Court File and Parties

Court File No.: Halton 10-3888

Date: 2012-11-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Malcolm Paul Rice

Before: Justice Stephen D. Brown

Heard on: November 7, 2011, March 20, August 15, 16, 2012

Reasons for Judgment released on: November 23, 2012

Counsel:

• Amy Stevenson, for the Crown
• Elizabeth Cassavoy, for the accused Malcolm Rice

Judgment

1. The Charges

[1] The accused is charged that on December 7, 2010 at the Town of Oakville, he did break and enter the residence of Christine Higgins and commit the indictable offence of assault, contrary to s. 348(1)(b) of the Criminal Code.

[2] He is further charged with committing one count of assault with a weapon being a frying pan on the same date contrary to s. 267(a) of the Criminal Code. The Crown elected to proceed by way of indictment on count two and the accused elected to be tried before me after having entered a plea of not guilty.

2. Issues in This Case

[3] In the early morning hours of December 7, 2010, Christine Higgins endured a horrendous, frightful and bizarre attack.

[4] An assailant entered her home, went to her bedroom and entered her bedroom. He then put his hand over her mouth while she was sleeping and commenced to hit her repeatedly over the head with a frying pan, ultimately breaking the frying pan. When she said to him "Malcolm, it's okay" a couple of times he stopped and walked out of her bedroom. He passed her daughter on the way out of the darkened house and went out the only door into the residence.

[5] No fingerprint or other forensic evidence links the accused to the frying pan or the possible points of entry.

[6] Both Ms. Higgins and her daughter Jamie identified the accused as being the assailant but the defence argues that this identification evidence is flawed, and is unsafe to rely on in the circumstances of this case.

[7] Furthermore, the defence advances an alibi, saying that the accused was at his mother's house, some distance away from the scene of the crime, and that his car had broken down that evening making it impossible for him to have driven to the complainant's house because he had left it broken down in a parking lot not far from his own home.

[8] This is a case where the prime issue is that of identification. As well, the accused has advanced an alibi defence that must be addressed in the contemplation of whether the Crown has reached the high standard of proof beyond a reasonable doubt. Since the accused testified and called evidence in his defence the W.D. analysis must be used in the determination of whether the Crown has met its high burden of proof.

3. Evidence at Trial

3.1 Background and Relationship

[9] Malcolm Rice and Christine Higgins were involved in a relationship for several years. Beginning in March 2007, they lived together along with her daughter Jamie and her son.

[10] There came a point when the relationship ended for a while, and Mr. Rice was under conditions not to have any contact with Ms. Higgins. As well, Ms. Higgins' family disapproved of Mr. Rice and the relationship and did not want Ms. Higgins to resume it. She did, but kept it a secret from her family and her daughter.

[11] In the summer of 2010 Ms. Higgins decided to move back to Oakville to seek work and moved in with Mr. Rice around August, although she stated to her family that she was living with a girlfriend. She would stay with Mr. Rice during the week and on weekends would go back to her parents' home to be with her daughter who at the time was living up north. She described her relationship with Mr. Rice during this time as good, and Mr. Rice described their relationship as perfect.

[12] She acquired an accommodation at 599 Unsworth Avenue Unit A, in Oakville, and was to take possession of the unit on November 1st, 2010. The plan was to move into the house when the painting and other work had been completed. For the time being, just the complainant and her daughter would occupy the residence. She had not told her daughter that she was dating the accused because her daughter would have been upset, as would her family, so she continued to maintain this secret, even after she moved into the home with her daughter.

[13] Mr. Rice helped her out with the painting of the new apartment and at times he would paint while she was at work during the day. She had changed the locks on the home upon taking possession of the home. Ms. Higgins said that there were only two keys to the apartment, one that was given to her daughter Jamie Marras when she moved in and one that Ms. Higgins kept but loaned to Mr. Rice. Mr. Rice testified that he never made a copy of that key. Ms. Higgins and her daughter testified that they never loaned out the key to any other person.

[14] Ms. Cassavoy points out that the Crown did not prove that the landlord did not have a key or that someone may have surreptitiously removed the key from the complainant or her daughter's purse and made a copy. This I find would be purely speculative and this avenue was not vigorously pursued in cross examination to the extent that I would consider that as a viable possibility.

[15] The only entry into the apartment was through the front door. Although there was a connecting door to the neighbours unit, that door was painted over and located in Jamie's bedroom in such a position that her headboard would have blocked entry from that door.

[16] On November 28, 2010 Ms. Higgins and her daughter Jamie moved in to the apartment with her dog, who was 9 years old, didn't bark, and was familiar with Mr. Rice because it had lived with him when he and Christine and Jamie had all resided together in the past.

[17] Ms. Stevenson's written submissions accurately set out the evidence and I borrow heavily from them in the following paragraphs.

3.2 Events of December 6, 2010

[18] There had not been any arguments between the accused and the complainant in the days leading up to December 6, 2010.

[19] That date, Ms. Higgins returned home from work at 5:00 p.m. She went back to work at 5:30 pm for an audit and was there for a further hour. When she returned home at 6:30 p.m., Jamie was making dinner.

[20] Ms. Higgins testified she was texting with Mr. Rice that evening. She told him that she had gone back to work for an hour. He was telling her about putting Christmas lights up at his house. Mr. Rice did not seem upset in these text messages.

[21] The accused's testimony confirmed that during the day he had bought Christmas lights for the house and put them up. He also confirmed that there was texting and the messages were "nice".

[22] Ms Higgins testified that at some point after dinner the accused called her on her cell phone. He was very angry with her. He was accusing her of not caring about him and asking her why she went back to work. He said he had been there and looked around the back. He asked where she went for a cigarette when she was at work. She told him that she didn't have a cigarette because she wasn't there long enough. The accused referred to a smashed up van in the back parking lot of her work. Ms. Higgins could tell that he was in a bad mood. She told him that she did not want to talk to him when he was like that and she hung up on him.

[23] She believes they spoke for about half an hour before she hung up on him. His mood was mad. "When he gets mad, he changes, his tone of voice changes. The things that he says are strange. A lot of things don't make sense. I could tell instantly that he's in one of those moods."

[24] In his evidence the accused denied calling Ms. Higgins "I don't believe I did no….if anything there was a couple of text messages but no, no actual call." He testified it was Ms. Higgins who had called him that night just after 9:30 p.m.

[25] The accused admits discussing why Ms. Higgins went back to work. "We were discussing why she had gone back to work that day." The conversation was 45 minutes maybe a little less. He testified it was not an argument, "I'd say more of a discussion." It ended with him saying goodbye and that was it. He testified that the conversation ended just after 10:00 p.m.

[26] In cross examination he agreed that there were some "ill feelings" on the phone, "I wouldn't say she hung up on me, no. ...She said, she said, she had to go, and that was it."

[27] In his video, without prompting, the accused chose the word argument; "we talked about she had gone to work, she had to go back to work, we had a bit of an argument about it but the conversation was okay." Yet later in the statement when Detective Constable Vatcher referred to it as an argument, the accused took issue. In cross-examination he explained "it wasn't a yelling and screaming match, it was more if anything a disagreement or, I know I used the word argument but it wasn't that bad."

[28] When cross-examined further about how such a minor detail (an extra hour at work for an audit) could be a big deal in an otherwise "perfect" relationship, the accused responded "I don't think it was such a big deal. It was just a matter of, the question was, I believed that she finished work around five o'clock, I just questioned why didn't you stay after work instead of going home then going back. I was just curious that's all." He went on to say that it was the officer making it sound like it was this outrageous argument they were having.

[29] In his evidence the accused did not deny asking Ms. Higgins where she has a cigarette at work or speaking of the burned out van, rather responding initially "I don't recall that."

[30] Ms. Higgins testified that after she hung up on Mr. Rice she continued to receive text messages from him. He kept calling her cell phone but she wouldn't answer it. She believes this was between 9:30 and 11:00 p.m. Several texts stated that he would attend her work in the morning to bring her a coffee and a kiss. It was either by phone or text, she could not recall which, that she told him no.

[31] In his testimony, the accused admitted telling her that he was going to come by the next day and bring her a coffee at work at lunch time but says this happened on the phone. When the lack of a vehicle was pointed out to him in cross-examination he stated he would take it by taxi if "If I had to, sure."

[32] Despite the offer to bring coffee, the accused did not mention to Ms. Higgins the state of his car (nor was it put to her in cross-examination):

Q – Isn't having car trouble and having to end up taking a cab to your mother's house the kind of thing that you would tell your partner?

A – Yeah, I just don't think the car ever came up.

Q – How could it not though…your car had been falling apart for a long period of time, you say, and then, all of a sudden, on this day, it's like, it's at the end of the line you can't even drive it for five minutes. And, so, you've had to park it at the Hopedale Mall and now you've had to take a cab across town to your mother's and you don't mention that to your partner?

A - I don't believe I did no. (Aug 16/12 p 15, line 7 – 28)

[33] Ms. Higgins testified that the accused was asking if any of her co-workers knew that she had a boyfriend. When asked during his video if the argument was over her seeing another man at work, the accused responded "Not totally, no." The accused maintained his concern was that her being at work at that time was "a little out of the ordinary." In cross-examination the accused admitted that he had questioned her about whether people at work knew she was in a relationship with him.

[34] Ms Higgins testified that the last text message she saw was at approximately 11:30 p.m. It said, "Good night baby, I love you." She did not respond. In cross-examination the accused admitted that he sent this text.

[35] Ms. Higgins saw a subsequent text but not until the next morning. It came after she was already asleep at 11:45 pm, or perhaps 12:45 am. The text said "Are you up?" or "Are you awake?" In cross-examination the accused left open the possibility that he had sent that text, he did not recall sending it but stated, "We have done that in the past with each other. We've sent those same texts."

[36] Ms. Higgins testified that she believes she locked the front door before going to bed. "I always lock my door".

