R. v. Gunning, 2012 BCPC 183

Citation: R. v. Gunning, Jondreau, Ramos, Reno, Toth Date: 20120511 2012 BCPC 0183 File No: 30378-2-C Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Ban on publication pursuant to s. 517(1) CCC REGINA v. CALVIN SEAN GUNNING JEREMY DRAKE JONDREAU JORDON ANTHONY RAMOS JORDON CHRISTIAN RENO JOSHUA IVAN TOTH REASONS FOR JUDGMENT (Re: Gunning, Ramos, Reno and Toth) OF THE HONOURABLE JUDGE D. J. O'BYRNE Counsel for the Crown: J. Temple Counsel for the Defendant, Gunning: K. Jones Counsel for Accused Ramos : J. LeBlond

Counsel for Accused Reno: B. Gilson, Q.C. Counsel for Accused Toth: D. MacLeod Place of Hearing: Fort St. John , B.C. Date of Judgment: May 11, 2012 [ 1 ] THE COURT: These are my reasons on File 30378-C2 wherein Calvin Sean Gunning, Jeremy Drake Jondreau, Jordan Anthony Ramos, Jordan Christian Reno, and Joshua Ivan Toth stand charged on Information 30378-C2 out of the Fort St.

John Registry with 40 counts ranging from assaults with weapons, assaults causing bodily harm, pointing a firearm, aggravated assault, uttering threats, mischief over $5,000, and using a firearm or imitation firearm while assaulting 24 or more people at a beach party near Fort St. John in the early morning hours of July 25, 2010. [ 2 ] The Crown elected to proceed by indictment, and the Defence elected trial in the Provincial Court. The trial commenced in Fort St. John exactly one year later on July 25, 2011.

At the conclusion of the first week of evidence, the trial was adjourned for continuation to November of 2011. [ 3 ] At the commencement of the continuation of the trial, one co-accused, Jeremy Jondreau, was in hospital in Edmonton and unavailable for the recommencement of the trial for health reasons. As a number of the other four co-accused were in custody, I severed Mr. Jondreau from the trial on Information 30378-C2 and continued to hear the evidence of the Crown witnesses. [ 4 ] In total, the Crown presented seven police witnesses and 37 civilian witnesses over the 10 plus days of trial.

Submissions followed and occupied further days of court time. I reserved my decision to allow me the time to review the many volumes of transcripts of evidence, my notes, the exhibits, and the law. FACTS [ 5 ] Ms. K. A. and Ms. M. L. share a common birth date. In order to celebrate their common birth dates, Ms. K. A. purchased three kegs of beer with the intention of having them set up at a frequent party spot on the Beatton River near Fort St John, British Columbia.

While I have no direct evidence of the use of social media to "spread the word" of the impending party, I have no doubt from the use of Facebook, Twitter, and other social media afterwards, and the large number of people who attended the party, over 100, that the news of the party was well known within the community. None of the evidence about the preliminaries of the setting for the party are disputed. Several witnesses described going to the party location around 9 p.m. on July 24 and setting up the kegs as well as starting a bonfire.

Partygoers arrived after the fire or fires were lit. [ 6 ] There was some evidence that there may have been two separate parties at the Beatton River that night, but for the purposes of these reasons, the number of parties is not relevant. [ 7 ] Equally undisputed is the fact that a large number if not all of the people partying on the Beatton River site that night were engaged in consuming large quantities of alcohol.

Simply put, there were very few partygoers who were sober by the time daylight broke on July 25, 2010. [ 8 ] Shortly after 4 a.m., July 25, 2010, police began to get reports of dropped 9-1-1 calls for assistance at the Beatton River party location. As the officers travelled to the area to investigate, they encountered vehicles with smashed windshields and people who had injuries. Those persons dealt with by the police were directed to go to the hospital first for medical treatment and then constables would be attending to speak with the injured parties about what had occurred.

