Supreme Court of Nova Scotia
Citation: R. v. Smith, 2014 NSSC 351
Date: 20140127
Docket: CRH. 324554
Registry: Halifax
Between:
Her Majesty the Queen
v.
Demarco Smith
Verdict
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Judge: |
The Honourable Justice Patrick J. Duncan |
|
Heard: |
October 28, 29, 30, November 4, 5, 6, 7, 12, 13, 14, 20, 25, 2013 and January 27, 2014, in Halifax, Nova Scotia |
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Written Decision: |
September 24, 2014 |
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Counsel: |
Roland Levesque and Alex Keaveny, for the Crown J. Patrick L. Atherton, for the Defendant |
By the Court:
Introduction
Casey Downey died on February 7, 2010 as a result of receiving a single stab wound to his chest which wound penetrated into the atrial vein leading to his heart. He died within seconds of receiving the fatal blow. The Crown alleges that the accused, Demarco Smith, unlawfully caused Mr. Downey’s death.
In consequence thereof Demarco Smith stands charged that:
He on or about the 7th day of February, 2010, at, or near North Preston, in the County of Halifax, in the Province of Nova Scotia, did unlawfully cause the death of Casey Marleen Courtnell Downey, and did thereby commit second degree murder, contrary to section 235 of the Criminal Code.
The Trial
Mr. Smith elected trial by judge alone with Crown consent. The prosecution presented the evidence of twenty-two witnesses. The witnesses included a number of persons who were present at the time and in the place where the stabbing occurred. Police witnesses testified to investigative steps undertaken by them that lead to the arrest and charging of Mr. Smith. Expert opinion evidence in relation to a variety of forensic examinations and tests completed the Crown’s presentation. Demarco Smith elected to testify in his defence.
Fundamental Legal Principles
Presumption of Innocence and Burden of Proof
Mr. Smith has pleaded not guilty. The first and most important principle of law applicable to every criminal case is the presumption of innocence. Mr. Smith enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown, on the evidence proves beyond a reasonable doubt that he is guilty.
The burden of proof rests with the Crown and never shifts. There is no burden on Demarco Smith to prove that he is innocent.
A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in these proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.
It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard would be impossibly high. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. It is not enough to conclude that Mr. Smith is probably guilty or likely guilty, that is not sufficient. In those circumstances, I must give the benefit of doubt to Mr. Smith.
I must decide, looking at the evidence as a whole, whether the Crown has proved Mr. Smith’s guilt beyond a reasonable doubt.
Assessment of Evidence
It falls to me to decide how much or little of the testimony I accept. I may believe some, none or all of it.
In this case there is “direct evidence” and “circumstantial evidence”. I may choose to believe or rely upon either one as much or as little as the other in deciding this case.
No witness has testified to seeing Mr. Smith stab Casey Downey. Mr. Smith does not explicitly admit that he caused the stab wound to Mr. Downey. Notwithstanding that, he advanced defences that are predicated on his having committed the act that caused the injury and ultimately the death. Because of his failure to explicitly admit that he stabbed Mr. Downey, I must consider the evidence that Demarco Smith stabbed Mr. Downey. As that evidence is circumstantial, Mr. Smith should only be found guilty where I am satisfied that the guilt of the accused is the only rational conclusion to be drawn from the whole of the evidence.
Admissions (Criminal Code s. 655)
In accordance with the provisions of section 655 of the Criminal Code, the accused has admitted the following facts for the purpose of dispensing with the proof thereof:
1. That Casey Downey died on February 7, 2010 in North Preston, Halifax County, Nova Scotia; and
2. That the identity of the accused present in court is Demarco Smith the named accused in the Indictment.
Testimony of Accused
Mr. Smith has testified. When a person charged with an offence testifies, his evidence must be assessed in the same way that the testimony of any other witness would be assessed. I may accept all, part, or none of Mr. Smith’s evidence.
If I believe the testimony of Mr. Smith that he did not commit the offence charged, then I must find him not guilty.
However, even if I do not believe the testimony of Mr. Smith, if it leaves me with a reasonable doubt about his guilt then I must find him not guilty of the offence.
Even if the testimony of Mr. Smith does not raise a reasonable doubt about his guilt, if after considering all the evidence, I am not satisfied beyond a reasonable doubt of his guilt, then I must acquit.
Previous convictions of the accused
There has been evidence that Mr. Smith has previously been convicted of a criminal offence. I will not use the fact that Mr. Smith has committed a crime in the past as evidence that he has committed the crime with which he is currently charged.
I may only consider the prior conviction as a factor in deciding how much weight to give to Mr. Smith’s testimony.
A previous conviction does not necessarily make the evidence of Mr. Smith unbelievable or unreliable. It is only one of the many factors to consider in assessing his testimony.
I will not use evidence of a previous conviction to find that Mr. Smith is a person of bad character and therefore likely to have committed the offence charged.
Post offence Conduct of the Accused
There has been evidence that Mr. Smith left the scene of Mr. Downey’s stabbing very quickly after the incident. This after-the-fact conduct is simply a type of circumstantial evidence. As with all circumstantial evidence, I must consider what inference, if any, is proper to draw from this evidence. I cannot infer Mr. Smith’s guilt from this evidence unless, when considered along with all the other evidence, I am satisfied that it is consistent with his guilt and is inconsistent with any other reasonable conclusion.
Expert Opinion Evidence
Various expert witnesses gave opinion evidence in this trial. As with other witnesses, I may give the expert’s testimony as much or as little weight as I think it deserves. Just because an expert has given an opinion does not require me to accept it. The experts were asked to assume certain facts. I must be satisfied that those facts have been proved in this trial.
Trial Evidence
I will turn now to my review of the evidence in the trial.
During the evening of February 6 and into the early morning hours of February 7, 2010, a birthday party for Rolisha Fraser was underway at the home of Waniek Fraser. The house is located at 1166 Downey Road, North Preston, Halifax County, Nova Scotia. A call was received by the RCMP at approximately 6:30 a.m. on the morning of the 7th reporting a stabbing at that residence. The RCMP responded to the call and upon determining that Casey Downey had been killed they conducted an investigation leading to the arrest of Mr. Smith.
Police Testimony/EHS Responders
In 2010 Constable Samuel Dupont was a general duty RCMP officer at the Cole Harbor Detachment.
At 6:30 a.m. on February 7, 2010, he received a call of a “stabbing” and together with several other officers responded to the scene at 1166 Downey Road.
He was the first officer to enter into the residence. Upon entering he observed Casey Downey lying on the floor and formed the opinion that he was deceased. He then secured the occupants of the house in the kitchen.
Constable Dupont went into the basement area and located three females who he directed to the kitchen.
The occupants were described as emotional, crying, stressed and “a little intoxicated”.
Ashley Fraser stood out as the most agitated and difficult to calm down of the occupants.
After the premises were deemed to be secure the Emergency Health Services personnel were permitted to enter to attend to Mr. Downey.
Constable Dupont locked the basement door to the outside and then attended in the kitchen to talk to the persons assembled.
An investigative decision was made to move the occupants of the house to the basement where they were taken outside one at a time to be interviewed. At 7:21 a.m. Cst. Dupont exited with Ashley Fraser. They went to Cst. Dupont’s police car where an audio statement was recorded. During this time the officer could smell alcohol coming from Mr. Fraser. He also observed what he characterized as a “minor cut” on Mr. Fraser’s right hand and what he believed to be “fresh blood.” He described Mr. Fraser as “rocking back and forth”.
Further interviews were conducted and shortly afterwards the officer attended to seize a jacket and jeans that Ashley Fraser had been wearing. Mr. Fraser was cooperative and complied with the request. The items were secured at the detachment.
Constable Dupont left the scene at 8:21 a.m. and had no further involvement with the investigation.
A number of other officers attended at the scene and were involved in the investigation. The evidence of Inspector (retired) Neil Fraser, retired Staff Sgt. Fred Thompson, Sgt. Sean Martin, Detective Constable Sarah Drummond, Constable Leslie Goode, Cst. Benny Kirton and Detective Constable James Luther was received in evidence.
Sgt. Terry Miller was the senior NCO and gave instructions to police officers at the scene upon attendance in response to the 911 call. He discovered the knife, marked as exhibit 6, in Rolisha Fraser's purse shortly after taking control of the scene. It subsequently was seized by identification team members.
EHS responders Shaun Welsh and Nicholas Richards were on duty as paramedics on February 7, 2010 when they were dispatched to attend at 1166 Downey Road in response to an RCMP report of a gunshot or stabbing at that location.
They arrived on scene at approximately 6:45 a.m. and after a brief wait while the police ensured it was safe for them to enter the house, they approached and entered through the front door where they immediately observed Mr. Downey’s body in the same location as shown in police photos taken later on that day and entered as exhibit 3 at the trial.
Both EHS responders commented upon the unexplained presence of water that appeared to have been splashed over the body. Mr. Welsh cut the deceased’s shirts up the middle to expose his chest area. Together with Mr. Richards, they conducted a variety of tests and concluded that Casey Downey was deceased, apparently of a single puncture wound measuring approximately 1.5”, located in the upper left chest, above the nipple line. That wound was also identified by them in photos found in exhibit 3.
A “head to toe” examination of the deceased did not disclose other signs of trauma, swelling or bruising.
Corporal Sean Carson is a qualified Forensics Identification Specialist with the RCMP.
On Sunday, February 7, 2010, Cpl. Carson was assigned by S/S Fred Thompson to attend at the residence at 1166 Downey Road in relation to a reported suspicious death. He did attend there on that date and again on February 8 and 9 to continue his forensic investigation.
The officer arrived at the scene at approximately 2:00 p.m. of the first date. An initial survey of the exterior of the property did not reveal any perishable evidence. A further survey was made of the interior following which he began to conduct his forensic examination tasks.
A video and photographs taken by the officer on February 7 depict the exterior of the house as well as the interior main floor and basement area of the house. These were tendered in evidence.
He testified that the body of Casey Downey was found in the hallway of the house, just inside the door, with his head close to the front door and his feet in the direction of the dining room. He was on his back. His hoodie and 2 shirts were cut up the centre and lying underneath him. They were soaked in blood. There was evidence to suggest the attendance of EHS paramedics at the scene although they were not present when the forensic examination began.
Mr. Downey was observed to have an apparent stab wound in the upper left chest area. He noted that the wound did not extend through the back.
The body was examined by the Medical Examiner and removed from the scene at approximately 7:06 p.m. on the 7th.
