Her Majesty the Queen - v. -, 2022 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 20 Date: March 25, 2022 Information: 991087244 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joshua Dacey Appearing: Ms. S. Verma For the Crown Mr. P. McDougall For the Accused TRIAL DECISION D.C. SCOTT , J Introduction [ 1 ] Joshua Dacey is charged that on March 14, 2019, he committed an assault on Eric McRobbie, causing him bodily harm contrary to s. 267 (

b) of the Criminal Code . [ 2 ] In the early morning hours of March 14, 2019, Connor Brossart and Eric McRobbie attended at the Hose and Hydrant off- sale store. Shortly after they arrived, another vehicle, occupied by two women and two men, pulled into the same area. Mr. McRobbie admits to making an insulting gesture to one of the two men and a brief physical altercation ensued. It was not until hours later that Mr. McRobbie discovered he had been stabbed. [ 3 ] Approximately fifteen minutes after the altercation, in another area of the city, a vehicle in which Mr. Dacey was an

occupant was involved in an unrelated traffic stop. [ 4 ] Mr. Brossart and Mr. McRobbie provided written statements to the police and participated in photo line-ups. A video of the off-sale parking lot for the date in question was obtained by the police. The accused Joshua Dacey was subsequently charged. [ 5 ] The issue in this trial is whether the Crown has proven beyond a reasonable doubt that Joshua Dacey was the individual who committed the assault on Mr. McRobbie, causing him bodily harm. [ 6 ] My decision finding Mr.

Dacey not guilty was delivered in court on March 25, 2022, by reading excerpts of my reasons. These are my full written reasons. Evidence Connor Brossart [ 7 ] Mr. Brossart is 25 years of age and a friend of the victim, Eric McRobbie. He testified that on the evening in question, he and Mr. McRobbie were at Mr. Brossart’s place. Mr. McRobbie had consumed a mickey of alcohol and wanted more, so Mr. Brossart drove Mr. McRobbie’s vehicle as they went looking for an open off-sale store. Mr.

Brossart testified he had not been drinking or consuming drugs and was sober at the time. [ 8 ] At approximately 3:00 a.m. they arrived at the Hose and Hydrant off-sale. Mr. McRobbie walked up to the door and realized it was closed. Another vehicle arrived at the same location and two males got out. Mr. McRobbie told the men something to the effect that they would not be allowed to enter. Mr. Brossart was still in the vehicle at that point. [ 9 ] Mr. McRobbie made a gesture, known as a squat, toward one of the males who was wearing a track suit. According to Mr.

Brossart, the squat is considered to be an offensive or insulting gesture based on an internet joke or meme toward Slavic people wearing track suits. [ 10 ] One of the males punched Mr. McRobbie in response to the insult. Mr. McRobbie got up and started to defend himself so the second male joined in. Mr. Brossart then attempted to intervene to stop the fight. The altercation ended and the two unknown males left in their vehicle. [ 11 ] At trial, Mr. Brossart viewed a video of the scene [Exhibit P-1] and verified it represented the incident. He identified the first vehicle that pulled into the parking lot as Mr.

McRobbie’s vehicle. He identified Mr. McRobbie as the individual getting out of their vehicle and running to the off-sale door. The door was locked and he was not allowed in. [ 12 ] Mr. Brossart pointed out the second vehicle to arrive testifying that it had been occupied by two females in the front seat and two males in the back seat. The two males left the vehicle and tried to enter the off-sale store. Mr. McRobbie waited to see if the two males would be able to gain entry. [ 13 ] Mr. Brossart pointed out on the video Mr. McRobbie’s squat, the subsequent strike by one of the males, and the fight that ensued.

Mr. Brossart pointed out on the video his attempt to break up the fight without throwing any punches. He stood between the men, reaching out his arms and trying to explain that Mr. McRobbie was drunk. Mr. Brossart sustained a minor bruise. [ 14 ] Although this cannot be heard or seen on the video, Mr. Brossart testified that one of the males asked Mr. Brossart if he “wanted some too” in a threatening manner. [ 15 ] Mr. Brossart pointed out one of the males throwing Mr. Brossart’s hat, which Mr. Brossart then retrieved. Mr.

Brossart testified that he said to the male who threw his hat, “hey I didn’t do anything” to which the male replied “‘shut up or I’ll stab you too’ or something like that”. Mr. Brossart grabbed his hat and returned to the vehicle. [ 16 ] Mr. Brossart testified that the two assailants rode away in their vehicle, leaving behind a cell phone on the ground. He thought it was Mr. McRobbie’s phone, so he put it in his pocket. In cross-examination, Mr. Brossart testified that once he learned that the cell phone was not Mr. McRobbie’s, he took out the battery and SIM card so that the owner could not track it.

