R. v. Davies Date:, 2017 BCPC 392

Citation: R. v. Davies Date: 20171215 2017 BCPC 392 File No: 93490-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. COLTON BRAM DAVIES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: P. J. Beirne Counsel for the Accused: M. Nathanson Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: December 12-15, 2017 Date of Judgment: December 15, 2017

INTRODUCTION [1] The Crown proceeds by Indictment in this prosecution against the accused, Colton Bram Davies (“Mr. Davies”), on a charge ofaggravated assault. The alleged offence date is December 6, 2014 and the complainant is Charles Braeden Mackenzie (“Mr.Mackenzie”). The Crown contends that in the course of an altercation during the early morning hours in Port Coquitlam, BritishColumbia, Mr. Colton stabbed Mr. Mackenzie in the torso requiring that he be hospitalised and treated medically, and leaving him withsymptoms that persist to the present day. Mr.

Davies has pleaded “not guilty” to the charge and, though he called no defence evidence,he nevertheless defends the charge with vigour and great determination. [2] The Crown’s case against Mr. Davies consists of the oral testimony of Mr. Mackenzie, Mr. Mackenzie’s friend MikeLoehndorf (“Mr. Loehndorf”) and Brian Black (“Mr. Black”), an independent civilian witness with no ties to the accused on any of theCrown witnesses. This testimony was augmented by certain documentary exhibits and formal admissions set out in writing in Exhibit 7.

Counsel are to be commended for reaching agreement on admissions that substantially shortened the time that was required to try theserious charge that Mr. Davies faces. [3] The central issue in this case is identification and, in particular, whether the Crown is capable of discharging its burden to provethat it was Mr. Davies who stabbed Mr. Mackenzie, given that:

a) Mr. Mackenzie gave the only evidence directly identifying Mr. Davies as his assailant;

b) Mr. Loehndorf gave testimony that, at most, touched on identification but fell well short of constituting direct evidence ofidentification of Mr. Davies as the person who assaulted Mr. Mackenzie; and

c) Mr. Mackenzie is plainly a witness of “disreputable character” whose testimony, had this been a jury trial, would have requireda caution of the kind specified in the decision of the Supreme Court of Canada in Vetrovec v. The Queen, (SCC), [1982]1 SCR 811. Mr. Loehndorf, to a lesser degree, is also, plainly, a Vetrovec witness. [4] On the authority of Vetrovec, in these circumstances I must be astute to the existence, or not, of "confirmatory evidence" thatmay be capable of assisting me in overcoming an appropriate, common sense hesitation to accept the evidence of both Mr. Mackenzieand Mr.

Loehndorf. [5] All of that said, at para. 52 of R. v. Connell, [2017] B.C.J. No. 841 (Prov. Ct.)—another case involving Vetrovec witnessestestifying for the Crown—I made the following comments which I also consider, mutatis mutandis, to be apropos the case at bar: “… [I]t must also be acknowledged that criminal acts are not uncommonly committed by and against persons involved in the criminalunderworld with only other persons in the criminal underworld present as witnesses.

That does not mean that all prosecutions whichconfront such situations must necessarily fail and that all wrongdoers involved in such situations must necessarily escape liability fortheir unlawful actions.

Thus, while accepting (of course) that the reasoning found in Vetrovec and the authorities that follow it mustguide me, I must also not shrink from finding facts that support the Crown's case against [the accused] (as I have been invited by [Crowncounsel] to do) if -- looking critically at the entirety of what is before me -- there is evidence that can give me "... faith in the relevantaspects of [the Vetrovec witnesses’] account[s]" (see [Her Majesty the Queen v. MacIsaac, 2017 ONCA 172 ] at para. 38).” PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF [6] Mr.

Davies enjoys the benefit of the presumption of innocence that all accused persons enjoy in Canada. As in all criminalprosecutions, the Crown can only secure a conviction of Mr. Davies if it proves all of the essential elements of the criminal offence withwhich he is charged beyond a reasonable doubt. That standard is a strict and onerous one. As Iacobucci J. expressed it at para. 242 ofthe majority decision in R. v.