[37] In cross-examination she testified that while she could not specifically remember locking the door that is what she normally does, "…I lock the door every night before I go to bed. It's just her and I. I lock the door."

[38] Jamie testified that her mom would always turn on the stove light and lock the door before going to bed and that she saw her do it this night. Jamie agreed that this was not in her police statement; "I remembered it back then, I just forgot to mention it to them." Ms. Higgins did use the word "may" and "possibly" at one point. In cross-examination she testified "I put the stove light on every night, so I don't know why that would be a different night to do something different."

[39] The stove light is on the far right wall of the kitchen in Exhibit 1. Jamie explained that the effect of the stove light is to "just light up the kitchen a bit". Ms. Higgins said in her testimony that the light from the stove would be in front of anyone who was walking from the living room through the kitchen to the porch. Exhibit 1 shows the layout of the rooms. Ms. Higgins' bedroom was farthest from the front door. Jamie's bedroom was the closest.

[40] When Ms. Higgins went to sleep her bedroom door was closed. Jamie testified that she closed her mother's door after saying good night. Ms. Higgins believes she last looked at the clock around 11:00 p.m., because she has to get up at 5 every morning. Jamie left her own door half open.

3.3 The Attack

[41] Ms. Higgins testified that she awoke facing her bedroom door. When she opened her eyes, she could see somebody standing there and she knew it was not her daughter. She said "who's that?" or "who's there?" As soon as she said that she was hit in the face with something.

Then I was repeatedly being smashed in the face with something that I knew was metal, but I didn't know at the time what it was. I was screaming, yelling for my daughter to get out. He, he put his hand over my mouth to stop me from screaming, but he only covered half of my mouth so I was able to bite his hand. Then I figured I wasn't going to be able to scream anymore while ever I was biting him. I thought I was dead so I had to try and think of way to stop him from swinging it. So eventually, I said "Malcolm, it's okay", and I repeated it "Malcolm, it's okay" and then he stopped and opened my bedroom door and walked out.

[42] In cross examination she agreed that there was no verbal response, "he just stopped hitting me."

[43] In cross examination she agreed that she did not mention having said "Who's there?" in her statement to police. There were no lights on in Ms. Higgins' bedroom.

[44] Ms. Higgins was on her side facing the door when she was attacked. She had leaned up on one elbow and then she was hit. The blow landed on her forehead between her eyes. She testified that the bump is still there. She could hear the object every time it hit. She knew it was metal against her head but didn't know it was a frying pan. She was hit hard enough that she thought she was going to die. She has no idea how many times she was struck but it was over and over again.

[45] She was trapped under the covers so she couldn't get her feet out to protect herself so she used her arms to cover her head. She just kept trying to cover her head and her face.

[46] When he stopped, her assailant turned around and opened the door to walk out of the room. There was a light on in the living room. She assumes that her daughter turned it on. Her room was dark. In cross-examination she testified that it was a floor lamp but she could not recall exactly where it was in relation to the boxes, she believes it was in front of the assailant.

3.4 Identification of the Accused

[47] Ms. Higgins had not had any alcohol this date; in fact she does not drink. She was not taking any medications either.

[48] She testified that she used the name Malcolm because, "I knew it was him…..I could just tell. I knew – I knew him. I knew it was him. His hand. His shape" the shape of "his body".

[49] In cross-examination she agreed that she could not see the face of the person who was hitting her when she was in her room. She also agreed that she did not tell police that she saw half of his face or saw him outside the room.

[50] Ms. Higgins gave speculative evidence about biting the perpetrator. "I think it was his right. I might be wrong, but I think it was his right because I think it was the bottom side of his palm where, where his pinkie finger is across my face, so. I think it was his right." In cross-examination: "...I think he covered my mouth with his right hand and was hitting me with the left hand because it felt like this part of his hand that I had in my mouth, but I might be wrong." Mr. Rice testified that he is right-handed.

[51] In cross-examination Ms. Higgins testified that she held on but had no idea for how long. "It wasn't just a quick bite, I held on." She testified that the hand felt like a bare hand.

[52] During his interview with the accused Detective Constable Vatcher noted that Mr. Rice had a small cut to his right thumb. The injury appears in Exhibit 11 D. The accused denied this was a bite mark explaining it was a scab received at work, which was re-opened when Officer Amore was rough with the handcuffs.

[53] Ms. Higgins was mostly hit in the head, also in her arms when she was able to put her arms over her head and face.

[54] Jamie testified that she heard a rattling noise before the attack. She thought it was her mother in the kitchen. She heard that noise for "a few minutes" and dozed back off to sleep. A few minutes later she heard 'muffled screaming" coming from her mother's room.

[55] Jamie got out of bed and walked over to the living room and stood by her mother's door. She stood there for a while because she was in shock. She could hear her mother saying her name and saying help. "Next thing I saw the door open. Malcolm came out and my mother followed. He, Malcolm made eye contact with me". She testified that she was about five feet away and the eye contact lasted for about a minute but later corrected herself to say 30 seconds. Neither said anything. Jamie agreed that in her police statement she said she saw Malcolm standing inside the doorway whereas in court she had testified that she saw him outside the doorway. She confirmed when she first saw him it was outside the room. She admitted that when she gave the description to police, she did not describe his face.

[56] Ms. Higgins stated that she saw her daughter standing two or three feet away when the assailant opened the bedroom door. He walked out, stood in front of Jamie, stared at her and then turned to the left and through the kitchen and out the door. Ms. Higgins was behind them. Jamie went and locked the door and Ms. Higgins called 911.

[57] Jamie confirmed that he headed towards the front door she followed him locked the door behind him. She was afraid but she followed him anyways.

3.5 The 911 Call

[58] The recording of Ms. Higgins' call to 911 was tendered into evidence with the transcript. (Exhibit 16)

[59] Jamie was with her in the living room when she made the call.

[60] There was no conversation between Ms. Higgins and her daughter before she called 911. The only thing said by either of them was that Ms. Higgins "yelled for her to lock the door." Ms. Higgins testified that she did not try to influence her daughter's statement to police.

[61] During the 911 call Ms. Higgins referred to Mr. Rice as her ex-boyfriend because they were secretly seeing each other.

[62] She agreed that at one point she said to the 911 dispatcher "what if it wasn't him?". Jamie was present to hear this comment.

[63] Ms. Higgins told the dispatcher she believed it to be Malcolm Rice because "I saw him when we came out of the bedroom, I saw him." "I was behind him, so his back, but when he, he looked at my daughter and when he turned, I saw the side of his face."

[64] The call to 911 came in at 1:14:59 according to the police dispatch records. Officers were dispatched immediately and arrived on scene at 1:21 am.

[65] The officers checked the area outside for any vehicles or suspects and then went inside and cleared the house and checked all rooms.

[66] They checked all windows and doors and found no signs of forced entry. Although they noted all windows were closed they did not check to see if they were locked.

[67] Both the complainant and her daughter appeared very upset and Ms. Higgins appeared very shaky.

[68] EMS services attended and Ms. Higgins was taken to the hospital and subsequently released. The following day a video statement was taken from her at the police station.

[69] When recalled on the issue of the windows, Ms. Higgins testified that there were two windows in the kitchen, one in the bathroom, one in each of the three bedrooms and the front living room window. They all opened except the living room window was difficult; she could not get it open because the house is on a slant. In order to open the windows you had to push them up and the windows all had locks. Ms. Higgins testified they were always locked and shut throughout the winter.

[70] The accused testified that he always had the windows open when painting, but agreed that he had finished at least a week before they moved in. He also testified that each room he would do, he would close the windows at night. He agreed he probably would lock them. When it was suggested to him that he had no reason to believe the windows would have been unlocked on the 6 December 2010, he then said he didn't remember how the windows closed or locked, despite having already testified that he closed them and probably locked them as he finished each room.

3.6 The Accused's Boots

[71] Ms. Higgins testified that Malcolm's boots were found on the porch and they had not been there before this incident. He did not leave any belongings at the house except "maybe the odd tool..." "I think I might have a scraper of his, like a tool or two." Specifically, he left no clothing or footwear.

[72] Ms. Higgins testified that when you open the door from inside the residence the boots were on the left hand side. They were black with zippers, an ankle type winter boot. She has seen the accused wearing those boots on many occasions. There was no possibility that they had been left behind while doing the work on her house; "….if he had left them outside I would have hid them from my daughter…You can't miss them. They were right out front of the door." Exhibit 2A is a photograph of the boots in the position as described by Ms. Higgins.

[73] Officer Neglia and Lovett did not remember seeing a pair of boots on the porch. Neglia was present and remained at the scene while the photographs were taken.

[74] Although the boots were captured in the scenes of crime photos, they didn't stand out at the time. Officer Vatcher learned of the significance of the boots, from Ms. Higgins. As a result he had Officer Cormier seize the boots. She attended on December 7, 2010, at 10:34 a.m. The boots were turned over at the front door and the officer could not recall where Ms. Higgins obtained them from. She had no note of this.

[75] Ms. Higgins testified that the paint visible on the boots was not from the painting at her house. The accused confirmed this in his testimony. "It doesn't appear to be the colour that I was painting the house."

[76] In cross examination the following suggestions were made to Ms. Higgins regarding the boots:

Q- Do you remember that he used to come and he'd leave those boots on the front porch and, and he'd put them on to do the painting so he wouldn't get paint on his shoes?

A-No.

Q- Is it that you don't remember that he did it or that you're saying that he didn't do that?

A-We took our shoes off when we came in the house. We didn't leave them outside.

Q-So you remember a changing of shoes, though, coming into the house?

A - We didn't change shoes."

Q - Well, were you – do you know if he was painting in his sock feet?

A - As far as I know yes…Unless he did something different when I wasn't there, I don't know." (Nov 7 /10, p 47, line 9- 27)

[77] The accused confirmed that he and Ms. Higgins did paint in their sock feet.