The officer, this is still Corporal Carson I am speaking of, returned to the residence on the following morning, the 8th, and took 11 swabs of what he believed to be blood from a trail that seemed to begin as a small droplet at the base of stairs leading from the basement to the main floor and ending at the body of the deceased. As he was called away to attend the autopsy of the deceased the process of taking swabs was interrupted and continued the following day. In total 33 swabs were taken from the basement stairway, the kitchen, the dining room, the hallway and the bathroom on the main floor. The only other blood in the basement was swabbed from a door leading outdoors from the basement. It was located in an area near the deadbolt and on the inside of the door.
The officer testified that during his visits to the house he searched and then seized a number of items which were ultimately given over to Neil Fraser who was the exhibit custodian.
Cpl. Carson made general observations of the basement that were consistent with a party having taken place there: Dixie cups, empty liquor bottles, seating areas, and equipment for playing recorded music. He agreed with the defence counsel that the house was “clean”.
On the main floor of the house he located and seized a knife and a purse that were located on the dining room table. Both were tested for blood. No blood was identified on the outside or the inside of the purse. The knife had no identifiable fingerprints and it was submitted to lab techs for testing to determine the existence of blood and DNA.
Various items of clothing were seized including the hoodie and the two shirts that were cut free from Mr. Downey and found with his body. An examination of that clothing revealed a hole in each that was in the upper left chest area. Because the clothing had dried and was crusty, measurements of the holes were inexact.
He also received a consent DNA sample from Ashley Fraser which was sent to a lab for analysis.
Cpl. Carson testified to his attendance at the autopsy performed on Mr. Downey’s body by Dr. Marnie Wood. He took photos as directed by the doctor and afterward he took steps to confirm the identity of the deceased as Casey Downey.
Cpl. Carson took measurements and forwarded them to another specialist for preparation of a large scale drawing of the main floor and the basement of the house.
Demarco Smith
Demarco Smith testified on his own behalf.
In direct examination he said that he was picked up at his girlfriend’s apartment in Dartmouth by his cousin Jermaine Simmonds, who was also known as “Dee”, and by someone named Cornell, whose last name is unknown to Mr. Smith. Dee invited Mr. Smith to go with them to a birthday party for Dee’s girlfriend, Rolisha Fraser, who is also known by the nickname Renee. They arrived at the house in North Preston between midnight and 1 a.m.
Mr. Smith says that while walking from Dee’s car to the house, he saw something “shiny” and “black” lying on the ground. He picked it up. While it looked like a knife to him, he put it in his back pocket without inspecting it or confirming what it was.
As the three men approached the house Dee spoke to a fourth man who, when asked, stated that he was there by himself. Dee invited him to enter the party with Dee and his companions. In cross-examination, Mr. Smith identified that fourth person as Casey Downey.
They entered into the basement of the house by a side door. Once inside Dee paid what amounted to a cover charge for the four men, to a female sitting by the door. Neville Provo, also known as “Puddy”, was playing recorded music. Renee or Rolisha Fraser brought a bottle of cognac to Dee, Cornell and to Demarco Smith. Each had a drink. Mr. Smith later testified that he had one or two drinks.
Around 2:30 a.m. to 3:00 a.m., Mr. Provo experienced problems with his music equipment and left to retrieve new equipment. He returned and the party resumed, however, according to Mr. Smith’s testimony in cross-examination, people started to leave so that when Mr. Provo returned there were 10 to 14 people remaining. At around 5:30 a.m. it was agreed that it was time to pack up. Mr. Smith says that he offered to assist Mr. Provo with moving his equipment but that the offer was refused. The accused then says he sat down next to Mr. Downey. Mr. Smith closed his eyes. Mr. Smith says that until that time he had little or no contact with Mr. Downey who instead appeared to have spent his time with Dee and Cornell.
Mr. Smith says that Mr. Downey tapped him on the shoulder and in an angry tone said “Wake the fuck up and help Puddy clean”. Mr. Smith told Mr. Downey that he had already offered but his help was refused. This same thing occurred two more times after which Mr. Smith says that he “got up” and asked Mr. Provo to speak to Mr. Downey. Mr. Provo approached Mr. Downey and asked him “Why are you going on like this, do you know who he is? You guys just relax”. Mr. Downey is alleged to have replied: “fuck this nigger; this nigger should be helping you clean up.” Mr. Provo told Mr. Downey that he didn’t need help, and if he did he would ask.
Mr. Smith describes what happened next:
So when Puddy was talking to him and saying all this to him I was slowly getting up out of my chair to walk away and then he swings at me and I move back and when I move back Puddy grabs him by his wrists and then starts putting him to the corner and I stand behind Puddy.
…
Puddy had him by his two wrists up by the speaker and the blue chair on the angle and I was standing behind Puddy and Casey was looking at me and Puddy. I heard ‘I'm gonna dome you’; and what doming means from the shoulders to the top of your head, that's your dome and it means I'm gonna kill you; and I took that and I just like got nervous at what he was saying and two seconds later I get a tap on my shoulder and I look over and there's my cousin Dee and he was like what's going on, what's the problem. I'm like this guy just threatened me and said he was gonna dome me. And when I just told Dee what he said the kid yells out again I’m gonna dome you and your cousin”. And then this is when I pull out the knife in my back pocket and then Dee took the knife from out my...out my hand and then some women said to me ‘you look like you're scared so go around the corner’; and then I went around the corner and when I was standing around the corner there was Ashley around the corner, who I met in the party and when I was sitting there talking to him I pulled out a second knife and I put it down by my side...
In response to a question from his counsel, Mr. Smith continued in reference to this second knife:
I don't know what kind of knife it was. I pulled it out and I had to use two hands to open it and I um put it on the right hand side of my leg and Ashley was saying there is no need for you guys to be going on whatever you guys are arguing about; and I said to him I never came to here for this I just want to enjoy myself and then go home. And after I said that I looked to the right and there was a somebody coming at me so I put my hands up and then I fell back into Ashley; and then the guy ran up the steps and then there was a girl running up the steps and then I went behind her and then when I got to the top of the steps there was a body lying on the ground and a girl crying and then I looked at the body for a good second and then I walked out the front door. I seen Cornell outside and I said to him I have to go home. He was like why what's wrong. I was like I have to go now I can't stay here I have to leave and then he got into the car and drove me home. And then when I got home I got rid of the knife.
Understandably this sequence of events was the subject of further examination. Mr. Smith denied making any comments to Mr. Downey when the latter threatened to “dome him.” He said that Dee was “mad” when Mr. Downey threatened to dome both Dee and Mr. Smith. He confirmed that Dee took the first knife away from him and that some girls held onto Dee at one point.
As to the moment of contact between him and Mr. Downey he says and I am going to quote his examination by his own counsel Mr. Atherton:
Mr. Atherton: Ok, he is coming at you; you said you put your hands up what exactly happens?
Demarco Smith: When I put my hands up um he ran directly at me and I fell back into Ashley.
Mr. Atherton: Ok, what did you think happened at that point in time?
Demarco Smith: I don't know. I just know that I fell back and he ran up the steps, he didn't fall at all, I fell.
Mr. Atherton: If you're using me as the person coming at you and stand up how did you put your hands up? So he's coming at you, where was his hands?
Demarco Smith: I don't know where his hands at but I believe he was like coming and I just put my hands up, like to stop him and then I fell back.
A question and an answer followed in which Mr. Smith indicated he took the knife out of his back pocket and it was in his right hand.
Mr. Smith concluded his direct examination by stating that he did not agree to engage in a fight with Mr. Downey; that he had only one or 2 shots of cognac and some marijuana; and that on a scale of 1-10 his level of intoxication was 1 to 2. In cross-examination he said that the alcohol had no effect on him.
Also in cross-examination Mr. Smith said that he spent the day, leading up to the party, at his girlfriend’s apartment in the Highfield Park area of Dartmouth. Although he went out with her for a “couple of months” he could not recall her name. He didn’t know whose car Dee was driving when he came to pick up Mr. Smith that night and was only able to give a generic description of a black 4 door sedan capable of seating 5 people.
He testified that Dee had called him earlier in the day, at which time Mr. Smith gave him directions to the apartment, but when testifying Mr. Smith could not recall the address.
He says that when he was walking to the house, the knife stood out as it was black on the white snow. He says that he put it in the right rear pocket of his pants. He did not tell anyone that he picked up the knife and never asked people at the party whether anyone had lost the knife. When asked whether he intended to keep the knife, he testified: “No, I didn't want to keep it, I was just keeping it out of harm's way.”
Mr. Smith, when asked more questions about the incident with Mr. Downey, characterized Mr. Downey as demanding that Mr. Smith “wake up “and help Mr. Provo – he was not simply asking. The accused vigorously banged on the witness box to show the aggressiveness with which Mr. Downey tapped him on the shoulder on those three occasions at the outset of the dispute. Mr. Smith demonstrated the aggressive tone of voice he alleges that Mr. Downey used. Despite repeated suggestions by the Crown, Mr. Smith maintained that he never became angry or raised his voice in response to Mr. Downey’s behaviour toward him. He says he maintained a calm demeanour and in fact after he asked Puddy to talk to Mr. Downey, he went back and sat down next to Mr. Downey. He determined that Mr. Provo’s attempt to calm Mr. Downey was not working and that is why he got up from his chair and it was at that time that Mr. Downey took the swing at him.
Mr. Smith then moved to the other end of the room, from where Puddy was holding Mr. Downey by the wrists. It was at that time, that Mr. Downey is alleged to have threatened to “dome” Mr. Smith, which he took to mean a threat to kill Mr. him.
Mr. Smith testified that he was not afraid of Mr. Downey before or during the time that Mr. Provo grabbed him. To Mr. Smith there was nothing to fear even when Mr. Downey threatened to “dome him” because, as he testified:
At the same time he was saying that, Puddy had him up against the wall so he's only talking, like he always been doing, talking, that's all he’s been doing is talking.
The accused told the Crown that while he could have left at that point he didn’t feel he had any reason to do so.
His cross-examination testimony provided better detail of the ensuing events. He said that he told Dee about Mr. Downey’s threats while Mr. Downey was still held by Mr. Provo. When Mr. Downey yelled that he would “dome” the accused and his cousin, Dee, Mr. Downey was still under Mr. Provo’s control. Notwithstanding this fact, Mr. Smith felt that Mr. Downey was sounding angrier and so he took out the first knife. He denied opening it and said Dee took it away from him. He didn’t know what became of the knife. Mr. Smith did not reply directly to the question of why he took out the knife, saying simply that it had been taken from him.
The following question and answers from Mr. Smith were posed by the Crown:
Crown: Now I take it that from what you've said you weren't upset at what Casey was doing to you. The way he was tapping you on the shoulder and ordering you to do stuff, that didn't upset you right?
Demarco Smith: No 'cause it didn't have to go that far.
Crown: Right, and I put it to you that you didn't move from that chair. You stayed next to Casey and after you talked to Puddy you even went back and sat down next to Casey. I put it to you, you weren't really scared of this little boy.
