COURT FILE NO.: CR-21-30000218-0000

DATE: 20211028

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

-and-

MICHAEL MACKINNON

Jonathan Smith and Levi Vandersteen, for the Crown

Dirk Derstine and Colin Sheppard, for Mr. MacKinnon

HEARD: March 30, 31, April 1, 6-9, 19-23, 26-30, May 4-7, 10-14, 17-19, 26, 27 and 28, 2021

Justice J. Copeland

REASONS FOR JUDGMENT

TABLE OF CONTENTS Paragraph #

Introduction..................................................................................................................................... 1

Overview......................................................................................................................................... 6

Procedural issues........................................................................................................................... 30

General legal principles................................................................................................................. 32

The Evidence................................................................................................................................. 50

(i) Mr. MacKinnon’s activities on June 15, 2018 before arriving at the Working Dog........ 53

(ii) The Activities of Paul Spilchen, Richard Deliva, and Gordon Forgues before arriving at the Working Dog.................................................................................................................................... 74

(iii) Events inside the Working Dog........................................................................................ 98

(iv) Events in the darts area between Mr. Spilchen and Mr. Eric Carter............................... 120

(v) Level of intoxication of different individuals................................................................. 152

(vi) Arrival of Chris Williams................................................................................................ 170

(vii) Events outside the bar before the taxi arrives................................................................. 173

(viii) Departure of Paul Spilchen, Richard Deliva, and Gordon Forgues in the taxi and return on foot 191

(ix) The object in Mr. MacKinnon’s hands at approximately 2:02:57-2:03:00 on the Working Dog security camera video................................................................................................................... 212

(x) Events immediately preceding the stabbing and the stabbing (after return of Mr. Spilchen’s group on foot)................................................................................................................................. 226

(a) ... The video evidence.................................................................................... 227

(b) ... Mr. Dimitruk’s evidence about the stabbings............................................ 224

(c) ... Mr. Deliva’s evidence about the stabbings................................................ 248

(d) ... Mr. Forgues’ evidence about the stabbings................................................ 258

(e).... Mr. Deliva’s hearsay statements about the stabbings............................... 268

(f) ... Mr. Carter’s evidence about the stabbings................................................. 297

(g) ... Mr. MacKinnon’s evidence about the stabbings........................................ 300

(xi) Mr. MacKinnon’s actions after the stabbing................................................................... 311

(xii) The disposition of the knife and the white T-shirt.......................................................... 338

(xiii) Medical evidence re: Paul Spilchen’s injuries and cause of death................................. 344

(xiv) Medical evidence re: injuries to Richard Deliva............................................................. 354

(xv) Mr. MacKinnon’s activities the next morning and into June 17, 2018 up until the arrest............................................................................................................. 364

(xvi) Mr. MacKinnon’s background – neglect and abuse in childhood.................................. 371

(xvii) Mr. MacKinnon’s background – being shot at age 17.................................................... 386

(xviii) Mr. MacKinnon’s evidence about the continuing impact of the shooting on him............................................................................................................... 393

(xix) Mr. MacKinnon’s background – records of family physician Dr. Eric Ireland.............. 406

(xx) Expert evidence – Dr. Milan Pomichalek....................................................................... 414

(xxi) Expert evidence – Dr. Julian Gojer................................................................................. 446

(xxii) Expert evidence – Dr. Lisa Ramshaw............................................................................. 477

Criminal Responsibility.............................................................................................................. 498

(i) Law in relation to criminal responsibility and automatism............................................. 502

(ii) Assessment of the credibility and reliability of Mr. MacKinnon’s evidence................. 518

(a).... Mr. MacKinnon’s inconsistent statements about the events of the stabbings and shortly after the stabbings....................................................................................... 539

(b).... Mr. MacKinnon’s actions after the stabbings appear to be organized, rational, and complex...................................................................................................... 565

(c) ... The “Loss” of Mr. MacKinnon’s knife from his pocket, when nothing else was lost from his shorts pocket and the missing T-shirt support an inference that he intentionally disposed of them......................................................................................... 579

(d) ... Mr. MacKinnon refused to be interviewed by the Crown psychiatrist in order to shield his claim of dissociation from scrutiny............................................................ 591

(e) ... As it relates to the NCR defence, where Mr. MacKinnon bears the burden of proof on a balance of probabilities, I am not satisfied that Mr. Spilchen or Mr. Deliva made a threat to shoot someone........................................................................................ 602

(f) ... Additional issues regarding the credibility and reliability of Mr. MacKinnon’s evidence.................................................................................................................... 636

(iii) Assessment of the expert evidence................................................................................ 643

(iv) Considerations of factors discussed in Stone................................................................ 696

(v) Conclusion on criminal responsibility............................................................................ 707

Level of intent – has the crown proven beyond a reasonable doubt the intent required for murder and for attempted murder?....................................................................................................................... 708

(i) Basic principles in relation to assessment of evidence, credibility, and the burden of proof.......................................................................................................... 709

(ii) Applicable law regarding homicide.......................................................................... 724

(iii) Has the Crown proven beyond a reasonable doubt that Mr. MacKinnon had the intent required for murder at the time he stabbed Paul Spilchen?.......................................................... 732

(iv) Law in relation to the intent required for attempted murder..................................... 760

(v) Has the Crown proven beyond a reasonable doubt that Mr. MacKinnon had specific intent to kill at the time he stabbed Richard Deliva?......................................................................... 761

(vi) Included offences...................................................................................................... 764

Provocation.................................................................................................................................. 775

(i) The Air of reality threshold....................................................................................... 780

(ii) The Partial defence of provocation........................................................................... 783

(iii) Application of the air of reality test.......................................................................... 792

Conclusion................................................................................................................................... 816

Introduction

[1] Michael MacKinnon is charged with second-degree murder in relation to the stabbing death of Paul Spilchen, and attempted murder in relation to the stabbing of Richard Deliva. The allegations arise out of events in the early morning hours of June 16, 2018, outside the Working Dog Saloon bar (“the Working Dog” or “the bar”) in Scarborough, just after closing time.

[2] Much of the evening is captured on the security camera videos from the bar. In particular, the stabbing, and the events immediately preceding it are captured on video. However, although some things are very clear from the video, other things are less clear, both because of the quality of certain images and because of the fact that the video does not have sound, and thus does not capture any words spoken by anyone involved.

[3] Mr. MacKinnon does not dispute that he inflicted one stab wound to each of Mr. Spilchen and Mr. Deliva, in the torso area. Mr. MacKinnon does not dispute that the stab wound to Mr. Spilchen caused his death. Mr. MacKinnon does not dispute that the stab wound to Mr. Deliva caused him serious injuries. The central issues in dispute in this case relate to the nature of the events immediately preceding the stabbings, and Mr. MacKinnon’s state of mind at the time of the stabbings. These issues turn in large measure on the court’s finding with respect to the credibility and reliability of the evidence of various witnesses, including Mr. MacKinnon.

[4] My reasons for judgment are structured as follows. I first set out an overview of the evidence and my ultimate findings. I then address some procedural issues about the manner in which the trial was conducted, and general legal principles. I then review the evidence. Many of the surrounding facts in this trial are not in dispute. To the extent that many facts are not significantly in dispute, I make findings on those areas in my review of the evidence. For more contested areas of evidence, I make findings of facts in the analysis of my reasons. I then consider the primary contested issues: whether Mr. MacKinnon has met his burden to establish that he was not criminally responsible by reason of a mental disorder; whether the Crown has proven the intent required for murder and for attempted murder beyond a reasonable doubt; and to a limited extent, I consider the partial defence of provocation.

[5] Before turning to the overview of the case, I want to step back for a moment from the legal and factual issues I must decide. The events of the night of June 15/16, 2018 outside the Working Dog were tragic. Paul Spilchen was a 29-year-old man, in the prime of his life. He had his whole life before him. He had plans to be married in a few weeks. Mr. Spilchen’s death at such a young age was senseless. I have no doubt that it caused and continues to cause immeasurable pain to his loved ones, pain that this trial cannot remedy. Richard Deliva, also a young man, suffered life-changing injuries. Because a criminal trial focuses on the evidence, the legal issues, and whether the parties have met the legal burdens to prove elements of offences and defences, the human side of the equation can recede from prominence. But it is important to recognize the human loss that lies at the heart of this trial.

Overview

[6] At the outset, I will provide a very summary overview of the factual context of the case, in order to provide context for the issues in dispute. On the evening of June 15, 2018, Mr. MacKinnon attended at the Working Dog with Jaelaune Dimitruk. Mr. Dimitruk is the son of a close friend of the sister of Mr. MacKinnon’s spouse. Based on the evidence I heard, in some sense, I would describe the relationship is akin to one between an uncle and a nephew. Mr. MacKinnon’s evidence was that he had worked that day, gone to his mother-in-law’s for dinner, as he often did on a Friday night, and then went to the bar with Mr. Dimitruk. They arrived at the bar at approximately 11:30 p.m. They sat at the bar. Their evening at the bar, as depicted on the security camera video from the bar, appears uneventful. Mr. MacKinnon sat at the bar, drank five Bud Light tall boys, talked to Mr. Dimitruk, and to the bartender Martina Neupauer, and watched TV. Mr. Dimitruk’s evening at the bar, based on the video, was similar, except that he consumed more alcohol, and from time to time, he can be seen socializing with other patrons at the bar, including Mr. Deliva. At approximately 1:31 a.m., they were joined by Chris Williams, who was the spouse of the sister of Mr. MacKinnon’s spouse.

[7] Mr. Spilchen, Mr. Deliva, and a third friend, Gordon Forgues, also attended at the Working Dog that night. They arrived later, at approximately 12:30 a.m. Before arriving at the Working Dog, Mr. Spilchen’s group had been drinking at the home of Mr. Forgues, where they were painting, and also attended at three other bars. The evidence conflicts, although only to a limited degree, about how much they had to drink. I am satisfied that they were likely significantly intoxicated by the time they arrived at the Working Dog, and certainly were by the time they left the Working Dog.

[8] Based on the video and other evidence, the evening of Mr. Spilchen’s group was also mostly uneventful inside the Working Dog prior to closing. There is one issue which I make factual findings on below in relation to a disagreement between Mr. Spilchen and another patron at the bar, Eric Carter, in the darts area, around 1:20 a.m.

[9] The bar closed at approximately 2:00 a.m. Mr. MacKinnon, Mr. Dimitruk, and Mr. Williams left the bar. Mr. Spilchen, Mr. Deliva, and Mr. Forgues left at roughly the same time. The six men were out in front of the bar entrance for a few minutes. This is only partially captured on video. From the video, it is clear that Mr. Dimitruk was engaged in conversation with Mr. Deliva and Mr. Spilchen. Mr. Forgues was present, but it is difficult to tell if he was actively participating in the conversation. The Crown alleges that Mr. MacKinnon was also involved in this conversation. As with Mr. Forgues, I find that the videos show that Mr. MacKinnon was present for that part of the evening, just outside the door to the bar, but it is difficult to tell if he was actively participating in the conversation. To the extent one can see him out the bar window, he appears to just be standing there. The view on the video from inside the bar is not clear. For much of the time, the view of Mr. MacKinnon is obstructed by other people or by a pillar. The view outside also shows Mr. MacKinnon spending some time away from the others, speaking to Mr. Williams close to Mr. Williams’ car, which was parked a short distance from the entrance to the bar.

[10] Ultimately, a taxi which had been called by Mr. Spilchen arrives. Mr. Spilchen’s group gets in the taxi and leaves. Just before they leave, they can be seen apparently saying goodbye to Mr. Dimitruk, which includes Mr. Dimitruk embracing both Mr. Spilchen and Mr. Deliva.

[11] After Mr. Spilchen’s group leaves, Mr. MacKinnon and Mr. Dimitruk enter the passenger side of Mr. Williams’ car (Mr. Williams was already in the car). Mr. Dimitruk shuts the back door. The front passenger door, where Mr. MacKinnon is sitting, is not yet shut.

[12] Within less than 30 seconds after the taxi pulls out onto St. Clair Avenue East, Mr. Spilchen, Mr. Deliva, and Mr. Forgues return to the parking lot outside the bar on foot. According to the taxi driver, who testified at trial, the taxi had turned onto St. Clair, and gone only 10 or 20 metres, when one of the men (he was not sure which one), told him to stop. Indeed, the top of the taxi is still in view on the video behind a fenced area when it stops. I would estimate it had gone less than 10 metres. They got out of the taxi, and walked back to the Working Dog parking lot. The taxi driver testified that the passenger in the front seat left the door open when he left. The men did not pay their fare. Mr. Deliva and Mr. Forgues have no memory of why they returned. The reason they got out of the taxi and returned to the parking lot is one of the unanswered questions of this trial.

[13] Mr. MacKinnon testified that he saw them come back, and heard Mr. Deliva shout, “Hey buddy”. On the video, the three men in Mr. Spilchen’s group come back to the parking lot, with Mr. Deliva in front, advancing towards Mr. Williams’ car. Mr. Deliva is looking towards Mr. Williams’ car, and he appears to be speaking. Mr. MacKinnon and Mr. Dimitruk can be seen on the video getting out of the passenger side of Mr. William’s vehicle.

[14] I will not describe at this point in detail the next few minutes of the video, as I cover it in some detail below. What I find clear is that the tenor of the interaction between the two groups is different after Mr. Spilchen’s group returns after leaving in the taxi. Because there is no sound, one cannot draw firm conclusions from the video alone about what is happening. But the body language of the men is different than what was visible earlier. For a time, Mr. Dimitruk is engaging with Mr. Spilchen and Mr. Deliva. For a time, all of the men except Mr. Williams are in fairly close proximity. During this time, Mr. MacKinnon and Mr. Spilchen can be seen speaking, and they shake hands. Then Mr. MacKinnon steps away from the group and towards where Mr. Williams is standing a short distance away. Mr. MacKinnon then returns, and is standing near Mr. Spilchen and Mr. Deliva. They appear to be speaking. Mr. MacKinnon places his right hand on Mr. Deliva’s shoulder. He then moved his right hand back, and then suddenly makes a punching motion at Mr. Spilchen’s stomach with his left hand. Mr. MacKinnon then puts his right hand on Mr. Deliva’s shoulder, and makes a punching motion at his stomach with his left hand. There is no dispute that this is when the stab wounds were inflicted. It happens very quickly in the video, within the span of a few seconds.

[15] Mr. Deliva and Mr. Forgues have very limited memory of the stabbing and the events surrounding it. I discuss this further below. Mr. Deliva made hearsay statements to a police officer and a paramedic about events immediately before the stabbing, which I admitted into evidence under the spontaneous exclamation exception to the hearsay rule. I discuss that evidence below, including my conclusions about the ultimate reliability of those hearsay statements in the context of all of the evidence.

[16] Mr. MacKinnon testified that when Mr. Spilchen’s group came back after leaving in the taxi, he initially thought they had lost something. He heard Mr. Deliva yell, “Hey buddy”, and got out of Mr. Williams’ car to see what they wanted. Initially he was not concerned. The men were speaking to Mr. Dimitruk. But as the interaction continued, he felt that the conversation was not friendly, and that it started to feel tense and aggressive. He wanted to get Mr. Dimitruk away from the other group. He spoke to Mr. Spilchen, introducing himself as “Mike”, and saying that he lived in the neighbourhood and did not want any trouble. He shook Mr. Spilchen’s hand at this point. Then he heard someone say he was “going to get shot” or similar words making a threat about shooting. When this happened, he had an immediate emotional reaction of fear, going back to when he had been shot at the age of 17. He felt overwhelming fear. He felt like he was looking through a straw. He felt like his feet were stuck in quicksand. He felt like he was trying to run, but like his feet would not move. He then remembers running, and looking back expecting to get shot, but not seeing anything. Mr. MacKinnon testified that he did not remember anything about the stabbings after the threat, except for the emotions and physical feelings I have just outlined. However, he has made inconsistent statements about his memory of the stabbing.

[17] Expert evidence was led by the defence and by the prosecution in relation to what Mr. MacKinnon experienced at the time of the stabbing, and related psychiatric and psychological issues. I discuss this below.

[18] The defence position is that Mr. MacKinnon dissociated upon hearing a threat to shoot, and that his actions in inflicting the stabbings were involuntary. The background to the claim that Mr. MacKinnon dissociated at the time of the stabbing is based on his having had a very difficult upbringing, involving neglect and physical abuse, and then at the age of 17, having been shot in the chest at close range. As a result of the shooting, he suffered very serious injuries and came close to dying. The fact of the shooting is not in dispute, and is supported by hospital records from St. Michael’s hospital. From the combination of both factors, it is not in dispute that he developed post-traumatic stress disorder. It is in light of that background that the defence submits that Mr. MacKinnon dissociated when he says he heard a threat of shooting.

[19] After the stabbings, Mr. MacKinnon left the parking lot on foot. He travelled east on St. Clair, and then north up the first side street, Vivian Road. There, he entered Mr. Williams’ car. He attended at gas station and took money out of an ATM. After that, he and Mr. Williams spent the night at a hotel. Mr. MacKinnon testified that he has limited memory of the events after the stabbings; however, he has made inconsistent statements about this issue. Mr. MacKinnon was arrested on Sunday afternoon, June 17, 2018, at the home of his mother-in-law.

[20] This basic outline sets the scene for the following positions of the parties and issues in dispute in this trial.

[21] Mr. MacKinnon’s position is that at the time of the stabbings, as a result of hearing a threat involving shooting, he had an extreme emotional reaction, and dissociated, and his actions in inflicting the two stab wounds were not voluntary. Mr. MacKinnon raises this issue as a defence of not criminally responsible, as mental disorder automatism. If the court accepts Mr. MacKinnon’s submissions on this issue, he should be found not criminally responsible (“NCR”). The court would then have to consider whether to make a disposition pursuant to s. 672.45 and following of the Criminal Code, R.S.C., 1985, c. C-46, or to leave the decision on the initial disposition to the Review Board.

[22] If the court is not satisfied that he has met his burden to prove the NCR defence on a balance of probabilities, Mr. MacKinnon submits that the Crown has failed to prove the intent required for murder or attempted murder beyond a reasonable doubt. If the court accepts Mr. MacKinnon’s submissions on this issue, he should be found not guilty of the offences as charged, but guilty of the included offences of manslaughter and aggravated assault.

[23] If the court is satisfied that the Crown has proven the intent required for murder, the defence submits that there is an air of reality to the partial defence of provocation, pursuant to s. 232 of the Criminal Code, and that the Crown has failed to negative that defence beyond a reasonable doubt. If the court accepts Mr. MacKinnon’s submissions on this issue, on count #1 he should be convicted of the included offence of manslaughter.

[24] The Crown’s position is that there are significant problems with Mr. MacKinnon’s credibility. The Crown submits that the court should not be persuaded that he dissociated and acted involuntarily, and should find that Mr. MacKinnon has not met his burden in relation to the NCR defence.

[25] The Crown further submits that the evidence proves the intent required for murder and for attempted murder beyond a reasonable doubt.

[26] The Crown further submits that there is no air of reality to the defence of provocation, and alternatively, that even if the court finds there is an air of reality, the court should find that the Crown has negatived the defence beyond a reasonable doubt.

[27] Factually, the primary issues in dispute are what happened in the few minutes prior to the stabbing, and in particular, immediately before it; whether a threat was made by Mr. Spilchen or Mr. Deliva; did Mr. MacKinnon dissociate; and what was Mr. MacKinnon’s state of mind at the time of the stabbings. Much of the other surrounding factual context is either not in dispute, or not significantly in dispute.

[28] My conclusions on these issues are explained in detail below. I will state them now briefly:

(i) I find that Mr. MacKinnon has not discharged his onus to show that he was not criminally responsible at the time of the stabbings. I am not persuaded on a balance of probabilities that he dissociated and acted involuntarily. The primary reason that I come to this conclusion is because of concerns in relation to the credibility of Mr. MacKinnon’s evidence. Because of those concerns, the factual basis for the opinions of Dr. Pomichalek and Dr. Gojer is undermined. I also have concerns about the reliability of the evidence of Dr. Pomichalek distinct from the issue of the factual basis for his opinion.

(ii) I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. MacKinnon had the intent required for murder or for attempted murder at the time of the stabbings. For this reason, I find that the Crown has not proven count #1 or #2 as charged. However, I find that the Crown has proven beyond a reasonable doubt the included offences of manslaughter and aggravated assault.

(iii) I find that there is an air of reality to the partial defence of provocation. Had this case been a jury trial, I would have left the partial defence of provocation to the jury. However, I do not consider the defence on the merits, because it would involve hypothetical alternative fact finding of what facts would have existed if I had found that the Crown had proven the intent required for murder beyond a reasonable doubt.

[29] In the result, based on these conclusions, on count #1, I find Mr. MacKinnon not guilty of second-degree murder of Paul Spilchen, but guilty of the included offence of manslaughter. On count #2, I find Mr. MacKinnon not guilty of attempted murder of Richard Deliva, but guilty of the included offence of aggravated assault.

Procedural issues

[30] This trial proceeded judge alone, with the consent of the Attorney General and Mr. MacKinnon, pursuant to s. 473 of the Criminal Code, and Mr. MacKinnon’s re-election. With the consent of the parties, it proceeded as a hybrid of in-person and remote proceedings.

[31] Because the trial proceeded judge alone, the parties agreed that a number of issues could be dealt with on a blended basis. The “pre-trial” motions involving admissibility of hearsay statements by Mr. Deliva, and the Scopelliti motion evidence were heard with the trial evidence, and both were argued at the close of the Crown’s case. I gave oral rulings on those motions on April 29, 2021. Those oral reasons just gave the bottom-line conclusions, in order that the trial could proceed. My written reasons for those rulings are released separately today (R. v. MacKinnon, 2021 ONSC 6236). In addition, the parties agreed that the NCR evidence and submissions could be heard blended with the rest of the trial. Because the defence bears the burden on the NCR issue, the defence expert evidence on this issue was led during the defence case, and then the Crown expert evidence was led in reply.

General legal principles

[32] In most judgments I write, I begin my discussion of the basic legal principles applicable to a trial with a discussion of the presumption of innocence and the burden of proof. However, in this case, because the issue of criminal responsibility is raised by the defence, there are two different onuses and burdens of proof at play.

