R v Souvie, 2016 ABQB 89

Court of Queen ’ s Bench of Alberta Citation: R v Souvie, 2016 ABQB 89 Date: 20160219 Docket: 140292897Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Philip Souvie and Raquel Wigmore Accused _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ 1. Introduction [ 1 ] Philip Souvie and Raquel Wigmore are charged on a 21 count indictment with various offences under the Criminal Code , RSC 1985, c C-46.

Both are charged with break and enter of a dwelling house and committing robbery under s 348(1)(b) / 344, kidnapping while using a firearm contrary to s 279(1.1) (a), unlawful confinement contrary to s 279(2), theft of a motor vehicle contrary to s 333.1, uttering a death threat under s 264.1(1) (

a) as well as numerous firearms offences. In addition, Mr. Souvie is charged with intentionally causing damage by fire or explosion to a motor vehicle contrary to s 434.1 and breaching his recognizance under s 145(3).

Ms. Wigmore is charged with breach of probation contrary to s 733.1(1). II. Background [ 2 ] The offences, alleged to have occurred on February 19, 2014, centered around a basement suite rented by Kristina Peet and located at 116 Avenue and 124 Street. The exterior window to the apartment is around ground level. [ 3 ] The evidence establishes that both accused together with a third individual, to whom I will refer as “Johnny”, entered Kristina Peet’s apartment while she and the Complainant Dallas Melton were there and that later, all five got into Mr. Melton’s vehicle. [ 4 ] Ms.

Wigmore, who testified in her own defence, suggested she, Johnny and Mr. Souvie were allowed into Ms. Peet’s apartment to drink and do drugs. She denies having seen a gun in the apartment or any violent interaction between Mr. Melton and Mr. Souvie. She testified they all agreed to get into Mr. Melton’s vehicle. [ 5 ] The evidence of Mr. Melton and Ms. Peet paints a very different picture. [ 6 ] Ms. Peet had known Mr. Melton for four or five years. She met him through the rave scene. Both were drug users, primarily crystal meth. [ 7 ] Ms. Peet was unemployed on February 19, 2014 and Mr.

Melton was on an unpaid leave from his job at Xerox, searching out rehabilitation programs to address his drug use. [ 8 ] Mr. Melton had split from his spouse a short time prior and was not scheduled to move to his new residence until March. He and Ms. Peet discussed the possibility of Mr. Melton staying at her apartment during the interim. [ 9 ] Earlier that evening, Ms. Peet and Mr. Melton drove to the Northlands casino for a drink before arriving at a storage unit in Sherwood Park. They retrieved Mr. Melton’s property, loaded it in his vehicle, and returned to the apartment sometime after 11:30 p.m. [ 10 ] Ms.

Peet knew Mr. Souvie and had allowed him to stay at her residence on and off prior to these events, although he had not been there for a couple of weeks prior to February 19, 2014. [ 11 ] Ms. Peet recognized Ms. Wigmore once she was in her apartment as they had gone to school together years earlier but she said they had not been in contact for years. Ms. Peet did not know “Johnny”, the third individual. [ 12 ] Mr. Melton had met Mr. Souvie on two or five occasions prior to February 19, 2014 and had given him rides on occasion, but he had never met either Ms.

Wigmore or Johnny. [ 13 ] At about 1:30 a.m., police were dispatched to 12212 - 109A Ave, where they found Mr. Melton sitting on the front steps of a house, wearing the homeowner’s coat. They observed a significant amount of blood coming from his head. He was shaking and appeared to be very traumatized. It took police several minutes to calm him down, but they were then able to communicate effectively with him. [ 14 ] Mr. Melton was transported by ambulance to the Royal Alexandra Hospital.

He had sustained a three inch laceration to his scalp which was sutured, a hematoma to his left forehead, right facial swelling and dried blood around his nose and mouth. He complained of headache, neck pain and left flank pain; bruising and abrasions were noted. He was noted to have no memory problems. Diagnostic tests included x-rays of his left ribs, jaw and facial bones, the results of which were negative. [ 15 ] In speaking to both the emergency and hospital personnel, he admitted to having used crystal meth at 6:00 p.m. that evening.

When discharged at 9:00 a.m. the next morning, he was noted to have a jacket, pants and shirt but no shoes. He returned to Ms. Peet’s apartment to get his cell phone, Ms. Peet’s cell phone and his clothes. He then left. [ 16 ] In the area where Mr. Melton was found, police observed various items on the roadway, including two backpacks, two black plastic storage bins and a three compartment recycling/garbage unit. [ 17 ] The black backpack contained a shotgun, a laptop wrapped in a towel, three shotgun shells, one of which was empty, a small bag of what looked like soft cocaine and a cell phone.

The contents of the second backpack were not noted, nor were the contents of the storage bins or recycling/garbage container. [ 18 ] The two backpacks were seized and placed in a “still under investigation” locker. No presumptive testing was done before placing the backpacks in the locker, nor was the shotgun wiped down before being placed in the locker. There was no evidence as to whether the cell phone was operable or to whom it was registered.

The Agreed Statement of Facts admits continuity of the exhibits seized: relevant exhibits as they relate to all DNA evidence, photographs, and the gun and related exhibits. [ 19 ] At Ms. Peet’s apartment, police observed the door to the unit to be unlocked and the window open. [ 20 ] Mr. Melton’s burned Mitsubishi Outlander was located by police at 3:58 a.m. on February 19, 2014 in the rear alley of 10721 - 74 Ave. The vehicle and the contents could not be salvaged and were written off. [ 21 ] Mr.

Melton retrieved his black and blue backpack, containing his contact lens and toiletries, from the police a few months later. III. Witnesses [ 22 ] Several police officers testified as to their involvement in the matter. However, the case turns primarily on the evidence of the

witnesses who were in the apartment on the night in question. Dallas Melton [ 23 ] Mr. Melton is now 30 years of age and a friend of Ms. Peet. He testified that he had attended her apartment many times prior to the incident. [ 24 ] On the evening in question, they loaded Mr. Melton’s Mitsubishi Outlander with cleaning supplies, clothes and personal effects from a storage unit in Sherwood Park. He estimates they arrived back at Ms. Peet’s apartment around 1:00 a.m. They were hungry, so he went to the 7 Eleven to get some snacks. He returned to the apartment through the front door. [ 25 ] Ms.

Peet was making food in the kitchen and Mr. Melton was on the couch working on his computer. He heard the buzzer to the suite. Ms. Peet answered it but did not let anyone in and a short time later it buzzed again. He saw Mr. Souvie’s head in the window and heard him yell at Ms. Peet to help him into the apartment. Ms. Peet appeared to be frightened and Mr. Melton stood up to tell Mr. Souvie to get out. The blinds to the window fell and he saw that Mr. Souvie had a gun. [ 26 ] Mr. Souvie swore and insulted him. When Mr. Melton went to sit on the couch, Mr. Souvie followed him. Mr.

Souvie started to beat him, hitting him with his fists and the back of the gun, and kicking him. [ 27 ] In the meantime, Ms. Peet was crouched on the floor by her bed. The second individual, identified as Ms. Wigmore, was standing beside her. Ms. Wigmore was rummaging through the apartment looking for stuff and also hurling insults at both Ms. Peet and Mr. Melton. At some point, Johnny came into the apartment. Mr. Melton had never seen him before. [ 28 ] Mr. Souvie asked for Mr. Melton’s phone, and told him to empty his pockets as he wanted his ID, phone and vehicle keys. Mr. Souvie put the gun to Mr.

Souvie’s face and pulled the trigger, but the gun did not discharge. When the gun was on the floor cocked open, Mr. Melton saw a bullet in the gun. While Mr. Souvie was fussing with the gun, Mr. Melton attempted to escape. Johnny grabbed him and wrestled him to the ground. Ms. Wigmore and Mr. Souvie started kicking him again. Mr. Melton did not know where the gun was at that point. [ 29 ] The contents of Mr. Melton’s wallet were handed to Mr. Souvie. He told Mr. Souvie that he could not have his cell phone as it was his work phone. His vehicle keys were taken. Mr.

Souvie stated, “We are not taking your keys, you’re coming with us”. A pillow case or towel was put over Mr. Melton’s face. He attempted to knock it off. He was told that they were taking him to see someone named Apple. Mr. Melton did not know where the gun was at this point. [ 30 ] Ms. Wigmore and Mr. Souvie grabbed a number of items. Mr. Souvie left the apartment first, followed by Ms. Wigmore and Johnny. Ms. Wigmore and Johnny forced Ms. Peet and Mr. Melton into the vehicle which was packed fairly full with his belongings. The back row passenger seats were flipped down to allow for more storage. He and Ms.