He gave the phone to the police at their request. [ 17 ] Mr. Brossart and Mr. McRobbie immediately left the scene, drove home and went to bed. When they awoke around 10:00 a.m., they realized there was a lot of blood on the couch where Mr. McRobbie had slept. Mr. Brossart saw the open wound through the hole in Mr. McRobbie’s shirt. Shortly after, they went to the hospital. Mr. Brossart testified there was no possibility that Mr. McRobbie’s wound occurred in any way other than during the fight. [ 18 ] In his testimony, Mr. Brossart provided a description of the two males.

One male with light to medium-dark skin and a buzzcut hairstyle was wearing an all-blue track suit with white stripes on the sides. The second male had quite dark skin and a mid-size Afro haircut. Mr. Brossart could not recall the attire of the second male, other than he might have been wearing a hat. Neither male had dreadlocked hair. Mr. Brossart acknowledged that his recollection of what happened was somewhat fuzzy. [ 19 ] Mr. Brossart’s description of the two males at trial was not as detailed as that provided during the photo line-up.

At that time, he described one male as approximately 5 feet 10 or 11 inches in height, Native or Black, with a flat nose. He described the taller male as Black or half-Black, with an Afro haircut, wearing a pin-striped muscle shirt and no jacket. [ 20 ] Mr. Brossart testified he did not know the make, model or colour of the vehicle carrying the two males, except that it looked like an Alero. In the photo line-up video, Mr. Brossart told Sgt. Bryden the vehicle was silver and that he and Mr. McRobbie had “collaborated” on that point.

He also told the officer that the vehicle was a 4-door sedan and looked like a Chrysler, but he could not be sure.

[ 21 ] Mr. Brossart participated in a photo line-up with Sgt. Bryden on March 26, 2019. In court, he confirmed that when shown the photo line-up [Exhibit P-2] he selected two photos, #1 of 9 and #4 of 9, as the two assailants. He testified that he recalled selecting them with a high level of certainty. In fact, he told Sgt. Bryden that he was 70 percent certain photo #1 was the taller male. Initially, he told Sgt. Bryden that he was 90 percent certain that photo #4 was the male in the blue track suit but changed his level of certainty to 80 percent. In cross-examination, Mr.

Brossart acknowledged that he was uncertain of the photos he selected. He testified that he was giving his best answer based upon what the officer wanted from him. [ 22 ] In the courtroom, Mr. Brossart identified Mr. Dacey as one of the individuals in the photographs. Eric McRobbie [ 23 ] Eric McRobbie is 27 years of age and works for the City of Saskatoon. He testified that on the evening in question, he was drinking at Mr. Brossart’s house where he had consumed a 355 ml bottle of hard liquor with 35 percent alcohol. He asked Mr.

Brossart to drive him to the Hose and Hydrant off-sale near closing time which was around 3:00 a.m. When they arrived, the off-sale store had already closed. Another vehicle pulled up and two males got out of the car. Mr. McRobbie told them that the store was closed. [ 24 ] According to Mr. McRobbie, “some words were had” although he could not recall what was said. Mr. McRobbie acknowledged that he made a taunting gesture to the individuals based upon an internet joke about people in track suits and how they squat.

He acknowledged in cross-examination that his gesture could have been interpreted as provocative. [ 25 ] The two males began fighting with Mr. McRobbie. The fight involved the swinging of punches. Mr. Brossart got out of the car to try to break up the fight. Although Mr. McRobbie did not recall, he assumed the fight continued until he got stabbed and the two males left. [ 26 ] Mr. McRobbie and Mr. Brossart went back to Mr. Brossart’s house to sleep. He awoke the next morning in a pool of blood. He found out that he had been stabbed in the back, so he and Mr. Brossart went to the hospital. [ 27 ] Mr.

McRobbie testified that the vehicle carrying the two males was a silver sedan. He believed there were two females in the vehicle, one driving and the other in the front seat. He did not see their faces but heard them yelling to stop the fight. [ 28 ] He recalled one male was wearing a track suit but did not recall the other male’s clothing. He could not recall anything about their hair. He did not recall any words said to him. [ 29 ] At trial, Mr. McRobbie could not recall the date on which this incident occurred but agreed with the date on the video footage.