[78] He testified that when he was alone, however, he had worn his shoes and spilled paint on them so he brought his boots.

When I'd get to the house I would change into my boots do the work I was doing for the day and when I would finish the house I would leave my boots in, basically she had a basement door that had a bit of a landing on it so I left my boots inside there and changed back into my shoes when I left.

It was never suggested to Ms. Higgins in cross-examination that the accused was storing his boots in this location of the home.

[79] The accused testified that he forgot the boots at the home after the painting was finished. He admitted in cross-examination that he did not tell the officer about leaving the boots in that location; "There's a lot going on at that time, I didn't realize." It was also never suggested to Ms. Higgins that the boots were left there.

[80] The following exchange did occur with Ms. Higgins over the photograph of the boots (Exhibit 2A):

Q-And you'll agree they aren't right in front of the door. They're sort of over off to the side?

A-Yes.

Q-Wouldn't you agree, that, I mean it sounds like you're a fairly busy person, that maybe you wouldn't have noticed the boots sitting there?

A - I would notice a pair of men's black boots sitting on my porch. (Nov 7/10 p 48, line 14- 22)

[81] In cross-examination, the accused agreed that if there was a pair of men's boots sitting on the front porch or inside the house for Jamie to see, it would probably lead to some questions. Jamie confirmed that at no time did she notice a pair of men's boots sitting on the porch. She stated that this is something she would have noticed had they been there. She was also never asked about the boots being left on the basement landing.

3.7 Opportunities for Collusion

[82] Ms. Higgins advised that she and her daughter waited in the living room together for the police. Jamie testified that she was with her mom the whole time that she was on the phone with the police. She accompanied her mom to the hospital in the back of the ambulance. At the hospital the two were separated to do their statements. She remained with her mother at the hospital until she was released. Jamie confirmed that her statement was taken at Oakville Trafalgar Hospital between 2:49 a.m. and 3:15 a.m.

[83] In cross-examination Jamie agreed that there had been lots of time to talk with her mom about what happened. She agreed that she had heard her mom say to police that it was Malcolm who had been there. She admitted that she had talked to her mom about what happened that night since the last trial date. In re-examination she explained that she had been told not to talk about the testimony in court by the Crown and police officer. She did not talk to her mom about her evidence just about "where to sit and who to look at" She testified that she was nervous about coming to court.

3.8 The Alibi

[84] In examination-in-chief the accused was asked to describe "basically what you did from about 5:00 p.m. on that day…" The accused required some prompting before explaining that he was at his mother's house where he received a phone call from Ms. Higgins and then fell asleep on the couch for the night. He testified that he did not leave his mother's house at any time between midnight and 8:20 a.m.

[85] The accused testified, "My mom had called me quite a few times and learnt that she was not feeling very well and I told her I would be up there today and basically just check on her and see how she's doing." He testified that he had talked to her a couple of times that day probably mid-afternoon and she had asked him to come over a couple of days prior to that as well. He testified his mother was expecting him that evening. Wendy Rice confirmed she was expecting him to arrive "sometime in the evening after dinner."

[86] The accused and his mother described her illness differently. While the accused referred to potentially cancerous lesions on her arms, she testified it was her heart murmur making her feel unwell and nervous. In cross-examination she added that she now has high blood pressure and a specialist appointment in October. She testified that she made it clear to her son that the issue on December 6, 2010, was her heart murmur.

[87] The accused testified that he had left his house about 8:00 p.m. and encountered car problems almost immediately.

I believe it was Hickson Street where the vehicle had stopped. I had released the pressure on the radiator, let it sit for a little bit and then I could go again. By the time I got to Hopedale Mall and it was pretty much I couldn't drive it anymore, I had to let the car sit.

[88] The accused testified that he got the car to the Hopedale Mall parking lot, locked the doors and left in a cab to his mother's house. "I was close to the bus shelter where the buses come in at the Hopedale Mall there's always a cab there and I knew that so I walked over and sure enough there was a cab there." In contrast, in his video statement at p. 38 the accused stated "the cab was driving by."

[89] He testified he arrived at his mother's home at about 9:30, maybe just after 9:00. When asked what the urgency was to see his mother given his sister lives with her, he stated she is usually not home. He did not mention, however, that he has two other sisters and a brother–in-law living on the same street as his mother who could have been asked to check on her. It was during his mother's testimony that this became known to the court.

[90] "Not much was going on. I checked, my mother wasn't downstairs so I obviously went upstairs. My mom's door was closed so I knew she was probably taking a nap or had gone to bed. She wasn't feeling well so…" He did not speak to her at that time,"I went back downstairs and I figured she'd probably wake up at some point so I started watching tv….then soon not too far after Christine called me."

[91] He disagreed that his conduct when he arrived did not amount to "checking on her," "her bedroom door was closed and she was sleeping." "You could hear her sleep. I didn't want to wake her. I figured she would hear me downstairs and eventually come down. It's just a matter of I didn't want to wake her." He said he could hear, "more of a heavy breathing".

[92] In cross-examination, the accused agreed that he did not mention to Ms. Higgins, during their 45 minute phone call, that his car had broken down and he had to take a cab to his mother's house. This event was unusual given that on p. 37 of his video he says, "It's been a long time since I've taken a cab." Indeed, he did not mention being at his mother's house to her at all.

[93] The accused testified that he did not know what time he went to sleep. He fell asleep watching tv. When defence counsel asked why he would sleep over at his mother's house he responded as follows: "Basically the car problem, the car issue. I was hoping I might be able to get a ride from my sister but sister was not home so…" He went on to say "I wouldn't call it normal [to sleep over] but I just did because I wanted to make sure she was okay."

[94] He did not mention in his video that he was hoping to get a ride from his sister.

[95] The accused testified that his mother does not have a car and doesn't drive, however, his mother testified, "I drive but I don't have a vehicle." She also agreed that on occasion she would borrow a vehicle from her daughters or son-in-law.

[96] The accused testified that he had his cell phone on during the night of December 6 – 7 but that the only time he heard it ring was when Christine called him. Officer Lovett attempted to call the accused's cell phone shortly before 2:00 a.m.

[97] The accused testified that his phone would have shut off because the battery was dying and that he did not receive a message from police until much later. He did not check it before he went to sleep but in the morning time the battery was so low that there was nothing left. The phone battery was indeed dead during his interview with Detective Constable Vatcher.

[98] According to the Event Chronology (Exhibit 15) by 2:36 a.m. police were aware of the accused's Sovereign Street address and his mother's address on Remington. While there is a record of a check on the Remington address at 3:00 a.m., the only comment recorded is "no vehicle at mom's residence". It does not appear that a door knock was done before Officer Hardie arrived at 8:47 a.m.

[99] In his video interview the accused said his mother told him she saw him sleeping on the couch "in the middle of the night when she came down". He maintained this during his trial testimony. This is contrary to the evidence of Wendy Rice. She definitely did not go down from her bedroom in the middle of the night and see her son on the couch, and she definitely did not tell her son that she had done so.

[100] When it was suggested to Wendy Rice that she did not know whether her son came and went during the night, because she was sleeping upstairs with her door closed, she responded "I'm pretty sure he didn't leave that house without me knowing."

[101] When asked if he saw his mother in the morning the accused responded:

She was in, I believe it was in the kitchen, kitchen and living room is very close to each other. She was already awake….I just asked her how she's doing, how she's feeling….I asked her how she was feeling just basically chit chatting for a couple of minutes.

[102] The accused testified that he woke up in the morning at about 8:25, and left the house, "just like soon right after, 8:30, just after 8:30. "Basically I went to deal with the car so I basically had to, I couldn't get a ride down so I went to basically take a cab and go to deal with the car." He called a taxi, he thinks it was Oakville United. The accused's mother testified that she was out shopping that morning with her daughter. There was no evidence as to why the accused could not have gotten a ride to Hopedale Mall from his sister that morning.

[103] The accused testified that from the time he woke up to the time he left the house there were no phone calls or door knocks. Officer Hardie's evidence was that he did the door knock at 8:47 a.m. and there was no response.

[104] The accused admitted that he could have done what he did for his mother by phone rather than in person.

[105] The accused testified in examination in-chief that after leaving his mother's place in the morning:

I basically got down to Hopedale Mall and started the car and realized it's not going anywhere so basically I had to figure out what I was going to do with it, with towing it or I had to figure out what to do with it so at that point I had checked my messages because my phone was dead and that's where I received a message from the officer.

[106] The accused testified that as soon as he heard the message from the officer he immediately called the police. "I basically called the police back right away and asked them what this is all about. They asked me if I could come in to the actual police station. I said, sure, not a problem, and jumped in a cab." In cross-examination he denied calling his mother after receiving the voice message and before calling the Domestic Violence unit.

[107] In examination in chief Wendy Rice testified that she could not remember what she did on December 6, 2010, "a normal day would be cleaning, cooking, sometimes, for the family in the evening." She would be cleaning and cooking even if she didn't feel well. Despite her evidence that she could not remember, however, when asked if on December 6, 2010, she was cooking for anyone, she replied, "I would be cooking for my son-in-law that's here today and daughter and three children." She testified that she would make dinner and take it over, even if she wasn't feeling well. She testified that she would have asked Malcolm if he was coming by for dinner, "I'm sure I did, but he didn't."

[108] Wendy Rice testified that she had been asking her son to come for about two weeks before December 6, 2010, because she hadn't been feeling right. She asked him if he could come by more often and he said he would. "And I asked him if he would come by tonight. He said he would." A short time later she was asked, "So, did your son explain to you why he didn't come right away then, when you'd been telling him for two weeks that you're not feeling well, and he hasn't come by?" "Yes, because I knew he had car problems for a few weeks. That it had been stopping and he'd been getting it going and stopping and starting. I knew that for a few weeks before."

