R. v. Cocks

2014 BCSC 1294 R. v. Cocks IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cocks, 2014 BCSC 1294 Date: 20140711 Docket: 25910 Registry: Vancouver Regina v. Norman Cocks, Robert Thomas, Robert Cocks, Daniel McRae, Matthew McRae and Anson Schell Restriction on publication: Pursuant to section 486.5(1) of the Criminal Code of Canada until further order of the Court. Before: The Honourable Mr. Justice McEwan Reasons for Judgment Counsel for the Crown: J. Bellows Q.C. C. Fleischhaker and K. Boland Counsel for Robert Cocks: M. Foster Counsel for Daniel McRae: R.A. Ross Counsel for Matthew McRae: H. Brown Counsel for Anson Schell: D. Johnson Place and Dates of Trial/Hearing: February 3-6, 11-13, 17-19, 25-27, March 4-6, 10-13, April 1-3, 7-9, April 11, 16-17, 22-24, 28-30, May 1 and May 5-7, 2014 Place and Date of Judgment: Vancouver, B.C. July 11, 2014 I [1] On June 12, 2011, at about 6:40 p.m., Dain Phillips, a 51 year old man, was severely beaten by men wielding baseball bats and hammers. He was left bleeding on the middle of McCurdy Road, a public highway at or near the Rutland area of Kelowna, British Columbia. He never regained consciousness and was taken off life support on the morning of June 13, 2011 at Kelowna General Hospital. [2] Two men, Norman Cocks and Robert Thomas, both members of the Hells Angels, pled guilty on January 30, 2013 to manslaughter in relation to Mr. Phillips' death. [3] This proceeding addresses charges of manslaughter laid against four others arising out of the same event: Robert Cocks, Daniel McRae, Matthew McRae, and Anson Schell. It engages consideration of the degree of each accused's participation either directly, or as a party, pursuant to s. 21 of the Criminal Code, R.S.C. 1985, c. C-46. That provision reads: 21. (1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [4] The encounter on McCurdy Road was not a random event. There is a considerable back story that has its genesis in conflict between two of the accused, the brothers Daniel and Matthew McRae, and two sons of the deceased, Kaylin and Kody Phillips. The McRaes and the Phillipses, supported in each case by a group of friends, came to the encounter on June 12, 2011, with expectations that are at the heart of the factual enquiry in this case. There is considerable evidence about a series of events leading up to the encounter and at the encounter itself, including the evidence of three people who occupied a car at the intersection of Gibson Road and McCurdy, near the scene. They had no involvement in the events except to observe what happened. [5] It is a matter of happenstance relative to the encounter on McCurdy Road that Norman Cocks was under police surveillance in connection with other investigations. There are therefore voice interceptions of his interactions with each of the accused and among the accused at various locations, including the Cocks' home at Horning Road, in Kelowna; at a "shop" located on Leathead Road in Kelowna, sometimes called "Little Mexico"; and in his vehicle. The police also had a camera trained on the Cocks' home that permitted the police to observe it, although it did not record. A police officer noted activity at that residence at times that are relevant to this case. [6] The evidence falls logically into three parts: (1) events before the encounter at McCurdy Road; (2) events at McCurdy Road; and (3) events following the encounter at McCurdy Road. I will address each in turn. I will then outline my appreciation of the applicable law. I will follow this with the positions of each party, an analysis of the facts and law pertinent to each of the four accused, and conclude as to whether in each case the Crown has made out the charge of manslaughter beyond a reasonable doubt. II [7] The evidence leading up to the encounter of June 12, 2011 logically begins with a posting by Kody Phillips on Matthew McRae's Facebook wall regarding a fight with a young man named Sean Wagner. Daniel McRae testified that Mr. Phillips had suggested that Matthew McRae had "jumped" Mr. Wagner with another person using words to the effect that it took two of them to beat up Mr. Wagner. [8] The Facebook record shows that Matthew McRae and Kody Phillips had an exchange on May 11, 2011, that broke off with an observation by Mr. Phillips about how childish the dispute was. [9] Daniel McRae testified that sometime after this exchange he heard that Kody Phillips was still talking about this issue. On May 23, 2011 at 11:29 p.m. he began another Facebook exchange with Kody Phillips by asking "what the fuck are you posting shit on my brother's page for?" The two go back and forth for about 25 minutes taunting each other. During the course of the exchange, Daniel McRae asks to meet up, apparently to fight, and Kody Phillips answers back saying he was not going to waste the gas to meet up and do so. He also alludes to an incident some years earlier when he threw Daniel McRae into a fire. III [10] The next material event occurred in the early morning hours of Saturday, June 11, 2011. On that occasion Daniel McRae had been at a pub in downtown Kelowna, with his friends Thomas Vaughan and Alexander Adams. On their way home, Mr. McRae noticed Kody Phillips' vehicle and directed Mr. Adams, who was driving, to follow Mr. Phillips. Mr. McRae testified that his purpose was to talk to Mr. Phillips about the May 23, 2011 exchanges. [11] Mr. Phillips eventually pulled into the driveway of a house he shared with his older brother, Kaylin. Kody and his girlfriend, Hayley Spencer, were sitting in the driveway eating some fast food they had purchased, when McRae and Mr. Vaughan got out of the Adams' vehicle and approached the vehicle. Voices were raised and Kody ran to the house and called for his brother Kaylin. Kaylin came out and asked what Mr. McRae was doing on his property, and slapped and pushed him back into the Adams' vehicle. The accounts of the various participants and observers differ to some extent, but it is clear that Mr. McRae had Mr. Adams follow the Phillips' vehicle in order to confront Kody Phillips, and that he and Mr. Vaughan were aggressive towards him. [12] Shortly after he left the Phillips residence, Mr. McRae telephoned to apologize for coming. IV [13] The next incident occurred on June 12, 2011. Kaylin Phillips and his girlfriend Kathline Delgatty were at a recycling area on Leathead Road picking up boxes for an intended move. A telephone interception at 12:45 p.m. on that date between Norman Cocks and Daniel McRae suggests a plan to go dirt biking. Daniel McRae went to Norman Cocks' house on Horning Road. He arrived at about 1:15. Daniel McRae and Norman Cocks then proceeded to 990 Leathead Road where Norman Cocks had a shop in an area they called "Little Mexico." Daniel McRae saw Kaylin Phillips in the recycling area. He pointed out Kaylin Phillips to Norman Cocks and said words to the effect that Kaylin Phillips was the "idiot" from the other night. [14] Norman Cocks had earlier heard about the incident at the Phillips house from Mr. McRae. Mr. McRae acknowledged that he had also told Mr. Cocks that Kody Phillips was saying his "boss" was a member of the Hells Angels. This was verified by Ms. Spencer, who had only briefly been Kody's girlfriend, but had heard him say something similar. [15] Norman Cocks immediately turned into the recycling area and accosted Kaylin Phillips. According to Kathline Delgatty, Mr. Cocks showed Kaylin his forearm and asked "Do you see this fucking tattoo? Do you know what this fucking means?", and when Kaylin said "no", punched him in the head. Mr. Cocks addressed Kaylin as "Kody" and, when Kaylin told him he was Kody's brother, Ms. Delgatty said that Mr. Cocks replied "Well, you'd better tell your fucking brother to keep his mouth shut," and to pass a message on that "we're coming for him." [16] Kaylin Phillips said that Mr. Cocks drove a red Dodge truck into the recycling area. He recognized his passenger as Mr. McRae but had never seen Mr. Cocks before. His version of events is similar to Ms. Delgatty's. He says he was referred to as Kody, denied that he was Kody, shown the tattoo, hit in the head, and told to pass a message to his brother that the Hells Angels were looking for him. [17] Mr. McRae suggests that after he identified Kaylin as "the idiot" from the other night, that there was no conversation at all with Mr. Cocks as to what he was about to do. [18] All of the evidence is that the Phillips brothers did not know Norman Cocks and Norman Cocks did not know them. What Norman Cocks knew of the Phillips brothers came from whatever he had been told by Daniel McRae or others. Mr. McRae had imparted at least two kinds of information: that Kody had purported to be connected with a member of the Hells Angels, and that there had been a recent altercation at the Phillips brothers' house involving both Kaylin and Kody. [19] There is considerable evidence of a strong friendship between Daniel McRae and Norman Cocks. Daniel McRae knew Mr. Cocks was a member of the Hells Angels. Although it is difficult to credit Mr. McRae's suggestion that he was mute throughout the encounter with Kaylin at the recycling depot, it certainly appears that he did nothing to clear up Mr. Cock's impression that Kaylin was Kody. [20] By this point in the chain of events, it is clear that Norman Cocks had concluded, on the basis of what Mr. McRae had told him, that he had a score to settle with Kody. He had also collaterally assaulted the man Mr. McRae had identified as the "idiot" who had assaulted him from the other night. Even on Mr. McRae's minimalist version of his communication with Mr. Cocks, it is clear that Mr. Cocks had been enlisted in a cause against the Phillipses that coincided with Daniel McRae's own sense of grievance. V [21] The next incident follows Kaylin Phillips' report to his father Dain Phillips about what had happened at the recycling depot. He had gone to his father's house with Ms. Delgatty. They called Kody and told him to come over. After some discussion about the threat that had been made, Dain Phillips and his two sons decided to go to the McRae house. Both Kody Phillips and Kaylin say the purpose was to solve the problem rather than to engage in a fight. They went to the McRae residence in Dain Phillips' truck. [22] In the meantime, Norman Cocks and Daniel McRae had continued to the nearby shop in "Little Mexico", loaded their dirt bikes in the back of Norman Cocks' vehicle and headed to the McRae house to pick up goggles, gloves and a helmet. On the way back from the McRae house, Mr. McRae noticed Kody Phillips go by in a truck. He and Mr. Cocks headed after it and found it parked across the McRae driveway. Kody and Kaylin got out of the vehicle, and the truck began to accelerate towards the Cocks' vehicle. This led to a bizarre car chase with Dain Phillips pickup truck pursuing Norman Cocks' pickup truck nose to nose, that is, with the Cocks' vehicle in reverse, at speeds of 50 - 60 kilometres per hour through a residential neighbourhood. The chase ultimately broke off without injury or damage. Daniel McRae told Mr. Cocks that the driver was the man that Kody Phillips had been saying was his "boss" or a Hells Angel. A neighbour named Edward Seitz witnessed the chase and placed a 911 call at 3:01 p.m. to report the incident. [23] Following this chase, Norman Cocks obviously had a direct stake in what had, to that point had been Daniel McRae's reports of Kody Phillips' behaviour and of the McRae brothers' trouble with the Phillips brothers. The allegation about Kody claiming an association with the Hells Angels is a matter of some significance. [24] The evidence respecting this comes from RCMP Detective Sergeant Isnor whom the Crown sought to qualify as an expert on the Hells Angels in a voir dire. A ruling was postponed until there was a clearer evidentiary foundation for its reception. As it happened, the Crown ultimately did not seek to introduce this evidence, and it was later tendered as part of the case for the defence. In its submission, the Crown excerpted portions of Det/Sgt. Isnor's evidence, which encapsulates the Hells Angels' expectation that Mr. Cocks would do something about Kody Phillips: the Hells Angels were built on a reputation of conducting business with violence that has been established over the past 65 years. The history has provided each and every Hells Angels member with a reputation that gives them a psychological edge over rival gangs, the criminal subculture and to a certain extent the general public. It is an unwritten rule that the Hells Angels members must be a hundred percent devoted to the Hells Angels organization and have it completely at heart. Therefore, if a Hells Angel is threatened, embarrassed or disrespected the member must act to uphold the reputation of the HA organization. Depending on the significance of the situation the retaliation could vary from an apology, to an assault, to grievous bodily harm, to possibly death. Any member that fails to uphold this reputation would be dealt with by expulsion or termination from the Hells Angels and on occasion will receive a beating for their failure. Therefore, it is my opinion that if a member of the Hells Angels was threatened, embarrassed or disrespected by a non-member, the HA member would retaliate by confronting the person who threatened, embarrassed and disrespected them. The type of retaliation would depend upon the severity of the threat, embarrassment or disrespect, and would result in either an apology, a common assault, grievous bodily harm or death. If the Hells Angels member failed to act in the situation where the member was threatened, embarrassed or disrespected, the member would face expulsion or termination from the Hells Angels and on occasion would receive a beating for their failure. He also said: Another unwritten rule for the Hells Angels is a member must be ready at all times to help and assist another member in the time of need. There are no obligations on the part of other Hells Angels members to do so, but it is looked down on by other Hells Angels members if you do not come to the aid of the fellow HA member. A failure to assist a Hells Angels member when the reputation of the Hells Angels is threatened, embarrassed or disrespected would result in the Hells Angels member that failed to assist being dealt with by expulsion or termination from the Hells Angels and on occasion would receive a beating for their failure. [25] The first thing Mr. Cocks did after the car chase was to phone his housemate, Robert Thomas, who was also a Hells Angels' member. The call was urgent: "Fuck where are you? Fuck I need to see you right now." Daniel McRae was with Mr. Cocks in the truck when the call was placed. VI [26] The next thing that happened was that Dain Phillips, his sons, and several of their