Officers initially attending reported at least five cars with two people or more each with injuries that were heading for the hospital. [ 9 ] Upon arriving at the Beatton River area where the party had occurred, police encountered a number of individuals who required varying degrees of first-aid attention. One individual, Ms. A.C., claimed she had been shot. Other injured individuals approached the attending constables who were trying to establish if there were any seriously injured partygoers.

It is not difficult to conclude that the investigating officers arrived at a very chaotic scene with a large number of injured, intoxicated individuals present. [ 10 ] After securing the party location, the investigating officers did a search to locate any further injured individuals. Further resources such as ambulance attendants arrived. When the dog handler arrived, he had discussions with some of the officers on the scene and was briefed on what they knew.

Armed with this information, the dog handler, Corporal King, commenced patrols and shortly thereafter, at 7 a.m., requested assistance in stopping a vehicle that was travelling towards the Beatton River scene. This vehicle had two occupants, identified later as Jordan Reno and Calvin Gunning. They were arrested at gunpoint at the scene. [ 11 ] After arresting Reno and Gunning, officers continued their investigation by speaking to witnesses both at the hospital and at the detachment.

It is notable that the constables were handicapped in their investigation here by the large number of intoxicated participants, the lack of independent sober witnesses, and the lack of any forensics or hard evidence such as guns, bats, batons, brass knuckles, et cetera. [ 12 ] In addition, as time passed, the ongoing discussions of the events of July 24 to 25 by the witnesses both in person and on live social media further contaminated the evidence available to investigating officers in regard to all of the allegations.

There are many examples of this collective memory occurring throughout the evidence of various witnesses. Specifically, some examples are: The witness T.A. on Day 3, page 5, line 25 to 40: Q People that you knew that were at the party?

A Yes. Q Give me the names if you can, please, of the "they" that told you that the tall man was Josh Toth. A Tim Apsassin. Q Anyone else? A And Myles Reiter. Q So when you're telling Constable Perret that the tall man with the tan that's punching you in the jaw is Josh Toth -- A Yes. Q -- you're repeating what Tim and Myles had told you? A Yes. Q When did they tell you that? A I remember I asked Myles at the hospital when he was in the hospital bed. Q So you have a specific recollection of asking your cousin Myles -- A Yes. Q -- who it was that had punched you?

The witness R.A. on Day 7, firstly at page 52, lines 26 to 28: A Probably like, six, most. Six -- five or six guys. Because there were a couple of other guys we couldn't identify. At Day 7, page 60, lines 36 to 40, the same witness, R.A.: Q . . . All right. Can you tell us anything about this second fellow that was holding Travis's arms? A No, I didn't -- like I said, we only could identify a few of them. Couldn't identify all of them. And lastly, the same witness, R.A., Day 7, page 63, lines 35 to 37: A I -- yeah, there was a couple of other guys. There was other Caucasian guys.

I don't -- like we said, we couldn't identify all of them. The witness S.M., Day 8, page 90, lines 44 to 47: Q And by what name did you know any one of the aggressors? A I learned of his name after. Page 91, lines 3 to 8, the same witness, S.M.: Q . . . How did you learn the name of one of the aggressors? A From -- from one of my friends that was at that party that night. Q All right. How did you know that you and your friend were talking about the same person? A I can’t exactly tell you that.

The witness S.K. on Day 10, page 30, lines 11 to 22: Q Yesterday when you were answering questions for the prosecution, Mr. [K.], you were talking about rocks in vehicle; that you had heard a gun fired and then I wrote this -- this is what I wrote down, "They said it could have been these guys." Now, who is the “they” that was mentioning the names of these guys to you? A I'm not sure at this time. Q Okay. Was it -- A To the best of my knowledge -- or knowledge to try to remember who was telling me. Q All right. Was it people from the beach or was it the police?

A I think it was the beach; people just talking about it and saying it could have been these guys or something. I just took it in. Q Okay. Is that before you went to the police?