[109] Later in cross-examination, Ms. Rice indicated that he had been coming "on and off' during that two week period. She testified that when she answered above she had misunderstood. She testified that the last time he had come before the 6 th was "probably – maybe three days before." When it was suggested to her that she was just guessing and couldn't possibly remember back from August 2012 to December 2010, she admitted "I'm guessing but it's an educated guess because he – you know – he would be around often. So it would not be far off."

[110] The accused on the other hand testified, "I probably talked to her a couple of times that day, I'm not exactly sure what time it was but probably mid afternoon." "Okay, did she ask you to come over?" "Yeah, she asked me probably a couple of days prior to that as well."

[111] Prior to her testimony, Wendy Rice made one oral statement and one written statement. During his interview of the accused, between 12:30 – 1:00 p.m. on December 7, 2010, Detective Constable Vatcher contacted Ms. Rice by telephone:

I asked Wendy Rice if she had seen her son last night. She replied that she saw her son this morning at 9 am asleep on the couch.

I asked her if she heard him come home last night. And she replied that she was in bed. It could have been around 11 pm when she heard him talking on the phone just shortly after he arrived home.

She received a phone call from him in the morning at 9:47 am. (Aug 15/12 p 15, line 20-27, p 16, line 10 – p17, line 1)

[112] Wendy Rice agreed that it was between 12:30 – 1:00 p.m. that she received the call from Detective Constable Vatcher. She testified that she did not recall telling him it was around 9:00 a.m. that she saw her son on the couch. She agreed that she did not commit any of the details to writing until she wrote the letter approximately one week later. When suggested to her that the events would have been much fresher in her memory on December 7, 2010, she did not agree, indicating that she was very upset and anxious at the time … "so I don't know what I - exactly what I said to him." "I could have said that, but I don't recall that."

[113] Wendy Rice agreed that the officer had asked her if she heard her son come home. She further agreed that she told him, she was in bed, and it could have been around 11:00 p.m. when she heard him talking on the phone, just after he arrived home. She agreed that this was different from what she had written a week later, that it was about 9:30 that she heard him come through the door and a short time later on the phone. She did not agree that this was a discrepancy in the time; "I told the police officer I didn't – I couldn't think, I was upset. I said, "I don't know". But he kept pushing me and pushing me, so I just said a time." When pointed out that this was a very short time after these events occurred, she responded, "I'm a nervous person, and I was very agitated and I kept telling him, "I'm not sure, I'm not sure." But he kept pushing and pushing until I gave him a time." This was not put to Officer Vatcher in cross-examination.

[114] When she received the phone call from her son in the morning he said, "I've got a message on my phone from the police station. They want to talk to me." And I said "what for?" He says, "I don't know." I says, "What are you going to do?" He says, "I'm going down there now." The Event Chronology notes that the accused's call to the DV unit was made at 10:09:18 a.m. from the Hopedale Mall.

[115] Despite his mother placing the time of his call to her at 9:47 a.m. (as reported by her to Detective Constable Vatcher) the accused maintained in cross-examination that he called his mother after calling the police and she "might be wrong about the time."

[116] Wendy Rice initially testified that she did not provide any statement in relation to her son's alibi. Her memory was then refreshed that she had prepared a statement for the previous lawyer Brendan Neil. She agreed and said her son-in-law typed it up. That statement reads:

On December 6 th , 2010, I, Wendy Rice, was not feeling very well and asked Malcolm to stop by my house at 297 Rimington Drive in Oakville. I went to bed around 8 pm to read. At approximately 9:30 pm, I heard Malcolm enter my house through the front door. A short while later I heard some talking. I assumed he was on the phone as I did not hear any other voices. I fell asleep a short while later. On a couple of occasions during the night, I awoke to use the lavatory. On both occasions I heard him snoring downstairs. When I awoke at about 8:30 am I went downstairs and Malcolm was asleep on the couch.

[117] In her testimony Ms. Rice indicated that she went to bed at about 8 o'clock "and I was reading for quite a while." The bedroom door was closed. She heard Malcolm. "I was in bed reading, and I was drifting off but I heard him….I heard the tv, and I heard him talking on the phone to somebody…it would be 9:15, 9:20…." When asked if she wasn't still reading at the time her son came in she responded "I believe I put the book down and I was maybe drifting to sleep, when I heard, heard him." She admitted that she was still awake "semi" when he arrived yet didn't call down to him to tell him. When pointed out that the letter she had written for Brendan Neil suggested that she was reading up until the time she heard her son on the phone and then fell asleep, she agreed that was what she had written in the letter. She did not view this as a discrepancy.

[118] When suggested that her son would have seen the light under her door if she was still awake and reading a book, she responded "I have a small light on the night table, I don't really think it's that strong."

[119] She testified that he did not come and speak to her, and when asked if she would normally expect him to come and speak to her when he arrived at her house she responded "No, I was expecting him. I knew he was coming."

[120] When suggested to her that if he had physically come upstairs and stood outside her door she would have heard him she answered ,"Possibly, I didn't. I didn't hear anything." The accused testified that he went upstairs, stood outside her door and could hear her sleeping.

[121] Ms. Rice testified that she did not see Malcolm after she went to bed "I only saw him when I got up….a little before 8:30….I went downstairs and he was asleep on the couch." She stated that she knew it was pretty close to 8:30 because, "I remember looking at the clock and thinking that I'd slept in."

[122] Ms. Rice testified that she gets up all night long. "I'm up every night. I go every night, every couple of hours, to the bathroom." When asked if she heard anything when she was up she testified "… I knew he was there. I heard him snoring." In cross-examination she agreed that she has no idea of the times that she was up to use the washroom. "No I can only go by my schedule – usually I'm two, four…around them times, you know, it's every couple of hours." She agreed that if she had known the times she was up she would have included them in her statement.

[123] Ms. Rice did not agree that if her son was at her house he could have left during the night and returned the following morning, "No. I don't believe so." When pointed out to her that although she gets up every two hours, she only heard him snoring twice, which means he may not have been there on the other occasions she got up, Ms. Rice responded, "I don't believe that." When pointed out she did not tell Officer Vatcher about hearing the snoring she responded, "I can't recall. I - I feel like I did tell him….I'm not saying that I'm sure that I told him. I just know I was answering his questions. It was not put to Officer Vatcher in cross-examination that she had told him that she heard her son snoring.

[124] In examination-in-chief Ms. Rice was asked if she had an alarm system "or anything in your house that would tell you whether anyone came in or out during the night?" She answered "no". Then in cross-examination she stated for the first time "I have a childproof doorknob on the inside, which is – you have to line it up and it makes a noise. So I would have heard it. Some people can't even open the door. I have to go up to the door and open if for them."

[125] When pointed out to Ms. Rice that she had not told the officer about this door knob when he called on December 7, 2010, she responded:

I'm kind of thinking that I did say that to the police officer….I'm trying to think back, okay, I'm trying to think back, and that doorknob was on there at that time….I can't be sure, you know, I'm not going to say for certain. I can't be sure….

She agreed that despite being asked what she had told the officer she did not mention the squeaky doorknob "It never entered my head….I just thought about it now, if he was trying to get out, I would probably hear it." The accused did not mention a squeaky doorknob in either his video statement or his testimony.

[126] She testified, "I woke him up. He asked me how I was feeling. I said I wasn't feeling right, and he was about to go and see about the car that had broken down, and that he'd talk to me later. And, he left."

[127] The accused did not testify that his mother woke him up, rather, when asked if saw his mother when he woke up, he testified she "was in I believe it was in the kitchen, kitchen and living room is very close to each other. She was already awake."

[128] Wendy Rice testified that after her son woke up, "I'd say we only talked for a few minutes and he left….I went straight up to the shower, got ready for the day." She claimed to have a particular memory of going straight up for her shower "then when I would come down, I would get my tea and I would sit outside and have a cigarette…..I do it every day."

[129] Ms. Rice stated that the frying pan in question did not belong to her son. "I know all his pans, they all match…" She went on further to say "I know all his stuff in his kitchen. I know all his stuff in his house." In cross examination Ms. Rice maintained that this was not an exaggeration on her part. "So you're claiming to know all of your son's belongings in his house, your adult son who lives separate and apart from you?" "Yes." "It's a pretty sweeping statement don't you think?" "No, I'm in his house. I cook in – you know, we both cook together, we have a function- last Sunday we had a barbeque. I'm helping him in the kitchen" …. "it just can't be true that you know everything your son has in his house? You disagree with that?" "I disagree."

4. Legal Issues and Analysis

4.1 Alibi Evidence

[131] As stated in R. v. Hill, alibi is the Latin word for elsewhere and "it has through the years come to mean the plea that when the alleged act took place one was elsewhere and therefore it was impossible for him to have committed the crime".

[132] To constitute an alibi the evidence must be determinative of the final issue of guilt or innocence of the accused. Thus an alibi can be "incomplete." See R. v. Hill, R. v. M.R. and R v. T.W.C..

[133] In R. v. Hibbert, the Supreme Court of Canada provided a helpful summary of the law with respect to the rejection of a defence of alibi at page 152:

• In the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value;

• A disbelieved alibi is insufficient to support an inference of concoction or deliberate fabrication. There must be other evidence from which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury. It is the attempt to deceive, and not the failed alibi, that supports an inference of consciousness of guilt;

• In appropriate cases, if for instance there were multiple accused, the jury should be instructed that the fabricated alibi may be used to place the accused at the scene of the crime, but may fall short of directly implicating him in its commission;

• When there is evidence that an alibi was fabricated at the instigation or with the knowledge and approval of the accused, that evidence may be used by the jury to support an inference of consciousness of guilt;

• In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn;

• A fabricated alibi is not conclusive evidence of guilt.

[134] As the Court explains in Hibbert, at page 151, there is need for "independent" evidence of the fabricated alibi, this means evidence that is separate from the evidence that contradicts or discredits the alibi.