Starr, [2002] 2 S.C.R. 144, “… it falls much closer to absolute certainty than to proof on a balance ofprobabilities”. [7] Meeting the Crown’s burden always poses a significant challenge; the challenge is amplified where, as here, proof of a keyelement, like identification, comes only from Vetrovec witnesses. UNCONTROVERSIAL FACTS [8] It is common ground between Crown and defence that the complainant Mr. Mackenzie, who was intoxicated at the time, wasinvolved in an altercation with someone during which he was stabbed a number of times in the torso, causing him to suffer injuries.

Thatthe stabbing occurred in the early morning hours of December 6, 2014, in Port Coquitlam, British Columbia is not disputed. That Mr.Mackenzie and his alleged assailant, Mr. Davies, were friends who have known each other for years is also not disputed. Neither is it incontention that the assault was of such a nature that it “wound[ed]” or “maim[ed]” Mr. Mackenzie as those terms are used in s. 268 of theCriminal Code and the cases that have interpreted that section. Thus, there is no room for doubt that someone, using a knife,intentionally applied force to Mr.

Mackenzie without his consent, causing him to suffer grievous injuries. The question that remains, asI have noted, is whether—as the Crown contends and Mr. Davies stoutly denies—it was the accused, Mr. Davies, who committed theaggravated assault against Mr. Mackenzie. The answer to that question turns, almost entirely, upon the credibility and the reliability ofthe incriminating evidence given against Mr. Davies by the Crown’s Vetrovec witnesses, Mr. Mackenzie and Mr. Loehndorf. IDENTIFICATION [9] If it is to be proven in this case, identification of Mr. Davies as Mr.

Mackenzie’s assailant will be established principally on thebasis of the testimony given by the Crown’s witnesses, Mr. Mackenzie and Mr. Loehndorf. No physical evidence—incriminatingfingerprints taken from the knife used in the stabbing, for example—was tendered by the Crown in support of its case. This propels theinquiry into the sufficiency of the proof of identification obtainable mostly from viva voce testimony of two Crown witnesses to a

position of great prominence in this prosecution. [10] Mr. Nathanson, counsel for Mr. Davies, rightly submits that evidence of identification is evidence that courts must and doapproach with great caution. Such evidence is, as he submitted, “fraught with difficulties”. Those difficulties relate to the effects of amyriad of factors including, without limitation, observational conditions, observational capacity, memory weaknesses and previousacquaintance with the accused. The Ontario Court of Appeal expressed the point well in R. v. Brand, (ON CA),[1995] O.J.

No. 1342 at para. 7 (C.A.) where, in a unanimous decision, the court stated: “… eyewitness identification of the mostcredible witnesses may be fraught with the danger of mistake”. Being Vetrovec witnesses, Mr. Mackenzie and Mr.

Loehndorf gavetestimony in this regard that calls for exceedingly close and critical scrutiny—testimony that generally requires independent,“confirmatory evidence” to be accepted. [11] Before turning to an assessment of the evidence relevant to identification from particular witnesses in this case I will make thepoint here that I do not propose to address every aspect of all of the testimony and documentary exhibits I heard and saw over the courseof this two-day trial.

As I stated recently in Connell, at paras. 5-6 “… I have … referred to evidence that I consider it necessary to mention in connection with my factual findings and the legal conclusionsthat flow from them. In places I have made mention of evidence that I have been unable to accept, and of the reasons why I have beenunable to accept it. If evidence is not mentioned in this decision, both Crown and defence may take comfort that the omission is not theresult of my not having taken note of it. I have read all of the transcripts from end to end. I have done the same with all of thedocumentary exhibits.

If witness testimony or documentary evidence do not come up for specific mention in these reasons, that isbecause: (

a) The evidence was not relevant; (

b) The evidence is to the same effect as other evidence of which mention has been made; or (

c) The evidence was tendered in support of alleged facts I have not found and arguments that I have not accepted, having regard tothe facts that I have found and the arguments that are supported by those facts. That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed and somewhatselective canvassing of the evidence heard at trial is well established on the authorities.

