Her Majesty the Queen - v. -, 2021 SKPC 18

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 18 Date: March 8, 2021 Information: 991131940, 991109303 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Kearsey Appearing: Adam Breker For the Crown Louis Mercier For the Accused JUDGMENT M. HINDS, J INTRODUCTION [ 1 ] A trial was held before me on November 16 and December 22, 2020 respecting the accused, David Kearsey. On January 29, 2021 I provided my written decision regarding the admissibility of hearsay evidence ( see R v Kearsey , 2021 SKPC 11 ).

I admitted into evidence a portion of a 911 call between the 911 operator and Jason Spiers, who was deceased at the time of trial. Following the decision on hearsay evidence the Crown closed its case against the accused. The accused did not call any evidence at trial. The Crown and defence made arguments and I reserved my decision. This is my judgment regarding this trial.

[ 2 ] The accused David Kearsey faces six charges set out in Information 991131940 and an additional four charges set out in Information 991109303. All of these charges are in relation to a break and entry and an armed robbery which occurred at a dwelling house located at 867 Princess Street, Regina in the early morning hours of October 24, 2019. These ten charges are fully described in Appendix A. During argument on January 29, 2021 the Crown prosecutor entered a stay of proceedings on Count 7 of Information 991131940.

The Crown prosecutor also invited the Court to acquit the accused on Count 1 of Information 991109303. [ 3 ] The following witnesses testified on behalf of the Crown: Alyssa Tanner, Conway Sayer, Cst. Zachary White, Cst. Samuel Kosolofski, Cst. Reid Nicholson, Cpl. Anita Robinson and Sgt. Kyle McFetridge. [ 4 ] For the reasons which follow I find David Kearsey guilty of the following offences: Information 991131940 Counts 1,2,5 & 6. Information 991109303 Count 2.

Finding of Facts [ 5 ] Lisa Deroche, Kyle Tanner, Alyssa Tanner and Jason Spiers were living at 867 Princess Street on the evening of October 23 and the early morning hours of October 24, 2019. There were two bedrooms on the main floor and one bedroom in the basement. Lisa Deroche had a bedroom on the main floor of the home which it appears she shared with Jason Spiers. Kyle Tanner was also living on the main floor of the house in a second bedroom. Alyssa Tanner is the daughter of Lisa Deroche and Kyle Tanner.

Alyssa Tanner had a basement bedroom which is directly below her mother’s bedroom. [ 6 ] Alyssa Tanner was in her downstairs bedroom watching Netflix in the early morning hours of October 24, 2019 when she initially heard loud banging noises coming from upstairs. She heard two male voices telling her mother to open the door. She heard her mother Lisa Deroche say “Get out.” She heard Jason Spiers say “Hide. Get out of the way Lisa.” Ms. Tanner heard more banging noises coming from her mother’s bedroom. She heard things being thrown about and heard one of the male voices say “Give me the rings.” Ms.

Tanner concluded that a crime was being committed on the main floor of the house. She placed a call to 911 at 2:47 a.m. shortly after she heard the loud banging noises. Ms. Tanner remained on the 911 call for 8 minutes and 41 seconds. During most of the time that Ms. Tanner spoke to the 911 operator she was hiding in her bedroom closet. After she heard the home invaders leave from the back door of the residence she went upstairs. Ms. Tanner observed that the main floor was in shambles. In particular the front door had been violently pushed in.

The door to her mother’s bedroom had been ripped from its hinges and was lying on the bed. Household articles and clothing were strewn haphazardly about her mothers’ bedroom. Her mother told her they had been robbed and three guys had been in the house. She also observed that Jason Spiers was bleeding from his head. [ 7 ] Alyssa Tanner passed her cell phone to her mother, Lisa Deroche, who spoke to the 911 operator for 35 seconds from 8:42 to 9:17. The cell phone was then passed to Jason Spiers who spoke with the 911 operator for 2 minutes and 38 seconds from 9:18 to 13:56.

