IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Pierce, |
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2017 BCSC 2469 |
Date: 20171213
Docket: 27252
Registry: Vancouver
Regina
v.
Stephen Douglas Pierce
Before: The Honourable Mr. Justice G.C. Weatherill
Oral Reasons for Judgment
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Counsel for the Crown: |
J.H. Cryder |
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Counsel for the Accused: |
L.J. Helps |
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Place and Dates of Trial: |
Vancouver, B.C. November 20–21, 27–30 |
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Place and Date of Judgment: |
Vancouver, B.C. December 13, 2017 |
[1] THE COURT: The accused is charged by way of indictment dated August 4, 2017, with four counts.
Count 1:
On or about the 18th day of September, 2015, at or near Vancouver, in the Province of British Columbia, did commit aggravated assault of Marlon David Brownsberger, contrary to Section 268(2) of the Criminal Code.
Count 2:
On or about the 18th day of September, 2015, at or near Vancouver, in the Province of British Columbia, did in committing an assault upon Marlon David Brownsberger, use a weapon, to wit: a hatchet, contrary to Section 267(a) of the Criminal Code.
Count 3:
On or about the 18th day of September, 2015, at or near Vancouver, in the Province of British Columbia, did commit aggravated assault of Catriona Mary Miller, contrary to Section 268(2) of the Criminal Code.
Count 4:
On or about the 18th day of September, 2015, at or near Vancouver, in the Province of British Columbia, did in committing an assault upon Catriona Mary Miller, use a weapon, to wit: a hatchet, contrary to Section 267(a) of the Criminal Code.
[2] The accused pleaded not guilty to all four counts.
[3] The incident on September 18, 2015 resulted in Ms. Miller suffering serious bodily harm. Marlon Brownsberger (“Marlon”) was also injured, but less so.
[4] The issue to be decided is whether it was the accused who committed the assaults.
[5] As indicated in the charges, the assaults took place in a detached house located at [address redacted] Sophia Street, Vancouver (the “house”).
[6] The house is comprised of two separate rental suites, one at ground level (the “lower suite”) and one on the second floor (the “upper suite”).
[7] The accused was the tenant in the upper suite. Ms. Miller, her spouse Dan Lewis, and her son Marlon were the tenants in the lower suite. Access to the upper suite is by way of stairs in the house’s common front entrance foyer, or from stairs to the balcony at the rear of the house.
[8] The house is owned by the mother of Baljit Binning. Mr. Binning manages the house and its tenancies.
[9] Mr. Binning met the accused through a friend of his sister’s, who was the accused’s girlfriend. He rented the upper suite to the accused in August 2014. Mr. Binning did not socialize with the accused and did not consider him to be a friend. Mr. Binning described the accused as polite, but that he had an ego, was somewhat pompous, and tended to puff himself up and “talk big”.
[10] The garage at the back of the residence at [address redacted] Sophia Street, immediately to the south of the house, was used by a landscaping company for equipment storage and as a workshop. Each workday morning, various of the company’s employees gathered in the lane outside the garage to pick up equipment. One of the employees, Nathan Roan, testified that prior to February 17, 2015, the accused had complained a few times to him and his colleagues about them having parked their work vehicles in the lane directly behind the house. Initially, the accused’s complaints were non‑confrontational, but over the course of several months, they became unfriendly demands that the vehicles be moved.
[11] On the morning of February 17, 2015, when the employees of the landscaping company were gathered as usual outside their rented garage, the accused emerged from the house in a near rage because one of the employees had parked his truck in the lane directly behind the house. The accused demanded that the truck be moved and that a fence between the two houses be repaired. One of the employees named Jen asked the accused to calm down and told him that they were in the process of repairing the fence. Jen and the accused engaged in a verbal confrontation.
[12] Another employee, Mr. Roan, who was present at the time of the confrontation, testified that he noticed the accused was holding two objects with bright‑coloured handles, one in each hand. As the accused turned to return to the house, Mr. Roan discerned from the shape, size, and from the glint of metal from the objects that they were hatchets. The handles were being held along and up against the inside of the accused’s arms. The heads of the hatchets were in the palms of his hands.
[13] Mr. Roan testified that the encounter disturbed him and that he had been fearful for his and his co‑workers’ safety. He informed his employer of the incident.
[14] Mr. Roan testified that he knew very little about the September 18, 2015 incident, other than that there had been an attack and a fellow employee, Claudia Bialostozky, had witnessed something and had called the police.
[15] After completing his testimony, Mr. Roan realized later that evening that he had exchanged emails with Ms. Bialostozky between October 1 and October 5, 2015. As a result, he contacted Crown Counsel, who, after consultation with counsel for the accused, recalled Mr. Roan to testify a few days later.
[16] Mr. Roan explained that Ms. Bialostozky’s emails jarred his memory about the February 17, 2015 incident and, that, although he did not believe it is the case that he would not have remembered the accused had been carrying hatchets had he not received Ms. Bialostozky’s emails, he cannot say that it is not possible.
[17] Daniel Lewis, his wife Catriona Miller, and Marlon rented and moved into the lower suite on February 23, 2015. Marlon was 25 years old at the time. Ms. Miller testified that Marlon was born with hydrocephalus, which resulted in Marlon having developmental, cognitive, and behavioural issues while he was growing up. He required support persons while attending school, but was able to complete high school.
[18] Ms. Miller testified that her first interaction with the accused was shortly after they moved into the house. She saw the accused and attempted to be friendly with him, but the accused just stared vacantly and would not engage in conversation with her.
[19] Mr. Lewis testified that shortly after he and his family moved in, he had an encounter with the accused during which the accused informed Mr. Lewis that he, the accused, valued his privacy and stated he wanted things at the house to be a particular way. The accused later told Mr. Lewis how he had been able to get the previous tenants in the lower suite to move out by turning up the heat in the house and dropping heavy weights on the upper suite’s floors.
[20] Mr. Lewis testified that he had been told by Mr. Binning, the landlord, that the accused liked his privacy, and that as long as Mr. Lewis and his family kept to themselves and did not bother the accused, things would be okay.
[21] It did not take long for tensions to rise between the two sets of tenants. Mr. Lewis and Ms. Miller testified regarding an incident that occurred on May 1, 2015, when the accused complained of the amount of noise the lower suite tenants were making. They, in turn, complained to the accused that the heat in his unit was kept too high and that it was uncomfortably hot for them in the lower suite. Apparently, the thermostat in the upper suite was able to override the thermostat in the lower suite.
[22] The heat issue led to an argument between the accused and Mr. Lewis during which the accused said, “What are you going to do about it?” and Mr. Lewis said, “I’m done talking to this asshole”.
[23] The accused responded by coming very close to Mr. Lewis’s face in an intimidating manner before returning to his unit.
[24] Shortly thereafter, the heat in the house increased to about 80 degrees Fahrenheit and heavy weights were dropped on the floor of the upper suite throughout the rest of the day and well into the evening. This ultimately resulted in the light fixture in the lower suite’s living room ceiling breaking away with shards of glass barely missing Mr. Lewis and Ms. Miller as it fell to the floor. It also caused the ceiling light fixture in Marlon’s bedroom to come loose. Ms. Miller immediately called Mr. Binning, the landlord, to complain.
[25] In Mr. Lewis’s mind, the accused was trying to make the living conditions in the lower suite as unbearable as possible for him and his family so that they, like the previous tenants, would leave. He determined that he would no longer have anything to do with the accused.
[26] The following day, the accused told Ms. Miller that his actions of the previous evening were the result of Mr. Lewis telling him to “F off” and that he was merely releasing some aggression. A few days later, on May 5, 2015, Ms. Miller sent an email to Mr. Binning stating:
Hi Baljit,
This is a follow‑up to our complaint of our neighbour upstairs. I called you last Friday, May 1, that Stephen had had words with my husband concerning the heat. As Stephen does, he got right into Dan’s face and asked what Dan was going to [do] about it. When Dan did not move or back down, Stephen once again told us we were done and to move. Dan said he had heard that before. That was the exchange, there was no swearing on Dan’s part, he did not tell Stephen to go F himself. I myself kept out of it and did not say a word.
Stephen went upstairs, turned the heat on full blast, within 15 minutes it was 80 degrees. He then started to drop plants or move them around so that our [whole] house shook. This started at 6:00 and the banging did not stop until I called you after 11:00 when our ceiling fixture broke in our living room, nearly missing Dan and I.
I am unclear why you allow such behaviour continue. You have told Dan and I it is up to us to work it out with him, it is hard to work something out when somebody is irrationally [sic]. Being a landlord, you know that we are entitled to quiet enjoyment and we have not had that since the day we moved in. I feel some responsibility does lay with you.
Again, I ask that you please bring us a new light fixture for the living room, preferably something that can endure wrath of Stephen, as his outburst will undoubtedly occur again. I would also like to say that I found it quite disappointing that you offered to evict all of us instead of dealing with [Stephen]. You said before if he makes another tenant move out, he will be next. You know this fellow has issues with his temper and personality and wished you would have given us the heads up about him before we moved in, at least giving us an option to decide instead of putting us in harm’s way.
Thank you for your understanding. I would appreciate it if you would give us an update as to how your conversation went with Stephen concerning this matter.
