R. v. Moore Date:, 2015 BCPC 182

Citation: R. v. Moore Date: 20150622 2015 BCPC 0182 File No: 39105-2C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LUKE MOORE REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: T. Gamble Counsel for the Defendant: M. Houg; R. Smith Place of Hearing: Prince George , B.C. Dates of Hearing: June 23, 24, September 30, 2014; April 20, 2015 Date of Judgment: June 22, 2015 INTRODUCTION

[ 1 ] The Accused, Luke Moore (Mr. Moore) is charged on Information 39105-2-C with seven Counts which are alleged to have occurred on July 13, 2013 in Prince George, British Columbia including:

a) Count 1: assault upon Keith Zamniuk (Mr. Zamniuk) and Patrick O’Donnell (Mr. O’Donnell) using a weapon, to wit: a motor vehicle, contrary to

Section 267 (

a) of the Criminal Code (the Code );

b) Count 2: assault upon Mr. O’Donnell using a weapon, to wit: a motor vehicle, contrary to

Section 267 (

a) of the Code ;

c) Count 3: assault upon Mr. O’Donnell using a weapon, to wit: a machete, contrary to

Section 267 (

a) of the Code ;

d) Count 4: dangerous operation of a motor vehicle, contrary to Section 249(1) (

a) of the Code ;

e) Count 5: uttering a threat to cause death or bodily harm to Mr. Zamniuk, contrary to

Section 264.1(1) (

a) of the Code ;

f) Count 6: uttering a threat to cause death or bodily harm to Mr. O’Donnell contrary to

Section 264.1(1) (

a) of the Code ;

g) Count 7: possession of a weapon, a machete, dangerous to the public peace, contrary to Section 88(1) of the Code . [ 2 ] The Crown contends that during the events between Mr. Moore and Mr. Zamniuk and Mr. O’Donnell (collectively the Complainants) Mr. Moore threatened them and assaulted them with two weapons, his motor vehicle and a machete, and after these events occurred left the scene while operating his motor vehicle in a dangerous fashion (the Confrontation). [ 3 ] The Defence acknowledges that the Confrontation occurred between Mr. Moore and the Complainants but contends that Mr.

Moore was acting in self-defence both at the scene and when trying to depart. THE WITNESSES [ 4 ] The Crown called four witnesses:

a) Craig Polley, a taxi driver who observed some, but not all of the Confrontation and subsequently called 911;

b) Cory Tippe, a Constable with the Royal Canadian Mounted Police (the RCMP) who interviewed the Complainants and some of the witnesses and took a statement from Mr. Polley. He also took a statement from Mr. Moore;

c) Keith Zamniuk, who was 19 years old at the time, a six foot two inch, one hundred and seventy five pound resident of Prince George. He had known Mr. Moore for two years and had told Mr. Moore he had been charged with assault in the past. He was on probation at the time of the Confrontation;

d) Patrick O’Donnell, who was 28 years old at the time, a five foot ten inch, one hundred eighty pound radiator technician resident of Prince George. He had known Mr. Moore for eight months and had told Mr. Moore he had been charged with assault in the past. [ 5 ] The Crown also relied on the statement of Mr. Moore given to the RCMP on the evening of the Confrontation. [ 6 ] Defence counsel pointed out that the Crown did not call Ashley Lapointe, Mr. Zamniuk’s girlfriend who was present throughout the Confrontation and was not a participant. [ 7 ] Defence counsel called two witnesses:

a) Luke Moore, who was 19 years old at the time, a dyslexic heavy duty mechanic and truck driver, who lives in the College Heights neighbourhood of Prince George;

b) Laura Moore, a 31 year old day care operator and the sister of Mr. Moore, who lives on Harper Street, in Prince George. THE EVIDENCE [ 8 ] Instead of reciting the evidence of each witness in turn I will summarize the evidence of each witness as the events unfolded. Prior Events [ 9 ] Mr. Moore and the Complainants had been socializing as part of a larger group for several months. Although Mr. Moore believed that he was friends with the Complainants, they and others in the group had recently determined that they no longer wished to socialize with Mr. Moore. Mr.

Moore was not told of this decision until well after the Confrontation began. Location of the Confrontation [ 10 ] The Confrontation occurred near an embankment and treed area on the western edge of a large parking lot associated with a national chain automotive parts business and a number of smaller businesses including a national coffee and fast food restaurant located in a separate building at the far end of the parking lot. It was an area frequented by the Complainants, Mr. Moore and others, for socializing.

[ 11 ] All the witnesses agreed that the parking lot was very large and capable of holding many vehicles. [ 12 ] Mr. Zamniuk stated the Confrontation occurred in the mid-afternoon and the parking lot was fairly busy, but not packed, at the time. Mr. O’Donnell said the Confrontation occurred shortly after 5 pm because he worked until 5 pm. Mr. Polley stated that the events occurred in the early evening between 6 and 7 pm after all the stores were closed except for the fast food location. He described the parking lot as pretty well empty. [ 13 ] Cst.

Tippe stated that he received the first dispatch 18:42 based on Mr. Zamniuk’s call and a second dispatch based on Mr. Polley’s call shortly after. He arrived at the scene at 18:54. The Argument [ 14 ] Mr. O’Donnell was the first to arrive at the parking lot. He backed his full size 1994 red Ford F-150 extended cab 4 x4 pickup truck into a parking stall against the embankment. Mr. Moore arrived next in his 1994 green compact Ford Ranger extended cab 4 x 4 pickup truck and pulled front first into an adjoining parking place.

He stopped his pickup so the driver’s doors were adjacent to each other and about three feet apart to facilitate socializing. [ 15 ] Mr. Zamniuk and his girlfriend, Ashley Lapointe, arrived last. They were walking. Mr. Zamniuk took a position between the two drivers’ doors to facilitate conversation. At that point Mr. O’Donnell and Mr. Moore were each in the driver’s seat of their own pickup. [ 16 ] Mr. Zamniuk and Mr. O’Donnell said Ms. Lapointe stood near the back of Mr. O’Donnell’s pickup throughout the Confrontation. Mr. Polley said he saw her in Mr. O’Donnell’s pickup. Cst. Tippe’s notes indicated that Ms.

