R v Blackhorse, 2023 ABCJ 83

In the Alberta Court of Justice Citation: R v Blackhorse, 2023 ABCJ 83 Date: 20230405 Docket: 220591994P1 Registry: Calgary Between: His Majesty the King Crown - and - Mario Leonard Blackhorse Accused Decision of the Honourable Ju stice A.A. Fradsham Introduction [ 1 ] Mr. Blackhorse is charged that he: Count 1: On or about the 12th day of June, 2022, at or near Calgary, Alberta, did attempt to murder Kimberly Louison, by means of inflicting sharp force trauma wounds (stabbing/cutting) into her person, contrary to section 239(1) (

b) of the Criminal Code of Canada . Count 2: On or about the 12th day of June, 2022, at or near Calgary, Alberta, did with the intention to enable himself to commit an indictable offence, did attempt to render Kimberly Louison insensible and/or incapable of resistance by choking and/or strangling Kimberly Louison with his hands, contrary to

section 246 (

a) of the Criminal Code of Canada . Count 3: On or about the 12th day of June, 2022, at or near Calgary, Alberta, being at large on an Undertaking, did fail, without lawful excuse, to comply with a condition of that Undertaking, to wit: 5.(

D) you must not communicate, directly or indirectly, with Kimberly Lewison except in accordance with the following conditions: in court through legal counsel, contrary to section 145(4) (

a) of the Criminal Code of Canada . Count 4: On or about the 12th day of June, 2022, at or near Calgary, Alberta, being at large on an Undertaking, did fail, without lawful excuse, to comply with a condition of that Undertaking, to wit: 5.(

E) you must not go to residence of Kimberly Lewison except in accordance with the following conditions:, contrary to section 145(4) (

a) of the Criminal Code of Canada . [ 2 ] At the conclusion of the evidentiary portion of the trial, and in its written submissions, the Crown said that it no longer sought a conviction for attempted murder as set out in Count 1, but rather sought a conviction for aggravated assault under Count 1 (the

Crown’s position being that aggravated assault is an included offence in Count 1). [ 3 ] A reference in these Reasons to a

section number is, unless the contrary is specifically stated, a reference to that

section number in the Criminal Code . Issues [ 4 ] The overarching issue is whether the Crown has proven beyond a reasonable doubt that Mr. Blackhorse committed one or more of the offences with which he is charged. As part of answering that question, it will be necessary to determine what factual inferences may be properly drawn. [ 5 ] It will also be necessary to determine whether the offence of aggravated assault [section 268(1)] is an included offence in the charge set out in Count 1 [attempted murder “by means of inflicting sharp force trauma wounds (stabbing/cutting)”; section 239(1) (b)].

Facts [ 6 ] I will summarize the relevant portions of the testimony of the witnesses who testified at this trial, and I will state what of the testimony I accept. Only the Crown called evidence. Kimberly Louison Examination-in-chief [ 7 ] The complainant, Ms. Louison, testified that in June 2022, she lived in a house located in Calgary at [ address omitted ]. Throughout these Reasons, I will refer to this house as “the residence”. She lived there with the accused, her father (Ivan Severight), and her four children. Ms.

Louison occupied an upstairs bedroom in the house, and the children occupied bedrooms downstairs. Her father had a separate bedroom upstairs. [ 8 ] Ms. Louison and the accused had lived together “practically constantly” for five years. [ 9 ] Ms. Louison testified that on June 12, 2022, she, the accused, and some friends “went downtown” and they “were drinking”. When asked, “You went downtown, and you were drinking. And then what happened next?”, Ms.Louison said, “…we were going downtown, came home, and then we were drinking. Yeah.

Don’t really remember that night.” [ 10 ] She said that the people who were at the residence when they returned were: “Me, Mario [the accused], our friends, and I do believe my two girls were home, and my dad…the other kids were gone.” [ 11 ] When asked about what occurred at the residence, she testified as follows: Q And then in terms of while you were at home, there's something that happens that then -- that the police end up being called. So can you please let us know about what happened? A I was stabbed five times and... Q Okay. You were stabbed? A Yeah. Q And are you able to tell the Court who stabbed you?

A Who stabbed me? Well, I don't remember that night. That's the thing. Like, I was intoxicated. I just remember coming to and looking at Shawn (phonetic). He was, like, holding my – Q Sorry? A -- my friend. Q Okay. Your friend who? A And he was holding a -- Shawn, he was holding my wound. I remember that. And then I remember coming to. And then the cops (INDISCERNIBLE). Q Okay. Let's back up a little bit. So you continue to drink at your house. A Yeah. Q And where is everybody drinking? A We were in the living room, I think. Yeah, yeah, pretty sure in the living room. Q Okay. And then is Mario still there?

A Yeah. Q Okay. And then is -- is there -- is -- there's something that changes in the

environment? Is there anything that happens? A I don't know cause I was drunk. I don't know. I shouldn't – Q Okay. So we -- we do know that you had been drinking. A Yeah. Q But we -- it's -- it's also the case that you were the person that this -- this whole thing happened to. A Yeah. Q Right? A Yeah. Q And I know it's -- I know you're up there. It's -- it's nerve-wracking, but I need you to make sure that you tell the Court, because he -- His Honour wasn't there, I wasn't there. You need to tell the Court as much information as -- as you -- as you have, okay? A Uh-huh. Q Okay.

