R v Midford, 2023 ABKB 720

Court of King’s Bench of Alberta Citation: R v Midford, 2023 ABKB 720 Date: 20231215 Docket: 220266589Q1 Registry: Calgary Between: His Majesty the King Crown - and - Scott Gestur Midford Accused _______________________________________________________ Reasons for Decision of the Honourable Justice C.D. Simard _______________________________________________________ I. Introduction [ 1 ] On March 18, 2022, the Accused Scott Midford (the “ Accused ” or “ Mr. Midford ”) and Austin Harris were involved in a physical altercation in the living room of Mr. Harris’s Calgary apartment. Mr.

Harris suffered a severe head injury when the back of his head hit the floor. Emergency Medical Services (“ EMS ”) were called approximately 40 minutes later. They arrived very quickly, and transported Mr. Harris to the Foothills hospital in Calgary. Mr. Harris died at the hospital nine and a half hours later, at 12:34 a.m. on March 19, 2022.

[2] The Crown alleges that Mr. Midford “did unlawfully cause the death of Austin Harris, thereby committing manslaughter,contrary to

section 236(

b) of the Criminal Code of Canada”. This offence is commonly called “unlawful act manslaughter”. The unlawfulact that the Crown alleges Mr. Midford committed is the assault of Mr. Harris, contrary to

section 265 of the Criminal Code. II. Governing Law A. The Elements of the Offence [3] To obtain a conviction of Mr. Midford for manslaughter, the Crown must prove beyond a reasonable doubt that Mr. Midfordcommitted the act comprising the offence (the “actus reus” or “prohibited conduct”) and also that the necessary mental element waspresent (the “mens rea” or “fault element”). The Supreme Court of Canada recently described the prohibited conduct and fault elementof unlawful act manslaughter, as follows: R v Javanmardi, 2019 SCC 54 at paras. 25 and 31: The actus reus of unlawful act manslaughter under s. 222(5)(

a) requires the Crown to prove that the accused committed an unlawful actand that the unlawful act caused death (R. v. Creighton, (SCC), [1993] 3 S.C.R. 3 (S.C.C.), at pp. 42-43; R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944 (S.C.C.), at pp. 959 and 961-62). The underlying unlawful act is described as the"predicate" offence (DeSousa, at p. 956; Creighton, at p. 42). ...

The fault element of unlawful act manslaughter is ... objective foreseeability of the risk of bodily harm that is neither trivial nortransitory, coupled with the fault element for the predicate offence (Creighton, at pp. 42 – 43; DeSousa, at pp. 961-62). [4] As McLachlin J explained in R v Creighton, (SCC) at paras 43, 52: "The law ... has not ... gone so far as torequire foreseeability of death..." [5] The fault element of the offence is objective, not subjective. In other words, the test “is not concerned with what the accusedintended or knew.

Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated.Objective mens rea is not concerned with what was actually in the accused’s mind, but with what should have been there, had theaccused proceeded reasonably”: Creighton at para. 45. [6] As noted earlier, the first element of the prohibited act that the Crown seeks to prove is that Mr. Midford committed anunlawful act by assaulting Mr. Harris, contrary to section 265(1)(

a) of the Criminal Code. That

section reads: 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… [7] The Crown must prove beyond a reasonable doubt each essential element of the underlying offence of assault. Thoseelements are:

a) that Mr. Midford applied force, directly or indirectly, to Mr. Harris;

b) that Mr. Midford intended to apply that force to Mr. Harris; and

c) that Mr. Harris did not consent to the application of that force. B.

The Standard of Proof [8] In R v Lifchus, [1997] 3 SCR 320, , the Supreme Court of Canada summarized the presumption ofinnocence and the standard of proof that applies in criminal cases, as follows: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials,the presumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense; • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guiltymust acquit.

III. The Parties’ Positions

[9] The Crown argues that it has proved all elements of the offence beyond a reasonable doubt so I should convict Mr. Midford. [10] Mr. Midford argues that the Crown has not proven his guilt beyond a reasonable doubt, for three reasons:

a) the Crown has failed to prove beyond a reasonable doubt the fault element of unlawful act manslaughter – specifically that therewas objective foreseeability of the risk of bodily harm to Mr. Harris that was neither trivial nor transitory. Mr. Midford argues that, basedon the evidence of Trent Fay, the only witness to the physical altercation who testified, Mr. Midford’s conduct was the most measuredresponse possible to Mr. Harris jumping up off the couch at Mr. Midford, and involved a very minimal use of force;

b) the Crown has failed to prove the underlying assault offence beyond a reasonable doubt, because Mr. Harris consented to thephysical altercation; and

c) Mr. Midford’s conduct was in defence of his person and therefore he cannot be guilty, pursuant to s. 34 of the Criminal Code. Inother words, he was acting in self-defence. IV. The Evidence at Trial A.

Summary of the Evidence [11] The parties entered an Agreed Statement of Facts (the “ASF”) that described many of the basic facts about what happened onMarch 17, 18 and 19, 2022. The parties also entered an Additional Agreed Statement of Facts (the “AASF”), but it only dealt with thecircumstances surrounding a statement that Mr. Midford made to the Calgary Police Service (“CPS”) on March 22, 2022. On theapplication of the Crown, I ruled that Mr. Midford’s statement to CPS was voluntary. However, because that statement was neverentered into evidence, the facts agreed to in the AASF are not relevant to my decision, and I will not refer to them any further. [12] The Crown called three witnesses:

a) Constable Roger Reinson of CPS. Constable Reinson described his attendance at Mr. Harris’s apartment on March 19, 2022 andexplained: (

i) photographs of the scene; (ii) photographs of Mr. Harris in the hospital; and (iii) 3-D imaging of the apartment, which CPS used to create an overhead, to-scale, image of the apartment;

b) Trent Fay, a friend of both Mr. Harris and Mr. Midford, who was present in the apartment on March 18, 2022 and witnessed thephysical altercation; and

c) Dr. Lucy Bradley, the medical examiner who conducted the autopsy on Mr. Harris on March 22, 2022 and created an autopsyreport on the same day (the “Autopsy Report”). [13] Mr. Midford did not testify and did not call any witnesses. He was not required to do so, because the burden of proof is alwayson the Crown, to prove his guilt beyond a reasonable doubt. Mr. Midford does not have to prove his innocence. [14] The evidence of Constable Reinson and Dr. Bradley was not seriously challenged. B. Assessment of Mr. Fay’s Testimony [15] I must carefully consider the credibility and reliability of Mr. Fay’s testimony.

