R. v. John Kavinsky, 2017 ONSC 532

CITATION : R. v. John Kavinsky, 2017 ONSC 532 COURT FILE NO.: 113/15 DATE: 2017/01/20 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) George Christakos for the Crown ) ) - and - ) ) ) JOHN KAVINSKY ) ) ) Ron Ellis for the accused ) HEARD: June 20-24, and June 27, 2016 Leach J. (Orally): REASONS FOR JUDGMENT Introduction [ 1 ] For Mr Shannon Hilton, the celebration of his daughter Hailie’s pending 15 th birthday began with hosting a party at the Hilton family’s home on the evening of December 14, 2014, and ended with his being stabbed repeatedly by one of the party guests.

Fortunately, Mr Hilton survived the incident. [ 2 ] The parties agree that the wounds were inflicted by the accused, John Kavinsky, who is before the court charged with a single count of aggravated assault, contrary to

section 268 of the Criminal Code of Canada, (“the Code”). In particular, s.268(1) of the Code specifies that “Everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.” [ 3 ] It also was formally acknowledged by defence counsel that the underlying circumstances, (described below in more detail), included presence of the essential elements normally necessary and sufficient to make out the offence of aggravated assault. In particular, it was formally acknowledged by the defence, at the outset of trial, that:

a) John Kavinsky intentionally applied force to Shannon Hilton;

b) Mr Hilton did not consent to the force Mr Kavinsky applied; and

c) the force applied by Mr Kavinsky wounded Mr Hilton. [ 4 ] The focus of this trial was instead on the question of whether Mr Kavinsky was acting in self-defence, and the possible application of

section 34 of the Code .

Section 34 – General principles [ 5 ] Given that focus, I think it useful to outline, before turning to the evidence, the provisions of

section 34 and considerations relevant to its application.

[6] The

section codifies the defence of use of force in protecting one’s self or another person, (i.e., thereby including “self-defence”),and reads in its entirety as follows: 34.

(1) A person is not guilty of an offence if (

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

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves (sic) or the other personfrom 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 ofthe 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 offorce; (

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; (

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. (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they arerequired or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act thatconstitutes the offence believes on reasonable grounds that the other person is acting unlawfully. [7] The provisions of what is now

section 34 of the Code came into force on March 11, 2013, as part of Parliament’s effort tooverhaul the self-defence statutory regime by enacting a single unified

section of the Code dealing with defence of a person. Inparticular, as emphasized in R. v. Bengy, 2015 ONCA 397 , [2015] O.J.

No. 2958 (C.A.), at paragraphs 28-29, the test for self-defence was simplified into three basic requirements: i. reasonable belief, addressed by s.34(1)(a); i.e., the accused reasonably must believe that force or threat of force is beingused against him or someone else; ii. defensive purpose, addressed by s.34(1)(b); i.e., the subjective purpose for responding to the threat must be to protectoneself or others; and iii. reasonable response, addressed by s.34(1)(c); i.e., the act committed must be objectively reasonable in the circumstances. [8] When the first two prerequisites are met, the success of the defence will hinge on the question of the reasonableness of theresponsive act.

To inform that inquiry, s.34(2) provides a non-exhaustive list of relevant considerations. None are requirements. Therelevance of any factor, enumerated or not, will be a matter for the trier of fact to determine. [9] Other general principles and considerations relating to the application of

section 34 include the following: • The provisions of

section 34 do not have to be considered unless there is an “air of reality” to a claim of self-defence; i.e., evidencebefore the court on the basis of which a properly instructed jury, acting reasonably, could base an acquittal if it were to believe theevidence to be true. See R v. Osolin, (SCC), [1993] 4 S.C.R. 595 at p. 682; and R. v. Cinous, 2002 SCC 29 ,[2002] 2 S.C.R. 3, at paragraph 47. In making that determination, a trial judge must not weigh evidence, determine credibility, drawinferences, or assess the likelihood of success. See R. v. Kong, 2006 SCC 40 , [2006] 2 S.C.R. 347, adopting the dissentingopinion in R. v. Kong, [2005] A.J. No. 982 (C.A.). •

Section 34 describes a justification which would render the use of force lawful, based on the principle that it is lawful in definedcircumstances to resist force or a threat of force with force; see R. v. Ryan, 2013 SCC 3 , [2013] 1 S.C.R. 14. As the prosecutionmust prove an unlawful act, it accordingly is for the prosecution, (where there is an air of reality to a claim of self-defence), to negativethat defence beyond a reasonable doubt. See R. v.

Cinous, supra, at paragraph 39. • In other words, while self-defence does require evidential support, the defence bears no legal burden of establishing the defence;i.e., the accused is not required to prove that he or she acted in self-defence. The Crown instead bears the burden of establishing, beyonda reasonable doubt, that the defence is not available in the circumstances. In particular, the Crown must prove beyond a reasonable doubtthat the accused does not meet all of the three cumulative and necessary conditions outlined in s.34(1) of the Code.

If any one of thoseconditions is absent, the defence will not be available to the accused. See, for example: R. v. Avril, 2015 ONSC 2158 , [2015]O.J. No. 1675 (S.C.J.), at paragraph 11; R. v. Levy, 2016 NSCA 45 , [2016] N.S.J. No. 211 (C.A.), at paragraph 107; and R. v.Johnson, 2016 ABQB 633 , [2016] A.J. No. 1183 (Q.B.), at paragraph 16.

• It must be borne in mind that a person defending himself or herself against an attack is not expected to weigh to a nicety the exactmeasure of necessary defensive action or the consequences of such action. It accordingly is impermissible to assess an accused’sresponse in that manner. The objective measure of proportionate force in self-defence cases requires a tolerant approach. See R. v.Baxter, (ON CA), [1975] O.J. No. 1053 (C.A.), at paragraph 45; R. v.

Kong, supra, (and in particular, paragraphs 208-209 of the dissenting opinion in the Alberta Court of Appeal, adopted by the Supreme Court of Canada); and R. v. Kraljevic, [2016] O.J.No. 5853 (C.A.), at paragraphs 14-15. • In considering the responsive force used, it is also important to take into account the entire situation, pay sufficient attention to thefactual context and the entire tableau of evidence, and not artificially separate out or slow down the sequence of events; e.g., by viewinga fast-paced event on a frame-by-frame basis. See R. v. Quinn, [2014] O.J. No. 4417 (C.A.), at paragraph 10; and R. v.

Cunha, 2016ONCA 491 , [2016] O.J. No. 3321 (C.A.), at paragraphs 28 and 47.

Evidence – General comments [10] At trial, the Crown presented testimony from the following witnesses: • Shannon Hilton, the complainant; • Melissa Hilton, the complainant’s spouse, who was co-hosting the relevant gathering at the couple’s residence to celebrate thebirthday of their daughter Hailee; • Hailee Hilton, the daughter of Shannon and Melissa Hilton, who was 14 at the time of the incident and 16 at the time of trial; • Isaiah Falkins, (also known as “Isaiah Ballantyne”), formerly a close friend of the Hilton family, who was 18 when he attended therelevant celebration for Hailee’s birthday, and 20 years old at the time of trial; • Martin Romanuk, an officer with the Ontario Provincial Police, who attended at the Hilton property following the stabbing, andparticipated in subsequent follow up investigation efforts that included searches for the knife used by Mr Kavinsky during the stabbing,and the clothing worn by Mr Kavinsky at the time of the stabbing; • Jill Spencer, a forensic identification officer with the Ontario Provincial Police, who participated in the execution of a searchwarrant in relation to Mr Kavinsky’s residence and its surroundings, while documenting and photographing findings; and • Monique Leget, who was Mr Kavinsky’s 17-year-old girlfriend at the time of the events in question, attended the relevant birthdaygathering at the Hilton property, and thereafter accompanied Mr Kavinsky when he returned to his residence, (where she also was stayingat the time), after the stabbing. [11] In addition to subjecting the Crown’s witnesses to cross-examination, defence counsel called Mr Kavinsky as awitness to provide testimony on his own behalf. [12] In the course of the proceeding, I also was presented with the following trial exhibits: • two agreed statements of facts; • an audio recording of a statement provided by Hailee Hinton; • a series of eleven photographs taken at the Hilton property shortly after the stabbing had occurred; • the knife, (variously described as a “folding knife”, “buck knife” and “lockblade knife” by Officers Romanuk and Spencer),admittedly used by Mr Kavinsky to stab Mr Hilton; • CD discs with a video recording of Mr Kavinsky outlining, to the police, after his arrest, the route he claimed to have taken fromthe Hilton property to his Thamesville residence after the stabbing, as well as a video recording of a further and later extended statementmade by Mr Kavinsky to the police while still detained in police custody following his arrest; • a transcript of the latter video recorded statement provided to the police by Mr Kavinsky; • photographs taken outside of Mr Kavinsky’s residence during police execution of a search warrant, the day after Mr Kavinsky’sarrest; • a brief of medical records relating to Mr Hilton’s injuries and treatment; and • a letter written by Mr Kavinsky to Mr Hilton. [13] All but the last item formally were tendered as exhibits by the Crown.

