R v Candaele, 2021 ABQB 332

Court of Queen’s Bench of Alberta Citation: R v Candaele, 2021 ABQB 332 Date: 20210707 Docket: 200180834Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Ronald John Candaele Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.B. Nixon _______________________________________________________ I. Introduction . 3 II. General Principles . 4 A. Proof Beyond a Reasonable Doubt 4 B. The Accused’s Evidence . 5

C. Circumstantial Evidence . 8 III. The Offence . 10 IV. Matters Not in Issue . 12 V. Legal Issues . 12 VI. The Evidence . 13 A. Preliminary Comments: Credibility and Reliability . 13 B. Agreed Statement of Facts . 14 C. Overview of the Evidence . 14 D. Crown Witnesses . 16 1. Lay Witnesses . 16 a. Cst Aaron Douglas Bridge . 16 b. Shyanne Maree Hilson . 16 c. David John Samuelson . 17 d. Jeremy Christopher Loewen . 18 e. Cst Jefferey Black . 19 f. Cst Danielle Anne Louisa Petersen . 21 g. Robert Jonathan Cloherty . 22 h. Terry LaChance . 24 i. Katelyn Muriel Gillies . 25 j. Ian Gillies . 26 k. Allan Gagne . 27 l.

Justin Donald Neufeld . 28 m. Mark James Ruggieri 28 n. Cst James Weeks . 31 o. David Nick Parker 32 p. Cst Kevin William Roland Spear 33 q. Harshita Sharma . 34 r. Eileen Isabella Saunders . 35 s. Madison Mandryk . 37 t. Jonathan Maurice Shevalier 37 u. Cst Jefferey Black . 39 v. Det Christina Witt 40 w. Det Reynold Bangloy . 43 2. Expert Witness . 44 a. Dr. Eric Gerald Bol 44 VII. Analysis . 46 A. Incident Context – The Timeframe . 46 B. Second Degree Murder and W(D) 47

C. Mr. Candaele . 48 1. General Comments . 48 2. Conduct After Incident 49 a. Petro-Can CCTV .. 49 b. McDonald’s CCTV .. 49 c. 7-Eleven CCTV .. 49 d. Checker Cab . 49 e. Safeway CCTV (11:57 hours) 49 3. Statements of Mr. Candaele . 49 a. Probation Officer Dialogues . 49 b. Mandryk 911 Call 50 c. Arrest Dialogue . 50 d. Interview Dialogue . 50 D. Applying the Law to the Facts . 51 1. Second-Degree Murder 51 a. Did Mr. Candaele cause Ms. Blommaert’s death? . 52 i. Primary Issue – Cause of Death? . 52 ii. Alternative Argument – Accident Asserted . 53 b. Did Mr. Candaele Cause Ms.

Blommaert’s Death by Means of an Unlawful Act? . 56 c. Did Mr. Candaele have the state of mind required for murder? . 57 2. Manslaughter 60 VIII. Conclusion . 60 I. Introduction [ 1 ] This trial concerns the death of Melissa Rae Blommaert (“ Ms. Blommaert ” or the “ Deceased ”). [ 2 ] On February 10, 2020, Ms. Blommaert was found on the road shortly after 06:00 hours and transported by ambulance to the Foothills Medical Centre. The individuals who originally found Ms. Blommaert on the road thought she was dead.

However, that determination was not confirmed until the staff at the Foothills Medical Centre declared her dead at 06:55 hours that same morning. II. General Principles [ 3 ] In any criminal trial there are two fundamental principles. First, the accused is presumed to be innocent. He cannot be convicted unless the Crown has proved his guilt beyond a reasonable doubt. Second, the accused does not have to prove anything. [ 4 ] In this case, Mr. Ronald John Candaele (“ Mr. Candaele ” or the “ Accused ”) did not testify.

However, a number of his statements made outside of this trial are in evidence. [ 5 ] I must bear in mind two linked sets of principles. Those concerning proof beyond a reasonable doubt and those concerning the assessment of circumstantial evidence. A. Proof Beyond a Reasonable Doubt [ 6 ] Mr.

Candaele may only be convicted if, on all the evidence in the case, the trier of fact is not left with a doubt as to whether he is guilty of the charged offence: R v Villaroman , 2016 SCC 33 at para 35 [ Villaroman ]. [ 7 ] In a criminal trial, the burden of proof rests entirely upon the Crown, and the standard of proof is beyond a reasonable doubt. This means that Mr. Candaele does not have any obligation to explain inculpatory evidence or to disprove the Crown’s theory as to his guilt.

[8] The onus is always on the Crown to prove, beyond a reasonable doubt, the crime for which an accused has been charged.The Crown must prove each element of the offence to that evidentiary standard. [9] In considering the issue of reasonable doubt, I am guided by the comments of Justice Cory in R v Lifchus, (SCC), [1997] 3 SCR 320 at para 36, which can be summarized as follows: a. the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, thepresumption of innocence; b. the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; c. a reasonable doubt is not a doubt based upon sympathy or prejudice; d. rather, it is based upon reason and common sense; e. it is logically connected to the evidence or absence of evidence; f. it does not involve proof to an absolute certainty; g. it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and h. more is required than proof that the accused is probably guilty – a jury which concludes only that the accused is probably guiltymust acquit.

B. The Accused’s Evidence [10] Defence relies on Mr. Candaele’s out-of-court statements which are in evidence and other evidence that they argue isexculpatory. Specifically, Mr. Candaele disagrees with the position of the Crown that his evidence should not be believed. Mr. Candaelefurther asserts that if I do not believe his evidence, then it at least raises a reasonable doubt. [11] Mr. Candaele further asserts that the evidence necessary to support a finding of second-degree murder is not there. Inparticular, Mr. Candaele asserts that there is no clear-cut evidence that he said “I am going to kill”.

As a result, Mr. Candaele goes on tostate that there is no evidence of an intent to commit murder. [12] These assertions by Mr. Candaele conflict directly with the evidence on which the Crown is relying, and its assertions inrespect thereof. This case, then, is a “W(D)” case: R v W(D), (SCC), [1991] 1 SCR 742 [W(D)]. [13] In R v Ryon, 2019 ABCA 36 [Ryon], Justice Martin recently and helpfully recast the elements of the assessment of thetotality of trial evidence under the reasonable doubt standard [“Modified W(D)”].

I am guided by paras 38, 51-53 of Ryon: [38] It may be helpful to step back and consider the message intended to be delivered. In short, it is that when assessing exculpatoryevidence jurors should understand that they have three choices, not two: they may accept the evidence, they may reject it, or they mayfind themselves unsure whether the evidence is true or false. In other words, there is a “third alternative” to confident acceptance orconfident rejection and if they find themselves in this middle ground that usually means they have a reasonable doubt that must benefitthe accused. In R v.

Edwards, 2012 ONSC 3373 at para 20, Code J. observed: [T]he so-called “second branch” of W(D) … is an “alternative” to complete belief or complete rejection and arises where a trier cannot“resolve the conflicting evidence” and cannot find “exactly where the truth of the matter lay”, as Morden J.A. and Martin J.A. put it inChallice and in Nimchuk. It refers to a state of indecision or uncertainty where the trier is not “able to select one version in preference tothe other”, as Cory J. put it in W.D.S. [...] [51] Then the charge 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 jury believes the accused’s evidence denying guilt (or any other exculpatory evidence to that effect), or if theyare not confident they can accept the Crown’s version of events, they must acquit. [...]

(iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility 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 where applicable, other exculpatory evidence), they may not simply assume the Crown’s version of events must be true.

Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [52] Finally, where there are included offences or multiple charges, the trial judge must ensure the jury understands that a reasonable doubt with regard to one offence will not necessarily entitle the accused to an acquittal on all charges. [53] Like W(D) , the foregoing is not intended to be an incantation that must be included in every trial where there is conflicting evidence to be resolved.

Ultimately, the wording used is not critical so long as the trier is given sufficient information to understand the correct burden and standard of proof to apply: W(

D) at para 30 . See also R v. Kristensen , 2010 ABCA 37 . [ 14 ] In R v Achuil , 2019 ABCA 299 , Justice Martin further clarified his comments in Ryon , noting that the phrase, “not confident they can accept the Crown’s version of events”, is not a legal standard: para 18.

