R v Bird, 2018 ABQB 1026

Court of Queen’s Bench of Alberta Citation: R v Bird, 2018 ABQB 1026 Date: 20181218 Docket: 150219624Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Alan Devon Bird Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ I - Introduction [ 1 ] On February 22nd, 2015, Alan Devon Bird (the “Accused”) shot and killed Jamie Orellana (the “Deceased”).

The Accused applies for a directed verdict of acquittal on his first degree murder charge on the grounds that the Crown has not lead sufficient evidence of planning and deliberation. In reply, the Crown argues that the Accused is estopped from raising this issue because he made similar arguments contesting his committal at his preliminary inquiry and before my brother, Poelman J, on a certiorari application seeking to quash the committal.

[ 2 ] For the reasons below, I conclude that the Accused is not estopped from applying for a directed verdict on first degree murder. The Crown cannot rely on issue estoppel in criminal proceedings and, in any event, the certiorari application to quash the committal did not answer the same question as the one before me. Further, the committal and certiorari decisions were not final decisions of the issue. I also find, based on the whole of the Crown’s evidence, that a properly instructed jury, acting reasonably, could not convict the Accused of first degree murder.

The evidence does not reasonably support an inference of planning or deliberation beyond a reasonable doubt. II – The Crown’s Evidence [ 3 ] The Crown called several witnesses to give viva voce testimony, including civilians and police officers. Also tendered were medical and forensic evidence, telephone records, statements by the Accused, and the preliminary inquiry evidence of additional witnesses.

While I have heard and considered all of the Crown’s evidence to decide this application, I will only refer in these reasons to the evidence that either the Crown or the Accused rely on as relevant to the issue of planning and deliberation. A – Agreed Facts [ 4 ] The Crown and the Accused admitted the following for the purpose of the trial per

section 655 of the Criminal Code , RSC 1985, c C-46: (

a) The events took place in the City of Calgary, Province of Alberta; (

b) The identity of the Deceased; (

c) The identity of the Accused as the individual who shot the Deceased and caused the Deceased’s death; (

d) The continuity and integrity of all exhibits collected by Calgary Police Service members during the investigation, including a pistol found in a nearby golf course where the Accused was arrested and 7 spent shell casings found at the scene of the shooting; (

e) The Deceased’s death was caused by multiple gunshot wounds as reported by Dr. Adeagbo in his autopsy report dated September 28, 2015. B – Alden Paradise ( Viva Voce Testimony) [ 5 ] Alden Paradise was the Deceased’s friend and roommate. They lived together in a duplex at 402A, 26th Avenue NE, just off Edmonton Trail NE, in Calgary, Alberta. Joshua Ritchie was their other roommate. A female neighbour resided in the duplex in unit 402B. Paradise was acquainted with her, but did not know her well. [ 6 ] February 22nd, 2015 was a warm and sunny day. Paradise awoke around 1:30 or 2 pm.

He and the Deceased went out for a smoke and saw the Accused seated on the front porch. Paradise had seen the Accused before in passing. He knew the Accused as a person who dated the female neighbour in 402A. The Accused did not look up as the men came outside. [ 7 ] Paradise saw the Accused slouched over, elbows on his knees, and thought the Accused appeared upset about something. He seemed unhappy. Paradise and the Deceased started talking. The Accused went to the back of the duplex.

The house started shaking. [ 8 ] Paradise and the Deceased went around to the back of the duplex and found the Accused kicking the door. They asked him to stop. The Accused told them to “do something about it”. [ 9 ] The pair went back to the front of the house, single file. Paradise walked in front. The Deceased walked behind him. Suddenly, the Accused came between the men. The Accused invited the pair to “do something about it”, asking “What are you going to do?” [ 10 ] Paradise replied, “This is what we’re doing. We’re asking you to stop.” [ 11 ] The Accused continued to confront the men.

The Accused told the pair, “This bitch has my shit in her house. I need my shit,” referring to their female neighbour in 402B. [ 12 ] When the trio returned to the front of the duplex, Paradise went to the 402A side of the porch and continued to smoke his cigarette. Paradise and the Accused looked at each other. The Accused continued his confrontational demeanour, inviting Paradise to “do something about it.” [ 13 ] The Deceased came between the two and said, “Do you want me to do something about it?” [ 14 ] The Accused replied, “Then do something.

You’re not going to do nothing.” The Accused appeared very confrontational and agitated. [ 15 ] The exchange continued back and forth. Then, the Deceased punched the Accused in the jaw and said, “Now, you do something about it.” [ 16 ] The men were standing near the door to 402B. After the punch, the door to 402B opened. The Accused answered, “I’m not going to do anything about it,” entered 402B and closed the door.

[ 17 ] After the Accused left, Paradise and the Deceased sat on the porch, smoking. Paradise felt that the confrontation was not over and told the Deceased he was worried the Accused would return. The Deceased replied, “Well, you know, what happens, happens. I did what I did.” [ 18 ] Paradise stood by the entrance to 402A. The Deceased armed himself with a cobblestone rock or patio stone. He sat on the porch, facing the street. The door to 402B was behind him. [ 19 ] The door opened. The Deceased looked back.

Paradise heard him say, “Oh, shit,” as he started running. [ 20 ] Paradise saw the Accused through the open doorway, pistol drawn. The female neighbour stood atop the stairs inside 402B and screamed, “No, no, no, no, no.” [ 21 ] The Accused fired at the Deceased as he fled. Paradise retreated into 402A, down the stairs and into a bedroom. After a couple seconds, Paradise heard another shot. Another brief pause occurred before the third shot. Then Paradise heard three consecutive shots in quick succession.

Paradise heard 5 or 6 shots. [ 22 ] Approximately 1 minute elapsed from the time the Deceased punched the Accused to the time the Accused opened the door and had the gun. It could not be less than 45 seconds and it could have been a little more than a minute. [ 23 ] A short while later, Paradise went upstairs with Josh Ritchie. Paradise found the Deceased laying on the ground. The Accused was gone. Paradise went to help his friend. The Deceased vomited blood, but was otherwise not responsive.

