R v Dubroy-Clement, 2021 ABQB 418

Court of Queen’s Bench of Alberta Citation: R v Dubroy-Clement, 2021 ABQB 418 Date: 20210528 Docket: 170570618Q1 180462467Q1 180462533Q1 180462533Q2 Registry: Peace River Between: Her Majesty the Queen - and - Kyle Dubroy-Clement Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice E.J. Simpson _______________________________________________________ Table of Contents Introduction . 3

Issues . 3 Decision . 3 Facts . 4 Brief Statements on the Law and Position of the Parties . 9 Reasonable Doubt 9 R v W(D) 10 Party Liability . 10 Post-Offence Conduct Evidence . 11 Evidence . 13 Vetrovec Witnesses . 13 The Witness - Lucas Lundstrom .. 13 The Witness – Paige Burkinshaw .. 15 Evidence of the Accused and Application of W(D) 17 Knowledge, Actions, and Times . 17 May 10, 2017 . 19 May 11, 2017 . 19 May 12, 2017 . 20 May 13, 2017 . 21 May 14 and 15, 2017 . 22 May 16, 2017 . 22 May 17, 2017 . 26 Analysis of the Offences . 26 Robbery or Impulsive Killing Followed by a Theft 26 Dubroy-Clement as a Party . 27 Aiding . 28 Post Offence Conduct of Dubroy-Clement 33 Armed Robbery . 34 Abetting . 36 Common Intention . 37 Robbery with a Firearm .. 37 Manslaughter 37

Summary . 39 Introduction [ 1 ] This trial involved a four-count Indictment in relation to the May 16, 2017 killing of Lawrence Butt (“Butt”) (aka Lawrence Villeneuve). Blake Murphy (“Murphy”) shot Butt from close quarters in the upper torso with a sawed-off shotgun while in a small RV trailer (the “RV Trailer”) occupied by Butt and the accused Kyle Dubroy-Clement (“the accused” or “Dubroy-Clement”) near Peace River, Alberta.

Murphy entered a guilty plea to a charge of second-degree murder. [ 2 ] At the commencement of this trial, the accused entered a guilty plea to a charge of assisting Murphy for the purpose of enabling him to escape knowing that Murphy had murdered Butt and to a charge of break and enter of the dwelling house of Butt’s

mother, Marianne Villeneuve, from which he stole money. [ 3 ] This trial dealt with the charges of robbery with a firearm, contrary to s 344(1)(a.1) of the Criminal Code, RSC 1985, c C-46 and manslaughter with a firearm, contrary to s 236(a) . [ 4 ] The Crown alleges Dubroy-Clement participated as a party either by aiding or abetting Murphy to rob Butt. He is therefore guilty of the charge of robbery with a firearm. [ 5 ] The Crown further alleges that the accused formed a common intention to rob Butt; however, during the robbery Murphy murdered him.

Dubroy-Clement, the Crown alleges, could reasonably have foreseen the risk of non-trivial and non-transitory bodily harm being caused to Butt during the course of the robbery. He is therefore guilty of manslaughter. Issues [ 6 ] The following issues were before me for determination: 1. Was the accused a party to the robbery of Butt on account of his aiding or abetting Murphy? 2. Alternatively, did the accused and Murphy form an agreement or common intention to rob Butt and to help each other to rob him? 3.

If the accused formed an agreement with Murphy to rob Butt, could the accused have reasonably foreseen the risk of bodily harm to Butt which was neither trivial nor transitory? Decision [ 7 ] Based upon the evidence, I conclude the following: (

a) The accused aided Murphy in robbing Butt. Violence was used against Butt and he was fatally wounded either immediately prior to or following the theft from Butt. I am not satisfied that the accused was aware that Murphy was in possession of a firearm prior to Murphy removing the shotgun from a bag and shooting Butt. I therefore find Dubroy-Clement guilty of robbery under s 343(

b) of the Criminal Code , by virtue of s 21(1)(b) , and not of armed robbery under s 343(d). (

b) The accused did not form an agreement or common intention with Murphy to rob Butt and therefore he is not guilty of manslaughter by virtue of s 21(2) of the Criminal Code . [ 8 ] Given the wording of the Indictment, the issue of whether or not a firearm was used in the commission of the robbery is relevant to the applicable sentence and is not an essential element of the offence of robbery. Facts [ 9 ] The Crown and the Defence entered an Agreed Statement of Facts (“ASF”) in this proceeding. What follows is an edited version of the ASF: INTRODUCTION 2.

In the early morning hours of Tuesday, May 16, 2017 an individual by the name of Blake Murphy (“Murphy”) shot and killed Lawrence Butt (“Butt”; “the Deceased”) at the Pine Ridge Campground just outside of Peace River, Alberta. Murphy plead guilty to second degree murder for his role in the death. 3. Murphy, who was at the time of the murder residing in Grande Prairie, arrived in town some hours before in the company of Paige Burkinshaw (“Burkinshaw”). 4. At the time of his death, Butt (also known as Lawrence Villeneuve) was involved in the drug trade in Peace River.

He was actively trafficking and appeared to be quite successful. He was 20 years old and known by the nickname “the Kid.” 5. Murphy was at the time associated with individuals involved in the drug trade in the Grande Prairie area. THE DECEASED BEFORE THE MURDER 6. Butt was living with his mother Marianne Villeneuve (“Ms. Villeneuve”) at the beginning of May, 2017, at a residence located on 99th Street in Peace River, Alberta. 7. Butt and his mother decided Butt would move out. Ms. Villeneuve was planning on relocating, and she wanted her son to be more independent.

Butt was concerned for his mother’s safety as the residence had been broken into before by people looking for him. Butt was looking for a trailer to stay at so he could keep his dog, called Girl, with him. 8. On Monday, May 15, 2017, Butt came home with a male friend unknown to Ms. Villeneuve and said his friend had lent him a camper. 9. Butt purchased a little car from his mother - a green Pontiac Wave - paying $2,000.00 in $20 bills. He loaded his

belongings into the car intending that his friend would drive it as he did not have a driver’s licence. 10. He asked Ms. Villeneuve not to stay at the house for fear something would happen, but she disregarded this request. 11. Butt had a quantity of cash - $10,000.00 in $20 bills - in a black bag and asked Ms. Villeneuve to hide it for him. She offered to hide it in her truck, but Butt declined, saying he would use his usual hiding spot. 12. Ms. Villeneuve observed Butt in his bedroom, kneeling down in his closet. It appeared he removed a board and put something into the space.

Normally Butt did not share this kind of information with his mother. [No Paragraph 13 in the ASF] Pine Ridge Campground 14. On the same day that he left his mother’s residence, a truck belonging to Lucas Lundstrom (“Lundstrom”) pulled a recreational vehicle trailer into a camping spot at Pine Ridge Campgrounds (the “RV Trailer”), placing it next to the already present trailer belonging to the Accused around noon. This was in accordance with an agreement the Accused had reached with the campsite manager, Mark Senger, to share one campsite and save money. 15.

During the evening, Butt arrived at the newly-arrived RV Trailer and examined it with the Accused. He later returned close to 12:00 am with the newly purchased Pontiac Wave. 16. By about 3:30 am, Murphy and Burkinshaw had arrived at the campground in a white Kia Rio. 17. Murphy, Burkinshaw and the Accused were all in the RV Trailer visiting with Butt. 18. Murphy had brought a shotgun in a bag. At some point Murphy pulled out the shotgun from the bag and shot Butt in the torso. 19. All three left the scene of the shooting in the Kia Rio. 20. At some point Murphy instructed the Accused to dispose of the RV Trailer.

DISPOSAL OF THE RV TRAILER 21. The Accused enlisted the aid of Lundstrom in getting rid of the RV Trailer. 22. Lundstrom was charged and pled guilty to being an accessory after the fact to murder for his role in assisting with the disposal of the RV Trailer. 23. As part of Lundstrom’s involvement, the RV Trailer was taken from the Pine Ridge Campground and deposited on Township Road 810, sometimes referred to as Reno Road. The Trailer is Found 24. On May 16, 2017, a call came in through the Alberta wildfire reporting line (“310-FIRE”) regarding a fire on Reno Road towards Kimiwan Tower. 25.

Brett Casey (“Casey”), then employed in the Peace River area Wildfire Management Branch responded. He communicated with the dispatch centre for firefighters in Northern Sunrise County. This led to Julien Bergeron (“Bergeron”), the deputy fire chief, being dispatched in a command vehicle to the scene. 26. Casey was first on scene, but waited for Bergeron to arrive. It appeared to Casey that the fire was in its final stages and involved a trailer. 27. Bergeron describes arriving on the scene around 5:30 pm. He too believed the fire was dying, having been burning for some time.