He could not identify either of the two males who fought with him. He could provide no details about the track suit. [ 30 ] Mr. McRobbie was shown the video taken from the Broadway Theatre [Exhibit P-1]. He pointed out himself as the person approaching the off-sale door. He identified himself squatting, after which he was struck, but he could not say by whom. He could not say whether it was a push or a punch. He identified his friend putting his arms out with Mr. McRobbie behind him.

He testified that he saw a cell phone on the ground, picked it up and tossed it at the second vehicle. [ 31 ] He acknowledged that the incident occurred around 3:00 a.m. and that he did not notice the injury until 10:00 a.m., some seven hours later. [ 32 ] The doctors told Mr. McRobbie the laceration was a stab wound approximately two inches in length requiring stitches. He has not had any lasting effects as a result of the stabbing. [ 33 ] Mr. McRobbie confirmed that he and Mr. Brossart were interviewed and both gave their written statements together at the hospital. [ 34 ] Mr.

McRobbie also provided a recorded statement at the time of the photo line-up on March 20, 2019. He was unable to identify anyone from the photo line-up. He could not identify which of the two males assaulted him—he could only say it was one of the two males. He acknowledged the officer’s comments, “No photo selected, possibly 2 or 9” which he signed. This photo line-up was admitted as Exhibit D-2. [ 35 ] Mr. McRobbie could not say which of the two males cut his back. He could not identify Mr. Dacey in the courtroom. The video of the scene, Exhibit P-1 [ 36 ] On March 15, 2019, Cst.

Gabrielle Sackville, an officer with the Saskatoon Police Service retrieved a video from the Broadway Theatre and placed it in exhibits at the police station. The video was marked as Exhibit P-1 and played in court. [ 37 ] I had the benefit of viewing the video of the scene several times. The quality of the video is poor. It is black and white, filmed on an angle and without audio. It purports to show the alley behind the Hose and Hydrant where the off-sale store is located. According to the timer on the video, on March 14, 2019, at 3:01:22 a.m., a vehicle pulled into the alley and came to a stop.

A male left the vehicle and walked to the off-sale door. I accept that the first vehicle was that of Mr. McRobbie and that he was the first male to approach the off-sale door. The off-sale door appeared to be locked. As Mr. McRobbie walked back towards his vehicle, a second vehicle pulled into the alley, stopped and two males got out and walked to the same off-sale window. While the testimony of Mr. McRobbie and Mr.

Brossart was that the two females were in the front seat, it appeared to me that one of the males got out of the front passenger door, closing the door behind him, and the other exited the rear passenger door directly behind the first male. Discovering the off-sale door was locked, the two males turned to walk toward their vehicle. As they approached Mr. McRobbie, he can be seen squatting. It appears that one of the males struck Mr. McRobbie, causing him to fall over from his squatting position. A fight began between Mr. McRobbie and the other two males lasting a little over one minute. Mr.

McRobbie can be seen not only defending himself, but also as the aggressor at one point. Some of the fight is out of view of the camera. At the conclusion of the fight one of the two males

appeared to throw something. Mr. Brossart testified it was his hat. The car that brought the two males left the scene, and Mr. Brossart identified himself as retrieving his hat, walking back to his car, and driving away from the scene, travelling in the opposite direction of the second vehicle. Cst. Travis Chomyn [ 38 ] Cst. Chomyn, an officer with the Saskatoon Police Service, was uniformed and on patrol in an unmarked police vehicle on the evening of March 14, 2019.

On that day, at approximately 3:15 a.m., he conducted a traffic stop of a 2003 Mercedes C320 in the area of 33 rd Street and Quebec Avenue or Ontario Avenue in Saskatoon. He spoke with the driver and one of the occupants at that time. The purpose of the traffic stop was to check the driver’s licence and sobriety. [ 39 ] The driver provided the officer with an SGI licence. When asked, the front-seat passenger stated he was Joshua Dacey. He was wearing an all-blue Adidas track suit with white stripes on it. He had some visible injuries but declined any medical attention when the officer asked.

In particular, he had dried blood around his nose and some scrapes on his knuckles. There was also some blood on his clothing. The officer had heard about the fight at the Hose and Hydrant on the police radio, so he asked Mr. Dacey if he had been there. Mr. Dacey responded he had not and wondered why the officer was asking. [ 40 ] A third occupant was in the back seat, with whom the officer did not speak. The officer thought the male was pretending to be asleep because, just prior to the stop, the rear passenger looked through the rear window of the vehicle. Cst.