friends gathered at the Phillips home, while the McRaes and several friends gathered at the Horning Road residence of Norman Cocks, Robert Thomas and Robert Cocks. [27] At the Horning Road house, a neighbour, Michelle Wells, saw five or six men in the driveway and overheard one man saying "can you believe that he drove his truck into my driveway?" or words to that effect. She said the speaker was belligerent and disparaging. This was almost certainly Daniel McRae. [28] Matthew McRae, Anson Schell, Thomas Vaughan and Alexander Adams also assembled at the Horning Road house. After they had done so, they, Daniel McRae and Norman Cocks set out in two cars to search for the Phillipses. Norman Cocks went with Matthew McRae and Anson Schell while Daniel McRae went with Thomas Vaughan and Alexander Adams. After spending some time looking fruitlessly, they returned to Horning Road. Daniel McRae used Anson Schell's cell to call Kody's cell phone. There was a discussion with Kaylin. Daniel McRae suggested a meeting at the top of McCurdy Road. The Phillipses, including Dain Phillips, agreed to go. [29] Kaylin left the Phillips house with his friend Doug Chase. His father left with Kody. They were joined at the top of McCurdy Road by Brandon Rousell and Tyler Patola. After waiting several minutes in that location, during which time the McRaes did not appear, Kaylin, Doug Chase, Dain Phillips and Kody left the site and headed back down McCurdy Road. They stopped again at the intersection of McCurdy Road and Gibson on one side and McKenzie on the other. The Horning Road house is uphill from the intersection, in a subdivision accessed by McKenzie Road. Brandon Rousell and Tyler Patola had a flat tire and were delayed at the top of McCurdy. The two Phillips' vehicles stopped just uphill of the intersection. [30] At the Horning Road residence evidence as to what was taking place was available as a result of the placement of the police non-recording camera near the driveway pursuant to another police investigation. [31] Constable Peter Geldart testified that as a result of some intercepted telephone conversations he activated the camera at 6:25 p.m. and began to monitor it. He saw three vehicles in the driveway, including a Dodge pickup that was light in colour and a darker Ford F-150 pickup. He saw people approach both vehicles, the lighter coloured Dodge first. A male approached the Ford within moments of turning the camera on and placed a light coloured baseball bat in it. The person was wearing a dark shirt and a baseball cap. He was about 5'6" and appeared to be in his 40's. [32] Cst. Geldart also saw a younger male in his mid-20's go past the side of the Dodge truck, and open the door, then turn back towards the house at about 6:30 p.m. He saw back and forth movement between the vehicles and the house between 16:24 - 16:35. At 16:34 he said six males walked to the rear of the residence and got into the Dodge. It drove west on Horning Road at a rapid rate of speed. [33] At 6:38 he saw Norman Cocks near the driver's side rear door of the F-150. He explained that he had observed Mr. Cocks on previous occasions, and knew him to see him. Cst. Geldart saw another male who was taller than Norman Cocks get in the Ford F-150. The vehicle left, going west on Horning Road in the same direction as the Dodge had gone. [34] The Ford F-150 returned from the left of his viewing position, at 16:45. A Dodge truck came and then backed out. The Ford F-150 went through, then the Dodge drove back in. He saw an unknown male walk off down the street. A motorcycle went west through his view. At 6:51 three males got in a Chevrolet Malibu in the driveway and took off in a hurry. Cst. Geldart could not see who was driving. [35] Michelle Wells noticed a "flurry of activity" at 6:51 p.m., just before she and her daughter left their home. She saw Robert Cocks walking up the driveway. He looked directly at her and went up the backstairs and into the house. She saw a red truck being parked at the rear of the residence, then saw it back down the driveway and a navy blue truck go to the back. She wrote down the license number, DE8425. This is admitted to be the license number of a blue 2004 Ford F-150 owned by Robert Thomas. The red truck is admitted to be that of Norman Cocks. Ms. Wells saw the red truck parked in the driveway once the blue truck was behind it. [36] After she saw Mr. Cocks go into the residence she saw three other men. She saw the driver of the blue Ford drop a metallic object in the back of the red truck. She saw a passenger get out of the blue Ford and thinks the driver gave him a dark object 6 - 8 inches in length and 3" in diameter. She said the driver was giving commands to the passenger in an urgent tone. She saw the driver go up the backstairs and into the house. She saw the passenger near the meter box at the side of the house, and a third man she thought was East Indian or Middle Eastern by the garage. She heard the garage door going up and down. She saw Robert Cocks and three other men. Just before she left home she saw a greyish car leave. She thought Robert Cocks was the driver and that he had passengers. [37] Alexander Adams testified that before they left Horning Road, he saw Daniel McRae, Matthew McRae and Anson Schell retrieve objects from the side of the garage and put them in the bed of Thomas Vaughan's truck. He said they were pole-like objects made of metal, two feet long and a half inch in diameter. He testified that they were later hidden at a lot near the "Little Mexico" shop. [38] The observations of Michelle Wells and Cst. Geldart respecting the time the vehicles left Horning Road and returned, a period of some seven minutes, dovetails with the evidence of two witnesses who saw the attack on Dain Phillips at 6:41 and called 911. These were Doug Chase and Edna Pichler. She observed the confrontation from below, while stopped on Gibson Road as a passenger in a car driven by her granddaughter, as it turned left and stopped further down McCurdy Road from the scene. VII [39] This brings matters to the actual events in the span of a few minutes during which the encounter with Dain Phillips took place. [40] The two vehicles that came from the Horning Road residence were Thomas Vaughan's truck and Robert Thomas' Ford F-150. Given the difference in the times of their departure, it appears that Mr. Vaughan waited for Mr. Thomas to catch up before both vehicles drove to McCurdy and parked facing uphill roughly opposite the Phillips vehicle. [41] Both Kody and Kaylin Phillips say the first person out of the arriving vehicles was Robert Thomas, the driver of the Ford F-150. It is not clear whether Dain Phillips left his vehicle as the other parties arrived, or was already standing on the road. Kody says that Mr. Thomas was yelling "You wanna fuck with the Hells Angels" and carrying a ball-peen hammer in one hand and a bat in the other. He said Dain Phillips was holding his hands up in a surrender-like gesture and was not holding anything. Mr. Thomas struck Dain Phillips almost immediately on the left leg with the bat. The other person who emerged from the F-150 was Norman Cocks. Kody said Mr. Cocks hit his father on the head with a bat. [42] Kody also said he saw a short slim man of about 60 years of age and glasses get out of the same truck. He identified Robert Cocks as this person. He says Robert Cocks and Anson Schell ran around to his side of the truck. [43] Kaylin Phillips said that his father was already out of his truck by the time he got out of his. He said his father had nothing in his hands and said "I'm not here to fight" to which Thomas said "You're going to get it, big man." Kaylin said Mr. Thomas swung the baseball bat with both hands at this father's upper leg, then on his lower leg. Kaylin said the man who had hit him at the recycling depot, and who had been the driver of the truck his father had chased hit his father on the head full force with a hammer. [44] Kaylin said that three or four men emerged from the F-150. The evidence suggests this was Robert Thomas, Norman Cocks and Robert Cocks as well as the large dark man that figures in some accounts. [45] Doug Chase, who was with Kaylin in Kaylin's truck, said he went to the scene to ensure that everything would be alright. He considered Kaylin to be like a brother, inasmuch as he was married to Kaylin's girlfriend's sister. He understood that Kaylin expected a fight with Daniel McRae. He said that they did not bring weapons. He estimated that they were at the "top" of McCurdy Road for about five minutes before they moved down to the McCurdy/McKenzie/Gibson's intersection. They parked ahead of Dain Phillips, who was with Kody. Within minutes, he said he saw a blue Ford F-150 and a white Dodge stopped at the stop sign where McKenzie intersects McCurdy. He said he and Kaylin were still in Kaylin's truck when they observed this, and that Dain Phillips had already been out of his truck and at their window to suggest they go home, before returning to his truck. [46] Mr. Chase said that when the vehicles pulled up on the other side of the road he and Kaylin got out. He said neither of them had weapons. He said three or four people got out of the Ford F-150 and began walking towards Dain carrying bats and hammers. He said the occupants of the white Dodge were also approaching. His recollection was that the driver of the Ford F-150 had said "every one of you pieces of shit are going to get it." He said the driver was wearing gloves that appeared to have "metal knuckles" on them. Mr. Chase thought that after Dain Phillips was struck by the first two individuals more people jumped on him and began hitting him as well. He said after the attack started Kaylin got an axe out of the back of the vehicle and started swinging it towards the attackers. He said Kody did the same with a shovel. They had not retrieved these objects from their vehicles before the attack began. [47] Edna Pichler, who was on Gibsons Road, testified that she saw five or six men exit what she called the black and white pickup trucks. She said they approached an older man and three younger boys, and she heard him say "what the fuck is your problem, leave us alone." She said the man held his arms out in a gesture like he was holding the boys back. She said the boys were yelling and swearing and being aggressive. [48] Kassandra Conway was the driver of the Edna Pichler's vehicle. She was taking a driving lesson. She said she saw a man get out of the blue Ford return to it and get a baseball bat. She said she saw him raise it above his head. [49] Heather Conway was a passenger in the vehicle her sister was driving. She saw the red and white vehicles parked on the north side of McCurdy Road and the black truck and the white truck stop on the south side. She saw a man come out of the "black" truck with a bat and hit the older man in the knee and on the head. Then she saw a man grab a shovel from the bed of the red truck. [50] Alexander Adams testified that the Phillips vehicle was on the north side of McCurdy with Kaylin's truck closest to McKenzie (that is, it was the lead vehicle as between it and Dain Phillips' vehicle) and that the Thomas and Vaughan vehicles were on the south side of the road. Mr. Adams said he saw Kody and Dain Phillips get out of their vehicle, with nothing in their hands. He said Kaylin was not carrying anything either. He saw Robert Thomas with a wooden object although he could not be sure what it was. He said Norman Cocks was holding some kind of object as well. He said Robert Cocks was holding a straight object about a foot long. He said all three were wearing gloves. He said Daniel and Matthew McRae and Anson Schell left the Vaughan vehicle and moved toward the Phillips red pickup truck at a "fast paced jog-type deal". He did not see if they had weapons. Mr. Adams suggested he did not see the event itself but heard Kody yelling about his father and calling for police and an ambulance. He saw Kody swinging a shovel and Kaylin swinging an axe at Matthew. He saw Daniel, Matthew and Anson Schell get back into the vehicle in a rush. Mr. Adams confirmed that there was a "dark coloured goliath" from the other vehicle but he was not aware then where Robert Cocks was. Mr. Adams says Mr. Vaughan's vehicle left the scene first but was overtaken by the Thomas vehicle which turned up Latta Road to go back to Horning. [51] Wyatt Erfle testified that on June 12, 2011, in the afternoon, he had been with Matthew McRae shooting at Posthill when Matthew got a call from Daniel which caused them to go back to town. They stopped off at Matthew's house to drop off the guns and then proceed to Horning Road. Matthew had said Daniel was in trouble. [52] He said he did not want to be part of what was going on and wanted to be dropped off, but that Matthew would not let him. He said that at the Horning Road house he hung out in the driveway with Daniel and Matthew and another man he had not met before. He said when Thomas Vaughan arrived they hopped in his truck. By that time Anson Schell had arrived. Mr. Erfle did not recall the specifics of the conversations at Horning Road. He said he hopped in the truck because Matthew told him to. He said he did not know what they would be doing. Mr. Erfle said he was sitting in the middle of the back seat. He said there was no conversation on the way. At McCurdy Road he said he saw a white pickup truck he associated with Kaylin Phillips and a red pickup at the side of the road. He said Kody and Kaylin were out of their vehicles. He did not see anyone else. He said one of the Phillips said "lets fucking do this, you pussys." He said Kaylin had an axe and Kody had a shovel, or it might have been the other way around. [53] He said he, Mr. Vaughan, the driver, and Alexander Adams all stayed behind as Daniel, Matthew, and Anson got out. He said they had nothing in their hands and he had not seen them load anything. He did not see anything that happened. He heard one of the Phillips say "you're dead" before Daniel and Anson and Matthew jumped in the truck and they took off, eventually ending up at the shop at "Little Mexico". [54] Mr. Erfle said he put his head down in the vehicle because he did not want the Phillips brothers to see him. He said he was scared when he saw them with weapons. He thought the whole thing went very quickly and estimated 30 - 40 seconds. [55] Tyler Patola testified that he had been with Brandon Rousell on the afternoon of June 12, 2011 when Kody called and asked them to come to Mr. Phillips' house. He did not give a reason. He went in Brandon's Toyota 4 Runner. He said they were at the Phillipses residence for about 15 minutes. They then went to Tower Ranch Golf course at the top of McCurdy Road. They were following both Dain Phillips' red truck and Kaylin's truck. He said there was an energetic