COURT FILE NO.: CR-19-70000261-0000
DATE: 20210616
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Tyrelle Lee and Steven Macisaac
table of contents
Page No.
Overview of the Case. 2
Overview of the Proceedings. 2
The General Legal Framework. 3
i. Second Degree Murder............................................................................................... 3
ii. Party Liability............................................................................................................. 4
Mr. MacIsaac: The W.(D.) Analysis. 4
Do I Believe the Evidence of Mr. MacIsaac?. 5
Personal Background. 5
Prior to Attending the Park. 6
Clothing. 7
Arrival at the Park. 9
The Initial Confrontation. 11
The Stabbing. 14
a. The Evidence of Mr. MacIsaac......................................................................................... 14
b. The Eyewitness Evidence, Generally................................................................................ 15
i. K.D........................................................................................................................... 18
ii. Mr. Francis............................................................................................................... 19
iii. Mr. Whitaker............................................................................................................ 20
iv. Mr. Hume................................................................................................................. 22
v. Ms. Pugh................................................................................................................... 24
vi. Ms. Horler................................................................................................................. 24
vii. Mr. Kolev................................................................................................................. 26
viii. Mr. Larter................................................................................................................. 27
ix. Mr. Vesjiu................................................................................................................. 29
x. Mr. Paraskevopoulos................................................................................................ 31
xi. Mr. Bonisteel............................................................................................................ 32
xii. Mr. Isaac................................................................................................................... 33
xiii. Mr. Ball..................................................................................................................... 34
xiv. Video evidence......................................................................................................... 34
Conclusion Re: The Stabbing on the Hill 35
Post-Offence Conduct 37
i. Running from the Scene........................................................................................... 38
ii. Discussions of Injury................................................................................................ 39
iii. “Ditch It”.................................................................................................................. 39
iv. Disposing the Bench Bag and Orange Knife............................................................ 40
v. Disposal of the Gold Knife....................................................................................... 41
Analysis of the After the Fact Evidence. 42
Conclusion Re: Mr. MacIsaac’s Evidence. 42
Mr. Lee. 43
- Did Mr. Lee Cause Mr. Witt’s Death?.............................................................................. 43
a. The Gold Knife......................................................................................................... 44
b. Attendance at the Park.............................................................................................. 45
c. Pursuit to the Hill...................................................................................................... 45
Issues Re: Mr. Whitaker 50
Mr. MacIsaac. 52
d. Post Stabbing............................................................................................................ 52
Did Mr. Lee cause Mr. Witt’s Death Unlawfully?............................................................ 53
Did Mr. Lee have the State of Mind Required for Murder?.............................................. 54
Intoxication. 57
Conclusion Re: Mr. Lee. 59
Mr. MacIsaac: Guilty of Manslaughter as a Party. 59
The Law.. 59
i. Aiding....................................................................................................................... 59
ii. Abetting.................................................................................................................... 60
Analysis. 61
Conclusion. 64
APPENDIX “A”
APPENDIX “B”
COURT FILE NO.: CR-19-70000261-0000
DATE: 20210616
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
Tyrelle Lee and Steven Macisaac
Anna Tenhouse and Jay Spare, for the Crown
Tyrelle Lee, self-represented
Jennifer Penman and Renee Gregor, for the Respondent Steven MacIsaac
Scott Reid, Amicus Curiae
HEARD: January 11, 12, 13, 14, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29; February 3, 4, 5, 8, 9 ,10, 11, 12, 16, 17, 18, 19, 22, 23, 26; March 1, 2, 3; April 8 and May 26, 2021
KELLY J.
Reasons for judgment
[1] Mr. Tyrelle Lee and Mr. Steven MacIsaac are charged with one count of second degree murder in the death of Mr. Isaiah Witt.[^1] Pursuant to s. 473(1) of the Criminal Code and with the consent of the Attorney General, they proceeded to trial before me, sitting without a jury and on the Zoom platform.[^2] They appear before me now for the verdict.
Overview of the Case
[2] Mr. Witt and several others attended at Stan Wadlow Park (hereinafter referred to as the “park”) in the City of Toronto on October 7, 2017 for a “Jam”. A Jam is a party that is typically advertised on snapchat and is directed to those mainly in grades 9 and 10 or 14 and 15 years-old. Mr. Witt attended with some friends. Messrs. Lee and MacIsaac attended with K.D. (a Young Person) as well as Mr. Dwight Francis.
[3] Messrs. Lee, MacIsaac and Francis were advised that a group associated with Mr. Witt was “talking shit” about them. A verbal confrontation between the two groups quickly escalated to a physical one. Mr. Witt became involved. He was separated from the melee and chased to a hill. He was killed by one stab wound to his chest area. During the incident, Mr. MacIsaac was stabbed in the backside, bruised and scratched.
[4] After the stabbings, many people fled the park. Amongst them were Messrs. Lee and MacIsaac as well as Mr. Francis and K.D. Various items were discarded by them as they fled, including two knives and a side satchel. They were apprehended by members of the Toronto Police Service (“TPS”) a short distance from the park. Mr. MacIsaac was transported to the hospital for treatment. Messrs. Lee, Francis and K.D. were taken to the police station.
[5] At the police station, Mr. Francis was released. K.D. gave a statement to members of the TPS and he, too, was released. Messrs. Lee and MacIsaac were charged with second degree murder. Two months later, in December 2017, K.D. was also charged with second degree murder. He proceeded to trial in the Youth Court of Justice. On December 20, 2020, he was acquitted following a directed verdict application.
Overview of the Proceedings
[6] Mr. Lee was self-represented at trial. In March 2020, amicus curiae (hereinafter referred to as “Amicus”) was appointed by McMahon J. The terms of McMahon J.’s order were expanded by me in January 2021 to permit Amicus to cross-examine witnesses with respect to identity and the state of mind required for murder (i.e., the intoxication of Mr. Lee at the time of the incident). Mr. Lee was given the opportunity to cross-examine each witness both before and after Amicus. He declined to do so.
[7] Several eyewitnesses testified at trial. Some were friends of K.D. and were acquaintances of Messrs. Lee and MacIsaac. Others were friends of the deceased, Mr. Witt. Several police officers were called as well as a toxicologist. There were agreements of fact, videos, photographs and diagrams shown and filed as exhibits at trial. Mr. MacIsaac testified. Mr. Lee did not.
[8] After having considered the totality of the evidence, I find as follows:
i. Mr. Lee is the stabber who caused Mr. Witt’s death. I find him guilty of manslaughter.
ii. Mr. MacIsaac aided and abetted Mr. Lee in the stabbing of Mr. Witt. As such, he is also guilty of manslaughter.
[9] What follows are my reasons.
The General Legal Framework
[10] The indictment provides as follows:
Tyrelle Cosmus Lee and Steven MacIsaac stand charged that they, on or about the 7th day of October in the year 2017, at the City of Toronto, in the Toronto Region did, commit second degree murder on the person of Isaiah Witt, contrary to Section 235(1) of the Criminal Code.
[11] Crown counsel submits that Mr. Lee is guilty of second degree murder. Mr. Lee either meant to cause Mr. Witt’s death or he meant to cause him serious bodily harm that he knew was likely to cause his death and thus the culpable homicide was murder. They submit that Mr. MacIsaac is a party to the offence that Mr. Lee committed as a principal.[^3]
i. Second Degree Murder
[12] Section 235(1) of the Criminal Code provides that “Everyone who commits first degree murder, or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.” Section 222 of the Criminal Code deals with homicide. Section 222(1)(a) provides that, “A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.” Culpable homicide is murder or manslaughter or infanticide.
[13] Section 229(a) of the Criminal Code provides that culpable homicide is murder where the person who causes the death:
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not[.]
[14] Pursuant to s. 234 of the Criminal Code, culpable homicide that is not murder is manslaughter.
[15] To prove that Mr. Lee committed murder, Crown counsel must prove beyond a reasonable doubt that when Mr. Lee assaulted Mr. Witt, he either intended to kill him or he intended to cause him bodily harm that he knew was so dangerous and serious that it was likely to kill him and he proceeded despite his knowledge of that likelihood.
[16] A conviction for murder can arise from the infliction of a single stab wound if is proven beyond a reasonable doubt that there was an intent to cause death or bodily harm that one knows is likely to cause death and is reckless whether death ensues or not.[^4]
ii. Party Liability
[17] As stated above, Crown counsel submits that Mr. MacIsaac is a party to the offence. They rely on sections 21(1)(b) and (c) as the basis for Mr. MacIsaac’s liability. Those sections provide as follows:
(1) Every one is a party to an offence who …
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
[18] In considering the evidence and reaching my conclusion, I am mindful that although Messrs. Lee and MacIsaac have been charged and were tried together, each is a separate individual. Neither defendant can be found guilty of any offence unless the evidence that relates to him proves his guilt of that offence beyond a reasonable doubt. Each is entitled to have his case decided on the basis of his own conduct and state of mind and from the evidence that applies to him. Each is entitled to be considered separately and I have done so.
Mr. MacIsaac: The W.(D.) Analysis
[19] As I have stated above, Mr. MacIsaac testified. He denied any involvement in the stabbing or being aware that, at that time, Mr. Lee was armed with a knife and would use it. He denied participating in the assault of Mr. Witt in any way. Accordingly, when examining the evidence, I will consider the principles set out in R. v. W.(D.).[^5] I remind myself of those principles, which are as follows:
i. If I believe the evidence of the Mr. MacIsaac, I must acquit.
ii. If I do not believe the evidence of Mr. MacIsaac but it raises a reasonable doubt as to Mr. MacIsaac’s guilt, I must acquit.
iii. Even if I am not left in doubt by the evidence of Mr. MacIsaac, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of Mr. MacIsaac’s guilt.
[20] When considering the evidence of Mr. MacIsaac, I have done so in the context of the evidence as a whole. I have not isolated his evidence in a vacuum.
Do I Believe the Evidence of Mr. MacIsaac?
[21] Mr. MacIsaac testified that he attended at the park in the company of his friends, Messrs. Lee, Francis and K.D. Shortly after their arrival, there was an altercation that began in the playground.
[22] The confrontation began as a verbal one but quickly became physical. Shortly after it became physical, Mr. MacIsaac testified that he was stabbed in the buttocks. He retreated from the altercation to a space southeast of the playground, the opposite direction of the stabbing which occurred at a hill to the west. He says that he remained there until after the stabbing of Mr. Witt. If this evidence is believed, he was not part of the attack on Mr. Witt. As such, he did not commit any offence and he should be found not guilty.
[23] After having reviewed the evidence as a whole, I have concluded that I believe some, but not all of the evidence of Mr. MacIsaac. In essence, I do not believe everything that Mr. MacIsaac said in his evidence.
[24] I believe Mr. MacIsaac’s evidence about his relationship with Messrs. Lee and Francis as well as K.D. I also believe his evidence about what occurred before he went to the park and what occurred at the park before the stabbing of Mr. Witt. I also believe some of what he says happened after the stabbing, as he left the park in the company of Messrs. Lee, Francis and K.D. Although it is not necessary for his evidence to be confirmed or corroborated, much of Mr. MacIsaac’s evidence is supported by various witnesses as well as the videos and photographs admitted into evidence.
[25] When Mr. MacIsaac’s evidence with respect to what happened during the altercation with Mr. Witt is considered in light of all of the evidence, it must be rejected as untrue. I do not believe Mr. MacIsaac when he says that he was not at the hill when Mr. Witt was stabbed. Other reliable and credible witnesses provide compelling evidence that he was, in fact, at the hill. There were eyewitnesses who knew him and who recognized him. There were eyewitnesses who did not know him but provided reliable identification evidence of him. That evidence, together with the the video evidence puts a lie to Mr. MacIsaac’s claim that he was not even in the vicinity of the stabbing.
[26] Despite the rejection of Mr. MacIsaac’s evidence as to his involvement in the altercation at the hill, this does not mean that Crown counsel has proven an offence against him beyond a reasonable doubt. The burden is on Crown counsel to satisfy the Court that the guilt of Mr. MacIsaac is proven on the totality of the evidence. The rejection of Mr. MacIsaac’s evidence does not alter that burden. Rejection of his evidence is not proof of the opposite of what he testified to.
Personal Background
[27] Mr. MacIsaac was 23 years of age at the time of testifying. At the time of the incident, he was 19 years of age and living in Toronto. He was friends with Messrs. Lee and Francis, both of whom were between the ages of 18 and 20 at the time. He would “hang out” with them a couple of times a week in and around the time of the incident. He was not as close with K.D. but had met him previously through Mr. Lee.
Prior to Attending the Park
[28] I believe what Mr. MacIsaac says with respect to what occurred before attending at the park on October 7, 2017. This evidence may be summarized as follows:
i. Mr. MacIsaac testified that he was with Messrs. Lee and Francis in the Beaches area of Toronto during the afternoon of October 7, 2017. Eventually, they went to K.D.’s home.
K.D., Mr. Francis and Ms. Darcie Pugh (a friend of K.D.’s) provided a similar account. Mr. Francis testified that he was with Messrs. Lee and MacIsaac before attending at the home of K.D. They were in the Beaches and ate some pizza. Ms. Pugh was at K.D.’s home when Messrs. Lee, MacIsaac and Francis arrived. She observed them there. K.D. said the same.
ii. After leaving K.D.’s home in the company of Messrs. Lee, Francis, K.D. and a couple of K.D.’s friends (including Ms. Pugh), they went to the LCBO.
Mr. Francis, K.D. and Ms. Pugh were with Mr. MacIsaac at this time. This is confirmed by the video evidence of Mr. Francis inside the LCBO store purchasing alcohol shortly after 6:00 p.m.
iii. Mr. Francis purchased a bottle of Captain Morgan Rum[^6] and two four-packs of Molson Canadian Cold Shots[^7] (hereinafter referred to as “beer”).
Three full cans of beer were seized by police upon the arrest of Messrs. Lee, MacIsaac, Francis and K.D. They were found in a brown LCBO bag inside the knapsack belonging to K.D. The video shows Mr. Francis purchasing the rum.
iv. After the alcohol was purchased, Messrs. Lee, MacIsaac, Francis, K.D. and some of his friends all walked to the water filtration plant (the “waterworks”). At the waterworks, Messrs. Lee, MacIsaac, and Francis consumed some of the Captain Morgan rum. Each were taking shots from the bottle. He also believes that they consumed some of the beers while there.
Mr. Francis testified that a portion of the rum was consumed at the waterworks.
v. While they were at the waterworks, Mr. MacIsaac learned of the party at the park. It was a “high school” party and he agreed to attend in the company of Messrs. Lee and Francis. K.D. took the bus to Main Station. He and Messrs. Lee and Francis walked.
K.D. agreed that he invited Messrs. Lee, MacIsaac and Francis to the party before heading to Main Station. He took the bus there. He met up with Messrs. Lee, MacIsaac and Francis at Main Station. The video evidence from Main Station also confirms that Mr. MacIsaac was present there in the company of Messrs. Lee and Francis.
vi. At Main Station, Mr. MacIsaac saw K.D. with some of his friends. K.D. moved between the two groups: Messrs. Lee, MacIsaac and Francis and his group of friends who were in grades 9 and 10.
Several other witnesses provided a similar account.
vii. Mr. MacIsaac testified that he took the bus to the park in the company of Messrs. Lee and Francis. They sat at the back. Mr. MacIsaac observed that K.D.’s friends were also on the bus. K.D. walked back and forth between his group of friends on the bus and Messrs. Lee, MacIsaac and Francis who were at the back of the bus.
Again, several other witnesses provided a similar account.
Clothing
[29] Many of the witnesses testified during the trial about their observations of the clothing worn by Messrs. Lee, MacIsaac and Francis (or those involved in the altercation). Several witnesses who did not know Messrs. Lee and MacIsaac gave differing accounts of the particular items of clothing worn by the perpetrators of the crime. Some of the evidence was not consistent between the witnesses themselves, sometimes inconsistent with a prior statement and inconsistent with the clothing worn by Messrs. Lee and MacIsaac upon their arrest (shown on the footage from the in-car camera at the time of the arrest and the post arrest photos taken by the TPS.)
[30] Although the descriptions of the witnesses may impact the reliability of their evidence (discussed below), Mr. MacIsaac’s evidence put much of the conflicting evidence to rest. He confirmed the clothing he was wearing which was consistent with the evidence of some of the witnesses and some of the objective video/photographic evidence.
[31] Mr. MacIsaac, a white male, described the clothing he was wearing that night as follows:
i. A white t-shirt with “birds all over it”, black jeans, grey Jordan running shoes and a blue Toronto Maple Leafs hat. Underneath the white t-shirt, he wore a black singlet. Mr. MacIsaac agreed that the white t-shirt was “not tight” on him, was “fairly large or loose” and reached “just” past his waistline.
This evidence is supported by the video evidence taken at Main Station and video footage taken on arrival at the park. In a video seized from the phone of Mr. Lee, Mr. MacIsaac is seen holding a beer to the mouth of K.D. while K.D. shot guns a beer.[^8] He is wearing the white t-shirt with “birds all over it” and a Toronto Maple Leafs baseball cap. The t-shirt is fitted as described by Mr. MacIsaac: not tight, fairly large, loose and reaches to the area of his waistline.
ii. At some points Mr. MacIsaac testified that he was wearing a cross-body bag belonging to Mr. Lee. The body of the bag was grey in colour and said “Bench” in large black lettering. It had a zipper at the top for opening and closing and had a black strap that could cross the body (hereinafter referred to as the “Bench bag”). When wearing it, Mr. MacIsaac testified that the strap crossed his body from the left shoulder to his right hip.
The video footage taken inside the park when K.D. was shot gunning the beer supports this evidence.
iii. Mr. MacIsaac agreed that he had a “bit of a tan left over from the summer”. He also agreed that his hair was a certain length because it had not been cut in a couple of weeks. It had previously been cut short “all over”. The photo of Mr. MacIsaac taken on his arrest is consistent with this description.
iv. Mr. MacIsaac testified that at no time was he wearing either a hoodie or a bucket hat.
Although some of the witnesses testified that the white male (i.e., Mr. MacIsaac) was wearing a bucket hat, I accept that he was not. I also accept that Mr. MacIsaac was not wearing a hoodie at any relevant time. The video evidence confirms that Mr. MacIsaac was wearing a Toronto Maple Leafs baseball cap. No bucket hat was found by TPS during their investigation. He is not seen wearing a hoodie in the video taken when shot gunning the beer nor thereafter.
[32] Mr. MacIsaac testified about the clothing worn by Messrs. Lee (a black male) and Francis (also a black male) on the evening in question:
i. Mr. Lee: Mr. Lee was wearing a True Religion hoodie with white stitching. Mr. MacIsaac agreed that the stitching on the hoodie “really stands out”. Mr. Lee was also wearing khaki pants and wearing glasses. Mr. Lee had some facial hair. At the time of his arrest, Mr. Lee was wearing the Toronto Maple Leafs baseball cap previously worn by him.
Video footage from the TTC (Main Station) and the in-car camera of the TPS cruiser when Mr. Lee was stopped after the incident confirms Mr. MacIsaac’s description as do photographs taken by the TPS upon the arrest of Mr. Lee. The description of the hoodie was also confirmed by Mr. Francis and K.D. as well as several eyewitnesses.
ii. Mr. Francis: Mr. Francis was wearing a grey t-shirt with a pattern on the front of it: vertical lines that form a rectangle. He was wearing blue jeans. At the time he was stopped by TPS, he was wearing a satchel that crossed his body from the right shoulder to his left hip. Mr. Francis also had facial hair but had less than Mr. Lee.
The video footage from the in-car camera of the TPS cruiser when Mr. Francis was stopped after the incident confirms this as do the photographs taken by TPS.
