R. v. Anderson et al. Date:, 2013 BCPC 202

Citation: R. v. Anderson et al. Date: 20130423 2013 BCPC 0202 File No: 189548-5C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Regina v. REO JOSEPH JAMES ANDERSON KYLE ALEXANDER CAMERON CHAD DONALD CAMERON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. B. HICKS Counsel for Crown : T. Buziak Counsel for the Accused Anderson: J. Myers, Articled Student, appearing for J. Allingham

Counsel for the Accused Chad Cameron: G. Welock Counsel for the Accused Kyle Cameron: G. Welock, appearing as agent for D. Gable Place of Hearing: Surrey , B.C. Dates of Hearing: Jan. 14, 15, 16, 17, 21, 22, 23; Apr. 5, 11, 2013 Date of Judgment: April 23, 2013 [ 1 ] THE COURT : Reo Joseph James Anderson, Kyle Alexander Cameron and Chad Donald Cameron are before the court for their trial, charged jointly on Information 189548-C5, that on July 6, 2011, at Surrey, British Columbia, they committed the aggravated assault of Dilshad Mohammed, contrary to s. 268(2) of the Criminal Code .

The trial took place over several days. The Crown called the complainant, three civilian witnesses who observed events, and eight police witnesses. Various admissions of fact were made pursuant to s. 655 of the Criminal Code . Further, by admission with the benefit of counsel, the accused Anderson and Kyle Cameron admitted statements they made by way of video and audio-recorded interviews with police investigators were voluntary and they were admitted as exhibits in DVD and transcript form. Numerous other exhibits were filed on the trial.

No evidence was called by any of the three accused. [ 2 ] The admission of fact filed as Exhibit 5 states that the complainant was assaulted and suffered the following injuries: a significant displaced nasal fracture, a right orbital floor fracture, a right frontal scalp hematoma and a traumatic brain injury. In his brief evidence, Mr. Mohammed said that he recalls being hit but not much else. He was permanently disabled by the assault. He continues to engage physical, occupational and speech therapy arising from his injuries. He is unable to return to his work as a truck driver and is no longer employed.

He is assessed as severely impaired. I find, consistent with the admission of all counsel set out in Exhibit 5, that Mr. Mohammed was the victim of an aggravated assault as defined in the Criminal Code . The issue on this trial is whether, on the evidence presented in the Crown's case, the participation of these three accused in that assault has been proven beyond a reasonable doubt. [ 3 ] The evidence establishes that the assault was in the nature of a swarming of Mr. Mohammed by five or six individuals who quickly forced him to the ground and then kicked and punched him to unconsciousness.

There is no evidence that the attackers knew Mr. Mohammed or that he knew any of them. The location where the events occurred is depicted in two aerial photographs marked Exhibit 1. The first photo depicts 137A Street between 101 Avenue on the south and 101B Avenue on the north. Immediately north of 101 Avenue, a lane runs to the east from the east side of 137A Street. That lane borders the rear of houses on the north side of 101 Avenue. The house on the northeast corner of 137A Street and 101 Avenue and bordering the lane at its rear is known to be a crack house.

The house on 101 Avenue to the immediate east of the crack house was, at the time, the home of Chad and Kyle Cameron and their mother. The west side of 137A Street within this block is substantially occupied by an apartment building. A grassy strip runs along the border and sidewalk on the west side of 137A Street the length of the apartment building.

There is a parking lot servicing the apartment building to the immediate south of that building and running the entire south side of the building facing 101 Avenue. [ 4 ] Two civilian witnesses, Elaine Janzen and her mother, Tania Janzen, live in an apartment on the third floor of the building at the southeast end of that building. Despite several trees along the east side of the building and facing east onto 137A Street, they have a view from their apartment onto 137A Street and the lane entrance. The assault of Mr.

Mohammed occurred on 137A Street in immediate proximity to the lane entrance or perhaps just south of that entrance. [ 5 ] Scene photographs taken in daylight and set out in Exhibit 2 show the area around the lane. The roadway is paved but there is a relatively wide gravel shoulder on the east side of 137A Street. Review of the evidence and the photographs in Exhibit 2 demonstrate the presence of a street lamp at the north edge of the lane entrance and on the west side of 137A Street just south of the lane entrance. Other pot lights are visible at entrances to the apartment building and the parking lot.

The lane itself is visible in photograph 8 of Exhibit 2. It is a gravel surface and runs to a dead end behind several of the houses facing onto 101 Avenue. A hedge runs along both sides from the entrance off of 137A Street. There is no additional lighting in the lane and at night it becomes darker as one moves eastbound up the lane. [ 6 ] It appears the weather on the evening of July 5 and the early morning of July 6, 2011, was pleasant. It appears that Mr. Mohammed parked his car, a silver Honda, on the gravel shoulder on the east side of 137A Street just south of the lane entrance.

It is visible in several of the photographs in Exhibit 5. There is no evidence as to when he did so or where he had been leading up to the events surrounding the assault. [ 7 ] Trisha MacDonald was the Crown's first witness. She stated that she is familiar with the area. She was a drug user and familiar with the crack house adjacent to 137A Street. She said that she, at one time, ran that establishment. Ms. MacDonald said that at about 1:30 a.m., she encountered an East Indian male at the corner of 137A and 101 Avenue outside the hedge surrounding the crack house. I conclude this male was Mr. Mohammed.

She suspected from his speech that he may have consumed alcohol. He offered her a ride. They walked to his car parked on 137A Street, as I have earlier described, just south of the entrance to the lane. As they reached the car, she said a group of five or six males came out of the lane. They were drinking and carrying beer cans. They were loud. They walked to the car and swarmed around Mr. Mohammed. They began calling him names, including racial names such as "rag head" and "shit skin". Mr. Mohammed had not said or done anything to attract their attention. All of the males began shoving and pushing Mr. Mohammed.

After being hit several times, he fell to the ground. He had no chance to defend himself. He was kicked and punched while on the ground. [ 8 ] Ms. MacDonald said she moved two or three metres back. She said all of the males who came from the lane participated in the kicking and punching of Mr. Mohammed. As this continued, Ms. MacDonald said one of the males came over to her and asked her what she was doing and why she was hanging out with this guy. In direct evidence, she did not describe this male or what he wore in any detail.

