R v Hermkens, 2021 ABQB 1016

Court of Queen’s Bench of Alberta Citation: R v Hermkens, 2021 ABQB 1016 Date: 20211214 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 Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________

[ A

summary of this decision was delivered orally on December 3, 2021, in accordance with R v Lawrence, 2020 ABCA 268 at paras 21 – 24 . A copy of the full written reasons and the

summary were filed with the Court and provided to the parties, including Mr. Hermkens. I reserved the right to make grammatical, stylistic, and other minor changes to the written reasons. The

summary read into the record comprised Parts IX and X of these written reasons. ] [ 1 ] On April 27, 2019 in Lloydminster, Alberta, Raymond Dumont was murdered as he sat in a car. He was shot. His passenger, Chelsey Hart, was slightly wounded in the attack. [ 2 ] Mr. Hermkens and Mark Moran were jointly charged with first degree murder in connection with the killing of Mr. Dumont. [ 3 ] The trial proceeded by judge alone. On November 1, 2021, I determined that Mr. Moran’s trial must proceed separately. Mr. Moran’s trial was adjourned and the trial continued against Mr. Hermkens. [ 4 ] The case against Mr.

Hermkens was largely circumstantial. [ 5 ] The central issue was whether the Crown had established, beyond a reasonable doubt, that Mr. Hermkens shot Mr.

Dumont. [ 6 ] I will proceed by • addressing general evidential principles, including the burden and standard of proof and the approach to circumstantial evidence • describing the sources of evidence in this case, including the agreed statements of facts, video-recorded evidence, cellphone records, recordings of telephone conversations originating at the Edmonton Remand Centre, and witnesses, including experts, “non- expert analysis witnesses,” independent observation witnesses, and “acquaintance” witnesses as Vetrovec witnesses • reviewing the participants in the events surrounding Mr.

Dumont’s death and events occurring before, during, and after the shooting of Mr. Dumont • reviewing the evidence of A.B., a central Crown witness • discussing the firearms evidence • discussing the cellphone records • providing some preliminary determinations respecting corroboration of Vetrovec witnesses, whether a 2006 Pontiac Wave found burning near Sherwood Park was connected with the shooting, and identifying the user of the 4885 cellphone number • addressing the issue of the identification of the individual who shot Mr. Dumont, with regard to exculpatory and inculpatory statements by Mr.

Hermkens, the credibility of Vetrovec witnesses, Mr. Hermkens’ opportunity, means, and motive for committing the offence, the significance of links between Mr. Moran and Mr. Hermkens and the co-conspirators’ exception to the hearsay rule, and after-the-fact conduct evidence • setting out my findings of fact • providing my decision as to whether Mr. Hermkens is guilty of first degree murder in connection with the shooting of Mr. Dumont. [ 7 ] Mr. Moran did not participate in this trial. Any factual findings relating to Mr. Moran are based on the evidence in Mr.

Hermkens’ trial, solely concern the issues faced by Mr. Hermkens, and have been made for the purposes of the trial of Mr. Hermkens alone. Table of Contents I. Burden and Standard of Proof and Evidential Issues . 9 A. Proof Beyond a Reasonable Doubt 9 B. Circumstantial Evidence . 11 C. Other Bad Act Evidence . 16 D. After-the-Fact Evidence . 16 II. Sources of Evidence . 18 A. Agreed Statements of Facts . 18 B. Door Bell Camera Videos . 18 C. Cellphone Records . 18 1. Samsung S7, Phone Number 8894 . 18 2. Bell Canada Subscriber, Phone Number 4885 . 19

3. CEA ss. 31.1-31.8 . 19 D. ERC Recorded Phone Calls . 19 1. Voir Dire . 19 2. CEA ss. 31.1-31.8 . 19 3. Aspects of the ERC Recordings . 20 E. Witnesses . 20 1. Expert Witnesses . 21 2. Non-Expert Analysis Witnesses . 21 3. Independent Observation Witnesses . 22 4. Acquaintance Evidence . 22 III. Participants and Events . 28 A. Participants . 28 1. Ray Dumont 28 2. Steve Thorne, aka Crazy . 29 3. Jason Krysta, aka Little J . 30 4. Mark Moran . 30 5. Heather Hermkens . 31 6. Janet Fayant 31 7. Lucy Hirayama . 31 B. Mr. Hermkens . 31 C. Events Preceding April 27, 2019 . 31 1. Mr. Dumont and Mr. Krysta and Mr.

Thorne . 31 2. Cage, Ms. Shortt, and Mr. Graver, around April 22, 2019 . 32 3. Cage, Mr. Moran, Mr. Graver, earlier on April 27, 2019 . 32 4. Ms. Hart and Mr. Dumont, earlier on April 27 . 34 D. Sequence of Events: The Shooting and its Aftermath . 34 1. Door Bell Video . 34 2. Shortly Before the Shooting . 35 3. The Shooting . 35 4. Immediately After the Shooting . 36 5. Police Response to the Shooting . 37 E. After the Shooting . 39 1. Recovery of a Pontiac Wave . 39 2. Wickr Message . 40 3. Mr. Moran to Hospital 40 4. Seizure of Mr. Moran’s Cellphone . 41 5. Recovery of the Avalanche . 41 6. Arrest of Mr.

Moran . 42

7. Arrest of Mr. Hermkens . 42 IV. A.B. 42 A. Background . 42 B. Overheard Plans . 43 1. Contents of the Calls . 43 2. Communications with Mr. Thorne . 44 C. A Handgun and a Rifle . 44 1. Photograph of the Handgun . 45 2. Facebook Profile Photo of Mr. Hermkens . 45 3. Handgun Photo and Facebook Photo . 45 D. Mr. Hermkens’ Departure and Return . 45 1. Departure . 45 2. Return . 46 E. Sending A.B. and Heather to Lloydminster 46 1. The Bags . 46 2. Bag Contents . 47 3. Return to Blackfoot 47 F. The Use for the Money . 47 G. Mr. Dumont’s Death . 47 H. Getting A.B. from Hospital 47 I. Mr. Hermkens’ Arrest 48 J.

The Edmonton Storage Locker and a Gun . 48 1. Communication through A.B. with Ammo . 48 2. A.B. to Calgary and Back . 48 3. Ex 11, A20, C .. 48 K. Additional Information . 49 1. Use of Wickr 49 2. Terminology . 49 3. Rick Thorne . 49 4. Corree Shortt 49 5. A.B.’s Phone Numbers . 49 V. Firearms Evidence . 49 A. Testimony of Julianna Masson . 49 B. Testimony of Cpl. Jeremy Buote . 50 1. Ammunition . 51 2. Availability of the Sig Sauer 1911-22 . 51 3. Image Comparisons . 51 4. Test Firing . 53

C. Some Conclusions . 53 VI. Cellphone Records . 54 A. Phone Numbers Associated to Individuals . 54 1. 4885 . 54 2. Linked Numbers and Individuals . 54 B. Mark Moran’s Cellphone Records . 55 1. Contact Logs . 55 2. SMS Messages . 55 3. Call Log . 56 C. Cellphone Records for the 4885 Number 56 1. Cell Tower Tracking Information . 56 2. Call Records . 59 VII. Preliminary Determinations on the Evidence . 62 A. Corroboration of Jesse Graver 62 B. Corroboration of A.B. 63 1. Access to Information . 63 2. Financial Motive . 64 3. Handgun and Rifle . 64 4. Departure and Return . 65 5. Mr.

Hermkens’ Words on Returning . 65 6. The Avalanche . 65 7. Post-Arrest Storage Locker Attendance . 66 8. Additional Important Information . 66 9. Conclusion respecting Corroboration of A.B. 66 C. The Wave . 66 1. Timeline . 66 2. Consistency of Description and the Appearance of the Wave . 67 3. The Shooting to the Arson – Timeline Compatibility . 67 4. Inference from Burning . 67 5. Linkage to 4885 Tracking . 68 6. Linkage to 4885 Calls . 68 7. Conclusion . 68 D. The User of the 4885 Number 68 1. Defence Arguments . 69 2. Evidence Identifying the User of the 4885 Number 71 3. Conclusion . 75 VIII.

