R v Peterson, 2022 ABKB 728

Court of King’s Bench of Alberta Citation: R v Peterson, 2022 ABKB 728 Date: 20221031 Docket: 211097951Q1 Registry: Hinton Between: His Majesty the King Crown - and - Brisen Allen Peterson Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice W.N. Renke _______________________________________________________ [ 1 ] Mr. Peterson was charged with the following three offences: • On or about the 21 st day of December, 2020, at or near Edson, Alberta, [he] did unlawfully wound, maim, or disfigure Christopher Paradis, thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code of Canada . • On or about the 21 st day of December, 2020, at or near Edson, Alberta, [he] did break and enter a certain place to wit a dwelling house and commit the indictable offence of robbery, contrary to section 348(1)(d)/344(1)(

b) of the Criminal Code of Canada .

• On or about the 21 st day of December, 2020, at or near Edson, Alberta, [he] did, without lawful authority, confine Christopher Paradis, contrary to section 279(2) of the Criminal Code of Canada . [ 2 ] The charges arose from an entirely chance encounter between two complete strangers at about 5:00 a.m. on December 21, 2020 in the parking lot of the Aries Motel in Edson, Alberta.

A machete was displayed, a purported citizen’s arrest occurred, and the complainant received serious injuries and was hospitalized for months. [ 3 ] I will address the following matters: • procedural issues • sources of evidence • the requirement that the Crown prove its case beyond a reasonable doubt • non-contentious facts preceding and following the crucial events • the stages of the crucial events • the charges against Mr.

Peterson and his defence of citizen’s arrest • the determination of what occurred during the crucial period • the availability of citizen’s arrest on those facts • whether the Crown has proved the charges against Mr. Peterson beyond a reasonable doubt. Table of Contents I. Procedural Background . 4 II. Sources of Evidence . 4 III. Proof Beyond a Reasonable Doubt 5 IV. Facts – Not Contentious . 7 A. General Facts . 7 1. The Aries Motel 7 2. Weather 7 3. Mr. Paradis . 7 4. Mr. Peterson . 7 B. Mr. Paradis’ Arrival at the Aries Motel 7 C. Mr. Peterson’s Attendance at the Aries Motel 8 D. Ms. Austin . 9 E.

Constables Norman and Heavener, the Crime Scene, and the Arrest 9 F. Mr. Peterson at the Detachment 12 G. Search of Unit 122 . 13 H. No Criminal Charges . 13 I. Mr. Paradis’ Injuries . 13 1. Edson Emergency Department 13 2. Transfer to Edmonton . 14 3. Facial and Brain Injuries . 14 V. Events Involving Mr. Paradis and Mr. Peterson . 15 A. First Stage . 15 B. Stage Two . 17 VI. Charges and Defence . 18

A. Charges . 18 1. Established Elements . 18 2. Aggravated Assault 18 3. Unlawful Confinement 19 4. Break and Enter and With Intent to Commit an Indictable Offence . 19 B. Unavailable Defences . 20 1. Self-Defence . 20 2. Member of the RCMP . 22 C. Citizen’s Arrest 22 VII. What Happened in the Room .. 23 A. Mr. Peterson’s Testimony . 23 1. Appreciation of the Circumstances . 23 2. In the Room .. 24 B. Mr. Paradis’ Statement 25 1. In the Room .. 26 2. Hearsay . 26 C. What Happened in the Room? . 32 VIII. Citizen’s Arrest 32 A. No Offence or Reasonable Grounds for Belief an Offence Occurred . 32 B.

Finds Committing an Indictable Offence . 34 C. Arrest in a Dwelling House . 35 D. Excessive Force . 37 IX. Charges . 38 A. Aggravated Assault 38 B. Unlawful Confinement 39 C. Break and Enter with Intent to Commit an Indictable Offence . 39 X. Determinations . 40

Schedule A .. 42

Schedule B .. 51

Schedule C .. 54 I. Procedural Background [ 4 ] Following pre-trial motions and jury selection, Mr. Peterson elected to proceed with trial by judge alone. [ 5 ] Mr. Peterson was self-represented. Justice Richardson had ordered that amicus curiae be appointed. Ms. Kaj Jensen was appointed as amicus . [ 6 ] As regards count 2, prior to the close of proceedings, Crown Counsel stated that the Crown would not be proceeding under s. 348(1)(

b) and (d) (breaking and entering a dwelling house and committing robbery) but under the included offence of s. 348(1)(a), which concerns breaking and entering a place with intent to commit an indictable offence therein. Section 348(1)(

d) remains engaged. Recourse to s. 348(1)(

a) as an included offence is statutorily recognized in s. 662(6) of the Criminal Code : 662(6) Where a count charges an offence under ... 348(1)(

b) and the evidence does not prove that offence but does prove an offence

under ... 348(1)(a), the accused may be convicted of an offence under that latter paragraph. See R v Liang, 2009 ABCA 2 at para 18. II. Sources of Evidence [7] The trial evidence was drawn from the following sources. [8] Mr. Paradis died before trial for reasons unrelated to this trial. In a pre-trial application, I admitted a redacted version of astatement he provided to RCMP Cst. Colby Torgunrud on February 17, 2021. My decision is attached as

Schedule A. Admissibleelements of the voluntariness and arbitrary detention pre-trial voir dires were also admitted at trial. Those voir dire decisions areattached as Schedules B and C. [9] The Crown witnesses were Lisa Austin, the Aries Motel live-in manager, RCMP members Cst. Chesney Norman, Cst.Christopher Heavener, Sgt. Chadwick Benko, Cpl. Jody Mattinson, and Cpl. Carling Grasdal, and Dr. Rajesh Sood, an Edson emergencyroom physician. I admitted four medical records prepared by medical professionals relating to Mr.

Paradis’ medical condition throughthe business records exception to the hearsay rule. [10] The Aries Motel had five high-definition continuously-recording surveillance cameras. The recordings were remarkably clear:see R v Nikolovski, (SCC), [1996] 3 SCR 1197, Cory J at paras 22, 29, 34. The surveillance video recordings for thematerial times were seized by the RCMP and admitted as an exhibit. The surveillance footage had no audio component. [11] Mr. Peterson testified. Some documents he had prepared were made an exhibit. III. Proof Beyond a Reasonable Doubt [12] Mr.

Peterson may be convicted of an offence only if, on all the evidence in the case, there is no reasonable doubt orreasonable possibility that he is innocent of that offence: R v Villaroman, 2016 SCC 33, Cromwell J at para 25; Woolmington v DPP,[1935] AC 462 (HL) at 481-482. That right is constitutionally confirmed by s. 11(

d) of the Charter: “Any person charged with anoffence has the right ... to be presumed innocent until proven guilty according to law ....” [13] The requirement that the Crown prove its case “beyond a reasonable doubt” does not require proof beyond “any” doubt. It isnot a standard of absolute certainty.

But proof beyond a reasonable doubt excludes or requires proof beyond all “reasonable” doubts though, than to proof on a balance of probabilities: R v Starr, 2000 SCC 40, Iacobucci J at para 242. [14] At para 47 of R v Ryon, 2019 ABCA 36, Justice Martin confirmed that whether evidence exculpating an accused raises areasonable doubt must be assessed in the context of the evidence as a whole. See also R v Morin, (SCC), [1988] 2 SCR345, Sopinka J at 361 - 362 and R v Thomas, 2012 ONSC 6653 at para 24. [15] The Crown is obligated to prove each element of an offence beyond a reasonable doubt.

Further, the reasonable doubtstandard applies to “vital issues.” See R v Randall, 2020 ABCA 52 at para 62. ofthe testimony of Crown witnesses, undermining the Crown case. A reasonable doubt may arise from the accused’s testimony, if thattestimony is not wholly rejected. Of course, a reasonable doubt may emerge from other evidential sources in the trial as well. And ofcourse, an accused may be believed. His or her evidence may be accepted not only as raising a reasonable doubt but as being true orlikely true. [17] We reach the

summary of the conclusions a trier of fact might make described by Justice Cory in W(

D) at 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. See Thomas at para 24; R v Hogg, 2013 PECA 11, affd 2014 SCC 18, McQuaid J at para 133 (PECA). [18] In Ryon and R v Achuil, 2019 ABCA 299 at para 18 (respecting (ii) below), Justice Martin helpfully recast the elements ofthe W(

D) assessment of the totality of trial evidence under the reasonable doubt standard (with some qualifications omitted): [51] The charge [or a judge’s self-instruction] should impart the following information: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown …. (ii) In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or

even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit .... (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence), they may not simply assume theCrown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether thatevidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or ... otherexculpatory evidence) cannot be taken as proof of the accused’s guilt. [19] When faced with competing narratives, the trier of fact must not simply prefer one over the other: R v CLY, 2008 SCC 2,paras 6-8.