The letter to Mr Hilton, (written by MrKavinsky shortly after the stabbing, while still in police custody following his arrest), formally was tendered as an exhibit by thedefence. [14] I will have more to say about these various witnesses and exhibits during the course of these reasons, but think itappropriate to make some further general comments now, before proceeding with further review of the evidence. [15] First, I think it advisable to note and explain, in more detail, the circumstances in which Mr Kavinsky’s entirestatement to the police, the transcript corresponding to that statement, various aspects of testimony from Mr Kavinsky, and the testimonyof Ms Leget in its entirety, all came to form part of the substantive trial evidence.

In particular:

• When the trial began, and for much of its duration, the parties had not yet agreed on whether and to what extent such evidenceshould be admitted as part of the substantive trial evidence; i.e., the evidence to be considered in my determination of whether or not MrKavinsky should be convicted of the single count of aggravated assault set forth in the indictment. • In that regard, defence counsel indicated a desire to have at least some of the comments made by Mr Kavinsky to the police enteredas trial evidence. In that regard, reliance was placed on authorities such as R. v.

Edgar (2010), 2010 ONCA 529 , 101 O.R. (3d)161 (C.A.), and R. v. Laird, 2015 ONCA 414 , [2015] O.J. No. 3000 (C.A.).

Those decisions emphasize that it is open to a trialjudge to admit, as an exception to the general rule excluding prior consistent statements, evidence of spontaneous out-of-court statementsmade by an accused upon arrest or when first confronted with an accusation, as evidence of the reaction of the accused to the accusationand as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination. • Crown counsel, on the other hand, indicated his intention to challenge the admissibility of such “previous consistent statement”evidence on the basis that not all of the indicated and necessary preconditions for application of the “Edgar exception” relied upon by thedefence were satisfied in the underlying circumstances.

In particular, questions were raised as to whether the statements in questionreally were made “when the accused was arrested” or “first accused of committing a crime”, and whether they were truly “spontaneous”. • In the result, and for reasons of trial efficiency, (as the relevant prior statements by Mr Kavinsky and the circumstances surroundingtheir making were interspersed with other relevant and admissible evidence), matters proceeded by way of an intermittent voir direduring the course of the overall trial.

In particular, that occurred after the Crown had completed its case, during the leading of evidenceby the defence, and the testimony of Mr Kavinsky in particular. That was done with a view to my eventually making a decision, (afterconclusion of all the voir dire evidence and receipt of counsel submissions in that regard), concerning the extent to which evidence fromthe voir dire would be admitted into the trial proper.

The voir dire included testimony not only from the accused but also testimonyfrom Ms Leget, (who initially was a contemplated defence witness, but ultimately was called as a witness by the Crown), as well as thestatements given by Mr Kavinsky to the police. • However, before I was called upon to make my ruling concerning the issues which prompted the voir dire, the parties formallyindicated their mutual agreement that all evidence received by me during the voir dire, without exception, was to be admitted on consentinto the trial proper for all purposes. [16] As a second general observation, I note that, although most of the evidence at trial emanated from the Crownwitnesses, I have in mind throughout my entire reasons and analysis that proper determination of cases is not achieved by simplycounting witnesses, as quality of evidence may very well prevail over quantity.

As the trier of fact, I therefore am entitled, for example,to prefer the testimony of just one witness, rather than a number of others, depending on my assessment of the evidence. [17] Next, I also have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burdenof proof upon the Crown. In particular, according to the constitutional guarantee in s.11(

d) of the Charter of Rights, Mr Kavinsky ispresumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless anduntil the Crown establishes his guilt with respect to the alleged offence beyond a reasonable doubt. That is a heavy burden and, inrelation to elements of the charges against Mr Kavinsky that are not admitted, as well as disproving elements of the

section 34 defenceraised by Mr Kavinsky, (as noted above), never shifts. In particular, Mr Kavinsky has no obligation whatsoever to establish hisinnocence. [18] In that regard, although Mr Kavinsky chose to testify on his own behalf in this case, I also am mindful of theprinciples underscored by R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasizedthat reasonable doubt may arise in various ways; ways that are not restricted to acceptance of exculpatory testimony given by anaccused.

For example, in this particular case: • It would not be appropriate to decide this case by simply determining whether I accept or reject the testimony of Mr Kavinsky,including his assertions relating to necessary elements of the

section 34 defence. • I instead have to consider all the evidence, and decide whether I have been satisfied beyond a reasonable doubt that all the essentialelements of the crime charged have been established, and that the Crown has disproven at least one of the elements required for asuccessful

section 34 defence. • Certainly, if I believe and accept Mr Kavinsky’s testimony, then I obviously must acquit him. • However, even if I do not believe and accept Mr Kavinsky’s testimony, I must still acquit him of the crime charged if his testimonyraises a reasonable doubt in my mind; e.g., as to whether the essential elements of the offence have been established, and as to whetherthe Crown has disproven any elements required for a successful

section 34 defence. • Moreover, even if I do not believe Mr Kavinsky’s testimony, and his testimony does not leave me with a reasonable doubt, I muststill ask myself whether, having regard to the evidence I do accept, and looking at the case in its totality, I am convinced that he is guiltybeyond a reasonable doubt; i.e., because the essential elements of the offence have been established beyond a reasonable doubt, and theCrown has disproven, beyond a reasonable doubt, at least one of the elements required for a successful

section 34 defence. [19] A reasonable doubt is not an imaginary or frivolous doubt. Nor is it a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense, logically derived from the evidence or absence of evidence. See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at paragraph 39. [20] With the above preliminary observations, I turn now to a more detailed review of the underlying evidence. Evidence – General facts [21] In that regard, while I will have more to say about particular evidence and factual findings in the course of

addressing various individual issues, the following findings, (based primarily on party agreement, matters in respect of which there was little contradiction and the undeniable physical evidence, but in some respects my preference for the testimony of certain witnesses over others for the reasons outlined below), will provide a context for those more detailed considerations: • At all material times, Shannon Hilton and Melissa Hilton lived with their children Hailee and Hunter, (a year younger than Hailee), at a large two acre semi-rural property located on the outskirts of the Town of Strathroy, and more particularly identified by the municipal address specified in paragraph 3 of Exhibit 1.

The main entrance to the property is a long drive that passes through an opening in a tall extended fence, and heads straight on towards the longer side of a large, serviced and single-storied rectangular building; a building subdivided into numerous rooms intended to serve as garage, shop and office space. (Mrs Hilton repeatedly referred to it as a “five car garage”, and I will refer to it hereafter as “the garage” or “garage building”.) The side of that garage building facing the drive has two vehicle or “bay” doors, (one near each end of the building), two pedestrian doors, and a number of windows.

In addition to a large tree, there is an extended paved area in front of the garage building, through which the drive bends left towards the Hilton’s principal residence. • In mid-December of 2014, Mr and Mrs Hilton had just completed principal construction of an addition to the garage building, (leaving various construction materials and a sizeable temporary mound of earth in front of the building), and decided to use that opportunity to host a party celebrating Hailee’s pending 15 th birthday.

Hailee assumed primary responsibility for organizing the party, which was scheduled for the evening of December 13, 2014, (although Hailee’s actual birthday would occur some two weeks later). The area in and around the addition to the garage building was intended to be the main area in which people would gather and socialize. The contemplated attendees were Hailee’s school friends, who were mostly of a similar age; i.e., 14 or 15, although Hailee’s friend Monique Leget was 17 and also invited.

