R. v. Z.N.C. Date:, 2010 BCPC 383

Citation: R. v. Z.N.C. Date: 20101220 2010 BCPC 0383 File No: 5815-3C Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Z.N.C. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MACKAY Counsel for the Crown: J.R. Lester Counsel for the Accused: K.R. Beatch Place of Hearing: Chilliwack , B.C. Date of Hearing: December 16, 2010 Date of Judgment: December 20, 2010 [ 1 ] I am not sure if the evidence is clear that Mr. V. was the assailant here. To be fair, I do not perceive that any of the witnesses called by the Crown were being deliberately dishonest.

There are a number of concerns, obviously, on the evidence that do arise. There seems to have been some opportunity for possible contamination of the eyewitnesses due, unfortunately, to the way things unfolded. That is not a criticism directed either at the witnesses or the police who investigated this matter but there seemed to be some opportunity for them to discuss these events. There seemed to be some uncertainty. Mr. Beatch, in his cross-examination, brought this out.

From one statement, at least of several witnesses, to the next statement about what they did see, it is clear that the eyewitnesses that I heard from in evidence here were under the influence of alcohol. To what extent was not really established but that causes further concerns, of course, with the veracity of identification. [ 2 ] We have heard from Mr. V. and Mr. D., who were at the scene as well. The tenor of their remarks, particularly Mr. V.'s, is that Mr. V. self-identifies as the assailant.

He is presently facing charges as a result of this that have been, if I can put it this way, "upgraded" from assault to aggravated assault. He, of course, enjoys the benefit of the Canada Evidence Act , R.S.C. 1985, c. C-5, protection and the further benefit of applicable Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [ Charter ] sections in respect to his testimony in this case. I agree with Mr. Lester's observations, in some way, that it is troublesome and a pity that matters cannot be resolved at the same time but we are dealing with the law as it is. [ 3 ] Despite the suspicious circumstances, and despite some evidence here that implicates Mr. Z.N.C., I am not satisfied to the extent

that I must be in a criminal case that Mr. Z.N.C. is indeed the one who inflicted this brutal beating on Mr. U. That being the case, Mr. Z.N.C., stand up. You are acquitted of these charges. [ 4 ] I acquit you, as well, on Count 2. ______________________ R.C. MacKay Provincial Court Judge