Chomyn unsuccessfully tried to wake him, so the officer did not ascertain his identity. The officer described the rear passenger as an African American male whose hair was bushier on top with long blonde and black dreadlocks. He did not appear to have any visible injuries. [ 41 ] The following week, Cst. Chomyn received an email, presumably from a fellow officer, with a photograph of Joshua Dacey attached, asking if that was the male he had dealt with at the time of the traffic stop. According to the officer it was the same person.

At trial, the officer identified Joshua Dacey, sitting in the front row of the courtroom, as the passenger in the vehicle he stopped. [ 42 ] In cross-examination, Cst. Chomyn disagreed that it was “quite a distance” between the Hose and Hydrant and the location of the traffic stop, which he described as just across the river and downtown. Cst. Joshua Bond [ 43 ] Cst. Bond, a member of the Saskatoon Police Service, was on patrol on March 14, 2019, at 1:40 p.m.

He was dispatched to the Royal University Hospital in relation to Eric McRobbie who had come into the hospital with a stab wound at approximately 11:20 a.m. [ 44 ] The officer spoke with Eric McRobbie and his friend, Connor Brossart. He saw the cut to Mr. McRobbie’s lower back and the black T-shirt he had been wearing with a cut in the same spot. [ 45 ] Both men provided Cst. Bond with written witness statements. They told the officer they were at the Hose and Hydrant Pub off-sale parking lot at approximately 3:00 a.m. that same day. While there, Mr.

McRobbie was involved in a physical altercation with two males. [ 46 ] The officer noted that Mr. McRobbie and Mr. Brossart told him one of the males had light skin, was a Black male, wearing an Adidas track suit, 5 feet 11 inches, with a medium build. The second male, had light skin, wearing a pinstriped muscle shirt, was 6 feet 2 inches, with a thin build and a short Afro haircut. They did not describe someone with dreadlocks or long hair. [ 47 ] Mr.

Brossart provided the officer with a black LG cell phone, explaining that it had been dropped by one of the suspects at the scene. [ 48 ] After the hospital, the officer attended the Hose and Hydrant off-sale. A staff member explained that their cameras would not have captured the event in the parking lot. The officer was provided the name of a Hose and Hydrant employee, as a potential witness, but the officer did not follow up. The officer spoke to the director of the Broadway Theatre across the alley and viewed the video footage from their camera showing the altercation. Sgt. Daniel Bryden [ 49 ] Sgt.

Bryden has been an officer with the Saskatoon Police Service for 31 years. On March 15, 2019, he was assigned to investigate a complaint regarding a fight that happened in the early morning hours of March 14, 2019, by the Hose and Hydrant off-sale, located in the alley of the 600 block of 11 th Street, in Saskatoon. Sgt. Bryden viewed a video from the Broadway Theatre placed into exhibits by Cst. Sackville. [ 50 ] On March 15, 2019, Sgt. Bryden read a report that at approximately 3:00 a.m. on March 14, 2019, Cst.

Chomyn had stopped a vehicle in which a male, identified as Joshua Dacey, was located, wearing a blue track suit. He had blood on his clothing and a bruised hand. [ 51 ] On the police database, Sgt. Bryden found a reference to a person named Joshua Dacey who had received a traffic ticket in 2018 and who had produced a Nova Scotia driver’s licence at the time. A photograph of Joshua Dacey was requested and received from Nova Scotia Motor Vehicle Branch. The photo was dated 2017. [ 52 ] In the line-up Sgt. Bryden included the Nova Scotia photo of Mr.

Dacey, along with eight Saskatoon Police Service database photos of others based upon what he viewed as their similarity to the accused. In cross-examination, Sgt. Bryden acknowledged he prepared a photo line-up with all people of African descent and that a total of nine photographs were used. [ 53 ] Sgt. Bryden testified that he compiled and administered the photo line-up himself. He did not involve any other officer. When

putting the photo booklet together, Sgt. Bryden was aware that Joshua Dacey was the suspect. [ 54 ] Sgt. Bryden conducted two line-ups, one with Eric McRobbie on March 20, 2019 and the other with Connor Brossart on March 26, 2019. The photo booklet used with Connor Brossart was marked as Exhibit P-2. The video interview of Connor Brossart during the photo line-up was marked as Exhibit P-3 and was played in court. [ 55 ] Mr. McRobbie did not identify anyone from the photo line-up as a suspect in the altercation. As Sgt. Bryden stated at the bottom of the cover page, “no photos were selected.

