R. v. Doyle, 2013 BCSC 1887

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Doyle, 2013 BCSC 1887 Date: 20131018 Docket: 31573-3 Registry: Fort St. John Regina v. Trevor Michael Doyle Before: The Honourable Madam Justice Fitzpatrick Reasons for Judgment Counsel for the Crown: C. Sadlemyer, Q.C. M. Cissell Counsel for the Accused: E. Keith Jones S. Thompson Place and Date of Trial: Fort St. John, B.C. December 17 - 21, 2012 and August 12-14, 2013 Place and Date of Judgment: Fort St. John, B.C. October 18, 2013 Introduction [ 1 ] Serious charges are brought against the accused, Trevor Michael Doyle.

These charges relate to incidents in Fort St. John in late June and early July 2012 involving Mr. Doyle’s former girlfriend, the complainant, Kristy Marie Thomson. [ 2 ] In essence, it is alleged that Mr. Doyle assaulted Ms. Thomson on two separate occasions in late June 2012 and that these assaults involved a firearm, namely a sawed off shotgun. There are also allegations that on July 2, Mr. Doyle made threats to Ms. Thomson with that shotgun and forcibly confined her until she escaped via a balcony off their 3 rd floor apartment. [ 3 ] Accordingly, Mr.

Doyle stands charged with assault causing bodily harm, uttering threats, unlawful confinement and various weapons offences relating to the shotgun. [ 4 ] In

summary, Mr. Doyle’s defence is that other persons assaulted Ms. Thomson, that she is lying about the threats and forcible confinement and that he has no idea why she jumped off the balcony of their apartment, though she told him that it was because she thought she heard someone in the hallway and jumped to get out of the apartment. He denies owning or using the shotgun in question, contending that he found the gun in the apartment and secured it after Ms. Thomson was assaulted. Background Facts [ 5 ] Ms. Thomson, now 21 years of age, has had a troubled youth.

She was removed from her mother’s care by the government Ministry in the fall of 2005, when she was 13 years old, as a result of neglect. She was returned to the care of her father in July 2006 but was apprehended shortly thereafter. Cora Fraleigh, a social worker with the Ministry, became Ms. Thomson’s guardian in February 2008 and she continued in that role until Ms. Thomson turned 19 years of age in December 2011. Ms. Fraleigh was aware of certain “challenging” behaviors of Ms. Thomson which included abuse of alcohol and drugs from an early age. [ 6 ] On a bright spot, Ms.

Thomson did graduate from high school with very good marks in June 2011. Ms. Thomson attended a treatment program in the spring of 2011 and after that time, she was fairly successful in staying away from alcohol and drugs although with some relapses. After she turned 19, Ms. Thomson continued to stay in touch with Ms. Fraleigh on almost a weekly basis. [ 7 ] Mr. Doyle, who is 24 years old, also had a troubled youth. He has a learning disability and although on paper he is said to have finished Grade 8, he can barely read and write.

His parents are divorced and he was exposed to domestic violence as a young child. [ 8 ] Mr. Doyle’s brushes with the law began in Ontario when he was 11 or 12 after he hit his father. When he returned to British Columbia at the age of 13, he was quickly kicked out of his mother’s home and began living on the streets, selling and using drugs. By the time he was 18 or 19, he was still dealing and using drugs and also stealing cars.

He has a string of convictions commencing in 2007 for robbery, criminal harassment, assault, assault causing bodily harm, possession of stolen property, possession of break-in instruments, mischief, breach of probation and the like, some of which resulted in jail time. While there appears to have been a hiatus of sorts after various convictions in 2009 and leading up to the current incidents, Mr. Doyle chalks this up to two things: firstly, his being more “street smart” in continuing his criminal activity without detection and secondly, his incarceration in the United States for 18 months to 2 years

for running the border. He was also affiliated with gangs during the period of time between 2009 and 2012. [ 9 ] The events leading to the incidents in question begin at the start of 2012. [ 10 ] Josh Hill is a drug dealer. In the fall of 2011, Mr. Hill moved from the Lower Mainland to Fort St. John, apparently thinking that there were greener pastures for his business there. He continued to be supplied with drugs from the Lower Mainland by a Surrey car dealer known as “Clay”. Once in Fort St. John, he began living with a person called “Omar”. [ 11 ] In early 2012, Mr.

Doyle was living in Surrey and continuing his drug dealing activities and also consuming drugs, principally methamphetamine. At some point, a friend wanted him to “clean up” and move to Fort St. John to assist with a drug business there being conducted by a gang. While in Fort St. John, Mr. Doyle ran into Mr. Hill who he knew from his early teen years in the Lower Mainland. Initially, Mr. Doyle and Mr. Hill worked for different “people” although it is apparent that at some point, they began to work together in the drug dealing business being run by Mr. Hill. [ 12 ] In January 2012, Mr.

Hill’s girlfriend, Amanda Lippmann moved from the Lower Mainland to join him and Omar in Fort St. John. Ms. Lippmann assisted Mr. Hill in his drug dealing business in Fort St. John. They also used drugs from time to time. [ 13 ] Ms. Thomson and Mr. Hill met and became friends in Fort St. John through a mutual acquaintance, Sherry. Ms. Thomson knew that Mr. Hill was dealing drugs and from time to time, she assisted in his business. Shortly after her move north, Ms. Lippmann met Ms. Thomson and they became friends. [ 14 ] After a stay at another apartment, Ms. Lippmann arranged for her and Mr.

Hill to rent a two bedroom apartment at #304 8920 100 th Avenue in Fort St. John in a building known as the “Centurion” (the “Apartment”). Ms. Lippmann signed a lease on April 9, 2012 for a one year tenancy from May 2012 to April 2013. A move in inspection was done on April 9 by the property managers. The initial occupants of the Apartment were Ms. Lippmann, Mr. Hill and Omar. Omar was on probation and was subject to curfew checks by the police from time to time at the Apartment. [ 15 ] Given the inherently dangerous nature of Mr.

Hill’s enterprise, the couple had various animals in the Apartment for protection, including 3 pit bulls which were caged from time to time in kennels in the spare bedroom, and a snake. [ 16 ] In April 2012, Ms. Thomson was living with Sherry in an apartment in Fort St. John. On one occasion when Mr. Hill was over, he introduced Ms. Thomson to his friend, Mr. Doyle. Ms. Thomson and Mr. Doyle almost immediately began an intimate relationship. At that time, Ms. Thomson had been gainfully employed for about 5 months at a local hotel and had not been using drugs for some months. [ 17 ] The effect of Ms.

Thomson’s new relationship with Mr. Doyle was fairly immediate. Shortly thereafter, she began again using drugs with Mr. Doyle, including cocaine and oxycontin. Sherry asked Ms. Thomson to move out of her apartment because she didn’t approve of Mr. Doyle. In addition, Ms. Thomson was fired from her hotel job because her boss said that Mr. Doyle, who was hanging around, was a drug dealer and he didn’t consider her a fit employee if that was the company she wished to keep. [ 18 ] Ms. Thomson and Mr. Doyle moved in together after Ms. Thomson left Sherry’s apartment.

After a short hotel stay, they lived in an apartment for a short while with a friend of Mr. Hill. Not long after, they were kicked out of that apartment and removed all their belongings. They moved to Ms. Thomson’s father’s place. After some two to three weeks there, Ms. Thomson’s father kicked them out because of their erratic lifestyle and no visible employment; in other words, her father concluded that Mr. Doyle was a drug dealer. Both Ms. Thomson and Mr. Doyle were using cocaine daily at this time. In addition, at least by this time, both were also working for Mr.

Hill in his drug dealing business, by selling the drugs. [ 19 ] During the time leading to June 2012, Mr. Doyle and Ms. Thomson would stay at the Apartment from time to time. Ms. Lippmann says at times, Mr. Doyle would hit Ms. Thomson with his hand or kick her. She observed two occasions in which Mr. Doyle and Ms. Thomson argued. They were said to argue “quite a bit”. She related two occasions involving violence. The first occurred in a park when Mr. Doyle was yelling and pushed Ms. Thomson into a bush. He then threw rocks at her. Mr. Doyle acknowledges this fight.

