R. v. Jones, 2018 BCPC 167

Citation: R. v. Jones 2018 BCPC 167 Date: 20180614 File No: 38777-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDWIN DOUGLAS JONES ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: P. Cheeseman and J. Patsch Counsel for the Accused: C.M. Hunt Place of Hearing: Duncan , B.C. Dates of Hearing: October 26, 27, December 14, 2017, April 19, 25, 2018 Date of Judgment: June 14, 2018

Introduction [1] THE COURT: Edwin Douglas Jones has been charged by way of an amended indictment on Information 38777-1. [2] On Count 1, there is an allegation that Edwin Douglas Jones (the "Accused") on or about March 20th, 2016, did break andenter a dwelling house situate at 3170 Gibbins Road and commit an indictable offence therein, being an assault upon Samuel Williams(the "Complainant"), contrary to s. 348(1)(

b) of the Criminal Code. [3] On Count 2, the allegation is that Mr. Jones, on or about the same date, in committing the assault of Samuel Williams, did usea weapon, being contrary to s. 267(

a) of the Criminal Code. [4] The matter came on before the court for trial on October 26 and on October 27, 2017. The Crown closed its case on October27, 2017. In the course of Crown's case, a statement made by the Accused, Mr. Jones, was entered as an exhibit. [5] An issue was raised by defence as to whether or not that statement made to the police should be admitted for the truth of itscontents or merely, for the limited purposes of cross-examination of the Accused.

Defence sought to have it admitted for the truth of itscontents. [6] A decision on that particular issue was rendered on December 14, 2017 [see R. v. Jones, [2017] B.C.J. No. 2853; 2017 BCPC442 ], in which it was held that the statement was before the court for the limited purposes of cross-examination of the Accusedand not before the court as being admitted for the truth of its contents. [7] The trial continued on April 19 and 25, 2018. The defence called evidence including the Accused who testified on his ownbehalf and presented an alibi.

Two other witnesses were called by defence with respect to the alibi. [8] The task of this court is to determine whether the Crown has discharged its burden of proving each of the offences beyond areasonable doubt. In that regard, the court must consider and decide upon two important matters relating to the issues of: 1.

The strength and reliability of the Complainant's eyewitness identification or his recognition of the Accused as the person whoentered his residence and struck him with a weapon and whether, based on that evidence, the Crown has proven beyond a reasonabledoubt that the Accused was the perpetrator of the attack upon the Complainant; 2. The Accused having presented evidence of an alibi being raised, whether Crown has disproven that alibi beyond a reasonabledoubt. Presumption of Innocence [9] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt.

If that occurs, then andonly then can the court convict the accused person. Where reasonable doubt exists on any elements of the offence charged, the accusedperson must be acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [10] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt.

However, reasonable doubt does not involve a proof to an absolute certainty since that would be animpossibly high standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities. In short, if, based upon the evidence before the court, the finder of fact is sure the accused person committed the offence,then the finder of fact should convict since this demonstrates that the finder of fact is satisfied of the accused's guilt beyond a reasonabledoubt. (See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, and see R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R.144).

The W.(D.) Formulation [11] I must instruct myself that in the trial of criminal matters it is not a question of which witness' evidence or version of the eventsI believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [12] Where there is evidence of an accused that raises a defence, as is the case in this matter, then I must further instruct myself andI must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742,found at paragraph 28: First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I am] left in reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [13] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H., 2012 PECA 6, [2012]P.E.I.J. No. 10, at paragraphs 30 to 31, reading in: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence taken

as a whole raises a reasonable doubt (R. v. Ellis, 2006 PESCAD 25, at para. 18). Proper application of the third step involves moving thefocus from the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all the evidence) on thecriteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringingevidence that can prove guilt beyond a reasonable doubt (R. v. S.F., 2007 PESCAD 17, at paras. 28-31). The Supreme Court of Canadarecently stated in R. v.

J.H.S., 2008 SCC 30 , at para. 8, that a series of decisions has affirmed and reaffirmed that wherecredibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown'sultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2, at para. 7). [14] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., (BC CA),[1991] B.C.J. No. 2753, adds a fourth step to the W.(D.) analysis; namely, if, after consideration of all the evidence, the court is unable todecide whom to believe with respect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood J.A. (as hethen was) suggests that logically this ought to be second in order in the W.(D.) analysis. [15] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. A lack of credibility on the part of the accused persondoes not equate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152.) Assessing Credibility and Reliability of Witnesses [16] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility and thereliability of the witnesses who provided this conflicting evidence. In doing so, I must weigh all the evidence.

In so weighing theevidence, I may reject or accept some or all of the witness' testimony after having taken into account a multitude of factors whichinclude, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, andinternal or external consistency. [17] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [18] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another (seeR. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094). Assessment of a Witness' Evidence [19] As noted above, I must have regard to the credibility and to the reliability of each witness' evidence. In R. v. C.(H.), 2009ONCA 56 , Watt J.A. explained the difference between credibility and reliability, at paragraph 41, reading in: Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995) ((ON CA), 22 O.R. (3d) 514, at 526 (C.A.)). [20] There are many factors to take into account when assessing a witness' evidence, some of which are: 1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2. Did the witness have an interest in the outcome of the case? 3. Did the witness have a good memory about the event?

Did any inability to remember seem genuine or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw, or are they adding in details based on othersources? 5. Was the testimony of the witness reasonable and consistent? Was the witness' evidence consistent with the other evidence inthe case? 6. Do any of the inconsistencies in the witness' evidence make their testimony more or less believable and reliable? Is theinconsistency about something important or a minor detail? 7. Was the witness's evidence plausible?

(See R. v. Shields, 2017 BCPC 395 , [2017] B.C.J. No. 2608; 2017 BCPC 395 at paragraph 60.) [21] In assessing the credibility and reliability of those witnesses who have provided the conflicting evidence about the allegedoffences, the testimony of each of the witnesses can be considered from three perspectives: (

a) their truthfulness; whether they are trying to tell the truth or intentionally lying when testifying; (

b) their objectivity; whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and (

c) the accuracy of their observations; their abilities to observe, remember, and communicate accurately. [22] In the decision of R. v. Cuhna, 2015 BCPC 60, at paragraphs 5 and 6, the Honourable Judge Merrick provides a useful reviewof the factors to be considered when assessing the testimony of a witness from these three perspectives.

Truthfulness [23] Relevant factors for truthfulness include previous inconsistent statements or occasions on which the witness has been untruthful;inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with the testimony of thewitness and the attitude and the demeanour of the witness. However, when considering demeanour, it is important to consider allpossible explanations for the witness' attitude and to be sensitive to individual and cultural factors that may affect demeanour.

Objectivity [24] When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'expectations, the assumptions of unproven facts, or by subsequent events. Accuracy [25] Factors that may affect the accuracy of a witness' testimony include the attentiveness of a witness during the period ofobservation and the circumstances of the witness's observations. The reasons for recalling an event and the length of time betweenwitnessing an event and providing testimony about it may affect the accuracy of the witness' testimony and hence its reliability.

Somewitnesses may have difficulty communicating their evidence clearly due to factors such as nervousness. Identification [26] It is a basic tenet of criminal law that Crown must prove beyond a reasonable doubt the identity of the accused person as theperson committing the crime. That may be proved by primary (that is direct evidence) or by secondary evidence. [27] Primary evidence involves a witness testifying in court that he or she is of the opinion that the accused person before the courtis the person that he or she saw committing the crime (see E.G.

