“Client found not guilty of murder after Judge accepted argument that client acted in self-defence.” [COMMENTS BY RICHARD NEARY]

R. v. B_____

Between
Regina, and
G B_____, K R D B_____ and
K St____ B_____

[2010] B.C.J. No. 159

2010 BCSC 126

Docket: 146111

Registry: Victoria

British Columbia Supreme Court
Victoria, British Columbia

J.R. Dillon J.

Heard: November 16-20, 23-27, 30, December 1-3, 7-9 and
15-17, 2009.
Judgment: January 29, 2010.

(151 paras.)

Criminal law — Defences — Self-defence — Reasonable apprehension of death or grievous bodily harm — Trial of KSB and his sons on charges of second degree murder of T___ — Accused acquitted — KSB admitted that he choked T___ during fight, thereby causing his death — T___ assaulted KSB and K with a gun, and KSB believed he was going to be shot — KSB reasonably believed that he faced death or grievous bodily harm from T___'s attacks and that he had no other course of action open to him but to stop T___ by choking him to preserve himself from further attack — No evidence that sons aided or abetted an unlawful act.

Trial of G B_____, K B_____ and their father, K B_____ Sr., (KSB), on charges of second degree murder of T___. KSB admitted that on May 30, 2008, he choked T___ twice in the course of a fight, thereby causing his death. However, he claimed that this was done in self defence. His sons were alleged to have of O____ jointly perpetrated or aided and abetted the death. K was also charged with the assault and the assault of A____. K and G were charged with assault causing bodily harm to D_____. All of the charges arose from events that occurred when the B_____s attended at a known crack house, owned by Do____. They were met by T___, who brandished a gun and a fight ensued. The B_____ brothers, who were addicted to crack cocaine, had an acrimonious relationship with T___. T___ summoned KSB to the crack house to discuss an alleged debt owed to him. When KSB arrived, with his sons in tow, T___ was high on cocaine and behaving erratically. KSB testified that he came up the back stairs and was confronted by T___, who was wielding and pointing a gun at him from an elevated position. T___ went back and forth against the fence pointing the gun alternately at KSB and K, who were not armed. KSB took the closest place that provided protection while K stood still near the bottom of the stairs. While pointing the gun, T___ was yelling and "freaking out." He was extremely agitated, incoherent and threatening. KSB testified that his efforts to calm the situation were futile as T___ charged at him and made a motion to fire the gun. KSB testified that he thought that he was going to be dead. It was at this point that KSB acted to protect himself and rammed T___ as hard as he could, falling to the ground. Several witnesses testified about KSB's calm attempts to get T___ to put the gun down and the ensuing fight. T___ recovered initially, and after G managed to get the gun away from him, he came at KSB again, this time with a knife. A prolonged, violent fight ensued, culminating in T___'s death. An autopsy revealed that T___ died from mechanical asphyxia as a result of external compression to the neck. The Crown submitted that the evidence proved beyond a reasonable doubt that all three accused were guilty of murder. The Crown theorized that T___'s death was the result of a joint enterprise: all three accused had animus towards T___; all attended at the crack house together knowing that violence was likely; all participated in the prolonged assault on T___; K and G kept would-be rescuers at bay; all participated in dragging T___ down the driveway; and, they all left together. While KSB medically occasioned the death, his sons were either joint perpetrators or aiders. The accused claimed that the Crown did not establish beyond a reasonable doubt that KSB did not act in self defence. They maintained that the evidence demonstrated that T___ confronted KSB and K in an aggressive, threatening altercation brought on by him alone with his gun in hand, and that T___ continued his assault after the gun had been removed from him. The defence submitted that credibility was central, and that O____, D_____, and A____, in particular, were so sleep-deprived and intoxicated from crack cocaine as to render their testimony unreliable, and that the inconsistencies in both D_____'s and O____'s evidence made it dangerous to give their evidence any weight. Further, K and G had not been proven to have aided or abetted, aside perhaps from being present or, if they did, to have aided a killing.

HELD: The accused were acquitted on all charges. T___ assaulted KSB and K with a gun, and KSB believed that he was going to be shot. T___ was not acting defensively. He started what turned out to be a deadly confrontation by attacking KSB with a gun and threatening him. He was paranoid about the B_____s being there after he had invited them and then acted irrationally in grabbing the gun that did not work. T___'s advanced state of cocaine intoxication, perhaps psychosis, was such that he could be expected to exhibit super human strength and tenacity and to shed pain. T___ continued his assault on KSB by physically charging at him with a knife that he was attempting to open, and he fought ferociously against KSB while saying that he was going to kill him. Although KSB was bigger, he was also older and exhausted, without the super dynamics attributable to T___ from the effects of crack cocaine. There was no reliable evidence that either KRB or G kicked or punched T___ at all. KSB reasonably believed that he faced death or grievous bodily harm from T___'s attacks. KSB reasonably believed that he had no other course of action open to him. He had to stop T___ and he choked him to preserve himself from further attack. There was chaos with glass smashing and people yelling and running around. Others had jumped on KSB or stomped on him during the fight. T___ appeared unstoppable with his incredible tenacity and strength. KSB's strength was waning. In the circumstances, it was difficult to conclude that there was a sensible opportunity to avoid further combat. It was reasonable for KSB to have thought that the only option was to choke T___ as hard as he could. The Crown failed to prove beyond a reasonable doubt that KSB committed an unlawful act or that his sons aided or abetted an unlawful act. It was not established beyond a reasonable doubt that K struck any blows to T___. While G punched and kicked T___, he did so in an attempt to relieve T___ of the gun in furtherance of the self-defence of KSB. The same could be said of his removal of D_____, O____ or A____ from the fray. There was reasonable doubt that G participated in the second stage of the fight when the final choking occurred. There was no evidence to support the charges of assault against K and G.

Statutes, Regulations and Rules Cited:

Criminal Code, R.S.C. 1985, c. C-46, s. 34(2), s. 37

Criminal law — Defences — Self-defence — Reasonable apprehension of death or grievous bodily harm — Trial of KSB and his sons on charges of second degree murder of T___ — Accused acquitted — KSB admitted that he choked T___ during fight, thereby causing his death — T___ assaulted KSB and K with a gun, and KSB believed he was going to be shot — KSB reasonably believed that he faced death or grievous bodily harm from T___'s attacks and that he had no other course of action open to him but to stop T___ by choking him to preserve himself from further attack — No evidence that sons aided or abetted an unlawful act.

Trial of G B_____, K B_____ and their father, K B_____ Sr., (KSB), on charges of second degree murder of T___. KSB admitted that on May 30, 2008, he choked T___ twice in the course of a fight, thereby causing his death. However, he claimed that this was done in self defence. His sons were alleged to have jointly perpetrated or aided and abetted the death. K was also charged with the assault of O____ and the assault of A____. K and G were charged with assault causing bodily harm to D_____. All of the charges arose from events that occurred when the B_____s attended at a known crack house, owned by Do____. They were met by T___, who brandished a gun and a fight ensued. The B_____ brothers, who were addicted to crack cocaine, had an acrimonious relationship with T___. T___ summoned KSB to the crack house to discuss an alleged debt owed to him. When KSB arrived, with his sons in tow, T___ was high on cocaine and behaving erratically. KSB testified that he came up the back stairs and was confronted by T___, who was wielding and pointing a gun at him from an elevated position. T___ went back and forth against the fence pointing the gun alternately at KSB and K, who were not armed. KSB took the closest place that provided protection while K stood still near the bottom of the stairs. While pointing the gun, T___ was yelling and "freaking out." He was extremely agitated, incoherent and threatening. KSB testified that his efforts to calm the situation were futile as T___ charged at him and made a motion to fire the gun. KSB testified that he thought that he was going to be dead. It was at this point that KSB acted to protect himself and rammed T___ as hard as he could, falling to the ground. Several witnesses testified about KSB's calm attempts to get T___ to put the gun down and the ensuing fight. T___ recovered initially, and after G managed to get the gun away from him, he came at KSB again, this time with a knife. A prolonged, violent fight ensued, culminating in T___'s death. An autopsy revealed that T___ died from mechanical asphyxia as a result of external compression to the neck. The Crown submitted that the evidence proved beyond a reasonable doubt that all three accused were guilty of murder. The Crown theorized that T___'s death was the result of a joint enterprise: all three accused had animus towards T___; all attended at the crack house together knowing that violence was likely; all participated in the prolonged assault on T___; K and G kept would-be rescuers at bay; all participated in dragging T___ down the driveway; and, they all left together. While KSB medically occasioned the death, his sons were either joint perpetrators or aiders. The accused claimed that the Crown did not establish beyond a reasonable doubt that KSB did not act in self defence. They maintained that the evidence demonstrated that T___ confronted KSB and K in an aggressive, threatening altercation brought on by him alone with his gun in hand, and that T___ continued his assault after the gun had been removed from him. The defence submitted that credibility was central, and that O____, D_____, and A____, in particular, were so sleep-deprived and intoxicated from crack cocaine as to render their testimony unreliable, and that the inconsistencies in both D_____'s and O____'s evidence made it dangerous to give their evidence any weight. Further, K and G had not been proven to have aided or abetted, aside perhaps from being present or, if they did, to have aided a killing.

HELD: The accused were acquitted on all charges. T___ assaulted KSB and K with a gun, and KSB believed that he was going to be shot. T___ was not acting defensively. He started what turned out to be a deadly confrontation by attacking KSB with a gun and threatening him. He was paranoid about the B_____s being there after he had invited them and then acted irrationally in grabbing the gun that did not work. T___'s advanced state of cocaine intoxication, perhaps psychosis, was such that he could be expected to exhibit super human strength and tenacity and to shed pain. T___ continued his assault on KSB by physically charging at him with a knife that he was attempting to open, and he fought ferociously against KSB while saying that he was going to kill him. Although KSB was bigger, he was also older and exhausted, without the super dynamics attributable to T___ from the effects of crack cocaine. There was no reliable evidence that either KRB or G kicked or punched T___ at all. KSB reasonably believed that he faced death or grievous bodily harm from T___'s attacks. KSB reasonably believed that he had no other course of action open to him. He had to stop T___ and he choked him to preserve himself from further attack. There was chaos with glass smashing and people yelling and running around. Others had jumped on KSB or stomped on him during the fight. T___ appeared unstoppable with his incredible tenacity and strength. KSB's strength was waning. In the circumstances, it was difficult to conclude that there was a sensible opportunity to avoid further combat. It was reasonable for KSB to have thought that the only option was to choke T___ as hard as he could. The Crown failed to prove beyond a reasonable doubt that KSB committed an unlawful act or that his sons aided or abetted an unlawful act. It was not established beyond a reasonable doubt that K struck any blows to T___. While G punched and kicked T___, he did so in an attempt to relieve T___ of the gun in furtherance of the self-defence of KSB. The same could be said of his removal of D_____, O____ or A____ from the fray. There was reasonable doubt that G participated in the second stage of the fight when the final choking occurred. There was no evidence to support the charges of assault against K and G.

Statutes, Regulations and Rules Cited:

Criminal Code, R.S.C. 1985, c. C-46, s. 34(2), s. 37

Counsel:

Counsel for the Crown: C. Rogers and P. Weir.

Counsel for the Accused, G B_____: L.D. Marshall.

Counsel for the Accused, K R D B_____: R.
Neary.

Counsel for the Accused, K St____ B_____: S.M.
Kelliher.

 


INDEX

Introduction
Overview of the Evidence

      • (a) Events Leading Up to the B_____s' Arrival at B___ Place on May 30, 2008
      • (b) B_____s' Arrival at B___ Place
      • (c) The Confrontation and Fight
      • (i)  Evidence of KSB
      • (ii) Evidence of D_____
      • (iii) Evidence of Do____
      • (iv) Evidence of F___
      • (v) Evidence of Pa___
      • (vi) Evidence of R____
      • (vii) Evidence of A____
      • (viii) Evidence of Mc_____
      • (ix)   Evidence of O____
      • (x)    Evidence of D____
      • (xi)   Evidence of P____
      • (xii)  Evidence of the 911 Calls
    • (d)  Arrival at the Police Station
    • (e)  Events Pertaining to KRB and GB after the Departure from B___ Place
    • (f)   Search of B___ Place and the Truck
    • (g)  Medical Evidence
      • (i)    Autopsy Evidence
      • (ii)   Evidence of the Effects of Cocaine Use
      • (iii)  Injuries to D_____, O____, and A____

Theory of the Crown and Position of the Defence
Credibility of Witnesses
Count 1: Murder
Count 2: Assault Causing Bodily Harm to D_____
Count 3: Assault of O____
Count 4: Assault of A____
Conclusion

Reasons for Judgment

     J.R. DILLON J.:--

Introduction

1     G B_____ (GB), K R D B_____ (KRB) and K St____ B_____ (KSB) (collectively called the "B_____s") are charged with second degree murder of Keith T___ (T___) on May 30, 2008 near Colwood, British Columbia. Testifying on his own behalf, KSB admitted that on May 30, 2008, he choked T___ twice in the course of a fight, thereby causing his death. However, he claims that this was done in self defence. KRB and GB are alleged to have jointly perpetrated or aided and abetted the death.

2     KRB is also charged with the assault of Andrea O____ (O____) on May 30, 2008 and the assault of Alan A____ (A____) on May 30, 2008. KRB and GB are charged with assault causing bodily harm to Devon D_____ (D_____) on May 30, 2008.

3     All of the charges arise from events that occurred when the B_____s attended at # B___ Place in Colwood, British Columbia on May 30, 2008, and were met by T___ who brandished a gun and a fight ensued. Identity and time and place are not in issue. The assault charges stem from the same incident when O____, A____, and D_____ became involved in the fight.

Overview of the Evidence

    • (a) Events Leading Up to the B_____s' Arrival at B___ Place on May 30, 2008

4     The three accused are father (KSB) and two sons. The two sons had been addicted to crack cocaine for many years. This had caused strife within the family which ultimately lead to professional counselling for the wife/mother and certain rules to distance KSB and his wife from the drug culture of their sons. The sons were not allowed to come home except for extreme conditions related to health and provided that the wife/mother approved first. The sons were not to involve their mother in anything having to do with their lives as she could not handle it any longer. KSB was to be the one to stay in contact and to deal with any matters involving the sons. He had previously given KRB money to pay off a drug debt.

5     On May 30, 2008, KRB was subject to a bail order prohibiting contact with GB. KSB was surety on that order and had reported a breach of the bail order to police. As a result, a render warrant for the arrest of KRB was issued on April 11, 2008, and was still outstanding on May 30, 2008. GB also had a warrant outstanding for his arrest on May 30, 2008 for failure to comply with a court order. KSB had previously informed police about both sons' whereabouts and had been told when he reported the breach of bail condition that the police would deal with it. KSB considered that it was not up to him to enforce the bail order but encouraged his sons to deal with things responsibly on their own.

6     About three weeks prior to May 30, 2008, GB had come to his father for help, telling him that he wanted to clean up. KSB had arranged for a hotel in Parksville for GB and his girlfriend so that GB could deal with his problems, start a new life, and turn himself in. He denied that he was harbouring him from police. KSB testified that he believed that GB was doing well at getting his life in order this time. However, GB had been missing for a week by May 30.

7     About two weeks prior to May 30, 2008, KRB had returned unannounced to the home of his parents. He was sick, skeletal, and covered in sores. His father had him checked at the hospital and then brought him home where he had been mostly sleeping for ten days and rarely saw his father. He had started to come around towards May 28. KSB believed that his support would bring the sons closer to doing the right thing and turning themselves in.

