R. v. W., 2023 NBPC 4

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Trial Dates: December 8th and 14th, 2022 Decision Date: March 22nd, 2023Docket No.: 158834 Neutral Citation: 2023NBPC04 HIS MAJESTY THE KING - and - LEROY SAVAGE Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: Non-substantive editorial/grammatical changes were made to this decision following it being delivered orally on March 22nd, 2023. APPEARANCES: Jean-Guy Savoie, on behalf of His Majesty The KingTimothy Murphy, on behalf of Mr. Savage DELIVERED ORALLY INTRODUCTION 1. Leroy Savage, (“Mr.

Savage”) is charged with the following single count in an Information that was sworn to before this Court on October 18th, 2021: Leroy SAVAGE on or about July 01, 2021 at Miramichi, New Brunswick did, in committing an assault on Jeffrey Doyle, wound the saidJeffrey Doyle, and thereby commit an aggravated assault, contrary to Section 268(1) of the Criminal Code and amendments thereto. 2.

The evidence before this Court is highly divergent on several material points and is infused with a myriad of credibility andreliability issues that must be untangled pursuant to the framework mandated by the Supreme Court of Canada in its leading decision inR. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 and, further, in accordance with appellate guidance as it pertains to theassessment of credibility and reliability. Ultimately, the outcome of this proceeding turns on these considerations. THE EVIDENCE

3. The Crown called the following witnesses at trial: (

a) Corporal Christopher Hogan (“Corporal Hogan”) of the Miramichi Police Force (the “MPF”); (

b) Constable Kerry Gill (“Constable Gill”) of the MPF, and (

c) The complainant, Jeffrey Doyle (“Mr. Doyle”); 4. The Defence called the following witnesses at trial: (

a) Jessie Lynch (“Ms. Lynch”), and (

b) The accused, Mr. Savage. THE ISSUES 5. At issue in this proceeding is whether the Crown has satisfied this Court of Mr. Savage’s guilt beyond a reasonable doubt as itpertains to each of the essential elements of the offence with which he is charged. THE ESSENTIAL ELEMENTS OF THE OFFENCE 6. Subsection 268(1) of the Criminal Code provides that an individual “commits an aggravated assault who wounds, maims,disfigures or endangers the life of the complainant”. 7. The Crown alleges in this case that Mr. Savage wounded Mr. Doyle. In R. v.

Pootlass (2019), 2019 BCCA 96 , 373C.C.C. (3d) 433 (B.C.C.A.), the definition of “wound”, as used in Subsection 268(1) of the Criminal Code, was found to entail a break inthe continuity of both the epidermal and dermal layers of the skin that constitutes serious bodily harm. The assault in R. v. Pootlasscaused a cut on the complainant’s forehead that required several stitches and another cut on the top of his head that required a number ofstaples. Given these injuries, the threshold element of “wounding” was found to have been made out by the Crown in that case. 8. For this Court to find Mr.

Savage guilty under Section 268(1) of the Criminal Code, the Crown must prove both the actus reus andmens rea components of the offence beyond a reasonable doubt. 9. The mens rea of this offence requires objective foresight of bodily harm but does not require proof of an intention to maim, woundor disfigure (see: R v. Godin, (SCC), [1994] 2 S.C.R. 484 (S.C.C.)). 10. If this Court is satisfied of Mr. Savage’s guilt beyond a reasonable doubt regarding each essential element of the offence, this Courtmust find Mr. Savage guilty. 11.

The Crown must prove each essential element of the offence beyond a reasonable doubt. Proof of probable or likely guilt is notenough. 12. Mr. Savage is presumed innocent respecting the single count that brings him before this Court. He has no burden of proof as itrelates to any of the essential elements of the offence. THE EVIDENCE Corporal Hogan’s Testimony 13. Corporal Hogan is a general duty police officer with the MPF. On the evening of July 1st, 2021, he was on duty and dispatched tothe Miramichi Regional Hospital (the “MRH”) in relation to a report of an alleged assault against Mr.

Doyle that was said to haveoccurred earlier that same evening at 35 McCarthy Street in Miramichi (the “Doyle Residence”). He testified that he arrived at the MRH“within minutes” of being dispatched. 14. On arrival at MRH, Corporal Hogan encountered Mr. Doyle awaiting treatment for certain visible injuries. He testified he hadencountered Mr. Doyle in the past on approximately five occasions but never in the context of Mr. Doyle being arrested. Beyond that, hecould not recall any details of his past interactions with Mr. Doyle. Corporal Hogan observed a gash on Mr.

Doyle’s lower lip, which hedescribed as appearing to be a “hole right through it” together with a laceration across Mr. Doyle’s chin. Both wounds were bloody at thetime. Moreover, Corporal Hogan observed a dark bruise on Mr. Doyle’s chest which was also said to be the result of the alleged assault.A booklet of ten photographs was marked as Exhibit C-1 at trial. Corporal Hogan’s testimony confirmed that: (1) he took the first five photographs; (2) these photographs were of Mr.

Doyle and were taken on the evening of July 1st, 2021, and (3) they fairly andaccurately depict what he observed at the MRH that evening. 15. It was Corporal Hogan’s evidence that Mr. Doyle was “worked up” when he arrived at the MRH. Based on his law enforcementexperience, he quickly concluded that Mr. Doyle was “intoxicated by alcohol”. This conclusion was informed by various observations

made by Corporal Hogan, including that Mr. Doyle was “unsteady on his feet” and “stumbled when he got up”. On cross-examination, Corporal Hogan elaborated on these observations, noting that when he first entered the room where Mr. Doyle was awaiting treatment, which measured approximately 10’ x 10’, he immediately encountered what he described as a “moderate smell” of alcohol emanating from him. When Mr. Doyle began speaking, the odour of alcohol coming from him intensified. At the time of this exchange between Corporal Hogan and Mr. Doyle, a distance of about five feet separated them.

Corporal Hogan noted on re-direct that Mr. Doyle’s lack of sure-footedness also manifested itself in “difficulty walking” and “favouring his left side”, which he acknowledged could have been the result of intoxication, attributable to his injuries, or a combination thereof. 16 . Mr. Doyle reported to Corporal Hogan that his visible physical injuries, as earlier described, had all been caused by Mr. Savage. Arrangements were made to take a KGB statement from Mr. Doyle on the following day and Corporal Hogan later reached out to the RCMP’s Richibucto detachment to advise that Mr.

Savage was arrestable for assault given he was believed to live in that area. 17 . As for why arrangements to take a KGB statement from Mr. Doyle were deferred to the following evening, Corporal Hogan testified on cross-examination that the reasons were two-fold:

(1) Mr. Doyle, in his opinion, was “too intoxicated” to give a KGB statement on the evening of July 1 st , 2021, and (2) he “required medical attention”. Asked on cross-examination whether he pursued with Mr. Doyle specific details about his consumption of alcohol and/or drugs on July 1 st , 2021 leading up to his attendance at the MRH, Corporal Hogan testified that these were not questions he raised. Corporal Hogan was of the view that approximately 30 minutes had elapsed between the time of the alleged assault and the time he encountered Mr.

