R. v. Jones Date:, 2016 BCPC 460

Citation: R. v. Jones Date: 20161220 2016 BCPC 460 File No: 11870-1 Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. CALVIN ALBERT JONES ORAL REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Via Videoconference Counsel for the Crown: P. Swartz Counsel for the Defendant: R. Nielsen Place of Hearing: Fort Nelson , B.C. Dates of Hearing: August 10, 11, 12, November 23, 24, 2016 Date of Judgment: December 20, 2016

INTRODUCTION [ 1 ] THE COURT: Calvin Jones is charged on a three-count Information with the attempted murder and robbery of Timothy Haslam, and with using violence against Mr. Haslam to compel him to abstain from testifying against Mr. Jones. [ 2 ] The Crown has proceeded by indictment. Mr. Jones has entered not guilty pleas to all of the charges against him, and I heard approximately four-and-a-half days of evidence in this trial. [ 3 ] Mr. Jones testified in his defence so the legal principles set out in the Supreme Court of Canada's decision in R. v.

W.(D.) apply to this case. [ 4 ] At the conclusion of this trial, Mr. Swartz, acting for the Crown, invited me to enter not guilty verdicts on Counts 2 and 3 on this Information, and I am prepared to register those verdicts on the record of proceedings. [ 5 ] This case has, as a fairly dominant feature in the evidence, a disturbing abundance of alcoholism. Mr. Haslam, the complainant, is an unapologetic alcoholic who was impaired by alcohol on the night in question, that being January 24, 2016. A key witness, Ann Capot Blanc is, likewise, an unapologetic alcoholic who was impaired by alcohol while present in Mr.

Haslam's apartment during the evening of January 24, 2016. Kenny St. Amand, another key witness in the Crown's case, is an alcoholic, but there is no evidence before me that his consumption of alcohol has any impact on his evidence in this case. [ 6 ] The Crown called evidence from Mr. Haslam and Ms. Capot Blanc about a violent altercation between Mr. Jones and Mr. Haslam during the evening of January 24, 2016. [ 7 ] In his defence, Mr.

Jones denies any such violent altercation and called evidence to establish he was at home, fighting with his common law partner, Kailey Rioux, for hours throughout the late evening of January 24 and early morning hours of January 25, 2016. [ 8 ] As with all criminal cases, this case stands to be determined on whether or not I find that the Crown has established, beyond a reasonable doubt, that Mr. Jones attempted to murder Mr. Haslam on January 24, 2016, or if he committed an assault of Mr. Haslam and in doing so committed bodily harm to Mr. Haslam.

BACKGROUND [ 9 ] The principal individuals in this case all know each other. They are all friends or acquaintances. Identity is not an issue in this case, or at least it is not an issue with respect to Mr. Jones being present in Mr. Haslam's apartment during the evening of January 24, 2016. [ 10 ] The relevant evidence that helps to inform what occurred in Mr. Haslam's apartment on January 24, 2016 begins with an incident that occurred on November 15, 2015. On that date, there was a social gathering in the house of Kenny St. Amand and his partner, Chantelle Thrasher. [ 11 ] Mr. St. Amand and Ms.

Thrasher live in the same apartment complex as Mr. Haslam. That apartment complex is a very short walk from Mr. Jones' home in a different apartment complex where he lived with his partner, Kailey Rioux. Ms. Rioux's mother, Ms. Beaulieu, lived in an apartment directly above Mr. Jones and Ms. Rioux. [ 12 ] The apartment complex where Mr. St. Amand, Ms. Thrasher, and Mr. Haslam all lived is a two-storey building with an exterior walkway running the length of the building on the second floor. THE PRIOR INCIDENT [ 13 ] On November 15, 2015, a group of friends and acquaintances had gathered in Mr. St. Amand's and Ms.

Thrasher's apartment. Among others, those present were Mr. St. Amand, Ms. Thrasher, Mr. Haslam and Mr. Jones. Everyone was drinking alcohol that night. [ 14 ] At some point, a disagreement developed between Mr. Jones and Mr. St. Amand or Ms. Thrasher. Mr. Jones was told to leave the apartment. While nothing physical developed during this dispute, Mr. Jones left the gathering upset. He slammed the apartment door on his way out. Immediately after Mr. Jones slammed the apartment door, Mr. St.

Amand's front window shattered. [ 15 ] I will refer to this incident throughout these reasons as the "Prior Incident." [ 16 ] Given the dynamics that had just unfolded - a dispute within the apartment, Mr. Jones being told to leave, Mr. Jones angrily leaving and slamming the apartment door, and then the front window of the apartment shattering - Mr. Haslam, who was still in the St. Amand/Thrasher apartment, drew the reasonable conclusion that Mr. Jones had intentionally kicked in the front window of the apartment. [ 17 ] It bears mentioning and emphasizing that nobody saw Mr. Jones kick in the front window.

That was a conclusion reached by Mr. Haslam, given how the events unfolded. Mr. Jones did not remain at the scene after the window was broken to explain that it was an accident. [ 18 ] Under the circumstances, Mr. St. Amand asked Mr. Haslam to call the police to report that Mr. Jones had just broken the front window to his apartment. Mr. Haslam made that call to the police and reported that Mr. Jones had just kicked in Mr. St. Amand's front window. [ 19 ] In fact, what had occurred is that Mr. Jones had broken Mr. St. Amand's window with his right hand. In his evidence at this trial, Mr.

Jones testified that after he left the St. Amand/Thrasher apartment, he slipped on the frost on the exterior walkway outside the

front door and accidentally put his right hand through the front window. [ 20 ] There is no doubt that Mr. Jones sustained a significant injury to his right hand in this incident. He severed a tendon in his right hand, with the result that he lost mobility and some use of his right hand. His injuries required stitches, which he received at the Fort Nelson hospital that night. Ultimately Mr. Jones's right hand injury was treated by doctors while he was incarcerated at the Prince George Regional Correctional Centre. [ 21 ] The significance of this Prior Incident is this: Mr. Haslam reported to the police that Mr.

