Her Majesty the Queen - v. -, 2016 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 011 Date: January 15, 2016 Information: 24493405 Location: Rosthern _____________________________________________________________________________ Between: Her Majesty the Queen - and - Keith John Appearing: Mr. Sandeep Bains For the Crown Mr. Brent Little For the Accused JUDGMENT B.M. KLAUSE , J [ 1 ] Keith John is charged with two counts of aggravated assault and one count of carrying a weapon on June 7, 2013 at Rosthern, Saskatchewan. He was arrested and charged on June 7, 2013 shortly after the incident complained, of and he has been on continuous remand since that time. The Facts

[ 2 ] On the evening in question the police received several calls regarding a disturbance with large numbers of individuals near the hospital and park in Rosthern, Saskatchewan. Rosthern is a largely Mennonite and normally a very quiet community 70 kilometres north of Saskatoon. The police responded and did several patrols encountering different groups of individuals. [ 3 ] Finally, they attended to a call of two individuals who had been stabbed and were in urgent need of medical attention.

At the scene, they found the complainants, Elliot and Stephen Lafontaine suffering from multiple stab wounds to their torsos. MD Ambulance transported both to the Rosthern Hospital for initial treatment but they were subsequently transferred to Royal University Hospital in Saskatoon for follow up medical attention. Both complainants survived the assault and testified. The Evidence [ 4 ] The Crown called a total of eight witnesses, including three police officers and five civilians.

Constable Tanner [ 5 ] Constable Tanner was on duty that evening and had attended to several calls involving the same individuals that evening. When he answered a call at 2:42 a.m., he found the complainant Elliot Lafontaine with two stab wounds to his stomach area, that he was trying to cover up. Nearby, he observed the other complainant, Stephen Lafontaine, lying on the grass, covered in blood with puncture wounds on his torso. Blood loss was a concern and both were taken by ambulance to the Rosthern Hospital.

Both individuals had consumed copious quantities of alcohol. [ 6 ] The officer subsequently attended to the suspect house and spoke with several of the witnesses who included Chance Almightyvoice, Troy Muskego, Gilbert Muskego, Madelaine Saunders, and the accused. None of these individuals had any injuries and most were intoxicated. Mr. John in particular, had no visible injuries at the time of his arrest. Constable Jackman [ 7 ] Constable Jackman also attended the scene and observed Elliot Lafontaine in the middle of the street with blood on the road.

He took photos of the scene and some of the possible weapons used in the melee which included sticks and “2 x 4" boards. He also saw Stephen Lafontaine lying on the street screaming and holding onto his stomach. From the information he received, the accused became a person of interest. As a result, he attended to 1012 Second Street in Rosthern where the accused was arrested. He had no injuries, did not appear intoxicated, and was cooperative. [ 8 ] Cst. Jackman was then sworn on a voir dire in regard to Mr.

John’s statement which was subsequently admitted as voluntarily given. [ 9 ] In this statement, there are no express admissions of guilt. Cst. Jackman tried in vain to elicit any inculpatory statements by appealing to the accused’s sense of common decency and morality.

In my opinion, based on multiple statements of the accused, this accused is a very sophisticated individual who knows how to look after himself and has an intimate knowledge of the criminal justice system. [ 10 ] In point of fact, while I concluded that the statement given was voluntary, there is little in that statement that would amount to an admission of guilt in regard to the charges as laid other than to put the accused at the scene, which was subsequently established by several other witnesses and not seriously contested by defence.

What was apparent from his statement however, was a rather chilling belief in his invincibility from prosecution:

KJ I’m not scared of no one.( p. 2 of the transcript) KJ Well the way I see it , this is from past experiences and I’ll beat these charges. Only one I’m not going to beat is the UAL. It doesn’t matter on what evidence you got against me, you need witnesses to back up your evidence.( p. 4 of the transcript) KJ I know I’m not fucked. . . I played this game a lot of times. I actually beat charges.(p.5 of the transcript) KJ I’m not admitting to nothing. My brother’s not going to testify against me. These two gangsters ain’t going to testify against me.

There’s no weapons with my fingerprints on it.(p.10 of the transcript) KJ Well everything for me is strategy. You know I got to weigh the pros and cons.(p. 16 of the transcript) KJ I’m trying to work out a strategy right now. ..... I’m very good at it.(p.18 of the transcript) KJ Where we come from we don’t dial 911. We do it ourselves.(p.20 of the transcript) KJ I just pointed out how I was going to beat it.(p.20 of the transcript) KJ Like my little brother’s actually going to testify against me.

