CITATION: R. v. McCrady, 2017 ONSC 990

COURT FILE NO.: CR-15-0075

DATE: 2017-02-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen,

A. Sadler, for the Crown

• and -

Michael James McCrady

D. Kiesman, for the Accused

Accused

HEARD: November 29, 30; December 1 and 2, 2016, at Thunder Bay, Ontario

Platana J.

Reasons For Judgment

[1] Michael James McCrady is charged with break and enter a certain place to wit: a dwelling house, robbery, wounding and thereby committing an aggravated assault, unlawful confinement, uttering threats, and breach of probation.

[2] Throughout the course of the trial, it was admitted that on July 17, 2013, Mr. McCrady had been placed on conditions including the statutory condition to keep the peace and be of good behaviour. It is agreed that he was bound by this order and, at the time of the offences charged in this indictment, was bound by those conditions.

[3] On May 14, 2015 at 8:55 p.m., police were called to a residence at 88 Banning Street in the City of Thunder Bay. On arrival Constable Jesse Harden observed three paramedics attending to a male, identified as Troy Bichon, lying outside covered in blood. He went into the house but did not touch or move anything. No statement was taken; however, the officer’s notes said Mr. Bichon said that he did not know who had assaulted him.

[4] Constable John Deagazio, on arrival at 88 Banning, saw a gas can outside and a broken window. He went inside and saw blood on the couch and in the kitchen area. He checked the basement and both floors of the house. A barrel of a gun was pointed out to him by his partner. Neither touched it.

[5] Deirdre Rice was with the accused that evening. She said that at one time she made a 911 call to the police. The two had a fight and the accused took her keys and car from her and drove away. They had earlier been at the residence of Chris McKay where all three consumed alcohol and used crack cocaine. She acknowledged that at that time she was in relapse from attempting to withdraw from a crack cocaine addiction. She was clear in her evidence that the accused consumed crack cocaine and alcohol that day, and that it was possible they had also done so the day before.

[6] Chelsea Ibey lived at 82 Banning. She heard a loud noise outside, like a window being smashed. She saw a gas can coming through a window. She saw someone run out of the front door of 88 Banning carrying a large television which he put into the back seat on the passenger side of a four-door black vehicle parked in front of her building. She described the man as wearing red pants, a white shirt and a baseball cap. He then went back into the house.

[7] Fifteen minutes later, she saw two people come out. One was the same man she had seen who got into the passenger side of the black vehicle. She stated that as the first man got into the car, the baseball cap came off and she described him as having “mullet” hair on the sides of his head. She described him as being bald, wearing black pants and no shirt. He had what looked like a screwdriver in his right hand. The second got into the driver’s seat. The car then drove away.

[8] In cross-examination, she again stated that it was the person wearing red pants who carried the television from the house into the car. She made the 911 call.

[9] Constable Jesse Lepere is a Forensic Identification Officer with the Thunder Bay Police. He attended 88 Banning and took photos which he placed on a disc, filed as Exhibit 1. He noted a shotgun in plain sight standing in a corner behind the couch (Exhibit 1, a photograph 064) which was loaded with three shells, and no locking mechanism.

[10] He also took the photos of Mr. Bichon (Exhibit 1) showing the injuries caused. Filed as Exhibit 4, on consent, is a Discharge Summary from the Thunder Bay Regional Hospital. Injuries are described as:

• Assaulted with blunt force and stab wounds, injury severity score equals 22.
• Stab wound to right anterior thigh with about 25 percent blood volume.
• Fracture of ethmoid sinuses in the base of the skull.
• Displaced fracture of right mandible, subcondylar.
• Minimally displaced facial features of the right maxilla, including the anterior wall and the anterior part of the right zygomatic arch.
• Multiple lacerations and abrasions.
• Sequelae of lower leg anterior compartment syndrome from previous injury May 4, 2015.
• Nicotine dependence (smoker).

[11] The injuries are all depicted in the photos in Exhibit 1.

