Supreme Court

                R. v. Green, 2007 NWTSC 21       S-1-CR-2006000038



                IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES



                IN THE MATTER OF:





                              HER MAJESTY THE QUEEN



                                      - and -



                                TYLER SAMUEL GREEN



                _____________________________________________________

                Transcript of the Oral Reasons for Judgment delivered

                by the Honourable Justice L.A.M. Charbonneau, sitting

                at Tuktoyaktuk, in the Northwest Territories, on

                February 20th, A.D. 2007.

                ____________________________________________________







                APPEARANCES:

                Mr. B. Lepage:              Counsel for the Crown

                Ms. K. Payne:               Counsel for the Accused



                  (Charges under s. 249(1)(a), 268, 267(a) C.C.)





       Official Court Reporters




1  THE COURT: Tyler Green is charged on a three-count indictment alleging that offences were committed on the 9th of December, 2005.  He is charged, first, with having operated a motor vehicle in a public place in a manner that was dangerous to the public.  He is charged with having committed an aggravated assault on Diamond Klengenberg by wounding him on the same date.  He is charged with having assaulted Diamond Klengenberg using a weapon, to wit: a knife.

2  At this trial, the Crown called Diamond Klengenberg, the alleged victim, as well as Constable Chris Pittman, a member of the RCMP who was involved in this investigation.

3  The Crown also filed two exhibits; Exhibit number 1 being a letter from Dr. Lawrence Fawcett.  That letter describes the injuries that were observed after Diamond Klengenberg was admitted to the Inuvik Hospital on December 9th, 2005.  Without referring to the letter in its entirety, it describes a "fairly large" laceration or cut to Mr. Klengenberg's left flank, an injury of approximately two to three centimetres in length and at least six to seven centimetres in depth, as well as another injury to Mr. Klengenberg's left wrist, and it describes the treatment that Mr. Klengenberg received for those injuries.

4  Exhibit 2 consisted of six photographs that show - in particular photographs number 2, 3 and 4 - this cut to Mr. Klengenberg's flank, and photographs 5 and 6 showed the same injury once it was cleaned by the staff at the nursing station.  That was the case presented by the Crown.

5  The defence called Sam Pingo, who is the accused's father, to testify about some of the events that he was aware of from the night in question.

6  Before referring to the evidence itself, I want to refer to some of the legal principles that apply in this case.  I do not propose to refer to all of the legal principles that apply in this case, but I want to underscore a few that are particularly relevant and which I have considered carefully.

7  The first, of course, is the presumption of innocence.  Mr. Green does not have to prove anything.  He is presumed innocent throughout this trial, and the standard of proof remains always with the Crown.

8  The second principle is that the standard of proof that the Crown is held to is a high one. It is proof beyond a reasonable doubt.  That means more than possible, likely or even probable guilt.  It is not the same thing as absolute certainty, but it is closer to absolute certainty than it is to probability.

9  Reasonable doubt can arise from evidence or from the lack of evidence.  It can also arise from the credibility of witnesses.  I remind myself, as I must, that in assessing credibility I can accept some, none or all of what a witness says.  It is not an all or nothing proposition.

10  So those are some, not all, but some of the legal principles that are applicable in this case, in my view.

11  There are a few things that are not in issue, it would seem.  There is no question that Mr. Klengenberg got injured and had to be treated for a fairly significant cut on his right side.  That injury is visible in the photos.  It is described in Exhibit 1.  It was also described by the police officer who testified.  I am satisfied that that is the type of injury in law which constitutes wounding within the meaning of section 268 of the Criminal Code.

12  As a matter of law, I am also satisfied that if it is proven beyond a reasonable doubt that Mr. Green attacked Mr. Klengenberg with a knife in the manner that was described in the evidence, that would constitute an assault with a weapon within the meaning of our criminal law.