First responders arrived soon after. [ 24 ] Paradise did not see any type of weapon on the Accused up to the point where the Deceased punched the Accused. Paradise and the Deceased did not have any “bad blood” with the Accused from any of their prior brief interactions. C – Victor Hart (Preliminary Inquiry Transcript) [ 25 ] Victor Hart was the Deceased’s friend and co-worker. They had known each other for about a year. They worked concrete together. [ 26 ] On the afternoon of February 22nd, 2015, Hart was laying on the couch in the Deceased’s Livingroom watching TV.

The men were enjoying a lazy afternoon as they recovered from a long night of beer and poker. Josh was in his room downstairs. The Deceased and Paradise went out for a smoke. [ 27 ] Hart heard banging on the back and front doors. Hart heard bits and pieces of an argument brewing outside in between whatever was playing on the TV. Hart heard the voice of a young man who “wanted his stuff out of the house”. He recognized the Deceased’s voice as the Deceased said, “Stop it, you’re going to kick the door in.” [ 28 ] After a brief moment, Hart decided to check in with his friends outside.

Paradise told Hart that the Deceased had struck the young man they were arguing with. Paradise told Hart, “I think he’s going to come out with something.” [ 29 ] Hart went inside to put clothes on. He went to the washroom to get changed. Before he got his pants on he heard shots from a gun. The washroom was about 25 feet from the front entrance to the duplex, where he had left his friends. [ 30 ] The shots rang out like firecrackers. Hart looked out the window. The Deceased was lying on the ground.

He yelled to Ritchie, “You’re not going to believe this, but I think Jaime’s just been shot.” [ 31 ] Hart rushed out the door to try to help the Deceased. Hart and a couple of bystanders, including the neighbour, attempted to do CPR to help the Deceased. [ 32 ] Approximately 2 minutes elapsed from the time Hart checked in on his friends after the punch to the time Hart heard the shots. It could have been less than 2 minutes. It could have been 1 minute or even less than 1 minute. [ 33 ] Hart never saw the Accused.

D – Josh Ritchie ( Viva Voce Testimony) [ 34 ] Josh Ritchie was the Deceased’s friend and roommate. [ 35 ] On the afternoon of February 22nd, 2015, Ritchie awoke to a loud banging noise. His bedroom was in the basement of the duplex. Paradise and the Deceased were outside.

Ritchie could hear the Deceased in an argument with another person outside. [ 36 ] He opened his bedroom window and asked, “What happened?” [ 37 ] Paradise told him, “There’s someone trying to get into the house next door.” [ 38 ] Ritchie thought he saw the Deceased punch someone, but all he could really see was the Deceased’s back. [ 39 ] After the punch, Ritchie went to the washroom down the hall from his room. Then he walked back and heard 6 or 7 loud bangs. The bangs were consistently spaced apart in time.

There were perhaps 1 to 2 seconds in between shots. [ 40 ] Approximately 30 to 45 seconds elapsed from the time the Deceased threw the punch to when Ritchie heard the loud bangs.

Paradise ran into the house in Ritchie’s room, locking himself in. [ 41 ] After a moment, Paradise let Ritchie into his room. They looked out the bedroom window and saw the Deceased laying on the ground. [ 42 ] Ritchie and Paradise went outside. Paradise attempted to do CPR on the Deceased. Their neighbour was outside as well. She was crying. [ 43 ] He saw the neighbour girl a few times in passing in the past. Ritchie saw the Accused go into the neighbour’s house a few times in the past. Ritchie had no prior animus with anyone who lived in the neighbouring suite in the duplex.

He was not aware of anyone in his unit, 402A, who had “any beefs” or animus with anyone in 402B. There were no prior issues with the Accused. E – Steven Hill (Preliminary Inquiry Transcript) [ 44 ] Steven Hill lived a few houses down from 402 26th Ave. On the afternoon of February 22nd, 2015, he was in his Livingroom watching TV when he heard 3 quick loud bangs. Two quick loud bangs soon followed. They sounded like gunshots. [ 45 ] He got off his couch and ran to the front door. The Accused ran down the street past his house towards the Elks Golf Course. The Accused wore baggy pants and his boots were open.

He ran awkwardly. F – Doug Jessen (Preliminary Inquiry Transcript) [ 46 ] Doug Jessen also lived a few houses down from 402 26th Ave. February 22nd 2015 was beautiful, warm, sunny day. Jessen was at home in the afternoon. He went out to his front step to put the garbage out. He stood out on the steps for a few moments, enjoying the sunny chinook weather. Then he heard a gunshot. [ 47 ] Two more quick shots came in quick succession. He heard shouting – male and female voices - and two more shots. [ 48 ] Jessen went into his house and locked the door.

He called 911. [ 49 ] Jessen is familiar with handguns and shoots regularly. He heard a pause of approximately 1 second in between the first and second shots. The second and third shots came in rapid succession. A second or a second and a half elapsed. Then another two quick shots were fired. G – Ghyslaine Bigras (Preliminary Inquiry Transcript) [ 50 ] Ghyslaine Bigras also lived a few houses down from 402 26th Ave. She was at home on February 22nd, 2015. She was getting cable installed. As she was letting the cable guy in to her home, she heard gunshots. [ 51 ] Bigras went outside and witnessed the shooting.

She heard 4, 5, or 6 gunshots fired within 10 seconds. She saw the shooter. It was the third time she had seen him around the neighbourhood. It was the Accused. [ 52 ] After the shooting stopped, Bigras saw the Accused leave, running or walking away, gun in hand. Bigras had her husband call 911. She stepped outside again and saw the Deceased lying on the ground. [ 53 ] A woman attempted to do CPR on the Deceased. Blood was running from the Deceased’s mouth. Then the police and ambulance came. The scene made Bigras feel sick.

