COURT FILE NO.: CR-19-1036 DATE: 20210316 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen Ms. H. Adair, for the Provincial Crown
- and -
Troy Taibinger Mr. C. Lord, for Troy Taibinger
HEARD: January 11 – 15, 18 – 21 and February 17, 2021
REASONS FOR JUDGMENT Sproat J.
Introduction
[1] On consent I ordered that the trial proceed by Zoom conferencing.
[2] The Crown alleges that on September 9, 2015 Mr. Taibinger, travelling on an ATV pulling a small trailer, trespassed on the property of Darren Heuchan. It was alleged that he then assaulted Mr. Heuchan by running him over with his ATV. It was further alleged that Mr. Taibinger stole items from two nearby properties. I will particularize the counts later in these reasons.
[3] The defence elected to not call evidence. In his submissions Mr. Lord did not take issue with the fact that Mr. Heuchan was viciously assaulted or that items were stolen from the nearby properties. The issue is whether Mr. Taibinger has been proven, beyond a reasonable doubt, to be the perpetrator.
[4] In the course of these reasons I will make certain findings as to the credibility and reliability of witnesses and findings as to certain facts. In all cases my conclusions are based upon the totality of the evidence and the reasoning and analysis that may follow later in my reasons.
Crown Evidence
The Assault on Mr. Heuchan
[5] Mr. Heuchan testified that on September 9, 2015 he and his wife had been working in a shed beside their house when he heard more than one ATV in the distance. One ATV came near to his shed and then drove off. He followed it on his ATV, however, he lost sight of it.
[6] As he started to drive back to his house, he saw another ATV at the top of a hill on his property. He approached and asked what the driver was doing there. He received a profane response.
[7] Mr. Heuchan then called to his wife telling her to call the police. Mr. Heuchan described the driver as up and down in terms of his mood. He would say “yes sir” and tell Mr. Heuchan to chill out. He would then get angry. The driver of the ATV took his helmet off for a short time. Mr. Heuchan said that he could only see his eyes, nose and mustache.
[8] Mr. Heuchan looked around his ATV to see if he could see a licence plate. While he was doing so the man started the ATV and drove into Mr. Heuchan, causing him to fall back and the ATV to stall.
[9] Mr. Heuchan then stood up and the man ran the ATV into him again and he felt himself sliding down under the front of the ATV. The ATV had little clearance so that he believed that he would be killed if it ran over him. To save himself, Mr. Heuchan grabbed the handlebar and pulled on it which caused the ATV to flip.
[10] The man was able to right the ATV. As Mr. Heuchan was getting up the man drove at him “full throttle” and Mr. Heuchan had to wrap his arms around the front of the ATV and hang on to avoid being trampled underneath. The man then tried to drive off and was kicking at Mr. Heuchan. There was then a struggle in which Mr. Heuchan kept reaching up and hitting the kill switch which turned the ATV off and the man restarting it to continue dragging Mr. Heuchan around the property. The man was in the driver’s position on the ATV and was kicking Mr. Heuchan in the face and torso to try to dislodge him from the front of the ATV. The man dragged Mr. Heuchan around in circles.
[11] At some point the ATV broke down and stopped. The man then walked away and as he did he threw down one glove and then a second glove. He also took off his helmet and then a balaclava he had on and threw the balaclava on the ground.
[12] Soon after this Mr. Heuchan collapsed. The next thing he knew he was being attended by emergency personnel.
[13] As a result of the injuries suffered by Mr. Huelchan on September 9, 2015 he has not been able to return to work. He described himself as having suffered a brain injury which affects his memory and ability to organize information. He can not multitask. He has difficulty focusing his eyes. If he is working on something he needs a lot of breaks. He can no longer drive a car.
Descriptions of the Assailant
[14] As I will describe, honest witnesses gave varying descriptions of the assailant. This is not surprising in the circumstances.
[15] Mr. Heuchan estimated, based upon viewing the man while he was seated on his ATV, that he was approximately 5’ 6” and approximately 210 – 220 pounds. Mr. Heuchan said, understandably, that he was just estimating. While he saw the man while he was walking away, given his condition at the time and the fact he was laying on the ground, he could not provide any better estimate based upon this observation. The man was wearing black motocross pants and jacket, and had a helmet with a visor. In cross-examination he testified that at the time of the incident, he believed the man to be 5’ 4” – 5’ 8” and 190 – 222 pounds.
[16] In a September 10, 2015 statement to police he described the man as having black hair that was very short and combed forward with a black mustache. He agreed that was a correct description.