The second incident took place a couple of days later when Ms. Lippmann overheard them arguing and heard Ms. Thomson being hit. Later, Ms. Thomson emerged from the bedroom with a bleeding lip. Ms. Lippmann described the relationship between Ms. Thomson and Mr. Doyle to be tumultuous. She observed Ms. Thomson hitting Mr. Doyle one time after he had hit her. On both occasions, everyone was using drugs, usually cocaine. [ 20 ] Ms. Thomson describes her relationship with Mr. Doyle, consistent with the observations of Ms. Lippmann, as one marked with jealousy and violence.

When he would get angry, he would hit her or throw objects at her. Liquor bottles were thrown. She describes that there were violent interactions about once a week by the beginning of June. She admits that at times, she also threw items at Mr. Doyle and used what was handy as a weapon. [ 21 ] Around early June, Mr. Hill was short of cash to pay Clay, his drug supplier. Mr. Doyle describes that Mr. Hill was using the drugs for his own use and not paying for them from his share. There was differing evidence as to the amount of the shortage, it either being $60,000 or $130,000.

In any event, to solve this dilemma, Mr. Hill announced to Mr. Doyle, Ms. Lippmann, Ms. Thomson and Omar that they were not just drug dealers, they were also drug dealer robbers . [ 22 ] Mr. Hill concocted a scheme to photocopy money and put it between real cash in a superficial attempt to repay the monies owed to satisfy Mr. Hill’s debt. Ms. Lippmann and Ms. Thomson assisted in preparing the fake money packets. The packets were picked up by Clay’s mother and needless to say, the true nature of the packets was later discovered.

Understandably, Clay was not amused. [ 23 ] Given the potential repercussions from Clay, Mr. Hill and Ms. Lippmann quickly decided to, as the saying goes, “get out of Dodge”. They feared for their lives, thinking that Clay’s people would be coming after both of them. Ms. Lippmann said that Clay knew that she, Mr. Hill, Mr. Doyle and Ms. Thomson were all involved and she considered all of them to be at risk.

[ 24 ] Mr. Doyle says that about 4 days after the hand-off of the “funny” money, Mr. Hill received a call from Clay who threatened him. [ 25 ] By about June 17, 2012, Mr. Hill and Ms. Lippmann cleaned the Apartment somewhat and packed whatever they could into their car. They decided to leave the keys to the Apartment with Mr. Doyle and Ms. Thomson who by that time were looking for a place to live after being kicked out by Ms. Thomson’s father. The idea was that Mr. Doyle and Ms.

Thomson would use the Apartment until they were kicked out by the landlord for nonpayment of the rent, which was paid for the month of June 2012. They only took one of the pit bulls, leaving the other two and the snake in the care of Mr. Doyle and Ms. Thomson. This hand-off of the Apartment and the animals made sense because Mr. Hill, being ever enterprising, left Mr. Doyle with some money and a quantity of drugs so that he could continue with the drug dealing business, along with Ms. Thomson. [ 26 ] Mr. Doyle stated in his evidence that Mr.

Hill wanted him to come down south with him but that he refused, stating that he wanted to stay with Ms. Thomson because he “loved” her. I reject this evidence and find as a fact that Mr. Doyle stayed because he wished to continue the drug business. In fact, he stated that he was quite proud of the fact that he had “moved up” in the organization once Mr. Hill left. [ 27 ] Ms. Thomson describes herself as somewhat fearful for Mr. Doyle arising from the drug rip-off, but she did not have similar concerns for herself, since she considered that she was simply a “worker” and did not handle the drugs or money. Mr.

Doyle says that they were both worried about the consequences from the rip-off. [ 28 ] After moving into the Apartment, Mr. Doyle and Ms. Thomson continued with the drug business previously conducted by Mr. Hill. They were also binging on the drugs by using substantial quantities of cocaine. They didn’t bring any furniture or food into the Apartment. Ms. Thomson just brought the clothes on her back and another pair of shorts. Indicative of their lifestyle, and the violence in their relationship, Mr. Doyle and Ms.

Thomson did not take particularly good care of the Apartment, in that there was serious damage, including holes were punched or gouged in the walls and graffiti was written on the walls by both of them. [ 29 ] Around this time, Ms. Fraleigh had a discussion with Ms. Thomson. Ms. Thomson said that she and her boyfriend Trevor had been evicted and that they were homeless. She indicated that someone who had a lease was letting her and her boyfriend move in. Ms. Fraleigh later attempted to contact Ms. Thomson but was not successful. [ 30 ] Ms. Thomson indicates that from the beginning of the relationship, Mr.

Doyle was extremely controlling. He accused her of inappropriate relationships with her friends and he wanted her to stop talking to them. Essentially, Ms. Thomson broke off all communication with her friends shortly after their relationship began. [ 31 ] Ms. Thomson says that after Mr. Hill and Ms. Lippmann left in mid-June, things went downhill. Apparently, Mr. Doyle forgot that he was supposed to be selling Mr. Hill’s drugs, not using them.

The dogs remained locked in the bedroom without food until Sherry came by to pick them and the snake up. [ 32 ] There was considerable paranoia arising from both the continuing drug business and concerns about repercussions from Clay after the departure of Mr. Hill and Ms. Lippmann. When she came to get the animals, Sherry relayed to them that Ms. Lippmann’s parents, who lived in the Lower Mainland, had been visited by Clay’s people looking for his money. They had called the police. Sherry advised Mr. Doyle and Ms.

Thomson that either the police or Clay’s people could be coming around and that that they should get out of the Apartment and leave Fort St. John. [ 33 ] Mr. Doyle says that he regularly pushed the dirt bike and an extra fridge against the entry door of the Apartment to block anyone from coming in. Despite these concerns, Ms. Thomson was not aware of any threats against either her or Mr. Doyle. However, both Mr. Doyle and Ms.

Thomson related an incident in late June where they thought someone was trying to get into the Apartment, although they did not see anyone. [ 34 ] In late June, 2012, the fighting between Mr. Doyle and Ms. Thomson also escalated. There was an incident when Mr. Doyle accused Ms. Thomson of sleeping with a friend of hers. Mr. Doyle, while calling her a whore, liar and thief, hit her in the face and eyes with his fist. Mr. Doyle admits to pushing Ms. Thomson. He also says Ms.

Thomson swung at him, clipping him on the side of his eye and that she hit him from behind a couple of times. [ 35 ] In addition, by mid to late June, and after the departure of Mr. Hill, Mr. Doyle was able to arrange to use a van for the purpose of continuing the drug business. [ 36 ] At this point, the evidence of Ms. Thomson and Mr. Doyle is in substantial conflict as to what happened leading up to and including the events in question. Ms. Thomson’s Evidence [ 37 ] In mid to late June 2012, Ms. Thomson says that Mr.

Doyle came into possession of a sawed off shotgun from a crack addict who had given the gun to Mr. Doyle in exchange for drugs. Ms. Thomson witnessed Mr. Doyle breaking the wooden handle of the gun by smashing it on the ground and also his subsequent taping of the handle. Ms. Thomson said that when Mr. Doyle had the shotgun in the Apartment, he either placed it in a cupboard or in the dishwasher. When he took it outside the Apartment, she described that he carried it in a black duffle bag with a “lion” on it. [ 38 ] Ms.

Thomson gave evidence about an incident around June 27 or 28 which took place in the living room of the Apartment. Ms. Thomson says that Mr. Doyle punched her with his fists and battered her with the shotgun despite her efforts to shield herself and avoid the blows by attempting to protect herself with her raised arms. As a result of her arms being struck by the shotgun, her arms were black and blue and she believed that it was at this time that her arms were broken. Ms. Thomson recalls injuries to her face and arms; her eyes were swollen such that she could barely see.

[ 39 ] Ms. Thomson relates a second incident during the evening of June 30 when Mr. Doyle and Ms. Thomson were in the van. The van rolled into a ditch and Mr. Doyle blamed her. Mr. Doyle threatened to kill them both. Ms. Thomson does not recall many details but does recall Mr. Doyle striking her with the barrel of the shotgun in the face and stomach. [ 40 ] Sometime on June 30 or early July 1, Mr. Doyle made efforts to remove a stain of Ms. Thomson’s blood from the carpet of the Apartment living room with bleach. [ 41 ] On the morning of July 1, Mr. Doyle drove Ms. Thomson to the Fort St.

