2019 MBPC 5, 2019 MBPC 5

Citation 2019 MBPC 5 THE PROVINCIAL COURT OF MANITOBA (Winnipeg Centre) BETWEEN Her Majesty the Queen ) M. Serbin for the Crown ) - and - ) ) JUSTIN PETER KARPLUK ) P. Smith and C. Olson for the Accused ) ) Judgment delivered January 31, 2019 ) M.P. Thompson, P.J.

Introduction [ 1 ] This case gives rise to the thorny issue of eyewitness identification, where twins are involved. [ 2 ] I will refer to Justin Karpluk as the “Accused” to avoid confusion because he has a twin brother. [ 3 ] The Accused and his father both testified at trial that it was the Accused’s brother, Connor Karpluk, who committed the offence in question. The Defence argues this was a case of mistaken identity or at a minimum one, which raises a reasonable doubt as to identity. [ 4 ] The Accused is charged with committing aggravated assault on Mr. Jeffrey Wood during an incident of road rage while Mr.

Wood and his wife were departing the Centennial Concert Hall, after a performance of The Sound of Music. Mr. Wood had purchased tickets as a Christmas gift for his wife. They had never been to a play before and The Sound of Music was her favourite. [ 5 ] What was expected to be a memorable evening outing did not end well. It is not disputed Mr. Wood was badly injured by a punch to his jaw that felled him to the ground and knocked him unconscious. The trial evidence pointed to only two persons that could have struck this blow: the Accused, or his 20-year-old twin brother, Connor Karpluk. [ 6 ] Mr.

Wood’s injuries were severe and included a triple fracture of his jaw, a concussion and swelling to the top of his head. Emergency surgery was required to repair his jaw with two metal plates inserted to stabilize it. His jaw was wired shut for two months. His bite still does not match up and a great deal of dental work will be required to restore his bite. He will be wearing orthodontic appliances until next July and further surgery is required to realign his jaw. He has difficulty sleeping due to pain every night. [ 7 ] Defence counsel conceded that Mr.

Wood’s injuries constituted an aggravated assault as defined in s. 268 of the Criminal Code : an assault that wounds, maims, disfigures or endangers life. [ 8 ] It is agreed that date, time and jurisdiction are not in dispute. The incident occurred on January 6, 2018 at 11:05 p.m. in Winnipeg, Manitoba. It is also agreed that Justin Karpluk, the Accused in the Courtroom, was the person named in the Information before the Court. Overview [ 9 ] After the performance at the Concert Hall ended, the pick up and drop off area for cars was highly congested. Mr.

Wood and his wife waited outside on the steps of the front entrance for their son to pick them up in the family vehicle (the Equinox). They pre- arranged for him to pick them up after the concert at a set time. Because westbound traffic on Market Street blocked the entrance to the Concert Hall, the Equinox waited with turn signal on, eastbound on Market Street just east of Main Street. The Wood’s could see bumper-to-bumper traffic blocked the Equinox from entering the designated pick up area, so they walked to the Equinox on Market Street. [ 10 ] As their son was not comfortable driving in heavy traffic, Mrs.

Wood slipped into the driver’s seat as her husband and son made their way around the back of the Equinox to enter the passenger side doors. [ 11 ] At the same time, John Karpluk (Mr. Karpluk Senior) and his twin 20-year-old sons, the Accused and Connor Karpluk were inside Mr. Karpluk Senior’s white Mercedes Benz (the Mercedes), parked on Market Street in the eastbound curb lane. They were just

departing from their parking space having celebrated a late birthday dinner nearby. [12] The Equinox was stopped in traffic and blocked the Mercedes from leaving its parking space and entering the eastbound laneof Market Street. [13] Mr. Wood did not have enough room to open and enter the passenger door on the Equinox so he asked his wife to pull forwardto make more room. [14] Mr. Karpluk Senior, driving the Mercedes, became impatient and honked his horn two separate times. When Mr. Wood camearound the side of the Equinox next to the Mercedes, Mr.

Karpluk Senior rolled his window down halfway to express his frustration. Words were exchanged. By most accounts, Mr. Karpluk Senior told Mr. Wood to “Move your fucking car”. [15] In response to that comment, Mr. Wood tapped or slapped the driver’s window of the Mercedes with his glove, then placed hisleft hand on the window pillar and right hand on the roof of the Mercedes and leaned towards the window with his head lowered to thedriver’s level. He said something to Mr. Karpluk Senior.