Identifying the Shooter 75 A. Exculpatory Comments . 76

B. Inculpatory Comments . 77 C. Credibility . 78 1. Mr. Graver 78 2. A.B. 79 D. Opportunity . 81 1. Presence in Lloydminster 81 2. Presence in the Area of the Homicide: The Wave . 81 3. Presence in the Area of the Homicide: Mark Moran . 83 4. Presence at the Homicide Site . 83 E. Means . 83 1. Bullets . 83 2. Bullets and Fingerprints . 84 3. The Handgun and the Rifle . 85 4. AK-47 . 85 5. Two Rifles . 87 6. A “Fifteen”? . 88 7. Conclusion concerning Means . 89 F. Motive . 89 1. Mr. Thorne and Mr. Krysta and Ms. Hart 90 2. Mr. Thorne and Mr. Krysta and Mr. Dumont 90 3. Mr. Thorne and Mr. Krysta and Mr.

Hermkens . 92 G. Design: Link to Mark Moran . 103 1. Prior Association . 103 2. Communications on April 27 . 103 3. Links to the Avalanche . 103 4. The Handgun . 104 5. Common Design . 106 H. Co-Conspirator’s Exception to the Hearsay Rule . 107 1. The Rule . 107 2. The Evidence . 109 3. The Statements . 110 I. After-the-Fact Conduct Evidence . 111 1. Previously Discussed Evidence . 111 2. Witness Contact 112 IX. Assessment 114 A. Review of Findings of Fact 114 1. The Killing of Mr. Dumont 114 2. Upon Arrest and Seizure . 115

3. The Avalanche. 115 4. The Wave and the Shooting. 115 5. The User of the 4885 Number 116 6. Opportunity – Presence in Lloydminster 117 7. Opportunity – Presence Near the Homicide Site. 117 8. Opportunity – Mr. Hermkens and the Wave. 117 9. Opportunity – Presence at Homicide Site. 117 10. Means – Possession of a Firearm.. 117 11. Motive. 119 12. Links to Mark Moran. 119 13. After-the-Fact Conduct: Witness Contact 120 14. Admission. 120 B.

Summary. 121 X. First Degree Murder 121 A. Murder 122 1. Cause of Death. 122 2. Culpable Homicide by Unlawful Act 122 3. Intention to Cause Death. 122 B. Classification of Murder 123 1. Planned and Deliberate Murder 123 2. Contracted Murder 124 C. Conviction and Sentence. 124 I.

Burden and Standard of Proof and Evidential Issues [8] I must bear in mind two linked sets of principles, those concerning proof beyond a reasonable doubt and those concerningthe assessment of circumstantial evidence, as well as the engagement of circumstantial evidence with the “bad character evidence” rulesand the approach to after-the-fact conduct evidence, a type of circumstantial evidence. A. Proof Beyond a Reasonable Doubt [9] My task is to determine whether the Crown has proved, beyond a reasonable doubt, on the evidence before me, that Mr.Hermkens is guilty of the charged offence. Mr.

Hermkens may be convicted only if, on all the evidence in the case, there is noreasonable doubt or reasonable possibility that he is innocent of that offence: R v Villaroman, 2016 SCC 33, Cromwell J at para 25.Woolmington v DPP, [1935] AC 462 (HL) at 481-482. That right is constitutionally confirmed by s. 11(

d) of the Charter: “Any personcharged with an offence has the right ... to be presumed innocent until proven guilty according to law ....” [10] It is worth recalling that innocence is presumed. The starting point for the assessment of the evidence is that Mr. Hermkens isinnocent and unless the Crown can prove the essential elements of the offence beyond a reasonable doubt Mr. Hermkens remainsinnocent.

According to Chief Justice Dickson in R v Oakes, (SCC), [1986] 1 SCR 103 at 120, “[t]he presumption ofinnocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the communityuntil proven otherwise.” The Crown bears the burden of proving guilt beyond a reasonable doubt. An accused has no burden of provinghis or her innocence. [11] In this case, Mr. Hermkens called no evidence, as was, of course, his right. Mr.

Hermkens did rely on inferences from theevidence, possible conclusions that may have been drawn from the evidence, that he contended were not eliminated as rationalpossibilities and therefore prevented the Crown from establishing essential facts beyond a reasonable doubt. Mr. Hermkens alsochallenged the credibility or reliability of some Crown witnesses. Further, in recordings admitted in the proceedings, Mr. Hermkensdenied responsibility for the offence. Mr. Hermkens is entitled to rely on these denials. This case, then, was a variant of a “W(D)” case(R v W(D), (SCC), [1991] 1 SCR 742), insofar as W(

D) is itself a variant of the jurisprudence confirming that the Crown

has the burden of proving its case beyond a reasonable doubt. [12] In R v Ryon, 2019 ABCA 36 and R v Achuil, 2019 ABCA 299 at para 18 (respecting (ii) below), Justice Martin helpfullyrecast the elements of the W(

D) assessment of the totality of trial evidence under the reasonable doubt standard (with some qualificationsomitted): [51] The charge [or a judge’s self-instruction] should impart the following information: (

i) The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown …. (ii) In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit .... (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence), they may not simply assume theCrown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether thatevidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or ... otherexculpatory evidence) cannot be taken as proof of the accused’s guilt.

And see R v JHS, 2008 SCC 30 at para 12 and R v Hogg, 2013 PECA 11 at para 134, (dissent upheld) 2014 SCC 18 at para 1. [13] At para 47 of Ryon, Justice Martin confirmed that whether evidence exculpating an accused raises a reasonable doubt must beassessed in the context of the evidence as a whole. See also R v Morin, (SCC), [1988] 2 SCR 345, Sopinka J at 361 - 362.As Justice M.A. Code wrote in R v Thomas, 2012 ONSC 6653 at para 24, [24] ... A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when decidingwhether it raises a reasonable doubt.

It is at that same point in time that the trier of fact will also determine whether the Crown’switnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. Inother words, these decisions are all made at the same time on the basis of the same total body of evidence.

The so-called “three steps” inW.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering thetotality of the evidence. [14] The Court of Appeal confirmed in R v Randall, 2020 ABCA 52 at para 62 that the purpose of the W(

D) approach is to ensurethat the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. When faced withcompeting narratives or competing inferences from the evidence, the trier of fact must not simply prefer one over the other: R v CLY,2008 SCC 2, paras 6-8. The verdict should not be based on a choice between the accused’s and Crown’s evidence or inferences fromevidence, but on whether, based on the whole of the evidence, the trier of fact is left with a reasonable doubt as to the accused’s guilt. [15] I have reminded myself of further aspects of proof beyond a reasonable doubt: (

a) The reasonable doubt standard applies to elements of the offence or “vital issues:” W(

D) at 757. The reasonable doubt standard doesnot otherwise apply to individual items of evidence: R v Campbell, 2015 ABCA 70 at para 44; R v BD, 2011 ONCA 51 at para 96. (

b) The requirement that the Crown prove its case “beyond a reasonable doubt” does not require proof beyond “any” doubt - it is not astandard of absolute certainty - but the standard is one that excludes (requires proof beyond) all “reasonable” doubts about innocence,doubts that are not mere speculation, or imaginary or frivolous, or based on sympathy or prejudice: R v Lifchus, (SCC), [1997] 3 SCR 320, Cory J at para 31. (

c) A reasonable doubt may be derived from the evidence or the absence of evidence: Lifchus at para 36; R v Balla, 2016 ABCA 212 atpara 52 (sometimes what did not occur is important). [16] I have kept in mind that all, some, or none of the evidence of a particular witness may be accepted: JHS at para 10. [17] I must apply the same level of scrutiny to the inferences asserted by Crown and Defence to be drawn from the evidence: R vWanihadie, 2019 ABCA 402 at paras 33-36; R v Howe, , 192 CCC (3d) 480 (ON CA), Doherty JA at paras 59 - 64; R vNorman, , 87 CCC (3d) 153, (ON CA), Finlayson JA at 24 - 25; R v Schell, 2013 ABCA 4 at para 34; R v MJB, 2015ABCA 146 at para 33; R v McGown, 2016 ONCA 575 at para 96. [18] I must avoid “the trap of trying to ‘solve’ the factual mystery presented by fundamentally conflicting evidence, i.e., choosingbetween two stories:” R v Avetysan, 2000 SCC 56, [2000] 2 SCR 745, Major J at para 21, , 174 Nfld & PEIR 34 (NLCA), Green JA at para 105.