[27] Shortly thereafter, Mr. Binning and his brother were at the house to rebuild the outside rear stairway which led to the upper suite. Mr. Binning testified that at approximately 9 a.m., Ms. Miller was outside having a beer and began to yell at him, accusing him of being, among other things, a “slum landlord”.
[28] The accused, who was in the upper suite, heard the commotion apparently, and began yelling at Ms. Miller for yelling at Mr. Binning. Both Mr. Lewis and Ms. Miller testified that the incident occurred not in the morning, but rather later in the afternoon.
[29] Ms. Miller testified that, at the time, she had consumed three to five alcoholic drinks and that the accused and Mr. Binning’s brother, who appeared to be friends, were making fun of her slurring her words and did not wish to speak to her. Ms. Miller conceded on cross-examination that she was verbally aggressive with them and that profanity was used by both sides.
[30] In late May 2015, Mr. Lewis and his family established a small garden on the south side of the backyard of the house. Mr. Lewis and Ms. Miller testified that the accused appeared to be pleased that they had an interest in gardening and had cleared the garden area for them. However, the accused raised concerns that anything they plant be non‑GMO, meaning genetically modified organic, as otherwise, they might cross‑pollinate with and contaminate the non‑GMO plants the accused was growing.
[31] Ms. Miller testified that, although Mr. Lewis was not interested in having any exchanges with the accused, the exchanges she had with him were uncharacteristically friendly and engaging. Indeed, the accused apologized for his previous behaviour and gave Ms. Miller a juicer which he hoped would help Mr. Lewis’s dietary restrictions. Ms. Miller was wary of the accused’s change in demeanour and threw the juicer in the trash.
[32] Mr. Lewis and Ms. Miller testified that the accused’s change in character was short-lived and he soon after returned to his previous unfriendly demeanour. On a few occasions, the accused parked his van alongside the Lewis family’s garden in a manner that blocked their access to it.
[33] Over the ensuing months, Mr. Binning received several emails from one or other of the house’s tenants regarding these and other complaints, including from the accused that Mr. Lewis and his wife were smoking and using illicit drugs. Mr. Lewis testified that, when he and Ms. Miller learned that the accused did not like them smoking in the house, they stopped doing so and thereafter only smoked outside.
[34] In two of the emails Mr. Binning received from the accused in July 2015, the accused stated respectively:
I would cause you great physical harm if you were in my personal space any time soon …
And:
… I haven’t worked for some time now cause ive [sic] really needed to get my head together im [sic] not well and im [sic] fart in the tub bite at the bubbles crazy and the odds on me killing some one soon are pretty good . . .
[35] Mr. Binning considered those statements as nothing more than the accused’s usual “big talk”, “rapper attitude”, and typical of the jargon the accused used.
[36] On July 16, 2015, Ms. Lewis found a handwritten letter from the accused in her doorjamb. It read:
Dear Mr. Miller, Ms. Louis, Tenants located in basement located at [address redacted] Sophia,
I am writing this letter in hopes we can reach an amicable solution to another problem we seem to be experiencing here at our home.
Mr. Binning (our landlord) and I have made it quite clear I am a very private person and do not require any social value to our living arrangement.
For reasons of my own Im [sic] not interested in engaging you or any one from this community in conversation.
I rent the 3 bedroom suite above you, share a hydro and gas bill with the 3 of you. It ends there.
I am not interested in dealing with you and yours and only do when your lifestyle choices effect my life, property or serenity.
Please refrain from smoking in our home, anything but medicinal mariuwna [sic] (of course if your [sic] permitted by law, I am.)
And for heavons [sic] sake … Please stop staring into my suite!!! I extend you the same courtesy. It’s creepy! It’s uncalled for! It’s against the law! And it’s ground for eviction!
I cant stress this enough mind your own business and I will extend you the same. If something I do bothers you send me an email [email address redacted] or tell me.
[37] Enclosed with the letter was a copy of the wording of the criminal harassment provisions of the Criminal Code, R.S.C. 1985, c. C-46, s. 264(2).
[38] Ms. Miller responded to the letter with an email to the accused sent later that day in which she stated:
Mr. Pierce,
We received your hand delivered letter that was stuck in our door way this afternoon dated 16/07/2015. You reiterated what Baljit our landlord stated about not smoking in our suite, we will adhere to this rule. You also asked that we not engage you, harass, make you uncomfortable and unsafe in your home by staring in your windows.
In future, we will not engage you and only contact you by email if it is absolutely necessary. In your letter you stated that we have been creepy by staring into your home. We have no idea how we are doing that as you live on the top floor of the house. We have looked up at both your decks at your plants or Humming bird feeders but in no way can we see into your home nor do we want to. Today Dan was across the alley watching wasps gather material and was looking back across the alley towards the house, perhaps you misinterpreted that as being creepy.
Again let us know what it is we are doing that is making you feel threatened as we do not know what it is that is bothering you.
I have informed my son of your wishes and concerns, so there is no need for you to engage or talk to him. My email address is [email address redacted]. Use this address to explain how we are staring into your home and being creepy.
[39] The accused responded with an email sent at 6:42 a.m. the following morning:
Thank you sooo much, I appreciate the retort and am thankfull [sic] you have heard me … Lol not angry just thought it was strange and really creepy to look out my window and make eye contact with Dan … I am a nudist and quite often am not wearing clothes in my home thus, you can understand why I think this sort of behavior is creepy and its not the first time ive [sic] looked out my window only to see one of you staring into or what looks like staring into my suite especially when I make eye contact.
As for your son ive [sic] never engaged him in conversation and just once hes [sic] come out and held me hostage for a conversation he felt like having while I was watering … I would like for all of us to enjoy our home and do not harbor any animosity for any of you im [sic] just me and I would like to be left alone it costs me a great amount of money to have my space and I would like to be left to it . . . We all want to live and enjoy the property we pay to rent … I gave you folks the juicer and some kind words in hope that we can all understand each other and get along as much as needed to co‑exist … I wish you folks nothing but the best and will leave it to you … We both have some what different lifestyles and that’s just fine its what Vancouver is about … We don’t have to socialize together just live in peace and so far so good … Ive [sic] raised every complaint ive [sic] had with you people and its really not that dramatic lol so don’t sweat it I am the type of person who will always let you know where you stand with me, because if I let things fester in my mind we are all in trouble ...
No disrespect intended I wrote the letter so my words and demeanour would not be misinterpreted …
Thank you for your time … Have a greaaat weekend.
[40] On July 27, 2015, the accused sent an email to Mr. Lewis and Ms. Miller in which he stated:
Ms. Miller, Mr. Lewis, and occupants of the basement dwelling @ [address redacted] Sophia ……
I have asked that you please not leave your doors open …. Im averaging 2dead mice corpses a day in my suite (from the traps) my house is littered with traps and its embarrassing to explain to my guests and its a pain in the butt to avoid them as I walk around the house and down my stairs as the majority of them are in my staircase and predominantly the ones that catch the mice. Your lifestyle choices are affecting my life and household profusely please cease and dissist [sic] this behaviour……Please.
[41] On July 27, 2015, Mr. Binning sent an email to both the accused and Mr. Lewis suggesting that one of them was going to have to move out. It read:
This is to the both of you, as the landlord I’ve tried to provide you both with a decent and hopefully nice place to live, there is no such thing as great landlord or tennant [sic]. But I’ve been receiving Emails from the both of you comparing and complaining every week about this and that. Maybe you guys should flip a coin and decide who’s going to leave. This is not the way I want to continue this arrangement with the both of you. Maybe this is not a good partnership. So it’s up to the both of you to decide.
[42] Rather than moving the conflict between the tenants towards a resolution, Mr. Binning’s email had the opposite effect. The feud between the tenants escalated.
[43] It was clear to Mr. Lewis from Mr. Binning’s email that Mr. Binning was not prepared to take steps himself to evict the accused. As Mr. Lewis and his family had nowhere else to live, he was determined to stay in the lower suite and “fight for our rights”.
[44] At 1:36 p.m. on July 27, 2015, the accused sent the following email to Ms. Miller:
Just got Baljeets email bout you guys complaining, lol…... I suggest you folks find a new place to live there are plenty of basement suites in the community for you folks to live … Ive [sic] made plenty of improvements to this property and paid the lions share of the rent and bills around here … As I told you when you first moved in, you don’t fit in here…….Ive [sic] lived in this house for over a year now and we never had mice loud fights or people digging through the garbage in this house since Baljeets family bought it…….Ive [sic] made substancial [sic] improvements to this property and paid for it out of my own pocket…Where as you? Well haven’t done a thing but bitch whine and complain and screw up the way the house smells and bring rodents into our home….I suggest now that you’ve made it clear your [sic] not happy exercise your right to leave…..Cause after today you are no longer welcome…I even created a garden for you because you didn’t have the where for all to do it your self…You bring nothing but drama, mice and [sic] screw up the way this house smells.
