R. v. Perrin, 2023 ABCJ 104

In the Alberta Court of Justice Citation: R. v. Perrin, 2023 ABCJ 104 Date: 20230505 Docket: 201285988P1 Registry: Calgary Between: His Majesty the King Crown - and - Troy William Perrin Accused Reasons for Judgment of the Honourable Justice A. J. Brown Judgment [ 1 ] Mr. Perrin is guilty of two assaults committed on December 9, 2020, and not guilty of the mischief offence. Trial Evidence [ 2 ] Seven witnesses were called by the Prosecution, some of whom were subpoena ed at Mr. Perrin’s request and produced largely for cross-examination. A brief

summary of the testimony of these witnesses follows. Joshua Zhivago and Daniel Krysak were security guards with SERT Security on December 9, 2020, on duty at a lot owned by Trico Homes; they were both assaulted by Mr. Perrin, after he had thrown a rock through the back window of a contractor’s pickup truck. The assault on Mr. Zhivago consisted of a punch to the face with a large rock; on Mr. Krysak, it was a bite to the right forearm.

Robert Anderson was an employee of Wire Construction; he described his work setting up fencing around a construction site on the lot and seeing an individual, whom he could not identify, throw a rock through the window of his company’s truck. Although he heard of a physical altercation, he did not see one. Kevin Klym was employed by Calgary Stampede Security. On routine patrol, he observed Mr. Perrin walking toward the lot on which the Wire Construction contractors were working. Knowing that, over the preceding few weeks, there had been complaints about Mr. Perrin trespassing on the lot, Mr.

Klym drove over and alerted Mr. Zhivago and Mr. Krysak to Mr. Perrin’s approach. After delivering the message, he continued on his way, only to return a short time later when he heard a Calgary Police Service dispatch to the lot. This time, he was flagged down by one of the contractors and found Mr. Krysak and Mr. Perrin grappling together on the ground, and Mr. Zhivago lying on his back nearby, unconscious. Mr. Klym then assisted Mr. Krysak to gain control over Mr. Perrin and detain him for the arrival of the police. Mr. Klym did not notice any property damage.

Cst. Edelman responded to a trespassing complaint. He saw a motor vehicle with a broken window, Mr. Zhivago’s bloodied mouth, and a clear bite mark on Mr. Krysak’s right forearm. He assisted another police officer in taking Mr. Perrin into custody. Cst. Entwistle arrested Mr. Perrin, observed the bite mark to Mr. Krysak and took a witness statement from Mark Oness of Wire Construction. Mark Oness of Wire Construction had been working at the site for about a week, and in that time had had four or five problematic encounters with Mr. Perrin. On this occasion, in defiance of the security guards’ orders to leave, Mr.

Perrin approached and began throwing rocks. One rock smashed a vehicle window; another struck Mr. Zhivago in the face, although whether by a throw or a punch, Mr. Oness could not say. [ 3 ] Mr. Perrin took the stand in his own defence and read into the record an Incident Report (Exhibit 9) and a Testimony document (Exhibit 10). In the Incident Report, Mr. Perrin asserted that the lot had been in his and his regiment’s possession for three months and described the altercation with the security guards as a fight that ensued when he attempted to recover his building supplies and other personal property.

He signed off as “General T. Perrin, Federal Army Officer to the Canadian Military, C.O. of the Royal Canadian Infantry Guard (R.C.I.G.)” although, in the body of the report, he gives his rank as Major, and in the Testimony document, as Lieutenant General. The Testimony document reads more as an argument but does contain a speculative explanation for Mr. Zhivago’s and Mr. Krysak’s injuries. In Mr. Zhivago’s case, Mr. Perrin suggested, “. . . maybe Joshua bumped his face . . . on the side of the trailer while trying to pull me over the side.” In terms of the alleged bite on Mr. Krysak’s arm, Mr.

Perrin described the injury as more of a scratch that “. . . could have happened while he was throwing me out of the side of the trailer.” As for the smashed pickup truck window, Mr. Perrin believed, since there was no confirming photograph of the damage, that it was already broken before the events of December 9. When cross-examined, Mr. Perrin denied the assaults and the breaking of the truck window. The Trial Process [ 4 ] In a criminal trial, the prosecution must prove guilt beyond a reasonable doubt.

This is a high standard and much higher than the civil standard of a balance of probability, or, more probably than not. Still, it is not proof to an absolute certainty. [ 5 ] Criminal cases are investigated by the police who interview witnesses and collect any available physical or documentary evidence. [ 6 ] A trial is an exercise in recreating events that happened months and even years earlier, and this largely through the experiences and observations of witnesses.

The accuracy and reliability of witnesses’ testimony is affected by a host of factors, both environmental (distance, lighting, passage of time, noise, etc.) and personal (eyesight, memory, education, language, impairment, etc.). The interplay of these factors may result in an honest witness being mistaken, or an otherwise unreliable witness being corroborated in important details and thereby providing reliable evidence. [ 7 ] In some trials, and Mr. Perrin’s was one, not every possible witness is located, interviewed, and called to give evidence.

The prosecutor decides on the witnesses necessary to prove the case and the trial is therefore decided on the basis of the admissible evidence called. Findings of Fact [ 8 ] On the basis of the evidence called in this trial, I find the following facts. [ 9 ] On December 9, 2020, Trico Homes owned a bare lot across from the Calgary Stampede grounds. There was a sales centre on the lot, for the planned eventual development of the property. The rest of the property had been serving for some time as a parking lot. [ 10 ] Neither Mr. Perrin nor his regiment had any lawful claim to the property, although Mr.