Possibly number 2 or number 9”. Neither of those photos were of the accused Joshua Dacey. [ 56 ] The officer read the front page to Mr. McRobbie and Mr. Brossart. The statements given by Mr. Brossart and Mr. McRobbie during the photo line-ups were not sworn statements. [ 57 ] During the photo line-up, Mr. Brossart identified photo #1 and photo #4. According to the officer, Mr. Brossart was at first 90 percent certain and then 80 percent certain of photo #4 and was 70 percent certain for photo #1. [ 58 ] In the video, Mr. Brossart selected photo #4 as the shorter of the two males who was wearing the track suit.

That was the photo of Joshua Dacey. From the same photo line-up, Mr. Brossart selected photo #1 as the second, taller male involved in the altercation. That individual was never identified or arrested, according to Sgt. Bryden. [ 59 ] Upon reviewing the video of the scene in court, Sgt. Bryden testified he could not identify any of the individuals or the make and model of the vehicles. All that he could see was four or perhaps five people involved in a scuffle. [ 60 ] Sgt. Bryden identified Mr. Dacey in the courtroom and stated he had never met Mr. Dacey before.

Issue [ 61 ] As mentioned, the issue to be decided is whether the Crown has proven beyond a reasonable doubt that it was Joshua Dacey who assaulted Eric McRobbie by stabbing him, thereby causing him bodily harm. Eyewitness Identification [ 62 ] The victim, Eric McRobbie, was unable to identify the individuals with whom he fought. He was unable to identify either of the individuals in the photo line-up and was not able to identify Mr. Dacey in court as one of the two males. Mr. McRobbie could not say which of the two had stabbed him. [ 63 ] There were discrepancies in Mr. Brossart’s description of the two males.

During his interview of Mr. Brossart and Mr. McRobbie at the hospital, Cst. Bond noted the following description of one male as “light skin, Black, wearing Adidas track suit, 5 foot 11, medium build”. The second male was described as “light skin, Black, 6 foot 2, pinstriped muscle shirt, thin build, short Afro”. Neither male was described as having long hair or dreadlocks. [ 64 ] During the photo line-up, Mr. Brossart described the shorter male as Native or Black with a flat nose. He described the taller male as Black or half-Black. [ 65 ] At trial, Mr.

Brossart testified that one of the males was wearing an all-blue track suit with white stripes going up the sides. One of the males had “lighter, medium-dark skin and other male had quite dark skin” [T74, lines 33 – 39]. The male not wearing the track suit was wearing a “hat of sorts”. [ 66 ] I am mindful of the decision in R v Bigsky , 2006 SKCA 145 , 217 CCC (3d) 441 where the Saskatchewan Court of Appeal addressed the inherent dangers and frailties of eyewitness identification. In the present case, the eyewitnesses, Mr. Brossart and Mr.

McRobbie interacted with the two males for approximately one to two minutes, according to the video. The area was dimly lit, the males were unknown to Mr. Brossart and Mr. McRobbie, and their interactions were in the context of a fight. Mr. McRobbie was intoxicated. It was on the basis of this brief, intense encounter that they described the males and participated in a subsequent photo line-up. [ 67 ] Mr. Brossart was shown nine photographs from which he selected two, representing the two people he thought were the assailants. One was a photo of Mr.

Dacey. [ 68 ] In R v Friesen , 2005 SKPC 68 , 265 Sask R 57 [ Friesen ], Judge Whelan addressed the recommendations of Justice Cory in The Inquiry Regarding Thomas Sophonow (2001), [ Sophonow Inquiry ] regarding photo line-up identification: para 11. [ 69 ] In R v Longman , 2013 SKPC 189 at para 12 [ Longman ], Judge Hinds cited Friesen , which set out the proper procedure to be followed when conducting a photo line-up. The recommendations address the appropriate compilation and nature of the photo pack as well as the proper conduct of the photo line-up.

Those recommendations are summarized as follows: The photo pack should contain at least 10 subjects. The photos should resemble as closely as possible the eyewitnesses’ descriptions of the suspect. If that is not possible, the photos should be as close as possible to the suspect. Everything should be recorded on video or audiotape from the time the officer meets the witness, before the photographs are shown through until the completion of the interview. It is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack

line-up. Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether the suspect’s photo is contained in the line-up. Before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately, sequentially and not as a package.

In addition to the videotape or audiotape of the line-up, there should be a form provided for setting out in writing and for signature, the comments of both the officer conducting the line-up and the witness. All comments must be noted and recorded verbatim and signed by the witness.