atmosphere at the Phillips residence. Mrs. Phillips was upset and asking them not to go. Mr. Patola at one point said he did not know there was going to be a fight and at another that they were preparing for a confrontation. [56] When they got to the top of McCurdy, Mr. Rousell's vehicle had a flat tire. They stayed to fix it while the other two vehicles went back down the hill. Mr. Rousell and Mr. Patola were coming back down McCurdy when they saw people getting into a white truck facing up the road. Mr. Patola said at least one person was carrying a black pipe. He thought the truck was moving as the person with the pipe got into it. Its tires were spinning. After the person got in it drove off up the hill. [57] Mr. Patola said they could see that Dain Phillips was lying in the road. He said Kody and Kalyn were standing in the road and that Kody had a shovel. He did what he could to assist with Mr. Phillips. VIII [58] Daniel McRae's version of what happened leading up to the confrontation on McCurdy Road was that after the chase between Dain Phillips and Norman Cocks broke off, he and Norman had some conversation in the vehicle in which Norman asked who that was, and Mr. McRae answered that he thought that was the person Kody referred to as his boss, a Hells Angel from Vancouver. Norman Cocks said he did not know recognize him and that he knew all the Hells Angels in Vancouver. They then proceeded to the Horning Road residence. Mr. McRae said Norman Cocks called "someone". The evidence suggests that this was Robert Thomas. [59] Mr. McRae called his brother Matthew who was up at Posthill shooting. He told Matthew to come to Norman's house. He also asked Thomas Vaughan and Anson Schell to come. The intention was to meet up for a fight. There was discussion of the car chase. [60] Mr. McRae said that after his friends showed up they drove around looking for Kody. The people involved were Mr. McRae, Matthew McRae, Anson Schell, Alexander Adams, Thomas Vaughan, and Norman Cocks. They took two cars. Mr. Vaughan had Mr. McRae and Alexander Adams with him and Mr. Cocks had Matthew McRae and Anson Schell. When this search proved fruitless, the group returned to Horning Road. While there, Mr. McRae called Kody Phillips. There was some back and forth about where to meet. On the second call Kody Phillips passed the telephone to Kaylin and he and Mr. McRae agreed to go to the top of McCurdy Road. [61] Mr. McRae said that the intention was to go and have a fist fight. He said he expected the participants to be Matthew, Anson, Thomas Vaughan, and Norman Cocks. He knew Norman Cocks was not too happy with the driver of the truck and wanted to punch out the "big dumb fuck." [62] Mr. McRae said that from the Horning Road house he heard the sound of a diesel truck go by on McCurdy Road below, and assumed it was the Phillips truck. He said they hopped into Mr. Vaughan's truck with Alexander Adams in the front centre, Mr. McRae in the front passenger seat, and Matthew McRae and Anson Schell in the back seat. He said he did not load any weapons in the truck. [63] He said they proceeded slowly to allow Norman Cocks to come along in another vehicle. They caught up before the intersection. He said Mr. Cocks was expected to fight the driver of the red truck. [64] Mr. McRae said he tried to signal a move back up to the top of McCurdy but that the blue truck following them stopped and so they stopped as well. Mr. McRae said he looked back and saw Mr. Cocks and Mr. Thomas get out of the vehicle and walk towards Dain Phillips, who was standing by the driver's side door of the red truck. He and Matthew and Anson Schell began to jog toward the red truck when they saw Dain Phillips hit on the leg and head. He said he stopped 25 to 30 feet away from the scene and said he never participated in any physical contact with Dain Phillips. He said Anson Schell and Matthew did not get as close as he did. He said they did not have weapons and they immediately returned to the vehicle. Mr. McRae said that Kaylin had an axe and Kody had a shovel. He said Kaylin almost hit Matthew in the back of the head and that Kody was swinging the shovel around hysterically. The back door was locked and Mr. Vaughan started driving and Matthew got in as the vehicle was moving. He said Kody was yelling, "you hit my dad" and "you guys are dead". [65] Mr. McRae said Robert Cocks was at the tailgate of the blue Ford F-150. He had seen him at the house. He said Mr. Vaughan and his passengers all went to "Little Mexico" and waited outside because they did not have a key. [66] Mr. McRae reiterated that he went to McCurdy Road expecting a fist fight in which Norman Cocks would meet Dain Phillips, he and Matthew would take on the Phillips brothers and the others would take on others. [67] Mr. McRae confirmed in cross examination that there was a tall man at the scene as well who was a friend of Norman Cocks. He did not see Robert Cocks get closer to the scene than the rear tailgate of the blue truck. [68] Mr. McRae acknowledged that by 2011 he and Norman Cocks were very good friends. Thomas Vaughan and Anson Schell and Alexander Adams were also his good friends. He and Mr. Cocks called each other almost every day. Norman called him "Knob" or "Little Knob". Mr. McRae had known Mr. Cocks was a Hells Angel for years. He also knew Robert Cocks was a member of a local motorcycle club. [69] Mr. McRae agreed in cross examination that he strongly disliked Kody, but had less animosity toward Kaylin. He said that his apology after the confrontation with Kody at Ziprick Road was genuine and he was sorry for getting Kaylin involved that evening. He acknowledged discussing the incident at Thomas Vaughan's house later that Saturday in Norman's presence. He nevertheless said "there's the idiot from last night" to Norman when he saw Kaylin at the recycling depot. He said he just thought Mr. Cocks was going to talk to him. He said he was not still angry at Kaylin. He said he had no idea what set Mr. Cocks off on Kaylin, although he acknowledged that he had told him the month before about Kody saying he had a connection with the Hells Angels. He did not intervene to correct Norman Cocks' mistake about Kaylin's identity. He said it happened fast and that the incident upset him, because he did not think that was how it was going to go down. [70] Mr. McRae acknowledged that the truck chase incident was very frightening to both him and to Mr. Cocks and that when it was over Mr. Cocks said he was going to "punch out that big dumb fuck." He told Mr. Cocks that that man was the one Kody said was a Hells Angel. Mr. McRae acknowledged that Mr. Cocks had two reasons to be upset: the chase, and the comment about being a Hells Angels. [71] Mr. McRae said he and Norman Cocks arrived back at Horning Road about 3:15 p.m. They discussed payback on the way to the house. [72] Mr. McRae acknowledged that they went out searching for the Phillipses so they could take them by surprise "somewhat". He acknowledged that they made a determined effort to find them. The decision to call Kody Phillips to set up a meeting place was his and Norman Cocks' idea. [73] Mr. McRae resolutely resisted any suggestion that he expected more than a fist fight, notwithstanding his agency in setting up the encounter, and what he knew of Mr. Cocks' involvement in the Hells Angels. He resolutely denied any knowledge of Robert Thomas' involvement. He said he was shocked and upset by what happened. [74] Mr. McRae was closely questioned about his participation in subsequent events at "Little Mexico". He denied that the evidence showed a callous disregard for what had happened. IX [75] At this point, something must be said about one class of evidence available in this case. It has only briefly been mentioned. Apart from the surveillance camera that Cst. Geldart was monitoring, there were extensive voice intercepts pursuant to authorizations issued in other investigations involving Mr. Cocks. These yielded hundreds of intercepts, some 200 of which were considered relevant to this proceeding. Cst. Barkman was given the task of identifying the voices on these intercepts, and in particular those of Robert Thomas, Robert Cocks, Norman Cocks, Daniel McRae, Matthew McRae, Anson Schell and Thomas Vaughan. Cst. Barkman started shortly after the incident, on June 21, 2011. She was monitoring interceptions, pursuant to an authorization that was valid from June 20, 2011 to August 18, 2011. She spent 86 hours listening to some 1000 intercepts. [76] Cst. Barkman was also asked to review a different set of intercepts on July 7, 2011, running from May 10 to July 8, 2011. She estimates that she personally reviewed over 15,000 intercepts. Her method included comparing "known" samples. She estimates that she worked 207 hours between July 7 and August 29, 2011. She was also charged with proofreading transcripts of the interceptions. Between August 30 and October 27, 2011, she testified that she spent some 267 hours doing this and became familiar with the sound, inflection and particular jargon used by Norman and Robert Cocks, Daniel and Matthew McRae, Robert Thomas and Anson Schell. She also became familiar with Alexander Adams' speech, a somewhat less formidable task, since he has a voice that is distinctive even on casual acquaintance. [77] Cst. Barkman described the distinctive voice characteristics of each of Norman Cocks, Daniel McRae, Matthew McRae and Anson Schell. Robert Cocks' voice, where Cst. Barkman identified it, was admitted by counsel. [78] Norman Cocks was identified as a party to some 141 of the intercepts, 131 of which were telephone calls, 130 of which were associated with a telephone number subscribed by All Pro Roofing Ltd., a company whose telephone it was admitted Mr. Cocks had the use of. Daniel McRae was identified on 71 calls, 42 of which were admitted to be from a telephone he subscribed to, 13 from a number subscribed by All Pro Roofing Ltd. and one from Alexander Adams' phone number. Matthew McRae was intercepted 15 times, 14 of which were on a person for which his father was the subscriber. The other call was on a telephone Daniel McRae also used. Anson Schell's one call was on a phone subscribed by a friend. [79] There were interceptions in the immediate aftermath of the events of June 12, 2011. At 6:48 p.m. there is a call from Norman Cocks to Thomas Vaughan wherein Mr. Cocks directs Mr. Vaughan to go to the shop in "Little Mexico". It is admitted that at 7:16 p.m. a white Dodge pickup truck was parked in front of the shop with a number of males nearby. The vehicle had no front licence plate, a fact Thomas Vaughan had reported to police on June 2, 2011. There is evidence that at 7:57 p.m., Mr. Cocks was dropped off at "Little Mexico" so he could let the occupants of the Vaughan vehicle into the shed. [80] In a number of cases the accused identify themselves. Amanda Cocks identified Norman Cocks' voice in some of the calls. There is a call in which Norman Cocks wishes "Matt" a happy birthday. The date of the call corresponds to the date of birth in Matthew McRae's birth certificate. There are cross-references to telephone numbers mentioned in the calls. All of these cross-references support and reinforce the evidence of Cst. Barkman as to the identity of the persons she associated with each of the calls. [81] Such evidence is admissible, pursuant to s. 6.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5, which states, "For greater certainty, a witness may give evidence as to the identity of an accused whom the witness is able to identify visually or in any other sensory manner." Voice identity evidence is simply an item of proof. In R. v. Chan, 2001 BCSC 1180, Dorgan J. observed at para. 26: [26] while the Crown must prove identity of the accused as an offender beyond a reasonable doubt, it need not prove voice identification beyond a reasonable doubt. The evidence of voice identification is simply an individual item of evidence going to the identity of the accused and, accordingly, the standard of proof is by a preponderance of evidence. [82] Dorgan J. also listed certain factors to be considered in assessing the weight of voice identification evidence: [31] My reading of the cases provided reveals that a number of factors will assist the trier of fact assess the reliability of the witness' identification of the accused's voice: a) Are there distinctive or distinguishing features of the voice: see R. v. Reid, R. v. Savoy, [2000] B.C.J. No. 695 (S.C.), R. v. Gulstad, [1994] Y.J. No. 44 (Terr. Ct.), R. v. Latchana, [1997] O.J. No. 2330 (G.D.)? b) Did the party to the communication identify him or herself? c) Did the party to the communication provide information that would allow the listener to identify him or her? d) Was there evidence of physical surveillance at the same time as the private communication to allow the speaker to be identified? e) Did the witness hear the voices under the same conditions, or was the emotional state different in each situation: R. v. Reid? f) What is the length of time during which the witness was able to hear the voice: R. v. Gulstad, R. v. Williams and R. v. Savoy? g) Was there any reason for the witness to focus on the voices? h) What was the condition of the witness when he or she heard the voices, alert or groggy: R. v. Gulstad? i) What was the length of time between the times the witness heard the voices: R. v. Gulstad? j) Were there any contradictions in the description given by the witness - did the witness testify that the accused spoke with an accent when he or she did not: R. v. Parsons, [1999] Y.J. No. 3 (Terr. Ct.), R. v. Narsing, [1996] A.J. No. 1263 (Prov. Ct.)? k) Did anything compromise the identification process - was the witness assisted in identifying the voice, or was the witness' opinion tainted by the expectation that the voice was that of the accused: R. v. Parsons, and R. v. Williams? l) Is the witness' opinion contradicted: R. v. Williams? [32] As with visual identification, voice identification suffers from the frailty that a witness may simply be mistaken. This is not a question of the honesty or integrity of the witness. However, honesty and integrity of a witness cannot be relied upon to overcome weaknesses in identification evidence. As Lysyk J. noted in R. v. Savoy, [2000] B.C.J. No. 695 (S.C.): "What requires assessment is a risk that he may be mistaken." [83] The evidence given by Cst. Barkman included an extensive consideration of such factors. I am satisfied that where reference is made in these reasons to intercepts identified with each speaker that the voice attribution is accurate. X [84] In the immediate aftermath of the events on McCurdy Road, as we have seen, Daniel and Matthew McRae and Anson Schell were among a group that assembled at "Little Mexico" in the shed on that property. There are a number of intercepts that the Crown submits are probative of culpability. [85] As a preface to a consideration of this evidence its proper use should be considered. Post-offence conduct was addressed by the Supreme Court of Canada per Rothstein J. in R. v. White, [2011] S.C.J. No. 13, at paras. 