[12] He took swabs from Mr. McCrady, sent various exhibits for sampling. Reports from the Centre of Forensic Services were filed, on consent, as Exhibit 2. (In light of the subsequent testimony of the accused, there is no real issue as to the presence of the accused at the residence that day.)

[13] Troy Bichon lived at 88 Banning. On May 14, he was recovering from surgery for a work-related injury and was in a cast and using crutches. He heard a knock, answered the door while on his crutches, and saw two men waiting outside, wearing hoodies, with their backs to him. He opened the door saying, “Can I help you?” at which time they turned around. He recognized the accused. He had known the accused for approximately eight months and had an altercation with him three weeks prior. The other was unknown to him.

[14] The accused said to him, “We need to talk,” and walked towards him up the stairs into a porch area. He stated the accused then backed him into the house, into the living room on his crutches while the other man stayed outside. Mr. Bichon stated he had not agreed to let the accused in. He sat on the couch while the accused stood over him. Mr. Bichon asked him, “What’s the problem?”, to which the accused responded, “You’re a rat,” which he understood to mean he was a “snitch.” He had no idea what the accused was talking about. The accused then ripped his shirt off and called, “Chris, get in here.” The other man came into the house and locked the door. The accused said “We want one thousand dollars before we leave here.” Mr. Bichon replied he had no money, but said, “here’s my bankcard.” The other man (later identified as Chris McKay) then said, “We’ll break your other fucking leg.” The accused stated, “That’s nothing compared to what I’m going to do with him.”

[15] Mr. Bichon stated the accused began hitting him with his fists, and threw him onto the floor. Mr. Bichon then felt something and said, “Ouch. Your friend just stabbed me.” More punches were thrown, and Mr. Bichon was pushed back onto the couch. The two started looking around and Mr. Bichon said, “Take what you want.”

[16] He was then able to get up from the couch and out into the porch. The accused then threw him part way through a porch window, and then pulled him back into the porch. He then pulled him back into the living room, and threw him under the kitchen table. The two men smashed him with a small bat. One of them – he cannot say which – said, “Let’s just cut his fucking throat.”

[17] He next remembers waking up outside on the grass.

[18] In questioning by the Crown, Mr. Bichon identified pictures of a steak knife box with six knives and a fork shown in the kitchen (photos 195-727, Exhibit 1). He also acknowledged that there was a shotgun behind the couch in the living room. He stated that it was kept empty, with the trigger locked. He stated that he was not aware that his firearms permit had expired. Police evidence is that when the gun was located in the residence at the time of a subsequent search, it was standing against a wall, the gun was loaded with no trigger lock. Mr. Bichon testified that he kept the gun there because three weeks prior to this, he was at home when he heard someone outside smashing the windows of his jeep. He says he made no effort to get the gun as he knew it was not loaded. He remembered the gun being behind the couch on the floor, and had no idea how it came to be leaning against the wall in a corner and loaded when found by the police.

[19] He also testified that his cell phone in a grey case marked with Montreal Canadiens was taken by the accused. He acknowledged that the phone bore a background “Support 81,” meaning “support Hell’s Angels.” He stated that he “Knew a few,” and had done some work on some houses for them.

[20] The television from the living room was missing when he came home from the hospital after being treated for his injuries.

[21] In cross-examination, Mr. Bichon did not agree that there were periods of blackout, but that it “could be possible.” He denied being a drug dealer, but did agree that he has friends in the Hell’s Angels. He agreed that in a statement to police, he said to the two men, “If you’re here for money, drugs or booze, just take it.”

[22] He stated that his previous incident with Mr. McCrady was not drug-related. He denied ever threatening Mr. McCrady or sending him texts threatening his family. He denied the damage to his Jeep was drug-related.

[23] He stated again that the gun was not loaded and that he had put it on the floor behind the love seat. He had no reason to disagree with police that the gun was loaded, but that the only person who could load the gun needed a key.

