Court File and Parties

COURT FILE NO.: 21-885 DATE: 2024/05/29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King – and – Brandon Lamoureux Accused

COUNSEL: Jamie Bocking & Goher Irfan for the Crown Mark Huckabone & Forest Poff-Smith for the Accused

HEARD: Oral decision given, May 6, 2024

REASONS FOR JUDGMENT

ANNE London-Weinstein J.

Overview:

1Jordan Plumb, the accused Brandon Lamoureux, and the deceased Gilbert Rumleskie spent the early days in July of 2021 drinking, smoking and socializing outside of Mr. Rumleskie’s room at the Pine Tree Motel in Eganville, Ontario.

2Jordan Plumb had recently moved into the Pine Tree Motel with his girlfriend Ashley Dombroskie. Gilbert Rumleskie had lived at the motel longer than any of the others in the group.

3Ms. Dombroskie’s mother Dawn Coulas was the former romantic partner of Mr. Rumleskie.

4The evidence established that Mr. Rumleskie was not over the relationship and was experiencing bouts of jealousy in the time shortly before his death.

5In particular, he was jealous of Brandon Lamoureux. The evidence indicated that he believed that Mr. Lamoureux had engaged in sexual activity with Ms. Coulas when on a trip to Pembroke with Mr. Plumb and Ms. Dombroskie.

6Tensions between Mr. Rumleskie and Mr. Lamoureux simmered in the hours before the stabbing of Mr. Rumleskie. Those tensions culminated in a fight between Mr. Rumleskie, Jordan Plumb and Brandon Lamoureux.

7Mr. Rumleskie died of a single stab wound to his abdomen on July 21, 2021. The weapon used was believed to be a green and black snake eye knife belonging to Mr. Plumb. Mr. Plumb’s DNA was on the knife along with the victim’s DNA. His girlfriend Ms. Dombroskie removed the knife from the Pine Tree Motel and later turned it over to police. She claimed not to know that the murder weapon had been secreted in her tattoo bag by Mr. Plumb. Mr. Plumb claimed that he did not tell her that he had placed the murder weapon in her tattoo bag.

8Both Mr. Lamoureux and Mr. Plumb were charged with murder. Charges were withdrawn against Mr. Plumb. He testified on behalf of the Crown.

9Mr. Plumb told the court that he feared the accused. He testified that Mr. Lamoureux told him to say that the victim had a knife, that it was self-defence, and that he may have stuck the victim with a knife when he pushed him up against the car.

10There was evidence of animus between the accused and the deceased. The accused had also previously threatened the victim by stabbing a wall repeatedly on a prior occasion when the victim would not leave after being asked.

11The stabbing death of the victim was captured on a grainy surveillance video which was part of the Pine Tree Motel’s security system.

12The persons on the video can be identified, but no knife can be seen in anyone’s hand. Further, the parked vehicles partially obstruct what can be observed at a critical juncture – when Mr. Plumb is shoving the victim up against a parked car.

13All of the participants in the fight had been consuming alcohol and Mr. Plumb and Mr. Lamoureux had also been smoking cannabis throughout the day.

14The issue in this case is who administered the fatal stab wound to Gilbert Rumleskie. If that question can be answered based on the available evidence, the secondary issue is whether the Crown has proved beyond a reasonable doubt that the killer had the state of mind required for murder as opposed to manslaughter.

15I shall begin by reviewing the evidence of the accused, followed by the evidence led by the Crown. If I accept the evidence of the defence, including exculpatory aspects of the Crown evidence, or if it leaves me in a state of doubt, I must acquit the accused. If I do not accept the evidence of the accused and it does not leave me in a state of doubt, if based on the whole of the evidence of which I do accept, I am left in a state of doubt, the accused must be acquitted: R. v. W.(D.), [1991] 1 S.C.R. 742. This is because a verdict should not be based on a choice between the accused and the Crown’s evidence, but on whether, based on the whole of the evidence, the trier is left with a reasonable doubt as to the accused’s guilt.

16The standard of proof beyond a reasonable doubt is inextricably intertwined with the principle fundamental to all criminal trials, the presumption of innocence.

17The burden of proof rests on the prosecution through the trial and never shifts to the accused.

18A reasonable doubt is not a doubt based upon sympathy or prejudice, but rather it is based upon reason and common sense and is logically connected to the evidence or absence of evidence.

19Proof beyond a reasonable doubt does not involve proof to an absolute certainty. It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt, and if I find that the accused is probably or likely guilty, he must be acquitted: R. v. Lifchus, [1997] 3 S.C.R. 320.

20This case is also one which featured circumstantial evidence. The question is therefore whether a trier of fact, acting judicially, “could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. A reasonable doubt can be based on evidence, or in the absence of evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

21If the identification of the accused can be established beyond a reasonable doubt, to determine whether an unlawful killing amounted to murder, I must consider all the circumstances surrounding the killing and decide whether the Crown has proven beyond a reasonable doubt that the killer had a state of mind required to make that unlawful killing murder.

Position of the Parties:

22It is the position of the Crown that the victim approached the group outside of Mr. Plumb’s room, number 18. The group included Mr. Plumb, Mr. Lamoureux, Ms. Dombroskie and her mother Dawn Coulas. Mr. Lamoureux punched the victim and knocked him down. Mr. Lamoureux then ran into room 18 and retrieved the knife which belonged to Mr. Plumb. Alternately, Mr. Lamoureux attained possession of the green and black snake eye knife, which belonged to Mr. Plumb, at some point prior to stabbing the victim. Mr. Lamoureux then stabbed the victim in the abdomen. Mr. Plumb was holding the victim in a bear hug. He threw him to the ground. Mr. Lamoureux instructed Mr. Plumb to lie about what happened and say that the victim was armed with a knife.

23It is the position of the defence that Mr. Lamoureux did not enter room 18 to retrieve the knife. He did not stab the victim. He did not instruct Mr. Plumb to lie about what had happened. An independent witness called by the defence testified that Mr. Plumb said he may have stuck the victim with a knife when he pushed him against Ms. Coulas’s vehicle.

Evidence of the Accused:

24Like many of the people who the court heard about in this trial, Mr. Lamoureux had a difficult background and many personal challenges before he came to reside at the Pine Tree Motel.

25His father was an abusive drug user who Mr. Lamoureux said fed drugs to his three children, Brandon, Damian and Gabriel. The three children were in and out of the care of the Children’s Aid Society. Mr. Lamoureux left home at age 17. He completed his education to the Grade 9 level and earned some Grade 10 credits. He is also a father and has a daughter, K, who he shares with his former partner Taylor Morden.

26Damian was stabbed to death in Halifax in May of 2021. Mr. Lamoureux himself has been previously stabbed on several occasions. Mr. Lamoureux has been stabbed on the left side of his chest, his left upper arm, stabbed twice in the thigh, slashed across the right side of his face and in his thumb. His brother’s death impacted him emotionally. He felt as though his brother should have survived the stabbing, given that he himself had survived many prior stabbings.

27Mr. Lamoureux and Ms. Morden moved into the Pine Tree Motel at the end of November in 2020. Mr. Lamoureux’s criminal record was Exhibit 40 at trial.

28His record contains multiple convictions for fraud and breaches of various court orders. Mr. Lamoureux attributes this aspect of his criminal record to the need to maintain his drug addiction. He indicated that he regrets his actions and after being in custody for over two years, he is currently sober.

29Despite his lack of formal education, Mr. Lamoureux was a coherent and articulate witness in this trial. His intelligence was apparent, especially in cross-examination, where he answered the Crown’s questions without resort to argument, denial of the obvious, or obfuscation.

30The fact that Mr. Lamoureux has a criminal record means that this record is presumptively admissible to challenge his credibility as he testified: see R. v. King, 2022 ONCA 665, 163 O.R. (3d) 179, at para. 139, leave to appeal to S.C.C. refused, 40467 (April 20, 2023). Convictions for crimes of dishonesty, including offences against the administration of justice such as breaching court orders, have obvious relevance since they provide particularly informative circumstantial evidence that the accused has a dishonest character: R. v. Hussein, 2023 ONCA 253, 425 C.C.C. (3d) 528, at para. 26, leave to appeal to S.C.C. granted, 41015 (March 7, 2024), citing R. v. M.C., 2019 ONCA 502, 146 O.R. (3d) 493, at para. 56; King, at para. 139. Robbery offences, because they have a theft-based element, are relevant since they provide particularly informative circumstantial evidence that the accused has a dishonest character: King, at para. 139.

31Convictions for other types of criminal offences “have the potential to demonstrate a ‘[l]ack of trustworthiness’ on the part of the witness, one that is ‘evinced by [an] abiding and repeated contempt for laws which [the accused] is legally and morally bound to obey”: King, at para. 140, citing R. v. Gayle (2001), 54 O.R. (3d) 36 (C.A.), at para. 81, leave to appeal refused, [2001] S.C.C.A. No. 359; see also R. v. Nagy, 2023 ONCA 184, 166 O.R. (3d) 545. I considered that the convictions for fraud and robbery negatively impacted Mr. Lamoureux’s credibility along with the other entries on his record which I referenced.

32Like many of the other residents of the Pine Tree Motel, the accused and the victim spent their days drinking alcohol and smoking cannabis together. They were initially on friendly terms. The accused expressed an interest in knives and knew the victim possessed knives.

33It is an agreed statement of fact that in the months prior to the death of Gilbert Rumleskie, Mr. Lamoureux stabbed the wall in room 2 of the Pine Tree Motel when Mr. Rumleskie entered the room without permission and was ordered to leave. He did not leave. A number of individuals were present for that event, including Daryl and Cameron Solomon, Lizzie (Alyssia Batson), Taylor Morden and Mr. Lamoureux.

34The group had been in Mr. Rumleskie’s room drinking alcohol and playing darts on a magnetic dart board.

35The person known as Lizzie was uncomfortable as she was not interested in the romantic advances of Mr. Rumleskie. The group left without Mr. Rumleskie and reconvened in Mr. Lamoureux’s room. Cameron Solomon attended at Mr. Rumleskie’s room to retrieve something. When he returned, Mr. Rumleskie was with him and sought entry to Mr. Lamoureux’s room. He was refused. Mr. Lamoureux repeatedly told Mr. Rumleskie to leave. Ms. Morden did not want him present due to a sexual remark he was alleged to have made days earlier which made Ms. Morden uncomfortable. Ms. Morden was repeatedly yelling that she did not want Mr. Rumleskie present. Mr. Lamoureux testified that Mr. Rumleskie appeared confused as to why he was being told to leave.

36Mr. Lamoureux said he stabbed the wall directly above the bed as a result of his growing frustration at Mr. Rumleskie’s refusal to leave the room. Mr. Rumleskie was standing at a point between the foot of the bed and ¼ of the way up the length of the bed at the time. Evidence that Mr. Lamoureux stabbed the wall in a threatening manner directed at Mr. Rumleskie is not merely evidence of animus on the part of the accused but is evidence that can be used to identify the accused as the person who stabbed the victim. It is evidence of discreditable conduct which supports the inference that the accused had the propensity, given his past violent behaviour toward the victim, to stab the victim on July 21.

37Mr. Lamoureux said his intent was to scare Mr. Rumleskie to encourage him to leave the room. He said he had no intent to stab him. Mr. Lamoureux said the suggestion that he might stab Mr. Rumleskie over this incident was ridiculous, as Mr. Rumleskie was not really hurting anybody. He testified that he later went over and apologized to Mr. Rumleskie for losing his temper. They drank Twisted Teas, alcoholic drinks, for the rest of that day. However, I found that his reaction was an extreme one and out of proportion to the victim’s purported offence, which was not leaving the room when asked.

The Governing Principles on the Admissibility of Discreditable Conduct Evidence:

38The fact that the evidence could be presented without viva voce evidence was agreed upon by counsel. However, the admission of the evidence and its use by the court in this judge-alone trial was disputed. The evidence is presumptively inadmissible. I ruled it admissible. My rationale in finding the evidence to be admissible is as follows.

39First, the definition of discreditable conduct evidence is evidence that:

(a) Tends to show that the accused has committed an offence that is not the subject matter of the charge or charges before the court; or

(b) Tends to show behaviour on the part of the accused, either through prior or subsequent acts, records, statements or possessions,

(c) And which, in the opinion of the court, would be viewed with disapproval by a reasonable person: R v. J.W., 2022 ONCA 306, 161 O.R. (3d) 609, leave to appeal refused, [2022] S.C.C.A. No. 220.

40The Exclusionary Rule: “[E]vidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect”: R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 735. There is a “general exclusionary rule” against the admission of evidence which relates solely to disposition: B. (C.R.), at pp. 734-735. The Supreme Court repeated this language in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, which continues to be the leading decision and governing precedent.

41The purpose of the rule is the evidence, if accepted, demonstrates that an accused has discreditable tendencies so that the trier of fact might convict on that basis alone, with the prospect that “[i]n the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence”. The forbidden chain of reasoning is the inference of guilt sourced from general disposition or propensity: Handy, at para. 139.

42I found this proposed evidence to be relevant to the identification of the person who stabbed the victim in this case. The fact that Mr. Lamoureux is alleged to have become angry enough with the victim on a prior occasion to resort to stabbing a wall with a knife makes it more likely that he was the person who resorted to a knife on July 21, 2021.

43The anticipated defence in this case was that Mr. Plumb and not Mr. Lamoureux administered the fatal stab wound. Thus, Mr. Lamoureux’s prior act of violence toward the victim with a knife advances the issue of identification of the stabber, which was a live issue in this trial. I considered the fact that in stabbing the wall, and not Mr. Rumleskie, the prior act of discreditable conduct was dissimilar in at least that aspect from the charge before the court.

44However, the resort to a knife, the fact that it was the same individual in both instances, and the fact that it was not overly remote in terms of timing persuaded me that the similarities were sufficiently probative of the issues before me to warrant admission. How much weight is attached to the evidence once admitted, given that in the earlier instance Mr. Lamoureux did not stab Mr. Rumleskie, but stabbed the wall, is a matter which I have considered separately, given that the similarities in this case warrant admission of the evidence.

45I found that the Crown had established, on a balance of probabilities, that the probative value of the proposed evidence outweighed its prejudicial effect. The evidence was highly probative as it involved the accused and the victim, was not remote in time and involved a knife.

46In terms of prejudice, the court must consider moral prejudice, reasoning prejudice and the presence of any factors that might reduce the impact of prejudice in the specific circumstances of the case: J.W., at para. 30.

47The first perspective of “moral prejudice” requires the trial judge in a judge-alone trial to self-instruct against the tendency to infer guilt based upon what Handy described as the “forbidden chain of reasoning … from general disposition or propensity” (emphasis in original): Handy, at para. 139. Self-instruction by judges can reduce, but does not eliminate, the risk of moral prejudice. Since the extent to which restricted admissibility doctrines can prevent moral prejudice is limited, courts must maintain a high awareness of the potential prejudicial effect of admitting similar fact evidence, particularly where the similar fact conduct is reprehensible: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 93. I instructed myself accordingly.

48There is less moral prejudice when the similar acts in question are other counts on the indictment, and therefore, more moral prejudice where the discreditable conduct is outside of the facts in the case: R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 87, per Watt. J.A.; R. v. J.H., 2018 ONCA 245, per van Rensburg J.A., at para. 24. In this case, the acts in question are not on the indictment.

49The second perspective to be assessed is the reasoning prejudice posed in the specific circumstances of the case. This focuses both on the emotional form of reasoning generated by the discreditable conduct and also on the distraction from the facts in issue in the case where trying the issue of discreditable conduct might encourage: J.W., at para. 33. In this case, I found the distractions to be minimal. The prior act is less discreditable than the charge before the court and the issues to be tried are not complex or time consuming.

