R. v. K.S., 2021 ONCJ 396

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. K.S., 2021 ONCJ 396 DATE: February 16, 2021 19 Y 190800 & 19 Y 190548 BETWEEN: HER MAJESTY THE QUEEN — AND — K.S., a young person Before Justice B. Weagant Heard on: July 8, 9; 20, 21, 22, 23; 27, 28, 29, 2019; August 10, 11, 12, 13; 24, 25, 2019; September 3, and 9, 2019; October 22, 2019; November 20, 2019 and December 11, 2019. Reasons for Judgment released on February 16, 2021

Mr. Robert Wright and Mr. Craig Brannagan ............................ counsel for the Crown Ms. Althea Coke.................................................................... counsel for the young person WEAGANT, B. J.: [ 1 ] K.S. stands charged with three counts of common assault, aggravated assault, assault with a weapon, assisting Jacob A. for the purpose of enabling him to escape, and second-degree murder of F.N. All are alleged to have occurred in the City of Toronto on or about the 31 st day of October.

K.S., with a date of birth of […], 2004, was 15 years at the time of the alleged offences. [ 2 ] For what I say below, I am making findings of guilt on the following charges: assault on A.D. (count 1), assault on F.K. (count 2), assault with a weapon and aggravated assault on M.O., a common assault on M.O. (counts 3, 4 and 5), and assisting Jacob A. for the purpose of enabling him to escape (count 7). [ 3 ] I am acquitting on the charge of second-degree murder (count 6).

Background [ 4 ] On October 31, 2019, C.R. and his twin brother rented the Theta Delta Chi fraternity house, situated at 22 Madison Avenue in downtown Toronto. They rented the premises so that they could throw a birthday party for themselves. A general announcement went out on social media advertising the event, thus ensuring that the ultimate size of the participating crowd would far outnumber the hosts’ personal social circles. [ 5 ] October 31 is party night in and around the University of Toronto’s downtown campus.

The party-goers looking for a venue, according to the testimony I heard, seemed to have choice in this neighborhood. By the time the party started at 22 Madison, there was a crowd of people outside of the building waiting to be admitted. The price of admission was $20.00 for males and $15.00 for females (before midnight). There were three bouncers and cursory checks at the front door to ensure no one was bringing in glass bottles or weapons.

Because there was no cash bar at the event, some patrons who wanted to imbibe met at other locations before going to the party, a practice called pre-drinking (or “pre-ing” in the lingo of one witness). This was true for the bulk of the witnesses I heard from. Patrons could also bring plastic bottles with alcohol. [ 6 ] Next door to the frat house is a small boutique hotel and a popular pub called the Madison.

Between the frat party and the pub, there was a large gathering of people both inside and out of buildings. [ 7 ] All the charges in this case relate to a violent rampage by one of the frat party attendees – Jacob. By the time his rampage was over, C.R. sustained a gash to his upper torso and hand, F.K. received a stab wound to his arm and a slash wound to his hand, X.B. was stabbed in the back in two places and in his arm, J.S.

J.S. was stabbed in his left leg, M.O. was slashed in his hand, stabbed twice in his leg and stabbed in his stomach, M.M. was stabbed in the right bicep, and L.C. received a bite wound to his leg. [ 8 ] Jacob, himself, sustained a stab wound to his leg. As he was the only person wielding a weapon in his various encounters, I infer his wound was self-inflicted. The accused young person, K.S., also sustained a knife wound to her wrist. [ 9 ] F.N. was stabbed in his chest. He succumbed to his wounds on November 2.

His heart had been punctured. [ 10 ] Jacob faces a rash of charges, including murder, in the adult court. [ 11 ] The accused young person, K.S., accompanied Jacob to the party that evening. She was with, or near, Jacob for his entire rampage. At times she was observed participating in the violence. The characterization of her participation in each instance is the truth- seeking function for this Court: was she protecting her male friend, or was she aiding and abetting his violence?

Procedural history of the trial [ 12 ] At the commencement of the trial, several orders were sought by the Crown and resisted by the Defence. First, the Crown had a list of witnesses who wanted to appear remotely. I allowed the application in part, on consent. For reasons given on July 20, the remainder of the request was dismissed. The argument for the Crown was, put simply, that the current pandemic should presumptively entitle any witness who wants to give testimony remotely to do so, the health precautions taken by the province inside the courthouse notwithstanding.