H – Andrew O’Neill ( Vice Voce Testimony) [ 54 ] Andrew was a satellite system installer for Shaw. On the afternoon of February 22nd, 2015, he was working in the vicinity where the shooting took place. He was called to do an installation for Ghyslaine Bigras. He arrived at her residence around 2 pm. [ 55 ] As he drove to Bigras’ house he observed a party at 402 26th Ave – the duplex. He saw 2 or 3 guys having beers at the front of the house. He parked in front of 404 26th Ave. He walked to Bigras’ house. [ 56 ] He rang the doorbell. Bigras answered.

Then he heard 2 or 3 shots. [ 57 ] Bigras pulled him into her house in response. He went back out to see what had happened. He saw an individual from the waist up – a fence blocked his view. The man he saw was pointing at the ground, shooting down. He could not see what he was shooting at. [ 58 ] O’Neill moved and from his new vantage point could see an individual on the ground. The individual was directly below the shooter. The shooter taunted the man on the ground, saying, “not so tough now,” as he stood over him.

The shooter fired 2 or 3 more shots. [ 59 ] The first 2 or 3 shots occurred pretty close together, back to back. The next 2 or 3 shots were similarly timed, back to back. [ 60 ] A girl started to scream. The shooter packed up his gun in his bag. The shooter walked away. The shooter appeared very calm as he walked away.

I - Kenny Robertson ( Viva Voce Testimony) [ 61 ] Kenny Robertson lived in the area with his uncle, Homer Arp, and his aunt, Janice Robertson. Their house was “kitty corner” to the duplex that the Deceased resided in. On the afternoon of February 22nd, 2015, Robertson, his Uncle, Aunt, and Cousin were in their truck in their driveway waiting for an opening to back out onto Edmonton Trial. [ 62 ] Robertson was seated behind his uncle, who was in the driver’s seat. Robertson’s attention was fixed on the traffic on Edmonton Trail when suddenly he heard 4 fast pops. He turned his gaze and saw 2 men.

One fell over holding his stomach. Then, 2 more shots were fired. [ 63 ] The first 4 shots were quick, without much time in between each shot. The second volley of shots came a second or half a second later, after the Deceased was on the ground. [ 64 ] The Accused stood in front of the Deceased. Either before or after the 4 shots, the Accused said “Sup now?” or something to that effect. [ 65 ] After the shooting, the Accused grabbed a bag off the porch of the duplex and started to walk away down the street. Once the Accused noticed people starting to come out of their houses, the Accused started to run.

J – Homer Arp ( Viva Voce Testimony) [ 66 ] Homer Arp lived in the area with his girlfriend Janice Robertson and nephew, Kenny Robertson, and others. [ 67 ] February 22nd, 2015, was a clear sunny day. Around 2 pm, Homer was in his truck backing out of his driveway. His nephew was in the passenger seat behind him. His girlfriend was in the front passenger seat. They were accompanied by 3 children. [ 68 ] Suddenly, Arp heard 2 or 3 loud bangs or pops. He thought they may have been fireworks. The pops came quickly and consecutively.

Arp looked and saw 2 men standing in front of the duplex that was situated kitty corner to his house. The men stood face to face. [ 69 ] Arp instinctively moved to get the children back into the house as soon as possible. He heard 2 or 3 more pops. There was perhaps a 3-5 second gap between the 1 st and 2 nd set of pops. The gap was not long. The 2 sets of pops came quite quickly one after the other. [ 70 ] Arp heard at least 3 or 4 pops or bangs in total. He and the children went into the house.

Once Arp was inside, he looked out the side window and saw people running and someone standing over the Deceased’s body. K – Janice Robertson ( Viva Voce Testimony) [ 71 ] Janice Robertson lived in the area with her boyfriend Homer Arp and her nephew, Kenny Robertson. [ 72 ] On the afternoon of February 22nd, 2015, she was seated in the front passenger seat of their truck. She heard 2 shots. She thought they may have been firecrackers. [ 73 ] She got out of the truck and looked across the street. She saw that a man was shot and he lay on the ground.

He was outside the duplex that was kitty corner to her house. [ 74 ] She saw the shooter standing over the man on the ground. The shooter fired 3 or 4 more shots into the man on the ground. The time between the first 2 shots and the 3 or 4 additional shots was 2-3 seconds. [ 75 ] After the shots were fired, she grabbed the children who were in the truck and brought them into the house. [ 76 ] She saw the shooter proceed eastbound down the street towards the golf course. She does not recall if he was walking or running. L – Darrell Lyse ( Viva Voce Testimony) [ 77 ] Darrell Lyse lived in the area.

On the afternoon of February 22nd, 2015, he was at home watching TV in his living room. He heard 3 or 4 pops that sounded like firecrackers. He got up and walked into his kitchen to look out the window into the street. [ 78 ] Across the street, he saw someone with their hand pointed down at an angle. Flashes came from his hand. Accompanying the flashes were 3 or 4 more pops. [ 79 ] Lyse heard 3-8 pops in total. The first 3-4 were spaced 1 second apart. The second set were spaced 1 second apart. The gap in between was approximately 5-8 seconds. [ 80 ] Lyse grabbed his cellphone and called 911.

He went outside and crossed the street. There, he saw several people around. There was a body on the ground. M – Veronica Mugarab-Samedi ( Viva Voce Testimony)

[ 81 ] Veronica Mugarab-Samedi lived in the area with her family. On the afternoon of February 22nd, 2015, she was sitting with her youngest son in his room working on his CV. [ 82 ] She heard sounds that she thought may have been nailguns used for construction. She heard 3 or 4 pops. Then 1 and then 2 more. She thought it may have been roof repair. She heard 6 pops in total. [ 83 ] Her husband was in the living room. He shouted to her that someone had been shot and she should call 911. She called 911.