[24] He disagreed with a suggestion by defence counsel that when he first answered the door, he made a motion as if to invite them in.

[25] He denied there was any conversation about drugs.

[26] He was cross-examined on his evidence given at preliminary. He acknowledged that he had then testified that it was possible that he could have loaded the gun on May 14. A transcript of the preliminary hearing was filed as Exhibit 5. In the course of this trial, he adopted his previous testimony that the gun could have been loaded during the incident, but that he really does not remember what interaction he had with the gun on May 14.

[27] Certain facts were put to him. He disagreed that:

• There was any money owed.
• He threatened Mr. McCrady.
• He sent threatening texts to Mr. McCrady the day before.
• He let Mr. McCrady into the residence.
• He was not using crutches.
• He took the gun and threatened the accused.
• The accused called the second person in after he screamed “ouch.”
• The accused never threatened him.
• He pointed the gun at Mr. McCrady and that is when the struggle between the two began.
• He pointed a piece of broken glass at the accused.

[28] Kenneth Johansson was driving with his wife when he saw what he believed to be an impaired person, noting a vehicle ahead of him driving slowly and all over the road. He called 911. He stayed behind. At one point, he saw the vehicle, which he thought was a Ford Focus, and two men get out. One had a shaved head, wearing no shirt, the other with one side of his head shaved. The driver was the one with a shaved head. He thought he could see the silhouette of someone in the back seat. He saw nothing else in the back seat.

[29] Constable James Lorestz of the Thunder Bay Police responded to the call of a possible impaired driver and began looking for the vehicle. He located a grey Ford Focus in front of 509 McTavish. A male jumped out of the driver’s side, yelling obscenities and seeming irrational. He was identified as Christopher McKay. He took off a red baseball cap, and shirt, and began to pull down his black jogging pants. He threw his clothes to the ground. The officer described his behaviour as “bizarre.” He was very uncooperative and appeared unstable. The officer noted a pronged fork on the driver’s side floor of the vehicle.

[30] Constable Trevor Lind was at 524 McTavish at 9:26 p.m. looking to locate a male described in a dispatch call. He saw a male and followed him to 537 McTavish and placed him under investigative detention having identified him as the accused. He conducted a search for officer safety and located a cell phone, possibly more than one, and a screwdriver in the man’s pockets. He was then identified as the accused and later arrested by another officer. Constable Lind later went back to 524 McTavish and received a large black television from the officers.

[31] He saw no injuries on Mr. McCrady.

[32] Constable Bradly Bernst was involved in arresting the accused. On booking him, he noted that one of three cell phones which had been seized had blood on it. It had a Montreal Canadiens logo as a screensaver.

[33] On May 14, Daniel Wiebe, living at 511 McTavish observed a young man wearing a white tank top take a large flat screen television out of a vehicle and carry it into 524 McTavish. He then came back, and while the police were engaged in conversation with another male who was being very uncooperative, the man in the white tank top left the area.

[34] Thunder Bay Police investigator Ian West attended at 524 McTavish at 12:44 a.m. and seized a television which was later identified as having come from Mr. Bichon’s residence.

[35] Lindsay Jonasson stated that a television was brought to her residence at 524 McTavish by two men, one of whom she knew as Michael. He was wearing a white tank top with blood on it. She helped him clean up and the other man then helped Michael bring the television into the house from the porch.

[36] She acknowledged she was on crack cocaine that day.

[37] The accused, Michael McCrady, testified that he met Mr. Bichon through an ex-girlfriend. Mr. Bichon asked him if he could sell drugs for him. He agreed, but then used it all himself. At one point he owed Mr. Bichon for drugs and could not pay. He ran into Mr. Bichon at a friend’s house and they started arguing. He said he felt threatened, so he punched Mr. Bichon, and left. A few days later, he says Mr. Bichon began sending him threatening messages, such as, “I know where your mother lives” and “something would happen.”

