R v Hermkens, 2021 ABQB 1014

Court of Queen’s Bench of Alberta Citation: R v Hermkens, 2021 ABQB 1014 Date: 20211115 Docket: 191084375Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Christopher Andrew Hermkens Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.31 . By Court Order, any information that could identify the witness A.B. must not be disclosed in the course of these proceedings. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision on a Voir Dire of the Honourable Mr. Justice W.N. Renke _______________________________________________________

Summary Raymond Dumont was shot to death as he sat in a car. Mr. Hermkens has been charged with first degree murder and is alleged to have been the person who shot Mr. Dumont.

The Crown seeks a ruling on the admissibility of a set of recorded telephone conversations between Mr. Hermkens and various other people while Mr. Hermkens was in custody at the Edmonton Remand Centre (the ERC Calls). The sole issue was whether the particular calls or portions of calls were relevant. Other common law admissibility rules (including prejudicial effect and probative value) and exclusion under the Charter were not at issue. The relevance inquiry required consideration of whether calls could support reasonable inferences respecting facts-in-issue in the Crown case.

Some evidence supported two competing inferences, exculpatory and inculpatory. Exclusivity of inference, though, is not a condition for relevance. The relevance inquiry concerns only the reasonable possibility of inference, not a comparison between competing inferences. The Crown facts-in-issue included the identification of the person who shot Mr. Dumont, whether the killing was a contract killing, whether there was a conspiracy to kill Mr. Dumont involving Mr. Hermkens and others, and the credibility of A.B., a key Crown witness. A.B. was a Vetrovec witness.

As regards her testimony, the issue was whether evidence was relevant to confirm or support her testimony. Prior to this voir dire , the ERC Calls had been redacted by the Crown in consultation with Defence Counsel. For the most part, my determinations were that the remaining portions of the ERC Calls were relevant to facts-in-issue in the Crown case. A

summary of my findings is set out as

Schedule A to the decision. In the decision, I discussed relevance, relevance and conversations, and corroboration of Vetrovec witnesses. * * * * * [ 1 ] Mr. Hermkens is on trial for the first degree murder of Raymond Dumont. [ 2 ] There is no dispute that Mr. Dumont was murdered. He died in a hail of bullets as he sat in a car. The central issue concerns the identity of the shooter. The Crown contends that the shooter was Mr. Hermkens. [ 3 ] The Crown seeks a ruling on the admissibility of a set of recorded telephone conversations between Mr. Hermkens and various other people while Mr.

Hermkens was in custody at the Edmonton Remand Centre (the ERC Calls). The Crown had agreed with Defence that some calls were inadmissible and has redacted some of the remaining calls. [ 4 ] The Crown argues that the ERC Calls support inferences relating to facts-in-issue in its case and relating to the credibility of, in particular, a key Crown witness, A.B. [ 5 ] The fundamental objection to admitting the ERC Calls is that the calls are irrelevant. The Defence argues that the objectionable contributions by Mr. Hermkens are not reasonably capable of supporting the inferences urged by the Crown.

The Defence did not object to the ERC on other common law exclusionary rule grounds (including prejudicial effect exceeding probative value) or oppose admissibility under s. 24(2) of the Charter . [ 6 ] I observe that many of the ERC Calls might be considered to be bad character evidence relating to Mr. Hermkens, in that the calls show that he was involved in illegal activities such as drug trafficking and trafficking in firearms. I offer three comments. [ 7 ] First, the evidence of drug trafficking and trafficking in firearms is relevant to the contention that Mr. Hermkens is innocent of the murder charge.

The Defence will argue that the calls show that he was involved in drug and firearms transactions, but that is all. [ 8 ] Second, the evidence relating to Mr. Hermkens’ involvement with drugs and firearms is inextricably intertwined with the circumstances of Mr. Dumont’s death and the allegations made against Mr. Hermkens. [ 9 ] Third, I have not reacted emotionally to the evidence of Mr. Hermkens’ other criminal activities. To repeat an observation made in another case, his conduct has been no better and no worse than the conduct of many others who are caught in the gears of the criminal justice system.

Should I find that any of the ERC calls disclosing evidence of other wrong-doing are admissible I shall self- instruct not to infer from Mr. Hermkens’ general character or disposition that he is likely to have committed the offence charged and I shall not to seek to punish Mr. Hermkens for past misconduct. [ 10 ] As a final preliminary observation, no issues were raised relating to authentication or the best evidence rule under ss. 31.1 and 31.2 of the Canada Evidence Act or about whether the recordings constituted “electronic documents” under s. 31.8. The calls were manifestly made by Mr.

Hermkens and in many cases the party or parties to the call were identified or their identity could be inferred. The calls were recorded by ERC as part of routine procedure and persons participating in the calls were explicitly warned that calls were “subject to recording” at the beginning of each call. [ 11 ] The Crown’s claims of relevance are embedded in the nature of the Crown’s case. I will begin with an overview of the salient aspects of the Crown’s case, including the Crown’s theory of the case, main facts-in-issue, and A.B.’s testimony.

I will then discuss the nature of this voir dire , based on relevance assessments. Finally, I will review the ERC Calls and provide my rulings about whether calls, in whole or in part, are relevant and therefore admissible. Table of Contents I. Crown’s Case . 5 A. Crown’s Theory of the Case . 5 B. Facts-in-Issue . 6 C. A.B. and Corroboration . 6

1. A.B. as a “ Vetrovec ” Witness . 7 2. Features of A.B.’s Testimony . 7 3. Corroborative Evidence . 10 II. Nature of the Assessment 12 A. Relevance . 12 B. Relevance and Conversations . 13 C. Relevance and Corroboration . 14 III. The Calls . 14 A. Admissibility No Longer in Dispute . 15 B.

Admissibility in Dispute . 15 Tab 1, May 21/19 @1310 . 15 Tab 2, May 21/19 @1332 . 16 Tab 3, May 24/19 @2044 . 16 Tab 5, May 28/19 @1838 . 17 Tab 9, June 9/19 @1809 . 17 Tab 12, June 9/19 @1809 . 18 Tab 15, June 12/19 @2003 . 19 Tab 22, July 4/19 @1502 . 19 Tab 24, July 11/19 @2049 . 19 Tab 27, Aug 5/19 @2032 . 20 Tab 29, August 8/19 @2000 . 20 Tab 30, August 9/19 @1309 . 21 Tab 31, August 12/19 @2106 . 22 Tab 49, September 1/19 @1906 . 22 Tab 32, September 4/19 @ 1927 . 23 Tab 33, September 4/19 @ 2124 . 24 Tab 50, October 6/19 @ 1912 . 25 Tab 37, October 9/19 @1300 . 25 Tab 39, October 15/19 @ 1800 . 26 Tab 43, October 24/19 @ 1608 . 26 Tab 44, November 22/19 @1454 . 27 Tab 46, February 14/20 @1849 . 27 C.

Conclusion . 27

Schedule A .. 29 A. Admissibility No Longer in Dispute . 29 B. Admissibility in Dispute . 29 Tab 1, May 21/19 @1310 . 29 Tab 2, May 21/19 @1332 . 29

Tab 3, May 24/19 @2044 . 29 Tab 5, May 28/19 @1838 . 29 Tab 9, June 9/19 @1809 . 29 Tab 12, June 9/19 @1809 . 29 Tab 15, June 12/19 @2003 . 30 Tab 22, July 4/19 @1502 . 30 Tab 24, July 11/19 @2049 . 30 Tab 27, Aug 5/19 @2032 . 30 Tab 29, August 8/19 @2000 . 30 Tab 30, August 9/19 @1309 . 30 Tab 31, August 12/19 @2106 . 30 Tab 49, September 1/19 @1906 . 30 Tab 32, September 4/19 @ 1927 . 30 Tab 33, September 4/19 @ 2124 . 31 Tab 50, October 6/19 @ 1912 . 31 Tab 37, October 9/19 @1300 . 31 Tab 39, October 15/19 @ 1800 . 31 Tab 43, October 24/19 @ 1608 . 31 Tab 44, November 22/19 @1454 . 31 Tab 46, February 14/20 @1849 . 31 I.

Crown’s Case A. Crown’s Theory of the Case [ 12 ] Mr. Dumont’s shooting was situated in the illegal drug trade in Lloydminster. [ 13 ] Mr. Dumont, it appears, was an independent, aggressive, and disputatious figure. He was in and out of jail. [ 14 ] His girlfriend, at all material times, was Chelsey Hart. [ 15 ] While Mr. Dumont was doing time for an assault on Ms. Hart, she slept with Jason Krysta (aka Little

J) and later with Steven Thorne (aka Crazy). She did so because she was angry with Mr. Dumont. She told Mr. Dumont what she did. [ 16 ] Upon release, Mr. Dumont went to Mr. Krysta’s residence and took his car from him. That was the price Mr. Krysta had to pay. [ 17 ] Mr. Dumont told Mr. Thorne that he would beat him. Mr. Dumont also contacted “Fiji,” a drug supplier in Edmonton. He warned Fiji that if he continued to supply drugs to Mr. Thorne, he’d rob Mr. Thorne’s runners. [ 18 ] The Crown contended that in consequence, Mr. Krysta, Mr. Thorne, and Tim Lee (aka Old Man Tim and other aka’

s) determined that Mr. Dumont had to be killed. Mr. Hermkens, who was part of Mr. Lee’s organization, took the contract to kill Mr. Dumont. Mark Moran was enlisted to assist Mr. Hermkens. Mr. Moran had been Mr. Hermkens’ co-accused but I ruled that, in the interests of justice, the trial against him would proceed separately. [ 19 ] On April 27, 2019, at around 7:30 p.m., Mr. Dumont was parked in Ms. Hart’s car. Ms. Hart was in the passenger seat beside him. Mr. Dumont was talking with Mr. Moran, who was in his own vehicle parked beside Mr. Dumont.