So we're going to go through the night. So is there anything that happens between yourself and any person at the party? A Um... Q Or I say "party." At -- at the house. A I don't know cause I was drunk, I was intoxicated, and, like, I don't know. Q At some point in time you end up in your bedroom. How does that happen? A I must have went to bed with him. We must have went to bed – Q Okay. A -- I don't know. Q When you say you must have went to bed with him, can you tell me why you're saying that? A Cause that's where our bedroom was, me and Mario's. Q Okay.

And so at some point in time you went back to the bedroom? A Yeah. Q The bedroom that you shared with Mario? A M-hm. Q "M-hm" meaning yes? A Yes. Sorry. Q Okay. And did you get undressed? A Probably. Yeah. Was naked. Q Okay. And -- and what happens at that point? A Hmm. I don't know. I said I was drunk. Like, I don't really recall anything the night. Q Did you get into an argument with Mario? A Like, not that I can remember. Q When you say that you must have got -- you might have, but you are not -- A Yeah, we always fight when we're drunk. Q Okay. And you did say that you were stabbed.

Do you know what happened before you got stabbed? A To be -- a -- I -- no. I don't remember, like -- like -- like -- yeah, I don't remember. Q Okay. Do you remember where you were in the house when you got stabbed? A In my bedroom.

Q Okay. So when you ended up getting stabbed, or when you realize that that's what had happened, were you in the bedroom? A Yeah, I was in the bedroom. Q Okay. And what were you doing? A Laying on the ground. Q Okay. A I remember laying on the ground, not being able to move. Q Okay. And was there anybody in the bedroom with you? A My daughter and my one friend. Q Your daughter, which one? A Nevaeh. Q Okay. And do you remember if you said anything to her? A I remember crying to her, looking at her. She was on the phone.

And then I remember looking at my friend, and he was -- he was holding my side -- I think on the side, with his shirt. And then that's all I -- then I must have blacked out, or something. [1] [ 12 ] Ms. Louison testified that she suffered five stab wounds: four in her upper body and one in her right thigh. She also testified that what she described as bruises, and scratches or scrapes, evident after her release from hospital, were not present on her before she went to the bar that night. [ 13 ] Ms. Louison testified that she had no memory of the police attending her residence that evening.

Her next memories are being in the hospital. [ 14 ] She testified that she and the accused met in December, 2017, and that “we lived together for five years.” They do not have any children together, but Ms. Louison’s 8 year old daughter [A] “calls him ‘dad’…cause he raised her.” Cross-examination [ 15 ] Ms. Louison testified that on June 12, 2022, she had been downtown and was drinking. She said she thought she was drinking whisky, and that she “had a lot.” She thought she had consumed two bottles (“two two-sixes”) of whisky. [ 16 ] She agreed that she had no recollection of going to bed that night.

She drew that inference from her memory of being on the floor of her bedroom, naked, with Shawn Blackhorse [the brother of the accsued] “holding my wounds”. [ 17 ] Ms. Louison was asked about her memories of the evening of June 12: Q We've talked about your first memory after the stabbing, but do you have any recollection of your last memory before you ceased to have any memories? A We were in the living room. Q When you say "we were in the living room," so who is the "we"? A Me, Mario, and a couple of our friends. Q Do you recall what you were doing in the living room?

A Mmm, we -- we were sitting on the couch, listening to music. Q Now, was that the only thing that was happening in the living room, and -- and by "only thing," given that a large chunk of the day had been spent drinking, did the drinking continue in the living room of the house? A Yeah, I believe so, yeah. Yeah. [2] [ 18 ] Ms. Louison testified that she calls Ivan Severight her “dad” though he is, in reality, her grandfather. [ 19 ] With one exception, I accept Ms. Louison’s testimony, including the correction that her statement that she “had gone to bed” was supposition on her part, and that Mr.

Severight is her grandfather, but that she refers to him as her father. [ 20 ] In examination-in-chief, Ms. Louison was asked: “And on June 12, 2022, can you tell us a little bit about what happened in the evening hours and then into the early morning of the 13 th ?” It is clear from other reliable evidence led in the trial (e.g., a transcript of the 911 call seeking assistance for Ms. Louison – exhibit 13), that the relevant dates were June 11 and 12. I accept that Ms. Louison’s evidence about going downtown to drink related to June 11. Constable James MacLeod

Examination-in-chief [ 21 ] Constable MacLeod is a serving member of the Calgary Police Service. On June 12, 2022, he had been so for approximately 5.5 years. [ 22 ] Constable MacLeod testified that he and his partner (Constable Gauchier) received a call from dispatch to attend the residence in relation to a “domestic call”. He was unaware that anyone had been stabbed or that a weapon was involved. [ 23 ] He testified that he and his partner were the first to arrive on the scene.

Upon arrival, Constable MacLeod “walked towards the front entrance” of the residence “which was open.” He saw “a young girl was on the phone”. He concluded that she was on the telephone to the 911 operator. [ 24 ] Upon entering the residence, Constable MacLeod saw “a few intoxicated people on the couch.” At the end of a hallway, he found Ms. Louison lying on her stomach “with a male holding a towel to her back.” Constable MacLeod then made a request for an ambulance as he noted puncture wounds on Ms. Louison’s back. [ 25 ] Constable MacLeod testified that he and the man attending to Ms.