Peet were wedged in behind the front seats. [ 31 ] Mr. Melton escaped by opening the door to the moving vehicle. He ran and started banging on windows and doors of houses in the area until someone answered. He remained outside that residence until the police arrived a short time later. [ 32 ] Mr. Melton testified that he suffered bruised and cracked ribs, bruising throughout his face and body and sixteen stitches to the top of his head. The police called him after his discharge from hospital that day to advise him that they had found his burnt vehicle. Everything inside was written off due to smoke damage.

Kristina Peet [ 33 ] Ms. Peet had leased the apartment where the alleged offences began for seven or eight years prior to the incident. She had met the Complainant, Dallas Melton, through the rave scene four or five years prior and described him as a good friend. In February of 2014, she was considering having him as a roommate and thought he could live with her until he “got on his feet”. [ 34 ] Ms. Peet had known Mr. Souvie for two and a half or three months prior to the incident. She had allowed Mr. Souvie to stay at her apartment a few weeks on and off prior to the incident.

She did not know if he had a girlfriend. She testified that no one was residing with her on February 19 and Mr. Souvie had last been there perhaps two weeks prior. [ 35 ] Ms. Peet had been acquainted with Ms. Wigmore for quite some time, having grown up in the same neighbourhood and having attended the same school. [ 36 ] Ms. Peet did not know the third individual who arrived with Mr. Souvie and Ms. Wigmore. [ 37 ] On the evening in question, Ms. Peet and Mr. Melton returned from the storage unit to her apartment. The apartment buzzer went off. Ms. Peet did not allow the people in.

She did not recognize or understand the name given. Next, she saw the butt end of a shotgun through her window. She did not see who was holding the gun. She heard demands to let them in. Having seen the gun, she complied by buzzing them in and opening the door to her apartment. [ 38 ] Ms. Peet was sitting on the floor during most of the events in the apartment. There was lots of yelling and shouting and some fighting going on. Ms. Wigmore had discussions with her and asked her if she had slept with Mr. Souvie. [ 39 ] Mr. Souvie came into the living room. Ms.

Peet did not recall if he had the shotgun at that time, but he wanted Mr. Melton’s laptop. Mr. Melton was resisting handing over his laptop and was defending himself. She saw a bag but did not observe the gun inside the apartment. She did not see any weapon used against Mr. Melton. The altercation took 30 to 40 minutes to her estimation. [ 40 ] Ms. Peet received a kick to her face from both Mr. Souvie and Ms. Wigmore. She recalls having a huge goose egg on her

head. She admitted that she never saw Ms. Wigmore strike Mr. Melton, nor did she ever observe her to be holding the gun. [ 41 ] At one point, the three individuals learned of Mr. Melton’s vehicle. She and Mr. Melton were ordered to get into his vehicle. She did not know where they were going. She did not want to go. She does not remember if she had her shoes when she left the apartment. [ 42 ] Because Mr. Melton’s vehicle was full of his belongings, she was crouched behind the driver’s seat. Mr. Melton was in the middle and the second male was seated beside him on the passenger side. Ms.

Wigmore was sitting in the front passenger seat. [ 43 ] They travelled a few blocks down 124 Street. Ms. Peet became concerned when Mr. Melton said that he was getting out as she did not want him to be run over. She was trying to convince him to stay inside. She did not feel she was free to leave the vehicle. [ 44 ] After Mr. Melton jumped out of the vehicle, Mr. Souvie drove to the Whyte Avenue area. They got out in a back alley. Ms. Peet recalls not having her shoes. Mr. Souvie told Ms. Wigmore to take Ms. Peet and walk up an alley. They walked away from the vehicle. [ 45 ] Ms.

Peet did not see the vehicle being set on fire. [ 46 ] She thought both Mr. Souvie and Ms. Wigmore were drunk at the time because of their rowdiness. Raquel Wigmore Trial Testimony [ 47 ] Ms. Wigmore and Mr. Souvie share a four year old daughter and a 13 month old son and had been in a relationship about four or five years at the time of the alleged offences. [ 48 ] Ms. Wigmore testified she met Mr. Souvie that evening at Teddy’s Pub on Jasper Avenue. She had a few drinks and they played the slots.

At one point they met up with Johnny, went to a liquor store, and bought a 13 oz bottle of vodka that the three of them consumed. [ 49 ] They walked to an apartment above the Gas Pump bar. Then they went to an apartment she later learned was Ms. Peet’s. She believed the three of them got a cab to Ms. Peet’s apartment. She thought they were at Ms. Peet’s apartment to drink and do drugs. She and Johnny went to the buzzer while Mr. Souvie went to the window and started talking. There was nothing in Mr. Souvie’s hands. She heard Ms. Peet ask who it was. When she answered “Raquel”, Ms.

Peet buzzed them in the main door and she entered the open apartment door. Johnny entered a few minutes later. She is not sure how Mr. Souvie got in. [ 50 ] Ms. Wigmore saw Ms. Peet sitting on the floor with her laptop and Mr. Melton on the couch. She recognized Ms. Peet from school. They made small talk and caught up. Ms. Peet had her meth pipe and offered her some. [ 51 ] Johnny was rummaging through stuff. Mr. Souvie and Mr. Melton started to argue. Ms. Peet expressed concern about the noise disturbing the neighbours. They all decided to leave. Ms. Peet started to pack up her clothes and her laptop. Ms.

Peet and Mr. Melton each had a backpack. Mr. Melton handed the keys to Johnny who handed them to Mr. Souvie outside. Ms. Wigmore inferred that Mr. Melton was too high to drive. [ 52 ] Ms. Wigmore did not hear any threats, nor did she see a gun. She denied hitting anyone except for slapping Mr. Melton in the vehicle, after he kicked her in the head. Ms. Wigmore testified Mr. Melton seemed happy to be in the vehicle but later “wigged out”, becoming paranoid. He got out of the moving vehicle. Minutes later, Johnny asked to get out, so Mr.

Souvie pulled over to let him out. [ 53 ] They drove to the west end, not the south side. There was no discussion about the vehicle and Ms. Wigmore does not know what happened to the keys. [ 54 ] According to Ms. Wigmore, she was severely intoxicated from drugs and alcohol during the events in question. Several times, she said that she was in and out of blackouts that evening. [ 55 ] The Crown applied to admit prior inconsistent statements made by Ms. Wigmore. Two voir dires were held regarding the admissibility of a Facebook exchange between Mr. Melton and Ms.

Wigmore, and the admissibility of a statement provided by Ms. Wigmore to the police on March 15, 2014. Facebook Conversation [ 56 ] The Crown applied to enter into evidence a conversation between Mr. Melton and Ms. Wigmore which took place between June 16, 2015 and July 13, 2015 on Facebook Messenger. Defence objected to its admission due to its late disclosure and the prejudicial nature of its contents. [ 57 ] Mr. Melton and Ms. Wigmore testified in the voir dire . With the exception of two “thumbs up” emoticons, Ms.

Wigmore admitted the authenticity and accuracy of the conversation, and she acknowledged the conversation referred to the events of February 19, 2014. [ 58 ] In June 2015, Mr. Melton saw Ms. Wigmore’s Facebook post about a murdered woman named Amber. He decided to contact Ms. Wigmore through Facebook messenger. Although Ms. Wigmore knew she was bound by a condition not to contact Mr. Melton, she thought the no contact provision bound both of them.

[59] No Crown or police impropriety was suggested in relation to the late disclosure. The information was not produced until theThursday before the start of trial. This is when Mr. Melton, in his pre-trial meetings, brought it to the attention of the police. I accept hisevidence that he had left messages for the Constable in charge of the case, but they were not returned. [60] Mr. Melton flatly denied that the police asked him to contact Ms. Wigmore. He denied attempting to get a confession out ofher. He testified that he contacted her because he wanted to know why this incident happened.

He was having trouble sleeping at nightand was suffering from anxiety. He was not intending to show the conversation to the police, but then he felt guilty because Ms.Wigmore said to him that he was not supposed to be talking with her. [61] Defence counsel argued that Ms. Wigmore’s s 7 right to make full answer and defence was breached by the late disclosure. [62] The Supreme Court of Canada decision in R v Bjelland, 2009 SCC 38, [2009] 2 SCR 651 is a leading authority on latedisclosure.

The Court in Bjelland examined when the exclusion of evidence is an appropriate remedy under s 24 (1) of the Charter toaddress late disclosure by the Crown. According to that decision, a remedy under s 24(1) for exclusion of the evidence requires that Ms.Wigmore establish a breach of her Charter rights on a balance of probabilities. [63] The majority in Bjelland made it clear that a failure to disclose evidence does not in and of itself constitute a violation of s 7rights. Ms. Wigmore must show “actual” prejudice to her ability to make full answer and defense in order to be entitled to a remedy unders 24(1).