A third party approached from behind the Dumont vehicle, opened fire with a long gun, and killed Mr. Dumont. The Crown shall seek to establish on the evidence admitted at trial that Mr. Hermkens was the shooter. B. Facts-in-Issue

[20] The Crown contended that the ERC Calls were (variously) relevant to four main issues: • the identification of the shooter as Mr. Hermkens • the nature of the killing as a contract killing and the terms of the arrangement to kill Mr. Dumont (see s. 231(3) of the CriminalCode) • the existence of a conspiracy to kill Mr. Hermkens (involving Mr. Thorne, Mr. Krysta, Mr. Lee, and Mr. Hermkens) o this issue would be linked to a Crown bid to rely on the “co-conspirator’s” exception to the hearsay rule o relevant to this issue would be background matters, such as evidence that Mr.

Hermkens knew (or was acquainted with) Mr. Thorne,Mr. Krysta, and Mr. Lee, and after-the-fact evidence that tended to confirm the existence and terms of the arrangement • corroboration of the testimony of A.B. [21] Mr. Hermkens’ possession of and access to firearms would be relevant to his identification as the shooter (possession ofmeans). [22] Mr.

Hermkens’ role in the drug trade would be relevant to his knowledge of the alleged co-conspirators and to the reason forhis involvement in the alleged conspiracy (i.e., his familiarity with others who were involved is an explanation for his taking on the roleof shooter – he was not a stranger to the parties who needed to deal with Mr. Dumont). [23] Proof of a conspiracy will require proof of the following: “[A] conspiracy is ‘an agreement of two or more persons to do anunlawful act’.

The elements of the offence are: (1) an intention to agree; (2) completion of the agreement; (3) a common (unlawful)design; and (4) an intention to put the common (unlawful) design into effect: United States of America v Dynar, (SCC),[1997] 2 SCR 462 at para 86:” R v Nguyen, 2020 ABCA 345 at para 11; affg R v Nguyen, 2018 ABQB 366, Hughes J, as she then was,at paras 16, 18. [24] Some elaboration of the need for corroboration of A.B.’s testimony is warranted. C. A.B. and Corroboration [25] A.B. was Mr.

Hermkens’ former girlfriend, who was present with him at some material times, and who carried out tasks forhim at other material times. 1. A.B. as a “Vetrovec” Witness [26] There was no dispute that A.B. was a “Vetrovec” witness. She was a drug user. During the time she was with Mr. Hermkens,she was using methamphetamine “pretty heavily.” She moved to Calgary to deal drugs. She claims to have helped to prepare theweapons the Crown asserts were used in Mr. Dumont’s murder.

She helped to dispose of evidence. (Setting aside what she did or did notknow or was wilfully blind to, she could be regarded as an “accomplice.”) During her testimony, she was not forthcoming about Mr.Hermkens’ occupation as a drug dealer, and did not disclose in her direct testimony that Mr. Hermkens supplied her withmethamphetamine at no cost (she had confirmed that she was using methamphetamine but she did “not know” where the drugs werecoming from).

A.B. will occupy a central position in the determination of guilt: Vetrovec v The Queen, (SCC), [1982] 1SCR 811; R v Brooks, 2000 SCC 11 , [2000] 1 SCR 237, Bastarache J at para 3; R v Khela, 2009 SCC 4, Fish J at para 35; R vLawrence, 2020 ABCA 268 at paras 25-26. [27] When it comes time for me, as the trier of fact, to consider A.B.’s testimony along with all the other evidence in the case, Imust remind myself of the factors that might impair her credibility. “Vetrovec” cautions are not merely for juries:” R v W(N), 2017NSPC 39, Derrick PCJ, as she then was, at para 99.

The “clear and sharp warning” must form part of my self-instruction: I shall have toconsider whether her evidence, considered with all the other evidence in the case, overcomes its “suspicious roots:” R v Youvarajah,2013 SCC 41, Karakatsanis J at para 63. 2. Features of A.B.’s Testimony [28] The main features of A.B.’s testimony, concerning her interactions with Mr. Hermkens commencing in mid- to late March,2019 were as follows: • by this time, she and Mr. Hermkens had broken up. • by mid-April, A.B. became Mr.

Hermkens’ “side woman.” She came to his basement suite in Edmonton every day. • she became best friends with Mr. Hermkens’ sister Heather (aka Lolly). • she knew Mr. Hermkens’ mother and recalled that she was just starting to see someone, Darren, but she never met him. • Mr. Hermkens told A.B. that he wanted to buy his new girlfriend a $95,000 luxury SUV. • she overheard plans by Mr. Hermkens to murder someone o she claimed that the person he was talking to was Mr. Thorne, which she knew because

▪ Mr. Hermkens had the phone on speaker ▪ when Mr. Thorne called, it would show on caller ID ▪ when a call came in, Mr. Hermkens would ask if it was Mr. Thorne (I confirm that there are some issues about whether A.B. could have heard what she claimed to have heard, arising from cross- examination) o A.B. had not met Mr. Thorne although she had heard of him o the person to be killed was not identified o what she heard were words like “we’ll get him” – there was no explicit reference to murder o she did not hear the reason why the killing would happen o communications with Mr.

Thorne were on the telephone, in text messages, and sometimes in person (although she wasn’t at any in- person meetings) o there were many calls in late March and April, nearly every day o she heard a dollar value for the murder - $100,000 o she heard discussions about items involved in the murder, including ▪ “tool,” which Mr. Hermkens used to denote a gun ▪ “teeth,” which Mr.

Hermkens used to denote ammunition ▪ “plug,” a person higher up in the drug distribution organization who supplies drugs. • she and Heather picked up envelopes containing cash at Blackfoot near Lloydminster ($5,000 the first time, $10,000 the second time). • she identified Mr. Hermkens’ plug as Tim Lee, Old Man Tim (OMT), also described by Mr. Hermkens as “big homie.” • Mr.

Hermkens had her sand down (with sandpaper) and spray-paint two weapons, a handgun and a rifle o she spray-painted the weapons black o she first saw the guns a couple of weeks to a week before the murder occurred o she did not know how the guns got there – the guns were there when she went to Mr. Hermkens’ place o the handgun was the “type of gun a cop would have” o she was pretty sure that Mr. Hermkens called the rifle an AK 47 – it was an assault rifle o she took a photo of Mr.

Hermkens holding the handgun that was an exhibit in the trial. • she thought those items came from Tim, because “That’s who he was always asking for tools.” • Mr. Hermkens took the weapons with him when he left for some days and she never saw them again – he left the day after the weapons were painted; he told her he was going to Lloydminster. • when Mr. Hermkens returned, he said “I got him, his woman, and I’m pretty sure I got the kid too.” • when Mr. Hermkens returned, he had Heather and A.B. go to a storage unit in Lloydminster, get some bags of items, then wash them down. The items were initially kept at Mr.

Hermkens’ place. A.B. took the items to her place after Mr. Hermkens was arrested because she was scared the items would be found by the police. The items would be evidence of murder. A.B. eventually disposed of the items in a garbage bin. The items included personal belongings, including registration for an Avalanche and “mail to the people who owned the vehicle.” • the day after Heather and A.B. had returned from the Lloydminster, Mr.

Hermkens sent them to Lloydminster again. o they pulled off the highway by Blackfoot o an individual who drove up in a green car handed Heather an envelope containing cash ($5,000) o they went to the storage locker again – they emptied the locker and wiped it down to remove fingerprints o they took the items from the locker back to Edmonton, wiped the items down, and threw the items away. • a day or two later, Heather and A.B. returned to the Blackfoot pull out and collected another envelope from the individual in the green car ($10,000 cash).

• a few days later Mr. Hermkens went to Calgary. • she learned in early May, 2019 that Mr. Hermkens had been arrested in Calgary. She was contacted by Aaron Moore (aka Ammo). • she went with Ammo to Calgary. Ammo “tried to help me out.” More specifically, she was to sell drugs supplied by Ammo. • Mr. Hermkens wanted his cat (Socks) back. A.B. dropped him off with Janet. • Mr. Hermkens used Wickr, an encrypted application, to communicate with others. • Mr. Hermkens had a storage locker in Edmonton. Ammo had the key and code. A.B. did not see the locker until June.

A.B. did notobserve any firearms in the locker. • A.B. had met Rick Thorne, Steve Thorne’s father. He came down to Edmonton a week or so before the murder. He was“boosting” for Mr. Hermkens, stealing items. A.B. was pretty sure he went back to Lloydminster with Mr. Hermkens. • A.B. knew Coree Shortt, from when A.B. lived in Lloydminster. She said that Mr. Hermkens told her to tell Coree to recant herstatement to police. [29] Thus, A.B.’s testimony was relevant to • the formation of the contract to kill Mr. Dumont and the existence of the broader conspiracy and conspirators, involving Mr. Leeand Mr. Thorne. • Mr.

Hermkens having the means to commit the murder, being the two firearms, the rifle in particular. • Mr. Hermkens’ motive to participate in the killing of Mr. Dumont (to buy the luxury SUV for his new girlfriend). • Mr. Hermkens’ admission that he killed Mr. Dumont (by inference). • after-the-fact conduct covering up the offence (Heather and A.B. to destroying evidence, A.B. directed to have Corree Shortrecant). • part-payment of Mr. Hermkens, picked up by Heather and A.B. at Blackfoot. • Mr. Hermkens’ use of Wickr to communicate respecting the conspiracy to kill Mr. Dumont. • Mr. Hermkens’ link to Rick Thorne. 3.

