COURT FILE NO.: CR-20-14 DATE: 2021-03-16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN T. Schuck, for the Crown

• and -

ALLAN YERXA D. Gunn, for the Defendant Accused

HEARD: November 23, 24, 25, 26, 2020 in Kenora, Ontario

Justice J. Fregeau

REASONS FOR JUDGMENT

INTRODUCTION

[1] The accused stands charged with manslaughter in relation to the stabbing death of George Tait in Sioux Lookout on September 5, 2018.

[2] The Crown’s case included the evidence of the police officers first on the scene of George Tait’s death, various civilian witnesses, Dr. K. MacDonald, forensic pathologist, Ontario Provincial Police Detective Sergeant S. Nichols, the primary investigator, and Ontario Provincial Police Detective Sergeant C. Buckmuller. D/S Buckmuller is with the O.P.P.’s Behavioural Science Unit and conducted an interview of the accused. A video recording of this interview was filed as part of the Crown’s case.

[3] Counsel also filed an Agreed Statement of Facts. The accused did not call evidence.

SUMMARY OF THE EVIDENCE

CONSTABLE A. CAPONE

[4] On September 5, 2018, Constable Capone was on general patrol in Sioux Lookout. At 8:22 p.m. that evening, Constable Capone responded to a call concerning an assault on a pregnant female in the vicinity of #51 7th Ave., Sioux Lookout. Upon arrival, Constable Capone observed Ms. Bunting, the female complainant, with a man in front of #51 7th Ave. When Constable Capone attended to Ms. Bunting, the man who had been with her ran into the adjacent bush area.

[5] Ms. Bunting advised Constable Capone that the man that had been with her was Patrick Kanate. Constable Capone and Constable Grant began a foot search of the perimeter of the wooded area for Mr. Kanate. Constable Capone then continued her search of the area in her cruiser. She was unable to locate Mr. Kanate and returned to the O.P.P. detachment at 8:57 p.m., September 5, 2018.

[6] At 8:58 p.m., Constable Capone was dispatched to a stabbing on 7th Ave. Constable Capone testified that this second location was “within walking distance” and “less than 10 houses” from #51 7th Ave.

[7] Constable Capone observed a man, later determined to be the deceased, George Tait, on the ground, conscious, intoxicated and combative. She assisted the paramedics in placing George Tait in the ambulance and travelled to the hospital in the ambulance with him. Unfortunately, George Tait was found to be “vital signs absent” upon arrival at the hospital. Attempts to revive him were unsuccessful.

[8] Constable Capone learned later that night that Mr. Kanate had been arrested and detained at the Sioux Lookout O.P.P. detachment.

CONSTABLE D. GRANT

[9] Constable Grant was also on general patrol in Sioux Lookout on September 5, 2018, working a 6:00 p.m. to 6:00 a.m. shift. At 8:22 p.m. that evening, he was also dispatched to the assault on Roxanne Bunting in front of #51 7th Ave., Sioux Lookout. Constable Grant arrived at the scene shortly after Constable Capone.

[10] Constable Grant assisted in the search for Mr. Kanate, first on foot and then in his cruiser, north and south on 7th Ave. Constable Grant was not able to locate Mr. Kanate. He returned to the O.P.P. detachment at 8:53 p.m. that evening.

[11] At 8:57 p.m., September 5, 2018, Constable Grant was also dispatched to the stabbing on 7th Ave., near the “old Zone Hospital”. Upon arrival at the scene, Constable Grant observed George Tait on the ground being attended to by paramedics. Constable Grant also assisted the paramedics in placing George Tait in the ambulance.

KATELYNN BEARDY

[12] Ms. Beardy is a member and resident of the Muskrat Dam First Nation. Ms. Beardy and Trevor Duncan were walking on 7th Ave. in Sioux Lookout on the evening of September 5, 2018, when they encountered George Tait and Stacey Kejick.

[13] George Tait asked Ms. Beardy and Mr. Duncan if they wanted to drink with him and Mr. Kejick. They agreed to do so and the four of them proceeded to the area of the “Sioux Tower”. The “Sioux Tower” is the Sioux Lookout water tower, located in a wooded area near 7th Ave. and accessed by way of a bush trail from 7th Ave.

[14] Ms. Beardy estimated that they arrived at the Sioux Tower at approximately 8:00 p.m. that evening. Once at the Sioux Tower, Ms. Beardy, Mr. Duncan, George Tait and Mr. Kejick proceeded to socialize while drinking beer and whiskey. Ms. Beardy testified that George Tait became “really drunk” and that Mr. Kejick “seemed not to be close to as drunk” as George Tait.

[15] On cross-examination, Ms. Beardy testified that Mr. Kejick became “mean” and aggressive toward her and George Tait “as he got drunker”. She also agreed that Mr. Kejick was “getting scary” and yelling at her and George Tait.

[16] Ms. Beardy estimated that she and Mr. Duncan left the Sioux Tower after about one hour because it was getting dark. As they were walking toward 7th Ave., a police car approached and George Tait and Mr. Kejick “ran off.” Ms. Beardy testified that she and Mr. Duncan were stopped and questioned by the police for approximately five minutes. They then proceeded down 7th Ave. and saw someone lying on the street.

[17] As Ms. Beardy and Mr. Duncan approached this person, they realized it was George Tait and that he was seriously hurt. Ms. Beardy attended to George Tait and Mr. Duncan flagged down a passing vehicle and asked the driver to call an ambulance. The ambulance and police arrived and rushed George Tait to the hospital. As noted above, he became “vital signs absent” en route to the hospital.

[18] Ms. Beardy estimated that it was approximately 20 minutes between when she, Mr. Duncan, George Tait and Mr. Kejick parted company, and when she next saw George Tait lying on 7th Ave.

DR. JAMES KERRY MACDONALD

[19] On consent, Dr. MacDonald was qualified as an expert in forensic pathology and allowed to provide opinion evidence as to the mechanics and cause of death of George Tait.

[20] Dr. MacDonald performed an autopsy on George Tait on September 7, 2018. Dr. MacDonald’s Report of Postmortem Examination (“PM Report”), dated September 12, 2018, was filed in evidence. Dr. MacDonald’s evidence and the contents of the PM Report were not controversial.

[21] Dr. MacDonald testified that George Tait suffered seven stab wounds in total, which, in his opinion, were inflicted by a sharp-edged cutting instrument such as a knife. According to Dr. MacDonald, six of the seven stab wounds were insignificant and survivable.

[22] Dr. MacDonald determined that the seventh stab wound was the cause of George Tait’s death. It was described in the PM Report as a “left chest stab wound penetrating the left ventricle giving rise to a cardiac tamponade” (compression of the heart due to critically increased accumulation of fluid in the pericardial sac) and ultimately cardiac arrest.

[23] Dr. MacDonald testified that “an injury like this is almost inevitably fatal. The defect produced into the ventricle allows blood to escape out of the ventricle at high pressure.” Dr. MacDonald explained that “cardiac output ceased very shortly after the consequences of this wound.”

[24] On cross-examination, Dr. MacDonald testified that George Tait was approximately five feet, nine inches in height, about 210 to 220 pounds, “stalky” and previously healthy. He agreed that he could not opine as to whether one or multiple instruments inflicted the seven stab wounds, as to the order in which they were inflicted or the time between when the wounds were inflicted, other than to opine that they all occurred “likely [within] under an hour” of each other.

[25] Dr. MacDonald agreed with the suggestion that it was possible that George Tait could have suffered the six non-fatal stab wounds followed by the fatal stab wound 15 minutes later. He also agreed with the suggestion that the seven stabs wounds could have been the result of multiple incidents.

[26] Dr. MacDonald testified that the blood drawn from George Tait at autopsy had a blood alcohol content of 222 milligrams of alcohol in 100 millilitres of blood. He agreed that George Tait’s actual blood alcohol level immediately prior to death was likely above this measurement. Dr. MacDonald also agreed that a person with this blood alcohol content would generally display “all manners of disinhibition including aggression.”

MELISSA VINCENT

[27] Ms. Vincent is the accused’s sister. She is 30 years old and lives in Lac Seul First Nation. Ms. Vincent and the accused had a close relationship growing up and have remained close as adults. After she moved out of her mother’s home in 2013, Ms. Vincent and the accused would communicate by text, phone calls, Facebook and in person.

[28] Ms. Vincent identified a transcript of a series of text messages between her and the accused from September 14, 2018. These text messages included the following:

Accused: What u hear next about me remember its what I wanted. Ms. Vincent: Now what you talking about? Accused: Take good care of ur girls. Im gonna miss you’s Ms. Vincent: What’s going on. Allan? What are you talking about? Allan what you talking about. Where are you going? Accused: im gonna go to jail for awhile. Ms. Vincent: What. Accused: 15-25 years if I get caught. LoLp. Anyways I love you Marissa. Ms. Vincent: Allan what did you do. Accused: All I can say is this persons no longer with us. Now delete these texts. Ms. Vincent: Allan. Accused: Just remember what I said. Ms. Vincent: Allan this isn’t right…what did you do and why is this happening. Accused: I did what I did in order to survive. Survival of the fittest. Inn order for my family to survive. Ms. Vincent: Allan your scaring me…I can’t lose you. Tell me Allan. Accused: im a gangsta now. N this is a gangstas life im living Now. Ms. Vincent: And to do that you had to hurt someone. Allan don’t lie to me. Accused: All I can say is everybody shouldn’t have pushed me away or ignored me when I needed them. Ms. Vincent: I love you and I need you still. Does this have to do something with that guy who died in Sioux. Accused: Yes i was there that morning. Ms. Vincent: This isn’t right Allan…your scaring me. Accused: All good. Ms. Vincent: Nooo Allan not please noooo. Accused: Tho. Ms. Vincent: Please Allan please Allan nooooo. Accused: Didn’t I tell u with the right push I was gonna be someone else.