Then she looked out the window and saw a man lying on the ground. [ 84 ] She also saw another man, medium height, black hair, walking in the direction of the golf club. He walked slowly at first, then he moved faster, before starting to run. He was not in a rush. She did not see his face. N – Azar Mugarab-Samedi ( Viva Voce Testimony) [ 85 ] Azar Mugarab-Samedi lived in the area with his family. On the afternoon of February 22nd, 2015, he was in his living room watching TV. He heard 4 or 5 strong sounds coming from outside. [ 86 ] He looked out the window and saw a man shooting another man.

Behind him was a young lady. She was crying saying, “Don’t do that”. The shooting was in front of the duplex. [ 87 ] He saw 2 or 3 shots. At that point, the shooter was 1.5 metres from the man being shot. The man being shot was lying on the ground as the last 2 or 3 shots were fired. [ 88 ] The gun was a black pistol. [ 89 ] He heard maybe 8 shots in total. [ 90 ] After the shots, the shooter walked down the street on the side of the road. He put his gun inside his black backpack. The shooter appeared calm. First the shooter ran, and then he walked.

O – Anar Mugarab-Samedi ( Viva Voce Testimony) [ 91 ] Anar Mugarab-Samedi is 26 years old. His mother is Veronica and his father is Azar. On the afternoon of February 22nd, 2015, he was studying in his basement bedroom. He heard a gunshot. He went upstairs to investigate. He heard between 3 and 6 gunshots. All of the gunshots came within a short period of time within one another. [ 92 ] He went to the living room and saw a man on the ground. Another man was walking off towards the golf course. First the man walked, then he jogged.

P – Faud Mugarad-Samedi ( Viva Voce Testimony) [ 93 ] Faud Mugarab-Samedi is 22 years old. He lived in the area with his mother, Veronica, father, Azar, and older brother, Anar. [ 94 ] On the afternoon of February 22nd, 2015, he was talking with his mother in his bedroom. He heard gunshots. His mother thought it was construction. He heard more than 4 gunshots. There was not much time in between shots, maybe a second in between. Azar came into Faud’s bedroom and told them someone had been shot. Faud ran to the living room. [ 95 ] Faud saw someone lying on the ground outside the duplex at 402 26 Ave.

Faud saw a man walking away slowing. The man eventually quickened his pace. He appeared to have a sense of urgency, like he should not be there. Q - The Accused’s Statements [ 96 ] The Accused voluntarily made a number of spontaneous admissions on arrest. These were also a part of the agreed statement of facts. [ 97 ] He said, “I’m sorry man, I fell victim to the system.” [ 98 ] He also stated, “I know between right and wrong and yet I do wrong. I know I’m supposed to do good in life.” [ 99 ] He further stated, “I just want society to feel what I feel.

I’m angry and I want them to feel the same.” [ 100 ] He also said, “I’m sorry,” several times and remarked that “It’s weird that people know right from wrong, but do the wrong thing anyways.” [ 101 ] In an exchange with an officer, the Accused said, “I’ve had a lot to live up to being a Bird.” The officer `asked what that meant. The Accused replied, “My family is like that man, I have a lot to live up to...My life has changed – do you know is he still alive?” III - Procedural History

A – The Preliminary Inquiry - R v Bird, 2016 ABPC 3 [102] The Accused contested his committal for first degree murder. Daniel PCJ committed the Accused to stand trial for first degreemurder. She found there was “some evidence” that “reasonably supports” an inference of planning and deliberation: at para 55. She alsoset out a list of evidence to support her conclusion which I will not reproduce. [103] In sum, Daniel PCJ relied on evidence of a gap between 2 different sets of shots fired by the Accused. This gap gave him time topause and consider whether or not he wanted to kill the Deceased: at para 56.

The Accused had a motive to kill the Deceased after theDeceased punched the Accused. The Accused’s course of action, choosing to arm himself and to come back outside, firing 2 vollies ofshots, was consistent with a cold-blooded killing: at paras 58-59.

The Accused walked away from the scene, indicating he was thinkingclearly and rationally, and attempting to escape, all consistent with planning and deliberation: at para 61. [104] For Daniel PCJ, this evidence, considered as a whole, constituted “some evidence” to support a reasonable inference that theAccused was not acting impulsively, that he knew right from wrong, and choose to kill the Deceased after planning and deliberating: atpara 63. B – The Certiorari Application - R v Bird, 2017 ABQB 115 [105] The Accused applied for certiorari to quash his committal for first degree murder.

Poelman J dismissed the Accused’sapplication. [106] His role as a reviewing judge on a certiorari application was limited to ensuring that that Daniel PCJ did not exceed herstatutory jurisdiction: at para 16.

Poelman J followed R v Tran, 2005 ABQB 852 at para 8, 389 AR 25, which adopted thefollowing test from R v Penney, [2004] OJ No 5914 (QL) at para 64 (Ont SCJ): [M]y task is to decide whether there was any evidence on which the provincial court judge could form the opinion that there was someevidence reasonably capable of supporting the inferences required to establish the essential elements of planned and deliberate...firstdegree murder. [107] Poelman J instructed himself that he did not need to determine whether Daniel PCJ’s reasoning was entirely correct.

Rather, histask was to determine whether there was a “total failure of evidence” to support the committal: at paras 17-18. [108] Poelman J found, on the whole of the evidence, that there was evidence to support Daniel PCJ’s finding of a reasonableinference of planning and deliberation: at paras 54-60. The Accused had time to plan and deliberate between when he was punched andwhen he commenced shooting. He had the opportunity to consider the consequences of his actions and choose to retrieve the gun.

Thathe did not have an effective escape plan did not negate this inference because getting caught may have been an accepted consequence ofthe calculus for cold-blooded murder: at paras 54-55. [109] Poelman J concluded that there was “evidence on which the [PCJ] could form the opinion there was some evidence reasonablycapable of supporting the inferences required to establish the elements of planning and deliberation”: at para 61.

IV – Issue Estoppel in Criminal Proceedings [110] The Crown argues that the Accused is estopped from asking for a directed verdict of acquittal because he raised the same issueat the preliminary inquiry and in his certiorari application and lost.