Lapointe told him she was standing beside Mr. Zamniuk the entire time. [ 17 ] Mr. Zamniuk estimated that there was at least 40 feet between the O’Donnell and Moore vehicles and the next closest vehicle in the parking lot. Mr. O’Donnell said the parking lot was busy with vehicles. Mr. Polley said the parking lot was practically empty. [ 18 ] As everybody was socializing Mr. Zamniuk made mention of a Kijiji ad he had seen for a pickup truck located at a specific address. Mr. Moore contradicted Mr. Zamniuk’s recollection of the vehicle’s location. That contradiction soon led to Mr. Zamniuk and Mr.

Moore debating the point, exchanging betting challenges, arguing and screaming at each other and exchanging epithets. [ 19 ] Mr. Zamniuk said by then he was irritated and he believed Mr. Moore was angry. [ 20 ] Mr. Zamniuk said at that point Mr. Moore threatened to cut off one of his limbs so he put his arm through the window of Mr. Moore’s truck and told him to do so. He said he did not believe that Mr. Moore would act on that threat. He denied striking Mr. Moore at that point. He also said that at no time did he see Mr. O’Donnell strike Mr. Moore. [ 21 ] Mr. Moore acknowledged that he threatened to cut off Mr.

Zamniuk’s limbs during the early stages of the argument but that he said those words in response to Mr. Zamniuk having reached into the cab of his pickup and slapping him and striking him several times. [ 22 ] At that point Mr. Moore opened his pickup door and pinned Mr. Zamniuk between the two vehicle doors using his legs for leverage. Mr. Zamniuk said that the two doors did not contact each other because he was between them but that Mr. Moore’s pickup door could have been creased by contacting his body. [ 23 ] Mr. Zamniuk said that Mr.

O’Donnell then climbed partway out his driver’s door window, forced the door of Mr. Moore’s pickup closed and then climbed completely out of his window to the ground. [ 24 ] Mr. O’Donnell said that Mr. Moore’s pickup door was hitting his pickup and scratching the paint. This upset Mr. O’Donnell who reached through his driver’s door window and forced Mr. Moore’s driver’s door shut. He then opened his driver’s door and got out of his pickup. [ 25 ] Mr. Moore said that when he opened his pickup’s door to pin Mr. Zamniuk the door also struck Mr. O’Donnell’s pickup. When the door was closed by Mr. O’Donnell, Mr.

Zamniuk and Mr. O’Donnell struck him again. [ 26 ] Mr. Zamniuk said that Mr. O’Donnell then reached in through the driver’s window of Mr. Moore’s pickup and grabbed Mr. Moore’s shirt, although he did not recall the shirt being torn at that time. Mr. Zamniuk denied any knowledge of Mr. Moore’s shirt being torn or who would have done that during the Confrontation. [ 27 ] Mr. Zamniuk stated that Mr. Moore then said words to the effect of “I’m going to beat the shit out of both of you”. At which point he opened Mr. Moore’s driver’s door and replied to Mr.

Moore words to the effect “Get out, fight one of us or get out of here. We don’t want you here anymore” and to which Mr. O’Donnell added words to the effect “we don’t want you here anymore, Luke. You’re just causing disturbances. You need to leave.” [ 28 ] Mr. O’Donnell said that by this point he had moved to the rear of his pickup and called Mr. Moore out to fight “like a man”. He said he said that several times but only added the phrase “one on one” at the end of that string of phrases. [ 29 ] At this point Mr. Zamniuk said he was mad and believed Mr. O’Donnell was mad as well. Mr.

O’Donnell said both he and Mr. Zamniuk were mad at Mr. Moore by that point. He described Mr. Zamniuk being “like a teapot ready to explode”. [ 30 ] Mr. Moore said he did not hear anyone ask him to leave at that point. He was being called out to fight and he had considered leaving but didn’t because he thought things would calm down. It was at that point that Mr. O’Donnell entered the passenger side of Mr. Moore’s pickup and grabbed at his shirt so he tried to back up the pickup to escape the situation. The Machete

[ 31 ] Mr. Zamniuk stated that moments after Mr. Moore was called out to fight he saw Mr. Moore reached down into the pocket of the driver’s door and pulled out a machete inside its sheath. However, under cross-examination he said with the driver’s door closed he couldn’t see where the machete was. [ 32 ] He said that he called out “machete” and then stepped forward and grabbed the weapon by the sheathed blade. He said he did that to keep Mr. Moore from pulling the weapon out of the sheath. [ 33 ] Mr. Zamniuk said that Mr. O’Donnell then went to the other side of Mr.

Moore’s pickup, perhaps kicking the front fender or wheel on his way by, opened the door and reached in and grabbed the handle of the machete saying to Mr. Zamniuk “let go of the machete and I’ll pull it out”. According to Mr. Zamniuk, Mr. Moore had both of his hands on the machete but then let go of it. [ 34 ] Mr. Zamniuk said he was familiar with machetes having been attacked on two previous occasions with one of those weapons. [ 35 ] Mr. O’Donnell said he heard Mr. Zamniuk call out “machete” and he moved to the passenger door of Mr.

Moore’s pickup, opened the door, leaned into the pickup and reached out and grabbed a sheathed item. In cross-examination he agreed that he did not see the item he grabbed. He also confirmed that he may have grabbed and ripped Mr. Moore’s shirt during that altercation. [ 36 ] Mr. O’Donnell said he had no hesitation in trying to disarm Mr. Moore after Mr. Zamniuk called out “machete” because he knew how to handle himself and had stopped people with baseball bats on prior occasions. [ 37 ] Mr. Zamniuk and Mr. O’Donnell both confirmed that with each of them standing by one of the opened doors to Mr.

Moore’s pickup he was effectively trapped inside. [ 38 ] Mr. O’Donnell said that at some point in the Confrontation he clearly recalled Mr. Zamniuk kicking the door of Mr. Moore’s pickup but he could not recall exactly when that occurred. [ 39 ] Mr. Moore acknowledged owning a machete that had been seen by the Complainants on previous occasions but that he did not store it in his pickup. He said that storing an item like that in the cab would be very dangerous in the event of an accident. He denied that his machete was present at any time during the Confrontation.

