R. v. Briscoe, 2012 ABQB 239

Court of Queen ’ s Bench of Alberta Citation: R. v. Briscoe, 2012 ABQB 239 Date: 20120411 Docket: 100723519Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Michael Erin Briscoe Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ Restriction on Publication: By Court Order, any information that may identify the persons described in these Reasons for Judgment as Witness 1, Witness 2 and DDT may not be published, broadcast, or transmitted in any manner.

There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code s 486.4.

I. Introduction.............................................................................................................. Page: 4 A. Previous and Related Proceedings......................................................... Page: 4 B. Pre-Trial Applications................................................................................ Page: 5 C. Overview and General Issues................................................................... Page: 5 II. Meyer....................................................................................................................... Page: 6 A.

Agreed Statement...................................................................................... Page: 6 B. Witness Testimony..................................................................................... Page: 7 1. Evalina Meyer (from the Agreed Statement)............................... Page: 7 2. Kelley Laura Clark.......................................................................... Page: 7 3. Other Witnesses............................................................................. Page: 8 4. Bradley Schroter (from the Agreed Statement).......................... Page: 8 5. Staff Sgt.

Gary Rhodes.................................................................. Page: 9 6. Cst. Jason William Pertson........................................................ Page: 10 7. Dr. Bernard Gerhard Bannach................................................... Page: 10 8. Stephanie Rosa Bird................................................................... Page: 12 a. General Circumstances.................................................. Page: 12 b. The Meyer Murder............................................................ Page: 12 c. Post Conviction Events...................................................

Page: 13 9. Michael Erin Briscoe................................................................... Page: 15 a. General Observations..................................................... Page: 16 b. Testimony on General Matters....................................... Page: 16 c. Testimony on Meyer’s Murder........................................ Page: 17 C. Physical and Forensic Evidence............................................................ Page: 18 III. Courtepatte........................................................................................................... Page: 18 A.

Agreed Statement................................................................................... Page: 18 B. Testimony................................................................................................. Page: 19 1. Sheena Marie Audrey Arnault.................................................... Page: 19 2. Sorin Andronic (from the Agreed Statement)........................... Page: 19 3. Maria Vraciu (from the Agreed Statement)............................... Page: 20 4. Mike Kachuk (from the Agreed Statement).............................. Page: 20 5. Staff Sgt.

Sharon Gina Smith..................................................... Page: 21 6. Cst. Sheldon Eric Hynes............................................................. Page: 22 7. Cst. Curtis Ping............................................................................ Page: 23 8. Dr. Graeme Dowling.................................................................... Page: 24 9. Keisha Ursula Bzdel.................................................................... Page: 25 10. Corey Trent Clarke...................................................................... Page: 26

11. Jordan Garry Schauenberg........................................................ Page: 26 12. Witness 1...................................................................................... Page: 27 13. Witness 2...................................................................................... Page: 30 14. Det. Kevin Albert Schindeler...................................................... Page: 31 15. DDT............................................................................................... Page: 32 a. Background...................................................................... Page: 32 b.

April 2, 2005 - Early Events............................................ Page: 32 c. At the Golf Resort............................................................. Page: 34 d. Post-Murder Events......................................................... Page: 37 16. Stephanie Bird............................................................................. Page: 37 a. April 2, 2005 - Early Events............................................ Page: 38 b. At the Golf Resort............................................................. Page: 38 c.

Post-Murder Events......................................................... Page: 39 17. Michael Erin Briscoe................................................................... Page: 40 a. Background...................................................................... Page: 40 b. April 2, 2005 - Early Events............................................ Page: 40 c. The Drive to the Golf Resort........................................... Page: 41 d. At the Golf Resort............................................................. Page: 42 e. Post-Murder Events.........................................................

Page: 45 C. Physical and Forensic Evidence............................................................ Page: 46 D. Briscoe’s Statements to the RCMP....................................................... Page: 47 1. Interview 1, April 11, 2005, Cst. K. Brophy............................... Page: 47 2. Interview 2, April 11, 2005, Cst. K. Brophy............................... Page: 48 3. Interview 3, April 12, 2005, Cst. K. Brophy............................... Page: 48 4. Interview 4, April 12, 2005, Cst. P. Waldorf.............................. Page: 48 IV.

Credibility and Reliability.................................................................................... Page: 49 A. W(

D) Analysis.......................................................................................... Page: 49 B. Witness Credibility and Reliability......................................................... Page: 51 C. Briscoe’s Credibility and Reliability....................................................... Page: 53 D. Other Legal Principles that Relate to Witness Credibility................... Page: 56 1. Young Witnesses......................................................................... Page: 56 2. Disreputible “Vetrovec” Witnesses........................................... Page: 57 E.

Witness Credibility................................................................................... Page: 59 1. Uncontroversial Witnesses......................................................... Page: 59 2. General Principles....................................................................... Page: 59 3. Witnesses With Disputed Credibility and Reliability................ Page: 60 a. Witness 1.......................................................................... Page: 60

b. Bird.................................................................................... Page: 61 c. DDT................................................................................... Page: 63 V. Findings of Fact................................................................................................... Page: 63 A. Meyer Murder........................................................................................... Page: 63 B. Courtepatte Murder................................................................................. Page: 64 VI.

Analysis................................................................................................................. Page: 66 A. Standard of Proof.................................................................................... Page: 66 B. Meyer’s Murder........................................................................................ Page: 66 1. Briscoe’s Presence at the Scene.............................................. Page: 66 a. Was Bird Present?.......................................................... Page: 67 b. Was Briscoe Present?....................................................

Page: 69 2. Meyer’s Murder............................................................................ Page: 73 3. Ancillary Issue - Meyer’s Finger................................................. Page: 74 4. Aiding and Abetting..................................................................... Page: 76 a. Law.................................................................................... Page: 76 i. “Aiding”................................................................. Page: 79 ii. “Abetting”.............................................................. Page: 79 b.

Intention with Respect to a Charge of Murder............... Page: 80 c. Aiding in Meyer’s Murder................................................ Page: 82 C. The Courtepatte Offences....................................................................... Page: 83 1. Courtepatte’s Murder - Briscoe as a Principal Offender......... Page: 83 2. Kidnapping - Briscoe as a Principal Offender.......................... Page: 84 a. Law.................................................................................... Page: 84 b. Did Briscoe Kidnap Courtepatte?................................. Page: 84 3.

Aggravated Sexual Assault - Briscoe as a Primary Offender. Page: 85 4. Aiding............................................................................................ Page: 85 a. Kidnapping and Murder.................................................. Page: 86 b. Aiding................................................................................ Page: 95 c. The Sexual Assault.......................................................... Page: 99 VII. Conclusion.......................................................................................................... Page: 104 A.

Meyer Murder......................................................................................... Page: 104 B. Courtepatte Murder............................................................................... Page: 104

I. Introduction [ 1 ] On May 31, 2010, the Crown charged Michael Erin Briscoe (“Briscoe”) by direct indictment with four offences under the Criminal Code , RSC 1985, c C-46 [“ Criminal Code ”]: 1. first degree murder of Ellie-May Meyer (“Meyer”), pursuant to Criminal Code s 235(1); 2. first degree murder of Nina Louise Courtepatte (“Courtepatte”), pursuant to Criminal Code s 235(1); 3. aggravated sexual assault of Courtepatte, pursuant to Criminal Code s 273(2)(b); and 4. kidnapping of Courtepatte, pursuant to Criminal Code s 279. A.

Previous and Related Proceedings [ 2 ] This is not the first trial that relates to these offences. Various participants in the Courtepatte murder have already been tried and sentenced. Michael Williams (“Williams”) pleaded guilty to first degree murder: R v MBW , 2007 ABPC 292 , affirmed 2008 ABCA 316 , 417 AR 325. Stephanie Rosa Bird (“Bird”) was originally convicted of kidnapping, sexual assault, and manslaughter: R v SRB , 2007 ABQB 289 , 416 AR 223. On appeal to the Supreme Court of Canada, the court changed Bird’s manslaughter conviction to first degree murder: R v Bird , 2009 SCC 60 , [2009] 3 SCR 63.

Joseph Laboucan (“Laboucan”) was convicted of kidnapping, aggravated sexual assault, and first degree murder: R v Laboucan , 2010 SCC 12 , [2010] 1 SCR 397.

