PROVINCE OF PRINCE EDWARD ISLANDIN THE SUPREME COURT - TRIAL DIVISION

Citation: R. v. Crosby 2006 PESCTD 25 Date: 20060424Docket: S1-GC-202

Registry: Charlottetown

Her Majesty the Queen

against

Douglas Randolph Crosby

Before: The Honourable Mr. Justice Gordon L. Campbell(Oral Decision)

Appearances:

Michelle James - on behalf of the CrownJoel Pink, Q.C. - on behalf of the Accused

Place and Dates of Hearing Charlottetown, Prince Edward IslandFebruary 1, 2, 3, 6, 7, 10,13, 14, 2006

Place and Date of Judgment Charlottetown, Prince Edward IslandApril 24, 2006

Citation: R. v. Crosby 2006 PESCTD 25 S1-GC-202

Her Majesty the Queen

Against

Douglas Randolph Crosby

Prince Edward Island Supreme Court - Trial DivisionBefore: Campbell J.

Date of Hearing: February 1, 2, 3, 6, 7, 10, 13, 14, 2006Date of Judgment: April 24, 2006

[22 pages]

CRIMINAL LAW - Manslaughter - Unlawful Act - Assault - Consent - Honest beliefvictim consented - No intention to cause serious bodily harm.

CASES CONSIDERED: R. v. Lifchus (1997), 118 C.C.C. (3d) 1; R. v. Starr (2000), 147CCC (3d) 449; Attorney General’s Reference, [1981] 2 All E.R. 1057; R. v. Jobidon,[1999] 2 S.C.R. 714; R. v. Crosby, 2005 PESCAD01; R. v. Paice, [2005] SCC 22; R. v.Starratt (1971), 5 C.C.C. (2d) 32; R. v. Wolfe (1974), 20 C.C.C. (2d) 382; R. v. Morrissey(1995), 97 C.C.C. (3d) 193.

STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, Chap. C-46, s-ss.222(5)(a), 265(1), 265(3), 265(4).

Michelle James - on behalf of the CrownJoel Pink, Q.C. - on behalf of the Accused

CAMPBELL J.:

[1] Niall Lucock died following a confrontation with Randy Crosby in the earlymorning hours of December 1, 2001. Mr. Crosby punched Mr. Lucock once, striking himin the neck or jaw area. On the same day Mr. Crosby was charged with having unlawfullykilled Mr. Lucock, thereby committing manslaughter contrary to section 236(b) of theCriminal Code of Canada and amendments thereto. The accused was the owner of BigMomma’s Restaurant and Lounge located on Prince Street in Charlottetown, one buildingnorth of Kent Street. He also owned a pizza and sub shop on Kent Street, called Mr. BigSubs, located just around the corner to the east from Big Momma’s. On Friday evening,November 30, 2001, Mr. Crosby had been at both of his business establishments andelsewhere. He had been socializing with friends and employees prior to the event that gaverise to this charge.

[2] The term “manslaughter” encompasses culpable homicide, which may occur indifferent ways as the result of different acts of the accused. The relevant section in this caseis section 222(5)(a) of the Criminal Code of Canada which reads:

222(5) A person commits culpable homicide when he causes the death of ahuman being,

(a) by means of an unlawful act, . . .

[3] The “unlawful act” alleged to have been committed here, or the offence upon whichthe charge of manslaughter is predicated, is that of assault. Assault is governed by section265 of the Criminal Code, the pertinent sections of which read as follows:

265(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionallyto that other person, directly or indirectly;

(b) he attempts or threatens by an act or a gesture, to apply force toanother person, if he has, or causes the person to believe uponreasonable grounds that he has, present ability to effect his purpose;

. . .

(3) For the purposes of this section, no consent is obtained where thecomplainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other thanthe complainant;

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(b) threats or fear of the application of force to the complainant or to aperson other than the complainant;

. . .

(4) Where an accused alleges that he believed that the complainantconsented to the conduct that is the subject-matter of the charge, a judge, ifsatisfied that there is sufficient evidence and that, if believed by the jury, theevidence would constitute a defence, shall instruct the jury, when reviewing allthe evidence relating to the determination of the honesty of the accused’s belief,to consider the presence or absence of reasonable grounds for that belief.

[4] It is a fundamental principle of our law that the accused is presumed innocent untilproven guilty beyond a reasonable doubt. The burden of proof rests with the Crownthroughout the trial. It must prove each and every essential element of the offence beyonda reasonable doubt. The accused does not have to prove anything at any time.

[5] The term “proof beyond a reasonable doubt” has been defined in many ways overthe years. Currently the comments of the Supreme Court of Canada in R. v. Lifchus(1997), 118 CCC (3d) 1, are frequently quoted. At paragraph 39 it states:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be basedupon sympathy or prejudice. Rather, it is based on reason and common sense. Itis logically derived from the evidence or absence of evidence. Even if youbelieve the accused is probably guilty or likely guilty, that is not sufficient. Inthose circumstances you must give the benefit of the doubt to the accused andacquit because the Crown has failed to satisfy you of the guilt of the accusedbeyond a reasonable doubt. On the other hand you must remember that it isvirtually impossible to prove anything to an absolute certainty and the Crown isnot required to do so. Such a standard of proof is impossibly high. In short if,based upon the evidence before the court, you are sure that the accusedcommitted the offence you should convict since this demonstrates that you aresatisfied of his guilt beyond a reasonable doubt.

[6] In R. v. Starr (2000), 147 CCC (3d) 449, Iacobucci J. used a comparison to the civilstandard of “proof on a balance of probabilities” to demonstrate the degree of certaintyrequired for “proof beyond a reasonable doubt”. Proof on a balance of probabilities isdefined as being “more likely than not”, or in other words, “more than 50% likely”. Atpage 545, Iacobucci J. said:

In my view, an effective way to define the reasonable doubt standard for a juryis to explain that it falls much closer to absolute certainty than to proof on abalance of probabilities.

[7] As we know, this is the second trial of this matter. In this trial, the Court waspresented with the evidence of 27 witnesses, 14 of whom testified in person. By agreementbetween counsel, the evidence of 12 other witnesses was presented by way of transcripts of

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their evidence given at the previous trial. The evidence of one additional witness, who alsotestified at the previous trial, was not provided in the form of a transcript, but rather by wayof a disk containing that witness’s recorded testimony from the last trial, to which Ilistened.

[8] It is important to note that while the subject matter is the same, this is a differenttrial than the first one. Apart from the fact that there were witnesses who testified at thistrial who did not testify at the last proceeding, and there may have been witnesses whotestified the last time but did not testify this time – which is something I do not know anddo not need to know – there is a significant difference in the legal issues presented to theCourt on this occasion.