Rather, it may be safer to revert to the wording proposed in R v Gray , 2012 ABCA 51 at para 42 (ii): In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. [This quote from Gray was qualified in Achuil , where Justice Martin added], [a]gain subject to defences with additional elements such as an objective component: Achuil at para 18 . [ 15 ] I note that W(D) (as modified by Ryon and Achuil ) offers a helpful road map, but it is not the only route.

The purpose of W(

D) is to ensure that triers of fact understand that a verdict must not be based on a choice between the evidence of the accused and the Crown, but on whether, based on the whole of the evidence, the trier of fact is left with a reasonable doubt about the accused’s guilt: R v Y(CL) , 2008 SCC 2 at paras 6-8 . [ 16 ] A trial judge is not required to apply the W(

D) formula in a sacrosanct manner in order to properly apply the burden of proof. The order in which a trial judge makes credibility findings of witnesses is inconsequential, provided the principle of reasonable doubt remains the central consideration: R v Vuradin , 2013 SCC 38 at para 21 . [ 17 ] However, to consider the accused’s evidence only after finding that the Crown has proven their case beyond a reasonable doubt, shifts the burden of proof and thus contravenes the principles of W(D) : R v DG , 2019 ABCA 96 . [ 18 ] A related concept flowing from W(

D) is that the trial is not a credibility contest requiring me to decide which story, or version thereof, I believe. I may believe a witness, disbelieve a witness, or be unable to decide. [ 19 ] Justice Blair of the Ontario Court of Appeal specifically discussed the relationship between conflicting evidence and witness credibility in R v B(D) , 2011 ONCA 51 at para 114 : [114] What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses.

They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings.

The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice .

In that event, they must acquit. [ 20 ] Therefore, if I am left with a reasonable doubt on all or any of the elements of the offence, arising from the credibility of witnesses, I must resolve such doubt in the accused’s favour and acquit. [ 21 ] Finally, it is important to recognize that the mere fact that the accused provides evidence does not make it exculpatory, and may not bring the evidence within the purview of W(D) . Justice Larlee, on behalf of the New Brunswick Court of Appeal, addressed this very issue in Morningstar v R , 2017 NBCA 39 at paras 10-12 , and is worth repeating: [10] The context for Mr.

Morningstar’s argument is as follows. Three days after the murder of Baylee Wylie, specifically on December 20 and 22, 2015, Mr. Morningstar provided two voluntary statements to the police. In the statements, he described his involvement in the events leading up to the death, the death itself, and the events subsequent to the death. He made wide-ranging statements about the assaults on Mr. Wylie, the death and the burning of the residence with Mr. Wylie inside. The statements were primarily inculpatory. Mr.

Morningstar argues they were exculpatory with respect to murder, on the basis he stated “I’m not a murderer” and that the statements generally supported the defence of duress. [11] We know the trial judge was alive to the issue of how to analyse Mr. Morningstar’s evidence with respect to a possible W.(D.) instruction because at the pre-charge hearing with the lawyers he discussed it with them regarding both murder and arson.

After a consideration of the context of the statements, the trial judge decided against it; he could not give such a direction with respect to the count of murder, but only for arson. [12] I accept the Crown’s submission there was no conflict of legal consequence in Mr. Morningstar’s evidence such that it alone would support a reasonable doubt on a charge of murder. It cannot be said the statement “I’m not a murderer” is a source of reasonable doubt. Mr.

Morningstar’s statements of belief and opinion that he was not a murderer or that he felt compelled to participate, even if accepted by the jury, could not legally reduce the crime from murder. Said another way, this evidence was not capable of legally

negating intent when all other facts were indicative of murder. Mr. Morningstar explained in his statements that he engaged in the beatings and stabbings of Mr. Wylie, albeit to a lesser extent than the others, and he did not inflict the final blows. This portrayal of a minimization of participation did not constitute evidence which required the trial judge to give a W.(D.) instruction with respect to murder. In other words, even if I were to accept the R. v. B.D. jurisprudence from the Ontario Court of Appeal, this is not a case in which there was opposing evidence on a “vital issue”.

In my view the trial judge made no error in the approach that he took in not giving a W. (D.) instruction to the jury with respect to murder. [ 22 ] That said, a trier of fact may not treat disbelieved exculpatory evidence as positive evidence of guilt unless there is evidence, independent of the fact of falsity itself, that the statement was concocted or deliberately fabricated: R v Selvanayagam , 2011 ONCA 602 at para 27 . C. Circumstantial Evidence [ 23 ] The Crown acknowledged at the outset of its argument that this is a circumstantial case.

When the Crown’s case relies on circumstantial evidence, the rule in R v Hodge , 1838 CanLII 1 (FOREP), 168 ER 1136 [ Hodge’s Case ] provides an elaboration of the reasonable doubt standard: Villaroman at paras 25-26 .

This concern arises from the temptation of triers of fact to use inductive reasoning to draw inferences from unproven facts. [ 24 ] Justice Cromwell, writing for a unanimous Supreme Court of Canada in Villaroman , identified that the use of circumstantial evidence by the trier of fact is about inference drawing, and cautioned against the trier of fact unconsciously filling the blanks, bridging gaps, or jumping to conclusions on the evidence to support the inference that the Crown suggests: paras 26, 29-31. [ 25 ] A “succinct and accurate way” of conveying the proper approach to the drawing of an inference from circumstantial evidence is to instruct the trier of fact that an inference of guilt should be the only reasonable inference that such evidence permits: Villaroman at para 30 . [ 26 ] When assessing circumstantial evidence, the trier of fact should consider other “plausible theories” and “other reasonable possibilities” which are inconsistent with guilt.

However, the Crown need not negate “ever possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”, but rather only reasonable ones. “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: Villaroman at para 37 . [ 27 ] As Justice Cromwell observed at para 42 of Villaroman , the Alberta Court of Appeal has provided a helpful statement of how to draw the line between “plausible theory” and “speculation” in R v Dipnarine , 2014 ABCA 328 at paras 22 , 24-25: [22] Circumstantial evidence does not have to totally exclude other conceivable inferences.

If the trier of fact infers guilt because the alternatives do not raise a doubt in his or her mind, the verdict is not thereby rendered unreasonable, ipso jure . It is still fundamentally for the trier to fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt in the mind[s] of that trier. [...] [24] Alternative inferences must be reasonable and rational, not just possible.... Reasonable doubt can arise from the absence of evidence.

It is not error of law to give effect to such a doubt even if it does not have specific evidence backing it up... [25] But the logic of the circumstantial evidence analysis is that if a trier of fact considers a postulated alternative

interpretation of the circumstances taken as a whole to be unreasonable or irrational, the trier of fact is not bound to give effect to that alternative just because it is impossible to exclude it entirely. The law does not require such proof to absolute certainty... [ 28 ] In R v Soosay , 2020 ABQB 748 at para 20 , Justice Renke provided further additional guidance in relation to Justice Cromwell’s warning to avoid “speculation”: [20] ... Providing a definition of “speculation” or set of criteria that distinguishes “speculation” from a reasonable inference is difficult.

Both speculations and reasonable inferences concern possible factual conclusions from evidence. What separates them, perhaps most simply, is the reasonableness of the inference, from the standpoint of common sense and ordinary rationality.

Whether a proposed inference is or is not reasonable depends on (e.g.) • the evidence (or lack of evidence) claimed to support the inference, including the nature or scope and reliability of the supporting evidence • the relationship of the supporting evidence to the claimed inference (“given this, we may infer that,” keeping in mind that an inference 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 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 that a difficult inference could never be reasonable and logical:” ...

[29] On the other hand, the rule in Hodge’s Case does not apply to an inference of intention.

Therefore, the mere possibility thatthe accused could have lacked intent to kill is not sufficient to have precluded the trier of fact from relying on the “common-sense”inference of intent: R v Walle, 2010 ABCA 384 at para 12, affirmed in 2012 SCC 41; see also R v Mitchell, (SCC),[1964] SCR 471 at 479-480; R v Cooper, (SCC), [1978] 1 SCR 860 at 874. [30] Throughout this decision, when I have drawn inferences from the proven evidence, I have drawn those inferences in carefulconsideration of those principles and cautions provided by Justice Cromwell in Villaroman. [31] I have also drawn inferences with an awareness that the reasoning process of finding inferential facts is based upon inductivereasoning, albeit always being cautious of its weaknesses when it is not carefully regulated: see David M Tanovich, Regulating InductiveReasoning in Sexual Assault Cases, 2017 CanLIIDocs 4027 at 75.