Ewaschuk: Criminal Pleadings and Practice in Canada (2nd ed.)(Canada Law Book: Toronto, Ontario) ("Ewaschuk') paragraphs 16:7010 and 16:7020). [28] The testimonial factors by which the evidence of the witness testifying about identity is assessed are as follows: (

a) opportunity to observe, powers of observation; (

b) actual observations; (

c) actual recollection; (

d) ability to relate recollection. [29] These factors are particularly at issue where the witness testifies that in his opinion the accused person is a person whom heobserved committing the crime charged. These testimonial factors are relevant to the ultimate issue of whether the witness' evidence isreliable and therefore truthful as to the accused's identity that is in the sense of accurately reflecting reality and not merely whether thewitness is sincerely and honestly attempting to tell the truth (see Ewaschuk, paragraph 16:7050). [30] As the finder of fact, based upon the case authorities, I must instruct myself about: (

a) the inherent frailties of identification evidence, especially where there is only a single witness who identifies the accused as theperson committing the crime; this is especially important where the defence is alibi; (

b) the fact that witnesses may be "honestly mistaken" even though the witnesses are sincere in their testimony because of theinherent unreliability of identification evidence giving rise to the present "risk of mistaken identification"; (

c) the importance of a witness to be able to describe physical traits or characteristics of the person he observed committing thecrime in order to establish an adequate basis for the opinion with respect to identity. [31] I must also instruct myself about the necessary guidelines relating to visual identification as identified in R. v. Turnbull (1976),63 C.R. App. R. 132, at pages 137-8, which have been adopted by Canadian courts (see, for example, R. v. Duhamel (1980) 1980 ABCA247 , 56 C.C.C. (2d) 46 (A.B.C.A.), and R. v.

Sophonow (No. 2) (1986), (MB CA), 25 C.C.C. (3d) 415(Man.C.A.) at pages 438-40, leave to the Supreme Court of Canada refused). [32] These have become known as the ADVOKATE factors:

A: being the amount of time for the witness' observation of the suspect; D: being the distance between the witness and the suspect; V: being the visibility at the time; O: being the obstructions between the witness and the suspect; K: being the knowledge by the witness of the suspect; A: being any particular reason for remembering the suspect; T: being the time lapse between observation and identification; E: being the errors or material discrepancy between the witness' description and the suspect. [33] I am further mindful that some of these factors must be considered by the finder of fact having specific regard to the contextwhen a witness is testifying that they recognized the suspect from past experiences. [34] In the British Columbia Court of Appeal decision in R. v.

Smith (2011), 276 (3d) 502, the court stated that "recognitionevidence" is not a distinct category of evidence. Instead, the concept of recognition in the context of eyewitness identification is but "onefactor" to be considered in weighing the reliability of the witness' evidence. The Defence of Alibi [35] The classic understanding of an "alibi," being the Latin for "elsewhere," is that the accused person was elsewhere than wherethe crime with which he is charged was committed (see Ewaschuk, paragraph 16:8010, and see also R. v.

Allen, 2017 MBCA 88). [36] Ewaschuk states further at para 16:8010 that in Canada the evidence of alibi must be determinative of the final issue of guilt orinnocence of the accused person. Evidence of alibi contemplates it was impossible for the Accused to have committed the crimebecause, at the time of its commission, he was elsewhere [citing R. v. R.(M.) (2005), (ON CA), 195 C.C.C. (3d) 26(O.N.C.A.) at para 31]. Furthermore, an alibi is not complete unless it is determined of the guilt or innocence of the Accused byexcluding any "windows of opportunity" of having committed the offence (citing R. v.

C.(T.W.) (2006), (ON CA),209 O.A.C. 119, 69 W.C.B. (2d) 634 (C.A.)). [37] Thus, the defence of alibi has been characterized by the courts as a plea of not guilty because the accused person was not in theplace where the offence was committed on the indicated occasion so that the proof that the Accused was absent from the place of thecrime is essentially inconsistent with the proof that he committed the crime (see R. v.

Letourneau (1994), (BC CA), 87C.C.C. (3d) 481 (B.C.C.A.)). [38] Disclosure of an alibi must be both timely and adequate in terms of information so as to permit the police to conduct ameaningful investigation of the validity of the alibi before trial. Failure to meet either of these requirements can result in the trier of factdrawing an adverse inference when weighing the evidence heard at trial, but improper disclosure of an alibi can only weaken the alibievidence, it cannot exclude the alibi (see R. v. Cleghorn, (SCC), [1995] 3 S.C.R. 175, and R. v.

Noble, (SCC), [1997] 1 S.C.R. 874). [39] Whereas the Crown must prove that the accused person committed the crime charged beyond a reasonable doubt, evidence ofan alibi need only raise a reasonable doubt that the accused person committed the crime and the evidence of the accused person alone issufficient to raise the defence of alibi (see R. v.

Lizotte, (SCC), [1951] S.C.R. 115, at pages 130-31, and R. v.Letourneau, supra). [40] Thus, the Accused bears the "evidential burden" of adducing sufficient evidence to raise the defence of alibi, either throughevidence adduced by the Crown or by the accused person themselves. However, once the defence of alibi is evidentially raised, theCrown bears the "legal or persuasive burden" of disproving the defence beyond a reasonable doubt or the accused person is entitled to beacquitted (see Ewaschuk at para 16:8030 citing R. v. A.(S.) (1998), 129 C.C.C. (3d) 584 (Que.C.A.), and also see R. v.

Lizotte, supra). [41] A trier of fact is entitled to reject an alibi if the alibi witness is unable to objectively confirm that the accused person waspresent with them during the time that the offence occurred (see R. v. Berman, 2015 BCCA 519, affirming 2013 BCSC 2395). [42] An alibi that is disbelieved by the trier of fact has no evidentiary value. It cannot be used to determine whether or not theCrown has proven its case beyond a reasonable doubt. If an alibi is found to have been fabricated by the accused person, the trier of factmay, but must not draw, an inference of consciousness of guilt (see R. v.

Hibbert, 2002 SCC 39, at paragraph 63 and 67). [43] Based on the foregoing, as the trier of and finder of fact, I must direct myself that: 1. If I believe the alibi evidence, I must acquit the accused person; 2. If I do not believe the alibi evidence, but I am left in a state of reasonable doubt about it, then I must acquit the accused person; 3. Even if the alibi evidence is affirmatively rejected by me and it does not in itself raise a reasonable doubt, I must still determineon the basis of all the other evidence whether the Crown has proven the accused person's guilt beyond a reasonable doubt; 4.

If I find as a fact that the alibi has been proven to have been fabricated, I may consider that evidence together with all the otherevidence in determining whether the Crown has proved the accused person's guilt beyond a reasonable doubt. The alibi must be provento be fabricated in the sense that the evidence establishes that the source of the alibi was not "merely mistaken," but "deliberately lying"

as to the false alibi and that the accused person "participated in or approved" the concocted or fabricated alibi. (see Ewaschuk: para 16:8035) The Evidence [44] For the purposes of these reasons, I have broken the evidence into three main categories. First is the non-controversialbackground facts that surround the case.

Second is the evidence adduced by the Crown in support of the Crown's theory of the case forthe most part provided by the Complainant, Samuel Williams, Constable Ryan Stevenson who is the police officer who investigated thematter and who took a warned statement from the Accused; Darrell Byron, a guard at the North Cowichan-Duncan detachment of theRCMP; Lawrence White, a neighbour of the Complainant; and Constable Jillian Woodley who conducted a photo lineup for theComplainant.