[9] At the time of the last trial, which was by judge and jury and not judge alone, therewere two conflicting lines of legal reasoning in Canada with regard to the availability ofthe defence of consent in the context of a fist fight. One line of reasoning said individualscannot consent to the application of force that causes them serious bodily harm whetherthat degree of harm was intended or not. This line of reasoning arose from the English casecalled Attorney General’s Reference, [1981] 2 All E.R. 1057. That case interpreted andapplied English law to a situation where two young men, in a relatively calm fashion, haddecided to settle their differences by having a fist fight. One suffered a bloody nose andsome bruises. The other was charged with assault. The Court held that because it was notin the public interest that people should cause each other bodily harm, consent was nodefence to a charge of assault when actual bodily harm was either intended or was causedregardless of intention.

[10] The other line of reasoning said individuals can consent to the application of forcethat causes them harm provided there was no intention to cause serious bodily harm orharm beyond what would be transitory or trifling in nature. The first in this line of caseswas decided by the Supreme Court of Canada in R. v. Jobidon, [1999] 2 S.C.R. 714. TheSupreme Court considered the provisions of section 265 of the Criminal Code of Canadadealing with the definition of assault, to which I have already referred. Those provisionsdefine assault as the application of force to another person without their consent. This casealso dealt with a fight occurring outside a bar after some scuffling occurred in the bar, andthe accused was removed. When the victim came out the men squared off, and the trialjudge found they had consented to have a fight. The accused struck the victim with greatforce knocking him backwards onto the hood of a car. The victim was unconscious. Theaccused continued to hit him with a flurry of punches to the head. The victim was taken tothe hospital where he died of his injuries. The Supreme Court ruled that, given theprovisions of the Criminal Code, you can consent to engage in a fist fight, even onecausing some bodily harm. However, any intention to cause serious bodily harm willnullify the consent that was given. In Jobidon, the Court held that in continuing to hit thevictim after he was unconscious, the accused had gone beyond the ambit of the consent,and he was therefore guilty of manslaughter. However, some comments on the limitations

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of consent in Jobidon, which also referred to the Attorney General’s Reference case, weresubsequently interpreted by other courts in Canada to mean that if serious bodily harm wasthe result, consent was not available as a defence.

[11] The trial judge at the first trial preferred the line of reasoning that concluded thedefence of consent was not available if serious bodily harm ensued regardless of theintention at the time of the application of force. Therefore, the defence of consent was notpresented to the jury for consideration. The accused was convicted. The matter wasappealed, and the Appeal Division of this Court preferred the interpretation that allowedfor consideration of the defence of consent in regards to a fist fight so long as the intentionat the time of the application of force was not to cause serious bodily harm. (See R. v.Crosby, 2005 PESCAD01.) In that case, Chief Justice Mitchell said the following:

The trial judge seems to have relied on the emphasized portion of a sentence inthe judgment of Gonthier J. at p. 766 of the Jobidon decision in which he said:

The limitation demanded by s. 265 as it applies to thecircumstances of this appeal is one which vitiates consentbetween adults intentionally to apply force causing serioushurt or non-trivial bodily harm to each other in the course of afist fight or brawl. [Emphasis by Gonthier J.]

As another judge has also noted in a case referred to below, the underlinedlanguage contains some ambiguity. It is not immediately clear whether the word“intentionally” is intended to qualify only the application of force or both thatand the causing of serious hurt or non-trivial bodily harm.

The Appeal Division ordered a new trial. Since that decision, the Supreme Court ofCanada settled the issue in R. v. Paice, [2005] SCC 22, and confirmed that the defence ofconsent is available where individuals are involved in a consensual fight in which seriousbodily harm is not intended. Therefore, that defence is to be considered in respect of thistrial.

[12] In this case, the Crown must prove each of the following five essential elements ofthe offence beyond a reasonable doubt in order for a conviction to be entered against theaccused:

(1) That the accused applied force to Niall Lucock;

(2) That the accused intended to apply force to Niall Lucock;

(3) That Niall Lucock did not consent to the application of force against himby the accused;

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(4) That the accused did not have an honest belief that Niall Lucockconsented to the application of force against him by the accused; and

(5) That Niall Lucock’s death resulted from the application of such force bythe accused.

[13] The first of the essential elements of the offence in this case, that is that the accusedapplied force to Niall Lucock, was not challenged by the defence, and in fact, was admittedby the accused in his own testimony.

[14] The fifth of the essential elements is that the assault must have been the cause ofdeath, assuming the other elements were proven. I have reviewed the testimony and theFinal Post Mortem Report of Dr. Marek Godlewski and the testimony and subsequentreport of Dr. Robert Macaulay. I have also considered the other evidence of the severalwitnesses who were at or about the scene following the confrontation whose testimonyconfirmed that there were no intervening events, other than medical treatment, between thetime Mr. Lucock first landed on the ground and the time of his death.

[15] I accept the testimony of Dr. Godlewski that he found no evidence of any impropermedical treatment that would have caused the death, and I accept the finding of the FinalPost Mortem Report that the cause of death was perforation of the congenitally partiallyduplicated basilar artery due to trauma to the head leading to massive subarachnoidhaemorrhage.

[16] Whether the perforation and haemorrhage arose from the single punch to Mr.Lucock’s head, or from Mr. Lucock’s head striking the wooden railing of the pedway orstriking the pavement when he hit the ground, I find the injury, and therefore the death, wasdirectly connected to the application of force on Mr. Lucock by Mr. Crosby. The Crownhas therefore proven the fifth element of the offence beyond a reasonable doubt.

[17] Turning to the second element of the offence, the question is whether the force thatCrosby applied to Lucock was applied intentionally. There is caselaw which holds that ifthe force was applied as a reflex action or carelessly, then the essential element of intent ismissing. Counsel for the defence referred to R. v. Starratt (1971), 5 C.C.C. (2d) 32 and R.v. Wolfe (1974), 20 C.C.C. (2d) 382, both decisions of the Ontario Court of Appeal. InStarratt a police officer was in the course of arresting the complainant. In an effort tosecure some evidence, he carelessly swung his handcuffs towards the complainant, hittinghim in the mouth causing him to lose several teeth. In Wolfe, the complainant hadapproached the accused while the accused was standing talking on the phone. The accusedturned quickly in what was described as a reflex action and struck the complainant on thehead with the telephone receiver, causing a four inch cut on the complainant’s forehead.

