R. v. Bruce et al., 2011 ONCJ 375

COURT FILE No.: KENORA 092156 Citation: R. v. Bruce et al. , 2011 ONCJ 375 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MATTHEW BRUCE MIKE FLUERY JOSH RHEAULT Before Justice A. T. McKay Heard on January 10, 11, 12, 13, and 14; May 17, 18, 2011 Reasons for Judgment released on July 15, 2011 Mary Anne Mousseau ................................................................................................ for the Crown R. Sinding ................................................................................................................ Matthew Bruce D.

Elliott ...................................................................................................................... Mike Fluery P. Kirby ...................................................................................................................... Josh Rheault MCKAY J.: BACKGROUND [ 1 ] The accused are charged with common assault. In addition, Mr. Bruce is charged with possession of stolen property. There are related proceedings in which other individuals are charged with other offences. The common thread is that the victim in each case is alleged to be Mr. Edward Wilson. Mr.

Wilson was in attendance at the bar at the Tower Inn in Kenora on March 20, 2009. Tragically, Mr. Wilson died a violent death in the early morning hours of March 21 in the vicinity of the Tower Inn. The accused in this case face common assault charges as a result of an incident which occurred shortly prior to Mr. Wilson’s death. THEORY OF THE CROWN’S CASE [ 2 ] The theory of the Crown’s case is as follows. Mr. Wilson was with a friend and was socializing at the bar at the Tower Inn. The accused were involved, to varying degrees, with a weekend hockey tournament in the Kenora area.

They were out socializing at different locations on the night of March 20 and early morning hours of March 21, 2009. [ 3 ] The Crown alleges that shortly before the closing of the bar, Mr. Wilson and his friend were outside smoking. A number of other people were outside at the same time, including Ms. Duchene and Mr. Ivall. An argument ensued between Mr. Wilson and Mr. Ivall. Mr. Wilson eventually struck Mr. Ivall, who retreated a short distance. Mr. Ivall’s partner, Ms. Duchene, then argued with Mr. Wilson and kicked him in the face. Mr. Wilson responded by slapping Ms. Duchene.

At some point while these events were unfolding, the accused exited the bar and saw Mr. Wilson slap Ms. Duchene. They responded by attacking Mr. Wilson, knocking him to the ground and kicking him. Two other individuals, Mr. Lake and Mr. Haggar, joined in the punishment being inflicted on Mr. Wilson. Mr. Wilson got to his feet, and fled around the western side of the Tower Motel. He was pursued by the accused and Mr. Lake and Mr. Haggar. Around the side of the motel, he was attacked by some combination of the five men, one of whom delivered a soccer style kick to Mr. Wilson’s head.

The five men then fled the scene, leaving Mr. Wilson in an unconscious state on the roadway. Ms. Duchene and Mr. Ivall attended at that scene, and subsequently murdered Mr. Wilson. Mr. Lake had used the opportunity to pick up Mr. Wilson’s wallet when the altercation was ongoing. Mr. Lake stole the money from the wallet and disposed of it, and subsequently gave Mr. Bruce some of the money. POSITION OF THE DEFENCE

[ 4 ] At the close of the Crown’s case, both Mr. Rheault and Mr. Bruce testified. It is their position that when leaving the bar, they saw a man strike a woman. It appeared that he was going to continue an assault on the woman and accordingly Mr. Bruce struck Mr. Wilson with one blow to the head. Mr. Wilson fell down, got up and went around the side of the building. Two other individuals ran after Mr. Wilson. Mr. Rheault followed them around the building where he saw Mr. Lake and the other individual assaulting Mr. Wilson. Mr. Wilson was kicked in the head. Mr. Rheault ran and checked Mr.

Wilson, who appeared to be unconscious. When Mr. Rheault looked up a woman was standing beside them. He asked the woman if she would take care of Mr. Wilson and she responded that she would. He then left. EVIDENCE [ 5 ] The Court heard from a number of witnesses. Some of those witnesses set the stage for what was occurring in the evening. Other witnesses related to things that the accused may or may not have said during the early morning hours of March 21, 2009 while they were at a social gathering of people connected with the hockey team. I do not propose to review all of the evidence in detail.

I will focus my comments on the Crown witnesses who were nearby the critical events that occurred at the alleged assault. [ 6 ] Those witnesses include Crystal McDonald and Frederick Fisher. They are in a domestic relationship. Both of those individuals know the accused to see them. They also are familiar with Mr. Ivall and Ms. Duchene. They were drinking in the Tower Inn that evening and were outside the bar when the altercation began. Gary Lake is accused in separate proceedings of assaulting Mr. Wilson. Similarly, his partner, Ms. Costa, was in the area when the altercation erupted.

Ian Haggar is also charged in separate proceedings in assaulting Mr. Wilson. The evidence is lengthy and I will simply comment briefly on the evidence of some of the witnesses. EVIDENCE OF CRYSTAL MCDONALD [ 7 ] Ms. McDonald is from the Minaki area, and has lived there her entire life. Each of the accused has a connection with the Minaki area, and accordingly she knows them. She also knows Ms. Duchene, who she described as “somewhat a friend”. She confirmed that at various times she had “partied” with Ms. Duchene. She also had a drink with Ms. Duchene on the night in question. Ms. McDonald and Mr.

