R v Petrin, 2016 ABQB 375

Court of Queen ’ s Bench of Alberta Citation: R v Petrin, 2016 ABQB 375 Date: 20160630 Docket: 140398751Q1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Joshua Petrin Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1). Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict.

Editorial note: The restriction on publication ended March 10, 2017. _______________________________________________________ Reasons for Decision on the Crown’s Application to Introduce Similar Fact Evidence of the

Honourable Mr. Justice M. David Gates _______________________________________________________ [ 1 ] The Accused, Joshua Petrin, is charged with the first degree murder of Bryan Gower, alleged to have taken place on or about September 26, 2012 at or near Lloydminster, Alberta. His trial is scheduled to commence before a jury on February 29, 2016 at St. Paul, Alberta. [ 2 ] The Crown seeks to adduce evidence of similar acts to prove Petrin’s motive and intention, and to rebut an anticipated defence of mistake.

The Crown says that there is a distinctive pattern of similar behavior on the part of Petrin relative to the murder of Lorry Santos, the murder of Robert Roth, and the conspiracy to murder Jasmyne Night and Steven Hunter. [ 3 ] In support of its application, the Crown called four witnesses: Kyle Halbauer, Brad Fox, Jordan St. Amant and Colten Menard. All four individuals are former subordinates of the Accused in the White Boys Posse (“WBP”), a gang dedicated to drug trafficking in Lloydminster and other communities in Alberta, Inuvik, Northwest Territories, as well as Saskatoon, Saskatchewan.

All four witnesses understood the Accused to be the leader of the WBP within the territory of their activities. [ 4 ] The parties filed an extensive Agreed Statement of Facts (Exhibit #1) in relation to this application, a copy of which is attached to these Reasons. [ 5 ] The position of the Defence is that the similar fact evidence proposed by the Crown is highly prejudicial and that the moral and reasoning prejudice to the Accused far outweighs the probative value of the evidence.

The Defence says that this evidence of misconduct related to prior instances of criminal conduct is presumptively inadmissible and that the Crown has failed to establish on a balance of probabilities that it ought properly to be admitted in evidence. [ 6 ] This application was heard by me on February 22-25, 2016 at St. Paul, Alberta. At the conclusion of oral argument, I reserved my decision to February 29, 2016. At that time, I ruled that the evidence was admissible subject to the redaction of certain references to the identity of Ms.

Santos, the unintended victim of the September 25, 2012, Saskatoon murder committed by Kyle Halbauer and Randy O’Hagan. I also directed the redaction of certain evidence relating to indignities effected to the body of Robert Roth after he was fatally shot on October 21, 2012. These are my reasons for decision. The Crown’s Application The Gower Murder – The Charge Before the Court [ 7 ] The Crown’s case against the Accused is largely based on the evidence of Kyle Halbauer.

On December 2, 2013, Halbauer plead guilty to second degree murder in the death of Bryan Gower and received a sentence of life imprisonment with the period of parole ineligibility set at 13 years. This sentence is to be served consecutively with the life sentence he previously received following his guilty plea to the offence of first degree murder relative to the death of Lorry Santos, a sentence carrying an automatic period of parole ineligibility of 25 years.

On November 30, 2015, Randy O’Hagan also pled guilty to second degree murder in the death of Gower and received a sentence of life imprisonment with the period of parole ineligibility set at 11 years, consecutive to the 25 year period of parole ineligibility associated with his earlier guilty plea to the first degree murder of Lorry Santos. [ 8 ] Halbauer testified that he and his cousin Brad Fox were tasked with determining whether Bryan Gower, a WBP customer, had stolen drugs from a WBP runner. They were told that they had to “take care of him”.

They determined that Gower had pulled a gun and robbed one of the WBP runners of drugs in his possession. Halbauer indicated that this is a bad thing in the drug world and that you look weak if you are perceived as allowing people to get away with this sort of behaviour. Halbauer passed this information to the Accused via X-Shield Blackberry message, the most common vehicle used to communicate with the Accused. [ 9 ] Halbauer and the Accused discussed the need to take care of this problem and that Gower had to be dealt with accordingly.

Halbauer understood this to mean that he had to be injured or worse, murdered. This discussion with the Accused took place four days prior to the murder. The Accused told Halbauer that he was to meet up with Randy O’Hagan. Together with O’Hagan, Halbauer met with the Accused a few times over this period of time and it was agreed that Halbauer and O’Hagan would take care of it [ 10 ] Two days prior to the murder, the Accused provided directions and a time for Halbauer to meet someone to obtain a weapon.

Halbauer obtained a .357 from an unknown individual at the location specified by the Accused and stashed it outside of Lloydminister. The Accused messaged him several times to see if he had actually obtained the weapon. [ 11 ] Subsequently, Halbauer received an X-Shield message to meet the Accused at a particular location on the edge of town. Once he reached the designated spot, he followed the vehicle driven by Accused to a back road where the Accused went into the bush and retrieved an AR-10 assault rifle and a flare gun/grenade launcher.

The Accused told Halbauer that the weapons should help with the mission and to make sure to put them away. Halbauer interpreted this to mean that he was to deal with the problem. Halbauer later stashed the .357 and the AR-10 in the bush. He subsequently obtained ammunition for the firearms. Halbauer and O’Hagan test fired both weapons the night before the murder. [ 12 ] The Accused did not provide any explicit instructions on how to kill Gower.

The Accused, unhappy that they had not succeeded in killing Trevor Cromartie in Saskatoon, as more fully described below, provided the overall direction and Halbauer and O’Hagan worked out the plan. Halbauer knew what he was supposed to do when the Accused told him to take care of Gower. This was criminal lingo used to try and be discrete.

[ 13 ] On the night of the murder, the stashed weapons were moved to a location closer to town. By chance, O’Hagan, who was involved in drug sales that night, received a message from Gower that he wanted to buy drugs. Gower was told to go and wait at a specified location near the racetrack. Halbauer and O’Hagan parked their vehicle on a backroad northwest of the racetrack and then advised Gower of their location. Initially, Gower drove by in his vehicle. Gower then backed up, as directed, parked his vehicle, and walked towards Halbauer and O’Hagan’s vehicle. O’Hagan was in the ditch behind his vehicle.

As Gower walked towards the vehicle, Halbauer shot him in the head and killed him. Halbauer heard some rustling in the vehicle and both he and O’Hagan started shooting. Unbeknownst to Halbauer and O’Hagan, Gower had been accompanied by Michael Bexson, who exited the vehicle and fled the scene on foot once the shooting started. [ 14 ] Halbauer and O’Hagan received numerous messages from the Accused prior to the shooting asking if it was done. In a one hour period, Halbauer received over 10 messages from the Accused. He felt pressure from the Accused to get it done. [ 15 ] Halbauer and O’Hagan fled the scene.

They stashed the weapons on the south side of Lloydminster. They also messaged the Accused to advice that everything had been taken care of. The Accused told them to go to Edmonton to get cleaned up and to get rid of the vehicle. The Accused sent numerous messages the following day while they were still in Lloydminster. [ 16 ] Later that same day, they met up with the Accused in Edmonton. They abandoned their now cleaned-up vehicle in the parking lot at West Edmonton Mall. The Accused told them that he would get them a new car in a few days.