Last is the evidence adduced by the defence in support of their theory of the case which has been in this case provided bythe Accused; his cousin, Fabian Jones; and by Salem Barjarsh, a representative of a Victoria motel which was referred to in the alibievidence of the Accused and Fabian Jones. [45] It is important to understand the approach I have followed in summarizing the evidence in these reasons for judgment. It is thesame approach usefully and concisely set out by the Honourable Judge T.S. Woods in the recent decision of R. v.

Connell, 2017 BCPC123, at paragraphs 5 and 6. [46] In that decision, Judge Woods indicates that it is acceptable for a trial judge in reasons for judgment not to make reference to allof the testimony given by the witnesses who are called or to make reference to all the documentary evidence. It is permissible for a trialjudge in reasons to confine the

summary of evidence to factual findings and the legal conclusions that flow from them. It is alsopermissible not to make mention of what is considered to be irrelevant evidence or evidence that comes from other sources. [47] In paragraph 6 of his decision, Judge Woods says as follows: That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed and somewhatselective canvassing of the evidence heard at trial is well established on the authorities.

The law is clear that where there is substantialsupport in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error byfailing to refer to every item of evidence that was adduced: see, for example, R. v. Tse, 2013 BCCA 121 at para. 56; R. v.Blacklaws, 2012 BCCA 2017 at para. 50 (aff’d, 2013 SCC 8 ); and R. v. Dinardo, 2008 SCC 24 at para. 30.

Undisputed Facts [48] In the late evening of Sunday, March 20th, 2016, a group of individuals entered into the residence of the Complainant located ina multi-unit townhouse complex on Gibbins Road near Duncan, British Columbia.

The Complainant was prior to that intrusion alone athome seated in the living room watching TV. [49] The Complainant opened the door to his residence, the group entered and the Complainant was immediately severely assaultedby way of punches and kicks from one or more of the group, including being struck by one or more fish clubs, possibly in the form of ametal pipe, and by one or possibly more of this group. [50] These individuals left shortly after committing the assault upon the Complainant leaving the Complainant injured and coveredin his own blood. The Complainant called 911 to report the assault.

The police and an ambulance attended. [51] The Complainant was severely beaten and sustained a number of injuries to both his head, face, throughout his body includinghis arms, legs, stomach, and ribs. He was hospitalized as a result of the assault. His recovery took a significant period of time after abrief hospital stay. [52] The Complainant is 56 years of age. He is an aboriginal person. He has resided for a significant part of his life in theCowichan Valley in or around the community of Duncan, including attending public school in this community.

The Complainant has acriminal record. [53] The Accused is also an aboriginal person who grew up in the Cowichan Valley. He and the Complainant have some mutualacquaintances in the Cowichan Valley. [54] The Complainant provided a statement to police while in hospital shortly after the events giving rise to these charges (the“Events”). The Complainant also attended at the North Cowichan-Duncan RCMP detachment on April 21st, 2016, for the purposes ofparticipating in a videotaped photo identification procedure. The Complainant was shown a police photograph pack containing thephotographs of 10 adult aboriginal males.

From the photograph pack, he selected the Accused as being one of the persons who hadassaulted him at his residence on the evening of the Events. [55] The Accused and the Complainant both know an aboriginal woman who lives in the Cowichan Valley and who is the mother ofyoung children. I will identify her as S.M.

The Complainant babysat those children on some occasions for about a year preceding theEvents in March of 2016. [56] On the Friday before the Events, a child protection social worker arrived at S.M.'s residence where the Complainant wasbabysitting S.M.'s young children without the presence of any other adult. The child protection social worker apparently had childprotection concerns about the Complainant being alone with the children because of some historical concerns involving theComplainant. The resulting intervention by the child protection social worker resulted in some difficulties for S.M.

The evidencesuggests that on that Friday evening, S.M. was actually at the Complainant's residence with his permission where she was drinking. Hehad given her a key to his residence. [57] As I understand it, the police theorized that the attack on the Complainant arose out of that child protection intervention and the

attack upon the Complainant was in retribution for the child protection intervention. [ 58 ] The Accused works in the northern part of Vancouver Island at a fish farm, on a rotating

schedule and thus is out of town at times for multiple days. When he returns to Duncan, he usually resides with his mother.

The Accused attended at the North Cowichan- Duncan detachment of the RCMP and provided a voluntary recorded statement to Constable Stevenson on April 18, 2016. [ 59 ] In the course of that police interview, Constable Stevenson explained that the police were investigating the assault upon the Complainant and stated it had occurred on March 20, 2016, and further that his name, being the Accused, had come up as a suspect in that investigation. [ 60 ] The Accused immediately denied that he was involved in the assault of the Complainant or that he was at the Complainant's residence.

He made mention of a book which was at his mother's and which was a log of "where we go and what we do." He made mention of the fact that when in Duncan he was at his mother's helping her or he was looking for his missing brother, Everett Jones, both in and out of town. He also indicated that if he was in Duncan and was drinking alcohol he stayed at a friend's house.

He indicated that he could look up in the log and see where he was that date and if he "had to prove even more then [he] could track it down, exactly where [he] was." [ 61 ] Following the making of that portion of the recorded statement, Constable Stevenson drove the Accused to his mother's residence.

The discussions between them continued which defence admits were voluntary. [ 62 ] The Accused remained in the presence of Constable Stevenson when they arrived at the residence and the Accused provided the logbook to Constable Stevenson for his examination. [ 63 ] There was no apparent animus between the Accused and the Complainant predating the Events.

The Crown's Case The Evidence of the Complainant Samuel Williams [ 64 ] The Complainant testified that while he was sitting in his living room he heard his front door opening against the door chain after hearing a key being inserted into the front door. [ 65 ] Because the chain on the door was still on, he said that he could see through a four to six inch crack in the door.

He said he saw that it was the Accused right away and thought he had come to visit and, accordingly, he took the chain off. [ 66 ] At that point the door was flung open and the Accused was pushing the Complainant on his shoulders backwards until he reached his bedroom at the back of the residence, where the Complainant tripped over his bed and fell and landed on the floor curled in a fetal position. Nothing was said by the intruders. [ 67 ] Immediately he says he was struck multiple times with clubs and he was kicked and punched for a couple of minutes before the group departed.

He was unable to see how many people were in the bedroom noting that, "I only got flashes because I was trying to hide my face." There was also blood in his eyes and he had trouble focussing. [ 68 ] He did indicate that there was more than one person. He was unable to recognize any of the other individuals other than the Accused. There was a limited conversation and words being spoken by the group of intruders. Following the beating, they attempted to straighten him out of his fetal position and tie him up.

However, based upon some words exchanged by the intruders, the significant amount of the Complainant’s blood appeared to be the reason that they abandoned that attempt to tie him up. They then left his residence, stealing or smashing various phones. The Complainant said that he was just about at the black-out stage as he was attempting to find his phone to call 911. He admitted that he was "groggy from the blows." He did make the call to 911. [ 69 ] The Complainant said that he had known the Accused, that they had grown up together and also from school their years, likely up to grade seven, round 1975 or 1976.

He was uncertain which school it was and whether it was an elementary or a middle school. After that, their paths had crossed on and off, usually on the streets of Duncan. The Complainant said that he and the Accused had been at S.M.'s residence earlier in 2016 at which time they were together for a short period time "just visiting and drinking." [ 70 ] Since the Events the Complainant says that he has seen the Accused once or twice in passing on the streets of Duncan. [ 71 ] In cross-examination, the Complainant indicated as follows: he admitted that he had given a statement to the police.

