R v Admasu, 2021 ABQB 386

Court of Queen’s Bench of Alberta Citation: R v Admasu, 2021 ABQB 386 Date: 20210519 Docket: 160893426Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Dagmawi Abebe Admasu Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify the witnesses shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ R easons for Decision of the Honourable Mr. Justice John T. Henderson _______________________________________________________

1. Overview [1] Dagmawi Abebe Admasu is charged with first degree murder in relation to the death of Daniel Holly. He is also chargedwith aggravated assault and discharging a firearm with intent. [2] On July 23, 2016 at approximately 9:00 pm, Mr. Holly and his common law spouse left their apartment building and beganwalking to their car. As they did so, two men fired handguns at Mr. Holly, striking him multiple times in the torso and in the head. Mr.Holly was taken to hospital where he died from injuries sustained in the shooting. [3] Mr.

Holly’s common law spouse was also struck in the right wrist by one of the bullets. The publication of her name isprohibited by the terms of a publication ban granted on the first day of trial. In these reasons, I will refer to her as the “Spouse”. Theinjuries to the Spouse give rise to the charges of aggravated assault. [4] The Crown argues that a proper assessment of the totality of the evidence proves beyond a reasonable doubt that Mr.Admasu was one of the two shooters.

The Crown seeks a conviction for first degree murder and also for aggravated assault. [5] Following the shooting, the two shooters and a third person fled the apartment complex in a gold or grey mini van. Approximately 11 minutes later, police saw a van that matched the description and began a pursuit. During the pursuit, one of theoccupants of the van fired a handgun at the police vehicle to facilitate their escape. The police vehicle was occupied by two members ofthe Edmonton Police Service (EPS) and also a civilian who was on a “ride along”.

Fortunately, no one was injured in relation to thisportion of the incident. [6] The Crown argues that the totality of the evidence proves beyond a reasonable doubt that Mr. Admasu was one of theoccupants of the van during the time that shots were fired towards the police vehicle. The Crown submits that Mr. Admasu was eitherthe shooter, or alternatively was a party to the offence. The Crown seeks a conviction for discharging a firearm with intent. [7] The Defence argues that the evidence falls far short of establishing that Mr. Admasu was involved in any of the offences.

On this basis, the Defence seeks an acquittal on all counts in the indictment. [8] For the reasons that follow, I conclude that the evidence tendered by the Crown proves beyond a reasonable doubt thatmultiple offences were committed in relation to these events: • I have no reasonable doubt that both of the two shooters unlawfully caused the death of Mr. Holly, that they intended to cause Mr.Holly’s death and that it was planned and deliberate. There is no reasonable doubt that both of the shooters committed the offence offirst-degree murder.

The two shooters were joint principals and both are liable regardless of which shooter actually fired the fatal shots. • Similarly, I have no reasonable doubt that both shooters committed the offence of aggravated assault in relation to the bullet thatstruck the Spouse in the right wrist. This was a non-consensual application of force that caused the Spouse to be wounded, maimed ordisfigured. The Spouse continues to be affected by the injuries to this day. The two shooters fired the shots with an objective foresightthat bodily harm to persons near Mr. Holly would result, or were reckless in that regard.

The two shooters were also joint principals inrelation to this offence. • Finally, I conclude that the offence of discharging a firearm with intent to prevent arrest has been proven beyond a reasonabledoubt. The evidence proves beyond a reasonable doubt that one of the occupants of the van, while it was being pursued by police, shotat police with a handgun in an attempt to escape.

I conclude that one or more of the occupants of the van are guilty of this offence. [9] The primary issue in this case is whether, based on the totality of the evidence, including circumstantial evidence, andapplying the law as stated in R v Villaroman 2016 SCC 33, the only reasonable inference arising from the proven facts is that Mr.Admasu committed one or more of these offences, or alternatively that Mr. Admasu was a party to one or more of the offences. 2. Burden of Proof and Circumstantial Evidence [10] The starting point in any criminal trial is that the accused is presumed innocent until proven guilty.

This means that aconviction can only be entered if the Crown has tendered sufficient evidence to prove the guilt of Mr. Admasu beyond a reasonabledoubt. The burden remains on the Crown throughout the trial; it never shifts to the defence. Conversely, if a reasonable doubt exists asto the guilt of Mr. Admasu he must be acquitted. The Supreme Court of Canada in R v Lifchus, (SCC), [1997] 3 SCR320 and in R v Starr, 2000 SCC 40, explained that a reasonable doubt is a doubt based on reason and common sense that is logicallyconnected to the evidence, or the absence of evidence.

It is not a doubt that is based on sympathy or prejudice. Proof beyond areasonable doubt necessarily requires a higher level of proof than probable guilt, but it does not require proof to an absolute certainty. Itdoes not require proof beyond any doubt, but nor is it an imaginary or frivolous doubt. [11] Apart from the photo lineup evidence which I will specifically address later in these reasons, there is no direct evidence fromany witness that Mr. Admasu was one of the two shooters.

Furthermore, there is no direct evidence that he was an occupant of the vanduring the pursuit when shots were fired at the police vehicle. Instead, the Crown argues that the totality of the evidence, when properlyassessed, permits an inference that Mr. Admasu was one of the two shooters and that he was in the van when shots were fired at police. [12] The Supreme Court of Canada in Villaroman provided guidance in relation to circumstantial evidence. The Court explainedthe relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt.

Villaroman makes itclear that the Court must consider whether the inference urged by the Crown is the only reasonable inference that may be drawn from thecircumstantial evidence. The Crown has to negative other “reasonable possibilities”; it does not, however, need to negative “everypossible conjecture ... which might be consistent with the innocence of the accused”: Villaroman at para 37. The Supreme Court also

noted that “inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: para 36. Alternative inferences must be reasonable and rational, not just possible.

R v Lazzaro , 2016 ABCA 353 at para 8 , citing R v Dipnarine , 2014 ABCA 328 . [ 13 ] When assessing circumstantial evidence, it is important to consider the totality of the objective facts proven by the evidence along with the absence of evidence. “A gap in the evidence, or an absence of evidence, may support a reasonable inference other than guilt”; an accused is not required to provide explanations other than guilt, as this wrongly puts an obligation on an accused to prove facts, and “is contrary to the rule that whether there is a reasonable doubt is assessed by considering all the evidence”: R v Bjornson , 2018 ABCA 282 at paras 22-23 ; R v King 2020 ABCA 425 at para 30 . [ 14 ] In R v Lehner , 2020 ABCA 248 at paras 28 and 29 , the Court of Appeal provided a useful

summary of these principles: … Villaroman is an excellent reminder to a trier of fact about too readily drawing inferences of guilt by overlooking reasonable alternative inferences. The trier of fact is mandated to consider other plausible theories and other reasonable possibilities that are inconsistent with guilt. The Crown may need to negative those reasonable possibilities, but certainly does not need to negative every possible conjecture which might be consistent with the innocence of the accused.

Although the line between plausible theory and speculation is not always easy to draw, the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the guilt of the accused. ... It was noted in Villaroman that “‘[c]ircumstantial evidence does not have to totally exclude other conceivable inferences’; that the trier of fact should not act on alternative

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible”: at para 42, citing R v Dipnarine at paras 22 and 24-25 . [ 15 ] Where the criteria in Villaroman are properly applied, circumstantial evidence can be used to prove that the accused person before the court was the person who committed the offence: R v Hassan Ali , 2021 ABCA 21 ; R v Eide, 2021 ABCA 70 ; R v Habte , 2020 ABCA 476 , R v Matchee 2019 ABCA 5 ; R v Brazeau , 2018 ABCA 170 . [ 16 ] The primary issue in this case is whether, after applying the principles in Villroaman , the Crown has proven the guilt of Mr.

Admasu beyond a reasonable doubt based on permitted inferences. 3. The Circumstances of the Offences [ 17 ] The evidence tendered by the Crown shows that the critical events occurred on July 23, 2016 in Edmonton, over a 23-minute time period from approximately 9:00 pm, when the shooting took place until approximately 9:23 pm, when Mr. Admasu was arrested several miles away. Multiple eyewitnesses testified regarding what they saw and heard at various locations during those 23 minutes. Apart from the photo lineup evidence, which I will address later in these reasons, none of the witnesses testified that Mr.