A I think so. I'm not sure. And lastly, the witness S.P., Day 10, page 68, lines 17 to 23: Q So what is your estimate of the number of people in this group? A I don't know, five or six maybe. Q All right. A Maybe more. Like before, I thought it was more, but then as -- like as word got around and I heard, I just -- Then at Day 10, page 87, lines 31 to 47, the same witness, S.P.: Q But would you agree, sir, that quite a few people talked to you about what they had seen down at the beach? A No, I never really got too many people to hear all their stories.

Like the word around was just like, "Oh, the shit went down." That this person got hit. Q Okay. A So more of what I heard was just people getting hit in the head really and . . . Q Okay. You didn't hear all that from Randy, though? A No, sir. Q You heard it from a number of different people? A Yeah, just people who were hit basically. Q Okay. A And that have put statements in. Then at Day 10, page 88, lines 1 to 12, the same witness, S.P.: Q Oh, okay. Other people who gave statements to the police? A Yes, sir. Q When did you talk to these other people who gave statements to the police?

A Weeks to months after it happened. It's just like running into them, they'd be like, "Whoa, how's -- how are you doing?" you know. Q Oh, yeah. A "What happened?" Q Well, it was a pretty hot topic of conversation? A Oh, of course, yes. [ 13 ] The extent to which this common memory seeped into the evidence of the Crown witnesses is best described by my ruling on Day 6 at page 87, lines 33 to page 89, lines 11 to 18 as follows: THE COURT: All right.

I’m being asked to make a ruling as to whether or not the Crown can embark upon introducing a witness’ statement, previously given to the police in the early morning hours after the events that are currently the subject matter of this trial. The statement is given to a constable of the RCM Police here in Fort St. John on July 29th, 2010 at 1612 hours. The witness at that time was being asked to recollect events that took place back on the 25th of July in the early morning hours.

It is very plain from her evidence today she has repeated to me over and over again, “I was drunk, I was intoxicated, it was dark,” and it’s obvious that she was under the influence of alcohol. A couple of days later she’s asked to recollect and to give, amongst other things, a description of a person that she said had a bulletproof vest. As well, the Crown wants to put in other parts, and I’m referring to the statement, and we’ll mark this as an exhibit as well, Mr.

Temple, so that we reviewing then you will have it, she has given the description which I’ll come back to in a minute, and at line 75 Constable Gray says: Can you describe, does he have any weapons or anything?

And at [line] 76, [Ms. B.]: I know he hit Josh with a baseball like... Seventy-seven: Constable Gray: Did you see him? Seventy-eight: [Ms. B.]: I didn’t see it. The thing that has occurred over and over again so far in this trial is witnesses have been told things by other people, and it hasslipped into their consciousness to such an extent where they, themselves, the witnesses cannot discern what they saw, what they heardand what they were told. At point here is the description of the vest. The constable at 71 says: Yeah, hm, okay, describe the guy in the vest for me as best you can.

Ms. [B.] says at 72: I can’t really -- all I know is he was wearing like the vest, and I’m pretty sure it was just jeans and a long-sleeved shirt, and he had darkhair. He looked like -- everyone says he was Asian, but he looked like either native or Asian, I don’t know. That is another instance of where she has been told other things, and it strongly reinforced in my mind when she says: I know he hit Josh with a baseball bat, but I didn’t see it. She was told that, obviously, and this is the sort of thing where it has slipped into a statement.

A court has a discretion to review-- to refuse to allow cross-examination or even the presentation of it in a situation where the accuracy of the prior statement is at issue. And this is a prime case where the accuracy of this statement, even if the officer was to come and say “yes, those are thewords she told me,” I don’t think in the context of this that it’s appropriate, and I’m not going to allow you to do it.

End of ruling. [14] In addition to noting that the evidence of many witnesses was suspect due to this taint, almost all of the witnesses for theCrown who were actually at the party on the Beatton River beach were heavily under the influence of alcohol to the extent that theirability to accurately observe events, record them in memory, and recall and describe them in court is highly suspect.