Despite the relatively young age of the contemplated party guests, consumption of alcohol at the party also was contemplated, and not frowned upon or discouraged by Mr or Mrs Hilton. Guests were to bring their own alcohol, if desired. • In the result, the party went ahead on December 13, 2014, starting at approximately 8pm or 9pm, and carried over into the early hours of the following morning. Although Mr and Mrs Hilton were both at the property for the duration of the event, Mr Hilton candidly acknowledged that he really played no role in its organization or supervision.

He instead spent most of his time on the rear and side deck areas adjacent to his house, (from which most of the property was visible), sitting and talking with a number of adult friends who had brought their children to the party, and occasionally entering the house kitchen and a hot tub. He generally had no involvement with Hailee’s guests apart from saying an occasional “hello”. Active adult monitoring and supervision of the party was instead left primarily to Mrs Hilton.

She regarded herself as being on “kid duty”, deliberately refrained from consuming alcohol, and “hovered” over the party to monitor the situation, diffuse tensions and arguments, and ensure that guests were fed. • As noted above, the party had been intended primarily for Hailee’s 14-15 year old school friends. Moreover, Hailee and her friends were told that no one over the age of 18 was to attend the party. However, a number of the invited guests brought their older boyfriends to the party, and Mrs Hilton permitted them to stay so long as they complied with her rules.

That included Mr Kavinsky, (Monique Leget’s boyfriend), who was 21 at the time and drove his own vehicle to the party. • The total number of guests attending the party, over the course of the evening, ranged from at least 25 to approximately 50. • Guests at the party brought their own alcohol. As many of Hailee’s party guests were her age, they did not drive and instead arrived at the party on foot or through rides provided by others.

However, some guests, (although not many), did drive themselves to the party, and Mrs Hilton had a standing and firm rule, known to Mr Hilton and made known to guests, that no one attending the party would be permitted to drink and drive. Mrs Hilton herself announced and enforced that rule by personally approaching each person who drove to the party, immediately upon the person’s arrival.

In particular, after explaining her rule, Mrs Hilton would either take the driver’s car keys herself, or ensure that the keys were turned over to someone else who could be trusted to ensure that the keys would not be returned to anyone who had been drinking. That was done on the express understanding, conveyed repeatedly to all guests at the party, that anyone needing a ride would receive one; e.g., by the provision of taxis paid for by Mrs Hilton if and as necessary.

It was also made clear that anyone not willing to comply with Mrs Hilton’s rule about drinking and driving would not be welcome at the party. • The party rule against drinking and driving was enforced in relation to the accused upon his arrival at the party, (with Ms Leget and Mr Kavinsky’s friend “Alan”), when Mr Kavinsky parked his car in the paved area in front of the garage building, near to the tree in front of the pedestrian door entrance being used for the party. In particular, Mrs Hilton immediately approached Mr Kavinsky and explained her rule prohibiting drinking and driving.

She then ensured and confirmed that Mr Kavinsky willingly had surrendered his car keys to one of his friends and passengers, (i.e., Alan), who was “going to make sure that Johnny didn’t drive”. In his testimony, Mr Kavinsky confirmed that account, adding that he knew and understood that agreed compliance with “the rule not to drink and drive” was a necessary condition for attendance at the party, that he gave his keys to his friend Alan because of that rule, and that he gave Mrs Hilton his word that he would not drink and drive.

However, Mr Kavinsky also testified that he actually did not intend to take the rule seriously, and that he surrendered his keys primarily to get Mrs Hilton to “shut up” and leave him alone before he went in to the party. He wanted to “get rid” of the issue, so he could “go and do [his] thing”.

He admittedly told Mrs Hilton “what she needed to hear to be part of the party”, while still intending to drive home if he felt like driving. • Mr Falkins and Mr Kavinsky met and interacted for the first time during the early hours of the gathering, and Mr Falkins had positive things to say about Mr Kavinsky’s behavior during that interaction.

In particular, Mr Falkins recalled that, at that stage of the evening, Mr Kavinsky was consuming a drink while they were talking, (although Mr Falkins fairly indicated he did not know what substance it was), but did not seem drunk “by any means” and “wasn’t anything to be worried about”.

Having said that, Mr Falkins also recalled that, while Mr Falkins and Mr Kavinsky were talking in the presence of others, Mr Kavinsky pulled a knife from his pocket and opened it, before he then used it, uninvited, to “non-chalantly” stir the drink Mr Falkins was holding; a drink consisting only of Orange Crush soda that did not need stirring. (Mr Kavinsky testified that he could not remember the incident, but also did not deny that it happened.) Mr Falkins described the knife as black, but could not recall if it had any other colouring on it.

He did recall that it had a knob on the end, used to make the blade “flip upward”. Although Mr Falkins ascribed Mr Kavinsky’s behavior with the knife to “boys being boys” and “just one of those things”, it did seem to him that Mr Kavinsky was “showing off” with it. Mr Kavinsky testified that he did not remember those particular events recalled by Mr Falkins, but also did not deny that they happened. I accept that they did, despite my misgivings about other aspects of Mr Falkins’ testimony, (for reasons outlined below). In particular, in relation to Mr Falkins seeing

Mr Kavinsky produce and use the knife well before the stabbing, Mr Falkins was recalling events that took place during the early stages of the party, before the further alcohol consumption and confusion that took place later.

Moreover, Mr Falkins’ account of seeing Mr Kavinsky produce and use the knife earlier that evening explains how Mr Falkins was able to provide an accurate description of the knife later used by Mr Kavinsky to stab Mr Hilton, before it was shown to Mr Falkins at trial, even though Mr Falkins and Mr Kavinsky had not met before, and there was no credible evidence or suggestion that Mr Falkins or anyone else at the party, (other than Mr Kavinsky), saw the knife during or immediately after the stabbing before it was taken into police custody. (As noted below, Hailee Hilton claimed to have seen the knife the day after the stabbing, but I find, for reasons I will indicate, that such a sighting simply could not have happened as Hailee says it did.) • As the party continued, many of the young guests became very intoxicated.

Some were taken home by their parents. Throughout the course of the party, taxis also were called to the property to provide rides home. A number of departing guests were asked to leave by Mrs Hilton, who felt obliged to “kick them out”. One of those guests was a friend of Mr Kavinsky named “Grant”. In that regard, Mrs Hilton candidly acknowledged, (and Mr Kavinsky confirmed), that Mr Kavinsky personally helped her with ensuring Grant’s departure.

Moreover, up until the time of the later confrontation between the accused and Mrs and Mr Hilton, described below, Mrs Hilton felt that the accused was intoxicated but otherwise quiet and polite; i.e., a “nice kid” who kept to himself and generally presented no concerns warranting her attention, in contrast to other guests who were causing problems. • At some point, Mr Kavinsky then left the party without his vehicle, and Mrs Hilton knew he had done so.

There was some uncertainty and disagreement in the testimony as to when and how that happened; e.g., as to whether Mr Kavinsky left voluntarily in the same cab taken by his friends Grant and Alan, whether he may have walked away from the property on foot, and whether or not Ms Leget also left the party for a time with Mr Kavinsky. However, I think little or nothing turns on such matters. There was no dispute that Mr Kavinsky initially went away from the Hilton property at some point, leaving his vehicle behind.

His doing so presented no concerns to Mrs Hilton, as it complied with her rule against party guests drinking and driving. • However, at approximately 3:30am to 4:00am, (as the party was ending and the only party guests remaining either intended to sleep over at the Hilton residence, or lived within walking distance), Mr Kavinsky admittedly returned to the Hilton property with the intention of retrieving his car.

He says he returned on foot. (At trial, Mr Kavinsky initially could not recall where he had gone in the meantime, but later said he probably had come from the house of his friend Alan.) Although Mr Kavinsky did not have his principal set of car keys, (as they were still in Alan’s possession), he intended to use a spare set of keys he always kept hidden underneath his car by way of a tied magnet. • Whether or not Mr Kavinsky went back into the garage, after returning to the property and before his confrontation with Mrs and Mr Hilton, was not entirely clear.