Admasu was the person who committed the offences. [ 18 ] The Crown argues that when the totality of the evidence is properly considered the only inference is that the Accused is guilty on each of the three counts and that the circumstantial evidence does not give rise to any reasonable inference consistent with the absence of guilt. A. Britnell Eyewitness Evidence [ 19 ] The Spouse was the only witness who testified as to what happened in the moments immediately before and during the shooting. Five additional eyewitnesses testified regarding the events that took place immediately after the shooting.

These witnesses were either residents or visitors at the Britnell apartment complex located in north east Edmonton. As was the case with the Spouse, the publication of the names of these witnesses is protected by the terms of a publication ban that was granted on the first day of trial. I will therefore describe these witnesses in very general terms without referring to their names. i. The Scene of the Shooting [ 20 ] To understand the evidence of the eyewitnesses, it is necessary to briefly describe the area in which the shooting took place.

The location was on a parcel of land containing a complex consisting of two apartment buildings, 432 Britnell Blvd and 436 Britnell Blvd. Both buildings are 4 stories tall and are approximately the same size. 436 Britnell occupies most of the north side of the parcel of land. 432 Britnell occupies most of the south side of the parcel of land, apart from the south west corner which consists of parking area and a gazebo.

The shooting took place in the parking area to the west of 432 Britnell. [ 21 ] The two apartment buildings face each other and are separated by a parking lot that has an island in the middle running east to west. A row of parking is on each side of the island. In addition, there is a row of parking also running east to west immediately in front of each of the two buildings. Thus, the two buildings are separated by 4 rows of parking and two driveways. ii. The Shooting of Mr. Holly and the Spouse [ 22 ] The Spouse was very precise in describing her actions prior to the shooting. She explained that she and Mr.

Holly had arrived home at approximately 8:15 pm and approximately ½ hour or 45 minutes later they left the apartment to get food. She described walking out of the building and seeing a black male sitting in an unusual way on a bench in the gazebo. She testified that the male smiled and nodded at her in a friendly way and she responded by nodding and saying “Hi”. She then continued walking to the car when she saw a second black male coming out from behind a white van that was parked on the far side of the parking lot.

She watched as this second male walked toward them with a gun in his hand and began shooting at Mr. Holly, striking him several times. She testified that she held her hand out instinctively to protect Mr. Holly and she was also struck by a bullet. She testified that she and Mr. Holly fell to the ground,

at which time the first male approached them and shot Mr. Holly in the head from very close range. She testified that she panicked and got up and ran to the apartment building. She also testified that she watched as the two shooters got into rear of a gold or brown van and the van then drove away. [ 23 ] The Spouse was able to provide only a very general description of the shooters. She testified that the shooters were both black men, aged 20 to 25, of medium build and wearing black hoodies. She was not asked in Court whether she was able to identify Mr. Admasu as one of the shooters.

I infer that she was not able to do so. [ 24 ] During this portion of her evidence, the Spouse was both credible and largely reliable. Her evidence was corroborated, in part, by some of the forensic evidence gathered by members of the EPS. During the search of the parking area, police discovered multiple spent cartridge shells and several bullets in the south west area of the parking lot near where Mr. Holly’s vehicle had been parked. The cartridge shells and bullets were both 40 caliber and 45 caliber, thus clearly indicating that two firearms had been used during the attack.

The forensic evidence shows that a cluster of three 40 caliber shell casings were located very near the gazebo where the Spouse and the first male had exchanged friendly greetings. Two other 40 shell casings were located closer to Mr. Holly’s vehicle, which is consistent with the Spouse’s evidence that the first man approached after Mr. Holly had fallen to the ground and shot him in the head. [ 25 ] A cluster of 45 calibre shell casings and bullets were found west of Mr. Holly’s car.

This corroborates the Spouse’s evidence that the second man approached from the west side of the parking lot and began firing at Mr. Holly at very close range. iii. Post Shooting Events [ 26 ] As might be expected, the eyewitnesses gave evidence that was in some respects inconsistent with respect to the events that took place immediately after the shooting. This is understandable since they each began their observations at slightly different times and they had different vantage points from which they made their observations. Furthermore, these events occurred very quickly over a short span of time.

All of the observations were made of a very traumatic event. This is particularly so in relation to the Spouse who was also injured in the incident. [ 27 ] Despite the inconsistencies, I am satisfied that all of the eye witnesses were credible and attempted to recount their observations to the best of their abilities. [ 28 ] Some of the inconsistencies relate to material facts in terms of attempting to identify the two shooters. For example, there was a lack of consistency in the descriptions of the clothing worn by the two shooters.

The Spouse described them as both wearing black hoodies and that one of them was also wearing dark pants. Another witness testified that one of the men was wearing a hoodie but could not speak to the clothing that the other was wearing. [ 29 ] There was consistency among the eye witnesses that the two men left in a gold or brown van, although several inconsistencies arose in relation to the van. For example: • There was inconsistency as to the location of the van before the shooting. The Spouse testified that immediately after the shooting the van approached from 436 Brinell.

However, two witnesses described that the van had been backed into a parking stall on the far west side of the parking lot very close to where the shooting took place. • There was inconsistency in terms of how the men got into the van. The Spouse described both of the shooters getting into the rear of the van after it approached from 436 Britnell Blvd. However, another witness described one of the men entering the van through the driver’s door. • There was inconsistency as to whether the van drove away with the right rear sliding door open.

Two of the witnesses testified that the van drove away with the right rear sliding door open. This is potentially consistent with the evidence of the Spouse that the two shooters got into the rear of the van. However, the video surveillance evidence from the lobby of 432 Britnell demonstrates that by the time the van reached the mid point of the building where the lobby is situated, the right rear sliding door was closed. • There was inconsistency in relation to the description of the driver of the van.

One witness described the driver as wearing a white shirt while another witness described the driver as wearing a black hoodie and a durag over his head • There was some potential inconsistency in relation to how many men were in the van. The Spouse testified that the vehicle was in motion and approached before the two shooters got in, thus implying that there was at least one other person who was driving the van. She also agreed in cross examination that there may have been a fourth person in the van who opened the rear sliding door so that the shooters could get in.

However, one witness testified that she saw one of the two men get into the van through the driver’s door before it drove away. This may imply that there were as few as 2 men in the van when it left the parking lot. • There was inconsistency in terms of how fast the van was travelling when it left the area of the shooting. Two witnesses testified that is was travelling fast or was speeding. However, another witness described that the van was travelling slowly “like they were on a Sunday drive”. [ 30 ] The Spouse was in the best position to observe what happened immediately after the shooting.

However, she was injured, she was concerned about the severity of the injuries to Mr. Holly, she was acting in a hysterical fashion and she ran back toward 432 Britnell Blvd. Thus, while I am satisfied that she was attempting to provide accurate evidence regarding the post shooting events, I assess her evidence with caution and in the context of her condition at the time. [ 31 ] Of the remaining 5 eyewitnesses, four had good vantage points to see the events as they unfolded. The witness who was closest to the location of the shooting was a young woman who resided on the ground level of 432 Britnell Blvd.

This woman heard sounds that she initially thought to be fireworks, but when she heard no sounds of celebration she concluded that the sound were gunshots. She then went to her balcony door and saw a gold metallic van driving east through the parking lot at high speed. She had a clear view of the right-hand side of the van as it passed from her left to right. As it was passing in front of her, she saw that the driver

was a black male wearing dark clothing and a black head covering. After making this observation, she went to her laundry room for safety. Of significance, this woman testified that a few days prior to the shooting, she had seen what she thought to be the same van parked on the west side of the parking lot. This van was in the parking lot for approximately 1 hour as she was cleaning her car. She said that she saw only one person in the van at that time.

This person was a black male, in his mid 20s, of average height and his hair was in short “dreds”. [ 32 ] Two of the eyewitnesses were situated in 436 Britnell Blvd at the far west end of the building. The first of these two was a younger man who was on the second floor and the other was an older man was on the fourth floor. From their balconies, both of these witnesses had a clear and unobstructed view directly toward the area of the shooting. The younger man was laying on his couch when he heard several sounds that he initially thought to be rocks hitting a garbage can.