[29] Ms. Vincent testified that she did not know what the accused was talking about in these text messages. Ms. Vincent asked her brother if their text exchange had something to do with “that guy who died in Sioux” because she had recently read about someone having been fatally stabbed in Sioux Lookout and she thought her brother “might be involved in something.”

[30] Ms. Vincent testified that she drove to her mother’s house (Emma Kejick) immediately after exchanging these messages with the accused. She asked her mother if she had received strange text messages from the accused and her mother told her that she had.

[31] Ms. Vincent and her mother each looked at the messages the other had received from the accused. They were worried and concerned about the accused. Ms. Kejick contacted the police about these text messages soon after Ms. Vincent arrived at her home. Ms. Vincent did not discuss these text messages with her brother at any point in time.

[32] On cross-examination, Ms. Vincent testified that she was “pretty certain” that she exchanged these text messages with her brother “around” September 14, 2018. Ms. Vincent agreed that the accused “can be dramatic”. She also agreed that she observed changes in the accused’s behaviour and physical appearance around August or September 2018: he was preoccupied with his phone, tense, edgy and thinner than usual.

[33] Ms. Vincent testified that she had heard rumours that the accused had been using crystal meth at that time and that she was worried that he was also selling crystal meth. Ms. Vincent confirmed that she found what she thought was a crystal meth pipe when cleaning out a shed that her brother lived in at her mother’s house.

[34] Ms. Vincent was unable to recall if the police asked her where her brother was on September 5, 2018. She testified that she sent the police screenshots of the text messages and that the police did not ask to examine her phone.

EMMA KEJICK

[35] Ms. Kejick is the accused’s mother. She has resided at Frenchman’s Head, Lac Seul First Nation, for approximately 28 years. The accused last resided with Ms. Kejick around June or July 2018, at which time he lived in a shed beside her house.

[36] Ms. Kejick identified a transcript of a series of text messages she exchanged with the accused on September 14, 2018. These messages included the following:

Accused: I love you mom. The hardest part of this is sayin good bye to u. I love u mom and im gonna miss u. Ms. Kejick: Allan what’s going on? I love you too and where you going? Allan you are scaring me…what’s going to happen? Accused: Everybody’s gonna be safe. Except for me. I worked it out. Ms. Kejick: What about your kids…they need you and I need you too. Accused: In the long run everyone gets to live n be free. As for myself Its jail for awhile or death N jail may seem ideal. Ms. Kejick: When’s your next court date? Accused: But not when ur locked up for 25 years. Ms. Kejick: Did you kill someone? Accused: Im not talkin about the shit I did awhile ago. Ms. Kejick: Allan what did you do? You are scaring me? Accused: When the wrong people turn their backs on someone…that someone seeks a new place to be accepted. Lets just say im being accepted. All good. Remember I love u.

[37] Ms. Kejick testified that she and the accused have never discussed the contents of the text messages they exchanged on September 14, 2018.

[38] On cross-examination, Ms. Kejick agreed that the accused, over the summer of 2018, was losing weight, looked unhealthy, was “edgy” and constantly on his phone, causing her concern that he may have been “involved” in serious drugs. She acknowledged finding “some kind of drug pipe” among his belongings in July 2018.

DETECTIVE SERGEANT SEAN NICHOLS

[39] Detective Sergeant Nichols (“D/S Nichols”) was the primary investigator in the homicide of George Tait.

[40] D/S Nichols testified that the accused became a person of interest in this investigation on September 19, 2018, and a suspect on March 27, 2019. D/S Nichols concluded that he had grounds to arrest the accused for the homicide of George Tait on March 27, 2019. The accused was arrested on March 27, 2019.

[41] In anticipation of the arrest of the accused, D/S Nichols arranged for Detective Sergeant Connie Buckmuller (“D/S Buckmuller”) of the O.P.P. Behavioural Sciences Unit to attend Sioux Lookout to interview the accused subsequent to arrest.

[42] D/S Nichols observed but did not participate in D/S Buckmuller’s interview of the accused. When asked about his role in the case after the accused was interviewed, D/S Nichols testified that, “my role stays the same in that the investigation is completed and it’s still my job to direct the investigation to that point all the way to court.”

[43] On cross-examination, D/S Nichols explained that Mr. Kanate and Mr. Kejick had also been persons of interest in this investigation.

[44] D/S Nichols explained that Mr. Kanate became a person of interest because he was in the immediate area of the stabbing during the evening of September 5, 2018, was believed to have been intoxicated and agitated, had run from the police between 8:00 p.m. and 8:30 p.m. that night and had a previous manslaughter conviction in relation to a stabbing death.

[45] Mr. Kanate was arrested later that evening and found to be in possession of a knife. D/S Nichols did not know if Mr. Kanate was “dry celled” upon arrest. The knife found in Mr. Kanate’s possession was sent to the Centre of Forensic Science for examination.

[46] D/S Nichols testified that Mr. Kejick, who had a criminal record for violent offences, became a person of interest because he had been drinking with George Tait during the evening of September 5, 2018. Mr. Kejick was also seen by police with George Tait shortly prior to his death.

[47] Mr. Kejick was interviewed by police on September 7, 2018. Mr. Kejick advised investigators that, after encountering the police near 7th Ave. during the evening of September 5, 2018, he walked to his mother’s home and stayed there for the rest of the night. Mr. Kejick’s mother was interviewed and advised investigators that she did not arrive home until approximately 11:00 p.m. on September 5, 2018, at which time Mr. Kejick was at her home.

[48] On September 6, 2018, D/S Nichols directed the collection of all available surveillance video for the relevant time period from the general area of where George Tait was found on 7th Ave. Surveillance video from 10 locations was collected, including from the local Tim Hortons, for the time between noon and midnight on September 5, 2018.

[49] D/S Nichols testified that the Tim Hortons video captured patrons entering and leaving the store and “a small portion of the exterior.” The accused was not seen on this video. The other videos covered different areas of Sioux Lookout, including a portion of 7th Ave. The accused was not seen on any of these videos.

[50] D/S Nichols explained that the surveillance video collected by the police did not capture “the complete or entire route between Tim Hortons and [the location on] 7th Ave.” where George Tait was found.

[51] D/S Nichols did not know if investigators asked residents of Kejick Bay, Lac Seul First Nation, if the accused had been in that community on September 5, 2018. D/S Nichols acknowledged that investigators had not located any “electronic” evidence, including cell phone evidence, confirming the presence of the accused in Sioux Lookout on September 5, 2018. D/S Nichols confirmed that there was no forensic evidence connecting the accused to the homicide of George Tait.

[52] D/S Nichols testified that an individual named Jerico Winter attended the Sioux Lookout detachment of the O.P.P. on September 7, 2018, and confessed to the stabbing of George Tait. Immediately upon being formally interviewed by the O.P.P., Mr. Winter was eliminated as a suspect in the death of George Tait, one reason for this being that he told investigators that he had stabbed George Tait twice.

[53] D/S Nichols was cross-examined about the details of the accused’s confession to the stabbing of George Tait while the accused was being interviewed by D/S Buckmuller. In this interview, the accused stated, among other things, that he had stabbed George Tait twice. D/S Nichols conceded that this was “an inconsistency”, given that George Tait had been stabbed seven times.

DETECTIVE SERGEANT CONNIE BUCKMULLER

[54] D/S Buckmuller attended in Sioux Lookout March 25, 2019, to interview the accused. The interview was conducted between 9:01 p.m. and 11:56 p.m., March 27, 2019. A video recording of the interview was played during the trial and a copy filed in evidence. Voluntariness was conceded. It has not been suggested that the accused was under any form of duress or under the influence of any intoxicants at the time of the interview. During the course of the interview, D/S Buckmuller provided the accused with food and coffee. A synopsis of the interview follows.

STATEMENT OF THE ACCUSED MARCH 27, 2019

[55] D/S Buckmuller explained to the accused that he had been arrested for the first-degree murder of George Tait. She further advised the accused that George Tait had been killed between 8:30 p.m. and 8:50 p.m., September 5, 2018, and that a knife or sharp object had been used. The accused responded by asking who George Tait was.

[56] D/S Buckmuller asked the accused what he remembered about Wednesday, September 5, 2018. He responded that he remembered drinking in Kejick Bay, Lac Seul First Nation, that day and that he woke up the next morning at Derwin Littledeer’s house and saw that people were messaging him and asking where he was because “there had been a stabbing.” The accused further told D/S Buckmuller that he didn’t think much of it because he had nothing to do with it. D/S Buckmuller asked the accused to confirm that he had not been in Sioux Lookout on September 5, which he did.

[57] The accused was then asked if there was anyone who could “alibi [him] for September 5.” He replied that Stephanie Bird dropped him off in Kejick Bay around 4:00 – 4:30 p.m. that day and that he went out to “res parties” with Cheyenne Trout after that.

[58] D/S Buckmuller then advised the accused that the police knew that he was “there”, that the O.P.P. “have the best Ident Unit”, that the FBI calls on the O.P.P. to help them out and that they have talked with his mother, sister and other people who have told them that he is responsible for this crime. The officer then told the accused that she knew he was “responsible for George” but that she did not know why he had done it.

[59] The accused told D/S Buckmuller “well I think if you guys really did we’d be having a different conversation” and “I didn’t do anything I’ve been in Kejick Bay like I said.” D/S Buckmuller then suggested to the accused that he had been in Sioux Lookout “for that period of time and you had to get out of Sioux Lookout” and that Ms. Bird drove him to Kejick Bay “afterwards”.