Mr Kavinsky testified that he remained outside, retrieving his spare car keys, while Ms Leget briefly went back into the building to say goodbye. Mr Falkins testified that he saw Mr Kavinsky quickly enter and exit the building, walking ahead of Ms Leget such that she effectively was left behind to speak with Mr Falkins.

Again, I think little turns on such matters, except perhaps that all the witnesses, including Ms Leget, seemed to agree that she was inside the garage without Mr Kavinsky around the time of the altercation. • Shortly thereafter, Mrs Hilton was outside the garage, encouraging the guests who were staying to go to the house and those who were leaving to walk home, when she noticed that Mr Kavinsky had returned to the property, and was demonstrating an intention to leave in his vehicle. In particular, Mrs Hilton saw Mr Kavinsky at his vehicle, with car keys.

That prompted immediate intervention by Mrs Hilton, who approached Mr Kavinsky, reminded him forcefully that drinking and driving would not be allowed, and then engaged in efforts to prevent Mr Kavinsky from driving. My further findings of what was said and done in that regard are outlined in detail below. For now, I will simply say that, acting on her own, Mrs Hilton was unable to ensure that Mr Kavinsky definitely would not be driving, which led in turn to Mr Hilton’s involvement. • In that regard, Mr Hilton was not present during Mrs Hilton’s initial efforts to prevent Mr Kavinsky from leaving in his car.

In particular, as it was towards the end of the evening, and the party was winding down, Mr Hilton had instead been preparing for bed, back at the house. However, he then heard a loud discussion and “commotion” from the area in front of the garage building, (approximately 40-60 feet away), including his wife’s raised voice indicating she could not “deal with this anymore” and needed help.

Wearing a shirt and trousers, but without donning a jacket, Mr Hilton therefore walked over to the area to see what was happening, and observed his wife standing in front of the garage area “with a couple of the kids”, including Mr Kavinsky. • Mrs Hilton provided her husband with her perspective on what was happening, saying words to the effect of “Johnny thinks he’s going to drive” and “Take care of this”.

Mr Hilton then joined in the discussion, arguing with Mr Kavinsky about his determination to drink and drive, before the two men then engaged in a progressively physical altercation. (My further findings concerning their verbal and physical interactions are outlined in detail below.) During the course of the altercation, Mrs Hilton briefly went inside the garage to summon assistance from other male guests. • By the time Mr Hilton and Mr Kavinsky physically separated, Mr Kavinsky had caused the following injuries to Mr Hilton: o a metacarpal fracture to the right ring finger; o a complete laceration to the left wrist ECU tendon; o two stab wounds to the left tricep; o one stab wound to the left forearm; o a stab wound to the anterior chest wall; and o a stab wound to the liver that caused a liver laceration, requiring an exploratory laparotomy; i.e., a surgical operation where the abdomen is opened and the abdominal organs are examined for injury or disease.

• After Mr Hilton and Mr Kavinsky physically separated, Mr Hilton stepped back and was advised by someone in the crowd that he was visibly bleeding. Only then did Mr Hilton realize that he had been stabbed rather than punched. He reacted with surprise and anger, saying words to the effect of “You stabbed me!” and “I’m going to kill you!” A visibly bloody Mr Hilton then proceeded just inside the garage building, at the same time as Mrs Hilton was heading back outside, (after shouting to the “boys” inside for help to prevent “Johnny” from driving).

Mr Hilton then kicked open the locked door to another interior room in the garage, in order to retrieve a broom to use as a weapon against Mr Kavinsky. In the meantime, Mr Kavinsky had moved quickly towards the pile of dirt and his car, calling for Ms Leget. • Once he had retrieved the broom from the garage, Mr Hilton immediately came back out of the building to chase and hit Mr Kavinsky with it a number of times, before Mr Hilton then “blacked out” and collapsed owing to severe loss of blood.

In particular, Mr Hilton dropped the broom in the drive and fell back into the wall of the garage, where he was cared for by his son Hunter and Mr Falkins. Mr Falkins then raised Mr Hilton’s bloody shirt to reveal the wounds to Mr Hilton’s torso, making it visibly clear to Mrs Hilton that her husband had been stabbed. Shortly thereafter, Mr Falkins led Mr Hilton, who was struggling to retain consciousness, back into the main party room of the garage to await the arrival of paramedics. • At that point, a shocked Mrs Hilton then turned to confront Mr Kavinsky about what he had done.

She repeatedly yelled and swore at him, saying words to the effect of “You fucking stabbed somebody?”, “You stabbed him?”, “Are you fucking kidding me?”, and “Who stabs somebody’s dad?” While yelling, Mrs Hilton also rushed at Mr Kavinsky, punching him forcefully in the face, and knocking him back into the nearby mound of dirt. (Mrs Hilton candidly said that she was not entirely sure if she actually managed to punch Mr Kavinsky in the face.

However, she also said that definitely was her intention, that she raised her hand and came at Mr Kavinsky’s face with a “full force” punching movement, and that she hoped that she had succeeded in striking him in the face. I find that she did succeed, as confirmed by Mr Kavinsky’s indication that Mrs Hilton did hit or slap him in the face, knocking him backwards into the pile of dirt, and the injuries to Mr Kavinsky’s face noted and described during the course of his recorded statement to the police. • Within seconds, Mr Kavinsky rose from the dirt pile and admittedly began repeatedly yelling “I’m fifteen!

I’m only fifteen!” Mr Kavinsky acknowledges that was obviously untrue and a “silly” thing to suggest, (as he clearly was driving and had a full grown beard). Mrs Hilton says she also knew at the time Mr Kavinsky’s claim of being 15 was untrue. However, Mr Kavinsky says he was in a panic, and tried to suggest he was within what he understood to be the general young age limit for the party, in order to “get her [Mrs Hilton] off” of him, and because he thought it less likely that she and others at the party would attack or hit him for what he had done if they thought he was only fifteen.

Although Hailee and Mr Falkins claimed that Mr Kavinsky also was screaming that he was the one who had been stabbed, (which was not true, but a comment which Mr Falkins said prompted him to check Mr Hilton’s hands for weapons), Mr Kavinsky could not recall making such a statement, (although he said it might have been possible), and Mrs Hilton made no mention of such a statement in her detailed testimony. I do not accept that Mr Kavinsky made such an additional statement after the stabbing.

In particular, for the reasons outlined below, I believe Mrs Hilton was a more credible and reliable witness than Hailee, Mr Falkins and Mr Kavinsky, and feel certain that Mrs Hilton would have recalled and mentioned Mr Kavinsky screaming such a statement had it happened. • At that point, Mr Kavinsky was still holding his car keys in his hand. He proceeded to his vehicle, calling loudly again for Monique Leget, (who was not outside the garage at the time of the stabbing), to come and “get the fuck in the car” as he was leaving.

Ms Leget did so, while visibly upset and crying, and repeatedly yelling at Mr Kavinsky to ask what he had done; e.g., repeatedly saying, with apparent incredulity, “You stabbed somebody?” Mr Kavinsky then started the ignition and drove away in his vehicle with Ms Leget. • Mr Kavinsky and Ms Leget then travelled directly from the Hilton property in Strathroy to a large rural property near Thamesville, in the Chatham-Kent area, (and identified by a specific municipal address at trial), where Mr Kavinsky lived with his parents. (It should be noted that Mr Kavinsky and his father apparently have the same first and last names.

In these reasons, I will continue to use “Mr Kavinsky” when referring to the accused, and refer to Mr Kavinsky Senior as the “father”.) At the time of the incident, Ms Leget also was living at the Kavinsky property. The journey from the Hilton property to the Kavinsky property took approximately 45 minutes to an hour. • When testifying at trial, Mr Kavinsky and Ms Leget gave significantly different accounts of what happened during the couple’s drive back to the Kavinsky property, and after their arrival there.

In that regard: o Mr Kavinsky provided few details of what he and Ms Leget may have discussed in the car on their way to the Kavinsky property, emphasizing that they were both crying, and he generally was just focused on trying to calm her down. He denied any discussion, during the drive, of a strategy concerning what should be done or said in the circumstances.