8     The B_____ brothers, KRB and GB, were known to have an acrimonious relationship with Keith T___. This had lasted at least a year prior to May 30, 2008. T___ had been charged with assault causing bodily harm to GB in relation to an incident on June 7, 2007. T___ was arrested and detained from October 9 to November 21, 2007. The charges were eventually stayed on April 2, 2008. S C_____, a friend of GB and KRB, testified that about six to eight months prior to T___'s death, GB came to her house and asked her to arrange a meeting to deal with threats that T___ had made against GB's grandmother over a debt owed by KRB. She said that KRB and KSB waited outside in a car. GB looked rough and had a black eye. He told C_____ that he had been in a fight with T___. C_____ went with GB to another house, had a meeting with a third party about things having gone too far, contacted T___ by telephone, and made arrangements to pay the debt. It was admitted that O____, T___'s girlfriend, observed GB punch T___ in the face at a gas station on February 23, 2008, an apparent unprovoked assault.

9     # B___ Place was the home of Dana Do____ (Do____). It was a three level home up a steep graded driveway. A schematic diagram of the home was entered into evidence and used extensively to describe where witnesses were at various times. The house was known as a crack house, regularly used to consume and traffic in crack cocaine. Various people came and went from the house often, staying overnight or "couch surfing" as needed. It was known as a reliable "crash pad" and a party house.

10     KRB was a friend of Do____ and was known to couch surf at Do____'s house. KRB had paid Do____'s hydro bill after the electricity had been cut off and the two were involved in an arrangement over one or some cars. GB was also known by Do____ as they had met on a few occasions. KSB also knew Do____ from previous visits to the B___ Place house when he had gone there looking for his sons, to assist after a car had been impounded, and once to look at buying the house, but had declined. KSB knew the house to be a crack house, but was sympathetic towards Do____, whom he liked.

11     Dana Do____ testified that T___ and D_____ had arrived a few days before May 30, 2008 and were "couch surfing". In fact, the two had been there for three days and nights, at least since T___ was released from prison on May 27. T___ had been in jail on charges unrelated to the B_____ matter since February 26, 2008. T___ was a muscular 5 foot, 11 inch, 33 year-old weighing 183 pounds with multiple tattoos of skulls, snakes, spider webs, women, devil-like characters and the words "Know Fear" written on the back of the forearms. D_____ and T___ were ex-boyfriend/girlfriend. T___'s girlfriend, O____, was also there overnight on the 29th. D_____ said that O____ had come the day after her and T___. Others were staying at the house including Lisa D____ (D____), her boyfriend, Lincoln Mc_____, known as Lance (Mc_____), A____, and Dallas T___. Dallas T___, D____, and Mc_____ had also stayed more than one night. Although A____ testified that T___ was not at the house prior to May 30, 2008, he also said that he and T___ began their partnership in the drug trade at the house on May 29, 2008. O____ testified that T___ was not at the house when she arrived and also said that he came to the house on May 30. However, she also said that he arrived with D____. Mc_____ testified that he bought cocaine from T___ right after he arrived around May 28. The preponderance of evidence suggests that T___ had been staying at the house at least since May 27, 2008.

12     A crack party had been going on at the B___ Place house for three or four days and nights prior to the incident on May 30, 2008. There was no lack of the drug. D_____ said that she had been doing crack cocaine for three days and nights, with no sleep, at the rate of one "hit" or "hoot" of crack, 1/10 of a gram or more, every 30 to 60 minutes. She said that T___ had been up without sleep and doing drugs for the same period, as well as O____. A____ said that he had not done cocaine with T___ during this period, although he admitted that he was doing the drug at the same rate as O____. Mc_____ and D____ also had no sleep for three days and nights, doing crack cocaine and drinking alcohol. Mc_____ said that there was heavy use by everyone there with non-stop consumption for three days prior to May 30. Do____ testified that, although he had gone to sleep the night of May 29, several others had been up all night and into the next day, including T___ and D_____. The party at the crack house on May 29, 2008 went on into the next day, with many people there in addition to the already named guests, not all of whom knew each other. O____, however, said that there was nobody at the house when she arrived on May 29 and that she went upstairs to sleep in the living room when she arrived while others came and went.

13     Do____ downplayed the crack cocaine scene at the house in his testimony. Although he said that it was very busy at the house, he denied that there was trafficking of crack cocaine or that the bedrooms were used for that purpose. He said that only some were doing crack cocaine. He said that everyone was coming to the house to see T___, "like a reunion". But, from the testimony of others, it is apparent that almost everyone there was doing crack cocaine in the open, with their own pipes, smoking it upstairs and down, on the stairs and throughout the house. At least three people were trafficking crack cocaine, including T___, D_____ and A____, although A____ denied that T___ was selling. Mc_____ testified that he bought crack from T___ and A____, who were mainly on the second level either in bedroom #1 or the master bedroom. D_____ and A____ were working for T___. A____ was T___'s self-professed partner in the business of selling crack cocaine. A____, Mc_____, and others readily acknowledged that drugs were being sold and supplied from the bedrooms, particularly bedroom #1, where T___ spent most of his time. At least one bedroom, bedroom #1, had baggies on the bed, characteristic of drug trafficking.

14     A____ testified that T___ was known to carry a flip blade knife and a gun. He said, however, that the gun was not loaded on May 30, 2008 because the box of bullets for the gun had not been used. Mc_____ testified that he met T___ at the house after his first day there. As they were talking and doing drugs, T___ asked him if he knew anything about guns. They went into the office room together and T___ showed him a handgun that Mc_____ thought belonged to T___, who said that it was jammed. Mc_____ had a look at it and agreed that it was jammed because he could not pull the slide back. He said that it appeared that a bullet was lodged in the chamber, but the gun looked normal. He could not pull it out, but did not spend much time looking at it. He wiped his fingerprints off the gun and gave it back to T___. He and T___ then continued their drug use.

15     KSB drove KRB to # B___ Place on May 29 to deal with an insurance issue on a car. KSB testified that KRB had crashed a car the day before, that Do____ had the insurance in his name, and that KSB thought that a claim had to be made within 72 hours. The exact circumstances of the car insurance and KRB's driving status were not established in evidence. KSB said that he waited in the truck while KRB went in to find Do____. Do____ confirmed in his testimony that KRB came to the house to talk about insurance for a car and Do____ told him to come back the next day. KSB testified that KRB was unable to complete the matter that day because Do____ was too high and had been told by Do____ to come back the next day.

16     Others continued to come in and out of the house on May 30, 2008, but not necessarily staying there. This included Jim R____ (R____), Harold F___, also known as "Jimmy" and "Jackhammer" (F___), Keith Pa___ (Pa___), and D_____'s father, Mike Cousins and his girlfriend Pam. There were so many people coming and going from the house that no witnesses who were there could say exactly who was there, when, or how many. Everyone was doing crack cocaine and buying drugs, mostly from T___. Several witnesses testified that T___ smoked crack cocaine that day, including A____, F___, and Mc_____.

17     On the morning of May 30, 2008, Do____ said that he left the house for awhile with five of the others to pick up a cheque. He said that T___ went with them. He could not be dissuaded from this evidence on cross-examination, even after his statement to police was put to him. D_____ testified that T___ did not leave the house that morning. I conclude that T___ did not leave the house. While Do____ was out, Pa___ came to the house, bought crack cocaine from A____, smoked some and then left.

18     Do____ returned in the early afternoon, although he was not really sure of the time. He said that there were cars there and he wanted to see who was there. Do____ said that he thought that T___ "had something going on". T___ had spent most of his time in bedrooms on the second floor, numbered bedroom #1 and bedroom #2 in the schematic diagram. Do____ said that he went upstairs to the top floor and talked with Pa___. They did not just talk. He and Pa___ were also doing crack cocaine. They had several "hits" that afternoon. T___ was observed by Do____ that afternoon, before KRB arrived, to be consumed by something that was making him mad, agitated, anxious, and upset.

19     KRB came to the house in the afternoon of May 30, 2008. He was in bedroom #1 with T___. He was seen in the room by A____, Do____, D_____, O____, Mc_____, and R____, whose descriptions of that meeting follow.

20     R____ arrived at the house in the afternoon to see A____ about a car. He had never been to the B___ Place house before. He described that he went to bedroom #1, where he found A____ and O____ on the bed, and T___ positioned behind the door. T___ had a gun in his hand. Within ten minutes, there was a knock on the door and KRB entered. As he did so, T___ came from behind the door and put the gun to KRB's head. In direct examination, R____ had said that he had not seen the gun before and assumed that T___ had pulled it from his pocket. However, on cross-examination based upon his statement to police, R____ recollected that T___ had the gun when he had first arrived in the room because it had "freaked him out". R____ said that T___ told KRB that he wanted him to get his father there now, that he wanted money, and that T___ was not happy with him. KRB replied that his father was not around and that his mother was waiting for him at the end of the driveway. R____ was not pleased with this way of doing things, said so, and left the room. He said that others came and went from the room, looking for crack cocaine, as this went on. However, no crack was smoked while KRB was there. R____ went to the backyard and sat on a picnic table.

21     A____ testified on direct examination that T___ had arrived at the house in the afternoon and that KRB showed up afterwards. He said that KRB was not expected and that he was not sure why KRB was there. A____ was in bedroom #1 with O____, R____, T___, and KRB. T___ had just smoked some crack cocaine. He said that T___ had surprised KRB from behind the door but denied that T___ had used the gun which A____ said remained on the bed. In cross-examination, he said that he did not know if T___ had the gun in his hand. He said that T___ had words with KRB about KRB being responsible for his going to jail and that T___ wanted payback money for the time that he had spent in jail. T___ thought that he would use money from KSB to gain a stake in the drug business. T___ told KRB to go and get his father to discuss business. A____ did not recall and had no idea if T___ had wanted GB there too. T___ was agitated, aggressive and loud. He picked up the gun and showed it to KRB. KRB said that he would go and get his father and then they would talk business. KRB appeared calm. A____ left the room after about 7 minutes because he did not feel right about what was going on. He stayed outside in the hallway to make sure that nobody else went into the room. However, others did go into the room. A____ remembered Do____ putting his head into the room later to say that KRB's mother was there. He recalled seeing KRB leave the house.

22     Do____ testified that sometime in the afternoon of May 30, 2008, he heard loud voices arguing and went down to a lower floor bedroom to see what it was all about. The door of bedroom #1 was opened by T___ who said everything was okay. Do____ saw KRB in the bedroom, said "hi", shook his hand and went back upstairs. Do____ had not noticed KRB come into the house. He did not hear KRB's voice in the loud arguing. Do____ said that A____, O____ and Mc_____ were also in the room and was not sure if D____ was also there. There was no loud arguing after he left.

23     D_____ had taken a nap for awhile in the afternoon on the living room couch. This was her first sleep in four days. She said that she was exhausted and her body was shutting down. She said that she did not know how long she slept before she was awakened when her father, Mike Cousins, and Pam arrived. However, at other times, she said that she had a nap and woke up when the truck arrived. Basically, D_____ did not know exactly when she had napped in the sequence of events. Although she said that she last smoked crack before the nap and not after, this is unlikely given her usage and denial of smoking it at other times.

24     Do____ also reported that Mike Cousins and his girlfriend arrived. He said that he told them not to come in because the house was already too busy. Do____ agreed on cross-examination that there were 16 or 17 people in the house, maybe more. So many were coming and going that Do____ was upset. He sensed tension in the house and had already asked O____, D_____, Dallas T___, and D____, to settle down or leave. He had also observed T___ to be agitated and upset. D_____ said that her father did come into the house and sat with her awhile upstairs in the living room. D_____ went downstairs to get T___ from bedroom #1 to come and see her father.

25     D_____ found A____ in the hallway outside bedroom #1. T___ opened the door to bedroom #1 and D_____ asked him if he would see her father. She saw inside the room for a second and observed KRB and T___ talking, both standing. T___ slammed the door angrily.

26     O____ said that she was in bedroom #1 with A____ and T___ when R____ arrived to tell them that KRB was there. T___ stood in back of the door and stepped behind KRB as he put his head into the room. O____ said that the two began to talk about money and T___ told KRB that they owed him a substantial amount for the time that he spent in jail and that KRB should talk to his father and set up a business meeting. In cross-examination, she said that T___ told KRB to get his father and his brother. She said that KRB agreed completely and that the tone was "mellow". At one point a couple minutes into the conversation, she recalled that T___ pulled a gun from his pocket, pointed it at KRB's head, and then put it on the dresser. She said that she had never seen the gun before. O____ said that Mc_____ entered the room at one point but denied that it was to buy drugs. She said that T___ expected the B_____s to come to the house after this meeting and she was sent to look out for them.

27     Do____ testified that he saw a truck pulled up to the driveway with a lady who he thought was KRB's mother. The lady asked Do____ if he could ask KRB to come out from the house. Do____ said that he went back, knocked on the bedroom door and told KRB that his mother was waiting for him. Shortly after, KRB came out and he and Do____ walked down the driveway together. Do____ said that he asked KRB if everything was okay. Do____ said that KRB was very quiet and did not say anything. KRB got into the truck and drove off. O____ also said that KRB's mother had been waiting outside and that he left with her.

28     Mc_____ testified that he and D____ were intimately engaged in the family room when he heard a commotion with louder voices coming from bedroom #1. Mc_____ had been going back and forth to get more drugs from T___ as he wanted. He went to bedroom #1, knocked on the door, and asked T___ if he had more "dope". From the doorway, he saw O____, a man he called "Scruffy", most probably A____, and a man that he did not know off to the left in the room. He said that T___ was having an argument with the man he did not know about money. T___ made threats. Mc_____ did not pay attention to this "big" talk. He described T___ as threatening and aggressive in the 2 to 5 minutes that he was in the room. Mc_____ went back to continue with D____.

29     R____ testified that he had been sitting in the backyard for about twenty minutes when T___ came out. He told R____ that he had let KRB go. R____ responded that this was good because guns were not the way to solve problems. R____ said that T___ appeared more agitated than when he was in bedroom #1 previously. T___ stayed with R____ for about fifteen minutes and then left. R____ went back into the house to the office room where he smoked crack cocaine with A____, O____ and another girl. T___ was seen coming and going amongst the rooms, along with others in the house.

30     Meanwhile on Friday, May 30, KSB, a 53-year old, tall (six foot five inches), and heavy (285 pounds) man, had gone about his normal business as a land developer. He had met project personnel at Mill Bay, visited a project at Lake Cowichan, took clients for lunch, and checked out a job at Peatt Road. He received a call from his wife mid-afternoon and arranged to meet for Friday drinks at Bear Mountain. She did not tell him that she had driven KRB to Do____'s house that afternoon. KSB arranged for the fellow demonstrating the Peatt Road house to be paid by picking up a cheque while meeting for drinks at Bear Mountain. He had also received a call from KRB while he had his partner and two clients in the car. KRB told him that he had gone to Do____'s and that there were problems there. KSB cut him off at that point, saying that he was in the middle of something and could he talk to him about it later. On cross-examination, KSB said that he assumed that Do____ had been too high again to talk to.

31     Around 5:00 p.m. that day, KSB met up with his wife at the pub at Bear Mountain. KSB testified that KRB was with her, along with the man who was there to pick up the cheque. Although KSB knew that it was in breach of KRB's bail order to be in licensed premises, he testified that he did not think of it at the time, but also thought that it was up to KRB to follow the orders or to turn himself in and that it was not up to him to police his son. He testified that he had talked to the RCMP who had told him that they would take control of the situation. He said that things had been going better with KRB, that he was clean, and seeing his daughter. The server, who knew KSB and his wife, remembered that KSB and another man joined Mrs. B_____. She said that KSB had two glasses of wine and the other man had two beers, along with appetizers. She described the atmosphere as calm, relaxed, and casual. The server said that they were there about an hour and a half before KSB and the other man left around 6:15 to 6:20. KSB testified that he left with KRB and planned to attend at Do____'s to deal with the insurance matter and pick up some tools before going to friends for the evening. He expected to be with friends for the evening within 45 minutes. He was already late to the friends; not uncommon, according to him.