John hospital and dropped her off around 11:15 am. Her forehead was bleeding. Ms. Thomson was originally seen by Bettina Panio, a triage nurse who was tasked with doing an initial assessment. [ 42 ] At that time, Nurse Panio observed that Ms. Thomson had many injuries: severe bruising on her face and arms, a deep laceration on her left brow in a horseshoe shape with dried blood, a laceration to the top of her head, dried blood on top of and on the back of her head, small abrasions and marks on her arms and legs, her right eye was black and swollen and was bleeding inside the eye. Ms.

Thomson was nauseous and complaining of severe headaches and blurred vision. She was pale. She was also “splinting” her arms, which means that she was cradling her arms and holding them close to her torso. [ 43 ] The attending physician, Dr. Charl Badenhorst, saw her at 1:00 pm. Both Dr. Badenhorst and Nurse Panio smelled alcohol. Ms. Thomson denied any drug use at the time. [ 44 ] By way of explanation of her injuries, Ms. Thomson contended that she had been in a “quad” or ATV accident the night before. She said that she had been driving at night and not wearing a helmet.

She said her friends wanted her to come to the hospital. This explanation was rejected by Nurse Panio who has some experience in providing medical care for people who have been involved in quad/ATV accidents. In her experience, Ms. Thomson’s injuries were not consistent with the usual quad/ATV injuries where typically the injuries (usually bruising, cuts, broken collarbone or ankle) occur on one side. In Ms. Thomson’s case, she had injuries all over her body. [ 45 ] Dr. Badenhorst reached the same conclusion, namely that Ms. Thomson’s explanation for her injuries was not typical for an ATV/quad accident.

He began to suspect something else and that Ms. Thomson was not telling the truth about the cause of her injuries. [ 46 ] Ms. Thomson admits that she didn’t tell the truth to the medical practitioners. She said she didn’t want anyone, including Mr. Doyle, to get into trouble. At trial, she indicated that her injuries identified at this time relating to the laceration on her eyebrow and her broken arms arose from the two earlier incidents when Mr. Doyle struck her with the shotgun. [ 47 ] When Nurse Panio later observed her at 1:20 pm, Dr. Badenhorst had ordered x-rays and lab work. Also by this time, Mr.

Doyle had arrived at the hospital. In Nurse Panio’s opinion, Mr. Doyle was overly solicitous to Ms. Thomson, including petting and stroking her arms and in her words, “hovering”. This was unlike most patients who, with severe injuries, usually shy away from physical contact even with loved ones. Nurse Panio observed that unlike Ms. Thomson’s tearful condition when she arrived, she was quiet when Mr. Doyle appeared and for the most part, lay still with her eyes closed. There was little interaction between them save that when Nurse Panio asked Ms. Thomson a question, she would look over to Mr.

Doyle as if to confirm what the answer should be. Mr. Doyle left the hospital later that night after he refused to leave and the hospital staff threatened to call the police. [ 48 ] The later analysis of Ms. Thomson’s urine revealed the presence of cocaine. Despite this evidence, Nurse Panio observed that Ms. Thomson was unlike most people she has seen under the effects of cocaine - fidgety, unreasonable and angry. Ms. Thomson was tearful, crying and when dealing with hospital staff, was pleasant and respectful. In contrast, Mr. Doyle was observed by Nurse Panio as fidgety and unable to relax, always moving. Dr.

Badenhorst described her as “agitated” which is consistent with cocaine use but also consistent with other factors. [ 49 ] By the time Nurse Panio left her shift that evening at 8 p.m. on July 1, Ms. Thomson had been given pain medication and antibiotics. The gashes to her face and head had been sutured. In addition, x-rays confirmed that Ms. Thomson’s left ulna bone in her forearm had been fractured and was displaced by about 3 mm. Her right ulna bone had been fractured but there was no displacement. As a result, Ms.

Thomson was fitted with back slabs for both her arms, which are a temporary casting system until a permanent cast is put on some weeks later. She was discharged from the hospital at 6:50 a.m. on July 2. Mr. Doyle picked her up. Ms. Thomson removed her back slabs shortly thereafter because she couldn’t move her arms despite ongoing pain in her arms. [ 50 ] After being picked up by Mr. Doyle, their tempestuous relationship continued. Ms. Thomson says they fought in the van about some drugs that had gone missing. Ms. Thomson jumped out at one point. Mr.

Doyle convinced her to get back into the van and they proceeded to the Apartment. While still outside, they fought again. Ms. Thomson said she was leaving and to leave her alone. Mr. Doyle asked her to come up to the Apartment which she did. [ 51 ] Once in the Apartment, Ms. Thomson says Mr. Doyle pushed the dirt bike against the door and while standing by and blocking the door, said words to the effect of “look who has who now”. Ms. Thomson felt threatened by this since she knew that he had the loaded shotgun in the Apartment. Ms. Thomson said it was loaded because Mr.

Doyle told her it was loaded and she knew that it was always loaded because Mr. Doyle considered that there were threats to kill them. [ 52 ] Ms. Thomson’s evidence was somewhat conflicting about the sequence of events after she says she was threatened by Mr. Doyle. She relayed both a physical fight during which she wielded a screwdriver and Mr. Doyle threatening her with the shotgun.

Not much turns on this since she was clear in her evidence about the details of both events. [ 53 ] In direct, she said that he threatened to kill her when he picked up the shotgun from the kitchen table and pointed it at her chest, some 4-5 feet away. She said that he should kill her, thinking that she was tired of the fighting and didn’t want to live that way anymore. Mr. Doyle then put the gun in his mouth. Ms. Thomson grabbed the shotgun and they began rolling on the floor. Mr. Doyle was on top of her and trying to choke her. Ms. Thomson tried to stab him with a screwdriver that was nearby.

At one point, the physical fight stopped and Ms. Thomson was able to get away. She ran to the patio balcony, threw her purse (now broken by Mr. Doyle grabbing it)

over the rail and then jumped. Mr. Doyle was looking at her directly when she jumped. When she jumped off the balcony, she considered that Mr. Doyle was going to kill her. [ 54 ] In cross-examination, Ms. Thomson said that the fight with the screwdriver occurred first and Mr. Doyle later picked up the shotgun and threatened to kill her as a result of which she jumped off the balcony. [ 55 ] Mr. Doyle ran down the stairs and went to Ms. Thomson. He begged her not to leave, saying that he was sorry. He said he was scared which Ms. Thomson assumed related to her jumping off the balcony.

They sat on the ground and talked for about an hour. After that Ms. Thomson left the side of the Apartment building and went across to the convenience store kitty corner to the building. Mr. Doyle followed her. [ 56 ] By this time, Ms. Fraleigh had lodged a missing person report regarding Ms. Thomson. As a result, it came to the attention of the Fort St. John RCMP. Ms. Fraleigh reported that she had become aware there were problems with Ms. Thomson’s relationship with Mr. Doyle and that she may have been beaten up by him. She also thought it was possible that Ms.

Thomson had suffered an ATV accident. [ 57 ] Eventually, the RCMP got word that Ms. Thomson was at a convenience store located kitty corner from the apartment building in question. Constable Gohn attended in his police car and identified both Ms. Thomson and Mr. Doyle who were together. Neither of them attempted to avoid the police and the police didn’t observe any “attitude” by either in relation to the other. Constable Gohn asked to speak to Ms. Thomson in private and out of earshot of Mr. Doyle. She was asked if there had been any violence which she denied.

However, the Constable observed that she had bruises on her arms and face and sutures from lacerations to her face. Her hair was positioned to cover a lot of her face. Ms. Thomson confirmed that these sutures were from the night before. She was said to seem embarrassed. Ms. Thomson says she advised the police that her injuries arose from a quad/ATV accident. The police left the scene. Sherry and her two children also came by and then left. [ 58 ] Around 2 p.m. on July 2, Ms. Fraleigh got a phone call from Ms. Thomson. She asked Ms. Fraleigh to pick her up at a restaurant beside the convenience store. When Ms.

Fraleigh arrived, Ms. Thomson was moving in an off balanced way and she limped toward the car with difficulty. She had difficulty getting into the car. Ms. Fraleigh observed many things about Ms. Thomson: she was holding a broken purse awkwardly since it had a broken handle; her movements were disjointed and stiff; she had dishevelled hair with blood matted in it; she had a gash above her left eye with dried blood on the wound; she had swollen cheeks, lips and eyes; and she had a small scratch or red mark on her cheek. Ms. Fraleigh could hardly recognize her. [ 59 ] Later that day on July 2, Ms.