The Accused was satisfied and happy when Halbauer told him about the murder of Gower. [ 17 ] Halbauer received no benefit from the Accused or the WBP in terms of his role in the murder of Gower. He testified that he viewed the task as building himself up in the gang and showing that he could follow instructions. The Proposed Similar Fact Evidence [ 18 ] The Crown seeks to introduce the following similar fact evidence: (

a) The evidence of Kyle Halbauer and Colten Menard relating to the Accused’s direction to kill Trevor Cromartie in Saskatoon on September 25, 2012, and the subsequent murder of Lorrie Santos; (

b) The evidence of Kyle Halbauer and Colten Menard relating to the Accused’s direction to kill Jasmyne Night and/or Steven Hunter between May 1, 2012 and August 31, 2012; (

c) The evidence of Brad Fox and Jordan St. Amant relating to the Accused’s involvement in the death of Robert Roth on October 20, 2012, including a series of saved X-Shield Blackberry messages sent by the Accused to St Amant the day prior to Roth’s murder. [ 19 ] The Crown says that the probative value of this evidence outweighs the prejudicial effect on the Accused’s interests and that the evidence should be placed before the jury in this trial. The Santos Murder – September 25, 2012 [ 20 ] There is no dispute that Lorrie Santos was not the intended target of this murder.

Rather, the evidence reveals that Trevor Cromartie, a WBP member was the intended victim. Cromartie was senior to Halbauer within the organization, just below Petrin in the hierarchy. As such, he was a “food boss” within the WBP responsible for collecting money from, and distributing drugs to, “runners” or street-level traffickers within the WBP. [ 21 ] The Accused told Menard that Cromartie needed to be dealt with; that he had placed a $40,000 bounty on Cromartie; that he needed to be “taken out”; and that they needed to “body this guy” The Accused later told Menard to obtain three straps” (guns).

The Accused provided Menard with the pin number for a gun supplier in Edmonton. Menard arranged for a driver to go to Edmonton with his Blackberry to pick up the guns . The Accused then told Menard to get O’Hagan to go and get the guns ready, at which point O’Hagan met with the driver, kept two guns and gave the third to Menard to re-stash. Menard obtained ammunition from his farm and stashed it at a location for later pick up by O’Hagan. The following day, the Accused sent Menard an X-Shield message advising that he was on his way to Saskatoon with O’Hagan “to take care of business”.

Menard interpreted this to mean to go and kill Cromartie. [ 22 ] Halbauer was living in Saskatoon in September 2012. While in Saskatoon, he received an X-Shield message from Petrin. He was very upset that Cromartie had apparently taken off and stolen money and a gun. The Accused told Halbauer to go to Lloydminster to pick up Randy O’Hagan and then to meet the Accused in Saskatoon, where Cromartie was reported to be living at a known address.

O’Hagan brought a Glock 40 and a Smith and Wesson 9 mm handgun to Saskatoon, that were provided to him by Menard. [ 23 ] When the Accused met with Halbauer and O’Hagan in Saskatoon, he told them that Cromartie had taken off with a gun and money while staying at Petrin’s home and while Petrin was in hospital. The Accused was angry and agitated and told Halbauer and O’Hagan that they were to take care of Cromartie. The Accused told them to catch Cromartie by surprise in the middle of the night by breaking down the door where he was reported to be staying, and then take care of him.

Halbauer interpreted this as meaning that Cromartie was to be killed or badly injured. [ 24 ] The following day, the Accused instructed Halbauer’s Saskatoon partner, Brydon, to go to Home Hardware to purchase a sledgehammer. The Accused, together with Halbauer and O’Hagan purchased gloves and masks at Canadian Tire that same day. [ 25 ] Halbauer and O’Hagan went to the area where Cromartie was believed to be staying later that night. They spent a couple of hours scouting out the area but were unable to find Cromartie. They returned to their residence early the next morning and reported the results to the Accused.

The following night they returned to the same area. Prior to leaving they had a conversation with the Accused

during which the Accused related that he felt betrayed by Cromartie and wanted him to be shown a lesson. He wanted it done that night. The Accused loaned them his car. They scouted out the area where Cromartie was believed to be staying for a further period of time, again without any sighting. [ 26 ] The plan was to shoot Cromartie as he left the residence. As it was getting light and people in the neighbourhood were starting to leave for work, O’Hagan went up to the door of the house under surveillance, rang the doorbell and then started shooting.

O’Hagan emptied the entire clip of the Glock 40, while Halbauer fired several shots with the Smith & Wesson 9 mm gun from across the street. Halbauer and O’Hagan fled the scene, with O’Hagan removing the barrels from the two guns and throwing them in the river along the way. The rest of the guns were then hidden in the bush near Halbauer’s Saskatoon residence. [ 27 ] Halbauer felt pressure from the Accused to get the job done that night. The Accused sent a series of X-Shield messages that night asking if they had seen Cromartie and whether or not it was done.

The Accused left Saskatoon very shortly after Halbauer and O’Hagan reported on what had happened. Halbauer described the Accused as “kind of happy” and at ease when given the news. Halbauer felt that the pressure was then off them. [ 28 ] After leaving Saskatoon the next day, the Accused sent an X-Shield message to Menard telling him to clear O’Hagan’s “tally” (debt) owed the Accused in the amount of $8000-$8500 at the time. [ 29 ] Lorrie Santos, a resident of the house being stalked by Halbauer and O’Hagan, was mistakenly killed from gunshot wounds as a result of the shooting.

Cromartie was never at the residence. The Roth Murder [ 30 ] In October 2012, the Accused told Jordan St. Amant that he was to go Inuvik, NWT to replace Menard as the WBP person in the community. St. Amant had no say in the decision. He was given four hours to get his things together. The Accused wanted him to take just over one kilogram of crack cocaine to Inuvik for further distribution. The crack cocaine was worth $160,000 wholesale and hundreds of thousands of dollars on the street. [ 31 ] Robert Roth was hired to drive St. Amant and the crack cocaine to Inuvik.

He was paid $5,000, $2,500 up front and the balance upon return to Alberta. WBP member Nick (Nikolas) Nowytzkyj gave St. Amant an envelope of cash to give to the person in Edmonton who was to provide the crack cocaine. He also provided St. Amant with a map and told St. Amant to conceal the drugs somewhere outside of Inuvik once they arrived. Roth drove St. Amant to Inuvik with the drugs concealed in a tool box in the back of the truck. St. Amant maintained contact with Nowytzkyj during the trip. [ 32 ] St. Amant concealed the drugs in the bush a few kilometers outside of Inuvik. Soon after their arrival, St.

Amant, Roth, together with Roth’s son, were arrested by the police in Inuvik on suspicion of having drugs in their possession. They were all released from custody the following day. Roth left Inuvik shortly thereafter and returned to Lloydminster. [ 33 ] When St. Amant subsequently returned to back to the stash to retrieve the drugs, they were missing. St. Amant notified the Accused and Nowytzkyj and continued to search for two or three days, without success. The Accused directed St. Amant to come to see him in Edmonton and told him that he might as well immediately kill himself. St.