The camper was smouldering and some grass had lit on fire, but due to high humidity in the vegetation had extinguished itself. 28. Chief Bergeron and Casey assessed the scene and agreed that the fire would not reignite and no suppression activity was needed. Bergeron used a thermal imaging camera to check for high temperatures and did not see any. There was some smoke, but no flames seen. Based on his observations that only metal remained and the plastic was all consumed, he estimated the fire had been burning for at least 3 hours. 29. A photograph of the scene was taken by Casey shortly after his arrival. 30.

Bergeron contacted Cpl David Browne of the Peace River RCMP and advised him about the fire. At that time there was no indication of the significance of the trailer, and Cpl Browne assumed it was a property matter, tasking Cst Hoggins to investigate and see if the remains of the trailer could be towed and the owner identified. 31. A tow company was contacted to remove the trailer, but they could not locate it in the dark. BREAK AND ENTER AT VILLENEUVE RESIDENCE 32. The next day, Wednesday, May 17, 2017, Ms. Villeneuve was on Facebook and discovered Butt’s dog Girl was at the SPCA.

When she spoke to the SPCA she learned Girl had been found on Reno Road close to a burnt trailer.

33. She had spent the previous night at her sister’s place. She left to pick up the dog and do errands, and then planned to go looking for her son. 34. After picking up Girl, Ms. Villeneuve decided to drop the dog off at her own house as she anticipated she could be looking for her son for a while. 35. Arriving at home around noon, she realized her residence had been broken into through the kitchen window. 36. She went to the hiding place where she believed her son had stashed the bag of money and observed the board covering the spot was out of place.

She felt inside the compartment and discovered it was empty. 37. She reported the break-in to police and told the police her son’s dog had been found on Reno Road close to a burnt trailer. POLICE BEGIN TO REALIZE THE SIGNIFICANCE OF THE RV TRAILER 38. Having received the above information about Reno Road and realizing the potential connection, Cpl Browne requested forensic investigators attend the location of the burned trailer with regular members to see if they could locate human remains. 39. Sgt Vogel and Cst Bauer, forensic investigators, attended at the trailer’s location at about 5:28 pm. 40.

The trailer appeared to be a recreational vehicle style of trailer (“RV”) approximately 16 feet in length. The tires were gone along with almost everything except the metal structure, primarily the bed or platform portion of the RV. 41. Human remains were found in the driver side rear corner of the trailer with the shoulders arranged towards the driver side rear and the feet towards the RV centre front. 42. These were the remains of the Deceased, although he could not be identified visually; skin and tissue had been largely burned away. 43.

The Major Crimes Investigative Team of the RCMP was contacted by the investigators on scene and containment set up to hold the location until the area could be processed and the remains of the Deceased removed to be sent to the Medical Examiner for autopsy. THE SCENE OF THE BREAK AND ENTER IS EXAMINED 44. Cst Bauer and Sgt Vogel proceeded to examine Ms. Villeneuve’s residence for evidence regarding the break and enter. 45. They observed the hiding spot, which Cst Bauer referred to as a board removed from a built-in shoe rack in the closet to access a hidden space. 46.

They found other potential hiding places where panels could be removed to provide access to hidden spaces. 47. Cst Bauer observed that it appeared the residence had been searched for hidden locations or items. The toilet tank was partially removed and cedar planks in the unfinished basement had been pried away from the wall partially. 48. Using contrasting powder, Cst Bauer attempted to obtain fingerprint impressions. 49. He was able to secure several impressions from the kitchen window point of entry.

He located a set on the white metal frame of a window pane brought by the initial investigator (before the connection to these events were realized). Of these, he later conducted a comparison and determined one to be a match for the Accused’s right thumb. This was designated during his investigation as the “R2” impression. 50. According to Cst Power, who secured the window, the side that this print was located on would have put it on the exterior of the residence. 51. On his own attendance at the scene, Cst Bauer obtained another impression on the frame of one pane still in place.

Based on the anatomical positioning of the impressions, Cst Bauer determined the prints were consistent with someone grabbing the edge of the window from inside the residence. One of these prints, designated by him as “RS”, was later identified as being the right index finger of the Accused. MURPHY AND BURKINSHAW ON THE ROAD 52. Some time after the murder, Burkinshaw and Murphy left the Peace River area and headed towards Edmonton in the Kia Rio. 53. They checked into a hotel in the Edmonton area at around 12:30 pm on May 16, 2017: the Yellowhead Inn. 54.

They went to the West Edmonton Mall and spent a few hours there, making a number of small purchases. 55. On May 18, 2017, they checked out of their hotel. 56. On May 19, 2017, the Kia Rio fled from a police check-stop. 57. On May 20, 2017, the Kia Rio was located by police responding to a complaint that a vehicle had been dumped on private property in the Mayerthorpe area. 58. Cst Donnelly of Edson RCMP Forensic Identification

Section (“FIS”) examined the vehicle. He located receipts matching up to

purchases made by Murphy and Burkinshaw at West Edmonton Mall. A fingerprint impression was taken of the exterior of the driver’sdoor that he later matched to Murphy and he swabbed the steering wheel for DNA as well. 59. A match came back to Murphy. 60. Sneakers located in the vehicle were tested for DNA and came back with the DNA of the Deceased as well as that of Murphy. 61. Other items were located in the vehicle matching that seen in pictures of Murphy, including a hat and a baseball bat. 62.

On the backseat of the vehicle a Samsung phone (referred to by investigators as “Exhibit 609” or the “Samsung phone”) wasseized by investigators. SEIZURE OF THE IPHONE - EXHIBIT 006 63. On May 18, 201[7] a phone was seized from the vehicle of Madison Brent, the girlfriend of the Accused, by Cst Pope and S/SgtMcChoshen. 64. This item is referred to during the investigation as Item or Exhibit “006” or the “iPhone”. THE PHONE DATA ANALYSIS 65. Both phones referred to were submitted to Edmonton Technological Crime Unit (“ETCU”) for analysis. 66.

Civilian Member (“CM”) Geoff Rempel (“Rempel”) conducted the initial analysis of each phone’s contents, providing anextraction of some data or information and a report to the investigators. Due to the presence of pass codes, Rempel advised further workwould have to be done. 67. From the RCMP lab in Ottawa, CM Frank Maloney assisted in this regard, providing further extraction and passing along theresults of his use of software tools to retrieve data on the phone. 68. This information was ultimately consolidated and built into a coherent data picture by an analyst, CM Symonds. THE AUTOPSY 69.

The Deceased’s body was transported to Edmonton where an autopsy was conducted by Dr. Bannach and a report prepared onAugust 1, 2017. 70. The Autopsy confirmed that the Deceased had died as a result of a shotgun blast to the torso, with pellets perforating the heart andlungs of the Deceased. 71. The Examiner’s opinion was that the absence of soot in the lining of the trachea or mainstream bronchi meant that the Deceaseddied prior to the fire occurring. STATEMENTS OF THE ACCUSED 73. The Accused was interviewed at different points of time during the investigation. 74.

On May 18, 2017, he was interviewed by police including by Sgt Mike Kendell. This was a non-custodial witness-style interview. 75. A transcript of that statement became evidence in the trial as an attachment to the ASF. A USB flash drive with the audio/video ofthat statement also became an exhibit in the trial. 76. About five days later, on Tuesday, May 23, 2017, the investigators (again, mainly Sgt Kendell) took two warned statements fromthe Accused, the first around 10:30 am and the second around 6:00 pm. 77.

Both warned statement transcripts and the audio/video recordings of each on the flash drive became exhibits in the trial. 79. Finally, almost a year later, the Accused was interviewed again, this time under Charter caution as well as the police warning. Thefirst statement was taken on April 19, 2018 in St. Albert around 5:10 pm. The next day they continued on, and police recorded a secondstatement on April 20, 2018, beginning at about 8:40 am. 80. Both transcripts and the audio/video recordings of each saved on the flash drive became exhibits in the trial.

Brief Statements on the Law and Position of the Parties Reasonable Doubt [10] The reasonable doubt standard is a single objective, exacting standard of proof. It is not the same as proof of probability, andis not like subjective standards of care that we apply in important everyday situations. It is not proof to an absolute certainty. It is notproof beyond any doubt nor is it imaginary or frivolous doubt. It is based on reason and common sense and not on sympathy orprejudice: R v Lifchus, (SCC), [1997] 3 SCR 320, (1997) 9 CR (5th) 1 at para 36.