He was the only witness present when thealtercation took place. At the time of trial, he was 29 years old. He and Mr. Harris had been close friends since high school and spenttime together almost daily. He was living with Mr. Harris when the alleged offence took place. He was also friends with Mr. Midford,having been introduced to him by Mr. Harris about two years before the alleged offence. [16] Credibility relates to a witness’s honesty and truthfulness: R v SGH, 2023 ABKB 39 at para 43. In assessing Mr.

Fay’scredibility, I must consider his evidence in its entirety, and I am not to view individual pieces of evidence in isolation. The factors that Ican consider in assessing Mr. Fay’s credibility include his: character, emotions and feelings, self-interest, hostility, attitude towards the accused, motive to lie, character for truthfulness and priordeceptive behavior.

Additionally, evidence of bias or dishonesty and material facts that are proven through the testimony of otherwitnesses can weigh into the analysis … Inconsistencies in the particulars and the whole of the evidence are certainly an importantconsideration. No single factor or group of factors is necessarily determinative, and any list of factors cannot be viewed as exhaustive. (SGH at paras 46 – 47). [17] In addition to his credibility, I must also consider the reliability of Mr. Fay’s evidence.

Reliability concerns the accuracy of awitness’s testimony – is the witness able to accurately observe, recall and recount the events in issue?: R v Morrissey, [1995] OJ No.639, (ONCA) at para 33. [18] Mr. Midford does not challenge the entirety of Mr. Fay’s evidence, but says that his testimony about a few key parts of thephysical altercation is neither credible nor reliable. In closing submissions, defence counsel made clear that he was not suggesting thatMr. Fay intentionally lied to the Court, but he argued that Mr. Fay was trying to advance his preferred narrative, so that someone “pays

for” the death of his friend. [ 19 ] I observed Mr. Fay’s testimony carefully during the trial. I have also reviewed the written transcript of his evidence. [ 20 ] Overall, I found Mr. Fay to be a candid, credible witness, who was trying his best to recall and honestly describe the very traumatic events that he observed approximately 20 months prior to trial. I agree with the Crown’s description of him as relatively unsophisticated. His manner of speaking was sometimes imprecise and his description of some of the events he witnessed was not always consistent.

However, I find that he was not trying to advance any particular narrative or agenda; instead, he was doing his best to tell the truth. [ 21 ] There were certainly inconsistencies is his evidence. When presented with those inconsistencies, he honestly admitted them and he also fairly admitted facts put to him by defence counsel, that were in Mr. Midford’s favour. I find that the inconsistences in his evidence were the result of his imprecise manner of speaking and the fact that the events he witnessed on March 18, 2022 were traumatic and fast-moving.

I will discuss each the main inconsistencies below when I describe my findings of fact. Some of the inconsistencies were not substantial or did not otherwise prevent me from determining what occurred. In other instances, the inconsistencies in Mr. Fay’s testimony left me unable to determine with certainty what had occurred at certain points in the altercation. [ 22 ] I accept Mr. Fay’s evidence that, unlike Mr. Midford and Mr. Harris, Mr. Fay was not intoxicated on March 18, 2022. He had only one small alcoholic drink that day.

He was also in very close proximity to the physical altercation, which took place right in front of him, within a few meters from where he was sitting. He had a clear and unobstructed view of the events that he described in his testimony, subject to one part of the altercation, which I will describe in greater detail later. [ 23 ] Overall, I found Mr. Fay to be a credible witness and I found his evidence to be generally reliable. C. The Events Preceding the Physical Altercation [ 24 ] The evidence about what happened before the physical altercation came from the ASF and from Mr.

Fay’s testimony, and was largely uncontested. [ 25 ] On the evening of March 17, 2022, Mr. Harris and Mr. Fay were at Mr. Harris’s apartment. Mr. Midford came to the apartment at around 9:00 p.m. The three of them left the apartment and Mr. Fay bought a 750 mL bottle of vodka. After walking around for a couple of hours, they returned to the apartment at around midnight. Mr. Fay had one drink that night and went to sleep shortly after they returned to the apartment. He believes that Mr. Harris and Mr. Midford finished the rest of the bottle of vodka between the two of them that night. All three men slept at Mr.

Harris’s apartment. [ 26 ] On March 18, 2022, Mr. Fay awoke around 12:00 noon. He had been sleeping in Mr. Harris’s bedroom and he then joined Mr. Harris and Mr. Midford, who were already awake, in the living room area of the apartment. [ 27 ] Two exhibits were entered which together provided a clear picture of the layout of the apartment: a book of photos of the apartment; and a to-scale overhead view of the apartment that CPS created used 3D scanning technology. The relevant facts regarding the layout of the apartment are as follows:

a) the living room area where the physical altercation took place is approximately four meters wide (east to west) and five meters long (north to south);

b) there was a television located in the southwest corner of this area;

c) there was a sofa in the northwest portion of this area. The sofa was about three meters long and one meter wide, and it sat in front of the west wall of the living room, so that someone sitting on it faced east;

d) a coffee table sat about one meter in front of the sofa;

e) the television was about 2.5 meters away from the coffee table, three meters from the left-hand side of the sofa and 4.5 meters from the right-hand side of the sofa; and

f) there was a large open space at the south end of the living room area, between the television, the coffee table and the sofa, measuring about three meters by three meters. [ 28 ] When Mr. Fay joined his friends in the living room on March 18, 2022, Mr. Harris was sitting on the right-hand side of the sofa and Mr. Midford was standing between the television and the coffee table. Mr. Fay sat down on the left-hand side of the sofa. In these positions, Mr. Harris and Mr. Fay were sitting about one or 1.5 meters apart. Mr. Midford was approximately three to four meters away from Mr.