A fair trial balances both the rights of the accused to basic procedural fairness and the perspective of the community in getting atthe truth. [64] This is not a case where Ms. Wigmore’s ability to challenge the authenticity or accuracy of the conversation wascompromised because of the late disclosure. Ms.

Wigmore confirmed that the conversation was authentic and accurate. [65] The conversation is clearly relevant and material and has probative value. [66] Defence counsel was unable to articulate how the trial strategy would have differed had this information been disclosed in thesummer of 2015, immediately after the conversation took place. Indeed, I did not hear any evidence of actual prejudice Ms. Wigmoresuffered as a result of the late disclosure of this information.

Although it was open to defence counsel to apply for an adjournment of thetrial, he did not do so, either before the trial or at the voir dire. [67] In this instance, there is no evidence the conversation was obtained in breach of the Charter. Defence could not have cross-examined Mr. Melton regarding the conversation at the preliminary inquiry because the conversation had not yet occurred. In any event,the ability to cross-examine a witness at a preliminary inquiry is not a component of the right to make full answer and defence at trial:Bjelland at para 32. [68] Ms.

Wigmore has admitted that she was a party to the conversation and while she may not have appreciated that theconversation would be used in her criminal proceedings and she may have forgotten that it had occurred, the disclosure cannot be said tohave taken her completely by surprise. [69] The information was provided by the Crown as soon as Crown received it from Mr. Melton. As such, there is no basis toargue that the late disclosure creates irreparable prejudice to the integrity of the judicial system.

Indeed, because the conversation isrelevant and material, it would arguably offend community sensibilities to exclude it, in the absence of prejudice, simply because it wasprovided days before trial. [70] In R v SGG, (SCC), [1997] 2 SCR 716, [1997] SCJ No 70, McLachlin J (dissenting in the result) defined“prejudice” in terms of the accused’s right to make full answer and defence: 100 "Prejudice", for the purposes of this inquiry, is used in the legal, procedural sense. The fact that the evidence tendered may bepowerful evidence for the prosecution does not lead to a conclusion of prejudice.

The inquiry into prejudice focuses not on the effect theevidence may have on the outcome of the trial, but on its effect on the accused's right to make full answer and defence. The question isnot whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly.

The just or fair trial is onewhich gets at the truth, while respecting the fundamental right of the accused to make full answer and defence. [71] There would be no prejudice in this sense resulting from admission of the Facebook conversation. [72] At the conclusion of the voir dire, I found the Facebook conversation was admissible and with the consent of Ms. Wigmore’scounsel, the evidence from the voir dire was applied to the trial proper. [73] The Facebook exchange with Mr. Melton, in June and July of 2015 corroborates to some extent the evidence that violentevents occurred on the evening in question.

There was no evidence that Ms. Wigmore was intoxicated when she wrote these messages. [74] In the exchange, which she admitted referred to the events in question, she deflects responsibility onto Mr. Souvie and heraddictions, but also apologizes, stating she was not in the right state of mind at the time, is no longer with Mr. Souvie, and that he wantedher to lie for him. At one point, she admits she could have walked away. She concludes the conversation by stating: I hope and pray things get better for you. I truly apologize. Drugs really do take over people’s life’s.

As you should know!!! grateful thatyou are still here and that I am where I need to be. Thanks for making my life meaningful. I have lots to appreciate. And the only way Icould move forward is forgiving and accepting. I’m struggling right now with depression and paranoia from drug induced. I hope youcan find it in your heart to forgive me. I’m not a mean person. I was just in an unhealthy relationship. But it’s all over. Yes there areconsequences for everything. I just want to thank you. Police Statement

[ 75 ] The second voir dire dealt with the voluntariness of Ms. Wigmore’s statement to the police. [ 76 ] Ms. Wigmore was arrested and questioned by the police on March 15, 2014. At trial, Ms. Wigmore recanted what she had earlier told the officers, testifying she had been up drinking and doing drugs when she gave her statement. She testified she exaggerated events because she was angry at Mr. Souvie and wished to get back at him. [ 77 ] The law in relation to admission of statements made to persons in authority is well established.

The onus is on the Crown to prove the voluntariness of the statement beyond a reasonable doubt: R v Singh , 2007 SCC 48 , [2007] 3 SCR 405. [ 78 ] In R v Oickle , 2000 SCC 38 , [2000] 2 SCR 3, the Supreme Court outlined the factors a trial judge should consider when reviewing a confession or statement made to a person in authority. Involuntary confessions are more likely to be unreliable. The confessions rule recognizes that certain interrogation techniques commonly produce false confessions.

Oickle references the twin goals of protecting the right of the accused without unduly limiting society’s need to investigate and solve crimes. [ 79 ] The factors identified in Oickle include: a. Threats or promises either to the accused or to another individual An important factor is whether there is evidence of a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. b.

Oppression or inhumane conditions This can include depriving the accused of food, clothing, water, sleep or medical attention, denying access to counsel and subjecting the individual to excessively aggressive or intimidating questioning for a long period of time. Oppressive conditions can also include the police use of nonexistent evidence to extract a statement. c. Operating mind An operating mind simply requires knowledge of what the accused is saying and that she is saying it to a police officer who can use it to her detriment. d.

Police trickery This is a distinct inquiry and is aimed at preserving and maintaining the integrity of the criminal justice system. This refers to police tactics that would shock the community. [ 80 ] Defence counsel does not argue the conditions were oppressive or inhumane nor do they argue police trickery. I find, in fact, that the Crown has established that the conditions were not oppressive or inhumane, nor was there police trickery. [ 81 ] Defence counsel submits that Ms. Wigmore’s statement was involuntary on two bases: 1.

Her level of intoxication from drugs and alcohol was at a level such that she did not have an operating mind; and 2. She was induced to give her statement because Det. Wenngatz promised her that if she provided a statement she would be released from custody. [ 82 ] Ms. Wigmore testified to being sleep deprived and intoxicated at the time of her arrest. She had been up partying with her sister the night before, drinking 60 oz of hard liquor and a 15 pack of beer. She was drinking up until 10 a.m. on the morning of her arrest.

She testified that she cannot really remember events as she was in and out of blackouts, presumably alcohol induced. She had snorted ½ gram of meth the night before. [ 83 ] Ms. Wigmore was arrested at 12:15 p.m. When Constables Dryer and Skousbol attended at her apartment to arrest Ms. Wigmore, she first refused to come out, telling them they needed a warrant. The arresting officers were satisfied that Ms. Wigmore understood what she was told and responded appropriately to questions. Both officers testified she was upset and angry when she was first arrested but calmed down after she was handcuffed.

She walked to the police vehicle without assistance. [ 84 ] Cst. Skousbol noticed no signs of impairment. [ 85 ] Cst. Dryer wrote “impaired” in the detainee log. He explained that Ms. Wigmore, when asked, did not mention that she had consumed any alcohol or drugs, however, he picked up “maybe a little bit of odour of alcohol” and in that case, he likes to be safe and write “intoxicated”. He disagreed that she was grossly intoxicated. [ 86 ] In the voir dire , Ms.

Wigmore denied having access to a phone before the interview, however the detainee log indicates that she was placed in the phone room at 1:00 p.m. [ 87 ] Det. Wenngatz conducted the interview of Ms. Wigmore at 1:23 p.m. [ 88 ] Ms. Wigmore’s police interview was videotaped and the authenticity and continuity of the video was admitted. [ 89 ] In the video, Ms. Wigmore does not appear to be staggering when she walks into the room. She comes into the interview room visibly upset and crying. She sounds as though she is congested from crying. [ 90 ] When Det Wenngatz reads Ms.

Wigmore her rights and asks her if she understands, Ms. Wigmore answers: “I know all that. I

know, yes. Yes. I understand”. [91] When he asks her if she wants to speak to a lawyer she replies: “No, I put into a lawyer, Legal Aid”. [92] She calms down relatively quickly but becomes emotional again several times during the interview. She gives no verbalindication that she is impaired or not fit to give the interview. She remains awake the entire time. [93] Det. Wenngatz denied that Ms. Wigmore told him that she was high on drugs or that she had been drinking. He testified thatMs. Wigmore appeared sober and appeared to understand the questions he asked her. When it was suggested that Ms.

Wigmore was infact drunk or high on drugs at the time of her statement, he consistently denied that she showed any indicia of intoxication or impairmentthrough drugs or alcohol. He testified that based on his seven years of police experience, he was well acquainted with the indicia ofchemical impairment. He was adamant that he would not have conducted the interview if he was concerned that she was impaired. [94] While giving evidence in the voir dire, Ms. Wigmore did not break down or cry.