For my purposes, while unnecessary to expound on the differencesbetween inductive and deductive reasoning, I note the following comments made by Justice Labrenz in R v Crier, 2020 ABQB 20 atparas 26-27: [26] ... it is enough for me to state that inductive logic involves making broad generalizations from specific observations. Deductivereasoning, on the other hand, involves testing a general theory or hypothesis by examining the underlying premises. [27] Conclusions reached by deductive reasoning are always certain if the underlying premises are true.

On the other hand, thedecision maker or the trier of fact must exercise care with inductive reasoning, which offers predictions as to human behaviour basedupon probabilities drawn from shared experience.

Specifically, the trier of fact must take care to ensure that generalized conclusionsconcerning human behaviour apply specifically (with allowance for individual variance, culture, or other differences borne of socialcontext), and that the resort to logic, human experience, and common sense is not a ready invitation to substitute critical thought withgeneralizations or upon other matters that were not in the evidence (stereotyping). [32] Finally, in a circumstantial case, as in any case, I must consider the evidence as a whole and not piecemealed portions indetermining whether the Crown has proved its case beyond a reasonable doubt: R v Morin, (SCC), [1988] 2 SCR 345.

III. The Offence [33] The formal charge reads as follows: RONALD JOHN CANDAELE stands charged: 1. That he, on or about the 10th day of February, 2020, at or near Calgary, Alberta, did unlawfully cause the death of Melissa RaeBlommaert, thereby committing second degree murder, contrary to Section 235(1) of the Criminal Code of Canada. [34] This case focuses on this single count. By way of further background, the relevant Criminal Code provisions are as follows: a. Section 222(1) a person commits homicide when he causes the death of a human being by any means, whether directly orindirectly. b.

Section 222(2) homicide is either culpable or non-culpable, and under s. 222(4) both murder and manslaughter constitute culpablehomicide. c. Section 222(5)(

a) a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. d. Section 222(5)(

b) a person commits culpable homicide when he causes the death of a human being by means of criminalnegligence. e.

Section 229 culpable homicide is murder: a. where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause death, and is reckless whether death ensues or not. f. Section 231(1) murder is first degree murder or second degree murder. g. Section 231(7) all murder that is not first degree murder is second degree murder. h.

Section 234 culpable homicide that is not murder or infanticide is manslaughter. i. Section 235(1) every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall besentenced to imprisonment for life. [35] The Crown must establish, beyond a reasonable doubt, the actus reus of murder – that is, the accused was a significantcontributing cause of the victim’s death: R v Nette, 2011 SCC 78 at paras 71-72. [36] The Crown must also establish the necessary mens rea. Under s. 229(

a) of the Criminal Code, the crime of murder requiresproof that an accused person possesses a specific state of mind, also known as specific intent. [37] For culpable homicide to constitute murder, the burden is on the Crown to prove, beyond a reasonable doubt, one of two

possible states of mind on the part of an accused. The Crown must prove either that the accused intended to cause the death of thedeceased or that the accused intended to cause the deceased bodily harm, which he knew was likely to cause his death and was recklesswhether death ensued or not. [38] Recently, the Alberta Court of Appeal stated in R v Newborn, 2020 ABCA 120 at para 66: [66] Murder is classified as a specific intent offence. The intent cannot be inferred merely from the fact of the killing.

Thesignificance of this classification is that where a person is unable to form the specific intent required to commit the offence of murder,then the offence is not proven beyond a reasonable doubt and the accused is guilty of manslaughter. That is, manslaughter does notrequire murderous intent: R. v. Sarrazin, 2011 SCC 54 (S.C.C.) at para 18. Manslaughter requires objective foresight of the risk of bodilyharm which is neither trivial nor transitory; foreseeability of the risk of death is not required: R. v. Creighton, (SCC),[1993] 3 S.C.R. 3, 83 C.C.C. (3d) 346 (S.C.C.); R. v.

DeSousa, (SCC), [1992] 2 S.C.R. 944, 9 O.R. (3d) 544 (S.C.C.). [39] To meet this burden, the Crown need not prove both states of mind or intentions. One is sufficient. If Mr. Candaele did notmean to do either, he committed manslaughter. IV. Matters Not in Issue [40] Mr. Candaele admitted several facts pursuant to

Section 655 of the Criminal Code for the express purpose of dispensing withformal proof. [41] The concessions made by Mr. Candaele in the Agreed Statement of Facts, established the following elements beyond areasonable doubt: a. the identity of the Accused, which is Mr. Candaele; b. the date on which the death occurred, which is February 10, 2020; c. the identity of the deceased, being Ms. Blommaert; and d. the jurisdiction in which the death occurred, which is Calgary, Alberta. [42] Notwithstanding Mr.

Candaele's concessions, I note the supporting particulars for the record. [43] The individual before the Court identified as Ronald John Candaele is the same individual named as the Accused in theIndictment. To this extent, the identity of the Accused is not in issue. [44] Ms. Blommaert is the deceased identified in Count 1 of these proceedings. She was born on February 9, 1987 and died onFebruary 10, 2020, in Calgary, Alberta, at the age of 33. [45] On the day of the events in question, being February 10, 2020, Mr. Candaele and Ms. Blommaert were together in the U-Haultruck (the “U-Haul Vehicle”).

They were the only people present in that vehicle. [46] In relation to identification, Mr. Candaele admits in the Agreed Statement of Facts that he was the driver of the U-HaulVehicle on the early morning of February 10, 2020. V. Legal Issues [47] Broadly speaking, the outstanding issues that I must decide are as follows: a. Did Mr. Candaele murder Ms. Blommaert? Specifically, and framed as questions, has the Crown proven the following essentialelements beyond a reasonable doubt: i. Did Mr. Candaele cause Ms. Blommaert’s death? ii. Did Mr. Candaele cause Ms. Blommaert’s death unlawfully? iii. If so, did Mr.

Candaele have the state of mind required for murder? b. If the Crown fails to prove that Mr. Candaele murdered Ms. Blommaert, has the Crown proven that Mr. Candaele committedculpable homicide because of an unlawful act? VI. The Evidence

A. Preliminary Comments: Credibility and Reliability [48] As with any hearing in this Court, the facts are the most important aspect of the case. The rules of evidence control the factsthat come before the Court: see Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) atpara 1.1 [Sopinka].

In this case, the findings turn on the facts in evidence, including the Exhibits that were entered into the trial proper,certain fundamental principles in law, and common sense. [49] In every trial, the trier of fact needs to assess the evidence by reference to credibility, reliability and weight. [50] The term “credibility” tends to be used to describe the honesty of the witness, or the witness’s readiness to offer truthfultestimony: D(

S) v Ontario (Criminal Injuries Compensation Board), 2010 ONSC 2562 at para 13; see also R v Norman, (ONCA), [1993] OJ No 2802 (ONCA). [51] As the trier of fact, it is up to me to decide whether a particular witness is telling the truth and to determine the appropriateweight to place on the evidence: R v Thain, 2009 ONCA 223 at para 32.

If a witness is of bad character, there is an indication that thewitness is tarnished, or the testimony of a witness is inconsistent, I will reduce the weight which I assign to his or her evidence.Similarly, if a witness is particularly motivated to help one side, demonstrates credibility challenges by offering inconsistent orinherently unlikely testimony, or is unable to respond to appropriate questions during cross-examination, I will reduce the weight that Iassign to his or her evidence. [52] The concept of reliability recognizes that even an honest witness can be mistaken.

Testimony may be “unreliable” because thewitness had a poor opportunity to observe the factor about which he or she is testifying, and, therefore, could be mistaken. [53] A few examples illustrate reliability concerns: (

i) a witness may not understand what they observed or may not rememberaccurately what was observed; (ii) a witness may not be able to communicate observations accurately because of poor communicativeabilities or language problems; (iii) a witness may allege a particular element poorly in the testimony in circumstances where thatelement is not adequately clarified by counsel; and (iv) a witness may not realize that the foundation underlying their evidence is not wellgrounded. Ultimately, the less reliable the evidence, the less weight I will give it. [54] Even if I believe the evidence, I may determine that it is of more or less importance. Some evidence is enormouslyinformative because: (

i) it addresses an issue of importance in the case; and (ii) it is cogent because it strongly supports the conclusionsdrawn from it. [55] It is important to note that the law of evidence tends to address admissibility. In contrast, the evaluation or weighing ofevidence is typically left to my common sense. I apply that common sense in my capacity as the trier of fact. [56] I will discuss the credibility and reliability of the witnesses in my review of the evidence given and in my analysis.Concerning Mr.