Jones had deliberately smashed the front window of the St. Amand/Thrasher apartment by kicking it in, the result of which was that Mr. Jones was charged with mischief. [ 22 ] Mr. Jones says the broken window was a pure accident, when he slipped on the frost outside the front door of the St. Amand/Thrasher apartment. [ 23 ] When Mr. Jones learned that Mr. Haslam had reported him to the police, Mr. Jones was understandably upset. In communicating with others over Facebook in the immediate aftermath of this Prior Incident, Mr. Jones referred to Mr. Haslam as a "rat." [ 24 ] Mr.

Jones was eventually arrested on the mischief charge and released on bail with conditions to have no contact, directly or indirectly, with Mr. St. Amand or Mr. Haslam. Those protective conditions were of no moment to Mr. Jones and he breached them by repeatedly spending time with Mr. St. Amand, and by having contact with Mr. Haslam approximately one week prior to the January 24, 2016 incident, and by attending inside Mr. Haslam's apartment during the evening of January 24, 2016. [ 25 ] Mr. Jones had a previously scheduled court appearance on January 25, 2016, so the morning after the events in question inside Mr.

Haslam's apartment during the evening of January 24th. Those are the events which form the basis of the charges in this trial. THE EVENTS OF JANUARY 24, 2016 [ 26 ] I heard evidence from a number of witnesses as to what transpired during the evening of January 24, 2016. Only three people were inside Mr.

Haslam's apartment during the relevant time on January 24, 2016, the complainant Timothy Haslam; a witness Ann Capot Blanc; and the accused, Calvin Jones. [ 27 ] Other witnesses testified about events that happened during the evening of January 24, 2016, and in some respects, the evidence of the witnesses cannot be reconciled with other evidence I heard. I will provide a

summary of the evidence of each of the witnesses before turning to my analysis of that evidence, and making my factual findings. A. Timothy Haslam [ 28 ] Mr. Haslam testified that he is a 55-year-old alcoholic. He lives in Unit 12 in an apartment complex called the Westview Manor. Kenny St. Amand and Chantelle Thrasher live in Unit 8 of the same apartment complex, just a few doors down on the second floor of the building. [ 29 ] Mr. Haslam described a social relationship with Mr. Jones. They spent time together and had known each other for approximately four years. Mr. Haslam considered he and Mr.

Jones to be friends. [ 30 ] Mr. Haslam has known Ann Capot Blanc also for approximately four years. [ 31 ] Mr. Haslam described for me what he recalls happening during the Prior Incident on November 15, 2015, at the St. Amand/Thrasher apartment. Mr. Haslam described an argument that developed involving Mr. Jones when he was asked to leave the apartment. Mr. Jones left the apartment and slammed the door on his way out. Mr. Haslam was asked to call the police, which he did. He believes he told the police that Mr. Jones had kicked in the front window of the St. Amand/Thrasher apartment because that is what Mr.

Haslam thought made the most sense. [ 32 ] Mr. Haslam understood that Mr. Jones was upset with him for reporting the broken window to the police. Mr. Jones referred to Mr. Haslam as a rat, as I have indicated. [ 33 ] Mr. Haslam acknowledged that on a subsequent occasion, he met Mr. Jones at Mr. St. Amand's apartment, where Mr. Jones told Mr. Haslam that any dispute over Mr. Haslam's phone call to the police after the Prior Incident was water under the bridge. Mr. Jones said he considered that dispute to be bygones. [ 34 ] Mr.

Haslam then turned in his evidence to tell me about what he remembers from the evening of January 24, 2016. He believes he ate dinner alone and, at first, he told me he did not start drinking until later in the evening, possibly around 9:00 p.m. At approximately 10:00 p.m., Ann Capot Blanc knocked on Mr. Haslam's door, asking to come in out of the cold. Mr. Haslam obliged, but it was to be a short visit as Ms. Capot Blanc is banned from that apartment complex. [ 35 ] Mr. Haslam gave Ms. Capot Blanc a beer and about 10 minutes later, Mr. Jones arrived at Mr. Haslam's apartment. Mr. Haslam invited Mr.

Jones into the apartment and offered him a beer. [ 36 ] At some point before 11:00 p.m., Mr. Jones and Ms. Capot Blanc left Mr. Haslam's apartment to go and pick up some more alcohol, and they both returned with a large bottle of vodka to Mr. Haslam's apartment. [ 37 ] I am going to pause here in my

summary of the evidence to make some comments regarding the timing of the events during the evening of January 24, 2016. [ 38 ] It is clear to me that none of the witnesses was paying much attention to the time on the clock as events unfolded that night. I say that for reasons I will elaborate on later in this decision, but there are some undeniable facts in this case which all witnesses agree on, and those undeniable facts are the following.

[ 39 ] During the evening of January 24, 2016, Ms. Capot Blanc and Mr. Jones were present in Mr. Haslam's apartment. At some point prior to 11:00 p.m., Mr. Jones drove Ms. Capot Blanc to a liquor store associated with a local bar, and Ms. Capot Blanc stole a large bottle of vodka from the liquor store, and she and Mr. Jones returned with the bottle of vodka to Mr. Haslam's apartment. I know they left Mr. Haslam's apartment before 11:00 p.m. because the liquor store closes at 11:00 p.m. Mr. Jones and Ms. Capot Blanc drank some of that vodka with Mr.

Haslam. [ 40 ] There was an argument that led to a physical altercation between Mr. Haslam and Mr. Jones that evening, although the extent of that physical altercation is disputed. [ 41 ] When Mr.