[45] The following morning, July 28, 2015, Mr. Lewis received an email from the accused sent earlier that same morning at 3:06 a.m., which read:
Well I hope you had fun acting stupid tonight…I suggest you take your bad acting and use it to find alternative housing…You guys are sooo done here… And quite frankly your little gong show is a symptom of how bad you underestimate the situation your [sic] facing…
Im [sic] sure you know what a green light is…I suggest as strong as I can you leave this dwelling as soon as you can, but im [sic] pretty sure your [sic] not that smart…LMAO well talk later im [sic] sure
[46] Mr. Lewis understood the letters LMAO to mean “laughing my ass off”, and that the email was the accused’s way of signalling to Mr. Lewis that he and his family were going to have to move out. He felt threatened by the email and feared for his family’s safety.
[47] At 4:45 a.m. that same morning, the accused sent another email to Ms. Miller. It read:
Danny
make sure you show me that toothless binner grin again when we have our fun you goof.. Tick tock clown.
[48] Mr. Lewis testified that at approximately 2 p.m. that same day, he was alone in the lower suite’s living room watching television. He was sitting on a couch which was located against a large outside window. The window was covered with blinds but was open. He heard someone he assumed was the accused going up and down the main stairs to the upper suite several times. He heard a car pull up to the front of the house and shortly thereafter someone came down the stairs from the upper suite, walked to the outside of the open front window, and said:
An open window. This would be a perfect time to wrap up a murder.
And
Get out “shit birds”.
Mr. Lewis recognized the voice as that of the accused. He reported the incident to the Vancouver Police Department (“VPD”).
[49] Mr. Lewis testified that, a few hours later, he heard the accused return to his suite. The heat in the suite was turned up and heavy weights were repeatedly dropped on the upper suite’s floors.
[50] Both Mr. Lewis and Ms. Miller testified that shortly thereafter the accused covered half of the house’s main entrance foyer, as well as the door leading to the stairs accessing the upper suite, with plastic sheeting. They also saw a similar plastic sheeting had been placed on the floor of the accused’s van. There were also shovels and a long‑handled pruner in the accused’s van. On cross-examination, Mr. Lewis confirmed that the accused had told him the plastic was being installed to keep the rodents out of the upper suite.
[51] Mr. Lewis described another incident that took place approximately the same time when the accused approached him with one hand behind his back and said, “Hi sweetie, I have something for you”, and shortly thereafter, “get out while you can”.
[52] Mr. Lewis agreed on cross-examination that the accused had previously used the word “sweets” to describe some marihuana edibles he had offered to Mr. Lewis and Ms. Miller.
[53] By the end of July 2015, Mr. Binning had had enough and decided to evict both sets of tenants, ostensibly for the purpose of renovating the house. Ms. Miller testified that she received a formal eviction notice on August 4, 2015. Initially, both tenants told Mr. Binning that they would not leave. However, the accused ultimately requested and was granted by Mr. Binning two additional months in order to organize his affairs and he agreed to move out by early November. In contrast, Mr. Lewis and Ms. Miller maintained their refusal to leave and dispute resolution with the Residential Tenancy Branch was scheduled for mid‑October 2015.
[54] Between July 28 and September 15, 2015, there was a period of relative calm at the house. No emails were exchanged between the tenants during that period. Mr. Lewis testified that he and his family tried as best they could to avoid coming into contact with the accused.
[55] Mr. Lewis testified that he never observed anyone at the upper suite other than the accused, the accused’s girlfriend, Mr. Binning, and Mr. Binning’s brother. Ms. Miller testified that she had never been inside the accused’s suite.
[56] Both Mr. Lewis and Ms. Miller testified that neither of them had been the recipient of any threats or threatening behaviour from anyone other than the accused.
[57] On September 13, 2017, Mr. Lewis left for Kitimat for one week of work with his brother. He testified that although he continued to be concerned for the safety of his wife and stepson, he needed the money he would earn.
[58] On September 15, 2015, Mr. Binning received an email from the accused stating:
OMG dude your tenants downstairs have sunken to an all time low…They literally broke into my van to steal a bag of 2 litre Cider bottles I had in there…And ive [sic] had to change rooms for the 3rd time to avoid the door slamming that has gotten waaaay outta control … I will pray every day from here on in that they go in peace outta this home … Also the dad has taken to giving me the finger, doesn’t want to physically go with me but hell talk shit in the basement at the top of his lungs when hes [sic] full of liquor then hide when he sees me and steal my shit … What a coward …
[59] Marlon, who at the time of the trial is 27 years old, testified that he got along with the accused, but confirmed that his mother and Mr. Lewis did not, and the accused was confrontational towards Mr. Lewis. Marlon described the accused as being six feet two or three inches tall.
[60] Both Mr. Lewis and Ms. Miller conceded in cross-examination that Marlon is volatile and sometimes becomes angry and loud, especially when he has been drinking. Both agreed that prior to September 18, 2015, there had been instances of aggressive behaviour between Marlon and Ms. Miller, his mother, including explosive fights during which Marlon had struck his mother and hurt her.
[61] Marlon agreed on cross-examination that prior to the September 18, 2015 incident, he often fought with his mother when he drank and that the fights were usually loud and that he had hit his mother.
[62] Ms. Miller testified that on the morning of September 18, 2015, she was in her living room in the lower suite. She had not gone to work that morning because she was ill. She testified that she heard Marlon’s voice coming from the back of the lower suite saying, “What the fuck are you doing? Get the fuck out of here. Leave me alone.” She did not hear any other voice. Ms. Miller testified that she went towards the back of the suite and was confronted by the accused in her kitchen. He had a hatchet in his raised right hand. She had her back against the refrigerator. She recalled thinking that this was a bad situation. Ms. Miller’s next memory was of waking up in the hospital several weeks later.
[63] On cross-examination, Ms. Miller testified that she has no memory what had taken place during the morning of September 18, 2015 prior to the attack, including of any interactions she may have had with Marlon or of where she was in the lower suite when she heard Marlon’s voice. She also agreed that she has no memory of the clothing the attacker was wearing or of the expression on his face.
[64] Ms. Miller took strong offence to the suggestion put to her during cross-examination that it was Marlon who had attacked her with the hatchet after she and he had had a fight earlier that morning about his drinking.
[65] Marlon testified that when he woke up at approximately 8:15 to 8:30 a.m. on the morning of September 18, 2015, had a couple of beers in his bedroom and then had some food, and had gone to the back laundry room storage area of the lower suite to sort cans and bottles for recycling. On cross-examination, he said that he had consumed three beers, but became confused as to whether he had the beer before he began to sort bottles and cans or whether the beer he consumed was from a case of “Stella” he purchased from the proceeds of him sorting the empties and taking them to the liquor store.
[66] Marlon testified that at some point in the morning, he saw his mother in the living room. He agreed on cross-examination that he had had an argument with her, but could not remember what the argument had been about. He testified that he thinks he may have wanted to punch his mother, but he could not remember. Later in his cross-examination, he agreed that he was feeling very angry towards his mother that morning, but denied wanting to hurt her. Still later in his cross-examination, he said, “I hurt her somewhat” but could not remember how he had hurt her. He added that he had probably punched her but that he could not remember.
[67] As already mentioned, Marlon testified that after he had had some food, he was in the laundry room storage area at the back of the lower suite sorting bottles and cans for recycling when the accused entered the room from the carport by either opening or kicking in the door. Marlon testified that the accused hit him with a hatchet in the area of his right shoulder and in the middle of his head. He described the hatchet as having a blade that was approximately eight inches long and a handle approximately 18 inches long. He could not recall whether the hatchet handle had any colours on it.
[68] Marlon testified that the accused also hit him in the jaw with a sledgehammer, which he described as having a handle that was approximately two and one‑half feet long and a head with dimensions approximately eight inches by three inches.
[69] Marlon testified that, after being struck, he fell to the ground and the accused stepped over him and went towards the lower suite’s living room. Marlon testified that the accused was wearing tan‑colour pants and a white sleeveless T‑shirt. He did not see any markings on the accused’s body. Marlon testified that he was silent throughout the accused’s attack. He does not recall whether he blacked out at any time. He denied having done anything to provoke the accused.
[70] Marlon testified that he ran out the back door to a Buy Low grocery store in order to get help.
[71] Marlon was taken to the hospital where he stayed for four days. His injuries were a gash and laceration to his right shoulder, a gash and laceration down the middle of the top of his head, and a depressed fracture of his skull.
[72] Ms. Claudia Bialostozky was an employee of the landscaping company that had rented the garage at the back of the residence immediately to the south of the house. As at September 2015, she had been with the company for approximately four years.
[73] During the mid‑morning of September 18, 2015, Ms. Bialostozky was at the rented garage retrieving some Christmas lights that the company was going to install for a client. She was alone. She heard what she described as a loud scream. From the tone of the voice and its pitch, she concluded that it definitely came from a male. She testified that she had never heard anything like it before. It was “guttural” and almost “inhuman”. It had come from the house. She estimated that it lasted for a few seconds.
[74] Ms. Bialostozky waited in the garage for less than a minute. On cross-examination, she said she waited between 10 and 20 seconds. She was surprised and scared. She then went outside into the lane in order to try and determine what had happened. She saw a young white male with dark hair and wearing a white T‑shirt, approximately in his mid‑twenties, “kind of running” out of the house and into the laneway. His face and head were covered with blood. He was crying and he started running more quickly south in the laneway. He was alone.
[75] Ms. Bialostozky asked if she could help him, but he just looked at her and kept running south.