Fisher have been in a dating relationship for a number of years. She, Mr. Fisher and Crystal Leadbeater, another friend, had been in Thunder Bay. Mr. Fisher had to take a pre-fitness test for his employment. After he completed his pre-fitness test, they went drinking in Thunder Bay. They stayed overnight and the next day got up and drove to Kenora. They arrived in Kenora at the Tower Motel at approximately 7 or 7:30 p.m. on March 20. Almost immediately, they began drinking in the bar. Ms. McDonald’s evidence is that shortly before bar closing, she went outside with Mr. Fisher, Ms. Duchene and Mr.

Ivall for a smoke. Mr. Ivall got into a confrontation with Mr. Wilson, who then punched Mr. Ivall. Mr. Ivall moved away from Mr. Wilson. Ms. Duchene then kicked Mr. Wilson in the face. Mr. Wilson responded by slapping Ms. Duchene. The accused had witnessed the slap of Ms. Duchene by Mr. Wilson. They responded by knocking down Mr. Wilson. All three accused and another male were kicking Mr. Wilson while he was on the ground. Mr. Wilson managed to get up and run away. All four men chased Mr. Wilson around the side of the Tower Motel. The kicking episode in the front of the motel lasted for approximately 15 seconds.

Approximately 30 to 60 seconds after chasing Mr. Wilson around the west side of the Tower Motel, the accused and the other individual who had been kicking him all ran back, jumped in a truck belonging to the Fluery family, and left the scene. [ 8 ] Ms. McDonald gave a statement to the police on March 21, 2009. When she gave that statement, she knew that someone was dead. The police asked her the following question: “did you see anyone fighting or arguing during the night?” She answered “no”. [ 9 ] Her evidence at the trial was that she was uncertain who pushed Mr.

Wilson down, but she was absolutely certain that she saw all three accused kick Mr. Wilson. Similarly, she was absolutely certain that no one punched Mr. Wilson. The altercation occurred in the narrow space between the front of the truck and the front of the building. She agreed that she was looking past Ms. Duchene to see what was happening. In her view, while she was making these observations, she was intoxicated, but not drunk. Her view is that when one is drunk, one is completely out of it. She confirmed that Mr. Fisher was similarly intoxicated. Her evidence was that Mr.

Fisher also has “a bad eye” and needs prescription glasses, but does not wear them. Ms. McDonald had given a second statement to the police in writing on March 25, 2009. She followed that up with a video statement to the police on March 27, 2009. She agreed in cross-examination that during the statement given March 27, 2009, she was asked “do you remember who was kicking him?” She answered, “pretty much all of them” . It was put to her in cross-examination that there was an amount of uncertainty to that statement. She agreed that there was.

She also agreed that her memory of the events was better in March of 2009, then when she testified in January of 2011. However, she maintained that she saw all three accused kicking Mr. Wilson. EVIDENCE OF DENNIS FISHER [ 10 ] Mr. Fisher is from the White Dog First Nation. He knows all of the accused to see them. He confirmed that he was drinking at the bar at the Tower Motel on the evening of March 20, 2009. He testified in direct examination that he had approximately five drinks. In cross-examination by Mr. Kirby, he indicated that he had six or seven drinks.

When confronted with his evidence at the preliminary inquiry for Ms. Duchene and Mr. Ivall, he agreed that he testified at the preliminary inquiry that he had eight, nine or ten drinks and “that was just a little bit of coolers”. He agreed later in cross-examination that he had had at least three shots of liquor in addition to that. Eventually, he agreed that he was simply guessing as to how much he had to drink that evening. [ 11 ] Mr. Fisher testified that while outside the bar shortly before closing, he observed an argument between Mr. Wilson and Mr. Ivall. Mr. Wilson punched Mr. Ivall in the face, and Mr.

Ivall retreated some distance. Ms. Duchene then kicked Mr. Wilson in the face, and he responded by slapping Ms. Duchene. His evidence is at that point, he saw Mr. Rheault and Mr. Bruce run around a vehicle and exclaim “ let’s get him ”. At that point, he indicated that the accused started punching and kicking Mr. Wilson, and others also joined

in. Mr. Wilson then ran away and the three accused and two unknown males chased Mr. Wilson around the side of the Tower Motel. He and Ms. McDonald then walked over to speak to Tim Fluery, who was sitting in a truck. A short time later, Mr. Rheault, Mr. Mike Fluery and two unknown males ran back and jumped in the truck. Mr. Rheault said to him “once you do that to your girlfriend, I’ll do the same”. The truck then left with its occupants. He saw Mr. Bruce leave in another vehicle.

He agreed that he was intoxicated at the time. [ 12 ] There was a strange, fairly lengthy series of answers to questions in cross-examination in which Mr. Fisher agreed that he had a lazy left eye, but denied that he had glasses, needed glasses or had any blurriness of vision in that eye. When confronted with his testimony at the preliminary inquiry for Mr. Ivall and Ms. Duchene, he agreed that he indicated in cross-examination that his left side was “my blind side”. However, he denied that he had difficulty seeing out of his blind side.

Eventually, he agreed that his left eye did not focus as much as his right eye on occasion, and eventually he agreed that he had difficulties seeing out of his left eye. [ 13 ] At various points in cross-examination, Mr. Fisher agreed that with respect to much of his evidence, he was guessing and trying to piece things together. His evidence indicated that when the altercation between Mr. Ivall and Mr. Wilson broke out, he and Ms. McDonald moved away from the door and were approximately at the mid-point of the truck that the altercation eventually took place in front of.