Louison helped move her to the front door of the residence where the Constable thought it would be easier for EMS to attend to her. [ 26 ] Constable MacLeod testified that thought he heard “a drunk male groaning and yelling” in the backyard. Consequently, he, and another police officer, went to the backyard but found nothing. Constable MacDonald returned to the residence, and began to search for a weapon in the bedroom where he had located Ms. Louison. [ 27 ] The officer testified that there was a mattress on the floor of the bedroom, and a quilt. Both had blood on them.

He said that there was blood on the floor by the mattress and droplets of blood on the wall. He said the blood was “bright red and still wet. It was fresh blood….” Constable MacLeod said he found, when he moved the mattress, a folding knife (with wet-lookimg blood on the blade) between the wall and the mattress. He passed on that information to other police officers. He testified that he thought that “Crime Scenes members would attend and seize the weapon.” [ 28 ] Constable MacLeod testified that he and other officers went to the basement of the residence to check on the people who were there.

He testified that two female children were located. Another Constable stayed with the children, and Constable MacLeod went back upstairs, and moved a police vehicle to make room for EMS. Constable MacLeod said that Ms. Louison was transported by ambulance to the Foothills Medical Centre. He followed the ambulance to the hospital; the ambulance arrived at the hospital at 0114 hours. Cross-examination [ 29 ] Constable MacLeod confirmed that the man he found attending to Ms. Louison was wearing a “red

article of clothing”. [ 30 ] The officer said that he learned that there was a man in a separate bedroom on that same hallway. He learned that when, in the course of his efforts to move Ms. Louison, he opened the door to the man’s bedroom, and the man [took] exception to his door being opened. It was that man, whom the officer described as Ms. Louison’s father, who suggested to Constable MacLeod that he move the mattress and look for the knife between the mattress and the wall. [ 31 ] I accept the Constable’s evidence.

Jason Parkinson Examination-in-chief [ 32 ] Constable Parkinson testified that he is a member of the Calgary Police Service, and on the day in question he and his partner (Constable Barrett) were dispatched to the residence in response to a complaint of a domestic incident involving a stabbing. [ 33 ] Constable Parkinson testified that as he approached the residence at 0037 hours, he heard on the radio that the accused had been located. Constable Parkinson said he saw the accused on his knees being taken into custody. [ 34 ] Constable Parkinson said he entered the residence, saw Ms.

Louison with her stab wounds, and noted the presence of the victim’s brother, another male, and a female in the living room. The Constable said that the female (lying on the couch) was “pretty intoxicated”; the two males sat on the couch. When asked if there was blood on any of the individuals in the living room, he replied, “Not to my recollection, I didn’t notice any blood on anybody else.” [ 35 ] Constable Parkinson testified that he seized the knife at 0212 hours while Constable McNaughton took photographs.

Cross-examination [ 36 ] Constable Parkinson confirmed that Crime Scenes did not attend the residence; hence, he and his partner dealt with photographing the scene and seizing the knife. [ 37 ] I accept Constable Parkinson’s evidence.

Christopher Barrett Examination-in-chief [ 38 ] Constable Barrett testified that he is a member of the Calgary Police Service, and on June 12, 2022, he was working with a partner (Constable Parkinson). He said that he and his partner responded to the call for assistance at the residence as a backup unit, and they “were one of the last vehicles to arrive.” [ 39 ] Constable Barrett testified that as they approached the residence, Constable Barrett saw a male person (later identified as the accused) sitting in the middle of the road being “challenged” by two police officers.

Constable Barrett said that he noted the man had “blood on his hands, as well there was vomit on a bit of his clothes and on the ground beside him.” Constable Barrett explained that “in police terms, a challenge represents an officer giving commands to another individual, whether they are in – the officer has custody of them or they’re attempting to take custody of them.” [ 40 ] Constable Barrett testified that he assisted in putting handcuffs on the accused, and in placing him in a police vehicle.

He said that after searching, without success, for a weapon between the point of arrest and the residence, he entered the residence, went downstairs, met one of the children there, and “kind of just kept her a little busy while officers were upstairs because [he] didn’t believe a child should be involved in that and be seeing that….” [ 41 ] Constable Barrett said that during “chitchat with the youngest girl, she was eight” (whose name he thought was [A]), the girl said: “Mommy was laying on the ground crying because Daddy hit mommy.” To be clear, that statement only formed part of the narrative; it was not admitted as proof of the truth of its content. [ 42 ] Constable Barrett testified that eventually another officer took the children from the scene so that they could stay with an aunt.

Cross-examination [ 43 ] Constable Barrett said that he believed the accused was intoxicated. [ 44 ] Constable Barrett said that he (Constable Barrett) asked the accused whose blood was on the accused’s hands, and the accused replied, “It is obviously mine.” [ 45 ] Constable Barrett also confirmed that when the accused was being arrested, someone said to him, “You stabbed someone”, and the accused replied, “No, I didn’t.” [ 46 ] Constable Barrett was asked these questions and gave these answers: Q All right. Now a couple of places you've talked about having observed blood on Mr. Blackhorse's hands.

Did you review your will state before you came to court today? A I did. Q Okay. Do you recall that there's a part of a sentence that says, "As his hand was bleeding"? A Yes. Q Okay. So from your observation you came to the conclusion the blood was from him, because you said his hand was bleeding, is that fair? A Yeah, that's fair. [3] Re-examination [ 47 ] In re-examination by the Crown, the officer was asked this question and gave this answer: Q My friend asked you about Mr. Blackhorse, or the person that was in custody bleeding. Do you recall where he was bleeding from?