32     KSB testified that he was annoyed with KRB because he had involved his mother in going to Do____'s crack house that afternoon, contrary to the family rules, and when he had already made arrangements for him to take him back there later. KRB replied that he knew that his father had been running late and thought that he could get the matter out of the way. KSB asked what had been the problem. KRB replied that he never did see Do____ but had gone into a room and that "some guy got up in his face ... about money that he'd owed him and that the family owed him and he wanted money for spending time in jail ... and ... he lost all his dope business". KSB said that KRB told him that the guy wanted $100,000 and, when KRB told him that he did not have any money, the guy told him that his father had money and to get him and his brother and bring them back to "finish this thing". In cross-examination, KSB said that KRB identified the person only as "Keith" and that he did not know and did not make the connection that it was the "Keith" with whom GB had a problem before. KSB said that KRB described the guy as a "nut ball" and said that he probably would not be there anyways. KSB didn't know if this was real or just "crack talk", but he asked KRB if he or GB owed him any money. KRB was unsure whether GB did, but he did not. KSB denied in cross-examination that KRB told him that "Keith" had threatened him with a gun or that violence could be expected if the debt was not paid. KSB told KRB that if "Keith" was at B___ Place where they were going to deal with the insurance matter, he would talk to him.

33     KSB testified that, although he considered all of this just "crack talk", he wanted to keep KRB on track now that he was doing better and hoped that he would be well enough soon to turn himself in. KSB decided to find GB and bring him to talk about this matter, what was going on with him, and what had happened with their plan. He denied that he did so because he perceived a threat associated with the debt. He insisted throughout extensive cross-examination that his purpose in getting GB was to talk about getting clean and turning himself in and then to find out whether he owed anybody any money. KSB also insisted that he was going to B___ Place primarily to deal with the insurance matter, but would talk to the guy about the debt if he was there. He denied that he was going to B___ Place to deal by force with "this Keith guy" who had threatened his family, saying that if "Keith" was there, he was going to talk to him and repeating that he was not aware of any threat.

34     KSB contacted an old girlfriend of GB's and asked her to contact GB to say that his father was looking for him. Within a minute, GB phoned back and KSB asked to meet up. GB was at a nearby pub and KSB and KRB met him outside. GB got into the truck and the three B_____s drove off towards B___ Place. KSB testified that GB did not know where they were going. This was in violation of an outstanding bail order prohibiting KRB from having any contact with GB. KSB knew that there were warrants out for the arrest of both KRB and GB.

35     KSB testified that he was angry with GB, who appeared high on drugs, unwell as though he had been on a binge, and thin at about 180 pounds. KSB ranted at him for not following the plan and not turning himself in. He then asked about whether he owed a "Keith guy any money". GB responded that the guy was "a fucking asshole" and that GB did not owe him any money. In cross-examination, KSB said that he did not tell GB that the "Keith guy" had told KRB that he had done time in jail and wanted money for that. He was obtuse at first about whether he knew that GB had given a statement to police about someone named Keith ordering an assault on GB, but finally conceded that he knew that. He said, however, that he did not put it together at the time that this was the same "Keith". He testified that he had no expectation of violence. KSB said that GB became more agitated and the situation was going awry, characteristic of the relationship between this father and this son. The three B_____s arrived at # B___ Place together in KSB's truck.

36     F___ said that he arrived at the B___ Place house with Pa___ around 4 or 5 o'clock to get his phone which he thought A____ had. He and Pa___ had been doing "hoots" of crack at Pa___'s house. They parked Pa___'s red Jimmy vehicle in the parking area to the left of the driveway of B___ Place as observed from the house. Do____ answered the door and told him it was not a good time. Do____ told F___ to wait, something unusual to F___, who had been at the house numerous times, and he wondered what was going on. There was loud music and people going back and forth. T___ appeared and gave F___ his phone, unexpected because F___ did not know T___. T___ asked if he was F___ and whether he wanted to do a hoot. F___ went into bedroom #2 with A____, O____ and T___. D_____ passed as they went in and vouched for F___, telling T___ that he was all right. In the meantime, Pa___ bought more crack cocaine from A____ and went up to the top floor dining room area to smoke it.

37     F___ testified that T___ and A____ had a conversation at that point about the local drug trade, whether F___ hung out with the B_____s, and what side of the fence he was on. F___ assured them that he was on no side. O____ was in the room. F___ felt tense and uncomfortable, so he had some crack cocaine and calmed down. He said that everyone in the room was smoking crack with their own pipes, including T___ and O____. A____ said that he was smoking crack at the rate of one hoot every 30 to 60 minutes. A____ told T___ that F___ had helped him out one time and F___ said that he was not there to cause problems. He thought that T___ and A____ wanted to make sure that he was not there to cut their business. F___ described the scene in the room as a "gong show" until tension eased. F___ said that they all went into the family room, along with others, and they all continued to smoke crack. F___ said that it turned into a "dope fest". T___ told him that he had been "up for five days", since he "got out". There was talk of T___ "taking over ... starting up", they were going to get houses going, and T___ wanted to know if F___ would get in his way. F___ described that T___ was really agitated, with his head twisting back and forth. After awhile, T___ said that he wanted to talk to F___ alone and they went into the master bedroom.

38     F___ said that he and T___ "did a hoot". T___ told him that he was going to take over the cocaine trade in the Langford area. He offered F___ a piece of it. T___ then asked whether F___ knew that T___ had a problem with the B_____s. F___ said that he did not know and did not want to know, to which T___ responded that he should know because there could be repercussions. T___ told F___ that he was getting $100,000, which he had asked for that morning, that he was waiting for a phone call, and that if he did not get it, he was going to take care of it and did not want F___ involved. F___ said that T___ said that he was coming into cash and it was payback time. F___ said that T___ was "sketched out". Although F___ thought it farfetched and unreal for T___ to ask for the money, he knew that T___ believed it and was trying to impress him. F___ concluded that T___ was "trying to come up in the game". F___ testified that at this moment, a female yelled out: "The B_____s are here".

39     Do____ said that he returned to the top floor and continued smoking crack cocaine with Pa___. On his way, he said that he saw O____ and D____ in the second floor family room. This is unlikely as Mc_____ said that he and D____ were alone in that room all day with the door locked engaged intimately and smoking crack. Do____ said that he also saw T___ in the second bedroom with F___, Kevin Laird, Mc_____ and F___. They were talking. O____ was going in and out.

    • (b)  B_____s' Arrival at B___ Place

40     D_____ said that she was in bedroom #2 with O____ and F___ when she saw a vehicle which she thought belonged to the B_____s pull into the bottom of the driveway. D_____ said that their arrival was unexpected. However, O____ said that she had gone to watch for the B_____s after the meeting between KRB and T___ earlier that day specifically at T___'s behest because he was expecting the B_____s to come back to the house, although she had also testified at the preliminary that she went to the room to be alone. Nobody else was there when she saw the vehicle pull up. A____ said that he was smoking crack with O____ when the truck showed up. R____ testified that, about an hour and a half after KRB had left, he became aware through conversation and a phone call that the B_____s were expected to come to the house. R____ was apprehensive because of the earlier scene with the gun. He said that he was also in the room and saw the truck pull up.

41     D_____ yelled: "The B_____s are here". D_____ yelled because she figured that T___ would want to know that they were there. D_____ said that O____ went running from the room to tell T___ that they were there. O____ said that she immediately yelled to let everyone, particularly T___, know that the B_____s had arrived, but said that she did not go to T___ to tell him.

42     From most accounts, and to use the vernacular, all hell broke loose at that point. F___ said that T___ flew out of the room saying: "Where's the gun? I'll show him. Nobody's going to fuck with me. It's payback time". F___ agreed that T___ was freaking out, speaking in half sentences, yelling at the girls to open the door, and yelling: "Nobody's fucking around here, it's my pad". T___'s mind appeared to be jumping all over. F___ said that T___ appeared to "go bonkers", he was "right off the wall". He had just smoked a lot of cocaine. T___ went towards the back door of the house that leads to the backyard. Mc_____ also saw T___ go into the backyard, describing him as in a rush, bouncing around, all over the place and then straight through the back door. D_____ also saw T___ go into the backyard.

43     People at the house went into a panic and started running about. There was chaos, commotion, people running in all directions, and confusion. Do____ said that he went downstairs to the family room, looked out, saw a truck pull up to the bottom of the driveway, and went back upstairs. He said that he was stressed out, had been smoking cocaine right up to this point, and thought there might be a problem. He mistakenly thought that the truck was the same one driven by KRB's mother earlier in the day, a white Cadillac Escalade. D_____ ran upstairs with a dog, and then back down again to the bedroom, and then to the back door of the second level. She said that it was very chaotic with people in a panic, yelling and screaming. Mc_____ said that people were freaking out, panicking, and running around. He thought that there might be a police raid. O____ said that everyone scattered.

44     KSB's black Ford F350 truck was parked at the bottom of the driveway, facing across the driveway in the wrong direction. This was not unusual. The red Jimmy belonging to Pa___ was also parked near the bottom of the driveway and another car was in an adjacent parking area directly in front of # B___ Place.

45     D_____ saw KSB and KRB exit the vehicle. According to anyone who observed them, they calmly walked up the driveway. GB remained at the truck at the bottom of the driveway. D_____ saw nothing in KSB's or KRB's hands. R____ said in direct examination that he saw GB standing ten to twenty feet from the truck on the driveway. In cross-examination, he confirmed his preliminary testimony that he saw GB near the truck talking with KSB. A____ could not remember what he saw until he refreshed his memory from the preliminary transcript. Then he said that he saw KSB get out of the driver's side, GB get out of the back, and KRB get out of the front passenger seat. A____ said that KSB and KRB calmly walked up the driveway with nothing in their hands. GB remained at the truck. F___ said at first that he heard a knock at the front door and then a voice saying words to the effect of: "I want to talk, where is he, I want to talk to him". He agreed in cross-examination that he heard the words later, in the backyard. O____ said that all three got out of the truck and KSB and KRB started coming up the driveway. GB stayed at the bottom of the driveway and said something about T___ having gone out the back.

    • (c)  The Confrontation and Fight
      • (i)  Evidence of KSB

46     KSB testified that he told GB to stay in the truck. He did not think that GB needed to go in or would be any help in his agitated, drugged state. KSB and KRB got out of the truck. KSB testified under cross-examination that he did not see GB get out of the truck. He denied that he expected trouble and that he left GB there as backup. KSB said that they walked to the front door and he knocked. The front door is on the ground level of the three storey house and leads immediately upstairs to the living quarters. When there was no answer, KSB said that he went through the carport towards the back door, which he had used on visits before and knew to be on the floor where most people were. He denied that he went to the back to catch T___ by surprise. He said that he did not hear any noise coming from the house or hear any shouts from GB. The carport was filled with junk, leaving only a trail to walk through. KSB headed up the stairs at the back of the carport towards the backyard and back door of the house, ahead of KRB.

47     KSB testified about what happened next. He was three steps from the top of the fifteen steps of stairs when he noticed someone pointing a gun at him from an elevated position behind a fence. KSB said that the man, now known to be T___, popped up from behind the fence and he and T___ met eye to eye. KSB exclaimed "holy crap" and got up the few steps to the nearest cover, underneath the balcony where there was a post, some bookcases and garbage cans standing in the backyard between the fence where he first saw the gunman and him. KSB denied that he saw or heard T___ before this. KSB was not sure where KRB was, but guessed that he didn't make it up the stairs. In cross-examination, KSB denied that he was angry at this point but was scared. KSB said that the gunman then started going back and forth along the fence, about 8 to 10 feet away, pointing the gun back and forth at his head, then at KRB whilst swearing and screaming gibberish of isolated words and unfinished sentences. He was saying half words, "I'm going to", "Where's my money", "I'm going to kill you", "Where's that", "Fuck you, you fuckers", "Fuck off", "I've got to", "Where's my muh". He was swearing at KRB to "fuck off". He was racing towards KRB and then at KSB, pointing the gun. KSB said that the man appeared extremely agitated, physically very upset, out of control, freaking out. KSB testified that he thought that if he moved from that spot, "he'd have shot me dead". He said that he was scared to death.

48     KSB said that he tried to calm the situation down and said: "Hold it here, hold it ... I thought you wanted to talk to us ... I'm here to talk to you ... I'm here. Let's talk. Just put the gun down and I'll ... talk to you". He said that T___ just continued: "Fucking, I want my...you guys fucking owe". He charged towards KRB and made a motion as to fire the gun and KSB said "Hold it, hold it ... you don't need to do any of that ... we don't need any of this". KSB said that he did not know what to do. He heard someone from the house say either "he's got a gun" or "I've got a gun" and he saw someone behind him with something in his hands. KRB disappeared from KSB's vision. KSB did not know what had happened to him, but thought that he could have been shot even though he did not hear a gunshot. KSB said that he jumped out with his hands held high, saying: "Hold it. We don't need any of this. Don't do any of this. I'm here to talk to you. I thought that you wanted to talk business". KSB said that there was a guy behind him and another in front with a gun. KSB repeated that he did not know what to do, that he stood out there with his hands in the air, trying to stop this. Neither KRB nor GB was there.

49     KSB testified that the gunman then stormed around the fence and pointed the gun right at KSB, saying: "You fucker. I'm going to kill you. You fucking ... I want my money right ...". Then, he ran up within 3 feet of KSB and tried to pull the trigger of the gun right in KSB's face. KSB testified that he thought that it was over right there. He said that he thought that he was dead. But, T___ dropped his hands and KSB thought that he was trying to exit the bullet or try to get a cartridge in and re-cock the gun. When T___ started to raise his arm again, KSB testified that he slapped at the gun and rammed T___ with an elbow to the face as hard as he could to save his life. As T___ stumbled back, KSB grabbed at him in the same motion, took 2 or 3 steps forward, and "pile drive[d] him into the ground as hard as [he] could", hoping to knock the wind out of T___. They landed near a sawhorse in the backyard.

50     KSB testified that there then ensued a major fight for the gun. KSB was on top of T___, who was on his back holding the gun and trying to get it pointed at KSB. KSB said that he got hold of his right arm and brought punches and blows to T___'s face as he told him to let go of the gun. KSB said that T___ was strong and all over the place, arching up, pushing, spinning around onto his front while not letting go of the gun. KSB got hold of his wrist again and hooked his arm around his neck, putting on "half a choke". T___ was screaming: "I'm going to fucking kill you". KSB tried to smack the gun from his hand while saying: "Let go of the gun". KSB pounded at the back of T___'s head with his elbow and was punching. KSB hooked back under T___'s neck to stay on top and T___ said: "Get him off me". KSB said that they were still wrestling on the ground when someone hopped onto his back and ran into his head, while T___ was pushing both of them up. KSB described that he was just trying to hang on, he didn't know what would happen. Then, someone was on his back again and then his arm got stomped. KSB said that he looked up to see a man and a foot come down the side of his face, smashing right into T___ on the back of his head. He testified that he now knows that this was A____. He denied in cross-examination that KRB and GB were there at this time and that it was them who were stomping on T___. Then, KSB said that a light haired woman was on his back, clawing at his neck and face with an arm around his neck. The other person was hanging on his left, caught in the heaving and moving. The man stomped again, landing on T___ again. KSB said that he just remembered trying to hang on with a half choke on T___. Then, GB showed up, at least he thought that it was GB from his voice saying: "What do I do? What do I do?" KSB said: "Just get the gun". He saw GB punch at the hand and then punch T___ in the face. KSB said that T___ was screaming, insane, freaking out, and they could not get the gun away. Then, GB got hold of T___'s wrist, KSB let go of the wrist, KSB got a hold of the arm that he held around T___'s neck, and squeezed as hard as he could. T___ passed out. When he went limp, KSB rolled away from him. KSB testified that he did not see KRB throughout all of this.