[38] He testified that on May 14, he woke up at his sister’s place, knowing he had violated his probation by not staying at his mother’s. He texted Deirdre, his girlfriend, to come and pick him up so he could take her to detox and he would then keep her car. He said that she wanted to “get high” one more time before going to detox, so they drove around looking for drugs. He testified that at one point, she got out of the car and took the keys. He grabbed the keys from her. He said he needed to go to Troy’s, that he “needed to settle this.” He said he was referring to the drug debt and the text threats.

[39] He stated that he went to get Chris McKay to go with him, because he did not want to go to Troy’s alone. He said Chris was his only friend at the time. His evidence is that they went to Troy’s house, Troy opened the door, and he said to Troy, “We need to talk.” Troy replied, “I’m sure we do,” and gestured for him to come in. Troy said, “your friend can wait in the porch.” They walked in, he sat on the love seat and Troy on the couch. He said to Troy, “we have to talk about what’s going on.” He said he told Troy the texting had to stop. He tried to explain about the money. He testified that Troy reached down and pulled what he believed was a shotgun from between the two couches. He said Troy pointed it at him, not aiming it, but had the gun on his legs. The accused testified that he then yelled, “Chris get in here.” When Troy turned away, the gun moved, and he moved and tackled Troy. He said then Chris came in and started hitting Troy. The gun fell onto the couch. He pulled Troy off the couch, and he fell onto the coffee table, and the floor. The accused said he was then on top of Troy and Chris went to kick him. Chris said, “I want $1,000.00.” Troy replied, “If you’re here for drugs and money, take it.” Chris started going through the house.

[40] Mr. McCrady stated that he said to Troy, “I just want to talk.” He stated at one point Troy seemed calm. Mr. McCrady stood up and told Chris to get out. Troy jumped at him again and seemed to go for the gun. The accused pulled Troy towards the porch, and Chris came running back and body-checked them with Troy crashing into the window, so the accused pulled him back.

[41] The accused said that he was still afraid of Troy so he began hitting him in the face. He said Troy got up, went back toward the gun, so he put a screwdriver in his hand to make his hand harder and hit him as hard as he could. Troy then stayed still. The accused said the gun was close to Troy.

[42] He left and went to the car with Chris. They began yelling at each other, blaming each other. They began driving. He said he needed to get the blood off him, and knew where he could go to get cleaned up at Lindsay Jonasson’s. On the way, they pulled over, got out and began arguing. They then drove to Lindsay’s where a car pulled up behind them, and he heard “You’re under arrest.” He said Chris wanted him to “bring stuff into Lindsay’s.” He said no, and they argued again.

[43] He stated that when he arrived at Lindsay’s door, he said “I think I just killed someone.” He went into the shower, heard Lindsay yelling, and he saw Chris at the door with a television in the porch. Lindsay said to him, “You’ve got to get the hell out of here.” She gave him clothes, including a white tank top. He went outside, saw Chris being arrested, and he walked away.

[44] In cross-examination, he acknowledged that he had been with Deirdre, and that he drove away in her car.

[45] He stated that he was in the house when Chris put the television into the car.

[46] He stated that he owed Troy Bichon $2,200.00 for one ounce of cocaine. He repeated that Mr. Bichon had sent him texts threatening to hurt he and his mother, and that he was afraid because he had seen Mr. Bichon wearing Hell’s Angels gear.

[47] He said that Mr. Bichon was not using crutches when he came to the door.

[48] He said that it was Mr. McKay who stabbed Mr. Bichon while he was holding him. He said the rest of Mr. Bichon’s injuries were caused by he and Chris, and that the injuries to his face were caused by he and Chris hitting him as hard as they could. He said they beat him up because he had a gun.

[49] He denied that he was there because Mr. Bichon was “a rat, and rats get hurt.”

Defence Submissions

[50] Mr. Kiesman submits that the facts raise issues of break and enter, self-defence, robbery and uttering threats. He submitted that all of the issues depend on the factor of credibility. He relies on the decision in R. v. Lifchus 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 and R. v. W.D., [1991] 1 S.C.R. 42.

