Provincial Court

Provincial Court of Nova Scotia

 

Citation: R.  v.  MacNeil, 2013 NSPC 66

Date: 2013-04-09

Docket: 2464111-2464116

Registry: Dartmouth

Between:

Her Majesty The Queen

v.

Ashton Thomas MacNeil

Judge:	The Honourable Judge D. Timothy Gabriel
Heard:	April 9, 2013, in Dartmouth, Nova Scotia
Revised Decision:	The text of the original decision has been corrected (October 3, 2013) and replaces the previously distributed decision
Charges:	Sections  267(a), 268(1), 175(1)(a)(i), 145(3), 145(3), 145(3), Criminal Code
Counsel:	Ms. Cheryl Byard, for the Crown Mr. Patrick Atherton, for the Defence

By the Court:        Gabriel, J.P. C. (Orally)

           

[1]                  We're here today in relation to a decision in the R. v. Ashton Thomas MacNeil matter. 

[2]                  The evidence was taken on March 26th, 2013.  I reserve the right, counsel, since I'm reading from my notes, to edit my decision for grammar and punctuation and things like that later on if need be; however, my reasoning will not change and my decision obviously will not either.

[3]                  On Saturday, May 19, 2012, Jason Snyder spent his time with some friends during the afternoon.  His birthday was on Monday and he and Jeff Awalt planned to go to Big Leagues Beverage Room in Cole Harbour.  A band was scheduled to play in which the two were interested.  Mr. Snyder had three to four beer between his friend's house and his own that afternoon and more when he reached Big Leagues around 10:30 that evening.  In all he had about ten beer over the eight-hour period, which began at 2:00 p.m. that afternoon.

He and Mr. Awalt and Mr. Snyder's wife, Nicole, met some friends, including Derek and Coleen Parker at the establishment.

[4]                  At some point perhaps around 11:30 p.m. Mr. Snyder went to the washroom.  As he came out he noticed Awalt and another gentleman speaking.  This other individual, was identified by Awalt as Justin Saulnier, and he seemed to be somewhat animated.  Awalt confirmed this, suggesting that Saulnier was a friend whom he hadn't seen for a few years.  Saulnier seemed aggressively friendly upon meeting Awalt, rubbing his head, shadowboxing with him, and attempting to get him in a choke hold.

[5]                  Awalt described Saulnier's behaviour variously as “goofy” and “idiotic”.  Having viewed the tape, that seems an appropriate description.  As Snyder came upon the two, Awalt introduced Saulnier to him and then used the fact that they appeared to be speaking with one another as a pretext to get away.  Snyder described the conversation as one-sided, the music was so loud he couldn't hear anything Saulnier was saying.  Under these circumstances his practice is to smile and nod which is what he described himself as doing.

[6]                  Shortly after their conversation was underway, Saulnier appeared to become aggressive and confrontational.  His body language and eyes made this clear.  The video capture, which is contained in the disk marked as Exhibit 6, shows Saulnier reaching to his left and putting down his drink then getting closer to Snyder, or in the vernacular "getting in his face."

[7]                  As he viewed the tape Snyder testified that at this point Saulnier's fists were clenched and his eyes were wide.  Snyder testified that he chose not to engage Saulnier, he's a former professional boxer who doesn't engage in fights in contexts such as these.  As he put it, "I could hurt someone."  The video bears him out.  At 23:49:06 hours, Mr. Saulnier appears to be directly in front of Mr. Snyder.  Saulnier's friend Matt has circled to the victim's left. 

[8]                  Snyder says that he tried to tell Saulnier to calm down.  At 23:50:20 he can be seen trying to walk away.  Snyder testified that Saulnier followed him and grabbed him by the shoulder turning him back around.  The parties have moved off to the top right approximately centre of the screen by this point.  With the crowd in attendance that evening milling about, they can no longer be clearly seen at this point.

[9]                  Snyder testified that he ended up facing Saulnier whose friend Matt has also gotten up close to him.  Snyder has his right arm extended to keep Matt at bay while he faces Saulnier whom he considered was preparing to strike him.

[10]             At this point someone other than Saulnier or the individual identified as “Matt”, strikes Snyder from the left.  The assailant hit Snyder with a drink glass with enough force that he sustained a concussion, extensive lacerations to the left side of his forehead and over his left eye requiring approximately 36 stitches to close.

[11]             He was rushed to the QEII where he was treated by Dr. Earl Sears.  Dr. Sears testified that Snyder had been extremely fortunate not to have lost his eye.  As it is, Mr. Snyder testified that he continues to suffer periodic headaches, he can no longer spar in the gym, he suffers from anxiety attacks, and has missed two weeks from his work.  He's the manager of a local auto repair shop.

