R. v. Reid, 2010 ABQB 720

Court of Queen ’ s Bench of Alberta Citation: R. v. Reid, 2010 ABQB 720 Date: 20101126 Docket: 090566597Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Alexander Edward Reid and Adam Michael Brown Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. Paul Belzil _______________________________________________________

Part 1 The Trial [ 1 ] Alexander Edward Reid and Adam Michael Brown, have each been charged with one count of second degree murder and one count of assault with a weapon contrary to ss. 235(1) and 267 (

a) of the Criminal Code . [ 2 ] On August 30, 2008 at approximately 1:30 am, Mohamed Ibrahim was fatally shot while standing outside the River Cree Casino located on the western outskirts of the City of Edmonton. In the same incident Munira Omar received a non-life threatening gunshot wound to her hip.

[ 3 ] Following a lengthy judge alone trial, defence counsel conceded that the Crown has proven, beyond a reasonable doubt, all of the elements of both offences save and except for the issue of identification of the offenders. The Accused elected to call no evidence. [ 4 ] The autopsy of Ibrahim revealed that he was shot by two different weapons, which conclusion was confirmed by the discovery at the scene of shell casings from a 45 calibre handgun and a 9 mm handgun. The guns used in the shootings were not recovered. [ 5 ] The Crown tendered no other physical evidence and there was no photo line up evidence.

It was admitted that the Accused were arrested, without incident, on October 9, 2008.

Part 2 The River Cree Casino Scene [ 6 ] Commencing late on Friday, August 29, 2008 and continuing into the early morning hours of Saturday, August 30 th , a number of people attended at the River Cree Casino for a birthday party being held for two members of the Somali-Canadian community. For the sake of convenience, I will refer to the party guests as the Somali group. [ 7 ] The River Cree Casino is part of a large entertainment complex. A Marriott Hotel is situated adjacent to the casino and is connected to it. Inside the casino is a nightclub known as the Touch Lounge which is located adjacent to the gaming area. The birthday party was held in the VIP

section of the Touch Lounge. [ 8 ] The only access to the Touch Lounge is through the casino. Access to the casino is gained through a number of glass doors which face east. There is a parking lot located in front of the casino as well as another parking lot in front of the Marriott Hotel which is located south of the casino.

There is an overhanging roof, which is illuminated at night, at the front of the casino supported by large stone pillars. [ 9 ] The Touch Lounge has a capacity of approximately 250 patrons and was very busy into the early morning hours of August 30 th . [ 10 ] The River Cree complex is equipped with a series of surveillance video cameras which are monitored and controlled in a secure room. Cameras are located throughout the complex, including the Touch Lounge, the front entrance to the casino and the interior lobby through which guests must pass in order to enter the Touch Lounge.

The security video system is equipped with a digital time recording mechanism which shows the time of recorded events. Security staff are employed to monitor the casino floor, front entrance as well as the Touch Lounge. [ 11 ] As part of the Crown’s case, a number of video excerpts were entered into evidence depicting events in the minutes before the shootings and immediately following them. [ 12 ] Some members of the Somali group rented a room in the hotel for use as a change room. Some of these guests consumed alcohol and smoked marijuana before moving to the Touch Lounge. The Somali group rented the VIP

section of the Touch Lounge which was curtained off but guests in the VIP

section had free access to the main part of the Lounge. [ 13 ] It is not disputed that the Accused were at the Touch Lounge in the early morning hours of August 30 th . They drove to the River Cree in separate vehicles. Adam Brown was accompanied by Jahmeil Sanders who was acquainted with both Accused.

[ 14 ] Surveillance video shows that at approximately 1:30 am on August 30 th a fight broke out in the Touch Lounge. The surveillance footage did not capture the entire fight, but did capture most of it. [ 15 ] The fight involved two groups, with the first comprising both male and female members of the Somali group and numbering at least a dozen individuals. The second group was comprised of the Accused. [ 16 ] Casino security broke up the fight very quickly and it appears that the fight lasted approximately one minute.

It is impossible on this evidence to determine everything that happened during the fight, however, a number of fact findings can be made about it. [ 17 ] Following the fight, one member of the Somali group, Sabah Adad, took a photograph of the smaller group involved in the fight. This photograph, which was exhibited at trial, shows Adam Brown in the immediate foreground, behind him is Alexander Reid and behind Reid is Jahmeil Sanders. In the background there was another unidentified person as well as an incomplete image of a fourth individual.

