COURT FILE NO.: CR-22-0248-00 DATE: 2024-01-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King Serge Hamel and Kevin Regimbal, for the Crown Crown

- and -

Dustin Denis Moffatt Alison Craig, for the Accused Accused

HEARD: December 18, 19, 20 and 21st, 2023, at Thunder Bay, Ontario

Mr. Justice F. B. Fitzpatrick

Reasons For Judgment

Introduction

1I have rendered my decision in this case in writing. By the end of today I will provide the parties a copy of these final written reasons for decision as I have read them. This final version, which reflects what I am about to read out loud to all of you, will be entered as the next Exhibit at this trial.

2Dustin Moffatt is charged with second-degree murder and aggravated assault. The charges arise from an incident that occurred over a four-minute time span between approximately 12:06 a.m. and 12:10 a.m. in the early morning of June 29, 2021. The incident took place just past the north end of the James Street swing bridge. This bridge, over the Kaministiquia River, is a well-known Thunder Bay landmark.

3On June 29, 2021, 17-year-old Adrien Deschenes (“Adrien”) was stabbed in the chest and suffered a collapsed lung as a result. His 16-year-old friend, Kody Furioso (“Kody”) was also stabbed during the same incident. Kody died that night as the result of his injuries. This was a true tragedy.

4The Crown and defence agree that this case turns on the identity of the single assailant who stabbed both young men.

Legal Principles

5I will begin with a discussion of the legal principles that have informed my decision-making process in this case.

Circumstantial Evidence and Proof Beyond a Reasonable Doubt

6The burden of proof in a criminal trial is always on the prosecution. The Crown’s burden is to establish the accused’s guilt beyond a reasonable doubt. More is required than proof that the defendant is probably guilty. A trier of fact who concludes only that the defendant is probably guilty must acquit the accused. Still, proof beyond a reasonable doubt does not require proof to an absolute certainty or proof beyond any doubt. For the trier of fact to acquit, the doubt must not be imaginary, frivolous, or based upon sympathy or prejudice. A reasonable doubt is based upon reason and common sense, and is logically connected to the evidence, or the absence of evidence: see R. v. Lifchus, [1997] 3 S.C.R. 320.

7In reaching a verdict, the trier of fact must consider the evidence, which can be either direct and/or circumstantial.

8Circumstantial evidence can, in some cases, be sufficient to satisfy the standard of proof beyond a reasonable doubt. But extreme caution must be exercised in arriving at a conviction based solely on circumstantial evidence because there are dangers inherent in the path of reasoning involved when inferences are drawn from circumstantial evidence. The principal danger is the risk that I may fill in the gaps in the Crown's evidence by jumping to the conclusion that Mr. Moffatt is guilty, without giving adequate consideration to alternative explanations for the circumstantial evidence. This danger was explained in the Supreme Court of Canada’s decision in R. v. Villaroman, 2016 SCC 33 [Villaroman].

9At para. 35 of Villaroman, the Supreme Court of Canada stated that in assessing circumstantial evidence, inferences that are consistent with the accused’s innocence do not have to arise from proven facts:

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.

Credibility and Reliability

10In this decision I am going to discuss the evidence given by witnesses in court, by agreed statement of fact and from video. I will be discussing both the credibility and reliability of the evidence I received. In this case, credibility takes somewhat of a backseat to the reliability concerns of the evidence in terms of importance to the ultimate decision.

11I say this because in this matter I find that all witnesses who testified were credible. However, I will not be accepting all of what they said as being reliable. It is a distinction with a difference.

12In the case R. v. H.C., 2009 ONCA 56, Watt J.A. discusses the difference between credibility and reliability. In this frequently cited passage, Watt J.A. writes at para. 41:

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately;

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence. [Citation omitted.]

Video Evidence to Establish Identity

13The Supreme Court of Canada’s decision in R. v. Nikolovski, [1996] 3 S.C.R. 1197 [Nikolovski], is the leading authority on the use of video evidence for the purpose of establishing identity. Cory J., writing for the majority, states at para. 21 that:

The video camera ... is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed. The trier of fact may review the evidence of this silent witness as often as desired.

14Cory J. frames his analysis by noting the potential weaknesses of eyewitness evidence, and how the courts have long recognized the frailties of identification evidence given by independent, honest and well-meaning eyewitnesses. However, at para. 28, he also discusses what use a trial judge can make of video evidence:

Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.

15In terms of how the trier of fact should weigh the video evidence, Cory J. noted at paras. 29-30:

The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence.

Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so…. [The jury] should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt.

16In R. v. Hudson, 2020 ONCA 507, another identity case involving video evidence, Tulloch J. (as he then was) wrote at para. 47:

In light of the frailties of eyewitness evidence, which have been observed in countless cases, and the necessary cautions that a trier of fact must take when assessing such evidence, whenever there is reliable and continuous video surveillance evidence, it may be powerful and probative evidence for the trier of fact. [Citation omitted.]

The Evidence

17This is a case where what happened, and when it happened, mattered to my deliberations concerning the central issue in this case. The parties attempted to piece together the chronology of the events that night through an extensive number of video clips from various sources, which were filed as exhibits in this trial. I will discuss these videos in more detail below.

18The court also heard viva voce testimony from ten witnesses including Adrien. Mr. Moffatt did not testify. The parties also filed an agreed statement of fact, which among other things deals with the authenticity of the videos entered as exhibits. The agreed statement of fact is attached as Schedule 1 to this judgment, as I rely on it in coming to my decision in this case.

The Video Evidence

19The quality of the videos filed as exhibits varied. Starting with the police body camera footage, it was excellent in terms of sound, picture quality, and the accuracy of its time stamps.