He further admitted on October 24, 2017, that when he met with Crown counsel, he told them that the person he recognized from the incident was "Eddie Jones or Erwin Jones," being the brother of the Accused, and also indicated to Crown that he got the brothers mixed up all the time. He was uncertain about which brother he had gone to school with and then, on one occasion after the Events he had seen the Accused on the street and said hi to him before he realized it was Eddie Jones.

He disclosed that when he met at Crown counsel's office on October 24, 2017, he did not recall participating in a photo lineup at the RCMP detachment. [ 72 ] In re-direct, he stated that it had been many years since he had last seen Erwin Jones. [ 73 ] The Complainant was asked the following questions and provided the following answers recorded in the transcript of evidence of October 27, 2017, on page 49, commencing at lines 36 to 47: Q Across these times that you talk to these people in authority when you spoke to the police and when you spoke to the Crown counsel, you have continuously said Eddie Jones is big, he is very big?

A Bigger than me. Q He is six-foot-two, around 200 pounds, give or take 20, is that correct, these things?

A Yes. Q All of those things you said? And you said, "He has such big hands," right? A Mm-hmm. Continuing then on page 50, lines 1 to 20: Q "He is so big" and "He has big feet," you would say that you said all of that? A Yes. Q Now, I would put to you that Eddie Jones may weigh more than you, but he is five foot eight, would you agree with that? A I do not know. Q But he is not six foot two? A I guess not. Q How tall are you? A Five eleven. Q So you are actually taller than Edwin Jones.

When you are standing looking at this person, if they were taller than you, this person that comes into your house, if they are six foot two, you are going to be looking up at them, right? A Probably. Q But Eddie Jones if you were to stand next to him you would not be looking up?

A No. [ 74 ] In cross-examination, the Complainant further admitted that he told Crown counsel on October 24, 2017, that he knew the Accused was drunk because he could smell alcohol, although he told the police in a statement that the Accused did not look drunk. [ 75 ] Although he initially could not say how many intruders were in the group he said that there were four and that the two smaller individuals were kicking and clubbing him. [ 76 ] In re-direct, the Complainant stated that he did not recall giving his initial police statement on March 21st, 2016, at the Cowichan District Hospital.

Evidence of Lawrence White [ 77 ] Lawrence White testified that he was visiting his mother's residence which, as it turns out, is located in the same complex as the Complainant's residence. He and his children were sitting outside on March 20, 2016, late at night stargazing and looking for a meteor shower. [ 78 ] He observed a car pull up and park in a parking lot in front of his mother's residential unit. From an estimated distance of about 60 to 70 feet away, he observed a female jump out of the vehicle along with three males. They were all wearing hoodies.

They ran through the parking lot down the alleyway. [ 79 ] Mr. White testified that he thought he heard a door get kicked in. Everything went quiet and then he observed the same female and three males return, enter the same vehicle and leave. [ 80 ] He described one of the males as being really tall. He was unable to make out anything other than their gender because of the poor lighting. Evidence of Constable Ray Stevenson [ 81 ] Constable Stevenson testified that he responded to a dispatch around 10 p.m. to a residence that turned out to be the Complainant's.

There he found the Complainant severely beaten and covered with blood. He described the Complainant as being conscious, coherent, with no signs of intoxication. He stated that the Complainant was able to provide him with a verbal account of what had happened to him that night. [ 82 ] In the course of that account, he provided the police with the name of Eddie Jones as the person who had assaulted him.

He did not provide a physical description, but indicated to Constable Stevenson that he had known "Eddie" for most of his life, they had gone to school together, they were not close friends, and they have not travelled in the same circle of friends, but he had known him for quite some time. Constable Stevenson took a series of photographs of the Complainant in the emergency ward at the Cowichan District Hospital and also of the interior of the Complainant's residence. [ 83 ] The Complainant was able to provide a general description of where the Accused resided.

On April 18, 2016, after some delay in making successful contact with the Accused, Constable Stevenson met with the Accused and arrested him. Constable Stevenson directed RCMP Guard Darrell Byron to photograph the Accused and to thereafter create a photo pack which included the photograph of the Accused. He passed the photo pack to Constable Woodley, who knew nothing about the investigation, for the purposes of her

meeting with the Complainant in order to conduct a review of the photo pack. [ 84 ] Constable Stevenson testified about taking a statement from the Accused on April 18, 2016.

He confirmed that the Accused could not remember what he was doing on the dates "in question," but indicated that he maintained a log book of his actions because the Accused was in the process of looking for his missing brother, whom the constable described as a "high-profile local man" who had been missing for quite some time. [ 85 ] Constable Stevenson drove the Accused to his mother's residence after taking the statement at the detachment and releasing the Accused on an undertaking to appear. The Accused offered to show the log book that was kept in his mother's residence.

Constable Stevenson leafed through the pages for the week of March 18 to 20, 2016, and observed some notes written in for those dates. Constable Stevenson was with the Accused from the time that they arrived at the Accused's mother's residence until he produced the log book to Constable Stevenson. Constable Stevenson took a photograph of the log book.

Constable Stevenson did not compare the entries for the dates of March 18 to 20, 2016, with other entries in the log book. [ 86 ] Constable Stevenson provided evidence about the various entries that had been made in or around these dates including one that stated, "Ed to Vic," and then another that said, "Paul drove Ed home," and then in a different coloured ink, "From Vic." and the date of March 21 had been inserted in smaller writing. [ 87 ] Constable Stevenson indicated that the Accused stated that he remembered going to Victoria on those dates to hand out flyers for his missing brother, that he had been driven by his Uncle Paul on the 18th and stayed in a motel with two other family members, Fabian Jones and a Joe Charlie.

The Accused indicated that he stayed there for the weekend and then his Uncle Paul had driven him back, but the Accused could not recall which motel he stayed in. Constable Stevenson further stated that the Accused relied on a date written in the log of March 20 as his return date to Duncan. Furthermore, the Accused could not provide Constable Stevenson with any contact information for the family members with whom he had spent that weekend. The Accused did provide a telephone number for his uncle.

That permitted Constable Stevenson to speak to the uncle and to receive some information about driving the Accused to and from Victoria. [ 88 ] In cross-examination, Constable Stevenson did not recall and conceded that the Accused could have told him that he came back on March 21. [ 89 ] In cross-examination, Constable Stevenson testified: his notes made on April 18, 2016, following the attendance at the Accused's mother's residence, did not specifically say that he had asked the Accused for contact information for Fabian Jones and Joe Charlie, nor does it say in his notes that the information was never given to him.

He later conceded that he was provided with a telephone number for Fabian Jones, but he recalled calling that number and it did not work. He conceded that he did not return to ask the Accused for another or a different telephone number for Fabian Jones.

He further conceded that his notes made no mention of the Accused not remembering the motel which he stayed in while in Victoria, but that that information appeared in later disclosure provided to the Crown. [ 90 ] Constable Stevenson further confirmed that he never specified to the Accused about the time that the incident, the subject of his investigation, had occurred.

Constable Stevenson did confirm that when he was interviewing the Accused on April 18, 2016, he mentioned that it was at night. [ 91 ] Constable Stevenson further confirmed in cross-examination that based upon his past experience with the Accused, that he was somewhat surprised that the Accused's name had come up as a person who had committed the assault against the Complainant. Evidence of Darrell Byron [ 92 ] Darrell Byron is a veteran jail guard for the RCMP at the North Cowichan-Duncan detachment.