50The final perspective is the consideration of methods in which the possible prejudicial effects can be mitigated in the circumstances of the case. In J.W., at para. 34, the court noted that despite the fact that the court has said that the risk of prejudice is considerably reduced in judge-alone trials, Paciocco et. al note that “there is controversy over how much lower the risk of prejudice is in judge-alone trials” as “[e]ven judges can struggle to overcome the tainting effect of discreditable information and may give it undue focus during a trial”. The Court of Appeal notes in J.W. that this observation is true to experience. Judges can by training and experience steel themselves against moral and reasoning prejudice, but only if they actively advert to the very point in the moment of decision: J.W., at para. 34.

51Finally, the fourth step is to assess the probative value of the discreditable conduct evidence against its prejudicial effects. Generally, the more probative the evidence, the more likely that the interests of justice require its admission. However, the interests of both society and the accused in a fair trial process require that the dangers of propensity evidence be taken extremely seriously; the criminal justice system “should not (and does not) take lightly the dangers of misapplied propensity evidence”: Handy, at para. 150.

52I concluded that the probative value of the evidence outweighed its prejudicial effect and admitted the evidence, the interests of justice mandating its admission as part of the search for truth aspect of this trial.

53Mr. Lamoureux was aware that Jordan Plumb possessed knives. He observed the green and black “snake eye” knife and also the red knife about a month before Mr. Rumleskie died. Mr. Plumb used the knives to clean his grinder. The knives were stored in a black case in a drawer. He found the red knife interesting as it had an intricate folding mechanism.

54On July 21, the day of the homicide, he awoke to his phone ringing. It was Mr. Plumb calling to say that Ms. Dombroskie was upset because of things that Mr. Rumleskie had said regarding Ms. Coulas and Mr. Lamoureux.

55Mr. Plumb and Ms. Dombroskie were in front of the room. Ms. Vanderzwaag, a friend of Ms. Dombroskie’s, was there in a white van and her three children were in the vehicle. Mr. Plumb advised him that Mr. Rumlekie was accusing Mr. Lamoureux and Ms. Coulas of engaging in sexual activity with one another.

56Mr. Lamoureux testified that the victim walked toward room 18 at one point and said, “you are freaking dead Moneyface.” Mr. Lamoureux’s nickname is Moneyface. He has a dollar sign tattoo on his face. Mr. Lamoureux said that he told him he was drunk. He also said “dumb things” to the deceased.

57Ms. Dombroskie told the deceased that he was making threats and she said she would call police.

58The accused said he had no intention of slitting Mr. Rumleskie’s throat, nor did he take the deceased’s threat to slit his throat seriously. Mr. Rumleskie called Ms. Dombroskie a cunt or a bitch.

59Mr. Rumleskie said “you are fucking dead”. Counsel did not object to the admission of the statements of the deceased involving threats to Mr. Lamoureux. The statements were not admitted for their truth, but merely for the non-hearsay purpose. A deceased’s mental state may be relevant to an accused’s motive to commit an offence: R. v. Griffin, 2009 SCC 28, [2009] 2. S.C.R. 42, at para. 60; R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34, at para. 98, leave to appeal refused, [2010] S.C.C.A. No. 152.

60The state of the relationship between an accused and the deceased in the time leading up to the unlawful killing of the deceased may demonstrate animus and motive on the part of the accused, and thus be relevant to the identity of the deceased’s killer and the state of mind that accompanied the killing: R. v. Carroll, 2014 ONCA 2, 304 C.C.C. (3d) 252, at para. 104, leave to appeal refused, [2014] S.C.C.A. No. 193, citing Griffin, at para. 61; Moo, at para. 98. Statements of the deceased may afford evidence of the deceased’s state of mind and thus be relevant to prove a motive and animus: Griffin, at para. 61. In this case, as in Carroll, evidence of the accused’s motive or animus was also relevant to rebut defence suggestions that a third party killed the deceased: Carroll, at para. 109.

61The statements of the deceased include the threats to kill the accused. He heard Mr. Rumleskie yelling that Moneyface was dead and fuck you Moneyface. The accused told him to shut up and fuck off.

62Mr. Lamoureux said he went home to put on pants. He was wearing shorts and a pair of boots which he wanted to change as they were not comfortable. He drank some alcohol in his room. He had also drank a Smirnoff Ice at Mr. Plumb’s room earlier.

63The hotel manager’s son told him to ignore Mr. Rumleskie.

64Instead, the accused went back to room 18. Ms. Dombroskie and Mr. Plumb were present. He indicated that he should not have been instigating further conflict, but he was aggravated at what Mr. Rumleskie was saying.

65Ms. Coulas was receiving texts from Mr. Rumleskie which she was reading out loud. The texts said that Moneyface is a little bitch. Mr. Rumleskie accused Ms. Coulas of engaging in a sexual act with Mr. Lamoureux.

66Mr. Lamoureux said he felt embarrassed by some of the things he texted to the deceased, including insults to the deceased’s mother.

67The group then went to the reservation to buy cigarettes.

68Mr. Lamoureux said that he was fairly certain that he observed a knife clip on the edge of Mr. Plumb’s pocket prior to Ms. Coulas driving them to the reservation. He had not noticed it during the day.

The Fight and Stabbing:

69Mr. Lamoureux testified that the victim approached him, brandishing a knife blade. Mr. Lamoureux, Mr. Plumb and Ms. Dombroskie were present, as was Dawn Coulas.

70Mr. Lamoureux testified that the knife blade looked to be about four to five inches in length and was in Mr. Rumleskie’s left hand. In his July statement to police, the accused said that the victim carried the knife in his right hand.

71The surveillance video showed the victim moving his left arm in a manner which appeared as though he was pointing something or brandishing something. It may or may not have been a knife.

72Having reviewed the video many, many times, it does very much appear as though the victim was either flicking a knife blade, although no knife blade can be seen, or the victim is making it appear as though he is flicking a knife blade.

73Mr. Lamoureux explained that when he referenced the knife being in the right hand in his police statement, he meant that Mr. Rumleskie was facing him, and he meant that it was his right side and Mr. Rumleskie’s left side. I did not find that this inconsistency between his statement to police and his evidence at trial was the type of inconsistency which would undermine his credibility. The event occurred very quickly. Mr. Lamoureux had ingested ten methamphetamine pills and alcohol that day. In my view, making a mistake about which hand the blade was being held in is the type of mistake which in the circumstances is understandable.

74Mr. Lamoureux testified that the deceased brandished a knife at him and said: “You are fucking dead”.

75The accused did not recall saying anything in response. Events happened quickly at this point, he said. He recalled that Mr. Plumb said: “No knives”.

76Mr. Lamoureux, having been previously a victim of a stabbing and recently losing his brother to a stabbing, feared being stabbed. He ran around the victim and punched him. This punch is captured on the motel surveillance video. He said that he did not recall hitting the victim until he had reviewed the surveillance video. After he punched the victim, he said that he stepped back.

77He could not see the knife in the victim’s hand anymore. He said that Jordan Plumb reached for something on the ground. He was not sure what it was. A review of the surveillance video does indeed depict Mr. Plumb reaching for something on the ground immediately after the accused punches the victim. A dog, Bowser, is jumping around during the fight. It is possible that Mr. Plumb was reaching for the dog’s leash, but the video does not allow me to draw that inference conclusively. He does appear to be reaching for an object on the ground.

78The accused said he stepped back at this point but did not enter room 18.

79It was the theory of the Crown that the accused entered room 18 and seized the green snake eye knife belonging to Jordan Plumb.

80The video does depict the accused stepping back and out of sight for a moment. However, he is between two vehicles, and it is impossible to see if he enters the room or not. The door of room 18 does not appear to open, although at other places in the video the door can be discerned as being opened. The accused testified that he saw that Mr. Plumb had the victim in a strong grip and there was no need to strike him again.

81Mr. Plumb testified that he grabbed the victim in a bear hug from behind. He pushed him up against a vehicle and then threw him to the ground. The video corroborates the fact that Mr. Plumb grabbed the victim in a bear hug and threw him to the ground. The victim can then be seen taking a few steps away and then falling on the grass. The accused walked toward the victim and appeared to kick the foot of the victim, before heading to his room.

82The accused denied that he had a knife in his possession. The accused said that when he saw the victim fall, he walked over toward him to see if he was all right. He noted a small bit of blood at the bottom of the victim’s shirt. The accused said he reasoned that since the victim had a knife and there was blood at the bottom of his shirt, he inferred that he should call an ambulance as Mr. Rumleskie may require medical help. He said he had no idea that the victim’s injury was serious at this point.

83He went to his room and asked Taylor Morden for the cell phone. The phone fell on the ground and switched off. The phone had been broken and required that the power bar had to be pushed several times to resume working.

84As he walked toward Jordan Plumb’s room, he kept repeatedly hitting the phone’s power bar, to try to activate the phone, he said. When he arrived at room 18 Ashley Dombroskie and Jordan Plumb were in room 18. Jordan Plumb was putting things in the tattoo bag which belonged to Ashley Dombroskie. Ms. Dombroskie was not doing much of anything, he said. Mr. Plumb testified that he had put knives, including the green snake eye knife that was believed to have been used to stab the victim, into the tattoo bag. The accused said he finally got his phone working and then called 9-1-1.

85The accused testified that he told the 9-1-1 operator that the victim had a knife and had been stabbed. In cross-examination the Crown suggested that he knew the victim had been stabbed not because he deduced it based on the fact that the victim had a knife, and had fallen on the grass, and he observed a small amount of blood on the victim, but because he had himself stabbed the victim. The accused denied this suggestion.

86The accused indicated that he and Jordan Plumb were near a truck, and he asked Mr. Plumb where the knife went. Mr. Plumb said he “hucked” it over the roof. He did not say anything to Mr. Plumb, other than ask him where the knife had gone. He was only told that the knife was thrown over the roof, he said.

87He advised that he saw the victim pull a knife. He saw the victim get bear hugged by Jordan Plumb. He did not see the knife drop, but he said he saw Jordan Plumb reach down for something on the ground. He indicated that Jordan Plumb told him he threw the knife. He said that he was filling in blanks and not trying to mislead police by claiming to have seen Mr. Plumb throw the knife.

88He denied telling Mr. Plumb what to say to the police. He tried to assist the victim so that the victim would not injure himself while waiting for paramedics to arrive. The victim appeared confused. The victim said he was dying.

89When the victim’s shirt was lifted up, he could see that the victim’s intestines were gaping out of an abdominal wound. The accused denied saying “why did you make me do it” to the victim, as Mr. Plumb, and later Ms. Dombroskie, had testified. The accused said he observed Mr. Plumb demonstrating throwing something in a baseball throw gesture. The accused thought that Plumb had thrown the knife over the roof after this, he said.

90He could not say if Mr. Plumb had a knife on his person that day. In his July 22 statement to police, he said that he saw the red knife sticking out of Mr. Plumb’s pant pocket, but he did not see him pull out a knife that day. He had overheard the officer saying that Mr. Plumb had a knife on his belt when Mr. Plumb was being processed in the police station later that day. However, he did not see Mr. Plumb with the red knife in his hand.

91The accused admitted that he lied regarding Dawn Coulas not being present at the time of the fight with the victim. She was present. Ms. Dombroskie did not want her mother involved in the matter and the accused said he was willing to do a solid for a friend. He also indicated that he said an acquaintance came up to him and misidentified the colour of the car. However, the car was blue, not red.

92The actual fight and stabbing of the victim begins at around the 6:34 mark on the Pine Tree Motel surveillance video. At the beginning of this time frame, the accused is smoking some bongs with Mr. Plumb in front of room 18 at the motel.

93After punching the victim, the accused said he stepped back. He did not think he made contact a second time, although on the video it appears as though he engages in a shoving motion at about the 6:35:40 time stamp on the video. The victim walked away, stumbled and then fell to the ground.

94He walked toward the victim and noted the victim’s breathing was laboured. He testified that he saw a small amount of blood on the victim’s shirt. Later in cross-examination he said that he saw a small amount of blood on the victim’s abdomen.

95After Ms. Dombroskie came out to look at the extent of the victim’s injury, the accused said he realized the wound was much more serious than he initially thought. While Taylor Morden and Ms. Dombroskie were tending to the victim, Mr. Plumb and Mr. Lamoureux walked to the truck. This is when the accused said he asked what happened to the knife. He said that Mr. Plumb indicated he had hucked the knife. He told the police that the knife was in a field behind the room as Mr. Plumb said he threw it over the roof.

96After he had been arrested and charged with murder, the accused was housed at the Ottawa-Carleton Detention Centre. He and Mr. Plumb were put in the same living Unit E and were on quarantine protocols due to COVID-19.

97On one occasion, the accused said he was let out of his cell at the same time as Mr. Plumb and they talked. Mr. Plumb told him the Crown was going to consent to his release. The accused said that Mr. Plumb indicated that he wondered why they were letting him out since when he bearhugged the victim he stuck him with his knife. The accused said he called his lawyer at the time and reported what he had been told by Mr. Plumb. The Crown initially sought to cross-examine Mr. Lamoureux’s former counsel, Jason Gilbert, regarding this alleged conversation with his then client. However, this application was abandoned after consideration.

98Mr. Plumb denied making such a statement. I was unable to find that it had been made.

99In cross-examination the accused testified as follows: He knew that if he stabbed someone anything could happen and that the person could die.

100He used text to speech to say mean things to the deceased, including that he could go fuck his mother, that he was a loser and that no one liked him. He told the victim to fuck off and leave them alone. He returned the insults that the victim was hurling at him.

101He met Jordan Plumb through the victim a few months before they moved in. The victim had invited him over to meet his family. It was the first time he met Mr. Plumb and Ms. Dombroskie.

102One month before the murder Mr. Plumb and Ms. Dombroskie moved into the Pine Tree Motel. He smoked bongs and did shots and played video games with Mr. Plumb every day. He did not go fishing with the victim, as Mr. Plumb did.

103He said that shortly after they returned from the reservation on the date of the murder, someone said, “here comes Gilbert”. He saw the victim flicking out a knife from his left fist.

104The victim was flicking his arm; he saw him do it twice when he first saw him. He saw him do it a third time and on the fourth time he saw the blade pop up from his fist.

105The victim was yelling “you are fucking dead” and approaching him aggressively. The accused denied stabbing the victim.

106The accused watched the victim’s hand to keep an eye on the blade he believed he had observed. He hit the victim. He took a step back on the paving stone and Mr. Plumb grabbed the victim. The accused said he realized Mr. Plumb had a good grip on the victim and the accused did not hit him again.

107Mr. Plumb had yelled out: “No knives”. Mr. Plumb denied making this utterance. I was unable to find that this comment was made.

108The accused said he did not recall hitting the victim until he saw the surveillance video. He explained that he erroneously said that the victim had the knife in his right hand, because it was the accused’s right hand side and he was facing the victim.

109He advised police in July that he thought the victim was going for his lighter. This was in contradiction to his comment that he did not recall seeing anything coming out of the victim’s pocket. He then indicated he could not remember if the victim took it from his pocket, but he recalls him flicking it and the blade popping out.

110He said he did not see the knife drop, although he indicated to police that he had. He did not see the knife get “hucked” or thrown by Mr. Plumb, although he indicated that he did. He said that when he related this information to police, he was merely filling in the blanks, including information which Mr. Plumb had told him.

111He agreed that although he had been told that the knife was thrown away, and did not see it himself, his comments to police suggested that he had witnessed the knife being thrown.

112He said he should not have filled in the informational blanks in giving his evidence, and he had made mistakes, but he had also been up all night and had just been charged with murder. He consumed ten methamphetamine pills and was pretty amped up. He ingested the pills before going to the reservation. He has severe ADHD. The accused said he did not disclose that he had taken ten methamphetamine pills to police as he was ashamed of the stigma of that type of drug addiction. I rejected his evidence on this point. The stigma of being charged with murder was obviously far greater than being addicted to drugs, and Mr. Lamoureux would have been aware of this fact. As I indicated, I found Mr. Lamoureux to be quite intelligent. He may have been trying to manage his image in front of Detective Kohls. I did find as a fact that Mr. Lamoureux had taken the drugs; I just did not accept his stated reason for failing to disclose this to the police.

