R. v. Stelter Date:, 2011 BCPC 165

Citation: R. v. Stelter Date: 20110712 2011 BCPC 0165 File No: 81876-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL JOSEPH STELTER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: A. Yusuf Counsel for the Accused: G.J. Harris, Q.C. Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: November 29-December 1, 2010 and May 2-3, 2011 Date of Judgment: July 12, 2011 TABLE OF CONTENTS Heading Paragraph Number INTRODUCTION 1 WHAT THE CROWN MUST PROVE 9 THE CROWN’S EVIDENCE 13 The Altercation Generally 13 Justin Cameron 17 Cara Hillman 23 The Crown’s key witness 23 Her evidence-in-chief 27 Her evidence under cross-examination 29 Consistencies and inconsistencies with the evidence of other Crown witnesses 47 i. Colton McMyn 50 ii. Wesley Stoneburgh 54

iii. Kevin Davidson 62iv. Nyx Murray 67v. Tim Dorans 71vi. Santana Ilaender 75Pretrial Discussion Among Civilian Crown Witnesses 83The Police Statement Given by the Accused 93THE DEFENCE EVIDENCE 102Linda Peacock 103Daniel Stelter Himself 107ANALYSIS OF THE EVIDENCE BASED ON THE AUGMENTED R. v. W.D.FORMULATION 115 Generally 115Step No. 1 119Step No. 2 124Step No. 3 127Step No. 4 128DISPOSITION 139 INTRODUCTION [1] On April 3, 2009, a number of young adults gathered at the Maple Ridge residence of Nyx Murray (“Ms. Murray”), nominally to celebrate her 19th birthday.

The gathering was widely publicised—both by word of mouth and via social media. As a result, those whoattended were a combination of the friends and acquaintances of Ms. Murray, persons who accompanied her friends and acquaintances,and some strangers. Estimates of the number present ranged from 20 to 60. The accused, Daniel Joseph Stelter (“Mr. Stelter”), at mostan acquaintance of Ms. Murray, attended the party with his girlfriend at the time. [2] Alcohol was consumed in significant quantities and, eventually—late at night when it was dark—conflict erupted amongst someof the partygoers.

That conflict degenerated quickly into violence and one of the combatants in the resulting melee, the complainantJustin Cameron (“Mr. Cameron”), was struck on the head with a bat. He suffered a head injury that required six stitches to close a scalpwound; further, he missed 10 weeks of work and is left, as of the time of trial, with persistent headaches, a stutter, some memory loss andbalance problems. [3] The Crown alleges that Mr. Cameron’s assailant was Mr. Stelter, who also goes by the street name “Shwag”. Mr.

Stelter thusfaces charges, under Information 81876-2C (as amended), of assault causing bodily harm, contrary to s. 267(b), and assault with aweapon, contrary to s. 267(a), of the Criminal Code. The Crown proceeds summarily against him on both counts. [4] The Crown called the evidence of Mr. Cameron and various other witnesses who were present at the birthday party gone wrongwhere the brawl occurred. The Crown also called the evidence of the police officers who were summoned to the scene and whoinvestigated the events that had unfolded there. [5] Mr. Stelter testified on his own behalf.

He also relied upon the evidence of a civilian witness who testified regarding hisreputation for truthfulness and good character in the community. [6] That Mr. Cameron was struck on the head with a bat and sustained serious injuries on April 3, 2009, is not in question. Mr.Stelter denies that it was he who administered blows, with a bat, to Mr. Cameron’s head. He contends that those among the Crownwitnesses who say he did are either mistaken or gave untruthful evidence. [7] The subject events unfolded quickly, late at night and in less-than-ideal lighting conditions.

Most, but not all, of the witnesses tothose events were addled, to some degree, by the consumption of alcohol. The various combatants in the melee had their supporters andtheir detractors amongst those who observed and testified about it. In determining whether the Crown has proven its case against Mr.Stelter to the criminal standard—that is, beyond a reasonable doubt—I will need to consider, in addition to the defence evidence, theability of the Crown witnesses to make clear observations of a rapidly evolving and dynamic situation viewed late at night.

I will need toconsider as well the effects that alcohol had upon the reliability of their observations and their memories. And I must considerallegiances and loyalties that certain witnesses had to some of the combatants and the effects the same may have had on the evidencethey gave. [8] These considerations propel the issues of identification by eyewitnesses and credibility onto centre stage in this case and, withrespect to the eyewitness evidence in particular, the court is obliged to proceed with very great caution.

As Sopinka J. stated, in R. v.Burke, (SCC), [1996] 1 S.C.R. 474 at para. 52: “The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made bydirect visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of factmust be cognizant of ‘the inherent frailties of identification evidence arising from the psychological fact of the unreliability of humanobservation and recollection’: R. v. Sutton, (ON CA), [1970] 2 O.R. 358 (C.A.), at p. 368. In R. v.

Spatola, (ON CA), [1970] 3 O.R. 74 (C.A.), Laskin J.A. (as he then was) made the following observation about identificationevidence (at p. 82): Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibilityof powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may beerroneous....

The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction...” WHAT THE CROWN MUST PROVE [ 9 ] I will repeat that it is not in controversy between Crown and defence that someone applied force intentionally to Mr. Cameron, without his consent, causing him to suffer a hurt or injury that interferes with his health and that is neither transient nor trifling in nature. Mr. Cameron was seriously injured and required hospitalisation.

He testified that he suffers some persisting mental impairment as a result of the head injuries he suffered on the night in question. That evidence was neither challenged nor contradicted. [ 10 ] Nor is it in controversy that a “weapon” falling within the definition of that term provided in s. 2 of the Criminal Code —namely, a baseball bat—was employed to administer the blows to Mr. Cameron’s head that caused him to suffer the above-described injuries. [ 11 ] What is in controversy is the identity of the person who administered the blows to Mr. Cameron’s head with a bat and caused him to suffer bodily harm.

In order to convict Mr. Stelter of assault causing bodily harm, contrary to s. 267 (b), and assault with a weapon, contrary to s. 267 (a), of the Criminal Code , the Crown must persuade the court that the evidence in this case proves, beyond a reasonable doubt, that Mr. Stelter was that person. [ 12 ] While a great deal of evidence was given over the course of five days of trial in this matter, I will—after discussing the evidence about the party and the melee in a general way—focus in these reasons for judgment principally upon the evidence that bears upon: (

a) identification; (

b) the ability of Crown witnesses to make reliable observations going to identification and then retain them in memory; and (

c) other factors affecting witness credibility. THE CROWN’S EVIDENCE The Altercation Generally [ 13 ] There is broad agreement within the Crown’s evidence that the party that ultimately degenerated into violence was, in fact, a birthday party in name only. There were no gifts or cake or other trappings one might expect to find at a genuine birthday party. In truth Ms. Murray’s birthday served as the occasion or excuse for a social gathering and the consumption of significant quantities of alcohol. It took place at the home where Ms. Murray, Kevin Davidson (“Mr. Davidson”) and Mr.

Davidson’s girlfriend, Santana Ilaender (“Ms. Ilaender”), all resided. The house is located at 22357 St. Anne Street in Maple Ridge, British Columbia. People started showing up in the early-to-mid-evening and hostilities commenced not long before midnight. In the course of those hostilities, the complainant Mr. Cameron was struck on the head with a bat. [ 14 ] Mr. Cameron is Ms. Murray’s cousin. He attended the party in the company of four friends—his girlfriend Cara Hillman (“Ms. Hillman”), Colton McMyn (“Mr. McMyn”), Wayne Stoneburgh (“Mr. Stoneburgh”) and Tim Dorans (“Mr. Dorans”).

The evidence persuades me that Mr. Cameron was invited by Ms. Murray, in part to serve informally as a security person. He and some of his companions had begun drinking before going to the party. [ 15 ] At a certain point during the later part of the evening, Mr. McMyn said or did something while standing outside on the back deck of the house that annoyed certain others at the party. In the ungrammatical argot of these times, he “disrespected” them. Those others sought to have him leave. Mr.

McMyn put up some resistance, indicating a willingness to leave but only if he could first get his alcohol and other belongings to take with him from inside. The others declined to allow him to do that. The interaction between Mr. McMyn and the others quickly evolved into a scuffle and, just as quickly—as others became aware of it and fell in on either Mr. McMyn’s side or the side of those seeking to have him leave the property—a melee resulted in the course of which Mr.

Cameron was struck with a bat. [ 16 ] In outlining the evidence of the Crown witnesses, I shall here and there offer some qualitative assessments of their testimony and its credibility. Justin Cameron [ 17 ] Mr. Cameron—the complainant—had little helpful evidence to offer with respect to the central issue in contention in the case, namely, the identification of his assailant. His recollection of the circumstances overall was generally very shaky.