[33] I believe Mr. MacIsaac’s evidence about what he, Messrs. Lee and Francis were wearing on the evening in question. It is consistent with the video and photographic evidence and the evidence of K.D. and Mr. Francis.
[34] There is conflicting evidence from various eyewitnesses about the clothing worn by the perpetrators involved in the stabbing. While I will review that evidence in greater detail below, I observe that certain aspects of the clothing worn by Messrs. Lee and MacIsaac are distinctive and observed by several of the witnesses. For example.
i. The t-shirt worn by Mr. MacIsaac (a white male) was distinctive. It was a white t-shirt with a pattern of birds all over it.
ii. Mr. MacIsaac was wearing the Bench bag across his body from the left shoulder to the right hip.
iii. The hoodie worn by Mr. Lee (a black male) was black (i.e., dark in colour) with distinctive white stitching. The contrast of the stitching to the hoodie “really stands out” as described by Mr. MacIsaac and is obvious in the video and photographic evidence.
Arrival at the Park
[35] I also believe Mr. MacIsaac’s evidence about what happened after he arrived at the park and before the conflict began:
i. Mr. MacIsaac testified that after he got off the bus, he was wearing the Bench bag. This is obvious from the video of Mr. MacIsaac shot gunning the beer.
ii. After they arrived at the park, Mr. MacIsaac testified that K.D. shot gunned a beer. He did not see how the hole was put in the can (i.e., he did not see Mr. Lee use a knife). The video evidence and the evidence of K.D. support this evidence.
A hole was punctured in the can but there is conflicting evidence as to how the hole was made. For example, K.D. testified that the can was punctured using a knife. K.D. recalled that the knife was gold. Mr. Whitaker described the knife that was going to be used if he shot gunned the beer was a metallic silver colour with a shine. Mr. Hume believed the can was punctured with a set of keys. I believe that Mr. MacIsaac is uncertain as to how the hole was put into the can. It is reasonable that he was not paying attention at the time the hole was punctured and as such, did not observe a knife.
iii. After shot gunning the beer, Mr. MacIsaac testified that they all walked to the playground area. I have attached a diagram of the playground area as Appendix “A”. However, I will provide a description of this area of the park as it is relevant to the observations made by several of the witnesses and discussed further below:
i. The bus stop is at the east end of the park. The playground area is closer to the west end of the park, adjacent to Cedarvale Avenue.
ii. There is a walkway that surrounds the playground.
iii. There are grassy areas just outside of the walkway surrounding the playground as well as trees, benches, a picnic table and light standards.
iv. There are two smaller paths (running north and south) that connect the playground walkway to a larger walkway that runs in an east/west direction, south of the playground.
v. Inside the playground are two large play structures with slides. One has a gazebo. There is a swing set on the east side of the playground.
vi. To the south of the swing set, closer to the east side of the playground, underneath a tree is a picnic table. (This is where the altercation began.)
vii. Immediately to the west of the playground is a hill that ascends to a community centre with a covered patio. The stabbing of Mr. Witt occurred at the hill. (The confrontation moved west from the picnic table to the hill.)
iv. Mr. MacIsaac testified that he stood together with Messrs. Lee and Francis closer to the east end of the playground. They were taking shots of the Captain Morgan rum as they passed the bottle to each other. Almost all of the rum was consumed before the altercation began.
Other witnesses (K.D., Mr. Hume and Mr. Whitaker) testified similarly. They all observed Messrs. Lee, MacIsaac and Francis taking shots of rum. This is also confirmed by Mr. Francis, who testified that they consumed rum when they got to the park. They passed it around to each other, taking shots of the rum when the bottle reached them. The small amount of rum left in the bottle is confirmed by a photograph of the rum bottle taken by TPS in the area south of the play structures. A small amount of brown liquid is observed in the bottle.
v. Mr. MacIsaac testified that he opened the Bench bag when he got to the park after the beer was shot gunned. He was looking for a cigarette. Inside the bag, he observed an orange knife in an orange plastic sheath. He did not handle the knife when he saw it. He assumed that it was one of the knives that belonged to Mr. Lee. He had seen it before at a friend’s house.
I accept Mr. MacIsaac’s evidence about observing the orange knife in the Bench bag before the altercation began.
vi. Mr. MacIsaac testified that shortly after his arrival at the park, he bumped into the sister of a friend, Destiny. Together they walked east, away from the playground. Destiny called her brother on her cellphone. Mr. MacIsaac talked to him for a couple of minutes. After he finished speaking on the phone, he began to walk west towards the playground.
I accept Mr. MacIsaac’s evidence on this topic as true. Various witnesses saw and recognized Destiny in the park on the night in question. I also accept that Mr. MacIsaac left the company of Messrs. Lee and Francis for a short period of time. When he walked back to them, they were involved in the confrontation that ended in the stabbing of Mr. Witt. His evidence is consistent with other witnesses.
The Initial Confrontation
[36] I also accept Mr. MacIsaac’s evidence about what transpired immediately before the confrontation began and how he became involved in it. To put the evidence into context, I will define the eyewitness associations:
i. The witnesses who had an acquaintance/association with Messrs. Lee and MacIsaac: K.D., Mr. Francis, Ms. Darcie Pugh (who also knew Mr. Witt), Ms. Zoe Horler, Mr. Whitaker and Mr. Hume.
ii. The witnesses who have an association with Mr. Witt: Mr. Valerie Kolev, Mr. Kaleb Larter, Mr. Brajan Vesjiu and Mr. Michael Paraskevopoulos.
iii. Independent witnesses who had no familiarity with either group included: Mr. Joseph Bonisteel, Mr. Dyzen Isaac and Mr. John Ball.
[37] The evidence about the initial confrontation may be summarized as follows:
i. After speaking with his friend on the phone and as he was walking back to the playground, Mr. MacIsaac testified that he was approached by K.D. who explained that he “overheard these guys saying that they were going to rob us and stuff like that”. Mr. MacIsaac described himself as surprised when he heard this from K.D. It caught him off guard.
Although K.D. was not able to recall the specifics of what he said to Mr. MacIsaac, I am satisfied that he said something to Mr. MacIsaac. This caused Mr. MacIsaac to join Messrs. Lee and Francis who were approaching the group associated with Mr. Witt.
ii. Mr. MacIsaac testified that he observed Messrs. Lee and Francis walking towards a group of people as K.D. was speaking to him. They were just to the west of the picnic table. By the time he reached them, Messrs. Lee and Francis were talking to the group associated with Mr. Witt. He estimates that there were five to seven people in the group at the time.
Mr. Francis agreed that Mr. MacIsaac joined them when they were “standing in the circle”, talking to the group associated with Mr. Witt.
iii. When Mr. MacIsaac approached, he says that Mr. Lee told him that “these kids” were going to rob them. Mr. Francis said nothing. Mr. MacIsaac described himself as confused when he stood next to Mr. Lee.
Mr. Francis testified that Mr. MacIsaac approached asking, “what’s going on”. He seemed confused and was “looking for clarification”. Messrs. Lee and Francis told Mr. MacIsaac, “These guys said they were going to rob us.” Mr. Francis agreed that Mr. MacIsaac was taken “off guard” and “[looked] a little bit scared”.
iv. Mr. MacIsaac testified that he heard Mr. Lee saying, “Are you guys talking shit? Did you say that you’re going to rob us?” Mr. MacIsaac described Mr. Lee’s tone as, “regular, but he’s naturally like a loud person”.
I believe that Mr. MacIsaac heard Mr. Lee saying, “are you talking shit?”. K.D. testified that he thinks that he told Mr. Lee, “those kids are talking shit”. Mr. Whitaker testified that he heard Mr. Lee shouting “are you talking shit” in an angry tone. Mr. Hume testified that he heard “who’s talking shit” when the group of Messrs. Lee, MacIsaac and Francis got to the group associated with Mr. Witt. Mr. Kolev testified that the male wearing the grey True Religion hoodie with white stitching (i.e., Mr. Lee) approached them and asked, “are you talking shit?” in an aggressive tone. Mr. Larter testified that he was standing next to Mr. Kolev when he was approached by three males, two of whom were black. Mr. Larter testified that he heard one of them say, “are you talking shit”. Mr. Vesjiu said that his attention was drawn to the confrontation when he heard, “are you talking shit?”. Mr. Paraskevopoulos testified that his attention was drawn to the commotion when he saw and heard a “black guy wearing the True Religion hoodie” saying, “I hear you are talking shit”. Mr. Bonisteel testified that he heard a reference to “talking shit” when a group of three approached another group before the stabbing occurred.
v. When confronted about “talking shit” by Mr. Lee, Mr. MacIsaac testified that he heard members of the group associated to Mr. Witt saying things like, “What the fuck are you talking about? We don’t know what you’re talking about.” They were not yelling but it was loud.
I also believe that words were spoken by the group associated with Mr. Witt when Mr. Lee inquired as to whether they were “talking shit”. While the words spoken may not conform to what Mr. MacIsaac recalls hearing, witnesses recalled hearing denials similar to those denials described by Mr. MacIsaac. For example, Mr. Vesjiu testified that he heard Mr. Witt saying, “I don’t know you guys, I don’t know who you guys are, what are you guys talking about?” as well as, “relax” and “chill”. Mr. Paraskevopoulos testified that he heard Mr. Witt respond, “no it was not me”. Mr. Hume testified that the group associated with Mr. Witt were “defensive”, denying that they were “talking shit” and moving away. He heard, “I’m not doing anything” amongst other things. Mr. Kolev agrees that after being confronted and asked if they were talking “shit”, some “chatter” occurred between the groups. Mr. Bonisteel heard, “no I wasn’t, I didn’t say anything”.
vi. When the confrontation started, Mr. MacIsaac testified that he had the plastic bottle of Captain Morgan rum in his hand. He hit somebody with it. The person he hit was white and was wearing a hoodie. After he hit the male with the rum bottle, he and that person began a fist fight. Punches were thrown and received.
I believe Mr. MacIsaac when he says that he hit somebody with the rum bottle. This assault is confirmed by many of those present although some of their evidence is conflicting. For example, Mr. Francis testified that Mr. MacIsaac hit a male with the rum bottle (although he believed the person was black. Mr. Larter is not black). Mr. Whitaker testified that he saw the “follow through” of a motion with the rum bottle being held by the neck. He believes that it hit either Mr. Larter or Mr. Witt. He believes that the male who did this was black (Mr. MacIsaac is not). Mr. Hume testified that he saw a bottle “swing over the crowd” and the crowd dispersed. He did not see who was holding the bottle when this occurred, nor does he know if the bottle made contact with anyone. Mr. Kolev testified that he observed a male come up behind Mr. Larter and hit him with a bottle, although he believes it was a Gatorade bottle (Mr. MacIsaac testified he used the rum bottle). Mr. Larter recalls getting hit on the back of the head with “something”.
vii. Mr. MacIsaac described that after the bottle was swung and hit the male, things got “heated” and then “kind of everything just blew up and people started fist-fighting”. He, Mr. Lee and Mr. Francis were fighting with a group of five to six other people.
All witnesses agree that the altercation escalated quickly after the initial verbal confrontation and the strike with the bottle. Mr. Francis testified that after the bottle incident, he saw a “throwing of fists” and various males were fighting. K.D. testified that after the verbal confrontation, a fight broke out akin to a melee. I accept Mr. MacIsaac’s description that everything “blew up” and did so quickly following the assault with the Captain Morgan rum bottle.
[38] As I have stated above, I believe Mr. MacIsaac’s evidence as to how the altercation began and how he became involved in it. However, I do not believe his evidence of what transpired after the physical confrontation began. When I consider his evidence in the context of other reliable and credible evidence, I cannot accept it nor does it leave me in a reasonable doubt as to his continued role in the altercation.
The Stabbing
a. The Evidence of Mr. MacIsaac
[39] Mr. MacIsaac testified that shortly after the confrontation began and when he was in the area of the picnic table, he “felt something like warm running down my leg and I – like I knew something was wrong and I backed away on an angle”.[^9] He testified that he moved to the “other” side of the large path in a south-easterly direction. He was on the south side of the walkway that encircled the playground and east of the picnic table. In other words, he moved in the opposite direction of the hill where the stabbing occurred and was a fair distance from the hill when he did so.
[40] Mr. MacIsaac testified that when he backed away from the confrontation, he realized that he had been stabbed. He reached into the Bench bag and pulled out the orange knife. He unsheathed the knife and looked around for less than five seconds. The reason? He was scared and, “just didn’t know what was going on”. He wanted to protect himself in case somebody tried to stab or kill him. He agreed that it is possible that the blade glinted in the light when he did so. When he realized that he was not in danger because “nobody was around” him, he put the knife back into the sheath and back into the Bench bag.
[41] Mr. MacIsaac testified that he observed the fight moving west towards the hill adjacent to the community centre. Mr. MacIsaac testified that he saw Mr. Lee with two other males in the area of the hill. He is not able to identify the two other males. Mr. MacIsaac denies that he heard Mr. Lee make any threats to stab or kill during the incident or at any time.
[42] Mr. MacIsaac testified that he saw Mr. Lee do what, “looked like a – a thrusting motion” to somebody who appeared to be “on their butt but like kind of sitting up”. Mr. Lee did the thrusting motion only once and was within arms’ length of the male on the ground when he did so. He did not see a knife in Mr. Lee’s hand then, or at any time. Mr. MacIsaac testified that at no time was he on the hill when the fight moved there.
[43] Mr. MacIsaac testified that he was able to observe what was happening at the hill. He was able to identify Mr. Lee and Mr. Francis (who was 10 to 15 feet behind Mr. Lee) and K.D. (who was 5 to 10 feet behind Mr. Francis), “cause I knew who they were so …” and “it wasn’t too dark to see all of that”.
[44] Mr. MacIsaac denied that he saw Mr. Lee in possession of the gold knife on the night in question. He denies that he saw it at Main Station when it was retrieved from Mr. Lee by K.D. and shown to Mr. Hume (discussed below). He denies seeing it appear when shot gunning the beer inside the park. That said, he knew of the gold knife belonging to Mr. Lee. He had heard about it and had seen it in the past at some point.
[45] If Mr. MacIsaac’s evidence is to be believed, he heard no threats to either stab or kill during the incident; he did not assist in preventing Mr. Witt from fleeing; he was not at the hill at the time of the stabbing; and he withdrew the orange knife at a location that would not likely have been observed by others who testified about the conflict at the hill. This evidence is contradicted by the evidence of those who had some familiarity with him at the time of the incident and those who did not. As such, I do not believe Mr. MacIsaac’s evidence about this portion of the incident.
b. The Eyewitness Evidence, Generally
[46] As I have stated above, I do not believe Mr. MacIsaac’s evidence, that he was not on the hill when the stabbing occurred. His evidence is inconsistent with the evidence of eyewitnesses and is also inconsistent with the video evidence.
[47] As I commence my analysis of the evidence regarding the stabbing itself, I remind myself of the frailties of eyewitness evidence, generally.[^10] Many of those frailties exist here and apply to most, if not all eyewitnesses. For example:
i. The eyewitnesses were making their observations on a Saturday night in October 2017 in and around 8:00 p.m. in the City of Toronto. Most, if not all, eyewitnesses described that it was dark. There was artificial lighting from the community centre and a number of light standards, some of which were not functioning according to witness testimony.
ii. Observations were made by various eyewitnesses from different vantage points. Some were closer to the location of the stabbing. Some were farther away with their views impeded by trees, playground structures, etc.
iii. The entire incident happened quickly – escalating from a verbal confrontation to a physical one between two groups who had little or no familiarity with each other. The entire incident occurred in a matter of seconds to likely under two minutes.
iv. During the short duration of the incident, there was a lot of commotion. There was little time for those present to focus and make their observations.
v. Things were chaotic. There was a lot of noise, causing distraction.
vi. The experience was traumatic for all who were present. Some eyewitnesses were watching their friends as the aggressors and others watched their friend pursued, stabbed and ultimately killed. To say that the observations were made under difficult and stressful circumstances would be an understatement.
vii. Some eyewitnesses had prior dealings with Messrs. Lee and MacIsaac. Others did not. As such, there is a need to be cautious regarding both recognition and stranger identification.[^11]
viii. The observations by eyewitnesses such as K.D. and Mr. Francis could have been tainted by their own interests. Both were detained shortly after the incident. K.D. was eventually tried for murder and there was a directed verdict of acquittal. Mr. Francis was (and is) a good friend of Mr. Lee. At the time of testifying, he was in custody in Saskatoon facing serious charges involving, amongst other things, a firearm and fentanyl. Although he appeared cooperative, it was clear that he did not wish to implicate Mr. Lee in the stabbing.
ix. Naturally, friends and associates of the deceased, Mr. Witt, were distressed by the stabbing of Mr. Witt. Several of them attended at the police station on the evening in question and thereafter at a service held in memory of Mr. Witt. Many attended the same school and socialized in the same groups. As expected, many talked about the incident after it occurred both in person and online. The recounting of their observations could have been tainted by others’ recollections of the events.
x. Many witnesses appeared agitated when replying to thorough and aggressive, but entirely proper, questions about possible collusion. I accept that the reliability of a witness’s account can be undermined by both deliberate collusion for the purpose of concocting evidence and/or being influenced by hearing the accounts of other witnesses that can affect their interpretation of what they saw and heard.[^12]
xi. Some of the eyewitnesses had increased certainty as to the identity of the perpetrators by the time of trial. Some witnesses gave statements at the scene that were contradicted at trial.
xii. Some, but very few, witnesses had been drinking alcohol at the time of the incident. The consumption of alcohol can impair the ability of a witness to make accurate observations, affecting the reliability of those observations and/or recollections. Although this is common sense, Dr. Joel Mayer, the toxicologist who testified, confirmed that that is the case.
xiii. Cross-racial identification is also an issue. Most of the eyewitnesses were white and identifying Messrs. Lee and Francis who were black.
xiv. I also bear in mind that most of the eyewitnesses were 14 or 15 years of age at the time of the incident. They were testifying about events that had occurred three years prior. Some had graduated from high school, others had not. Their frustration was evident when being cross-examined about prior inconsistent statements or on topics they thought irrelevant but were not (i.e., the type of hat a perpetrator was wearing or what was said during a 911 call immediately after the stabbing). Despite their age and maturity, I have assessed their evidence in accordance with the standards required in any criminal case.
[48] Despite the frailties of the evidence of the eyewitnesses, there were several features of the evidence that distinguish Messrs. Lee and MacIsaac and point to their participation in this offence. Firstly, there are witnesses who testified and knew (or knew of) Messrs. Lee and MacIsaac from prior meetings. They were able to identify Messrs. Lee and MacIsaac as present and participating in the confrontation that ended with the stabbing of Mr. Witt.
[49] In relying on the evidence of those who had an acquaintance with Mr. MacIsaac (i.e., the recognition evidence), I understand that recognition evidence is a form of identification evidence and is subject to similar cautions regarding identification evidence and the reliability of it. Despite their knowledge of Mr. MacIsaac, I am still required to consider the circumstances in which the identification was made to assess whether it is sufficiently reliable. That said, I am also cognizant that a witness may be so well acquainted with him or her to make the identification certain and safe.[^13] K.D. and Mr. Francis (in particular) fall into this category. As such, the level of familiarity between Mr. MacIsaac and K.D. and Mr. Francis may serve to enhance the reliability of their evidence.[^14]
[50] Witnesses who had no knowledge of Messrs. Lee and MacIsaac (i.e., Messrs. Larter, Kolev, Vesjiu, Parakevopoulos, Bonisteel and Ball) were able to give evidence regarding their observations of those who participated in the confrontation. Most identified:
i. a white male in a white t-shirt with a unique pattern; and
ii. a black male in a True Religion hoodie with distinctive white stitching.