According to Mr Kavinsky, when the couple arrived at the Kavinsky residence, he was crying, upset and in a panic, with his clothes covered in blood, the knife used to stab Mr Hilton in his pants pocket, and asking his father for advice as to whether he should “run away” or turn himself in to the authorities. Mr Kavinsky says his father was crying and upset as well, but instructed to him to calm down, and assured him that it would be “all right”.

Mr Kavinsky says he then handed his bloody clothes and the knife to his father, who removed and dealt with them in a manner unknown to Mr Kavinsky as he proceeded to take a shower and change into new clothing before the police arrived at the property shortly thereafter. Mr Kavinsky denied having any conversation with his father about strategy, and what should be said to the police.

Mr Kavinsky also says Ms Leget remained with him the entire time, including standing in the bathroom with him as he was having his shower. o According to Ms Leget, she and Mr Kavinsky were both hysterically crying and “freaking out” during their drive back to Thamesville, and had a very intense, detailed and sustained conversation which lasted “pretty much the whole” way home. In that regard, Ms Leget says Mr Kavinsky began by repeatedly asking her what he should do in the circumstances.

She answered with repeated indications that she had no idea, apart from wanting to “go home”, where Mr Kavinsky could speak to his father or both parents. There was also talk of possibly “running away”. As Ms Leget was angry and confused about what had happened, she also then yelled at Mr Kavinsky, asking him how he could stab her friend’s father.

She says Mr Kavinsky’s responses included claims that Mr Hilton was “hitting him in the head up against the garage”. (I note in passing that the particular comment Ms Leget attributed to Mr Kavinsky does not make it clear whether Mr Kavinsky was saying Mr Hilton hit him in the head while the two men were located up against the garage, or whether Mr

Hilton hit Mr Kavinsky’s head up against the garage. However, Ms Leget seems to have interpreted it as the latter, as she responded by indicating she did not believe Mr Kavinsky’s account, as she “did not hear anything of the sort from inside the garage”, where she was located at the time of the incident.) Ms Leget readily and candidly indicated that, after arriving at the Kavinsky property, she and Mr Kavinsky did not remain together for the entire time before the subsequent arrival of the police.

For example, she says she and Mr Kavinsky each took a shower, and there also was a period when she was alone in the bathroom playing music on her computer, and trying to calm herself down. However, she had a firm recollection of Mr Kavinsky pacing nervously back and forth, and speaking with his father about what should be done in the circumstances. She repeatedly acknowledged without hesitation that she did not hear and/or recall all of that conversation. However, she had a definite recollection of Mr Kavinsky talking with his father about “hiding the evidence”.

In particular, she says Mr Kavinsky’s father was very concerned about “hiding the knife and the clothes”, that Mr Kavinsky and his father both expressly agreed the items should be hidden, and that Mr Kavinsky then gave the knife and clothes to his father for that purpose. Moreover, she says there also was a discussion between her, Mr Kavinsky and his father about what should be said to the police in order to “protect Johnny”. She admits wanting to assist with such efforts at the time, as Mr Kavinsky was her boyfriend. She did not want him arrested, and feared that he might go to prison for a long time.

She therefore went along with the “coaching” she received from Mr Kavinsky and his father in that regard. She says all of them collectively discussed what should be “added” to their comments, in order to “make up a story” to protect Mr Kavinsky, as none of them wanted him to go to jail. o I believe and accept Ms Leget’s account of what transpired after she and Mr Kavinsky returned to the Kavinsky property. My reasons for doing so include the matters, outlined below, concerning my general impression of the witnesses.

However, I also think it incredible, in the circumstances, that Mr Kavinsky and Ms Leget had no serious discussion, during the 45-60 minute drive immediately after the stabbing, about their situation and what should happen next. Similarly, I think it incredible that Mr Kavinsky would have turned the knife and bloody clothes over to his father for removal without the two having some form of discussion about why that was being done, and in particular, about the father taking measures to dispose of them. No other rational explanation for giving the items to the father for removal was offered or suggested.

Moreover, although Mr Kavinsky initially testified that conversation with his father was limited to a discussion of whether he should run away or turn himself in, and that they “weren’t talking about hiding the evidence or anything like that”, I thought it quite revealing that Mr Kavinsky, during testimony following that of Ms Leget, let slip that he “obviously knew why” his bloody clothing and the knife were being given to his father, and admittedly thought that his father would hide the items, although they “never conversated (sic) about where he was going to hide it or anything like that ”.

Even then, I note that, in his statement to the police, Mr Kavinsky eventually revealed that he actually did know that his father had taken the bloody clothes outside, and that the knife was hidden in the outside can where his family kept ash from the fireplace, acknowledging that he and his father had spoken about that.

Moreover, although Mr Kavinsky initially suggested that he somehow may have been allowed to speak to his father while in custody at the police station, while both were being questioned, (which I think very unlikely in any event), Mr Kavinsky eventually conceded he actually did not think that had happened. In my view, that in turn means that Mr Kavinsky and his father must have discussed hiding of the knife while still at the Kavinsky property, before the police arrived and arrested Mr Kavinsky.

For all these reasons, I find Mr Kavinsky was indeed complicit in efforts to hide or destroy relevant evidence. • The police arrived at the Kavinsky property later that same morning, (i.e., on Sunday, December 14, 2014), and arrested Mr Kavinsky at 7:25am; i.e., approximately 3-4 hours after the stabbing, and approximately 2-3 hours after Mr Kavinsky and Ms Leget had returned to the Kavinsky property.

Mr Kavinsky was taken into custody, and returned to the police station where he was questioned. (Ms Leget testified, and I accept, that she and Mr Kavinsky’s father also were taken to the police station for separate questioning, albeit in a police vehicle different from the one in which Mr Kavinsky travelled, as he was handcuffed and formally in custody.) • Police questioning of Mr Kavinsky resulted in a series of statements to the police that were recorded on video, and eventually made exhibits at trial. • Mr Kavinsky’s first recorded statement to the police began at 10:11am on December 14, 2014; i.e., more than six hours after the stabbing, and more than 2½ hours after Mr Kavinsky’s arrest.

In the course of that statement, (described at trial as the “map route” video, and marked as Exhibit 9), Mr Kavinsky was questioned repeatedly about the knife he had used to stab Mr Hilton, and what had been done with it. In particular, the recording began with confirmation that Mr Kavinsky had told the police the knife was thrown from his vehicle during the drive from the Hiltons to his home. He was then asked to confirm the route he had travelled, (with the assistance of a county map), and the approximate location of where the knife might have been thrown from the car.

In response, Mr Kavinsky reviewed and confirmed the route he had taken, and that he had thrown the knife out the driver’s side of his vehicle. However, in response to continued questioning, and requests for an approximate location of where disposal of the knife had happened so the police could narrow their search efforts, Mr Kavinsky repeatedly claimed he had “no idea”, could not say whether that had happened early in the drive or later, and “really couldn’t tell” the police where the knife might be.

He repeatedly emphasized that he wanted “to do anything” he could to help the police, was “trying to participate”, and wished he could help, but could not do so for several proffered reasons; e.g., because the roads “all look the same”; because he had been “too in the moment”, “in shock”, and “not thinking about it”; and because he had been “really emotional because Monique was angry with him the whole way home”. During his answers, Mr Kavinsky admittedly lied repeatedly to the police. At trial, Mr Kavinsky initially testified that he did so because he did not want to “get into trouble”.

However, he subsequently indicated that he lied to the police because he did not want his father to get into any trouble, emphasizing that his “instant reaction” was to protect his father. • In any event, acting on Mr Kavinsky’s initial false indications of how and where he had disposed of the knife used in the stabbing, those investigating the incident dispatched Officer Romanuk, on the afternoon of December 14, 2014, to search for the discarded weapon along the route said to have been taken by Mr Kavinsky and Ms Leget from the Hilton property in Strathroy to the Kavinsky residence in Thamesville.

Officer Romanuk searched the route for hours, but was unable to locate the knife. • Recorded police questioning of Mr Kavinsky began again at 6:53pm that same day; i.e., approximately 15 hours after the stabbing, and more than 11 hours after Mr Kavinsky’s arrest. Matters addressed during that questioning included Mr Kavinsky’s account of events leading to the altercation, the altercation itself, and what had been done with Mr Kavinsky’s knife and bloody clothes.