[60] D/S Buckmuller and the accused then had the following exchange:

D/S Buckmuller: I do believe Stephanie was driving. Accused: Well I told you she was driving…fucking she drove me fucking back to Kejick Bay…just so I can drink. D/S Buckmuller: Sioux Lookout to Kejick Bay after George was stabbed. Accused: No it was before. D/S Buckmuller: Before George was stabbed. Accused: Probably I mean it was about 4:00 when she drove me to Kejick Bay four in the afternoon cuz I made the liquor store that evening…about six so.

[61] The accused was then asked where he had been in Sioux Lookout “before that that [Stephanie Bird] had to drive you?” He told D/S Buckmuller that he had been drinking that morning, that he was at 51A 7th Ave., from 10:00 a.m. until about 2:00 p.m., where he had seen “Danielle”. The accused told D/S Buckmuller that he then visited Ms. Bird’s father at the hospital until Ms. Bird and her boyfriend “Birdman” picked him up about 4:00 p.m., and that the three of them then went to the liquor store in Hudson about 5:00 p.m., where he purchased a bottle of vodka and Crown Royal before they drove to Kejick Bay.

[62] D/S Buckmuller told the accused that the O.P.P. were using a new system called the “Satellite Imagery Analysis Electro Optical Process,” also used by the military in Afghanistan, which employs satellite imagery to observe objects on the ground. She asked the accused if there was any reason that this process would observe him in the area of 7th Ave. between 8:30 and 8:50 p.m. the night that George Tait was stabbed. He replied “no”.

[63] D/S Buckmuller and the accused then talked about the accused selling drugs the previous year. The accused volunteered that before he went into custody in October 2018, he was “using quite a bit of [his] product” and “becoming more of a junkie than anything else.”

[64] After repeated denials of any involvement in the stabbing death of George Tait and some discussion about the September 14, 2018 text messages between the accused and his mother and sister, at approximately one hour and 47 minutes into the interview, the accused asked D/S Buckmuller how it helps him if he tells her what she wants to hear. She responds that she wants to hear the truth. The accused then asks for a cigarette and tells D/S Buckmuller that if she gets him a cigarette he will “finish talking if not then take me back to my cell.”

[65] D/S Buckmuller and the accused then leave the interview room and go to the garage to allow the accused to smoke. They return after five minutes and resume the interview.

[66] The accused once again denied any involvement in the offence. D/S Buckmuller, in a lengthy monologue, called the accused weak and cowardly and asked if he was “man enough to tell the truth cuz that takes a real man.” At approximately the two hour and ten minute point in the interview, the accused stated, “well since all the pieces point to me then yes I did it.”

[67] D/S Buckmuller asked the accused if he meant to kill George Tait. He replied that he did not, that they got into an altercation, that George Tait was bigger than him and that he was scared and panicked. The accused added that “maybe around the fourth time after I got hit I panicked and reached in my pocket pulled out my knife and I stabbed him.” The accused told D/S Buckmuller that this happened “on 7th” and that he did not remember what he did with the knife. The accused described the knife as having a black blade and handle and “maybe the size of that recording tape.”

[68] D/S Buckmuller asked the accused what he and George Tait argued about. He replied that George Tait had asked him if he had any “points” on him. When he replied that he did not and began to walk away, George Tait grabbed him and told him not to go anywhere because he was talking to him. The accused told D/S Buckmuller that he then tried to walk away again, “got hit in the back of the head turned around I got hit again and kept getting hit.” D/S Buckmuller asked the accused where he went after this altercation. He told her that he went to “Danielle’s cleaned up caught my ride out…[with] Steph.”

[69] D/S Buckmuller then drafted a rough sketch of the 7th Ave. area of Sioux Lookout and asked the accused to point out where the altercation between he and George Tait occurred. The accused pointed to a location on the sketch, which D/S Buckmuller marked with an “x”, and said “we probably have to be on the road maybe about here because it was a few houses away from Danielle’s.”

[70] D/S Buckmuller asked the accused why he was telling her what he had told her. He replied, “because I feel trapped…like you said everything points to me so nothing left for me to do but to say I did it…so…I guess I did it.” D/S Buckmuller then asked the accused how many times he stabbed George Tait. He replied, “I stabbed him twice.” The officer asked the accused if he had stabbed George Tait “in front or behind.” He replied, “in front cuz I was able to turn around after the third hit and when I turned around I got hit and then I panicked.”

[71] D/S Buckmuller asked the accused who was at Danielle’s house when he went there after the stabbing. He told the officer that there were people sleeping in her living room but that he only saw Danielle. He added that he went straight to the washroom and “washed up.”

[72] The accused told D/S Buckmuller that he had been wearing black capris, a white shirt, a black hat, white shoes and a batman style backpack on September 5, 2018. At the request of D/S Buckmuller, the accused drew a sketch of the knife that he had stabbed George Tait with on September 5, 2018. He did so and the drawing was put into evidence.

[73] The accused also told D/S Buckmuller that he had been selling drugs in and around Sioux Lookout on September 5, 2018, and that he was travelling from Tim Hortons after completing his last transaction when he encountered George Tait. The accused told D/S Buckmuller that he “walked down the street” to 51A 7th Ave., after stabbing George Tait. The accused stated that he checked the time when he was at Danielle’s and that it “was about 9:30 p.m.” He estimated that Stephanie picked him up at “ten or eleven” p.m. on September 5, 2018.

[74] The interview ended shortly before midnight on March 27, 2019.

[75] In cross-examination, D/S Buckmuller agreed that the accused had provided her with two different versions of events during the interview – one being that he had nothing to do with George Tait’s death and the other being that he reacted to being assaulted by George Tait. She also acknowledged that she told the accused the date and time of the incident, that George Tait had been stabbed more than once, that one of the stab wounds was fatal and that he had died as a result of his injuries.

[76] D/S Buckmuller agreed that because the accused had initially denied involvement in the stabbing, she would have expected the investigation to have continued after the March 27, 2019 interview, including the questioning of Derwin Littledeer, Ms. Bird and “Danielle” from 51A 7th Ave., and a review of any video surveillance from the Hudson liquor store and the Sioux Lookout hospital for September 5, 2018.

[77] D/S Buckmuller conceded that she had not reviewed the PM Report prior to her interview of the accused and that she did not know that George Tait had suffered seven stab wounds. She testified that she was never instructed, during or after the interview, to attempt to clarify the discrepancy between the actual number of stab wounds and the accused’s statement that he stabbed George Tait two times.

[78] D/S Buckmuller was not aware that the accused was not seen on any of the video surveillance of portions of Sioux Lookout viewed by the investigative team for September 5, 2018, including the Tim Hortons video. She testified that this would concern her if in fact the video captured the entire route described.

ETHAN GOODWIN

[79] Mr. Goodwin is the accused’s cousin. On September 28, 2018, while en route from Thunder Bay to Lac Seul First Nation by car, he and the accused had a conversation about George Tait’s murder. According to Mr. Goodwin, the accused raised the subject and said that he knew “who did it”.

[80] On cross-examination, Mr. Goodwin testified that he recalled the accused saying that “someone’s going to go away for a long time for this murder” and that “he thinks he knows who did it.”

[81] Mr. Goodwin testified that both he and the accused were heavy crystal meth users during the summer of 2018.

CONRAD TROUT

[82] Mr. Trout is a member of Lac Seul First Nation. He has known the accused since they were teenagers.

[83] Mr. Trout recalled being at a drinking party at the home of Alex Lac Seul during the winter months “a couple of years back” when, “like about two o’clock in the morning…Allan Yerxa and another guy came walking in.” Mr. Trout testified that he knew that the accused had been “around all summer like prior to that…and he was in a little shack like beside his mom’s trailer.”

[84] Mr. Trout testified that he is an ex-gang member, having “got out” in 2010. He recalled overhearing “Allan and that other guy” talking at this drinking party about “climbing the ranks and stuff like that.” He testified that he heard the accused saying, “like got away with it once. You know, stuff like that, get away with it again. I don’t know.”

[85] On cross-examination, Mr. Trout confirmed that everyone at this drinking party was heavily intoxicated and that he did not know what the accused had been talking about when he said, “I got away with it once”.

AGREED STATEMENT OF FACTS

[86] The relevant evidence from the Agreed Statement of Facts is as follows:

Patrick Kanate

• Mr. Kanate’s criminal record includes convictions for assault causing bodily harm, manslaughter and possession of a weapon in the years 2008, 2011 and 2017, respectively;
• Mr. Kanate’s manslaughter conviction resulted from a stabbing subsequent to an argument and alcohol was involved;
• Mr. Kanate was drinking at Danielle McKay’s residence (51A, 7th Ave., Sioux Lookout) during the day and early evening of September 5, 2018;
• Mr. Kanate and Roxanne Bunting left 51A 7th Ave., sometime between 7:00 p.m. and 8:00 p.m., September 5, 2018, and engaged in an altercation on 7th Ave.;
• Police attended to this altercation at 8:22 p.m. September 5, 2018 and observed Mr. Kanate walking away towards a wooded area near 51A 7th Ave.;
• Mr. Kanate was arrested on September 5, 2018, at 11:25 p.m. and found to be in possession of a knife;
• DNA profiles from the blade and handle of the knife seized from Mr. Kanate were inconclusive for blood;

Stacey Kejick

• Video footage records Mr. Kejick, George Tait, Ms. Beardy and Mr. Duncan walking from 7th Ave., east up Roy Lane and into the adjacent bush area, known as the “Water Tower”, at 7:05 p.m., September 5, 2018. These individuals were drinking at the “Water Tower” for approximately 1.5 hours;
• Police attended this area between 8:00 p.0m. and 9:00 p.m., September 5, 2018, and observed Mr. Kejick walking west on Roy Lane towards 7th Ave., then walking north on 7th Ave. and turning into 69 7th Ave. Police also observed George Tait walking north along the bush line just east of Roy Lane.