Indeed, at first during his direct examination, he said that he couldn’t remember anything that happened after he had been dancing inside the house before conflict erupted ( Transcript , November 29, 2010, p. 13). However, upon further questioning by Crown counsel he came to recall a few details about the evening’s activities. [ 18 ] Mr. Cameron was clear and consistent in his contention that he did not see the person who struck him. He testified that while intervening to prevent others from attacking his friend Mr.

McMyn he took three blows—to the back, the side and the front of his head— from an assailant who stood behind him and who he never saw. [ 19 ] The blows came, he said, just after he had been scuffling with red-headed and red-bearded individual whom he denied knowing ( Transcript , November 29, 2010, p. 14). As I shall outline presently, I have found as a fact that that person was Mr. Davidson. Curiously, Mr. Cameron made it appear in his testimony that he and Mr. Davidson did not know each other.

He referred to the individual he scuffled with throughout his testimony as being someone who was about his own height, weighing approximately 220 lbs., and having red hair and a red beard ( Transcript , November 29, 2010, pp. 14-15). [ 20 ] I find Mr. Cameron’s denial of prior knowledge of Mr. Davidson peculiar given the facts that:

(

a) his cousin and Mr. Davidson’s room mate, Ms. Murray, testified that the two knew each other “from before”: Transcript , November 30, 2010, p. 94; and (

b) Mr. Davidson himself testified that he knew Mr. Cameron and had met him once before: Transcript , November 30, 2011, pp. 48 and 64. [ 21 ] Because another Crown witness, Ms. Hillman, also made similarly peculiar denials of knowledge of Mr. Davidson I shall come back to that subject further on in these reasons. [ 22 ] I return to what Mr. Cameron could recall about the assault of which he was the victim.

Apart from seeing “a flash of something metallic and red” ( Transcript , November 29, 2010, p. 14)—which he later agreed on cross-examination was a metallic bat “with red on it” ( Transcript , November 29, 2010, p. 31)—Mr. Cameron could say nothing else (other than to confirm during cross-examination that he was not struck with the bat on or behind his knees). Cara Hillman The Crown’s key witness [ 23 ] I think it fair to characterise Ms. Hillman—the girlfriend of the complainant, Mr. Cameron—as the Crown’s key witness. She was the first Crown witness to be called to testify after Mr. Cameron.

The remaining Crown witnesses were, for the most part, a supporting cast. Ms. Hillman gave, by far, the most detailed evidence regarding the bat-related assault. She also testified, in chief, that Mr. Stelter was known to her and that she recognised him when she first saw him at the party. On her evidence, she later saw him strike Mr. Cameron on the head with the bat at least twice. [ 24 ] Ms. Hillman’s uncontradicted evidence-in-chief was that she was pregnant on April 3, 2009, and that for that reason she had limited herself to drinking only half of one bottle of beer.

In this respect, her observational powers and powers of recollection can be considered to have been less compromised by the effects of alcohol than those of the others who attended the party. Of those other participants, she said, “Just about every single person at that party had too much to drink”: Transcript , November 29, 2010, p. 74. Ms. Murray gave evidence to a similar effect: Transcript , November 30, 2010, p. 76. [ 25 ] Ms.

Hillman’s testimony during her direct examination was that while it was dark there was sufficient light coming from the building that was located on one side of the party house’s gravel driveway, and from the lights on in the house, to enable her to see the relevant events as they unfolded: Transcript , November 29, 2010, p. 53. She also testified that when she first saw Mr. Stelter in his running approach toward Mr. Cameron and the other combatants she was only 15-20 feet away from him (pp. 59-60). [ 26 ] These aspects of Ms.

Hillman’s evidence-in-chief—subject of course to what transpired in cross-examination, what other witnesses said and considerations going to credibility (hers and others’)—made her the centrepiece of the Crown’s case against Mr. Stelter. I shall therefore give particular emphasis to Ms. Hillman’s evidence in these reasons and a shorter treatment to that of the other Crown witnesses, stressing those areas where their testimony either corroborated or contradicted the testimony of Ms. Hillman. Her evidence-in-chief [ 27 ] I summarise Ms.

Hillman’s direct testimony, relevant to the issue of identification, as follows: (

a) she was smoking on the party house’s back deck and from there witnessed the altercation when it first developed between Mr. McMyn and Mr. Davidson. Very quickly, two other males whom she did not know came to Mr. Davidson’s assistance when matters began to unravel; (

b) she confirmed that Mr. Stelter was not involved in the early stages of the altercation in any way; (

c) she said that the number of combatants quickly grew as, through the course of a good deal of pushing, shoving, punching and the like the group moved toward and then congregated against the wall of the building that runs along the side of the driveway opposite the house. Most combatants aligned against Mr. McMyn and his supporters; those who joined the melee on his side were limited to Mr. Cameron, Mr. Stoneburgh and Mr. Dorans; (

d) she could see that, as matters deteriorated, Mr. McMyn’s nose had begun to bleed; (

e) she said that, because she was concerned that Mr. McMyn could come to serious harm without assistance, she ran inside the house from the outdoor deck and alerted Mr. Cameron and Mr. Stoneburgh to the fact that Mr. McMyn was under attack and that after being so advised, they ran out to lend him assistance and thus joined in the fray; (

f) Ms. Hillman did not join in with the fighting but cried out to the others to stop it. She said she tried to pull Mr. Cameron and Mr. Stoneburgh out of the fight, without success. She said that at one point she was pushed against the concrete wall herself by Mr. Cameron and told by him to stay out of the melee; (

g) she took steps to try to pull and lead some females (not including Ms. Murray) who were beginning to get involved away from the fighting. She led them in the direction of the road at the top of the gravel driveway; (

h) she said that while standing on the front yard where it meets the driveway, she saw Mr. Stelter run past her toward the combatants, carrying a bat. When he passed by her he was only 15-20 feet away; (

i) she was acquainted with Mr. Stelter (although then she only knew him by his street name, “Shwag”). She had seen him earlier at the party and thus recognised him when, she said, he ran past her and attacked Mr. Cameron with a red, metallic bat; (

j) she testified that she had noted upon first seeing him on the night in question that Mr. Stelter was wearing a white tee-shirt with an

RDS logo on it, blue jeans and white skater shoes. She also recalled that the assailant who attacked Mr. Cameron with the bat—whom she knew to be Mr. Stelter—was wearing a white tee-shirt; (

k) she had no doubt whatsoever that it was Mr. Stelter who ran past her and struck Mr. Cameron with the bat; (

l) Ms. Hillman did not know where Mr. Stelter had come from when he appeared with the bat and ran toward Mr. Cameron and the other combatants; (

m) until Mr. Stelter arrived, she had seen no bats or other weapons at the party—either in the possession of Mr. Stelter or any other person—and her attentions were focused upon the combatants exclusively throughout the melee (except for a brief period when she was trying to lead the females away from the fighting); (

n) she said that when she saw Mr. Stelter run past with the bat toward the combatants, Mr. Cameron was still fighting with Mr. Davidson. She gave chase but was unable to catch up or intervene before Mr. Stelter, using a two handed swing, administered at least two blows with the bat to Mr. Cameron’s head—the first to the back of his skull and the second to the top of his head, near the hairline where he required stitches. He did so from a position at Mr. Cameron’s side; (

o) she testified that she had her eyes on Mr. Stelter throughout the entire time she saw him wielding the bat and then using it to strike Mr. Cameron; (

p) Ms. Hillman testified that Mr. Cameron continued fighting with Mr. Davidson after receiving the first blow and, after being struck a second time, he rose up slowly from a kneeling position and climbed up onto a nearby car. His head was bloodied and he yelled “Come on”, presumably to his adversaries; (

q) she said that after he had struck Mr. Cameron with the bat Mr. Stelter was tackled to the ground by Mr. Stoneburgh; and (

r) at that point the police arrived, Mr. Cameron jumped off the car and was “taken down” by the officers and put in handcuffs while face down on the ground. On her account he remained unconscious for 15 minutes thereafter. [ 28 ] Taken by itself, Ms. Hillman’s direct testimony presents damning evidence from a witness largely unaffected by alcohol who, from a clear vantage point at close quarters and under tolerably good lighting conditions, clearly identified Mr. Stelter as the person who assaulted Mr. Cameron with a bat.

However, that direct testimony cannot be taken by itself; rather, it must be considered in context of Ms. Hillman’s evidence on cross-examination, as well as all of the other evidence led at trial, including the defence evidence and evidence that touches upon her credibility and that of all of the other witnesses. Her evidence under cross-examination [ 29 ] During her cross-examination, a number of exchanges occurred between Ms. Hillman and Mr. Stelter’s counsel that called her credibility into question. I am bound to say that I found Ms. Hillman to be, at times, an argumentative witness.