My impression was that there was noappreciable difference in her ability to comprehend questions asked and to give responsive answers in the police interview, whencompared with her testimony at trial. During the trial, she struggled at times in comprehending straightforward questions, and asked thatquestions be repeated. [95] In R v Ristine, (ON SC), [2007] OJ No 1401, 48 CR (6th) 13 (Sup Ct Just), Lalonde J provides a helpfulsummary of the law on what level of intoxication affects the accused’s operating mind to the extent that the statement may be heldinvoluntary.

In that case, the accused had been drinking for a week and, according to his wife, acting like a crazy person. In ruling thestatement admissible, Lalonde J noted that the operating mind test is objective with a limited subjective element. Citing R v Whittle, (SCC), [1994] 2 SCR 914, 170 NR 16 and R v Hebert, (SCC), [1990] 2 SCR 151, 110 NR 1, Lalonde Jheld that the Crown’s burden does not require it to show that the accused appreciates the situation and the alternatives, or that theaccused was capable of understanding the consequences of making a statement. [96] The video establishes that Ms.

Wigmore had an appreciation of the proceedings and the necessary operating mind. While shewanders off topic at times, she also volunteers significant details about the events in question in a relatively coherent fashion. [97] While I accept that Ms. Wigmore likely had some drugs and alcohol in her system and some degree of impairment, I amsatisfied beyond a reasonable doubt that her level of intoxication was not so great as to deprive her of an operating mind. [98] The second challenge to the voluntariness of the statement related to an alleged promise or inducement. Ms.

Wigmore testifiedthat while walking from cells to the interview room, Det. Wenngatz promised her that if she provided a statement, she would be releasedfrom custody. [99] The alleged promise was not put to Det. Wenngatz in cross-examination. He was asked whether he promised to let Ms.Wigmore use the phone if she provided a statement. He denied this. [100] During argument on the voir dire, I questioned whether there had been a breach of the rule in Browne v Dunn (1893), 6 R 67(HL) and if so, how defence counsel proposed to address it. Eventually, Det.

Wenngatz was recalled at trial and gave his evidencethrough Facetime. The exchange in cross-examination went as follows: Q. Yes, I didn’t get to a question yet. I’m just kind of setting a table here for you so that you understand where we’re at. Did you take herfrom the cells to the interrogation room? A. Did I take her from the cells to the interrogation room, yes, I did. Q. Okay. Were you the only one there that - - A. I was. It - - it would’ve been just me. That’s right. Q. Okay. Did you have any discussions with Raquel Wigmore on that trip from the cells to the interrogation room? A.

I mean, as - - as far as what we - - what I would say to her, basically I was - - I mean, it’s maybe 45 steps. I would basically introducemyself and explain that we were going to conduct the interview, and that’s basically all I would say on the way. Q. Did you ever ask her if she - - or did you ever tell her or hold out to her that she would be released if she gave a statement? A. No. Q. Like, I’m talking from the cells to the interrogation room? A. Yeah. No, absolutely not. Q. Do you recall that for certain? A.

Well, I - - I mean, I don’t recall exactly what I said to her, but I would absolutely under no circumstances tell her that. I can’t beforethe interview tell her what I can and can’t do for her. I don’t know what she’s going to say. I don’t know where the investigation’s goingto go. There’s no way I would’ve told her that, especially on a file such as this. Q. Okay. Thank you. [101] I do not believe Ms. Wigmore’s evidence that a promise was made that if she gave a statement to the police she would bereleased from custody and that she was induced to speak because of this promise. Ms.

Wigmore, when asked by her counsel why she

provided the statement, did not reference the alleged promise but paused and eventually answered that she was intoxicated and not in her right mind. The alleged promise is never referenced by Ms. Wigmore during the police interview. She never asks when she will be released. [ 102 ] Ms. Wigmore’s evidence does not raise a reasonable doubt in my mind regarding the voluntariness of her statement based on a promise. [ 103 ] I accept Det. Wenngatz’ denial of the alleged promise.

Considering the whole of the evidence, I am not left with a reasonable doubt as to whether such a promise was made. [ 104 ] At the conclusion of the voir dire , having heard the evidence of Cst. Dryer and Skousbol and Det. Wenngatz and having reviewed the video tape of Ms. Wigmore’s statement, I found that the Crown had established beyond a reasonable doubt that Ms. Wigmore was not so intoxicated by drugs or alcohol that she was deprived of an operating mind. Ms.

Wigmore was apprised of her rights, remained awake the entire time, was not deprived of food or drink, was only questioned from 1:23 p.m. until 2:10 p.m. and as I have found, was not offered either an inducement or a promise in exchange for her statement. [ 105 ] I concluded that the Crown had proven beyond a reasonable doubt that Ms. Wigmore’s statement was voluntary. Again, counsel consented to the evidence in the voir dire being entered into the trial proper. [ 106 ] Ms.

Wigmore’s police interview starts with her denying any involvement, or that she was even present. [ 107 ] Within minutes, she admits she was present at the apartment and offers up details not provided to her by the police - details that provide compelling evidence corroborating Mr. Melton’s and Ms. Peet’s evidence: - there was a girl named Kristina and a guy named Johnny - Mr. Souvie jumped through the window at Kristina’s apartment and let her and Johnny in - she did not touch the gun; Mr. Souvie fired it - there were drugs involved - there was a guy on the couch - Mr. Souvie ordered Ms.

Wigmore to take the guy’s shirt off and the gun went off - she did not know what was in the backpack - the gun was wrapped in tape, wrapped in silver - the gun had a thing that was thick and red with gold at the end that had little bullets in it - she and Johnny stood by the apartment door - both Mr. Melton and Johnny jumped out of the vehicle. IV. Credibility [ 108 ] I am mindful that Mr. Melton, Ms. Peet and Ms. Wigmore all have a history of drug use and there was evidence that intoxicants had been consumed by all of them on the evening in question.

It is possible that this may have affected their perceptions of the events at the time, as well as their ability to recall, after the fact, what had occurred. Dallas Melton [ 109 ] Defence counsel argued that Mr. Melton is the most problematic witness because he frequently changed his answers, particularly when cornered, he tended to exaggerate and, overall, he was not careful about being honest. Further, they argued his drug abuse makes him unreliable. [ 110 ] Mr. Melton was candid about his own addiction issues and the fact that he and Ms. Peet had consumed drugs that day. At the time of trial, Mr.

Melton was clean and sober. [ 111 ] While Ms. Peet agreed in cross-examination that she and Mr. Melton had each swallowed a cap of GHB and had smoked some meth together at her apartment a half hour to an hour before the events transpired, Mr. Melton testified that he last used meth that day sometime around 8:00 p.m.

He reported to emergency and hospital personnel that he had last used meth at 6:00 p.m. [ 112 ] I heard no expert evidence on the effects of meth on a regular user, but there was general evidence that possible side effects from meth include paranoia, seeing shadow people, altered perceptions of reality, altered memories and loss of memory. Certainly there was no evidence that either Ms. Peet or Mr. Melton was in the middle of a meth run on February 19 during which either was up for days, nor that they smoked a significant quantity of meth that day or smoked it quickly.

No problems were noted by emergency or hospital personnel regarding Mr. Melton’s cognitive functioning or memory. [ 113 ] I prefer Mr. Melton’s evidence over Ms. Peet’s in regard to Mr. Melton’s drug use that night, in part because her answers were suggested to her in cross-examination and because overall, I found Mr. Melton to be more reliable.

[114] In any event, although Mr. Melton was a regular drug user at the time, I am satisfied that Mr. Melton’s drug consumption onFebruary 19 did not significantly undermine his reliability as a witness at trial. [115] The Ontario Court of Appeal, in R v MG (1994), 93 CCC (3d) 347, (CA) provides helpful guidance onassessing credibility. One of the most valuable means of assessing the credibility of a witness is by examining the consistency in theevidence given on different occasions.

It is recognized that inconsistencies on minor points are to be expected, particularly withcomplainants who have experienced traumatic events, who are often questioned by police in the immediate aftermath of events, at thepreliminary inquiry and at trial years after the event. Even then, a series of inconsistencies may raise a doubt as to the overall reliabilityof that witness’s evidence. [116] MG is a reminder that careful attention should be paid to inconsistencies on crucial matters as they may demonstratecarelessness with the truth.

An assessment of a witness’ credibility “must reasonably subject his story to an examination of itsconsistency with the probabilities that surround the currently existing conditions”: Faryna v Chorny, (BC CA), [1952]2 DLR 354 at 356-7, [1951] BCJ No 152. [117] There is no doubt there were some inconsistencies between Mr. Melton’s police statement, his evidence at the preliminaryinquiry and his evidence at trial. For example, he said in his police statement that the first time he saw the gun was when Mr.