He was responsible for photographing the Accused and for creating a series of photographs for inclusion into the photograph pack. No issue is taken with respect to the form or contents of the photograph pack. Evidence of Constable Jillian Woodley [ 93 ] Constable Woodley presented the photograph pack to the Complainant on April 21, 2016, at the North Cowichan-Duncan detachment of the RCMP.

At that time, she had no knowledge of the investigation of the events other than to know that it was in connection with an assault with a weapon as disclosed on the face page of the photo pack. [ 94 ] She testified about the procedures that were utilized including following the printed instructions on the photo pack. No issue is taken with respect to the photo pack itself or the procedures that were followed. The interview of the Complainant was video-recorded.

The video-audio recording was played in court and admitted as an exhibit. [ 95 ] In the course of the Complainant's review of the photograph pack, the Complainant paused somewhat dramatically and looked up before saying, "It is him," and before signifying his identification of the Accused as the person who "broke my door" and was the first of four people who entered and assaulted him. Defence Evidence Evidence of the Accused Edwin Jones [ 96 ] The Accused testified that he completed grade eight.

He suffered a number of serious injuries in a car accident when he was approximately age 33, which included a fractured skull and extensive facial injuries. He does not know if he was diagnosed as having a brain injury. He cannot read newspapers nor can he write other than at the level of a three-year-old. He has significant difficulty spelling. He says he got up to grade eight, but was a poor student. On re-direct, he also confirmed that he believes that head trauma that he suffered when he was young affected his ability to read and write. He also says that he has had a hard time remembering things and

feels that he still suffers from that problem at present. [ 97 ] Notwithstanding these limitations, he works at a fish farm located outside of Campbell River, British Columbia, on Northern Vancouver Island and has done for some 19 years. His job loading the feeding silos requires him to be in camp for eight days and then out of camp for six days. When he is out of camp, he stays in Nanaimo, Duncan, and from time to time in Victoria. He describes himself as five foot eight and a half inches tall.

His weight is approximately 200 pounds. [ 98 ] He testified that he knew the Complainant, Samuel Williams, but they are not close friends. He stated that he has known the Complainant "maybe a couple of years", but "we do not hang out." He says that they met as teenagers through mutual friends. He denied that he went to school with Samuel Williams. The Accused said that he attended Duncan Elementary School. [ 99 ] He stated that he did not recall drinking with the Complainant.

He did acknowledge that he knows S.M. through a few friends and indicated that they do not hang out regularly, although he did confirm that they have done so "a couple of times." [ 100 ] The Accused indicated that he had learned about S.M.'s children being babysat by the Complainant, but said that he had no knowledge of any intervention by the child protection social worker. [ 101 ] He denied that he had ever assaulted the Complainant in any fashion.

He denied that he went to the residence of the Complainant on March 20, 2016. [ 102 ] He did indicate that after the events of March 20, 2016, the Complainant and he were passing on the street and the Complainant started to say hi to him. He said that he did not respond. The Accused indicated that he and his brother, Erwin, look alike and that they were often mixed up. However, Erwin has now passed away. [ 103 ] The Accused also testified that his mother told him that the police were trying to contact him to talk to him. No reason was provided.

He recalled meeting Constable Stevenson and providing him with his statement. He said that he had no recollection of Constable Stevenson specifying the time of the Events that were being investigated, but he understood it was sometime in the evening of March 20, 2016. He was under the impression that it was sometime in the evening maybe around 10 p.m. [ 104 ] He did recall denying to Constable Stevenson that he was involved in the assault of the Complainant. He also indicated to Constable Stevenson that there was a log book which had information about his location and activities.

He testified that the log book was maintained by his mother and by his aunt. He did not write in the logbook or make edits to the log book because he cannot write. He never asked his mother or his aunt to add any entries or make any edits. [ 105 ] He testifies that after Constable Stevenson had driven him home, he found and looked at the log book and told Constable Stevenson that he was in Victoria handing out fliers in search of his missing brother, Everett Jones, from March 18th until the following Monday. He was not sure what day that was.

It was a stressful period in his life and that of his family because of his brother being missing. [ 106 ] He was unable to remember the name of the motel that he stayed at in Victoria, but did recall that he was there for two nights. [ 107 ] Although he did not know the name of the motel, he knew the general location on Douglas Street in Victoria and, through a process of elimination he was eventually able to locate the motel and its name as the Island Travel Inn.

He was also able to obtain an invoice in his name dated March 20, 2016, which confirmed a two night stay for which he had paid. [ 108 ] He stated that while in Victoria on March 18 and 19, he met up with his cousins, Fabian Jones and Corey Jones, as well as Joey Charlie and a Gerry Payton also known as Billy Payton. They spent their time in the downtown area of Victoria and in Esquimalt handing out the posters with the Accused's missing brother's picture on it. The Accused says that Fabian Jones spent the night of March 18 and the night of March 19 with him in the motel. The group of them drank in the motel room.

However, Joey Charlie was found by motel staff in a hallway on the night of March 19. That resulted in the Accused and Fabian getting kicked out of the motel and unable to get a further night's reservation. They checked out of the motel around 11 a.m. on March 20, 2016. Thereafter, he and Fabian Jones handed out more fliers and then made their way to the residence of another relative, Desiree Jones. En route, they stopped at a bar for some drinks and to purchase liquor. [ 109 ] They continued to drink at Desiree Jones' residence following their arrival at that location.

The Accused said he got very drunk and could not walk, passed out, and he had to spend the night there. [ 110 ] The Accused produced a page that he says he found on Desiree Jones' Facebook page. It is a photograph of him and a person whom he identifies as Desiree Jones. The date of the document is March 20, 2016. He said that is the day he believes the photo was taken of the two of them. He denied that he had asked Desiree Jones to add the photo to her Facebook page. [ 111 ] He testified that he left Desiree Jones' home on March 21 around 11 a.m. or 12 noon to travel back to Duncan.

His Uncle Paul Charlie drove down from the Cowichan Valley to pick him and return him to Duncan. [ 112 ] The Accused indicated that while he was talking to Constable Stevenson, he did not tell him about staying at Desiree Jones' residence because he had no recollection of doing so. [ 113 ] He did not have contact particulars for the other people he spent the weekend with in Victoria.

He believes at some point he provided Constable Stevenson with Fabian Jones' telephone number, but has no recollection of hearing back from Constable Stevenson about Fabian Jones' telephone number. [ 114 ] He said that he was eventually able to reconstruct his movements on the evening of March 20, 2016, and the fact that he spent the night at Desiree Jones' residence. He said that it required him to speak to both Fabian Jones and Desiree Jones in order to assist in refreshing his memory about those events.

[ 115 ] The Accused was rigorously but appropriately cross-examined. In his cross-examination, he did confirm that he had been to the Complainant's residence two years before the offence and once in 2016. He was there with S.M. and nobody else. They were consuming beers over the course of two or three hours. He has no recollection of the Complainant showing up during these visits. [ 116 ] He also acknowledged that he has known S.M. for quite some time. At one time, he was seeing her every two or three months, but no more because of the fact that he does a lot of travelling for his work.

He says that he has only seen her twice in the last year and that the last time preceding the Events was January, February, or March of 2016. [ 117 ] He says that he did not know at that time that she had any difficulties with the child protection social workers.