Amant did not go to Edmonton, fearing that he was going to be killed for losing the drugs. [ 34 ] Suspicion almost immediately turned to Roth given that he had observed the general area where St. Amant had stashed the drugs. [ 35 ] St. Amant and the Accused exchanged a series of X-Shield messages on October 19, 2012, over a period of two hours. St. Amant believed that the Accused was in China at the time and the Accused indicated at one point that he could be back in Canada within 24 hours as “this is the worst possible thing that could have happened”. The Accused was very angry, at one point telling St.

Amant that he “fucked up so badly” and that “u might as well kill urself right now”. When St. Amant advised that he could somehow fix the situation but “first I wanna kill that fucking driver”, the Accused responds: “U think I give a fuck about a driver bein dead? I want his whole fucking family dead”. At another point he says “I will torture bob until he tells me what happened w that shit!!!!” and subsequently “OK we r going to torture this goof for days and get the fucken shit out of him”. In a further message, the Accused states “I am so fucking angry right now! No one fucken rips me off!!

This clown has no fucken clue what is going to happen to him! And Lloyd fucken getting it too. Fuck him and fuck everyone!! Fuck u too!!!! Fuckkkkkk!!!!” Later, the Accused tells St. Amant that he is cancelling a trip to the factory in China and catching the next flight back to Canada “to come back to u fuck ups and deal w this”. In the last exchange, St Amant answered in the affirmative when the Accused asked “so it’s safe to say that Bob jacked the shit eh?” [ 36 ] Roth returned to Lloydminster unaware that the drugs were missing.

He continued to have contact with unknown WBP members as he attempted to obtain payment for the balance owing to him for making the trip to Inuvik. He told family members that he was meeting with some guys from the city in the early evening of October 20, 2012, to be paid what he was owed. He spoke to his son at 6:31 p.m. on that date and advised that he was following “some guys” from the city. He told his son that if anything happened to him, his son was to remember the name of a certain person and where that person lived. Roth was never seen or heard from again.

His son was unable to recall the name or the city mentioned by his father during the conversation. [ 37 ] On October 20, 2012, the decapitated body of Roth was found in a ditch west of Innisfree, Alberta. The head was found several days later in an alley in Edmonton. The cause of death was found to be multiple gunshot wounds to the head. [ 38 ] On November 1, 2012, Randy O’Hagan contacted the police and provided a sworn statement in which he indicated that Nowytzkyj told him that he had shot a guy and cut off his head. He also disclosed that he had “bleached” the scene of the murder.

Further investigation revealed that O’Hagan had made statements to others that he had sawed the head off of Roth’s body. [ 39 ] Police recovered a bow saw and a half empty package of bar towels at the scene of Roth’s body. Video surveillance revealed

Nowytzkyj purchasing similar items in Wainwright on October 20, 2012, as well as a 5.38 litre container of bleach. When Roth’s headand other items were subsequently located in Edmonton, they were all noted to be drenched in bleach. [40] Nowytzkyj and O’Hagan were both charged with the murder of Robert Roth. The charge against O’Hagan was withdrawn onJanuary 4, 2016. The charge against Nowytzkyj was scheduled for trial in St. Paul commencing on April 18, 2016. However, on April19, 2016, he pled guilty to the offence of manslaughter and was sentenced to a period of imprisonment of twenty years.

The Conspiracy to Murder Night and Hunter [41] Jasmyne Night was a member of the WBP and involved in street-level trafficking. In the spring of 2012, there were issueswith Ms. Night within the WBP. According to Colten Menard, “she was kind of off and on doing shady stuff, using lots of drugs and thatwas like frowned upon. She was also dating ...a different crew’s worker. That was also an issue.

So there was lots of problemssurrounding Jazmyne and a lot of talk about her.” The “shady stuff” consisted of not answering her Blackberry, disappearing for days,not moving product and just being generally lazy. [42] During the summer of 2012, the Accused contacted Menard via X-Shield and told him that he had thrown a tracking deviceon Night’s vehicle and wanted Menard to get Halbauer and a gun and go and deal with her. According to Menard, the Accused told himto “light up the whole vehicle. Shoot up the vehicle.

Like, it was mainly to kill Chuck, but he said, if you hit Jazmyne, I don’t give a fuck,kind of thing...I think it was like make an example out of Chuck for Jazmyne, but if she gets shot too, it’s fine.” He was “pissed off”because Night was not responding to her Blackberry, was not selling her product, frequently going up to Edmonton and “just being lazy”.The Accused wanted Halbauer to kill them as he was a new member and this would show his commitment to the WBP. [43] Menard relayed the Accused’s direction to Halbauer.

Menard believed that Halbauer did not really want to do it, but also didnot want to face the possible consequences of voicing his reluctance to complete the assignment or, even deal with not doing it or sayingthat he did not want to do it. Halbauer had known Night for years and had previously worked with Hunter with the LEPS gang. [44] That same day Menard retrieved a previously stashed .40 calibre Glock. He obtained the weapon via a contact or directionsfrom the Accused.

After picking up Halbauer, the two waited for directions from the Accused as to the whereabouts of Night and Hunter,then reported to be en route to Lloydminster from Edmonton. The Accused was monitoring their progress via the tracking device he hadplaced on their vehicle. The Accused initially directed them to one side of the city but a delay in the tracking system resulted in thembeing in the wrong spot. The Accused then directed them to Randy O’Hagen’s residence. Halbauer was friends with O’Hagan and triedto tell the Accused that he could not do it at Randy’s house as there were children inside.

The Accused then told them to wait until Nightand Hunter emerged from the residence and then “light up the vehicle kind of thing”. [45] Halbauer exited the vehicle and walked down the alley searching unsuccessfully for Night’s vehicle. Menard received amessage from the Accused advising that Night and Hunter had departed and they should go to another address he provided. When theygot to the second address, Halbauer jumped out of the vehicle and went to check. He did not see Night or Hunter, but saw childrenplaying in the area.

The Accused then sent a message to Menard and Halbauer advising that he was at Night’s house and he was talkingwith her. He told them not to worry about it and that he and Night were trying to sort things out. Menard and Halbauer took this to meanthat the plan was to be aborted. [46] The Accused pressed Menard throughout the day to get the job done.

At one point he told Menard that if Halbauer did notwant to do it, Menard was to do it himself and bring Halbauer to the city to be dealt with by the Accused. [47] The Accused’s trial on the charge of conspiracy to murder Jasmyne Night and Steven Hunter is currently set for trial in St.Paul commencing May 1, 2017. Neither Menard nor Halbauer were charged in relation to this matter. The Law [48] Evidence of misconduct beyond the circumstances alleged in the indictment related to prior instances of bad character and/orprior criminal conduct is inadmissible.

This general exclusionary rule was set forth in the 1894 decision of the Privy Council in Makin v.Attorney-General for New South Wales, [1894] A.C. 57.