Further, many ofthese witnesses, even those not under the influence of alcohol, changed their evidence when confronted in cross-examination. [15] The law on credibility of witnesses is set out in two decisions of my fellow judges of the Provincial Court. Her Honour, JudgeRounthwaite, in the case of Franklin William Gladue, 2005 BCPC 365 , 2005 BCPC 0365, out of the Vancouver Registry, atparagraph 3, says as follows: [3] When assessing the witnesses’ credibility and reliability I will consider their testimony from three perspectives:

1. their truthfulness - whether they are trying to tell the truth or intentionally lying when testifying; 2. their objectivity – whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and 3. the accuracy of their observations – the witnesses’ abilities to observe, remember and communicate accurately. [4] Factors relevant to truthfulness include previous inconsistent statements or occasions on which the witness has been untruthful;inconsistencies in testimony during direct and cross examination; reliable evidence that conflicts with the witness’s testimony; and theattitude and demeanour of the witness.

When considering demeanour I try to consider all possible explanations for the witness’ attitude,and to be sensitive to individual and cultural factors which may affect demeanour. [5] I will bear in mind that the witness’ objectivity may be influenced by his expectations, assumption of unproven facts, orsubsequent events. Attentiveness and the duration and circumstances of the witness’ observations may affect his accuracy. The witness’reasons for recalling an event and the length of time between the event and testimony may affect his reliability.

Some witnesses mayhave difficulty communicating their evidence clearly, because of nervousness, for example. [16] As well, my brother Judge Jardine, in the case of R. v. Daud, 2007 BCPC 68, out of the Surrey Registry, reviewed the law oncredibility of witnesses as follows: [19] [T]he law as it relates to credibility is that it is a question of fact. It cannot be determined by following a set of rules. A judge,when faced by differing testimony, must consider not only the witness' desire to be truthful but also opportunities of knowledge, powersof observation, aspects of context relating to motive and emotion.

Therefore, in accord with White v. The King [citation given] I chargemyself that the witness' capacity to remember, the accuracy of their statement, the witness' care in answering, the witness' sincerity andmanner, frankness and attitude and evidence of motive, bias or evasive responses, are all to be taken into account by me in consideringthe testimony of each witness. ... [24] I am also mindful of the fact that there is a difference between veracity and accuracy. That all evidence, until shaken, is entitledto weight. That all witnesses are credible until found not to be credible.

I am also mindful of the fact that sweeping assertions, notbacked by particulars, deserve little weight. In fact, in looking at the credibility of witnesses, there are a number of factors that I findhelpful in a general sense; these include, not in any particular order: 1. The witness' ability to observe the events, record them in memory, recall and describe them accurately. 2. The external consistency of the evidence: is the testimony consistent with other independent evidence which is accepted? 3. Internal consistency: does the witness' evidence change during the testimony?

Does the witness change between direct and cross-examination? Does the witness give different versions during the course of the witness' testimony in a trial? [25] I look to the existence of prior inconsistent statements or previous occasions in which a witness has been untruthful . . . [26] I look to the sense of the evidence. When weighed with the common interaction in life, commonly referred to as commonsense,does it seem impossible or likely? Is it unlikely or does it make sense? [27] I look to motives to lie or mislead the Court, including aspects of bias, prejudice or advantage . . . [28] . . .

I look to the attitude and demeanour of the witness. It is not a question of who is the best actor in the witness box but was thewitness evasive or forthcoming? Was the witness belligerent, co-operative, defensive or neutral? What factor is it in the demeanour thatI am looking to? ... [30] I [also charge myself on the principles of] Rex v. Pressley (1948), (BC CA), 94 C.C.C., 29, a decision of theBritish Columbia Court of Appeal which really asks the Court to consider each witness' testimony in light of the whole of the evidence indetermining whether to accept or reject all, part or none of a witness' testimony.

I will keep those factors in mind as I turn to theevidence in the case. And as Judge Jardine did, I will do the same.