A I do not, I did not see any cuts on his hands, I just saw the blood, and at that point in my notes I put that he was bleeding. I couldn't confirm or deny if he actually was bleeding, but from my observation I determined that it had been his blood on his hands. I did not see the victim at the point of making my notes, so I couldn't confirm if it was hers or not, so I put down in my notes that it was his. [4] [ 48 ] I accept Constable Barrett’s evidence. I find that the Constable’s initial conclusion that the blood on Mr. Blackhorse’s hands was his own blood was an assumption.

Constable Paul McNaughton Examination-in-chief [ 49 ] Constable McNaughton testified that he received a dispatched call “for service of a domestic” at 12:27 am on June 12, 2022. He said that attended the residence (he said he arrived at 0032 hours), and went to the rear of the residence in his police vehicle. He then heard over the radio that an arrest had been effected. [ 50 ] Constable McNaughton testified (in

summary form) as follows:

(1) “…I’m basically one of the first into the front door after that and members are behind me, so I’m already advising them tactically that I’m going to cover the upstairs, and members are going to the basement.” (2) “…I’m now into the residence and it’s open where the living room is to my right…. There is an unknown male, unknown female on the couch, several empty alcohol bottles on the coffee table, and then I go upstairs. Members then go to the downstairs, so I lose sight of them.”

(3) There is no one in the kitchen or dining room area. “…so I keep pushing forward. I find one bedroom door closed, I knock, an unknown male approaches and I identify him through photo ID, and I ask him to step out and come down to the living room area and sit with the unknown male, unknown female. He does so, he’s calm, he’s cooperative with me, so I continue clearing bedrooms.”

(4) The person he found in that bedroom says he is Mr. Blackhorse’s uncle; “the photo ID has a name on it, with a picture. I compare it to him as well as the ID, and I was satisfied that he was the one in the same person.” (5) “Later, when I’m maintaining continuity of the master bedroom, the unknown lady was passed out on the couch, we had to check on her welfare a couple of times, and then the two other males now seated on the couch, they had lots of highs and lows, ‘I hate the police. I like the police, let’s watch a movie’, but they couldn’t complete full sentences. Slurred speech.”

(6) He did not notice any blood of the clothing of these people. (7) “…when I was…clearing the home and I found one occupant in the bedroom brought him down to the living room, so I didn’t find any other victims in the house…but during the clearing the upstairs, I noticed a blood trail from the front door where the victim lay all the way up the stairs and into the master bedroom. So I went to investigate what I was seeing.

I went into the bedroom and I found drops of blood, I saw the mattress had blood on it and it was pulled away from the wall just a little bit, and some blood on the wall as well as on the baseboard. And when I had a closer inspection to the wall in the baseboard, there was a folding knife sitting right there with fresh blood on the blade.” “So I held the scene.

So basically at this point I held the upstairs, everybody is now downstairs in the living room area…I held the scene there so there was no traffic coming back and forth, so I maintained continuity and then called my supervisor and advised what I had observed.”

(8) He received instruction from his Sergeant to take photographs, and he did so with the assistance of Constable Parkinson. (9) “When I first entered the home, the victim is at the front door, so there is lots of blood there.” Cross-examination [ 51 ] In cross-examination, Constable McNaughton agreed that the man he found in the bedroom was Ivan Severight (confirmed by examining the man’s ID). [ 52 ] Constable McNaughton said that he believed that he was the first officer in the master bedroom. [ 53 ] Clearly, Constable McNaughton was not the first officer in the master bedroom.

He was not one of the first officers to enter the front door of the residence. Constable McNaughton may have seen the knife between the mattress and the wall, but he was not the first to discover it. Constable MacLeod found the knife after receiving a suggestion from Mr. Severight. [ 54 ] I doubt that Mr. Severight identified himself as Mr. Blackhorse’s uncle. [ 55 ] Other than those items, I generally accept the evidence of Constable McNaughton.

Constable Jared Popil Examination-in-chief [ 56 ] Constable Popil testified that he is a member of the Calgary Police Service, and on June 12, 2022, he was working with a partner (Constable Trevor Smith). Constable Popil said that he and his partner were dispatched to the residence at approximately 12:30 am on June 12, 2022. [ 57 ] Constable Popil testified that after arriving at the scene, he participated in the arrest of the accused. The officer said that he approached the accused, the officer’s partner commanded the accused to get on his stomach, and another officer began to put handcuffs on the accused.

Constable Popil held the accused’s left ankle so that the accused could not kick at the officer. [ 58 ] Constable Popil said that he moved some of the police vehicles to facilitate the arrival of EMS. He then “went into the basement and began watching over the two children that were in the basement.” He testified that arrangements were eventually made for the two children to be transported to an aunt’s house. [ 59 ] The Constable testified that the next day he went to the Foothills Hospital, and spoke with Ms. Louison who signed a Medical Consent form.

She also provided consent for the police Forensics Team to take photographs of her. Cross-examination [ 60 ] Constable Popil said that the accused appeared to be intoxicated when the officer assisted in the arrest. [ 61 ] I accept Constable Popil’s evidence.

Constable Beshoy Meleka Examination-in-chief [ 62 ] Constable Meleka testified that he is a member of the Calgary Police Service, and on June 12, 2022, was with his partner Constable Ma. They were dispatched to the residence in relation to a domestic call in which someone was bleeding.

