R. v. Carvery, 2014 NSPC 54

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Carvery, 2014 NSPC 54 Date: July 25, 2014 Docket: 2651298 - 2651300 Registry: Halifax Between: Her Majesty the Queen v. Rosella Ordra Carvery TRIAL DECISION Judge: The Honourable Judge Anne S. Derrick Heard: June 25, 26, 27, and July 4 and 11, 2014 Decision: July 25, 2014 Charges: sections 239 , 267 (a), and 268(1) , of the Criminal Code .

Counsel: Carla Ball, for the Crown Brad Sarson, for Rosella Carvery By the Court: Introduction [ 1 ] On September 27, 2013 Beverly Hyslop sustained stab wounds in the course of an argument on Gottingen Street with Rosella Carvery. The Crown has alleged that Ms. Hyslop was stabbed by Ms. Carvery. Ms. Carvery, testifying in her own defence, denies stabbing Ms. Hyslop or even having a knife in her possession. Ms. Hyslop gave evidence for the Defence and testified that she inflicted the wounds on herself as a reaction to being very upset with Ms. Carvery. Reasonable Doubt and the Presumption of Innocence [ 2 ] Ms.

Carvery was charged with attempted murder, aggravated assault and assault with a weapon. At the conclusion of the evidence, the Crown indicated that a conviction for attempted murder was no longer being sought against Ms. Carvery and I acquitted her of that charge, count 1 on the Information. [ 3 ] The Crown must prove the remaining charges against Ms. Carvery - aggravated assault and assault with a weapon - beyond a reasonable doubt. There is no onus on Ms. Carvery to establish her innocence and she is presumed innocent until proven guilty beyond a reasonable doubt. These are incontrovertible principles.

A Brief Overview of What Happened [ 4 ] It is undisputed that around 8:30 on the morning of September 27, Ms. Carvery and Ms. Hyslop got into a heated argument. This was observed by witnesses and captured on the security camera of Big Al’s, a convenience store at 2326 Gottingen Street. Ms. Carvery and Ms. Hyslop also each testified about what happened between them outside Big Al’s but they vehemently deny that Ms. Carvery used a knife or anything else to wound Ms. Hyslop. [ 5 ] When police arrived on scene they arrested Ms. Carvery at Big Al’s and attended to Ms.

Hyslop who was agitated and upset and bleeding from a wound to her arm. [ 6 ] EHS transported Ms. Hyslop to the hospital. At the hospital Ms. Hyslop’s wounds were examined. According to Exhibit 14, an Agreed Statement of Facts and Issues, they consisted of the following:

A 2 centimeter diameter penetrating stab wound to the outside area of her right arm in the elbow region. Ms. Hyslop’s brachial artery, a major blood vessel in her arm, required repair by surgery. A superficial wound to her left chest. This was cleaned and closed with 4 stitches. The muscles under the breast tissue were not injured as a result of this stab wound. [ 7 ] Crown and Defence have agreed that Ms. Hyslop’s wounds were consistent with a knife wound. [ 8 ] Ms. Hyslop testified that she has made a complete recovery from her chest and arm wounds.

Her chest wound healed in a couple of days and her arm was healed about two weeks after surgery on September 27. She has suffered no lasting effects. The Origins of the Conflict [ 9 ] Ms. Carvery and Ms. Hyslop had been up all night at a local crack house, indeed likely for longer than that, using crack cocaine and injecting pills. They both had serious drug abuse problems and were living in a local shelter for women. For several years they had been in an intimate relationship. They testified that when they left the crack house on the morning of September 27, they were already having conflict.

The reason they gave is that Ms. Carvery was in possession of pills that Ms. Hyslop, with her severe addiction to prescription drugs, wanted. Ms. Carvery would not give the pills to Ms. Hyslop and was insisting that Ms. Hyslop leave her alone. Ms. Hyslop was determined to follow Ms. Carvery and kept pestering her for the pills. Ms. Carvery testified that when they reached Gottingen Street Ms. Hyslop was pushing her down the street toward Big Al’s and they were fist fighting. [ 10 ] No witnesses were produced to testify about the interaction between Ms. Carvery and Ms.

Hyslop before they arrived on Gottingen Street. The first “sighting” of them is on video footage from the inside of Big Al’s. This footage, Exhibit 7, camera view 2, 49,280 KB, I will call the “inside Big Al’s” footage. [ 11 ] The “inside Big Al’s” footage shows Ms. Carvery calmly paying at the cash for cigarettes and lottery tickets. Ms. Hyslop is standing off to the left behind her and near the door of the store. They leave together, without appearing to interact, Ms. Carvery first with Ms. Hyslop behind her.

This is at 20:26 a.m. (I will note here that Crown and Defence have agreed the Big Al’s security footage is incorrectly time-stamped 12 hours ahead of the actual time so 8:26 a.m. is shown on the footage as 20:26. The times I use in these reasons when discussing the video footage are the Big Al’s time-stamp times.) [ 12 ] The “inside Big Al’s” footage shows Ms. Hyslop with her hands in the front pocket of her grey hoodie. Discernable movement indicates her hands were fidgeting inside the pocket. Ms. Hyslop testified this was because she had a knife. [ 13 ] The next time Ms.