A young person, DDT, was found guilty of aggravated sexual assault and second degree murder: R v DDT , 2008 ABQB 533 , 78 WCB (2d) 743, affirmed 2010 ABCA 365 , leave refused [2011] SCCA No 50. [ 3 ] Laboucan was subsequently convicted of the first degree murder of Meyer: R v Laboucan (26 September 2011), Edmonton, 090363110Q1, Alta QB. [ 4 ] In 2007, Briscoe was tried and acquitted in relation to the charges involving Courtepatte: R v Briscoe , 2007 ABQB 196 , 413 AR 53. The Supreme Court of Canada later ordered a new trial: R v Briscoe , 2010 SCC 13 , [2010] 1 SCR 411.

Briscoe’s 2007 trial did not involve Briscoe’s alleged participation in Meyer’s murder. B. Pre-Trial Applications [ 5 ] This Court heard two pre-trial applications. One involved Briscoe’s application pursuant to Criminal Code ss 589 and 591(3), to have this Court sever the non-murder aggravated sexual assault and kidnapping charges from the murder charges, and sever the two murder charges.

This Court denied Briscoe’s application and held that all four charges would be tried together: R v Briscoe , 2011 ABQB 160 . [ 6 ] In the second application, Briscoe sought an order from this Court excluding from his trial certain statements concerning the Courtepatte murder that he made to members of the Royal Canadian Mounted Police (“RCMP”) during interviews on April 11, 2005, and on April 12, 2005. Briscoe argued that the RCMP officers breached his rights under

section 10(

b) of the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the “ Charter ”]. This Court held that everything Briscoe said to Cst. Kelly Brophy or to Cst. Patrick Waldorf would be admissible in his trial: R v Briscoe , 2012 ABQB 111 .

[ 7 ] Briscoe made other “cell plant” statements that this Court considered during the second application. This Court held that while the “cell plant” statements that Briscoe made were not inadmissible, it would conduct a more thorough review of their admissibility if the Crown chose to use them during Briscoe’s trial. That did not happen. C.

Overview and General Issues [ 8 ] Briscoe’s trial on these charges began on February 21, 2012, and extended over a period of 16 days. [ 9 ] At the beginning of the trial, counsel jointly provided this Court with an Agreed Statement of Facts dated February 8, 2012 (the “Agreed Statement”). Briscoe, his counsel and the Crown’s counsel had all signed the Agreed Statement. [ 10 ] Briscoe and his counsel agreed that the police officers properly prepared, obtained and executed all warrants in the Meyer and Courtepatte investigations.

This included the RCMP or other police officers from other investigating agencies who acted under the RCMP’s direction. [ 11 ] The events involving Meyer and Courtepatte occurred on separate days. This Court will review evidence that relates to each victim separately. Where a witness has testified in relation to both, that review will include that witness’s testimony in relation to the particular victim.

This is not to imply these murders are necessarily independent, as they are temporally related and share certain participants. [ 12 ] It is important, at this stage, to outline the broad and basic issues that will provide a context for this Court’s review and evaluation of witnesses’ testimony.

They are as follows: 1. whether Briscoe was aware of, or present at, Meyer’s murder; 2. if he was present at Meyer’s murder, whether Briscoe was a principal offender, or a party to Meyer’s murder; 3. whether Briscoe was a principal offender, or a party to Courtepatte’s kidnapping; 4. whether Briscoe was a principal offender, or a party to a sexual assault committed on Courtepatte; and 5. whether Briscoe was a principal offender, or a party to Courtepatte’s murder. Each of these general issues spawn separate sub-issues that this Court will discuss within the general issues. II. Meyer A. Agreed Statement

[ 13 ] Meyer was born October 23, 1971. She was 33 years old at the time of her death. She was beaten and her death was a result of blunt force trauma to her head. This beating occurred on or about April 1, 2005, near Fort Saskatchewan, Alberta. Meyer’s body was discovered on May 6, 2005, in a farmer’s field approximately 300 metres east of Highway 21 and 4.5 kilometres north of Highway 16 in Alberta. The parties admit the identification of Meyer’s body. [ 14 ] As previously noted Laboucan was convicted as a principal participant in Meyer’s beating and death. B.

Witness Testimony [ 15 ] Two witnesses, Bradley Schroter and Evanelina Meyer, did not appear in court. The transcripts of their testimony at Laboucan’s preliminary hearing involving Meyer was admitted as part of the Agreed Statement. [ 16 ] The following provides a

summary of the viva voce evidence that each witness provided to this Court. 1. Evalina Meyer (from the Agreed Statement) [ 17 ] Evalina Meyer (“Evalina”) is Meyer’s biological mother. She provided the court with Meyer’s background, such as her date and place of birth. [ 18 ] Meyer would keep in touch with her family through telephone calls. Although her telephone calls were sporadic, she did not miss special occasions, such as Mother’s Day, Father’s Day, birthdays and anniversaries. When she did call, she would call regularly, but when she did not, she would go for weeks and months before starting again.

About one month before she died, Meyer was calling Evalina regularly. Meyer had just been released from the hospital which, Evalina learned during the trial, was a consequence of Meyer having had a baby. Meyer told Evalina that she had just been released from the hospital, that she really missed her family, and wished they were there. [ 19 ] Meyer had a hereditary disease, cytosis. This resulted in Meyer having her spleen and gallbladder removed when she was about 12 years of age, which left a scar across her abdomen. [ 20 ] Evalina was aware that Meyer had a boyfriend named “Troy,” who was Troy Boyko (“Boyko”).

Boyko testified in these proceedings. Evalina had spoken to Boyko on the telephone and Meyer’s last calls were from Boyko’s home. Evalina said that Meyer was happy in her relationship with Boyko. [ 21 ] Evalina knew that Meyer was a prostitute. She was also aware that Meyer struggled with drug addiction. 2. Kelley Laura Clark [ 22 ] During 2003 and 2005, Kelley Laura Clark (“Clark”) was a social worker employed by Adoption Options. Adoption Options is a licensed adoption agency that works with expectant mothers who consider placing their children for adoption, and prospective parents who wish to adopt.

Clark also provided counselling to the expectant mother, both pre-adoption and post-adoption. Clark had previously worked as a child welfare worker. [ 23 ] Clark first met Meyer after the birth of Meyer’s first child in November of 2003. A social worker at the hospital contacted Clark. Meyer wanted to place her child for adoption, as she did not feel that her lifestyle of drug use and prostitution was conducive to raising a child. Meyer thought that adoption be in the child’s best interests, although it upset her. Clark helped Meyer through the process.

Meyer was cooperative through the process and followed through with it.

[ 24 ] Clark continued to have contact with Meyer, although that contact tended to be sporadic. They did, however, have a good relationship. Meyer had an ongoing interest in her children. [ 25 ] Meyer contacted Clark in January 2005. Meyer was pregnant again and wanted to arrange to have that child adopted. Her living situation had not changed. She had the baby on February 28, 2005, and the adoption followed shortly after that. [ 26 ] The family who adopted Meyer’s child provided Adoption Options with an announcement thanking Meyer for placing her baby with them.

Clark tried to contact Meyer, although she did not know how to contact her. She wanted to give Meyer a copy of the announcement. They spoke on the telephone and had arranged for a meeting on April 4, 2005. Meyer was pleased that someone respected her enough to make that announcement. Meyer, however, did not attend her meeting with Clark. This did not surprise Clark, as Meyer’s failing to attend meetings was not unusual. Clark never saw Meyer again. 3.

Other Witnesses [ 27 ] The Crown’s counsel presented several witnesses who testified as to Meyer’s personal life and lifestyle, including Boyko, who was Meyer’s boyfriend at the time of her death. No useful purpose would be served in providing the details of the witnesses or their testimony. Their testimony was essentially consistent. [ 28 ] Their testimony can be summarized as follows. Meyer was a prostitute who worked in Edmonton. She was also a crack cocaine addict. She used her prostitution earnings to support her drug addiction. One of the witnesses had seen Meyer within a few weeks before her death.

The others had seen her the day before she died; one within hours of her death. 4. Bradley Schroter (from the Agreed Statement) [ 29 ] Bradley Schroter (“Schroter”) is the farmer who discovered Meyer’s body while cultivating on May 6, 2005. At that point the land he was cultivating was a stubble field, which he was preparing to seed with canola. This required Schroter “disc” the field and work the stubble into the soil. At around 11:00 p.m., he saw something off to his side, with the tractor headlights. He stopped. Because the tractor windows were dirty, he got out of his tractor and stood on a tire.