[33] On the issue of criminal responsibility, by virtue of s. 16(2) of the Criminal Code, Mr. MacKinnon is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility. Mr. MacKinnon bears the burden of proof on a balance of probabilities on the issue of whether he is not criminally responsible by reason of a mental disorder.

[34] On all other elements of the offences charged, Mr. MacKinnon is presumed innocent, and the Crown bears the burden of proof beyond a reasonable doubt to prove the elements of the offences charged, and to disprove any defences for which an air of reality is established.

[35] Because the onuses and burdens are different for different aspects of the case, I discuss them below in my analysis of each issue.

[36] However, I flag one issue in relation to burdens of proof that applies to all the issues, whoever bears the burden. Burdens of proof apply to the elements of an offence or a defence (in this case, just by way of example, to issues such as the elements of the not criminally responsible defence; whether the Crown has proven the intent required for murder or attempted murder; and whether the Crown has negatived provocation, if there is an air of reality to the defence). Burdens of proof do not apply to individual pieces of evidence.

[37] Further, in considering the evidence on any issue, I must consider the evidence as a whole, and not piecemeal. In my analysis, I will refer to particular aspects of the evidence that have particular relevance to a particular issue or issues. But I always bear in mind that I must consider the evidence as a whole.

[38] This trial requires that I assess the credibility and reliability of various witnesses, including Mr. MacKinnon. Assessing credibility and reliability of evidence requires that a trial judge consider the evidence as a whole, and consider a number of aspects of the evidence. In assessing the credibility and reliability of witnesses, including Mr. MacKinnon, I consider a number of factors, including, but not limited to: the logic and consistency of a witness’ version of events; whether a witness’ evidence is internally and externally consistent; whether the evidence of a witness is consistent or inconsistent with objective evidence (for example, in this case, the video evidence); the consistency or lack of consistency of each witness’ evidence in cross-examination; whether a witness has made statements inconsistent with their evidence in the past on matters of significance; evidence of bias, interest, or a motive to lie on the part of a witness; and the witness’ ability to recall events.

[39] This trial was conducted as a hybrid of in-person and video-conference proceedings. The civilian witnesses testified in person. The expert witnesses, police witnesses, and first responders testified by video conference. The reason for the hybrid proceedings was that the trial was conducted at the height of the third wave of the COVID-19 pandemic in this province. As a public health precaution due to the pandemic, I directed that witnesses who testified in person, including Mr. MacKinnon, wear medical-style masks when they testified (see rulings: R. v. MacKinnon, 2021 ONSC 2749; and oral ruling of April 29, 2021). Counsel, court staff, and I also wore medical-style masks throughout the trial. As will be clear from my analysis below, my factual findings regarding the evidence, in particular in relation to credibility and reliability of evidence, are based on the substance of the evidence, and not on the demeanour of the witnesses. I find that the fact that witnesses who testified in person, including Mr. MacKinnon, wore medical-style masks did not interfere with my ability to assess their evidence. Nor did the fact that some witnesses testified by videoconference affect my ability to assess their evidence.

[40] I want to address the uses of the various videotapes of events at the Working Dog on the night of June 15/16, 2018 (exhibits #20, and 23-26). The videos were entered into evidence on consent of the parties.[^1] I address this issue because the videos were relied on extensively by both parties.

[41] The uses to which the videos were put varied from witness to witness (and in some cases they were used for multiple purposes with a single witness). As a result, the uses I may make of the evidence of various witnesses in relation to the videos differs.

[42] First, the videos of events inside and outside the Working Dog Saloon on the night of June 15/16, 2018 are original evidence which I can use along with the rest of the evidence to assess what happened that night. The parties agree about who the various parties are on the video (for the most-part). Thus, there are not issues of identifying individuals. There are drawbacks in places with the video. For example, in places some things are not as clear as one might hope in the video (as I discuss below, the issue of what is in Mr. MacKinnon’s hand at approximately 2:02:57 to 2:03:00 is one of those places). In places, one cannot see everything that is potentially relevant, because of the camera view (examples of this include the events in the darts area to some extent, and also the events outside the bar, after approximately 2:00 a.m., but before Mr. Spilchen’s group leaves in the taxi, which is not fully captured by the view of the camera). In addition, the absence of sound on the video limits the ability to assess some events, in particular what happened immediately before the stabbings. This is not an exhaustive list. But I take these sorts of limitations into consideration in my assessment of the video evidence in the context of the evidence as a whole. I note as well that the video of the scene taken by police the next morning can also be used as original evidence in relation to the layout of the parking lot, and the location where various pieces of evidence were located. But these issues were not particularly in dispute.

[43] Second, for some witnesses, the videos were used to refresh their memories. In some cases, after being shown part of the video by counsel in an attempt to refresh, witnesses said their memories were refreshed. In other cases, witnesses said they still had no memory of a specific event after seeing a portion of the video.

[44] Third, for some witnesses who were present for the events on the evening of June 15/16, they were able (if they had a memory and if I accept their evidence of having a memory) to explain various things that were happening on the video at particular times. In other words, some witnesses gave evidence which could (if believed) shed light on what is being observed in video, because they were present, and either took part in or observed the event at the time it happened. By way of example, the bartender, Ms Martina Neupauer, gave evidence explaining, based on the videos, various steps she is seen taking on the videos in serving drinks at different points in the evening to various people involved in the events of this trial. I note that in the case of Ms Neupauer, for some of the events she testified about she had a specific recall of an event; for other events she testified about she was testifying based on her practice as a bartender. An example of the latter is that although she did not have a specific memory of every round of Jaegerbombs served to Mr. Spilchen’s group, she could identify on the video the bottle of Jaegermeister by its distinctive shape, and she could tell from the various steps she took of pouring from that bottle and then getting a can that she identified as Red Bull, that she was mixing and serving Jaegerbombs. Similarly, she could identify on the video when she was interacting with a customer using a mobile payment terminal for the customer to pay.

[45] One area that the video was used for that I want to flag with caution and identify that I am not relying on it as evidence was to the extent that witnesses who were not present for a particular event were shown portions of the video and asked if they saw certain things in the video. The best example of this was the evidence of PC Christopher Knight. In cross-examination of PC Knight, the defence played extensive portions of the video evidence of the events of the night of June 15/16, 2018 at the bar to PC Knight. Questions were then asked if PC Knight saw certain things on the video. PC Knight was not at the bar that night. He is in no better position than I am as the trier of fact to assess what can be seen on the video. Thus, I do not treat his evidence of what he saw on the video for the night of June 15/16, 2018, when he was not present, as evidence. I flagged this issue early on during the cross-examination of PC Knight. At that point there was no objection to the cross-examination continuing in that manner, subject to my caveat that I would only use it as pointing things out on the video, and would engage in my own review of what the video actually showed.

[46] Towards the end of the cross-examination of PC Knight, Crown counsel objected to this type of examination (it turned out that the objection was made almost at the end of the cross-examination). I allowed the cross-examination to continue in the same way because it was of assistance in order to draw my attention to the portions of the video that the defence would ultimately argue are significant, but on the basis that I would not rely on PC Knight’s observations of what he saw on the video, but would watch the video myself and form my own view of what it shows (whether I would have allowed this process with a jury is a different question).

[47] I should add that with respect to the investigation the next morning at the scene by police, PC Knight was present for much of the investigation. To the extent he was clarifying things in the video that he observed himself, that can be used in the same manner that I have outlined at para. 44 above. One example of this is him identifying on the video (and photos) where the different security cameras were located. To the extent it may be indistinct on video what an object on a wall is, PC Knight gave evidence that certain objects were the different video cameras which produced the video evidence filed before the court. He can give this evidence because he saw the locations of the cameras in person on June 16, 2018.

[48] Before turning to the evidence, I address one more legal issue which relates to the structure of these reasons. In these reasons I address the NCR defence before turning to the issue of whether the Crown has proven the intent for murder or for attempted murder beyond a reasonable doubt. I structure my reasoning in this way following the approach set out by the Court of Appeal in R. v. David, 2002 CanLII 45049, 61 O.R. (3d) 1 (CA) at paras. 46-56.

[49] Where a trial involves issues of both criminal responsibility, and (if that defence is rejected) levels of intent, a trier of fact should first consider whether or not the NCR defence is proven (i.e., whether the defendant had the capacity for criminal responsibility). If the trier of fact rejects the NCR defence, and thus finds that the presumption in s. 16 of the Criminal Code applies and that the defendant is not suffering from a mental disorder such that he lacks the capacity for criminal responsibility, then they should move to considering what level of intent has been proven. In essence, the logic of the decision in David is that the NCR defence deals with a person’s capacity to form intent. It is logical to deal first with whether the person had the capacity to form intent, before addressing whether they actually formed the requisite intent.

The Evidence

[50] As I have noted, many of the basic facts and chronology of events are either not in dispute at all (and contained in an agreed statement of facts), or not significantly in dispute. The factual issues which are in dispute relate primarily to the events immediately preceding the stabbings and what triggered the stabbings, and Mr. MacKinnon’s state of mind at the time of the stabbings, including the extent of his memory of events surrounding and during the stabbings. I note that I do not list every piece of evidence chapter and verse, but try to focus on the evidence that is important to my fact-finding. Further, for some of the witnesses where there are significant issues of credibility or reliability, I do not summarize every aspect of their cross-examination in this section summarizing the evidence; rather, I address inconsistencies or other issues that I find significant in my assessment of credibility or reliability where I explain my assessment of the credibility and reliability of the evidence of the witness on contested issues.

[51] In this section of my reasons, I will outline the evidence, and make findings on the issues that are either not in dispute, or not significantly in dispute. For the most-part, these are issues that do not involve making findings about the reliability and credibility of Mr. MacKinnon’s evidence.

[52] I make findings in relation to the credibility of Mr. MacKinnon’s evidence in the next section of my reasons (my analysis of the legal issues and evidence). I also make findings in the analysis section of my reasons on issues where there is conflicting evidence and one aspect of the evidence is Mr. MacKinnon’s. I separate out my findings on these sorts of highly contested issues for reasons of clarity. But as I have noted above, I remind myself that I must consider the evidence as a whole.

(i) Mr. MacKinnon’s activities on June 15, 2018 before arriving at the Working Dog

[53] Mr. MacKinnon was 42 years old at the time of events in this trial, and 45 when he testified. He has been in a common law relationship for approximately 24 years with Kelly Peliti. He refers to her as his wife. They do not have children together, but each has one son from a prior relationship (now adults), and each treats the other’s son as their own. Prior to his arrest, Mr. MacKinnon worked in landscaping. His primary work was driving a dump truck with a trailer attached, delivering heavy equipment, trees, and building material for landscaping work, and helping to unload and unpackage it.

[54] On June 15, 2018, Mr. MacKinnon had spent the day working. The company he worked for was located near Canada’s Wonderland, but he delivered to job sites in various locations. He woke that morning at 4:00 a.m., as usual for a workday, and left at 4:30 or 4:45 to drive to the company’s location near Canada’s Wonderland to pick up his truck and trailer. He drove his motorcycle, and brought with him his tank bag, which affixes to the gas tank with magnets, and a black leather backpack.

[55] Mr. MacKinnon worked all day until 8:30 p.m. He testified that he could not recall the specific job sites that day, but that he finished his day by bringing his truck and trailer back to the office near Canada’s Wonderland. He then rode his motorcycle to the home of his mother-in-law. That is a 45 minute to one-hour ride. He arrived around 9:15 or 9:30 p.m. In that time period, he would regularly go to his mother-in-law’s for dinner on Friday evenings after work.

[56] When Mr. MacKinnon arrived at her home, he took in his motorcycle helmet, motorcycle gloves, and the tank bag and backpack. When he arrived, his wife, his mother-in-law, his sister-in-law, his nephew, and Jaelaune Dimitruk were there.

[57] Jaelaune Dimitruk is the son of a close friend of the sister of Mr. MacKinnon’s wife. The relationship is akin to a close family relationship, although not a blood relation. Mr. MacKinnon and Mr. Dimitruk both testified that they had known each other since Mr. Dimitruk was a child. Mr. Dimitruk refers to the son of Mr. MacKinnon’s spouse, Jayden, as his cousin. In June 2018 Mr. Dimitruk was living in the basement apartment in the home of Mr. MacKinnon’s mother in law, and had been living there for three or four years. Mr. MacKinnon’s apartment was about a five-minute walk from there.

[58] Mr. MacKinnon’s wife had brought a change of clothes for him as she usually would do, because his work clothes were dirty. When he arrived at his mother-in-law’s home, he went into the bathroom to change. When he got changed, he transferred everything from the pockets of his work clothes into the clothes that he changed into. The items he transferred from his work clothes into the pocket of the shorts he changed into were his cell phone, his wallet, a set of keys, and his pocketknife.

[59] Mr. MacKinnon testified that he carried a folding knife for his work. He used it for tasks such as cutting banding and shrink wrap off of interlocking bricks he delivered as part of his work, or cutting burlap off the root ball of trees he delivered. Mr. MacKinnon testified that the knife he used for work had a 3” blade and a black handle. When the knife was folded closed, it was about 3” long. There was a locking mechanism on the back of the handle. Once the blade was open, one had to press the locking mechanism to fold it closed. It had two “nipples” near the end of the blade where it folded. One could open the knife by pushing with one’s thumb on the nipple to push the blade up. Mr. MacKinnon testified that the knife did not have any springs. Mr. MacKinnon testified that he did not recall the brand of the knife. He had purchased it at the Pickering Flea Market. Mr. MacKinnon’s knife was not recovered after the stabbings. Exhibits #41a and 41b depict knives that Mr. MacKinnon testified have similar features to his folding knife.

[60] Mr. MacKinnon testified that after he got changed, he had dinner, talked to the other family members who were there, and had one Bud Light beer.

[61] Mr. MacKinnon testified that that evening Mr. Dimitruk had asked him a few times if he wanted to go to the Working Dog. Mr. MacKinnon said, sure. I pause to note that Mr. Dimitruk had surgery to remove a portion of the right temporal lobe of his brain some years prior to the events at issue in this case. This was done to control epileptic seizures. Mr. MacKinnon was aware of this surgery. He testified that it caused Mr. Dimitruk to have problems with his memory. Also, when Mr. Dimitruk got a little drunk, he would act “goofy”.

[62] Mr. MacKinnon testified that he believed he texted Mr. Dimitruk while he was at his mother-in-law’s home to follow up about whether they were going to the Working Dog. He believed that Mr. Dimitruk had gone for a smoke, or downstairs to change his clothes. Mr. MacKinnon texted to see if they were still going to the Working Dog because his wife was getting ready to leave, and he wanted to either leave with her, or go to the bar with Mr. Dimitruk.

[63] Mr. MacKinnon testified that he had been going to the Working Dog since around 1999 (at that time it operated under a different name). How often he went there varied – sometimes twice a month; sometimes he would not go for eight to twelve months. He would usually go there with family for a meal and drinks. He would usually go earlier in the evening, between four and eight p.m.

[64] Mr. MacKinnon testified that he and Mr. Dimitruk left his mother-in-law’s home after 11:00 p.m. that night. They walked to the Working Dog, which was about a five-minute walk.

[65] Mr. Dimitruk was 29 years old when he testified, and 26 years old at the time of the events in this trial. He works in construction and as a labourer, and did so in 2018. Mr. Dimitruk testified that Mr. MacKinnon would visit at the house where Mr. Dimitruk lived, upstairs where Mr. MacKinnon’s mother in law lived. Mr. Dimitruk had a good relationship leading up to June 15, 2018. He would speak to him in person on average once a week at the home of Mr. MacKinnon’s mother in law, and they had each other’s phone numbers on their phones. Sometimes they would go to restaurants and bars. Mr. Dimitruk had not spoken to Mr. MacKinnon since his arrest. Mr. Dimitruk testified that he had wanted to see Mr. MacKinnon, but had not been able to (I presume that he had been told not to because he was to be a witness, but this was not expressly addressed in the evidence).

[66] Mr. Dimitruk testified that as a result of the brain surgery he had had for epileptic seizures, he has difficulties with his memory. As I explain further below in my analysis, I find that these memory difficulties due to the surgery, combined with alcohol consumption had a significant impact on Mr. Dimitruk’s memory of the events of later in the evening on June 15/16, 2018. No party took issue with the genuineness of Mr. Dimitruk’s lack of memory of the stabbing and the events immediately preceding the stabbing.

[67] Mr. Dimitruk generally confirmed Mr. MacKinnon’s evidence about events at the residence. Mr. Dimitruk came home from work, and drank some beer in his apartment by himself. He could not remember how many beers he drank at the residence. He testified that on a Friday night, it would not be unusual for him to drink 12 beers, and also some vodka or tequila.

[68] Then he and Mr. MacKinnon went to the Working Dog. Mr. Dimitruk testified that in June 2018, he would go to the Working Dog two or three times a month. He would often go there with friends, but he had also been there previously with Mr. MacKinnon. Mr. Dimitruk could not recall if he had phoned Mr. MacKinnon to suggest going to the bar, or if Mr. MacKinnon was already at the house.

[69] Mr. Dimitruk initially testified that they arrived at the bar around 10:00 p.m., but later after having his memory refreshed with the bar security videos agreed it was later. Mr. Dimitruk testified that they sat at the bar. He was drinking Budweiser tall cans, and also tequila shots and a vodka and orange juice. Mr. MacKinnon’s demeanour seemed fine, happy. They were sitting at the bar drinking and talking. He could not remember what they were talking about. He testified that the bar was pretty busy when they got there, but that there were fewer people later in the night. They did not have any issues with anyone in the bar that night. Nothing happened inside the bar that stuck out in his mind.

[70] Photos taken by police at the residence of Mr. MacKinnon’s mother-in-law show his backpack, motorcycle helmet, and motorcycle bags in the dining room. The backpack has an empty Tupperware container in it. Mr. MacKinnon identified various items in the photos during his evidence.

[71] Mr. MacKinnon’s and Mr. Dimitruk’s cell phone records show that Mr. MacKinnon’s cell phone placed a call to Mr. Dimitruk’s cell phone at 11:18:20 p.m. on June 15. The duration of the call was 35 seconds. They also show that Mr. Dimitruk texted Mr. MacKinnon at 11:20 p.m., and then Mr. MacKinnon texted Mr. Dimitruk back. As noted above, Mr. MacKinnon testified that he believed he had texted Mr. Dimitruk while they were at his mother-in-law’s home to see if they were still going to the bar, while Mr. Dimitruk was in another part of the house. But Mr. MacKinnon said he did not have the best recollection of this. Mr. Dimitruk was shown these entries in the phone records. He had no memory of the call or the texts, but said that he was pretty sure Mr. MacKinnon was at the house, and it was possible that he called Mr. MacKinnon to meet up.

[72] The Working Dog Saloon is a short walk from the home of Mr. MacKinnon’s mother in law. PC Knight testified that the distance was about two blocks. It is also visible on the map in exhibit #12 that it is a relatively short distance; although it looks more like three blocks. Mr. MacKinnon testified that it was a five minute walk from his mother-in-law’s home to the Working Dog.

[73] I accept Mr. MacKinnon’s evidence about the events of June 15, 2018 before he arrived at the Working Dog Saloon. It is consistent with Mr. Dimitruk’s evidence. Further, Crown counsel did not significantly contest Mr. MacKinnon’s evidence on the events before he arrived at the bar. There was some cross-examination about the records of texts and phone calls between Mr. MacKinnon and Mr. Dimitruk before they left for the bar. In my view, the records of a call and a text between the phones of Mr. MacKinnon and Mr. Dimitruk at 11:18 and 11:20 p.m. are consistent with Mr. MacKinnon’s evidence on this issue. Further, I find Mr. MacKinnon’s explanation that he texted Mr. Dimitruk while he was at his mother-in-law’s and Mr. Dimitruk was in another part of the house, to see if they were still going to the bar, entirely believable. These days, when many people carry their cell phones with them 24/7, it is common for people to phone or text to communicate with people who are relatively nearby. In this case, it saved having to go down to Mr. Dimitruk’s separate basement apartment in the house.

(ii) The Activities of Paul Spilchen, Richard Deliva, and Gordon Forgues before arriving at the Working Dog

[74] Richard Deliva was 28 years old when he testified, and 25 years old at the time of the events in this trial. He lived in Scarborough in 2018. At the time of the trial he was facing an outstanding charge of sexual assault, set for trial in the fall of 2021. He works in construction, as a steel stud framer and drywall installer. He had been friends with Mr. Spilchen for 8 or 9 years. He met Mr. Spilchen through Mr. Forgues. He was also friends with Mr. Forgues, who he had met when he was in high school, through another friend. He described both Mr. Spilchen and Mr. Forgues as “one of my best friends”.

[75] Gordon Forgues was 28 years old when he testified, and 25 years old at the time of events in this trial. He works in construction as a drywaller. In the spring of 2018, he lived in an apartment in Scarborough with his girlfriend. He was very good friends with Paul Spilchen. They had met through Mr. Forgues’ older brother, and had known each other for about 15 years. Mr. Forgues was to be the best man at Mr. Spilchen’s upcoming wedding. Mr. Forgues was also friends with Richard Deliva. He could not recall how they met, but estimated that he had known him for 15 years. Mr. Deliva and Mr. Spilchen were also friends. Mr. Deliva was to attend Mr. Spilchen’s wedding, but was not in the wedding party. In the spring of 2018, Mr. Spilchen and Mr. Deliva also lived in Scarborough.

[76] When asked near the outset of his evidence if he had an independent recollection of the events of June 15/16, 2018, Mr. Deliva responded, “Vaguely; a little bit”. He testified that on June 15, 2018, he went home after work. His workday normally ended at 5:00 p.m. He did some gaming on PlayStation. He received a text message from Mr. Forgues and Mr. Spilchen while he was gaming. They were asking if he wanted to come over and help with some painting at Mr. Forgues’ apartment. He could not remember the exact time, but said it was early evening, 6:00 or 7:00 p.m. He agreed to go over and help.

[77] Mr. Deliva testified that Mr. Forgues’ home was about a 10-minute drive from his place. Mr. Deliva went over there about an hour after receiving the text. He took a TTC bus to get there. He testified that he helped with the painting, and while they were painting, they drank Molson Canadian beer in tall cans. He said he had one or two beers at Mr. Forgues’ apartment. He said he was there for an hour, or a bit longer.