20Secondly, there were a number of surveillance camera video clips from three different private sector landowners. These videos did not provide sound. The quality of the surveillance videos varied. Most notably they degraded somewhat in terms of the sharpness of the images portrayed after the sun went down. Most of the critical events for this matter happened in darkness. This had an unsurprising impact on the quality of most of the key video clips filed in evidence. However, the impact was not significant enough to render these nighttime videos unreliable in the determination of the central issue.

21The critical stabbing event in the early morning of June 29, 2021, occurred in proximity to a building owned by a private sector company, TBT Engineering (“TBT”). In Thunder Bay this building is historically known as the Paterson building. TBT had several surveillance cameras which were operating during critical timeframes that are relevant to this case. The majority of the exhibits entered at this trial were the videos taken from the TBT camera labeled Yonge St. Park. For ease of reference, when I refer to video footage from this TBT camera angle, I will refer to it as the “Park camera”.

22The videos produced from these TBT cameras generally, however, had some issues, aside from the nighttime darkness described above. For example, the parties agreed that there were gaps in certain of the video clips, and that the cameras were not recording footage continuously. The reasoning for the gaps in these videos was unexplained, but the parties agreed that there was no foul play on anyone’s part. Ultimately, the video clips were not available in a continuous stream for long periods of time; however, the Crown did attempt to enter the available video clips in as continuous a manner as possible. This was fair and appropriate conduct on the part of the Crown.

23I pause to comment that because of society’s experience with the film and entertainment industry, our expectations of how video should work and what it can show in situations involving murders or other heinous events may be overly optimistic. In this case, there were qualitative and quantitative issues with the video footage and, as described in Nikolovski, those factors are to be considered in the weight I should give to such evidence. However, as the trier of fact, I found the video evidence to have been of great assistance to the court in the search for the truth in this case. Reviewing the video evidence together with all the other evidence, I was able to get a very good and reliable idea of the events that occurred that evening.

24I find all that of the videos filed as exhibits at this trial are reliable in respect of the clarity in what they show. The weather that day, on June 28 and then into the early morning of June 29, was clear. There was no rain or fog to impact the camera shots. The videos were indeed silent, trustworthy, unemotional, unbiased and accurate, with complete and instant recall of the events.

25I also find that the videos are reliable because what is shown on some of them was confirmed by witnesses who gave viva voce testimony concerning the events of that evening. In coming to my judgment in this matter, I also rely on evidence from other video clips for which there was no specific viva voce testimony. I find that all of the videos I will be referring to are reliable because of the quality of what was depicted, and because they provided accurate pieces of the totality of the evidence that was provided to this court.

26Kody can be seen being stabbed on video from the Park camera. This particular video was nine minutes and 45 seconds long and was described by both parties as “the Stabbing Video”, which was entered as Exhibit 4. I will continue to use this descriptor in this judgment. There were a couple of issues with this clip. There was a 46 second gap in the Stabbing Video. It also had a couple of odd glitches. For example, the video clip seems to repeat itself in at least two spots.

The Stabbing Video

27It was agreed by the parties that at a minimum, the Stabbing Video shows Kody, Adrien, and a male person, the assailant, who was referred to as the “Man in Black” (“MIB”) by the parties. I will maintain this descriptor of the assailant as the MIB throughout this judgment. There is no dispute that the MIB is shown stabbing both Kody and Adrien in the Stabbing Video.

28There is no dispute that the actus reus and the mens rea necessary for a conviction of second-degree murder are demonstrated by the MIB in the Stabbing Video. There is also no dispute that the actus reus and the mens rea necessary for a conviction of aggravated assault in respect of Adrien is demonstrated by the MIB in the Stabbing Video. The issue in this case is whether the MIB in the Stabbing Video has been proven by the evidence beyond a reasonable doubt to be Mr. Moffatt.

29As I will explain, I find there is evidence in the Stabbing Video, along with certain other key video clips that were made exhibits in this trial, that provide reliable identification evidence regarding the MIB. This evidence is also critical in assessing whether the Crown has met its burden of proof.

30The timing of when the stabbing occurred relative to other things that are shown on other video clips is critical to a determination of the matter. The parties agree that the police body camera videos contained accurate time stamps. The surveillance videos from the TBT building, including the Park camera did not. However, it was agreed that the time stamps shown on the TBT video from various angles, including the Stabbing Video, was roughly six minutes fast. That is to say that if the video time stamp showed June 29, 2021, 00:06:01, the real time was actually June 29, 2021, 00:00:01. This is important because it further confirmed the accuracy of the video from the TBT building when considered together with the viva voce testimony provided in court.

31As a convention for this decision, from here forward, I am going to refer to the actual time stamp shown on any given video. Where an adjustment in time was agreed to by the parties, and where the actual time is important to the decision, I will show that adjusted time bolded and in brackets.

The Bannons

32The court heard viva voce testimony of two citizens who came upon the teenagers at the James Street underpass after they had been stabbed and had retreated from the crime scene. Completely aside from anything else to be said about this case, the court commends these two individuals, Leo and Tammy Bannon, for their acts of decency and compassion that evening. A modern-day version of the parable of the Good Samaritan unfolded that night. Adrien and Kody were in distress in plain view in a public street. Several cars passed by them before Leo and Tammy stopped. They called 911. Paramedics and police subsequently rushed to the scene. Unfortunately, Kody could not be saved.

33It is agreed that the time when the 911 call commenced, June 29, 2021, 00:17:48, is accurate. When that time is correlated with other video shown, it further assisted the court in determining the truth about what happened that evening.

Testimony Regarding the Fight

34In my view, the most important viva voce testimony concerned two distinct events of that evening. The first event was the fight that led to the stabbing of the two teenagers. The most important viva voce testimony concerning the particulars of the fight was provided by Adrien. There was also testimony from two witnesses, Chase Chaschuk and James Piccolo, who happened to observe the fight as they were passing the scene while riding a grain train in the course of their employment with CP Rail.