22 and 42: 22 The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law. At its heart, the question of whether such evidence is admissible is simply a matter of relevance. As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis. Thus, while the term "consciousness of guilt" may have fallen out of use, it is still permissible for the prosecution to introduce evidence of after-the-fact conduct in support of an inference that the accused had behaved as a person who is guilty of the offence alleged -- provided that, as with all circumstantial evidence, its relevance to that inference can be demonstrated. 42 [T]he established rule that circumstantial evidence must be relevant to the fact in issue. In any given case, that determination remains a fact-driven exercise. Whether or not a given instance of post-offence conduct has probative value with respect to the accused's level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused's post-offence conduct support an inference regarding his level of culpability. [86] The Crown prefaced its submission respecting the post-offence conduct made up of "Little Mexico" interceptions by suggesting an inference could be drawn from what is not heard in the conversations. The Crown submits that no one expressed concern for Dain Phillips' condition, no one expressed remorse for what had happened and there were no recriminations within the group. No one was critical of what happened. [87] The Crown submits that, to the contrary, the tenor of the discussion is self-congratulatory and light-hearted. [88] One aspect of this was the evidence of Alexander Adams that he got a ride back up to Horning Road where he picked up his vehicle and then drove to McDonalds to buy hamburgers for the group. Surveillance video showed Mr. Adams in the McDonalds at 155 North Hollywood Road, Kelowna, at 8:36 p.m. He testified that once he got the food he went straight back to "Little Mexico". He said that Daniel McRae, Matthew McRae, and Anson Schell were present. [89] At 8:07 an intercept includes the sound of a police scanner in the background. In reaction to something said on the scanner, Daniel McRae and Matthew McRae have this exchange: DM: Fuck MM: We're fucked. DM: did you lock the gate from the inside? Is it locked? UM: Yeah. DM: Do you have the keys? MM: The keys on the outside? UM: Fuck. MM: Who's got the key? [Emphasis added.] [90] Matthew McRae is also heard asking Wyatt Erfle if he can borrow his van, observing, however, that it would be "the worst thing" to put his plates on it. [91] Further in the same passage Matthew McRae says: MM: Fuck buddy, I left that twenty-two out downstairs too. (Indiscernible) an' I left that out 'cuz didn't know if you were coming back, we have shoot someone. But (Indiscernible) on the way down we had the bullets an' everything in it fuckin'. Should of just brought that, (indiscernible) pop, fuckin' pop. (Emphasis added.] [92] At 8:26 p.m. Anson Schell is heard: UM3: (Indiscernible) He hit the ground right? AS: He got hit with the bat. UM3: Oh yeah (indiscernible) AS: Yeah, that's what I said man. See? UM: Oh. AS: Oh, yeah. It was the bat. MM: (Indiscernible) AS: (Indiscernible) I told you guys he got hit over the head with a bat. Errol (ph) jumped over tryin' to hit him and then (indiscernible) over the head, I seen it. [93] The Crown submits that this is evidence of what happened. It is also indicative of the presence of a fourth person in Robert Thomas' vehicle, "Errol". [94] Further in the same passage Matthew McRae, Daniel McRae, and Anson Schell have this conversation: MM: Well, if he didn't have an axe he would have been quicker. DM: He had that thing right away. MM: I just ran back to get pipes and shit. Fuck yeah. UM: Yeah, 'cause. AS: I know I see Matt (ph) running back with the pipe. UM: I seen Matt's guy (indiscernible) with an axe running right behind him, I'm like, Holy fuck. "Matt get in get in" I didn't know I'm like, holy shit. Maybe (ph) he was right there 'eh? And then fuck (indiscernible) [Emphasis added.] [95] The Crown submits that this confirms the presence of the weapons Alexander Adams says were loaded into the vehicle at the Horning residence. No one contradicts Mr. Schell's observation. [96] A little further on Anson Schell says: AS: (Indiscernible) he was right there, he was right at your truck box by the time you like, (indiscernible) when you hammered it, he was like, (indiscernible) five feet behind your truck box (ph). And Matt was like, just put the pipes in the box. And he's like. UM: (Laughs) I just hold down Anson's arm and shit (indiscernible). AS: Oh yeah. [Emphasis added.] [97] The Crown submits that this refers to Matthew McRae's attempt to get into the truck while Kaylin or Kody Phillips was in pursuit. No one corrects the remark about the pipes. [98] There is a long interception that commences at 10:10 p.m.: AS: Yeh. It says the blood was still there and shit too on there? NC: Does it really? AS: Yeah. DM: Oh, yeah. NC: Good one or what? DM: Yeah. NC: What a goof, eh? (indiscernible) AS: Mmm. Probably (indiscernible) NC: (Indiscernible) went and jumped the curb (indiscernible) AS: Oh yeah. But they, they're saying (indiscernible) no (indiscernible) fight (indiscernible) I was like, "Night, night," NC: Yeah. AS: fuckin' 'night, 'night. It was funny shit. (background-noise) Hmph. Put the lights out. (background-noise) NC: Oh, yeah. "'Night, 'night." AS: (laughter sounds) NC: Rob's like "You wanna (indiscernible) with the Hells Angels". He's like "I didn't (indiscernible) nothing up. He goes (indiscernible) whack, right in the knees AS: (chuckles) NC: and then he's like - one more. Rob was goin', "boom boom" and that was it. Poof. AS: YEAH. NC: "Err." AS: Oh, yeah. (background - indiscernible male) NC: "You're dead, you're dead, you hit my dad." AN: Huh. NC: I'm like, "Oh, shit." (Chuckles) DM: (Chuckling). Do they think I'm you? Probably. NC: Probably, eh? NC: Fuck that. Did you see the way he was yelling? He's like, "You hit my dad." AS: Yeah. (Chuckles) NC: I was like who cares? NC: 'Night, 'night. AS: Yeah. 'Night, 'night. NC: (Indiscernible) too eh? I was going right and I was like "Fuck - there's - I want this big fuck right here". AS: Mmm hmm. NC: He's just standing there like fuckin'. Fuck I think there was something wrong with him 'cause we walked up to him, he just stood there. He didn't even move. I swung the bat. He didn't even move. Just like "Boom", "mmm" (background - chuckling sounds) 00:14:41 NC: "Boom", just like cuttin' down a tree. (background - laughter) NC: Then he's like, "Mmm," and then it's like fucking', "Clunk." AS: And then he - (background - television playing) AS: Fuck, takin' a dirt nap. [Emphasis added.] [99] The Crown submits that this is an exhibition of callousness that bespeaks an absence of surprise about what occurred. The Crown submits this is evidence that what occurred was what the accused expected to occur. [100] In the midst of this passage Daniel McRae says "I would've played that out like knowing what happened there, like differently fuckin." The Crown submits that this is a suggestion not of regret, but that Mr. McRae would have prepared differently. [101] At that point, Anson Schell says: AS: (Indiscernible) some fucking' he-man I was just like "boom". I was like, "Oh, ho, ho." I was like, "Kay. Well, what the fuck's going on now", and "Oh, shit got no weapons" and start running back with DM: (indiscernible) AS: shovels and shit. NC: (laughter sounds) [Emphasis added.] [102] The Crown submits that this is an admission that Mr. Schell dealt a blow to Dain Phillips. [103] At another point, Daniel McRae says: DM: (Indiscernible) and I was just fine. I was (indiscernible) with everybody until Nick (ph) came and fuckin' talks to me for like fuckin' [Emphasis added.] [104] The Crown submits that this contradicts Mr. McRae's in-court testimony that he felt "troubled" about the whole incident. [105] Daniel McRae said the following: UM: Danny made the play DM: Fuck, you missed it. We put a bump on his head, man [106] The Crown submits that this is an admission of direct participation in that beating. [107] There is an interception made on June 20, 2011. The voices were identified as those of Norman Cocks and Daniel McRae. The content included: DM: (sigh) fuck (indiscernible) do somethin' well fuck NC: What do you wanna do? What do you - what do you really want me to do today? Where's - where's - where's your head at? DM: Everywhere. I don't know. (Indiscernible) another thing. NC: (Indiscernible) they found some gloves (indiscernible) baseball bat (indiscernible) my blood and shit. What they do is try to find, find that guys DNA on (indiscenible) me or (indiscernible) Rob (indiscernible) smashed his head (indiscernible) too, right? (indiscernible) that matches the two right? (indiscernible) two weeks eh. It'll take awhile in the (indiscernible). You know what I mean? DM: Yeah NC: And then after that, then they're gonna pull us in and try and match (indiscernible) ones. Fuckin' test (ph) what? You know what I mean? DM: Yeah. I wanna try and go see Matt. NC: That's crazy, eh (Clears throat) DM: It's like holding up. Like. (Background - sound of television) 00:03:06 NC: I need his (indiscernible) still if I don't know (indiscernible), eh? DM: Yeah. NC: (Indiscernible) night more. DM: (sigh) fuck (Indiscernible) do somethin' well fuck. NC: What do you wanna do? What do you - what do you really want me to do today? Where's - where's - where's your head at? DM: Everywhere. I don't know (Indiscernible) another thing. NC: (Indiscernible) they found some gloves (indiscernible) baseball bat (indiscernible) my blood and shit. What they do is try to find, find that guys DNA on (indiscernible) me or (indiscernible) Rob (indiscernible) smashed his head (indiscernible) too, right? (Indiscernible) that matches the two right? (Indiscernible) two weeks eh. It'll take awhile in the (indiscernible). You know what I mean? DM: Yeah. NC: And then after that, then they're gonna pull us in and try and match (indiscernible) ones. Fuckin' test (ph) what? You know what I mean? DM: Yeah. I wanna try and go see Matt. NC: Should have left him a number to call. Did you have his number? DM: Too see that baby girl (ph). See my dad. He's heard the whole thing (indiscernible) right. Like. NC: Just tell (indiscernible) to stop fuckin' worrying (indiscernible) go see Matt first (indiscernible), right? (Indiscernible) no? DM: (Chuckles) No. 00:05:13 DM: I'm gonna talk to Larry Myers (ph) (indiscernible) go talk to my parents. NC: You know him pretty good? DM: Oh, yeah. Thought it would help. (Indiscernible) my mom - my dad said I'm up (indiscernible) charges (ph). NC: (Chuckles) DM: Me and my dad don't have to fucking have a bonding time if you're here though. 00:05:45 DM: Wanna split a (indiscernible) with me or somethin'? NC: (Indiscernible) 00:05:51 (Background - indiscernible conversation) 00:06:05 NC: They're not buyin' the (indiscernible), eh? DM: Yeah. You got a lighter or matches around? NC: No one smokes in this whole house. DM: What about Sharmon's romantic thing when she wants to light a candle? NC: Fuck just (indiscernible) anything. (Indiscernible) your brothers number? DM: Yup. NC: (Indiscernible) walk back and fucking (indiscernible). DM: (Indiscernible) NC: Yeah there's a (indiscernible) over here. You just go down this road. You follow that road down to the end until you see the pathway, and then you go over a little bridge, and there's a little (indiscernible). What do you need? (Indiscernible) DM: It's probably better to (indiscernible) a fucking. (Yawn). Fuck. NC: (Indiscernible) [108] Mr. McRae took the position that this conversation could not be with him because he was not in Kelowna on June 20, 2011, but in Grand Forks on a roofing job. The Crown was able to show that the record of the motel where the roofing contractor reserved rooms showed that the crew was out by June 17th. Moreover, a surveillance team was watching a house occupied by Sharman McQuarrie, at 4458 Walker Road in Kelowna, and members of the team positively identified Mr. McRae as in the vicinity of that house on June 20, 2011. [109] The conversation takes place at 12:28:39 p.m. Mr. Cocks tells Mr. McRae there are no matches or lighters in the house. At 12:48 Mr. McRae walked to and was identified at a shopping plaza. The description of his movements as observed by the police officers corresponds to the directions given by Norman Cocks in this conversation. It is clear that Mr. McRae was in Kelowna on that day and participated in this telephone conversation. Substantively, the Crown submits that the call clearly comes after the Cocks residence was searched on June 15, 2011 and that they seized a number of items. The Crown submits that the implication of the interception is that Mr. McRae appears to accept that his DNA may implicate him in the crime. XI [110] The evidence of what happened to Dain Phillips starts with the attendance of the ambulance at 6:54 p.m. Mr. Phillips was unconscious at the scene and twitching. He was taken to Kelowna General Hospital and arrived at 7:26 p.m. He was attended by the doctors, Dr. Balfour and Dr. McCauley. He was put in life support and pronounced dead by Dr. McCauley at 8:03 a.m. on Monday, June 13, 2011. His body was transported to the morgue and by admission kept in an undisturbed state until an autopsy was performed by Dr. Stephen at 11:00 a.m. on June 15, 2011. [111] Dr. Stephen noted a number of injuries on Dain Phillips' body: (a) three parallel abrasions on the inside of the left bicep; (b) a bruise on the left thigh caused by a moderate to severe blow from a cylindrical object; (c) a similar bruise on the back of the left calf; (d) an injury to the left eyelid; (e) a large laceration on the left forehead consistent with the use of a bat; (f) some "irregular impressions" on the left forehead; (g) deep bruising revealed when Dr. Stephen made an incision in Mr. Phillips' left calf. [112] The search of the premises at Horning Road turned up a ball-peen hammer with Dain Phillips' DNA on it. XII [113] The Crown's position with respect to each accused is that each directly participated in the assault on Dain Phillips. As a preface to addressing those specific allegations, certain facts are clearly established on the evidence: 1. Although the basis for it appears to be petty, there was a strong animus between the Phillips brothers and the McRae brothers going back for several years. The feeling was especially strong between Daniel McRae and Kody Phillips. 