While the initial rule referred to “criminal acts”, this has been expanded toinclude similar facts of a discreditable nature: R v Robertson, (SCC), [1987] 1 SCR 918. [49] The exclusion of general propensity or disposition evidence is well-established in Canada: Morris v The Queen, (SCC), 1983 2 S.C.R. 190; R v Morin, (SCC), 1988 2 S.C.R. 345; R v B (C R), (SCC), 1990 1SCR717; R v Arp, (SCC), 1998 3 SCR 339; R v Handy, 2002 SCC 56. [50] The potential for prejudice to an accused, distraction of the jury and the time requirements to allow this type of evidence willalmost always outweigh its probative value.

As the Court stated in Handy (at para 38), “It is excluded notwithstanding the general rulethat all relevant evidence is admissible.” Sopinka J. described the basis for the exclusionary rule in B v (C R) (at p. 744): The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s actionon the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man hasassaulted and a pedophile has engaged in pedophilic acts.

Yet the policy of the law is wholly against this process of reasoning. [51] The Court in Handy recognized that the exclusionary rule admitted a narrow exception of admissibility. At para. 41, the Courtconcluded that there may be situations where the “evidence of previous misconduct may be so highly relevant and cogent that itsprobative value in the search for truth outweighs any potential for misuse”. [52] Criminal trials have an important truth seeking function that must be balanced against the fair trial interests of an accused. InMakin, Lord Herschell L.C. described this as follows:

On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissibleif it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitutethe crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. [53] However, the Court in Handy signalled the need for caution in admitting proposed similar fact evidence.

At para. 150, itstated: “A criminal justice system that has suffered some serious wrongful convictions in part because of misconceived notions ofcharacter and propensity should not (and does not) take lightly the dangers of misapplied propensity evidence.” [54] The Court articulated the test regarding the admissibility of similar fact evidence as follows (at para. 55): Similar fact evidence is thus presumptively inadmissible.

The onus is on the prosecution to satisfy the trial judge on a balance ofprobabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs itspotential prejudice and thereby justifies its reception. [55] To be admissible, similar fact evidence must be relevant to some other issue beyond disposition or character. Again quotingHandy (at para 74): The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated.

It is thereforeincumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate...The relativeimportance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. [56] The required degree of similarity in assessing probative value will vary depending on the issues in the particular case. Thedrivers of cogency in an identification case will not be the same as in a case where the similar fact evidence is offered to prove a differentissue: R v Carpenter (1982), (ON CA), 142 DLR (3d) 237 (Ont.

CA) at p 244. [57] In Handy, the Court identified the following “connecting factors” between the similar facts to the circumstances set out in thecharge:

(1) Number of occurrences of the similar acts;

(2) Proximity in time of the similar acts;

(3) Extent to which the other acts are similar in detail to the charged conduct

(4) Circumstances surrounding or relating to the similar acts;

(5) Any distinctive features unifying the incidents;

(6) Intervening events;

(7) Any other factor which would tend to support or rebut the underlying unity of the similar acts. [58] The Court also identified countervailing facts, including the inflammatory nature of the similar acts and whether the Crowncan prove its point with less prejudicial evidence. It is also appropriate to consider whether the proposed similar fact evidence involvesmore reprehensible conduct than the actual charges before the court (para. 140).

Here, the conduct is similar in that similar acts and thecharge before the court is the same, murder. [59] Propensity at the admissible end of the spectrum involves situations where “the pattern of circumstances in which an accusedis disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistakenidentity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact.” Atthe same time, repeated conduct “in a particular and highly specific situation’ can “provide[s] a compelling inference that may fill aremaining gap in the jigsaw puzzle of proof”. (at para. 91) [60] In my view, the following key principles emerge from the Supreme Court’s decision in Handy: a.

The trial judge as gatekeeper is entitled to take into consideration the credibility of the similar fact evidence. Ultimateassessment of credibility is for the jury, but the trial judge must be satisfied that the threshold of being “reasonably capable of belief” hasbeen met. (para 134); b. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood ofcoincidence (para. 42); c.

The policy basis for the exception to the general rule is that the probative value of the evidence exceeds prejudice becausethe force of similar circumstances defies coincidence or other innocent explanation. (para. 47); d. As the similar facts become more focused and specific to circumstances similar to the charge, the probative value ofpropensity becomes more cogent (para. 48, 87); e. “Substantial dissimilarities may dilute probative strength and, by compounding the confusion and distraction, aggravate theprejudice” (para 127); f.

Cogency may be derived from repetition rather than distinctiveness (para. 131); g. Moral prejudice addresses the risk of an unfocussed trial and a wrongful conviction. “The forbidden chain of reasoning is to

infer guilt from general disposition or propensity” (para. 139) The concern is that the verdict may be based on prejudice rather than proof, and thereby undermine the presumption of innocence. The question to be asked is whether the evidence has serious potential for moral prejudice; h.

Reasoning Prejudice focuses on the potential for distraction of the jury from their proper focus on the charge before then and the potential consumption of time in dealing with a number of other incidents; i. “Probative value and prejudice pull in opposite directions on the admissibility issue and their conflicting demands must be resolved” (para. 149); j. The alleged similar facts are not required to be virtually conclusive of the guilt of the accused on the principal charge. This imposes too high a standard on a judge engaged in a determination of admissibility only (para. 94-97).

Analysis Purpose for which Similar Fact Evidence is Sought to be Adduced [ 61 ] Similar fact evidence must be relevant to some others specific issue beyond disposition or character in order for it to potentially meet the test for admissibility. The Crown must clearly identify the live trial issues in relation to which the similar fact evidence is said to relate. In the overall assessment to be undertaken by the court, the relative importance of those specific issues in the trial is a factor to be taken into consideration.

Ultimately, the court must be satisfied that the probative value of the inferences sought to be drawn exceeds the likely prejudice created by the admission of the evidence. Such inferences must accord with common sense and the unlikelihood of coincidence. The starting point is that similar fact evidence is presumptively inadmissible. [ 62 ] In this instance, the Crown says that there is a distinctive pattern in the similarities that exist relative to the Accused’s motive and intentions in the within matters, as well as the three other offences.

According to the Crown, the Accused directed the murder of Gower, Roth and Santos in terms of the location, timing and methodology, as well as the selection of the actual killer. Likewise, he directed the timing, location, methodology and the selection of the intended killers relative to the planned, but unexecuted, killing of Night and Stevens. [ 63 ] In view of the fact that both the Crown and the Defence referred to the so-called Handy factors, I propose to assess the issue of probative value verses prejudice using the Handy factors as a guide.

I would simply add that I agree with counsel that the court in Handy did not suggest that these listed factors were intended to be an exhaustive. In other situations, other factors might well be appropriate for consideration. The Probative Value of the Evidence – The Handy Factors

a) Number of Occurrences [ 64 ] In this instance, the Crown refers to three other instances of alleged similar conduct on the part of the Accused – the Santos murder (September 10, 2012); the Roth Murder (October 20, 2012) and the conspiracy to murder Night and Hunter (summer 2012). As the Court stated in Handy , at para. 128 , “an alleged pattern of conduct gains strength in the number of instances that compose it.” The Court also referred to the fact that cogency may be based on repetition rather than distinctiveness.

b) Proximity – Time and Place [ 65 ] All of these incidents took place within a six month period and, indeed, the Santos and Roth murders, as well as the murder of Bryan Gower, took place within the space of six weeks during the summer of 2012. The direction to kill Ms. Knight and Mr. Hunter was also given during the summer of 2012. [ 66 ] I am satisfied that there is also geographic proximity in this instance in that the murders all took place in and around the Lloydminster area. Mr. Gower was murdered on a backroad just outside of Lloydminster; Mr.