From his position on the couch, he looked out and saw 2 black men running to a van. One was wearing a dark grey or black hoodie and was carrying a shinny silver gun. The two men got into the Gold Pontiac mini van which had been backed into a parking stall on the far western edge of the parking lot. He testified that they drove away quickly. [ 33 ] The older man heard 4 gunshots, then a brief pause, followed by 2 additional gunshots. He went to his balcony and saw that a Gold Pontiac (or Chevy) mini van was driving north along the western edge of the parking lot travelling directly toward him.

He saw that the driver was a black man who was wearing a white shirt and a second black man was in the passenger seat. This man was wearing a dark shirt. The van then made a right turn and travelled east past 432 Britnell and exited the parking lot. [ 34 ] The fourth eyewitness was a woman who was visiting her daughter on the fourth floor of 436 Britnell Blvd, but closer to the middle of the building. She was slightly further away and thus her view was not as good at the other two men. She heard a number of “bangs” that she first thought to be fireworks.

However, she looked out the balcony window and saw two men walking to a light brown van that was backed into a stall on the far west side of the parking lot. She said that one of the men got into the driver’s side and the other got into the passenger side. They then drove away slowly as if they were on a Sunday drive. As the van drove away she noticed that the right rear sliding door was open. [ 35 ] The 5 th eyewitness was a resident of a ground floor unit of 436 Britnell Blvd at the far eastern end of the building.

Thus, he was furthest away from the shooting and his observations were likely obstructed by the vehicles in the parking lot. He testified that he heard 6 “pops” and went to his balcony. He saw a gold van travelling east in the parking lot. He noticed that the right-side sliding door was open. He made no observations of the driver or any other occupants of the van. [ 36 ] It is not possible to reconcile all of the evidence of the eyewitnesses. However, it is possible to make some findings of fact which I will address later in these reasons. B.

Police Pursuit of Van [ 37 ] Police received a 911 call in relation to this incident at approximately 9:01 pm and the first officers arrived at the apartment complex at 9:06 pm. [ 38 ] Within a few minutes of the shooting, police officers in North Edmonton were alerted to the shooting and were provided with a description of the van and of the general description of the shooters. [ 39 ] Approximately 11 or 12 minutes after the shooting, Cst. Gabucci and Cst. Najmeddine saw a van that matched the description. At the time, they were travelling north east on Fort Road near 66 th Street in a marked police vehicle.

The van was approaching them from the opposite direction. Neither of the police officers could provide a description of the occupants of the van other than that both the driver and the front passenger were black men. Cst. Gabucci immediately executed a u-turn at 64 th Street. After making that turn, the back of the van could still be seen but it had “taken off”. Cst. Gabucci and Cst. Najmeddine very quickly lost sight of the van after it turned off Fort Road to travel west on 127 th Avenue and then north at approximately 68 th Street. [ 40 ] At about this same time, an unmarked police vehicle operated by Cst.

Davis was travelling in a south bound direction on 66 th street approaching 129 th Avenue. Cst. Hudson and a civilian “ride along” passenger were also in the vehicle. Cst. Davis heard a radio broadcast that Cst. Gabucci and Cst. Najmeddine had seen the van in the area. At or about the same time, Cst. Davis saw a van matching the description two blocks to the west as it was making a left-hand turn from 68 th Street to travel west on 129 th Avenue. Cst.

Davis immediately began to pursue the van. [ 41 ] While there is some conflicting evidence as to the precise path that the pursuit followed at times, it is very clear that over the next few minutes Cst. Davis very aggressively pursued the van at very high speeds through a series of residential streets making multiple turns and through at least one stop sign. This was an extremely high-risk pursuit from the perspective of police, the occupants of the van and the residents in the area. [ 42 ] At some point during the pursuit, Cst. Gabucci and Cst. Najmeddine regained sight of the van and joined the pursuit.

From that point on, the van was being followed by both Cst. Davis in an unmarked police vehicle and by Cst. Gabucci in a marked police vehicle. [ 43 ] Count 3 on the Indictment relates to allegations that Mr. Admasu discharged a firearm with intent to prevent arrest. The events that give rise to this count occurred near the intersection of 129 th Avenue and 70 th Street. The Crown tendered the evidence of 4 police officers, the civilian ride-a-long passenger and two additional civilians in relation to these events. The evidence of these witnesses was not entirely consistent.

I conclude that the lack of consistency arises because the witnesses viewed the events from different vantage points and because the events occurred very rapidly in very stressful circumstances. All of the witnesses genuinely attempted to provide their most accurate recollection of the events.

[ 44 ] Cst Najmeddine testified that as the three vehicles were approaching 70 th Street, the driver’s side sliding door of the van opened. Cst. Najmeddine testified that as the van was turning left to travel south on 70 th Street, one of the occupants of the van reached out the sliding door and he heard what he thought to be gunfire at the police vehicles as they were still westbound on 129 th Avenue. Because the van was perpendicular to the police vehicles at that time, the shooter had a clear view of the police vehicles. Cst.

Najmeddine testified that he heard 4 or 5 shots and could smell the gun powder. [ 45 ] These events were also observed by the other occupants of police vehicles, including Cst. Davis, Cst Hudson, Cst. Gabbuci and the civilian “ride-a-long”. [ 46 ] Cst. Gabbuci was the driver of the vehicle in which Cst. Najmeddine was a passenger. He testified that he saw the upper torso and arm of a person extended from the door of the van, but he was focused on driving and made no further observations. He was not able to say definitively that he had heard shots fired. [ 47 ] Cst.

Davis was the driver of the police vehicle that was immediately behind the van. He testified that as the van turned south on 70 th Street, he saw an arm come out of the left sliding door of the van. He saw that the person was holding a handgun but he did not hear any shots. He explained that the widows were up and his siren was on at the time. Cst. Davis testified that the person holding the gun was wearing a black sleeved sweater or hoodie and also had a blue bandana. [ 48 ] Cst. Hudson was the passenger in the vehicle being operated by Cst. Davis. Cst.

Hudson testified that he saw an arm reach out of the left-hand sliding door and he saw a gun that was pointed at the police vehicles. Like Cst. Davis, he did not hear any shots. Cst. Hudson made no observations of the clothing worn by the person holding the handgun. [ 49 ] The civilian “ride-a-long” was in the back seat of the unmarked police vehicle. She observed the left sliding door of the van open and watched as an arm came out of the door. She did not see a gun and did not hear any shots fired. [ 50 ] Two residents of the area also witnessed these events.

One witness heard squealing tires and went outside to ensure that there were no children playing in the area who might be in danger. He was standing on the south side of 129 th Avenue at the alley between 68 th and 69 th Street and saw the police pursuit. He testified that he watched as the van turned south on 70 th Street. He was approximately 1 ½ blocks from the van at that time, but his view was unobstructed because the area south of 129 th Avenue was an open field that was formerly a school yard.

He testified that he watched as a person with a handgun reached out of the left sliding door of the van and shot 4 to 6 times. [ 51 ] Another man observed these events from a different angle. He resided on the west side of 70 th Street just south of 129 th Avenue and was outside in his front yard when he saw the van and the police cars approaching. He testified that after the van turned to travel south on 70 th Street, he watched as the front passenger reached across in front of the driver of the van and shot approximately 4 times.

The van was travelling from his left to right and thus he had a clear view of the right side of the van, but he did not at that time have any view of the left sliding door. He testified that he was 100% sure that the shooter was in the front passenger seat. He made his observations from approximately 4 houses away. [ 52 ] In a search of the area later that night, police located two 40 caliber shell casings on 70 th Street south of 129 th Avenue, very near to where these events had taken place.

A forensic analysis of the shell casing found that they had been fired from the 40-caliber handgun that had been used to shoot Mr. Holly at Britnell Blvd. [ 53 ] The pursuit of the van continued south on 70 th Street, but the police vehicles slowed for safety reasons and to create some additional distance between the police vehicles and the van. [ 54 ] When the van reached 127 th Avenue, it turned right to travel westbound which it did at a very high speed. At 127 th Avenue and 82 nd Street, the traffic light was red and vehicles were stopped west bound on 127 th Avenue to wait for the light to turn green.