She did say he appeared darker than white-skinned but seemed somewhat uncertain about this. While this exchange occurred, the others continued to assault Mr. Mohammed. The male turned back towards the group.

[ 9 ] Ms. MacDonald says she then walked to the driveway of the crack house just south toward 101 Avenue. She walked into the driveway, wanting to find a way out of the area. She then walked out of the driveway and across 137A Street toward the parking lot on the south side of the apartment building. The same male from the group of attackers who had spoken to her moments earlier, followed her into the parking lot. She found two people unloading their car in the parking lot. She asked for help but they did not want to become involved. No one else was visible to her in the parking lot.

The male who followed her then tried to get her to come with him, pointing back towards the alley. The other males were still in that area but she cannot say if the beating was ongoing at that point. She said she had to meet a friend. The male said words to the effect that she would be next, pointing to the man on the ground, and he was going to kick her teeth in. He asked her if she drank beer. She could tell that he had been drinking.

She said that he reeked of booze and he had a beer in his hand. [ 10 ] This male then took a hold of her arm and took her to the centre of the street in the direction of the other males. One of those males approached and asked this male holding Ms. MacDonald why he was bringing her. That individual was slurring his speech and was drunk. He wore a white tank top-type shirt. The males exchanged words. [ 11 ] At this point, the males began to scatter as a police car approached at fast speed southbound on 137A Street in their direction from 101B Avenue. It stopped more or less at the entrance to the lane.

With the exception of the male who had been holding her arm, the other males ran off. Members of that group ran up the lane but she is unable to say whether all of the remaining males went that way. The male who restrained Ms. MacDonald did not flee. In her direct evidence, Ms. MacDonald said that she observed this individual taken into custody at the entrance to the lane. [ 12 ] The evidence establishes that Cst. Dyck and Cst. Jones were the first officers to arrive on the scene following a 9-1-1 call from Elaine Janzen who observed events from her apartment. They arrived travelling southbound on 137A Street.

They observed people scatter as they approached. One male did not leave and was arrested by Cst. Dyck immediately on arrival at the entrance to the laneway. That male was the accused, Reo Anderson. Ms. MacDonald said that no one else was in the street other than those that she described. As police arrived, Ms. MacDonald moved to the sidewalk on the west side of 137A Street and began walking away northbound. She could see people on the balcony of the apartment building. She spoke with a police officer after reaching Whalley Boulevard from 101B Avenue. [ 13 ] In cross-examination, Ms.

MacDonald said the male who followed her to the parking lot appeared to have skin colouring a little darker, like Spanish or Italian. She agreed that in an interview with police she said this person was about six feet tall, that he wore a white t-shirt and jeans and he was not wearing shoes. Exhibit 4 contains photographs of each of the three accused taken following their arrest while at the police station. Photographs 5 and 6 show Mr. Anderson in the clothing he wore on arrest by Cst. Dyck.

He is wearing blue denim shorts and a black or dark blue t-shirt with a large primarily white design of a dog with lettering over the left front chest. A similar design dominates the back of the t-shirt. In his evidence, Cst. Leckie said that Mr. Anderson wore runners. [ 14 ] In further cross-examination by counsel for Kyle Cameron, Ms. MacDonald agreed that although she quit drug use in November of 2011, at the date of these events she was still using heroin and cocaine, although, she says, not regularly. She had been to that crack house on this particular day.

She cannot recall if she used that day or the previous day. During cross-examination, Ms. MacDonald said that all of the males had shaved heads. I note here that the arrest photographs of each accused in Exhibit 4 show them with very short hair which could well have been shaved to that length. Ms. MacDonald was closely cross-examined about her involvement with the crack house. She struck me as being frank and open about that. She was challenged as to her recollection of the number of males involved. Her evidence remained consistent in the five-to-six range. She agreed her memory has faded.

She agreed that the events were traumatic and that she would rather forget them and that she did not watch every moment of the beating being administered because of her distress. [ 15 ] Elaine Janzen said that she was awoken by the noise of an altercation on the street at about 1:30 a.m. She looked out her bedroom window onto 137A Street. She says she saw six individuals beating one victim on the gravel shoulder near the alley. She saw the victim standing at first but then knocked down by punches and shoving. He was then kicked in the head repeatedly by those encircling him.

She said all six males were involved in the beating. Ms. Janzen said there was street lighting in the immediate area and she had no difficulty observing the events. She marked Exhibit 6, which was a copy of the aerial photograph of the area, to show where the assault occurred just to the south of the lane entrance. She said the victim's shoes were removed and he was then dragged by the ankles into the lane by one of the males. At this point, she said, he was unresponsive. The other males were still present. On Exhibit 6 she marked the path the victim was dragged into the lane.

She believes this was an attempt to conceal the victim. Ms. Janzen said that at some point during the dragging of the victim, four of the males ran across 137A Street onto the apartment building property apparently adjacent to the south side of the building near the parking lot and out of her view. She has marked this route on Exhibit 6. She could hear them talking and yelling. At about this time the police arrived. [ 16 ] In her evidence, Ms. Janzen was permitted to refresh her memory from her statement as to descriptions of the individuals and clothing. She said the males were Caucasian with very short hair.

They wore variously jeans, runners, black-and-white t-shirts, one wore a black shirt with a print on the back; another wore a white tank top like a muscle shirt. They appeared to be in their mid-20's. Ms. Janzen said she did not observe any vehicles parked in the area, although it is clear Mr. Mohammed's vehicle was in the immediate area of the assault. Throughout the events, Ms.

Janzen was on the telephone to the 9-1-1 operator. [ 17 ] In her direct evidence she said she was distracted by the fact that she was conducting an ongoing telephone dialogue with the operator and was moving from room to room and onto her balcony on the southeast corner of the building to observe events. She said her mother was also speaking to her and commenting as the events proceeded. She agreed the events were traumatic to witness. [ 18 ] Following a voir dire , I admitted into evidence the transcript and recording of the 9-1-1 call for the truth of its contents. In the transcript, Ms.

