R v Burton, 2024 ABCJ 32

In the Alberta Court of Justice Citation: R v Burton, 2024 ABCJ 32 Date: 20240208 Docket: 220479109P1 Registry: Calgary Between: His Majesty the King Crown - and - Jason Burton Accused Judgment of the Honourable Justice J. Shriar [1] The Accused Mr. Burton was charged with one count of assault with a weapon namely a spear or an imitation spear against aMr.

Jake Osborne formerly his neighbour in the Evergreen district of southwest Calgary. [2] The charge resulted from a physical altercation that occurred April 23, 2022, relating to a long-standing issue about Mr.Osborne parking his two trucks, his car and sometimes his camper trailer on the street, taking up a lot of space making it difficult for Mr.Burton and others to park conveniently close to their homes. [3] Crown called evidence from the complainant Mr. Osborne, his sister-in-law Ms. Dera, and a few police officers whoattended the scene or dealt with Mr. Burton at the police office.

Crown also tendered video recordings that captured important parts ofthe incident and its aftermath. Mr. Burton testified on his own behalf. [4] In argument Crown counsel Mr. Di Lorenzo referred to the Supreme Court of Canada decision in R v W(D) (SCC), [1991] 1 SCR 742. For the benefit of Mr.

Burton that case provides important guidance to trial judges in the related issues ofassessing the credibility of witnesses especially the accused in the context of determining whether the Crown has proven the chargebeyond a reasonable doubt. [5] Proof beyond a reasonable doubt along with the presumption of innocence are the bedrock principles of all Canadiancriminal law. An accused person like Mr. Burton is presumed to be innocent. And to be convicted of a criminal offense the burden is onthe Crown to prove the case beyond a reasonable doubt.

An accused person does not have to prove their innocence; they are presumed tobe innocent. The only question is whether the Crown has proven the case beyond a reasonable doubt. It is not enough for the Court toconclude the person is probably guilty. [6] Probability is not the test. Nevertheless, proof beyond a reasonable doubt is not proof to an absolute certainty. That level ofcertainty does not exist in many scientific matters let alone matters of judgment regarding human affairs. But proof beyond a reasonable

doubt is a very high standard of certainty, closer to absolute certainty than to probability. [ 7 ] When any witness including an accused person testifies in court, they put their credibility in question. Despite the presumption of innocence, the court must consider the credibility namely the believability or honesty of their testimony, and also the reliability or accuracy of their memory and testimony. The assessment is based largely on reason and common sense. [ 8 ] The principle of reasonable doubt applies to the credibility and reliability of witnesses.

If the Court has a reasonable doubt arising from the credibility or reliability of the witnesses relating to an essential element of the offence, or if after considering all the evidence the Court is unable to decide whether to believe or disbelieve the evidence of a witness on any essential element of the offence, the Court must acquit. The main issue is always whether the Crown has proven every element of the offense charged beyond a reasonable doubt. The burden of proof is always on the Crown. [ 9 ] In this case there is very little difference between the versions of the Accused, Mr.

Burton and the other witnesses, and even between the witnesses and the video evidence. There is little dispute about the basic facts. And mostly, as set out below in more detail, I accept Mr. Burton’s evidence. [ 10 ] Exhibit 2 was around 37 seconds of doorbell camera video evidence of the moments leading up to the incident and was entered by consent. The video confirmed Mr. Osborne’s testimony that he left the house with his toddler son that morning and proceeded to help the boy into his car seat in the back seat of his truck. The video shows Mr.

Burton running from his house two doors away carrying the approximately 3-foot-long spear. A photo of the spear was entered as Exhibit 1. Mr. Burton runs toward Mr. Osborne from behind as Mr. Osborne leans into the truck to help buckle his young son into the car seat. [ 11 ] That video shows the two men struggling over the pole and then ends. [ 12 ] Mr. Osborne testified that he was first struck in the back, and described Mr. Burton repeatedly attempting to slash and stab toward his mid-section with the sharp end of the spear. Mr.

Burton denies that, asserting he approached with the blunt end, not the pointed end, of the spear. The image of Mr. Burton as he ran toward Mr. Osborne on the doorbell video recording was magnified and reviewed in court. Crown counsel Mr. DiLorenzo concedes Mr. Burton’s testimony on that issue is likely more accurate. To be clear then the Court accepts it is not proven that Mr. Burton stabbed and slashed at Mr. Osborne with the metal end of the spear. [ 13 ] However, at some point during the incident Mr.