Demarco Smith: Well Puddy's there I didn't think nothing was going to happen. That's why I went to go sit back down because I figured it's just a grown up talking to Casey then I wouldn't have to really go anywhere. But while he was talking to Casey it didn't seem like it was working so I was getting up to walk away and I got swung at.
……………………………..
Crown: And you got swung at.
Demarco Smith: Yeah.
Crown: But you weren't really scared that Casey was gonna beat you up right.
Demarco Smith: At that time I wasn't worried about nothing because he was only poking me on my shoulder about some speakers and I'm not going to get upset about some speakers.
Crown: Right, and you weren't worried that Casey, this guy, was going to put a beating on you correct?
Demarco Smith: I don't know if that was going to happen or not I just know he was poking on my shoulder about cleaning up some speakers.
Crown: No, you didn't know if he was going to try to put a beating on you; what I am suggesting to you is that you did not have any fear of this person, you weren't scared of him.
Demarco Smith: There was nothing to be scared of because he was only telling me to wake the fuck up to clean up mess. That's nothing to be scared of cleaning up mess.
Crown: Even when he swung at you, as you indicate, you still weren't fearful of Casey Downey right.
Demarco Smith: No, but I wasn't mad either.
Crown: So you weren't mad but you weren't fearful of him.
Demarco Smith: No.
The Crown then moved on to another part of the examination:
Crown: So when Casey said I'm gonna dome you and your cousin, it was sort of just a lucky guess on his part.
Demarco Smith: I don't know.
Crown: And that's when you took out the knife you found outside.
Demarco Smith: Yes.
Crown: You took it from your back pocket.
Demarco Smith: Yes.
Crown: You took it out.
Demarco Smith: Yep.
Crown: Did you open it.
Demarco Smith: No.
Crown: Why did you take it out.
Demarco Smith: Because he said he was going to dome me and my cousin and I just got a little agitated at that moment in time and I pulled it out.
Crown: So you got agitated. Were you getting ready to use it against Casey.
Demarco Smith: I don't know. It got tooken(sic) from me.
Mr. Smith testified that the girls present “swarmed” Dee at that point. He identified this “first knife” was the one tendered by the Crown as exhibit 6. In the Crown’s theory this is the weapon that caused Mr. Downey’s injury and death. Mr. Smith could not offer any information on how this knife ended up in Rolisha Fraser’s purse in the kitchen upstairs.
At that point he moved away from the immediate area of the commotion involving Dee and the first knife. He identified on photo 66 of exhibit 3 the location where he was talking to Ashley Fraser. It was at that point that he said he pulled the second knife out, this one from his left rear pocket. The accused says that he always carries a knife out of habit and that it was in his pocket earlier that day while he was at his girlfriend’s. When asked what he uses the knife for, he answered: “Nothing, just always had one.”
Mr. Smith described the second knife as all black and a little smaller than exhibit 6. He says it did not have a thumb knob blade release assist as exhibit 6 does. As a result it takes 2 hands to expose the blade. The following exchange speaks directly to Mr. Smith’s intentions at the time when Casey Downey (and I am using Mr. Smith’s words) “collided” with him:
Crown: And you kept it by your right leg.
Demarco Smith: Yes.
Crown: Why did you do that?
Demarco Smith: Because I didn't want no one to see that I had opened a knife.
Crown: And why did you pull your knife out of your pocket and open it?
Demarco Smith: Because I was nervous, I didn't know what was gonna happen.
Crown: So you thought that Casey who had been bugging you might be coming at you?
Demarco Smith: Yes.
Crown: And you were getting ready for it right?
Demarco Smith: No, I was talking to Ashley at the time and when I was talking to Ashley, Casey came around the corner and then I just put my hands up and I wasn't waiting for nothing. It just happened.
Crown: Yeah but you said that you were nervous about what could have been happening right?
Demarco Smith: Yes.
Crown: And that's why you took that knife out?
Demarco Smith: Yes.
Crown: And that's why you opened it?
Demarco Smith: Yes.
Crown: Because you figured that something might happen?
Demarco Smith: I didn't know what was going happen, I was just sitting there talking to Ashley.
Crown: So you didn't know exactly what Casey might do but you were concerned because according to you what he said meant that he was going to kill you?
Demarco Smith: Yes.
Crown: So you wanted to be prepared so you opened up your knife, right?
Demarco Smith: Yes.
Crown: And then you're saying he came around the corner, the same corner you came around, came down that hallway and came at you right?
Demarco Smith: Yes.
Crown: And then you raised up your hands?
Demarco Smith: Yes.
Crown: And then you ended up stabbing him in the chest.
Demarco Smith: I fell back and he ran, he ran into me and I fell back and then he ran up the steps.
Crown: He ran into you.
Demarco Smith: Yes.
Repeated questions from the Crown resulted in little variation from this general response. Mr. Smith says that he does not know that he stabbed Mr. Downey. He maintains that he “forgot” that he had the knife in his hand, because it all happened so quickly. The following exchange is representative of Mr. Smith’s version of events:
Crown: You knew when you were bringing your hands up that you had this knife in your right hand right?
Demarco Smith: I forgot that I even had it in my hand because I was in a conversation at the same time that Casey came around, around the corner. So it was a split second that I put my hands up and then I fell back.
Crown: Well are you telling the court now that at the time you put your hands up you had forgotten you had this open knife in your right hand, is that what you're saying?
Demarco Smith: Well there was a whole lot going on and I was talking to Ashley about calming down and relaxing, and that this shouldn't be going on?
Crown: Yes.
Demarco Smith: So my mind slipped that I even had anything in my hand because when the guy came around the corner it happened so fast I just put my hands up.
Crown: And I am suggesting to you that when he came around the corner, he came at you, that you knew you had that knife in your hand and you brought it up and you knew that you stabbed him in the chest, isn't that what happened?
Demarco Smith: No, I didn't know that I stabbed him in the chest, I didn't know any, I didn't recall anything like that. I just know that when he came around the corner I put my hands up and that I fell back into Ashley.
Crown: What made you fall back into Ashley?
Demarco Smith: The force of him coming towards me.
Crown: So the two of you collided, is that it?
Demarco Smith: No he collided with me, I was standing talking to Ashley and he came into me.
Crown: And he collided with you?
Demarco Smith: Yes. Yes.
Crown: And you had time to bring your hands up to his chest level?
Demarco Smith: To stop him from banging into me but it didn't, I fell back so I don't know.
Crown: And do you agree with me that it was the knife that was in your right hand that stabbed Casey in the chest?
Demarco Smith: I don't know, I just know that when I put my hands up I fell back and I didn't know that he was even stabbed until I got to the top floor and he was on the ground.
Mr. Smith concluded his cross-examination with his explanation of what happened at the point of the collision with Mr. Downey:
Crown: From what you know at that time why didn't you just walk up the stairs and leave the house?
Demarco Smith: By the time I got around the corner I talked to Ashley for a like split second and then Casey came around the corner, so I had no time to go anywhere.
Crown: So it happened very quickly after you got to where Ashley was?
Demarco Smith: Yes.
Crown: But you had enough time to take your knife out, open it and hold it by your right leg?
Demarco Smith: Yes.
Crown: And you're also saying that during that very short period of time before Casey got to you according to what you're telling the court you forgot you had the knife in your right hand?
Demarco Smith: Yes because I was in a conversation about the situation and of course for a split second I forgot that it was in my hand and I put my hands up to defend myself and I fell back.
Crown: And you put your hand up to defend yourself while it was holding an open knife right.
Demarco Smith: Yes.
As I will discuss later, the position of Mr. Smith’s hands in relation to Mr. Downey’s chest is an important aspect of the accused’s testimony. In cross-examination he again demonstrated that when Mr. Downey came toward him, the accused’s left hand was open with the fingers pointing up and the palm facing the right side of the deceased’s chest. Mr. Smith’s right hand was closed and holding the knife parallel to the front of Mr. Downey’s chest and to the left of Mr. Downey’s sternum. The back of the accused’s hand was facing up; the palm area and fingers closed around the knife handle were facing down to the floor. The pointed end of the blade was nearer the centre line of Mr. Downey’s chest.
The Crown challenged Mr. Smith as to his reasons for his quick exit from the scene. Although he avoided a direct answer, it was apparent that the accused left because he feared apprehension and in particular feared that friends of Casey Downey would come after him.
While I will deal with his credibility in more detail later, the latter part of the cross-examination demonstrated Mr. Smith’s evasiveness on the question of his knowledge of how Mr. Downey was stabbed. Although he will not say that he stabbed the deceased, or even that the knife he was holding entered into Mr. Downey’s body, he left the scene quickly. He obtained a drive back to his girlfriend’s apartment and immediately walked to a sewer where he could dispose of the knife. When asked what became of the knife, he testified that he “got rid of it so that no one would ever find it.” When asked where the sewer was located, he did not recall; he could not recall how far it was from the apartment, or whether the sewer was in the road, or on the sidewalk. The following exchange says that he knew very well what he had done, that it reflects, in my view, a consciousness of guilt:
Crown: Why did you want to get rid of it?
Demarco Smith: Because I didn't want nothing happening to me if something happened to that guy off of my situation.
Crown: You wanted to get rid of the murder weapon?
Demarco Smith: I didn't know if it was a murder weapon or not I just wanted to get rid of whatever was on me.
The Crown again tried to ascertain some details of where Mr. Smith was living at that time and with whom. While he had been living in that apartment with his girlfriend for a couple of months, he could only say that he called her “Baby” and was unable to describe the building, the apartment number, or which building it was.
Mr. Smith confirmed that at the time of the incident he was 24 years of age, 5’8” tall and around 180 to 183 lbs. When asked to compare his size with that of Casey Downey he stated that he could not, because he had never been standing in front of Mr. Downey when both were standing straight up. He did not know Mr. Downey before that night, and had not spent much time with him during the party until the altercation at the very end.
In addition to Mr. Smith’s testimony there is evidence before the court of statements that he made to the police after he was arrested for the murder of Mr. Downey.
The accused was arrested on February 9, 2010 and taken to the Halifax Regional Police Major Crime Unit offices. There he was interviewed intermittently, sometimes vigorously, over a period of 12 hours beginning at 12:05 p.m. Officers that conducted the interrogation were Sgt. Dwayne Kelly; D/Cst. Anthony Blencowe; Cst. Patricia Jodrie; followed by D/Cst. Craig Upshaw and Cst. Benny Kirton jointly; and finally S/Sgt Darrell Gaudet. For the most part, Mr. Smith exercised his right to remain silent. There were a few comments that are relevant.