Thomson arrived again at the Fort St. John Hospital emergency with Ms. Fraleigh and she was seen by a triage nurse. Ms. Thomson at that time told the nurse that she had “tripped over a laundry basket” as an explanation of her current injuries. [ 60 ] Nurse Panio was also on duty that day and saw Ms. Thomson. One of the first things that Nurse Panio noticed was that Ms. Thomson’s back slabs were not on her arms. Nurse Panio began to reprimand her for taking the temporary casts off. She questioned Ms. Thomson on the veracity of the “trip over the laundry basket” story in light of the previous quad/ATV explanation.

Ms. Thomson was crying. At this time, Ms. Thomson said that she had not been in any ATV/quad accident. She said that she had been beaten up by her boyfriend who had been drinking and doing cocaine. She said that after she had returned from her first visit to the hospital, Mr. Doyle had removed the back slabs and beaten her up again. She said she got away by jumping off a 3 storey building. [ 61 ] Dr. Badenhorst also said that when he questioned her in light of the current explanation and the previous events on July 1, Ms. Thomson confirmed that she had been beaten up by her boyfriend.

In fact, the last time she had even been on a quad was in the summer of 2011. Her lies to the medical practitioners and to the police about the reason for her injuries were again said to be for the purpose of not getting anyone in trouble. [ 62 ] Nurse Panio made a number of observations concerning Ms. Thomson’s condition on this second visit. She wasn’t sure if Ms. Thomson had showered since there was less dried blood on her body and in her hair, which was consistent with Ms.

Thomson’s evidence that at some point, she had used a garden hose to wash out some of the blood from her hair between the first and second hospital visits. Nurse Panio also observed that there was another small cut on the right side of her cheek, her left eye was more swollen, and her legs had some soft tissue swelling. New x-rays confirmed changes to the broken bones identified in her forearms from the July 1 visit. Her right broken arm which only had a hairline fracture before, was now displaced by about 2 mm and there were fragments chipped off the bone. The left ulna remained broken and displaced as before.

Again, in Nurse Panio’s view, these injuries were not consistent with a quad/ATV accident. [ 63 ] Nurse Panio described Ms. Thomson as scared and fearful. [ 64 ] Nurse Panio and another nurse on her shift were also faced with calls to the hospital by Mr. Doyle. In two earlier calls, he was asking for information on the condition of Ms. Thomson which the staff refused to give him. Nurse Panio took the third call and spoke to Mr. Doyle. He said that he knew she was there and wanted to talk to her.

Nurse Panio took his name and cell phone number. [ 65 ] Later that evening on July 2, the RCMP got a priority call from the hospital advising that Mr. Doyle was at the hospital and that he may be in possession of a firearm and a black Puma bag. The police responded with a Code 3 and upon arriving at the hospital located Mr. Doyle. He was not in possession of the black bag. Mr. Doyle was detained in handcuffs in the police cruiser. Ms. Thomson was later interviewed by the RCMP that evening and Constable Julyan observed her physical injuries. He indicated that she was in considerable pain, and was crying and upset.

Ms. Thomson alluded to an altercation with Mr. Doyle as the reason for her injuries. [ 66 ] Ms. Thomson was discharged from the hospital that night at 9:45 p.m.; eventually, she found a place to stay at a women’s shelter. [ 67 ] On July 3, Ms. Fraleigh and Ms. Thomson attended at the RCMP detachment at the request of the RCMP that she give a statement. Ms. Thomson stayed in the vehicle and refused to come into the detachment. Constable Crystal Smith noted her extensive

injuries and she testified that Ms. Thomson was terrified of coming in because she said that she was afraid of repercussions and in particular, she believed that Mr. Doyle or Mr. Doyle’s associates at his direction would come after her and kill her. She refused to provide a statement at that time. She would later provide a statement. [ 68 ] On July 4, a number of officers of the Fort St. John RCMP attended at the Apartment to execute a search warrant. They noted a number of unusual features at the Apartment.

There was nominal furniture although a dirty couch or futon and an old car seat were located in the living room. There was a coffee table on which was found a white substance, which the police believed to be cocaine residue. There were two fridges, one of which belonged to the unit. Both were empty. The patio sliding doors had been covered with an old blanket. The kitchen was fairly barren on the counter and in the cupboards but a table was located in it. A dirt bike was located in the middle of the kitchen.

One of the bedrooms had empty dog cages and there were dog feces and urine on the carpet of both bedrooms. [ 69 ] In the garbage, the police found a male sleeveless t-shirt with blood stains on it. A number of pillows were found in the living room and in a cupboard in the kitchen with red staining on them. A screwdriver was found in the living room on the coffee table. [ 70 ] Numerous other red stains were found in various areas of the Apartment, including the kitchen and bathroom counters, the walls, door jams and the carpet. Constable Huff gave his opinion that this was dried blood.

Although the stains were swabbed at the scene, no analysis was done. [ 71 ] Marks were found on the front door in a line - consistent with the level of the right foot peg on the dirt bike which was parked nearby. [ 72 ] From the 3 rd floor balcony, the police observed a strip of moulding at the bottom which had come loose. Constable Christian noted that it was approximately 7 meters from the railing of the 3 rd floor balcony to the ground and approximately 6 meters from the floor of the balcony to the ground. [ 73 ] On the kitchen counter, the police observed a bottle of cleaning fluid.

Evidence of attempts to clean the carpet and white residue from that were also noted, consistent with Ms. Thomson’s earlier evidence about Mr. Doyle attempting to remove her blood from the carpet. [ 74 ] The police observed substantial graffiti on the walls, consistent with markings acknowledged to have been made by both Mr. Doyle and Ms. Thomson. [ 75 ] Perhaps the most unusual discovery for the RCMP, but not Ms. Thomson, was in the dishwasher - where the police recovered a sawed off shotgun on the bottom rack, along with a basket containing 5 shotgun shells.

The shotgun had been altered by cutting off a portion of the barrel and the stock. In addition, plastic tape was wrapped around the pistol grip and the trigger guard had been broken off. Ms. Thomson identified the shotgun found in the Apartment as the one in the possession of Mr. Doyle as altered by him. The location of the shotgun was consistent with Ms. Thomson’s evidence about where Mr. Doyle usually located the shotgun in the Apartment. The police also found a black Puma bag during the search and Ms. Thomson identified this as the “lion” logo bag belonging to Mr.

Doyle in which he was said to carry the shotgun. [ 76 ] Ms. Lippmann indicated that the Apartment was clean of garbage and swept before they left for the Lower Mainland.

Photographs of the Apartment taken by the police indicate that there were substantial changes to the Apartment from the state in which she left it in mid-June: the writing on the walls, the garbage, the chairs from the dining room put up against the patio doors, the blanket over the patio doors, the carpet over the chairs in front of the patio doors, clothing in the laundry, clothing scattered around, the dirt bike had been moved from in front of the laundry room to the kitchen, the marks on the inside of the outer door, the holes in the walls, the red stains on the walls.

Also various items had been moved from where she had left them. She also had used all the appliances before, including the dishwasher. [ 77 ] I find as a fact that the later changes to the Apartment identified by Ms. Lippmann were done by Mr. Doyle and Ms. Thomson after the departure of Mr. Hill and Ms. Lippmann. [ 78 ] Ms. Lippmann indicated that she did not have any wicker basket such as the one found in the dishwasher containing the shotgun shells.

The Forensic Evidence [ 79 ] The RCMP requested DNA analysis on the shotgun. [ 80 ] Christine Crossman, a forensic biologist employed at the RCMP National Forensic Laboratory, gave expert evidence on the samples taken. Five areas of the shotgun were examined and swabbed for blood and other biological material, i.e. skin cells. The areas included the underside of the barrel near the muzzle, the right side of the receiver, the fore stock, the trigger/trigger guard/safety and the butt stock. Blood was identified and confirmed in the first two areas only. With only one sample in hand (that of Ms. Thomson), Ms.

Thomson’s DNA was identified to a very high degree of probability on the underside of the barrel near the muzzle and the right side of the receiver, with trace male DNA being found on the receiver. Ms. Thomson was also identified to a much lesser degree of probability as a “possible contributor” in respect of the trigger/trigger guard/safety and the butt stock. She was also identified with a lesser degree of probability in respect of the sample from the fore stock. DNA from the same unknown male was identified on the trigger/trigger guard/safety, the butt stock and also the fore stock.