[17] In a photo line-up, which included Mr. Taibinger, Mr. Heuchan marked “no” for all of the photographs. At the end of reviewing the photographs he said he had to be 100 percent sure and he can’t be 100 percent sure.
[18] Elizabeth Balser lives at 2049 Concession 4. On September 9, 2015 at 7–7:30 p.m. she heard the dog barking and went outside to discover a man, who I am satisfied was the man who attacked Mr. Heuchan, standing in the corner of her garage with two of her gas cans at his feet. She described the man she saw as fairly tall, not fat. She estimated he was 5’ 8” to 6’ tall.
[19] In cross-examination she agreed that at the preliminary inquiry she had referred to the man as slim and thin and she says that is probably correct given her memory was better at the time. She agreed she would have a difficult time making any accurate assessment as to how tall the man was.
[20] Douglas Ireland lives near to Elizabeth Balser and, upon being alerted to the fact that there was someone stealing gas from her, he went to her house at approximately 7:00 p.m. He saw an ATV leaving her drive, followed it and then cut in front of it so that he could speak to the driver through his passenger window. He described it as a three-minute encounter. Mr. Ireland demonstrated how the tight helmet worn by the man distorted his facial features by pushing his cheeks out. From Exhibit 27, a photo of the assailant’s ATV left at the scene, he identified the trailer being towed by the man he stopped as being the same trailer attached to the ATV in the photo.
[21] On October 2, 2015 he did a photo lineup and was told that if he recognized someone he should mark “yes” on the photograph. He marked “yes” for photographs 3 (which was Mr. Taibinger) and 6. When he was looking at number 6 he said that person looked closer to the man than the person in photograph 3.
[22] When he was looking at the man on the roadside, he could see his cheekbones, one inch on each side of his eyes and down to the bottom of his lips. He was referred to the photographs and said he could not identify the ATV itself.
[23] He agreed that his memory was better at the time and based upon a September 11, 2015 statement he indicated that the man was 170 – 180 pounds and 5’7” to 5’8”.
[24] In cross-examination he was referred to his September 11, 2015 statement in which he described the man as cross-eyed. He agreed that in the photo line-up photograph Mr. Taibinger did not appear to be cross-eyed. He noted this was simply a photograph and not how the man would necessarily look at the side of the road in a loud confrontation. He said he picked the two men with similar facial features – he never said that one of them was the man on the ATV.
[25] It is convenient to note here that according to a July, 2015 police occurrence report, Mr. Taibinger was 6’ tall, 225 pounds, brown hair, with an apparent age of 40.
[26] Sgt. Dowling heard Mr. Heuchan say that the suspect was a “male in his twenties” and soon after, as audio recorded, put that description out to other officers. Mr. Heuchan testified that he was trying to tell the police the truth. The position of the defence was that this should be admitted as past recollection recorded for the truth of its contents. Mr. Lord agreed that a ruling on this point was not relevant to the defence deciding to call evidence and so this point was addressed in final submissions. The position of the Crown was that the audio was post recollection recorded of Sgt. Dowling but not Mr. Heuchan.
[27] I think the position of the Crown is overly technical. Mr. Heuchan was in no position to make notes. He was doing his best to help the police. I am certainly satisfied that Mr. Heuchan described the assailant as in his twenties. It would be unfair to the defence to not consider this as evidence of Mr. Heuchan’s description of the assailant.
DNA Evidence
[28] Ms. Sharpe, a scientist employed by the Centre for Forensic Sciences, provided DNA evidence. She was able to compare DNA samples from the crime scene to Mr. Taibinger’s DNA obtained pursuant to a DNA warrant. I summarize her results as follows:
a) The inside surface of a John Deere glove, found approximately 29 m from the assailant’s ATV, yielded a male DNA profile. The chance of this profile being from anyone other than Mr. Taibinger is so remote I am satisfied, beyond a reasonable doubt, that this is Mr. Taibinger’s DNA.
b) A swab of the mouth of the Appleton rum bottle, found in the tote of the assailant’s ATV, contained two male DNA profiles. I am satisfied, beyond a reasonable doubt, that one of these profiles is Mr. Taibinger’s DNA, given that the chance of the profile being from someone other than Mr. Taibinger is so remote. Similarly, I am satisfied that the second male DNA sample was from James Robbins. Mr. Robbins owned the Herc’s Garage property where Mr. Taibinger lived, and socialized with him, so it is not surprising that his DNA was on the rum bottle. Mr. Robbins testified at trial that he was in police custody on the day Mr. Heuchan was assaulted and he was not challenged on that point.
c) A hair from a balaclava located in the footwell of the assailant’s ATV, and a toque found in the trailer, each yielded a different and unidentified male DNA profile.