35The passing train is clearly seen in the Stabbing Video. I assess the evidence of these witnesses who observed the events from the train as credible. They were telling the truth as they recall the events now. However, the reliability of Mr. Chaschuk and Mr. Piccolo’s evidence has to be assessed in context. The men were primarily focused on their work. They were not expecting to witness a fight between two teenagers and another adult male at the time. It was dark out, although the train lights and the streetlights at the scene did provide some illumination. That said, their evidence did corroborate that the fight happened as depicted in the Stabbing Video. However, for reasons set out below, I find the details provided by both Mr. Chaschuk and Mr. Piccolo was not specific enough to assist the Crown in proving beyond a reasonable doubt that the MIB was Mr. Moffatt.

Testimony Regarding the Post-Fight

36The second distinct and important event for which the court received viva voce testimony was the police officers’ and paramedics’ acts of locating and then moving Mr. Moffatt to the hospital during the time period following the stabbing. This testimony was provided by several witnesses: Police/Constable Gunn, and paramedics Joseph Onichuk and Miles Vescio.

37The body camera video from PC Gunn also had clear sounds, pictures, and accurate time stamps. I used this body camera video in conjunction with other videos from the Park camera which simultaneously showed PC Gunn working on the scene (although the time stamps as noted above have a six-minute time difference). The Park camera video clips capture PC Gunn arriving on the scene, as well as his interactions with Mr. Moffatt. These clips were entered as Exhibits 54 through 62. These Park camera clips during the timeframe when PC Gunn discovered Mr. Moffatt is of great importance.

38The body camera footage shows the degree to which the TBT building and the grounds around it were illuminated that night. There is a lot of light from the TBT building and the surrounding light posts that were shining on this area. This body camera footage is also useful as it shows a close-up of the area by the train tracks at the north end of the James Street swing bridge where a portion of the fight occurred.

39PC Gunn located Mr. Moffatt at 00:39:32. This is the first time Mr. Moffatt is clearly shown on video lying on the ground, face up, with his arms outstretched. The grass is relatively short in the area where Mr. Moffatt was lying. The video speaks for itself as to the condition of Mr. Moffatt when he was found by PC Gunn. Mr. Moffatt appeared to be unconscious and had laboured breathing. PC Gunn flashed his light repeatedly in Mr. Moffatt’s eyes, which had no effect. PC Gunn called for back-up and EMS attempted to revive Mr. Moffatt and check for injuries. He stood over Mr. Moffatt for about ten minutes before the paramedics arrived. During that time, Mr. Moffatt did not wake up, nor did he move on his own. Other officers arrived at 00:43:14.

40When Mr. Moffatt was found by PC Gunn, he was wearing a short sleeve shirt, black pants, shoes with white soles, and had a wristwatch on his left wrist. Photos of these items, excluding the wristwatch, were entered in a photo exhibit book. Of note, the short sleeve shirt that Mr. Moffatt was found wearing was the same one he had on in the Exhibit 11 video taken just before 8:00 p.m., and also in the Exhibit 13 video from around 8:30 p.m.

41The paramedics arrived at 00:52:59, and Mr. Moffatt was eventually placed in an ambulance. I find from the viva voce testimony of the two paramedics who assessed him shortly thereafter, that Mr. Moffatt was experiencing an opioid overdose when he was found. The parties also both agreed to this fact. Evidence was also provided that when Mr. Moffatt was found, there was a pack of cigarettes in his pocket which had within it tinfoil packaging containing traces of fentanyl. Mr. Moffatt eventually became responsive after Narcan was administered to him in the ambulance.

42On the body camera footage, we see that PC Gunn was using a flashlight to search the scene before he came upon Mr. Moffatt, and then when he found him on the ground. This flashlight beam is clearly evident in the Park videos, and is particularly visible in the background of Exhibits 56, 57, 58, 61 and 62. Exhibit 61 from the Park camera is significant. At 00:45:47 (12:39 a.m.) PC Gunn can be seen with his flashlight near the north end of the bridge, on the grass. He then shines the flashlight to the south-east. He can then be seen walking quickly toward that area where he finds Mr. Moffatt on the ground.

43The location of this flashlight beam in the videos is very significant because from it, I can determine the location where Mr. Moffatt was found and compare it to the footage from the Stabbing Video. In Exhibit 62, I can see where PC Gunn shines his flashlight and then immediately finds Mr. Moffatt’s unconscious body. I compared this evidence to what is seen during the Stabbing Video at that exact location on the ground where I know Mr. Moffatt is later found by PC Gunn.

44Exhibit 62 is also helpful because a police cruiser, at 00:49:15 (12:43 a.m.), pulls up to the area and parks right beside the light post so that the cruiser’s headlights shine onto PC Gunn who is standing over Mr. Moffatt’s prone body. This light allows the viewer to see Mr. Moffatt’s body more clearly on the ground even from a distance. We also know from the body camera video and the viva voce testimony of PC Gunn that Mr. Moffatt’s body does not move from that spot on the ground where he was located until the paramedics arrive and put him in the ambulance.

Analysis

Correlating the evidence concerning the fight and its aftermath

45The Stabbing Video, and the subsequent Exhibit 62, come from the same TBT Park camera and depict the exact same angle of the scene but are taken about 30 minutes apart. Having had the benefit of viewing Exhibit 62 when PC Gunn found Mr. Moffatt, I was directed by defence counsel to focus on that same area while observing the entirety of the Stabbing Video. This was a very persuasive submission. I did do this in the course of reviewing the evidence submitted on this trial.