The officer testified that he and his partner arrived at 0029 hours, and they were not the first officers on the scene. [ 63 ] Constable Meleka testified that he entered the residence and saw the victim being helped down the interior stairs by officers: “She had a towel on her that was wrapped around her, cause she didn’t have much clothes. There was blood, and she was in pain and officers were helping her downstairs. There were I would say uncooperative witnesses of intoxicated individuals in the house, I can’t remember how many of them.

There was someone sitting on the couch, that’s what I remember.” [ 64 ] The Constable testified that he went outside to the rear of the house as he understood that the assailant might be there. The officer said he did not find anyone, and when he heard a “commotion” in the front, he went to it. He participated in the arrest of the accused. He informed the accused of his

section 10(

b) Charter rights (the accused having been arrested for “assault with a weapon causing bodily harm”). [ 65 ] Constable Meleka testified that the accused “was very obviously intoxicated”. The officer described the accused as “very agitated, angry, and there was blood over his clothes…on the front and in the back of his clothes.” [ 66 ] The Constable testified that the accused had a cut on a finger and EMS attended to that by putting a bandage on it. The officer testified that he and Constable Ma transported the accused to the Arrest Processing Service, and arrived there at 0147 hours.

Cross-examination [ 67 ] Constable Meleka confirmed that the accused was intoxicated. [ 68 ] I accept Constable Meleka’s testimony. Constable Kevin Ma Examination-in-chief [ 69 ] Constable Ma testified that he is a member of the Calgary Police Service. On June 12, 2022, at 0026 hours, he and his partner (Constable Meleka) attended at the residence in response to a domestic call. Constable Ma said that when he arrived at the residence, Ms. Louison was near the front door of the residence. He noted blood on her.

Constable Ma testified that he tried unsuccessfully to conduct witness interviews with intoxicated adults on the couch. He said he abandoned those attempts and went to the basement to see if there were any other victims. He found two children [N] and [A], and he spoke with [N] who told him what she had seen. [ 70 ] Constable Ma said that he transported the accused to the arrest processing section. He said that the accused had blood on his hands. The accused was photographed, and his clothes were seized.

The Constable said he then completed his report. [ 71 ] Cross-examination [ 72 ] Constable Ma confirmed that his body worn camera recording of his interaction with the child [N] was accurate. [ 73 ] I accept Constable Ma’s testimony. Constable Miranda Gauchier Examination-in-chief [ 74 ] Constable Gauchier testified that she is member of the Calgary Police Service. On June 12, 2022, her partner was Constable James MacLeod. She said that she was dispatched to a “domestic disturbance” at 12:27 am on June 12, 2022.

She said she attended the residence, and that she and Constable MacLeod were the first officers there. [ 75 ] Constable Gauchier testified that upon entering the residence, she noted two people on the couch “who seemed not bothered or disturbed in any manner.” She said she heard on her radio that Constable MacLeod had located in a bedroom a victim with stab wounds.

She said she went to the bedroom and saw Constable MacLeod “with a victim laying on the ground, partially naked, with a gentleman she later identified as her brother attempting to help her.” She also testified: “During this moment, this is when kind of emotions started to come up in the residence. So there was an interaction that I witnessed between James and a gentleman in a bedroom where a door — a door was slammed and there was some yelling going on.” [ 76 ] Constable Gauchier explained how she assisted the victim before EMS arrived.

She also described helping the victim into the ambulance, and the ride to the Foothills Hospital. Constable Gauchier said she left the hospital at 2:55 am. Cross-examination [ 77 ] Constable Gauchier said that Ms. Louison was confused and did not make any spontaneous statements about what had occurred that evening. [ 78 ] I accept Constable Gauchier’s evidence. Ivan Severight

Examination-in-chief [ 79 ] Mr. Severight testified that when Ms. Louison was young, he took her as a foster child. He said that he was married to Ms. Louison’s grandmother, and that “because I raised her as my own, I came to be known as her father.” [ 80 ] He said that Ms. Louison refers to him as her father, and he refers to her as his daughter. [ 81 ] Mr. Severight testified that he lived at the residence with Ms. Louison’s family. He said he had his own room “a door away from [Ms. Louison’s] room.” Mr. Severight testified that the accused was living with Ms. Louison in June, 2022.

He said that he knows the accused “as a son-in-law” [ 82 ] Mr. Severight said that he did not go drinking with Ms. Louison and the accused on the night of June 11, 2022 because he does not drink. [ 83 ] When asked if he remembered seeing or hearing Ms. Louison come home that evening, Mr. Severight said “they were actually partying at the house that night, I believe, before this all happened.” [ 84 ] He said that: “Well, from what I recall that evening, there was — they were in the — I don’t know.

There didn’t appear to be anything wrong, and there was talk that my — my little granddaughter [A] was possibly going to get her last name to Mario’s, to Blackhorse. And they were quite happy with it. They were together at that time. So I went to my room, shut the door, and that was it at that time.” [ 85 ] When asked whether it was Ms. Louison and the accused who were having that conversation, he said: “Yes, well, together — I think they had some company that night as well.” He said, “I usually don’t involve myself with their — they’re little parties after that because I myself don’t drink anymore.” [ 86 ] Mr.