He acknowledged that there were some inconsistencies in that evidence and the statement that he had given to Constable Stevenson and then conceded that he probably must have known at some earlier occasion. [ 118 ] He further confirmed that his brother, Erwin, was two years older than he was and that Erwin passed away when the Accused was 20 or 21 years of age. [ 119 ] He was cross-examined extensively about the log book and the various entries in it.

He denied that he made any of those entries in the book. [ 120 ] He testified that he had made three or four trips to Victoria looking for his missing brother from about the end of February 2016 until April 18, 2016, being date he provided his statement to the police. [ 121 ] He confirmed that his Uncle Paul drove him to Victoria and he was sure that was on March 18, 2016. He was able to recount that he met up with others, but there was some uncertainty as to exact times.

He could recall some of the areas that he visited including homeless shelters, the tent city located at the Victoria courthouse, and the downtown library. He said that he and Joey, Fabian, and Corey walked around for most of the afternoon, but stopped around 5 p.m. He says that they handed out a lot of fliers. [ 122 ] He says they then went to the motel and consumed some beer that they had bought. He was unable to recall what they had for dinner or what he watched on TV. Although Fabian Jones stayed in the room with him and the others left, he could not recall what time they left.

He admitted he was uncertain as to which days he visited the tent city, but he knew Fabian, Billy, and Corey were present. [ 123 ] He said that in order to determine who was with him at a given time that he had to backtrack and ask various people including his cousins Corey, Fabian, and his niece Desiree. He was clear that Fabian and Joey were with him on March 18th and Joey was with him on part of the 19th. However, Joey left and then tried to return to the motel room after midnight and knocked on the door. The Accused did not open the door to allow him to enter the room because he wanted to go to bed.

He said that the next morning, they found Joey passed out in an armchair in the hallway. [ 124 ] The Accused said that he paid $175 cash for his first night in the motel and that he did not use a credit card because he does not have one. He paid another $175 in cash for the second night. He stated he did not provide any identification when he checked in. [ 125 ] He provided details of the residence occupied by Desiree Jones and her children and her boyfriend. [ 126 ] After an extensive amount of drinking at Desiree Jones', Fabian left and went home because he had to work the next day.

The Accused stated that he woke up at approximately 10 a.m. the next morning. Desiree Jones and her children were present. He stated that he then called his Uncle Paul and asked him to come to the Mayfair Shopping Centre in Victoria to meet with him and take him home to Duncan. He stated that his Uncle Paul had driven him to Victoria and picked him on a couple of occasions, but only when he was looking for his brother.

On other occasions, he took the bus to Victoria. [ 127 ] The Accused testified that his Uncle Paul does not like it when he drinks and would not come and get him in Victoria if he had been drinking. He also indicated that he does not know any people who would come and pick him up if they knew he was drunk and, as I understand it, to drive him back to Duncan. [ 128 ] He admitted that there were some uncertainties as to his recollection about various sequences of events on each of the days during alibi period. Evidence of Salem Barjarsh [ 129 ] Mr.

Barjarsh is the manager of the Island Travel Inn and has been for the past four years. [ 130 ] He was able to locate the Accused's paid invoice for two nights of accommodation and also a room reservation in the Accused's name likely made at the front desk for the nights of March 18 and 19, 2016, with a checkout on March 20, 2016. [ 131 ] The Island Travel Inn's requirement to obtain accommodation is to get money up front and photo identification must be presented. Therefore, a deposit of $250 was taken from the Accused.

It appears from the invoice that part was paid by way of debit card and the other part was paid through a credit card. [ 132 ] Mr. Barjarsh had no knowledge of a Victoria police department officer coming to the motel to make inquiries and not being able to find a reservation or a confirmation of a stay during those dates by the Accused. [ 133 ] Mr. Barjarsh disagreed that the Accused would have made two cash payments of $175 for each night. From the Island Travel Inn's records, the Accused would have checked in on March 18, 2016, around 9:56 p.m.

This time was inconsistent with the Accused's recollection that he had checked in much earlier on that date. [ 134 ] There was nothing in the records to indicate that the Accused had been denied a further stay on March 20, 2018, because of some disturbance. The motel's usual practice is to record if an individual had been kicked out for creating disturbances in order to deny a

further booking. Mr. Barjarsh conceded that it may not have been recorded in the motel’s records. Evidence of Fabian Jones [135] Fabian Jones is 38 years of age. He is also aboriginal. He works as a demolition contractor and has done so for the last eight to10 years. He is a relative of the Accused.

He describes their relationship as being "fairly close." [136] He recalls being with the Accused the whole weekend on one occasion and, at which time, he and some other friends andrelatives, including Corey Jones, helped the Accused distribute missing person posters regarding the Accused's missing brotherthroughout downtown Victoria. [137] He recalls that he probably saw his cousin, the Accused, on Friday, March 18, 2016 and that most of the time was spent gettingorganized and trying to figure out where they were going to distribute the posters. He indicated that they were likely drinking beer in themotel room.

Fabian Jones indicated that he got pretty drunk and asked the Accused if he could spend the Friday night in the motel roomand was allowed to do so. He described that the next day, being the Saturday, the group was going to various locations together in thedowntown core of Victoria and that his brother, Corey Jones, had distributed posters in the Esquimalt area where he lived. [138] He testified that he spent Saturday night in the motel room with his cousin the Accused. Again, they consumed a significantamount of beer. He said they woke up the next morning and it was light out.

They checked out of the motel, but he was not sure whattime it was that they checked out. [139] Fabian Jones recalled that they then spent some time distributing fliers that morning, but a significant portion of that day wasalso spent drinking and socializing with friends. He recalled that they contacted Desiree Jones, who the Accused had not seen for sometime, and made their way to her residence. [140] By the time they arrived at Desiree Jones' residence, he said that the Accused was on the verge of staggering from alcoholconsumption. He believed it was around 6 p.m.

He recalls that the Accused and he went back to the liquor store to obtain more liquor. They returned to Desiree Jones' residence. More liquor was consumed and he said that he then departed just as it was starting to getdark. He observed that it appeared that the Accused was pretty intoxicated, but still standing. It appeared that the Accused was going tocontinue to drink after Fabian Jones left.

Fabian Jones commented that over the years when he gets together with the Accused, theAccused always finishes what he purchases by way of liquor. [141] In cross-examination, Fabian Jones confirmed that he worked on the Friday and he usually gets off between 3 p.m. and 5 p.m. He had some recollection that they had handed out fliers on the Friday. He was able to provide some details and of all the variouslocations that they went.

He recalls having to go to the post office to run off more copies of the missing person posters. [142] When showed a chart of sunrises and sunsets for March 20, 2016, he agrees that he left Desiree Jones' residence before sunset at7:20 p.m. and it was likely just before or after 7 p.m., before it was really dark. Case Authorities Relied upon by Crown [143] With respect to the issue of identification, Crown relied on the following case authorities: 1. R. v. McIsaac, (B.C.C.A.), [1991] B.C.J. No. 3617; 2. R. v. Bob, 2008 BCCA 485; 3. R. v.