[76] A short time later, another witness, Christie Donnelly, who lived in the vicinity, was driving northbound in the laneway and saw a person with dark hair staggering towards her vehicle in the laneway. As she got closer to him, she saw that his head was covered with blood.
[77] Ms. Donnelly stopped next to Ms. Bialostozky and asked if she had seen the person or knew what was going on, and whether the person was all right. This conversation lasted less than one minute. Ms. Donnelly called 9‑1‑1 and reported what she had seen. She drove around the block to the front of the house in order to provide the address of the incident. At no time did she see anyone enter or leave the house.
[78] Meanwhile, Ms. Bialostozky went to the back door of the residence to the south of the house and knocked on the back door. No one answered. She decided to call the police and went to the front of the residence in order to determine the address. She returned to the backyard and called her employer to inform him of what was happening. Other than the approximately 15 seconds it took for her to move from the back door to the front and return, Ms. Bialostozky was generally on the lookout for anything happening at the back of the house. She testified that she definitely would have seen anyone leaving the rear of the house. No one did so.
[79] However, as she returned to the backyard of the residence next door, she noticed the accused standing on the back balcony of the house with a drink in his hand, looking at her. She returned to the laneway and called the police. As she did so, the accused, whom she had seen approximately six times over the course of the previous year, came into the laneway and started “stomping” towards her. She described him as approximately five feet five inches tall, he was dressed in a bright yellow polo shirt and was very clean looking. She described his appearance as “spit and polished”, which was unlike the casual or work clothes attire she had always seen him in previously. He had noticeable tattoos on both arms. She saw no signs of blood on his clothing or body. It appeared to Ms. Bialostozky that the accused had just showered.
[80] The accused stopped less than two feet away from her and began mimicking what she was saying on the telephone to the police, in what she described was an unnatural and mocking manner. She recalled that the accused had a lit cigarette in one hand and a whiskey glass full of liquid in the other. She smelled alcohol.
[81] Ms. Bialostozky ended the call to the police and returned to the garage, as she had been instructed to do by the police. Ms. Bialostozky saw no one else enter or leave the house until the police arrived.
[82] At approximately 10:15 a.m. on September 18, 2015, the VPD received a call regarding the incident at the house. Detective Constable Tim Russell was assigned the role of lead investigator. Officers were dispatched to the scene and Detective Russell initiated the steps necessary to obtain a warrant for a search of the house.
[83] Constable Cameron Mackay, who was on patrol in the area, received a dispatch at approximately 10:17 a.m., indicating that an injured male was at the Buy Low grocery store at Fraser Street and 45th Avenue. Constable MacKay arrived at the store at approximately 10:30 a.m. and saw that Marlon was covered in blood. He had a four‑to six‑inch gash in the upper right portion of his chest and another gash of equal size in the upper portion of his head above his left eye. Civilians at the store were attending to Marlon.
[84] Marlon told Constable Mackay that his mother had been hurt. He also stated that he did not see her get hurt and could not explain why he believed she had been hurt. Constable Mackay relayed what he had been told to police dispatch.
[85] An ambulance arrived shortly thereafter and Constable Mackay accompanied Marlon to the hospital where he seized Marlon’s shirt, pants, shoes, and socks by placing them initially in a large plastic bag and later in individual paper bags. The shirt and pants were saturated in blood. Constable Mackay believes that there was also a quantity of blood on Marlon’s shoes and socks.
[86] Acting Sergeant Shona Brunton received a radio call from police dispatch at 10:17 a.m. that a male covered in blood had been seen leaving the house. She arrived at the front of the house at 10:35 a.m.
[87] Constable Keith Biln arrived at the house at approximately 10:38 a.m., shortly after Sergeant Brunton had arrived. He parked his marked vehicle across Sophia Street, directly in front of the house. He exited his vehicle carrying an assault rifle. He saw the accused standing alone on the front balcony of the house drinking from a clear glass which looked to contain some cola.
[88] Both Constable Biln and Sergeant Brunton saw that the accused was wearing a yellow golf shirt. Constable Biln testified that the accused was wearing jeans and that his arms were covered in tattoos. There was no indication from his appearance that he had been involved in a violent incident.
[89] On his way to the scene, Constable Biln had obtained information on the names of the occupants of the house. He asked the accused if he was Stephen and began a conversation with the accused which he described as low key. The accused was calm, casual, articulate, and seemed almost jovial. Constable Biln asked the accused to come outside, because he had information that something had occurred in the house. The accused asked if it had to do with a tree next door. He also indicated several times that he would come outside but did not.
[90] By this time, several police vehicles and officers had arrived at the scene. Constable William Demiris arrived in a police wagon and took up a position on Sophia Street across from the house.
[91] The accused began to focus on the weapons the police were carrying and appeared to become quite agitated and stressed. He asked that all of the police officers put down their weapons and take off their gun belts. He told Constable Biln that he was an American who had been in the marines, that he had an M‑16 rifle, that he had booby‑trapped the house, and that he had laid land mines in the yard. He also said that he was going to go inside and get something, which Constable Biln took to mean his gun. Constable Biln took cover across the street.
[92] Constable Brent Kazuta arrived at the scene at approximately 10:30 a.m. and took up a position at the northwest corner of the house in the laneway.
[93] Constable Ong arrived at the scene at approximately 10:35 a.m. and took up position in the rear lane at the south of the house.
[94] Constable Craig Lapthorne arrived at the back lane of the house at approximately 10:37 a.m. and took up a covert position across the lane from which he could see the rear of the house. He saw the accused emerge from the upper suite onto the back deck of the house wearing a yellow polo shirt and jeans. He had tattoos on his arms. He dumped the contents of a garbage bag onto the deck and returned inside.
[95] Later the accused emerged with a silver dumbbell, lifted it, and put it down on the patio deck.
[96] Constable Lapthorne testified that the accused oscillated between being annoyed and extremely agitated, as if he could not believe that the police were there. On cross-examination, he described the accused’s behaviour as controlled anger and frustration.
[97] Sergeant Shaun Deans arrived at the scene at approximately 10:50 a.m. and set up position in the lane at the rear of the house. He had received information that there may be a female in the house in need of assistance. He and other members of his team were planning to enter the house, but abandoned the plan when they heard on the radio that the accused had a gun and that the house might be booby‑trapped.
[98] Sergeant Richard Lee, a member of the VPD’s canine unit, arrived at the rear of the house with his dog at approximately 10:50 a.m. He parked his police vehicle directly behind the van that was parked in the parking space at the rear of the house. Ultimately, he took up position at the northeast corner of the house.
[99] Sergeant Jeff Neuman arrived at the scene at approximately 11 o’clock a.m. and set up position in the lane at the rear of the house.
[100] Sergeant Aaron Kazuta and Corporal Cordick each testified that they arrived at the scene at approximately 11:30 a.m. and took up a position at the northeast corner of the house. Each heard occasional angry and hostile‑sounding yelling coming from the rear balcony of the house. Sergeant Kazuta saw an object thrown from it. Constable Cordick heard glass breaking inside or close to the house.
[101] Various of the police officers testified that before the accused surrendered, there were several occasions when he came out onto the rear balcony of the house in an agitated state, yelling and screaming at the police officers. The accused also threw several items at the police vehicles that were parked in the lane, including flowerpots, a hammer, a brick, a bowl, and something that appeared to be made of concrete.
[102] Detective Constable Timothy Rich arrived at the scene at some point in time during the standoff and was assigned the role of lead investigator. He attempted to verbally engage the accused during one of the occasions when he was out on the rear balcony, but the accused swore at him and returned inside when Detective Rich mispronounced the accused’s name.
[103] Over the course of the standoff at the house, Constable Biln heard smashing noises inside the house and some windows in the house next door to the south being smashed. On at least one occasion, the accused reappeared on the front balcony with a drink and smoking a cigarette. He said, “Where are you, Bob? If you don’t come out, you’re going to die”.
[104] Constable Biln testified that, throughout his interactions with the accused, the accused appeared lucid and did not appear to be impaired by drugs or alcohol.
[105] From approximately noon to 12:30 p.m., there was a period of quiet during which the accused remained inside the house and did not engage with the police at all. At approximately 12:40 p.m., the accused came out of the front door of the house wearing a different shirt and surrendered to the police. He was arrested, placed in the rear compartment of the police wagon, and given a Charter warning by Detective Campbell and Detective Anita Jackson for two counts of attempted murder.
[106] Detective Jackson and Detective Campbell testified that the accused was very loud, agitated, and aggressive, stating that he was a “freeman of the land” and did not recognize the police or the courts. At one point, he lunged at Detective Campbell and attempted to kick him. The officers decided not to attempt to “bag” the accused’s hands for forensics examination, given his level of agitation.
[107] The accused was searched and the Charter warning was read to him over top of his yelling. Constable Demiris described the accused’s demeanour as hostile, belligerent, and almost combative. In cross-examination, Constable Demiris agreed that he does not recall noticing any indication of evidentiary value on the accused’s body or clothing while he was searched, and that had such evidence been present, he would likely have seen it.
[108] None of the police officers who attended the scene saw anyone other than the accused or other officers enter or leave the house prior to the accused being arrested.