B. Circumstantial Evidence [19] From one perspective, there is no need to attend to any peculiarities of circumstantial evidence, as opposed to direct evidence.Both are species of evidence. Either will support a conviction. Neither has a higher “rank” as proof. The question at the end of a caseinvolving circumstantial evidence is that same as the question at the end of a case that did not involve circumstantial evidence: did theCrown prove the essential elements of the offence beyond a reasonable doubt? Circumstantial evidence may be contended to supportboth inculpatory and exculpatory inferences.

To convict, the trier of fact must be sure that the evidence does not support reasonable

exculpatory inferences, or, put another way, that the only inferences that may rationally be drawn from the evidence prove guilt.

See R vGriffin, 2009 SCC 28, Charron J at para 33; R v Mayuran, 2012 SCC 31, Abella J at para 38; R v Cooper, (SCC),[1978] 1 SCR 860, Laskin CJC (dissenting), 865-866: The time has come to reject the formula in Hodge’s case as an inexorable rule of law in Canada .... [A] charge in terms of the traditionalformula of required proof beyond a reasonable doubt is the safest as well as the simplest way to bring a lay jury to the appreciation of theburden of proof resting on the Crown in a criminal case. [20] Another perspective, though, turns on a distinction between the purposes of an instruction on reasonable doubt and aninstruction concerning circumstantial evidence.

Professor Benjamin Berger pointed out in “The Rule in Hodge’s Case: Rumours of itsDeath are Greatly Exaggerated” (2005), 84 Canadian Bar Review 47 at 60, 61 that the Crown’s case being proved beyond a reasonabledoubt describes an end-state, a state of mind, a state of being sure or sufficiently certain, a state of not having a “reasonable” doubt. [21] True, circumstantial evidence must, along with other evidence, be assessed to determine whether or not this “state of mind” isreached.

The first perspective is not wrong. [22] But the point of a special warning, instruction, or caution about circumstantial evidence arises from nature of the contributionof circumstantial evidence to proof of facts and from risks to fact-finding inherent in the nature of that evidence – or rather, inherent inour use of this sort of evidence. [23] Professor Berger explained that “direct evidence requires only one determination – whether the evidence is to be believed:”“The Rule in Hodge’s Case” at 50.

In R v McEwan & Lee, , [1933] 1 DLR 398 59 CCC 75 (AB SC App Div) at 339(cited to DLR), Justice McGillivray, as he then was, observed respecting direct evidence that “error may arise from mistake oruntruthfulness.” The direct evidence of an eyewitness, for example, still requires assessment in terms of credibility (or sincerity) andreliability, the ability to observe, recall, recount: see R v Morrisey, , 97 CCC (3d) 193 (ON CA), Doherty JA at 205. [24] Circumstantial evidence may be based on witnesses’ observations, and so engage credibility and reliability assessment.

Thedistinguishing feature of this type of evidence, though, is that the observation evidence does not, by itself, implicate the fact-in-issue.Rather, an inference or inferences must be drawn from the evidence. These inferences are for the trier of fact to draw.

As ProfessorBerger puts it in “The Rule in Hodges Case at 50, “[c]ircumstantial evidence, in contrast, adds a second question – even if believed, whatconclusions can be drawn from the evidence?” [25] As Justice Martin (dissenting, but not on this point) observed in R v Calnen, 2019 SCC 6 at para 112, [112] .... to draw inferences, the decision maker relies on logic, common sense, and experience ....

The inferences that may be drawn“must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is soughtto be inferred from the conduct, the parties’ positions, and the totality of the evidence: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534,at para. 77 .... [26] Circumstantial evidence typically supports a range of inferences. Supporting a range of inferences does not mean that theevidence has no probative value.

Generally, the trier of fact decides which inferences it accepts and the weight attributable to thoseinferences: Calnen at para 112. [27] The drawing of inferences by the trier of fact exposes fact-finding based on circumstantial evidence to the risk of errorthrough drawing improper inferences.

Chief Justice McGillivray warned in McEwan at 399 that “[i]n the case of circumstantial evidencethe same chances of error arise [as respecting direct evidence] and there is the additional chance of error in fallacious inference by theCourt.” [28] What lies behind the risk is discomfort with uncertainty, an urge to find certainty, an inclination to come to that “state ofmind” that is the sureness of proof beyond a reasonable doubt.

This may lead, in the case of circumstantial evidence, to concluding that apattern exists that does not or that a pattern exists that, without due consideration, is taken to overshadow other patterns. See R v Osman,2021 ONSC 7328, Roberts J at para 79 (“the human desire to make sense of events with a coherent narrative”). [29] Error may arise from drawing inferences the evidence does not support or by ignoring inferences the evidence does support,particularly inferences that might support an accused’s innocence.

This would be the error of failing even to consider whether thecircumstantial evidence supports reasonable doubts in the form of reasonable inferences running contrary to the Crown’s theory of thecase.

According to Chief Justice McGillivray in McEwan at 399, Proof by circumstantial evidence being a matter of logical reasoning from facts admitted or established in evidence there is always thedanger of the tribunal of fact, whether it be Judge or jury, jumping to conclusions from certain facts without due regard to other factswhich are inconsistent with the hypothesis which the first set of facts seems to point to. [30] This danger of inferential reasoning is the danger of ignoring inferences, of ignoring alternative explanations, of ignoringevidence that is inconsistent with the favoured conclusion or that might falsify the favoured conclusion.

One might describe this as aspecies of confirmation bias (see Daniel Kahneman, Thinking, Fast and Slow (Anchor Canada, 2013) 81) or as a type of “epistemicclosure” (in the popular sense). [31] We reach Justice Cromwell’s warnings in R v Villaroman, 2016 SCC 33. Justice Cromwell wrote as follows at paras 26, 27,and 30: [26] .... There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury mayunconsciously “fill in the blanks” or bridge gaps in the evidence to support the inference that the Crown invites it to draw.

BaronAlderson referred to this risk in Hodge’s Case. He noted the jury may “look for - and often slightly . . . distort the facts” to make them fitthe inference that they are invited to draw: p. 1137. Or, as his remarks are recorded in another report, the danger is that the mind may

“take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of oneconnected whole”: W.

Wills, Wills’ Principles of Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John, dissentingbut not on this point, at p. 813. [27] While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Aldersondescribed - the danger of jumping to unwarranted conclusions in circumstantial cases - remains real .... [30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantialevidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt.

No particular language isrequired. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that suchevidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by tooquickly overlooking reasonable alternative inferences .... [32] The lesson is to let the evidence speak for itself as opposed to imposing a narrative on the evidence. Of course, a trier of factdoes not and could not come to the evidence free from preconceptions.

The trier of fact must rely on ordinary experience and ordinaryjudgments about correlations of facts and the significance of facts to draw inferences or conclusions from the evidence. Otherwise, theevidence would just be what it is and it could prove nothing more. The proper attitude toward the evidence is restraint (not concludingtoo quickly) and openness (so that available inferences are not ignored or dismissed too quickly).

When deciding whether the Crown hasestablished its case on the basis of circumstantial evidence one might bear in mind Chief Justice McGillivray’s words (relevant thoughdirected to appellate review): viewing the evidence as a whole, can it be said that the facts proven from which the Crown asks that the inference of guilt be made, areof such a nature and so related to each other as to “lead the guarded discretion of a reasonable and just man to the conclusion” of guilt andto no other conclusion. Loveden v. Loveden, 2 Hag.

Con. 1, 161 E.R. 648. [33] As for the need to consider “reasonable alternative inferences,” Justice Cromwell cautioned in Villaroman at para 37 that [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35 ....

The alternative inferences, possibilities, or theories must be reasonable: [37] .... I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not needto “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of theaccused”: R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities”must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

At para 42, Justice Cromwell clarified this point with a reference to R v Dipnarine, 2014 ABCA 328 at paras 22, 24-25: [22] Circumstantial evidence does not have to totally exclude other conceivable inferences .... [24] Alternative inferences must be reasonable and rational, not just possible .... [25] But the logic of the circumstantial evidence analysis is that if a trier of fact considers a postulated alternative

interpretation of thecircumstances taken as a whole to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative just becauseit is impossible to exclude it entirely. The law does not require such proof to absolute certainty .... See also R v Tetreault, 2018 ABCA 397 at para 32; R v Cabrera, 2016 ABQB 707, affd sub nom.