Police officers should not speak to eyewitnesses after the line-up regarding their identification or their inability to identify anyone. [ 70 ] While the recommendation of the Sophonow Inquiry was that a different police force other than that conducting the investigation should conduct the line-ups, the Court in Friesen considered that requirement to be unnecessary provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up . (emphasis mine) [ 71 ] In Longman , Judge Hinds found that while strict compliance by the police with the Sophonow Inquiry recommendations is not required, nonetheless in that case, aspects of the photo line-up procedure did not conform with key Sophonow recommendations.

The photos did not as closely as possible resemble the witness’s description of the suspect and the investigating officer, who was aware of the suspect’s identity, conducted the photo line-up.

The accused was found not guilty because the only evidence of identity was the eyewitness’s description and the identification from the problematic photo line-up. [ 72 ] In Friesen , the Court found that where the witness was allowed to view all of the photos together, repeatedly, rather than individually and sequentially and was shown two photo line-ups wherein the accused appeared both times, concerns were raised about the reliability of the identification. [ 73 ] The Crown relied on R v Gamble, 2010 SKPC 171 , 368 Sask R 76 where Judge Gray found the accused guilty even though the Sophonow Inquiry recommendations had not been fully complied with.

Nine photos were used, the line-up occurred at the witnesses’ homes and was therefore not audiotaped or videotaped. Nonetheless, the Court was satisfied the identification evidence was reliable as both witnesses identified the same accused in the photo line-up, both were certain in their identification, and their evidence was supported by other circumstantial evidence. [ 74 ] In the present case, Sgt. Bryden used nine photos rather than the recommended ten. He provided an instruction sheet to Mr. Brossart. While the officer invited Mr.

Brossart to read the instructions from the video of the line-up, it does not appear that Mr. Brossart did so. The officer did not advise Mr. Brossart that it was just as important to clear the innocent as to identify the suspect. [ 75 ] Sgt. Bryden was the investigating officer, he compiled the photo pack and conducted the line-up, which is contrary to the Sophonow recommendations. [ 76 ] Sgt. Bryden began by showing Mr. Brossart the photos sequentially, placing one on top of the other, rather than removing the previous photo before presenting the next one. After all photos were shown, Mr.

Brossart was asked if he wanted to view the two that had stood out for him again. That time, the officer placed photos #1 and #4 side-by-side, so that Mr. Brossart could view them both together. [ 77 ] Based upon my review of the array, the photos selected by Sgt. Bryden did not closely resemble the eyewitness description by Mr. Brossart or the suspect Joshua Dacey. Mr. Dacey’s skin tone on his photo is lighter than most of the other photos. [ 78 ] Although Mr. Brossart described one male as being either Native or Black, Sgt. Bryden admitted that he used only photos of African American descent.

It appears that the photos are of individuals with darker skin, except for photo #4, which was Mr. Dacey’s photo, and photo #7. Mr. Dacey’s photo stands out from the others with respect to skin tone and facial features. [ 79 ] At trial, Mr. Brossart described the two males as follows: “one had lighter—lighter, medium-dark skin and the other one had quite dark skin” [T74 lines 38, 39]. To Sgt. Bryden, Mr. Brossart described the shorter male as Native or Black with a flat nose. He described the taller male as Black or half-Black. To Cst. Bond, Mr.

Brossart described the shorter male as a Black male with lighter skin. He described the second male as having light skin. [ 80 ] It is clear from Mr. Brossart’s descriptions that the two males did not look alike. Yet, Mr. Brossart selected two photos, representing each of the two males, from the same photo pack. As such, Mr. Brossart thought he identified both males from the same photo line-up, even though his description of them, including their skin tone, was different. This indicates that the photos were not similar enough to Mr. Dacey’s photo regarding skin colour or other features. [ 81 ] In

summary, Sgt. Bryden used nine photos rather than ten. He did not use photos that were sufficiently similar to one another and to the suspect. He was the investigating officer and aware of the identity of the suspect yet arranged and conducted the line-up. He allowed Mr. Brossart to compare two photos. He did not inform Mr. Brossart of the importance of clearing the innocent. In these circumstances, taken as a whole, I find that the photo line-up was not properly administered. [ 82 ] There appeared to be some equivocation by Mr. Brossart during the line-up. After going through the photos once, he asked to

see photo #1 and photo #4 again. He looked at them side-by-side. He then stated, “I’m more sure about #4 than #1” and “these are the closest matches from what I’ve seen”. Mr. Brossart was only 80 percent certain of his identification of Mr. Dacey. In cross-examination, he admitted he had not been certain when selecting the photos. I find Mr. Brossart’s identification of Mr. Dacey from the improper photo line-up is not sufficiently reliable upon which a conviction could be based if that were the only evidence of identity. [ 83 ] At trial, Mr.