He still could not see, so he grabbed a flashlight and “saw what was a body with grey sweat pants and deterioration.” He returned to his tractor, and called the RCMP. [ 30 ] Schroter drove his tractor to the edge of Highway 21 to await the police. When they arrived, Schroter entered the police vehicle and directed the police officer to where he saw Meyer’s body. Schroter did not touch Meyer’s body or anything on her body. [ 31 ] Schroter had not yet “disced” the portion of the field on which he found Meyer’s body.

In other words, it was still stubble. [ 32 ] Schroter identified on maps and aerial photographs the location of Meyer’s body and nearby landmarks including Highway 21, Highway 16, railway tracks, and the entry location to the field from Highway 21. Meyer’s body was about 700 feet (about 213 metres) to 800 feet (about 244 metres) east of Highway 21. Schroter testified that the place where he found Meyer’s body was not visible from Highway 21, because of a berm between her body and Highway 21. 5. Staff Sgt. Gary Rhodes [ 33 ] Staff Sgt.

Rhodes was a forensic identification specialist with the RCMP during the investigation into Meyer’s murder. As a forensic identification specialist, Staff Sgt. Rhodes attended the crime scene, collected and processed the exhibits, took photographs, and searched for and preserved latent fingerprints.

[ 34 ] He was appointed lead investigator in Meyer’s murder on May 7, 2005, and attended the location where Meyer’s body was found at about 8:00 a.m. on that day. He made general observations, such as the location of Meyer’s body, the weather, and the condition of Meyer’s body, including its degree of decomposition. He took photographs of the scene, which included Meyer’s body, and made a sketch of the scene. [ 35 ] Staff Sgt. Rhodes illustrated the location of Meyer’s body using maps, a digital video disc (“DVD”) of the area, and aerial and surface level photographs.

He described the murder location as a “stubble field.” [ 36 ] Staff Sgt. Rhodes and his team conducted a perimeter search for evidence in an area 20 metres around Meyer’s body. All the evidence retrieved was within that area, except a Nutri-Grain cereal bar wrapper found 150 metres from Meyer’s body. [ 37 ] Meyer was found wearing a t-shirt and sweat pants. Her feet were bare. Two golf shoes and two socks were found on the stubble field. Meyer’s body had undergone significant deterioration. In preparation “for seizure,” Staff Sgt.

Rhodes placed brown paper bags over Meyer’s head, hands and feet to protect any evidence located in or on those areas. He taped shut the brown paper bags. [ 38 ] On May 10, 2005, Staff Sgt. Rhodes met with the Medical Examiner, Dr. Bernard Bannach, at the autopsy suite. Dr. Bannach removed the paper bags from Meyer’s feet and head at that point. During that examination Dr. Bannach removed Meyer’s right thumb in an attempt to obtain a positive identification of Meyer through a fingerprint. This procedure was successful, and Staff Sgt. Rhodes confirmed the deceased was, indeed, Meyers. 6. Cst.

Jason William Pertson [ 39 ] Cst. Pertson is a member of the RCMP and was, at the time of the Meyer murder, stationed at the Strathcona RCMP detachment. He became the exhibit custodian at the onset of the investigation into Meyer’s murder. [ 40 ] As the exhibit custodian, Cst. Pertson was responsible for the handling, collecting, and seizing of exhibits. He was also requested and made arrangements to have the exhibits sent to various laboratories where other experts would conduct analyses and processes on those exhibits.

In the Meyer murder investigation the laboratories included a forensic laboratory for DNA, blood typing and blood testing and analysis, a toxicology laboratory, and a forensic laboratory for textile analysis. Cst. Pertson then received the reports from the various laboratories. [ 41 ] On May 7, 2005, Cst. Pertson and Corporal Hrankowski arrived at the location where Meyer’s body was found. Cst. Pertson collected and numbered the exhibits. He also attended the autopsy on May 10, 2005, and collected additional exhibits. 7. Dr. Bernard Gerhard Bannach [ 42 ] Dr.

Bannach was the Assistant Chief Medical Examiner who performed the autopsy on Meyer’s body on May 9, 2005. This Court qualified him as an expert in forensic pathology. [ 43 ] His autopsy methodology is to make notes on diagrams of a human body and, after completion of the procedure, he would dictate a report using those notes. That dictated report would be his autopsy report. His report on the Meyer autopsy was filed as an exhibit in these proceedings. [ 44 ] Dr. Bannach would conduct an external examination of the body, then an internal examination.

Meyer’s body arrived wearing the same clothing as when she was discovered, a t-shirt and sweat pants, but the feet were bare. [ 45 ] With respect to Meyer’s body Dr. Bannach noted significant post-mortem decomposition. Meyer’s body had been in

Schroter’s field for some time. Dr. Bannach reviewed 33 photographs of Meyer’s body with this Court. In particular, he noted the following: (

a) the absence of the “pinky” finger on Meyer’s left hand, from the last joint (the joint closest to the end of the finger), along with tissue around the middle bone. The wounded surface had “ragged margins,” which meant that the missing portion was not sliced off cleanly. It had been removed with more of a “crushing, twisting” action. Dr. Bannach thought it might have been chewed off by an animal, although there was no other evidence of animal scavenging on any other part of Meyer’s body; (

b) there was dirt and straw on Meyer’s feet; (

c) there were multiple injuries on Meyer’s head, which involved splits of the head skin. These injuries were concentrated on the left and back side of the head; (

d) Meyer’s skull had been fractured, with a large hole in the back left side and additional bone injuries that extended forward to the front of the face, nose, and the bottom of the right eye socket. Meyer’s upper jaw was dislocated, which Dr. Bannach referred to as a “Le Fort fracture,” which resulted in the upper jaw “floating”; (

e) there was some bruising on Meyer’s legs; and (

f) Meyer had no natural diseases that would have caused or contributed to her death. [ 46 ] It was Dr. Bannach’s opinion that Meyer died as a result of her head injuries, or massive cranial trauma. With those injuries, she could not have survived. [ 47 ] The injuries on the back, left side of Meyer’s head were impact injuries that were, in Dr. Bannach’s opinion, the result of blunt force being applied to her head. The tissue on Meyer’s head was split. There were, as well, impact injuries on the top of Meyer’s head. Some of the wounds on Meyer’s head were “chop wounds,” which Dr.

Bannach described as typical of the impact of the sharp edge of an axe or machete. However, these kinds of injuries could also be produced by more blunt objects, provided the victim was hit with the object moving at a relatively high velocity. [ 48 ] Dr. Bannach could not say whether there was more than one weapon used on Meyer. Nor could he tell this Court the length of the object that was used to strike Meyer. [ 49 ] Dr. Bannach took various samples from Meyer’s body, and passed those to the RCMP officer who was present (Cst.

Pertson). [ 50 ] Based on various factors, including weather reports that Environment Canada had provided, Dr. Bannach opined that Meyer’s dead body had been in the field for weeks, possibly a month, possibly longer. [ 51 ] Because of the decomposition of Meyer’s body, Dr. Bannach was unable to extract fluids, such as blood, urine or vitreous humour from the eye, that would allow a toxicologist to determine whether Meyer had alcohol in her blood. However, he was able to provide the toxicologist with liver tissue. The toxicologist report that Dr.

Graham Jones, Chief Toxicologist for Alberta, prepared, indicated a presence of a by-product of cocaine metabolism known as benzolectamine. Dr. Bannach opined that Meyer had recently consumed cocaine before her death, but could not say how long before.

8. Stephanie Rosa Bird [ 52 ] Bird acknowledged her presence during Meyer’s murder. She was a participant in the subsequent murder of Courtepatte. She testified on the events that surrounded both murders. a. General Circumstances [ 53 ] During March of 2005, Bird was residing with Briscoe in the Windmill Motel, which is located in Edmonton (the “Motel”). She dock-identified Briscoe. Briscoe and Bird were in a boyfriend/girlfriend relationship, which ended when they were arrested.

During their relationship, Briscoe did not trust Bird. [ 54 ] Bird had known Laboucan for about one year before the Meyer murder and she had known Briscoe for about six months. She and Laboucan were previously in a boyfriend/girlfriend relationship for a short time; about one week. She re-met Laboucan in downtown Edmonton when she and Briscoe were crossing the street. Laboucan asked her if he could stay with them. He would pay them $1000 from money he would receive in the settlement of a back injury he had suffered. Bird and Briscoe agreed. [ 55 ] She owned a vehicle that her uncle had bought for her.