Roth was murdered just west of Innisfree, a community approximately 100 kilometers east of Lloydminster, while the murder of Knight and Hunter was to take place on a road leading into Lloydminster. Ms. Santos was murdered in Saskatoon, a distance of 275 kilometers east of Lloydminster. All of these communities fell within the territory of the WBP.

c) Similarities [ 67 ] The Crown concedes that there is no “magic bullet” in this instance – no “fingerprint”- that links the proffered similar acts to the circumstances of the offence charged. However, the Crown relies on the following similarities in support of its contention that there is a distinctive pattern of similar behavior on the part of the Accused in relation to the Gower murder and the three other offences sought to be introduced as similar fact evidence. (

i) Victims/Intended Victims Connected to the WBP and the Drug Culture [ 68 ] All of the victims, or intended victims, were connected to the WBP and the drug culture. The Crown also contends that all of these individuals, were either murdered, or targeted for murder, as a result of problems they were believed to be creating for the WBP’s drug operation.

[ 69 ] Bryan Gower was a drug user and customer of the WBP. Gower was causing problems for the WBP in that he was believed to have pulled a gun and stolen drugs from a WBP drug dealer. The Accused told Halbauer to find out what was happening relative to this situation. Halbauer met with the Accused about four days prior to the murder, once he had confirmed that the accusation against Gower was correct and discussed with the Accused the need to take care of him (Gower).

Halbauer understood this to mean that Gower was to be injured or worse, murdered. [ 70 ] Trevor Cromartie, the intended victim in the Santos murder, was a member of the WBP and at a level directly below the Accused. He replaced Colten Menard in Lloydminster when Mr. Menard went to Inuvik, N.W.T. and was involved in “loading the loaders”, in other words, distributing drugs to lower level WBP distributors in the Lloydminster area. Cromartie was suspected to be a rat by both the Accused and Menard. He was also suspected of having stolen drugs and money from the WBP. [ 71 ] Robert Roth was a driver for the WBP.

He was given $5,000 to transport Jordan St. Amant and a kilo of crack cocaine to Inuvik in October 2012. When the stash of crack cocaine disappeared, valued at $160,000 wholesale, both the Accused and St. Amant believed that Roth had stolen the drugs. [ 72 ] Jasmyne Night was a longstanding member of the WBP who occupied a position below that of the Accused, as well as Kyle Halbauer and Colten Menard. She was involved in drug sales for the WBP. Steven Hunter was her boyfriend and a member of the rival LEBS gang, also involved in drug trafficking in the same territory as the WBP.

Night was believed to be “shady”, not answering her phones or X-Shield and spending time in Edmonton where her whereabouts and activities were unknown. There were concerns that she was lazy and not moving product (drugs). (ii) Use of Firearms [ 73 ] The murder of Gower involved a firearm, as did the murder of Santos (Cromartie) and Roth. The planned killing of Night and Hunter was also to involve the use of firearms.

In each instance, save for the Roth murder, there is clear evidence that the Accused assisted the principals by actually providing those firearms. [ 74 ] Gower and Santos were both killed with firearms supplied by the Accused. The firearms in the possession of Halbauer and Menard to kill Night and Hunter had previously been supplied to Menard by the Accused. Robert Roth was also killed as a result of several gunshot wounds, but there is no evidence before the court as to the source of the firearm used by Nikolas Nowytzkyj (“Thick”) in the killing.

Nikolas Nowytzkyj, a WBP member, pled guilty to manslaughter in relation to the death of Roth on April 19, 2016. [ 75 ] According to Halbauer, the Accused was involved in supplying he and Randy O’Hagen with two guns to kill Gower. The first gun, a .357 Magnum revolver, was received by Halbauer from an unknown individual outside of Lloydminster. The Accused provided the directions as to the time and place Halbauer was to go to obtain the gun approximately two days prior to the murder. The Accused messaged Halbauer several times to confirm that the gun had been received.

The second gun, an AR-10 assault rifle, was received directly from the Accused who retrieved it from the bush and then handed it over to Halbauer, telling him that it should help with the mission. [ 76 ] Menard gave evidence that he retrieved a .40 cal Glock from a stash of 5 or 6 guns that he had somewhere outside of Lloydminster. The Glock was the handgun that he retrieved in order to follow through with the Accused’s direction to “go deal with her” (Night). All of these guns had been obtained from the Accused who provided contact information and directions on how the guns could be picked up.

On a few occasions, the Accused added the cost of guns to Menard’s tally of money owing. [ 77 ] Menard also gave evidence that the Accused provided contact information for him to obtain three guns for someone in N.E. Edmonton. Menard arranged for a driver to retrieve the guns using Menard’s blackberry. The Accused then told Menard to get Randy O’Hagan to go and get the guns ready. O’Hagan obtained the guns and gave one of them, a Glock, to Menard to wrap in cellophane and stash. Halbauer later saw O’Hagan with two guns – a Glock .40 calibre, and a Smith and Wesson 9 mm. handgun.

These same guns were used in the Santos murder. (iii) Mode of Communication [ 78 ] All four Crown witnesses described regular communications with the Accused through text messages sent via Blackberries loaded with X-Shield encryption software. Petrin supplied Halbauer and others with a Blackberry equipped with this encryption application, X- Shield, which was accessed via a secret password.

The Blackberry users programmed contact lists into their devices to identify who was sending them messages The use of the encryption software and fictitious contact names was intended to keep communication secret between gang members. Most of the people that Halbauer dealt with in WBP also had Blackberries with similar encryption software installed. [ 79 ] Both Halbauer and Menard referred to instances where they communicated with the Accused via X-Shield even when they were in the same room with him. Jordan St. Amant gave evidence that the Accused would not let anyone else have access to his Blackberry.

All four witnesses testified that the Accused had several nick names or user names that they programmed into their Blackberries to identify X -Shield messages from him, including “Bro”, “Usual Suspects”; “Unusual Suspects”, “Slater”, and “Al”. [ 80 ] Exhibit #2 contains screenshots of a lengthy message exchange between the Accused and Jordan St. Amant on October 19, 2012. St.

Amant identified the user name “usual suspects” as one of the names he assigned to incoming Blackberry messages received from the Accused. (iv) The Accused’s Directions to Others to Commit the Offences [ 81 ] In the within matter, the murder of Gower, the Accused told Halbauer to “take care of him” and “take care of Gower.” As previously indicated, Halbauer interpreted this as meaning that Gower had to be injured or murdered. I accept the Crown’s contention

that the Accused used similar language or lingo when providing instructions to WBP members relative to the killing of Santos and Roth and the directions to kill Night and Hunter. [ 82 ] In the case of Roth, the Accused’s text messages to St Amant contain more explicit language, including: “first I wanna kill that fucking driver”; “U think I give a fuck about a driver being dead?