He also said he did not hear anyone call out “machete”. Mr. Moore Backing Up [ 40 ] According to Mr. Zamniuk, Mr. Moore then started his vehicle, put it into Reverse and then accelerated quickly. This caused both Mr. Zamniuk and Mr. O’Donnell to spin away from the open doors in opposite directions with Mr. Zamniuk ending up near Mr. O’Donnell’s pickup and Mr. O’Donnell having to walk back towards his pickup. [ 41 ] Mr. O’Donnell said that when Mr. Moore put the pickup into Reverse he let go of the machete and he and Mr. Zamniuk moved out of the way of the pickup doors to avoid being struck by them. [ 42 ] Mr.

Zamniuk stated that there was plenty of room at that point for Mr. Moore to pull forward and turn his pickup to leave the area but he did not. Mr. O’Donnell described the pickup reversing about 10 feet. [ 43 ] Mr. Moore said that he tried to back up while Mr. Zamniuk was attacking him from the driver’s side and Mr. O’Donnell was attacking him from the passenger side but the pickup stalled; something that had occurred before. He believed the pickup moved very little, if at all, before stalling. He said he put the pickup into Neutral to restart it. Mr. Moore Driving Forward [ 44 ] Mr.

Zamniuk stated at that point Mr. Moore stopped his truck, placed it into Drive, accelerated until the motor roared and launched the vehicle forward while looking directly at Mr. O’Donnell causing the pickup to strike him. [ 45 ] Mr. Zamniuk said as Mr. Moore’s vehicle was striking Mr. O’Donnell he was trying to grab the hood to keep from going under but that he went under the vehicle at about the same time Mr. Zamniuk yelled out “Stop” and Mr. Moore hit the brakes. As he ran forward he could see Mr. O’Donnell’s head right in front of the front driver side wheel. [ 46 ] Mr.

Polley’s observations of the Confrontation began at about this point. He was driving into the parking lot in his vehicle at the entrance closest to where the Confrontation was occurring. He described one male near the driver’s door of a green pickup trying to strike the driver while another male was at the front of the pickup pounding on the hood. [ 47 ] Mr. Polley said he did not see the pickup reverse but he saw it lurch forward two to three feet and stop. The male at the front of the pickup bounced off it, swore and pounded on the hood.

The pickup engine roared up again, the tires spun and squealed and the pickup drove over the man standing in front of it. The man tried to walk backwards quickly but went under the truck. Mr. Polley said the pickup went forward about 20 feet, well past the other parked pickup. [ 48 ] Mr. Polley was adamant about his evidence, refusing to agree with Defence counsel about his recollections being inaccurate or diminished over time or when compared to that of other witnesses. He maintained that the driver of the green pickup had attempted to kill the man who was run over. [ 49 ] Mr. O’Donnell described Mr.

Moore’s pickup as “rolling forward” and that he had to put his hands on the hood and walked backwards. [ 50 ] Mr. O’Donnell said that at that point the pickup was in contact with him and he tripped and Mr. Moore accelerated the pickup and Mr. O’Donnell had to grab hold of the bumper to keep from going completely under the vehicle. He described the pickup’s speed as

3 kilometres per hour. He said he was unable to get up until Mr. Moore’s pickup backed up to leave. [ 51 ] Mr. Moore said that after he restarted the pickup he put it into the wrong gear by accident, into Drive instead of Reverse, and the pickup lurched forward. He stopped the pickup, put it into Reverse and left the area. [ 52 ] Mr. Moore said he had a slight recollection of seeing Mr. O’Donnell with his hands on the hood of the pickup and then disappearing for two seconds. He said that he did not intend to strike Mr. O’Donnell with the pickup but did not stop to render aid because he was afraid Mr.

Zamniuk would attack him again. [ 53 ] In his statement to the RCMP Mr. Moore said that he hit Mr. O’Donnell with the corner of his pickup as he was turning the vehicle to escape. Mr. Moore’s Departure [ 54 ] Mr. Zamniuk stated that Mr. Moore then placed his pickup into Reverse and started to back up and turn. He jumped into the driver’s window of the pickup to grab the keys to shut it off but Mr. Moore put the pickup into Drive and started dragging him down the parking lot. Mr. Zamniuk said he also struck Mr. Moore two times on the left side of the face at this point. After about 15 or 20 feet Mr.

Zamniuk said he came out of the window, fell to the ground and watched Mr. Moore’s pickup leave the parking lot. [ 55 ] Mr. Zamniuk stated that as Mr. Moore’s pickup was leaving there were other people walking and other vehicle traffic in the parking lot. He estimated Mr. Moore’s pickup speed at 60 km/h as he was leaving the parking lot and that he had to abruptly brake to avoid hitting somebody. [ 56 ] Mr. Zamniuk also said that Mr. Moore was driving so quickly and erratically that when he turned left to leave the parking lot the pickup went up on the two passenger wheels and almost rolled over. [ 57 ] Mr.

Polley described the pickup backing up quickly and erratically and then leaving the parking lot. He followed in his vehicle long enough to get a license plate number. He did not describe anyone reaching through the window or hanging on to the departing pickup. [ 58 ] Mr. O’Donnell said that Mr. Moore’s pickup left at a high rate of speed and as it rounded a curve the pickup’s body rolled. [ 59 ] Mr.

Moore said that he tore out of the area in a big hurry with roaring engine and peeling tires and was travelling fast as he left the area of the Confrontation but slowed down when passing through the parking lot due to other vehicles and people being present. First Responders’ Attendance [ 60 ] Mr. Zamniuk stated that as Mr. Moore was leaving the parking lot he turned to Ms. Lapointe and asked her to call 911 and then returned to assist Mr. O’Donnell who was lying on the ground holding his shoulder. [ 61 ] Mr.

Polley said he called 911 and then drove over to the injured man who he described as scraped up “pretty bad” and that his clothes were quite dirty. [ 62 ] The Emergency Medical Services paramedics arrived at 18:50 and Cst. Tippe arrived at 18:54. He observed Mr. O’Donnell receiving medical care. [ 63 ] Mr. O’Donnell said he received minor injuries to his left shoulder which still persist in certain work situations. [ 64 ] Cst. Tippe then spoke to several witnesses including Mr. Zamniuk, Mr. Polley and Ms. Lapointe. He obtained statements from Mr. Zamniuk and Mr. Polley. He described both Mr. Zamniuk and Mr.