Harris and one to two meters away from Mr. Fay. The men remained in these positions for the next one or two hours, prior to the physical altercation. [ 29 ] From Mr. Fay’s position seated on the left-hand side of the sofa, there was nothing obstructing his view of Mr. Harris or Mr. Midford. [ 30 ] When Mr. Fay came into the living room, the other two men were listening to music on the television and Mr. Midford was freestyle rapping to the music. There were two 750 mL liquor bottles, one of vodka and one of whisky. The vodka bottle Mr.

Fay saw in the living room on March 18 may have been different than the one he had bought the night before, which Mr. Midford and Mr. Harris had finished that night. [ 31 ] Both Mr. Harris and Mr. Midford were drinking whisky straight from the bottle. They were both intoxicated when Mr. Fay entered the room. Both men were slurring their words, although they were able to walk without stumbling.

[ 32 ] Mr. Fay had only one small drink from the whisky bottle that day. [ 33 ] Over the next couple of hours, Mr. Midford and Mr. Harris drank large amounts from the whisky bottle. The mood was confrontational. Mr. Midford and Mr. Harris were arguing. Mr. Harris had repeatedly told Mr. Midford to turn down the music on the television and Mr. Midford did not do so. Mr. Midford accused Mr. Harris of having sneaked or hidden some of whisky from the bottle in a cup. These arguments continued throughout the one or two hours Mr. Fay was in the living room with the other two. Mr. Harris was also telling Mr.

Midford to leave the apartment, but Mr. Midford refused. [ 34 ] Mr. Fay described Mr. Midford as aggressive and Mr. Harris as being more relaxed. Mr. Fay said that Mr. Midford was trying to fight, throwing punches at him and Mr. Harris. He agreed that these punches were not “all out punches” and were “more like little jabs” but that they were hard. In cross-examination, based on his statement to CPS shortly after the incident, Mr. Fay agreed that Mr. Midford punching him and Mr. Harris did not occur immediately before the physical altercation. [ 35 ] When defence counsel cross-examined Mr. Fay about Mr.

Harris’s requests that Mr. Midford turn down the volume of the television, he initially denied that Mr. Harris was yelling, or even speaking loudly. When presented with the transcript of his interview with CPS on March 19, 2022, he admitted that Mr. Harris was matching the tone of Mr. Midford, and that he might have been talking loudly, or yelling. [ 36 ] Thus, over the one or two hours preceding the physical altercation, Mr. Harris and Mr. Midford were extremely intoxicated and were verbally arguing with raised voices. The mood was confrontational. D.

The Physical Altercation [ 37 ] I will now describe what occurred during the physical altercation that caused Mr. Harris’s death. These events occurred sometime around 2:00 or 2:30 p.m. on March 18, 2022. [ 38 ] Mr. Fay said that Mr. Harris never struck Mr. Midford, and this evidence was not challenged. [ 39 ] Mr. Fay testified that just prior to the physical altercation, Mr. Midford walked from where he was standing in the open area in front of the television, passing in front of Mr. Fay who was sitting on the left-hand side of the couch, between the sofa and the coffee table, to where Mr.

Harris was located on the right-hand side of the sofa. This is an important piece of evidence. Defence counsel suggested to Mr. Fay that he was looking at his phone during this time and the first portion of the altercation that he actually saw was only later, when Mr. Midford had already placed Mr. Harris in a headlock. Mr. Fay denied this. I accept Mr. Fay’s evidence on this point. Mr. Fay was sober, he was well-placed to see this event, Mr. Midford would have passed right in front of him to get to Mr.

Harris, and given the confrontational mood in the room, it is not surprising that he would have noticed this. [ 40 ] I find that just before the physical altercation began, Mr. Midford walked from where he was standing in the open area between the television and the sofa, to where Mr. Harris was sitting on the right-hand side of the sofa. Mr. Midford walked three or four meters to reach Mr. Harris. [ 41 ] The parties agree that Mr. Midford then placed Mr. Harris in a reverse headlock hold. I will describe that in more detail later. Mr. Fay’s evidence about exactly what Mr. Harris was doing when Mr.

Midford reached him on the right-hand side of the sofa was not consistent, and he was cross-examined extensively about this part of the altercation. The different descriptions given by Mr. Fay were as follows:

a) in his evidence in chief, he said “Austin was sitting on the couch, and Scott grabbed him by the neck...” and also that “Austin was sitting on the edge of the couch and Scott grabbed him and kind of lifted him up”;

b) when defence counsel first cross-examined him about this part of the altercation, Mr. Fay stated that when Mr. Midford reached Mr. Harris, he was leaning forward to get up, but he was still sitting on the couch;

c) in cross-examination, he admitted that in his interview with CPS on March 19, 2022, he had described Mr. Harris’s position a number of different ways, as follows: (

i) first he said “Austin kind of jumped up off the couch at him, I think. Or got up and maybe Scott grabbed him and then kind of grabbed his neck”; (ii) then he said “I think he kind of – Austin kind of got up ... I think, and then Scott, like, grabbed him pretty quickly”; (iii) then, a Detective suggested this to him: “So, Austin gets up, Scott grabs him – because it’s go time, essentially” and in response, Mr. Fay said “Yeah. I don’t know – I don’t even know if Austin was getting up to fight him or, like – it’s just kind of blurry ...

Well, I don’t think Austin was trying to fight him at all”; (iv) then he said: “And then – yeah. Austin kind of leaned forward. I don’t know if he leaned forward or got up but something like that” and (

v) then, the Detective suggested this to him: “So, he leans forward either to get up just to adjust in the chair” and in response, Mr. Fay said “Yeah. Something like that”;

d) after Mr. Fay’s attention was drawn to these prior statements, the cross-examination continued. During that continued cross- examination: (

i) Mr. Fay stated that his characterization to CPS of his recollection of these events as “blurry” was because the event happened quickly and he was having trouble thinking that day;

(ii) he had a clear memory that Mr. Harris was still seated but leaning forward when Mr. Midford put him in the headlock; (iii) the reason he had said to CPS that Mr. Harris “jumped up” was because when Mr. Midford placed Mr. Harris in the headlock, Mr. Harris did technically get up and was on his feet; and (iv) he denied the suggestion put to him by defence counsel, that Mr. Harris came at Mr. Midford almost in a bear hug, and he maintained that Mr. Harris had only grabbed the edge of the seat and leaned forward. [ 42 ] I find that the suggestion that Mr. Harris was getting up to fight Mr.