Doyle at the MRH, but he did not state the foundation for this belief in his testimony. Constable Gill’s Testimony 18 . At the same time Corporal Hogan was dispatched to the MRH on the evening of July 1 st , 2021 to follow up with Mr. Doyle, Constable Gill, another general duty police officer with the MPF, was sent to the scene of the alleged assault, being the Doyle Residence, where he met with Mr. Doyle’s brother, Gary.

Gary Doyle owns the Doyle Residence and Constable Gill noted in his testimony that Gary Doyle advised him that he transported his brother to the MRH at an indeterminate time following the alleged assault. Gary Doyle did not testify at trial. Constable Gill testified that he arrived at the Doyle Residence “within ten minutes” of receiving the call from dispatch. Referring to his notes, Constable Gill confirmed that he had been dispatched to attend the Doyle Residence at approximately 8:40 pm on July 1 st , 2021 and arrived closer to 9:00 pm. 19 . On July 2 nd , 2021 at approximately 9:00 pm, Mr.

Doyle attended the MPF Headquarters to provide a KGB statement to Constable Gill, who had not seen or met with Mr. Doyle on the previous evening. Constable Gill observed that Mr. Doyle was “stitched up well” and, at that time, he took the remaining five photographs of Mr. Doyle comprising Exhibit C-1, which he testified fairly and accurately depict what he saw on the evening of July 2 nd , 2021. At this time, Mr. Savage had not been arrested. 20 . On cross-examination, Constable Gill acknowledged that he had had “two or three past encounters” with Mr. Doyle “over a period of three or four years”.

On these occasions, Mr. Doyle was “sometimes intoxicated” and was dealt with by Constable Gill in that context. Asked whether he had any family connection with Mr. Doyle or whether he had ever arrested Mr. Doyle in the past, Constable Gill responded “no” to both questions. Mr. Doyle did not have a vehicle of his own at the time of the alleged assault. He advised Constable Gill during his KGB statement that he had been relying on transportation from “his boss” to get to and from work every day, including on the date in question. In his KGB statement, Mr.

Doyle advised Constable Gill that he arrived at the Doyle Residence “at 7:00 pm” on the evening of July 1 st , 2021 and the alleged assault unfolded very rapidly thereafter. Based on this information, Constable Gill concluded that a period of approximately one hour and forty minutes had elapsed between the time of the alleged assault and when Corporal Hogan encountered Mr. Doyle at the MRH, perhaps a bit longer. Mr. Doyle’s Testimony 21 . Mr. Doyle is the complainant in this proceeding. He earns a living “doing odd jobs”. He lived at the Doyle Residence with his brother, Gary, until August or September of 2022.

He was living at the Doyle Residence on July 1 st , 2021. Mr. Doyle testified that he moved into the Doyle Residence in October or November of 2019 but then paused and seemed unsure of this answer, noting that it might have been in 2018. Imprecision, uncertainty and inconsistencies, often of a material nature, became a recurrent feature of Mr. Doyle’s testimony on both direct and cross-examination. Additional demonstrated discrepancies of a material nature came to light at trial between Mr. Doyle’s KGB statement of July 2 nd , 2021 and his trial testimony. 22 . Mr.

Doyle testified he worked all day at a building being restored in Miramichi by a father and son from Albania named George and Alba King (the latter shall be referred to as “Mr. King”) on the date of the alleged assault. He described Mr. King as “my boss”. According to Mr. Doyle, Mr. King returned to Albania in November or December of 2021. Mr. Doyle recalls that he got off work “well after 5:00 pm for sure” on the date of the alleged assault and estimates that he returned to the Doyle Residence “between 6:00 pm and 8:00 pm…I think”. It ought to be noted that Mr.

Doyle testified that he originally thought the alleged assault had taken place on July 15 th , 2021, not July 1 st , 2021. 23 . Moreover, in his KGB statement given to Constable Gill on the evening of July 2 nd , 2021, several details of which were explored with him at trial, Mr. Doyle said he “got home at 7:00 pm” only to testify at trial that this had been “a guess or estimate”. On cross- examination, Mr.

Doyle testified that: (1) he was intoxicated by alcohol when he gave his KGB statement on the evening of July 2 nd 2021 to such a degree that he shouldn’t have been providing it in that condition, (2) he “didn’t want to give it” that evening because he was drunk, and (3) his state of impairment at the time he gave his KGB statement meant he was “confused” when he provided same. The details of these admissions were further explored on cross-examination with Mr.

Doyle explaining to the Court that he couldn’t recall how much alcohol he had consumed on July 2 nd , 2021 prior to giving his KGB statement but that he had played cards that morning and had been “drinking all evening” with friends and “I was drinking when I went to the police” on the evening of July 2 nd , 2021 to give the KGB statement.

24 . In his KGB statement, Mr. Doyle indicated that Mr. Savage “had used something sharp” to harm him during the alleged assault, which would suggest a conscious and perhaps even a nuanced recollection of the altercation. On cross-examination, however, he resiled from that recollection. Indeed, it was his evidence at trial that he recalled nothing about what occurred after exiting Mr. King’s vehicle, surmising only that Mr. Savage “rung my bell pretty good”. 25 . As earlier noted, Mr. Doyle does not own or drive a vehicle and was dependent on Mr.

King for transportation to and from work while in his employ over the course of several weeks during the summer of 2021. When speaking of Mr. King on cross-examination, he admitted to some uncertainty at one point that “Alba King” was indeed his correct name. On the date of the alleged assault, Mr. Doyle testified that Mr. King’s father, George, offered him “a drink of Albanian whisky” in the driveway of the worksite after work had concluded for the day and before he was driven home by Mr. King. He estimates it was a single ounce serving but “it might’ve been a double”. On both direct and cross-examination, Mr.

Doyle was adamant that this was the only alcohol he consumed on July 1 st , 2021 in the period leading up to the alleged assault and his subsequent return from the MRH after having been stitched up. He testified on cross- examination that “I might have had a drink after I got home from the hospital” but this, of course, would have been after Corporal Hogan met with him.

When asked on cross-examination about whether he was intoxicated by alcohol at the time of the alleged assault and/or while at MRH, he indicated that Corporal Hogan was “wrong” in forming the opinion that he was drunk based on his observations at the MRH on the evening of July 1 st , 2021. 26 . Mr. Doyle testified that he has known Mr. Savage “since Leroy was young…for over 20 years”. Mr. Savage used to be married to his next-door neighbour’s daughter, Ms. Lynch. They have two children together. Ms. Lynch resides with her father at 33 McCarthy Street in Miramichi (the “Lynch Residence”) and Mr. Doyle saw Mr.

