R. v. Fisher and Milne Date:, 2015 BCPC 288

Citation: R. v. Fisher and Milne Date: 20150910 2015 BCPC 0288 File Nos: 223623-2-VC; 223707-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. WILLIAM RYAN FISHER JEFFREY RUSSELL JEAN MILNE EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: D. Porte

Counsel for Accused Fisher: M. Foster Counsel for Accused Milne: M. Klein Place of Hearing: Vancouver, B.C. Date of Hearing: Setpember 10, 2015 Date of Judgment: September 10, 2015 Introduction [1] THE COURT: On June 15th, 2011, there was a riot in the downtown area of Vancouver. During the riot, several hundredpeople committed numerous offences. In an effort to identify those responsible for the criminal acts, the police formed a riotinvestigation team. Over several months, the team collected videotape and photographs of the riot and those participating therein.

Theyobtained images from these mediums and posted them on social media in hope that the public would help identify the suspects. [2] Two persons identified as being involved in the riot were the accused, Mr. Milne and Mr. Fisher. As a result, the accused arejointly charged on Information 223623-VC-2 with the following offences: Count 1, taking

part in a riot; Count 2, committing anindictable offence with their faces masked; Count 3, mischief to the Bank of Montreal; Count 5, aggravated assault of ChristopherLeveille; Count 6, break and enter to Black & Lee Formal Wear and committing an indictable offence therein; Count 8, mischief toHudson's Bay; Count 13, mischief to Holt Renfrew. [3] Mr. Fisher is also charged with the following additional counts: assault of an unknown person, assault of Patrick Skogman,break and enter Hudson's Bay with the intent to commit an indictable offence, and Count 12, mischief to Mego Luggage. Mr.

Milne isalso facing additional charges. These are, Count 10, mischief to an unmarked police vehicle, to wit, a Ford Fusion; Count 11, break andenter to Mego Luggage and committing an indictable offence therein. [4] The trial consisted of several days of evidence. Large amounts of video and photograph evidence was presented. Counselagree the two persons captured on the video and in the pictures committing the offences set out in the Information were the same personsthroughout the entirety. This agreement is sensible given the uniqueness of how those persons appeared.

The uniqueness is found in theclothing worn, the manner in which the clothing was worn, the jewellery worn, and the physical characteristics of said individuals. [5] The issue for this court is, has the Crown proved beyond a reasonable doubt that the persons in the videos and in the picturesare the accused before the court. A secondary issue is whether or not the injuries suffered by Mr. Leveille fall within wounding,maiming, or disfiguring as required by the Code.

For these reasons and in light of the concessions made by defence counsel, there is noissue as to whether or not the offences in the Information were committed. Again, the central issue is, has the Crown proved beyond areasonable doubt that the offences were committed by the accused who are before the court. Legal Principles [6] The accused are presumed innocent throughout. This presumption is only displaced when, after hearing all of the evidence, atrier of fact finds, on all of the evidence, that an accused person's guilt has been proven to the high standard of proof beyond a reasonabledoubt.

The Crown has the burden of proving the accused's guilt beyond a reasonable doubt. At no time is an accused person required toprove their innocence. This statement is obvious given an accused is always presumed to be innocent. Proof beyond a reasonable doubtis a high standard, but does not require proof to the degree of certainty. [7] In deciding a case, the trier of fact must look at all of the evidence collectively and not in a piecemeal fashion. Certain issuesarise when a trial judge is presented with evidence that is video and photographic in nature. In R. v. Nikolovski, (SCC),[1996] S.C.J.

No. 122, the court dealt with the issue of videotaped evidence. The court noted if the videotape has not been altered, thenit is receivable as real evidence. In this regard, the court commented at paragraph 28: Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissibleand relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but itis to a certain extent, testimonial evidence as well.

It can and should be used by a trier of fact in determining whether a crime has beencommitted and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiasedand accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself itwill demonstrate clearly either the innocence or guilt of the accused. [8] With respect to the weight to be given videotaped evidence, the court stated at paragraph 29: The weight to be accorded that evidence can be assessed from a viewing of the videotape.

The degree of clarity and quality of the tape,and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weightwhich a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a fewframes which clearly show the perpetrator that may be sufficient to identify the accused.

Particularly will this be true if the trier of facthas reviewed the tape on several occasions and stopped it to study the pertinent frames. [9] The evidentiary value of the quality of videotape evidence is highlighted when the court recognizes that triers of fact can make

decisions on identification on the basis of video evidence alone. However, the court cautions that consideration must always be given to the quality, clarity, and duration in which the suspect is shown on the videotape. At paragraph 30 of Nikolovski , the court states: Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task.

They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused. [ 10 ] Finally, I caution myself about the possibility of honest and yet mistaken witnesses.