For obvious reasons relating to privacy interests, the Court cannot delve into a person’s personal health concerns and no evidence in this regard formed part of the application. However, in hindsight, evidence could have been called about the individual safety practices of a witness, which evidence might tend to show whether the health concern is real and not simply a witness not wanting to be bothered to appear in court when they can communicate with the court over Zoom quite nicely and conveniently from his/her living room.

That this approach may be of assistance in deciding these applications in the future became clear to me when the very first witness I heard from (part of the original application, but subsequently abandoned his request) recalled a certain event happening by using his very recent trip Wassauga Beach as a point of reference. He went to the beach with one of the other witnesses in the trial, they met another friend and if I understand it correctly, shared a motel room. [ 13 ] The second application was to have certain videos and a video compilation admitted into evidence. Videos are presumptively

admissible (as both real, and to a certain extent, testimonial evidence). Subject to evidence confirming authentication, I admitted the videos as lettered exhibits. At the end of the trial I admitted the same videos as numbered exhibits, the videos being authenticated by the videographer, the editor (on the compilation video) or by eyewitnesses confirming the accuracy of the video.

Because the videos were of varying quality, I invited the Defence to make argument about the weight I should accord any video on which the Crown seeks to rely to prove a fact in issue. [ 14 ] Last, the Crown sought to have morgue images of F.N. admitted, opposed by the Defence. As this was a judge-alone trial, the prejudice arising from the potentially inflammatory nature of the photos is of reduced significance. [ 15 ] The photos have probative value. The photos tend to corroborate the theories put forward by the parties as to the timing of events.

It is the submission of the Crown that the location of the wounds directly correlates to motions visible on video footage that was to be produced. The nature and extent of the wounds visible in the photo, may also be relevant to confirming that the knife seized by police from K.S. was the murder weapon. [ 16 ] I admitted the photos as being more probative than prejudicial. [ 17 ] At the end of the Crown’s case, the Defence moved for a directed verdict on all counts. On September 9, in written reasons, I dismissed this motion and asked the Defence to present its case. The Defence called no witnesses.

The events of October 31 [ 18 ] After hearing from over 20 witnesses and observing the video footage, the Court is in a position to make the necessary findings of fact that could support the ultimate decision about guilt or innocence on any single charge. [ 19 ] I must say at the beginning, that events were remembered differently by different witnesses. This may be due to the passage of time, or because of observational impairment by alcohol or drugs at the time. In some cases of discrepancy, video footage settles the matter completely.

In other contexts, the inferences urged by the Crown are inconclusive on the evidence I have. [ 20 ] The majority of witnesses I heard from were impaired by alcohol that evening. Some were impaired to a large degree. This comes as no surprise, given this was a very large frat-house party attended predominantly by millennial and post-millennial party-goers in downtown Toronto. I caution myself to scrutinize testimony for reliability in this regard.

However, there is enough common ground among the different testimonies, occasionally endorsed by video, to allow me to construct a narrative that contains indisputable facts. Inside the fraternity house [ 21 ] C.R. came late to his own party. Although the event was called for 10:00, the door didn’t start admitting patrons till after C.R. arrived, which was around 10:30. C.R. came in costume – he was dressed as a shirtless male playboy bunny (his description). C.R. had known Jacob for 5 years. He received a call from Jacob before the party, with Jacob asking if the admission fee could we waived for Jacob.

Because it was a co-sponsored event, C.R. denied the request. When Jacob arrived with his friends, C.R. does not recall recognizing any of the friends except E.M. When that group arrived, there was a ‘fuss’ at the door regarding the entrance fee. Whatever led that ‘fuss’ to being resolved, the door person asked A.D. to take a glass bottle of alcohol away from Jacob.

A.D. was providing general assistance to the party at the door (by checking through women’s purses for alcohol or other contraband) and by guarding the stairs to the second floor, which was off limits to the party goers as the bedrooms of the resident frat members were there. After A.D. took the bottle she was pushed against the wall by Jacob. [ 22 ] Jacob was wearing ‘grills’ on his teeth that evening and during the ensuing fracas, they were either stolen or he lost them. [ 23 ] C.R. spoke with Jacob on the ground floor and noted that he was more intoxicated than he had been when they spoke earlier.