[11] Proof beyond a reasonable doubt falls much closer to absolute certainty then proof on a balance of probabilities: R v Starr,2000 SCC 40 at para 236. R v W(D) [12] Whenever exculpatory evidence is entered on behalf of the accused, the principles enunciated by the Supreme Court ofCanada in R v W(D), (SCC), [1991] 1 SCR 742 [W(D)] must be taken into account: R v Ryon, 2019 ABCA 36 at para30 [Ryon]; R v Gray, 2012 ABCA 51 at paras 42-43. The Court of Appeal in Ryon, at para 51, provided further guidance with respect tothe application of the W(

D) principles: [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 theCrown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject tothe caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponentof the defence.) (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. (Subject to defences with additional elements such asan objective component discussed at para 31). (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

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

Party Liability [13] The Crown alleges the accused was a party to the robbery and murder of Butt by virtue of subsection 21(1) and (2) of theCriminal Code. These subsections read as follows: Parties to offence 21

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. Common intention

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that thecommission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [14] As pointed out by the Supreme Court of Canada in R v Briscoe, 2010 SCC 13 [Briscoe], at para 13, “Canadian criminal lawdoes not distinguish between the principal offender and parties to an offence in determining criminal liability.” Section 21(1) of theCriminal Code makes principal offenders, aiders, and abettors equally liable for the commission of an offence. [15] Subsection 21(2) extends liability to a person when another person commits an offence beyond the one which the parties hadoriginally planned to assist one another with committing.

The offence to which s 21(2) extends liability is not the original “unlawfulpurpose” to which the subsection refers; it is a different crime, one that a participant in the original “unlawful purpose” commits incarrying out the original purpose: R v Simon, 2010 ONCA 754 at para 42, leave to appeal to SCC refused, [2010] SCCA No 459; R vPhillips, 2017 ONCA 752 at para 221. [16] The Crown submits the accused aided or abetted Murphy in the robbery of Butt.

Upon finding the accused a party to therobbery, the Crown argues the Court should also find the accused responsible for the death of Butt pursuant to the imposition of broadliability under s 21(2) of the Criminal Code. The Crown submits the accused planned and helped carry out the robbery in which afirearm was used, but Murphy committed a different offence, murder, which the accused knew or ought to have known would be aprobable consequence of carrying out the robbery.

Alternatively, the Crown argues the accused is liable under s 21(2) for thecommission of the more serious offence robbery with a firearm. [17] The Crown argues that Dubroy-Clement knew or ought to have known that a probable consequence of carrying out therobbery was the carrying out of a dangerous act which a reasonable person would recognize as creating a risk of bodily harm to Buttwhich was neither trivial nor transitory [18] The Defence argues that the evidence does not prove beyond a reasonable doubt that the accused was a party to the robbery. If

the accused was a party to the robbery, he did not know of nor could he have foreseen the killing of Butt.

Post-Offence Conduct Evidence [19] The Supreme Court of Canada in R v Calnen, 2019 SCC 6 [Calnen] recently explained at para 106 that post-offence conduct,otherwise known as “after-the-fact conduct” encompasses: “what the accused both said and did after the offence charged in theindictment was allegedly committed.” Because of the large range of possible conduct that can follow the commission of an offence, “theproper legal treatment of after-the-fact conduct is highly context and fact specific”: Calnen at para 106; R v Downey, 2021 ABCA 142 atpara 64 [Downey]. [20] Post-offence conduct evidence is a form of circumstantial evidence.

It allows a fact finder to draw particular inferences basedon a person’s words or actions: Calnen at para 111. It can be used in determining the accused’s intent as well as to distinguish betweendifferent levels of culpability: Calnen at para 119. [21] In R v White, [1998] 2 SCR 72, at paras 19 and 21, the Supreme Court described post-offence conductevidence as follows: 19 Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence ofthe accused’s culpability for that crime.

For example, an inference of guilt may be drawn from the fact that the accused fled from thescene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inferencemay also arise from acts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance,or attempted to hide or dispose of incriminating evidence. As Weiler J.A. noted in R. v. Peavoy (1997), (ON CA), 117C.C.C. (3d) 226 (Ont.

C.A.), at p. 238: Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on humanexperience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. ... 21 Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases itmay be highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, anact of flight or concealment may be subject to competing

interpretations and must be weighed by the jury, in light of all the evidence, todetermine whether it is consistent with guilt and inconsistent with any other rational conclusion. [22] The Supreme Court explained whether a court can consider evidence of post-offence conduct will depend on the facts of eachcase, instructing at para 26: ... The question that should be asked at the outset is: What does the Crown seek to prove by means of the evidence? ...

The evidence ofpost-offence conduct may still be used by the jury for other purposes where appropriate, for example to connect the accused to the sceneof the crime or to a piece of physical evidence, or to undermine the credibility of the accused generally. [23] In R v White, 2011 SCC 13, the Supreme Court reiterated at para 17 that post-offence conduct by an accused person, such asflight, destruction of evidence, or fabrication of lies, “can, under certain circumstances, provide circumstantial evidence of theirculpability for that crime.” The Court confirmed at para 19 that “[a]fter-the-fact conduct may in fact be put to a wide variety of uses andits utility is not confined to supporting an inference that the accused had a ‘guilty mind.’ The Supreme Court cautioned against jumping“too quickly from evidence of post-offence conduct to an inference of guilt” (White (1998) at para. 57) without giving properconsideration to alternate explanations for the conduct in question” (para 23).

See also: Calnen at para 117; Downey at paras 58 and 60. [24] It is for the trier of fact to determine which inferences it will draw from the post-offence conduct evidence: Downey at para67. In doing so, the trial judge should define the issue, purpose, and use for which such evidence is tendered and articulate the reasonableand rational inferences which might be drawn from it: Calnen at para 113.

Evidence [25] In addition to the Agreed Statement of Facts, to which four statements made by the accused were attached as exhibits, a friendof his Lucas Lundstrom (“Lundstrom”), the accused’s girlfriend Madison Brent, as well as Marianne Villeneuve, the mother of thevictim, testified. [26] The girlfriend of Murphy, at the time, Page Burkinshaw (“Burkinshaw”), testified as to her travels with Murphy to PeaceRiver on two occasions, as well as to circumstances surrounding the killing of Butt. [27] An RCMP officer, as well as two civilian RCMP members, gave evidence with respect to data extracted from cell phonesseized in relation to the investigation pertaining to the killing of Butt.

As a result of the evidence of the RCMP members, a timeline tablesetting out the content of the text messages became an exhibit in the proceeding for the purpose only of proving the fact that the wordswere communicated, not for the truth of their contents. Vetrovec Witnesses [28] The Defence has argued against giving any weight to the evidence of Lundstrom and Burkinshaw because of their “Vetrovecwitness” status.

[ 29 ] Our Court of Appeal in R v Lawrence , 2020 ABCA 268 [ Lawrence ], at para 25 , summarizes the law with respect to a Vetrovec witness: A Vetrovec witness is one with a “disreputable and untrustworthy background” ( Vetrovec , 821) including “an accomplice, or a disreputable witness of demonstrated moral lack” (823, 824, 832). [ 30 ] In para 26, the Court set out a non-exhaustive list of characteristics of a witness who may draw special scrutiny. Those, and any other factors that may apply, I will deal with in assessing the evidence of these two witnesses.

The Witness - Lucas Lundstrom [ 31 ] Lundstrom, now 34 years of age, testified that at the time of the murder of Butt he had lived in Peace River for 9 years. He knew the accused, Dubroy-Clement, through Butt. He consumed illegal drugs with both. [ 32 ] In May of 2017, he had finished his employment as a portable wood chip operator prior to spring breakup. Off work, he began partying by consuming illegal drugs including marijuana, methamphetamine, cocaine, and a number of prescription drugs. [ 33 ] The accused had utilized Lundstrom as a driver to assist him in delivering his illegal products.

The two also travelled together in rural areas stealing items from farms including light bars, tools, and firearms. They took these items to Grande Prairie to sell. [ 34 ] Lundstrom testified as to the details of how he received a call from the accused in or about mid-May asking him to help him dispose of the RV Trailer.

Lundstrom learned later it contained Butt’s body. [ 35 ] Lundstrom eventually entered a guilty plea to a charge of acting as an accessory after the fact to murder. [ 36 ] With the exception of one piece of evidence, nothing in his evidence implicated the accused in the alleged robbery and murder of Butt beyond what the accused himself told the police. Lundstrom faced no cross-examination with respect to that one piece of evidence, a text message from Dubroy-Clement. [ 37 ] Lundstrom testified that sometime in May 2017 he received a text message from Dubroy-Clement regarding Butt.

The accused told him that Butt had a large clientele and he wanted to push Butt out so the accused could have a bigger drug operation. [ 38 ] Lundstrom faced only brief cross-examination; mostly with respect to the receipt of money and drugs from Butt and the accused and his uncertain memory due to his extensive drug use in mid-May 2017. [ 39 ] Based upon my review of all the evidence and Lundstrom’s circumstances, I see no motive for Lundstrom to lie nor a benefit received so as to entice him to lie to the Court.

He does have a criminal history of committing thefts with Dubroy-Clement and he entered a guilty plea as an accessory to the murder of Butt. He forthrightly admitted his own involvement in these criminal offences. [ 40 ] If he has any knowledge of the circumstance regarding the murder of Butt, he did not use it to implicate the accused. He did not appear evasive or selective with respect to his memory. Nothing in his evidence either in chief or cross-examination showed any inconsistency.