I also recognize that eyewitness identification can be inherently unreliable. For these reasons, I acknowledge that care must be taken in considering the entire context of the identification including the quality of the photographs and videos as well as the potential for witness contamination. [ 11 ] My comments are made with the understanding that the witnesses in this case are not basing their identification after having witnessed a crime by previously unknown persons.

Rather, the identification in this case is where the witnesses have looked at videos and pictures and made an identification based on their knowledge and recollections of the persons they claim to identify therein. The Evidence [ 12 ] The evidence from the Crown fell into the following categories: recognition witnesses, video and photographs, admissions, assault victims, medical and police personnel. The defence did not call evidence.

Given the issues outlined, I will only address the evidence related to identification, that being the recognition witnesses, the video and photograph evidence, as well as the nature of the injuries suffered by Mr. Leveille which would entail Mr. Leveille's evidence and Dr. Grafstein. A. Recognition Evidence [ 13 ] In support of their case, the Crown called recognition witnesses. A voir dire was held to determine the admissibility of the proposed evidence. At the conclusion, this court held the recognition evidence of all of the witnesses with the exception of Constable Dykeman was admissible.

Despite Constable Dykeman's evidence being inadmissible, a small portion of his evidence which appeared to link the accused and thus some circumstantial evidence was held to be admissible at trial. [ 14 ] Counsel agreed that all admissible evidence from the voir dire should form part of the trial evidence. As such, the relevant portions of the court's findings related to recognition witnesses of Mr. Fisher are set out in R. v. Fisher and Milne , 2015 BCPC 47 , at paragraphs 12 to 22 which will be set out below. [ 15 ] With respect to Monique Garneau, the court stated at paragraphs 12 to 18: [12] Ms.

Garneau was Mr. Fisher's next-door neighbour between 2001 and 2009. As such, it is Crown's view she is sufficiently familiar with Mr. Fisher such that she can offer recognition evidence. [13] In 2001, Ms. Garneau moved to 205B Street in Langley. The Fishers lived next door and Ms. Garneau believed Mr. Fisher was about 17 years old when she first moved in. [14] According to Ms. Garneau, her family and the Fisher family started becoming acquainted. In this regard, she had been to their home and the daughters of both families became friends. There is no evidence either of these connections resulted in Ms.

Garneau meeting Mr. Fisher. [15] As time passed, the relationship between Ms. Garneau and the Fisher family became strained. She found Mr. Fisher to be loud and disruptive. She testified he would frequently entertain visitors at the end of his driveway and on her property. These gatherings were troubling for Ms. Garneau. The nature of the gatherings led to Ms. Garneau speaking to Mr. Fisher and his parents. [16] On those occasions when she spoke to Mr. Fisher, she found him to be disrespectful as he would yell and tell her to shut up. The evidence was not detailed on how these interactions occurred.

Specifically, it is not known if Ms. Garneau would yell at Mr. Fisher from her home or if they were, in fact, face-to-face conversations. [17] On one occasion, Ms. Garneau went to Mr. Fisher's house to speak to his parents and the door was answered by Mr. Fisher. There is no evidence about what was said or the duration of the interaction. Ms. Garneau testified as Mr. Fisher got older, that he seemed to respond when asked to quiet down. [18] Ms. Garneau moved in 2009 and, since that time, she has seen Mr. Fisher walking on one or two occasions. She believes she saw

him near the arena on 40th and Brookswood. She does not recall if she was driving toward him or passing him. She maintains that she could still identify him by his profile. [ 16 ] Once the recognition foundation was covered, the Crown showed Ms. Garneau a series a photographs and videotapes all containing images of an individual the Crown alleges is Mr. Fisher. In all of the circumstances, Ms. Garneau identified this individual as Mr. Fisher.

With respect to these identifications, she based her identification on his reddish hair, his lighter skin, that he was generally tall, and sometimes had a goatee. [ 17 ] At one stage, Ms. Garneau was shown Police Exhibit 595-478(01) which is a video clip wherein a masked person approached the camera and utters a few words. It is noteworthy that when the person spoke, there were alarms and the noise of the crowd in the background. Ms. Garneau testified she could identify the individual as Mr. Fisher. [ 18 ] In considering Ms.

Garneau's evidence, I am satisfied that the IRIT000684 photo as well as Police Exhibit E24129 and others are of appropriate clarity from which a person with Ms. Garneau's experience could identify the individual contained therein. In arriving at my conclusion, I have considered that a witness' identification based on one photograph or one video clip would be risky.

This can be due to the fact that some photos and some videos provide little chances to identify, because of such things as the face being covered, sunglasses, the angle of the shot, the distance of the shot, or various shadings. [ 19 ] Despite this, these problems are rectified when one considers all of the shots collectively; that is to say, identification in an excellent photo or clip assists in the identification where the photos or clips are not the best.