46From the TBT Park camera angle, there is a light post to the left of the road where the fight primarily took place. To the left of this light post just beyond the illuminated area, is where Mr. Moffatt was later found by PC Gunn with his flashlight. When I focus my attention on this area during the Stabbing Video, there appears to be two small white dots captured in the video. Upon a very close observance, the dots appear at the very beginning of the Stabbing Video at 00:11:11. When watching that spot in the video for its entirety, they appear to be there for the whole time. The location of these dots can be compared and correlated to the area where PC Gunn finds Mr. Moffatt. The dots appear in the same location as where Mr. Moffatt was ultimately found.

47The dots appear to move very slightly at 00:14:34. Then, from 00:14:49 onward, a faint outline of a body can be seen at that location close to the ground. These dots are well away from the places where the MIB is shown fighting and then stabbing the two teenagers.

48The Stabbing Video speaks for itself in a number of ways.

49First, the dots of light are seen in the very same area where Mr. Moffatt was found by PC Gunn as shown in Exhibit 62. The dots appear at the edge of a flood of light from the overhead light pole. Also, significant light is being cast in that direction from the TBT building, which is also seen from PC Gunn’s body camera video.

50Secondly, I interpret the white dots in the Stabbing Video to be the reflection of light off Caucasian skin tones. The footage from the Park camera was recorded in black and white once it became night time, however, the Stabbing Video along with Exhibit 62 allow me to ascertain how the light in the area reflected off Caucasian skin, and how Caucasian skin was captured on these particular videos. I note that PC Gunn and Adrien are both Caucasian males, which I observed from their appearance in court, and I know from the evidence provided that Kody was also a Caucasian male, which I can also see in the Stabbing Video. The MIB’s head and hands are also in the video, and light appears to reflect off his skin similarly to the others.

51The way the light reflects off the MIB, PC Gunn, Adrien and Kody, is similar to how the light reflects from the white dots which are just beyond the edge of the flood of light. Mr. Moffatt appeared to me to have Caucasian skin. He may be, or may identify as, a member of another ethnic group, but from looking at him in court, from seeing the photos of him in the hospital, and from watching the body camera video, I observe him to have a Caucasian skin tone.

52In my observation of the videos provided in this matter, Caucasian skin appears to reflect light. I interpret this to mean that the white dots I see in the Stabbing Video are reflections of exposed Caucasian skin on an individual. In particular it could be a reflection of an exposed arm or hand, or a head. PC Gunn’s body camera video shows Mr. Moffatt wearing a short sleeve t-shirt with his arms exposed and with his face and neck also visible. I also note that Mr. Moffatt was wearing a wristwatch. In my experience the glass face on a wristwatch is also capable of reflecting light.

53I find that the dots in the Stabbing Video which are located just beyond the flood of light shows a person lying on the ground. I find that those white dots are reflection of light off a Caucasian skin tone.

54Based on this evidence I conclude that Mr. Moffatt did not participate in the fight. I find that he was lying on the ground when the fight was occurring, well away from the area where the MIB stabbed Kody. He was lying there on the ground until he was later found by PC Gunn.

55This evidence leads me to have a reasonable doubt that the Crown has proven the identity of Mr. Moffatt as being the MIB. In my view this video evidence is exculpatory in favour of Mr. Moffatt.

Other Identity Evidence

56I am not persuaded that the evidence just discussed is overborne by the identification evidence provided by Adrien. Specifically, I find his in-court identification of Mr. Moffatt is not reliable. In R. v. Hibbert, 2002 SCC 39, at para. 50, Arbour J. of the Supreme Court of Canada gave caution as to the dangers of relying on eyewitness in-court identifications, albeit in a jury trial context:

I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. I am not persuaded that the instruction quoted above, to the effect that such identification should be accorded "little weight", goes far enough to displace the danger that the jury could still give it weight that it does not deserve.

57Adrien admitted in cross examination that he had seen pictures on social media of Mr. Moffatt following the stabbing. He also readily admitted on several occasions that he did not really remember particular identifying details of the assailant. By the time in the trial Adrien was asked to identify the assailant, and pointed to Mr. Moffatt, he was quite agitated. This is an understandable reaction given all that has happened to Adrien and the stress that naturally comes to people when called upon to testify in court. However, it does not elevate the value of that particular piece of evidence in light of all the other evidence I heard and saw during this trial.

58Adrien did give details of his assailant immediately when he interacted with Constable West at the James Street underpass at about 12:20 a.m., ten minutes or so after he was stabbed. This continued when Adrien was placed in the care of paramedics and into the ambulance. Adrien described the assailant as a “short white guy”. It is agreed Mr. Moffatt is five foot 10 inches tall, and that Adrien is five foot five inches. Mr. Moffatt is five inches taller than Adrien. Adrien did repeat his assessment of the assailant’s short stature on other occasions when he was speaking to police, and also described the assailant as being close to his height.

59Adrien described the assailant as a “thirty year old”. Adrien said the perpetrator had an accent of some sort. The paramedics who actually spoke to Mr. Moffatt that night were asked in court about whether they heard him speaking with some kind of accent. They testified that they did not detect any accent. Admittedly this is a very subjective descriptor and not particularly reliable by itself.

60Adrien mentioned the attacker had tattoos on his arms. The Stabbing Video shows the MIB to be wearing long sleeves. I accept the defence submission that it is difficult to discern if a person has tattoos on their arms when their arms are covered by sleeves. Nevertheless, I note that the photos of Mr. Moffatt from the hospital do not show any readily visible tattoos on his hands or arms.

61Adrien also noted that the MIB had short hair. At 00:15:02 of the Stabbing Video, the MIB is closest to the camera, and his head is clearly visible. He appears to have very short hair, or no hair on his head, because his entire head is reflecting light tones, as captured in the footage from this camera. The photos of Mr. Moffatt that were taken at the hospital, and the subsequent photos taken of him at the police station, show that Mr. Moffatt at that time had a buzz cut with dark coloured hair.