[51] With respect to the break and enter, he submits that the evidence of Mr. McCrady is that at the time of entry, after Mr. Bichon opened the door, he gestured to Mr. McCrady to come in. He submits that Mr. McCrady’s evidence at least casts doubt on the fact that entry was denied, and there is no break and enter. He relies on R. v. Sarel, 1986 CarswellOnt 3530 to argue that there was an implied invitation to enter.

[52] With respect to the charge of assault, he submits that the accused is entitled to rely on self-defence. He submits that the evidence of Mr. Bichon is internally inconsistent as it related to the shotgun, whether it was loaded, and/or with a trigger lock on, which contrasts with the evidence of the police witnesses.

[53] Further, he notes that Mr. Bichon testified that he was not involved in the drug trade, yet he said to the two men, “Take whatever you want, money, drugs.”

[54] He relies on the evidence of Mr. McCrady that Mr. Bichon had the gun pointed at him, and that he was fearful. He acknowledges that the accused admitted hitting Mr. Bichon using a screwdriver to harden his fist, but suggests in the face of imminent use of the gun by Mr. Bichon, the force used was reasonable in the circumstances. He submits that in determining the applicability of the self-defence provision of s. 34, and referencing the decision in R. v. Bungy, 2015 ONCA 397, the following evidence of Mr. McCrady should be accepted: a) he believed that threat of force was being used against him; b) he subsequently believed that the purpose of responding to the threat was to protect himself; and c) the responsive act was objectively reasonable in the circumstances. He further notes Mr. McCrady’s evidence of previous threats made by Mr. Bichon towards him.

[55] Mr. Kiesman disputes Mr. McCrady’s involvement in the robbery of the television. He notes Ms. Wiebe’s evidence that she could not say if it was the accused who carried the television out of the residence. He argues that there is no evidence that the accused helped in any way in dealing with the television or that the two men acted together in any way. He relies on R. v. Hernandez, 2012 SCC 40, [2012] 2 S.C.R. 411.

[56] Finally, he argues that if the accused is convicted of aggravated assault, the charges of threats and forcible confinement are part of the assault.

Crown Submissions

[57] The Crown notes that with respect to the defence submissions of break and enter, that Mr. McCrady is charged under s. 348(1)(b), and there is no issue of intent.

[58] The Crown agrees that the focal issue is between the credibility of Mr. Bichon and Mr. McCrady as to what happened inside the residence. The Crown acknowledges that the weakness in Mr. Bichon’s evidence relates to the firearm. He submits that Mr. Bichon acknowledged that he does not know how the gun became loaded and that this is a memory gap. The Crown argues that I need not determine whether the gun was loaded or not, but whether it was pointed at Mr. McCrady, loaded or not. He submits that this does not diminish his credibility.

[59] Further, he submits that Mr. Bichon’s acknowledgment of some form of association with Hell’s Angels does not undermine his credibility, and in fact, supports his forthrightness.

[60] With respect to Mr. McCrady’s testimony, the Crown notes his use of cocaine the day before, and as testified to by Ms. Rice, the day of the entry into the house.

[61] The Crown points to his acknowledged criminal record including convictions for theft, and breach of court orders, which the Crown submits, are supportive of a lack of honesty, and a negative factor which I should take into account on Mr. McCrady’s credibility.

[62] He points to the evidence that when found by the police at Ms. Jonasson’s residence, Mr. McCrady attempted to run and hide.

[63] The Crown asks me to not accept Mr. McCrady’s evidence as to why he went to Mr. Bichon’s residence. He says he felt threatened by Mr. Bichon, yet he decided to go “talk to him.” The Crown notes that Mr. McCrady stated that Mr. Bichon had been texting him and could have simply texted back, but did not do so.