Souvie washitting him with it while he was on the couch, but he testified at trial that he first saw the gun when the blinds to the window fell downand Mr. Souvie came through the window. As well, his evidence differed in the number of times he was hit and how far the gun wasfrom his face when the trigger was pulled. [118] The following exchange occurred during his cross-examination at trial (transcript, 132/40 – 124/7): Q. So when you said at that time that you first saw it when he jumped in the window, were you lying, or were you mistaken? A. I don’t know. Q.

When you said that you saw it before he started punching and hitting you, were you lying, or were you mistaken? A. I was mistaken. Q. As well you’ve indicated today that you see this gun in Phil’s hand as he’s coming in the window; is that correct? A. I was mistaken. Q. I understand that, but that’s what you said today? A. Yeah. Q. That would indicate to me, and correct me if I’m wrong, that you saw Mr. Souvie come through the window? A. I saw him when the blinds fell down. Q. Do you recall telling the police that the first you saw him was when you turned around and he was already in the house? A.

His head was in the window. Q. That’s not what I’m asking, Mr. Melton. A. That’s the first time I saw him, was when his head was in the window. That would be him being in the apartment. Q. So when you described to the police that he had stuck his head through the window, that you had gotten up from the couch, turnedaround in some fashion, and then when you turned around again, he was in the apartment, that was incorrect? A. Incorrect in what way? Q. Well, either you saw him come through the window, or you didn’t correct? A.

I - - I didn’t see him come through the window, but I saw him in the window trying to get in the window. I saw him when the blindsfell down and he was still half in the window. Q. So at the preliminary hearing when you told me previous co-counsel that you had seen him climbing in, that was a mistake? A. No, that was true. I did see him climbing in. I didn’t see him come through the window. Like, he was trying to, and he was askingKristina to help him in the window. Q. Well, perhaps we’re having a misunderstanding as what coming through the window means.

To me, climbing in the window meansthe same thing as coming in the window, does it not? A. Yes, but someone coming in a window takes two seconds, and they come in through the window. I didn’t see him get - - comethrough the window and jump on the floor. I saw him yelling at Kristina while he was half in and half out of the window for, like, five or- - five or six minutes. [119] Mr. Melton appeared very frustrated during portions of his testimony. At times during cross-examination, he manifested asarcastic attitude. His frustration with the court process was readily apparent.

I attribute this to several factors, including the numerous

stops and starts in his evidence arising from the voir dires, being asked many of the same questions by two defence counsel, being repeatedly questioned on the same issue, being questioned on what may have seemed to him to be collateral issues such as his savings, his employment, what he paid for his vehicle and what he received in insurance proceeds. He referenced problems with sleeplessness and anxiety from these events. [ 120 ] Defence counsel also argued that Mr. Melton is prone to exaggeration. He testified he was bruised all over, that he received 16 stitches to his head and his ribs were cracked.

He testified that when the police arrived, he had pain in his chest and difficulty breathing. The medical records demonstrate that although there was bruising and abrasions on his left flank area, the x-rays did not show rib fractures. He testified that he did not receive copies of the x-rays. The EMS records do not indicate he had difficulty breathing. He received seven sutures, not 16. [ 121 ] As well, defence counsel opined that the value Mr. Melton placed on his vehicle was on the high side.

He testified about the cost of his vehicle in relation to the insurance proceeds he received and the amount remaining owing on his loan. There was no independent evidence to confirm or contradict his testimony. [ 122 ] Further, counsel notes that he thought he ran from the vehicle with virtually no clothes on, but could not explain when they came off. The police made no note that he was undressed when they found him. On the other hand, it was noted the homeowner had given him his coat, and the hospital records indicate he was discharged without any shoes. [ 123 ] In my view, the inconsistencies in Mr.

Melton’s evidence, and any exaggerations and sarcastic or flippant attitude displayed by Mr. Melton, do not detract from his overall credibility and reliability with respect to the key aspects of his evidence. Mr. Melton, throughout cross-examination by two defence counsel, did not waiver and remained unshaken on his evidence that: Mr. Souvie pointed a gun through the window and demanded entry, Mr. Souvie punched and kicked him, pointed the gun at him and pulled the trigger, Mr. Melton attempted to run out of the apartment but was wrestled to the ground by the second male, he was kicked on the floor by Ms.

Wigmore and Mr. Souvie, he was forced to hand over his vehicle keys, and he and Ms. Peet were forced into his vehicle. [ 124 ] Mr. Melton described the gun in question as being wrapped in duct tape, bumpy and textured. The gun in evidence is partly matt silver and partly wrapped in what appears to be some type of brown camouflage patterned duct tape. The description given by Mr. Melton conforms sufficiently with the exhibit to satisfy me that the gun located by police in the backpack on the road was the same gun he saw in Ms. Peet’s apartment. Kristina Peet [ 125 ] Defence counsel do not challenge Ms.

Peet’s credibility. They characterize her as a witness trying to do her best to give truthful answers. I agree. My overall impression of Ms. Peet is that she was doing her very best to remember what had occurred and was attempting to be scrupulously honest about what she did not remember. [ 126 ] I do caution myself, however, about the reliability of her evidence. She had not slept for a couple of days and had not consumed a lot of food before testifying. Her evidence at trial almost two years after the fact was the first time she had given evidence or provided a statement.

She testified she was very stressed over trying to remember these events, which she had purposely suppressed. The day of her testimony, she had spoken to a mental health worker at AADAC. Although she was a methamphetamine user at the time of this incident, she is now on a methadone program. [ 127 ] Ms. Peet recalled that on the evening in question, she and Mr. Melton each had a cap of GHB when they returned to her apartment.

She remembered smoking some meth with him that night and although she had trouble remembering the time, she agreed on cross-examination that it was a half hour to an hour before these events transpired. [ 128 ] Not only has a significant amount of time passed, but there is no doubt that she was a heavy drug user at the time of this incident. While I did not receive detailed evidence of the extent of her drug use, I conclude that her memory of events may well have been affected. I also recognize that these events as she recalls them were traumatizing to her.

She was very scared by the events of that evening and hurt and upset when Mr. Melton questioned whether she had set him up. She testified she had attempted suicide. [ 129 ] Regarding entry to her apartment, she admitted that on occasion, she would enter by the window when she forgot her keys. She admitted friends would often knock on her window, and she would sometimes tell her friends to come in through the window if she was too lazy to get up to buzz them in. In cross-examination, she maintained that she heard the window open and saw the barrel of a shotgun or perhaps a pipe sticking through.

She was told “let us in, we’re not fucking around”. [ 130 ] Ms. Peet stated in cross-examination that Mr. Melton had previously given people rides in exchange for drugs. She had warned him not to do that. [ 131 ] Throughout her testimony, Ms. Peet remained steadfast on certain key points: - she observed a gun (possibly a pipe) through her window and heard a demand to be let in; she opened her door in response to this and would not otherwise have allowed the group entry - she observed a struggle between Mr. Melton and Mr. Souvie over Mr. Melton’s laptop and observed Mr.

Melton to have “taken a licking” - she was kicked in the head by Ms. Wigmore and Mr. Souvie while sitting on the floor - both she and Mr. Melton were forced into the backseat of Mr. Melton’s vehicle against their will - she tried to convince Mr. Melton to stay in the vehicle but he opened the door and jumped out while the vehicle was moving.

Raquel Wigmore [ 132 ] Ms. Wigmore testified in her own defence. Ms. Wigmore’s testimony differed markedly from her earlier police statement. Ms. Wigmore’s out of court statements may be used to assess her credibility. [ 133 ] Ms. Wigmore’s counsel suggested her version of events at trial made the most sense. He also suggested that Ms. Wigmore was credible in testifying at trial; she was not nervous, nor was she shaken on cross-examination. [ 134 ] When confronted with her police statement, Ms. Wigmore repeatedly replied that she did not remember and was intoxicated at the time.

Later, when confronted with specific statements made to the police, she repeatedly said that she had lied. [ 135 ] Ms. Wigmore’s counsel argues that her evidence at trial, given in a sober state, should be preferred to what she said in her police statement while she was intoxicated. But as I stated earlier, I am satisfied beyond a reasonable doubt that her level of impairment at the time of the interview was not so great as to deprive her of an operating mind. As well, the statement was taken one month after the events whereas the trial occurred two years later. There is nothing in Ms.

Wigmore’s demeanour when making the police statement which would lead me to doubt the credibility of the statement. [ 136 ] Nor was there anything about the manner of questioning by Det. Wenngatz which would raise any concerns. Ms. Wigmore volunteered certain significant details. Those details are corroborated by the evidence of Mr. Melton and Ms. Peet. As well, while it is extremely vague regarding what occurred, her apologetic Facebook message to Mr. Melton in 2015 is more consistent with the events described in her police statement than those she recounted at trial. [ 137 ] Ms.