62Adrien also testified that Kody had punched the MIB during the fight. Kody is shown striking the MIB in the head or face in the Stabbing Video at 00:13:18. There were several close-up pictures taken of Mr. Moffatt’s head once he was at the police station the next day. I note that none of the photos show any recent cuts or bruises to his face.

63Adrien describes being pursued by the MIB after the teenagers had retreated to the James Street underpass. He testified that the MIB was on a bike, which he described as being either blue or grey. There was other video evidence of Mr. Moffatt riding a blue bike earlier during daylight. I do not interpret this to mean that Mr. Moffatt was riding his bike at any time after June 28, 2021, at about 11:30 p.m. Rather it is evidence that his bike was taken by someone else that night, since that bike was nowhere to be found in the police’s search for evidence in the area where Mr. Moffatt was found.

Mr. Moffatt’s Companion

64Another aspect of the totality of the evidence that leaves me with reasonable doubt deals with the portion of the Crown’s theory that the person that was shown accompanying Mr. Moffatt to the scene in the daytime videos was the individual who rode away from the scene of the crime at around 11:50 p.m. on June 28. The Crown submitted that this individual biked away from the scene leaving Mr. Moffatt behind, which proves beyond a reasonable doubt that Mr. Moffatt was the MIB who fought the teenagers 15 minutes later. As noted above, I have a reasonable doubt that this has been proven.

65Before I explain my reasoning for this conclusion of further reasonable doubt, I will lay out the relevant chronology.

66There is evidence, and the parties agree, that Mr. Moffatt was in the company of another person in the hours leading up to the stabbing. Winmar Property Restoration Specialists (“Winmar”) is another private sector company whose video surveillance footage was also obtained as evidence for this trial. The Winmar building is located at the corner of Gore Street West and Brown Street. Exhibit 13 is video footage from Winmar, and it has a time stamp showing June 28, 2021, 20:36:16. While the parties agreed the time stamp could not be verified as accurate, I find that the Stabbing Video time stamps and the 911 call, and what is then shown on the Winmar videos allows me to conclude that the time stamps on the Winmar camera are close enough to the real time for them to be considered reliable.

67Exhibit 13 shows Mr. Moffatt and a companion walking across the Winmar property towards a large metal pedestrian overpass (“pedestrian overpass”). The pedestrian overpass crosses overtop train tracks and provides access to Brown Street, which turns into Kingston Street. Once a person goes over the pedestrian overpass in a southerly direction, it is approximately 1 km to the north end of the James Street swing bridge where the fight took place, displayed in the TBT Park camera videos.

68Exhibit 13 shows Mr. Moffatt’s companion to be wearing a red hat. Unlike Mr. Moffatt’s LA Kings hat which is black and white, the companion’s hat is all red. The Crown called this companion the “Red Hat Man”. I will use that descriptor as well. The Red Hat Man appears to be wearing black pants, a black, short sleeve t-shirt, and some kind of dark coloured coat wrapped around his waist. He is also wearing running shoes that have a very distinct white sole. Mr. Moffatt’s shoes have a white sole as well; however, from reviewing Exhibit 13, which was recorded in colour and taken in daylight, the white soles on the Red Hat Man’s shoes appear to be much brighter than the white soles on Mr. Moffatt’s shoes. Mr. Moffatt can also be seen in this video to be rolling a bike along with him, which has no reflectors on its wheels. He also has a dark coloured jacket tied around his waist.

69Mr. Moffatt and the Red Hat Man are next seen on the TBT video footage in Exhibits 14, 15, and 16. The pair enter the video frame from the left in Exhibit 14, time stamp 21:25:53, and are heading towards the James Street swing bridge. The Red Hat Man and Mr. Moffatt are now both wearing dark long sleeve shirts, and neither of them has anything tied around their waist.

70In Exhibit 16, Mr. Moffatt can be seen placing his bike under the big tree near the bridge, but then he picks it up again and deposits it at the edge of the bushes near the area where PC Gunn later finds Mr. Moffatt’s unconscious body. The two men then disappear under the bridge.

71Later during the police’s investigation, a search was done and photographs were taken of this area under the bridge where Mr. Moffatt and the Red Hat Man were seen entering. It appears to be a crude outdoor drug den. Drug paraphernalia was identified by Constable Brennen who searched the area in the daylight hours of June 29, 2021. A jacket was also found there. I find that this was Mr. Moffatt’s jacket. I so find this because it is found in relative proximity to him when he was located by PC Gunn.

72The Crown acknowledges that the video clips from the Park camera in Exhibits 19 to 30 show some activity around the bridge area, the light post, and the bush area where Mr. Moffatt’s unconscious body was eventually discovered. The Crown submitted that these exhibits were entered as they depict movement in those areas. However, the defence added Exhibits 71, 72, and 73 claiming that these video clips also show relevant and important movement in the same area, which the Crown omitted to include. I will go through the exhibits which I deem relevant, in chronological order.

73Exhibit 20, time stamp June 28, 2021, 22:50:15 (10:44 p.m.) shows two individuals emerge from under the bridge area. This is the last video that was recorded with some daylight, as the sun had almost set by this time.

74Exhibit 71, time stamp June 28, 2021, 23:24:18 (11:18 p.m.) again shows two figures around the bridge area, who are then seen moving towards the bush area where Mr. Moffatt’s unconscious body was later found.

75Exhibit 21, time stamp June 28, 2021, 23:37:39 (11:31 p.m.) in the area where Mr. Moffatt was later found, a beam of light appears in the video. This light appears to move up, down and around in that area until 23:38:50 (11:32 p.m.) at which time the light, along with a dark figure, moves toward the bridge area where we previously saw Mr. Moffatt and the Red Hat Man go down under the bridge. The beam of light looks like that which would come from a flashlight or a flashlight type app emitting from a cellphone. At the end of the video, there appears to be a dot, barely discernable, in the area where Mr. Moffatt was eventually found, but it is not nearly as clear as the two dots which subsequently appear.