51     KSB testified that he rolled back towards the back of the house gasping for air and got up on one knee. He said that he was totally exhausted. He got to his feet to stand straight to get air and stepped back from "this lunatic" near the fence. KSB said that he had not even lifted his head up yet and "this lunatic's coming right at [him] again". KSB had said nothing as he tried to catch his breath and did not know where GB was. KSB thought that T___ was going to tackle him down and he had something in his hands. KSB did not know what it was, whether it was a gun or something else. As T___ came at him, KSB said that he side-stepped back in an old rugby move and slapped him on the back of the head. T___ went right through past him and as KSB jumped on him with all his weight, they slammed into the concrete wall, with T___ taking the force of the fall. At this point, there ensued a scramble for a knife that KSB said T___ held in his hand.

52     KSB testified that he could see the knife, not all the way open, in T___'s hand and he went for his wrist. T___ was trying to get the knife open and KSB was trying to knock it out of his hand. It was another struggle as KSB pounded down on T___, whose face was against the cement. KSB said that he delivered 2, 3, 4 heavy blows, but he couldn't get the knife and was not as strong and was winded. KSB told him to stop but he wouldn't and KSB told him "That's it. You're going to the cop shop". KSB said that T___ just went nuts, he was unstoppable, grunting and groaning "I'm going to kill you, mother". KSB testified that he thought that T___, with the knife in his hand, was going to kill him. T___ started to pull himself and KSB up the doorframe. KSB said that he was exhausted and did not know what more to do. He grabbed hold of T___'s neck and they spun around as KSB held him in a choke. T___ was "frantically" kicking, punching and pushing off the fence. They smashed into the house while KSB held onto him and choked him as hard as he could at that point. KSB hung on and they were 2 stairs down the staircase towards the carport when T___ went limp and KSB pushed him straight down the stairs with whatever energy that he had left. KSB testified that he was just trying to survive. KSB stumbled as GB came up to him asking if he was all right. This was the first that KSB was aware of either of the boys during this part of the fight. KSB said that he told GB to just get him out of there and they started down the staircase.

53     KSB denied in cross-examination that he was angry after T___ pointed a gun at KRB and so he "beat the shit out of him". He agreed that there was a fierce fight for his life, that he delivered blows, and that he did not take the same blows as T___. He said that he did what he could to survive.

54     T___ was at the bottom of the stairs and made a gurgling sound. GB said: "He shit himself". KSB testified that it did not sound good. KSB testified that he thought T___ was badly injured, but not killed. He planned to take T___ to the police station to get looked at. In cross-examination, he said that he thought that this out-of-control person should be in the hands of the police. KSB said that he and GB struggled to get T___ through the messy carport and then KRB helped to bring him over the foot high cement lip where the driveway and carport met. As KRB grabbed hold of T___, his shirt ripped off and T___ went rolling down the steep driveway. About halfway down the driveway, KSB said that he was exhausted and needed to stop for air. He and GB then picked T___ up by the arms to walk him to the truck but KSB fell, losing hold of T___. GB pulled T___ towards the truck, getting entangled in a white cable that lay alongside the driveway. At some point, one of the sons said to tie him up, but KSB testified that this did not happen. KSB said that it was chaotic with screaming and hollering everywhere. KSB then came back to help and they managed to put T___ in the rear passenger area of the truck.

55     KSB said that he drove at the speed limit directly to the police station, a distance of 3.7 kilometres, as soon as he could because he "had no idea when this guy was going to come to again". KSB testified that it was chaotic in the truck with GB "freaking out" in the back, crying "What just happened? What are we doing?" KRB put the gun on the front bench of the truck and KSB put it in his pocket. KSB did not know how he got it. Near the police station, while stopped at a red light, both sons jumped from the truck, leaving KSB on his own. KSB arrived at the police station and buzzed at the intercom to get someone to come out.

      • (ii)  Evidence of D_____

56     Piecing together D_____'s evidence after she yelled "The B_____s are here", she recounted that she first went to get T___'s dog and ran upstairs. She then ran downstairs and looked into the backyard from the back door of the house. She then saw T___ to her left near a picket fence in the backyard. D_____ acknowledged in cross-examination that she may not have heard the initial conversation. KSB and KRB came through the carport to the backyard. D_____ said that T___ was running back and forth, pointing and yelling at KRB to "Get the fuck out of here. You're not welcome here". She described him as intense. KRB stood still. KSB came up the stairs to the top and told T___ that he was there to talk business, that he thought that T___ wanted to talk to him. D_____ said that KSB was calm in demeanour with his hands up in the air, demonstrating as if someone were at a holdup. T___ was still pointing towards KRB and screaming to get off the property. KSB passed D_____. T___ was moving about. D_____ said at first that she did not see a gun in T___'s hands. However, she agreed in cross-examination that she did not know if he had anything in his hands and could not say that he did not. It happened very fast and it was chaotic.

57     D_____ said that KRB had stopped midway up the stairs. D_____ said that after KSB said that he wanted to talk business, T___ put his guard down and came towards KSB. That was when KSB hit T___ and they both fell onto the dirt. D_____ could not see T___ when KSB threw the first punch. KSB fell on top of T___ and continued to hit T___ with both hands. D_____ said that she started yelling, was hysterical. She said that KRB was standing next to his father. She said at first that "if [she] remembered correctly", GB was standing to the right of his father. This was the first time that she had seen GB that day. She said at first that "if [she] remembered correctly", KRB and GB were standing on either side of their father and kicking T___. However, she could not be certain that any kicks landed. In cross-examination, she said that she did not directly see either KRB or GB kick or punch T___. She agreed with her preliminary testimony and said that it was true that she was not sure if they were kicking or punching T___ and did not see either strike T___ in any way. She did not see either KRB or GB make contact with T___. She did not remember seeing T___ fight back. D_____ said that she turned and ran back into the house at that point, screaming: "Someone help him, please help him".

58     D_____ said that she ran out of the house again towards KSB and tried to help T___. In cross-examination, she said that she thought that this was when she first saw GB to the right of his father. Her intention was to jump on KSB's back and, although she had only a vague memory of doing so at first, she had acknowledged that she did so by the end of her cross-examination. She agreed that she was so hysterical and frantic that she may have tried to jump on KSB's back three or four times. She did not see a gun but agreed that she would have been concerned for KSB if T___ had a gun. She testified that she was right before where KSB and T___ were on the ground when KRB came to her and put a gun to her face and told her to back off. She remembered "totally being removed by a gun in my face". She agreed that GB told her: "Please Devon stay out, get out of the way". In retrospect, she agreed that he did not want her to get hurt. D_____ said that KRB kicked her in the mouth and then GB kicked her from behind and she flew into the doorframe of the house. In cross-examination, she agreed that she may have been pushed out of the way after being implored to get out of the way. She agreed that GB was quite possibly in a panic like everyone else. D_____ was 5 feet, 1 inch, weighing 110 pounds.

59     D_____ said that she ran back into the house and heard GB "groaning, grunting", saying: "Tie him up, put his hands behind his back". D_____ continued to run upstairs to the top floor balcony. She saw A____, D____ and Mc_____ outside near a trampoline as she continued to yell for someone to help T___. D_____ ran back downstairs to bedroom #2. She said that O____ was there as well.

60     D_____ said that she looked out and could see KRB, KSB, GB and T___ on the driveway. She said that they tied T___'s arms and legs behind his back. There was no movement from T___ whose face was black and blue and bloody with his eyes swollen shut. D_____ was still yelling for someone to help him. Then, D_____ heard the truck drive away. F___ came into the room and started to smoke more crack. Although D_____ denied that she also smoked crack then, previous statements suggest otherwise, and it is most probable that she continued smoking crack cocaine with F___ immediately after the B_____s and T___ left. About then, the police arrived and D_____ opened the door to them. She was observed by police to have a fat upper lip with some blood on it. D_____ said that it had all happened very quickly.

      • (iii)  Evidence of Do____

61     According to Do____, it was only a few minutes after the truck arrived that he heard a crashing sound and then D_____ scream: "My God, someone help him". He said that he saw D_____ on the second floor near the bathroom. Do____ was "panic stricken". He said that he went to D_____ on the second floor where she had fallen in the hallway. O____ was also in the hallway. In direct examination, Do____ said that he looked out the back door near bedroom #1. He said that he saw GB in the backyard, yelling something to someone. Do____ said that he then ran back upstairs. He agreed that the crack cocaine made it difficult to remember what had happened. Do____ described D_____ as hysterical, screaming, crying and yelling: "My God, someone please help him". She was still in that state, on the floor outside the bathroom in the hallway, when Do____ passed her again as he ran between floors. Do____ looked over the top deck down below to the backyard for a few seconds. He said that he saw GB in the backyard. He was yelling, upset, screaming at someone, but Do____ did not remember what he said, it happened so quickly. He did not observe anything in GB's hands. Do____ did not see anyone else in the backyard. In cross-examination, it was apparent that Do____ saw GB only once. It is most probable that Do____ only saw GB at this time, for a split second, when overlooking from the upper deck. Do____ decided to get out of there. He ran downstairs again, out of the house and down the driveway. He saw A____ in the driveway of his neighbour's house. Do____ then left the scene to go to another house to smoke more crack cocaine.

      • (iv)  Evidence of F___

62     F___ said that he ran upstairs to the balcony, calling for Pa___ to leave. He realized there was no exit off the balcony. He thought that he saw GB near the bottom of the stairs that come up along the house to the backyard, but was not certain. F___ said that he "felt like shit" when he saw GB because he was afraid that GB would think that he was going behind his back. F___ went back into the house. He said that the girls were yelling and the whole house was "going bonkers".

63     F___ went back outside. He heard words to the effect of "I want to talk, where is he, I want to talk to him" while he looked into the backyard, but the sequence of when he heard these words was not established. F___ saw T___ holding a gun to KRB. He held it in the shooting position. F___ went back inside looking for Pa___ to get out of there and then went back outside again. He saw KRB standing about three or four feet from a fence on the side of the garage near the entrance to the carport in the backyard. The fence was between KRB and T___. T___, about four feet further from the fence, was pointing the gun with his right hand at KRB and pointing it around. T___ was saying: "Don't move, don't move" and "get out of here, I'm not talking to you" and "fuck [this]" and "fuck [that]". His sentences were incoherent. KSB said: "Put the gun down. I'm not talking to you with a gun. Put down the gun. I'm not talking to you while you're holding a gun at my kid". T___ replied: "Fuck that". F___ testified that KSB's voice was calm and pleading. KRB remained standing still and said: "I'm not going anywhere. I'm not going anywhere". F___ testified that T___ "freaked out then" and was moving, pointing the gun back and forth. He said: "I'll do what I fucking have to do". F___ described T___ as "right out of it". He thought that T___ was going to shoot KRB. F___ could not see KSB. F___ then went back into the house where everyone was "freaking out". Some had jumped over the balcony. Things were moving really fast. Then, F___ heard: "Get the gun". He saw T___ raise the gun.

64     F___ went back in, heard screaming "help him, help him", turned, and saw T___ on his back in the dirt in the backyard and the back of someone on top of T___. T___ held the gun in his right hand. The person on top of T___ was holding T___'s forearm or wrist that held the gun and it was shaking. T___'s left hand was not visible but his head was "popping out". T___ was yelling: "Get him off of me". There was a violent struggle. Someone said: "Get the gun". A woman from behind was screaming: "Help him, help him". F___ said that T___ looked like a man on a mission and was trying to get back control. There was nobody standing beside T___ and the man on top of him whom F___ assumed was KSB. F___ said that it was "not his beef" and turned around. It was all very fast. He had observed for 15-20 seconds. When F___ turned away, T___ still had the gun in his hand.

65     F___ ran out of the front door to the side of the neighbour's house. He saw others running away from the house, over the balcony and through the bushes at the back of the house. F___ went back into the house to get Pa___, his ride. He heard sirens and went back into the house to smoke more crack cocaine with Pa___ and D_____. He was arrested by police.

      • (v)  Evidence of Pa___

66     Pa___ had just finished smoking crack cocaine in the upstairs of the house when he heard a male voice yelling: "Where's the gun?" Everyone scattered around. Pa___ just stood there, alarmed. He did not know what was going on. He said that he stood around "like a dummy" and then went downstairs, seeing D_____ on the way upstairs saying: "Someone help him". He went into one of the downstairs rooms, closed the door, sat on the couch, and smoked more crack cocaine. He heard some thumping, two or three times, as though someone had hit the wall, but could not discern whether it came from inside or outside. Next thing, he looked out the window and saw police cars. He threw his crack pipe away and went upstairs where F___ was. He came out when the police called out and he was taken into custody.

      • (vi)  Evidence of R____

67     R____ had gone into a closet in the room that he was in immediately after he saw the B_____s' truck and GB in the driveway. There was a woman with him in the closet. He wanted nothing to do with whatever was to happen. He heard chaos, people yelling and screaming. He stayed there until all was quiet again. He came out and went to the front door where A____ was standing. He said that people were still running around. R____ heard sirens and ran out the back door with A____ and O____. R____ said that there was stuff all over the ground near the back door, including blood, money, change, a knife, and a black folder. O____ picked them up, saying that she was going to pick up T___'s belongings. The knife that she picked up was one that T___ was known to usually carry on him. It had a retractable blade which was not fully closed. The three ran into the bushes, up the back embankment, where they hid for over an hour, smoking crack cocaine. They eventually called a cab and left the area.

      • (vii)  Evidence of A____

68     A____ remembered seeing the truck pull up to the driveway and then everyone scattered. At first, he said that he did not remember too much after that. However, after refreshing his memory by reading the whole of his preliminary transcript in a room with two police officers over lunch, he said that he saw the three B_____s get out of the truck and proceed up the driveway. T___ ran into the backyard. A____ said that he went to the back of the house to help T___. He stood at the back door of the house and saw KRB in the bushes in the backyard. His evidence was confused about exactly where he saw KSB. He said that KSB walked upstairs to where T___ was standing and moved about twenty feet into the backyard. He also said that KSB was in the back doorway and that T___ was ten feet away from him. He said that KSB walked out into the yard to the edge of the fence. T___ was near the picket fence in the backyard, shouting words that A____ did not recall. He said that T___ had a gun but that it was pointed at the ground and T___'s hands were on the picket fence. A____ described T___ as agitated, panicking, not knowing what to do. He said that T___ had smoked crack cocaine that day but was "under control ... not hallucinating or anything."

69     He said that T___ walked towards KSB with his hands at his side and the gun pointing down. However, in cross-examination after his preliminary testimony was put to him, he admitted that T___ raised his hands to his sides with the gun in his hand while face to face with KSB. KSB said: "Let's talk". KSB's hands were by his side, in his pockets. A____ said that KSB then moved towards T___ and hit him with a closed fist in the face. T___ fell onto his back. KSB was on top of him and hit him a few more times. A____ said that he did not see the gun in T___'s hand and did not hear words, "get the gun". A____ denied that he stomped KSB's hand but said that he went to help T___ but froze. A____ agreed in cross-examination that, in an earlier statement to police, he had said that at some point, D_____ and O____ were on top of KSB and had been thrown off by KRB. He did not tell about that in direct examination and said at first in cross-examination that he could not remember. However, in further questioning, he admitted to a "flickering" memory of this detail, but then reverted to failing to remember. During further cross-examination, he agreed that D_____ and O____ did jump on KSB's back but were pulled off by KRB and GB. He also said that he did not see O____ or D_____ or D____ while he was standing at the back door. He did not see KRB or GB hit or strike T___ at all.

