R. v. Paul, 2013 BCSC 1680

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Paul, 2013 BCSC 1680 Date: 20130618 Docket: 31769-2 Registry: Williams Lake Regina v. Curtis Paul Before: The Honourable Mr. Justice Tindale Oral Reasons for Judgment Counsel for the Crown: E. Koresawa Counsel for the accused: W.J. Herdy Place and Date of Trial/Hearing: Williams Lake, B.C. April 30, May 1, and 2, 2013 Place and Date of Judgment: Williams Lake, B.C.

June 18, 2013 [ 1 ] THE COURT: Curtis Paul is charged on Indictment Number 31769-2 out of the Williams Lake Registry with a single count that reads as follows: Curtis PAUL, on or about the 10th day of January, 2012, at or near Williams Lake, in the Province of British Columbia, did commit aggravated assault of Robert Donald Bunton, contrary to Section 268(2) of the Criminal Code . [ 2 ] By way of an admission of facts filed as Exhibit 1 in this trial, the following is agreed:

a) Mr. Bunton was transported by ambulance from #12, 1406 Broadway Avenue North, in Williams Lake, to the Cariboo Memorial Hospital;

b) Mr. Bunton had an open wound to the right upper quadrant of his abdomen;

c) On January 10, 2012, Mr. Bunton underwent surgery as well as a second surgery on January 11, 2012; and

d) He was in the hospital for seven days. [ 3 ] Mr. Bunton further testified, in terms of his injuries, that he was unable to do any work for approximately one month after this incident. [ 4 ] Mr. Bunton testified that he attended at #12, 1406 Broadway Avenue in Williams Lake, which was the residence of his friend and employer, Kathy Elkins. He said that he later went three trailers up to #22 at 1406 Broadway Avenue to visit a friend by the name of Rusty. When he arrived there, a person by the name of Bernie and his girlfriend were present. Mr. Bunton stayed and had two beers. This took approximately one hour.

Then he went downtown to pick up fast-food, among other things. He returned to the residence at #22 about an hour and a half later with the food. There, he had approximately two or three more beers. When he first arrived, the individual by the name of Bernie and his girlfriend were present. Later, another man and woman attended whom Mr. Bunton did not know. He did, however, offer them some food. [ 5 ] Mr. Bunton testified that when Mr. Paul arrived, he seemed angry, and he said to Mr. Bunton that Mr. Bunton was talking badly about Natives. [ 6 ] Mr.

Bunton testified that the other people in the residence went to a back bedroom and he was not able to see them. He said that he saw Mr. Paul with a knife in his hand with a blade of approximately five to six inches in length and a brownish handle. Mr. Bunton decided to leave. As he stood up, he realized that he had been stabbed. He says that Mr. Paul came at him approximately two more times, and he kicked him away and ultimately left the residence and returned to #12, 1406 Broadway. [ 7 ] The police attended at #12, 1406 Broadway. Mr. Bunton was taken by ambulance to hospital. [ 8 ] Mr.

Bunton made an in-court identification of Mr. Paul, and it is of note that Mr. Paul was the only individual in the courtroom at that time other than court staff and the parties. [ 9 ] Mr. Bunton testified that he had met Mr. Paul on two occasions prior to this incident. He described Mr. Paul as wearing a

white-coloured T-shirt and jeans on the day in question. I will note that the pictures that have been admitted in evidence in this matter of Mr. Paul when he was arrested that day show him to be wearing a dark-coloured T-shirt. [ 10 ] Ultimately, the police attended at the hospital, and Mr. Bunton was presented with a photo pack of 12 photos. Neither the photo pack array nor the process were challenged in this trial. The procedure was audio and videotaped. The disc containing that evidence was marked as Exhibit 5. [ 11 ] Mr.

Bunton initially picked out a photo of an individual who was not the accused, and when he did that, he said, "That's him." [ 12 ] As instructed by the police officer, Mr. Bunton continued to look at the other photos. He then picked out a picture of the accused, saying "That's him. That's him for sure." When asked why he picked that photograph by the police officer, he said, "His mouth, hair." Mr. Bunton also asked the police officer if the two people in the photographs were brothers. [ 13 ] The Crown in this trial elected not to present the photo pack or the pictures to Mr.

Bunton that he had picked out previously during the photo line-up. [ 14 ] There was no explanation given by Mr. Bunton on the stand as to why he picked out a different person than the accused initially. [ 15 ] Also, somewhat troubling during the photo pack presentation, Mr. Bunton does not seem to know the accused, though he testified today that he had met him on previous occasions. [ 16 ] Constable Courtoreille testified that he attended at #22, 1406 Broadway Avenue North looking for an accused who was described to him as being 5'6" in height, a round build, large stomach, wearing a T-shirt and pants.

When he arrived at that residence, he observed two males - Bernie Baptiste and Glen Johnny. Also, there was two females present. He also observed a bucket and a mop with red-coloured water in the bucket. He found Mr. Paul and another female in a bedroom on the west side of the house. He asked Mr. Paul what happened. Mr. Paul said to him that he was involved in a fight but that he was fine. He noted Mr.

Paul to have a cut and blood on his right hand, as well as a substance that appeared to be blood on his back. [ 17 ] There were at least three knives located and seized by the police from this residence, including a folding knife that had a brown handle which was found between the mattress on the bed where Mr. Paul was. [ 18 ] None of the other people that were in the residence were called as witnesses in this trial. [ 19 ] There are no fingerprints linking Mr. Paul to any of the knives.

There was no DNA or other forensic analysis to confirm that there was in fact blood on any of the knives or in the bucket or if the blood on Mr. Paul was that of Mr. Bunton. [ 20 ] This is a one-witness case with regard to the issue of identification. [ 21 ] The Crown argues that given the fact that Mr. Bunton knew Mr. Paul, coupled with his in-dock identification, and finally Mr. Bunton's comments about the hair and mouth during the presentation of the photo pack, are sufficient for this court to find that Mr. Paul was the person that stabbed Mr. Bunton. [ 22 ] Clearly, on the evidence, Mr.

Bunton was stabbed, and as I said, the issue here is identification. The case law is voluminous on the subject of the frailties of eyewitness identification. In this case, the identification evidence, in my view, is unreliable, first, because Mr. Bunton identified a person other than the accused initially from the photo pack, and secondly, he gave no explanation to this court as to why he did that. [ 23 ] Also, taking into account all of the evidence, that is, including the statements made by Mr. Paul to Constable Courtoreille, Mr.

Paul’s injury, and what appeared to be blood on his person, and the identification evidence, I cannot say that Mr. Paul's guilt is the only inference I can make on the evidence before me. [ 24 ] As such, I have a reasonable doubt, and I find Mr. Paul not guilty. “R. S. Tindale, J.”