This incomplete image only shows the right arm of an individual who appears to be wearing a black jacket with a grey decorative stripe running the length of the sleeve. This individual was not identified. There is no evidence as to whether these unidentified individuals were with the Accused or not in the Touch Lounge. [ 18 ] The photograph depicts Brown wearing a colourful shirt, no hat and that his hair was tied in a ponytail. Reid is wearing a black hoodie, with the hood down, and is wearing a medium blue coloured baseball cap with the logo for the Los Angeles Dodgers baseball team inscribed on the front.

The brim of the cap is facing forward. [ 19 ] The Accused made a formal admission that Mohamed Ibrahim was in the Touch Lounge during the fight and is clearly visible in the surveillance video, which depicts him punching Brown at least once in the face. [ 20 ] I find as a fact that both Reid and Brown were punched a number of times by members of the Somali group.

There is no evidence that anyone else with Reid and Brown was punched, including Sanders. [ 21 ] The River Cree has a zero tolerance policy for fighting on the premises and immediately following the break up of the fight both groups were told that they had to leave the premises. [ 22 ] At approximately 1:30 am, video surveillance clearly shows the Accused and Sanders leaving the Touch Lounge and exiting the casino through the main front doors.

The video footage also shows an unidentified black male person wearing a black baseball cap facing backwards run out of the Touch Lounge immediately before the departure of the Accused and Sanders and shows him jumping over a rope barrier and running off camera. The jacket this individual is wearing appears to match the jacket worn by the individual whose right arm is visible in the photograph taken by Ms. Adad. [ 23 ] Video surveillance also shows the Somali group exiting the River Cree shortly thereafter.

Mohamed Ibrahim is clearly visible and is shown leaning against one of the front stone pillars supporting the overhanging roof as he smoked a cigarette. [ 24 ] There is no video of the actual shooting of Ibrahim or Omar, but there is video of bystanders fleeing immediately after shots were fired. [ 25 ] A number of individuals in the Somali group were standing in front of the casino doors when the shootings occurred.

Part 3 How Many Shooters Were Involved?

[ 26 ] As noted, two handguns were used in the shootings but were never recovered. The issue then arises, were there two shooters involved or one shooter carrying two handguns? [ 27 ] As will be discussed later in my judgment, a number of witnesses gave descriptions of one shooter. A taxi driver, Mr. Yousef, who was parked in front of the front entrance of the casino at the time, observed two males running away immediately after the shooting stopped. Gedi Hussein, who was standing outside when the shootings occurred, observed two shooters. [ 28 ] No witness observed one shooter carrying two guns.

Although this is theoretically possible, based on the evidence presented in this trial the suggestion that one shooter may have fired two guns is nothing more than speculation. Speculation is not evidence. [ 29 ] I find as a fact that two shooters were involved, each firing one handgun and that the shooters fired their guns almost simultaneously as part of a joint criminal venture.

Part 4 Circumstantial Evidence of Motive [ 30 ] The Crown is not required to prove motive as an element of a criminal offence. However, the existence of motive may be used as circumstantial evidence of guilt in deciding whether the Crown has met its burden of proving, beyond a reasonable doubt, the guilt of an accused. [ 31 ] In this trial, the only evidence of potential motive arises out of the fight in the Touch Lounge.

There is no evidence that more than one fight occurred at the River Cree at that time. [ 32 ] There is no evidence that the Accused knew any member of the Somali group or had any prior contact with members of that group, thus the individuals involved in the fight were complete strangers to each other. [ 33 ] It is uncontroverted that both Accused were involved in the fight with the larger Somali group and both were punched. [ 34 ] There is no evidence of a verbal or physical conflict between members of the Somali group, including Mohamed Ibrahim and anyone else at the River Cree the evening of August 29 th into the early morning hours of August 30 th and a complete absence of evidence which would support the argument that anyone else at the River Cree at that time had any motive to attack members of the Somali group.

Although he was present when the fight occurred, Sanders was not punched. [ 35 ] In his KGB statement Jahmeil Sanders related that as a result of being punched, both Accused were angry and wanted to retaliate against the Somali group.