The law is clear that where there is substantialsupport in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error byfailing to refer to every item of evidence that was adduced: see, for example, R. v. Tse, 2013 BCCA 121 at para. 56; R.v. Blacklaws 2012 BCCA 217 at para. 50 (aff'd, 2013 SCC 8); and R. v. Dinardo, 2008 SCC 24 at para. 30. [12] I turn now to the evidence of Mr. Mackenzie. Mr. Mackenzie [13] Mr. Mackenzie is manifestly a Vetrovec witness.

His criminal record, as recorded in the Justin Conviction List marked asExhibit 4, contains various entries that bespeak a pattern of criminal behaviour involving dishonesty. Beyond that, he claimed in histestimony to be in fact innocent of some of the matters for which he has previously entered pleas of guilty. This, Mr. Nathanson rightlyargues, shows a disturbing willingness on the part of the Crown’s key witness to mislead courts when he appears before them. I must,therefore, be alive to the possibility that he has, before me, been bent again upon misleading this court. [14] Moreover, Mr.

Mackenzie contended during his cross-examination at trial that many parts of statements he made to the policeabout the stabbing at issue in this case were intentional lies. It was not lost on the court that the portions of the statements he made toinvestigating officers that he now so forcefully denies go directly to the issue of identification and run counter to his present contentionthat he is now certain that it was Mr. Davies who stabbed him. [15] Mr.

Mackenzie sought to downplay the effects of alcohol and cocaine on his memory and his observational capacity on thenight in question—factors that go to the reliability of his identification evidence. For example, he was caught out, during cross-examination, in lies about the types and quantities of alcohol he consumed alongside the cocaine he also consumed on December 6,2014.

The evidence he gave—intending to persuade the court that his observational capacity and his ability to remember importantdetails of what happened in the early hours of December 6, 2014 were not greatly affected by the substances he had ingested—wasundermined by the many gaps in his recollection of memorable events, coupled with inconsistencies on various points. The court’s concerns in this regard are magnified by the fact that Mr.

Mackenzie admitted to having discussed the events of December 6th with Mr.Loehndorf while in hospital the next day, giving rise to the possibility that his testimonial account has been contaminated by content thatis not attributable to his own observations but to what he was told by another. Mr.

Mackenzie’s forceful denials that he was “blackoutdrunk” during the lead up to, and at the time of the stabbing, were contradicted by his statements to police made much nearer in time tothe alleged offence date in which he acknowledged that he was, indeed, “blackout drunk”. [16] The effects of the intoxicating substances Mr. Mackenzie consumed at the relevant time upon his observational capabilities andmemory call the reliability of his identification evidence seriously into question.

The possibility that some of what he claimed to haveobserved and remembered may have been “backfilled” through conversation with Mr. Loehndorf casts further doubt on that evidence. Apervasive inclination toward mendacity was revealed in Mr. Mackenzie’s combative testimony during cross-examination. Thatwillingness to state falsehoods under oath undercut his credibility. All of these factors seriously degrade the quality of the Crown’sevidence on the key issue of identification. [17] It is significant that Mr.

Mackenzie gave police statements, close in time to the subject events, in which he told investigatingofficers in clear terms that he did not know who had stabbed him. It is common ground that Mr. Davies is someone who has been knownto Mr. Mackenzie for a period of years. That the identity of his assailant would have been unknown to Mr. Mackenzie so near in time towhen the assault occurred seems inconceivable if, in fact, that assailant was in fact his friend and long-time associate, Mr. Davies.

[ 18 ] The court simply cannot accept that the conversation between Mr. Mackenzie and Mr. Loehndorf that intervened between the statements Mr. Mackenzie first gave in which he said he did not know who his assailant was, and the statement in which he claimed to recall that his assailant was Mr. Davies, was not a factor in the dramatic reversal of Mr. Mackenzie’s claimed, late-arising recollection on the key issue of identification. The value of Mr.

Mackenzie’s evidence to the court suffers, not only because his recollection of events is generally patchy and inconsistent, but also because he appeared so willing to deviate from previous accounts given in solemn circumstances without any credible explanation for doing so and to incorporate content from external sources and offer it as his own. In such circumstances, a witness’s reliability and credibility are the casualties. [ 19 ] Mr.