Janzen stated: Six men are beating up a man and he is unconscious and not moving. I think he's dead. [ 19 ] She is asked to confirm it is six guys and she then states:

Yeah, one, two, three, four, five, six. Around there, yeah. She then said: Now they've dragged his body. Oh, my God. Oh, my God. They're putting him in a bush. They're trying to hide it. Now they are kicking him in his head and his face. [ 20 ] As the dialogue proceeds, Ms. Janzen refers again to the attackers bashing his head in and kicking his face and dragging his body. She again confirms the number, six men. She said they were taking their shoes off.

She describes them as: All Caucasians, in their mid-20's, wearing black jeans, uh, wearing black jeans, black shirts, black jeans. [ 21 ] She then described a male wearing a white muscle shirt, black jacket with writing on the arm, blue jeans and flip-flops with socks on. She then said they were walking down the apartment building. She went on to describe one of the males as wearing a white t- shirt and jeans and white runners. She said that another wore a black t-shirt with a print on it and black jeans.

She then described in clarification in her evidence the arrival of police officers, three of whom ran up the alley. In the transcript Ms. Janzen said they all came from the white house. In her direct examination she corrected this. She did not see anyone come from the white house, which I take to be the crack house, but rather she meant the events began at the hedge in front of the white house. A large hedge runs along the side of the crack house facing 137A Street. [ 22 ] In evidence Ms. Janzen said that she was, at some point, able to see the four people who had come across the street.

As police arrived she is unable to say where they went. Somewhat in contradiction in her evidence, she said she recalled one police officer chasing one or two males up the alley. She does not recall a female person being present. She observed police discover the victim in the lane. [ 23 ] In cross-examination, Ms. Janzen agreed that she could not describe any specific facial features, markings or jewellery of any of the assailants. She agreed the trees in front of her building obstruct her view to some extent but she was able to move between three windows and so able to observe the events.

She pointed out the area is well-illuminated. Ms. Janzen was referred to a later statement given to police in which she said five or six people were involved and that she was not sure of the total. She is now certain, having heard the 9-1-1 call played, that indeed six people were involved. She agreed that she described the victim in her statement as a Caucasian with longish hair. It was suggested that a group of the attackers went up the alley.

She said she observed just one and that an officer went after him, four were near her building and the sixth she is unsure of, perhaps resulting from her movement from window to window. [ 24 ] She was asked about the assertion in her statement that some attackers took off their own shoes and used them as weapons but she does not recall that now. She said her father was also present but was not a distraction. In further cross-examination, Ms. Janzen corrected references she made in the 9-1-1 call to "they" dragging the victim and hiding him.

She meant a single person was doing so, although all were present. [ 25 ] Tania Janzen is Elaine Janzen's mother. She said she was awoken when she heard her daughter calling the police. She went to her window and saw a crowd of people and a man lying on his back on the pavement on 137A Street. He was surrounded. He was in his 20's, short hair and brown-skinned. There was a lot of screaming and yelling, she said. She saw four or five men present and two women with shoulder-length black hair. All of the men were mercilessly kicking and punching the man on the ground about his head and chest.

The women were not involved and were some distance apart. She saw no one else present. She said the men all had nearly shaven short hair to the point it was nearly bald. They were all Caucasian. [ 26 ] Using a copy of the aerial photograph, which was marked Exhibit 9, she places these events in the same general area as her daughter, just south of the lane. She observed the punching and kicking to stop. The victim was not moving. She saw one of the attackers pull the victim by the ankles into the lane and shove him into the hedge. She then saw another of the males run up the lane.

The others ran south on 137A Street in the area of the parking lot as police cars began to arrive. She observed a number of police cars arrive and officers disperse about the area. She saw an officer run up the lane and another tend to the victim. She could see the officer running up the lane and the person he was chasing at the outset of the chase. She cannot say where the two women went. In her evidence, Tania Janzen said the males were in their early 20's. She recalls they all wore shorts.

One wore a white t-shirt with a print on the back from shoulder to waist, and almost from shoulder-to-shoulder. [ 27 ] In cross-examination she said that she cannot say if this shirt was white with black pattern or black with a white pattern. The others wore plain white sleeveless shirts. Ms. Janzen was permitted to refer to her statement made about two hours after the events. She then varied her evidence to the effect that some of those she saw wore shorts. [ 28 ] Tania Janzen said in cross-examination that the events unfolded quickly.

There was a flurry of activity and that she was moving to be able to see the events around her daughter. She described the events as chaotic. She was questioned closely about the number of attackers and referred to her statement in which she said there were four men involved. She confirmed her evidence that she recalls four or five. She was referred to her statement in which she said the victim had a good tan but was probably white. The essence of her response is that she could not tell his colour for sure. She is not able to confirm the footwear worn by any of those involved or the victim with confidence.

She does not recall footwear being removed or used as a weapon. She did not note the arrest of anyone at the scene or the presence of the victim's vehicle or that anyone carried beer cans. Her focus, she said, was on the victim. [ 29 ] Cst. Robert Dyck and his trainee partner, Cst. Shawn Jones, were dispatched to attend the report of an assault in progress at about 1:30 a.m. They arrived in the area southbound on 137A Street from 101B Avenue. As they proceeded south on 137A, Cst. Dyck saw five or six people in a huddle. As they approached and were braking, this group ran.

Exhibit 10 is a copy of the aerial photograph on which Cst. Dyck has marked the position of his vehicle when it came to a stop on 137A Street in front of the lane. As the vehicle came to a stop, Cst. Jones got out of the passenger side and followed those who ran up the lane eastbound. Cst. Dyck got out and confronted one of the group who did not run. This was Mr. Anderson. He approached Cst. Dyck and stated words to the effect, "Fuck you. Get lost. I didn't do anything." He was told he was under arrest. There was a struggle. Mr. Anderson was taken to the ground. At this point, Cst.

Leckie arrived and took custody of Anderson.