His evidence generally aligned with the evidence of Burkinshaw and with many of the statements made by the accused to the police. [ 41 ] Considering all of the evidence, the personal circumstances of Lundstrom and the Vetrovec factors, I do not find any reason to discredit the evidence of Lundstrom. [ 42 ] Therefore, while aware of the conduct of Lundstrom in assisting in the drug trade as a driver, stealing items with Dubroy- Clement for profit and his involvement in disposing of the RV Trailer, after scrutinizing his evidence, his conduct does not give me concern about his credibility. [ 43 ] I now turn to the evidence of the text message communication Lundstrom says he had with Dubroy-Clement in May 2017 wherein the accused told him he wanted Butt pushed out of the drug trade in Peace River. [ 44 ] This evidence came in without anyone raising a concern with respect to the possibility of it being hearsay evidence, i.e. an out of court statement offered for the truth of its contents without an opportunity to have the maker tested by way of cross-examination. [ 45 ] The Crown in submissions asked me to rely upon this evidence for the truth of its contents.

In response to my inquiry, Crown counsel advised he considered it an admission against interest. [ 46 ] The Defence argued the text message had no use beyond the fact that the accused allegedly stated the words. He cautioned I should be careful because the details about the text came from a Vetrovec witness. [ 47 ] I note Lundstrom received the text message from Dubroy-Clement sometime during the month of May. The Crown did not lead evidence to authenticate this text message as it did with the timeline table of texts prepared from the extraction of data from the cellphones of Dubroy-Clement and Murphy.

No such text message appears in the accused’s text messages during the timeline table period which runs from May 10, 2017 to May 19, 2017. None of the text messages in the timeline table show Lundstrom as a sender or a recipient. [ 48 ] However, Lundstrom and the accused were well acquainted with one another. They, I infer from the evidence, likely communicated regularly with one another by text. [ 49 ] On balance, I find that Lundstrom received the text message from the accused in which he expressed his wish to push Butt out of the drug trade in Peace River so that he could grow a bigger drug operation.

I infer that the text message was sent by Dubroy-Clement

before the murder of Butt, because it would make no sense for Dubroy-Clement to tell Lundstrom this information after the murder as itwould appear to be an admission that he had Butt killed in order that he could push Butt out of the Peace River drug trade. [50] Although some academic debate exists as to whether an admission against interest is hearsay at all, the Supreme Court in R vCouture, 2007 SCC 28 , [2007] 2 SCR 517, accepted it as such.

Under either view, an admission against interest, if material andrelevant, is admissible because “what a party has previously stated can be admitted against the party in whose mouth it does not lie tocomplain of the unreliability of his or her own statements”: R v Evans, (SCC), [1993] 3 SCR 653 at para 28. [51] I accept the accused Dubroy-Clement made the statement about wanting to push Butt out of the Peace River drug trade in atext message to Lundstrom.

It constitutes material and relevant evidence in that it provides a motive for the accused to deal with Butt in amanner which would diminish his success in that drug trade. The evidence is admissible for the truth of its contents. The Witness – Paige Burkinshaw [52] This witness, as did Lundstrom, provided very little evidence that implicated the accused Dubroy-Clement in the robbery andmurder of Butt. Her evidence implicated herself far more than the accused. [53] During her testimony, Burkinshaw said she knew Murphy planned to rob Butt.

She agreed to accompany Murphy fromGrande Prairie to Peace River, including driving the car at various times. She drove the car away from the scene after Murphy killedButt. She drove Murphy back near the RV Trailer after the get-a-way when he found nothing in the first bag taken from the RV Trailer.She waited to meet Murphy at the Co-op cardlock, until he returned with money he found by searching the RV Trailer.

Thereafter, sheaccompanied him on a trip to Edmonton. [54] She gained her release from remand in May 2018 by giving a sworn statement to the police with respect to the incident. [55] Burkinshaw’s evidence should be considered carefully before relying upon it as she is a Vetrovec witness. The Defence alsoalleges her evidence is suspect as to reliability because of her addiction to drugs, in particular her use of drugs in those early morninghours of May 16, 2017 with the others in the RV Trailer. [56] She testified she did not provide any information to Dubroy-Clement with respect to a possible robbery.

The evidence shegave which could implicate the accused includes his procrastinating while the two of them walked from the bathroom area of thecampground to the RV Trailer, the text she received from Murphy asking the accused to hurry back so that he could distract the dog andher observation that the accused hurried back to the RV Trailer after she relayed the contents of the text to him.

At some point, after shewent into the RV Trailer, after returning from the bathroom, Murphy had a shotgun. [57] Burkinshaw said the accused went through the bag stolen from the RV Trailer, in the Kia Rio, after Murphy went through itand she was pretty sure that Dubroy-Clement threw the bag out of the window of the car. [58] Assessing her evidence against the Vetrovec factors from Lawrence, they do not give rise to a concern regardingBurkinshaw’s credibility. With respect to a motive to lie, no one put one to her during her examination. Nor on the evidence can I discernany such motive.

No cross-examination occurred on her sworn statement. No inconsistency stands out with respect to her evidence. Ofcourse, she could have lied in the original statement and repeated it in this trial. However, if she did, I was not able to discern the lie(s). [59] If her intention was to lie to implicate Dubroy-Clement, she did a very poor job of it because she, for the most part, did notimplicate him.

She remained steadfast in her evidence that she told him nothing about Murphy’s plan to rob Butt. [60] Burkinshaw has a criminal record she described as a DUI, which I infer is the criminal offence of operating a motor vehiclewith a blood alcohol content over 80 or operating a motor vehicle while impaired by alcohol or drugs. She also has a conviction forpossession of drugs. She has no history of dishonest involvement with the police.

She did not minimize her own involvement withMurphy before and after the murder of Butt. [61] She did not exhibit a selective memory, for example remembering incriminating things with respect to the accused andnothing with respect to herself. Neither her manner on the stand nor her evidence showed evasiveness. [62] If she had any intention to seriously implicate the accused in the robbery of Butt, she only had to say she discussed it with himor heard him discussing it with Murphy while the three of them drove about the town of Peace River collecting money before themurder.

She did not. [63] Accordingly, the Vetrovec factors do not undermine Burkinshaw’s credibility. [64] With respect to her reliability, she admitted that she is a drug addict, she used drugs that night and has tried to repress hermemories of the incident. [65] Notwithstanding potential problems with her memory, I find her evidence reliable regarding the events surrounding themurder of Butt. She had a memory of going to Peace River with Murphy from Grande Prairie.

She has a clear memory of being in the RVTrailer with the other three men, which fits with the evidence from one of the statements of Dubroy-Clement and the ASF. [66] She has a memory of going to the campground bathroom with Dubroy-Clement. Before the entry of the timeline tablecontaining the precise words of the text, she had a memory of receiving a text message from Murphy, during their walk back to the RVTrailer, about the possibility of the dog attacking Murphy.

That text message became evidence in this proceeding before the timelinetable. [67] She recalls hearing the sound of the shotgun blast which startled her, such that she dropped the car keys while she stood bythe Kia Rio outside of the RV Trailer. To her, that noise and the dropping of the car keys in surprise were unusual, memorable events

and I accept both happened. [ 68 ] Burkinshaw recalls the hiding of the firearm by a sign on the highway which matches the evidence of Dubroy-Clement in a statement. She remembers letting Murphy out of the vehicle to go back to the RV Trailer to try and find money after he could not find any in the bag taken from the Trailer. She remembers thereafter going to the Co-op cardlock to meet Murphy.

The text message from Murphy’s phone to her at 5:41 a.m. confirmed her evidence of his request to have her meet him at that location. [ 69 ] Overall, with respect to the events surrounding the visit of Burkinshaw and Murphy to the RV Trailer, the events while there and thereafter, I find her memory reliable. [ 70 ] Therefore, I find her evidence overall, unless otherwise noted, credible and reliable. [ 71 ] As a result of those findings, I accept her evidence and find as a fact that the accused Dubroy-Clement did behave in a manner she considered sketchy or nervous while the two of them walked back to the RV Trailer after her visit to the campground bathroom.

I believe her evidence when she says that after receiving the text message from Murphy about distracting Butt’s dog, and passing on the contents to Dubroy-Clement, he walked ahead of her quickly to the RV Trailer. I also accept that he ran out of the RV Trailer, in her words “barrelled out” of the Trailer, with Murphy and jumped into the Kia Rio after the shooting. Furthermore, I accept Murphy went through the bag taken from the RV Trailer.

Then he gave it to Dubroy-Clement who also searched the bag. [ 72 ] With respect to her evidence that Murphy had a shotgun when she returned to the RV Trailer from the bathroom, I cannot find as a fact she saw him with the shotgun in the RV Trailer. Her testimony does not provide that detail. She knew he had a shotgun in the car, although, I cannot find as a fact when she first knew about it.