Polley as being very excited. Cst. Tippe took no formal statements from several other people who were present, either then or subsequently. [ 65 ] At 19:20 Cst. Tippe spoke to Mr. O’Donnell at the hospital and did not observe any visible injuries on him. Mr. O’Donnell was complaining about a sore shoulder and leg. Mr. Moore’s Departure Route [ 66 ] Mr. Moore said that upon leaving the location of the Confrontation he drove directly to his sister’s residence on Harper Street. When he arrived he broke down into tears and said he was an emotional wreck. [ 67 ] Mr.

Moore said he went to his sister’s home because as his big sister she was always there for him and because the Complainants knew where he lived and he was afraid to return there. Mr. Moore said it took him several minutes to calm down. [ 68 ] Laura Moore described Mr. Moore’s appearance upon his arrival at her home as crying and being very shaken up, with a torn shirt and numerous marks and welts on his face and chest. She said it took about half an hour to calm him down enough to drive to the RCMP detachment. [ 69 ] Ms. Moore said that at no time did she see or hear about a machete and Mr.

Moore did not leave her presence from the time of his arrival at her home until they arrived at the detachment. Mr. Moore’s Dealings with the RCMP [ 70 ] Acting on Ms. Moore’s strong insistence, Mr. Moore drove with her directly to the RCMP detachment arriving at 19:25 or

earlier. Shortly after that Cst. Tippe arrived. After a few introductory comments Cst. Tippe arrested Mr. Moore and provided him with the Charter and police warnings. [ 71 ] Cst. Tippe said Mr. Moore was then escorted into the building and eventually provided a warned statement of his version of events. That statement was entered as an exhibit as part of the Crown’s case. Portions of that statement have been referred to in the chronology. In subsequent correspondence with the Crown, Cst. Tippe noted that Mr. Moore had presented as being upset and afraid at the time of the statement. [ 72 ] Cst.

Tippe also observed that Mr. Moore had a bump over his left eye and that his shirt was “very ripped”. [ 73 ] After concluding the statement with Mr. Moore, Cst. Tippe said he searched Mr. Moore’s pickup in an attempt to locate the machete but it was not found. Cst. Tippe did not question Ms. Moore about the machete or if she had seen it. [ 74 ] Mr. Moore said that Cst. Tippe asked him questions about the machete immediately upon meeting him and that Cst. Tippe searched the pickup after arresting him but before taking him into the detachment to give a statement. That version of events was confirmed by Ms.

Moore. [ 75 ] Mr. Moore pointed out to Cst. Tippe some dents on his pickup which he alleged had occurred during the Confrontation as a result of the actions of the Complainants. [ 76 ] A short time after Mr. Moore and his sister left the detachment Cst. Tippe went to his residence in College Heights and obtained the machete from him. Mr. Moore said he retrieved the machete from the closet of his bedroom. THE LAW The Criminal Code [ 77 ] The following extracts from sections of the Code must be considered in conjunction with the evidence in this case : a) 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; ( f.1 ) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. b) 35

(1) A person is not guilty of an offence if (

a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property; (

b) they believe on reasonable grounds that another person (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (

c) the act that constitutes the offence is committed for the purpose of (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property

from that person; and (

d) the act committed is reasonable in the circumstances. c) 88

(1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or anyammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence. d) 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; e) 267 (

a) Every one who, in committing an assault, (

a) carries, uses or threatens to use a weapon or an imitation thereof, or [78] Counsel acknowledged that the “new” self-defence provisions of sections 34 and 35 of the Code were in force at the time ofthese events. The Crown also acknowledged that it bears the onus to prove beyond a reasonable doubt that the self-defence provisionsare not available to Mr. Moore in this case. The Case Law [79] The Crown relied on the following case:

a) R. V. Urquhart 2013 BCPC 184 , 2013 BCPC 0184. [80] Defence counsel relied on the following cases and learned articles:

a) R. v. Gunning 2005 SCC 27,

b) R. v. Lifchus (SCC), [1997] 3 SCR 320,

c) R. v. Cinous 2002 SCC 29,

d) R. v. W.(D.) (SCC), [1991] 1 SCR 742,

e) R. v. Gill [1963] 2 All ER 688 (CCA), f) “A Preliminary Assessment of the New Self Defence and Defence of Property Provisions by Kent Roach, 2014 16 C.C.L.R. 275. SUBMISSIONS Crown [81] The Crown submissions can be summarized as follows:

a) in examining all of the evidence, the Court should note that Mr. Moore was initially as aggressive as Mr. Zamniuk in theirargument over the location of the pickup truck that was for sale. That aggression by Mr. Moore continued throughout the Confrontationand makes him a less than innocent party;

b) there is no controversy over the fact that in the beginning of the Confrontation Mr. Moore turned in his seat and pushed hispickup door into Mr. Zamniuk forcing him back into Mr. O’Donnell’s vehicle and that this occurred prior to any physical aggression byeither Mr. Zamniuk or Mr. O’Donnell;

c) Mr. O’Donnell only became involved in the Confrontation between Mr. Moore and Mr. Zamniuk when it appeared that Mr.Moore’s actions in pushing Mr. Zamniuk against his pickup might cause damage;

d) Mr. O’Donnell did not approach Mr. Moore’s pickup initially. Instead, he called him out to fight. It was only when Mr.Zamniuk yelled out “machete” that Mr. O’Donnell approached Mr. Moore’s pickup on the passenger side;

e) Mr. Zamniuk was aware of Mr. Moore’s machete, having seen it in the past, and upon seeing it in its sheath during theConfrontation after Mr. Moore had threatened to cut off his “limbs” he took action to attempt to wrest it away from Mr. Moore;

f) Mr. Moore did not attempt to leave when the Confrontation became aggressive but instead he threatened to attack Mr. Zamniuk,produced a machete in order to do so and followed that up by purposely or recklessly driving over Mr. O’Donnell.