[29] Ms. Sharpe further testified that she cannot say how Mr. Taibinger’s DNA got on the items in question or how long it had been there. Specifically, she cannot say that the DNA profiles she derived were from the person who last handled the item or handled the item the most.
[30] DNA can transfer directly from an individual to an item. DNA can also transfer indirectly by passing from an individual, to an item that then comes into contact with other items. Whether DNA will transfer can be affected by the amount of DNA, the surface it is on, whether it is wet or dry, whether the contact involves pressure or friction and the time over which contact occurred.
[31] The original submission included two black rubber gloves found on the trailer. Ms. Sharpe only attempted to test the left glove because in her experience testing a second glove would likely yield the same or a similar result.
[32] Ms. Sharpe testified that as of 2015 it was case specific as to whether an item like a jacket would be accepted for testing. In this case the information was that the two individuals were associated with the occurrence. They had been able to derive four DNA profiles. In that circumstance they would probably not accept additional items for testing.
Out of Court Admissions and Denials by Mr. Taibinger
[33] Roger Kennedy has no criminal record. He is a former police officer who operates his own business. Mr. Kennedy testified that he is still friends with Mr. Taibinger. Mr. Taibinger visits his house periodically, most recently a couple of weeks prior to trial. In cross-examination it was not even suggested that Mr. Kennedy was not an honest witness.
[34] One day Mr. Taibinger was visiting and told Mr. Kennedy that the day before he got into a fight with a farmer while crossing his property on his ATV. He said that he cut across the property to take the back way home because he had stolen metal on the ATV’s trailer and wanted to avoid the police. Mr. Taibinger told him that the property where the fight took place was behind Herc’s Garage where he was living at the time and he was using a trail to get home.
[35] Mr. Taibinger described the other man as a “tough old bastard”. Mr. Taibinger said he had to hit him with a pipe to get him off the ATV and that he either drove into or over him with the ATV. Mr. Taibinger was bragging about this. He felt he had the right to assault the man because the man had no right to stop him. Mr. Kennedy told him he was wrong. Mr. Taibinger told him that at the time of the incident he had a helmet on so the man could not identify him. He was laughing that he got away with it. The detailed description of the assault provided by Mr. Kennedy, as related to him by Mr. Taiginger, leaves me with no doubt about the fact that Mr. Taibinger was describing the assault on Mr. Heuchan.
[36] The following day Mr. Taibinger was again visiting at Mr. Kennedy’s home. A report came on the radio about a local man dying of an assault. Mr. Kennedy testified that Mr. Taibinger then appeared scared and did not think it was funny anymore. Mr. Taibinger said he was going to get on a bus and go to Calgary because he was not going to spend the rest of his life in jail for murder.
[37] The following day Mr. Taibinger returned and told Mr. Kennedy that he was relieved because he had found out that the man who had died was not the same man that Mr. Taibinger had assaulted. Mr. Kennedy’s sister, Barbara Hicks, then dropped in. This then led Mr. Kennedy to relate to his sister the entire story about Mr. Taibinger having been in an altercation with a man and, thinking that the man had died, said that he would run away to Calgary. Mr. Taibinger did not take issue with anything being said and made a comment to the effect of “you would be relieved too”.
[38] Mr. Kennedy was uncertain as to the precise timing but, some days or weeks following the assault, Mr. Taibinger told Mr. Kennedy that in fact he had not assaulted the man. He had simply been on a hill and had watched the fight between a man on an ATV and another man. He said the man was short and chunky. Mr. Kennedy responded that was “B.S.”. Mr. Taibinger insisted he had just witnessed the assault. Mr. Taibinger did not recant his earlier statement that he was out on an ATV that day.
[39] Mr. Kennedy testified that two or three months later Mr. Taibinger told him that a guy had come to his place and knocked on the door. The man put a gun in his face and said “You are taking the rap for me or I will kill you”. Mr. Taibinger did not provide any more detail about who the person was or his name. Mr. Kennedy told Mr. Taibinger that he did not believe him. Mr. Taibinger said he swore that it was true.
[40] Mr. Kennedy then said that Mr. Taibinger’s story about being on the hill and watching the incident came a long time after his arrest on these charges.
[41] After his arrest Mr. Taibinger also told Mr. Kennedy that the OPP found his DNA on some items related to the assault. Mr. Taibinger told him that Mr. Taibinger said “they can’t prove when the DNA got on the items”.
[42] Four or six weeks before the incident Mr. Kennedy had been at Herc’s Garage and had seen Mr. Taibinger welding the suspension on a box for a steel trailer. He estimated it to be 4’ x 6’ or 7’.
