COURT FILE NO.: 18-1466
DATE: March 25, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Caitlin Downing, Counsel for the Crown
- and -
WILLIAM KIRBY
The Accused
Adrian Cleaver, Counsel for the Accused
HEARD: January 4-8, 11-13, 15, 2021
REASONS FOR DECISION
JAMES, J.
Introduction
[1] The accused, William Kirby, is charged with kidnapping, uttering a threat to cause bodily harm or death, aggravated assault and attempted murder. He is a 74-year-old retiree from Bell Canada. He was 72 at the time of the incident in question.
[2] The complainant Donna Hisko, is 61 years old. She worked as a stores clerk at Sandvic Steel (“Sandvic”), a manufacturing enterprise in Arnprior, Ontario where she had been employed for over 20 years. Sandvic closed its Arnprior facility in about December, 2019.
[3] Mr. Kirby and Ms. Hisko lived together for about 18 years. They both have adult children from prior relationships. They had recently separated leading up to the events of September 13, 2018.
[4] Company policy at Sandvic required employees who wished to smoke to leave the premises. Typically, Ms. Hisko would leave Sandvic in her vehicle and park nearby on her breaks and at lunch to smoke a cigarette.
[5] It was common for Mr. Kirby to meet Ms. Hisko outside Sandvic when Ms. Hisko was on break or lunch.
[6] Ms. Hisko said that their years together had been generally good but for approximately the last year Mr. Kirby was suspicious that she was seeing someone else. She described Mr. Kirby as controlling and persistent.
[7] Mr. Kirby questioned her frequently about her fidelity. His mistrustfulness prompted him to arrange for Ms. Hisko to take a lie detector test. Only Mr. Kirby saw the results of the test. He told her that the test indicated she was not being truthful.
[8] Subsequently, a second lie detector test was administered. It is not clear who requested it, Mr. Kirby or Ms. Hisko. Ms. Hisko acknowledged paying half the cost of the test. The lie detector operator told Mr. Kirby that Ms. Hisko answered the questions truthfully. Mr. Kirby did not accept the results of the second test. He accused Ms. Hisko of having bribed the operator.
[9] In the spring of 2018, Mr. Kirby sold the home in which the parties had been residing throughout their relationship. Mr. Kirby had breathing difficulties and knee trouble and was unable to help much with housekeeping. Ms. Hisko was finding it difficult to maintain the house on her own.
[10] Although they were unmarried and the home was registered solely in the name of the Mr. Kirby, after the sale closed, he gave the Ms. Hisko half of the equity, about $25,000. They discussed purchasing a home in nearby Arnprior. Ms. Hisko was not as enthusiastic as Mr. Kirby to buy another house. They ended up renting a house in Braeside, just outside Arnprior.
[11] Mr. Kirby’s continuing mistrustfulness was likely a significant factor in Ms. Hisko’s decision near the end of August, 2018 to separate. She moved into her parents’ home. They continued to talk frequently on the phone. Mr. Kirby also continued to show up at Sandvic after the separation to spend time with Ms. Hisko when she was outside the plant for a smoke break or at lunch. Workers at Sandvic got two ten-minute breaks per day and half an hour for lunch. Sometimes Mr. Kirby would park outside Ms. Hisko’s workplace during the day. Ms. Hisko thought he was spying on her. Police later found a notebook in Mr. Kirby’s vehicle with notes of licence numbers of vehicles belonging to Sandvic employees.
[12] Ms. Hisko had been considering retirement for several months. In early 2018 she had obtained the paperwork to retire but then put her retirement on hold. Mr. Kirby considered her uncertainty about retirement suspicious.
[13] It is clear that the Mr. Kirby wanted to get back together with Ms. Hisko and they discussed this possibility on several occasions. At the same time he made no secret of his firm belief that the Ms. Hisko had been unfaithful. It is also clear that Ms. Hisko was undecided about resuming the relationship.
[14] During the weeks following the separation, the Mr. Kirby was not eating or sleeping well. He lost weight. He was very distressed by the uncertainty of whether he and Ms. Hisko would get back together or not. He called her frequently when she was at work. Sometimes she would take the call; other times she would ignore them.
[15] Sometimes Mr. Kirby would pick her up at work and they would go somewhere quiet to talk. She didn’t see any harm in agreeing to these meetings.
[16] On September 7, 2018 they had dinner at a restaurant with friends and then went to their friends’ home to play cards. Ms. Hisko spent the night at Mr. Kirby’s place. Mr. Kirby says that this was one of the occasions when Ms. Hisko said she was prepared to resume their relationship. Ms. Hisko denied this. She said that she needed some space and was unsure whether to resume the relationship or not. After returning to her parents’ home on September 8, Ms. Hisko called Mr. Kirby and said that she wasn’t coming back.
[17] Mr. Kirby contends that Ms. Hisko changed her mind again and told him on September 10 that she was ready to get back together.
[18] On September 13, 2018, Mr. Kirby arranged to meet Ms. Hisko at lunch. While the particular circumstances surrounding the meeting and the events that followed are disputed, what is not in dispute is the fact that the Mr. Kirby took Ms. Hisko to a secluded location where Ms. Hisko received a stab wound or wounds, after which Mr. Kirby called 911 to request an ambulance.