Carvery is seen on the “inside Big Al’s” footage, it is eight minutes later at 20:35 and she has entered the store in a more agitated state. She tries to hand what appears to be a black grocery-type cloth bag over the counter to the woman at the cash. The cashier waves it away and Ms. Carvery deposits the bag in front of the counter. The police arrive and motion Ms. Carvery to put her hands on her head. She is then arrested and her handcuffing in the street, just outside Big Al’s is caught on another of Big Al’s security cameras. [ 14 ] After Ms.

Carvery was arrested and taken to the Gottingen Street police station, her clothes were seized and searched. There was nothing found in her pockets. The Defence submits I should not infer from this that Ms. Carvery had not been carrying the pills she and Ms. Hyslop claim Ms. Hyslop wanted. They could have been in the black cloth bag Ms. Carvery left in Big Al’s. I will note that it was Ms. Carvery’s evidence she had stashed the pills in the pocket of her hoodie. The Investigation at the Scene on Gottingen Street [ 15 ] Det/Cst. Robert Furlong with the Halifax Regional Police Forensic IDENT

section was at the scene outside Big Al’s at 9:25 a.m. on September 27. He placed police evidence markers 1, 2, 3, and 4 along a blood trail on the sidewalk just south of Big Al’s. These markers are shown in various photographs taken at the scene, including photograph #12 in Exhibit 3. Det/Cst. Furlong testified that the blood looked fresh. Although the stains were swabbed the swabs were not sent for analysis as Det/Cst. Furlong had been informed that there was only one person stabbed and therefore only one blood-letting person.

The evidence at the trial confirms this. [ 16 ] Also found in the area south of Big Al’s was a knife with a broken handle. This knife was seized by Det/Cst. Furlong in a vacant, overgrown lot between Big Al’s and Kit Kat Pizza, a store just south of Big Al’s. The blood trail crossed in front of the vacant lot. The knife was identified by police exhibit marker 8. It can be seen in Exhibit 3, photographs 30, 31 and 32. [ 17 ] Det/Cst. Furlong identified the vacant lot knife in photographs 38 and 40 of Exhibit 3. He testified that he swabbed the knife blade and handle before the photographs were taken by Det/Cst.

Patrick Tucker. Those swabs were sent for DNA analysis. The DNA typing profile from the swab of the blade of the vacant lot knife matched a DNA sample obtained by consent from Ms. Hyslop. The “estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 1.5 trillion.” ( Exhibit 5, Forensic Science and Identification Services Laboratory Report, page 2) [ 18 ] Another knife was also seized in the area. Across the street from Big Al’s, on the eastern side of Gottingen Street, the police investigators located a knife in a storm drain.

They identified it with Police Exhibit Marker #7. The swabs from this knife were not sent for analysis. Det/Cst. Furlong formed the opinion that the knife, which was dusty and had some rust on the handle, had been in the drain for some time. It was his view that the vacant lot knife, discovered shortly afterwards, was the more significant find.

The Big Al’s Security Camera Footage of Gottingen Street [ 19 ] Big Al’s had a security camera with a south-facing view of Gottingen Street from the front door of the store. (Exhibit 7, camera view 3, 45,568 KB) I will call this the Gottingen Street footage. [ 20 ] The camera that captured the Gottingen Street footage was located inside the store. It filmed through a window so the image,

particularly in the distance, is grainy. Ms. Carvery and Ms. Hyslop can be seen quite distinctly although as they move south, away from the camera, it is harder to make out what is happening. [ 21 ] The Gottingen Street footage confirms that Ms. Carvery and Ms. Hyslop were not getting along on the morning of September 27. Although there was no interaction between them when Ms. Carvery was first in Big Al’s buying cigarettes, out on the street they were in an agitated state. Although there is no audio it does appear that they were yelling at each other.

In broad strokes what occurred was this: after yelling at and circling each other, first Ms. Hyslop and then Ms. Carvery go out of view of the camera. When they come back into view at 20:33:37, Ms. Hyslop runs south on Gottingen and Ms. Carvery chases her. Ms. Carvery appears to be thrusting something in Ms. Hyslop’s direction. Right after this, Ms. Hyslop has her right arm extended out with the sleeve pulled up. At this point, at 20:33:50, Ms. Carvery is walking away from Ms. Hyslop plainly indifferent to what appears to be Ms. Hyslop’s distress. Ms. Hyslop seems to be trying to get Ms. Carvery’s attention.

The way she is holding her arm out to her side suggests it has been injured. She does not use the arm while she is following Ms. Carvery, she just sticks it out like a bird with a broken wing. [ 22 ] As Ms. Carvery and Ms. Hyslop move in a northerly direction outside Big Al’s, Ms. Carvery appears to have something in her left hand. (She testified that she is left-handed.) Her hand is hanging down by her side as she moves about just outside Big Al’s. She then slips something from it into the back left pocket of her jeans. [ 23 ] At this point both Ms. Carvery and Ms. Hyslop go out of sight of the camera. When Ms.