Corroborative Evidence [30] Because A.B. is a “tainted witness,” “[w]e therefore want some other piece of evidence which tends to convince us that [she]is telling the truth:” Vetrovec at 826; R v Gagnon (2000), (ON CA), 147 CCC (3d) 193 (ON CA) at paras 11, 15.

When the time comes to assess the evidence in this case, and when I consider whether I should believe all, some, or none ofher evidence, I should take into account whether her testimony is supported by other evidence, independent evidence that confirms orcorroborates her testimony: Khela at para 39; Lawrence at para 28. [31] Corroboration is assessed at the end of the trial, on the basis of all the evidence. Corroborating evidence should not beevaluated piece-by-piece: R v MacIsaac, 2017 ONCA 172, Trotter JA at para 41.

Further, “although a piece of evidence viewed inisolation may not constitute corroboration, a number of pieces of evidence viewed collectively may constitute corroboration:” Gagnon atpara 48. [32] Corroborating evidence • need not directly implicate Mr.

Hermkens in the murder (although it may) (Khela at para 40; Gagnon at para 48; R v McFarlane,2012 ONCA 355 at para 12; R v Mohamad, 2018 ONCA 966, Watt JA at para 153) • must be “capable of restoring ... faith in the relevant aspects” of A.B.’s account – it must be “capable of assuring the trier of factthat it is safe to rely upon the word of a disreputable witness” (MacIsaac at paras 38, 44; see McFarlane at para 13 (increase confidence“in that part” of the tainted witness’s testimony)); it is “independent evidence that makes it probable the [tainted witness’s] evidence istrue” (Gagnon at para 48; see Mohamad at para 153) • need not be “more consistent with the truth than the falsity of the [tainted witness’s] evidence” (Gagnon at para 48) • must not be “neutral” in the sense of being equally consistent with the truth or falsity of A.B.’s testimony – hence, evidence that is“susceptible of competing

interpretations” could only be neutral and not corroborative (MacIsaac at paras 38, 42; Mohamad at para154). [33] With respect to the link between supporting evidence and the “relevant aspects” of a tainted witness’s testimony, Justice Fishwrote as follows at paras 42 and 43 of Khela: [42] However, when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to thejury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence. Again in Vetrovec,Dickson J. thus noted, with respect to evidence capable of being confirmatory:

All of this incriminating evidence, when considered together, strongly strengthens the belief that Langvand was telling the truthregarding the participation of Vetrovec and Gaja. It rebuts any suggestion that he is falsely implicating innocent individuals. [Emphasisadded; p. 833.] [43] This passage was cited with approval in this Court’s unanimous judgment in Kehler, where the Court concluded thatconfirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’ account (para. 15).

As a matter oflogic, where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that theimpugned witness is telling the truth in that regard before convicting on the strength of that witness’s testimony. [34] With respect to the neutrality point, the Ontario Court of Appeal wrote at para 14 of McFarlane that “If a jury decides thatevidence left with it as potentially confirmatory of a Vetrovec witness is equally consistent with the truth or the falsity of the Vetrovecevidence, then that evidence, as a matter of logic, cannot confirm the credibility of the Vetrovec witness.” [35] At para 16 of Gagnon, the Court of Appeal quoted Justice Martin’s decision in R v McNamara (No. 1) (1981), (ON CA), 56 CCC (2d) 193 (ON CA) at 277: A fact that is capable of being corroborative does not lose that quality because it is admitted, or admitted and explained.

The Court in R.v. Boyce ... held that an explanation offered by the accused to account for an admitted fact capable of constituting corroboration, does notdeprive the admitted fact of the character of being capable of constituting corroboration. The jury may reject the explanation, and it isfor the jury to decide whether to accept the fact as corroboration. and commented as follows: Clearly then, potentially confirmatory evidence does not lose that quality simply because the accused person has provided a non-inculpatory explanation of the evidence.

If the jury rejects that explanation, they may then decide to accept the evidence asconfirmatory. See also para 48 (“Evidence given by an accomplice that is contradicted or explained by an accused may still constitute corroborativeevidence; it is for the jury to decide whether the evidence, in fact, is corroborative”). [36] My approach to corroboration must be conditioned by the nature of the assessment of the potentially corroborative evidence. Iwill turn to the nature of that assessment next. II. Nature of the Assessment A.

Relevance [37] At this point, I am considering the admissibility of proffered evidence, challenged on the basis of lack of relevance. [38] The overall issue, then, is whether an inference may be drawn, rationally or reasonably, from the evidence proffered by theCrown to a fact-in-issue. The issue concerns the rational possibility of an inference, not the degree of probative value of inference. Putanother way, the issue concerns the possibility of inference not the probability of inference.

In Cloutier v The Queen, (SCC), [1979] 2 SCR 709, Pratte J wrote as follows at 731: “For one fact to be relevant to another, there must be a connection or nexusbetween the two which makes it possible to infer the existence of one from the existence of the other.

One fact is not relevant to anotherif it does not have real probative value with respect to the latter (Cross, On Evidence, 4th ed., at p. 16).” In In R v Corbett, (SCC), [1988] 1 SCR 670 at 715, Justice LaForest referred to R v Morris, (SCC), [1983] 2 S.C.R. 190 and wrote that It should be noted that this passage [from R v Morris] followed a general discussion of the concept of relevance in which the courtaffirmed that no minimum probative value is required for evidence to be deemed relevant. The court made it clear that relevance does notinvolve considerations of sufficiency of probative value ....

A cardinal principle of our law of evidence, then, is that any matter that hasany tendency, as a matter of logic and human experience, to prove a fact in issue, is admissible in evidence, subject, of course, to theoverriding judicial discretion to exclude such matter for the practical and policy reasons already identified.

See also R v Ferris, 1994 ABCA 20, affd (SCC), [1994] 3 SCR 756, Conrad JA at paras 12-14; R v Schneider, 2021BCCA 41, Justice DeWitt-Van Oosten, dissenting in part at paras 70-71 [39] Three additional useful descriptions of relevance are provided by Justice Doherty in R v Watson (1996), (ON CA), 108 CCC (3d) 310 (ON CA) at para 33 (CarswellOnt): Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existenceof “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”.

If itdoes then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue inthe litigation then “Fact A” is relevant and prima facie admissible. by Justice Watt in R v Candir, 2009 ONCA 915 at paras 47-48: [47] Relevance is not an inherent characteristic of an item of evidence. Relevance exists as a relation between an item of evidence anda proposition of fact that the party adducing the evidence seeks to prove or disprove by the introduction of the evidence ....

[48] The threshold for relevance is not high. To determine whether an item of evidence is relevant, a judge must decide whether, as amatter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a material fact moreprobable than it would be otherwise .... The exclusivity or cogency of the inferences that may be drawn from the item of evidence haveno place in the inquiry into relevance: see R. v. Underwood (2002), 2002 ABCA 310 , 170 C.C.C. (3d) 500 (Alta.

C.A.), at para.25. and by Justice Martin (dissenting in part) in R v Calnen, 2019 SCC 6 at para 108: [108] Relevance involves an inquiry into the logical relationship between the proposed evidence and the fact that it is tendered toestablish. The threshold is not high and evidence is relevant if it has “some tendency as a matter of logic and human experience to makethe proposition for which it is advanced more likely than that proposition would be in the absence of that evidence”: R. v. White, 2011SCC 13, [2011] 1 S.C.R. 433, at para. 36, quoting D. M. Paciocco and L.

Stuesser, The Law of Evidence (5th ed. 2008), at p. 31. In otherwords, the question is whether a piece of evidence makes a fact more or less likely to be true. Relevance does not require a “minimumprobative value”: R. v. Arp, (SCC), [1998] 3 S.C.R. 339, at para. 38 .... [40] The last point made by Justice Watt respecting non-exclusivity of inference is important. A particular piece of profferedevidence may be relevant to a fact-in-issue, even though other inferences may be drawn from that evidence.

A determination of relevancedoes not involve a comparison between different inferences that may be drawn from the proffered evidence. A finding of relevance is nota finding that an inference is the most compelling inference to be drawn from the proffered evidence. [41] Relevance is a condition of admissibility.

In contrast, whether a particular inference is be drawn and whether a particularinference is accepted and other inferences are rejected are for the trier of fact to determine at the end of the trial, on the basis of all theevidence. [42] Proffered evidence is irrelevant only if the evidence does not make a fact in issue more (or less) likely. Irrelevant evidence hasno marginal probative value in relation to the fact-in-issue.

For example, proffered evidence may be irrelevant because the evidence hasnothing to do with the facts of the case: see R v Wuschenny, 2018 ONSC 6765, Pomerance J at para 77 (forensic evidence on a t-shirtnot shown to be connected with the alleged offence). It may be irrelevant because the evidence cannot make a fact-in-issue moreprobable than a competing fact-in-issue: see R v Arcangioli, (SCC), [1994] 1 SCR 129, Major J at 145. B.

Relevance and Conversations [43] In this voir dire, I am considering recorded conversations. [44] For a relevance determination to be made respecting words uttered by an accused, context must be established so that themeaning of the words may be inferred: Ferris at para 17. The question is whether, given the evidence of context or setting, the meaningof the words could be determined.