Later in this Judgment I will explain why I accept this KGB statement as being true. [ 36 ] It is not argued by the Crown that the Accused had exclusive opportunity to commit these offences, but the Crown does argue that the Accused were the only individuals present that early morning with both opportunity and motive. [ 37 ] In the result, I find that the Crown has proven that both Accused had motive to commit the offences with which they are charged as a result of being punched in the Touch Lounge and wanting to retaliate as a consequence and that this is one factor to be considered in determining whether the Crown has proven their guilt beyond a reasonable doubt.

Part 5 The Crown’s Case Against Adam Brown

[ 38 ] None of the Crown witnesses identified Adam Brown as a shooter. The Crown’s case against him is based on statements allegedly made to Sanders by Brown together with circumstantial evidence including motive.

a) Zuhaira Alawi [ 39 ] Ms. Alawi attended the birthday party at the Touch Lounge as part of the Somali group. She testified that she had not consumed any alcohol as she was preparing for the start of Ramadan. [ 40 ] She observed the fight in the Touch Lounge, but was not involved in it. She testified that a Somali male known to her by the nickname “Spidey” punched Brown twice in the face. She also testified to hearing a verbal exchange between Brown and Sabah Warsame who was part of the Somali group and who was involved in the fight. [ 41 ] She heard Brown say to Ms. Warsame “I’ll see you outside”.

She perceived this to be a threat from Brown directed towards Ms. Warsame and she reported what she heard to one of the casino security officers in the Touch Lounge. [ 42 ] She was shown the photograph taken inside the Touch Lounge by Ms. Adad after the fight and identified Brown as being the person in the foreground. She recalled his ponytail hairstyle. While testifying before me, her hair was in a ponytail, and she compared Brown’s hairstyle at the time to hers. When asked why she would remember Brown she replied that she did take note of him at the time because she found him attractive.

She also provided a dock identification of Brown. [ 43 ] I found Ms. Alawi to be a very credible witness. She was sober and in a very good position to see the fight and to hear what Brown said immediately after it to Ms. Warsame. [ 44 ] I find as a fact that Brown said, “I’ll see you outside” to Ms. Warsame and that this statement was a threat and was uttered as a direct result of Brown being involved in the fight and being angry because he was punched by several members of the Somali group.

b) Jahmeil Sanders [ 45 ] Jahmeil Sanders is a friend of both Accused and as of August 2008 had known Reid for five years and Brown for two years. Saunders went to the River Cree with Brown that evening. Following the shooting, the RCMP interviewed Sanders who provided a statement which did not incriminate either Accused and which stated that Sanders had been driven home from the River Cree by his brother. This statement was not under oath and was provided to the RCMP on October 9, 2008.

The RCMP officers who took the initial statement, on hearing the reference to his brother, questioned the brother who flatly stated that he was not at the River Cree Casino on August 29 th or 30 th , 2008 and had not driven Sanders home. [ 46 ] The RCMP officers confronted Sanders with this and he admitted that he had lied about his brother’s involvement.

The RCMP officers advised Sanders that both Accused had been charged with second degree murder and that given that he had lied to them they were wondering if he should be treated as a person of interest in the homicide investigation. [ 47 ] He replied “I’m not going down for this.” He was then asked if he would voluntarily accompany the RCMP officers to K Division Headquarters in Edmonton for the purposes of providing a further statement and he agreed. [ 48 ] At RCMP K Division Headquarters the officers, utilizing the procedure approved by the Supreme Court of Canada in R. v.

K.G.B. 1993 CanLII 116 (SCC) , [1993] 1 S.C.R. 740, obtained a KGB statement from him, that is a video and audio tape statement under oath and after he had been warned that he could face criminal charges if he provided a false statement.

[ 49 ] In voir dire the complete videotape was played and as well I was provided with a transcript of the interview. [ 50 ] The KGB statement is approximately 55 minutes in length. In brief

summary, Sanders stated that after the fight in the Touch Lounge, Reid and Brown were both angry as a result of being punched and wanted to retaliate against the Somali group. [ 51 ] In the KGB statement he related that the three of them exited the River Cree together and Reid said to Brown “I’ll see you on the other side” referring to the other side of the parking lot in front of the Marriott Hotel and also said “We’re gonna get these guys”.

Reid then walked away and Sanders did not see him again. [ 52 ] Sanders then stated that he walked with Brown to Brown’s Monte Carlo vehicle which was parked in the casino parking lot. According to Sanders, Brown drove a short distance over to the back of the parking lot in front of Marriott Hotel, then stopped the vehicle, got out and left the engine running. [ 53 ] Sanders observed Brown walking towards the front of the casino. He then heard four or five gunshots approximately 30 seconds after Brown left the vehicle. Approximately 30 seconds after he heard gunshots he observed Brown running back to the vehicle.