Briscoe, for the most part, drove that vehicle. It was greyish-blue in colour and was the primary means of transportation for her and Briscoe. b. The Meyer Murder [ 56 ] Bird testified that Meyer’s murder had happened a couple of days before Courtepatte’s murder. She, Briscoe and Laboucan were present at Meyer’s murder. On the night that Meyer was murdered, Laboucan asked Briscoe and Bird whether they would drive around with him, because he wanted to have sex with somebody. The group drove around Edmonton, including the 118 Avenue area. They found someone in a back alley.

Laboucan approached that person and she entered the car. They drove out of town. Bird is not sure where they went. At some point, Briscoe stopped the vehicle. Bird and Briscoe exited the car. They stayed outside of the car for about 15 minutes. It was dark outside. Laboucan exited the car. Briscoe and Bird returned to the car and they drove the woman back to the woman’s home. [ 57 ] Laboucan then indicated that he wanted to have sex with someone else. They returned to the 118 Avenue area of Edmonton where they found another woman, who was “chubby” with “brown hair.” Bird did not know her name.

Laboucan approached this woman and she entered the car. The seating arrangement was that Briscoe was driving, Bird was in the front passenger seat, and Laboucan and the woman were in the back seat. [ 58 ] They drove out of town on the Yellowhead Highway. Briscoe was driving. No one was giving Briscoe directions. They drove on a dirt road and stopped in a field. Again, Briscoe and Bird exited the car. Bird saw movement in the car. Then, Laboucan and the woman exited the car and, as Bird says, “we went for a walk.” Bird was leading the way, with Laboucan, Briscoe and the woman behind her.

Bird does not know why they were going for a walk. Bird then remembers Laboucan, Briscoe and the woman running past her. She heard nothing before this. She next saw Briscoe and Laboucan standing over the woman, who was on the ground, with Briscoe’s and Laboucan’s arms swinging up and down, in a chopping motion. Laboucan and Briscoe returned to the car. [ 59 ] Bird then walked over to the woman.

There was a lot of blood on the woman’s head and she was making “gurgling sounds.” Bird reports that the woman spoke saying, “She told me that she wouldn't tell anyone, that she would go out to the road and get somebody to pick her up and tell them that she fell.” Laboucan and Briscoe returned, and told Bird to go to the car. She did not see or hear what Laboucan and Briscoe were doing. Laboucan and Briscoe then returned to the car and Laboucan said something to Bird that she could not remember. The three individuals got into the car and drove away.

Bird could remember very little of what happened after they returned to the City. c. Post Conviction Events

[ 60 ] Following her conviction in 2007 for manslaughter, which the Supreme Court of Canada eventually changed to first degree murder, Bird was housed at various correctional facilities. Bird became the subject of a police inquiry in relation to Meyer’s murder, once Laboucan was linked to Meyer through forensic evidence (DNA). Over the next several years Bird made a number of statements in relation to Meyer’s murder. This Court will review those statements in chronological order. Notably, Bird’s testimony at trial in relation to her earlier statements concerning Meyer was very evasive.

For example, Bird denied having any memory of prior conversations, particularly her recorded telephone conversations. [ 61 ] While in those facilities, Bird made telephone calls to her mentor, foster father (who was also her uncle), a friend and a former boyfriend. Those telephone calls were recorded and played to this Court. In all those telephone calls, Bird denied knowing anything about Meyer’s murder and denied ever having seen or talked to Meyer. [ 62 ] Before the recordings were played to ths Court, Bird denied even knowing her mentor or her friend.

She acknowledged the name of her foster father. [ 63 ] On October 9, 2007, while she was incarcerated, Bird met with Cpl. Respet, an RCMP officer, concerning Meyer’s death. Cpl. Respet advised Bird that one reason for his meeting with her was to advise her that the RCMP had found Laboucan’s DNA on Meyer’s body. Cpl. Respet also told Bird that she was a suspect in Meyer’s murder, partly because of her association with Laboucan, but also due to her involvement in the Courtepatte murder. During this interview, Cpl.

Respet told Bird following details of the Meyer murder investigation: • Meyer worked on 118 th Avenue [in Edmonton], • the RCMP had found Laboucan’s DNA in Meyer’s body, and • the RCMP had found Meyer’s body in a field. [4] After her meeting with Cpl. Respet, Bird contacted, by telephone, the mentor who was assigned to her while she was at the Edmonton Young Offender Centre. This telephone conversation, along with all telephone calls that Bird made or received, was recorded. [5] Bird testified that she did not remember the mentor’s name, or that she had made a telephone call to the mentor.

When the audiotape of her conversation with the mentor was played in court, she did identify her own voice. During this conversation, Bird denied knowing anything about Meyer’s murder, or ever having seen Meyer. [6] Bird made a telephone call on October 23, 2007, to her foster father. During this conversation, the audiotape of which was played in court, Bird denied ever having seen Meyer. [7] Bird had a further meeting with Cpl. Respet on December 11, 2007. During this meeting, Cpl. Respet told Bird that Meyer’s body was found in a field close to Fort Saskatchewan and Sherwood Park, which are both in Alberta.

Cpl. Respet confirmed, once again, that Laboucan’s DNA was on Meyer’s body. [8] On December 15, 2007, Bird had a telephone conversation with a person who, from the telephone conversation this Court heard, was either a close friend or relative of Bird. During this conversation, Bird denied knowing or having seen Meyer. [9] Another denial of knowledge or involvement in the Meyer murder was recorded in a February 10, 2008 telephone conversation that Bird had with her ex-boyfriend. At one point during this conversation Bird said:

And then he [Laboucan] put my name in there and he put Mike - - I think it was Mike Williams or Michael Briscoe in there, and then he put [DDT’s] name in there, too. And I don’t know even know the chick. I’ve never seen this chick in my life, and fuckin’ I don’t even know what the hell they’re talking about. Trial Transcript, March 1, 2012, p 49, ll 14-18. [10] On November 20, 2008, the RCMP arrested Bird for Meyer’s murder. During his interview with Bird, Cpl. Respet again referred several times to the fact that Laboucan picked Meyer up from 118 Avenue in Edmonton. As well, Cpl.

Respet mentioned many times the dates March 31, 2005, and April 1, 2005, and showed Bird videotapes of other witnesses’ statements in which they say that they last saw Meyer on those dates. [11] Cpl. Respet had shown Bird a photograph of Meyer. Recall that Bird had described to this Court that Meyer was “chubby” and had “brown hair.” Bird confirmed that the picture Cpl. Respet had shown her was of a woman who was a little overweight and had brown hair. In fact, Cpl. Respet had indicated to Bird that Meyer was a little bit overweight. [12] Cpl.

Respet showed Bird photographs of the place where Meyer’s body was found, including a satellite picture of the area, and an aerial photograph of the area. These photographs showed the dirt road that enters into the field where Schroter found Meyer’s body. [13] Cpl. Respet also discussed with Bird during the interview on November 20, 2008, the nature of Meyer’s injuries, viz. , that they were about her head, and that she had been beaten. [14] Throughout this interview, Bird did not say to Cpl. Respet that she was just a witness. In fact, she denied any knowledge of Meyer’s murder. [15] On February 11, 2010, a Cpl.

Morton advised Bird that she was going to be charged with Meyer’s murder. Bird did not say, at that time, that she was simply a witness. [16] During cross-examination, Bird also testified that she heard DDT say during Bird’s trial, that Courtepatte was making “gurgling sounds” as she was being murdered. Bird also confirmed that this description is something that she will remember. [17] Bird denied that she made up the story she told to this Court concerning Meyer’s murder, by taking “snippets” of the information that Cpl.

Respet had provided to her and concocting a story that made her a mere witness, with Laboucan and Briscoe committing the murder. She also denied that she made up this story to avoid prosecution. 9. Michael Erin Briscoe a. General Observations [18] Briscoe testified in his own defence. He did so with respect to Meyer’s murder and Courtepatte’s murder. This Court has a few preliminary observations concerning Briscoe’s testimony. As a general comment, Briscoe’s testimony was difficult to follow. His counsel did an admirable job of attempting to keep Briscoe on track and to clarify potentially uncertain points.

Nonetheless, some of Briscoe’s testimony was confusing, and many times he contradicted himself. [19] Briscoe confirmed that his short-term memory was better in 2005, than it is now. He still, however, remembers the “basic story.” The statements he gave to the RCMP, he says, were given out of “fear, panic and hopelessness,” but he was “trying to be truthful.”