[64] At the residence, the Crown asks me to disbelieve that Mr. Bichon gestured to invite Mr. McCrady in. He notes that Mr. Bichon was in a cast and on crutches. Mr. McCrady says that Mr. Bichon fought back, but there is no evidence of any injuries to Mr. McCrady. He states that Mr. McCrady says his only concern was about the gun, but when he calls Chris in, Chris goes through the residence and takes out the television.

[65] Further, the Crown argues that, in both versions, Mr. Bichon winds up on the floor in the dining room; the accused hits him in the head with a hardened fist.

[66] He notes that Mr. McCrady made no contact with the police to report the threats he says Mr. Bichon made to him. Further, he notes that although his phone was seized by the police, there is no evidence that it contained threatening messages.

[67] The Crown points significantly to the evidence of Mr. Bichon. Mr. Bichon denies in any way inviting Mr. McCrady in.

[68] With respect to the break and enter, the Crown notes that, even if I accept Mr. McCrady’s evidence that he was invited in, there is no evidence that Mr. McKay was invited. The Crown relies on s. 350(b) of the Criminal Code which states:

350 For the purposes of sections 348 and 349,

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

(b) a person shall be deemed to have broken and entered if

(i) he obtained entrance by a threat or an artifice or by collusion with a person within, or

(ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening.

[69] The Crown references R. v. S.K., [1997] O.J. No. 2321. He notes that a charge of break and enter and theft includes being unlawfully in a dwelling. Further, even if the original intent was to enter only to “talk to” Mr. Bichon, (which I have not accepted), if I had accepted that evidence, the theft of the cell phone and television exceeded any permission which may have been given.

[70] With respect to self-defence, the Crown submits that it is available only if I find a reasonable doubt about what happened, that is, if I am left in doubt that the gun was pointed.

[71] The Crown notes the evidence that Mr. Bichon was in a cast on crutches and that Mr. McCrady acknowledged that he was “trying to hurt” Mr. Bichon. He notes Mr. McCrady placing a hard object in his hand and hitting Mr. Bichon while he was on top of Mr. Bichon on the floor. He notes that Mr. McCrady called on Chris to “get in here.” All of these factors, the Crown submits, show that even if I find the gun was pointed in any way, any responsive force used was not proportional, or reasonable.

[72] With respect to the robbery charge, the Crown notes the evidence of the demand: “Give us $1,000.00 before we leave.”

[73] The Crown submits that the evidence is clear that Mr. McCrady and Mr. McKay arrived at Mr. Bichon’s residence with the common intention of threatening him and that Mr. McCrady constrained Mr. Bichon while the television was taken out. He argues that the two were clearly associated.

[74] The Crown submits that the charges of assault and uttering threats are separate offences from the break and enter. The Crown notes the statement “Let’s just cut his throat.”

[75] With respect to the charge of forcible confinement, the Crown relies on Mr. Bichon’s evidence that he attempted to escape from the house, and when he attempted to get out, he was pulled back in by Mr. McCrady.

Analysis

[76] In view of the evidence raised by the defence as to the issue of credibility, I must consider the instruction in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. First, if I believe the evidence of the accused, I must acquit. Secondly, if I do not believe the testimony of the accused, but am left in a reasonable doubt by it, I must acquit. Thirdly, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[77] The accused in this case did testify. As stated in R. v. J. J .R. D., 2006 CanLII 40088 (ON CA), [2006] O.J. 4749 at paragraph 53:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem with the way the accused testified on the substance of the accused’s evidence.

[78] If I am unable to resolve any conflicting evidence then the accused must be acquitted. Only if the evidence taken as a whole meets the test of proof beyond a reasonable doubt can a finding of guilt be made: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.

[79] In simple and straightforward terms, I do not believe the evidence of the accused. His evidence on his use of Deirdre Rice’s vehicle is directly contradicted by her. His evidence with respect to entry into Mr. Bichon’s residence is contradicted by Mr. Bichon. In assessing the evidence of Mr. McCrady, I take into account his explanation that he had refused to answer Mr. Bichon’s text messages and that he was fearful of Mr. Bichon. Despite that, his evidence is that he wanted to go to Mr. Bichon’s residence in person “to talk.” I reject the suggestion that he went to pick up Chris McKay for the only reason of his fear of Mr. Bichon.