[109] The accused was transported to the city jail by Constable Demiris, where custody of the accused was transferred to jail staff. The accused remained hostile and combative while swabs of his hands were taken and his clothing was seized.
[110] Constable Demiris noticed some dried blood on the wall of the police wagon where the accused had been seated with his hands cuffed behind his back. He agreed that the blood could have been caused by the accused’s handcuffs cutting into his wrists.
[111] Shortly after the accused surrendered, Sergeant Neuman and Sergeant Flewelling entered the lower suite from its rear entrance. Both saw Ms. Miller sitting on the floor in a large pool of blood. Sergeant Neuman was not precise about Ms. Miller’s exact location in the lower suite, except to say that her back was propped against the kitchen’s north wall. She had a gash in her head which was bleeding. There were two hatchets on the floor where she was sitting.
[112] Ms. Miller was unable to speak. Sergeant Flewelling testified that Ms. Miller was found against the wall in a small alcove just outside the east entrance to the kitchen. He confirmed that it would not have been possible to see Ms. Miller from the rear entrance to the lower suite. Ms. Miller was immediately taken to hospital via waiting ambulance, accompanied by Constable Lapthorne. He noticed that she had a wound on the top of her head.
[113] Sergeant Lee testified that he entered the house from the front entrance and saw Ms. Miller on the floor in a pool of blood and blood‑soaked hair. He marked her location on CAD, a CAD drawing (Exhibit 17A) as being in the small alcove between the kitchen and the western-most entrance to the living room.
[114] Sergeant Lee testified that as he and the other officers who entered the house were in the process of moving through the house to secure and contain it, they were well aware of the need to ensure the evidence was not impacted or contaminated.
[115] Shortly after the accused was arrested, Sergeant Kazuta entered the house through the front door and, together with other officers, including Constable Cordick, went up the stairs into the upper suite. The stairs were littered with broken beer bottles. Sergeant Kazuta and his team systematically ensured that the upper suite was secure and unoccupied and then left the house down the same stairs and out the front door. Shortly before exiting the house, Sergeant Kazuta saw Ms. Miller on the floor in the lower suite covered in blood. She was positioned closer to the front of the lower suite than to the rear of it.
[116] Constable Jennifer Daniel attended the hospital and obtained a statement from Marlon. She noted that Marlon’s speech was delayed. She had previously been alerted by another officer that his mental capacity was slow. At approximately 13:13 p.m., Constable Mackay was present at the hospital when Constable Lapthorne seized Ms. Miller’s clothing, also placed those items into individual paper bags. Approximately three hours later, he turned over possession of all seized clothing to Constable Packham at the police station.
[117] On September 18, 2015, Corporals Scot Ramsay, Carrie Cox, and Jennifer Jarvis were members of the VPD’s Forensic Identification Team. Corporals Ramsay and Cox initially attended the city jail and photographed and obtained swabs from the accused. Constable Cox described the accused’s demeanour as hostile and uncooperative.
[118] They left the jail at approximately 3:05 p.m. and travelled to the house. Detective Jackson was there when they arrived at approximately 3:30 p.m. Detective Jackson had re‑attended the house with the search warrant that had been obtained by Detective Russell. She provided it to Corporal Ramsay.
[119] Corporals Ramsay and Cox proceeded to the residence immediately south of the house, inspected it, and seized various items that had been thrown through various of the windows along its north side facing the house. Corporal Jarvis arrived at the house at approximately 5:20 p.m., after Corporals Ramsay and Cox had completed the investigation of the residence to the south.
[120] Each of the upper suite and the lower suite was considered by the officers to be a different crime scene.
[121] Before entering the house, all forensic identification officers donned clean personal protective gear (PPG), comprising paper coveralls or bunny suits, booties, and gloves. PPGs were discarded and new ones donned each time they moved from one crime scene to another or from outside to inside the house in order to ensure the integrity of the crime scene and that any chance of a crime scene being contaminated was minimized.
[122] Constable Ramsay testified that when he went to the upper suite, he also discarded his bunny suit. He did not put on a new one. Rather, he entered the upper suite with new booties only. He did not touch anything with his hands or his clothing.
[123] Constable Cox testified that she probably did not don a new bunny suit when she entered the upper suite because she was the exhibits officer and was not concerned about the possibility of coming into contact with blood. She did, however, put on new booties and two pairs of gloves each time she entered the upper suite.
[124] Constable Ramsay took detailed photographs of the outside areas of the house, as well as first the lower suite and then the upper suite.
[125] Detective Jackson testified that while Constable Ramsay was photographing the lower suite, she peered into it from the rear entrance without entering any part of the lower suite. She had been specifically instructed not to do so to ensure that there was no cross‑contamination of the area. She testified that she saw a large pool of blood and matted hair on the kitchen floor. She testified that at no time did she or any part of her PPG touch anything in the area.
[126] Constable Ramsay’s photographs show a large pool of blood in the approximate location where Sergeants Lee and Flewelling testified that they saw Ms. Miller sitting on the floor. They also show what was obviously matted hair on the kitchen floor or on the floor nearby. Constable Ramsay testified on cross-examination that the large pool of blood and matted hair could not have been seen from the lower suite’s rear doorway.
[127] Detective Jackson testified that after looking through the lower suite’s rear doorway, she went around the house, and entered it through the front doorway. She proceeded up the stairs to the upper suite, which was the area she had been assigned. She attended with Constables Ramsay and Cox and Jarvis. She opened the clothes washer and dryer. The washer was empty but the dryer contained a small load comprised of two bath towels, two black tank tops, and a beige pair of pants. Although the dryer was cold, the items in it were not wrinkled and smelled of fresh fabric softener. To Detective Jackson, they looked and smelled as though they had recently been dried. On cross-examination, she agreed that the items in the dryer could have been there for up to 24 hours.
[128] Detective Jackson testified that, based upon her experience of having done a substantial number of laundry loads for her family of five, the load she saw in the upper suite’s dryer would likely have taken approximately 45 minutes to wash and 45 to 60 minutes to dry.
[129] Prior to leaving the upper suite, Detective Jackson walked through into its kitchen, and then through the vertical blinds that covered the sliding doorway leading onto the rear balcony. She retraced her steps and left the house the way she had entered it.
[130] Constable Jarvis confirmed on cross-examination that no blood was found on any of the upper suite’s taps, shower doors, or in any of its drains, with the exception of a small sample that was found on the bathtub’s left tap, which could have been blood. She also confirmed that nothing of forensic significance was found on either the front interior or rear exterior staircase leading to the upper suite or in any of the items found in the upper suite’s clothes dryer.
[131] A narrow smear of blood approximately one centimetre long was found on one of the vertical blinds covering the rear sliding patio door. It was swabbed and marked as Exhibit “26”.
[132] Constables Ramsay, Cox, and Jarvis completed their initial forensic examination of the upper suite at approximately 8:30 p.m. on September 18, 2015. The house was guarded by police officers until morning.
[133] The following morning, Constables Ramsay, Cox, and Jarvis re-attended the house and commenced their forensic examination of the lower suite. Their work was not completed until approximately 9:30 p.m. that evening. Additional exhibits were seized from both the lower suite and the upper suite.
[134] Constable Jarvis also confirmed that the only prints that were identified in the lower suite belonged to either Marlon or Ms. Miller. No prints of value were found on either of the two hatchets which were found in or near the large pool of blood where Ms. Miller had been found.
[135] On September 23, 2015, Detective Russell obtained a statement from Marlon, as well as a blood sample for DNA analysis. On October 1, 2015, Detective Russell obtained a blood sample from Ms. Miller for DNA analysis. However, he was unable to obtain a statement from her as she was in the hospital and unable to communicate.
[136] When she woke up in the hospital, Ms. Miller testified that she was confused and had a sense of urgency about Marlon and wanting to see him. She knew that she had been injured, but she did not know how. Her injuries included a large laceration to the head, a fractured skull, frontal lobe brain damage, three broken vertebrae, a broken rib, a punctured lung, and various lacerations to her upper body and head.
[137] She testified that she heard a nurse tell members of her family who were present that they were not to discuss the incident with her or of the police taking photographs of her.
[138] Detective Russell obtained a statement from Ms. Miller on October 20, 2015. She did not mention anything about the accused, other than that he was the tenant in the upper suite. However, she testified that she recalls later hearing her employer, who was visiting her in the hospital, saying words to the effect that she did not realize they were having so much trouble with the upstairs tenant. She also testified she recalls Marlon saying to her while she was in the hospital, “that the psycho upstairs attacked us with a hatchet”.
[139] She testified that, initially, she had had an image in her mind of the accused being in front of her with a hatchet, but that she thought it was a dream and did not mention it to Detective Russell. She testified that after hearing what she did from her employer and Marlon, she started putting the pieces together in her mind, and that after spending six weeks in the hospital and a further six weeks in rehabilitation and therapy, her memory became clearer and she realized that the image she had of the accused with a hatchet was a memory, not a dream.
[140] On January 12, 2016, Ms. Miller sent an email to Detective Russell advising of her memory of the accused coming towards her with a hatchet in his raised hand and of him striking her with it. She denied that the email was prompted by anything Marlon had said to her. She admitted on cross-examination, however, that despite what she wrote in her email to Detective Russell, she actually had no memory of the accused actually striking her with a hatchet and, in this regard, her memory had changed over time.