[51] The unique t-shirt worn by Mr. MacIsaac and the unique hoodie worn by Mr. Lee give support to the conclusion that the eyewitnesses properly identified Messrs. Lee and MacIsaac as participating in the confrontation at the hill and the stabbing of Mr. Witt. The other common feature of their evidence is that three people were involved in the initial confrontation with the group associated with Mr. Witt and at least two thereafter in the pursuit and stabbing of Mr. Witt. Two of the three were black males (Messrs. Lee and Francis) and the third was a white male (Mr. MacIsaac).
[52] I believe that Mr. MacIsaac was involved in the initial confrontation, pursued Mr. Witt to the hill in the company of Mr. Lee and was at the hill when Mr. Witt was stabbed. He was in close proximity to Mr. Lee when the threats to stab Mr. Witt were made. I will start my analysis that supports this conclusion with the evidence of the witnesses who knew or had some familiarity with Messrs. Lee and MacIsaac.
i. K.D.
[53] K.D. is a friend of Mr. MacIsaac through his friendship with Mr. Lee. He testified that he observed the melee commence and was approximately 10 feet away when it did. He moved further away when the incident moved to the hill. At that point, he was approximately 50 feet away. Although Mr. Francis was involved initially, K.D. testified that Mr. Francis withdrew from the conflict and joined him. K.D. testified that Mr. Francis never re-entered the altercation.
[54] K.D. testified that he remembered watching the fight, “and sort of everyone kind of like stopped for a minute, but then they like they kept fighting and a kid got singled out”. The others backed off. He described that he saw, “one kid that was still in the physical altercation with my two older friends that were still fighting”. Those two older friends were Messrs. Lee and MacIsaac.
[55] When asked to describe the “kid”, K.D. said, “I just remember him wearing a duffel bag”. When asked to describe the duffel bag, K.D. said, “like when you get a gym bag to go to like the Good Life or something”. (Other witnesses testified that it was Mr. Witt who was singled out and that he was wearing a duffel/gym bag.)
[56] K.D. described, “what I witnessed was like, I’m not sure which one of the two, but they grabbed him by his duffel bag and sort of like swung him and he fell”. K.D. testified that he is not sure who it was, but he remembers “they grabbed the kid’s bag by the strap and sort of yanked him around to make him lose balance or something like that”. The “kid” (Mr. Witt) tripped and he was on the ground. K.D. could not “really decipher precisely” what was going on with respect to the duffel bag because of his eyesight, it was dark and there was a lot of commotion.
[57] While Mr. Witt was on the ground, K.D. testified that the kid was facing his friends (Messrs. Lee and MacIsaac). One of his friends was closer to Mr. Witt and the other was behind. They were standing “over top of the kid”. One of the two “picked up one of their arms and, like, threw a punch while the kid was still in the ground”. In cross-examination, K.D. testified that Mr. Lee “jumped” the kid.
[58] Immediately after K.D. observed the punch, Messrs. Lee and MacIsaac ran. He ran with them. He cannot recall who told him to run, it could even have been Mr. Francis.
[59] In considering K.D.’s evidence, I am aware of the frailties of it as follows:
i. K.D. testified that when the confrontation became more heated, he moved further away from it and may have been as far as 50 feet from it. He agreed that he has (and had) terrible eyesight that impaired his view of the incident on the hill. He is nearsighted (i.e., he sees things more clearly at a close distance rather than farther away) and is nearly blind in his left eye. He has different prescriptions for each eye, and he was not wearing any visual aids (i.e., glasses) at the time of the incident. K.D. had been drinking alcohol. K.D. also agrees that he assumed facts in order to make sense of the incident. The entire incident unfolded within a minute.
ii. K.D. gave a statement to police approximately 12 hours after the incident. His mother was present. He agreed that he was terrified when he gave his statement. He had learned that someone had died and that he might be charged with murder. He did not want to get into trouble. He agreed that he wanted to “do the right thing and not get anybody else into trouble that shouldn’t be”.
When the officer left the room and the video equipment was still operational, K.D. told his mother that “Steven [Mr. MacIsaac] did not do anything wrong”. He explained, in cross-examination, that that was the truth and that he was not trying to protect Mr. MacIsaac.
[60] Despite the problems with K.D.’s eyesight, his evidence regarding his observations is consistent with the other witnesses who placed Mr. MacIsaac on the hill, either because they knew him or, because they identified a white male in a white t-shirt. As such, I find K.D.’s evidence reliable about who he observed on the hill.
[61] Further, I accept that based on what he saw that night, K.D. believes that Mr. MacIsaac did not do anything wrong. I would not expect K.D., a 14 year-old, to understand that when Mr. MacIsaac pursued and prevented Mr. Witt from escaping the conflict, Mr. MacIsaac’s actions would be a significant contributing cause to Mr. Witt’s death and therefore make him potentially liable for the offence of manslaughter as a party. These are difficult concepts even for those legally trained. I would not expect K.D. to understand such legal concepts and therefore I accept that he believes that Mr. MacIsaac did not do anything wrong because he believed Mr. Lee was the stabber. In any event, his opinion concerning the legal consequences of Mr. MacIsaac’s actions as I found them to be is immaterial. It is K.D.’s evidence that is relevant. When I consider it with all of the other evidence about who was on the hill, I find that K.D.’s evidence is reliable. He places Mr. MacIsaac on the hill when Mr. Witt was stabbed.
ii. Mr. Francis
[62] While I am cautious about relying on Mr. Francis’ evidence because he does not describe his friend, Mr. Lee, as being on the hill at the time of the stabbing, I do accept his evidence that Mr. MacIsaac was there. His evidence about Mr. MacIsaac being at the hill is consistent with other evidence that I accept.
[63] Mr. Francis testified that he observed Mr. MacIsaac hit an “older black guy” with the bottle. Following this, the fight escalated. He believes that the “guy” who was hit in the head (i.e., with the bottle) “ran off or he fall” and Mr. MacIsaac “went after” him. They got “a little bit to the hill” (i.e., close to the hill but not actually on the hill that goes up to the community centre). He described this as a typical fistfight. He did not hear Mr. MacIsaac utter a threat or see him pull out a weapon at any point. Mr. Lee was in a confrontation with another person as this was happening.
[64] Once the fight became physical, Mr. Francis testified that he retreated from the confrontation and moved closer to K.D. (which was corroborated by K.D.) When asked what happened with Mr. MacIsaac and “the other guy by the hill”, Mr. Francis said he did not know because his back was turned. While his back was turned, he heard people yelling, “I got stabbed”. He believed that one of the voices was Mr. MacIsaac’s but thought he was joking. Mr. Francis said, “That’s when we went over to where he was”. Mr. Francis testified that he “pull him off the guy”. Mr. MacIsaac repeated that he had been stabbed and said that he could “feel it”. When they left, Mr. Francis could see that Mr. MacIsaac was bleeding. He and Mr. Lee tried to stop the bleeding using Mr. MacIsaac’s shirts that he removed as they were running.
[65] In considering Mr. Francis’ evidence, I am aware of the frailties of it as follows:
i. Once the fight became physical, Mr. Francis moved away from the altercation and was on the pathway next to K.D. As such, he was approximately 50 feet away from the incident on the hill, making his visibility more difficult.
ii. Mr. Francis testified that he and Mr. Lee were “best friends” at the time of the stabbing. It was clear that Mr. Francis did not wish to implicate Mr. Lee in the stabbing.
iii. Although Mr. Francis provided a statement to police and testified at the preliminary hearing, he never said that he intervened in the fight to pull Mr. MacIsaac off a male at the hill. It may be that he provided this testimony, at trial, in an effort to exonerate his friend, Mr. Lee (i.e., putting Mr. MacIsaac at the hill where the stabbing took place and not his friend, Mr. Lee).
[66] Despite being far away from the incident and next to K.D., Mr. Francis and K.D. place Mr. MacIsaac at the hill as do other witnesses. Further, although Mr. Francis did not wish to implicate Mr. Lee, he did not really implicate Mr. MacIsaac either. He denied seeing or hearing anything on the hill that would point to Mr. MacIsaac as the stabber. In fact, he described the opposite: to his knowledge, only Mr. MacIsaac was stabbed during the incident.
[67] Despite these frailties, I accept Mr. Francis’ evidence that Mr. MacIsaac was at the hill because many other witnesses place him there as well.
iii. Mr. Whitaker
[68] Mr. Whitaker is a friend of K.D. He testified that he saw K.D. with three friends at Main Station. One of those two was a white male and the other two were black. He knew one of the black males by the name “Tyrelle” (i.e., Mr. Lee). The white male looked slightly familiar to him. There had been some sort of introduction in the form of a head gesture, nodding, etc.
[69] Mr. Whitaker testified that after the initial confrontation, Messrs. Larter and Witt started to back up towards the hill that ascends from the playground to the community centre. Mr. Lee and the white male kept pace with them as they did. Mr. Lee and the white male were “almost running towards them”. In cross-examination, Mr. Whitaker agreed that Mr. Lee and the white male were “effectively chasing” both Messrs. Larter and Witt to the hill.
[70] When they got to the hill, Mr. Whitaker saw a knife in the hand of Mr. Lee. He agrees that he cannot say if it was the same knife that was brought out in anticipation of shot gunning the beer. He did not see where the knife came from. However, Mr. Whitaker testified that, “the way I saw his hand moving it seemed pretty – it seemed obvious that it came from his sweater pocket”.
[71] After he saw a knife in the hand of Mr. Lee, Mr. Whitaker testified that he saw Mr. Lee make a swinging motion with his fist at around chest level. Mr. Whitaker gave a demonstration of what he saw that was described by Crown counsel on the record: “your right arm is swinging in a – it’s a little bit of an arched position down by your waist”. Mr. Whitaker did not see Mr. Witt get stabbed[^35] but heard him say, “help, help, I’ve been poked” which is slang for being stabbed. Everybody dispersed thereafter.
[72] In considering Mr. Whitaker’s evidence, I am aware of the frailties of it as follows:
i. During Mr. Whitaker’s prior accounts of the incident, he only implicated Mr. Lee. He gave little information about anyone else. The conflicting evidence may be summarized as follows:
Statement to police: He told the police that he was not really “sure” if it was the white guy or the other black guy who was on the hill with Mr. Lee. He did not remember what the white male was wearing.
Preliminary hearing: That when Messrs. Larter and Witt started running to the hill, Mr. Lee pulled out the knife and said something along the lines of, “Do you think I’m playing” and started swinging the knife. Mr. Lee was walking at first and then started to run. While he was watching Mr. Lee “do these things”, he could not be sure of what the white male was doing because his attention was focused on Mr. Lee. When asked if he remembered anything about the white male, he said, “no, not really”.
K.D.’s trial: That when Messrs. Larter and Witt started to speed up, Mr. Lee started to match their pace.[^15] Mr. Whitaker testified that he “thought” that K.D.’s other friends were on the hill with Mr. Lee but he could not really be sure if it was one or both of them.
Examination-in-Chief at Trial: Mr. Whitaker testified that the white male was on the hill with Mr. Lee at the time of the stabbing.
Cross-Examination at Trial: Mr. Whitaker was not sure which of the two males was on the hill with Mr. Lee (i.e., the black male or the white male).
Re-Examination at trial: When asked if he knew which of K.D.’s friends was on the hill when Mr. Lee was swinging the knife, Mr. Whitaker responded, “I honestly don’t know.”
[73] I believe that Mr. Whitaker’s attention was on Mr. Lee during the incident because he saw Mr. Lee with the knife. That makes sense. However, he also places one of Mr. Lee’s friends on the hill at the time of the stabbing. I accept that Mr. Francis removed himself from the altercation when it escalated and that he was standing next to K.D. when Mr. Witt was stabbed. As such, the reasonable inference to draw is that the one friend at the hill as described by Mr. Whitaker was the white male, Mr. MacIsaac. This, again, is corroborated by the evidence of other witnesses.
iv. Mr. Hume
[74] Mr. Hume is a friend of K.D. and had met Mr. Lee in the past. It is not apparent that Mr. Hume had met Mr. MacIsaac prior to the night in question. When he was asked what he knew about Mr. MacIsaac, he said, “Not too much. I remember Relle [Mr. Lee] was talking about him, said he was his friend, not too much really.”
[75] Mr. Hume testified that he was standing with K.D. adjacent to the playground when K.D. advised his friends (i.e., Messrs. Lee, MacIsaac and Francis) that “they’re talking shit” (i.e., the group associated with Mr. Witt). He observed K.D. point to the group by the picnic table. Mr. Hume described that Messrs. Lee, MacIsaac and Francis got mad and were swearing when advised of this by K.D.
[76] As he watched Messrs. Lee, MacIsaac and Francis approach the group associated with Mr. Witt, Mr. Hume was on the path with K.D. He testified that he could clearly hear what was being said. He saw a bottle swing over the crowd following which the crowd dispersed.
[77] In addition to hearing the comments about “talking shit”, Mr. Hume testified that he heard Mr. Lee uttering the following threats:
i. Who’s talking shit? Are you dumb?
ii. I’ll kill you right now.
iii. Are you stupid?
iv. We’ll stab you here.
v. Give me the bag.
[78] Mr. Hume identified Mr. Lee’s voice uttering threats. He heard a second voice that he believed was that of Mr. MacIsaac because they were standing in close proximity to each other. That said, he was not familiar with Mr. MacIsaac’s voice and assumed that it was Mr. MacIsaac making the threats. When asked specifically about the threat, “We’ll kill you here” he added, “I am not too sure exactly”.
[79] Mr. Hume testified, “Eventually I see them pull out what I learned to be Isaiah Witt got singled out from the group, yeah.” Mr. Lee pulled Mr. Witt out of the crowd by his bag: a “side bag, a gym bag”. Mr. MacIsaac was to the side of Mr. Lee when this occurred, and Mr. Francis was behind. Mr. Hume heard someone say, “give me the bag”. He heard Mr. Witt reply, “I’m not doing anything, I’m not giving you the bag.”
[80] Mr. Hume testified that he observed the confrontation move from the playground area to the bottom of the hill. At first, Mr. Witt was facing Messrs. Lee and MacIsaac moving backwards. Mr. Witt then turned and ran towards the community centre.[^16] Messrs. Lee, MacIsaac and Francis started to chase him. Mr. Lee was running with a clenched fist, but he could not identify what was in Mr. Lee’s hand.
[81] Mr. Hume testified that he believed Mr. Witt fell twice. At one point when he fell, Messrs. Lee, MacIsaac and Francis caught up to him. He heard two voices uttering threats at the hill. One of those voices was that of Mr. Lee.
[82] Mr. Hume described the motion he saw Mr. Lee make at the hill as follows, “like kind of like you’re bowling, you swing your arm back and then forward”. His fist was clenched.[^17] He saw Mr. Lee’s arm “swing back” and then forward to Mr. Witt. Mr. Witt was “sitting to crouching” at the hill. After that motion, he heard Mr. Witt say, “I’ve been stabbed, call an ambulance”. Mr. Witt ran to the back of the community centre.
[83] Mr. Hume testified that Mr. MacIsaac was at the hill. He did not see anything in the hands of Mr. MacIsaac when Mr. Witt was on the hill. That said, he recalled that his hand was clenched. Mr. Hume did not observe Mr. MacIsaac make any kind of stabbing or thrusting motion at the hill.[^18]
[84] In considering Mr. Hume’s evidence, I am aware of the frailties of it as follows:
i. At trial, Mr. Hume described Mr. MacIsaac’s hair as follows: long, wavy hair (blonde or ginger). This is consistent with the description provided at the preliminary hearing where Mr. Hume described that Mr. MacIsaac had long, curly, ginger hair. The video and photographic evidence from the night in question shows that Mr. MacIsaac’s hair is not long and could not, possibly, have been put into any form of ponytail.
ii. While I am satisfied that Mr. Hume heard Mr. Lee make threats initially, he could not say what Mr. MacIsaac said during the confrontation. Further, by the time the altercation moved to the hill, he was not precise with respect to what was said or what he heard. Mr. Hume testified that, generally, he heard a “bunch of threats”. He described the threats as “something like” or “stuff like” when asked about the precise nature of them. When pressed further, he said that he was “not too sure exactly” what threats were made.
[85] Despite the discrepancies in Mr. Hume’s description, he maintained that Mr. MacIsaac (a white male) was on the hill during the altercation. This is consistent with the evidence of the other witnesses. Further, although he is not certain of the precise language of the threats, I am satisfied that he heard Mr. Lee making threats during the altercation that night. As such, I find his evidence reliable on both points.
v. Ms. Pugh
[86] Ms. Pugh does not mention seeing Mr. MacIsaac involved in the melee. She had been in his presence at K.D.’s house, the trip to the LCBO and the walk to the waterworks so that she had some familiarity with his appearance before the incident.
[87] Like Mr. Whitaker, Ms. Pugh’s attention appears to have been on Mr. Lee (a tall black male). She did observe a Captain Morgan rum bottle tossed to the ground but could not identify who did the tossing.
[88] At trial, Ms. Pugh testified that during the altercation, it looked as though someone was trying to run away but that someone else had a hold of them. That said, she could not identify who was trying to get away or the person who was doing the holding.
[89] Ms. Pugh testified that she saw a tall black male with a knife on the path behind the play structure. That male ran into the commotion at the community centre and when he did, he had the knife held out in front of him. She observed a thrusting motion but could not be certain that it was the male she had initially seen with the knife on the path. The hand holding the knife was moving back and forth from his stomach area forward. She believes that Mr. Witt fell either before or after he was stabbed. She heard screaming from the area of the hill.
[90] The male with the knife ran with K.D. after the incident. She believes the black male with the knife was Mr. Lee. After the incident, she told K.D.’s mother that she believed that Mr. Lee (“Relle”) had stabbed Mr. Witt.
[91] In considering Ms. Pugh’s evidence, I am aware that Ms. Pugh concedes that she did not see what happened clearly. She also agreed that when she spoke to police initially, she did not mention that someone was trying to get away while another person prevented them from doing so. As such, her evidence is inconsistent on this point although others observed something similar.
[92] What is clear is that Ms. Pugh does not place Mr. MacIsaac or a white male at the hill at the time of the stabbing. Her focus, was clearly, on the stabber. I have considered this exculpatory evidence in coming to my conclusion.
vi. Ms. Horler
[93] Ms. Horler testified that she had met both Messrs. Lee and MacIsaac through her friendship with K.D. (although she was inconsistent about the number of times she had met them).
[94] Ms. Horler points to Mr. MacIsaac as the sole aggressor and the person who caused Mr. Witt’s death. Ms. Horler testified that she saw Messrs. Lee, MacIsaac and Francis approach the picnic table where the group associated with Mr. Witt was located. She observed the confrontation begin and then saw Mr. Witt start backing up towards the hill. He was talking to Mr. MacIsaac as he was doing so. Mr. MacIsaac was walking towards him.
[95] Ms. Horler testified that she saw Mr. Witt start running towards the hill, but Mr. MacIsaac caught up with him. She thought she saw a knife because something in Mr. MacIsaac’s hand caught a reflection. There was a “collision where they connected”. At that point, Mr. MacIsaac turned around and started running.
[96] Ms. Horler testified that nobody else was “around” when Messrs. Witt and MacIsaac collided.[^19] Mr. Lee was between the hill and the picnic table when this occurred.