At no time did Sanders see Brown with a gun. [ 54 ] In his KGB statement Sanders stated that he asked Brown what happened and Brown replied with the following statements:

a) That guy got shot up.

b) We shot the guy.

c) They had to get done.

d) We did it ‘cause we got punched out.

e) The guy had to get shot. [ 55 ] In testimony before me Sanders stated that he told numerous lies in his KGB statement and recanted it entirely. He testified before me that he and Brown left the River Cree after the fight without stopping and that he has no information about the shootings. He also testified that he lied in the KGB statement because he was concerned that he might be charged as an accessory. [ 56 ] Defence counsel conceded that his KGB statement was admissible. [ 57 ] Crown counsel argues that the KGB statement is accurate and that I should believe it.

Defence counsel argue that Sanders is an admitted liar and that no weight should be attributed to it. [ 58 ] I had the opportunity to carefully observe Sanders as he testified before me and during the videotape interview. [ 59 ] I have concluded that Sanders falsely testified before me as to events at the River Cree and that his KGB statement is an accurate, complete and truthful description of events which transpired from the time he arrived at the River Cree until he left the site. [ 60 ] I identify the following reasons for believing Sander’s KGB statement to be true: 1. The KGB statement was given under oath.

2. Sanders was warned in clear, unambiguous terms that he could face criminal charges if he provided a false statement. 3. The KGB statement was video and audio taped. The quality of the video and audio recording is excellent. 4. When Sanders provided his KGB statement he was fully aware of the seriousness of the situation as he knew his friends Reid and Brown had been charged with murder. 5. The KGB statement was provided at K Division Headquarters to RCMP officers. 6. The KGB statement was provided on October 9, 2008 approximately five weeks after the event. 7. The KGB statement is very lengthy and detailed. 8.

There is no evidence that the KGB statement was in any way contaminated such that the statement contains only Sander’s version of events. 9. The statement was completely voluntary. There is no evidence that Sanders was the subject of any threats or given any promises. The conduct of the RCMP was entirely appropriate and professional in their dealings with him. Given that Sanders lied about his brother’s involvement, the RCMP officers were fully justified at the time in considering Sanders to be a person of interest in the homicide investigation. 10.

The KGB statement is primarily the narrative of Sanders unprompted by police. No factual information or conclusions were suggested to Sanders by the police. 11. His demeanour in the KGB statement appears normal and he was responsive to questions. 12. Sanders had no motive to lie in the KGB statement for the following reasons:

a) The Accused were his friends.

b) There is no evidence that Sanders bore any malice towards either Accused or that he was in conflict with them.

c) Knowing that his friends had been charged with murder why would Sanders worsen their legal exposure by relating to the police incriminating false statements about their involvement in the shootings?

d) If Sanders was concerned about his personal exposure to criminal charges why would he not either remain silent or tell the police that the Accused were not involved in the shootings? 13. The KGB statement was given after telling the RCMP officers “that he was not going down for this”, which statement I believe was made by Sanders spontaneously. 14. The KGB statement was not contradicted in any material way by the evidence of other witnesses and some portions of it are confirmed by video surveillance evidence. 15. Sanders was available to be cross-examined. 16.

The KGB statement contains a number of references to Sanders being shocked and alarmed by what Brown told him as they left the River Cree Casino site. This can only mean that Brown told him something bad had happened. Sanders then said “Just take me home and I’m not trying to be part of this”. When Sanders got home he said that he was crying, did not know what to do and had something on his heart. He felt it was necessary to tell his parents what had happened. If nothing bad happened why did Sanders feel it was necessary to discuss the situation with his parents?

c) Has the Crown Proven the Guilt of Adam Brown Beyond a Reasonable Doubt? [ 61 ] I find as a fact that as Sanders and the Accused left the River Cree Casino, Reid said to Brown “I’ll meet you on the other side” and “We’re gonna get these guys.” Crown counsel concedes that this evidence is not evidence against Brown but only against Reid. [ 62 ] I also find as a fact that Brown was driving the Monte Carlo with Sanders as a passenger. The Monte Carlo was parked in front of the River Cree Casino in the parking lot and Brown drove the vehicle a short distance into the parking lot in front of the Marriott Hotel. He stopped the vehicle, left the engine running and got out.