The van did not slow. Instead, it did changed lanes to travel in the oncoming lane of travel past the stopped cars on 127 th Avenue. The van then entered the intersection at high speed through the red light and continued west bound on 127 th Avenue. [ 55 ] For reasons of safety, the police vehicles again slowed before reaching 82 nd Street. [ 56 ] Cst. Amanda Ross was in the area at the time. She was operating a marked police vehicle and had a civilian passenger with her. Cst. Ross was aware of the pursuit that was underway and was aware that the vehicles were travelling in her direction.

She parked her police vehicle out of sight on the south side of 127 th Avenue, just west of 82 nd Street. She observed the van go through the intersection against a red light at high speed and then pass in front of her. She noted that the driver of the van was a black person wearing a hoodie pulled up over his head, partially obscuring his face. [ 57 ] After the van passed, Cst. Ross began to follow. After a few blocks, she saw the van turn right to go north on what she thought was 88 th Street. At or about the same time, the unmarked police vehicle operated by Cst. Davis passed her vehicle.

The unmarked police vehicle turned right to travel north on 87 th Street. Cst. Ross continued to travel west on 127 th Avenue. As she did so, she looked up the alley between 87 th and 88 th Streets and saw the tail lights of the van. She then turned to travel north on 88 th Street. [ 58 ] Cst. Gabbuci and Cst. Najmeddine also continued the pursuit. They also turned north on 88 th Street. [ 59 ] In the meantime, a man who resided on the north side of 130 th Avenue west of 86 th Street heard tires squealing and looked out of his living room window.

He saw a light coloured mini-van pass in front of his home traveling in an easterly direction. He testified that he saw that the driver of the van was a black male. He also testified that the left rear sliding door was open and a second

black man was crouched in the opened doorway with hands on either side of the door. This witness testified that it looked like this person was getting ready to jump out of the van. As this was happening, the van turned left from 130 th Avenue into an alley behind 86 th Street. The witness then quickly went through his kitchen and out his back door and saw that the van had come to a stop.

He then saw through his peripheral vision what he thought to be a man running west through the alley behind his house. [ 60 ] Almost immediately, police arrived in the alley behind 86 th Street just north of 130 th Avenue and found the abandoned van. C. Arrest of Mr. Admasu [ 61 ] Approximately 1 or 2 minutes after Police located the abandoned van, Sgt. Burke and police service dog “Maverick” arrived in the alley where the van had been abandoned. This was at 9:18 pm. [ 62 ] After Sgt.

Burke and “Maverick” took steps to ensure that there were no other persons remaining in the van, they began to follow a scent track that “Maverick” had picked up at the van. The scent track proceeded for a short distance west in the alley between 130 th Avenue and 130A Avenue. The scent track then crossed over a fence on the north side of the alley. [ 63 ] Sgt. Burke and “Maverick” did not cross over that fence due to logistical difficulties but did take another route to the front of that home. From there, “Maverick” again picked up the scent track and followed it north on 87 th Street to St.

Matthews School. [ 64 ] As Sgt. Burke and “Maverick” were following the scent track, Cst. Christine Von Bieker and Cst. Kato were in a police vehicle driving west on 132 nd Avenue on the north side of St. Matthews School. Cst. Von Bieker saw a man matching the suspects’ description standing just to the east of the school. The man was holding a black backpack in his hands, looking around. At or about the same time, Cst. Von Bieker saw a group of police officers and a police dog approaching the man from the south. Almost simultaneously, Cst.

Von Bieker was alerted to the presence of a second suspect on the north side of 132 nd Avenue at approximately 88 th Street. Cst. Kato got of the police vehicle and began approaching the suspect on 132 nd Avenue. Cst. Von Bieker then made a u-turn to assist her partner with the other suspect. This other suspect turned out to be Mr. Wawryk who was arrested with the assistance of Cst. Adair. [ 65 ] As Sgt. Burke arrived at the school yard two other police officers, Cst. Silliphant and Cst. Folkerts also arrived and parked in a lot on the south side of the school. They watched as Sgt.

Burke and “Maverick” moved north in the school yard and then they followed along behind. As Sgt. Burke moved north toward the school, he saw a man leaving an alcove area at the school. The man was moving quickly across the school yard in an north easterly direction. Sgt. Burke directed the man to stop. The man complied with Sgt. Burke’s directions and was arrested. This man was identified as Mr. Admasu. [ 66 ] A search of the alcove of the school resulted in police finding a black backpack which contained a number of items including a 45-caliber handgun and a 40-caliber handgun.

Forensic testing established that these were the handguns that had been used to shoot Mr. Holly at Britnell Blvd. The backpack also contained several items consistent with a “crime kit” including a ski mask, bandana, gloves, and duct tape. [ 67 ] Sgt. Burke turned Mr. Admasu over to patrol police officers to be processed and then began to go back to his vehicle. As he was doing, so he searched the area of the track that “Maverick” had been following. During this search, Sgt. Burke found a black hoodie that had been abandoned in the back-garden area near where the scent track crossed over the fence in the alley.

Sgt. Burke seized the black hoodie and turned it over to patrol officers. This black hoodie was later forensically tested and Mr. Wawryk’s DNA was found on the hoodie. [ 68 ] Sgt. Burke was qualified as an expert witness to give opinion evidence in relation to tracking by police service dogs and the reaction of police service dog “Maverick” while tracking. The opinion of Stg. Burke was that the person he arrested in the school yard, Mr. Admasu, was one of the persons who had been in the van when it was abandoned in the alley and who left the scent track that “Maverick” followed.

His opinion was not challenged by the Defence in cross-examination. D. Forensic Evidence [ 69 ] During the investigation, members of the EPS collected evidence from various locations and sent some of the evidence for testing at RCMP labs in Edmonton, Ottawa and Vancouver. Expert evidence was tendered in relation to results of the testing from each of those 3 labs. The Crown also tendered fingerprint evidence that was obtained by a member of the EPS. i. Testing for DNA [ 70 ] Several items of evidence were taken to the RCMP National Forensic Laboratory in Edmonton (the Edmonton Lab) for DNA analysis.

The DNA analysis was undertaken by Janice Lyons, an employee of the RCMP Lab who was qualified as an expert and permitted to give opinion evidence in relation to her areas of expertise, biological sciences specifically with respect to the analysis,

interpretation and reporting of DNA typing results. [ 71 ] Included among the items submitted to the Edmonton Lab were swabs from the two hand guns found in the backpack seized from the alcove in the school very near where Mr. Admasu was arrested. Two swabs from each of the two handguns were collected and sent to the Edmonton Lab for testing. For each gun, one swab was of the handle/trigger/magazine areas and one swab was from the slide of the handgun. [ 72 ] The results of the testing established a DNA typing profile from 3 of the 4 swabs.

These profiles were of mixed origin, meaning that more than one person’s DNA was found on each of the 3 swabs. In each case the partial profile of the major component

was from a single individual who was not known to Ms. Lyons. She simply designated this person as “Male 3”. Ms. Lyons was later provided with a sample of Mr. Admasu’s DNA that had been obtained through the execution of a DNA warrant. Ms. Lyons compared Mr. Admasu’s DNA with the DNA found on the two handguns and concluded that they were a “match”. [ 73 ] As a result of the DNA evidence, I find that Mr. Admasu’s DNA was on each of the two handguns found in the backpack at the school very close to where he was arrested. These were the murder weapons that were used to shoot and kill Mr. Holly. [ 74 ] Ms.

Lyons also tested two additional items that had been in the black backpack. These items were a balaclava and a ski mask. She was also provided with the black hoodie that had been found by Sgt. Burke and “Maverick”. Ms. Lyons determined that the DNA on each of these items were a “match” with the known DNA sample obtained from Mr. Wawryk. [ 75 ] As a result of the DNA evidence, I find that Mr. Wawryk’s DNA was located on the balaclava and the ski mask that had been found in the backpack and also on the black hoodie found by Sgt Burke in a back garden along the scent trail followed by “Maverick”. ii.