C.R. went upstairs and subsequently heard commotion below. When he went to the top of the stairs, he noticed Jacob trying to get to the second floor and a security person holding him back. C.R. decided to defuse the situation. C.R. seemed to recall that Jacob wanted to get to the second floor to place a knapsack for safe keeping. According to C.R., Jacob didn’t want a problem and “didn’t want to stab anybody”. [ 24 ] On the landing between the first and second floor C.R. tried to calm Jacob down. However, it appeared that Jacob was now completely “fucked up”. C.R. had not seen Jacob like this before.

C.R. tried to take him downstairs again, but Jacob pulled a knife. Jacob was pushed to the main floor and ended up on the ground. C.R. incurred a slash across his chest and his fingers but doesn’t actually remember how or when it happened. [ 25 ] The events on the main floor after Jacob got to his feet are largely caught on video, shot by the witness A.K. The video shows a melee with Jacob being at the centre of it all. K.S.’s presence was identified in the video by C.R. and A.D. when it was shown in Court. K.S. is part of the melee, but it is unclear what role she played.

A.D. testified that it appeared that K.S. was on Jacob’s back, perhaps in an effort to extricate him from the melee. A.D. didn’t want K.S. to be hurt in the male fracas, so she tried to pull K.S. back by putting a hand on her shoulder and tugging, whereupon she was elbowed by K.S., perhaps accidentally. Shortly thereafter, A.D. moved away from the fray. She received a kick to the ribs from K.S. as she turned and left the fray. [ 26 ] A group of males pinned Jacob to the wall and someone took the knife from Jacob’s hand. It was handed to C.R. who handed it off to security.

Where that knife ended up is not known. [ 27 ] A group of males started beating on Jacob and pushing him towards the front door. Jacob, two young women and at least one other person in Jacob’s group were expelled from the party. The door was closed. Outside, Jacob and the two young women were yelling to get back in, with Jacob pounding and kicking on the door. For some reason, perhaps so that someone could leave (J.S.?) the door reopened. Video caught this moment both from the vantage point of someone in the house and from someone outside looking at the

front door. Jacob is seen trying to reenter the house but is pushed and beaten back by people at the party. At one point inside the house, someone reaches over the front line and tries, unsuccessfully, to smash a wine bottle on Jacob’s head. E.M. M. and K.S., identified on the outside video by E.M., were physically involved in this struggle, but it is not clear whether they were trying to pull Jacob back or aid him getting into the house by pushing him. [ 28 ] L.C. was part of the in-house group that tried to keep Jacob and his friends out of the house when the door was reopened.

He testified that he traded punches with Jacob and at some point, Jacob bent over and bit him on the leg. [ 29 ] Once the door was closed again, Jacob resumed his banging on the door. All of the witnesses I heard from that were standing on the lawn and sidewalk area described this as attention-getting commotion. [ 30 ] At this time F.K., president of the fraternity, tried to intervene at the front door by placing himself between Jacob and the door. His attempts to talk Jacob down were unsuccessful and the encounter turned violent.

F.K. describes the scene as one where both young woman (identified as K.S. and E.M.) joined Jacob in punching and hitting. E.M. admitted to spitting on F.K.’s face. She further admitted that around this time she broke a window on the porch in order to gain entry into the house. [ 31 ] During this incident, Jacob pulled a knife and started swinging it at F.K.. F.K. grabbed the knife with his hand (thus, the wound) but let go when the two young women started hitting him on the head. [ 32 ] J.S., on the porch at the time, tried to intervene to stop the knife connecting with F.K..

J.S. grabbed Jacob’s knife hand and threw him to the ground. He then tried to get the knife out of Jacob’s hand. He testified that at this point the assailant’s friends moved in. He remembers being punched a lot but could not provide clear details. J.S. was stabbed in the leg during this portion of the incident. F.K. had a wound to the hand and was stabbed in shoulder. [ 33 ] Both F.K. and J.S. fled the porch. J.S. made it to the Madison Pub where he sought assistance from door security. Ironically, he was denied entry because security thought his blood-soaked jeans were a Halloween costume.

He laid on the ground and elevated his leg. He was given some rudimentary first aid by passersby while he awaited an ambulance. F.K. took himself to hospital in an Uber car. [ 34 ] F.K. testified that a man in a shark costume tried to pull Jacob away from the commotion and managed to push Jacob to the bottom of the stairs. He testified that the two young women immediately attended to Jacob. The man in the shark costume was X.B.. X.B.’s recollection of the events only approximates that of other witnesses. He was very intoxicated that night.