[19] Mr. Kirby also suffered some lacerations, particularly to his forearms and wrist.
[20] Police and paramedics attended the scene. After Ms. Hisko was transported to hospital but before Mr. Kirby departed the scene, he complained of chest pains. While being transported to the Heart Institute in Ottawa, Mr. Kirby suffered a heart attack in the ambulance and had to be revived with the use of a defibrillator.
[21] Ms. Hisko was interviewed by the police at the hospital on September 13 at around 5 p.m. after the completion of a C.T. scan. The interview lasted about a half hour.
[22] Mr. Kirby had a stent inserted on an urgent basis and his lacerations were treated at the Heart Institute.
[23] The next morning he gave a statement to the police from his hospital bed. At trial he said that he didn’t remember giving a statement to the police or what he told the police.
Evidence of Kevin James
[24] Kevin James is a long-time Sandvic Steel employee. He is currently working at Sandvic’s facility in Scranton, Pennsylvania, having transferred there when the Arnprior plant closed. He has known Ms. Hisko for over 40 years. He considers her a friend.
[25] He knew Mr. Kirby as Ms. Hisko’s partner.
[26] He recalls seeing Mr. Kirby frequently in the vicinity of the Sandvic plant in 2018. Sometimes Ms. Hisko was with Mr. Kirby but he also saw Mr. Kirby when Ms. Hisko wasn’t present.
[27] He recalls seeing Ms. Hisko at work in the morning on September 13, 2018 but she didn’t show up for a meeting that was scheduled for 1 p.m. He called her work station in the plant at 1:05 p.m. to remind her about the meeting but there was no answer.
Evidence of Frank Bennett
[28] Mr. Bennett is a retired former Sandvic employee. He worked there for 42 years. His last position was that of janitor.
[29] He has known Ms. Hisko since they were in secondary school together.
[30] Ms. Hisko’s work hours were from 7:15 a.m. to 3:10 p.m. She usually took her lunch break at 12 noon.
[31] On September 13, 2018 he noticed that Ms. Hisko’s car was not in the staff parking area at around noon. He noticed that her purse and cell phone were still at her desk. At 2:30 p.m. he noted that she hadn’t returned which he thought was unusual. He went looking for her because he knew where she usually parked off the Sandvic property on breaks. He found her car on Didack Dr. near the plant. The windows were down and the car was running.
[32] He returned to work and reported what he had seen to Jacqueline Cyr, the Human Resources manager at the plant. Ms. Cyr called the police and Mr. Bennett went back to Ms. Hisko’s car to wait for the police to arrive.
Evidence of Jacqueline Cyr
[33] Ms. Cyr was formerly the H.R. manager at the Sandvic plant in Arnprior. She knew Ms. Hisko in her capacity as an employee but they didn’t interact frequently.
[34] Ms. Cyr described Ms. Hisko as a diligent and punctual employee with a lot of seniority.
[35] She testified that she was in a meeting at around 2 p.m. when Mr. Bennett advised her that Ms. Hisko had not returned from lunch, that he had found her car nearby and it was still running but Ms. Hisko was not around. Ms. Cyr called the police.
[36] Ms. Cyr made some inquiries about the call log on Ms. Hisko’s phone. Ms. Cyr said that the call log disclosed that there had been 10 calls that day from a phone number that was listed in Ms. Hisko’s personnel file as an emergency contact number. Ms. Cyr said she thought that the phone number belonged to Mr. Kirby.
Evidence of the Complainant, Donna Hisko
[37] On September 13, 2018, Ms. Hisko was at work. Mr. Kirby called her to arrange to meet her at lunch to give her some personal belongings she had left at their home when she moved out. They arranged to meet on Didack Road, near the plant. She thought the meeting would only take a few minutes. She left her cell phone and purse at work. Mr. Kirby was waiting for her at the side of the road. She got out of her car, leaving it running with the windows down, and approached the driver’s side of the Mr. Kirby’s vehicle. Mr. Kirby pointed to her things on the floor on the passenger’s side, she walked around, opened the door and Mr. Kirby asked her to get in. Within a minute or two the Mr. Kirby started driving away. She told him that her car was still running. She quoted his response as, “Let the fucking thing run out of gas.” She denied that Mr. Kirby suggested that they should go somewhere private to talk although she agreed that that was something they had done in the past.
[38] Ms. Hisko tried to open the door of the vehicle while it was underway. She said it wouldn’t open. Mr. Kirby told her that if she tried that again, he would run her over.
[39] Ms. Hisko said that she was alarmed by the look on Mr. Kirby’s face. His eyes scared her. She had never seen this look before.
[40] She said she saw his phone and reached for it. Mr. Kirby reacted by punching her in the side of the face/head area. He held up the phone battery and said something like, “You’ll need this”.
[41] Ms. Hisko said that a little while later she reached over towards the driver’s side of the vehicle in an effort to grab the car keys. This unsuccessful effort was met with another blow to the side of the face.