And you know as well as I know, the victims don’t know my name or how I look. (p.20 of the transcript) KJ Well I’m confident in what im saying. Like {chuckles} if I had to worry about anything, I’d probably crack and all that at the spot and say, “Okay, yeah. I did it.” You know? Like you guys don’t have much evidence against me, but you do have enough to charge me. (p. 48 of the transcript) KJ And you know, you guys got this evidence, but you have no one to back it up. No one’s going to testify. (p.48 of the transcript) KJ Cause, one’s claiming TS and you said the other one’s not. They’re family members.

You know they’re not going to go through their whole family and look like rats. (p. 48 of the transcript)

Cst. Harrison: What if they do testify though? KJ: Hmmm. Then you know, it’s easy. Just walk in and point out their lies and then they’re beat. Charges dismissed. (p.49 of the transcript) KJ: My little brother ain’t going to testify against me. (p.49 of the transcript) Cst.Harrison: So why would your brother, why would your brother tell me that you did it?” (p.49) KJ: Cause he’s not the jailbird type. He panics. He gets scared easy. He thinks big brother will take care of everything.

So he points the finger at me. (p.49 of the transcript) Constable Harrison [ 11 ] Constable Harrison participated in taking the accused’s statement and had no concern about the accused’s sobriety He saw some old blood on his shoes and clothes. [ 12 ] At the conclusion of Constables Jackman’s and Harrison’s evidence, I heard argument and admitted the statement as being voluntarily given, without an atmosphere of compulsion, threat or inducement. The accused was afforded his rights to counsel, he exercised his rights to counsel and was apparently satisfied with the legal advice he received.

The accused showed a very canny appreciation of his legal position and seemed to enjoy testing the patience of both police officers. The statement was video recorded and in my opinion, the statement given by the accused was completely voluntary. Constable Jackman did not cross any societal or jurisprudential boundaries and in my opinion, acted in good faith in obtaining the very limited information he was given. Elliot Lafontaine [ 13 ] Elliot was one of the complainants and he testified that on the date in question he, together with his brother Stephen and a friend, Tony Peeteetuce were drinking.

They came across other people including Madelaine Suanders, Chance Almightyvoice, Gilbert and Troy Muskego. Everyone was getting along. Drinks and small talk ensued and this led to a minor altercation. Ultimately, later in the evening, he and his brother Stephen were attacked, struck with a variety of weapons and both he and his brother were stabbed by a group of four or five people after they had been put to the ground. He received eight stab wounds, was hospitalized , received sixty staples and was unable to work for most of the year.

He does not know the accused and was unable to identify him in court, due in large part to his degree of intoxication at the time of the assault. He recalled both Chance and Gilbert being part of the group that rushed him and his brother. He remembers being hit by a pipe and a stick and getting kicked in the head. He knew he had been subsequently stabbed as his stomach was warm and he felt “a pinch of pressure” but he was unable to see who was wielding the knife. Stephen Lafontaine [ 14 ] Stephen is from Beardy’s First Nation and is Elliot’s brother. His recitation of events was very similar to that of Elliot.

According to his evidence, no one in his group was armed. After the first altercation, they decided to drop off the girls and call it quits for the evening. Later on, they were rushed, and, as he turned around to face his attacker, he was hit and subsequently stabbed. He identified the accused in court as the person who had stabbed him. He was stabbed four times with one stab wound narrowly missing his spine. He identified the accused in court even though he does not know the accused personally. As a result of the attack, he received both stitches and staples, lost his job stuccoing and still experiences pain.

He became addicted to pain killers and is now on methadone in an attempt to reduce his reliance on them. [ 15 ] In cross-examination, he admitted he was very drunk, that he was knocked out and that it was the stab wound that awakened

him. He knew it was the accused the minute he saw him in court, but under cross-examination admitted that “maybe it could be the accused”, and maybe not, as it all happened very quickly. He does not know the accused and perhaps assumed that Mr. John was the attacker as he was seated next to defence counsel in the court room. Gilbert Muskego [ 16 ] Gilbert was 17 at the time of the offence and is now 19. On the evening in question he was with his similarly aged girlfriend and neither had consumed alcohol. He testified that the complainants had been at his house but earlier in the evening.