As addressed elsewhere in these reasons, Mr Kavinsky made numerous statements during the course of that lengthy period of questioning, (which concluded at approximately 8:21pm), that were consistent and inconsistent with his testimony at trial. • In the course of that subsequent police questioning, it also was suggested to Mr Kavinsky that he write a note or letter to Mr

Hilton, and he did so. The full text of the relevant letter can be found in Exhibit 8. However, it contains numerous expressions ofapology and regret, as well as concern for Mr Hilton and his family.

It also contains comments indicating that Mr Kavinsky was scaredand did not want the incident to happen, along with indications that he was “very ashamed” of his behavior and felt “absolutelyworthless” for doing what he had done. • The following day, (i.e., December 15, 2014), members of the Middlesex Crime Unit, the West Region Forensic IdentificationUnit, (including Officer Spencer), and additional police assigned to secure the scene and provide assistance, (including OfficerRomanuk), attended at the Kavinsky property and residence in Chatham-Kent to execute a search warrant.

Specific items of interestwere the knife used by Mr Kavinsky in the stabbing, as well as blood-stained clothing, including specified articles of described clothingMr Kavinsky was thought to have been wearing at the time of the stabbing. In the course of executing the search warrant, OfficerRomanuk was tasked with following up on information obtained by the police, indicating that the knife used in the stabbing may havebeen discarded in a fire pit or pail of ash somewhere in the exterior areas of the property.

Officer Romanuk then located a pail, on theproperty, which was half-filled with wood ash from a fireplace. He toppled it over, sifted through the ash, and discovered the knifeadmittedly used by Mr Kavinsky to stab Mr Hilton. That was drawn to the attention of others, including Officer Spencer, whophotographed the scene, and then seized the knife. It seems the clothes were never located.

Evidence – General witness assessment [22] Before proceeding with my substantive analysis, (in the course of which I will be addressing further contentiousand contradictory aspects of the testimony presented at trial), I think it appropriate to comment on certain general impressions of thevarious trial witnesses and their respective testimony. [23] In that regard, dealing first with the witnesses called by Crown counsel: • Officers Romanuk and Spencer gave their testimony in an entirely dispassionate, non-partisan and direct manner.

Their respectivememories of events and observations were refreshed and buttressed by their reference to contemporaneous or near contemporaneousnotes, and the photographic exhibits. Their testimony was not seriously challenged or undermined by cross-examination, and in my viewthere was no apparent reason to question their credibility and reliability. • Shannon Hilton’s testimony was soft-spoken, calm, direct, spontaneous, consistent and fair.

In particular, it seemed to me that hemade no effort to minimize or excuse some of his own possibly questionable behavior on the evening in question; e.g., his effectivedelegation of most if not all responsibility for organization and supervision of the party to others, his own alcohol consumption, hisindication that he probably pushed Mr Kavinsky first, and his own violent reaction, threats and behavior after realizing that he had beenstabbed.

Nor was he inclined to attribute misconduct to Mr Kavinsky, (such as resort to the first hit, or a particular number of hitsinflicted by Mr Kavinsky), when he admittedly was not sure of the correct answer. For all these reasons, Mr Hilton seemed very credibleto me. As for Mr Hilton’s reliability, I am mindful of his acknowledged consumption of alcohol before relevant events, and thedebilitating effects of his serious injuries. The latter certainly seemed to have clouded his memory of post-stabbing events.

However,Mr Hilton emphasized that his alcohol consumption was not to the point where it impaired his recollection, and he was quite candid andspecific in his indications of what he did and did not know or observe, (e.g., because he was not involved, not present or not payingattention), what he was and was not able to observe, (e.g., the knife used by Mr Kavinsky when the two men were grappling with eachother), and what he simply could and could not recall. That general candour reinforced an impression of general reliability in relation towhat Mr Hilton said he did observe and could remember.

It also seemed to me that Mr Hilton’s recollection of what happenedimmediately before and during his physical contact with Mr Kavinsky inherently had heightened focus for him owing to its traumaticnature, and the reality that his interaction with others in and around the scene of the stabbing was somewhat limited and isolated to theincident involving Mr Kavinsky. In my view, cross-examination of Mr Hilton did not shake his recollection of events, or expose anysignificant inconsistencies.

On balance, I therefore found Mr Hilton’s testimony about what he was able to recall both credible andreliable. • Hailee Hilton and Melissa Hilton were inherently loyal to Mr Hilton, and both understandably were upset by the serious injuriesinflicted on their father and husband, respectively. Similarly, at the time of the party, Mr Falkins was a close family friend of theHiltons, but apparently had never met the accused before the evening of the party.

The relationship of Mrs Hilton, Hailee and MrFalkins to Mr Hilton arguably could provide a motivation to fabricate evidence to exact retribution against Mr Kavinsky. However, ourappellate courts repeatedly have warned against the dangers of assuming that a witness will be untruthful solely on the basis of therelationship between that witness and the complainant (or the accused). The testimony of such a witness must instead be assessed in lightof all the evidence, and in light of common sense and contextual probabilities. See, for example: R. v.

Murray (1997), (ON CA), 115 C.C.C. (3d) 225 (Ont.C.A.), at paragraph 8; and R. v. Laboucan, 2010 SCC 12 , [2010] 1 S.C.R. 397, atparagraph 11. • In her testimony, and the course of cross-examination by defence counsel in particular, Hailee Hilton nevertheless adopted a tone,demeanour and manner of response that struck me as combative, argumentative, and partisan. She emphasized that she had seen her“strong father stick up for himself and try to stay alive”.

She seemed reluctant to provide evidence, address issues and acknowledgeinaccuracies, inconsistencies or certain events, (even events acknowledged by her parents), when doing so might portray her father ormother in a negative or violent light.

For example, Hailee seemed inclined to minimize conduct of her father; e.g., initially claiming attrial that he had retrieved the broom from an already open area in the garage, and denying that her father had kicked open a door,whereas the photographic evidence confirms other accounts – including Hailee’s own statement to the police hours after the incident -that a bleeding Mr Hilton had kicked open a door in the garage.

Similarly, Hailee attempted to dismiss obvious inconsistencies betweenher earlier statements to the police and her testimony at trial concerning her father’s conduct, (e.g., her earlier statement to the policeabout her father “beating the shit” out of Mr Kavinsky with a broom), on the basis such earlier comments had simply been “panicked” or“drunken” inaccuracies or “overstatements” on the night in question.

When asked whether she had seen her mother punch Mr Kavinskyin the face and knock him into the mound of dirt, Hailee was emphatic that those events “absolutely never happened”, when Mrs Hiltonherself acknowledged her conduct in that regard. Conversely, Hailee seemed eager to offer answers and more expansive commentsattributing various forms of misconduct to Mr Kavinsky that to me seemed at least exaggerated, if not fabricated. For example, sheemphasized that Mr Kavinsky frequently smoked marihuana, was doing so throughout the party, and circulated around the party freely

handing out marihuana joints to “everyone”; an assertion that seems inherently implausible to me for several reasons, including Mr Kavinsky’s financial self-interest and apparently limited familiarity with many at the party.

Similarly, Hailee claimed to have seen Mr Kavinsky consume an entire 26 oz bottle of alcohol while at the party, which in my view likely would have rendered Mr Kavinsky not just drunk and unable to walk well, as Hailee alleged, but comatose.) Hailee similarly exaggerated the nature of the injuries inflicted on her father by Mr Kavinsky, claiming that her father’s “guts were all hanging out”. (Mrs Hilton says, and I accept, that there was merely “flared skin” visible on Mr Hilton’s bleeding stomach; a description which echoes that of Mr Falkins, who referred to a “protrusion”.) Hailee also seemed eager to describe Mr Kavinsky in highly pejorative terms; e.g., claiming that he resembled and was acting like a “wild ape”.

All such considerations strongly suggested to me that Hailee was taking on an advocacy role favouring a particular narrative, rather than serving as a reliable reporter of what she had observed. I also had apprehensions regarding Hailee’s reliability as a witness, given that she was the focus of the birthday gathering, (held primarily for her enjoyment), understandably would have been concentrating on interaction with friends rather than responsibility for monitoring the evening’s events, and admittedly had been consuming both marijuana and alcohol during the party, at a rather young age.