It was not clear from the evidence if he used profanity, but he expressed hewas trying to move the Equinox. [16] A number of people, who were present, described what happened next from their perspective. This event escalated rapidly andunexpectedly in the middle of a traffic jam. Unknown to the witnesses, there were 20-year-old twin brothers present. [17] After being injured and because Mr. Wood required immediate medical attention, his wife and son did not remain at the sceneto provide statements to the Exchange Biz District (EBD) patrol officers.

Instead, his family took him straight to the Emergencydepartment of the St. Boniface Hospital. All of this made for a confusing start to this investigation by the EBD patrol, who do not havepowers of arrest. Legal and Factual Issues [18] The issue of identity is one that will turn on findings of credibility and context. The Crown’s evidence was problematic whenit came to in-court identification. Of the Crown witnesses, only EBD patrol officers Sawatzky and Donald were able to point out theaccused in courtroom as the perpetrator.

Even then, patrol officer Sawatzky admitted on cross-examination that she had identifiedanother person in the courthouse hallway as the perpetrator. We know that person could not have been the accused, who was incustody. Patrol officer Donald did not actually see the blow land. [19] Has the Crown proven identity by other means through piecing together evidence of the perpetrator’s location and demeanourat the scene as these events unfolded? [20] Because the Accused testified at his trial, I am guided by the framework of Justice Cory’s decision from the Supreme Court ofCanada in R. v.

W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), which identifies a three step process to ensure thatthe trier of fact remains focused on the principal of reasonable doubt, when an accused testifies; [21] First, if you believe the evidence of the accused, obviously you must acquit. [22] Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. [23] Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [24] I will now analyze the testimony of the key witnesses.

Crown Witnesses: [25] Mr. Wood, despite facing the Accused, did not see who struck him due to being rendered unconscious from the blow. [26] Mrs. Wood did not see the blow or who struck it, but she did witness the aftermath. [27] After hearing yelling, screaming, and seeing that no one was getting in the Equinox, Mrs. Wood got out and walked around theback of it. She saw the driver of the Mercedes, Mr. Karpluk Senior, whom she accurately described.

He was standing at the driver’sside door of the Mercedes pointing at her husband yelling, “He did it, it was his fault, it was his fault, he did it.” Her husband, Mr.Wood, was laying unconscious on the ground with blood coming out of his mouth. (Transcript Vol 1 p.27 ll. 14-18) [28] She also saw a young male on the passenger side front of the vehicle. She described him as being “…wired for sound. He wasbounding on his feet and he said, “he was going to break my Dad’s window.” (Transcript Vol 1 p.28) [29] Both the Accused and Mr.

Karpluk Senior testified that the Accused was the front seat passenger and I accept that as a fact. [30] Mrs. Wood saw a third person on the passenger side rear standing inside the door but standing up. In stark contrast to thedemeanour of the male who was “wired for sound”, she described this third person as very quiet and that he said nothing. [31] Their son, Jared Wood, testified that someone ran past him and took a swing at his father. He cannot identify who it was. [32] Kristen Sawatzky, an EBD patrol officer (patrol officer Sawatzky) was on duty and arrived at the scene, as it was unfolding.

She had the best view of what occurred. She saw the front-seat passenger, exit the Mercedes and throw a punch that connected with Mr.Wood. [33] Patrol officer Sawatzky testified:

A So, when they exit I saw the, the male who exited from the front passenger side come around and that's when I knew something wasn't right. So I started running to -- Q And why did you think something wasn't right? A He got out of the vehicle very, very fast, very aggressively, it was kind of like I have, I have a mission and I'm going, I'm going to do it kind of thing. So, there was just kind of an aggressive tone to his body language. So that's when I started running towards just general area. As I was running I yelled to stop, get back in the vehicle.

That is when the male from the front passenger seat struck the older male, who would've been the passenger from the Chevrolet Equinox, in the face. Q And can you describe when you say "struck" what, what do you mean? A Closed fist, punch to the face. Q Okay. Did you see any weapons? A No, I didn't. Q All right. What did you do at that point? A So, when I got, when I, when I got on scene I kind of put my body between the two. The male was already on the ground because he fell backwards from the punch. I put my body between the two individuals.