His recollection is that he tried to pull Jacob back from the door, unsuccessfully. When he turned away from Jacob he felt two punches to the back and one to the left arm. He then remembers coming-to on the lawn below the porch. He did not know he had been stabbed, but as he was helped across the street by his friend Shakur, he enquired about the appearance of blood. One of the stabs hit a lung. X.B. spent three days in the hospital as a result. [ 35 ] The senselessness of Jacob’s actions becomes apparent in this incident: X.B. was friends with Jacob and was part of Jacob’s circle once they met up at the party.

Jacob was now indiscriminately attacking people, even his friends [ 36 ] Witness N.H. caught glimpses of the action out front as that is where he was standing. He didn’t have Jacob in his view all of the time. He does remember the two young women with Jacob on the porch and describes the darker of the two throwing her fists around and trying to hit whoever she could. He saw her assault a man believed to be security, by punching him on the chest. F.K.’s costume was a sheriff’s outfit. N.H. remembers Jacob descending the porch with something in his hand. N.H. did not know at this point it was a knife.

N.H. testified that Jacob started confronting people in front of the house who were filming Jacob on their phones. He testified that the two young women joined him on the lawn in front of 22 Madison. [ 37 ] Witness T.H., brother of N.H., had a clearer recollection of what was transpiring on the porch. He describes the young woman identified as K.S., as being as contributor to Jacob for his aggression confrontations. Jacob would come up to people – or as T.H. put it – he would get into the faces of people and ask if they had a problem.

T.H. testified that as Jacob picked fights with people, the dark- haired young woman was hitting people alongside of Jacob. He testified that she would try to get in a punch in Jacob’s confrontations. He testified that he saw X.B. (shark suit) get stabbed and off the porch he saw the guy in the pink hoodie get stabbed. [ 38 ] Witness M.O. came to the event with two other witnesses – M.M. and L.M. He testified that the man in the shark costume was pushed down the stairs by Jacob. M.O. went over to help the man in the shark costume who was on the ground and Jacob confronted him.

He testified that K.S. was beside Jacob for the confrontation. The confrontation got physical during ‘trash-talking’ – he testified that K.S. started punching M.O. in the face. He testified that Jacob kept coming at him and he kept pushing him off with punches. During this incident M.O. was stabbed in three places and had a serious gash to his hand. He doesn’t remember realizing he had been stabbed until later. This fact – that he didn’t appreciate he was being stabbed – is common to the testimony of most of Jacob’s victims. None realized that the punches they were feeling were really stabs.

At some point, M.M. and L.M. jumped into the fray. M.O. testified that the female (who fits the description of K.S.) backed away, but every once in a while, while cheering Jacob on, she would jump into the fray and swing her fists and then jump back out. M.M. and L.M. managed to extricate M.O. from this fight. They escorted him across the street. The young woman who now identified as K.S. came up behind them and punched M.O. on the back of the head and neck at least five times. [ 39 ] M.M. realized that Jacob had a knife during that incident.

He tried to get between M.O. and Jacob at a point when Jacob was on his knees. M.M. testified that is when he got stabbed in the arm. He could not testify as to what the young woman now identified as K.S. was doing while this was happening, but he remembers her yelling profanities and telling them to go away. He testified that she got involved at the end and hit him in the shoulder and face area.

He also recalls someone from the crowd yelling that there was a knife. [ 40 ] L.M.’s testimony confirmed the confrontation with the man in the sheriff’s outfit (F.K.), the confrontation with the man in the shark outfit (X.B.) and the assault on M.O. as he tried to cross the street. L.M. testified that he grabbed the punching arm of the young woman who was hitting M.O. on the back of the head. [ 41 ] A.H. and F.Kh. accompanied F.N. to the party. They had previously attended two other locations in the neighborhood, but

rejected one because it was some type of event (not a party) and the other because the admission charge was too much. When they arrived, none had consumed alcohol, although F.Kh. brought some Hennessy with him to drink at the party. F.Kh. was driving the vehicle which brought the young men to Madison. They parked in a lot near Bloor Street and walked towards the party. Their testimony confirms the commotion on the porch; from their vantage point on sidewalk and lawn, it appeared that the aggression started on the porch (described F.K.) and then the aggression was brought down to the lawn area.