13  I am further satisfied that if it is established beyond a reasonable doubt that Mr. Green chased Diamond Klengenberg with a snowmobile in the manner described by Mr. Klengenberg, trying to hit him or bump him to the point that Mr. Klengenberg had to hide behind some sort of a pole on the side of the road, that would make out the offence of dangerous driving under section 249 of the Criminal Code.

14  But the real issue in this case is, really, whether it has been proven beyond a reasonable doubt that Mr. Green did those things.

15  The only direct evidence that I have about what happened in that house is the evidence of Mr. Klengenberg himself.  In assessing his credibility - and we all know that the assessment of credibility is not an exact science - I have considered his demeanour as a witness.  I have noted that there were times where he did not answer questions directly or his answers were slightly off topic in comparison to the question asked, but I have also noted that this happened both when he was being asked questions by the prosecutor and when he was being asked questions by defence counsel.

16  His version of events is that he went to the house of Gale Jacobson in the morning hours of December 9th.  He had one drink before going there.  He had a glass while he was there, as I understand, but said that shortly after he got that glass Mr. Green came in.  He said Mr. Green became rowdy, that he pulled out a knife.  Mr. Klengenberg described that knife.  He said that Mr. Green swung the knife at him.  I should say that Mr. Klengenberg said that he came to the Jacobson house with Mason, but that Mason left before the incident itself actually happened.

17  Mr. Klengenberg said that this was how he got his injuries:  He said he got poked on the side with the knife and got injured on his hand or wrist trying to defend himself.  He said that he could not leave the house and that he ran to a room hoping to get out the window, but the window was boarded.  He said the accused came after him, that Mr. Klengenberg hid in a bathroom, that the accused stabbed at the door, and that at one point Sandra Chicksi came in, and at that point Mr. Klengenberg was able to run out of the house.

18  He further said that the accused chased him with a ski-doo, that he was, "trying to bump him," that at one point Mr. Klengenberg stood or hid behind a pole, which I understand to be either a telephone or electric pole on the side of the road, and eventually was able to go to Jessie Punch's, or Jessie Panaktalok's, residence and that from there he called the police.

19  Mr. Klengenberg was cross-examined by defence counsel.  He was challenged in many respects of his version of events.  He was unshaken in that cross-examination and reiterated several times that it was Mr. Green who caused his injuries and that it was essentially for no reason.

20  The second witness called by the Crown was Constable Pittman, and his evidence is important from the perspective of the timeline.  My understanding of Constable Pittman's evidence is that he got a call at 3:00 in the morning from Diamond Klengenberg.  At that point Constable Pittman was dealing with a prisoner in the cellblock at the detachment and was on his own, so he asked the caller to call back.  He testified that a few minutes later Diamond Klengenberg called back, and, based on the information he received from Mr. Klengenberg, Constable Pittman went to the Panaktalok residence, but Mr. Klengenberg was not there.

21  Then Constable Pittman said that based on what he learned at the Panaktalok residence he drove out to Reindeer Point, which, he says, is about five kilometres away and is where Diamond Klengenberg lives.  Constable Pittman went to that location, knocked on the door.  Judy Klengenberg answered.  Mr. Diamond Klengenberg was not there, but as the officers were leaving they saw Mr. Klengenberg walk towards them.  They determined relatively quickly that he had injuries, so they took him to the health centre.

22  Constable Pittman explained what happened at the nursing station.  That is when he took the pictures.  There were various things that were done by the nursing staff to deal with the injuries and assess Mr. Klengenberg's condition.

23  Constable Pittman said it took about an hour for him to deal with Mr. Klengenberg.  He testified that there was some indication that Mr. Klengenberg had been consuming alcohol, but my understanding of his evidence was that Mr. Klengenberg was not particularly intoxicated, which I note is consistent with Mr. Klengenberg's version about how much or how little he had had to drink that night.