She left me with the impression that she considered it to be her role to be to do all she could to assist the Crown in securing the conviction of Mr. Stelter for the assault of her boyfriend. [ 30 ] Ms. Hillman injured her credibility when she stubbornly insisted that her recollection of events, including the events at issue in this case, does not fade with the passage of time ( Transcript , November 29, 2010, pp. 68-69). When pressed on that point, she allowed that when on the stand on November 29, 2010, she could accurately recall 90% of what had transpired on April 3, 2009.

However, there then followed a series of questions and answers that revealed that, like all humans, Ms. Hillman has a fallible memory. Important divergences were revealed between what she told police when she gave her statement an hour or two after the melee at Ms. Murray’s party and what she had said about the subject events during her examination-in-chief. [ 31 ] I will outline, below, some of the inconsistencies between Ms. Hillman’s evidence at trial and her police statement taken shortly after the subject events. Individually they are of varying importance. None is definitive.

However, cumulatively, they reveal lapses of memory coupled with an inclination to reconstruct, elaborate and embellish. [ 32 ] Of concern was the fact that Ms. Hillman appeared to lack the commitment to accuracy and completeness that is ordinarily commensurate with the giving of statements to police as part of criminal investigations. While she acknowledged that she appreciated the importance of being truthful and accurate, she brushed off omissions and inaccuracies in her police statement.

With regard to one detail that she remembered differently at trial and in which her evidence-in-chief conflicted with her police statement, Ms. Hillman said breezily that the true fact “... must have slipped [her] mind” when she gave the statement ( Transcript , November 29, 2010, pp. 71-72). At another point when confronted with missing details in her police statement, she allowed that when describing the events of April 3, 2009, she didn’t tell the police “everything … to a ‘T’” ( Transcript , November 29, 2010, p. 82). [ 33 ] All of this undermined, to a degree, the trust that I am able to place in Ms.

Hillman’s testimony overall. [ 34 ] I turn now to specific examples. [ 35 ] Ms. Hillman recalled giving her police statement to a male officer but had to concede, during cross-examination, that the interviewing constable had been female. [ 36 ] She said during her direct examination that Ms. Murray’s father had driven her, Mr. Cameron and the rest of their group to the party; in her statement, she told the interviewing constable that they had walked there. The version she clung to under cross-examination was the version she gave during her evidence-in-chief [ 37 ] Significantly, Ms.

Hillman told the police a number of things that reflected negatively upon Mr. Stelter. For example, she said that Mr. Stelter was “hammered” when he was at the party and that “[h]e had at least a two-six, like a bottle of vodka in him that I

know”. In her statement she also said that when he “first showed up at the party [Mr. Stelter] was yelling and stuff”. No other witnesscorroborated those assertions and, when cross-examined on it at trial, she admitted that Mr. Stelter was already at the party when shearrived (and so she couldn’t have seen him or what he was doing at the time he “first showed up”). She also retreated from her policestatement when she admitted that she hadn’t seen him drinking and that she didn’t know what particularly he had been drinking. And sheagreed with cross-examining counsel that when she recalled seeing him run toward Mr.

Cameron and the other combatants with a bat,Mr. Stelter did not display signs of impairment but, rather, that he ran “well” (Transcript, November 29, 2011, pp. 73-75). Thus, all ofthe negative characterisations of Mr. Stelter that appear in Ms. Hillman’s police statement concerning events leading up to the actualassault—the references to his drunkenness and his noisy belligerence, that is—were effectively neutralised. [38] Mr. McMyn—the individual whose conduct first triggered the conflict that ultimately degenerated into a multi-participant brawl—is, on Ms. Hillman’s evidence, her “best friend”.

She seemed anxious to portray him in the best light possible. While sheacknowledged that on the night in question Mr. McMyn had been “disrespectful” to others at the party, she was careful to say, as well,that he was not by nature given to “disrespecting” people and being offensive.

When she was asked whether she thought that alcoholmay have unleashed his disrespectful behaviour on the night in question she first denied it, then became evasive, and then—in an abruptabout face—she testified that it was excessive alcohol consumption that had led her best friend to say the “disrespectful things” that gotthe melee started: Transcript, November 29, 2010, p. 79. The shifts and wavering evident in that and other exchanges revealed to methat Ms. Hillman’s evidence was neither internally consistent nor unaffected by her loyalties those who were involved in the brawl inwhich Mr.

Cameron eventually sustained his injuries. [39] During her evidence-in-chief, Ms. Hillman said she was standing on the driveway, near where the corner of the house meets it,when she saw Mr. Stelter run past with a bat toward Mr. Cameron. During cross-examination, however, she admitted that she was, infact, further away when she made that observation, standing on the driveway but “close to the road” (Transcript, November 29, 2010).

If the latter evidence is to be accepted, then her observations were made at a greater distance than she contended during her directexamination and they must, accordingly, be treated with greater caution. [40] Ms. Hillman testified at trial that while she did not know where Mr. Stelter had come from when she saw him run past her withthe bat, she was “sure” that he didn’t come out of the house. Yet in her police statement on that point, Ms. Hillman—while equivocatingto a degree—said that she thought that Mr. Stelter had come out of the house with the bat.

On further questioning at trial she had toadmit that she wasn’t sure where the man she identified as Mr. Stelter had come from: Transcript, November 29, 2010, pp. 89-90. [41] Because, in so many areas, the details of the events portrayed in Ms. Hillman’s testimony changed on successive tellings, in myview the court is justified in turning a sceptical eye upon Ms. Hillman’s assertion that her memory does not degrade with the passage oftime the way other people’s memories typically do. [42] Ms. Hillman entertained no doubt at all about the accuracy of her identification of Mr.

Stelter as the one who struck Mr.Cameron with the bat: “Q Okay. Any doubt at all it was Daniel? A No doubt. Q All right. A Whatsoever. Q Sorry? A No doubt whatsoever.” (emphasis added) Transcript, November 29, 2011, p. 60 [43] However, as the Supreme Court of Canada held in R. v. Hibbert (2001), 2002 SCC 39 , 163 C.C.C. (3d) 129 (S.C.C.), acourt’s opinion of the reliability of a witness’s eyewitness identification ought not to be unduly influenced by the fact that the witnessexpresses great confidence in that identification evidence.

Arbour J. noted, in Hibbert, that there is a “very weak link between theconfidence level of a witness and the accuracy of that witness” (at p. 148). [44] The evidence at trial places Mr. Davidson—Ms. Murray’s room-mate—under some degree of suspicion as the possible assailantof Mr. Cameron. He, for example, admitted to fetching a bat from the house to brandish in an effort to persuade the participants in thebrawl to cease their fighting and leave. I consider it significant that, like Mr. Cameron, Ms. Hillman denied knowing who Mr. Davidsonwas.

She also denied knowing his name, where he lived, or that he lived at Ms. Murray’s house (see, for example, Transcript,November 29, 2010 at p. 76). Like Mr. Cameron, she repeatedly referred to Mr. Davidson as the “redhead” or the man with the “redhair” and the “red beard”. That was the burden of her testimony, even though the evidence also establishes that: (

a) Ms. Murray is the cousin of her boyfriend, Mr. Cameron; (

b) Ms. Murray is “like, family” to Ms. Hillman (Transcript, November 29, 2010, p. 83); (

c) Ms. Murray and Mr. Davidson had known one another for six to eight years at the time of the incident (Transcript, November 30,2010, p. 77); (

d) Ms. Hillman and Mr. Cameron attended the party at the house that Ms. Murray shared with Mr. Davidson and his girlfriend. Theycame at Ms. Murray’s invitation; and (

e) on Mr. Cameron’s evidence, he had attended in part “as a comfort thing” for Ms. Murray, whom he had had to assist with difficulties

at parties on prior occasions: Transcript , November 29, pp. 23 and 26. [ 45 ] I cannot accept that Ms. Hillman was as unfamiliar with Mr. Davidson as she sought to convey in her testimony at trial. I reach that conclusion in part because her evidence was not seamless on this issue. Ms. Hillman was clear that when conflict first erupted as a result of Mr. McMyn’s alcohol-fuelled disrespectful conduct, the other party to that conflict was Mr.

Davidson (even though she was at pains to refer to him then and throughout her testimony as the “this guy with red hair and with a red beard, red facial hair”— Transcript , November 29, 2010, p. 50). But, significantly in my view, in her police statement she said that Mr. McMyn had first had words with “a guy who lived there” ( Transcript , November 29, 2010, p. 83). She was quick to say, when questioned during cross-examination about that part of her statement, that while “that was what [she] thought” when giving the police statement, that “that was just a guess”. [ 46 ] If Ms. Hillman did know Mr.