R v Shlah, 2019 SCC 56, Fraser CJAat paras 162, 185 (CA). [34] Justice Moldaver’s warning to avoid unreasonable possibilities is, as the last line of para 37 of Villaroman indicates, awarning to avoid “speculation.” “Reasonable alternative inferences” are not “speculative.” The terms “speculation” and “speculative”have a variety of meanings (see, e.g., the Oxford English Dictionary entry for “speculation”).

In the present context, these terms denoteconjecture, surmise, or guess, mere possibility as opposed to reasonable possibility (anything, after all, is possible). [35] Providing a definition of “speculation” or set of criteria that distinguishes “speculation” from a reasonable inference isdifficult. Regrettably, there is no bright line test. Both speculations and reasonable inferences concern possible factual conclusions fromevidence. What separates them, perhaps most simply, is the reasonableness of the inference, from the standpoint of common sense andordinary rationality.

The distinction is normative, as the modifier “reasonable” suggests.

Whether a proposed inference is or is notreasonable depends on (e.g.) • the evidence (or lack of evidence) claimed to support the inference, including the nature or scope and reliability of the supportingevidence (see R v Farnsworth, 2017 ABCA 358 at para 9) • the relationship of the supporting evidence to the claimed inference (“given this, we may infer that”), keeping in mind that aninference need not be based on “proven fact” (Villaroman at para 35) • the relationship of the claimed inference to other evidence and other reasonable inferences arising from the evidence; whether ornot inferences are drawn must “accord with common sense, intuitive notions of probability and the unlikelihood of coincidence” (R vHandy, 2002 SCC 56, Binnie J at para 42) • whether any assumptions of fact, themselves not supported by evidence, must be relied on to draw the claimed inferences

• the degree of complexity or coincidence required for the inference to be viable, keeping in mind that o human events may occur at intersections of coincidence – life may be surprising o reasonable inferences need not be the simplest or most easily drawn – “To hold otherwise would lead to the untenable conclusion thata difficult inference could never be reasonable and logical:” R v Katwaru (sub nom. R v RK, , 153 CCC (3d) 433(ON CA), Moldaver JA, as he then was, at para 40 .

See Villaroman at paras 38-41, 43; R v Munoz, , 205 CCC (3d) 70 (ON SC), Ducharme J at paras 23-31 ; R vChanmany, 2016 ONCA 576 at para 45; Megaro v Insurance Corporation of British Columbia, 2020 BCCA 273, Saunders JA at para30. [36] Justice Pomerance warned in R v Wuschenny, 2018 ONSC 6765 at para 77 that the improbability of coincidence (itself abasis for circumstantial inference) of two or more items of unreliable evidence cannot transform unreliability into proof beyond areasonable doubt: [77] Logically, one piece of unreliable evidence cannot lend cogency to another piece of unreliable evidence.

To hold otherwisewould be to allow the most dangerous form of bootstrapping. Where evidence is of some probative value, it can combine with otherevidence of probative value and cumulatively amount to proof. When the evidence has been determined to be unreliable (as is the photolineup) or irrelevant (as is the accused’s semen on a T-shirt not shown to be connected to the crime), there is no utility in combining it. Ifevidence is unreliable or irrelevant it is of no probative value. Zero plus zero equals zero. In the worst case scenario, the equation mightyield something other than zero.

It might prompt an erroneous conviction. [37] Finally, in a circumstantial case, as in any case, the evidence must be considered as a whole. In circumstantial cases, thewhole may be greater than the parts. The interaction between the elements of the case and the sheer improbabilities associated with theco-existence of the elements of the case with the innocence of the accused must be considered. See R v Uhrig, 2012 ONCA 470 at para13. The probative pull of a circumstantial case is that the co-existence and interaction of facts pointing towards guilt defies exculpatoryexplanation: see McEwan at 404.

To borrow a phrase from similar fact assessments, which concern a type of circumstantial evidence,the issue is whether accounting for the concatenation of indications of guilt by coincidence would “be an affront to common sense:”Handy at para 41, referring to R v CBR, (SCC), [1990] 1 SCR 717, Sopinka J (dissenting) at 751; see Handy at paras45, 47, 110. C.

Other Bad Act Evidence [38] I repeat some comments made in a voir dire respecting the admissibility of the Edmonton Remand Centre telephone callrecordings: Some circumstantial evidence, including particularly the ERC Recordings, might be considered to be bad character evidencerelating to Mr. Hermkens, in that the calls show that he was involved in illegal activities such as drug trafficking and trafficking infirearms. I offer three comments. [39] First, the evidence of drug trafficking and trafficking in firearms is relevant to the contention that Mr. Hermkens is innocent ofthe murder charge.

A Defence contention is that the evidence supports inferences that Mr. Hermkens was involved in drug and firearmstransactions, but that is all. [40] Second, the evidence relating to Mr. Hermkens’ involvement with drugs and firearms is inextricably intertwined with thecircumstances of Mr. Dumont’s death and the allegations made against Mr. Hermkens. [41] Third, I have not reacted emotionally to the evidence of Mr. Hermkens’ other criminal activities.

To repeat an observationmade 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 thecriminal justice system. I confirm that I shall not infer from Mr. Hermkens’ general character or disposition that he is likely to havecommitted the offence charged and I shall not to seek to punish Mr. Hermkens for past misconduct. D.

After-the-Fact Evidence [42] Justice Martin described “after-the-fact” evidence as follows in Calnen at para 106: [106] After-the-fact conduct encompasses what the accused both said and did after the offence charged in the indictment was allegedlycommitted.

It covers a large range of possible circumstances, and its content and contours are confined only by the limits of humanexperience .... [43] Like other evidence, to be admissible, after-the-fact evidence must be relevant, its admission cannot violate any exclusionaryevidential rule, and its probative value must exceed its prejudicial effect: Calnen at para 107-110. [44] After-the-fact evidence is a type of circumstantial evidence. [45] Justice Martin warned at para 113 of Calnen that counsel and trial judges should [113] .... specifically define the issue, purpose, and use for which such evidence is tendered and ... articulate the reasonable and rationalinferences which might be drawn from it.

This often requires counsel and the court to expressly set out the chain of reasoning thatsupports the relevance and materiality of such evidence for its intended use .... See also para 115. [46] In addition, Justice Martin warned at para 116 that after-the-fact evidence may pose some “unique reasoning risks,”

[116] .... [carrying] with it a temporal element that may make it more difficult to draw an appropriate inference. This evidence may also appear more probative than it is, it may be inaccurate, and it may encourage speculation. After-the-fact conduct evidence may thus give rise to imprecise reasoning and may encourage decision makers to jump to questionable conclusions. To manage these risks, a trier of fact should “take into account alternative explanations for the accused’s behaviour:” at para 117.

Some types of after-the-fact conduct evidence may also require limiting instructions or self-instructions to counter specific reasoning risks: at para 118. [ 47 ] It was on this last point that Justice Moldaver, for the majority in Calnen , differed with Justice Martin. Justice Moldaver disagreed with Justice Martin on the issue of whether, with respect to the particular after-the-fact conduct evidence in all the circumstances of the case, it was essential for the trial judge to have given a limiting instruction respecting general propensity reasoning.

Justice Moldaver acknowledged that the trial judge might have given this instruction, but there was no requirement to do so and the failure to do so, in all the circumstances, was not reversible error: at para 5. [ 48 ] Nonetheless, a worthwhile caution to bear in mind is that after-the-fact evidence, as much as before-the-fact evidence, may engage the bad character rules and improper propensity reasoning, warranting an appropriate limiting instruction or self-instruction. [ 49 ] Justice Martin confirmed that after-the-fact conduct evidence may be relevant to determine intent and may be used to distinguish levels of culpability.

Whether the evidence has this probative value depends on the specific evidence considered in the context of a specific case, on the record as a whole given the issues at trial: at paras 119, 138, 139. [ 50 ] Factors important to the inferential link between the evidence and a fact-at-issue such as intention include what was done, when it occurred, and the risks to the accused associated with the conduct: at para 146.

The “proportionality” of what was done may be relevant in the assessment of an inference (such as an accused’s explanation for some after-the-fact activity): at para 149, 126. [ 51 ] Justice Martin pointed out that there is no requirement for after-the-fact conduct inferences to be confirmed, supported, or corroborated by other evidence before inferences may be drawn from the evidence: at paras 132, 133, 138.