THE POSITION OF THE CROWN

[87] The Crown submits that the September 14, 2018 text messages from the accused to his sister and mother are “confessions”.

[88] The Crown submits that the accused told D/S Buckmuller that he “drank” and was “intoxicated” when he sent these text messages but that he did not say that he did not recall sending the text messages, that he was in the midst of a drug induced “psychosis” when he did so or that he was seeking attention from his mother and sister as a reason for the contents of the messages.

[89] The Crown points out that the accused’s response, when confronted with the text messages he sent to his mother and sister nine days after the stabbing of George Tait, was “well if you guys had this fucking the whole time what took you guys so fucking long then.” The Crown submits that the accused’s comments about these text messages in his interview with D/S Buckmuller are inconsistent with a suggestion that the accused sent these messages while in a drug induced psychosis or as an attention seeking mechanism.

[90] The Crown submits that Mr. Trout testified about overhearing the accused boasting at a drinking party about getting “away with it” and “climbing the ranks.” The Crown acknowledges that Mr. Trout was confused about when this party took place. However, the Crown contends that Mr. Trout clearly recalled the party taking place during the winter following the summer that the accused lived in a shed beside his mother’s house. The Crown suggests that this establishes that the party took place in late 2018 or early 2019.

[91] The Crown submits that the accused, while sober and free from any form of duress, admitted to D/S Buckmuller that he stabbed George Tait on September 5, 2018. The Crown contends that the truthfulness of that confession has been established beyond a reasonable doubt.

[92] The Crown submits that the accused, on March 27, 2019, six months after September 5, 2018, was able to recall that he “believed it was sunny” and that he had been drinking in Kejick Bay that day. The Crown submits that if the accused was using drugs and drinking heavily at that time as he suggested, it is doubtful that the accused would clearly recall the weather and where he was six months later.

[93] The Crown acknowledged that the accused was not seen on any of the video footage of Sioux Lookout for September 5, 2018, and that there is no evidence putting him in Sioux Lookout that day, but for his March 27, 2019 statement.

[94] The Crown submits, however, that the Tim Hortons video of the interior of the building does not cover the entire inside footprint of the building. The Crown further submits that the video footage from outside Tim Hortons does not cover the entire perimeter of the building. The Crown also notes that the accused told D/S Buckmuller that he was “at” and not “inside” Tim Hortons when conducting a drug sale prior to encountering George Tait on 7th Ave.

[95] The Crown submits that it is logical to assume that the accused would have conducted his drug transaction outside of the Tim Hortons building. The Crown suggests that it is possible that the accused was “at” Tim Hortons in Sioux Lookout on September 5, 2018, prior to meeting George Tait on 7th Ave, as he told D/S Buckmuller, and not have been captured on the Tim Hortons video.

[96] The Crown further submits that the majority of the video footage seized by police during this investigation was from locations east of 7th Ave. and not, therefore, of the route that the accused told D/S Buckmuller that he travelled. Others, according to the Crown, were from cameras located inside of buildings. The Crown contends that it is possible that the accused travelled from Tim Horton’s, along 7th Ave. to the location where George Tait was found, without being captured on the video footage that was seized.

[97] The Crown further submits that the fact that police were unable to secure any evidence of the accused’s cell phone being used in and around Sioux Lookout on September 5, 2018, is immaterial because his phone underwent a factory reset, apparently erasing data from the phone on September 6, 2018, the day following George Tait’s stabbing.

[98] The Crown submits that the truthfulness of the accused’s confession to D/S Buckmuller has been proven beyond a reasonable doubt, and that it has proven beyond a reasonable doubt that the accused stabbed and caused the death of George Tait on September 5, 2018, such that he should be found guilty of manslaughter.

THE POSITION OF THE ACCUSED

[99] The accused submits that the Crown has failed to prove beyond a reasonable doubt the veracity of the accused’s March 27, 2019 confession to the September 5, 2018 stabbing of George Tait. The accused contends that the confession, in which he states that he stabbed George Tait two times, is not supported by any independent, corroborative evidence. The accused suggests that there are simply too many “absences of evidence” to support a conviction based on the accused’s confession alone.

[100] In the alternative, assuming that the Crown has proven the truth of the inculpatory portions of the accused’s statement wherein he admitted stabbing George Tait two times, the accused submits that his actions were in response to George Tait attacking him and reasonable in the circumstances, such that he acted in self-defence.

[101] The accused submits that the interview technique employed by D/S Buckmuller when interviewing the accused on March 27, 2019, is inherently dangerous because it can induce false confessions. That danger is exacerbated in this case, firstly, due to the fact that any details about the stabbing communicated by the accused to D/S Buckmuller in his confession were provided to him by the officer earlier in the interview and, secondly, because of the lack of any corroborating evidence to support the confession, according to the accused.

[102] The accused submits that D/S Buckmuller, in response to him denying responsibility for more than two hours, repeatedly brought him back to the police knowledge of his culpability by telling the accused, “we know you were there”, “we know that you did it”, and “the only question we have is why did you do it?”

[103] The accused submits that he was drinking and using crystal meth heavily during the summer and fall of 2018. The accused contends that he told D/S Buckmuller this and that it is corroborated by the evidence of his mother, sister and Ethan Goodwin. The accused suggests that as a result, he was a “vulnerable individual”, possibly suffering from drug induced psychosis in September 2018, and therefore highly susceptible to the suggestive techniques employed by D/S Buckmuller on March 27, 2019.

[104] The accused submits that the interview technique used by D/S Buckmuller puts overbearing pressure on a vulnerable individual with a poor recollection of events six months earlier, such as himself. The very real possibility of this technique inducing a false confession from a vulnerable individual makes it imperative that the admission itself be carefully scrutinized for consistency with known facts and that the presence or absence of corroborating evidence form part of any analysis as to the truthfulness of the alleged confession, according to the accused.

[105] The accused submits that the only inculpatory information he communicated to D/S Buckmuller on March 27, 2019, was, “yes I did it”, “I stabbed him”, “on 7th”, “I stabbed him twice” and “in the front”. These facts, but for the fact that George Tait was stabbed on the front of his body, were given to the accused by D/S Buckmuller earlier in the interview, according to the accused. The accused submits that nothing in his confession confirms his independent knowledge of any details of the stabbing of George Tait.

[106] The accused submits that the fact that he told D/S Buckmuller that he stabbed George Tait twice, when he was in fact stabbed seven times, should in and of itself raise a doubt as to the truthfulness of this alleged confession. The accused reminds this court that D/S Nichols summarily rejected the “confession” of Jerico Winter primarily because he told police, two days after George Tait was stabbed, that he had stabbed him twice.

[107] The accused also notes that D/S Buckmuller was not even aware that George Tait had been stabbed seven times and that D/S Nichols failed to advise her of this fact during the March 27, 2019 interview, resulting in this glaring inconsistency not being presented to the accused prior to the completion of the interview.

[108] Notoriety, a desire to have people feel sorry for you or a desire to climb the ranks of a criminal organization are possible reasons for an accused person to falsely confess to a crime they did not commit, according to the accused.

[109] The accused submits that the text messages exchanged between the accused and his mother and sister on September 14, 2018, are not in any way a “confession” to the stabbing of George Tait, or corroborative of his March 27, 2019 admissions, as suggested by the Crown.

[110] First, the accused submits that it is not clear what he is talking about in the text messages. The accused also suggests that the evidence about his personality and lifestyle in September 2018 has to be considered in order to put the content of these text messages into context.

[111] The accused was heavily abusing both alcohol and crystal meth at the time, to the extent that his behaviour and physical condition were of concern to both his sister and mother, according to the accused. The accused was also known to be dramatic and to have engaged in self-aggrandizing talk and behaviour in response to being shunned by his family.

[112] The accused submits that there are certain aspects of his statement that should cause the court very serious concern about the truthfulness of the inculpatory portions of it. Given this concern, the accused submits that it is logical for a trier of fact to query why he would send these text messages and make a false confession six months later.

[113] The accused contends that a reasonably plausible explanation is that over the course of time, between September 5 and 14, 2018, the accused may have come to believe that he was involved in the stabbing of George Tait, possibly because he was suffering from a drug induced psychosis in September 2018.

[114] The accused submits that the greatest concern in the consideration of the truthfulness of his March 27, 2019 confession is the absence of any independent, corroborating evidence confirming his presence in Sioux Lookout on September 5, 2018. The absence of this critical evidence contributes to reasonable doubt, according to the accused.

[115] In the March 27, 2019 interview, the accused told D/S Buckmuller that he walked to “Danielle’s” house at 51A 7th Ave., after stabbing George Tait, that he “washed up” there and that he “saw” Danielle. We know from the Agreed Statement of Facts that this is Danielle McKay. The accused submits that there is no evidence from Ms. McKay confirming his presence at her house during the evening of September 5, 2018, and no evidence that the police attempted to obtain such evidence.

[116] In the March 27, 2019 interview, the accused also told D/S Buckmuller that Ms. Bird picked him up from Ms. McKay’s house at sometime around 10:00 or 11:00 p.m., September 5, 2018, and drove him to Kejick Bay. The accused submits that there is no evidence from Ms. Bird confirming that she did so and no evidence that the police attempted to obtain such evidence.