76Exhibit 22, time stamp June 28, 23:42:50 (11:36 p.m.) the white dots, like in the Stabbing Video, are visible. This clip captures a figure in that same area with a light beam, as seen in Exhibit 21, which appears above the two dots on the ground. At 23:43:50 (11:37 p.m.) I can discern the faint outline of a person standing erect at that spot where Mr. Moffatt was found. There is movement, and I find that there were two people in that vicinity at that time. From this video I find that the MIB was standing up, looking around, shining a light of some sort, while Mr. Moffatt was there on the ground, unconscious.

77Exhibit 23, time stamp June 28, 23:44:47 (11:38 p.m.) the flashlight appears again at the same spot where Mr. Moffatt was found. A few seconds later, a passing car’s headlights illuminate the area, and a person can be seen standing there. The figure with the flashlight is then seen moving from that area towards the light pole, continuously holding the flashlight, at 23:45:12 (11:39 p.m.).

78In reviewing these clips, distinct bright dots and beams of white light can be seen at various places in the dark area just beyond the light emanating from the light post but are mostly seen illuminating the area where Mr. Moffatt was located. It appears to me to be evidence of the MIB paying some attention to an overdosing Mr. Moffatt. This provides further reasonable doubt as to the proposition that the Crown has proven that the MIB was Mr. Moffatt.

79In chronological order, Exhibits 24-28, then 72-73, then 30, cover the time period from June 28, 2021, 23:45:29 to 23:54:29 (11:39 – 11:48 p.m.). In these exhibits, the MIB can be seen leaving the area where Mr. Moffatt’s unconscious body was later found, as he meanders across the street and then returns, which is all captured on the Park camera videos.

80This brings us to Exhibit 31, a critical video, which the Crown and defence disagree on what I can take from it.

81In Exhibit 31, time stamp June 28, 2021, 23:54:32 (11:48 p.m.), the MIB appears to have a flashlight shining on the area where Mr. Moffatt was found. At 23:55:03 (11:49 p.m.), a person is then seen emerging from the area on a bicycle. Exhibit 31 and 32 show this individual on the bike to ride out of the Park camera frame at 23:55:50. I agree with the Crown that a male person was shown biking away from the scene. This video, however, also shows that the bike he is riding has no reflector on either wheel. I also note that the person is not peddling the bike in an urgent manner. He appears to be cruising. He is also wearing long sleeves.

82Next, there is a ten-minute gap in the footage between Exhibit 32, time stamp 23:55:50 (11:49 p.m.) and the beginning of the next Park camera video, Exhibit 33, at June 29, 2021, 00:04:55 (11:59 p.m.). The Crown submitted that the individual who rode off on the bike never returned to the scene, while the defence submitted that during this ten-minute gap, the individual on the bike returned to the scene, and was the individual who committed the murder and aggravated assault on Adrien and Kody.

83I find it reasonable to conclude that the person shown riding the bike in Exhibits 31 and 32, returned to the scene during the ten-minute gap in footage, and subsequently appeared as the MIB who fought the teenagers in the Stabbing Video.

84I say this first because, from my observations of all the videos, the individual on the bike and the MIB in the Stabbing Video appear to me to be the same person. Secondly, in Exhibit 33, time stamp commencing at, June 29, 2021, 00:04:47 (11:58 p.m.), a person emerges from under the bridge at 00:05:50 (11:59 p.m.) and then walks under the area illuminated by the light post where the fight takes place a few minutes later. He is wearing long sleeves. To my observation he moves in the same manner as the MIB in the Stabbing Video and could reasonably be identified as the same person in Exhibit 31. Lastly, throughout the duration of Exhibit 33, when I focus my attention on the area where I know Mr. Moffatt was later found, I observe one, and at times two, white dots on the ground, which, as I have already explained, I take to be light reflecting Caucasian skin tones. Mr. Moffatt appears to still be lying on the ground in that same spot, and he is therefore not the MIB walking around the scene of the crime.

The Circling Bicyclist

85There is other evidence in this trial that leaves me with a reasonable doubt about Mr. Moffatt’s alleged guilt. As noted, Adrien provided evidence about the fact that the MIB pursued them following the fight. This evidence is significant, and in my view, leads to another aspect of the Crown’s theory which was not made out by the totality of the evidence at this trial.

86There was a dispute between the parties about the identity of what the Crown called the “Circling Bicyclist” in the Stabbing Video, who appears after an unfortunate 40 second glitch in the footage. The Crown submitted that this individual was just a person who happened to ride on the scene at the time. I disagree. I disagree based on my review of the totality of the video evidence, and I also disagree because of the fact that Adrien was emphatic that the MIB pursued him and Kody after the fight and was confronted by him at the underpass. Ultimately, I accept the defence submission that the MIB is the person who is shown near the end of the Stabbing Video riding off in the same direction as Kody and Adrien. This evidence about the aftermath is important.

87After the fight ended, the teenagers are last seen in the Stabbing Video leaving on their bikes towards the James Street underpass at 00:15:42 (12:09 a.m.). The MIB is then seen walking to the left towards the area we know Mr. Moffatt was later found. However, as the MIB is crossing the paved part of Young Street right where the fight had taken place, the MIB is seen demonstrating what appears to be an interest in a spot on the pavement. At 00:16:12 (12:10 a.m.) for approximately 3 seconds, the MIB bends down to touch the pavement, before continuing to make his way past the light post and into the darkness in the direction of where Mr. Moffatt was found.

88We then have the unexplained 40 second gap in the Stabbing Video.