113He knew that Mr. Plumb kept his knives in a black box in his room. He did not see the dog going into room 18.

114He denied there would have been time for him to go in the room to retrieve a knife and denied that he did it. He also testified that he did not observe the dog, Bowser, going into room 18.

115When the victim dropped to the grass, he thought initially that the victim was just being dramatic.

116He was super frantic and left out certain details in his statement to police. For example, he did not run to room 18 with the cell phone to call 9-1-1, he walked. He was having a hard time putting together a cohesive flow of events, he said.

117He agreed that he told the 9-1-1 operator that the victim had been stabbed. He told the 9-1-1 operator that the guy had a knife and attacked them, and he got stabbed. He was restrained. He said he was breathing and not gushing blood. He said that what he meant was he saw blood on his sweater but it was not saturated, just a little blood leaking out of his clothes.

118The blood was on the bottom of the victim’s shirt on his skin. He saw blood on the skin, not gushing on the clothes. His shirt was slightly raised.

119He does not to this day know what happened to the victim. He denied stabbing the victim or nicking him in the elbow with his knife.

120In assessing the evidence of the accused, I found that he was articulate, not argumentative and made reasonable concessions where appropriate. However, there were significant inconsistencies between his statement to police in July and his evidence at trial. These inconsistencies were exposed in the cross-examination of the accused by Mr. Bocking. For example:

• Mr. Lamoureux did not mention to police that he had consumed ten methamphetamine pills prior to attending at room 18 and prior to the fight with the deceased. This was a significant omission because in his statement to police Mr. Lamoureux said he had no memory problems. However, at trial, he conceded in cross-examination that consumption of these pills impacted his memory.
• Mr. Lamoureux said he did not want to tell the officer that he used drugs. In fact, he told the officer he was sober. He claimed that this is because of the stigma of drug use, and he felt ashamed. However, the stigma of being charged with first degree murder carries with it arguably greater stigma.
• Mr. Lamoureux lied about Dawn Coulas being present at the scene.
• I did not accept, even in the heat of the moment, that Mr. Lamoureux forgot that he punched the victim first. Although it is understandable that he may forget minor details in the heat of the moment, striking someone first in a fight where the person dies is not something that I believe Mr. Lamoureux forgot as a minor detail. It is my view that he was again managing his image in front of the detective.
• In cross-examination, the accused conceded that he had said in his police interview that the deceased drew the knife from his pocket and he elaborated by saying that he thought he was going for his lighter initially. However, at trial, he admitted he did not see the deceased drawing anything from his pocket.
• The accused went further in his interview with the officer and demonstrated how the deceased drew the knife out of his pocket. He used his right hand. I did not find that the accused intentionally misled the officer about which hand he believed the victim was brandishing the knife. I accepted his evidence that he was confused in relating this aspect of what he believed happened to the officer, and when he said right, he meant his right and the deceased’s left.
• Mr. Lamoureux also told the officer that he ran from his room and was dialing 9-1-1. At trial, he conceded he was walking from his room, and his phone was not working, and he was repeatedly hitting the power button to try and get it to work. This was because Ms. Morden had dropped the phone on the ground and the phone already did not work well. These details were not revealed in his initial discussion with police.

121However, I did not reject all of the accused’s evidence. I accepted that he believed he saw a knife in the hands of the victim as the victim approached. There is corroboration of that in the video, which shows the deceased appearing to flick his hand repeatedly in the way one might do if flicking a knife. I am unable to determine whether or not the deceased had a knife.

122The fact that the knife was not recovered is not determinative. A knife was found behind the motel, but due to the lack of bloodstaining was not tested for the presence of DNA. I am not in any way concluding that this is the knife which the deceased had or did not have but am simply not able to reject the reasonable possibility that the deceased had a knife based on my observations of his hand motions in the video.

123Both Ms. Dombroskie and Mr. Plumb initially told police that the deceased had a knife with him. They later changed their stories. Both were neither credible, nor reliable witnesses. Mr. Plumb advised police that Mr. Lamoureux instructed him to say the deceased had a knife. Mr. Plumb’s evidence on this issue was contradicted by Mr. Pepper, who said that he did not observe the accused telling Mr. Plumb what to say, that Mr. Plumb explained that the deceased had a knife and may have been cut when he was pushed against the car, and that he threw the knife in the bush. Mr. Pepper said that Mr. Plumb did most of the talking.

124Further, Mr. Plumb’s DNA was on the knife, which was believed to be the murder weapon, along with that of the deceased. The murder weapon was a knife belonging to Mr. Plumb. I was not able, despite watching the video over and over again multiple times, to observe the door to room 18 opening at the time when it was believed Mr. Lamoureux would have taken Mr. Plumb’s knife from room 18. It was also suggested that the dog escaped the room at this time, but the dog is clearly on the video during the initial part of the fight.

125I accepted the accused’s explanation for why he mistook left for right when relating to police that the deceased had a knife in his right hand in his police interview as opposed to his left hand. He was not shaken in cross-examination on this point, and his reason for confusing left and right in terms of what hand he said the deceased held the knife was not unreasonable.

126I also accepted that the accused was able to discern that the deceased had been stabbed from the fact that he believed the victim had a knife, that the deceased had fallen to the ground. While he did tell the 9-1-1 operator that he did not see blood seeping out of the deceased’s clothing, I was not able to reject his evidence that he may have seen blood on the skin of the deceased as he walked by him laying on the grass.

Evidence of Barry Pepper:

127Mr. Pepper testified as follows:

• He was 69 and was a resident at the Pine Tree Motel during July of 2021. He lived on the same block of motel rooms as Jordan Plumb. He was present at the motel at the time that Mr. Rumleskie died. He had been a resident of the motel for three months before the death of Gilbert Rumleskie.
• On the day in question his grandson heard a ruckus going on and said there was a fight at the accused’s place at the front end. He went outside and saw Mr. Rumleskie on the ground and two girls holding his arms. The accused and Mr. Plumb were telling the victim to stay still. It did not look like a fight at that time. It looked like Mr. Plumb and the accused were trying to help the victim.
• Mr. Pepper spoke to Mr. Plumb and the accused. He asked Mr. Plumb what happened. Mr. Plumb and the accused took Mr. Pepper over to the car. Mr. Plumb said that the victim had a knife. Mr. Plumb said he had snuck up behind Mr. Rumleskie and given him a bear hug to try and get the knife away from him. Mr. Plumb indicated that he put the victim in a bear hug so the victim would not hurt anyone, including himself. Mr. Plumb told Mr. Pepper that the victim may have been stuck with the knife when he fell back against the car. Both Mr. Plumb and the accused said that the deceased had a knife and was wielding it. Mr. Plumb relayed this information to Mr. Pepper before the accused said it. Mr. Plumb said that he put a bear hug on the deceased and that he and the accused were fighting to get the knife away from the deceased. Mr. Plumb said the knife fell to the ground.
• Mr. Plumb said that he threw the knife toward the bush. Mr. Pepper made a one-handed, over the shoulder tossing motion, indicating that the knife was tossed behind, backwards over Mr. Plumb’s shoulder.
• Mr. Plumb did most of the talking. He did not see or hear the accused instructing Mr. Plumb as to what to say. He told Mr. Plumb that he better find the knife, or he would be in trouble.
• It seemed like forever before the ambulance arrived.

128The evidence of what Mr. Plumb said to Mr. Pepper is hearsay. It is not admitted for the truth of its contents, but merely for the fact it was said, as it demonstrates contradictions in Mr. Plumb’s evidence which goes to Mr. Plumb’s credibility.

129In cross-examination, Mr. Pepper said that the only time he spoke to the accused and Mr. Plumb was before the police arrived. The accused and Mr. Plumb were not together all of the time. (This contradicted Mr. Plumb’s evidence that Mr. Lamoureux was constantly with him, giving him no opportunity to speak to police.) I accepted that Mr. Plumb was intimidated of the accused, but I preferred the evidence of Mr. Pepper over that of Mr. Plumb. I did not accept that Mr. Plumb had no ability to speak alone to police. I accepted that he would have been intimidated of the accused. However, I did not accept that the accused told Mr. Plumb what to say to police. Mr. Pepper said that Mr. Plumb did most of the talking. I accepted Mr. Pepper’s evidence. I found him to be a credible and reliable witness.

130The accused was walking all over the place, saying what are we going to do, what are we going to do? Mr. Lamoureux was freaking right out according to Mr. Pepper. He is a “hyper kid” to begin with, said Mr. Pepper.

Evidence of the Crown:

Jordan Plumb:

131Jordan Plumb testified that he and the accused were involved in a fight with the deceased, that the accused stabbed the deceased and put the murder weapon in Mr. Plumb’s pant pocket and that the accused instructed him to lie about what had happened.

132Mr. Plumb’s evidence was highly problematic in terms of both his credibility and his reliability. In terms of his credibility, he admitted to lying many times to police, albeit he did so he said, because he feared the accused. He also lied to the court regarding having contact with his former girlfriend Ms. Dombroskie.

133He admitted to claiming to having ADHD blackouts to avoid answering some pointed questions posed by police. At trial, he also maintained that he was “blacked out” during certain critical times.

134The reliability of his evidence was also seriously impacted by his memory, which he described as “ass” or terrible.

135He was 21 when he testified. He suffers from ADHD. He had a turbulent and painful childhood. He was in foster care. He has a Grade 9 education, and his current employment is delivering papers once a week.

136He met Ms. Dombroskie in July when he was 18 years old and they moved in together, eventually taking up residence with Ms. Dombroskie’s mother, Dawn Coulas. Ms. Coulas, as indicated earlier, is the former girlfriend of the deceased. It was through Ms. Coulas that Mr. Plumb met the deceased.

137Mr. Plumb said he developed a good relationship with the deceased, who helped him move into the Pine Tree Motel in Eganville where the deceased resided. They went fishing together several times. Mr. Plumb and Ms. Dombroskie moved into the Pine Tree Motel within a week of July 1, 2021, he said.

138While Ms. Dombroskie was at work at the Country Style donut shop, Mr. Plumb spent his days drinking alcohol and smoking marijuana. He was frequently in the company of the deceased.

139He said he met the accused during this time. The accused did not get along well with the deceased, he said.

140On his 19th birthday, July 20, 2021, he drank with the deceased and Ms. Dombroskie. Ms. Coulas drove him, Ms. Dombroskie and the accused to Pembroke to pick up a television set and bicycle parts. Prior to that trip, the accused was visiting at both Mr. Plumb’s room and the deceased’s room that day.

141The following day the deceased appeared upset to Mr. Plumb. The deceased believed that the accused and Ms. Coulas engaged in sexual activity. Mr. Plumb explained to Mr. Rumleskie that nothing sexual had occurred, but the deceased could not be dissuaded from his belief.

142The deceased was drinking heavily, and it appeared to Mr. Plumb that he remained perturbed. That day, the deceased frequently attended at room 18 where Mr. Plumb resided. He kept asking for cigarettes.

143At some point, Mr. Plumb was advised by Ms. Dombroskie that a fight was brewing involving the deceased and the accused. She instructed Mr. Plumb to call the accused over so she could explain things. Mr. Plumb called the accused over to room 18 and the accused attended.

144Ms. Dombroskie’s friend, Ms. Vanderzwaag arrived with her three children at this time.

145Mr. Plumb claimed he could not hear the conversation between the accused and Ms. Coulas, although they were all outside of room 18. Mr. Plumb said he was simply “doing me”, in his head on an ADHD “trip”. This is an example, in this trial, where I found that Mr. Plumb used his ADHD as a convenient method of avoiding having to answer certain questions. He admitted to employing this technique during his police interview, but it was also exhibited during his evidence at trial.

146The group consumed Smirnoff Ice alcoholic drinks. The accused appeared upset at what he had heard from Ms. Coulas. The deceased then arrived at room 18. Mr. Plumb claimed he could not hear what was said by the accused to the deceased. The accused and the deceased argued for five to ten minutes. The deceased confronted the accused about what he believed had transpired the night before with Ms. Coulas. The deceased walked away. The accused said something like: “Go die!”

147When the accused said “go die”, the deceased said, “we will see.” The deceased appeared to have been drinking and appeared angry. He called Ms. Dombroskie a cunt. Mr. Plumb claimed not to be angered by this insult to his girlfriend. He said he did not feel it was his place to intervene.

148I did not accept Mr. Plumb’s evidence that this insult by the deceased did not make him angry. The remark by the deceased was crude and insulting. On a prior occasion involving Jordan Archambault, Ms. Dombroskie’s ex-partner, and Mr. Plumb’s younger brother, Mr. Plumb reacted by spraying pepper spray at Mr. Archambault. Ms. Dombroskie also described him as a protective partner. I rejected his evidence that this insult to Ms. Dombroskie did not anger him, or that he thought that Ms. Dombroskie might have done something to earn that insult, which is what he indicated at trial.

149Mr. Plumb told a neighbour in room 12 to mind his own business.

150The group continued to drink and then drove to the reservation for cigarettes. He believed that the accused had three drinks.

151After the initial confrontation with the deceased, the accused appeared to be texting someone.

152This initial skirmish between the accused and the deceased occurred sometime around 4:00 or 4:30 p.m.

153They left for the reservation between 5:00 p.m. and 6:00 p.m.

154Mr. Plumb sat in the rear seat behind the driver. Mr. Lamoureux was on the passenger side and Ms. Dombroskie was in the front seat passenger side. Ms. Coulas was driving. Mr. Rumleskie was sitting outside his room and drinking when they left. After reviewing the surveillance video of the Pine Tree Motel, Mr. Plumb said he recognized the deceased giving the finger gesture as the car left the Pine Tree Motel to head to the reservation for smokes.

155On the way home they all got out of the car to urinate. Mr. Plumb said no one was drinking in the vehicle. Mr. Plumb said that the deceased later told him that the accused gave him the finger out the window as they drove by on their return to the Pine Tree Motel. This statement of the deceased was not admitted for its truth, but as evidence of the state of mind of the deceased.

156Mr. Plumb removed Bowser, Ms. Dombroskie’s American Bulldog, from the vehicle when they arrived back at the motel. He was unsure if he took the dog into room 18 or turned him over to Ms. Dombroskie.

157He observed the deceased approaching. He appeared upset with the accused, believing the accused had given him a finger gesture earlier in the car.

158The accused hit the deceased. The deceased fell and got back up again. The deceased tried to resume the fight. Mr. Plumb put the deceased in a bear hug to restrain him. He pushed the deceased against the car. He walked the deceased away from the fight. Mr. Plumb said that the accused put the knife into the deceased when Mr. Plumb was walking the victim away. However, it was not clear to the court how Mr. Plumb would have been aware of when the accused stabbed the victim, as Mr. Plumb also testified that he did not see a knife in the hand of the accused, or the victim, and it was much later that the accused, according to Mr. Plumb, confessed that the accused had stabbed the deceased.

159Mr. Plumb said he was bringing the dog bed into the house when the deceased got up after being hit by the accused.

160He said he came back to see that the fight was still going on and at that point he put the deceased in a bear hug and walked him away from the fight. A review of the surveillance video proves this assertion incorrect. Mr. Plumb was not only present when the deceased got up after being hit by the accused, but a review of the video depicts him removing the dog from the vehicle, but not a dog bed.

161Mr. Plumb said he held the deceased against the car. The deceased was struggling to escape. Mr. Plumb said he gave him a shove, telling him he was drunk and needed to go home. Mr. Plumb testified that he put the deceased in a bearhug to protect the deceased from the accused. He indicated that he was cognizant of the accused’s background of violence, including things that the accused had said that he had done, including that he had not been charged in a murder due to lack of evidence, that in another incident he said he stabbed Nathan Lindsay repeatedly, and had held someone captive in a bathtub for three days over a drug debt.