Midford came from the interviewing CPS detective, and that characterization was not adopted by Mr. Fay. [ 43 ] While Mr. Fay has described this part of the altercation in a number of different ways, the consistent substance of his testimony at trial was that Mr. Harris was still seated and was leaning forward or just starting to get up when Mr. Midford placed him in the reverse headlock. Mr.

Fay maintained the correctness of this description in the face of a persistent and probing cross-examination. [ 44 ] It is important to note that this event happened very quickly – the entire physical altercation, which I will go on to describe to its conclusion, lasted no more than five or 10 seconds. There was a high degree of force and violence involved. It is not surprising that Mr. Fay had difficulty finding the precise words to describe Mr.

Harris’s exact position when the altercation started, and that he used a variety of different phrases to do so. [ 45 ] Having considered all the evidence and having carefully observed Mr. Fay testify, I find the following facts:

a) when Mr. Midford reached Mr. Harris’s position on the right-hand side of the couch, Mr. Harris was not yet standing. He was still sitting and leaning forward, or was just starting to rise from his seat; and

b) it was the headlock administered by Mr. Midford, and perhaps Mr. Harris’s reaction to that headlock, that brought Mr. Harris to his feet. [ 46 ] I also take note of the following evidence:

a) it is uncontested that soon after reaching where Mr. Harris was sitting on the right-hand side of the sofa, Mr. Midford placed Mr. Harris in a “reverse headlock”, meaning that Mr. Midford was standing with his bent arm around Mr. Harris’s neck, while Mr. Harris was also standing, but bent over at the waist so that his upper body was in a somewhat horizontal position with his face was pointed to the floor. Mr. Harris and Mr. Midford were therefore both on their feet and facing each other; and

b) Mr. Fay described Mr. Midford’s height as about 5’11 and Mr. Harris’s height as about 5’9’’. The Autopsy Report reported Mr. Harris’s height as 185 cm, which is almost 6’1’’. Both men were of similar height. [ 47 ] These facts reinforce my finding that Mr. Midford placed Mr. Harris in the reverse headlock while Mr. Harris was still sitting, leaning forward or in the act of rising. If Mr. Harris had instead jumped up and was standing prior to Mr. Midford putting him in the reverse headlock, as defence counsel suggested in argument, that would have required Mr.

Harris to have bent over at the waist to lower his head, and/or Mr. Midford to reach up with his arm or to jump up so that his arm was high enough to administer the reverse headlock on the standing Mr. Harris, and to then pull his head down, bending him over at the waist. There was no suggestion in the evidence that anything like that occurred. [ 48 ] After Mr. Midford had Mr. Harris in the reverse headlock, he walked backwards while Mr. Harris walked forwards. They moved together in this way between the couch and coffee table, back to the open area between the furniture and the television – near where Mr.

Midford had been standing before he walked over to Mr. Harris. Mr. Midford was pulling Mr. Harris as he moved backwards and Mr. Harris was pushing Mr. Midford as he moved forwards. Mr. Harris was trying to get out of the reverse headlock, but could not. [ 49 ] Defence counsel challenged Mr. Fay’s evidence about the amount of force Mr. Midford applied to Mr. Harris’s neck during this part of the altercation. In his evidence in chief, Mr. Fay said that Mr. Midford grabbed Mr. Harris by the neck and was “choking” him at this point.

In cross-examination, he maintained that his description of the reverse headlock as a “chokehold” was accurate, describing that he saw Mr. Midford squeezing Mr. Harris’s neck and he saw that Mr. Midford was tensed up when he grabbed Mr. Harris. He did admit that he did not know exactly how much pressure Mr. Midford was applying to Mr. Harris’s neck, nor whether the reverse headlock was restricting Mr. Harris’s breathing. Based on the evidence, I am not able to determine whether Mr. Midford was indeed preventing Mr. Harris from breathing while he held him in the reverse headlock.

However, that detail is not determinative in this case. I find as a fact that Mr. Midford was applying enough pressure around Mr. Harris’s neck, so that Mr. Harris could not get out of the headlock, despite trying to do so. [ 50 ] When Mr. Midford and Mr. Harris reached the open area between the television and the furniture, they spun around so that Mr. Midford was facing away from the couch and Mr. Harris was facing away from television. Mr. Midford bent down so that his knees were very low to the floor, then released Mr. Harris from the reverse headlock. Mr.

Harris’s bottom and elbows contacted the floor first, and Mr. Harris’s head snapped back and the back of his head then hit the floor. The parties agree that this blow to Mr. Harris’s head caused his death. [ 51 ] Mr. Fay’s evidence in chief was that the entire physical altercation happened very quickly, lasting between five and 10 seconds. During Mr. Fay’s cross-examination, defence counsel counted to 10, after which Mr. Fay revised his estimate of the duration of the altercation to “closer to five seconds”.

It is impossible to determine exactly how long the altercation lasted, but it is clear that the events unfolded very rapidly. [ 52 ] The evidence about how Mr. Harris ended up on the floor and what caused Mr. Harris’s head to snap back and hit the floor was contested. In his evidence in chief, Mr. Fay first described that part of the altercation in these ways:

a) “Scott kind of dropped Austin down to his – like, so Austin was kind of on the ground, and then Scott let go of him and snapped his head back”; b) “[Mr. Midford] kind of pushed [Mr. Harris] down so Austin was kind of on his butt”; and

c) he then provided greater detail in this series of questions from the Crown: Q Okay. You mentioned that Scott dropped Austin onto the ground, that Austin hits his bum first and then his head hit -- whips back. A Yeah. Q What other part of Austin's body hit the floor? A Just mostly that, his elbows and his butt, I guess, went down first, and then when he released him, he flicked his head back. Q When you say "he flicked his head back" what do you mean by that? A When Scott let go of him, he put his arm up and snapped Austin's neck back. Q Can you tell us in a little bit more detail about that part.