Dubroy-Clement said Murphy had it in a small Swiss Army bag. [ 73 ] From her evidence, I can only conclude that when Burkinshaw re-entered the RV Trailer, after returning from the bathroom, she knew Murphy had a shotgun with him. I cannot find as a fact that she actually saw the shotgun in the RV Trailer. [ 74 ] With respect to who threw the bag out the window of the Kia Rio, I cannot find as a fact that the accused carried out that action. The evidence of Burkinshaw waivered on that point, although she eventually concluded she “was pretty sure” “Kyle” threw it out.

Based on her testimony, I am not prepared to make a finding of fact that Dubroy-Clement threw the bag out of the window of the Kia Rio. That detail is in any event of little significance in regard to whether Dubroy-Clement was a party to the robbery and murder of Butt. Evidence of the Accused and Application of W(D) [ 75 ] As part of its case, the Crown entered a number of statements the accused made to the police, which were attached to the ASF.

Therein, the accused, although admitting to burning the RV Trailer and breaking, entering, and stealing from the house of Marianne Villeneuve, flatly denied any involvement in planning or otherwise assisting with the robbery of Butt. [ 76 ] The accused did not testify during the trial. Nevertheless, because his statements contained exculpatory evidence, the W(

D) principles apply. Knowledge, Actions, and Times [ 77 ] I have organized the accused’s evidence according to a timeline of when he acquired knowledge and took actions before and after the murder of Butt. [ 78 ] In this discussion of the accused’s evidence, I have incorporated the relevant text messages or telephone calls made by or to Dubroy-Clement and/or Murphy contained in the timeline table entered by the Crown, covering the period May 10, 2017 to May 17, 2017.

I have also incorporated some of Burkinshaw’s evidence for chronological cohesion purposes. [ 79 ] Following a voir dire , I found that Madison Brent retrieved a cell phone belonging to the accused from her car which she turned over to the police. As well, I ruled a cell phone found in the Kia Rio motor vehicle belonged to Murphy. Thereafter, I authenticated the text messages contained in the timeline table.

In addition, after weighing their relevance, the prejudicial effect of the text messages against their probative value, I ruled the text messages admissible to establish that the communications contained therein were made, regardless of their truth or falsity.

See: R v Shivak , 2020 ABQB 642 at para 25 . [ 80 ] The authors of The Law of Evidence in Canada , 5th ed (Toronto: LexisNexis Canada Inc, 2018) explain at para 6.29: ... if the out-of-court statement, merely because it was made, is relevant to an issue apart from its truth, it is being tendered for a non- hearsay purpose and is admissible for that limited purpose. [ 81 ] The Crown sought to rely upon the text messages only for the fact they were made notwithstanding the fact that some of the text messages sent by Dubroy-Clement himself might provide inculpatory evidence of his knowledge of and involvement with the robbery of Butt, which would otherwise constitute admissible hearsay against him: R v Cabrera , 2019 ABCA 184 at para 223 (in dissent); R v Taylor , 2013 ONCA 656 at para 26 . [ 82 ] The text messages are therefore admissible to prove that a text message was sent, by whom and to whom it was sent, when it was sent, and that the words communicated in the message were made: R v Monroe , 2016 NSCA 16 at paras 12 and 16 ; R v Seruhungo , 2015 ABCA 189 at para 73 , rev’d by 2018 SCC 2 , with the majority relying upon the dissent of O’Ferrall JA.

They are not admissible for the truth of their contents. [ 83 ] Text messages are documents containing out-of-court statements. Under the documents in possession rule, documents that are or have been in the possession of a party are generally admissible against that party as original circumstantial evidence to show the party’s knowledge of their contents, his or her connection with or complicity in, the matter to which they relate, or his or her state of mind

with reference thereto: Canadian Natural Resources Limited v Wood Group Mustang (Canada) Inc (IMV Projects Inc), 2018 ABCA305 at paras 19-21; R v Bridgman, 2017 ONCA 940 at paras 70, 72, and 77; R v Black, 2014 BCCA 192 at para 29 [Black]; R v Turlon(1989), (ON CA), 49 CCC (3d) 186, 70 CR (3d) 376 (Ont CA) at para 11. [84] In Bridgman, the Ontario Court of Appeal explained at para 77: ...

By way of example only, text messages may constitute original circumstantial evidence connecting the accused to a location,transactions, or people, or demonstrating knowledge, state of mind and so on... [85] Whether their content is true or not, I have considered the text messages sent to and from Dubroy-Clement’s cell phone to theextent that they provide circumstantial evidence of the accused’s knowledge of and state of mind regarding their contents and that theyenable me enable me to draw an inference with respect to the accused’s connection to or involvement in the robbery of Butt.

See: Blackat paras 38, 39 and 41. [86] The text messages sent to and from Murphy’s cell phone to someone other than the accused, whether their content is true ornot, provide narrative or context with respect to the sequence of events that transpired prior to and following the robbery and killing ofButt. See: R v Tsega, 2016 ONSC 3772 at paras 5 and 8 (reversed on other grounds, 2019 ONCA 111, leave to appeal to the SCCdenied). I have accepted the text message sent to Burkinshaw while she returned from the campsite washroom for the truth of itscontents.

May 10, 2017 DUBROY-CLEMENT's phone sends a SMS message to 780-402-9372(Person 1) "And im getting that. Vest tonight". 2017/05/10 12:59 AM DUBROY-CLEMENT's phone sends 2 SMS messages to 780-625-4031(Person 5) TCU - D-C & Merged SMS 1168 & DOC00453(298); 2018- "We got the bulletnproof best" & "vest". 2017/05/10 3:36 AM DUBROY-CLEMENT's phone has SMS conversation with 780-219-9321(BUTT)... BUTT: "Where's my gun" D-C: "Put away!!

Its safe" BUTT: "Ok", "Wen can we meet I'm in nampq","Nampa" D-C: "Late im out of town atm" BUTT:"K well I want my money and my gun and I don't Wana camptogether if you and Luke are going to be teaming up and I'm my ownteam","400 and the gun because this is ridiculous" D-C: "Wtf u talking about kid what is rediculess ive told u all he isis afucking driver" BUTT: "He's your driver not mine" D-C: "Ya i payed him to drive me what wrong whit that its lisenced and100% legit" 2017/05/10 8:20 PM May 11, 2017 DUBROY-CLEM ENT's phone receives a SMS message from 780-625-6539 (Person 4) "Bro Lawrence just text he coming here". 2017/05/10 9:29 PMDUBROY-CLEMENT's phone receives a SMS message from 780-625-6539 (Person 4) "Better not give him the gun back..

Lol". 2017/05/10 9:30 PM [87] The timeline table shows the first text message between Murphy and Dubroy-Clement took place on May 11, 2017 at 11:48a.m.

MURPHY's phone sends 3 SMS messages to 780-617-4306 (DUBROY - C LEMENT) "Ky le ca lk me", "Its blake", and "Need to talk to you asap" . 2017/05/11 11:48 AM [ 88 ] In the following text message exchange, Butt demands that Dubroy-Clement bring him his toy, which from the evidence means his gun.

He makes the first request at 2:36 pm and at 4:00 pm sends two demanding messages as follows: DUBROY-CLEMENT's phon e receiv e s a SMS me s sage from 780-219- 9321 (BUTT) "Cam u bring m e my t o y pl z " . 2017/05/11 2:36 PM DUBROY-CLEMENT's phone re c eive s 2 SMS messages from 780 - 219- 9321 (BUTT) "I want my gun" & "I want my fucking gun". 2017/05/11 4 : 00 PM DUBROY-CLEMENT's phone s ends a S MS message to 780-219 - 9321 (BUTT) "Im fucking comming.

Calm ure fucking attitud e kid im whit cu s tum e rs that whant work done on there house". 2017/05/11 4:04 PM [ 89 ] From these text messages, Debroy-Clement had information as to the possibility that Butt was not in possession of a gun that he could use for protection purposes. [ 90 ] That same afternoon, Murphy sent a text message to Burkinshaw advising her that he was going to head out to Peace River: MURPHY's phone SM S mes s ages 587-297-9141 (BURKINSHAW) "Alright have a good sleep im go head out to peace river". 2017/05/11 2:56 PM May 12, 2017 MURPHY' s phone SMS messages 780-617 - 4306 (DUBROY-CLEMENT) "I.

Not gunna leave till the morning" and "Im get paige to put so.e cover up over my tattoo s that are noticeable". 2017/05/12 12:29 AM MURPHY's phone SMS message s 780-617-4306 (DUBROY -C LEMENT) "Call m e" . 2017/05/12 12 :3 4 AM DUBROY-CLEMENT's phone calls 780-882-2565 (MURPHY) .