162This evidence was not admitted as discreditable conduct evidence, but rather to inform Mr. Plumb’s state of mind, and to explain the basis for his stated fear of the accused, and his claim that in restraining the deceased and shoving him to the ground that he was trying to protect him from the accused. I did accept that Mr. Plumb feared the accused, and in particular was afraid after being housed with him at the OCDC.

163However, given Mr. Plumb’s credibility issues, I was not able to find that the accused had advised him that he was implicated in a homicide where there was insufficient evidence, nor that he had held someone captive in a bathtub for three days. There was corroborative evidence in this trial supporting the allegation that the accused stabbed an individual and that was found in the fact that the accused himself admitted to being stabbed himself many times.

164I accepted that Mr. Plumb had a basis for fearing the accused himself, and that he knew the accused may harm the deceased.

165However, I did not accept that Mr. Plumb was trying to protect the deceased from the accused when he grabbed him in a bear hug, pushed him against the vehicle and shoved him to the ground.

166Mr. Plumb also believed the dog was in the house. However, the video contradicts his evidence on this issue.

167After the accused punched the deceased, Mr. Plumb can be seen on the video reaching down to the ground and grasping for an object. The quality of the video does not permit identification of an object.

168Mr. Plumb said the accused then confessed that he had stabbed the deceased. Mr. Plumb said he advised Ms. Dombroskie that the accused had confessed to stabbing the deceased. Ms. Dombroskie’s evidence contradicts Mr. Plumb on this issue. She described Mr. Plumb saying, “Brandon”, but being too teary to articulate what had happened.

169Mr. Plumb said that Ms. Dombroskie then attended to the deceased with toilet paper or Kleenex. She lifted the deceased’s shirt. Mr. Plumb said the cut on the deceased’s abdomen was bigger than expected, or what it should have been. The court was unsure what was meant by this remark, and it was not clarified. Mr. Plumb indicated that someone should call 9-1-1. He himself did not call 9-1-1 at any point, despite the fact that his evidence was that he had a friendly relationship with the deceased. He said he was too panicked to call 9-1-1.

170Mr. Plumb then said that he became aware of the knife when it was slipped into his pocket by the accused. He testified that he told Ms. Dombroskie that the knife was slipped into his pocket. He testified that she said she did not know what to tell him. Ms. Dombroskie denied that this conversation took place.

171There was a particular aspect of Mr. Plumb’s evidence regarding the knife which the court found troubling.

172Mr. Plumb said that he did not see a knife during the fight. So he would not know, on his evidence, which knife had been slipped into his pocket supposedly by the accused.

173He testified that the accused told him he stabbed the deceased and slipped the knife into the pocket of Mr. Plumb’s black Puma pants. However, when Mr. Plumb upon pulling the knife out of his pocket, never expresses shock or surprise to discover that the knife is his knife, it belongs to him.

174He does not tell Ms. Dombroskie that not only is the murder weapon in his pocket, but it is his knife that he owns. He never expresses any surprise that the knife is his or wonder how the accused could have gained access to his knife. In fact, in his evidence in this trial, he does not mention the fact that the knife belonged to him until he is prompted to do so by the Crown asking to whom the knife belonged.

175Given that the fact that the murder weapon was his knife, it is somewhat surprising that he did not express concern over this fact as linking him to the death of the deceased, or why he would not question how the accused would have gained access to his personal knife. Mr. Plumb said he feared he would be blamed as he had the murder weapon on his person, but he never mentioned the highly incriminating fact that the knife also belonged to him. I did not accept that the accused placed the knife in his pocket without explanation, but later gave him specific instructions on how to lie to police. If the accused did indeed give the kind of detailed instructions which Mr. Plumb claimed, one might have expected that he would address the fact that the murder weapon belonged to Mr. Plumb, and what was to be done with it.

176The accused put the knife into his pocket according to Mr. Plumb as they stood between vehicles. I am unable to discern when this occurred on camera, due to the size of the images, and the fact that there is a truck and another vehicle which block the view of the struggle. Much of the struggle between Mr. Plumb and the deceased, and the actions of the accused is also blocked by these vehicles.

177The knife in question was the green and black snake eye blade. Mr. Plumb indicated that he had last seen the green and black snake eye knife sitting next to his buster, which is an implement used for grinding up marijuana, on the table in the window.

178Ms. Dombroskie’s knife was in a box, but the box was open, he said, and his knife was just sitting on the table. He put the red knife and Ms. Dombroskie’s knife in the tattoo bag too. He said he did this “more or less just to save you guys from going on a hassle of a run for it.” He had no other explanation as to why he put the other knives in the tattoo bag. He said no one else was in the room at this time.

179I did not accept Mr. Plumb’s evidence that he put all of the knives, including the murder weapon, in Ms. Dombroskie’s tattoo bag to make life easier for the police who had to search the room. If that was his intention, he presumably would have advised Ms. Dombroskie not to remove the tattoo bag as it contained important evidence for police, including the murder weapon. Room 18 was a small room, and there was no evidence that putting the knives in the tattoo bag would ease the task of the police.

180I also rejected Mr. Plumb’s evidence that he did not inform Ms. Dombroskie that the murder weapon was in her tattoo bag. Mr. Plumb was not a sophisticated individual; however, he certainly would have been aware that placing the murder weapon in the tattoo bag could implicate Ms. Dombroskie if she removed the bag. The fact that he failed to warn her not to remove the bag satisfied me that it was his intention that Ms. Dombroskie remove the tattoo bag along with the murder weapon inside.

181Mr. Plumb and Ms. Dombroskie had a very close relationship on the evidence. Mr. Plumb knew that his green and black snake eye knife was the murder weapon. It is inconceivable, based on the evidence which I heard in this case regarding their relationship, that Mr. Plumb would place the murder weapon in his partner’s tattoo bag, which could potentially incriminate her as an accessory after the fact if she removed that bag from room 18 without telling her.

182I also did not accept that Ms. Dombroskie was not aware that the murder weapon was in her tattoo bag when she removed the bag. I found as a fact that Mr. Plumb placed the knife in the tattoo bag with Ms. Dombroskie’s knowledge, and that she removed the knives from the motel with his full knowledge, and possibly on his instruction. There is no evidence that the accused directed the removal of the knives from room 18.

183Mr. Plumb also claimed that just prior to police arriving the accused asked the deceased why he had made the accused do this to him. However, at the time that Mr. Plumb claims this comment was made the accused is on the 9-1-1 call speaking to paramedics. The accused can be heard clearly speaking to the paramedics. However, at no time did he ever make the utterance attributed to him by Mr. Plumb. I do not accept that this comment was ever made. Ms. Dombroskie, for the first time ever, claimed to have recalled this comment also being made when she returned to finish her evidence and I will have more to say about that later.

184One useful way to assess witness credibility is to examine the consistency between what the witness said in the witness box and what she said on prior occasions, whether under oath or not: see R. v. A.M., 2014 ONCA 769, 123 O.R. (2d) 536, citing R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’s testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time, while referring to them on other occasions.

185Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

186Mr. Plumb claimed he was not given an opportunity to speak to police without the accused present. However, Mr. Pepper, a witness who testified for the defence, said that the accused and Mr. Plumb were not always together. I do not accept that Mr. Plumb could not have asked to speak to police alone, or that he was never out of the company of the accused. Mr. Plumb also indicated that he wanted to wait until speaking to a lawyer before speaking candidly with police. This is his right. However, his wish to speak to a lawyer before being candid contradicts his assertion that he did not tell police what was really going on due to his inability to be alone with the police, and the controlling presence of the accused.

187Further, Mr. Plumb demonstrated for police how he threw the knife over the roof. It appears that he was not merely repeating what he had purportedly been instructed to say, but engaging in elaboration, including a physical demonstration, the sole purpose of which was to deceive the police. This indicates an individual who is doing more than merely repeating what he has been supposedly told and is more consistent with someone who is actively attempting to engage in deception on his own initiative. There is no evidence that the accused requested that Mr. Plumb demonstrate how he purportedly threw the knife over the roof of the motel.

188Before police arrived, Mr. Plumb said he asked the accused what he should say. According to Mr. Plumb, the accused told him to say that the deceased came at them with a knife and when Mr. Plumb pushed him up against the car, the knife went into the deceased’s stomach.

189The accused went into room 18. Mr. Plumb indicated he remained outside when the accused went into room 18 with Ms. Dombroskie and Ms. Morden.

190Mr. Plumb said the accused told him to say that the knife was thrown in the field behind the Pine Tree Motel.

191This conversation took place in front of an older gentleman according to Mr. Plumb. I have concluded that the older gentleman in question is Mr. Pepper, who testified for the defence. Mr. Pepper was not seriously challenged in cross-examination. His evidence contradicted Mr. Plumb. I found Mr. Pepper to be a credible and reliable witness as I indicated. Mr. Pepper said that Mr. Plumb had indicated that he had been the one who stuck the victim with the victim’s knife and thrown the knife away. Mr. Pepper said that the accused was not telling Mr. Plumb what to say. I accepted his evidence and, as I mentioned, that evidence about what Mr. Plumb said is not admissible for its truth, but merely because it demonstrates an inconsistency between what Mr. Plumb said on a prior occasion and what he said at trial.

192Mr. Plumb also told a truck driver who offered to help that he should leave. His stated reason for doing this was so that the individual would not be questioned regarding what had transpired.

193Mr. Plumb testified that the accused went into room 18, Mr. Plumb went in behind him and then Ms. Dombroskie entered the room. However, he claimed that the accused came out before he and Ms. Dombroskie were in the room. He believed that they were probably having a bong toke at the time. He said that only he and Ms. Dombroskie were in the room when he put the knives in the tattoo bag.

194The knife went into his pocket at about 6:36:44, just as Ms. Coulas is backing out of the parking spot. At the 6:40:13 mark on the video, Mr. Plumb claimed that he picked up the deceased’s hat from the ground. He said it looked like he picked something up, but there was nothing there to pick up. At the 6:40:28 mark on the surveillance video, he said he was picking his nails. It did not appear as though Mr. Plumb was picking up the deceased’s hat. I am not able to discern what object he was reaching for on the ground due to the quality of the video, however.

195Mr. Plumb and the accused ran to the motel office to get some help.

196Mr. Plumb indicated that there was no discussion with the accused in advance as to who would claim they threw the knife. Mr. Plumb said that the officer suggested that Mr. Plumb had thrown the knife as he looked like he had a good arm on him. It seems unlikely to the court that a police officer investigating a potential homicide would make such a suggestion, especially in a case where there may be more than one suspect. I did not accept that the officer was the one who suggested that it was Mr. Plumb who threw the knife away.

197Mr. Plumb testified that the accused smoked the bong which was in his room on the floor or on the table. The last time he used his bong he left it on the floor. This evidence, along with Mr. Plumb’s evidence regarding where he left his knife, was relevant to whether the accused would have known where to retrieve the knife from room 18 in the time allowed.

198Mr. Plumb claimed to recall that the knife which was believed to be the murder weapon was on the table near the green trays when he last saw it. He used it to clean his buster. Mr. Plumb claimed his ADHD caused him to organize things constantly. He testified that the red knife was not in the box in the drawer but was simply in the drawer.

199Ms. Dombroskie did not testify that the green and black snake eye knife was on the trays. Given the state of Mr. Plumb’s memory, I do not accept that he could recall where he left his green and black snake eye knife.

200The accused and Mr. Plumb were both taken to the Killaloe OPP station. Mr. Plumb was aware that the accused was present in the police station. He said he could hear him being spoken to by police.

201Mr. Plumb had spoken to duty counsel prior to speaking to the detective. He said he was frightened and said he sort of stuck to the story that the accused had instructed him to relate to the police. He told police that the victim had the knife. He told the detective that the knife went into him when he pushed the victim against the car. However, Mr. Plumb related many things to the detective which, on his evidence, the accused had not told him to say.

202Mr. Plumb agreed that when he first spoke to police and told his story he did not say that he saw the victim with a knife in his hand. This was despite insisting that the accused had told him to relate this to police.

203Mr. Plumb said that the accused asked him to tell the officer that Mr. Plumb had grabbed the victim, the victim had the knife and when he pushed him up against the car, the knife entered the victim’s stomach.

204He agreed at this point that he did not relate this to the police. When asked by police if he saw a knife at any point, he agreed that he said he did not see one and “they must of got rid of it before I black – come out of my black out.” He agreed he was suggesting that he did not see a knife.

205He also agreed that when the officer asked him if he had been told there was a blade there, he agreed and said he was told there was a blade, which is not what the accused had purportedly told him to say.

206He did not say that the victim had a knife and was approaching with a knife, nor that he pushed the victim into the car while he had a knife, nor that the knife that the victim was holding went into the victim when he was pushed into the car. None of these listed things that the accused had instructed him to tell police did he actually tell police in his July statement.

207He agreed that he told police that both Ms. Dombroskie and the accused told him that the victim had a blade. He agreed that in this part of his statement he is certainly confirming that he did not see the victim approach with a blade, which was not what the accused had purportedly told him to say. At 6:50:43 in the video running time is when Mr. Plumb said that the accused told him in front of the old guy and within his earshot, that the accused told Mr. Plumb to say that the victim approached with a knife, and he pushed the victim into the car while he was holding the knife and as a result of the victim being pushed into the car, the victim stabbed himself with his own knife.

208This was the only time that the accused said this to him according to Mr. Plumb. He claimed he did not know if the accused had discussed this scenario with Ms. Dombroskie. He said he did not know that Ms. Dombroskie mentioned the victim having a knife in her 9-1-1 call. This would have meant that Ms. Dombroskie would have had to have had that conversation with the accused before the accused had that conversation with Mr. Plumb. This seems unlikely based on the evidence I heard, but it also contradicts Mr. Plumb’s evidence.

209At 6:50 approximately on the video running time is when, according to Mr. Plumb, the accused instructed him what to say to police. However, about nine minutes earlier, when Ms. Dombroskie is on the phone with 9-1-1, Mr. Plumb agreed that Ms. Dombroskie tells the dispatch that the victim had a knife and that he accidentally stabbed himself. Mr. Plumb agreed that when he heard Ms. Dombroskie say that the victim had a knife that he did not correct her. He also agreed that when the accused later told him what to say to police, he did not think it strange that Ms. Dombroskie had already said those things. Mr. Plumb said he was not listening when Ms. Dombroskie was speaking to 9-1-1. The video, however, appears to depict him standing right next to Ms. Dombroskie as she says these words to the 9-1-1 dispatcher.

210Mr. Plumb said that while he heard the accused speaking to the dispatcher, this was because the accused was loud. He said he started to tune everything out just at the point when Ms. Dombroskie said that the victim had a knife. Again, I found that Mr. Plumb was conveniently claiming to tune out, just at the point where his evidence is incontrovertibly contradicted by an inconvenient fact.

211In his July statement he admitted that he said that the deceased was swinging at everyone. This was not true as evidenced by the surveillance video. Mr. Plumb agreed with defence counsel that after a certain point in his statement, what we see is not actually things that Mr. Plumb remembered, but just things he said, which might not be true. When the officer asked him to elaborate on what he meant at certain points, he did not remember so he just said things and many of them were not true.

212In his July statement he said that the deceased swung first, and that he punched the accused (Moneyface) in the face first. He said that the accused swung back connecting with the victim and that the victim attempted to throw a third strike. All of these statements were not true. However, he said that he had honestly remembered the victim throwing the first punch.

213Mr. Plumb testified that he did not discuss his ADHD with the detective. He said he did not recall discussing his memory issues with the detective, but said it was possible. After refreshing his memory with a transcript of his July 22, 2021, statement, he did recall that he made mention of his memory issues to police. He also agreed that he told Det. Kohls that he has ADHD blackouts while under stress.

214When first asked to describe his blackouts he said, “[i]t’s like when I get into like heat of the moment type thing with myself or anything that is going on I get really, really upset with myself and things that are going on around me, and then I get to a point where I will start blaming myself for things.”

215When asked to clarify he said that when there was so much going on he will black out and will then start blanking things out as to what is happening, and then when it all comes down to it, he starts to panic and starts to overthink things.