If that evidence is correct, when looking at the evidence as a whole, in the court’s view it would have been very difficult for him or Ms. McDonald to have any type of accurate or unobstructed view of the events that happened during the altercation. However, Mr. Fisher indicated that he definitely saw punching and kicking. When pressed in cross-examination, he agreed that he didn’t see the faces of exactly who was kicking and punching. He testified that when he is sober his memory is really good, but that when he is drunk he sometimes remembers bits and pieces. Mr.

Fisher agreed that in his initial statement to the police on March 21, 2009, he lied. At that point he simply indicated that he saw a guy run down the walkway in front of the Tower Motel approximately 20 feet from him, and that there were five or seven males that he didn’t name running after the individual. He indicated that he lied because Ms. McDonald asked him to keep her out of it. Regarding the position he was in to observe the altercation, his evidence was that he probably leaned over to see what happened.

Eventually when pressed in cross-examination, he agreed that he really couldn’t say who did what, and that to do so he would be guessing. [ 14 ] At another point in cross-examination, when pressed by counsel for Mr. Fluery, he agreed that he testified at the preliminary inquiry for Mr. Ivall and Ms. Duchene that when the altercation broke out between Mr. Wilson and Ms. Duchene, Mr. Rheault and Mr. Bruce went towards the altercation, while Mr. Fluery remained standing beside he and Ms. McDonald. EVIDENCE OF GARY LAKE [ 15 ] As indicated, Mr. Lake was called by the Crown as a witness.

He is separately charged with assaulting Edward Wilson, and with possession of stolen property. Mr. Lake testified that he currently lives in Thunder Bay and works as a cook. He is in a common-law relationship with Lisa Costa and they have a one year old child. Previously, he lived in Kenora. He has a connection with Minaki, and accordingly knew all three accused. On the evening of March 20, 2009, he was having drinks alone at home. Ms. Costa was working until approximately 10:00 p.m. When she arrived at home he convinced her that they should go out to the bar. They attended Hap’s bar in downtown Kenora.

He testified that at the bar he met Matt Bruce. His evidence is that he and Mr. Bruce talked about obtaining drugs. Mr. Lake described himself as being really deep into the drug culture at the time, and always looking for cocaine. His evidence is that he and Mr. Bruce agreed to go look for some cocaine. The Tower Motel was a place where he could usually find cocaine, so he, Mr. Bruce and Ms. Costa went to the Tower Motel in Ms. Costa’s car. [ 16 ] Mr.

Lake’s evidence is that he underwent a treatment program in Thunder Bay from June 25, 2009 to July 29, 2009, and has been drug free since that time, although he continues to drink alcohol. He indicated that they went to the Tower Motel at approximately 2:00 a.m. on March 21. He went inside and was unsuccessful in locating any cocaine, so went back outside to smoke a cigarette. He was nearby the door when there was a commotion caused by an older man and a younger woman arguing about something. The older man slapped the woman.

His evidence is that Matt Bruce and Josh Rheault were standing a short distance from him and they were the first ones to, in his words, “attack the guy”. His evidence is that shortly after they began, Mike Fluery joined in the attack. At that point, he came around and tried to get involved and unsuccessfully attempted to knee the man in the head. He then noticed the man’s wallet had fallen to the ground. His evidence is that he moved back and covered up the wallet and at that point the fight moved down around the corner of the building.

He indicated that he kept the wallet covered long enough to ensure that no one saw it, and after the others went around the corner of the building, he picked up the wallet and went towards the rest of them. He removed $580.00 from the wallet and threw the wallet against the side of the building. He indicated that Ms. Costa was beside him while he did so. He then went to check on the condition of the man, who he described as pretty roughed up. He indicated that he and the accused then left the scene. His evidence was that at the initial stage of the altercation, all three accused were punching the victim.

At various stages of the investigation, in different statements and sworn testimony, Mr. Lake has multiple versions of the events that occurred both in front of the building, and around the side of the building. Mr. Lake also testified that he provided Matt Bruce with some of the money from the wallet and informed Mr. Bruce where the money came from. [ 17 ] I will comment on the credibility of the various witnesses later in this decision. However, rather than attempt to recount the many glaring inconsistencies in Mr.

Lake’s testimony throughout the course of this trial, in the various statements that he has given, and at the preliminary inquiry for Ms. Duchene and Mr. Ivall, I will simply comment on his credibility at this point. Mr. Lake is an admitted liar and thief, who agreed that he lied to the police during the course of this investigation. At the time of trial, he was awaiting trial on his own charges related to this incident. The glaring contradictions and inconsistencies in his evidence at various points are too numerous to recount.

As one small example, on the subject of his involvement in the altercation at the front of the building, his statement to the police starts with him grabbing Mr. Wilson and kneeing him. The next statement changes to him grabbing Mr. Wilson and having his knee just brush him. By the time it came to sworn testimony, he had attempted to knee Mr. Wilson, but completely missed. In short, his evidence is the least believable evidence that I have ever encountered during any stage of my legal career. It deserves absolutely no credit.

EVIDENCE OF LISA COSTA [ 18 ] Lisa Costa is 28 years old and currently lives in Thunder Bay. She works as a counsellor for young offenders and has done so for six years. Previously she was working for the same organization in Kenora. She is in a common-law relationship with Gary Lake. They have a child who was approximately one year old at the time Ms. Costa testified in this trial. [ 19 ] Her evidence is that on the evening of March 20, 2009, she and Mr. Lake were home having a “movie night”. They had no plans to go out. At approximately midnight they decided to go to Hap’s. While there, they met Mr.