g) Mr. O’Donnell was injured in several areas after he was struck by Mr. Moore’s pickup and some of those injuries persist to today;

h) there is little doubt that Mr. Polley had a view of only a part of the Confrontation and that he was adamant that his observations were accurate and complete even in circumstances where they disagreed with the Complainants’ evidence;

i) there is no evidence that Mr. Zamniuk and Mr. O’Donnell carried on any sort of conversation to concoct a version of events. Mr. Zamniuk was more concerned in ensuring that Mr. O’Donnell received medical attention;

j) while Cst. Tippe’s investigation could have been more thorough, particularly in failing to interview Mr. Zamniuk’s girlfriend, the Court should not speculate as to what that person’s evidence might have been;

k) Mr. Moore’s evidence was vague in many important areas even in circumstances where Defence counsel asked for specifics;

l) Mr. Moore claimed to be afraid but was he afraid for his own safety or just upset over what he had done to Mr. O’Donnell;

m) Mr. Moore acknowledged being upset and angry at various points in the Confrontation and in this mixture of emotions he was reckless with regard to into which gear he put his vehicle. Knowing he was in over his head against two people he used his pickup to even up the odds with little regard for anyone else’s safety. Defence [ 82 ] Defence counsel’s submissions can be summarized as follows:

a) if there is an air of reality the claim of self-defence it must be considered and may apply;

b) the “new” sections 34 and 35 provide for a much broader

interpretation of self-defence than the previous provisions. They can now apply to any offence (including dangerous driving) depending on the circumstances;

c) a close examination of the steps described in W. (D.) is very important in this case;

d) the Complainants had already decided to expel Mr. Moore from their social circle even before the Confrontation began;

e) there are at least four different versions of what occurred during the Confrontation in the Crown’s case alone;

f) the Complainants had Mr. Moore outnumbered and they were experienced fighters while he was not. They struck him and tore his shirt before he took any sort of retaliatory action;

g) Mr. O’Donnell never saw a machete. Mr. Zamniuk’s evidence was convoluted with regard to how Mr. Moore would have produced the machete; held on to it by its handle and waved it about while at the same time managing the gear shift and steering wheel of the pickup and being able to remain in control of it when both the Complainants had a firm grasp on the sheathed blade;

h) Mr. Moore was trapped in his vehicle and the focus of aggression by the Complainants. His only form of escape was to reverse the pickup truck far enough away to be able to proceed in a forward direction and out of the parking lot;

i) in his panic to escape Mr. Moore’s vehicle stalled, he restarted it and put it into gear thinking it was in Reverse when in fact it was in Drive;

j) Mr. O’Donnell estimated that Mr. Moore’s pickup was doing approximately 3 km/h as it was moving forward and he was backing up and then tripped falling between the front wheels as contact occurred;

k) there was one witness, Ms. Lapointe, who saw all of the events and was not involved in the Confrontation but who was not properly interviewed by the RCMP or called at the trial;

l) although the Crown alleges that Mr. Moore was in possession of a machete neither he nor his sister were cross-examined by the Crown concerning the machete or its possible locations;

m) there is no evidence that contradicts that of Mr. Moore and his sister Laura Moore, in that:

i) upon leaving the Confrontation he went to her residence on Harper, a location that corresponds to the direction of his departure from the Confrontation and opposite to that of his residence in College Heights; ii) he arrived at her residence in a highly agitated state and remained with her there, for a brief period of time; iii) he then was accompanied by her on the drive directly to the RCMP detachment; iv) they did not stop along the way to dispose of a machete and Ms. Moore saw no such weapon;

v) Cst. Tippe discovered no machete in Mr. Moore’s vehicle when he searched it at the detachment after his arrest; vi) after Mr. Moore’s release he and his sister went to his residence and a short while later Cst. Tippe arrived and Mr. Moore obtained a machete from the residence and gave it to him.

[ 83 ] Defence counsel made further submissions specifically with regard to the provisions of sections 34 and 35 of the Code as follows:

a) Mr. Moore was being assaulted by the Complainants and that his actions in response or for the purpose of defending himself were reasonable in the circumstances;

b) the force used against Mr. Moore in being assaulted while trapped in his vehicle by two individuals was imminent and ongoing. He had limited options to escape and in his attempt to do so he momentarily put his pickup into the incorrect gear;

c) Mr. Moore was the focus of the Confrontation and was being victimized by the Complainants;

d) there was no machete present and Mr. Moore did not threaten the use of a machete. He did use his pickup in an attempt to escape the ongoing assault by the Complainants;

e) Mr. Zamniuk and Mr. O’Donnell were experienced in fighting and Mr. Moore was not. There were two of them and they were calling him out to fight;

f) Mr. Moore was unaware that the Complainants wanted him out of their social circle and was surprised by their comments in that regard given that he believed them to be friends;

g) Mr. Moore was trapped in his vehicle and being assaulted by being struck and having his shirt ripped. In his attempt to escape, he did have some contact, albeit minor, with Mr. O’Donnell and stopped immediately upon Mr. Zamniuk calling out. He immediately backed up and escaped the scene;

h) Mr. Moore’s actions were nothing more than an attempt to escape an unlawful assault. WITNESSES’ EVIDENCE Introduction [ 84 ] Given the nature of the evidence presented, the Court must consider the credibility and reliability of each of the witnesses. [ 85 ] In doing so, courts have recognized a number of factors as useful, including:

a) the witness' ability to observe the events, record them in memory, recall and describe them accurately;

b) the external consistency of the evidence. Is the testimony consistent with other, independent evidence, which is accepted?

c) the internal consistency of the evidence. Does the witness' evidence change during direct examination and cross-examination?

d) the existence of prior inconsistent statements or previous occasions on which the witness has been untruthful;

e) the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"?

f) motives to lie or mislead the court: bias, prejudice, or advantage. To consider the obvious possible motive of every accused person to avoid conviction would place an accused at an unfair disadvantage. As a result, I do not consider that possible motive when assessing an accused's testimony;

h) the attitude and demeanour of the witness. Are they evasive or forthcoming, belligerent, co-operative, defensive or neutral? In assessing demeanour a judge should consider all possible explanations for the witness' attitude, and be sensitive to individual and cultural factors, which may affect demeanour. Because of the danger of misinterpreting demeanour, I do not rely on this factor alone. [ 86 ] In the decision of R. v. W. (D.) the Supreme Court of Canada instructed trial courts to consider the issue of credibility as follows:

a) if I believe the evidence of the accused I must acquit;

b) if I do not believe the evidence of the accused but I am left in a reasonable doubt by it I must acquit; and

c) I do not believe and I am not left in a reasonable doubt by the evidence of the accused I must consider whether on the basis of all evidence I do accept that I’m convinced beyond a reasonable doubt about the guilt of the accused. [ 87 ] It is not necessary to rigidly follow the three part test so long as it is clear that the whole of the evidence has been considered in determining whether or not the accused is guilty of one or more of the Counts. [ 88 ] The Court is also entitled to accept or reject none, some, or all of the evidence of each individual witness.