[42] Ms. Hisko denied that Mr. Kirby talked about reconciling while in the vehicle. He didn’t tell her where they were going.
[43] When the vehicle came to a stop at the end of Gunsmith Road, Mr. Kirby told her to get out and he exited the vehicle as well. Gunsmith Road is a few hundred metres long and at the end there is a turnaround area. There are no houses or buildings nearby. The road ends in a secluded wooded area. He walked over to her side of the vehicle. He seemed angry and upset. When he got close to her he said, “Today is your day to die, you lying slut” and stabbed her in the abdomen. She didn’t see what he stabbed her with but she looked down and saw blood. She said, “Bill, what are you doing? You don’t want to do this. Just take me back to town and we’ll forget that this happened”. He responded by saying, “It’s too late”.
[44] There is a somewhat overgrown trail or track leading into the woods from the end of the road and Mr. Kirby told her to start walking into the woods along the trail. He was walking behind her.
[45] Ms. Hisko said she wanted to run away but she didn’t know where to go. She tripped and fell and Mr. Kirby kicked her in the right hip area, more than once, as she laid on the ground. She was on her back. She tried to kick back. She grabbed a nearby stick and struck at Mr. Kirby. She thinks she hit his arm. She thinks he kicked her in the hand. She started to feel weak and stopped hitting back. Mr. Kirby backed off and Ms. Hisko was able to stand up, dropping the stick as she did so. She tried to calm him down. She told him she loved him and suggested that they should go back to town. She didn’t know whether he still had the knife.
[46] He told her to start walking further into the woods. She remembers seeing a fallen log and thought about pushing him over the log and running away. Mr. Kirby was behind her. She felt pain on the left side of her neck. She took a few more steps but felt weak and lay down on the ground in a fetal position. She doesn’t know if she was bleeding or not. She didn’t want Mr. Kirby to abandon her in the woods because she didn’t want to die there alone. She asked him to call 911 several times. She didn’t know what was causing the pain in her neck. She asked him not to leave her and he said he wouldn’t. She said the demeanour of the Mr. Kirby changed after she laid down. She said she had no fight left in her. He held her hand. Her eyes were closed for much of the time. She doesn’t know how long she laid on the ground.
[47] She heard Mr. Kirby say, “Fuck, I can’t bleed”. She didn’t know if he had hurt himself. She saw the knife on the ground, grabbed it and threw it away.
[48] Ms. Hisko disagreed with the suggestion that she injured her neck or ear when she fell to the ground.
[49] She agreed that at some point while in the woods she picked up a log and held it behind her back to conceal it but she dropped it after about 30 seconds because she didn’t think she had strength to fight with Mr. Kirby. This was after she had been stabbed. She denied hitting Mr. Kirby with a log before he stabbed her.
Evidence of the Accused, William Kirby
[50] Mr. Kirby had a 30-year career with Bell Canada as a cable splicer, installer and repairman. He retired in 1997 but continued to work for different employers following retirement. He worked with Stantec Engineering in 2017 and 2018 conducting a pole survey and related work in conjunction with the installation of a fibre optics network. He set his own hours and schedule.
[51] His first house was located on Hwy. 508 between Burnstown and Calabogie then later he built a home at 3031 9th Concession in Pakenham. He lived there with Ms. Hisko for 15 or 16 years. This was the house he sold in 2018. It was near the location where he brought Ms. Hisko on September 13, 2018. It was also near where he had buried the family dog sometime previously and he said he would periodically go to the area to visit the dog’s grave. He had been there a month or so before the incident in question.
[52] He was an active member of the sports community in and around Arnprior, refereeing and coaching minor hockey and officiating for the fastball league. He was a member of the Civitan Club and other social organizations.
[53] He had a knee replacement in 2017 that resulted in a one night stay in the hospital. He was convinced that Ms. Hisko had a romantic relationship with a co-worker and that she had cheated on him the night he spent in the hospital because the mattress on their bed was in a different position when he got home from the hospital. He said that thereafter he called it the magical mattress. Sometime later he saw bruises on her navel and a hickey on her shoulder and above her vagina. Ms. Hisko consistently denied having been unfaithful but he was undeterred in his conviction as to what had happened. This is what led to the lie detector tests.
[54] He would visit Ms. Hisko at work 2 or 3 times a week when she was on her lunch or coffee breaks.
[55] Ms. Hisko had talked about taking an early retirement before but hadn’t followed through with it. This time he thought she was going to retire around the end of August, 2018 which is about the same time they separated. The uncertainty around whether they were going to buy a house together, Ms. Hisko’s uncertain retirement plans and then the separation resulted in emotional upset and depression. He wasn’t eating or sleeping well. Mr. Kirby saw his doctor for his difficulties and had follow-up appointment scheduled for later in September.
[56] Mr. Kirby and Ms. Hisko continued to meet and discuss their situation after separation. Typically he would pick her up at Sandvic and they would go to a park or ball field in or around Arnprior to talk.
[57] He testified that Ms. Hisko told him on September 7 that she was prepared to move back in with him then told him on September 8 that she had changed her mind. Even though she had been unfaithful and may have still had a relationship with someone else, he loved her and wanted to get back together. Ms. Hisko kept sending him mixed messages about getting back together and this was very upsetting and stressful. He just wanted to get an answer one way or the other. This was one of the reasons he suggested meeting with the Ms. Hisko on her lunch break on September 13.