Osborne received a deep cut between his index and middle finger on his left hand, causing significant bleeding. Exhibit 3 is a photo of Mr. Osborne’s bloody hand. He received stitches and eventually had surgery to try to repair nerve damage to the finger. He has lost sensation in one part of his finger and that finger gets numb in the cold interfering with his ability work as carpenter outside in inclement weather. [ 14 ] There was more video evidence taken by Mr. Osborne’s sister-in-law, Aleisha Dera. Ms. Dera lived with her sister Shayann, who was or is Mr. Osborne’s partner and their two children.

That 50 second video was entered by consent as Exhibit 7. [ 15 ] Ms. Dera’s video confirmed the testimony of all witnesses that at some point, Mr. Osborne wrestled Mr. Burton to the ground and immobilized him with an “arm bar” hold. Mr. Burton is shown on his back with Mr. Osborne pinning him down with his leg across Mr. Burtons chest and his arm extended, held by Mr. Osborne. [ 16 ] The video shows Mr. Burton struggling to get free and apparently biting Mr. Osborne’s leg. Mr. Osborne responds by applying approximately 4-5 blows with his fist to Mr. Burton’s head until he releases his jaw from Mr. Osborne’s leg.

The evidence was that another man, Rob a roofer working in the area, came over and helped subdue the Accused until the police arrived. [ 17 ] Ms. Dera and Mr. Osborne both said that once Rob assumed physical control of the Accused, Mr. Osborne stood up and tended to his bleeding hand. Ms. Dera recalled Mr. Osborne kicked the Accused’s leg, in frustration she said. Mr. Burton said Mr. Osborne kicked and stomped on his head but admitted he did not bleed or suffer any head injury. A police officer described Mr.

Burton as having a “rug burn” scrape possibly caused by being pressed face down into the concrete walkway as depicted in the video image. Mr. Burton said it was a boot print from Mr. Osborne’s kicking and stomping his head. [ 18 ] Crown counsel submitted that perhaps Mr. Burton’s memory exaggerates the nature and extent of Mr. Osborne’s force, but also that Mr. Osborne and Ms. Dera’s testimony likely minimizes the nature and extent of Mr. Osborne’s use of force against Mr. Burton. As discussed below that issue is not directly in front of me.

I make no finding one way or the other. [ 19 ] Police arrived on the scene. A still image from Officer Abougoush’s body worn camera footage entered by consent as Exhibit 4 shows two men, Mr. Osborne and the roofer, holding Mr. Burton on the ground. [ 20 ] A statement given by Mr. Burton to Acting Detective Hustij after his arrest at the District 1 office was ruled admissible after voir dire hearing. The Court ruled the statement was given voluntarily, and was the product of an operating mind, not induced by threats or promises or given in the context of any oppressive police tactics or tricks. Mr.

Burton admitted the statement was given voluntarily. [ 21 ] The statement is very informative. Mr. Burton testified the statement was true and accurate. Mr. Burton describes how seeing Mr. Osborne outside his front window that morning caused him to, in his words “explode”. He said he “lost it”. He admitted to being in a “blind rage”. Mr. Burton both in testimony and in the statement asserts that the incident happened very quickly, that his recollection was blurry, but he firmly denied stabbing at Mr. Osborne and denied any intent to kill. [ 22 ] In the statement Mr.

Burton said he was sure he did not scream “fucking piece of shit”. In court he said he yelled “I’m sick of this fucking shit”, and denied saying that he was going to kill Mr. Osborne. [ 23 ] There is no evidence of any precipitating provocation other than Mr. Burton’s pent-up rage about Mr. Osborne’s persistently parking his several trucks on the street causing inconvenience to Mr. Burton’s wife and neighbours. Mr. Burton said there had been almost no contact between the men for over two years stating he avoided Mr. Osborne.

[24] Before considering the legal implications of the facts I will address several issues raised by Mr. Burton in his introductorycomments to the court, in cross-examining witnesses, in his own testimony and finally in argument. [25] One issue concerned the lateness of disclosure of certain video evidence recorded by Ms. Dera at the scene. In crossexamination Ms. Dera acknowledged she failed to provide or even refer to the fact that she took at least one photo and recorded somevideo of the incident. She described herself and being overwhelmed and emotional at the time and that it simply slipped her mind.

Thevideo Exhibit 7 reveals she was yelling and crying, and given her obvious emotional distress while testifying almost two years after theevent, her explanation about it slipping her mind seems at least plausible to the Court. [26] Ms. Dera denied ever having been called about video evidence in July 2023. That was confirmed by Officer Vandenakkerwho was tasked with following up on some outstanding disclosure issues in late June 2023 including possible video from Ms. Dera. Cst.Vandenakker said he reviewed Ms. Dera’s statement where she made no mention of video but did not call her. [27] This suggests that Mr.