Severight testified that “early that morning, my granddaughter [N] come in — came towards my room, saying that something had happened to her mother.” [ 87 ] Mr. Severight said, “I walked as far as the doorway and seen my — seen my poor daughter with little or nothing on, and I thought — I didn’t think it would be — it would be — it would be up to me to walk in there with her unclothed like that.” He said that, “Mario was sitting on the corner of that bed.” Ms.Louison “just basically laid there motionless”. He said, “From what I remember, Mario was sitting there.

He looked kind of dazed, like — like, he didn’t know what had happened.” Mr. Severight said that he (Mr. Severight) “backed off and went toward my room.” [ 88 ] Mr. Severight said that it was not very long before the police arrived. He said that one officer “was quite rude”. He said a second officer came into his room “and kind of bickered with me”. [ 89 ] Mr. Severight testified that before [N] came to his room, he “could hear…kind of a bang.” Mr.

Severight said that he is hard of hearing “so I really didn’t hear too much.” He said that “it sounded kind of like … somebody banging their feet or something maybe.” [ 90 ] When asked about the number of people who had come to the residence that evening, he said “there might have been about three or four other ones.” He said that Ms. Louison introduced them to him, but that “I never really took note of it.” He said, “They weren’t somebody I really wanted to know.” He thought there might have been two males in addition to the accused. [ 91 ] Mr. Severight testified that when Ms.

Louison was in the living room she was not hurt. He said that he did not see the extent of her later injuries. He then said: A But I was very concerned when that -- when the gentlemen tried to drag her out of the room. Q Okay. When you said there was a gentleman trying to drag her out of the room, is he a police officer or – A Just a native fellow. Q Okay. A I mean one of the -- one of the guys that was probably at the party, I would -- I do believe. Q Okay. Is there anything that stands out in your memory about his description? A Not really, no [5] [ 92 ] Mr. Severight denied harming Ms. Louison.

He said that the last time he saw the accused, the accused was “sitting on the corner of that bed”. Cross-examination [ 93 ] Mr. Severight confirmed that there were two or three people in the living room. He said these were in addition to Ms. Louison, the accused, and “their family that we have at the household there.” [ 94 ] He said that these additional people were drinking. [ 95 ] Mr. Severight said that he was in his room watching television with the volume turned up “quite high”. He said that [N] knocked on his door to get his attention, and he opened his door. He then testified as follows:

Q Okay. So [N] knocks on your door, and then what happens? A She -- she told me -- she told me something had happened to her mother. Q So what do you do after that, after she tells you that? A I walked into the doorway, and I -- I looked down, and she was unclothed. And I didn’t think I should be -- I should be looking at that, eh, so I kind of backed out of the room. Q But didn’t [N] just tell you that Kimberly was hurt? A Yeah. Well, I was -- I guess I should talk about my health a little bit.

I was -- I was stricken with kidney disease in August of 2019, so I was still wearing a catheter and all that, so I wasn’t very healthy. And I -- I wouldn’t have been -- I wouldn’t have been able to be very much help anyway, but I could have done something. Although I did pull the guy off of her that was trying to drag her out of the room. Q Pulled the guy who was -- pulled the guy off when he was dragging her out of the room? A Tried to. He tried to, and I said, No, that woman is hurt. I said, Don’t be bothering her. Q How long does all this take? A I wouldn’t -- I -- I don’t think I was there very long.

Q Can you help me? A What’s that? Q Can you go back in your memory and try and -- try and help me to figure out how long it all took? Because you’ve talked about how [N] comes to your door and she knocks on it? A Yeah. Q She tells you something? A Yeah. Q You go to the bedroom where Kimberly is? A Yeah. Q You observe something in that bedroom, yes? A I seen her laying there on the floor. I didn’t -- like, when I see the fact that they’re naked, and I didn’t want -- I didn’t feel that I should be seeing something like that. Q And I appreciate that, sir. That’s kind and honest of you.

And then you talked about pulling the guy -- A Yes. Q Pulling her out of the room? A Yeah. Some -- some gentleman tried to -- tried to drag her out of the room, and I told him, That woman is hurt; leave her alone. And I -- in fact, I pulled him off of her, like. Q So how long does all of this take? A I would say maybe 7, 8 minutes. Q And you’ve testified that when you looked into Kimberly’s room, you saw Mario sitting there, looking dazed, like he didn’t know what was happening? A Yes. Q Sitting. Sitting where? A He is sitting on the edge of the bed. Q He wasn’t laying on the floor? A Not that I recall.

He was sitting right on the bed on the side. Q Did he move at all when you were observing what was happening in the room? A He just looked -- well, I didn’t really look real past there. I didn’t, like, even have an idea of what had happened.

Q So when you are standing there looking into the room, is [N] at your side? A Rephrase. Q Is [N] at your side? Is she standing next to you? A You know, I don’t even recall after that -- after her telling me what was happening as to if she was even in the room after that. She was -- she was in tears. She was crying, eh. Q So you’ve said that the interaction from when [N] got you to when you’re pulling the fellow who was pulling Kimberly out of the room was about 7 to 8 minutes? A M-hm. Q So how long after all of that that took 7 to 8 minutes did you have your first interaction with the first police officer?

A Well, the first one that came there with all this was rude, and they banged my door shut. They -- then he came back, and he took me, and I’m not sure if he banged it again or what, but I didn’t like his -- I didn’t like his interaction with me, yeah. Q Okay. So let’s talk about that police officer. So from the end of the 7 or 8 minutes that we’ve talked about to when this police officer was, like, giving you what for, how much time elapsed between the end of the first part and that police officer banging on your door and having words with you? A I don’t think it was very long at all. [6] [ 96 ] Mr.