Both of these witnesses describe the K.S.-looking young woman as being physical with anyone who engaged with Jacob. When Jacob came down to the lawn, F.N. was in conversation with two friends he knew in the crowd. As Jacob approached them, the three started yelling at Jacob (trash-talk) and F.N. challenged Jacob to a fight across the street. At this point, someone from the crowd yelled that “he had a knife”. Everyone backed away from Jacob and F.N. started backing away quickly towards the other side of the street. Jacob and the young woman who fits the description of K.S. followed. Then F.Kh. followed.

F.Kh. testified that he saw the knife in Jacob’s hand as he crossed the street. A.H. did not see the knife at this point. [ 42 ] Common to the evidence of both A.H. and F.Kh. is the sequence of events across the street. F.N. ended up with his back to a wall at the mouth of a lane. Beside him were garbage cans. F.N. picked up a garbage can and moved towards Jacob, who was in front of him, and threw the can in the direction of Jacob. A.H. could not see whether it hit Jacob. F.Kh. testified that F.N. pulled back at the last second and the can hit the ground in front of or just to the side of Jacob.

F.Kh. testified this happened because the girl who fits the description of K. stepped towards Jacob just as the can was to be released. F.Kh. surmised that this caused F.N. to pull back a bit. Jacob then moved to F.N. and F.N. grabbed him. This was witnessed by A.H., who also testified he could see the knife. F.Kh. observed one blow to the chest of F.N. by Jacob, but we now know that there was another because of the number of wounds. F.N. then pushed Jacob away and used the distance between them to make an escape.

The grabbing and blow to the chest is visible on video. [ 43 ] F.N. started running south on Madison towards the parking lot, pursued by Jacob and then K.S. On the video, the chase is clearly seen. Someone – most likely K.S. – is heard yelling “pussy” during the chase. Jacob fell during the chase. A.H. testified that it was the same young woman who had been with him at the scene that helped him up. [ 44 ] Jacob and that young woman eventually returned to an area near the Madison frat house. [ 45 ] Detective constable Natalia Pansieri arrived on scene around this time.

Someone directed her attention to Jacob by saying “it’s that guy”. By the time Officer Pansieri reached Jacob, he was on the ground and she could see blood. At that point, she thought he was a victim. Officer Pansieri grew more suspicious as other reports came in. She accompanied K.S. and Jacob to the hospital in the ambulance. [ 46 ] Officer Pansieri seized the knife, which she found in K.S.’s coat pocket. [ 47 ] Blood on the knife was identified by forensic services as being that of M.O. and F.N. All other known samples were excluded.

The Relevant Evidence on each of the Charges 1) Assault on A.D. [ 48 ] This allegation arises from the events occurring in the main front room near the stairway to the second floor. During the rush on Jacob to wrest the knife from his hand, a young woman entered the fray. A.D. attempted to extricate the young woman from the melee by putting a hand on the young woman’s shoulder and pulling. The young woman elbowed A.D. at this time, perhaps instinctively. Whatever the explanation, the elbowing was described by A.D. as an accident.

However, after A.D. backed away from the melee, the young woman turned and kicked A.D. in the ribs. This occurred a short while after the hand-to-shoulder and elbowing contact. The young woman had turned around and had to advance slightly in order to do this. Subsequently, the young woman ripped A.D.’s stockings. [ 49 ] The gratuitous kick was not a direct response to anything that was happening at the time, and was an aggressive physical manoeuvre in the young woman’s participation in the melee.

It could not be said that it was in aid of protecting Jacob, because Jacob was not part of this encounter and no aggressive action was taken by A.D. against Jacob. [ 50 ] The only issue is whether there has been identification of K.S. as the assailant in this incident. The video of A.K. caught an overview of what transpired in those moments. Although his video did not catch the actual assault on A.D., C.R. and E.M.. both identified the woman in the video next to A.D. as K.S. A.D. herself said there were only two females present at this instant, herself and the assailant.

Although A.D. did not see the face of the kicker, there was only one female near her wearing fishnet stockings. It is clear that from the video that the two females at this scene were A.D. and K.S. [ 51 ] I will make a finding of guilt on the charge of common assault. 2) Assault on F.K. [ 52 ] Portions of the interaction between F.K. and Jacob are caught on video. K.S. and E.M. have been identified as the young women with Jacob outside of the door at the confrontation with F.K., J.S. and F.Kh. all describe a young woman like K. being present and participating in the assault on F.K.