[20] Briscoe has an extensive criminal history. He received custodial sentences for many of his crimes. The majority of his prior offences involved breaking and entering, theft, driving offences, and failures to appear. He has also been convicted of the unlawful use of a credit card and assault. b. Testimony on General Matters [21] Briscoe was a truck driver, although his truck driving career seemed to be sporadic. As well, he worked for the Labour Force, which appears to provide short-term jobs for people. Again, his employment through Labour Force appeared to be sporadic.

He had difficulty with his jobs, because he had no transportation. Thus, he bought a car. [22] His purchase of the car was not entirely clear and he gave various versions of the transaction. First, he said that it was Bird’s car. Then, he said it was his car that he bought with his own money. Then, he said that he bought it using a loan from Bird’s foster father. He said he bought it from someone living at the home of Bird’s foster father. He said he paid $600 for the car. Then, he said he paid $800 for the car, with $100 cash and a loan from Bird’s foster father.

Ultimately, the Crown produced a bill of sale that shows that Briscoe bought the car from a third party for $400. Briscoe did not dispute the accuracy of that document. [23] He said that he was the person who drove the car. Then, he said that Bird drove the car a few times, although he had to teach her how to drive a car with a standard transmission. He also said that Laboucan drove the “about three or four days maybe before the girl was expired.” [24] Part of the reason Briscoe was not able to get to work was because he did not want to leave Bird alone. He was trying to look after, and protect, her.

She was recovering from her drug addiction (and he from his), and he was concerned that other men, particularly Laboucan, might attack her, or even kill her. In April of 2005, Briscoe and Bird had been in a relationship for about three months. Briscoe described their relationship as one of friendship, as he had no other choice because without him, Bird would be dead. They were roommates and had lived together, first in an apartment on the west side of Edmonton, and later in the Motel. Briscoe checked into the Motel on March 24, 2005.

When the Crown’s counsel asked Briscoe whether he and Bird had a sexual relationship Briscoe said, with a smirk on his face, that he could not remember. [25] Briscoe knew Laboucan for a couple of weeks before Meyer was murdered. Briscoe was introduced to Laboucan through Bird. Briscoe knew Laboucan and Bird had gone out together at some point. Laboucan told Briscoe that he had come to Edmonton to obtain settlement money for a back injury. Briscoe thought he met Laboucan at the West Edmonton Mall (the “Mall”), although he might have met him at the City Centre Mall in Edmonton.

Briscoe was familiar with Laboucan’s nickname, “Snowman.” [26] Laboucan lived in the Motel with Briscoe and Bird in the latter part of March 2005, and early April 2005. Briscoe did not trust Laboucan with Bird. Laboucan, according to Briscoe, was constantly flirting with Bird. Bird did not like this. Laboucan was persistent. Briscoe did not want to leave Laboucan alone with Bird. Occasionally, Laboucan and Bird were alone together, such as in the Mall. [27] Briscoe kept tools in the trunk of the car. They were his father’s tools, because Briscoe’s own tools were at a pawn shop.

The tools in the trunk of his car consisted of wrenches, hammers and other things. He described the wrenches as having a hole or octagon on one end, and an open end on the other. He had a number of hammers, including ball-peen hammers and a rubber mallet. Briscoe denied that the collection of tools included a sledge hammer, but he did have a large hammer with a wooden handle, and a six-inch head. [28] For Briscoe, food and money were both in short supply. Briscoe reports he did not receive his last cheque from the Labour Force. At the time of the murders all he had was $10 that his father had given him.

Several times throughout his cross-examination, Briscoe said that he did not eat because he had no money. For example, when the Crown had referred to the possibility of there being any pop in the refrigerator at the Motel, Briscoe said, “I just consumed as fast as I could. I was pretty starving.” The only things he had to eat were in his refrigerator and freezer, where he kept bread and wieners. He said that he would only eat once a day, with food mostly from the Food Bank. c. Testimony on Meyer ’s Murder

[29] Briscoe denied having anything to do with Meyer’s murder. Specifically, he denied: (

a) ever being in a field with Laboucan and Bird when another woman was attacked and hit (except Courtepatte); (

b) ever taking part, or being present, with Laboucan in a beating of another woman (except Courtepatte); (

c) ever driving with Laboucan to pick up a prostitute on 118 th Avenue in Edmonton; (

d) helping anyone to kill Meyer; or (

e) killing Meyer. C. Physical and Forensic Evidence [30] Meyer was found wearing a Bronco’s t-shirt and grey sweat pants. Her feet were bare. [31] The RCMP located a number of objects near where Meyer’s body was found. The only ones of relevance were two matching golf shoes, and two white socks. [32] Forensic DNA investigation of Meyer and her clothing detected Laboucan’s DNA. A sample of his DNA was recovered from Meyer’s vaginal area, and from her sweat pants. Briscoe’s DNA was not detected as part of that investigation. III. Courtepatte A.

Agreed Statement [33] Courtepatte was 13 years old at the time of her murder. She was killed on or about April 3, 2005, near Stony Plain, Alberta. She died as a result of blunt force trauma to her head that she received as a result of being beaten. [34] As previously noted, other persons have been convicted of or admitted to criminal misconduct in relation to Courtepatte’s death: • Laboucan was a principal participant in Courtepatte’s murder. For his role in her death he was found guilty of first degree murder, aggravated sexual assault and kidnapping.

The court entered a conviction for first degree murder and conditionally stayed the aggravated sexual assault and kidnapping charges. • Laboucan had non-consensual sexual intercourse with Courtepatte before the commission of her homicide.

• Laboucan planned Courtepatte’s killing and had sufficient time to deliberate on that plan before taking

part in her eventual death. • Williams was a party to Courtepatte’s beating, and pleaded guilty to first degree murder for his role in her death. • Williams had non-consensual sexual intercourse with Courtepatte before the commission of her homicide. • Bird was a party to Courtepatte’s beating, and was convicted of first degree murder, kidnapping and aggravated sexual assault for her role in the Courtepatte’s homicide. • DDT was a party to Courtepatte’s beating, and was convicted of second degree murder and aggravated sexual assault for her role in Courtepatte’s homicide. [8] Courtepatte’s body was found on April 4, 2005, on the then number four fairway of the Edmonton Springs Golf Resort near the Stony Plain, Alberta (the “Golf Resort”). [9] The identification and continuity of Courtepatte’s body was admitted.

B. Testimony [10] Several witnesses provided this Court with viva voce evidence in relation to Courtepatte’s murder. The Agreed Statement included transcripts of evidence that four witnesses provided at Briscoe’s first trial before Burrows J; Mike Kachuk, Sorin Andronic, Maria Vraciu and Cst. Sheldon Eric Hynes. 1. Sheena Marie Audrey Arnault [11] Sheena Marie Audrey Arnault (“Arnault”) knew Bird, because Bird had been raised by Arnault’s great aunt and uncle. Arnault called Bird her “cousin.” [12] Arnault had seen Bird at some time before she heard about Courtepatte’s murder on the news.

Though unsure of the exact date, Arnault, by chance, encountered Bird in the City Centre Mall in downtown Edmonton. Bird was with two of her friends; her boyfriend “Mike” and another male individual. Arnault dock-identified Briscoe as “Mike.” Bird indicated to Arnault that her other friend’s name was “Joe.” [13] Briscoe does not remember meeting Arnault. 2. Sorin Andronic (from the Agreed Statement) [14] In April 2005, Sorin Andronic (“Andronic”) was the co-owner of the Motel, and he continues to manage that business.

The other owner is Maria Vraciu, his wife, another witness in these proceedings. [15] Briscoe rented a room in the Motel towards the end of March and into April of 2005. Andronic dock-identified Briscoe during Briscoe’s trial before Burrows J.

[16] Andronic had met Briscoe a couple of times while Briscoe was living in the Motel. One time he saw a girl enter Briscoe’s room. When asked, Briscoe identified the girl as his girlfriend. It was the Motel’s policy that only one person was permitted to stay in the room, as it was a “bachelor room.” [17] Andronic had also seen Briscoe use a Ford Tempo and a van. [18] Andronic was the one who directed the police to Briscoe’s room on the day that the police arrested him. 3. Maria Vraciu (from the Agreed Statement) [19] Maria Vraciu (“Vraciu”) was the other co-owner of the Motel.

She also dock-identified Briscoe during Briscoe’s trial before Burrows J. [20] Vraciu testified that Briscoe had rented the room in the Motel for three weeks, starting on March 24, 2005. Briscoe had pre- paid his rent. She confirmed that the Motel rented rooms for single people only; not couples.