[78] In cross-examination, Mr. Deliva denied the suggestion that he was trying in his evidence to minimize the amount of alcohol he had to drink that night. He again said he had had one or two beers at Mr. Forgues’ apartment, and agreed that he had a clear memory of that. Counsel then showed him a portion of his evidence from the preliminary inquiry where he had testified that at Mr. Forgues’ apartment he had had two to three beers, and Mr. Deliva agreed that he had given that answer. Mr. Deliva said he was not trying to minimize the amount he had to drink when he said in examination in chief that he had one or two beers at Mr. Forgues’ apartment. He said it was just an honest mistake.

[79] Mr. Deliva testified that while they were painting, they decided to go out. It was not unusual for the three of them to go out together on a Friday night. Mr. Deliva testified that he did not consume any drugs that night. He also testified that he did not have any tools related to his work on him that night when they went out. Nor did he have any weapons or knives with him that night.

[80] Mr. Forgues testified that on the evening of June 15, 2018, the three of them met up at Mr. Forgues apartment. He and Mr. Spilchen had planned ahead of time for Mr. Spilchen to come over and help Mr. Forgues paint his bedroom and living room. Mr. Spilchen came over around 5:00 or 6:00 p.m. Mr. Deliva came over about an hour later.

[81] Mr. Forgues testified that while they were painting, all three men drank beer. Mr. Forgues could not recall how long they were painting, but they finished painting both rooms. Mr. Forgues could not recall specifically what type of beer they were drinking, and whether it was bottles or cans. He testified that in that time period he would usually drink Coors Lite or Miller Lite in regular size cans. Mr. Forgues could not specifically remember how many beers he had to drink. He said not more than 12, and probably it was six or seven. He did not know how many beers Mr. Spilchen and Mr. Deliva had while they were painting. They did not consume any hard liquor while they were painting, or any drugs. He did not consume any drugs all night, and did not see Mr. Spilchen or Mr. Deliva consume any drugs all night. Mr. Forgues agreed in cross-examination that by the time they left his apartment to go to the first bar, although he was not falling-down drunk, he was not sober.

[82] Mr. Forgues testified that after they finished painting, they went to a number of bars. The bars were all places they had been before, and were essentially neighborhood bar and grills. When they left for the bars, he did not have any tools from painting or any weapons on him. Nor, to his knowledge, did Mr. Spilchen or Mr. Deliva.

[83] The first bar they went to was Smiling Jack’s. Mr. Deliva testified that they walked there, and that it was a 10-minute walk from Mr. Forgues’ apartment. Mr. Forgues testified that they took a five-minute cab ride to Smiling Jack’s, which is two blocks from his apartment.

[84] Mr. Deliva testified that they did not go into Smiling Jack’s. He said they were told by a security guard that they could not go in, but he did not know why. He said there were no issues with the security guard, or arguments, or problems. In cross-examination, Mr. Deliva agreed that he had been to Smiling Jack’s a few times previously. He agreed that he believed that Mr. Spilchen’s mother worked there at one point, but he was not sure if she did in June 2018. He agreed that on that night, the bouncer would not let them in to Smiling Jack’s. He said he had no idea why. He said it was not regular for him to be refused entrance to a bar. He denied that they were drunk or rowdy, or caused some trouble that led to them not being let in.

[85] Mr. Forgues testified that they did not go into Smiling Jack’s that night, and so did not have any drinks there. In examination in chief, he testified that he did not remember why they did not go into Smiling Jack’s. He said there was not a fight, or argument, or anything unfriendly that led to them not going into Smiling Jack’s. In cross-examination, Mr. Forgues denied any recollection of a bouncer not letting them into Smiling Jack’s.

[86] The second bar they went to was Kornerstone. They went in and had drinks. Mr. Deliva testified that they went in and ordered beer or whatever. He said in examination in chief that they had a couple of drinks, danced a little, hung out, and talked. He said in examination in chief that he had one or two beers at Kornerstone. He said it was possible that he drank something else other than beer, but that he did not now remember. He said they then decided to go to another bar. There was no particular reason they left; they just wanted a different scene.

[87] In cross-examination, Mr. Deliva maintained that he had one or two beers at Kornerstone. He was asked if he had anything else. He said, “maybe a shot, maybe not – not that I remember everything I drank at that exact hour, at that exact location”.

[88] Mr. Forgues testified that when they got to Kornerstone, they knew the waitress who was working there. He could not recall anything remarkable about their time at Kornerstones. He initially said that he could not remember how much they had to drink there, or what they were drinking. Mr. Forgues testified that there was no particular reason they moved on to the next bar. It was not unusual for them to attend multiple bars in a night. They were not involved in any fights or arguments at Kornerstone.

[89] The third bar they went to was the Fossil and Haggis. Mr. Deliva testified that they took a taxi there, and it was a 15- or 20-minute cab ride. He said they went to the bar and ordered a beer (which I understood to mean one beer each). He said he drank Molson Canadian. He could not recall what he ordered, but he said he always drinks Molson Canadian. He said in examination in chief that he may have had a shot there, but he could not recall of what. According to Mr. Deliva there were no disagreements with anyone at the Fossil and Haggis. Mr. Deliva testified that they played a couple of games of pool there. He estimated that they were there for one and a half to two hours. After they finished playing pool, they decided they wanted another scene. There were no issues at the Fossil and Haggis that caused them to leave.

[90] In cross-examination, Mr. Deliva initially said he had one or two beers there, and added maybe also a shot. He was then shown a portion of his evidence from the preliminary inquiry where he had said that he had two to three beers at the Fossil and Haggis. Mr. Deliva agreed that he had said that at the preliminary inquiry. When asked if it was true, he said he did not know if he had two or three beers, but that he knew he had one, maybe two. When it was put to him that this was the second time he where he had said he had more to drink at the preliminary inquiry than his trial testimony, he again denied that he was trying to minimize the amount he had to drink that night.

[91] Mr. Forgues testified that at the Fossil and Haggis it was still Mr. Forgues, Mr. Spilchen, and Mr. Deliva in the group. They ordered drinks. Mr. Forgues initially said that he did not remember what they were drinking, or how many drinks they had there. Mr. Forgues testified that he could not recall any particular reason they moved on to the next bar. There were no fights or arguments at the Fossil and Haggis.

[92] The fourth bar they went to was the Stone Cottage. Mr. Deliva testified that they took a taxi there. It was a 15-20 minute cab ride. He testified that he had one or two beers there. He said he could not recall drinking anything else. He said they enjoyed their evening and drank their beer. There were no issues or problems at the Stone Cottage. They stayed there for probably one hour. Then they decided to go to one more bar.

[93] When asked in cross-examination how much he had to drink at the Stone Cottage, Mr. Deliva said “one two beers, maybe, maybe more”. He was then asked why, when he had said in examination in chief that they (each) had one or two beers at the Stone Cottage, he was now saying “maybe more”. Mr. Deliva replied that it was because his previous statement (which he had not yet been shown) was saying that he possibly had two or three beers. He was then shown a portion of his evidence from the preliminary inquiry where he said that at the Stone Cottage “we . . . had a couple of beers, had a couple of shots, maybe”. Mr. Deliva’s responded that he did not drink more than one shot at a time, so he was probably referring to buying a round for “the boys” and himself. Counsel then asked if he was saying that two beers and two shots were split between the three of them. Mr. Deliva responded that no, he meant that they got three beers and three shots that they split (i.e., one beer and one shot per person). When defence counsel suggested to him that the ordinary meaning of his answer from the preliminary inquiry is that each of them had a couple of beers and a couple of shots, Mr. Deliva disagreed. Ultimately, he said he could not now remember if he had any shots at the Stone Cottage. He was then asked if he had a memory of drinking shots anywhere during the night. He responded that he did not remember where, but that he could “almost guarantee” that “we had a few” throughout the night. When asked if this meant a few each, he agreed it meant a few each (throughout the night).

[94] Mr. Forgues testified that it was still the three men. They took a taxi. Mr. Forgues could not recall what time they arrived at the Stone Cottage. Mr. Forgues testified that at the Stone Cottage they spoke to the bouncer, who said it wasn’t great inside, and they should try the Working Dog. He initially said he could not recall if they ordered drinks at the Stone Cottage. After reviewing his statement to police, provided June 16, 2018, to refresh his memory, Mr. Forgues said they did order drinks at the Stone Cottage, but that he could not remember what type of drinks, or how many. He then said it was the bartender, inside the bar, who told them to check out the Working Dog Saloon. Mr. Forgues testified that they left the Stone Cottage because it was dead inside. There were no fights or arguments that caused them to leave.

[95] In cross-examination, Mr. Forgues initially repeated his answer from examination in chief that he did not recall how much they drank at each bar. However, in cross-examination, he adopted as true what he told the police on June 16, 2018, which was that by the time they got to the Working Dog, they had had “quite a bit” to drink, which he quantified as probably two rounds of shots and two beers at each bar they went to prior to the Working Dog, plus a few beers while painting. He agreed that by the time they got to the Working Dog he was drunk.

[96] Then they went to the Working Dog Saloon (which I discuss in more detail below).

[97] The defence urged me to find that the reason that Mr. Spilchen’s group did not go into Smiling Jack’s was because they were denied admission because of something about their behaviour (for example they were too drunk or being obnoxious). I do not make any finding of fact about the reason they did not go into Smiling Jack’s. Mr. Forgues and Mr. Deliva had no memory of why. In the absence of other evidence, it is simply too speculative for me to make any finding about why they did not go in.

(iii) Events inside the Working Dog

[98] It is an agreed fact that Mr. MacKinnon and Mr. Dimitruk arrived at the Working Dog at approximately 11:32 p.m. This is also visible on the security video from the bar (exhibit #20). I pause to note that there is an agreement between the parties set out at para. 11 of exhibit #1 about the differences between the time stamps on various videos and the real time. The most important of these is in relation to the videos from the bar’s security system, since those videos were of central importance in this trial. The time stamp on the bar’s security videos (in exhibits #20, and 23-26) is approximately four minutes ahead of real time. Thus, for example, on the video the arrival of Mr. MacKinnon and Mr. Dimitruk at the bar shows as time stamp 23:37:45 on exhibit #20, but it is agreed that in real time it was approximately 11:32 a.m. For the portions of exhibit #20 that come from other security cameras (such as other businesses near the Working Dog, or the gas station with the ATM), the time differences are different, and are set out at paragraph 11 of exhibit #1.

[99] Mr. MacKinnon and Mr. Dimitruk spent the evening seated at the bar. They can be seen on the video having drinks and talking to each other, as well as to the bartender (Ms Martina Neupauer) and the bar owner. In addition, at one point, Mr. MacKinnon speaks to Bailey Honsinger when she is at the bar. Mr. MacKinnon sits at the bar the entire night, except to get up to use the washroom (PC Knight and Ms Neupauer gave evidence about the location of the washrooms, from which I infer that is where Mr. MacKinnon was going when he was away from the bar). Mr. Dimitruk at times gets up and speaks to other people at the bar, including Mr. Deliva and Mr. Forgues. I find that all of these interactions look like ordinary interactions, and do not appear aggressive in any way. During times that Mr. Dimitruk is away from the bar, Mr. MacKinnon watches TV, and/or looks at something on his cellphone, and continues to drink his beer.

[100] The bartender, Ms Neupauer, testified about the number of drinks she served to various parties and her observations about them. I find that she was a credible witness. She was consistent in her evidence. She was sober during the evening. And she has no interest to favour one side or the other. She has worked as a bartender for 20 years, both in Canada and in Slovakia. She was the bartender at the Working Dog for five years, ending in 2020.

[101] Ms Neupauer described the Working Dog as a family restaurant, which serves food and drinks. The clientele is mostly regulars, according to Ms Neupauer and Eric Carter. On weekends, including that night, there was a DJ who arrived about 9:30 p.m., and started playing music at 10:00 p.m. and continued until 1:30 a.m. Last call is at 1:30 a.m., and closing is at 2:00 a.m. On the evening of June 15/16, 2018, she worked a shift from 5:00 p.m. to closing at 2:00 a.m. According to Ms Neupauer, Mr. Carter, and Ms Honsinger the atmosphere in the bar that night was a normal Friday night. Not too busy.

[102] Ms Neupauer testified that she served Mr. MacKinnon and Mr. Dimitruk that night when they were sitting at the bar. She learned Mr. MacKinnon’s name was “Mike” when he started a tab. She had seen him once or twice at the bar before that night. She had never had any problems with Mr. MacKinnon before at the bar, and did not have any problems with him that night. Her evidence was consistent with the security video, that Mr. MacKinnon stayed at the same bar stool all evening. She had conversation with both Mr. MacKinnon and Mr. Dimitruk during the evening. It was friendly. Mr. MacKinnon engaged appropriately with her, and appeared calm and relaxed. She had no concerns about his behaviour throughout the night. I accept her evidence. I note that it is consistent with what can be observed of Mr. MacKinnon’s behaviour inside the bar on the video.

[103] Mr. MacKinnon testified about events at the bar, and in general his evidence is consistent with the evidence of Ms Neupauer, and the video evidence (with the exception of what was on the television – which, as I explain below, I do not find significant). Mr. MacKinnon testified that inside the bar he felt relaxed and good. He had worked a long shift, and did not have to work the next day, and he was having a drink with a family member (Mr. Dimitruk).

[104] He testified that it was loud in the bar, because a DJ was playing music. He had to raise his voice to speak to Mr. Dimitruk at the bar. The music was turned off later, before last call. Mr. MacKinnon testified that he had no verbal arguments with anyone inside the bar, and no physical interactions or shoving with anyone inside the bar. Nor did he see anyone else get into any verbal or physical interactions inside the bar.

[105] Bailey Honsinger, a regular at the Working Dog, was at the bar that night with some friends. The videos from the bar show her speaking to Mr. MacKinnon for a few minutes, from approximately time stamp 00:30:40 to 00:32:09. I find that the interaction looks friendly. Later, shortly after 01:55:56 as Mr. MacKinnon is walking back over to the bar from the entrance, he and Ms Honsinger pass each other and exchange a high five. When Ms Honsinger testified, she did not remember either of these interactions with Mr. MacKinnon, even after being shown portions of the video in an attempt to refresh her memory (but she agreed it was her on the video).

[106] Based on Ms Neupauer’s evidence, which is confirmed by the payment records from the bar, and is visible on the video from the bar security cameras, I find that Mr. MacKinnon consumed five tall boy Bud Light beers, and Mr. Dimitruk consumed five tall boy Bud beers, two shots of tequila (one ounce each), and a vodka and orange juice during the time they were at the bar (one other tall boy Bud was consumed by Mr. Williams). The tall cans were 473 mL each. The Bud Light is 4% alcohol by volume. The Bud is 5% alcohol by volume (I based these numbers on the photos of the cans which were entered in evidence through DC Steven Head who led the investigation at the scene). Mr. MacKinnon testified that he had five Bud Light beers at the bar, and one at his mother-in-law’s home. He testified that he had his first drink around 10:00 p.m., and finished his last drink around 2:00 a.m.

[107] The timing of the drinks ordered by Mr. MacKinnon and Mr. Dimitruk at the bar is set out in the agreed statement of facts. The exact timing of the drinks is not significant, other than showing that between approximately 11:32 p.m. and 2:00 a.m., they consumed the drinks set out in the preceding paragraph.

[108] Mr. Spilchen, Mr. Deliva, and Mr. Forgues arrived at the bar at approximately 12:31 a.m. (now the early morning hours of July 16, 2018) (visible on the security video at time stamp 00:35:12).

[109] Based on the security video, they are more mobile within the bar than Mr. MacKinnon and Mr. Dimitruk. At times they are at the north end of the bar (i.e., the serving bar), which is just around the corner of the bar from where Mr. MacKinnon and Mr. Dimitruk were seated. At times they are near a long table several feet behind where Mr. MacKinnon and Mr. Dimitruk are seated. At times they are at the bar, just down from where Mr. Dimitruk and Mr. MacKinnon are seated. At times they are over by the DJ. At times they are up in the raised darts area. In addition, they appear to go in and out of the bar at times, I presume in order to smoke outside (Mr. Deliva testified that he was a smoker at that time). Mr. Spilchen and Mr. Deliva can also be seen speaking to various other people besides the group they came to the bar with over the course of their time in the Working Dog.

[110] Ms Neupauer testified that she had never seen Mr. Spilchen and Mr. Deliva before that night (she did not know their names, but identified who she was talking about in the videos from the bar). Ms Neupauer testified that Mr. Spilchen was not rude or aggressive or threatening to her or to anyone in her presence that night. She believed that she spoke to Mr. Spilchen just once. This was at the bar. He noticed a bruise on her arm and asked about it. She spoke to Mr. Deliva when he ordered drinks. He seemed like he was having fun. He was talking to everybody. He was not rude or aggressive to her, but was demanding in the manner he ordered drinks from her, but not in a way that was mean. She did not see Mr. Deliva be rude, aggressive, or threatening to anyone else.

[111] Mr. Forgues testified that they took a taxi to the Working Dog, that they arrived sometime after midnight, and stayed until last call. They went in and ordered drinks. He did not remember if they ordered any further drinks after the first round. He initially said that he did not recall what they were drinking at the Working Dog. He then said (in response to a leading question) that they were drinking beer. He could not remember if they were drinking anything else besides beer.

[112] Ms Honsinger also testified about seeing Mr. Spilchen and Mr. Deliva inside the Working Dog that night (she described them based on their clothing and general appearance – there is no dispute that it was Mr. Spilchen and Mr. Deliva she was talking about). She had never seen them at the bar before. She noticed that they were dressed almost the same, and she thought that was funny. Nothing apart from them being dressed similarly drew her attention to them. She recalled speaking to one of them at one point towards the back of the bar. She could not remember what the conversation was about, other than that she brought up the fact that they looked the same, and was joking about it. It was a fun conversation.

[113] Based on the video evidence and the evidence of Ms Neupauer, I find that Mr. Spilchen’s group were drinking Jaegerbomb shots and bottles of Coors Lite beer (375 mL) at the Working Dog. A Jaegerbomb is a shot made up of Jaegermeister liquor (one ounce) dropped into a Red Bull energy drink (⅓ to ½ of a small can, about two ounces). I accept Ms Neupauer’s evidence, and based on a photo of the bottle that she identified, I find that Jaegermeister has 35 percent alcohol by volume, and that each Jaegerbomb contains one ounce of Jaegermeister. I find based on the video and Ms Neupauer’s evidence that during the time they were at the Working Dog, Mr. Spilchen consumed five Jaegerbombs, and Mr. Deliva and Mr. Forgues consumed four Jaegerbombs each. The men had four rounds of shots of Jaegerbombs together – the last round of shots at approximately 01:28:28 (that is when Ms Neupauer begins serving the shots, but the men drink them at approximately 01:29:25 time stamp). In addition, Mr. Spilchen drank one Jaegerbomb by himself at approximately time stamp 01:09:23-01:11:52 on the video. In addition, each of them purchased or had purchased for them several bottles of beer during the time they were at the Working Dog, and can be seen drinking some of that beer. Ms Neupauer serves them a last round of beers visible on the videos at time stamp 01:46:05.

[114] Ms Neupauer testified that Mr. Spilchen’s group did not finish all the beers they ordered. She testified that they kept leaving unfinished beers on the bar when they would go outside to smoke, and later order new ones. I accept this evidence. In considering their level of intoxication, I take into account that they did not finish all of the beer they ordered. But I find that the video is clear that they did fully consume each Jaegerbomb that was ordered, because they were shots, and were consumed all at once when they were ordered.

[115] Mr. Deliva testified that when they got to the Working Dog, they went to the bar to order a drink. He said the atmosphere was the same as the other bars, lively, with music in the background. He said the music in their group was “phenomenally good”. After they ordered drinks, they found a place to sit and have their drinks. They were talking, laughing, and joking. He did not recall seeing anyone they knew at the bar. He remembered seeing Mr. Spilchen and Mr. Forgues speaking to someone at some point, but he did not know if they knew the person they were speaking to.

[116] Mr. Deliva was asked in examination in chief how many drinks he had at the Working Dog. He responded: “One, maybe two; maybe a shot included in that.” In cross-examination, he said he did not know what he had to drink at the Working Dog, but maybe one or two beers. It was suggested to him that he knew perfectly well that he drank more than that at the Working Dog. Mr. Deliva disagreed with this suggestion. When asked about the videos from the bar that showed he had four Jaegerbombs at the Working Dog, he said he had no memory of that.

[117] In cross-examination, Mr. Forgues agreed that he had a bunch of drinks at the Working Dog, but he could not remember how many. He could not remember having any Jaegerbombs.

[118] Apart from the time in the raised darts area, which I will discuss separately, on my viewing of the video, there is nothing unusual or aggressive about the actions of Mr. Spilchen, Mr. Deliva, or Mr. Forgues during the time they are inside the Working Dog. They drink their drinks, move around to different parts of the bar, sometimes dance, and speak to each other and to other patrons at the bar.

[119] However, I do find from the video, in the context of the other evidence of intoxication of Mr. Spilchen and Mr. Deliva, that their body movements are consistent with some level of intoxication. This is difficult to describe. They are not stumbling or staggering. But there is a looseness to their movements that is consistent with intoxication. Were the video standing alone, without the other evidence, I might not draw the conclusion of intoxication from their movements. But in the context of the other evidence of intoxication, the video is consistent with that evidence.

(iv) Events in the darts area between Mr. Spilchen and Mr. Eric Carter

[120] At the north end of the Working Dog Saloon is an area raised up a couple steps where there are some tables and chairs at one end, and two darts boards on the wall at the opposite end. Between approximately 1:12 a.m. on the video time stamps and 1:28 a.m. (approximately 1:08 to 1:24 a.m. real time) Mr. Spilchen, Mr. Deliva, and Mr. Forgues were up in this part of the bar. In addition, Eric Carter, a regular at the bar, and some of his friends were there. During that time there was an interaction between Mr. Carter and Mr. Spilchen that originally was included in the defence Scopelliti application. It is not suggested that Mr. MacKinnon saw whatever happened between Mr. Spilchen and Mr. Carter in the darts area.[^2] Rather, the defence seeks to use the evidence either as evidence of Mr. Spilchen’s level of intoxication, state, and demeanour at a time proximate to the stabbing (i.e., ending approximately 40 minutes prior to the stabbing), and/or through the lens of a disposition for starting confrontations. I discuss the use that I make of this evidence below in my analysis. But I will summarize the evidence and make factual findings here.