24  After having been at the health centre, Constable Pittman and his colleague, based, again, on information they had received, went to the residence of Rita Green and Sam Pingo, the accused's parents.  He described asking Ms. Green if they could speak to the accused.  He said they waited outside.  He said they heard what he thought might have been yelling or thumping, although he acknowledged that this was muffled and he was not entirely sure what it was that was going on in the house.

25  He said that eventually Ms. Green came back to the door and was insistent that the police go in.  Then he described how they attended one of the rooms, that the accused was there, that he was upset, that Ms. Chicksi was also there and upset at the police.  Then Constable Pittman described how he tried to calm Mr. Green down. Fortunately, for all involved, the situation did calm down, settle down, and Mr. Green was taken outside of the residence without incident.

26  I should add that Constable Pittman testified that when they approached the residence he saw a snowmobile outside the residence matching the description that had been given to him by Mr. Klengenberg.  He noted that the muffler was warm.  He recognized the machine as Mr. Pingo's machine, and he testified that he had seen the accused driving that machine around town on previous occasions before this incident happened.

27  Now I turn to the evidence of Mr. Pingo, who testified that he, too, remembers the events of that night.  He said that he took his ski-doo out that night to go check on his dog team.  My understanding of his evidence is that he keeps his dogs about three-quarters of a mile out of town.  In cross-examination he was asked how long it would take to go and return, go to his dogs and return, and his answer was 20 minutes.  My understanding of the evidence is that he also said that on the night in question it took him about 45 minutes to check on his dogs.

28  Mr. Pingo said that he came back from dealing with his dogs shortly after 4, I believe he said 4:05 or 4:10 in the morning, and then about 20 or 25 minutes later was when there was a knock on the door and it was the police.  Mr. Pingo confirmed that his son was upset, that he did not want to go with the police.  He also testified that Mr. Green, his son, does not have permission to use his ski-doo and, to his knowledge, does not use his ski-doo.

29  I will pause here to note that under the circumstances of this case I draw no inference from the fact that Mr. Green was upset or confrontational at the point in time the police attended his residence.  I say this because what is commonly referred to as post-offence conduct can only be used to draw an inference of guilt if it is consistent with guilt and not consistent           with any other explanation.

30  In the circumstances, I am not saying that Mr. Green's behaviour was excusable or appropriate, but I am not prepared to draw any adverse inference from the fact that he was upset at that point in time, because there are other reasons why he might have reacted that way.  In fact, there are often situations where people do not necessarily react in the best of ways when they are being approached by the police, but that is not something that in the circumstances of this case I find helpful in deciding on what happened and the events alleged to have happened earlier on in the evening.

31  Part of what defence counsel has argued this afternoon is that it is not possible for things to have happened in the way Mr. Klengenberg described if Mr. Pingo's evidence is believed.  I have examined that argument carefully in light of the evidence, and I have come to the conclusion that even if I accept Mr. Pingo's testimony - and, in fact, I do - I do not think it means that Mr. Klengenberg's version is necessarily untrue or inaccurate.  This finding depends on how one understands the evidence about the timeline, as both counsel have pointed out.

32  My understanding of the evidence that I have on this timeline, if I start in the middle of it, is this.  From Mr. Pingo's evidence, it is shortly after 4:00 that he returns from having looked after his dogs, and he testified he was for about 45 minutes, which means that he would have left maybe around a quarter after 3, 3:30 or so, and he said that it is about 20, 25 minutes after his return that the police showed up.

33  Going back to what Constable Pittman testified to, he says he got the first call at 3 a.m., that Mr. Klengenberg had to call him back; he asked him to call him back a few minutes later.  Then Constable Pittman and his colleague had to go to the Panaktalok residence, then to discover that they needed to go to Reindeer Point, which is five kilometres away, and then they dealt with Mr. Klengenberg and brought him back to the nursing station and spent about an hour with him and then would have gone to the Green residence.