89After the glitch, the Circling Bicyclist is then shown on the Stabbing Video to emerge from the darkness on a bike at 00:17:02 (12:11 a.m.). This is immediately followed by another unexplained glitch of three seconds. At 00:17:05 the Circling Bicyclist commits the ‘circling’ move from which his name was derived. He is seen coming from the direction of the darkness, left to right in the camera frame, circling in a counterclockwise direction around the exact same area of pavement that the MIB was examining about a minute before. The Circling Bicyclist, like the MIB, bends down from the bike and appears to examine the exact same spot on the pavement.

90I find that the interest shown on the spot on the pavement at 00:16:12 by the MIB, and the exact same interest shown on the same spot on the pavement by the Circling Bicyclist, plus the proximity in time between these actions, and because of the same appearance of the persons, leads me to conclude that the Circling Bicyclist is the MIB.

91The MIB is then seen in the Stabbing Video biking away from the scene at 00:17:25 (12:11 a.m.) in the direction towards where Kody and Adrien had gone. This is consistent with Adrien’s evidence that he and Kody were followed by their assailant. Also, quickly leaving the crime scene strikes me as a more logical action from a person who just stabbed two people for no apparent reason, than the alternative, which would have been the actions of walking back into the darkness, taking off a long-sleeved coat, putting it under a bridge about 40 feet away, disposing of a murder weapon and then overdosing on fentanyl in plain sight of the same area where he had just stabbed two teenage strangers.

92In my view, the Stabbing Video shows the MIB riding off in the direction of the James Street underpass at a fast pace at 00:17:25 (12:11 a.m.).

The Bannon Bicyclist

93At this point I must deal with what I understood to be the Crown submission regarding a second bicyclist which I call the Bannon Bicyclist. As I will explain, Exhibits 36, 37, 66, and 5, are all video clips taken from Bannon’s Gas Bar (“Bannon’s”) on the Fort William First Nation side of the James Street swing bridge. These videos captured footage of another biker, who is then seen riding his bike in the direction of the James Street bridge, just before Leo and Tammy Bannon also go in that direction in their van. Hence, the reason I call this person the Bannon Bicyclist. I do not accept the Crown’s theory that the bicyclist who appeared just before Leo and Tammy Bannon’s vehicle, in Exhibit 6 of the Park camera video, could have also been the Circling Bicyclist.

94Although there is no direct evidence to corroborate the accuracy of the time stamps on the Bannon’s videos, based on the moving vehicles that are captured on the TBT Park camera videos (north side of the bridge) and which are then captured on the Bannon’s videos (south side of the bridge), I am able to get a good and reliable idea of the area where this Bannon Bicyclist was located during the fight. He was on the south side of the Kaministiquia River. Ultimately, I am of the view that this Bannon Bicyclist was a person who just coincidentally passed through the area. I find the Bannon Bicyclist is not the MIB. I say this for the following reasons.

95The video exhibits from Bannon’s came from two surveillance cameras that cover different angles of the gas station. What I will call “BC 1” short form for “Bannon camera 1”, was located on the west side of the building and captures a clear view of the James Street South and City Road intersection. Every vehicle that traverses the bridge going in either direction over the bridge must pass through this intersection. Similarly, any vehicle traversing the bridge from the Fort William side is also captured on the Park camera videos on the north side of the bridge. “BC 2”, short form for “Bannon camera 2”, was on the east side of Bannon’s, and also captures the James Street and City Road intersection, but has a less clear view of the vehicles heading north bound on the bridge than BC 1.

96Now, in the Stabbing Video, the teenagers are seen biking out of the frame at 00:15:42. Fifteen seconds later at 00:15:57, the Park camera captures a white van with a black stripe heading south onto the James Street bridge. At the same time, we can see the MIB walking to the left, and then he bends down to touch the pavement at 00:16:11.

97On the south side of the bridge, Exhibits 36, 37, and 66, capture a person on the Bannon’s Gas Bar property. This person is standing on the corner of the building under BC 1, and is then seen getting on a bike, cruising across the property, and then heading in the eastern direction from BC 2 as well. This individual was wearing a black hat, black shoes, a sweatshirt, and jeans. The bike he is riding is white, and it has reflectors on both wheels. This person who I am calling the Bannon’s Bicyclist leaves the camera’s frame, and then one minute and 18 seconds later, the white van with a black stripe that was seen in the Park camera video, is seen pulling up to the James Street and City Road intersection on the south side of the river. This Bannon’s Bicyclist therefore cannot be the MIB, since at the time of the stabbing, the Bannon’s Bicyclist was on the south side of the Kaministiquia River.

98Four minutes and 32 seconds after the Bannon’s Bicyclist went east from the gas station, that same biker is seen from BC 1, Exhibit 5, heading north towards the James Street bridge. 49 seconds later, we see Leo and Tammy Bannon’s vehicle at the James Street and City Road intersection. Leo and Tammy Bannon identified this vehicle as the one they were driving. In my view, this person could not have crossed back and forth across the bridge on a bike in that short a time span.

99Exhibit 6 is the Park camera video that shows the Bannon’s driving north bound past the crime scene early on June 29, 2021. At 00:21:44 (12:16 a.m.), the video shows the headlights from the Bannon’s vehicle at the southern end of the James Street bridge, as it travels north. At 00:21:47 (12:16 a.m.), a cyclist is captured coming off the James Street bridge heading north in the direction of the James Street underpass. 17 seconds later, the Bannon’s vehicle comes off of the James Street bridge onto the north side. The Bannon’s testified that a minute later, they reached the teenagers at the James Street underpass.