Bruce, who they both knew. Near the end of the night, at approximately 2:00 a.m., they decided to give Mr. Bruce a ride back to the Super 8 motel in the western part of Kenora. There was to be a party for members of the hockey team that Mr. Bruce was involved with at the hotel after closing of the bars. While on the way, they decided to stop for a drink at the bar at the Tower Motel. They all went inside, but were unable to obtain a drink because of the later hour. They went back outside and were standing outside socializing for approximately ten minutes.

A man began arguing with a woman, and she assumed that it was a domestic relationship. The man slapped the woman across the face, and she indicated that others then became involved. After being struck, the woman said words to the effect of “hit me again”. At that point, her evidence is that Mr. Bruce came around the front of a vehicle and approached the man from behind and hit him with what she described as a “sucker punch”. Her evidence is that after hitting the man, Mr. Bruce said, “ you want to hit a girl. How does that feel ?” [ 20 ] Her evidence was that after Mr.

Bruce punched the man everything happened quickly. People started to move towards them. Mr. Rheault approached as if he was going to defend his friend Mr. Bruce. The man turned around and the entire confrontation moved around towards the west side of the building. Her evidence was that Mr. Lake was standing beside her and that as she went around the west side of the building Mr. Lake was following her. [ 21 ] She testified that the argument continued around the west side of the building. There were a lot of people there. Matt Bruce and Josh Rheault continued to beat the man up.

She gave evidence that at that point Mr. Bruce and Mr. Rheault were kicking the individual. She turned to Mr. Lake and told him that they needed to get out of there. She told him to get Mr. Bruce because he originally came with them. At that point Mr. Bruce came back. She and Mr. Lake left with Mr. Bruce and went to the party at the Super 8 Motel. Mr. Lake told her at the Super 8 motel that he had either taken a wallet or found a wallet. Her evidence in chief was that she never saw Mr.

Lake do anything. [ 22 ] Her cross-examination revealed numerous inconsistencies in her evidence at trial, at the preliminary inquiry for Mr. Ivall and Ms. Duchene, and in the two statements which she had provided to the police. Her statements to the police were given on March 21, 2009, and April 20, 2009. Her testimony at the preliminary inquiry was in January of 2010.

She agreed that her memory would have been better at the time closer to the event. [ 23 ] She agreed that during her statement of March 21, 2009, she indicated to the police that at the original altercation in the front of the building, “all of a sudden some said that they went around the car in behind the individual”. She also told the officer that, “one of them did something to the guy and he was on the ground”.

Later she indicated, “I don’t know if it was from Matt or Josh or who it was, but when they came around and hit him he was down on the ground and before I knew it, like I walked all the way around and they were already around there”. Ms. Costa agreed that at the time, Mr. Lake was a regular cocaine user. He was intoxicated that evening. Mr. Lake tended to get aggressive when he got intoxicated. She agreed that if there was an altercation, Mr. Lake would want to be in the middle of it. [ 24 ] At one point, in the original statement, she was asked whether it was Mr. Bruce or Mr. Rheault who struck the man.

Her answer was, “could have even been Gary. I don’t know. I couldn’t tell you”. At numerous points in various statements or testimony, Ms. Costa confirms that it happened so fast that she could not remember who hit who or who hit first. Essentially, her statements to the police begin with being quite uncertain as to what happened, and her testimony at this trial culminates in her being certain that Mr. Bruce and Mr. Fluery were on the west end of the Tower Motel kicking Mr. Wilson as he was down. Similarly, as time went on, she became quite certain that she did not see Mr. Lake do anything. As with Mr.

Lake’s evidence, one could spend many pages detailing all of the inconsistencies and contradictions contained in Ms. Costa’s evidence. EVIDENCE OF IAN HAGGAR [ 25 ] Mr. Haggar was called as a Crown witness. He is separately charged with assaulting Ed Wilson. He testified that on the evening of March 20, he attended Hap’s. He arrived around 9:30 or 10:00 pm. He met Mike Fluery and Tim Fluery there. They have been friends of his for years. He also had known Mr. Rheault for a number of years. Near closing of the bar, he went with Tim Fluery, Mike Fluery and Mr.

Rheault, intending to attend a party at the Super 8 Motel. However, they first had to pick up Mr. Bruce, who had gone to the bar at the Tower Motel. They attended at the Tower Motel and began to go into the building. As they were about to enter, Mr. Bruce and Mr. Lake exited. There was an argument between a man and a lady occurring right outside the door. [ 26 ] Mr. Haggar’s evidence is that during the argument, he heard the loud sound of either a punch or a slap. At that point, other people got involved in the altercation. The only one that he recognized getting involved was Matt Bruce. He saw Mr.

Bruce punch the man who we now know to be Mr. Wilson. After that there was a scrum, which then moved around the west corner of the motel. When pressed, he indicated that Mr. Wilson ran around the west corner of the hotel, and he, Mike Fluery, Matt Bruce, Josh Rheault, and Gary Lake ran after him. His evidence is that another fight broke out around the corner. When asked who was involved in that fight, he indicated himself, Matt Bruce, Mike Fluery, Josh Rheault and Gary Lake. He indicated that he punched Mr. Wilson once or twice. He indicated that he was not the only one hitting Mr.