216When asked if he had a memory of events on July 21, 2021, he said that things come back to him here and there and even when he sleeps, he will dream of what actually happened through what actually happened that night and it is hard to sleep through the night when he is dreaming about what is actually going on. When asked if he remembers the things he has testified to, he said there are jogs of his memory that have come back since everything that has happened.

217The Crown gave him an example by asking if, for example, he recalled that he was cleaning his buster. He replied that it was his habit to clean his buster. The Crown tried again, by asking him if he recalled speaking to the deceased that morning, for example. He said:

Well, that is pretty much – yeah, because me and Gilbert always had good memories, so if it’s good memories, I’ll remember it like that, and I’d be able to talk about it for years, but anything bad and – anything from my bad past even from me being a child, from me to try to remember it even to this day, it – some things come back to me and then some things come back to me that don’t even seem like that actually happened but apparently it did happen, it is just like a future vision type thing. I don’t even know how you would explain it.

218The Crown gave another example, by asking Mr. Plumb if he recalled holding the victim’s hands. He replied that more or less what brought that memory back was rewatching the video, more of the memory started coming back on what happened that day and what actually happened.

219When he spoke to the detective, he agreed that he remembered some things, but he was not sure to come out and say it because he figured he was already in trouble and it would – telling the things he honestly remembered – would just keep putting him in trouble for anything that he would of said, so he just waited to be in contact with a lawyer, and once he got in touch with a lawyer he talked.

220Mr. Plumb admitted that he told the officer that Ms. Coulas was not present for the stabbing of the victim. This was not true.

221After refreshing his memory from his statement, Mr. Plumb recalled that he said he was also raised not to “rat” or “snitch” on others. However, his father also told him that if something is the truth and it needs to come out, then it is not really ratting. They had this conversation when he was on house arrest. His mother grew up in the drug game, he said, and lives with a dealer.

222Mr. Plumb said he was afraid to tell on the accused because he knew he was going to the detention centre in Ottawa with the accused. To be known as a rat would be to risk being beaten in jail. He also was relying on what the accused told him that no one would be in trouble if he stuck to the story the accused purportedly provided.

223Even though he was on conditions not to speak to the accused, he did speak to him in custody. He said the accused approached him and he just sat there and spoke to him out of fear. He was released on bail and went to live with his father one week after being incarcerated. His charges were stayed on May 13, 2022. He was subpoenaed to court. He then provided a statement to police. He provided a DNA sample while he was on house arrest.

224He has a tremor in his hand which is related to his ADHD when he is under pressure. He lost about 30 pounds due to depression and PTSD after the stabbing.

225He agreed that despite promising to tell the police the truth, he repeatedly lied in his statement to police in July of 2021.

226He agreed that when gave a second statement in December, he had already watched the surveillance video tape from the Pine Tree Motel which was provided in disclosure. During the second interview he provided police with additional information. Some of the corrections he made related to things he had observed on the video.

227In his July statement, he said he went along with the accused’s version of events and told police what the accused told him to tell police, including that the victim approached with a knife, and that he pushed the victim into the car and the knife had gone into him, because of what the accused had told him to say and partly due to the fact that he feared the accused.

228Mr. Plumb agreed that after watching the surveillance video he noticed he was wrong about who threw the first punch and wrong about whether Ms. Coulas was there or not, and the video showed no one throwing a knife over the building. He also agreed that he added to the December statement that the accused told him he had stabbed the victim and also that he said “why did you make me do this” to the victim. He also added that the accused slipped the knife into his pants and that he put that knife into his girlfriend’s tattoo bag. He agreed he told the police that he had not seen the accused or the victim with any knives.

229When asked if he had been in lots of fights, he said no. However, in his statement to police he said he had been in lots of fights. In his evidence he said that he has been around a lot of fights, not involved in a lot of them, despite his statement to police.

230He agreed that he said when stuff gets out of hand, people get pummeled into the ground. But he said he did not mean into the ground. However, he agreed that in his statement to police he suggested that if he fights when he is not intoxicated, he knocks people out. He said he had only been in one severe fist fight, and he hit the person and the person was knocked unconscious. Although he told the officer he had been in lots of fights, in truth he has not had a lot of experience fighting.

231He also agreed that he had sprayed pepper spray at Ms. Dombroskie’s former boyfriend Jordan Archambault.

232He agreed that he grabbed the victim easily and pushed him to the car. He agreed that as soon as he grabbed the victim with both hands the victim was instantly helpless. Although he initially denied throwing the victim, after reviewing the video he agreed that he did throw the victim but said he did not mean to do so.

233He agreed that the deceased had been angry from the start of the morning and that the deceased talked tough.

234He agreed he had a bad memory. Without seeing the transcripts, he said he could not recall much of his July statement to police. He agreed that he had told the Crown that he could not recall if he brought up his ADHD in his July statement. He agreed in cross-examination that he used the term ADHD five times in his statement and made eight references to having blackouts.

235He agreed that he told police he could not recall what happened when he was in an ADHD blackout, but said he meant “in the brief of the moment”. It is unclear to the court what that means.

236If he is in a blackout, he cannot recall what has happened during the blackout. He told the officer that his blackouts are so bad that he had been in arguments with his father and had no memory of the argument. A blackout is a period when he cannot recall anything he said.

237He agreed that a week before the incident he had seen the victim beat up another man to the point that the man was bloody and bleeding. He agreed that he knew the deceased could be mean and could handle himself in a fight too.

238The deceased also became nastier when he drank. From early in the morning the deceased expressed an inclination to punch out the accused. He agreed that he tried to explain to the deceased that nothing sexual had happened between the accused and Ms. Coulas, but the deceased would not accept that suggestion, and that evidence in relation to the deceased beating someone up earlier was not admitted for a Scopelliti purpose but was admitted solely as it informed Mr. Plumb’s state of mind.

239Mr. Plumb said that the only thing he recalled from the initial fight was at the end the accused yelled something about “go die” but then the deceased turned around said “yeah, we’ll see.” However, he agreed that in his July 22, 2021, statement he said that the deceased called the accused a goof, calling him “this and this” and that is when the deceased started making threats. Mr. Plumb said that the deceased said: “You guys are all fucking retarded. I hope you guys all die and stuff like that.”

240He agreed that the deceased said he hoped that everyone died before the accused said something about dying back.

241As I indicated, the evidence of Mr. Rumleskie’s fight before the day of his death went to Mr. Plumb’s state of mind, and not Mr. Rumleskie’s propensity for violence.

242Mr. Plumb agreed that he embellished details regarding what Ms. Coulas said when she left at the time of the fight. In fact, Ms. Coulas was present for the fight. He agreed that in his interview he became aware that the officer knew that Ms. Coulas had been present for the fight and that the officer had seen the video which would show Ms. Coulas’s presence at the fight.

243When the officer started hinting that he knew that Ms. Coulas was present, Mr. Plumb agreed that this is when he said his blackout point probably hit. He agreed he was lying about when he blacked out to the officer to continue to lie to the officer.

244Mr. Plumb insisted that no one discussed what had gone on with the victim when they drove to the reservation. He testified that when they drove by the deceased as they left the motel for the reservation that all the car windows were down. There was no music on and no Bluetooth. However, in his statement he said that no one could have yelled out of the car windows as all of the windows were up and the music was cranked on in the car. This is not an important detail, but it does illustrate Mr. Plumb’s carelessness with the truth about matters no matter how inconsequential the detail.

245He said he made up the part about the music being cranked. He was not sure, but had also indicated, he was sure.

246When he repeats what he says happened to police, he agreed that he lied about the colour of the car that he pushed the victim into to preserve the fiction that Ms. Coulas had left.

247Initially in cross-examination, Mr. Plumb said that he blacked out after the event happened, not right as the fight was occurring. He denied that he was in a blackout when he threw the victim to the ground. He said that he was in a blackout from the time the last punch was thrown just up until he threw the victim.

248He said that because he was in a blackout, he could not remember anything. From the time of the last punch until just before he threw the victim onto the ground he had zero memory, he said.

249In his statement, however, when asked if he saw a knife at any point he said, “I didn’t see one and then they must of got rid of it before I [sic] come out of my black out”. He told the officer that he felt like he was useless because of his blackout and that he could have told the police so much more if he did not have the blackout. The last thing he said he remembered was coming to, slightly coming to as he was throwing the victim out of his arms.

250The officer asked him if he remembered pinning the victim against the car and he said that he remembered pushing him, but did not remember grabbing him, but apparently his girlfriend said he bear hugged him. It was not clear to the court how Mr. Plumb knew what Ms. Dombroskie had said about him bear hugging the deceased as he had not indicated that she had said this to him prior to his arrest, and he had denied having contact with her after his arrest initially.

251However, Mr. Plumb said that what he told the officer was not true, that what he said in his new statement was true, that he pushed the victim up against the car, bear hugged him and walked him away.

252He said that he was lying to the officer about having a blackout. However, mere moments earlier, he advised the court that he was in a blackout and could not remember anything from the first punch. When defence counsel confronted him with this inconsistency, he said: “Like, I was in a black out, but like it says here where it says I came out and then I remember up to a point. I don’t know how you expect me to explain it when there is a black out, I come to, and then I’ll come out, and then I’ll come to, and then I’ll come out, and then I’ll come to, and then I’ll come out.”

253Mr. Plumb then modified his answer to say that it was just a little blackout, the whole scene did not happen so long and when he came back to he was throwing him. He said he was lying to the police officer about the length of the blackout. He said that he only blacked out from the time of the last punch, until he pushed the victim against the car.

254Mr. Plumb agreed he was lying to the police about the blackouts but said he did not remember why he lied.

255Mr. Plumb agreed that despite telling the officer about his blackout, he did tell the officer that the only thing he could tell him was he was not the one who stabbed the victim. He may have blacked out, but he did not put a knife in him.

256Mr. Plumb agreed this was not saying that the knife accidentally went into the victim, which he claimed the accused had instructed him to tell police.

257He agreed that he remembered the bear hug, it was not necessary for Ms. Dombroskie to tell him about the bear hug, contrary to his earlier evidence. He agreed that the accused did not instruct him to talk about ADHD or blackouts to the police. All of the ADHD and blackout lies are lies he made of his own volition, he agreed.

258At one point in the interview, he told police that he thought he was the one that had caused, he thought he ended up pushing it inside of the victim, “like not me but when I pressed him up against the car.”

259He agreed he knew this was not true.

260He was putting it out there to mislead the officer, he said.

261He also said he was sure he did not stab the victim. When Mr. Huckabone asked him again if it is the truth that he was blacked out from the last punch to the push against the car, he said no. Then he said it was true. He agreed that he could not account for his actions during that time. He agreed he could not say that he did not do anything because he cannot remember what he did.

262He agreed that he cannot even describe where he was or what was going on during the blackout. He needed the video to recreate the memory. He agreed he did not have the memory in his head and was not remembering when he saw the video he was watching. There were two or three other times that he was blacked out, but he was in pretty much, he said.

263He could not remember the other times that he blacked out. Further, in cross-examination he agreed that he was blacked out from the time of the first punch which was at approximately 6:35:32 playing time on the Pine Tree Motel surveillance video. He agreed that he came out of the blackout at the 6:35:38 mark on the video. For those six seconds he agreed he was in a total blackout. He agreed with the suggestion that he could have stabbed the victim during those six seconds and not be aware of it due to his blackout.

264He agreed that the table on which the green and black snake eye knife was normally kept was messy and he actually had no independent memory of where the knife had been left, he just believed it was on the table.

265He agreed that when he spoke to police, he said he had one knife. In fact, he had three knives. He also lied about owning the green knife, telling police in July that he owned not the green knife, which was believed to be the murder weapon, but the red knife. He agreed that he lied to police about using the red knife to clean his buster. At trial he said he used the green knife to clean his buster.

266He did not know if he picked something up off the ground after the victim fell because he might have been blacked out.

267He agreed that he did between five and ten bong tokes over the course of the incident.

268At 6:40:10 on the video he walks over and appears to pick something up. He said he had no memory of doing that. He agreed he was in a blackout at that point. He said he had no memory of pushing Ms. Dombroskie back a step, not in an aggressive manner. He is depicted on the video giving her a bit of a push. He did recall saying to Ms. Dombroskie that paper towel would not help the wound. He could not say that he did not pick up a knife from the ground as he had no memory of that.

269Mr. Plumb did not recall his evidence in chief where he said that the truck driver should leave so that he would not be questioned. In fact, he denied saying that, and said he did not tell the truck driver that he should leave so he would not be questioned by a police officer. However, he did, in his examination in chief, say that he told the truck driver to leave, so that he would not be questioned.

270He agreed that his memory is terrible.

271He agreed that in his statement to police he lied when he told the officer that he heard the knife was thrown over the roof. He agreed that when he told the officer multiple stories about the knife being thrown over the roof that the knife had not been thrown over the roof. He also agreed that he demonstrated how the knife was thrown to the officer.

272He agreed that Mr. Lamoureux did not instruct him to make up the blackout story.

273He agreed he lied to police regarding whether one of his knives was used.

274He also agreed that at 6:35:22 the door to room 18 does not appear to open. Mr. Lamoureux’s head is not visible in the doorway. He agreed that at other times, other people’s heads are visible going through the door when it opens. It was suggested in this case that the accused could have entered room 18 after punching the victim, to retrieve Mr. Plumb’s knife. The court was also unable to ascertain that the door opened at the relevant time where it is suggested that the accused would have ducked into room 18 to retrieve the knife.

275Mr. Plumb denied being in contact with Ms. Dombroskie after being placed on bail conditions not to have contact with her. Ms. Dombroskie, however, admitted that she had spoken to him both during the lunch incident at trial, and on one prior occasion. I preferred the evidence of Ms. Dombroskie on this issue, as it was both against her interest, and given the length and significance of their relationship, it accords with common sense and is more likely.

276He denied telling the accused in the OCDC that he was surprised he was getting out on bail because he thought that he had actually stuck the deceased with the knife. I was unable to conclude that this statement was made.

277He agreed that he did not tell police in his July statement that the victim had a knife, although he insisted that the accused had instructed him to tell police that the victim had a knife.

278Mr. Plumb agreed that given his blackouts and also flashbacks, he could not be certain that the victim had not taken the knife from him at some point during the day.

279He did not review disclosure with his counsel, but only saw a short version of the video which showed the scene of the fight and concluded with the victim falling to the ground. He agreed that he watched more of the video in preparing for trial with the Crown.

280In re-examination he said that Mr. Lamoureux told police that the victim had a knife.

281He also agreed that he had told Det. Kohls that he thought he was the one who caused the injury to the victim when he pushed him up against the car. He said that the accused had given him those instructions.

282In re-examination, it was suggested to the witness that the term blackouts might simply refer to not remembering. For example, not remembering what he had for breakfast a few days earlier. The witness agreed with this suggestion. However, his description of his blackouts and even the following exchange which immediately followed the Crown’s suggestion that blackouts meant forgetting, belie the characterization of simple memory loss suggested by the Crown exchange:

Q: So, you don’t remember giving the dog away? A: No. Q: What about grabbing Gilbert? A: I came to at the end of grabbing him and that’s when I walked him away. Q: So when you use words like “I came to” …. A: I snapped back out of it. THE COURT: I snapped back out of it? A: Yep. Q: Tell me that that means? A: I don’t know how to describe how that means because it’s the only way I’ve ever described something else was—that’s how I’ve ever—was ever told when I describe a blackout or something and I look at somebody and I say I snapped back out of it. Everybody just goes right away and knows what it means.

283While the witness agreed that when he said blackout, he meant simply forgetting, he also related his blackouts to his ADHD and being under extreme stress. The state he described was of having no recall whatsoever of what had transpired during select periods of time, such as after the first punch, when he grabbed the deceased and pushed him up against the vehicle. His use of the phrase “snapped back out of it” also belies the characterization of simple memory loss suggested by the Crown.