Testing for Gunshot Residue [ 76 ] After Mr. Admasu and Mr. Wawryk were placed in cells at the North Division Police Station, Cst. Bhui took samples from the hands and face of both suspects. To do so he used a circular metal instrument with a head the size of a nickel with a slightly sticky adhesive. He used this instrument to “dab” the backs of both of the hands of each suspect and also the right and left sides of facial areas both suspects. This resulted in a total of 8 sampling stubs being taken. [ 77 ] Police submitted the 4 sampling stubs relating to the hands of Mr. Admasu and Mr.

Wawryk to the RCMP Forensic Science and Identification Laboratory in Ottawa (the Ottawa Lab) for testing. The sampling stubs relating to the facial areas were not sent for testing. [ 78 ] The testing and analysis of the results of the samples was supervised by Dr. Nigel Hearns, who was qualified to give opinion evidence in relation to the forensic examination, identification and

interpretation of gun shot residue. [ 79 ] Dr. Hearns testified that each of the sampling stubs submitted for testing were examined using a scanning electron microscope coupled with an energy dispersive x-ray spectrometer. Dr. Hearns reviewed the results of that analysis and concluded that one or more particles characteristic of gunshot residue was found on each sampling stub that had been used in relation to Mr. Admau’s hands. More specifically, Dr. Hearns testified that one particle characteristic of gunshot residue was found on the sampling stub from Mr.

Admasu’s right hand and two particles were found on the sampling stub in relation to Mr. Admasu’s left hand. [ 80 ] Dr. Hearns also testified that no gunshot residue was found on either of the sampling stubs that had been used in relation to Mr. Wawryk’s hands. [ 81 ] Based on the evidence of Dr. Hearns, I conclude that at the time that Mr. Admasu was in police custody shortly after his arrest he had gunshot residue on both of his hands. I also conclude that Mr. Wawryk did not have gunshot residue on his hands at that time. iii.

Testing of the Handguns, Cartridges and Bullets [ 82 ] As part of the investigation, members of the EPS sent a number of exhibits to the RCMP Forensic Science and Identification Laboratory in Vancouver (the Vancouver Lab) for ballistics testing. The items sent for testing included the following: • The 40-caliber handgun and the 45-caliber handgun that had been seized from the backpack found very near Mr. Admasu when he was arrested; • Exhibits seized by police during the search of the Britnell Blvd. parking lot near where the shooting of Mr.

Holly had occurred including five 40 caliber shell casings, four 45 caliber shell casings, three spent bullets; • Two 40 caliber shell casings found by police during a search of the area on 70 th Street just south of 129 th Avenue where several witnesses reported shots being fired from the van toward the police vehicles; • A bullet jacket recovered from the Mr. Holly’s jaw during the autopsy conducted by Dr.

Bannach. [ 83 ] The ballistics testing was undertaken at the Vancouver Lab by Christopher Kerr who prepared a report dated June 7, 2016 which was admitted into evidence as part of an Agreed Statement of Facts. Unfortunately, Mr. Kerr died after completing his report but prior to trial. For this reason, another employee of the Vancouver Lab, Mr. Kenneth Chan, reviewed the work of Mr. Kerr including his report and his working notes and photographs. Mr. Chan prepared a letter dated July 9, 2020 in which he concurred with the conclusions of the report of Mr. Kerr. [ 84 ] Mr. Chan testified at trial.

His qualifications as a forensic firearms and ammunition examiner were admitted by the Defence and he was therefore qualified to give opinion evidence at trial. [ 85 ] The report of Mr. Kerr and the opinion of Mr.

Chan was that: • the 40-caliber handgun that was examined had been used to fire the 40 caliber cartridge cases that had been submitted for testing; • the 45-caliber handgun that was examined had been used to fire the 45 caliber cartridge cases that had been submitted for testing; • Three of the four spend bullets that had been sent for testing had been fired from the 45-caliber handgun that had been examined, and

• The bullet jacket submitted for testing had been fired from the 40-caliber handgun that had been examined. [ 86 ] Based on the evidence of Mr. Chan, I conclude that the 40-caliber and 45-caliber handguns that had been seized from the black backpack found near Mr. Adamsu immediately after his arrest had been used to shoot at Mr. Holly and that one or more of those shots caused his death. I also conclude that the 40-caliber handgun found in the backpack had been used to shoot at police on 70 th Street just south of 129 th Avenue. iv.

Fingerprint Evidence [ 87 ] After the van was towed to a police facility in Edmonton, Det. Paul Kelly searched the vehicle with a view to, among other things, obtain fingerprints from the van. Det. Kelly was qualified as an expert to given opinion evidence in the area of the collection, development and comparison of fingerprints. [ 88 ] During his inspection of the van, Det. Kelly was able to identify and collect a series of 4 fingerprints from the interior window of the left sliding door of the van.

These fingerprints were from the left hand and consisted of prints from the ring finger, the middle finger, the index finger and the thumb. These fingerprints were sent to the national fingerprint data bank. Det. Kelly then received from the data bank a series of potential candidates to consider. As a result of the comparison undertaken by Det. Kelly, he formed the opinion that all of the fingerprints obtained from the window of the van were those of Tysean Wawryk. This opinion was not challenged by the Defence. [ 89 ] I accept Det. Kelly’s opinion and find that the Mr. Wawryk’s finger prints were found by Det.

Kelly on the interior of window on the left sliding door of the van. 4. Findings of Fact [ 90 ] As is apparent from the review of the evidence, there are numerous conflicts in the evidence. Some of the conflicts can be resolved and can give rise to findings of fact. Other conflicts present a situation in which it is simply not possible to make any findings. [ 91 ] I make the following findings of fact based upon the evidence tendered: 1. At approximately 9:00 pm on July 23, 2016, Mr. Holly and his Spouse left the west door of their apartment building at 432 Britnell Blvd. intending to walk to Mr.

Holly’s car that was parked facing west roughly ½ way between the apartment building and the western edge of the parking lot. 2. Two black men had been waiting outside of 432 Britnell Blvd. One was staged at the gazebo that was located immediately to the west of the building very near the west door. The second male was hiding beside a white van parked to the west of Mr. Holly’s vehicle. 3. Both men were young adults and both were wearing black hoodies. 4. The man at the gazebo was in possession of a loaded 40 caliber handgun. 5. The second man was in possession of a loaded 45 caliber handgun. 6. As Mr.

Holly and the Spouse exited the building, the Spouse saw the first man seated in an unusual way on a bench in the gazebo. They exchanged friendly greetings. 7. As Mr. Holly and the Spouse approached their vehicle, the second man came out from beside the white van that had been parked on the west side of the parking lot. This man began shooting at Mr. Holly, striking both Mr. Holly and the Spouse. Both fell to the ground. 8. At or about the same time, the first man shot his 40-caliber handgun toward Mr. Holly and then approached and shot Mr. Holly in the back of the head from very close range.

This shot left “gun powder stippling” on the scalp near the area of the entry point, as described by the Medical Examiner, Dr. Bannach. The bullet fractured the skull, passed through various parts of the brain and lodged in Mr. Holly’s jaw. 9. Mr. Holly died from the gunshot wounds. 10. The Spouse suffered serious injuries to her right wrist that were caused by one of the bullets striking her. Surgery was required and she is left with ongoing limitations as a result of the injuries. 11. The two shooters were wearing black or dark hoodies and at least one of them was wearing dark pants. 12.

Prior to the shooting a gold or brown mini van had been backed into a parking stall on the far western edge of the parking lot facing east very close to where Mr. Holly’s car had been parked and in close proximity to the area of the shooting. 13. The rear middle row of seats had been removed from the van. 14. After the shooting, the two shooters ran to the van and got into the right rear sliding door. In making this finding of fact, I have considered the evidence of one witness who testified that she saw one of the shooters get into the van through the driver’s door.

I do not accept this evidence because, of all of the eyewitnesses, I consider this woman to be the least reliable. 15. The van immediately drove away after the two shooters got into the rear sliding door.

16. The mini van travelled north for a few seconds and then turned east in the parking lot to travel past 432 Britnell before exiting onto Britnell Blvd. 17. As the mini van travelled north, one person was in the driver’s seat and a second person had moved into the front passenger seat. 18. A total of 3 persons were in the van when it left the parking lot. I come to this conclusion for several reasons. First, I find that the shooters got into the rear of the van through the right rear sliding door, which would not be expected if one of the shooters was to be the driver.