I want his whole fucking family dead”; “I will torture bob until he tells me what happened w that shit!!!!”; and “we r going to torture this goof for days and get the fucken shit out of him”. [ 83 ] In the case of Cromartie, the Accused tells Menard and Halbauer to “get it done” and “take care of T.J.” [ 84 ] In the case of Night and Hunter, the Accused tells Menard to “go grab Halbauer and a strap and go deal with her”. Menard interpreted this as the Accused wanting “me to go get somebody to kill her”.

In an X-Shield message to Menard, the Accused told him to get Halbauer to do it as a way for a new member of the organization to show his commitment. The Accused also said to “shoot them up”, “ambush them when they come into Lloyd” and to “light up the vehicle kind of thing.” [ 85 ] In the case of the Gower murder, as well as the murder of Santos (Cromartie) and the conspiracy to murder Night and Hunter, the Accused was in regular X-Shield communication with the assigned killers inquiring as to whether it was done yet.

d) Dissimilarities [ 86 ] The Defence properly focuses on what it contends are significant dissimilarities between the alleged words and actions of the Accused relative to the Gower murder and his alleged words and actions relative to the Santos (Cromartie) murder, the Roth murder, and the conspiracy to murder Night and Hunter. [ 87 ] First, the Defence says that the words attributed to the Accused by the various Crown witnesses as evidence of him providing a direction to kill the various targets varies from one case to another.

In short, he contends that the words used by the Accused are not the same in each instance. Combined with the ambiguity of what the words were intended, and interpreted, to mean negatively impacts the probative value of the evidence. [ 88 ] The Defence also points to other alleged dissimilarities, including the fact that the Santos and Gower murders, as well as the conspiracy to murder Night and Hunter, were carried out by individuals other than the Accused, each involving a somewhat different methodology or execution plan.

The Defence says that what happened in each instance is quite dissimilar one with the other. [ 89 ] The Crown acknowledges that the Accused never directed any of his associates “how” to kill the targets, simply offered directions to get it done. In some instances, he assisted the principals by providing firearms.

Rather, the common feature is motive as well as the form and content of the “directions” issued by the Accused, as well as his underlying reasons for ordering the killings. [ 90 ] In this regard, the Defence also points to the fact that different vehicles were used in the Santos murder and the Gower murder, as well as the planned ambush of Night and Hunter. [ 91 ] Further, the Defence says that the so-called “problems” being caused by the targets were different and cover a fairly broad range of issues – stealing money and a gun (Cromartie); stealing drugs (Roth); robbing WBP runner(

s) and trying to steal drugs from them (Gower); not answering phone/messages (Night/Hunter). [ 92 ] The Defence also points to the fact that Halbauer did not receive any direct compensation for his killing of Gower or Santos. Likewise, he did not receive any direct compensation for his involvement in the pursuit of Night and Hunter in conjunction with the Accused’s direction that they were to be killed.

The Defence says that this stands in sharp contrast to the reward provided to Ryan O’Hagan following the Santos murder, when the Accused told Menard to wipe out O’Hagan’s tab, an amount of $8,000 to $8,500 at the time. [ 93 ] Finally, the Defence also points to the fact that the victims were of both genders and of various ages. [ 94 ] The Crown says that the dissimilarities referred to by the Accused are not compelling. For the most part, I accept the Crown’s submission in this regard.

As the court in Handy pointed out, the search for similarities is a question of degree and not every dissimilarity is fatal in a similar fact application. Indeed, at p. 932, Binnie J. points out that even dissimilar acts can support compelling inferences depending on the underlying issue in question. [ 95 ] In my view, the fact that the victims were of both genders is not a significant difference. Gower, Roth and Cromartie, the intended victim in the Santos murder, were all men, as was Stephen Hunter.

Lorrie Santos, while female, was an accidental victim in circumstances where the intended victim was clearly Trevor Cromartie. While I acknowledge that Jasmyne Night, one of the intended victims of the conspiracy to commit murder, was a female, there is some evidence that Stephen Hunter, a member of a rival gang, may have been the principle target.

Even if Night was an intended target, the fact that she was of a different gender is not a compelling difference under all of the circumstances. [ 96 ] I do not accept the defence suggestion that the fact that O’Hagan was rewarded for his involvement in the Santos murder, as opposed to Halbauer who received no reward for his role in the Gower and Santos murder, or his involvement in the conspiracy to kill Night and Hunter, amounts to a significant dissimilarity.

There is some evidence that Halbauer, a relative new-comer to the WBP, was being “tested” in terms of his loyalty and commitment to the group during this time period. In my view, the testing and rewarding of loyalty are not actually dissimilar, but rather two different points on the same spectrum. [ 97 ] I am not persuaded that the range of “problems” presented by the various victims represents a dissimilarity of any consequence in these circumstances. The unifying feature of each situation was that it represented an issue or problem for the Accused’s leadership and control of the WBP drug trafficking operation.

While the problems may have been of varying degrees, all represented challenges to the WBP organization and its leader.

[98] I am also not persuaded that the fact that different vehicles were used in the various incidents is of any consequence in thecircumstances. As more fully described below, it does not take away from the striking similarities that do exist. [99] Finally, the Defence points to the dissimilarity of language reportedly used by the Accused in directing the murders. Thelanguage attributed to the Accused relative to the Gower and Santos murders, as well as to the conspiracy to murder Night and Hunter,was described by a number of the witnesses as “code” or lingo in order to deflect suspicion or unwanted attention.

This is consistent, inmy view, with other evidence that WBP members used lingo when discussing drug trafficking activities. While the words used by theAccused may have varied from one situation to the other, it seems clear that they were all interpreted the same way by the recipients ofthe communication, i.e. a direction from the Accused to kill someone. There is nothing equivocal in the language employed by theAccused in his X-Shield messages with St. Amant. While the messages employing some lingo, they were more explicit and, as such,require little

interpretation. I am satisfied that the dissimilarities that may exist in the various messages originating with the Accused donot significantly diminish the similarities. [100] The Crown concedes that the Accused was not directly involved in the actual the Santos, Roth or Gower Murders. They alsoconcede that the Accused was not personally involved in the planned ambush and killing of Night and Hunter. In each case, the Crownsays that the Accused left the details how to complete or fulfill his direction to kill the targets to those assigned to complete the task.

Thesimilarity upon which the Crown relies lies in the Accused’s direction that the killing should take place, as well as his actions infacilitating access to guns and his follow-up with the principals after-the-fact to, amongst other things, confirm that the killing had takenplace. [101] I am not satisfied that the alleged dissimilarities “destroyed the striking similarities” that have otherwise been established. See Rv Hatton, (1978), (ON CA), 39 CCC(2d) 281 (Ont CA) at p. 301.

I am also not satisfied that the dissimilarity said toexist between the conspiracy to commit murder charge and the act of first degree murder alleged in the indictment, and the two othermurders alleged, destroys the similarity in terms of the Accused’s conduct in directing the killing. While it is clear on the evidencebefore me that Menard and Halbauer did not follow through with this particular direction, this in no way takes away from the nature andcharacter of the Accused’s direction that Night and Hunter were to be killed.