[117] The accused submits that there is no evidence confirming that his cell phone was used in or around Sioux Lookout on September 5, 2018, and no evidence that the police attempted to confirm or refute his alibi of being in Kejick Bay on September 5, 2018.

[118] The most troubling “absence of evidence”, according to the accused, is that neither he nor anyone wearing clothing similar to what he described himself as wearing that night was seen on the extensive video footage of Sioux Lookout seized by the police. The accused described being at Tim Hortons, travelling from there down 7th Ave. to the location where he encountered George Tait, and then to 51A 7th Ave., after stabbing George Tait. The accused submits that it is incomprehensible that his image, or that of someone similar, would not have been caught on video if his confession was truthful. The accused submits that the evidence in this case does not adequately explain the fact that he was not seen on the extensive video footage seized by police if his statement was in fact truthful.

[119] The accused submits that the absence of a single item of independent evidence to corroborate what he told D/S Buckmuller must raise a reasonable doubt as to the truthfulness of his confession.

[120] The accused submits that the court has heard no evidence from, and very little about, either Mr. Kejick or Mr. Kanate.

[121] Mr. Kejick was with George Tait immediately prior to the stabbing and was known to have been intoxicated, agitated and aggressive, to a degree which frightened Ms. Beardy. The limited police investigation of Mr. Kejick revealed that he did not have an alibi for the time of the stabbing, according to the accused.

[122] Mr. Kanate, an individual with a previous manslaughter conviction resulting from a stabbing and who was in the immediate area around the time that George Tait was stabbed, was arrested late in the evening of September 5, 2018, and found to be in possession of a knife. The accused submits that the fact that there was no forensic evidence of George Tait’s blood on Mr. Kanate’s knife does not mean that it was not used to stab him.

[123] The accused contends that, given all of the above, it would be dangerous to convict based on the contents of his March 27, 2019 interview alone.

[124] The accused submits, in the alternative, that if the court finds that the inculpatory portions of his March 27, 2019 statement have been proven truthful beyond a reasonable doubt, the court must also accept as truthful the exculpatory portions of the statement in which the accused said that he acted in self-defence in response to an unprovoked attack on him by George Tait.

[125] The accused submits that he told D/S Buckmuller that George Tait, who was bigger than him, grabbed him as he tried to walk away, hit him on the back of his head, hit him again, that he was “scared” and he “panicked”, and “maybe around the fourth time after I got hit I panicked and reached in my pocket pulled out my knife and I stabbed him.” The accused notes that D/S Nichols testified that George Tait was known to the police and that he had a record for violence. The accused also reminds the court that Ms. Beardy testified that George Tait was intoxicated on September 5, 2018, which was confirmed by Dr. MacDonald.

[126] The accused submits that George Tait suffered six non-fatal stab wounds in addition to the fatal wound. The accused reminds the court that Dr. MacDonald testified that one to seven implements could have been used to inflict these wounds and that they could have been inflicted up to one hour apart. The accused submits that this evidence is not inconsistent with him being responsible for two of the non-fatal stab wounds. If so, the accused submits that this is a reasonable use of force in response to an unprovoked attack from a larger, intoxicated assailant.

GOVERNING PRINCIPLES

The Burden of Proof and Reasonable Doubt

[127] The Crown’s burden of proof to establish the guilt of the accused beyond a reasonable doubt is foundational and a sacred principle of our criminal justice system. This burden rests with the Crown throughout the trial and does not shift.

[128] The standard of proof beyond a reasonable doubt is inextricably intertwined with the fundamental principle than an accused is presumed innocent until his or her guilt is proven beyond a reasonable doubt. The fact that an accused has not testified is irrelevant to the analysis of whether the Crown has discharged its burden of establishing the guilt of the accused beyond a reasonable doubt, regardless of any defence advanced by the accused.

[129] A reasonable doubt is a doubt that is based upon reason and common sense. A reasonable doubt is logically connected to the evidence or the absence of evidence. More is required than proof that the accused is probably guilty – a trier of fact who concludes only that an accused is probably guilty must acquit: see R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 36.

The Evidentiary Use of Confessions

[130] It has long been established that where the Crown tenders an accused’s out-of-court statement which contains both inculpatory and exculpatory information, it must tender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused: see R. v. Rojas, [2008] 3 S.C.R. 111, at para. 37.

[131] Once the statement of any witness, including an accused, is admitted into evidence, the trier of fact must consider the entirety of that statement as original evidence. The trier of fact may accept some, part or none of the statement. It is incorrect for a trier of fact to apply a different burden of proof to suggest a presumption of truthfulness for incriminating statements made by an accused and a presumption against truthfulness for exculpatory aspects of the same statements: see R. v. Samuels (2005), 196 C.C.C. (3d) 403 (Ont. C.A.), at para. 29.

[132] Where an accused’s statement contains both inculpatory and exculpatory parts, the exculpatory portion of the accused’s statement only need raise a reasonable doubt even if it is not believed to be true. The inculpatory portion of an accused’s statement can only support the Crown’s case if the trier of fact is satisfied of its truth beyond a reasonable doubt: see R. v. Harrison (2001), 87 B.C.L.R. (3d) 313 (B.C.C.A.), at para. 44.

[133] In R. v. Bucik, 2011 ONCA 546, at paras. 31 and 32, the Ontario Court of Appeal was critical of the portion of the trial judge’s jury charge explaining how the jury should consider the exculpatory parts of an accused’s out of court statement. The court explained that the jury should have been instructed that the exculpatory portion of the accused’s statement had potential value for the defence, even if it was not believed, as long as it was not rejected by the jury as untrue.

[134] In Bucik, at para. 33, the court noted that the lesson to be learned from R. v. W. (D.), [1991] 1 S.C.R. 742, is that the assessments of the credibility or reliability of exculpatory evidence in a criminal case do not raise either/or choices, but must reflect the application of the burden of proof on the Crown to prove its case beyond a reasonable doubt. At para. 34, the court held that the jury should have been told that unless it rejected the exculpatory portion of the accused’s statement as untrue, it could consider the accused’s exculpatory statement in the context of the rest of the evidence when deciding whether the Crown had discharged its burden of proof.

[135] A trier of fact’s evaluation of the truthfulness of an accused’s confession in the context of an alleged false confession must consider all of the independent evidence confirming or undermining the reliability of the accused’s admission of responsibility: see R. v. Fry, 2011 BCCA 381, at para. 55.

[136] In Canadian law, there is a well-established distinction between an exculpatory statement by an accused that is disbelieved and one that is determined to have been fabricated or concocted to avoid culpability: see R. v. Wright, 2017 ONCA 560, at para. 38. The importance of this distinction lies in the fact that while a statement that “is merely disbelieved is not evidence that strengthens the Crown’s case”, a statement that has been deliberately concocted can be capable of supporting an inference of guilt: R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.), at para 38. In other words, where the Crown can prove that an accused’s exculpatory statement was not simply untrue, but an intentional fabrication, the trier of fact is entitled to draw an inference that the accused lied to conceal their guilt: see R. v. Al-Enzi, 2021 ONCA 81, at para. 38.

[137] In order to prove an intentional fabrication, the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement: Al-Enzi, at para. 39. However, in R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47, the Ontario Court of Appeal held that:

Independent evidence of concoction can…be found in the very content of the impugned statements, depending on the context in which they were made. Independent, in this sense, means that the evidence of concoction is separate from the evidence of guilt, not necessarily separate from the statements themselves. For example, where an accused had made contradictory exculpatory statements, the self-contradiction of an accused may constitute independent evidence of fabrication. [Citations omitted.]

[138] In Al-Enzi, the Ontario Court of Appeal, at para. 41, instructed that where such independent evidence of fabrication exists, the following principles should be applied by the trier of fact:

1. The trier of fact may, but does not have to, disbelieve the accused’s exculpatory statement;
2. If the statement is disbelieved, is there other, independent evidence upon which the trier of fact may, but does not have to, find that the accused fabricated the exculpatory statement;
3. If, on the basis of the independent evidence, the trier of fact does not find that the accused fabricated the statement, the statement must be ignored and treated as if it had never been made;
4. By contrast, if the trier of fact does find that the accused fabricated the statement, they may consider the reason why the accused fabricated the statement, including whether it was to conceal their involvement in the offence charged. This determination must be made in light of all the evidence.

Self-Defence

[139] The defence of self-defence contains three essential elements. Section 34(1) of the Criminal Code, R.S.C. 1985, c. C-46, states that a person is not guilty of an offence if that person believes on reasonable grounds that force is being used against them, that the act that is the subject matter of the offence is committed for the purpose of defending themselves from that force and the act committed is reasonable in the circumstances. The first and second of these essential elements relate to the accused’s state of mind; the third relates to the accused’s actions: see R. v. Mohamad, 2018 ONCA 966, 369 C.C.C. (3d) 211.

[140] The defence fails if the Crown proves beyond a reasonable doubt that any one of the essential elements has not been met. The accused does not have to prove anything. If the evidence in support of the defence of self-defence is believed, the accused must be found not guilty. If the evidence of self-defence is not accepted, but raises a reasonable doubt, the accused must be found not guilty. Even if the evidence in support of self-defence does not raise a reasonable doubt, it must still be determined whether or not, on the basis of all of the evidence, the accused is guilty.

The Phenomenon of False Confessions

[141] In R. v. Pearce, 2014 MBCA 70, 318 C.C.C. (3d) 372, the Manitoba Court of Appeal, in ordering a new trial, found that in the context of that case, the trial judge should have cautioned the jury about the phenomenon of false confessions in order to ensure a fair trial.