[97] There are issues about the credibility and reliability of Ms. Horler’s evidence. Although she places Mr. MacIsaac at the hill at the time of the incident (which I believe), her evidence is otherwise unreliable. I will provide a couple of examples as to why I have come to this conclusion, although there are others in the record:
i. Ms. Horler is adamant that it was only Mr. MacIsaac who was involved in the stabbing on the hill and that he was the sole aggressor. This is contradicted by most witnesses who either put Mr. Lee at the hill because they knew him or because they described his distinct clothing (a dark hoodie with white stitching).
ii. I find that Ms. Horler misled the TPS when she spoke to them initially. She told them that Messrs. Lee, MacIsaac and Francis were with a male she did not know (i.e., she did know the fourth person who was with them that night). That is a lie. She knew that K.D. (i.e., the fourth person) was with them but failed to advise the TPS when giving her statement. She also failed to correct this lie until preparing for the preliminary hearing.
iii. At trial, Ms. Horler did not recall what she saw in Mr. MacIsaac’s hand but assumed it was a knife. This is inconsistent with what she told the TPS. In her statement, she described seeing a “long thin knife”. At the preliminary hearing, Ms. Horler testified that she saw “something flash” and that it looked like a knife.
iv. Ms. Horler told the TPS that she heard someone yell “Steven” during the altercation. At trial she had no memory of this.
v. Most importantly, Ms. Horler testified, at trial, that when Mr. Witt was backing away, he was backing away from Mr. MacIsaac. When Mr. MacIsaac collided with Mr. Witt at the hill, Mr. Lee was not on the hill. She described that Messrs. Lee, Francis and K.D. were between the picnic table and the hill. Mr. Lee had not moved. She testified that there was no one else at the hill when the collision occurred, thereby leading to the conclusion that Mr. MacIsaac was the stabber. This is inconsistent with her statement to the TPS.
In her statement to the TPS, Ms. Horler said that Messrs. Lee and Francis were with Mr. MacIsaac when the stabbing occurred. However, they were behind him “a bit”. When this inconsistency was brought to the attention of Ms. Horler at trial, she testified that “they were behind him [Mr. MacIsaac] in between the picnic table and the incident”.
[98] Despite the frailties of Ms. Horler’s evidence, I accept her evidence that Mr. MacIsaac was at the hill at the time of the stabbing because it is corroborated by several other witnesses.
[99] This is a summary of the evidence of the witnesses who knew or had some familiarity with Mr. MacIsaac before the incident. They place him at the hill at the time of the stabbing. I will now turn to a consideration of those witnesses who had no familiarity with Messrs. Lee and MacIsaac before this incident but who knew Mr. Witt. They place a white male in a unique t-shirt at the hill.
vii. Mr. Kolev
[100] Mr. Kolev testified that a black male who approached he and his friends at the beginning of the altercation looked older. The black male was wearing glasses and had a small beard and short hair. He was wearing a grey True Religion hoodie with white stitching. His height was estimated to be 5’10” (the same height as the white male). He testified that the white male who approached also looked older. He was wearing a bucket hat and a white shirt with a red pattern.[^20]
[101] Mr. Kolev testified that after the initial confrontation, Mr. Witt joined them. The black male in the True Religion hoodie and the white guy in the bucket hat turned their attention to Mr. Witt. Shortly after they did, Mr. Witt started walking backwards slowly and then he started to speed up to the point that he was running. The male in the True Religion hoodie and the white guy were “chasing him” towards the garbage cans next to the hill. They caught up to Mr. Witt and grabbed him by the bag he was carrying. Mr. Kolev was unable to say which of the males grabbed Mr. Witt, although he testified that Mr. Witt could have tripped.
[102] On the hill, Mr. Kolev saw Mr. Witt on the ground. There were only two people at the hill with Mr. Witt at the time: the male in the True Religion hoodie and the white male. He observed that Mr. Witt tried to get up and then one of the two did “what appeared to be the motion of stabbing him”. Mr. Kolev described the stabbing motion as “90 degrees straight ahead” towards Mr. Witt. He believed the motion was made by a male wearing a hoodie but could not see what was in his hand. After that motion, one of the males yelled “run” and they did.
[103] In considering Mr. Kolev’s evidence, I am aware of the frailties of it as follows:
i. Mr. Kolev gave differing descriptions of the shirt worn by the white male in the bucket hat. When examined in-chief at trial, he described the shirt as having a black pattern on it. When being cross-examined, he testified that the pattern was red. That is what he told the TPS when he gave a statement shortly after the incident. That was also the evidence he gave at the preliminary hearing and at K.D.’s trial. The pattern on Mr. MacIsaac’s shirt was not red (it was black) nor was he wearing a bucket hat (it was a baseball cap).
ii. Mr. Kolev recalls that Mr. Larter was hit with a Gatorade bottle. It is possible that he was because there was a bottle similar in shape to a Gatorade bottle located by the TPS in the playground area during their investigation. However, other witnesses observed a Captain Morgan rum bottle being swung. Mr. MacIsaac agrees that he swung the Captain Morgan rum bottle and hit a male. Further, a Captain Morgan rum bottle was also located in the area of the playground during the TPS investigation. I accept that Mr. Larter was hit with a Captain Morgan rum bottle.
iii. Mr. Kolev was also inconsistent as to his location at the time of the incident. At trial he testified that he was standing at the red roof gazebo on the play structure (closer to the hill). However, he told the TPS that he was located at the teeter totter, slightly further away from the hill. If he was at the teeter totter as he initially described, the play structure with the gazebo would have been between him and the hill, possibly impairing his view of the hill.
iv. Mr. Kolev testified that he was at the police station with his friends after the stabbing. They talked about the incident then and the following day as well.
[104] While there are inconsistencies about the colour of the pattern on the shirt and the type of hat worn by the white male, the fact is Mr. MacIsaac was wearing a unique white shirt with a pattern and a hat. Mr. Kolev is simply mistaken about the type of bottle used to assault Mr. Larter, the colour of the pattern on the white shirt and the type of hat the white male was wearing.
[105] As I have stated previously, I am aware that the witnesses, including Mr. Kolev, were at the police station, a gathering a day later and attended social gatherings, school, etc. together. There is no doubt that they would have talked about what they observed and heard. That is to be expected. I have considered the impact of collusion. If they colluded, it did little to assist in the issue of identification. As I have stated above, Mr. Kolev did not accurately describe the colour of the pattern on the shirt (it was black, not red) nor the hat (it was not a bucket hat, it was a Toronto Maple Leafs baseball cap).
[106] Despite the frailties of Mr. Kolev’s evidence, I accept that Mr. MacIsaac was at the hill at the time of the stabbing.
viii. Mr. Larter
[107] Mr. Larter was a friend of Mr. Witt. He testified that he was approached by two males (one of whom was black). The black male was wearing a grey True Religion zip up hoodie with white stitching. The black male asked, “why are you talking shit?” repeatedly.
[108] During the verbal altercation, Mr. Larter heard something about stabbing. When his memory was refreshed from his preliminary hearing transcript, Mr. Larter recalled hearing, “I’m going to fucking stab you”. (During his statement to police, he said he heard, “I’m going to fucking stab you” or “don’t make me stab you”). He is not sure who said it.
[109] Mr. Larter testified about being hit on the head. Thereafter the altercation escalated. Mr. Larter testified that shortly after Mr. Witt intervened in the confrontation. He believed that Mr. Witt was coming to their defence. Thereafter, the three males (two of them were black, he does not remember the skin colour of the third) turned their attention to him. Mr. Witt started backing up as they approached him.
[110] The males chased Mr. Witt, “on top of like the mini hill toward going to the clubhouse” at the west end of the park. He described that Mr. Witt tripped on his gym bag. He did not see “exactly the way he tripped” or “what caused it”.
[111] It looked like the three males got pretty close to Mr. Witt on the hill (recall that Mr. MacIsaac testified that Mr. Francis was 10 to 15 feet behind Mr. Lee at the hill). The three were below Mr. Witt but within arm’s length of him. They surrounded him. Mr. Larter did not see any weapons but then heard Mr. Witt screaming in pain and saying, “they stabbed me”. The three males then ran off. Although Mr. Larter does not describe the white male at the hill, three males were involved in the initial confrontation and at the hill.
[112] In considering Mr. Larter’s evidence, I am aware of the frailties of it as follows:
i. Mr. Larter gave inconsistent statements about what he heard at the commencement of the confrontation. At trial, he testified that he heard the words, “talking shit” as the black male approached. When speaking to the 911 operator, he told the operator that the group approached saying, “what’s the problem buddy”. Nobody else in the area of the confrontation heard “what’s the problem buddy”. He ultimately agreed that he did not recall exactly what was said.
ii. Mr. Larter also told the 911 operator that he did not really see what happened and that that was the truth. At trial, he testified that he saw three males pursue Mr. Witt to the hill.
iii. Mr. Larter also gave inconsistent evidence about the words he heard during the altercation. During examination-in-chief at trial, he testified that he heard, “I’m going to fucking stab you.” In his statement to police, he said that he heard one male say, “I’m going to fucking stab you right now” or “don’t make me stab you”. At the time, he was unsure which statement was made.
iv. Mr. Larter testified that he was hit on the head only once. His friends told him, after the incident, that he was hit twice. (i.e., Mr. Kolev testified that the male who hit him with the bottle also elbowed or punched him.) He testified that when they were at the police station after the stabbing, they talked about the incident. As such, he had spoken with others about his evidence before testifying.
[113] As stated above, I accept that the witnesses had spoken to each other before testifying. However, if they colluded to fabricate evidence they did not do so effectively. For example, they described the white male as wearing a bucket hat (incorrect) and the hoodie with white stitching as grey (it was black). Further, despite the inconsistencies about what was said to the 911 operator and at trial, I accept Mr. Larter’s explanation that he was probably confused when speaking to the 911 operator. He had just been confronted by a group of unknown males and within seconds, his friend (Mr. Witt) had been stabbed.
[114] Mr. Larter’s evidence does not, specifically, place Mr. MacIsaac (a white male) at the hill at the time of the stabbing. However, he places three males in pursuit of Mr. Witt, one of whom could have been Mr. MacIsaac (a white male) as described by others.
ix. Mr. Vesjiu
[115] Mr. Vesjiu was also a friend of Mr. Witt. He testified that he heard threats when his back was turned. One person said, “why are you talking shit”, “I’ll stab you up right now” or “I’ll stab you right now” or “something along those words”. He also heard the black male in the True Religion sweater and the white male in the white beige shirt with the hatches (and wearing a bucket hat) say, “we don’t give a fuck, we don’t care”. He looked over and “saw two guys pressed up on like my friend Isaiah, like right in front of him, but didn’t realize it was Isaiah at first”.
[116] Mr. Vesjiu testified that after the altercation began he observed the “Latino” guy (who he described as wearing a white or beige shirt with a “cross lines like cross hatches – red cross hatches”) reach into his side bag and unsheathe a red knife. When the knife came out of the sheath, he saw the blade flash. It looked long. Although he does not recall the colour of the knife, it looked red. It was not a folding, switchblade, flick or butterfly knife. It was “kind of like a hunting knife”.
[117] When the knife was unsheathed, Mr. Witt started “backtracking” (taking small steps backwards). Then Mr. Witt turned. He ran towards the hill adjacent to the community centre. Two males, including the white male, chased Mr. Witt. Mr. Vesjiu heard the taller of the males saying something along the lines of “I’ll stab you up right now” or “I’ll stab you right now”. When his memory was refreshed, he testified that he heard, “we’ll stab you”. He is unsure as to who made the stabbing comment.
[118] Mr. Vesjiu testified that he observed Mr. Witt’s gym bag swing around and that this motion contributed to his fall. The black male did like a “football tackle” and then the white male made a stabbing motion (an underhand thrust). It happened really fast. He had seen the knife pulled out by the white male earlier that night, but he does not know if Mr. Witt was stabbed because he did not see the knife make contact. Thereafter he heard Mr. Witt say, “help, I got stabbed”.
[119] In considering Mr. Vesjiu’s evidence, I am aware of the frailties of it as follows:
i. Mr. Vesjiu gave inconsistent evidence about the type of hat worn by the “Spanish/white Latino” male he saw in the park that night. At trial, he described that the male as wearing a “bucket hat”. However, he told the officer at the scene that the male was wearing a “flat brimmed baseball cap”. When that inconsistent statement was brought to the attention of Mr. Vesjiu, he denied that he ever told the officer that the Spanish/white Latino male was wearing a flat cap. He was argumentative with counsel when being cross-examined on this observation: he insisted that the white male was wearing the bucket hat, he never said he was wearing a baseball or flat brimmed cap. Of course, we know that Mr. MacIsaac was wearing a baseball cap with a flat brim at the park that night as it is seen on the videos. As such, Mr. Vesjiu’s initial description was correct despite his protestations.
ii. There were also inconsistent statements given by Mr. Vesjiu about the type of shirt worn by the white male. At the preliminary hearing and at trial, he testified that the Spanish looking male was wearing a “white or beige shirt with red cross-hatches”. On the night in question, he told the TPS that the Spanish looking male was wearing a “red shirt”. In his statement to police, made on October 9, 2017, he told them that the male was wearing a shirt with a pattern, but he did not describe the pattern as “cross hatches”. In fact, it is a white t-shirt with black birds on it.
iii. Mr. Vesjiu also gave varying descriptions of the knife he observed. At trial, and after having his memory refreshed, he described it as red but that he was not certain of the colour. That said, he conceded that he was never certain of the colour. In his statement to police, he described the knife as red with a black or brown handle. At the preliminary hearing, he testified that he never saw the handle of the knife but that the blade was black, red or brown, depending on the lighting. The sheath of the knife was a light beige or brown fabric. In fact, the knife and the sheath are both orange in colour.
iv. At trial, Mr. Vesjiu testified that he did not see a knife put to Mr. Witt’s neck. This evidence is contradicted by his statement to the TPS. At that time, he told the TPS that the knife was held to Mr. Witt’s neck.
v. Mr. Vesjiu also described the shoes worn by the Spanish looking male as white Jordans. Mr. MacIsaac was wearing grey Jordans. He described the cross-body bag as a Louis Vuitton bag. It was not, it was a Bench bag.
vi. Lastly, Mr. Vesjiu testified that he and most of his friends from the park were at the police station after the stabbing. While there, they talked about what had happened and what they saw. He (and many others) talked about what they observed but also what they had heard from others.
[120] I accept that there are inconsistent statements that affect the reliability of Mr. Vesjiu’s evidence. If he were the only witness upon which I had to rely to come to my conclusion, I may not be persuaded that Mr. MacIsaac had been properly identified at the hill at the time of the stabbing. However, his evidence is not to be considered in a vacuum.
[121] Mr. Vesjiu describes the involvement of a white male in a t-shirt and gives a detailed description of a knife being removed from a sheath during the incident. The knife being removed from the Bench bag and from a sheath is corroborated by Mr. MacIsaac who agrees that he did this, although in a different location.
[122] Further, although the knife seized on Holborne Avenue is orange, it is in a sheath. Although the colour is not red, it is unique. It is clear that he got the colour of Mr. MacIsaac’s Jordans wrong and misidentified the brand of the cross body bag. That said, Mr. MacIsaac was wearing Jordans and was wearing a cross-body bag, so Mr. Vesjiu was right about those two details.
[123] Despite the frailties of Mr. Vesjiu’s evidence, I accept his evidence that Mr. MacIsaac was at the hill at the time of the stabbing as it is consistent with the evidence of other eyewitnesses.
x. Mr. Paraskevopoulos
[124] Mr. Paraskevopoulos testified that he heard yelling and saw three males who appeared older approach another group. One of the males was “white skinned” and the other two were “black skinned”. The white male had long, curly black hair and a “side bag” similar to a “man purse”. He was wearing Nike shoes and a bucket hat. They were approaching Mr. Witt.
[125] Mr. Witt backed up into a hill. Mr. Witt had a gym bag draped around his shoulder and it appeared that the three males pursuing him were “pulling on the end”, “grabbing onto it”. He could not say “who” exactly was doing what and “when” but “it looked like the black guy was a little closer to him”. It looked like they “pushed” Mr. Witt to the ground.
[126] When Mr. Witt was on the ground, facing up, the white guy and the black guy with the True Religion hoodie were “equally close” to Witt. The other black male was a little separated from them. Mr. Paraskevopoulos did not see anything in the hands of the two men who were closest to Mr. Witt, but he saw their arms drawn back with their elbows parallel to their shoulders. Their hands were in the area of their waist, beside their hips. He believed that they were stabbing Mr. Witt.
[127] In considering Mr. Pareskevopoulos’ evidence, I am aware of the frailties of it as follows:
i. At the park immediately following the stabbing, Mr. Paraskevopoulos advised that he could not give a description of the perpetrators because it was dark. Yet, he was able to provide such a description when he testified at trial: three males were involved, one of whom was a white male who had a “side bag” similar to a purse, etc.
ii. Mr. Paraskevopoulos agrees that he and his friends talked about the stabbing at the police station after it occurred and when they gathered the following day. In essence, the witnesses “compared notes” about what they had seen and heard, leading some credence to the suggestion of collusion.
iii. Although Mr. Paraskevopoulos was correct about the type of shoes worn by the white male (Mr. MacIsaac), he was wrong about the colour. In his statement he described the shoes as grey. At the preliminary hearing, he described them as white and red. At trial, he described them as white and not black. (They were grey.)
iv. Mr. Paraskevopoulos described the white male as having “long curly black hair” which it is not.
v. Mr. Paraskevopoulos testified that the white male was wearing a bucket hat (similar to the evidence of Messrs. Vesjiu and Kolev) but he was not.
[128] While I find that the evidence of Mr. Paraskevopoulos is inconsistent, I rely upon the evidence that places Mr. MacIsaac at the hill at the time of the stabbing. As I have stated many times, the evidence of a white male participating in the confrontation at the hill is consistent with the evidence of the other witnesses.
[129] This is a summary of the evidence of the witnesses associated with Mr. Witt. I accept that they talked about the incident at the police station and thereafter. If they were colluding, as suggested by counsel, their evidence remained inconsistent at trial. For example, some witnesses describe the white male as wearing a bucket hat, the description of the white t-shirt varies and the sweatshirt worn by the black male is described as being dark in colour but varies in colour from navy, grey or black. Some see the black male wearing glasses while others do not.
[130] What remains consistent is that most, if not all witnesses, place a white male and a black male at the hill during the stabbing. Some identify the unique t-shirt worn by Mr. MacIsaac and the unique True Religion hoodie worn by Mr. Lee. One witness, Mr. Vesjiu, gives a description of the white male removing a knife from his side bag and removing it from the sheath – an action that Mr. MacIsaac agrees he did, just in another location.
[131] I will now address the evidence of the witnesses who had no familiarity with Messrs. Lee and MacIsaac or Mr. Witt. Some of their evidence is consistent with the description of a white male on the hill.
xi. Mr. Bonisteel
[132] Mr. Bonisteel saw a group of three approach a group of five. He did not see how the commotion started but testified that the confrontation seemed to have been started by one in the group of three. He believed the confrontation was closer to the hill.
[133] One person in the group of three said, “I heard you talking shit, I heard you talking shit”. When asked to describe the group of three, Mr. Bonisteel testified that it looked like they were wearing dark hoodies, were taller than 5’8” and skinny with some muscle. When asked about their skin colour, Mr. Bonisteel said in his statement, “I’d probably say white, … they looked white but I have no idea”. At trial, he confirmed that he was telling the truth during his statement with an “emphasis on the ‘I have no idea’ part”.
[134] Mr. Bonisteel testified that he observed three people on the hill standing beside each other. One of the males made a jabbing motion with his right arm from his waist area (a bent elbow in a ‘v’ shape that went out straight and forward). He had a closed fist when he did so. The victim was face to face with this person when it occurred. He did not see a knife but assumed that the victim had been stabbed in the stomach area. After he observed this action, he heard the victim screaming that he had been poked.
[135] In considering Mr. Bonisteel’s evidence, I am aware of the frailties of it as follows:
i. Mr. Bonisteel’s evidence, of course, is contradicted by most of the other witnesses because he places eight people on the hill.
ii. Mr. Bonisteel described that the group of three as wearing “dark” hoodies but that is not the case. Mr. MacIsaac was in a white t-shirt, Mr. Francis in a grey t-shirt. Only Mr. Lee was in a hoodie that had distinctive stitching.