Suffice it to say that the cases have consistently pointed out that there must be evidence linking the accused to fabrication and that such evidence cannot emerge from mere rejection of the alibi tendered. Many have spoken of the need for independent evidence of fabrication above and beyond a finding that the alibi is false.

[135] In R. v. O'Connor, the Ontario Court of Appeal found that sufficient independent evidence of fabrication could be found in the circumstances surrounding the making of the statements themselves. However, the fact that in court testimony is demonstrably false cannot constitute "independent" evidence of fabrication;

The cases make it clear that when it is an accused's testimony which is disbelieved, the circumstances in which the accused gave the disbelieved version of events – as part of the trial process itself – is not considered to be independent evidence of fabrication permitting an adverse inference against the accused…..Before an adverse inference may be drawn, there must be evidence capable of showing fabrication apart from both the evidence contradicting the accused's testimony and the fact that the accused is found to have testified falsely at the trial.

R. v. O'Connor. See also, R. v. Hazel, R. v. Bennett, R. v. Price.

[136] The Court in O'Connor also states:

26 In addition, the circumstances in which an accused, or a person who eventually becomes an accused, makes an out-of-court statement which is found to be untrue may have an evidentiary value that is not present in the circumstance where an accused testifies and is disbelieved. False exculpatory statements made by a person upon being informed that a crime has been committed will in some circumstances be consistent with that person being conscious of having committed the crime and may point to guilt in the same way that other after-the-fact conduct such as flight, a threat to a witness, or concealment of evidence can be probative of guilt. The circumstances in which a false statement is made may show an intent to mislead the police or others or an intent to deflect suspicion and may be evidence of a conscious mind that he or she has committed an offence. When a court is addressing the admissibility of evidence contradicting an accused's out-of-court statement, it will be required to determine if there is independent evidence of fabrication, but in doing so, the court may consider the circumstances in which the allegedly false statement was made. If those circumstances tend to support a conclusion that the accused made a false statement because he or she was conscious of having committed the offence, then those circumstances may be used as independent evidence of fabrication.

27 I recognize that the practical effect of permitting the circumstances in which an accused's allegedly false out-of-court statement is made to be used as evidence of fabrication will in most cases result in treating such statements in the same manner as other after-the-fact conduct, i.e. if the fact that the accused told a false version of events is probative of guilt then it is admissible. Because of that, I considered whether there is any need to extend the independent evidence of fabrication requirement to out-of-court statements of an accused. I have concluded that there is for two reasons. First, the case law to this point in time does not draw a distinction between disbelieved out-of-court statements and disbelieved testimony. Second, and perhaps more importantly, I think that the court should proceed with great care in considering the use that may be made of disbelieved statements of an accused whenever they are made. Although the dangers that triers of fact may misuse an accused's disbelieved statement is less when the statement is made out-of-court than it is when the accused's version of events is given in evidence, there nonetheless remains a danger. The requirement that the court always approach the disbelieved out-of-court statement within the analytical paradigm of requiring independent evidence of fabrication provides a prudent and desirable safeguard that disbelieved out-of-court statements will not assume a more prominent evidentiary role than is warranted.

4.2 Eyewitness Identification

[137] Eye-witness testimony is an expression by a witness of her belief or impression. It is quite possible for honest witnesses to make mistakes in identification. An apparently convincing witness can be mistaken as can more than one apparently convincing witness. As such, eyewitness identification has been at the heart of many wrongful convictions.

[138] The weight to be assigned to identification evidence varies with the circumstances of the case: see R. v. Miaponoose; R. v. Smierciak.

[139] The frailties of eye witness identification evidence are well documented and a Court should always caution itself regarding them. This is so even where the accused is known to the witness. See R. v. Brown.

[140] Factors that must be taken into account in assessing eyewitness evidence are the following:

• Did the witness know the person before she saw him at the time?
• Had the witness seen the person on a prior occasion?
• How long did the witness watch the person she says is the Accused?
• How good or bad was the visibility?
• Was there anything that prevented or hindered a clear view?
• How far apart were the witness and the person whom she saw?
• How good was the lighting?
• Did anything distract the witness' attention at the time she made the observations?

[141] As well the standard jury charge suggests the following factors must be considered:

• How long was it between the observation and identification?
• Did anybody show the Accused's picture to the witness to assist in the identification?
• Were photographs of other people shown at the same time?
• Was anyone else present when the witness made the identification?
• What did the witness say when she identified the Accused?
• Did the witness ever fail to identify the Accused as the person whom she saw?
• Has the witness ever changed her mind about the identification?
• Has the witness ever expressed uncertainty about or questioned her identification?

[142] The cases do distinguish between eye witness identification evidence and recognition evidence. While the reliability of recognition evidence may be affected by the circumstances it is a different matter than identifying a stranger based on physical appearance in fleeting circumstances.

4.3 Motive

[143] As stated by Ms. Stevenson in her submissions the following principles are adopted as legally correct.

[144] Motive is a reason why somebody does something. Motive is not an essential element of the offences to be proved by the Crown beyond a reasonable doubt. A person may be found guilty of an offence whatever his motive or even without a motive.

[145] She further states and I accept as correct the following propositions:

There is a significant difference between absence of proved motive and proved absence of motive. R. v. White.

Further, the court is also entitled to consider the absence of motive to lie on the part of a witness, see R. v. Windibank and R. v. Badiru.

4.4 Circumstantial Evidence

[146] There is no requirement for any special instruction on circumstantial evidence even where the case is one of identification. In order to convict in a case based on circumstantial evidence, the court must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. See R. v. Cooper, and R. v. Fleet.

5. Analysis

[147] The burden of proof in this case, as in every criminal allegation, is upon the Crown to prove the facts in support of the guilt of the defendant on the basis of proof beyond a reasonable doubt. A reasonable doubt, as per Mr. Justice Cory's comments in R. v. Lifchus, is defined as "a doubt based on reason and common sense which must logically be based upon the evidence or lack of evidence". Alternatively, it has been defined by Mr. Justice Iacobucci of the Supreme Court of Canada in R. v. Starr as "falling much closer to absolute certainty than to proof on a balance of probabilities".

[148] In assessing a witness's credibility and reliability, I must consider the witness's perception, memory and sincerity. I must consider the witness's ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness's interest or bias, if any, including animosity. I must consider the witness's evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidence from other witnesses and, finally, its consistency with reason and the probability of truth. The court can expect discrepancies and inconsistencies from time to time. Such is the nature of our human personalities and frailties. Some inconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole. I am able to accept some, all, or none of a witness's evidence. My failure to refer to any specific witness's evidence or document filed as an exhibit, or case law cited to me, does not mean that I have not considered that evidence or law in coming to my conclusions.

[149] The assessment of evidence that is required in coming to a conclusion in this case does not involve the choosing of one witness's evidence over the other. I am not required to choose between two competing versions of events. I am able to accept or reject some all or none of a witness's evidence.

[150] Finally, I keep foremost in my mind the dangers of eyewitness identification. It has been at the root of several wrongful convictions, because the witnesses giving it generally do so truthfully and with conviction. That is not to say that those witnesses can be truthful and honest in the belief of their identification yet wrong.

[151] There can be no greater injustice than to be found guilty of a criminal offence based on mistaken eyewitness identification. As well, I am acutely aware of the danger of falling into an acceptance of eyewitness identification because more than one witness identifies the accused.

[152] I must say at the outset that the evidence in this case was presented fairly, fully and thoroughly by both counsel. Ms. Stevenson at the conclusion of the evidence requested that she be allowed to make her submissions in writing after her receipt of the final days transcript that had to be prepared and that she be allowed to make her written submissions first, notwithstanding that the accused had called evidence. Ms. Cassavoy responded with written submissions of her own.

[153] On October 5, 2012, I received the written submissions of Ms. Stevenson and I was extremely impressed with them. Never in my over 6 years on the bench, nor in my 25 years of private practice have I seen such comprehensive, thorough, balanced and compelling submissions. Every area of contention in this case is identified, addressed, and argued with exquisite detail to the transcripts, the facts that are accepted, the contested facts and issues and the nuances of the testimony of the witnesses that testified in this case.

[154] Ms. Stevenson addresses the legal issues present fully and fairly. The nuances that are present in this case are met in her written submissions directly and with great insight, care and balance. She has, with an inordinate amount of skill, effectively written my judgment for me. Submitted to me is such compelling written argument that I struggle to find a better way of expressing it myself in these reasons for judgment.

[155] Having received Ms. Stevenson's arguments first, I knew that Ms. Cassavoy had a difficult row to hoe to address these extraordinary submissions. Yet upon receipt of her written submissions I found that they also were exceptional in identifying the issues in this trial, and weaknesses in the Crown's case. They too exhibit an extraordinary attention to detail, grasp of the issues and excellent written advocacy.

[156] I have read and considered very carefully all of the submissions of the Crown and the defence in this case. I have examined all of the exhibits, and reviewed the testimony in the case including reviewing again the digital recordings of the accused while he testified as well as reviewing my bench notes from the trial. My failure to mention any particular witness's evidence or refer to every particular submission made does not mean that I have not carefully considered that evidence.

[157] I am acutely aware that Ms. Cassavoy has skilfully and forcefully argued that there are significant weaknesses in the identification evidence in this case that should result in the rejection of the evidence of identification, and that the alibi evidence as well should cause me to have a reasonable doubt that the Crown has proved its case against Mr. Rice.

5.1 Credibility of Witnesses

[158] First I will commence with some general observations of the witnesses. I find that Christine Higgins and her daughter Jamie Marras gave their evidence in a straightforward truthful and direct manner. While both were nervous when giving evidence, with Ms. Higgins being so nervous at one point that she could not remember her present address, I generally felt that they were attempting to relate events truthfully and to the best of their recollection.