[ 17 ] The theory of the Crown was set out by Mr. Temple on behalf of the Crown on Day 4, and that is at page 70, lines 47 to page 74, line 8. Mr. Temple said as follows: MR. TEMPLE: Your Honour, the Crown's theory of the relevance of this evidence is that if this woman was assaulted as part of this general enterprise, then regardless of whether these four were the persons doing the kicking and beating they are part -- they are liable for this assault because other members of their group perpetrated this assault in the course of their joint enterprise. THE COURT: You're trying to tell me that this group conspired, each and every one of them, to go there and take

part in this melee? MR. TEMPLE: Well, in my submission, Your Honour, that's the Crown's theory, that this group was assembled by the accused, that they came as a group for the purposes of assaulting the people who were at that party. THE COURT: Then why didn't you charge the women? MR. TEMPLE: An assault was -- we don't know who they are. That's why they're not charged. We've charged everyone we can identify, but it's our position that this was a much larger group than just the four that -- or the five accused that's here. They happen to be the only five we can identify.

But it's our position that this was a joint enterprise and that the assaults that were perpetrated that night are assaults perpetrated in the course of carrying out that enterprise and that these accused are as culpable for this assault on that woman as they are on the people that they've been identified as having assaulted. ... THE COURT: Well, have you got any direct evidence that Mr. Gunning, Mr. Jondreau, Mr. Ramos, Mr. Reno or Mr. Toth in any way applied force to [Charmaine Hunter]? MR. TEMPLE: Personally? No. A little bit further on, Mr. Temple concludes: MR.

TEMPLE: Well, Your Honour, it depends what the court contemplates as a direct connection. As I said, I expect the evidence will show -- I expect the evidence has already shown to some degree that a group of people, number eight to 15, arrived at this scene together carrying weapons, shouting, "Who ganged my friend?" and other things of that sort. The accused have been identified as being members of that group. That group launched a simultaneous assault on a number of people at that event.

I expect that this witness's evidence as to the timing of her departure from the scene will show that the assault that was perpetrated upon her occurred at the same time as many other people were being assaulted by the group of eight to 15 people who had arrived at that scene. That is already -- there's already evidence before the court that among that group of people there were at least two females. This witness described being accosted by two females, one of whom beat her up.

In my submission, it is not an unreasonable inference that the assault on this woman was part of a joint enterprise being carried out by the eight to 15 people among whom the five accused were active participants, and I expect that evidence yet to be called will show that at least some among the five accused were giving directions to other persons engaged in the active assaults.

So in my submission, there is evidence from which this court can infer that the assault on this woman was part and parcel of a joint enterprise in which the accused are all implicated. [ 18 ] In response to the Crown theory, as I have just set it out, the defence attacks the Crown theory as an example of gross overcharging with witnesses' evidence which was not filtered between what the witnesses claim to have seen and what they were told by others.

The Defence also points to the fact that this case was never fully investigated as evidenced by the cross-examination of Constable G. on Day 2, page 6, lines 44 to 47, through to page 8, line 16: Q Are you aware of any bats being seized that have any relevance to this proceeding? A No, Your Honour. Q Are you aware of any brass knuckles being seized that have any forensic or evidentiary value to these proceedings? A No, Your Honour. Q Are you aware of any firearms being seized that have evidentiary value to these proceedings? A No, Your Honour.

Q Are you aware of any two-by-four or other dimension lumber being seized that has any evidentiary value to these proceedings? A No, Your Honour. Q Are you aware of any batons being seized that have any evidentiary value to these proceedings? A No, Your Honour. Q Are you aware of any bottles being recovered or seized that have any evidentiary value to these proceedings?

A No, Your Honour, I'm not aware of any bottles. There was some items seized from the Beatton River, but I don't think there was any bottles. Q Are you aware of any machetes being seized that have any evidentiary value to these proceedings? A No, Your Honour. Q Are you aware of any metal pipes being seized that have any evidentiary value to these proceedings? A No, Your Honour. Q A knife was recovered at the Beatton, correct? A I believe that's correct, Your Honour. Q In the vicinity of a particular vehicle? A Your Honour, I'm not sure where the knife was recovered from.