Wilson, but he could not say who else struck the man. Essentially his evidence was that it was dark and he was focussing on what he was doing. He also testified that it all happened very fast. The initial altercation in front of the building lasted a couple of seconds, and the altercation around the west side of the building lasted for approximately ten seconds. His evidence was then that Mr. Wilson was left lying on the ground. [ 27 ] Mr. Haggar testified that he never spoke to the police about the incident until approximately 10 months later. The reason

for that was that he was scared and embarrassed. At one point, during cross-examination by Mr. Bruce’s lawyer, Mr. Haggar agreed that it was possible that after Mr. Bruce punched Mr. Wilson at the front of the motel, Matt Bruce stayed behind to be near the woman who had been slapped. He further agreed that he recalled Mr. Bruce punching the man in the front of the building, but couldn’t really recall much of what Mr. Bruce did after that. [ 28 ] Essentially, Mr. Haggar provides very detailed evidence up to the point at which the altercation broke out in the front of the building.

After it broke out, his memory apparently fails him, and he could provide no significant detailed account of what happened. One might also conclude that Mr. Haggar was simply very evasive on the stand. EVIDENCE OF TIM FLUERY [ 29 ] Tim Fluery is the younger brother of the accused Matt Fluery. At the time of the incident, he was not of legal drinking age. Accordingly, he was the designated driver driving his brother, Mr. Rheault and originally Mr. Bruce from place to place that evening. [ 30 ] On the evening of March 20, 2009, after watching the hockey game, he took his brother, Mr. Rheault and Mr. Bruce to Hap’s.

He was asked for proof of age, so he left and waited in the truck. Near closing, Mr. Rheault, his brother and Ian Haggar came out of the bar. They discussed finding Mr. Bruce. After a telephone call, they went to the Tower Motel to look for Mr. Bruce. He remained in the truck while the others went in. He recognized Crystal McDonald and her boyfriend outside of the bar smoking. As people were coming out of the bar, a man hit a woman. Mr. Bruce turned and punched the man once. At that point there was a huddle of people and the man got up and ran around the corner.

At that point, Tim Fluery could no longer see what was happening. Everyone came back to the truck a short while later and they went to the Super 8 Motel. [ 31 ] Tim Fluery originally gave a statement to the police in which he omitted to tell them about the presence of Ian Haggar, because “he didn’t want to be the one to squeal”. EVIDENCE OF DAWN FLOOD [ 32 ] Ms. Flood was also called by the Crown. She has lived in Minaki for 12 years at the time of her testimony. Her spouse was involved in the hockey team that the accused were connected with.

On March 20, 2009, she attended the hockey game, the beer gardens and then the Super 8. Because she had been driving to the point of arriving at the Super 8, she did not drink prior to that time. While at the Super 8, she drank Vodka and Crystal Light. She has known all three accused for many years. [ 33 ] Ms. Flood contended that well into the early morning hours of March 21 while at the party at the Super 8, she spoke with Matt Bruce. Her evidence is that Mr. Bruce was nervous and worked up.

He indicated to her that he saw a man hit a female and wasn’t happy about it so he hit the man and the man fell down and was knocked out. According to her, Mr. Bruce indicated that he hit the man a couple of times. [ 34 ] Ms. Flood did not provide a statement to the police until March 16, 2010, approximately one year after the event. The statement that she provided was a written statement. Ms. Flood testified in cross-examination that the conversation that she had with the police officer was approximately one to one and a half hours in duration.

She was unaware of whether the officer wrote her answers to his questions verbatim. She was uncertain of how much she had to drink at the Super 8, but was “probably feeling good that night”. She agreed that because of the fact that there was a death involved, everyone was talking about the incident in March of 2009. At the time of testifying at trial, her memory was that Matt Bruce specifically said that he hit a man who hit a woman. She did not have a specific recollection of Mr. Bruce saying that he hit the man more than once. DEFENCE EVIDENCE EVIDENCE OF JOSH RHEAULT [ 35 ] Mr.

Rheault is currently 26 years old. He works in the construction industry and is currently in a carpentry apprenticeship program. Mr. Rheault now lives in Winnipeg, but was born in Minaki and lived there until recently. He has no criminal record and this is the first time that he has ever been charged with a criminal offence. He testified that he is a non-smoker, does not use drugs and is an occasional social drinker. [ 36 ] On March 20, 2009, he was watching the hockey tournament. He was not playing in the tournament that year because of an injured knee.

He watched his team’s 8:00 p.m. game that evening from the stands. When it ended, he joined them in the beer gardens where he had three or four beer and stayed until approximately midnight. He then checked into the Super 8 Motel, and went to a nearby bar. At approximately 1 or 1:30 a.m. he went to Hap’s. After socializing and having a couple of drinks, Mr. Bruce called and asked if he could be picked up at the Tower Motel. They arrived at the Tower shortly after 2:00 a.m. and went inside looking for Mr. Bruce. They located him and were walking out the front door of the Tower Motel. Mr.

Bruce was leading. [ 37 ] As they went outside, they heard what sounded like a slap. It appeared that a man had slapped a woman. Mr. Bruce said to him they should stop the man from slapping the woman again. They started towards the man and woman. He was leading. Just

before they got to the man, Mr. Bruce grabbed him by the shoulder and pulled him out of the way. Mr. Bruce punched the man in the side of the head. At that point, the man and the woman were less than a foot apart. After Mr. Bruce struck the man, he stepped back, and more people got involved. He saw Gary Lake start punching the man. He wasn’t sure what Mr. Bruce was doing at that point. Mr. Rheault was doing nothing and did not know where Mike Fluery was at that point. Mr. Lake was striking the man so he stepped in and picked the man up because he thought the man had been hit enough.