Candaele, I will discuss his credibility and reliability as I review the various statements that he made, and which are inevidence. B. Agreed Statement of Facts [57] On December 1, 2019, the Accused and Ms. Blommaert were married in Calgary, Alberta. They remained married until thedeath of Ms. Blommaert on February 10, 2020. [58] Ms. Abby Pohran resides 8039 34 Avenue NW. She was alone at home on the night of February 9, 2020. Her husband, Mr.Chris Pohran was not at 8039 34 Avenue NW that night, and was staying at the Mustard Seed Shelter in Calgary, Alberta (the “MustardSeed Facility”). In particular, Mr.

Chris Pohran was at that the Mustard Seed Facility from 16:23 hours on February 9, 2020 to 07:25hours on February 10, 2020. [59] The U-Haul Vehicle was rented by Ms. Blommaert on February 2, 2020, and it was in her possession until February 10, 2020. [60] On the evening of February 9, 2020, Ms. Blommaert and Mr. Candaele had loaded all of their property into the U-HaulVehicle because they had recently been evicted from their apartment. As a result, all of the material possessions of Ms. Blommaert werelocated in the back-storage portion of the U-Haul Vehicle. [61] As noted above in relation to identification, Mr.

Candaele was the driver of the U-Haul Vehicle on the early morning ofFebruary 10, 2020. [62] At 11:57 hours on February 10, 2020, Mr. Candaele parked the U-Haul Vehicle in the Safeway parking lot located at 8120Beddington Boulevard NW and left the area. The U-Haul Vehicle remained at this location until police arrived and took continuity of theU-Haul Vehicle. [63] Mr. Gurmeet Sra is employed as a taxicab driver for Checker Yellow Cabs. Mr. Sra was dispatched to pick up Mr. Candaeleat 6512 Bowness Road NW on February 10, 2020. Mr. Sra picked up Mr. Candaele at 08:31 hours on that date.

He wanted to go to theMcDonald’s near Canada Olympic Park, but changed his mind on the way to that location. Instead, Mr. Candaele wanted to be droppedoff at the U-Haul located at 8420 Bowfort Road NW. [64] Mr. Sra dropped Mr. Candaele off at the U-Haul location at 08:36 hours on February 10, 2020. He told Mr. Sra that his wifewas missing. [65] After the police took continuity of the U-Haul Vehicle, a mechanical inspection was completed on the unit. No mechanicalfaults were found in the vehicle.

[ 66 ] The undercarriage of the U-Haul Vehicle was swabbed by Calgary Police Service. One swab was collected on the undercarriage of the U-Haul Vehicle in the area of the rear differential (the “ Rear Differential Swab ”). The DNA analysis from the Rear Differential Swab was confirmed to match the DNA sample taken from the Deceased post mortem. The probability of the two DNA samples matching at random is 1 in 4.2 quintillion. C. Overview of the Evidence [ 67 ] This trial was originally scheduled for fifteen days in April and May of 2021. Not all fifteen days were required to deal with the trial.

Closing submissions took place on May 6, 2021. [ 68 ] The Crown called 23 witnesses during trial, including eight police officers, one paramedic, one 911 call-taker, one medical expert, one probation officer, and eleven civilian witnesses. The Accused did not testify in his defence. [ 69 ] The majority of exhibits relied on by the Crown were entered by consent.

These include: • the Agreed Statement of Facts, which admitted the following closed-circuit television (“ CCTV ”) recorded on February 9 and February 10, 2020: o Space Place NW Self Storage, 118 Bowridge Drive NW; o Petro-Can, 8420 Bowfort Road NW; o McDonald’s, 8235 Bowridge Crescent; o 7-Eleven Store, 6306 Bowness Road NW; and o 8104 33 Avenue NE. • the Agreed Statement of Facts, which admitted the following in-car digital video recorded on February 9 and February 10, 2020: o Calgary Transit Authority; and o Checker Yellow Cab #1585. • The Agreed Statement of Facts, which admitted the following time stamp discrepancies corrections: o Checker Yellow Cab #1585 was 1 hour and 37 minutes ahead of the actual time; o Sentinel Storage, 36 Bowridge Drive was 2 hours and 15 minutes ahead of the actual time; o Shell Gas Station, 100-8435 Bowfort Road NW was five minutes behind the actual time; o Beddington Town Centre Safeway, 8120 Boulevard NW was 7 hours and 48 minutes ahead of the actual time; and o 8040 34 Avenue NW was one minute behind the actual time. • the medical examiner’s autopsy report as well as the related autopsy photographs; • photographs taken by members of the CPS of the crime scene; • photographs taken by members of the CPS of the U-Haul Vehicle undercarriage; • U-Haul Vehicle mechanical report; • Mustard Seed Registration; • Marriage Record of Mr.

Candaele and Ms. Blommaert; • maps of the crime scene and surrounding area; and • CCTV from Sentinel Storage and Space Place. [ 70 ] The following exhibits were contested by Mr. Candaele and admitted only after their admissibility was determined in voir dire : • the 911 call of Mr. Candaele and the corresponding transcript; • telephone call with probation officer Jonathan Shevalier and corresponding transcript; • Body Worn Camera footage worn by Cst Jefferey Black of the arrest of Mr.

Candaele and corresponding transcript; • Agreed Statement of Fact regarding Det Witt and attached arrest script; and • Accusatory Interview by Dets Witt and Bangloy and corresponding transcript.

[ 71 ] I offer a

summary of some of the evidence I heard during trial. I do not propose to summarize all the evidence, but I have considered it all. D. Crown Witnesses 1. Lay Witnesses a. Cst Aaron Douglas Bridge [ 72 ] Cst Bridge testified that he is a member of the Calgary Police Service, and has been for over 10 years. He is currently with the Traffic Response Unit. [ 73 ] Cst Bridge was working as a police officer on February 10, 2020, and was involved in an investigation of a deceased person who was found on 34 th avenue between 79th and 80th Street NW, in Calgary (the “ 34 th Avenue Scene ”).

He arrived at the 34th Avenue Scene at 10:45 hours on February 10, 2020. The body of the deceased had been removed by that time. [ 74 ] Cst Bridge was assigned as the collision scene photographer on that day. In that capacity, he was tasked with the responsibility to take all-encompassing, comprehensive photos of the 34th Avenue Scene. [ 75 ] When Cst Bridge arrived at the 34th Avenue Scene, the collision reconstruction bus of the Calgary Police Service was already on-site. That bus carries all the photography equipment that a collision scene photographer requires.

He testified that he went into the bus, set up the camera and began taking photos of the 34th Avenue Scene almost immediately. [ 76 ] The body of the deceased was situated near the center of the road at the 34th Avenue Scene (the “ Body Location ”). There was a pool of blood near the Body Location, and a set of eyeglasses. [ 77 ] On cross-examination, Cst Bridge testified that he was not being directed by anyone with respect to the photographs that were taken at the 34th Avenue Scene. His determination as to what photos to take was based on his training.

However, Cst Bridge also testified that it was his practice to ask the collision reconstructionist if there was anything extra that they may want included in the photograph coverage. [ 78 ] I found Cst Bridge to be both a credible and reliable witness. b. Shyanne Maree Hilson [ 79 ] Ms. Hilson resides at 8015-34 th Avenue, NW Calgary. She has lived there for 34 years, which is her entire life. She described the area, which was a typical suburban area of Calgary. There are stand alone houses, and a park in the area. [ 80 ] On the morning of February 10, 2020, Ms. Hilson left her house for work.

She departed her house just before 05:30 hours, which was typical. She had a City bus to catch. [ 81 ] Ms. Hilson testified that it was dark and cold. She also stated that there was a streetlight at the edge of her property, which would have provided some light. [ 82 ] Upon leaving the house, Ms. Hilson exited by way of her front door and started walking east on 34 th Avenue NW, towards 79th Street NW. She looked both ways to cross the street, at which time she noticed something on the road. At the time, it just looked like something that had been dumped.