He had declined to go and drink with them and did not want them drinking at his house. Troy Muskego went with the Lafontaines but later returned and was upset with his interaction with the Lafontaines. Gilbert decided to call the accused at One Arrow First Nation to get him involved in the perceived slight to Troy. [ 17 ] Ultimately, Gilbert picked up the accused at the reserve and returned to Rosthern and later went out “hunting” for the complainants. Most of his group hid in the bushes and he called the Lafontaines on by tricking them into believing he was alone.

He was carrying a steel pipe and it was five guys on two. They ended up with Elliot on the ground and then decided to go after Stephen. He kicked and punched Stephen and the other guys all helped. He indicated that the accused stabbed Stephen with a quick fist stabbing motion to the upper lungs on Stephen and stabbed Elliot all over. He did not see the blood right away, and no one else in the group made any stabbing motion, only the accused. Later, everyone ran back to the house where the accused said words to the effect, “I stabbed them out”. He believed Troy was present for that statement.

Troy had been drinking but Keith was revved up. In-chief, he stated he had not seen a knife on Keith. The police attended shortly thereafter, and Keith was arrested.

He was very scared about what had happened as knives were never part of the plan. [ 18 ] In cross-examination, he agreed there were lots of people punching Elliot and he did not actually see a knife but insisted that Keith was the one who completed the stabbing motion. “I saw Keith do it”; “it was Keith”, “I saw him do it with a specific motion it was not the others it was Keith.” He also repeated that he had heard Keith say “I stabbed them up.” He agreed he had not given the whole story to Constable Harrison as he was afraid of going to jail.

After continued and pressing cross-examination, he said he was not sure if Keith made the statement and , “it might have been one of the others.” In redirect, he said neither he nor chance nor Troy made the statement and he was “pretty sure” it was Keith. [ 19 ] At this point in the trial the witness was excused. Almost immediately, he gestured to Crown counsel who requested a brief adjournment to talk to the witness. They returned to the court room immediately and Crown counsel asked to have the witness reseated as new evidence had come to light.

Defence counsel objected on the grounds that he had already testified and that it was new information. [ 20 ] I exercised my discretion in conducting the process in my own court room and allowed the witness to be reseated. Once he had testified, I advised defence counsel that he would be granted an adjournment if he wished as this was new disclosure that had taken him by surprise as, indeed, Crown counsel had been.

He declined. [ 21 ] On his second turn at the witness stand, the witness indicated that he was upset that defence counsel had insinuated that he was a liar and, in essence, he wished to set the record straight. It was his evidence that he in fact had taken possession of the knife from the accused who had instructed him to dispose of it, which he did by throwing it in a lake near Beardy’s Reserve. There was blood on the knife. He did this because he did not want the accused to be mad at him and send death threats to him.

He further indicated that the accused has been sending letters to his sister Nikita telling him not to testify, that he has seen those letters and they were from the accused in the Correctional Center. [ 22 ] In cross-examination, he insisted that he was not lying, that he was telling the truth and that he did throw the knife away but lied about that because he was scared. “I have held it in me for so long and I should have told Brock (ie. Cst. Harrison) right away.” [ 23 ] To clarify the issue, I asked Gilbert before he left the stand to clarify what he had said, under oath.

He repeated that the accused said “I stabbed them up”, told him to dispose of the knife and that was the truth.

[24] I should note that counsel for the defence objected to allowing the witness to be recalled by the Crown. TheSaskatchewan Queens Bench wrote on this issue in R. v Paquette, (1988) (SK KB), 65 Sask R 231, beginning atparagraph 6: 6 It is, in my view, a well established principle of law that a trial judge has a discretionary power to recall, or allow the recallof witnesses.

Once an accused has made himself a witness he is liable, like any other witness, to be recalled for the purpose of answeringsuch questions as the judge permits to be put to him. 7 The difficulty in the present case is not the actual recalling of the accused, but the point of time in the proceedings at which hewas recalled. In my opinion the discretion to recall a witness is limited to "any stage of the trial prior to the conclusion of the summing-up".

See Archbold Criminal Pleading Evidence & Practice, 42 ed. p. 464. [25] The best guidance can be found in the Supreme Court’s decision, R v P (MB), (SCC), [1994] 1 SCR 555.

Beginning at paragraph 20 the Court determined that the trial judge has significant latitude to allow a witness to be recalled when theapplication is made before the Crown has closed their case and little prejudice will be done to the accused in the process. 20 The keystone principle in determining whether the Crown should be allowed to reopen its case has always been whether theaccused will suffer prejudice in the legal sense — that is, will be prejudiced in his or her defence.