It last s 1 minut e and 27seconds. 2017/05/12 12:38 AM MURPHY's phone SMS messages 780-617-4306 (DUBROY-CLEMENT) "K im leaving in half hour whats the location so . i can gps it". 2017/05/12 7:01 AM MURPHY's phone sends a SMS message to 780-617-4306 (DUBROY- CLEMENT) "Call me asap when you wake up i a int l eaving till i can put the cordinates in the gps" . 2017/05/12 9:24 AM

MURPHY's phone SMS messages 780-617-4306 (DUBROY-CLEMENT) "Call me fuker" and "How hard is it to send me the fukin adress to you". 2017/05/12 1:15 PM & 1:19 PM DUBROY-CLEMENT's phone ca lls 780-882-2565 (MURPHY.) It lasts 1 minute and 10 seconds . 2017/05/12 1:16 PM MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY- CLEMENT) "Kids house is 10219 99 street peace river alberta". 2017/05/12 1:38 PM MURPHY's phone receives an MMS message from 780-617-4306 (DUBROY- CLEMENT) that contains DUBROY-CLEMENT's location (56.166871,- 117.137979).

This lo cation is Hilltop Campground. 2017/05/12 1:39 PM MURPHY's phone SMS messages 780-617-4306 (DUBROY-CLEMENT) "I cant accept picture downliadd". 2017/05/12 1:40 PM MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY- C L EMENT) " 2 61195 Valley View Road Northwest". 2017/05/12 1:41 PM [ 91 ] Murphy and Burkinshaw did travel to Peace River on May 12, 2017. However, a flat tire on their vehicle interrupted their trip. Lundstrom went to assist them. Eventually, the two made it to Peace River, but without interacting with Butt.

May 13, 2017 [ 92 ] On May 13, 2017, Dubroy-Clement received a text message from another person who voiced concern that Dubroy-Clement might “go to (sic) savage on him,” and asked Dubroy-Clement not to let that happen. In Dubroy-Clement’s mind the reference to “the kid” and “him” must have meant Butt. DUBROY-CLEMENT's phone receives a SMS message from 780-625 - 5361 (Person 10) "U don't want me out there to come back with the kid? To be honest I don't want to be involved in this 1 job.

Plz don't go to savage on him, I know that he will cooperate with you". 2017/05/13 12:17 PM [ 93 ] In an exchange of text messages with Dubroy-Clement, Murphy indicated that he needed a vehicle that he could use to “get away from the cops with”. MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY- CLEMENT) "U sti ll comming". 2017/05/13 2:31 PM MURPHY's phone sends 2 SMS messages to 780-617-4306 (DUBROY- CLEMENT) "Yes just trying to fid a truck to borrow" and "Prob ablly bring j with me".

His phone receives the response "Just take tjs he dont need it". 2017/05/13 2:33 PM MURPHY's phone SMS messages 780-617-4306 (DUBROY-CLEMENT) "Nope his is a break down risk i need something i can get away from the cops with". 2017/05/13 2:38 PM May 14 and 15, 2017 MURPHY's phone receives 2 SMS messages from 780-617-4306 (DUBROY- CLEMENT) "Call me" and "Call". 2017/05/14 9:35 PM & 9:45 PM

DUBROY-CLEMENT's phone calls 780-882-2565 (MURPHY). It last s 8 minutes and 40 seconds. 2017/05/14 10:23 PM DUBROY-CLEMENT's phone sends a SMS message to 780 - 617-4502 (Person 12) "Rv park why u comming her im whit the kid". 2017/05/15 2:54 AM DUBROY-CLEMENT's phone receives a SMS message from 780-617- 4502 (Person 12) "Lawrence?" His phone messages back "Ya". 2017/05/15 2:55 AM [ 94 ] During the late evening of May 15, 2017, Dubroy-Clement helped Butt move out of his mother’s house and into an RV Trailer at a campsite just outside of Peace River.

The RV Trailer was parked by Lundstrom on the same lot that Dubroy-Clement occupied. The following message was sent by Butt to Dubroy-Clement at 8:48 p.m. DUBROY-CLEMENT's phone r eceives a SMS me ssage from 780-219- 9321 (BUTT) "I'll bethere soon". 2017/05/15 8:48 PM [ 95 ] Later that night, the following text message exchange took place between Murphy and Dubroy-Clement.

MURPHY's phone SMS messages 780-617-4306 (DUBROY - CLEM ENT) "Im leaving town now". 2017/05/15 11:40 PM MURPHY's phone SMS messages 780-518-5010 (Person 2) "Whatever im on my way" and "To peCe". 2017/05/15 11:57 PM MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY-CLEMENT) "Ok kid is here whit dog and cash . toy is at his buddys place". 2017/05/15 11:58 PM MURPHY's phone SMS messages 780-617-4306 (DUBROY-CLEMENT) "where are you".

His phone replies "Im at camper whit kid". 2017/05/15 11:59 PM May 16, 2017 MURPHY's phone SMS messages 780-617 - 4306 (DUBROY-CLEMENT) "How do i get to the camper once i get to peace" and "Whos all at the camper". 2017/05/16 12:00 AM & 12:01AM MURPHY's phone receives 3 SMS messages from 780-617-4306 (DUBROY- CLEMENT) "So u comming here or going for toy what u thinking", "Just me kid and dog u comming.

Y fairview", and "By*". 2017/05/16 12:02 AM & 12:03 AM MURPHY's phone sends 3 SMS messages to 780-617-4306 (DUBROY- CLEMENT) "Yeaa", "But i literally just left " , and "Grande prairie". 2017/05/16 12:03 AM MURPHY's phone SMS messages 780-617 - 4306 (DUBROY-CLEMENT) "What kinda dog". 2017/05/16 12:18 AM

MURPHY's phone receives a SMS message from 780 - 518-5010 (Person 2) "fucking sick of bullshit " . His phone replies “ Me too im getting something tonight kyle has him at the trailer he dont have a toy on him just the dog” and “the kids got cash”. 2017/05/16 12:19 AM to 12:21 AM MURPHY's phone receives a SMS message from 780 - 617 - 4306 (DUBROY- CLEMENT) "Lab female". 2017/05/16 12:21 AM MURPHY's phone receives a SMS message from 780-518 - 5010 (Person 2 ) "Whe r es the toy does he have food too".

His phone replies "I dunno" and "The toy is at his buddies p l ace". 2017/05/16 12:22 AM to 12:23 AM MURPHY's phone SMS messages 780 - 617-4306 (DUBROY - CLEMENT) "How do i get to the camp ground once i get to peace river". 2017/05/16 12:24 AM DUBROY - CLEMENT's phone receives a SMS message from 780-625- 6539 (Person 4) "There gone for the night". 2017/05/16 12:56 AM MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY- CLEMENT) "Go stra i ght threw across bridge up the hill stay straig ht unt il u see junk yard then turn l eft then first l eft". 2017/05/16 1:03 AM DUBROY-CLEMENT's phone receives a ca ll from 780 - 882 - 2565 (MURPHY).

The ca ll l asts 11 minutes and 39 seconds. 2017/05/16 1:42 AM MURPHY's phone SMS me s sages 780 - 617-4306 (DU BROY - CLEM ENT) "5872979141" (BURKINSHAW's number) and "Send location". 2017/05/16 1:54 AM MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY - CLEMENT) "Dont do nothing tonight he knows ure comming heard u on phone". 2017/05/16 2:00 AM DUBROY - CLEMENT's phone sends a SMS message to 780-625-6539 (Person 4) "Buddy came down to get paper". 2017/05/16 2:09 AM MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY- CLEMENT) "If u where to came back in like a hpur buddys kinda tripping things merphy and bryce know where wre are and they have rolled on him before". 2017/05/16 2:13 AM MURPHY's phon e receives a SM S message fro m 780- 61 7 - 430 6( DUBRO Y - CLEMENT) "He convinced there coming for him".

His phone replies "Yeaa eh i could buddy buddy him". 2017/05/16 2:14 AM [ 96 ] In the early morning hours of May 16, 2017, Murphy and Burkinshaw met Dubroy-Clement at his trailer located at the campsite near Peace River. [ 97 ] Thereafter, Murphy, Burkinshaw, and Dubroy-Clement drove into Peace River where Dubroy-Clement collected money

owing to him for a drug deal. While there, Dubroy-Clement received text messages from Butt with respect to the operation of a motor vehicle. Dubroy-Clement replied making reference to the safety of Butt.

DUBROY-CLEMENT's phone receives 2 SMS message from 780- 219-9321 {BUTT) "How do you put the car In reverse" & "???". 2017/05/16 2:42 AM DUBROY-CLEMENT's phone sends a SMS message to 780 - 219 - 9321 (BUTT) "Like i showed u lift the thing on shifter pull l eft as hard as possible then up" . 2017/05/16 2:44 AM DUBROY-CLEMENT's phone receives 2 SMS messages from 780- 219 - 9321 (BUTT) "Should I go" & "Should I try to teach myself right now?".