As well, the Motel does not rent to persons under the age of 25 years. [21] Vraciu also saw Briscoe’s “girlfriend.” Vraciu described Briscoe’s girlfriend as “heavy build and native nationality.” Vraciu told Briscoe that if a friend is visiting him, he had to register the visitor with the Motel office, with the visitor’s name and age. Briscoe said he would, but he never did. 4. Mike Kachuk (from the Agreed Statement) [22] Mike Kachuk (“Kachuk”) owned the Golf Resort.

Kachuk identified the location of the Golf Resort, which was not challenged in these proceedings. [23] The Golf Resort had not yet opened for the season when Courtepatte was murdered. The road to the Golf Resort was blocked by a two-rail wooden fence. A person could enter the Golf Resort by crawling through the fence or under it. [24] Kachuk was on the Golf Resort property on the afternoon of April 4, 2005. He was checking the greens and the Golf Resort to see how soon the course could start commercial operations.

He was driving an all-terrain car when, on the fourth fairway next to the one-hundred yard marker, he saw what he thought was a wrap that covered lumber. He saw this from about 100 yards away. He walked up to take a closer look and saw that it was a body. He returned to the clubhouse to call the police. It took the police about 20 minutes to arrive. Kachuk led them to the body. He then returned to the clubhouse. [25] Kachuk described how to get to the fourth fairway, as follows: Well, they’d have to start off at the gate, follow that road to the parking lot, go through the parking lot to the far side.

This is where the driving range starts. Then go on the road. We’ve got a roadway going all the way through here, which is gravel. There’s a garage on the left-hand side. Then they’d make a little turn to the right, get by the bushes, and we are into the future maintenance area and would head up past our two little buildings, and we’ve got some fuel tank. Then they would head south, and there’s an opening in the trees, and they would head west, get on to the new general area that was building more golf course, and then head - - head west over to Number 4 fairway.

Trial Transcript, January 23, 2007, p 434, ll 2-15. [26] Kachuk indicated there was no artificial light in the area where Courtepatte’s body was found. 5. Staff Sgt. Sharon Gina Smith [27] In April of 2005, Staff Sgt. Smith was with the RCMP’s Forensic Identification Unit. This Court qualified Staff Sgt. Smith as an expert in forensic identification, fingerprint and palmprint identification, identification of bloodstains and bodily fluids, and detection, collecting, and preservation of forensic evidence. [28] Staff Sgt. Smith was the primary forensic identification officer in the Courtepatte murder investigation.

Her role was to examine the crime scene, collect forensic evidence, take photographs of the crime scene and write the primary report. She worked closely with the exhibit custodian in this matter, Cst. Curtis Ping. [29] Staff Sgt. Smith arrived at the crime scene on April 4, 2005, at 5:19 p.m. She showed this Court a DVD of the crime scene taken by Cpl. Marsh. This DVD showed Courtepatte’s body and the various exhibits that the RCMP collected at the scene. [30] On April 13, 2005, Staff Sgt.

Smith also performed forensic testing on a 1991 Ford Tempo automobile, which the RCMP secured and placed in the forensic bay at the Edmonton RCMP headquarters. She did what is called a “luminol examination” of the car, which forensic investigators use as a presumptive test to detect trace amounts of blood. A “presumptive test” is a chemical reaction that indicates that blood might be present, but which does not conclusively show the presence of blood.

A laboratory would make that determination. [31] Her luminol examination showed three areas in the car that luminesced; the outer upright left corner of the driver’s seat, the left back corner of driver’s floor mat, and the vertical portion of back seat directly behind the driver’s seat. She marked these areas, photographed them, and cut them out. Cst. Sheldon Hynes seized them. [32] She also obtained 13 fingerprints from the car. Of the ones she could identify, two were from Briscoe, being those located on the exterior of the driver’s door window. The balance belonged to Bird.

There were a number of fingerprints that remain unidentified, which means that they were not the fingerprints of those involved in the Courtepatte murder. The location, lifting, comparison and identification of all fingerprints either from known individuals or from any crime scene is not in issue and Briscoe consented to the Crown’s counsel leading this evidence. [33] In the trunk, Staff Sgt. Smith found a grey suitcase, a tool case, a flashlight, and a socket set. The floor of the trunk was damp to the touch. The particle board underneath was stained and damp. [34] She also presented a videotape that Cpl.

Marsh took of the place where Briscoe and Bird were staying. This was room 30 of the Motel. She instructed Cst. Ping to seize a number of items from the room. [35] Staff Sgt. Smith took photographs of the crime scene, the 1991 Ford Tempo, the room in the Motel and Courtepatte’s body during the autopsy. She reviewed with this Court the photographs of the crime scene and the room in the Motel. In particular, she pointed out the location of the various exhibits that she instructed Cst. Ping to seize. In the room in the Motel, Staff Sgt.

Smith noticed three reddish stains, one on the door, one in the interior of the bathroom and one on the upper part of a refrigerator. She tested these with a hemastick, which provided a presumptive test for blood. As they all resulted in a positive result, she took a swab of the stains and provided these to Cst. Hynes. [36] Staff Sgt. Smith reviewed several maps that showed the Golf Resort and described the maps. In particular, she showed this Court where Courtepatte’s body was found, along with the various exhibits.

[37] During cross-examination, Staff Sgt. Smith confirmed that blood could be transferred from one surface, say, a pair of pants, to another surface, such as the car seat. 6. Cst. Sheldon Eric Hynes [38] Cst. Hynes was the RCMP officer who obtained the search warrant for the Motel, and he attended the Motel on April 12, 2005. He was the Motel’s exhibit custodian who, under Staff Sgt. Smith’s direction, seized, stored, and documented exhibits. In total, Cst. Hynes seized 33 exhibits from the Motel. [39] Cst. Hynes, at counsel’s direction, provided this Court with examples of the exhibits he seized.

One was the car insurance documents for a 1991 Ford Tempo, which showed Briscoe as the insured. As well, there was an Alberta motor vehicle registration card describing the same car, with a license plate number EEH-774. [40] Cst. Hynes also seized Bird’s birth certificate, which showed that she was born in Saskatchewan. Another item was a pill bottle with Bird’s name on it. He also seized female and male clothing from the Motel room. [41] He received swabs from Staff Sgt. Smith.

These were the samples from above the door knob on the exterior of the bathroom door, the bathroom wall, and the top right corner of the refrigerator. Cst. Hynes placed each swab in a container and then he placed the container into an exhibit bag. [42] Cst. Hynes was also involved in the search of the 1991 Ford Tempo on April 13, 2005. He seized 84 exhibits. Certain of these items were given to Staff Sgt. Smith for fingerprint analysis. Cst. Hynes also described some of the exhibits, such as a wood-handled red ice pick measuring about 7.5 inches that he seized from the floor behind the front passenger’s seat.

He also seized an automobile inspection report showing Briscoe as the insured, a medical prescription for Briscoe, and a Telus bill for Bird. [43] As the Courtepatte investigations’s exhibit custodian, Cst. Hynes transferred to Cst. Ping all the exhibits that he collected at the Motel and the car, except the one he provided to Staff Sgt. Smith. Briscoe and his counsel admit the continuity of exhibits. 7. Cst. Curtis Ping [44] Cst. Ping was the exhibit custodian for the Courtepatte murder investigation. He was the person who collected, labelled, processed, and documented exhibits.

He sent the exhibits out for analysis to various laboratories. He attended the crime scene and Courtepatte’s autopsy. Staff Sgt. Smith directed him to seize exhibits. [45] Cst. Ping removed a pair of pliers with blue handles from its exhibit bag and showed them to this Court. He had seized these from the area of the Golf Resort where Courtepatte’s body was found. [46] During cross-examination, Briscoe’s counsel described, and Cst. Ping confirmed, that the blue-handled pliers have a blade- like segment, on the inside portion of the gripping jaws, nearest to the fulcrum, or pivot-point of the pliers.

The other side of that portion is open, so that the pliers could be used as a cutting tool. [47] Cst. Ping testified that the pliers were seized, put in an exhibit bag, placed in a temporary exhibit locker at the Stony Plain RCMP Detachment and then were sent to a laboratory. Before sending them to the laboratory, the RCMP would not have cleaned them, and the steps they took with respect to the pliers before sending them to the laboratory were intended to prevent the pliers from being contaminated.

