station, he had no idea any sort of violent affair might be in the offing. After he accepted the invitation, he changed his work shirt but did not change his work pants and overlooked the knife in his right pants pocket. [ 52 ] I have difficulty accepting Mr.

Marquette's evidence that he recalled putting his cell phone in the same pocket but still did not notice the knife. I also found it very odd that merely because Ms. Boeing used her cell phone and looked at he and Mr. Cronenberg while they were travelling on the SkyTrain in a manner Mr. Marquette characterized as malicious, and frankly I do not know from the evidence what Mr. Marquette meant by that, Mr. Marquette was prompted to urge his friend to call the police. [ 53 ] Mr. Marquette did not testify to any other circumstance causing him concern at that point.

He did not describe the discussion at the Waterfront station as acrimonious. He did not testify that Mr. Cronenberg had expressed concerns about Ms. Boeing having mala fides . [ 54 ] I also note Mr. Cronenberg's rather vague evidence that he felt compelled to bring someone along because Ms. Boeing was doing so. I do not know from the evidence whether this concern was communicated to Mr. Marquette. However nothing to that moment

in time justified Mr. Marquette's requesting the involvement of the police. [ 55 ] I have a sense that Mr. Marquette and Mr. Cronenberg were not being entirely forthright when testifying about what was going on behind the scenes between Mr. Cronenberg and Ms. Boeing leading up to this meeting. [ 56 ] More significantly I reject Mr. Marquette's evidence in cross-examination that he merely had his hand on his right hip immediately before the fight. According to the video, from the time he left his post at the wicket, Mr. Marquette walked backwards toward the escalator where Mr. Cronenberg had gone.

During that entire time, he kept his hand on his right hip, next to his pocket. Even when he turned to run to the escalator as Mr. Forrentos and Mr. McRoberts moved in, his hand remained on his hip. That is not consistent with the way people normally move about. [ 57 ] Mr. Marquette testified that he had left home having forgotten about the knife in his pants pocket. He did not testify as to when he recalled the knife being there before producing it on the escalator. I reject the notion that in the melee at the base of the elevator it finally came to his mind that he had a knife. I have concluded that Mr.

Marquette always knew he had a knife in his pocket. [ 58 ] I am not prepared to go further and find that Mr. Marquette went out that night with Mr. Cronenberg expecting to be in a fight, but I am satisfied that Mr. Marquette had some concerns from the outset about the meeting he was going to and he had his knife along just in case he needed it. [ 59 ] Finally I do not accept Mr. Marquette's evidence that when he stabbed Mr. Atkinson's leg, he tentatively poked the knife at Mr. Atkinson. Mr.

Marquette demonstrated, while testifying to that effect, by making a somewhat tentative motion of his right arm to effect the stabbing. That is not consistent with what can be seen in the video at the moment Mr. Marquette testified he stabbed Mr. Atkinson. The motion of his right arm in that video is much more deliberate. [ 60 ] It is a very serious matter to produce and use a knife during a fight when no other person is wielding a weapon. The potential at that point for someone to be killed or badly injured becomes very high. I have already concluded that Mr. Cronenberg and Mr.

Marquette had good reason to be afraid for their safety. [ 61 ] I accept that other than Mr. Cronenberg's refusal to give up Ms. Boeing's effects and leaving with them, neither of those two men had to done anything to provoke the level of violence Mr. Atkinson brought to bear. [ 62 ] Mr. Marquette was only 18 and, I conclude, a somewhat naïve and inexperienced young man. [ 63 ] The law has been clear for many years that people cannot be expected in a violent situation to carefully measure their responses. Even if they had no intention to kill anyone or harm anyone's family, Mr.

Atkinson and his colleagues had made it very clear from the outset they planned to resort to considerable violence to protect Ms. Boeing's property. Events were unfolding very rapidly before Mr. Marquette. [ 64 ] There may have been other options open to Mr. Marquette as put to him by the Crown during cross-examination, but I note that Mr. Marquette did not have a lot of time to consider those options or to carefully evaluate the situation before him. [ 65 ] Despite my reservations about his credibility, I do not reject Mr. Marquette's evidence entirely. I am left with a doubt as to whether Mr.

Marquette was not acting in self-defence or to protect Mr. Cronenberg. I resolve that doubt in Mr. Marquette's favour and I acquit him of both counts on Information 235155-C-2 [sic, 236155-C-2]. [REASONS FOR JUDGMENT CONCLUDED]