Davidson—the person who lived with Ms. Murray who, in turn, was “like, family” to Ms. Hillman and was her boyfriend’s cousin, then it is at least a reasonable surmise that she might have some motive—that is, feel some impulse—to shield him from suspicion, if not criminal liability, for the assault at issue in this case. I cannot conceive of any other reason for Ms. Hillman to deny so assiduously any knowledge of Mr. Davidson’s name, place of residence or connection with Ms. Murray at trial, despite having earlier acknowledged in her police statement that he was the “guy who lived [at Ms. Murray’s house]”.

Again, the spectre of loyalties and allegiances—in this case, to the room-mate of a person so close to Ms. Hillman that she considers her to be “family”—as a factor potentially influencing Ms. Hillman’s testimony arises for consideration as part of the court’s assessment of her eyewitness identification evidence and her credibility overall. Consistencies and inconsistencies with the evidence of other Crown witnesses [ 47 ] Before beginning my discussion of the specific ways in which the testimony of other Crown witnesses supports, and does not support, the evidence of the Crown’s key witness, Ms.

Hillman, I pause to note again my finding that Ms. Hillman was in a better position to make reliable observations and retain them in memory than any others present because of her minimal ingestion of alcohol on the evening of April 3, 2009. She was also the only witness to contend that she observed the brief, allegedly assaultive, encounter between Mr. Stelter and Mr.

Cameron in its entirety, and from a nearby vantage point as an observer of, and not a participant, in the melee. [ 48 ] In weighing the other Crown witnesses’ evidence, I must have regard to their alcohol consumption and its effects on their ability to make reliable observations and then retain them in memory. I must also consider the situational factors favouring, and militating against, the making and retaining in memory of reliable observations—such as, for example, proximity to the subject events, involvement in those events, the emotional effects of the same, and the like.

And I must also take into account the loyalties and allegiances that may exist between and among the various players. [ 49 ] The evidence of the witnesses whom I have characterised as the “supporting cast” of Crown witnesses forms part of the Crown’s case against Mr. Stelter. While, as I have noted, the Crown’s case rests most heavily on the testimony of Ms.

Hillman, I must evaluate the Crown’s identification evidence in its entirety in order to determine—after making the appropriate adjustments to weight to reflect the factors that influence the reliability and trustworthiness of the testimony of each of the witnesses (including Ms. Hillman), both positively and negatively—whether the evidence as a whole persuades me of Mr. Stelter’s guilt beyond a reasonable doubt. i. Colton McMyn [ 50 ] Mr. McMyn admitted that it was his disagreement with others at the party that formed the genesis of the conflict that quickly degenerated into a melee.

As to his state of impairment at the time he said that he “… wasn’t falling down drunk, but [he] was certainly intoxicated” having consumed about half of a 26 oz. bottle of gin: Transcript , November 29, 2010, p. 95. Thus, when asked to give a narrative description of the melee, he characterised his recollection as being “just flashes, really” (p. 100). He qualified some of his testimony by referring to the fact that it was dark at the relevant time and thus difficult to report certain details of his observations.

For this reason he could not be sure about the colour of a bat he saw and offered that it might have been pink or red (p. 102). All of this suggests that Mr. McMyn’s evidence regarding his observations should be approached with great care. [ 51 ] Mr. McMyn testified in chief that the first person he saw with a bat may have been Mr. Davidson, but he also allowed that it “might not have been him”. He adverted rather tentatively, in his direct examination, to the possibility of there being more than one bat in use during the brawl: Transcript , November 29, 2011, pp. 100-101.

However, on cross-examination he was taken to his statement to police where, shortly after the incident, he showed no equivocation and declared confidently that there were multiple people with multiple bats involved in the incident: Transcript , November 29, 2010, pp. 108-110. [ 52 ] Mr. McMyn said that someone—possibly Mr. Davidson—struck him on the neck with the bat (p. 101). Neither Ms. Hillman, nor any other witness, reported seeing that. [ 53 ] Despite being in the thick of the battle throughout and up close to the action, he (unlike Ms. Hillman) did not see anyone strike Mr.

Cameron with a bat—either before or after he got down off the car (although he did confirm the evidence of some other witnesses that Mr. Cameron was bleeding from the head when he was up on the car: Transcript, November 29, 2010, p. 108). ii. Wesley Stoneburgh [ 54 ] It will be recalled that Mr. Stoneburgh attended the party as a member of the group of friends that consisted of Mr. Cameron, Mr. McMyn, Mr. Dorans and Ms. Hillman. He had previously made Mr. Stelter’s acquaintance—they shared an interest in tattoos—but they were not friends as such. [ 55 ] Mr.

Stoneburgh admitted to having had approximately 10 drinks and a somewhat shaky memory. Unlike Ms. Hillman who referred to the lighting conditions as having been generally good for making her observations, Mr. Stoneburgh testified that he couldn’t describe any of the other combatants who were unknown to him because “it was pretty dark and this happened really fast” ( Transcript , November 30, 2010, p. 5). These factors diminish the reliability of his observational evidence.

[56] Mr. Stoneburgh’s evidence parts company with that of Ms. Hillman in some other, quite important ways. For example, whileMs. Hillman reported no observations of Mr. Davidson leaving the fighting and then returning with a bat (despite keeping the meleeunder almost continuous observation), Mr. Stoneburgh—himself a combatant—testified that he did observe that. He also testified thatMr. Davidson swung the bat, first hitting Mr. Dorans on the shoulder and then hitting him (Mr. Stoneburgh) in the hand, followingwhich he and Mr. McMyn wrestled Mr.

Davidson to the ground, losing sight of the bat: Transcript, November 30, 2010, pp. 4-5. Noneof that figured in the testimony of Ms. Hillman. [57] On Mr. Stoneburgh’s evidence it was only after more people joined the fray, and after he had pulled some of the attackers offMr. Cameron, that Mr. Cameron climbed up on a car and began yelling at and taunting the crowd. During that time he testified that heand Mr. Stelter had a short conversation about trying to persuade their respective allies to cease hostilities. Then, Mr. Stoneburgh stated,Mr.

Cameron jumped down from the top of the car and, very soon thereafter, he saw Mr. Stelter rush up and strike Mr. Cameron on thehead with the same, small red bat that Mr. Davidson had previously wielded. He said he had no doubt that the individual who performedthat act was Mr. Stelter. Mr. Stoneburgh further testified that after that happened he grabbed Mr. Stelter around the neck and broughthim to the ground and kept him there until someone pulled him out of his grip: Transcript, November 30, 2010, pp. 5-10. Again, the batgot away but Mr.

Stoneburgh doesn’t know how or where it went. [58] I note that on this account Mr. Stelter struck Mr. Cameron with a bat after he had jumped down from the top of the car, and notbefore as described by Ms. Hillman. But I also note that Mr. Stoneburgh was firm in his testimony, during both his direct and his cross-examinations, that Mr. Cameron was already bleeding from the top of his head by the time he stood on the car. [59] Mr. Stoneburgh (like Mr. Cameron) gave testimony to the effect that the two of them ran outside when they saw that Mr.McMyn was in trouble.

Neither said that their attentions were drawn to the trouble by Ms. Hillman (as she testified). [60] More importantly, Mr. Stoneburgh testified that after wresting the bat away from Mr. Davidson, he devoted himself to pullingother aggressors off Mr. Cameron and that that process continued up to the time Mr. Cameron climbed up on the car: Transcript,November 30, 2010, pp. 23-27. This part of Mr. Stoneburgh’s account contains no reference to anyone—including Mr. Stelter—strikingMr. Cameron with a bat at any time before he climbed up on the car. In this respect his testimony was wholly inconsistent with that ofMs.

Hillman whose sworn evidence was that Mr. Stelter struck Mr. Cameron on the head with a bat before he climbed up on the car. [61] Bizarrely, Mr. Stoneburgh testified that after the fight had ended he noticed the bat lying on the ground and, rather than leaving itwhere it was to assist the police in its investigation, he tossed it toward some bushes—out of anger, he said—thereby altering itscondition (by, among other things, putting his own fingerprints on it) and its position relative to where it had finally come to rest duringthe fray.

This evidence had the appearance of being self-serving testimony calculated to afford an innocent explanation for any forensicdata that might surface linking Mr. Stoneburgh directly to the subject bat. iii. Kevin Davidson [62] Mr. Davidson—a red-headed and red-bearded man who I find on the totality of the evidence to have been the red-headed andred-bearded resident at the house where Ms. Murray and he were hosting the party—acknowledged that Mr. Stelter was among the“mutual friends between Nyx and [him]” who attended by the party invitation: Transcript, November 30, 2010, pp. 46-47.