[48] Cst. Ping also removed two items from their exhibit bag and showed them to this Court. He identified them as “throwing knives.” These were DDT’s knives that the RCMP recovered from a Mall vendor. 8. Dr. Graeme Dowling [49] Dr. Graeme Dowling was the Assistant Chief Medical Examiner who performed the autopsy on Courtepatte’s body. Briscoe’s counsel took no issue with Dr. Dowling’s qualifications as an expert and accepted his report for the truth of its contents. [50] Dr. Dowling performed the autopsy on Courtepatte’s body on April 5, 2005, starting at 9:15 a.m.

He made notes as he performed the autopsy and then prepared a report from those notes. [51] The majority of Courtepatte’s injuries were the result of blunt trauma to her head. She had 15 skin splits or lacerations that Dr. Dowling opined were caused by the impact of a heavy, blunt object that split her skin open. This included an injury to her ear. She sustained those injuries to the right portion of scalp, the back of her scalp, and the right side of her face.

There were a few such injuries to the back of her scalp on the left-hand side. [52] Courtepatte also sustained bruises and scrapes to the right side of her face and around her eyes. She had an open injury on right side of her chin that had some depth to it. That injury, in Dr. Dowling’s opinion, was likely caused by a sharp object, such as a knife. Courtepatte’s lower jaw was broken down the middle. She also had two superficial cuts along the front of her neck. [53] From her neck down, Courtepatte did not suffer many injuries, although there were some non-patterned bruises and scrapes.

There was bruising on the back of her hands. Dr. Dowling opined that this hand bruising could be defensive injuries, although the bruises could have been caused by something else. [54] Dr. Dowling noted a pair of small circular marks on Courtepatte’s skin, just below her collar bone. These were puncture marks surrounded by scrapes or abrasions and bruising. There was no depth to the marks; they were small pin-point type injuries that Dr. Dowling thought might have been caused by a hand-held Taser, although he did not know for certain. [55] Dr.

Dowling noted that a large portion of the right skull area of Courtepatte’s head was extensively fractured. The bone was pushed inwards to what Dr. Dowling referred to as a “depressed skull fracture.” The brain in the depressed area was damaged. Courtepatte was struck several times about the head. It was Dr. Dowling’s opinion that the brain injury was the immediate cause of Courtepatte’s death. In Dr. Dowling’s opinion, the skull damage could not have been made with a fist, but possibly, it was caused by a foot stomp to the head. [56] Courtepatte had no natural diseases that might have caused her death.

Her blood tests showed that she had no alcohol or drugs in her body. She suffered no injuries to her genital or anal areas, either internally or externally. DDT and Briscoe reported that Williams hit Courtepatte in the genital area with a hammer. Dr. Dowling could find no injury to Courtepatte’s genital area or boney injury to the pelvis. He said he would most certainly have found injury had Williams hit Courtepatte with a hammer in that area. He also noted no injury to her stomach, where DDT said that she had placed her foot. [57] In Dr.

Dowling’s opinion, Courtepatte did not appear to suffer any injuries post-mortem. [58] Courtepatte likely could not have survived her head injuries, even had she received immediate medical attention. Dr. Dowling, however, said that he would have to defer to a neurosurgeon, who would be the expert best able to respond to that question. [59] Dr. Dowling collected certain evidence during the autopsy and turned this evidence over to the RCMP’s exhibit custodian (Cst. Ping). These included swabs, hair, fingernail clippings, the results of pubic hair combing, and a vaginal wash.

9. Keisha Ursula Bzdel [60] Keisha Ursula Bzdel (“Bzdel”) knew Courtepatte from the Mall. Bzdel was a “mall rat.” She last saw Courtepatte the day before Courtepatte was murdered. Bzdel saw Courtepatte leaving the Mall with Witness 1. [61] She knew Williams, DDT, Bird and Laboucan. She also knew Williams’ older brother, who had the nickname “Blue.” She thought that Bird and Laboucan were in a boyfriend/girlfriend relationship. [62] She did not know Briscoe. She did see him throughout the day before Courtepatte was murdered in and about the Mall, and in a car outside the Mall.

She dock-identified Briscoe. [63] Bzdel was standing by the car that Briscoe was driving when Laboucan, DDT and Williams invited her to a bush party. She did not want to go, so she refused. She had a bad feeling, because “at that time of year who is going to have a bush party?” [ 64 ] She saw Williams later that night at about 3:00 a.m. at her front door. She described him as being, “disoriented, high, not himself.” She saw “colouration” on his shoes and she believes she saw blood on his shirt. [ 65 ] She saw DDT the next day at the Bruce Campbell Youth Centre. DDT “dragged” Bzdel into a washroom.

While in the washroom, DDT pulled out a knife and she started washing it off. DDT said it had somebody’s blood on it. Bzdel saw a colour on the knife that looked like blood. Other than that, DDT seemed to be herself. 10. Corey Trent Clarke [ 66 ] Corey Trent Clarke (“Clarke”) knew Courtepatte from the Mall. He saw her at the Mall on the night she was murdered. She was with Laboucan, Williams, Bird and DDT. He knew all of those individuals, as they would hang-out at the Mall together. He did not know Briscoe. 11. Jordan Garry Schauenberg [ 67 ] Schauenberg was friends with DDT and Williams.

He met with them at the Mall on April 2, 2005, at the Boys & Girls Club. They then wandered around the Mall. They met up with Laboucan, Briscoe and Bird, who picked them up at the Mall. They began driving around, with Briscoe doing the driving. Schauenberg dock-identified Briscoe. That was the first time Schauenberg had met Briscoe. He had seen Bird previously. [ 68 ] They eventually made it to Galaxyland in the Mall. Williams, DDT, Laboucan and Schauenberg went into Galaxyland. Briscoe and Bird drove off. They all returned to the car that Briscoe was driving.

Schauenberg got back into the car with Briscoe and Bird, while Laboucan, Williams and DDT remained outside having a conversation. He could not hear the conversation. [ 69 ] Laboucan, Williams and DDT got into the car and they started driving to Schauenberg’s sister’s house, where they were going to drop him off. [ 70 ] Schauenberg remembers the car as having a red interior and being messy. He remembers seeing a telephone bill, an earing, and a bunch of knives.

He described the knives as “three sets of gray knives and the three sets that were oil stained.” He described the seating arrangement as, Laboucan in the front passenger seat, Briscoe was driving, Bird was in the back seat behind the driver’s seat, Schauenberg was in the middle of the back seat, and Williams was on Schauenberg’s right with DDT on his lap.

[ 71 ] There were a number of conversations going on. One of them involved what the group was going to do that night. Schauenberg said, “[t]hey were going to cut off people's heads and throw them in the street.” He could not remember who said that, although during cross-examination, he testified that Laboucan said this and the rest of them, being DDT and Williams, agreed.

Schauenberg said that this conversation did not bother him, because “they were just that kind of people that tell stories like that, make up stuff to try and scare people.” [ 72 ] Williams also said they were going to get ‘big blue,’ which was Williams’ aluminum bat. He also said they were going to grab a machete or something, and they needed gas. Schauenberg does not recall Briscoe saying anything. [ 73 ] After he was dropped off, he did not see Briscoe again. He saw DDT the next day. He saw her at the Mall near the bathroom. He testified that she was crying; distraught.

She looked like she was breaking down. [ 74 ] As well, he saw Williams earlier that day at the bus terminal. Williams, according to Schauenberg, looked “normal, just looked like an everyday happy person.” Schauenberg did notice that Williams knuckles were just a little red. Williams told Schauenberg that he had gotten into a fight. As well, Williams showed Schauenberg blood drops on his shoe. 12. Witness 1 [ 75 ] Witness 1 is not identified because this Court imposed a publication ban on her name. In April of 2005, Witness 1 was 15 years old. She had known Courtepatte for about 12 to 18 months.

They went to school together. Witness 1 considered Courtepatte to be her best friend at the time. [ 76 ] Witness 1 and Courtepatte were together through most of April 2, 2005. They told their respective parents that they were going to be sleeping at the other’s home, though their plan was to hang out at another friend’s place. They went to the Mall to see if their friends were there. The Mall was their usual hang-out. They went to the Phase 3 food court in the Mall, as it was near Circuit Circus, a video arcade which had a dancing game they liked to play. [ 77 ] While at the Mall, they ran into Laboucan.