The Crown framed its argument partly resting on res judicata, whichin this case takes the form of issue estoppel, and partly resting on my case management powers as a trial judge. [111] I disagree with the Crown’s position on issue estoppel because: (1) the Crown cannot rely on issue estoppel in criminalproceedings; and (2) in any event, the requirements for issue estoppel are not met.

A – The Crown Cannot Rely on Issue Estoppel in Criminal Proceedings [112] Issue estoppel in this context is concerned with whether the issue on this directed verdict application is the same as the issuedecided in the certiorari decision: R v Mahalingan, 2008 SCC 63 at para 16, [2008] 3 SCR 316. However, in Mahalingan, theSupreme Court of Canada confined the operation of issue estoppel in criminal law to circumstances where an accused relies on it topreclude the Crown from leading evidence which is inconsistent with findings made in the accused’s favour in a prior trial: Mahalinganat para 2.

While some paragraphs in Mahalingan (e.g. para 57), if read in isolation, may suggest that the Court’s holding was not sobroad, when the entirety of the Court’s reasons are read in context it is clear that issue estoppel is no longer an available argument for theCrown in criminal proceedings. [113] Mahalingan was charged with attempted murder arising out of a gang attack in Markham, Ontario, in 2002. He was acquittedof attempted murder but convicted of the included offence of aggravated assault.

The Crown lead evidence at trial to the effect thatMahalingan had called a witness from jail to request that the witness not testify against him. Mahalingan was subsequently tried forobstruction of justice with respect to this incident, but he was acquitted. He appealed his conviction for aggravated assault, arguing thathis acquittal on the obstruction of justice charge retrospectively estopped the Crown from leading evidence of his alleged obstruction ofjustice at his attempted murder trial: Ibid at para 87. [114] The Court of Appeal for Ontario split.

A majority found that the Crown’s evidence was inadmissible because it could not leadevidence that underlay an acquittal in a prior trial: Ibid at para 88. Blair JA dissented. He would not have applied issue estoppelretrospectively to render the Crown’s evidence inadmissible: Ibid at para 89. On appeal to the Supreme Court, the Crown argued that

issue estoppel should no longer apply in criminal proceedings: Ibid at para 10. [115] McLachlin CJ wrote for the majority. She framed the issue as whether issue estoppel should be excised from criminal lawentirely or whether it should be retained in a narrower, less problematic form: Ibid at para 1. Charron J wrote in dissent. She agreed thatthe issue was “should the doctrine of issue estoppel be retained in the field of criminal law”: Ibid at para 83. Charron J, along withDeschamps and Abella JJ, would have held that issue estoppel no longer applied in Canadian criminal law: Ibid at para 84.

This is thecontext in which McLachlin CJ wrote at para 57: Mutuality, at its most basic level, simply means that the parties in the two proceedings must be the same: see C.U.P.E.; H. Stewart,“Issue Estoppel and Similar Facts” (2008), 53 Crim. L.Q. 382, at p. 383. It has sometimes been understood, however, in the broadersense of requiring that the principle of issue estoppel apply to both parties in identical fashion.

In this sense, mutuality has never beenpart of Canadian criminal law, which recognizes that the presumption of innocence and the requirement that the Crown must prove everyelement of its case beyond a reasonable doubt trump issue estoppel. Where the Crown seeks to estop an accused from contesting thisinnocence based on decisions against the accused in prior criminal proceedings, the claim for estoppel will fail.

To permit the Crown torely on issue estoppel in these circumstances would offend the presumption of innocence and the requirement that the Crown in acriminal proceeding bears the burden of proving its case beyond a reasonable doubt. [116] It may be tempting to read this passage as suggesting that the Crown may rely on issue estoppel where the resolution of theissue does not require an application of the reasonable doubt standard.

However, I read McLachlin CJ as saying, in keeping with theoverall issue in Mahalingan and the general thrust of her reasons, that the Crown can never rely on issue estoppel because its operationin criminal law is only justified in the narrow circumstances where it operates to prevent the Crown from relitigating an issue that hasbeen determined in the accused’s favour in a prior criminal trial: see Ibid at para 31. [117] This conclusion is reflected in a leading text on the doctrine of res judicata in Canada: The prevailing authorities maintain that issue estoppel in criminal law is not reciprocal as it is in civil law.

It is not available to theCrown. It is solely a defence for the accused where the later charge requires a determination of an issue which was conclusively decidedin favour of the accused in a prior proceeding. Donald J Lange, The Doctrine of Res Judicata in Canada, 4th ed (Markham: LexisNexis, 2015) at 384 (footnotes omitted) [118] The Crown cannot rely on issue estoppel in criminal proceedings. B – The Requirements for Issue Estoppel are not met [119] Even if the Crown may rely on issue estoppel in this context, the requirements of issue estoppel are not made out.

A party isestopped from raising an issue where: (1) the “same question” has been decided previously; (2) the prior decision was final; and (3) theparties to the prior decision and the second decision are the same: Ibid at para 49; see also Lange, The Doctrine of Res Judicata at 27. [120] The Crown’s position is that the test for the certiorari application is identical to the test for a directed verdict. Combined with asubstantially similar evidentiary record, the Crown argues that the Accused is attempting to raise the “same question” which was alreadydecided against him previously by Poelman J.

In oral argument, the Crown stressed that it was the certiorari application which cementedits claim to issue estoppel and not simply that similar arguments were made with a similar evidentiary record at the preliminary inquiry.According to the Crown, the Accused ought to have exercised his appeal right per

section 784 of the Criminal Code to challengePoelman J’s decision. [121] The flaw in the Crown’s argument is that the question on an application to quash a committal is not the issue as in a directedverdict application. Certiorari is an extraordinary remedy that is only available in narrow circumstances: R v Awashish, 2018 SCC 45 at paras 2, 11. A judge reviewing committal has a narrow responsibility to determine whether the preliminary inquiry judgeacted within her jurisdiction.