The verdict should not be based on a choice between the accused’s evidence and the Crown’s evidence, but on whether, basedon the whole of the evidence, the trier of fact is left with a reasonable doubt as to the accused’s guilt. [20] However, a reasonable doubt does not necessarily emerge just because an accused has testified to a narrative that conflictswith the narrative of a key Crown witness, such as a complainant.

An accused does not raise a reasonable doubt just because he testifies:The Queen v Proudlock, (SCC), [1979] 1 SCR 525, Pigeon J at 551; R v JE, 2012 ONSC 3373, Code J at para 20. “Itwould be a perverse misinterpretation of W(

D) to suggest that the mere fact of the accused taking the stand, or otherwise leading defenceevidence, is in itself sufficient to raise a reasonable doubt:” R v Garford, 2021 ABCA 338 at para 32. [21] An accused’s evidence may be rejected and therefore raise no reasonable doubt because the trier of fact has acceptedcompeting evidence beyond a reasonable doubt, on a considered and reasoned basis: R v JJRD, 215 CCC (3d) 252,Doherty JA at para 53 R v CLS, 2021 ABCA 147 at para 46; R v BJJ, 2018 ABCA 196 at para 28; R v Vuradin, 2013 SCC38, Karakatsanis J at paras 13 and 19. [22] I have kept in mind that all, some, or none of the evidence of any witness may be accepted: R v JHS, 2008 SCC 30, Binnie Jat para 10.

IV. Facts – Not Contentious [23] The facts preceding and following the critical events were not contentious in my view. I find the following facts to beestablished. In large part, these facts were manifest on the surveillance video. A. General Facts [24] I’ll begin with some general facts about the motel, the weather, Mr. Peterson, and Mr. Paradis. 1. The Aries Motel [25] To provide some orientation to the location of the events, the Aries Motel is in a “U” or “horseshoe” shape. In the middle of the motel is a large parking lot facing North on 4th Avenue, Highway 16 Westbound through Edson.

The terminus of each leg of theunits is Highway 16. The units are located around the perimeter of the parking lot, numbered 101 to 123. The motel has only one level,except for the manager’s suite which is above unit 102. The manager’s suite is at the West terminus of the units. The units extend southfrom the manager’s suite, then east along the back of the parking lot, then north to the last unit. The unit numbers begin with unit 101 atthe West terminus, with unit 123 being at the East terminus. Unit 122 was the second last unit on the East arm of the motel. The door ofeach unit opens onto the parking lot.

Each unit has a window that that faces the parking lot. 2. Weather [26] The weather late on December 20 and in the morning hours of December 21, 2020 was clear. There was snow on the groundbut no snowfall during the material hours. 3. Mr. Paradis [27] Ms. Austin estimated Mr. Paradis to be about 5’ 4” – 5’ 5” tall. [28] Mr. Paradis appeared in the surveillance videos. There was no issue as to his identification in those videos. 4. Mr. Peterson [29] Cst. Heavener stated (and this was confirmed by post-arrest photographs) that Mr.

Peterson was tall, between 6’ 3” and 6’ 6.”The photographs also confirmed that the clothing worn by Mr. Peterson was the clothing worn by the tall individual depicted on thesurveillance video. B. Mr. Paradis’ Arrival at the Aries Motel [30] In the evening of December 20, 2020, at about 10:40 p.m., Mr. Paradis, who was driving a dark-coloured pick-up truck (theSilverado), arrived at the Aries Motel. After discussions with the on-site motel manager, Lisa Austin, he rented a room for night, unit

122. He did not rent the room under his own name. He relied on a third party’s identification and identified himself as that third party. When he checked in, as required by Covid protocols, he was wearing a medical-style mask. He did not remove or lower the mask when communicating with Ms. Austin. [ 31 ] Mr. Paradis paid for the room with cash. Mr. Paradis took out a “big wad” of cash from his pocket. Ms. Austin estimated the thickness of the quantity of cash to be an inch to an inch and a half. She saw currency in $20, $50, and $100 denominations. [ 32 ] Mr.

Paradis backed the Silverado into the parking spot in front of the unit. For most of the night, his was the only vehicle parked at the motel. [ 33 ] After parking and removing his luggage, he inquired with Ms. Austin respecting laundry facilities and restaurant menus. [ 34 ] Mr. Paradis was visited twice by unknown third parties before the crucial events. At about 12:49 a.m., a Dodge Caravan pulled up. The occupants went into unit 122 and emerged at about 3:14 a.m., over two hours later. At 4:00 a.m., a Ford F150 pick-up truck pulled up. The passenger got out of the truck and went into unit 122.

The individual left on foot about 40 minutes later, at 4:40 a.m. The licence plates of the vehicles were not visible and no investigations were conducted respecting their ownership. There was no additional evidence shedding light on the nature of the visits. [ 35 ] At 4:47 a.m., Mr. Paradis came out of his room, opened the driver’s side door on the Silverado, closed it, and returned to his room. C. Mr. Peterson’s Attendance at the Aries Motel [ 36 ] The following facts are derived from Mr. Peterson’s testimony. [ 37 ] Mr. Peterson was living at the Pine Shadow trailer park, some 8 km east of Edson. [ 38 ] Mr.

Peterson planned to visit the RCMP Detachment on December 21. He was to be at the RCMP Detachment at 7:00 a.m. He testified that he had talked on the phone with “another officer,” and the RCMP were expecting him to show up then. [ 39 ] His car was in the tire shop. He had to walk to Edson. He hadn’t been sure how long the walk would take. He’d left early to give himself enough time. [ 40 ] Because he arrived in Edson well before 7:00 a.m., he decided to visit his friend Tyler. [ 41 ] Mr. Peterson had been friends with Tyler for some years. Mr.

Peterson had been to Tyler’s home, Tyler had been to his home, and Tyler’s family knew Mr. Peterson’s family. Mr. Peterson and Tyler had fallen out of touch but had met a few days earlier. Tyler said to stop by anytime. Tyler is Lisa Austin’s son. [ 42 ] Tyler was living in room 112 at the Aries Motel. Ms. Austin confirmed this but said that Tyler was not in Edson on December 21 and did not return to Edson until after Boxing Day. Mr. Peterson didn’t know that Tyler was away. [ 43 ] Mr. Peterson acknowledged that at 5 a.m. most people would be sleeping.

He had known Tyler for 20 years, though, and he said it would not have been a problem to show up. It would not be unusual. [ 44 ] Mr. Peterson got to the Aries Motel but couldn’t remember Tyler’s room number. He was looking at door numbers, hoping to jog his memory, but he couldn’t remember. He was debating leaving the motel when the events occurred. [ 45 ] The incident involving Mr. Paradis and Mr. Peterson commenced at about 4:51 a.m and continued until nearly 6:00 a.m. I will return to this period of time below. [ 46 ] At all material times Mr. Peterson was sober. D. Ms. Austin [ 47 ] Ms.

Austin went to sleep in her suite at the motel at around 2:30 a.m. [ 48 ] She did not see any visitors attend at unit 122. [ 49 ] At 5:06 a.m, Ms. Austin received a call from the RCMP. She referred to this as a call from 911. She was asked whether everything was ok. She said yes. She was told there had been a report of “two guys fighting in the parking lot.” She said that the RCMP should be sent. [ 50 ] While waiting for the RCMP to show up, she got dressed and went downstairs and across the parking lot to unit 122.

She could see through an opening in the curtains “someone punching someone or something.” She heard someone saying “help, help.” This was at about 5:12 a.m. [ 51 ] She went back to her office. [ 52 ] Ms. Austin called the RCMP after the RCMP had called her. Cst. Norman spoke to her. She is seen on video looking out her office window on the phone with the police at about 5:19-5:20 a.m. [ 53 ] At 5:19 a.m., unit 122’s door opened. Mr. Paradis came out. Mr. Peterson pulled him back in. Ms. Austin testified that she

saw a “tall guy” push a “shorter guy” into the room. She didn’t know who the tall guy was. The taller guy was using the smaller guy “as a rag doll.” [ 54 ] The “shorter guy” was the guy who checked in, Mr. Paradis. [ 55 ] In his cross-examination, Mr. Peterson confirmed that he was the taller guy and Mr. Paradis was the shorter guy. [ 56 ] The police arrived at 5:50 a.m. [ 57 ] When the police arrived, Ms.