Q Was that knife tested with Hemastix or anything else for presumptive evidence of blood? A Your Honour, I can't recall if that was completed or not. Q Was that knife shipped to the RCM Police lab in Vancouver so that the biology

section could test it for DNA? A No, Your Honour, I don't believe it was. Q Were attempts made to obtain fingerprints from that knife? A I don't recall if attempts were made for that, Your Honour. Q Were any other weapons found or recovered at the Beatton? A I don't believe so, Your Honour. Q What items were taken into police possession at the Beatton River campground? A I believe there was a lot of blood samples -- samples from blood taken from the Beatton River campground. The knife was obtained. Other than that, I can't recall without looking at the report what else was seized from the Beatton River.

Q Are you aware of any article, whether it's a two-by-four, a pipe, a bottle shard, anything recovered at the Beatton River campground that provides any evidence that Joshua Toth was there? A No, Your Honour. Q There were a number of cellphones found or recovered at the Beatton, yes? A Yes, Your Honour. Q None of those afford any evidence that Joshua Toth was there? A No, Your Honour. [ 19 ] I pause there to note that I find it very unlikely that in this day and age with young people with cell phones that somebody somewhere did not take a photograph of what was going on.

It seems the police did not encounter that or come across that. [ 20 ] I find that what happened in this case is that when the Crown and police could not identify all of the individual participants with discrete criminal acts, they elected to charge the five co-accused they believe they knew about with every pugilistic endeavour that occurred on July 25, 2010, at the Beatton River party regardless if the Crown and police had any evidence at all linking the five co- accused to any specific delict. [ 21 ] A specific example is this Count 19, charging all five accused with assault causing bodily on C.

H., but when C. H. testified, she described an assault by two girls and gave no evidence of the five co-accused doing anything to her on the day in question. When asked by the Court if the Crown had any direct evidence of the accused applying force to her, the reply was no. (see Day 4, page 71, lines 36 to 40.) [ 22 ] In addition to this Count 19, the irrelevant evidence, the Crown also put forward incredible evidence, such as the witness A.C. telling the police she had been shot when she had no gunshot wounds.

Further, some of the Crown evidence was absurd, such as the witness R.A. who told the police, "I was so liquored. Probably enough to kill a thousand midgets". (see Day 7, page 94, lines 5 and 6.) This same witness, R.A., went on to embellish his evidence into the realm of the fantastic by claiming that he saw a six-foot guy with a Glock handgun and a banana clip by the fire at the Beatton Park that night. (see Day 7, page 113, lines 2 to 47.). When cross-examined on this point, the witness R.A. referred to his witness statement, saying "That's what it says in there though.

I don't know what a banana clip looks like, sir". (see Day 7, page 114, lines 1 and 2.) [ 23 ] In addition to being irrelevant, incredible, absurd, and fantastic, some of the Crown evidence openly contradicts their

professed theory of joint and common intention and enterprise. Specifically, the witness S.K. describes leaving the beach area after the violence had broken out. He testified about flagging down a passing van that was travelling towards the beach area from Fort St. John. S.K. then describes being assaulted with fists and a bat by the First Nations occupants of this van.

The Crown was unable to reconcile this evidence which they presented with the theory of the Crown as to how these events and offences allegedly unfolded. [ 24 ] I pause here to note that the onus is upon the Crown to prove their case beyond a reasonable doubt. If there is any ambiguity or doubt as to the accuracy or truthfulness of the evidence of the Crown, then that ambiguity or doubt must be resolved in favour of the accused. The accused are not required to prove or establish anything.

They are presumed to be innocent throughout, and until or unless the Crown establishes their case beyond a reasonable doubt, that presumption of innocence maintains. [ 25 ] As stated earlier, almost all of the Crown witnesses who were actually at the party at the Beatton River were heavily intoxicated. I find that I cannot rely on their evidence beyond a reasonable doubt.