He admittedthat, at the relevant time on the evening of April 3, 2009, he (Mr. Davidson) was intoxicated by alcohol. For this reason, and for theadded reason that he is under some suspicion himself as an active, bat-wielding participant in the melee (and thus was not occupiedsolely with making dispassionate observations from a distance), the reliability of his observational testimony must be assessed carefully. [63] Mr. Davidson’s description of his own involvement in the altercation confirmed that he and Mr. McMyn got involved in ashoving match after Mr. McMyn had become loud and rude.

That degenerated into a fight when Mr. Cameron joined in, on the side ofMr. McMyn, and then others became involved. [64] Mr. Davidson testified that he extracted himself from the fray and ran back to the house to fetch the small red bat that he keptthere. His evidence was that he then returned, holding the bat in a threatening way and yelling at people to leave. Mr. Davidson saidthat at that point he was attacked by a number of people, and was placed in a chokehold by someone behind him.

His evidence was thathe handed the bat off to someone—also behind him—whom he didn’t see but whom he believed would not have been his adversary. Hisadversaries continued to punch and otherwise fight with him until, he said, he was able to extract himself from the fray again to run backinto the house, this time to wash his face and catch his breath. Mr. Davidson’s evidence was that when he got back outside, he saw Mr.Cameron with a bloodied face, first standing on a car and then climbing down. He saw no one strike Mr. Cameron with a bat at any timeand shortly after Mr.

Cameron climbed off the car the police were present: Transcript, November 30, 2010, pp. 50-55, 67-68. [65] As I have noted, Mr. Davidson had no eyewitness evidence to give regarding anyone striking Mr. Cameron with a bat, but hisevidence regarding his own conduct on the night in question and, in particular, his testimony concerning his use of a bat during theevening’s hostilities, is not without its problems. I find it difficult to credit his testimony that, in the course of a violent melee that beganwith his own confrontation of Mr. McMyn and quickly led to his coming under heavy attack, Mr.

Davidson was able to take two “timeouts”—one to fetch a bat and another to freshen up. I find it even more difficult to accept that when attacked while wielding the bat in athreatening manner for the purpose of frightening the unwelcome participants away, he would release the bat to another person behindhim whom he could not even see, believing that that person was likely a friend and not an enemy for the purposes of the fight thenunfolding. No other witness testified to having seen that occur. Mr.

Davidson gave his testimony in this regard with confidence, to besure, but he also said, under oath, that immediately after he released the bat into an unknown person’s hands, he was grabbed frombehind and placed in a choke hold: Transcript, November 30, 2010, p. 52. [66] In the language of O’Halloran J.A. in Faryna v.

Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), Mr.Davidson’s evidence regarding his own actions involving the bat lacks harmony with “the preponderance of the probabilities which apractical and informed person would readily recognize as reasonable in that place and in those conditions” (at p. 357). It seems highlyunlikely that an individual under attack in a spreading brawl who has gone to the trouble to run inside to obtain a weapon to threaten andpersuade the participants to cease their fighting and leave would, when under further direct and personal attack, voluntarily surrender a

potentially lethal weapon to an unknown person based on a surmise that because that person is behind him, he or she person is likely an ally—an alleged surmise that was quickly proven faulty by the fact that he was immediately thereafter attacked from behind . iv. Nyx Murray [ 67 ] Ms. Murray—the person hosting the party to commemorate her birthday—frankly conceded that at the relevant time she was drunk and that some details were lost to her memory for that reason.

Her testimony must be assessed in that light, just as it must be assessed in the light of the fact that for at least a part of the melee she was involved as a participant and thus less able, by reason of distractions and high emotion, to make reliable observations. [ 68 ] Ms. Murray’s evidence was that while Mr. Cameron and Mr. Davidson were fighting, with Ms. Murray and others trying to restrain Mr. Cameron and others involved on Mr. Cameron’s side, a black bat appeared “out of nowhere”.

She said that she was struck herself twice with the bat—once on the back of the head and once in the chest—by someone wearing a white tee-shirt. She lost consciousness briefly thereafter and when she “came to” Mr. Cameron was in handcuffs on the ground: Transcript , November 30, 2010, pp. 83-85. She was clear that she “didn’t see [Mr. Cameron] get hit at all with the bat”: ( Transcript , November 30, 2010, p. 88). [ 69 ] No other witness to the melee, including Ms. Hillman, testified to having seen anyone strike Ms. Murray with a bat. [ 70 ] Ms. Murray was well familiar with the accused, Mr.

Stelter, and knew he was at the party (although she could not recall what he was wearing). Importantly, however, she said she did not remember seeing him outside at all during the subject brawl: Transcript , November 30, 2010, p. 87. v. Tim Dorans [ 71 ] In his testimony, Mr. Dorans described himself as the best friend of Mr. McMyn, the individual whose refusal to leave after some uncivil exchanges with others present set the melee in motion. By the time the brawl had begun, he said, he had consumed somewhere between four and 10 bottles of beer.

Thus, alcohol consumption will inevitably have affected his observational powers and his memory, as Mr. Dorans himself readily agreed: Transcript , November 30, 2010, pp. 118-121. [ 72 ] Mr. Dorans recalled seeing the fight begin. He said he came briefly to Mr. McMyn’s assistance (to wipe blood off his face with a tissue). No other witness referred to having seen that interaction. His evidence was that he then ran back to the house to get his and Mr. McMyn’s belongings. While on his way to the house he saw a man with red hair—Mr. Davidson—come running down the stairs with a baseball bat in his hand. Mr.

Dorans testified that he questioned what Mr. Davidson was doing and, in response, Mr. Davidson swung the bat at him and hit him on the hand. He made no mention of Mr. Davidson striking Mr. Stoneburgh with the bat at that same time and, to that extent at least, his account diverged from that of Mr. Stoneburgh. [ 73 ] After striking him on the hand, Mr. Dorans testified, Mr. Davidson continued running toward the other combatants brandishing the bat. Mr. Dorans continued on into the house to get the belongings. When he got back outside he observed Mr.

Cameron standing on top of a car with blood pouring down from his head, shouting: Transcript , November 30, 2010, pp. 107-115. He therefore approached Mr. Cameron, he said, and led him down from the car by the hand. (Here again, no other witness, including Ms. Hillman, referred to having seen that interaction.) Soon thereafter, the police arrived: Transcript , November 30, 2010, pp. 112-115. [ 74 ] Mr. Dorans was clear in his testimony (at p. 116) both that he did not see anyone strike Mr.

Cameron after he had come down from the car and that that is something that he would have seen and remembered if it had happened. This is directly contradictory of Mr. Stoneburgh’s evidence to the effect that Mr. Stelter struck Mr. Cameron on the head with the bat after he had climbed down from the car. vi. Santana Ilaender [ 75 ] Ms. Ilaender is Mr. Davidson’s girlfriend. She lived at the house on St. Anne Street and was present there for Ms. Murphy’s birthday party when the melee occurred. She acknowledged that, like the others present, she had been drinking. [ 76 ] Ms.

Ilaender gave a statement to the police on the night of the incident, important parts of the content of which she said she could not recall at the time of trial. A voir dire was accordingly declared following which, with Mr. Stelter’s consent, the audio recording and transcript of her statement were admitted as past recollection recorded. [ 77 ] Ms. Ilaender did recall seeing a fight break out between Mr. Davidson and an individual who came with Mr. Cameron—Mr. McMyn—when Mr. McMyn declined to leave the party when directed to do so by Mr. Davidson. Her evidence was that Mr.

Davidson had pressed the point because the party was getting too large and out of control. She recalled that the skirmish between Mr. Davidson and Mr. McMyn quickly evolved into a brawl when Mr. Cameron entered into it, followed by others on both sides: Transcript , May 2, 2011, pp. 5-8. [ 78 ] Ms. Ilaender recalled seeing Mr. Davidson bring a red and black bat out of the house—one that she recalled was kept at the house for protection—but, curiously, she insisted she could not remember whether she had seen it in Mr. Davidson’s hands: Transcript , May 2, 2011, p. 8. She made no mention of Mr.

Davidson swinging the bat, or striking, either Mr. Stoneburgh (on the arm) and Mr. Dorans (on the hand), or any other person. [ 79 ] Surprisingly, Ms. Ilaender’s somewhat shaky present recollection of events evaporated altogether when it came to the subject matter of the striking of Mr. Cameron with a bat and Mr. Stelter’s alleged involvement in that striking. Here, the gaps in her memory had to be filled by recourse to the audio recording of her statement. [ 80 ] In the relevant portions of Ms. Ilaender’s police statement she told police that she saw the accused, Mr. Stelter (a.k.a. Shwag), strike Mr.