See Hatton at p. 300; R v Morris (1970) 54 Cr.App.R. 69(CA). [102] In R v B (L); R v G (M A) (1977), (ON CA), 116 CCC (3d) 481 (Ont CA) Charron J.A. (as she then was)noted that in these types of circumstances, “it is important to consider which similarities are truly compelling”, and further that “thesimilarities or dissimilarities between the sexual acts that are alleged here are, of course relevant, but often not as compelling as thecircumstances surrounding the incidents.” (p. 499-500). While this particular case does not involve allegation of sexual impropriety, theprinciple is nonetheless applicable.

In my view, the circumstances surrounding these incidents, namely the words and actions of theAccused as regards motive and/or intention, are what is compelling, not the details as to how others acted upon the words of theAccused. Similar Fact Evidence Reasonable Capable of Belief [103] Both the Crown and Defence agree that the Court must instruct itself in accordance with the decision of the Supreme Court in Rv Vetrovec, (SCC), [1982] 1 SCR 811, in determining whether or not the proffered evidence might reasonably be true.

Aso-called Vetrovec warning involves instructing the trier of fact, whether judge or jury, that the testimony of accomplices or otherunsavoury witnesses should be approached with great caution. In such situations, it is wise for the trier of fact to look for otherconfirming evidence before finding an accused guilty.

The trier of fact might well ask himself or herself whether or not the confirmingevidence strengthens his/her belief that the witness is telling the truth. [104] The law is clear that in the absence of collusion or collaboration, the evidence of one Vetrovec witness can confirm theevidence of another Vetrovec witness. [105] It is clear that some form of Vetrovec warning will be required relative to many of the Crown’s key witnesses, certainly all ofthe four witnesses called on the voir dire. Halbauer is a convicted murderer.

He, together with Randy O’Hagan, were both convicted offirst degree murder in the deal of Santos. He received a sentence of life imprisonment with no eligibility to apply for parole for a periodof 25 years. Menard, Fox and St. Amant are all in the witness protection program. All three were relocated by the program and receivedfinancial support for a period of one year following their entry into the program. This support consisted of payment of rent and utilityexpenses and an allowance to cover food and other miscellaneous expenses.

All three individuals have a criminal record, though none oftheir largely drug-related convictions involve offences of dishonesty. However, all four witnesses were drug users or addicts at the timeof their involvement with the WBP and were heavily involved in the drug trafficking trade. [106] The Defence raises a related issue in opposing the Crown’s application to adduce similar fact evidence.

The Defence says thatthe Accused is already subject to significant prejudice as a result of the Crown’s evidence regarding the illegal activities of the WBP,generally, and the Accused, specifically, relative to trafficking in drugs and guns, threat of violence and actual violence directed towardsothers.

While the Accused concedes that this evidence must inevitably be adduced given the narrative associated with the death ofGower, the Defence says that this prejudice will be greatly increased if the Crown is permitted to adduce the similar fact evidence. [107] The test on an application to admit similar fact evidence requires a careful balancing of the probative value of the evidenceagainst its potential prejudice to an accused.

In general, I accept the Defence contention that the evidence to be adduced in this case inrelation to the death of Gower will involve frequent references to the illegal activities of WBP gang members, including the Accused.This evidence forms part of the narrative and/or context in terms of what led to the murder of Gower. See: R v Walker (1994) (ON CA), 90 CCC (3d) 144 (Ont CA) at p. 152; R v S (P) (ON CA), 2000, 144 CCC (3d) 120 (Ont CA)at para. 30; R v MacDonald (1990) (ON CA), 75 CR (3d) 238 (Ont.

C.A.) p. 248: The evidence of the appellant’s involvement in narcotic trafficking was admissible evidence that provided the context for the homicide.The evidence showed that not only the appellant but all of the Crown witnesses were involved in the business, so that the relative effect

on the appellant’s character would have been minimal. Moreover, the trial judge gave instructions to the jury that the evidence could not be used to conclude that the appellant was a person of such bad character as to have committed the crime charged. [ 108 ] The jury in this case will obviously have to be carefully instructed on the limitations on their use and reliance on so-called evidence of bad conduct.

Specifically, they will need to be told that however much they may disapprove of some or all of the conduct of the Accused relative to his leadership role in the WBP gang, they may not engage in the prohibited form of reasoning that his involvement in illegal drug and other activities means that he is guilty of first degree murder. [ 109 ] The Defence also suggests that none of the evidence offered by the Crown through the witnesses Halbauer, Menard, St.

Amant and Fox is reasonably capable of belief given their admitted criminal activities as members or affiliates of the WBP, including drug trafficking, threats and intimidation directed towards others, trafficking in guns and in the case of Halbauer, the murder of both Santos and Gower. The Defence says that none of this evidence survives a properly applied Vetrovec warning and is not saved through the existence of any confirmatory evidence that emerges from the evidence of other Vetrovec witnesses. Similarly, the Defences urges me to find that the text messages attributed to the Accused by St.

Amant are so prejudicial that they should not be allowed to go before the jury. [ 110 ] The Crown, on the other hand, urges me to look at each story told by these four witnesses and see how their respective accounts fits together – is each story reasonably capable of being true? As such, the Crown refers to the consistency between the evidence of Halbauer, St.

Amant, Menard and Fox as regards the structure and organization of the WBP; the role of the Accused within that organization; the drug trafficking activities of the WBP; and the form and content of their communication with the Accused via X-Shield messenger. [ 111 ] The Crown also points to the fact that each of these witnesses have provided a number of sworn witness statements to the police and/or testified under oath in other proceedings.

i) Halbauer gave evidence regarding the Gower murder at both the preliminary inquiry and the trial of O’Hagan, as well as the preliminary inquiry relative to the within matter. Further, he gave sworn evidence at the preliminary inquiry held earlier this year in conjunction with the Accused’s charge of conspiracy to murder Night and Hunter.

Finally, he gave sworn evidence at the trial of O’Hagan for the first degree murder of Lorry Santos. ii) Menard also gave sworn evidence at the trial of O’Hagan for the first degree murder of Lorry Santos and at the Accused’s preliminary inquiry in conjunction with his charge of conspiracy to murder Night and Hunter. iii) Fox gave sworn evidence at both the preliminary inquiry and trial of O’Hagan on the charge of first degree murder. iv) St Amant gave a sworn statement to the police relative to the within matter. [ 112 ] The Crown says that all of these previous statements given to the police, as well as prior sworn testimony related to the events in question here, were disclosed and/or available to the Defence in preparing to cross-examine each of these witnesses.

The Crown urges me to consider the consistency of their evidence throughout, as evidenced by the small number of occasions that they were successfully challenged regarding a prior statement or prior sworn evidence. [ 113 ] The Crown relies on the screen saver “shots” from St. Amant’s blackberry (Ex. #2) containing his text message exchanges with the Accused on October 19, 2012, as providing independent confirmatory evidence of the witnesses’ evidence regarding communications with the Accused via X-Shield messenger. This evidence is compelling and clearly relevant.