I instructed my partner to make sure that the male who struck the other male didn't leave. [ 34 ] During direct examination, patrol officer Sawatzky identified the Accused, in the prisoner’s box, as the person who had committed the assault. [ 35 ] On cross-examination, patrol officer Sawatzky agreed that she had identified a person in the hallway outside the courtroom as the person who committed the offence. Unknown to her, the Accused was in custody and could not have been in the hallway. The name of the person she mistakenly identified was never revealed.

The Court did establish that the Accused’s twin brother Connor was in the Courtroom hallway on the day in question. [ 36 ] On cross-examination patrol officer Sawatzky testified: BY MS. SMITH: Q Someone gets out of the rear driver's side door? A Correct. Q Is standing there and that's where the victim and everyone else is standing as well; is that correct? A Correct, yes. Q Okay. So, and then someone comes out of the other side and comes around the car? A Yes, correct. Q Okay. And you, do you actually see a punch connect or just see the guy go down? A I see the punch connect. Q Okay.

And all three men are standing there at that point; correct? A The one male, after the punch the one male was on the ground and the male who, the, who exited out of the back seat passenger had left already at this time. Q Okay. So, the person that gets out of the back -- A Yes. Q -- the back seat behind the driver is only standing there for a few minutes? A Yes. Q Okay. And this is around the time the punch takes place, though? A Correct. Q And then he runs off? A Correct. Q Okay. And the other person sticks around? A Correct.

Q The other younger fellow? Okay. Now, today when I spoke to you outside of court I asked if you saw the assailant outside of the court and you said you did; correct? A Yes, I did, yeah. Q Okay. And you pointed out someone in the courthouse that's not this fellow; correct? A That's correct, yes. Q As the person that you saw assault the person? A That's correct. Q Okay. THE COURT: When you say "this fellow" you're referring to the prisoner in the prisoner's box? MS. SMITH: Yes. THE COURT: Okay. BY MS. SMITH: Q Okay. So when you pointed out someone earlier you pointed out somebody else as being the assailant?

A That would be correct, yeah. Q Okay. I'm suggesting to you, Ms. Sawatzky, that you can't tell really who hit the complainant because there are three people in close proximity, two who look very much alike and the victim; is that correct? A That would be correct. Q Okay. So it's hard to say who did what, but the guy went down? A That is correct. MS. SMITH: Okay. Thank you. Those are my questions. RE-EXAMINATION BY MS. SERBIN: Q I do have one question on redirect and it's with respect to that last question.

There's the three individuals and you just answered you couldn't tell who hit the complainant, did you see someone hit the complainant? A Yes. Q Okay. And that person that you saw hit the complainant is that the person you've indicated that stayed on scene with your partner? A Yes, that's correct. Q Okay. So out of those three individuals can you tell who hit the complainant? A Yes. MS. SERBIN: Okay. [ 37 ] It is essential that the context of this cross-examination is fully understood. [ 38 ] Patrol officer Sawatzky was being cross-examined about pointing out someone else at the courthouse as the assailant.

She was being cross-examined on the point that at the scene was the victim and two people who looked very much alike. [ 39 ] I find she truthfully answered she could not identify which of the two men at the Courthouse hit the complainant. [ 40 ] However, on re-direct, she confirmed her testimony that she did see who struck the blow. She was consistent that the front-seat passenger punched the victim and that he remained at the scene.

Despite her difficulty making an in-court identification, she did confirm and I make a finding of fact that she did see which individual struck the blow. [ 41 ] Further, her description of the front-seat passenger exiting the Mercedes: “He got out of the vehicle very, very fast, very aggressively, it was kind of like I have, I have a mission and I'm going, I'm going to do it kind of thing. So, there was just kind of an aggressive tone to his body language. So that's when I started running towards just general area. As I was running I yelled to stop, get back in the vehicle”

This is compelling evidence as to a violent demeanour of the Accused. She ran towards the scene. She knew instinctively from what she was seeing that trouble was coming. [ 42 ] I accept that immediately after the punch, she got between the victim on the ground and the person she saw strike him. She instructed her partner, Benjamin Donald to ensure that person did not leave the scene. He complied with that instruction and the Accused remained on scene at his direction. [ 43 ] There is no issue as to who remained on scene.