[43] Darrell Thompson testified. He has an extensive criminal record, including crimes of dishonesty. He was asked if he knew Mr. Taibinger and his answer was “unfortunately”. They do not hang out and are not friends, but he said he does not hate or dislike Mr. Taibinger. He did, however, offer that at one point Mr. Taibinger knocked out his teeth using a pool cue. This incident was not further explained. I rely upon it solely as a possible motive for Mr. Thompson to provide false testimony.
[44] At Herc’s Garage he overhead a conversation Mr. Taibinger was having with someone else in which Mr. Taibinger talked about getting in a fight with an old man who tried to stop him and that he drove over top of him. Mr. Taibinger was laughing about the incident.
[45] Russell Grey testified. He too has a significant criminal record including crimes of dishonesty. He has known Mr. Taibinger all his life and thinks he is a good guy. He has nothing bad to say about him. Given his demeanour, and the cryptic manner in which he answered questions, I would describe him as a reluctant witness who was favourably disposed to Mr. Taibinger.
[46] Mr. Grey got a call from Jeff Rogers, a relative of the owner of the stolen ATV driven by the assailant, asking him if he knew where the stolen ATV was. Mr. Grey must have had some suspicion because he went to speak to Mr. Taibinger. Mr. Grey saw the stolen ATV that day at Herc’s Garage which is where Mr. Taibinger lived. Mr. Taibinger did not say that he stole the ATV but he in fact had it.
[47] Mr. Grey further testified that, while he could not remember where or when, he had a conversation with Mr. Taibinger in which Mr. Taibinger told him about being out on his ATV and getting into a fight with a man who tried to stop him.
[48] In cross-examination he said that he does not recall the make or colour of the stolen ATV. At the time, however, he knew it. He spoke to Mr. Taibinger because he was “pissed off” that he would take an ATV from a close neighbour of Mr. Grey’s grandfather. He was also concerned he would get blamed for it.
Lost Evidence
Introduction
[49] The trial evidence indicated that one Kombi mitten, and perhaps a black glove, that were possibly evidence had been lost. I will explain what this possible evidence consists of and make findings in relation to it. I will then address the lost evidence application made by the defence.
One or Two Black Gloves?
[50] A canine team consisting of a handler and two members of the Emergency Response Team (“ERT”) attended the scene and started tracking a human scent from the area where the two ATVs were located in the field.
[51] Cst. O’Dacre, the only member of ERT who testified, said that within 30 yards of the ATVs, a member of the team called out that there were two gloves on the ground. Cst. O’Dacre testified that he may have stopped at the location of the gloves for two seconds or not at all. The dog was moving forward at a fast walking pace. Cst. O’Dacre later made a note indicating that there were two gloves. On later being shown a photo of only one glove found near the scene he said that he could have been mistaken.
[52] D.C. Fagan testified that he was advised by members of the canine team that they had found two gloves just west of the scene. West of the assault he found one glove on the ground and put a pylon next to it.
[53] Sgt. Cantlon was the identification officer sent to process the scene on September 10, 2015. The distance from the ATVs to where one glove was found, next to a pylon, was approximately 29 meters. He looked for additional items in the vicinity and did not find anything. He walked in a circle around the glove. No one told him that there might be a second glove. If someone had told him there might be a second glove he would have looked more carefully in the thick vegetation.
[54] On balance I find that there was only one black glove being the John Deere glove. Cst. O’Dacre testified that a member of the team called out that there were gloves at one location and whatever he saw he saw in one place. If there were two gloves close together I am satisfied that Sgt. Cantlon would have seen the second glove. While he did not do an exhaustive grid search, he did walk around each item inspecting the immediate vicinity.
The Kombi Mitten
[55] Cst. O’Dacre testified that half way to the next house, which would be roughly about 1 km in to the canine track, the dog pulled toward a group of bushes and he noticed a mitten and put it in his pocket. While he was not the canine handler, he testified that based on his experience, the dog follows the scent which can shift with the wind. (I think this is evident as a matter of common sense). At the end of the track he gave it to Sgt. Dowling who thought it could belong to the suspect and could be evidence. Sgt. Dowling testified that he did not have exhibit packaging with him and handed the mitten to D.C. Fagan.
[56] D.C. Fagan testified that Sgt. Dowling told him the mitten had been found along the canine track. He put the Kombi mitten in his vehicle and forgot about it. He only realized in preparation for the preliminary hearing in December 2018 that the mitten was missing. The Kombi mitten was a cold weather mitten.
[57] Prior to the preliminary hearing in December 2018 D.C. Fagan realized the mitten was missing. He did not tell the Crown. He did not make any corrected notes or prepare a new general occurrence report. He agreed that he should have documented the loss of the glove and does not know why he did not do so.