The trial judge must determine “whether or not the evidence is sufficient for a jury to conclude themeaning of the words,” for “[w]ithout meaning being ascertainable the words are not relevant to any fact in issue and they have noprobative value:” Ferris at para 17; see also paras 26 and 31; Schneider, Goepel JA at para 181, DeWitt-Van Oosten JA at para 69(capable of being an admission). [45] In Ferris at para 21, Justice Conrad relied on Wigmore’s discussion of the “principle of completeness.” What was said, thecommunicative context preceding the words in question, and the context following the words in question must be established.

Wigmorepointed out that meaning cannot be ascertained without consideration of the “utterance as a whole” assessed in the “successive elementsand their mutual relations:” Ferris at para 19. Wigmore again in Ferris at para 20: “We must compare the whole.” See Schneider,Goepel JA at para 183-185. [46] It may be that a particular conversation may have more than one

interpretation. The conversation may support more than oneinference. So long as the Crown can show that a reasonably available

interpretation of the conversation supports an inference to a fact-in-issue, the evidence is relevant. If the evidence of the conversation is admitted, the task of the trier of fact is to decide the meaning of thewords: Schneider, Goepel JA at para 182. [47] The finding of relevance does not mean that I am rejecting the contrary

interpretation or the contrary inference urged byDefence. It does not mean that I have rejected the Defence reading and use of the evidence. I am not expressing any sort of preferencebetween the Crown and Defence

interpretations of the evidence and inferences mounted on those

interpretations. These are not mattersfor a relevance inquiry but, as indicated, are matters for me to decide as trier of fact, once all the evidence is in, and on the basis of all theevidence. C. Relevance and Corroboration [48] These considerations apply respecting my determinations of whether particular calls are relevant to the corroboration ofA.B.’s testimony, that is, whether the calls may or could rationally support her testimony, whether it is rationally possible to infer fromthe calls that A.B.’s testimony is supported or confirmed.

By finding a call relevant to corroborate A.B.’s testimony, I am finding onlythat it is rationally possible that, at the end of the trial, on the basis of all the evidence, this piece of evidence by itself or with otherpieces of evidence, will be accepted as supporting A.B.’s testimony. At the present stage, I am not finding that particular calls docorroborate her testimony, still less that particular calls have rendered her testimony indisputably believable. The relevance-to-corroboration finding leaves open competing

interpretations of the particular calls and argument as to why those calls should not, givenall the evidence, to taken to support A.B.’s testimony. [49] Absent a finding that a particular call could not support A.B.’s credibility, the issue of whether or not a particular call doessupport her credibility is for me as trier of fact to decide, in light of all the evidence.

III. The Calls [ 50 ] The ERC Call transcripts are collected in an exhibit, separated by tabs. Because the Crown agreed that some entire calls were not admissible, the series of tabs omits some numbers. Tabs 49 and 50 are out of numerical order but are ordered by call date and time. Specific call citations will be by page and line numbers. [ 51 ] The recordings captured the contributions of both Mr. Hermkens and the parties he was speaking with. The evidence was not of “overheard, one-sided utterances:” Schneider , Goepel JA at para 162 . [ 52 ] The recordings were played in court.

The recordings were intelligible and the transcripts, for the most part, were accurate. There was no issue of “failing to recall” actual words or the substance of words: Schneider , Goepel JA at para 177 . During submissions, some minor corrections were made to the transcripts. In one instance, the transcription issue concerned the rendering into a word of an audible and acknowledged phoneme (“Thule” vs. “toolie”). [ 53 ] There was no “fragment” issue: Schneider , Goepel JA at para 177 ; R v Alcantara , 2015 ABCA 259 , leave to appeal ref’d [2016] SCCA No 14 at para 142.

The recordings were of entire conversations, some of which came to me with irrelevant portions redacted. Typically, elements of conversation preceding and following the language in question were present and provided context. [ 54 ] Further, 29 recordings were considered. The context of the recordings was established, in part, by this entire set of communications. The conversations were fitted into a “large mosaic:” Alcantara at para 148 . The Crown had emphasized, for example, that the call at tab 6 must be understood in light of the calls at tabs 46, 47, and 48.

The recordings, then, were embedded in macro- context, the overall non-controversial events of Mr. Dumont’s murder, meso-context, the recorded communications as a whole, and micro-context, the words actually used by Mr. Hermkens and his words and the words of others that preceded and followed his words. On “macro-context” and “micro-context,” see Schneider , Goepel JA at paras 204-205 . [ 55 ] Finally, if calls or portions of calls are admitted, the evidence may be used to support inferences urged by the Crown or the Defence. It is evidence “at large.” A.

Admissibility No Longer in Dispute [ 56 ] The Defence conceded the admissibility of the following calls on the Defence

summary sheet provided for the voir dire : • tab 6, May 29/19 @1404 (p. 10.236-14 redacted) • tab 8, May 30/19 @1845 • tab 16, June 13/19 @1958 • tab 18, June 21/19 @2112 • tab 20, June 25/19 @2157. [ 57 ] In the course of submissions, the Defence conceded the admissibility of the following two calls, on the grounds that it was clear that the conversations concerned firearms: • tab 47, February 18/20 @ 1547 • tab 48, February 18/20 @ 2205. B. Admissibility in Dispute [ 58 ] As mentioned earlier, many of these calls have already been redacted by the Crown. The disputes concern the residual elements of the calls. [ 59 ] Often the Defence asserted alternative

interpretations and inferences from the words of the conversations. As indicated earlier, relevance does not require exclusivity of

interpretation or inference. Tab 1, May 21/19 @1310 [ 60 ] Pages 11-23 of this call were redacted. [ 61 ] Pages 2-4 are irrelevant, except to show who Mr. Hermkens was talking to. This was not a party who figured in any transactions at issue (I infer that the other person was “Shiloh” – see 7.180). This person, though, was sending messages on behalf of Mr. Hermkens to others. [ 62 ] In the following pages, Mr. Hermkens does refer to his “envelope” (that didn’t arrive). The passage from 5.109-119 may provide some corroboration to A.B.’s account of having been involved in picking up envelopes for Mr. Herkmens.

The “envelope” term, by implication, concerns payment. At 10.271 there is also reference to passing money to “my sister and my girl.” The Crown asserts that the payment was for the killing, the Defence asserts that the payment was related only to drug transactions. As indicated, that the conflict of

interpretations does not render the passage irrelevant.

[ 63 ] At 5.128-6.141, an available

interpretation is that A.B. is referred to, and Mr. Hermkens confirms that she knows “my boy” and “my big homie.” From other calls, the latter may be interpreted as a reference to Mr. Lee. At 7.164, reference is made to Mr. Hermkens’ “plug” (his supplier and a person to whom Mr. Hermkens answers) and Mr. Hermkens’ role or status in the drug trade. He is an earner. These references go to the conspiracy, Mr. Hermkens’ participation in the conspiracy, and to corroboration of A.B.’s testimony. [ 64 ] At 7.189 there’s reference to Ammo, the person Mr. Hermkens was arrested with in Calgary.

Again, there’s reference to “putting money in these accounts for me.” And again, the purpose of these payments may be disputed, but could be relevant to payment for the killing. Insofar as familiarity with Ammo is confirmed, there is some corroboration of A.B.’s testimony. [ 65 ] On pp. 8 and 9, Mr. Hermkens appears to be referring to an associate of Ammo’s who ratted out Mr. Hermkens. Because he is in custody, Mr. Hermkens is not making any money. These comments could be an expression of Mr.

Hermkens’ concern at having been wrongfully accused or dismay that his actual involvement in the killing was disclosed by “Ammo’s boy.” Mr. Hermkens’ drug trade activities, part of the overall relational context surrounding Mr. Dumont’s death, are also implicated. [ 66 ] I would retain p. 2 to set context and delete pp. 3 and 4 as irrelevant. The remainder of the disputed passages are relevant. Tab 2, May 21/19 @1332 [ 67 ] Pages 2-12.317 were redacted, as were pp. 14.370-18. [ 68 ] The Defence conceded the relevance of 12.318-333. [ 69 ] This admitted passage concerns money owed by Jason Krysta (Little

J) and Steve Thorne (Crazy) to Mr. Hermkens. Again, this could be for drug purchases or could be connected with the killing of Mr. Dumont and to role of Mr. Krysta and Mr. Thorne in that killing. The passage demonstrates a relationship between all three individuals. The party talked to is Aaron Moore (aka Ammo). [ 70 ] At 12.337-338, there’s reference to Mr. Hermkens’ envelope and to Little J owing $5,000. At 13.362-14.369, Mr. Hermkens confirms to Shiloh that the call to Ammo was a “big call” because he was going to see his “big homie,” or Mr. Lee, and a message needed to be passed to him.

These passages go to linkages between Mr. Hermkens, Mr. Thorne, Mr. Krysta, and Mr. Lee, relating to payments. [ 71 ] The disputed passages as well as the admitted passage are relevant. Tab 3, May 24/19 @2044 [ 72 ] Pages 2-7.167 were redacted, as were pp. 8.196-11. [ 73 ] The Defence conceded that 8.183-195 were admissible. [ 74 ] The disputed passage (7.168-8.182) refers to links between big homie (Mr. Lee) and Crazy (Mr. Thorne) – big homie is to tell Crazy. Again, this goes to the relationships between the parties to the alleged conspiracy.