Trace of another person’s DNA was also found on the fore stock. [ 81 ] DNA samples were taken from Mr. Doyle by the RCMP on October 16, 2012. With that sample in hand, the RCMP retested the earlier swabs obtained from the shotgun. Again, Ms. Thomson’s DNA was the only one identified on the underside of the barrel near the muzzle. In addition, assuming that Ms. Thomson was one of the source persons, Mr. Doyle’s DNA was identified to a very high degree of probability on the trigger/trigger guard/safety, and the fore and butt stock. [ 82 ] The RCMP undertook comparison of the wounds of Ms.

Thomson to the muzzle of the shotgun through their Forensic

Identification Section. Two officers were involved, Constable Christian, who is an apprentice in the program and Sergeant Pratch, who is a veteran officer.

Sargeant Pratch was qualified as an expert in the field of the collection, analysis and comparison of physical evidence. [ 83 ] Both officers undertook a technique or scientific method that is described as ACEV - which stands for analysis of unknown impressions, comparison of the unknown impressions to the known control standard sample, evaluation as to the sufficiency of detail present to support a hypothesis that the unknown was or was not made by the known control standard and verification , when another qualified examiner verifies the process used and repeats the observations made and validates the conclusions reached by the first officer.

In other words, the RCMP will not express an opinion unless there are at least two officers who come to the same conclusion based on the same procedures. [ 84 ] Both Constable Christian and Sergeant Pratch compared Ms. Thomson’s injuries over her left eye and on top of her head (both where there was a semicircular or horseshoe shaped wound) to the muzzle (or end of the barrel) of the shotgun.

Both concluded that these injuries had similar characteristics of the size and shape found in relation to the muzzle end of the barrel of the shotgun; however, they also concluded that this does not preclude other items having the same similar size and class characteristics. [ 85 ] Mr. Doyle does not challenge the qualifications of the experts giving this evidence, nor the conclusions or opinions reached. Mr. Doyle’s Evidence [ 86 ] Mr. Doyle denies that he beat up or assaulted Ms. Thomson with the shotgun. His evidence is that Ms.

Thomson was beaten up by other people, the theory being Clay’s enforcers or thugs, on June 29 or June 30. [ 87 ] He says that sometime just before this incident he had dropped Ms. Thomson back at the Apartment so that he could go to her father’s house to retrieve some drugs. After he retrieved the drugs, he says he drove to the convenience store for some cigarettes at which time Ms. Thomson phoned him. Ms. Thomson was said to have told him that three masked men, armed with a shotgun, came to the Apartment and beat her up while demanding the drug money that was not paid.

She said they were able to enter the Apartment because she had left the door open for him. She asked him to come right away but he refused since he might get beaten up himself. Mr. Doyle told Ms. Thomson that she was on her own. [ 88 ] Also, Ms. Thomson is said by Mr. Doyle to have called him back a second time to advise that the assailants had left and to come and get her. [ 89 ] Mr. Doyle says that when he returned to the Apartment, he circled around the complex to make sure that the thugs weren’t hanging around in their vehicles. He parked one block over. When he entered the Apartment, he noticed that Ms.

Thomson had a gash on her right (not left) eyebrow and she was bleeding. Yet, despite all this, Mr. Doyle then says that Ms. Thomson attacked him with a screwdriver when he entered the Apartment. Mr. Doyle says that Ms. Thomson was mad at him for abandoning her. He says that he pushed her down and smashed her head on the ground until she dropped the screwdriver. He says that he was injured slightly and bleeding. It was at this point that he says that he saw the shotgun in the kitchen of the Apartment. [ 90 ] Mr.

Doyle’s explanation for why his DNA was found on the shotgun is that when he noticed the firearm, he took off his bloody T-shirt and used it to cover his hands while he picked up the shotgun and emptied the chamber of the shells. He recalled that there were 5-6 shells, which is consistent with the 5 shells found by the police. He then says that he put the shells in a basket and then placed both the shotgun and the basket in the dishwasher. His explanation for doing this is that the police had been conducting curfew checks on Omar so he wanted it out of sight. Mr.

Doyle says that he didn’t want anything to do with the shotgun. He says that the Puma bag was Mr. Hill’s. [ 91 ] Mr. Doyle says that they then drove to a lake to “chill”. He then says that while they were driving back he noticed that Ms. Thomson had blood in her hair so he pulled over to wash her hair. This is contrary to the evidence of Nurse Panio who noticed caked blood in her hair on July 1 during the first hospital visit and less on the second visit on July 2. [ 92 ] Mr. Doyle says that it was his idea that Ms.

Thomson advise the doctors and nurses that it was a quad/ATV accident so that the police wouldn’t look for the people who had beat her up. He felt to do otherwise would cause problems for both of them. [ 93 ] As part of his narrative, Mr. Doyle also relayed a strange incident with Mr. Hill on July 1 when Mr. Hill phoned him looking for his cut of the profits of the drugs sold by Mr. Doyle after his departure from Fort St. John. Mr. Doyle told him what had happened (i.e. the assault of Ms. Thomson) and he also told Mr. Hill that he didn’t intend to pay him. Later they arranged to meet at a locker where Mr.

Hill had stored some things. By that time, Mr. Doyle had taken certain items from Mr. Hill’s locker such as a rifle and had sold it, apparently to rip-off Mr. Hill for “abandoning” him in Fort St. John. Mr. Hill accused him of taking the gun. Despite this disagreement, Mr. Hill apparently wanted Mr. Doyle to pack the van with both their belongings and go south with him after picking up Ms. Thomson. Mr. Doyle overheard Mr. Hill say that once there, he would “do him in”. Despite all this, Mr. Doyle says he complied and went to the hospital. He advised Ms. Thomson that Mr. Hill was going to hurt them.

He didn’t budge once he got there, telling Mr. Hill that Ms. Thomson could not leave given her medical condition. Mr. Doyle said he then gave Mr. Hill a hug and said he was sorry. [ 94 ] Mr. Doyle says he spent the night of July 1 at a friend’s house. He got a call from Ms. Thomson in the morning of July 2 to come pick her up. They drove to McDonald’s for breakfast and then emptied the van of some of Mr. Hill’s possessions into a dumpster. [ 95 ] Later that day around noon, Mr. Doyle says that Ms. Thomson wanted to return to the Apartment to retrieve some things. He wanted to retrieve a keg of beer.

They returned and circled the block looking for cars they knew. When they entered the Apartment, despite what was to be a quick trip to pick up some items, Mr. Doyle placed the dirt bike and extra fridge against the door. [ 96 ] Mr. Doyle’s evidence about Ms. Thomson’s later injuries that day, including those from jumping off the balcony, is that he had nothing to do with them. Mr. Doyle says that he went into the bathroom to urinate. He says he heard Ms. Thomson flick a lighter which he assumed meant that she was smoking crack. When he came out of the bathroom, she was gone.

After checking the living room and bedrooms, he noticed the open sliding glass door, looked outside, and saw her on the ground. He then moved the bike and the fridge

aside and ran down to see her, asking what had happened. She is said to have told him that she thought she heard someone in the hallway and had jumped to get out of the Apartment. [ 97 ] Mr. Doyle acknowledges that they sat and talked for some time outside the Apartment. He says that Ms. Thomson wanted to go to the hospital but when they went to retrieve the van, it was gone. He also acknowledges that Ms. Thomson called her ex-social worker (Ms. Fraleigh) and that while she was waiting, the police and Sherry came by. [ 98 ] Mr. Doyle flatly denies Ms.