Austin told them what was happening and where it was happening. [ 58 ] She told the members that the motel had surveillance cameras and gave them the guest registration form for unit 122. [ 59 ] The RCMP seized the surveillance footage. E. Constables Norman and Heavener, the Crime Scene, and the Arrest [ 60 ] Cst. Norman and Cst. Heavener were on call in the morning of December 21. At about 5:10 a.m., they were contacted by Dispatch about a possible dispute at the Aries Motel. Cst. Heavener reported that Dispatch advised of a fight possibly involving a knife. [ 61 ] Cst. Norman and Cst.

Heavener met at the Detachment. [ 62 ] They arrived at the Aries Motel at 5:50 a.m. [ 63 ] A single pick-up was parked there. It was quiet. Nothing indicated an active fight. [ 64 ] The pick-up, the Silverado, was backed into the parking stall in front of unit 122. The driver’s side front tire was flat. The Silverado had an Alberta licence plate. The licence plate was sitting on a rear portion of the truck. Cst. Heavener determined that the licence plate did not belong to a vehicle in the system in Alberta. It was not associated to the Silverado. [ 65 ] Cst. Heavener observed the Silverado’s VIN through a window.

Upon making inquiries, Cst. Heavener learned that the Silverado was stolen from Calgary. He did not acquire information about the owner of the vehicle. [ 66 ] Cst. Heavener said that Cst. Norman told him that there was blood in front of unit 122. [ 67 ] Cst. Heavener went to the motel office to get information from Ms. Austin. [ 68 ] Cst. Norman maintained surveillance on unit 122 and the Silverado. [ 69 ] As Cst. Norman was waiting, the door to unit 122 opened and a tall individual came out, closing the door behind him. He approached Cst. Norman. Cst. Norman asked him to identify himself.

He produced an Alberta identity card. The individual was Mr. Peterson. Cst. Norman and Cst. Heavener were acquainted with Mr. Peterson. [ 70 ] Mr. Peterson said “I just noticed you guys out there, I just came out to talk.” [ 71 ] Cst. Norman observed that Mr. Peterson’s hands and shirt sleeves were covered in blood. Cst. Norman asked Mr. Peterson why there was blood on his arms and clothes. [ 72 ] Mr. Peterson said to Cst. Norman words to the effect that the man in the room had chased him with a machete and that Mr. Peterson had put him under a citizen’s arrest.

I found that these statements were admissible in a pre-trial voir dire . [ 73 ] Cst. Heavener approached. Cst. Heavener directed Mr. Peterson to sit on a lawn chair in front of an adjacent unit. [ 74 ] As Cst. Heavener drew closer to the room, he could hear someone call for help. [ 75 ] Cst. Heavener could observe what appeared to be dried blood on the concrete by the door, on the door, and on the door frame. The door frame was broken. The door had been forced open. [ 76 ] Cst. Heavener pushed the door open and entered the room. [ 77 ] He said that blood was everywhere, on the floor and the walls.

He saw a broken coffee pot on the floor next to a dresser. Pieces of the door frame were on a bed. [ 78 ] Between the two beds in the room lay a male in a fetal position. [ 79 ] Cst. Heavener said that his face was beaten to a pulp. His eyes were swollen shut. His nose appeared to be broken. [ 80 ] Cst. Heavener told Cst. Norman to arrest Mr. Peterson for aggravated assault. (In the voluntariness voir dire , Cst. Norman had testified that he had first been told to arrest Mr. Peterson for attempted murder and then for aggravated assault. At trial, Cst. Norman said that he had been confused.

He had reviewed his notes and the sequence of charges for arrest was as described by Cst. Heavener. I accept that Cst. Norman had been confused in the voir dire and had mixed up the order of charges. The circumstances had been dynamic, the charges had evolved, and the error was of no legal significance in all the circumstances. I did not view the error as undermining Cst. Norman’s credibility. Moreover, the sequence of charges described by Cst. Heavener made sense given the development of Cst. Heavener’s observations of Mr. Paradis in unit 122.)

[ 81 ] Cst. Heavener observed that the male’s hands and feet were tied together with rope or some kind of shoelace. His hands were secured behind his back and his arms were bound to his feet. He was, to use Cst. Heavener’s expression, hogtied. [ 82 ] The male then went “non-responsive.” He ceased breathing. Cst. Heavener could not hear breathing and saw no rise or fall of his chest. The male lost consciousness. [ 83 ] Cst. Heavener told Cst. Norman to arrest Mr. Peterson for attempted murder. [ 84 ] Cst. Heavener called Dispatch and advised that an ambulance was needed right away. [ 85 ] Cst.

Norman had handcuffed Mr. Peterson when first directed to arrest him. As Cst. Norman was doing so, Mr. Peterson had brought out a plastic bag. Cst. Norman batted it out of Mr. Peterson’s hand and completed handcuffing him. [ 86 ] In his testimony, Mr. Peterson referred to two bags that Cst. Norman knocked to the ground. One was the plastic bag with several bags inside it, suspected of containing controlled substances. The other bag was one Mr. Peterson had in his pocket from before he went to the Aries Motel, containing some jewelry. The second bag had nothing to do with Mr. Paradis. [ 87 ] Cst. Norman took Mr.

Peterson to his police vehicle, conducted a preliminary search, and gave him his Charter rights. [ 88 ] Cst. Norman went to the room. He testified that it was “like a bomb went off.” There was blood on the floor and on multiple walls. A coffee pot was shattered on the floor. [ 89 ] Cst. Norman observed the male between the two beds “hogtied” with shoelaces. [ 90 ] Cst. Heavener and Cst. Norman cut the ties that bound the man. [ 91 ] Cst. Norman tried to shake the man. The man threw up black and bloody vomit. [ 92 ] After EMS arrived and attended to the man, Cst.

Norman got into the ambulance with the man and went to hospital with him, remaining with him until hospital staff took over. [ 93 ] While at the hospital, Cst. Norman attempted to identify the man, initially unsuccessfully. Some hours later, the man was identified as Mr. Paradis. [ 94 ] Cst. Heavener maintained custody of Mr. Peterson at the motel. Cst. Heavener moved Mr. Peterson to Cst. Heavener’s vehicle. He conducted a secondary search and re- Chartered Mr. Peterson for attempted murder. [ 95 ] Mr. Peterson was transported to the Edson RCMP Detachment and booked in. [ 96 ] When Cst.

Norman left the hospital, he returned to the Aries Motel. He took over scene security and served as exhibit handler. [ 97 ] Cst. Norman identified photographs of various seized items, including the bag that he had batted from Mr. Peterson’s hand. This bag had been later seized. It was a larger ziplock bag. Inside were some smaller bags. The contents of the bags were not sent for analysis. In the opinion of Cpl. Jody Mattinson, based on his observations of the bags and his experience in drug investigations, one of the bags contained methamphetamine. [ 98 ] $1500 cash was seized from Mr.

Peterson’s person – eight $100 bills, eight $50 bills, fourteen $20 bills, one ten dollar bill, and two $5 dollar bills. Another $50 bill was found in unit 122 later, tucked up between a baseboard and a wall. [ 99 ] Also seized from Mr. Peterson was a black folding knife. Cst. Norman believed he had seized this from Mr. Peterson. [ 100 ] Some envelopes with third-parties’ names and addresses were located in Mr. Peterson’s pocket. These envelopes did not originate from the motel room. The envelopes had been in Mr. Peterson’s possession. He had been asked to post the mail (marked “return to sender”) by a friend. F.

Mr. Peterson at the Detachment [ 101 ] When Mr. Peterson was booked in at the Detachment, Cst. Heavener observed that he had cuts and scrapes on both of his hands. Cst. Heavener testified that his hands and fingers were swollen. There was blood on the arms of the hoodie he had been wearing. [ 102 ] Cst. Heavener was advised that the plastic baggie apparently containing controlled drugs had been located and the amount of drugs suggested possession for the purpose of trafficking. Cst. Heavener arrested Mr. Peterson for possession for the purpose of trafficking and re- Chartered him. [ 103 ] At this time, Mr.

Peterson was in the phone room. He told Cst. Heavener that he did not want to talk to a lawyer. Cst. Heavener explained Mr. Peterson’s charges to him and explained how he could contact a lawyer. Mr. Peterson was left in the phone room to contact a lawyer for about 45 minutes. Cst. Heavener did not believe that Mr. Peterson contacted a lawyer. [ 104 ] Cst. Heavener told Cpl. Carling Grasdal that Mr. Peterson was not making a call to a lawyer. Cpl. Grasdal went to the phone room, opened the door, and asked him if he knew what he was under arrest for, if he knew the seriousness of his charges.