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[18] I listened carefully to the accused’s own testimony in this case. He stated that theencounter happened very quickly and that he didn’t have time to get set; that it was just areactionary punch. He thought at the time that he and Lucock were going to fight. Withoutassessing the reasonableness of that conclusion at the moment, if I accept what the accusedhas said, he struck Mr. Lucock rather than waiting to be struck first. In my view, thissituation is different than one where you respond reflexively to some event or occurrence. While it would appear – if I accept what Mr. Crosby said – that there may not have beenmuch time to react or decide what to do, I am satisfied beyond a reasonable doubt that Mr.Crosby did intend to strike Mr. Lucock. His actions were not the result of carelessness orinadvertence. The action was intended to ward off an anticipated strike. I do not consider itto have been a mere reflex action in the manner referred to in Wolfe. In my opinion, thesecond element of the offence has been proven beyond a reasonable doubt.

[19] That brings us to the last two elements, both of which deal with consent. Did Mr.Lucock consent to a fight, or did Mr. Crosby have an honest belief that that was so? Theonus is on the Crown to prove the lack of consent, beyond a reasonable doubt. In reality,the Court is left to determine what happened or what was in the minds of Mr. Lucock andMr. Crosby in the very few moments or seconds prior to Crosby hitting Lucock. To assistin making that determination, it is necessary to sift through the evidence of what occurredprior to the confrontation.

[20] The theory of the Crown’s case is succinctly set out at page 16 of their writtensubmission.

It is the position of the Crown that the accused, Douglas Randolph Crosby, atapproximately 2:00 a.m. on December 1, 2001, left Big Momma’s lounge andpursued Foch Campbell and Niall Lucock to the area near the intersection ofKent Street and Prince Street. The accused was angry that the boys had returnedto Big Momma’s. Mr. Campbell was being mouthy. The accused was nothappy about being “disrespected” in his own bar and pursued the boys. He ranacross the street to where they were. They [sic] boys were walking away. Theaccused was told by at least one, and more likely two, of his employees to “leaveit alone” or “let it go”. He ignored that recommendation and continued hispursuit. Mr. Campbell was yelling back in the direction of the accused, and theaccused was returning the profanities. When he caught up [sic] the boys, heswung up with a closed fist and struck Mr. Lucock in the jaw area. Once peoplestarted coming to the area, those who might be and who subsequently werewitnesses, the accused fled the scene. He returned to his bar and subsequentlyfled that location, after being advised that the police were there and after lookingout the window to see if anyone was coming. Meanwhile, Niall Lucock waslying on the ground being treated by the emergency personnel and beingtransported to the hospital. He died later that day as a result of the injury causedby the accused’s punch.

The Crown submits it has been proven that Niall Lucock did not consent to afight with or any application of force by the accused. Further, the Crown takesthe position that the entirety of the circumstances do not give rise to an honest

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belief on the part of the accused that Niall Lucock was consenting. The Crown’salternative position is that it is clear that the accused, notwithstanding his denial,struck Niall Lucock with the intention to cause him bodily harm and therefore, ifMr. Lucock did consent, said consent is vitiated.

[21] Assessing the credibility and reliability of a witness’s testimony involves manyfactors. In R. v. Morrissey (1995), 97 C.C.C. (3d) 193, Mr. Justice Doherty of the OntarioCourt of Appeal stated, at page 205:

Testimonial evidence can raise veracity and accuracy concerns. The formerrelate to the witness's sincerity, that is his or her willingness to speak the truth asthe witness believes it to be. The latter concerns relate to the actual accuracy ofthe witness's testimony. The accuracy of a witness's testimony involvesconsiderations of the witness's ability to accurately observe, recall and recountthe events in issue. When one is concerned with a witness's veracity, one speaksof the witness's credibility. When one is concerned with the accuracy of awitness's testimony, one speaks of the reliability of that testimony. Obviously awitness whose evidence on a point is not credible cannot give reliable evidenceon that point. The evidence of a credible, that is honest witness, may, however,still be unreliable. ...

[22] Assessing evidence is made all the more difficult when a witness has given two ormore contradictory statements.

[23] Foch Campbell was a good friend of the deceased, Niall Lucock. It is obvious thathe deeply feels the loss and is anxious to blame himself for what happened. His hostilitytowards the defence was not masked during his testimony.

[24] Foch Campbell had spent the evening with Niall Lucock. According to Campbellthey met at Melon’s Bar around 9 p.m. and stayed until around 11 p.m. At Melon’s theyshared a couple of pitchers of beer and had a shot or two of Jack Daniel’s. From there theywent to the Cellar bar to take advantage of the inexpensive drinks and had a “considerableamount to drink” likely four drinks in the first round and two in the second. Both he andMr. Lucock were drinking approximately the same amount. Campbell stated that he hadbetween 10 and 11 drinks in total at Melon’s and the Cellar. He says they then went backto Melon’s and briefly onto the Sports Page bar without having another drink at eitherlocation. They then arrived at Big Momma’s. Foch Campbell, maintains that he and NiallLucock were only at Big Momma’s once that evening and that there was a time span ofabout 20 minutes between when they first arrived at Big Momma’s and when Niall Lucockwas on the ground on Kent Street. It is clear from the testimony of Constables Pittman andJohnson, who spoke to Campbell and Lucock at the intersection of Prince and Kent atapproximately 2:05 a.m., and from the testimony of Ted MacPherson, the paramedic whoreceived the emergency call at 2:08 a.m., that the physical encounter occurred betweenapproximately 2:05 and 2:08 a.m. or within a slightly larger time frame, allowing forvariations in the time shown on their respective watches. That would place the time ofCampbell and Lucock’s first arrival at Big Momma’s at approximately 1:45 a.m.,

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according to Campbell. He also maintains that he was the only one breaking any bottles inthe bar that night.

[25] This evidence is contradicted by the testimony of several other witnesses. Mostnotably there is the testimony of Angela Power, the waitress, who is the only witness at BigMomma’s that night who was not consuming alcohol. While she did not wear a watch anddid not note the precise time, she testified that she first saw Campbell and Lucock at thebar around 1 o’clock a.m. within an hour or so of closing. She heard glass breaking andthen saw Lucock intentionally breaking beer bottles on the floor. She advised Crosby ofthis and pointed the two of them out to Crosby who, along with two other employees of BigMomma’s – P.J. Gregory and Richard Gorman – evicted Campbell and Lucock. Aboutfive minutes later she saw Crosby back in the first booth at the top of the stairs on thesecond floor. She also testified that it was following this event that a call came to the barrequiring Mr. Crosby to go to his adjacent business, Mr. Big Subs, and settle a disturbance.

[26] Greg Carson, another employee of Big Momma’s, testified that after leaving theLegion earlier in the evening he was back at Big Momma’s and was moving aroundbetween the first floor and second floor, and even to the basement to get more liquor for thebar. Carson had seven beer from approximately 8 o’clock in the evening until he returnedto Big Momma’s somewhere around midnight. He admitted to having “definitely over 10"beer throughout the course of the entire evening and early morning hours. He accompaniedCrosby over to Mr. Big Subs to settle the disturbance. As to the time they attended at Mr.Big Subs he was not completely sure, but stated during cross-examination that “I guess itcould have been around 1:15 a.m.”. Further, he confirmed that they were gone from BigMomma’s for approximately 15 to 20 minutes.