284According to the witness, the accused had already put the knife in his pocket at the point that he was bending over on the video, and it appeared as though he was picking something up from the ground. He could not recall what if anything he picked up. He claimed he had already put the knife in the tattoo bag at this point. He also said that he put two knives into the tattoo bag which he grabbed off the table in addition to the green and black snake eye knife.

285Mr. Plumb was recalled with the consent of the Crown. He testified that he knew he was not allowed to speak to Ms. Dombroskie. He agreed that he spoke to her during a lunch break after he had finished giving his evidence, but while she was giving hers.

286He could not recall yelling “no knives” when the deceased came over to fight. However, he conceded it was possible he said that, as he was in a blackout for part of the fight.

287He denied telling anyone, including Emily Rumleskie, that he blacked out in the fight.

288He denied discussing evidence with Ms. Dombroskie.

Admissions:

289It was admitted that Mr. Plumb and Mr. Lamoureux submitted DNA pursuant to a warrant dated May 19, 2022. A blood seizure was also taken from Mr. Rumleskie which was submitted to CFS.

290Mr. Alderson of the CFS was conceded to be an expert with respect to body fluid identification and DNA analysis and interpretation and that includes the deposition, transfer and persistence of body fluids and DNA.

DNA Evidence:

291Mr. Alderson testified as follows:

• The deceased’s blood could not be excluded as the source of DNA on a black short sleeved tee shirt belonging to Mr. Plumb and dark-coloured Gucci jeans belonging to Brandon Lamoureux. The STR DNA results are estimated to be greater than one trillion times more likely if STR profile 1 originates from the deceased than if it originates from an unknown person unrelated to him.
• A Husky knife which became Exhibit 6 was tested for the presence of blood and none was detected. No further testing was conducted on this knife. The knife was located in the tall grass behind the motel.
• The deceased could not be excluded as the source of a male DNA profile from blood on the right side of the blade of the folding knife which was taken from Ashley Dombroskie. (This was the green and black, snake eye knife owned by Mr. Plumb.)
• The deceased could not be excluded as a contributor to Mixture 2 from the swab of the handle of the same folding knife. The STR DNA results are estimated to be four times more likely if they originate from the deceased and three unknown people than if they originate from four unknown people unrelated to him.
• The deceased is excluded as a contributor to Mixture 1 on the camouflage knife.
• The accused could not be excluded as the source of a male DNA profile from a bloodstain on the outside front left thigh of the dark-coloured Gucci jeans of the accused. The STR DNA results are estimated to be greater than one trillion times more likely if STR Profile 2 originated from the accused than if it originates from an unknown person unrelated to him.
• The DNA profile of the accused was compared to Mixture 2 from the swab of the handle of the folding knife taken from Ashley Dombroskie. The DNA results provide support for the accused not being a contributor to the mixture.
• The accused is excluded as the source of STR Profile 1 and as a contributor to Mixture 1.
• Jordan Plumb cannot be excluded as a contributor to Mixture 1 from the swab of the inside surface of the blade compartment in the handle of the folding knife from Ashley Dombroskie.
• The STR DNA results are estimated to be 17 million times more likely if they originate from Jordan Plumb and two unknown people than if they originate from three unknown people unrelated to him.
• Jordan Plumb cannot be excluded as a contributor to Mixture 2 from the swab of the handle of the folding knife from Ashley Dombroskie. The STR DNA results are estimated to be 150 times more likely if they originate from Jordan Plumb and three unknown people than if they originate from four unknown people unrelated to him.
• Jordan Plumb is excluded as the source of STR Profile 1 and STR Profile 2.

Evidence of Ashley Dombroskie:

292Ms. Dombroskie is 22 years old. She and Jordan Plumb were in a relationship in July of 2021. She has a son who is six months old with her current partner. She lives with her mother, Dawn Coulas, in Douglas, Ontario. She moved out of her home when she was 15 or 16 due to her mother’s relationship with the deceased.

293The deceased had long been regarded as a member of her family. However, as she became a teenager, she found him critical of her in ways which were hurtful, especially when he was drinking.

294She moved home to her mother when she was 17.

295She and Jordan Plumb moved in together a week after meeting in a skate park in Pembroke. They eventually moved to the Pine Tree Motel after the deceased arranged for them to have a room. The deceased also made sure they would not have to pay the extra $100 that they would otherwise have to pay since Ms. Dombroskie had a large dog.

296Gilbert Rumleskie had been living at the Pine Tree Motel for some time. Ms. Dombroskie said that she and Mr. Plumb visited the deceased prior to their moving in at the Pine Tree Motel.

297She went fishing with Mr. Rumleskie.

298Ms. Dombroskie and Mr. Plumb moved into room 2 and eventually moved into room 18.

299She worked at the Country Style donut shop on Highway 60. She would walk to work.

300She saw the victim frequently and they would have dinner at his barbeque outside of his room. However, two days before the victim died, Ms. Dombroskie distanced herself from the victim due to his drinking.

301Ms. Dombroskie said she met the accused when she and Mr. Plumb moved in. She would see him every couple of days.

302The evidence of the prior relationship between Mr. Plumb and the deceased, and Ms. Dombroskie and the deceased was relevant to motive, or more accurately, to a lack of motive for Mr. Plumb to stab the victim.

303However, despite Ms. Dombroskie maintaining that she had a friendly relationship with the deceased, she avoided him when he was drinking and left home as a young person directly due to his behaviour.

304Ms. Dombroskie had a tattoo kit and gave the accused a tattoo.

305Ms. Dombroskie was not a good historian and struggled with her memory of events. She could not initially remember the events prior to the death of the victim on July 21, 2021.

306She did recall that it was Mr. Plumb’s birthday, but when asked if they did anything, she could not recall.

307It was only when the Crown asked her directly if she recalled going to Pembroke the day before the homicide that she could recall her mother driving them to Pembroke to retrieve bike parts and a television for Mr. Plumb.

308Mr. Plumb, Ms. Dombroskie, Ms. Dombroskie’s mother Dawn Coulas and Brandon Lamoureux drove into Pembroke.

309They were gone for 2.5 hours.

310Ms. Dombroskie was unsure if she saw the victim that day. Ms. Dombroskie and Mr. Plumb shared the use of her Samsung A70 phone.

311The next morning, she arose at 5:30 a.m. to be in to work for 7:00 a.m. She walked up the highway to her job at Country time donuts.

312Her mother picked her up after work and they got to the motel at 4:30 p.m. They stopped in front of Mr. Rumleskie’s room, she said. Ms. Lacey Vanderzwaag met her there.

313She did not speak to the victim. They proceeded to room 18 with Ms. Vanderzwaag. Ms. Dombroskie said she got out of the car and went in to get her dog Bowser and then came back out to her friend’s van.

314Mr. Plumb was outside.

315The victim came over and was yelling and cursing at the accused. He was yelling in the accused’s face.

316She testified that Ms. Vanderzwaag told the victim that there were kids around and that he should stop cursing. Ms. Dombroskie told him to leave, and he did.

317She said that the victim said he was going to punch the accused. She could not recall exactly, but believed the accused called the victim a bitch.

318Ms. Dombroskie believed that the victim was angry because he thought something sexual had transpired between the accused and her mother, Dawn Coulas.

319After the deceased left the area, Ms. Dombroskie asked her mother to take her to the reserve to purchase cigarettes.

320Ms. Coulas drove Mr. Plumb, Ms. Dombroskie and the accused to the reservation to purchase cigarettes.

321At one point in the day, Ms. Coulas had also taken her daughter to the LCBO. Ms. Dombroskie could not recall if this happened before or after the arrival of Ms. Vanderzwaag. The group had a drink or two prior to leaving for the reserve, she said.

322Ms. Dombroskie reviewed texts received by her mother from the deceased. The texts indicated he was angry regarding what he believed had occurred between Ms. Coulas and the accused. This evidence was admitted not for truth, but for narrative, and also to shed light on Ms. Dombroskie’s state of mind on July 20, 2021 and the following day.

323Ms. Dombroskie denied any discussion regarding the context of the text messages when they were in the car. She also denied there was any conversation regarding the text messages when they returned, but she recalled the victim saying something about it when he came over to room 18 the first time. Given how angry the victim appeared to be, one might have expected that during the 30-minute drive to the reserve that there would be some discussion of the victim’s bizarre belief and misplaced anger, but according to Ms. Dombroskie, the texts were not discussed at all at that point.

324She indicated that the accused told her he went over to threaten the victim. While I found Ms. Dombroskie to be neither credible, nor reliable for reasons which I will expand upon at a later point, I did accept that this incident happened. The incident is partially corroborated in the video. While what is being said cannot be heard, the accused appears quite animated and is speaking to the deceased outside of the deceased’s apartment.

325The defence objected to this evidence being admitted, arguing that it was not included in the Crown’s discreditable conduct application. I found that the threat by the accused was part of the overall incident that day and did not require a separate discreditable conduct application. It was also a statement against interest by the accused and therefore not barred as inadmissible hearsay. The evidence is more probative than prejudicial and is relevant to the identification of the stabber.

326When the accused testified, he said he told the victim to stay away from them. He admitted he was angry with the victim.

The Stabbing of the Victim:

327When they returned to the motel after the trip to the reservation, Ms. Dombroskie was aware that there were more text messages from the victim to her mother.

328Ms. Coulas parked in front of room 18.

329Mr. Plumb got out of the car. She believed he went inside to secure another Smirnoff Ice. These were stored at the front of the room near the door. The accused did not enter room 18 but remained outside.

330The deceased came over almost immediately. He was yelling at the accused. The accused punched him, and the deceased fell to the ground. Mr. Plumb was on the driver’s side of the vehicle according to Ms. Dombroskie.

331Mr. Plumb grabbed the deceased. Ms. Dombroskie said the accused was walking away after he punched the victim. She was unsure if the fight continued momentarily at this point, or if Mr. Plumb simply grabbed the victim and pushed him against the car.

332The dog was inside the room, and then he was let out of the room, she said. This was not correct. A review of the video shows that the dog was outside of the room at the time of the fight. Ms. Dombroskie said that as she came around the side of the vehicle, Bowser ran beside her. She tried to grab his leash. The accused came along side of her, she said.

333The victim was in Mr. Plumb’s grasp then. The accused came up to the victim on her left-hand side when she was trying to grab the dog, she said.

334Mr. Plumb was still holding on to the victim from behind.

335She was unsure where the victim was at this point. The dog was jumping up towards Mr. Plumb and Mr. Plumb was holding on to the victim.

336Ms. Dombroskie said that Mr. Plumb was jumping up and then he kind of like stopped holding on to the victim for a second to push the dog down. The dog was jumping up. And then Mr. Plumb went to grab the victim again.

337Ms. Dombroskie testified that at this point the accused was on the cement step in front of room 18. Mr. Plumb swung the victim and pushed him. The deceased stood up and looked at Ms. Dombroskie, she said. He had a blank look on his face. His eyes were wide. He pivoted on his left heel and fell to the ground on his back, she said.

338Ms. Dombroskie said that she asked what happened and Mr. Plumb said “Brandon”, indicating the accused. Mr. Plumb appeared distraught and was crying. He told her to tell her mother to leave. He was crying on his bed, holding his head in his hands. Mr. Plumb did not testify that this emotional exchange took place.

339She tried to find paper towel or a towel to tend to the victim’s wounds.

340Ms. Dombroskie testified that the combination of Mr. Plumb’s crying and the way the deceased was acting on the ground led her to believe that the victim was hurt.

341When she went outside to check the victim, the accused was on his way to his room to get a phone. He was speaking on the phone to the ambulance dispatcher when he returned. He told the dispatcher there had been a stabbing, she said.

After the Stabbing:

342The dispatch operator asked to speak to someone calmer than the accused, so Ms. Dombroskie took the phone. She informed the dispatcher that the victim was having trouble breathing.

343The accused remained with the victim. Mr. Plumb remained in his room. He did emerge to tell her not to help the victim. She helped anyway.

344Ms. Dombroskie lifted the deceased’s shirt and saw the extent of his injuries. His intestines were outside of his body.

345The victim was trying to breathe and talk to Ms. Dombroskie.

346The victim was asking to be allowed to go to this room and when the accused came near him, he was getting angry and trying forcibly to get up.

347She did not recall if the accused said anything to the victim.

348When the police came as they were all sitting there, the accused told police that the victim had a knife and that he stabbed himself.

349The accused talked to Mr. Plumb regarding the victim having a knife. She did not know what Mr. Plumb’s reaction was to this statement by the accused.

350Police interviewed Mr. Plumb inside room 18, she said.

351Ms. Dombroskie was interviewed outside of room 18. She said she told police what she had heard had happened, which was that the victim had a knife. She then agreed she resorted to lying to the officer when asked for details.

352She told the officer that the victim’s knife was silver, despite not actually seeing a knife. She did not know why she lied. She just related what she was overhearing at the time and she “just went with that.”

353The description of the knife she provided was “just something random”, she said.

Murder Weapon Removed From the Crime Scene:

354Ms. Dombroskie moved to room 19. She took her tattoo bag with her. The bag contained the murder weapon in this case or what was believed to be the murder weapon. She claimed she did not know that the murder weapon was in her tattoo bag.

355Mr. Plumb claimed he never told her that he placed the murder weapon in her tattoo bag. He claimed he put it there to make it easier for the police to locate, yet never warned Ms. Dombroskie that she should not remove it, so that the police would be able to locate the knife. I rejected this evidence completely as being a tissue of lies.

356Given the nature of the relationship between Ms. Dombroskie and Mr. Plumb, it is my view that Mr. Plumb would not have put the knives in Ms. Dombroskie’s bag without informing her that he had done so. I also rejected Mr. Plumb’s evidence regarding putting all the knives in one place in the tattoo bag so that police could easily locate them. If Mr. Plumb put the knives, including the murder weapon into the tattoo bag so that police could locate the murder weapon more easily, it defies common sense that he would not warn Ms. Dombroskie not to move the bag.

357If he wished to conceal the murder weapon from police, which I find is the more likely inference, he would not have done so without warning Ms. Dombroskie, given how close they were.

358I found as a fact that the only logical inference on these facts is that Mr. Plumb put the knives in the tattoo bag to conceal the murder weapon, which was his knife, from police, and that Ms. Dombroskie took that tattoo bag from room 18 knowing that Mr. Plumb’s knife which was believed to be the murder weapon was in her bag.

359Ms. Dombroskie said that she had not seen the knives out on the 21st, but they were in boxes in a drawer.

360Ms. Dombroskie did not say that Mr. Plumb used the knives for cleaning his buster. She said he used the knife for cutting cheese and buttering bread.

361The accused had seen the knives a week prior when Mr. Plumb showed them to him, she said.

Reporting of the Knives to Police:

362Ms. Dombroskie went to stay with Mr. Plumb’s father, Adam, in the immediate aftermath of the stabbing. One night they were discussing ghosts. Somehow this discussion of ghosts prompted Mr. Adam Plumb to ask Ms. Dombroskie why she had knives in her tattoo bag. She claimed not to have known that they were there until she dumped the bag out. Mr. Adam Plumb told her to call police.

363This aspect of Ms. Dombroskie’s evidence was difficult to follow. The court was not sure how the telling of ghost stories would lead to the discovery of the knives as this was not made clear. The knives were eventually turned over to police.

364In my view, this explanation of the discovery of the knives by Ms. Dombroskie was yet another example of her attempting to explain aspects of her evidence which were obviously not true.

365Her evidence was littered with inconsistencies, inaccuracies, and in at least one instance, outright lies in the face of the court.

366For example:

• She told police Mr. Plumb had thrown the knife. She later admitted that he had not thrown the knife.
• She told police the knife was silver, yet also said she had never seen the knife. She agreed she had to resort to lies, and that she just went with it, giving a random description of a knife she had never seen.
• She lied about her mother not being present at the time of the stabbing.