She testified that he didn’t appear to understand. She told him he was under arrest for attempted murder and possession for the purpose of trafficking and the charges were serious. She told him he needed a lawyer. She explained to him how to dial out to talk to a lawyer. [ 105 ] Cpl. Jody Mattinson and Cst. Aldrin Merlin also assisted Mr. Peterson with talking to a lawyer. Cpl. Mattinson, who was

monitoring Cst. Merlin’s efforts, testified that Cst. Merlin was struggling to get Mr. Peterson to use the phone. Mr. Peterson was in the phone room, just staring at the wall, not calling. [ 106 ] Cpl. Mattinson testified that Mr. Peterson “seemed spacey.” He was making no eye contact. He stared into space. He did not attempt to make contact with a lawyer but sat facing the wall. Cpl. Mattinson offered to dial a lawyer for Mr. Peterson. He told Mr. Peterson that he needed to talk to a lawyer. Cpl. Mattinson said that Mr. Peterson did not grasp the gravity of the circumstances he was in. Cpl.

Grasdal also testified that Mr. Peterson did not appear to understand the seriousness of the circumstances he was facing. She testified that he “looked at us blankly.” [ 107 ] The officers did not interview Mr. Peterson. Cpl. Mattinson testified that “we didn’t want to until he talked to a lawyer. We wanted to make sure he understood what making a statement would entail.” Cpl. Mattinson believed that Mr. Peterson needed to get information from a lawyer. [ 108 ] Cst. Heavener confirmed that during the period of arrest, Mr. Peterson was very calm.

During all his interactions with police, he was very respectful, very compliant. There was no instance of him being violent or agitated. G. Search of Unit 122 [ 109 ] A search warrant was obtained authorizing the search of unit 122 and the Silverado. The unit and Silverado were searched on December 22. [ 110 ] Cst. Norman reviewed some photographs taken by Sgt. Benko with Forensic Identification Services, who had attended at the crime scene. Cst. Norman identified photographs of, for example, a smashed coffee pot and a piece of what appeared to be shoelace that had bound Mr.

Paradis located in unit 122. [ 111 ] Mr. Paradis had checked into the motel using the name and driver’s licence of a third party. The driver’s licence was located in unit 122. The owner was contacted and he confirmed that his wallet had been lost or stolen in October 2020. [ 112 ] Also located in unit 122 was a bag containing two hockey masks, referred to by Cpl. Grasdal as being “Halloween” style masks (I interpreted that as a reference to the series of movies). Cpl. Grasdal made inquiries to determine whether any offences had been committed involving masks of this description.

She “didn’t find anything.” [ 113 ] A small plastic package that appeared to have marijuana on it or in it was located in the room. [ 114 ] A bottle of Jagermeister and some cans of “Hey Y’all,” which I understand to be an alcoholic beverage, were in the room. H. No Criminal Charges [ 115 ] No charges were laid against Mr. Paradis in connection with the stolen truck or the possession and use of the false identification, or in relation to any drug offences or possession of property obtained through commission of any offence. I. Mr. Paradis’ Injuries 1. Edson Emergency Department [ 116 ] Mr.

Paradis was taken by ambulance to the Edson Healthcare Centre. He was seen by Dr. Rajesh Kumar Sood, the emergency doctor on duty, at 6:40 a.m. [ 117 ] Mr. Paradis was breathing on his own, spontaneously (not gasping). Mr. Paradis was not actively opening his eyes. Dr. Sood rated him at 8 on the Glasgow Coma Scale. Dr. Sood noted that Mr. Paradis had significant swelling to his scalp. He could not feel any fracture or loose fragments at the back of Mr. Paradis’ head. Mr. Paradis’ left eye had significant swelling. The upper eyelid was lacerated. [ 118 ] Dr. Sood observed that Mr. Paradis had facial trauma.

His upper lip was lacerated, but his teeth were intact. Dr. Sood could not feel anything that suggested fracture or displacement of bones. Mr. Paradis’ facial injuries, however, were difficult to assess, particularly without radiology. Radiology was not available at the Health Centre. Further, Mr. Paradis was in pain and was not cooperative. Dr. Sood could not rule out brain injury or fractures. [ 119 ] CT scans and MRIs were not available in Edson. [ 120 ] Dr. Sood noted that Mr. Paradis displayed “pinpoint pupils.” His pupils were not reactive to light. This condition is a symptom of opioid overdose. Dr.

Sood administered Narcan to Mr. Paradis twice. Narcan is an opioid antagonist. After the second dose, there was a dramatic improvement. Mr. Paradis’ Glasgow Coma Scale rating improved to 14. [ 121 ] Mr. Peterson observed that the vomiting that occurred earlier could have been caused by a drug overdose. [ 122 ] Blood work, a standard trauma panel, was performed for Mr. Paradis. He had no alcohol in his system. The standard panel did not screen for drugs. Drug screening could not be done in Edson. [ 123 ] I confess to some reservations about whether Mr.

Paradis’ pinpoint pupils were caused by opioid ingestion alone, without any contribution by brain injury. However, the only evidence on this point was Dr. Sood’s. I accept that Mr. Paradis had consumed opioids of some unknown type prior to the critical events.

[ 124 ] Mr. Peterson emphatically confirmed that he did not provide any opioids or any pills or other substances to Mr. Paradis at any time. I accept Mr. Peterson’s testimony on this point. [ 125 ] Dr. Sood testified that Mr. Paradis’ pelvis was stable and none of his limbs showed signs of injury. The Crown correctly observed that Mr. Paradis displayed no injuries below his chin. 2. Transfer to Edmonton [ 126 ] Mr. Paradis was transferred to the Royal Alexandra Hospital in Edmonton.

He remained there until February 9, 2021 when he was transferred to the Glenrose Rehabilitation Hospital. [ 127 ] While at the Royal Alex, he exhibited impulsive behaviours and paranoia and had unpredictable and dangerous outbursts against staff. He attempted to leave the hospital. He lacked insight into his brain injury. His thinking was disorganized. He was agitated and unsteady on his feet. He had several seizures. He had to be intermittently restrained. [ 128 ] In addition to his injuries, he was contending with smoking, alcohol, and methamphetamine use disorders and withdrawal. [ 129 ] Mr.

Peterson observed that Mr. Paradis’ substance abuse disorders were relevant to his behaviour while in hospital. I accept that to some degree, Mr. Paradis’ behavioral anomalies were linked to his substance abuse disorders and withdrawal. The substance abuse disorders, though, do not explain the physical injuries sustained by Mr. Paradis. [ 130 ] Mr. Peterson referred to Mr. Paradis having been treated for schizophrenia. There may have been an entry in disclosure relevant to this point. This matter, though, was not in evidence and I make no finding relating to this issue. 3.

Facial and Brain Injuries [ 131 ] According to a Glenrose Brain Injury Rehabilitation consult dated December 29, 2020, Mr. Paradis suffered the following facial injuries: • right-sided comminuted orbital floor, medial orbital wall, and lateral orbital wall fractures • right comminuted zygomatic complex fracture • minimally displaced nasal bone and nasal septal fractures.

His neurological diagnoses were • holohemispheric left subdural hematoma • small left superior frontal lobe subarachnoid hemorrhage • right frontal subdural hematoma • left parietal convexity subarachnoid hemorrhage • moderate traumatic brain injury • traumatic brain injury delirium • benign paroxysmal positional vertigo. V. Events Involving Mr. Paradis and Mr. Peterson [ 132 ] The events giving rise to the charges against Mr. Peterson commenced at about 4:51 a.m. and ended at about 5:55 a.m., when Cst. Heavener and Cst. Norman attended at the motel, found Mr. Paradis, and arrested Mr.

Peterson. [ 133 ] These events have two main stages, the first from about 4:51 to 5:09 a.m., the second from 5:09 a.m. to 5:55 a.m. A. First Stage [ 134 ] The first stage incidents were depicted, for the most part, on surveillance video. The video, it must be recalled, did not have sound. [ 135 ] Mr. Peterson approached the motel on foot at 4:51 a.m. [ 136 ] He turned into the motel, commencing on the East side, at the unit beside unit 122. He walked South in front of the units. He turned and looked back but continued South then West then North in front of the units.

He stopped part way down the West arm of the units, near the manager’s office. He faced in the direction of unit 122. He stood there watching. [ 137 ] At about 4:53 a.m., Mr. Paradis came out of his unit and put a duffle bag into the Silverado. [ 138 ] Mr. Peterson came towards Mr. Paradis and stood toward the middle of the parking lot. This was the first time Mr. Peterson had

seen Mr. Paradis in his life. In my opinion, Mr. Paradis exhibited startle-behaviour when he saw Mr. Peterson. He stiffened. [ 139 ] At about 4:54 a.m., Mr. Paradis went back into his unit. [ 140 ] Mr. Peterson was standing in the parking lot facing unit 122 and the Silverado. [ 141 ] The video showed that Mr. Paradis came back out. Mr. Peterson began to approach Mr. Paradis. [ 142 ] Mr. Paradis had an object in his right hand that extended for about 2 feet. At one point, Mr. Paradis gestured with the object, exposing what appeared to have been a flat surface.