The conceded passage may be interpreted as concerning the suppression of evidence. I recognize that an alternative Defence

interpretation is available, with Mr. Hermkens being concerned with false evidence being given against him. [ 75 ] The disputed passage as well as the conceded passage are relevant. Tab 5, May 28/19 @1838 [ 76 ] Pages 7.177-8.213, 11.311-15 were redacted. [ 77 ] The initial conversation is between Mr. Hermkens and his mother. Mr. Hermkens refers to his cat and his belongings in A.B.’s possession. These comments may provide some corroboration for A.B.’s account, which did include her having and returning Mr. Hermkens’ cat and things. [ 78 ] At 3.63-4.69, Mr.

Hermkens then referred to his brother as a rat and accused him of having provided Mr. Hermkens’ phone number to the police, allowing the police to locate and arrest him (see also 6.154-158, 9.248). Mr. Hermkens then said that “if he has anything to fucking say ... he can catch one too. I’ll fucking send someone to his home and punch him out too man.” The Crown interprets the “catch one too” words as catching a bullet – the “too” suggests catching a bullet, as Mr. Dumont did. The Crown, then, views that comment as being an admission. The comment may also go to the suppression of evidence. Later, I note, Mr.

Hermkens also said his brother had better not see him because “I’m going to light his ass the fuck up man” (7.163-164), and later again Mr. Hermkens says “If I get out ... I’m fucking knocking him out” (10.272-273). [ 79 ] At 4.95, the phone was passed to Darren. Darren’s involvement may provide some corroboration of A.B.’s account, since she testified that Mr. Hermkens’ mother’s boyfriend at the time was Darren. Mr. Hermkens talked to Darren about downloading the Wickr app for messaging. He referred to talking to big homie through Wickr. He talks about A.B. having the password and knowledge about using Wickr.

He also talks about A.B. having his cat. This information may corroborate A.B.’s account, as she had referred to Mr. Hermkens using Wickr for his communications and to assisting with those communications and, again, her possession of the cat is mentioned. Mr. Hermkens’ link to big homie is confirmed. See also 11.291-311. [ 80 ] The Crown also pointed out that Mr. Hermkens told Darren that he’d only had the phone for five days. The Crown viewed the new phone and the timing of its acquisition as part of Mr. Hermkens’ effort to “cover his tracks” (9.250) .

[ 81 ] The disputed passages are relevant. [ 82 ] Mr. Hermkens did say that he’d been in Calgary “trying to get work and get a job and they’re trying to fucking say I did all this stupid shit” (9.261-10.263) . I acknowledge that this passage may have an exculpatory

interpretation. This passage should certainly be considered along with the other evidence. Tab 9, June 9/19 @1809 [ 83 ] Pages 2 -17.461 were redacted, leaving two disputed pages. [ 84 ] Page 18 begins by confirming Mr. Hermkens’ relationship with Ammo. He then refers to his former girlfriend “L.” Essentially, Mr. Hermkens says she was fine when the money was coming in and he could make payments on her vehicle or buy her a new vehicle, but now that he’s locked up she’s done with him, as if he were a “mid-life crisis” for her. The Crown views this passage as going to Mr.

Hermkens’ personal motive for taking the contract on Mr. Dumont. He wanted the money to spend on L. The reference to the Benz may support A.B.’s account, since she referred to L having a while Mercedes Benz SUV and to Mr. Hermkens driving it. [ 85 ] On p. 19, Mr. Hermkens refers to Steve (who could be interpreted to be Steve Thorne) providing some money to pay down Mr. Hermkens’ debt to L’s mother, again confirming his relationship with Mr. Thorne. [ 86 ] The passage at 19.511-520 is irrelevant. Other than that, pp. 18 and 19 are relevant.

Tab 12, June 9/19 @1809 [ 87 ] Pages 8.195-15.407 and 17-18 were redacted. [ 88 ] The Defence conceded the relevance of p. 16. [ 89 ] The call is initially between Mr. Hermkens and Josh. At p. 3 there is reference to A.B. working with Ammo in Calgary. That may be confirmatory of A.B.’s account. [ 90 ] A.B. is then brought into the call (5.100). Mr. Hermkens confirmed to her that Ammo owed him $10,000. Mr. Hermkens expressed concern that Ammo got released when they were both arrested at the hotel (7.154-156). [ 91 ] Mr. Hermkens then asks “Did you guys take my thing from my spot? That storage unit?” (7.156-157).

The Crown interprets the term “thing” to refer to a gun that Mr. Hermkens had stored at a storage unit. After-the-fact evidence of possession of a gun could support an inference of having a gun at the time of Mr. Dumont’s shooting, that is, of having the means to shoot Mr. Dumont. I recognize that evidence of possession is not the same as evidence of use and that even if “thing” is code for gun, the type of firearm has not been particularized. Nonetheless, at this point, the issue is only relevance in the context of a circumstantial case.

The Crown was not suggesting that this sort of evidence, on its own, in isolation, proves that Mr. Hermkens shot Mr. Dumont. The limitation on the scope of available inferences from the evidence does not make the evidence irrelevant. [ 92 ] A.B. confirmed that she was “brought ... out here,” on the basis of “promising all this shit or whatever.” Since that is self- generated evidence, it may not be corroborative. See Khela at para 39 ; R v McFarlane , 2020 ONCA 548 at para 70 . [ 93 ] A.B., however, went on to mention that she was with Tamara, to which Mr. Hermkens replied “like my boy Steve’s girl?” (8.190).

This evidence confirms links between Mr. Hermkens and Mr. Thorne and between Mr. Thorne and Ammo (as Mr. Hermkens put it, “what the fuck is Ammo doing in the picture?” (8.192)). [ 94 ] A page with conceded relevance, p. 16, with Ammo back on the line, makes reference to firearms. At 16.413, Mr. Hermkens asked “is that thing still at the spot.” Ammo said it is still there. Josh asked if it was a “handy,” to which Mr. Hermkens replied that it’s a “four seven.” That could be interpreted as a reference to an AK 47.

That type of firearm, then, is linked back to the term “thing,” which denoted an object in a storage unit, an object belonging to Mr. Hermkens in a space rented by Mr. Hermkens. That reference may also corroborate A.B.’s description of the long gun. [ 95 ] The disputed passages as well as the conceded passage are relevant. Tab 15, June 12/19 @2003 [ 96 ] The Defence conceded that pp. 7.148-18.181 were relevant. [ 97 ] Mr. Hermkens spoke to Darren. They referred to someone who was in Toronto and to messages sent on Wickr.

There was a suggestion that the person in Toronto was big homie, but I did not see any textual or cross-reference evidence of that. [ 98 ] I don’t view general commentary about Wickr to corroborate A.B.’s testimony. The use of Wickr does confirm A.B.’s testimony that Mr. Hermkens used Wickr for communications, but there’s no link between these communications and anything relevant to the Crown’s theory of the case. [ 99 ] Pages 2-6.130 are not relevant. [ 100 ] Page 6.131 refers to the storage unit that figures in the passage admitted to be relevant. [ 101 ] Pages 6.131 to the end of the call are relevant.

The remaining passages are irrelevant.

Tab 22, July 4/19 @1502 [ 102 ] Pages 2-3.37 and 7.164-14.369 were redacted. [ 103 ] The Defence conceded the relevance of p. 5.93-124. [ 104 ] The identification of Ammo as a subject of conversation is relevant (3.40-41), but what follows from 3.42 to 4.75 is not relevant. [ 105 ] At 4.80, there is reference to Ammo having stolen Mr. Hermkens’ goods. The theft would have included the thing in the storage unit. At 5.93, Mr. Hermkens asserted that Ammo took “my Thule [as transcribed], too.” The Crown contends that the phonetically similar but differently spelled and conceptually different term “toolie” was meant.

Mr. Hermkens continues to refer to the Thule/toolie on p. 5. [ 106 ] On page 6, Mr. Hermkens refers to nearly $20,000 owed by Ammo to him, which Mr. Hermkens in turn owes to big homie. Mr. Hermkens’ place in big homie’s operation is confirmed by him: “If I wasn’t who I am to this guy, I’d probably have to look over my shoulder right now in here” (6.144-145). [ 107 ] On p. 14.381, Mr. Hermkens asks that Ammo be asked “where my Thule/toolie is.” [ 108 ] The passages from 4.76 – 7.163 and the p. 14 passages are relevant as going to Mr. Hermkens’ possession of a firearm, his knowledge of Mr.

Lee as big homie, and to Mr. Hermkens’ place in Mr. Lee’s organization. Tab 24, July 11/19 @2049 [ 109 ] The conversation begins with Mr. Hermkens talking to Heather. He asks whether big homie has talked to Crazy (Mr. Thorne). Mr. Hermkens’ concern is with getting bail money together and he asked Heather to ask big homie whether Crazy has “fixed anything” for Mr. Hermkens. Mr. Hermkens should have more than the $5,000 by now. [ 110 ] The conversations from 2.27-3.78 is relevant to show that Mr. Hermkens knows Mr. Lee who in turn knows Mr. Thorne.

This also may confirm A.B.’s testimony that relationships between these parties existed. The Crown interprets the amounts discussed as relating to more than just funding for bail or payments for drug debts. The money owing concerns what was owing for the killing of Mr. Dumont. That is a possible

interpretation, in context. [ 111 ] I find that the conversations from 2.27-3.78 are relevant. The remainder of the call, which involves Mr. Hermkens talking to his mother, is irrelevant (pp. 4-5). Tab 27, Aug 5/19 @2032 [ 112 ] Pages 2-5 were redacted. [ 113 ] The Defence conceded the relevance of 10.251-257. That passage concerns a threat to Mr. Hermkens from a crew in the ERC. Mr. Hermkens said “they’re trying to say that the guy that I shot was like some fucking high up fucking guy to one of these crews.” That may be interpreted as an admission that (at least) Mr.