His intention was to separate the man from Gary Lake and anyone else involved. He cannot recall anyone being with Mr. Lake, but recalls another person hitting the man, who was on one knee covering his head. Mr. Rheault pulled the man to his feet by his coat and separated him from Mr. Lake by putting himself in between them. The man went in a westerly direction down the sidewalk. Mr. Lake and the other man ran after the man we now know to be Mr. Wilson. He followed Mr. Lake and the other man. Mr. Rheault was unaware of where Mr. Fluery or Mr. Bruce was at that time.

When he arrived at the corner of the Tower Motel, he saw Mr. Lake holding Mr. Wilson and kneeing him in the upper body. Mr. Lake was holding Mr. Wilson by the shoulders of his coat and kneeing him in the upper body. The other man, who Mr. Rheault did not know, was standing a little bit northeast of the other two not doing anything at that point. Gary Lake released Mr. Wilson, who went to his hands and knees, and at that point, the unknown man walked up and kicked Mr. Wilson in the head. He described it as a kick like you would kick a football. The unknown man then ran away, and Mr. Wilson went over on his back.

Mr. Lake then ran back to the Tower Motel. [ 38 ] Mr. Rheault’s evidence is that he ran to the man to check him. The kick appeared to be a very hard kick, and no one else was around the man when he ran to check on him. With the man lying on his back Mr. Rheault checked the man’s right arm and talked to him, although he appeared to be unconscious. Then someone else was standing beside them, a woman in dress shoes. He asked the woman if she would take care of the man and she said yes. Mr. Rheault was unaware of whether she had a connection with Mr. Wilson. The only visible injury that he observed on Mr.

Wilson was a cut above the eyebrow. He left and went back to the truck being driven by Tim Fluery and they left the area. Mr. Rheault indicated that he saw Dennis Fisher and Crystal McDonald when they first arrived at the Tower, but never saw them after the altercation. He never saw Ian Haggar at the Tower Motel. When they left the Tower Motel they attended a party at the Super 8 Motel. At that point, he was drunk. He went to bed shortly before 6:00 a.m. At the Super 8, Gary Lake offered him some money. He thought that odd and said no. [ 39 ] Mr. Rheault gave a voluntary statement to the police on March 22, 2009.

He was warned that officers were investigating a death and that he might be charged with assault. He declined to obtain legal advice, because he did not think he had any reason to. On March 27, 2009, he consented to the police seizing the clothing and footwear which he had worn on the evening of March 20, 2009. He indicated that he had not cleaned or altered the shoes or clothing before giving them to the police. Again he did not speak to a lawyer because he didn’t feel the need to. He voluntarily provided the police with an additional statement on April 23, 2009.

Again, he was warned that he could be charged and again he did not seek legal advice. In August of 2009, he retained counsel. In January of 2010 he voluntarily provided the police with another statement. Mr. Rheault testified that with respect to the first statement that he gave the police on March 22, 2009, prior to making the statement he saw Mr. Lake. Mr. Lake indicated that he was going to be providing the police with a statement and that it would be better if they didn’t mention Ian Haggar’s name. At that point, Mr. Rheault believed that Mr. Haggar was involved because someone else had told him that Mr.

Haggar was the unknown man who kicked Mr. Wilson in the head. That scared him. He had planned to mention Mr. Haggar’s name, but decided not to in his statement to the police. Mr. Rheault described himself as not being a fighter and indicated that he had never been in a fight in his life. In cross-examination, he denied that this whole episode was about “tuning up a guy who had hit a woman”. His intention was to separate the two people in the altercation. At another stage to his cross-examination, when asked about this being

an act of retribution, he gave an ambiguous response. However, the response was to a long multi-part question which he had asked to be repeated. The court places no particular weight upon his response to that question. EVIDENCE OF MATT BRUCE [ 40 ] Mr. Bruce is currently 27 years of age and lives in Winnipeg. He married in June of 2009. He is a head carpenter for a large construction firm and accordingly may supervise up to 25 men on any given job. He was playing in the hockey tournament the weekend of March 20, 2009. He arrived in Kenora and then played in the Friday night late game.

After the game he had one or two beer in the beer garden and then checked into the Super 8 Motel. From there he went to Hap’s. He met Gary Lake and Lisa Costa there and decided to get a ride with them back to the Super 8 Motel. Mr. Bruce’s wife was waiting at the Super 8 Motel. While on route to the Super 8 Motel Mr. Lake suggested that they stop at the bar of the Tower Motel for a drink. He indicated that he sort of knew Mr. Lake when they were children, and that he had not seen Mr. Lake in three to four years. Upon arrival at the bar at the Tower Motel, he indicated that Mr. Lake vanished after a few minutes.

He did not know anyone at the Tower Motel, and felt out of place. He called Mr. Rheault and asked Mr. Rheault to pick him up. Approximately ten minutes later, Mr. Rheault arrived at the bar of the Tower Motel, and they immediately left. Mr. Fluery had also come into the bar. Upon exiting the building, they heard the sound of a “huge slap”. He said to Mr. Rheault that they should stop this. To him it was obvious that the woman needed assistance. After hearing the sound of the slap, the man, who we now know to be Mr. Wilson, still had his arm on the shoulder of the woman as if to pull her in for another slap.