[121] Mr. Carter testified that he drank between five and 10 beers at the BBQ at Bailey Honsinger’s home before coming to the Working Dog. His group of friends, including Ms Honsinger, arrived at the bar between 10:00 and 11:00 p.m. Mr. Carter estimated that he drank eight bottles of Bud Light at the bar.

[122] Mr. Carter testified about an interaction he had with Paul Spilchen that night at the Working Dog in the darts area. He had never met Paul Spilchen before that night (nor had he met Mr. Deliva or Mr. Forgues). However, Mr. Carter was friends with Josh Spilchen from high school, where they played on sports teams together (as I will explain, Mr. Carter learned that Paul Spilchen and Josh Spilchen were cousins in the course of his interaction with Paul Spilchen).

[123] Mr. Carter testified as follows about events in the darts area that evening. Mr. Carter was in the darts area. Paul Spilchen came over and was talking about how good he was at darts. Mr. Carter’s friend John Beezer proposed a bet, which was agreed to, to Paul Spilchen to see who could hit a bullseye first. The bet was for $20. Mr. Carter was not part of the bet, but was present when the bet was made. Mr. Spilchen and Mr. Beezer threw darts, and Mr. Spilchen hit a bullseye first, on his first throw.

[124] Mr. Carter testified that Mr. Spilchen was “overly braggy” when he won the bet, and was bragging about how good he was. Mr. Carter told Mr. Spilchen to relax, and calm down. Mr. Carter testified that in reaction to this, Mr. Spilchen was “really fired-up, overly obnoxious, kinda, in that way.” In examination in chief, Mr. Carter said that “disagreement” was a fair word to characterize this interaction he had with Mr. Spilchen in the darts area. He testified that he was never concerned for his safety during the disagreement, that it was not a physical altercation, that Mr. Spilchen did not do anything violent towards him, and did not threaten him, nor did Mr. Spilchen say anything about having or using a weapon. In examination in chief, Mr. Carter said he did not know if Mr. Beezer ultimately paid Mr. Spilchen for the bet. But in cross-examination he agreed that Paul Spilchen did not want to take Mr. Beezer’s money. He also agreed in cross-examination that Mr. Spilchen being fired-up and obnoxious after winning the bet was a little surprising to him because it came out of nowhere.

[125] Mr Carter then noticed that Mr. Spilchen had a tattoo on one of his forearms that said “Spilchen” (a photo of this tattoo was entered in evidence. It would have been quite prominent and visible if a person looked at Mr. Spilchen’s right forearm). They then talked about Mr. Spilchen’s last name. Mr. Carter asked Paul Spilchen if he knew Josh Spilchen. Paul said Josh was his cousin. Mr. Carter then told Paul Spilchen that Josh was a friend of his. This was all right after the disagreement. The disagreement was over by then. It “just faded” when they figured out the connection to Josh Spilchen. Paul Spilchen then seemed more calm.

[126] In cross-examination, Mr. Carter agreed with the characterization that he had defused the situation with Paul Spilchen by talking about Josh. He agreed that Paul did not believe him that he knew Josh, and so Paul called Josh. He agreed that it was after the telephone call to Josh that the conflict petered out. Mr. Carter also agreed in cross-examination that it seemed like Mr. Spilchen and his friends were looking for a problem, or looking for a fight; although in examination in chief he had said that Mr. Spilchen’s two friends were not involved in the disagreement. In re-examination, Mr. Carter was asked what about Paul Spilchen and his friends made him think they were looking for a fight. He said it was just from the “vibe” they had at the beginning. He could not describe any specific observations that made him believe that.

[127] Mr. Carter testified that the phone conversation with Josh Spilchen took place inside the bar, around the darts area. He could not recall whose phone was used for that call. Mr. Carter spoke to Josh, and Mr. Carter saw Paul Spilchen speak to Josh. Mr. Carter could not recall the time of that telephone conversation. It was maybe 10 minutes after he saw Mr. Spilchen’s tattoo.

[128] Mr. Carter estimated that the disagreement lasted five or 10 minutes. They were still in the darts area when it ended. Mr. Carter bought Mr. Spilchen and his friends a drink at the end of the disagreement, to “kind of make up”. Everything was calm and settled at that point. This was after he had seen Mr. Spilchen’s tattoo and figured out the connection to Josh Spilchen. This was probably a little bit after the telephone conversation with Josh Spilchen.

[129] Mr. Carter did not recall if Ms Honsinger was present when he had the disagreement with Mr. Spilchen. He did not recall Ms Honsinger separating them.

[130] Josh Spilchen did not testify viva voce at trial. The parties agreed that the transcript of his statement to police given on June 17, 2018, could be admitted as his trial evidence (to the extent it contained admissible evidence. For example, hearsay statements in it are not admissible). I note that Josh Spilchen was given a standard caution about the legal consequences of not being truthful, was placed under oath prior to giving the police statement, and it was videotaped.

[131] Josh Spilchen said that he was hanging around out back of his home when he received a telephone call from Paul Spilchen at 1:34 a.m. on June 16. Paul sounded very rowdy. Josh said he could hear music playing in the background. He said he knows how Paul sounds when he speaks, and he sounded pretty drunk on the phone. Paul was not slurring, but Josh said that Paul was usually more outgoing, outspoken, and confident when he was drinking (I find that in making this comment Josh was speaking about that night on the phone, and in general. I find this because he was responding to a question from the officer about whether Paul Spilchen was slurring his words). I do not include hearsay in this summary for the truth of its contents, but I include a portion just to identify that it is the same call that Mr. Carter spoke about. Paul told Josh that he was at a bar and there was someone there who Josh knew, a kid he went to school with named Eric. There was further conversation which is hearsay and I will not summarize. Josh heard Eric Carter’s voice in the background as he was speaking to Paul. Then Paul put Mr. Carter on the phone. I will not recount that conversation as it is hearsay, although I note that Josh described it as “drunken stupid talk”. Josh said that then all of a sudden Eric hung up. Josh also said that he briefly spoke to Mr. Forgues during that phone call (again, I do not repeat the content of what he says Mr. Forgues said, as it is hearsay). That was the last of Josh’s involvement that night.

[132] These events are also captured to some degree on the security video from the bar filed as exhibit #25. I will address the video evidence before turning to the evidence of other witnesses in relation to the altercation in the darts area. I do so because my conclusion for the other witnesses is that they simply do not shed light on what happened in the darts area, either because their memories are too poor, or because they were not present or not paying attention to that area.

[133] My basic finding about the video evidence is that it provides some support to Mr. Carter’s evidence about the nature of his interaction with Mr. Spilchen in the darts area. It makes it clear that Mr. Spilchen was in that area, was playing darts, and had an interaction with Mr. Carter during that time. I find it also is somewhat supportive of Mr. Carter’s evidence that the interaction at some point involved a level of verbal confrontation (not physical). I based this on my observations of the body language of Mr. Carter and Mr. Spilchen in exhibit #25. However, the weight I give to the video is somewhat limited by the fact that there is no sound. As with the other video evidence in this trial, the absence of sound and being able to hear what various people are saying limits my ability to draw inferences from the video.

[134] I note at the outset that because of the camera angle and the fact that the darts area is raised up a couple of steps above the rest of the bar, although the view of the stairs leading to the darts area is relatively clear, the view of the higher up darts area cuts off so that one mostly cannot see the heads of people who are in the darts area on the right side of the stairs (closer to the dart boards). However, although one cannot see people’s heads in portions of the video, I can for the most-part tell who the people are. For example, although Mr. Spilchen and Mr. Deliva were both wearing jeans and white T-shirts, their body shapes are sufficiently different that I can tell who is who in the portions of the video when the head is not shown. This said, much of the interaction between Mr. Carter and Mr. Spilchen is fully visible on exhibit #25.

[135] Mr. Spilchen, Mr. Deliva, and Mr. Forgues are near the area where there was a DJ at approximately time stamp 01:12:40 on the video. This area is adjacent to the darts area. Mr. Forgues goes up the steps to the darts area at time stamp 01:12:43. Mr. Deliva and Mr. Spilchen go up to the darts area between approximately time stamps 01:12:52 and 01:13:00. There are in the range of half a dozen other people in the darts area at this time, including Mr. Carter, who I can identify in earlier portions of the video by his clothing and body size even when his head is not visible. Some of the people in the darts area are seated. Some are standing either near the top of the stairs, or in the area one would stand to play darts. As time passes, more people come up to the darts area, and some leave.

[136] It appears as if at least Mr. Spilchen and Mr. Deliva are playing darts at times. I find that Mr. Carter and Mr. Spilchen appear to be speaking from approximately time stamp 01:14:20. At that time, their heads are not visible, but I can tell from the clothes, including Mr. Carter’s boots, and body shape that it is them. They are in close proximity facing each other and are gesturing as some people do when speaking. Within the time before their heads are visible, I am also able to see Mr. Spilchen throw a dart at time stamp 01:15:57 to 01:16:07, and then turn back to the area where Mr. Carter is standing. Their proximity with each other is consistent with them continuing to speak. Just after 01:19:14 time stamp, Mr. Spilchen, who is facing Mr. Carter, leans forward and is gesturing with his left arm, and rocking his body back and forth towards Mr. Carter. Again, I draw the inference from this that they are speaking. Mr. Carter and Mr. Spilchen move slowly to the left and forward, closer to the top of the stairs, so they are more clearly visible to the camera.

[137] From approximately 01:19:45 time stamp, Mr. Spilchen and Mr. Carter appear to be speaking to each other at the top of the stairs to the darts area. For much of this time from 01:19:45 onward, Mr. Spilchen is leaning on the half-wall at the edge of the darts area. At times, each man gestures with his arms while they speak. This goes on for a few minutes. From approximately 01:24:34, people are starting to file out of the darts area. Mr. Spilchen is leaning on the half-wall at the top of the stairs. Mr. Carter is facing him, and they are speaking quite close to each other. Then they appear to pat each other on the shoulder, loosely embrace and shake hands (from around 01:25:00 to 01:25:28). Mr. Carter steps down a step and is facing Mr. Spilchen, who is a step or two up and speaking to him (01:25:37 time stamp). Mr. Carter then steps up towards Mr. Spilchen and they seem to embrace (01:25:47-01:25:52). They continue to speak. At 01:26:09-01:26:15 they shake hands (this would be in the range of 1:22 a.m. real time). They continue to speak. At approximately 01:26:37, Ms Honsinger approaches. She stands roughly between the two men, but back a bit, as they continue to speak. At 01:26:58, Mr. Carter moves down the stairs and away from Mr. Spilchen, and Mr. Spilchen turns and walks away into the darts area.

[138] Finally, in relation to the videos, I note that in the exhibit #26 video, Mr. Carter can be seen at the bar beginning at time stamp 01:44:21, initially with Mr. Deliva and Mr. Forgues, and soon joined by Mr. Spilchen, ordering drinks. At this point their interaction is clearly friendly (part of this is can also be seen on exhibit #20 at time stamp 01:45:45. But on exhibit #20 the preceding six minutes are not included). The video shows that Mr. Carter pays for this round of drinks.

[139] Baily Honsinger testified that she did not recall any confrontation in the darts area, or recall Mr. Carter getting into an argument or verbal or physical dispute with anyone that night, or at any point see Mr. Deliva or Mr. Spilchen have a verbal or physical disagreement or altercation with anyone inside the bar. However, the video evidence is clear that she was not present for most of the time that Mr. Spilchen and Mr. Carter were interacting. Further, although the video shows that Ms Honsinger came over and stood between the two men towards the end of their interaction, Ms Honsinger had no memory of this, or even of being in the darts area that night, even after being shown the video in an attempt to refresh her memory. She was also briefly in the darts area a couple of minutes earlier, as shown on the video, and also had no memory of this when that portion of video was shown to her during examination in chief. Ms Honsinger was quite candid that she had consumed a significant amount of alcohol that evening, first at her home, and then at the bar. She testified that beginning at 5:30 or 6:00 p.m., when her friends were having a BBQ at her home, she drank one bottle of wine, and then at the bar three or four beers. She agreed that she was intoxicated at the bar.

[140] Thus, I find that Ms Honsinger’s lack of a recollection of a confrontation or disagreement between Mr. Spilchen and Mr. Carter does not detract from Mr. Carter’s evidence. She was not present for most of their interaction (as shown by the video). She testified that she was not really paying attention to what her friends were doing when they were not directly in her company. In addition, she does not remember the portion that the video clearly shows she was present for. Although I accept that she was being truthful with the court, her lack of memory about the portion she was present for that can be seen on the video shows that her memory is not reliable about this issue. I find that this is because of the amount of alcohol she had consumed.

[141] Ms Neupauer, the bartender, testified that she did not recall any problems or arguments at the bar that night. She did not notice Mr. Spilchen, Mr. Deliva, or Mr. Forgues have a problem with anyone in the bar or get into an argument with anyone in the bar. She testified that as an experienced bartender, she keeps an eye out for disturbances or altercations in the bar.

[142] The defence did not challenge the credibility of this evidence by Ms Neupauer, but essentially argues that her not seeing or hearing anything does not detract from Mr. Carter’s evidence about the disagreement with Mr. Spilchen. She was some distance away behind the bar. A very rough estimate of the distance based on my review of the videos is in the range of 20 to 30 feet. Loud music was playing in the bar.

[143] I accept that Ms Neupauer was a credible witness. She had no interest to favour either party, she was sober during the events, and she was consistent in her evidence. However, I agree with the defence that the fact that Ms Neupauer did not observe the disagreement between Mr. Spilchen and Mr. Carter does not detract from Mr. Carter’s evidence. She was working behind the bar, which I estimate to be in the range of 20 to 30 feet away from the stairs to the darts area. Although her evidence was that she went up to the darts area from time to time to collect glasses, on my review of exhibit #25, during the time that Mr. Spilchen and Mr. Carter were interacting, she only once came to the bottom of the stairs. It was for a brief time, between 01:21:13 and 01:21:21 time stamps (8 seconds), and she appears to be looking around them on either side (I presume either seeing if anyone needed a drink or if there were bottles or glasses to clear). Given the distance she was away, the fact that loud music was playing (according to her evidence, the DJ was playing until 1:30 a.m., and the music was loud), and in light of the way Mr. Carter described the incident with Mr. Spilchen, I find that Ms Neupauer not observing it does not detract from the credibility of Mr. Carter’s evidence. Indeed, Ms Neupauer agreed in cross-examination that she did not see Mr. Carter and Mr. Spilchen interact over by the darts area at all, agreed that the music was loud until the DJ stopped playing at 1:30, and agreed that it would have been possible for people to get into a verbal argument in the bar and for her not to notice it. The most that Ms Neupauer not seeing anything shows is that there was not a physical altercation between Mr. Spilchen and Mr. Carter. But Mr. Carter did not suggest that.

[144] Mr. Deliva testified that nothing else stood out in his memory about events inside the bar. No-one in his group had any issues with anyone in the bar. He did not see Mr. Spilchen have a physical altercation, or yell or exchange bad words in the bar (nor did he or Mr. Forgues do so). He testified that Mr. Spilchen does sometimes play darts. But he testified that he had no memory of playing darts that night or of Mr. Spilchen playing darts that night, and he was not aware of a darts area in the Working Dog. When Crown counsel showed him the video from the bar of the darts area, he was able to identify Mr. Spilchen, Mr. Forgues, and himself, but it did not refresh his memory. In cross-examination, Mr. Deliva agreed that he had no memory of playing darts with Mr. Spilchen that night, and no memory that there was even a darts area in the Working Dog. He had no memory of Mr. Spilchen making a bet on darts that night. He had no memory of an altercation in the darts area, or of Mr. Spilchen getting into an argument with a big guy with red hair and a beard.

[145] In cross-examination, defence counsel suggested to Mr. Deliva that when he said in examination in chief that no-one made any threats in his presence and there was no altercation in the darts area, the correct answer was really that he did not remember. After a bit of back and forth he agreed with this suggestion. Mr. Deliva also agreed that he had no recollection of any discussion about Mr. Spilchen’s cousin, or of anyone calling Mr. Spilchen’s cousin.

[146] Mr. Forgues testified that he recalled Mr. Spilchen and Mr. Deliva playing darts at the Working Dog. Mr. Forgues testified that he did not play darts, and believed he was at the bar while the other two were playing darts. He could not recall if he watched them play darts. He initially testified that he could not recall if Mr. Spilchen and Mr. Deliva were playing darts just with each other, or with other people. He also initially testified that did not remember Mr. Spilchen or Mr. Deliva having a conversation with anyone in the darts area. After reviewing a portion of his police statement, he testified that he saw Mr. Spilchen and Mr. Deliva playing darts with some people he did not recognize, and speaking to those people. He had no recollection of an argument or a threat being part of that conversation. Mr. Forgues was shown portions of the video of the darts area (exhibit #25) in examination in chief to try to refresh his memory. He pointed himself out leaving the darts area at approximately 01:13:32 time stamp, and said he was going to the bar to buy beers (from my observations in viewing exhibit #25, Mr. Forgues returns to the darts area at time stamp 01:15:12). He then pointed out himself watching Mr. Spilchen and Mr. Deliva play darts at approximately 01:18:01 time stamp. When the video was played on to time stamp 01:27:08, Mr. Forgues testified that he remembered that Mr. Spilchen had a conversation with the man with the bun in the darts area. But that he did not remember the content of the conversation. He was asked if he had a memory of any argument or altercation between Mr. Spilchen and the man with the bun, and he replied, “I don’t remember”. In cross-examination, Mr. Forgues agreed that the first day he testified he had thought he was at the bar, and not present when Mr. Spilchen was playing darts, but the video showed otherwise. He agreed in cross-examination that the proper answer to whether he saw an altercation in the darts area was that he did not remember.

[147] Mr. Forgues testified that Mr. Spilchen had a tattoo on his forearm of his last name. He remembered someone observing the tattoo when they were outside having a cigarette. The man saw the tattoo, and said he knew Josh Spilchen, Mr. Spilchen’s cousin. Mr. Forgues believed that the man who noticed the tattoo and said he knew Josh Spilchen had his hair up in a bun. Mr. Forgues did not recall any threat or argument between Mr. Spilchen and the man with his hair in a bun. He testified that he could not remember if either Mr. Spilchen or the man with the bun made a phone call to Josh Spilchen. In cross-examination Mr. Forgues was asked a number of questions about this incident, and mostly responded, “I don’t remember”. He reiterated that he did not remember speaking to Josh Spilchen on the phone. He agreed that if there was some kind of confrontation between Mr. Spilchen and the man with the bun, he did not remember it.

[148] Considering all of this evidence together, I accept most of Mr. Carter’s evidence of what occurred in the darts area between him and Mr. Spilchen. I accept that the two of them got into a disagreement about Mr. Spilchen being “overly braggy” about winning the darts bet. I accept that Mr. Spilchen was verbally obnoxious to Mr. Carter during this disagreement. I find that the cause of this was primarily Mr. Spilchen’s level of intoxication (which I address further in the next section of these reasons). However, I also find that the disagreement between Mr. Carter and Mr. Spilchen was purely verbal, and never physical. I find that Mr. Spilchen did not make any threats during the disagreement. The one area where I have reservations about Mr. Carter’s evidence, and find it to be unreliable, is his agreement in cross-examination with the suggestion that Mr. Spilchen and his friends were looking for “a problem” or “a fight”. I find this aspect of Mr. Carter’s evidence to be unreliable. He had also consumed a significant amount of alcohol. He was unable, when asked in re-examination, to provide any description of why he thought they were looking for a problem or a fight, or to describe any actions by the three men that led him to that conclusion. Further, in examination in chief Mr. Carter was clear that Mr. Deliva and Mr. Forgues were not involved in his disagreement with Mr. Spilchen, which undermines his assertion that all three men were looking for a problem. Finally, I do not accept the defence suggestion that when Ms Honsinger arrived at approximately 01:26:37 on the videos, she was “breaking up” whatever was going on between Mr. Carter and Mr. Spilchen. By that point the disagreement was over. Mr. Carter and Mr. Spilchen had already shaken hands, and this is visible on the video, before Ms Honsinger arrived. It is true that Ms Honsinger steps forward quite close to both men on the video when she arrived. But it does not appear to me that she is trying to separate them or break anything up.

[149] There was some dispute between the parties about when and where Paul Spilchen called Josh Spilchen. The issue was whether the call took place immediately following the incident, and inside, as Mr. Carter described, or whether it took place a few minutes later, and outside, as Mr. Forgues described, and which would also be more consistent with the 1:34 time that Josh Spilchen gave for the call. The Crown places more significance on this issue than the defence. The argument is that if the call was a few minutes later, then it should not be interpreted as being made in order to defuse the conflict, because the conflict was already over when Mr. Spilchen and Mr. Carter can be seen to shake hands on the stairs to the darts area at time stamps 01:25-01:26.

[150] I am unable to make a finding of when the call to Josh Spilchen was made, and in any event, I do not find the time to be significant. It is true that in the video of the time in the darts area, we do not see Paul Spilchen take out his phone, which seems to run counter to Mr. Carter’s timing of the call. However, I find that given the other significant problems with Mr. Forgues’ memory, his evidence is not reliable as to the time of the call. Although Josh Spilchen gives a specific time for the call (indeed, the type of specific time that one could speculate he looked up on his cell phone), no-one asked him during the police interview (which was tendered on consent as his trial evidence), where he got the time of 1:34 a.m. from.

[151] The reason that I find the time of the call is not significant, is that in the end, as I explain below, I use this evidence not as disposition evidence regarding Mr. Spilchen per se, but as evidence of his state of intoxication at the time of his interaction with Mr. Carter. Given the continued drinking and relatively short passage of time from then to the stabbings, I find that Mr. Spilchen did not get any less intoxicated in the time up to the stabbings.

(v) Level of intoxication of different individuals

[152] I find that Mr. Spilchen, Mr. Deliva, and Mr. Forgues were significantly intoxicated by the time they left the Working Dog around 2:00 a.m. I base this finding on a number of pieces of evidence.