DUBROY-CLEMENT's phone replies with 2 SMS messages "I wouldnt have left u if i did t think u where safe" & "Plus u got girl". 2017/05/16 2:46 AM DUBROY - CLEM ENT's phone receives a SMS message from 780- 219-9321 (BUTT) "Let's tell bryce and murphy bear nuckle brawl at fas gas nampa 3:30am". 2017/05/16 2:55 AM DUBROY-CLEMENT's phone receives a SMS message from 780- 219-9321 (BUTT) "Hurry back bro". 2017/05/16 3:11 AM [ 98 ] After the trip to Peace River to collect money, Dubroy-Clement, Murphy, and Burkinshaw went to the RV Trailer, where they met Butt.

Murphy at some point while in the RV Trailer had a bag which contained a shotgun. MURPHY's phone SMS messages 587-297-9141 (BURKINSHAW) "Go to the washroom in 20 minutes". 2017/05/16 4:04 AM MURPHY's phone SMS messages 587-297-9141 (BURKINSHAW) "Fuck it go". Her phone replies "Kk one sec". 2017/05/16 4:07 AM [ 99 ] From one of the statements of Dubroy-Clement and the evidence of Burkinshaw, I accept that the two went to the washroom facility at the campground. On route back to the RV Trailer, Burkinshaw received the following text message from Murphy.

MURPHY's phone SMS messages 587-297-9141 (BURKINSHAW) "Tje dogs going to attack me if i do it tell kyle to come bak in" and "So he can distract the dog." 2017/05/16 4:20 AM [ 100 ] After Burkinshaw told Dubroy-Clement about the text message, he walked ahead of Burkinshaw and went into the RV Trailer. [ 101 ] Burkinshaw then entered the RV Trailer. For a brief period of time, Dubroy-Clement, Murphy, Butt, and Burkinshaw remained in the Trailer together. [ 102 ] Sometime after 4:22 AM, Burkinshaw left the trailer to go to the car. Thereafter, Murphy fired the shotgun killing Butt.

Burkinshaw testified she heard the gunshot and dropped the keys to the car. Dubroy-Clement and Murphy then ran out of the RV Trailer with Murphy holding a bag stolen from the Trailer. [ 103 ] All three entered the Kia Rio car. Burkinshaw drove the car away with Murphy as the front seat passenger and Dubroy-Clement as a rear seat passenger. [ 104 ] As Burkinshaw drove away, according to her evidence, Murphy searched the bag for drugs and money, finding nothing.

Murphy then handed the bag to Dubroy-Clement who also searched it finding nothing. [ 105 ] Burkinshaw stopped the car by a highway sign east of the campground location where, from the evidence I conclude, one of the two men hid the shotgun near the sign. Dubroy-Clement knew the location because he returned later to retrieve the gun, evidence I accept from his statement. [ 106 ] Burkinshaw drove the car back near the campsite where Murphy exited. Murphy returned to the RV Trailer. [ 107 ] Between 5:12 a.m. and 5:41 a.m. the following text messages were exchanged:

MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY- CLEME N T) "Yo". 2017/05/16 5:12 AM MURPHY's phone receives a SMS message from 780-617-4306 (DUBROY - CLEME N T) "U good". 2017/05/16 5:38 AM MURPHY's phone sends 2 SMS messages to 587-297-9141 (BURKINSHAW) " Im at the co op card lock" and "Hurry". Her phone rep li es "K coming" and "U hera or see anything". 2017/05/16 5:41 AM to 5:44 AM [ 108 ] Thereafter, Murphy met Burkinshaw and Dubroy-Clement at the Co-op cardlock on the east hill out of Peace River.

Burkinshaw drove the Kia Rio to downtown Peace River where Dubroy-Clement exited the vehicle. [ 109 ] During the day of May 16, 2017, Dubroy-Clement, Bonnie Casselton, and Lundstrom removed the RV Trailer from the campsite to a location on the Reno Road, south and east of the campsite. Dubroy-Clement burned the Trailer with the body of Butt inside it.

May 17, 2017 [ 110 ] On the morning of May 17, 2017, Dubroy-Clement sent the following message to Murphy: MURPHY's phone receives a SMS message from 780 - 617 - 4306 (DU BROY- CLEMENT) "Yo might have more paper theres 8-lOk somewhere i think its in moms house im almost in house il let u know what i find". 2017/05/17 6:37 AM DUBROY-CLEMENT's phone sends a SMS message to 780-625-6539 (Person 4) "They should be almost here and even if i gotta fuckin smash window im doing it". 2017/05/17 6:44 AM [ 111 ] That same morning, Dubroy-Clement broke into the house of Marianne Villeneuve and took money hidden by Butt. [ 112 ] The following day, May 18, 2017, Dubroy-Clement gave a statement to the police denying any involvement holding out that Butt disappeared while he went downtown with “John” to collect money.

He told the police he burnt himself while pouring gas on a hotdog fire at the campgrounds. [ 113 ] On May 23, 2018, Dubroy-Clement gave a statement to the police acknowledging that he burnt the RV Trailer and broke into the home of Marianne Villeneuve, from which he stole $9,000 more or less on the morning of May 17, 2017. Analysis of the Offences Robbery or Impulsive Killing Followed by a Theft [ 114 ] The Defence in submissions argued that Murphy did not rob Butt.

Rather, Murphy impulsively killed Butt, then went about stealing property from the RV Trailer. [ 115 ] Respectfully, I disagree with this submission; the evidence suggests otherwise. I find Murphy robbed Butt, and that in doing so used a firearm. [ 116 ] Proof of robbery requires proof that Murphy:

a) stole something from Butt (commission of a theft); and

b) used one of the four methods specified in

section 343 to carry out the stealing. See: R v Newell , 2007 NLCA 9 at para 21 [ Newell ] [ 117 ] Generally speaking, the additional feature which turns theft into robbery is the presence of violence or a threat of violence: Newell at para 21 . [ 118 ] Martin’s Annual Criminal Code, 2018, Judicial Edition , provides the following helpful synopsis with respect to robbery:

Every person who steals and uses violence or threats of violence to another person or property in order to overcome resistance to thestealing or to extort whatever is stolen, commits the form of robbery set out in para (a). Everyone who steals from any person and duringthe course of the stealing, or immediately before or after, wounds, beats or uses any personal violence to that person commits the form ofrobbery set out in para (b). A person who assaults another person with the intent to steal from him commits the offence of robberydescribed in para (c).

Finally, everyone who steals from any person while armed with an offensive weapon or an imitation thereof,commits the offence of robbery described in para (d). It is to be noted that paras (a), (

b) and (

d) require proof of the act of stealing as oneof the elements of the offence. Para (

c) requires proof only of an intent to steal as an essential element. (p 711) [119] For Murphy to be found guilty of robbing Butt under s 343(

b) of the Criminal Code, for example, violence must have beeninflicted upon Butt at a time immediately proximate to the time of the theft, whether immediately preceding or following the theft: R vLieberman, [1970] 5 CCC 300 at para 32 (WL), (Ont CA); Newell at 25; R v Crabe (1993), 79 CCC (3d) 323 at para11 (WL), (BCCA). There is no requirement that the violence must exactly accompany the theft. [120] Here I am satisfied that Murphy stole Butt’s bag from the RV Trailer as he believed it contained money and drugs. He had nocolour of right to the bag and he had no intention of returning it to Butt.

I accept Burkinshaw’s evidence that Murphy had the bag andsearched it for money and drugs in the Kia Rio. [121] Murphy used violence against Butt at a time immediately proximate to the time of the theft of his bag. He shot him dead with ashotgun. [122] I infer from the evidence that Murphy used violence to prevent Butt from resisting, to allow him to steal Butt’s bag and later themoney he found after returning to the RV Trailer. He returned to the scene because he found no money or drugs in Butt’s bag.

The latertaking of the money from the RV Trailer was a continuation of the theft for which he had used violence. [123] This was not an impulsive killing and later a theft of property from the RV Trailer. Burkinshaw testified, and I accept herevidence, that she knew from her discussions with Murphy that he intended to rob Butt. [124] I find that Murphy did rob Butt and killed him while in the process of robbing him. It does not matter whether the shootingoccurred immediately prior to or following the theft for Murphy to be found guilty of robbery under s 343(

b) of the Criminal Code. Theuse of violence must have been proximate in time with the theft. I am satisfied that it was. Dubroy-Clement as a Party [125] I am satisfied that Murphy robbed Butt.

The next question to determine is whether the Crown has proven beyond a reasonabledoubt that Dubroy-Clement was a party to the robbery of Butt, in particular with a firearm. [126] In R v Saunders, (SCC), [1990] 1 SCR 1020 at 1023, the Supreme Court of Canada advised: “It is afundamental principle of criminal law that the offence, as particularized in the charge, must be proved.” In this case, count 2 on theIndictment reads: ON OR ABOUT THE 16TH DAY OF MAY, 2017, AT OR NEAR PEACE RIVER, ALBERTA, [KYLE DUBROY-CLEMENT] DIDUSE A FIREARM, IN ROBBING LAWRENCE BUTT, CONTRARY TO SECTION 344(1)(A.1) OF THE CRIMINAL CODE OFCANADA. [127] The wording of the Indictment alleges that Dubroy-Clement used a firearm “in robbing Lawrence Butt.” The reference to therobbery of Butt in the charge must be read together with the words of the enactment that describes the offence, namely, s 343 of theCriminal Code.