Hermkens shot an individual that could have had some links to individuals in ERC. I recognize that this may not have been an admission but a report of what the third parties had believed. Regardless, Mr. Hermkens’ comments in this passage are admissible. [ 114 ] At pp. 6-7, Mr. Hermkens appears to be talking about Ammo. [ 115 ] Of greatest significance in these pages is Mr. Hermkens referring to his big homie as a sick plug. The passage at 6.131-136 confirms terminology that A.B. claimed Mr. Hermkens used and Mr. Hermkens’ relationship with big homie. [ 116 ] Mr.

Hermkens talked about what I interpret to be losing money, which has now become Mr. Hermkens’ problem with big homie. He also talked about his arrest and speculates that Ammo may have been a rat. I consider the material about Ammo at 7.139-166 to be irrelevant. [ 117 ] Mr. Hermkens continued, though, that Ammo stole his thing and brought up one of Mr. Hermkens’ ex-girlfriends, who would be A.B. The passage at 8.167-172 is relevant. It is relevant to Mr.

Hermkens’ possession of a firearm (before it was stolen) and to corroborate A.B.’s account of going to Calgary to work with A.B. [ 118 ] Page 8.183 refers to “thing,” but in the context of 8.174-9.203, what is referred to cannot be discerned. This passage is irrelevant as unintelligible. [ 119 ] The passage commencing at 9.211- 10.250 is relevant to set the context for 10.251-257, the “admission” passage. Lines 10.258- 261 complete the context. [ 120 ] Page 11.263-280 is relevant, in that it shows Mr. Hermkens connection with Steve, who may be Mr. Thorne, and Mr. Thorne’s connection with Ammo.

This evidence is relevant to showing the connections between parties connected with the Lloydminster drug trade. [ 121 ] So: The relevant portions of this conversation are at 6.131-136, 8.167-172, and 9.211-11.280. Tab 29, August 8/19 @2000

[ 122 ] Pages 6.126-11 were redacted. [ 123 ] At pp. 2-3.51, Mr. Hermkens (speaking, it appears, to his sister Heather), requests that Little J be told that the $2000 he was supposed to drop off with Crazy should be dropped off with Heather instead. Crazy “got booked.” The Crown views these comments as going to the contribution of Little J to the payment for Mr. Dumont’s killing, to Mr. Thorne’s continuing role in the completion of the conspiracy, and to Mr. Hermkens’ acquaintance and relationship with Little J and Mr. Thorne.

The Crown also viewed payments flowing through Heather as confirming A.B.’s account of Heather receiving earlier payments for Mr. Hermkens. [ 124 ] Pages 3.52-4.59 are not relevant. [ 125 ] At 4.60, Mr. Hermkens directs Heather to go on Wickr and “message those please.” This confirms A.B.’s claim that Mr. Hermkens used Wickr for communications. [ 126 ] I do not consider 4.61-5.104 to be relevant. [ 127 ] In my view, the passage at 5.105-6.125 is relevant to provide context for the amounts owing by Little J.

This passage may show another feature of the conspiracy – “you guys told me my bail would be covered.” Alternatively, it may show that the conversation only concerned raising money for bail. Regardless, this passage is relevant. [ 128 ] So: pp. 2.1-3.51 are relevant, as is 4.60, and 5.105-6.125. The remainder of this conversation is irrelevant. Tab 30, August 9/19 @1309 [ 129 ] Pages 2.11-4.79 are irrelevant. [ 130 ] The call, originally to Dani, went to Heather. Mr. Hermkens asked her if his big homie had messaged her and she said he was going to cover Mr. Hermkens’ bail (5.80-83). This is relevant to Mr.

Hermkens’ relationship with Mr. Lee. [ 131 ] He then asked Heather to send big homie a message that was “super important,” on Wickr. He said “this kid from Lloyd just landed.” The kid said Crazy gave his mom 19 grand. He referred to a kid that, apparently, worked for Crazy called Minnow, who is a “junkie falldown.” Mr. Hermkens proposed to big homie that he help out a friend that just got out from Drum (5.84-6.130). This evidence is relevant to Mr. Hermkens’ connection to big homie, big homie’s connection to Mr.

Thorne (otherwise why care about what Crazy spent and whether he has junkie falldowns working for him), and to Mr. Hermkens’ role in big homie’s operation. Since Mr. Hermkens is talking about other people, this evidence would not provide a foundation for an immediate inference respecting any conspiracy outside of drug trafficking. Minnow has a connection to Mr. Moran through cellphone records. [ 132 ] Mr. Hermkens then talked about Little J. Little J had not sent anything to Heather. Mr.

Hermkens told Heather to message “my buddy” on Wickr, so that “my buddy” could get Little J to send “that paper” (which I interpret as money). These passages concern amounts owing by Little J to Mr. Hermkens, which the Crown asserts relate to his part of the payment for the killing of Mr. Dumont. Page 6.130-7.161 contains the relevant material. [ 133 ] Pages 7.162-8.192 are irrelevant. [ 134 ] At p. 9.193-10.243, Mr. Hermkens asks Heather to send another note to induce Little J to pay what’s owing to Mr. Hermkens. That passage too is relevant.

It ties into the August 29 conversation that referred to Little J having been expected to drop off money with Crazy, but Crazy was booked. Pages 10.244-11.267 are irrelevant. [ 135 ] So: The relevant passages at this tab are 5.80-7.161 and 9.193-10.242. Tab 31, August 12/19 @2106 [ 136 ] This conversation again concerned amounts owing by Little J to Mr. Hermkens. Mr. Hermkens asked the “unknown female” (perhaps Heather) to send a message to Little J through Wickr inducing Little J to pay the $2,000 owing to Mr. Hermkens (3.43-49). Mr.

Hermkens asked that a message be sent from him to Little J conveying that he’s getting upset at how long it’s taking. Mr. Hermkens directed further communications between the sender and Little J, and directed her to say that Little J was “not staying true to your word.” He urged the sender to keep after Little J. The messaging directed by Mr.

Hermkens started to use the plural – “you guys” (5.111), “you guys are starting to look like you don’t stay true to your word” (6.131). [ 137 ] In my view, as the Crown argued, it is reasonably possible that the language used was not consistent only with a drug debt owed by Little J. The context does not appear to concern recurring amounts payable respecting drug purchases or sales, but concerns a specific obligation to pay Mr. Hermkens. That obligation, in turn, could have been Little J’s contribution to the payment for Mr. Dumont’s killing.

That obligation is some evidence of Little J’s participation in the conspiracy to kill Mr. Dumont. Further, the transition to the use of the plural suggests that Mr. Hermkens was of the view that not only Little J but others – presumably those in relatively close contact with Little J (otherwise why say it to him?) – were not “true to their word.” The conspiracy extended beyond Little J to (e.g.) Mr. Thorne. I do not find that this evidence, slim as it may be, is incapable of contributing to the inferences sought by the Crown. [ 138 ] I do take into account the comment at 6.129, where Mr.

Hermkens directs the sender to say “I’m just middle-manning the fucking shit, and this ... shit’s starting to piss me off.” If Mr. Hermkens were referring to himself as the middle-man (e.g. as between big homie and the Lloydminster distributors), that might confine the conspiracy to drug trafficking. But an available

interpretation is that the “middle-man” is the persona portrayed by the sender of the message – even though this persona wasn’t the one owed the money, he was angered by Little J (and perhaps others’) lack of cooperation. This

interpretation would not limit the messages to concerns about a drug debt.

[ 139 ] In my view, this conversation is relevant in its entirety. Tab 49, September 1/19 @1906 [ 140 ] Pages 3.40-54, 4.80-7.160, 13.330-331, 14.369-376, 17.451-19.509 were redacted. [ 141 ] The call, originally to “Chelsea” (presumably not Chelsey Hart, who has remained distraught over Mr. Dumont’s death), was three-wayed to an unknown male. [ 142 ] This call too concerned Little J, the amount he owed, and the failure to pay, as well as Crazy having been booked (4.56-63). Mr. Hermkens said that Little J still owes “five racks,” which I interpret to be $5,000.

That’s a larger number than as referred to in earlier calls. Mr. Hermkens did say that he was trying to put bail money together and “I need like all the money I can get” (5.75-76). Mr. Hermkens later returned to Little J’s failure to pay – he’d been patient, but it has been four months (14.362-365). [ 143 ] The unknown male confirmed (it appears) that Crazy was addicted to the drugs he was selling (7.163-177). [ 144 ] Mr. Hermkens told the unknown male that “he was supposed to give me ten. I got five” (8.187-188, 195). In context, “he” would appear to be Mr.

Thorne. [ 145 ] The unknown male expressed dissatisfaction with the working arrangements and indicated he was planning to go out on his own. [ 146 ] Mr. Hermkens asked if the unknown male talked to Minnow. There was some discussion then about Minnow and his girlfriend. Mr. Hermkens appears to confirm that Minnow works for “my boy,” Mr. Thorne, who hasn’t gotten out yet (11.291-292, 15.401). Later Mr. Hermkens said “Tell Minnow what’s up and shit ...” (15.397-398). [ 147 ] Mr. Hermkens appears to have claimed that his homie (I interpret this as Mr. Lee) put up $30,000 for Mr. Thorne’s bail (12.310).