Haslam awoke in the early hours of January 25, 2016, he had sustained significant and extensive injuries to his face, neck and chest that required hospitalization. [ 42 ] So, while I will summarize the evidence of the witnesses and what they said happened, their evidence as to the precise timing of when all of these events occurred differs, in some respects, quite significantly. [ 43 ] I believe their evidence is weakened with respect to the timing of events because of alcohol that was consumed during the evening and because nobody was paying any close attention to the time on the clock. [ 44 ] Returning to my

summary of Mr. Haslam's evidence, he testified after Mr. Jones and Ms. Capot Blanc had been in his apartment for about an hour, they left to pick up a bottle of vodka. He said they returned around 11:30 or 11:45 p.m. He testified that upon Mr. Jones and Ms. Capot Blanc's return with the vodka, they all had a few sips out of the bottle. [ 45 ] Mr. Haslam then got up to go to the washroom. When he came out of the washroom, and as he was making his way back to his couch, Mr. Jones struck Mr. Haslam on the left side of his head. Mr. Haslam is not sure what he was struck with. [ 46 ] Mr.

Haslam said he was knocked to the floor and Mr. Jones was on top of him, hitting him repeatedly in his face. He said Mr. Jones had a towel around Mr. Haslam's throat and was choking him, and said "I'm going to fucking kill you." [ 47 ] Mr. Haslam said he lost consciousness and he woke up lying in a pool of blood. The front door to his apartment was closed, but not locked. He went into his bathroom to clean up and saw a Harley Davidson beach towel in his bathtub. He had no idea how the towel got into the bathtub. [ 48 ] Mr. Haslam was not sure what time he woke up.

After cleaning himself up somewhat, he went to bed. [ 49 ] Later that morning, he got up and was cleaning up his apartment and it dawned on him what had happened the night before. He also noticed some of his personal effects had gone missing. Some of the missing items were found in Ms. Capot Blanc's possession a few days later. [ 50 ] Kenny St. Amand came and knocked on Mr. Haslam's door sometime around noon or 1:00 p.m. on January 25, 2016. Mr. St. Amand was the first person to see Mr. Haslam and he called an ambulance. [ 51 ] Mr.

Haslam spent approximately five days in the hospital recovering from his substantial injuries sustained the night before. [ 52 ] Prior to concluding his direct examination, Mr. Haslam read over some statements he had given to the police in the days following January 24, 2016. After reviewing those statements, he confirmed that he told the police that Mr. Jones made some comment during this alleged altercation about the Prior Incident on November 15, 2015, but Mr. Haslam was unable to recall what Mr. Jones said about the Prior Incident. [ 53 ] Mr.

Haslam also confirmed that he told the police that at some point, there was a knife involved in Mr. Jones' alleged assault of Mr. Haslam, but Mr. Haslam said the knife was not used in any way to injure or wound Mr. Haslam that night. [ 54 ] In cross-examination, Mr. Haslam was confronted with the statement he gave to the police in which he told the police that he began drinking much earlier in the day, on January 24, 2016, than at 9:00 p.m. which is what he told me in his direct examination. [ 55 ] Mr. Haslam drinks every day. He gets drunk frequently. He is an alcoholic. I accept that Mr.

Haslam's police statement is more accurate than his evidence about his alcohol consumption on January 24, 2016, during this trial. [ 56 ] I accept that Mr. Haslam today cannot accurately recall exactly when he started drinking on January 24, 2016, and exactly how many beers he consumed that evening. B. Ann Capot Blanc [ 57 ] Ms. Capot Blanc testified that on January 24, 2016, she arrived at Mr. Haslam's apartment, and when she arrived Mr. Jones was already present in Mr. Haslam's apartment. [ 58 ] She said she was already drunk when she arrived.

In fact, she readily admitted that she is an alcoholic and that she did not have a good memory of the events that night. [ 59 ] Ms. Capot Blanc testified that she arrived at Mr. Haslam's apartment before 11:00 p.m. because she left and returned to Mr. Haslam's apartment with a 40-ounce bottle of vodka. Ms. Capot Blanc testified that while she was at Mr. Haslam's apartment, Mr. Haslam and Mr. Jones engaged in a physical fight. She said both men were on the floor between the couches fighting in Mr. Haslam's apartment and where, in Exhibit 1, at page 7, the photograph shows blood on the floor of Mr.

Haslam's apartment, that is the location the men were fighting. [ 60 ] Ms. Capot Blanc testified that she tried to separate the men and that she tried to clean up the blood on the floor of Mr. Haslam's

apartment. [ 61 ] Ms. Capot Blanc told me that when she first saw Mr. Haslam during the evening of January 24, 2016, he had no cuts on his face. She also said that when she left Mr. Haslam's apartment that night, no one was on the floor of the apartment. [ 62 ] In cross-examination, Ms. Capot Blanc confirmed that when she arrived at Mr. Haslam's apartment, Mr. Jones was present with his dog and that Mr. Jones had to return his dog home before rejoining her and Mr. Haslam at Mr. Haslam's apartment. [ 63 ] She said that, in the physical altercation between Mr. Haslam and Mr. Jones, Mr. Haslam was the aggressor.

She saw the two men throwing punches at each other and that, for a brief period of time, she left Mr. Haslam's apartment while the two men were fighting. She said that she did not see Mr. Jones strangle Mr. Haslam. [ 64 ] Ms. Capot Blanc was recalled by the Crown after lunch on the first day of this trial. Over the lunch adjournment, she had read her statements to the police. [ 65 ] Apparently, in her police statements, Ms. Capot Blanc told the police that she did not see Mr. Haslam and Mr.

Jones fighting, but, in court before me she was adamant that these two men were physically fighting each other that night, in her presence. [ 66 ] Before I review the evidence from the balance of the Crown witnesses, I propose to summarize Mr. Jones' evidence with respect to the events of January 24, 2016. C. Calvin Jones [ 67 ] Mr. Jones testified that he and his common-law partner, Kailey Rioux, have been in a relationship for over a year, and that they moved in to live together in November 2015. [ 68 ] During the evening of January 24, 2016, Mr. Jones testified that he took his dog out for a number of walks.