It looked to be a dark bundle (the “ Dark Bundle ”). [ 83 ] Since she was running late that day, Ms. Hilson did not take the time to check the unknown Dark Bundle. She thought it was a garbage bag or something similar that some had dumped onto the road. [ 84 ] Given that context, Ms. Hilson testified that she continued to walk towards 79 th Street NW en route to the bus stop on Bowness Road. [ 85 ] During direct examination, Ms. Hilson drew on a map the location of the Dark Bundle, and indicated the direction in which she was walking. [ 86 ] In cross-examination, Ms.

Hilson testified that she did not hear any voices during the night. In response to further questions, she stated that she was a sound sleeper. [ 87 ] I found Ms. Hilson to be both a credible and reliable witness. c. David John Samuelson [ 88 ] Mr. Samuelson works for a large oil and gas producer, in the completions group. He is 55 years old. He has worked in the oil and gas business since approximately 1987, for both the ERCB (as it then was) and large producers. [ 89 ] Mr. Samuelson has lived in Calgary since 1983. He lives in a house at 8040-34 th Avenue, and has lived there since 1997. [ 90 ] Mr.

Samuelson testified that he heard some commotion in the front of his house during the middle of the night. He did not look at the clock to note the time. He stated that he just heard some yelling, and then went back to sleep.

[ 91 ] The dialogue that Mr. Samuelson testified he heard was a male voice saying “fuck you”. He then heard a vehicle door slam, and the vehicle drove away. He again confirmed these points during cross-examination. While he did not suggest that he got up to view the disturbance, he referred to the vehicle as being a car. In cross-examination, Mr. Samuelson confirmed that when he heard the noise he did not even open his eyes. [ 92 ] While Mr. Samuelson testified that he thought he heard the commotion at between 03:00 and 04:00 hours on February 10, 2020, that was purely a guess.

He further testified that he got up at approximately 5:15 am on that day. [ 93 ] After getting ready to depart for work, Mr. Samuelson went out to the garage behind his house and got into his wife's car at approximately 06:02 hours on February 10, 2020. He testified that he exited the garage in the vehicle and drove through the back alley to the front along 80th Street NW. He was going to turn left onto 34th Avenue NW, but waited for another vehicle coming towards him to turn right. Once that other vehicle turned onto 34 th Avenue NW, Mr. Samuelson turned and followed that vehicle down the road.

That other vehicle in front of Mr. Samuelson stopped, and the driver got out, and waved Mr. Samuelson down. There was a body in the middle of the road on 34 th Avenue NW, between 79th Street and 80 th Street NW, which I defined above as the 34 th Avenue Scene. [ 94 ] Mr. Samuelson testified that the body was facedown, and it was perpendicular to the sidewalks. He further testified that the body had a black jacket on, which was kind of pulled up over her head. [ 95 ] Mr. Samuelson testified that the other driver dialled 911 on his cellphone, and put it on speakerphone.

The 911 operator (the “ First 911 Operator ”) asked them to try and wake the person. The First 911 Operator then asked Mr. Samuelson and the other driver to flip the individual over. [ 96 ] Mr. Samuelson testified that they realized it was a female after they rolled the body over. It was at that point that he noticed blood on the road, which had pooled underneath of her. [ 97 ] The other driver checked for a pulse on the female. No pulse was detected. Mr. Samuelson testified that she was cold. When asked, he could not remember particulars about the weather, but he indicated that it was fairly cold that morning.

Concerning the female, he testified that she was cold, her lips were all blue and the ends of her fingers were clasped tightly, with her thumbs outward. [ 98 ] Mr. Samuelson has a number of video cameras on the outside of his residence. He provided the video from the relevant video cameras to Calgary Police Service. He acknowledged that his video surveillance skipped approximately 30 seconds of coverage on the morning of February 10, 2020, and that there was some time drift on the video.

Concerning that time drifting, he testified that the time stamp could drift five to ten minutes over a six-month period. [ 99 ] In cross-examination, Mr. Samuelson testifies that he believed the fire department arrived first, followed very shortly thereafter by the ambulance. He did not state when the police arrived, but he did state that there were a lot of vehicles coming to the 34 th Avenue Scene, accompanied by a number of first responders. [ 100 ] In cross-examination, Mr. Samuelson also testified that his house was approximately three to four houses west of where the body was found.

His house is on the corner of 34 th Avenue and 80 th Street. [ 101 ] In cross-examination, Mr. Samuelson confirmed that he reviewed the CCTV video footage before he gave it to the Calgary City Police. During that review, he saw the U-Haul Vehicle back-up, and then the camera clips-out briefly. Mr. Samuelson explained that the camera clips out from time to time, and does not record because it is a wireless camera. That explanation was not challenged. [ 102 ] I found Mr. Samuelson to be both a credible and reliable witness. d. Jeremy Christopher Loewen [ 103 ] Mr.

Loewen is 49 years old, and has lived in Calgary all of his life. He describes himself as an inventor. [ 104 ] Mr. Loewen resides at 8123-34 th Avenue NW. He has lived there seven years. [ 105 ] Mr. Loewen testified that on February 10, 2020, he woke-up and prepared to leave for work. He typically leaves home for work at between 05:30 hours and 06:00 hours every day. [ 106 ] On the morning of February 10, 2020, Mr. Loewen left his garage and entered the back-alley. He proceeded to 34th Avenue NW. As he was driving down that avenue, Mr.

Loewen saw what initially looked like a large black garbage bag in the middle of the road. I described that item above as being the Dark Bundle. [ 107 ] Mr. Loewen was going less than 30 km an hour when he spotted the Dark Bundle. He testified that he stopped because he was going to put the Dark Bundle to the side so no other vehicle would hit the object. [ 108 ] Upon exiting his vehicle, Mr. Loewen realized that the Dark Bundle was not a garbage bag. I infer from his testimony that it was at this point he realized that the Dark Bundle was a body.

He described the body as being curled up, similar to the fetal position, and dressed in black clothing. [ 109 ] Mr. Loewen also testified that people were driving down 34th Avenue NW. As a protective step, he moved his vehicle to protect the body. In addition, Mr. Loewen positioned his vehicle so that his headlights provided better lighting of the 34th Avenue Scene. He does not remember the streetlights being on, and he confirmed that in cross-examination. [ 110 ] Mr. Loewen testified that Mr. Samuelson then came to assist. At that time, Mr. Loewen was on the phone with the First 911 Operator.

In cross-examination, Mr. Loewen testified that the First 911 Operator asked him to check the body for vital signs. At some

point during this process, Mr. Samuelson further assisted Mr. Loewen by stopping traffic. [ 111 ] Mr. Loewen testified that the First 911 Operator asked whether he could administer resuscitation to the individual. In response to that question, Mr. Loewen testified that he told the First 911 Operator that the individual had passed. I infer that he made this determination because, as he testified, her skin was blue, the ends of her fingers were curled, and she had no detectible pulse. [ 112 ] Mr.

Loewen also testified that when the First 911 Operator asked if he could give her resuscitation, he responded that there was no point. I infer that he made this determination because, as he testified, her eyes were in the back of her head, she was blue and stiff. [ 113 ] In cross-examination, Mr. Loewen testified that the first support personnel to arrive on scene were the Calgary Police Officers. He also stated that the ambulance arrived shortly thereafter.

He further testified that once the Calgary Police Service arrived, his contribution at the 34th Avenue Scene effectively ceased. [ 114 ] In cross-examination, Mr. Loewen testified that a Police Officer asked Mr. Loewen to wait in his vehicle. That same Police Officer subsequently asked Mr. Loewen if he took any pictures. Upon being informed that he had, the Police Officer asked Mr. Loewen to send the photos to him. As a final comment on direct examination, he confirmed that had heard nothing out of the ordinary during the early hours of February 10, 2020. [ 115 ] I found Mr.

Loewen to be both a credible and reliable witness. e. Cst Jefferey Black [ 116 ] Cst Black is a member of the Calgary Police Service, and has been for six years. He works in District 2, which covers the Bowness area in the northwest quadrant of the City. [ 117 ] Cst Black testified that he was on general patrol duty on the morning of February 10, 2020. Cst Petersen was with him in the police vehicle.

They had been responding to an unrelated call that morning, and were driving into the Bowness area. [ 118 ] They were interrupted by a priority call involving an unresponsive, unconscious female who had been found by two citizens in the area of 80th Street and 34th Avenue NW, which I defined above as the 34 th Avenue Scene. Upon receipt of that priority call, they were immediately redirected from the unrelated call and proceeded with lights and sirens to the 34th Avenue Scene. [ 119 ] Cst Black testified that Cst Petersen and he approached the 34th Avenue Scene, heading from east to west.