Brossart was asked if the person identified in photos #1 and #4 was in the courtroom. He testified that he believed one of them was. But, Mr. Brossart had selected photo #1 in relation to the tall male at the scene and #4 was the shorter male. In court, he did not specify and was not asked to specify which of the two was in the courtroom. Further, Mr. Dacey was the only individual other than counsel and court staff in the courtroom at the time. Circumstantial Evidence of Identity [ 84 ] There is, however, circumstantial evidence which must be considered. [ 85 ] I accept the following evidence of Cst. Chomyn: 1.

He stopped a vehicle 15 minutes after the incident at the Hose and Hydrant. 2. The stop occurred a driveable distance from the Hose and Hydrant. 3. The vehicle was driven by a female. 4. A male passenger in that vehicle identified himself as Joshua Dacey. 5. That male was wearing an all-blue Adidas track suit with white stripes. 6. He had blood on his body and clothing. 7. He had a scraped hand. 8. A second male was in the rear of the vehicle. 9. Cst. Chomyn described the second male as African American. 10. That male had long blonde and black dreadlocked hair that was large on top. 11.

That male pretended to be sleeping. 12. Cst. Chomyn was shown a photograph of Joshua Dacey and identified Joshua Dacey as the individual he had dealt with. [ 86 ] I accept the officer’s assumption that the male in the back seat was pretending to sleep. He had observed the male just seconds before the traffic stop, turn around to see the officer’s vehicle. I infer that the passenger was deliberately avoiding interaction with the officer. [ 87 ] According to Mr. Brossart’s testimony in court, the second male was described as being a Black male with “darker skin”. Cst.

Chomyn described the second male in the rear seat of the vehicle he had stopped as being African American. [ 88 ] According to Mr. Brossart, the taller male had a medium Afro haircut and may have been wearing a hat. According to Cst. Chomyn, the male in the vehicle had dreadlocked hair that was large on top. I am not satisfied that Mr. Brossart’s recollection regarding the male’s haircut is reliable. He observed the individuals for a brief period of time in a high intensity situation. [ 89 ] Mr. Brossart and McRobbie testified there were two females in the front and two males in the rear of the vehicle.

This would mean a female was driving the vehicle. The vehicle stopped by Cst. Chomyn was driven by a female. There were only three individuals in the vehicle when stopped by Cst. Chomyn fifteen minutes after the fight and Mr. Dacey occupied the front seat. It is reasonably possible that a fourth person was dropped off after the altercation. [ 90 ] When assessing circumstantial evidence, the question is whether that evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond a reasonable doubt standard. Alternative inferences must be reasonable, not just possible: R v Villaroman, 2016 SCC 33 , [2016] 1 SCR 1000 [ Villaroman ]. [ 91 ] Based upon all of the evidence, one reasonable inference is that Mr. Dacey was one of the two males involved in the incident in question. Mr. Dacey was located in a vehicle operated by a female in the middle of the night, 15 minutes after the event at the Hose and Hydrant, a drivable distance away.

Another male, who was of African American descent, was present in the vehicle pretending to be asleep thereby avoiding engagement with the police. Mr. Brossart identified the second male as “Black”. Mr. Dacey was wearing distinctive clothing, being a blue Adidas track suit with a white stripe, which was the clothing described by both Mr. Brossart and Cst. Chomyn. The clothing stood out to Mr. Brossart and Mr. McRobbie because it was the basis for the insulting gesture by Mr. McRobbie. Cst. Chomyn observed blood and a scraped hand on Mr.

Dacey, consistent with a recent physical altercation. [ 92 ] The evidence regarding the hairstyle of the second male differs between Mr. Brossart and Cst. Chomyn but is not completely inconsistent. Mr. Brossart said the second male’s hair was a medium Afro but that he also might have been wearing a hat. Although Cst.

Chomyn said the rear passenger had dreadlocks, he also described the hair as bushy or large on top. [ 93 ] Another inference that could be drawn from the evidence is that the similarities between the circumstances of the altercation and those of the subsequent traffic stop, including the track suit, the blood, the female driver, the second male, and the time of day were merely coincidental. However, alternative inferences must be reasonable, not just possible.