Mackenzie sought, during cross-examination, to distinguish the last statement he gave to the police—the one in which he renounced his earlier assertions that he didn’t know who assaulted him and positively identified Mr. Davies as his assailant—from the earlier two by saying that the last statement was a “come clean” statement. That time, he said, he had chosen to abandon his previous practice of lying—including lying about the identity of his assailant to protect his friend Mr. Davies—and give a truthful account that included the truth about who stabbed him.

Yet many other details in that “come clean” statement were revealed, during cross- examination, to be false and Mr. Mackenzie eventually conceded that a substantial amount of the content in that statement too was a “pack of lies”. [ 20 ] While a witness’s motive for giving false testimony is not a court’s central preoccupation in a trial of this kind, I cannot help but observe that Mr. Mackenzie, on his own evidence, acknowledged that his relationship with Mr. Davies has tended to be a “hot and cold” relationship.

They have stuck by one another over a considerable period but the times when they are on friendly terms have been punctuated, Mr. Mackenzie testified, by other times where they fight and are in conflict. That being so, I must be astute to the possibility that what Mr. Mackenzie will say about Mr. Davies may be driven, in part, by whether he is, at any given time and for whatever reason, favourably disposed to Mr. Davies. If he is willing to falsely tell police that he doesn’t know who stabbed him in order to protect Mr.

Davies (as he claimed he did in his first police statement), it seems just as likely that he may be willing to lie to place Mr. Davies in harm’s way if the two happen to be on unhappy terms. Either way, lies abound in the way Mr. Mackenzie operates, as he readily admitted. Mr. Mackenzie’s claim that the scales finally fell from his eyes as to who stabbed him when he made his second police statement may, on this view, reflect nothing more than the fact that by the time he gave his second police statement his relationship with Mr. Davies had turned sour again and that he was minded to cause Mr.

Davies some grief. [ 21 ] While it does not go directly to identification, the lack of consistency in some of Mr. Mackenzie’s other testimony, both internally and when compared to police statements he gave closer in time to the subject events, speaks poorly of the reliability and credibility of his testimony overall and casts further shadows over his crucial, identification evidence. [ 22 ] I will give only a couple of further examples. [ 23 ] First, Mr. Mackenzie claimed during his evidence at trial to recall having a fight with Mr.

Davies earlier in the evening in the apartment where they and two women had spent some time together drinking before the stabbing incident occurred. He gave details about that fight resulting in, among other things, the breaking of the toilet in the apartment. Yet, he told the police in one of his police statements that he did not recall having a fight in the apartment that caused the toilet to break and the apartment to flood. Rather, he said, he had been told about those matters later by one of the women who inhabit the apartment. [ 24 ] Second, Mr.

Mackenzie insisted that he was “100% certain” that, early in the chronology while visiting in the apartment and before obtaining whiskey from Mr. Loehndorf, the only alcohol he had consumed was wine. Then, when confronted with a police statement in which he admitted to having also had some Tequila, he then was “100% certain” that he’d had wine and Tequila before Mr. Loehndorf arrived with the whiskey. Mr. Nathanson argues, persuasively in my view, that this shows the complete disconnect that exists between Mr. Mackenzie’s own expressed confidence in what he recalls and the accuracy of his recollection.

I agree with counsel when he says that where a witness, like Mr. Mackenzie, will express absolute certainty on one state of affairs and then, when contradicted, express absolute certainty on a conflicting and different state of affairs, the witness furnishes the court with a “touchstone” demonstration of his or her own unreliability. [ 25 ] I have sought to show, through these examples, how Mr. Mackenzie’s testimony lacked consistency, not only on the key issue of identification but in numerous other areas as well. There are many other examples that I do not see the need to mention.

It hardly matters whether such inconsistencies are traceable to lies or drug- and alcohol-addled failures of memory. Either way, the court’s ability to place reliance on Mr. Mackenzie as a witness whose recollection of events can be trusted is utterly compromised. [ 26 ] The mechanics of the stabbing incident as presented in the Crown’s evidence—a factual point of central importance—present further problems of proof for the Crown in its prosecution of Mr. Davies. In this regard, the testimony of Mr. Mackenzie was to the effect that the stabbing occurred when he had Mr.

