His Majesty the King - v. -, 2023 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 28 Date: March 31, 2023 Information: 90409837 Location: Prince Albert _____________________________________________________________________________ Between: His Majesty the King - and - Kyle A. Crain Appearing: S. Blackman For the Crown E. Strelioff For the Accused DECISION ON PRELIMINARY INQUIRY F.M.

DAUNT, J INTRODUCTION [ 1 ] Kyle A Crain, of Muskoday First Nation, stands charged that he, on or about the 20 th day of June 2021, at Prince Albert, in the Province of Saskatchewan, knowing that other individuals had murdered Drexlyr Whitehead, did assist other individuals for the purpose of enabling other individuals to escape, contrary to

section 240 of the Criminal Code . [ 2 ] The preliminary inquiry was held on March 27 and 29, 2023. Evidence consisted of an Agreed Statement of Facts with attached exhibits, as well as brief viva voce evidence from three civilian witnesses. The evidence of Donald Smith was admitted in a kind of verbal “can-say,” which will be summarized below. The issue is whether the Crown has tendered evidence sufficient to require

the accused to stand trial for the offence. EVIDENCE [ 3 ] At 2:01 p.m. on June 20, 2021, police received a report of a male who had been shot and was lying on the ground. On arrival, police recognized the male as Drexlyr Whitehead. [ 4 ] According to the Agreed Statement of Facts: A number of statements were taken from witnesses who indicated a white Ford F150 (“Ford Truck”) attended to 1982 14 th St W, two suspects exited the Ford Truck, approached 1982 14 th St W and then returned to the Ford Truck with WHITEHEAD.

The suspects and WHITEHEAD were standing beside the Ford Truck when a noise described as a “bang” was heard. The Ford Truck drove away and WHITEHEAD fell to the street. There is no direct evidence either of these two individuals shot the deceased. [ 5 ] Police obtained surveillance video showing a white Ford four-door truck driving westbound on the 1900 block of 14 th Street West in Prince Albert at 1:58 p.m. on June 20, 2021. [ 6 ] Shane Svendsen testified that, on June 20, 2021, at about 2:00 p.m., he was in his backyard with his girlfriend, gardening and playing with the dog.

He heard a “pop.” He went to the front of the house and saw a white Ford four-door truck leaving the scene at “probably 100% throttle.” The truck ran over the deceased. Mr. Svendsen thought the man was still alive. He ran back and told his girlfriend to call 911. The police arrived within about five minutes. Mr. Svendsen did not see who was in the vehicle. [ 7 ] Dorothy McCallum also testified for the Crown. She says it was Sunday, Father’s Day, June 20, 2021, at 2:00 p.m., when she was driving to her home on the 1900 block of 14 th Street West. She saw people standing there. She took her dog into the house.

She heard a loud noise, like a firework. She saw people standing on the front deck of a house across the street. She did not see anyone she recognized. She saw a white pickup truck drive away. She did not see the driver. She saw the truck’s signal light as it turned right (northbound) on 20 th Avenue heading toward 13 th Street. She did not know the deceased. [ 8 ] Jordan Peterson testified, reluctantly, under threat of arrest. He identified Kyle Crain in the prisoner’s box. He says he got woken up and went outside.

He says he may have seen Kyle briefly for a few seconds, probably a few minutes before the gunshot. He did not see Kyle when he heard the gunshot. He did not see who shot Drexlyr Whitehead. He saw no firearms or other weapons on anybody. He saw a truck, but did not recall the colour, make, or model. He did not see who drove the vehicle. He did not recognize the vehicle. He had no idea how many people were standing around.

He did not think he saw anybody standing around. [ 9 ] Donald Smith, had he testified, would have said that, at the relevant time, he saw a female with dark curly hair drive away in a white Ford truck. [ 10 ] Video surveillance established that, at 2:01 p.m., the white Ford truck drove westbound on 14 th Street West, then turned northbound on 20 th Avenue West. After that, the truck would have had to turn eastbound on 13 th Street West, because there’s really nowhere else to go.

This was not captured on surveillance cameras, however. [ 11 ] Joey McKenzie gave a statement to police on July 6, 2021, over two weeks later, while he was in police custody for reasons unknown. Mr. McKenzie was called as a Crown witness, but refused to be sworn or affirmed. Instead, his videotaped statement to police was tendered into evidence pursuant to section 540(7) of the Criminal Code . [ 12 ] In his statement, Mr. McKenzie says he was leaving his house at 1900 13 th Street West. He was walking down the driveway to get into his friend’s car.

He saw a youth in his early teens running down the middle of 13 th Street, heading east, looking worried or scared. He then saw Kyle Crain driving a white extended-cab Ford truck, heading eastbound on 13 th Street West. He had never seen Mr. Crain driving that truck before. He thought the back window was tinted. The truck was proceeding slowly, “like he was looking for

someone.” Joey McKenzie waved and Kyle waved back. Mr. McKenzie thought Kyle might turn around and stop to say “hi,” but he did not. Mr. McKenzie did not see anyone else in the vehicle. [ 13 ] He and his friend got in her vehicle. They drove up 20 th Avenue and saw to their left a “developing crowd.” Mr. McKenzie did not know what these people were looking at, and he recognized none of them.