Both Justin and John Karpluk confirmed through their testimony: the Accused remained at the scene. [ 44 ] Benjamin Donald, an EBD patrol officer (patrol officer Donald) was patrol officer Sawatzky’s partner and arrived at the scene, as it was unfolding. [ 45 ] Patrol officer Donald testified as follows: Q So earlier, when we were just talking a minute ago, you said you see both of these individuals exit the vehicle and attack, right, that's the word you used? A Yes. Q Can you describe that in more detail? A It was fist, closed fist motions in a downward kind of like this.

Q Like you're making a punching motion with a -- A Yes. Q -- closed fist? A Yes. Q Okay. And who's making this motion? A The individual who came from the drive, or passenger front of the white Mercedes. [ 46 ] Further, patrol officer Donald testified: Q So you say he's making a punching motion? A Yes. Q Okay. Do you see him make contact with anything or anyone? A No. Q Okay. And then is, the second individual that you're talking about, does he make any motion that you see?

A Yes, it was, it was about, a bit of a flurry, but like I would, I would say yes, but, but I, it would be an assumption, I mean, it was very much a, his back was towards me as I, as I was approaching. Our concern was the male at this point was, was on the, the ground. Q And this is the older male? A This is the older male from the Equinox, was on the ground at this point. He was our main concern, so we kind of, yeah, disregarded I guess at that point. Q Okay. So the second individual who exits who you don't, you can't describe; right? A No. Q You don't actually know if he did anything; is that fair to say?

A I don't. I don't. Q Okay. You were just assuming? A Yes. [ 47 ] Patrol officer Donald testified they were approximately 10 to 20 feet away and arrived within 3 to 4 seconds of the two men exiting the Mercedes. Patrol officer Sawatzky placed herself between Mr.

Wood who was unconscious on the ground and the male who exited the passenger front seat of the Mercedes. [ 48 ] Patrol officer Donald took control of the person in front of patrol officer Sawatzky, as directed and escorted him to the sidewalk. [ 49 ] Patrol officer Donald described that the Accused had an aggressive, angry demeanour when first encountered on scene, but that

changed greatly when dealing with the EBD patrol officers. The accused was polite and not aggressive towards them. Patrol officer Donald at that point heard the accused say, “We should get out of here.” [ 50 ] On cross-examination, patrol officer Donald testified he saw the front-seat passenger of the Mercedes make a punching motion with a closed fist but did not see contact. The second male who had his back to him had a raised arm. He did not see him make a blow and could not say definitively which male hit the victim: Q Okay. All right.

And these two fellows that you saw both got out of the car rather aggressively and headed over between the two cars? A Correct. Q Okay. A Yes. Q Whether it was, whether the one came from behind the driver or came from around, what you recall is seeing these two men behaving somewhat aggressively? A Yes. Q Okay. The person who came from the back seat had his back to you? A Yes. Q Okay. And you originally said they both attacked this fellow and in your, your notes or your incident report you said the men attacked the fellow; correct? A Yes. Q Because it would appear that they were both doing something? A Yes.

Q Okay. A There, there was movement that they, they were (inaudible) -- Q Okay. So I'm going to suggest to you that in fact the back seat passenger punched the victim, the victim went down and the back seat passenger took off? Could that be what happened? A No. Q But you didn't see what, exactly what he did? A I did, I did see swinging. Q You did see swinging or you -- A Yes. Q Okay. A Yes. But, like I said, the, I was on the opposite side of, of the individual -- Q Okay. So you -- A -- from the -- Q -- couldn't see if he connected with him? A Right. Q Okay. A Right, I was on the opposite side.

I did see motions towards the body in, in a closed fist manner. Q From the back seat guy? A From the front seat, front seat. Q But from both of them? A Um-hum.

AND… BY MS. SMITH: Q Sorry, you saw the back seat passenger also swinging at the victim; correct? A From, from what I could tell from behind there was a raised, raised arm motion. Q Okay. A Yes. Q And shortly after that, that back seat passenger ran off? A Yes. AND… Q Okay. So when you -- when I suggested to you that the, the fellow had hit him, the reason you said no was because you just don't know really who did the damage; correct? A Yes. [ 51 ] EDB patrol supervisor Paul Ciarelli testified: Q Okay. And, and so you say that you see him go around the white Mercedes; is that right? A Yes, that's correct.