Carvery reappears at 20:34:51 it looks as though she may have been out in the street, perhaps crossing it. She goes in the direction of the vacant lot and although it is very difficult to see clearly, appears to bring her hand up in a motion that is consistent with tossing something. She then walks up to Big Al’s and goes inside. Police officers can be seen rushing up the street, past Ms. Hyslop at 20:35:22 who is still wandering about looking distressed. Seconds later Ms. Carvery has been arrested. The Evidence of Pamela Harrison [ 24 ] When Ms.

Carvery is arrested, a woman can be seen standing slightly south of Big Al’s watching what is happening. This was Pamela Harrison who testified for the Crown. It was her evidence that as she was driving down Gottingen Street a few minutes earlier, she had seen two unknown women fighting with each other. This was Ms. Carvery and Ms. Hyslop. Ms. Harrison testified that she saw some vigorous pushing and shoving and moving around. Ms. Harrison could not tell who was the primary aggressor but the conflict seemed to be escalating. [ 25 ] Ms.

Harrison thought she might be able to de-escalate the situation and so looked for a safe place to park her car. She found a spot further south on Gottingen Street. [ 26 ] Ms. Harrison testified that once parked she could see Ms. Carvery and Ms. Hyslop from where she was standing behind the opened passenger-side door of her car. They were on the Big Al’s side of Gottingen Street, the same side as Ms. Harrison. Ms. Harrison said she saw Ms. Carvery with something in her hand that looked like a knife with a 4 to 6 inch blade. Ms. Harrison’s evidence was that she saw Ms.

Carvery’s arm making thrusting motions, a stabbing motion, with the implement. Although Ms. Harrison testified on direct examination that she saw Ms. Carvery make contact with Ms. Hyslop, first on her arm, with blood appearing, on cross-examination she said she could not say she saw the object in Ms. Carvery’s hand make contact. [ 27 ] Ms. Harrison testified that after the stabbing motion by Ms. Carvery she saw blood on Ms. Hyslop’s right arm that she had not seen before. She thinks it was the upper portion of Ms. Hyslop’s right arm, midway between her elbow and shoulder, that was bleeding.

She saw no other blood from anywhere else on Ms. Hyslop’s body. [ 28 ] It was Ms. Harrison’s evidence that she saw the stabbing motion by Ms. Carvery before 20:32:22 on the video. [ 29 ] Ms. Harrison did not move closer to the women until Ms. Carvery went across to the other side of the street. She testified that while Ms. Carvery was across the street on the east side of Gottingen Street, it appeared that she threw something toward the apartment building there. [ 30 ] It was Ms. Harrison’s recollection that Ms. Hyslop followed Ms.

Carvery across to the east side of Gottingen Street and then they came back across the street together, back to the west side of Gottingen and Big Al’s. Ms. Harrison saw Ms. Carvery go into one of the stores on that side of the street. [ 31 ] When Ms. Harrison was shown the Big Al’s video footage she was able to identify a billboard some distance in a southerly direction from Big Al’s where she parked. She testified that she had seen the knife while she was still driving down Gottingen Street.

At that time she says she was a car length or a car length and a half away from the women and concentrating on finding a place to pull over and park. The Evidence of Fred Carter [ 32 ] The Crown also led evidence from another civilian witness, Fred Carter. On September 27, Mr. Carter was working as a locksmith on the east side of Gottingen Street at Ahearn Manor. Ahearn Manor can be seen in the photographs taken by Cst. Tucker of the scene. It is located across from Big Al’s and the vacant lot. [ 33 ] Mr.

Carter, who was putting in keypad entrances for the front and rear doors at Ahearn Manor, had returned to his truck for some tools. It was parked on Gottingen Street where Mr. Carter noticed a few people standing and watching a couple of women in a scuffle. The women were on the opposite side of Gottingen Street from Mr. Carter. Viewing photograph 2 in Exhibit 3, Mr. Carter testified that what he saw was closer to Kit Kat Pizza, that is south of Big Al’s. [ 34 ] It is apparent Mr. Carter was witnessing Ms. Carvery and Ms. Hyslop in a fight. It looked to Mr. Carter that Ms. Carvery was swinging at Ms.

Hyslop who was “trying to defend herself.” Mr. Carter described that as Ms. Hyslop “moving away, running away.”

[ 35 ] It was suggested to Mr. Carter in cross-examination that Ms. Hyslop had taken some swings at Ms. Carvery but he disagreed. He recalled no swings on the part of Ms. Hyslop and said that when he observed Ms. Hyslop move toward Ms. Carvery during their altercation, it seemed to him that Ms. Hyslop was taunting Ms. Carvery. He thought she was showing some bravado coming toward Ms. Carvery like that. [ 36 ] Mr. Carter testified that when Ms. Carvery was swinging at Ms. Hyslop with her fist above her head, bringing it down, Ms. Hyslop would bring her arms up. They were about a foot apart. After Ms.