So you're saying that he let go of him and he snapped his neck back. I just -- I want to have a clear understanding -- A Yeah. Q -- of what you saw Scott do. A He went down with Austin, snapped his neck back, and Austin's head hit the floor. Q When you say he -- Scott snapped Austin's neck back -- A He -- because he was holding onto the choke, and then when he let go, he pulled his arm underneath his chin, which threw his head backwards. … Q Did you hear anything when Austin’s head hit the ground? A I just heard the noise of his head hitting the ground. Q What did that sound like?

A Just a quick bang. [ 53 ] Defence counsel cross-examined Mr. Fay extensively about this part of the altercation. Mr. Fay agreed that after the other two men spun around, Mr. Midford’s back was to him. As a result, he could not see all of Mr. Harris’s body during this part of the altercation, but he consistently maintained that he could see Mr. Harris’s head and parts of his body, and that he both saw and heard Mr. Harris’s head hit the floor. He admitted that he could not be sure about what caused Mr.

Harris’s head to snap back and hit the floor. [ 54 ] I am unable to determine from the evidence precisely what amount of force Mr. Midford applied in moving Mr. Harris down towards the floor, before releasing his head. However, having considered the following facts, I find that Mr. Midford was using a considerable amount of force at this time:

a) Mr. Midford still had Mr. Harris in a restraint hold that allowed him to control Mr. Harris’s body position to some degree, even though Mr. Harris was resisting;

b) at the start of this phase of the altercation, Mr. Harris was bent over at the waist with his feet on the ground, supporting at least some of his own body weight;

c) however, by the end of this phase of the altercation, Mr. Harris’s body had moved backwards and he was off balance, to the point where his feet could no longer have been supporting much of his weight, because after being released from the headlock, his bottom and elbows hit the floor first, followed by his head;

d) considerable force would have been required to move Mr. Harris’s body position and put him off balance. Given that Mr. Midford was still holding Mr. Harris’s head at this time, Mr. Midford was obviously moving in sync with Mr. Harris at this time;

e) it is impossible to determine precisely how much of the force that put Mr. Harris out of balance and propelled him backwards onto his bottom, elbows and head, came from Mr. Midford and how much came from Mr. Harris, who was resisting the headlock;

f) however, the evidence is clear that just before Mr. Midford released Mr. Harris from the headlock, Mr. Midford had bent his knees and moved lower to the floor. That evidence suggests that, at least to some degree, Mr. Midford was moving forwards at the same time that Mr. Harris’s center of gravity was moving backwards; and

g) defence counsel suggested in his closing submissions that Mr. Midford placed Mr. Harris on his bottom “in a controlled manner”, but the evidence does not support that characterization. This was a fast, violent altercation in which Mr. Midford was exerting a considerable amount of force to restrain Mr. Harris, and Mr. Harris was struggling to release himself.

[ 55 ] From the evidence, I cannot determine exactly what caused Mr. Harris’s head to snap backwards before it hit the floor. Mr. Midford may have used his arm to apply force to the front of Mr. Harris’s neck, thereby forcing it up and back. Mr. Midford may have simply released the reverse headlock restraint hold while Mr. Harris was moving backwards and out of balance, after which some combination of gravity and the forces continuing from their violent struggle caused his head to snap back.

It might have been a combination of these different forces. [ 56 ] Ultimately, I find that it does not matter what precise force or combination of forces caused Mr. Harris’s head to snap back. It is clear on the evidence, and I find as a fact, that Mr. Midford releasing the reverse headlock is what resulted in Mr. Harris’s head hitting the floor. E. The Events After the Physical Altercation [ 57 ] Mr. Fay’s evidence about what occurred in the apartment after Mr. Harris’s head hit the floor was not disputed:

a) Mr. Harris began bleeding from the back of his head;

b) Mr. Harris briefly pushed himself up on his elbows and moved himself towards the couch, but he very quickly became unconscious, and lay on his back;

c) Mr. Midford removed the buttoned shirt that he had been wearing over another shirt and placed it on the back of Mr. Harris’s head. He then placed a pillow under Mr. Harris’s head;

d) Mr. Harris’s head stopped bleeding relatively quickly after the injury;

e) Mr. Fay and Mr. Midford thought that Mr. Harris was okay, and that he was just passed out from the alcohol he had consumed;

f) Mr. Fay left the apartment to buy some vape juice. When he returned, Mr. Harris was still unconscious and Mr. Fay then decided to call an ambulance;

g) Mr. Fay ordered an Uber ride for Mr. Midford, Mr. Midford left the apartment and Mr. Fay called 911. Members of the fire department arrived very quickly, as they had been in the vicinity for some unrelated reason; and

h) the first responders arrived about 40 minutes after Mr. Harris was injured. F. The Cause of Mr. Harris’s Death [ 58 ] Mr. Harris’s medical records were admitted as exhibits at trial. When EMS personnel attended at Mr. Harris’s apartment, they initiated resuscitation, noting that Mr. Harris’s breathing was fast and his heartbeat was slow. He was transported to the Foothills hospital, arriving at 3:28 p.m. Medical staff promptly administered a CT scan, which revealed that Mr. Harris’s skull was fractured and that there was bleeding in and around his brain, which had caused his brain to shift inside his skull.

There was no prognosis for recovery and Mr. Harris was declared neurologically dead at 12:34 a.m. on March 19, 2022. [ 59 ] In the ASF, the Crown and Mr. Midford agreed that Dr. Bradley was an expert in the field of forensic pathology, and the Autopsy Report was admitted as an exhibit in the trial by agreement of the parties. I heard evidence regarding Dr. Bradley’s qualifications and experience, after which I ruled that she was qualified to give expert opinion testimony in the field of forensic pathology.