[141] On cross-examination, Marlon denied having spoken to his mother while she was in the hospital about what happened. When the transcript of his evidence at the preliminary inquiry on May 11, 2017 was put to him, in which he stated he had visited his mother while she was in the hospital almost every day for three months, and that he had spoken to her about what had happened probably “15 or 16 times”, he stated that his memory during the trial is much better and “much fresher” than it was at the preliminary inquiry some six months earlier.
[142] Both Ms. Miller and Marlon conceded on cross-examination that there was an incident after Ms. Miller’s discharge from the hospital when Marlon and she had a significant and violent fight. Marlon also conceded that his mother told him she was afraid of him.
[143] Ms. Miller testified that, since the incident on September 18, 2015, she has not returned to work and Marlon has not lived with her. He is currently living in a supported care facility.
[144] Ms. Miller has commenced a civil proceeding against Mr. Binning and his mother regarding the injuries she sustained on September 18, 2017.
[145] Detective Russell submitted Ms. Miller and Marlon’s blood samples, together with several other exhibits obtained from the house, including clothing, swabs, and the two hatchets, to the RCMP laboratory for DNA analysis.
[146] In June 2017, Detective Russell received a series of additional samples from the RCMP and forwarded them to Maxxam Analytics (“Maxxam”), a private forensic laboratory located in Guelph, Ontario, for DNA analysis. He did so because none of the accused’s DNA had been found on any of the exhibits that had been seized by the police. In September 2017, he obtained a DNA sample from the accused and also forwarded it to Maxxam.
[147] Detective Russell agreed on cross-examination that, based upon the information the police had obtained from Marlon as to the identity of the person who had attacked him, the accused became the sole focus of the police investigation from the outset and that no other person was investigated. Detective Russell was aware that the accused had ongoing issues with the VPD and that he had previously obtained a settlement from the VPD in respect of an incident that had occurred during a prior arrest.
[148] Detective Russell also agreed on cross-examination that the upper suite was searched by the VPD and nothing of forensic significance had been located there, including on the accused’s clothing and footwear, other than Exhibit 26. He also agreed that the accused’s fingerprints were not found anywhere in the lower suite.
[149] He confirmed that there was no investigation of whether drugs or alcohol had been consumed in the lower suite or that the injuries sustained by Marlon could have been self‑inflicted.
[150] Counsel are in agreement that the following expert evidence called by the Crown during the voir dire at the opening of the trial is evidence on the trial proper.
[151] Mr. Frasca is employed as a technical operations leader in the biology department at the RCMP’s forensic laboratory in Vancouver (the “Lab”). He was qualified without debate as an expert in the recovery and identification of bodily fluids and specifically searching for, identifying, collecting, and preserving biological material from evidence provided to him by others.
[152] Mr. Frasca described the procedures and protocols in place at the Lab for ensuring the chain of custody, non‑contamination, and safe storage of both exhibits received by the Lab and any samples taken from the exhibits while they are in the Lab’s possession. This is done to ensure, to the extent possible, that the evidence received by the Lab is unaltered.
[153] Mr. Frasca also described the computer system known as LIMS (Laboratory Information Management System) which is used by the Lab to identify and track all exhibits and samples that are received and analyzed. Each exhibit and sample is given a unique barcode identifier by LIMS.
[154] Mr. Frasca testified that on November 17, 2015, the Lab received eight exhibits from the RCMP in relation to the incident. The LIMS system assigned Identifier 2015N‑008982 to those exhibits.
[155] Mr. Frasca testified concerning his analysis of four of these exhibits designated LIMS Exhibits 2, 3, 4, and 5, which were Vancouver Police Exhibits 21, 26, 36, and 38 respectively. The exhibits included swabs taken from the upper suite and from two hatchets that were found at the scene. Mr. Frasca conducted Hemastix tests on various samples taken from the four exhibits. Those tests are highly sensitive to the presence of blood but cannot confirm it. If the test is positive for blood, Mr. Frasca then conducted a hemochromogen test on the sample, which confirmed whether or not blood was present.
[156] Positive results were received from all of the Hemastix tests. Positive results were received from all of the hemochromogen tests, with the exception of LIMS Exhibit 3, which is VPD Exhibit 26, the swab taken from the bloodstain on the rear patio door blind.
[157] Two separate hemochromogen tests of this swab were negative for the presence of blood, possibly because hemochromogen testing requires a concentrated sample in order to be effective and the sample tested was too diffuse.
[158] Mr. Frasca also submitted two additional samples of known DNA which had been received from the RCMP, LIMS Exhibits 7 and 8 respectively, for analysis by the lab.
[159] On cross-examination, Mr. Frasca agreed that the porosity of an object’s surface plays a role in how well DNA is retained on the surface. Smoother surfaces are generally less receptive to the retention of DNA, while textured surfaces, like the rubberized and grooved grip of the hatchet handles he analyzed, are generally better able to retain DNA. Mr. Frasca also agreed that the DNA can be deposited on an object by different people at different times, or indeed transferred from one object to another. He agreed that it is possible for DNA to remain in place on an object for a lengthy period of time, and that DNA present on the exhibits prior to the blood being found deposited could have contributed to a mixed DNA profile being found.
[160] Mr. Frasca was an impressive witness who gave his evidence in a clear, objective, and helpful manner.
[161] Mr. Price is employed as both a biology evidence recovery examiner and a biology reporting scientist at the Lab. He was qualified without debate as an expert in the interpretation of body fluids, identification test results, the interpretation and comparison of DNA profiles, and the application of statistical significance to DNA matches.
[162] Mr. Price described in detail the intricacies of the forensic DNA analyses conducted by the Lab, including the extraction of DNA, the means by which it is isolated from other biological components, the quantification of the amount of DNA that is extracted, and the detection of X and Y chromosomes, and the steps taken to generate a DNA profile. He also explained the calculation and statistical significance of DNA matches.
[163] Mr. Price testified that DNA profiles can be determined to be of mixed origin, consistent with having originated from two or more individuals. In those cases, the profiles can exhibit major components where a single individual contributes a large amount of DNA, minor components where one or more individuals contributes a much smaller percentage of the DNA, and trace components, which do not provide enough information to allow for reliable comparison.
[164] Mr. Price analyzed eight samples from which DNA had been extracted (LIMS Exhibits 1 to 8 inclusive). He set out his findings in his report dated January 22, 2016, which is marked as Exhibit 2 in these proceedings. He opined that:
a) the DNA typing profiles obtained from LIMS Exhibit 2 is that of an unknown male individual (“Male 1”), who was not Marlon Brownsberger;
b) the DNA typing profiles obtained from several samples taken from LIMS Exhibits 3, 4, and 5 match that of Catriona Miller. LIMS Exhibit 3 was the swab from the upper suite’s rear blind;
c) the partial DNA typing profiles obtained from other samples taken from the LIMS Exhibit 5 match that of Marlon Brownsberger;
d) the DNA typing profiles obtained from other samples taken from LIMS Exhibit 4 are of mixed origin, each consistent with having originated from Catriona Miller, plus a trace component from which no meaningful comparison could be made;
e) the DNA typing profiles obtained from other samples taken from LIMS Exhibit 5 are of mixed origin, consistent with having originated from at least three individuals, one of whom was Catriona Miller; and
f) the DNA typing profiles obtained from other samples taken from the LIMS Exhibit 4 is of mixed origin, consistent with having originated from at least three individuals, including at least one male.
[165] Mr. Price analyzed two additional samples from swabs taken from the stairway to the accused’s suite and set out his findings in a report dated April 27, 2016. Testing did not confirm the blood was present on those samples, but Mr. Price was able to opine that the DNA typing profile was that of Male 1.
[166] On cross-examination, Mr. Price confirmed that DNA can remain on clothing after it is washed, including with detergent. He also confirmed that the Lab occasionally outsources its analysis work to other laboratories, including Maxxam, but that these laboratories are audited by the RCMP to ensure compliance with RCMP guidelines and testing protocols.
[167] Mr. Price agreed that the Lab does not attempt to compare DNA profiles from samples to known profiles until the proper DNA profile from the sample has first been created and interpreted. He would have concerns about the potential for “confirmation bias” if an analyst started with a known DNA profile to look for comparisons while creating a DNA profile from the sample.
[168] Mr. Price testified that the current goal of the Lab is to introduce Y-STR, or short tandem repeat testing, within the next few months.
[169] Mr. Price was also an impressive witness whose evidence was objective, thorough, and very helpful to the court.
[170] Mr. Dabbour graduated with an honour’s Bachelor of Science degree from the University of Toronto in 2014. After a brief internship with the Peel Regional Police’s Forensic Identification Services, he became employed by Maxxam. He is currently a forensic DNA analyst, as well as a paternity reporting analyst at Maxxam.
[171] Maxxam has, since the year 2000, been accredited by the Standards Council of Canada as competent to perform various forensic testing in accordance with recognized standards, including DNA testing. It is audited every two years by the Standards Council of Canada to ensure its ongoing compliance with required standards.