[ 30 ] Cst. Dyck then went into the lane where he found the victim lying half-dressed and with his shoes off. He remained with the victim and travelled with the victim by ambulance to the hospital. Cst. Dyck said, with the exception of Anderson, the others in the huddle of five or six ran up the lane. As they ran past the front of his car into the lane, he noted one wore a white tank top and the others wore t-shirts. They were of similar height and build with short buzz cuts. He was focused on this group and did not note any females in the area. [ 31 ] Cst.

Dyck was referred to Exhibit 4, a book of photographs of the three accused. The evidence establishes that photos 1 and 2 are of the accused, Chad Cameron. He is wearing a white sleeveless tank top type of shirt and blue jeans. Cst. Dyck said he recognized the white tank top and jeans which stood out on his arrival. He said he knows the person in those photographs. [ 32 ] He identified the accused, Anderson, as the person who confronted him on arrival and was arrested. He confirmed Mr. Anderson was wearing the clothing as depicted in photographs 5 and 6 of Exhibit 4 at that time.

He noted a faint smell of liquor about Anderson on arrest. [ 33 ] Photographs 7 and 8 of Exhibit 4 are of Mr. Anderson's hands following arrest. The palm of his right hand is bruised and there is a smaller bruise on the back of that hand. Cst. Dyck is unable to say if that occurred during the arrest procedure, although in cross- examination he agreed the landing on the gravel was not soft. Cst. Dyck did not otherwise identify anyone as having been among those in the huddle and who dispersed as he arrived. [ 34 ] Mr. Anderson was placed in the custody of Cst. Leckie at the scene. Cst. Leckie observed Mr.

Anderson to be rude and cocky. He had a strong odour of liquor about him. He believed Anderson to be impaired but not to the point of confusion or such that he was unaware. He observed blood on his palms. Anderson remained handcuffed on the ground for about ten minutes until Cst. Leckie could return to him after assisting Cst. Dyck with the victim. He was then put in the police car and given his Charter rights. He made certain utterances at a later point and while awaiting transport which, following a voir dire , I found to be voluntary and admissible.

He stated, unprompted, the following: "I didn't assault no one." He also said: "I was assaulting the dude who was getting beat up." [ 35 ] These words were recorded by the officer in his notes at 4:13 a.m., about two hours after they were spoken. He said he did not record everything verbatim but these words stood out and he remembered them word for word. In cross-examination, Cst. Leckie said that Mr. Anderson is a white male but there is an Hispanic aspect to his appearance. Although Cst. Leckie did not take Mr.

Anderson to the ground, he agreed the bruising to his hand could be consistent with falling on the rough pavement or gravel. [ 36 ] Cst. Jones stated that he was the passenger in the vehicle driven by Cst. Dyck. They received a report of five or six people assaulting a person on the ground. As they approached along 137A Street, he observed a group of males. He did not note females as being present. The males were on the east side of the street on the gravel close to the lane entrance. The males were Caucasian. They wore dark and light clothing.

As the officers approached and very near to the point they stopped, the group dispersed. Cst. Jones' attention focused on three males who ran up the lane eastbound. He got out of the car and ran after them up the lane. At that point, the three were spread out somewhat but all were visible to him. He chased them up the lane. The light diminished as he proceeded, but he was able to tell that two of the three turned off of the lane and struggled through a ditch and a hedge at the western edge of the second property, that is the Cameron property.

That location is marked with a circle on Exhibit 11, which is a print of the aerial photograph showing the laneway. [ 37 ] He chased the third male who ran on. That person wore a white tank top shirt. That third person turned into the same property at the point marked "X" on Exhibit 11. This individual was able to get past a fence and into the yard. Cst. Jones followed him into the yard. He saw that person run upstairs to the second deck of the Cameron home. The area was lit above the deck. He saw this person was wearing the white tank top, jeans and had short hair.

He estimated him to be five-foot-six and 160 pounds. He went through a doorway and shut the door. Cst. Jones ran onto that deck and kicked in the door. He heard a dog inside the home and so he did not enter. He shut the door and remained on the patio to secure the area. He said he remained there for about a minute. [ 38 ] He heard a radio report from Cst. Baldinger at the front area of the property. He went to the front of the house. He saw a male lying on the ground near the hedge at the front of the property acting as if he were asleep. This was Kyle Cameron. He was arrested and placed in Cst. Baldinger's car.

The clothing Kyle Cameron wore on arrest is seen in photographs 3 and 4 of Exhibit 4. He wore dark pants and a white t-shirt with an intricate design and several dark areas, front and back. Reddish lettering is visible front and back. Thereafter, Cst. Jones was aware of the arrival of a police dog and the arrest of Wesley Beaulieu in the adjacent property. He was then in the process of taking the dog master to the rear of the Cameron property to show him the entrance points of the three males from the lane. As they entered the backyard of the Cameron property, a woman was standing on the second floor patio.

At that point, Chad Cameron came out of the house onto the deck. He wore a white tank top and jeans. He looked like the third person Cst. Jones chased into the backyard who fled into the house. He was arrested. At this point, he said that he had been sleeping and did not know what was going on. He was in socked feet. He was walked in socked feet back to Cst. Dyck's police car and placed inside. Cst. Jones observed what appeared to be blood on the socks worn by Chad Cameron and they were seized. They were heavily soiled. [ 39 ] In cross-examination, Cst.

Jones agreed that he recorded Chad Cameron's height as being five-foot-ten, not five-foot-six as he gave in evidence. He also recorded his height at 168 centimetres. These notes were made some hours after the events occurred. It is also clear from cross-examination that a period of minutes passed between Cst. Jones' observation of a male in a white tank top entering the rear of the Cameron home and his attendance on the patio and his return there with the dog handler and the arrest of Chad Cameron as he came out of the house.

The times are somewhat uncertain but it would appear to be in the range of eight to ten minutes during which at least the rear area of that property and the Cameron home was not secured by police. [ 40 ] Cst. Baldinger attended the area at 1:30 a.m. in response to the dispatch. He approached eastbound on 101 Avenue from Whalley Boulevard. As he approached 137A Street, he saw a male running east on 101 Avenue. The male was about two houses beyond 137A Street. This is the only person that he saw in the area at that point. Cst.