Savage coming and going from time to time. Mr. Doyle described having a “good relationship” with Mr. Savage up until about six or seven months before the alleged assault took place. He testified that about six or seven months before the alleged assault, Mr. Savage had “come into my bedroom” inside the Doyle Residence and “attacked me when I was sleeping”. This, it was believed by Mr. Doyle, was provoked by accusations Ms. Lynch had made a short time before that Mr. Doyle had pulled Ms. Lynch’s panties down when the two of them were drinking together. 27 . Mr.

Doyle testified that he is 53 years-old, 5’9” and weighs approximately 145lbs. Asked to describe Mr. Savage, Mr. Doyle explained that “he is 33 or 34”, a “big man, bigger than me…outweighs me by at least 80lbs”. This assessment went unchallenged. 28 . Mr. Doyle testified that Mr. King dropped him off at the Doyle Residence on the evening in question after work and was a witness to the entire altercation. Mr. Savage arrived in the driveway of the Lynch Residence “a minute or two later”, at which time Mr. Doyle was still seated in Mr. King’s vehicle in the driveway of the Doyle Residence. According to Mr.

Doyle’s testimony, Mr. Savage had just picked up Ms. Lynch at the Lynch Residence, then pulled into the driveway of the Doyle Residence and immediately began hurling insults at him, calling Mr. Doyle a “child molester…basically, anything I wasn’t he was calling me”. It was Mr. Doyle’s evidence that he did not yell at Mr. Savage first, or otherwise engage him. He believed Mr. Savage was trying to initiate an altercation with him. 29 . According to Mr. Doyle’s evidence, Mr. Savage pulled closer into the driveway of the Doyle Residence with Ms. Lynch in his front passenger seat, at which time Mr.

Doyle told him to “get the fuck out of my yard”. Mr. Doyle further testified that Mr. Savage continued to insult him and made no attempts to leave the driveway of the Doyle Residence after again being told to leave. When asked to describe what he remembers about the alleged assault, Mr. Doyle noted that Mr. Savage “got out of the car and something happened” but he then acknowledged “I don’t know how it all went”. Mr. Doyle further testified “I got out of the vehicle and got struck or whatever happened”. Mr. Doyle was asked on cross-examination about whether he first physically approached Mr.

Savage’s vehicle while Mr. Savage remained seated inside it, to which he responded “I don’t know”. A similarly illusory answer was given in response to a question on cross-examination about whether Mr. Doyle struck Mr. Savage before Mr. Savage struck him. 30 . Mr. Doyle testified that he thought the alleged assault happened “out in front of the truck” and that he “didn’t think anyone other than me and Mr. Savage were involved…I don’t think Alba got involved”. Asked about who else was present during this altercation, Mr. Doyle noted that Ms. Lynch was seated in Mr. Savage’s vehicle at the time while he, Mr.

Savage and Mr. King (who also remained seated in his vehicle throughout) were the only other people present. Mr. King remained seated in his truck during the entire altercation according to Mr. Doyle but was said to have assisted Mr. Doyle into the Doyle Residence immediately following the alleged assault before leaving shortly thereafter. This was believed to have occurred not long after Mr. Savage had left the driveway of the Doyle Residence. 31 . Delving into the details of the alleged assault a bit further, Mr. Doyle testified that he got out of Mr. King’s vehicle and told Mr.

Savage to leave the driveway of the Doyle Residence “more than once” but “I don’t know where we got into it”, referring to their physical altercation. At this point, Mr. King’s vehicle was backed into the driveway of the Doyle Residence and Mr. Savage’s vehicle was nosed in with only a few feet separating them. The configuration of the two vehicles was such that their respective driver’s sides almost immediately faced each other. Mr. Doyle testified that “I was not armed” and further noted that “I can’t remember if Mr. Savage had a weapon”.

This was entirely at odds with his KGB statement, in which he stated “I could feel something like a knife” when he was struck by Mr. Savage. Mr. Doyle later responded “not that I am aware of” to a question about whether he (Mr. Doyle) had any weapons on his person that day and was later adamant that he (Mr. Doyle) was not carrying a knife. Mr. Doyle was unequivocal in stating that he had no injuries in the lead up to the alleged assault and that the injuries observed on his person, as depicted in Exhibit C-1, were all “absolutely” caused by Mr.

Savage, took a long time to heal and left him in considerable pain. 32 . In his KGB statement, Mr. Doyle stated that Mr. Savage had been yelling at him to get out of Mr. King’s vehicle; however, at trial he testified he was “not sure” about this. He then offered during his testimony on cross-examination the seemingly vivid recollection that Mr. Savage said to him while he was still seated in Mr. King’s vehicle “get out of your car you little bitch and I’ll give you another one like I did the last time”. Asked on cross-examination whether he could recall having tried to hit Mr. Savage, Mr.

Doyle responded “I imagine” and later replied “I don’t know”. Questioned about his remark in the KGB statement that “we both started swinging punches at each other”, Mr. Doyle acknowledged on cross-examination that he “doesn’t recall what happened”. 33 . Counsel for Mr. Savage asked Mr. Doyle “why was there no mention of Alba when you went to the police” to provide a KGB statement? Mr. Murphy, however, withdrew that question when an objection was made by Mr. Savoie challenging its accuracy. According to Mr. Savoie, Mr.

Doyle had indeed advised the MPF in his KGB statement that an additional potential witness had been

present during the altercation. 34 . It was Mr. Doyle’s trial testimony that he remembers nothing from the time he got out of Mr. King’s vehicle until the time he “came to”. After he regained consciousness, Mr. Doyle testified that only Mr. King was present and “I went inside to wash my face”, speaking of the Doyle Residence, but “I couldn’t get the bleeding to stop”. Mr. Doyle testified that he spent “about five minutes” trying to get cleaned up and then went to the MRH. 35 .

Contrary to the evidence of Constable Gill that Gary Doyle advised him that he had driven his brother to the MRH at an unknown time on the evening of July 1 st , 2021 following the alleged assault, Mr. Doyle testified that it was a man named Dave Black who had taken him to the MRH for medical attention in the aftermath of the altercation. There was no further explanation of when Mr. Black arrived on the scene, who called him to assist and how long it took him to arrive after the alleged assault and get Mr. Doyle to the MRH. Mr. Black did not testify at trial. Asked whether it was possible that Mr.

Savage was defending himself during the altercation, Mr. Doyle responded “no…but I can’t remember”. 36 . On arrival at the MRH, Mr. Doyle testified he was first seen by Dr. Losier but it was Dr. Chan who “stitched me up”. Mr. Doyle also recalled having spoken to an officer from the MPF that evening at the MRH with whom he made arrangements to provide a KGB statement the following evening. The ten photographs comprising Exhibit C-1 were reviewed with Mr.