[136] This evidence, is of course, exculpatory and I have considered it in reaching my conclusion about Mr. MacIsaac’s presence at the hill during the stabbing.
xii. Mr. Isaac
[137] Mr. Isaac’s attention was drawn to the confrontation when he heard yelling. He heard variations of “talking trash”, “you’re gonna get poked” and or “if you’re talking trash, you’re going to get stabbed”. Mr. Isaac believed the person uttering these statements was “white, more tanned, olive or medium skin colour”. The male was wearing a white sweater and was bigger in size.
[138] Mr. Isaac has a recollection of observing three people in hoodies during the altercation. Two of the hoodies were black in colour, the other was white. All hoods were up and all three were in a “clump” of multiple people. Things quickly became chaotic. He observed the three in hoodies depart the playground area through the field. The male in the white hoodie was in the lead. A bottle dropped from one of them as they were running.
[139] There are frailties in the evidence of Mr. Isaac. I rely on his evidence for very little. There are a number of problems including the following:
i. Mr. Isaac was a difficult witness at trial. It was clear that he did not wish to testify. Most of the evidence obtained by Crown counsel was done so pursuant to a successful s. 9(2) application.[^21] Most of the time, Mr. Isaac was rude and showed little regard for the seriousness of the proceedings. He had to be reminded that one person was dead and two others were being tried for murder as a result of what occurred in the park that night. This message did little to improve Mr. Isaac’s conduct at trial.
ii. Mr. Isaac testified that he observed a large group of people. Mr. Isaac agreed that when he was making his observations, he was far away and that his view was partially obstructed by a tree and other people.
iii. Mr. Isaac testified that all three males were wearing dark hoodies with the hoods over their heads. No other witness did so.
iv. Mr. Isaac’s evidence is also problematic due to his admitted lies. For example, he admitted to lying to the police when he advised that he knew the deceased, Mr. Witt. He felt that he needed to maintain that lie during these proceedings, when he testified under oath.
v. Further, Mr. Isaac said that he observed a bottle drop from one of the males as he ran from the scene. This evidence is contradicted by the evidence of numerous other witnesses who testified that the bottle was used as a weapon before the stabbing incident occurred. No bottle was found in the field where Mr. Isaac testified it was dropped.
[140] Although Mr. Isaac describes the involvement of a male “white, more tanned, olive or medium skin colour” that is consistent with a description of Mr. MacIsaac, I do not rely on his evidence to identify Mr. MacIsaac as a participant in this incident.
xiii. Mr. Ball
[141] Mr. Ball was not in the park attending the Jam nor did he know anybody present. He testified that his attention was drawn to the commotion. He saw a person with a knife in his right hand on the walkway between the playground and the clubhouse. The knife blade caught a reflection of light and stood out. He estimated the length of the blade as four to five inches.
[142] Mr. Ball described the male with the knife as follows: taller than everybody (perhaps by one foot) and at least three years older than the male stabbed (Mr. Witt); wearing a light coloured pullover hoodie with a “fade” haircut. The hair was not blonde and was probably dark although he could not be certain.
[143] Mr. Ball did not observe the stabbing itself. After seeing the male on the path with the knife, he heard somebody yelling, “I’ve been stabbed”. Later, he heard on the news that a male was stabbed and had died.
[144] Mr. MacIsaac was not wearing a light hoodie; he was wearing a light t-shirt. As such, Mr. Ball got the colour right but the style wrong. Although not a classic “fade” cut (i.e., when the hair is shaved close to the scalp at the bottom and longer on top), Mr. MacIsaac’s hairstyle appears to be a dark blonde colour and is short on the sides (although also on top). The blade of Mr. MacIsaac’s knife was four inches in length, the size estimated by Mr. Ball.
[145] Despite the description of a white hoodie rather than a white t-shirt, I accept Mr. Ball’s evidence. He describes someone with a resemblance to Mr. MacIsaac wielding a knife which Mr. MacIsaac said was drawn, although in a different location.
xiv. Video Evidence
[146] There is a video clip showing footage of the view from the community centre facing the skate park (at the east end of the park). The video shows a male in a white shirt that is loose and comes down to the hip area. There is a strap across his body, extending from his left shoulder to his right hip. The person is also wearing a hat. That is the only white shirt shown in the video surveillance as the others shown appear to be wearing dark colours. Crown counsel submits that the video taken from this camera shows Mr. MacIsaac running from the location of the stabbing.
[147] When giving evidence, Mr. MacIsaac was shown the video from the skate park camera. He agreed that the person in the video appears to be running away and agrees that there is a “possibility” that that person is him.
[148] I have viewed the skate park video evidence. I agree with the submissions of Counsel for Mr. MacIsaac that there are problems with this video evidence. For example, there is no time stamp confirmation on the video; it is unclear as to what is depicted in the video (i.e., who the people are in the video and what area it covers); it is not continuous, is choppy and as such, the images are distorted. I accept that the presence of compression artifacts may misrepresent the images on the video.[^22] Further, tones could be inverted on the video because of the low light cameras recording at night (i.e., black could appear white or white could appear dark).
[149] While the video is of poor quality, one can see the back of a person who appears to be moving in an easterly direction (i.e., towards the skate park). There is a tree observed in the video which appears to orient the footage closer to the west end of the playground. That person appears to be wearing clothing consistent with the clothing worn by Mr. MacIsaac that night. There are two distinguishing features that lead me to that conclusion: the person running is wearing a white t-shirt similar in shape to that worn by Mr. MacIsaac in the video from Main Station and the shot gunning video from Mr. Lee’s phone. The person is also wearing a bag that crosses the body from the left shoulder to the right hip. The strap is black, similar to the strap on the Bench bag and stands out in contrast to the white t-shirt. It, too, is consistent with Mr. MacIsaac’s appearance and observed in the video of the shot gunning incident. I agree with Mr. MacIsaac — there is the possibility that the person observed in that video is him.[^23]
[150] The video is but one piece of evidence I have considered in coming to my conclusion that Mr. MacIsaac was on the hill at the time of the stabbing.
Conclusion Re: The Stabbing on the Hill
[151] As I have stated above, in coming to my conclusion in relying on the evidence of the eyewitnesses who put Mr. MacIsaac or a white male at the hill when the stabbing occurred, I am cognizant of the frailties of eyewitness testimony that I have set out generally and more specifically above. Despite those frailties, I conclude the following:
i. While I am uncertain as to the specific content of the threats made, I find that there were threats to “stab”. I find that Mr. MacIsaac was in close proximity to Mr. Lee when the threats were made. As such, I do not believe Mr. MacIsaac’s account, that he did not hear any threats made during the altercation.
ii. The witnesses who have some familiarity with Mr. MacIsaac: Messrs. Francis, Hume, K.D., Ms. Pugh and Ms. Horler, put Mr. MacIsaac on the hill when the stabbing occurred.
iii. Many of those who had no familiarity Messrs. Lee and MacIsaac testified that the three who confronted the group associated with Mr. Witt included two black males and one white male. Messrs. Lee and Francis are black males. Mr. MacIsaac is white. Mr. MacIsaac testified, and I believe, that he was in the company of Messrs. Lee and Francis during the initial conflict.
iv. Most, if not all, witnesses testified that the more aggressive of the two black males was wearing a dark coloured hoodie (i.e., black, navy blue or grey) with white stitching. The photographs at trial show that the hoodie is dark in colour and that the white stitching is very distinctive. Mr. Lee was wearing such a hoodie.
v. Most, if not all, witnesses testified that the white male who participated in the initial confrontation also moved to the hill. That male was wearing a white shirt with a pattern all over it. This is a very distinctive T-shirt and it was, indeed, worn by Mr. MacIsaac.
vi. Most witnesses testified that Mr. Witt was pursued by at least two males to the hill, one black and one white. Again, Mr. Lee is a black male. Mr. MacIsaac is a white male.
vii. No witness (including Mr. Francis and K.D.) suggested that the white male with the distinctive white shirt retreated in the opposite direction of the hill after the initial confrontation.
viii. If the knife came out of the Bench bag in a location in the opposite direction of the hill as Mr. MacIsaac describes, then it is likely that no witnesses would have seen it. But that is not the case. Mr. Vesjiu must have observed Mr. MacIsaac withdraw the knife as he suggests because the identifying features of the knife (being pulled out of the sheath and red in colour) are simply too unique for him to have gotten this wrong. Further, Mr. Ball who has no association with either group, testified that he saw a male in a light coloured hoodie with a knife on the path between the playground and the clubhouse. Messrs. Ball and Vesjiu do not know each other and did not speak to each other after the stabbing but both saw a knife in the hand of a person wearing a white top.
ix. Although a third knife was found in a garbage bin following the incident, there is no DNA evidence that suggests it was used during this altercation. Further, no witness testified that they saw anybody else in possession of a knife during this altercation.
[152] After having considered the totality of the eyewitness evidence, I do not believe that Mr. MacIsaac withdrew from the confrontation shortly after it began and retreated to a location in the opposite direction of the hill. I find that he was on the hill when and where the stabbing occurred.
[153] I will now turn to a consideration of the post-offence conduct which supports the conclusion that Mr. MacIsaac was at the hill and involved in the stabbing.
Post-Offence Conduct
[154] Things done by accused persons after an offence is alleged to have occurred may provide circumstantial evidence of a material fact in issue. To be admissible, the post-offence conduct must be relevant to a material issue. In this case, Crown counsel submits that the post-offence conduct is relevant and admissible for the purpose of establishing participation in the crime and the intent required to commit second degree murder.
[155] The post-offence conduct of an accused is generally admissible to show that he or she acted in a manner which, based on “human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person”.[^24] Post-offence conduct can be probative of the participation of an accused in the alleged crime. It can also be used to support an inference regarding the state of mind of an accused.
[156] Post-offence conduct is circumstantial evidence. Similar to other forms of circumstantial evidence, the post-offence conduct permits the fact finder to draw particular inferences based upon a persons’ words or actions.[^25] The inferences that may be available from post-offence conduct depend on the specific conduct and the rest of the evidence.[^26] The Supreme Court of Canada recently described the exercise as follows, in R. v. Calnen,[^27] at para. 112 as follows:
112 In order to draw inferences, the decision maker relies on logic, common sense, and experience. As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn "must be reasonable according to the measuring stick of human experience" and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties' positions, and the totality of the evidence: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 77. That there may be a range of potential inferences does not render the after-the-fact conduct null: see R. v. Allen, 2009 ABCA 341, 324 D.L.R. (4th) 580, at para. 68. In most cases, it will be for the jury or judge to determine which inferences they accept and the weight [page350] they ascribe to them. ‘It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct’: Smith, at para. 78.
[157] While I find that the post-offence conduct is relevant, I do not find that it leads to the reasonable inference that Mr. Lee had the intent required for second degree murder and that Mr. MacIsaac is liable as a party to such an offence. In my view, the reasonable inference to draw from the post-offence conduct, together with the evidence of the eyewitnesses, is that Mr. Lee stabbed Mr. Witt at that hill and that Mr. MacIsaac participated as a party thereto. As they fled the park, they disposed of evidence that might identify them as the perpetrators of the crime of committing an assault on Mr. Witt – a stabbing. The evidence does not allow for the further inference that there was the requisite intent at the time of the stabbing to either kill Mr. Witt or inflict serious bodily harm that was likely to result in death.
[158] In coming to this conclusion, I have taken into account the alternative explanations for the behaviour of Mr. MacIsaac in particular. I will address the conduct of both Messrs. Lee and MacIsaac following the stabbing at the hill.
i. Running from the Scene
[159] Mr. MacIsaac testified, and I accept, that following the stabbing, he and Messrs. Lee, Francis and K.D. fled the park. They travelled from the playground in a southeastern direction in the area flanked by two baseball diamonds. They ran towards Cosburn Avenue. Attached hereto as Appendix “B” is a diagram of the residential neighbourhood adjacent to the park. It shows the streets travelled by the foursome and the locations where the Bench bag and two knives were disposed of.
[160] Mr. MacIsaac testified that he was bleeding as he ran. This was corroborated by Mr. Francis and K.D. who observed him bleeding. Members of the FIS testified that there were blood drops that led out of the park and south to Gledhill Avenue.[^28] The blood drops continued south on Gledhill Avenue then continued in a westerly direction along Holborne Avenue to Woodbine Avenue where Mr. MacIsaac was located by members of the TPS outside 1303 Woodbine Avenue.[^29]
[161] Mr. MacIsaac was in the company of Messrs. Lee, Francis and K.D. when he was apprehended. He was bleeding from his buttocks.
[162] It is well established that an inference of guilt may be drawn from flight from the scene of a crime.[^30] However, I draw no such inference in this case from Mr. MacIsaac’s flight alone. Many people fled the scene, most of whom were not involved in the stabbing of Mr. Witt. As such, the flight from the scene is of little or no probative value. It is what Messrs. Lee and MacIsaac said and did when they fled the scene that is of probative value.
ii. Discussions of Injury
[163] Mr. MacIsaac testified that while they were running, K.D. started “freaking out” and asked if anybody else was hurt. Mr. MacIsaac replied, “I’m [pretty sure or think] it was only me”. This evidence is somewhat confirmed by K.D. who testified that as they were running, K.D. asked, “Did anyone else get hurt?”. Mr. MacIsaac responded, “I think it was only me, I’m pretty sure.”
[164] Mr. MacIsaac testified that he asked Mr. Lee, “what happened on the hill”? Mr. Lee replied that he “stabbed the kid”. Mr. MacIsaac testified that he believed or assumed that Mr. Lee may have stabbed him as well, so he asked Mr. Lee if he had stabbed him. Mr. Lee replied “no”. I do not accept this evidence as true. It is contradicted by the evidence of K.D. which is rife with detail.
[165] At trial, K.D. was asked if anybody said anything about the cut to Mr. MacIsaac. K.D. testified that he remembered Mr. MacIsaac asking Mr. Lee “why the eff [fuck] he stabbed him”. According to K.D., Mr. Lee responded, “along the lines ‘it was an accident’ and ‘I’m sorry’”. This evidence is too detailed to have been fabricated by K.D. I accept this evidence because it makes sense.
[166] Mr. Lee’s admission to stabbing Mr. Witt during the confrontation and Mr. MacIsaac by accident is corroborated by the DNA evidence. The gold knife possessed by Mr. Lee (discussed further below) had DNA on it. It was analyzed and determined that Messrs. Witt and MacIsaac could not be excluded as contributors to the DNA in the blood found on it.
iii. “Ditch It”
[167] Mr. MacIsaac testified that he was “caught off guard” by Mr. Lee’s admission to the stabbing of “the kid” and that his adrenaline started pumping. He told Mr. Lee to get rid of the knife (the one that he used to stab Mr. Witt) when they were just leaving the park in the area of Cosburn and Gledhill Avenues. He told Mr. Lee to “ditch it”.
[168] Mr. MacIsaac testified that the reason that he told Mr. Lee to “ditch it” was because he was on a recognizance. One of the conditions was that he not possess any weapons. Further, he had just been involved in a fight and had pulled out a knife from the Bench bag and its sheath. Lastly, he was scared and did not want anyone to get into trouble.
[169] While Mr. MacIsaac’s evidence about the reasons for getting rid of the knife makes some sense, his explanation defies logic. He knew, from the time he initially entered the park and looked for a cigarette in the Bench bag, that he was in possession of a knife in contravention of his recognizance. Despite that, he continued to carry both the Bench bag and the knife in the park.
[170] Following his involvement in the altercation, Mr. MacIsaac testified that he removed the knife from the Bench bag for all to see. It does not appear that Mr. MacIsaac was concerned about being in breach of his recognizance at that time, nor was he concerned as he ran from the park.
[171] If Mr. MacIsaac is to be believed, at the time he gave the instruction to Mr. Lee to “ditch it” (i.e., the gold knife used to stab Mr. Witt) he still possessed the knife inside the Bench bag. After giving that instruction at Cosburn and Gledhill Avenues, Mr. MacIsaac ran with the Bench bag and knife, south on Gledhill Avenue and then west on Holborne Avenue before both where discarded (separately) in the area of 235-237 Holborne Avenue.
[172] The logical and reasonable inference is that Mr. MacIsaac directed Mr. Lee to dispose of the knife in an effort to get rid of the physical evidence connecting both of them to the stabbing that had just taken place in the park. I come to that conclusion after having considered the totality of the evidence.
[173] Mr. MacIsaac’s conduct, during the flight, is out of proportion to the culpability admitted (i.e. the breach of recognizance) and is more consistent with his participation in the altercation at the hill and the stabbing of Mr. Witt.[^31]
iv. Disposing the Bench Bag and Orange Knife
[174] Mr. MacIsaac testified that as he was running from the park, he started to feel hot. He began removing his clothing. He removed his hat, the Bench bag and thereafter his white t-shirt and his singlet. He passed the baseball cap and the Bench bag to the person closest. He used his shirts to stop the bleeding. He did not see what, if anything, happened to the Bench bag and the orange knife during their flight from the scene.
[175] There is no doubt that Mr. MacIsaac removed his t-shirt and his singlet after departing the park. He was shirtless by the time he got to Woodbine Avenue as shown in video taken from the TPS in-car camera. A resident at 241 Holborne Avenue (Mr. Lee Constant) described that one of the four males he saw running by his home was shirtless.
[176] I also accept that in order to remove both shirts, Mr. MacIsaac would have taken off his cap and the Bench bag. This makes sense. However, if Mr. MacIsaac is to be believed, the knife was put back in its sheath and into the Bench bag once he determined that he was not in peril in the park. Logically, he would have run with the knife in the Bench bag when he took flight from the park.
[177] By his account, Mr. MacIsaac would have passed off the Bench bag to the person closest who thereafter discarded it. Because the Bench bag was located in a hedge and the orange knife was located under a separate bush a couple of feet away, that person would have had to have the wherewithal to remove the orange knife from the Bench bag and discard both separately while running from the park. Neither K.D. nor Mr. Francis observed such an occurrence, likely because it did not happen.
[178] It makes more sense that Mr. MacIsaac ran from the park with the knife in his hand and discarded both the knife and the Bench bag on Holborne Avenue where they were located – in two different locations, several feet apart. Another reasonable inference to draw is that he passed both the Bench bag and knife to one of the other parties and then told them to “ditch it” when he did so.
[179] The inference of ditching the Bench bag and knife at somebody’s instruction is reasonable based on the evidence of Mr. Constant. As I have stated above, Mr. Constant was a resident of the neighbourhood. He was sitting on his porch at 241 Holborne Avenue at the time and observed four young males run by his home. One of them was a white male who was shirtless. He observed them stuffing something into the bushes and heard someone say, “get rid of it” at the same time.
[180] Thereafter, Mr. Constant located a strap in the hedge that separated the homes located at 235 and 237 Holborne Avenue. TPS attended and seized the bag – it was the Bench bag that had been discarded.
[181] Mr. Clayton Watts, also a neighbor on Holborne Aveune, located an orange knife under a large bush in front of 235 Holborne Avenue. TPS seized it. The blade on the orange knife is approximately 130-135 cm in length (or just over five inches).
[182] The DNA analysis of the red stain on the Bench Bag showed that Mr. MacIsaac could not be excluded as the donor of the red staining. This makes sense as he was wearing it when he was stabbed. A hair pick found inside the bag was also analyzed. Mr. Lee could not be excluded as the donor of the DNA on it. This makes sense because the Bench bag belongs to him.
[183] I am satisfied that the words “get rid of it” were uttered on Holborne Avenue and that that is what happened. The Bench bag and the orange knife were discarded, most logically by Mr. MacIsaac or at his direction. The reasonable inference to draw from this action is that the bag and knife were discarded to avoid the reasonable inference that they provided evidence that Mr. MacIsaac had possessed both during the melee in the park.
v. Disposal of the Gold Knife
[184] When they got to Woodbine Avenue, Mr. MacIsaac testified that he saw the TPS and they were stopped. He denies that he told Mr. Lee to get rid of the knife again, nor did he hear anybody say it. I accept that that is possible. Mr. Lee would likely have been smart enough to dispose of the knife without guidance from Mr. MacIsaac as he watched the TPS scout cars with lights flashing and sirens screeching about to descend on them.