[58] In the days before September 13, 2018 Mr. Kirby made audio entries on a handheld voice recorder. Exhibit 20b is a copy of the recordings taken from the voice recorder and Exhibit 20a is a transcript of the recordings. The entries are in the nature of an audio log or diary. There is an entry on September 12, 2018 at 3:16 pm where Mr. Kirby referred to a telephone discussion that day with Ms. Hisko. There is a recording of Mr. Kirby saying, “She ah said she wasn’t gonna meet me and (sic) that we’re through and that she doesn’t want to meet me or talk to me again so I guess we’re just gonna have to wing it from here…”. Based on this recording, it appears that on the day before the incident Mr. Kirby believed that their relationship was over and that she didn’t want to meet or talk with him again. This information is at odds with the testimony of Mr. Kirby when he said that one of the reasons he wanted to meet with Ms. Hisko on September 13 was to find out for once and for all whether Ms. Hisko wanted to resume their relationship.
[59] In the morning on September 13 Mr. Kirby said he was at Tim Horton’s picking up a coffee. After speaking with Ms. Hisko, he dropped his phone which caused it not to work. This had happened before and he found that by removing the battery and cleaning the battery terminals, he could get it to work. When he left Tim Hortons to meet Ms. Hisko, he had removed but hadn’t yet re-installed the battery.
[60] When he arrived at the spot where he had agreed to meet Ms. Hisko, she was already there and there was a black pick-up truck parked nearby. He parked in front of Ms. Hisko’s vehicle but wanted a more private location to talk. He asked Ms. Hisko to get in his vehicle so they could go somewhere quiet to talk.
[61] Ms. Hisko willingly got in his vehicle and they left for a place to park and talk. Mr. Kirby first thought that they would go to the Park N Ride adjacent to Hwy 17, one of their usual spots, but it was too busy so he took the ramp onto Hwy 17 and exited after travelling a short distance at the White Lake Road exit. His destination was Gunsmith Road near where they used to live although there was no particular reason he picked that spot except that it would be quiet and they would be able to talk. When they were on White Lake Road Ms. Hisko told him that her car was still running. For some reason the Ms. Hisko hit his right arm while they were driving on White Lake Road and he veered towards the ditch. He extended his arm about shoulder height to push her back and his arm deflected up against her face. Ms. Hisko seemed angry, but he didn’t know why.
[62] Moments later Ms. Hisko tried to open and, in contradiction of Ms. Hisko’s evidence, actually succeeded in opening the passenger door but he was able to reach over and close it. When he reached across in front of Ms. Hisko to close the door, she hit him on the back of his head and neck. He said she didn’t hit him very hard but when he raised his arm shoulder height to ward off her blows, he may have contacted her face or chin. He denied telling her that if she tried to open the door again, he would run her over. What he actually said was that if she jumped out of the moving car, he might run her over but he didn’t mean it in an intentional sense.
[63] In Mr. Kirby’s evidence in chief, he said that Ms. Hisko never asked to be taken back to her vehicle although she did ask to be let out of his vehicle two or three times. When he asked her if it was ok to find a quiet spot to talk, Ms. Hisko agreed although Mr. Kirby acknowledged that she appeared, in his words, ticked off. In cross-examination he agreed that Ms. Hisko may have said, ‘Take me back” or “Let me out”. He agreed that her actions were indicative of her not wanting to be in the vehicle with him. He didn’t believe her when she said her car was still running.
[64] When they parked at the end of Gunsmith Road, Ms. Hisko jumped out of the car and ran to the other side of the parking area. When the Mr. Kirby exited the vehicle, Ms. Hisko said, “I’m not screwing the guys you think I am”. He said, “That’s a foregone conclusion but we aren’t here to talk about that”.
[65] Ms. Hisko went to a spot where there were remnants of a small fire which he referred to as a firepit. She lifted her shirt and there were two circular marks on her stomach somewhere between 2 ½ to 4 inches in diameter with X’s in the centre. Ms. Hisko then picked up a stick, it sounded to me like it may have been a piece of firewood, and began to move quickly towards him with the stick in a raised position in her right hand. Mr. Kirby moved closer to the driver’s side door, opened it and retrieved a knife from the driver’s door compartment. The knife was part of a set of three throwing knives that he had purchased a week or two before for Ms. Hisko’s son, who was a collector of knives.
[66] By this time Ms. Hisko was already upon him and struck him with the piece of wood on his arm. He held the knife in front of him to show it to Ms. Hisko and said, “Now we are even”, meaning she had a piece of wood as a weapon and he had a knife. As she continued to strike him, he backed away with the knife in his hand. He pushed her away by pushing forward with both arms. As he did so, the knife nicked (his word) her stomach. She threw the wood away, raised her shirt and said, “Look, you cut me”. He asked her if she was ok and she said she was.
[67] In cross-examination he agreed that he doesn’t recall mentioning to the paramedics who later attended the scene that he had been struck in the head with a piece of wood nor did he mention this to the nurse who attended to him in the hospital after his surgery.