Doyle and he testified that: (1) they accurately and completely depict his injuries arising from the alleged assault, and (2) that the only cause of those injuries was Mr. Savage. Ms. Lynch’s Testimony 37 . Ms. Lynch is a 35-year-old self-described “single mom” of two daughters, aged nine and eleven. Mr. Savage is their father. She resides at the Lynch Residence, which is next door to the Doyle Residence. Ms. Lynch testified that she observed Mr. Doyle driving by the Lynch Residence “with another guy” on the evening of July 1 st , 2021. She went outside where Mr.

Savage was waiting for her in the driveway of the Lynch Residence to take her out for dinner. At this point, Mr. Doyle was in the driveway of the Doyle Residence and Ms. Lynch could hear Mr. Doyle “yelling at Leroy, calling him a ‘big headed cock sucker’ and telling him ‘if you come over I will show you’”. At this stage, according to her testimony, Mr. Savage said “we should go ask what’s going on”. It was Ms. Lynch’s impression that Mr. Doyle wanted a fight with Mr. Savage. 38 . Ms. Lynch got into the front passenger side of Mr. Savage’s vehicle and they went over to the driveway of the Doyle Residence where Mr.

Doyle “was in a vehicle with another guy who was backing out while Leroy was pulling in”. According to Ms. Lynch, Mr. Doyle yelled at Mr. Savage “get out of the car. I’m going to fuckin’ beat you!” and then approached the driver’s side window of Mr. Savage’s vehicle and “started swinging at Leroy”, hitting him two or three times through the open window of the driver’s side door. 39 . When this occurred, “Leroy pushed his car door open and they mutually started fighting” after “yelling in each other’s face”. The altercation that ensued after Mr.

Savage got out of his vehicle was short-lived, lasting “30 to 60 seconds”. According to Ms. Lynch, “Leroy hit Jeff two times, leaving a bruise on his cheek and a little scratch”. At this point, “the other guy”, speaking of the man who was in the vehicle with Mr. Doyle, “took off, accelerated and almost hit him”, which was inconsistent with Ms. Lynch’s earlier testimony. Mr. Doyle got up and walked into his house while Mr. Savage returned to his vehicle and left. It was Ms. Lynch’s impression that Mr. Doyle was “very intoxicated”. She remained in the front passenger seat of Mr.

Savage’s vehicle during the entire brief altercation and stated she observed only negligible injuries to Mr. Doyle when he got up, namely a superficial scratch and a bruise. Asked whether Mr. Savage was in possession of any weapons or had any jewelry or rings on his fingers at the time of the altercation, Ms. Lynch answered “absolutely not”. She also testified that no words were spoken between she and Mr. Doyle or between Mr. Savage and Mr. Doyle during the short altercation. When asked about Mr. Doyle’s evidence about a circumstance several months prior where he and Ms. Lynch had been drinking together and Mr.

Doyle was alleged to have pulled down her panties, Ms. Lynch indicated she was “unaware of this”. 40 . On cross-examination, Ms. Lynch’s evidence was robustly tested. She said Mr. Savage never uttered a word in response to the invective that Mr. Doyle was allegedly hurling at him from the driveway of the Doyle Residence. Asked what Mr. Savage was looking to accomplish by entering the driveway of the Doyle Residence and whether he had any business being there, Ms. Lynch responded “I don’t know”. Asked why Mr. Savage did not retreat when Mr. Doyle came toward his vehicle, Ms.

Lynch responded “Jeff was already coming at us” only to also acknowledge there were no obstructions that precluded them from simply backing out and driving away. She also acknowledged that Mr. Doyle had told them to leave. Exhibit C-1 was shown to Ms. Lynch and she was adamant the injuries depicted therein were not the result of the altercation between Mr. Doyle and Mr. Savage and “must’ve happened after”. She was certain in her testimony that the injuries shown in Exhibit C-1 were not caused by Mr. Savage. 41 . On the evening in question, Mr. Savage and Ms. Lynch had made plans to go out for dinner together.

They aborted those plans after the altercation because “they weren’t hungry after that”. Ms. Lynch testified that she wanted to “calm down” and Mr. Savage went home. When the questioning on cross-examination intensified, Ms. Lynch’s demeanor on the stand noticeably changed. She raised her voice at times, became increasingly argumentative and, at one point, she stood up as though she was going to leave and declared “I need to go get my kids now”. She had to be told to sit down and stay until her cross-examination was complete. Mr. Savoie proceeded to ask Ms.

Lynch about what conversation, if any, occurred between her and Mr. Savage immediately following the altercation. At this point, Ms. Lynch’s previously detailed recollection of events yielded to a rhythm of the following response to many questions: “I don’t recall”. She later said there was no discussion whatsoever between her and Mr. Savage about what had just taken place immediately following the altercation and no discussion about “having to get out of there”. 42 .

Asked whether her recollection was wrong regarding the point in time when the other vehicle was said to have left the driveway of the Doyle Residence, Ms. Lynch stated “I don’t recall”. Asked whether she saw any weapons on the person of either Mr. Doyle or Mr. Savage, Ms. Lynch responded “no”. Asked again about the earlier suggestion that there was some bad blood between Mr. Doyle and Mr.

Savage and whether she was aware of any past incidents or altercations between them, Ms. Lynch testified “I don’t recall”. After theincident, Ms. Lynch explained that she left the Lynch Residence to go spend the night with her grandmother, something that was notplanned ahead of time. She testified she is very close with her grandmother and she regularly went to her house for overnight visits at thelast minute. Mr. Savage’s Testimony 43. Mr. Savage is 35 years old. As earlier noted, he and Ms. Lynch have two daughters together. He testified that on July 1st, 2021 hemade plans with Ms.

Lynch to pick her up at the Lynch Residence and take her out for dinner that evening. According to Mr. Savage, thetime was “6:30 pm, no later” when he arrived at the Lynch Residence. While waiting for Ms. Lynch in the driveway of the LynchResidence, Mr. Savage noticed Mr. Doyle yelling at him from the driveway of the Doyle Residence. He was yelling and swearing at Mr.Savage with varying degrees of audibility. Mr. Savage testified that he could hear Mr. Doyle swearing at him and calling him a “big-headed cocksucker”. By Mr.

Savage’s estimation, “about 300 yards” separated the driveways of the Doyle Residence and the LynchResidence. 44. Mr. Savage testified that a man driving a truck was present and had backed into the driveway of the Doyle Residence at the time but“I didn’t recognize the driver”. Ms. Lynch got into Mr. Savage’s vehicle and suggested they “go over to see what he’s yelling about”.That is precisely what they did. Mr. Savage pulled his vehicle into the driveway of the Doyle Residence in such a way that the othervehicle’s exit path was not obstructed.