[185] The video evidence from Mr. Luis Costabile’s home at 1297 Woodbine Avenue shows Mr. Lee pass in front of 1297 Woodbine Avenue walking south and then returning north to where the others were as well as the TPS, at 1303 Woodbine Avenue.
[186] Mr. MacIsaac was shown the video from Mr. Costabile’s home. He identified Mr. Lee on the video surveillance as going south on Woodbine Avenue and then north on Woodbine Avenue seconds later to join them. K.D. was also shown the video and gave similar evidence.
[187] K.D. witnessed Mr. Lee cross the street and return to the group. He saw Mr. Lee pull something gold out of his pocket. When shown a photograph of the knife located at 1297 Woodbine Avenue, K.D. identified it as the same gold knife that Mr. Lee had shown him previously. At the time he was shown the knife (prior to the night in question), Mr. Lee told K.D. that he had purchased the knife “downtown” and that it cost $50. Mr. MacIsaac agreed that he had seen it previously.
[188] TPS seized the gold knife found at 1297 Woodbine Avenue. DNA analysis indicated that Mr. Witt could not be excluded as the donor of the blood on the blade of the knife. Mr. MacIsaac could not be excluded as the donor of the blood on the handle.
Analysis of the After the Fact Evidence
[189] Crown counsel submits that some of the conduct of Messrs. Lee and MacIsaac is of assistance in relation to their mental state at the time of the stabbing. It is that evidence, together with all of the evidence, that supports their submission that Messrs. Lee and MacIsaac had the intent required for murder. I accept that the disposal of the Bench bag and two knives are relevant pieces of evidence. The proper approach is to consider the circumstances cumulatively, as a whole and in the context of all the evidence in the case. I have done so.
[190] I do not find that the post-offence conduct supports a rational inference of Mr. Lee’s intent to kill and Mr. MacIsaac’s knowledge of same. This is evident from the circumstances giving rise to Mr. Witt’s stabbing.
[191] Messrs. Lee and Witt had no history of violence in their relationship. In fact, they had no relationship at all. The altercation involving Messrs. Lee, MacIsaac and Witt arose suddenly in the context of perceived disrespect: their perception that the group associated with Mr. Witt was “talking shit”. It escalated quickly in front of dozens of witnesses. It was brief. It ended with the stabbing of Mr. Witt in the context of a melee.
[192] In these circumstances, logic and human experience suggest that Mr. Lee’s post-offence conduct was as consistent with a panicked reaction to his stabbing of Mr. Witt and his sudden and unintended death, as it was with a panicked reaction to his sudden and intended death. In my view, this evidence cannot be used to decide the intent for murder.
[193] However, I do find that Messrs. Lee and MacIsaac acted in concert to carry in the stabbing of Mr. Witt. Mr. Lee made threats to stab in the presence of Mr. MacIsaac. They brandished knives with the intention to stab Mr. Witt as they chased him to the hill. I accept that they meant to cause bodily harm when they did so. As such, I find that Mr. Lee stabbed Mr. Witt and that Mr. MacIsaac was a party to the stabbing.
Conclusion Re: Mr. MacIsaac’s Evidence
[194] For the abovementioned reasons, I do not believe Mr. MacIsaac’s evidence that he was NOT at the hill when Mr. Witt was stabbed. Further, when I consider his evidence together with the evidence that I do believe, it does not raise a reasonable doubt.
[195] I will now turn to Mr. Lee and provide reasons as to why I have found him guilty of manslaughter. I will then return to the analysis of Mr. MacIsaac and explain why I have found him guilty as a party to manslaughter.
Mr. Lee
[196] Crown counsel submits that Mr. Lee is the stabber and that he intended to murder Mr. Witt. They submit that he attended at the park that night in possession of a gold switchblade knife. He used it to stab Mr. Witt (intentionally) and Mr. MacIsaac (accidentally).
[197] To secure a conviction for second degree murder, Crown counsel must prove the following essential elements beyond a reasonable doubt:
i. That Mr. Lee caused Mr. Witt’s death;
ii. That Mr. Lee caused Mr. Witt’s death unlawfully; and
iii. That Mr. Lee had the state of mind for murder.
[198] I have concluded that Mr. Lee caused Mr. Witt’s death by stabbing him and that he did so unlawfully. However, I do not find that he had the required state of mind for murder. As such, he is guilty of manslaughter.
- Did Mr. Lee Cause Mr. Witt’s Death?
[199] To prove that Mr. Lee’s conduct caused Mr. Witt’s death, Crown Counsel must prove beyond a reasonable doubt that Mr. Lee’s conduct contributed significantly to Mr. Witt’s death. A person’s conduct may contribute significantly to another person’s death even though that conduct was not the sole or main cause of his death.
[200] The cause of Mr. Witt’s death is not contentious. It was described in the postmortem report authored by Dr. Cunningham as follows:
The cause of death: The cause of death was attributed to a stab wound of the left chest penetrating the left ventricle of the heart. The precise mechanism of death could not be reconstructed from the medical records available, although it would likely have involved blood loss from the heart into the chest as well as possibly an acute hemopericardium causing clinical tamponade.
Limitations of the opinion: Dr. Cunningham reported that he could not “ascertain with precision the nature of the implement used to cause the stab wound, although a blade or knife was most likely”.
[201] What is contentious is whether Crown counsel has proven beyond a reasonable doubt that Mr. Lee is the perpetrator who caused Mr. Witt’s death by stabbing him.
[202] I am satisfied that Mr. Lee possessed the gold folding knife at the park that night. I find that he used it to stab Mr. Witt, causing his death, and then discarded the knife in front of 1297 Woodbine Avenue shortly after fleeing the park. In coming to my conclusion, I rely on the evidence of the eyewitnesses that I have referred to above as well as the following.
a. The Gold Knife
[203] The gold knife was observed in the possession of Mr. Lee prior to the stabbing. The evidence supporting this finding is as follows:
i. When shown a photo of the gold knife seized, K.D. testified that he had previously seen Mr. Lee in possession it prior to his attendance at the park. He had been told that it had been purchased by Mr. Lee for $50. Mr. MacIsaac had also seen it previously.
ii. At Main Station, Mr. Hume testified that he asked K.D. why he was bringing his older friends (Messrs. Lee, MacIsaac and Francis) to the Jam. K.D. responded that he brought them for “protection”. K.D. also told Mr. Hume that “they had knives, two special surprises”.[^32] Following this exchange, K.D. walked over to Mr. Lee. He reached into the front pocket of Mr. Lee’s hoodie and pulled something out with his hand. K.D. walked back to where Mr. Hume was standing and showed him a knife with a “brass handle, wood and the blade”. Mr. Hume described the knife as a “switchblade because you’d press the button and a blade would come out”. He described it as a “brass, dirty gold colour”. The knife had a “bold look”.
iii. K.D. and Mr. Whitaker testified that a knife was used to puncture the hole in the beer can after exiting the TTC bus and upon their arrival at the park. That evidence is as follows:
i. When initially examined in-chief, K.D. testified that when they first got to the park, a knife was used to poke a hole in the beer can. He did not remember where the knife “came from” nor could he describe it. Following a successful s. 9(2) application, K.D. was taken to a portion of his preliminary hearing transcript. During that hearing, K.D. testified that Mr. Lee had used the gold knife to shot gun the beer. At trial, K.D. adopted that statement as true. K.D. then described the knife as one “that’s folded in half that you can open and it’s just all gold”.[^33]
ii. Mr. Whitaker testified that he was open to the idea of shot gunning a beer when he arrived at the park but changed his mind. At the time he was going to shot gun the beer, he observed Mr. Lee take a knife out of his pocket. He described the knife as a “metallic silver colour”. After Mr. Whitaker declined the opportunity to shot gun the beer, he observed Mr. Lee put the knife back into his pocket.[^34]
[204] The description of the knife is fairly consistent with the knife found at 1297 Woodbine Avenue after the stabbing: a gold switchblade.
[205] The fact that Mr. Lee attended at the park with a knife is not, on its own, indicative of an intention to kill nor of its use during the stabbing. It is simply a fact that I take into consideration in concluding that Mr. Lee possessed a knife while at the park.
b. Attendance at the Park
[206] As I have stated above, I accept most of the evidence of Mr. MacIsaac with respect what happened before the stabbing occurred. For example, I accept and believe:
i. That Mr. Lee was with Messrs. MacIsaac, Francis and K.D. before going to the park. He went to K.D.’s house, the LCBO, the waterworks and Main Station prior to arriving at the park by bus.
ii. Mr. Lee is a black male. He was dressed in the following clothing at all relevant times: a True Religion hoodie with white stitching that “really stands out”, as described by Mr. MacIsaac, and as observed in the video and photographs taken by TPS. He was wearing khaki pants and glasses. He had some facial hair.
iii. That after arriving at the park, he was present and took a video of K.D. shot gunning a beer. The video was retrieved from Mr. Lee’s phone.
iv. That after shot gunning the beer, Mr. Lee went to the area of the playground in and around the area of the picnic table.
v. That K.D. said something to Messrs. Lee and Francis that caused them to approach the group associated with Mr. Witt in and around the picnic table, just to the south and east of the playground. Mr. MacIsaac joined them, and the confrontation began.
vi. That Mr. Lee was confronting the group associated with Mr. Witt and asking them, amongst other things, if they were “talking shit”. Members of the group associated with Mr. Witt denied that they were talking shit.
vii. That Mr. Lee was present and close by when Mr. MacIsaac hit a male with the Captain Morgan rum bottle. Thereafter the confrontation escalated.
c. Pursuit to the Hill
[207] I am also satisfied that it was Mr. Lee who pursued Mr. Witt to the hill (in the company of Mr. MacIsaac) and used the gold knife to stab Mr. Witt, causing his death. In coming to this conclusion, I have considered the submission of Amicus, that Messrs. Lee and Francis are similar in appearance and therefore it would have been difficult to make out the distinguishing features between the two in order to identify Mr. Lee as the perpetrator. There are problems with this submission.
[208] Several of the witnesses who knew Mr. Lee from a prior acquaintance placed Mr. Lee at the hill at the time of the stabbing. Others, who did not know him, identified the perpetrator by his hoodie: a dark colour with distinct white stitching that Mr. Lee was wearing. This is to be contrasted with the grey t-shirt that Mr. Francis was wearing.
[209] The eyewitness evidence identifying Mr. Lee as the perpetrator is referred to in paras. 18 to 35 above and I rely upon it here. The witnesses, in my view, distinguish Messrs. Lee and Francis by their clothing as opposed to the similarities of their physical appearance, including race.
[210] In summary, I rely on the evidence of the eyewitnesses who identify either Mr. Lee or a black male wearing a hoodie with distinctive stitching at the hill. I have done so despite the frailties of their evidence described above. I find as follows:
K.D.: K.D. observed that shortly after the physical confrontation began, Messrs. Lee and MacIsaac continued fighting with one “kid” (Mr. Witt). Mr. Witt was grabbed by his gym bag. He lost his balance and tripped. He described that either Mr. Lee or Mr. MacIsaac threw a punch and that Mr. Lee “jumped” the kid. Immediately after the “kid” was punched, Messrs. Lee and MacIsaac fled from the hill.
When fleeing the park, Mr. Lee told Mr. MacIsaac that he had stabbed the “kid” and stabbed Mr. MacIsaac by accident. He is seen on video walking in the area of 1297 Woodbine Avenue where the gold knife was found, as described by K.D. when shown the video.
Mr. Francis: Although Mr. Francis does not put Mr. Lee at the scene of the stabbing, he identifies Mr. Lee as being involved in the verbal altercation and ultimately, a physical one. I acknowledge this is exculpatory evidence in favour of Mr. Lee. However, I reject his evidence on this point because it is not objective and is inconsistent with the evidence of the other eyewitnesses that I accept.
Mr. Whitaker: Mr. Whitaker testified that soon after his attention was drawn to the altercation, he observed Mr. Lee and a white male chasing Messrs. Larter and Witt to the hill. He saw Mr. Lee with a knife in his hand. Mr. Whitaker testified that he saw Mr. Lee make a swinging motion with his fist at around chest level. Mr. Whitaker gave a demonstration of what he saw that was described by Crown counsel on the record: “your right arm is swinging in a – it’s a little bit of an arched position down by your waist”. Mr. Whitaker did not see Mr. Witt get stabbed[^35] but heard him say, “help, help, I’ve been poked” which is slang for being stabbed. Everybody dispersed thereafter.
Mr. Hume: Mr. Hume observed Mr. Lee approach the group associated with Mr. Witt. The altercation was verbal and quickly escalated into a physical one. He heard a number of things said but observed Mr. Lee pull Mr. Witt out of the crowd. The confrontation then moved from the playground area to the bottom of the hill. Mr. Lee pursued Mr. Witt in the company of Messrs. MacIsaac and Francis.
At the hill, Mr. Hume observed Mr. Lee make the following motion: “like kind of like you’re bowling, you swing your arm back and then forward”. His fist was clenched.[^36] He saw Mr. Lee’s arm “swing back” and then forward to Mr. Witt. After that motion, he heard Mr. Witt say, “I’ve been stabbed, call an ambulance”. Mr. Hume did not see anything in the hands of Mr. MacIsaac at the hill nor did he see him do a thrusting motion similar to that described with respect to Mr. Lee.
In cross-examination by Amicus and after providing descriptions of Messrs. Lee and Francis, Amicus asked several questions about the similarities between the appearance of Messrs. Lee and Francis. (They are similar in appearance but their clothing that night was different.) The following questions were asked and answered suggesting that Mr. Hume was certain of what he saw:
Q. Okay. No, as the altercation moves from where it starts that you have told us about to where it ends, which is over by, as I understand it, the hill, Dwight [Mr. Francis] and Relle [Mr. Lee] are moving away from you?
A. Yeah.
Q. And so, at that point their backs are to you?
A. Yeah.
Q. And so, what you’re seeing then as they are moving away from you is you’re seeing two black males in similar clothing and similar hats who are of similar height and similar skin tone, neither of whom you know very well?
A. No. I could distinguish them at the time. There was Relle [Mr. Lee] next to Steven [Mr. MacIsaac] and Dwight [Mr. Francis] would remain behind the two.
Q. That wasn’t exactly my question. My question was as between Relle and Dwight, their backs were to you at this time period that I am asking you about and they were two black males with similar clothing and similar hats and similar height and similar skin tone, correct?
A. Yes.
Q. Okay. And you didn’t know either of them very well?
A. Yeah.
Q. And in fact, that was the first time you had ever seen Dwight?
A. Yeah.
Q. And after the stabbing, who tells you that it was Relle who did the stabbing?
A. Nobody. I was able – to pick out that it was Relle. I seen the arm move back. I just know it was Relle.
Q. You just knew?
A. Yeah.[^37]
Mr. Hume appeared honest and provided convincing evidence that it was Mr. Lee at the hill during the stabbing. As our Court of Appeal has reminded us, the specter of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law. However, I am satisfied that Mr. Hume correctly identified Mr. Lee as being at the hill when the stabbing occurred. He had spent a day with Mr. Lee and K.D. before this incident and therefore his evidence is recognition identification. Further, his evidence is corroborated by the evidence of other witnesses.
Ms. Darcie Pugh: Ms. Pugh testified as follows in relation to the stabbing:
Um, a commotion had broken out towards the bottom of the hill at the community centre. I looked over and I didn’t see anyone like fighting or anything, but it looked like someone was trying to run away but they couldn’t because someone had a hold of them. Further back on the path I looked back and I saw a man holding a knife and then he charged into the commotion of kids and afterwards everyone ran and people were screaming, ‘he has a knife’ or ‘he just got stabbed’ and then I saw Isaiah [Mr. Witt] trying to run up the hill as everyone else is running away.
Ms. Pugh cannot describe the man that ran to the group from the path because she did not see his clothes or face. That said, she described him as “black skin, tall”. She testified that the man who ran into the group was the man she saw making “thrusting motions towards the kid that was being held back”. When asked to describe this, Ms. Pugh testified, “ah, the hand holding the knife was moving back and forth from like in front of him to his stomach and it happened a couple of times to what I could remember”. She testified that she saw only one person with a knife and that that person was black skinned. That person ran with K.D. after the incident. In a conversation with K.D.’s mother immediately after the stabbing, she said that she believed that Mr. Lee had stabbed Mr. Witt.
Ms. Horler: I have considered Ms. Horler’s evidence. In summary, she places Mr. Lee between the hill and the picnic table at the time of the stabbing. She identifies only Mr. MacIsaac as being on the hill and observing a collision between he and Mr. Witt. For the reasons set out in paras. 92 to 97 above, I do not accept her evidence about Mr. Lee not being at the hill nor does it raise a reasonable doubt about Mr. Lee’s participation when I consider it with all of the evidence.
Mr. MacIsaac: Mr. MacIsaac testified that when Mr. Lee was at the hill (in the presence of two others), he saw somebody on their “butt but like kind of sitting up”. He observed Mr. Lee do what “looked like a thrusting motion” to that person. Mr. Lee was within arms’ length of the person on the ground when he did so. He did not see a knife in Mr. Lee’s hand at the time but almost immediately after he observed this, Mr. Lee fled the hill. (I will have more to say about Mr. MacIsaac’s evidence below.)
[211] The abovementioned witnesses who knew Mr. Lee from a prior acquaintance put him at the hill during the stabbing and observed him make a thrusting motion towards Mr. Witt who was on the ground.
[212] I have addressed the evidence of the stabbing from those witnesses who did not know Mr. Lee. I repeat and rely on that evidence referred to above. That evidence may be summarized as follows:
Mr. Kolev: Mr. Kolev testified that a black male who approached he and his friends at the beginning of the altercation looked older. He was wearing glasses and had a small beard and short hair. He was wearing a grey True Religion hoodie with white stitching. After the initial confrontation, Mr. Witt joined them. The two males (the black male in the True Religion hoodie with the white stitching and the white male) chased Mr. Witt to the hill. Mr. Witt ended up on the ground. Mr. Witt tried to get up and then one of the two did “what appeared to be the motion of stabbing him”. Mr. Kolev described the stabbing motion as “90 degrees straight ahead” towards Mr. Witt. After that motion, one of the males yelled “run” and they did so.
Mr. Larter: Mr. Larter testified that he was approached by three males (two black and one white). One of the black males was wearing a grey True Religion zip up hoodie with white stitching. Mr. Witt intervened, and he heard various things. The three males (two of them were black, he does not remember the skin colour of the third) turned their attention to Mr. Witt. They chased Mr. Witt to the hill. They surrounded him. He did not see any weapons but then heard Mr. Witt screaming in pain and saying, “they stabbed me”. The three males then ran off.
Mr. Vesjiu: Mr. Vesjiu testified that three men approached he and Mr. Larter in the park. He described two of them as follows: one was a black male in the True Religion sweater and one was a white male in a white beige shirt with hatches on it. They made a number of threats. The white male unsheathed a knife and Mr. Witt ran to the hill. The two males (just described) chased him. The black male did something similar to a “football tackle” and then the white guy made a stabbing motion (an underhand thrust). Thereafter, he heard Mr. Witt say, “help, I got stabbed”.