A trial judge's exercise of discretion topermit the Crown's case to be reopened must be exercised judicially and should be based on ensuring that the interests of justice areserved. 21 Traditionally, courts in Canada and in England have treated the stage reached in a proceeding as correlative to prejudice andinjustice to the accused. That is, a court's discretion with respect to reopening will be exercised less readily as the trial proceeds.

Thepoint is illustrated by taking the following three stages in a trial: (1) before the Crown closes its case, (2) immediately after the Crown closes its case but before the defence elects whether or not to call evidence (most commonly, this iswhere the defence has moved for a directed verdict of acquittal for failure by the Crown to prove some essential ingredient of its case),and (3) after the defence has started to answer the case against it by disclosing whether or not it will be calling evidence. 22 In the first phase, before the Crown has closed its case, a trial judge has considerable latitude in exercising his or herdiscretion to allow the Crown to recall a witness so that his or her earlier testimony can be corrected.

Any prejudice to the accused cangenerally be cured at this early stage by an adjournment, cross-examination of the re-called witness and other Crown witnesses and/or areview by the trial judge of the record in order to determine whether certain portions should be struck. 23 Once the Crown actually closes its case and the second phase in the proceeding is reached, the trial judge's discretion to allow areopening will narrow and the corresponding burden on the Crown to satisfy the court that there are no unfair consequences willheighten.

The test to be applied by the trial judge is generally understood to be that reopening is to be permitted to correct some oversightor inadvertent omission by the Crown in the presentation of its case, provided of course that justice requires it and there will be noprejudice to the defence. 24 Lastly, in the third phase after the Crown has closed its case and the defence has started to answer the case against it (or, as inmuch of the case law, the defence has actually closed its case), a court's discretion is very restricted and is far less likely to be exercisedin favour of the Crown.

It will only be in the narrowest of circumstances that the Crown will be permitted to reopen its case.

Traditionally, an ex improviso limitation was said to apply to this stage of the proceeding; that is, the Crown was only allowed to reopenif some matter arose which no human ingenuity could have foreseen. At this late stage, the question of what "justice" requires will bedirected much more to protecting the interests of the accused than to serving the often wider societal interests represented by the Crown,the latter being a more pressing consideration at the first and, to a lesser extent, the second phase.

Miranda Matchap [26] Miranda was dating Gilbert Muskego at the time of the offence when she was approximately 17 years old. She was with thegroup of guys when something happened. Keith, Troy, and Gilbert were all outside and she was inside the house. She saw one guy getstabbed quickly, and she indicated it was the accused who did that. She did not see a knife, but she saw blood after the accused made asideways stabbing motion towards the complainants. She had not been drinking that night.

She was adamant that after the accused madethe sideways stabbing motion, the complainant started to bleed. [27] In cross-examination, she agreed it had happened very quickly and it was hard to see who did what. In her opinion, theaccused was the last one to hit the complainants and that is when the complainants started to bleed. She did not hear anyone admit to thestabbing. Troy Muskego [28] Troy is the little brother of the accused and was 17 or 18 at the time of this incident. He was convicted and sentenced as aresult of this incident.

He indicated that he did not want the Lafontaines drinking in front of his house so he left with them. They did notphysically hurt him, but they treated him poorly. He was intoxicated at the time of the offence. He indicated that at a certain point intime, his group decided to fight the Lafontaines. No one in their group, which included the accused, Wes, Troy, Gilbert and Chance, gothurt. It was his evidence that the two complainants went down to the ground and that is when they got stabbed. The firstcomplainant(Elliot) offered little resistance and was stabbed by the accused in the stomach and back.

Elliot fell down, and then theaccused stabbed the other brother(Stephen). He never saw a knife and thought, at that time, that the accused was only punching them butthe accused later told the group that he had in fact stabbed them. The accused said “not to rat him out.” Keith was the only adultpresent, all the others were teenagers. He was scared. It was his evidence that he never stabbed anyone nor did Gilbert, Chance or Wes. [29] In cross-examination, he agreed the whole thing happened very quickly.

He insisted that the accused had said “don’t rat meout” and “I stabbed them.” He was sure it was the accused and he insisted he was not lying. [30] I again sought to clarify the evidence of this witness since such a young inexperienced witness is very easily confused especially when being cross-examined at length. [31] It was at this point in time that counsel for defence requested a mistrial on the grounds that the court had asked too manyquestions or cut him off as a matter of expedience. [32] In my opinion, the trial court judge is in charge of his court room and is entitled to hear the best possible evidence from thewitness.