He also said that his homie said he’d cover Mr. Hermkens’ bail (12.324). [ 148 ] Mr. Hermkens said “I thought everything ... was supposed to be easier now.” The unknown male replied “Yeah, well it’s just less dangerous, right. Nothing got easier ... it would take everybody sobering up for half a minute to be able to fuckin’ function like.” Mr. Hermkens said “yeah” (15.405-411). Mr. Hermkens said “Like, a lot safer now, eh? People can breathe. (16.420-421). [ 149 ] The unknown male said “Well, pretty much.

Like, you know, it wasn’t so much me but, little homie there ... he was always traumed [“trauma’d”] right out ....” Mr. Hermkens said “Well cause he’s fuckin’ the dude’s BM,” which the Crown offered was an abbreviation for baby mamma (16.422-427). [ 150 ] Mr. Hermkens said that everyone’s in his disclosure, except for the unknown male. The unknown male said “that’s why I made the smart choice to stay out of that, man .... when fuckin’ Crazy was doing it, I was like, yo man, that’s bad news like.” Mr. Hermkens said that he’d “freaked out” on Crazy too. “I’m like, what are you fuckin’ thinking, man?

I’m like, you fuckin’ idiot. I’m like, I’d be choked too” (16.429-443). [ 151 ] The relevance of the amounts owing by Little J was discussed before. Crazy’s drug addiction confirms elements of A.B.’s testimony. Mr. Thorne’s obligation to pay Mr. Hermkens $10,000 is mentioned. This is some evidence relevant to the Crown’s conspiracy theory. [ 152 ] Mr. Hermkens initiated talk about Minnow and asked that a jocular message be sent to him. That suggests that he had some form of relationship with Minnow. Minnow is connected to Mr. Moran through Mr. Moran’s phone records.

The “Minnow” point provides some evidence of the conspiracy reaching out to Mr. Moran. [ 153 ] The turn of the conversation starting at 15.405 lays out the background to the Crown’s theory of the case. Little J and Crazy slept with Chelsey Hart. Mr. Dumont was, understandably, “choked.” Little J was “trauma’d” by his treatment by Mr. Dumont. With Mr. Dumont out of the picture, everything was supposed to be easier, a lot safer now. [ 154 ] In my opinion, the material in this tab, as redacted by the Crown, is relevant.

Tab 32, September 4/19 @ 1927 [ 155 ] Page 8.196-198 was redacted. [ 156 ] The Defence conceded that the material at this tab is admissible, except for 5.92-101. [ 157 ] In the passage in question, Mr. Hermkens begins by asserting that “I wasn’t even there,” that is, at the murder scene. Mr. Hermkens said that he was advised that his fingerprint was found on a shell at the scene. [ 158 ] Mr. Hermkens went on to claim “it doesn’t put me there” (5.104). [ 159 ] However, Mr. Hermkens’ belief was erroneous. There was no such forensic evidence, no fingerprint on a shell casing.

There would be a basis for an inference that Mr. Hermkens had misunderstood the evidence concerning his fingerprint. There was no argument against admissibility on the grounds of solicitor-client privilege, understandably, since the conversation was by Mr. Hermkens with a third party when he knew that the conversation was subject to recording. [ 160 ] The Crown claims that Mr. Hermkens’ comments amounted to a sort of admission by omission. He did not say that his fingerprints could not have been on a shell, that the evidence must somehow be wrong or there must be a mistake. The argument relating

to what Mr. Hermkens didn’t say was supported, continued the Crown, by passages in the admittedly relevant portions of this conversation. When considering allegations made by two women who were at Mr. Moran’s house, Mr. Hermkens did not say that he was framed and they were lying. Rather, his focus was on suppressing their evidence, getting them to recant or not show up. [ 161 ] One issue, that might be explored at a later point, was whether, in the circumstances of this conversation, Mr. Hermkens might have been expected to offer protestations of the type envisaged by the Crown.

See R v Briscoe , 2012 ABQB 158 , Yamauchi J at paras 8- 15. I might add that while the evidence, as interpreted by the Crown, might reflect on Mr. Hermkens’ state of mind, the probative value of that evidence would have to be approached in light of the after-the-fact evidence (as it is now known) jurisprudence. [ 162 ] Nonetheless, in my view, on the evidence and arguments before me, at least one reasonable

interpretation of Mr. Hermkens’ discussion of the shell was that he assumed or did not dispute that his fingerprint was on a shell. Insofar as there were an implicit admission, it would only be an admission of that. Mr. Hermkens was not admitting, in particular, that he had been at the murder scene. Further, his fingerprint was not in fact on a shell. [ 163 ] Mr. Hermkens, at worst, made an erroneous inculpatory implicit admission. I cannot say that this evidence is not relevant, as a piece of circumstantial evidence.

By itself, considered in isolation, the evidence would be at considerable remove from proof of a fact-in- issue. [ 164 ] The discussion at 5.92-101 is relevant. The entire conversation, save for the redacted part, is relevant. Tab 33, September 4/19 @ 2124 [ 165 ] Pages 8.216 - 14 were redacted. [ 166 ] The Defence conceded the admissibility of the remainder of this conversation, except for the passage at p. 7.179-188. [ 167 ] The passage concerns the need for two potential witnesses to “shut up.” Mr.

Hermkens might have wished them to cease making their allegations because their allegations were false, but the evidence also supports the inference that he simply wished to suppress their evidence because it was damaging to him. [ 168 ] Relevance does not depend on exclusivity of inference. The passage is relevant to the Crown’s contention that Mr. Hermkens was seeking to suppress evidence that would lead to his conviction.

Whether that is the inference that should be drawn, based on all the evidence at the end of trial, will be my later responsibility as trier of fact. [ 169 ] The entirety of this conversation is relevant, save for the redacted portion. Tab 50, October 6/19 @ 1912 [ 170 ] Pages 4.86-5.103, 5.116-6.134 were redacted. [ 171 ] In my opinion, pp. 2 and 3 are irrelevant. I discern no connection to the Crown’s case, save a reference to Wickr and Ammo being on unit 11. [ 172 ] On pp. 4-5, Mr. Hermkens is referring to his poor financial status. He is upset because he is not getting money that, it appears, he was expecting.

Some desperation was evident. Later Mr. Hermkens said “I’m stressed, I’m stressed out to the max” (7.174-175). [ 173 ] Some messages then came in to the unknown female call participant from, in the Crown’s

interpretation, Mr. Lee, big homie. He wanted to choke Crazy out (6.155). [ 174 ] Mr. Hermkens told the unknown female to respond “me too.” He went on to direct her to say that he – meaning Crazy – “cried to me that this and that was fucking going on, and that everything had to be done ... and ... I got next to no money from him” (7.156-162). Later he added “this guy cried to me ... to make everything right and now ... I’m sitting in here ... I’m just like stuck, left hanging” (8.205-208). [ 175 ] Crazy told Mr. Hermkens that he gave you (meaning big homie) all this money for Mr. Hermkens (7.164-165, 167-168).

Mr. Hermkens knew Crazy was “talking shit” (7.168). [ 176 ] After a report from Mr. Lee that he was behind $150,000 and a comment that Crazy had told Mr. Hermkens that everything had been good, Mr. Hermkens said “he told me I was gonna get 100,000 plus out of everything.” [ 177 ] The conversation at pp. 4-5 is relevant to Mr. Hermkens not having been paid. It is circumstantially relevant to the terms of the conspiracy arrangement terms that had not been performed. [ 178 ] The comments about Crazy crying about what had to be done goes to the motivation for the killing of Mr. Dumont and to the arrangement with Mr.

Hermkens to do the shooting. Mr. Hermkens mentions the $100,000 figure as his compensation. But he’s in fact received next to nothing from Crazy. The evidence is relevant to the existence of the conspiracy and Mr. Hermkens’ identification as the shooter. The evidence also may confirm A.B.’s testimony as regards the existence of the conspiracy and the amount Mr. Hermkens was to be paid. [ 179 ] This conversation, save for the redacted portions and pp. 2 and 3, is relevant. Tab 37, October 9/19 @1300

[ 180 ] This conversation with Heather is about drug trafficking. [ 181 ] The conversation is relevant to show Mr. Hermkens’ acquaintance with Minnow (2.20, 3.49). It shows Mr. Hermkens communicating with, on the Crown’s

interpretation, Mr. Lee, respecting drug operations. Mr. Hermkens is making personnel management suggestions. The conversation confirms that Mr. Hermkens knew Mr. Lee, and that Mr. Hermkens had a position of responsibility within Mr. Lee’s organization – to the extent that Mr. Hermkens is providing advice about operations. [ 182 ] The conversation may provide some confirmation of A.B.’s account of Mr. Hermkens’ role in drug trafficking and his relationship with Mr. Lee. [ 183 ] This conversation is relevant to the background to the conspiracy alleged by the Crown, to Mr.

Hermkens’ knowledge of individuals involved in that conspiracy, and to corroborate A.B.’s testimony. [ 184 ] This conversation is relevant. Tab 39, October 15/19 @ 1800 [ 185 ] Pages 2-5.100 and 6.119-9.218 were redacted. [ 186 ] Only pp. 5.101-6.118 are at issue. [ 187 ] The conversation reiterates Little J owing money to Mr. Hermkens. The Crown’s

interpretation is that this obligation is for Little J’s contribution for Mr. Hermkens killing Mr. Dumont. It is evidence of the conspiracy to kill Mr. Dumont. [ 188 ] Again, there may be another

interpretation of this evidence, but relevance does not depend on exclusivity of inference. [ 189 ] The passage at 5.101-6.118 is relevant. Tab 43, October 24/19 @ 1608 [ 190 ] Pages 2.1-4.58, 5.117-9.222, and 11.288 – 13.338 were redacted. [ 191 ] Mr. Hermkens refers to disclosure he has received relating to Little J. Chelsey Hart confirmed that she slept with Little J. “[H]e’s scared and thinks buddy might be coming after him because of him sleeping with his baby mama” (4.82-84). This comment relates to Little J’s motivation for participation in a conspiracy to kill Mr. Dumont. [ 192 ] Mr.