He was unsure what day this occurred, a Monday or a Tuesday, but he recalled it happening “definitely right around noon.” Later, after talking to Jordan Peterson, he concluded the crowd was related to Drexlyr Whitehead’s killing. [ 14 ] Mr. McKenzie said Kyle Crain is from Muskoday, and used to be friends with his brother, when he also lived on Muskoday. [ 15 ] Mr. McKenzie was not subjected to cross-examination, thus frustrating the discovery function of the preliminary inquiry. Some of his statement contains inadmissible hearsay statements from Jordan Peterson.

I have disregarded these. [ 16 ] According to the Agreed Statement of Facts, Mr. Crain’s father, Alfred Crain, told police the accused attended his residence on Muskoday First Nation in a white Ford truck bearing licence number 821 MEA, on June 20, 2021, at 5:30 p.m. I note that Muskoday is about a 15-minute drive from Prince Albert. After searching both Alfred’s residence and the truck, police found a blood stain on the rear passenger tire of the vehicle. DNA from that blood stain matched the deceased. [ 17 ] An autopsy revealed the cause of death to be a gunshot wound to the head.

The pathologist could not say that blunt force trauma from being run over played a role in the death. [ 18 ] The Crown led no evidence related to the murder weapon. Although police recorded the plate number of the white Ford truck, evidence of ownership was not tendered. [ 19 ] Defence has admitted date, jurisdiction, continuity of exhibits, “continuity,” identity of the deceased, and that his death was a murder.

POSITIONS OF CROWN AND DEFENCE [ 20 ] If I understand correctly, the Crown theory is this: Evidence of the murder, i.e. the blood stain containing Drexlyr Whitehead’s DNA, was on the rear passenger tire of the white Ford truck. Kyle Crain’s act of driving the vehicle out of the city assisted the principal to escape liability for the murder, making Kyle Crain an accessory after the fact to that murder.

As to intention, Crown counsel submits it is a rational inference that the accused performed this act for the purpose of assisting the unknown principal or principals to escape liability. [ 21 ] Defence argues there is no evidence before the court from which a jury could infer that the accused was hiding evidence or otherwise trying to help another person escape criminal liability. He points out that Joey McKenzie, who refused to testify, never identified Kyle Crain in court, so there is no evidence the Kyle Crain named on the Information was driving that truck at the relevant time. Furthermore, Mr.

McKenzie was unsure of when he saw the accused drive the truck. He said it was a Monday or a Tuesday, but the incident occurred on a Sunday, Father’s Day. The evidence shows Mr. Crain was not the driver when the truck left the scene. [ 22 ] Furthermore, defence submits the evidence shows only that the truck was found at the accused’s father’s residence. There is no evidence the truck was hidden from view, no evidence any attempt was made to clean the truck, or destroy evidence that was contained in or on the truck. LAW

[ 23 ] Section 23(1) of the Criminal Code defines the offence as follows: An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.

Section 240 states: Every one who is an accessory after the fact to murder is guilty of an indictable offence and liable to imprisonment for life. [ 24 ] A review of the case law reveals the following elements of the offence, all of which the Crown must prove beyond a reasonable doubt before a jury could find guilt: [1] a. A murder was committed; b. By “other individuals,” i.e. a principal or principals other than the accused; c. The accused knew the principal was a party to the murder ( mens rea : knowledge); d. The accused received, comforted, or assisted the principal ( actus reus ); and e.

The accused, when doing the prohibited acts, did so for the purpose of enabling the principal to escape liability ( mens rea : purpose). [ 25 ] The offence requires proof of the predicate offence, proof of the actus reus , and proof of two mens rea components: knowledge and purpose. The mens rea components must be contemporaneous with the actus reus . [ 26 ] The test for committal after a preliminary inquiry is contained in United States v Shephard . [2] The question is whether or not there is any evidence upon which a reasonably jury properly instructed could return a verdict of guilty.

When, as here, the case consists of circumstantial evidence, the judge must determine whether the evidence is reasonably capable of supporting the inferences the Crown asks the jury to draw. Inferences drawn must be rational and supported by the evidence, not mere speculation.

Some limited weighing of the evidence is allowed for this purpose. [3] [ 27 ] The Crown is entitled to have ambiguous inferences resolved in their favour, and the witnesses must be taken at face value, assuming their credibility and reliability. [4] The ultimate question is whether, accepting all direct evidence as proven, and accepting the rational inferences advanced, those facts could support a conviction by a properly instructed reasonable jury. Evidence must be led to support each element of the offence charged.

ANALYSIS [ 28 ] Distilled to its essence, the Crown’s case consists of the following; Kyle Crain was possibly seen in the area shortly before the incident. Kyle Crain was seen driving the truck in the same area of town at some unspecified time after the incident. Three and a half hours after the incident, Kyle Crain parked the truck at his father’s residence, 15 minutes out of town. [ 29 ] The Crown led no evidence and advanced no theory as to who actually shot Drexlyr Whitehead.