[68] He said that there was a drywall or Gyproc knife in his vehicle and if he had intended to kill Ms. Hisko, he would have used that tool because it was larger and deadlier. The police didn’t see this knife when they searched his vehicle. He said it was under a mat in the tire well. The police couldn’t say that they had checked that location.
[69] Mr. Kirby agreed that they entered the woods together. Initially they were walking side by side but then he let Ms. Hisko go first and he followed. As they walked, the Ms. Hisko fell into a gully off to the left side of the trail. She grabbed a stick and swung it at him. He stuck out his foot to block the blows and the stick broke.
[70] At some point after Ms. Hisko fell then had managed to stand up, she fell again and this time Mr. Kirby fell as well. That’s when he noticed the injury to her ear which bled heavily and Ms. Hisko asked him to take her to the hospital.
[71] The sequence of events involving the falls is not very clear. I am uncertain how much time passed between the falls in the version of events presented by Mr. Kirby. In his evidence in chief the Mr. Kirby said that after the first fall Ms. Hisko got to her feet and they hugged. Then they sat on a log and talked for about ½ an hour. Ms. Hisko did not seem weak. I understood the evidence of Mr. Kirby to be that this was when Ms. Hisko said she was thirsty and he retrieved a bottle of water from the vehicle. They walked around a little then sat on another log and smoked some cigarettes. This may have been when the second fall occurred. After getting on her feet after the second fall Ms. Hisko said she was feeling weak and Mr. Kirby helped her lie on the ground.
[72] He said he noticed some sharp stalks in the area where she had fallen and injured her ear and neck. He said it appeared to him like someone had recently harvested marijuana plants and left the stalks protruding from the ground.
[73] Mr. Kirby disagreed with a police sketch showing the location of where various items were found in the wooded area during the police investigation.
Position of the Parties
i) Position of the Crown
[74] The position of the Crown is that the necessary legal elements for the four offences with which the Mr. Kirby has been charged have been made out and he should be found guilty on all four counts of the Indictment.
ii) Position of the Defence
[75] Regarding the kidnapping allegation, Mr. Kirby contends that Ms. Hisko got in the car willingly. He had no idea that she didn’t want to accompany him for a talk about the status of their relationship. It was only when they got close to Gunsmith Road that Ms. Hisko indicated that she didn’t want to be in the car.
[76] As for the assault charge, he says he acted in self-defence in response to Ms. Hisko attacking him first. Also, the type of injury sustained by Ms. Hisko was not sufficiently serious to amount to aggravated assault as opposed to assault causing bodily harm.
[77] Regarding the threatening charge, Mr. Kirby denies having ever made a threat to harm Ms. Hisko.
[78] With respect to the attempted murder allegation, the defence says that the necessary intent to establish the offence of attempted murder hasn’t been proven. Even where the victim sustains a life-threatening injury, proof of the injury by itself is not necessarily evidence of an intent to kill. Also, there is no evidence of premeditation or planning. As for the weapon used, a much more lethal weapon was available in the vehicle if Mr. Kirby truly intended to kill Ms. Hisko. The only reason he grabbed the knife was to protect himself from the attack by Ms. Hisko.
Applicable Legal Principles
[79] Crown counsel has the burden of proving the guilt of Mr. Kirby beyond a reasonable doubt. This never changes. If I was to conclude that he was likely guilty, he would be entitled to be found not guilty because Crown counsel would have failed to prove his guilt beyond a reasonable doubt. Likely or probable guilt does not meet the required standard of proof.
[80] He also has the benefit of the presumption of innocence and this presumption remains with him throughout the trial unless and until Crown counsel proves his guilt beyond a reasonable doubt.
[81] Determining guilt or innocence involves more than a credibility contest. Guilt cannot be determined by choosing among competing versions of what happened. When Mr. Kirby presents evidence that contradicts the evidence tendered by Crown counsel, the Court must apply an analytical framework commonly referred to as the W.D. analysis. There are three elements to consider. The first element is obvious. If I believe Mr. Kirby, he is entitled to be found not guilty. Secondly, if I don’t believe him, disbelief alone is not sufficient to justify a finding of guilt. That’s because even if I don’t believe his testimony, I may still have a reasonable doubt as to his guilt, in which case again he is entitled to be found not guilty. Thirdly, even if I disbelieve the defence evidence and his testimony does not create a reasonable doubt, I must ask myself whether, on the basis of evidence that I do accept, am I convinced that the guilt of the Mr. Kirby has been proven beyond a reasonable doubt.
[82] The determination of whether Crown counsel has proved Mr. Kirby is guilty beyond a reasonable doubt requires that I make factual findings based on conflicting evidence. I have to determine what allegations I will accept and what allegations I am not prepared to accept. I may accept some, none or all of a witness’s testimony.
[83] Fact-finding in the face of contradictory evidence involves assessing both the reliability and credibility of each witness’s testimony.