Cameron “a few times” with a bat and, later (and somewhat contradictorily), that “all I saw was Shwag with a bat”. The first of those portions of her past recollection recorded agrees broadly with the evidence of Ms. Hillman.

[ 81 ] I consider it significant that, under cross-examination, Ms. Ilaender testified that she did not see how the bat that she remembered Mr. Davidson brought from the house passed from his hands to Mr. Stelter’s hands. Indeed, she conceded that the bat used in the assault of Mr. Cameron could have been a different bat than the one brought out of the house by Mr. Davidson: Transcript , May 2, 2011, pp. 18-19. I consider it even more significant that Ms. Ilaender agreed with cross-examining counsel that some of the content in her statement regarding Mr.

Stelter having left the party and gone to a pub called the Wolf after the melee was not based upon her own knowledge but rather upon what she had heard from others: “Q Okay. And then what happens is, later on, you said that Dan went to the Wolf? A Yes. Q Okay. So I take it before he left, he told you where he was going? A No, that's what I had heard. Q Okay. So a lot of this is hearing things from people; is that right? A Yes .” (emphasis added) Transcript , May 2, 2011, p. 19 [ 82 ] These latter aspects of Ms.

Ilaender’s testimony about her surviving memory are noteworthy, in part because they appear to cut against her assertion that, at the time of trial, she had no present recollection of Mr. Stelter’s actions during the melee and the party or of giving a statement to police about those actions. Pre-trial Discussion among Civilian Crown Witnesses [ 83 ] In the foregoing portions of these reasons I have referred to areas where the evidence of the various Crown witnesses was in some respects consistent and in others inconsistent.

Consistency in the accounts given by different witnesses of the same events is generally a factor that is seen to enhance the reliability of that evidence; inconsistency generally is seen to detract from reliability. [ 84 ] Here, there is considerable evidence to show that some of the Crown witnesses discussed their recollections of relevant events with one another during the time between April 3, 2009 and their appearances as witnesses at trial.

The fact that those discussions occurred—obscuring the distinction between witnesses’ recollections of their own observations and those of others—diminishes the positive significance for reliability that might otherwise be attributed to the consistency between and among various accounts. I offer a few examples of the evidence that confirmed the fact that pre-trial discussions between and among witnesses did take place. [ 85 ] Mr. Stoneburgh admitted under cross-examination to having discussed his evidence and compared police statements with various witnesses, including Mr. Cameron, Mr.

McMyn and the Crown’s key witness, Ms. Hillman. “Q And sometimes if you've been drinking and you have to say, "What was that about?" Is that right? A Well, if you see something and you have memory of it, you're not just going to replace things with other things in your memory. Q Well, you can if you talk to other people because sometimes other people have better memories than you; isn't that right? A There's always a chance. Q Okay. And Justin's [Cameron] still your friend today? A Yes, he is . Q And when you were here yesterday he was here sitting beside you? A Mm-hmm .

Q And he had his statement and he could read his statement and you read your statement and Cara [Hillman] was talking to everybody and so was Colt [McMyn], correct? A Mm-hmm. Yes. Q Okay. And you've talked about this from time to time over the years? It's been a couple of years now, a year and a half at least? A I haven't talked about it for quite some time, but we've talked about it before, yes.” (emphasis added) Transcript , November 30, 2010, pp. 34-35 [ 86 ] In contradiction of Mr. Stoneburgh’s evidence above, Ms. Hillman initially denied discussing the incident of April 3, 2009— even with her boyfriend, Mr.

Cameron. However, when pressed she conceded that they had “talked about it a little bit ’cause he’d asked me” (Transcript, November 29, 2010, p. 43). It seems inconceivable that Ms. Hillman would not have had some discussion with her boyfriend about the event that led to his hospitalisation, medical treatment and 10 weeks of medical leave from work, yet she was slow and reluctant to admit the obvious. Clearly her testimony was shaped, in this and other ways, by what she believed would make it most helpful to the Crown’s case against Mr. Stelter. [ 87 ] When one compares the descriptions given by Ms.

Hillman and Mr. Cameron of certain subject matter, remarkable parallels in

forms of expression can be discerned that appear to confirm the fact that they had discussed relevant matters together (as Ms. Hillman ultimately admitted). What follow are samples of the testimony each gave concerning their estimates of the height and weight of Mr. Davidson—the individual that other evidence establishes both knew by name and yet whom they both insisted upon referring to as the man with the red beard and red hair: “Q Have you seen Justin in a fight before this fight? A No. Q All right. What about the fellow with the red hair, are you in a position to describe -- red hair, red beard.

Are you in a position to tell us how tall he was, how much he weighed roughly? A Mm-hmm. Yeah. Q Okay. A He was a little bit taller than -- he was about, I think, just under six feet, I think . Q Okay. A And he was a bit heavier, so... Q Okay. A About two hundred and maybe twenty pounds . Q All right. A I guess.” (emphasis added) Ms. Hillman, Transcript , November 29, 2010, p. 57 “Q Can you describe the individual you were wrestling with? A All I can recall is red hair and red beard. Q Okay. Are you in a position to tell us how tall this individual was? A We were looking eye-to-eye, so probably around my height.

Q Okay. And you're five-eleven, you told us? A Yes . Q All right. And what about his weight, what would you say? A Oh, he was bigger than me at the time, so maybe two -- two-twenty .” (emphasis added) Mr. Cameron, Transcript , November 29, 2010, p. 15 [ 88 ] When a question was put to Ms. Hillman that carried the premise that she had discussed the events at issue in this case with her friends prior to trial, she did not challenge or question that premise: Transcript , November 29, 2010, p. 71.

Indeed, she acknowledged in her statement to police that some of the information she had to impart to the interviewing officer was what she had been told by others: Transcript , November 29, 2010, pp. 90-91. [ 89 ] When Mr. McMyn gave his evidence regarding how his altercation with Mr. Davidson came to the attention to Mr. Cameron and others in the house, it is clear that he was testifying on the basis of what he had been told by others: Transcript , November 29, 2010, pp. 98-99 and 105. [ 90 ] Mr. Dorans was clear that he did not see anyone hit Mr. Cameron with a bat.

However, he volunteered during cross-examination that by the time he intervened to help Mr. Cameron down from the top of the car, “... I think he had already been hit in the head with a baseball bat”: Transcript , November 30, 2010, pp. 119-120. While this may be merely an inference he drew from the fact that he observed Mr. Cameron’s bloodied head and face, the inclusion of the detail regarding the use of a bat is also consistent with Mr. Dorans having discussed the incident with other Crown witnesses. [ 91 ] Mr.

Davidson was asked in chief about whether certain attendees at the party were drinking, including Luke Peacock—Mr. Stelter’s best friend and the son of the witness he called to attest to his positive reputation in the “community”. Mr. Davidson’s answer confirmed that his knowledge that Mr. Peacock had served as a designated driver on the night in question was not his personal knowledge but came from “talk afterwards”: Transcript , November 30, 2010, pp. 49-50. [ 92 ] Ms.

Murray learned through discussions she had after the events in question that some of those who attended her party may have been taking cocaine: Transcript , November 30, 2010, pp. 94-95. Much more importantly, in the days following the melee on April 3, 2009, Ms. Murray heard from Ms. Hillman, Mr. Stoneburgh and Mr. McMyn that Mr. Stelter was being blamed for the bat-related assault (p. 102).

The Police Statement Given by the Accused [ 93 ] In the early morning hours of April 4, 2009—not long after the melee occurred, Mr. Cameron had been assaulted and police had been summoned—Cst. Bruce Trotzuk picked up Mr. Stelter as he made his way home on foot. The significance, if any, of Mr. Stelter’s post-offence conduct is unclear to me and, insofar as neither counsel made any submission to me on that subject I shall say nothing more about it. [ 94 ] Mr. Stelter was taken into the Ridge Meadows Detachment of the RCMP where he provided a statement regarding the subject events to Cst. Amber Carlson.

That statement was led by the Crown as part of its case. No issue was taken with the admissibility of Mr. Stelter’s police statement on grounds of voluntariness or Charter violations. [ 95 ] Both the video recording and the transcript of Cst. Carlson’s interview with Mr. Stelter were made exhibits at trial. Mr. Stelter appeared and sounded heavily intoxicated in the video recording. There are several portions of the statement where, by reason of, inter alia , Mr. Stelter’s slurred speech, the transcriber could do nothing other than type in “inaudible”. The subject of Mr.