Although she downplayed her level of impairment during early parts of her testimony, she later mentioned that she already was “really out of it” well before the altercation, (e.g., at the time she claimed to have seen her father sending the accused home in a cab, earlier in the evening, because Mr Kavinsky was too intoxicated to remain at the party), and I already have made reference to her later repeated and express reliance on the fact she was “still drunk” at the time of her statements to the police, approximately four hours after the incident, as a means of explaining their inconsistency with her trial testimony.

I also was struck by her repeated indications that she did not remember many details of who was where, and what may have been said or done, because the night was “all kind of a blur” to her, and became more confusing as her “shock” and adrenalin surged.

Moreover, by her own initial indication during examination in chief, (repeated during cross-examination), she was inside the garage building and exited in response to someone entering and announcing that there had been a stabbing, which strongly suggests to me that Hailee simply was not present for most or all of the most crucial developments and events relating to the aggravated assault offence and claim of self-defence.

That impression was buttressed by Mrs Hilton’s independent indication that Hailee was not outside to witness the events leading up to the stabbing, as well as other problematic aspects of Hailee’s testimony. For example, at trial, Hailee testified that the altercation between Mr Hilton and Mr Kavinsky took place entirely in the laneway and at the doorway of Mr Kavinsky’s car, (as he was trying to leave), and that the two men never left that area and were “never near the garage”, although Mr Hilton, Mrs Hilton and Mr Kavinsky all said otherwise – as Hailee herself did in her earlier statement to the police.

Hailee also described alleged significant aspects of the confrontation between Mr Hilton and Mr Kavinsky, (e.g., Mr Kavinsky with his hands around Mr Hilton’s neck as Mr Hilton struggled to tell him that “drinking and driving was not worth it”), which not only seem unrealistic to me, but also were not mentioned by either man or Mrs Hilton when that would have been expected.

Furthermore, prior to cross-examination, Hailee testified that she saw the knife used by Mr Kavinsky to inflict Mr Hilton’s wounds sitting in Mr Kavinsky’s car in Strathroy the day after the incident, even though she acknowledged having never seen the knife on the night of the altercation, and even though other evidence made it quite clear the actual knife used by Mr Kavinsky had been hidden in an ash can at the Kavinsky residence shortly after the incident, before then being found and seized by the police the following day.

Similarly, Hailee was confident that Mr Kavinsky had stabbed Mrs Hilton in the leg, even though Mrs Hilton herself said she did not believe that had happened; that a cut on her leg had been caused by something else; and that a flippant comment by her to Hailee about that was not intended to be taken seriously. In other words, Hailee was quite willing and ready to testify confidently about matters really depending on demonstrably false memories, inferences and inaccurate hearsay.

For all these reasons, I am not inclined to attribute much weight to Hailee’s testimony, particularly where it conflicts with that of witnesses I considered more credible and reliable, (such as Hailee’s parents), in relation to significant details. • Melissa Hilton, in contrast to her daughter, seemed generally intent on being truthful and accurate, despite her admitted feelings for her husband and acknowledged inability to understand why Mr Kavinsky had done something she viewed as unwarranted and inappropriate. Her testimony was clear, precise, detailed and offered without hesitation.

In my view, her testimony also generally was consistent, with reasonable explanations offered for suggested inconsistencies with her earlier statement to the police. (For example, she clarified and confirmed that her earlier statement referring to her “thought” that Mr Hilton would “throw Johnny up against the wall and that would be the end of it” was a reference to her expectation or speculation at the time, and not a reference to what she actually saw take place.

Similarly, she explained that her reference to her husband grabbing the accused and throwing him into the garage door, and “guessing” that her husband was stabbed at that point, were really assumptions and speculation on her part, after she had been speaking with others about the events of the evening.

More generally, she emphasized that she was exhausted, distracted and not being careful at the time of her statement to the police, as it was 11am the next morning, (approximately seven hours after the incident), she had been up all night, and she was hurrying to complete the interview so that she could get to the hospital and see her husband. In her trial testimony, Mrs Hilton readily indicated and acknowledged her inability to recall certain details or observe certain events, especially when her focus and efforts were directed elsewhere.

She similarly was candid in acknowledging Mr Hilton’s swearing, as well as her own swearing and resort to violence on the evening in question, once she realized her husband had been stabbed. She also was unwilling to attribute further misconduct to the accused, (e.g., by suggesting that the cut to her own leg was an additional stab wound inflicted by Mr Kavinsky), where she believed that was unjustified. On the whole, I accordingly found her to be quite credible.

Moreover, her reliability as a witness was enhanced by the clearly serious and attentive manner in which she approached her role as a responsible social host that evening; e.g., limiting her own alcohol consumption, repeatedly circulating amongst the guests at her daughter’s party, actively intervening when she perceived situations of enhanced risk and potential danger, and calling for assistance from her husband and others when her assessment of situations suggested such assistance was necessary and appropriate. (Mrs Hilton was adamant and I accept that she did not consume any alcohol whatsoever on the evening and morning in question until shortly before the stabbing; i.e., within the preceding 30 minutes, at a time when she felt the party effectively was over apart from making final arrangements for those who were staying, and those who lived nearby and were just about to walk home.

Mr Kavinsky himself indicated that Mrs Hilton seemed sober throughout the evening. I therefore also accept that she was entirely sober or nearly so at all material times.) In broad terms, Mrs Hilton seemed intent on fulfilling the role of primary sober and responsible “grown up” at the party. In my view, her key recollections at trial were not shaken in cross-examination, and I am inclined to put considerable weight on her testimony. • Isaiah Falkins was only two years older than Hailee, but seemed much more mature, calm and dispassionate. In my view, various aspects about his testimony spoke to his credibility.

For example, while he had positive things to say about the Hiltons and Mr Hilton in particular, he also said commendable things about Mr Kavinsky’s behavior at the party earlier in the evening, was not inclined to say that Mr Kavinsky was intoxicated “by any means”, and in certain ways downplayed the significance of Mr Kavinsky’s display and use of a knife earlier in the evening. Mr Falkins also was reluctant to confirm that what he saw Mr Kavinsky drinking was alcohol, or that the

knife shown to him at trial definitely was the one Mr Kavinsky had in his possession prior to the stabbing, (as opposed to a knife that was at least similar to what Mr Falkins had seen). For such reasons, I formed an impression that Mr Falkins was trying to be fair, in spite of any loyalties he might have to the Hilton family. However, in my view, other aspects of Mr Falkins’ testimony gave rise to significant concerns about his reliability as a witness, particularly in relation to Mr Falkins’ memory of events surrounding the stabbing. Reasons for my concern about the reliability of Mr Falkins were varied.

For example, the answers he gave during examination and cross- examination generally were quite brief and lacking in detail, compared to the far more detailed testimony of witnesses such as Mr and Mrs Hilton. While Mr Falkins downplayed his own alcohol consumption on the night of the party, (e.g., saying that he prefers to remain sober and level-headed), he also acknowledged having consumed at least 3-4 beers and 1-2 shots of alcohol. He also indicated at one point that he admittedly was having difficulty recalling details, owing to the intervening passage of time.

Moreover, he also made certain assertions that seemed highly questionable or demonstrably false. For example, he initially suggested that there may have been only 8 guests at the party the whole night, which seems unlikely to me, particularly given the other indications I received, from Mr Hilton, and from Hailee and Mrs Hilton, (who organized and supervised the party), that the total attendance of Hailee’s friends and their boyfriends was significantly higher.

At the very least, it seemed that Mr Falkins was inclined to stay inside the garage and interact with a very limited number of people during most of the evening, thereby significantly limiting his ability to observe what may have been going on elsewhere. Mr Falkins also said he did not see anyone intoxicated at the party, despite considerable other testimony and admissions indicating that a number of young attendees, including Hailee, were drunk, throwing up and/or sent home with parents or in taxis.