[153] The first body of evidence is the toxicology evidence in relation to Mr. Spilchen and Mr. Deliva, which was filed on consent in the agreed statement of facts and an accompanying report from a toxicologist (exhibit #11). Mr. Spilchen’s blood alcohol concentration (BAC) at the time of his death was 143 mg/100 mL of blood. The toxicologist’s projection from that BAC back to the time of between 2:00 and 2:05 a.m. on June 16, 2018 was that during that time Mr. Spilchen’s BAC was between 143 and 183 mg/100 mL of blood.

[154] Regarding Mr. Deliva, at the time blood was collected from him at the hospital, his BAC was 175 mg/mL of blood. The toxicologist’s projection back from the time the blood sample was collected to the time between 2:00 and 2:05 a.m. on June 16, 2018 was that during that time Mr. Deliva’s BAC was between 175 and 190 mg/100 mL of blood.

[155] I note that both of these projections back to the time of 2:00 to 2:05 a.m. are in the range of twice the legal limit to drive.

[156] The toxicologist also provided an opinion in relation to the effects of alcohol on a person with a BAC in these ranges. This was a general opinion, and the toxicologist opined that effects of alcohol can vary between individuals, depending on their experience with alcohol and development of tolerance for its effects. For a light to moderate drinker, the effects of a BAC in this range would be moderate to severe intoxication. For an individual with frequent exposure to alcohol, tolerance would develop such that they may exhibit no or few signs of intoxication at a BAC in that range.

[157] The second body of evidence I rely on in making the finding that Mr. Spilchen, Mr. Deliva, and Mr. Forgues were significantly intoxicated by the time they left the Working Dog around 2:00 a.m. is the evidence about how much they had to drink at the Working Dog, between approximately 12:30 a.m. and 2:00 a.m. As I have summarized above, the video evidence from the Working Dog, supported by the evidence of the bartender, Ms Neupauer, is clear that between approximately 12:30 and 2:00 a.m., a period of an hour and a half, Mr. Spilchen consumed five Jaegerbombs, plus some amount of beer, and Mr. Deliva and Mr. Forgues consumed four Jaegerbombs each, plus some amount of beer. I am unable to quantify the exact amount of beer consume, because I accept the evidence of Ms Neupauer that Mr. Spilchen’s group repeatedly ordered beer, but did not always finish the bottles, and would leave them on the bar unfinished. This was in addition to beer they consumed while painting and at the bars they attended prior to arriving at the Working Dog. This brings me to the third body of evidence I rely on in finding they were significantly intoxicated.

[158] The third body of evidence I rely on in making the finding that Mr. Spilchen, Mr. Deliva, and Mr. Forgues were significantly intoxicated by the time they left the Working Dog is the evidence of Mr. Forgues about how much they had to drink before arriving at the Working Dog. I find, based on the evidence of Mr. Forgues, that prior to arriving at the Working Dog, Mr. Spilchen, Mr. Deliva, and Mr. Forgues had at least 12 to 14 drinks each (a combination of beer and shots). This would have been between approximately 6:00 or 7:00 p.m., and 12:30 a.m. I base this on accepting Mr. Forgues evidence in cross-examination where he adopted his answer given to police the next morning, on June 16, 2018, that prior to attending at the Working Dog, the three men had had “quite a bit” to drink, which he quantified as two rounds of shots and two beers at each of the three bars they went to before the Working Dog, plus a few beers at his apartment while they were painting. This answer by Mr. Forgues to police, and adopted in his trial evidence, was given the next morning after the events, when how much they had had to drink was fresh in his mind. In addition, I note that it is reasonably consistent with the pace of the men’s alcohol consumption at the Working Dog as seen in the videos. I come to the calculation of 12-14 drinks prior to arriving at the Working Dog as follows: 4 drinks at each of the three bars prior to the Working Dog equals twelve drinks, plus (conservatively) two at Mr. Forgues’ apartment while painting. I note that putting this together with the drinks from the Working Dog (and I will count only the Jaegerbombs for this purpose, since the number of beers is unclear), I find that by the time they left the Working Dog, Mr. Spilchen had consumed in the range of 17-19 drinks between 6:00 or 7:00 p.m. and 2:00 a.m., and Mr. Deliva and Mr. Forgues had consumed in the range of 16-18 drinks in the same time period.

[159] I reject Mr. Deliva’s evidence that they drank fewer drinks at each bar prior to arriving at the Working Dog than Mr. Forgues testified to, and that he was not very intoxicated at the time they arrived at the Working Dog. I reject his evidence on this primarily for three reasons. First, Mr. Deliva was repeatedly inconsistent about the number of drinks he said he had as between his trial evidence and his evidence at the preliminary hearing. I note that each time this inconsistency was in the direction of testifying at trial to a smaller amount of alcohol consumed than he had testified to at the preliminary inquiry. Although I do not go so far as to find that Mr. Deliva was intentionally trying to mislead the court, I find these inconsistencies showed a pattern of downplaying his alcohol consumption in his trial evidence.

[160] Second, Mr. Deliva was careless with the accuracy of what he actually remembered and did not remember. Repeatedly in his evidence he gave answers asserting a memory of a particular fact in examination in chief, but when he was cross-examined, eventually would agree that the truth was that he had no memory one way or the other about the particular fact. For example, in examination in chief, he testified that he did not remember the conversation immediately prior to the stabbing. However, he also testified in examination in chief that neither he nor Mr. Spilchen made any threat to Mr. MacKinnon prior to the stabbing. When cross-examined on the obvious issue that if he had no memory, how could he know that neither he nor Mr. Spilchen had made a threat, Mr. Deliva admitted that the correct answer was that he did not know. Similarly, Mr. Deliva testified in examination in chief, and in cross-examination that he did not remember getting in the taxi and then returning to the parking lot. However, he also said in examination in chief that he did not tell the taxi to stop. Again, when cross-examined on the obvious issue that if he had no memory, how could he know he did not tell the taxi to stop, he admitted that the correct answer was that he did not know if he had told the taxi to stop. I do not go so far as to find that Mr. Deliva was intentionally trying to mislead the court. But his evidence showed a carelessness with the truth.

[161] Third, the amount of alcohol consumed at each bar prior to attending at the Working Dog, according to Mr. Deliva’s evidence, would show a pattern of much more restrained drinking at the earlier bars than the pattern and amount of drinking clearly visible on the video at the Working Dog. Thus, I find that Mr. Deliva’s evidence is understating the amount consumed prior to arriving at the Working Dog.

[162] The fourth reason I find that Mr. Spilchen, Mr. Deliva, and Mr. Forgues were significantly intoxicated by the time they left the Working Dog around 2:00 a.m. is that the evidence of the profound lack of memory of both Mr. Deliva and Mr. Forgues of the events outside the bar also supports that they were significantly intoxicated by the time they left the Working Dog. To give just a few examples, Mr. Deliva had no memory of consuming Jaegerbombs at the Working Dog; he had no memory of playing darts at the Working Dog; he could not remember leaving the Working Dog; he had no memory of leaving in the taxi and returning; he had no memory of the events immediately preceding the stabbing, and very little memory of the stabbing itself. Similarly for Mr. Forgues, although his memory was marginally better than Mr. Deliva’s, he repeatedly gave the answer, “I don’t remember”, when asked about events at the Working Dog or in the parking lot. I accept that in the case of Mr. Deliva, the trauma he suffered as a result of being stabbed and seriously injured may also have affected his memory. But given the evidence that he also consumed a very significant amount of alcohol that night, and the evidence of his blood alcohol level, I find that he was also significantly intoxicated.

[163] Mr. Forgues freely admitted in cross-examination that he was drunk by the time they arrived at the Working Dog. He agreed in cross-examination that he did not have a great memory of the evening of June 15/16, 2018. He agreed that he drank more as the night went on. He agreed that his memory was pretty fuzzy by the time they got to the Working Dog. He agreed with the characterization that he remembered a few things, but there were a lot of things he did not remember, like a few puzzle pieces. He also agreed that by the time he got to the Working Dog, he was drunk. He agreed that if he has a lot to drink it has the effect of him forgetting things. He agreed that he had had the experience (in general) of having been drinking, and remembering something but other people not remembering it the same way, and then concluding that his memory from when he was drinking was not accurate.

[164] Taking into account all of the factors above, I find that Mr. Spilchen, Mr. Deliva, and Mr. Forgues were significantly intoxicated at the time they left the Working Dog around 2:00 a.m.

[165] Before leaving the issue of the level of intoxication of Mr. Spilchen, Mr. Deliva, and Mr. Forgues at the time they left the Working Dog, I want to briefly address the evidence of Mr. Spilchen’s call for a taxi. The audio of Mr. Spilchen calling for a taxi at approximately 1:50 a.m. was entered as an exhibit (exhibit #50). The defence submits that Mr. Spilchen sounds intoxicated on the call. I find that the call is consistent with him being intoxicated, but I cannot say more than that. I do not find it adds anything to the picture. I say this for the following reasons. It is a very short call. I do not know what Mr. Spilchen’s voice or manner of talking when he was sober was like. I have nothing to compare his voice and manner on the call to his normal manner of speaking. He is able to respond to the operator. But at times there is delay when he responds. He seems to mispronounce the word Midland (the street name). Ultimately, I find that the call is not inconsistent with my conclusion that he was significantly intoxicated, but it is not in itself positive proof that he was intoxicated.

[166] I find that Mr. Dimitruk was also significantly intoxicated at the time of the events immediately preceding and during the stabbings. The evidence is not in dispute that he had eight drinks at the Working Dog. Mr. Dimitruk testified that he also drank beer at his home before he went to the bar, although he could not remember how many beers he drank at home. I accept Mr. Dimitruk’s evidence that he drank some amount of beer at home in addition to the drinks he had at the bar. In addition, as I have found above at para. 106, I find that Mr. Dimitruk consumed five tall boy Bud beers, two shots of tequila (one ounce each), and a vodka and orange juice during the time they were at the bar – that is, eight drinks between approximately 11:30 p.m. and 2:00 a.m. I am satisfied that together with the unknown amount of beer Mr. Dimitruk consumed at home before going to the bar, he was significantly intoxicated by the time he left the bar around 2:00 a.m.

[167] I accept that Mr. Dimitruk’s memory was also affected by the medical effects of having had a portion of his brain removed to address his epileptic seizures. I am unable to say how much of his lack of memory of the events of the evening of June 15/16, 2018 is due to alcohol consumption that night and how much is due to his medical condition. For the purposes of this trial, it is not necessary for me to resolve the source of Mr. Dimitruk’s lack of memory. Whatever the cause, I find that he has essentially no useful memory of the key events immediately preceding and at the time of the stabbings.

[168] As noted above, I find that Mr. MacKinnon drank five Bud Light tall can beers at the bar. I also accept his evidence that he had one beer at his mother-in-law’s home. That evidence was not challenged by Crown counsel in cross-examination. Mr. MacKinnon testified that by the end of the night at the bar (i.e., 2:00 a.m.), he would place his level of intoxication at a three or four on a scale where one is sober, and 10 is so drunk you can’t stand up. He said he would not have driven at that time.

[169] I accept that having consumed this amount of beer, there was some effect of alcohol active on Mr. MacKinnon at the time he left the Working Dog, but that the evidence does not show that he was significantly intoxicated.

(vi) Arrival of Chris Williams

[170] The security video shows Chris Williams arrive at the Working Dog at time stamp of 1:35:30 (real time around 1:31 a.m.).[^3] He arrives in a white four-door car, which he parks out front. Mr. Williams goes over to the bar where Mr. MacKinnon is seated (alone at that point). Mr. Williams appears to greet Mr. MacKinnon, order a drink, and then the two of them are talking at the bar. A few minutes later, Mr. Dimitruk returns and greets Mr. Williams.

[171] Mr. MacKinnon testified that Mr. Williams arrived and joined them at the bar at some point. Mr. Williams is the father of Mr. MacKinnon’s sister-in-law’s son. Mr. MacKinnon testified that he was not in communication with Mr. Williams prior to Mr. Williams’ arrival at the bar, and it was a surprise to him that he showed up.

[172] Mr. Dimitruk testified that Mr. Williams arrived at the bar at some point. He estimated the time as around 1:00 a.m. He testified that there had not been a prior plan to meet Mr. Williams at the bar, but that Mr. Williams lived in the area, and also sometimes would stay at the home of Mr. MacKinnon’s mother in law (who was also the mother of Mr. Williams’ girlfriend Amanda Lomas, the sister of the spouse of Mr. MacKinnon).

(vii) Events outside the bar before the taxi arrives

[173] It is agreed that Mr. MacKinnon and Mr. Dimitruk left the bar shortly before 2:00 a.m. Mr. MacKinnon exited initially with Mr. Williams, and then went back in to get Mr. Dimitruk. He initially exits at approximately time stamp 01:50:46. Mr. Dimitruk remains inside the bar at this time, speaking to the owner, then the DJ, then Mr. Forgues, and then Mr. Deliva. At time stamp 01:53:46, Mr. MacKinnon re-enters the bar. At the same time, Mr. Spilchen is exiting while speaking on his cell phone. They pass in the vestibule. This appears uneventful. While inside, Mr. MacKinnon speaks to Mr. Dimitruk, who appears to be finishing his beer. Mr. MacKinnon exits again at time stamp 01:54:45. As he exits, he passes Mr. Spilchen in the vestibule (Mr. Spilchen is re-entering the bar). This is at approximately 01:54:50 time stamp on the video. On the video, Mr. Spilchen appears to bend down at this time, as if maybe he had dropped something, and Mr. MacKinnon appears to step back (as if to get out of the way), but then they pass each other in the vestibule as Mr. MacKinnon exits and Mr. Spilchen enters. On my review of the video this looks like a normal, uneventful, and not aggressive interaction. Mr. Dimitruk is still inside the bar at this point. Mr. MacKinnon can be seen waiting outside. He then re-enters at 01:55:45. He speaks to Mr. Dimitruk, and gives a high five to Ms Honsinger as she passes by. Mr. MacKinnon and Mr. Dimitruk exit the bar at 01:56:22.

[174] Mr. Spilchen, Mr. Deliva, and Mr. Forgues also exit the bar shortly before 2:00 a.m. (around time stamps 1:55:21 for Mr. Spilchen, and 1:56:20 for Mr. Deliva and Mr. Forgues).

[175] The camera views once the men are outside do not capture all of the activity of all the men. This is between the time stamps on the video of approximately 1:56:30 a.m. and 2:02:55 (real time approximately 1:52 to 1:58). Mr. William’s car is parked a few spots to the west of the entrance to the bar. This area is captured clearly on the outside camera. Mr. Williams is seen going into his trunk, taking a bag out, and then changing his shoes. He also goes into the driver seat of the car. At times Mr. MacKinnon is over either at the side or the rear of Mr. Williams’ car speaking to Mr. Williams. At times Mr. MacKinnon goes over closer to the door to the bar, and less of the interaction is visible.

[176] Based on the security video, I find that at the same time, Mr. Dimitruk, Mr. Spilchen, Mr. Deliva are standing near the door to the bar talking. Mr. Forgues is present, but it is not clear that he is actively participating in the conversation. As I have noted earlier, there is no sound on the video. At times Mr. MacKinnon is standing close to the group near the door to the bar. However, I find that it is not clear from the video that Mr. MacKinnon is actively participating in the conversation. The view of Mr. MacKinnon is often obscured either by other people, or by a pillar. At times, Mr. MacKinnon walks over to speak to Mr. Williams, who is at his car a short distance away. Crown counsel asked the court to make a finding that Mr. MacKinnon was directly interacting with Mr. Spilchen’s group during this time. I find that the evidence is not sufficient to make that finding. As I have just explained, the video evidence is not clear on that point. And none of the Crown witnesses have any memory on this issue. By contrast, I find that it is clear from videos that Mr. Dimitruk is actively engaged in conversation at least with Mr. Deliva. The video is less clear whether Mr. Dimitruk is interacting with Mr. Forgues and Mr. Spilchen because they are less visible on camera. But I infer that Mr. Dimitruk was also interacting with Mr. Spilchen because of the fact that they embrace when Mr. Spilchen’s group leaves. Mr. Dimitruk is animated, and appears to be dancing or jumping at times.

[177] Based on what I can see in the video, this interaction before the taxi leaves looks friendly. I draw this conclusion both from the body language that one can see in the video, and from the fact that when the taxi comes and Mr. Spilchen, Mr. Deliva, and Mr. Forgues begin to walk over to get in, both Mr. Spilchen and Mr. Deliva embrace Mr. Dimitruk before they leave. It is the kind of embrace/hug that one often sees between friends or acquaintances, and looks friendly.

[178] The taxi pulls into the parking lot at 02:01:22 time stamp on the video (real time approximately 1:57). Based on the security video, I find that Mr. Spilchen and Mr. Deliva are saying goodbye to Mr. Dimitruk before they leave. Mr. Spilchen and Mr. Deliva both embrace Mr. Dimitruk before they get into the taxi. The taxi leaves at 02:02:55 time stamp on the video (approximately 1:58 real time). Mr. Dimitruk waves as it leaves.

[179] Mr. MacKinnon and Mr. Dimitruk are seen on the video briefly speaking and looking at an object in Mr. MacKinnon’s hand (I come back to this issue below). They then get into Mr. Williams’ car, Mr. MacKinnon in the front passenger seat, and Mr. Dimitruk in the rear passenger seat.

[180] Mr. Dimitruk testified that he remembered people talking outside the bar after closing (i.e., after 2:00 a.m.).

[181] Mr. Deliva testified that he could not recall if they heard last call or that the bar was closing, but they decided to pay their bills and head out. He said he did not recall who paid the tab. I pause to note that Mr. Deliva is incorrect in saying that they had a bill to pay, as Ms Neupauer was clear that she did not let that group run a tab because she did not know them. He testified that he could not recall if they had any drinks before they headed out.

[182] Mr. Deliva testified that they went outside to figure out where to go from there – whether to go home, or to another bar before bars closed. He testified that his memory started getting “a little fuzzy” from that point, and he did not really remember what happened. He testified that this was not because of alcohol, but because of the trauma. When shown the video of himself and Mr. Spilchen shaking hands with Mr. Dimitruk before they left in the taxi, he said he had no memory of those events.

[183] Mr. Deliva testified that he remembered walking and talking to a group of guys. It was unclear to me from his evidence whether he was speaking about before his group left in the taxi, or after. For this reason, I summarize the balance of his evidence below in the section about the events immediately preceding the stabbing.

[184] Mr. Forgues’ evidence about the events outside the bar both before and after the taxi left was a bit unclear in terms of sequence. But I understand his evidence as to events outside the bar before his group left in a taxi as follows.

[185] Mr. Forgues testified that before they got into the taxi, there were three men in the parking lot in a white car. The first was a white male, 5’6” or 5’7”. He was driving the car. The second was a black male, around 6’ tall, with an afro. He could not recall the description of the third man, other than he was 6’2” or 6’3” tall, and heavy, by which he meant 230-250 lbs. He testified that when they walked back from the taxi, the three men were in the white car in the parking lot at the Working Dog. Those three men exited the white car. I note that these general descriptions fit Mr. Williams, Mr. Dimitruk, and Mr. MacKinnon, respectively.

[186] Mr. Forgues was asked if he remembered any conversation between his group and the other group of men. He said that he remembered shaking hands with someone from the other group before they left in the taxi. He could not remember who he shook hands with before getting into the cab. He could not remember if Mr. Spilchen or Mr. Deliva shook anyone’s hand. He testified that before leaving in the taxi, his group had been speaking to the other group of men outside the bar. He could not remember how long they were talking outside the bar. He could not remember any specific words or topics of that conversation. Yet, in examination in chief he testified that neither he nor his friends made any threats in that conversation. He was shown a portion of the video just after time stamp 01:58:27, which showed some of the men speaking outside the bar. He testified that seeing that portion of the video did not help to refresh his memory about the topics of conversation outside before his group left in the taxi. In cross-examination, he agreed that he had no memory of talking to people outside the bar before they left in the taxi, but just saw it on the videos. He testified that he had no present memory of what went on with the other group of men after they left the bar, but before his group got into the taxi.

[187] Mr. MacKinnon testified that at the end of the night he went outside the bar with Chris Williams. Mr. Dimitruk was still socializing inside the bar. Mr. MacKinnon waited for Mr. Dimitruk out front of the bar for a few minutes with Mr. Williams. He recalled a man coming up to him asking for directions during this time (this is visible on the videos). Mr. MacKinnon testified that he had to go back into the bar to “round up” Mr. Dimitruk – to convince him to finish his drinks and that it was time to leave. He then exited the bar with Mr. Dimitruk.

[188] Mr. MacKinnon testified that outside the bar, Mr. Dimitruk struck up a conversation with three men who Mr. MacKinnon did not know outside the entrance to the bar (it is not in dispute that these men were Paul Spilchen, Richard Deliva, and Gordon Forgues). Mr. MacKinnon testified that he had not spoken to the men inside the bar, or had any verbal altercations with them inside the bar. Mr. MacKinnon testified that he observed Mr. Dimitruk’s conversation with the three men. Mr. MacKinnon testified that Mr. Dimitruk and the three men were outside the entrance to the bar. Mr. MacKinnon himself was back and forth between where Mr. Dimitruk was, and a short distance away where Mr. Williams was near his parked car (a couple of parking spaces away based on both the video and Mr. MacKinnon’s evidence).

[189] Mr. MacKinnon testified that his conversation with Mr. Williams was just small talk. He also testified that Mr. Williams asked him to borrow some money, but he said he did not have any cash on him, just credit and debit cards. Mr. MacKinnon testified that he had intended to walk home from the bar, but then Mr. Williams offered him a ride, and he accepted.

[190] Mr. MacKinnon testified that he did not remember the content of the conversation between Mr. Dimitruk and Mr. Spilchen, Mr. Deliva, and Mr. Forgues. But he remembered seeing embracing and handshakes between Mr. Dimitruk and the other men. He did not recall any tension in the conversation between Mr. Dimitruk and the other men at that point. Mr. MacKinnon was under the impression that they knew each other. He testified that all of the men’s voices were louder than normal during that conversation, but that there was “no friction” in the conversation. Mr. MacKinnon testified that he did not speak to Mr. Spilchen, Mr. Deliva, or Mr. Forgues at that point (i.e., before they left in the taxi), and he does not recall the three men speaking to him. A taxi showed up, and before the three men got into it, Mr. Dimitruk and the men were hugging and shaking hands. Mr. MacKinnon then got into Mr. Williams’ car for a ride home.