[84] Generally speaking, the assessment of credibility includes considering whether a witness has a motive to mislead or a history of dishonesty, considering contradictory evidence in relation to known facts, determining the presence or absence of inconsistencies, assessing probabilities and determining the presence or absence of corroborating evidence. This is not a complete list of factors to be taken into account.
[85] Also, it is important to be even-handed when assessing the credibility of witnesses. It is an error to subject the evidence of some witnesses to greater scrutiny than other witnesses.
[86] Keeping the foregoing considerations in mind, I find that there are aspects of the evidence of Mr. Kirby that are improbable. Some examples:
a. While he is not sure how Ms. Hisko sustained the injuries to her ear and neck, he said he thought that the injuries occurred when Ms. Hisko fell in the woods and came in contact with a sharp object on the ground, maybe a pointed stick or a stalk of a plant. The injury to Ms. Hisko’s ear was referred to at times as a laceration. The wound appears to have been made by a sharp object, like a knife.
b. The injury to her neck appeared to be a puncture-like injury, very similar shape and size of the stab wound to Ms. Hisko’s abdomen that we know was caused by a knife. Also, the edges of the wound were smooth, not jagged or irregular.
c. After Ms. Hisko had sustained the injury to her abdomen, Mr. Kirby said he invited her to sit on a log and talk and have a smoke or two which they did; all very civilized and calm. Not only is this at odds with Ms. Hisko’s evidence, it seems unlikely to me that Ms. Hisko would have carried on like nothing had happened, as if she hadn’t just been stabbed in the abdomen after being driven out to a secluded wooded area against her will.
d. If, as Mr. Kirby testified, he just wanted to talk to Ms. Hisko to find out for once and for all whether they were going to get back together, bearing in mind that she was on her ½ hour lunch break, why did he pick a spot so far from her workplace? There was evidence that punctuality was important to Ms. Hisko. I find it much more likely, and more consistent with the other evidence, that Ms. Hisko drove to the secluded area at the end of Gunsmith Road because he intended to harm Ms. Hisko.
e. After Ms. Hisko tried to grab his cell phone, to grab the ignition keys and to jump out of the moving car, I find it highly unlikely that the Mr. Kirby could have possibly thought that Ms. Hisko was consenting to remaining in the car with him and was consenting to being driven out into the country, especially when she had to be back at work in a half hour and she testified that she had left her car running at the side of the road.
[87] I find the following circumstances to be suspicious and, when considered together, detract from Mr. Kirby’s credibility:
a. That he chose a secluded location like Gunsmith Road to have a discussion with Ms. Hisko;
b. That he had been to Gunsmith Road, clearly an out of the way location that was literally at the end of the road, earlier that summer;
c. That the battery was out of his cell phone; and,
d. That he happened to have a set of knives in the door compartment of his vehicle.
[88] As for inconsistencies, I found some aspects of Mr. Kirby’s evidence to be inconsistent with other evidence:
a. he said the cuts to his arms occurred as he tried to push Ms. Hisko away when she attacked him near the car, suggesting that they were accidental. This is different than what we hear on the recording when he says he won’t bleed and we hear a sound like he is in pain just before that statement. The recording suggested to me that Mr. Kirby was trying to harm himself. Also Mr. Kirby indicated to Cst. Golds that the lacerations or some of the lacerations were self-inflicted because he wanted to die.
b. Mr. Kirby denied that he would drive by the Sandvic plant to see who Ms. Hisko was with during her smoke breaks. He also said that he went to Sandvic only a couple of times with his helper, Jessie Shean. Mr. Shean said this occurred 2 or 3 times a week and that they would park near the back of the plant and record vehicle license plate numbers. Mr. Shean eventually quit because he often couldn’t get a full day’s work because of Mr. Kirby’s diversions.
c. At trial Mr. Kirby said that he knew his pocket recorder was on and recording while he was in the woods with Ms. Hisko but during his police interview he told Det/Cst Holmes that he didn’t think the recorder was on and if it was, it was accidental.
[89] During his cross-examination, I had the impression that Mr. Kirby tried to anticipate questions before they were asked. His responses were occasionally sarcastic. For example, when asked why he selected such a remote spot as Gunsmith Road, he said he wanted to go to a private area and commented that they could have gone to a washroom. He referred to the charges against him as the most ridiculous thing he’s ever heard. In response to a cross-examination question about his cell phone, he said words to the effect that, “You may not know this, but a phone won’t work without a battery”.
[90] Also during his cross-examination, Mr. Kirby sometimes changed his answer from what he had said a moment or two before. I had the impression if he sensed that an answer he had just given may not have been to his advantage as subsequent questions were asked to follow up on what he had just said, he changed his evidence.
[91] As for Ms. Hisko, I found that she testified in a direct and straight-forward manner, usually without hesitation. She was not evasive or defensive when questioned by defence counsel. Her testimony was generally consistent from examination in chief to cross-examination. On at least one occasion she readily admitted to a fact that she would likely have preferred to avoid- her admission to having sexual relations with Mr. Kirby when they spent the night together after she had moved to her mother’s home. She called it a mistake.