[159] Regarding the learning disability that Ms. Marras has, I did not feel that it impacted on the reliability or truthfulness of her evidence. She is a delightful young lady who has finished school and is working with children. Though she admits that it takes her longer to learn some things than other people and her mother said that she sometimes has difficulty relating times and distances accurately, I found her to be of average intelligence, and unbiased in her testimony.

[160] I also reject any suggestion that Ms. Higgins and her daughter colluded in their evidence, or that they influenced each other either directly or indirectly. Certainly they discussed the horrifying experience of that night and I am well aware that Jamie was present during her mother's 911 call and the identification of the assailant as being Mr. Rice, but I take into account that she also probably heard her mother's statement to the 911 dispatcher to the effect of 'what if it isn't him'.

5.2 Identification Evidence

[161] The red flags that go up in this case regarding the identification evidence are several. First the attack occurred in less than ideal lighting conditions in the middle of the night. The attack itself was a vicious unexpected and terrifying experience for Ms. Higgins and for her daughter. It was relatively brief in duration. There were no verbal communication between the witnesses and the attacker. Ms. Higgins said to the 911 operator "what if it isn't him?"

[162] As Ms. Stevenson fairly states in her written submissions:

It is conceded that there were circumstances operating against a reliable identification here: this was a terrifying event, she suffered significant blows to the head, there were no lights in her bedroom, when she followed the assailant from the room she had a limited opportunity to observe him and the lighting conditions although better than in the bedroom would still be described as poor, she did not have the opportunity to see his face other than in profile, and he left the home very quickly moving in a direction away from her.

[163] There were inconsistencies in the evidence that Christine Higgins and her daughter gave between their police statements and their trial evidence.

[164] The inconsistencies however in my view do not diminish the weight that I afford to their evidence.

[165] On the contrary, I found the evidence of the accused and his mother to be significantly wanting. Their evidence was replete with inconsistencies both external and internal and I was struck by the impression that both of these witnesses moulded their evidence to be seen in the most favourable light. As well, I found much of their evidence simply improbable. In short it did not have the ring of truth to it.

[166] Ms. Stevenson's written submissions are reproduced now to show the care that was taken in formulating them and their compelling nature. She states in relations to the evidence of Ms. Higgins as follows:

The question posed by Ms. Higgins on the 911 tape is at first blush concerning, "what if it wasn't him?" However, quite apart from the shock and distress that she was under, her relationship with him in the recent past had been better than good; she doesn't want it to be him! The evidence demonstrated that she was willing to keep her relationship a secret from her family because of the fact that she believes in him. If the only evidence of identity was her identification, this statement could cast into doubt her identification.

There is however, ample corroborating evidence to support her identification of Malcolm Rice.

Most significantly, Ms. Higgins found the Accused's boots on the porch after the event.

The Accused agrees that if his boots were seen by Jamie, this would have lead to some questions since the relationship was being kept a secret from her. Jamie confirms that she did not see the boots at any time and that the relationship was indeed a secret. Ms. Higgins' evidence that she would have noticed the boots on the porch and hid them from her daughter should therefore be accepted.

The Accused's evidence regarding the boots on the other hand is highly suspect. In cross-examination the suggestion made to Ms. Higgins was that he would leave his boots on the front porch and put them on to paint so he wouldn't get paint on his shoes. Ms. Higgins responded that they took off their shoes inside the house and painted in their socks. The Accused confirms this evidence as true, but says when she was not present he wore the boots to paint (despite the fact that any paint on the boots is agreed by both of them not to be paint from her house).

Contrary to what was put to Ms. Higgins, the Accused testified that he wore the boots to paint and kept them on a little landing inside the basement door. He had forgotten them there a couple of weeks before and had no idea how they ended up on the porch. It is difficult to believe that Ms. Higgins would not have gone down to the basement since moving into the house, to discover the boots and feel the need to hide them from her daughter. This location for the boots was never put to her in cross examination. The Accused also admits that he did not tell the officer about leaving the boots in this area during his video statement.

Ms. Higgins testified that during the attack she bit her perpetrator. It is obvious that she was speculating about where and how she bit him. This is unsurprising given how difficult it would be to take note of this while she was fighting for her life. Several times she indicated "I could be wrong" when she talked about where she thought she was biting. Although she indicated that she hung on she certainly didn't profess to have inflicted significant injury on her perpetrator. There was no suggestion of his having cried out in pain or that he left blood behind.

The defence may suggest that the testimony about the biting should raise a reasonable doubt because the Accused lacked any significant injury to his hand. It is evident from Officer Neglia's evidence that no visible blood was found at the scene (other than the blood on Ms. Higgins' forehead where there was some swelling). This is some limited information about the lack of severity of the bite inflicted. In other words that it was not intrusive enough to leave a blood trail.

It may also be pointed out that since the Accused is right handed he would have used the frying pan in his right and sustained any injury to his left. This was a struggle however and there are many people who can use both hands effectively. There is no evidence that the Accused would not be able to swing a frying pan as easily with his left hand as with his right.

The Accused did have some minor injury to his hand, albeit not identifiable as a bite mark. His explanation as to how that injury was sustained appears highly suspect given the inconsistencies in his description of the arrest by Officer Amore. The Accused claimed this was a work related scab injury that was broken open by the officer's rough contact (which contact became more egregious each time the Accused had occasion to describe it). It should be noted that the arrest was December 7, 2010, and the Accused testified he was not working at that time because his work shut down for the months of December and January. This means it was at least a week earlier if not longer that he could have sustained this injury at work.

When Ms. Higgins realized that she could not scream if she was biting the perpetrator she let go. Eventually she said "Malcolm its ok", and she repeated it, "Malcolm its ok." The attack immediately stopped and the perpetrator opened her bedroom door and left her room.

The Accused had knowledge of the layout of the home that a stranger would not have as a result of the time that he spent there. The perpetrator targeted Christine Higgins. He proceeded down the hall to her bedroom, despite the fact that Jamie's bedroom was closest to the entrance of the home and Jamie's bedroom door was left partially open.

There was no sign of forced entry. It is significant that the Accused was one of only three people (besides the locksmith) who access to the key. The locks had been changed on November 1, 2010. The Accused had one of the two keys in his possession for several weeks until Jamie moved in. He admitted that he had the opportunity to have a key cut if he had chosen to do so. No one else but Ms. Higgins and her daughter had access to the two keys.

It is curious that the Accused would be so adamant when he was asked if he had a key to Ms. Higgins' home. Given the nature of their relationship and the fact that she still had his key, one would have expected an answer like "I did have a key but I gave it back when I finished painting", rather than "of course not!" This is obviously not a major point but just one more little piece of evidence that did not have the ring of truth.

The testimony of Ms. Higgins that she locks her door every night before going to bed should be accepted. As she pointed out, it is just her and her daughter. Jamie confirmed the routine of locking the door and turning on the stove light. She recalled her mother doing it on this occasion. Admittedly, Jamie did not mention the stove light in her statement. Jamie testified that she followed Malcolm Rice and locked the door behind him when he left. Ms. Higgins' testified the only conversation between them before she called 911 was to "yell for her to lock the door."

Given that it was the first week of December, Ms. Higgins' evidence that the windows were closed and locked should also be accepted. No windows were found open or unlocked by police. It is difficult to accept that a random stranger came through the window, closed it behind him, and then left through the front door. Further, if this was the case, Jamie and Ms. Higgins would have seen that person unlock the door in order to leave. Yet the door was clearly unlocked when Jamie followed behind and locked it.

While the Accused stated that he opened the windows to paint he also confirmed that he closed them afterwards and agreed he probably would have locked them.

While both Ms. Higgins and the Accused described the relationship in glowing terms leading up to December 6, 2010, it is evident from the totality of the evidence, including that of the Accused, that he was upset about the relationship being kept a secret. He also referred to an "argument," although he later rejected that word for "discussion," about the fact that she had to return to work for an hour.

In the Accused's video when asked if the argument was about her seeing someone else he responded, "Not totally, no." This is an admission that her seeing someone else was part of what they discussed. In his trial testimony he admits questioning her on December 6 about whether her co-workers knew about him. He also admits that he told her he would bring her a coffee and a kiss the following day (curious given his evidence that his car was completely inoperable at this point).

When first asked whether he spoke about where she goes for a cigarette at work or of a burned out van in the parking lot, he said he could not recall. The lack of direct contradiction on these topics supports the accuracy of Ms. Higgins evidence. Further, this is evidence suggestive of the Accused having carried out some surveillance at her workplace.

The Accused did corroborate the account of Ms. Higgins in so many respects regarding the events of December 6, 2010. Thus her testimony that he called her, that she could tell he was in a bad mood, that she told him that she did not want to talk to him when he was like that, that she hung up on him and did not respond to any further texts he sent, should be accepted (even in the absence of the cell phone records). The Accused even left open the possibility that he had sent the final text, the one she did not see until the next day, asking her if she was still up.

The Accused's apparent jealousy and anger over a perceived betrayal or rejection on her part could be viewed as some evidence of motive. Given this evidence, certainly it cannot be said that there is proved absence of motive.

[167] I accept and adopt the submissions of Ms. Stevenson as being logical, reasonable and supported by the evidence.

[168] One only has to listen to the upset, terror, and the confusion that is obvious on the 911 recording of Ms. Higgins to know that the utterance of 'what if it isn't him' is not to be taken as an expression of doubt but rather one of confusion, hope or disbelief. The fact that she uttered this expression in those circumstances in my view does not serve to diminish the weigh of her identification.

[169] Again this explains, in my view, the absence of any significant marks that could be attributed to a bite on the accused's hand. This was a situation that was unfolding quickly and terrifyingly and ones sense of time and the pressure that was applied to the bite could be reasonably compromised in Ms. Higgins' mind. In other words her bite may have been more fleeting than recalled and may not have resulted in visible injuries to Mr. Rice.