2. The immediately precipitating cause of the difficulty between the McRaes and the Phillipses was a disparaging posting by Kody Phillips on Matthew McRae's Facebook page to which Daniel McRae took exception. The back and forth between them was acrimonious. 3. The end of the Facebook correspondence was not the end of the matter. On June 11, 2011 in the early morning hours after an evening of drinking, Daniel McRae saw Kody Phillips in his vehicle and followed him home, with his companions Thomas Vaughan, and Alexander Adams, who was driving. After accosting Kody Phillips in the driveway Kaylin Phillips was called out and he forced Mr. McRae to leave. Mr. McRae phoned to apologize but the sincerity of the apology may be doubted inasmuch as he was complaining about his altercation with Kaylin the next day in the presence of Norman Cocks. 4. Norman Cocks had been a friend of Daniel McRae for some years. Their familiarity with each other is illustrated in some of the intercepts in evidence. Mr. McRae knew Mr. Cocks was a member of the Hells Angels. The nature of the relationship can be inferred from the fact that Mr. Cocks was several years older than Mr. McRae and called him diminutive nicknames like "Knob" or "Little Knob". 5. Mr. McRae had advised Norman Cocks of his difficulties with the Phillips brothers and had also told him that Kody purported to have a "boss" who was a Hells Angel. 6. During the day on June 12, 2011 Mr. Cocks and Mr. McRae were planning on dirt biking together and went to Mr. Cocks' shop at "Little Mexico" to pick up their gear. Mr. McRae saw Kaylin Phillips at a nearby recycling depot with his girlfriend and indicated to Mr. Cocks that he was the "idiot" from the other night. 7. At this point, Mr. Cocks took matters in hand and, addressing Kaylin as Kody, assaulted him. When Kaylin protested that he was not Kody, Mr. Cocks issued a warning to Kaylin that the Hells Angels were looking for Kody. The encounter strongly suggested that there was unfinished business with Kody, and a direct interest in dealing with him on the part of Norman Cocks and the Hells Angels. 8. This prompted a meeting of the Phillips family to decide what to do, and their eventual decision to go to the McRaes, where by chance they encountered Daniel McRae and Norman Cocks. The car chase ensued. 9. Following this, Norman Cocks was even further engaged and he enlisted Robert Thomas and participated in a search for the Phillipses with a number of the friends Daniel McRae had summoned. 10. When this proved fruitless, Daniel McRae got on the telephone and arranged a meeting with Kaylin Phillips, at the top of McCurdy Road. 11. What happened at McCurdy Road happened very quickly. It is clear that immediately upon their arrival, Mr. Thomas and Mr. Cocks beset Dain Phillips with weapons. The injuries Dr. Stephen described are consistent with the blows with bats and hammers described by the witnesses. It is clear that Dain Phillips offered no resistance. [114] The evidence of Kody Phillips, which implicates some of the McRae party in the physical assault on Dain Phillips, is seriously unreliable. He originally implicated Thomas Vaughan, who never left his vehicle. Kaylin, on the other hand, does not implicate anyone else with any certainty. The Crown's attempts to suggest that the relatively minor injuries suffered by Dain Phillips in addition to the major blow to the head and to the thigh and calf, may have been attributable to the direct involvement of one or more of the accused are unconvincing. So too are the Crown's attempts to suggest that the absence of injury may not be telling in this regard. [115] While the statements by Anson Schell and Daniel McRae at "Little Mexico" appear to implicate them directly in the beating, they remain open to other interpretations. Mr. McRae's statement: "we put a bump on his head man" is not, in my view, a conclusive statement of direct personal involvement. The statements are, however, strongly indicative of the speakers' identification with, and support of, what occurred. [116] Considering all of the evidence, I am unable to conclude that any one of the four accused directly participated in the attack on Dain Phillips. That is to say that in each case the Crown's case falls short of proving that they were principals, or persons who actually committed the offence, beyond a reasonable doubt. XIII [117] Whether the accused were parties to the offence on one or more of the other ways set out in s. 21 is what is left to decide. That is, whether in each case, they aided or abetted the offence of manslaughter, or whether in each case their participation fits within s. 21(2): (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [118] The offence of manslaughter is a form of culpable homicide that occurs "when a person causes the death of a human being by means of an unlawful act" (see s. 222(5) (a) of the Criminal Code). It is not necessary to prove an intention to cause death or injury. A general intention to assault the deceased is sufficient. In Smithers v. The Queen (1977), 34 C.C.C. (2d) 427 (SCC) Dickson J. observed: I should like to adopt two short passages from a Case Note on R. v. Larkin [(1942), 29 Cr. App. R. 18.] by G.A. Martin, as he then was, which appeared in (1943), 21 Can. Bar. Rev. 503 at pp. 504-5: There are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide, e.g., the most trivial assault, if it should, through some unforeseen weakness in the deceased, cause death, will render the actor guilty of culpable homicide. ... In the case of so-called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least. The act of the accused in R. v. Larkin fell within the class of intentional crimes because he was engaged in committing an assault upon Nielsen, and the fact that he caused a different type of harm to that which he intended did not free him from criminal responsibility. The Crown was under no burden of proving intention to cause death or injury. The only intention necessary was that of delivering the kick to Cobby. Nor was foreseeability in issue. It is no defence to a manslaughter charge that the fatality was not anticipated or that death ordinarily would not result from the unlawful act. [119] In the context of manslaughter, aiding and abetting were explained in R. v. Cran, 2004 BCSC 1635, per Humphries J. at paras. 130 - 133: [130] A death amounts to manslaughter where the accused commits an unlawful act which is inherently dangerous, and harm to another which is neither trivial nor transitory is its foreseeable consequence. Manslaughter does not require a subjective appreciation by the accused of the consequences of the unlawful act. The death of the victim, although not intended, is the result of the unlawful act. (R. v. Davy 86 C.C.C.(3d) 385 (S.C.C.)). [131] A person aids in an offence under section 21(1)(b) when he knows that someone intends to commit an offence and is present with the intention of helping the other person commit the offence. A person abets an offence under s. 21(1)(c) when he actively and intentionally encourages somebody else to commit an offence. [132] A person may be found guilty of aiding or abetting the offence of manslaughter where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the unlawful act which was being undertaken (R. v. Davy, supra). [133] It is not necessary to find that either accused actually struck blows, if it can be established beyond a reasonable doubt that he helped or encouraged a principal assailant. In the context of a beating administered by members of a group, standing by and preventing the victim from escaping may be sufficient, depending on the circumstances, to constitute aiding or abetting. [120] In the present case a number of questions arise that must be answered with respect to the involvement of each of the accused in turn. [121] The first is whether in each case the accused knew that "someone intended to commit an offence." It is the position of each of the accused that all they thought was going to happen was that a consensual fist fight would take place. That, in turn, requires a consideration of the limitation on such activity articulated in R. v. Jobidon, [1991] 2 S.C.R. 714 at para. 124: 124 The law's willingness to vitiate consent on policy grounds is significantly limited. Common law cases restrict the extent to which consent may be nullified; as do the relevant policy considerations. The unique situation under examination in this case, a weaponless fist fight between two adults, provides another important boundary. 125 The limitation demanded by s. 265 as it applies to the circumstances of this appeal is one which vitiates consent between adults intentionally to apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. [122] That is to say that consent is not a defence to the infliction of serious hurt or non-trivial bodily harm. The position of the accused is that they did not anticipate an offence, that is that they expected a fight with no more than trivial consequences. [123] In this case all of the accused were present at the scene of the crime. There is an old distinction between aiding and abetting endorsed by the Court of Appeal in R. v. Vinette, [1968] B.C.J. No. 81 (BCCA) at para. 11: 11 In R. v. Roy (1900), 3 C.C.C. 472, 9 Que. Q.B. 312, Wurtele, J., said at pp. 474-5: "Section 61 of the Criminal Code makes any person who does an act for the purpose of aiding any other person to commit an offence, or who abets any other person in commission of an offence, a party to the offence committed by such other person. To abet is to be personally or constructively present at the commission of an offence, and to assist in the criminal act; but to aid is to help, or in any way to promote, facilitate or bring about the accomplishment of any criminal purpose by another, and this may be done without being present when the offence is perpetrated. Under the old rule of law the abettor, or the person who was present inciting or helping, was a principal in the second degree, while the person who, being absent, counselled, helped or facilitated in any way the commission of an offence which was afterwards perpetrated was an accessory before the fact." [124] As a baseline proposition, mere presence at the scene of a crime does not amount to aiding or abetting. In R. v. Dunlop, [1979] 2 S.C.R. 881 [Dunlop], the Supreme Court of Canada observed, at para. 31: Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. ... in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary, and therefore if A. happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoureth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behaviour of his, though highly criminal, will not of itself render him either principal or accessory. The leading case of R. v. Coney [(1992), 8 Q.B. 534] decided that non-accidental presence at the scene of the crime was not conclusive of aiding and abetting. The accused were present at a prize fight, then illegal, though taking no part in the management of the fight. It did not appear that the accused said or did anything. The chairman of the quarter sessions directed the jury that, prize fights being illegal, all persons who went to a fight to see the combatants strike each other, and being present when they did so, were guilty of assault unless they were casually passing by. If they stayed at the place, they encouraged it by their presence although they did not say or do anything. Eight of the eleven judges hearing the case reserved were of opinion that the direction was not correct. Two passages from the judgment of Cave J. at p. 539 bear repeating: Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon. and, ... Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury. Hawkins J. in a well-known passage had this to say, p. 557: In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does [not]. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power so to do, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting. In this Court the question of aiding and abetting was canvassed in Preston v. R. [1949] S.C.R. 156]. The appellant and another were accused of having set fire to a school. Mr. Justice Estey delivered the majority judgment in this Court, in the course of which he stated (p. 159) that in order to find the appellant guilty of aiding, abetting, counselling or procuring, it was only necessary to show that he understood what was taking place and by some act on his part encouraged or assisted in the attainment thereof. Later he said (p. 160) that mere presence does not constitute aiding and abetting, but presence under certain circumstances may itself be evidence thereof. He proceeded to review the evidence and concluded, p. 161: If appellant's explanation was not believed by the jury there was evidence in addition to his mere presence upon which they might well conclude that he was guilty of aiding, abetting, counselling or procuring. (Emphasis in original.) [125] It bears repeating that it is only necessary to show that the accused understood what was taking place and by some act on his part "encouraged or assisted in the attainment" of the objective. [126] The second part of s. 21 addresses the situation of common unlawful purpose as distinct from aiding and abetting. In a presentation at a National Criminal Law Program entitled "In for a Penny, In for a Pound? The Common Purpose Doctrine and Party Liability under Section 21(2)", G. Fitch (now Fitch J.) wrote: Section 21(2) has no application when the parties who are acting in concert do precisely what they set out to do. Rather, it applies where the offence actually committed is not the one the accused and the principal offender originally agreed to commit. In essence Parliament has chosen "to impose liability on persons who engage in criminal conduct with others for additional criminal acts that could be foreseen as likely to be committed in furtherance of the underlying offence." [R. v. Hibbert, [1995] 2 S.C.R. 973 at paragraph 42]. The section makes everyone a party to an offence who, having formed an intention in common with one or more others to carry out an unlawful purpose, knew or ought to have known that the probable consequence of carrying out that unlawful purpose was the commission of a different, consequential offence by a confederate. The provision extends party liability to one who neither committed the offence charged nor aided or abetted the principal offender in its commission. [R. v. Jackson and Davy (1991), 68 C.C.C. (3d) 385 at page 421, affirmed [1993] 4 S.C.R. 573]. It is sufficient that the accused knew or ought to have known that the commission of the collateral offence was a probable consequence of carrying out the common unlawful purpose with the actual perpetrator. [R. v. Simpson, [1988] 1 S.C.R. 3 at paragraph 14]. The provision operates so as to give rise to criminal liability for distinct, incidental offences which occur in the course of commission of the joint enterprise offence. In effect, section 21(2) makes the accused liable as a party for an offence in which his only actual involvement is constructive. [127] In the present case the Crown has made submissions on the basis that s. 21(2) may apply. This would only obtain if it could be said that the common unlawful purpose of committing an assault could be said to be distinct from the offence of manslaughter. [128] A case that may illustrate the distinction is R. v. Young, 2009 ONCA 549, where the difference was between the elements of first and second degree murder. The court, per Sharpe, J., observed: [T]here is a fundamental difference between liability as an aider or abettor under s. 21(1), which is premised upon actual participation in the crime charged, and liability under s. 21(2), which is premised upon the knowledge (in the case of murder) that the crime charged would probably be committed by another person with whom the accused had an intention in common to carry out a different unlawful purpose. Where the common intention is to commit the very crime charged, s. 21(2) has no application. [129] By contrast in relation to the charge of manslaughter, the elements are the same as between manslaughter and assault. In R. v. K.K.P., 213 C.C.C. (3d) 530, (Alta C.A.), the court observed: 17 A person may be convicted of manslaughter if the unlawful act in which he or she participated is one "he or she knows is likely to cause some harm short of death": Kirkness at para. 20. If someone participates in an unlawful act that is "inherently dangerous and harm to another which is neither trivial nor transitory is its foreseeable consequence, the resultant death amounts to manslaughter": R. v. Jackson, [1993] 4 S.C.R. 573 at para. 20. 