E.M.. admitted in testimony that she was the one that spat on F.K when he tried to come between Jacob and the door. F.K. said that both girls hit him in the head and this was confirmed in J.S.’s testimony. F.Kh. describes the female that he saw hitting F.K. using a similar description given by all of the ‘light-skinned’, ‘curly’ ‘dark haired’ female in the ‘bunny’ costume. E.M., the only other female participating in the assault on F.K., is white with blond hair that was up in a bun. [ 53 ] N.H. described the two females with Jacob on the porch. He testified that in his view one of the females was more aggressive

than the other and then he describes K.S. N.H. testified that he saw E.M. break a window. [ 54 ] E.M. did not remember K.S.’s physical involvement with F.K. However, she did identify K.S. and Jacob in the video of the porch around the time of this incident. While I believe that many observations by witnesses in this trial need to be scrutinized for reliability, E.M.’s testimony must also be scrutinized for credibility. She has a motive to forget or mislead. She spat at F.K. and broke a window in order to further Jacob’s plan to get back in the party.

It is clear that she, too, participated as one of Jacob’s volunteer soldiers in this endeavour. Her friend, K.S., was charged as being a party to seriously violent attacks because of her contributions to Jacob’s violent encounters. Thus, it is in E.M.’s interest to forget huge chunks of the incident at the door, especially the fact that a knife was drawn, used on two people and seen by others (yet she testified she has absolutely no recollection of this). E.M. admitted her own involvement but has no memory of anything else. She testified that the real trouble started when F.K. put his hand on Jacob’s throat.

She also seems to remember seeing blood on Jacob’s pants. [ 55 ] I cannot infer that K.S.’s assault on F.K. was in the defence of Jacob At the very time she was striking F.K., he was trying to ward off Jacob’s arm that held a knife. That knife went on to stab F.K. If anyone’s actions were disproportionately aggressive here, it was those of Jacob. This becomes clear when I reviewed the testimony of J.S., who also was stabbed in this incident.

He moved in when he saw the knife drawn in order to protect F.K. and says that is when Jacob’s friends moved in. [ 56 ] I am making a finding of guilt on the charge of assault on F.K. Charges 3 to 5: assault, assault with a weapon and aggravated assault on M.O. [ 57 ] T.H. places K.S. on lawn in front of the porch when the guy in the pink hoody was being stabbed in the stomach. He only remembers K.S. “trying to hit people as this was happening”. [ 58 ] M.O. saw the guy in the shark costume (X.B.) get pushed down the stairs.

Although he didn’t actually see the push, he put the pieces together from who was on the porch and the fact that Jacob was towering over X.B. on the ground. M.O. moved in to help him up and Jacob started verbally confronting M.O. He testified that the young woman who fits the description of K.S. was right beside Jacob. After Jacob started “trash talking” to M.O., K.S. started punching M.O. in the face. M.O. raised his hands to ward her off. M.O. testified that Jacob kept coming at him but that M.O. kept pushing him off and then punched him. M.O. did not see a knife and did not realize he had been cut and stabbed.

When M.M. and L.M. moved in the female had stepped back. M.O. testified he ‘thinks’ she was cheering Jacob on and every once in a while she’d jump in, take a swing and then jump back out. Jacob fell down and L.M. and M.M. and M.O. tried to keep him there. M.O. figured out later that this was when he must have been stabbed twice in the leg. L.M. and M.M. started to escort M.O. across the street. K.S. followed and started punching M.O. on the back of the head. L.M. got her off him. He remembers at least 5 blows to head and neck.

In his evidence, L.M. confirmed this assault as M.O. headed across the street. [ 59 ] M.M. does not remember where the young female who fits the description of K.S. was during the incident at the bottom of the porch stairs, but does recall she got involved ‘near the end’ and hit him in the shoulder and face area.

He remembers her yelling at them to go away. [ 60 ] There is no doubt in my mind that the young woman involved in the incident on the lawn is the same young woman on the porch and the same young woman involved in the de-knifing episode inside the house: K.S. [ 61 ] It was implicitly conceded by the Crown in submissions, that at times a person’s behaviour could be variously interpreted as self- protective, protective of others, peacekeeping-oriented, or aiding or abetting the principal actor in his/her aim.

It is the position of the Defence that in all incidents involving K.S.’s physical participation, one reasonable inference that could be drawn in each episode is that she was being protective of Jacob – she was really trying to be a neutralizing influence given Jacob’s obvious impairment. That this is a possible inference is bolstered, somewhat, by the fact that outward appearances of Jacob and K. together suggest they were cultivating, if not already involved in, a romantic relationship.