[12]             Mr. Snyder never did see who struck him.  All he knows is that someone other than Saulnier (who was directly in front of him) and other than Saulnier's friend, Matt, (who was to his right at arm's length) did it.  The assailant struck him from the left.

[13]             The Crown says that the assailant was Ashton Thomas MacNeil.  Mr. MacNeil has been charged with assaulting Mr. Snyder with a weapon contrary to Section 267(a) of the Criminal Code; aggravated assault contrary to Section 268(1); causing a disturbance in a public place contrary to Section 175(a)(I) of the Code; and three Section 145(3) charges.

[14]             Besides Snyder and Dr. Sears, the Crown called eight other witnesses.  Neither Saulnier or his friend, Matt, testified.  The defence called no evidence.  Mr. MacNeil contends that the case against him with respect to all but the 145(3) charges has not been proven beyond a reasonable doubt.  With respect to the 145’s, he admits his guilt.

[15]             The relevant portions of Section 267(a) of the Criminal Code read as follows: 

                   267. Every one who, in committing an assault,

                   (a) carries, uses or threatens to use a weapon or an imitation thereof, or...

[16]             "Assault" is noted in section 265(1) to consist of the "direct or indirect application of force to another person without his or her consent."  Mr. Snyder, whose evidence I accepted in its entirety, did not consent to the application of force, either directly or indirectly.  There is no doubt that he was assaulted.  If I may lapse into the vernacular, he was viciously “suckered”.

[17]             Was a weapon used in this commission of this assault?  Again, this must be answered in the affirmative.  Both Derek Parker and Coleen Parker, whose evidence I'll refer to a little later, described the assailant as cupping a drink glass and holding his palm downward and striking the victim in the area approximate to his left eye with a forceful downward swing of his arm and hand. 

[18]             "Weapon" is defined in Section 2 of the Code to mean anything used, designed to be used or intended for use in causing death or injury to any person, or for the purpose of threatening or intimidating any person.  Clearly, the drink glass cupped in the palm of a hand and held downward while striking the victim was used in causing the injury to Mr. Snyder.  It was deployed as a weapon by the assailant.

[19]             Section 268(1) states that everyone commits an aggravated assault who wounds, maims, disfigures or endangers the life of the life of the complainant.  The testimony of Dr. Sears, that of Derek and Coleen Parker, and that of Mr. Snyder himself have amply demonstrated that Mr. Snyder was wounded.

[20]             The element of wounding requires breaking of the skin and clearly that is what happened here to Mr. Snyder as a result of the application of force by his assailant.  If it were required, I would have also found that Mr. Snyder was disfigured by the strike.

[21]             As to causing a disturbance, the relevant portions of Section 175(1)(a)(i) reads:

              175. (1) Every one who

              (a) not being in a dwelling-house, causes a disturbance in or near a public place,

              i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,…

[22]             The elements of Section 175 have likewise been proven.  Clearly, Big Leagues Tavern is not a dwelling house, it is a place open to those members of the public 19 years of age or older.  A fight did occur and it resulted in a disturbance requiring the intervention of bar staff and also the subsequent attendance by police.

[23]             The foregoing then deals with all of the elements of the offences that the Crown has proven beyond a reasonable doubt.  One element (and only one) remains, and it is common to the 267(a), the 268(1), and the 175(1)(a)(i) charges. 

[24]             Am I satisfied beyond a reasonable doubt that the accused is the individual who struck Mr. Snyder?

[25]             The Crown contends there were several bases upon which I can conclude that the accused is guilty of the above offences.  First, we have the video disk recording at Exhibit 6.  Second, we have the evidence of Constable Pilon who said he watched the video and can clearly see that it was the accused who struck Mr. Snyder.  And finally, the eyewitness evidence of Derek and Coleen Parker who identified the accused as the perpetrator and also picked him out of a photo lineup at the police station and also identified him in court.

[26]             Dealing first with the video disk recording.  Exhibit 6 was introduced by the Crown.  David Latter, the owner of Big Leagues Dining Room located at 920 Cole Harbour Road, Cole Harbour, Nova Scotia, testified that he authorized his manager to provide the recording disk showing the video captured during the relevant portion of May 19th, 2012, up to and shortly after midnight on May 20th.  This was handed over to the RCMP.

[27]             As Mr. Latter indicated, the bar deploys a total of eight cameras, six inside and two outside.  The forefront of the visual recording captured in Exhibit 6 shows the floor area of Big Leagues, the doors are at the very top of the screen on the right.  The dance floor and bar are also proximate to the top of the screen. 

