R. v. Karim, 2012 ABQB 589

Court of Queen ’ s Bench of Alberta Citation: R. v. Karim, 2012 ABQB 589 Date: 20120926 Docket: 060508074Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Mohamed Ali Karim and Robert Elliot Deer Accused Restriction on Publication: Identification ban – See the Criminal Code,

section 486.5. By Court Order, information that may identify any of the undercover officers in this case must not be published, broadcast, or transmitted in any manner.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. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice E.A. Hughes _______________________________________________________

Introduction [ 1 ] In January 2006, Jack Beauchamp was the president of Morbank Financial Inc. Morbank was, and is, a non-bank commercial mortgage lending company, and in January 2006, its office was situated on the 12 th floor of an office building located 635 - 8 Avenue S.W. in downtown Calgary. [ 2 ] On the morning of January 16, 2006 at 7:49 a.m., Mr. Beauchamp entered the office building via a Plus 15, carrying a coffee and a briefcase. A minute later, Mr. Beauchamp swept his security card and entered the Morbank office. At 7:53 a.m., Mr.

Karim was recorded on the CCTV security cameras entering the office building at 635-8th Ave. S.W., and then entering an elevator. Four minutes later, Mr. Karim was recorded exiting an elevator and leaving the building. During this four minute period, Mr. Karim shot Mr. Beauchamp six times, causing Mr. Beauchamp’s death. [ 3 ] Mr. Karim and Mr. Deer are jointly charged with the first degree of Mr. Beauchamp. On the evidence before me, there is no issue Mr. Karim unlawfully caused the death of Mr. Beauchamp. The issues I must decide respecting Mr.

Karim are as follows: i.) Has the Crown proven beyond a reasonable doubt that Mr. Karim had the state of mind for the offence of murder? ii.) If the answer to question i.) is yes, has the Crown proven beyond a reasonable doubt the murder was planned and deliberate? [ 4 ] The position of the Crown is that Mr. Deer was a party to the murder of Mr. Beauchamp. The issues I must decide respecting Mr. Deer are as follows: i.) Has the Crown proven beyond a reasonable doubt that Mr.

Deer was a party to murder? ii.) If the answer to question i.) is yes, has the Crown proven beyond a reasonable doubt the murder was planned and deliberate? Background Facts [ 5 ] The background facts in this case are not in dispute and are relevant respecting the relationship between Mr. Deer and Mr. Beauchamp, and Mr. Deer and Mr. Karim. The following facts are findings of fact I have made from the uncontroverted evidence. [ 6 ] In 2005, Mr. Deer was a principal in two companies – CDO Financial Group and Remington International Corporation.

Remington International had a division, Remington Ground Thaw Services, that amongst other things did landscaping. [ 7 ] In April 2005 Mr. Karim and a friend Jimmy went to Cash Corner in Calgary to seek employment for the day. At Cash Corner, Jimmy and Mr. Karim got into a vehicle driven by Mr. Deer and did landscaping work for him that day. Based on the financial records of Remington Ground Thaw Services, I find this was Wednesday, April 30, 2005.

[ 8 ] After this first work day, Mr. Karim began to work almost daily for Remington Ground Thaw Services until the end of August 2005, and thereafter sporadically. A friendship developed between Mr. Karim and Mr. Deer even though Mr. Deer was “the boss”. For example, Mr. Deer offered Mr. Karim a place to live in the basement of one of his supervisor’s homes and the two men socialized together along with other of Mr. Deer’s employees and family members. Mr. Karim described Mr. Deer as “being like a father to him”. [ 9 ] Once the landscaping work finished for the season in 2005, Mr.

Karim moved out of his supervisor’s home, and later moved to Edmonton. [ 10 ] In October 2005, a mortgage broker brought an application by CDO Financial Group to Morbank for the financing of a construction project it was wishing to pursue in northwest Calgary. Mr. Deer was one of three principals in CDO Financial Group and he paid a $2,000.00 deposit on the commitment fee for the financing to Morbank on behalf of CDO. Morbank analysed the financial information respecting the construction project and concluded it would not finance the project as structured. However, Mr.

Beauchamp asked Valerie Zimmer, a Morbank employee involved in this process, to set up a meeting with Mr. Deer to discuss the project. [ 11 ] A meeting occurred between Mr. Beauchamp, Ms. Zimmer and Mr. Deer. I find this meeting took place on November 24, 2005 based on the emails and appointments seized from Mr. Deer’s computer. At the meeting, Mr. Beauchamp explained Morbank’s position it would not finance the project as structured, but told Mr. Deer Morbank was willing to work with him so long as the cost of the project could be reduced. The meeting concluded with Mr.

Deer having to revise his budget if he wished Morbank to consider financing the project. [ 12 ] Ms. Zimmer described the meeting this way: Q ...What was the tone or level of emotion at the meeting? A The tone, it was – the tone was, you know, Jack – Mr. Beauchamp, you know, when it came to finances and it came to protecting his investors, the tone of the meeting, he just made sure that there was no room for misinterpretation. So he was jut very black and white. There was no emotion into the meeting, but it was just based on the project itself. It had nothing to do with anybody or any person or anything like that.

It was strictly black and white. It was numbers only. ... Q Now, the third person there that you’ve referred to as Mr. Deer, what was his emotions like at the meeting? A Of course he wasn’t pleased to hear, you know, what Mr. Beauchamp had to say, so he, you know, tried very hard to argue his point. But, unfortunately, it just didn’t change the dynamics of the file. [ 13 ] I find Mr. Deer made the following note in his appointment calendar on his computer after the meeting with Mr. Beauchamp and Ms. Zimmer: Jack was, abnoxious [sic] letting me know who was boss! Val said nothing.

Appraisal came in below cost, so they cannot approve the project. May reconsider if 15% profit was not spent on a GC. [ 14 ] After the meeting Ms. Zimmer followed up with Mr. Deer, and he submitted a revised application to Morbank with his company, Remington International Corporation, being the borrower. In addition, he sought the $2,000.00 deposit from the first application be transferred to the revised application. [ 15 ] Mr. Beauchamp issued a new commitment letter for the financing of the project to Remington on December 7, 2005 based on the revised application.

[ 16 ] Later that afternoon, I find Mr. Deer sent an email with an attached letter to Mr. Beauchamp, cc’d to Ms. Zimmer, respecting the financing proposal set out in the commitment letter. Mr. Deer wrote: Jack, I have received your Finance proposal, and am reviewing it with interest. I do however, have a question; I can only surmise that the Commitment fee in Item 11 of your Commitment letter is based on the $18,055.00 originally calculated for CDO on the numbers submitted by them. From that it appears that the $2,000.00 deposit has been deducted, leaving a balance of $16,055.00 owing. Is that correct?

That appears to be the case because the original loan applied for was $1,203,635.00 and a fee of 1.5% equaled $18,055.00 This revised loan application for the same project offers more owner equity and less financing, so I require a revised application fee. The new loan amount is for a maximum of $949,115.00 (which is more than my budget called for), but in any event a fee of 1.5% would be $14,237.00. From that fee, I would ask that the $2,000.00 already received by you be credited to the continuance of this project. The agreed Brokerage Fee is also 1.5%, so we will be changing Item 12 to that figure as well.

Please reply to all concerned that we have this agreement, and I will continue to review and approve your proposal. Thanks, Bob Deer Remington International Corporation [ 17 ] About two hours later, I find Mr. Deer sent Ms. Zimmer the following email: Hi Val, Thanks for confirming by phone that the $2,000.00 already paid by me on the CDO file has been transferred to the Remington file. I was hoping to receive an e-mail to that effect as well because I am to meet with my mortgage broker at 6:00 P.M. tonight, and I want to confirm with him that the project is continuing, albeit with new numbers, and a new entity.