He testified that it was early morning and it was dark, but the street lamps “provided a well-lit area”. [ 120 ] As he approached the 34th Avenue Scene, Cst Black observed two men standing on the road, as well as what he now knows to be the Deceased. He testified that the victim was lying on the centre of the road in front of the residence with the address of 8024 - 34th Avenue NW. [ 121 ] Cst Black testified that immediately after he exited his police car on arrival at the 34th Avenue Scene, he directed his partner, Constable Petersen, to approach the two assisting citizens who would become witnesses.

He proceeded straight to the victim. The head of the victim was facing west and the feet were facing east. [ 122 ] Cst Black noted that the victim was lying on her back. There was a severe laceration to her scalp, a portion of which was peeled back. He testified that blood had pooled around the victim, and that the individual was unresponsive. [ 123 ] Cst Black testified that he conducted a pulse check on the victim, but could not detect anything. He also shone his flashlight in her eyes, but the pupils were fixed and unresponsive to light.

At about that time, Emergency Medical Services (“EMS”) arrived on scene and took over care of the victim. [ 124 ] Cst Black estimated the EMS arrival to be approximately 06:15 hours. The EMS personnel conducted further medical interventions, packaging the victim and placing her in the ambulance. [ 125 ] In cross-examination, Cst Black testified that once he had made a preliminary determination that the victim was deceased, he cordoned off the road so no traffic could get in or out, but for first responders.

He again indicated that the street lights where on when he arrived at the 34th Avenue Scene. [ 126 ] Cst Black testified that he directed his partner, Cst Petersen, to maintain continuity of the victim. He testified that he gave this direction because he believed the victim was deceased at that time. I infer that he took that step to ensure that he was protecting the continuity of the body for evidentiary purposes. He also testified that prior to the arrival of the other first responders, only Mr. Samuelson, Mr.

Loewen, Cst Petersen and he were at the 34th Avenue Scene. [ 127 ] Cst Black started coordinating resources and further cordoned off the 34th Avenue Scene. He directed the Calgary Fire Department unit to apply police scene tape to the east and west ends of the road. He updated his street sergeant as to what he had found. [ 128 ] Cst Black also began to coordinate other resources at the 34th Avenue Scene. He testified that he remained on scene: (

i) directed other first responders who were coming into the area; (ii) located closed-circuit video footage from one of the residences along the street; (iii) directed police units to investigate the possible video footage; and (iv) updated another member of the Calgary Police Force who came to maintain continuity on the other end of the 34th Avenue Scene area. This latter step allowed the Calgary Fire Department to be relieved of their duties. [ 129 ] Cst Black testified that he took photos of the 34th Avenue Scene also. He stated that he did so to better ensure that evidence was not lost.

He also instructed Cst Petersen to take pictures of the victim's shoes. He stated that Cst Petersen was at the hospital with the victim when he made that request. Cst Black expanded a search of the area around the 34th Avenue Scene to include the adjoining green

space and alleys. [ 130 ] Cst Black learned at approximately 06:56 hours on February 10, 2020, from Cst Petersen, who had maintained continuity of the victim, that doctors at the hospital had declared Ms. Blommaert deceased. [ 131 ] At 11:00 hours on February 10, 2020, Cst Black was advised by a senior officer that he could clear the 34th Avenue Scene. He then headed back to the District 2 office of the Calgary Police Service, and completed his notes and Will State. [ 132 ] I found Cst Black to be both a credible and reliable witness. f.

Cst Danielle Anne Louisa Petersen [ 133 ] Cst Petersen is a member of the Calgary Police Service, and has been for approximately 23 months. She works in District 2, which includes the Bowness and Sunalta areas of the City. [ 134 ] Cst Petersen testified that Cst Black and her were on their way to an unrelated call when they received a medical-collapse call at approximately 06:05 hours on February 10, 2020.

She stated they where informed that there was an unresponsive female found lying in the middle of the road. [ 135 ] Cst Petersen testified that Cst Black was driving a marked police vehicle, and that both of them were in full uniform. They drove to the 34th Avenue Scene. [ 136 ] Cst Petersen testified that they arrived on scene in the early morning, and that it was still dark out. She also stated that streetlights were on, which allowed her to make out the people over a block away. [ 137 ] Cst Petersen provided an overview of her actions when she arrived on scene.

She testified that when they exited the police car at the 34th Avenue Scene, Cst Black went directly to the female victim. At that time, Cst Petersen engaged the two citizens who were on scene. She then obtained police tape, and started taping off the area. At about that time, she testified that Cst Black instructed her to hold continuity of the female victim. From that point, she maintained continuity of the female victim. [ 138 ] Cst Petersen provided an overview of that continuity.

She testified that she watched as EMS and fire department personnel provided medical aid, and placed the female victim into the back of the ambulance on a stretcher. As part of that continuity, Cst Petersen climbed into the back of the ambulance. While in the back of the ambulance, she assisted EMS personnel in their attempt to provide CPR to the female victim. [ 139 ] The ambulance drove to the Foothills Medical Centre, and Cst Petersen testified that she watched as medical staff gave the female victim further medical assistance.

She also observed that the female victim had a large gash on her forehead, being at least five inches in length. Cst Petersen testified that it looked like the gash penetrated to the skull bone. [ 140 ] Ultimately, a doctor declared the female victim deceased at 06:55 hours on February 10, 2020. [ 141 ] Cst Petersen testified that she stayed with the female victim the entire time. During her continuity of the female victim, Cst Petersen observed injuries on her.

She maintained continuity of the female victim until the medical examiner took possession of the body. [ 142 ] Cst Petersen seized items and clothing of the female victim, and looked for identification. She conveyed all of the seized items to the Westwinds Property Room and booked them into the Calgary Police Service system. She testified that the only exception was a key chain, which she gave to Cst Fraser. [ 143 ] Cst Petersen testified that the key chain had several keys on it, including a key fob and what appeared to be a vehicle key.

She also testified that she found the keys in the front left pocket on the top inside of the fur jacket that the female victim was wearing. [ 144 ] Once the medical examiner had taken possession of the body, Cst Petersen returned to the District 2 office of the Calgary Police Service office. Upon returning to District 2, she typed her notes. [ 145 ] Cst Petersen was not cross-examined by Defense Counsel. I draw no inference from that decision. [ 146 ] I found Cst Petersen to be both a credible and reliable witness. g. Robert Jonathan Cloherty [ 147 ] Mr. Cloherty is 26 years old.

He is employed as an Emergency Medical Technician (“ EMT ”) at Alberta Health Services, also known as a paramedic. He has been employed as an EMT for two years. [ 148 ] The area of practice of Mr. Cloherty is as an advanced care paramedic. He attends scenes when people are in distress or in need of help. He treats a patient’s needs and transports them to a hospital. The treatment he provides depends on what the patient’s health needs require. [ 149 ] On February 10, 2020, Mr. Cloherty had just started his shift at 06:00 hours. As was typical, he arrived at work approximately 15 minutes early on that day.

His ambulance got called out shortly after 06:00 hours. [ 150 ] Mr. Cloherty was riding as the “third” on February 10, 2020. Although paramedics normally work in pairs, he was returning back to full duties from a previous workplace injury. As a result, he was situated in the airway chair of the ambulance, which is in the patient compartment. The airway chair swivels, so he was able to see the windshield through a two-foot “window” as they were

traveling. [ 151 ] When Mr. Cloherty and the other two paramedics arrived at the 34th Avenue Scene, he testified seeing members of the Calgary Police Service and Calgary Fire already on location. When asked about the lighting in direct examination, he testified that there were “run-of-the-mill streetlights”, and that those lights were on. That said, he commented that the ambulance has its own floodlights, which the paramedics use to ensure their safety and the safety of the scene. [ 152 ] In cross-examination, Mr.

Cloherty stated that the vehicle floodlights come on automatically when the side door of the ambulance is opened. He confirmed that occurred in this case because he remembered exiting by way of the side door of the vehicle. [ 153 ] In further cross-examination, he remembered there being an adjacent street, and seeing the streetlights on that street. He also remembered the 34th Avenue Scene being lit enough that the paramedics could assess the situation.