[27] Richard Gorman told the Court that it was 30 to 45 minutes before closing time thatCampbell and Lucock were first evicted. Gorman stated that Campbell later came backlooking for the person who had evicted him – Crosby, and Gorman gave Campbell a falsename, saying it was Randy West, after which Campbell and Lucock left. Gorman saysCampbell was hyper, aggravated and wanted to have Crosby charged.

[28] P.J. Gregory, whose evidence will be dealt with more fully later on, confirms thatafter Campbell and Lucock were evicted the first time, Campbell came back and Crosbyagain addressed him and removed him from the building. Adam DeGrace’s testimonyconfirms that both Campbell and Lucock returned, coming to the top of the stairs on thesecond floor of Big Momma’s. Mr. DeGrace had been a patron at Big Momma’s on thatevening and was not familiar with Campbell, Lucock, or any of the employees or owners ofBig Momma’s.

[29] From all of this evidence, I conclude that Foch Campbell and Niall Lucock were atBig Momma’s on three occasions prior to the fatal confrontation between Crosby and

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Lucock. I accept the evidence of Angela Power that it was shortly before 1:00 a.m., aboutan hour prior to closing, that they first arrived. I accept as well that both Foch Campbelland Niall Lucock were involved in breaking bottles and that they were evicted around 1:00a.m. within 5-10 minutes of arriving there. I accept the evidence of Angela Power andGreg Carson to the effect that the disturbance at Mr. Big Subs, to which Mr. Crosby wascalled, occurred at approximately 1:15 a.m., after Foch Campbell and Niall Lucock werefirst evicted.

[30] Ms. Power, who was working and was sober, was not equivocal about the timing ofthe eviction and the subsequent trouble at Mr. Big Subs. I find Mr. Campbell’s evidencenot to be reliable with respect to the time of his initial arrival at Big Momma’s or withrespect to the number of times he attended there. This conclusion is also supported by theevidence of Cst. Pittman who spoke with Mr. Campbell at the hospital at 3:35 a.m. onDecember 1st, 2001. Cst. Pittman found Mr. Campbell to be very upset and angry and stillto be “highly intoxicated”. At 3:35 a.m. Pittman asked Campbell why he had gone back toBig Momma’s after being evicted. Campbell responded that “they had gone back to causetrouble or be a nuisance.”

[31] I also find, based on the evidence of Mr. Gorman, that Campbell and Lucockreturned to Big Momma’s sometime after being evicted, and that on this occasion FochCampbell and Niall Lucock made a limited entry into Big Momma’s, and that Campbellwas angry and attempting to find out Randy Crosby’s name with the intention of havinghim charged in connection with their first eviction. I find that it was on this occasion, priorto the confrontation, that Campbell was given the false name of Randy West in place ofRandy Crosby. This is supported by the evidence of both Robert Buote and Rodney Evans,each of whom heard the name “Randy West” being shouted out as they approached thescene immediately after the confrontation. They further confirm that this was before FochCampbell returned yet again to Big Momma’s in search of Randy West after theconfrontation.

[32] I have also considered the evidence of Randy Crosby who testified that he had twoencounters at Big Momma’s with Campbell and Lucock that night. By his testimony, oneoccurred shortly after 1 a.m. and the other shortly before 2 a.m. This evidence iscorroborated by the others to whom I have already referred.

[33] As well, the testimony of Alan Stewart and Susan Allen confirms that Campbelland Lucock were evicted around 12:45 to 12:50 a.m. Stewart and Allen also confirm thatwhen they were leaving Big Momma’s approximately one hour later – between 1:45 and1:55 a.m., they saw Campbell and Lucock return to Big Momma’s.

[34] In the hour before Crosby left Big Momma’s and crossed Prince Street andproceeded down Kent Street, he had been involved in three physical encounters. He had tophysically remove a boisterous, rambunctious, and mouthy Foch Campbell from Big

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Momma’s lounge, settle a disturbance and physically remove a patron from Mr. Big Subs,and physically remove Campbell, with Lucock present, from the restaurant for a secondtime.

[35] During the first encounter with Campbell and Lucock, Crosby was the subject ofand to some extent engaged in “trash talk” back and forth between himself and Campbell inparticular. According to Crosby, Campbell had taken a swing at him in the course of thiseviction. Between the two encounters with Campbell and Lucock, Crosby had beenadvised that they had returned looking for him. During the second encounter he was thesubject of more trash talk from both Lucock and Campbell including, according to Crosby,a threat from Lucock that he was going to kill him. P.J. Gregory confirmed that during thisencounter Lucock threatened Gregory as well. Also according to Crosby, during the firstencounter, Campbell had said he’d be back to burn the place down with Crosby in it. Crosby was told by Richard Gorman that he had “just put out the wrong guy”. Also,Crosby had recognized Lucock from Lucock’s involvement some six months earlier in abar room brawl at Big Momma’s.

[36] By the time Crosby was involved in the second eviction of Campbell and Lucock,Crosby had had eight beer and was feeling its effects. Crosby stated that after the firsteviction everybody was a bit uneasy. In Court, he described himself as being “somewhatannoyed” after the incident at Mr. Big Subs, while during the last trial he agreed that hewas annoyed and angry. Crosby stated that he was “a little upset that it had gotten to thispoint” when asked if he was angry following the second encounter with and eviction ofCampbell and Lucock. According to Crosby, after he left Big Momma’s, crossed the streetand saw and heard Campbell in the middle of the street, he was nervous and somewhatapprehensive about being jumped because he did not know the whereabouts of Lucock.

[37] Crosby also testified about his reason for leaving Big Momma’s and going downKent Street just after 2 a.m. on December 1st, 2001. He told the Court the he and othersoften went to the Sportsmans Club for a drink after 2:00 a.m., which is the legal closingtime for bars in Charlottetown. On this evening he had had general conversation with eachof Kevin Docherty and Derek Carty about the possibility of going there for a beer uponleaving Big Momma’s. As opposed to planning to go together or making specific plans tomeet there at any particular time, he indicates it was more or less a loose arrangement as insaying “I may catch you there later.” Both Mr. Docherty and Al Stewart testified that theyhave often gone to the Sportsmans Club for drinks after the official closing time and thatCrosby did the same.

[38] Crosby says just prior to Campbell and Lucock returning at the time of the secondeviction, he was nearly ready to leave for the Sportsmans Club. He heard a ruckus, metthem at the top of the stairs and proceeded to physically remove Campbell once again. He

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is unsure of how Lucock got outside. At the time of the first eviction he had told them togo to Breakers – another bar just down Prince Street past Kent Street. He didn’t want themback at his bar. Following the second eviction, he says he didn’t know or care where theywere going as long as they were out of his place, although they were heading in thedirection of Breakers. Crosby stated that he returned to the lounge and that it was 5-10minutes after this that he left Big Momma’s for the Sportsmans Club.