The Lost Evidence Application
[58] The lost evidence application was brought on January 21, 2021, near to the end of the Crown case. Mr. Lord indicated that a ruling on the lost evidence application would not affect Mr. Taibinger’s decision on whether to call evidence. As such, it was agreed that this application would be argued at the conclusion of the trial. After hearing argument, I indicated that, for reasons to follow, my ruling was that Mr. Taibinger was not entitled to a stay or other relief. These are my reasons.
[59] I have concluded that there was no second glove that was lost. For the sake of completeness I will add that, if there was a second glove, I view its loss as insignificant. Ms. Sharpe testified that CFS typically will typically test one of a pair of gloves as the results for both gloves would likely yield the same result. It would be speculative to think a second glove would be helpful to Mr. Taibinger making full answer and defence.
[60] With respect to the Kombi mitten, I accept that it was lost due to unacceptable negligence. DC Fagan knew that the mitten might be evidence and yet he did nothing to preserve it. When he realized the mitten had been lost he did not report that fact to his superiors or the Crown.
[61] I am not, however, satisfied on a balance of probabilities that the Kimbi winter mitten was connected to the assailant. It was found one or more kilometers away from the crime scene several hours after the assailant fled. It was along the canine scent track which is not the same as the actual route followed by the assailant. Further, it is unlikely that anyone would be wearing a Kombi winter mitten in the early evening in early September. I think it more likely this was a lost or discarded piece of clothing that, as a matter of common sense and experience, you periodically see in the countryside.
[62] I have another more fundamental problem with the argument that Mr. Taibinger needed this mitten to make full answer and defence. The lost evidence application was based on the evidence given at trial. Mr. Heuchan heard the sound of more than one ATV and then two ATVs appeared on his property, one after the other. I make the reasonable inference the ATVs were travelling together. That inference is supported, on the defence argument, by Mr. Taibinger’s statement that he was present and merely witnessed the assault. If I gave that any credence, and I will address that later, the reasonable inference would be that Mr. Taibinger was driving the first ATV that entered the property and the assailant the second ATV.
[63] Accepting the defence position for the sake of this analysis, Mr. Taibinger probably knows the identity of the assailant. As a matter of common sense, more often than not, people going for a walk, bike or ATV together do so because they know each other. As such, his stated concern that additional items might have yielded additional DNA profiles which could help identify the assailant is really beside the point.
Thefts from Neighbouring Properties
[64] Jean Ruland lives on a rural property which has a house and a cottage at 2064 Concession 4. An agreed statement of facts indicated that on September 7, 2015 Ms. Ruland discovered that her ATV had been stolen from her shed sometime between August 31 and September 7, 2015. (This was the ATV driven by the assailant). She called the police and Jeff Rogers to assist her.
[65] Joanne Howe identified the Acer laptop and iPad found on the trailer of the stolen ATV as having been the property of her daughter Maia Turland and having been stolen from a cottage on her property. She could not say when the items were stolen.
Analysis – Identity of the Assailant
[66] I have considered all of the arguments presented. To provide some context for my analysis I will summarize the principal arguments presented.
[67] The position of the Crown was that the DNA evidence proved that Mr. Taibinger was associated to the assailant’s ATV. Mr. Grey confronted Mr. Taibinger about stealing the ATV and saw it at Mr. Taibinger’s residence on September 7 or 8, 2015, Mr. Taibinger admitted his guilt on a number of occasions and his recantation should not be given any weight. The discrepancies between the descriptions of the assailant given by Mr. Heuchan and Mr. Ireland, and Mr. Taibinger’s actual physical appearance, are explained by the stressful situation and their brief opportunity to observe the assailant.
[68] The position of the defence was that the Crown has not proven beyond a reasonable doubt that Mr. Taibinger was the assailant. It was submitted that I should give some credit to the exculpatory statement that Mr. Taibinger only witnessed the assault which is plausible given that Mr. Heuchan testified that there were two ATVs that came on his property. Further, the discrepancy between Mr. Taibinger, and the descriptions of the assailant, give rise to a reasonable doubt. The absence of certain evidence such as the Kombi mitten, DNA testing of other items in the ATV trailer and testimony from the canine handler, contributes to there being a reasonable doubt.
[69] I begin by noting that there were a number of brief references to prior disreputable conduct by Mr. Taibinger. Mr. Thompson says he was assaulted by him. Mr. Kennedy alluded to him sometimes being violent and to stealing. Mr. Taibinger’s name was in the offender DNA database. I caution myself that I cannot reason that because of any disreputable conduct Mr. Taibinger is more likely to have committed the offences charged or that he is deserving of punishment for matters not before the court.