18 To sustain a conviction for being a party to manslaughter, it is not necessary for the Crown to show that the appellant must have been able to foresee the likelihood that the victim would be stabbed to death. The test is whether, viewed objectively, leaving a man in a remote rural area late on a January night after beating him up is inherently dangerous, and the foreseeable harm that is likely to result is neither trivial nor transitory. This is the basis on which the trial judge reached his verdict. [130] I conclude on the basis of these authorities that in cases of this kind, where the offence that is aided or abetted arises from an intention to commit an assault that ends in a death, there is no distinction between the intended unlawful act and its consequence in manslaughter, such that manslaughter may be said to be a distinct or different offence. For this reason, s. 21(2) has no application and the case falls to be decided only under s. 21(1)(b) or (c). XIV [131] The Crown addressed the nature of each party's participation in turn. In each case the Crown's position begins with an argument that the accused was a principal, that is, a direct participant in the assault. Having ruled that argument untenable on the evidence, I will not allude to it as I address the position of the Crown and defence for each accused. [132] The Crown submits that Mr. McRae, in telling Mr. Cocks of Kody Phillips' remarks about his "boss" being a Hells Angel, and in pointing out Kaylin Phillips at the recycling depot, "manipulated" Norman Cocks into "taking the lead" in a confrontation with the Phillipses, that he had his own reasons for provoking. The Crown submits that Mr. McRae knew Norman Cocks, and had known him to be a Hells Angel long enough to know that some form of retaliation would have to be taken against Kody, which dovetailed with his own animus towards Kody. [133] The Crown submits that Mr. McRae "lied" to Norman Cocks by identifying Kaylin as Kody in order to precipitate the criminal assault on Kaylin that occurred. [134] The Crown submits further that after the backward chase with Dain Phillips, Mr. McRae and others formed a common intention to find one or more of the Phillipses and assault them. When this did not work out, the Crown submits that Mr. McRae aided in the continuing purpose of assaulting the Phillipses by setting up the meeting at the top of McCurdy. The Crown submits that he aided the purpose by recruiting others, including the accused Anson Schell and his brother Matthew to participate. The Crown submits that Mr. McRae was actually attempting to further the unlawful purpose of assaulting the Phillipses by directing the Phillipses to go back up to the top of McCurdy when he first arrived on the scene. [135] The Crown lastly submits that Mr. McRae did not make any attempt to stop Mr. Cocks or Mr. Thomas or to moderate the situation, and submits that his presence, and his omission to intervene in any way, amounts to tacit approval of what occurred. [136] The Crown submits that Mr. McRae must have known that Mr. Cocks and Mr. Thomas had armed themselves with weapons and intended to assault the Phillipses and inflict serious bodily injury. The Crown submits that Mr. McRae formed a common intention to carry out this unlawful purpose and knew or ought to have known that a different consequential offence was a probable consequence. [137] The Crown submits that Mr. McRae had seen Mr. Cocks assault Kaylin Phillips some hours before, and knew that Mr. Cocks regarded his business with Kody to be unfinished. [138] The Crown submits, moreover, that there is evidence that Mr. McRae armed himself with a pole like object as part of the common intention. XV [139] Counsel for Daniel McRae submitted that the evidence falls short of establishing that Daniel McRae participated directly in the assault on Dain Phillips but rather suggests that he stopped short of doing so. That being the case the analysis turns to the question of aiding and abetting. [140] Mr. McRae's submission was prefaced by reference to R. v. W.D., [1991] 1 S.C.R. 742 (SCC) in light of his election to testify. [141] Mr. McRae acknowledged the animosity between him and Kody Phillips and his attendance at Kody Phillips' house in the early morning hours of June 11, 2011. He submits that the subsequent encounter with Kaylin at the recycling depot is evidence only of an issue between Kody and the Hells Angels, and not of any intercession or cross-over by Norman Cocks in relation to the Facebook issue between Mr. McRae and Kody. [142] Mr. McRae submits that following that encounter, the evidence of Ms. Delgatty makes it clear that the three Phillips were upset and angry when they left the residence for the McRaes. Mr. McRae submits that Dain Phillips' behaviour in the car chase undermines any suggestion that the Phillipses wanted a cool and calm discussion about the problem. He submits that at this point Mr. McRae had reason to believe that the Phillipses were anxious to fight. Mr. McRae submits that after the car chase Norman Cocks had his own issue with Dain Phillips, quite distinct from Daniel McRae's issues with the Phillips brothers. [143] Mr. McRae submits that the reason for Mr. Cocks' telephone call to Mr. Thomas just after the chase was not shared with him. He submits that as a matter of logical inference it is unlikely that Rob Thomas and Norman Cocks would discuss any plan to assault Dain Phillips with him or his friends. He asks the court to consider the evidence of Det/Sgt. Isnor, an expert in the Hells Angels and their practices, who said the Hells Angels are "secretive" organization. [144] Mr. McRae submits that the preponderance of the evidence contradicts Mr. Adams' assertion that weapons were loaded in the truck in which Mr. McRae attended the scene. [145] Mr. McRae submits that all of the witnesses have the driver of the blue truck coming out with a bat and bringing down Dain Phillips with blows to the legs and the head. He submits that the evidence of Kody and Kaylin Phillips to the effect that the attackers were yelling things about the Hells Angels suggests a different, separate motive from the petty dispute between Daniel McRae and Kody Phillips. [146] Mr. McRae says that he was unarmed as he approached Dain Phillips' position and that he stopped short or was "standing back", as described by Kody Phillips and Doug Chase in their statements to police. He further submits that the evidence of Dr. Stephen as to the condition of Dain Phillips' body at the autopsy does not suggest multiple kicks or stomps as suggested by Kody Phillips. [147] Mr. McRae submits that Alexander Adams' observation that the mood in the truck as they drove away was stunned or shocked is truthful, and that the intercept (see paras. 103 and 105 herein) that appear to be callous remarks made by him may not have been reliably identified, and that Mr. McRae's own identification of that comment may not be accurate. [148] Mr. McRae submits that the comment on June 20 (see para. 107 herein) may not be him even if it is established that he was, in fact, in Kelowna at the time. He submits that, in any event, making callous remarks after the event does not offer proof of what was intended before the accident occurred. [149] Mr. McRae submits, on the other hand, that the statement reproduced at para. 100 herein, is a statement of regret and an indication that he did not know what Mr. Cocks and Mr. Thomas had planned, and that if he had known he would not have arranged the meeting. He submits that this indicates, in the Crown's own case, that Mr. McRae lacked the mens rea to aid and abet an unlawful violent attack on Dain Phillips. [150] Mr. McRae's evidence was that he gathered a group together to deal with the Phillipses and that he concluded they wanted to fight from their attendance at his house and the truck chase by Dain Phillips. [151] He said repeatedly that he expected a fist fight in which Norman Cocks would attend to punch out the big guy who had chased him, Dain Phillips. [152] Mr. McRae said he was unaware of who Norman was bringing with him or that he had any plan other than to fist fight. [153] Mr. McRae submits that the group of his friends plus Mr. Cocks who went out looking for the Phillipses were the only people he expected to be along once he had arranged a meeting. He suggests that this is corroborated by the evidence of Cst. Geldart who saw Daniel McRae and five others get into Vaughan's vehicle and Norman Cocks, standing alone, watching them leave. [154] Mr. McRae said he did not load any pipes into Mr. Vaughan's truck and suggests this is corroborated by Cst. Geldart who did not observe that either. Mr. McRae submits that the belief of the Phillipses that they were going to a fist fight effectively corroborates his evidence that that is what he and his friends were expecting. He suggests that the fact that neither Kody nor Kaylin were attacked corroborates their limited intentions. He says that if the plan was to beat up Kody and Kaylin they would have been attacked before they could grab defensive weapons. He submits that the focussed attack on Dain Phillips suggests a Hells Angels motivation separate from Daniel McRae's issues with the Phillips brothers. [155] Mr. McRae submits that agreeing to engage in a fist fight is not "a dangerous unlawful act" such as to found criminal liability in this case. He relies on R. v. Maybin, [2012] S.C.J. No. 24 (SCC) [Maybin] where the question was causation as between two brothers who had rendered another man in a bar unconscious, and a bouncer who had delivered several more blows, from which death ensued. In that case, the Court, per Karakatsanis J., suggested that the question of causation, relative to the brothers, was, were the dangerous unlawful acts of the accused a significant contributory cause to the victim's death? [156] Mr. McRae submits that setting up an intended fist fight is not such a "dangerous unlawful act." XVI [157] The Crown submits that Robert Cocks' participation was either as a person who was assisting in the assault by attempting to interfere with Kody Phillips' ability to defend his father or, at a minimum, as a lookout", able to advise Cocks and Thomas if the police were coming. The Crown refers to Dunlop and the passage at para. 124 herein. [158] Whether Mr. Cocks was an active participant depends largely on whether Kody Phillips' evidence that Mr. Cocks and Anson Schell ran over to the passenger side of the truck is reliable. Mr. Phillips was not reliable in other aspects of his evidence. For example, he maintained for quite some time that Thomas Vaughan took an active role in the beating, which was simply not true. Mr. Cocks got out of the truck at the scene. He did not stay back at the vehicles like Mr. Erfle, Mr. Adams, and Mr. Vaughan. [159] The Crown submits that the intercepts show a very strong relationship between Mr. Cocks and his son, Norman, and that Mr. Cocks was supportive of Norman's activities as a Hells Angel. The Crown submits that Mr. Cocks knew that Norman intended serious bodily harm to Dain Phillips and that he and Mr. Thomas had armed themselves for that purpose. The Crown submits that Mr. Cocks' physical presence at the scene was to provide any backing Norman Cocks required and that his presence abetted Norman Cocks by bolstering his support and confidence. [160] The Crown further submits that Robert Cocks was at the Horning Road house and must have been aware of the preparation they were making. His statement to police makes it clear that he was aware of why they were acting, and his tone and manner of speaking of what he had been told suggested he had a sense of grievance over the car chase. [161] The Crown submits that Mr. Cocks' post-offence conduct is consistent with a common purpose. After arriving back at 1310 Horning Road, Mr. Cocks immediately fled the house and drove away with Norman and Mr. Thomas. Later he was involved in a highly contrived telephone conversation designed to give anyone listening the impression that they had not been together, and that Norman Cocks had not been around all weekend. The Crown submits this is evidence that Mr. Cocks was continuing to work in concert with Norman Cocks and Mr. Thomas. XVII [162] Mr. Cocks submits that there is no evidence against him either of direct participation or of a common purpose. He submits that the evidence of direct involvement given by Kody Phillips and Alexander Adams was discredited in or withdrawn in cross-examination. [163] Mr. Cocks, moreover, submits that there is no evidence of common intention to carry out an unlawful purpose. [164] Mr. Cocks submits that he got out of the vehicle but when confronted with Kaylin swinging an axe was telling people to get back in the truck and never got close to what occurred with Dain Phillips. [165] Mr. Cocks' counsel went carefully through the evidence of the witnesses to the scene suggesting that there was nothing reliable pointing to any active role on