The two vehicles were approximately one yard apart with their driver’s side windows facing eachother. 45. According to Mr. Savage, he asked Mr. Doyle “what is the problem?” following which Mr. Doyle quickly approached Mr. Savage’svehicle and “hit me twice on the left side of my face while I was seated in my vehicle”. It was Mr. Savage’s evidence that after thisoccurred he managed to exit his vehicle despite the fact that Mr. Doyle was pushing against his driver’s side door. After Mr. Savage gotout of his vehicle, he explained that Mr.

Doyle “tried to get me into a headlock” at which time he could smell alcohol on Mr. Doyle’sbreath. 46. It was at this point, according to Mr. Savage, that he noticed a sheathed knife measuring approximately eight inches hanging fromMr. Doyle’s belt on his right side. Mr. Savage testified that he administered two quick “little jabs” to the right side of Mr. Doyle’s face,then returned to his vehicle. This entire transaction lasted “maybe a minute” according to Mr. Savage. As he backed out of the driveway,Mr. Savage observed Mr.

Doyle heading toward the front entrance to the Doyle Residence while yelling “fuck you” back at him. At thispoint in time according to Mr. Savage, the driver of the vehicle parked in the driveway of the Doyle Residence during the altercation haddriven away. Indeed, he drove away so quickly that Mr. Savage thought he was going to hit him. 47. As for the injuries sustained by Mr. Doyle during the alleged assault, Mr. Savage’s evidence was consistent with the testimony ofMs. Lynch that there was “nothing” in the way of lacerations on Mr.

Doyle’s face and that he observed no bleeding whatsoever based onhis clear and unobstructed view of Mr. Doyle immediately following the altercation. In his words “I saw not even a scratch or a bruise…nothing”. When shown the photographs comprising Exhibit C-1, Mr. Savage was adamant based on his observations immediatelyfollowing the altercation with Mr. Doyle that he was not responsible for any of the injuries depicted therein. It was his evidence that“there is no way I did that to him”. 48. Asked on cross-examination why he did not just leave the driveway of the Doyle Residence, Mr.

Savage explained “it all happenedso quick”. Asked why he did not leave after Mr. Doyle allegedly attacked him while he was still seated in his vehicle, Mr. Savage notedthat he was “fearful” of Mr. Doyle despite acknowledging that he is considerably younger and bigger than him. Moreover, on cross-examination Mr. Savage confirmed that Mr. Doyle never made any physical gestures to unsheathe his knife or verbally suggest he woulduse his knife on him. Mr. Savage testified “I was defending myself” and at no point did Mr. Doyle tell him to leave. 49. As to events immediately following the altercation, Mr.

Savage explained that he and Ms. Lynch no longer wanted to go out fordinner. In his words, “I just got assaulted and wanted to go home”. Asked why he did not call the MPF, Mr. Savage conceded “I shouldhave but Jessie lived next door and I didn’t want to make more of it”. On cross-examination, the Crown inquired as to whether Mr.Savage was in possession of any weapons or wearing any rings during the altercation, to which he responded “no”. THE APPLICABLE LAW The Presumption of Innocence, Credibility, Reliability and R. v. W.(D.) 50. Like every other person charged with a crime, Mr.

Savage is presumed innocent until the Crown has proven his guilt beyond areasonable doubt. The Crown bears the burden of proof throughout the entire trial. Mr. Savage need not present any evidence nor proveanything (see: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). 51. At paragraph 39 of Lifchus, Cory, J. described the standard as follows: 39 Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances, you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. 52. In R. v. Starr, [2000] S.C.C. 40, the Court described the level of proof as "much closer to absolute certainty than to ... a balance ofprobabilities." The burden remains on the Crown throughout. Proof of probable or even likely guilt, is insufficient. 53. This case will be decided as a matter of law according to the principles set out in R. v. W.(D.), in which Cory J. provided a helpful

analytical framework for deciding cases involving credibility. He stated: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must [still] acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 54. In another case, R. v.

H. (C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.), the British Columbia Court ofAppeal further supplemented the analytical framework offered by Cory, J. in R. v. W.(D.) by offering the follow guidance: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. 55. In Casey Hill, David M. Tanovich & Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence, loose leaf (Toronto: Canada LawBook, 2011) at 2521, the text states: It is useful to think of W.D. as a teaching on the correct process of reasoning about credibility. It forbids two distinct lines of analysesbecause they are inconsistent with the accused’s right to the presumption of innocence until guilt is proven by the Crown beyond areasonable doubt. First, it is forbidden to reason that the accused’s evidence must be believed to secure an acquittal.

The accused generally bears no burdenof proof and thus need not be believed on a balance of probabilities and certainly not on the highest standard of proof beyond areasonable doubt.

The second forbidden line of reasoning is for the trier of fact to think that the task of adjudication requires the trier of fact to answer thegeneral question of “What happened?” The problem with such a focus is that it creates a tendency in the trier of fact to search through theevidence looking for the truth and deciding whose evidence to believe, rather than searching for a reasonable doubt and giving theaccused the benefit of it. (emphasis added) 56. In R. v. Jones (1992), (QC CA), 74 C.C.C. (3d) 377 (Que.

C.A.) at pp. 379-380, Proulx, J.A. explains that whilethe search for and the determination of truth remain legitimate objectives for the trial judge, his or her role is nonetheless limited by thefundamental principles which govern the burden of adducing evidence and of persuasion. Because of the presumption of innocence,when the judge is confronted with contradictory versions, he or she does not have to decide which one of these versions is true.

Rather,the task of the trial judge is more acutely focused on determining whether the evidence as a whole raises a reasonable doubt, or whetherit satisfies him or her beyond a reasonable doubt as to the guilt of the accused. 57. Commenting specifically on Proulx J.A.’s analysis in the aforementioned decision, my colleague, Cloutier, P.C.J. (as he then was) ofthis Court, observed in R. v. I.J., 2018 NBPC 4 , 2018 NBPC 04 that “I would fine tune Justice Proulx’s comments in tworespects.

First, judges are not equipped with supernatural powers or favored with special insight allowing them to assess and rankcredibility. Second, the ultimate issue is not credibility but reasonable doubt”. 58. The corollary to this is that the trial judge need not decide who was telling the truth. The question, again, returns to the fundamentalquestion of whether the Crown has proven all of the essential elements of the offence beyond a reasonable doubt. 59. In assessing the evidence of Mr. Savage, I am entitled to consider it in the context of all of the other evidence.

In doing so, I am notonly permitted, but also encouraged, to compare the evidence of both the Defence and the Crown (see R. v. Mends, 2007 ONCA 669 atpara. 18 and R. v Carriere (2001), (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.)). 60. Making credibility findings is more art than science and cannot be reduced to a mechanical or formulaic exercise. A trial judge neednot deal with every piece of evidence in the context of reaching his or her credibility findings.