[92] Where there is a conflict between Ms. Hisko’s evidence and the evidence given by Mr. Kirby, I accept her testimony and reject his. Coming back to the W.D. formulation, I do not believe Mr. Kirby’s testimony when it is stacked against the evidence of Ms. Hisko, which I find to be reliable and credible. I have considered whether his evidence raises a reasonable doubt, even though I don’t believe him and I find that his version of events does not raise a reasonable doubt. I am convinced that Ms. Hisko was a truthful witness and that her evidence is sufficient to prove Mr. Kirby’s guilt beyond a reasonable doubt except in the specific instances to which I will refer.
Count 1- Kidnapping
[93] This count alleges that Mr. Kirby kidnapped Ms. Hisko with intent to cause her to be confined against her will. I find Mr. Kirby guilty of this count. Ms. Hisko said that when Mr. Kirby asked her to get in his car, she did so willingly but the situation changed when he started driving away within a minute or two. Later in her testimony she said she meant the reference to the phrase “a minute or two” as a figure of speech; that Mr. Kirby started driving not long after she got in the car. She said he just started driving away. I accept that he didn’t ask her if she wanted to go for a chat. I accept that she was not a willing passenger when Mr. Kirby drove away from their meeting spot. I find that she thought that their meeting would be brief. She expected that he was going to give her the spare set of ignition keys for her car that she had left at his house. She left her purse and her cell phone at work. She had a work meeting that was scheduled for 1 p.m. The evidence of Ms. Cyr was that Ms. Hisko was a diligent and punctual employee. It is improbable that she would have willingly agreed to accompany Mr. Kirby to a quiet spot to talk about their relationship when she had to be back at work for a 1 p.m. meeting. Also, she left her car running. This is consistent with someone who didn’t expect to leave that location.
[94] Before they had travelled very far she told him that her car was still running. She tried to get out of the car by opening the door while the vehicle was moving and he threatened to run her over.
[95] I find that Ms. Hisko clearly communicated to Mr. Kirby that she didn’t want to go with him and that she wanted him to let her out of the car. Mr. Kirby acknowledged that she had requested that she wanted out or wanted to go back to her car more than once when they were on White Lake Road. His suggestion that there was too much traffic to let her out of the car seemed contrived to me.
[96] I also accept her evidence that she tried to grab his phone to call for help and he struck her on the side of the head. When they were on White Lake Road she tried to take control of the ignition key and Mr. Kirby struck her again.
[97] Mr. Kirby used violence and intimidation to enforce her confinement within his vehicle. He was determined to take Ms. Hisko to a secluded location at the end of Gunsmith Road and he ignored her request to be let out of the car or to be taken back to her car.
Count 2- Threatening
[98] This count alleges that William Kirby did by word of mouth utter a threat to Donna Hisko to cause bodily harm or death to Donna Hisko. The offence of uttering a threat requires the Crown to prove two elements- the uttering of a threat to Ms. Hisko to cause death or bodily harm and an intention to threaten Ms. Hisko.
[99] Crown counsel refers to three different utterances that are alleged to constitute threats:
a. That he would run her over;
b. That it was her last day on Earth; and,
c. That today was her day to die.
[100] Ms. Hisko said the first threat was made in response to her attempt to open the vehicle door. The vehicle was moving. He said go ahead and I will run you over. She said she believed him. He had a look in his eyes that she hadn’t seen before and he scared her. She didn’t try to open the door again because she thought he would make good on the threat.
[101] In his version of events he said he was warning her of the risk of being run over if she fell out of the vehicle as a result of opening the door. It was a safety warning, not a threat. I do not accept this explanation of what he said.
[102] I find that he made the threat as alleged and that he intended to threaten her and as a result, I find Mr. Kirby guilty of making a threat to run Ms. Hisko over with his vehicle if she tried to get out of it.
[103] Regarding the alleged threat that this was Ms. Hisko’s last day on Earth, Ms. Hisko can’t recall when in the sequence of events he made this statement or the context in which it was made. The evidence surrounding this allegation is too uncertain to support a finding that this statement amounted to a threat.
[104] As for the threat that today was her day to die, Ms. Hisko testified that Mr. Kirby made this statement just before he stabbed her in the abdomen. The defence referred Ms. Hisko to her statement to the police when she said that Mr. Kirby said something like “I’m sorry I’m going to have to do this” before he stabbed her in the abdomen. As a result, I am unsure as to exactly what may have been said. In Mr. Kirby’s version, there was no intentional stabbing which I will refer to in more detail a little later on.
Count 3- Aggravated Assault
[105] This count alleges that Mr. Kirby did endanger the life or wound or disfigure Donna Hisko and thereby committed an aggravated assault.
[106] The offence of aggravated assault requires the Crown to prove each of the following elements beyond a reasonable doubt:
a. That Mr. Kirby intentionally applied force to Ms. Hisko,
b. That Ms. Hisko did not consent to the force that Mr. Kirby applied,
c. That Mr. Kirby knew that Ms. Hisko did not consent to the force that Mr. Kirby applied and,
d. That the force Mr. Kirby applied wounded, disfigured or endangered the life of Ms. Hisko.