[172] Since 2001, Maxxam has provided a significant amount of forensic analyses for the RCMP. It is audited by the RCMP annually to ensure its ongoing compliance with RCMP standards.
[173] Despite his relatively few years of experience in the field, the evidence demonstrated to my satisfaction that Mr. Dabbour met the required threshold to be qualified as an expert in the interpretation of bodily fluids identification test results, the interpretation and comparison of DNA profiles, and the application of statistical significance to DNA matches, including the determination of frequencies of DNA profiles in the population.
[174] Mr. Dabbour testified that a Y-STR DNA analysis differs from the normal autosomal STR DNA analysis in that it is specific to the Y chromosome found only in male DNA, whereas autosomal STR DNA analysis creates profiles covering both males and females. The Y chromosome is transmitted from a father to his son as a block which results in all males in the lineage having the identical Y chromosome. The autosomal STR DNA analysis targets 15 regions of the DNA or 13 chromosomes. The Y‑STR DNA analysis targets 27 regions and is useful in isolating the trace elements of male DNA in an abundance of female DNA.
[175] Mr. Dabbour prepared two reports dated September 12, 2017 and October 5, 2017 respectively, which were collectively marked as Exhibit 3 at the trial.
[176] Mr. Dabbour conducted a Y‑STR analysis on four samples of DNA that were provided to him, identified as LIMS Exhibits 2‑AA01, 4‑AA01, 5‑AA01, and 5‑AD01. He also examined a reagent blank sample from which he was able to confirm that no contamination had been detected in the four samples.
[177] Mr. Dabbour opined that the Y‑STR DNA profile obtained from Exhibit 2‑AA01 and 4‑AA01 are indicative of having come from the same male source. In other words, they came from either the same male person or from two males with the same patrilineal ancestry.
[178] The partial low‑level Y‑STR DNA profiles in Exhibits 5‑AA01 and 5‑AD01 are mixtures of DNA from at least three and two males respectively, and were not suitable for comparison purposes.
[179] Mr. Dabbour reported that he performed Y‑STR DNA analysis to determine whether a sixth sample received by him, being noted “SP”, would be excluded as a source of the Y‑STR DNA profile obtained by Exhibit 2‑AA01 and the major Y‑STR DNA profile obtained from Exhibit 4‑AA01. He opined that SP and his patrilineal male relatives could not be excluded as the source.
[180] In terms of statistical significance of the finding in his first report, Mr. Dabbour opined that, based upon the United States Y‑STR database, if 8,696 males were selected at random, he would expect with 95 percent confidence that one of them would have the Y‑STR DNA profile obtained from LIMS Exhibits 2‑AA01 and 4‑AA01. Mr. Dabbour could not provide an opinion on how many males in British Columbia would have these profiles.
[181] I found Mr. Dabbour to be an excellent witness with remarkably detailed and in-depth knowledge of his field. He gave his evidence in a candid, objective, and forthright manner. I have no hesitation accepting it in its entirety.
[182] Pursuant to s. 655 of the Criminal Code, the accused admitted the following facts by way of Exhibit 26 in these proceedings:
a) On the morning of September 18, 2015, Vancouver Police Department members (the “Police”) attended to [address redacted] Sophia Street, Vancouver, British Columbia (the “Investigative Scene”) to investigate a report of a person having been assaulted with an axe (the “incident”).
b) No persons entered or exited the Investigative Scene from the time the Police attended the scene at approximately 10:37 a.m., September 18, 2015, until the Accused exited the front of the [address redacted] Sophia Street residence at approximately 12:40 p.m.
c) There are no issues regarding the continuity of the Investigative Scene from the time the Police attended the scene at approximately 10:37 a.m., September 18, 2015, until the Police left the scene at approximately 9:30 p.m., September 19, 2015.
d) There are no issues regarding continuity, examination or contamination of any exhibits seized, processed, or analyzed by police in this investigation.
e) A number of exhibits seized by the Police during the investigation were transferred to RCMP Forensic Laboratory Services for DNA analysis. There are no issues regarding continuity, contamination, or analysis of the exhibits while they were under the control of the RCMP Forensic Laboratory Services or being delivered to or from the RCMP Forensic Laboratory Services.
f) In the summer of 2017, a number of DNA extracts and reagent blank created by the RCMP Forensic Laboratory Services from the police exhibits were transferred to Maxxam Analytics in Guelph, Ontario, for further DNA analysis. There are no issues regarding continuity, contamination, or analysis of these DNA extracts and the reagent blank while under the control of Maxxam Analytics or during transfer to or from Maxxam Analytics.
g) On September 26, 2017, the Police lawfully executed a DNA warrant and obtained from the Accused a blood sample suitable for DNA analysis. The blood sample of the Accused was couriered to Maxxam Analytics for DNA analysis. There are no issues regarding continuity, contamination, or analysis of this blood sample of the accused when the Police obtained and maintained control of the blood sample, while the blood sample was under control of Maxxam Analytics, or during transfer to or from Maxxam Analytics.
h) The laboratory reports included in Exhibits 2 and 3 of these proceedings are admitted for the truth of their contents.
i) As a result of the incident, Marlon David Brownsberger suffered a 10‑centimetre laceration to the top of his skull, a fractured skull, and a 10‑centimetre laceration to his right shoulder.
j) As a result of the incident, Catriona Mary Miller suffered multiple lacerations to her skull, multiple skull fractures, contusion and hemorrhaging of the frontal lobes of her brain, displacement of her top front teeth, three fractured vertebrae, a fractured rib, and a punctured lung.
[183] The accused did not testify and did not call any other evidence at the trial.
[184] That the onus rests with the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence and is one of the principal safeguards meant to ensure that no innocent person is convicted. It is the golden thread of our criminal justice system: R. v. Lifchus, [1997] 3 S.C.R. 320 at paras. 13 and 27.
[185] Where a case is made entirely of circumstantial evidence, the court must be satisfied not only that those circumstances were consistent with the accused having committed the act, but also inconsistent with any other rational conclusion: Hodge’s case (1838), 168 E.R. 1136, per Baron Alderson.
[186] The Crown concedes that there are frailties in its case against the accused, but submits that the combination of corroborative direct evidence and a powerful array of circumstantial evidence establishes, beyond a reasonable doubt, that the accused was the person who attacked Ms. Miller and Marlon. The Crown points to the following direct evidence:
· the evidence of hatchets and blood at the scene;
· Marlon’s evidence as to what took place;
· Ms. Miller’s corroborative testimony of hearing Marlon yelling, walking toward the sound, and confronting the accused in the kitchen with a raised hatchet;
· Ms. Miller’s DNA having been found on the upper suite’s blind; and
· the Y‑STR DNA on the handle of one of the hatchets matching the accused’s profile.
[187] The Crown also points to the following circumstantial evidence linking the accused to the attacks on Ms. Miller and Marlon:
· the animosity and ongoing disputes between the accused and the lower suite tenants which provides a motive for the attacks;
· Mr. Roan’s evidence that the accused possessed hatchets matching the description of those used in the attack;
· the presence of the accused in the house at the time of the attack which provided the accused with an opportunity to carry them out and no one else having been seen entering or leaving the house;
· the accused’s unusual spit and polished appearance shortly after the attacks; and
· the accused’s behaviour during the police standoff, which is consistent with him wanting to buy time to ensure no incriminating evidence was found.
[188] In R. v. Awasis, 2012 BCPC 573, Provincial Court Judge Bagnall set out at para. 10 a helpful summary of what triers of fact consider when determining the credibility and reliability of a witness:
a) the external consistency of the evidence given, whether it is consistent with the independent evidence that has been accepted;
b) the existence of prior inconsistent statements or previous occasions where the witness has been untruthful;
c) the internal consistency of the testimony, whether the witness’s evidence changes while the witness is testifying;
d) any motive that the witness might have to lie or mislead the court;
e) the ability of the witness to originally observe, to record in memory, and to recall the event;
f) the attitude and demeanour of the witness, whether he or she is evasive, belligerent, or inappropriate in response, particularly during cross-examination; and
g) upon the application of common sense, is the evidence impossible, improbable, or unlikely?
[189] Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Moreover, even a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.) at 526.
[190] Each of Mr. Roan, Ms. Bialostozky, and Ms. Donnelly gave his or her evidence in an objective, careful, cogent, and clear fashion. None had any motive to mislead. I have no hesitation accepting as credible and reliable their evidence in its entirety. I should add that I find it highly doubtful that Mr. Roan fabricated his testimony regarding seeing the accused carrying hatchets with brightly coloured handles.
[191] Although Mr. Binning struggled with some of his evidence regarding the timing of events, I generally found him to be a credible witness whose evidence regarding material facts was reliable.
[192] Dan Lewis was not the perfect witness. He was able to provide details of certain events, but when pressed, became vague. Despite his obvious and palpable dislike of the accused, I found that, overall, his evidence was consistent with and corroborated by the written record of the events and was not exaggerated. I accept his evidence as reliable and worthy of belief in all key aspects.
[193] All police witnesses gave their evidence in a consistent, careful, credible, and helpful manner. With the exception of Detective Jackson’s evidence regarding how she was able to see the pool of blood and matted hair in the kitchen of the lower suite, I have no hesitation accepting the police’s collective evidence in its entirety. However, for the reasons I will set out momentarily, I do not find Detective Jackson’s evidence that she did not enter the lower suite to be reliable.