Thomson’s contention that he first assaulted her with the shotgun at the Apartment on June 27 or 28, that he then assaulted her with the shotgun in the van on June 30, and that he threatened her with the shotgun and confined her against her will at the Apartment on July 2. He says that at no time would he have put a shotgun in his mouth since going out that way was a coward’s way and was not something he would do over a “chick”. Discussion (

i) Assaults, Threats, Unlawful Confinement and Related Weapons Charges [ 99 ] Mr. Doyle is charged with six counts under the Criminal Code of Canada , R.S.C. 1985, c. C-46, all of which relate to Ms. Thomson and are alleged to have occurred between June 27 and July 2, 2012 in Fort St. John:

a) Count 1 - Assault Causing Bodily Harm: s. 267(b);

b) Count 2 - Unlawful confinement: s. 279(2);

c) Count 3 - Utter threat to cause death or bodily harm: s. 264.1(1);

d) Count 4 - Point a firearm without lawful excuse: s. 87(1);

e) Count 5 - Possess or carry a weapon dangerous to public peace or for the purpose of committing an offence: s. 88(1); and

f) Count 8 - Use a firearm while committing an indictable offence of assault causing bodily harm: s. 85(1). [ 100 ] Mr. Doyle’s position is that the Crown has failed to prove these charges beyond a reasonable doubt. Mr. Doyle contends that the physical evidence is equally consistent with his version of events and indeed, the Crown concedes that his evidence is not inconsistent with that physical evidence. Mr. Doyle contends that Ms. Thomson’s evidence should be rejected and his accepted as to the events that transpired during the relevant time period. [ 101 ] I must therefore in large

part consider the credibility and reliability of each of Mr. Doyle and Ms. Thomson. I will note at the outset that an overarching issue was the reliability of the evidence of both given the level of drug use that was going on. Mr. Doyle, however, was clear in stating that even his level of drug use did not prevent him from remembering details of what transpired during the relevant time, and as is apparent, he related substantial details in his evidence. Ms. Thomson also gave no indication in her testimony that her drug use affected her memory of the events. [ 102 ] Mr.

Doyle’s evidence was given in a direct manner. I acknowledge that he was very forthcoming about his criminal record, although that could equally be seen as a good defensive measure to blunt any cross-examination on the point. However, Mr. Doyle’s evidence suffered from a number of difficulties, largely being consistency, both internal and external, and believability. [ 103 ] In the first instance, Mr. Doyle gave quite detailed evidence about his and Ms. Thomson’s activities in the days following the departure of Mr. Hill and Ms. Lippmann.

He was able to recall exactly what occurred on these specific days. [ 104 ] Mr. Doyle’s evidence is largely premised on there being a major threat from Clay in relation to Mr. Hill’s drug rip-off. This threat, he says, was realized by the later assault on Ms. Thomson at the Apartment. Mr. Doyle said that they had nowhere else to go but to stay at the Apartment. He says that he and Ms. Thomson stayed there only once and stopped a couple of times. Mr. Doyle’s evidence is largely rebutted by Ms. Thomson’s evidence and the evidence of Ms.

Lippmann regarding the condition of the Apartment and state in which it was later found. I also reject Mr. Doyle’s evidence that he and Ms. Thomson were worried of this threat to the point that they would be wary of staying at the Apartment. While Mr. Doyle did, as a matter of course, put the dirt bike and extra fridge against the door, this is equally indicative of defensive measures against anyone who might wish to break in to steal drugs or cash. I reject Mr. Doyle’s evidence and find that Ms. Thomson and Mr. Doyle were quite happy to stay at the Apartment and that they used it extensively. [ 105 ] Mr.

Doyle indicated in his evidence that he was quite proud of his promotion to Mr. Hill’s position in the Fort St. John drug dealing business and he clearly did not have the personal safety issues of Mr. Hill to the point that he felt he needed to leave town immediately. He was also quite clear in stating that he made sure that he did not meet Clay’s mother so that Clay would not know his identity. Again, Ms. Thomson had little concerns about her own safety since she considered that she was simply a “worker” and not responsible for the drug rip-off. [ 106 ] As was highlighted during Mr.

Doyle’s cross-examination, if he was truly concerned about repercussions to himself from Clay then it belies belief that he would stay at the Apartment where Mr. Hill had lived, rather than staying at a local hotel or motel. There was no question that he had the financial resources to do so and in fact, he had lived in a local hotel before while conducting his drug dealing activities. [ 107 ] I acknowledge again the evidence of both Mr. Doyle and Ms.

Thomson about a possible break-in attempt in late June, however, if that is in fact what happened, it may equally have been other intruders simply looking for drugs or money given Mr. Doyle’s reputation in what is a small community. There was no evidence about this being Clay’s people. Nor did it elevate any risk concerns since it did not affect Mr. Doyle’s and Ms. Thomson’s decision to stay at the Apartment, even afterwards.

[108] One of the major discrepancies from Mr. Doyle’s carefully prepared timeline of events arose in relation to the cell phone callsthat Ms. Thomson was said to have made from the Apartment during or after the attack from the thugs. Consistent with his detailedevidence in direct about what happened on specific days in late June, Mr. Doyle says that they had a fight at the Apartment on June 26where he broke Ms. Thomson’s cell phone and she broke his “personal” cell phone but not his “work” phone. He gave evidence that theybought Ms. Thomson another phone but didn’t hook it for “close to a week”.

This is clearly impossible since that would have taken theminto early July after this assault on Ms. Thomson was said to occur. As to how Ms. Thomson could have called him from the Apartmentnot once but twice, Mr. Doyle was only able to say that he didn’t know whose phone she was using. [109] Ms. Thomson was clear in her evidence that before her first visit to the hospital, she didn’t have a cell phone. During cross-examination, she did state, consistent with Mr. Doyle’s evidence that they had hooked up a replacement phone for her.

But she was alsoclear that this happened on the day following her release from hospital after Mr. Doyle picked her up and well after the supposed visit bythe thugs. [110] Mr. Doyle gave evidence that these thugs were able to enter the Apartment because Ms. Thomson had left the door open so thathe could come in easily when he returned. No damage was found to the door or door jamb that would indicate forced entry to theApartment by the thugs. I find this to be an extremely unlikely scenario, particularly in light of Ms. Thomson’s evidence that someonehad tried to gain entry only some days prior. In addition, Mr.

Doyle had his own set of keys so there was no need to “leave the dooropen”. [111] The shotgun is obviously telling evidence and Mr. Doyle’s evidence about how he picked it up conveniently explains why hisDNA was found on it. He does not dispute that Ms. Thomson’s injuries are consistent with her having been beaten on the face and headwith the muzzle and that her broken forearms are consistent with her having put her arms up in a defensive manner to avoid blows by theweapon. [112] The first question that was raised, but not answered, is that if Ms.

Thomson was beaten up by thugs hired by Clay, the drugdealer, then why would such thugs leave behind such damning evidence? It belies belief that three criminal thugs, armed with thisweapon, would leave behind any weapon, let alone a sawed off shotgun, after assaulting a young woman with it. One has to assume thatthey wore gloves. [113] Mr. Doyle’s careful placement of the shotgun and the shells in the dishwasher in the aftermath of this alleged assault by thesethugs is also questionable. He says he didn’t want anything to do with it yet he took no steps to dispose of it as soon as possible.

Hisexplanation was that it had to be hidden from view in case of curfew checks for Omar. The RCMP had previously conducted curfewchecks for Omar at the Apartment as late as May 11, 2012. They did not, however, enter the Apartment during those checks and with thedirt bike and extra fridge in front of the front door, Mr. Doyle would have had plenty of time to hide the weapon in such event. Evenmore telling is Mr. Doyle’s evidence that Omar was in jail by the time that Mr. Hill and Ms. Lippmann left town so he could not haveexpected any curfew checks at all. [114] Ms. Thomson’s evidence about Mr.

Doyle’s alterations to the shotgun and how he carried it were consistent with the weapon asfound and also the Puma bag found in the Apartment. [115] Mr. Doyle’s evidence about Ms. Thomson “flipping out” and attacking him with a screwdriver is equally inexplicable. Even byMr. Doyle’s evidence, Ms. Thomson was anxious that he return to the Apartment to rescue her from the thugs or in any event, assist herin dealing with the aftermath. By this time, she had severe injuries to her head and face and two fractured arms.

I find the suggestion -that after suffering a severe beating to the point that her arms were broken, Ms. Thomson attacked Mr. Doyle - completely unbelievable.Even Mr. Doyle’s evidence was that she wanted him to return to the Apartment to assist her. [116] Mr. Doyle was also wrong in his timeline in terms of when Ms. Thomson washed the blood from her hair. He said it was afterthe attack but before the first visit to the hospital when I find as a fact that it was after the first but before the second visit to the hospital,consistent with the observations of Nurse Panio. [117] Mr.

Doyle’s evidence as to what happened when they returned to the Apartment on July 1 is also suspect. Despite his evidenceabout fearing Clay’s people and the attack on Ms. Thomson, that they would return to the scene of the crime to get some personalbelongings and a keg of beer is strange indeed. It is abundantly clear that the most important possessions of both Mr. Doyle andMs. Thomson at this time were the drugs and the cash they carried on themselves or stashed elsewhere. [118] Even more to the point is that if they had such fears and wanted to quickly pick up these items, why would Mr.