70     A____ said that he went towards the back door and KRB chased him and hit him on the back of his head with something. He explained in cross-examination that KRB had come up behind the carport. A____ ran back into the house. As he did so, he said that he saw GB coming up the back stairs into the backyard. He thought that this was his first observation of GB since seeing him at the truck in the driveway. A____ said that GB was not near when he was hit by KRB or when KSB first hit T___. He appeared after loud screaming. However, A____ also said that GB and KRB pulled D_____ and O____ off of KSB's back. A____ went down the inside stairs towards the front door, down the driveway, and to the side of the neighbour's house. He said that he last saw KSB, KRB, and GB at the back door of the house and then saw "them" drag T___ down the back stairs. He also said that he only assumed that they dragged him down the back stairs because of something that he heard. A____ then moved to the front of the B___ Place house and said that he saw KRB, KSB and GB drag T___ down the driveway to the truck. None of them was shirtless. T___ was not moving. A____ did not see T___ get up from the ground. They threw T___ into the back door passenger side of the truck and drove off. A____ said that he heard screaming during this event but could not remember specific words except that he heard someone yell: "He shit himself".

71     A____ said that he ran into the bushes at the back of the house with O____ and R____ and hid for an hour or two, smoking crack cocaine. They then took a cab into Langford where they noticed the B_____s' truck at the police station and got out of the cab. He said that he and O____ went to Denise Newman's house nearby. KRB and GB were there briefly when the others first arrived but left quickly. A____ stayed with O____ and continued to smoke crack throughout the night of May 30. A____ said that he had last seen the bullets for the gun on the bed in bedroom #1 but knew that they had been taken. He denied that either he or O____ had taken them.

      • (viii)  Evidence of Mc_____

72     Mc_____ said that he heard a commotion and thought he heard words to the effect of "They're here". He came out of the family room and saw T___ rushing out the back door. He next saw him outside the back door in a violent fight with fists flying. T___ yelled: "You motherfuckers". T___ was standing and both were giving and taking, but then they fell to the ground, rolling and grappling on the ground. Mc_____ panicked and fled, looking for D____. As he came back out of the family room, he saw D_____ go down to the floor and he assumed that she had been pushed out of the way. He had not seen any contact. An unidentified man came inside the house a few feet with an object that Mc_____ thought was a semi-automatic gun. Mc_____ was not wearing his glasses. D____ was screaming, Mc_____ had just had a hit of crack, and it was chaotic. Within seconds, Mc_____ took a swing at the man with a golf club and managed to direct D____ out through the stairs going down while he went up the stairs and out the upper floor balcony. He saw A____ in the back treed area of the house. Mc_____ located D____ and the two left in his car.

      • (ix)  Evidence of O____

73     O____ said that KSB came in the back door of the house and met T___ in the hallway. No words were said before KSB struck him with his fist and dragged him down. Then, she said that KSB was on top of T___ and KRB was to the right and GB to the left about ten feet back from the back doorway in the backyard near a sawhorse. KRB said not to worry, he had the gun. O____ assumed that he was referring to T___'s gun. However, in cross-examination, she said that she never saw when KRB got the gun and did not know when this occurred in the sequence of events. She said that all three kicked and punched T___. KSB was on top of T___ and punched him in the head. KRB was pointing and waving the gun, telling people to stay back and was punching and kicking T___ from the right. O____ said that she saw GB kick a couple of times from the left. She could not see where KRB and GB were kicking T___ because he was underneath KSB. In cross-examination, she said at first that she saw GB kicking and KRB punching T___. She could not remember and then denied that anyone said "where's the gun", although she had testified to that at the preliminary inquiry.

74     O____ said that she next came out the back door and saw A____ sitting on the ground with a "goose egg" on his head, trying to get up. She did not see what caused A____ to be on the ground. She ran and jumped on KSB's back. She said that she would have done anything to stop KSB and protect T___, including plunge her knife in KSB's back if she had been carrying it that day. She acknowledged that she did this even though KRB waved the gun and told people to stand back. She said that T___ was completely unconscious. KRB punched her in the face with his fist. She fell off KSB's back and staggered back towards the house. KRB hit her a few more times, on the back of the neck and the knee. O____ said that she saw D_____ outside the back door, bleeding from the mouth and O____ assumed that she had been kicked. She saw Mc_____ standing there with a golf club.

75     O____ went back into the house to look for the dog in the master bathroom and was there for four to five minutes. This bathroom is along the outer back wall near the carport and the back stairs leading to the driveway. She said that she heard scuffling along the back wall and thought that T___ had hit the wall. She agreed that it was obvious that the struggle continued below the bathroom window. She heard GB say: "Oh my God, look, he shit himself". She assumed that they were going down the back stairs. She also heard a sick, gurgling sound come from T___.

76     O____ said that when she came out of the master bathroom towards the back door, she saw KRB in bedroom #1 riffling through drawers with the gun still in his hand. She went to the balcony on the upper level and saw GB, KSB, and T___. She said that they had thrown T___ face first onto some plywood on the driveway and were tying his hands and feet behind his back. Then, they picked him up and carried him headfirst down the driveway towards the truck. T___ was not moving. She said that KSB and GB put T___ inside the passenger side door. She did not see KRB again after the scene in bedroom #1. O____ went to the bottom of the driveway and met up with some others.

77     O____ went into the bush behind the house with A____ and R____ through the carport. She saw T___'s bloodied shirt in the driveway and threw it into the carport area where it was found later by police, badly torn. She said that she saw a silver piece on the ground outside the back door and picked it up. She denied that she picked anything else up and could not recall why she picked up the piece of silver. She stayed with A____ and R____ in the bushes for two and a half hours, smoking crack. During this time, she observed police at the house but did not approach them to tell them about T___ or report that he had been injured and taken away in the truck. They called a cab and stopped at the liquor store before she saw KSB's truck at the police station. They got out at the Boston Pizza and she saw T___ lying on the ground outside the station. O____ started yelling and screaming, but did not go to T___'s aid. Instead, she and A____ hurried away to Denise Newman's house nearby. As they approached the house, Newman came out and told them not to come in. Newman then explained that both B_____s, meaning KRB and GB, were there. O____ proceeded to go inside where they were and said: "Whichever one hit me, you hit like a girl. A year ago, I would have done the same for either of you two", meaning defend T___. She testified that she said this even though it had been KRB who had hit her. O____ said that GB was sick, throwing up but otherwise calm. She said both appeared to be in shock. She said that both were wearing different clothes. She said that GB took her cell phone because he was afraid that she would call police but gave it back when GB's girlfriend showed up in a car, and they left. O____ stayed at Newman's house, smoking crack cocaine with A____.

      • (x)  Evidence of D____

78     By admission, it is accepted that D____ observed KSB on top of T___ while D_____, O____ and KRB were also in the backyard. She observed GB coming up the back stairs from the carport into the backyard and, from her position on the balcony, dropped a glass planter in his direction, just missing his head. He swore at her and continued up the stairs.

      • (xi)  Evidence of P____

79     A neighbour of Do____'s, Dan P____, who lives across the street said that he was enjoying a Friday evening drink with his wife on his patio when he heard a lot of yelling and screaming coming from Do____'s house with noises as if furniture was being thrown around. He heard swearing and screaming with male and female voices yelling: "What the fuck are you doing here", "Fuck off" and "Get the fuck out of here", and other incoherent things. He said that things went berserk, that it was a real uproar. He went to get a better look and heard a woman yell, "They're killing him, they're killing him", whilst loud scuffling noises were going on. He said that it was alarming and confusing. He said that there was a loud noise as if someone had thrown something against the wall, and then his wife immediately called 911. This was about two minutes since the commotion had started. He said that after the loud noise, people started to spill out of the house in a real panic, running onto the street and back up the hill at the back of the house. Next, the neighbour saw three men drag a fourth down the driveway. Two had the fourth man by the biceps, face down with his legs and ankles dragging on the ground. Both the younger man dragging on the left and the man being dragged had no shirt on. The neighbour said that they threw him to the ground and the older man on the right swatted him and straddled his back, calling for a rope to tie him. The older man then got up and moved aside: the neighbour thought he was looking for a rope. Just then, the person being dragged staggered up to the lower end of the driveway. The younger man dragging without the shirt on came from the lower end of the driveway and picked him up and then threw him down near the truck. The fellow without the shirt then threw the man into the back of the crew cab of the truck. The three others then got into the truck and left the scene, the older fellow driving. The police arrived shortly thereafter. The neighbour did not say that the man had been "dragged" down the driveway in his statement to police, but had only said that the three men came out onto the driveway with a fourth, that two had no shirts on, and that they threw the victim onto the driveway. It was subsequently admitted that T___ showed no observable signs of life at the time that he was taken and put into the B_____s' truck. The neighbour said that about twenty minutes had elapsed since the loud noise. A hysterical, crying woman and a man came out of the house. The view of the scene from the neighbour's house is obscured somewhat by trees and would have also been obscured by vehicles parked in or near the bottom of the driveway to Do____'s house.

      • (xii)  Evidence of the 911 Calls

80     At 6:50:48 p.m. on May 30, 2008, police received a 911 call from a neighbour, Ayla Hagreen, who lived in behind Do____, to complain of "a huge vocal fight" with "stuff breaking". From the evidence of the 911 call and the testimony of Hagreen, it appears that she heard two males yelling, "fuck you", back and forth and a woman screaming. There was the sound of wood splintering and glass breaking and she called 911, about three or four minutes after the first noises. Hagreen's husband, who was with her at the relevant time, testified that it sounded like two men posturing, arguing, but then it intensified quickly, so they called 911. He said that it was after about five minutes that his wife called and after they heard scuffling and things breaking. The caller said that they heard: "Get him off me". About 150 seconds into the call, the caller said that she "just heard someone yell 'leave him, leave him'". The caller thought that someone was hurt. Police were dispatched at 6:53:18 p.m. to a location on B___ Place. About the same time, the caller described crashing sounds. Also about this time, another neighbour, P____, called to say that some people had snuck up the back and had not dispersed.

81     Then, at 6:55:37 p.m. plus 30 seconds, the 911 caller reported that someone said: "Get the gun". Hagreen shut the door and moved into the foyer for awhile but then moved back to the window. At 6:56:21 p.m., she could hear two males and a female in the background crying and saying "Oh my God help him". She had also heard someone say: "He's hurt real bad". An ambulance was dispatched to the scene. At 6:58:11 p.m., the caller said that someone else in her house had also heard either "Where's the gun" or "Where's his gun. By 7:00:26 p.m., the first police responder had arrived at the scene. By 7:04:25, the original caller reported that she could hear nothing, "no loud commotion like before ... like glass and wood and screaming".

82     Hagreen testified that she had made notes of the event afterwards. She said in her direct evidence that close to the time that she heard "get the gun", she also heard a male voice say "drag him out here" and "tie him up". In cross-examination, she said that the latter words were muffled and not as loud as the earlier words. She at first denied that the words "Get the gun" were the last words that she heard, but later agreed with her testimony at the preliminary inquiry that the last words that she heard were "Get the gun". Her husband said that following the glass shattering and wood breaking sounds, he heard a male say either: "Tie him up" or "Tie him down", in a muffled voice, and then "Get his gun" or "Where's the gun". A female was wailing: "Oh my God, you killed him". He could not remember hearing anything else after that point. He said that the noises and voices sounded like they came from outside, he assumed at the base of the house at back.

83     At 7:01:04 p.m., 5 minutes and 3 seconds after the 911 caller had heard someone say "Get the gun", there was a voice at the intercom of the Westshore police detachment. KSB said: "I had a major altercation with a guy with a gun ... I got him in my pickup cause I beat the shit out of him". When asked if he knew who he was, KSB replied: "I don't know. First name is Keith that's all I know." When the police operator asked if it was Keith T___, KSB responded: "I have no idea". The operator told KSB that an officer would be out the front door in a minute. KSB said: "Hurry up. I don't know when this guy is gonna wake up". The operator asked "where is the gun" and KSB replied "this guy just pulled a gun on me right here".

84     According to the record of the 911 calls and of the audio of KSB's arrival at the police detachment intercom, the time from the first 911 call reporting a vocal fight with things breaking, to the time when KSB arrived at the intercom at the Westshore police detachment, was 10:00:16 minutes. The 911 call had been placed about 3-5 minutes after the first yelling had been heard. Five minutes into the call, a voice was reported to be heard to say "get the gun". From this point, it was another 5 minutes before KSB was at the police detachment intercom. The driving time from B___ Place to the detachment at normal speed is about 6 minutes, based upon Corporal Davidson's estimated driving time from the detachment to B___ Place, although it can take not less than 4 and up to 15 minutes. KSB timed the drive at 4 1/2 minutes.

    • (d)  Arrival at the Police Station

85     Another man, who was also at the police intercom at the time, testified. He said that KSB expressed concern and agitation as to when someone would be coming to assist someone in the vehicle because he was not sure when that person would wake up, and was concerned about a threat if the person woke up.

86     Corporal Brayley (Brayley), the watch commander, came out of the detachment with Constable Falconer (Falconer). KSB approached him and said there was a man in the back of his truck. Brayley said that KSB said words to the effect of: "He tried to extort $100,000 from me and I choked him out." KSB told Brayley that there had been "lots of fisticuffs", that he was the only one involved, and that he had pulled a gun on him which he had in his pocket and gave to Brayley. KSB said that he thought that his name was Keith. Falconer, who knew KSB, described him as very agitated with blood on his forearms, hands, and face. He said that KSB said: "The piece of shit that put a gun in my face, I had to choke him out several times, it was a fisticuffs, he kept coming at me, I threw him in the truck and I brought him to the detachment". Falconer said that KSB said that he thought his name was Keith, but he did not know his last name. KSB said that he had the gun and he wanted it removed. He gave it to Brayley.

87     Brayley, Falconer and KSB removed T___ from the back seat of the truck, during which time KSB was heard to say "son of a bitch" as they hauled T___ out. T___ had no shirt or shoes on. He was not tied in any way. Brayley was unable to get a pulse although the body was warm. He noticed lacerations, marks, bruising and dirt. Brayley started CPR until relieved by medics. KSB voluntarily went into the detachment with Falconer. The ambulance attendants arrived at the Westshore detachment by 7:10 p.m. Keith T___ was pronounced dead at 7:30 p.m. Hair was found grasped in his hand. There is no evidence that the knife that he usually carried was found on his person. His body was removed and placed at the hospital at 00:38 a.m. on May 31.

88     Inside the police detachment, Falconer placed KSB in an interview room and gave him the standard warnings. KSB repeated what had happened with the same information as first disclosed. He was calmer. He told Falconer that he had gone to the house to discuss that Keith was attempting to extort $100,000 from him. He was confronted with a gun by Keith and KSB had taken the gun away from him. Falconer agreed that KSB may have said that he came around a corner and that Keith put a gun in his face. KSB said that Keith had kept coming at him, it was fisticuffs, and he had to choke him out several times. KSB said several times: "I had to choke him out to control him".

89     An ambulance attendant came into the room to get information from KSB to assist in treating T___. Bradley Cameron asked KSB what had led to T___ being outside of the police detachment. He testified as to his impression of what KSB told him and not necessarily in chronological order or exact words. KSB told Cameron that there was a fierce fight with this fellow who had a gun. KSB was fearful and disarmed him. There were punches thrown. KSB described an initial grappling where KSB had choked out the patient to the point of being unconscious. There was a period of time and then he regained consciousness and again started to fight. Cameron said that he thought that it was at this time that KSB told him that he threw T___ down some stairs and said that it had to hurt. He did not move after the bottom of the stairs. But, Cameron asked if he woke up at the bottom of the stairs and KSB said that he did and that they got into another fight. KSB said that he choked him out "longer and harder", and that once he felt him go limp, he let him go. KSB said that he did not wake up after the second choking episode. KSB then put him in the truck and drove him to the RCMP station. KSB said that it was between 10 and 15 minutes between the second choking and arriving at the police station. KSB said that he must have been on drugs because of his strength and ferocity and that he just would not quit. In his notes immediately afterwards, Cameron described that KSB painted a picture of a "fierce donnybrook", meaning a fierce and prolonged fistfight. Cameron described KSB as nervous, anxious, upset, and dishevelled.