367Her multiple statements to police were at times contradictory of each other and of her evidence in this trial and of the evidence of Mr. Plumb.

368However, one of her more glaring demonstrations of actual dishonesty occurred when Ms. Dombroskie actually lied in the face of the court regarding whether she had seen Mr. Plumb since his arrest. This was significant as Ms. Dombroskie, for the first time ever, testified that she heard the accused say “why did you make me do it” to the victim at a specific point in time located on the video surveillance tape. This was disproven in court, as the accused was on the phone to the 9-1-1 operator at the time and can be heard speaking, but not uttering the words claimed by the witness. Mr. Plumb also testified that he heard the accused make the same statement at the same point in time on the 9-1-1 video. The possibility of collusion between the witnesses was therefore a live issue in the court’s assessment. The following exchange occurred in cross-examination.

369Ms. Dombroskie had advised the Crown in her examination in chief that the last time she ever saw Mr. Plumb was when he was detained and placed in the police cruiser after the death of the victim.

370She repeated this assertion in cross-examination. She denied speaking to him even once since the time of his detention. She repeatedly denied ever speaking to Mr. Plumb since the date of the stabbing.

371Defence counsel then asked if she had seen Mr. Plumb over the lunch break during her evidence in this trial. At that point she said he drove by her, and he said hi, but she did not answer him. She insisted that she did not say a single word to him. She agreed she knew she should not be speaking to Mr. Plumb.

372She then repeated that Mr. Plumb spoke to her, and she said nothing back, that she did not say a word back to him, but then she changed her evidence and said she may have said hi.

373Defence counsel then informed her that she had been observed speaking to Mr. Plumb by Det. Holmes. It was only at this point that she conceded, speaking to Mr. Plumb. She said that he asked how she was doing and she said she was okay, and he said he was “meh.” He said he just wanted to make sure that she was okay. He said he had to go because he was meeting his friend.

374Ms. Dombroskie said that Mr. Plumb did not ask her what she was doing in Pembroke, or how her life was going. Ms. Dombroskie then admitted that she had spoken to Mr. Plumb on one other occasion. She agreed that in indicating she had no contact with Mr. Plumb, she had lied repeatedly to the court in a murder trial.

375It is fortunately rare that one is certain that one has witnessed a witness lie under oath in a criminal trial, particularly a trial as serious as this one. However, the court had the unfortunate experience of seeing Ms. Dombroskie lie to the court regarding contact with Mr. Plumb, and not admitting the truth until she was confronted with evidence that she had been observed by the police. Given Ms. Dombroskie’s complete lack of credibility, I rejected her evidence. I had no choice.

376Other examples of inconsistencies in her evidence also include that on one version of her evidence she thought the victim was just being dramatic by falling down and was not seriously injured. Yet, she also testified in another version of her evidence that she knew the victim was seriously injured because of the distraught demeanour of Mr. Plumb, who said “Brandon”, but was too choked up to say anything else which was intelligible.

377After prompting she agreed that she told the 9-1-1 operator that the victim came at her with a knife and was punching and kicking. The victim got stabbed, she told the 9-1-1 operator, and the knife got thrown into the woods.

378However, in her evidence at trial she said she was not sure what had happened to the victim at the time she grabbed paper towel.

379Ms. Dombroskie said she had time to think and over the last couple of days, she was trying to remember everything correctly. She now claimed she could remember a time when the accused was approaching the victim as he was laying there. The victim was becoming angry and wanted to go back to his room. The accused, she said, yelled at him and said some things. She could not remember exactly what they were, however, she claimed to remember that the accused said: “Why did you make me do it?” She had never indicated this to the police in any of her six statements.

380At the 6:43:36 mark on the video is when the witness said that the accused made this comment to the victim regarding “why did you make me do it”.

381She denied speaking to Mr. Plumb about this portion of his evidence on the Friday when she previously testified.

382When the video is played with the 9-1-1 call overlaid on it, the victim could be heard, even though he would have been speaking very faintly.

383However, the accused cannot be heard yelling “why did you make me do it” on the 9-1-1 call. The witness now claimed to not recall being on the phone at this point. However, she had agreed with 100 percent certainty that this is the point in time that the accused made this statement to the victim. In fact, the accused was telling the victim to stay down. (See Exhibit 28.)

384When defence counsel pointed out that this is also where Mr. Plumb said this happened, the witness denied discussing it with him.

385She denied communicating with anyone about this issue. When the remainder of the 9-1-1 call was played, it was clear that the accused cannot be heard asking the victim why he made him do it. He can be heard talking about the victim’s blood loss.

386She maintained that she did not speak to anyone over the weekend, specifically that she did not speak to Mr. Plumb.

387I cannot be certain that Ms. Dombroskie colluded with Mr. Plumb. However, I make the following observations. Ms. Dombroskie had never before given this evidence. Sometimes when a witness spontaneously recalls a significant fact for the first time at trial, there may be good reason why the evidence was not previously given. Trauma, such as the trauma surrounding the stabbing, can impact memory. However, in this case, Ms. Dombroskie is claiming to recall not only what the accused said, but initially at least, the precise timing of the utterance of the accused. The timing of the utterance coincides with the evidence of when Mr. Plumb said the utterance was made. Given the quality of Ms. Dombroskie’s memory for detail, it is unlikely that she would recall the exact timing of the alleged utterance by the accused years after the event. Given that it was established in court through the 9-1-1 call that the utterance was not made at the time claimed, the court has concerns regarding how Ms. Dombroskie came to conclude that the utterance was made at the time that she initially claimed, a claim which emerged for the first time in this trial after she met with Mr. Plumb and spoke to him and denied it repeatedly in this trial.

388The following exchange demonstrates the court’s point that her memory generally was poor, certainly not strong enough to recall the exact moment in time that she claims an utterance was made so long after the actual event:

Q: When you were asked about the 911 call we were just watching during examination-in-chief, when the Crown Attorney was asking you questions, you told the court that you did not tell the 911 operator what had happened to Mr. Rumleskie. Do you recall saying that? A: I didn’t remember. Q: I believe your answer was you didn't tell them what happened. Do you recall that? A: Yes. Q: You do recall telling the court that you did not tell the 911 operator what happened? A: Yes. Q: So why did you say a minute ago that you didn’t remember? A: `Cause I didn’t remember that I did tell them. Q: Okay. But that’s not what you told Her Honor. What you told Her Honour is that you didn’t tell them. Right? A: I don’t remember. Q: Okay. THE COURT: You don't remember what you told me? A: Yes.

389Here is another example of her evidence which demonstrates that she is a witness who has a poor memory of specific details, yet now claims to recall the exact moment at least initially that the accused made an alleged utterance, which she testified to for the first time in this trial:

Q: Sorry, was Jordan on the bed? A: Yes. Q: And you said you were facing the front of the room, right? A: Yes. He was too. Q: So he was facing towards the windows? A: Yeah. Q: And you were, you just said you were facing the front of the room as well, right? A: No. I was facing Jordan. Q: Okay. A: But I [was] on the left side of Jordan. Q: Okay. Perhaps I misheard you a moment ago. I thought you said you had been facing the front of the room as well. THE COURT: You did. You said you were both, “facing the front of the room.” And you also said “I was facing Jordan.” Do you remember which it was? A: I was facing Jordan. Q: So you were not facing the front of the room? A: No.

390She claimed to not remember if Mr. Plumb asked her to take the murder weapon away for him. In my view, even given the issues with her memory, this is not something she was likely to forget, especially since she had the knives in her possession, including the murder weapon.

391I found Ms. Dombroskie to be neither credible, nor reliable. She lied repeatedly regarding whether she had seen Mr. Plumb, not giving up the truth until it was obvious that she had been observed by police. Her evidence shifted repeatedly as to what she claimed she could and could not recall.

392I did not accept that she ever heard the accused say “why did you make me do it”. I suspect that she and Mr. Plumb may have colluded in regard to this evidence given how her evidence emerged in this trial on this issue, and her claim that she could recall the exact timing of the utterance, which coincided with Mr. Plumb, when her evidence on the details was weak.

393At the point where she claimed this was said, the accused was on the 9-1-1 call. His voice could be heard clearly, but he was not asking the deceased why he made him do it. Ms. Dombroskie recalled this evidence for the first time ever. Given her lack of recall of general details of the incident, this is difficult to accept. It coincides with the evidence of Jordan Plumb, who also claimed that the statement was made at the same time.

394In summary, Ms. Dombroskie was not a witness who could be relied on for the truth of her observations or her evidence. I rejected her evidence entirely, with the exception of her evidence regarding the accused saying he threatened the victim, which was partially corroborated by the video giving the court a degree of comfort that I could rely on this part of her evidence.

Evidence of Dr. Christopher Milroy:

395Dr. Milroy testified as an expert in forensic pathology including the causes, manner and mechanisms of death (including stab wounds).

396Dr. Milroy testified that the victim was 5’5” and weighed 110 pounds. His body had blood on his torso and legs. His torso sustained a single stab wound on the lower left side of the abdomen. The wound was 3.5 cm long vertically oriented. The small bowel protruded through the resulting deficit. The object of injury passed inwards from left to right of midline and perforated the small bowel twice and entered the aorta. The resulting massive hemorrhage in the retroperitoneum resulted in the death of Gilbert Rumleskie. There was 200 ml of blood in the peritoneal cavity. The wound was 4.5 cm left of the midline which hit the aorta. There was a small abrasion 1.5 cm above the stab wound.

397On the back of the elbow there was a superficial incision wound.

398The abrasions on the victim’s hands were from falling to the ground. Dr. Milroy described these as typical collapse injuries.

399The wound to the abdomen was caused by a sharp weapon, usually a knife.

400It is not anatomically impossible for the victim’s abdominal wound to have been self-inflicted, but the small wound on the back of the elbow could not be self-inflicted, Dr. Milroy said.

401If the victim was holding the knife in his right hand and was put in a bear hug, it would have been difficult for this to result in the injury on the left side of the abdomen. If the person administering the bear hug had a knife in hand, it was more likely to cause the injury than for the injury to have been self-inflicted, he said.

402The wound would have been easier to inflict if the victim had held the knife in his left hand and it was pointing in the right direction.

403The knife did not penetrate on the right side.

Evidence of Lacey Vanderzwaag:

404Ms. Vanderzwaag arrived at the Pine Tree Motel with her three children on the date the victim died.

405She testified as follows:

• She arrived at the motel around 4:30 p.m. with her three children. She was driving a white Dodge Caravan. Ms. Vanderzwaag wanted her three children to meet Ms. Dombroskie’s American Bulldog, Bowser. She did not say that she brought Ms. Dombroskie’s mail. Ms. Dombroskie had just returned from the reservation.
• Ms. Vanderzwaag parked by room 18.
• She observed the accused walking aggressively, like a gangster, she said. There was another older gentlemen, the deceased, who walked over right to where the rooms were and they started arguing. They were swearing at each other and Ms. Vanderzwaag told them to stop swearing in front of her children. They did not acknowledge her. She heard “I will slit your throat”. The accused was in the face of the victim. She believed it was the accused who said that. Ms. Dombroskie said it was a threat and the police could be called so it sounded like they got scared maybe and so they left one after another to the opposite side of the buildings. She was only there for ten minutes before leaving.
• In cross-examination she said that she did not hear what the deceased said to Mr. Lamoureux before the accused threatened to slit the deceased’s throat. She did not recall the victim calling Ms. Dombroskie a cunt. I have found as a fact that the deceased did call Ms. Dombroskie a cunt and a bitch.

Evidence of Police:

406The court heard from Officer Amber Bochek and Det. Philip Holmes. Officer Bochek submitted exhibits to the CFS. Officer Bochek testified that the Husky knife found in the rear field behind the bank of motel rooms was not submitted to CFS for testing, as there was no blood present to test for DNA, according to the officer.

Legal Analysis:

407The burden of proof in a criminal trial is proof beyond a reasonable doubt. This burden rests with the Crown throughout the trial unless and until the Crown can prove guilt to that standard. If I think the accused is probably, or likely guilty, he must be acquitted: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. The standard of proof beyond a reasonable doubt is inextricably linked with that principle fundamental to all criminal trials, the presumption of innocence: Lifchus.

408If I accept the evidence of the accused, or it leaves me with a reasonable doubt, I must acquit him: W.(D.).

409I am also free to accept some, none or all of the evidence of any witness. In this case, I accepted some, but not all, of the accused's evidence. I have indicated in my review of his evidence the areas where I believed him, and where I did not believe him, and the reasons underpinning my belief one way or the other. I shall not repeat all of that evidence here, but I considered all of it in my analysis of his credibility.

410The accused made appropriate concessions in cross-examination. In assessing his credibility, I did consider that he has numerous convictions related to dishonesty, including fraud. In assessing the reliability of his evidence, I did consider that he had taken ten methamphetamine pills and consumed alcohol that day. He also smoked cannabis. While I did not fully accept the evidence of the accused, I did not entirely reject it either. I found that at the end of the accused’s evidence, including the exculpatory evidence of Mr. Pepper, and the exculpatory aspects of the Crown’s case, that the evidence of the accused left me in a state of doubt.

411For example, I did not accept that he simply forgot that he was the one who punched the victim initially. This was not a minor detail, but an important one, and I did not accept that he simply forgot this fact when speaking to the police. In my view this case is distinguishable from the case provided by the defence: see R. v. G. M.C., 2022 ONCA 2, 159 O.R. (3d) 561, at para. 38.

412However, I accepted his evidence that he did not run into room 18 to retrieve the green and black snake eye knife belonging to Mr. Plumb. Given the truly short time period in which he was off camera view, and the fact that the door cannot be seen opening on the video, although at other times it can be seen opening, I was satisfied that Mr. Lamoureux did not enter the room when he momentarily stepped back from the fray.

413His DNA is also absent from that knife. While the absence of DNA is not conclusive, given the evidence in this case that DNA can be absent even where an object has been held by an individual, the absence of DNA is some evidence that Mr. Lamoureux did not wield the knife. Mr. Plumb’s DNA was on the knife, as was the victim’s DNA. It was Mr. Plumb’s knife.

414I was not persuaded that he was being intentionally dishonest with police when he advised police that he saw the victim flicking a knife with his right hand, as opposed to his left hand. Given the methamphetamine he had ingested, which I accepted, and the fact that he had little sleep at the time he gave the interview, and that he had been through a fight with the victim and witnessed the death of the victim and been charged with murder his confusion is understandable. All of those factors, in my view, would have impacted the accused’s ability to recall which hand the knife he claimed to see was being carried. I accepted the accused’s explanation that the knife was on his right side and was in the victim’s left hand. In speaking to police, he made the mistake of not thinking about the victim’s anatomical left.

415I did accept that the accused believed he saw the victim with a knife as he approached, and I also accepted that he no longer saw the knife after the victim had been punched and knocked down to the ground. As I watched and rewatched the video, I was unable to conclude that the victim was not flicking a knife, or trying to appear as though he was flicking a knife as he walked toward room 18 and the accused and Mr. Plumb. I also found that the relationship between the victim and Mr. Lamoureux was marked by periodic conflict. I considered his threats to the victim on the date of the stabbing as being evidence identifying him as the person who stabbed the victim. I also considered his prior stabbing of the wall in relation to the victim as being evidence which identified him as the stabber. I was unable to fully accept his evidence, but as I said, I did not entirely reject it. However, even though I did not fully accept the evidence of the accused, and even if I had not been left in a state of doubt by it – which I was – the whole of the evidence of which I did accept left me with a doubt. I will turn now to the whole of the evidence and explain why, when I considered the evidence as a whole, I was left with a reasonable doubt in this case.

The Whole of the Evidence:

416I begin with the evidence of Mr. Plumb. He testified that he may have stabbed the victim while in an ADHD blackout. While I found Mr. Plumb to be neither credible nor reliable, this admission against his own interest obviously caused the court concern regarding the identification of the stabber.