[39] According to Crosby, after the second eviction, he finished his beer, talked to P.J.Gregory for a couple of minutes, and shouted to Derek Carty to see if he was also going togo to the Sportsmans Club. Carty was talking with others, and after a couple of minutesCrosby left Big Momma’s alone. Crosby was questioned extensively on cross-examinationabout the route he chose to get to the Sportsman’s Club. He stated the shortest and mostdirect route from Big Momma’s to the Sportsman’s Club was to go from Prince Street toKent Street to University Avenue. He acknowledged that you could also go from PrinceStreet to Fitzroy Street to University Avenue, but says that is a longer route. Havingexamined the photos in Exhibit C-3, I accept his testimony that the route he chose was theshortest and most direct.

[40] I have considered the time frames referred to in the evidence and have reachedcertain conclusions. The police encountered Campbell and Lucock at the intersection ofPrince and Kent Streets at 2:05 a.m. This was when Campbell wanted Crosby chargedwith assaulting him during the eviction. I find this to have been a reference to the secondeviction which had occurred five to ten minutes earlier. The paramedic received a call at2:08 a.m. None of the other witnesses, including Crosby, reported seeing the police van atthe intersection of Prince and Kent. The Crown contends that Crosby did not return to thelounge, but continued to chase Lucock and Campbell, which culminated in theconfrontation with Lucock. If Crosby had stayed outside with several other employees inthe immediate area and continued the pursuit of Campbell and Lucock immediately afterbeing involved in evicting them for a second time, it is reasonable to expect that Crosby orsome of the other witnesses would have seen the police van and would have observedCampbell conversing with the police. The fact that Crosby was not there at that time isconfirmed by Cst. Johnson in his testimony where he states (at page 11 of the transcript)“There was no threat at that time of continuation of the offence”. The offence was thealleged assault Campbell suffered while being evicted by Crosby. This lends support toCrosby’s testimony that he had returned to the Lounge for several minutes after the secondeviction, before leaving for the Sportsman’s Club.

[41] Crosby described the weather as being a downpour at the time he left BigMomma’s. For that reason, he ran as he diagonally crossed Prince Street. He did not seeFoch Campbell or Niall Lucock or P.J. Gregory or Richard Gorman as he left BigMomma’s. He says he did not know at the time where Foch Campbell and Niall Lucockhad gone. When Crosby arrived at the corner of Prince and Kent and turned onto the KentStreet sidewalk, he heard someone roaring. He saw Foch Campbell in the middle of the

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street. Foch Campbell was calling Crosby a fat prick and saying things like come out hereyou fat fucker. Crosby says he interpreted Foch Campbell’s remarks as an invitation tofight – and he wondered where Lucock was, because he had not yet seen him. It was stillraining heavily. Crosby returned the trash talk to Foch Campbell as he continued to walktowards University Avenue.

[42] As he walked along the sidewalk, he spotted Niall Lucock approximately 10 feetahead of him. Crosby testified that Lucock was walking towards him with his fistsclenched and saying something to the effect of “where are your friends now?”. Veryquickly they came together and Crosby concluded they were going to fight. As they cametogether, Lucock started to raise his fists. Crosby then struck him once in the jaw with aclosed fist. Crosby says he struck Lucock because he honestly believed at that point intime that he was going to get struck by Lucock. He says he did not hit him that hard andthat he did not have time to get set to hit him, it was just a reactionary punch. Campbellwas still out in the middle of the street. Crosby says he stood still for a moment thenturned and ran back towards Big Momma’s.

[43] Crosby says he saw P.J. Gregory and Richard Gorman as he was on his way back tothe restaurant. He contradicts P.J. Gregory who claimed he was in between Lucock andCrosby at the time of the strike. He then saw Carty on the street outside of the restaurantand saw Shane Murphy at the door to Big Momma’s.

[44] Foch Campbell’s testimony corroborates what Crosby says about the generalpositions of Crosby, Campbell and Lucock on Kent Street. He confirms as well that bothhe and Lucock were “yelling and screaming” at Crosby and that Lucock was “running offat the mouth”. Campbell also corroborates Crosby’s claim that no one else was aroundCrosby and Lucock at the time of the strike and that others who were in the vicinity wereback up towards the corner of Prince and Kent – some distance from Crosby and Lucock. Campbell does not recall the specifics of what was being said by Lucock prior to the strike. Campbell did not see which way Lucock was facing at the time of the strike, did not seewhether Lucock’s fists were clenched or arms were coming up, and did not see Crosbystrike Lucock. With the exception of P.J. Gregory’s testimony, Crosby’s evidence of whatoccurred in the moments prior to his encounter with Lucock is uncontradicted.

[45] Dr. Macaulay testified that all of the other situations he had been exposed to inwhich he had seen subarachnoid hemorrhages occur have either involved people in motorvehicle accidents or young inebriated males in bar room fights. It has been reported to himthat usually the person injured had a fairly relaxed head and was unprepared for the blow. This was the first case he examined that had the added element involving a blood vessel inwhich there was a congenital anomaly. He also went on and stated that:

... While it’s not a common injury, it certainly does occur in other circumstancesin, again in individuals who may or may, or may not have been prepared for thatsudden blow.

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[46] I cannot conclude from his comments that Lucock was either prepared orunprepared for the blow. Even if I could conclude he was unprepared, that is notdeterminative of whether he had consented to a fight or not. He may well have consentedto fight but still have been unprepared for what Crosby described as a reactionary punch.

[47] Some of the other witnesses have a different version of events than that of theaccused in relation to Crosby’s intentions and actions upon his departure from BigMomma’s. In fact, one of the difficulties presented in this case is that some of the otherwitnesses have more than one version of events and their different versions conflict witheach other in material respects.

[48] Richard Gorman worked as the dishwasher at Big Momma’s. On the night ofNovember 30th he worked until about 11 p.m. He says he was downstairs eating pizzawhen Campbell and Lucock were first evicted. He stated that when Campbell returnedlooking to lay charges in respect of the eviction, he told Campbell that Crosby’s name wasRandy West. He says that he thinks Campbell and Lucock were walking towards Dooly’sat the time of the confrontation between Crosby and Lucock. He saw Crosby leave BigMomma’s, yell something (although he doesn’t say what or to whom), and then he “sort ofran across the road” toward Campbell and Lucock and it looked like Crosby was going tostart a fight. He says he saw Crosby throw a punch, but that he was “kind of far away”. Hedidn’t hear any conversation between Crosby and Lucock. He didn’t see if Lucock’s fistswere clenched or if Lucock made any gestures. He can’t say which hand Crosby used tomake the punch. He says also that P.J. Gregory was not between Lucock and Crosby, asGregory says he was.