Carvery had taken two to three swings at Ms. Hyslop, Mr. Carter testified he heard Ms. Hyslop say, seconds later, “You cut me” to Ms. Carvery. [ 37 ] Mr. Carter estimated he was directly opposite the women and about 30 – 40 feet away when he heard this said. On cross- examination he agreed it could have been as far as 50 – 60 feet. He described the tone as “shocked, raised” and said Ms. Hyslop was holding her arm out to her side at waist height. When the words were said Ms. Carvery was walking away. Although Mr.

Carter agreed on cross-examination that he did know either woman’s voice, he noted that the words came from the direction of Ms. Hyslop. [ 38 ] Mr. Carter had a clear view of the events and no trouble seeing and hearing what was happening. He testified that Ms. Hyslop’s sleeve was rolled up the whole time he witnessed the incident and that he saw what he thought was blood on Ms. Hyslop’s arm and shirt after she said “You cut me.” It was his evidence that Ms. Carvery had something in her right hand, the hand she was using to do the swinging, something that had a “gleam”. It was not a “shiny” gleam. Mr.

Carter thought it was a phone. [ 39 ] Mr. Carter watched as the police arrived and arrested Ms. Carvery. He thought this was about a minute after he had started watching the women. The Evidence of Ms. Carvery [ 40 ] Ms. Carvery did not start September 27 in a very good frame of mind. She had hoped to enjoy her birthday, which she had been planning to celebrate the day before with Ms. Hyslop. Her plans had gone awry due to a number of factors and she and Ms. Hyslop had spent their time together at a neighbourhood crack house in Ms.

Carvery’s words: “getting high, doing pills, no sleep, no food.” [ 41 ] On the morning of September 27, Ms. Carvery told Ms. Hyslop she was going to the methadone clinic and to walk her granddaughter to school. She didn’t want Ms. Hyslop to come with her. She wanted Ms. Hyslop to go and wait for her at the women’s shelter. She testified that she left the crack house with a friend’s pills in her pocket, having been asked by her to safeguard them. Ms. Carvery and Ms. Hyslop each testified that as they walked along towards Gottingen Street, Ms. Hyslop was badgering Ms. Carvery for the pills. [ 42 ] Ms.

Carvery testified that on her way to Big Al’s, Ms. Hyslop was pushing her because she was angry about Ms. Carvery’s refusal to hand over the pills. They started fist fighting and Ms. Hyslop continued to push Ms. Carvery from behind. Ms. Carvery tried to shoo her away with her right arm. Outside Big Al’s, Ms. Hyslop wouldn’t let Ms. Carvery go in. Ms. Carvery went in and Ms. Hyslop remained outside. Once Ms. Carvery came back out, the fighting started up again. Ms. Carvery testified that she and Ms. Hyslop were swinging at each other, Ms. Carvery with closed fists and swinging her arms out at chest level.

She then said: “And then everything was so fast, I don’t really remember…” [ 43 ] Ms. Carvery provided many more details about what happened in the minutes between when she came out of Big Al’s and her arrest. She denied ever having a knife. She testified that she does not remember what she had in her hands but knows it was not a knife. It was her evidence that Ms. Hyslop didn’t have a knife either and was just using her fists. There was a lot of name calling and verbal abuse. [ 44 ] Ms.

Carvery testified that after she came out of Big Al’s she started across the street toward the east side of Gottingen and Ahearn Manor. Ms. Hyslop followed but Ms. Carvery doubled back and Ms. Hyslop kept going. Ms. Carvery lost sight of her until Ms. Hyslop came back with her arm raised, bent at the elbow and out in front of her. Her sleeve was pushed up and she was trying to get Ms. Carvery to look at her arm. Ms. Carvery didn’t want to, she was in an upset state, and kept telling Ms. Hyslop to leave her alone and get away from her. [ 45 ] At this time, when Ms.

Hyslop came back across to the west side of Gottingen Street where Ms. Carvery was, she hit Ms. Carvery on the head which hurt. It made Ms. Carvery angry. She wanted to hit Ms. Hyslop back and pursued her with this in mind. [ 46 ] Ms. Carvery testified that at 20:34:53 on the Gottingen Street footage, she is back in view after being over by Ahearn Manor on the east side of Gottingen Street talking to her cousin who was standing on her second-floor balcony. Shortly after this she was arrested at Big Al’s. [ 47 ] Ms. Carvery denied stabbing Ms. Hyslop. She said that Mr.

Carter’s ears must have “deceived him.” She did not make stabbing motions at Ms. Hyslop as Ms. Harrison claimed to have seen. She testified she was making punching motions to defend herself from Ms. Hyslop who was a couple of inches taller and about 100 pounds heavier than Ms. Carvery. [ 48 ] On cross-examination, Ms. Carvery said that although upset, she was not impaired on the morning of September 27 as she had not smoked any crack since sometime during the night before. She described the incident with Ms. Hyslop as “fussing for a minute.” She said that Ms.