Severight testified that when the police were looking for the knife, he told them it could have been thrown out the sliding doors or it could be “along the bed…along the wall.” [ 97 ] Mr. Severight agreed that the banging he heard was “like feet banging”. He was asked if “feet banging is your way of saying hearing somebody move in the hallway from room to room?” He replied, “Yeah, it’s a possibility.” Crown Re-examination [ 98 ] Mr. Severight agreed that “feet banging” was his description of what he heard. Court’s Questions [ 99 ] For clarification, I asked if Mr.

Severight knew the name of the person who was trying to remove Ms. Louison from her room. He said he did not know, but that he believed “it was one of the guys that was at the party earlier that evening.” [ 100 ] I accept Mr. Severight’s testimony. Transcript of 911 call [ 101 ] The transcript of the 911 call made by [N] was admitted into evidence. The following statements from it are to be given weight and qualify as excited utterances: • The address. • The fact that Ms.

Louison was having trouble breathing. • The statement that [N] “was sleeping, then my little sister came and woke me up.” • When asked about weapons, the reply [N] made: “l don’t know. I don’t know. I honestly don’t know what happened.” • When asked about when the event occurred, her reply: “I don’t know.” • When asked where her dad was, her reply, “He left.” Certified copy of Undertaking and Information (with endorsements) [ 102 ] A copy of an Undertaking dated March 28, 2022 was entered as Exhibit 6.

It was an undertaking given by the accused on March 28, 2022, which contained conditions that he not have contact with Ms. Louison and that he not attend at her residence. [ 103 ] A copy of the Information and endorsements relating to that undertaking was marked as Exhibit 7. [ 104 ] It was agreed by defence that those conditions bound the accused on June 12, 2022. Law and Analysis [ 105 ] The defence concedes that the Crown has proven beyond a reasonable doubt the allegations in Counts 3 and 4. [ 106 ] Mr.

Blackhorse, without lawful excuse, failed to comply with an undertaking which bound him and prohibited him from communicating with Ms. Louison (Count 3).

[107] Mr. Blackhorse, without lawful excuse, failed to comply with an undertaking which bound him and prohibited him from goingto the residence of Ms.

Louison (Count 4). [108] The Crown no longer seeks a conviction on Count 2 (as indicated in the Crown’s written submissions). [109] As earlier noted, the Crown no longer seeks a conviction for attempted murder under Count 1, but, rather, seeks a convictionfor the included offence of aggravated assault (contrary to section 268(1) of the Criminal Code). [110] Given the particulars setting out the allegation of attempted murder contained in count 1 of the Information, I am satisfied thataggravated assault is, in the case at bar, an included offence in the charge of attempted murder (see: R. v.

G.R. 2005 SCC 45; R. v.DeSousa 2016 ONSC 2745; R. v. Pelletier 2012 ONCA 566). [111] Has the Crown proven beyond a reasonable doubt that Mr. Blackhorse was the person who stabbed Ms. Louison? [112] A helpful

summary of the law relating to reasonable doubt and circumstantial evidence was set out by Justice Mandziuk in R. v.Dong 2023 ABKB 141: [9] The Accused is presumed to be innocent, and his guilt must be proven beyond a reasonable doubt. [10] The burden to prove the Accused’s guilt rests on the Crown and remains there until the Crown discharges the burden by meeting theproof beyond a reasonable doubt standard. The Accused has no burden to disprove the Crown’s case or to prove his innocence.

Anacquittal must follow if there is a reasonable doubt on all of the evidence. [11] In R v Lifchus, (SCC), [1997] 3 SCR 320, the Supreme Court of Canada discussed reasonable doubt. Lifchusstands for several fundamental principles: (

a) A reasonable doubt is a doubt that is based on reason and common sense, and is logically connected to the evidence or the absence ofevidence (para 30); (

b) Reasonable doubt is not a doubt that arises from sympathy or prejudice (para 31); (

c) Proof beyond a reasonable doubt requires a higher level of proof than probable guilt; however, it does not require proof to an absolutecertainty (para 31); (

d) Proof beyond any doubt is not required. Instead, the standard requires proof beyond a doubt that is not imaginary or frivolous (para36); see also R v Starr, 2000 SCC 40 at para 93). (

e) It is not enough that an Accused is probably guilty. The Accused’s guilt must be proved beyond a reasonable doubt (at para 36). …. [107] Neufeld J of this Court discussed the principles of circumstantial evidence in R v Singh, 2021 ABQB 243 at paras 20-21: Circumstantial evidence is evidence that tends to prove a factual matter by proving other events or circumstances from which theoccurrence of the matter can be reasonably inferred: R v Cinous, 2002 SCC 29 at para 89. Each piece of circumstantial evidence maywhen considered in context, contribute to the analysis.

The Crown need not disprove every possible explanation for the behavior or event in question, but in the end the evidence must on thewhole be sufficiently convincing that the standard of proof beyond a reasonable doubt has been met: R v Lifchus, (SCC), [1997] 3 SCR 320 at paras 30–31; R v Villaroman, 2016 SCC 33 at paras 28, 36, 50). [108] In R v Villaroman, the Court noted, at paras 55-56: Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, couldreasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.

The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22. The court noted that“[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simplybecause “the alternatives do not raise a doubt” in the jury’s mind.