The object was not a thin relatively short object like a licence plate. It was not a uniformly thin object like a tire iron. What was depicted in the video supported the inference of being a long edged weapon. It could have been a machete. Mr. Peterson clearly and consistently identified the object as a machete. However, no machete or object similar to a machete was later seized by the police from unit 122. The discrepancy between the object visible in the video and the lack of any similar seized object was not resolved on the evidence. [ 143 ] Mr. Paradis did not point the machete at Mr. Peterson. Mr.

Paradis was holding it low in his right hand, with his right hand at his right hip. The object stuck out low (diagonally) to Mr. Paradis’ right. [ 144 ] Mr. Peterson testified that Mr. Paradis had called him over and said Hello. Mr. Peterson described this as a normal human interaction. He said that Mr. Paradis then changed his attitude and became aggressive. Mr. Peterson testified that Mr. Paradis threatened his life. Mr. Peterson said that Mr. Paradis threatened his life with a gun. Mr. Peterson said that Mr. Paradis made him believe he had a gun. Mr. Peterson felt that his life was at risk. Mr.

Peterson said that after Mr. Paradis called him over, Mr. Peterson asked what was going on there, what’s the issue between us. Mr. Paradis responded by pulling out the machete. [ 145 ] To return to the video: Mr. Peterson continued to approach. Mr. Peterson was wearing a hoodie. He put his hand in the front pocket. He was then seen to have a short object in his right hand. Mr. Peterson had been dressed in jeans and a dark hoodie with Carhartt lettering on the sleeves, and a toque. Mr. Peterson was about a foot taller than Mr. Paradis and more heavily built. He denied that he would have appeared threatening to Mr.

Paradis. [ 146 ] Mr. Paradis stepped back behind the Silverado. [ 147 ] Mr. Peterson whipped his right hand toward the front driver’s side of the Silverado (the cab was facing forward into the parking lot). He then moved back and away to his left, to the North, moving out of the parking lot. Mr. Paradis went back into unit 122, closing the door. It was 4:55 a.m. [ 148 ] Mr. Peterson confirmed that he’d been in possession of a short knife. It was later seized from him. He admitted stabbing the truck tire, causing it to go flat. He said he didn’t want Mr. Paradis going anywhere. In cross-examination, Mr.

Peterson said “I was scared for my safety and well-being.” He did not want Mr. Paradis to be able to get away with it. Mr. Peterson acknowledged having the knife in his possession but stated that he didn’t use it as a weapon, only in an immediate reaction, as a form of defence. He said that a knife isn’t a weapon. It is a tool. His knife didn’t threaten Mr. Paradis. It immobilized him. He said that stabbing the tire was “my way of defence” and Mr. Paradis had a much larger weapon. [ 149 ] Mr. Peterson acknowledged that Mr. Paradis had gone back into his motel room while he went across the street. [ 150 ] Mr.

Peterson testified that when he was across the street, he contacted an officer. He said he confirmed with an officer that the police were on their way. He did not remember who he talked to. The communication was by way of telecommunication, using electricity from the human body. This allowed him to communicate with the police without using a telephone. He said it was common for him to communicate in this way with officers. In cross-examination Mr. Peterson said that there were officers listening to him right now. “I talk to them every day.” [ 151 ] Mr.

Peterson said that “they authorized me to arrest him.” In cross-examination he said he got a direct order to go back and arrest Mr. Paradis. He went back across the street to do so. [ 152 ] Mr. Peterson intended to arrest Mr. Paradis for the offence of possession of a weapon for a purpose dangerous to the public peace under s. 88(1) of the Criminal Code . Mr. Peterson said that Mr. Paradis had performed an illegal activity and was a danger to the public. [ 153 ] Mr. Peterson did not consider his own possession and use of a knife to have engaged this offence. He did not use his knife as a weapon.

He only pulled it out when Mr. Paradis wielded his machete against him. [ 154 ] Mr. Peterson returned to the motel. He walked toward unit 122, then back towards the street. He then went onto the parking lot, looking at unit 122. [ 155 ] At about 5:00 a.m., Mr. Paradis opened the door of the unit, then shut it. He did not go out of the room. [ 156 ] Mr. Peterson paced back and forth in front of Mr. Paradis’ room. He appeared to have knocked on the door several times. He went to the side of the adjoining unit that abutted the street and stood there. He then returned to moving back and forth in front of unit 122.

Mr. Peterson admitted to taking the licence plate off the Silverado and placing it on the truck bed cover (the “tonneau cover”). [ 157 ] Mr. Peterson confirmed that he hung around for about 8 minutes, hoping to coax Mr. Paradis out of his room. He did knock on his door. He was “trying to have him be cooperative with the situation.” He was “trying to get him to come out and speak to me.” He said that Mr. Paradis told him he was calling the cops. [ 158 ] At 5:07 a.m., the curtains of unit 122 moved.

[ 159 ] At 5:08 a.m., Mr. Peterson hit the door of the unit with his hand. [ 160 ] At 5:09 a.m., Mr. Peterson slammed his right shoulder into the door of unit 122 and broke in. He shut the door behind him. B. Stage Two [ 161 ] Mr. Peterson confirmed that he put his shoulder to the door. He acknowledged there was damage to the door. He was entering to arrest Mr. Paradis. Mr. Peterson said that you “can’t have a person out there with a weapon the size of a sword threatening people’s lives.” In cross-examination, he said that he had to catch someone who broke the law. He had grounds to arrest Mr. Paradis. Mr.

Peterson did not accept that he could have walked away. [ 162 ] Mr. Peterson then attempted to place Mr. Paradis under arrest. [ 163 ] Mr. Peterson confirmed that only he and Mr. Paradis were in unit 122. [ 164 ] The surveillance videos did not disclose what occurred in unit 122. Nothing could be seen behind the curtains or the closed door, aside from some motion at times occurring behind the curtains. [ 165 ] At 5:19 a.m., Mr. Peterson and Mr. Paradis briefly came out of the room, as had been witnessed by Ms. Austin. This was depicted on video. Mr.

Paradis attempted to escape but was dragged back into the room by Mr. Peterson. Mr. Peterson closed the door. [ 166 ] On close examination of this event, it did appear that Mr. Paradis’ head bounced off the door frame as he was pulled into the room. This could have contributed to his injuries. VI. Charges and Defence [ 167 ] While there is no video evidence of what happened in unit 122 at the material time, the trial did have the testimony of Mr. Peterson and the statement made by Mr. Paradis respecting what occurred.

Their evidence supported differing accounts of the crucial events. [ 168 ] Before I turn to that evidence, I will orient the analysis by reference to the charges faced by Mr. Peterson and his claimed defence. A. Charges [ 169 ] Mr. Peterson faced three charges – aggravated assault, unlawful confinement, and break and enter with intent to commit an indictable offence. 1. Established Elements [ 170 ] There was no issue of identity, jurisdiction, or date relating to any of the charged offences. The evidence establishes, beyond a reasonable doubt, that Mr.

Peterson and no one else could have been the perpetrator of the alleged offences and that the alleged offences took place in Edson, Alberta on December 21, 2020. With respect to the issue of identity, Mr. Peterson and the complainant Mr. Paradis were the only individuals present at the time and place of the alleged offences. They were the only individuals in unit 122 of the Aries Motel. 2.

Aggravated Assault [ 171 ] “Aggravated assault” is defined by s. 269 of the Criminal Code : 268(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. “Assault,” of the relevant type, is defined by s. 265(1) (

a) of the Criminal Code : 265(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly .... [ 172 ] To establish that Mr. Peterson committed the offence of aggravated assault, the Crown must prove, beyond a reasonable doubt, that • Mr. Peterson applied force to Mr. Paradis. • Mr. Peterson applied that force intentionally. • Mr. Paradis did not consent to the force that Mr. Peterson applied. • Mr. Peterson knew that Mr. Paradis did not consent to the force Mr. Peterson applied. • The force Mr. Peterson applied to Mr. Paradis wounded, maimed, or disfigured Mr. Paradis.

3. Unlawful Confinement [ 173 ] Under s. 279(2) of the Criminal Code , 279(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years .... [ 174 ] “At its core, unlawful confinement involves a deprivation of a person’s liberty:” R v Sundman , 2022 SCC 31 , Jamal J at para 21; R v Pritchard , 2008 SCC 59 , Binnie J at para 24; R v Parris , 2013 ONCA 515 , Watt JA at para 46. To establish that Mr. Peterson committed the offence of unlawful confinement, the Crown must prove, beyond a reasonable doubt, that • Mr. Peterson physically restrained Mr. Paradis against his will • the restraint was without lawful authority • Mr. Peterson intended to restrain Mr.