The woman was very upset and saying something. He was about three steps away. He then struck the man, punching him once with a closed fist on the cheek. To do so, he came up behind the woman’s shoulder, facing the man. He was unsure as to whether he yelled anything first because it happened so fast. After he struck Mr. Wilson, Mr. Wilson let go of the woman and stepped back a couple of steps. Mr. Wilson seemed a little dazed, so he turned and asked the woman if she was okay. When he turned around again towards Mr. Wilson, he saw Mr. Rheault walking him off to the west by his coat. He assumed that Mr.

Rheault was separating Mr. Wilson from the situation. He didn’t immediately follow Mr. Rheault, because he looked back at the woman. Then he followed Mr. Rheault at a slower pace. The altercation in front of the building was a large commotion with about ten people in the vicinity. [ 41 ] When Mr. Bruce arrived at the west corner of the Tower Motel where Mr. Rheault was standing, Mr. Wilson was on his hands and knees on the west side of the parking lot. Mr. Bruce saw a guy kick Mr. Wilson in the face. He could hear the kick and see the leg come down. He was unaware of who kicked Mr.

Wilson, although he has subsequently been told who the person was doing the kicking. The entire episode from the time that Mr. Wilson slapped Ms. Duchene to the point that Mr. Wilson was kicked around the side of the building lasted approximately 30 seconds. Mr. Wilson went limp after being kicked, and the man who kicked him immediately left. Mr. Rheault then checked Mr. Wilson. At that point, Mr. Bruce was approximately ten feet behind Mr. Rheault. A woman walked up to where Mr. Wilson was on his back and Mr. Rheault asked her if she would take care of Mr. Wilson. She responded yes. At that

point, Mr. Lake and Ms. Costa pulled up in Ms. Costa’s car and asked if he wanted to jump in with them. He knew that the truck being driven by Tim Fluery was full, so he got in the car. He had not seen Mr. Lake around the Tower during the altercation. Mr. Bruce did not arrive at the west corner of the Tower Motel until the time that Mr. Wilson was kicked by the unknown male. [ 42 ] Mr. Bruce confirmed that he did speak to his wife about the incident at the party at the Super 8. He told her that he punched a man once, and then someone else kicked the man. He believed that Ms.

Flood may have been in the vicinity while he was explaining the event to his wife. He described Ms. Flood as being pretty drunk, loud and dancing around. He denied making the statements that Ms. Flood attributed to him. In terms of his own condition, Mr. Bruce indicated that he had limited alcohol that night. He described himself as not being intoxicated, but being in a state where he would not drive an automobile. [ 43 ] Mr. Bruce also indicated that the whole altercation happened so quickly that anger played no

part in it. There was no time to get angry. [ 44 ] Mr. Bruce indicates that Mr. Lake did hand him some money at the Super 8. He barely remembers taking it, but knows that he did. He indicated that he saw Mr. Lake trying to give money to other people and that he kind of made a joke of it and snatched a $100.00 bill from Mr. Lake. He indicated that it was a poor decision, and that he did so having had too much to drink. He didn’t think anything of taking the money except that Mr.

Lake had made a bad impression with people at the party, and might have been trying to buy people’s friendship. [ 45 ] In cross-examination, Mr. Bruce indicated that he did not know that Mr. Lake went to the Tower Motel because he was looking for cocaine. He denied that he sucker punched Mr. Wilson, maintaining that Mr. Wilson must have seen him coming. He indicated that at no time did he know the source of the money that Gary Lake gave to him. THE LAW WITH RESPECT TO ASSAULT [ 46 ] The application of force to another person without that person’s consent constitutes an assault.

There are other provisions of the Criminal Code which are relevant to this case. Section 8(3) of the Criminal Code preserves the common law.

Section 27 of the Criminal Code provides that everyone is justified in using as much force as is reasonably necessary to prevent the commission of certain offences.

Section 30 of the Criminal Code provides that everyone who witnesses the breach of the peace is justified in interfering to prevent the continuance or renewal of that breach, if they use no more force than is reasonably necessary.

Section 37 of the Criminal Code provides that everyone is justified in using force to defend himself or anyone under their protection from assault, if they use no more force than is necessary to prevent the assault or a repetition of it. That provision has been interpreted to support the right of a person to use force to rescue even a stranger from attack. The common law also provides a right to use reasonable use to defend oneself or another person from assault. CREDIBILITY ISSUES [ 47 ] There can be no specific formula involved in the assessment of credibility. The Court is required to consider many factors.

Some of those factors include the internal consistency of the evidence, its consistency with other evidence, the person’s ability to observe and then recall the events, and any motivation to lie or interest in the results of the proceeding. [ 48 ] In a case such as this which involves a fight outside of a bar, there are often different, sometimes dramatically different versions of the events which are heard by courts. The Court has to sift through all of the evidence to determine which portions, if any, of the evidence the Court accepts.

I will comment briefly on the credibility issues surrounding some of the more important evidence. [ 49 ] Crystal McDonald was intoxicated at the time. That alone creates problems with her ability to observe and recall accurately the evidence. According to Mr. Fisher, the two of them were standing in a position which would have made it difficult for Ms. McDonald to actually observe the altercation. She admits lying to the police in her statement of March 21, 2009. In her statement of March 27, 2009, she seemed to be much less certain of her evidence than she was at trial.

It is very difficult to place any significant weight on the evidence of Ms. McDonald. [ 50 ] Fredrick Fisher was also intoxicated on the evening in question. According to where he says he was standing during the altercation, it would be difficult for him to see what happened. There are significant inconsistencies between his evidence and the evidence of Ms. McDonald. Ultimately, in cross-examination, he admitted a number of times that with respect to much of his evidence he was guessing and trying to piece things together.