He said that when it is cold outside, he takes his dog for several short walks during the evening due to the cold temperature. [ 69 ] He said that while he was walking his dog, around 10:00 p.m., he met Mr. Haslam who was standing on the walkway outside of his second-floor apartment. Mr. Jones said that Mr. Haslam called out to Mr. Jones asking for cigarette. Mr. Jones walked up to Mr. Haslam to give him a cigarette and then the two men went into Mr. Haslam's apartment, along with Mr. Jones' dog. [ 70 ] Mr. Jones formed the opinion that Mr. Haslam was intoxicated because Mr.

Haslam was slurring his speech and he was staggering as he walked. Mr. Jones said Mr. Haslam offered him an Extra Old Stock beer, which Mr. Jones tasted but did not like so he says he poured the beer out in the sink. [ 71 ] Mr. Jones said he was in Mr. Haslam's apartment for approximately five minutes when Ann Capot Blanc arrived at the apartment. Mr. Haslam formed the opinion that Ms. Capot Blanc was intoxicated, and Ms. Capot Blanc acknowledged in her evidence that she was already intoxicated when she arrived at Mr. Haslam's apartment that evening. [ 72 ] Mr. Jones testified that Ms.

Capot Blanc wanted a ride to the liquor store so she could get more alcohol for the three of them to drink. Mr. Jones said that he would take his dog home and see if he could borrow a car to take Ms. Capot Blanc to the liquor store. Mr. Jones took his dog home and asked to borrow Ms. Rioux's mother's car. Ms. Rioux's mother loaned her car to Mr. Jones on condition that he return with her vehicle by 11:00 p.m. that night. [ 73 ] Mr. Jones drove back to Mr. Haslam's apartment with the vehicle and drove Ms. Capot Blanc to the liquor store, where she obtained the bottle of vodka, and they returned to Mr.

Haslam's apartment. Mr. Jones said he parked the car behind Mr. Haslam's apartment building because Ms. Capot Blanc had told him she had stolen the bottle of vodka and he did not want any trouble associated with Ms. Rioux's mother's vehicle. [ 74 ] Mr. Jones testified that he went into Mr. Haslam's apartment with Ms. Capot Blanc, but his intention was to only stay briefly because he was obliged to have the vehicle back to Ms. Rioux's mother by 11:00 p.m. [ 75 ] Mr. Jones said that he sat in a large green chair and Mr. Haslam and Ms. Capot Blanc were sitting together on a couch.

The three were discussing tattoo work Mr. Jones had done on each of them, and during the conversation, Ms. Capot Blanc went to turn on some music. [ 76 ] Mr. Jones testified that while he was at Mr. Haslam's apartment, Ms. Capot Blanc "flashed" her breasts at him, by which I infer she briefly exposed her naked breasts to Mr. Jones. Mr. Jones testified that this flashing incident upset Mr. Haslam, who then demanded that Mr. Jones finish his tattoo work on Mr. Haslam. Mr. Jones said he would charge Mr. Haslam for any more tattoo work. [ 77 ] As a brief aside, at some earlier point in time, Mr.

Jones had purchased a trailer from Mr. Haslam for $500, paid by $300 cash and a promise to deliver $200 worth of tattoo work. Mr. Jones had already performed some tattoo work on Mr. Haslam and some other people at Mr. Haslam's request, and Mr. Jones was of the view that he had fully delivered on his obligation to perform $200 worth of tattoo work. Mr. Jones said that when he told Mr. Haslam he would have to pay for any further tattoo work, Mr. Haslam got even more upset, so Mr. Jones started to put on his shoes to leave. [ 78 ] As he was putting on his shoes, he said Mr. Haslam came towards him demanding that Mr.

Jones go retrieve his tattoo gun to finish his tattoo work on Mr. Haslam. Mr. Jones refused, which led to Mr. Haslam shoving Mr. Jones. [ 79 ] Mr. Jones said Mr. Haslam was attacking him and was trying to hit him, so he shoved Mr. Haslam backwards, causing Mr. Haslam to stumble backwards. Mr. Haslam grabbed the edge of a loveseat and then fell back onto the couch. Mr. Jones says he then left Mr. Haslam's apartment and drove Ms. Rioux's mother's car home to meet his deadline to have the car back by 11:00 p.m.

[ 80 ] In his evidence, Mr. Jones told me nothing further about anything that happened that evening after he delivered the vehicle back home. [ 81 ] Mr. Jones concluded his direct examination by denying that he ever left the green chair where he was sitting in Mr. Haslam's apartment until he put on his shoes and got up to leave the apartment. He said Mr. Haslam was being a nuisance, like a mosquito. From Mr. Jones's evidence in chief, I infer a blanket denial that he assaulted and strangled Mr. Haslam, leading to the injuries Mr.

Haslam has depicted in the photographs in Exhibit 1. [ 82 ] Turning now to the other relevant witnesses. D. Kailey Rioux [ 83 ] Ms. Rioux is Mr. Jones's common-law partner. She testified that during the evening of January 24, 2016, Mr. Jones took his dog for a walk at approximately 10:00 p.m. When he returned from walking his dog, he asked to borrow Ms. Rioux's mother's truck, and he left in the truck. She testified that Mr. Jones returned 30 to 45 minutes later and he was calm, but he smelled of alcohol. [ 84 ] Ms. Rioux testified that Mr. Jones told her that he had been with Mr. Haslam and Ms.

Capot Blanc, and that he had consumed a couple of drinks. Ms. Rioux said that this revelation of having a couple of drinks with Mr. Haslam and Ms. Capot Blanc led to an extended argument between her and Mr. Jones. She said the two of them argued all night. In fact, they argued for so long and so loudly that Ms. Rioux's mother called the police because Ms. Rioux and Mr. Jones refused to stop arguing. [ 85 ] When the police arrived at Ms. Rioux's apartment, she told the police that Mr. Jones was not at the apartment. The police arrived at approximately 3:00 a.m. [ 86 ] In cross-examination, Ms.