Burton’s perceptions that this evidence has somehow been wrongfully concealed from him are likelyunfounded, despite that he received the video around a year and half after the event. Mr. Burton admitted that Ms. Dera came on thescene too late, and that she could not see properly from inside the house. Once she started videoing, the men were already on the groundand the main part of the incident was over. [28] Apart from contributing to Mr.

Burton’s perception that the police failed to do as thorough an investigation as they shouldhave, he has not shown that any relevant, or more importantly any possible exculpatory evidence, is missing. Arguably if Ms. Dera hadmore video, it might show the alleged assault by Mr. Osborne, albeit after the fact. Ms. Dera denies having any more video and mostimportantly, the issue of Mr. Osborne’s conduct after the incident is not before me. [29] Similarly for Mr. Burton’s repeated statements that the police failed to interview other neighbours.

He was offered anadjournment to follow up with the neighbours directly but refused. [30] Mr. Burton also complained about the failure of the police or Crown to follow up with the Calgary Parking Authority abouttheir involvement with Mr. Osborne’s vehicles on the street. Though discussed in court a few times, there were no submissions aboutany record or evidence that individuals in parking authority might have that is relevant to the crime charged here. [31] Further, Mr. Burton complained about the lack of testimony from an Officer McCullough, Cst.

Abougoush’s partner that day,and the absence of any body worn camera footage from Cst. McCullough. Crown explained that Cst. McCullough is on a long-termleave and had no body worn camera footage that day. Mr. Burton was skeptical about that, but again was unable to state or speculateabout what relevant information would be disclosed by Officer McCullough, who by his own estimate did not show up on scene until asmuch as 15 minutes after the main incident was over. Mr. Burton was unimpressed, to say the least, that the police took so long to attenda supposed “Priority 1” call. [32] One of Mr.

Burton’s main concerns is his conclusion that the police conducted a careless incomplete investigation, but notthat there is any information missing relevant to the charge against him of assault with a weapon. [33] Finally, Mr. Burton is frustrated that there was no further investigation or charge against Mr. Osborne regarding his allegedlyviolent response to Mr. Burton’s admitted conduct. Presumably the kicking and stomping to his head discussed briefly above. That isprobably the information and evidence Mr. Burton wanted the police to have looked for from Ms. Dera and the other neighbours andmaybe Cst.

McCullough. [34] This Court is in no position to make further comment about whether there were good grounds for further investigation of Mr.Osborne’s conduct that day. From what Mr. Burton said in court he has received advice from more than one source that this trial on thischarge is not the place or time for that consideration. It is not for this Court to tell Mr. Burton how to report complaints to the police orhow to file charges. [35] But I make a few points. One is that according to Mr. Burton things on his street are much improved, back to normal he said,since Mr.

Osborne moved away, shortly after the incident. Also Mr. Burton repeated twice that he is not looking for Mr. Osborne or Ms.Dera to get in trouble. [36] Finally, even assuming Mr. Osborne was violent as alleged and even considering Mr. Burton’s comment about wanting hisstory to be told, I find that part of the story, so to speak, based on all the evidence and representations at trial has no impact on theassessment of whether the Crown has proven the charge against Mr. Burton. Namely wither it is shown beyond a reasonable doubt thaton April 23, 2022, in Calgary Alberta Mr. Burton assaulted Mr.

Osborne with a weapon, namely a spear contrary to

Section 267(

a) of theCriminal Code. I turn to that issue now. [37]

Section 267(

a) of the Criminal Code states that it is an offense for anyone in committing an assault to carry, use, or threaten touse a weapon. [38]

Section 2 of the Code defines a weapon as anything that is used or designed or intended to be used to cause death or injury toa person or to threaten or intimidate any person. The question of what sort of item is or is not a weapon is not always easy to resolve. [39] Justice Dalton in R v C(DA) 2007 AJ 691 stated that in determining whether an object is a weapon the court should considerwhether the object’s design is such that it could readily be used to cause death or injury to a person or to threaten or intimidate a person. [40] That definition was considered by the Court of Appeal in R v Vader 2018 AJ 206.

The court did not comment but referred toits decision in R v Fuhr 2018 ABCA 15 , 2018 AJ 37. There, the court considered an item that sounds like the item here. Specifically, it was 3-4 feet long, made of steel and with a sharp point. It was not a decorative item. It was stored near the entry to theaccused’s residence point down, handle up. The Court of Appeal confirmed it was a “weapon” as defined in the Criminal Code.