[28]             It is to be noted that the washroom is located to the bottom right (off screen), and it is also noted that the further towards the top of the video screen one looks, the harder it is to make out individuals.  This is particularly so given the number of people that were in attendance that evening and the steadily diminishing scale of the representation of these individuals as they move away from the forefront of the screen.

[29]             The forefront of the video screen presents the viewer with far less difficulty.  In fact, during the time interval between approximately 23:30:00 and 23:50:55 hours (which letter was in the general vicinity of the time of the assault), it is possible to see the individual identified by a number of witnesses, including Mr. Snyder, as Justin Saulnier coming in and out of the area.

[30]             The accused can also be seen on more than one occasion entering and leaving the forefront of the video comprising the floor area.  Again, this is the area featured most prominently and clearly in the video recording.  For example, Mr. MacNeil is seen at 23:39:52, 23:43:10, and 23:43:26, as well as 23:43:23.  These times will be revisted further on when the evidence of Constable Pilon and that of Mr. and Mrs. Parker is considered in more detail.

[31]             Exhibit 6 also shows the discussion between Messrs. Awalt, and Saulnier at approximately 23:35:11.  By 23:47:32 hours -(I assess this in conjunction with the viva voce evidence that Mr. Awalt offered) Mr. Awalt has left the group.  The individuals identified as Matt, and Mr. Saulnier have remained speaking with Mr. Snyder.  At 23:49:06 Mr. Saulnier is observed to stand directly in Mr. Snyder's face.  Although his back is to the screen he seems to be posturing up, his fists are clenched and his face appears to be very close to that of Mr. Snyder.  Matt appears to be circling to the victim's left.

[32]             At 23:50:20 hours Snyder appears to walk away, which coincides with the evidence that he has offered (and which I have reviewed earlier).  He walks towards the top and centre of the screen, if I can use that expression.  As he does so, the participants become more difficult to track amongst the milling crowd.

[33]             The motions of the two are consistent with Mr. Snyder's testimony about what unfolded beyond this point.  Snyder testified that Saulnier at this point grabbed him by the shoulder as he walking away and turned him around so that the two men were face-to-face.  At approximately this time the assault appears to have occurred.  However, neither the grab on the shoulder, the turning around or the subsequent assault is apparent from a perusal of the video (Exhibit 6).

[34]             Sometime between 23:50:20 and 23:51:19 (the latter is when the outside cameras registered an injured Mr. Snyder being taken outside preliminary to being placed in the ambulance), the assault occurred.

[35]             Constable Pilon was one of the RCMP officers dispatched to the scene in the early morning hours of May 20th, 2012, shortly after midnight.  The call indicated that someone had been hit with a glass object.  He testified that he's familiar with Mr. MacNeil who was arrested behind the bar that evening on Liquor Control Act and Section 145(3) charges by the two officers that accompanied him:  Constables Murphy and Isenor.

[36]             Constable Pilon identified Mr. MacNeil and reviewed the video disk in some detail during the course of his testimony.  Without exhaustively reviewing with that evidence, most crucially he points out that MacNeil appears front and centre in the recording at 23:39, 23:41, 23:44 hours, as well as on an earlier occasion.  I accept that MacNeil is clearly shown on these occasions.

[37]             Again, most critically, Pilon testifies that at 23:50:46, having carefully examined the video recording, he is able to clearly see Ashton MacNeil standing to the left of the victim, and he says that he can see MacNeil strike the victim with an object in his hand, and he can see that the liquid apparently jettison from the glass in the act of MacNeil wielding it.  This is to be seen at the very top of the screen (according to Constable Pilon), a little left of centre.  At 23:50:53 Constable Pilon states that people start to point in the direction where he observed Snyder and MacNeil, and the bar staff can be seen taking some individuals outside.

[38]             Constable Pilon testified that he's had a lot of experience during his career with the RCMP reviewing video recordings; however, he did not elaborate much beyond that.

[39]             As I alluded to earlier, I carefully observed Exhibit 6 and the recording contained thereon on at least two occasions preliminary to preparation of my decision.  I was unable to see on the basis of that review who struck the victim.  Accordingly, I have no indication beyond a vague reference by Constable Pilon to his experience in this regard and can take little comfort in his assertion that he clearly saw Ashton MacNeil in the tape strike Mr. Snyder.  I will again return to Constable Pilon's evidence in a later context.

[40]             Dealing with the evidence of Derek and Coleen Parker.  These witnesses are husband and wife.  On Saturday, May 19th, 2012, the two went to Big Leagues in Cole Harbour as they were interested in seeing the band that was playing that night.  They arrived between 9:00 and 9:30 that evening and met up with the victim Jason Snyder and some others with whom they were acquainted.