Second, the Spouse testified that the mini van had been moving prior to the shooters getting in. Third, the van began to leave the area while the rear sliding door was still open. As the van began travelling, but before the rear sliding door was closed, one person was in the driver’s seat and one person was in the front passenger seat. Thus at least one person had to be in the rear of the mini van to close the rear sliding door. There is no reliable evidence that a 4 th person was in the van. I find that 3 persons were in the van when it left the scene of the shooting. 19.

As the van left the area of the shooting, the right rear sliding door was open. However, by the time the van was in front of the lobby of 432 Britnell, the door had been closed. 20. Cst. Gabucci and Cst. Najmeddine first saw a van that matched the description of the suspect van approximately 11 or 12 minutes after the shooting at Britnell Blvd. 21. The driving time from Britnell Blvd to 66 th Street and Fort Road is approximately 10 minutes in normal traffic conditions and while travelling at the speed limit as described by Det. Dowie. 22.

Once Police made a u-turn to follow the van, it “took off” and began to travel at a high speed. 23. An unmarked police vehicle operated by Cst. Davis located the van in the area of 129 th Avenue and 68 th Street and began to pursue the van with its lights and siren activated. 24. Shortly after this pursuit began, the police vehicle operated by Cst. Gabucci joined in the pursuit by following the police vehicle that was operated by Cst. Davis. 25.

The driver of the van took extreme measures to attempt to avoid police including traveling at very high speeds through a residential neighbourhood and going through at least one stop sign. 26. As the van was travelling west on 129 th Street, the left sliding door of the van opened. One of the occupants of the van held a handgun out of the door and took several shots in the direction of the police vehicle that was immediately behind the van. 27. At the same time that the shots were being fired, a man was sitting in the passenger seat of the van, leaning over the driver of the van.

The witness who was outside his home on 70 th Street watching these events testified that the passenger was firing a handgun as he leaned over the driver. I am not satisfied that this evidence is sufficiently reliable to permit me to find that shots were being fired by the passenger because the witness was not in a good position to see the actions of the passenger and because the description seems improbable. Instead, I conclude that it is more likely that the witness saw the passenger lean over the driver and at the same time heard shots fired and assumed that the shots had come from the front seat passenger.

Because the witness was on the right side of the van, he did not have any view of the man at the left sliding door who was firing a handgun at police. Furthermore, a subsequent search of the area located shell casings that were associated with only the 40 calibre handgun. 28. I therefore find that at the time that the shots were fired at police on 70 th Street south of 129 th Avenue, there were 3 persons in the van, the driver, the person in the front passenger seat leaning over the driver and the person in the rear of the van with his arm out of the left rear sliding door firing shots at the police vehicle. 29.

The pursuit continued after the shooting. The van travelled at a high-speed west on 127 th Avenue and went though the red light at 82 nd Street. At that time, the two police vehicles which were pursuing the van slowed for reasons of safety and lost sight of the van. 30. Cst. Ross was parked on the south side of 127 th Avenue west of 82 nd Street. She first observed the van at or about the time that the other police officers lost sight of it. She began following the van west on 127 th Avenue. 31. The van turned right into an alley between 88 th Street and 87 th Street and travelled north through the alley. 32.

None of the police vehicles followed the van into the alley. Instead they travelled north on 88 th Street and also on 87 th Street. 33. The van eventually came to a rest in another alley behind 86 th Street just north of 130 th Avenue. 34. The occupants of the van fled on foot. 35. The abandoned van was found by Cst. Davis and Cst Hudson at 9:16 pm. 36. The pursuit of the van lasted a total of approximately 5 minutes, from approximately 9:11pm to approximately 9:16 pm. 37. Sgt. Burke and police service dog “Maverick” arrived at the abandoned van at approximately 9:18 pm.

After ensuring that no other persons remained in the van, Sgt. Burke permitted “Maverick” to follow a scent trail from the van. “Maverick” followed the scent trail west in an alley, through the garden of one of the nearby houses and then north on 87 th Street to St. Matthews School. 38. As Sgt. Burke and “Maverick” were following the scent trail, Cst. Von Bieker and her partner Cst. Kato were travelling in their

police vehicle west on 132 nd Avenue approaching St. Matthew’s School. 39. Cst. Von Bieker saw a black man holding a black backpack in his hands. The man was to the east side of St. Matthews School. I make this finding of fact notwithstanding that Cst. Von Bierker made no notation of this in her notebook. While it is preferable for police officers to record all material facts in their notes and reports, the failure to do so does not necessarily mean that evidence that is unrecorded cannot be accepted as a fact. In this case, I am satisfied that Cst.

Von Bieker was a highly reliable witness and I conclude that she accurately testified as to what she saw at the school yard. 40. Almost immediately after seeing the man with the black backpack, Cst. Von Bieker turned her vehicle around to assist with arrest of Mr. Wawryk who was at that time walking east on 132 Avenue north east of St. Matthew’s School 41. At the same time that Cst. Von Bieker was turning her vehicle around, Sgt Burke and Maverick entered the school yard and encountered a man moving in a north east direction from an alcove at the school. Sgt.

Burke gave directions to this man which were complied with. The man was then arrested. He was identified as Mr. Admasu. 42. Mr. Admasu was arrested by Cst. Burke at 9:23 pm, approximately 5 minutes after Sgt Burke arrived at the abandoned van with “Maverick” and approximately 23 minutes after the shooting at Britnell Blvd. 43. When he was arrested Mr. Admasu was sweating and out of breath. 44. Almost immediately after Mr. Admasu was arrested by Sgt. Burke, Mr. Wawryk was arrested by other members of the EPS on the north side of 132 nd Avenue near 88 th Street. 45. While Mr. Admasu was being arrested, Cst.

Silliphant located a black backpack in the alcove of the school very near to where Mr. Admasu was arrested. 46. A search of the back pack resulted in police seizing a 40-calibre handgun, a 45-caliber hand gun, a ski mask, a bandana and other items. 47. After the arrest of Mr. Admasu, Cst. Burke began to return to his police vehicle by following along the scent track that Maverick had followed. When he arrived in the area where the scent track went over the fence in the alley between 130 th Avenue and 130A Avenue, he located an item of clothing that was subsequently seized. Mr.

Wawryk’s DNA was found on this item of clothing. 48. Ballistics testing of the hand guns and the shell casings and bullets found at Britnell Blvd and shell casings located on 70 th Street south of 129 Avenue confirmed that both of these handguns had been used during the shooting of Mr. Holly and that the 40-caliber handgun had been fired during the police pursuit. 49. Mr. Admasu’s DNA was found on both of the handguns. 50. Mr. Wawryk’s DNA was found on the ski mask and bandana which were seized from the backpack. 51. Mr. Wawryk’s DNA was not found on either of the handguns. 52. Mr.

Wawryk’s fingerprints were found on the interior of the window on the left sliding door of the van. 53. Gunshot residue was found on both of Mr. Admasu’s hands. 54. No gunshot residue was found on either of Mr. Wawryk’s hands. [ 92 ] It is not possible to make any additional findings of fact in relation to the evidence given by the eye witnesses at Britnell Blvd. It is not possible to come to any conclusion as to the description of the suspects other than in the most general way.

It is not possible to come to any conclusion as to the clothing that the shooters wore, other than in the most general way as I have described. Further, it is not possible to make any findings of fact in relation to the clothing worn by the driver of the van or the person in the front passenger seat as the van left the parking lot at Britnell Blvd.

The evidence in this regard is conflicting and cannot be reconciled. [ 93 ] There is no evidence as to what transpired between the time that the van left Britnell Blvd and the time that the van matching the description was encountered by police approximately 11 or 12 minutes later.

As a result, I am not able to make any findings of fact in relation to that period of time. [ 94 ] There is no evidence as to what transpired between the time that the van turned north from 129 th Avenue in an alley between 88 th Street and 87 th Street until the time that the van was located in the alley behind 86 th Street north of 130 th Avenue. Thus, I am not able to make any findings of fact in relation to this time period which was likely less than one minute. [ 95 ] There is no reliable evidence as to the identity of the third person in the van.