[142] In Pearce, at paras. 48-60, the Manitoba Court of Appeal devoted extensive obiter discussion to the phenomenon of false confessions, the salient points of which are as follows (all citations omitted):

• A confession is like no other evidence. Our system of justice accepts that an accused can be convicted solely on the basis of their own confession without any confirmatory evidence of its truth. A confession is seen as such a powerful piece of evidence because of the logic that an innocent person is unlikely to incriminate themselves;
• In R. v. Oickle, the Supreme Court of Canada recognized that false confessions during police interrogations do occur and can contribute to wrongful convictions. The Supreme Court recognized the phenomenon as counterintuitive in nature, which can lead to miscarriages of justice;
• The scant empirical evidence about the phenomenon of false confessions that does exist suggests that the phenomenon is real and cannot be ignored;
• Why someone would falsely confess to a crime is often difficult to pinpoint. Causes of a false confession in the context of a custodial interrogation are often a combination of factors such as: (1) the vulnerability of a suspect (e.g., low intelligence, poor memory, mental illness, youth or extreme age, a significant personality trait or disorder, the fulfillment of a psychological need such as a desire for notoriety); (2) the circumstances and nature of the custodial confinement and interrogation; and (3) the manner of police interrogation (e.g., the use of fabricated evidence);
• Not every false confession is a result of the police inducing the innocent to say they are guilty. Some false confessions are made voluntarily and for a deliberate purpose;
• Our system of justice accepts that police interrogation of a suspect, when properly done, is a fruitful source of information to solve crimes. Together with that willingness to rely on confessions as evidence, however, is the countervailing desire to ensure that claims of false confessions have a fair process to ensure their proper adjudication;
• Not all claims of false confessions can be properly adjudicated by application of the confessions rule which focusses on the issue of voluntariness and is limited to statements made to persons in authority. There are examples of false confessions that may not be excluded from being admitted into evidence by the confessions rule, for example: false confessions without external pressure because of an ulterior purpose (notoriety, to relieve guilt, illness or a disorder, or to protect another); false confessions to escape the pressure of police interrogation; and false confessions because of being temporarily persuaded of guilt by a skilful interrogator.

DISCUSSION

[143] The Crown’s case is based almost exclusively on the inculpatory portion of the accused’s March 27, 2019 statement to D/S Buckmuller. For the purposes of this analysis, the March 27, 2019 statement of the accused can be divided into three parts:

1. The accused initially told D/S Buckmuller that he had been drinking in Kejick Bay on September 5, 2018, and that he woke up on September 6, 2018, at the home of Derwin Littledeer. When he awoke, the accused noticed that people had been messaging him about “a stabbing”. The accused was specifically asked by D/S Buckmuller if he had been in Sioux Lookout on September 5, 2018, and he told her that he had not. When asked if there was anyone who could “alibi [him] for September 5, the accused told D/S Buckmuller that Stephanie Bird had dropped him off in Kejick Bay around 4:00 – 4:30 p.m. that day and that he went out to “res parties” with Cheyenne Trout after that. (“Statement #1”);
2. The accused next told D/S Buckmuller that he had been in Sioux Lookout on September 5, 2018. He provided a detailed itinerary of his movements that day. Specifically, he told D/S Buckmuller that he had been drinking at Danielle’s home, located at 51A 7th Ave., between 10:00 a.m. and 2:00 p.m., that he visited Stephanie Bird’s father at the local hospital from 2:00 p.m. to 4:00 p.m. and that he was then picked up by Ms. Bird and her boyfriend “Birdman” at approximately 4:00 p.m. The accused told D/S Buckmuller that he and his companions then went to the liquor store in Hudson to purchase liquor prior to returning to Kejick Bay at approximately 5:00 p.m., September 5, 2018 (“Statement #2”); and
3. Finally, the accused told D/S Buckmuller that he had encountered George Tait in Sioux Lookout during the evening of September 5, 2018, after having completed a drug transaction at Tim Hortons. The accused told D/S Buckmuller that George Tait attacked him and that he panicked, reached into his pocket for his knife and stabbed George Tait twice. When asked to do so, the accused pointed out the location of this altercation on a sketch drafted by D/S Buckmuller. The accused further told D/S Buckmuller that, after his altercation with George Tait, he went to Danielle’s, where he saw Danielle and cleaned up before being picked up by Ms. Bird. The accused told D/S Buckmuller he was at Danielle’s at “about 9:30 [p.m.]” and that Ms. Bird picked him up at “10:00 or 11:00 [p.m.]” (“Statement #3”).

[144] As can be seen, Statement #3 contains both inculpatory and exculpatory evidence.

[145] There is no independent evidence confirming or undermining the accuracy or reliability of Statement #1, wherein the accused said that he had not been in Sioux Lookout on September 5, 2018.

[146] Specifically, there is no evidence from Ms. Bird, whom the accused initially said dropped him off in Kejick Bay around 4:00 or 4:30 p.m. on September 5, 2018. There is no evidence from Ms. Trout, with whom the accused said that he went to “res parties” that night. There is no evidence from Derwin Littledeer, at whose home the accused said he stayed at overnight on September 5, 2018.

[147] There is also no independent evidence confirming or undermining the accuracy or reliability of Statement #2, in which the accused said that he had been in Sioux Lookout on September 5, 2018, but that he had left town at about 4:00 p.m. As set out above, the accused told D/S Buckmuller that he had been drinking at Danielle’s between 10:00 a.m. and 2:00 p.m. that day before visiting Ms. Bird’s father at the hospital between 2:00 p.m. and 4:00 p.m., and then being picked up by Ms. Bird and “Birdman”, leaving Sioux Lookout and travelling to Hudson to buy liquor before returning to Kejick Bay.

[148] Specifically, there is no evidence from Danielle, Ms. Bird, her father or “Birdman”, nor is there any evidence either confirming or refuting the accused’s attendance at the Sioux Lookout hospital or his alleged purchase at the Hudson liquor store.

[149] However, Statement #1 and Statement #2, which are exculpatory and essentially present two different versions of an alibi, are contradictory and internally inconsistent. In Statement #1, the accused said that he had not been in Sioux Lookout on September 5, 2018. In Statement #2, the accused told D/S Buckmuller that he had been in Sioux Lookout on September 5, 2018, but that he left town hours before George Tait was stabbed. In both, he provided alibi information to D/S Buckmuller.

[150] The contradictory, exculpatory statements made by the accused to D/S Buckmuller cannot both be true. As a result of their contradictory nature, I do not believe Statement #1 or Statement #2, nor am I left in a reasonable doubt by those Statements.

[151] However, the Crown’s case is devoid of any evidence refuting either Statement #1 or Statement #2. More specifically, there is no independent evidence establishing that these statements were intentional fabrications on the part of the accused. The complete absence of such evidence is puzzling, to say the least.

[152] I recognize that pursuant to Ching, an accused’s self-contradiction alone, within a single statement, may constitute independent evidence of fabrication. However, in the absence of any independent evidence refuting the alibi evidence in either Statement #1 or Statement #2, I am not prepared to conclude that the accused fabricated Statements #1 and #2 such that an inference of guilt can be drawn from the self-contradiction alone.

[153] In these circumstances I conclude that Statement #1 and Statement #2 must be ignored and treated as if they had never been made.

[154] Statement #3 is both inculpatory and exculpatory. In Statement #3, the accused told D/S Buckmuller that he stabbed George Tait “twice”. He also told D/S Buckmuller that he did so in response to being attacked and struck multiple times by George Tait. In other words, he said that he was defending or protecting himself from George Tait.

[155] The Crown must prove the truth of the inculpatory portion of Statement #3 beyond a reasonable doubt. The evaluation of the truthfulness of the accused’s admission of responsibility in the context of the allegation that this was, or may have been, a false confession must consider all independent evidence confirming or undermining the reliability of the inculpatory portion of Statement #3.

[156] The independent evidence supporting the reliability of the inculpatory portion of Statement #3 consists of:

1. The September 14, 2018 text messages between the accused and his sister and mother;
2. The information that he provided to D/S Buckmuller as to the exact location on 7th Ave. where he stabbed George Tait;
3. The evidence of Ethan Goodwin;
4. The evidence of Conrad Trout; and
5. His statement to D/S Buckmuller that he stabbed George Tait “in the front”.

[157] The most significant portions of the accused’s text messages to his sister were:

• Im gonna go to jail for a while;
• 15-25 years if I get caught;
• All I can say is this persons no longer with us. Now delete these texts; and
• Yes I was [in Sioux Lookout] that morning (in response to his sister asking if the texts had something to do with “that guy who died in Sioux”).

[158] The most significant portions of accused’s text messages to his mother were:

• The hardest part of this is saying good bye to you;
• As for myself its jail for awhile or death N jail may seem ideal; and
• But not when ur locked up for 25 years.

[159] I reject the Crown’s suggestion that the accused’s September 14, 2018 text messages to his sister and mother amount to “confessions”. I also reject the defence submission that, between September 5, 2018, and September 14, 2018, the accused may have come to believe that he was involved in the stabbing of George Tait because he was possibly suffering from a drug induced psychosis at the time. While I accept that the accused was abusing both alcohol and crystal meth at that time, there is no evidentiary foundation to support the submission that he was psychotic or delusional at this or any other time.

[160] The meaning of these text messages is unclear, as is the accused’s condition at the time he sent them. At one point in the interview, the accused told D/S Buckmuller that he “was intoxicated” at the time he sent the text messages to his sister and mother. Later in the interview, the accused told D/S Buckmuller that “I coulda just been drunk and lying…to my mother and sister.”