This is because of the unique clothing, the manner the clothing is worn, the unique jewellery, and the unique physical characteristics all leading to the conclusion that the person, Ms. Garneau, believed was Mr. Fisher throughout all of the video clips. [ 20 ] With respect to Scott Norris, the court stated at paragraphs 19 to 21: [19] Mr. Norris first saw Mr. Fisher in 2003 when he moved into Ms. Garneau's home. As such, Mr. Fisher and Mr. Norris were next-door neighbours from 2003 to 2009 . . . While living next door to Mr. Fisher, Mr. Norris saw Mr. Fisher regularly. The circumstances where he would see Mr.

Fisher were usually when Mr. Fisher would walk by Mr. Norris' home and he would see Mr. Fisher from the front window of the home. [20] He also saw Mr. Fisher fairly regularly when Mr. Fisher would gather with other young persons at the edge of Mr. Norris' property. From the evidence, it would appear that this would occur at a minimum of every other week. Mr. Norris testified that, on one occasion he went out and spoke to Mr. Fisher and his group in an effort to get them to quiet down and move on. Mr. Norris also observed Mr.

Fisher leave his home and meet people in his driveway and at the edge of the roadway. [21] The last time that Mr. Norris saw Mr. Fisher was after 2009, but before February 2013. On this occasion, Mr. Norris saw Mr. Fisher in a beer and wine store and, during this observation, there was no interaction or discussion between them. [ 21 ] Once the recognition evidence was covered, Mr. Norris was shown a number of photographs and video clips. When shown IRIT00068 which is Exhibit 8, tab 2, Mr. Norris responded that it was Billy Fisher. He also identified Exhibit 8, tab 3, as Billy Fisher.

When asked if there was anything particular, he responded, "That's just Billy with his hat." [ 22 ] With respect to Police Exhibit 8, tab 4, Mr. Norris identified Mr. Fisher as the person in white. Mr. Norris explained that he could identify Mr. Fisher because of his face, red hair, chin, and that he had seen him before. [ 23 ] With respect to Police Exhibit 187-0217-(01) and 187-0218-(01), screenshots of Mr. Leveille getting kicked, Mr. Norris stated he believed the person to be Billy. [ 24 ] Mr. Norris was shown a video clip, Police Exhibit 595-478-(.01) where the person believed to be Mr.

Fisher approaches the camera wearing a mask and a baseball cap and states words to the effect, "Yeah, this is what Vancouver wants." Mr. Norris was asked if he saw anyone he recognized. Mr. Norris responded, "I heard Billy more than I saw him." Mr. Norris explained that Mr. Fisher was always loud and that he heard him all of the time. Mr. Norris also identified Mr. Fisher in the courtroom. [ 25 ] On the cross-examination, Mr. Norris acknowledged authoring an email where he responded to an inquiry from an investigator indicating that he had no doubt that Billy would be involved in the riot. Mr.

Norris was also pressed on his identification of Mr. Fisher leading him to indicate that part of his identification was his recollection of the shape of Mr. Fisher's face. [ 26 ] I accept Mr. Norris' identification of Mr. Fisher. Mr. Norris was familiar and had previous opportunity to observe Mr. Fisher. The identification was made from quality shots that were primarily clear and showing various angles. Further, the similarity of the unique combination of clothing, jewellery, and physical attributes assisted in the identification of Mr.

Fisher in those images where the angle of the shot or the lighting made facial identification somewhat difficult. These factors were not fatal to Mr. Norris' identification because it has been conceded that the person believed to be Mr. Fisher is the same person throughout all of the video clips. [ 27 ] With respect to Katharine Redmond, the court stated at paragraph 22: Counsel for Mr. Fisher concedes Ms. Redmond is sufficiently familiar with Mr. Fisher such that she can provide recognition evidence. In making this concession, counsel for Mr.

Fisher points out that he is not conceding to the quality of her evidence or the weight to be attached thereto.

[ 28 ] Additional testimony included the following. Ms. Redmond's daughter dated Mr. Fisher for approximately seven years. He came to family dinners several times per year and he went with the family on a trip to Vernon. According to Ms. Redmond, she did not like Mr. Fisher, but despite this, he was accepted as part of her family. Ms. Redmond last saw Mr. Fisher in July 2013 at a flea market. She confirmed that her daughter was dating Mr. Fisher in June 2011 and Ms. Redmond identified Mr. Fisher in court. [ 29 ] Ms. Redmond was shown Exhibit 11, tabs 2, 3, and 4, and she identified the person as Mr. Fisher.