She is an experienced forensic pathologist who has conducted many hundreds of autopsies. [ 60 ] Her autopsy findings were definitive. Mr. Harris died as a result of the blunt injury to the back of his head. Dr. Bradley explained the physical results of the injury and the manner in which the injury caused Mr. Harris’s death in significant detail. The most important details are:

a) the blow to Mr. Harris’s head resulted in two horizontal cuts and bruising to the back right side of his scalp;

b) his skull was fractured in two places – there was a larger fracture on the back right portion of his skull (approximately 7.5 cm long, with a second branch about 3 cm long) and a smaller fracture on the back left portion of his skull (approximately 2.5 cm long);

c) the blow to the back right side of Mr. Harris’s head pushed his brain forward to the left, causing bruising when it made contact with the inside of his skull;

d) significant bleeding occurred in and around the left side of Mr. Harris’s brain (Dr. Bradley estimated that the volumes of clotted blood found during the autopsy were approximately 125 mL on top of his brain and another 125 mL below his brain); and

e) that amount of bleeding left the brain with nowhere to go inside Mr. Harris’s skull and his brain was pushed downward and to the right. [ 61 ] Dr. Bradley agreed that the head injuries she observed and reported could have been caused by Mr. Harris landing on his bottom from a standing position, and then his head subsequently whipping back and hitting the floor. She agreed that the lethal head injury could have been caused by a fall “from any height”. [ 62 ] There were some questions that Dr. Bradley was not able to answer:

a) she could not determine what amount of force had caused the injuries; and

b) she could not determine whether Mr. Harris would have survived the injury, had he received immediate medical attention (as Ihave noted above, EMS personnel arrived only approximately 40 minutes after the injury occurred). [63] She also explained a toxicology report that had been created by testing a sample of Mr. Harris’s blood taken while he was stillalive in the hospital, as well as a sample of the clotted blood from his brain, taken during the autopsy. The most notable finding in thisreport is that his blood sample from the hospital contained alcohol in a concentration of more than 5.0 grams/L.

The “comments” sectionof the toxicology report contained a reference guide, listing the possible effects on individuals of different blood alcohol levels. Thereference comment for blood alcohol concentrations above 4.0 grams/L stated “possible death by respiratory depression or cardiacarrest”. [64] Dr. Bradley was careful to point out that while Mr. Harris’s blood alcohol level was elevated, that did not prove what effectthe alcohol had on him.

The effects of any given blood alcohol concentration vary from individual to individual and are dependent,among other things, on that individual’s personal tolerance level. Because Dr. Bradley concluded that Mr. Harris’s head injury wassufficient on its own to have caused his death, she did not speculate about whether Mr. Harris’s intoxication may have contributed to theevents leading to his injury. [65] In any event, the toxicology report results certainly corroborate Mr. Fay’s evidence, that Mr. Harris was highly intoxicated onMarch 18, 2022. [66] Having considered all the evidence, I find that Mr.

Harris suffered the lethal blunt injury to his head when his head hit theapartment floor at the conclusion of the physical altercation with Mr. Midford. V. Has the Crown Proved Mr. Midford’s Guilt Beyonda Reasonable Doubt? [67] I will consider each element of the charged offence, in turn. As noted above, to establish the prohibited conduct element ofunlawful act manslaughter, the Crown must prove beyond a reasonable doubt that:

a) Mr. Midford committed an unlawful act; and

b) the unlawful act caused Mr. Harris’s death. A. First Element of the Prohibited Conduct – the Unlawful Act of Assault [68] I will first consider the alleged unlawful act, which in this case is assault. To establish that Mr. Midford committed an assault,the Crown must prove beyond a reasonable doubt that:

a) Mr. Midford applied force, directly or indirectly, to Mr. Harris;

b) Mr. Midford intended to apply that force to Mr. Harris; and

c) Mr. Harris did not consent to the application of force. [69] The evidence establishes beyond a reasonable doubt that Mr. Midford applied force to Mr. Harris. He placed Mr. Harris in areverse headlock by putting his bent arm around Mr. Harris’s neck, with enough force that Mr. Harris was unable to free himself. Mr.Midford maintained this hold as he and Mr. Harris moved across the apartment and spun around. As noted above, I have found that Mr.Midford was applying considerable force to Mr.

Harris just prior to releasing him from the headlock. [70] I also find that the Crown has proven beyond a reasonable doubt that Mr. Midford intended to apply the force to Mr. Harris.Mr. Midford initiated the physical altercation by actively moving three to four meters across the room and placing Mr. Harris in a reverseheadlock. [71] Defence counsel argued that the Crown has failed to prove the third element of the assault offence, that Mr. Harris did notconsent to the application of force by Mr. Midford.

As with the other elements of the offence, the Crown must prove this beyond areasonable doubt. [72] “Consent” in this context means: ... a genuine consent freely given expressing an acceptance of battle with an appreciation of its risks and with, in [the consenting party’s]view, freedom to make an alternative choice if he desired. R v Stanley (1977), (BC CA), 36 CCC (2d) 216 at 234, 1977 CanLII (BCCA). [73] I am satisfied beyond a reasonable doubt that Mr. Harris did not consent to the application of force by Mr. Midford.

There wasabsolutely no evidence suggesting that he consented, either verbally or by his conduct. While the two men had been arguing, there wasno evidence that Mr. Harris did or said anything that would indicate his consent to a physical altercation with Mr. Midford. [74] Accordingly, I find that that the Crown has proven each element of the underlying offence of assault, beyond a reasonabledoubt.

B. Self - Defence [ 75 ] I must now consider Mr. Midford’s argument that when he applied force to Mr. Harris, he was acting in self-defence. This defence is set out in

section 34 of the Criminal Code . The relevant parts of that

section read as follows: 34(1) Defence — use or threat of force -- 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. 34(2) Factors -- 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. [ 76 ] If the three elements set out in section 34(1) are proven, Mr. Midford will not be guilty of the offence of assault and the Crown will have failed to prove the unlawful act element of the manslaughter charge. 1. The First Inquiry – Air of Reality [ 77 ] I must first determine whether there is an “air of reality” to this defence. Mr. Midford has the burden of establishing an evidentiary foundation for the defence.

He will satisfy this burden if there is evidence upon which a properly instructed jury acting reasonably could acquit, if the jury believed the evidence to be true. In considering this question, I must consider the totality of the evidence and I must assume that the evidence being relied on by Mr. Midford is true. There is no requirement that the evidence must be adduced by Mr. Midford.