When a witness appears to be confused and appears to be answering the questions honestly , it is my opinion that the judge isentitled to clarify any evidence he or she has found confusing. The witness was not being difficult or obstructive.

To the contrary, Ifound all three young civilian witnesses to be attempting, in a very difficult circumstance, to give their evidence as best they could,bearing in mind that all were aware of the accused’s reputation and his warning that they should not “rat him out.” While it is true thatall three were anxious to testify and leave the witness stand, in my opinion this had everything to do with being compelled to testifyagainst their friend and relative and nothing to do with being dishonest about what they actually knew. [33] In R v L (DO), (SCC), [1993] 4 SCR 419, the Supreme Court of Canada discussed the issue of when a trialJudge may have exceeded their proper role and interfered with the trial or shown bias requiring a mistrial.

This came in the context of a14 year old victim’s video-taped statement being admitted as evidence against an adult male charged with sexual assault. Beginning atparagraph 83, the Court rejected the argument that the trial judge had been biased and further submitted the following principle(emphasis added RCH):

83 The final issue raised by the respondent is whether the trial judge may have acted in such a manner as to raise a reasonableapprehension of bias, as per R. v. Brouillard , [1985] 1 .C.R. 39. In Brouillard , supra, Lamer J., for the court held that the judiciaryshould not be seen as "entering the ring" or acting on behalf of one of the parties. However, he wrote at p. 48: ... although the judge may and must intervene for justice to be done, he must nonetheless do so in such a way that justice is seen to bedone.

It is all a question of manner. [Emphasis added.] The respondent argues, while conceding that the trial judge can and should ask questions of witnesses in the course of their testimony,that the trial judge exceeded his role and participated in the proceedings to such an extent that an apprehension of judicial bias resulted. 84 It is my view that, in the case at hand as well as in other cases involving fragile witnesses such as children, the trial judgehas a responsibility to ensure that the child understands the questions being asked and that the evidence given by the child is clear andunambiguous.

To accomplish this end, the trial judge may be required to clarify and rephrase questions asked by counsel and to asksubsequent questions to the child to clarify the child's responses. In order to ensure the appropriate conduct of the trial, the judge shouldprovide a suitable atmosphere to ease the tension so that the child is relaxed and calm. The trial judge, in this case, did not prevent themounting of a proper defence, nor did he demonstrate favouritism toward the witness in such a way as to preclude a fair trial.

I find thatthe trial judge in this instance did nothing more than "intervene for justice to be done". [34] R v Brouillard, (SCC), [1985] 1 SCR 39, was a predecessor to the above case of R v L (DO). In this case, thetrial judge asked 60 question of a witness who was the complainant’s daughter and the girlfriend of the accused. The trial judge alsointerrupted the witness more than ten times. During the examination-in-chief and the cross-examination of the accused, the trial judgeinterrupted the accused more than 60 times, often with sarcastic remarks and commentary.

The Supreme Court determined that this wasan interference with the trial and that in the interest of justice a new trial should be ordered. The Court explained the reasoning forordering a new trial, starting at paragraph 12: 12 The role of a trial judge is sometimes very demanding, owing to the nature of the case and the conduct of the litigants (parties).Like anyone, a judge may occasionally lose patience.

He may then step down from his judge's bench and assume the role of counsel.When this happens, and, a fortiori, when this happens to the detriment of an accused, it is important that a new trial be ordered, evenwhen the verdict of guilty is not unreasonable having regard to the evidence, and the judge has not erred with respect to the lawapplicable to the case and has not incorrectly assessed the facts. 13 The reason for this is well known. It is one of the most fundamental principles of our case-law, the best-known formulationof which is to be found in Lord Hewart C.J.'s judgment in R. v. Sussex Justices, Ex p.

McCarthy, [1924] 1 K.B. 256 at p. 259: "[it] is offundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". 14 In the case at bar I am certainly not convinced that the judge was biased. On the contrary, I am inclined to believe that hemeant to be impartial. I am thus of the view that the accused was not prevented from presenting his defence, calling all relevantwitnesses and adducing all relevant evidence, although not without difficulty.

However, I am obliged to conclude that by his conduct, thetrial judge allowed there to be some doubt on this subject, which only a new trial can erase.

In this regard I am, with respect, in completedisagreement with the Court of Appeal in that I am not of the view that it is sufficient for justice to have been done to dispose of thisappeal. [35] In the course of the decision Justice Lamer, writing for a unanimous Court of five, put great care not to overly intrude on therole of a trial judge, says: 17 First of all, it is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges.