An error as to the sufficiency of the evidence is not reviewable on certiorari except where it results in acommittal to stand trial in the absence of any evidence capable of supporting a conviction: R v Papadopoulos (2005), (ON CA), 196 OAC 335, [2005] OJ No 1121 (QL) at para 10 (Ont CA). The reviewing judge does not, as Poelman J noted, make hisown assessment of whether the evidence justifies committal.

The test on review is whether there was any evidence at all on which thepreliminary inquiry judge could form her opinion that the test for committal had been met: R v Jackson, 2016 ONCA 736 atpara 16; R v Tuske, , [1978] OJ No 3667 (QL) (Ont CA). [122] The question on a directed verdict application is different. The issue before a trial judge on a directed verdict application iswhether a properly instructed jury could reasonably convict based on the evidence: United States of America v Shepard, [1977] 2 SCR1067, .

A trial judge has an important gatekeeper role and a duty to ensure that only those offences for which the Crownhas adduced sufficient evidence are left with the jury. By contrast, a reviewing judge on a certiorari application reviews for jurisdictionalerror. The two roles are fundamentally distinct. The certiorari decision did not involve the “same question” as the directed verdictapplication before me. [123] Further, the requirement that the prior decision was final means that issue estoppel applies only to findings in a prior trial:Mahalingan at para 26.

A preliminary inquiry is, by definition, not a final determination. It is preliminary. A certiorari application witha limited scope of review of the committal decision is not final either because it is based on the preliminary decision. [124] For example, in Duhamel v The Queen, Duhamel was convicted at trial after the trial judge precluded him from contesting theadmissibility of his confession because the preliminary inquiry judge admitted it previously. Duhamel was estopped from raising theissue.

Lamer J (as he then was) affirmed the Court of Appeal of Alberta’s decision which overturned the trial judge and ordered a newtrial. Lamer J held that issue estoppel does not apply to admissibility rulings made in confession voir dires at preliminary inquiriesbecause there is no general appeal from a committal decision and the scope of review is limited: Duhamel v The Queen, [1984] 2 SCR555, .

[125] The committal and certiorari decisions were not final determinations of the issue in these proceedings. [126] The Crown cited R v Logan (1981), (MB CA), 14 Man R (2d) 139, 1981 CarswellMan 209 (WL Can) (ManCA), R v Gustavson, 2000 BCCA 649 , 148 BCAC 310, and R v Mennes, 1990 CarswellBC 1624 (WL Can) (BC CA) insupport of its res judicata argument. However, none of these cases are factually similar to the application before me. While they dodiscuss res judicata, they do not refer explicitly to issue estoppel, a distinct specie of res judicata.

Accordingly, these cases are unhelpfulin deciding this matter. [127] Res judicata aside, as the trial judge, I also have case management powers to dismiss an application that has no reasonableprospect of success: R v Cody, 2017 SCC 31 at para 38, [2017] 1 SCR 659. However, for the reasons below, I find that theAccused’s directed verdict application has a reasonable prospect of success and I therefore decline to dismiss it on those grounds.

V – Directed Verdict on First Degree Murder A – Directed Verdicts and Circumstantial Evidence [128] The test on a directed verdict application is whether a properly instructed jury could reasonably convict based on the evidence:Shepard. [129] The Crown’s evidence of planning and deliberation is entirely circumstantial. Where the evidence is circumstantial, thequestion is whether the Crown’s desired inference may reasonably be inferred from the circumstantial evidence: R v Arcuri, 2001 SCC54 at para 21, [2001] 2 SCR 828.

I must engage in a limited weighing of the Crown’s evidence to assess whether it isreasonably capable of supporting an inference of planning and deliberation: Arcuri at para 23. [130] However, this weighing is limited. I am not to decide the ultimate issue of guilt, draw inferences, or assess credibility: Ibid atpara 23. I also cannot direct a verdict of not guilty simply because the Crown’s evidence is weak: Ibid at para 33. I am only to considerinferences that favour the Crown where more than one inference can reasonably be drawn from the evidence: R v Sazant, 2004 SCC 77 at para 18, [2004] 3 SCR 365.

In other words, the rule in Hodge’s Case (1838), 168 ER 1136, 1838 CanLII 1 (FOREP) doesnot apply on a directed verdict application. In any event, Hodge’s Case does not apply to the issue of planning and deliberation for firstdegree murder: R v Turningrobe, 2007 ABCA 236 at para 13, 409 AR 334. [131] A properly instructed jury acting reasonably will only convict if the Crown’s circumstantial evidence is sufficient to establishguilt beyond a reasonable doubt: R v Charemski, (SCC), [1998] 1 SCR 679 at paras 20, 33, 35, , perMcLachlin J (dissenting).

While McLachlin J wrote in dissent in Charesmki, as she later explained in the Supreme Court’s unanimousdecision in Arcuri, her dissent and the majority’s reasons in Charemski were agreed as to the proper approach to the Shepard test; theysimply disagreed on the application of the test to the facts of Charmeski: see Arcuri at paras 27-28. Therefore, the Crown’s evidencemust reasonably support an inference of planning and deliberation beyond a reasonable doubt. [132] This principle was tacitly affirmed in R v Hay. Hay was found guilty of murder and attempted murder. Identity was an issue attrial.

The Crown’s main evidence implicating Hay was an eye witness who was not asked to identify Hay in court and provided onlyequivocal evidence as to whether Hay was the shooter: R v Hay, 2013 SCC 61 at paras 15-23, [2013] 3 SCR. 694. The issue onappeal to the Supreme Court was whether the trial judge erred in instructing the jury it could convict Hay based on the eye witnessevidence alone: Hay at para 38. [133] The Court held that it would have been an error to instruct the jury that it could convict based solely on the equivocal evidenceof the eyewitness: Ibid at para 45.

However, the trial judge’s charge did not commit this error: Ibid at para 55. The Court further statedthat a trial judge must direct an acquittal where the Crown’s case consists solely of eyewitness testimony that would necessarily leave areasonable doubt in the mind of a reasonable juror: Ibid at para 41. [134] To conclude, the issue before me is whether the Crown’s circumstantial evidence supports a reasonable inference of planningand deliberation beyond a reasonable doubt. This does not include an assessment of whether there are other reasonable inferencesinconsistent with guilt.