Wigmore’s testimony at trial came across as being contrived. She testified that Ms. Peet allowed them into her apartment and while there was some arguing between Mr. Melton and Mr. Souvie, she observed no violence against Mr. Melton. She denied seeing any physical altercation between Ms. Souvie and Mr. Melton. However, in cross-examination, she stated they were in a consensual fight. [ 138 ] Her evidence that Mr. Souvie and Mr. Melton engaged in a consensual fight seems implausible as Mr. Souvie is significantly taller than Mr. Melton and well-muscled whereas Mr. Melton is very slight. [ 139 ] Ms.

Wigmore testified that a backpack brought to the apartment was Johnny’s, and she never observed Mr. Souvie with a gun in his hands. In cross-examination, she testified that she would not have seen a gun if he had one because she was focussing on Ms. Peet and her back was towards them. [ 140 ] Ms. Wigmore stated at trial that she started to randomly buzz apartments until she heard a voice ask who it was, and when she replied “Raquel” she was let in. She testified she did not know whose apartment she was going to and did not recognize Ms.

Peet, whom she had not seen for years, until she entered the apartment. [ 141 ] As well, Ms. Wigmore testified that everyone got into Mr. Melton’s vehicle voluntarily but Mr. Melton then “wigged out” and left the vehicle while it was moving. It seems implausible that Mr. Melton got into his vehicle of his own accord and then jumped out, an obviously dangerous thing to do, leaving his own vehicle and his possessions with his friend Ms. Peet, two strangers, and the driver, Mr. Souvie, whom he had met on only a few occasions. [ 142 ] Having considered Ms.

Wigmore’s testimony in light of her prior inconsistent police statement, I do not accept Ms. Wigmore’s evidence at trial regarding the events in question where it differed from her previous statements or the trial testimony of Mr. Melton and Ms. Peet. V. DNA Evidence [ 143 ] Expert testimony was provided by Laura Reader, who, since obtaining her Masters in Biology in 1998, has worked with the RCMP forensic lab. [ 144 ] She was qualified as an expert in

interpretation of DNA typing results by PCR methodology including comparison of questioned human DNA to known DNA and the application of statistical weight to matches found. Her qualifications were admitted by defence as were her two reports dated September 18, 2015 and December 3, 2015 in relation to the DNA profiling she conducted. [ 145 ] Ms. Reader was provided with Exhibit JV 1, which was a swab taken from the shotgun found by the police in the black backpack in the roadway near the residence where Mr. Melton was found.

The hemo stick test for the presence of blood was positive but she conceded that other elements such as sweat, rust and fecal material can also give a positive result. The analyst elected not to perform a second test to confirm the presence of blood because of concerns regarding the amount of material left. [ 146 ] Exhibit JV 2 was a blood sample provided by Mr. Melton. Exhibit JV 3 was provided by Mr. Souvie. [ 147 ] The DNA profile conducted on the shotgun swab showed a mixed profile originating from two individuals.

As a result of the DNA profiles developed for samples JV 2 and JV 3, all components of the shotgun swab were accounted for through the two samples. Ms. Reader concluded as a result that there was no third contributor. [ 148 ] Because all of the known components in the swab were accounted for, she testified it was not important to know what population the blood samples came from. In other words, all of the pieces to the puzzle were accounted for. [ 149 ] In cross-examination, Ms. Reader did indicate there was some overlap between the two DNA profiles in four of the 15 areas of DNA she looked at.

[ 150 ] Her conclusion was that both Mr. Melton and Mr. Souvie were possible contributors to the DNA found on the shotgun swab and that if a random selection was taken from the Caucasian population, one in 16,000 people would have this match. [ 151 ] Counsel for Mr. Souvie argues the DNA evidence is of limited value because Ms.

Reader provided no evidence as to how long the DNA found on the gun had been there, how DNA can be transferred to an item such as a gun, and whether DNA could have been transferred from another source onto the gun. [ 152 ] Counsel offered three alternative theories, arguing that they were equally probable: - Mr. Melton and Mr. Souvie deposited their DNA onto the gun through blood, touching or sweating - Mr. Souvie's DNA could have been transferred to the gun on some previous occasion and Mr. Melton's DNA could have been transferred to the gun from some of his personal belongings in the apartment - Mr.

Melton's and Mr. Souvie's DNA could have been deposited onto the gun by both of them touching the towel that was found in the backpack. [ 153 ] I note, however, that none of these theories was put to the expert for comment. [ 154 ] As well, our Court of Appeal reminded us in R v Dipnarine , 2014 ABCA 328 , 316 CCC (3d) 357 that “alternative inferences must be reasonable and rational, not just possible”. [ 155 ] It would be irrational to infer that the gun found by the police was not the same gun identified by Mr. Melton and Ms. Peet. [ 156 ] I conclude from Ms.

Reader’s evidence that the DNA found in the swab probably came from Mr. Souvie and Mr. Melton. [ 157 ] However, the most significant aspect of Ms. Reader's evidence is that no other person’s DNA was found on the gun, which would support the conclusion that neither Johnny nor Ms. Wigmore had left DNA on the gun. VI.

Summary of Findings [ 158 ] From the evidence I do accept, I find that Mr. Souvie demanded entry to Ms. Peet’s apartment and entered through the window with the gun in his hands. Ms. Peet under threat of the gun, buzzed in Johnny and Ms. Wigmore, and opened the door to her apartment. [ 159 ] Mr. Souvie assaulted Mr. Melton, pointed the gun at him and pulled the trigger but the gun misfired. Ms. Wigmore and Johnny did not touch the gun. [ 160 ] Mr. Souvie demanded Mr.

Melton’s laptop, his phone, the contents of his wallet and later the keys to the vehicle, which items he took. [ 161 ] Once inside the apartment, Ms. Wigmore stood over Ms. Peet and rummaged through the apartment. [ 162 ] When Mr. Melton attempted to flee the apartment, Johnny wrestled him down and he was kicked by Ms. Wigmore and Mr. Souvie. [ 163 ] Ms. Peet was kicked in the head by Ms. Wigmore and Mr. Souvie. [ 164 ] Someone put a towel over Mr. Melton’s face. He and Ms. Peet were ordered into Mr. Melton’s vehicle. Mr. Souvie drove. [ 165 ] Ms. Wigmore made no attempts to stop Mr. Souvie or to leave Ms.

Peet’s apartment and did not resist getting into Mr. Melton’s vehicle. [ 166 ] The black backpack containing the laptop wrapped in a towel, the gun, a phone and three cartridges were put in Mr. Melton’s vehicle by Mr. Souvie, Ms. Wigmore or Johnny. [ 167 ] Mr. Melton escaped from his moving vehicle about 10 blocks from Ms. Peet’s apartment. The vehicle was heavily loaded with his belongings and contents from his vehicle fell out when he jumped, including the black backpack containing the gun. [ 168 ] Johnny got out of the vehicle at some point before Mr. Souvie drove with Ms. Wigmore and Ms.

Peet to an alley near Whyte Avenue where Mr. Melton’s vehicle was abandoned. [ 169 ] Mr. Melton’s torched vehicle was located by police at 3:58 a.m. on February 19, 2014 in the alley behind 10721 - 74 Ave in Edmonton, which is near Whyte Avenue. VII. Analysis [ 170 ] I will now apply the facts as I have found to each of the counts in relation to both Ms. Wigmore and Mr. Souvie. [ 171 ] The Crown must prove beyond a reasonable doubt every element of each offence charged against each accused. [ 172 ] Under the W(

D) analysis, even if I do not accept Ms. Wigmore’s evidence at trial, I must determine if I am left with a reasonable doubt by it after considering the whole of the evidence. I will discuss in more detail shortly whether Ms. Wigmore’s trial

evidence, in the context of all of the evidence, raises any doubts regarding the offences charged against her. [173] I am mindful that even if I do not accept her evidence and am not left with a reasonable doubt by it, I must still determinewhether the Crown has proven the essential elements of the offences to which she is charged beyond a reasonable doubt. Count 1 - Break and Enter and Robbery [174] Section 348(1)(

b) makes it an offence to break and enter a place and commit an indictable offence therein. [175]

Section 321 of the Criminal Code defines “break” as meaning: (

a) to break any part, internal or external, or (

b) to open any thing that is used or intended to be used to close or to cover an internal or external opening. [176]

Section 350(

a) of the Criminal Code defines “enter” as follows: 350 For the purposes of sections 348 and 349, (

a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered;… [177]

Section 343 provides: 343 Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence orthreats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or usesany personal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [178] The Crown must prove that each of Mr. Souvie and Ms. Wigmore broke into and entered Ms. Peet’s apartment and committedrobbery while there. [179] The evidence establishes that both accused attended at Ms. Peet’s apartment on the date set out in the indictment. Mr. Souviedemanded entry to Ms. Peet’s apartment and entered through the window with the gun in his hands. Ms. Peet, under threat of the gun,buzzed in Johnny and Ms. Wigmore and opened the door to her apartment. [180] I am satisfied beyond a reasonable doubt that Ms.