Stelter’s alcohol consumption on the night in question came up during his interview with police. He reported that he had consumed half of a 26 oz. bottle of vodka. [ 96 ] At no point during the taking of his statement did Mr. Stelter positively and unequivocally admit to striking Mr. Cameron on the head with a bat. But, remarkably, neither did he categorically and definitively reject that proposition. There were times while being interviewed by police when he seemed to leave the door open to the possibility that he may have struck Mr. Cameron on the head with a bat. [ 97 ] Mr.

Stelter did admit to entering the fray in order to protect a couple of his friends who were being beaten up by others by pulling those attackers off them. The account he gave of the events that unfolded thereafter is, to say the least, confused and lacking in coherence; moreover, and importantly, it was dynamic in the sense that it changed over the course of its telling. [ 98 ] While trying to help out his friends, Mr. Stelter said to police, he was attacked by two people he didn’t know, one of whom had dark, spiky hair and was about his height (6’1”).

In the course of events, that individual obtained a bat that Mr. Stelter thinks could have been blue and swung it at him. He said he ducked and then was tackled, and at least two others piled on, kicking and punching him. He said that in the course of the struggle he pulled the bat away from his dark-haired attacker. [ 99 ] In the course of her questioning of Mr. Stelter, Cst. Carlson referred to the fact that “numerous witnesses” had told police that Mr. Stelter had struck a victim with the bat on the back of the head. As I have noted, Mr.

Stelter’s answers to the officer’s persistent questioning about whether he struck anyone himself with the bat changed over the course of giving his statement. First he said he did not remember hitting anyone with a bat. When asked later who he had hit with the bat he first said he had “no idea”, but then conceded that he “probably” hit someone but couldn’t say who. Still later on in his statement, Mr.

Stelter became more positive, stating “I remember he swung it like towards my face, I grabbed it, I remember hitting him and then I got up after and I started running down the road” and “I never said I didn’t hit him ... with the bat” (emphasis added). [ 100 ] Mr. Stelter said to police that he swung the bat intending to connect with his attacker’s leg but didn’t know where he connected. He then conceded, more than once, that “maybe” it was “possible” that he meant to hit his attacker in the leg but hit him in the head.

At one point he even referred to having “chucked [the bat] back at [his attacker]”. [ 101 ] Other answers Mr.

Stelter gave appeared to admit the possibility at least that a blow he intended for his attacker’s leg may have connected with some other part of that person’s body: for example, “I kinda ducked and I found the bottom of the bat and I like turned and he went down and at the same time like and I went to hit him in the leg to keep him down so and I throw the bat in the bush but, apparently I didn’t hit, hit him in the leg” and “I went to hit him like in the back of the leg, like in the back of the knee to hit him down ah it’s dark in the driveway, I mighta hit him anywhere though ” (emphasis added).

THE DEFENCE EVIDENCE [ 102 ] As was the case with my recounting of the Crown’s evidence, in outlining the evidence of the defence witnesses I shall here and there offer some qualitative assessments of their testimony and its credibility Linda Peacock [ 103 ] The defence first called the evidence of Linda Peacock, the mother of Mr. Stelter’s best friend, Luke Peacock. As I have previously noted, Mr. Peacock was in attendance at the birthday party on April 3, 2009, at which the offences with which Mr. Stelter has been charged allegedly occurred.

His involvement if any in the subject events, however, was not addressed in the evidence adduced at trial. [ 104 ] Ms. Peacock was called to give testimony regarding Mr. Stelter’s general reputation within the community for honesty, integrity and truthfulness. The essence of her evidence in this regard is captured in this exchange during her evidence-in-chief: “Q Okay. I'm going to ask you whether or not you feel comfortable in expressing an opinion as to what the general reputation of Daniel would be within the community of parents and social friends of your family? A Yes, I would. Q Okay.

What, if anything, can you say about Daniel's general reputation in that community for honesty and integrity? A He was -- he's very respectful, welcome in all our homes, very polite? Q Mm-hmm.

A And just a general delight to be around. Q Okay. What would you say, as well, is his general reputation in the community for his ability to tell the truth? A Always truthful.” Transcript , May 2, 2011 p. 43 [ 105 ] This evidence did not attract an objection from Crown counsel at trial and, technically, it is admissible character evidence under the authority of cases like R. v. Rowton (1865), 169 E.R. 1497 at 1506 (C.C.A.) . However, the “community” that was the subject of the reputation-related question put to Ms. Peacock is an exceedingly small one, consisting only of the “parents and social friends of [Ms.

Peacock’s] family”. That, of itself, markedly limits the usefulness of the character evidence that Ms. Peacock gave. But beyond that, Ms. Peacock’s answer was largely (though not exclusively) devoted to the expression her own opinion of Mr. Stelter’s character and to that extent it is inadmissible. In this regard I cite and adopt as authoritative the following passage from J. Sopinka, S.N. Lederman and A.W.

Bryant, The Law of Evidence in Canada , 2 nd ed. (Markham, Ontario: 1999, reprint no. 5, 2005) at p. 483: “The evidence cannot be an expression of the witness’ own opinion of the accused’s character ...” [ 106 ] For these reasons I consider that I am justified in according minimal weight to Ms. Peacock’s evidence. Daniel Stelter Himself [ 107 ] Mr. Stelter has pleaded not guilty to the charges that have been made against him and he gave evidence himself in support of his contention that he was not the person who struck the complainant, Mr. Cameron, on the head with a bat.

He does not now deny that he struck someone with a bat on the night in question, but he asserts that he struck that person on the leg only. Thus, he contends that he has been wrongfully accused of committing the assaults against Mr. Cameron that are the subject matter of counts 1 and 2 on Information 81876-2C (as amended) to which he has entered pleas of not guilty: see, for example, Transcript , May 2, 2011, p. 63. [ 108 ] Insofar as Mr.

Stelter was involved at all in striking anyone with a bat at the birthday party of April 3, 2009, his evidence at trial was that that action formed part of a larger encounter with another male who first struck him with a bat. He testified that he wrested the bat from that male’s hands and then administered a blow to the male’s knee to enable him to safely put distance between them. [ 109 ] Whether Mr. Stelter was, indeed, assaulted by a bat-wielding attacker on the night in question as the run up to the subject assault is open to doubt.

But even if he was, the question of whether that bat-wielding attacker was the complainant Mr. Cameron is very much an open one. Mr. Cameron—visibly a dark-haired man when he took the witness stand and in the exhibited photos taken in hospital after the incident—testified at trial that he is 5’11” in height. Mr. Stelter said in his statement that his attacker was dark-haired, wore his hair in a spiky style and was the same height (6’1”) or taller as he was. But no witness who knew Mr. Cameron at the time gave evidence regarding whether he then wore his hair in a “spiky” style. Beyond that, Mr.

Cameron’s own evidence was that he was not struck on the knee with a bat ( Transcript , November 29, 2010, p. 38) and the last thing he remembers about the melee before being hit on the head was dealing with a man with red hair and a red beard ( Transcript , November 29, 2010, p. 34). [ 110 ] Such as it is, the only evidence germane to the possible identification of Mr. Cameron’s assailant that came in as part of the case for the defence was the testimony of Mr. Stelter himself.

That testimony was, in many ways, inconsistent with the rather fluid and elastic account of the subject events he gave in his statement to police early on April 4 th . Despite this, Mr. Stelter expressed confidence in the quality of his recollection when the matter came on for trial, characterising his memory of the subject events as being “fairly good”: Transcript , May 2, 2011, p. 48. [ 111 ] Some of the most material points of difference between Mr.

Stelter’s evidence at trial and his police statement regarding the interaction he said he had with a bat-wielding attacker and his own possible role as a bat-wielding assailant are these: (

a) At trial, Mr. Stelter testified that he did not see the individual who initially attacked him with a bat and so could not describe him: Transcript , May 2, 2011, p. 62. In his police statement, he gave a somewhat detailed description of his attacker, saying he was as tall or taller than himself, had dark hair and wore his hair in a spiky style: Transcribed Statement , Exhibit 8, pp. 4-5 and 12; (

b) At trial, Mr. Stelter said his attacker struck him first with the bat, hitting him on the right elbow: Transcript , May 2, 2011, pp. 61 and 75. In his police statement, he made no mention of being struck with the bat on the elbow. To the contrary, he said that his knees and elbow got “bunged up” when some of his adversaries piled onto him as he was lying in the driveway gravel: Transcribed Statement , Exhibit 8, passim and, especially pp. 2 and 7); (

c) At trial, Mr. Stelter claimed to have a clear memory, after wresting the bat from his attacker’s grip, of using it in a purposeful way to strike at his attacker’s knee: Transcript , May 2, 2011, p. 62. In his police statement, he first denied using a bat to hit anyone. Then, after repeated questioning, Mr. Stelter said that he had struck at his attacker but didn’t know whether he hit him with the bat or where, and finally came around to say that he had struck his attacker on the leg in order to create a window of opportunity for his own escape: Transcribed Statement , Exhibit 8, passim and, especially, pp. 2, 5-7 and 10-11; (

d) At trial, Mr. Stelter said that after using the bat to strike his attacker in the knee, he simply dropped it beside the car where his struggle with his attacker had taken place: Transcript , May 2, 2011, p. 62. In his police statement he said that, after hitting his attacker in the leg with the bat, he threw it in the bush: Transcribed Statement , Exhibit 8, p. 10; and (

e) At trial, Mr. Stelter said that he was 100% certain that he had only struck his attacker once with the bat, and that he had struck him on the leg: Transcript , May 2, 2011, p. 81. At certain points over the course of giving his police statement, he said that he had “no idea” how many blows he struck with the bat, or where on his attacker’s body those blows made contact: Transcribed Statement , Exhibit 8, pp. 7 and 11.