Pierce, 2011 BCCA 485. [144] With respect to the law of alibi, Crown relies upon the following authorities: 1. R. v. Allen, 2017 (M.B.C.A.); 2. R. v. Cleghorn, (SCC), [1995] 3 S.C.R. 175; 3. R. v. Noble, (SCC), [1997] 1 S.C.R. 874; 4. R. v. Cain, 2015 ONCA 815; 5. R. v. Burman, 2015 BCCA 519, affirming R. v. Burman, 2013 BCSC 2395; 6. R. v. Burman, 2013 BCSC 2395; 7. R. v. Hibbert, 2002 SCC 39. Case Authorities and Articles Relied upon by Defence [145] Defence has relied upon the following case authorities or articles: 1.

Department of Justice publication entitled FPT Heads of Prosecutions Committee Report of the Working Group on thePrevention of Miscarriage of Justice: Eyewitness Identification and Testimony, found on the Internet at http://www.justice.gc.ca; 2. R. v. Jolivet, 2000 SCC 29; 3. Her Majesty the Queen v. Rakesh Chand (neutral citation, R. v. Chand, 2014 ONCJ 63).

[ 146 ] I note that notwithstanding the fact that I may not make specific reference to some of these decisions or articles, I have, in fact, read and considered each of them in coming to my decision in this matter. Crown's Position [ 147 ] It is Crown's submission that the Accused should be convicted on both counts of the information by way of indictment. [ 148 ] Crown says that the cautionary concerns about eyewitness identification do not apply to this case before the court because this is a recognition case and not an eyewitness identification case.

Crown says that this is based on the fact that the Complainant knew the Accused for some 20 to 30 years. [ 149 ] It is Crown's submission that the fact that the Complainant may have mixed up the Accused with his brother should not sufficiently undermine the Complainant's recognition of the Accused. [ 150 ] Therefore, the recognition evidence of the Complainant should be accepted as reliable evidence by the court as to the identification of the Accused beyond a reasonable doubt, notwithstanding the existence of some minor inconsistencies. [ 151 ] Crown notes that the Complainant was absolutely certain of his recognition of the Accused from the outset while he was interviewed in the emergency room at the hospital. [ 152 ] The Crown further submits that the Accused's alibi that he was at Desiree Jones' residence on the night of March 20, 2016, when the events were occurring, should be given no weight and should be rejected, but not excluded from the evidence. [ 153 ] Crown states that it is not suggesting that this alibi was fabricated, but they do say that it is an unbelievable alibi. [ 154 ] Crown further notes that this alibi regarding being at Desiree Jones' residence was only disclosed after Crown had closed its case. [ 155 ] Crown summarizes the evidence of the defence as being "full of holes." [ 156 ] In Crown's submission, the Accused's evidence should be found to be incredible and unreliable due to a number of inconsistencies, lack of an important recall, and conflicts within it, both while he says he was staying at the motel passing out missing person posters and also during his stay at Desiree Jones' residence. [ 157 ] Crown suggests that an adverse inference should be drawn arising from the fact that Desiree Jones was not called as a witness by defence, and the inference that should be drawn is that she would have contradicted the Accused's alibi. [ 158 ] It is Crown's submission that the log book has no evidential value in proving the alibi.

Crown says that there is no clear evidence as to who completed the log book and Crown suggests that there was an opportunity for it to be doctored prior to being viewed by the police. [ 159 ] Crown says that the evidence of Fabian Jones is neither credible nor reliable in support of the alibi. Again, Crown cites the failure to recall and relate important factors plus a number of factual errors and contradictions such as check-in times at the motel and where Fabian Jones and the Accused were on Friday night are all relied upon by Crown in support of this proposition.

Defence's Position [ 160 ] Defence submits that the court should acquit the Accused on both counts. [ 161 ] Defence says that this case demonstrates poor police investigative techniques throughout.

In particular, defence notes that apparently there were four intruders that assaulted the Complainant, but this has resulted in only one charge. [ 162 ] Of specific concern, in defence's view, is the lack of corroborating evidence other than the Complainant's identification of the Accused as a perpetrator. [ 163 ] It is noted that there is no forensic evidence and no DNA evidence is being presented by Crown in support of their case. [ 164 ] Furthermore, defence notes that a statement from the only independent witness, namely the neighbour, Lawrence White, was not taken by the police for several months following the events. [ 165 ] Crown states that the evidence of the Complainant may be credible, but that evidence must be scrutinized on a number of key factors including as follows: the somewhat limited familiarity of the Complainant with the Accused; the limited time for the Complainant to make a recognition of the Accused; and the stressful and difficult situation in which the Complainant made that recognition. [ 166 ] Defence says that the evidence of the Accused admittedly was marked by poor recall, but it was generally consistent and straight forward on material points. [ 167 ] Defence notes the steadfast denial of the Accused both to the police and in his evidence in court.

Defence says the Accused never wavered. [ 168 ] Defence suggests that the Accused provided information about his alibi to the police very early on. It is acknowledged that he forgot about being at Desiree Jones' on the night of the Events. It is admitted that this part of the alibi was not disclosed by the Accused to Crown until January 21, 2018. [ 169 ] The defence also submits that the log book assists in corroborating the alibi and that it was not edited by the illiterate Accused

nor did he have any cause to edit it before attending at the police interview on April 18, 2016. [170] It is further submitted that any suggestion of fabrication of the alibi must be rejected because of the timely raising of the alibi bythe Accused at the outset of the police contact with him. [171] The evidence of Fabian Jones, in defence's submission, corroborates the alibi. With respect to Fabian Jones, it is noted that hediligently tried to remember and to tell the truth throughout both his examination in chief as well as in cross-examination.

Analysis [172] The Complainant, the Accused, and Fabian Jones have faced the challenge of testifying about events which took place over ayear and a half and approaching two years ago. [173] These are important factors when considering the reliability of their evidence since the passage of time tends to cause memoriesto fade and tends to erode the quality of the evidence, as does the whole of the circumstances surrounding the Events. [174] The Complainant faces the additional and significantly difficult challenge of relating very traumatic events that occurred in avery frightening situation and all very quickly.

Demeanour [175] Trial judges should not place an over-emphasis on demeanour or how a witness behaves while giving evidence when assessingtheir credibility (see R. v. Jeng, 2004 BCCA 464 , at paragraph 54). In court, witnesses are required to speak about difficultevents in a very foreign and public environment. They are often nervous and feel significant pressure when undergoing a prolongedexamination (see R. v. Shields, supra, at para 74). [176] I am mindful that the three principal witnesses, namely, the Complainant, the Accused, and Fabian Jones, are all aboriginalpersons.

In the course of each of their evidence at times it was marked by: (

a) slower speech; (

b) less eye contact; (

c) longer pauses; and, (

d) brevity or topic avoidance. [177] In some circumstances, these features may be associated with witnesses who are being uncooperative and/or deceptive. In thiscase, I am of the view that these features of demeanour for these three witnesses cannot be negatively assessed in those terms.

Rather,these features of demeanour for these three witnesses are completely understandable and appropriate and likely flow from theiraboriginal heritage and cultural backgrounds. [178] However, after allowing for these considerations and having applied the various tests and considerations when assessing theevidence of witnesses and, in particular, the reliability and credibility, all of which are described at the outset of these reasons, I reach thefollowing conclusions about the three principal witnesses. [179] I find the Accused presented generally as a straightforward witness while testifying.

He clearly has some cognitive deficienciesthat became apparent especially on cross-examination, but he made a reasonable attempt to provide truthful and accurate answers. Hehad marked difficulty remembering some collateral details as it related to his time in Victoria, which was the foundation of his alibi. There were also some inconsistencies and contradictions in his evidence. He was generally unshaken in his cross-examination of thesignificant details. He made concessions about the problems with his memory as it related to certain incidences.