Mr. Smith agreed with Sgt. Kelly that he felt bad for Casey Downey’s family. He agreed with Cst. Kirton that the party was good and the music was good. He told the officer that he did not consume alcohol and had not done so on the night of the party. In his testimony in court, Mr. Smith admitted that he did not tell Cst. Kirton the truth on this question. The accused nodded agreement to the suggestion that many people at the party were drinking. Mr. Smith described the party as a “family party” and that all of the people of North Preston are one family. He said he knew Neville Provo but not well; that there was a bartender at the party; and that the party was for Mr. Provo’s daughter whom he knew to say hello to on the street. When asked if he knew Casey Downey, he answered that he only knew what the police told him about Mr. Downey. He confirmed his weight at that time as around 180 – 190 lbs; and finally that it was still dark out when the party started to wind down.
Mr. Smith was placed in cells for the night and on the following morning returned to the interview room where Cst. Kirton began another interview commencing at about 8:23 a.m. Again, Mr. Smith exercised his right to remain silent through most of the interview which lasted until 10:37 a.m. However, near the end of the interview he did make comments which I find to be admissions against his interest. Beginning at 10:09:34 a.m. Constable Kirton asked the accused what he would say to Casey Downey's parents if they were present. Mr. Smith said the following:
Sorry;… That’s the only thing I can say… Capital “S”… Big time… Sorry. What can I say? …The only thing I can say to that family is sorry (70-71).
Constable Kirton invited Mr. Smith to prepare a written apology to be delivered to the Downey family. Mr. Smith refused saying: "I'd rather do it a different way instead of writing it on paper.….When it's time for me to have a chance to do it I do want to do it on paper."
Beginning at approximately 10:30 a.m. the following exchange took place between Cst. Kirton and Mr. Smith:
Q. .… Shit happened. A mistake happened. You’re sorry for it.
A. Yeah
Q. Right…Someone died as a result of it.
A. Mmm
Q. So now whose decision was that that you were going to deal with the family on your own terms? Was that yours or did you get that advice from your parents or someone else?
A. Me… Mine…
……………………………..
Q. So… Do you need any help with that? The apology thing, man? On how you're going to deal with it. You going to need any help with that on your own?
A. On what?
Q. On how you're going to deal with it, telling the family. That's all you?
A. Well… Oh, yeah, but how am I going to tell the family?…
…………………………………………………………………….
A. So you know I got some apologies to say. So whatever.
A. Whatever. It’s the same thing that would go down if I was in the position. But everyone ain’t the same. Some people might just say, "Whatever. F the family" and go about their business.
Q. There’s a lot of them out there that do that.
A. So you know? But in this case it's not like that.
Mr. Smith's last comment in the recorded statement is made while he is alone in the interview room. After Constable Kirton exited, Mr. Smith said to himself "Oh hell". By itself, it is ambiguous comment. However, given this last part of the interview dealing with the emotional damage done to his own family and to that of Casey Downey, it is consistent with an expression of remorse; or alternatively, it is a recognition that he had, despite his best efforts to remain silent, made statements that inculpated in him Mr. Downey's death. Either way it constituted an admission against interest. Having said that, it does not represent proof that he intended to kill Mr. Downey. That is a question yet to be addressed.
Constable Kirton returned to the room in order to accompany Mr. Smith to the booking area of the police station. While they were walking past a different interview room, Cst. Kirton decided to make a further attempt to get a statement from the accused. He directed the accused to step into that room and they had a short conversation lasting about 2 to 3 minutes. It was not recorded but Constable Kirton testified as to his recollection of the accused’s words and conduct:
Cst. Benny Kirton: We walked in, so we sat down, I pretty much said look I said, listen man it's like this I see you're bigger than him so he must have had something to come at you, right, so, what was it, was it self-defence? And he said, ‘yeah he came at me first’. Then I said why didn't you say that in the room…that I tried to give you that opportunity to speak to it in the room and he went on to say, he just shrugged his shoulders.
…
Cst. Benny Kirton: The only comments I got were the, the non-verbal shrugging of the shoulders and the fact that when he said he came at me first.
This concludes my review of the evidence of the accused's version of the events that give rise to the charge before the court.
Neville Provo
Neville Provo is a 49 year old resident of North Preston. He is often referred to as “Puddy”. He attended the party for his daughter Rolisha Fraser at Waniek Fraser’s house.
While there is evidence that he consumed alcohol, he provided one of the more coherent versions of what occurred around the time of the stabbing. Having said that, there are significant shortcomings in his narrative of the events.
Mr. Provo arrived at the party and set up his sound equipment. By his estimate it was around midnight when he left to get the new speakers since there had been problems with the ones he was using.
He described the party atmosphere as good. People were dancing, talking, laughing and generally enjoying themselves. This is a common observation of all the witnesses who were present. There was a steady flow of people coming and going and at the peak there were perhaps 40 or 50 people present.
By about 3 a.m. the party came to an end. People began to leave and he and others began to clean up. There were 8 to 10 people left. Mr. Provo says that as he was packing up his stereo equipment, the accused offered to assist but Mr. Provo felt he did not require the assistance. He took some cords and cables to his car and when he came back in he observed Casey Downey and Mr. Smith arguing over helping Mr. Provo take his equipment to the car. Mr. Provo says that he got between them. He told both of them that he didn’t need their help and to “Leave it alone”.
Mr. Provo was very familiar with Mr. Downey from having coached him in basketball. While Mr. Provo did not say so directly it was clear that he perceived Mr. Downey to be intoxicated, confrontational, and aggressive. He particularly directed comments to Mr. Downey to “stop arguing, to let it go.” Mr. Provo testified that Mr. Smith and Mr. Downey were “pretty mad at each other.” He described their voices as loud.
They didn’t stop so he focused on Casey Downey, telling him to “Chill Out”. At one point he grabbed Mr. Downey’s arms and held him to the wall to get him to stop. He says that he felt that by grabbing Mr. Downey, he would listen to him more. Mr. Downey did not resist Mr. Provo “too much” according to the Mr. Provo. Mr. Provo acknowledged in cross-examination that he felt Mr. Downey was “trying to prove a point”; and that he was trying to keep Mr. Downey from going after Mr. Smith. He describes both of Mr. Downey and Mr. Smith as yelling at each other but acknowledged that Mr. Smith made no attempt to move toward Mr. Downey nor was he physically aggressive.
The witness testified that Mr. Downey agreed to “chill” and so Mr. Provo released him. However, he also said that while he was holding Mr. Downey, “Dee” began yelling at Mr. Downey. This made Mr. Provo “sort of mad” and he said that is when he let Casey go – so that Mr. Provo could turn his attention to Dee.
Mr. Provo says that observed Dee in an area near the basement exit door and felt that he was escalating the argument with Mr. Smith and Mr. Downey. He testified that Dee was held back by at least three women, but quieted down when Mr. Provo confronted him. Wanda Beals was identified as one of the women holding Dee. He thought Kim Beals and Rolisha Fraser were the other two women.
Neville Provo’s assessment at the time he released Mr. Downey from his grip was that the worst thing that would happen is a fist fight. He made the telling comment that he let Mr. Downey go so that Casey wouldn’t be too tired if he did get in a fight. That is, he didn’t want to wear Mr. Downey out when holding him back. It is self-evident that he did not believe that Mr. Downey and Mr. Smith were going to let their dispute rest.
Mr. Provo did not see Mr. Downey with anything in his hands throughout this altercation. His opinion was that Mr. Downey was a little taller but perhaps 50 to 60 lbs lighter than Mr. Smith.
The witness said that he was preoccupied by dealing with Dee and so did not see what happened to Mr. Downey or to Mr. Smith. The next thing he was aware of there was several people running upstairs. He followed to the upstairs. Mr. Provo says that from the time that he let Casey Downey go, until the time that people began running upstairs was “fast…within probably minutes”.
When Mr. Provo arrived upstairs he observed Mr. Downey lying face down in the front hallway in the same location and orientation as shown in the police photos. The only difference is that in the photos Mr. Downey is on his back. Mr. Provo testified that he turned Mr. Downey over. Mr. Downey was moaning at first but he quickly died. There was some blood coming from the wound at first, but it was not spraying out. He says that “911” was called and that the police arrived about 15 minutes later.
He also confirms that Mr. Smith disappeared from the scene immediately and did not return.
There are a number of problems with Mr. Provo’s evidence that are in common with other witnesses. He offers no assistance in identifying how Mr. Downey was injured. Like most witnesses he suggests this occurred at around 3 a.m. but it must have been closer to 6 a.m. given the police record of when the call came in and how long it took to respond which was approximately 15 to 30 minutes from the dispatch time. Mr. Provo cannot offer a description of a knife or knives, nor how one ended up in the purse in the kitchen.
There are some key distinctions in his description of the events, from that of Mr. Smith. He places Mr. Downey and Mr. Smith in direct confrontation with each other when he returned from the car. It is apparent that he did not see how the dispute began, but Mr. Smith was much more confrontational than he admits. While he makes Mr. Downey out to be the aggressor, Mr. Smith was described as “pretty mad” at Casey Downey. He was, and I quote Mr. Provo, “getting worked up” and his voice was raised. Even when Mr. Provo was holding Mr. Downey, Mr. Smith was in the background yelling. There is a clear inference that Mr. Provo felt that the two were going to have a fight. Mr. Smith’s account that suggests he was calm and under control, and not bothered by Mr. Downey’s “talking” is in contrast to this description.
Ashley Fraser
Ashley Fraser is the 40 year old brother to Waniek Fraser. He was also at the party, arriving around 5 p.m. to assist in the setup. He testified that the party began around 7 or 8 p.m. and ended between 2:30 and 3 a.m.
He admitted that he had quite a lot of alcohol to drink and would place his intoxication level at 10/10. His evidence as a result must be weighed with some caution, but when taken together with the evidence of other witnesses, it suggests that his recollection was reasonably detailed, and of better reliability than his self-admitted intoxication would suggest. As a result I am not prepared to reject or diminish the weight to attach to his evidence solely on the basis of the evidence of his alcohol consumption.
There are other issues with Mr. Fraser’s evidence, including prior inconsistent statements which I will address.
Mr. Fraser gives a similar description of the party up to the point of the dispute breaking out between the accused and the deceased. He confirms that Casey Downey was telling the accused to help Mr. Provo move the speakers and that Mr. Smith was not going to do it. At the point that this argument was taking place he says that Mr. Smith was standing with him, shoulder to shoulder and at some distance from Mr. Downey. This is consistent with the position described by Mr. Provo and not consistent with the initial position described by Mr. Smith.
He describes Neville Provo as trying to calm down Mr. Downey while he was doing the same with Demarco Smith. Voices were loud, but he did not have to restrain Mr. Smith. He agreed with defence counsel's assertion that Mr. Downey was using a "threatening tone of speech". He estimates that he and Mr. Smith were in this position for approximately 3 to 5 minutes. He too says that Mr. Provo was restraining Casey Downey from going near the accused.