[112] All of the divergences and inconsistencies noted above between Mr. Stelter’s evidence at trial and his statement to police—onissues of central and critical importance to the charges he faces—undermined his credibility and caused me to view his testimony withconsiderable scepticism. Like the Crown’s key witness, Ms. Hillman, Mr. Stelter did not enhance his credibility when he gave evidenceat trial that sometimes supplied details that were not included in his earlier narrative—details that were frequently contradicted by themore contemporaneous account. [113] In other areas, as well, Mr.

Stelter gave testimony that simply was not believable. For example, he told police that he hadconsumed half of a 26 oz. bottle of vodka on the night in question; however, at trial he claimed that he and a friend had shared that halfbottle of vodka with the result that he had consumed only a quarter of it. Surprisingly, while he admitted he had been drinking Mr.Stelter also sought to persuade the court that he was “not impaired” on the night when the subject events occurred: Transcript, May 2,2011, pp. 60 and 65-66. In my view, no reasonable observer watching the video record of Mr.

Stelter giving his police statement, ortrying to make sense of his words (as uttered and as transcribed), could possibly accept or agree with that self-characterisation. [114] Similarly, Mr. Stelter’s version of events as related during his direct evidence did not always square with that which he gaveunder cross-examination. For example, he was clear during his examination-in-chief that when he was attacked with a bat, he was supineand located partly under a parked car: Transcript, May 2, 2011, p. 62. It was for this reason, he said, that he could not see or identify hisattacker.

Yet, when cross-examined by Crown counsel, he was equally clear in his testimony that he was beside the vehicle and notpartially beneath it as he had previously said under oath: (p. 77). Such discontinuities further undermine the confidence that I can placein the evidence Mr. Stelter gave on his own behalf. ANALYSIS OF THE EVIDENCE BASED ON THE AUGMENTED R. v. W.D. FORMULATION Generally [115] As can be seen from the foregoing, certain Crown witnesses in this case—chief among them, Ms. Hillman—testified that it wasMr. Stelter who struck the complainant, Mr.

Cameron, two or three times on the head with a baseball bat on the night of April 3, 2009. Mr. Stelter himself testified that he did not administer blows with a baseball bat to the head of anyone present at the melee, including Mr.Cameron. [116] Both contentions cannot be true. [117] In making my factual finding on the central question of the identity of Mr. Cameron’s assailant, I must analyse the credibility ofthe evidence on either side of the identification question in accordance with the protocol set out by the Supreme Court of Canada in R. v.W.D., (SCC), [1991] 1 S.C.R. 742 at 757, as augmented by the B.C.

Court of Appeal in R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (C.A.). The analysis proceeds as follows: (

a) First, if I believe the evidence of Mr. Stelter, I must acquit; (

b) Second, as noted in R. v. H.(C.W.), if after a consideration of all of the evidence I am unable to decide whether to believe Mr.Stelter or the Crown witnesses, I must acquit; (

c) Third, if I do not believe the testimony of Mr. Stelter, but am left in reasonable doubt by it, I must acquit; and (

d) Fourth, even if I am not left in doubt by the evidence of Mr. Stelter, I must ask myself whether on the basis of the evidence I doaccept I am convinced beyond a reasonable doubt by that evidence of Mr. Stelter’s guilt. [118] Although I have concluded that this case falls to be determined pursuant to the fourth step of the above-noted, four-stepanalytical protocol, I believe that for reasons of transparency and completeness I must record here my reasoning on all four: R. v. R.E.M.2008 SCC 51 , [2008] 3 S.C.R. 3 at paras. 15 et seq. and R. v. M.K.N., 2007 B.C.J. No. 2075 (C.A.) at paras. 10 et seq.

Step No. 1 [119] First, I must state frankly that I cannot accept the exculpatory evidence given by Mr. Stelter on his own behalf, surrounded as itwas by the conflicting and somewhat inculpatory evidence that he also gave. The evidence of Ms. Peacock concerning the reputation forhonesty, integrity and truthfulness that the accused enjoys among the parents and social friends of her family—character evidence which, as I have previously noted, is entitled to minimal weight—did not come near to overcoming the problems that Mr.

Stelter created forhimself by giving such inconsistent and malleable evidence concerning the facts that are central to the case against him. [120] I have grave doubts about the reliability of Mr. Stelter’s recollection of the relevant events overall, given the evidence that haspersuaded me that he consumed a prodigious amount of alcohol on the night in question and that his memory of relevant events wassignificantly affected by intoxication. [121] Moreover, as I have noted above, Mr. Stelter’s narrative varied on successive tellings.

His story went through important changesbetween the time when he first began giving his statement to police and the time when he concluded giving that statement. He wentfrom first denying he had struck anyone with a bat to saying that he had struck a bat-wielding attacker with a bat that he wrested fromthat individual’s grip. At certain points when being interviewed by police he was categorical in his denial that he had ever struck anyoneon the head with a bat on the night in question; at others, he could not rule that possibility out.

In the face of such a labile account ofimportant events, I find it impossible to isolate a particular version from the others with which it conflicts and then, on a principled basis,find as a fact that that particular version is reliable and true. Some part or parts of what he said may have been true but I cannot discernwhich. [122] The problems with Mr. Stelter’s credibility were compounded when, in his testimony at trial, his narrative changed again. Ihave outlined some of the ways in which it changed earlier in these reasons.

[ 123 ] Evidence that is unstable and internally contradictory cannot be accepted as reliable. While I consider Mr. Stelter’s admissions against interest to be generally more reliable and credible, nevertheless, when it is taken as a whole his evidence does not present a version of events that is susceptible of understanding, much less belief, and to the extent it contains exculpatory content, I cannot safely accept that content as being true. Accordingly, I cannot acquit Mr. Stelter under Step No. 1 of the augmented R. v. W.D. formulation.

Step No. 2 [ 124 ] Sometimes it is possible to formulate a basis for preferring one version of a witness’ evidence over another, or one witness’ evidence over that of another, by comparing the subject evidence to “other, independent, evidence which is accepted”. This is one of several factors going to credibility that Rounthwaite, P.C.J. helpfully enumerated in R. v. Parent , [2000] B.C.J. No. 2772 (Prov.

Ct.) at para. 5 . [ 125 ] Here, if the Crown’s evidence could be accepted and could thus serve as a reference point, I might then have been able to determine which of the various, differing accounts of events given by Mr. Stelter I should reject and which I could accept. But, as I have been at pains to explain earlier in these reasons, the evidence led by the Crown does not offer “other, independent evidence [which I can] accept”. [ 126 ] This case as a whole presents me with bodies of Crown and defence evidence that are both encumbered with serious problems of reliability.

Accordingly, for the purposes of Step No. 2 of the R. v. W.D. formulation, I am not confronted with bodies of evidence which are both believable and between which I cannot choose. Rather, I am confronted with bodies of evidence, neither of which is credible in its own right. I cannot, therefore, acquit Mr. Stelter under Step No. 2. Step No. 3 [ 127 ] As I have already explained, Mr. Stelter’s account of critical facts was internally inconsistent and variable over time. It contained conflicting content that holds both the potential to convict him and to exonerate him.

Because of its heterogeneous and disjointed character, however, I found Mr. Stelter’s evidence on its own to be incomprehensible and incapable of raising a reasonable doubt regarding the charges he faces. I cannot, therefore acquit him under Step No. 3. Step No. 4 [ 128 ] Looking at the evidence placed before the court in its totality, I cannot say that any of it is capable of persuading me, beyond a reasonable doubt, that it was Mr. Stelter who struck Mr. Cameron on the head with a bat, causing him to suffer his serious injuries. [ 129 ] I will not recite again all

[…]