Wigmore, Mr. Souvie and Johnny were not invited into the apartment by Ms.Peet, and that all three gained access only as a result of Mr. Souvie’s demand to let them in and his intimidating act of attempting to enterthe window with the gun. [181] The evidence further establishes beyond a reasonable doubt that property belonging to Mr. Melton was demanded by Mr.Souvie and was removed from the apartment and put into his vehicle. Mr. Souvie had no colour of right to the property he demanded ofMr. Melton, and he intended to deprive Mr.

Melton of that property when he demanded it and it was removed from the apartment. [182] I also find beyond a reasonable doubt that both Mr. Souvie and Ms. Wigmore assaulted Mr. Melton and Ms. Peet at the time ofstealing Mr. Melton’s property, and that Mr. Souvie was armed with a gun at the time. I find beyond a reasonable doubt that the purposeof the use of violence by both Mr. Souvie and Ms. Wigmore was to prevent or overcome resistance to the stealing. [183] Defence argues that the offence has not been proven because Ms. Peet did not see who was holding the gun when it camethrough the window.

She argues that it is possible that Johnny was at the window, and therefore the benefit of the doubt goes to theaccused. [184] However, the evidence establishes beyond a reasonable doubt that Mr. Souvie and Ms. Wigmore assaulted Mr. Melton and Ms.Peet in order to overcome resistance to the stealing of Mr. Melton’s property. It is not necessary for the Crown to establish for thepurpose of Count 1 who held the firearm during the robbery. I will discuss the evidence regarding the firearm in greater detail in relationto Count 2. [185] There was some evidence of intoxication on the part of Mr. Souvie and Ms. Wigmore.

The Crown must establish beyond areasonable doubt that the accused had the requisite intent. The offence under s 348(1)(

b) is one of general intent unless the indictableoffence committed is itself a crime that requires such proof: R v Quin, (SCC), [1988] 2 SCR 825, 90 NR 389. Robberyis a specific intent offence: R v George, (SCC), [1960] SCR 871, 128 CCC 289. Advanced intoxication is a defence tothe offence of robbery. “Advanced intoxication” means that the accused was so intoxicated that he or she did not have the necessaryintent to commit the offence. [186] Mr. Souvie and Ms. Wigmore’s acts were calculated and purposeful. I find that the evidence establishes beyond a reasonabledoubt that both Mr. Souvie and Ms.

Wigmore had the required intent to commit the offence of robbery despite any intoxication. In otherwords, Mr. Souvie and Ms. Wigmore’s intoxication does not raise a doubt regarding intent in relation to either one committing the

offence in Count 1 of breaking and entering a place and committing a robbery therein. [ 187 ] I conclude that the Crown has proven Mr. Souvie’s guilt on this charge beyond a reasonable doubt. [ 188 ] With respect to Ms. Wigmore’s culpability, nothing in her evidence raises a reasonable doubt with respect to the elements of this offence. [ 189 ] Accordingly, the Crown has established all of the elements of Count 1 beyond a reasonable doubt as against both accused. Count 2 - Robbery with a Firearm [ 190 ] Section 344(1)(

a) makes it an offence to commit robbery if a restricted or prohibited firearm is used in the commission of the offence. [ 191 ] Having found that the Crown has established beyond a reasonable doubt that Ms. Wigmore and Mr. Souvie committed robbery, I must consider whether each accused is guilty of committing a robbery in which a restricted or prohibited firearm was used. [ 192 ] I will first address the evidence in relation to Mr. Souvie. [ 193 ] Ms. Peet could not identify who was holding the gun through the window. While there was some confusion in Mr.

Melton’s evidence as to when he first saw the gun, his evidence was clear that Mr. Souvie came through the window and Mr. Melton saw the gun in his hands. Although I reject the bulk of Ms. Wigmore’s trial evidence, she too put Mr. Souvie at the window. She testified that she and Johnny were at the buzzer. [ 194 ] There was evidence that neither Ms. Peet nor Ms. Wigmore saw the gun inside the apartment. However, once in the apartment, the witnesses are consistent that Johnny and Ms. Wigmore were near the door and close to Ms. Peet, and Mr. Souvie was by Mr. Melton who was sitting on the couch. Ms.

Peet was crouched on the floor with Ms. Wigmore standing over her while the robbery was occurring. Ms. Peet’s view of the couch where Mr. Souvie and Mr. Melton were would have been at least partially obscured. In cross-examination, Ms. Wigmore said she would not have seen the gun because she was focussing on Ms. Peet and her back was towards them. [ 195 ] There is no evidence that anyone ever saw the gun in either Ms. Wigmore’s or Johnny’s hands. The DNA evidence is consistent with this; it shows the profiles of Mr. Melton and Mr. Souvie to completely account for the DNA found on the gun. [ 196 ] I accept Mr.

Melton's evidence that Mr. Souvie pointed the gun at him and used the threat of the gun in the course of demanding that he empty his wallet and hand over his keys. The evidence of Ms. Peet and Ms. Wigmore does not raise a reasonable doubt in this regard. [ 197 ] I find that the Crown has proven beyond a reasonable doubt that Mr. Souvie used a firearm while committing the robbery. [ 198 ] The Exhibits entered by agreement establish that the gun was a prohibited weapon. Mr. Souvie was neither licensed nor the holder of a certificate for the firearm. [ 199 ] I find Mr.

Souvie guilty on Count 2. [ 200 ] I must also consider whether Ms. Wigmore is guilty of this offence. [ 201 ]

Section 21 of the Criminal Code provides: 21(1) Every one is a party to an offence who (

a) actually commits it; (

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

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [ 202 ] The evidence does not establish that Ms. Wigmore touched the gun. I also accept that she may have had her back to Mr. Souvie while he was brandishing the gun toward Mr. Melton. [ 203 ] Ms.

Wigmore’s own prior inconsistent statement can be used as evidence concerning the issue of her guilt or innocence. In her police statement, she told Det. Wenngatz that Mr. Souvie fired the gun, and that Mr. Souvie ordered Ms. Wigmore to take off Mr. Melton’s shirt and the gun went off. Ms. Wigmore described the gun in her statement to the police as having tape, silver tape and a cartridge with red and gold. [ 204 ] While Ms. Wigmore may not have touched the gun, and may have had her back turned to Mr. Souvie while in Ms. Peet’s apartment, I find beyond a reasonable doubt that Ms. Wigmore was aware that Mr.

Souvie or Johnny had the gun in the apartment and was using it in the commission of the robbery. I have also found that she committed acts which assisted Mr. Souvie in carrying out the robbery. She kept watch over Ms. Peet, helped keep Ms. Peet and Mr. Melton in line by delivering some kicks, and rummaged through the apartment. Again, none of her evidence raises a reasonable doubt regarding her involvement in the joint enterprise.

[205] I conclude that the Crown has established beyond a reasonable doubt all elements of the offence under Count 2 in relation toMs. Wigmore. Count 3 - Possession of a Prohibited Firearm Knowing there was no Licence andRegistration Certificate [206] Section 92(1) of the Criminal Code provides: 92(1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm... knowing that the person is notthe holder of (

a) a licence under which the person may possess it; and (

b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it. [207] Section 4(3) of the Criminal Code defines “possession”: 4(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [208] I have already found that the gun was a prohibited weapon and that Mr. Souvie was neither licensed nor the holder of acertificate for the firearm. The only reasonable inference is that he knew his own status. [209] I have also found that the Crown has established beyond a reasonable doubt that Mr. Souvie had the firearm in his personalpossession during the robbery. [210] I find Mr.

Souvie guilty of Count 3. [211] As for Ms. Wigmore, there is no evidence that she had personal possession of the gun. Even if her possession could beestablished on some other basis, s 92(1) requires that the possessor know that s/he does not have a licence or certificate. I have inferredthat Mr. Souvie knew he had no authorization to possess the gun. I have no difficulty inferring that Ms. Wigmore probably knew that Mr.Souvie would not have a licence or certificate. However, the lack of evidence on this point leaves me with a reasonable doubt regardingMs.

Wigmore’s liability as a joint or constructive possessor under s 92(1) or as a party under s 21. Therefore, I find Ms. Wigmore notguilty of Count 3. Count 4 - Kidnapping While Using a Prohibited Firearm [212]

Section 279 of the Criminal Code provides: 279

(1) Every person commits an offence who kidnaps a person with intent (

a) to cause the person to be confined or imprisoned against the person’s will...