While he does not describe Mr. Downey being released from Mr. Provo's grasp, he does set out what took place after that occurred. He says that Mr. Downey "walked quickly, not running" toward Mr. Smith. The accused did not move toward Mr. Downey but neither did Mr. Smith make any attempt to leave the area.
In direct examination Ashley Fraser testified that there was no physical contact between Mr. Smith and Mr. Downey at that point in time. In cross-examination the witness adopted his evidence from preliminary inquiry that he was "pushed out of the way" and when he turned around he saw "Demarco and Casey collide". He said they collided and then they went upstairs. In redirect examination he could not say who pushed him out of the way, and that he had not recalled being pushed out of the way until his preliminary inquiry evidence was read to him.
His direct evidence on this point is that Mr. Downey came toward where he and Mr. Smith were standing. There was nothing in Mr. Downey's hands. He did not observe anything in Mr. Smith’s hands either. He said that when Mr. Downey got face to face with Mr. Smith it lasted for two seconds and then Mr. Downey backed up and ran upstairs. Ashley Fraser testified that the accused was not moved when Mr. Downey came over to where they were standing. This of course, is in direct contradiction to Mr. Smith's account.
Ashley Fraser also described people running upstairs in the events that followed. There is a significant omission in his testimony, which I view as deliberate. He suffered a cut to his finger; or at one point as was described a "slice" on his hand. He says that he did not recall having it when he went upstairs from the basement and first noticed it in the kitchen. It was not deep but it was wrapped. He testified that he could not recall any physical contact that would account for the cut. Forensic evidence obtained at the scene and subsequently tested for DNA comparison yielded the following results:
3. Swabs taken from the kitchen floor which was exhibit 46 and from the island in the kitchen, exhibit F50, were found to have matched that of Ashley Fraser.
4. A swab, exhibit F10, obtained from a stair leading from the basement to the main floor at the scene is of mixed origin consistent with having originated from two individuals with at least one being of the male gender. The profile of the major component matched that of Ashley Fraser. With a lower probability, the minor component matched the DNA sample of the deceased, Casey Downey.
I will add at this point that the DNA typing profiles obtained from the knife, exhibit 6, are also of mixed origin consistent with it having originated from at least three or more individuals and with one of at least one of them being a male. However, no further meaningful comparison could be made of those samples.
In my view, the only reasonable inference to draw is that Ashley Fraser cut his hand at some point during the altercation in the basement. His blood intermingled with that of Casey Downey creating the one sample of their co-mingled blood on the basement stair. It suggests that Mr. Fraser is omitting a significant part of his role during the events in the basement. It is important to note, however, that there is no evidence which places him in any conflict with Casey Downey nor that puts a knife in his hand, or otherwise supports the notion that he was the person who was holding the knife at the time that it entered into Mr. Downey's body.
What his evidence confirms, and which I accept, is that Mr. Downey after being released by Mr. Provo sought out the confrontation with Mr. Smith. It all happened very quickly including Mr. Smith and Mr. Fraser moving to the position where the collision, if you will, took place. Mr. Smith stood his ground and met Mr. Downey face-to-face. If I accept Ashley Fraser's version of events, then Mr. Smith is not telling the truth when he says that Mr. Downey caused him to fall back. However, Mr. Fraser does acknowledge that at one time he was pushed aside although he does not describe the mechanism that caused that. I will resolve my interpretation of these events after reviewing further evidence of the witnesses from the scene.
Kimberley Beals
Kimberly Beals was also in attendance at the party. She confirms that Mr. Smith and Mr. Casey got into a verbal argument while standing in an area where people had been dancing previously. This is generally consistent with what other witnesses have described as the location of the initial argument between Mr. Smith and Mr. Downey.
She did not see or hear how the argument began and while she says that she was unable to hear most of what they were saying she alleges that Mr. Smith made a comment to Mr. Downey that he was not going to let him hurt his “brother".
She testified that she was sitting at a table with Wanda Beals and was able to see the accused and Casey Downey. The lighting was poor, she was not wearing her glasses, and she was under the influence of alcohol. Kimberley Beals added that she was on medication during the giving of her evidence which impacted her recall.
The first argument she observed was between Dee and Casey Downey. There is some confusion as to when Mr. Smith and Mr. Downey began to argue but she described how Neville Provo stepped in, and as other witnesses have described, that he grabbed Mr. Downey and pinned him. She described how, in her opinion, Mr. Downey attempted to get away from Mr. Provo but was unable to do so. After promising that he would calm down, Mr. Provo released Mr. Downey but when he did not calm down Mr. Provo grabbed him a second time.
Kimberly Beals testified that she observed Mr. Smith take a knife from his right back pocket while he was standing in front of her and that Neville Provo and Dee took it away from him.
Mr. Smith went to the laundry room area of the basement which is where the bar had been set up. She says that all present except her and Wanda Beals followed into that area. She anticipated a fight would take place. She heard people yelling, and then people went upstairs. Wanda and she stayed in the basement where later Lashawnda and Katrina Fraser came down and reported that Casey was dead.
I note that at one point this witness retreated somewhat by saying that she couldn’t be 100% certain that it was a knife that Mr. Smith removed from his pocket. Following extensive direct and cross-examination in which she was referred to her earlier testimony given at the preliminary inquiry, and to a statement she gave to Cst. Sarah Drummond on February 9, 2010, she agreed that the knife marked as exhibit 6 was the one taken from Mr. Smith before he went to the laundry room, and was the knife she saw in the kitchen after Mr. Downey was stabbed.
Ms. Beals adopted her preliminary inquiry evidence in one other respect. She recalled that at one point she observed Mr. Downey with his hands up and made into fists, but that he was not holding anything.
The witness did not see what took place in the laundry room area. She says only that “everyone” but her and Wanda followed into that area.
Kimberley and Wanda Beals did not stay for the arrival of the police. They were interviewed later.
Overall, this witness confirms that there was an argument that Mr. Smith was an active participant in – that is, he was not docile and distant while Mr. Downey was confrontational. She confirms that Mr. Downey was aggressive and that a fight between the two was expected. Ms. Beals corroborates the evidence of Mr. Smith having the first knife he pulled taken away from him. Finally, the witness places the location of the final confrontation between the two men in approximately the same place as Mr. Smith described.
Wanda Beals testified as another witness who was at the party during the material time. In my view, this witness was less reliable and at times selective to the point of being evasive in her answers.
Her direct evidence was fairly lacking in detail. She arrived at 8 p.m. and sat at a table by the basement door where she took what she called “gifts” from people who attended. I note that the gifts included cash. She believes she had had 5 beer between 12 a.m. to 2 a.m.; and varied in her description of the effects upon her. It would seem likely that she was impaired. She described the “fussing”, as she called it, starting sometime between 1 and 2.
Wanda Beals says that Casey Downey was telling Dee to help take Mr. Provo’s equipment out, when the accused intervened saying “That’s my brother”.
She testified that she held Dee, while behind her the accused and Mr. Downey were “fussing”, arguing, and in her opinion getting ready to fight. She didn’t see any contact between Mr. Provo and Casey Downey. She didn’t see what happened to Mr. Smith or Mr. Casey until she leaped ahead to describe how Casey Downey ran upstairs, followed by Katrina or Lashawnda Fraser, and then the accused. She heard a scream and everyone ran upstairs where Casey was on floor. Efforts were made to resuscitate him but without success. Police were called and when she went up the stairs she observed blood on the stairs.
In cross-examination she did not agree with the suggestion that before the dispute the accused and victim were seated as Mr. Smith described in his testimony.
Eventually she concedes that Neville Provo pushed Casey back into a corner because as she said “they were both going after each other”. Then she agreed that it was Casey who was the aggressor, but denied that Casey chased after Demarco, when Demarco went around the corner. When she said this I took from her evidence that she was referring to the laundry room area.
Ms. Beals could not offer a logical timeline for events. While there are elements of her testimony that line up with that of others, there are some material differences, including that it was Dee and not the accused who was first arguing with Mr. Downey over giving help to Mr. Provo.
Katrina Fraser
Katrina Fraser is another witness who attended the party. Her evidence is not particularly helpful. She says that she had not been called upon to recall the events since February of 2010, which may explain the difficulty with her recall.
She testified that she was standing near a wall in the dance floor area when she heard a commotion, but was unable to make out voices. She knew that the argument was something about Mr. Provo’s speakers or the stereo. Mr. Provo, Mr. Smith and Mr. Downey were, in her words, “in the mix.”
The commotion, according to this witness, lasted about a half hour or 45 minutes which is much longer than any other witness would have suggested.
At one point during this commotion she saw a knife in the accused’s hands but only for a few minutes; it was black with a sharp edge blade. She did not see it again and doesn’t know what became of it. She said that this occurred about 10 minutes before she observed Mr. Downey run past her going in the direction of the laundry room.
At this point her evidence is unreliable. She says that she saw Mr. Downey run past her. After that she says that both (and the context suggests that she was referring to both Mr. Smtih and Mr. Downey) ran past her. It is not at all clear whether she intends that this was when they went to an area where Mr. Smith says the collision occurred, or whether this was when they were running upstairs. In answer to defence counsel she said she had not seen a collision between the accused and Mr. Downey.
She did not see anything in Mr. Downey’s hands during the commotion. She followed Casey Downey upstairs and saw him fall to ground. The accused was behind her. She saw Mr. Smith upstairs for perhaps a minute and then she didn’t see him again. She confirms that there was no contact that she saw between Mr. Downey and Mr. Smith on the way up the stairs, or once they were upstairs.
Lashawnda Fraser
Lashawnda Fraser arrived at the party at around 11 to 11:30 p.m. She too described the atmosphere as one where people were drinking alcohol, dancing, laughing and talking. At some point that she estimated to be around 3 a.m. to 4 a.m. most people had left. Those remaining included:
• Demarco Smith
• Casey Downey
• “Dee” (Jermaine Simmonds)
• Wanda Beals
• Kim Beals
• Neville Provo (aka “Puddy”)
• Katrina Fraser
• Rolisha Fraser (aka “Renee”)
• Waniek Fraser
• Ashley Fraser
She said that she was an 8.5 out of 10 on scale of intoxication having consumed “a couple of coolers, a couple of beer, and a shot or two of vodka”. In her opinion, everyone there had consumed a fair amount of alcohol.
Her description of the “commotion” as she referred to it is also unreliable in some parts. There are elements that are in common with other witnesses, but overall my impression is that she was struggling to accurately recall the events. To some extent it appeared as if she was trying to recreate the events in her mind. There were some instances, however, where I concluded that she was consciously minimizing Mr. Downey’s level of aggressiveness.