She also identified the person in Police Exhibits 598-3125-(01), 187-217-(01) and 187-218-(01), 271-3 at 0-00-14-27, 271-3 at 0-00-19-49, 595-478-(01) at 0- 00-9-07-22 as Mr. Fisher. Ms. Redmond also recognized Mr. Fisher's jacket as she had previously washed it. With respect to the gold bracelet worn in the photos, Ms. Redmond recalled Mr. Fisher wearing a similar heavy-linked gold bracelet. It stood out in her mind as her husband had a similar one and she thought that it was outdated. [ 30 ] In cross-examination, Ms. Redmond acknowledged that her daughter and Mr.

Fisher had been in an on-and-off-again relationship. When pressed on what it was that she saw in order for her to say that it was Mr. Fisher in the photographs and videos, Ms. Redmond responded that it was "just Billy," that she knew his face and how he held himself. [ 31 ] I found Ms. Redmond to be a compelling witness. She was careful in her evidence. She did not embellish despite her admitted dislike for Mr. Fisher and despite her being happy that her daughter was no longer seeing him. Ms. Redmond was balanced with no apparent agenda.

In the circumstances, it is clear that she had significant interaction with Mr. Fisher and the contact had been over a number of years such that I accept her identification of Mr. Fisher. [ 32 ] With respect to Constable Dykeman's evidence, the court stated at paragraphs 8 to 11: [8] Constable Dykeman testified to seeing Mr. Fisher on three occasions. He saw Mr. Fisher between September 2012 and January 2013 when Constable Dykeman was conducting surveillance on Mr. Wade Bryant. During the surveillance, Mr. Bryant was followed to Mr. Fisher's home. Constable Dykeman saw Mr.

Fisher come out of his home and meet with Mr. Bryant for approximately 10 to 15 minutes. According to Constable Dykeman, he watched the meeting from a distance of 15 metres. Constable Dykeman knew that the person who Mr. Bryant met was Mr. Fisher as Constable Dykeman had received a target sheet with a photograph of Mr. Fisher. [9] Constable Dykeman also saw Mr. Fisher in early January 2013. At that time, Mr. Fisher was in the cellblock area of the Langley detachment and in the company of riot investigators.

At the time, Constable Dykeman said words to the effect of, "Billy Fisher is here." This prompted one of the investigators to acknowledge that Constable Dykeman could identify Mr. Fisher. Constable Dykeman estimates that he saw Mr. Fisher for approximately five minutes. [10] Finally, Constable Dykeman testified he saw Mr. Fisher at a hair-cutting shop. According to Constable Dykeman, this occurred between September 2012 and January 2013. On this occasion, Constable Dykeman saw Mr.

Fisher in a barber's chair and said to him, "Morning, Billy," to which the person he addressed replied, "Morning." There was no evidence that the person confirmed his identity. Essentially, the contact was for a very short period of time in very benign circumstances. [11] In reviewing Constable Dykeman's evidence, I note the length of relationship was [in total for] perhaps 20 minutes. The circumstance of the observations were varied and, with respect to the surveillance observation, I note the event was not so significant that notes were made or that Constable Dykeman can even give a precise date of the event.

Lastly, I note all Constable Dykeman's observations of Mr. Fisher were post [offence date of] June 11th, 2011. [ 33 ] As will become evident later in these reasons, I place little weight on Constable Dykeman's evidence. [ 34 ] With respect to Mr. Groot, the court stated at paragraphs 31 to 33: [31] Mr. Groot is a probation officer who supervised Mr. Milne between November 30th, 2009, and May 29th, 2012. As part of the supervision, the two would meet regularly with each meeting lasting approximately 20 minutes. For the first two years, they met once every three weeks.

On occasion, the reporting would change, for example, between October 2011 and May 2012, the reporting was done by telephone as Mr. Milne was out of town working. [32] When Mr. Milne and Mr. Groot would meet, they would meet in Mr. Groot's office where they would discuss the order, the community work service hours, and employment and family issues. When they first started meeting, Mr. Groot looked at picture of Mr. Milne that was on file at the Probation Services (see Exhibit I, tab 2) and he compared it to Mr. Milne and satisfied he was, in fact, meeting Mr. Milne. [33] With respect to contact between Mr.

Groot and Mr. Milne in and around June 15th, 2011, Mr. Groot met Mr. Milne on May 31st, 2011, and then the next meeting was on June 28th, 2011. In cross-examination, Mr. Groot acknowledged that Mr. Milne has slimmed down and looks more physically fit than he did in May 2012. [ 35 ] Additionally to what was noted in the voir dire decision, Mr. Groot testified he first identified Mr. Milne in April 2012 when the police attended his office and presented a group of 18 photographs and asked if he could identify anyone. All of the photographs

were of persons participating in the riot. Mr. Groot identified IRIT00487 as being Mr. Milne. [ 36 ] When the police attended his office, Mr. Groot suspected their attendance was related to one of his clients. At the time, Mr. Groot had a caseload of 55 to 60 clients. [ 37 ] Mr. Groot was taken by the Crown through a series of photographs and video clips. He identified Mr. Milne in all of them and he also identified Mr. Milne in court. It was suggested to Mr. Groot that some of his identification was influenced by what Mr. Milne was wearing in the photographs that he had identified. Mr.