[161] However, within these text messages, sent nine days after the stabbing of George Tait in Sioux Lookout, is an acknowledgement by the accused that his communication is in relation to “that guy that died in Sioux”, that he was in Sioux Lookout “that morning” and that he would be serving a very considerable custodial sentence if he “get[s] caught”. Further, in both the messages to his sister and mother, the accused is essentially saying goodbye and that he would miss them.

[162] In my view, the timing and content of these messages indicates a consciousness of guilt on the part of the accused in relation to a recent stabbing death in Sioux Lookout. I find that the content of the accused’s text messages to his sister and mother support the reliability of the inculpatory portion of Statement #3.

[163] Relatively early in the March 27, 2019 interview, D/S Buckmuller told the accused that George Tait was stabbed “in and around the area of 7th Ave.” Later in the interview, immediately after the accused told D/S Buckmuller that he had stabbed George Tait and after she asked him “where did that happen?”, the accused replied, “on 7th”. Shortly thereafter, the accused stated, “I can’t remember which part of 7th I know it was by the hospital.”

[164] D/S Buckmuller then drafted a very rough sketch of 7th Ave. and asked the accused to indicate on this sketch where his altercation with George Tait occurred. The accused pointed to a location, which D/S Buckmuller marked with an “x”, and said “we probably have to be on the road maybe about here cuz it was a few houses away from Danielle’s [at 51A 7th Ave.]”

[165] The accused being able to pinpoint the exact location on 7th Ave. where he stabbed George Tait is potentially cogent, independent evidence supporting the reliability of the inculpatory portions of the accused’s March 27, 2019 statement. However, the weight of this evidence is significantly diminished because neither Constable Capone, Constable Grant nor D/S Nichols confirmed that the location on 7th Ave. indicated by the accused on the sketch was in fact the location on 7th Ave. where George Tait was found by Ms. Beardy and Mr. Duncan.

[166] As D/S Buckmuller indicated to the accused, 7th Ave. is “a long street”. Inexplicably, D/S Buckmuller’s sketch, on which the accused pointed out a specific location where he said he stabbed George Tait, was not put to any of the above police officers at trial. The three Global Positioning System-O.P.P. documents put into evidence are of little assistance on this point.

[167] The best that I can conclude from the evidence as to location is that the accused, within the inculpatory portion of Statement #3, correctly identified the general location on 7th Ave. where George Tait was stabbed. This evidence also tends to support the reliability of the inculpatory portion of Statement #3.

[168] I find that the evidence of Ethan Goodwin and Conrad Trout provides little support to the reliability of the accused’s admission that he stabbed George Tait.

[169] Mr. Goodwin recalled that the accused, on September 28, 2018, raised the subject of George Tait’s death and that the accused told him that he knew “who did it.” However, on cross-examination, Mr. Goodwin qualified his recollection of this conversation and testified that he recalled the accused saying that “he thinks he knows who did it.”

[170] Mr. Trout recalled being at a drinking party during the winter months “a couple of years back” where the accused attended in the early morning hours. He recalled overhearing the accused say, “got away with it once…get away with it again” or words to that effect.

[171] I accept the Crown’s submission that this occurred sometime during the winter of 2018/2019. However, Mr. Trout acknowledged that everyone at this party was heavily intoxicated and that he did not know what the accused had been talking about.

[172] Given the frailties and ambiguity of the evidence of Mr. Goodwin and Mr. Trout, I find that it does not support the reliability of the inculpatory portion of Statement #3.

[173] Finally, the accused told D/S Buckmuller that he had stabbed George Tait “in the front”. This fact was not supplied to the accused by D/S Buckmuller. George Tait had in fact been stabbed on the front of his body. This tends to support the reliability of the inculpatory portion of Statement #3.

[174] The independent evidence, or absence of evidence, tending to undermine the reliability of the inculpatory portion of Statement #3, and which is suggested to raise a reasonable doubt as to the truthfulness of it, consists of:

1. The accused’s statement that he stabbed George Tait twice;
2. The lack of any evidence – eyewitness, video surveillance, cell phone, forensic – placing the accused in Sioux Lookout at any point in time on September 5, 2018; and
3. The evidence relating to Mr. Kanate and Mr. Kejick.

[175] D/S Buckmuller asked the accused how many times he stabbed George Tait. He replied, “I stabbed him twice.” D/S Buckmuller did not know that George Tait had in fact been stabbed seven times. D/S Nichols, who was aware of this fact, did not request that D/S Buckmuller resume the March 27, 2019 interview in an attempt to clarify what he acknowledged at trial to be “an inconsistency.”

[176] In my view, there is both a quantitative and a qualitative difference between stabbing someone twice and stabbing someone seven times. Investigators in this case summarily rejected as untruthful Jerico Winter’s confession to the stabbing of George Tait, one reason being that he told investigators that he had stabbed George Tait twice.

[177] The accused’s statement that he stabbed George Tait twice was substantively inaccurate. In my opinion, it is strong evidence undermining the reliability of the inculpatory portion of Statement #3.

[178] The accused also told D/S Buckmuller that he walked to Ms. McKay’s at 51A 7th Ave., after stabbing George Tait, saw Danielle while there and was picked up by Ms. Bird later that evening. This court has not heard from either Danielle McKay or Stephanie Bird nor heard evidence of any attempt to obtain evidence from them which could potentially confirm what the accused said. In my opinion, the absence of such evidence undermines the reliability of the inculpatory portion of Statement #3.

[179] This investigation also included the seizure of video surveillance from 10 locations in and around the general area where George Tait was found on 7th Ave., including the local Tim Hortons, for the time period between noon and midnight on September 5, 2018. The accused told D/S Buckmuller that he had been at the Tim Hortons prior to walking down 7th Ave. and encountering George Tait. He also told D/S Buckmuller that he had walked on 7th Ave. to Ms. McKay’s after stabbing George Tait.

[180] There is no evidence, in the accused’s statement or otherwise, that the accused made any attempt to conceal himself either before or after stabbing George Tait. Logically, there would be no reason for him to do so prior to the stabbing.

[181] None of the video footage seized by investigators captured the accused in Sioux Lookout at any time on September 5, 2018. There is no cell phone or other electronic evidence placing the accused in Sioux Lookout on September 5, 2018. There is no forensic evidence linking the accused to the stabbing of George Tait. There is no eyewitness evidence, from police officers or civilians, putting the accused anywhere on 7th Ave. on September 5, 2018, despite the fact that officers Capone and Grant patrolled 7th Ave. between 8:30 p.m. and 8:55 p.m. that evening in search of Mr. Kanate.

[182] In my opinion, it is logical and reasonable to expect that there should be some evidence, independent of the accused’s statement, which at the very least confirms the presence of the accused in Sioux Lookout on the day that George Tait was stabbed. The complete absence of any such evidence undermines the reliability of the inculpatory portion of Statement #3.

[183] The Crown’s case confirms the presence of Mr. Kanate and Mr. Kejick in the general area where George Tait was stabbed at or near the approximate time of the stabbing.

[184] The evidence establishes that Mr. Kanate was with Ms. Bunting in the area of 51A 7th Ave., at approximately 8:30 p.m., September 5, 2018. The Agreed Statement of Facts establishes that Mr. Kanate’s criminal record includes convictions for assault causing bodily harm in 2008, possession of a weapon in 2017 and manslaughter in 2011 arising from a stabbing. The evidence also establishes that Mr. Kanate had been drinking during the day and early evening of September 5, 2018, was engaged in an altercation with Ms. Bunting, departed the scene when police attended at this altercation at 8:22 p.m. and was in possession of a knife when arrested at 11:25 p.m., September 5, 2018.

[185] D/S Nichols testified that Mr. Kanate was a person of interest in the stabbing death of George Tait because of these facts.

[186] Mr. Kejick was drinking with George Tait, Ms. Beardy and Mr. Duncan shortly prior to George Tait being stabbed. Ms. Beardy testified that Mr. Kejick became “mean” and aggressive toward her and George Tait, and was “getting scary” as he became more intoxicated. The Agreed Statement of Facts confirms that police observed Mr. Kejick and George Tait walking separately, in different directions, at some point in time between 8:00 p.m. and 9:00 p.m. on September 5, 2018, and Mr. Kejick turning into 69 7th Ave.

[187] D/S Nichols testified that Mr. Kejick also had a criminal record for violent offences and that he was also a person of interest in this investigation.

[188] Mr. Kanate and Mr. Kejick were both present in the area of and within the general time frame of the stabbing. Both were intoxicated and both had a propensity for violence. Given these facts, it is reasonable to conclude that both had the opportunity, at least equal to that of the accused, to have stabbed George Tait on September 5, 2018.

[189] I find that it is reasonable to apply the evidence pertaining to Mr. Kanate and Mr. Kejick, together with all other evidence, to the analysis of whether the Crown has proven the truth of the inculpatory portion of Statement #3. I find that the presence of these individuals, particularly that of Mr. Kanate, in the area of the stabbing at around the approximate time of the stabbing, is a factor undermining the reliability of the inculpatory portion of Statement #3.

[190] The inculpatory portion of Statement #3 can only support the Crown’s case if I am satisfied of its truth beyond a reasonable doubt. I have considered, weighed and balanced all independent evidence which supports or undermines the reliability of the accused’s admission that he stabbed George Tait. As a reasonable doubt can also arise from the absence of evidence, I have also considered the absence of evidence that, logically and reasonably, should have been present in this case.

[191] The most significant evidence supporting the reliability of the inculpatory portion of Statement #3 is the accused’s September 14, 2018 text messages to his sister and mother and the contents of his statement as to the location on 7th Ave. of the stabbing of George Tait. The most significant evidence undermining the reliability of the inculpatory portion of Statement #3 is his statement that he stabbed George Tait twice, the evidence about Mr. Kanate and the absence of any evidence of any type establishing the presence of the accused in Sioux Lookout at any time on September 5, 2018.