[170] As well, in regards to the evidence of Jamie Marras, her submissions are again direct, to the point, logical and I adopt them. I reproduce them here as follows:

Jamie had a better opportunity to observe the perpetrator of the assault than Ms. Higgins. She was standing outside her mother's door when he exited the room and had to go past her. Although she was likely in shock, as she testified, she made eye contact with the perpetrator twice and said she recognized Malcolm Rice. Although the lighting was still poor (albeit better than in the bedroom), she was in close proximity to him following behind and locking the door.

Jamie too was very familiar with Malcolm Rice having lived with him for approximately a year. Again, this is not the eye-witness identification of a stranger with an opportunity for only a fleeting glance.

Although there was a minor inconsistency in her evidence between her police statement where she said she saw Malcolm standing inside the doorway and her testimony which confirmed that she saw him outside the doorway, this minor inconsistency should not raise concern about the reliability of her evidence. Neither should the estimates of time that she gave for the duration of the eye contact. Witnesses without a learning disability routinely estimate time with a lack of accuracy, in this case Jamie has a learning disability which affects her ability to gauge time and distance. It is clear that her learning disability is not such that it would make her a generally unreliable witness.

It is anticipated that the Accused might raise the issue of bias, given the evidence that although Jamie once loved Malcolm Rice, and she no longer likes him. There was evidence that she would have been concerned and upset to find out that her mother was seeing him again. Clearly Jamie was being honest in admitting that she does not like Mr. Rice. She did not, however, exhibit the kind of blatant bias (such as that demonstrated by Wendy Rice) that could cause a court to discount her evidence on this basis.

It is further anticipated that the Accused may suggest an opportunity for collusion between Christine Higgins and her daughter. Or, in the alternative, a tainting of Jamie's evidence on the basis that she heard the 911 call and her mother use[d] the name Malcolm Rice. Given that she was present with her mother for the duration of the 911 call that would mean that she also heard her mother ask "what if it wasn't him?" Certainly there was no evidence of any pressure imposed upon her by her mother, to say that she saw the Accused rather than being free to say she didn't because it was too dark or because she was too upset, if that was the case.

Like the identification by her mother the identification evidence of Jamie Maras, is one piece of evidence that standing on its own might not be sufficient to satisfy the court beyond a reasonable doubt on the issue of identity, but in the context of the totality of all of the evidence in the case, is one piece of sufficiently reliable evidence to be considered along with all of the other evidence.

[171] Again if find myself unable to disagree with any of these submissions and I find them logical, compelling and supported by the evidence and I adopt them in their entirety.

5.3 Demeanor and After-the-Fact Conduct

[172] Ms. Stevenson's submissions regarding the demeanour evidence of Mr. Rice during his videotaped police interview are accepted as helpful, but not determinative. I was more interested in Mr. Rice's contradictory evidence given in the police interview. Nonetheless the submissions are again worthy of reproducing in this judgement as helpful and thoughtful points. Ms. Stevenson submits that:

During the course of the video statement the Accused was asked by Detective Constable Vatcher why he was so calm. It was pointed out that he did not express any concern for the well being of Christine Higgins until p 23: "The whole time I've been arrested, I'm trying to find out how she's doing, nobody's telling me anything." Further that he did not state until the bottom of p 31 "That kid was my life, was she harmed in any way?" (Aug 16/12, p 21,line 2 – 5, p 22, line 25-30)

It is obviously dangerous, and contrary to the authorities, to put any significant weight on the Accused's calm demeanor. This is a highly subjective exercise and the probative value of such evidence is outweighed by the prejudicial effect. It is, however, permissible to examine the conduct of the Accused after the fact, specifically the inconsistencies in his evidence regarding his dealings with Officer Amore and the inquiries he did or did not make about Jamie. This is evidence that further tells against his credibility. Although the Accused told Officer Vatcher he "flipped in the car", this was not supported in his own evidence at trial or in the evidence of Officer Amore.

The Court should consider that on page 31 of the video, the Accused asks Vatcher if Jamie was harmed in any way. Yet the Accused testified that Officer Amore had already told him the daughter was unharmed. This was not supported by the evidence of Officer Amore and was not put to him in cross-examination. This court should find that the Accused was not told this by Officer Amore; if Amore had told him the daughter was not harmed there would have been no need for him to ask Vatcher about Jamie.

The Crown maintains that the Accused did not ask Officer Amore about Jamie because he didn't need to. He knew he hadn't touched her. He only asked Officer Vatcher about her when it became clear to him that he was expected to.

5.4 Alibi Evidence

[173] With respect to the alibi evidence led by the accused, I find that Ms. Stevenson's submissions regarding this aspect of the case are particularly compelling and I accept her reasoning in full.

[174] Ms. Stevenson submits as follows:

This is not a case where the Crown claims to have proven a fabricated alibi. The only evidence that could potentially be considered "separate from the evidence that contradicts or discredits the alibi" is the assertion that the Accused's mother told him she came down in the night and saw him sleeping on the couch. Although the Accused told Officer Vatcher that his mother had told him this the next morning, and repeated this assertion in court, Wendy Rice flatly contradicts him. She did not do this nor did she tell him that she did.

Rather than asking the court to find that this is evidence of a fabricated alibi and therefore after the fact conduct capable of leading to an inference of guilt, the Crown asks the court to reject the alibi evidence. The evidence of alibi appears so contrived and flimsy, so internally and externally inconsistent that it is not evidence capable of being relied upon to either establish alibi or even to raise a reasonable doubt alone or in combination with the other evidence.

The Accused's alleged alibi can be reduced to the following elements:

• Wendy Rice was feeling ill and asked the Accused to come and look in on her;

• His car which had been dying a slow death reached its end while on route to his mother's house;

• Feeling compelled to check on his mother in her ill condition the Accused left his car at the Hopedale Mall and took a cab across town to his mother's;

• He did not check on his mother although he claims to have stood outside her door and been able to determine from there that she was okay;

• He spoke with Ms. Higgins for a significant period of time on the phone before falling asleep on the couch;

• His cell phone battery was dead so he did not receive the phone call from Officer Lovett just before 2am;

• He woke the next morning, spoke to his mother very briefly, and left by cab almost immediately being gone by the time that Officer Hardie arrived at 8:47 am;

When the evidence surrounding each of the above elements is examined, it is seen to be internally and externally inconsistent while offending common sense and ordinary life experience.

The Accused and his mother gave inconsistent evidence regarding the nature of her illness. The Accused told Vatcher in his video that his mother was affected by lesions on her arms that might be cancerous. His mother testified that the issue was a heart murmur and that she made that clear to her son when she asked him to come. They were also inconsistent on when the arrangements were made for the Accused to come and on whether it had been two weeks since he had been asked or only a couple of days.

Coincidentally, the Accused's car was left in a shopping mall parking lot only a short distance from the complainant's home. Although the Accused claims that the car could not be driven for more than five minutes, he admits driving it much farther than that the day before to Canadian Tire. He admittedly does not mention the state of his car to Ms. Higgins during their telephone conversation and even says he will bring her coffee to work the next day (without making it contingent on whether he can get his car working). Although the Accused clearly had the ability to produce documentation to demonstrate that his car was towed and scrapped, no such evidence was forthcoming.

Despite his apparent financial difficulties ( ie he couldn't afford to fix his car ) the Accused says he took several taxis, paying cash, across town and back, in order to check on his mother. He claimed that he could not rely upon his sister to check on his mother because although she lived with Wendy Rice she was at her boyfriend's most of the time. The Accused neglected to mention that he had two sisters and a brother in law living on the same street as his mother, who could obviously have been asked to check on Ms. Rice. It appears they had daily contact with her in any event, given the evidence regarding her cooking, cleaning and babysitting for them. Indeed, Wendy Rice testified that she was "out with one of my daughters shopping" on the morning of December 7, 2010. ( Aug 16/12 p 52, line 5-6)

The Accused claimed that he was hoping to get a ride from his sister but she wasn't home. Again, making no mention of his other sisters close by whom he could have asked to assist. It is also interesting to note that while he said his mother did not have a car and did not drive, she testified that she drives and occasionally borrows a car from her daughters or son in law.

While the Accused had to go through a significant amount of difficulty to get to his mother, all for the purpose of checking on her, when he gets to the home he does not even speak to her! He admits that he could have accomplished the same effect by a phone call to her. It is also very curious that he would not mention the evening's drama and the fact that he was at his mother's house to Ms. Higgins on the phone.

While the Accused claims to have stood outside his mother's door on arrival and to have heard her sleeping, her evidence was that there was a light on in her room and she was either reading or had fallen asleep with the light on. When pointed out to her that the light might be visible under the door to anyone standing there, she suggested that this was a very small light that would not likely be visible.

Wendy Rice was of course highly inconsistent in her evidence regarding what she heard from her son and when. She told Officer Vatcher that she heard him that night "it could have been around 11 pm" and made no mention of hearing him snoring during the night, only that she saw him on the couch the next morning around 9am. This of course cannot be true as the door knock from Officer Hardie was at 8:47 am. She then prepared a written statement for Brendan Neil indicating that it was around 9:30 pm that she heard her son enter through the front door adding that she woke up on a couple of occasions during the night and heard him snoring on the couch. In the courtroom she was inconsistent regarding when she was asleep and when she was awake.

The Accused and his mother both testified that the Accused left almost immediately the next morning because he was anxious about leaving the car at Hopedale Mall. This evidence did not have the ring of truth! But of course this had to be their evidence given the presence of Officer Hardie at 8:47 am knocking on the door.

The Accused and his mother gave inconsistent evidence regarding their communication by phone that morning before the Accused was arrested. The Accused testified that he checked his cell phone messages by pay phone at Hopedale Mall and had a message from the police. He stated that he called the police back immediately and did not call his mother first. Wendy Rice, however, had told Officer Vatcher that her son called her at 9:47 am. The dispatch records show that he called into the DV unit at 10: 09 am. This means that he clearly had the opportunity to speak with his mother about his alibi before his arrest and the Court should find that he did so.