Q And you yell at him just don't get in the vehicle? A I verbally says, Do not get back in that vehicle, do not get back in that vehicle. Q And why do you do that? A At that point when I heard the comments, Dad, dad, we got to get out of here, it was just my professional judgment at the time that this could be somebody involved in this incident. AND… A I present myself to the young gentleman and I, I state who I am with the Exchange patrol. I say do not get back in that vehicle, I need to kind of figure out what is going on here. The young gentleman is actually being very cooperative with me at the time.

You can tell he's, the adrenaline is rushing, he's kind of trying to catch his breath, trying to catch his breath. [ 52 ] Patrol supervisor Ciarelli, described the demeanour of the Accused; adrenaline rushing, trying to catch his breath. This is consistent with Mrs. Wood’s description of a young man who was “wired for sound and bouncing on his feet” and patrol officer’s Sawatzky and Donald description of the accused’s demeanour of someone who was aggressive. The Accused’s Testimony [ 53 ] The accused took the stand and testified in his own defence. [ 54 ] He described that Mr.

Wood was trying to get into a vehicle, while they were trying to exit their parking space and that Mr. Karpluk Senior hollered at him through his partially rolled down window to “get the fuck out of the way.” [ 55 ] The transcript illustrates the Accused’s evasiveness when he testified about what happened next: A I got out the car and I originally was going to go up to the man, but by the time I got there he was, it had appeared, I don't want to get anyone in trouble, but it appeared that my, the guy in the back, which is my brother, it appeared that he most likely hit him, and he was unconscious.

I mean, I don't want to get anyone in trouble, but ... THE COURT: You know what, I just want you to tell the truth and tell, tell us what you saw. THE WITNESS: It appeared that he had come out and hit him. It could've been, it could've been either one of them, but it appeared it was him, and he ran away after. [ 56 ] And further And then he's unconscious? A Um-hum. Q Did you see who, or what had -- A I think --

Q -- happened to make him unconscious? A I think so, yeah. Q And what did you see? A Pretty, pretty sure it was, pretty sure it was my brother, but not a hundred percent probably. Q Okay. MS. SERBIN: Sorry, I can't hear, I'm sorry. MS. OLSON: Yeah. THE WITNESS: It was probably, could've been him most likely. [ 57 ] And on cross-examination: Q Okay. And, and you've just told us now that your brother punched him? A Pretty sure. Q You're pretty sure? A Well, must've been, must have been. Q Did your dad punch him? A I don't think so. Q But you don't know? A Probably not. Q Did a random other person punch him -- A No.

Q -- that was walking in the area? A No. Q Was it your brother? A Pretty sure. Q Okay. And why are pretty sure of that? A Because he ran away. Q But you didn't see your brother do anything? A Most likely it had to have been, I don't know who else would've did it. [ 58 ] I find Justin Karpluk’s evidence was noncommittal and evasive. He did not describe his brother’s actions, glossed them over and had to be repeatedly asked by his own counsel on this issue. [ 59 ] The Accused also demonstrated animosity towards the victim when testifying: Q Mr.

Karpluk, we left off yesterday, you indicated that your brother, Connor, had hit the gentleman that fell down by the, who was by your dad's window; is that right? A Most likely, yes. Q Most likely. Okay. A I can't tell for certain, but you only assume, because I never touched that fucking guy. [ 60 ] Those comments come in context of a victim who has not identified the Accused as the suspect, who testified that he did not see who punched him and one who described to the Court the life changing injuries he suffered from being struck. [ 61 ] This continued animosity corroborates the Accused’s anger at Mr.

Wood, which led him to strike him in an unjustified belief that Mr. Karpluk Senior was being attacked. John Karpluk Senior’s Testimony

[ 62 ] The twins’ father, Mr. Karpluk Senior, testified that he saw the Accused’s twin, Connor Karpluk, deliver the punch to Mr. Wood. This was the first time he volunteered this crucial information, which if credible would clear the Accused. [ 63 ] There are several reasons to question the credibility of Mr. Karpluk Senior. During his direct examination, he first admitted to probably swearing at Mr.

Wood: “I told him to -- I probably swore at him to eff off.” (Transcript Vol 2 p.18 ll. 16-17) [ 64 ] Later, during cross-examination it was put to him: Q And I'm going to suggest to you that when this car was blocking your way, before this individual who you've described as the unshaven man knocked on your window, you say to him, move your fucking car? A I don't recall saying that to him. (Transcript Vol 2 p. 21 ll. 23) [ 65 ] We know from the Accused and other witnesses that Mr. Karpluk Senior swore at Mr. Wood to “move his fucking car”.