Baldinger pursued this male who ducked into the property beyond the Cameron property and Baldinger lost sight of him. He came to a stop at that point in his vehicle. He got out and called for this person to stop. The male was at that point out of sight. He waited for a police dog to arrive which then tracked to a bush and located a male named Wesley Beaulieu, who was then arrested. Mr. Beaulieu wore dark jeans, a black t-shirt with the words

"Surrey What" on the front and tan shoes. [ 41 ] At 1:59 a.m., Cst. Baldinger dealt with Kyle Cameron who had been previously arrested. He observed what appeared to be blood on both of Kyle Cameron's shoes and they were seized. There is no evidence before this court linking this substance to the victim. [ 42 ] The clothing of all three accused was seized at the police station. In addition to the observations already noted, blood spots were observed on Kyle Cameron's t-shirt and blue jeans.

The suggestion of a blood-like substance on the Nike runners worn by Kyle Cameron is extremely hard to discern from an observation of those items as they were marked as Exhibits 15 and 16 on this trial. [ 43 ] The hands of all three accused were swabbed for DNA testing during the booking process. Exhibit 19 are admissions respecting DNA testing conducted on the socks taken from Chad Cameron, Kyle Cameron's t-shirt and the t-shirt and jean shorts worn by Reo Anderson. The victim, Mr. Mohammed's, DNA was not detected on any of these items.

There is no evidence before the court as to the outcome of any DNA testing of the swabs from the hands of the accused. No other DNA or forensic testing links any of the three accused to the victim. [ 44 ] The scene was examined and the location of various items were recorded in photographs marked in booklets, Exhibit 3 and 21, and on a sketch prepared by Cst. Cimaglia and marked Exhibit 22. On the street in the immediate area of the assault, a lighter, a watch, two beer cans, a pair of sandals and a set of keys were found. The presence of beer cans is consistent with observations made by Ms. MacDonald. Ms.

MacDonald also said she saw the victim's watch fall off during the assault. Although the watch observed here was not identified in evidence as his, it seems likely to have been so and is consistent with Ms. MacDonald's observation. The keys, on my review of the evidence, were not specifically linked to any particular vehicle. It is not established specifically who the sandals belonged to.

I note Elaine Janzen referred to one of the assailants wearing flip-flops with socks; however, the sandals present at the scene cannot be linked to any particular individual. [ 45 ] The Crown places some importance on a black left foot Nike runner found at the edge of the hedge at the rear of the victim's car. It is number 6 on Cst. Cimaglia's sketch and visible in photograph number 3 of Exhibit 21. The heel was crushed down, as if routinely worn as a slip-on type shoe by the owner.

What I conclude is clearly the right foot matching runner was found among the brush, fencing and debris bordering the rear of the Cameron property at the point Cst. Jones observed the first two of the three males he chased enter the rear of that property. The heel of that shoe was similarly crushed, as if worn as a slip-on shoe. The Crown asks me to conclude that Cst. Jones is mistaken in the heat of the events and that, in fact, the third male in the white tank top also entered the property at this point and it was he that wore those shoes, leaving one at the scene, as he tried to flee.

The Crown argues I should find that this was Chad Cameron. [ 46 ] I have carefully reviewed the evidence of the three civilian witnesses who made observations of the attack on Mr. Mohammed. I conclude that each attempted before this court to do their very best to describe the events with care and to provide as much detail as they possibly could. Their evidence must be considered in light of challenging circumstances under which their original observations were made. The events occurred at night. Although lighting was present, it is, to some degree, less than ideal. The events occurred suddenly, without warning.

They occurred rapidly. Five to six people at least were involved in the chaotic scene and with a flurry of activity occurring. The observers were traumatized to a degree by what they saw. This is evident certainly in the evidence of Ms. MacDonald and certainly in the voice of Elaine Janzen and in the transcript of her dialogue with the 9-1-1 operator.

It is entirely to be expected that their description of the precise number of people involved, the precise description of those people and their clothing and the movements of each, including the direction of their dispersal with police arrival, would be somewhat uncertain and inconsistent one with the other and with observations made by officers arriving and pursing the fleeing attackers who themselves are entering a challenging and chaotic situation with numerous people present. [ 47 ] The defence argues that Ms. MacDonald is not to be relied upon.

They point to her past drug use and past involvement with the crack house nearby. I find, however, that there is no basis to conclude that her evidence should be further filtered in this way. There is no evidence that she was using or under the influence of any substance that night. She gave her evidence in a forthright manner and her description of events, in my view, should be subject to the same scrutiny as any witness observing events in the circumstances I earlier described. There are some inconsistencies within her evidence and when her evidence is compared with others.

In my view, they are the sort of inconsistencies and uncertainties that one would expect of an independent witness suddenly confronted with the events at issue here. Similarly, the evidence of the Janzen’s must be considered with care because, in the flurry of chaotic events, they make some observations which are inconsistent or uncertain. Further, both were distracted to some degree, as I have earlier outlined. [ 48 ] What is not in dispute from the evidence of these witnesses is that a group of males attacked Mr. Mohammed.

The evidence of the observers is that this group numbered likely in the range of five to six. That number is consistent with the observations of Ms. MacDonald and Ms. Janzen during her call to 9-1-1. I accept the evidence of Ms. MacDonald that the attackers came from a group from the lane and that some carried beer. That is consistent with the presence of beer cans found on the street. The evidence established that all members of the group participated in the attack. That is the evidence of Ms. MacDonald and Elaine Janzen.

The descriptions of the clothing worn by the members of the attacking group are difficult to particularize. I accept that at least one person present wore a white sleeveless tank top type shirt but beyond that I conclude the descriptions of the clothing are general and lack the kind of particularization and the elements of uniqueness on the basis of which I could say associates them to any particular individual.

I note, in particular, that both Reo Anderson and Kyle Cameron wore particularly distinctive t-shirts in terms of the designs but none of the witnesses is able to describe those clothing items as present with a degree of detail sufficient to say it had to have been the shirt worn by one of those two people. Neither of the two police officers who first observed the group together described either of those shirts. [ 49 ] The evidence establishes that when the beating ended, one of the attackers dragged the victim by his ankles into the lane.