[192] At the end of the day, balancing the above, I am not satisfied beyond a reasonable doubt of the truthfulness of the inculpatory portion of Statement #3. As the Crown’s case against the accused is based almost exclusively on the inculpatory portion of Statement #3, I find that the Crown has not discharged their burden of proving the guilt of the accused beyond a reasonable doubt. The accused is therefore found not guilty.

[193] In the event that I am incorrect in this conclusion and it is found that the Crown has proven the truth of the inculpatory portion of Statement #3 beyond a reasonable doubt, I will address the alternative position of the accused.

[194] The accused submits that when he stabbed George Tait twice on September 5, 2018, he was responding in a reasonable manner to an unprovoked attack on him by George Tait such that he acted in self-defence. The evidence in relation to self-defence consists of the accused’s statements about his altercation with George Tait found in Statement #3 and the evidence of Dr. MacDonald.

[195] The accused’s initial comments to D/S Buckmuller about his altercation with George Tait are as follows:

• We got in an altercation he was a bigger guy than me and I was scared I panicked;
• Well maybe around the fourth time after I got hit…I panicked and reached in my pocket pulled out my knife and I stabbed him.

[196] When the accused was asked by D/S Buckmuller what happened after he and George Tait argued, the accused responded:

• I tried to walk away and then he grabbed me and told me not to go anywhere cuz he was talking to me…and I tried to walk away and then next thing I knew I got hit in the back of the head turned around I got hit again and kept getting hit.

[197] A little later in the interview, D/S Buckmuller asked the accused how many times he stabbed George Tait. He replied, “I stabbed him twice.” He was then asked, “in front or behind?” He replied, “in the front cuz I was able to turn around after the third hit and when I turned around I got hit and then I panicked.”

[198] The evidence of Dr. MacDonald which is relevant to the issue of self-defence consists of the following:

• George Tait was approximately five feet, nine inches in height, approximately 210 to 220 pounds, well-muscled, stalky and previously healthy;
• George Tait suffered seven stab wounds, one of which was fatal and six of which were insignificant;
• The six, non-fatal stab wounds were located on the right side of George Tait’s chest (2), on his right arm (2), on his right flank and on his left upper chest;
• The fatal stab wound was on George Tait’s left chest and severed his left ventricle;
• Dr. MacDonald was unable to determine if one or multiple instruments inflicted the seven stab wounds, the order in which they were inflicted or the time between when the wounds were inflicted;
• Dr. MacDonald testified that it was possible that George Tait could have suffered the six non-fatal stab wounds and then the fatal wound 15 minutes later and that the seven stab wounds could have been the result of multiple incidents; and
• George Tait had a blood alcohol level of 222 milligrams of alcohol in 100 millilitres of blood at the time of autopsy and likely higher than this at the time of his death.

[199] Section 34 of the Criminal Code, which codifies the law of self-defence in Canada, was recently analyzed by the Ontario Court of Appeal in R. v. Khill, 2020 ONCA 151, 149 O.R. (3d) 639, leave to appeal granted, [2020] S.C.C.A. No. 97 (S.C.C.). The court provided the following overview of s. 34 at para. 38:

Self-defence renders an act that would otherwise be criminal, not culpable. The nature of the defence is evident in the jury instruction routinely used in murder cases. Jurors are told to first decide whether the accused caused the victim’s death. If the jury is satisfied the accused caused the victim’s death, the jury goes on to decide whether the accused acted unlawfully in causing the victim’s death. In answering this question, the jury considers self-defence. An act done in self-defence is not unlawful and death caused by that act is not culpable.

[200] Sections 34(1) and (2) of the Criminal Code provide:

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

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

a) the nature of the force or threat; b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; c) the person’s role in the incident; d) whether any party to the incident used or threatened to use a weapon; e) the size, age, gender and physical capabilities of the parties to the incident; f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; f.1) any history of interaction or communication between the parties to the incident; g) the nature and proportionality of the person’s response to the use or threat of force; and h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[201] As explained in Khill, at para. 42, self-defence, as defined in s. 34(1), has three elements:

• the accused must believe, on reasonable grounds, that force is being used or threatened against him: s. 34(1)(a) [the trigger];
• the act of the accused said to constitute the offence must be done for the purpose of defending himself: s. 34(1)(b) [the motive]; and
• the act said to constitute the offence must be reasonable in the circumstances: s. 34(1)(c) [the response]

[202] Section 34(1)(a), the “trigger”, focuses on the accused’s state of mind. The accused must have a subjective belief that force is being used or threatened against them. Absent that belief, the defence is not available. That belief, however, does not itself trigger the defence. For the defence to be triggered, the belief must be based on “reasonable grounds”: Khill, at para. 44.

[203] The requirement in s. 34(1)(a) that the belief be based on “reasonable grounds” imports an objective assessment of the accused’s belief. Reasonableness is ultimately a matter of judgment. A reasonableness assessment allows the trier of fact to reflect community values and normative expectations in the assignment of criminal responsibility: Khill, at para. 46.

[204] Section 34(1)(b), the “motive”, examines the motive of the accused and asks why they did the act which is said to constitute the offence. This inquiry is subjective: Khill, at para. 54.

[205] Section 34(1)(c), the “response”, examines the accused’s response to the perceived or actual use of force or threat of force. The response – “the act” – which would otherwise be criminal, is not criminal if it was “reasonable in the circumstances”: Khill, at para. 56.

[206] Section 34(2) requires that, in determining the reasonableness of the accused’s act, the court consider “the relevant circumstances of the person, the other parties and the act”. The Ontario Court of Appeal in Khill, at para. 57, determined that “this language signals that the reasonableness inquiry in s. 34(1)(c), like the reasonableness inquiry in s. 34(1)(a), blends objective and subjective considerations.” Likewise, the specific factors identified in s. 34(2) as relevant to the reasonableness inquiry blend objective and subjective considerations.

[207] In determining whether the accused should be acquitted on the basis of his self-defence claim, three questions must be addressed:

• Did the accused believe, on reasonable grounds, that George Tait, was attacking him? (s. 34(1)(a))
• Did the accused stab George Tait for the purpose of defending himself from being attacked by George Tait? (s. 34(1)(b))
• Was it reasonable in the circumstances for the accused to stab George Tait? (s. 34(1)(c))

[208] The accused can only be convicted if the Crown has established, beyond a reasonable doubt, that the answer to at least one of these three questions is “no”. The accused does not have to prove that he was acting in self-defence. The Crown is required to prove beyond a reasonable doubt that the accused was not acting in self-defence.

[209] The only evidence as to George Tait’s alleged assault on the accused (the “trigger”) and the accused’s alleged response (the “motive”) is set out in paragraphs 196 to 199 above. There is no evidence to the contrary.

[210] In general terms, that evidence establishes that George Tait, five feet, nine inches tall, 210 to 220 pounds, well-muscled, stalky and intoxicated, attacked and hit the accused multiple times and the accused, after attempting to “walk away” then, scared and panicked, stabbed George Tait on the front of his body.

[211] In considering s. 34(1)(a) and (b), it follows that the Crown is unable to prove, beyond a reasonable doubt, that the accused did not believe, on reasonable grounds, that he was being attacked by George Tait or that the accused’s stabbing of George Tait was not for the purpose of defending or protecting himself from that attack.

[212] Finally, pursuant to s. 34(1)(c) of the Criminal Code, the Crown must prove, beyond a reasonable doubt, that the accused’s stabbing of George Tait was unreasonable in the circumstances. In determining whether the actions of the accused were reasonable in the circumstances, I am required to consider the factors as set out in s. 34(2) of the Criminal Code, the relevant ones in this case being:

a) The nature of the force used by George Tait; d) whether a weapon was used; e) the size, age, gender and physical capabilities of George Tait and the accused; and g) the nature and proportionality of the accused’s response to the use of force.

[213] As the accused was trying to walk away from George Tait, he was grabbed by him and struck in the back of the head. The accused then turned around to face George Tait and was again hit multiple times. There is no evidence as to where these blows landed or the force of the blows. The accused responded by stabbing George Tait. The accused told D/S Buckmuller that he stabbed George Tait “twice”.

[214] The size and physical stature of George Tait is set out above. He was 41 years of age in September 2018. There is no evidence before me as to the accused’s age in September 2018 or his exact physical size. There is evidence from both the sister and mother of the accused that, during the summer of 2018, he looked unhealthy and was losing weight. There is also evidence that the accused was abusing alcohol and drugs at that time.

[215] I accept the submission of the accused that the evidence as to the altercation between the accused and George Tait, including the expert evidence of Dr. MacDonald, is not inconsistent with the accused having inflicted two non-fatal stab wounds on George Tait in response to being attacked by him.

[216] The Crown is required to prove, beyond a reasonable doubt, that the accused’s response to the unprovoked attack on him by George Tait was unreasonable in the circumstances. In considering the “nature and proportionality” of the accused’s response to this attack, I accept the submission of the accused that his response, pursuant to the available evidence, could have been limited to two insignificant, non-fatal stab wounds.

[217] I am not persuaded, in all the circumstances, that this was an unreasonable response and I therefore conclude that the Crown has failed to prove, beyond a reasonable doubt, that the accused’s response was unreasonable in the circumstances. An act done in self-defence is not unlawful and death caused by that act is not culpable. I would therefore find, in the alternative, that the accused is not guilty pursuant to s. 34 of the Criminal Code.

The Hon. Justice J. Fregeau Released: March 16, 2021