[ 63 ] He then walked towards the front of the River Cree Casino and approximately 30 seconds after he left the vehicle Sanders heard four or five gunshots. Approximately 30 seconds after the shots were fired Brown ran back to the Monte Carlo and drove away. [ 64 ] I also find as a fact that Brown, after returning to the vehicle and in response to Sander’s question as to what happened, made the statements to Sanders as outlined in the KGB statement:

a) That guy got shot up.

b) We shot the guy.

c) They had to get done.

d) We did it ‘cause we got punched out.

e) The guy had to get shot. [ 65 ] These statements made by Brown against his own interest are clear and unambiguous and were made shortly after he walked out of the River Cree and shortly after the shootings. The Crown concedes that these statements are evidence against Brown only and not against Reid. [ 66 ] I am satisfied that the Crown, on the basis of Brown’s statements coupled with circumstantial evidence, has proven beyond a reasonable doubt that Brown was one of the shooters and accordingly I find him guilty of second degree murder and assault with a weapon contrary to ss. 235(1) and 267 (

a) of the Criminal Code .

Part 6 The Crown’s Case Against Alexander Reid [ 67 ] The Crown’s case against Alexander Reid is largely based on eyewitness identification coupled with what is argued to be supporting circumstantial evidence.

a) The Need to Approach Eyewitness Evidence with Caution [ 68 ] It is a fundamental principle in the Canadian criminal justice system that eyewitness identification must be scrutinized carefully and approached with great caution. There are dangers inherent in eyewitness identification. It is not merely a function of determining the credibility of witnesses as honest witnesses can be mistaken about identification. [ 69 ] The Alberta Court of Appeal in R. v. Atfield 1983 ABCA 44 (CanLII) , [1983] A.J.

No. 870, said the following at paragraph 3: The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity.

The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other evidence. In cases, where the criminal act is not contested and the identity of the accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and must itself be put on trial, so to speak. . . . At paragraph 6 the following passage appears: It goes without saying that correctness of identification must be decided by examining the whole of the evidence left on the scales at the

end of the case and not by selectively picking and accepting those items of evidence which support correctness while disregarding contradictory evidence not specifically rejected for cause, which might leave correctness in doubt. The accused is entitled to the benefit of the most favorable

interpretation of discrepancies in evidence which cannot otherwise be resolved. . . . [ 70 ] The Ontario Court of Appeal in R. v. Quercia 1990 CanLII 2595 (ON CA) , [1990] O.J. No. 2063 made the following observation in paragraph 25: 25 The existence of confirmatory circumstantial evidence can go a long way to minimizing the dangers inherent in eyewitness identification. [ 71 ] I am fully alive to the reality that eyewitness identification can be impacted by darkness and the presence of artificial lighting as well as whether eyewitnesses have consumed intoxicants.

Events like these shootings unfold over a brief period of time and this too impacts eyewitness identification. [ 72 ] With these concerns in mind, I will now go on to consider the eyewitness identification evidence in this case in the context of all of the evidence presented at trial.

b) The Evidence of Asha Farah [ 73 ] Asha Farah was a guest at the birthday party. She testified before me to having virtually no memory of what occurred in the Touch Lounge or what occurred outside the River Cree Casino at the time of the shootings. She did acknowledge that she was standing beside Ms. Omar when she was shot. [ 74 ] The RCMP obtained a KGB statement from her on September 8, 2008 and during the trial Crown counsel applied to enter her KGB statement for the substantive truth of the contents.

Defence counsel consented to the threshold admissibility of her KGB statement. [ 75 ] In her KGB statement Ms. Farah described in detail the fight in the Touch Lounge and as well described one of the shooters whom she observed outside. She described this individual as being one of the members of the small group who were confronting the larger group of Somalis in the Touch Lounge. She referred to him as “the chubby guy”.

She referred to the other person as having his hair in a ponytail and said both were being punched. [ 76 ] She then described that as she was standing outside the River Cree she observed the individual she identified as being “the chubby guy” approach Mohamed Ibrahim, pull out a gun and commence firing. [ 77 ] In her KGB statement she acknowledged hearing that Sabah Adad had taken a photograph inside the Touch Lounge of the smaller group, but stated that she had never seen it. [ 78 ] After providing a description of the two individuals she saw being punched by members of the Somali group, she was shown the Adad photo for the first time and stated that she was 100% sure that the “chubby guy” was in the photograph standing behind the individual she called “the ponytail guy”, now identified as Adam Brown.