[70] Mr. Heuchan testified that he saw the assailant throw down two gloves and a balaclava as he walked away. I am satisfied the John Deere glove found near the scene and the balaclava found in the foot-well of the assailant’s ATV were in fact worn by the assailant.
[71] Mr. Taibinger’s DNA was, therefore, found on the glove worn by the assailant and on the partially empty liquor bottle found on the stolen ATV. This, however, leaves open the possibility that Mr. Taibinger had direct or indirect contact at some point in the past with the glove and that he had simply consumed alcohol from the liquor bottle at a time unrelated to the assault.
[72] I also take into account the fact that DNA from an unidentified male was found on a hair from the balaclava and on a toque on the trailer. As Ms. Sharpe explained, she cannot give any opinion as to how and when the DNA got on the items in question.
[73] Mr. Kennedy is a friend of Mr. Taibinger. It was not even suggested in cross-examination that he was not attempting to tell the truth. I conclude that Mr. Kennedy was an honest witness attempting to be fair and accurate.
[74] In version one Mr. Taibinger expressly told Mr. Kennedy that he was the assailant. In fact, he was bragging about it. The following day Mr. Taibinger again visited Mr. Kennedy’s home. When a report came on the radio that a local man had died as a result of an assault, Mr. Taibinger appeared scared, nervous and excited. He did not think it was funny anymore and he said he was going to get on a bus and go to Calgary because he was not going to spend the rest of his life in jail for murder. I appreciate that even an innocent observer of a murder would be upset, however, if Mr. Taibinger was in fact an innocent observer his extreme reaction to the radio report that a man had died, and his stated intention to flee to Calgary, does not make sense.
[75] Further, if there was any air or reality to the suggestion that Mr. Taibinger lied to Mr. Kennedy about the assailant, this would have been a good time to disabuse him of that notion. It would have been logical for Mr. Taibinger to make sure his friend knew immediately that he was not in fact a murderer. Mr. Taibinger did not, however, do so.
[76] It was only subsequently that Mr. Taibinger told Mr. Kennedy version two, which was that he had been sitting on a hill and watched the confrontation between a person on an ATV and another man.
[77] Sometime later that Mr. Taibinger told Mr. Kennedy that a man had come to his house, knocked on the door, and when he opened it the man put a gun in his face and said “you are taking the rap for me or I will kill you”. This is a truly bizarre story which I conclude Mr. Taibinger concocted in an attempt to explain his earlier admission of guilt.
[78] I appreciate that Mr. Kennedy said that Mr. Taibinger lies sometimes and likes to exaggerate his ability in hunting, fishing and forming concrete. As a matter of common sense and experience I do not see how this would make Mr. Taibinger prone to falsely claiming responsibility for a vicious assault.
[79] I also appreciate that Mr. Kennedy had some difficulty in remembering when his conversations with Mr. Taibinger took place. In particular, he did not seem to appreciate that there was a lengthy gap between the assault on September 9, 2015 and Mr. Taibinger’s arrest on November 15, 2017. This does not, however, cause me to doubt his evidence. There was no suggestion by defence counsel, and I saw no indication, that Mr. Kennedy was not attempting to be honest.
[80] Mr. Lord pointed out that Mr. Kennedy testified that Mr. Taibinger told him he hit Mr. Heuchan with a pipe while Mr. Heuchan did not mention being hit with a pipe. I view this as insignificant and it does not cause me to question the reliability of Mr. Kennedy’s evidence. Mr. Heuchan was being hit with anything the assailant could access and he may well have been hit with a pipe and not remember. More importantly, Mr. Kennedy, an honest witness, may be mistaken as to this detail. This type of discrepancy does not, in my opinion, impair the reliability of his evidence on central issues.
[81] With respect to reliability, the conversations related by Mr. Kennedy would stand out in anyone’s mind. Mr. Taibinger confessing to an assault and taking the misguided position that he was justified in committing the assault. The visceral reaction evidenced by Mr. Taibinger when he heard a radio report and thought that he had killed a man. Followed by the explanation that he had only watched the confrontation from afar. And then the truly bizarre story that a man put a gun in his face and told him he would have to take the rap for the assault.
[82] Mr. Kennedy related these conversations in some detail. They were vivid in his mind. The fact that Mr. Kennedy is uncertain as to the timing of the statement does not cause me to doubt that the statements were made. I conclude that his evidence is reliable and that these conversations occurred as related by Mr. Kennedy.