Hyslop was mad at her but that when they were in Big Al’s they stopped fighting because there were children present. Leaving Big Al’s with her purchases, Ms. Carvery went across Gottingen Street and talked to her cousin who was standing on her balcony. Ms. Hyslop followed her but she lost sight of her. Ms. Carvery then went back to the Big Al’s side of Gottingen. Ms. Carvery testified: “Bev was coming after me and trying to get around me.” She “whacked” Ms. Carvery across the head and Ms. Carvery ran after her to punch her back. She had nothing in her hand when she went to punch Ms.

Hyslop and never connected with her. Ms. Carvery gave this evidence when viewing Big Al’s Gottingen Street footage at 20:33:48. It is at 20:34:14 that Ms. Carvery she says she noticed Ms. Hyslop’s sleeve was up and she asked her what had happened. She noticed the blood and was concerned about her. The Evidence of Ms. Hyslop

[ 49 ] Ms. Hyslop confirmed Ms. Carvery’s evidence that September 27 followed a few days of drugs abuse and disappointments associated with Ms. Carvery’s birthday. Ms. Hyslop testified: “This wouldn’t have happened if we hadn’t been under the influence.” [ 50 ] It was Ms. Hyslop’s evidence that as she and Ms. Carvery were walking to Gottingen Street from the crack house she wouldn’t leave Ms. Carvery alone even though that is what Ms. Carvery wanted. Ms. Hyslop testified that she was very agitated and demanding about the pills Ms. Carvery had. She and Ms.

Carvery were yelling back and forth at each other. [ 51 ] Ms. Hyslop recalls waiting outside Big Al’s for Ms. Carvery but the Big Al’s inside footage (Exhibit 7, camera view 2, 49,280 KB) shows this is incorrect. Ms. Carvery’s testimony indicates she had the same inaccurate recollection of this. [ 52 ] When they left Big Al’s, Ms. Carvery still refused to give Ms. Hyslop the pills. It was Ms. Hyslop’s evidence that in response, as a way to get Ms. Carvery’s attention, she tried to cut her arm but the knife she was carrying wasn’t sharp enough. She said she had a problem with self-harm.

She then “jabbed” herself in the chest but didn’t really feel it. She testified she tried to cut her arm and jabbed herself in the chest while Ms. Carvery was in Big Al’s or just coming out. When Ms. Carvery came out she saw the knife and the cut to Ms. Hyslop’s chest and said: “What are you doing?” Ms. Hyslop responded by saying: “This will get you to give me the pills.” [ 53 ] Ms. Hyslop testified that at this point Ms. Carvery said, “Get away from me” and Ms. Hyslop stabbed herself in the arm. She did this by JJ Mart which can be seen in photograph 2 of Exhibit 3. Ms.

Carvery tried to walk away in a northerly direction and Ms. Hyslop headed south. Ms. Carvery started to follow her. They were yelling at each other. [ 54 ] When the police came, Ms. Hyslop says she was “bum-rushed” by them, grabbed by the shoulders and had her feet kicked out from under her. She kept telling the police that Ms. Carvery hadn’t done anything. She testified that she never said, “You cut me.” It was Ms. Hyslop’s evidence that she told Ms. Carvery, “You got me” meaning that Ms. Carvery had fooled her by keeping the pills which Ms. Hyslop had been unsuccessful in getting back. [ 55 ] Ms.

Hyslop testified that she does not remember where the knife went that she had used to cut herself. She “thinks” she threw the knife, “somewhere around the store I guess…” She identified the vacant lot knife as the knife she had on the morning of September 27. [ 56 ] In viewing the Big Al’s video footage from inside the store, (Exhibit 7, camera view 2, 49,280 KB) Ms. Hyslop identified herself standing behind Ms. Carvery as Ms. Carvery purchased something at the counter.

She testified that the movement of her hands in the front pocket of her hoodie was her “playing with something.” She said she thought she was “playing with the knife.” She then said she was sure she had the knife in her hand inside her hoodie pocket and that her anger was spiking because Ms. Carvery would not give her the pills she wanted. [ 57 ] It was apparent from Ms. Hyslop’s testimony that she was having trouble recalling the sequence of events for the morning of September 27.

When she was shown the Big Al’s Gottingen Street footage (Exhibit 7, camera view 3, 45,568 KB), she couldn’t really say what was happening from 20:33:40 to 20:34:18 where Ms. Carvery can be seen chasing her, there is a confrontation, and then Ms. Carvery walks away. Ms. Hyslop said that she and Ms. Carvery were fighting and she went to grab something from her. She did not remember seeing anything in Ms. Carvery’s hand. [ 58 ] Ms. Hyslop was quite muddled about when she walked across to the east side of Gottingen Street and came back and when she stabbed herself in the sequence of events.