Paradis physically against his will. 4. Break and Enter and With Intent to Commit an Indictable Offence [ 175 ] The relevant elements of s. 348(1) of the Criminal Code provide that 348

(1) Every one who ... (

a) breaks and enters a place with intent to commit an indictable offence therein ... is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life .... [ 176 ] Under s. 348(3), (3) For the purposes of this

section and

section 351, place means (

a) a dwelling-house .... [ 177 ]

Section 2 of the Criminal Code defines “dwelling-house” to mean “the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence ....” [ 178 ]

Section 321 defines “break” to mean (

a) to break any part, internal or external, or (

b) to open any thing that is used or intended to be used to close or to cover an internal or external opening. [ 179 ]

Section 350 addresses the element of “entering:” 350 For the purposes of sections 348 and 349, (

a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and (

b) a person shall be deemed to have broken and entered if ... (ii) he entered without lawful justification or excuse by a permanent or temporary opening. [ 180 ] To establish this offence, the Crown must prove, beyond a reasonable doubt, that Mr. Peterson • broke and entered a place • this place was a “dwelling house” • when Mr. Peterson broke and entered the place he intended to commit an indictable offence. [ 181 ] In this instance, the indictable offence relevant to s. 348(1) (

a) was assault or unlawful confinement or both of them. B. Unavailable Defences 1. Self-Defence [ 182 ] Before turning to citizen’s arrest, I should briefly consider the possible availability of the defence of self-defence. Under the recently-amended s. 34 of the Criminal Code , 34(1) A person is not guilty of an offence if

(

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [ 183 ] Justice Martin wrote in R v Khill , 2021 SCC 37 at paras 37 , 44, 46 that [37] The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self- defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someone else; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s. 34(1)(c), the accused’s act must be reasonable in the circumstances.

Section 34(2) sets out nine non-exhaustive factors that shall be taken into account when considering if the accused’s act was reasonable in the circumstances under s. 34(1)(c). [44] The upshot of Parliament’s choice is that the defence is now more open and flexible and additional claims of self-defence will be placed before triers of fact.

Even in situations where the extent of the accused’s initial involvement is contested or the violent encounter developed over a series of discrete confrontations, the unified framework under s. 34 means judges need only provide juries with a single set of instructions. [46] In practice, the new provisions are simultaneously more generous to the accused and more restrictive: the provisions narrow the scope of self-defence in some factual circumstances and broaden it in others ( R v Bengy , 2015 ONCA 397 , 325 C.C.C. (3d) 22, at paras. 47-48 ; Paciocco (2014), at p. 296).

The transposition of mandatory conditions into mere factors suggests more flexibility in accessing the defence, but this added flexibility is counter-balanced by the requirement to consider certain factors — including proportionality and the availability of other means to respond to the use or threat of force — in every case in which they are relevant, regardless of the genesis of the confrontation or the features of the dispute. [ 184 ] In my opinion, on the evidence, this defence was not available to Mr. Peterson. [ 185 ] First, while Mr. Paradis did display a machete, Mr. Paradis did not move toward Mr.

Peterson with it. In fact, when Mr. Peterson produced his own knife, Mr. Paradis retreated into his room and shut the door. [ 186 ] Mr. Peterson then crossed the street before returning some time later. [ 187 ] Only after nearly 10 minutes had elapsed did Mr. Peterson break down Mr. Paradis’ door and lay hands on him. [ 188 ] In the circumstances, the first statutory requirement of self-defence was lacking. When Mr. Peterson embarked on his use of force against Mr. Paradis, Mr. Peterson neither believed subjectively nor had reasonable grounds to believe that he was being attacked.

To the contrary, at the time, he was not being attacked. A significant time passed before Mr. Peterson initiated his own use of force against Mr. Paradis. [ 189 ] Second, Mr. Peterson did not break down Mr. Paradis’ door to defend himself but to arrest Mr. Paradis, to control him, confine him, and turn him over to the police.

Justice Martin wrote in Khill at para 59 that “If there is no defensive or protective purpose, the rationale for the defence disappears.” At para 60 of Khill , Justice Martin expressly distinguished the motive for self-defence from the motive actuating citizen’s arrest: [60] The motive provision also distinguishes self-defence from other situations that may involve the excusable or authorized application of force by an accused, such as preventing the commission of an offence (s. 27), defence of property (s. 35) or citizen’s arrest (s. 494). [emphasis added] The second statutory condition for self-defence was not supported on the evidence.

2. Member of the RCMP [ 190 ] At multiple points in his testimony, Mr. Peterson referred to himself as a peace officer (invoking para (

c) of the definition in s. 2 of the Criminal Code ) and as a member of the RCMP. [ 191 ] The relevance of this to his defence would be that some additional authority and justification of conduct could be attracted by the status of peace officer. [ 192 ] Mr. Peterson said that the Crown cannot say that he is not a peace officer and that it is disrespectful for the Crown to say that he is not an RCMP officer. [ 193 ] However, insofar as Mr. Peterson’s invocation of a peace officer status bears on his defence, some evidence must support the viability of his claimed status. In this instance, we have only Mr.

Peterson’s bare assertions about his status. He has failed to discharge his evidential burden to provide a foundation for this element of a defence. I find that there is no air of reality to his claims to have peace officer status, whatever Mr. Peterson’s personal opinions might be. Without an air of reality, the claims of being a peace officer or of RCMP status can play no role supporting a response to the charges alleged by the Crown: see R v Cinous , 2002 SCC 29 , McLachlin CJC and Bastarache J at paras 50-54. [ 194 ] Mr.

Peterson’s claims about being peace officer or about having RCMP status therefore shall play no role in the assessment of whether the Crown has established the charges alleged against him. C. Citizen’s Arrest [ 195 ] Mr. Peterson’s response to the charges is that at all material times his actions were lawful as steps taken to effect a citizen’s arrest. Under s. 494 of the Criminal Code , 494(1) Any one may arrest without warrant (

a) a person whom he finds committing an indictable offence; or (

b) a person who, on reasonable grounds, he believes (

i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person ....

(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

(4) For greater certainty, a person who is authorized to make an arrest under this

section is a person who is authorized by law to do so for the purposes of

section

Section 25 of the Criminal Code provides as follows: 25

(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (

a) as a private person ... is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose ....

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self- preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm. [ 196 ] At all material times, Mr. Peterson alone dealt with Mr. Paradis. Mr. Paradis was initially in his room. He was not escaping from anyone. In my opinion, s. 494(1)(

b) has no application on the evidence, leaving for consideration only the application of s. 494(1) (a). [ 197 ] The citizen’s arrest provisions function as a defence in this way: If there were at least a reasonable doubt as to whether Mr. Peterson was engaged in a citizen’s arrest at the material times, he would have been entitled to lay hands on Mr. Paradis to arrest him. He would have been entitled to restrain Mr. Paradis so he could be turned over to a peace officer.

Whether the citizen’s arrest provisions would have exempted him from responsibility for the break and enter charge will be explored below. [ 198 ] Even if the citizen’s arrest provisions had some reasonably possible application to Mr. Peterson’s conduct, however, if the force he used was excessive he would lose protection from criminal responsibility.

Section 26 of the Criminal Code provides as follows: 26 Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess. Further, excessive force could put Mr. Peterson beyond the protection extended by s. 25(3). [ 199 ] For the Crown to establish that Mr. Peterson committed any of the charged offences, the Crown must not only prove the elements of those offences beyond a reasonable doubt but must prove, beyond a reasonable doubt, that no defence was available to Mr.

Peterson on the evidence, specifically, that Mr. Peterson had no defence of lawful use of force in the course of a citizen’s arrest.

VII. What Happened in the Room [ 200 ] There are two competing accounts of what happened in unit 122, outside the gaze of the surveillance video. A. Mr. Peterson’s Testimony [ 201 ] Mr. Peterson testified to his appreciation of the circumstances, including his own responsibilities, before he entered the room and he testified about what happened in the room. 1. Appreciation of the Circumstances [ 202 ] Mr. Peterson said that he was the victim to begin with. Mr. Paradis had produced a weapon and threatened his life. Mr. Paradis was the aggressor. [ 203 ] Mr.