Davies lying on the ground and was sitting on top of him, punching him repeatedly in the face. On that account, Mr. Davies is said to have pulled a knife out of a pocket in his jeans with his right hand and stabbed Mr. Mackenzie in the torso. Mr. Mackenzie was also careful to say to police, and at trial, that there was no one else nearby to witness the stabbing when it took place. [ 27 ] This description is wholly at odds with that given by Mr. Loehndorf—the other Crown witness who claimed to have observed the stabbing. On Mr.

Loehndorf’s version, three people were present and very close to one another when the stabbing occurred—that is, Mr. Mackenzie, Mr. Loehndorf and the assailant. As the conflict began to escalate Mr. Loehndorf urged Mr. Mackenzie and the other unidentified combatant to settle down. He was quite certain that Mr. Mackenzie was well aware of his presence; he was speaking sternly to both, after all, trying to prevent their altercation from becoming violent. On Mr. Loehndorf’s account, the stabbing occurred under circumstances where both Mr.

Mackenzie and the other, unidentified combatant were on their feet and it represented an escalation from an “old fashioned” fist fight. [ 28 ] The two fights, each involving a stabbing, that emerge from the testimony of these two key Crown witnesses could not be more different. As a Vetrovec witness, Mr. Loehndorf’s ability to give corroborative or “confirmatory” evidence is very limited at best but in almost every detail his evidence concerning the stabbing incident differs markedly from that that of Mr. Mackenzie. Indeed, on Mr. Mackenzie’s account, there was nobody nearby—not even Mr.

Loehndorf—when, while sitting on Mr. Davies’ abdomen and

pummelling him with punches to the face, Mr. Davies managed to pull out a knife and stab him. Mr. Loehndorf [ 29 ] Mr. Loehndorf is a long-time friend of Mr. Mackenzie and was the Crown’s other key witness. [ 30 ] As I have acknowledged earlier in these Reasons for Judgment, Mr. Loehndorf did not give direct evidence identifying Mr. Davies as Mr. Mackenzie’s assailant. Going into the events of December 6, 2014, Mr. Loehndorf did not know Mr. Davies at all. He was not called upon by Crown counsel, Mr. Beirne, even to make a dock-identification of Mr. Davies as the person he claims he saw stab Mr.

Mackenzie. [ 31 ] There were two occasions, separated by several hours, on which it is said that he met up with Mr. Mackenzie on the night in question—the first to bring him some whiskey and the second to take him to a ferry—in which Mr. Loehndorf said he met and saw the same male accompanying Mr. Mackenzie. Mr. Mackenzie’s own evidence was that when he went down to get the whiskey from Mr. Loehndorf he was accompanied by Mr. Davies. This, the Crown rightly argues, is “some evidence” that the man who engaged in the stabbing recounted by Mr. Loehndorf was the same man who was with Mr.

Mackenzie on the first occasion to obtain the whiskey. But, with respect, this evidence is for a variety of reasons very weak. Mr. Loehndorf told police, for example, that based on what he saw and heard, he believed that Mr. Mackenzie and the man who stabbed him were unknown to each other. Yet evidence given my Mr. Mackenzie himself establishes that he and Mr. Davies were well known to each other. While Mr. Loehndorf sought to distance himself from that part of his statement during cross-examination, he nevertheless grudgingly accepted that it had been his impression that Mr.

Mackenzie and his assailant were strangers to each other and that that impression was recorded in a statement taken very close in time to the events in question. [ 32 ] Though he is a less “disreputable” witness than Mr. Mackenzie (as that term is used in Vetrovec ), Mr. Loehndorf is a Vetrovec witness nevertheless. His criminal record, like Mr. Mackenzie’s, is lengthy and reveals numerous offences involving dishonesty. Interestingly, like Mr. Mackenzie, Mr.

Loehndorf also testified to having, on several occasions, committing frauds upon the court by falsely entering guilty pleas to offences for which he now maintains he is innocent. [ 33 ] Like Mr. Mackenzie, Mr. Loehndorf also repeatedly attempted to retreat from things he said in police statements that were brought to his attention during cross-examination. In each such instance, what was said in his police statements was generally uncongenial to the Crown’s case and the evasive answers and qualifications Mr.