[41]             Mr. Parker had some beer both before and after his arrival at the premises.  Ms. Parker was sober.  She does not drink and did not drink that evening.  She was the driver.  They stayed outside talking with some others until the band was ready to begin playing, at approximately 11:00 p.m.

[42]             Upon entrance, they described two levels on either side of the bar.  Again, it is to be noted that this entrance area would be in the very top of the screen to the right of the centre and is contiguous or close to both the bar and the dance floor, which is also in the area that would be seen the top of the screen if one were watching Exhibit 6.

[43]             The seating area is accessed by going up approximately two steps either to the right or to the left the bar.  The Parkers went to the left side and stayed there for approximately two to three songs, then went over to the other side to speak with some friends of the family who they had observed to be seated there.

[44]             After speaking with these people for a while, Mr. Parker got up and went to the entry of the walk-up area, which was somewhat of a platform.  Ms. Parker states that she looked over towards her husband and in so doing saw the bar.  Her attention immediately became fixed on a group of approximately four to five males gathered around their friend Mr. Snyder.  One was behind him, the rest were facing him.

[45]             This group was about six feet away from her.  An individual who she saw in three-quarter profile cupped a thick drink glass downward in the palm of his hand and made a fast swinging overhand motion at the victim.  She saw what she thought was ice come flying toward her, which she assumed had come from the glass, and her first thought was that this person had simply thrown a drink at Mr. Snyder.  She hadn't seen anything that Mr. Snyder had done to precipitate such an action.

[46]             This individual was described by Coleen Parker as a white male with very short dark brown or black hair and approximately 5'10" or 5'11" in height and approximately 180 pounds in weight.

[47]             She described this individual as possessed of a muscular well-defined jaw.  His eyes were, to her, striking and they seemed extremely intense.  She later picked the accused out of a photo line-up which I will deal with shortly.

[48]             Immediately after what she first assumed was a tossed drink, someone other than Jason Snyder jumped up and was obviously bleeding.  She heard a yell "Someone got hit" and grabbed some napkins and applied them to this other individual who was discovered to only have superficial cuts.  This took about one and a half minutes, then she went outside to join her husband who had exited when the commotion occurred.

[49]             When she exited the bar she saw Jason Snyder holding a T-shirt over his left eye.  He was bleeding profusely.  Blood was everywhere. 

[50]             She had not seen the glass actually strike him because her husband, who was to her immediate left when the incident took place, would have blocked the final point of the trajectory of the assailant's hand and the glass held in it.  Everything else she saw, as she testified.

[51]             Derek Parker had seven to eight beer over the period of time from 8:30 to 11:30 p.m. that evening.  He described the noise level throughout the evening as very loud.  Immediately before the assault he was standing on the platform at the entrance to the seating area, what has been described as the walk-up area.  He saw Jason Snyder walking toward the dance floor.

[52]             As an editorial note, in so doing he would have been walking from the bottom of the screen towards the top central portion of it, if we were looking at Exhibit 6.

[53]             Mr. Parker testified that he saw Jason Snyder walking toward the dance floor and observed him look behind and smile towards a group of about six to seven males apparently in response to something they had said to him.

[54]             The second time he did so, it appeared that more words were exchanged between Snyder and these others.  Mr. Parker testified that he observed the accused come around to the left side of Jason Snyder and cup him with a quick downward motion of his hand and arm.  He saw the full face of the accused.  He observed the victim stagger and he and another individual immediately went down and helped Mr. Snyder out the exit door area.  When they were out in the parking lot 9-1-1 was called.

[55]             Mr. Snyder had blood everywhere.  He was cut over his forehead and over his left eye.  Mr. Parker almost immediately (upon coming out with the victim) observed the same individual that he says hit Mr. Snyder, i.e., the accused, exit and run off.  This would have occurred approximate 14 seconds after he came out himself with the bleeding victim.

[56]             He described the accused as white, 5 foot 10 or 5 foot 11, approximately 170 pounds, with a shaved head and wearing a shirt that he thought was white, although he's not a hundred percent sure, along with blue jeans.  Both Mr. Parker and his wife described the lighting inside as poor with different coloured lights being used for lighting purposes, particularly in the vicinity of the stage where they had been seated.  Likewise, both indicated that they did not know Ashton MacNeil and had not seen him before May 19th, 2012.

[57]             Constable Brian Underhill described the photo line-up process in which Mr. and Mrs. Parker participated.  This took place on May 27, 2012, each was done separately and they were kept segregated and not allowed to communicate during the process as it was unfolding.