90     The gun that KSB gave police was a loaded pistol with two live rounds in the clip and one round jammed in the slide. Police found it difficult to remove the live round that was jammed and found dirt in the barrel. A police firearms expert testified that the pistol was a FN Browning model 1910 semi-automatic pistol, a prohibited firearm. Dirt particles were found in the barrel. The gun as tested was not in working order because the firing pin was broken off. This, however, was not obvious. The gun also would not have worked with the cartridge jammed into the slide. The expert said that the cartridge may have jammed when the gun was fired, provided that the pin was broken afterwards, or someone could have attempted to remove the cartridge. There was no way of knowing. The expert could not tell if the gun had been fired since it was last cleaned. Police who searched B___ Place in the area where shots were said to have been fired found no evidence at the scene indicating that the gun had been fired there.

91     KSB was arrested and placed in custody. He was examined by a police officer in the cell after he had washed up. Police observed a couple scrapes on his hands and a bloodied right elbow and forearm. This was consistent with blood found on the driver's console of KSB's truck. There were blood-like stains on his pants and shirt. KSB testified that he had bruising to his face, a "cauliflower" ear, a black eye, and bruising to his head and wrist.

92     Meanwhile, A____, O____, and R____ had taken a cab from B___ Place and arrived at the Boston Pizza near the Westshore police station. They had noticed the B_____s' truck and a commotion at the police station. R____ left the cab and went home. He has not smoked crack cocaine since.

93     An eyewitness testified that she observed the commotion near the police station and then saw a man run past her near the Boston Pizza. She said that he was covered in blood on the back of his shirt, from the back to the shoulder blades in the middle of his back. She assumed that it was blood because the colour was red. She identified this man as KRB. Another man then ran past her and the two men walked away. She said that this occurred between 6:55 and 7:07 p.m. on May 30, 2008.

    • (e) Events Pertaining to KRB and GB after the Departure from B___ Place

94     Denise Newman, a friend of GB and KRB with a nursing aide background, lived near the Westshore police detachment. On May 30, 2008, GB came running to her home, throwing up in the backyard. KRB also came into the home. Newman noticed a cut to the back of GB's hand and a small bit of blood on his tee-shirt and on his leather running shoe. She noticed dried blood on KRB's left arm but no blood on his pants, shoes or shirt. She assumed that there had been an altercation. Both were wearing shirts. KRB phoned his mother. Newman said that they then learned that T___ had died. She described both KRB and GB as shocked and upset.

95     Newman left the brothers to talk between themselves. She said that they talked about a struggle with T___, that T___ had a gun, that KRB had managed to get the gun away, that D_____ and O____ had tried to intervene and that the brothers were upset because the women could have gotten hurt and did. At another point in direct examination, when Newman was asked about the conversation between the brothers, she said that KRB said that he got the gun away and that there was more arguing between T___ and KSB which turned into a fist fight between KSB and T___. Nobody said who started what. She did not know the timing of dealings with the gun except that it was said that T___ had brought the gun out, that it was taken away by KRB and that ignited KSB's anger, and that then there was an altercation between T___ and KSB. There had been no description of the altercation. She testified that they said that KSB had put T___ into the truck and had then driven to turn the gun over. She said that they talked about KRB getting possession of the gun and that the only time that he used it was when A____ tried to jump in and KRB tried to prevent it, and that was how A____ injured the back of his head. Newman said that she learned that A____ had jumped in after the women and was "bitch slapped", hit on the side of the head, with the gun. She agreed in cross-examination that this was said by A____ later. There was then another knock at the door and A____ and O____ were at the house.

96     Newman did not let O____ and A____ in at first. She noticed a large bump on A____'s head. He was swearing and yelling. O____ and A____ eventually entered the house where KRB and GB were. O____ said: "Whoever (or whichever one) hit me, hit like a girl". Newman agreed in cross-examination that GB asked her why she had gotten involved when she knew that they were trying to get the gun off T___. Within a few minutes, the B_____s' ride showed up and they left together. Newman said that A____ and O____ stayed another twenty minutes and then left. She denied that O____ and A____ smoked crack cocaine after the B_____s left. Newman saw O____ to possess a silver chain and bracelet. She had a slightly red mark on her cheek.

    • (f)  Search of B___ Place and the Truck

97     Police searched # B___ Place. Pieces of broken heavy glass were found on several of the back stairs. Buttons from the shirt worn by T___ were found on the steps leading to the back door. The shirt itself was located thrown amongst garbage and debris in the carport of the house. It was extensively ripped along the seams and stained with blood. A police officer identified what appeared to be drag marks in the loose gravelly dirt near the end of the driveway. Footwear impressions found at the scene did not match any footwear provided by the B_____s. Baggies were found in bedroom #1, consistent with trafficking in drugs according to Constable Davidson. A torch commonly associated with drug use was also found there.

98     There were blood stains found at various places in KSB's truck. Some found on the centre driver's armrest indicated that KSB bled from the elbow or arm. Those in the back attributable to T___ were considered to be minimal, given the bleeding injuries to his head, according to Dr. Charlesworth, the pathologist who performed the autopsy. He testified that T___ was likely dead when he was placed in the rear passenger area. There were no substantial blood marks on the front passenger seat where KRB was seated.

    • (g)  Medical Evidence
      • (i)  Autopsy Evidence

99     An autopsy upon KT's body revealed that T___ died from mechanical asphyxia as a result of external compression to the neck. Dr. Charlesworth testified that T___ had fractures of the thyroid or larynx cartilage and cricoid cartilage indicative of compression from more than one direction and from one or more applications of pressure. In cross-examination, the doctor said that the trauma here was suggestive of more than one application of pressure. Dr. Charlesworth testified that pressure from an arm lock could have caused both injuries, although significantly more force is required to break the cricoid than the thyroid cartilage. He acknowledged in cross-examination that cardiac arrest may occur with even relatively slight pressure to the neck and that inadvertent death can occur from use of the arm lock, a practice abandoned for this reason by police as a means to control people. He specifically acknowledged that arm lock may cause fracture of the thyroid, as here. The application of pressure to the carotid arteries results in obstruction of blood flow to the brain, resulting in loss of consciousness within 10 to 15 seconds. It takes longer for unconsciousness to result from pressure to the airway alone, but both obstructions can occur from the application of enough pressure to obstruct the airway. If pressure is released at that point, the person usually recovers. Dr. Charlesworth said that one cartilage could be fractured and the person would not die immediately if the airway was still intact. The time required to maintain pressure that will cause death, although contentious legally, is not scientifically established. However, Dr. Charlesworth stated in his direct testimony: "So the length of time that's required to maintain the pressure afterwards to ensure that they don't recover, you know, it's not something that's well studied, so it takes longer than [10-15 seconds] and I usually suggest that it's probably 30 seconds to a minute in order to maintain that pressure, but that's ... not based on a lot of real science". This last statement would have been highly misleading if this were a jury trial and would have required admonition.

100     Dr. Charlesworth documented a large number of bruises, abrasions and lacerations on most surfaces of T___'s body, none of which caused death. These were from impact force. There were a series of abrasions on the knees, shins and ankles that could have multiple causes. There were abrasions to the chest and hips indicative of areas of impact and suggestive of movement such as dragging or something being dragged across the body or hands trying to grab, and some scratching. The left side of the chest showed less trauma. Abrasions to the back were "classic" examples for the body being dragged, moving back and forth over something rough like gravel or cement. Abrasions from the left shoulder to the buttocks showed separate areas where the body moved in two different directions, likely while the body was still alive. Abrasions to both shoulders commonly happen from being dragged by the arms. There were abrasions and contusions to the head indicative of multiple impacts or blows to the top of the head, forehead, above the eyes, and extending down the bridge of the nose and over the whole front of the face. The nose was broken. T___'s injuries to the face were common trauma from a struggle or fight. Injury to the head showed various impacts, some from striking or banging into something. There were abrasions to the backs of both hands as generally seen from a struggle or fight with the individual using his hand to impact something hard. Dr. Charlesworth said that the red mark on the right hand is commonly seen when an individual has been held by the hand and he struggles against it. There were no knife or gunshot wounds on the body.

101     There were abrasion injuries to the top of the head, near the left and right ears, and to the right neck that left patterned impressions on the head. When asked what may have caused such an injury, Dr. Charlesworth said that the pattern on the top of the head "suggests footwear", the pattern near the right ear "... [didn't] say footwear as much ...", and then in relation to the pattern on the neck said: "I think at the time I thought -- at the time of the autopsy I think I thought -- I think I thought. I believe I thought they were all potential footwear patterns, tread patterns on footwear." Constable Davidson, an expert on footwear impressions, who was present at the autopsy and who took photos of the body, said that the impressions had characteristics that led him to believe that they could very possibly be footwear impressions. However, in cross-examination, he agreed that the pattern marks could have been left by another object. He could not say whether the three different areas of impressions came from the same object. If it was a footwear impression, he could not tell whether the impressions came from the same footwear. He thought that, if it was from footwear, they did not come from the same area of the same shoe. He could not say with certainty that the impressions were from a shoe. None of the impressions matched shoes taken from the accused or others at the scene.

102     Dr. Charlesworth agreed that the injuries that he observed were consistent with someone being punched and kicked, choked out once to the point of unconsciousness, recovering, being thrown down some stairs, and then being choked out a second time until he was limp and then being dragged down a driveway. The injuries were consistent with a prolonged struggle involving trauma to the neck.

103     Toxicology reports and testing on the body of the deceased revealed a moderately high amount of cocaine in the blood, most likely indicative of frequent dosing over a short period of time, characteristic of binge use. The high concentration of benzoylecgonine in the blood was consistent with binge or repeat doses of cocaine. Urinalysis revealed that at least some of the cocaine was smoked as crack cocaine. The expert interpreted the findings to conclude that the deceased was a chronic cocaine user and used the drug in a binge fashion and repeatedly prior to death. There was also methamphetamine and amphetamine found, indicative either of a modest single dose prior to death, or a higher dose twelve or so hours before. The effect of these two drugs is to enhance the stimulus effect of the cocaine. A prescribed mood depressant and codeine was also found.

(ii) Evidence of the Effects of Cocaine Use

104     Heather Dinn, a forensic toxicologist with the RCMP, and Dr. Lohrasbe, a forensic psychiatrist, testified about the effects of cocaine upon an individual. For the most part, they agreed. Cocaine is a very potent stimulus drug. Under the influence of the drug, the body is set for action and mimics the flight or fight response. It gives a profound euphoria and sense of well-being, increased confidence, disinhibition, increased energy, and a sense of power. The person feels physically stronger in the sense that endurance and tenacity towards a specific goal are enhanced. A person engaging the user in flight or fight mode might perceive that the user has super-human strength or tenacity as a result. As a stimulant, it can also lead to feelings of anxiety, increasing the level of alertness to suspiciousness. As an addicting drug, it is not self-limiting so the user generally smokes until they are exhausted or the supply is gone.

105     Chronic cocaine users almost always have memory problems. Use affects the ability to recollect accurately because the focus narrows and awareness deteriorates. The rate and extent of deterioration depends, in part, upon the environment, so that if the environment is uncomfortable or intense, the ability to focus deteriorates and the ability to subsequently recall events is affected. The greater the quantity consumed, the greater the deterioration in recall. The user does not pay attention to peripheral or contextual events, although very narrow central recall of particular details may be enhanced, depending on the amount consumed and the stressful nature of the event. There is gross impairment of the reality function and the creation of new realities, along with incorrect interpretation of external reality. Dr. Lohrasbe said that sleeplessness for 24 or more hours dramatically affects attention, perception and recollection. Each cycle of cocaine use over the day produces a movement downwards so that users are "not particularly reliable historians".

106     There is a correlation with cocaine use and violence. The disinhibition readies a person for action, an effect that, when overlaid with what is going on, such as provocation in the environment, can lead a person prone to aggressiveness to violence. Ms. Dinn said that the fear motivation may cause persons to act aggressively or homicidally aggressively, thinking that someone has come to kill them when this has nothing to do with reality. Dr. Lohrasbe said that cocaine pushes you relentlessly towards paranoia and that paranoia and violence are linked. If you perceive yourself to be under attack, the more likely you will protect yourself. Misinterpretation of the environment can lead someone with cocaine psychosis to violence.

107     Binge users experience diminution of the high as the binge goes on and the doses increase. Chronic users increasingly experience unpleasant effects so that heightened levels of alertness are transformed to paranoia with auditory or visual hallucinations. Chronic users tend to be irritable, anxious, nervous, and hyper vigilant for their safety. Ms. Dinn agreed with the toxicology report concerning the deceased and said that chronic cocaine use may result in psychological dependence, difficulty concentrating and remembering, short-temperedness, lethargy, tremours and shaking, irritability, delirium, paranoid psychosis and aggression. Not every user has all symptoms.

108     Chronic use can lead to cocaine psychosis, a condition when the user has broken with reality and fails to perceive the world correctly. Misperception and misinterpretation prevails, along with delusions, often persecutory, and hallucinations. Dr. Lohrasbe said that the fundamental feature of cocaine psychosis is paranoia of delusional proportions. The person is agitated and active. The user is anxious, anticipates attack, and is sometimes aggressive. The cocaine psychotic is often unable to speak complete sentences and his speech is sped up and scattered. Binge use is more connected to psychosis, usually occurring towards the end of the binge cycle. Once cocaine psychosis is experienced, it may be triggered with very low doses when binging. The time line to psychosis is rapid with cocaine and comes even more rapidly once psychosis is first experienced. Dr. Lohrasbe said that chronic cocaine users beyond one to two years are very likely to encounter psychotic symptoms.

109     It is difficult to identify the border between drug intoxication and psychosis. Heather Dinn testified that, with the level of cocaine found in the deceased, it is difficult to say what phase of cocaine from intoxication to psychosis the victim was on at the time of death. However, observations of behaviour are the best indicator. Dr. Lohrasbe said that there are many variables that may be operative in any individual case and that it is best to observe the behaviour. However, he said that one may react to a perceived threat with aggression without being psychotic.

110     Police and ambulance attendants who testified acknowledged their perception that a cocaine user in a fight or flight situation has super-human strength or tenacity. Falconer testified as a police officer for over 19 years who deals with people who have consumed large amounts of cocaine and said that their presentation is often irrational and unpleasant if an altercation ensues. He said that their extreme strength and resiliency makes them very hard to control, that they just do not stop, that they do not respond to reason, and that they sometimes have high tolerance to pain. Cameron, the ambulance attendant, also testified about the "Herculean" strength, ferocity, and lack of physical focus that he has experienced with persons under the effects of cocaine.

111     Dr. Lohrasbe also testified about rage, which he defined as an intent to shunt someone aside with a destructive element to it. Rage involves focused attention. Persons in a state of rage cannot think clearly or rationally and may not be in control of their higher levels of thought. Once in a rage, it builds up steam and the ability to put on the brakes is impaired. The person chooses to abandon self control.

      • (iii) Injuries to D_____, O____, and A____

112     O____ testified that she suffered minor bruises to the back of her neck and knee as a result of the blows that she sustained. She said that she saw a "gooseegg" on A____ when he was with her later that evening. However, A____ did not mention any injuries in his testimony.

113     Ambulance attendants called to the B___ Place scene on May 30, 2008 attended to D_____. She was observed to be limping, upset and crying. She was observed to have a minor injury with dried blood on her bottom lip and an abrasion on her left shoulder. She complained of left shoulder, right hip, and right knee pain. No treatment was administered. D_____ was taken to hospital with minor bruises to her hips, collarbone and left knee, and a fat lip. There was no bruise on her backside where she said that GB had kicked her. The bruises were photographed three days after events when D_____ had been placed in withdrawal care.