What parts of their recollections of that night they can recall are so unreliable as to be unworthy of establishing any specific event beyond a reasonable doubt. [ 26 ] Accordingly, I must examine the only Crown witnesses who claim to be sober on the night in question to see if their evidence can assist the Crown's case beyond a reasonable doubt. [ 27 ] Only two witnesses professed to not being under the influence of alcohol that night: T.A. and M.L. A third witness, J.H., was never asked about his alcohol consumption or sobriety, so I will deal with that witness later.

THE WITNESS: T.A. [ 28 ] T.A. went out to the Beatton River to give his two cousins a ride. T.A. sat and waited for a while, then left and returned at 2:30 a.m. He got bored, he told me, and left again, until he was called by the cousins to come and get them. (I pause to note, odd their cell phone seems to have been working.) [ 29 ] He arrived back at the Beatton River area approximately 4 a.m. At no time during these events did T.A. consume any alcohol or drugs, in keeping with the fact he was driving with a learner's permit.

During his direct testimony, he answered the questions of the Crown counsel directly, identified Jordan Reno, Jordan Ramos, and Jeremy Jondreau as the people he knew from school or sports. He recounted specific events, such as the witness S.F. in Count 31 being struck by Jeremy Jondreau. He testified he saw a big brawl during which Jordan Ramos had a bat, Jondreau had a two-by-four, and Reno had a handgun. [ 30 ] Also in his evidence, he was sure that he was assaulted by Josh Toth's fists. He also related that he saw the witness T. A. being assaulted.

His direct testimony also included details about Jondreau and Ramos damaging vehicles with rocks and bats. As to the accused Gunning, T.A. told me, "Gunning was just standing there watching it happen." [ 31 ] At no time during his direct evidence while answering questions of the Crown counsel did T.A. mention that his evidence was other than his own personal observations. However, during cross-examination, it quickly became obvious that this witness did not personally see many of the events he related in his testimony. Rather, he was relying upon what others had told him.

For example, in the transcript of Day 3, page 3, line 12, he says, "Some of it [my evidence] was based on what I heard." [ 32 ] When asked to explain why he told police different things in his July 2010 statement than in his September 2010 statement, he gave no complete answer.

When asked to explain a different story in his September statement, his reply was (Day 3, page 7, line 5), "Again this is a lot of what I heard." Therein, he was referring to his statement. [ 33 ] At other points in cross-examination when confronted with the differences between what he told the Court in direct evidence versus what he told the police, he replied (Day 3, page 7, line 42), "It must've slipped my mind [when I told the police]." [ 34 ] When asked by Defence counsel about the discussions between the witnesses about the events at the party, T.A. agreed that this was a big story and he was hearing lots of things from other people. (see Day 3, page 17, lines 35 to 45.) [ 35 ] At another point in cross-examination, he agreed with Defence counsel that what he told the police was not true.

When asked to explain why he was telling the police an untruth, he replied: A I don't know why I said that. Q You don't know why you said that? A No. (See Day 3, page 23, lines 23 to 25. ) [ 36 ] When confronted with his evidence that he saw Jordan Ramos smashing vehicles, he changed his direct evidence to admit he really thought that it was Jordan Ramos; that he, T.A., had his head down and did not actually see this. (see Day 3, page 25, lines 36 to 37.) [ 37 ] Again, T.A. admitted that when he told the police that he saw the witness Ms. A.C.B. get tackled, it was not true. He did not see that.

He just heard about it. (see Day 3, page 29, lines 17 to 23.) [ 38 ] On his identification of Josh Toth as someone who assaulted him with his fists, T.A. completely changed his testimony in cross-examination, conceding that the witness T. A. and the witness M.R. had told him that the man who hit him was Josh Toth, that he had no personal knowledge of the identity of this person. Time and time again, when confronted with his previous statements and his evidence in direct, T.A. readily admitted that his answers to the police were "not the truth" or "most of it was the truth". (see Day 2, page 103, lines 28 to 30.)