[80] Further, his evidence that Mr. Bichon directed, not pointed, the shotgun at him, is not borne out by the evidence that when the incident ended, Mr. Bichon was outside, lying on the grass. However, when police attended in the residence after Mr. Bichon was taken to the hospital, the gun was seen standing behind the couch up against the wall as shown in the photos in Exhibit 1.

[81] In considering his evidence of being invited to come into the house by Mr. Bichon’s “gesture,” I directly indicate that I accept Mr. Bichon’s evidence that, after answering the door, he was pushed into the residence by Mr. McCrady.

[82] I have further considered Mr. McCrady’s own testimony that in punching Mr. Bichon, he “wanted to hurt him.” I have considered that statement when finding that Mr. McCrady’s intention in going to Mr. Bichon’s was not to just “talk.”

[83] I have also considered the fact that Mr. Bichon was on crutches and in a cast, which I accept put him in a position of physical limitation against Mr. McCrady. I find it illogical that having been involved in a previous altercation with Mr. McCrady, Mr. Bichon would then invite Mr. McCrady in, accompanied by another man to simply “talk.”

[84] Further, I have considered Mr. Bichon’s evidence that, after Chris said, “We’ll break your other fucking leg,” that Mr. McCrady said, “that’s nothing compared to what I’m going to do with him,” as an invitation that Mr. McCrady’s intention was to go to the residence with the intention of making contact with Mr. Bichon. I infer from that a state of mind that supports Mr. Bichon’s evidence that he did not “invite” Mr. McCrady in.

[85] There are two essential pieces of conflicting evidence between the accused and Mr. Bichon: the permission into enter the residence and the issue of the shotgun. While I cannot accept Mr. Bichon’s evidence concerning the shotgun being unloaded in view of the location where the shotgun was found by the police, neither do I accept Mr. McCrady’s evidence that the gun was somehow directed towards him. All of the evidence indicated that following the beating administered inside the house, Mr. McCrady and Mr. McKay left and Mr. Bichon was subsequently found injured outside. Defence counsel suggested that it may have been placed there following the incident which, in my view, is illogical. The conflicting evidence about the use of the gun and any issue of it being directed at Mr. McCrady must be resolved in favour of Mr. Bichon.

[86] In assessing Mr. McCrady’s evidence, I have accepted Mr. Bichon’s testimony as to the version of the events. In so doing, I have considered that his testimony as to the shotgun being unlocked and with a trigger guard is clearly wrong in light of the police evidence. While there is no explanation from Mr. Bichon as to that contradictory evidence, as with all evidence, I may accept all, some, or none of a witness’ testimony. I may not, and do not, accept his evidence on that particular point. That in my view, in light of all the other evidence, does not affect his credibility overall to the extent that I believe the testimony of Mr. McCrady.

[87] There is other testimony of Mr. McCrady with respect to feeling threatened by Mr. Bichon and owing Mr. Bichon money for drugs. Further, the accused’s evidence is that while in the residence Chris said “I want $1,000.00” to which Troy replied, “If you’re here for drugs and money just take it.” If the intention was to just go to the house and talk, the demand by Chris totally contradicts that intention.

[88] I am further not left in any doubt by the evidence of the accused.

[89] I am not left in any reasonable doubt by the evidence of the accused, and I still must consider whether the evidence as a whole satisfies me beyond a reasonable doubt of the guilt of the accused.

[90] I have already found that Mr. McCrady entered the residence uninvited.

[91] Mr. Kiesman had cited R. v. Sarel, 1986 CarswellOnt 3530 as authority that the accused was invited into the premises and that, therefore, as the intent of the entry was itself innocent, there was no break and enter. As I have previously found, there was no invitation to enter. Section 350(b)(ii) of the Criminal Code deems a person to have broken and entered if he entered without lawful justification, the proof of which lies on the person.