Furthermore, the evidence from one witness may be applied to the consideration of several Counts on the Information and the evidence from several

witnesses may be applied to the consideration of each individual Count on the Information. All of the evidence must be considered to arrive at any particular verdict on each specific count. [ 89 ] I considered all these factors in assessing the testimony of each witness and reached the following conclusions. General Comments Ashley Lapointe [ 90 ] Ms. Lapointe was not called as a witness even though it is common ground that she was present throughout the Confrontation.

However, I do not accept Defence counsel's suggestion that the Crown's failure to call her should cause the Court to draw any inferences. [ 91 ] If Ms. Lapointe’s absence poses any problems for the Crown's case it is because she gave no evidence at all and that is not something the Court should be speculating upon with regard to what her evidence might have been. Cst. Cory Tippe [ 92 ] Constable Tippe’s evidence provided little assistance to the Court in determining what occurred during the Confrontation. His investigation was, at best, cursory and at worst, cavalier. The statements he took from Mr. Polley, Mr.

Zamniuk and Mr. O'Donnell were of little assistance. His failure to more thoroughly interview others who may have observed the Confrontation made the task of properly considering what occurred much more difficult for the Crown, the Defence and the Court. Craig Polley [ 93 ] Mr. Polley's unwavering view about what he saw even when it was at odds with the clear evidence from other witnesses diminished the value of his evidence. He also insisted on providing his editorial view of the outcome of the matter rather than simply recounting what he observed.

A substantial portion of his evidence did generally accord with the evidence of at least some of the other witnesses and in some circumstances he was never confronted with the evidence of the other witnesses. Laura Moore [ 94 ] There is a very little reason to disbelieve anything in Ms. Moore’s evidence. She had good recall, provided detailed and descriptive answers and was not challenged in any substantive way on her evidence in general and, in particular, on her evidence that she did not see a machete at any time she was with Mr. Moore. Patrick O’Donnell [ 95 ] Mr.

O'Donnell was generally fair, frank and quite even-handed in his evidence. He gave concise descriptions of his actions and those of Mr. Zamniuk. He was prepared to accept that there were some frailties in his evidence with regard to how some of the events unfolded and his direct knowledge of them. Keith Zamniuk [ 96 ] Mr. Zamniuk’s evidence was not consistent internally and, in many instances, inconsistent with the evidence of either Mr. Moore or the other Crown witnesses. There were many examples where his testimony was exaggerated when compared to the rest of the evidence.

In some cases he gave evidence about events which he said occurred but which were either not referred to at all by other witnesses or described in a much less flamboyant manner by the other witnesses. [ 97 ] Some examples of the inconsistency between Mr. Zamniuk’s evidence and those of other witnesses include:

a) he described his mood during the argument as being irritated where as Mr. O'Donnell said he was like a “teapot ready to explode";

b) he said he saw the machete when Mr. Moore's pickup door was open but in cross-examination he said at that time the pickup door was closed;

c) he denied striking Mr. Moore's pickup but Mr. O'Donnell said he kicked the door;

d) he said that when Mr. O'Donnell was struck by Mr. Moore's pickup his head ended up resting under the left wheel in a position to be run over where as Mr. O'Donnell described only his body being under the center of the pickup because he had grabbed onto the bumper;

e) he described Mr. Moore's pickup engine as roaring and that the vehicle launched forward where as Mr. O'Donnell described the pickup as rolling forward at approximately 3 km/h;

f) he said as Mr. Moore was leaving he jumped into the driver's window of the pickup to try to grab the keys but fell out as the pickup accelerated. This event was not described by either Mr. Moore or any of the Crown witnesses, and particularly Mr. Polley who was following behind Mr. Moore's pickup as it departed;

h) he said that when Mr. Moore's pickup left the parking it went up on two wheels where Mr. O'Donnell described the pickup was only swaying.

[ 98 ] Given these examples I am unable to place much reliance on Mr. Zamniuk’s evidence unless it is supported by the evidence of other witnesses. Luke Moore [ 99 ] Mr. Moore's evidence on how he came to strike Mr. O'Donnell with his pickup contradicted what he told Cst. Tippe in his statement after he was arrested. In addition, there were some other areas of his evidence where he seemed to have difficulty in providing clear and straightforward answers to what appeared to be straightforward questions. There were instances where Mr.

Moore clearly stated that during the Confrontation he was so agitated and upset that he did not have an absolutely clear recall of why he acted in a certain fashion at a certain point in time. FINDINGS OF FACT [ 100 ] Based on the evidence presented, I make the following findings of fact in the same chronological order as the evidence. Prior Events [ 101 ] The Complainants were part of the social group that had concluded that they no longer wanted to associate with Mr. Moore. That resulted in them being at least dismissive of him or having some animus towards him. None of this was known to Mr.

Moore before he arrived at the scene of the Confrontation. Location [ 102 ] The Confrontation occurred around 6:30 pm on July 13, 2013. There were a number of vehicles parked in the large parking lot and customers were coming and going from at least two businesses that were open. The Argument [ 103 ] The argument between Mr. Moore and Mr. Zamniuk erupted over a disagreement concerning the location of a pickup truck that was for sale. That argument became heated and both Mr. Moore and Mr. Zamniuk became angered by the disparaging comments of the other. Mr. Zamniuk was standing between Mr. Moore's and Mr.