Groot acknowledged that the clothing and the visual clues did have some impact on him when he identified Police Exhibit 595-139. [ 38 ] With respect to Mr. Milne's appearance between 2012 and his appearance in court, Mr. Groot noted Mr. Milne's hair was shorter, that he appeared more physically fit and that he no longer had a baby face. [ 39 ] On some of the photographs, Mr. Groot indicated that he was not 100 percent certain that the person was Mr. Milne. [ 40 ] I note Mr. Groot was a careful and thoughtful witness. He was familiar with Mr. Milne.

He had met him on several occasions and he even met him weeks before and weeks after the riot. Further, Mr. Groot made reasonable concessions about other photos influencing his identification of Mr. Milne. In conclusion, I found Mr. Groot's evidence to be strong and that his reliability was increased by the nature, duration, number, and timing of contacts he had with Mr. Milne. [ 41 ] At paragraphs 34 to 36, the court said the following about Sergeant Dion's recognition evidence: [34] Sergeant Dion was Mr. Milne's assistant hockey coach for two hockey seasons between the years 2003 and 2006.

The hockey season was typically from September to March with players and coaches meeting three times per week. These meetings were for games or practices wherein the team would usually have one hour and 15 minutes of ice time with a short meeting before and after each ice time. [35] Sergeant Dion also gave evidence that he saw Mr. Milne on approximately 10 separate occasions in the community. The circumstances of these observations were quite benign and usually involved Sergeant Dion driving by and seeing Mr. Milne. He estimates, on these 10 occasions, he saw Mr.

Milne for a total of about five minutes. [36] The last time that Sergeant Dion saw Mr. Milne was between April 2010 and December 2010. On this occasion, Mr. Milne was at an ice rink performing community work service. When Sergeant Dion saw Mr. Milne, the two briefly exchanged pleasantries and then went about their separate ways. On cross-examination, Sergeant Dion acknowledged that Mr.

Milne was a boy when the two had interactions and he has substantially changed since then. [ 42 ] With respect to the other issues, Sergeant Dion testified his son had been volunteering with the RCMP and he came home with riot roundup posters that he was to distribute throughout the community. Out of curiosity, Sergeant Dion looked at the poster. The poster he looked at contained over 90 photographs and he identified IRIT00480 as being that of Mr. Milne. [ 43 ] Sergeant Dion identified Mr. Milne in court and he identified Mr. Milne in several photos and video clips that were shown to him.

When asked how he could identify Mr. Milne, Sergeant Dion indicated Mr. Milne was burly. He had a big forehead. He recognized the eyebrows and the haircut. [ 44 ] A still from video clip Police Exhibit 595-1281 was shown to Sergeant Dion and he identified the person as Mr. Milne. He explained he recognized the distinct forehead, the full facial features, and the shorter hair. It should be noted that the image referred to is a frontal image of a person moving towards the camera at a slight angle. [ 45 ] Sergeant Dion was also shown Police Exhibit 595-478-(3) wherein the person's face is masked.

Sergeant Dion identified the person as Mr. Milne noting the same facial features, the same haircut, bigger forehead, and big build. [ 46 ] Defence counsel challenged Sergeant Dion on his ability to identify Mr. Milne from behind and Sergeant Dion was confident he could. He testified this was possible because Mr. Milne had a distinctive head and large ears. Moreover, when Sergeant Dion saw Mr. Milne performing community work service, Sergeant Dion identified him on that date from behind. Sergeant Dion acknowledged that Mr.

Milne's physical appearance has changed in terms of loss of weight and maturing. [ 47 ] It was put to Sergeant Dion that the clothing was a factor in his identification and Sergeant Dion acknowledged it was a factor. However, when the photos at tab 4 were put to him, he stated he was zoning in on the large forehead, the eyes, and the eyebrows. Sergeant Dion also commented that Police Exhibit 595-1249 at tab 3 showed a scar that he recalls Mr. Milne as having. [ 48 ] I acknowledge Sergeant Dion's contact with Mr. Milne was dated and that Mr.

Milne has changed since the date of last observation and his appearance in court. Despite this, I note Sergeant Dion's identification is from photographs and video clips that were taken within a year of his last contact with Mr. Milne. On a whole and despite the passage of time, I find Sergeant Dion's identification to be reliable. [ 49 ] John Bond's voir dire evidence was set out at paragraphs 37 to 39: [37] Mr. Bond coached Mr. Milne for two or three hockey seasons. During the season, they would interact three times per week for a minimum of six hours. It is clear from the evidence that Mr.