Without the defence admission that a murder was committed, the Crown would need to present evidence tending to prove the shooting was intentional (not accidental), the principal intended or was reckless that the death occur, and that the shooter was someone other than the deceased himself. In the normal course of events, the Crown would prove the underlying murder by tendering the conviction of the principal.

Here, the principal is unknown. [ 30 ] Without some physical description of the two individuals who exited and then returned to the Ford truck, it would be pure speculation to infer that Kyle Crain was one of them. However, the testimony placing him at the scene shortly before the gunshot, coupled with the testimony placing him in the truck shortly thereafter, supports a rational inference that he was one of the individuals. So, while there is no direct evidence the accused knew the truck had run over the deceased, there is evidence upon which a jury could conclude that he did.

However, there is no evidence he turned his mind to the possibility of DNA evidence being present on the truck and then took some action to destroy it or hide it from the authorities. There is no evidence the accused took steps to conceal the truck. The blood stain was intact, and suitable for forensic testing. The Crown led no evidence tending to prove the accused attempted to clean the truck or wash away evidence.

[ 31 ] The evidence of Joey McKenzie shows that Muskoday is the accused’s home reserve. There is nothing unusual in him being there. Without evidence as to the registered owner of the truck, the Crown’s case proves no more than that Kyle Crain parked his own truck at his own home. A jury could not conclude the accused parked the car at his father’s residence to assist someone else, or for anything other than an innocent purpose. [ 32 ] Moreover, the truck was not the murder weapon.

Evidence is lacking as to what kind of gun was used, what caliber bullet, or whether the shot was fired from close range or from far away. There is no direct evidence that one of the two individuals observed standing near the white Ford truck was the shooter, although that is certainly a rational inference a jury could draw. I heard no evidence that a firearm was found in the truck when it was searched. Although several witnesses heard the gunshot, no one saw a firearm at the scene. None of the witnesses testified as to where the sound came from.

In short, there is no evidence the accused possessed or handled or otherwise tampered with the murder weapon. [ 33 ] While there is no direct evidence that Kyle Crain was the actual shooter, neither is there evidence that he was not . The Crown failed to produce evidence tending to prove someone other than Kyle Crain shot Drexlyr Whitehead. One cannot be one’s own accessory. One might argue that, because there were two individuals with the deceased at the time of his death, and only one could have shot him, a jury could infer a 50-50 chance the accused was not the shooter.

But that is all they can do with that evidence. There is no evidentiary basis for a jury to find as a fact that the accused was not the shooter. As an element of the offence, this fact must be proven beyond a reasonable doubt; even odds are not enough. This is unlike the situation where two witnesses give conflicting evidence. A jury may accept either or neither witness’s evidence.

Here, there is simply a lack of evidence upon which a jury could find the necessary fact, which is an essential element of the offence. [ 34 ] One theory the Crown did not advance, but that I have considered, is that the female with dark curly hair shot the deceased, and the accused helped her escape in the truck – drove the getaway vehicle, in effect. However, this theory lacks evidentiary support. The only evidence of the identity of the driver at the scene was that of Donald Smith, who says the female was the getaway driver.

The jury may properly infer that Joey McKenzie was talking about the same Kyle Crain who stands charged before the Court. His evidence places the accused in the vehicle, probably shortly after the event. There is no direct evidence the female was still in the vehicle at that time, but it is a rational inference she was, given the proximity of the two locations. However, the vehicle was not travelling at a high rate of speed, as though fleeing. To the contrary, Joey McKenzie said the vehicle was travelling slowly, like the accused was looking for someone.

At this point, moreover, the vehicle had already left the scene. In short, even if the female was the shooter, there is no evidence the accused assisted her escape. She had already escaped when he was seen driving the vehicle. [ 35 ] So, applying the evidence to the elements of the offence: 1. A murder was committed. This was admitted by defence. 2. By someone other than the accused. While defence has admitted a murder was committed, there is no evidence upon which a properly instructed reasonable jury could conclude beyond a reasonable doubt that it was committed by someone other than the accused. 3.

Mens rea : knowledge. There is evidence upon which a jury could reasonably conclude that the accused acted knowing that the principal, whether it be he or another person, committed murder. 4. Actus reus : the accused received, comforted, or assisted the principal to escape. There is no evidence upon which a jury could conclude the accused helped the principal escape the scene of the crime. Neither is there evidence the accused’s act of driving the truck to Muskoday assisted an unknown principal. 5. Mens rea : purpose.

There is no evidence the accused acted for the purpose of enabling an unknown principal to escape liability. [ 36 ] A reasonable jury, properly instructed, could not return a verdict of guilty on this evidence. On the whole of the evidence, I find no sufficient case has been made out to put the accused, Kyle Crain, on trial for the offence of being an accessory after the fact to the murder of Drexlyr Whitehead, or any other indictable offence in respect of the same transaction. I discharge him pursuant to section 548(1) (

b) of the Criminal Code . Dated this 30 th day of March, 2023, at the City of Prince Albert, in the Province of Saskatchewan.

___________________________ F.M. Daunt. J