While I agree with the Defence that it is prejudicial, that fact alone is not a proper basis to exclude the evidence. [ 114 ] Finally, the Crown relies on the contents of the Agreed Statement of Facts as containing confirmatory evidence regarding the key details regarding the murders of Santos, Roth and Gower. [ 115 ] In Handy , at para. 134 , Binnie J. dealt with the role of the trial judge in determining whether the proffered evidence was reasonably capable of belief as follows: In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury.

However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration. Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief. [ 116 ] I am satisfied that this threshold of reasonably “capable of belief” has been met in this instance.

While the credibility of the four Crown witnesses is ultimately an issue for determination of the jury, a limited assessment of that evidence is required at this stage of the proceedings in conjunction with my determination as to whether or not this evidence is reasonably capable of belief. [ 117 ] In my view, these witnesses provided cogent and consistent evidence regarding the hierarchy and organization of the WBP gang, the Accused’s leadership role in the organization, and the activities of the WBP gang.

They also gave comprehensive and consistent evidence relative to the extensive use of electronic communication with the Accused via X Shield software installed on Blackberries, including the use of codes user names and gang jargon or lingo. [ 118 ] All of these witnesses were extensively cross-examined during the voir dire . They readily acknowledged their past wrong- doings and criminal activities while active members of the WBP gang.

All four witnesses were subject to cross-examination relative to prior statements and/or testimony in other court proceedings related to the proposed similar fact evidence sought to be introduced in this matter. Their evidence was not seriously shaken or undermined by this cross-examination. [ 119 ] I am satisfied that there is significant overlap in the evidence offered by these witnesses. As such the evidence of each witness

finds confirmation in the evidence of the other witnesses. As previously indicated, the law recognizes that the evidence of one Vetrovec witness can provide confirmation of the evidence of another Vetrovec witness. [ 120 ] Unlike the situation in Handy , the issue of possible collusion or collaboration between the various witnesses was not seriously pressed by the Defence. As previously stated, the Defence did closely cross-examine the witnesses relative to their contact with one and other since the date of the offences.

I am satisfied that the possibility of collusion in this instance is relatively low given that the witnesses have had little, if any, contact with each other since ending their association with the WBP gang. Three of the witnesses are in witness protection and have been relocated. Kyle Halbauer is serving a life sentence in prison. [ 121 ] In the result, I am satisfied that there was no collusion or collaboration between these witnesses and that the evidence offered by the Crown is reasonably capable of belief. I find that this threshold requirement has been met.

Prejudice [ 122 ] I now turn to consider the issue of prejudice, both in terms of moral prejudice and reasoning prejudice. Reasoning Prejudice [ 123 ] Reasoning prejudice focuses on the potential confusion and distraction of the jury from the substantive charge before the court by the introduction of potentially time-consuming evidence relating to other alleged criminal acts or acts of misconduct.

One of the concerns encompassed by the term “reasoning prejudice” is that the jury will place undue weight on the evidence pertaining to the similar facts and be distracted from the real issue, namely the determination of the guilt or innocence of the Accused on the charge before the court. In other words, the concern is that the trial will be unfocused. [ 124 ] In this instance, the trial is estimated to last a total of two weeks, of which it is estimated that three days will be devoted to evidence related solely to similar acts.

This is a significant portion of the trial and creates the possibility that a number of “side trials” will emerge that have the potential to confuse and/or distract the jury. Moral Prejudice [ 125 ] Moral prejudice, on the other hand, focuses on what Binnie J. described at para. 31 in Handy , as “bad personhood” and the prejudice to an accused person flowing from the receipt of evidence of prior criminal acts and/or discreditable conduct.

The obvious concern that arises is that the jury, despite instructions to the contrary, will engage in prohibited propensity reasoning based solely on the bad character of the accused. As Sopinka J. stated in B.(C.R.) at p. 744: “The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s actions on the basis of character.

Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent person has assaulted and a pedophile has engaged in pedophilic acts.” [ 126 ] The highly inflammatory nature of the evidence pertaining to the Accused’s alleged involvement in the murders of Santos and Roth, as well as the conspiracy to murder Night and Hunter, will be very difficult to alleviate through a jury charge.

The Crown does, however, suggest that at least some of the potential prejudice can be alleviated by withholding from the jury the highly inflammatory evidence related to the precise circumstances of the death of Lorrie Santos as well as evidence related to the indignities offered to the body of Roth following the murder. [ 127 ] As previously discussed, the Defence raises the concern that the Accused is already subject to significant prejudice as a result of the Crown’s expected evidence in the within matter regarding the illegal activities of the Accused and WBP gang.

The Defence contends that the moral prejudice to the Accused arising from the combined effect of the anticipated evidence in this case with the similar fact evidence is very significant. Finally, the Defence says that the Crown’s decision not to adduce evidence regarding the identity or circumstances of the mistaken target in the Santos murder, and the indignity offered to the remains of Roth by severing his head after he was shot, does not tip the balance in favour of admissibility.

Weighing Probative Value Against Prejudice [ 128 ] As Binnie J. stated at para. 149 in Handy , “probative value and prejudice pull in opposite directions on the admissibility issue and their conflicting demands must be resolved.” This process of resolution “has proven so controversial as to create what Lord Hailsham described as a ‘pitted battlefield’: Director of Public Prosecutions v. Boardman , [1975] A.C. 421 (H.L.), at p. 445 : Handy , at para. 27 .

What I take this to mean is that the weighing of probative value and prejudice in an application to adduce similar fact evidence is a complex and difficult process. [ 129 ] I am satisfied that the probative value of this evidence is “sufficiently great to make it just to admit the evidence” despite its clear prejudicial value: Director of Public Prosecutions v. P. , [1991] 2 A.C. 447 (H.L.) at p. 460 . In my view, the strength of the similar fact evidence in this instance outweighs the moral and reasoning prejudice.

This is not a situation where the similar fact evidence discloses more reprehensible conduct than the charge before the court. In my view, the circumstances of the Gower murder are equally grave as those associated with the proffered similar fact evidence. [ 130 ] In reaching this conclusion I am mindful that the Accused denies the similar acts and his alleged involvement in the death of Santos and the conspiracy to murder Night and Hunter are both matters still before the courts. As previously indicated, he has never been charged in relation to the murder of Roth.

In this regard, I am also mindful of the fact that the Accused may have limited opportunities to address the content of the similar fact evidence during the course of the trial.

[ 131 ] I find that the similar fact evidence should be admitted in evidence. It is compelling and cogent evidence derived from the improbability of coincidence. Conclusion [ 132 ] I am satisfied that there is a strong nexus between the similar fact evidence and the alleged offence and that the objective improbability of coincidence has been established Heard at St. Paul, Alberta on the 22 nd , 23 rd , 24 th and 25 th day of February, 2016. Dated at the City of Calgary, Alberta this 30 th day of June, 2016. M. David Gates J.C.Q.B.A. Appearances: Mr. J. Rudiak, for the Crown Mr. A. Karbani, for the Accused, Joshua Petrin