We nownot only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so forjustice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and ifnecessary call them to order. 18 One of the decisions most often cited in support of this rule is Jones v National Coal Board, [1957] 2 All E.R. 155. Lord

Denning stated the following, at pp. 158-9: No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence he took them up himself with the witnesses from time to time.

He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases and have done for centuries. Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been.

In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries.

Even in England, however, a judge is not a mere umpire to answer the question "How's that?" His object above all is to find out the truth, and to do justice according to law... [ 36 ] The Supreme Court concluded by indicating that an extra level of care is required when dealing with the accused: 24 Finally, prudence and the resulting judicial restraint must be all the greater where the accused is a witness.

He must be allowed to proceed, within limits, of course, but always bearing in mind that at the end of the day he is the only one who may be leaving the court in handcuffs. 25 In conclusion, although the judge may and must intervene for justice to be done, he must none the less do so in such a way that justice is seen to be done . It is all a question of manner. [ 37 ] I have taken the opportunity to review the transcripts of the trial and I make the following observations.

At pages 261 and 263 of the transcript I ask approximately 10 questions of the witness, who is not the accused, and the questions were simply for the purpose of clarifying testimony. I did not put any words in the mouth of the witness, as perhaps was suggested in the application for mistrial. Although the Court had questions of the witnesses, those questions were within the parameters of R v L (DO) . Analysis and Decision [ 38 ] This incident, while extremely serious, happened when several of the principals were intoxicated.

In particular, as I have stated before, I find nothing in the warned statement that specifically implicates the accused although it tangentially places him at the scene. This, however, has been established by several of the witnesses who testified. In my opinion the Crown has established that the accused was present at the scene of the stabbing and was an active participant in the melee. At the very least, he has been shown to be a party to the offence.

The question becomes what level of involvement do I find in the relevant and admissible evidence. [ 39 ] The accused was the oldest participant at the scene and, in fact, had been specifically recruited by his younger brother Tony Muskego that evening to attend the scene. The accused was fetched from One Arrow Reserve to avenge the slight that Tony perceived he had received from the Lafontaines. [ 40 ] In regard to Elliot Lafontaine and Stephen Lafontaine’s evidence, neither are reliable as to the identity of the person who wielded the knife. Elliot was completely unable to identify the accused.

Stephen, while initially convinced it was Mr. John, had to concede that perhaps he was mistaken as the incident happened very quickly. Therefore, I am unable to conclude on their evidence that Mr. John was the individual who wielded the knife. I do accept that both Elliot and Stephen were careful and concise witnesses who gave their evidence honestly and as best they could recall it. I did not find them to prevaricate or invent any of their evidence. They were not easily swayed or intimidated by either the accused or his counsel.

[ 41 ] The most persuasive evidence was that given by Gilbert, Miranda, and Troy, who were at the scene on the night in question and who were young people at the time of this offence. All three were adamant that the accused was present and participated in the offences. Clearly, at the very least, Mr. John was a party to the offence of aggravated assault. [ 42 ] The question then becomes was he the principal offender. Was he the wielder of the knife?

The Defence in his closing argument submits that I should entirely reject the evidence of Gilbert, Miranda, and Troy as they changed their story under cross- examination and that they are therefore attempting to mislead the court in order to cover their own involvement. The Crown argues that I should closely examine their evidence and their demeanour and conclude that they were honest in their initial evidence and have adequately explained the differences between their evidence in-chief and their evidence given in cross-examination. He points to their evidence and its congruence with the other facts in the case.

Decision [ 43 ] I find myself in total agreement with the Crown upon the evidence I have heard. In my opinion, the Crown has established, beyond any reasonable doubt, that the accused was the wielder of the knife. He was the oldest person in the party and had been brought in specifically as the enforcer to avenge what Troy thought was a slight to him. [ 44 ] The three most material witnesses were young, inexperienced in courtroom matters and were easily persuaded by cross- examination to somehow doubt their earlier statements.

I am not persuaded that their answers given in cross-examination are reflective of what actually transpired on the evening in question. I accept their answers given in-chief and in re-direct as being an honest and truthful account of what actually happened that night. [ 45 ] I had the occasion to personally observe each witness testify both in-chief and in cross- examination and to note their demeanour and approach to their evidence.

In my opinion, they felt threatened by the process they were undergoing, which is to be expected when dealing with young witnesses in general, and in particular young First Nations witnesses where the major participants in a trial are non-aboriginal. [ 46 ] Gilbert, in-chief, gave one version of events which indicated (at page T173) that the accused made stabbing motions to the complainants and that (at page T175) when the accused was at the house after the incident, he said that he had stabbed the complainants. In cross-examination, a different version was given after repeated questions from the defence.