[49] In Gorman’s testimony, he puts the timing of the confrontation between Crosby andLucock as immediately following when Campbell had returned and was given the falsename of Randy West. I find, based on other evidence to which I have already referred, thatthe confrontation did not happen until after Campbell and Lucock were evicted by Crosbythe second time. I find Gorman’s testimony to be confused as to the timing of events. I amalso very skeptical about accepting Gorman’s testimony for a number of other reasons. Firstly, he acknowledged himself that everything was “groggy” for him that night due tohis consumption of alcohol and drugs. He admits to having consumed 8-10 beer, 4-6 rumand Coke, and 1-2 caps of Mescalin, starting at around 11 p.m. He was intoxicated, and Ido not consider his evidence to be very reliable.

[50] The credibility of Gorman’s testimony is also in serious doubt. He acknowledgesthat he has a lengthy criminal record with many convictions involving questions ofhonesty, and on one occasion he was held in contempt of court. He agrees he is a seasonedcriminal and a dishonest person. In this case he gave two statements to the police. He sayshe lied in his first statement and would lie to stay on the good side of his friends dependingon the situation. He changed his story and gave a second statement to the police. He

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acknowledged that part of the reason he gave a second story was that he was lonely, hisfriends would not talk to him, his roommate didn’t want him around, and, in his words, hislife was fucked. The first statement was given after a police caution. Gorman volunteeredthat he is a criminal, and he will tell the police what is necessary to protect himself so he isnot known as a “rat” while in jail. He declared that he will say what is of benefit to himand not for the benefit of anyone else but him.

[51] Not only has Gorman lied in police statements on this matter, but he also lied whenunder oath at the first trial of this matter. He explained those lies by saying at the time hegave his testimony at the last trial he was in jail and was testifying in handcuffs, and that hehad a big chip on his shoulder, and that it is not an easy thing to be a Crown witness. Hereiterated that to keep himself safe in jail he will say what he has to say. He confirmed, onthe stand at this trial, that he was also awaiting other charges on offences dealing withdishonesty. Obviously, this may result in him facing more time in jail. All of this greatlydiminishes the value of his testimony.

[52] As well as being an employee at Big Momma’s, P.J. Gregory was a friend ofLucock’s and knew Campbell. P.J. Gregory testified that following the second evictionCampbell and Lucock were heading diagonally across Prince Street towards Kent Street asif they were proceeding toward Dooly’s. He says Crosby was still outside and Campbelland Lucock were yelling profanities at Crosby. He confirms that he was threatened byLucock. He says there was anger on all sides at this point in time. Following this, he saysCrosby pursued them saying that if you want to settle this matter we can do that now. Gregory says he caught up to Crosby and grabbed him by the arm and told him to let it go. Gregory says he was between Crosby and Lucock when Crosby hit Lucock and that henever heard Lucock say anything and Lucock’s hands were down by his side, and he neversaw Lucock move his hands. No other witness corroborates that Gregory was betweenCrosby and Lucock. In fact, others contradict that claim.

[53] Mr. Gregory gave a statement to the police the morning following theconfrontation. He says the police read him his rights, there were no threats, inducements orpromises, and they explained the need for him to tell the truth. The entire statement wasrecorded both in video and audio, which was reviewed in Court, and confirmed by Gregoryto be an accurate reflection of his statement. In that statement he says Lucock came outfrom behind a car, Foch Campbell came from the other side, and they confronted Crosby. He said Lucock threw the first punch. He also said he was at the intersection of Prince andKent when this occurred, not in between Crosby and Lucock. While these are the mostsignificant differences, there are approximately 15-20 such differences. Gregoryacknowledges his statement was a pack of lies.

[54] Ten days later he gave another warned statement to the police, which was similarlyrecorded. In court he was adamant that he did not know at that time that Niall Lucock haddied. It is evident from the statement itself that he did have that information. In his second

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statement, he had the opportunity to change anything he had said before. The only elementhe did change was that he said Lucock did not take a swing at Crosby. He agreed therewere at least 20 differences between what he said in his second statement and what he saidin Court on this trial. Many of these differences were with respect to material facts indispute.

[55] Gregory also testified at the preliminary inquiry into this matter before the firsttrial. This testimony was given in open court before a judge, and he had taken the sameoath that he took in this Court at this trial. At the preliminary inquiry, Gregory testifiedthat Foch Campbell had come out from behind a car and that both Lucock and Campbellwere in a face-to-face confrontation with Crosby, and they were arguing. He stated that hesaw Lucock’s fists clenched by his side. He then saw Lucock come towards Crosby, thenCampbell also came toward Crosby, and at that point in time Crosby punched Lucock. Healso confirmed that Lucock and Campbell had threatened to cause bodily harm to Crosby. This is a significantly different story than he told in Court. During the trial, afterexamining the circumstances around the gathering of these three prior statements, I made aruling that allowed for each of these statements to be considered for the truth of theircontents, as I felt that the statements met the criteria used for assessing their thresholdreliability. Given Gregory’s willingness to lie in repeated warned statements to the police,even when he offers the second statement for the purpose of correcting some mistruths hetold in the first statement, and his willingness to lie in a courtroom to the judge when he’sunder oath, I have little confidence in the credibility of the testimony he gave on this trial.

[56] The reliability of this witness’s testimony is equally low. Apart from being indoubt as to his current ability to separate the truth from his lies, he acknowledges havingconsumed 10 beer between 11 p.m. and 2 a.m., and describes himself as being intoxicatedthat evening.

[57] Foch Campbell confirmed that both he and Lucock had been swearing andmouthing off at Crosby both during the eviction and afterwards. Campbell says he was theone doing most of the trash talking. He states that Crosby grabbed him by the neck of hisshirt and pulled him towards the stairs and doorway. Campbell says that he was not goingto let anyone drag him around like an animal, and, in his words, he wasn’t going to takeshit from anybody. He confirms that he said to Crosby I’m going to kick the shit out ofyou and I’m going to kill you. According to him, he and Lucock were both being loud androwdy.

[58] Campbell says that just prior to the confrontation between Crosby and Lucock hehad been walking in the middle of the street towards Myrons but was turning back andforth and more or less walking backwards, to yell profanities at Crosby and was gesturingwith his hands. He was a few feet ahead of Lucock, who was on the sidewalk. Campbellsays, in his direct testimony, that Lucock’s hands were down at his side. However, he said

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on cross-examination that he could not say which way Lucock was facing at the time of thestrike. I do not accept that he could know his hands were at his sides but not know whichway he was facing. He acknowledges that he cannot say if Lucock’s fists were clenched. He never saw Crosby hit Lucock and never saw Lucock fall, but surmised because of theproximity of Crosby to Lucock by comparison to anyone else, that Crosby must have hithim.