Rioux testified that the reason she was upset when Mr. Jones returned to their apartment was because Mr. Jones has previously cheated on her with Ms. Capot Blanc, so his revelation that he had spent some time that evening with Ms. Capot Blanc and Mr. Haslam, having a couple of drinks, aroused some jealousy in Ms. Rioux. [ 87 ] Also in cross-examination, Ms. Rioux testified that Mr. Jones did not leave their apartment between 11:00 p.m. and 3:00 a.m. that night, as they were engaged in an extended argument based on Ms. Rioux's jealous reaction to Mr. Jones spending 30 to 45 minutes with Ms. Capot Blanc and Mr.

Haslam earlier that night. [ 88 ] Her evidence in this regard is inconsistent with what she told the police at 3:00 a.m., when she said Mr. Jones was not in the apartment. [ 89 ] Another feature of Ms. Rioux's evidence concerned Mr. Jones' use of his right hand after he severely lacerated his right hand breaking the window at the St. Amand/Thrasher apartment during the Prior Incident on November 15, 2015. [ 90 ] Ms. Rioux testified that Mr. Jones had significantly reduced use of his right hand. She said he could not make a fist with his right hand and that his right hand was very sore.

She said his reduced use of his right hand was a problem, right up until he went to jail on these charges. E. Chantelle Thrasher [ 91 ] Ms. Thrasher testified that she and Mr. St. Amand lived together in Unit 8 in the apartment complex where Mr. Haslam lives. On January 24, 2016, between 10:30 and 11:30 p.m., she heard a knock on her door. She and Mr. St. Amand had gone to bed so she did not respond to the door knock. She said she later heard another knock and a woman's voice. [ 92 ] After a third door knock, she got out of bed and discovered Mr. Haslam at her front door asking to borrow a cigarette lighter.

She said that Mr. Haslam appeared uninjured at that time. She said Mr. Haslam looked a bit drunk but was otherwise fine. The next day, she saw Mr. Haslam and he appeared to be severely injured. [ 93 ] She testified that the next day, January 25, 2016, Mr. St. Amand received a phone call from Mr. Jones. F. Kenny St. Amand [ 94 ] Mr. St. Amand testified that he is 36 years old and has lived with Ms. Thrasher for eight years. [ 95 ] He said that late in the evening, on January 24, 2016, he heard a knock on his apartment door. He said Ms. Thrasher got up and told Mr. Haslam to leave.

He testified that the next morning, on January 25, 2016, he received a phone call from Mr. Jones asking Mr. St. Amand to do Mr. Jones a favour and go check on Mr. Haslam because Mr. Jones said words to the effect "I think I left him for dead." [ 96 ] Mr. St. Amand did not think Mr. Jones was serious so he went back to bed and, at about 1:00 p.m. on January 25, 2016, he went and knocked on Mr. Haslam's door to discover a seriously injured Timothy Haslam, with bruising, cuts and swelling all over his face. Mr. St. Amand then notified others, and Mr.

Haslam was taken to the hospital. [ 97 ] I will return to this point later in this decision, but Mr. Jones in his evidence was not asked about the phone call, did not deny that he placed this phone call to Mr. St. Amand or Mr. St. Amand's evidence as to what was said during this phone call. [ 98 ] During cross-examination, Mr. St. Amand testified that his statement to the police concerning what happened during the Prior Incident was based upon what Mr. Haslam told him had happened, namely that Mr. Jones had kicked in and shattered Mr. St. Amand's front window. [ 99 ] Also during cross-examination, Mr. St.

Amand admitted that he had been untruthful in his statement to the police when he told

the police that, during the telephone call with Mr. Jones on January 25, 2016, Mr. Jones said he had used a towel to choke Mr. Haslam. In his evidence before me, Mr. St. Amand testified that Mr. Haslam told him Mr. Jones had used a towel when assaulting Mr. Haslam. [ 100 ] In re-examination, Mr. St. Amand said that the content of the phone call with Mr. Jones on January 25, 2016, wherein Mr. Jones said he thought he left Mr. Haslam for dead, was true. G. Jacinthe Beaulieu [ 101 ] Ms. Beaulieu is Kailey Rioux's mother and lived in the apartment directly above Mr. Jones and Ms. Rioux. Ms.

Beaulieu was called as a defence witness. [ 102 ] The thrust of Ms. Beaulieu's evidence was twofold. First, she testified that, due to Mr. Jones’ right hand injury sustained in the Prior Incident, Mr. Jones had very limited use of his right hand. She testified that Mr. Jones could not grip utensils in his right hand when he ate and he could not make a fist with his right hand. Ms. Beaulieu, Ms. Rioux and Mr. Jones told me, or I infer from their evidence, that in order to eat a meal, Mr. Jones needed someone else to cut his food because he could only use his left hand to eat. [ 103 ] The second feature of Ms.

Beaulieu's evidence is that she confirmed that she loaned her vehicle to Mr. Jones the evening of January 24, 2016, and that she stipulated that Mr. Jones was to return her vehicle by 11:00 p.m. She testified that Mr. Jones returned her vehicle at 11:05 p.m. and she saw Mr. Jones enter into his apartment. Ms. Beaulieu then went to bed. [ 104 ] She told me she could hear her daughter and Mr. Jones arguing in their apartment during the late evening on January 24 and early morning of January 25, 2016, and that she called down to their apartment 10 times to tell them to be quiet. She said Mr.

Jones answered the phone once and according to Ms. Beaulieu he did not sound angry, which is puzzling, since according to her, he had been engaged in a hours-long argument with Ms. Rioux, and Ms. Beaulieu had repeatedly called down to tell them to stop fighting. Ms. Beaulieu confirmed that she called the police at 2:30 a.m., January 25, 2016, because Mr. Jones and Ms. Rioux would not stop fighting. [ 105 ] In cross-examination, Ms. Beaulieu testified that she only wanted a licenced driver to drive her vehicle, and that Mr. Jones and Ms. Rioux had told her Mr. Jones had a driver's licence. In fact, Mr.