Mr. Paraskevopoulos: Mr. Paraskevopoulos heard yelling and saw three males who appeared older approach another group. One of the males was “white skinned” and the other two were “black skinned”. Mr. Witt backed up into a hill. Mr. Witt had a gym bag draped around his shoulder and it appeared that the three males pursuing him were “pulling on the end”, “grabbing onto it”. He could not say “who” exactly was doing “what” and “when”, but “it looked like the black guy was a little closer to him”. It looked like they “pushed” Mr. Witt to the ground. When Mr. Witt was on the ground, facing up, the white guy and the black guy with the True Religion hoodie were “equally close” to Witt. The other black male was a little separated from them. He did not see anything in the hands of the two males closest to Mr. Witt, but he saw their arms drawn back with their elbows parallel to their shoulders. Their hands were in the area of their waist, beside their hips. He believed that they were stabbing Mr. Witt.
[213] This is a summary of the evidence of the witnesses associated with Mr. Witt. Most, if not all, put a white male and a black male at the hill during the stabbing. All identify the unique t-shirt worn by Mr. MacIsaac and the unique True Religion hoodie worn by Mr. Lee.
[214] There is exculpatory evidence from those witnesses who did not know Messrs. Lee, MacIsaac or Witt. For example, I have considered the evidence of Mr. Bonisteel who described the three aggressors as wearing dark hoodies and with white skin (he believes); Mr. Isaac who described all three males in dark hoodies with their hoods up; and Mr. Ball who only describes a participant that resembles Mr. MacIsaac. This evidence, when considered with all of the other evidence, does not raise a reasonable doubt.
[215] It is not necessary that an identification witness be free from doubt about the correctness or certainty of his or her observations or descriptions. What is required, however, is that before this Court finds Mr. Lee guilty of any offence, the court be satisfied beyond a reasonable doubt, on the whole of the evidence, and with respect to each defendant considered separately, that he was one of the stabbers.
[216] In making my assessment of the evidence, I have paid close attention not only to aspects of the descriptions that have been provided which are consistent with the appearance of the defendants, but also with aspects that are not consistent. Inconsistencies in that respect are capable of raising a reasonable doubt with respect to whether the Crown has proved that the defendants, or either of them, were the stabbers.
Issues Re: Mr. Whitaker
[217] Another issue I have considered with respect to the evidence regarding Mr. Lee’s offence is the evidence of Mr. Whitaker’s state of sobriety at the time of making his observations in the park. I did not consider this evidence previously as counsel for Mr. MacIsaac submits that there is no evidence that Mr. Whitaker was intoxicated at the relevant time. This issue was raised by Amicus.
[218] Amicus submits, and the Court agrees, that the evidence of Mr. Whitaker is particularly important because if believed, he literally puts the knife that caused Mr. Witt’s death in Mr. Lee’s hands. Amicus submits that Mr. Whitaker’s evidence is not reliable because he was intoxicated by alcohol that night. The evidence of Mr. Whitaker’s intoxication arises from the evidence of K.D.’s mother. (I permitted Amicus to call her as a witness.)
[219] The evidence with respect to Mr. Whitaker’s alleged intoxication may be summarized as follows:
i. On the evening of the stabbing, Ms. D. (K.D.’s mother) learned that her son, K.D., was in police custody. She called Mr. Whitaker who had been with K.D. at the park. They talked briefly during a first call. Mr. Whitaker hung up so that he could obtain an update about the stabbing. During a second call, Mr. Whitaker told Ms. D. that he believed that Mr. Lee had stabbed the “kid”. Ms. D. described that Mr. Whitaker sounded “drunk” and “smashed” during the call. These conclusions were reached based on her previous observations of Mr. Whitaker, both drunk and sober. She testified that during one of their calls, Mr. Whitaker said, “I was drunk. I didn’t want to get into trouble.”
ii. Mr. Whitaker testified that he had a small amount of alcohol before the stabbing incident (a portion of a vodka cooler and a beer — a Molson Canadian Cold Shot). He denies that he was intoxicated in the park and was able to observe the incident accurately. He testified that he had been drunk before. On those occasions, he had consumed more than two alcoholic beverages. Mr. Whitaker testified that he was not “drunk” or “smashed” when speaking with Ms. D. He did not recall making the statement, “I was drunk. I didn’t want to get into trouble.”
[220] While Ms. D. may have believed that Mr. Whitaker was intoxicated on the night in question, there is no credible evidence to suggest that he was. Mr. Whitaker was consistent throughout his testimony that he had only consumed part of a vodka cooler and one beer before the stabbing. Despite a vigorous cross-examination, Mr. Whitaker never departed from his position regarding the amount of alcohol he had consumed.
[221] Other witnesses were asked about Mr. Whitaker’s sobriety on the night in question. These are witnesses who observed Mr. Whitaker at the park as opposed to speaking with him on the telephone following a traumatic event such as the stabbing. For example, Ms. Pugh saw Mr. Whitaker at the park. He provided her with a sip of his drink. She did not observe any signs of impairment during any of her interactions with Mr. Whitaker. Mr. Hume testified that he had a couple of sips of the cooler provided by Mr. Whitaker. He did not mention observing any signs that Mr. Whitaker was impaired.
[222] It is reasonable to infer that Mr. Whitaker did not sound like his “sober” self after the stabbing. He was speaking to K.D.’s mother in the aftermath of having witnessed a stabbing and running from the park. He testified that he was upset and was full of adrenaline. K.D. was in the hands of the police as Ms. D. tried to determine why. Like Mr. MacIsaac, I am certain that her adrenaline was running at the time.
[223] Although K.D. did not recall advising Ms. D. that he was drunk, he agreed that it was possible. He provided several reasons as to why he might have done so. For example, he might have said this to explain his decision to run from the scene of the crime as opposed to staying at the park and speaking to police after having consumed alcohol underage. Further, he candidly admitted that there were times that he was not intoxicated but suggested that it was to look “cool”.
[224] I do not believe that Mr. Whitaker was trying to minimize his alcohol intake on the night in question because he was concerned about his mother’s knowledge or opinion of his drinking habits. I believe and accept that he had a portion of one cooler and a beer before the stabbing occurred, nothing more. I am not persuaded that he was so intoxicated that he is not a reliable historian of his observations. Further, I note that Ms. D. did not find Mr. Whitaker so intoxicated that she did not have confidence in his observations that Mr. Lee committed the stabbing, thereby exonerating her son who was present in the park. Lastly, Mr. Whitaker’s observations are consistent with the observations of others as I have set out above.
Mr. MacIsaac
[225] I am also cognizant of the issues regarding the evidence of Mr. MacIsaac. One must be cautious when considering Mr. MacIsaac’s evidence as it applies to Mr. Lee’s involvement in the stabbing incident.
[226] It is obvious that Mr. MacIsaac would (and does) have a motive to shift the blame for Mr. Witt’s death to Mr. Lee. As such, when considering his evidence in the context of assessing the case against Mr. Lee, I have approached his evidence “with particular care because he may have been more concerned about protecting himself than about telling … the truth”. To be clear, Mr. MacIsaac had the right to have his testimony as it applied to him “considered free of any suggestion that it was inherently suspect” because of his status as an accused person. He is entitled to the reasonable doubt instruction in W.D.[^38]
[227] I have only applied the caution in relation to the case against Mr. Lee. That said, I also observe that Mr. MacIsaac’s evidence is consistent with the evidence of other witnesses: those who knew Mr. Lee and those who did not.
d. Post Stabbing
[228] There is no doubt that Messrs. Lee, MacIsaac and Francis fled the park after the stabbing. There is also no doubt that Mr. Lee fled from the hill where the stabbing occurred. I have described the post-offence conduct above. I rely on my findings made there as applicable to Mr. Lee:
i. I accept Mr. MacIsaac’s evidence that Mr. Lee admitted to stabbing Mr. Witt on the hill.
ii. I accept K.D.’s evidence that Mr. Lee admitted to stabbing Mr. MacIsaac by accident.
iii. I accept that Mr. Lee was one of the four males observed putting items (i.e. the Bench bag and the orange knife) into the bushes in the area of 235-237 Holborne Avenue.
iv. I accept that Mr. Lee is on the video taken from the home of 1297 Woodbine Avenue. He is seen walking south on Woodbine Avenue in front of 1297 and then returning, walking north seconds later. I find that he deposited the gold knife there as he was about to be approached by the TPS.
v. I find that the knife found at 1297 Woodbine Avenue is the knife that was used to stab both Messrs. MacIsaac and Witt. It was found by Mr. Costabile, the owner of the home.
vi. Mr. Randy Still, the forensic expert, testified that there was DNA on the gold knife. His DNA analysis could not exclude Messrs. Witt and MacIsaac (both stabbed during the incident) as contributors: Mr. Witt as a contributor to the blood on the blade of the knife and Mr. MacIsaac as a contributor to the blood on the handle.[^39]
[229] I find that the reasonable inference to be drawn from the evidence is that Mr. Lee disposed of the knife that stabbed Mr. Witt (on purpose) and stabbed Mr. MacIsaac (by accident). I am not persuaded that, at the time that Mr. Lee disposed of the knife, he was conscious of having murdered Mr. Witt. At that point, he knew that he had stabbed Mr. Witt, once.
[230] When I consider the evidence, cumulatively and as a whole, the evidence establishes beyond a reasonable doubt that Mr. Lee stabbed Mr. Witt in the park on the evening of October 7, 2017.
- Did Mr. Lee cause Mr. Witt’s Death Unlawfully?
[231] The next essential element for consideration is, “Did Mr. Lee cause Mr. Witt’s death unlawfully?” It is only a crime to cause the death of another person by an unlawful act and dangerous act.
[232] The unlawful act alleged in this case is an assault using a weapon, a knife. There is no dispute that assaulting a person with a weapon such as a knife is an unlawful act.
[233] The unlawful act must also be dangerous. An unlawful act is dangerous if a reasonable person, in the same circumstances, would realize that the unlawful act would likely put another person at risk of bodily harm. “Bodily harm” means any hurt or injury that interferes with another person’s health or comfort in something more than a brief or minor way. Crown counsel need not prove that a reasonable person would realize that the unlawful act would likely cause the death of another person.
[234] To decide this question, I have considered all of the circumstances of Mr. Lee’s conduct. I have taken into account the nature of the act alleged (stabbing with a knife in the heat of a confrontation while Mr. Witt was seated on the ground) as well as what was said at the time (Mr. Lee’s threats to stab). I have concluded that a reasonable person in the same circumstances would realize that his or her unlawful act would likely put another person at risk of bodily harm.
[235] As such, I am satisfied beyond a reasonable doubt that Mr. Lee caused Mr. Witt’s death unlawfully. He is guilty of manslaughter.
- Did Mr. Lee have the State of Mind Required for Murder?
[236] The next essential element for consideration is this: did Mr. Lee have the state of mind required for murder? For an unlawful killing to be murder, Crown counsel is required to prove beyond a reasonable doubt that Mr. Lee either meant to kill Mr. Witt or meant to cause Mr. Witt bodily harm that Mr. Lee knew was likely to kill Mr. Witt and was reckless as to whether Mr. Witt died or not.
[237] In considering this essential element, I take guidance from Watt J.A.’s Manual of Criminal Jury Instructions:
The crime of murder requires a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove beyond a reasonable doubt that Mr. Lee either meant to kill Mr. Witt, or meant to cause Mr. Witt bodily harm that Mr. Lee knew was likely to kill Mr. Witt and was reckless whether Mr. Witt died or not. In other words, to prove that Mr. Lee committed murder, Crown counsel must satisfy y[the trier of fact] beyond a reasonable doubt either that Mr. Lee meant to kill Mr. Witt, or that Mr. Lee meant to cause Mr. Witt bodily harm that Mr. Lee knew was so serious and dangerous that it would likely kill Mr. Witt and proceeded despite his knowledge that Mr. Witt would likely die as a result of that bodily harm. Crown counsel does not have to prove both. One is enough. ….
If Mr. Lee did not mean to do either, Mr. Lee committed manslaughter.
[238] Crown counsel is correct in submitting that the intention for murder can develop rapidly. They are further correct in submitting that the severity of the stab wound in the area of the chest is a basis upon which an inference of intent might be drawn. Moldaver J. observed this in R. v. Rodgerson[^40] where he stated at para. 19: “The more severe the injuries caused by [the defendant], and the more force required to inflict them, the stronger the inference that he intended to kill … or cause … serious injury.”
[239] In considering this essential element, I find that there is insufficient evidence to satisfy this Court beyond a reasonable doubt that Mr. Lee intended to kill Mr. Witt or cause him bodily harm that he knew was so serious and dangerous that it would likely kill Mr. Witt and proceeded despite his knowledge that Mr. Witt would likely die as a result of that bodily harm.
[240] In coming to my conclusion about Mr. Lee’s state of mind, I accept that Mr. Lee attended at the park in possession of a knife. He approached the group associated with Mr. Witt after being told by K.D. that they were “talking shit”. He confronted them and when he did so, he was loud and aggressive. He was initially in the company of Mr. Francis and then he was joined by Mr. MacIsaac. The altercation was with an unknown group.
[241] Crown counsel submits that it was at this point that Mr. Lee formed an intention to act in concert with Mr. MacIsaac to kill Mr. Witt. I do not agree.
[242] The verbal confrontation escalated quickly and became physical. Mr. MacIsaac hit Mr. Larter with the Captain Morgan rum bottle. Mr. Witt intervened. According to most, if not all witnesses, fists began flying. Some dropped out of the melee.
[243] I have no trouble concluding that Mr. Witt was singled out and that he was pursued to the hill by Messrs. Lee and MacIsaac. I find that Messrs. Lee and MacIsaac aggressively chased Mr. Witt to the hill as he tried to get away from them. I also find that while they were pursuing Mr. Witt, his gym bag was either tugged, causing him to fall, or he became tangled in it and he fell.
[244] I have no doubt that threats were made by Mr. Lee during the altercation. That said, I am uncertain either Mr. Lee or Mr. MacIsaac made a threat to kill. Crown counsel submits that these threats to stab and cause bodily harm should lead to a finding that the threats are indicative of an intention to cause bodily harm which they knew was likely to kill and that they were reckless as to whether death ensued. Crown counsel are correct, but I am uncertain about the exact nature of the threats.
[245] I agree with the submissions of Amicus that it is difficult to determine what, exactly, was said by Mr. Lee or anybody else involved in the melee as it progressed. It was only Mr. Hume who testified that he heard the words, “I’ll kill you” made by one of the participants and he seemed uncertain.
[246] Mr. Hume’s evidence is problematic with respect to precisely what he heard. He testified that he heard a bunch of threats. He testified in generalities, saying he heard “stuff like”, “I’ll kill you right now”. That said, he was “not too sure exactly”. Although I accept and believe that Mr. Hume heard some sort of threatening language, he was not certain about what he heard. The precise nature of the threats is an important factor when considering the mens rea required for murder.
[247] If this Court were able to conclude, with certainty, that Mr. Lee had said “I’ll kill you right now”, that is important evidence. A direct threat to kill is fairly strong evidence of one’s intent to kill that person. However, some sort of other threat (i.e., to stab) is less clear. The required intention for murder is subjective and may be established by inference. In deciding whether an inference is reasonable, it is common sense to consider that a sane and sober person intends the natural consequences of his or her actions.[^41] However, I cannot be certain that such a threat to kill was uttered, giving rise to that common sense inference.
[248] By way of contrast, I accept the there was a threat to stab as several witnesses testified that they heard something to that effect. That evidence is as follows:
Mr. Larter: As they got closer to the hill, he heard “I’m going to fucking stab you right now” or “don’t make me stab you”. When his memory was refreshed, he recalled hearing “I’ll fucking stab you”.
Mr. Vesjiu: Although he was uncertain as to who made the threats, he heard something along the lines of, “I’ll stab you up right now” or “I’ll stab you right now”. He also heard “We’ll stab you know”, “We don’t give a fuck” and “we don’t care”.
Mr. Whitaker: Mr. Whitaker heard, “do you think I am playing” suggesting that Mr. Lee intended to follow through with his threats.
[249] Various witnesses who testified gave different versions of what they heard. The importance is the consistency of the fact that they heard the word “stab”. The threat to stab makes sense. Both Messrs. Lee and MacIsaac were in possession of knives when the threat was made. Mr. Witt was stabbed on the hill.
[250] The threats (including the possibility that Mr. Lee made a threat to kill) are relevant but not dispositive of intent. This issue was addressed by Martin J.A. in R. v. MacKinlay,[^42] where he observed:
It, of course, would be for the jury to decide whether that statement was merely the transient outburst of a man who had consumed a large quantity of liquor or whether it indicated a resolve to kill the deceased. Threats sometimes, of course, proceed from temporary feelings of irritation rather than deep-rooted hostility, depending on the circumstances in which they are made.
[251] It matters not who uttered the threat to stab, although I find that it was Mr. Lee. Messrs. Lee and MacIsaac were close to each other when the threats were made as they pursued Mr. Witt. Witnesses who were further from the confrontation heard the threat to stab. As such, it is more likely than not that Mr. MacIsaac did as well. They continued to act in concert as they pursued Mr. Witt. The threats came to fruition as Mr. Witt was stabbed on the hill.
[252] While I find that there were threats made to stab Mr. Witt, such threats were made in the heat of the moment. I am certain they were meant to be taken seriously by Mr. Witt. That does not mean that Mr. Lee meant to kill him.
[253] Although Crown counsel need not prove motive, there was little time to develop animus and a motive to kill. The group associated with Mr. Witt and Mr. Witt himself were unknown to Messrs. Lee and MacIsaac. There is no history between them that may demonstrate the existence of animus that might have motivated them to kill Mr. Witt.
[254] I have considered the context in which the fatal event occurred. Although there may have been animus towards Mr. Witt, I am not certain that the circumstances of this occurrence motivated Mr. Lee (or Mr. MacIsaac) to kill Mr. Witt rather than threaten him by stabbing. All parties were moving towards the hill when the threats were made. It was dark and chaotic. Messrs. Lee and MacIsaac had been drinking. It is possible that during the melee at the hill, that Mr. Witt’s chest was not the intended target of the stabbing.
[255] In coming to this conclusion, I have inferred that as a matter of common sense, a person usually knows what the predictable consequences of his or her conduct are and means to bring them about. However, the cause of death of Mr. Witt resulted from one stab. The stab occurred in the context of a melee that escalated quickly and was over in under two minutes. I cannot be certain that in this context, Mr. Lee meant to stab Mr. Witt in the chest area of his body. There is a reasonable possibility that Mr. Lee exploded into violence within seconds without the specific intent to kill or to cause bodily harm that he knew was likely to kill. After all, he stabbed his own friend, Mr. MacIsaac. The existence of the state of mind required for murder is not the only rational inference that might be drawn from the whole of the evidence.
Intoxication
[256] While I find that the specific intent required for murder is not established beyond a reasonable doubt, I will deal, briefly, with the issue of intoxication raised by Amicus. I accept that Mr. Lee may have been intoxicated. However, I do not accept that his intoxication was “advanced” to the point where Mr. Lee did not have the capacity to form the requisite intent for murder.
[257] For the purpose of this analysis, I accept the following:
i. Mr. Lee had smoked marijuana earlier in the day, at approximately 3:00 p.m.
ii. Mr. Lee had consumed some food approximately five hours before the stabbing (a couple of slices of pizza and perhaps some chicken wings).
iii. There is circumstantial evidence that he suffered from mental health issues and that he was not taking his medication at the time of the incident.
iv. A 750 ml bottle of rum was shared by Messrs. Lee, MacIsaac and Francis before the stabbing occurred. Some was consumed at the waterworks. Some was consumed at the park.
v. Messrs. Lee, MacIsaac and Francis shared the rum equally. As such, it is likely that Mr. Lee consumed 1/3 of the bottle of rum.
vi. Mr. Lee was described by some (Messrs. Hume and MacIsaac as well as K.D.) as being intoxicated on the night in question. Mr. MacIsaac described Mr. Lee as “very” and “extremely drunk”. He was slurring his words. K.D. described Mr. Lee as “drunk”, “fucked up” (an eight out of ten) and “somewhat stumbling”.
vii. Mr. Lee’s blood alcohol content was above the legal limit for operating a motor vehicle.[^43] Dr. Mayer estimated that the blood alcohol content of Mr. Lee, at the time of the stabbing was 182-159 mg/100 ml.