[59] Foch Campbell doesn’t remember being at Big Momma’s more than once thatevening. He doesn’t remember coming into contact with the police just minutes before theconfrontation occurred. I have found that he was at Big Momma’s on at least threeoccasions that evening before Lucock was hit, and that he spoke with the police atapproximately 2:05 a.m. in hopes of getting Crosby charged. Campbell’s failure to recallthese events casts doubt on the accuracy and reliability of the rest of his testimony.

[60] Campbell’s credibility before the Court is harmed as well by the fact that he liedwhile under oath at the preliminary inquiry into this very charge. He denied ever havingbeen at Big Momma’s, but now admits that he had been there some months earlier. Healso admits to lying under oath when he said he had gotten a black eye as a result of afootball injury. He disputes lying with respect to the time frame and seriousness of anoccasion when he, Niall Lucock, and two other of his friends had been in a fist fight sixmonths earlier. To have been proven to have lied under oath in the courtroomdemonstrates a complete lack of respect for the truth and taints the balance of this witness’stestimony.

[61] Derek Carty was another Crown witness. He was a friend of Crosby and had been apatron at Big Momma’s that night. He testified at the first trial, and a transcript of histestimony was submitted for this trial. His testimony is replete with statements such as Idon’t know, I can’t remember, I don’t recall, I can’t tell you, I’m not really sure. He says,in response to one question, “like this is all, like you know, so blurry now...well the wholething is blurry. It’s two years ago. It’s hard to remember”.

[62] When asked whether his recollection would be better when he gave a statement topolice on December 1st, 2001, the day of Lucock’s death, or now, he said:

A. I don’t think it’s better now or then, to tell you the truth.

Q. Why is that?

A. Because I was drunk. And I don’t, it’s hard for me to say what reallyhappened, because I don’t really know.

[63] He repeatedly said he doesn’t know if he remembers events or if someone told himthings happened. He questions whether he is even lying to himself while he is testifying.

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He repeatedly professes that he doesn’t know what happened because he was drunk. Hedrank at least 9 bottles of beer and 14 single drinks of vodka that evening. The only part ofhis testimony that I accept is that he was extremely drunk.

[64] The doorman at Big Momma’s that evening was Shane Murphy. He too gave twostatements to police and testified at the preliminary inquiry before testifying at the firsttrial. He acknowledges embellishing and exaggerating his statements in material respectsbecause he was angry at Crosby. At trial he said :

I was intoxicated when I made the statement, like I said, and it was 15 minutesafter I was– a picture was painted for me by the officer that took me to the,where I made the statement.

Later on, after stating that he was not completely honest with the police, he said:

A. Don’t know what you mean by open. At that point, I was emotional. Iwas upset about the, about the whole because I found, I found out that,what had actually happened.

Q. You found out what had actually happened.?

A. Well I found out the guy’s condition, like that he was– what conditionhe was in. The officer told me that he–

Q. The officer told you that the young fellow was in serious condition.

A. He said he was going to die.

Later on he said:

A. ...on the way to the police station I was, I was led to believe, true or not,I don’t, I don’t know, but I was led to believe that, that Randy– well Idon’t want to–

Q. Was responsible for this.

A. Yeah.

[65] On cross-examination he was asked if at any time the police officer told him whathe believed happened. Murphy responded by saying:

A. I can’t say, I can’t say that he– see I don’t know– I can’t remember theexact words he used, but I know, I had the impression that–

Q. You told the jury that a picture was painted for you.

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A. Yes.

Q Now was the picture that was painted was the fact that this young ladwas on the verge of death?

A. Yes.

Q. And is it not true that as a result of that you got pissed off?

A. Yes.

Q. You got pissed off with Randy, correct?

A. That’s correct.

Q. And you went in and you gave a statement, and in giving that statementyou embellished some of your evidence, correct?

A. Yes. Yes.

Q. And, in fact, what you did is you blew it out of all proportion, correct?

A. I got to think about that. I embellished a lot.

Q. And by embellished, you exaggerated.

A. Yeah.

[66] As well in his testimony he expressed that when he stopped being angry he wishedthat he hadn’t spoken so strongly.

[67] In general, his testimony does confirm that there were lots of angry wordsexchanged between Crosby and Campbell and Lucock during and following the lasteviction. He expresses that he is unsure of himself in that it was a long time ago and hestates “I hardly remember”. He then says that eventually Randy kind of went across thestreet after them. He also confirms that he was never in any proximity to the actualconfrontation between Crosby and Lucock. He was not present and did not see whathappened.

[68] I have also considered the evidence of Crosby’s conduct after the fact. In terms ofhis conversation with his employees either that evening or the next morning, no witnessindicated there was any attempt by Crosby to influence them in what they said to thepolice. Crosby knew at that point in time that Lucock may have been seriously injured. Regardless of his degree of responsibility, his concern for the implications of whathappened was understandable.

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[69] There was also a good deal of cross-examination about Crosby’s conversation withthe police officers on the way to jail and whether Crosby made comments to the effect thathe was from the “old school” and had chosen to deal with the matter of Lucock’s andCampbell’s rowdiness in his own way. Crosby maintains that he made no such commentand that there was no discussion whatsoever about the incident with Lucock. He says therewas conversation about people smashing windows out of his other establishment, Mr. BigSubs, and the effect that had on his business. I have carefully reviewed the transcripts ofthe evidence of Constables Pittman and Johnson. They each confirm that they did not takenotes of the conversation at the time, although Cst. Johnson made general notes sometimelater on. Cst. Pittman confirms that he was speaking at trial strictly from memory. Histestimony, at page 102 of the transcript, includes the following:

A. . . . Mr. Crosby began a conversation, to say what was he supposed todo? “Put yourself in my shoes. You know, if somebody was in yourplace and they were causing trouble” - Now, again, recalling frommemory, it appears to me that, either he had asked if somebody wasoutside and they were throwing, breaking windows or something to thateffect, and I had said to him, “If they’re outside, you call us.” He said,“You know, I’m from the old school. I don’t call you guys foreverything. You know how it is. You know, there’s things you’ve gotto handle yourself.” It was just a conversation along those lines.

And at page 113 he confirmed again that he made no notes of the conversation, was goingstrictly from memory, and was trying to summarize what was said. And then the questionwas put to him “you are not telling the jury that you used his exact words?”, and heresponded, “not at all”. Then, following the presentation of a summary of the conversationto him by defence counsel, Cst. Pittman said:

A. Yes, although I thought he was not causing problems in the building butoutside, maybe throwing a brick through a window or smashingwindows from the outside. But you’re correct in, in the rest of it.