Justice Martin stated that at para 132 that It is not the law that an offence must be separately established before after-the-fact conduct evidence can be used by the trier of fact to determine an accused’s intent; after-the-fact conduct evidence is not merely complementary evidence. [ 52 ] As is true of circumstantial evidence generally, the possibility of multiple inferences being founded on the evidence does not deprive it of relevance or probative value.

Justice Martin said at para 124 of Calnen that “[t]his Court has never said that every time multiple possible explanations for conduct are proposed, they become ‘equally probable’ and the evidence in question therefore loses relevance (because it does not make any fact more or less likely);” and at para 144, “the mere existence of two or more plausible explanations for given after-the-fact conduct does not make that conduct equally consistent with those explanations such that a proffered inference may lose its probative force.” Given competing or alternative inferences, the ordinary rule is that the trier of fact decides the inference to be drawn from the evidence.

See Calnen at paras 134, 145 . II. Sources of Evidence A. Agreed Statements of Facts [ 53 ] The Crown relied on five Agreed Statements of Facts (ASF), identified by ASF number and paragraph number. [ 54 ] The continuity of exhibits was admitted: ASF1.12-14. [ 55 ] There was no challenge to the investigation, preservation, or containment of crime scenes relating to Mr. Dumont’s murder: ASF1.12; ASF3.1-3. [ 56 ] All photographs and videos taken by members of the RCMP during the investigation of the offence were admitted as true and accurate depictions of the items photographed or videotaped: ASF1.19, ASF3.6.

A book of photographs of the shooting scene, vehicles, and seized items was admitted without objection (Ex 6). [ 57 ] The autopsy report and qualifications of Dr. Thambirajah Balachandra, Assistant Chief Medical Examiner, Office of the Chief Medical Examiner of Alberta, were admitted: ASF1.9-11. B. Door Bell Camera Videos [ 58 ] Video recordings made by the doorbell video camera of Jody Neil, a neighbour of Chelsey Hart (Ex 9), and by Ms.

Hart’s doorbell video camera (Ex 19) were admitted by agreement: ASF1.20; ASF3.9, 10. [ 59 ] No issues were raised under ss. 31.1-31.8 of the Canada Evidence Act (CEA) respecting this evidence. C. Cellphone Records 1. Samsung S7, Phone Number 8894 [ 60 ] A print-out of Telus Communications call records for the phone number ending 8894 was admitted as an exhibit (Ex 15)

without objection. [ 61 ] Print-outs of extraction reports for this phone, concerning call logs and SMS (text) messages (Ex 16), and contact logs (Ex 17), were admitted as exhibits without objection. 2.

Bell Canada Subscriber, Phone Number 4885 [ 62 ] A print-out of Bell Canada call records for the phone number ending 4885 was admitted as an exhibit (Ex 14) without objection. [ 63 ] A print-out of Bell Canada billing records for the phone number ending 4885 and cell towers utilized by that number (including information about the cell towers) was admitted as an exhibit (Ex 23) without objection. [ 64 ] Anne Desjarlais’ Data Analysis Report (DR) contained print-outs of a series of analyses of communications by Bell Canada subscriber 4885. Her report was admitted as an exhibit without objection. 3.

CEA ss. 31.1-31.8 [ 65 ] No concerns about the cellphone records were raised under CEA ss. 31.1-31.8. [ 66 ] Mr. Moran was the subscriber for the 8894 phone number. Exhibits 15, 16, and 17 were records of communications involving that phone number. The data were recorded and stored in the usual and ordinary course of business by Telus. The “presumption of integrity” was satisfied (CEA s. 31.3(c)). [ 67 ] Mr. Hermkens was not the subscriber for phone number 4885 and he did not admit to having used the phone number. The records, though, were records of communications involving that phone number.

The data in Ex 14 and Ex 23 were recorded and stored in the usual and ordinary course of business by Bell Canada. Again, the presumption of integrity was satisfied. The data referred to in Ex 18 were accurate reproductions of Bell Canada data. There was sufficient evidence of authentication to warrant consideration of the 4885 evidence in trial, but whether, in light of all the evidence, Mr. Hermkens was in fact the user of that number was a live and important issue in the case. D. ERC Recorded Phone Calls [ 68 ] Mr.

Hermkens made phone calls from the Edmonton Remand Centre to a variety of parties (the ERC Recordings). [ 69 ] The ERC Recordings provide important evidence for both the Crown and Defence. Calls or portions of calls could be used to support inferences urged by the Crown or the Defence. The ERC Recordings are evidence “at large.” [ 70 ] The ERC Recordings transcripts were collected in a bound exhibit (11), separated by tabs. Specific citations will be by tab and line numbers. 1. Voir Dire [ 71 ] A voir dire was held respecting the admissibility of the ERC Recordings.

The admissibility determinations turned solely on whether particular conversations were relevant. I found that some parts of the ERC Recordings were irrelevant. The remainder of the ERC Recordings were admitted. 2. CEA ss. 31.1-31.8 [ 72 ] No issues were raised relating to authentication of the ERC Recordings or the best evidence rule under ss. 31.1 and 31.2 of the CEA 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. The statutory authentication and the best evidence rules were satisfied. 3. Aspects of the ERC Recordings [ 73 ] 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:” R v Schneider , 2021 BCCA 41 , Goepel JA at para 162. [ 74 ] The recordings were played in court. For the most part, the recordings were intelligible.

The accuracy of the recordings of the calls and the transcriptions of the recorded calls were admitted: ASF1.23, ASF4.1. Minor errors in the transcriptions were identified. There was no issue of “failing to recall” actual words or the substance of words: Schneider , Goepel JA at para 177 . [ 75 ] 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 were introduced with irrelevant portions already redacted.

Typically, elements of conversation preceding and following the passages in question were present and provided context. [ 76 ] 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 recordings 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 . [ 77 ] I acknowledge that Mr. Hermkens was careful and guarded, often studiously vague, in his recorded conversations. He knew he was being recorded. I draw no inference from his care and guardedness. That is entirely consistent with him having been innocent of the charged offence. Further, I must take care not to impose a single Crown-urged

interpretation on his words. I must remain open to the possibility that any given conversation may support contrary

interpretations, and a conversation may be found, on the basis of all of the evidence, to support Mr. Hermkens’ position, or the conversation may be such that it can support neither the Crown’s nor Mr. Hermkens’ position. Finally, I must take into account that Mr. Hermkens’ conversations were made under time limits, often involved the contemporaneous composition and dictation of messages to third parties, and were informal. [ 78 ] Pertinent passages of the ERC Recordings will be integrated with discussions of the issues. E.

Witnesses [ 79 ] The Crown’s witnesses fell into four groups –expert witnesses, “non-expert analysis” witnesses, independent observation witnesses, and acquaintances of Mr. Dumont, Mr. Moran, or Mr. Hermkens. 1. Expert Witnesses [ 80 ] The expert witnesses were Cpl. Jeremy Buote, Sgt. Jason Hancey, and Mr. Don Calpito. [ 81 ] Cpl.

Buote was qualified as an expert in firearms analysis, specifically the identification and mechanical assessment of firearms, including forensic verification and comparison of firearms; identification and analysis of ammunition and ammunition components; firearm and ammunition testing; and firearms verification and classification: see ASF1.18. [ 82 ] Sgt. Hancey was qualified as an expert in the forensic examination and retrieval of information from computer hard drives, networks, media equipment and cellular telephones using specialized software: ASF1.21. [ 83 ] Mr.

Calpito was qualified without objection as an expert in the collection and retention of cellular telephone records, the

interpretation of cellular telephone records, the location of cellular towers owned or used by Telus Mobility, the general operation of cellular telephone towers including cellular network technology, the coverage radius for cellular telephone towers owned or used by Telus Mobility, factors that affect connectivity between cellular devices and cellular towers, and the manner in which cellular telephones send and receive information from cellular towers. 2. Non-Expert Analysis Witnesses [ 84 ] The witnesses I have referred to as “non-expert analysis witnesses” were now-Sgt.

Jessica Calvert, Julianna Masson and Anne Desjarlais. Ms. Masson and Ms. Desjarlais were non-sworn employees of the RCMP. [ 85 ] These witnesses were not qualified as experts. [ 86 ] Their evidence (in the case of some of Sgt. Calvert, some of her evidence) was in the nature of illustrative evidence. That is, it was not original evidence based on observations made by the witnesses, and not original expert opinion evidence. Rather, it was evidence based on the review of original evidence and third-party opinion relating to the original evidence.