He ultimately agreed that he really couldn’t say who did what and that to do so would be guessing. He agreed that in his initial statement to the police made March 21, 2009, he lied. His evidence is extremely frail and of very questionable probative value. [ 51 ] I have already commented on the evidence of Gary Lake. It deserves absolutely no credit and is rejected. With respect to the evidence of Ms. Costa, she has an obvious loyalty to Mr. Lake and therefore an interest in the outcome of this entire series of court cases. Her evidence is inconsistent with the evidence of Mr. Lake, Ms. McDonald and Mr. Fisher.

It has numerous inconsistencies internally throughout, including the various stages at which she gave statements and testified. It begins being fairly uncertain as to what happened, and becomes certain over time of a set of facts which incriminates all three accused, but which portrays Mr. Lake as not being involved in the assault. The inconsistencies and contradictions are far too numerous to mention.

Her evidence has been discussed, and refined and modified to a point where one must question whether it has any reliability whatsoever. [ 52 ] Tim Fluery gave evidence that, from some distance away at his truck, he saw the man we know to be Mr. Wilson hit a woman, at which point Mr. Bruce turned and punched Mr. Wilson once. Mr. Fluery is closely connected with all three accused. He was evasive on the stand and agrees that he omitted to mention the presence of Mr.

Haggar in his original statement to the police. [ 53 ] Dawn Flood was called simply for the purpose of giving evidence of the conversation that she indicated she had with

Matt Bruce at the Super 8 Motel. She had a significant amount to drink before that conversation took place. It is more likely than notthat she simply overhead a conversation between Mr. Bruce and his wife. Nothing was done to record her recollection of what she hearduntil one year after the fact. Almost a year later, she testified at trial, and seemed to be more reliant upon her statement to the police thanany independent recollection. That statement is suspect because of her condition when she says she took

part in the conversation, and thefact that her recollection was not reported to the police and recorded for approximately one year. Even at that point, she was uncertainwhether the statement was a verbatim account of what she told the police at that stage. Her evidence is not reliable. DECISION [54] The burden of proof beyond a reasonable doubt lies with the Crown. Tragically, Mr. Wilson died that evening. However, these accused are simply charged with common assault. This Court’s task is to determine whether the Crown has proven thatcharge. In the case of Mr. Bruce and Mr. Rheault, they both testified.

Accordingly, the Court must follow the analysis set out by theSupreme Court of Canada in the case of R. v. W.D. (SCC), [1991] 1 S.C.R. 742 In weighing the evidence, the courtmay accept or reject some or all of any witnesses testimony, after weighing all of the factors relevant to credibility. [55] In reviewing all of the evidence, at the close of the Crown’s case, the Court was in a position where the only findings thatthe court could make with any certainty were as follows. Mr. Wilson and Ms. Duchene were involved in a loud confrontation outside ofthe exit to the Tower Motel bar.

At some point in the altercation, Mr. Wilson slapped Ms. Duchene. When that occurred, Mr. Bruce, Mr.Rheault and Mr. Fluery had just exited the Tower Motel. Mr. Bruce reacted almost immediately by striking Mr. Wilson once in the facialarea. At some point, a group of people moved around the west corner of the Tower Motel. [56] As indicated, both Mr. Bruce and Mr. Rheault testified. [57] The W.D. analysis requires the following of the court: 1. If I believe the accused, I must find the accused not guilty; 2.

If I do not believe the accused, but the evidence of the accused leaves me with a reasonable doubt, I mustacquit; 3. Even if I am not left with a reasonable doubt on the basis of the evidence of the accused, I mustdetermine whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt that by thatevidence of the guilt of the accused. [58] Even prior to hearing the defence evidence, this Court had reasonable doubt as to whether any of the accused assaultedMr. Wilson around the western side of the Tower Motel. The evidence of Mr. Bruce and Mr.

Rheault is sufficiently credible to castfurther doubt on that assertion. With respect to what happened in front of the Tower Motel, at the conclusion of the Crown’s case, therewas some evidence to support the suggestion that Mr. Bruce struck Mr. Wilson at least once. The evidence of Mr Rheault and Mr. Bruceconfirms that Mr. Bruce struck Mr. Wilson. However, their evidence is credible enough to support their version of the events. The Courtfinds that Mr. Bruce struck Mr. Wilson with one blow to the head in front of the Tower Motel.

That constitutes the intentionalapplication of force without consent, and would normally constitute an assault. However, I find that Mr. Bruce would have beenjustified under

Section 37 of the Criminal Code in using reasonable force to defend Ms. Duchene from the repetition of an assault. InMr. Bruce’s mind, it would have been reasonable to believe that another assault could have occurred. Similarly, Mr. Bruce would havebeen entitled to use reasonable force to prevent a continuance of a breach of the peace pursuant to

Section 30 of the Criminal Code. There is no satisfactory believable evidence which could sustain an assault conviction against either Mr. Rheault or Mr. Fluery. Accordingly, all three accused are found not guilty of assault. [59] With respect to the possession of stolen property charge, the evidence of Gary Lake is completely rejected. I accept theevidence of Mr. Bruce that he foolishly accepted money from Gary Lake when he had too much to drink, and did not know the source ofthe money. Accordingly, he is to be found not guilty of the possession of stolen property charge. Released: July 15, 2011 Signed: Justice A. T. McKay