[194] That brings me to the credibility of Ms. Miller and Marlon as witnesses and the reliability of their testimony.
[195] Marlon has obvious mental health issues. His answers on the witness stand were short and literal responses to the questions he was asked. Many of his answers were confused, muddled, and/or tangled. He was easily swayed to give inconsistent and contradictory answers. His estimate of the accused’s height of six feet two or three inches varied significantly from Ms. Bialostozky’s estimate, which I accept, of five feet five inches.
[196] Marlon insisted his evidence that he had not spoken to his mother about what had happened on September 18, 2015 was fresher than his evidence during the preliminary inquiry in May of this year, when he stated he had spoken to his mother about the incident on 15 or 16 occasions.
[197] Marlon’s evidence as to the attack itself was not only internally inconsistent, but inconsistent with the photographic evidence of the scene. He said he was sorting bottles and cans when he was attacked. Yet, unlike where Ms. Miller was attacked, there is no indication of any kind of significant altercation having occurred in the laundry room area where Marlon said he was attacked. Indeed, none of the many various items in that room appears to have been displaced in any way. There were no bottles or cans found in that room or anywhere else nearby. Marlon said he fell to the ground after being attacked. There was no pool of blood at that location.
[198] If Marlon’s evidence that he was attacked in the laundry room and then he ran outside is true, there would be no blood trail from the kitchen into that rear hallway and laundry room area. The photographic evidence shows the presence of such a trail of blood droplets. That trail is more consistent with an injured person moving from the kitchen through the lower suite’s back door than it is with any kind of altercation and wounds having taken place in the area that Marlon said it did.
[199] Marlon testified that the accused struck him on the right shoulder and on the top of the head with a hatchet and in the jaw with a sledgehammer, which he described as being two-and-a-half feet long and a head with dimensions of approximately eight inches by three inches. There is no evidence of a sledgehammer having been found. There were no injuries to Marlon’s jaw that were noted.
[200] Marlon testified that he was silent throughout the attack. Ms. Miller testified that she heard him scream.
[201] Marlon testified that the accused was wearing a white sleeveless T‑shirt at the time of the attack. No such garment was found. Marlon testified that he did not see any markings on the accused’s body, yet the accused’s arms are covered in tattoos.
[202] There were so many conflicts and inconsistencies in Marlon’s evidence that it is difficult to discern what Marlon actually did or saw, as opposed to what he has created in his mind.
[203] The Crown submits that these inconsistencies are not surprising, given the nature of the attack and Marlon’s obvious vulnerability and cognitive incapacity. The Crown submits that Marlon appeared overwhelmed and was pressured on the witness stand to agree with the suggestion put to him on cross-examination.
[204] I find that Marlon was generally not a credible or reliable witness, and that to the extent his evidence regarding the attack is not substantially corroborated by other direct or circumstantial evidence, it is of little cogent value.
[205] In contrast to Marlon, Ms. Miller testified in a confident, precise, and assertive manner. She was certain of her facts and her evidence, which was consistent and unyielding throughout. However, her testimony that she did not initially remember what had happened to her and that what she thought had been a dream of the accused standing in front of her with a raised hatchet later became a memory, after we heard what Marlon and her employer had said to her in the hospital, casts doubt on the reliability of her evidence. She conceded that her statement in the January 2016 email to Detective Russell, in which she recalled feeling the corner of the hatchet going into her skull, was not correct, possibly as a result of the brain damage she suffered during the attack.
[206] In assessing Ms. Miller’s credibility and the reliability of her evidence, I must consider the evidence of Marlon’s previous violence against her. If Marlon was the one who attacked his mother, not only would he have motive to say that someone else had done it, Ms. Miller, too, would be motivated to point the finger at someone other than her son.
[207] I conclude that, although Ms. Miller was generally a credible witness, the reliability of her recollection of the attack itself is clouded by how it became established; namely, a dream that morphed somehow into a memory, after having heard comments from both her employer and Marlon. I must assess the reliability of that evidence in light of the evidence as a whole, which I will now analyze.
[208] It is clear from the evidence that there was an intense and ongoing animosity on the part of the accused towards the tenants in the lower suite, and vice versa. Although the accused threatened the lower suite tenants, both in emails and during face‑to‑face confrontations during the period March to July 2015, the animus never became physical. Mr. Binning viewed the clashes as typical of the accused’s usual “big talk, rapper attitude”, and other rhetoric.
[209] During the six‑week period immediately preceding the attacks, there was no indication of any issue between the groups of tenants until September 15, 2015, when the accused reported to Mr. Binning that his van had been broken into.
[210] Marlon’s testimony raises serious doubts as to what actually happened on the morning of September 18, 2015. His story does not fit with the objective evidence found at the scene. Marlon admitted to being angry at his mother and agreed that he had probably hurt her on the morning of September 18, but was unable to say how or why. However, as I have said, I consider his evidence to be unreliable and of little cogent value in the absence of corroborating evidence.
[211] If the attack took place as Marlon said it did, and he ran out of the house in order to get help, common sense dictates that he would seek the nearest refuge or source of help, yet, he continued running past Ms. Bialostozky when she asked him if she could help him. Instead, he ran to a grocery store located at 45th and Fraser Street, when help could have been available much sooner and significantly closer.
[212] It is difficult to conceive how the accused could have attacked Ms. Miller in the brutal manner in which she was attacked in the timeframe established by the evidence. After the attack, the accused would have had to proceed through the blood‑covered scene to the front foyer of the house, go up the stairs and into the upper suite, all without leaving a trace of blood, shed his clothing, shower, dry off, get dressed in clean clothing, pour himself a drink, and move to the rear balcony where he was seen by Ms. Bialostozky in no more than five minutes after Ms. Bialostozky saw Marlon running from the house.
[213] Detective Russell testified that he would have expected the attacker to have had bloody clothing. The only bloody clothing that was found was that belonging to Ms. Miller and Marlon. That clothing was never analyzed for DNA profiles to determine whether Ms. Miller’s blood was on Marlon’s clothing.
[214] There is no question that the accused’s behaviour after the attack took place was bizarre, from his stomping up to Ms. Bialostozky and mimicking her words as she was on the telephone, to his conduct during the two‑hour standoff with the police. However, his conduct was not uncharacteristic of how he typically interacted with people. It is plausible that the accused’s previous interactions with both the landscapers next door and the police were what prompted his behaviour.
[215] Although the Y‑STR DNA profile from VPD Exhibit 36, a swab from the handle of one of the hatchets found in the lower suite, indicated a likely match to the accused’s profile, Mr. Frasca agreed it is possible for DNA to remain in one place on an object for a lengthy period of time, particularly given the porosity of the handle of the hatchet.
[216] Mr. Roan’s evidence, which I accept, that the objects the accused had in his hands on February 17, 2015 appeared to be hatchets with bright‑coloured handles is reliable evidence that the accused possessed the very hatchets that were found at the scene of the offence. The accused’s email to Mr. Binning on September 15, 2015, three days before the incident, is evidence that someone had broken into his van where the accused kept some of his tools.
[217] Perhaps the most difficult piece of evidence to assess is that Ms. Miller’s DNA was found on the vertical blind covering the upper suite’s rear patio door. That evidence is consistent with the accused having been the attacker and having somehow transported Ms. Miller’s blood to the upper suite. However, Mr. Frasca testified that Exhibit 26 may not have been blood and the DNA can be deposited on an object by different people at different times or, indeed, transferred from one object to another object long before a DNA swab is taken. Although Ms. Miller’s evidence is that she never entered the upper suite, she could have left her DNA on the blind without entering it.
[218] I find it highly doubtful that an officer of Detective Jackson’s experience would have been careless enough to have transferred Ms. Miller’s blood from the lower suite to the upper suite blind. She was firm in her evidence that she did not enter the lower suite and was able to see a large pool of blood and matted hair on the floor of the lower suite from the rear doorway. However, all other officers who were asked testified that the pool of blood could not have been seen from that rear doorway. The photographs (Exhibit 25) and the CAD drawings (Exhibit 17), corroborate that evidence. Detective Jackson confirmed that she did not change her PPG after looking through the rear doorway of the lower suite before entering the upper suite.
[219] In assessing this evidence as a whole, I find that although Detective Jackson could not recall having done so, she must have entered the lower suite in order to have seen the pool of blood and matted hair on the kitchen floor, and that a plausible explanation for Ms. Miller’s DNA being found in Exhibit 26 is Detective Jackson’s inadvertent transfer of it from the lower suite to the upper suite.
[220] There is evidence that Marlon and his mother had at least one physical altercation prior to the attack and one more after the attack, which Marlon had hurt his mother.
[221] There is no question that the injury sustained by Marlon was serious. He suffered a four‑inch laceration to his right shoulder and the top right side of his head, as well as a fracture of his skull. However, it is not implausible that his wounds could have been self‑inflicted. The Crown did not lead any evidence ruling out that possibility.
[222] On the whole of the evidence, I am left with reasonable doubt that the accused attacked Ms. Miller and Marlon. Accordingly, I find the accused not guilty of the charges against him.
“G.C. Weatherill J.”