If you are able to e-mail me before you go home today, I would greatly appreciate it. Thanks, Bob Deer [ 18 ] The following day, Mr. Beauchamp replied to Mr. Deer’s letter respecting the commitment letter: You are correct in figuring out our calculation of the application fee. It is owed regardless of whether or not you accept this new commitment. If you accept this commitment you are getting a break as we are not charging you a new commitment fee for this new commitment letter. If you make any changes to this commitment letter without my agreement in advance, the commitment letter will become void.

I suggest you call me to discuss this rather than corresponding by e-mail on such a serious matter. Jack Beauchamp [ 19 ] This email appears to have precipitated the series of threatening emails and telephone calls between Mr. Beauchamp and Mr. Deer that followed over the next weeks, which ultimately lead to the events of January 15 and 16, 2006. [ 20 ] Mr. Deer emailed the following reply to Mr. Beauchamp on December 8, 2005: Jack, I will not phone you because you have lied to me before. I will correspond with you in writing only, because I now require evidence of everything that we say to each other. ...

The problem was that the appraisal came in lower than expected, and you then told me that the deal would not work, and that you were backing away from your commitment. At the same time, you told me that your fee of $18,055.00 was duly earned and payable. Only gangsters talk like that! ... In all correspondence, you refer to this as a “revised” loan application, which means that our entire process is a continuance, and that we have details to resolve, but that we are both interested in this very valid project. I am an honest business man, and I do business with honest people.

When you write me an e-mail telling me that I am “getting a break as we are not charging you a new commitment fee”, I hear a gangster talking again. You and I both know that you have not earned my business yet! If you care to do some honest business with me, I will gladly offer a construction project mortgage to you. Until then, back away from your “strong arm” tactics, because I don’t do business that way. Please review your position, and let me know if we can continue this project together. [emphasis added] Sincerely, Bob Deer [ 21 ] I infer Mr.

Beauchamp retracted or cancelled Morbank’s letter of commitment respecting the financing of Mr. Deer’s construction project as a result of the above letter. This inference is based upon Mr. Deer’s email to Mr. Beauchamp on December 12. [ 22 ] In reply to the retraction, Mr. Deer sent the following email on December 12: December 12, 2005

Jack, Your letter of December 9, 2005 further proves that you have never committed to financing this project in the first place. What I mean by that is that in the 24 hour period between your last “Commitment Letter” which I received on December 8 th and your retraction of that “commitment” on the 9 th , nothing changed in the validity of the project or in financing criteria.

The only thing that changed was that your feelings were hurt and you were pouting like a child because I was rejecting your “strong arm”, unethical business idea of trying to charge me a full fee for a project that you never approved financing for in the first place. ... You say in your letter that you “...will be pursuing payment of these fees in full within our legal rights...” and so I must tell you that I would have a hard time believing that you would find a court in this country that would find your practice just or fair.

You know in your heart that your ethics are in the mud, and that you will have to answer to that some day. My mother told me some 45 years ago that if a man lives by the sword, he should expect to die by the sword. I guess a more modern translation might sound like “ if you live like a gangster, you should expect to die like a gangster. ” Don’t think for a minute that I am threatening you, because I am not. That is not the life I lead. I am merely suggesting that your practice of suing people for fees that are not owed, on projects that have never begun because of your childish nature is absurd.

How well do you research your clients? Are you aware that some of them may not stand idly by, while you steal money from them? Do you realize that someone could hurt you or your business for operating with such unethical, low-life standards? Kindly govern your actions accordingly. [emphasis added] Yours Very Truly, Bob Deer [ 23 ] It appears Mr. Beauchamp telephoned Mr. Deer as a result of the email of December 12. In addition, Mr. Beauchamp called the Calgary Police Service complaint line on December 14, 2005 with respect to Mr.

Deer’s emails, including the email of December 12, 2005 but nothing came of the complaint. [ 24 ] Mr. Deer sent another email to Mr. Beauchamp on December 15, 2005 at 10:11 a.m. in response to Mr. Beauchamp’s telephone call: Good Morning Jack, I apologize for wording my letter to you in such a way that it scared you, or seemed to threaten you in any way. I mean no harm to you personally, as I don’t even know you. Simply, I was expressing my disgust in your company’s unethical business practices. The best case scenario is for both of us to close our files with each other, and get on with life.

I do not like your threatening phone calls any more than you like my letters. I believe that you think that the content of your calls are less traceable than my written word. The difference is that you are a low life coward, and I am prepared to answer and explain everything that I say or do. I put everything in writing. I would highly recommend that we end this situation immediately, or you’re right, it will get ugly. There is no need for that. Currently your secret is safe. I will say nothing to anyone. If you choose to pursue me and this file, you will have a “hornet’s nest” to deal with.

The media will tear your company apart. Stop NOW! And do not call me any more! We can both walk away from this without getting hurt. It’s up to you.

Bob Deer [ 25 ] Mr. Beauchamp replied one hour later as follows: The difference between us is that you are the low life coward. You are so scared of discussing this in person like rational people that you hide behind your e-mails. You feel that putting it in writing gives you license to hurl insults at me and my company. Let’s see how long it takes you to cross the line into slander. I am not about to sit by when that happens. If you had any brains at all, you might understand simple contract law. You and your partners signed a contract with us and were unable or unwilling to live up to your part of the contract.

If you are too stupid to understand what that means, ask someone. Apparently signing your name to anything means nothing. Your word is worthless in our opinion and therefore in the opinion of the lending marketplace. Morbank on the other hand, puts all of its agreements formally in writing and is always fully prepared to stand behind our written agreements. Go ahead, and challenge our agreements in front of a Court if you disagree. Stop with the threatening rhetoric and veiled threats. First off, I’m not the least bit intimidated or afraid of you. Second, you are not smart enough to pull off a war of words.

Third, you are embarrassing yourself, in front of my lawyer, your old partners, the mortgage broker, my staff and now the police. Maybe its time you grew up moron. If you want to discuss this in person, if you have the courage, please call. Otherwise, do not contact me anymore. Jack Beauchamp [ 26 ] I find Mr. Deer telephoned Morbank on at least two other occasions after the last email. For example, between Christmas and December 31, 2005, Mr. Deer called Morbank asking to speak to Mr. Beauchamp. I accept the evidence of Calvin Volk, who spoke to Mr. Deer, that Mr. Deer was irate that Mr.

Beauchamp had not returned his earlier call or calls and was adamant he wished to speak to Mr. Beauchamp. Mr. Volk took the message and gave it to Mr. Beauchamp January 3, 2006; it appears Mr. Beauchamp did not return the call. Mr. Karim ’s December visit to Calgary [ 27 ] During the month of December 2005, Mr. Deer was in communication with Mr. Karim. I make this finding based on the four entries respecting Mohamed, who I find is Mr. Karim, in Mr. Deer’s appointments on his computer, and Mr. Karim’s evidence he received a telephone call at the end of December from Mr.

Deer asking him to come to Calgary for a few days. I find Mr. Karim did come to Calgary around December 28 or 29, 2005 and stayed at Mr. Deer’s home for a couple of nights. [ 28 ] The evidence respecting Mr. Karim coming to Calgary at the end of December, 2005 and January 15 and 16, 2006, and his observations and recollection of conversations between himself and Mr. Deer on both occasions, is found in Mr. Karim’s conversation with Cst. B. on April 23, 2006, Mr. Karim’s conversation with Det. C. on April 26, 2006, and Mr. Karim’s trial testimony.