[83] Darrell Thompson has an extensive criminal record and some animosity towards Mr. Taibinger. The fact is, however, that he testified to hearing Mr. Taibinger make statements that were very similar to what Mr. Taibinger told Mr. Kennedy. That Mr. Taibinger got into a fight with an older man who tried to stop him and Mr. Taibinger drove over him with his ATV.
[84] Russell Grey has an extensive criminal record. He thinks Mr. Taibinger is a good guy and has nothing bad to say about him. The evidence he gave was very similar to that of Mr. Kennedy. Mr. Taibinger told him that he had been on his ATV, and a guy tried to stop him and they got into a fight.
[85] Taking into account the totality of the evidence, and in particular the fact that I have found Mr. Taibinger similarly advised Mr. Kennedy that he had committed the assault, I would also accept the evidence of Mr. Thompson that he overheard Mr. Taibinger admitting that he was the assailant and the evidence of Mr. Grey that Mr. Taibinger told him that he was the assailant.
[86] Mr. Grey further testified that after Jeff Rogers told him about the stolen ATV he went to Herc’s Garage, where Mr. Taibinger lived, to speak to him about the stolen ATV. At the time he knew what the stolen ATV looked like. Mr. Grey did not relate exactly what was said, and he testified that Mr. Taibinger did not admit stealing the ATV. The stolen ATV must, however, have been discussed as Mr. Grey went there for that purpose. I also accept Mr. Grey’s evidence that he observed the stolen ATV at Herc’s Garage that day.
[87] If Mr. Taibinger provided any innocent explanation for possession of the stolen ATV when confronted by Mr. Grey, I am sure Mr. Grey would have mentioned it. While he was “pissed” that Mr. Taibinger would steal from his grandfather’s neighbour, Mr. Grey was nevertheless friendly to Mr. Taibinger. I infer and find that Mr. Taibinger effectively acknowledged that he had stolen the ATV.
[88] Since the theft of the ATV was not discovered until September 7, 2015, this means that Mr. Taibinger was in possession of the stolen ATV within 2 days of the assault on Mr. Heuchan. The only other male who lived on the Herc’s Garage property was James Robbins who was in custody on the day Mr. Heuchan was attacked.
[89] In considering whether the Crown has proven beyond a reasonable doubt that Mr. Taibinger was the assailant, I recognize that certain of the descriptions given by witnesses are not consistent with the assailant being Mr. Taibinger. I also appreciate that Mr. Heuchan was not able to pick Mr. Taibinger out of a photo line-up and that Mr. Ireland picked out Mr. Taibinger and another man who Mr. Ireland said looked even more like the assailant than Mr. Taibinger. While I take this evidence into account, I also recognize that relatively brief observations, made in stressful circumstances, can be quite unreliable.
[90] I appreciate that Mr. Taibinger made an out-of-court statement claiming that he was not the assailant. While the defence could not introduce an exculpatory statement, the Crown fairly introduced this statement as it was a necessary part of a series of statements made by Mr. Taibinger. In accordance with Watt’s Criminal Jury Instructions, Final 24-A, I must consider that statement by Mr. Taibinger in deciding whether I have a reasonable doubt as to whether he was the assailant.
[91] Considering the totality of the evidence, and in particular taking into account the varying descriptions given by witnesses and Mr. Taibinger’s out-of-court statement that he was not the assailant, I do not have a reasonable doubt about his guilt.
[92] Mr. Taibinger admitted he was the assailant to his good friend Mr. Kennedy. He also freely admitted that to Mr. Grey and in the presence of Mr. Thompson. Mr. Taibinger’s immediate and visceral reaction to the radio report that a man had been assaulted and died lends support to the conclusion that he was telling the truth when he admitted, in fact bragged, about being the assailant. I reject completely his statement that he only observed the assault. Mr. Taibinger concocted the bizarre story about having been threatened with a gun which further detracts from his credibility.
[93] At steps 1 and 2 of the W.D. analysis I conclude that, in light of all of the evidence, I do not believe Mr. Taibinger’s out-of-court statement that he simply observed the assault, nor does that evidence cause or contribute to me having a reasonable doubt.
[94] The Crown case rests to a significant extent on circumstantial evidence, although perhaps not to the extent of being entirely or primarily circumstantial, given Mr. Taibinger’s statements admitting guilt. In any event, I have considered the guidance provided in R. v. Villaroman 2016 SCC 33. I have considered whether the evidence that Mr. Taibinger was the assailant, when considered in light of human experience, the evidence as a whole and the absence of evidence, excluded all reasonable inferences other than guilt.