Most importantly, “[i]t is still fundamentally for the trier [of] fact todecide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” [109] Our Court of Appeal in R v Lehner, 2020 ABCA 248, gave a useful synopsis of the Villaroman principles on this point (atparas 28 and 29): … Villaroman is an excellent reminder to a trier of fact about too readily drawing inferences of guilt by overlooking reasonablealternative inferences. The trier of fact is mandated to consider other plausible theories and other reasonable possibilities that areinconsistent with guilt.

The Crown may need to negative those reasonable possibilities, but certainly does not need to negative everypossible conjecture which might be consistent with the innocence of the accused. Although the line between plausible theory and speculation is not always easy to draw, the basic question is whether the circumstantialevidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the guilt of theaccused. ...

It was noted in Villaroman that “‘[c]ircumstantial evidence does not have to totally exclude other conceivable inferences’;that the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and thatalternative inferences must be reasonable, not just possible”: at para 42, citing R v Dipnarine at paras 22 and 24-25.

[110] In terms of an identity issue, Henderson J noted in R v Admasu, 2021 ABQB 386 (at para 15): [15] Where the criteria in Villaroman are properly applied, circumstantial evidence can be used to prove one or more of the elements ofan offence, including that the accused person before the court was the person who committed the offence: R v Hassan Ali, 2021 ABCA21; R v Eide, 2021 ABCA 70; R v Habte, 2020 ABCA 476, R v Matchee 2019 ABCA 5; R v Brazeau, 2018 ABCA 170. [111] I must look at the evidence as a whole, not in compartments. [113] To that I would add the following statement from R. v.

Dipnarine 2014 ABCA 328: [24] Alternative inferences must be reasonable and rational, not just possible. As pointed out by Charron J at para 35 of Griffin, “no oneargues that the jury should be entitled to base its decision on irrational or unreasonable inferences.” Reasonable doubt can arise from theabsence of evidence. It is not error of law to give effect to such a doubt even if it does not have specific evidence backing it up – see R v(H(JM), 2011 SCC 45 at paras 25 to 27, [2011] 3 SCR 197. [25] But the logic of the circumstantial evidence analysis is that if a trier of fact considers a postulated alternative

interpretation of thecircumstances taken as a whole to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative just becauseit is impossible to exclude it entirely. The law does not require such proof to absolute certainty: see R v Lifchus, (SCC),[1997] 3 SCR 320 at para 30 (“....a reasonable doubt is a doubt based on reason and common sense which must be logically based uponthe evidence or lack of evidence ..... [the jury] should be told that a reasonable doubt must not be imaginary or frivolous.

As well theymust be advised that the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard couldseldom be achieved.”). [114] I also add this statement from R. v. Villaroman 2016 SCC 33: [35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusionsbased on inferences drawn from proven facts”: see R. v. McIver, (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’dwithout discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted.

In assessingcircumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R.(7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to provefacts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence.

The issue withrespect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences otherthan guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere fact that it arises from a lack of evidence.

As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. [115] In the case at bar, there is circumstantial evidence pointing toward finding that it was the accused who stabbed Ms.

Louison: • His presence in the room where the victim was seen after having been stabbed. • The presence of blood on his hands and clothes, and the apparent absence of blood on the other occupants of the residence (whenthe police arrived). • His leaving of the residence sometime after the stabbing and before the police arrived. [116] There is also evidence which suggests other reasonable explanations for (and, therefore, possible, reasonable inferences to bedrawn from) the circumstantial evidence: • A cut to a finger (and, as shown in one of the photographs contained in Exhibit 8, possibly a palm) of the accused, and scrapes onhis face, which may explain the presence of blood on him. • The fact that by being physically in the residence with Ms.

Louison, the accused was in violation of his judicial interim releaseconditions, and the police, upon discovering him in the residence, would have cause to arrest him. • The presence of other intoxicated individuals in the house, one of whom, according to the only sober adult in the house (Mr.Severight), tried to take the wounded Ms. Louison from the bedroom before the police arrived. Mr. Severight, who had contact with thepolice after their attendance, did not identify a police officer as being the person who tried to move Ms. Louison. Mr. Severight said thathe dragged the male off Ms.

Louison as that person tried to move her; the police officer who did eventually move her from the bedroomdescribed his interactions with Mr. Severight, but never suggested that Mr. Severight tried to physically stop the officer. • Mr. Severight’s testimony was that when he saw the accused in the bedroom with the wounded Ms. Louison, the accused wassitting on the bed (mattress) looking dazed. Mr. Severight did not describe any aggressive acts on the part of the accused. [117] In my view, the circumstantial evidence, considered as a whole, raises a reasonable alternative to concluding that Mr.Blackhorse stabbed Ms.

Louison. The whole of the evidence raises serious suspicions about whether Mr. Blackhorse stabbed Ms.Louison, but those suspicions fall short of proving beyond a reasonable doubt that he did so. Verdicts

[ 118 ] I find Mr. Blackhorse not guilty of Count 1 (both as drafted and the included offence of aggravated assault). [ 119 ] The Crown does not seek a conviction on Count 2, and I find him not guilty of that count. [ 120 ] I find Mr. Blackhorse guilty of Counts 3 and 4. Dated at the City of Calgary, Alberta this 5 th day of April, 2023. A.A. Fradsham A Justice of the Alberta Court of Justice Appearances: N. Rozier and M. Motiejunas for the Crown J.R. Bonner for the Accused