[58]             They were each provided with a photo picture line-up containing ten pictures.  These were contained in booklet form.  Each witness separately identified the accused as the perpetrator.  Each admitted on cross that by the time they attended on May 27th, 2012, (for the photo line-up) they had heard rumours about the involvement of an Ashton MacNeil in the assault.  However, they had no idea what he was supposed to look like or indeed that his photo was among those they viewed.  Very little dispute was taken with the procedure followed on the administration of the photo line-up by the police.  I concluded that it was done appropriately and the process followed did not detract in any way from the recognition that or the identification that each of Mr. and Mrs. Parker purported to make.

[59]             Exhibit 4 is the photo line-up presented to Coleen Parker.  Her signature appears on the third picture in the series.  Although as I've indicated there were ten photos in the array, she didn't need to see any more.  She was positive that this was the individual who struck Mr. Snyder with the cup.  She was completely sure.

[60]             Exhibit 5 is the photo line-up presented to Mr. Parker.  His signature appears on photo number 8 of the ten pictures comprising that exhibit.  Likewise, he is positive that Mr. MacNeil was the person who struck Jason Snyder.

[61]             Against this factual backdrop I have to determine whether the Crown has proven that Ashton MacNeil was the individual who performed the acts that resulted in the serious injuries to Jason Snyder that evening.  I have stated before that this is the only issue raised by the defence.

[62]             Leaving aside the evidence of Constable Pilon who said he had observed the footage in Exhibit 6 and could actually identify the accused as the perpetrator, the only eyewitnesses linking the accused to this vicious assault were Coleen and Derek Parker.  Mr. Snyder did not see who struck him.  He only knows that it wasn't Justin Saulnier or “Matt”.  Saulnier was in front of him and Matt was off to his right, being warded off by Snyder's right arm as I previously indicated.

[63]             Pilon's evidence amounted to a mere assertion that he could see MacNeil.  Having reviewed the tape, I attach no weight to that assertion given that it was not accompanied by anything substantive indicating what advantage that officer had when viewing the tape that was not available to the Court.  Granted, he's an experienced police officer but without more, the Court cannot take any comfort from his identification the accused from the footage. 

[64]             He did not, for example, give any particulars of any special training or expertise he had received in the analysis of visual exhibits, nor did he even testify that he had been able to use additional equipment (not available to the court) to subject the film to higher magnification than what was available when the Court and counsel viewed it.

[65]             Moving on, to state what should be obvious, the Crown bears the burden of proof throughout.  That burden never shifts.  The accused did not testify or offer evidence and he doesn't have to.  He's fully entitled to say to the Crown, as he has:  “You haven't proven it.  You haven't proven it was me.  He's not required to prove or disprove anything, himself.

[66]             To state something else that may not be equally obvious to the non-lawyers in the room, I'm not engaged in a quest to find out the truth of what “really happened” here.  I'm not a detective.  I'm here to determine whether I'm satisfied beyond a reasonable doubt of the accused's guilt solely on the basis of the evidence that the Crown has presented.

[67]             The concept of reasonable doubt has been discussed in many, many cases.  By way of example, our Court of Appeal in R. v. Miller, 2009 NSCA 71 at paragraph 82 approved the following:

[68]             The principle of proof beyond a reasonable doubt is an essential part of the presumption of innocence.  A reasonable doubt is not a far-fetched or frivolous doubt.  It is not a doubt based on sympathy or prejudice.  It is a doubt based on reason and common sense.  It is a doubt that arises at the end of the case based not only on what the evidence tells you but also on what the evidence does not tell you.  Proof of probability or likely guilt is not proof of guilt beyond a reasonable doubt.  You should remember, however, that it is nearly impossible to prove anything with absolute certainty.

[69]             That said, as the Supreme Court of Canada has pointed out in R. v. Lifchus, [1997] 3 S.C.R. 320, proof beyond a reasonable doubt is much closer to absolute certainty than it is to proof on a balance of probabilities or mere probable guilt.

[70]             Against that background, we may begin to consider the evidence of Mr. and Mrs. Parker in somewhat more detail.  Since they were eyewitnesses, this is also a topic over which much ink has been spilled.  One representative example of the caution with which such eyewitness identification evidence must be treated is found in R. v. Roach (2010), N.S.S.C. 342, where Bryson J., as he was then, noted:

It is incumbent on the trial court to be especially cautious of identification evidence because of its frailties which has resulted in many wrongful convictions.  Such evidence is frail in at least two senses.  First, it has been amply demonstrated that human powers of observation and recollection are fallible.  Secondly, the circumstances in which identification of an accused is made can compromise the accuracy and reliability of such identification.  Circumstances such as how long a witness was able to view an accused, from what position, from what distance, and with what lighting are all important.Whether the witness was personally acquainted with the accused can be a factor.  What description the witness gives and whether the witness is able to identify the accused from a lineup can be critical.  How much time passes between the event described and the identification to police is also important.