The person standing behind Brown and in front of Jahmeil Sanders is the Accused Alexander Reid. [ 79 ] Crown counsel argues that her KGB statement is credible and should be accorded significant weight. Defence counsel argues

that her statement should not be believed because she was under the influence of alcohol at the time and her evidence contaminated as a result of discussing this incident with other members of the Somali-Canadian community. [ 80 ] I have concluded that Ms.

Farah falsely testified before me as to events at the River Cree and that her KGB statement is an accurate, complete and truthful description of events she observed and heard and accordingly should be accorded significant weight. [ 81 ] In reaching this conclusion I accept that before giving her KGB statement to the RCMP she had discussed what transpired with other members of the Somali-Canadian community.

The fact that she did so, however, does not mean that she was unable to describe what she personally observed and heard as contrasted to the perception or opinion of others as to what occurred. [ 82 ] I have concluded that her KGB statement should be accorded significant weight for the following reasons: 1. The KGB statement was given under oath. 2. She was warned in clear, unambiguous terms that she could face criminal charges if she provided a false statement. 3. The statement was video and audio taped. The video and audio is of excellent quality. 4.

The statement is lengthy, approximately 70 minutes in duration and is very detailed including specific details of the gun she saw. 5. The statement was obtained by RCMP officers at K Division Headquarters. 6. Ms. Farah was fully aware of the seriousness of the matter under investigation. 7. Her statement is primarily her narrative of what she observed. She was not prompted by the police or given leading questions. 8. She had no motive to provide a false statement. 9. Although she was aware of the existence of the Adad photograph she had never seen it before providing the KGB statement. 10.

She provided a detailed description of both Brown and Reid before she was shown the Adad photograph. Her description was quite accurate, including the light skin tone of the Accused and the clothing they were wearing at the time. 11. She was careful to identify that she was relying on information from others in certain respects whereas in other subject areas she was relying on her own observations. She clearly understood the importance of that distinction. 12. The sequence of events in her KGB statement is confirmed by video surveillance and the testimony of other witnesses. 13.

It is uncontroverted that she was standing beside Ms. Omar facing towards Mohamed Ibrahim when the shootings started. She was approximately two metres from Ibrahim. 14. Her KGB statement was completely voluntary. She was not threatened by the police or given any promises. Police conduct in the obtaining of the statement was entirely appropriate and professional. 15. She spoke normally and without hesitation. Her description flows logically and was not disjointed. 16.

She was available for cross-examination. [ 83 ] I am fully aware that the KGB statement does contain some hearsay references which have no probative value and which I have ignored.

c) Other Eyewitness Evidence

i) Schweat Gberezghier [ 84 ] This individual was part of the Somali group and was standing outside at the time of the shootings. She observed a male running to the parking lot, but only after shots were fired. She did not observe this individual’s face, but did confirm that he was dressed all in black, was wearing a hoodie, a black baseball cap and was approximately 5 feet 8 inches tall. She could not say if this individual was involved in the shootings or not.

ii) Gedi Hussein [ 85 ] He was part of the Somali group standing outside and did acknowledge that he had consumed some alcohol that evening but could not recall how much. He saw an African-Canadian male with brown, caramel coloured skin holding a gun, whom he described as being muscular and chubby. He did not see this individual’s face. He testified that there were two shooters, but caught a glimpse of one only. iii) Vincent Rain [ 86 ] Vincent Rain was a security guard and was working inside the lobby area at the time of the shootings.

He saw the back of one shooter only and did not see this individual’s face. iv) Rona Roan [ 87 ] She was a security officer on duty and was in the interior front lobby area at the time of the shootings thus was viewing the scene through the front glass doors. She observed one shooter whom she viewed from behind, thus she did not see this individual’s face. She confirmed that this individual had all black clothing and recalls that he was wearing a black hat with the brim turned to the right.