That task is for the trier of fact. I must direct a verdict of not guilty on first degree murder if there is insufficientevidence upon which a reasonable jury, properly instructed, could find planning and deliberation beyond a reasonable doubt. B – Reasonable Inferences [135] The Crown’s evidence must establish the primary facts that it contends are the basis for an inference of planning anddeliberation. From these primary facts, I must assess whether an inference of planning and deliberation is reasonable.

An inference is adeduction of fact that may logically and reasonably be drawn from another fact or group of facts proven in these proceedings: DavidWatt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2018) at 12.01. [136] Speculation and conjecture cannot be relied on as the basis for a reasonable inference. It is not enough to create a hypotheticalnarrative that includes all of the primary facts. That a possibility or opportunity exists based on the evidence does not mean the inferenceis reasonable.

Nonetheless, an inference can be difficult to draw and still be a reasonable inference: R v Munoz (2006), (ON SC), 86 OR (3d) 134, 2006 CarswellOnt 673 (WL Can) at para 31 (Ont SCJ). C - Planning and Deliberation [137] The Crown’s theory for first degree murder is that the Accused planned and deliberated before killing the Deceased. Planningand deliberation are distinct elements. Both must be proven beyond a reasonable doubt to sustain a first degree murder conviction:

Criminal Code, s 231(2). [138] A plan is a calculated scheme or design that has been carefully thought out, the nature and consequences of which have beenconsidered and weighed. The plan can be simple and uncomplicated: R v Widdifield (1961), 6 Crim LQ 152 at p 153 (Ont SC), cited in Rv Nygaard, (SCC), [1989] 2 SCR 1074, [1990] 1 WWR 1. [139] Deliberate means “considered” and not “impulsive”. A deliberate decision is slow and cautious. The Accused must take time toweigh the advantages and disadvantages of his plan: Widdifield.

The Accused must have carefully thought out the act, rather thanproceeding hastily, rashly, or impulsively: Turningrobe at para 12. Deliberation does not require a lengthy period of time: Turningrobeat para 12. [140] Time is a factor insofar as it relates to the time involved in developing the plan, not the time between the development andexecution of the plan, because a carefully thought out plan can be immediately implemented: Widdifield.

That said, the planning anddeliberation must precede the commencement of the conduct that causes death: R v Ruptash, 1982 ABCA 165 , 36 AR 346; R vFatima, (ON SC), [2006] OJ No 3633 (QL) at para 65, 42 CR (6th) 239 (Ont SCJ). [141] Further, evidence of post-offence conduct may be probative of planning and deliberation: Fatima at paras 65-67. [142] Finally, an opportunity to plan and deliberate is not by itself sufficient to warrant a reasonable inference that the Accused in factdid plan and deliberate: R v Quesnel, (MB CA), [1991] MJ No 64 (QL) at para 17, 4 CR (4th) 118 (Man CA).

D – The Crown’s Evidence Does Not Support a Reasonable Inference of Planning orDeliberation beyond a Reasonable Doubt [143] The Crown argues that the whole of the evidence reasonably supports an inference of planning and deliberation. Between thetime the Accused was punched and when he commenced shooting, he could have conceived of a plan to enter 402B, find his gun, load orcheck if it was loaded, open the door, and kill the Deceased. The Accused could have formed a simple plan, implemented immediatelyafter conception.

The Accused had adequate time, perhaps between 1 to 2 minutes, to consider and weigh the consequences of his courseof action. This, the Crown argues, is reasonable to infer based on the evidence. [144] There was no prior animus between the Accused and the Deceased. On the day of the killing, the Accused and the Deceased gotinto an altercation which escalated rapidly. The Deceased punched the Accused.

Within moments, the Deceased was fatally wounded atthe hands of the Accused. [145] Paradise testified that he did not see any type of weapon on the Accused up to the point that the Accused came back outsideafter being punched by the Deceased. For the purpose of this directed verdict application, it is reasonable to infer that the Accused did nothave the gun when he was initially outside 402B and he therefore retrieved it while he was in the residence. [146] There was a knife discovered inside 402B after the shooting.

The Crown argues that the fact the Accused came out with a gunmeans he chose the gun over the knife as a more lethal weapon, suggesting planning and deliberation. However, there is no evidence thatthe Accused knew about the knife. Indeed, there is no evidence whatsoever of what transpired when the Accused was inside 402B. Thishole in the Crown’s evidence creates a major inferential gap between the primary facts supported by the evidence and the Crown’sdesired inference of planning and deliberation. [147] Three witnesses gave evidence on the time between the punch and the shooting.

Alden Paradise testified to a period of 1 minuteand said it could have been less. Victor Hart estimated approximately 2 minutes, but conceded that it could have been 1 minute or evenless than 1 minute. Josh Ritchie testified to approximately 30-45 seconds elapsing between the punch and the shots. [148] The Crown asks for an inference of a 1-2 minute window based on this evidence. That is unreasonable given that the onlywitness who suggested a timeframe of up to 2 minutes was equivocal and the weight of the evidence suggests something in the range of1 minute, or 45 to 75 seconds.

The principle that only inferences favourable to the Crown are to be considered does not mean that I amforced to accept unreasonable inferences marginally supported with equivocal evidence. [149] The Accused told the Deceased, “I’m not going to do anything,” after the Deceased punched the Accused.

The Crown suggeststhat it can be inferred that either the Accused was being deceitful, lulling the Deceased into a false sense of security, or the Accused wasbeing honest and changed his mind. [150] The problem is, if the Accused was being honest but changed his mind, an inference of planning and deliberation does notnaturally or logically flow because it is human experience that a person can change their mind quite unthinkingly. [151] The Crown contends that if the Accused was being deceitful, then he had already formed his plan to retaliate with lethal forceagainst the Deceased immediately after the Accused was punched.