Parsing his earlier evidence, Gilbert testified that he had seen Keith make a stabbing motion but later qualified that to mean that maybe that was because he heard Keith say that back at the house. In fact, this cross-examination was extremely confusing both to the complainant and myself. His answers essentially became monosyllabic as, in my opinion, he just wanted to get off the witness stand.

In re-direct, he confirmed that he thought it was Keith who made the stabbing motions and he was pretty sure it was Keith’s voice indicating that he had “stabbed him up.” [ 47 ] Almost immediately after he was excused, he motioned that he wanted to speak to Crown counsel. After a short adjournment, over the objection of the accused , Gilbert was recalled to the stand as he had new evidence to offer. This time, he testified that the accused had given him the knife and asked him to dispose of it, that he accepted it and threw it in the lake by Beardy’s.

He explained that he had not testified to that earlier because he was scared of the accused and did not want to receive death threats. He then went on to explain how his sister had received threatening letters from the accused containing his blood. This time in cross-examination, he did not recant any portion of his evidence and confirmed that he did dispose of the knife in accordance with the accused’s directive. [ 48 ] At the conclusion of this yet again rather confusing state of affairs, I (at p. 208) of the transcript asked the following : Gilbert what did Keith say at the house when he came back?

He just told me to throw away the knife so that we wouldn’t get caught for it. Is that the truth?

Yeah [ 49 ] He made no attempt to minimize his personal involvement and in fact admitted that he had kicked one of the complainants in the face when he was on the ground. This in my opinion bolsters his credibility. He did not exaggerate his evidence and was willing to admit his own somewhat cowardly participation. [ 50 ] On my reading of my trial notes, reading the transcript and listening to the evidence of this witness and observing him testify at length , I make the following findings of fact: He was with Keith that night at the time of the incident.

He saw Keith make a stabbing motion towards the complainants. He was advised by Keith, whose voice he recognized, back at the house that Keith “had stabbed them up”.

He was later given the knife used on the complainants by Keith and told to dispose of it. [ 51 ] It is completely clear to me that the differences in his evidence are due to a real and perceived threat by the accused to this witness, that he was and is genuinely scared of this accused, and he was extremely reluctant to testify both because of the perceived threat by the accused and his reluctance to “rat him out.” [ 52 ] Miranda also testified that she saw the accused making stabbing motions, and then noticed blood on the victim after Keith made those motions.

In court, she demonstrated a stabbing motion with her own arm. She stated that no one else was around the victim when Keith did that. She saw no blood as a result of any other persons’ activities until Keith became involved. [ 53 ] In cross- examination she confirmed that she may have concluded this because Keith was the last person to hit the complainant. [ 54 ] Based on Miranda’s evidence, I make the following findings of fact: She saw Keith make a stabbing motion towards the complainant. Shortly thereafter she saw blood on the complainant.

From this, she concluded that the accused had stabbed the complainant. [ 55 ] This corroborates the evidence of Gilbert and Troy.

[ 56 ] Troy Muskego was the last witness for the Crown. He is related to the accused and again I found him to be a young, relatively unsophisticated witness, who clearly did not want to be testifying at all. In particular, he did not want to testify against someone he both feared and loved and who is essentially his brother-in-law. I found his evidence to be compelling. [ 57 ] He outlined the incident that night and that as result of the perceived slight that he went to pick up Keith at One Arrow and asked for his help. The fight began, at p. T243 - T245 he was asked who was there and what did he have.

He testified that the accused was there and he had a knife. Troy said he realized this when he saw the complainants on the ground holding on to their stomachs. He also testified as to his own involvement and testified that he had kicked the complainants in the head. [ 58 ] At page T249 of the trial transcript: Q What did you see Keith doing to one guy let’s say first? A That first guy and then that’s when he got stabbed by Keith. Q He got stabbed by? A Keith Q What did you see Keith doing to that first guy? A Just stabbing him in the stomach and that. Q Okay so you saw his arm moving? A Yeah.

Q And where was he stabbing this guy? A Stomach and that. Q And then that’s when his brother came and then that’s when he got stabbed too, okay so the brother came then, who stabbed the brother? A Keith did. [ 59 ] At page T251 of the trial transcript: Q Okay so what happened? I mean you’re saying that they got stabbed. I want to know who did it.