She testified that the accused and Mr. Downey were arguing and in answer to defence counsel she agreed that it was “heated”. The commotion began in the middle of room by a pole next to the love seat where she was sitting; then it moved to area next to the long table along the back wall of the basement. At one point she recalled her father pushing Mr. Downey to a corner to restrain him. She noted that Mr. Downey appeared upset.
At one point she testified that:
I seen a hand reach up- saw knife – I don’t know whose; saw a hand reach up to grab it…later saw it on the table, before they took off upstairs
…pretty sure Dee had it.. I think Renee had it after… so fast
This was in contrast to her statement in which she said that she did not see a knife, only that she heard someone yell that someone had a knife. After further questioning the result of her testimony is that she thought that Dee took a knife from Demarco Smith and that Rolisha Fraser took it from Dee. She then saw the knife on a table in the basement before everyone went upstairs.
She testified, as well, that she thought there would be a fight and that Casey Downey and Demarco Smith went toward the stairs. She was not sure if Mr. Downey ran after Mr. Smith. She did not see what happened to Mr. Downey and she did not see a second knife.
It was a very short time after this that she heard Katrina yell out from upstairs that Casey was on the ground and everyone ran upstairs. Demarco was gone and did not return.
It was Lashawnda Fraser who called 911and she estimated that it was about a half hour before police arrived which would suggest the 911 call was around 6 a.m. to 6:20 a.m.
Rolisha “Renee” Fraser
Rolisha Fraser, also known as “Renee”, was the person for whom the party was being held. It was her birthday. Like others, she described it as a nice event until the incident leading to Mr. Downey's death. She said that at approximately 3 a.m. the party ended and she and others were cleaning up. By that time she would describe herself as being impaired at a level of 7 out of 10.
She describes hearing an argument but not paying much attention. She felt that Neville Provo, Casey Downey and Demarco Smith were talking in the corner of the room and that it was under control. She took a bag of garbage upstairs and then returned to the basement. At one point she heard someone yell "they are fighting". She could not say how the fight escalated. She became aware that Casey was injured and she waited in the basement until the police arrived.
In cross-examination she was referred to evidence given at the preliminary inquiry, having had her memory refreshed, she then recalled that Mr. Provo was holding Mr. Downey at one point. She agreed that Mr. Downey was upset and that at one point he she observed Mr. Downey running. It was after that when she heard the words "Casey's down".
She identified exhibit 5 as her purse. She did not recognize exhibit 6, the knife. She said that she did not have her purse with her all evening and could not account for how the knife got in her purse.
That concludes the review of the evidence of the persons attending the party.
Forensic Evidence
Dr. Marnie Wood is a forensic pathologist who carried out a post-mortem examination of Casey Downey on February 8, 2010. The autopsy revealed a stab wound to the chest, which injured the heart and major vessels of the left lung. This caused fatal bleeding. The location of the wound is more particularly described on page 2 of her report:
The wound is oriented from the three o'clock to the nine o'clock position and the track is in the direction of nine o'clock. The stab wound enters the thoracic cavity through the second intercostal space. There is a scalloped defect in the superior aspect of the left third rib approximately 2 cm lateral to the costochondral junction. The stab wound incises the left pulmonary vein, the left pulmonary arteries, the pericardium and the posterior aspect of the left atrium.
The clean edges of the entry wound suggested to her a sharp object like a knife had caused the injury. She described the scalloped feature on the upper part of the third rib which lined up with the entry wound. She concluded that the damage to the rib was consistent with a serrated blade or alternatively with one that had moved along the rib as the blade followed its course. She testified that the knife identified as exhibit 6 had serration along the blade that was consistent with the damage to the rib. She added that in total, the blade of the knife identified as exhibit 6 was consistent with the wound.
In Dr. Wood's opinion, this wound was inevitably fatal. She testified that even if this were to occur in the presence of a surgeon it is unlikely that the wound could be repaired in time to save the person's life. She testified that Mr. Downey would have gone unconscious very quickly after suffering the wound.
Mr. Downey was measured at 5'10" tall and weighed 136 pounds. This would make him approximately 2 inches taller and approximately 45 pounds lighter than Mr. Smith at the time of the stabbing.
Michelle Fisher, a forensic specialist with the RCMP, carried out DNA comparison analysis on exhibits seized at the scene.
She examined swabs taken from the basement floor, the stairs leading from the basement to the main floor, the kitchen floor and the island in the kitchen, Rolisha Fraser's purse and various parts of exhibit 6, the knife that was found in that purse.
Ms. Fisher identified a swab taken from the basement floor as that of Mr. Downey. She testified that the blood of Ashley Fraser and of Casey Downey was mixed in a sample located on the first step from the top of the staircase leading from the main floor of the house to the basement.
She confirmed that Ashley Fraser's blood sample was consistent with samples taken from the kitchen at the Downey Road house.
Swabs examined from four locations on the knife, exhibit 6, disclosed blood of mixed origin consisting of three or more individuals and with at least one of those individuals being a male.
Christopher Keddy is a toxicologist. He examined samples taken from Mr. Downey's body during the post-mortem examination. He stated that he could safely opine that Mr. Downey likely had a blood-alcohol content of 200 mg%. Mr. Keddy described the effect of alcohol in this amount as causing a more profound effect on a person's judgment, decision-making, vision (including blurring); that there would be an increased willingness to take risks, and a feeling of increased confidence. Mood would be elevated.
Tests also disclosed the presence in Mr. Downey's body of:
5. THC (the main psychoactive component of cannabis).
6. Methamphetamine (also known as crack, ice) which is a potent CNS stimulant. It tends to speed up the body and create a rapid flight of ideas. Heart rate is increased and a sense of euphoria is increased. Mr. Keddy though was of the opinion that the amount found in Mr. Downey had no impact on his performance as it was probably taken in excess of 12 hours prior to his death.
7. Finally, he found BZP and TFMPP which Mr. Keddy described as similar to an amphetamine and methamphetamine and that are often used in the rave scene. These latter two drugs are considered to be relatively mild stimulants compared to cocaine. The quantity though was too low for analysis. He concluded that consumption of these latter drugs would have to been in excess of 12 hours prior to death.
Overall, Mr. Keddy was of the view that Mr. Downey would have been very impaired by alcohol which was augmented by the THC. The other drugs would have had no or negligible effect.
That concludes my review of the evidence.
Analysis
There is no contest to the allegation that Casey Downey died in the early morning of February 7, 2010, at North Preston, in the County of Halifax and Province of Nova Scotia, and I so find these elements of the offence to have been proved beyond a reasonable doubt.
It is also incontrovertible that Mr. Downey died very quickly after being stabbed with a sharp object that penetrated through his clothing and into his left lung and then into the left side of the chamber around his heart and finally into the left atrium of the heart. The stab wound was the cause of death.
The first question that must be answered is whether it has been proven beyond a reasonable doubt that the accused, Demarco Smith, committed the act of stabbing Casey Downey? I am satisfied that it has been proven beyond a reasonable doubt that he did.
Dr. Wood’s opinion is that Mr. Downey died very quickly after receiving the stab wound to his heart. There is no evidence to suggest that Mr. Downey was stabbed after he left the basement. To the contrary, the blood trail that included Mr. Downey’s blood begins in the basement, and is found on the stairs.
The last person who Mr. Downey came into contact with in the basement was the accused, who by his own admission was holding a knife in his hand and exactly at the level where the sharp object penetrated Mr. Downey’s chest. Mr. Smith describes a collision when Mr. Downey is alleged to have run into him. That collision would have brought both of Mr. Smith’s hands, including the one holding the knife into direct contact with Mr. Downey’s chest. There is no evidence to suggest that the injury suffered by Mr. Downey occurred before that collision. No blood trail was found beyond the base of the stairs and there is no evidence to support a conclusion that he was stabbed before he got to Mr. Smith’s location.
When Mr. Smith saw Mr. Downey fall to the floor, he left almost immediately because he feared apprehension; he feared retaliation, and according to him he wanted to get rid of the knife that he had in his hand when Mr. Downey came at him in the basement. These are all facts consistent with his awareness of having been responsible for stabbing Mr. Downey.
When Mr. Smith was interviewed by the police, he made several statements that were consistent with his awareness that he was responsible for Mr. Downey’s death. He indicated that he intended to apologize to Mr. Downey’s family and that he was sorry for what had happened to Casey Downey. He told Cst. Kirton that he acted in self-defence, that it was Mr. Downey that had come at him first.
Mr. Smith had the opportunity and means to stab Mr. Downey. The timing of his collision, when taken with the forensic evidence, is consistent with his having stabbed Mr. Downey. Finally, Mr. Smith effectively admitted that he did it. In my view the only rational conclusion to be drawn from all of the evidence is that Demarco Smith stabbed Casey Downey. This means that Mr. Smith committed homicide within the meaning of s. 222(1) of the Criminal Code.
Non culpable homicide is not a criminal offence but culpable homicide is murder or manslaughter or infanticide according to s. 222(4) of the Code.
Section 222(5) says:
A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence; …
The Crown asserts that Mr. Smith’s possession of a knife contravened s. 88(1) of the Criminal Code as it was a weapon in his possession for a dangerous purpose and so was an unlawful act. Alternatively, the Crown submits the use of the knife was an act of criminal negligence. There is also, of course, the issue of the use of the knife in the stabbing itself and the principal offence.
The Crown relies upon the provisions of s. 229(a)(ii) of the Criminal Code to affix Mr. Smith with liability for murder. That section states:
229. Culpable homicide is murder
(a) where the person who causes the death of a human being
…
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;…
The defence argues that Mr. Smith acted in self-defence within the meaning of section 34 of the Criminal Code.
I turn now to my findings of fact. I have previously noted the difficulties with the reliability and in some instances the credibility of the witnesses who were present in the basement at the time leading up to and during the stabbing. I am alert to the impact upon witness memories of alcohol consumption, the late hour, the confusion surrounding the dispute, the passage of time, and the difficult position that some witnesses found themselves in when asked to testify to events that were uncomplimentary to either or both of Mr. Downey and Mr. Smith. Notwithstanding these frailties in the eyewitness testimony, I find that there is sufficiently reliable and credible evidence that speaks to the events and which leads me to the following conclusions.
There is nothing remarkable about the party itself. Those who attended seemed to enjoy themselves. There was no indication of the trouble that was ahead.
I accept that Mr. Smith arrived at the party as he said, and that Mr. Downey entered the party at the invitation of Jermaine Simmonds, aka “Dee”.