She testified that at 20:35:06 on the Gottingen Street footage, she had returned from the east side of the street. She testified that she can be seen in the video showing Ms. Carvery her arm and blaming Ms. Carvery for the injury she has inflicted on herself. At 20:35:08 she is walking south on Gottingen Street away from the camera. Ms. Carvery goes into Big Al’s and the police arrive and arrest her. [ 59 ] Ms. Hyslop testified that right from the moment the police came on the scene she told them Ms. Carvery had not stabbed her. She says she remembers yelling to the police as they arrested Ms.

Carvery, “she didn’t do it, why is she in handcuffs?” [ 60 ] It was Ms. Hyslop’s evidence that she was in a lot of pain but primarily worried about Ms. Carvery. She says she kept asking where Ms. Carvery was and was she okay. Ms. Hyslop was adamant in her testimony that she kept insisting to the police that Ms. Carvery had done nothing to her but that no one listened. [ 61 ] On cross-examination, Ms. Hyslop testified that she got the knife from the kitchen of the Maynard Street crack house where she and Ms. Carvery had been doing drugs.

She had the knife on her when she left the crack house and was walking to Gottingen Street. She was not walking with Ms. Carvery because they were having conflict. [ 62 ] It was Ms. Hyslop’s evidence on cross-examination that she used the knife to stab herself in the chest first and then in the arm while she was holding it over her chest wound. She said she was on the east side of Gottingen Street when she did this and then crossed the street back to Big Al’s, pulled up her sleeve and showed her wounded arm to Ms. Carvery. Ms.

Hyslop testified that she hurt herself when she stabbed her arm and didn’t see the blood right away. She saw the blood when she pulled up her sleeve. [ 63 ] After this description in response to the Crown’s questions, Ms. Hyslop said she was having trouble remembering where she was when she stabbed herself. She said she doesn’t really remember where she stabbed herself. In her words: “I am trying to remember the sequence of the fight. My memory is very fogged.” Ms. Hyslop described doing “plenty” of drugs at the crack house and then while walking down the street from the house, popping five Valium pills.

She acknowledges that on the morning of September 27, she was “pretty intoxicated.” [ 64 ] It was Ms. Hyslop’s evidence that after she had stabbed herself in the chest but before she stabbed herself in the arm, she pushed Ms. Carvery. At this point in her evidence on cross-examination, Ms. Hyslop testified that she had stabbed herself in the chest soon after she turned on to Gottingen Street before she and Ms. Carvery reached Big Al’s and went inside together. Ms. Carvery was not listening to her, not paying any attention to her entreaties about the pills. [ 65 ] It was apparent to me that Ms.

Hyslop’s reconstruction of the events is completely unreliable. She identified several different

locations for where she stabbed herself. She cannot remember why she ran down the street with Ms. Carvery chasing her. She does notremember where the knife was when she was showing Ms. Carvery her wounded arm. She testified that she remembers throwing it butshe does not recall where or when she did so after she stabbed herself. She later said, “I am guessing I threw it”, which does not representa recollection of throwing the knife she claims to have had. [66] Ms. Hyslop denied telling a police officer that Ms. Carvery stabbed her.

She does not recall telling police the other things thatpolice officers recorded in their notes. (Exhibit 17, Admissions of July 4, 2014) She was certain she told the police repeatedly that Ms.Carvery was not responsible. [67] Ms. Hyslop was asked by the Crown about her relationship with Ms. Carvery and she made it clear that Ms. Carvery is veryimportant to her. No matter what, Ms. Hyslop said, she loves Ms. Carvery and hopes they can be together if they can get their addictionsunder control. Analysis of the Evidence [68] Although at one point in her testimony, Ms.

Carvery claimed she had been making punching motions at Ms. Hyslop, who is tallerand heavier, there is no evidence that shows Ms. Carvery acting in self-defence. I was advised by Mr. Sarson in his closing submissionsthat this is not a case of self-defence. Ms. Carvery’s defence is that she did not do what she is accused of doing: she did not stab Ms.Hyslop. [69] This is a W.(D.) case. Ms. Carvery’s testimony must be assessed in accordance with R. v. W.(D., (SCC), [1991]S.C.J. No. 26. The W.(D.) principles require me to acquit Ms.

Carvery if I believe her testimony; if her testimony raises a doubt even if Ido not believe it; and, if on the whole of the evidence I have a doubt even if I do not believe Ms. Carvery. However I am not to assessMs. Carvery’s evidence in a vacuum, isolated from all the evidence I have heard. [70] Since W.(D.), the Supreme Court of Canada has clarified the obligation that rests on a trial judge deciding a case that turns oncredibility. In R. v. Dinardo, 2008 SCC 24 , [2008] S.C.J.

No. 24, the Supreme Court confirmed “there is nothing sacrosanctabout the formula set out in W.(D.)” and noted that “the assessment of credibility will not always lend itself to the adoption of the threedistinct steps suggested in W.(D.); it will depend on the context.” What matters, said the Court, …is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility… the trial judge must direct his or hermind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonabledoubt as to her guilt.

Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyonda reasonable doubt.” (Dinardo, paragraph 23) [71] What I must determine then is whether Ms. Carvery’s evidence about her interactions with Ms. Hyslop on September 27,considered in the context of the evidence as a whole, raises a reasonable doubt about her having been responsible for the stabbing. [72] In considering all of the evidence, I will note that I can accept all, some, or none of a witness’ evidence.

Witnesses who endeavourto recall truthfully what they saw and heard may be mistaken or their memories may have deteriorated. As Ms. Hyslop admitted duringher cross-examination, her memory has been affected by the passage of time, the fact that everything happened so fast, and the impairingeffects of the drugs she had taken. [73] There is evidence in this case that is not subject to the frailties of memory and eye witness observation, and that is the Big Al’ssecurity video footage. While it must be interpreted, it is a reliable, accurate, and dispassionate observer of the events. (R. v.

Nikolovski, (SCC), [1996] S.C.J. 122, paragraph 21) [74] And there is other reliable evidence, for example, the blood trial just south of Big Al’s and the vacant lot knife with Ms. Hyslop’sDNA on it. I am satisfied that the vacant lot knife was the knife used to inflict Ms. Hyslop’s wounds. I also find that Ms. Hyslop wasbleeding in the area just south of Big Al’s, in the vicinity of the vacant lot. The only reasonable inference is that this was the area whereMs. Hyslop sustained the most serious stab wound, the one to her right arm. [75] Of course the Big Al’s Gottingen Street footage does not show all of Ms.

Carvery’s and Ms. Hyslop’s interactions as they were off-camera at various times. However what the footage shows is crucial to is the issue of whether Ms. Carvery’s testimony raises areasonable doubt as to her guilt. [76] As I noted earlier in these reasons, when inside Big Al’s Ms. Carvery and Ms. Hyslop were calm. They left the store together at8:26 a.m. Seven minutes later the dynamic has changed dramatically. [77] At 20:33:37 on Big Al’s Gottingen Street footage, Ms. Hyslop comes into view, running south down Gottingen Street. Her rightsleeve is pushed up on her arm.

She used both her arms in a moderate pumping motion as she runs. She does not appear to be injured. Ms.Carvery is pursuing her with her left arm out, apparently clutching something in her left hand. She and Ms. Hyslop appear to have anencounter in the area in front of the vacant lot. [78] At 20:33:50, Ms. Carvery has started to walk away, north on Gottingen Street. Ms. Hyslop trails behind her. She has her right armextended out from her body, like the wing of an injured bird. At 20:33:56, they both stop and look south on Gottingen for a couple ofseconds.

Watching this it occurred to me they were noticing Pamela Harrison although no matter how often I viewed the footage I wasunable to see Ms. Harrison until the point when Ms. Carvery was arrested. [79] At 20:33:58, Ms. Carvery continues to walk north toward Big Al’s. It is a short distance from the vacant lot. Ms. Hyslop continuesto follow her with her right arm extended. It is apparent she has been hurt. She makes no use of her arm and carries it as though she hasbeen wounded. [80] Outside Big Al’s, the Gottingen Street camera captures a clear image of Ms. Carvery carrying something in her left hand. It is a

slim object that she holds as one would a knife. At 20:34:11 Ms. Carvery slips the object in the back pocket of her jeans. [81] Ms. Carvery and Ms. Hyslop are off-camera for less than a minute after this. Ms. Carvery comes back into view at 20:34:51 whenshe steps back onto the west, that is, the Big Al’s side of Gottingen Street. She briskly walks south to an area consistent with the locationof the vacant lot. She stops fleetingly and then turns away at 20:34:56. [82] Seconds later a police car with its emergency lights flashing can be seen arriving just south of where Ms. Carvery had been.

Ms.Hyslop is wandering up and down the street outside Big Al’s still favouring her arm. [83] What is apparent to me from watching the Big Al’s Gottingen Street footage is that when Ms. Carvery chased Ms. Hyslop, Ms.Hyslop’s arm was not injured. Ms. Hyslop showed signs of being wounded after Ms. Carvery had caught up to her near the vacant lot.This is the vicinity where the blood trail was found. At 20:33:50 Ms. Carvery had started to walk away from Ms. Hyslop. Ms. Hyslopfollowed her and it is apparent at 20:34:02 on the Gottingen Street footage that she has nothing in her hands. However Ms.

Carvery does,an object consistent with a knife, that is not located when police search her clothing and the black cloth bag she left in Big Al’s justbefore being arrested. [84] A knife with Ms. Hyslop’s DNA is found in the vacant lot, the area which Ms. Carvery heads toward just before the police arriveon the scene. [85] Ms. Carvery’s evidence that she merely punched at Ms. Hyslop, had no knife, and had nothing to do with the stabbing is simply notcredible. It is not consistent with the Big Al’s Gottingen Street footage. It is not consistent with the blood trail evidence which shows thatin the area where Ms.