(viii) Departure of Paul Spilchen, Richard Deliva, and Gordon Forgues in the taxi, and their return on foot

[191] It is an agreed fact that Mr. Spilchen called for a taxi at approximately 1:50 a.m., prior to leaving the bar. A recording of Mr. Spilchen’s call to the taxi dispatcher was marked as exhibit #50. The taxi arrives outside the Working Dog and pulls into the parking lot at approximately 1:57:32 a.m. (this is based on the taxi records). This is also visible on the security video from the bar (at time stamp 02:01:22). It is an agreed fact that the taxi driver, Mr. Ghirmay Mangesha, turned the fare meter on at approximately 1:58:57 a.m. He cancelled the fare at approximately 1:59:58 a.m. This is supported by a record from the taxi company entered as exhibit #5.

[192] The taxi is seen leaving on the security video at the time stamp 02:02:55 (real time approximately 1:58 a.m.).

[193] On the video, as the taxi leaves, it goes to the right on St. Clair (west). It is never entirely out of view of the security camera. It is partially obscured by a fence as it turns onto St. Clair, but even then, the top of the taxi is visible. It stops very soon after it pulls out onto St. Clair. I find that it had not gone more than 10 metres. Within 30 seconds or less from when the taxi began to leave the parking lot, Mr. Spilchen, Mr. Deliva, and Mr. Forgues can be seen on the video returning on foot to the Working Dog parking lot. They are approaching the edge of the parking lot on foot at 02:03:19 time stamp on the security video (approximately 1:59 a.m. real time).

[194] The taxi driver, Mr. Mangesha testified at trial. Mr. Mangesha had worked as a taxi driver full-time for about eight years as of the time he testified (thus, about five years as of the time of the events in this trial). In 2018, he usually worked six or seven days a week, and leased a taxi through Co-op Cabs. On Friday evenings he would work from between 7:00 p.m. and 9:00 or 10:00 p.m. He would then go home and sleep, and go back out on the road later in the night, and work until 3:00 or 4:00 a.m., or sometimes all night.

[195] He could not recall the exact time he received a dispatch to attend at the Working Dog. He recalled being dispatched to an address on St. Clair East, on the north side. He attended at the address. He did not know who he was to pick up, so he waited. He did not remember how many people were outside the address, but there were more people outside than ultimately got into his taxi. They were talking. He could not hear what they were saying. He did not see anything unusual or any altercation.

[196] Three or four men came to the taxi and got in. One man got in the front seat, and either two or three men got in the back (as it is not in dispute that the men were Mr. Spilchen, Mr. Deliva, and Mr. Forgues, I omit Mr. Mangesha’s description of the men). Mr. Mangesha asked where they were going, and they said, “turn right” (westbound on St. Clair). Mr. Mangesha testified that in his experience as a taxi driver, he does not feel safe when he asks passengers where they are going, and they don’t tell him their destination, but just say, “left” or “right”.

[197] Mr. Mangesha turned right onto St. Clair (westbound). Then he heard one of the men say, “stop”. He did not know which man said it. The man said “stop” in a normal voice. He was not yelling. Mr. Mangesha stopped the car. The taxi had only gone 10 or 20 metres. It was a very short time. The men got out. They did not pay him. They did not ask him to wait. The passenger in the front seat did not shut the door when he got out. The men left on foot. Mr. Mangesha tried to ask if he should wait. He got no response. He then reached over and shut the front passenger door, turned off the fare meter, and he left. He did not see or hear what the men did after they got out of the taxi, except that they went back in the direction they had come from. He did not hear or see anything that in his mind gave him an explanation for why the men had asked him to stop the taxi.

[198] In cross-examination, Mr. Mangesha again said that when a passenger does not tell him their destination, he does not feel safe. He agreed that it is sometimes not easy to explain why a passenger may make him feel unsafe. He agreed that the men who got in his taxi smelled of alcohol, but said he did not know how much they had had to drink. He testified that when he turns on the fare meter in his taxi, the starting fare is $3.25. He did not see what the fare was when these men got out of his taxi, but it would have been at least $3.25. Mr. Mangesha denied the suggestion he was scared of the men. But he agreed that in his statement to police he used the word “scared”. He explained that the men did not do anything to scare him, but that he felt unsafe because they did not tell him their destination when he asked (and just said, “turn right”).

[199] There were not significant issues about the credibility or reliability of Mr. Mangesha’s evidence. However, the defence made the submission that his evidence should be characterized as having been afraid of Mr. Spilchen’s group because of their behaviour. In my view, this overstates the effect of his evidence. I find that what made Mr. Mangesha afraid or uncomfortable was that when he asked them where they were going, they told him to turn right onto St. Clair, but did not give him a final destination. In his experience as a taxi driver, not being told a final destination was something that made him uncomfortable. It is true that at times Mr. Mangesha used the words “scared” or “uncomfortable”, but his evidence as a whole was clear that what made him uncomfortable was that the men did not tell him a final destination when he asked. I find that he was not saying that the group did anything threatening or aggressive to cause him fear.

[200] The defence also submits that the fact that Mr. Mangesha chose to leave, and not go after the group for the fare when they got out of the taxi is evidence that he was afraid. I find that he did not say that, and that it is not a reasonable inference from his evidence. As Mr. Mangesha said, the taxi had only gone 10 or 20 metres when they told him to get out. He had basically just turned on the fare meter. I find that in that context, his decision to simply leave when the men told him to stop and then got out of the taxi, and were not clear with him if he should wait, is not evidence that they did anything to make him afraid of them (apart from the failure to state a final destination).

[201] Mr. Deliva testified that he had no memory of getting into a taxi, or stopping and coming back to the Working Dog parking lot. He testified that he had no memory of whether he left the parking lot at any point. He was shown portions of the bar’s security videos showing these events, but it did not refresh his memory.

[202] In cross-examination, Mr. Deliva agreed that he had no memory of anyone calling a taxi, no memory of getting into a taxi, and no idea what they were planning when they got into the taxi. However, when it was suggested to Mr. Deliva in cross-examination that he was the one who told the taxi driver to stop, he disagreed, and said, “I’m not the one to say stop after we were leaving. Why would I say stop after we were getting into a cab?” It was then suggested to him that he had seen the video, and they did get in the taxi and leave, and then return on foot. He agreed that this meant that someone or something made the cab stop. He agreed it could be that one of them told the cab to stop, but then added, that it could be that the cab had a flat tire, or a breakdown, or the driver had a service call, or something else to do with his family. He agreed that none of these scenarios has happened to him personally, but said, “I can’t say it hasn’t happened to a group of people in the world”.

[203] In cross-examination, Mr. Deliva denied the suggestion that when they came back to the Working Dog parking lot from the taxi, they were looking for trouble. He was asked if he could think of any reason that they came back. He said, “maybe to get another drink”. He denied the suggestion that he knew perfectly well (at the time he testified) that the bar was closed, and that they had not gone back in order to get a drink.

[204] Mr. Forgues testified that he thought that they left the bar because it was last call. They were planning to go home by taxi. In cross-examination, he adopted as true what he told police on June 29, 2018, which was that it was last call, the end of the night, and they were going to go back to his house for a few more drinks. He testified that he and Mr. Spilchen and Mr. Deliva got into a taxi. He could not recall who called the taxi. He believed he sat in the rear passenger side of the cab. He believed Paul Spilchen sat in the front passenger seat. But other than that, he did not remember being in the cab. He was asked if he remembered himself or Mr. Spilchen or Mr. Deliva saying anything in the cab. He replied, “I don’t remember.” He was then asked if he remembered anyone saying anything to the cab driver. He responded that he remembered Mr. Deliva asking the cab driver to stop. The cab stopped. Mr. Forgues could not remember how far the cab had driven when it stopped. He could not remember if there was any conversation among himself, Mr. Spilchen, and Mr. Deliva about why they wanted to cab to stop. He could not remember if he heard or saw anything inside the cab that would explain why they wanted the cab to stop. In cross-examination Mr. Forgues agreed that he did not really know what was going on at that point. He agreed that he was pretty drunk at that point, and if his friends were going somewhere, he would go with them.

[205] Mr. Forgues testified that when the cab stopped, all three men got out. Mr. Forgues could not remember who got out first. He could not remember why he got out of the cab. He could not recall where he, Mr. Spilchen and Mr. Deliva went when they got out of the cab. After reviewing a portion of his police statement from June 29, 2018, Mr. Forgues testified that they walked back towards the Working Dog. He testified that he did not remember why they did that.

[206] Mr. Dimitruk did not give any evidence about Mr. Spilchen’s group leaving in the taxi and then returning on foot.

[207] Mr. MacKinnon testified that after Mr. Spilchen, Mr. Deliva, and Mr. Forgues left in the taxi, the taxi left, and he and Mr. Dimitruk got into Mr. Williams’ car (both on the passenger side – Mr. MacKinnon in the front, Mr. Dimitruk in the back). The taxi went out of sight because of a fence at the edge of the Working Dog property.

[208] Mr. MacKinnon testified that he then saw Mr. Spilchen, Mr. Deliva, and Mr. Forgues walk back onto the Working Dog parking lot.

[209] I accept Mr. Mangesha’s evidence that one of the men in Mr. Spilchen’s group told him to stop the taxi, and that is why he stopped. I also accept his evidence that his fare was not paid, and that whoever was sitting in the front passenger seat did not shut the door when he got out. Mr. Mangesha was consistent in his evidence. He has no interest in the outcome of the trial, and no apparent reason to be untruthful. And his evidence makes logical sense (i.e., it is common experience that a taxi driver will stop their vehicle if a passenger asks them to do so). Further, there is no evidence inconsistent with his evidence. Mr. Deliva had no memory at all of getting into the taxi or coming back from it. Although Mr. Forgues had some memory of the taxi, it was limited. I note that Mr. Forgues’ memory is that it was Mr. Deliva who asked the taxi driver to stop. However, given the limits of Mr. Forgues’ memory about the taxi ride, and about other events immediately before, during, and after the stabbing, I am not prepared to accept his evidence that it was Mr. Deliva who asked the taxi driver to stop as reliable. In sum, I accept that one of Mr. Spilchen, Mr. Deliva, or Mr. Forgues asked the taxi driver to stop. But I am unable to find which one asked the driver to stop, or why.

[210] Before leaving my summary of the evidence on this issue, I flag, and I will return to it later, that Mr. Deliva’s willingness to speculate about why the taxi stopped, and why the men returned to the parking lot gives me concern for the credibility and reliability of his evidence. I accept that he has no memory, but his willingness to speculate that maybe the taxi stopped because of a flat tire, or a breakdown, or a service call, or a family matter shows a carelessness with providing accurate evidence to the court. Further, his speculation that maybe they were coming back to have another drink is, I find, entirely contrary to the evidence. The video record of the events inside the bar before the men left is crystal clear that the bar was closing. Further, they were standing in the parking lot outside the bar for five or six minutes prior to the arrival of the taxi, near the door, which I find also supports the inference that they knew the bar was closed. I find that Mr. Spilchen, Mr. Deliva, and Mr. Forgues must have known at the time they left the bar that it was closing. Whatever the reason for their return to the Working Dog parking lot, I find that it was not for the purpose of going back to the bar to have another drink.

[211] I highlight that based on this evidence, I am unable to make a finding as to why Mr. Spilchen’s group told the taxi driver to stop, got out, and walked back to the Working Dog. As I will come to below, it seems at least unusual, given that the bar was closed, a fact that I find they must have been aware of at the time. Further, I find that since Mr. Spilchen had phoned for a taxi at 1:50 a.m., the men clearly had an intention to go somewhere else. I highlight at this stage that the reason why they returned is a gap in the evidence.

(ix) The object in Mr. MacKinnon’s hands at approximately 2:02:57-2:03:00 on the Working Dog security camera video

[212] At approximately 2:02:57 time stamp on the security video, just after the taxi has pulled away, Mr. MacKinnon can be seen pulling an object out of his left pocket and showing it to Mr. Dimitruk. The object is visible for only a few seconds. Mr. MacKinnon holds the object in his left hand. For part of the time that the object is visible, Mr. MacKinnon is touching the object with his right hand.

[213] Mr. MacKinnon testified that he had no memory of what the object he was holding at that point was. As I have noted above, he testified that he had in his pocket that night his wallet, his phone, his keys, and the folding knife he uses for work, all of which he had transferred from the pocket of his work clothes when he got changed at his mother-in-law’s home. Mr. MacKinnon’s evidence was clear that he had no memory of what the object was. However, he speculated that it may have been his wallet, because at some point that night Mr. Williams had asked him to borrow some money, and he may have been telling Mr. Williams that he did not have any money. But his evidence was clear that he did not have an actual memory of what the object was or that it was at that specific time that Mr. Williams asked him to borrow money. In cross-examination, Mr. MacKinnon agreed that the object on the video could not have been his keys. However, he did not agree to the suggestion made by Crown counsel that it could not have been his cell phone. I note that in submissions, Crown counsel argued that he did agree that it could not have been his phone. That is not how I understood Mr. MacKinnon’s answers to these questions. I note that Crown counsel’s question was posed in the negative, which may explain Crown counsel’s different understanding of the answer. But both when I heard the evidence viva voce in court, and on re-listening to it on the DRD, I find that Mr. MacKinnon did not accept the suggestion that the object could not have been his cell phone.

[214] Mr. Dimitruk had no memory of Mr. MacKinnon showing him this object, or of what it was, even after he was shown the portion of the security video by Crown counsel in an attempt to refresh his memory.

[215] Crown counsel submits that this is the knife that Mr. MacKinnon used to inflict the stab wounds. Crown counsel argues that one can see on the video that the object appears to get smaller at some point, and that this is Mr. MacKinnon folding the knife to close it.

[216] Defence counsel submits that the evidence is insufficient to show that the object is a knife, and that it could be Mr. MacKinnon’s wallet or cellphone. Defence counsel argues that to the extent the video may show the object changing in size, it could simply be a change in the angle of perspective, so that the camera is capturing a shorter side of the object.

[217] I make a finding in relation to this object now because given that Mr. MacKinnon’s evidence is that he does not remember what it was, my finding is not dependent on assessing the credibility and reliability of Mr. MacKinnon’s evidence.

[218] I have re-watched this portion of the video multiple times, both at regular speed and slowing down the replay. I also consider this portion of the video in the context of all of the evidence. I find that it is simply not clear enough to make a finding that the object that Mr. MacKinnon has in his hands is a knife. The object appears black. Whatever it is, it is a three-dimensional object, which the video captures in two dimensions, from a distance. Further, I do not see the purported folding of the object that Crown counsel asserts one can see. Rather, what I see is that for part of the time the object is visible it is partially covered by Mr. MacKinnon’s right hand.

[219] I accept that Mr. MacKinnon also had his wallet, cell phone, and keys in his pocket that night. I accept that the object is not keys. But I find that it could be either his wallet, his cell phone, or the knife. On earlier portions of the video in the bar, one can see Mr. MacKinnon repeatedly take his cell phone and his wallet in and out of his left pocket, or reaching to his left pocket as if putting something in or taking something out, even if the object is not visible (for example, exhibit #22-1, just after approximately 00:01:23 time stamp and just after 00:03:45 time stamp taking his wallet out of his left pocket, and later returning it to his left pocket; exhibit #22-5, at just after time stamp 00:15:32 returning his cell phone to his left pocket; exhibit #22-7, just after time stamp 00:17:31 returning his cell phone to his left pocket; exhibit #22-9, at time stamp 00:18:23 removing his cell phone from his left pocket; exhibit #23-3, just after time stamp 23:52:07 returning his cell phone to his left pocket). Both the wallet and the cellphone are black. The wallet folds to open and closed.

[220] On my review of the video from 02:02:57 to 02:03:00, where Mr. MacKinnon is holding the object outside in the parking lot, I do not see Mr. MacKinnon folding anything as Crown suggests. It appears more likely to me that Mr. MacKinnon’s hand is partly blocking the object for a brief time. After his hand is removed, I do not see the object to be smaller or shorter. The bottom line is that I cannot tell what it is on the record before the court, and given the other items in Mr. MacKinnon’s pocket that night, I am not prepared to draw the inference that it was the knife used to inflict the stabbings.

[221] I have also considered Crown counsel’s argument that the court should find that the object is not Mr. MacKinnon’s wallet because at 01:36:15-01:36:23 time stamp on the video Mr. MacKinnon can be seen inside the bar putting his wallet back into his right pocket. The sequence of events is that at approximately 01:34:59 he removes the wallet from his right pocket. He then takes out a card and pays the bartender using the mobile payment terminal. He then puts the card back in his wallet, puts the wallet into his left pocket, and then immediately removes it and puts it into his right pocket (the sequence ends at 01:36:23). Crown counsel argues that this portion of the video supports that the object Mr. MacKinnon is seen holding in the Working Dog parking lot at 02:03:57 on the video could not be his wallet, because the object was removed from his left pocket. Crown counsel also made the submission that on the ATM video, which shows Mr. MacKinnon a short time after the stabbing, he can be seen removing his wallet from his right pocket.

[222] I do not find this submission by Crown counsel persuasive. At various times during the evening, Mr. MacKinnon can be seen on the videos from the bar taking things in and out of his left pocket, including his wallet. Thus, the evidence is clear that at times his wallet was in his left pocket. Although I accept that the video shows that at approximately 01:36:21 time stamp, he put the wallet into his right shorts pocket, Mr. MacKinnon is not constantly on video between that time and 02:02:57 when the unknown object can be seen being removed from his left pocket and in his hand in the parking lot. I find that I am unable to rule out that he moved his wallet back to his left pocket between 01:36:21 and 02:02:57, particularly since the videos show him having had it in both pockets at different times in the evening.

[223] Further, I do not accept Crown counsel’s submission that the ATM video shows Mr. MacKinnon remove his wallet from his right shorts pocket. I have reviewed the video. I find that it shows that as Mr. MacKinnon enters the gas station store, on one camera view, it appears that he may be reaching towards his right pocket, but it is not clear. Before one can see for sure, he is behind a shelf. Then the camera switches to a different view, at which time Mr. MacKinnon’s wallet is already out, and he is holding it with both hands. There is another view from behind, where it is in his right hand, but at that point it is in front of him, and not near his pocket. I am unable to find on that evidence that he took his wallet from his right pocket at the ATM.

[224] I have also considered the uncontradicted evidence that Mr. MacKinnon used a knife to inflict the two stabs wounds within four minutes after he is seen holding the object on the video. But taking all of this together, with my own review of that portion of the video (repeated times), I cannot tell what the object on the video is. I am not able to find that it is a knife. It could be a knife. It could be Mr. MacKinnon’s wallet. It could be his cell phone. I find that the evidence simply is not clear enough.

[225] Considering all of this evidence, in the context of the evidence as a whole, I am unable to find that the object in Mr. MacKinnon’s hands in the parking lot of the Working Dog at 02:02:57 on the videos is his knife.

(x) Events immediately preceding the stabbing and the stabbing (after return of Mr. Spilchen’s group on foot)

[226] The sources of evidence about the events immediately preceding the stabbing are the security video from the Working Dog; the evidence of Mr. Dimitruk, Mr. Deliva, and Mr. Forgues (as I will explain below, there are serious problems with all of their memories); the hearsay statements made by Mr. Deliva to PC Brock and the paramedic Mr. Angus; the evidence of Mr. MacKinnon; and to a limited extent, evidence from other patrons still inside the bar (regulars who were helping close up). Because my findings in relation to these events are bound up with my findings about the credibility and reliability of Mr. MacKinnon’s evidence, I simply summarize the evidence here. My findings about the events immediately preceding the stabbings are below in my analysis of the legal issues and more contested factual issues. I note that my findings regarding the credibility of Mr. MacKinnon’s evidence as it relates to the NCR defence turn in part on significant inconsistencies between his trial evidence and some of his statements to the defence experts about the events of the stabbing, and events after the stabbing. In the interests of avoiding repetition, my summary of his evidence below focuses on the account of events he gave at trial. I address the inconsistent statements later in my analysis.

(a) The video evidence

[227] On the video, as I have noted, at time stamp 02:03:19, Mr. Spilchen, Mr. Deliva, and Mr. Forgues return to the parking lot of the Working Dog from the direction the taxi had left in (appearing from behind the fence at the west edge of the Working Dog parking lot). Mr. MacKinnon, Mr. Dimitruk, and Mr. Williams are in Mr. Williams’ car. Mr. Spilchen’s group walks towards the car, with Mr. Deliva in front by some distance. I find that Mr. Deliva appears to be looking towards the car, and appears to be speaking. As they approach, Mr. MacKinnon and Mr. Dimitruk exit the car, leaving the doors on the passenger side open. Mr. Dimitruk walks over to them, and pats Mr. Spilchen on the back. Mr. MacKinnon walks towards them, but stands back a short distance.

[228] At approximately 02:04:07 time stamp, Mr. Spilchen, Mr. Deliva, Mr. Forgues, and Mr. Dimitruk walk a distance away from Mr. MacKinnon, and then stand beside a fenced area at the edge of the parking lot. They appear to be talking. Mr. MacKinnon is standing back a short distance for a short time, and then walks closer at approximately 02:04:18 time stamp, but is still standing back a bit from the other men.

[229] I note that there are some gaps in the video footage here, which according to DC Vuong were gaps in the original footage. Thus, the video of this portion of events is not entirely continuous. [^4]

[230] At approximately 02:04:38, Mr. MacKinnon moves a bit forward, and Mr. Forgues comes over closer to him, so that all five men are standing near each other. There is a short gap in the video between 02:04:40 and 02:04:44. In this gap, Mr. Spilchen moves closer to Mr. MacKinnon (I find that Mr. Spilchen moved during the gap because he is in a different position, but Mr. MacKinnon is in the same position).