[71]             Another critical point which I must keep in mind is with respect to the distinction between the credibility or truthfulness of a witness and the reliability of the evidence of that witness.

[72]             In R. v. Atfield (1983), 42 A.R. 294, which was a decision of the Alberta Court of Appeal, in paragraph 3 the court stated:

Honesty is determined by the jury or judge sitting alone by observing and hearing the witnesses, but correctness of identification must be found from evidence of circumstances in which it has been made or in other supporting evidence.  If the accused ... if the accuracy of identification was left in doubt because of the circumstances surrounding the identification aren't favourable or the supporting evidence is lacking or weak, honesty of the witness will not suffice to raise the case to the requisite standard of proof and a conviction so founded is unsatisfactory.  Now, no exhaustive list or litany of factors can be developed which will be universal application.  The evidence must be scrutinized very carefully.

[73]             In the Supreme Court of Canada case of Mezzo v. The Queen, [1986] 1 SCR 802 that court indicated, to the effect that in keeping with frailty of visual identification and the quality or weight of this evidence such factors as the length of observation, distance of the observer, lighting, obstructions, familiarity with the accused or lack thereof, time elapsed between the observation and description to the police, degree of attention by the witness, consistency with other witnesses, and other factors can be considered.

[74]             With this in mind, I turn to the Parkers' evidence.  It has to be clearly stated at the outset that I found both Derek and Coleen Parker to be truthful and honest people.  While Mr. Snyder is their friend and they were clearly appalled at what happened to him, neither had known or seen Mr. MacNeil prior to May 19, 2012, and had no ulterior motive to implicate him.

[75]             Mrs. Parker had not consumed any alcohol that evening, she does not drink.  Her husband had consumed eight to ten beer, and was (in his words) "buzzed", but the quality of his observations were consistent with those offered by Messrs. Awalt and Snyder and did not seem contrived or rehearsed.

[76]             For example, Mr. Snyder described himself as attempting to walk away from Mr. Saulnier and his friends and being turned around by Mr. Saulnier as he did so.  What Mr. Parker described was seeing Snyder walk towards the dance floor and looking back at Mr. Saulnier and his entourage at least twice.  He appeared to be smiling as he did so.  The second time he looked back, which is broadly consistent with his being turned around by Saulnier, words were exchanged and he observed the accused come out from around to the left side of the victim and strike him with a glass cupped in the palm of his hand.

[77]             Mrs. Parker described the victim as being surrounded by about four males and one of them making an overhand striking motion at him while holding a thick glass in the palm of his hand.  Her husband blocked her view of the actual point of contact, as noted previously.  At six feet away she was close enough to see what she thought was ice emanate from the area of the palm and the glass that appeared to be cupped in the hand.  She at first thought a drink had been thrown.

[78]             Mr. Parker was about three feet away from the accused and saw his face fully and completely.  His wife saw the accused's face in three-quarter profile.  What struck her was the jaw line and the striking intensity of the eyes.  Although the lighting was very poor, both were very close to the scene, in fact, almost right on top of it.

[79]             Ms. Parker and her husband described what I referred to earlier as poor lighting, which largely resulted from the fact that there were different coloured light beams being played, including some blue and black ones.  This would have been most prominent in the area of the stage, as they would likely have been featured as part of the band's light show.

[80]             Ms. Parker described the accused as wearing a light blue shirt with a collar.  Mr. Parker said he was wearing what he thought was a white shirt, although he wasn't a hundred percent sure, and blue jeans.  The manner in which both Mr. and Mrs. Parker provided their evidence with respect to the assailant's attire, I concluded, represented somewhat hesitant attempts to describe his clothing rather than an attempt at a categorical statement.  I'll return to this shortly.

[81]             This assumes more importance in light of the testimony of Constables Murphy and Derek Isenor.  They described the accused (whom they found running around the greenbelt behind the bar when they arrived on the scene), as wearing a black T-shirt.  Murphy further says that MacNeil was wearing orange shorts.  Isenor said he was wearing “orange-peachy” shorts.

[82]             Returning to the video footage at Exhibit 6, which, as I indicated, I had occasion to observe at least twice very carefully (in addition to the time spent watching it during the trial).  Mr. MacNeil on those occasions when he appears in the foreground of the video is seen to be wearing a dark T-shirt without a collar, with a circular insignia on the front and some words across the shoulders and back in white lettering.  The colour cannot be stated with certainty as the video footage was in black and white.  Only some of the words, the ones in larger print, can be made out on the back of the T-shirt.  These legible words consist of the words "Of seeing".  There is smaller print which is not legible.