Credibility findings can be difficult toarticulate with precision, particularly when one considers the complex intermingling of impressions that emerge after the hearing of atrial: R. v. Gagnon 2006 SCC 17 , [2006] 1 S.C.R. 621 at para. 20 and R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R.788 at para. 26. 61. As was noted by Richard, J.A. (as he then was) in R. v. Wilson, 2013 NBCA 38, an abundance of jurisprudence has arisen from R. v.W.(D.).

Writing for our Court of Appeal, Richard J.A. provides an extremely helpful synopsis of the salient principles regarding thestandard of proof applicable in criminal cases at para. 36: A.1 Proof beyond a reasonable doubt, the standard in criminal law matters, applies equally to the issue of credibility: W.(D.), at para. 26.In other words, the issue at the end of a trial is not credibility, but reasonable doubt: Sheppard, at para. 65, and C.L.Y., at para. 6. A.2 The ideal reasoning process to determine a matter, where the accused denies guilt and credibility is in issue, is to follow the W.(D.)formula:

a. First, if the accused is believed, there must be an acquittal; b. Second, if the accused is not believed but the trier of fact is left in a reasonable doubt by it, there must also be an acquittal; c. Third, even if the evidence of the accused does not raise a reasonable doubt, a conviction is only justified if the trier of fact isconvinced of guilt beyond a reasonable doubt on the basis of the evidence that is accepted: W.(D.), at para. 28.

A.3 However, this formula is but a roadmap to remind the trier of fact the ultimate goal is proof beyond reasonable doubt and not merelya credibility contest; it is not the only route: C.L.Y., at para. 8. It is the substance of the test that must be respected, not its literal tripartiteincarnation: R. v. Szczerbaniwicz, 2010 SCC 15, [2010] 1 S.C.R. 455 (S.C.C.), at para. 14. A.4 A trier of fact need not firmly believe or disbelieve any witness or set of witnesses: W.(D.), at para. 27. A reasonable doubt need notrest upon the same sort of foundation of factual findings that is required to support a conviction.

A reasonable doubt arises where aninadequate foundation has been laid: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 (S.C.C.), at para. 26, quoting Sharpe J.A.,dissenting, in R. v. Kendall, (ON CA), [2005] O.J. No. 2457 (Ont. C.A.). A reasonable doubt does not need to bebased on the evidence; it can arise from an absence of evidence or from a simple failure of the evidence to persuade the trier of fact to therequisite level: R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197 (S.C.C.), at para. 39. A.5 Trial judges are presumed to know the law with which they work day in and day out: R. v.

B. (R.H.), (SCC),[1994] 1 S.C.R. 656, [1994] S.C.J. No. 30 (S.C.C.), at para. 18. A.6 By stating that the accused is not believed, a trial judge is implicitly addressing the first two steps in W.(D.): Boucher, at paras. 29and 59. 62. At para. 41 of his decision in R.v. Bartibogue, 2019 (unreported), my colleague, Gunn, P.C.J. of this Court, provides an extremelyhelpful “non-exhaustive list of relevant factors in assessing credibility”, as is synthesized from the jurisprudential guidance of theSupreme Court of Canada and the Court of Appeal of New Brunswick.

This list is as follows: a. the witness's opportunities for knowledge; b. the witness's powers of observation; c. the witness's judgment and memory; d. the witness's ability to clearly describe what has been seen and heard; e. How the testimony of the witness harmonizes "with the probabilities which a practical and informed person would readilyrecognize as reasonable in that place and in those conditions."; f. the cogency of the account; g.

Inconsistencies, and whether such inconsistencies: i. make the main points of the testimony more or less believable and reliable; ii. whether the inconsistency is about something important, or a minor detail; iii. whether the inconsistency seems like an honest mistake or a deliberate lie.

h. Whether the witness has an interest in the outcome of the case, or any reason to give evidence that is more favourable to one sidethan to the other, though care should be taken not to put undue weight on this factor; i. An absence of motive for the complainant to lie is relevant to the fact-finding process however, the trier of fact, must be careful toremember that this is but one factor, the accused has no obligation to prove a motive to fabricate and to not to let this factor turn into areversal of the onus of proof; and j.

The demeanour of the witness, though this is but one of the elements that enter into the credibility of the evidence of a witness andcan be both an unreliable indicator of truth and fallible. 63. It is also important to consider the reliability of a witness. A witness may be found to be credible; however, that does not answer thequestion of whether the evidence he or she provided at trial is reliable. It is important for the trial judge to recognize and consider thisdistinction. POSITIONS OF THE PARTIES Mr. Savage’s Position 64. In argument, Mr. Savage’s solicitor first focused heavily on Mr.

Doyle’s inability to recollect several key details of the altercation aswell as the various inconsistencies between Mr. Doyle’s KGB statement and his trial testimony, many of which have already beenhighlighted. He also emphasized Mr. Doyle’s observed state of intoxication on the night in question based on the evidence of CorporalHogan and, more particularly, how these observations did not align with Mr. Doyle’s own testimony respecting his level of alcoholconsumption that day. 65. Building further on what I will call the “intoxication issue”, Mr. Savage’s solicitor also emphasized that, by Mr.

Doyle’s own admission, he was too inebriated to provide a KGB statement on the evening of July 2nd, 2021 but did so in any event. In other words, Mr. Doyle’s evidence about his level of intoxication on the evening of July 1st, 2021 was, to use Mr. Murphy’s words, “woefullyunderstated if not an outright lie”. The position advanced by Mr. Savage’s solicitor is that Mr. Doyle’s evidence was utterly lacking fromboth a credibility and reliability perspective and that the Crown’s case rests squarely on same. 66. This segued into the next argument advanced by Mr. Murphy, being that “a key witness”, Mr.

King, was never interviewed by theMPF. Before proceeding further, it is important for the Court to make a few observations respecting Mr. Murphy’s overall approach tothis particular aspect of this case and, in particular, its evidentiary underpinning or, perhaps better put, lack thereof. Constable Gill testified that he had taken Mr. Doyle’s KGB statement on the evening of July 2nd, 2021. This KGB statement obviously formed part ofthe Crown Disclosure. Indeed, it was extensively referred to by Mr. Murphy in his cross-examination of Mr. Doyle to impeach thecomplainant’s credibility and reliability. 67. Mr.

Murphy had a full right of cross-examination regarding the two witnesses from the MPF. However, at no point did he questioneither Corporal Hogan or Constable Gill about Mr. King or, more generally, about a potential witness to the alleged assault. Not a singlequestion. He never asked Constable Gill, for example, whether Mr. Doyle had mentioned Mr. King or a potential witness more generallyin his KGB statement. He did not pursue directly with either Corporal Hogan or Constable Gill whether, if Mr.