[ 29 ] The 2006 conversations were part of a Mr. Big operation that targeted Mr. Karim. These conversations are evidence against Mr. Karim, but not evidence against Mr. Deer. [ 30 ] There are differences between the two Mr. Big conversations and Mr. Karim’s trial testimony with respect to Mr. Karim’s account of events in Calgary at the end of December, 2005 and the events of January 15 and 16, 2006,. [ 31 ] I prefer Mr. Karim’s account of his December 2005 visit with Mr. Deer and the events of January 15 and 16, 2006 in the two Mr. Big conversations rather than his trial testimony.

I make this finding for four reasons. First, the Mr. Big conversations took place approximately three months after the shooting of Mr. Beauchamp, when the events were more fresh in Mr. Karim’s mind than at his second trial, some six years after the shooting. Second, I have reviewed the transcript of Mr. Karim’s trial testimony on a number of occasions. Each time I reviewed it, I observed a another instance where Mr. Karim testified to a matter that was clearly based upon information he received after Mr. Beauchamp’s death and/or after he was charged with the murder of Mr. Beauchamp. While Mr.

Karim’s conversations with Cst. B. and Det. C. have some references to information Mr. Karim appeared to have learned from media reports after Mr. Beauchamp’s death, this information is much more limited and easier to discern. Third, there is no evidence that any communication occurred between Mr. Deer and Mr. Karim after Mr. Deer dropped Mr. Karim at the Bus Depot on January 16, 2006 until some time after they were both arrested. This fact limits the possibility of any collusion between the two men. Fourth, Mr. Karim, in his conversations with both Cst. B. and Det.

C., said he had “a plan” if the police arrested both he and Mr. Deer for the murder of Mr. Beauchamp. For example, he told Cst. B. his plan was: “... I would say, you know what? It was my friend, I was concerned about it, he knew nothing about it. I went behind his back and shot this guy.” [ 32 ] As I prefer the evidence of Mr. Karim’s conversation in the Mr. Big operations, I only accept those portions of his 2012 trial testimony that are consistent with the two Mr. Big conversations, unless otherwise stated. With this caveat, I make the following findings respecting Mr. Karim’s visit to Mr.

Deer at the end of December 2005 based on Mr. Karim’s testimony. [ 33 ] Mr. Deer called Mr. Karim on approximately December 28, 2005 and asked him to come to Calgary; Mr. Karim agreed. Approximately the next day, Mr. Karim took the bus from Edmonton to Calgary and was picked up at the Greyhound Bus Depot by Mr. Deer. Mr. Karim stayed until the beginning of January in Calgary, approximately three nights of which were spent at Mr. Deer’s home. [ 34 ] During this visit, Mr. Deer told Mr.

Karim about his business dealings with Morbank including Morbank’s approval of financing for his construction project, the retraction of the financing commitment by Morbank, Morbank’s position that Mr. Deer owed a commitment fee of approximately $16,000. to Morbank, Mr. Deer’s belief he did not owe any monies to Morbank, and that Morbank had set a deadline of December 31, 2005 or January 1, 2006 for the payment of the commitment fee monies. [ 35 ] Mr. Deer showed Mr. Karim the emails between himself and Mr. Beauchamp and told Mr. Karim about some of the telephone calls. Mr. Deer called Morbank employees and Mr.

Beauchamp “gangsters” and “henchmen”. I observe these terms were used by Mr. Deer in his emails to Mr. Beauchamp. [ 36 ] I do not accept Mr. Karim’s testimony that Mr. Deer called Morbank and Mr. Beauchamp “Mafia”. I make this finding based on a review of the two Mr. Big conversations. In neither of the conversations did Mr. Karim use the word “Mafia” when discussing the events with either undercover officer. In particular, when Mr. Karim was asked by Cst. B. if the person he shot was “connected”, Mr. Karim replied “no”. [ 37 ] Mr. Karim observed Mr.

Deer to be overly nervous and scared as a result of the emails and telephone calls. Therefore, the two men slept with glasses placed on the door handles of doors at night as a type of alarm system. In addition, Mr. Deer, at the request of Mr. Karim, gave Mr. Karim one of his handguns to keep with him at night for protection. [ 38 ] Mr. Karim believed the Morbank situation and Mr. Deer’s separation from his wife caused Mr. Deer a great deal of stress. [ 39 ] Mr. Karim, Mr. Deer and others including Mr. Logan, spent New Year’s Eve together at a pub. Mr.

Karim stayed his remaining couple of nights in Calgary at the home of his former supervisor.

[ 40 ] Mr. Karim returned to Edmonton on approximately January 2, 2006. [ 41 ] I note Mr. Karim’s evidence respecting New Year’s Eve is confirmed by the evidence of Mr. Logan. [ 42 ] I accept the evidence of Mr. Logan that on December 23, 2007 Mr. Deer showed him the emails between himself and Mr. Beauchamp that were on Mr. Deer’s computer. I accept Mr. Logan’s evidence that Mr. Deer described the emails and conversations with Mr. Beauchamp as threatening, and Mr. Deer appeared nervous for his business as a result of the emails.

January 15 and 16, 2006 [ 43 ] A number of pieces of evidence establish a time line for January 15 and 16, 2006. [ 44 ] I accept Mr. Karim’s testimony that a day or so before January 15, he received another phone call from Mr. Deer to come to Calgary. I note Mr. Deer’s appointment on his computer entitled “Mohamed may come from Edmonton” was created on January 12, 2006 in the afternoon although the appointment start date reads January 15, 2006. I find Mr. Deer made this entry and it refers to Mr. Karim. [ 45 ] Mr.

Karim agreed to come and arrived at the Greyhound Bus Depot in Calgary on January 15, 2006. [ 46 ] Mr. Karim’s bus ticket, which I infer was purchased in Edmonton, was found in Mr. Deer’s home during the execution of the search warrant. The date and time on the bus ticket is recorded as: 01/15/06 11:07 a.m. [ 47 ] The CCTV security cameras in the Bus Depot recorded Mr. Karim arriving, and some time later, Mr. Deer entering the bus depot. The two men were recorded leaving the bus depot. [ 48 ] Mr. Karim and Mr.

Deer were next recorded on the CCTV security cameras of a London Drugs store, where the two men appeared to be shopping and some items were purchased. [ 49 ] A London Drugs receipt was seized from Mr. Deer’s motor vehicle during the execution of the search warrant. This receipt led the police to the London Drugs in question and the seizure of the CCTV security videos. The time recorded on the London Drugs receipt is 15:54 hours and the time recorded on the CCTV security videos is approximately the same time. I find 15:54 hours was the time Mr. Deer and Mr.

Karim purchased the disposable gloves and rubbing alcohol at London Drugs. I accept Mr. Karim’s testimony the rubbing alcohol was purchased to clean the 22 caliber handgun he shot Mr. Beauchamp with. [ 50 ] I find from this fact that a plan had been made by Mr. Karim and Mr. Deer, prior to the purchase of these items, that Mr. Karim would confront Mr. Beauchamp at his office, while armed with a 22 caliber handgun. [ 51 ] Mr. Karim and Mr. Deer were recorded a third time on January 15, 2006 on CCTV security cameras, this time at a Walmart store where the two men were shopping. A Walmart receipt seized from Mr.

Deer’s home during the execution of the search warrant led the police to the Walmart in question and the seizure of the CCTV security videos. The time on the receipt is 20:43:54 and the time recorded on the seized CCTV security videos is approximately the same time. I find Mr. Karim and Mr. Deer purchased sunglasses, men’s gloves and a nylon portfolio at 20:43:54 hours. I also accept Mr. Karim’s evidence that the sunglasses were purchased so Mr. Karim would not be recognized and the portfolio would allow him to look more like a businessman when he entered the office building at 635 - 8 Avenue S.W.

[52] On Monday, January 16, 2006 Mr. Karim was recorded entering the building at 635 - 8 Avenue S.W. at 7:53 a.m. wearing thesunglasses and gloves, and carrying the briefcase purchased the night before. At 7:57 a.m. Mr. Karim was recorded leaving the officebuilding, still wearing the sunglasses and gloves, and carrying the briefcase. [53] I accept Mr. Karim’s evidence that upon leaving the office building, he went to where Mr. Deer was parked in his vehicle.The two men drove to Mr. Deer’s house where Mr. Karim shaved off his beard and changed his clothes. The two men drove to an areawhere the gun and Mr.

Karim’s clothes were discarded, and then drove to the Bus Depot. En route to the Bus Depot, Mr. Deer stopped ata bank machine and withdrew monies, most of which he gave to Mr. Karim. A TD Bank withdrawal receipt was found in Mr. Deer’spossession on his arrest and records the time of withdrawal at 09:52 hours. [54] CCTV security cameras recorded Mr. Deer and Mr. Karim entering the Bus Depot together and after a period of time, Mr.Deer departed. Mr. Deer was arrested at his home at 11:20 a.m. that same morning. [55] It is my intention to assess the evidence in this case against this independent evidence. Mr.

Karim Has the Crown proven beyond a reasonable doubt that Mr. Karim intended to cause the murder of Mr. Beauchamp? [56] A person who has unlawfully caused the death of another may be found to have the mental element for murder if the evidenceestablishes beyond a reasonable doubt that the person either: i. meant to cause the death, or ii. meant to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues. See s. 229(a)(

i) and (ii)of the Criminal Code. [57] The Crown submits I may find Mr. Karim had the requisite intent under both subsections of s. 229(a). Counsel for Mr. Karimsubmits there is no evidence to support the intention pursuant to s. 229(a)(

i) and the evidence before me creates a reasonable doubtrespecting the intention pursuant to s. 229(a)(ii). [58] S. 229(a)(

i) provides the simplest definition of the nature of the mental element – that being an intention to cause death. [59] The mental element of s. 229(a)(ii) -- meant to cause bodily harm that a person knows is likely to cause death – has beenconsidered by the Supreme Court of Canada in R. v. Nygaard, (SCC), [1989] 2 SCR 1074 and R. v.

Cooper, (SCC), [1993] 1 SCR 146. [60] In Nygaard at paras. 55 - 57, the Court said the mens rea or mental element required by the second part of s. 229(a)(ii): “... requires that the Crown prove that the accused meant to cause the victim such bodily harm that he knew that it was likely to causethe death of the victim and was reckless whether death ensued or not as a result of causing that bodily harm. The essential element is thatof intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of thevictim.

The aspect of recklessness is almost an afterthought insofar as the basic intent is concerned. 56 In Sansregret v. R., (SCC), [1985] 1 S.C.R. 570, [1985] 3 W.W.R. 701, 45 C.R. (3d) 193, 18 C.C.C. (3d) 223, 17

D.L.R. (4th) 577, 35 Man. R. (2d) 1, 58 N.R. 123, recklessness was defined as being the attitude of one who was aware of the danger theprohibited conduct could bring about yet nevertheless persisted in that conduct despite the knowledge of the risk.

Thus the sectionrequires the accused to intend to cause the gravest of bodily harm that is so dangerous and serious that he knows it is likely to result indeath and to persist in that conduct despite the knowledge of the risk. 57 In my view, the vital element of the requisite intent is that of causing bodily harm that the perpetrator knows that it is likely tocause death and yet persists in the assault. ... [61] The court in R. v. Cooper again discussed the nature of the intent required pursuant to s. 229(a)(ii) and said at paras. 18 - 21and 23: 18 This

section was considered in R. v. Nygaard, supra. On the issue of the requisite intent the Court was unanimous. At pages1087-88, it was said: The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likelyto result in death of the victim. The aspect of recklessness is almost an afterthought ... 19 The aspect of recklessness can be considered an afterthought since to secure a conviction under this

section it must be establishedthat the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodilyharm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences whichare known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not. 20 The concept of recklessness was considered by this Court in Sansregret v.

The Queen, (SCC), [1985] 1 S.C.R. 570.At page 582 it was said [Recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited bythe criminal law, nevertheless persists, despite the risk.

It is, in other words, the conduct of one who sees the risk and who takes thechance. 21 The same words can apply to s. 212(a)(ii) [now s. 229(a)(ii)] with this important addition: it is not sufficient that the accusedforesee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning thevictim. ... 23 The intent that must be demonstrated in order to convict under s. 212(a)(ii) has two aspects. There must be (

a) subjective intent tocause bodily harm; (

b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is only whenthose two elements of intent are established that a conviction can properly follow. [62] The evidence I must consider on this issue is the evidence of Mr. Karim’s conversations with the undercover officers, his trialtestimony I accept, and the other independent evidence. [63] The Crown submits I should believe little of the evidence of Mr. Karim, and in particular his trial testimony, in assessing thisissue.

[64] Counsel for Mr. Karim acknowledged Mr. Karim unlawfully caused the death of Mr. Beauchamp, but submits the evidencedoes not establish beyond a reasonable doubt that Mr. Karim intended to kill Mr. Beauchamp. Counsel for Mr. Karim submits theevidence of Mr. Karim ought to be believed or at least raise a reasonable doubt. Counsel also submits this situation is unlike many Mr.Big scenarios in that in many of those trials, it is the position of the accused that he or she was bragging or exaggerating his or her role inthe Mr. Big operation. Counsel submits this is not the case here. [65] In assessing Mr.

Karim’s evidence, I remind myself of the instruction on credibility and reasonable doubt from R. v. W.(D.), (SCC), [1991] 1 SCR 742 at para. 11: ... First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [66] I also remind myself of the instruction a trial judge provides to a jury respecting the assessment of evidence. For example, theCanadian Judicial Council specimen jury instruction on the assessment of evidence at para. 9.4 provides as follows: [1] To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial.

It willbe up to you to decide how much or little of the testimony of any witness you will believe or rely on. You may believe some, none or allof the evidence given by a witness. [2] When you go to the jury room to consider the case, use your collective common sense to decide whether the witnesses knowwhat they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little tobelieve of a witness's testimony or how much to rely on it in deciding this case.

But here are a few questions you might keep in mindduring your discussions. [3] Did the witness seem honest? Is there any reason why the witness would not be telling the truth? ... [6] Did the witness seem to have a good memory? Does the witness have any reason to remember the things about which s/hetestified?

Did any inability or difficulty that the witness had in remembering events seem genuine, or did it seem made up as an excuse toavoid answering questions? [7] Did the witness seem to be reporting to you what he or she saw or heard, or simply putting together an account based oninformation obtained from other sources, rather than personal observation? [8] Did the witness's testimony seem reasonable and consistent? Is it similar to or different from what other witnesses said about thesame events?

Did the witness say or do something different on an earlier occasion? [67] I begin my analysis of this issue with my assessment of Mr. Karim’s statements to the undercover officers. [68] I accept much of Mr. Karim’s conversations with Cst. B. and Det. C. regarding the circumstances of Mr. Beauchamp’s death.

I make this finding for the following reasons: i. The circumstances under which Mr. Karim told Cst. B. about the shooting. Mr. Karim said to Cst. B.:

a) I’m gonna’ tell you this, and no one on earth knows it but God, me and this guy in Calgary knows. b) ... I’m saying that DJ man, I’m trusting you, brother, with my life. Right now I’m giving you my life sentence.

c) I wasn’t planning on telling you, but you told me something about a, a six feet underground situation ... I mean, you know what? The guy is fucking trusting me, man. I, I’ll be a rat. I just go, you know what? I know this, this, this, then all this stuff, you know, buddy who lives in Seattle, you know what? You got my shit, I got your shit ... ... ...and we’re like this now. ii. Mr. Karim’s belief he had to “come clean” with the “Boss” if he wished to become part of the organization. I find Mr. Karim wanted to become part of the organization based upon Mr.

Karim’s conversations and his actions with the undercover officers during the Mr. Big operation in April 2006. iii. There is no evidence of any opportunity for collusion between Mr. Deer and Mr. Karim from the time of Mr. Deer’s arrest on January 16, 2006 until the arrest of Mr. Karim at the end of April, 2006. iv. Mr. Karim told Det. C., the “Boss” about the purchase of the latex gloves, the alcohol, the leather gloves, the sunglasses and the portfolio, which Mr. Karim called a suitcase. This evidence is confirmed by independent evidence. [ 69 ] However, there are parts of these conversations I do not believe.

For example, Mr. Karim admitted he lied respecting how many days he was in Calgary prior to the shooting, who he obtained the handgun from, and how he disposed of the handgun after the shooting. [ 70 ] Mr. Karim’s statements to the undercover officers that he did not go to the Morbank office intending to kill Mr. Beauchamp raise a reasonable doubt for me. Thus, I cannot find the Crown has proven the intent for murder under s. 229(a)(i). [ 71 ] I then turn to the second intent pursuant to s. 229(a)(ii). The following are relevant passages of the evidence I accept from Mr. Karim’s conversations with Cst.

B. and Det. C. to the issue of the intent pursuant to s. 229(a)(ii). [ 72 ] Mr. Karim said as follows to Cst. B: i. So I asked him to ... just basically, you know, let me deal with it and he said “What do you wanna’ do?” I said, “Well, I can go and ... ... I can take care of the guy [Mr. Beauchamp] in the legs or something and, you know, with a small weapon, maybe a couple ones in the stomach , we’re talkin’ about a ... a twenty-two ...

ii. So that’s when I got out from the elevator. Umm, I looked on my right, it was some kind of company. I looked on my left, it was the company I’m looking for. Looked in, uhh, the door was open. I called his name [Mr. Beauchamp] twice, three times, nobody answered, but the door is open so obviously there was someone in there. So ... and I have this twenty-two right here. I fuckin’, uhh, keep calling his name, and then I was just gonna’ just sit down and wait basically, right? Cst. B.: Yeah. And, uhh, this guy comes. He says, “Yes?” I’m like calling his name.

I said, “Is that you?” “Yeah.” So basically he was too close for me to take out the gun and just start blasting his leg, right ? So I, I just spoke to him. I said, “Hey, listen, a buddy of mine sent me here for a loan for the, you know, for, for a, a real estate thing.” He’s like “Do you have a appointment?” I said, “No, I don’t have an appointment or anything.” He said, “Well, you need an appointment.” So I said, “Okay, well give me a card.” He went back to his office.

That ’s when I took out the gun, pulled the safe off and, uhh, went to him but, uhh, when he saw me with the gun, he ran towards me, so I had him at least three in the chest, uhh, two in the stomach and one in the leg. Cst. B.: Yeah. Mohamed Karim: And, uhh, to tell you the truth, you know, I didn’t know that I got him in the chest. Umm ... iii. Cst. B: Was he fightin’ or did he go down right away? Mohamed Karim: No, no, no, he ... as soon as I got him with the first bullet and that, he just, he went like, and went down and, uhh, that ’s when I got him ... basically he was down when I kept on shooting him . iv.

Went into the back [of Mr. Deer’s motor vehicle] and laid down, and told to get the fuck out. He’s like, “What’s, what’s up?” I’m like, “It’s done.” He’s like, “No way.” I’m like “Yeah.” He thought maybe I was you know ... ... Well maybe, you know. Like he was, he, he was like, “Are you serious?” I’m like, “Yeah.” “Is he dead?” I’m like,”No, I don’t think so.” ‘Cause I, I didn’t see those chest shots, man. You know what?

I hit him at least twice in the chest, two in the, in the stomach, ‘ cause the, the, the whole point was to get at least two in the stomach and two in the legs to make some damage, and tell the guy, “You don ’t fuck with us, ”... v. ...And, uhh, with the closed, uhh, doors at eight in the morning with no one in the office, I was all good to go, man, and ... Cst. B.: So now ... Mohamed Karim: ... couldn’t wait. He was right in front of me, my eye sight, like you know what? This is the time. [ 73 ] Mr. Karim told Det. C. the following: i. Mohamed Karim: ... and, uhh, I managed to get him [Mr.

Beauchamp] back to the office by asking him for a card, a business

card. So he went back to the office. That’s when I, uhh, pulled out the gun, followed him, but when he saw me coming, he kind of went towards me. That’s, that’s the mistake I did. I didn’t wanna’ kill him. Det. C.: You didn’t? Mohamed Karim: Umm, I want to, to give him a couple in, in his stomach and, and a few in the legs, right? I didn’t want to. I did not ... want to kill him. Just, you know. Umm, but the first couple were in the chest unfortunately. ... ii. Det. C.: ... what did he want you to do with Buddy? Mohamed Karim: He wasn’t quite sure about it.

He was like, “Ya know, I don’t want to have a murder on my, “... he, he didn’t wanna live with it basically. I told him, “I ’m not gonna kill him, ya know, just gonna shoot him .” iii. Mohamed Karim: ... I’m like, “Okay, can we see each other?” I was planning to go with him in the office and then .. ... once he turned his back, I’m just gonna take him out, um, but he said, “No, you need an appointment, sir. I’m sorry. I’m really kind of busy.” I said, “Okay, that’s fine.” I kind of backed off and I said, “No problem. You have a good day.

Actually, can I have a card, please?” and he’s like yeah ... and he goes like this and go, “Okay, just a second,” and he goes back there. So I’m here ... uh, yeah, I’m here. He went that way. I just take it off, off the safe, man, came out, look at him, he came at me, I went like this and the moment he saw the gun, he was shot, but he went towards me though. iv. Mohamed Karim: ... I told Bob, “Listen, man, I think I killed the guy, man. I hope f’ ...I hope not,” so I, I go like this to Bob. This here is ... where is the heart? Was here, ya know.

I’m like, “I think I shot him there, man.” He’s like, “No.” I’m like, “Yeah, I think so.” So ... it wasn’t the plan, ya know. [emphasis added] [ 74 ] Mr. Karim’s statements to Cst. B. and Det. C. that he “wanted to give Mr. Beauchamp a couple in the stomach and a few in the leg” lead to the inescapable conclusion that Mr. Karim meant to cause bodily harm to Mr. Beauchamp by shooting him in the legs and/or stomach. An intention to shoot a person in the abdomen is intending to cause bodily harm of a grave and serious nature due to the number of vital organs and blood vessels in the stomach/abdomen area of a person.

Mr. Karim understood that shooting a person in the stomach and legs would “make some damage”. [ 75 ] I find the above, coupled with Mr. Karim’s description to Det. C. and his accompanying actions of what occurred in the Morbank office the morning of the shooting depicted on the video, establish beyond a reasonable doubt that Mr. Karim had the requisite intent for murder. Mr. Karim described and demonstrated to Det. C. how he took the safety off the handgun, pointed the gun out in front of him at shoulder height and so when Mr. Beauchamp came out of his office, he saw Mr. Karim pointing the handgun at him.

I accept Mr. Beauchamp made some gesture that Mr. Karim interpreted as Mr. Beauchamp coming towards him. It is at that point I find Mr. Karim made the decision to fire the handgun that was pointed at Mr. Beauchamp’s chest. I also find that Mr. Karim knew he fired a number of shots into Mr. Beauchamp’s person. His decision to shoot Mr. Beauchamp multiple times in the chest and abdomen area is evidence from which I infer that Mr. Karim intended to cause Mr. Beauchamp bodily harm that he knew was likely to cause the death of Mr. Beauchamp and was reckless whether death ensued. I have no doubt that Mr.

Karim knew the danger of repeated firing of the handgun into Mr. Beauchamp’s person and persisted in that conduct, despite the knowledge of the risk. [ 76 ] In conclusion, I find the Crown has proven beyond a reasonable doubt that Mr. Karim had the state of mind for the offence of murder. Has the Crown proven beyond a reasonable doubt the murder was planned and deliberate? [ 77 ] The Supreme Court of Canada has said on a number of occasions that s. 231 of the Criminal Code is “... purely a classification

section and does not create a separate substantive offence. ... the designation of murder as being of the first or second degree is for the purposes of sentencing only.” R. v. Nygaard at para. 17 .

[78] Murder is first degree if, for example, it is planned and deliberate (see s. 231(2)), or if it is committed pursuant to anarrangement under which money is passed (see s. 231(3)). [79] In R. v. Smith, 2007 NSCA 19, the court considered s. 231(3) and held at paras. 137 and 139: 137 The requirement that the murder be committed "pursuant to an arrangement ..." means that the arrangement must have been inplace at the time of the murder: see R. v.

Sauvé, supra at paras. 151-153. ... 139 The trial judge told the jury that for an arrangement to exist, there had to be the quid pro quo of the recipient to cause or helpcause the death of another person. He also told them the murder must be committed pursuant to the arrangement (p. 3257). He provideddefinitions of the word "pursuant" which included "in accordance with" and "by reason of" or "done in consequence of." (p. 3257) Thetrial judge told the jury that for there to be an arrangement, the person who killed Mr.

Simmons must know that he is to be paid for doingthe killing; he must commit the murder in accordance with or by reason of an arrangement in which there is to be gain or benefit tohimself (p. 3258). He added: "... the person who killed Mr.

Simmons must know of the arrangement under which there is to be gain orbenefit to himself prior to the murder" (p. 3258) Each of these instructions made it clear that the arrangement had to have been in placebefore the killing. [80] The Crown did not rely on s. 231(3) in its closing argument although counsel for the accused made reference to it, inanticipation of the Crown’s closing argument.

There is no evidence of an arrangement under which money or anything of value passed inthis case. [81] Nygaard stands for the legal principle that “planning and deliberation” may be coupled with the mens rea requirement of s.229(a)(ii), so that a first degree murder conviction can be sustained by virtue of the combined operation of s. 231(2) and s. 229(a)(ii). [82] As an aside, this reasoning in Nygaard appears to me to be inconsistent with the Supreme Court of Canada’s reasoning in R. v.Ancio, (SCC), 1984 10 CCC (3d) 385. [83] The meaning of the phrase “planned and deliberate” is summarized in R. v.

P.K. 2006 ABCA 284 at paras. 7 - 10: 7 To justify a verdict of first degree murder, the Crown must prove beyond a reasonable doubt that the killing was planned anddeliberate: Criminal Code, s. 231(2). A bare sufficiency of evidence on planning and deliberation makes a verdict of first degree murderunreasonable: R. v. Denison (2001), 161 B.C.A.C. 169, 2001 BCCA 703 at para. 13. 8 A planned murder is one that was conceived and carefully thought out prior to being committed: Nygaard, (SCC),[1989] 2 S.C.R. 1074, at para. 18. It requires that a design or scheme be arranged beforehand: R. v.

Jacquard, (SCC),[1997] 1 S.C.R. 314 at para. 26. 9 A deliberate murder is one that is considered, not impulsive: R. v. More, (SCC), [1963] S.C.R. 522 at para. 35. Aperson commits deliberate murder when he thinks about the consequences and carefully thinks out the act, rather than proceedinghastily, rashly or impulsively: Jacquard, at para. 26. 10 A finding of planning and deliberation can be based on circumstantial evidence: R. v. Mitchell, (SCC), [1964]S.C.R. 471 at para. 41. A plan can be simple and need not necessarily be in place for a long period of time: Nygaard at para. 18.

If thecircumstantial evidence is equivocal or speculative on the issue of planning and deliberation, however, a first degree murder verdict isunreasonable: R. v. Duck, (1993), (MB CA), 85 Man.R. (2d) 91 (C.A.) at paras. 36 - 38.

[ 84 ] Based on Mr. Karim’s own statements to the undercover officers, he and Mr. Deer made a plan for Mr. Karim to go to the Morbank office and confront Mr. Beauchamp. To this end, Mr. Karim: i. Obtained the 22 caliber handgun and ammunition from Mr. Deer. ii. Used items purchased on January 15 to clean the gun. iii. Along with Mr. Deer, purchased sunglasses to disguise Mr. Karim’s appearance and a briefcase to look more like “a businessman” in downtown Calgary, and iv. Had Mr.

Deer drive him to the vicinity of 635 - 8 Avenue S.W. and wait until he returned to the car to make their escape. [ 85 ] The question then is, has the Crown proven beyond a reasonable doubt what the plan was to be at the Morbank office? I have reviewed Mr. Karim’s conversations with the undercover officers many, many times. While I am very suspicious I am unable to find beyond a reasonable doubt there was a carefully conceived plan to murder Mr. Beauchamp. My review of these conversations leads me to conclude the plan was equivocal as to the specific harm to be inflicted on Mr.

Beauchamp. [ 86 ] Based on this finding, I find the Crown has not proven beyond a reasonable doubt the classification of this murder as first degree murder. Mr. Deer [ 87 ] As I noted earlier in my decision, Mr. Karim’s statements to the undercover officers are not evidence against Mr. Deer. The evidence I may consider to determine the issues I must decide respecting Mr. Deer is as follows: i. The evidence of Mr. Deer’s relationship with Mr. Beauchamp including the series of emails in December, 2005. ii. The physical evidence including the evidence of Bruce Gunn and the CCTV security videos. iii.

The evidence of Cst. K. who was the undercover officer in the cell with Mr. Deer the morning following his arrest. iv. The testimony of Mr. Karim. As I explained earlier in my decision, I only accept those portions of Mr. Karim’s testimony that is consistent with this 2006 Mr. Big conversations unless otherwise stated. v. The evidence of Stuart Logan. [ 88 ] From the above evidence I find the following facts: i. Mr. Deer knew Mr. Beauchamp and the location of his office. Mr. Karim did not.

ii. Mr. Deer’s and Mr. Beauchamp’s business dealings resulted in a series of threatening emails and telephone calls between the two men in December, 2005, and Morbank’s position that Mr. Deer owed Morbank the balance of the commitment fee, which was approximately $16,000.00. iii. Mr. Karim arrived in Calgary on January 15, 2006 sometime in the afternoon at the request of Mr. Deer. iv. Mr. Karim and Mr. Deer purchased latex gloves and rubbing alcohol at 3:54 p.m. Mr. Karim testified the alcohol was purchased to clean the 22 caliber gun provided to him by Mr. Deer.