No one is able to give a compelling description of this person such that I could say that it was one of these accused. The descriptions are generally consistent with young male Caucasians with buzz-style haircuts and that is consistent with each of these three accused. The witnesses are uncertain as to the direction of flight of all members of the group, that is, their evidence varies. Police evidence, I accept, establish that three fled up the lane including a person wearing a white tank top. No other compelling descriptions are provided of those three people.

Although it is clear at least one female was present, that being Ms. MacDonald, not everyone noted her presence and so it is certainly possible that others with a role were able to be present and to filter out of you as events transpired and as police attended.

[ 50 ] I will address the case against Chad Cameron first. Other than his exculpatory utterance at the point of his arrest, there are no other statements or interviews before the court. There is no forensic evidence linking Chad Cameron to the attack on the victim. Although Cst. Jones said that the clothing Chad Cameron wore on arrest was what he saw the third person he chased to be wearing and that he knew Chad Cameron. He did not identify Chad Cameron as the person he chased. The evidence establishes consistently the presence of at least one male person among the attackers who wore a white tank top.

That general description fits the tank top worn by Chad Cameron on arrest and is consistent with the top worn by the third person chased by Cst. Jones into the Cameron home. Ms. MacDonald describes the second male who came from the group and spoke to her and another male as wearing a white tank top. Elaine Janzen described one of the males wearing a white muscle shirt, a black jacket, jeans and flip-flops.

It is this observation of flip-flops which the Crown argues I can find to be the black Nike runners with the crushed heels, one of which was found at the scene and the other at the point of entry to the Cameron property by two, and the Crown says, all three of the assailants chased by Cst. Jones. [ 51 ] The Crown extends this argument to say that the link to Chad Cameron is then made when he is seen coming out of the patio door wearing a tank top, blue jeans and socks without shoes and is arrested.

Chad Cameron had the sort of short buzz-cut hairstyle and is Caucasian, as was generally described by the witnesses and the first two police officers on the scene referable to all of those present. None of the witnesses is able to identify Chad Cameron as being present and participating in the assault and he denied his presence on initial arrest. I am not prepared to conclude the third person chased by Cst. Jones, in contradiction to his clear evidence, in fact, entered the property at the point the second Nike runner was found.

The constable was clear that two entered at an earlier point and the person wearing the tank top entered further on. That point is not where the second runner was found. It does not provide a link to Chad Cameron. [ 52 ] Further, there is no way of knowing who was in the house when the third male entered or who may have come or gone in the eight to ten minutes Cst. Jones was at the front of that house. The clothing items worn by Chad Cameron are sufficiently common and undistinguished that in these circumstances one cannot say it had to have been Chad Cameron who Cst. Jones chased from the scene.

Although one must be suspicious about the possible involvement of Chad Cameron in the attack on Mr. Mohammed, the high standard of proof required for conviction on a criminal charge is not met and I acquit Chad Cameron on this charge. [ 53 ] I will turn now to the Crown case against Mr. Anderson. I conclude from Cst. Dyck's evidence that Mr. Anderson was one of those in the huddle near the entrance to the lane as Cst. Dyck and Jones arrived at the location. The others ran, he did not. He was immediately arrested and taken to the ground by Cst. Dyck. In her evidence, Ms.

MacDonald said that, during the assault, one member of the group detached himself from the others and approached her, spoke to her, threatened her and then took her back into the street from the parking lot where he spoke with another member of the attacking group, this occurring just as police arrived. Ms. MacDonald does not identify this person but in direct evidence she said he was quickly arrested by police as they arrived at that point. The Crown says this evidence links Mr. Anderson to the assault. [ 54 ] The defence says Ms.

MacDonald's evidence becomes less compelling on cross-examination as to whether she actually observed that arrest, and therefore is unreliable in providing this linkage of Mr. Anderson to the assault. [ 55 ] In a statement to police, the transcript of which is Exhibit 28, Mr. Anderson described attending the scene of the assault from the Cameron residence where he and his wife had been visiting and drinking with his friends, the Cameron brothers, and others.

Initially, he said he did not participate in the assault but rather went across the street to where two women who had been at the party were and he tried to get them to go back to the house to get them away from the commotion, he said. As the interview continued, however, Mr. Anderson described a person trying to crash their party and that this person was being beaten up and he, Mr. Anderson, went across the street with the girls. The tenor of the interview to this point was that Mr. Anderson had no

part in the attack and was attempting to usher two women from their party away from the commotion and back to the house. At page 32, however, he introduced a third woman into the narrative. Quoting from the transcript of his interview, commencing at line 642: Q Okay. A And I just went out there. When I went out there, I just went and talked to the girl. Q Okay. A I think -- uh, I don't know if the girl was with him or what, who she was -- Q Okay. A -- but I think she was a Native girl -- Q Uh-huh. A -- uh, or maybe an East Indian. I can't remember what she was. Q Okay. And she had been at the party?

A No, this -- this girl -- Q She [inaudible - both speaking] -- A -- hadn't been. I was trying to get her to come to the party -- Q Okay. A -- while they were fighting that person.

Q Okay. A While -- while the group was fighting the person, I was trying to pick up the girl. Q Right. A I wasn't -- you know what I mean. I was trying to get her to get her to come to the house, her and Angel, and the other one. Q Okay. A And then, uh, it went -- and then, it -- uh, it -- we ended up going across the street while they were doing what they were doing. Me, the two girls, well, I don't really know what happened to the whole fighting thing causing me and the -- the three girls were across the street in between the two vehicles talking where the complex is. Q Right.

A And then like they decided they were going and I were going -- and I was like whatever and I turned around and I went to go back to the house and then a cop came and I just stopped there 'cause I wasn't, like I said, I didn't attack the guy. [ 56 ] Mr. Anderson's statement is initially exculpatory. Initially, he denied any role in the assault. As the statement proceeds, however, he describes his intoxication and he refers to blacking out. Commencing at page 50 of the transcript, the following exchange occurred, beginning at line 994: A But once I seen like I said I -- I maybe had kicked him.