417Mr. Pepper testified that Mr. Plumb had made this same admission to him which was hearsay but contradicts his evidence at trial. I found Mr. Pepper to be an unassailable witness both in terms of his credibility and reliability.

418Mr. Plumb also claimed to be in an ADHD blackout at times when it was convenient, both during his police interview and in this trial.

419Mr. Plumb cannot remember the critical period between Mr. Lamoureux’s punch of the victim and the period when Mr. Plumb pushed the victim up against the car.

420He admitted to lying many times to police. He said his memory was terrible. His evidence regarding the discovery of the murder weapon in his pocket omitted the significant detail that it was his own knife, until prompted by the Crown’s question. I did not accept his evidence that he put the murder weapon and the other knives in his girlfriend’s tattoo bag to help the police locate the murder weapon. I did not believe that he did not tell Ms. Dombroskie what he was doing and why he put the knife in the bag. I rejected his evidence that the accused said to the victim “why did you make me do this?” This was established by the 9-1-1 call. He not only advised police that he threw the knife over the motel but went a step further and provided a demonstration of how he did it, captured on the video. This is the mark of a witness that will go the extra step in elaborating on an untruth. Many of the things he claimed that the accused told him to advise police, he did not advise police in his July 21 interview.

421Ms. Dombroskie is also neither a credible nor a reliable witness. Her evidence changed and shifted with the telling. She professed that her memory was very bad, yet claimed to recall for the first time, that Mr. Lamoureux said “why did you make me do it” to the victim. Interestingly, this was something which Mr. Plumb did not initially disclose to police, but later indicated had been said.

422The 9-1-1 call which is overlaid the video of the scene confirmed that the accused was not making this statement to the victim at the time claimed by Ms. Dombroskie, or Mr. Plumb.

423Mr. Lamoureux can be heard saying things to the victim, but none of them were the statement claimed by Ms. Dombroskie and Mr. Plumb.

424She lied to this court about her contact with Mr. Plumb. Repeatedly. I did not accept her evidence regarding how she discovered the knives in her bag, nor that she did not know the murder weapon was there when she left the motel after the stabbing. She misled police about seeing a knife in the victim’s hand, and on her own evidence, expanded on that lie by describing the knife’s colour to police.

425The evidence of Ms. Dombroskie and Mr. Plumb, when taken as part of the whole of the evidence, could not be relied on to establish guilt beyond a reasonable doubt. I have already extensively referred to the credibility and reliability issues related to Ms. Dombroskie and Mr. Plumb. I shall not repeat all of my findings again, but they were applied to the analysis of the evidence as a whole.

426The Crown urges the court to look to the surveillance video in this case, as part of the evidence of the whole, to find that the guilt of Mr. Lamoureux has been established beyond a reasonable doubt. I repeatedly reviewed the video of the fight in this case, and I am unable to find that I am satisfied beyond a reasonable doubt when I consider the video, as part of the whole of the evidence of the guilt of the accused beyond a reasonable doubt.

427The video is of a grainy quality. The images are small. Details are obscured. For example, no knife can be observed. Part of the incident is obscured by parked vehicles. This is a critical point in the video when Mr. Plumb pushes the victim up against a car.

428I am not satisfied that Mr. Lamoureux darted into room 18 to retrieve Mr. Plumb’s knife from the room after initially punching the victim. The timeframe when this would have had to happen was a matter of seconds. While Mr. Lamoureux knew Mr. Plumb had knives in his possession, I did not accept that the green and black knife was out in plain view as testified to by Mr. Plumb. Ms. Dombroskie’s evidence was that the knives were normally kept in a drawer. Mr. Plumb had a terrible memory by his own admission. I do not accept that he recalled this detail as to where he claimed his knife was left. I also did not see the door of room 18 open during this portion of the video, although it was discernible as open at other times.

429Mr. Lamoureux may have taken Mr. Plumb’s knife from his room earlier or at a different point in time, but the DNA evidence does not support the inference that the accused possessed the knife. Mr. Plumb and the victim cannot be excluded as contributing to the DNA on the green and black snake eye knife.

430In the moments before the victim walks up toward room 18, he repeatedly appears to be flicking his left hand. The victim may or may not have had a knife. The movements of his hand resemble the flicking motion that one might make if one were armed with a knife. The fact that no knife was recovered from the victim is not dispositive of the issue.

431In more than one instance, Mr. Plumb appears to be picking something up from the ground. Given the issues the court had with his credibility and his reliability, I cannot rely on his evidence to satisfy myself that the victim did not have a knife, nor that Mr. Plumb did not have his own knife in his hand.

432In order to convict Mr. Lamoureux, I must be satisfied that the circumstantial evidence was consistent with guilt, but rationally inconsistent with any other conclusion than guilt: Villaroman, at para. 13. I am not satisfied. In my view, there are other inferences that are inconsistent with the guilt of the accused in this case, including that Mr. Plumb, holding his own knife, accidentally pierced the victim’s abdomen while shoving him up against a car.

433In this case, the sharp-edged object believed to be the murder weapon was the green and black snake eye knife belonging to Mr. Plumb. Naturally, his DNA was present on that knife. The DNA of the victim was also present on that knife. The DNA of the accused was not detectable on the knife. This is not dispositive of the issue, but it does raise a concern that the murder weapon, which belonged to Mr. Plumb, and contained his DNA and which he hid in his girlfriend’s tattoo bag and which she took from the motel room points to him, and not the accused as the stabber in this case. The evidence of Mr. Pepper also satisfied me that Mr. Plumb said he may have stuck the victim with the knife when he shoved him up against the vehicle. This evidence was not admissible for its truth, as it is hearsay, but it contradicted his evidence at trial. And while Ms. Dombroskie was not a credible nor reliable witness, she did indicate that Mr. Plumb went into his room after arriving home from the reservation, although she said it was to get another Smirnoff Ice. Mr. Lamoureux did not enter the room. I also found it unlikely that the group were not discussing the threats and texts which were arriving from the victim to Ms. Coulas’s phone while in the car. While Mr. Plumb has no obvious motive to harm the victim, it is reasonable to infer that he may have armed himself prior to Mr. Rumleskie’s arrival.

434There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the trier of fact may unconsciously fill in the blanks or bridge gaps in the evidence to support the inference that the Crown invites it to draw: Villaroman, at para. 26.

435In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; Villaroman, at para. 35. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

436A reasonable doubt, or theory alternative to guilt, is not rendered speculative by the absence of evidence of the defence.

437The Crown urges the court to rely on the video in this case, as part of the evidence as a whole, to find that the accused is guilty beyond a reasonable doubt. I have considered the video along with the other evidence in this case. The video is grainy. No sharp weapons at all are in view. Mr. Lamoureux does make a shoving motion toward the victim, but I cannot be certain, based on the video, that Mr. Lamoureux stabbed the victim.

438The Crown points the court to R. v. Nikolovski, [1996] 3 S.C.R. 1197. The facts in that case are that the Crown introduced a videotape of a robbery recorded by the store security camera. The clerk who was the victim of the robbery was unable to identify the man who had robbed him. The trial judge found the accused guilty based on her own recognition of the accused as being the man in the security camera video. This decision was upheld at the Supreme Court of Canada.

439In that case, the issue was the identification of the robber. The videotape was of excellent quality and depicted the accused for a significant period. The tape provided convincing evidence upon which the trial judge could base her finding of fact that the accused was the person shown in the tape. That the store clerk could not identify the accused was found not to be significant.

440As Sopinka J. noted in dissent, it is important to bear in mind that in a case where the trial judge relies on video for identification, the trial judge’s observations are entirely untested by cross-examination and cannot be tested on appeal. The issue which the video goes to prove in this case is the identification of the person who stabbed Mr. Rumleskie. There are two men, Mr. Plumb and Mr. Lamoureux, who are pictured on the video, fighting with Mr. Rumleskie. Unlike the situation in Nikolovski, where the reviewing court could not see the person with whom the comparison on the video was made, a reviewing court in this case will be able to review the video, which was made an exhibit. I have reviewed the video many, many times. Having repeatedly reviewed the video, I am unable to be satisfied beyond a reasonable doubt that the video establishes that Mr. Lamoureux stabbed Mr. Rumleskie.

441I have considered the whole of the evidence in this case. It is true that the discreditable conduct evidence, the threats made by the accused toward the victim, the victim’s threats to the accused, all point to the accused as being the person who stabbed the victim. The hostility between the two men, and the victim’s burning jealousy of the accused also give rise to an inference that it is more likely than not that the accused is the person who is identified, and who had a motive to stab the victim.

442I considered the threats exchanged by both men, and the threat overheard by Ms. Vanderzwaag. I considered the victim approaching the accused and saying: “You are dead Moneyface”. This would suggest that the accused stabbed the victim in retaliation. Further, I considered that the accused has been stabbed in the past and that his brother had recently been stabbed to death. In my view, this evidence made it more likely that the accused stabbed the victim.

443As I explained, the video alone does not resolve the issue of who stabbed Mr. Rumleskie. While Mr. Plumb lacked an obvious motive to stab the victim, certainly a much less obvious motive than the accused, I did not accept that he was not angry over the victim insulting his girlfriend by calling her a cunt. The force with which he threw the victim to the ground, in my view, belied his claim that he was merely trying to protect the victim from the accused. I also rejected the evidence that Mr. Lamoureux instructed him what to say to the police.

444Mr. Plumb gave a version of evidence that had Mr. Lamoureux giving him instructions as to what to say to police in front of the older man who the court learned was Mr. Pepper. He testified in a credible and straightforward manner that Mr. Plumb said that he may have accidentally caught Mr. Rumleskie with a knife when he pushed him up against the vehicle and that he had disposed of the knife by throwing it in the bush. As I indicated, this evidence was not admissible for the truth of its contents, but it contradicted Mr. Plumb’s trial evidence. Mr. Plumb testified that the accused instructed him what to say to deceive police in front of Mr. Pepper. Mr. Lamoureux denied that this happened, and Mr. Pepper’s evidence corroborated Mr. Lamoureux’s version of events. Mr. Lamoureux also was an intelligent individual. In addition to the evidence of Mr. Pepper, I also did not accept that Mr. Lamoureux would instruct Mr. Plumb to obstruct justice in front of an independent witness. Therefore, I concluded that Mr. Plumb’s evidence in this regard could not be relied upon.

445The defence argued that there is only one place on the video where the accused could have potentially had the opportunity to stab the victim and that at no other time is there anything that looks like what could conceivably be a stabbing motion.

446I agree with the defence that the most likely time for the accused to have stabbed the victim was at that moment when the accused shoved the victim just before Mr. Plumb threw the victim to the ground. However, given the quality of the video recording, I am not able to find that this is the only time where the accused could have had the opportunity to stab the victim.

447Therefore, while I accept that at the time the Crown alleges that the accused stabbed the victim, that the victim’s abdomen is facing away from the accused, and that Mr. Plumb has the victim in a bear hug with his chest on the victim’s back, I cannot say that were the accused to have had a knife in his hand at that instant, he would not have made contact with the victim’s torso 4.5 cms left of anatomical midline, where the fatal injury was located.

448The defence theorizes that at most the accused would have stabbed the victim in the left side, if not in the back, or more likely Mr. Plumb’s side or back as his body was between Mr. Lamoureux and the victim.

449However, given the grainy quality of the video, and the frame rate of the video, I am not satisfied that there was no opportunity for the accused to have stabbed the victim aside from the one incident which looks like a shove, which is where the Crown also theorized was when the fatal blow occurred. Mr. Rumleskie, according to Dr. Milroy, also suffered a superficial incision wound on his right elbow. There is only one shoving motion which can be discerned on the video. Dr. Milroy testified that this wound could not have been inflicted at the same time as the abdominal wound.

450My reasonable doubt in this case is based on the whole of the evidence which I did accept, including that the blade of the green and black snake eye knife had the victim’s DNA on the blade. Mr. Alderson from the Centre of Forensic Sciences testified that four persons had contributed to the DNA source on that knife. The DNA evidence provided support for the inference that Mr. Lamoureux was not a contributor to the DNA mixture found on the knife. The victim could not be excluded as a contributor to the DNA mixture found on the knife handle. Mr. Plumb could not be excluded as a contributor to the DNA mixture found on the knife handle.

451Mr. Alderson testified that a rough object such as the green and black snake eye knife is a good recipient for DNA, meaning DNA is easily transferred to that item.

452The Crown theory is that the accused opened the rough textured knife, gripped it to stab the victim and closed the knife, as it was dropped into Mr. Plumb’s pocket by the accused. This DNA evidence leaves me in doubt that the accused handled the green and black snake eye knife.

453The absence of evidence can give rise to a reasonable inference: see R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at para. 72.

454Dr. Milroy testified that it is unlikely that the fatal abdominal wound and the wound on the back of the victim's elbow occurred from the same motion with the sharp object.

455Where the Crown’s case is based on circumstantial evidence, I am required to consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. What is not required is a negativing of every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. The Crown must prove that each essential element of the offence is the only reasonable inference available on the evidence taken as a whole: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 36.

456Such circumstantial evidence must be assessed as a whole, rather than on an individuated basis: Lights, at para. 37.

457Defence friendly inferences can be grounded in a lack of evidence. This means that the trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience: Lights, at para. 38.

458I did not consider the accused’s evidence regarding Mr. Plumb’s alleged utterance that he was surprised he was being released from jail because he thought he stuck Mr. Rumleskie. Mr. Plumb denied making the statement and I was unable to find that it was made.

459In terms of the video itself, the video does show the victim marching actively toward the accused. The victim is moving his left arm in a flicking motion, as though he is flicking a blade of a knife, or is trying to appear as though he is flicking the blade of a knife.

460Mr. Plumb does appear to pick something off the ground after the victim was punched by the accused. This is a point in time when Mr. Plumb claimed to be in a blackout. Mr. Plumb then puts the victim in a bear hug and pushes the victim against the car. In his first statement, Mr. Plumb said that he was concerned that he may have put the knife into Mr. Rumleskie. I found as a fact that he told Mr. Pepper that this was when the knife stuck the victim. Mr. Plumb claimed to the court that he was in a blackout at this time. These statements contradict his trial evidence.

461In my view it is not an unreasonable inference that Mr. Plumb may have accidentally stabbed the victim with his own knife. The knife belongs to Mr. Plumb, and it bears his DNA. It does not contain the DNA of the accused. Dr. Milroy did testify that someone approaching from behind with the knife in their left hand, would align with the path of the wound, from anatomical left to midline. Mr. Plumb had also, on a prior occasion, demonstrated a protective attitude toward Ms. Dombroskie and his younger brother. He sprayed Jordan Archambault with pepper spray on a prior occasion. Given that the victim called his girlfriend vile names, it is reasonably possible that Mr. Plumb may have armed himself prior to Mr. Rumleskie’s arrival. Mr. Plumb was aware of how angry the victim was, and he had seen the victim recently demonstrate that he was capable of violence. That evidence was admitted solely in relation to Mr. Plumb’s state of mind and not for a Scopelliti purpose.

462I am unable to determine whether the victim had a knife, but he may have. The fact that Mr. Plumb testified that he may have stabbed Mr. Rumleskie while in a blackout ADHD state further deepens my doubt as to what occurred in this case. The fact that the knife in this case belonged to Mr. Plumb and had his DNA and the DNA of the victim on it, and not the DNA of the accused, contributes to the doubt raised in this case. While I considered the prior discreditable conduct and all the factors which suggest the accused stabbed the victim, I cannot dismiss the reasonable possibility that the accused was not the person who stabbed the victim. In my view, there is a reasonable doubt that Jordan Plumb may have stabbed the victim himself. For these reasons, I have found that the Crown has not proven the guilt of the accused beyond a reasonable doubt.

463Brandon Lamoureux is found not guilty and the charge is dismissed.

Anne London-Weinstein J.

Released: May 30, 2024

COURT FILE NO.: 21-885 DATE: 2024/05/29 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: His Majesty the King – and – Brandon Lamoureux Accused reasons for judgment Anne London-Weinstein J.