However, during that cross- examination he retreated a bit because he did not recall looking at the streetlights on the 34th Avenue Scene avenue to confirm if they were on. [ 154 ] As the paramedics approached the 34th Avenue Scene, they found the female victim lying on the ground. Mr. Cloherty testified that they started to work on the female victim in accordance with normal protocol. However, the female victim was outside, and it was cold. Notwithstanding that, the paramedics started chest compressions. [ 155 ] Mr. Cloherty testified to the injuries that he first observed on the female victim.

The first injury that he observed was a laceration on the forehead of the victim. While he testified that it was not actively bleeding, there was a pooling of some blood underneath her head. Those were the initial injuries prior to the paramedics carrying out a full review, which included stripping, palpating and assessing. [ 156 ] Mr. Cloherty testified that he had returned to the ambulance to obtain medical equipment. As he started preparing the medical equipment, Calgary Fire Department personnel came around to the back door of the ambulance and removed the stretcher.

Shortly thereafter, the other two paramedics and a firefighter arrived in the back of the ambulance with the female victim on the stretcher. The efforts at compression continued throughout. [ 157 ] Once the female victim was in the ambulance, a full review was carried out. The paramedics stripped the female victim and started assessing her. Mr. Cloherty testified that one of the factors that stood out was the unstable pelvis of the female victim. When the paramedics palpated the pelvis, there was some crepitation. [ 158 ] Mr. Cloherty explained that palpate is the hands-on physical touching by paramedics.

It is assessment technique that is used to feel for any broken bones, dislocated joints, and anything that is not anatomical. In this case, he testified that the assessment indicated that the pelvic bones were “kind of rubbing together”. [ 159 ] Mr. Cloherty also testified that the female victim had a large contusion on her right lower abdominal quadrant. Throughout the assessment, the paramedics identified abrasions and lacerations. Again, none of them were actively bleeding. That said, the main focus of the paramedics at that time was on lifesaving interventions. [ 160 ] Mr.

Cloherty testified that the paramedics continued with their protocols, including with their normal medical interventions. During this process, the paramedics transported the female victim, with lights and sirens, to the Foothills Medical Centre. At the hospital, Mr. Cloherty testified that the paramedics effected a hand-over, and worked collaboratively with the triage and the code room team concerning the patient. [ 161 ] En route to the Foothills Medical Centre, the paramedics administered care to the female victim. Mr. Cloherty testified that the protocol in this case included advanced cardiology life support.

They administered an interosseus route, which is essentially an intravenous infusion that goes into the bone. It is an access port for medications. [ 162 ] The paramedics gave the female victim epinephrine because she had low sugar. Mr. Cloherty further testified that they gave sugar in accordance to their protocols, which was a half dose because of a possible head injury. They also administered sodium bicarbonate because of the unknown down time of the female victim. Mr.

Cloherty also stated that they treated other injuries, including the laceration on the forehead. [ 163 ] As a result of the handover of the patient to the hospital, the work of the paramedics concerning the female victim ceased. At that time, the paramedics cleaned up their stretcher, and did some paperwork. The paramedics were notified by the Calgary Police Service to write out a witness statement, which they did. The paramedics then continued on with their normal working day. [ 164 ] I found Mr. Cloherty to be both a credible and reliable witness. h. Terry LaChance [ 165 ] Mr.

LaChance formerly worked at a warehouse in Strathmore, Alberta. He is currently living on support from the Workers Compensation Board. [ 166 ] On the evening of February 9, 2020, Mr. LaChance spent the night at his girlfriend's place. While he could not remember the address of his girlfriend’s house, it was later admitted into evidence as being 8032-34 th Avenue NW. [ 167 ] Mr. LaChance testified that he was woken up by yelling at approximately 04:00 hours. I infer that Mr.

LaChance estimated this approximate time because he subsequently testified that he did not look at the time when he was awakened up by the yelling. On cross- examination, he confirmed that it was a male voice that was doing the yelling. Concerning the yelling that he heard, Mr. LaChance testified that his girlfriend always slept with her window open.

[ 168 ] Mr. LaChance testified that he could not hear the words that were being uttered. He stated that he only heard the one voice, and it sounded like he might have been arguing with somebody. He indicated that the individual was really raising his voice. [ 169 ] Mr. LaChance got up and looked out the window. He testified that the vehicle across the road, with its lights on. He estimated that the vehicle was approximately 65 feet away from the window that he was peering through. He stated that he could tell it was U-Haul Vehicle because the unit had the word "U-Haul" painted on it.

He confirmed a second time on the stand that he saw the term “U-Haul” painted on the vehicle. [ 170 ] Mr. LaChance did not see anybody walking around, but somebody was in the U-Haul Vehicle revving the motor. He described it as revving and revving. [ 171 ] Mr. LaChance later described the motor sound as being a vroom, vroom, vroom. He emphasized that the vehicle was not just idling. [ 172 ] On cross-examination, Mr. LaChance confirmed that he did not see if it was a male or female who was revving the motor. Indeed, he confirmed that he could not determine who was in the vehicle at that time. [ 173 ] Mr.

LaChance testified that he watched the revving for an estimated 10 or 20 seconds. Then the individual in the U-Haul Vehicle put the unit in gear and took off. [ 174 ] His girl-friend lived three houses down from the end of the block where the U-Haul Vehicle was parked. The U-Haul Vehicle was facing east and on the wrong side of the road. Mr. LaChance confirmed this in cross-examination. [ 175 ] Mr. LaChance testified that the U-Haul Vehicle had its lights on. It was dark outside. [ 176 ] Mr. LaChance then went back to bed, but within approximately two or three minutes he heard the vehicle again.

He testified that the unit must have returned. However, he did not get up to view the vehicle that had returned. That said, he asserted that he knew it was the same vehicle that went by his girlfriend’s house again because: (

i) it sounded the same; and (ii) there was no other traffic. [ 177 ] I found Mr. LaChance to be credible and generally reliable in the evidence that he provided to the Court. My only concern with his reliability stems from the fact that he assumed certain particulars. For example, he testified that he heard yelling at approximately 04:00 hours on February 10, 2020, but he later testified that he did not confirm the time. Accordingly, I will consider his evidence carefully, and determine the weight that it should be given. i. Katelyn Muriel Gillies [ 178 ] Ms.

Gillies works as a student advisor, and has been doing that job for ten years. She is 35 years old. [ 179 ] Ms. Gillies testified that she lives in Calgary, and has lived in the City for 15 years. She has lived in the Bowness area for six years. Her address is 8035-34 th Avenue NW. She stated that her house is one house away from 80 th Street NW, and that her residence is on the south side of 34 th Avenue. [ 180 ] Ms. Gillies testified that on February 10, 2020, she woke up at 03:45 hours because her son, who was one year old at the time, woke up. She went upstairs to her son’s room.

She was with her son upstairs for approximately ten minutes, and then returned to her bedroom. [ 181 ] She later testified that her bedroom faces out to 34 th Avenue NW. Ms. Gillies estimates that she was in bed for approximately five or ten minutes after she returned from her son’s bedroom, when she heard yelling outside. [ 182 ] Ms. Gillies testified that she heard a male voice say, "I'm out of here, you fucking cunt". Ms. Gillies testified that she heard the male voice make this statement twice, and then she heard a vehicle take off. [ 183 ] On cross-examination, Ms.

Gillies testified that she described the male voice as younger. She confirmed the above statement from the male voice, and also confirmed that was all she heard. She also confirmed that she thought the vehicle was a car. [ 184 ] Ms. Gillies then testified that she heard what sounded like the same vehicle come around the block again, and back down 34 th Avenue NW. That said, she confirmed that she did not look out the window of the bedroom. She also stated that she did not recall hearing a loud engine. [ 185 ] In cross-examination, Ms.

Gillies confirmed that she did not know that anything had occurred on 34 th Avenue NW until police asked her questions when they came to her door at approximately 12:00 noon on February 10, 2020. The Calgary Police Service interviewed her in audio format only. Her husband was with her during the interview. Indeed, Ms. Gillies confirmed that the Calgary Police Service interviewed her husband first, and she was sitting beside him at that time.