The Indictment does not specify any one of the particular modes of robbery described in ss 343(

a) to (d). See: R v AD,2003 BCCA 106 at para 29 [AD]. Of importance, the accused was not charged with armed robbery under s 343(d). Therefore, it is opento this Court to find the accused guilty of robbery under any of the subsections of s 343. [128] The words “did use a firearm” in the Indictment and “where a firearm is used” in s 344(1)(a.1) of the Criminal Code arerelevant to the question of sentence only. The use of a firearm is not an essential element of the offence of robbery. Rather, it is anessential component of the applicable sentencing ranges set out in s 344(1).

As a firearm was used in the robbery committed by Murphy,the reference to s 344(1)(a.1) of the Criminal Code put the accused on notice that he faces a minimum sentence of 4 years’ imprisonmentif found guilty of robbing Butt: AD at paras 30-31; R v Watson, 2008 ONCA 614 at para 24 [Watson]; R v Manley, 2011 ONCA 128 atparas 60-61; R v Cudmore, 2020 ABCA 389 at para 6. [129] The Crown does not argue the evidence makes out proof beyond a reasonable doubt that the accused committed the robbery;rather, the Crown submits he aided or abetted Murphy to rob Butt.

Further, the Crown submits the accused knew and intended thatMurphy use a firearm in the robbery and aided him in so doing. [130] In the alternative, the Crown alleges the accused and Murphy made an agreement to rob Butt. Murphy went further andcommitted a different offence, robbery with a firearm. The Crown contends Dubroy-Clement should have foreseen Murphy wouldprobably use a firearm in carrying out their original agreement. Aiding [131] The actus reus of aiding is doing something, or in some circumstances, omitting to do something, that assists or supports aprincipal offender to commit the offence.

Broadly speaking, “[t]o aid under s. 21(1)(

b) means to assist or help the actor”: Briscoe at para14 and R v McKay, 2012 ABCA 310 at para 13 [McKay]. [132] There is no need for the trial judge to decide the precise nature of an accused’s participation in order to find the accused was aparty to the offence: R v Thatcher, (SCC), [1987] 1 SCR 652. That said, mere presence at the scene of the commission

of the offence is not sufficient. It can, however, be evidence of aiding if accompanied by other factors, such as prior knowledge of theprincipal offender’s intention to commit the offence: R v Dunlop, [1979] 2 SCR 881 at 891, [Dunlop]. [133] Moreover, doing or omitting to do something that resulted in assisting another in committing an offence is not sufficient toattract criminal liability. The aider must also have the requisite mental state or mens rea.

The person must have provided the assistancefor the purpose of aiding a principal offender to commit the offence: Briscoe at para 15; R v Cowan, 2020 SKCA 77 at para 28 [Cowan]. [134] The law requires proof beyond a reasonable doubt of both intent and knowledge to render the accused liable as an aider.

TheCrown must prove that the accused intended to assist a principal offender in the commission of the offence and further that the accusedknew a principal offender intended to commit the offence, although he or she does not need to know precisely how the offence will becommitted: Briscoe at paras 16 and 17; Cowan at paras 26-28.

Further, the aider need not share the intent of the principal to commit theoffence: Briscoe at para 18. [135] As the accused was charged under s 344(1)(a.1) of the Criminal Code, it is not necessary that I find that he knew Murphy wasarmed with a firearm (s 343(d)) or that he intended to use the firearm during the commission of the offence in order to find the accusedguilty of aiding Murphy in committing the robbery under s 21(1)(b). [136] At the first step of W(D), I do not believe Dubroy-Clement’s exculpatory statement to the police that he did nothing to plan therobbery of Butt or otherwise assist in the robbery. [137] Dubroy-Clement consistently lied to the police during his first statement of May 18, 2017. [138] Dubroy-Clement misled the police when he was asked how Murphy knew Butt was there at the RV Trailer when he answered“he didn’t.” “I never even mentioned anything.” “Nothing.” This is not true, in light of the text messages of May 15, 2017 sent at 11:58pm and 11:59 pm in which Dubroy-Clement tells Murphy that the kid, that is Butt, is here with him, with cash, and without a firearm.Dubroy-Clement could have provided false information in the text but he did mention Butt at a particular location. [139] Moreover, when he did admit his responsibility for the burning of the RV Trailer and the break-in at Marianne Villeneuve’shouse, he repeatedly misled the police and did not fully disclose until pressed by the police or until it became obvious to him that thepolice already had information that he was withholding from them.

The following details provide some of the misleading informationthat he gave to the police. He gave a vague answer then acknowledged that Murphy had tattoos on his hands. He misled the police aboutthe third person, Burkinshaw, being at the RV Trailer at the time of the shooting until pressed by the police with respect to the securityvideo indicating a third person was present. He left out the fact that while in the car with Murphy and Burkinshaw, after leaving thescene of the robbery, he looked through the bag which I have found as a fact he did, based on the evidence of Burkinshaw.

He then toldthe police that nothing of significance happened on Wednesday, before he went on to admit that he broke into the house of MarianneVilleneuve. [140] Due to his extensive lying, his efforts to mislead the police, and weighing his denial against all of the evidence, I do not believehis denial with respect to having played no

part in the robbery of Butt. [141] The second step of the W(

D) analysis requires a detailed review of the evidence. It requires examining the accused’sexculpatory statement(

s) internally against his own evidence and externally against the other evidence in the trial. [142] This means a blending in this case somewhat of steps two and three in the W(

D) analysis. Upon my assessment of the evidence,I reject the accused’s denial that he had prior knowledge of and assisted with the robbery.

Instead, I am satisfied beyond a reasonabledoubt, based upon the totality of the evidence, that Dubroy-Clement assisted Murphy in the robbery of Butt. [143] My decision relies in part upon what Dubroy-Clement knew, what he did with that knowledge, and the relevant times he had theknowledge and acted on it. [144] The position taken for the defence of Dubroy-Clement rests with his statement to the police that Murphy came to Peace Riveron May 15 – 16, 2017 to bring drugs to and collect money from himself, not Butt. [145] I reject that explanation. On the evidence it makes no sense.

If Murphy only made the trip to supply drugs to and collect moneyfrom Dubroy-Clement, which did happen, then Butt should have played no

part in the event. Butt, however, features prominently in thetext messages regarding both the May 12, 2017 and the May 15, 2017 Grand Prairie to Peace River trips. [146] Furthermore, if Dubroy-Clement thought Murphy planned to come to Peace River only to bring him drugs and to collect moneyfrom him, it made no sense for Murphy to cover his tattoos in order to protect his identity. The two were known to each other. [147] Dubroy-Clement knew as early as the evening of May 10 and the afternoon of May 11, 2017, that Butt had demanded the returnof his firearm from Dubroy-Clement.

Thereafter, Dubroy-Clement could, although Butt might have lied, assume that Butt may have nofirearm with which to arm and protect himself. [148] The accused in his May 23, 2017 statement to the police acknowledged he knew that Butt had money and knew where he keptit, at his mother’s home. He knew of these two matters because, as he said to the police, “he was my kid” and “the kid always kept meaware of that kind of stuff.” [149] Sometime in May, 2017, which I have concluded must have occurred before the killing of Butt, Dubroy-Clement toldLundstrom he wanted to push Butt out of the Peace River drug trade.

From those words, which I have admitted for the truth of theircontents, I do not infer, and no other evidence supports, that he then went about planning the robbery of Butt. However, from the words Iconclude he wanted something done by himself or on his behalf that would reduce Butt’s trade in Peace River and increase his own tradein the sale of illegal drugs.

[ 150 ] With respect to both the May 12 and May 15, 2017 trips, the accused had information from the text messages that Murphy planned to come to Peace River. He expected Murphy to make the trip. [ 151 ] Dubroy-Clement also knew that Murphy had told him he planned to cover his tattoos. Burkinshaw, in her evidence, confirmed that she did cover Murphy’s tattoos. I accept her evidence on that point.

Whether or not Dubroy-Clement could rely on that information, he knew that Murphy had told him he would take steps to conceal his identity. [ 152 ] Concealing identity in the circumstances, on balance, can only relate to avoiding the detection of a perpetrator of a criminal act. As Murphy and Dubroy-Clement already knew one another, the logical inference is that Murphy wanted to conceal his identity from Butt. [ 153 ] After the murder, Murphy took no action against Dubroy-Clement. Murphy had a witness to a gratuitous killing.

Doing nothing about it, as against Dubroy-Clement, indicates his confidence in Dubroy-Clement as someone he could trust. [ 154 ] In relation to both trips, Dubroy-Clement provided directions to Mu

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