I accept that Mr. Smith remained sober through the course of the evening but that Mr. Downey was impaired by alcohol and drug ingestion. I also accept the evidence that describes Mr. Smith as a little shorter than Mr. Downey but approximately 45lbs heavier. Mr. Smith, as seen in the video statement to the police, was healthy and fit at that time. He was also approximately 4 years older than Mr. Downey who was around 20 years of age at the time. I accept that Mr. Smith and Mr. Downey were essentially strangers to each other before that night. I accept that Mr. Smith had exhibit 6, the knife, in his possession when he arrived at the party. It is possible that he had a second knife with him as well. I do not accept, however, that Mr. Smith found a knife outside in the snow. I do not accept that he picked up a knife without looking to see what it was. His explanation that he wanted to keep it out of harm’s way was not credible. He made no attempt to identify an owner of the knife.
Once in the party, Mr. Smith and Mr. Downey had little to do with each other until Mr. Provo began to pack up his equipment in preparation to leave. That would have been sometime between 5 a.m. and 6 a.m. I base this time estimate on the general agreement that the 911 call was made almost immediately after Mr. Downey fell to the floor and that the police arrived approximately a half hour after the 911 call was made.
I accept that Mr. Downey became belligerent with Mr. Smith. I accept that it may have begun as Mr. Smith says, with the two of them sitting in close proximity to each other and with Mr. Downey poking at Mr. Smith telling him to help out Mr. Provo, and not accepting Mr. Smith’s explanation that he had already offered to do so but was refused. No witness, other than Mr. Smith can say how the argument began, but it is apparent from other witnesses that this was the topic of the initial argument.
I do not accept Mr. Smith’s version of the argument once Mr. Provo returned to the house. When Mr. Provo came in he, and others observed Mr. Smith and Mr. Downey in an argument. Both men were displaying anger. I have previously noted in my review of Mr. Smith’s testimony that I do not accept his assertion that he did not get angry with Mr. Downey. I accept that Mr. Downey was the aggressor and that Mr. Smith, although vocal, did not attempt to approach Mr. Downey. Mr. Provo restrained Mr. Downey to keep him from going after the accused. I do not accept Mr. Smith’s allegation that Mr. Downey took a swing at him while Mr. Smith was getting up out of a chair. Mr. Smith has Mr. Provo grabbing Mr. Downey when that occurred, but Mr. Provo did not see a swing. In fact what Mr. Provo describes when he came in is a different scene then what Mr. Smith would have the court understand. What he sees are two individuals that are in direct conflict with each other. As well no other witnesses at the party observed seeing Mr. Downey take a swing, as was described by Mr. Smith.
I do believe that Mr. Downey uttered a threat to Mr. Smith and that Mr. Smith took a knife, probably exhibit 6, out of his pants and held it by his side. Dee joined in the argument. I accept that this knife was taken away from Mr. Smith. What is less clear is whether it was returned to him so that ultimately it was in fact the knife that was used to stab Mr. Downey; or as he says, that he had a second knife in his possession that was used when Mr. Downey was stabbed.
Mr. Provo released Mr. Downey, in part to deal with the problem that he thought Dee was creating and in part because I believe he concluded that a fight between Mr. Smith and Mr. Downey was inevitable. This is a view that was offered by a few witnesses, that is, that it was expected that these two individuals, Mr. Smith and Mr. Downey, were going to have a fight.
I accept that at one point in this argument that took place around the dance floor area, that Mr. Downey did put up his fists as if to fight. I also accept that there is no evidence that Mr. Downey had a weapon in his possession or that he threatened to use one, or that Mr. Smith had any belief that Mr. Downey was armed. The evidence does not support a conclusion that Mr. Downey had a present ability to carry out the threat to “dome” Mr. Smith, which Mr. Smith interpreted as a threat to kill.
I accept that Mr. Smith moved away from the dance floor area to an area closer to the laundry room where the bar had been set up. That area was also in close proximity to the staircase going up to the main floor.
Mr. Smith was standing there with Ashley Fraser. He had sufficient time to pull out the knife and open the blade. Almost immediately Mr. Downey came toward him and the two met face to face.
Until that time, Mr. Smith gave no indication that he feared Mr. Downey. To the contrary, the evidence suggests that he welcomed the opportunity to have a physical confrontation with Mr. Downey. I do not accept his evidence that he was not angry with Mr. Downey. I do accept the evidence that says he was “mad”, “loud” and verbally aggressive toward Mr. Downey. While he may have had no intention of making the first strike, Mr. Smith was not going to back down either. The accused had ample opportunity to withdraw from the confrontation, but his response was to stand his ground and on two occasions take out a knife in anticipation of Mr. Downey’s anticipated attack. Mr. Smith was not surprised by Mr. Downey’s pursuit of him – he expected it and had prepared to greet it while armed with a knife. He had no reason to believe that Mr. Downey would be similarly armed. Their relative ages, and physical build did not suggest that Mr. Smith was going to be at any disadvantage in a fist fight.
Mr. Smith’s description of the manner in which he put his hands up to ward off Mr. Downey is inconsistent with the physical evidence describing the angle and thrust of the knife into Mr. Downey’s chest.
The angle of entry to Mr. Downey’s chest was from Mr. Downey’s left to right. The entry wound is consistent in size with the width of the blade of exhibit 6, but not with its length. The path of the knife inside Mr. Downey’s body is consistent with the length and width of the blade in exhibit 6. The scalloping is consistent with a serrated portion of the blade of the knife identified as exhibit 6.
If the blade was parallel to Mr. Downey’s chest at the point of the alleged collision, as Mr. Smith demonstrated in court on two occasions, then the length of the blade would have pressed against Mr. Downey’s clothing. There is no evidence that occurred. None of the clothing has a cut or impression that is consistent with this occurring. Mr. Downey’s skin was not marked in a way that is consistent with this. Instead the angle of entry supports a conclusion that the knife point entered the chest at an angle creating a straight path to the heart. This leads to the conclusion that Mr. Smith has not accurately described the position of the knife that was in his hand relative to the position of Mr. Downey’s chest at the time that the knife entered Mr. Downey’s body.
The blade of the knife pierced three layers of clothing, scalloped a rib and continued to follow a path through pulmonary arteries and veins and into the heart chamber. It is not credible to say that the force associated with Mr. Downey colliding with the accused in the manner that Mr. Smith and Mr. Fraser described would account for this type of wound.
There are further difficulties with the collision described by Mr. Smith. I have previously reviewed the testimony of Ashely Fraser and drawn attention to concerns over his evidence. Initially he said there was no such collision. He agreed ultimately that the two did collide but for about two seconds and that he got pushed, although he couldn’t say how that occurred. I accept that any contact that took place between Mr. Smith and Mr. Downey was brief and not of significant force. I do accept that Mr. Downey came toward Mr. Smith, that he was moving quickly and that the parties came into close contact face to face during which time the knife plunged into Mr. Downey’s body.
Interestingly and as an aside I note that Mr. Smith says that the conversation he was having with Ashley Fraser immediately before Mr. Downey’s arrival was about calming down and this should not be going on. That evidence would be consistent with the view that was expressed by some: that the dispute was expected to continue as to between Mr. Smith and Mr. Downey; although I acknowledge that the language being used was suggesting that Mr. Smith was not looking for a fight.
At this point I want to make some observations of Mr. Smith’s overall credibility. For reasons that are unclear, Mr. Smith was evasive about where he lived and who he lived with at the time of this incident. It is incredible to suggest that he could not remember the name of a woman with whom he lived for a few months and could only recall calling her “Baby”. It is also difficult to believe that he knew so little about where he lived at that time.
His description of his actions after the stabbing is also evasive. Assuming for the moment that he did take the knife with him to get rid of it, he was wholly unwilling to disclose where he put it. I can speculate that to do so would have lead the police to find that there was no such knife to be found; or that, as he suggests, he simply wanted to make sure he frustrated the investigation by hiding evidence. Neither explanation lends confidence in his willingness to be forthright and truthful in his sworn testimony.
I have already rejected Mr. Smith’s story of finding a second knife. In my view it is not material as to whether the knife he used to stab Mr. Downey was exhibit 6, or another knife that was very similar to it and which he had already had in his possession. Both possibilities exist. The important thing to note is that he carries at least one knife but when asked his reason for doing so, he can only attribute it to “habit” and that he had no particular reason to carry one. I find that this answer also lacked credibility.
I have also set out my views of Mr. Smith’s demeanour during the altercation with Mr. Downey. I conclude that he minimized, to the point of being untruthful, what he was really thinking about, and saying to Mr. Downey. I conclude that he saw Mr. Downey as disrespectful and aggressive and that it made him angry. At one point in his testimony he did acknowledge that when he pulled out the first knife it was because he was “agitated”, which was his word. I also conclude that he controlled that anger sufficiently so that he was not going to be the aggressor; but that he would prepare himself for when Mr. Downey came after him, which Mr. Smith knew was going to happen. In a sense he was lying in wait for Mr. Downey to attack him.
I reject Mr. Smith’s evidence that he forgot that he had a knife in his hand at the time of the alleged collision. This is simply not credible. I do not accept the defence theory that Mr. Smith raised the knife to Mr. Downey’s chest as a reflex action that occurred without thought on the part of Mr. Smith. Nor do I accept the suggestion of counsel for the defence that Mr. Downey impaled himself on the knife.
I conclude that Mr. Smith intended to stab Mr. Downey. The question that flows from this finding is what are the legal consequences?
The prosecution has referred me to the cases of R. v. Cooper (1993) 1 S.C.R. 146, and R. v. Moo 2009 ONCA 645 for their statements of law in the application of the current section 229(a)(ii) of the Criminal Code. Cory J. writing on behalf of the majority in Cooper held beginning at para. 18:
18 This section was considered in R. v. Nygaard, supra. On the issue of the requisite intent the Court was unanimous. At pages 1087-88, it was said:
The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in death of the victim. The aspect of recklessness is almost an afterthought...
19 The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not.
20 The concept of recklessness was considered by this Court in Sansregret v. The Queen, [1985] 1 S.C.R. 570. At page 582 it was said:
[Recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.
21 The same words can apply to s. 212(a)(ii) with this important addition: it is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim.
22 It is for this reason that it was said in Nygaard that there is only a "slight relaxation" in the mens rea required for a conviction for murder under s. 212(a)(ii) as compared to s. 212(a)(i). The position was put in this way at p. 1089:
...[where] two accused form the intent to repeatedly and viciously strike a person in the head with a baseball bat realizing full well that the victim will probably die as a result. Nonetheless they continue with the bone-splintering, skull-shattering assault. The accused ... must have committed as grave a crime as the accused who specifically intends to kill ... I would conclude that the crime defined in s. 212(a)(ii) [now 229(a)(ii)] can properly be described as murder and on a "culpability scale" it varies so little from s. 212(a)(i) as to be indistinguishable.
The court then concludes as follows in para. 23:
23 The intent that must be demonstrated in order to convict under s. 212(a)(ii) has two aspects. There must be (a) subjective intent to cause bodily harm; (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is [page156] only when those two elements of intent are established that a conviction can properly follow.