He held fast in hisdenial that he was an assailant of the Complainant. [180] I find the evidence of the Complainant to be credible. I do not think that he was intentionally lying or misleading. His evidencewas at times contradictory. There was an admitted lack of recall about certain significant events and especially about his interaction withthe police. That raises a concern about the accuracy and reliability of the identification evidence that he has proffered in this matter. [181] Fabian Jones presented reasonably well as a witness.

He clearly had difficulty remembering some of the details and the eventson the weekend on March 18, 2016. He generally admitted when he was unsure. His evidence stood up satisfactorily to rigorous cross-examination. Considerations [182] The identification of the Accused by the Complainant and the alibi of the Accused cannot stand together in terms of a finding offact. It seems to me that when considering whether Crown had met its obligation to prove the Accused committed the crimes,notwithstanding his alibi, I must consider the evidence of identity and alibi together.

Hence, I will be weighing the alibi evidencetogether with the identification evidence. Findings of Fact [183] The Complainant was subject to a frightening targeted home invasion, during which time he was viciously assaulted with aweapon and sustained significant injuries by four intruders, one being a person described by both the Complainant as being very big andby the independent witness, Lawrence White, as being very tall. There were likely three males and one female as part of the group ofintruders.

[ 184 ] The Complainant had a brief opportunity, in the nature of a fleeting glance, to observe the lead intruder through a four-to-six- inch crack in the chained front door and then while being pushed back by that individual to the bedroom area where the vicious assault occurred, ultimately leading to the Complainant being curled up on the floor attempting to protect his head. The Complainant did not have an opportunity to view his assailants other than by way of glimpses while curled up on the floor and while being savagely beaten, with blood flowing from his head wounds.

The Complainant was unlikely to be able to view all of the intruders or to actually know the number of assailants during the course of the vicious assault. [ 185 ] The Complainant provided uncertain and at times conflicting evidence about the attack and his attackers as it compared to his police statement. [ 186 ] The Complainant knew the Accused over a number of years, but not well. Their contact was limited. The Complainant often confused the Accused with the Accused’s brother.

In fact, after the Events, the Complainant apparently started to engage the Accused on the street not realizing who he was. [ 187 ] The Complainant provided an early statement to the police at the hospital in the emergency room, but later had no recollection of providing that statement. In his police statement, he identified the Accused as the first intruder at and coming through the door.

He provided the police only with the name of Eddie Jones, but not any physical description of the Accused. [ 188 ] In his police statement, the Accused described his assailant and various parts of his body as being “so big” when, in fact, the Accused may be heavier than the Complainant, but he is about three inches shorter. This mis-description of the physical features of the Accused is not insignificant. [ 189 ] The Complainant forgot that he had attended at the RCMP station for the purposes of reviewing the photograph pack almost a month after the attack.

He selected the Accused's picture who he identified as the first assailant at the door. [ 190 ] I have concluded that the Complainant is not a dishonest or untruthful witness. He sincerely believed that he recognized the Accused as his assailant. However, his evidence is fraught with some concerning frailties, especially when I apply the ADVOKATE factors. [ 191 ] I am mindful that the Complainant's evidence falls more into the category of recognition evidence, but with recognition evidence, it also must be carefully analyzed and assessed.

I find that the ADVOKATE factors are in this case a useful template for that analysis and assessment. [ 192 ] The Accused was questioned by the police about a month after the Events at which time he denied any involvement. Constable Stevenson did not provide precise information to the Accused about the timing of the Events. The Accused gave police an early indication of an alibi which was not full or complete, but was based upon him being in Victoria at the time with friends handing out posters in relation to his missing brother.

That was a significant event for the Accused and his family. [ 193 ] In my view, the alibi was initially timely, but lacking in some important specifics and, therefore, at the low end of being adequate. The log provided some rather cryptic details of the Accused's location.

Based upon the lack of disclosure as to why the police wanted to speak to him before he attended to provide his voluntary police statement and the fact that the Accused and Constable Stevenson then went directly to the Accused's mother's residence to obtain the log and to allow Constable Stevenson to view it, notwithstanding the various notes in different handwriting, the log appears to be at least consistent with the alibi.

I accept that the Accused did not have the necessary literacy or writing skills to make insertions or edits in that log. [ 194 ] I am of the view that the police did not complete a particularly full, diligent, or timely investigation of the alibi, nor did they apparently further contact the Accused about his alibi or any deficiencies in it. [ 195 ] The Accused was charged some three months after the Events.

The Accused then apparently started to take steps to make some inquiries of those who he was with on the weekend of March 18, 2016, as to his location and his movement including, through a process of elimination, thereby locating the Island Travel Inn where he had spent the nights of March 18 and 19, 2016, with Fabian Jones. He eventually obtained a copy of the paid invoice in his name from the motel. That apparently occurred in the days approaching the trial. That motel invoice corroborates a stay at the motel.

The Accused's recollection about his payment and the check-in procedures appears to be incorrect based upon Mr. Barjarsh's independent evidence. [ 196 ] The Accused and Fabian Jones were able to provide some fairly specific and some general evidence about their time in Victoria. This evidence is not necessarily entirely consistent, especially in connection with the exact timing and the events during the period that they spent the weekend in Victoria handing out posters and consuming alcohol.

I cannot conclude that their evidence has been coordinated or tailored. [ 197 ] The weakest part of the Accused's alibi is his whereabouts and what he did on March 20th, 2016, being the day of the Events. The Accused says that he was with Fabian Jones at Desiree Jones' residence for the evening drinking with her and eventually passing out and spending the night of March 20, 2016, at her residence. [ 198 ] Fabian Jones provides corroborating evidence of being at Desiree Jones' residence with the Accused and about the Accused consuming beer and becoming intoxicated.

Fabian Jones says that when he left around 7 p.m. or possibly somewhat later, the Accused was intoxicated and seemed to be settling in to continue to drink. I find this part of the alibi plausible. I also find that the Accused's explanation about being dependent upon a ride from his uncle, who disapproved of his drinking, to be able to make a return trip to Duncan to also be plausible.

Therefore, I also accept as plausible the Accused's explanation that he returned to Duncan on March 21st, 2018, with the driving assistance of his uncle. [ 199 ] I accept Fabian Jones' evidence as plausible with respect to the timeframe of events on March 20, 2016, as it relates to the Accused's whereabouts with Fabian Jones.

[ 200 ] If the Accused was actually at the Complainant's residence in order to commit the home invasion and the assault upon the Complainant, then the Accused, while in a heavily intoxicated state, would have had to have secured transportation and travel for approximately an hour to meet up with the other assailants and then proceed to the Complainant's residence to commit the crimes. All of that seems unlikely to me.

Conclusions [ 201 ] Therefore, based on the evidence before me that I accept and my conclusions outlined above, I am left in a reasonable doubt about the recognition identification of the Accused by the Complainant and I am also left with a reasonable doubt that Crown has satisfied its burden of disproving the alibi beyond a reasonable doubt. [ 202 ] I am mindful that neither the Accused's Uncle Paul Charlie nor his niece, Desiree Jones, were called as witnesses by defence or, for that matter, by Crown.

Any resulting adverse findings available to me, in light of the evidence that I do accept, would not produce a different result in this case. Decision [ 203 ] Based on all the foregoing, I acquit the Accused on both Counts 1 and 2 of Information 38777-1. [ 204 ] That concludes my reasons. (REASONS FOR JUDGMENT CONCLUDED)