Peterson considered himself to have had a duty to respond. He could not just ignore what Mr. Paradis did or run away. Mr. Paradis posed a public danger. As indicated, Mr. Peterson was of the view that Mr. Paradis had committed an offence under s. 88(1) of the Criminal Code . [ 204 ] Mr. Peterson testified that he planned to place Mr. Paradis under arrest and hold him while waiting for uniformed officers to arrive on scene. 2. In the Room [ 205 ] Mr. Peterson testified that when Mr. Peterson attempted to place Mr. Paradis under arrest, he was uncooperative. He tried to have Mr.

Paradis sit on a bed and on a chair by the TV. [ 206 ] In reference to Mr. Paradis having attempted to leave unit 122, Mr. Peterson said that he was trying to escape after he was placed under arrest. [ 207 ] Mr. Paradis reached into his pocket and went for his duffle bag. Mr. Peterson was not sure what Mr. Paradis had done with the weapon. Mr. Peterson was concerned that he would pull out the machete again. Mr. Peterson did not know where it went. Its exact location was unknown to him. For his own safety, Mr. Peterson placed Mr. Paradis under restraints. [ 208 ] Mr.

Peterson said he had to improvise the restraints. He took the string out of the hood of a hoodie in Mr. Paradis’ room. [ 209 ] Mr. Peterson said that restraining Mr. Paradis was fairly difficult, not an easy task. [ 210 ] Mr. Peterson stated that he tied Mr. Paradis’ hands behind his back but tied only one foot to his hands, so he couldn’t run. He did not agree with the characterization that he had “hogtied” Mr. Paradis. [ 211 ] After Mr. Paradis was restrained, there was no more contact between Mr. Peterson and Mr. Paradis. [ 212 ] Mr.

Peterson said that he got direct orders not to touch anything in the room after he restrained Mr. Paradis. This was communicated through “normal procedure of communications,” one peace officer to another, through telecommunication. Mr. Peterson therefore did not go through Mr. Paradis’ “stuff.” He only concerned himself with Mr. Paradis and with what was on his person. [ 213 ] He did pick up belongings that fell from Mr. Paradis’ pockets, the money and drugs. He patted down Mr. Paradis. This was a safety search. He located the third party’s driver’s licence in Mr.

Paradis’ pants pocket and put it on a desk. [ 214 ] Mr. Peterson had put the drugs and cash he found in the room in his pockets. He denied that he took the cash to keep for himself. Mr. Peterson intended to turn the cash and drugs over to the police. He said “I’m an RCMP officer.” He would not steal money from a suspect. [ 215 ] He then waited for the RCMP to arrive so he could turn Mr. Paradis over to them. As soon as they were there, he came out of the room. [ 216 ] When asked whether the members entered because they heard Mr. Paradis call for help, Mr.

Peterson said that they entered because he told them what was going on. [ 217 ] He denied that he assaulted Mr. Paradis. In answer to the question of whether he continued to beat Mr. Paradis until the police showed up, he said Absolutely not. In answer to the question of whether he repeatedly hit Mr. Paradis with his fist during this time, he said Absolutely not. He did not beat Mr. Paradis continuously. He denied having hit Mr. Paradis in the face. He said that it was not the truth at all that he had beaten Mr. Paradis for 20 minutes. [ 218 ] Mr. Peterson said that it was quite a struggle to restrain Mr.

Paradis. Mr. Peterson said that he felt that his own life was at risk. They did wrestle back and forth across the room. They fell into the counter. This was how the coffee carafe ended up on the ground. Mr. Paradis had knocked the coffee carafe when he swung his arm around as Mr. Peterson had picked him up off the bed. Mr. Peterson denied that he’d smashed the coffee carafe on Mr. Paradis’ face. [ 219 ] When asked in cross-examination how the blood got all over the room, Mr. Peterson said that Mr. Paradis was constantly resisting.

[220] Mr. Peterson had seen photographs of Mr. Paradis’ face. Mr. Peterson said Mr. Paradis sustained his injuries by hitting his faceon the door frame in the course of trying to escape. Mr. Peterson said that he had not seen where those injuries had come from until thevideo was reviewed in court. [221] Mr. Paradis could also have been injured when he hit his head on the counter when he and Mr. Peterson fell onto it. [222] Mr. Peterson denied that his knuckles were sore after he was arrested. [223] Mr. Peterson was shown photographs of his hands taken at the Detachment. Mr.

Peterson observed that there was a cut on hishand, which was a source of blood on his hands. When asked whether his hands were normally as red as depicted in the photographs, hesaid that the redness was due to smoking, which affected his circulation. He did not agree that his hands were swollen. There was bloodon his hands but he could not say whether it was Mr. Paradis’ blood or all his own blood. Mr. Peterson said that there was “not muchblood on my hands at all.” [224] Mr. Peterson emphasized that he was telling the truth at all times. He said “I’m not lying,” “I’m not trying to make up a story.” B. Mr.

Paradis’ Statement [225] Mr. Paradis confirmed that there was an individual in the parking lot before the events took place. I had redacted this element ofMr. Paradis’ statement in the hearsay voir dire. However, I remain entitled to vary my decision in light of new evidence that corroboratedthe previously-excluded element of a statement.

See R v R V, 2019 SCC 41, Karakatsanis J at para 74: [74] ... [A]s a general rule, an order related to the conduct of trial may be varied or revoked if there is a material change ofcircumstances .... see also R v Adams, (SCC), [1995] 4 S.C.R. 707, at para. 30; R v Calder, (SCC),[1996] 1 S.C.R. 660, at para. 21; R v La, (SCC), [1997] 2 S.C.R. 680, at para. 28. As evidence emerges at trial, boththe probative value and potential prejudice of proposed evidence may change. If a material change of circumstances occurs, either partymay request that a previous evidentiary ruling be re-visited.

My earlier ruling, though, is varied only to admit this specific element of his statement. [226] Mr. Paradis did not identify the individual in the parking lot. He only said that the individual was tall, wiry, about 250 lbs,Caucasian, with blond messy hair, about 30-35 years old. 1. In the Room [227] Mr. Paradis said that, without warning, the assailant “booted the door in.” He hit Mr. Paradis. Mr. Paradis was in shock. He saidthat the assailant hit him for 20 to 25 minutes. Mr. Paradis recounted that he had tried to escape out the door but the assailant grabbedhim back, “ripped him” back in.

The assailant smashed the coffee pot over his head. He said that the assailant hogtied him with a rope.He confirmed that he was left between the two beds in the room. He said that the assailant kicked him in the face. He described beinggiven a very severe beating. He had pleaded with the assailant not to kill him but the assailant just kept hitting him. He said it was “justruthless,” “brutal.” [228] When the police came, the assailant stepped out casually. Mr. Paradis said he started moaning, making as much noise as hecould. [229] Mr. Paradis said that there was blood and glass everywhere in the room. 2.

Hearsay [230] Mr. Peterson was right to emphasize that Mr. Paradis’ statement was hearsay. Mr. Paradis did not, he could not testify. [231] Hearsay must be approached cautiously. Mr. Paradis’ statement was not made under oath or affirmation. Mr. Paradis could notbe observed as he gave his statement. The statement was audio-recorded only. Mr. Paradis could not be cross-examined. [232] One source of concern with hearsay is that an out-of-court statement may not be reported accurately. That was not an issue withMr. Paradis’ statement. It was accurately recorded. The interview with Cst.

Torgunrud was audio-recorded. [233] Cst. Torgunrud took the statement from Mr. Paradis when he was at the Glenrose Rehabilitation Hospital. She had visited himthree times earlier, when he was hospitalized at the Royal Alex. He had not been alert enough to carry on conversations earlier. He wasgoing in and out of consciousness. [234] Mr. Paradis’ capacity to be interviewed and to recall at the time of the interview appeared to be good and did not impair hisrecounting of events. Cst. Torgenrud described Mr. Paradis during the interview as having been alert, responsive to questioning, notfidgety, calm, cooperative.

I had noted that during the interview, Mr. Paradis was lucid, coherent, consistent, responsive to questioning.He provided considerable detail. I do recognize that the time of the interview and the time of the events and the time between the eventsand the interview all must be distinguished. The evidence of Mr. Paradis’ ability to recall and communicate at the time of the interviewdoes support the accuracy of his representations about what he remembered, but does not, at least by itself, support the accuracy of thememories he reported. [235] Cst. Torgunrud did not ask leading questions.

She did not, in effect, feed information to Mr. Paradis so he could parrot back theinformation. He gave his account, not hers. [236] In his interview Mr. Paradis recounted personal observations. Mr. Paradis was certainly in a position to observe what was

occurring when the perpetrator entered his room and attacked him. I do not consider misperception to be a danger to the reliability of hisaccount as regards the events in the motel room. He was there. It happened to him. [237] On the evidence, I cannot identify a non-speculative motive for Mr. Paradis to give a false account of Mr. Peterson’s conduct.He did not know Mr. Peterson. Mr. Paradis had nothing to gain by falsifying his account of what Mr. Peterson did.