Mr. Cocks' part. [166] Mr. Cocks submitted that there was no evidence of what he knew before the two vehicles went up to McCurdy Road. He submits that Cst. Geldart did not see Mr. Cocks do anything in preparation. He submitted that Michelle Wells did not mention Mr. Cocks being in the driveway before the trucks left. He submits there is no evidence of any participation before, and there is no evidence suggesting Mr. Cocks was a participant in the conversations afterward. [167] Mr. Cocks noted that Daniel McRae said he did not know Norman Cocks or Rob Thomas had weapons and asked rhetorically how he was to know? He submitted that the case against him is entirely circumstantial and that guilt is not the only reasonable inference to be drawn. XVIII [168] The Crown submits that Matthew McRae was at the scene and that Kody Phillips gave evidence of his direct participation. For reasons I have given, however, I do not think it was established beyond a reasonable doubt that Matthew McRae acted as a principal in the attack on Dain Phillips. [169] The Crown's position on aiding and abetting is that Daniel McRae must have fully informed Matthew McRae as to what had occurred with the Phillipses, and that Matthew McRae joined the group that went to the top of McCurdy Road to lend support to the objective of beating the Phillipses. The Crown submits that Mr. McRae in walking toward the scene of the beating along with his brother was aiding in the attack. There is evidence in the intercepts that he obtained a pipe and was prepared to use it. The Crown submits that even if the court finds that Matthew McRae picked up a pipe only after Kody and Kaylin began swinging the shovel and the axe, that was still aiding in the attack. [170] The Crown further submits that Matthew McRae must have known that Norman Cocks and Robert Thomas had armed themselves and intended to assault the Phillipses and inflict serious injury on them. The Crown submits that Matthew McRae formed a common intention with his brother and others to carry out an unlawful purpose and knew or ought to have known that the probable consequence of carrying out that purpose could be the commission of a consequential offence. Taking a pole-like object to the scene is evidence of a common purpose. [171] The Crown also submits that Matthew McRae made a highly inculpating statement at "Little Mexico" when he suggested that he should have brought the gun along (see para. 91 herein). [172] Counsel for Matthew McRae adopted the submissions of counsel for Daniel McRae and Robert Cocks. [173] Counsel submitted that Matthew McRae's version of what happened is before the court in the conversations he had with the cell plant. He submitted that the only person at the scene with whom Matthew McRae's evidence is in conflict is Kody Phillips and that there are numerous problems with the reliability of that evidence, which he reviewed in detail. This was all to the effect that the court could not conclude that Kody's allegations that Matthew McRae directly participated in the beating of Dain Phillips. As I have said, I have accepted that in Matthew McRae's case, as with the other accused, the case for direct participation has not been made out beyond a reasonable doubt. [174] Matthew McRae submits that the evidence is that he was called, from Posthill when he was shooting with Mr. Erfle, to a fist fight between the McRaes and the Phillipses and that the others were to be bystanders. [175] Matthew McRae submits that the evidence is that all he expected was a consensual fist fight at McCurdy Road, and that the Hells Angels had a separate agenda against Kody for his remarks about his "boss" being a Hells Angel and for the reverse car chase with Dain Phillips. He submits that he did not have the relationship to Norman Cocks that his brother did. XIX [176] The Crown submits that Anson Schell admitted direct participation in the beating of Dain Phillips in a remark made at "Little Mexico", "(indiscernible) some fuckin he-man, I was just like "boom", I was like oh, ho, ho. I was like 'Kay'". There is no question that Anson Schell was one of the persons who got out of the vehicle at the scene. Kody Phillips directly implicates him. For reasons already expressed however I am unable to find that Anson Schell directly participated in the beating of Dain Phillips. I consider the statement too ambiguous to bear the weight the Crown invites. I do accept that it may be read as statement of identification or affiliation with what occurred, however. [177] The Crown submits that it is reasonable to infer that Daniel McRae had fully informed Anson Schell about the plan to attack the Phillipses. [178] The Crown submits that by admission Anson Schell loaned Daniel McRae his cell phone in order to contact Kody Phillips on the day of the attack. The Crown submits that Mr. Schell must have known the purpose of the call and his assistance would constitute aiding. The Crown submits that, if Kody Phillips' evidence is accepted, Anson Schell came to the passenger side of his father's truck to impede or hinder Kody Phillips from coming to the aid of his father, which would be an act of abetting according to Dunlop (see para. 124 herein). [179] The Crown further submits that Anson Schell must have known that Norman Cocks and Robert Thomas had armed themselves with weapons and intended to assault the Phillipses and inflict serious injury upon them. [180] The Crown submits that there is evidence that poles were brought to the scene which would evince a common intention to attack the Phillipses. The Crown submits that Anson Schell formed an intention with Norman Cocks, Robert Thomas and others to carry out the unlawful purpose of beating the Phillipses and knew or ought to have known that the probable consequence of carrying out that purpose could be the commission of a different consequential offence. XX [181] Mr. Schell adopted the submissions of others where they were applicable to his case. [182] Mr. Schell submits that that he was not a part of any of the events leading up to the confrontation, including the confrontation at the house on Ziprick, or at the recycling depot. The car chase had been discussed at Horning Road according to Alexander Adams. [183] Mr. Schell submitted that there were different motivations at play. Robert Thomas and Norman Cocks had their quarrel with Dain Phillips. The McRae brothers had their quarrel with the Phillips brothers, which was expected to be dealt with in a consensual fist fight, and Anson Schell and Robert Cocks were, in different ways, bystanders. Mr. Schell submits that the "Little Mexico" intercept at 22:28:48 makes it clear that his expectation had been that he would be a bystander to a McRae and Phillips fight: AS: It was tough, that's funny. Yeah, I thought it was gonna be like pull up, what the hell, (indiscernible) out, fuckin' Matt and em' start beakin' (indiscernible) it might - you know, go at it and shit whatever fucking and then 00:04:22 NC: (Indiscernible) you, hey? AS: one of their guys might jump in, right? One of their guys jump in - boom - boom. But then it was just like, "night, night see you later". DM: All right. AS: That was good. [184] Mr. Schell submits that others were there with the same expectation. Doug Chase said he was there to stop the fight and Tyler Patola said he was there to stand his ground. [185] Mr. Schell submits that there is no suggestion that Mr. Thomas was a part of any of the outdoor discussions at Horning Road nor did he know where he came from or that he was carrying a bat. [186] Mr. Schell says there is no evidence he knew Mr. Thomas and Mr. Cocks were Hells Angels, or that he had even been in their house or at their house before. He submits there is no evidence that he knew anything about the Hells Angels culture. Mr. Schell submits that there is no evidence that he knew what Robert Thomas and Norman Cocks intended to do. He was not an aider or an abettor or a part of any common purpose. XXI Summary and Disposition [187] In this case, the Crown assembled a great deal of detail from a large number of witnesses and sources of information, only some of which I have touched upon in outlining the facts and arguments submitted. At its heart is a seemingly trivial and childish feud between the McRae brothers and the Phillips brothers, particularly Daniel McRae and Kody Phillips. In each family, however, the brothers take an interest in each other and it is highly improbable that, as to any of the salient facts, either brother in either family was not in material possession of the same relevant information. Daniel McRae did not hesitate to take Kody Phillips to task for postings on Matthew McRae's Facebook page, and Matthew did not hesitate to drop what he was doing when Daniel called him to come on June 12, 2011, telling Mr. Erfle that Daniel was in trouble. [188] There is no question that in May and early June of 2011 Daniel McRae harboured a resentment against Kody Phillips that led him to go out of his way on the night of June 11, 2011 to address the issue. He and Thomas Vaughan accosted Kody Phillips before Kaylin Phillips forced them rather ignominiously off the property. [189] Mr. McRae's telephoned apology later that night can only be seen as a self-serving attempt to avoid Kaylin or Kody Phillips calling the authorities. His remorse did not survive the next day when he was telling others about the event. When he came across Kaylin Phillips in the middle of the day he identified him to Norman Cocks as "that idiot" from his recent encounter. [190] Mr. McRae's relationship with Mr. Cocks can be discerned from the intercepts in evidence. It was a close friendship of mutual interests. Mr. Cocks was senior to Mr. McRae and was the more dominant of the two as the diminutive nicknames he applied to him, "Knob" and "Little Knob" indicate. Mr. Cocks' affiliation with the Hells Angels was well known. Mr. McRae clearly discussed his troubles with Kody Phillips with Mr. Cocks. It is clear that he had advised Mr. Cocks of Kody's habit of suggesting he was associated, through his "boss," with the Hells Angels. [191] In this context the evidence of Det/Sgt. Isnor, an expert on the Hells Angels, is of interest. He testified that the Hells Angels would feel obliged to deal with anyone doing what Kody Phillips was doing. Daniel McRae must have known the view Mr. Cocks would take of such behaviour. [192] If there was any doubt at all about that, it would have been dispelled by the encounter with Kaylin at the recycling depot. [193] I am not sure it is possible to construe what happened as precisely as the Crown urges, that is, that Daniel McRae lied to Norman Cocks and manipulated him into thinking that Kody Phillips was Kaylin. In my view, it is not important to decide whether this is what happened or whether Norman Cocks simply leapt to an erroneous conclusion. It is not necessary to infer any specific conversation between Mr. McRae and Mr. Cocks, except to say that Mr. McRae's evidence that nothing at all was said is the least probable of the possibilities. The known facts are straightforward: Mr. McRae's remark about Kaylin Phillips precipitated an immediate violent physical assault - that is, a criminal act - on Kaylin Phillips. Moreover, when Mr. Cocks appreciated the distinction between Kody Phillips and Kaylin Phillips, it prompted a clear threat, in Mr. McRae's presence, of further criminal behaviour by the Hells Angels directed at Kody. [194] What he had just witnessed did not give Mr. McRae any pause and he continued with his plans to go dirt biking with Norman Cocks. The threat was obviously taken seriously by Kaylin Phillips and his family, who immediately convened to discuss what to do about it. [195] The encounter at the McRaes' home was accidental, in the sense that the only reason it came about was that Daniel McRae noticed the Phillips vehicle heading in that direction. It is difficult to square the allegedly peaceful intentions of the Phillipses with what happened next, with Dain Phillips engaging in an alarming car chase. It is manifest that from that point on Mr. Cocks and Mr. McRae were on a mission to deal with the Phillipses. The first thing Mr. Cocks did was call Mr. Thomas. The next thing was that Mr. McRae's supporters, including Matthew McRae and Anson Schell, began to assemble at the home Mr. Cocks and Mr. Thomas shared with Robert Cocks. Ms. Wells heard Daniel McRae talking about the chase. In this respect, it is unreasonable to suggest that there were two agendas in play, the Hells Angels agenda, and the petty highschool agenda of the McRae and Phillips feud. Both Mr. Cocks and Mr. McRae had been through the car chase experience and acted in concert to address it, and the other matters that involved the Phillipses. [196] This included the search that involved Mr. Cocks and Mr. Vaughan, Mr. Adams, Mr. Erfle, Daniel McRae, Matthew McRae, and Anson Schell. When that failed, Daniel McRae borrowed Anson Schell's phone to set up a meeting on McCurdy Road. [197] There is no suggestion that Mr. Cocks was not going to attend that event. The accused variously submit, however, that they did not know that Mr. Thomas was coming, or that anyone other than Mr. Cocks would attend from the Horning Road household. [198] There is no evidence that conclusively establishes that Mr. Thomas and Robert Cocks were engaged with the accused in planning to go to McCurdy Road. There is, however, the evidence of Cst. Geldart to the effect that just after he turned the camera on, he observed a man, likely Mr. Thomas, put a baseball bat in the blue truck. This was several minutes before the accused left with Thomas Vaughan. Although they were not apparent in Cst. Geldart's view, the accused were all somewhere outside the house and in the driveway, where they were overheard by Ms. Wells. [199] There is also the evidence of Alexander Adams that the McRaes and Anson Schell loaded what he described as pipes into Thomas Vaughan's truck. This evidence is contested. Mr. Adams testified that the pipes were obtained from between the garage and the fence on the Wells side at the Horning Road house; he also testified as to where they were hidden later in the "Little Mexico" area. Much was made of both the fact that Cst. Geldart's camera did not pick this up at the Horning Road end and that when the area where the pipes were allegedly left was searched, nothing was found. There are many reasons why this could be so. [200] The most telling evidence respecting the pipes is the evidence from the "Little Mexico" intercepts. There have Anson Schell, Matthew McRae, and Daniel McRae in the conversation about "pipes" reproduced at paras. 