Q Don't at this point -- A But once I seen what was going on, I stopped and I just -- I -- Q You know what? I'm not disputing that but you know what the power of a mob and the power of a crowd situation is overwhelming. A Yes, and I'd been drinking. It's just -- Q And -- and heavy drinking. And it's probably -- I'm not a big drinker myself so -- A And I'm not -- it's -- you know. Q But it's, you know, what probably manifested times ten, right? So -- so how many times do you think you ended up kicking him? A Like I -- I don't even recall kicking him 'cause, like I said, I did black out.

And when I do black out, I don't -- Q Uh-huh. A It's all I do into like a red -- everything goes red and I don't know what I'm doing or what's going on. And then once I snap out of it -- Q Uh-huh. A -- like I said, that's what I remember, I snapped out and I went and just stopped doing what I was doing and I went and seen the girls and then talked with them and tried to get them to go to the house. Q Uh-huh. A 'Cause I realized -- like I said, I snapped in and out, you know what I mean? Q Uh-huh. A Like -- like you said with the mob and everything happened. Q Uh-huh.

A I may have kicked him but as soon as I snap and realized, you know, what I mean, what the hell was going on -- Q It was kind of like, 'Oh, my shit moment.' A I, yes. Q 'What am I doing here?' A Yes. Q Guy's on the ground. A Yes, yes.

Q I, yeah. A And it was, that's all it was. I just snapped back into it and I was like, 'What the fuck are you doing? I don't wanna.' Q And you know what these things happen like that too, right? A Yes, I don't want to be part of that. Q Super quick. A But like I said, I don't -- I don't know who started the fight. Q Uh-huh. A I don't know me, I only remember, like I said, it's a known fact if like -- it's in my history and everything when I drink. If I drinktoo much, for some reason, I just -- I snap out of like -- snap in and out, you know what I mean. I go into a -- Q Uh-huh.

A -- into a blackout and then before I know it, I done something stupid. [57] At no point in this passage does Mr. Anderson make a clearly inculpatory statement that he delivered a blow to the victim. However, he asserts that when he drinks he is susceptible to blacking out, which I take to mean he is unable to recall events until hesnaps out of his blackout, realizes what is occurring to him or around him, and withdraws. That is the tenor of his description of eventson this night.

From this I conclude he asserts in this untested statement that he blacked out at some point and asserts to police he cannotrecall if he did anything or not. I view Mr. Anderson's denial of involvement and other comments at arrest in light of this laterdescription of his circumstances. [58] I do not know if there were two women from the party present in the area or not. I note Elaine Janzen refers to the presence ofwomen near her apartment. [59] There are contradictions in the evidence which might tend to link Mr. Anderson to the assault.

On the one hand, Ms.MacDonald said that the person who confronted her came from that group and, on direct evidence at least, she said that person wasarrested on initial police arrival, which would provide a chain of evidence linking Mr. Anderson to the assault. However, in cross-examination, she was confronted with her statement to police more proximate to the time of the events in which she describes a t-shirtmuch different than that worn by Anderson and says that he was shoeless when, in fact, Mr. Anderson wore runners, as Cst. Leckiestated. [60] It may be that Ms.

MacDonald is simply mistaken in her description. She was traumatized by what was occurring and sheacknowledged she did not watch everything that occurred. I note there was considerable movement of people and a somewhat chaoticscene. I note that Tania Janzen says some people moved to the side of the building. I could not conclude, bearing in mind thesecircumstances and considering Ms. MacDonald's description given to police, that on her evidence, Mr. Anderson is conclusively linkedto the attacking group. [61] Does his statement to the police strengthen the Crown's case?

That statement includes both inculpatory and exculpatoryelements. In assessing that statement, I am mindful of the direction provided by the Supreme Court of Canada in a case called R. v.Rojas where the following is set out at paragraph 37: Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception is relevanthere — the mixed statement exception.

Just as in England, it has long been established that where the Crown seeks to tender an accuser'sout-of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement, and the exculpatoryportions are substantively admissible in favour of the accused: R. v. Hughes, (SCC), [1942] SCR 517 at p. 521. Fairnessto the accused is the obvious rationale for the mixed statement exception.

The exception is also based on the more pragmaticconsideration that it is often difficult to determine which parts of a statement are inculpatory and which parts are exculpatory. (R.v.Rojas, 2008 SCC 56 , [2008] 3 SCR 111 at para 37) [62] In the course of its judgment, the Supreme Court of Canada adopted the following from the decision of Madam Justice Ryan inthe British Columbia Court of Appeal decision in R. v. David.

She stated the following: While an appeal court will look at each case to determine whether a like charge has led to an unfair trial, it is dangerous for a trial judgeto instruct a jury that inculpatory and exculpatory statements ought to be weighed differently. Trial judges should leave such “commonsense” arguments to the lawyers in their closing addresses. (R. v. David (2006), 213 CCC (3d) 64 2006 BCCA 412 at para 42) [63] I have analyzed Mr. Anderson's statement in detail, both at the scene and subsequently in interview.

I have already concludedthat there is not a compelling admission of involvement in the attack. He clearly was present. He has consistent descriptive markers,such as the haircut style. He was intoxicated to a degree. He encountered a female, not either of the two which he says he initiallyintended to attempt to return back to the house party. Arguably, that was Ms. MacDonald.

However, when I consider that herdescription of this person's clothing, lack of shoes and some resiling from her original evidence that this person was the first arrested atthe scene, and when I consider the chaotic circumstances occurring in the immediate area, I cannot be convinced beyond a reasonabledoubt that this person had to have been Mr. Anderson. Thus, I am uncertain on all of the evidence whether indeed the linkage from Mr.Anderson through Ms. MacDonald to the original attacking group is conclusively proven. The statement itself does not overcome mydoubt respecting him.

I remain highly suspicious of his involvement and I am not convinced of his truthfulness in speaking to police butI have a doubt which must be resolved in his favour and Reo Anderson is acquitted.

[ 64 ] I turn now to the Crown's case against Kyle Cameron. As is the case with Chad Cameron and Reo Anderson, no one specifically identified Kyle Cameron as being present and there is no forensic evidence linking him to the events. He meets several general descriptive markers, those being a young male Caucasian with a buzz-style haircut. No particularly distinctive item of clothing is described by the witnesses, which could be linked to the clothing he wore on arrest moments later in the front yard of his home.