[70] Cst. Johnson confirms that Crosby asked a hypothetical question and added inrelation to that issue that Crosby referred to “down time” or “lost time” in the business. Iam of the view that these comments are more likely to relate to replacing broken windowsin the sub shop than in dealing with rowdy patrons at the bar. Cst. Johnson also stated, inresponse to a question from the Crown Prosecutor, that “there was nothing spoken in thepolice car concerning the case.” I am satisfied that none of the conversation in the policevehicle related to the matters now before this Court.

[71] I have gone into considerable detail in reviewing the evidence of events leading upto the fatal confrontation. The purpose in sifting through this evidence is to assess both Lucock’s state of mind as to whether he consented to a fist fight and Crosby’s state of mindas to whether he honestly believed that Lucock was consenting to a fist fight. In addition,if there was consent by Lucock, or an honest belief by Crosby, I then have to assess

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whether Crosby intended to cause serious bodily harm or harm beyond what would betransitory or trifling in nature, because such an intention would vitiate any consent orrender any honest belief a nullity.

[72] The Crown has the onus of proving beyond a reasonable doubt that Lucock did notconsent to engage in a fist fight with Crosby. The testimony confirms that in the severalminutes prior to the encounter Lucock had been mouthing off and was engaged in trash talktowards Crosby, notwithstanding that Campbell was doing even more of that. Campbelland Lucock had been at Big Momma’s three times and had been put out or were asked toleave each time. I have already found that Lucock participated in smashing beer bottles inthe bar. Lucock had been in fights before, including at Big Momma’s. Campbell confirmsthat while he and Lucock were travelling generally in a westerly direction towards Myronsor Dooly’s, Campbell, at least, was turning around and yelling in the general direction ofBig Momma’s and that both he and Lucock were being loud and rowdy and that Lucockwas “shooting off” and “running his mouth”. They were not happy at having been kickedout of Big Momma’s.

[73] Into this environment came Crosby. The only evidence we have of the directionLucock was facing is Crosby’s evidence that Lucock was coming towards him, fistsclenched, arms starting to come up and asking “where are your friends now?”. If I acceptthis evidence, then in my opinion Lucock had consented to fight.

[74] Madam Justice L’Heureux Dubé discussed the nature of one’s consent in R. v.Park, [1995] 2 S.C.R. 836. While the case dealt with sexual assault, its principles apply tothe present case. The two principal points to be taken from this case are that a victim is notrequired to verbally express their non-consent to any activity and, in order for any defenceof honest belief to be considered, it must have an air of reality after consideration of thetotality of the evidence.

[75] Do I accept this evidence from Crosby as being credible and reliable? Does hisclaim of having an honest belief that Lucock consented to fight have an air of reality? Hehad consumed some eight beer by that point in time that evening. He acknowledges he wasfed up with dealing with Campbell and Lucock, and he was annoyed, if not angry, withthem. However, Campbell’s evidence confirms there was no one else in the immediatevicinity of Crosby and Lucock. He confirms that Crosby and Campbell were yellingprofanities at each other – and that Lucock was also mouthing off at Crosby. Lucock wassufficiently close to Crosby to hear Crosby yelling. Given Lucock’s mood, it is hard toimagine that he would not turn around – if for no other reason than to hurl more abuse atCrosby. There is enough corroboration of Crosby’s testimony for me to conclude that hehas at least raised a reasonable doubt about whether Lucock consented to a fight or not. There is no onus on Crosby to prove Lucock did consent. The evidence shows, based onreason and common sense, that it cannot be said with reasonable certitude that the assaultoccurred without Lucock’s consent. That is what I conclude. Therefore, the Crown has

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failed to satisfy the third element of the offence. Even if I was of the view that it was morelikely than not that Lucock did not consent to a fight with Crosby, I would still be left witha reasonable doubt in that regard.

[76] When I come to assess whether the Crown has proven that Crosby did not have anhonest belief that Lucock consented to a fist fight, I am left with an even greater degree ofdoubt. In addition to all of the circumstances recited above, Crosby testified that he wasapprehensive about being jumped by Campbell and Lucock, especially when he was notaware of Lucock’s whereabouts. It would be very reasonable and very believable forCrosby to feel that way given the numerous threats to kill him, kick the shit out of him, andburn his place down with him in it. He knew Lucock had brawled before at Big Momma’s. The fact they were smashing bottles on the floor speaks to the degree of aggression in theirbehaviour – and that was before they had ever been kicked out. The fact that the two ofthem had come back on two occasions after first being evicted also shows their desire forconfrontation. This was evident as well from Campbell’s remarks to the police officer atthe hospital following the confrontation. Crosby was not in the immediate company of twoor three or four employees or friends who could come to his assistance. The setting wassuch that Crosby could have an honest belief that Lucock and Campbell, either together oralone, were anxious to engage him in a fist fight. It is not possible in these circumstancesfor me to conclude beyond a reasonable doubt that Crosby did not have an honest beliefthat Lucock was consenting to engage in a fist fight. In fact, I am of the view that Crosbydid have an honest belief, even if he may have been mistaken, that Lucock consented tofight. The Crown has therefore not succeeded in proving the fourth element of theoffence.

[77] Finally, there is not sufficient evidence from which I can conclude that Crosbyintended to cause serious bodily harm to Lucock. Crosby had two clear opportunities toengage either Lucock or Campbell in a fist fight while Crosby was still in the presence ofseveral employees or friends. In none of the various accounts of the evictions of Campbelland Lucock did any evidence show that Crosby acted beyond the scope of what wasnecessary to remove them from his premises. Greg Carson referred to Crosby’s removal ofa patron from Mr. Big Subs less than an hour before his confrontation with Lucock asbeing done “very professionally”. In terms of the actual force applied to Lucock, there isno evidence that put it at more than a mild to moderate degree of force. He threw onepunch and only one punch. He did not continue to pursue Lucock when Lucock turnedaway from Crosby and took a few paces before collapsing. He waited a few moments andthen returned to Big Momma’s. I do not find his departure from the scene to be unusualespecially given Foch Campbell’s continued presence and obvious unpleasant mood.

[78] Having reviewed all of the evidence surrounding the tragic death of Niall Lucock, Ifind that the Crown has failed to prove beyond a reasonable doubt that the application offorce by Crosby on Lucock was without Lucock’s consent or that Crosby did not have anhonest belief in such consent. I am not satisfied that there is sufficient evidence to show

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beyond a reasonable doubt that Crosby intended to cause harm that was more thantransitory or trifling in nature or to cause serious bodily harm to Lucock. I therefore findDouglas Randolph Crosby not guilty of the offence of manslaughter as charged.

Campbell J.

April 24, 2006