Mr Falkins similarly claimed that he spoke with Mr Hilton throughout the evening, never saw a drink in Mr Hilton’s hands, and that Mr Hilton was entirely sober, although Mr Hilton himself confirmed that he actually spent most of his time near the house rather than the party in and around the garage, had very little interaction with Hailee’s party guests, and admittedly was drinking and intoxicated. Moreover, various aspects of Mr Falkins’ account of events around the time of the stabbing seemed inherently implausible to me.

For example, Mr Falkins said he did not see Mrs Hilton in or around the garage at any time, ( including during the time of the altercation between Mr Hilton and Mr Kavinsky, and the events that followed immediately thereafter), until Mrs Hilton entered the garage with her children sometime after Mr Hilton eventually had been taken into the building to await the arrival of paramedics.

In my view, such an extended absence by Mrs Hilton from the vicinity of the party seems very unlikely, given her testimony, which I accept, about her determination to exercise supervision over the party. (Mr Kavinsky himself confirmed that she had been at the party, serving food, and taking steps to enforce the prohibition against drinking and driving.) Moreover, Mrs Hilton’s unquestioned efforts to stop Mr Kavinsky from driving make it clear that she was indeed around the garage shortly before the stabbing, still intent on exercising parental supervision, and obviously very much involved and interested in the efforts she and her husband were making to prevent the accused from driving.

Any suggestion that Mrs Hilton then effectively abandoned her husband, and vanished from the scene in and around the garage for an extended period of time, therefore not only seems incredible to me, but also suggests that Mr Falkins himself was either not present where and when he says he was, was otherwise not able to make accurate observations in relation to certain matters, or does not have a reliable memory of those matters for other reasons, such as a lack of sobriety.

Similarly, Mr Falkins outlined a sequence of events around the time of the stabbing that was different and more prolonged, in significant ways, to that described by Mr and Mrs Hilton, and by Mr Kavinsky. In that regard, the account of Mr Falkins was not only significantly different, but also struck me as implausible.

In particular, according to Mr Falkins, Mr Hilton was stabbed, then separated from Mr Kavinsky for a period of time, (during which Mr Falkins entered a group of people surrounding Mr Hilton, proceeded to calm Mr Hilton down, check both of Mr Hilton’s hands for weapons, put his hand on Mr Hilton’s stomach, lift Mr Hilton’s shirt to reveal and examine Mr Hilton’s torso injuries, and announce to all present and for the first time that Mr Hilton had been stabbed), before Mr Hilton then became angry and animated, broke open the storage area to retrieve “a broom or mop”, and used that item to attack Mr Kavinsky.

In my view, Mr Hilton would have been and clearly was bleeding profusely after receiving his wounds, making it immediately obvious to Mr Hilton that he had been stabbed, (once the bleeding was drawn to his attention). Moreover, the injuries were such that Mr Hilton’s ability to remain active and conscious were fading rapidly, resulting in his complete incapacitation within a fairly short period of time.

In the circumstances, the accounts provided by Mr Hilton, Mrs Hilton and Mr Kavinsky of Mr Hilton’s almost immediate anger and retaliation vis-à-vis Mr Kavinsky, before the collapse of Mr Hilton and Mr Falkins’ subsequent ministrations, seem far more realistic to me than Mr Falkins’ account of an intervening period of a group gathering around Mr Hilton, and calm pacifying involvement and/or treatment by Mr Falkins. I therefore think it likely that Mr Falkins has confused the order of events in that regard, elevating his level of involvement in the process, even though that may not have been deliberate.

I also was struck by Mr Falkins’ initial indication that he witnessed no distinct punches and “no anything ” but shoving when he allegedly saw Mr Hilton and Mr Kavinsky “holding” each other, followed by subsequent indications that he saw Mr Kavinsky, during that same time, make two movements which looked like Mr Kavinsky was punching Mr Hilton twice in the stomach. On that point, the testimony of Mr Falkins was not only significantly inconsistent, but also suggests to me that Mr Falkins really may have been drawing inferences from the two torso wounds he saw when he eventually lifted Mr Hilton’s shirt.

Certainly, the objective evidence suggests to me that Mr Kavinsky realistically must have made more than two stabbing movements to inflict the total number of wounds actually received by Mr Hilton. (In that regard, I note and accept the possibility, raised by defence counsel, that one particular stabbing motion effectively may produce more than one wound.

However, in my opinion, the location of Mr Hilton’s separate wounds, their nature, and their severity all indicate that there realistically must have been significantly more than simply two stabbing motions, and I think the number of stabbing motions was close if not equal to the number of wounds inflicted.) Moreover, since all the wounds were inflicted within a very short span of time, I think Mr Falkins likely would have seen more than two stabbing movements by Mr Kavinsky had Mr Falkins actually been outside to observe the physical altercation.

As noted above, there were indications that Mr Falkins was credible, and trying to be truthful and fair in his testimony. However, he also acknowledged having numerous discussions with others, both on the night in question and since that time, about what may have happened. For all such reasons, I therefore have serious doubts about Mr Falkins’ reliability, particularly in relation to his account of witnessing events later in the evening/morning, and especially the altercation between Mr Hilton and Mr Kavinsky when the stabbing occurred.

I believe Mr Falkins was instead drawing inferences and piecing together accounts supplied to him by others, along with his own possible observations as to what happened in the wake of the stabbing. • As for Monique Leget, she acknowledged that, while she had loved Mr Kavinsky at one point, she believed their relationship was “abusive”, felt that Mr Kavinsky had done unforgiveable things to her, and admittedly did not like him at the time of her testimony. She freely admitted that she therefore had not wanted to cooperate with defence counsel in advance of trial.

More generally, Ms Leget was clearly a troubled and fragile witness, who admittedly has been formally diagnosed as suffering from depression, anxiety and post- traumatic stress disorder. (That formal diagnosis was made approximately one year after the events giving rise to this proceeding, but Ms Leget candidly indicated her belief that her condition had been “more or less the same” at the time of the events in question.) Throughout her testimony, Ms Leget exhibited what appeared to be genuine anxiety and apprehension. She obviously and expressly did

not wish to be present in court, and indicated that she was “terrified” by the prospect of testifying in this proceeding, to the point of asking for the court’s “protection” after she had given her evidence. However, her apparently sincere fear of retaliation if she said anything adverse to the accused, (whether or not there was any real basis for that fear), strongly suggested to me that Ms Leget also honestly believed in the truth of what she was willing to say in that regard.

Moreover, that impression of honesty and fairness was reinforced by her readiness to acknowledge that her memory was “hazy” in certain respects, and that she was unable to hear or witness certain conversations or actions; e.g., because she was out of the room or otherwise not present at certain times.

Although firm in certain answers, (such as her confirmation of Mr Kavinsky’s express agreement with contemplated hiding of evidence, and his participation in forming plans in that regard), Ms Leget was not argumentative, and was quite willing to agree with other propositions casting Mr Kavinsky in a more positive light; e.g., confirming that Mr Kavinsky’s father had led the discussion about hiding or destroying evidence, and that there had not been time for the discussion of detailed plans before the police arrived.

More generally, I also was impressed by the emotional, artless and spontaneous manner in which Ms Leget answered questions. In short, Ms Leget struck me as being a credible witness, notwithstanding her current feelings about the accused. As for her reliability, Ms Leget readily confirmed that she was young at the time of the incident, and that she had been consuming alcohol; e.g., sharing in the consumption of a 26oz bottle of liquor.

Having said that, she also noted that, while she therefore had been “pretty drunk” earlier in the evening, several hours had passed between that time and the post-stabbing events described in her testimony. Apart from intoxication, she repeatedly indicated that she was extremely stressed by the events of the evening, “in shock” at certain times, and could not remember certain details of what had happened. Moreover, aspects of her presentation were at times somewhat immature and childlike, and occasionally very emotional.

However, looking beyond presentation and focusing on substance, I think the underlying developments outlined in her testimony actually formed an ordered, consistent and rational sequence of events in respect of which Ms Leget’s account was not really shaken in cross- examination.

Moreover, insofar as the police witnesses effectively confirmed that there were indeed apparent efforts taken to hide or destroy evidence, and there was no evidence to suggest that Ms Leget was aware of what the police had found in that regard, her testimony about hearing discussions regarding the proposed hiding of evidence was to some degree corroborated. In the result, I believe she provided me with a credible and r

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