There is no evidence as to where or when this person left the van, although it is most likely that the person was able to get out of the van after police lost sight of the van when it entered an alley north of 127 th Avenue between 88 th Street and 87 th Street or alternatively when the van was abandoned. [ 96 ] More specifically, I am not able to make any findings of fact in relation to the wallet that was found on the left side of the windshield of the van under the windshield wiper.

The information in this wallet had clear objective ties to a man who resided within 1 block of the alley that the van travelled north from as it left 127 th Avenue and within 2 to 3 blocks of the point at which the van was abandoned. The evidence does not permit me to draw any conclusion as to whether this person was or was not an occupant of the van at any time.

5. Inferences from Proven Facts [ 97 ] When I consider the proven facts, I conclude that a number of inferences can be made from those facts. I will summarize some of those inferences: A. Was Mr. Admasu in possession of the backpack prior to arrest? [ 98 ] I infer that Mr. Admasu was in possession of a black backpack containing the handguns when he was in the school yard prior to the arrival of Sgt. Burke and “Maverick”. In making this inference, I accept the evidence of Cst. Von Bieker that she saw a black man holding a black backpack in his hands very shortly before Sgt. Burke arrived.

I accept the evidence of Sgt. Burke that when first seen, Mr. Admasu was walking from the alcove of the school in a north-easterly direction in the school yard. Immediately after Mr. Admasu’s arrest, a black backpack was discovered in the alcove. The black backpack contained two handguns. Forensic DNA testing of the handguns revealed Mr. Admasu’s DNA on both handguns. [ 99 ] I infer that Mr. Admasu was in possession of the black backpack immediately prior to his arrest. I also infer that Mr. Admasu was in possession of the handguns in the backpack. I infer that he had knowledge and control of the handguns. B.

Was Mr. Admasu tracked from the abandoned van? [ 100 ] Mr. Admasu argues that there is no evidence as to what scent “Maverick” tracked from the abandoned van. He argues that it is very likely that the dog was tracking the scent of Mr. Wawryk. Thus Mr. Admasu argues that there is no evidence that he was ever in or near the abandoned van. There is no fingerprint evidence that ties him to the van. [ 101 ] For several reasons, I conclude that “Maverick” tracked Mr. Admasu’s scent from the abandoned van to the school yard where he was arrested. First, Mr.

Admasu’s argument ignores the unchallenged opinion of the qualified expert, Sgt. Burke, that the person he arrested in the school yard had been tracked by “Maverick” from the abandoned van. Second, Mr. Admasu’s argument ignores the evidence of Sgt. Burke that “Maverick” can track the scents of two persons simultaneously, provided that the two persons were close to each other. He explained that this is done when the dog moves back and forth from one scent to the next while tracking. Third, Mr.

Admasu’s argument ignores the fact that he was arrested in very close proximity to the backpack that contained the two handguns that had been used during the shooting of Mr. Holly and which had been transported in the van. Fourth, Mr. Admasu was out of breath and sweating when he was arrested. [ 102 ] There is no reasonable inference other than that Mr. Admasu had been in the van and left a scent as he ran from the van to the school yard where he was arrested. C. Was the van the same as that involved in the shooting at Britnell? [ 103 ] I infer that the van that was involved in the shooting of Mr.

Holly at Britnell Blvd. was the very same van that was abandoned in the alley and from which Mr. Admasu had run prior to his arrest in the school yard.

I come to this inference for a number of reasons: • The descriptions of the van from the eyewitnesses at Britnell Blvd, while not identical, provided a good description that is very consistent with the description of the van that was abandoned in the alley • The surveillance video from the lobby of Britnell 432 show a van that seems to be identical to the van abandoned in the alley. • When the van left Britnell Blvd, the driver and the front passenger were described uniformly by the witnesses as black men. • When the van matching the description was seen by Cst. Gabucci and Cst.

Najmeddine near 66 th Street and Fort Road, the driver and the front passenger were described as black men. • The driving time measured by retired Det. Dowie from Britnell Blvd to 66 th Street and Fort Road (10 minutes) corresponds almost precisely with the time that followed the shooting before it was seen by Cst. Gubicci and Cst. Najmeddine (11 to 12 minutes) • Once it was first seen by police, the van was out of sight of police for only two brief periods: first for a few seconds after Cst. Gubucci and Cst.

Najmeddine lost sight of the van at 66 th Street and Fort Road until it was seen a few second later by Cst. Davis and Cst. Hudson; and second during the time that the van was travelling north in the alley between 88 th Street and 87 th Street until police arrived at the abandoned van. • The two handguns that had been used in the shooting of Mr. Holly were found in a backpack that Mr. Admasu was in possession of immediately prior to his arrest after he had run from the abandoned van. [ 104 ] There is no other reasonable inference possible on the evidence.

I conclude that the van in which the shooters escaped at Brintell Blvd was the very same van that was found abandoned in the alley. D. Was Mr. Admasu in the van to the point of abandonment? [ 105 ] I infer that Mr. Admasu was in the van from the time it left Britnell Blvd until it was abandoned in the alley near the school yard where the arrest took place. I come to this conclusion for a number of reasons:

• When the van left Britnell Blvd, the eyewitnesses described the driver and the front passenger as black men. • When the van was first seen by police approximately 11 or 12 minutes later, the front passenger and the driver were both persons with black skin colour. • Mr. Admasu is a young black man, as described by all of the eyewitnesses. • The handguns that had been used in the shooting of Mr. Holly were in Mr. Admasu’s possession immediately prior to his arrest. • The handgun that had been used in shooting at the police during the pursuit was in Mr.

Admasu’s possession immediately prior to his arrest. • Both of the handguns had Mr. Admasu’s DNA on them. [ 106 ] While Mr. Admasu did not advance any argument on this point, I have considered the possibility that during the 11 or 12 minutes between the shooting at Britnell Blvd and the first sighting by police, Mr. Admasu might have gotten into the van. There is simply nothing to support this and thus it amounts to nothing more than speculation. As a result, I reject this potential explanation for him being in the van when it was abandoned. [ 107 ] Because Mr.

Admasu was in the van when it left Britnell Blvd. then, by definition Mr. Admasu was at Britnell Blvd. at the time that Mr. Holly was shot and killed. 6. Photo Lineup Evidence [ 108 ] While in hospital waiting for surgery to repair the damage to her right wrist, the Spouse was presented with a photo lineup array by two members of the EPS, Det. Derek Holowaychuk and Staff Sgt. Kurt Martin. In a pre-trial application, I ruled that the evidence of the Spouse regarding the photo lineup process was properly admissible: R v Admasu , 2021 ABQB 150 .

That ruling was based on evidence tendered by way of an Agreed Statement of Facts. [ 109 ] At trial, the evidence of Det. Holowaychuck was given immediately before the testimony of the Spouse. Det Holowaychuck had no prior involvement with this investigation and he did not know the identity of the suspect or whether the suspect’s photograph was contained within the photo array. Det Holowaychuck described his involvement in presenting the photo lineup. A video of the photo lineup process was played to him and he identified it as the process that he participated in with the Spouse.

A disc containing the video and the photo pack of the photo lineup were collectively marked as Ex 8, without objection from the Defence. [ 110 ] The photo lineup was presented to the Spouse approximately 16 hours after the shooting. She reviewed the photo lineup in two separate sequences and in each sequence, when the photo of Mr. Admasu was presented, she made statements in writing on the photo pack and also made verbal statements which are recorded on the video. [ 111 ] During the first sequence, Mr. Admasu’s photograph was the third to be viewed.

The video recording of the photo lineup shows that when she turned the photograph over, she carefully looked at it and then signed her initials beside the word “yes” after the question “Can you identify the person in the photograph?”. As she did so she said: “I think so”. She was then asked by police for comment and she responded by saying: “ Maybe the gentleman who was seated on the bench” “ Possibly the gentleman that was sitting on the bench that was behind us” (emphasis added) [ 112 ] When the photographs were shown during the second sequence, she looked at Mr.