She could not describe this individual’s skin colour but indicated that he was approximately 6 feet to 6 feet 2 inches tall and slim, and had baggy clothing.

v) Kassa Yousef [ 88 ] He was sitting in a taxi parked in front of the casino at the time of the shootings. He saw two shooters, one taller than the other. He described one as having a ponytail whereas the other had a white shirt and black hat. He did not see the face of either, but confirmed that both had dark skin.

d) Non-Eyewitness Evidence

i) Evidence of Jameil Sanders [ 89 ] I have already concluded that I believe Sanders’ KGB statement including the description by Sanders of Reid saying to Brown as they exited the casino shortly before the shooting: “I’ll see you on the other side” and “These guys are gonna to get it”. These statements by Reid are clearly admissions against his own interest. ii) Surveillance Video [ 90 ] The surveillance video excerpts confirm the involvement of the Accused in the fight in the Touch Lounge and that Reid, Brown and Sanders exited the premises at approximately 1:30 am, a few minutes before the shootings. iii) Evidence of Reid’s Motive

[ 91 ] I accept that Reid was angry as a result of being punched in the fight and wanted to retaliate and, therefore, had motive to attack members of the Somali group.

e) Has the Crown Proven the Guilt of Alexander Reid Beyond a Reasonable Doubt ? [ 92 ] I find as a fact that Gedi Hussein and Ms. Farah were observing the same individual. While Hussein did not see the face of the person he was observing, he did observe a muscular African-Canadian male with brown, caramel coloured skin.

Schweat Gberezghier confirmed that the shooter was wearing a hoodie and a black baseball cap, but no mention was made of the brim of the cap being tilted to the right or facing backwards. [ 93 ] I find that Rona Roan, who was viewing the shooting from the interior of the casino, honestly but mistakenly described the shooter’s baseball cap as being black with the brim tilted to the right. [ 94 ] The taxi driver, Mr.

Yousef, described one shooter with a ponytail who I have found to be Brown and the other wearing a white shirt and a black hat with one being taller than the other. [ 95 ] The witnesses, Gberezghier, Farah, Hussein and Yousef made no reference to the baseball cap on the shooter’s head facing backwards or with the brim of the cap tilted to one side. [ 96 ] It is clear from the Adad photograph taken inside the Touch Lounge, that Reid is approximately 6 feet tall, has a muscular build and has brown, caramel coloured skin. He is wearing a white tee shirt and a black jacket.

He is wearing a medium blue coloured baseball cap, with the brim facing forward, inscribed with the logo of the Los Angeles Dodgers baseball team. [ 97 ] The medium blue coloured cap could easily be mistaken for a black cap at night with artificial lighting present. [ 98 ] The Adad photograph, which was taken minutes before the shootings, is extremely significant in confirming Ms.

Farah’s eyewitness identification because she had never seen the photograph before providing her KGB statement and her description of both Accused is substantially verified by it. [ 99 ] This photograph provides circumstantial confirmatory evidence of the eyewitness identification evidence of Reid by Ms.

Farah. [ 100 ] The most significant supporting evidence of the eyewitness identification of Reid is Sanders’ statement that as he and the Accused were exiting the premises Reid said to Brown “I’ll see you on the other side” and “These guys are gonna to get it.” The expression “These guys” in context can only refer to members of the Somali group and the expression “are gonna get it” in context can only refer to the retaliation Reid wanted to mete out as a result of being punched during the fight in the Touch Lounge.

The shootings occurred a few minutes after these statements were made. [ 101 ] In context, these statements can only be interpreted as meaning that Reid, who was angry and wanted to retaliate, knew there was going to be some interaction at the River Cree with members of the Somali group at that time. [ 102 ] The Crown has presented credible circumstantial confirmatory evidence which minimizes the dangers of relying on Ms. Farah’s eyewitness identification of Reid as being the person she saw firing a gun. [ 103 ] I have concluded that this circumstantial confirmatory evidence coupled with Ms.

Farah’s eyewitness identification evidence is

sufficient to establish, beyond a reasonable doubt, that Alexander Reid was the other shooter. [ 104 ] Accordingly, I find Alexander Reid guilty of second degree murder and assault with a weapon contrary to sections 235(1) and 267 (

a) of the Criminal Code . Heard from October 25 th to November 10, 2010. Dated at the City of Edmonton, Alberta this 26 th day of November, 2010. R. Paul Belzil J.C.Q.B.A. Appearances: Ashley Finlayson QC Melanie Hayes-Richards for the Crown D’Arcy Depoe Fleming Depoe Banks for Alexander Reid Darin H. Slaferek Moreau & Company for Adam Brown