King’s name was in factmentioned as a potential witness or if a more general reference was made to a potential witness in Mr. Doyle’s KGB statement, whatsteps if any were taken by the MPF to ascertain who that was and follow up accordingly? Could, for example, such potential witness notbe located by the MPF or might a proper and full cross-examination have revealed another explanation? As was earlier addressed, Mr.Murphy asked Mr. Doyle on cross-examination “why was there no mention of Alba when you went to the police” to provide his KGBstatement? Mr.

Murphy, however, quickly withdrew this question and indicated he had mis-spoken when an objection was raised by Mr.Savoie challenging the veracity of its evidentiary foundation. 68. To be blunt, this Court is flummoxed by Mr. Murphy’s fast and loose approach of taking no steps whatsoever on the cross-examination of either Corporal Hogan or Constable Gill to shed any light on this particular dimension of the case from an evidentiaryperspective, only to then frolic in argument in the murkiness of his own creation through innuendo and speculation not properly anchoredin the evidentiary record before this Court.

It is trite law, as McIntyre, J. observed in R. v. Yebes, (SCC), [1987] 36C.C.C. (3d) 417 (S.C.C.) at pages 433 and 434 that “[t]he Crown has a discretion as to which witnesses it will call in presenting its caseto the court” and that “[t]his discretion will not be interfered with unless the Crown has exercised it for some oblique or improperreason”. 69. No such oblique or improper reason is alleged here but the strong implication underlying Mr.

Murphy’s argument on this point isthat an adverse inference or something akin to it ought to be drawn against the Crown relating to the other possible witness and, moreparticularly, the fact that such witness did not testify at trial. This Court declines Mr. Murphy’s invitation and wishes to state in theclearest terms that the Court’s decision in this matter is based strictly on the evidentiary record before it rather than any conjecturenourished by the failure of Mr.

Savage’s counsel on cross-examination to establish any evidentiary foundation whatsoever to support hisargument as it pertains to the other potential witness. For the Crown, Mr. Savoie referred to Mr. Murphy’s argument as a “straw man”and this Court finds that to be a fair assessment in the circumstances. 70. Mr. Murphy also emphasized the evidence of Ms. Lynch and Mr. Savage that the altercation involved two “little jabs” rather than “ahaymaker” and that these two “little jabs” did not produce the injuries to Mr. Doyle as depicted in Exhibit C-1. Further, Mr.

Savage’ssolicitor also noted the potentially wide gap in time between the altercation and Mr. Doyle’s treatment at the MRH, which could spanbetween a duration of as little as thirty minutes to as much as two and a half to three hours.

71 . If the Court is to find that the Crown has indeed proved all the essential elements of the offence with which Mr. Savage is charged beyond a reasonable doubt, it is the position of Mr. Murphy that the law of self defence under

Section 34 of the Criminal Code applies. In making this submission, Mr. Savage’s solicitor stated that all three elements of self defence are made out in this case, as summarized by the Court of Appeal of New Brunswick in R. v. Cormier , 2017 NBCA 10 at paragraph 40 ( see also: R. v. Ryan , 2013 SCC 3 at paragraph 20 ). Moreover, and relying on the

summary appeal court decision of Labach, J. in R. v. Snell , 2017 SKQB 255 at paragraph 51 , Mr. Murphy submits that there was no obligation for Mr. Savage to retreat in the circumstances nor is it a requirement “that a person facing attack” is to be “expected to weigh with ‘nicety’ the exact nature or amount of responsive force he or she employs”, particularly in the context of reacting to a quickly evolving situation. The Crown’s Position 72 . Mr. Savoie noted that Mr.

Doyle’s lack of recollection respecting the alleged assault due to his having been temporarily rendered unconscious is not problematic and that there are no temporal voids or unfilled gaps. Indeed, Mr. Savoie emphasized Mr. Savage’s testimony that Mr. Doyle was ambulatory and observed heading inside the front door of the Doyle Residence before Mr. Savage left the driveway following their altercation. It is the Crown’s position that Mr. Doyle gave a clear and cogent account of what he can remember about the alleged assault and that the evidence before this Court establishes beyond a reasonable doubt that Mr.

Savage caused the injuries to Mr. Doyle that are depicted in Exhibit C-1. 73 . Further, the Crown pointed to several inconsistencies in the evidence of Ms. Lynch and Mr. Savage, arguing that the visit from Mr. Savage to the driveway of the Doyle Residence on July 1 st , 2021 was “not a friendly visit”, that Mr. Doyle told Mr. Savage to leave but Mr. Savage refused, and that if Mr. Doyle indeed initiated the first physical contact with Mr. Savage after he told him to leave that it would be justified under

Section 35 of the Criminal Code . The evidence of Mr. Doyle that there was an animus between him and Mr. Savage owing to events said to have happened six or seven months before also went unchallenged. Moreover, it is the position of the Crown that the requirements of self defence in

Section 34 of the Criminal Code are not satisfied in the circumstances of this case for a variety of reasons including that the action allegedly taken by Mr. Savage was “grossly disproportionate” in the circumstances. APPLICATION OF THE LAW TO THE FACTS 74 . As earlier noted, Mr. Savage benefits from the presumption of innocence until such time that the Crown has proven all essential elements of the offence of aggravated assault beyond a reasonable doubt. The Crown bears the burden of proof throughout and Mr. Savage need not present any evidence or prove anything.

The Supreme Court of Canada has made it very clear that the belief of a trial judge that the accused is “probably guilty or likely guilty” is insufficient to ground a conviction and that the level of proof required has to be “much closer to absolute certainty than to…a balance of probabilities”. 75 . Moreover, this Court must apply the analytical framework mandated by the Supreme Court of Canada in R. v. W.(D.) in view of the fact that Mr. Savage testified at trial. At the heart of the R. v. W.(D.) analysis is the assessment of credibility. 76 . The Crown’s case is substantially anchored in the evidence of Mr.

Doyle, which is infused with a myriad of credibility and reliability issues, as earlier canvassed. It is not the Court’s intention to embark on a chapter, line and verse assessment of every credibility issue presented in the evidence of Mr. Doyle. Indeed, the Supreme Court of Canada has made it clear that such granularity is not required of a trial judge in discharging her or his obligations under R. v. (W.D.) . That being said, the giving of meaningful and intelligible reasons for decision requires more than a fleeting or superficial examination of credibility considerations. 77 . The Court will begin with Mr.

Doyle’s evidence. Mr. Doyle maintains that he only consumed a single serving of alcohol, or perhaps “a double” on July 1 st , 2021 leading up to the alleged assault and his subsequent visit to the MRH to be treated for the injuries he presented with on that evening. This is greatly at odds with the observations of Corporal Hogan, who immediately detected a “moderate smell” of alcohol coming from Mr. Doyle at the MRH on the evening of July 1 st , 2021 which intensified when he began speaking to him about the alleged assault.