I find that he was coloring his testimony to make himself look in a more favourable light. [ 66 ] Winnipeg Police Service followed up a written report they received from EDBP. They requested Mr. Karpluk Senior provide a statement. He deferred to seek legal advice and did not return the request. A warrant issued. The Accused turned himself in and was arrested on Feb 5, 2018. He has remained in custody since that date. [ 67 ] Mr. Karpluk Senior also testified that he exited the Mercedes before the blow was struck: Q And what happens when you open your door?

A When I opened the door, I get out of the car, he does move away slightly, and at the same time my son Connor, who was in the back seat, he gets out. I -- when I'm standing there, I actually feel him brush against me, and that's when he struck the individual, punched him. And then the individual fell to the ground. [ 68 ] Only the Accused and Mr. Karpluk Senior gave evidence that Mr. Karpluk Senior exited the Mercedes before the punch. The only other witness to place him outside the Mercedes was Mrs. Wood who saw him outside, but after her husband was unconscious on the ground. On this point I find Mr.

Karpluk Senior and the Accused’s testimony to be inconsistent with the evidence of patrol officers Sawatzky and Donald who were running to the scene as it unfolded and arrived immediately after the aftermath of the punch. The evidence of the Accused and Mr. Karpluk on this point is not credible. I find he was not out of the Mercedes until after the blow was struck. [ 69 ] Mr. Karpluk Senior’s testimony that he let his son Justin Karpluk sit in jail for 9 months, wrongly fully accused is not credible. His testimony illustrates this: Q So you did see who hit him.

And then at that point you and Justin stay; is that right? A That's correct. Q Do you say to anybody, I have twin boys and it's my other son that, that hit this gentleman? A No. Q No? A No. Q Why not? A At that time I, I felt like, to be honest, I thought I was protecting Connor [ 70 ] Mr. Karpluk Senior’s motivation is clear. He said he was protecting his son, Connor. He is motivated by that state of mind. His version of these events is not credible. He was knew his son was sitting in jail for nine months, he says wrongfully.

He testified he had direct evidence to the contrary but held it back to protect his other son. He had the information to clear the Accused, yet he did not come forward to police. I do not accept that he would have stood for that injustice to continue, if it were true. Despite the legal advice he testified he received, he would have come forward earlier. I do believe he was withholding information to protect his son, but it was the Accused, not Connor Karpluk.

Decision and Verdict [ 71 ] Applying the WD test, firstly for reasons referenced above I reject the evidence of the Accused and his father that Connor Karpluk threw the punch that felled Mr. Wood.

Their evidence is self-serving and not credible. [ 72 ] Their evidence does not raise a reasonable doubt. [ 73 ] I am satisfied that the evidence of patrol officer Sawatzky is reliable and correctly identifies the Accused as the person who struck the blow, based on the fact she saw him exit the front-passenger door of the Mercedes and saw him land the blow. [ 74 ] The evidence of patrol officer Donald confirms the testimony of patrol officer Sawatzky to the extent that he also saw the front- passenger exit the Mercedes and throw a punch, although he did not see if it landed.

He escorted that person to the sidewalk to ensure they remained on scene as directed by patrol officer Sawatzky. We know that person was the Accused. His demeanour was described by eyewitnesses as being aggressive, “wired for sound” adrenaline rushing and breathing hard, all consistent with him just having been

involved in a physical confrontation. [ 75 ] Connor Karpluk fled the scene. Mrs. Wood described him as just standing inside the open rear door quietly. Only he knows the reason he fled the scene. He did not testify despite the fact he was the Accused’s brother and was accessible as a witness in the Courthouse. It would be speculative to conclude that the only reasonable inference to be made is that he fled the scene because he hit the victim. There could have been a number of reasons he fled.

The evidence likewise established that the Accused himself stated he wanted to leave the scene. [ 76 ] Based on the evidence I have accepted, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 77 ] The only issue at trial was identity of the person who committed the aggravated assault, I am satisfied that the Crown has proven beyond a reasonable doubt that the person who struck the blow in question was Justin Karpluk. Accordingly, I convict the Accused of aggravated assault. Murray P. Thompson, P.J.