Doyle take thetime to push the fridge and the dirt bike against the door? Mr. Doyle has no real answer to this question. Why would they linger to go tothe bathroom or, as he alleges, sit down in the living room to do crack? Why would they not immediately vacate to a motel since theyhad the cash to afford such accommodations? The logical inference is that there was no threat, either past or present, and that Mr. Doyleand Ms. Thomson returned to the Apartment as they had in the past with the intention of continuing to squat there and deal drugs. In fact,Mr.

Doyle said in direct testimony that the Apartment was safer after Mr. Hill ripped off Clay and they also had “nowhere else to go”. [119] Mr. Doyle’s evidence was also contradictory regarding the keg of beer he wanted to retrieve from the Apartment. Mr. Doyle wasquite confident that at some point, he put his precious keg in the van. However, he was unable to say when he could have done so. By hisown earlier account, he had gone there to quickly pick up the keg and had then been waylaid by Ms. Thomson jumping off the balcony.He said when he got out of the Apartment afterward, the van was gone.

On this point, his allegedly quite detailed memory to that point,failed him. [120] Mr. Doyle’s theory about why Ms. Thomson would jump off a 3rd floor balcony is equally strange. By this time, Mr. Doyle hadplaced the dirt bike and fridge in front of the door. As the Crown queried, if Ms. Thomson had heard something in the hallway, whywouldn’t she have called out to him rather than simply jumping off the balcony? [121] Both counsel agree that this case requires the approach dictated in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. By

that authority, I must first address whether Mr. Doyle is to be believed. If so, he must be acquitted of the charges contained in Counts 1-5 and 8. [ 122 ] The Crown refers to R. v. Mann , 2010 BCCA 569 as an example of a W.(D). case where the judge was required to assess the credibility of various witnesses, including the accused, in arriving at a conclusion. The critical issue in that case was whether a witness, Mr. Flanders, was in the vehicle in accordance with the testimony of the accused. As noted by the Court of Appeal, the trial judge rejected the evidence of both Mr.

Flanders and the accused: [14] In his reasons for judgment the judge strongly rejected the testimony of Mr. Flanders.

The appellant provided a list of the judge’s findings concerning that testimony: • “neither a credible nor reliable witness” • “inconsistent” and contradictory; • “untruthful” • lacking any air of reality; • unreasonable; • giving evidence with aspects “so improbable and implausible as to be completely unbelievable”; • doing things that contradicted his stated intention and thinking; • doing things that were illogical and unlikely; • offering evidence convenient to the defence, as it would explain away the Appellant’s DNA on the magazine of the gun; • giving evidence with “no logical sense”; • having a significant criminal record suggesting he was embedded in criminality, which suggests he “is not an honest person and is someone who is less likely to be truthful” • facing no appreciable risk for testifying falsely • not being independent, but rather a friend of the two accused men The judge concluded the evidence of Mr.

Flanders was “not true nor could it be reasonably true as it is unreasonable ... I do not ... find that Mr. Flanders was in Mr. Riach’s vehicle ...”. [ 123 ] I do consider that similar conclusions can be made in this case in relation to the testimony of Mr. Doyle. [ 124 ] I find that Mr. Doyle was not a witness to be believed. [ 125 ] Mr. Doyle’s quite lengthy record of convictions was put into evidence: Canada Evidence Act , R.S.C. 1985, c. C-5, s. 12. Although clearly not determinative in and of itself, his life of crime, even beyond these convictions, does suggest to some extent that Mr.

Doyle is less likely to be truthful. His activities in Fort St. John, including his participation in the theft from Clay and his own stealing of Mr. Hill’s gun from the locker, confirm that Mr. Doyle is not an honest person. Similar to that noted in Mann , Mr. Doyle does not realistically face any increased risk for perjuring himself. [ 126 ] Mr. Doyle has clearly crafted a very detailed description of events which attempts to, and in large part does, correspond to the physical evidence. However, as I have indicated, there are some major gaps in his evidence, particularly regarding how Ms.

Thomson could possibly have phoned him from the Apartment when she had no cell phone. The many more inconsistencies, as noted above, point to the weakness of his overall story. [ 127 ] Moreover, many aspects of his evidence, particularly with regards to the shotgun, are simply unbelievable, illogical and lacking any “air of reality”. [ 128 ] Having reviewed the entirety of Mr. Doyle’s evidence, I completely reject his evidence that they were facing a major threat from Clay’s people or anyone else in late June 2012. Mr. Doyle and Ms.

Thomson did not alter their lifestyle at all as a result of what were admittedly concerns. Mr. Doyle continued as before to deal drugs in Fort St. John, happily stepping into Mr. Hill’s shoes. [ 129 ] I also find that Mr. Doyle’s evidence about Ms. Thomson being attacked by three masked and armed men in the Apartment and about the events that occurred later at the Apartment on July 2 is not to be believed and I completely reject it. It is, as I earlier stated, a story fabricated to correspond with the physical evidence, even down to the fight with the screwdriver. [ 130 ] Despite rejecting and not believing Mr.

Doyle’s evidence, W.(D.) dictates that the court must still acquit if that evidence in the context of the evidence as a whole leaves me in any reasonable doubt. I have no hesitation in concluding that Mr. Doyle’s evidence as to how Ms. Thomson sustained these injuries is a complete fiction and after considering his evidence in the context of all the evidence, I am not left with any reasonable doubt in that sense. [ 131 ] I now turn to a consideration of the other evidence. [ 132 ] I found Ms. Thomson to be a credible witness. She gave her evidence in a straightforward and forthright manner. She readily

conceded that she was not sure of many details although that is clearly understandable given that these many events occurred within ashort time frame and were traumatic events given the level of violence and personal jeopardy (on either her or Mr. Doyle’s version of theevents). She was not shaken on cross-examination and on some key points, that I will discuss below, Mr. Doyle did not contradict her. [133] Ms. Thomson’s evidence was, for the most part, consistent with the physical evidence and the evidence of Mr. Doyle that I haveaccepted. It was also consistent with the overall history of her and Mr.

Doyle leading up to the events in late June and early July 2012.Theirs was a relationship of violence and control. The fights that led to the assaults with the shotgun and the threats at the Apartment areconsistent with the level of violence in their relationship. The escalation to these particular assaults are also consistent withMs. Thomson’s evidence that after Mr. Hill left, things got worse with increased drug use by Mr. Doyle. [134] Despite some safety concerns, I find that Mr. Doyle and Ms. Thomson were quite happy staying in the Apartment andcontinuing their drug lifestyle after Mr. Hill left. [135] Mr.

Doyle’s lifestyle, and his concerns about repercussions from Clay, is entirely consistent with him having come intopossession of the shotgun. Ms. Thomson was able to provide a detailed description of how it was altered and how it was handled byMr. Doyle which was consistent with where it was ultimately found in the Apartment in the dishwasher. Her identification of the Pumabag found in the Apartment in later photographs was also consistent with her earlier evidence as to how Mr. Doyle carried the shotgunaround.

It is also consistent with the earlier 911 call to the hospital on July 2 regarding the shotgun and the Puma bag that no doubtoriginated with Ms. Thomson. [136] Ms. Thomson’s evidence about what happened at the Apartment on July 2 is also believable and consistent. What started as afight in the van continued once they got inside and Mr. Doyle had secured the door with the fridge and dirt bike. I accept Ms. Thomson’sevidence that Mr. Doyle said “look who’s got who now” in the context of his pointing the shotgun at her and threatening to kill her.

Shestated a number of times in her evidence that she firmly believed that he was going to kill her and that this was the reason why she tookthe extreme measure of jumping off the balcony. Clearly, the risks she faced in the Apartment were greater than those faced by jumpingoff the balcony, a manoeuvre that quite obviously could result in physical harm or the aggravation of her existing injuries. It belies beliefthat she would have jumped off the balcony simply because of any sounds heard in the hallway, particularly when Mr. Doyle heard nosuch thing nor did Ms.