Their evidence summarized, organized, and offered perspectives on that data. Their evidence was the equivalent of diagrams introduced to capture, organize, and summarize original evidence. [ 87 ] In theory, what was addressed in these witnesses’ evidence could have been left for submissions and left for the trier of fact to work out. In practice, these witnesses’ testimony helpfully organized the underlying original data, simplified the trial and diminished analytical burdens for counsel and the trier of fact.

The evidence was useful, keeping in mind that its probative value rested on the probative value of the data underlying the expositions. [ 88 ] I considered the witnesses’ evidence to have no prejudicial effects. These witnesses properly explained the links between their expositions and the original data. The witnesses were careful not to go beyond the proper scope of exposition and the proper scope of inferences from the original data.

The witnesses provided information permitting assessment of the reliability and implications of their evidence, did not rely on unidentified assumptions, and did not skew or mischaracterize data or present data in a misleadingly one-sided manner. Their evidence, far from making the trial more complicated as by (e.g.) requiring collateral inquiries into their methodologies, expedited the trial. [ 89 ] In my opinion, this type of evidence, given its foundations in large quantities of original data (particularly Ms. Desjarlais’ evidence) was properly admitted.

There was no objection to the admissibility of this evidence. 3. Independent Observation Witnesses [ 90 ] The independent observation witnesses were Cst. Jordan Lush and, respecting part of her testimony, Sgt. (then Cpl.) Jessica Calvert, as well as Marcel Impey. 4. Acquaintance Evidence [ 91 ] Mr. Hermkens, Mr. Moran, Mr. Dumont, and numerous Crown witnesses were part of intersecting relationships of individuals residing or doing business in Lloydminster. Many of the parties lived within a few houses of one another and the homicide site. The

“acquaintance witnesses” were, at most, within two degrees of separation from one another. These witnesses were Serena Lastowski,Chelsey Hart, Tiffany Foley, Jesse Graver, and A.B. [92] Ms. Lastowski was the former girl-friend of Mr. Dumont. She continued to speak to him until shortly before his death. Ms.Hart was Mr. Dumont’s girlfriend at the time of his death. Ms. Lastowski testified that she, Ms. Hart, Mr. Dumont, Mr. Dumont’s cousinCandi, and Mr. Dumont’s mother all lived within a block of each other in Lloydminster. Mr. Graver’s testimony was to the same effect.Mr.

Graver was living with Candi at the time of Mr. Dumont’s death. Ms. Hart testified that at around the time of the killing of Mr.Dumont, Steve Thorne lived close, almost next door (more about Mr. Thorne below). Jesse Graver had a child with Candi. His olderbrother was Ms. Hart’s ex-boyfriend. Mr. Graver’s ex-girlfriend, Corree Shortt, was living in Mr. Moran’s apartment, although Mr.Moran’s girlfriend was another individual, Alex. Ms. Foley was an acquaintance of Mr. Moran and Mr. Dumont, and a friend of Candi.A.B. was Mr. Hermkens’ former girlfriend. [93] These witnesses were observation witnesses.

However, their status as witnesses was complicated by additional factors bearingon their credibility and reliability. They were drug users, drug dealers, and associates of drug dealers. Some were under the influence ofdrugs at the times material to their observations. Some were involved in other criminal activity. [94] I’ll review the jurisprudence respecting “Vetrovec” witnesses, the witnesses acknowledged to be Vetrovec witnesses, andwhether the remaining witnesses are Vetrovec witnesses. (

a) Vetrovec Witnesses (

i) Identifying Vetrovec Witnesses [95] Some witnesses warrant special testimonial scrutiny and a special jury or self-caution: Vetrovec v The Queen, (SCC), [1982] 1 SCR 811, Dickson J, as he then was, at 823. On the issue of distinguishing witnesses who do and do not warrant aspecial caution, Justice Dickson wrote in Vetrovec at 823 as follows: Rather than attempting to pigeon-hole a witness into a category and then recite a ritualistic incantation, the trial judge might better directhis mind to the facts of the case, and thoroughly examine all the factors which might impair the worth of a particular witness.

If, in hisjudgment, the credit of the witness is such that the jury should be cautioned, then he may instruct accordingly. If, on the other hand, hebelieves the witness to be trustworthy, then, regardless of whether the witness is technically an “accomplice” no warning is necessary. In R v Khela, 2009 SCC 4 at para 35, Justice Fish quoted an

article by the late Justice Rosenberg (written pre-appointment): The judge should first in an objective way determine whether there is a reason to suspect the credibility of the witness according to thetraditional means by which such determinations are made .... Factors might include involvement in criminal activities, a motive to lie byreason of connection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accountson other occasions, lies told under oath, and similar considerations ....

Second, the trial judge must assess the importance of the witnessto the Crown’s case .... [T]he more important the witness the greater the duty on the judge to give the caution. At some point, as wherethe witness plays a central role in the proof of guilt, the warning is mandatory.

See also R v Brooks, 2000 SCC 11, Bastarache J at 3; R v Lawrence, 2020 ABCA 268 at paras 25-26. [96] The substance of the caution conveyed to the trier of fact is that it is dangerous to convict on the unconfirmed evidence of thissort of witness, although the trier of fact may do so if satisfied that the evidence is true; and that the trier of fact, in assessing thecredibility and reliability of the witness, should look for independent evidence tending to show that the witness is telling the truth: Khelaat para 37. “We therefore want some other piece of evidence which tends to convince us that he [or she] is telling the truth:” Vetrovec at826; R v Gagnon (2000), (ON CA), 147 CCC (3d) 193 (ON CA) at paras 11, 15 .

When the trier of factconsiders whether to believe all, some, or none of the witness’s evidence, the trier should take into account whether the testimony issupported by other evidence, independent evidence that confirms or corroborates his or her testimony: Khela at para 39; Lawrence atpara 28. [97] “Vetrovec” cautions are not merely for juries:” R v W(N), 2017 NSPC 39, Derrick J, as she then was, at para 99. The “clearand sharp warning” must form part of my self-instruction.

I shall have to consider whether a Vetrovec witness’s evidence, consideredwith all the other evidence in the case, overcomes its “suspicious roots:” R v Youvarajah, 2013 SCC 41, Karakatsanis J at para 63. (ii) Corroborative Evidence [98] 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. [99] 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 the Vetrovec witness’s account – it must be “capable of assuringthe trier of fact that 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 [taintedwitness’s] evidence is true” (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 the Vetrovec witness’s testimony – hence, evidence that is “susceptible of competing

interpretations” could only be neutral and not corroborative ( MacIsaac at paras 38, 42 ; Mohamad at para 154 ). [ 100 ] One Vetrovec witness may corroborate another (if the corroborative evidence is accepted), but “extreme caution” must be taken if there is evidence of collusion between purportedly corroborative Vetrovec witnesses. The risk of collusion does not by itself preclude corroborative effect.

The trier of fact must decide whether the evidence of one witness “restores the trier’s confidence” in the evidence of the other: see Lawrence at paras 31 and 32 ; R v Hornby , 2018 ABCA 377 para 23 . [ 101 ] Some elaborations of these points follow. (iii) Corroboration and the “Relevant Aspects” of a Witness’s Testimony [ 102 ] Vetrovec tells us at 826 that corroborative evidence need not implicate an accused.

Khela tells us at para 53 that “not all evidence” that might be consistent with a tainted witness’s testimony is “capable of providing a level of comfort of confidence required for conviction.” What sort of confirmation reaches the level of corroboration? [ 103 ] Corroborative evidence should function in this way: if the witness is right about this , then the witness is right about that . In Vetrovec at 826, Justice Dickson relied on Wigmore’s reflections on credibility.

Credibility is “an entire thing, not a separable one:” ... whatever restores our trust in him personally restores it as a whole; if we find that he is desiring and intending to tell a true story, we shall believe one part of his story as well as another; whenever, then, by any means, that trust is restored, our object is accomplished, and it cannot matter whether the efficient circumstance related to the accused’s identity or to any other matter. The important thing is, not how our trust is restored, but whether it is restored at all [Vol.

VII, para. 2059, at p. 424]. [ 104 ] Justice Dickson referred to corroborative evidence as supporting a tainted witness’s account relating to a “vital issue” or relating to a “material particular,” rendering the witness’s testimony “credible as a whole:” Vetrovec at 827. Justice Fish wrote 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 the jury 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 truth regarding the participation of Vetrovec and Gaja.