34  So on my understanding of that timeline, it all can very well fit together, because if the incident happened sometime before 3:00 in morning, Mr. Green and Ms. Chicksi would have been back at Mr. Pingo's residence before Mr. Pingo went out to deal with his dogs, take care of his dogs.

35  The one thing that remains unclear is how Mr. Klengenberg would have gotten to Reindeer Point, considering the evidence about how far it is and how much time it would take to walk.  But we know that the call to the police was made at 3 a.m. and that a relatively short time later police officers spoke to Mr. Klengenberg at Reindeer Point.  So I infer from that, and I find as a fact, that Mr. Klengenberg did not walk to Reindeer Point.  It is difficult to imagine how he would have walked five kilometres with the injury he had.  But, in any event, based on the evidence that I have heard, I am satisfied that he had to get there in some other way.  I do not recall Mr. Klengenberg testifying specifically as to how he got to Reindeer Point.  But, in any event, the most important part of this is that I find that when I look at Mr. Pingo's evidence, it does not, in fact, contradict the timeline that emerges from the Crown's case.

36  Now, Mr. Pingo also said Mr. Green did not have permission to use the snow machine, and Constable Pittman testified that he did see Mr. Green using it a number of times before all this happened.  This does not mean that Mr. Pingo did not tell the truth.  It may simply mean that sometimes his son uses his machine without his permission.

37  I accept that the warm muffler on the ski-doo that Constable Pittman was able to observe or feel is not proof that the snow machine was, in fact, used in the incident involving Mr. Klengenberg.  Because, as I have said, I do accept Mr. Pingo's testimony about what he remembers of that night, and I accept that he used his ski-doo to go check on his dogs,  and that may well explain why the muffler was warm.

38  So, having accepted Mr. Pingo's testimony, but having concluded that it does not actually contradict the timeline advanced in the Crown's case, I am left with having to consider the Crown's evidence, because, of course, it has to satisfy me beyond a reasonable doubt of the accused's guilt, and this is now what I must turn to.

39  The only evidence about what happened or what caused Mr. Klengenberg's injuries is the evidence of Mr. Klengenberg.  As I have said, he was not shaken on cross-examination.  There is no other evidence, in my assessment of it at least, that contradicts his version.

40  There are some concerns about the manner in which he testified, but, as I have said, I noted some of these concerns seemed to emerge equally Crown prosecutor was questioning him and when the defence counsel was questioning him.  So my assessment is not that Mr. Klengenberg was trying to be evasive.  He seemed to have difficulty understanding some of the questions, but I do note that despite firm cross-examination by defence counsel, who, as was her duty to do, challenged him thoroughly on what he had said, he remained firm and insistent that it was Mr. Green that stabbed him and injured him.

41  I have considered carefully whether a reasonable doubt arises from the lack of evidence in this case.  As I raised when I asked questions of Crown counsel during submissions, I have taken into account that Gale Jacobson was said to have been present during these events; that Sandra Chicksi was also said to be present; that Mason, whatever his last name is, was at least there for the beginning or part of it; that there was no evidence of a knife being found; no evidence, in fact, of a search for the knife or no other evidence that corroborates the version of Mr. Klengenberg, apart from the injuries.  But I cannot speculate about what this evidence would be or why it was not called.

42  In the end, it comes back to the simple question of whether or not I can accept Diamond Klengenberg's testimony about how he got injured.  Based on how he responded to the questions and how firm he was and observations I made during his evidence, I do accept his evidence, and I am satisfied that he was injured in the manner he described by Mr. Green.

43  For those reasons, I am satisfied beyond a reasonable doubt that Mr. Green was the one who stabbed him, and, for reasons I have already given, in my view, that means that Mr. Green must be convicted on all three counts of the indictment.

                    .....................................



                                       Certified to be a true and
                                       accurate transcript pursuant
                                       to Rules 723 and 724 of the
                                       Supreme Court Rules.



                                       ______________________________

                                       Jill MacDonald, CSR(A), RPR
                                       Court Reporter