[ 39 ] In the same vein, when confronted on what he told the police about people having weapons, he replied: A I went by more of what I heard on this question than what I actually seen, but I did see some of them have weapons. (See day 2, page 106, lines 4 to 43.) [ 40 ] These are but a few examples of the inability of this witness to reliably recount what he observed. T.A. was totally incapable of separating what he heard from others from his own personal knowledge. I find him to be totally unreliable, and I put no weight whatsoever on his evidence. THE WITNESS: M.L. [ 41 ] Ms.

M.L. told me that she was sober that night, choosing not to drink, even though it was her birthday as well as Ms. K.A. This witness, however, was sitting in a truck, drifting in and out of sleep, when she awoke to see people fighting. She told me about a person in a white shirt and a bullet-proof vest who took the truck keys and told her and the other occupants of the truck, "You're not going anywhere." [ 42 ] In direct examination, Ms. M.L. identified the accused Ramos as the person with the white shirt and bullet-proof vest who took the keys. In Court, Ms. M.L. made no identification of Mr. Reno or Mr.

Toth and said she only saw the accused Gunning standing there. As to Jondreau, she testified in direct she saw Jondreau swinging a two-by-four and hitting the witness D.G. [ 43 ] In cross-examination by counsel for Jondreau, Ms.

M.L. admitted that she told police in July of 2010 shortly after these events that she could not identify anybody who was attacking D.G. (see Day 5, page 14, lines 11 to 16.) As well, when directly confronted as to the identification of Jondreau in Court, she agreed that all she knew at the time of the party was that it was "a white male, that's all I knew at the time". (see Day 5, page 17, lines 2 to 3.) [ 44 ] As to her in-court identification of Mr. Ramos, Ms.

M.L. agreed that she told the police right afterwards that the person who took the keys may have been Asian, but she was not certain (see Day 5, page 18, lines 31 to 37), that she could not see his face. As well, she agreed with Defence counsel that "I heard his name, his nickname, but I couldn't put a face to that name". (see Day 5, page 19, lines 1 to 7.) [ 45 ] Finally, Ms. M.L. agreed that in regards to the person in Court she had identified: Q But you can’t say that that is the same person that took the keys, can you? A No, I can’t.

See Day 5, page 19, lines 29 to 31. [ 46 ] Once again, here is a Crown witness that when confronted on cross-examination changes her evidence and agrees she is uncertain about her in-court identification as well as her other direct evidence identifying any of the other accused. Such uncertain and unreliable testimony can never equal proof beyond a reasonable doubt, and I reject the evidence of Ms. M.L. as being capable of proving the Crown's case beyond a reasonable doubt.

THE WITNESS: J.H. [ 47 ] J.H. was never asked about his alcohol consumption or state of sobriety during the party so I simply have no evidence on this point. He saw Ms. D.G. beat up Calvin Gunning who J.H. then said left the party. (see Day 4, page 26, lines 35 to 38) However, later in his testimony, J.H. identifies Gunning as the same person who threatened him with a bat. (see Day 4, page 32, lines 31 to 47.) This witness identified no other accused, and I simply do not believe what he says about the accused Gunning and a bat, as no other sober witness saw this.

I do not find the witness J.H. believable, and his evidence is not capable of supporting the Crown's burden of proof beyond a reasonable doubt. [ 48 ] As the trier of fact and law in this case, I must be satisfied beyond a reasonable doubt that these co-accused committed these offences as charged. Once again, I repeat, the test here is that the Crown must establish this case beyond a reasonable doubt. The accused have no need to establish anything.

They are presumed innocent right through to the end until the Crown satisfies me beyond a reasonable doubt. [ 49 ] For the reasons just given, I am not satisfied beyond a reasonable doubt on the evidence I believe that the Crown has proven the guilt of any of these remaining four accused. I find them not guilty on all counts. (REASONS CONCLUDED)