[92] Mr. McCrady is, therefore, guilty of break and enter.

[93] With respect to the subsequent altercation, I have rejected Mr. McCrady’s evidence that Mr. Bichon directed the shotgun toward him. Mr. McCrady’s evidence is that, after the gun was produced, he called for Chris to come in, that Mr. Bichon turned away and the gun moved, and he then moved and tackled Mr. Bichon and began hitting him. As I have found there was no use of the gun as described by Mr. McCrady, based on that evidence, and the evidence of Mr. Bichon that Mr. McCrady began hitting him with his fists, and threw him onto the floor, I can only conclude that the physical altercation was initiated by the accused. No issue of self-defence arises.

[94] The injuries suffered by Mr. Bichon as noted in Exhibit 4 and the photos in Exhibit 1, including the stabbing with a knife, the striking with a small bat, and the acknowledgment by the accused of using an instrument in a closed first so he could hit harder and “hurt” Mr. Bichon, are sufficient to constitute wounding and an aggravated assault.

[95] The evidence of Mr. Bichon that after he heard, “Let’s break his other leg,” Mr. McCrady commented, “That’s nothing compared to what I’m going to do with him,” and further that he heard, “Let’s just cut his throat,” are sufficient to establish that threats were made.

[96] The evidence with respect to forcible confinement relied on by the Crown is Mr. Bichon’s evidence that after he was stabbed, he was pushed back into the house, he was able to get up and out into the porch. Mr. McCrady then threw him part way through a porch window and pulled him back into the living room.

[97] With respect to the charge of robbery, Mr. Kiesman has submitted that the removal of the television set can be attributed only to Mr. McKay. I do not agree. The evidence overall is clear that the two men were acting in consort. The accused drove the vehicle in which the television set was placed. I do not accept that, in spite of any bizarre behaviour which may have been shown by Mr. McKay, were as suggested by defence counsel, a means of self-preservation rather to assist Mr. McKay. Further, the television was taken to a residence known to Mr. McCrady. Ms. Jonasson’s evidence is that Mr. McCrady helped bring the television into her house and where the occupant of the house did not know Mr. McKay.

[98] Further, I have considered the evidence of the statement by Mr. McKay, “Give us $1,000.00 before we leave,” as intent to take from Mr. Bichon, money or goods.

[99] The evidence also indicated that Mr. Bichon’s cell phone was taken from his residence. That cell phone was later discovered in Mr. McCrady’s possession when he was arrested by the police. I do not accept Mr. McCrady’s evidence that he grabbed what he believed was his phone from the vehicle.

[100] Even in the event that the evidence is unclear as to who actually handled the television set, Mr. McCrady is guilty of being a party to the offence of robbery by virtue of s. 21 of the Criminal Code.

[101] I have found that Mr. Bichon was prevented from leaving the residence when he was pulled back into the front porch area when part-way through the window. The evidence is that Mr. McCrady pulled Mr. Bichon back into the residence. Forcible confinement deprives an individual of liberty to move from point to point. Mr. Bichon’s evidence is that he attempted to leave the living room area and went into the porch when he was pushed into a window and then pulled back into the residence by Mr. McCrady. Mr. McCrady is guilty of forcible confinement.

[102] On the basis of considering all of the evidence, I am not left in any reasonable doubt on the evidence of the Crown. I find Mr. McCrady guilty on all counts.

[103] I invite counsel’s submissions on the decision in Kienapple.

______”original signed by”

The Hon. Mr. Justice T.A. Platana

Released: February 10, 2017

CITATION: R. v. McCrady, 2017 ONSC 990

COURT FILE NO.: CR-15-0075

DATE: 2017-02-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen,

• and -

Michael James McCrady

Accused

REASONS FOR JUDGMENT

Platana J.

Released: February 10, 2017

/sab