Bond had an affinity for Mr. Milne. He felt that Mr. Milne had a raw deal and he wanted to mentor Mr. Milne. He stated he loved him and still does and wanted Mr. Milne to be a part of his family. Mr. Bond

recalls that Mr. Milne was smart and always had a comeback. He also recalls an incident where he represented Mr. Milne before the league executive on a disciplinary issue. This sticks out in Mr. Bond's mind as it was the only time that he had done so for a player. [38] The last time that Mr. Bond saw Mr. Milne prior to the June 15th, 2011, event was between April 2010 and December 2010 when Mr. Milne was doing his community work service. On this occasion, Mr. Bond saw Mr. Milne wherein the two had a very brief exchange and Mr. Bond left to deal with the team he was coaching [at that time]. [39] Mr.

Bond acknowledged that Mr. Milne was just a boy when the two interacted and that Mr. Milne's body type had changed a lot since 2003 to 2006. Mr. Bond was adamant despite these changes he could pick out Mr. Milne, much like he could pick out his own son. [ 50 ] In addition to the recognition evidence, Mr. Bond testified that in the spring of 2012, Sergeant Dion brought the riot photo poster to him and asked if he recognized anyone. Mr. Bond stated he said, "Jeff," and pointed to IRIT photo 00480. According to his testimony, he recognized it because that is how Jeff looks to him. He identified Mr.

Milne in court. [ 51 ] Mr. Bond was taken to a number of photographs and videos. Within these, he identified Mr. Milne and, when asked how he knew it was Mr. Milne, Mr. Bond stated, "The big shoulders, the arms out, big lats," and then he referred to the scar within Mr. Milne's hairline and he referred to a portion of Mr. Milne's hair as a cowlick. In later photographs, he referred to the shape of Mr. Milne's head, his haircut, the body type, and then he said "everything" led to the identification. In one photograph that was presented, Mr. Bond identified a scar that ran through Mr.

Milne's eyebrow. [ 52 ] On cross-examination, Mr. Bond acknowledged that when he looked at the riot poster, he knew that there was a possibility that there would be someone who he had coached in hockey. [ 53 ] Mr. Bond was challenged on his ability to identify Mr. Milne and he was taken to several photos. Mr. Bond maintained that he knew the person was Mr. Milne commenting on Mr. Milne's scars, blue eyes, hair style, ears, and body type. [ 54 ] It is clear that Mr. Bond had a special relationship with Mr. Milne. It makes sense that the closeness of their relationship made Mr. Bond very capable at identifying Mr.

Milne. I found Mr. Bond to be reliable and that he was able to provide a strong foundation as to his identification of Mr. Milne. [ 55 ] With respect to Constable Dykeman's evidence, I am concerned about the possibility of contamination and hearsay. In this regard, I noted he linked Mr. Bryant and Mr. Fisher because of a target sheet wherein there was a photograph identified as being that of Mr. Fisher and Mr. Fisher's address. He observed Mr. Bryant meeting a person looking like the person in the photograph at Mr. Fisher's address. [ 56 ] Although the address was Mr.

Fisher's, how does one know that the target sheet correctly identified the accused, Mr. Fisher, and did not confuse him with a relative? It is noteworthy that there are no other notes or a description of the person that Mr. Bryant met. For these reasons, I give Constable Dykeman's evidence very little weight. The Video Clips and Photographs [ 57 ] I find the video and photographs to be of remarkable quality.

For the most part, they are clear, they represent several angles of the subjects, and they are taken in relatively good light. [ 58 ] With respect to some of the CCTV and security videos, I note they are dark and of lesser quality, but they are sufficient such that one can make out the unique clothing of the subjects thus enabling a comparison to be made to the higher quality videos and photos.

When this is done, there is no doubt that the persons in the darker videos and photographs are the same persons shown in the higher quality material. [ 59 ] A unique feature of the videos and the pictures is that when they were presented in the electronic format, the software permitted the viewer to slow, enhance, and zoom in on images within the video. This permits a close and undistorted view of the majority of the images.

When reviewing all images, I took care to utilize the software features to slow, enhance, zoom, pause, and review the images on several occasions. [ 60 ] When examining the videos related to Mr. Fisher and comparing the images to Mr. Fisher as he appeared in court, I noted several similarities including all the images show a tall lean person, similarity in age, both Caucasian and with a chin that is somewhat protruding with light reddish hair and a nose forming high between the eyes and long coming almost to a point. [ 61 ] It is also noted in the photograph at tab 4 of the book presented to Ms.

Redmond that the person identified as Mr. Fisher had a unique characteristic on his left ear wherein the opening drops down significantly towards the earlobe. I have noted this identical characteristic on Mr. Fisher's left ear during the many days of trial. I have not noted any material differences between the person presented in the video and the person who appears in court. [ 62 ] The court places considerable weight on the evidence of Ms. Redmond. She has known Mr. Fisher for a number of years and interacted with him on several occasions in a variety of settings.