It rebuts any suggestion that he is falsely implicating innocent individuals . [Emphasis added; p. 833.] [43] This passage was cited with approval in this Court’s unanimous judgment in Kehler , where the Court concluded that confirmatory evidence must be capable of restoring the trier’s faith in relevant aspects of the witness’ account (para. 15). As a matter of logic, where the only issue in dispute is whether the accused committed the offence, the trier of fact must be comforted that the impugned witness is telling the truth in that regard before convicting on the strength of that witness’s testimony.

Justice Fish wrote as follows at para 52: [52] In the context of this case, where allegations of [collaboration] and collusion between the impugned witnesses and others were made, the trial judge’s warning should have better explained the need for confirmatory evidence to be independent and relate to an important and relevant aspect of the impugned testimony . [emphasis added] See also Vetrovec at 828. [ 105 ] If the concern with a Vetrovec witness is about whether the witness was able to make the observations he or she reports (the concern may be about fabrication or unreliability of memory), confirmatory evidence may show that the witness was in a position to make observations of the type reported.

As regards such a concern, corroborative evidence could not include information that a tainted witness could have acquired without having knowledge of the events at issue, such as evidence about an accused that was readily available or that the witness acquired because of a prior relationship with the accused. The tainted witness could know a lot about an accused without having been in a position to know anything about whether an accused committed an offence.

Corroborative evidence should be such that that it supports the finding that the witness knew information that the witness could not have been expected to know unless the witness also knew about the events at issue. (iv) Competing Inferences and Corroboration [ 106 ] With respect to the neutrality point, the Ontario Court of Appeal wrote at para 14 of McFarlane that “If a jury decides that

evidence 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.” [107] 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”). (

b) Acknowledged Vetrovec Witnesses [108] The Crown acknowledged that A.B. and Mr. Graver were Vetrovec witnesses. [109] Jesse Graver was serving a sentence for drug trafficking. He had a criminal record, with convictions for drug-related offences.He was using fentanyl when he made the observations he testified to. His testimony, it shall be seen, would (if accepted) put Mr.Hermkens in Lloydminster shortly before Mr. Dumont was killed and would assist in linking Mr. Hermkens to Mr. Moran.

His testimonyhad some significant importance to the Crown case. [110] There could have been 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 after Mr. Hermkens was arrested. Sheclaims to have helped to prepare the weapons the Crown asserts were linked to Mr. Dumont’s murder. She helped to dispose of evidence.(Setting aside what she did or did not know 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 with methamphetamine at no cost (she had confirmed that she was using methamphetamine but she did “notknow” where the drugs were coming from). In addition, the evidence could support the finding that she had more involvement with Mr.Hermkens’ drug business and with Mr. Hermkens’ activities in late April 2019 than she disclosed in testimony. Her omissions were waysof effacing her responsibility. [111] A.B.’s testimony was central to the Crown’s case against Mr.

Hermkens. [112] A.B. was a former girlfriend of Mr. Hermkens. Mr. Hermkens had a new girlfriend by April 2019. As will be seen, A.B. stillhad contact with Mr. Hermkens in April 2019. [113] Defence Counsel submitted that A.B. was motivated to provide inaccurate testimony about Mr. Hermkens because of anger andjealousy. While there was some evidentiary foundation for these suggestions (Mr. Hermkens had broken up with A.B. for no reasondiscernable to her; Mr.

Hermkens might be interpreted to have flaunted his new relationship before A.B.), A.B. was not cross-examinedrespecting these matters and on any alleged motive to fabricate. There were plenty of reasons to treat A.B. as a Vetrovec witness withoutrelying on these alleged reasons. Her testimony was subject to special scrutiny without reference to these alleged reasons and I have nottaken those alleged reasons into account in assessing her testimony. [114] I shall consider below whether independent properly corroborative evidence supported Mr. Graver’s and A.B.’s testimony. [115] What of Ms. Hart, Ms.

Lastowski, and Ms. Foley? (

c) Other Acquaintance Witnesses [116] Chelsey Hart had been a drug dealer for about a year. She’d worked for Mr. Krysta (to be introduced below). She stopped whenshe began a relationship with Mr. Dumont in 2015. She was a drug user. On the day Mr. Dumont died, she was in methadone treatmentand was smoking meth. [117] Ms. Lastowski was a drug user, who bought drugs from Steve Thorne (again, more below). She assisted Mr. Thorne in his drugtrafficking business by downloading the Wickr app on her phone and allowing him to use her account. He used the Wickr account fordrug trafficking purposes. [118] Ms.

Foley was using crystal meth in April 2019, including the date of Mr. Dumont’s death. She had been a drug dealer. She wasconvicted of a trafficking offence in about 2016. [119] All three of these witnesses were involved in selling drugs, at least (so far as the evidence showed) on a minor scale. All threeused illegal drugs. [120] Ms. Hart’s and Ms. Lastowski’s testimony was important to establish the circumstances that, in the Crown’s estimation, led toMr. Hermkens being recruited to kill Mr. Dumont. To that extent, they had a relatively important role in one part of the Crown’s theory

of the case. Ms. Foley’s testimony was not central to the Crown’s case. [121] On the evidence, • none had any motive to lie or to mislead the Court (there was an absence of proved motive to lie or mislead) – in particular, nonebore any animus towards Mr. Hermkens • none received any benefits for cooperating with the authorities • none had a history of lying to or manipulating the police • none was an accomplice or in any way involved in the commission of the murder of Mr.

Dumont • none tried to minimize her bad conduct. [122] These witnesses’ criminal records were not in evidence. [123] There were no issues relating to these witnesses’ manner of giving testimony that raised any special concerns. There were • no “convenient” memory lapses • no disclosures of new information in the course of trial testimony • no evasive or argumentative testimonial tactics • no prior inconsistent statements (except, perhaps, respecting Ms.

Hart, as will be reviewed below) • no internal inconsistencies in testimony or changes in testimony as questioning proceeded • no inconsistencies between testimony and other evidence or inconsistencies with natural and common-sense probabilities.

See Lawrence at para 26, referring to R v Vallee, 2018 BCSC 892, Dillon J at para 161. [124] On balance, I do not consider these witnesses to be Vetrovec witnesses. [125] Nonetheless, their lifestyles and admitted involvement in criminal activity are relevant to assessing their credibility: R vGonzague (1983), (ON CA), 4 CCC (3d) 505 (ON CA), Martin JA at 510-511; R v Pascal, 2020 ONCA 287, WattJA at para 109. [126] The Crown properly acknowledged that their testimony should be scrutinized carefully.

It will be seen that the testimony ofeach of these witnesses was amply corroborated. [127] I observe that there was no evidence of collusion between Ms. Hart and Ms. Lastowski. They did not get along. Ms. Hartsmashed the windshield of Ms. Lastowski’s car. There was no evidence of collusion among any of the acquaintance witnesses. There wasa form of “contact” issue between Ms. Hart and A.B. that I’ll return to below. III. Participants and Events [128] I will describe some participants in the events surrounding Mr. Dumont’s death. The “acquaintance witnesses” have alreadybeen introduced.

I’ll then describe events preceding, surrounding, and following Mr. Dumont’s death. [129] I’ll confirm factual findings that can be made at this stage of the exposition. Because of the nature of the Crown’scircumstantial case and the need to consider corroboration of some witnesses, and to avoid complication and repetition in the exposition,some factual findings must be deferred. In any event, corroboration is assessed on all the evidence. Some manifest and straightforwardinstances of corroboration can be identified in the course of the exposition, however. A.

Participants [130] None of the information about participants was challenged or was controversial. 1. Ray Dumont [131] I’ll set out perspectives on Mr. Dumont provided by witnesses. (

a) Serena Lastowski’s Perspective [132] Ms. Lastowski had dated Mr. Dumont in 2013-2014, before he dated Ms. Hart. She confirmed that Mr. Dumont dated Ms. Hartuntil he was killed. She had remained on speaking terms with Mr. Dumont and they talked “here and there.” Ms. Lastowski had lastspoken to Mr. Dumont two days before he was killed. [133] Ms. Lastowski said that Mr. Dumont was in and out of jail, for vehicle thefts and drug offences. She said that he sold drugs, buthe did more “robbing people’s drugs than selling.” He was more about “payback.”