Witness 1 had met Laboucan about one year previously through her ex-boyfriend. She had hung-out with Laboucan occasionally, but they were not close. With Laboucan were Briscoe and Bird. She did not know either Bird or Briscoe at the time. She dock-identified Briscoe. [ 78 ] Laboucan asked Witness 1 and Courtepatte whether they wanted to go to a “bush party.” Courtepatte really wanted to go to this party. Laboucan told them that he, Briscoe and Bird had to drop off a couple of people and they would come back to pick them up. Bird and Briscoe were standing on either side of Laboucan.

Bird said it would be fun; Briscoe said nothing. During cross-examination, Witness 1 was adamant that Briscoe was with Laboucan and Bird at the time they discussed the bush party. On previous occasions, she said it was only Laboucan and Bird who were present and asked her whether she and Courtepatte wanted to go to the party. She agreed that the latter was more accurate. [ 79 ] Laboucan, Briscoe and Bird then left. Witness 1 and Courtepatte just sat in the Mall waiting. They talked about how fun the bush party would be.

They waited for between 45 minutes and one hour. [ 80 ] Laboucan and Bird returned to pick them up. They left the Mall through Entrance 2 and went to a car. All of them got into the car. Witness 1 described the car as having a red interior. Bird said she got the car from her aunt, but she did not have a driver’s license, so Briscoe was driving. Witness 1's friend, DDT, and DDT’s boyfriend, Williams, were already in the car when they arrived. Witness 1 knew DDT from school. Briscoe and Bird were in the front seat, and the others sat in the back seat. [ 81 ] They left the parking lot and drove for about 45 minutes.

Witness 1 did not know where they were going. She did not

remember who was giving directions. Everyone was having a good time and talking about how fun the party would be. Those in the back seat were kissing each other. Witness 1 did not remember Briscoe saying anything; he was just driving. [ 82 ] Throughout the drive Witness 1 believed there was a party. The car eventually stopped at a green fence after driving down a long gravel road. Laboucan said that they had arrived. Everyone in the car exited. They started walking down a path through the trees. Briscoe and Bird stayed behind looking at a map.

Briscoe did not say why he was not coming with the group. [ 83 ] Before the group left the car, Bird and Briscoe went to the trunk of the car. Witness 1 did not know what they were doing. [ 84 ] The group followed Laboucan. The walk took about 10 to 15 minutes. Everyone was quiet. Witness 1 and Courtepatte were talking about how much fun the party was going to be. Witness 1 saw a little shed as they were walking. They walked along a gravel path, then walked through trees and arrived at a dark field.

She described the ground as being “rock hard, ice cold.” They end up in the middle of a dark field. [ 85 ] The group, at that time, consisted of Laboucan, Courtepatte, Williams, DDT and Witness 1. She did not know where Briscoe and Bird were. Laboucan, Witness 1 and Courtepatte started saying that they did not think there was a party. Briscoe and Bird then arrived. Laboucan started talking about killing things and bringing them back to life. Witness 1 said this was “creepy talk” and “cult kind of stuff.” She felt very uncomfortable, as did Courtepatte. Then others started telling these stories.

Briscoe did not say much at all. [ 86 ] About 15 minutes after they had arrived at the field, Bird hit Courtepatte with a wrench on her back or arm saying, “you’re pissing me off.” Courtepatte said, “I don’t know what you’re talking about. What did I do?” Witness 1 described the wrench as being “a big socket wrench” that was about 18 inches long. It had a ratchet on it. She had not seen this wrench before and she did not see any other tools. She does not know what happened to the wrench.

During her initial interviews with the police and previous proceedings involving individual members of the group, Witness 1 had testified that she had seen Bird push Courtepatte. She made no mention of a wrench. During a later interview with the police, she mentioned the wrench. During these proceedings, she testified that she thought Bird had just pushed Courtepatte, but then she saw the wrench. [ 87 ] Witness 1 testified that she began to remember more details as time passed. The wrench was one such detail.

Briscoe’s counsel attributed this recollection as arising from Witness 1’s post-incident dreams and nightmares. Witness 1 was adamant in her testimony concerning the wrench. [ 88 ] After Bird hit her, Courtepatte ran over to Witness 1 and started hugging her. The rest of the group was just standing there. Laboucan and “one of the other guys” grabbed Courtepatte and threw her to the ground and held her there. Witness 1 could not remember which “of the other guys” was helping Laboucan. She was trying to figure out what was going on. She fell to the ground.

Bird was standing beside Witness 1, and Briscoe came up to Witness 1 holding a belt in both hands and raised it to shoulder height about 18 inches apart, and told her that if she screamed “he’s going to have to ...” She was scared. During cross-examination, she confirmed that she did not reveal Briscoe’s threat to her until four days after she gave her first “truthful statement” to the police. It was not part of her original statement. She also confirmed that Briscoe might have said, “If you don’t shut up, you are going to get it.” [ 89 ] Laboucan said he had to do something to Courtepatte. He started raping her.

Courtepatte said, “ow, it hurts.” All the while, DDT was standing there watching. Williams was “waiting for his turn.” Briscoe was standing in front of Witness 1 at that point and then returned to the melee to help hold Courtepatte down on the ground by her arms. During cross-examination, Witness 1 could not say with certainty that Briscoe was holding Courtepatte on the ground. She does not remember how long Laboucan was on top of Courtepatte and she does not know if Williams had “his turn.” The group was quiet during this time. [ 90 ] Bird picked Witness 1 up and took Witness 1 back to the car.

Bird said, “you don’t need to see this.” At that point, Witness 1 felt weak and scared. She was very cold, as she had worn a little sweater and “it was freezing.” Bird and Witness 1 returned to the car, taking the same route that they had taken to get to the field. Witness 1 could not hear anything. Bird gave Witness 1 a cigarette. She felt nauseous and she was scared. [ 91 ] After about 20 minutes, the group returned to the car. Courtepatte was not with them. Witness 1 described Laboucan and Briscoe as being “covered in blood.” They had blood on their arms and legs and Laboucan had blood all over his shirt.

Laboucan took a water bottle out of the back seat to wash himself off. Witness 1 does not know what Briscoe did at that time with respect to the blood on

his body. During cross-examination, Witness 1 was questioned why she did not mention Briscoe as having blood on him during any of her previous court appearances. Her response was that the only person she really saw, or looked at, was Laboucan. [ 92 ] Everyone got back into the car. Laboucan said they beat up Courtepatte and sent her home naked. He looked at Witness 1 and said that he “could not do it to you because I love you too much.” Witness 1 then testified that someone said to her that, if she said anything “they’ll do worse to her,” although she cannot remember who said this to her.

During cross-examination, she confirmed that it was Laboucan, and not Briscoe, who said these words, or words of similar effect. [ 93 ] DDT then pulled out knives from her back pack and flashed them in Witness 1's face. DDT said she stuck them in Courtepatte’s throat. [ 94 ] They drove back to the Motel where Briscoe and Bird were staying. Witness 1 had never been there before. When Witness 1, Laboucan, Briscoe, Bird and DDT were in the room (she could not remember whether Williams was also present), Laboucan went to the freezer and pulled out a bag of bread and then pulled out another bag.

The second bag contained a finger. The finger was purple and was one to one and one-half inches long. Witness 1 did not know whether the finger belonged to a man or a woman. It made her very sick. [ 95 ] At some point, Laboucan, Briscoe and Williams left, as they had to take Williams somewhere. Everyone else just remained at the Motel and talked to each other. Witness 1 remained with the group for the next three to four days. Nothing happened during that period. They eventually left the Motel. Laboucan was supposed to be picking up some money from the City Centre Mall, so they all went there.

Laboucan “disappeared,” so Witness 1, Briscoe and Bird returned to the Mall, with Briscoe driving the car. They ran into Witness 1's mother and aunt. Witness 1’s mother showed Witness 1 a newspaper that had a picture of Courtepatte’s clothing. Briscoe and Bird were outside at the time. [ 96 ] Witness 1’s mother wanted Witness 1 leave with her. Witness 1 refused, as she did not want to leave Briscoe or Bird. Her mother then called the Mall security to try to get Witness 1 to leave with her. Witness 1 would still not leave, so police were called to escort her out.

Witness 1 was taken to the Edmonton Police Service station in the Mall. Witness 1 testified that she wanted to tell what had happened, but she was so scared. By this time, she knew that the group had hurt Courtepatte far more than they said they did. After her interview with the police, she went home with her mother. 13. Witness 2 [ 97 ] This Court directed that there be a ban on the publication of the name of this witness. This Court will refer to this witness as “Witness 2.” Witness 2 is Witness 1’s mother. [ 98 ]

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