[231] Mr. Spilchen appears to begin speaking on his phone at approximately 02:04:52 (he puts the phone to his ear). At time stamp 02:04:54 on the video, all five men appear to be speaking (Mr. Williams is still in the driver seat of his car). There is a gap in the video from 02:05:00 to 02:05:18. During that gap Mr. MacKinnon has moved slightly away from the other four men. Mr. MacKinnon is somewhat to the left of the other men, but closest to Mr. Spilchen. Mr. MacKinnon has both of his hands in his pockets Mr. Spilchen still has his phone to his ear. Mr. Dimitruk, Mr. Deliva, Mr. Forgues, and Mr. Spilchen appear to be speaking. Mr. Dimitruk appears more engaged with Mr. Spilchen’s group – he is speaking and gesturing with his arms. Mr. Spilchen is off the phone at approximately 02:05:32. He appears to be speaking with Mr. Dimitruk at this point.

[232] From approximately 02:05:45 time stamp, Mr. Spilchen turns his body a bit towards Mr. MacKinnon, and the two of them appear to be speaking. Mr. Spilchen turns a bit more (time stamp 02:05:48), and he and Mr. MacKinnon are facing each other, and appear to continue speaking. Mr. Dimitruk, Mr. Forgues, and Mr. Deliva are just to the right, and appear to be speaking to each other. The group appears to be speaking. While Mr. MacKinnon is speaking to Mr. Spilchen, Mr. MacKinnon extends his right arm to the side, and then reaches forward and he and Mr. Spilchen appear to briefly shake hands (time stamp 02:06:13-02:06:17). At that point Mr. Spilchen turns away from Mr. MacKinnon, and back towards Mr. Dimitruk, Mr. Forgues, and Mr. Deliva (02:06:18). Mr. MacKinnon is a short distance away from the other men.

[233] Between approximately time stamp 02:06:16 and 02:06:29 on the video, Mr. Williams pulls his car up a couple of metres. The passenger side doors are still open. After pulling the car up, Mr. Williams gets out and goes around to shut the doors on the passenger side. Mr. Williams and the vehicle are some distance away from the other men. I find it to be at least a few metres, estimating based on the size of the car and the men on the video.

[234] At 02:06:40, the men have moved so that Mr. MacKinnon and Mr. Dimitruk are furthest to the left. Mr. Dimitruk is conversing with Mr. Spilchen, Mr. Deliva, and Mr. Forgues. He gestures with his arm, and pats Mr. Spilchen on the shoulder. Mr. MacKinnon, who is behind Mr. Dimitruk, puts his hand on Mr. Dimitruk’s shoulder (02:06:42), then turns to face Mr. Williams, and steps away from the group of men, towards Mr. Williams (02:06:45), and appears to speak to Mr. Williams.

[235] Mr. Dimitruk is standing near Mr. Spilchen, Mr. Deliva, and Mr. Forgues. At approximately time stamp 02:06:55, Mr. MacKinnon walks back to the group of men. At this point Mr. Williams is behind him a short distance and is now also facing the group of men. From approximately 02:02:00 to 02:07:04, I find that Mr. Williams appears to be saying something to the group of men and Mr. Deliva appears to be speaking back to Mr. Williams. Mr. Williams’ back is to the camera, but he is gesturing with his right hand, and from the movement of his head, and the reaction of the other men, in particular Mr. Deliva, I infer that both Mr. Williams and Mr. Deliva are speaking, and appear to be engaged with each other (02:06:54 to 02:07:04). Just before and after this time, Mr. Dimitruk and Mr. Deliva appear to be speaking, and both are gesturing with their arms quite dramatically. Mr. Williams then turns and walks back towards his car. Mr. MacKinnon walks with Mr. Williams towards the car.

[236] At time stamp 02:07:07, Mr. MacKinnon is close to Mr. Williams’ car, and a short distance away from the other men. He turns and looks back towards them. At this point, Mr. Deliva and Mr. Dimitruk move to the right a bit. I find that they are actively engaged in conversation. Mr. Dimitruk is using his right hand to touch Mr. Deliva’s left shoulder as they speak. Then Mr. Dimitruk moves towards Mr. Spilchen, and Mr. Spilchen moves towards him. They appear to be speaking. Mr. Dimitruk is also turning his head at times and appearing to speak to Mr. Deliva. At this point, approximately time stamp 02:07:11, Mr. MacKinnon approaches closer to the other men again. Mr. Forgues moves a little to the left with Mr. Dimitruk (around time stamp 02:07:15). Mr. Dimitruk seems to be speaking very actively to Mr. Forgues, and is gesturing with his arm.

[237] At this point, Mr. MacKinnon walks to the right, towards Mr. Deliva (02:07:15). Mr. MacKinnon has his right arm up, with an open hand, palm facing out as he walks over (the type of gesture one might make to get someone’s attention, or to ask them to be quiet). I find that Mr. MacKinnon, Mr. Spilchen, and Mr. Deliva appear to be speaking. Mr. Spilchen comes over close to Mr. Deliva and Mr. MacKinnon. I find that Mr. MacKinnon, Mr. Deliva, and Mr. Spilchen are speaking. The positioning is that Mr. Spilchen and Mr. Deliva are side by side. Mr. MacKinnon is facing them. The other men are a short distance away.

[238] At 02:07:18 time stamp, Mr. MacKinnon places his right hand on Mr. Deliva’s left shoulder. Mr. MacKinnon, Mr. Deliva, and Mr. Spilchen still appear to be speaking. Mr. Spilchen and Mr. Deliva are still side by side, and facing Mr. MacKinnon. In particular, I can see that Mr. Spilchen is speaking and gesturing with his left arm. Mr. MacKinnon then removes his hand as he appears to punch Mr. Spilchen in the stomach with his left hand (02:07:21). He then places his right hand on the shoulder of Mr. Deliva and appears to punch him in the stomach with his left hand (02:07:23). This happens very suddenly. I can see no physical aggression from either Mr. Spilchen or Mr. Deliva just prior to the stabbing (or indeed, earlier). The two punching motions are very quick, within seconds of each other. In terms of what is visible on the video, one would not be able to tell from this portion of the video alone that a knife was involved. It looks like a punching motion. I find that one can see from the body language that there is some kind of verbal dispute going on. The stabbing seems to come out of nowhere.

[239] During the time that Mr. MacKinnon, Mr. Deliva, and Mr. Spilchen were over a distance to the right and the stabbings happened, Mr. Williams, Mr. Dimitruk, and Mr. Forgues are over near Mr. Williams’ car also speaking. At one point, Mr. Dimitruk turns and appears to be speaking towards Mr. MacKinnon, Mr. Deliva, and Mr. Spilchen.

[240] Mr. MacKinnon stands back from Mr. Spilchen and Mr. Deliva for a couple of seconds and appears to be looking towards them. Mr. Spilchen and Mr. Deliva take a few seconds to react to being stabbed. Mr. Spilchen walks closer to St. Clair, and then to the west, out of view behind the fence (into the neighbouring parking lot). Mr. Dimitruk comes over and positions himself between Mr. Deliva and Mr. MacKinnon. Mr. Forgues also approaches. Mr. Williams gets into his car and drives away to the east. Mr. MacKinnon walks to the east out of view of the Working Dog security cameras, looking back towards the direction of Mr. Spilchen and Mr. Deliva, and then starts running (the camera inside the bar looking out shows Mr. MacKinnon running east from 02:07:40 time stamp). At this point, Mr. Deliva is holding his stomach, and he walks to the west, out of view behind the fence (to the neighbouring parking lot).

[241] Mr. Dimitruk and Mr. Forgues stay with Mr. Spilchen and Mr. Deliva and go behind the fence out of view for a time. Shortly after that, Mr. Dimitruk is seen to run east on St. Clair (there is a gap in the bar’s security video from the outside camera from 02:08:46 to 02:09:09. Just prior to that gap, one can see a baseball hat matching the one Mr. Dimitruk was wearing moving east behind the fenced area from the neighbouring parking lot). Footage from a camera inside the bar looking out shows a male with a dark baseball cap, white shirt, and dark pants run east on St. Clair at approximately time stamp 02:08:58 to 02:09:02. Footage from a neighbouring property shows the same man continue to run east, and then cross the street and go down the first side street to the south (Chine Drive). Although the image is blurry, I find that this is Mr. Dimitruk. It is consistent with the time stamps on the other portion of the video, generally consistent with Mr. Dimitruk’s size and clothing, and was not in dispute between the parties.

[242] I find that based on the video, the tenor of the interaction between the two groups is different after Mr. Spilchen’s group returns after leaving in the taxi. One can see this in the body language and movements of the men. In particular, in the last 20 to 25 seconds prior to the stabbings (from around time stamp 02:07:00), several of the men appear to be speaking to each other in a heated way. This includes Mr. Williams, Mr. Dimitruk, Mr. Spilchen, and Mr. Deliva. Mr. MacKinnon and Mr. Forgues also appear to be speaking in this last 20-25 seconds, but it is not as clear from their body language if they are heated too. Because there is no sound, one cannot draw a firm conclusion from the video alone about what is happening. But I find that the body language of the men is different than what was visible earlier.

[243] I find that it is also clear from the video that there is no physical violence from either Mr. Spilchen or Mr. Deliva immediately preceding the stabbings.

(b) Mr. Dimitruk’s evidence about the stabbings

[244] Mr. Dimitruk testified that he remembered being outside the bar with Mr. MacKinnon, Mr. Williams, and some other people. He thought that there were “around” seven people outside (in total). He testified that he remembered a little argument, but then said it was not even an argument, just yelling. He could not recall who was yelling, or anything else that was happening when he heard the yelling. The yelling came from somewhere in the parking lot. Mr. Dimitruk testified that he did not recall anyone make any threats outside the bar. He also testified that he did not see any physical fights between anyone outside the bar.

[245] In cross-examination, Mr. Dimitruk agreed that he had known Mr. MacKinnon for a long time, and would recognize his voice. The person who yelled was not Mr. MacKinnon, nor was it Mr. Dimitruk. Mr. Dimitruk agreed he had no memory of the words said in the yelling.

[246] Mr. Dimitruk was shown various portions of the video of events outside the bar and asked about them, including, for example, his own actions at various points. He was not able to say what was happening, and the video did not refresh his memory.

[247] Mr. Dimitruk testified that he remembered seeing one person (a male) on the ground by the front doors of the Working Dog, after he heard the yelling. Mr. Dimitruk estimated that the yelling was two minutes before he saw the man on the ground. He did not see the man go to the ground, or know how they ended up on the ground. Mr. Dimitruk testified that he did not know what happened to the man on the ground, but then said that he “got stabbed”. The man on the ground was bleeding. He did not recall the man on the ground saying anything. A friend was helping the man on the ground. Mr. Dimitruk did not recognize the man on the ground or his friend.

(c) Mr. Deliva’s evidence about the stabbings

[248] As I have noted above, Mr. Deliva testified that he did not really remember what happened after they left the Working Dog. He testified that he remembered walking and talking to a group of guys, and he remembered his best friend and himself getting stabbed. He could not remember anything about who the other group of guys were. He could not provide any description of them, and was not even sure if they were all men. He could not remember any of the content of the conversation with this group of guys. He said he had no recollection of what anyone said. Yet, when he was asked in examination in chief if his group had any arguments with the other group, he said, “No, we did not. No, I did not”. Despite his professed lack of memory of the content of the conversation with the other group, he said in examination in chief that he did not make any threats to the other group, and he did not hear Mr. Spilchen or Mr. Forgues.

[249] Despite his lack of memory of any of the conversation with the other group of men, Mr. Deliva testified in examination in chief that he did not hear anyone, including himself and Mr. Spilchen make any mention of a firearm. He testified that he never heard anyone including himself or Mr. Spilchen say they would shoot anyone or come back with a weapon.

[250] Despite his professed lack of memory, he said in examination in chief that prior to the stabbing he did not engage in any physical altercation with the other group, nor did he see Mr. Spilchen or Mr. Forgues do so.

[251] In cross-examination, Mr. Deliva agreed that he did not remember last call, and he did not remember leaving the Working Dog. As I have noted above, he denied that when they came back to the Working Dog parking lot after leaving in the taxi, they were looking for trouble. He said that his group of friends is not confrontational. He said he could not see them doing that (although he did not have a memory). Defence counsel asked about his answers in examination in chief that there was no argument or threats outside the bar in the parking lot, and Mr. Deliva said in fact the honest answer was that he did not remember.

[252] Defence counsel then suggested again that Mr. Deliva and his group were looking for trouble when they came back to the parking lot. Mr. Deliva responded, “I don’t remember, so I disagree”. Defence counsel then suggested to Mr. Deliva that when they came back somebody in his group said something about getting a gun, going and getting a gun, about somebody getting shot, something of that nature. Mr. Deliva responded that he disagreed because he knows he and his friends hate guns; they would never bring that up; he and his friends don’t talk like that. He said he did not remember, but that he and his friends were not the kind of people to get into altercations.

[253] Mr. Deliva was asked about his recollection of the stabbing. He said it was all very quick. He remembered Mr. Spilchen grabbing his stomach. Within a second of looking over he (Mr. Deliva) was also stabbed. Mr. Deliva testified that he did not see anything happen to Mr. Spilchen before he grabbed his stomach.

[254] Mr. Deliva testified that he was stabbed in the mid-left of his abdomen, below his lowest ribs. He did not know at first that a knife had stabbed him. He looked down and saw blood, and saw something was hanging out from his abdomen area. He remembered putting pressure on the wound with one or both hands. He was in the parking lot adjoining the Working Dog parking lot at that point, lying down. Mr. Deliva testified that he remembered Mr. Forgues freaking out after the stabbings. He remembered Mr. Forgues went to attend to Mr. Spilchen, who looked “pretty lifeless”.

[255] Mr. Deliva testified that he could not recall anything about the person who stabbed them or that person’s clothing. Except he said that he remembered someone who was a little heavier and taller than he was. Mr. Deliva testified that he saw he was stabbed with some sort of blade. He said it was hard to explain, but it was dark, like a darker black blade. He said it was a little bigger than a normal swiss army knife, like 3, 4 or 5 inches. He did not observe the handle. He had no recollection of anything happening prior to the stabbing.

[256] Mr. Deliva remembered lying on the ground. He did not know if he “dazed” in or out. He remembered his clothes being cut off in the parking lot. He remembered hearing sirens. But he could not remember who attended or how many first responders there were. His only memory of speaking to first responders was that he recalled someone asking his name in the parking lot. He had a memory of someone talking to him in an ambulance, but could not remember what the person was saying. After that he had no memory until he woke up later in hospital (and he later found out that he had been in an induced coma for a week).

[257] Crown counsel showed Mr. Deliva various portions of the bar security videos towards the end of his examination in chief in order to try to refresh his memory. Mr. Deliva was able to identify himself, Mr. Spilchen, and Mr. Forgues on the videos (which was not in dispute), but the videos did not refresh his memory about the events in them.

(d) Mr. Forgues’ evidence about the stabbings

[258] Mr. Forgues did not have a clear memory of the events immediately preceding the stabbing. When he was asked early in examination in chief what else he remembered from the Working Dog after ordering drinks when they first arrived, he said he remembered Mr. Spilchen and Mr. Deliva playing darts, he remembered Mr. Spilchen talking to a man outside[^5], and he remembered Mr Deliva telling him he’s been stabbed, in that order.

[259] As noted above, Mr. Forgues described the three men in the other group as the first man, the second man, and the third man, and gave some physical description. Based on the descriptions and the actions he attributes to each, I find that the first man was Mr. Williams, the second man was Mr. Dimitruk, and the third man was Mr. MacKinnon.

[260] Mr. Forgues testified that he recalled that the first man (i.e., Mr. Williams) at some point ran by him, picked something up and ran back, got in his car, and drove away. This was before the stabbing. He also recalled seeing the first man open the trunk of the car. This was before he ran by Mr. Forgues, and before Mr. Forgues and his group left in the taxi. Later in examination in chief, Mr. Forgues said it was after he saw the third man push Mr. Spilchen and Mr. Deliva that the first man got in the car and drove off.

[261] Mr. Forgues testified that he did not recall if there was conversation between his group and the other group of men after his group came back from the taxi. After being shown a portion of his police statement, he testified that after they got out of the taxi, his group walked up to the other men, Mr. Deliva was talking to one of the other men, and that he was not sure what it was about, and he could not remember which man Mr. Deliva was speaking to. He testified that nothing stuck out in his mind about Mr. Deliva being aggressive or threatening. Mr. Forgues testified that neither he, nor Mr. Spilchen, nor Mr. Forgues made any threats or said anything about a weapon before he saw the third man push Mr. Spilchen and Mr. Deliva. He testified that he did not hear anyone make a threat about a gun. In cross-examination, Mr. Forgues agreed that when they got out of the taxi and came back, Mr. Deliva said something to the other group of men. He agreed that in his mind that was why Mr. Deliva got out of the taxi. He agreed he had no memory at all of what Mr. Deliva said to the other group of men. He agreed whether it was good, bad, happy, or sad he had no memory of what Mr. Deliva said. In re-examination, he claimed that he would have remembered if someone had said something about a gun.

[262] Mr. Forgues was shown the portions of the video leading up to the stabbing. They did not assist him to refresh his memory about any of the conversation prior to the stabbing.

[263] Mr. Forgues testified that it looked like the third man (i.e., Mr. MacKinnon) pushed Mr. Deliva, and after Mr. Spilchen stepped up, he pushed Mr. Spilchen as well. Later in examination in chief he reversed the order, saying that the man pushed Mr. Deliva and then pushed Mr. Spilchen. He was asked if he could describe what the pushes looked like. He said he could not recall, and he did not remember what part of the body of Mr. Spilchen and Mr. Deliva was pushed. He testified that the pushing he saw was before Mr. Deliva said he had been stabbed. He could not remember if the third man had any other physical contact with Mr. Spilchen or Mr. Deliva.

[264] In examination in chief, Mr. Forgues testified that he did not hear either Mr. Spilchen or Mr. Deliva make any threats, either to the third man, or to the other two men, before the third man pushed them. He testified that he did not hear Mr. Spilchen or Mr. Deliva say anything about a weapon or a gun. He testified that he did not remember if Mr. Spilchen or Mr. Deliva was yelling prior to being pushed. He could not remember if he was yelling before the third man pushed Mr. Spilchen and Mr. Deliva. He could not remember if anyone in his group was talking to the other three men when the other three men got out of the car.

[265] The second man (the black male with the afro, i.e., Mr. Dimitruk) stayed after Mr. Deliva told Mr. Forgues he had been stabbed. He seemed to be talking to himself, waving his arms, and fidgeting. Once Mr. Forgues was on the phone with police, that man “took off”.

[266] Mr. Forgues remembers Mr. Deliva telling him he had been stabbed. He remembered Mr. Spilchen in the parking lot next to the Working Dog parking lot, lying on the ground. He ran over to check on Mr. Spilchen. He seemed like he was losing consciousness. Mr. Forgues testified that he called the police. He ran back to the bar and asked for help, and the people inside did not want to open the door initially. In cross-examination, he agreed that he said some swear words when he was asking for help at the bar. He tried to hold their wounds and find help. Mr. Deliva had an injury to his abdomen. Mr. Spilchen had an injury to his chest. He tried to keep Mr. Spilchen awake, by calling his name and shaking him, but Mr. Spilchen did not respond. He could not remember if Mr. Spilchen was still conscious when he called 911, or when he finished the call with 911.

[267] Mr. Forgues testified that the man who he saw push Mr. Spilchen and Mr. Deliva was no longer present when Mr. Forgues called 911. He did not see what he did after the push.

(e) Mr. Deliva’s hearsay statements about the stabbings

[268] Because Mr. Deliva had no memory of the events immediately preceding the stabbings, Crown counsel tendered hearsay statements by Mr. Deliva made to two first responders at the scene in the parking lot, PC Tyler Brock and the paramedic David Angus. I admitted the hearsay statements pursuant to the common law spontaneous exclamation exception in an oral ruling given April 29, 2021, with reasons to follow. I release those written reasons separately today (R. v. MacKinnon, 2021 ONSC 6236). As I noted in my oral reasons, many of the issues argued by the defence for not admitting the statements are factors that I accept have relevance to ultimate reliability of the hearsay statements, and I consider them below in my analysis. At this point, I summarize the evidence of PC Brock and Mr. Angus about the statements and the circumstances in which they were made.

[269] PC Brock was on the road in uniform in a marked scout car the night of June 15/16, 2018, with a partner, PC Bolduc. They received information from dispatch at approximately 2:05 a.m. about the stabbings. They attended at the scene. PC Brock initially testified that they arrived at 2:06 or 2:07 a.m. He was later shown his in-car video, which showed that they arrived at 2:08 a.m. I pause to note that in light of the agreement about the time stamps on the Working Dog security videos, this would have been about five minutes after the stabbings. They were the first emergency responders to arrive on scene.

[270] PC Brock ran over to the male who he now knows to be Mr. Deliva. Mr. Deliva was lying on the sidewalk at the edge of St. Clair, on the property to the west of the Working Dog. PC Bolduc attended to Mr. Spilchen, who was further to the west in the parking lot. Mr. Deliva was lying on the pavement, rolling back and forth, and grabbing his stomach. He had an injury to his left side, and was bleeding all over his clothes and hands. To PC Brock, it appeared that Mr. Deliva was in obvious trauma.

[271] Because PC Brock had received information from dispatch about a stabbing, he tried to give medical assistance, and find out from Mr. Deliva what happened. PC Brock applied pressure to the wound and spoke to Mr. Deliva. In his notes, PC Brock has recorded that there was a large crowd outside when he arrived. He had also testified to this effect at the preliminary inquiry. But having refreshed his memory with the video prior to testifying, he said the crowd may not have been there at the outset. He was focused on Mr. Deliva.

[272] PC Brock began asking Mr. Deliva “rapid questions”. Mr. Deliva was dipping in and out of consciousness for much of the time PC Brock spoke to him. Because of the seriousness of the injury, and the fact that Mr. Deliva was losing consciousness, PC Brock was concerned that he may not have much time to speak to Mr. Deliva. For this reason, he asked a lot of questions quickly, and he also felt that what Mr. Deliva was saying was extremely important.

[273] PC Brock testified that Mr. Deliva said the person who stabbed him was a white male with a white T-shirt. He said he was at the bar with friends drinking. He said they were talking outside the bar after, and a male approached them. He said the male seemed to have a problem with him and his friend. He did not know why. He said he had not spoken to the male in the bar. He said that out of nowhere, his friend and him got stabbed. PC Brock testified that he tried to ask Mr. Deliva about the knife. All he could get from Mr. Deliva was that it was a black knife. And Mr. Deliva said the man ran away. I note that this summary is based on PC Brock’s evidence about the utterances in examination in chief.