[175] Again, I find Ms. Stevenson's reasoning compelling, logical, and amply supported by the evidence and the impressions that I formed of the witnesses in this trial and I adopt her interpretations and conclusions in their entirety. Her submissions regarding the accused and his mother's credibility are adopted by me as being reasonable, supported by the evidence, and echoing the impressions that I had of each of these witnesses.

[176] Ms. Stevenson submits and I adopt as part of my reasons the following:

Credibility of the Accused Generally

The Accused's evidence was rife with inconsistencies both internal and external. It frequently did not have the ring of truth and offended common sense. He evasive both in his video statement and in court.

The Accused testified that his police statement was 100% true when clearly there were provable lies.

One example can be seen in the video when he says his car has been at the Hopedale Mall for "a few hours I guess;" that was clearly not true. On his evidence the car had been there since 9 pm the night before.

He also stated in the video that he had abided by his no contact conditions for 12 months, after saying a few moments earlier that they had only been out of contact for "a month and a half maybe". The evidence of his mother and Christine Higgins demonstrates that it was his original statement that was the truth.

Credibility of Wendy Rice Generally

Ms. Rice's evidence suffered from similar frailties to that of her son's. Her evidence was highly inconsistent both internally and externally. In addition she exhibited a strong bias in her son's favour. She was clearly prepared to exaggerate and speculate in order to further his cause.

At one point she appeared to be thinking back to December of 2010 (from August of 2012) to answer when her son had last been to her house before December 6, 2010. When confronted with the fact that she appeared to be guessing, her response was "I'm guessing but it's an educated guess."

Despite telling Ms. Cassavoy in chief that she did not have anything in her house that would tell her whether anyone came in during the night, in cross-examination for the first time she mentioned a childproof doorknob that apparently makes so much noise that one would hear it from upstairs even asleep. It is highly suspect that this was not mentioned to Officer Vatcher or at the very least included in her written statement for Brendan Neil, if not in examination in chief. Her response that "I'm kind of thinking that I did say that to the police officer… I'm trying to think back, okay"….was wholly unconvincing!

Ms. Rice was unprepared to concede that her son might have acquired such an object as Exhibit 8 without her knowledge. Despite being given numerous opportunities to concede that perhaps she might not know every single item in his house, she remained firm. This did not have the ring of truth and offends common sense.

5.5 W.D. Analysis

[177] In Ms. Stevenson's submissions regarding the WD analysis, again I could not write it better. I agree absolutely with her submissions which are as follows:

The alibi evidence should not be accepted and is not capable of raising a reasonable doubt. The question then becomes whether on all of the evidence the court is satisfied beyond a reasonable doubt. The Accused will say that given the lack of forensic investigation and the tunnel vision of the police, the Court should have a reasonable doubt on the identity of the Accused.

While the forensic evidence in question may have taken this case from proof beyond a reasonable doubt to overwhelming evidence of the guilt of the Accused, it is not required to prove guilt given the totality of the evidence.

On the totality of the evidence, the defence theory has to be the following:

• A random stranger carrying a frying pan, just happened to find the door unlocked; or

• A random stranger entered through a window closing the window behind him, and leaving through the front door (unlocking the door unnoticed in the presence of the complainants before he left by the door );

• The stranger by-passed Jamie's room, despite it being the first room off the hall and her door being open, to find Ms. Higgins in her room with the door closed;

• The stranger found the location of Ms. Higgins bed in the dark and beat her over the head with a frying pan, stopping when she twice used the name Malcolm and leaving without any sexual violence or theft of property;

• Mr. Rice's boots were mysteriously moved from the basement landing where he says he left them (and where they apparently went unnoticed by Ms. Higgins since the day she and Jamie moved in) to appear on the porch in the scenes of crime photographs;

There may be speculation that since we did not hear from all of the officers who attended perhaps one of them found the boots on the landing and put them on the porch where the SOC officer captured them in the photo or perhaps the SOC officer put them there.

In addition to the above, it would also have to be accepted that the Accused was beset with a long string of highly improbable coincidences, in the hours leading up to his arrest:

• the argument with Ms. Higgins and the "ill feelings" between them when they hang up;

• the break down of his car only a short distance from the crime scene requiring his car to be left in the mall parking lot a short distance from the crime scene (as an aside if he was so concerned about his car being left on private property and being towed one wonders why he simply didn't leave it parked at the side of the road where it broke down or somewhere close by if no parking was permitted there)

• his mother is asleep when he arrives at her home so there is no communication between them;

• he neglects to mention to Ms. Higgins the break down and cab ride during their 45 minute conversation;

• he is heard but not seen by his mother until the morning;

• he is unable to catch a ride from his sister despite the fact that his mother and sister go shopping a short time later;

• he leaves so quickly in the morning that he misses the door knock by police by only a few minutes

• a dead cell phone battery prevents him from getting the message from police until much later;

• he bears a strong physical resemblance to the perpetrator such that he is mistakenly identified as the perpetrator by his girlfriend and her daughter.

[178] I note that Ms. Cassavoy disagrees with many of the above points but I find them logical and compelling. It is true that there is no direct evidence that the complainant or her daughter did not see the intruder unlock the front door on his way out but it is noted that they were not questioned closely on this and even in their heightened state of anxiety I would have expected one or both of them to have noticed the intruder unlock the door if in fact that person had gained entry through a window. In the lowered light of the kitchen, with the intruder no doubt being under some stress themselves and being unfamiliar with the door locking mechanism, I would have expect a stranger would have fumbled even momentarily to unlock and unfamiliar door to make good their escape.

[179] As well I find it illogical that Mr. Rice would be so concerned about getting back to his car the next morning. One would have expected that it would have been more likely to have attracted attention and possible towing during the middle of the night alone in the mall parking lot than it would have during the daytime when the parking lot is considerably more full. Mr. Rice's evidence concerning his car conveniently dying that evening does not have the ring of truth to it. The fact that he didn't tell the complainant about these problems that evening in their not brief telephone conversation and the fact that the didn't tell her he was staying at his mothers house and that the 'coffee and a kiss' promise that he made may be contingent on his availability of transportation all strike me as corrosive to his credibility and not making sense.

[180] Regarding the defence suggestion that the police did not check Mr. Rice's residence to see if he had any similar frying pans in it I think that is as well a speculative venture. Mr. Rice may have bought the frying pan used in the attack for a variety of reasons, and at any time prior to the attack, and to say that he did not buy a set or that there are not other similar pans in his residence does not create a concern for me.

[181] The 'evolution' of Jamie Marras' evidence as submitted by Ms. Cassavoy does not concern me. I view any additions to or modifications to her evidence to be the product of greater attention to detail being allowed to her after her statement given shortly after such a traumatic experience. Any mala fides attributed to Ms. Marras I absolutely reject such that because of her dislike of Mr. Rice and her wish that her mother would not resume a relationship with him that she would be inclined to give evidence contrary to his best interest. I also reject any suggestion that her mother influenced her identification of Mr. Rice in a direct or indirect way. Finally the suggestion that Ms. Marras has intellectual deficiencies that would negatively impact her ability to accurately and truthfully recall what she saw that evening are not accepted by me after having closely watched her testify in this very stressful trial for her.

[182] I must respectfully reject Ms. Cassavoy's assertions that the police had blinders on and did not conduct an exhaustive investigation into any other male acquaintances of Ms. Higgins, or her male colleagues at work or in the neighbourhood. To do so in my view would have been a waste of police resources.

[183] I do agree that with the concerns with the identification evidence in this case that I have addressed, and the lack of some follow up by the police regarding the mechanical condition of the accused's car and the lack of other forensic evidence linking the accused to the frying pan, that the Crown has nonetheless succeeded in proving the case beyond a reasonable doubt.

[184] Had some of those factors of concern not been present, I agree that the case would be classified by me as overwhelming evidence of certainty of conviction. That is not the standard that the Crown must meet.

[185] Mr. Rice's alibi is not worthy of belief by me although I am not prepared to say that it is a fabrication and that I have used it as evidence against him. It is simply disbelieved evidence that has been rejected by me in my analysis.

6. Conclusion

[186] Examining all the evidence in this trial and considering it as a whole I have reached what is in my mind the inexorable conclusion that the accused's evidence is not worthy of belief, and I do not accept it. It does not raise a reasonable doubt in my mind. Examining the evidence as a whole, I am very confident that the Crown has proven all of the essential elements of these charges beyond a reasonable doubt and there will be a conviction on both counts.

[187] I am of the view and find as a fact that Malcolm Rice, driven by jealousy or some other factor drove his vehicle to the victim's home on that evening after she hung up the phone on him. He took a weapon with him, which was the frying pan. He went to the door and gained entry by the use of a key that he had copied for the purpose of 'keeping tabs' on Ms. Higgins.

[188] He removed his boots at the front door to make his movements in the house quiet. He then went down to Ms. Higgins room, bypassing Jamie's room and proceeded to enter her room and attack her.

[189] He was taken aback by her comment "Malcolm, it's okay" and he abandoned his attack. He then left the room and was seen by Jamie, who was well familiar with him having lived with him before for almost a year.

[190] He was in a rush to leave the premises and did so without putting on his boots. I think he made good his escape by driving away in his car.

[191] He then either went home and retrieved other footwear or had other footwear available to him in his car.

[192] He then abandoned his car at the Hopedale mall and took a cab to his mother's house hoping that an alibi would be available to him. Alternatively if his car was not driveable, could have walked or used some other means of transportation to go to Ms. Higgins home and commit the assault and then make his way to his mothers after going home to get some shoes.

Released: November 23, 2012

Signed: Justice Stephen D. Brown