He is found in the immediate vicinity in suspicious circumstances claiming to be asleep on his front lawn. The principle evidence against Kyle Cameron is the statement he gave to police. That transcript is Exhibit 30. That statement contains both exculpatory and inculpatory elements. In assessing that statement, as was the case with the Anderson statement, I am mindful of the direction provided by the Supreme Court of Canada in R. v. Rojas . [ 65 ] I must view the statement as a whole and in the context of all of the evidence. If the statement raises a reasonable doubt, Mr. Cameron has the benefit of that doubt.

In that statement, Kyle Cameron began by saying that he had no recollection, he blacked out and does not know what happened. The last thing he remembers, he says, was being in his backyard. He accurately then recalls being in his front yard when arrested. He then said he came home from work and began drinking beer when his friend, Reo, arrived. They drank heavily and smoked lots of weed. He recalled playing Bocce ball. He recalls pizza being ordered. He named other persons as being present. At a point that he says he was stumbling drunk, he heard screaming and yelling. Mr.

Cameron continued to deny any knowledge of what occurred. He attributes that to beer and the weed that he had consumed. At page 26 of the transcript, he first acknowledges some recollection. At line 17, he stated the following: Q You know, put the pieces together 'cause there's obviously pieces there. Tell me what you know. You don't know the whole story, fair enough. Put the pieces together for me. A I think I remember something going down in the back alley. Q Okay. A I remember a cop car come flying in my back alley. I know that. Q All right. A Fuck, I don't know, dude. Q Something went down in the back alley.

A I'm thinking so. Q Okay. You know there's more to it than that. Come on. A I, uh, fucking -- if I knew, I would tell you. I'd tell you if I shot somebody in the face. I'd tell you if I fucking smacked somebody in the face. I'd be honest with you, man. Q Right. So something went down in the back alley. What do you think went down in the back alley? A Well, obviously, a fight went down, right? [ 66 ] Kyle Cameron continued to deny knowing what specifically occurred and if he played a role. He said he remembered being arrested and the look on his mother's face.

The following exchange then occurred on page 30 of the transcript, beginning at line 11: Q What happened right before you got picked up by the cops? A Obviously, a fight. Q Okay. So tell me about the fight. How did you go from where the fight was to being picked up in your front yard by the cops? A Obviously, I fucking took off. Q Okay. Do you remember any of that? I think it's coming back to you. Tell me what you remember. A For some reason, I think I was helping Cody. Q Okay. A I don't know if that's the case or not. I don't know. Q All right. Helping Cody do what?

A I think somebody picked a fight with him or something. Q Right. A I don't know. I'm not a hundred percent on that. Q Okay. So tell me more about that. Tell me what else you remember. A I remember walking into a fight --

Q Okay. A -- in my back alley. Q Right. A I don't know what it was about. For some reason, I feel like I was protecting Cody. Q Okay. A I don't know, though. Q You said you walked into a fight. A In my back alley, yeah. Q Right. A Help my little buddy out. Q Right. What was going on that you needed to help him? A Obviously, he -- he was in a tussle. Fuck, I don't know. I don't know if that's how it played out but, fuck, I'm not fucking with you. Q And so when you, uh, walked into the fight, what happened? A I don't know.

I don't even know if that's how it went down. [ 67 ] He continued to deny any specific recollection. At page 33, line 19, the questioner put to him, "Obviously, you got in a fight with him." Mr. Cameron replied, "Yeah, clearly, fuck." He is not able to say why. He went on to say he thinks he just jumped in to help his buddies.

When asked who was involved in the fight, he said, "Obviously all of us were, right?" At page 35 he stated, "Obviously I jumped in to protect whoever, right, my buddies that was in the fight, right?" He then was asked how many people he was fighting and he said he thought there might have been a couple but he was not sure. He said the fight occurred in the back alley behind his house. As the interview continued, Mr. Cameron said that he remembered running outside. At page 39, the following exchange occurred: Q You're telling me right now, straight up, that you don't remember what happened next, what you did.

A Uh, no, I don't. I just came -- I remember fucking throwing somebody to the ground. Q Okay. A I remember throwing a couple of punches. Q Okay. A And like I said, it happened so fast. Q Yeah. A I never seen [inaudible] and I fucking just took off. Q And you didn't do anything in between? A I remember a couple of fucking punches. Q Right. A Throwing some dude down, that's about it. Q Okay. So you throw some dude down, throw a couple of punches and then what? A Then I fucking took off 'cause sirens -- I heard sirens coming. Q What happened with buddy? A I don't know.

I just darted and I was gone and I wasn't sticking around. Q Was he still moving? A I don't know. I wasn't sticking around to see that. Just gone, right, I don't want to get arrested. I fucking hope the guy's okay. Fuck. [ 68 ] I conclude that although Kyle Cameron denied any involvement and claimed to have no recollection of the events at the outset of the interview, as it progressed he came to the point that he admitted his participation in the assault.

The clear tenor of the entire interview, the reference to sirens approaching and his recollection of being arrested on the front lawn, which occurred moments later,

overcomes any concern that he is referring to a different event occurring in the lane involving more than one opponent. I conclude his admissions relate to the assault of Mr. Mohammed very near to the entrance of that lane on 137A Street. The interview progresses from a claim of no knowledge or involvement to an acknowledgment of awareness that something occurred to the point on page 39 of the transcript of a clear admission of participation in the assault of Mr. Mohammed. Although the interview continued for a short period thereafter, Mr.

Cameron did not resile from that admission nor is anything said which casts uncertainty on his involvement. He is unable to explain why the assault occurred but I am satisfied that statement constitutes ultimately an admission of his involvement. As it progressed, it overcomes any concern that he might be speculating as to whether he had a role or not, perhaps obscured by alcohol or pot. I am satisfied the exculpatory portions do not raise any reasonable doubt as to his involvement in the assault of Mr. Mohammed and I find Kyle Cameron guilty of this charge. (REASONS FOR JUDGMENT CONCLUDED)