(1.1) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence... [213] I will first address this charge in relation to Mr. Souvie. [214] The Crown must prove beyond a reasonable doubt that Mr. Souvie unlawfully took Mr.

Melton away by force, against hiswishes, to another place, with the intent to confine or imprison him, against his will. [215] The offence of kidnapping is an aggravated form of unlawful confinement that continues from the time the victim isapprehended until the victim is freed and requires the taking of the person from one place to another: R v Oakley (1977), 1977ALTASCAD 118 , 36 CCC (2d) 436, 4 AR 103 (CA). [216] The evidence establishes beyond a reasonable doubt that Mr. Souvie committed the actus reus of the offence by forcing orcoercing Mr. Melton and Ms. Peet into Mr. Melton’s vehicle against their will.

I do not believe Ms. Wigmore's evidence that everyonegot into Mr. Melton's vehicle voluntarily, nor does it leave me with a reasonable doubt. I accept the evidence that Mr. Souvie demandedMr. Melton’s keys. The police found Ms. Peet’s apartment door unlocked and the window open. Mr. Melton’s lack of shoes and coat,and Ms. Peet’s evidence that her shoes were off at some point in the vehicle, the fact five people were jammed in without anyone takingthe time to remove some belongings and flip down the rear seats, and the unchallenged evidence that during the ride, Mr. Melton kickedboth Mr. Souvie and Ms.

Wigmore in the head in the process of jumping out the moving vehicle, corroborate Ms. Peet's and Mr. Melton's

evidence that they were both forced into the vehicle against their will and taken some distance away. [ 217 ] I must also consider whether a prohibited firearm was used in the commission of the offence of kidnapping. [ 218 ] Mr. Melton lost sight of the gun after he was on the ground by the door of the apartment and kicked. He was bleeding from the head at that point. Neither he nor Ms. Peet gave evidence of seeing the gun placed in the backpack, or the backpack being carried out to the vehicle. Mr.

Melton does recall his blue and black backpack being carried out to the vehicle. [ 219 ] Nonetheless, kidnapping is a continuing offence which begins with the taking of the victim, which in this case occurred in the apartment. I find that the unlawful movement of Mr. Melton was facilitated by Mr. Souvie’s threat in the apartment to use the firearm against Mr. Melton. [ 220 ] The mens rea requires that the Crown prove that Mr. Souvie intended to confine Mr. Melton.

Unlawful confinement requires actual physical or coercive restraint, and can include fear, intimidation or other psychological means: R v Kematch , 2010 MBCA 18 , 252 CCC (3d) 349. Unlawful confinement does not require proof of a mental element beyond the intent to deprive Mr. Melton of his freedom. [ 221 ] I am satisfied on the evidence that the Crown has proven beyond a reasonable doubt that Mr. Souvie intended to deprive Mr. Melton of his freedom. [ 222 ] I find that the Crown has established beyond a reasonable doubt that Mr. Souvie kidnapped Mr.

Melton while using a prohibited firearm. [ 223 ] I will now address this charge in relation to Ms. Wigmore. [ 224 ] Ms. Wigmore can be convicted of these charges if she was a principal, or under s 21(1) if she was a party to the offence committed by Mr. Souvie. [ 225 ] A person who chooses to participate in a victim’s confinement, having knowledge that the victim has been kidnapped, may be held responsible for the offence of kidnapping under s 21(1): R v Vu , 2012 SCC 40 , [2012] 2 SCR 411. [ 226 ] Ms. Wigmore aided Mr. Souvie in the robbery by keeping watch over Ms. Peet and later, helping keep Ms. Peet and Mr.

Melton in line by delivering some kicks and helping Johnny to usher them out to the vehicle. There is also evidence she was rummaging through the apartment. [ 227 ] Ms. Wigmore’s police statement reflects knowledge of the gun and its association with the backpack. This knowledge must have been acquired at some point in the course of the evening as the backpack, with the gun, was later retrieved from the roadway. [ 228 ] Ms. Wigmore knew, from the actions and words of Mr. Souvie, the efforts to place a towel or pillow case over Mr. Melton’s face or head, and the reactions of Mr. Melton and Ms.

Peet, that they were being forced into Mr. Melton’s vehicle and moved from Ms. Peet’s apartment against their will. [ 229 ] There is no evidence Ms. Wigmore resisted getting into the vehicle or made any attempts to stop Mr. Souvie at any point that evening. Ms. Wigmore testified that she slapped Mr. Melton in the vehicle, after he kicked her in the head while trying to get out of the vehicle. [ 230 ] Ms. Peet testified that after Mr. Melton jumped from the vehicle, Mr. Souvie continued driving and eventually stopped the vehicle and told Ms. Wigmore to take Ms. Peet and walk up an alley. Ms.

Wigmore stated in her police statement that Ms. Peet asked her to tell Mr. Souvie to let her go, but Ms. Wigmore refused and said she was not doing that. [ 231 ] The evidence establishes beyond a reasonable doubt that Ms. Wigmore was aware that Mr. Souvie’s gun had played a

part in the threat to and intimidation of Mr. Melton and Ms. Peet. The evidence also establishes that she was a willing participant in the confinement and transport of Mr. Melton and Ms. Peet. She chose to participate in their confinement, knowing that they did not want to enter the vehicle. [ 232 ] I find that the Crown has established beyond a reasonable doubt that Ms. Wigmore is guilt as a party under s. 21 to the offence under Count 4.

Count 5 - Causing Damage by Fire to a Motor Vehicle [ 233 ] The Crown conceded that insufficient evidence was called in relation to this charge and the Court consequently dismissed it. Count 6 - Occupying a Motor Vehicle knowing there was a Prohibited Firearm in the Vehicle [ 234 ] Section 94(1) makes it an offence for a person to occupy a motor vehicle in which the person knows there is a prohibited firearm. [ 235 ] Defence counsel argues that the Crown is required to prove beyond a reasonable doubt that Mr. Souvie and Ms. Wigmore knew the backpack containing the gun was placed in the vehicle. [ 236 ] Mr.

Melton’s evidence is unclear on this issue. He recalled Mr. Souvie exiting the apartment first, followed by Ms. Wigmore

and the second male who were escorting and guarding Ms. Peet and Mr. Melton. He recalls that “they” grabbed his blue and black backpack which contained his toiletries and placed it in his vehicle. He did not see who placed the backpack in the vehicle. [ 237 ] He gave no evidence regarding what happened with the gun or the second black backpack and he did not see who put the gun in the backpack. Further, he could not say whether Mr. Souvie had anything in his hands when he left the apartment. [ 238 ] As I stated earlier, there is no evidence that anyone ever saw the gun in either Ms. Wigmore’s or Johnny’s hands.

The DNA evidence does not suggest otherwise, as it shows the profiles of Mr. Melton and Mr. Souvie to completely account for the DNA found on the gun. [ 239 ] I find that only reasonable inference to be drawn is that the gun was placed in the backpack by Mr. Souvie. He had personal possession of it in the apartment. Regardless of who placed backpack containing the gun into the vehicle, I find that Mr. Souvie had knowledge that the gun was in the vehicle. [ 240 ] The Crown has established beyond a reasonable doubt that Mr. Souvie is guilty of the offence in Count 6. [ 241 ] As for Ms.

Wigmore, I have already found that she was a party to the robbery with a firearm. [ 242 ] While I have no difficulty in finding that she probably knew the gun was among the items placed in the vehicle, the evidence does leave room for a reasonable doubt that she was aware the gun was put in the backpack, which was then placed in the vehicle. I find Ms. Wigmore not guilty on Count 6.

Count 7 - Carrying a Firearm in a Careless Manner [ 243 ] Section 86(1) makes it an offence to, without lawful excuse, carry a firearm in a careless manner or without reasonable precautions for the safety of other persons. [ 244 ] This offence involves an objective test of whether there is a marked departure from the reasonable standard in the use, handling or storage of a firearm. [ 245 ] In my view, Mr. Souvie’s brandishing of the gun in the course of the robbery and placing the gun and the cartridges in a backpack would satisfy this objective test.

There is nothing that would detract from the normal inference drawn from the evidence that he failed to direct to his mind to the risk and the need to take care. [ 246 ] I find Mr. Souvie guilty on Count 7. [ 247 ] As for Ms. Wigmore, there is no evidence that she ever handled the gun. She was aware that the gun was being used in the robbery in the apartment. There was evidence that she heard it fired, and evidence that it misfired, however she testified that her back was to Mr. Souvie when he was dealing with Mr. Melton in the apartment.

The evidence does not establish beyond a reasonable doubt that she knew or ought to have

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