94 and 96 herein. [201] Whatever the precise meaning of these incomplete conversations, they bespeak the presence of the weapons Alexander Adams says were loaded in Thomas Vaughan's truck. [202] Having seen what Mr. Cocks had done to Kaylin Phillips in response to either the hearsay provocation about Kody Phillips' claims about the Hells Angels, or to his recent manhandling of Kaylin Phillips, Daniel McRae cannot credibly assert that in collaborating with Mr. Cocks he expected a schoolyard fist fight. The far greater, immediate provocation of the car chase, and Mr. Cocks' call to Mr. Thomas in the aftermath, would only have accentuated the expectation that a proportionate response from Mr. Cocks' would be an unlawful assault of some severity. There can be no question that that is what Mr. McRae assisted Mr. Cocks to set up. [203] The presence of weapons in the Vaughan vehicle also negates the notion that what was intended was not, at a minimum, some form of assault causing bodily harm, or assault with a weapon. The presence of those weapons also renders highly improbable any notion that, while those in the Vaughan vehicle were armed, there was some reason to expect the Hells Angels would not be. [204] In his adverse relationship with the Phillipses, Daniel McRae had earlier in the same day experienced the usefulness of enlisting a Hells Angel on his side in the assault on Kaylin. If a schoolyard fist fight with the Phillipses was truly his objective, he would have withdrawn from any collaboration with Mr. Cocks, then and there. That is not what he did. [205] Counsel's submission that Daniel McRae's statement that he "would have played that out like knowing what happened there, a little differently " is a statement of regret, or indicates he did not know what Mr. Cocks and Mr. Thomas had planned, does not, in my view, accurately characterize his remarks. Mr. McRae does not express surprise. Rather the statement is, I think, more to the effect that what he had in fact enlisted in, the criminal purpose of causing a serious assault, had in its effect exceeded what he expected. That is precisely the sort of circumstance the charge of manslaughter is meant to address. I accept that Mr. McRae did not intend to participate in a killing. He did, however, participate in a common intention to carry out an assault upon one or more of the Phillipses. There is no plausible basis for the suggestion that his problem was with Kody Phillips while Norman Cocks' problem was with Dain Phillips, given his role in promoting a grievance between Kody Phillips and Mr. Cocks, and their joint experience of the car chase. The way events unfolded was, in this respect, a matter of happenstance. The objective was to assault the Phillipses who showed up. [206] Because counsel addressed R. v. W.D., [1991] 1 S.C.R. 742 (SCC), I will observe that as to crucial elements of the case, I do not believe Daniel McRae nor do I think his evidence raises a reasonable doubt about his guilt, nor do I think there is a reasonable doubt on the evidence as a whole. Mr. McRae's evidence was congruent with the truth when the truth served him. [207] I have said repeatedly that the state of the evidence is such that I cannot find that Daniel McRae or any of the accused directly participated in the beating of Dain Phillips. [208] Daniel McRae clearly aided in setting up the occasion for an assault, and he was no mere bystander, but exited the Vaughan vehicle for the purpose of participating in an assault, and with his friends, of lending the strength of numbers to that criminal purpose. The clearest example of this was the way the Vaughan vehicle waited for the Thomas vehicle to catch up before proceeding to the scene. This is indicative of a common purpose and counter indicative of separate agendas among members of the group with different members of the Phillips family. [209] I have given some consideration to the question of whether, at the scene, the actus reus became detached from the mens rea, given the way the encounter went. That is to say, I have considered whether the assault by Norman Cocks and Robert Thomas, principally, occurred so fast that, regardless of an intention to assist or be supportive, the accused cannot be said to have had an opportunity to abet anything. [210] I have also considered the question of whether, given the evidence about the Hells Angels introduced through Det/Sgt. Isnor, the presence of the accused or their assistance was likely of negligible effect, or whether that is in any case relevant. [211] I think on balance that the proper inference is to be drawn from the behaviour of the principals and the accused. They gathered and prepared with a common unlawful objective. The effect of numbers of supporters on the execution of such a purpose is incalculable. For this reason the tests are broadly stated, as in Cran, "A person aids in an offence under section 21(1)(b) when he knows that someone intends to commit an offence and is present with the intention of helping the other person commit the offence. A person abets an offence under section 21(2)(c) when he actively and intentionally encourages somebody else to commit an offence," or Dunlop, " in order to find the appellant guilty of aiding, abetting, counselling or procuring, it [is] only necessary to show that he understood what was taking place and by some act on his part encouraged or assisted in the attainment thereof." [212] By these standards, Daniel McRae clearly knew an offence was intended, that is, he understood what was taking place, and had a great deal to do with ensuring that it happened. His attendance at the scene was an act of assistance and encouragement. I say so notwithstanding that the purpose was so swiftly executed that the influence of that assistance is not easily estimated. [213] For these reasons I find Daniel McRae guilty of manslaughter beyond a reasonable doubt. [214] The submission for Matthew McRae turned on whether it has been established that his knowledge of the circumstances implicates him in the common purpose Daniel McRae formed with Norman Cocks to assault Dain Phillips, or if there remains at least a reasonable doubt that he thought he was simply attending a high school fist fight. [215] The key facts are that Matthew McRae certainly knew of the problem with Kody Phillips as a result of the Facebook posting on his page; that he responded immediately to Daniel McRae's summons, and took it seriously, saying his brother was in trouble; that he was at the Horning Road house where Mr. Cocks lived and around the preparations that were being made to go to McCurdy Road; and that he was out of the truck with his brother and Anson Schell at the scene. [216] The evidence of Michelle Wells suggests that the purpose of dealing with the car chase was being discussed in the driveway - a purpose in which both Daniel McRae and Norman Cocks were implicated, and the only event that could be construed as Daniel being in "trouble" - and her description of the activity in the driveway strongly suggests that anyone in the vicinity would have a clear understanding of what the speaker, probably Daniel McRae, was referring to. [217] Matthew McRae's willingness to engage in this purpose is exemplified by his immediate exit from the vehicle and movement toward the altercation. His responsibility in this regard is not diminished by the fact that, in the event itself, Dain Phillips was so quickly dispatched. [218] Alexander Adam's evidence that weapons were loaded into the Vaughan vehicle is affirmed by Mr. McRae in the "Little Mexico" conversations. The intercept at 20:26:53 (see paras. 94 and 96 herein) bears no other logical interpretation but that Matthew McRae's immediate reaction to the threat posed by Kaylin Phillips was to reach for the weapons that had been loaded for the purpose of engaging in an assault, not a fist fight. [219] Matthew McRae's comment about the gun (see para. 91), while I think it is not to be taken literally, clearly aligns him with the purpose of causing bodily harm to the Phillipses, or one of them, as it turned out, Dain Phillips. [220] Lastly, Matthew McRae's comments to the cell plant is manifestly an attempt to cast the Phillips brothers as the aggressors, when the weight of the evidence is clearly that the shovel and axe were used defensively. There is also the ambiguous and somewhat garbled remark: MM: Yeah, they fuckin' knew, they didn't who they were dealing with (indiscernible) what could happen here (indiscernible). Fuck, weren't too smart on this (indiscernible). [221] This reads as a suggestion that the Phillipses ought to have had a better appreciation of what could happen to them. Whether it reliably bears that interpretation is ultimately of no moment, however. I am satisfied beyond a reasonable doubt that Matthew McRae knew what they were dealing with in aligning with the Hells Angels to assault the Phillipses, and that he joined Norman Cocks and his brother in that unlawful purpose, which resulted in the death of Dain Phillips. [222] Applying the same tests I have outlined in relation to Daniel McRae I find Matthew McRae guilty of manslaughter beyond a reasonable doubt. [223] The evidence against Anson Schell is similar to that against Matthew McRae. He attended as a friend, and it is highly improbable that he was around the Horning Road assembly point without appreciating what had happened earlier that day to Norman Cocks and Daniel McRae, and the fact that they intended to cooperate and did cooperate to do something about it. [224] Anson Schell was present when preparations were being made. He participated at the scene to the extent of getting out of the truck and moving toward the scene, before its swift end and the rush back to the vehicles. [225] Mr. Schell confirms the presence of the pipes that must be those Alexander Adams said were loaded as weapons (see para. 96 herein). [226] Lastly, Mr. Schell is, if not the most garrulous, the most discernible voice on the "Little Mexico" intercepts. He describes the beating using bats, and observing Matthew McRae going for the pipes. He is obviously comfortable talking to Norman Cocks and, in effect, egging him on. When Daniel McRae expresses some misgivings about what happened, Anson Schell joins Mr. Cocks in asking "why?": DM: I would've - I would've played that out like - knowing what happened there, like differently fuckin'. NC: Why? AS: Why? (Indiscernible) Huh. NC: (Indiscernible) stand there (indiscernible) fuckin' AS: Yeah. NC: Rob's like "You wanna (indiscernible) with the Hells Angels". He's like "I didn't (indiscernible) nothing up. He goes (indiscernible) whack, right in the knees AS: (chuckles) NC: and then he's like - one more. Rob was goin', "boom boom" and that was it. Poof. AS: YEAH. NC: "Err." AS: Oh, yeah. [227] Mr. Schell seems untroubled by what happened to Dain Phillips. He speaks of Dain Phillips "taking a dirt nap". He mocks the Phillips for calling the police: NC: Fuckin' we've got a rat in the house. AS: (Indiscernible). I never even thought that neither man and I was like, "Holy fuck" if I even got kick shit and my buddy was shit-kicked on the ground I'd be picking him up, fucking throwing him in the truck, let's get the fuck outta here. Right? NC: Yeah, to the hospital. You don't go "Call the cops" AS: Yeah to the hospital - I wouldn't be doin' that shit. I would be like, "Let's go." "Fuck. I'll deal with this later." Like fuck. AA: Oh. AS: I'll come back for you. AA: I wouldn't mess (ph) with it (Indiscernible) AS: The cops ain't gonna do shit. NC: (Indiscernible) too eh? I was going right and I was like "Fuck - there's - I want this big fuck right here". AS: Mmm hmm. NC: He's just standing there like fuckin'. Fuck I think there was something wrong with him 'cause we walked up to him, he just stood there. He didn't even move. I swung the bat. He didn't even move. Just like "Boom", "mmm" (background - chuckling sounds) 00:14:41 NC: "Boom", just like cuttin' down a tree. (background - laughter) NC: Then he's like, "Mmm," and then it's like fucking', "Clunk." AS: And then he - (background - television playing) AS: Fuck, takin' a dirt nap. [228] Mr. Schell's strong alignment with what occurred negates any reasonable inference that he simply attended a fist fight and something unexpected occurred. [229] Again, applying the tests I articulated in relation to Daniel McRae, I am satisfied that Anson Schell joined in the common intentions of Daniel McRae, Norman Cocks and others to carry out the unlawful purpose of assaulting the Phillipses, and that he abetted that objective by his presence and support at the scene. [230] Accordingly, I find Anson Schell guilty of manslaughter beyond a reasonable doubt. [231] Robert Cocks is in a somewhat different position. The intercepts in evidence show that he had a close relationship with Norman Cocks. They lived together. They were aligned not only by familial bonds but by a common interest in motorcycles and motorcycle clubs. In the intercepts Mr. Cocks is heard to say "support your local Hells Angels". His motorcycle is plastered with stickers proclaiming such support. The house he shared with Norman Cocks and Robert Thomas is a shrine to the Hells Angels. There is every indication that Robert Cocks is as inured to the lifestyle of the Hells Angels as anyone who was not a member could be. [232] Robert Cocks' statement to the RCMP confirms that he was aware of the chase earlier in the day. He acknowledges he was at the scene. He suggests that he was chased by a person wielding an axe. [233] There is however a paucity of evidence of his participation in any of the planning or preparation undertaken by others at Horning Road. There is some evidence that he equipped himself with gloves and some evidence that he had an object in his hands, but the reliable evidence is quite inconclusive as to whether he made any move toward the scene of the beating or whether he effectively stayed back, like Mr. Erfle, Mr. Adams and Mr. Vaughan. There is no evidence, post-offence, of conduct that sheds light on what occurred at the scene. There is evidence that he attempted to assist Norman with an alibi, but that does not have any particular bearing on his involvement in the assault itself. [234] I think the evidence of Mr. Cocks' support for the Hells Angels might have been corroborative if there were better evidence about his activities before and at the scene. I think it would be unsafe, however, to draw an inference straight from that lifestyle to active participation in the events of June 12, 2011. The evidence against Mr. Cocks does not foreclose the possibility that he attended the scene as a bystander. As was said in Dunlop " mere presence at the scene of a crime is not sufficient to ground culpability." For this reason I find that the case against Mr. Cocks has not been proved beyond a reasonable doubt. [235] Robert Cocks is therefore acquitted of the charge of manslaughter. "McEwan J." _______________________________ The Honourable Mr. Justice McEwan