At this stage of the inquiry, I am not to decide the substantive merits of the defence, nor make determinations about credibility, weigh the evidence, make findings of fact or draw determinate factual inferences: R v Effert , 2021 ABCA 388 at paras. 13 – 14 ; R v Cinous , 2002 SCC 29 at paras 53 – 54 . [ 78 ] Although this was not a jury trial, this test still applies to me as the trier of fact. [ 79 ] To satisfy his burden, Mr. Midford must establish that there is an evidentiary basis for all three elements of self-defence as set out in s. 34 of the Criminal Code :

a) that Mr. Midford believed on reasonable grounds that force was being used against him or that a threat of force was being made against him;

b) that the force that Mr. Midford applied to Mr. Harris was committed for the purpose of defending or protecting himself from that use or threat of force; and

c) that Mr. Midford’s application of force to Mr. Harris was reasonable in the circumstances. [ 80 ] In deciding whether there is an evidential basis for the third element of the defence, the reasonableness of Mr. Midford’s conduct, I must consider the relevant circumstances of Mr. Midford, Mr. Harris and the altercation, including but not limited to the factors listed in section 34(2) that I have set out above. [ 81 ] I will now carry out this analysis to decide whether there is an “air of reality” to the defence. [ 82 ] I find that there is an evidential basis for Mr.

Midford to have had a reasonable belief that a threat of force was being made against him, on the basis of Mr. Fay’s statement to CPS on March 19, 2022 that “Austin kind of jumped up off the couch at him, I think...” In applying the “air of reality” test, I must ignore for the moment that, in my analysis of the offence of assault, I have already considered this evidence and found that this is not in what happened after Mr. Midford had walked across the room to where Mr. Harris

was located. However, if it was believed that Mr. Harris had jumped up at Mr. Midford after Mr. Midford walked over to Mr. Harris, that is evidence on which a jury could conclude that Mr. Midford reasonably believed that he was being threatened with force. There is no question that the two men had been arguing, and the mood in the room at that time was confrontational. [ 83 ] Similarly, the evidence that Mr. Harris jumped up off the couch at Mr. Harris could form the basis for a finding that Mr. Midford placed Mr. Harris in a reverse headlock to protect himself from the threat posed by Mr.

Harris jumping up at him. [ 84 ] Just prior to the physical altercation, Mr. Midford and Mr. Harris, two men of similar size, had been arguing and yelling at each other. Having considered the factors listed in section 34(2) of the Criminal Code and all the other circumstances existing at that time, I find that the evidence about Mr. Harris jumping up at Mr. Midford could lead a jury to conclude that Mr. Midford putting Mr.

Harris in a reverse headlock was a reasonable response. [ 85 ] Thus, I conclude that there is an air of reality to the defence, and therefore the burden shifts to the Crown to disprove the defence beyond a reasonable doubt, on its merits. To do this, the Crown must disprove at least one of the three elements of self-defence under s. 34(1). 2. The Merits of the Defence [ 86 ] I have reviewed all the evidence in this case, weighed that evidence, considered the credibility of Mr. Fay’s evidence, and made the findings of fact described earlier.

As a result, I find that the Crown has disproved beyond a reasonable doubt that Mr. Midford acted in self-defence. I find that Mr. Midford did not believe on reasonable grounds that Mr. Harris was using force against him or making a threat of force against him. This is the first element of self-defence, under section 34(1)(a). In the Supreme Court of Canada’s decision in R v Khill , 2021 SCC 37 , Martin J for the majority described this element as follows (at para. 52, 53): This element of self-defence considers the accused’s state of mind and the perception of events that led them to act. ...

Unless the accused subjectively believed that force or a threat thereof was being used against their person or that of another, the defence is unavailable. Importantly, the accused’s actual belief must be held “on reasonable grounds”. [ 87 ] Therefore, to succeed on this element of the defence, Mr. Midford must have subjectively believed that Mr. Harris was using force against him or threatening to do so. In addition, Mr. Midford must have believed this on reasonable grounds.

Martin J described how this objective test is to be applied: Khill at paras. 54, 57 : The test to judge the reasonableness of the accused’s belief under the self-defence provisions has traditionally been understood to be a blended or modified objective standard. Reasonableness was not measured “from the perspective of the hypothetically neutral reasonable man, divorced from the appellant’s personal circumstances” ...

Instead, it was contextualized to some extent: the accused’s beliefs were assessed from the perspective of an ordinary person who shares the attributes, experiences and circumstances of the accused where those characteristics and experiences were relevant to the accused’s belief or actions ... The question is not therefore what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive. [ 88 ] In this case, Mr. Midford did not testify, as was his right.

As a result, there was no evidence from him indicating that he subjectively believed Mr. Harris was using force against him or threatening to. That, of course, does not preclude me from finding that Mr. Midford acted in self-defence. However, it means that in the absence of direct evidence from Mr. Midford, I must make a finding about his subjective state of mind by making inferences from other evidence. [ 89 ] I find that the Crown has disproven beyond a reasonable doubt both the subjective and objective parts of this first element of self-defence: Mr. Midford did not have a subjective belief that Mr.

Harris was using force against him or threatening to do so; and an ordinary person who shared the relevant attributes, experiences and circumstances of Mr. Midford would not have perceived that force was being used against him or that a threat of force was being made against him. I have reached these conclusions for the following reasons:

a) the physical altercation was initiated by Mr. Midford walking across the room to where Mr. Harris was sitting on the couch;

b) there is no evidence that Mr. Harris used or threatened to use any force against Mr. Midford before Mr. Midford made the first move. Mr. Fay’s testimony that Mr. Harris had not struck or pushed Mr. Midford either before the altercation began, or at any other time that day, was not challenged;

c) as I have already found, Mr. Harris was still seated or in the act of rising when Mr. Midford reached him and put him in the reverse headlock. I find that the physical act Mr. Harris carried out, leaning forward or beginning to rise from his seated position, was in response to the physical act of Mr. Midford, walking across the room; and

d) all of this occurred during an argument between Mr. Midford and Mr. Harris about the accusation that Mr. Harris had stolen liquor and about the volume of the television. There is no evidence that Mr. Harris escalated this argument from a verbal one to a physical one, or that he threatened to do so. [ 90 ] Based on the foregoing facts, it is impossible to find that Mr. Harris was using force, or threatening to use force, against Mr. Midford. Mr. Midford was the one who used force against Mr. Harris, and any application of force by Mr. Harris against Mr. Midford was only in response to Mr. Midford’s assault.