Loehndorf offered in that regard would, if accepted, have had the effect of neutralising the content of his statements and bolstering the Crown’s case against Mr. Davies. I have discussed the issue of motive to mislead above in my description of Mr. Mackenzie’s testimony, acknowledging that while not a central question it is nevertheless a question of some moment. I will say here again that the assiduous efforts Mr. Loehndorf made to shape his testimony to maximise the prospects of conviction of Mr. Davies appeared not to be random but, rather, to reflect a motive on his part to assist his friend Mr.

Mackenzie in getting the result in this prosecution for which Mr. Mackenzie was hoping. [ 34 ] Because he is a Vetrovec witness, I approach the testimony of Mr. Loehndorf with the same wary eye that I have used in approaching the testimony of Mr. Mackenzie. Mr. Loehndorf gave the court plenty of reason to be concerned about both his credibility and the reliability of his evidence, some of which I have mentioned above. Additionally, there is, in Mr.

Loehndorf’s case, the fact that he has suffered a brain injury which, while not bearing on his credibility, does nevertheless further compromise the reliability that can be placed on his testimony. There were indications throughout his testimony that the memory and other cognitive impairments he referred to as being attributable to his brain injury were, indeed, showing themselves as he gave his evidence at trial. [ 35 ] It will be recalled that Mr. Loehndorf is the primary source of concern expressed by Mr. Nathanson about contamination of Mr. Mackenzie’s evidence. Mr. Mackenzie did not deny that he and Mr.

Loehndorf discussed the events of December 6 th when Mr. Loehndorf came to visit him in hospital afterward; however, perhaps because he recognises the implications of those discussions, Mr. Loehndorf denied getting into any details of what he recalled witnessing when talking to Mr. Mackenzie. As is plain from what I have said above when discussing Mr. Mackenzie’s evidence, I am unable to credit Mr. Loehndorf’s denials in this regard as being truthful and I do find that contamination of the kind referred to by Mr.

Nathanson in submissions did occur. [ 36 ] Altogether, being a Vetrovec witness who fell well short of giving direct evidence of identification of Mr. Davies and Mr. Mackenzie’s assailant, and further being a witness who described an entirely different altercation with the assailant than the one described by Mr. Mackenzie in his testimony, I am unable to see how Mr. Loehndorf’s evidence can give any material assistance to the Crown in proving that it was Mr. Davies who assaulted Mr. Mackenzie. Indeed, by telling police during his police statement and then testifying at trial that the assailant and Mr.

Mackenzie were unknown to each other and that the assailant had no visible tattoos (unlike Mr. Davies, according to Mr. Mackenzie), in important ways Mr. Loehndorf’s evidence cuts directly against what the Crown seeks to prove in its prosecution of Mr. Davies. Brian Black [ 37 ] Mr. Black was the only Crown witness to give viva voce evidence at trial who was wholly independent and had no alignment or any association with either Mr. Mackenzie or Mr. Davies. Mr. Black simply lived in the same apartment building where the combatants and two women began their evening’s festivities.

His sixth-floor window faces onto the area outside the building where the altercation between Mr. Mackenzie and his assailant took place. [ 38 ] As a trier of fact hearing a Crown case resting principally on the evidence of two Vetrovec witnesses (Mr. Mackenzie the complainant and his friend Mr.

Loehndorf), I must give the testimony of those witnesses “special scrutiny”, be mindful that it would be “dangerous” to act on the “unconfirmed evidence” of those witnesses and be watchful for other independent evidence that is confirmatory of the material content of the evidence given by the Vetrovec witnesses. [ 39 ] Mr. Black’s testimony is thus an important source, or not, of “confirmatory” evidence that will assist in determining what faith the court can place in the testimony of Messrs. Mackenzie and Loehndorf.

[ 40 ] Mr. Black had comparatively little he could offer. His location on the sixth floor of the apartment building placed him at considerable distance from the parking lot across the street where he witnessed certain events. He was awakened by arguing and what seemed to him to be an altercation unfolding down below. However, what he witnessed does not bear much similarity to the versions of the stabbing altercation given by either Mr. Mackenzie or Mr. Loehndorf. Indeed, he saw no stabbing at all. Mr.