In contrast, I dounderstand that he was likely motivated to omit admitting any bad conduct of his own, particularly to a police officer. [238] There were three sets of concerns respecting Mr. Paradis as an accurate reporter of what happened in the room – inaccuracies inhis account, the effects of his injuries, and his bad character as demonstrated by his conduct on December 20 and 21 and by his criminalrecord. The first two sets of concerns go to the reliability of Mr. Paradis’ account, the last set of concerns go to his sincerity orcredibility. (

a) Inaccuracies [239] Some inaccuracies in Mr. Paradis’ account and therefore in his memories were identified. The Motel name was the “Aries” notthe “Anvil” as Mr. Paradis had named it. The truck driven by Mr. Paradis was a Chevy Silverado not a Ford F350. Given the passage oftime, the lack of evidence that Mr. Paradis had any familiarity with Edson or the Aries Motel besides at the time in question, and the factthat the truck was not his, I do not view these inaccuracies as significantly undermining the weight of Mr. Paradis’ account. (

b) Memory Formation [240] Some open alcohol was found in Mr. Paradis’ room. The consumption of alcohol could have affected Mr. Paradis’ memory ofevents. However, by the time the blood work was done at the Edson hospital, there was no trace of alcohol. Granted, by the time oftesting the alcohol may have left Mr. Paradis’ system, but at least the evidence showed that Mr. Paradis had not consumed alcohol to anextent that it was still in measurable amounts in his blood some time after his last drink (whenever that was). [241] Dr. Sood’s testimony suggested that Mr. Paradis had overdosed on opioids.

There is a reasonably prospect that this could haveaffected his memory. Moreover, assuming that Mr. Paradis did consume opioids to the point of overdose, he failed to mention this in hisstatement. [242] The most significant risks to Mr. Paradis’ memory were the result of his head injuries. He was very badly injured. Mr. Paradisdescribed the effects of his injuries in the interview. Mr. Paradis’ injuries could have impaired his memory of what occurred. (

c) Disposition for Untruthfulness (

i) Conduct on December 20 and 21 [243] On December 20 and 21, Mr. Paradis was in possession of a stolen truck. He registered under a false name at the motel. He wasin possession of a third-party’s driver’s licence, which can be inferred to be stolen property. This conduct shows commission of offencesrelevant to his honesty. The following passage from Justice LaForest’s decision in R v Corbett, [1988] 1 SCR 670, atpara 155 bears on the relevance of these offences to credibility: 155. Clearly, the probative value and prejudicial effect of a previous conviction are directly affected by the nature of that conviction.

Asthe Court of Appeals, D.C. Circuit, stated, in Gordon v. United States, 383 F.2d 936 (1967), at p. 940: In considering how the District Court is to exercise the discretionary power we granted, we must look to the legitimate purpose ofimpeachment which is, of course, not to show that the accused who takes the stand is a “bad” person but rather to show background factswhich bear directly on whether jurors ought to believe him rather than other and conflicting witnesses.

In common human experienceacts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honestyand integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, orother causes, generally have little or no direct bearing on honesty and veracity. [244] Mr. Paradis admitted to using illegal drugs. I accept that the drugs recovered were Mr. Paradis’ drugs. They were in a quantitysufficient to support a possession for the purpose of trafficking charge.

However, no other indicia of trafficking were in evidence. On theevidence, I do not find that he possessed the drugs for the purpose of trafficking. Nonetheless, he does appear to have been in illegalpossession of controlled drugs (but the substances were never analyzed). [245] Mr. Peterson claimed that a photograph of Mr. Paradis’ jacket showed that some additional baggies of drugs were attached to it.I reject that claim. Based on my observation of the photograph, what is depicted is a set of labels on the garment stained with blood. [246] The two hockey masks found in Mr.

Paradis’ bag supported suspicion of criminal conduct. It is true that those masks could havebeen used in robberies. Mr. Peterson correctly observed that there was no evidence of other hockey equipment. But there was noevidence that those masks had been or were to be used in any other criminal activity. I do not consider the presence of those masks tohave much weight on Mr. Paradis’ credibility. [247] Mr. Paradis displayed the machete. I’ll return to the significance of that below. He did fail to mention that part of the interactionwith Mr. Peterson, however, in his interview. [248] Mr.

Paradis was in possession of $1500. Had this been in all or mostly $20 or lower denomination bills, the cash might havesuggested trafficking. Mr. Paradis had said, though, that this was CERB money. There was no objective basis for doubting this claim. [249] The two visits that occurred before the incident with Mr. Peterson might also cause concern. One might be suspicious that those

visits involved some sort of criminal activity. However, that would only be a suspicion. And even if the visits involved criminal activity,it is as likely that what transpired had no significant bearing on honesty as that what transpired did have a significant bearing on honesty.The difficulty is that, on the evidence, what occurred during those visits is unknown. (ii) Criminal Record [250] I bear in mind Chief Justice Dickson’s observation in Corbett at para 22 There can surely be little argument that a prior criminal record is a fact which, to some extent at least, bears upon the credibility of awitness.

Of course, the mere fact that a witness was previously convicted of an offence does not mean that he or she necessarily shouldnot be believed, but it is a fact which a jury might take into account in assessing credibility. [251] Mr. Paradis’ criminal record was in evidence.

The record stretched from 2000 to 2020, totalling 97 convictions by my count. [252] There were convictions for • honesty offences – 41 theft under convictions, convictions for (e.g.) possession of property obtained by crime (6 convictions), aswell as fraud and robbery convictions • violence offences – 3 assault convictions, 5 weapons offences, 2 uttering threats convictions • drug offences – 3 simple possession offences • administration of justice offences – 24 convictions, including obstruction, failing to appear, and failing to abide by various courtorders. (

d) Need for Corroboration [253] In my opinion, given that Mr. Paradis’ account was provided in hearsay form and given the concerns about Mr. Paradis’reliability and his sincerity or credibility, it would be dangerous to convict based on his statement alone, were it not confirmed by otherevidence. The question is whether Mr. Paradis’ statement was corroborated.

See Vetrovec v The Queen, (SCC), [1982]1 SCR 811, Dickson J, as he then was, at 823, 826; R v W(N), 2017 NSPC 39, Derrick J, as she then was, at para 99; R v Khela, 2009SCC 4, Fish J at paras 35, 37; R v Youvarajah, 2013 SCC 41, Karakatsanis J at para 63. [254] In the present context, the critical feature of the corroborative evidence is that it must be “capable of restoring ... faith in therelevant aspects” of Mr.

Paradis’s account – it must be “capable of assuring the trier of fact that it is safe to rely upon the word of adisreputable witness:” : R v MacIsaac, 2017 ONCA 172, Trotter JA at paras 38, 44; see R v McFarlane, 2012 ONCA 355 at para 13(increase confidence “in that part” of the tainted witness’s testimony); R v Gagnon (2000), (ON CA), 147 CCC (3d)193 (ON CA), Weiler JA at para 48 (“independent evidence that makes it probable the [tainted witness’s] evidence is true”). [255] Potentially corroborative evidence cannot be equally consistent with the truth or the falsity of Mr. Paradis’ account.

Suchevidence could not confirm his credibility. [256] But “[a] fact that is capable of being corroborative does not lose that quality because it is admitted or admitted and explained.The Court in R. v. Boyce ... held that an explanation offered by the accused to account for an admitted fact capable of constitutingcorroboration, does not deprive the admitted fact of the character of being capable of constituting corroboration.

The jury may reject theexplanation, and it is for the jury to decide whether to accept the fact as corroboration:” R v McNamara (No. 1), 56CCC (2d) 193 (ON CA), Martin JA at 277; Gagnon at para 16. [257] I must observe that our law does not create classes of witnesses, those who must always be believed and those who must neverbe believed. Even those who have bad criminal records are entitled to equal protection and equal benefit of the law.

Whether anindividual’s evidence is accepted or not depends on all the evidence in a proceeding, not just evidence about who that individual is orwas, or about what that individual did or did not do. A trier of fact may accept all, some, or none of the evidence of any witness. (

e) Corroborative Evidence [258] The Crown listed evidence corroborative of Mr. Paradis’ account. In my opinion, the corroborative evidence fell into two maingroups, the first providing some general assurance of Mr. Paradis’ reliability, the second bearing directly on what happened in the room. (

i) General Accuracy [259] Some evidence provides some assurance of the overall accuracy of Mr. Paradis’ account, although it does not directlycorroborate his account of what happened in unit 122. This evidence supports the finding that

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