Inside the house, they were observed engaging in physically romantic behaviour right in front of A.D., who felt compelled to tell them to take it downstairs. Similarly, Officer Pansieri made comparable observations based on the way K.S. was speaking to Jacob in the ambulance on the way to the hospital after the entire episode had completed. [ 62 ] I keep these various possible inferences in mind when reviewing the evidence involving the charges against K.S.

If I cannot say beyond a reasonable doubt that the only inference that can be drawn from the evidence I accept is that K.S. was aiding Jacob, to the exclusion of the other possible inferences, then she is entitled to be acquitted on the charge. [ 63 ] K.S. was in the house and in close physical proximity to Jacob when a knife was removed from the hand of Jacob in a dramatic physical skirmish. She actively participated in the assault on F.K. on the porch where a knife was drawn by Jacob, brandished, and then used to stab two different people.

By the time the action moved to the bottom of the porch stairs, it would be clear to anyone that Jacob was on an indiscriminate campaign to fight with anyone in his way (or that he determined may have hostile thoughts toward him), but certainly anyone who would engage him physically and that Jacob would use a knife in his campaign. [ 64 ] The testimony I heard supports the conclusion that K.S. made the first physical moves towards M.O. She started hitting him in the head area, causing him to raise his hands to protect himself. This made him vulnerable to attack by Jacob, and he was attacked.

Identification is not in issue.

The description by eye witnesses of the girl in the video inside the house, expelled and then seen on the porch creating a commotion with Jacob, then participating in an assault on F.K., then by the side of Jacob during the confrontation with M.O., and the fact that traces of M.O.’s blood were found on her coat, all lead to one inference and one only: K.S. was the only young woman fitting her description beside Jacob for the entirety of his rampage. [ 65 ] To be a party to the attack on M.O., it must be found that K.S. had the specific intent to assist Jacob with the knowledge that Jacob would cause bodily harm.

At the point where K.S. started punching M.O. in the head, she had just participated in an assault on F.K. She had been in close proximity to Jacob as he stabbed three other people. The knife was visible. K.S. would have known it could be used again. Her actions with M.O. made him more vulnerable to an attack by Jacob. M.O. testified that she never ceased throwing punches during the encounter and he recalls her “cheering” Jacob on. It is clear she was assisting Jacob.

[66] Another piece of this puzzle, and to my mind the confirming factor, is K.S.’s gratuitous assault on M.O. as he crossed the street. The incident with Jacob had ended and M.O. was walking away. There was no issue of self-defence or defence of Jacob when thisassault occurred. The assault was the final component of K.S.’s direct participation in the attack on M.O. [67] Should I be concerned about her level of intoxication or drug impairment? The Crown submits that it is a factor I might considerbut should give it no moment. Officer Pansieri spent more time with K.S. than any other observer that evening.

According to theOfficer, K.S. did not smell alcohol, but the Officer did notice a lack of physical coordination. However, K.S. was able to be understoodand appeared to understand what was happening, according to Office Pansieri. She was coherent and able to control her ownmovements. She encouraged Jacob to get medical help. She was able to properly respond to questions about her own identify. [68] I find K.S. to be a party to the aggravated assaulted and assault with a weapon on M.O.

She is also guilty of common assault forthe gratuitous punching of the back of M.O.’s head as he left the scene. [69] Neither party addressed the issue of multiple convictions for a single transaction in their argument. The assault with a weaponand aggravated assault arise from the same transaction. I am aware that historically there may exist some disagreement among thevarious Courts of Appeal on whether one of these charges should be stayed (see R. v. Basilio (2003), (ON CA), 175C.C.C. (3d) 440 and R. v.

Thomas, 2015 NSCA 112, for examples of Courts that would enter a stay on one of the charges, and R. v.Strawberry, [1995] A.J. No. 579 and R. v. D.J.W., 2011 BCCA 522, for examples of appellate Courts that would not). [70] I invite further submissions on this point. Count 6: second degree murder of F.N. [71] K.S. is charged as a party to Jacob second degree murder.

It is a conceded fact that Jacob’s stab to F.N.’s heart was the cause ofhis death. [72] The evidence on this charge is much less overwhelming than on the other charges. [73] K.S. was identified as being the same young woman who was involved in the M.O. assault. When F.N. challenged Jacob to afight across the road, it is not known whether F.N. had seen a weapon up to that point. In fact, it is not clear if he ever actually saw aweapon. I know that as the two crossed the street they were followed by Jacob’s hitherto co-assailant, K.S.