Black did see two adult males—one much larger than the other—having a verbal altercation while standing in the parking lot, but he situated that altercation near a parked SUV. The altercation described by Mr. Mackenzie was nowhere near a parked vehicle and the altercation described by Mr. Loehndorf took place close to his parked pickup truck. Mr. Loehndorf could not say at all where in the parking lot the altercation occurred; Mr. Mackenzie situated it at a location a considerable distance from where Mr. Black situated it. Mr. Mackenzie’s version had him on the ground sitting on Mr. Davies while Mr.

Black’s combatants (like Mr. Loehndorf’

s) conducted their altercation while standing. Mr. Black—who had no reason to be untruthful—saw one of the combatants open and close a door and then the hatch back of the SUV that was nearby where they were arguing. That was an aspect that was not only not featured in the accounts of Mr. Mackenzie and Mr. Loehndorf, it was expressly denied by both of them. There were other areas of disagreement between the testimony of Mr. Black—regarding how the combatants were dressed, for example—and the testimony of Messrs. Mackenzie and Loehndorf. [ 41 ] Altogether, when looking as I must to Mr.

Black’s independent evidence for content that confirms the evidence of the Vetrovec witnesses called by the Crown, I found very little and a great deal that contradicted that evidence. Admissions [ 42 ] Remaining a short while longer with the subject of independent sources of confirmation of the questionable evidence of Mr. Mackenzie and Mr. Loehndorf, I also note that it is formally admitted (see Exhibit, para. 12) that Mr. Davies was wearing a black t-shirt throughout the evening/early morning in question. This evidence is entirely inconsistent with the ways in which both Mr. Mackenzie and Mr.

Loehndorf say the assailant was dressed. I note as well that Mr. Mackenzie and Mr. Loehndorf’s accounts regarding what the assailant was wearing on top also do not concur with each other. Conclusions on Identification [ 43 ] As should be plain from the foregoing, I have found the Crown’s case—rooted as it is, mainly in the evidence of two Vetrovec witnesses—to be significantly lacking in both reliability and credibility. I have turned, as I am required to do, to such independent evidence as has been placed before me to determine whether there is anything that tends to confirm material parts of the evidence of Mr.

Mackenzie and Mr. Loehndorf. Far from providing that confirmation, the independent evidence—mainly that of Mr. Black—further undermined the court’s confidence in the testimony given by Mr. Mackenzie and Mr. Loehndorf. [ 44 ] In these circumstances, the court cannot say on the evidence advanced by the Crown that, to track the language of Starr , it “close to certain” that the assailant who stabbed Mr. Mackenzie was the accused, Mr. Davies. [ 45 ] To his credit, and in a way that properly reflects the true function of the Crown in a criminal prosecution, Crown counsel Mr.

Beirne was careful not to overstate the strength of the Crown’s case in his closing submissions. He acknowledged that his responsibility was to do his best with the cards he was dealt. Many of those cards did not come truly into focus until the trial began. Mr. Beirne stopped short of telling the court that, in this case, there was sufficient evidence of sufficient quality to permit the court to come confidently to a guilty verdict. [ 46 ] To his credit, and in a way that properly reflects the function of counsel defending a client in a criminal prosecution, Mr.

Nathanson assiduously identified every inconsistency and weakness in the Crown’s case against his client and then exposed each one in the course of compelling cross-examinations and cogent closing submissions. He did so in a properly hard-hitting but unfailingly mannerly fashion. A delicate balance was struck. I wish to acknowledge particularly that Mr. Nathanson approached the tasks of cross- examining Mr. Loehndorf, and then making submissions about his evidence, with proper sensitivity given the mild cognitive challenges with which Mr. Loehendorf is apparently burdened.

DISPOSITION [ 47 ] As I mentioned at the beginning of these Reasons for Judgment, the only issue that was truly in dispute in this prosecution was the issue of identification. The Crown has failed to prove to the requisite standard of “beyond a reasonable doubt” that it was the accused, Mr. Davies, who assaulted the complainant Mr. Mackenzie. [ 48 ] It follows that I find Mr. Davies not guilty. The charge of aggravated assault brought against Mr. Davies under Indictment No. 93490 is dismissed. [ 49 ] Order accordingly. _________________________________ Thomas S. Woods, P.C.J.