O'Donnell's pickups during the argument. [ 104 ] Mr. Zamniuk reached into Mr. Moore's open pickup window and slapped him several times about the face. That further enraged Mr. Moore although he did not feel, at that point in time, to be in any danger because he believed that things would calm down. However, he retaliated in two ways:

a) he uttered a threat to cut off Mr. Zamniuk’s limbs, and

b) he opened his driver’s door and leverage the open door with his legs to pin Mr. Zamniuk between the two pickups, while at the same time contacting Mr. O'Donnell's pickup with the door. [ 105 ] There is no air of reality to a claim that Mr. Moore believed at that time he was endangered and needed to act in self-defence. He intended his comments to be threatening and he intended to strike Mr. Zamniuk with the door thereby assaulting him. [ 106 ] Mr. O'Donnell became angered because the contact between the two vehicles so he reached through his driver's window and forced Mr.

Moore's driver’s door closed and then he got out of his pickup. He then moved from between the two pickups towards the front of Mr. Moore's pickup. [ 107 ] Each of Mr. O'Donnell and Mr. Zamniuk called Mr. Moore out to fight. Neither of them indicated that such a fight would be a one on one affair. Both Mr. O’Donnell and Mr. Zamniuk were experienced with fighting, violence and weapons. Mr. Moore was not experienced in such activities. [ 108 ] Mr. Zamniuk was extremely angry, as described by Mr. O'Donnell he was a "teapot ready to explode". Mr. Zamniuk then opened Mr. Moore's driver's door while Mr.

O'Donnell moved around and opened the passenger door of Mr. Moore's pickup and partially entered the pickup. At that point Mr. Moore had no available means of egress. The Machete [ 109 ] Cst. Tippe obtained the machete presented in evidence from Mr. Moore at his residence shortly after he had been arrested and released. [ 110 ] Laura Moore, whose evidence was not confronted or contradicted on this point, stated that she saw no machete from the time Mr. Moore arrived at her Harper Street address and through the time she was with him. She went with Mr.

Moore from her residence to the RCMP detachment and then to his residence. [ 111 ] She also said that she and Mr. Moore did not stop en route to the detachment and that there were no discussions about a machete until Cst. Tippe asked about it at the detachment.

[ 112 ] Mr. Moore said that there was no machete in his pickup during the Confrontation although one might suspect he had it in his possession to back up his threatening words to cut off Mr. Zamniuk’s limbs. He was also resolute concerning the reason why he did not carry a machete in his truck anymore; because it could cause injury in an accident. [ 113 ] Cst. Tippe conducted the search of Mr. Moore’s pickup soon after it arrived at the detachment and found no machete. [ 114 ] Given that evidence, in order for me to conclude that the machete seized by Cst.

Tippe was the same one alleged to be at the scene of the Confrontation, I would have to find that Mr. Moore hid the machete between the time he left the Confrontation and arrived at the RCMP detachment and then returned to the hiding location afterwards to take it to his residence. [ 115 ] In order to do that I would have to conclude that both Mr. Moore and Laura Moore were either mistaken or deliberately misleading the Court. In light of the fact that they were never confronted by the Crown with either of those possibilities, I am unable to draw that conclusion. [ 116 ] Although Mr.

O’Donnell initially said he saw the machete, he later stated both while under cross-examination and an answer to the Court’s questions that although he heard Mr. Zamniuk call out the word machete he never actually saw one and did not know what he was grabbing when he entered the passenger side of Mr. Moore’s pick up. [ 117 ] That leaves Mr. Zamniuk’s evidence on the point. He said he saw the machete being retrieved by Mr. Moore from a pocket in the driver’s door of the pickup and he called out “machete”. He then wrestled with Mr. Moore and Mr.

O’Donnell to obtain custody of the machete but he was unable to do so because Mr. Moore’s pick up began to back up. [ 118 ] I have already described the challenges in accepting Mr. Zamniuk’s evidence. I am unable to conclude whether or not Mr. Zamniuk called out the word “machete” but I do conclude that Mr. Moore was not in possession of a machete at the time of the Confrontation and he did not attack anyone, and specifically Mr. O’Donnell, with it. Mr. Moore Backing Up [ 119 ] With both Mr. Zamniuk and Mr. O'Donnell reaching into his pickup, Mr. Moore's only avenue of escape was to try to drive away.

He could not drive forward because of the embankment immediately in front of him. [ 120 ] Mr. Moore started his pickup and attempted to back up. It went a short distance but then stopped because it stalled. Mr. Zamniuk and Mr. O'Donnell got away from the open pickup doors as it backed up with Mr. Zamniuk moving towards Mr. O'Donnell's pickup while Mr. O'Donnell started to cross in front of Mr. Moore's pickup. [ 121 ] Mr. Moore then restarted his pickup and in doing so revved up the engine and then put it into gear. What gear he intended to use is crucial to the outcome of the case. Mr.

Moore said the pickup was in Neutral and that by mistake, and in his agitated state, he put it into Drive instead of Reverse. He was not asked at any time to explain why he didn't put the pickup into Park before restarting it. Mr. Moore Driving Forward [ 122 ] There is no doubt that while Mr. Moore was driving forward his pickup came into contact with Mr. O’Donnell either while Mr. O’Donnell was trying to avoid the contact and fell underneath the vehicle or that he was struck by the pickup and fell underneath. [ 123 ] I accept Mr. O’Donnell’s evidence on the issue of the speed of Mr.

Moore’s pick up, that he grabbed the bumper to keep from going completely under the pickup and the location of his body was under the engine housing and between the front wheels when the pickup stopped. I also accept that Mr. O’Donnell’s injuries, although not catastrophic, were sufficient to be described as bodily harm. [ 124 ] If I conclude that Mr. Moore acted deliberately in driving forward either with the intent to strike Mr.

O’Donnell, or was reckless to that likelihood, the Crown has proven beyond a reasonable doubt that the self-defence provisions of sections 34 and 35 of the Code would not apply and that Mr. Moore would be guilty of assault with a weapon; the pickup. [ 125 ] As described by Dhillon PCJ in Urquhart there are three essential elements to the self-defence provisions:

a) A reasonable perception of force or a threat of force against the accused or another person: s. 34(1)(a);

b) A defensive purpose for the accused’s act: s. 34(1)(b); and

c) An objective determination of the reasonableness of the accused’s act: s. 34(1)(

c) applying the factors under s. 34(2). [ 126 ] I accept that Mr. Moore had been threatened with assault by the Complainants and they were both experienced with violence. In addition, I accept that just before backing up his pickup Mr. Moore was in a struggle with the Complainants so the first element is met. [ 127 ] The second element requires a “defensive purpose”. That would suggest, based on Defence counsel’s submissions, that Mr. Moore felt it necessary to put the pickup into Drive and use it as a shield to repel his attackers and that in doing so Mr.