She is identified by F.Kh.,A.H. and A.B. as being on the other side of Madison Ave. when the stabbing occurred.

Her exact whereabouts are important, because itis the theory of the Crown that at the moment F.N. went to toss a garbage can at Jacob, in all likelihood a defensive move, K.S.’sstepping forward caused F.N. to pull his punch and thus fail to employ the garbage can defensively, opening the way for Jacob to attackwith the knife. [74] It is F.Kh.’s testimony that K.S. was close enough to Jacob to step in front or towards the front and in F.Kh.’s surmise that wasenough to cause F.N. to pull back with his throw, leaving him defenseless against an assailant with a knife. [75] K.S.’s location and exact participation are of central importance in analyzing this charge. [76] A.B., watching the scene from across the street testified that he saw the garbage can engaged, but did not see it leave F.N.’shands.

A.B. also testified that the young woman with Jacob, was the same young woman who was banging on the door with Jacob, butthat she was 8 or 9 feet away from Jacob when the garbage bin was thrown. [77] F.Kh. remembers the scene differently. He remembers K.S. being sufficiently close to Jacob to influence events. F.Kh.’s exactwords were, “… he actually stopped his flow of his swing, because I believe the girl came in the way and he didn’t want to hit her.” [78] A.H. has yet a different recollection.

He watched the garbage can being thrown but could not say where the femaleaccompanying Jacob was, as he was focused on the interaction between F.N. and Jacob. If she had come between or made a move tocome between the garbage can and Jacob, he would have seen her. [79] When I closely examine this evidence, I realize I have a doubt as to what actually happened with the garbage can.

However, evenif I accept F.Kh.’s memory of the event – that K.S. stepped towards the path of the garbage can, thus causing F.N. to abandon a forcefulthrow – I would have to draw the inference that K.S.’s positioning indeed did cause F.N. to handle himself differently. In fact, whenF.Kh. gave his original statement to the police, he said that he didn’t know if F.N. hesitated with his throw or if he threw the can fullpower. Further, he wasn’t sure where the can landed – it might have even hit the young woman.

When confronted with this statement incross-examination, F.Kh. endorsed the notion that it seemed F.N. hesitated on his throw. I cannot say conclusively that this evidencesupports one inference and one inference only. [80] There are some additional considerations. Even if K.S. stepped in front of or towards the path of the garbage can, I have to beconvinced that this particular move was done to aid Jacob in his intention to cause bodily harm likely to result in death, to the exclusionof the other possible inferences that could be drawn.

Unlike the incident with M.O., where K.S. initiated physical contact, participatedalong the way and delivered the final gratuitous blow to the back of the head when the victim walked away from the scene, her steppingin at the moment the garbage can was being thrown is the only act that might be identified as evidence of her participation in the stabbingof F.N., her presence at the scene notwithstanding. Even if I believed beyond a reasonable doubt that the act happened as described byF.Kh., without more, it is

an act equally consistent with protecting her male friend, a theme that wove through the some of the events ofthe evening. [81] In the end, I have doubts on this count and K.S. in entitled to an acquittal.

Count 7: assisting Jacob for the purpose of enabling him to escape [ 82 ] The knife used that evening was found in the pocket of K.S.’s coat after the last incident. We do not know when it was placed there, but there is a period of time between chasing F.N. and returning to the area around 22 Madison where there is an absence of eyewitness or video evidence.

Because F.N.’s blood was on the knife, K.S. must have come into possession of the knife after the last stabbing incident. [ 83 ] At the point that K.S. is in actual physical possession of the knife, she would have previously witnessed it being used in a series of stabbings. It defies credibility that she could have worked alongside Jacob, actively protecting and at times participating, but fail to notice what was happening. Moreover, Jacob is identified early on as having an obvious and bloody injury to his leg (by E.M.), laying to rest any notion that K.S. could possibly be oblivious to the actual events.

Taking possession of a knife after this series of events leads to one inference only: it is being done to assist Jacob escape liability. [ 84 ] I know that this is the knife he wielded, because it contained numerous DNA samples, most of which could not be identified, and a positive finding for the blood of M.O. and F.N., the last two people stabbed. [ 85 ] I conclude that possessing the knife was K.S.’s final act of devotion to Jacob, after accompanying him on his rampage. [ 86 ] I am making a finding of guilt on this charge. Released on: February 16, 2021 Justice B. Weagant