Theory of the Crown and Position of the Defence

114     The Crown submits that the evidence proves beyond a reasonable doubt that all three accused are guilty of murder. The Crown's theory is that T___'s death was the result of a joint enterprise: all three accused had animus towards T___; all attended to B___ Place together knowing that violence was likely; all participated in the prolonged assault on T___; KRB and GB both kept would-be rescuers at bay; all participated in dragging T___ down the driveway; and they all left together. While KSB medically occasioned the death, KRB and GB were either joint perpetrators or aiders and abettors by kicking T___ in the head, assaulting potential interveners, and assisting from the time of arrival until the time of departure. Self-defence is not available for any of the accused as they attended B___ Place to confront T___ with knowledge that a gun was present and violence was likely. Any right to self-defence that might have existed was concluded early in the assault when the B_____s took possession of the gun and chased away all potential interveners. After this point, the accused's actions were in no way necessary for purposes of self-preservation, but were rather retaliation resulting in murder. The evidence of KSB should be rejected as self-serving, evasive, in conflict with common sense, and in conflict with the physical evidence.

115     All accused assert that the Crown has not established beyond a reasonable doubt that KSB did not act in self defence within s. 34(2) of the Criminal Code and that KRB and GB were not coming to his aid, in self defence, or in defence of another under s. 37 of the Criminal Code in getting the gun from T___. The accused maintain that the evidence demonstrates that T___ confronted KSB and KRB in an aggressive, threatening altercation brought on by him alone with his gun in hand, and that T___ continued his assault after the gun had been removed from him. The defence submits that credibility is central here, and that O____, D_____, and A____, in particular, were so sleep-deprived and intoxicated from crack cocaine as to render their testimony unreliable, and that the inconsistencies in both D_____'s and O____'s evidence makes it dangerous to give their evidence any weight. O____ should simply be disbelieved. The defence submits that this is a clear case of self defence. Further, KRB and GB have not been proven to have aided or abetted, aside perhaps from being present or, if they did, to have aided a killing. KRB and GB assert that there is no evidence that the altercation itself was of such a nature that one could reasonably infer that either KRB or GB knew that KSB intended to kill T___.

Credibility of Witnesses

116     KSB testified at length. He has a criminal record for two assaults dating back to 1994 and 1999, which are not relevant to credibility. He gave his evidence in a responsive and calm manner and there were no major inconsistencies. His memory of the day was not affected by drugs and was unshaken in testimony. His evidence is corroborated on many crucial details. Animus that existed towards T___ was particularly between GB or KRB and T___, and did not directly involve KSB. Although he was aware that GB thought that T___ had ordered the assault upon GB in 2007, I accept that he did not connect that the "Keith" involved in the demand for money on May 30, 2008 was the same "Keith" as involved in the 2007 assault, despite some equivocation in his testimony. His statement immediately afterwards at the police station supports that he did not know who "Keith" was. Also, KSB was not a direct participant in the criminal activity, threats, and intimidation associated with the crack cocaine criminal sub-culture, except as it pertained to trying to help his sons kick the drug habit and assist from time to time with his sons' personal matters such as cars and debt. He did not have a particularly good relationship with GB and neither son informed their father of the details of their drug life. He stated that he went to # B___ Place on May 30, 2008 to deal primarily with a car insurance matter for KRB that had to be dealt with within a specific period of time. He was trying to keep KRB's recent rehabilitation going. This evidence was supported by Do____, who said that he expected KRB to return the next day to deal with the insurance. There was no evidence suggesting that the insurance matter was not real, despite the sardonic questioning on cross-examination. When KRB did return, driven by his mother in the afternoon, he did not see Do____ to discuss insurance because he was sidetracked into the room with T___. That involvement had ended relatively calmly, with T___ demanding and expecting all 3 B_____s to come to the house. I conclude that it is probable that KRB did not tell his father all of the details of that exchange. In particular, I accept KSB's evidence that KRB did not tell him that T___ had put a gun to his head earlier that afternoon and did not elaborate on any perceived threat. There is no evidence that T___ verbally threatened physical violence. Also, if KRB had told his father, there was a chance, given his past reporting to police, that he would have gone to the police regardless of the outstanding warrants for arrest of his sons. The conclusion that KSB did not expect violence is further supported by the manner of arrival at # B___ Place.

117     If KSB was expecting violence on a scale involving guns, this was not apparent from the manner of his arrival on May 30, 2008. He had a minimum amount of time, from the pub where he was seen calmly engaged with his wife to picking up GB, to talk to KRB. Then, there was not much time before the B_____s arrived at B___ Place. While it is true that KSB picked up GB knowing that it was a breach of the bail orders for the brothers to have contact, it is difficult to extend this circumstance to an intent to attend in force with the expectation of a violent confrontation. I accept that GB was in a state that caused his father to be more than disappointed in him and that this would and did result in a rant from KSB that would have mummed both sons, especially in the circumstance where they were not to have contact. According to KSB, there was some talk about the debt that "Keith" said was owed and KSB clarified with GB that he owed nothing and was given the epithet that he was "an asshole", hardly an astonishing description given the culture. KSB and KRB calmly walked up the driveway in full view of everyone and knocked at the front door. They held nothing in their hands and were unarmed. F___ heard the knock at the front door and testified that T___ told the girls to "open the door". It is not surprising that nobody else heard the knock, as they were all running wildly around by then. It was not as though the front door was never used, as F___ and Cousins appear to have come to the front door earlier in the day. To suggest that GB remained at the truck as a lookout does not make sense if there were many people at the house and violence was expected. KSB's explanation that he told GB to remain at the truck because he was high on drugs is not inherently incredible.

118     A crucial fact is that T___ immediately assaulted KSB and KRB with the gun as KSB came up the stairs at the back of the house, before KSB was in a position to or did initiate any confrontation. It is not contested that T___ had the gun and that he used it to intimidate KSB and KRB by pointing it at them. Although the Crown suggests that T___ acted defensively rather than offensively or aggressively, this is not borne out by the preponderance of the accepted evidence which will be discussed within self defence. KSB's evidence about the course of the fight is corroborated by others in important detail and by his voluntary statements to persons in authority immediately afterwards. He did not minimize his involvement in the fight in his testimony.

119     Do____, the owner of # B___ Place, is a 55-year old diesel parts man awaiting retirement while on disability leave for stress. He had been having memory problems at work as a result of a serious brain injury in several accidents. He is addicted to crack cocaine, having started use in about 2000. This addiction had led to serious financial problems, such as inability to pay the mortgage and hydro bills. In his testimony, he confessed that his recall of that day was blurry, that it was hard to remember all of the details, and that it was hard to get the exact times in that situation. He described himself as scared and panicking during the incident. He acknowledged that he was using cocaine heavily that day. He said that cocaine made him euphoric but also wary, with paranoid feelings. He had previously hallucinated on cocaine. He felt paranoid on May 30, 2008 and needed to smoke more. He agreed that cocaine affected his ability to perceive things around him and events taking place and that it made him confuse reality with what was really going on. While Do____ was sincere, his evidence is inherently unreliable.

120     D_____ was a 28-year old former girlfriend of T___'s who was addicted to crack cocaine for two and a half years at the time of this incident. She had no residence and had lost custody of her son to protection agencies due to the influence of crack cocaine. She considered herself to be a best friend of GB, but had fallen out, was acquainted with KRB, and knew KSB by sight. Although she attempted to minimize how long she had been staying overnight at B___ Place at first, it was established that she had been up for three days and nights doing crack cocaine at a great rate, given that there was no lack of supply. She agreed that it was hard to place events of May 30 in sequence and agreed that she was confused, panicked, and hysterical. She deliberately withheld information from police about KRB being at the home earlier in the day of May 30 in her first statement. She also made assumptions about certain evidence, particularly that T___ was put in the back of the B_____s' truck, when she had not seen this and it was, in fact, inaccurate. She was also clearly mistaken about T___'s arms and legs being tied behind his back. The tone of her evidence as to her removal from the fight scene changed dramatically in cross-examination when she finally agreed that she had jumped on KSB's back multiple times and may have been thrown off in an attempt to prevent her from getting hurt. Although D_____'s evidence is tainted with unreliability, I accept parts of her evidence provided it is supported by other evidence.

121     I reject O____'s evidence in its entirety. She had been T___'s girlfriend since 2007. She has been addicted to crack cocaine for 3 years. O____ had been doing crack cocaine all day on May 30, 2008 and the previous night, keeping her awake and in an "adrenalin rush". She had smoked a point of crack at least every half hour to an hour, but also said that it might have been only 5-10 minutes between hoots. She agreed that her perception and memory could be affected by crack cocaine. O____ testified that she did not see anyone smoking crack cocaine at the B___ Place house on May 30, 2008 except A____. She specifically said that T___ was not smoking crack cocaine and denied that he demonstrated any behaviour suggestive that he was on a cocaine binge. She said that he did not use crack cocaine, even though she said that he sold it. All of this evidence is contrary to the evidence of others at the house, particularly the evidence of those who testified that they had done crack cocaine with T___ on May 30, 2008. O____ deliberately lied under oath about this. She also said that she did not tell police in her statement to them that anyone was smoking crack at the house that day in order to protect them. She admitted that she deliberately misled police about this to protect A____. She also said that the house was empty when she got there on May 29, that no cocaine was consumed that night, and that T___ did not stay there on the night of May 29. All of this is untrue. She said that no drugs were being sold at the house on May 30. She said that T___ sold crack cocaine, but said not on that day. She testified that any cocaine there on May 30 was A____'s. But, she denied that A____ was selling crack and denied that Mc_____ came into bedroom #1 to buy crack when she was in the bedroom with A____ and T___. This is all untrue. O____ had testified under oath at the preliminary inquiry that T___ was not a cocaine dealer and had to admit at trial that this was not true and that she had deliberately lied under oath to protect T___. She said that nobody smoked crack from after KRB left in the afternoon until she was in the bush with A____ after the incident. This is specifically untrue given the evidence of F___ and the toxicology report and is, I conclude, a deliberate lie under oath to protect T___ from the finding of fact that he was high on crack cocaine and had just ingested cocaine prior to the arrival of the B_____s at the house. She refused to allow the preliminary transcript to refresh her memory several times and said instead that she had no memory. Particularly, she said that she had no memory of talking with others about what occurred on May 30. O____ testified at the preliminary inquiry that T___ did not do anything with the gun except put it on the dresser when KRB came into bedroom #1. At trial, she admitted that he pointed the gun to KRB's head. She denied that she picked up a knife at the back door, contrary to the evidence of R____. She said that she was willing to lie under oath about what happened. She said that she lied under oath at the preliminary to protect T___ and would do just about anything to protect him, including lie under oath at a murder trial and risk her life. She agreed that there was no limit to what she would do. All of this makes O____ a discreditable, lying witness whose evidence simply cannot be either believed or relied upon in any way.

122     F___ admitted to having an extensive criminal record; however, no details were provided and it is not, therefore, significant to credibility. Although he was a friend of KRB and GB for four or five months at the time, he specifically did not take sides as between T___ and KRB or GB. He was addicted to crack cocaine and had been doing the drug for most of the day with Pa___. His evidence was detailed, candid, and humourous at times. He clearly had no stake in the outcome of all of this. There were no significant discrepancies or inconsistencies in his evidence. His perspective of what was going on with T___ was important as he described the moments before and when the B_____s arrived, providing insight into T___'s state of mind as he grabbed a gun that he knew did not work. The unreality of T___'s statements to F___ immediately preceding the incident actually gives reality to what happened in the backyard. F___, not a novice to drug hyped behaviour, really thought that T___ was going to shoot KRB. He saw the struggle for the gun and heard "Get the gun" as KSB tried to get the gun from T___'s right hand. F___ did not run away from the house as did others, but was there when police arrived, apparently blasé as to what had occurred. Unlike D_____ and others, he was not panicked or hysterical. I accept his evidence as a fairly accurate description of what happened, so far as he saw it.

123     R____ was significantly affected by events of May 30, 2008. He has not done crack cocaine since that day. Despite knowing the B_____ brothers for a long time, like "family", he gave his evidence in a straightforward and unbiased manner. He knew T___ through drugs. There were no significant challenges to his testimony. I prefer his testimony over O____'s as to what O____ picked up at the back door, particularly T___'s knife with the blade partly opened.

124     A____ has been addicted to crack cocaine for ten years. He was a close friend of T___'s and his partner in the business of selling crack cocaine. He also knew KRB and GB from growing up. He said that he "tolerated" the B_____s. His memory was poor until he reviewed his preliminary transcript and even then could not remember when he had stayed at Do____'s house before the incident. He had been doing drugs heavily that day. He agreed that his use of cocaine affected his memory and that he had trouble putting events in proper sequence. He tried to minimize the amount of cocaine that T___ had consumed on May 30, 2008 by saying that T___ had not been at the house until the afternoon, clearly wrong. He was mistaken that all three B_____s had come up the driveway together. While admitting that T___ had a gun in the backyard, he said in direct examination that he kept it pointed at the ground. When his testimony from the preliminary inquiry was put to him, it was apparent that he had observed T___ raise the gun as KSB and he came face to face. He still insisted, however, that T___ raised the gun to his side and not in front as to point it at either KSB or KRB. This is contrary to other evidence, particularly F___'s and KSB's. Further, it does not make sense that T___ would have just held the gun at his side in all of the circumstances. A____ obfuscated when asked whether the girls had jumped on KSB's back, but eventually agreed that he saw this. I reject his evidence that he went to assist T___, but froze. There was no reason for him to do so in the circumstance of his partner engaged in a fight and when A____ would most likely have known about the condition of the gun, an inference that I make from the circumstances of the afternoon and A____'s involvement with T___. It is more likely and I conclude that he entered the fight by stomping with his foot.

125     It is difficult to make much of Mc_____'s evidence concerning the fight. He could not see accurately because he was not wearing his glasses. He admitted to having been a heavy user of crack cocaine on May 30, 2008 and recognized that the cocaine put his timing out and any estimates could be either longer or shorter. He observed T___ in a fight with fists flying at the back door. He said that T___ was standing and both giving and taking blows before he fell to the ground. It is unlikely that T___ could have been giving blows described as "fists flying" while holding a gun in his hand. Based on other evidence, it appears that T___ had first fallen to the ground with KSB on top of him near the sawhorse in the backyard, some distance from the back door, and after the blow by KSB without an exchange of fists. From these circumstances and Mc_____'s description of the fight at the back door, I tend to agree with defence that Mc_____ had seen the second stage of the fight as described by KSB.

126     Newman's testimony about what KRB and GB talked about at her house immediately after the incident is affected by her confusion over the source of her knowledge and the fact that she got bits and pieces of the conversation and then glued together the gist of what she thought had been said. She said that KRB told her that he had hit A____ and then confirmed from her preliminary transcript that the information had come from A____. At another time, the information that was elicited in direct examination had come from information from others. O____ and A____ had stayed at her house after KRB and GB left and, although Newman denied it, they did crack cocaine. At the end of the day, preference will be given to direct evidence that has been accepted over Newman's reports of overheard conversations if there is a conflict.

127     P____ was inaccurate in his observations of events on May 30, 2008. Given his evidence that T___ had staggered to the lower end of the driveway, contrary to what must have been T___'s condition after having been choked twice, an admission was subsequently made that T___ had shown no signs of life as he was taken down the driveway and put into the truck. Also, P____ had not mentioned that anyone was "dragged" down the driveway in his statement to police. From photos taken at various times of the view of # B___ Place from P____'s vantage point, and given that several cars had blocked the driveway, I conclude that P____'s evidence of his observations is not very helpful as his view was substantially compromised and he was clearly mistaken on important details.

Count 1: Murder

128     The Crown must prove beyond a reasonable doubt that each accused is guilty of the offence of second degree murder. To do so, the Crown must prove each element of the offence for each accused beyond a reasonable doubt. Time and place of the offence and the identity of each accused is not in issue. Neither is it an issue that KSB caused the death of T___ by two acts of choking. What is in issue is whether the Crown has proven beyond a reasonable doubt that each of the accused committed an unlawful act, in this case assault, and that each accused either meant to cause the death or meant to cause bodily harm that he knew was likely to cause death and was reckless whether or not the bodily harm caused death. In the cases of KRB and GB, the Crown also alleges that each accused aided and abetted KSB in committing an unlawful act and that each shared the requisite intent to kill.