Jones was a prohibited driver. [ 106 ] Also in cross-examination Ms. Beaulieu testified that Mr. Jones' right hand was so incapacitated that, while washing dishes, he was unable to pick up dishes with his right hand. DISCUSSION AND ANALYSIS [ 107 ] In reaching my decision in this case, I must be guided in my analysis by the Supreme Court of Canada's decision in R. v. W.(D.) . The Supreme Court of Canada's decision in R. v. W.(D.) provides guidance to judges who are analyzing the evidence in a trial where the accused testifies. [ 108 ] The three-stage analysis in R. v.

W.(D.) is as follows. [ 109 ] First, if I accept the evidence of the accused, then I must acquit him. [ 110 ] Second, if I do not accept the evidence of the accused, but his evidence nonetheless raises a reasonable doubt in the Crown's case, then I must acquit him. [ 111 ] Third, if I reject the evidence of the accused and his evidence does not raise a reasonable doubt, then I must consider all of the evidence at trial to determine if the Crown has proven its case beyond a reasonable doubt.

If the whole of the evidence does not reach that threshold, then I must acquit the accused. [ 112 ] A fourth consideration has made its way into what is commonly referred to as the W.(D.) analysis, and that fourth consideration is this: if I conclude that I do not know whose evidence to believe, then I must acquit the accused. A. The Position of the Crown [ 113 ] Mr. Swartz for the Crown says that the Crown has met its burden in this case. He says that Mr. Haslam's evidence, coupled with Ms. Capot Blanc's evidence, and further coupled with Mr. Haslam's extensive injuries, establishes that Mr.

Jones severely assaulted Mr. Haslam at some point in the late hours of January 24 or early morning hours of January 25, 2016. [ 114 ] Mr. Swartz says the Crown's case is further supported by the uncontradicted evidence of the phone call from Mr. Jones to Mr. St. Amand asking Mr. St. Amand to check on Mr. Haslam on January 25, 2016 because Mr. Jones feared he had left Mr. Haslam dead in his apartment. B. The Position of the Defence [ 115 ] Mr. Jones argues that the evidence of Mr. Haslam and Mr. St.

Amand is frail due to their alcoholism, and also due to the incorrect or false statements they gave to the police in relation to the Prior Incident or the events leading to these charges. [ 116 ] Mr. Jones also argues, based on the evidence of Ms. Rioux and Ms. Beaulieu, that he has an alibi. In other words, he is not guilty of assaulting Mr. Haslam because he was at home, arguing with Ms. Rioux for about four hours, from 11:00 p.m. January 24, 2016 to 3:00 a.m. January 25, 2016. [ 117 ] Finally, while not advanced as an argument before me, I infer that Mr.

Jones takes the position that he could not have inflicted the injuries sustained by Mr. Haslam due to his severely limited use of his right hand.

C. Discussion [ 118 ] The first issue I must resolve is: Could Mr. Jones have been present in Mr. Haslam's apartment and inflicted the injuries on Mr. Haslam given all the evidence I have heard in this trial? [ 119 ] I start my analysis of this issue by stating the obvious. Mr. Jones was present inside Mr. Haslam's apartment on the night in question. There is no doubt about that. [ 120 ] Mr. Haslam and Ms. Capot Blanc both testified that there was a physical confrontation between Mr. Haslam and Mr.

Jones in the late evening of January 24, 2016, or early morning hours of January 25, 2016. [ 121 ] I am left in no doubt that the physical altercation took place. Ms. Capot Blanc testified she cleaned up the blood on the floor of Mr. Haslam's apartment and a blood-soaked towel was found by the police in Mr. Haslam's bathtub. [ 122 ] Ms. Capot Blanc testified that she left Mr. Haslam's apartment while the men were fighting because she did not like watching the violence. When she left Mr. Haslam's apartment, she said the two men were on the floor fighting. Mr. Haslam said that Mr.

Jones was on top of him on the floor, striking him in the face, and then proceeded to choke him unconscious with a towel. [ 123 ] There is no doubt that Mr. Haslam sustained severe injuries to his face, head and neck, consistent with the assault as described by Mr. Haslam. [ 124 ] Mr. Jones, while admitting he was in Mr. Haslam's apartment during the evening of January 24, 2016, denied there was any physical altercation between him and Mr. Haslam beyond Mr. Haslam trying to physically attack Mr. Jones and Mr. Jones pushing Mr. Haslam away. As I said earlier, Mr. Jones described Mr.

Haslam as something akin to a pesky mosquito. [ 125 ] Mr. Jones denied that he ever left the chair he had been sitting in, and when Mr. Haslam became angry that Ms. Capot Blanc flashed Mr. Jones her naked breasts, and that Mr. Jones was going to charge Mr. Haslam for anymore tattoo work, Mr. Jones decided to put on his shoes and leave Mr. Haslam's apartment. Mr. Jones flatly denied any physical altercation between himself and Mr. Haslam that could have left Mr. Haslam with the injuries he sustained. [ 126 ] I reject Mr. Jones' denial of being involved in the physical altercation that left Mr.

Haslam severely injured. I reject Mr. Jones' denial for the following reasons. [ 127 ] First, the Crown has adduced evidence that makes for a very compelling case. Mr. Haslam's evidence is compelling, and while I accept that some aspects of his evidence have frailties due to his alcohol consumption, much of his evidence is not in dispute. The fact is that Mr. Haslam, Ms. Capot Blanc, and Mr. Jones were all in Mr. Haslam's apartment late in the evening of January 24, 2016. The fact is Ms. Capot Blanc observed a physical altercation between Mr. Jones and Mr. Haslam. The fact is Mr.

Haslam regained consciousness on the morning of January 25th with severe injuries to his head, face and neck. [ 128 ] Ms. Capot Blanc's evidence also had some frailties due to her alcohol consumption, but her evidence is broadly consistent with Mr. Haslam's account of what happened in his apartment the evening of January 24, 2016. Her evidence is also consistent with some external evidence, namely, she said she cleaned blood up off the floor of Mr. Haslam's apartment and, indeed, the photos show bloodstains on the apartment floor, and there was blood on the towel discovered in Mr.