100What is critical about this piece of evidence is that the biker who appears just ahead of Leo and Tammy Bannon had reflectors on the front and back tires of their bike. This is important for a few reasons. First, because the person riding what the Crown calls the Circling Bicyclist in the Stabbing Video has no such reflector on either tire. Second, the bike that Mr. Moffatt is seen walking with and riding in various videos also has no such reflectors and is a blue colour. Both of these facts can be observed in Exhibits 11 and 13.

101Going back to the Stabbing Video, there is a five-minute gap from the time when we see the MIB exit the scene northbound on a bike, 00:17:25 (12:11 a.m.), and when we see this other bicyclist come off the James Street bridge heading north towards the underpass. The Crown alleges that the MIB is maybe the same person who five minutes later comes north off the James Street bridge, just before Tammy and Leo Bannon. This theory, however, does not hold based on my review of the evidence. The Stabbing Video shows no persons riding bikes southbound over the James Street bridge towards Bannon’s Gas Bar between the time the MIB bikes away at 00:17:25 (12:11 a.m.) to when that video ends at 00:21:45. Exhibit 6 from the Park camera starts four seconds later at 00:21:44, where we see the headlights from the Bannon’s vehicle at the south end of the James Street bridge. During this period, no persons riding bikes can be seen heading south on the James Street bridge.

102In my view this rules out any possibility that the Circling Bicyclist is anyone other than the MIB. This also means the Circling Bicyclist is not the Bannon Bicyclist. Accordingly, I find the Bannon Bicyclist, shown on Exhibits 66, 36 and 37 on the south side of the bridge, and again in Exhibit 6 on the north side of the bridge, had nothing to do with the murder and aggravated assault that evening.

103Furthermore, no bicycles of any kind were found by the police in the area where Mr. Moffatt was located even after a daylight search on June 29, 2021.

The Winmar Video Exhibits 76 and 77

104There is one final aspect of the video evidence that contributes to the totality of the evidence before me that leaves me with a reasonable doubt that the Crown has proven that Mr. Moffatt committed the crimes of which he is accused.

105This evidence is shown in the video Exhibits 76 and 77, taken from the Winmar property referred to earlier. The time stamps on these videos are June 29, 2021 00:15:50 (Exhibit 76) and 00:15:56 (Exhibit 77).

106Exhibit 76 is 24 seconds in length, and shows a person on a bicycle for about 7 seconds. The video shows this person to be wearing a red hat, a shirt with long sleeves, and shoes with white soles. He is riding very quickly north bound coming from the pedestrian overpass. The bike appears to be blue and has no reflectors on its tires. From my observation of Mr. Moffatt’s bicycle in Exhibit 13 from that same camera earlier in the day, I find this person in Exhibit 76 is riding Mr. Moffatt’s bike. It is the same bike that was seen cruising around in Exhibit 31 and 32 immediately before the 10-minute gap in footage, prior to the fight.

107Exhibit 77 is 17 seconds in length. The person shown in Exhibit 77 is seen for about 4 seconds. The same observations about clothing can be made from this video.

108The person appears from the two videos to be Red Hat Man.

109The 911 call was made at 00:17:48. The Stabbing Video shows the MIB leaving the scene at 00:12:11. Adrien testified that the assailant followed the teenagers to the James Street underpass. Adrien said that this person rode up to them on a bike and said “they were sorry”, but Adrien told him to get lost, or words to that effect. I expect this interaction took place somewhere between 00:13:00 and 00:15:00.

110Taking the time stamps on Exhibit 76 and 77 at face value, they capture footage within approximately two minutes of the 911 call, and approximately four minutes of the time the MIB left the scene. This evidence, coupled with Adrien’s evidence about the interaction at the underpass, indicates to me that the time stamps on the Winmar videos are very close to the “real time”.

111The Red Hat Man was seen with Mr. Moffatt earlier in the evening. For the reasons above, I conclude that he continued to be with Mr. Moffatt, or in proximity to him, from about 11:45 p.m. on June 28, to about 12:11 a.m. on June 29, during which time Mr. Moffatt was unconscious and lying on the ground.

112The fact that the Red Hat Man is seen wearing a long sleeve shirt and white soled shoes is consistent with the clothing observed being worn by the MIB. The Red Hat Man is shown heading away from the scene of the crime in a rapid manner in close proximity to the time right after the MIB is also shown riding a bike in that same general direction.

113In my view this evidence also raises a reasonable doubt that the Crown has proven that Mr. Moffatt committed the offences for which he is charged.

Conclusion

114I have considered all the evidence in this trial without sympathy, prejudice or fear.

115I offer my sincere condolences to Kody’s family for what has happened. They have had to relive it through this court process. There is no question they have suffered a horrific loss. Words cannot adequately describe it. I offer my sincere condolences to the Deschenes family as well. I am deeply concerned about what happened to Adrien that night, and what impact those events will have on his future. His personal courage was evident in the manner with which he conducted himself before this court.

116I am duty bound to consider all the evidence presented at trial. I am duty bound to apply the law. For the reasons I have set out above, I find that during this trial, for the two counts on the indictment for Mr. Moffatt, the Crown has not proven its case beyond a reasonable doubt.

117Please stand up, Mr. Moffatt.

118On count 1, that DUSTIN DENIS MOFFATT on or about the 29th day of June in the year 2021 at the City of THUNDER BAY in the said Region did commit second degree murder on the person of K.F. contrary to section 235(1) of the Criminal Code, I find you Dustin Denis Moffatt NOT GUILTY.

119On count 2, that DUSTIN DENIS MOFFATT on or about the 29th day of June in the year 2021 at the City of THUNDER BAY in the said Region, did wound A.D., thereby committing an aggravated assault, contrary to section 268 of the Criminal Code, I find you Dustin Denis Moffatt NOT GUILTY.

120Counsel may I please now have your submissions regarding count 3 on the indictment now before the court.

121Following the submissions, count 3 is withdrawn at the request of the Crown.