[ 91 ] If Mr. Midford had in fact felt that he was being threatened with the use of force, he would have had many options, other than crossing the room and putting Mr. Harris in a restraining hold. He could have retreated to the bedroom, the bathroom or the hallway. He could have asked Mr. Fay to intervene. The fact that he did none of these things is consistent with the inevitable conclusion that flows from the proven facts: Mr. Midford initiated the physical altercation by walking across the room and then assaulting Mr. Harris. He did not have a subjective belief that Mr.

Harris was using force against him or threatening to do so; and an ordinary person who shared the relevant attributes, experiences and circumstances of Mr. Midford would not have perceived that force was being used against him or that a threat of force was being made against him. Mr. Midford was the aggressor. [ 92 ] Therefore, I find the Crown has disproven beyond a reasonable doubt the first element of self-defence under s. 34(1)(a). C.

Conclusion on the Underlying Offence of Assault [ 93 ] Accordingly, I find that the Crown has proven beyond a reasonable doubt the first element of the offence of unlawful act manslaughter: Mr. Midford did commit the offence of assault against Mr. Harris. D. Second Element of the Prohibited Conduct – Did Mr. Midford’s Assault Cause Mr. Harris’s Death? [ 94 ] The Crown must prove beyond a reasonable doubt that Mr. Midford’s assault of Mr. Harris was a significant contributing cause of Mr. Harris’s death: R v Maybin , 2012 SCC 224 at para. 60 . I find that the Crown has done so. Mr.

Harris’s death resulted from the force of his head hitting the floor of his apartment, which resulted from Mr. Midford releasing the reverse headlock hold he had put on Mr. Harris. As I mentioned earlier, the fact that I could not determine if Mr. Midford caused Mr. Harris’s head to snap back by applying force under Mr. Harris’s chin with his arm, does not affect this conclusion. There was an unbroken causal link between the unlawful application of force and Mr. Harris’s death, and I find that Mr. Midford’s assault caused Mr. Harris’s death. E.

The Fault Element of the Offence of Unlawful Act Manslaughter [ 95 ] The Crown must prove beyond a reasonable doubt that there was an objectively foreseeable risk of bodily harm to Mr. Harris which was neither trivial nor transitory, in the context of Mr. Midford’s assault of Mr. Harris. [ 96 ] As noted above, I have found the following facts:

a) over the one or two hours preceding the physical altercation that resulted in Mr. Harris’s death, he and Mr. Midford were extremely intoxicated and were verbally arguing in raised voices. The mood between them was confrontational;

b) Mr. Midford initiated the physical altercation by walking between three and four meters to reach Mr. Harris;

c) when Mr. Midford reached the couch, Mr. Harris was not yet standing. He was still sitting and leaning forward, or was just starting to rise from his seat;

d) it was the headlock administered by Mr. Midford, and perhaps Mr. Harris’s reaction to that headlock, that brought Mr. Harris to his feet;

e) Mr. Midford pulled Mr. Harris backwards and Mr. Harris pushed Mr. Midford forwards, and they moved together in this way between the couch and coffee table, back to the open area in front between the furniture and the television. Mr. Midford was applying enough pressure around Mr. Harris’s neck, so that Mr. Harris could not get out of the headlock, despite trying to do so;

f) when the two men reached the open area between the television and the furniture, they spun around so that Mr. Midford was facing away from the couch and Mr. Harris was facing away from television. Mr. Midford bent down so that his knees were very low to the floor, then released Mr. Harris from the reverse headlock. Mr. Harris’s bottom and elbows contacted the floor, and then Mr. Harris’s head snapped back and the back of his head hit the floor;

g) Mr. Midford was using a considerable amount of force at this time; and

h) Mr. Harris’s head snapping backwards may have been caused by Mr. Midford using his arm to apply force to the front of Mr. Harris’s neck, thereby forcing it up and back. Alternatively, Mr. Midford may have simply released the reverse headlock restraint hold while Mr. Harris’s center of gravity was moving backwards, after which some combination of gravity and the forces continuing from their violent struggle caused his head to snap back. It might have been a combination of these different causes. Regardless, Mr. Harris’s head hitting the floor was caused by Mr.

Midford’s release of the reverse headlock. [ 97 ] This was a violent and fast-moving altercation, lasting between five and 10 seconds. It occurred between two highly intoxicated men who had been arguing. Mr. Midford used considerable force and restrained Mr. Harris by applying force to a very vulnerable area of his body, namely his neck and head. Defence counsel sought to characterize the end of the altercation as Mr. Midford “placing Mr. Harris on his bottom in a controlled manner” and argued that this was

an act that an objective observer could not conclude would cause any harm to Mr. Harris, let alone the type of harm required to convict. [ 98 ] That characterization is not supported by the evidence. Mr. Midford did not gently lower Mr. Harris’s head to the floor or cradle it in his arms on the way down. In an atmosphere of intoxication-fuelled anger and confrontation, Mr. Midford aggressively initiated a fast, violent altercation and applied considerable force to Mr. Harris’s head and neck. He then released Mr. Harris from his restraint hold, at a time when Mr.

Harris’s head was approximately two or three feet from the floor and his feet were not supporting his body weight. Mr. Harris was in an extremely vulnerable position. It was readily foreseeable in these circumstances that his head could

strike the floor and cause bodily harm that was neither trivial nor transitory. [ 99 ] I find that the Crown has proven beyond a reasonable doubt that in these circumstances there was an objectively foreseeable risk of bodily harm to Mr. Harris, which was neither trivial nor transitory. VI. Conclusion [ 100 ] The Crown has proven beyond a reasonable doubt each essential element of the charged offence, and self-defence has not been proven. I find Scott Gestur Midford guilty of unlawful act manslaughter, contrary to

section 236 of the Criminal Code . Heard on the 21 st , 22 nd and 24 th days of November, 2023. Dated at the City of Calgary, Alberta this 15 th day of December, 2023. C.D. Simard J.C.K.B.A. Appearances: Gianna Argento for the Crown Cory Wilson for the Accused