A Keith did. Q Keith did, okay, so did you see him moving his arm on that first guy? A Yeah Q Did you see a knife? A No I thought he was punching him. [ 60 ] And continued on page T252: Q Okay what made you think then that he was stabbing him? A I don t know, cause they were on the ground and he told us. Q They were on the ground? A Yeah, and then he told us. Q They told us? A He told us that he did it. The Court: Who told us? A Keith. [ 61 ] And further at page T254 of the trial transcript: Q So what did he say, his words exactly? A He just– just told us not to rat out.

Q Okay but in terms of saying he stabbed him what was his words? A He said he stabbed them. Q He said he stabbed them? A Yeah [ 62 ] He also testified that none of the other individuals at the scene were stabbing anyone. In cross-examination after a lengthy and often confusing cross-examination (see T262-263) the witness continued to indicate that it was Keith who did the stabbing. [ 63 ] I make the following findings of fact with respect to Troy’s evidence: He enlisted the support of his older brother, the accused, to help remedy the slight he felt he had received on the date in question.

He did not know that the accused was armed with a knife but saw the accused making a stabbing motion towards the complainants who subsequently doubled up with pain. The accused later advised that it was he who had stabbed the complainants. The accused told him not to tell anyone ie don’t rat me out. [ 64 ] In essence the witnesses for the Crown corroborate each other and there was no substantiated suggestion that they had colluded to come up with a common version of events.

In any event, their evidence varied on specific details but on the whole was consistent with the only conclusion I can reach: - that the accused came to the incident at the invitation of Troy, armed with a knife - the accused was seen making stabbing motions with his hand resulting in injuries which later turned out to be knife wounds of a very serious nature - the accused subsequently admitted to making the stab wounds to the young people present along with an admonition as to not tell anyone - the accused essentially references this warning in his warned statement i.e. “That no one will testify against him.” - that the accused gave the knife to Gilbert and advised him to dispose of it in the lake [ 65 ] I note for the record that Troy was 18 at the time, Gilbert was 17 and Chance and Wesley were both 18.

The accused was born in 1981 and on the date of the offence would have been 32 years of age.

[66] The defence essentially invites me to parse the evidence and consider each witness and piece of evidence separately toconclude that there is no evidence of the accused’s involvement beyond a reasonable doubt. With the greatest respect I disagree. I amentitled to look at the whole of the evidence in its rational context. [67] The Supreme Court of Canada provided in R v Towne Cinema Theatres Ltd., (SCC), [1985] 1 SCR 494 atparagraph 63: The law is clear that a trier of fact does not have to accept testimony, whether expert or otherwise. He can reject it, in whole or in part.

Hecannot, however, reject it without good reason.

The Practitioner’s Evidence Law Sourcebook, First Edition, authored by KevinMcGuiness and Linda Abrams, provides the following guidance at page 125, paragraph 2.72: The trier of fact – whether it be judge or jury – may believe all the evidence given by a witness, part of that evidence, or none of it Indetermining whether to believe a witness, that tier should consider such things as the witness’ ability and opportunity to observe, his orher power of recollection, any interests bias or prejudice that he or she may have, any inconsistencies in his or her testimony, and thereasonableness of his or her testimony when considered in the light of all the evidence in the case, and whether the evidence given isconsistent with the trier’s own understanding of the normal occurrence of things in life. [68] Similarly stated by the Supreme Court of Canada in R. v D.A.I., 2012 SCC 5, at paragraph 18: It is the task of the judge or jury to weigh the probative value of each witness’s evidence on the basis of factors such as demeanour,internal consistency, and consistency with other evidence, and to thus determine whether the witness’s evidence should be accepted inwhole, in part, or not at all.

Unless the trier of fact is satisfied that the prosecution has established all elements of the offence beyond areasonable doubt, there can be no conviction. [69] It would appear based on the above sources, the trier of fact, whether it is a trial judge alone or a jury, is free to choose whatportion of any evidence they will accept so long as that choice is made reasonably. [70] Upon doing so, I am left with the obvious and I suggest reasonable conclusion that it was the accused who was theoldest person in the vigilante squad, who had been brought in purposefully to address the situation, who assumed command of thesituation, who over reacted and used a knife in a cowardly fashion to inflict harm upon two intoxicated strangers and who then subsequently bragged about what he had done andthreatened the much younger members of the party to keep quiet about it.

In my opinion, the Crown has proven each of the essentialelements of this offence beyond any reasonable doubt. [71] I therefore find the accused guilty as charged. _________________________ B.M. Klause, J