O’Donnell was struck. [ 128 ] The third element would then require me to apply the nine factors in s. 34(2) to arrive at the conclusion that driving forward and using the pickup as a shield and in doing so striking Mr. O’Donnell was reasonable in the circumstances. [ 129 ] By the time the pickup was moving forward both the Complainants were no longer in contact with Mr. Moore and they would not have impeded him in reversing the pickup away from the Confrontation and departing.

[ 130 ] If I accepted either Mr. Zamniuk’s evidence that Mr. Moore looked directly at Mr. O’Donnell and launched the pickup forward and directly at Mr. O’Donnell or if I accepted Mr. Polley’s evidence that the pickup, with engine roaring and tires squealing, drove over Mr. O’Donnell and travelled for 20 feet past that point then the Crown would have convinced me beyond a reasonable doubt that Mr. Moore’s actions were not objectively reasonable in the circumstances and the self-defence provisions would not be available to him. [ 131 ] The provisions of s. 34(2) clearly applied to Mr.

Moore’s actions when he was initially backing up to get away from the Complainants who were attacking him from both sides of his pickup. However, despite Defence counsel’s able submissions on the issue, when Mr. Moore drove the pickup forward he was not acting in self-defence. That is established by his evidence. [ 132 ] Mr. Moore did not say that he engaged Drive and cause the pickup to go forward to protect him or repel Mr. Zamniuk and Mr. O’Donnell. He said that he put the pickup in the Drive in error meaning to put it into Reverse. [ 133 ] If I accept that evidence and combine it with the evidence of Mr.

O’Donnell, Mr. Moore causing the pickup to go forward by accidentally putting it into Drive is not a case of self-defence at all - it is a case of unintended accident. [ 134 ] Despite what Mr. Moore told Cst. Tippe in his statement which contradicted his sworn evidence I accept that Mr. Moore had no intention to strike and/or injure Mr. O’Donnell. I conclude that he was attempting to flee the Confrontation where he had been threatened and assaulted and in his panic engaged the wrong gear. Mr. Moore’s Departure [ 135 ] Mr. Moore left the area with his engine roaring and tires peeling, going as much as 60 km/h.

He was driving much faster than normal parking lot speed and normal traffic flow particularly given the other vehicles and pedestrians in the area including some for which Mr. Moore had to abruptly brake to avoid a collision. When he made the turn from the parking lot to the street his pickup leaned due to the high speed. [ 136 ] It is clear that actus reus for dangerous driving was present. The mens rea for dangerous driving is a modified objective test. The Court must consider if Mr. Moore's conduct and driving was reasonable considering the situation and his perception of the situation. [ 137 ] Mr.

Moore was driving at a high rate of speed in a parking lot where other vehicles and pedestrians both could be expected and in fact were present. I accept that Mr. Moore was frightened and upset by what had just occurred at the Confrontation. However, the parking lot was of such a size that high-speed driving for any more than a short distance from the Confrontation was all that was necessary. [ 138 ] Furthermore, there were two businesses open at the time and if Mr. Moore was fearful for his safety he could have gone in to either of those businesses to seek assistance. [ 139 ] Mr.

Moore's driving as he departed the Confrontation was not reasonable in the circumstances and was a marked departure from the standard of care a reasonable person would exercise in his situation. Although I agree with Defence counsel's submissions that the provisions of

section 34 of the Code do not prohibit the argument that what would be otherwise dangerous driving may fall within the terms of self-defence it is not made out in this case. Mr. Moore was driving dangerously. First Responders’ Attendance [ 140 ] Mr. O'Donnell was treated at the scene by paramedics and later transported to the hospital for further treatment. He did receive some injuries to his left shoulder which persisted for a long enough period of time to amount to bodily harm. Mr. Moore’s Departure Route [ 141 ] Mr.

Moore drove directly from the site of the Confrontation to his sister Laura Moore's residence on Harper Street which was in the opposite direction of his own residence. [ 142 ] When he arrived at his sister's residence he was agitated, had injuries to his face and chest and his shirt was badly torn. It took him some time to calm down enough to be able to drive with his sister to the RCMP detachment to report the incident. Mr. Moore’s Dealings with the RCMP [ 143 ] When Mr. Moore arrived at the RCMP detachment he had dealings with Cst. Tippe who immediately asked him about the machete and then searched Mr.

Moore's pickup but found no such weapon. Mr. Moore pointed out damage to his pickup. Mr. Moore was arrested and provided a statement. [ 144 ] After his release from custody Mr. Moore drove to his residence with Ms. Moore and soon after Cst. Tippe arrived and asked for Mr. Moore's machete which he produced from his basement bedroom and handed over to the constable. DECISION [ 145 ] Based on the evidence presented, and my findings of fact I have no doubt that Mr. Moore is guilty on the following counts:

a) Count 1: assault upon Keith Zamniuk using a weapon, to wit: a motor vehicle, contrary to

section 267 (

a) of the Criminal Code ;

b) Count 4: dangerous operation of a motor vehicle, contrary to section 249(1) (

a) of the Code ;

c) Count 5: uttering a threat to cause death or bodily harm to Mr. Zamniuk, contrary to

section 264.1(1) (

a) of the Code ;

[ 146 ] I do have a reasonable doubt and, as such, find Mr. Moore not guilty on the following counts:

a) Count 2: assault upon Mr. O’Donnell using a weapon, to wit: a motor vehicle, contrary to

section 267 (

a) of the Code ;

b) Count 3: assault upon Mr. O’Donnell using a weapon, to wit: a machete, contrary to

section 267 (

a) of the Code ;

c) Count 6: uttering a threat to cause death or bodily harm to Mr. O’Donnell contrary to

section 264.1(1) (

a) of the Code .

d) Count 7: possession of a weapon, a machete, dangerous to the public peace, contrary to section 88(1) of the Code . _________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC