R v Gerlitz, 2013 ABQB 661

Court of Queen ’ s Bench of Alberta Citation: R v Gerlitz, 2013 ABQB 661 Date: 20131113 Docket: 100537372Q2 Registry: Calgary Between: Her Majesty the Queen Crown - and - Christopher Henry Gerlitz Accused _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates Application by the Crown to Admit the Video Taped Evidence of Lucille Hetherington as a Principled Exception to the Hearsay Rule _________________________________________ ______________ Overview

[ 1 ] Christopher Gerlitz is charged in an indictment dated January 15, 2013 with 2 counts of making false or deceptive statements on tax returns, contrary to s. 239(1) (

a) of the Income Tax Act , 2 counts of fraud over $5,000, contrary to s. 380(1) of the Criminal Code ; one count of making a false document, contrary to s. 268(1) (

b) of the Criminal Code ; and 1 count of theft over $5,000, contrary to s. 334 of the Criminal Code. [ 2 ] On August 8, 2013, the Crown filed an application seeking to admit three out of court videotaped statements of Lucille Hetherington into evidence pursuant to the principled approach to the hearsay rule. These same statements were admitted at the preliminary inquiry pursuant to s. 540(7) of the Criminal Code . Mr. Gerlitz’s application to cross-examine Ms.

Hetherington, brought pursuant to s. 540(9) of the Code was dismissed by the Provincial Court Judge presiding at the preliminary inquiry. [ 3 ] This application was heard by me on September 17, & 18, 2013. The Crown called three witnesses, Doris Henn, James Thorson and Dr. Jennifer Stefanek. Mr. Gerlitz elected to call no evidence on this application. At the conclusion of oral argument, I reserved my decision. [ 4 ] On September 19, 2013, I advised the parties that the Crown’s application was allowed and indicated that written reasons would follow.

I was satisfied that the Crown had satisfied both the necessity and reliability requirements. The necessity requirement was met because Ms. Hetherington was ill and unable to attend court for the purposes of giving evidence. I also found that the statements met the threshold reliability requirement in that they were made under oath and videotaped and recorded. While admitting the three statements into evidence, I also ruled that Mr. Gerlitz would have the right to cross-examine Ms. Hetherington under controlled settings, namely via videoconference from the Peter Lougheed Hospital in Calgary.

This cross-examination took place on October 3, 2013. These are my reasons for decision. Facts [ 5 ] Lucille Hetherington (“Ms. Hetherington”) acted as a bookkeeper and accountant for Christopher Gerlitz and his corporations, Martial Arts Fitness Corporation and The Injury Institute Inc. In an affidavit filed in the preliminary inquiry as exhibit P-65, Ms. Hetherington swore that she did not feel she could testify in November 2012 due to her serious health problem, include a lung disorder which has left her dependent on an oxygen machine, kidney failure and diabetes. A letter prepared by her physician, Dr.

Wendy Stefanek, was filed at the preliminary inquiry. [ 6 ] The Crown’s application pursuant to s. 540(7) of the Criminal Code to admit the statements without the requirement of calling Ms. Hetherington as a witness at the preliminary inquiry was allowed. Mr Gerlitz’s application to cross-examine Ms. Hetherington pursuant to s. 540(9) was denied. [ 7 ] During the Canada Revenue Agency (“CRA”) investigation, Ms.

Hetherington was interviewed by the CRA on three separate occasions, namely February 17, 2010, October 1, 2010 and October 8, 2010. [ 8 ] Prior to taking each of the three statements, a CRA investigator warned Ms. Hetherington that it was a criminal offence to wilfully lie to an investigator or to make a false accusation against someone. She was also warned about the offences of perjury and fabricating evidence. She confirmed that she understood the consequences of making a false statement and solemnly affirmed to tell the truth.

The statements were audio recorded and videotaped and the audio recordings were transcribed. [ 9 ] According to the Crown, t he statements of Lucille Hetherington establish the following: a. She was hired by Christopher Gerlitz to prepare financial statements for Martial Arts Fitness Corporation and the Injury Institute for 2001 through 2005 (February 17 transcript, page 12). She had done work for Christopher Gerlitz’s father and mother (Interview 1, pages 8 and 9). b. Christopher Gerlitz needed the financial statements done for about five years (Interview 1, page 12).

He needed the financial statements to give to his lawyer for his law suit to show how getting hurt in a car accident had hurt his business (Interview 1, page 17). c. She communicated with Christopher Gerlitz mostly by e-mail (Interview 1, page 14 and Interview 2, page 30). Her e-mail address was brucech@shaw.ca (Interview 1, page 41 and Interview 2, page 28). He would bring the materials she needed like bank statements, cancelled cheques and invoices to her house (Interview 1, page 15 and Interview 2, pages 25 and 26).

If Lucille Hetherington had questions about the records, she would e-mail Christopher Gerlitz and sometimes he would answer her questions by writing explanations on the bank statements or receipts (Interview 2, pages 30 and 31). d. Her procedure was to go through the bank statements and tick off anything on the bank statement like a cheque and then look for the matching receipts and then enter them (Interview 1, page 18). She wrote her journal entries, using a “J” followed by a number, on the bank statements (Interview 2, pages 37 and 46).

She also put tick marks on the bank statements and her tick mark was a squiggle in the shape of an N or Z. She would make those marks on the bank statement as she went through the cheques (Interview 2, pages 37 and 38). e. When she had questions about the financial records of Martial Arts Fitness Corporation or the Injury Institute, she asked Christopher Gerlitz (Interview 1, pages 13 and 25). f. She identified her tick marks and handwriting on the seized documents (Interview 1, pages 29 and 30; Interview 2, pages 37 and 38; and, Interview 3, pages 4 and 5). g.

She made Shannon files which contain the invoices, bank statements and cash payout sorted month by month, as well as the three ring binders which contained the general journal and ledger, the financial statements, GST reports and corporate returns (Interview 3, pages 22 to 24). She provided the Shannon files and a copy of the binder to the client (Interview 3, bottom of page 23, top of page 24). h. Christopher Gerlitz paid her a visit one day with his wife and children and said he would like to remove everything from her computer. She gave him access to her computer (Interview 1, page 20).

i. Christopher Gerlitz was expecting at least 1.4 million dollars for his accident (Interview 1, page 56). [ 10 ] Doris Henn and James Thorson, both Criminal Investigation Division investigators at CRA, gave evidence during the voir dire regarding the circumstances under which the interviews were conducted. They also testified as to the accuracy of the transcripts and video recordings of the statement. Using footnote-like references on the transcripts of the interviews, both witnesses identified the various seized records being shown to the witness during the interviews. [ 11 ] The DVD containing Ms.

Henn’s interview with Ms. Hetherington on February 17, 2010 was marked as Exhibit V-4 during the voir dire . Similarly, two binders containing the transcript of Ms. Hetherington’s interview with Ms. Henn was marked as Exhibit V- 3. The DVD containing Mr. Thorson’s interview with Ms. Hetherington on October 1, 2010 was marked as Exhibit V-6, and a binder containing a transcript of this same interview was marked as Exhibit V-5. Finally, the DVD containing Mr. Thorson’s interview with Ms.

Hetherington on October 8, 2010 was marked as Exhibit V-8, and a binder containing the transcript of this same interview was marked as Exhibit V-7. [ 12 ] Dr. Wendy Stefanek, also gave evidence during the voir dire . Dr. Stefanek was qualified as an expert witness and permitted to give opinion evidence in relation to family medicine, as well as the assessment of disease and illness, and the management of common, chronic and life-threatening illness. Her two-page curriculum vitae was marked as Exhibit V-1. [ 13 ] Dr. Stefanek obtained her medical degree in 1998 from the University of Alberta.

She subsequently completed a residency in family medicine between 2002 and 2004. She has been Ms. Hetherington’s physician since 2007, and last saw Ms. Hetherington approximately two weeks prior to giving evidence in this proceeding. A letter prepared by Dr. Stefanek dated September 17, 2012 was marked as Exhibit V-2. [ 14 ] Dr. Stefanek testified that Ms. Hetherington’s medical condition, as reported in her September 17, 2012, letter had worsened. Specifically, her vision had deteriorated and her diabetes had worsened.

She has been a Type II diabetic for many years and requires insulin injections four times a day, including before and after every meal. Dr. Stefanek indicated that Ms. Hetherington has severe asthma and has difficulty breathing. She is currently using a ventilator 24 hours a day, 7 days a week to assist in forcing air into her lungs and assisting in taking carbon dioxide out of her lungs. The apparatus she uses to assist her in this regard is battery operated and has a battery life of approximately two to three hours. [ 15 ] Dr. Stefanek further stated that Ms.

Hetherington has renal failure that is getting worse and that she also suffers from kidney failure and high blood pressure. In 2002, she had a stent inserted to address a heart blockage caused by heart disease. Ms. Hetherington is also morbidly obese. Dr. Stefanek described her as “extremely incapacitated”, and is easily fatigued. She requires the aid of a wheelchair and/or walker to assist her in getting around. She also requires daily assistance from a home care worker, particularly to assist her in reading the blood glucose monitor. [ 16 ] According to Dr. Stefanek, Ms.

Hetherington suffers from serve osteoarthritis and sciatica resulting from a severe degeneration of her spine. Dr. Stefanek also described the emotional impact on Ms. Hetherington of all of these maladies. At sixty nine years of age, Ms. Hetherington is one of Dr. Stefanek’s most fragile patients. She suffers from daily pain and is forced to deal with her various medical issues around the clock. [ 17 ] Dr. Stefanek described the various medications that are prescribed for Ms. Hetherington. In response to questions posed on cross-examination by Mr.

Gerlitz, she indicated that none of these medication have any impact on her memory or cognitive functions. To the contrary, Dr. Stefanek described Ms. Hetherington as having a very good memory and as being “remarkably adept” at remembering things. [ 18 ] Dr. Stefanek testified that she did not feel that Ms. Hetherington could withstand the physical or emotional stress associated with a court appearance. Based on her own experience appearing as a witness in this proceeding, Dr. Stefanek stated that she could not imagine Ms. Hetherington going through this sort of stressful process.

She also expressed the view that Ms. Hetherington would not be able to sit in one place for several hours and that she would require the attendance of a paramedic throughout any required court appearance. Dr. Stefanek advised that while it might be possible to put in place safeguards to allow Ms. Hetherington to attend court, Dr. Stefanek did not think it was a good idea and that it carried some real health dangers for Ms. Hetherington.

She also indicated that she could probably not sit for more than an hour without a break and that her total time away from home, including transportation time, would be restricted to approximately three hours. [ 19 ] Dr. Stefanek provided additional evidence via telephone on September 18, 2013. At that time she expressed the view that Ms. Hetherington could possibly participate in the trial process via video conference from her home as long as the session was within a defined, limited time-frame and in the presence of her home-care nurse.

She stated that a session of one to two hours would be manageable, but not more. She also suggested that a morning session would be best. [ 20 ] While it was not possible to make arrangements for a video-conference link to Ms. Hetherington’s home, alternative arrangements were made at the Peter Lougheed hospital. Dr. Stefanek’s support for these arrangements were conveyed to the Court by the Crown. Issues

a) Do the three video-taped statements meet the necessity requirement of the principled approach to the hearsay rule in that the testimony is otherwise not available for trial?

b) Are the statements reliable given the circumstances under which they were made?

c) If the statements meet the necessity and reliability requirements of the principled approach to the hearsay rule, are there any

conditions which could be attached to their receipt so as to permit the accused some right of cross-examination? Analysis The Principled Approach to Hearsay Exceptions [21] The Supreme Court of Canada has recently reaffirmed the general exclusionary rule that “hearsay evidence is presumptivelyinadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion” (R v Baldree, 2013 SCC 35 at para31).

As Justice Charron stated in R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787: The general exclusionary rule a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statementmade by a person who has not been seen or heard, and who has not been subject to the test of cross-examination.

The fear is that untestedhearsay evidence may be afforded more weight than it deserves (para 56; cited Baldree at para 30). [22] Pursuant to the principled approach to hearsay first introduced in R v Khan, (SCC), [1990] 2 SCR 531,hearsay evidence may still be admitted if sufficient indicia of reliability and necessity are established on a voir dire (Baldree, at para 34).The onus is on the party seeking to adduce the evidence to show these twin criteria are met on a balance of probabilities (Khelawon, atpara 47). [23] The requirement of necessity recognizes that it is not always possible for evidence to be given in its optimal form in court andsubject to contemporaneous cross-examination (Khelawon, at para 49).

Rather than losing the value of the evidence, society’s interest ingetting at the truth may require the evidence in the best form available, even if it is hearsay ( see R v Couture, 2007 SCC 28, [2007] 2SCR 517 at para 79). Such evidence may be necessary “to enable all relevant and reliable information to be placed before the court, sojustice may be done” (R v F(WJ), (SCC), [1999] 3 SCR 569 at para 31).

McLachlin J (as she then was) explained inF(WJ) the concept of necessity in the following terms: 31. [t]he witness’s incapacity, for whatever reason, to produce meaningful evidence, faced the court with the spectre of either receivingher out-of-court statements without the test of cross-examination, or of leaving her potentially reliable and clearly relevant knowledge ofthe crimes with which the accused was charged altogether unutilized. [24] Necessity in this context means “reasonably necessary” (Khan, at para 29).

The unavailability of the declarant and theinability to obtain evidence of a similar quality at trial generally satisfies this criterion (R v U(FJ), (SCC), [1995] 3 SCR764 at para 35; R v Hawkins (SCC), [1996] 3 SCR 1043 at para 69). [25] The second criterion of reliability is to ensure the integrity of the trial process. Hearsay evidence will have to be sufficientlyreliable to overcome its typical dangers, such as the lack of testing by cross-examination (Khelawon, at para 49).

This criterion willusually be met either by showing that the content of the statements are trustworthy because of the way in which they came about or byshowing that in the circumstances the ultimate trier of fact will be in a position to sufficiently assess their worth (Couture at para 80; R vBlackman, 2008 SCC 37, [2008] 2 SCR 298 at para 35). For the purposes of deciding admissibility in a voir dire, the trial judge assessesthe “threshold reliability” of the evidence; if the evidence is admitted, the trier of fact will ultimately determine the weight if any to givethe evidence (ibid at paras 3, 50).

The presence of a motive to lie may be relevant in assessing the threshold reliability of a statement (R vStarr, 2000 SCC 40), [2000] 2 SCR 144 at para 216). [26] Finally, even if the hearsay evidence meets the two criteria of necessity and reliability, the trial judge still has the discretion toexclude it where the probative value is outweighed by its prejudicial effect (Khelawon, at para 49). The Lack of Opportunity to Cross-Examine [27] The lack of opportunity to cross-examine is one of the recognized dangers of hearsay evidence, however, the courts haveestablished that it is not fatal to admissibility.

As Charron J. stated in Khelawon: 48. The adversarial trial process, which includes cross-examination, is but the means to achieve the end. Trial fairness, as a principle offundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedlyincludes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns:see R. v. Mills, (SCC), [1999] 3 S.C.R. 668, at paras. 69-76.

In the context of an admissibility inquiry, society’s interestin having the trial process arrive at the truth is one such concern. [28] Since the principled approach requires sufficient indicia of the necessity and reliability of the hearsay evidence, the lack ofcross-examination will go to weight, not admissibility (R v Smith, (SCC), [1992] 2 SCR 915 at 935).

The concerns ofthe accused about credibility can be addressed by submissions as to the weight to be accorded to the evidence and the quality of anycorroborating evidence, as well as a proper caution to the jury (Khan, at 547). [29] In one of the cases submitted by the Crown in this voir dire, R v Nicholas, (ON CA), 70 OR (3d) 1 (CA),the prospective utility of cross-examination was raised as another issue. In that case, as the complainant in a sexual assault charge hadnot seen her assailant, there would be limited value in cross-examination.

The police statement and 911 call were found sufficientlyreliable on their own and their probative value outweighed any potential prejudice to the accused. Does the illness of a witness meet the necessity criterion? [30] The necessity criterion is usually satisfied when the witness is unavailable (see R v B(KG), (SCC), [1993] 1

SCR 740 at 796). Chief Justice Lamer stated in Smith that the criterion “must be given a flexible definition, capable of encompassingdiverse situations” (at 933-34). McLachlin J. references Wigmore on Evidence, vol 5 (Chadbourn rev 1974), §1420 where she states inF(WJ) that 33. [i]t is clear that for Wigmore, necessity arises from the unavailability of the witness’s testimony in the courtroom. The reasons forwhich the witness’s courtroom testimony is not available are incidental and flexible – “death” or “some other cause”.

The reasons for thewitness’s inability to testify, in cases of doubt, help the judge decide whether testimonial evidence is truly not available. However, thereasons remain incidental. Necessity, in the final analysis, arises from the fact that the witness’s courtroom testimony is not available.

Itis this unavailability that triggers the dilemma that underlies the exceptions to the hearsay rule – to prohibit out-of-court statementswithout cross-examination, or to receive the out-of-court statements provided they evince some degree of reliability. [Emphasis added.] [31] In Hawkins, Lamer CJ and Iacobucci J refer to the categories of absence set out in

section 715 of the Criminal Code, RSC1985, c C-46 as a “helpful guide to the types of circumstances under which it will be sufficiently necessary to consider the admission ofthe witness’s former testimony” without restricting the precise content of “unavailability” (at para 72).

These categories, which form thebasis for permitting evidence from the preliminary inquiry to be read in at trial, include death, insanity, illness (“so ill that he is unable totravel or testify”), or absence from Canada (Criminal Code, supra at s 715(1)). [32] In R v Ménard, (ON CA), 29 OR (3d) 772 (CA), aff’d (SCC), [1998] 2 SCR 109, anexpert witness was said to be too ill to travel and had a letter to this effect from his physician.

Defense counsel argued the requirements atsection 715 were not met, but Arbour JA found the preliminary inquiry testimony was admissible at common law under the principledapproach to hearsay. The Crown had discharged the onus in showing it was reasonably necessary to admit the hearsay; the reliability ofthe statement was not disputed. [33] There are cases where the witness becomes too ill during trial to be, or continue to be, cross-examined and the issue iswhether their direct examination testimony should be struck out.

Cromwell JA (as he then was) in R v Hart , 1999 NSCA 45, citesWigmore at 133-135, supra, for the more flexible approach to admitting the testimony where the illness that prevents cross-examinationis not attributable to the witness by voluntary act or to the cross-examiner’s own consent or fault. He then proceeds to connect this to theprincipled approach to hearsay exceptions. [34] In HMTQ v Ellard, 2004 BCSC 899, one of the Crown witnesses become ill and was unable to complete cross-examination incourt or by video link.

A doctor testified that the witness suffered from post-traumatic stress disorder and could experience furtheranxiety attacks if he was required to participate further in the trial, even if special measures were taken. As this was a re-trial of theaccused, the Crown applied to have the witness’s testimony from the first trial admitted as evidence. The Court reviewed the law aroundthe necessity criterion and found that the criterion was satisfied since the witness was unavailable for testifying due to illness.

Since thewitness was fully cross-examined at the first trial, the reliability criterion was also satisfied for admitting the prior testimony. [35] Finally, the Manitoba Court of Appeal in R v Thomas (RJ), 2009 MBCA 85 upheld the decision of the trial judge to allowinto evidence the previously videotaped statement of a witness who allegedly did not recall the events as a result of memory loss arisingfrom meningitis. The statement was made to police following a preliminary interview and was sworn. A doctor called by the defencetestified that he could find no medical reason for the witness’s claim of memory loss.

Nevertheless, the trial judge and the Court ofAppeal found the necessity criterion was met: 29. I have little hesitancy in stating that in the circumstances of this case, the judge was correct in finding that necessity to adduceBishop’s videotaped statement had been established and that is whether his lack of memory was feigned or not. I am satisfied that on theissue of necessity itself, not much turns on whether or not Bishop was feigning memory loss. The result remains the same inasfar as thetrial process is concerned; the evidence was not available.

What was important is the fact that the evidence was highly relevant and wasout of reach of the court. [36] The more serious issue in this case was whether the out-of-court statement was sufficiently reliable given the lack ofopportunity for cross-examination. Applying Khelawon, the Court of Apply found that this deficiency alone was an insufficient groundon which to reject the admissibility of a statement.

There were sufficient indicia of reliability in that the statement was made under oath,the witness was warned of the potential consequences for being untruthful, there was no evidence of inconsistent statements, andcorroboration could be found in the evidence of other witnesses. [37] The cases submitted by the Crown in this voir dire both deal with complainants in sexual assault case who were unable totestify at trial due in part or in whole to the trauma of the alleged assaults.

Regardless of the cause of the illness, the proposition remainsthat a witness who is unavailable to testify in court meets the necessity criterion. The reasons for the unavailability are incidental; whatmatters is that the witness’s courtroom testimony is unavailable: (F(WJ) at para 33). In Nicholas, Abella JA states: 94.

Although it is rare for a complainant to be found unable to testify, where the hearsay statements were found to be reliable and wherethe evidence of the psychologist that the complainant could not testify was uncontradicted, the trial judge was entitled to conclude thatthe necessity and reliability tests have been met. [38] Though the trial judge in that case found admitting the statements would be too prejudicial to the accused, this aspect of thejudge’s ruling was overturned by on appeal.

Abella JA found that the trial judge had based his conclusion “on an erroneous principle,namely, that he was obliged to defer to defence counsel assertions about the utility of cross-examining G.W. in spite of his own seriousmisgivings about its value” (at para 95). In the absence of any evidence indicating actual prejudice, there was no basis for excluding thestatements which had already been found necessary and reliable (at para 101). [39] I find that the Crown has established necessity in relation to the three video-taped statements taken on February 17, October 1and October 8, 2010.

The evidence of Lucille Hetherington is not otherwise available given her current physical condition. I accept theevidence of her physician, Dr. Stefanek, that subjecting Ms. Hetherington to the rigours of a likely lengthy court appearance is notadvisable given the associated dangers to her health.

[ 40 ] In my view, these circumstances fall squarely within the range of “diverse situations” described by Lamer C.J. in Smith . September 6, 2011 videotaped statement. The complainant has recanted. She never adopted the videotaped statement in Court. Although the videotaped statement is similar to the substance of some of her preliminary inquiry evidence, it contains details not included in any of her later sworn testimony. [ 41 ] As for reliability, all of these statements are video-taped and taken under solemn affirmation. At the outset of each interview, Ms.

Hetherington was explicitly warned of the possible consequences of providing false statements. [ 42 ] The Supreme Court in R v Devine , 2008 SCC 36 at para. 19 noted that the difficulty of testing or assessing the reliability of an out-of-court statement may be substantially alleviated in cases where the declarant is available for cross examination on the earlier statement, particularly where an accurate record of the statement can be tendered in evidence.

The court focuses in such instances not so much on the reasons to believe the statement is true, as on whether the court will be in a position to rationally evaluate the evidence. [ 43 ] In this instance, I am satisfied that Ms. Hetherington is able to submit to some cross-examination in controlled circumstances outside of the courtroom. While her fragile health does not allow her to actually come to the court facility, I am satisfied that cross- examination under controlled circumstances, i.e. in a hospital setting with specified time parameters, is feasible. Dr.

Stefanek has confirmed that such arrangements would address any health risks associated with a likely lengthy court appearance. As the same time, providing Mr. Gerlitz with an opportunity to cross examine this important Crown witness affords him the right to test and challenge this evidence. [ 44 ] I am satisfied that the statement is sufficiently reliable to be admitted in evidence. Because the statement was videotaped, the jury will be in a position to assess Ms.

Hetherington’s demeanour during the taking of the three statements. [ 45 ] Significantly, the accused has the opportunity to cross examine the complainant on the circumstances surrounding the taking of the statement, as well as on its content.

The complainant’s availability to be cross examined on the statement enables the jury as trier of fact to rationally evaluate the evidence. [ 46 ] In balancing probative value over potential prejudice, I conclude that, generally, the probative value of the videotaped statement outweighs any potential prejudice. [ 47 ] In conclusion, I am satisfied that threshold reliability is met in that the truth and accuracy of the statement could be sufficiently tested through cross examination.

The Court is in a position to rationally evaluate the videotaped statements. [ 48 ] For all of the foregoing reasons, the Crown’s application is granted with the proviso that Mr. Gerlitz is to be afforded a right of cross-examination under controlled circumstances and for a block or blocks of time of no more than ninety minutes each. Heard on the 17 th and 18 th day of September, 2013. Decision delivered orally on September 19, 2013 with written reasons to follow. Dated at the City of Calgary, Alberta this 12 th day of November, 2013. M. David Gates J.C.Q.B.A. Appearances: Barbara A.

Mercier & Tyler Lord for the Crown Christopher Gerlitz appearing on his own behalf.