I find from this fact, that a plan had been made by Mr. Karim and Mr. Deer prior to the purchase of these items that Mr. Karim would confront Mr. Beauchamp at his office while armed with the gun. v. Mr. Karim and Mr. Deer purchased a briefcase, gloves and sunglasses at 8:43 p.m. I find these items were purchased by Mr. Deer and Mr. Karim as an attempt by the two accused to disguise Mr. Karim’s appearance, as well as make him look like a “businessman” when he entered the office building at 635-8 Ave. S.W. vi. I accept Mr. Karim’s testimony that Mr. Deer provided him with a 22 caliber handgun. vii.

I find, based on the evidence of Mr. Karim and Bruce Gunn, that the ammunition provided to Mr. Karim for the 22 caliber handgun was ammunition that belonged to Mr. Deer. I infer from the evidence surrounding the search of Mr. Deer’s home that Mr. Deer opened his gun safe to obtain this ammunition for Mr. Karim. viii. Mr. Deer drove Mr. Karim to downtown Calgary on the morning of January 16, 2006, parked his vehicle and waited until Mr. Karim returned to the vehicle. ix. Mr. Karim shot Mr. Beauchamp six times with the 22 caliber handgun. x. After the shooting, Mr. Deer and Mr. Karim returned to Mr.

Deer’s home where Mr. Karim shaved off his beard and changed his clothes. The two men drove to a location where Mr. Karim’s clothes and the gun were disposed of. Then, they drove to the bus depot. On route to the Bus Depot, Mr. Deer withdrew monies from a bank machine. [ 89 ] From these facts, I infer that Mr. Deer gave Mr. Karim the address of the Morbank office and Mr. Beauchamp’s name. Has the Crown proven beyond a reasonable doubt that Mr. Deer was a party to the murder of Mr. Beauchamp? [ 90 ] The position of the Crown is that Mr. Deer is party to the murder of Mr. Beauchamp. Counsel for Mr.

Deer submits the evidence does not establish the requisite intent for murder. [ 91 ] The Supreme Court of Canada recently discussed the law respecting the actus reus and mens rea of a party pursuant to s. 21(1) of the Criminal Code in R. v. Briscoe , 2010 SCC 13 . Justice Charron, writing for the Court, said at paras. 13 - 18: 13 Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable: 21.

(1) Every one is a party to an offence who

(

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reusand mens rea for aiding or abetting, however, are distinct from those of the principal offence. 14 The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages theperpetrator to commit the offence. While it is common to speak of aiding and abetting together, the two concepts are distinct, andliability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(

b) means to assist or help the actor. To abet within themeaning of s. 21(1)© includes encouraging, instigating, promoting or procuring the crime to be committed": R. v. Greyeyes, (SCC), [1997] 2 S.C.R. 825, at para. 26... 15 Of course, doing or omitting to do something that resulted in assisting another in committing a crime is not sufficient to attractcriminal liability. As the Court of Appeal for Ontario wrote in R. v. F. W.

Woolworth Co. (1974), (ON CA), 3 O.R. (2d)629, "one does not render himself liable by renting or loaning a car for some legitimate business or recreational activity merely becausethe person to whom it is loaned or rented chooses in the course of his use to transport some stolen goods, or by renting a house forresidential purposes to a tenant who surreptitiously uses it to store drugs" (p. 640). The aider or abettor must also have the requisitemental state or mens rea.

Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aidingthe principal offender to commit the crime. 16 The mens rea requirement reflected in the word "purpose" under s. 21(1)(

b) has two components: intent and knowledge. For theintent component, it was settled in R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, that "purpose" in s. 21(1)(

b) should beunderstood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in thecommission of the offence. The Court emphasized that "purpose" should not be interpreted as incorporating the notion of "desire" intothe fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed(Hibbert, at para. 35). The Court held, at para. 32, that the perverse consequences that would flow from a "purpose equals desire"interpretation of s. 21(1)(

b) were clearly illustrated by the following hypothetical situation described by Mewett and Manning: If a man is approached by a friend who tells him that he is going to rob a bank and would like to use his car as the getaway vehicle forwhich he will pay him $100, when that person is ... charged under s. 21 for doing something for the purpose of aiding his friend tocommit the offence, can he say "My purpose was not to aid the robbery but to make $100"?

His argument would be that while he knewthat he was helping the robbery, his desire was to obtain $100 and he did not care one way or the other whether the robbery wassuccessful or not. (A. W. Mewett and M. Manning, Criminal Law (2nd ed. 1985), at p. 112) The same rationale applies regardless of the principal offence in question.

Even in respect of murder, there is no "additional requirementthat an aider or abettor subjectively approve of or desire the victim's death" (Hibbert, at para. 37 (emphasis deleted)). 17 As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetratorintends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is aprerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v.

Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516,provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89): ... a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murderunder s. 229(a): R. v. Kirkness (1990), (SCC), 60 C.C.C. (3d) 97 (S.C.C.) at 127. The same analysis applies where it is alleged that the accused aided a perpetrator in the commission of a first degree murder that was

planned and deliberate. The accused is liable as an aider only if the accused did something to assist the perpetrator in the planned anddeliberate murder and if, when the aider rendered the assistance, he did so for the purpose of aiding the perpetrator in the commission ofa planned and deliberate murder. Before the aider could be said to have the requisite purpose, the Crown must prove that the aider knewthe murder was planned and deliberate.

Whether the aider acquired that knowledge through actual involvement in the planning anddeliberation or through some other means, is irrelevant to his or her culpability under s. 21(1). 18 It is important to note that Doherty J.A., in referring to this Court's decision in R. v.

Kirkness, (SCC), [1990] 3S.C.R. 74, rightly states that the aider to a murder must "have known that the perpetrator had the intent required for murder" (para. 88).While some of the language in Kirkness may be read as requiring that the aider share the murderer's intention to kill the victim, the casemust now be read in the light of the above-noted analysis in Hibbert. The perpetrator's intention to kill the victim must be known to theaider or abettor; it need not be shared. Kirkness should not be interpreted as requiring that the aider and abettor of a murder have thesame mens rea as the actual killer.

It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime,acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettormust intend that the principal offence be committed. [92] With these legal principles in mind, I turn to consider the first issue: has the Crown proven beyond a reasonable doubt that Mr.Deer was a party to the murder of Mr. Beauchamp? From the above facts, I find Mr. Deer assisted Mr. Karim in that: i. Mr. Deer and Mr.

Karim shopped together for the items purchased at London Drugs and Walmart. These items were purchased toassist Mr. Karim execute the plan at the Morbank office. ii. He provided the gun to Mr. Karim. iii. He provided the ammunition to Mr. Karim. iv. He drove Mr. Karim both to and from the place of the shooting, and v. He provided Mr. Karim with the location of the Morbank office and the name of Mr. Beauchamp. [93] The Crown must also prove that Mr. Deer must have known that Mr. Karim had the intent for murder. It is sufficient for theCrown to establish that Mr. Deer ‘armed with the knowledge of Mr.

Karim’s intention to commit the crime, acted with the intention ofassisting Mr. Karim in its commission.’ [94] Mr. Karim did not testify that Mr. Deer knew that Mr. Karim would , for example, “take care” of Mr. Beauchamp by shootingMr. Beauchamp a couple of times in the stomach and a few in the leg. [95] Rather, the gist of Mr. Karim’s testimony was that Mr. Deer told him these guys were coming after him in relation to themonies he owed Morbank, he thought he was going to be killed, and he didn’t know what to do. Mr. Karim suggested he could go andtalk to Mr. Beauchamp for Mr. Deer.

However, he would only do this if he had a gun for protection. Initially, Mr. Deer refused to accedeto this suggestion. Ultimately, he agreed so long as Mr. Karim took a small calibre gun and did “nothing stupid”. [96] I do not accept this evidence as it is not consistent with Mr. Karim statements to the undercover officers. [97] In cross-examination Mr Karim testified as follows: Q And it [the question] states,

I understand there was no plan, but you were going to do something? Do you remember Mr. Rauf asking you that question? A Yes. Q And under answer it says, I was going to do some damage . A Mm-hmm. Q Financial damage, physical damage, mental damage, threats, talk anything. But I know that I was going there for something. A Mm-hmm. Q You acknowledge giving that answer, right? A Yes, and it’s accurate. Q And then Mr. Rauf asks, at what would be line 11, And when you say physical damage, what kind of physical damage -- A Sorry to interrupt, what’s line 11? Q Line 11. You see number 10? A Yes, okay.

It’s just 5, 10, 15 and 20. There is no 11 though. Q Exactly. But this would be line 11, it is right below line 10. A Okay, okay. Q And there is a ’Q’ for question. And it says, And when you say physical damage, what kind of physical damage are you speaking of? A Mm-hmm.

Q And you remember Mr. Rauf asking you that question? A Yes. Q And you state, Either fist-to-fist damage, kicks, maybe shooting in the leg or the stomach, you know. In case of attack or arrogance. [emphasis added] A Yes. Q And you gave that answer at the first trial, correct? A Yes, I did. [98] I accept this testimony of Mr. Karim because it is consistent with parts of his conversations with the undercover officers. [99] As I do not accept Mr. Karim’s testimony on this issue except as just noted, I must consider whether the other evidenceestablishes beyond a reasonable doubt Mr. Deer knew Mr.

Karim’s intention to commit bodily harm was such that it was likely to causethe death of Mr. Beauchamp, and he acted with the intention of assisting Mr. Karim in that intention. [100] From the remaining evidence, I find Mr. Deer knew Mr. Karim would extort, intimidate, and/or assault Mr. Beauchamprespecting the commitment fee monies Mr. Deer owed Morbank . In addition, Mr. Deer knew Mr. Karim was in possession of a loaded22 calibre handgun. [101] I make these findings based on Mr. Karim’s testimony that Mr. Deer gave him the handgun and ammunition, Mr.

Karim’scross-examination set out above, and the evidence of the conversation between Mr. Deer and the undercover officer, Cst. K. Forexample, Mr. Deer told Constable K: 1.) he [Mr. Deer] should be in jail on assault too, but the guy died so it was murder; 2.) he didn’twant the guy to be killed or die; 3.) that the person who caused the death of Mr. Beauchamp wasn’t even supposed to get physical withthe guy. Rather, Mr. Deer wanted the person to give the victim a real stern talking to, to show the victim that you couldn’t treat peoplelike that without repercussions. The “guy” Mr. Deer spoke of was Mr.

Beauchamp; the “person” was Mr. Karim. [102] From this evidence, I cannot find beyond a reasonable doubt that Mr. Deer knew Mr. Karim had the intent required for murder.Rather, I find the Crown has established that Mr. Deer knew Mr. Karim had the intent for other offences such as intimidation, extortionand/or assault. [103] If the intent of an aider or abetter is insufficient to support a conviction for murder, the aider or abetter still may be convicted ofmanslaughter if the unlawful act he aids or abets is one he knows likely will cause some harm short of death. See R. v.

Kirkness, (SCC), [1990] 3 S.C.R. 74; R. v. Twigge, (1996) (SK CA), 148 Sask.R. 254 (C.A.) at paras 45-49. [104] The Supreme Court of Canada set out the specific test to apply in R. v. Jackson, (SCC), [1993] 4 S.C.R. 573.The court said: I turn first to Davy's potential liability for manslaughter as an aider and abettor under s. 21(1)(

b) and (c). A person is a partyto an offence if he or she aids or abets the commission of it. In this case, Jackson committed the offence of murder. It was open on theevidence for the jury to find that Davy aided and abetted him in that offence, and is guilty under s. 21(1)(

b) and (

c) of the Criminal

Code. If he possessed the necessary mens rea for murder he could be guilty of murder. In the event that the jury did not find the intentrequired for murder, the question arises whether and in what circumstances Davy could be convicted under s. 21(1) for the lesser offenceof manslaughter. The trial judge did not give the jury a specific direction that it could find Davy guilty of manslaughter as an aider and abettorunder s. 21(1) of the Criminal Code. The Court of Appeal held that this was an error. It held that the trial judge should have told thejury that s. 21(1)(

b) and (

c) of the Code would lead to a verdict of manslaughter if Davy did not have the mental state required formurder but the unlawful act which was aided or abetted was one he knew was likely to cause some harm short of death. This followsfrom the decision of this Court in R. v.

Kirkness, (SCC), [1990] 3 S.C.R. 74, at p. 88, per Cory J., where it was held thata person who aids and abets in an attack which results in a death may be guilty of manslaughter where that person does not have therequisite mens rea for murder but possesses the requisite intention for manslaughter, and where his co-accused is guilty of murder. (Seealso Wilson J., at pp. 96-97.) I agree with the Court of Appeal that the jury could have convicted Davy of manslaughter under these sections whileconvicting Jackson of murder.

I differ from the Court of Appeal, however, in the state of mind required to be guilty of manslaughter under s. 21(1)(

b) and(c). The Court of Appeal held that the test was a subjective appreciation that the act was likely to cause some harm short of death. Sincethe date of the Court of Appeal's decision, this Court has held that unlawful act manslaughter -- that is, the killing of a person whileengaged in an unlawful act -- does not require a subjective appreciation of the consequences of the act. The test is objective -- what areasonable person would have appreciated in all the circumstances. Nor is it necessary that the risk of death be foreseeable.

As long asthe unlawful act is inherently dangerous and harm to another which is neither trivial nor transitory is its foreseeable consequence, theresultant death amounts to manslaughter: R. v. Creighton, (SCC), [1993] 3 S.C.R. 3; see also R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944. I conclude that a person may be convicted of manslaughter who aids and abets another person in the offence of murder, wherea reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerousact which was being undertaken.

I further conclude that Davy might fall within this rule on the evidence presented at trial. [105] From my findings above, I find Mr. Deer assisted Mr. Karim in committing acts of general violence, which are unlawful acts.These acts were inherently dangerous in light of the fact Mr. Deer knew Mr. Karim was in possession of a loaded handgun. While Mr.Deer may have hoped Mr. Karim would not get physical with Mr. Beauchamp, a reasonable person would have appreciated in all thecircumstances that the taking of a loaded handgun to a situation where one is committing acts of general violence, is

an act that isinherently dangerous, and the harm to Mr. Beauchamp, which was neither trivial nor transitory, was its foreseeable consequence. [106] Based on this finding, I find Mr. Deer not guilty of murder but guilty of the included offence of manslaughter. Conclusion [107] In conclusion, I find Mr. Karim guilty of the second degree murder of Mr. Beauchamp, and I find Mr. Deer guilty ofmanslaughter in the death of Mr. Beauchamp.

Heard on the 22 nd day May, 2012 to the 26 th day of July, 2012. Delivered orally on the 21 st day of September, 2012. Dated at the City of Calgary, Alberta this 26 th day of September, 2012. E.A. Hughes J.C.Q.B.A. Appearances: M. Ewenson for the Crown C.I. Gonzalez for the Crown A. Iovinelli for the Accused Karim S.Y. Kothari for the Accused Karim J.M. Lutz for the Accused Deer A.L. Serink for the Accused Deer