Haslam's bathtub. [ 129 ] As I have indicated, Mr. Jones denies assaulting Mr. Haslam and denies any responsibility for Mr. Haslam's injuries, and I reject that denial. To accept Mr. Jones' denial would mean one of two things happened to Mr. Haslam. First, Mr. Haslam would have to have self-inflicted his injuries by falling down due to his intoxication and striking the floor or some other solid surface. I accept that Mr. Haslam has a history of falling down when intoxicated and seriously injuring himself. I also accept that Mr.

Haslam has been mistaken in the past, and was mistaken in his evidence before me as to the location where he has fallen and seriously injured himself. [ 130 ] In my view, Mr. Haslam's confusion over the location of his prior falls does not detract from the reliability of his evidence. The fact is that he fell, and he recalls falling. The fact is that he seriously injured himself, and he recalls and admits to those injuries, which is an admission that does not assist Mr. Haslam, but it is the truth. [ 131 ] I cannot accept that Mr. Haslam's injuries were self-inflicted by falling down in a drunken stupor.

His injuries are simply too extensive and severe to reach that conclusion. His earrings were ripped out of his ears, which I conclude would not be possible from an unstable drunken man falling to the ground. [ 132 ] To accept that Mr. Haslam's injuries were self-inflicted by falling down, I would have to accept that Mr. Haslam fell multiple times and, by falling, he seriously struck his head on both sides. He struck his mouth, his ears, both eyes, and all around the front of his neck.

There are simply too many injuries all over his face, head and neck to be attributed to self-inflicted falls to the ground. [ 133 ] I also do not accept that Ms. Capot Blanc would stand idly by and not stop Mr. Haslam from repeatedly falling and seriously injuring himself. [ 134 ] Lastly, there is no evidence before me that Mr. Haslam's blood was found on multiple solid surfaces around his apartment. [ 135 ] The second theory, if I were to accept Mr. Jones' denial, is that some undetermined person happened upon Mr. Haslam's apartment, found his door unlocked, found Mr.

Haslam unconscious or asleep, and proceeded to viciously and savagely beat Mr. Haslam in his apartment. Such a theory is pure speculation and is inconsistent with Ms. Capot Blanc's evidence that she cleaned up Mr. Haslam's blood in the aftermath of the physical altercation between Mr. Jones and Mr. Haslam. [ 136 ] Accordingly, I reject the notion that Mr. Haslam's injuries were the result of something or someone other than Mr. Jones.

[ 137 ] Another significant piece of evidence in the Crown's case is the evidence of Mr. St. Amand about the phone call he received from Mr. Jones the morning of January 25, 2016. During that phone call, Mr. Jones acknowledged that he feared he might have killed Mr. Haslam the night before. Mr. Jones did not deny making that phone call or the content of the phone call as recounted by Kenny St. Amand. [ 138 ] It is further significant that, at the time, Mr. Jones and Mr. St. Amand were friends. [ 139 ] Before leaving the issue of Mr. Jones' denial, I must address the alibi evidence presented by Ms. Rioux and Ms.

Beaulieu. Both women testified that at some point after 10:00 p.m., Mr. Jones came home from walking his dog and borrowed Ms. Beaulieu's vehicle to run an errand. Ms. Rioux testified that Mr. Jones told her he was going to help his cousin, which in fact was a lie. [ 140 ] Both Ms. Rioux and Ms. Beaulieu testified that Mr. Jones returned with the vehicle by 11:00 p.m., or very shortly thereafter, which is when he was supposed to return the vehicle. Ms. Rioux testified that, upon his return home, Mr. Jones was calm, he had a smell of alcohol, and he then admitted he had been at Mr. Haslam's apartment with Mr.

Haslam and Ms. Capot Blanc, where he had a few drinks. [ 141 ] This revelation that Mr. Jones had spent a very short time in the presence of Ms. Capot Blanc upset Ms. Rioux, and she and Mr. Jones began an argument. Ms. Beaulieu confirmed that Mr. Jones and her daughter were arguing and, with such intensity, that ultimately Ms. Beaulieu called the police. When the police arrived, Ms. Rioux told the police that Mr. Jones was not at home in their apartment. Before me, Ms. Rioux told me that she lied to the police and, in fact, Mr. Jones was present in the apartment. [ 142 ] While I accept that Mr. Jones and Ms.

Rioux had an argument that night, I do not accept the evidence of Ms. Rioux and Ms. Beaulieu as to the timing of this argument. Further, why the insistence that Ms. Beaulieu's vehicle be returned by 11:00 p.m.? There is nothing in the evidence addressing why the vehicle had to be back precisely at 11:00 p.m. [ 143 ] While the timing is important, the evidence of Ms. Rioux and Ms. Beaulieu cannot be reconciled with Ms. Capot Blanc's evidence that there was a physical altercation in Mr. Haslam's apartment between Mr. Jones and Mr. Haslam. She cleaned up Mr. Haslam's blood and she and Mr.

Jones left together. [ 144 ] What makes sense to me is that Ms. Rioux and Mr. Jones fought long and hard when he came home later than expected, only to reveal that he had spent time that night in the presence of Ms. Capot Blanc. If, as Mr. Jones says, he borrowed the car, had two sips out of the vodka bottle, and returned the car on time, then why a four-hour argument that led to the police being called. It makes no sense to me. [ 145 ] The other concern I have with the evidence of Ms. Rioux and Ms. Beaulieu is their evidence regarding Mr.

Jones' limited use of his right hand following the injury he sustained breaking the front window of Mr. St. Amand's apartment. Both Ms. Rioux and Ms. Beaulieu testified that Mr. Jones had very little use of his right hand, and he could not make a fist or grasp plates or utensils with his right hand following the injury he sustained in the Prior Incident. [ 146 ] The fact of the matter is their evidence in that regard is not accurate. In evidence before me, the Crown led some digital video surveillance of Mr. Jones in custody at the Fort Nelson RCMP detachment following his arrest on these charges.