[107] Ms. Hisko testified that when Mr. Kirby stopped the vehicle at the end of Gunsmith Road, he told her to get out and she complied with his request. He walked around to her side of the vehicle. He had a strange look in his eyes. He appeared angry and upset. He didn’t say anything as he walked towards her. He put one hand on her shoulder and said, “Today is your day to die, you lying slut” and stabbed her in the abdomen with a small throwing knife about 25 centimetres long with a blade that was about 10 centimetres long.
[108] I reject Mr. Kirby’s evidence that he was attacked by Ms. Hisko and that he was defending himself when the knife penetrated her abdomen. I accept Ms. Hisko’s evidence that she did nothing to provoke or threaten Mr. Kirby as he suggested. I find that he was the aggressor.
[109] A trauma doctor, David Carver, who was on call in the emergency department when Ms. Hisko arrived, said the abdominal wound penetrated the facia or muscle layer of the abdomen. He said that Ms. Hisko presented with a condition known as hemo-dynamic instability which is characterized by an elevated heart rate and/or low blood pressure. He said it is evidence of a serious injury. Dr. Carver was unable to say how far into Ms. Hisko’s abdomen the wound penetrated but it pierced the muscle layer that holds the body organs in place. Fortunately, her bowel or colon was not damaged. She received two units of blood and the wound was closed with steri-strips.
[110] Later, after Mr. Kirby directed Ms. Hisko to walk into the woods, she felt a pain in the left side of her neck. Mr. Kirby was standing behind her. She didn’t see what happened to her neck. I find that on the evidence that I accept, there is no other reasonable explanation for how Ms. Hisko sustained this injury but that Mr. Kirby stabbed her in the neck from behind with the same knife he used to stab her in the abdomen. The shape of the wound is quite similar to her abdominal injury and it has the same penetrating characteristics. I accept that she was in a standing position at the time and that it did not occur when Ms. Hisko fell on the ground as Mr. Kirby suggested. She felt weak after the injury to her neck and laid down on the ground.
[111] His version of how the injury occurred, by falling on a broken stalk or stick, seems highly improbable to me. I think it is likely that Ms. Hisko’s ear was cut at that time as well. Although it bled heavily, the laceration to her ear does not appear to have been a life-threatening injury.
[112] Dr. Carver said the injury to her neck was potentially life-threatening because it penetrated the muscle layer. Wounds of this nature could affect her airway, esophagus as well as veins and arteries. Again, fortunately none of these structures was damaged.
[113] The defence says that these injuries do not amount to the kind of injury that constitutes aggravated assault. I do not agree. I find that both the abdominal injury and the neck injury are wounds within the meaning of that term described by Bennett, J.A. in the case of R. v. Pootlass, [2019] B.C.J. No. 403, (C.A.). The knife penetrated both the skin and the underlying layer of muscle in both cases. There is clear evidence of bleeding on the clothes that Ms. Hisko was wearing and on the ground where she was laying and she was given 2 units of blood at the hospital. In my view, whether the wounds were closed with steri-strips or sutures is not a determinative distinction. I note as well that Ms. Hisko still reports that her neck aches and when she turns her head it feels like something pulls in her neck.
[114] I find Mr. Kirby guilty of aggravated assault as alleged in count #3.
Count #4- Attempted Murder
[115] The offence of attempted murder requires the Crown to prove each of the following elements beyond a reasonable doubt:
a. That the Mr. Kirby meant to kill Ms. Hisko; and,
b. That Mr. Kirby stabbed Ms. Hisko with a knife in either or both her abdomen and her neck in circumstances where he was not trying to defend himself and the injuries did not happen accidentally.
[116] The crime of attempted murder has to do with the state of mind of Mr. Kirby. It requires proof that Mr. Kirby specifically intended to kill Ms. Hisko. Nothing less will do.
[117] I find that I have a reasonable doubt as to Mr. Kirby’s intention to kill Ms. Hisko on the day in question. I accept that he was angry and upset and intended to harm her but I am not persuaded that he specifically intended to cause her death.
[118] I question why he would use the type of knife he stabbed her with if he wanted to cause death. It was a small knife, certainly capable of causing serious damage, even death, but why would he choose that as his weapon when more effective killing instruments would have been readily available. There is some evidence that he had such weapon with him in the form of the drywall knife that he said was in the back of his vehicle.
[119] Even if I was to conclude that Mr. Kirby probably intended to kill Ms. Hisko and then himself, as suggested by the Crown, as I explained before, he would be entitled to be found not guilty because his guilt had not been proven beyond a reasonable doubt.
[120] There is also the consideration that he called 911. Having put Ms. Hisko in the precarious position in which she found herself, he actually may have saved her life by calling for help. Maybe he changed his mind when Ms. Hisko laid down after she was stabbed in the neck. That’s when she said his demeanour changed. Having considered all the evidence, and bearing in mind that Mr. Kirby is entitled to the presumption of innocence, I find that he is not guilty of attempted murder.
[121] In conclusion then, I find that Mr. Kirby guilty on counts 1, 2, and 3 and not guilty on count 4.
Justice M. S. James
DATE RELEASED: March 25, 2021
COURT FILE NO.: 18-1466
DATE: March 25, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
WILLIAM KIRBY
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: March 25, 2021