[ 41 ] In this case the item depicted in Exhibit 1 is not for decorative purposes and the metal edge or point was sharp enough to cause injury and did in fact cause injury to Mr. Osborne. Mr. Burton admitted it was reasonable to conclude that contact with the sharp end could cause injury. [ 42 ] Mr. Burton testified he used the spear for protection against bears while working as a surveyor in remote sections of bush.

If that spear could stop a bear, it is reasonable to conclude it could cause injury or death to a person. [ 43 ] The Court finds the spear in this case, as depicted in photo Exhibit 1, admittedly carried by Mr. Burton during the incident was a “weapon” as defined by the Criminal Code . The next question is whether the crown has proven beyond a reasonable doubt that what occurred was an “assault”. [ 44 ]

Section 265 of the Criminal Code defines “assault” as follows: A person commits an assault when without the consent of another person he applies force intentionally to that person directly or indirectly. [ 45 ] Most persuasive in my analysis is the evidence directly from Mr. Burton that though he did not intend to kill and and that he did not stab or slash at Mr. Osborne with the sharp metal end of the spear, he struck him with the blunt end. That is, Mr. Burton admits to applying force to Mr.

Osborne from behind without his consent while carrying a weapon and using its blunt end. [ 46 ] At page 21 of the statement transcript, Exhibit 9, Mr. Burton he says (lines 15-23) “I can’t. I’m telling you it happened like that (snapping his fingers) But I know I didn’t come at him to kill him because I would’ve killed him ‘cause his back was to me, I just hit him with the bunt [sic] end of my spear, and then he turned around and grabbed at the weapon he cut his hand and we struggled and that’s the end of that...” [ 47 ] Mr. Burton admits to the so-called actus reus or physical component of the offense.

He admits, and it is proven, that while carrying a weapon he applied force using that weapon to Mr. Osborne without consent. [ 48 ] It is a fundamental principle of criminal law in most of the world that liability requires a culpable state of mind, mens rea , and not only a physical act. Criminal responsibility is based on the notion that a person has chosen to act a certain way. Regarding proof of the required mens rea or mental component of the offense of assault,

Section 265 refers to the intentional application of force. [ 49 ] In testimony and argument, there was discussion about Mr. Burton’s intent. I accept his testimony that he did not intend to kill Mr. Osborne and that it is not proven that Mr. Burton intentionally stabbed and slashed at Mr. Osborne with the sharp and of the spear in the initial part of the incident. [ 50 ] However, the offense of assault is a “general intent” offense. No “specific” intention is required to be present or proven. Such as an intent to kill or injure. The use of the word “intent” in this

section of the Code means the application of force itself was intentional and not an accidental or an involuntary gesture such as it might occur if a person was having a seizure. [ 51 ] Despite that I believe Mr. Burton that he was in a “blind rage”, that he “lost it”, or “snapped”, that kind of loss of self control does not absolve a person of criminal responsibility in most cases.

In fact, there an entire category of violent offenses long referred to as crimes of passion that occur in circumstances where the offender is overcome with violent emotion arising from the history of relations between the parties and leading to the commission of the criminal act. [ 52 ] Despite the evidence from Mr. Burton regarding long standing mental health issues, it is not argued, and the evidence does not disclose grounds to conclude that Mr. Burton was not criminally responsible at the time, pursuant to Section16 of the Criminal Code . That

section absolves a person of criminal responsibility for

an act committed when they were suffering from a mental disorder rendering them incapable of appreciating the nature and quality of the act and knowing it was wrong. [ 53 ] Watching and the audio visual recording of the statement given by Mr. Burton to Officer Hustij, and his testimony and representations to the court including his careful recall of the events leading up to and surrounding the incident, the arrival, presence and actions of witnesses and of the police, his assurance that he did not intend to kill, and his insistence that he used the blunt end of the stick in striking Mr. Osborne are all to me inconsistent with the sort of disorder contemplated by the

section and the jurisprudence. [ 54 ] In the circumstances including the candid admissions of Mr. Burton the Court finds that the Crown has proven the offense beyond a reasonable doubt. I find Mr. Burton guilty of assault with weapon. Heard February 5 and 6, 2024 . Dated at the City of Calgary, Alberta this 8 th day of February 2024.

J. Shriar A Justice of the Alberta Court of Justice Appearances: R. DiLorenzo for the Crown Self Represented for the Accused