At various points on the videos, Mr. Jones uses his right hand to grip his clothing, to adjust his clothing. At various points on the video, Mr. Jones uses his right hand to grip a mattress and lay it on the ground for his bedding, he uses his right hand to grip a knife and cut his food, and while at times grainy, in my review of the video exhibits, there are times when Mr. Jones appears to be gripping his right hand into a fist. [ 147 ] While I accept that Mr. Jones suffered a serious injury to his right hand, I do not accept Ms. Rioux's and Ms. Beaulieu's evidence that Mr.

Jones' right hand was so disabled he could not cut his food, grasp things, or make a fist with his right hand. [ 148 ] Accordingly, while I accept Ms. Rioux's and Ms. Beaulieu's evidence of the verbal argument between Mr. Jones and Ms. Rioux, either late on January 24 or early in the morning hours of January 25, 2016, I do not accept their evidence that Mr. Jones arrived home precisely on time at 11:00 p.m. and never left his apartment. [ 149 ] One last comment I would make with respect to Mr. Jones' alibi defence is that while Mr.

Jones carries no burden in this case, having chosen to testify, I would have thought that he would have given me some evidence to confirm his alibi. But he did not. It may be that Mr. Jones was content to rest his alibi defence on the evidence of Ms. Rioux and Ms. Beaulieu and not confirm himself the timing and details of his fight with Ms. Rioux, and that is Mr. Jones' choice to make. D. Mr. Jones’ Evidence Regarding His Use of His Right Hand [ 150 ] I now wish to address Mr. Jones' evidence regarding his lack of the use of his right hand following the Prior Incident. Mr.

Jones, in evidence consistent with the evidence of Ms. Rioux and Ms. Beaulieu, insisted that his right hand was so disabled by the injury he sustained in the Prior Incident that he was not able to grasp a kitchen knife in his right hand to cut his food. He maintained that was the case even in the face of the video rebuttal evidence called by the Crown after Mr. Jones closed his case. Mr.

Jones, after viewing the video in court from the prisoner's box, insisted that the video confirmed he could not use his right hand to cut his food. [ 151 ] The difficulty is that the video rebuttal evidence clearly and plainly showed Mr. Jones cutting his food during one meal using his right hand. When the video was replayed for Mr. Jones during his cross-examination on the rebuttal evidence, Mr. Jones had to concede that in fact his evidence that he could not use his right hand to cut his food was not accurate.

His only response was that when he viewed the video rebuttal evidence from the prisoner's box, he was too far away and could not clearly see the video. [ 152 ] While that may be true, the fact is that Mr. Jones' right hand was not as disabled as he, Ms. Rioux and Ms. Beaulieu would have me believe. It is not clear to me why all three would give me inaccurate and, frankly, untruthful evidence on this point. If the goal was to try and persuade me that Mr. Jones's disabled right hand meant he was physically incapable of inflicting the injuries Mr. Haslam sustained, their efforts failed.

The video evidence belies their inaccurate and false evidence about Mr. Jones' disabled right hand and

calls into question the reliability of their evidence generally. [ 153 ] One last comment I wish to make regarding Mr. Jones' evidence is his insistence that he was not angry with Mr. Haslam for calling the police following the Prior Incident. Mr. Jones claimed in his evidence at trial before me that he had no reason to be upset with Mr. Haslam, but clearly Mr. Jones did have reason to be upset with Mr. Haslam. Mr. Haslam's call to the police led to Mr. Jones being charged with mischief, when in fact, Mr. Jones slipped on the frosty deck and accidentally put his right hand through Mr. St.

Amand's apartment window. Mr. Jones sustained a serious injury in this accidental fall, yet he was being charged with a criminal offence. [ 154 ] Any person in Mr. Jones' circumstances in that situation would be upset, and deservedly so. But Mr. Jones testified before me that Mr. Haslam was not the target of his anger; rather, it was the police. In fact, Mr. Jones filed a formal complaint against the police. [ 155 ] It is not clear to me why Mr. Jones would be upset with the police just doing their job. Any reasonable person present in the St.

Amand/Thrasher apartment on November 15, 2015 would reach the conclusion that Mr. Jones deliberately smashed the front window of the apartment. Calling the police and the police investigating the complaint is perfectly reasonable. [ 156 ] In my view, Mr. Jones' considerable efforts, in his evidence before me, to persuade me he had no ill feelings towards Mr. Haslam and, in fact, his anger was directed towards the RCMP, does not ring true. E.

The Timing Issue [ 157 ] The final issue I wish to address is the varied and at times inconsistent evidence as to the time when events transpired on January 24 and 25, 2016. [ 158 ] Many of the people who testified in this trial were intoxicated during the evening of January 24, 2016.

I find that their attention would be captured more by the events unfolding that night than the precise timing as to exactly when the events occurred. [ 159 ] In short, I find that any inconsistency in the evidence as to the precise timing of the events on January 24 and 25, 2016 does not raise a reasonable doubt in the case presented by the Crown. CONCLUSION [ 160 ] In his final submissions, Mr. Swartz, on behalf of the Crown, invited me to consider this case as a case of assault causing bodily harm rather than attempted murder.

I am satisfied, for the reasons I have given, the Crown has proven beyond a reasonable doubt that Mr. Jones is guilty of the charge of assaulting Mr. Haslam on January 24, and in doing so, caused Mr. Haslam bodily harm. [ 161 ] Accordingly, Mr. Jones, if you could stand please. [ 162 ] For those reasons, Mr. Jones, I find you not guilty of the attempted murder of Mr. Haslam, but I find you guilty of assault causing bodily harm of Mr. Haslam on January 24, 2016. [ 163 ] I find you not guilty of Count 2 on Information 11870, a charge of robbing Mr.

Haslam, and I find you not guilty of the charge in Count 3 on that same Information. [REASONS FOR JUDGMENT CONCLUDED]