Perrin had been accumulating and storing building supplies and other belongings for some weeks before. [ 11 ] By December 9, Trico had closed the sales centre and arranged for security fencing around the property, to begin excavation and construction of the new building. [ 12 ] Wire Construction was the contractor engaged to clear the lot in preparation for the start of construction. As part of the lot clearing would involve removing Mr. Perrin’s possessions and the contractors had had several confrontations with Mr.

Perrin in the weeks previous, Trico also engaged SERT Security to watch over the lot clearing. [ 13 ] Around 10:45 am, Mr. Klym, who had been patrolling in his Calgary Stampede Security vehicle nearby, stopped by to alert Mr. Zhivago and Mr. Krysak to his sighting of Mr. Perrin heading to the lot. Having delivered the message, Mr. Klym continued on his way. [ 14 ] Soon after, Mr. Perrin did enter the lot through a gap in the fencing on the northwest side of the lot. [ 15 ] Mr. Zhivago approached, warning Mr. Perrin that he must leave as the lot was private property. Mr.

Perrin threw fist-sized rocks at the contractor’s truck and, ignoring Mr. Zhivago’s repeated warnings, ran toward him and struck him in the face with a rock. [ 16 ] At first, Mr. Zhivago, a very large man at the time, seemed unaffected by the blow but moments later fell unconscious to the ground.

[ 17 ] Mr. Krysak moved in to detain Mr. Perrin, who responded aggressively. Mr. Krysak took Mr. Perrin to the ground and struggled to handcuff him and bring him under control. In the course of the struggle, the two moved part way under the pickup truck and Mr. Perrin bit Mr. Krysak’s right forearm. [ 18 ] Mr. Oness called 911 when Mr. Zhivago was struck. [ 19 ] Mr. Klym returned to the scene when he heard the police dispatch. Arriving before the police, he helped Mr. Krysak bring Mr. Perrin under control. As Mr. Krysak and Mr. Klym were about to lodge Mr.

Perrin in the Stampede Security vehicle, the police officers arrived and took Mr. Perrin into their custody. Analysis [ 20 ] Mr. Zhivago gave a clear and accurate account of the incident. His description of how Mr. Perrin struck him is corroborated by Mr. Krysak and Mr. Oness. Mr. Klym confirmed that Mr. Zhivago was unconscious on the ground. The injury to Mr. Zhivago’s face is shown in Exhibit 4 and was observed by Cst. Edelman. [ 21 ] Mr. Krysak’s account largely tracked Mr. Zhivago’s, with the addition of a series of photographs Mr.

Krysak produced on the first day of trial; those photographs were eventually marked as Exhibit 3, after a three-month adjournment to the second day of trial. Exhibit 3, when first offered, contained photographs taken on different days, not in sequential order, duplicates and inconsistently oriented. Exhibit 2 was the “cleaned up” photograph book, with the photographs sequentially displayed, each one with the same orientation. Exhibit 2 includes images of the contractors’ pickup truck but does not show the smashed window.

Exhibit 3 includes a photograph of a large rock and a smashed window in a John Deere vehicle; this photograph was taken on a day other than December 9. [ 22 ] The absence of a photograph of the alleged damage to the window of the pickup truck, in the face of the documented damage to a different vehicle on a different day, gives rise to a reasonable doubt that Mr. Perrin committed the mischief offence on December 9 of which he is accused. Because there had been repeated, similar incidents with Mr.

Perrin in the weeks leading up to December 9, I conclude that the witnesses who described the damage to the pickup truck as occurring that day may have been inaccurate in their recall, having confused it with a similar, earlier event. [ 23 ] The bite to Mr. Krysak’s arm was confirmed by both police witnesses and is shown in Exhibit 4. [ 24 ] The evidence of Mr. Anderson was inaccurate. This is unsurprising as he was first asked to give an account of events more than two years after December, 2020.

I conclude that his testimony amounted to his memory of a series of incidents of similar nature over a number of weeks. As to his account of December 9, it is insufficiently precise to be reliable. [ 25 ] Mr. Perrin gave evidence. His defence rests on a denial and on an assertion that the Crown witnesses have colluded and conspired against him. I reject Mr. Perrin’s evidence entirely. There is no evidence to support any colour of right argument in respect of his occupation of the Trico Homes lot, nor of any conspiracy among the contractors, security guards and police to accuse him falsely.

Conclusion [ 26 ] Having rejected Mr. Perrin’s account, I conclude as follows: The assaults on Mr. Zhivago and Mr. Krysak are proven beyond a reasonable doubt, both having been corroborated by accurate and reliable witnesses. The mischief offence, being the damage to the rear window of the pickup truck, has not been proven beyond a reasonable doubt. There is no photographic evidence of damage to the pickup truck, although there is photographic evidence of damage to a different vehicle, from a different day. The witnesses were honest but mistaken in their accounts of that part of the events of December 9, 2020.

Heard on the 5 th day of December, 2022, the 21 st day of March, 2023, and the 14 th day of April, 2023. Dated at the City of Calgary, Alberta this 5 th day of May, 2023. A. J. Brown A Justice of the Alberta Court of Justice

Appearances: B. Walsh, G. Haight, KC for the Crown Himself for the Accused