An inference that the circumstances in this case are coincidental is not reasonable, in light of human experience: Villaroman . [ 94 ] I find the only reasonable inference is that Mr. Dacey and a second male were the individuals who were involved in the altercation with Mr. McRobbie at the Hose and Hydrant and who were, minutes later, in a vehicle stopped by Cst. Chomyn. Is there sufficient evidence to establish that Mr. Dacey stabbed Mr. McRobbie? [ 95 ] I have found Mr. Dacey and another male were involved in the physical fight with Mr. McRobbie. I accept that Mr. Dacey was wearing the track suit at the time.

I must consider the evidence to determine which of the two males stabbed Mr. McRobbie. [ 96 ] During Mr. Brossart’s photo line-up interview, he told the officer that the male in the blue track suit said to him, “shut up or I’ll stab you too” from inside the vehicle as they were leaving. At trial, Mr. Brossart testified that it was the male who threw his hat on the ground who said to him “‘shut up or I’ll stab you too’ or something like that”. At trial he was not specifically asked which of the two males threw his hat. Neither was he asked to confirm his statement to Sgt.

Bryden, which was unsworn. [ 97 ] In court, when Mr. Brossart explained the video of the scene he testified as follows, found at T74 lines 24-27: … And yeah, so they -- they get out of there --- that guy threw my hat right there and I am walking towards my hat right now. I said to him, Hey, I didn’t do anything. And he said, Shut up or I’ll stab you too, or something like that. And so I grabbed my hat and I go back to the vehicle and we head back to my place. [ 98 ] One would have thought that a threat to “stab you too” would have been a signal that Mr. McRobbie had been stabbed.

Yet, it wasn’t until seven hours later, when the wound was discovered unexpectedly, that they came to that conclusion. In other words, the actions of Mr. Brossart and Mr. McRobbie were inconsistent with such a statement having been made. Mr. Brossart testified that his recollection of the events was “fuzzy”. [ 99 ] If the statement was made, logic would suggest that the individual who made it was the one who stabbed Mr.

McRobbie. [ 100 ] Despite the poor quality of the video, it is apparent that the shorter male was wearing clothing that was monochromatic or all one colour, consistent with the testimony about him wearing an all-blue track suit. The taller male appeared to be wearing light-coloured pants and a jacket. [ 101 ] It is also apparent from the video that the male wearing light-coloured pants threw Mr. Brossart’s hat. Therefore if, as Mr. Brossart testified, the individual who threw his hat said “shut up or I’ll stab you too” or words to that effect, it would have been the taller male, and not Mr.

Dacey, who did so. [ 102 ] In

summary, the evidence regarding the exact nature of the statement “I’ll stab you too” is unreliable. The altercation was of short duration and intense. Mr. Brossart testified the statement directed at him was “‘shut up or I’ll stab you’ or something like that ”, leaving it open to speculate about what exactly was said. In any event, Mr. Brossart testified that it was the individual who had thrown his hat who said those words.

It appears from the video, although of poor quality, that it was the male wearing light-coloured pants who threw the hat. [ 103 ] Therefore, on all of the evidence, I am not satisfied that Mr. Dacey uttered the words “I’ll stab you too”. [ 104 ] Cst. Chomyn observed blood on Mr. Dacey, but the presence of blood on his clothing or face would not necessarily establish Mr. Dacey as the stabber. The video shows that Mr. McRobbie delivered blows to both men. One inference is that the blood was Mr. McRobbie’s. Another reasonable inference is that the blood was in fact Mr. Dacey’s from punches he received from Mr.

McRobbie. [ 105 ] There is no evidence from which I could infer that it was Mr. Dacey rather than the taller male who stabbed Mr. McRobbie. [ 106 ] Further, the evidence does not suggest that Mr. Dacey would have been a party to the offence as contemplated by s. 23 of the Criminal Code . This was an unplanned, spontaneous skirmish provoked by Mr. McRobbie’s self-described offensive conduct. There is no evidence that Mr. Dacey was aware of the stabbing, given that even the victim and his friend did not know of it. [ 107 ] In all of the circumstances, I am not satisfied beyond a reasonable doubt that Mr.

Dacey assaulted Mr. McRobbie causing bodily harm to him by stabbing. [ 108 ] I therefore find Joshua Dacey not guilty of assault causing bodily harm. Given the unreliable nature of the evidence in relation to the circumstances that immediately preceded the fight, I am unable to convict Mr. Dacey of the lesser included offence of common assault.

_____________________________ D.C. Scott, J