An inference of planning does not flow logically from a time periodwhich would amount to approximately 1-5 seconds. Planning requires calculation and careful consideration of the consequences, even ifit is a simple plan. This is unlikely to occur in 1-5 seconds in the midst of a heated exchanged after immediately receiving a blow to theface. [152] What flows logically from the Accused’s statement and the circumstances surrounding it, viewed in light of human experience,is that he responded reflexively to the conditions of the moment. He was punched unexpectedly.

The door opened up behind him as anavenue of escape. Fight or flight kicked in and he fled. During the brief period of time that he was inside 402B, his simmering resentmentboiled over into rage. Acting in the heat of the moment, he retrieved the pistol and acted out his rage by shooting and killing theDeceased. [153] If the Accused did form a plan, it apparently did not include concealing his identity or making good his escape. The killing was

in broad day light when people in the neighborhood were out and about. The Accused was wearing distinctive clothing, including a blackparka with a fur lined hood, a white baseball hat, light jeans, and white shoes, many details of which the Crown’s witnesses were able torecall in their evidence. He left shell casings at the scene and gunshot residue all over himself. After the shooting, he simply walkeddown the street and started running when he noticed people around. [154] Various witnesses testified to the pattern in which the shots were fired.

Paradise retreated as the Accused appeared, he heard ashot, then another shot, then a brief pause before a third shot, then three consecutive shots were fired in quick succession. Ritchie heard 6or 7 shots spaced consistently apart in time, with perhaps 1 to 2 seconds in between. Hill heard 3 quick loud bangs, then 2 loud bangssoon after. Jessen estimated a 1 second gap in between the first and second shots, almost no pause in between the second and third shots,and a second or a second and a half in between 2 additional shots. Bigras heard 4-6 shots fired within 10 seconds.

Kenny Robertsonheard 4 shots fired quickly without much time in between, and the second set of shots came a second or half a second later. Arp estimated a 3-5 second gap in between the 1st and 2nd set of pops. Janice Robertson estimated 2-3 seconds.

Lyse estimated 5-8 seconds. [155] Some witnesses suggested there were 2 sets of shots and some suggested the shots were fired essentially in 1 long volley. [156] The Crown argues that the gap in between the 2 sets of shots supports a reasonable inference that there was sufficient time forthe Accused to reconsider whether or not he was going to actually kill the Deceased. The problem is that a (very brief) opportunity toreconsider does not logically prove that a reconsideration occurred.

In any event, the Crown’s argument presupposes a pre-existing planthat the Accused was already carrying out, but the issue is whether there is evidence of that pre-existing plan. Therefore, this argumentdoes not go to any of the live issues on this application. [157] The Crown further suggests that the second set of shots supports an inference of planning because each additional step was afurther implementation of the plan.

However, planning and deliberation does not logically flow from the fact that the Accused descendedthe stairs of the porch to stand over the Deceased as he lay on the ground to taunt the Deceased and fire another set of shots. That set ofprimary facts is probative of anger, emotion, impulse, and rash action. [158] Alternatively, the Crown argues that the second set of shots supports an inference that the Accused formulated and deliberatedon a plan to finish off the Deceased after the first set of shots.

However, the planning and deliberation must precede the course of actionthat results in the death of the Deceased and there is no evidence that the second set of shots killed the Deceased. Further, the Accusedwould have had, at most, a few seconds to plan and deliberate before carrying out this supposed plan. An inference of planning anddeliberation does not flow logically from these facts. [159] After the shooting, the Accused was pursued by police officers on foot through a golf course and he was followed by a policehelicopter. During the pursuit, the Accused attempted to hide the gun.

Evidence that the Accused concealed the murder weapon may berelevant to the issue of planning and deliberation: R v Allen, 2009 ABCA 341 at paras 71-73, 464 AR 208. However, this is notone of those cases. Here, the Accused’s attempt to “conceal” the murder weapon was an impulsive move made in the heat of the momentduring a dogged police chase. It does not reveal a design for cold blood murder after careful planning and deliberation. [160] The killing was a rash and impulsive act that fulfilled a fleeting urge felt by the Accused to avenge the indignity of the physicalconfrontation.

That is the context in which I view his post-arrest statements. It would be quite natural to feel regret after taking a life.There is nothing in the substance of his words that suggests the killing was considered, calculated, careful, or cautious. If anything thesestatements suggest that if he had deliberated he would not have killed the Deceased. It was a senseless act of violence that in the momentfulfilled a vindictive, intensely felt urge. [161] If there was a plan, it had to be a simple and uncomplicated one, executed immediately after it was formed.

However, I find thatthe evidence does not support an inference that the Accused carefully thought out the nature and consequences of his actions. This was asenseless killing. It was a wholly disproportionate response to a heated exchange between the Accused and the Deceased. There wasnothing slow and cautious about what the Accused did. [162] In the end, the Crown’s evidence of planning and deliberation amounts to little more than proof that the Accused had theopportunity to plan and deliberate, which is not enough to reasonably support the desired inference.

The Crown’s evidence, assessed as awhole, is not sufficient to support a reasonable inference of planning or deliberation beyond a reasonable doubt. VI – Disposition [163] The Accused is not estopped from applying for a directed verdict on first degree murder, because the Crown cannot rely onissue estoppel in criminal proceedings and the requirements for issue estoppel are not satisfied in these circumstances. [164] The Crown’s evidence does not reasonably support an inference of planning or deliberation beyond a reasonable doubt.

Itherefore direct an acquittal on the first degree murder charge on the indictment, because, based on the whole of the Crown’s evidence, aproperly instructed jury acting reasonably could not convict the Accused of first degree murder. Heard on the 13th, 14th, and 15th day of August, 2018. Dated at the City of Calgary, Alberta this 18th day of December, 2018.

A.D. Macleod J.C.Q.B.A. Appearances: Ken McCaffrey and Heather Morris for the Crown Derek Jugnauth and Janna Watts for the Accused