She was also able to identify his jacket and testified about seeing him wearing a heavy-linked gold bracelet. [ 63 ] In conclusion, and after considering all of the evidence presented, including my own observations, I found the Crown has proven beyond a reasonable doubt that Mr. Fisher is the person identified in all of the videos and photographs.

[64] When examining all of the evidence related to Mr. Milne, I am satisfied beyond a reasonable doubt that he is the persondisplayed in all of the videos and the photographs. In arriving at my conclusion, I note that Mr.

Milne, like the person in the videos andphotographs, is male, Caucasian, of similar age and hair colour, with blue eyes, deep-set eyes, and a scar starting on the left edge of hisright eyebrow which radiates upwards. [65] With respect to the scar, that was evident in court, it was also evident in Police Exhibits 595-1281 and 595-478-(03) and it wasalso evident in the known photograph taken by the police on May 18th, 2012 (see Exhibit 1, tab 10). [66] I would be remiss if I did not acknowledge that there are some differences in the appearances of Mr. Milne as he sat throughcourt.

However, these appearances are primarily stylistic in that hair style has changed and his weight has changed. When examiningthe face, the eye features, and the scar, there is no doubt that the person in court is the same person depicted in the video. [67] Additionally, I place considerable weight on the evidence of Mr. Bond who was able to identify Mr. Milne's unique scars suchas those on the back of Mr. Milne's head and the one on the front in his hairline. Considerable weight is also given to Mr. Groot'sevidence.

In this regard, it is noteworthy he made a selection from 18 photographs, that he had several meetings with Mr. Milne, andthat he observed Mr. Milne shortly before and after the riot. The Aggravated Assault Count [68] The court heard evidence from Mr. Leveille and Dr. Grafstein. The Crown also entered video clips showing Mr. Leveille beingpunched, kicked, and stomped. [69] With respect to Mr. Leveille, he identified himself as being the person assaulted on the video. He described waking up about ablock and a half away from where he was assaulted and not being able to breathe.

He remembers feeling a sharp pain and losingconsciousness only to wake up in the back of a vehicle. [70] Mr. Leveille was taken to the hospital. At the hospital, he was treated which involved the insertion of a tube in the side of hischest. The tube remained for two weeks. He testified about general scrapes including what he described as a chunk out of his shoulderthat left him with a one-and-a-half-inch scar. [71] Dr. Grafstein examined and treated Mr. Leveille. The examination revealed that Mr. Leveille had a moderate lung collapse. Hetreated the collapse by inserting a tube through the chest wall. He gave Mr.

Leveille pain medication and discharged him. With respectto a lung collapse, Dr. Grafstein testified that a lung collapse can occur spontaneously or via trauma when force is applied to the chest orribs. He testified that a lung collapse left untreated can or may be fatal. [72] Dr. Grafstein was shown a video clip wherein Mr. Milne stomped on the right side of Mr. Leveille's ribs while Mr. Leveilleappears to be unconscious on the ground. According to Dr. Grafstein, the stomp was consistent with the mechanics of the injury. Position of the Parties [73] Counsel for the accused argue the injuries suffered by Mr.

Leveille did not wound, maim, disfigure, or endanger the life of Mr.Leveille as required by s. 268 of the Criminal Code. [74] The defence relied on R. v. Germaine from the Yukon Territorial Court and S.E.L., as well as R. v. Littletent, [1985] A.J. No.256 (A.B.C.A.). The defence suggests there must be some sort of permanent damage or dysfunction as required by Littletent toconstitute aggravated injuries set out in s. 268 of the Criminal Code. [75] The Crown argues the collapsed lung constitutes wounding and therefore meets the requirement of s. 268 of the Code.

TheCrown also argues that if a cutting of the skin is required, then the injury to Mr. Leveille's shoulder meets this criteria. [76] Mr. Justice Davies dealt with the issue of aggravated assault in R. v. Armstrong, 2002 BCSC 1824 , [2002] B.C.J. No.3079. In Armstrong, the victim suffered a fractured wrist and bruising. The court held the victim had been maimed as he had beenrendered less capable of defending himself. At paragraph 21 of the decision, the court observed: In R. v.

Schultz (1962), (AB CA), 133 C.C.C. 174, the Alberta Court of Appeal considered the historical origins of theconcept of maiming in the context of the criminal law. In essence, in the context of s. 268 and its historical predecessors, the maiming ofa complainant will be established when the assailant causes bodily harm to his victim to such an extent that it renders his victim less ableto fight back or to defend himself or herself.