129     In approaching these issues, it is important to remember that any decision must be based only on the evidence as presented during this trial and must not be based upon any sympathy for any parties involved. It is also important to remember that proof beyond a reasonable doubt is a high standard that requires proof of unlawful assault and intent, the active issues here, to the degree that I am sure that each accused is guilty. It is not a question of probabilities.

130     Conduct that might otherwise constitute an unlawful act is justified at law if it occurs during the course of self defence. This justification is based upon the necessity for self preservation and is not behind the motivation of one who attacks and kills another. It covers situations of last resort. In this case, KSB admits that he applied force to T___ but says that he did so while defending himself and appeals to s. 34(2) of the Criminal Code. That section says:

    • (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.

131     There are three elements to self-defence as defined under s. 34(2) when raised on a murder case, as recently described by the Ontario Court of Appeal in R. v. Pilon, 2009 ONCA 248, 64 C.R. (6th) 356 at para. 62, as follows:

    • Self-defence, as defined in s. 34(2), when raised on a murder case, has three elements. First, the accused must have been subjected to an unlawful assault, or reasonably believed that he had been assaulted. Second, the accused must, when he inflicts the fatal injury, be under a reasonable apprehension of the risk of death or grievous bodily harm. Third, the accused, when he inflicts the fatal injury, must reasonably believe that he cannot otherwise preserve himself from death or grievous bodily harm.

132     Each of the three elements of the defence has a subjective and an objective component. The Supreme Court of Canada spoke of this in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 94:

    • 94 Each of the three elements under s. 34(2) has both a subjective and an objective component. The accused's perception of the situation is the "subjective" part of the test. However, the accused's belief must also be reasonable on the basis of the situation he perceives. This is the objective part of the test. Section 34(2) makes the reasonableness requirement explicit in relation to the second and third conditions. Pétel held that the same standard applies to the first component of the defence, namely, the existence of an assault. With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances.

133     With these elements and considerations in mind, I turn to the evidence for each element of the defence as it applies to KSB.

134     Was KSB unlawfully assaulted, or did KSB reasonably believe, in the circumstances, that he was being unlawfully assaulted by T___? To put it another way, in the words of McLachlin C.J.C. and Bastarache J. in Cinous at para. 107, did KSB actually believe that he was about to be attacked or was under attack and was his perception reasonable? KSB testified that he came up the back stairs and was confronted by a man wielding and pointing a gun at him from an elevated position. T___ went back and forth against the fence pointing the gun alternately at KSB and KRB. KSB and KRB were not armed. KSB took the closest place that provided protection while KRB stood still near the bottom of the stairs. T___'s position near the fence was supported in the evidence of D_____ and F___. She also confirmed that T___ was pointing at KSB and KRB while yelling in a situation that she described as "intense". F___ described that T___ held the gun to KRB and was freaking out, pointing the gun back and forth between KRB and KSB. F___ thought that T___ was going to shoot. T___ was extremely agitated, yelling incoherently, and threatening. There is no doubt that T___ assaulted KSB and KRB with a gun that both accused would have had no reason to believe was not fully operational. KSB testified that his efforts to calm the situation were futile as T___ charged at him and made a motion to fire the gun. KSB testified that he thought that he was going to be dead. It was at this point that KSB acted to protect himself and rammed T___ as hard as he could, falling to the ground near the sawhorse in the backyard. Several witnesses testified about KSB's calm attempts to get T___ to put the gun down and the fight near the sawhorse. Given this testimony and these circumstances, I conclude that T___ assaulted KSB and KRB with a gun and that KSB believed that he was going to be shot. I reject Crown's assertion that T___ was acting defensively. He started what turned out to be a deadly confrontation by attacking KSB with a gun and threatening him. He was paranoid about the B_____s being there after he had invited them and then acted irrationally in grabbing the gun that did not work. His statements to F___ just before the incident started showed that T___ had a heightened sense of power and purpose.

135     But, in the circumstances of KSB's testimony that he eventually brought the situation under control by GB getting hold of the gun, the question continues because the defence must apply throughout the confrontation and, in particular, when the fatal blow is dealt (Pilon at para. 66). In this case, there is evidence and I accept that T___ recovered initially and came at KSB again. The blood and articles found near the stoop at the back door of the house and on the stairs indicate that a fight continued in that location. Mc_____ saw a violent fight near the back door with fists flying while T___ swore "mother fuckers". KSB testified that T___ came at him with a knife. T___ was known to carry a knife and R____ testified that O____ picked up T___'s knife and other articles near the back door. T___'s advanced state of cocaine intoxication, perhaps psychosis, was such that he could be expected to exhibit super human strength and tenacity and to shed pain. KSB described in his testimony that T___ charged at him and that he held something in his hand that KSB identified in the course of the fight that ensued as a knife. He then described that T___ continued to fight frantically, causing KSB to eventually hold T___ in the choke that was ultimately lethal. Given this testimony that I accept, I conclude that T___ continued his assault on KSB by physically charging at him with a knife that he was attempting to open and that he fought ferociously against KSB while saying that he was going to kill him. Although KSB was bigger, he was also older and exhausted, without the super dynamics attributable to T___ from the effects of crack cocaine.

136     The second element of the defence is that when the accused caused death to T___, he did so under a reasonable apprehension of death or grievous bodily harm from T___. This raises the question of when KSB got control of the gun and whether KRB and GB were assisting him such that the situation was under control, leaving KSB to become the aggressor. The Crown asserted that the gun was taken from T___ almost immediately after the first blow was struck by KSB.

137     KSB was clear in his testimony that he was scared and thought that he was going to be killed in the initial stages of the confrontation. He then described the struggle for the gun. From the evidence of the 911 calls, which I conclude are the most reliable indicators of timing, it is apparent that the whole episode, from the time that the loud voices started and the maximum five minutes before the 911 calls were placed, to the arrival of police at the scene, lasted a maximum of fifteen minutes in total. During this time, KSB had taken T___ down the driveway and into the truck and then had driven the approximately five minutes to the police station. This means that the confrontation itself lasted about ten minutes from start to finish. The 911 caller's statement concurrent with the events was that there were the words "Get him off me" and then "Get the gun". I conclude that the words "Get the gun" were spoken after the earlier words because the caller retreated further into her house at that point. I also conclude that the words were spoken about ten minutes into the confrontation, based upon the time that the words were reported in the 911 call. This means that the struggle for the gun went on for awhile and that the gun was not taken immediately. The timing suggests that there was little time left for the final stages of the fight which still continued in the backyard as noises were still being heard from there. F___ testified that he heard the words "Get the gun" when the violent struggle was going on in the backyard near the sawhorse. Based upon all of this evidence, I reject the suggestion from the Crown that these words were spoken on the driveway as the B_____s were leaving.

138     The struggle for the gun was continuing as O____, D_____ and A____ intervened to help T___, according to the evidence of KSB. O____ and D_____ were thrown aside by GB and/or KRB. Although D_____ testified that KRB held the gun as she was thrown aside, there is reason to doubt that this is true because of KSB's evidence that the girls jumped on his back while he was still struggling to get the gun. Also, D_____ agreed in cross-examination that GB pushed her out of the way because he did not want her to get hurt and did not want her interfering with trying to get the gun. It is unlikely that O____, D_____ and A____ would have intervened as they did if KRB and GB were standing on either side of T___ and holding a gun. Mc_____'s testimony that he saw D_____ near the back door and then a man enter with a gun is unclear in time and uncertain for what was seen in the man's hands, because Mc_____ was not wearing his glasses and he admitted that everything was blurred. There is also evidence that the gun barrel was found to be full of dirt upon inspection afterwards, leading to the inference that T___ still held the gun as he twisted over onto his stomach during the fight as described by KSB. KSB testified that he did not know where KRB was and that he only saw GB. When he saw that GB had a hold of T___'s gun hand, KSB adjusted his hold to grip a choke with both arms, causing T___ to go limp. KSB said that he rolled off T___ immediately. There is no evidence that T___ was kicked or punched by either KRB or GB after this point. In fact, there is no reliable direct evidence that either KRB or GB kicked or punched T___ at all, except for KSB's testimony about GB. While there is circumstantial evidence based upon the injuries to T___, these could have been caused by KSB who described that he punched and struck T___ multiple times in the course of the confrontation and by A____ who stomped indiscriminately during the fight. The sources of impressions left on T___'s head were not established and the most that could be said is that they could possibly be footwear.

139     KSB testified that he feared for his life as T___ had the gun. It is reasonable to infer that this fear continued so long as KSB struggled with T___ to get the gun away from him. When T___ passed out near the sawhorse, it can be assumed that KSB thought that GB had the gun. However, KSB testified that T___ acted like a "lunatic" and then came at him again. KSB was out of breath and was unaware of where either KRB or GB was. From all of the evidence, it is not in fact clear where KRB or GB were, as they were not seen by most witnesses until the driveway. KSB testified that GB came to his aid after he choked T___ again and threw him down the stairs. There is scant evidence that either KRB or GB were involved in the second part of the fight near the back door stoop. KSB testified that he thought that T___ was going to kill him when he charged at him with the knife. There was another bitter fight during which KSB described T___'s frantic kicking and punching before KSB managed to get him in a hard choke hold and push him down the stairs. From this evidence, I conclude that KSB believed that he faced death or grievous bodily harm from T___'s attacks and that it was a reasonable belief in all of the circumstances.

140     The third component to self-defence under s. 34(2) is that, at the time that KSB choked T___, he believed, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm. After the need for self defence had passed, did KSB act in retaliation to inflict the final choke upon T___? KSB testified that he retreated away from T___ to catch his breath and that before he had risen fully, T___ attacked again. He said that T___ was acting like a lunatic, that he went nuts, that he was unstoppable, and that he continued to fight fiercely. KSB saw the knife and thought that T___ was trying to open it whilst kicking and punching frantically. KSB was unaware of where KRB or GB was, and there is no direct evidence that either was involved in the fight at this point. KSB said that he did not know what more he could do, so he choked T___ longer and harder, as reported to Cameron later. I accept that KSB believed that he had no other course of action open to him. He had to stop T___ and he choked him to preserve himself from further attack. The question then is whether it was reasonable for KSB to have believed that he had no other option.

141     All of this happened quickly. There was chaos with glass smashing and people yelling and running around. Others had jumped on KSB or stomped on him during the fight. T___ appeared unstoppable with his incredible tenacity and strength. KSB's strength was waning. In all of the circumstances, it is difficult to conclude that there was a sensible opportunity to avoid further combat. It is reasonable in all of the circumstances for KSB to have thought that the only option was to choke T___ as hard as he could.

142     After considering the evidence of the KSB, which I accept in large part, and after considering his evidence in conjunction with all of the other evidence that I accept, I have a reasonable doubt that KSB was acting in self-defence. The Crown has not proven beyond a reasonable doubt that KSB committed an unlawful act. It follows that I find KSB not guilty of murder. It further follows that the Crown has not proven that KRB or GB aided or abetted an unlawful act.

143     With respect to KRB as a co-perpetrator, it has not been established beyond a reasonable doubt that KRB struck any blows to T___. D_____'s evidence is uncertain, unreliable, and insufficient to establish beyond a reasonable doubt that KRB kicked or punched T___. While it may be inferred from the injuries suffered by T___ that he was struck by more than one person, D_____'s evidence, when considered in the context of the evidence of KSB, casts doubt that it was KRB. Further, the evidence reasonably leads to the conclusion that any involvement by KRB occurred after the intervention by D_____, O____, and A____ and, in the circumstances of T___ still holding onto the gun and struggling, cannot be characterized as fighting off T___'s rescuers to allow KSB to kill T___, but rather as assisting in the self-defence of KSB. There is no evidence that KRB was involved in the second stage of the fight near the back door. On this basis, the Crown has not established beyond a reasonable doubt that KRB was a perpetrator in a murder. I find KRB not guilty.

144     While I conclude that GB punched and kicked T___, he did so in an attempt to relieve T___ of the gun in furtherance of the self-defence of KSB. The same can be said of his removal of D_____, O____ or A____ from the fray. There is reasonable doubt that GB participated in the second stage of the fight near the back door where the final choking occurred. I conclude that the Crown has not proven beyond a reasonable doubt that GB was not acting in self-defence under s. 37 of the Criminal Code. That section says:

    • Preventing assault
    • 37.(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
    • Extent of justification
    • (2)

Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

145     There are three elements to self-defence under s. 37: first, that the accused used force; second, that the force was used to defend a third person under his protection from assault; and, third, that the force used was no more than necessary to prevent the assault or the repetition of it (R. v. Grandin, 2001 BCCA 340 at para. 36, 44 C.R. (5th) 53). "Under his protection" has been broadly construed to include any one who requires protection which the accused may be able to provide (R. v. Webers, [1994] O.J. No. 2767 at para. 47, 95 C.C.C. (3d) 334; R. v. Foley, [2000] O.J. No. 5204 at para. 61). The force used must be no more than was necessary to prevent the assault and cannot be excessive.

146     In the circumstances here, I am not satisfied beyond a reasonable doubt that the force used by GB to assist KSB and the get the gun from him was more than was necessary to prevent the continuing assault on KSB. T___ was high on cocaine and verbally and physically aggressive. A bitter struggle for the gun was ensuing and GB punched and kicked at T___'s hand holding the gun, according to KSB. GB was able to get a hold of the gun hand, at which point KSB choked T___ the first time. In the circumstances, the conduct of GB was not excessive. The Crown has not established beyond a reasonable doubt that s. 37 does not apply. I find GB not guilty of murder.

Count 2: Assault Causing Bodily Harm to D_____

147     Both KRB and GB are charged with assault causing bodily harm to D_____. D_____ testified that KRB and GB pushed her out of the way when she entered the fray while KSB and T___ struggled on the ground in the backyard. KSB testified that two women jumped on his back during the struggle. A____ also testified that D_____ jumped on KSB's back but was pulled off by KRB and GB. If KRB and GB did so act, they did nothing more than to remove D_____ forcibly from the immediate scene of the struggle in an extremely chaotic situation in which D_____ described herself as hysterical. D_____ did have minor injury. If KRB did act to keep others from interfering, conduct in which I have reasonable doubt based upon D_____'s evidence alone, it was to protect KSB from further assault and possibly death at the hands of T___ and involved not more force than was necessary to remove D_____ from the scene. The evidence against GB is similarly based upon D_____'s testimony alone which is unreliable and not supported by other evidence. He was also acting to protect KSB and used no more force than was necessary. Both KRB and GB's actions would therefore have been justified under s. 37.

148     I find KRB and GB not guilty of assault causing bodily harm to D_____.

Count 3: Assault of O____

149     KRB is charged with assault of O____. Evidence concerning this assault was given by O____, whose evidence has been rejected. A____ said that KRB and GB pulled O____ off of KSB's back. However, A____'s evidence has been significantly discounted such that I would not rely on his description of events alone to establish anything beyond a reasonable doubt. Further, there is no evidence to suggest that KRB was doing anything other than protecting KSB with reasonable use of force in the circumstances, conduct within the confines of s. 37. I find KRB not guilty on count 3.

Count 4: Assault of A____

150     KRB is also charged with assault of A____. I have found that A____ entered the fight in the backyard near the sawhorse and stomped indiscriminately to defend T___. I reject his evidence that KRB chased him and hit him on the back of the head, independent of removal of A____ from the fight at the sawhorse. The position of this evidence in the sequence of events was unclear and A____'s evidence was so seriously undermined in significant detail that it cannot be relied upon to establish proof beyond a reasonable doubt. I find KRB not guilty on count 4.

Conclusion

151     All charges are dismissed against all accused.

J.R. DILLON J.

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