Carvery claims to have been punching at Ms. Hyslop, Ms. Hyslop was bleeding. And I do not believe that Ms.Carvery did not have a knife in her possession. Not only does the Gottingen Street footage clearly show an object in Ms. Carvery’s lefthand that is consistent with a knife, the knife that stabbed Ms. Hyslop was located in the vacant lot. It is in the area of the vacant lot thatMs. Carvery can be seen for a fleeting, stationery second just before she slips into Big Al’s as the police arrive. [86] I find that the object Ms. Carvery was holding just after the altercation with Ms. Hyslop was a knife that Ms.

Carvery then tossedinto the vacant lot just before she was arrested. It was the knife that Ms. Carvery used to stab Ms. Hyslop. There is no evidence thatsupports an inference that Ms. Hyslop discarded the knife. [87] Quite apart from Ms. Carvery’s testimony, I also do not find Ms. Hyslop’s version of events credible. Ms. Hyslop’s evidence abouthow she came to stab herself was inconsistent, vague, and not credible. Despite admitting to a very foggy memory of the events, Ms.Hyslop was able to recall that she did not say to Ms. Carvery, as Mr. Carter claimed to have heard, “You cut me”.

She had an explanationfor what she would have said that sounded similar. It was apparent to me that Ms. Hyslop’s memory of events was a memory thatfavoured Ms. Carvery’s interests and not a memory that can be trusted and relied upon. I do not accept her claim that she stabbed herself.Her demeanor on the Gottingen Street footage is not consistent with her having stabbed herself, more seriously than intended, to get Ms.Carvery’s attention. It is only consistent with Ms. Hyslop’s shock and distress at having just been stabbed by Ms.

Carvery. [88] I have not relied on the evidence of Pamela Harrison although I accept that she endeavoured to provide a truthful account of whatshe observed. I simply could not see from the Gottingen Street footage where she was standing when Ms. Carvery went after Ms. Hyslop.In light of this, I am unable to assess the accuracy and reliability of her evidence. [89] I am satisfied that Fred Carter’s evidence is credible and, in most respects, reliable. I accept that he had a good view of Ms. Carveryand Ms. Hyslop and was able to accurately recall what he saw.

What he described is consistent with the Big Al’s Gottingen Streetfootage and augments it by providing a perspective of the interaction between Ms. Carvery and Ms. Hyslop that is harder to discern fromthe video. I find that Mr. Carter heard Ms. Hyslop, reacting to being stabbed, say to Ms. Carvery: “You cut me.” I do not find it detractsfrom the reliability of Mr. Carter’s observations that he thought Ms. Carvery had something in her right hand that she was swinging atMs. Hyslop. I find that “something” was the vacant lot knife that Ms.

Carvery had in her left hand, the object that she can been seenholding in the Gottingen Street footage. [90] To be clear, I do not believe either Ms. Carvery or Ms. Hyslop. Ms. Carvery’s evidence does not raise a reasonable doubt as to herguilt and neither does Ms. Hyslop’s. Considered in relation to all the evidence, notably the Big Al’s Gottingen Street footage, the bloodtrail, the location of the knife, and the testimony of Fred Carter, I am left with no reasonable doubt about how Ms. Hyslop got stabbed.Ms.

Carvery stabbed her after chasing her just south of Big Al’s, subsequently tossing the knife into the vacant lot less than a minutebefore her arrest. [91] In making submissions on reasonable doubt, Mr. Sarson in his customarily thorough way, pointed to a small cut in the fabric of Ms.Hyslop’s hoodie right arm sleeve. This can be seen in photographs - for example, photograph #6 in Exhibit 9 - that police took of Ms.Hyslop’s clothing. The cut is consistent with the entry of a edged object, like a knife, when the sleeve was down. The fact that there is noblood around the cut is consistent with Ms.

Hyslop’s sleeve being up when she was stabbed, which is what I observed on the GottingenStreet footage. In that case however, how did the cut in the fabric get there? I do not know. However, it is enough for me to say that thepresence of the cut in the fabric of Ms. Hyslop’s hoodie sleeve does not cause me to question how Ms. Hyslop got stabbed. Havingreviewed all the evidence I am satisfied beyond any reasonable doubt that Ms. Hyslop was stabbed by Ms. Carvery. [92] It is apparent to me that on the morning of September 27, Ms. Carvery and Ms.

Hyslop were in a very bad way, primarily as aconsequence of their marginalized existences and the destructive effects of their drug addictions. Interpersonal conflict escalated and Ms.Carvery resorted to using the knife she was carrying to stab Ms. Hyslop. What she and Ms. Hyslop now recall about those events is notwhat happened. It may be what they want to think happened as it is a narrative that absolves Ms. Carvery of responsibility but the Crownhas proven beyond a reasonable doubt that it is neither credible nor reliable. [93] Accordingly I find Ms.

Carvery guilty of aggravated assault and assault with a weapon, a knife. The conviction for assault with aweapon is stayed in accordance with the principles in R. v. Kienapple, (SCC), [1974] S.C.J. No. 76.