[83]             More of Mr. MacNeil's clothing than just his shirt is discernible.  Between 23:41 and 23:45:56 hours the accused makes at least three appearances in plain view.  On one of these occasions occurs while he is walking on the far left of the screen from the top three-quarter portion thereof, until he walks off screen in the lower left quadrant.  A brief split second view of his clothing from the waist down reveals shorts that extend a little below his knee, which are light in colour which appear to have some sort of a design on them, perhaps checkered. 

[84]             Then again from the back, one also gets a very brief glimpse of his clothing below the waist in the interval between 23:49:37 and 23:49:48 hours.  Again, these are brief glimpses but the attire can be clearly seen when the video was stopped and paused at the relevant points.

[85]             Between 23:49:37 and 23:49:48 Mr. MacNeil appears at the bottom of the screen and walks up to and ultimately past the disputants Saulnier and Snyder, the latter occupying a position more proximate to the central forefront of the screen.

[86]             At 23:49:48, the end of this interval, Mr. MacNeil appears to pause very briefly when he arrives parallel to the disputants and then, after his momentary pause, he squeezes past Saulnier, Snyder, Matt, et al and goes, (again if I were using the orientation peculiar to a viewer watching the video screen), I would say he squeezes past them to go upwards through the crowd to the top approximately central area of the screen where he is quickly diminished and ultimately lost in the crush of people up there.

[87]             The place was packed with people.  The fact is that the figures get progressively smaller and less easy to pick out the further toward the top of the screen that the accused progresses.  As I said, he heads toward the top of the screen and he can only be glimpsed fleetingly thereafter, although he is in the general proximity to the left of the centre of the screen when fleeting glimpses of him are last observed.

[88]             This is the area that we know is in the vicinity of the bar and the dance floor where the assault occurs a very short time later.  In fact, less than a minute after Mr. MacNeil is seen to be going up in that general direction.

[89]             So we know certain things.  We know the accused first was at Big Leagues that night.  We know how he was dressed in an approximate sense.  We know he is seen at 23:49:48 heading towards the top centre of the screen, the vicinity in which the assault, on the basis of the testimony of Mr. and Mrs. Parker and other witnesses, ultimately occurs.

[90]             We know that as Snyder turns to walk away from Mr. Saulnier at 23:50:23 he too heads in the direction that MacNeil has just gone, just to the left of the top centre of the picture.

[91]             We know from Snyder's testimony, which I accept, that Saulnier catches up to him and grips him by the shoulder to turn him around, and that it is at this point, moments afterward, where the assault occurs.  We also know that in the top centre portion of the screen depicts the area in the vicinity of the dance floor and also is in the vicinity of the area in which those watching the band, such as the Parkers, would have been seated.  We know that the outside camera captures the victim being brought outside at 23:51:18 hours, and that Ashton MacNeil is observed exiting the bar with another unknown male exactly 16 seconds after the victim is brought out.

[92]             We know that Mr. Parker, who went outside with the victim, says as soon as they took Mr. Snyder out, the same individual who had struck Mr. Snyder came out and took off.  In effect, he exited the building and ran off.  We know that this observation is consistent with the fact that when the police attended the scene the accused was found running around the greenbelt in the back of Big Leagues.  We know that Mr. and Mrs. Parker positively identified the accused in this courtroom and in the photo line-up as the perpetrator of the attack on their friend and declared that they were completely certain that they had the right guy.

[93]             What then are we to make of the Parkers’ misdescription of the accused’s clothing and the fact that they had heard it rumoured before going up to the police station on May 27th, 2012, that an individual named Ashton MacNeil was responsible?

[94]             It is true that there was a divergence between the clothing the Parkers described the assailant as wearing and Mr. MacNeil's attire that evening.  He is observed in Exhibit 6 recording as wearing clothing broadly consistent with that described by the two officers that picked him up behind Big Leagues.

[95]             However, it must be borne in mind that neither Derek nor Coleen Parker in my view, having observed their testimony, purported to state categorically that they were certain of the colour of the clothing.  The tenor of their evidence together with how they actually said it was such that I did not get the impression that they were certain in that regard.  Indeed, Mr. Parker made that explicit; he said he wasn't a hundred percent certain that the T-shirt was white.