In Schultz, the Alberta Court of Appeal determined that the breaking of the victim's leg inthat case was a sufficiently serious injury to amount to maiming at law and to establish guilt under the predecessor

section to s. 268. [77] In R. v. Vincent, [2011] O.J. No. 143 (S.C.J.), the defence argued that a skull fracture did not amount to wounding as there wasno significant breaking of the skin. In dealing with the issue, the court commented in paragraphs 9 to 16: 9 The only authority to which I was referred was Littletent, a decision which is not binding on me. In that case, the victim wasassaulted. His injuries included a fractured jaw and rib and a perforated eardrum.

The ear canal was swollen, bruised, and full of blood.The Alberta Court of Appeal concluded the perforated eardrum likely resulted from trauma to the head and therefore the charge ofwounding was made out. In Littletent, the court made no analysis of what constitutes wounding in the Criminal Code, beyond observing,"... the authorities clearly show that a breaking of the skin is necessary to constitute 'wounding.'" The authorities referred to are not citedin the judgment.

The court concluded that the tissues of the eardrum met the test for breakage of the skin. 10 The origins of the legal definition of wounding appear to date back at least to Lord Lyndhurst's definition in Moriarty v. Brooks(1834) 6 Car & P 684 at 686. Moriarty was cited in Devine v. R. (1982) 8 A Crim R. 45 at 54-55 by Justice Cosgrove who observed:

The meaning of 'wounding' is well settled. Lord Lyndhurst in 1834 said that the definition of a wound in criminal cases is an injury to the person, by which the skin is broken. If the skin is broken, and there was a bleeding, that is a wound. 11 The definition of "wound" contained in Wharton's Law Lexicon (14th edition) Universal Law Publishing Co. Pvt. Ltd. 2001 is more expansive. There a "wound" is defined as Any lesion of the body, whether cut, bruise, contusion, fracture, dislocation, or burn.

In surgery it is confined to a solution of continuity in any part of the body, suddenly caused by anything that cuts or tears, with a division of the skin. 12 The Canadian Oxford Dictionary , 2001, Oxford University Press, Don Mills, Ontario also defines "wound" expansively as "an injury done to living tissue by a cut or blow etc., esp. beyond the cutting or piercing of the skin." 13 In R. v. Waters [1979] 1 NZLR 375, the New Zealand Court adopted the concept of damage to tissues when it considered what constituted a wound.

At para. 378 the court observed: A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal. Harman's case and Waltham's case are illustrations of this.

We do not understand the dictionary meaning of the term to exclude them. 14 The Criminal Code provides an escalating series of assault-type offences from assault, ( s. 266 ), to assault causing bodily harm ( s. 267 ) to aggravated assault (s. 268), which includes wounding. In my view, Parliament intended to reflect the increasing gravity of each succeeding offence in the definition of and penalty for each kind of assault.

When the prescribed maximum penalty is considered, an aggravated assault is the most serious of the three types of assault. 15 In my view, the seriousness of an aggravated assault by wounding should not be minimized by an artificially narrow definition of wounding, limited to external bleeding. Lord Lyndhurst's definition originated at a time when medical knowledge was less sophisticated than it is at present. The law develops incrementally, in accordance with changes in knowledge and social values.

An unduly narrow definition of wounding may impose greater criminal responsibility for minor external bleeding but ignore substantial internal damage to tissues caused by an assault. 16 In my view, the correct approach is that of the New Zealand Court in Waters , in which separation of internal tissues was accepted as also constituting wounding. This

interpretation considers the damage that may be caused by internal injuries as the result of an assault. The reasoning is also consistent with the Alberta Court of Appeal's conclusion in Littletent that a rupture of the internal tissues of the eardrum qualifies as wounding. [ 78 ] In my view, the injuries suffered by Mr. Leveille satisfy s. 268 of the Criminal Code . First, I find that he was maimed by the injury and the injury resulted in Mr. Leveille being rendered less than capable in defending himself.

Specifically, he could not breathe, he lost consciousness, and he could barely walk. [ 79 ] I also accept the reasoning in Vincent in that damage caused by internal injuries may constitute wounding. In the circumstances, the blow to Mr. Leveille's ribcage caused damage to an internal organ, his lung, thus resulting in dysfunction as envisioned by Littletent and commented on in Vincent and, therefore, wounding is made out. [ 80 ] Finally, I also note Dr. Grafstein's evidence where he indicated that such an injury, collapsed lung, left untreated can or may be fatal. From this, I find that in the circumstances Mr.

Leveille's life was also endangered. Conclusion [ 81 ] After considering all of the evidence, I find that the Crown has proven beyond a reasonable doubt that the accused committed the offences as alleged. [ 82 ] I am also satisfied beyond a reasonable doubt that the injuries suffered by Mr. Leveille meet the requirements as set out in s. 268 of the Criminal Code . [REASONS FOR JUDGMENT CONCLUDED]