[258] There is other evidence that would suggest that Mr. Lee was not so intoxicated that he could not form the intent for murder. For example, the following witnesses observed Mr. Lee at the time of the incident:
Mr. Francis: Mr. Francis, who consumed about the same amount of alcohol as Mr. Lee, testified that he did not feel drunk. The consumption of alcohol did not affect his memory of the incident.
Mr. MacIsaac: Mr. MacIsaac appears to have consumed a similar amount of alcohol as Mr. Lee. Dr. Mayer’s opinion was that his blood alcohol content at the time of the confrontation would have been approximately 80-95 mg of alcohol in 100 ml of blood. Mr. MacIsaac testified that he had a “buzz” but was not so intoxicated that he could not recall the events in question.
There is no suggestion that Mr. Lee was slurring his words at the time of the altercation because Mr. MacIsaac could clearly hear Mr. Lee ask the group associated with Mr. Witt if they were “talking shit”. Further, Mr. Lee was responsive to Mr. MacIsaac’s questions when fleeing the park after the stabbing. Again, there is no suggestion that he was slurring his words at that time.
Arresting officers: Members of the TPS who arrested Mr. Lee moments after the stabbing testified that Mr. Lee did not appear intoxicated.
Ms. Pugh: Ms. Pugh testified that no one at the park was drunk that night as did Messrs. Larter, Kolev and Paraskevopoulos.
[259] Further, I was able to observe Mr. Lee during the video as he walked past 1297 Woodbine Avenue and the footage from the TPS in-car camera. He did not appear to be intoxicated. For example, he did not appear to be unsteady on his feet.
[260] I accept and adopt the observations of Martin J. A. in R. v. MacKinlay, at pages 321-322: “If the accused by reason of intoxication was incapable of forming the required intent, then he obviously could not have it.” It is trite to say that alcohol intoxication can have an adverse impact on cognition and foresight. However, the consumption of alcohol may simply remove one’s inhibitions and restraints with little or no impact on a person’s foresight of the predictable consequences of his or her conduct.[^44]
[261] Based on the evidence outlined above, I accept that when Mr. Witt was stabbed by Mr. Lee, he might have been intoxicated. However, I find that he was not so intoxicated as to be incapable of forming the intent to kill or cause bodily harm that he knew was likely to kill.
[262] For the abovementioned reasons, I do not find that Mr. Lee was in a state of “advanced” intoxication such that he was unable to form the requisite intent for murder. I simply find that he did not have such an intent.
Conclusion Re: Mr. Lee
[263] Having considered the whole of the evidence in the context of the burden of proof in a criminal trial, I have a reasonable doubt that Mr. Lee did not have one or the other intents required for murder at the time of the stabbing. The third essential element for second degree murder has not been proven. As such, Mr. Lee is guilty of manslaughter.
[264] I will now turn to my reasons as to why Mr. MacIsaac is also guilty of manslaughter.
Mr. MacIsaac: Guilty of Manslaughter as a Party
The Law
[265] As stated above, Crown counsel relies on ss. 21(1)(b) and (c) of the Criminal Code to find that Mr. MacIsaac is liable as an aider and abettor to Mr. Lee.
i. Aiding
[266] In order to be found guilty of an offence as an “aider” pursuant to s. 21(1)(b) of the Criminal Code, Crown counsel must prove that Mr. MacIsaac:
i. Intentionally engaged in some conduct that actually assisted Mr. Lee in committing the offence; and
ii. Intentionally engaged in that conduct for the purpose of aiding Mr. Lee in the commission of the offence.
[267] As stated in Watt’s Manual of Criminal Jury Instructions, a person may be found guilty of an offence because he or she helped somebody else to commit it. The instruction provides as follows:
[2] An aider may help another person commit an offence by doing something (or failing to do something that it was his/her duty to do). It is not enough that what the aider does (or fails to do) has the effect of or resulted in helping the other person commit the offence. The aider must intend to help the other person commit the offence. Actual assistance is necessary. This is the conduct requirement.
[3] It is not enough that a person was simply there when a crime was committed by someone else. In other words, just being there does not make a person guilty as an aider of any or every crime somebody else commits in the person’s presence. Sometimes, people are in the wrong place at the wrong time.
[4] On the other hand, if a person:
• Knows that someone intends to commit an offence; and
• Goes to or is present at a place when the offence is committed to help the other person commit the offence,
that person is an aider of the other person’s offence and equally guilty of it.
[5] Aiding relates to a specific offence. An aider must do something for the purpose of helping the other person commit the offence. The state of mind requirement, expressed by the term ‘purpose’, requires Crown counsel to prove both intent and knowledge.
[6] For intent, Crown counsel must prove that Mr. MacIsaac intended to help Mr. Lee to commit the offence, although Crown counsel need not prove that Mr. MacIsaac desired the successful commission of the offence.
[7] For knowledge, Crown counsel must prove that Mr. MacIsaac knew that Mr. Lee intended to commit the offence, although Crown counsel need not prove that Mr. MacIsaac knew precisely how Mr. Lee would commit the offence.
[268] Abetting is a distinct route to liability.
ii. Abetting
[269] In order to be found guilty of an offence as an “abettor”, pursuant to s. 21(1)(c) of the Criminal Code, Crown counsel must prove that Mr. MacIsaac:
i. said or did something that actually encouraged, instigated, promoted or procured the crime to be committed by the principal (Mr. Lee): and
ii. uttered the words or engaged in the conduct with the intention of encouraging, instigating or promoting the commission of the offence by the principal. Put simply, Mr. MacIsaac as an abettor, must have intentionally acted to encourage Mr. Lee in the commission of an offence.[^45]
[270] To be found guilty of aiding and/or abetting the perpetrator of a crime, there must be some connection between the offence committed by the principal (Mr. Lee) and the alleged acts of aiding and abetting. That said, there is no requirement that the connection be a causal connection. Any act or omission committed by the alleged party to the offence, that occurs before or during the offence, and which “somehow and to some extent furthers, facilitates, promotes or assists or encourages” the principle offender in the commission of the offence is sufficient to establish party liability.[^46]
Analysis
[271] After having considered the totality of the evidence, I find that Mr. MacIsaac was a party to the conduct of Mr. Lee and as such he is guilty of manslaughter. I am satisfied beyond a reasonable doubt that Mr. MacIsaac aided and abetted Mr. Lee’s unlawful act which killed Mr. Witt.
[272] I come to the conclusion that Mr. MacIsaac is a party to the offence of stabbing and that he intended to help Mr. Lee commit the offence for the following reasons:
i. Mr. MacIsaac joined the confrontation when it was verbal. He was present when Mr. Lee suggested to the group associated with Mr. Witt that they were talking “shit”. As such, he was present at the commencement of the confrontation.
ii. Mr. MacIsaac became annoyed and swung the Captain Morgan rum bottle, hitting Mr. Larter. Thereafter, the physical confrontation began.
iii. Mr. Witt approached and was singled out by Messrs. Lee and MacIsaac. Messrs. Lee and MacIsaac turned their attention directly to him.
iv. As Mr. Witt tried to leave the confrontation, Messrs. Lee and MacIsaac acted in concert as they pursued him. Mr. MacIsaac did not leave the confrontation as he suggests, for the reasons I have set out above.
v. Threats were made to stab Mr. Witt during the confrontation. While I do not find that Mr. MacIsaac made the threats, he was present when Mr. Lee did so. He was also aware that Mr. Lee had a knife at the ready and at the very least, available to him. He was in close proximity to Messrs. Lee and Witt when the threats were made and as such, was aware that the threats were made in the heat of the confrontation. He knew that Mr. Lee intended to commit the offence of assault by stabbing Mr. Witt.
vi. Mr. MacIsaac continued to pursue Mr. Witt in the company of Mr. Lee after hearing such threats. I find that he did so because he intended to assist in the assault of Mr. Witt.
vii. At some point, one or both of Messrs. Lee and MacIsaac grabbed Mr. Witt’s gym bag. Whether he fell to the ground because of that or tripped as they were chasing him, Mr. Witt was prevented from fleeing by both Messrs. Lee and MacIsaac after he fell. Mr. MacIsaac’s conduct assisted in preventing Mr. Witt from escaping.[^47]
viii. At some point Mr. MacIsaac took the orange knife out of the Bench bag and was brandishing it during the chase and confrontation. As such, it is clear that Mr. MacIsaac intended to assist Mr. Lee in committing the offence of stabbing.
ix. The fight became a “two on one” at the hill. Mr. Witt was outnumbered and trapped. Mr. MacIsaac’s assistance at the hill facilitated the commission of the crime carried out by Mr. Lee. As such, there was a connection between Mr. MacIsaac’s acts and the commission of the crime by Mr. Lee.[^48]
x. Mr. MacIsaac may have made thrusting motions towards Mr. Witt, but I do not find that he stabbed him. His acts, however, assisted in Mr. Lee succeeding in stabbing Mr. Witt.
xi. Mr. MacIsaac was stabbed by Mr. Lee during the commotion at the hill and as Messrs. Lee and MacIsaac were confronting Mr. Witt.
xii. After Mr. MacIsaac learned that Mr. Witt was stabbed and when he knew that he was stabbed, he fled the park in the company of Messrs. Lee, Francis and K.D.
xiii. While they ran, he confronted Mr. Lee about stabbing him during the incident. Mr. Lee admitted that he had stabbed Mr. MacIsaac accidentally and that he had stabbed “the kid” (Mr. Witt) intentionally.
xiv. Mr. MacIsaac or somebody at his direction, disposed of the orange knife and the Bench bag at 235-237 Holborne Avenue as they fled. He did so because that knife had been brandished during the altercation as observed by others, including Mr. Vesjiu.
xv. Mr. MacIsaac instructed Mr. Lee to dispose of his own knife.
[273] In summary, I am satisfied of the four elements giving rise to Mr. MacIsaac’s conviction pursuant to s. 21(1)(b) as follows:
i. Presence: I find that Mr. MacIsaac was present at the commencement of the confrontation and he was at the hill when Mr. Witt was stabbed by Mr. Lee.
ii. Effect: I find that Mr. MacIsaac’s pursuit of Mr. Witt, in the company of Mr. Lee, after Mr. Lee had made threats to stab Mr. Witt had the effect of aiding Mr. Lee. He assisted in preventing the escape of Mr. Witt while running towards the hill and at the hill.
iii. Intent to aid and abet: The intent to aid and abet is evident through Mr. MacIsaac’s conduct in the pursuit of Mr. Witt after hearing the threat to stab and while possessing the knife out of its sheath when he did so. After he heard the threats to stab made by Mr. Lee, he was aware of Mr. Lee’s intention to commit the unlawful act of stabbing and aided Mr. Lee to commit the act by his pursuit of Mr. Witt and his attendance at the hill.
iv. Reasonable foreseeability: A reasonable person would foresee the likelihood of injurious bodily harm when Mr. Witt was trapped at the hill and stabbed in the presence of both Messrs. Lee and MacIsaac. It is obvious that in light of the threats and pursuit that Mr. Witt was likely to be assaulted in some fashion. There is no need to foresee the exact nature of the assault.[^49] It is important to recognize that Crown counsel need not prove that Mr. MacIsaac knew that Mr. Lee was going to kill someone, nor that Mr. MacIsaac intended to help in the killing. All that must be proven is that Mr. MacIsaac knew that Mr. Lee intended to assault Mr. Witt with a knife and that he intended to help Mr. Lee to do so.
[274] For the abovementioned reasons, I find that Mr. MacIsaac aided Mr. Lee in the pursuit of Mr. Witt and his entrapment at the hill. His aid contributed to the death of Mr. Witt by assisting in the prevention of Mr. Witt from fleeing. Without his assistance, Mr. Witt may have made good his escape and avoided being stabbed by Mr. Lee. Mr. MacIsaac’s participation furthered and facilitated the crime.[^50] The unlawful act that he aided is one that he knew would likely cause some harm.[^51]
[275] For the same reasons, I find that Mr. MacIsaac was also an abettor, pursuant to s. 21(1)(c) of the Criminal Code. I come to that conclusion for the following reasons:
i. Mr. MacIsaac provided actual encouragement by his conduct. I find that he intended to encourage Mr. Lee to commit the crime of stabbing Mr. Witt by pursuing him to the hill following the threats and wielding his knife as he did.
ii. Mr. MacIsaac knew that Mr. Lee intended to commit a crime because he threatened to stab Mr. Witt and pursued him to the hill.
iii. Mr. MacIsaac went to the hill and was present at the hill for the purpose of committing the crime. I find that he intended that Mr. Lee commit the offence or knew that Mr. Lee intended to commit the offence and intended to encourage him through his aggressive conduct during the confrontation.
[276] Mr. MacIsaac was a party to the assault on Mr. Witt with a knife by aiding and abetting Mr. Lee. The assault caused Mr. Witt’s death. It was reasonably foreseeable that the assault by stabbing would put Mr. Witt at risk of bodily harm. As such, Mr. MacIsaac is guilty of manslaughter.
Conclusion
[277] Having carefully considered discrepancies and inconsistencies in the evidence, and the potential problems with identification evidence in this case, I find that the cumulative effect of the direct and circumstantial evidence establishes beyond a reasonable doubt that Messrs. Lee and MacIsaac were at the hill when Mr. Witt was stabbed. I am also satisfied beyond a reasonable doubt that Mr. Lee was the stabber and that Mr. MacIsaac aided and abetted him in that unlawful assault. The result was that Mr. Witt was stabbed and succumbed to his injuries resulting in death.
[278] Both the accused committed a culpable homicide notwithstanding that I am not satisfied that either of them had the requisite intent to be guilty of murder. As such, they are acquitted of second degree murder.
[279] Mr. Lee is guilty of manslaughter.
[280] Mr. MacIsaac is guilty of manslaughter.
Kelly J.
Released: June 16, 2021
APPENDIX “A”
(Map of Playground Area in Stan Wadlow Park)
APPENDIX "B"
(Map of Neighbourhood Adjacent to Stan Wadlow Park)
COURT FILE NO.: CR-19-70000261-0000
DATE: 20210616
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Tyrelle Lee and Steven Macisaac
REASONS FOR judgment
Kelly J.
Released: June 16, 2021
[^1]: Committed contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46. [^2]: The re-election was made to judge alone due to the inability to conduct a jury trial due to the COVID-19 pandemic. The decision to proceed by way of Zoom was made with the consent of all parties due to the COVID-19 pandemic as well. [^3]: At the commencement of trial and in their written submissions, Crown counsel submitted that there were four bases for the convictions of Messrs. Lee and MacIsaac: co-principals, aiders, abettors and common purpose participation. At the conclusion of their oral submissions, Crown counsel submitted that Mr. Lee was the stabber (the principal) and that Mr. MacIsaac aided and abetted him in the stabbing. [^4]: R. v. Campbell, [2001] O.J. No. 4954 [^5]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 [^6]: 35% alcohol. [^7]: 6% alcohol. [^8]: Shot gunning has been defined as poking a hole in the can. The person shot guns the beer by putting his or her mouth around the hole in the can. The tab is then pulled. The can rapidly drains and if consumed, can lead to feelings of intoxication more quickly. [^9]: The knife penetrated Mr. MacIsaac’s two shirts and his boxer shorts. This is evident from the photos taken after he was arrested. [^10]: R. v. Virgo, 2016 ONCA 792 at para. 13 [^11]: R. v. Virk, 2015 BCSC 981, at para. 7 [^12]: R. v. Clause, 2016 ONCA 859, at paras. 81-84 [^13]: R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.) [^14]: R. v. Henry, 2010 BCCA 462, at para. 75 [^15]: Page 151 [^16]: Page 54 [^17]: Page 55 [^18]: Page 19 [^19]: Page 26 [^20]: (Mr. Kolev initially testified that the pattern on the shirt was black, but it became clear, during his evidence, that he misspoke. He was certain that the pattern was red. He had told the officer right after the incident that the pattern was red as well as telling Officer Price. (He testified at the preliminary hearing and at K.D.’s trial that the pattern was red.) [^21]: Crown counsel was successful after bringing a s. 9(2) application pursuant to the Canada Evidence Act. [^22]: D.C. Branker of the TPS testified that a compression is a data reduction process. Compression permits the taking of some information rather than all information for the purpose of saving space. An artifact is an error that can be introduced in the recording through compression. [^23]: If the tones were, indeed, inverted this video would show a person in a black t-shirt with a white cross body bag. Not one witness described a person wearing either of these two items (a black t-shirt with a white cross body bag) at trial. [^24]: R v. Angelis, 2013 ONCA 70, 2013 ONCA70, at para. 51 [^25]: R. v. White, 2011 SCC 13, at para. 22 [^26]: R. v. Jackson, 2016 ONCA 20, 2016 ONCA, at para. 20 and R. v. Rodgerson, 2015 SCC 38, at paras. 2-21 [^27]: 2019 SCC 6 [^28]: Evidence of Sgt. Geoffrey Ellis. [^29]: D.C. John Smith noted blood drops on the sidewalk in front of 1303 Woodbine Avenue. There was also some red staining on the stairs of that home that he believed to be blood. He traced drops of blood from that area, east on Holborne Avenue to Gledhill Avenue to Cosburn Avenue and into the park. [^30]: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at para. 39 [^31]: Calnen, at paras. 124 and 126 [^32]: K.D. was not asked questions about this at trial. [^33]: In accepting this evidence, I am mindful that it is inconsistent with the evidence of Mr. Hume who testified that the hole in the can was punctured using keys. [^34]: Pages 43-44. [^35]: Page 92 [^36]: Page 55 [^37]: Pages 101-102 [^38]: R. v. Oliver, 2005 CanLII 3582 (ON CA), [2005] O.J. No. 596 (C.A.), at paras. 56, 57 and 60 [^39]: Mr. Still gave the following evidence which provides an explanation as to why Mr. MacIsaac’s blood may not be on the knife blade: “If it's a quick in-and-out depending on how far the blade goes in, it needs to first get through fatty tissue and layers and whatever clothing is over top of that area, could be multiple layers of clothing, so with the in-and-out you could get removal through the clothing - there may not be blood on it, you might get adipose tissue and no blood, but it doesn't necessarily mean you detect blood with a quick stab on that blade, and it's possible some of the material could be removed when it comes back out through the clothing.” [^40]: 2015 SCC 38 [^41]: R. v. Magno, 2006 CanLII 21758 (ON CA), [2006] O.J. No. 2590 (C.A.), at paras. 18-19 [^42]: (1996), 1986 CanLII 111 (ON CA), 28 C.C.C. (3d) 306 (Ont. C.A.) [^43]: Mr. Mayers put the BAC of Mr. Lee at the time of stabbing at between 182-159 mg/ml (at least twice the legal limit for operating a motor vehicle). [^44]: R. v. Suppiah, 2021 ONSC 3146 at para. 148 [^45]: R. v. Henry, at para. 144; R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825 at pp. 837, 842; and R. v. Chambers, 2016 ONCA 684, at paras. 36-38 [^46]: Henry, at para. 145; R. v. Dooley, 2009 ONCA 910, at paras. 118-124 [^47]: Dunlop v. R., 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881 [^48]: R. v. Dooley (2009), 2009 ONCA 910, 249 C.C.C. (3d) 449 (Ont. C.A.) [^49]: R. v. Mariani, 2007 ONCA 329, at paras. 54-56 [^50]: R. v. Dooley (2009), 2009 ONCA 910, 249 C.C.C. (3d) 449 (Ont. C.A.) [^51]: R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] S.C.J. No. 119, 60 C.C.C. (3d) 97 (S.C.C.) at para. 40