Notwithstanding that she was interviewed by the Calgary Police Service when her husband, Ian Gillies, was right beside her, she confirmed in redirect examination that she only testified to what she heard on the morning of February 10, 2020. [ 186 ] In further cross-examination, Ms. Gillies described her recollection of the movement of the vehicle. In particular, she testified that as she interpreted the sound of the vehicle it: (

i) went east on 34 th Avenue NW; (ii) turned left onto 79 th Street NW; (iii) would have taken another left onto 36 th Avenue NW (because she did not think there was a 35 th Avenue NW); (iv) took a left onto 80 th Street NW; and (

v) took another left back onto 34 th Avenue NW. She confirmed in cross-examination that this was not an uncommon occurrence outside of her residence. She also confirmed that she did not get up and look out the window.

[ 187 ] I found Ms. Gillies to be credible and generally reliable in the evidence that she provided to the Court. My only concern with her reliability stems from the fact that her recollection of what was said by an apparent male during the yelling at approximately 04:00 hours on February 10, 2020 differed slightly from other witnesses. Accordingly, I will consider her evidence carefully, and determine the weight that it should be given. j. Ian Gillies [ 188 ] Mr. Gillies works as a gas fitter. He is 40 years old. He is married to Ms. Gillies, who also testified. [ 189 ] Mr.

Gillies testified that he lives in Calgary. He has lived in the Bowness area for six years. The address that he provided to the Court is the same address that Ms. Gillies gave in her testimony. [ 190 ] Mr. Gillies testified that he did not see anything concerning the events that allegedly occurred shortly after 04:00 hours on February 10, 2020. He stated that he was sleeping. However, he did remember hearing some yelling. He explained that he thought it might be an argument, but he also stated that he did not open his eyes. He testified that he assumed it was his neighbour.

He made that assumption because he had experienced a lot of loud noises coming from his next-door neighbour, Mr. Chris Pohran, on prior occasions. He testified that was the reason he did not get up to investigate the noises which he heard during the early morning hours on February 10, 2020. [ 191 ] On cross-examination, Mr. Gillies confirmed that he thought it was Mr. Pohran who was doing the yelling. That said, he also testified that he told the Calgary Police Service that he could not be sure. On further cross-examination, Mr. Gillies conceded that he had told the police that it was Mr. Pohran, “for sure”. Mr.

Gillies also stated on cross-examination that he was angry with Mr. Pohran, and had obtained a restraining order against him on a prior occasion. [ 192 ] He explained that he had heard Mr. Pohran numerous times at any hour of the night or day, and that is why he did not get up to investigate. Since the commotion had happened so many times next door, he had just given up trying to find out what was going on. [ 193 ] In the course of his testimony, Mr. Gillies also stated that their bedroom window faces 34 th Avenue NW.

He further testified that they sleep with the window open. [ 194 ] When asked during direct examination what he heard, Mr. Gillies testified that he could not tell exactly what he heard. Based on the dialogue and yelling, he inferred that somebody was not very happy. He testified that he possibly heard someone say, "I will kill you." He also stated that he heard a car start-up, but nothing further. [ 195 ] On cross-examination, Mr. Gillies testified that he could not be 100% sure what was said by the individual who was yelling during the early morning hours on February 10, 2020.

He further confirmed that he did not hear any doors opening or closing during those early morning hours. When asked during cross-examination which direction the vehicle went when it left, Mr. Gillies testified that it sounded like it headed east. [ 196 ] I found Mr. Gillies to be credible and generally reliable in the evidence that he provided to the Court. My only concern with his reliability stems from the fact that he assumed certain particulars that are inconsistent with the evidence. For example, and as noted above, he assumed that the yelling was coming from a Mr. Pohran, who was a neighbour.

That assumption was later established to be incorrect because evidence was provided to establish that Mr. Pohran was at the Mustard Seed at the relevant time. Accordingly, I will consider his evidence carefully, and determine the weight that it should be given. k. Allan Gagne [ 197 ] Mr. Gagne is 66 years old. He testified he lives in Calgary, and he currently resides at 8740 – 34 th Avenue NW. [ 198 ] Mr. Gagne testified that on February 10, 2020, he lived at 8512 – 33 rd Avenue NW. He indicated that he lived at that residence approximately 15 months. [ 199 ] Mr.

Gagne testified that he observed an incident on February 11, 2020. That date was subsequently changed to February 10, 2020, by agreement between the Crown and Defence Counsel. [ 200 ] Mr. Gagne further testified that at approximately 03:02 hours on February 10, 2020 (the date being corrected, by agreement), he went to the window in his bedroom. That window faces south. He observed a cube van parked on the south side of 33 rd Avenue, and it was pointed east. He testified that he heard some loud yelling by a male, and that it went on for five to seven minutes. Mr.

Gagne described the yelling as confrontational, agitated, and angry. He confirmed that he never saw the male who was yelling. In cross- examination, he testified that he did not recall hearing any profanity. [ 201 ] In cross-examination, Mr. Gagne confirmed his observation time of the subject event as being 03:02 hours. In both direct examination and cross-examination, he testified that he confirmed that time by looking at his phone. [ 202 ] Mr. Gagne also testified that he heard a female voice, the volume of which he described as being very low.

When questioned further in direct examination, he described the female voice as being subdued. He testified that he did see the female. [ 203 ] Mr. Gagne described the female that he saw as being Caucasian, she was wearing a dark down parka, and she had longer hair. He described the hair colour as brownish. Mr. Gagne also stated that he assumed that the female got into the vehicle because he did not see her again. In cross-examination, he confirmed that he did not see either of the individuals get into the cube van. [ 204 ] Mr. Gagne testified that across the street from him was a City of Calgary substation.

There was a light pole nearby, which

provided illumination. He described other light standards in the area, which also provided light. [ 205 ] Mr. Gagne testified that he saw a cube van, which was fairly high. He further stated that the cube van had to be high because he had a hedge in front of his property, and that hedge was approximately six feet tall. He confirmed that the hedge was between him and the cube van. [ 206 ] I found Mr. Gagne to be credible, but not necessarily reliable in the evidence that he provided to the Court.

While he was very confident concerning the evidence that he gave in Court, he testified that the incident in question occurred on February 11, 2020. That evidence was subsequently corrected by agreement between the Crown and Defence Counsel. He also testified that he heard the yelling and saw the “cube” van at approximately 03:02 hours. That time was inconsistent with the evidence from other witnesses and the CCTV footage. Accordingly, I will consider his evidence carefully, and determine the weight that it should be given. l. Justin Donald Neufeld [ 207 ] Mr.

Neufeld works at the Alex Community Health Centre in the housing program. He is 36 years old. He has one child, who was two-years old at the time of this trial. [ 208 ] Mr. Neufeld testified that he lives in Calgary, and that he lives in the Bowness area. His address is 8036 - 34th Avenue NW. He stated that his house faces 34 th Avenue, and his residence is one house away from 80 th Street NW. His residence is on the north side of 34 th Avenue. [ 209 ] Mr. Neufeld testified that on February 10, 2020, he was awakened in the early morning of February 10, 2020.

He was in his bedroom at the time, which is located on the southwest corner of his house. The window in that bedroom looks out onto 34 th Avenue NW. The window was closed on the morning of February 10, 2020. [ 210 ] He remembered hearing three distinct thumps that sounded quite loud. At first, he assumed the thumps were probably from three or four houses away, towards 79 th Street NW. He testified that it sounded like someone hitting a door really hard three times in a row, about a half a second apart from each other. He remembered thinking it was quite strange. He had not heard that noise before that event.

He testified that he did not investigate. Instead, he went back to sleep. [ 211 ] Concerning the noise, Mr. Neufeld testified that he thought he heard the three distinct thumps at approximately 04:00 hours. In cross-examination, he confirmed that he did not look at his watch, and confirmed that he did not know the exact time that he was awakened. The 04:00 hours time reference was just the sense that he had at the time.

In any event, he stated that he heard car doors slamming and other commotion outside his residence at approximately 06:00 hours, at which time he got up for the day. [ 212 ] In cross-examination, Mr. Neufeld confirmed that the Calgary Police Service did not contact him until February 14, 2020. At that time, he told the police that the sound he heard was similar to someone was pounding on a metal door or something else. He then qualified his statement to the police by stating that he was not quite certain. [ 213 ] In cross-examination, Mr. Neufeld further testified to his recollection of the time.

He stated that he was up at approximately 05:00 hours feeding his child. That is why he estimated he heard the three thumps at approximately 04:00 hours. In cross-examination, he also confirmed that: (

i) he ne

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