Corporal Hogan’s evidence was clear, consistent and cogent and his observations respecting Mr. Doyle’s level of intoxication were informed by several years of police experience and training. 78 . It is also noteworthy that no KGB statement was taken from Mr. Doyle on the evening of the alleged assault chiefly owing to Corporal Hogan’s conclusion that Mr. Doyle was simply too intoxicated to provide one. I find the evidence of Mr. Doyle that he had only consumed one or two servings of alcohol on July 1 st , 2021 to be entirely devoid of credibility. Indeed, I find it untruthful.

It is clear to this Court based on the totality of the evidence before it that Mr. Doyle was intoxicated to a considerable degree by alcohol on the evening in question. This diminishes both his credibility and, correspondingly, calls into question his reliability in the eyes of this Court. 79 . Moreover, when Mr. Savage’s solicitor began exploring numerous inconsistencies, many of a material nature, between the content of Mr. Doyle’s July 2 nd , 2021 KGB statement and his evidence on direct examination at trial, Mr.

Doyle readily acknowledged that he was intoxicated by alcohol when his KGB statement was given to Constable Gill on July 2 nd , 2021 to such a degree that he was “confused” and, by his own admission, had no business giving such a statement in that condition on that date. Again, this raises serious credibility and reliability issues 80 . There are numerous material inconsistencies between Mr. Doyle’s KGB statement and his evidence at trial, some of which include the following: a. In his KGB statement, Mr.

Doyle advised that he returned to the Doyle Residence after work “at 7:00 pm” on the evening of July 1 st , 2021. At trial, he testified that he returned to the Doyle Residence “between 6:00 pm and 8:00 pm…I think”; b. In his KGB statement, Mr. Doyle advised that Mr. Savage had “used something sharp to harm him” during the alleged assault, which would suggest a conscious and perhaps even nuanced recollection of the alleged assault. At trial, he testified that he had zero

recollection of the alleged assault and that “I can’t remember if Mr. Savage had a weapon”; c. In his KGB statement, Mr. Doyle advised that Mr. Savage had been yelling at him to get out of Mr. King’s vehicle. At trial, he testified on direct examination that he was “not sure” about this only to then pivot on cross-examination to the seemingly vivid recollection that Mr. Savage had told him to “get out of your car you little bitch and I’ll give you another one like I did last time”, and d. In his KGB statement, Mr.

Doyle advised that when they both got out of their vehicles in the driveway of the Doyle Residence that he and Mr. Savage “both started swinging punches at each other”. At trial, he testified “I imagine” followed by “I don’t know” in response to the question of whether he tried to hit Mr. Savage. 81 . In assessing the evidence of Mr. Doyle, this Court is left in the unenviable position of dealing with a context of intoxication by alcohol at the time of the alleged assault and its immediate aftermath as well as intoxication by alcohol when the July 2 nd , 2021 KGB statement was given.

Adding to that problematic foundation, Mr. Doyle’s testimony at trial was quite obviously dulled by the passage of time and his clear inability to recall certain basic details. 82 . The Crown states that there is sufficient consistency and continuity in the evidence of Mr. Doyle as it pertains to the injuries he is alleged to have sustained at the hands of Mr. Savage and that there are no temporal voids or unfilled gaps of a nature that would preclude entering a conviction against Mr. Savage on the charge of aggravated assault. 83 .

In effect, the Crown states that there is no evidence before the Court that would offer an alternative explanation for Mr. Doyle’s injuries. In other words, Mr. Doyle testified that the injuries depicted in Exhibit C-1 arose from the driveway altercation between Mr. Savage and Mr. Doyle at the Doyle Residence. Of course, in making this submission the Crown is asking this Court to believe the evidence of Mr. Doyle and to disbelieve the contradictory evidence of both Mr. Savage and Ms.

Lynch that the injuries depicted in Exhibit C-1 must have occurred between the time they left the driveway of the Doyle Residence following the July 1 st , 2021 altercation and when Mr. Doyle presented at the MRH seeking medical treatment later that evening. 84 . Moreover, the Crown asks this Court to accept the testimony of Corporal Hogan that only a short window of about thirty minutes transpired between the time of the alleged assault and Mr. Doyle’s attendance at the MRH. It must be acknowledged, however, that the widely divergent and inconsistent testimony of Mr.

Doyle depending on whether you believe his KGB statement or his trial testimony, when taken in conjunction with the evidence of Corporal Hogan and Constable Gill, would suggest that a period approaching up to three hours may have actually elapsed between the alleged assault and the time Corporal Hogan met with Mr. Doyle at the MRH. This, in the eyes of the Court, is also problematic. It leaves a potentially significant period of unaccounted time and is further animated and bound up in the various other inconsistencies that permeate Mr. Doyle’s evidence. 85 . Turning to the testimony of Ms. Lynch and Mr.

Savage, this Court finds that their testimony was also infused with credibility and reliability issues. Ms. Lynch degenerated from vivid recollections on direct examination to a succession of responses that “I don’t recall” when under the pressure of cross-examination. Also, the idea that one would “go over to see what he’s yelling about” when Mr. Doyle was allegedly hurling profanity and insults toward Mr. Savage, such as calling him a “big-headed cocksucker”, is incongruous. 86 . There is considerable symmetry between the evidence of Ms. Lynch and Mr.

Savage on several key points already canvassed, including that the injuries to Mr. Doyle depicted in Exhibit C-1 were caused by something other than the short-lived altercation between Mr. Doyle and Mr. Savage. Moreover, it needs to be pointed out that the notion that Mr. Savage was “fearful” of Mr. Doyle, a much smaller man who is 20 years his senior, stretches the bounds of credulity, particularly when animated by the fact that Mr. Savage could have easily backed up and driven off at any time during this altercation. CONCLUSION 87 . Having regard to the R. v.

W.(D.) framework, this case is riddled with material credibility and reliability issues across the board as it pertains to the evidence of Mr. Doyle, Ms. Lynch and Mr. Savage. As was noted by the British Columbia Court of Appeal in R. v. (H. (C.W.) , “if, after a careful consideration of all the evidence, you are unable to decide who to believe, you must acquit” That is precisely the position the Court finds itself in based on the totality of the evidence before it that it does accept. 88 . Is Mr. Savage “probably guilty” of the offence with which he is charged? Yes. Is he “likely guilty”? Also, yes.

As earlier noted, however, this is an insufficient basis to ground a conviction as the level of proof required has to be “much closer to absolute certainty than to…a balance of probabilities”. 89 . This Court is not convinced that the Crown has established all of the essential elements of the offence of aggravated assault beyond a reasonable doubt in this case. This is so because this Court is unable to decide who to believe based on the totality of the evidence. In view of this finding, it is unnecessary for the Court to enter upon an analysis of Sections 34 or 35 of the Criminal Code . 90 .

In conclusion, I find Mr. Savage not guilty of having committed an aggravated assault by wounding Mr. Doyle on July 1 st , 2021. Brittain, PCJ