[95] I appreciate that there was a second ATV probably associated with the assailant given that Mr. Heuchan heard and saw two ATVs in short order. Is the suggestion that the second ATV driver might be the assailant an alternative, reasonable inference? I conclude that it is not given that what the defence contended was a plausible theory would involve:
a) While Mr. Taibinger had the stolen ATV in his possession within two days of the assault, he and the assailant deciding to drive each other’s ATV for no discernible reason.
b) The assailant happening to wear a glove with Mr. Taibinger’s DNA on it during the assault.
c) Mr. Tainbinger’s deciding to confess to a crime he did not commit on three occasions including to his trusted friend Roger Kennedy.
[96] In my view this alternative scenario is fanciful and speculative in the extreme. It is not based on logic and experience.
[97] At step 3 of the W.D. analysis, on the totality of the evidence that I do accept, I am satisfied beyond a reasonable doubt that Mr. Taibinger was the assailant.
The Counts in the Indictment
[98] Counts 1 – 5 relate to Mr. Heuchan, and are as follows:
a) Count 1 – aggravated assault contrary to s.268 of the Criminal Code.
b) Count 2 – dangerous operation of a motor vehicle causing bodily harm contrary to s.249(3) of the Criminal Code.
c) Count 3 – having in his possession a 2009 Suzuki ATV knowing that it had been obtained by the commission of an offence contrary to s.354(1)(a) of the Criminal Code.
d) Count 4 – in committing an assault use a weapon, being the ATV, contrary to s.267(1) of the Criminal Code.
e) Count 5 – operation of the ATV while disqualified from doing so contrary to s.259(4) of the Criminal Code.
[99] The defence acknowledged that the actions of the assailant, who I have found was Mr. Taibinger, were such that he would be guilty of counts 1, 2 and 4. I agree, based on the uncontroverted evidence of Mr. Heuchan as to the nature of the assault and the serious injuries he suffered.
[100] Further, given the evidence of Mr. Rogers, Mr. Kennedy and Mr. Grey, I find that Mr. Taibinger knew the ATV was stolen and so is guilty of count 3. There was also evidence that Mr. Taibinger was disqualified from driving on September 9, 2015 and so he is guilty of count 5.
[101] Counts 6 – 9 relate to the neighbouring properties:
a) Count 6 – break and enter a shed at 2049 Concession 4, Teeswater (the Balser property), with the intent to commit an indictable offence, contrary to s.348(1)(a) of the Criminal Code.
b) Count 7 – break and enter a dwelling place at 2064 Concession 4, Teeswater (the Howe property) and commit therein theft contrary to s.348(1)(b) of the Criminal Code.
c) Count 8 – steal an iPad the property of Joanne Howe contrary to s.334(b) of the Criminal Code. The iPad was the property of her daughter Maia Turland.
d) Count 9 – steal an Acer laptop the property of Joanne Howe contrary to s.334(b) of the Criminal Code. The laptop was the property of her daughter Maia Turland.
[102] Mr. Ireland got a call around 7:00 p.m. and spoke to the man on what he identified as the ATV abandoned on Mr. Heuchan’s property. Mr. Taibinger was one of two men Mr. Ireland picked out of a photo lineup. Mr. Taibinger had other stolen property on the ATV. I am satisfied beyond a reasonable doubt that Mr. Taibinger, who I have found was driving the stolen ATV around 8:00 p.m., was also driving it at 7:00 p.m. and is the man who entered Ms. Balser’s shed intending to steal gas.
[103] The position of the Crown was that Mr. Taibinger should be found not guilty on count 7 given that, while on September 9, 2015, he was in possession of the items taken from the cottage, there was no evidence of when they were taken. Given this concession, I find Mr. Taibinger not guilty on this count.
[104] I agree with the Crown that counts 8 and 9 of the indictment should be amended to conform to the evidence that the computers were the property of Maia Turland. There is no prejudice to Mr. Taibinger in this amendment.
[105] The Crown further submitted that on counts 8 and 9 Mr. Taibinger should be found guilty of the included offence of possession of property obtained by crime. I agree given that Mr. Taibinger has been found not guilty on count 7. Given that Mr. Taibinger was driving a stolen ATV, pulling a trailer with stolen property, and taking a back route to avoid encountering the police, I am satisfied beyond a reasonable doubt that he knew the iPad and Acer laptop were stolen.
[106] I have, therefore, endorsed the indictment as follows:
a) Counts 1, 2, 3, 4, 5 and 6 – guilty as charged and convictions entered.
b) Count 7 – not guilty.
c) Counts 8 and 9 – not guilty of theft but guilty of possession of property obtained by crime, contrary to s.354(1) and convictions entered on that offence.
“Signed Original in Court File”
Released: March 16, 2021