Admasu’s photograph, tapped her finger on the photograph several times and said: “I think he possibly could have been the first shooter that was seated at the bench” (emphasis added) [ 113 ] The statements provided by the Spouse lacked certainty. In my reasons on the voir dire , I concluded that the Spouse’s evidence regarding the photo lineup was admissible and the extent of the probative value of the photo lineup evidence could only be determined in the context of all of the other evidence. [ 114 ] When she testified at trial, the Spouse did not identify Mr. Admasu as one of the shooters.

She did not adopt the statements that had been given as part of the photo lineup process. She did not testify that she had attempted to give an accurate identification at the time of the photo lineup. On the contrary, after initially acknowledging that she had “somewhat” of a memory of the photo lineup, she professed to have no memory of any of the important details. She explained that while waiting for surgery she was “so drugged up” that she did not remember. She explained that she was taking pain killers and anti anxiety medication at the time and that she was tired and groggy.

She also testified that she did not realize that she was not required to participate in the photo lineup process and if she had been given a choice, she would not have participated. [ 115 ] During her evidence at trial, the Spouse watched the video of the photo lineup, but was not able to explain what she meant by the responses that were recorded on the video. She did not confirm that her recorded statements were accurate or that she intended to provide accurate information as part of the photo lineup process.

On further questioning by the Crown, she explained that she did not know what was expected of her during the photo lineup process.

[116] In assessing the evidence of the Spouse, it is necessary to consider the circumstances in which the photo lineup was presented. Staff Sgt. Martin was present at the hospital and video recorded the photo lineup process. He testified that the lineup was presented inconditions that were not optimal. In particular, he noted that it was a “chaotic” situation in the room at the time. [117] The video recording of the photo lineup process confirms Staff Sgt. Martin’s description of the situation being “chaotic”. TheSpouse was in a hospital bed.

Another patient was in the same room nearby with a number of visitors talking to the other patient. Theirvoices are recorded on the video. At one point during the photo lineup process, a nurse interjected to announce that she was ready totake the Spouse to surgery and wanted to know whether she needed to use the washroom prior before going to surgery. The photo lineupcontinued only after Det. Holowaychuk told the nurse that he needed 10 minutes to complete his work. [118] The injury to the Spouse’s right wrist complicated the photo lineup process.

The wrist and hand were bandaged and she had touse her left hand to write the responses on the photo pack. Instead of providing written comments, she made oral statements that werecaptured on the video recording. [119] Neither Det. Holowaychuk, nor Staff Sgt. Martin made any inquiries regarding the medication that the Spouse was takingbefore the photo lineup process began. However, both testified that they had no concerns regarding the Spouse’s state of mind or herability to understand the process. [120] The video recording of the photo line up provides a very clear picture of the circumstances.

Despite the chaotic situation, it isapparent from the recording that the Spouse was alert and fully cooperative throughout the process. She appeared to be attentive whenpolice provided instructions regarding the process. She appeared to be fully engaged as she reviewed the photographs and was careful inher answers. There is no indication in the video recording that the Spouse was “so drugged up”. To the contrary, every indication on thevideo suggests that, despite any medication she was taking at the time, she was fully aware of what was happening.

All of her responsesappeared to be carefully considered, rational and reasonable. The video recording strongly suggests that the Spouse fully understood theprocess and was a willing participant. [121] It is also important to consider the demeanor of the Spouse when she testified at trial. At the outset of her evidence, she wasvery emotional but within a few minutes she calmed down and was able to proved a clear picture of the events. [122] The Spouse was able to give detailed evidence of what she observed the during the relevant times. She was cooperative andresponsive to all of the questions asked of her.

She appeared to be a completely credible and largely reliable witness. [123] There was a palpable change in her demeanor when she was questioned in relation to the events of the photo lineup. She wasimmediately resistant to questioning on this topic and diverted the questions, claiming a complete lack of memory of any of the importantdetails because of the effects of medication. [124] Ultimately, she explained that she did not feel good about giving evidence and did not want to be present testifying.

I note thatshe attended court in the company of two police officers who escorted her into the courtroom through the Judge’s entry from the privatesecured area behind the courtroom. She insisted that nothing had happened to persuade her not to testify. It was clear that she washighly sensitive to this question since she interrupted the Crown and provided the response before the full question had been asked. Shesaid that she preferred to not elaborate on this topic. [125] I do not believe the Spouse when she says that she does not remember the photo lineup.

I do not believe her when she says thatshe was “all drugged up” and that her memory was affected by the medication. Her evidence in this regard is completely inconsistentwith what is observed on the video recording. I am satisfied that the Spouse has some other motivation for distancing herself from herparticipation in the photo lineup. However, I will not speculate as to her present motivation. [126] In light of the viva voce evidence given by the Spouse at trial, it is now necessary that I consider the use that can be made ofvideotape of the photo lineup process and of the photo pack.

Specifically, I must determine whether the statements recorded on the videoand written on the photo pack can be used to prove the truth of the contents of statements. [127] The photo line up evidence consists of out of court statements which were tendered by the Crown to attempt to demonstrate thatthe Spouse had identified Mr. Admasu as one of the shooters. Mr. Admasu argues that the photo lineup evidence is not properlyadmissible into evidence to prove the truth of the contents.

Conversely, the Crown argues that the photo line up evidence is properlyadmissible into evidence on two grounds; first as prior identification evidence and; second utilizing the principled exception to thehearsay rule. A.

Prior Identification Evidence [128] Where out of court statements identify the accused as the person who committed the offence, they are admissible as prioridentification evidence in only 2 circumstances: i. where the witness testifies at trial, identifying the accused during the sworn testimony, or; ii. where the witness is unable to identify the accused at trial but can testify that he or she previously gave anaccurate description or accurately identified the accused. [129] If one of these conditions is not met, then the prior identification evidence is not admissible: David Watt, Watt’s Manual ofCriminal Evidence (Toronto; Thompson Reuters, 2017) [Watt’s Manual of Criminal Evidence]; David M Paciocco & Lee Steusser, The Law of Evidence, 7th ed (Toronto: Irwin Law, 2015) [Paciocco & Steusser] at page 146; R v Tat (1997), (ON CA), 35OR (3d) 641,117 CCC (3d) 481 at paras 37 and 41 (ONCA); R v Starr, 2000 SCC 40 at para 221; R v Coutu, 2008 MBCA 151 at paras66 – 92.

[130] The Crown concedes that the Spouse did not make an in-court identification of Mr. Admasu as one of the shooters. However,the Crown argues that the second mode for admissibility of the prior identification evidence is satisfied because the Spouseacknowledged the prior identification on at least two occasions as she testified. Firstly, in cross-examination she was asked whether thepolice acted in a more “animated” fashion when she selected the photograph of Mr. Admasu. She acknowledged that police did act insuch a way and that she felt reassured by her selection. She said “...

I was questioning so when I asked, that almost seemed like the rightanswer”. The Crown argues that this is an acknowledgment by the Spouse of having made the prior identification. Secondly, also incross-examination, the Spouse was asked about her second review of the photo array. She agreed that the earlier selection of Mr.Admasu’s photograph had an influence on her in making the selection for the second time. [131] The Crown argues the cross-examination demonstrates that the Spouse had made the selection of Mr. Admasu’s photographand that for all practical purposes this amounts to an adoption of the selection.

The Crown acknowledges that the Spouse clearly tried todistance herself from the photo line up in the ways I have previously described, and for that reason her evidence on identification needsto be carefully scrutinized. Nevertheless, the Crown argues that she acknowledged having previously identified Mr. Admasu and thatsatisfies the admissibility criteria. [132] When I consider the admissibility of the photo line up evidence, I need to assess the whole of the Spouse’s evidence and notsimply rely on two isolated questions in cross-examination.

It was very apparent in cross-examination that the Spouse’s answers weresimply a further attempt to distance herself from the photo lineup or to weaken whatever value the photo line up evidence had. [133] The issue is whether the Spouse testified that she “previously gave an accurate description or made an accurate identification”:Starr at para 221. On the totality of the Spouse’s evidence, I conclude that she did not do so. [134] On multiple occasions in her evidence, the Spouse professed no memory of the identification of Mr. Admasu. For example, inrelation to that portion of the video of the photo line

[…]