[96]             Second, they had at most a couple of seconds to observe the assailant and during that period both were intently focussed on the faces of the individuals that they observed confronting Jason Snyder, their friend.  They were far more interested in watching them and what was unfolding than noting in detail the clothing that they were wearing.  Coleen Parker, in particular, who had not been drinking, made this explicit, commenting on the memorable intensity of the assailant's eyes and the firm set of his jaw preliminary to the strike.  So too the lighting in the vicinity of the dance floor and seating area and stage, which was multicoloured, including black and blue lighting, would likely have presented an impediment to colour recognition inside the premises. 

[97]             This impediment would not have been a factor when the police arrived and found Mr. MacNeil outside, but it would have ... it may possibly have impaired the Parkers' identification of colour on the interior while the multicoloured lights were flashing.

[98]             The interior lighting would not, in my view, however, have impeded facial recognition from a mere six feet and three feet, respectively.  I do not attribute any significance to Ms. Parker's mistaken recollection that the assailant's shirt was collared for the same reason noted above.  She was not focussed primarily on the man's clothing, she was focussed on what was unfolding and what was happening to her friend.

[99]             They saw Mr. MacNeil's face for a couple of seconds but they were very intent observers over that interval.  They identified the face in a photo line-up in which the ten pictures were viewed in booklet form, each one separately, and while isolated from contact with each other.

[100]        Each stopped looking when they came upon Mr. MacNeil's photograph.  In Ms. Parker's case at number 3.  In Mr. Parker's case number 8.  And they had indeed heard the name Ashton MacNeil bruited around by some of their friends as perhaps the perpetrator of the assault before attending the police station on May 27th, 2012.

[101]        That said, they had no idea what he looked like or that his photo would even be in the photo line-up.  They made this very clear in their testimony and I accepted their testimony as truthful witnesses.  They made their identification in court and at the police station based on what they saw at Big Leagues on May 19th, 2012.  In so doing, I consider that their evidence was not only completely credible but reliable as well.

[102]        While it is true that Ms. Parker was confronted on cross-examination with a statement made to police on May 27th during the photo line-up process to the effect:  "I've never done this before.  I'm not sure that's the person.  You know what I mean."

[103]        I'm satisfied from the explanation that she offered when she testified that the statement did not in the context in which it was offered suggest any uncertainty with respect to her identification of the accused and did not impair the reliability of that identification.

[104]        I also want to deal with one other issue, and that relates to Mr. MacNeil's running away or taking off when he exited the bar approximately 16 seconds after the victim was brought out.  This was relevant to my assessment of his identification of MacNeil, but only to the extent that Mr. Parker identified him as the same man running away as the one that had struck Mr. Snyder inside, and that from the police evidence we know that MacNeil was indeed found by the police running behind Big Leagues when they arrived, in the greenbelt behind Big Leagues.

[105]        I want to emphatically note that the mere fact of his running did not influence my analysis of the reliability of Parker's evidence beyond that narrow point.  For example, I did not treat the fact that by running away he was providing post-offence evidence or conduct signifying an awareness of his guilt of the charges of which he stands accused under Sections 268(1), 267(a) or 175(1)(a).

[106]        I did not use the fact that he ran away at any point or treat it such that I considered it enhancing the reliability of either Parker or his wife's identification or testimony involving Mr. MacNeil.  The reliability of their evidence, as I have said, did not require any such buttress or enhancement.  But for the reliability of the Parkers' identification evidence of Mr. MacNeil as the assailant, his flight might have been explicable on the basis of his admission to the police when they found him:  "I'm supposed to be on house arrest and I'm on conditions not to drink."

[107]        I'm therefore satisfied beyond a reasonable doubt of the accused's guilt of the charges that he is facing.

[108]        Before entering a conviction of guilt on the record I'll hear from counsel as to their views on the applicability of the Kienapple principle with respect to any of these charges.

[109]        Perhaps I'll hear from the Crown first.

[110]        MS. BYARD:    Yes, Your Honour, the Crown would submit that given your comments that an aggravated assault has been made out that there wouldn't be a conviction also on the perhaps assault with a weapon but there should be a conviction on the causing a disturbance.  And, of course, he's admitted that he breached recognizance, so the latter two counts on the Information as well.

[111]        THE COURT:   Mr. Atherton?

[112]        MR. ATHERTON:     Yes, Your Honour, I would think that the 267 will be a Kienapple'd out by virtue of the 268 finding of guilt because for what it's worth, the disturbance stands as it is, Your Honour.

[113]        THE COURT:   All right.  I apply the principles distilled from the Supreme Court of Canada case in R. v. Kienapple.  I stay the charge involving assault with a weapon.  I enter a conviction of the charge of aggravated assault and causing a disturbance, and, of course, the three Section 145 charges are admitted.