[274] In cross-examination, PC Brock agreed that the notes he made in his notebook of what Mr. Deliva said were not in quotations, except for one utterance (I note that what the one utterance that was in quotation marks in PC Brock’s notes was not elicited in evidence). He agreed that his notes of what Mr. Deliva said were not word for word the exact words Mr. Deliva said, except for the one utterance in quotation marks. In cross-examination, PC Brock agreed that some of the utterances I have summarize in the preceding paragraph were in his notebook, and some were in the supplementary report and not in the notebook notes. For example, his notebook notes did not include that Mr. Deliva said he was at the Working Dog with a few friends having drinks. His notebook notes did not say anything about Mr. Deliva saying something about last call. His notebook notes did not say anything about Mr. Deliva saying he and his friends were talking outside the bar. His notebook notes did not say anything about Mr. Deliva saying he was approached by the male after he (Mr. Deliva) has exited the bar. His notebook notes did not include that Mr. Deliva said the stabbing came out of nowhere. PC Brock agreed that the supplementary report had more detail than his notes about the utterances from Mr. Deliva, and that he made the supplementary report approximately six hours after he had tended to Mr. Deliva at the scene and heard the utterances.

[275] PC Brock agreed in cross-examination that Mr. Deliva did not say anything to him about him and his friends having left the Working Dog in a taxi and returned to the parking lot within less than a minute of leaving in the taxi. He agreed that Mr. Deliva did not say anything to him about approaching the man in the white shirt while the man was sitting in a car. PC Brock agreed in cross-examination that his impression from what Mr. Deliva said to him was that Mr. Deliva and his friend were stabbed when they were about to leave the bar for the night.

[276] PC Brock testified that this conversation with Mr. Deliva began immediately when he arrived on the scene. He testified that from the moment he arrived, Mr. Deliva was in and out of consciousness. He was trying to keep Mr. Deliva awake, both for medical reasons, and to try to get as much information as possible from him. During the time PC Brock was speaking to him, Mr. Deliva was saying not to let him die.

[277] PC Brock testified that within a minute or two of their arrival on the scene, a large crowd started to build, maybe 15 to 20 people. He heard yelling from near where his partner was, people disagreeing, yelling about what had happened, and about what the suspect’s description was. Among the people yelling there was disagreement about the description of the suspect. PC Brock continued to focus on Mr. Deliva, but because he did not know who these people were, or if anyone involved in the stabbing was still at the scene, he also had concerns for officer safety and the safety of Mr. Deliva. In cross-examination, PC Brock agreed that the people yelling sounded upset and angry, and like some of them had been drinking.

[278] Paramedics arrived. Paramedics began to treat Mr. Deliva and Mr. Spilchen. PC Brock testified that he remained near Mr. Deliva as paramedics treated him. He helped as necessary, and was still trying to speak to Mr. Deliva. PC Brock assisted the paramedics to put Mr. Deliva on a backboard, and went to the hospital in the ambulance with Mr. Deliva. Based on PC Brock’s in car camera video, Mr. Deliva was loaded into the ambulance for transport to hospital at approximately 02:21 a.m.

[279] PC Brock testified that during transport to hospital, Mr. Deliva was very paranoid, was dipping in and out of consciousness, and looked very scared. PC Brock continued to try and speak to him. Mr. Deliva lost consciousness and did not regain consciousness until about two to three minutes before they arrived at the hospital.

[280] PC Brock had no note of the exact time they arrived at Sunnybrook Hospital (I note that the medical records from the hospital place the time as approximately 2:35 a.m.). At the hospital, Mr. Deliva was rushed into a trauma room. PC Brock stood by with Mr. Deliva. He had located a health card in Mr. Deliva’s pocket earlier, but it was in the name of Paul Spilchen. He gave the health card to PC Wong, the officer who was with Mr. Spilchen. Mr. Deliva’s clothing and personal effects were removed by hospital staff. PC Brock seized those items as evidence. Mr. Deliva was then taken to an operating room. PC Brock stayed with Mr. Deliva until he went into the operating room. PC Brock waited outside the operating room. He had no further involvement with Mr. Deliva. PC Brock left the hospital shortly after 7:00 a.m. At the station, he advised the investigating officers of his involvement. He then prepared a supplementary report on the computer detailing his involvement.

[281] PC Brock made notes of the statements from Mr. Deliva in two places: his notebook, and a supplementary report that he prepared later in the morning of June 16, 2018, once he was back at the division. PC Brock initially testified that he made notes in his notebook of the events from the parking lot (including the statements) maybe in the ambulance on the way to the hospital, or at the hospital. He said he made his notes as soon as his immediate help with Mr. Deliva was not required. However, in cross-examination he agreed that his notes about the statements were all made at the hospital, sometime after 2:51 a.m., as there were no time entries in his notebook between 2:05 a.m. when they heard the dispatch, and 2:51 a.m. when he gave the health card to the officer dealing with Mr. Spilchen. He testified that he prepared the supplementary report when he got back to the station, after he was done at the hospital, around 8:00 a.m. on June 16, 2018.

[282] In cross-examination PC Brock agreed that he did not make notes of the questions he asked Mr. Deliva.

[283] PC Brock had a radio on his person that night, but for some reason the microphone was not working. At the time he testified, he could not recall why it was not working. But said that in that time period sometimes there were battery problems.

[284] Paramedic David Angus was the other witness who testified to hearsay utterances from Mr. Deliva at the scene outside the Working Dog. That night, he was working with Ryan Silver as his partner. Mr. Silver was driving the ambulance, and Mr. Angus was the attendant. The attendant provides care to a patient when the ambulance is being driven by their partner. On scene both the driver and the attendant provide care to a patient.

[285] Mr. Angus and Mr. Silver were dispatched to attend at the scene of the stabbings. The information they received was that the injuries involved a penetrating trauma. In his experience, this usually means a shooting or a stabbing. They are often high acuity calls. They attended at the scene and arrived at 2:13 a.m. From PC Brock’s in car camera video, it can be seen that the ambulance that Mr. Angus was in arrived at approximately 2:13 a.m.

[286] When they arrived, police and another ambulance were already on scene. Mr. Angus saw one patient lying on the ground (Mr. Deliva) and being attended to by a paramedic (Don Meikle). Mr. Angus was aware that there was a second patient, but did not see him. Mr. Angus walked over to Mr. Deliva and Mr. Meikle. Mr. Meikle briefed him about the information he had about what had happened, and Mr. Deliva’s injuries (a stab wound to the upper left quadrant of the abdomen). In cross-examination, Mr. Angus agreed that it was possible that Mr. Meikle may have told him something about how Mr. Deliva was injured in that briefing, but that it would have been a very brief report. He did not remember the exact words Mr. Meikle used.

[287] Mr. Angus then began treating Mr. Deliva. As part of that process, his practice is to obtain baseline information (by observation and questioning) regarding the patient’s level of consciousness, identifying any injuries, and finding out what happened (the incident history). Mr. Angus testified that the reason he asks a patient what happened is because it can give a better idea of what the injury may entail, and as a result can have an impact on decisions about the course of treatment. In addition, the patient’s response is information that he considers in assessing the patient’s baseline level of alertness. For this reason, what Mr. Deliva said to him was important to Mr. Angus, and it was important to him to record it accurately. Typically, the question he will ask a patient to elicit this information is, “what happened?”.

[288] Mr. Deliva was alert and oriented when Mr. Angus arrived. He was awake and able to talk. His airway was clear. From that point, as a paramedic, they constantly monitor for a change in the patient’s baseline.

[289] Mr. Angus observed a stab wound to the upper left quadrant of Mr. Deliva’s abdomen. It was bleeding enough that he could not get an Asherman seal to remain stuck to the wound (such a seal is used to allow air to escape the chest cavity, but not to enter, in order to prevent the lungs collapsing). Mr. Angus applied a first Asherman seal at 2:15 a.m. By 2:25 a.m., that seal was no longer sticking. Mr. Angus testified that at the time he was at the scene with Mr. Deliva, he assessed his injuries as serious and potentially life threatening.

[290] When he asked Mr. Deliva what happened, Mr. Deliva told Mr. Angus that he had been stabbed. He told Mr. Angus that he had been in an argument and someone had stabbed him. Mr. Angus initially said he did not recall Mr. Deliva telling him the number of people involved in the argument. When Crown counsel refreshed his memory by showing him a portion of his statement to police (given October 11, 2018 – about four months after the events), Mr. Angus said: “it looks like the argument was with a group of people”. Mr. Angus initially said that Mr. Deliva did not tell him what the person did or where he went after he stabbed him. When Crown counsel refreshed his memory with his July 2, 2018 Incident Report, Mr. Angus said, “I’ve written down here that ‘some people got a knife, stabbed him and his friend, before running off’”. When asked if these portions he was refreshed on were from his memory, he said his memory was refreshed, but he also said that without his notes, three years later, it was very difficult to remember the exact words Mr. Deliva said. Mr. Deliva did not tell Mr. Angus who he had been in an argument with, and Mr. Angus did not ask. Mr. Deliva did not tell Mr. Angus who stabbed him, and Mr. Angus did not ask. Mr. Angus also asked Mr. Deliva what he was stabbed with. He asked this because the response may give a better idea of potential internal injuries. Mr. Deliva said it was a knife, 6 inches long.

[291] Mr. Angus agreed in cross-examination that Mr. Deliva did not say anything to him about how the argument started, who instigated the argument, or any other details about the argument. In cross-examination, Mr. Angus agreed that Mr. Deliva did not tell him that at the end of the night he had left the bar in a taxi and then come back. In cross-examination, Mr. Angus said he did not ask any questions to clarify if 6” was the length of the blade or the full length of the knife from end to end. Mr. Angus asked if the knife was serrated. Mr. Deliva said he was not sure. Mr. Angus agreed in cross-examination that Mr. Deliva said nothing to him about the description of the stabber, or anyone in the group with the stabber.

[292] Mr. Angus agreed in cross-examination that he recalled a police officer near Mr. Deliva when he started providing medical care to Mr. Deliva. That officer was right next to them assisting (I find that this was PC Brock). There were other officers on the scene, but not as close. Mr. Angus did not recall the officer asking Mr. Deliva any questions once Mr. Angus had taken over treating him on scene.

[293] Before leaving the scene, Mr. Angus placed a cervical collar on Mr. Deliva’s neck as a precaution in case there was a spinal cord injury. Mr. Deliva was placed on a spinal board and lifted onto a stretcher and placed in an ambulance. They left the scene to travel to the hospital at approximately 2:22 a.m. In the ambulance, Mr. Angus attempted to reapply the Asherman seal to the wound, but was unsuccessful. He then replaced the seal with an abdominal pad and tape (essentially gauze to soak up the bleeding).

[294] Mr. Angus continued to speak to Mr. Deliva until they transferred his care at the hospital, in order to assess his level of consciousness and observe any changes in his level of consciousness. Mr. Deliva did not remain conscious the whole time that Mr. Angus was with him. On route to the hospital Mr. Deliva’s level of consciousness deteriorated. This was indicated at 2:32 a.m. in the notes, where his Glasgow Coma scale was 3. At that point, Mr. Deliva was unconscious, but he still had a strong carotid pulse. This was two minutes before they arrived at the hospital, which was at 2:34 a.m., according to Mr. Angus.

[295] Mr. Angus made notes of the utterances from Mr. Deliva in two places. He prepared an “Ambulance Call Report” immediately after the call was completed, in the early morning hours of June 16, 2018. I take this to be within about 40 minutes after they arrived on the scene. In addition, he prepared an “Incident Report” on July 2, 2018, about two weeks after the events.

[296] In examination in chief, Mr. Angus said that he remembered attending the call involving Mr. Deliva, and that reviewing the Ambulance Call Report and the Incident Report prior to testifying had refreshed his memory, but that he did not recall anything outside of what was in those documents. However, in cross-examination, Mr. Angus agreed that at the time he was testifying he did not have a specific recollection about the things that Dr. Deliva said to him on June 16, 2018. No submissions were made to the court in relation to past recollection recorded as it relates to the hearsay statements of Mr. Deliva to Mr. Angus. As I explain below, because my conclusion is that I have concerns about the ultimate reliability of the statements to PC Brock and to Mr. Angus, it is not necessary for me to consider the issue of past recollection recorded.

(f) Mr. Carter’s evidence about the stabbings

[297] Eric Carter testified that he and his friends stayed at the bar until closing. Because they were regulars, they were allowed to stay in the bar after the door was closed and locked. They helped clean up and were finishing their drinks. During this time, he saw outside what looked like a conflict or an argument in front of the Working Dog’s windows in the parking lot. He recognized Paul Spilchen and his friends in the argument. He saw other people involved in the argument, but did not identify or give any description of the other people. In cross-examination, he agreed that what he saw involved two groups. One group was Mr. Spilchen and his friends, and he did not know who the other group was. To him it looked like a confrontation. He based this on past experience. In cross-examination, he elaborated what he meant by this, agreeing that he has seen people get into conflicts and fights at bars in the past, and that it draws the eye because the energy changes and how people move changes. He agreed that what he saw was a bunch of guys talking and maybe getting a little aggressive with each other, and some kind of scuffle. It looked like there was a fight about to happen. He could not hear what was being said by the people outside. In examination in chief, he said that he did not hear any shouting; but in cross-examination, he said he heard raised voices. But he did not see a fight, or see punches thrown, or see any weapons. He did not see anyone get stabbed. He was still cleaning up as he saw this outside, and “was just glancing at it here and there.” He also described what he saw as people “scattering”, and like everyone was “getting hyped up”, and like they were “panicking and running around”.

[298] I accept that Mr. Carter saw the events outside just prior to the stabbing. From the inside video of the bar, although the events in the parking lot where the stabbing took place are not visible, Mr. Carter can be seen heading for the exit door from 02:07:16, a few seconds before the stabbing happens. He is followed by Connor Hubble who appears to prevent Mr. Carter from exiting (by this time it is 02:07:21, contemporaneous with the stabbing of Mr. Spilchen).

[299] No one else who was inside the bar after closing who testified (i.e., Ms Neupauer and Ms Honsinger) saw anything outside before Mr. Forgues came and knocked on the door after the stabbing.

(g) Mr. MacKinnon’s evidence about the stabbings

[300] As noted above, in this summary of Mr. MacKinnon’s evidence of the events immediately preceding the stabbings and of the stabbings, I focus on his narrative at trial. In the interests of avoiding repetition, I address the evidence of his prior inconsistent statements about the events of the stabbings and afterwards later in my analysis of his credibility.

[301] Mr. MacKinnon testified that while he, Mr. Williams, and Mr. Dimitruk were in Mr. Williams’ car about to leave, he saw Mr. Spilchen, Mr. Deliva, and Mr. Forgues walk back to the Working Dog parking lot. He heard one of them yell out, “Hey Buddy” or something of that nature to get their attention. In examination in chief he said he did not know which man said that (however, I note that on the videos it is clear that Mr. Deliva is leading the way back). Mr. MacKinnon testified that whatever was said was loud enough for him to hear in the car, but not aggressive in tone. Mr. MacKinnon testified that he wondered if they had lost something.

[302] Mr. MacKinnon testified that he and Mr. Dimitruk got out of the car and approached the other men. He did not recall any conversation at that point. Mr. Dimitruk approached the other men in front of them. Mr. MacKinnon testified that he was still under the impression that the men were friends of Mr. Dimitruk.

[303] Mr. MacKinnon testified that then conversation started up between Mr. Dimitruk, Mr. Spilchen, and Mr. Deliva. Mr. Forgues was just standing there. Mr. MacKinnon testified that he could not recall the content of the conversation, but he testified that that Mr. Deliva and Mr. Spilchen were “feeding off” of one another, and getting louder as they were speaking.

[304] Mr. MacKinnon testified that he initially stood back from the conversation. But then he became “suspicious”, and went over an introduced himself to Mr. Spilchen. When asked why he was suspicious, Mr. MacKinnon said that Mr. Deliva and Mr. Spilchen were getting aggressive, and it was getting tense. He walked over to Mr. Spilchen. He introduced himself as “Mike”, and said that he lived in the neighbourhood, and they were not looking for any trouble. He then reached out to shake Mr. Spilchen’s hand, and the two shook hands. He felt that this cooled Mr. Spilchen down for a split second. Then it got tense again, and aggressive.

[305] Mr. MacKinnon testified that he then walked around Mr. Dimitruk to the middle of Mr. Dimitruk’s conversation with Mr. Deliva. He was waiting for a break in the conversation so that he could “wrap up” Mr. Dimitruk and head home. Mr. MacKinnon testified that he could not recall the conversation between Mr. Dimitruk and Mr. Deliva. But he remembered that Mr. Spilchen and Mr. Deliva were “feeding off each other”, and it was getting tense. Mr. MacKinnon testified that he did not know how long he stood next to Mr. Dimitruk and Mr. Deliva at that point. He testified that he could not say if it was five seconds or two minutes. He felt the situation was getting tense and aggressive. He felt anxious and suspicious.

[306] Mr. MacKinnon testified that he then heard one of Mr. Deliva or Mr. Spilchen say he was “gonna get shot” (or words to that effect). Mr. Deliva and Mr. Spilchen were side by side. Mr. MacKinnon testified that he did not know which of the men made the threat. Mr. MacKinnon testified that he did not know if the words were directed to him or to Mr. Dimitruk, but it was directed to one of the two of them, or both (he testified that he and Mr. Dimitruk were also side by side).

[307] Mr. MacKinnon testified that when he heard the threat fear went through his whole body. He started perspiring. His heart felt like “a rock in a box”. The energy was “vacuumed out of” him. He felt lethargic and like he wanted to sleep. He felt like he wanted to vomit. He felt like his feet were in quicksand. His past experience of being shot (discussed below) came into his brain, like he was going to get shot again. His vision became like he was looking through a straw, like he could not see anything in his peripheral vision. It seemed like everything was happening in slow motion. He tried to run, but it felt to him like his brain was not sending the correct message to his feet. He felt like he wanted to run, but like he couldn’t.

[308] Mr. MacKinnon testified that the next thing he remembered after that was trying to run away, and looking back over his shoulder expecting to see a gun in his face, but seeing nothing there. He testified that he remembered trying to see who was going to shoot him, but there was nothing there – the men were no longer there; Mr. Dimitruk was no longer there. Mr. MacKinnon testified that as he ran, his emotions were that he felt like he was going to die. He felt like he was going to have a heart attack. He felt like he could not get away, like his body was not working.

[309] Mr. MacKinnon testified that he did not remember stabbing Mr. Spilchen and Mr. Deliva (but did not deny that he did so). He testified that he did not intend to stab Mr. Spilchen or Mr. Deliva. He testified that he did not remember putting his hand on the knife after hearing the threat. He did not recall taking the knife out of his pocket, or opening the blade.

[310] It is not in dispute that at approximately 2:03 a.m. on June 16, 2018, Mr. MacKinnon stabbed Mr. Spilchen and Mr. Deliva, once each. This can be seen on the security camera video at 2:07:21 to 2:07:23.

(xi) Mr. MacKinnon’s actions after the stabbing

[311] For the most part, Mr. MacKinnon’s actions after the stabbing are not in dispute; however, the state of Mr. MacKinnon’s memory about those actions and the voluntariness of some of his actions afterwards is in dispute. I will begin with the video and documentary evidence, and then summarize Mr. MacKinnon’s evidence. As with the summary of Mr. MacKinnon’s evidence of the events of the stabbings, I summarize here his trial narrative of the events after the stabbings. I address the evidence of Mr. MacKinnon’s prior inconsistent statements about some aspects of the events after the stabbing in my analysis of his credibility later in my reasons.

[312] The video compilation from the scene (exhibit #20) includes video from other cameras to the east of the Working Dog. These videos show a white car continue east along St. Clair to the first side street, Vivian Road, and turn left (north) onto Vivian. In light of the time of this video, and what the car looks like, I find that this is Mr. Williams’ car with Mr. Williams driving.

[313] Shortly after Mr. Williams’ car is seen going east on St. Clair and turning up Vivian, a male matching Mr. MacKinnon’s description runs by on the sidewalk to the east, and turns left (north) up Vivian in the direction the car went. It is not in dispute that this is Mr. MacKinnon. Given the timing and the appearance of the man, I am satisfied that it is him.[^6]

[314] Mr. Dimitruk testified that Mr. MacKinnon and Mr. Williams left the parking lot in Mr. MacKinnon’s car (I understood this to be after Mr. Dimitruk saw the man on the ground, but it was not made expressly clear in the evidence). He said he saw them both get into the car and leave. He did not have any discussion with them before they left. Based on the security video from the Working Dog, Mr. Dimitruk is wrong about having seen Mr. MacKinnon and Mr. Williams leave the parking lot together in the car.

[315] Mr. Dimitruk testified that he stood there and did not know what to do. Some people were helping the man on the ground, who Mr. Dimitruk thought were his friends. The police started coming. Mr. Dimitruk left and went home. He estimated that he left sometime after 2:20 a.m. Based on the security video from the Working Dog, Mr. Dimitruk is somewhat off in his time estimate, as he is seen running at time stamp 02:09 a.m. (approximately 2:05 a.m. real time).

[316] It is an agreed fact that Mr. MacKinnon withdrew $200 at the ATM at a Shell gas station near Birchmount and St. Clair East at 2:36 a.m. This is confirmed by Mr. MacKinnon’s banking records (exhibit #3). Video filed as part of exhibit #20 includes the security camera video from inside the Shell station (i.e., the convenience store portion, where the ATM is located). The video shows Mr. MacKinnon enter the store and walk towards the ATM machine. He does a transaction at the ATM. I note that it is clear from the video that doing this transaction involves the usual steps of punching various buttons as needed to perform the transaction. He takes something from the machine (I infer this to be the $200, in light of the agreed facts and the surrounding circumstances). He also has a piece of paper in his hand, looks at it, and then he drops it on the floor. I infer this to be the ATM receipt. As Mr. MacKinnon walks from the ATM machine back to the door (to exit), I find that he appears to wave towards the person tending the cash register (One can see the location of the cashier in the initial camera view on the gas