Hermkens said that Little J should start paying his little hood tax “and I won’t fuckin’ expose his ass” (5.105-106). The “exposure” may be of Little J’s involvement in the killing of Mr. Dumont. [ 193 ] Mr. Hermkens continued that “All I wanted was the money that ... he owes to me. It’s not even for anything that I fuckin’ – it’s ... not even for any of this shit. It’s just money that he owed me from fuckin’ the streets, right?” (5.109-114). Mr. Hermkens distinguished between money owed from the streets and money that’s not even for “any of this shit” – referring, one might find, to the events involving Mr.

Dumont. This comment could be taken as an implicit or indirect admission by Mr. Hermkens of involvement in Mr. Dumont’s killing. [ 194 ] Later, Mr. Hermkens referred to “guys going off the unit today” who would go tell him – the Crown’s

interpretation being that “him” is Mr. Moran – at the preliminary inquiry “that’s not the guy you’d seen. And I walk. You know what I’m saying?” (9.240-245). This could be understood to be evidence of suppressing evidence of guilt. [ 195 ] The unknown male said “he needs to man up and let the ... innocent go free,” to which Mr. Hermkens said yeah, for sure (10.252-253). Mr. Hermkens continued that “if I get off then his shit will get twisted up at trial and he’ll get off” (10.254-255). [ 196 ] Mr. Hermkens said “no one even fuckin’ did anything, man.

Like, we weren’t even ... the people that were ... these guys are trying to accuse. So it fuckin’ pisses me off. But he needs to just take responsibility for his shit. And shut his little trap mouth, you know?” (10.267-270). On the one hand, this may be interpreted as Mr. Hermkens protesting his innocence. On the other hand, Mr. Hermkens does refer to Mr. Moran not providing evidence against him and so could contribute (along with other evidence) to the inference that Mr. Hermkens was the shooter. [ 197 ] This conversation, save for the redacted material, is relevant.

Tab 44, November 22/19 @1454 [ 198 ] Pages 2.1-4.88 and 7.156-168 were redacted. [ 199 ] This conversation begins with Mr. Hermkens complaining again about Little J and the need for him to pay something to him (5.89-93). [ 200 ] Mr. Hermkens said that he thought he was Little J’s friend. “I did something nobody else ever fuckin’ would do for anybody. You know?” (5.98-99). Mr. Hermkens confirmed that he has “never fuckin’ said shit.” He “held it down the whole time” (5.103-104). [ 201 ] Jay Johnson said he’d already told Little J that Mr. Hermkens wanted $16,000.

Little J said I’m not paying that, I’m paying five at most (6.147-149). [ 202 ] Mr. Hermkens said that him saying that explains everything (6.150-151).

[ 203 ] Mr. Hermkens’ comment about what he did for Little J could be interpreted as an admission of guilt. Mr. Hermkens has not disclosed Little J’s role in the conspiracy to kill Mr. Dumont – his comment about staying silent may be some evidence of Little J’s complicity in the conspiracy. [ 204 ] The passages from 5.89 to 7.155 are relevant. Tab 46, February 14/20 @1849 [ 205 ] Pages 2.9-3.60 are irrelevant. [ 206 ] At 4.70-5.104, Mr. Hermkens and Mr. Johnson discuss what may be interpreted as firearms.

They discuss a buyer. [ 207 ] They do refer to “clothes.” This could be a reference to firearms, in context (4.68, 4,89, 6.130, 9.215). Their talk then returned more explicitly to firearms – Mr. Hermkens said “it’s ... tactical, right?” (7.159). [ 208 ] At 8.174, the transcript reflects “unintelligible,” but what was heard was teeth, said by Mr. Johnson. This, through A.B.’s testimony, would have referred to ammunition. Mr. Hermkens responded that “they’re cheap, bro” (8.175). Mr. Hermkens said that a female friend of Mr. Johnson can “get you ... a hundred of them for like, fifty bucks.” [ 209 ] Mr.

Hermkens asked Mr. Johnson to attempt to get some money from Little J (8.199-9.202). [ 210 ] In addition to the relevance of the evidence relating to Little J, this conversation is relevant to establishing the vocabulary required for understanding calls 6, 47, and 48. The call also shows that Mr. Hermkens had access to firearms, and so had access to the means for shooting Mr. Dumont. [ 211 ] This conversation, except for pp. 2.9-3.60, is relevant. C. Conclusion [ 212 ] I’ve attached as a

summary of my findings respecting the ERC Calls as

Schedule A. Heard on the 3 rd , 4 th , 6 th , and 9 th days of November, 2021. Delivered at the City of Edmonton, Alberta, the 12 th day of November, 2021. Signed at the City of Edmonton, Alberta this 15 th day of November, 2021. W.N. Renke J.C.Q.B.A. Appearances: Dallas Sopko and Trevor Peeters Edmont Rural and Regional Response Office Alberta Crown Prosecutions for the Crown Paul Moreau Moreau & Company for the Accused

Schedule A A. Admissibility No Longer in Dispute Conceded in pre- voir dire : • tab 6, May 29/19 @1404 (p. 10.236-14 redacted) • tab 8, May 30/19 @1845 • tab 16, June 13/19 @1958 • tab 18, June 21/19 @2112 • tab 20, June 25/19 @2157. Conceded during the voir dire : • tab 47, February 18/20 @ 1547 • tab 48, February 18/20 @ 2205. B. Admissibility in Dispute Tab 1, May 21/19 @1310 Pages 11-23 of this call were redacted. Retain p. 2 to set context and delete pp. 3 and 4 as irrelevant. The remainder of the disputed passages are relevant. Tab 2, May 21/19 @1332 Pages 2-12.317 were redacted, as were pp. 14.370-18.

The Defence conceded the relevance of 12.318-333. The disputed passages as well as the admitted passage are relevant. Tab 3, May 24/19 @2044 Pages 2-7.167 were redacted, as were pp. 8.196-11. The Defence conceded that 8.183-195 were admissible. The disputed passage as well as the conceded passage are relevant. Tab 5, May 28/19 @1838 Pages 7.177-8.213, 11.311-15 were redacted. The disputed passages are relevant. Tab 9, June 9/19 @1809 Pages 2 -17.461 were redacted, leaving two disputed pages. The passage at 9.511-520 is irrelevant. Other than that, pp. 18 and 19 are relevant.

Tab 12, June 9/19 @1809 Pages 8.195-15.407 and 17-18 were redacted. The Defence conceded the relevance of p. 16. The disputed passages as well as the conceded passage are relevant. Tab 15, June 12/19 @2003 The Defence conceded that pp. 7.148-18.181 were relevant.

Pages 2-6.130 are not relevant. Pages 6.131 to the end of the call are relevant. Tab 22, July 4/19 @1502 Pages 2-3.37 and 7.164-14.369 were redacted. The Defence conceded the relevance of p. 5.93-124. p. 3.42 to 4.75 is not relevant. The passages from 4.76 – 7.163 and the p. 14 passages are relevant. Tab 24, July 11/19 @2049 Pages 2.27-3.78 are relevant. Pages 4-5 are irrelevant. Tab 27, Aug 5/19 @2032 Pages 2-5 were redacted. The Defence conceded the relevance of 10.251-257. The relevant portions of this conversation are at 6.131-136, 8.167-172, and 9.211-11.280.

Tab 29, August 8/19 @2000 Pages 6.126-11 were redacted. Pages 3.52-4.59 are not relevant. Pages 4.61-5.104 are not relevant. Pages 2.1-3.51 are relevant, as is 4.60, and 5.105-6.125. The remainder of this conversation is irrelevant. Tab 30, August 9/19 @1309 Page 2.11-4.79 are irrelevant. Page 7.162-8.192 is irrelevant. Pages 10.244-11.267 are irrelevant. The relevant passages at this tab are 5.80-7.161 and 9.193-10.242. Tab 31, August 12/19 @2106 This conversation is relevant in its entirety. Tab 49, September 1/19 @1906 Pages 3.40-54, 4.80-7.160, 13.330-331, 14.369-376, 17.451-19.509 were redacted.

The material in this tab, as redacted by the Crown, is relevant. Tab 32, September 4/19 @ 1927 Page 8.196-198 was redacted. The Defence conceded that the material at this tab is admissible, except for 5.92-101. The entire conversation, save for the redacted part, is relevant. Tab 33, September 4/19 @ 2124 Page 8.216 – 14 was redacted. The Defence conceded the admissibility of the remainder of this conversation, except for the passage at p. 7.179-188. The entirety of this conversation is relevant, save for the redacted portion.

Tab 50, October 6/19 @ 1912 Pages 4.86-5.103, 5.116-6.134 were redacted. pp. 2 and 3 are irrelevant. This conversation, save for the redacted portions and pp. 2 and 3, is relevant. Tab 37, October 9/19 @1300 This conversation is relevant. Tab 39, October 15/19 @ 1800 Pages 2-5.100 and 6.119-9.218 were redacted. Only pp. 5.101-6.118 are at issue. The passage at 5.101-6.118 is relevant. Tab 43, October 24/19 @ 1608 Pages 2.1-4.58, 5.117-9.222, and 11.288 – 13.338 were reda

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