Thomson sound any alarm arising from any such sounds. [137] I accept Ms. Thomson’s evidence that Mr. Doyle was threatening her with the shotgun right up until the time she jumped fromthe balcony to save herself. [138] After the incidents, Ms. Thomson corresponded with Mr. Doyle while he was incarcerated and there was an exchange of “love”letters between them. In one letter, Ms. Thomson said she was “sorry”, that “I know it wasn’t you that hurt me, everybody made mebelieve it was”. She then says that she remembered that they were at a bar and she thought somebody put GHB in her drink because sheblacked out.

She was drunk while writing this letter. The letter is in very loving terms and Ms. Thomson says that she can’t wait to bewith Mr. Doyle. I do not consider that this letter supports the contention that Ms. Thomson is not to be believed in that it presents adifferent version of events. This incident involving GHB is not said by her to relate to the current matters in any event. In fact,Mr. Doyle’s counsel did not argue that I should take anything from this letter. [139] Ms. Thomson explained on the stand that she recognizes that neither she nor Mr.

Doyle is necessarily innocent and that theyboth did things while under the influence of drugs that Ms. Thomson now certainly regrets. That is obviously the case. Ms. Thomson’sfeelings for Mr. Doyle at the time she wrote the letter remained and she was clearly looking to forgive him then, just as she said she didat the hospital. This is entirely consistent with the controlling nature of Mr. Doyle over Ms. Thomson during the course of theirrelationship. [140] I accept Ms.

Thomson’s evidence as to the events from June 27 to July 2, 2012. [141] In particular, I accept her evidence about the two assaults, one that occurred in the Apartment on June 27 or June 28 and one thatoccurred in the van on June 30, both by which Mr. Doyle struck Ms. Thomson with his fist and with the shotgun. There is no issue on theevidence but that the assaults caused Ms. Thomson bodily harm. Mr. Doyle conceded that if I accepted the evidence of Ms. Thomson,the elements of the offences would have been made out. As such, after considering the entirety of the evidence, including that ofMr. Doyle and Ms.

Thomson, I am satisfied beyond a reasonable doubt that the charges in Counts 1, 5 and 8 are made out in relation tothese incidents. [142] I also accept Ms. Thomson’s evidence as to the events on July 2, 2012 at the Apartment in that Mr. Doyle, while pointing theshotgun at Ms. Thomson, threatened to kill or harm her. Again, Mr. Doyle conceded that if I accepted the evidence of Ms. Thomson onthis matter, the elements of the offences would have been made out.

As such, after considering the entirety of the evidence, I am satisfiedbeyond a reasonable doubt that the charges in Counts 3, 4 and 5 are made out in relation to this July 2 incident. [143] The last matter relates to the charge of unlawful confinement in Count 2. Section 279(2) of the Criminal Code provides: Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of (

a) an indictable offence ... [144] In R. v. Pritchard, 2008 SCC 59, Mr. Justice Binnie wrote for the court on unlawful confinement: [24] The authorities establish that if for any significant period of time Mrs. Skolos was coercively restrained or directed contrary toher wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement withins. 279(2): see Luxton, at p. 723; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), per Cory J.A., at p. 475; R. v. Tremblay (1997), (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.), per LeBel J.A. (as he then was), at pp. 91-92; and R. v. Mullings, 2005CarswellOnt 3022 (S.C.J.), per Durno J., at para. 39.

[145] In R. v. Niedermier, 2005 BCCA 15, the court discussed the elements of this offence in greater detail: [44] What constitutes unlawful confinement was considered in R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), leave toappeal to the Supreme Court of Canada refused [1985] 1 S.C.R. viii.

In that case, Cory J.A., as he then was, approved the followingdefinition of unlawful confinement, at 473: ... physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving theperson of his or her liberty to move from one place to another, is required in order to constitute forcible or unlawful confinement. Suchconfinement need not be by way of physical application of bindings. [45] The definition of unlawful confinement in Gratton was accepted as "the state of the law in Canada" by LeBel J.A., as he thenwas, in R. v.

Tremblay (1997), (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.) at 93. In Tremblay, the accused hadoffered the complainant, a waitress in a bar, a ride home at the end of her shift. She accepted his invitation but after getting into his car,the accused repeatedly refused to follow her directions to her home. The complainant escaped by opening the unlocked car door andjumping out of the moving vehicle. At trial, the defence moved for a directed verdict, arguing that the Crown had not established theintention to forcibly confine.

The trial judge granted the motion and acquitted the accused because the complainant had voluntarilyentered into the vehicle where the alleged confinement had taken place. On appeal the verdict was set aside and a new trial was ordered. [46] Mr. Justice LeBel held that the offence of unlawful confinement is committed "as soon as a person's movement is restricted,voluntarily and with full knowledge thereof" (at 90).

The required mens rea or mental element is the intention to confine but, as LeBelJ.A. pointed out at 92: "the intent to forcibly confine a person can be inferred from all of the accused's actions." [47] Moreover, a state of confinement may develop over time, as LeBel J.A. observed, at 92: The forcible confinement must have lasted a significant period of time. However, in order to find forcible confinement, the Crown is notrequired to show that the victim was prevented from moving from one place to another as of the very first moment that the victim is inthe presence of the accused.

The existence of initial liberty can be followed by the development of a state of forcible confinement .... [48] The actus reus of the offence requires proof of: (1) a confinement, (2) the confinement is without lawful authority, and (3) alack of consent by the complainant to the confinement. Proof of the first two elements is objective; the third, subjective. …. [146] Mr. Doyle’s counsel quite rightly points out that the securing of the Apartment by moving the fridge and dirt bike in front of thedoor is not conclusive of Mr. Doyle’s intent to confine Ms. Thomson in that it was done by Mr.

Doyle as a matter of course when theycame into the Apartment for security reasons. However, I have accepted the evidence of Ms. Thomson that Mr. Doyle made a commentto her to the effect of “look who’s got who now”. In those circumstances and taking the entirety of Mr. Doyle’s actions at that time intoaccount, I conclude that the Crown has proved beyond a reasonable doubt that Mr. Doyle had formed the intention at that time to preventMs.

Thomson from leaving the Apartment by not only securing the doorway but also threatening her with the shotgun within theconfines of the Apartment. [147] I also find that the Crown has proven beyond a reasonable doubt that there was a confinement of Ms. Thomson without anylawful authority in the sense that she was prevented at gunpoint from leaving the Apartment. I also conclude that Ms.

Thomson did not consent to any such confinement and her desperate attempt to escape the Apartment by jumping off the 3rd floor balcony is supportive ofa finding that she had that subjective state of mind. [148] I am satisfied beyond a reasonable doubt that the unlawful confinement charge in Count 2 is made out in relation to the incidenton July 2. (ii) Other Weapons Offences [149] Mr. Doyle is also charged with two counts of further weapons offences under the Criminal Code, all of which are alleged tohave occurred between June 27 and July 2, 2012 in Fort St. John:

a) Count 6 - Possess a firearm (either loaded or unloaded with readily accessible ammunition) while not a holder of a license: s. 91(1);and

b) Count 7 - Possess a prohibited firearm (either loaded or unloaded with readily accessible ammunition) while not a holder of a license:s. 95(1). [150] The shotgun was examined by the RCMP Forensic Laboratory and in particular, Christopher Kerr who was qualified as anexpert in firearm analysis. Mr. Kerr identified the shotgun as a Winchester Ranger model 120 pump action 12 gauge shotgun. Hisanalysis confirmed that the shotgun was operational and as such, his opinion was that the shotgun is a “firearm” within the meaning ofs. 2 of the Criminal Code. [151] In addition, Mr.

Kerr’s measurements confirmed that as a result of the modifications to the shotgun, and with an overall length of673 mm and a barrel length of 408 mm, it is a “prohibited firearm” as that is defined in s. 84(1) of the Criminal Code. [152] The evidence also confirmed that the 5 shells were live rounds. [153] The evidence also established that Mr. Doyle holds no license to possess or acquire a firearm under the Firearms Act, S.C. 1995,c. 39. [154] Mr. Doyle conceded at the trial that he is guilty of Counts 6 and 7 regarding his possession of the shotgun without being theholder of a license.

[ 155 ] I am satisfied beyond a reasonable doubt that the charges in Counts 6 and 7 are made out in relation to Mr. Doyle’s possession of the sawed off shotgun during the incidents taking place between June 27 and July 2, 2012. Conclusion [ 156 ] I find Mr. Doyle guilty of all the charges brought in relation to Counts 1 to 8. “Fitzpatrick J.”