(

b) Chelsey Hart’s Perspective [134] Ms. Hart was engaged to Mr. Dumont at the time of his death. They have a son together, who’s now 5. They were living in agroup of townhouses in Lloydminster, known locally as “No Daddy Lane.” A lot of single mothers with children live there. [135] She first met Mr. Dumont in 2014 and they began dating in 2015. He sold her drugs when they began their relationship. [136] Ms. Hart testified that Mr. Dumont sold drugs with Steve Thorne. Mr. Dumont, Mr. Krysta, and Mr. Thorne were “the maindrug bosses in Lloydminster.” [137] Ms. Hart confirmed that Mr.

Dumont was “always in jail.” The last time he was in jail before he was killed was a period of 18months, for an assault on Ms. Hart. When he was released, he was living with Ms. Hart, even though “he wasn’t supposed to” (i.e., livingwith her violated a no-contact condition of release). [138] Mr. Dumont had been released from jail only 4 or 5 days before his death. (

c) Tiffany Foley’s Perspective [139] Tiffany Foley hadn’t spoken to Mr. Dumont for several years before his death. However, when they first met in 2012, theytalked regularly. Both he and Ms. Foley were selling drugs then. (

d) Jesse Graver’s Perspective [140] Mr. Graver said that Mr. Dumont was “kind of like family” to him. He knew that “others had issues” with Mr. Dumont. Lots ofpeople were mad at him. Mr. Dumont had issues with other people. Mr. Dumont did not get along with a lot of people. (

e) Observations respecting Mr. Dumont [141] Mr. Dumont, it appears, was an independent, aggressive, disagreeable, and disputatious figure. However, Ms. Hart testified thatMr. Dumont was done with his lifestyle of drugs and crime. He and Ms. Hart were planning to move to Cold Lake where he had lined upa job. They were waiting for a mobile storage unit to pack up their household goods. [142] I recognize that, in general, the character of the victim of a crime is irrelevant: R v Diu, , 49 OR (3d) 40 atpara 39 ; R v Vant, 2015 ONCA 481 at para 66. However, in this case, Mr.

Dumont’s place in the illegal drug ecosystem inLloydminster was relevant to the background for his death, and more importantly, it was relevant to the Crown’s theory as to why Mr.Dumont was killed. I confirm that Mr. Dumont was entitled to the protection and benefit of the law like anyone else. Nothing about hislifestyle changed that or would in any way support the view that those responsible for his death should not be held legally accountable. 2. Steve Thorne, aka Crazy [143] Ms. Lastowski was a friend of Steve Thorne.

They “used to hang out.” They were never in a “committed relationship” but hadan “on and off” relationship. Mr. Thorne kept some of his things at Ms. Lastowski’s house. She confirmed that Mr. Thorne’s nicknamewas “Crazy,” as did Chelsey Hart, Tiffany Foley, and Jesse Gravers. [144] Ms. Lastowski said that Steve Thorne was a drug dealer. Selling drugs was his only business. He used “runners,” people whoworked for him selling drugs. He sold methamphetamine, cocaine, and heroin. She knew that he smoked heroin, and she bought drugsfrom him. She had seen him dealing.

He sold drugs in Lloydminster and its vicinity, Vermilion, Wainwright, Saskatoon, and OnionLake. [145] Ms. Lastowski said that Mr. Thorne used the Wickr app, an encrypted messaging platform. He’d asked her to download the appto her phone. He then sent messages from his phone using her account. She could read messages, though, on her phone. She did not viewall the messages she did not create. Mr. Thorne used the app for drug sales. [146] Ms. Lastowski said that Mr. Thorne had been staying nearby for about a month before Mr. Dumont was killed. She said thatMr.

Thorne had a residence in or just outside Vermilion, Alberta, “where he’d lay his head.” [147] Mr. Graver confirmed that Mr. Thorne sold drugs, but he didn’t know what kind. [148] Ms. Hart testified that she met Mr. Thorne around 2012. He was a drug dealer in Lloydminster and Vermilion. He sold meth,heroin, cocaine. She didn’t get to know Mr. Thorne better until she and Mr. Dumont started dating. She thought Mr. Thorne and Mr.Dumont were “bros” or friends. They sold drugs together. Mr. Dumont would buy drugs from Mr. Thorne.

When asked whether Mr.Thorne “works alone or has anyone underneath him,” she stated that “lots of people used to sell drugs for him.” She testified that Mr.Thorne got his drugs from “Fiji” in Edmonton. [149] Ms. Hart was able to identify Mr. Thorne’s voice. [150] Tiffany Foley testified that Rick Thorne was Steve Thorne’s father. Ms. Hart confirmed this as well. 3. Jason Krysta, aka Little J [151] Ms. Lastowski knew Jason Krysta. His nickname was “Little J.” He was a friend of Mr. Thorne. They were “always friends.”

[ 152 ] Ms. Hart confirmed that Mr. Krysta was a drug dealer in Lloydminster. She used to sell drugs for him in Lloydminster. 4. Mark Moran [ 153 ] Tiffany Foley knew of Mr. Moran, but didn’t know him personally. In 2019, Mr. Moran had a girlfriend named Alex. Ms. Foley didn’t know her last name. She had never seen Mr. Moran consume drugs but she did see him in possession of drugs. Ms. Foley knew Cam Gratton, who also knew Mr. Moran. Her relationship with Mr. Moran was through Mr. Gratton. [ 154 ] Ms. Foley did know that Mr. Moran was involved in the drug trade in Lloydminster. [ 155 ] Ms. Hart testified that Mr.

Moran sold drugs for Steve Thorne. She testified that she bought fentanyl from Mr. Moran multiple times. [ 156 ] Mr. Graver had “grown up” with Mr. Moran. He got to know him well in the year before Mr. Dumont’s death. Around the time of Mr. Dumont’s death, he would hang out with Mr. Moran, once or twice a week, to use drugs. Mr. Moran, to Mr. Graver’s knowledge, was living with Mr. Graver’s ex-girlfriend Corree Shortt (Ms. Lastowski testified that Ms. Shortt was also Mr. Thorne’s former girlfriend.) [ 157 ] Mr. Graver confirmed that Mr. Moran and Cam Gratton were friends.

The three of them had hung out together. [ 158 ] Mr. Graver testified that Mr. Moran and Mr. Dumont were friends. [ 159 ] When asked about the relationship of Mr. Moran and Mr. Dumont at the time of Mr. Dumont’s death, Ms. Hart said it was good. However, in cross-examination, Ms. Hart confirmed that Mr. Moran and Mr. Dumont once had a physical fight. 5. Heather Hermkens [ 160 ] Heather Hermkens (aka Lolly) is Mr. Hermkens’ sister. Between April 2 and April 28, 2019, her telephone number was (xxx) xxx-2674: ASF1.24. 6. Janet Fayant [ 161 ] Janet Fayant is Mr. Hermkens’ mother.

Between April 8, 2019 and April 28, 2019, her telephone number was (xxx) xxx-1963: ASF1.25. 7. Lucy Hirayama [ 162 ] Lucy Hirayama (aka L or Lala) was in a relationship with Mr. Hermkens in April 2019. Between April 8 and April 28, 2019, her telephone number was (xxx) xxx-1696: ASF1.26. B. Mr. Hermkens [ 163 ] Mr. Hermkens did not admit to being a “participant” in any manner respecting the death of Mr. Dumont. [ 164 ] Mr. Hermkens did admit, though, that he self-identified as “Cage” (i.e., he used the nickname “Cage”) and was called “Cage” by others. Mr.

Hermkens’ photograph was associated with an open source Facebook profile for “BigDawg Cage.” A photograph of the profile page and profile picture were entered as exhibits. The person in the profile picture is Mr. Hermkens: ASF1.2, ASF3.8. [ 165 ] Prior to his arrest, Mr. Hermkens lived in a basement suite in Edmonton. The basement floor was shared with another couple. These individuals played no role in this case. C. Events Preceding April 27, 2019 [ 166 ] I will review events that occurred or were alleged to have occurred before Mr. Dumont was shot. 1. Mr. Dumont and Mr. Krysta and Mr. Thorne (

a) Chelsey Hart [ 167 ] When asked whether Mr. Dumont had any animosity or feuds with anyone between April 18 and April 27, Ms. H

[…]