Watt J.A., writing in Moo, summed up the fault element in section 229(a)(ii) as follows beginning at para. 45:
45 The fault element in the definition of murder in s. 229(a)(ii) consists of three components:
* Intention (to cause bodily harm);
* Knowledge (that the bodily harm will probably be fatal);
* Recklessness (whether the victim dies or lives).
Subjective foresight of death is a constitutional requirement for the crime of murder: R. v. Martineau, [1990] 2 S.C.R. 633, at p. 646.
46 The most prominent among the three components of the fault element in s. 229(a)(ii) is the intention to cause bodily harm of such a grave and serious nature that the person inflicting the harm, the accused, knows that the harm is likely to kill the victim. This combination of intention and subjective foresight of the likelihood of death renders the recklessness component in s. 229(a)(ii) almost an afterthought: R. v. Nygaard, [1989] 2 S.C.R. 1074, at pp. 1087-1088.
47 The recklessness component of the fault element in s. 229(a)(ii) does not exist in a vacuum as the only mental or fault element, rather works together with the intentional infliction of horrible bodily harm: Nygaard, at p. 1088. The variation in the degree of culpability as between the fault elements of ss. 229(a)(i) and 229(a)(ii) is too slight to warrant distinction: Nygaard, at pp. 1088-1089.
48 The requirement in s. 229(a)(ii) that the fatal assault be carried out in a reckless way, in other words by heedlessly proceeding with the deadly assault well-knowing the obvious risks, adds nothing to the vital element of the intent to cause bodily harm that the killer knows is likely to cause death and yet persists in the assault: Nygaard, at p. 1088. Anyone who causes bodily harm that she or he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences that she or he knows are likely to happen: R. v. Cooper, [1993] 1 S.C.R. 146, at pp. 154-155. In other words, such a person must, perforce, be reckless whether the victim lives or dies: Cooper, at p. 155.
I am satisfied that Mr. Smith intended to cause bodily harm to Mr. Downey. On two occasions he pulled out a knife and was prepared to use it to injure Mr. Downey. On the second occasion he did that. As I have found, I reject Mr. Smith’s explanation that this was an accident caused by Mr. Downey colliding with him and causing the knife to enter Mr. Downey’s body. Mr. Smith was prepared for a fight, but chose to be armed with a knife in that fight.
Was it Mr. Smith’s intention to cause bodily harm of such a grave and serious nature that he knew that the harm was likely to kill the victim? Mr. Smith was armed with a knife that had a blade of sufficient length, width and construction as to be self-evidently capable of causing serious bodily harm. He chose to stab Mr. Downey in a location of the chest and at an angle that aimed directly at the heart, a vital organ. He had already prepared himself earlier to use a knife in any confrontation with Mr. Downey. He had time for reflection on that decision and yet armed himself a second time leading to the fatal blow. I infer from these facts that Mr. Smith knew that the harm caused by a stab wound to the heart would likely be fatal and that he showed a deliberate disregard for the fatal consequences that he knew were likely to happen.
Defences
For the purpose of this discussion, I note that references to section 34 and other related self-defence provisions rely on the Criminal Code provisions that existed as at the time of the alleged offence. The decision to apply these provisions was determined by me in a pretrial motion.
Did Mr. Smith have a lawful excuse for stabbing Mr. Downey? Section 34(1) of the Criminal Code reads:
Self-defence against unprovoked assault
34. (1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
A defence under section 34(1) can only be relied upon if all the statutory elements have been met, see R. v. Hebert, [1996] S.C.J. No. 65, paragraph 23. If I have a reasonable doubt on all the elements of the defence then the Crown’s challenge to it cannot succeed. The elements of the defence are: (1) that Mr. Smith was unlawfully assaulted; (2) that he did not provoke the assault; (3) that the force used by him was not intended to cause death or grievous bodily harm; and (4) that the force used was not more than necessary to enable him to defend himself. If the Crown establishes beyond a reasonable doubt that one of these elements is not present, the defence fails (Hebert, paragraph 25).
I have concluded that the evidence has proven beyond a reasonable doubt that Mr. Smith intended to cause death or grievous bodily harm to Mr. Downey.
I am also satisfied that in the circumstances of the dispute between these two individuals, having regard to their comparative physical builds and levels of impairment, that the use of the knife was significantly more than was necessary to ward off any threat that might have been posed by Mr. Downey. I note that Mr. Provo, who compares favourably in his build to that of Mr. Smith, was able, just minutes before, to control Mr. Downey by grabbing his wrists. He did not need to punch or otherwise strike Mr. Downey to exert control over him. Mr. Downey was unarmed and Mr. Smith never says in his testimony that he was anything more than a bit nervous as to what Mr. Downey would do. His testimony laid no evidentiary foundation for this defence, notwithstanding that he mentioned it to Cst. Kirton at the police station on the day he was booked for the charge.
The evidence before me therefore satisfies me beyond a reasonable doubt that this defence fails on the third and fourth factors I have listed above as such it is not necessary to address the first two.
There remains the question of whether s. 34(2) of the Criminal Code provides a defence to the charge. It says:
Extent of justification
34 (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
This provision generates the following questions:
First – Has the Crown proved beyond a reasonable doubt that Mr. Downey did not assault the accused, or, that Mr. Smith did not reasonably believe that Mr. Downey assaulted him?
If it has, then the defence of self-defence (under s. 34(2)) fails. If not, then I am to consider the next question which is:
Second – Has the Crown proved beyond a reasonable doubt that Mr. Smith did not reasonably believe that he would be killed or suffer grievous bodily harm as a result of Mr. Downey’s assault?
If it has, the defence of self-defence (under s. 34(2)) fails. If not, then I consider the final question which is:
Third – Has the Crown proved beyond a reasonable doubt that Mr. Smith did not reasonably believe that he could not otherwise preserve himself from death or grievous bodily harm?
If it has, then self-defence (under s. 34(2)) fails. If it has not, then I must acquit Mr. Smith on the basis of self-defence.
In summary, if the answer to one or more of these questions is “yes”, the defence of self-defence fails.
If the answer to all three questions is “no”, then the conditions for self-defence are present and Mr. Smith is to be acquitted of murder.
I will deal with question 1: has the Crown proven beyond a reasonable doubt that Mr. Downey did not assault the accused or that Mr. Smith did not reasonably believe that he was assaulted by Mr. Downey.
The definition of assault in s. 265 of the Criminal Code provides that assault includes the application of force or the threat to apply force. The force could be great or even quite slight. I am not satisfied beyond a reasonable doubt that Mr. Downey’s approach to Mr. Smith was not an assault. The evidence is clear that Mr. Smith was stopped and talking to Mr. Ashley Fraser when Mr. Downey moved quickly toward Mr. Smith, and that they came chest to chest with each other. Given the earlier argument, Mr. Smith may have correctly perceived that Mr. Downey’s behaviour constituted a threat to apply force to his person, that is Mr. Smith’s person.
The second question: Has the Crown proved beyond a reasonable doubt that Mr. Smith did not reasonably believe that he would be killed or suffer grievous bodily harm as a result of Mr. Downey’s assault?
So the question is did Mr. Smith have reasonable grounds to believe that he would be killed or suffer grievous bodily harm? In this context I take “grievous bodily harm” to mean any significant hurt or injury that interferes with a person’s physical well-being in a very serious or severe way. It need not be permanent or life-threatening.
What did Mr. Smith perceive in the circumstances? Did he reasonably fear for his life or safety? Even if he mistakenly believed that his life and safety were in danger, I must consider whether he actually had reasonable grounds for those beliefs. In making that assessment I must also take into account whether those beliefs would be reasonable from the viewpoint of an ordinary person placed in the same circumstances.
Mr. Smith did not testify that he feared either death or grievous bodily harm at the hands of Mr. Downey. It might be said that ends the inquiry in which case the defence would fail. However, I will continue to consider all of the evidence. On two occasions Mr. Smith felt it was appropriate to arm himself with a knife in response to an anticipated attack by Mr. Downey.
I have previously reviewed the evidence. The parties were strangers to each other and there is no question that Mr. Downey was aggressive and was seeking a physical confrontation with Mr. Smith while in the area of the dance floor. Mr. Downey’s threat to “dome” Mr. Smith is evidence that could cause a reasonable person to believe that Mr. Downey was intending to cause death or grievous bodily harm to Mr. Smith. This was followed by Mr. Downey’s pursuit of Mr. Smith to where the stabbing took place. At that point it was evident that Mr. Downey was unarmed, however even an unarmed angry person can cause serious injury or even death.
The Crown’s opposition to the application of this section is not frivolous in this respect; nevertheless I am left with a reasonable doubt on this second question, that is, whether Mr. Smith did believe and had reasonable grounds to believe that Mr. Downey could cause him grievous bodily harm or injury.
The third question. Has the Crown proved beyond a reasonable doubt that Mr. Smith did not reasonably believe that he could not otherwise preserve himself from death or grievous bodily harm?
People are justified in causing death or grievous bodily harm to others in self-defence, but only if they reasonably believe they cannot otherwise protect themselves from death or grievous bodily harm.
So am I satisfied beyond a reasonable doubt that it was not reasonable for Mr. Smith to believe that he had no other means to preserve himself from death or grievous bodily harm?
I am so satisfied. There was no reasonable basis upon which Mr. Smith could believe that he needed to stab Mr. Downey in the chest to preserve himself from death or grievous bodily harm. In this context, it is significant that Mr. Smith never expressed any fear of Mr. Downey. One would expect that if he felt that stabbing Mr. Downey was the only way to preserve himself from harm, then he would have testified to that effect.
Mr. Smith had ample opportunity to leave the area to avoid conflict with Mr. Downey and he chose not to do so on more than one occasion. Had he done so, we probably would not be here today. Mr. Smith was present when Mr. Provo demonstrated that Mr. Downey could be managed by grabbing him and pinning him. Mr. Smith was not facing an attacker who was armed or who had a significant physical advantage. In fact, the opposite is true. It was Mr. Smith who had more weight and his height was not substantially less.
The evidence shows Mr. Downey to have been quite significantly impaired, while Mr. Smith was not. While some persons under the influence can be more aggressive, as Mr. Downey was at times, the toxicologist’s evidence suggests that Mr. Downey’s motor skills and judgment would be significantly impaired, making him a much less formidable opponent in a fight.
In my view Mr. Smith did not reasonably believe that it was necessary to stab Mr. Downey in order to preserve himself from death or grievous bodily harm. He did not say that was the case and the circumstances of the offence say that it would have been unreasonable for him to have had that belief. I conclude the Crown has met its burden.
Conclusion
I find Demarco Smith guilty of the second degree murder of Casey Downey as charged in the indictment before the Court.
Duncan, J.