The entirety of Jason Spiers conversation with the 911 operator is set out in Appendix B. The salient part of Mr. Spiers evidence can be summarized as follows: he thought that definitely two or maybe three guys with face masks had broken into the home and robbed him and Lisa Deroche of some money and jewelry. The guys had shot guns and knives. One of the guys hit him in the head with a gun and as a result he was bleeding from the head.

As Jason Spiers was speaking to the 911 operator he observed that the police had two guys in custody outside of the house. [ 8 ] Several members of the Regina Police Service arrived at 867 Princess Street shortly after Alyssa Tanner first made her call to 911. [ 9 ] Cst. White is assigned to the canine unit. He was dispatched to 867 Princess Street (the residence) at 2:48 a.m. for a break and entry in progress. He arrived on the scene at 2:49 a.m. and drove north past the residence. He observed that the front door appeared to be open.

Constables Kosolofski and Cheema arrived on the scene shortly afterwards and attended to the front of the residence. Cst. White parked his unmarked SUV in the mouth of the alley behind the residence. He got out of his police vehicle and walked up to the back fence of 867 Princess Street. As he was walking to the back fence of the residence he heard some yelling come from the direction of the residence. He also heard Cst. Kosolofski announce over the police radio that the suspects were running out the back door of the residence. Cst.

White then saw three people, he believed to be males all wearing dark clothing exit out of the back door of the residence. They had their faces masked. They ran towards the back fence where Cst. White was situated. Once the three people got near to the back fence Cst. White challenged them and told them to get down on the ground. The males immediately turned around and went back towards the residence. It appeared to him that the males were jumping over the fence to the south of the residence. Cst. White returned

to his vehicle and got his police dog ready to conduct a search at the back of the residence. Cst. White was then notified that three people were in custody. [ 10 ] Cst. Kosolofski and his partner Cst. Cheema were dispatched to 867 Princess Street just after 2:45 a.m. They were two blocks away. They arrived on scene a short time later. The officers observed a Dodge Nitro motor vehicle parked nearby the residence on Third Avenue. A female was observed to be sitting in the driver’s seat. The vehicle was running. Cst. Cheema went to speak to the driver of the vehicle. Cst.

Kosolofski got out of his vehicle and went up to the front of the residence. He had his firearm drawn to the low ready position. He was watching the front of the residence and he could hear screaming coming from inside. Other police officers began to arrive on scene. Cst. Kosolofski then saw the front door of the residence open. He observed a larger heavy-set male in the doorway who had a mask covering his face and was wearing a dark jacket or hoodie. This larger heavy-set male had a firearm in his right hand. Cst.

Kosolofski yelled “Police.” He heard people yelling “Oh Shit.” He then saw people within the house running towards the back of the house. Cst. Kosolofski then ran down a walkway along the north side of the residence into the backyard. He observed three males exiting the back door of the residence all of whom were wearing face masks. One large heavy-set male with “rainbow” (multi coloured) shoes had just come out of the back door and was on the south side of the residence and turned to run westbound towards the front of the residence. The other two males were exiting.

One of these males was large and heavy-set dressed in a black top and wearing blue jeans. The other male was thinner and shorter wearing a black mask and a black long sleeved jacket or hoodie with white stripes on the sleeves. He observed these two males go to the south side fence in the backyard. The thinner shorter male got over the south side fence. The heavy-set male was on the south fence trying to go over it. Cst. Kosolofski grabbed the heavy-set male by the back of his shirt and pulled him off the fence. Cst.

Kosolofski used his radio to indicate the male wearing rainbow shoes had gone towards the front of the residence on Princess Street and the other male had gone over the south fence towards 3 rd Avenue. [ 11 ] The male who Cst. Kosolofski pulled off the south fence was Frankie Brass. When the two men turned to face each other a firearm fell from Mr. Brass on to the ground. This firearm was a sawed-off .22 calibre rifle. A physical fight ensued between Cst. Kosolofski and Mr. Brass. Cst. Kosolofski subdued and handcuffed Mr. Brass. Cst. Kosolofski then picked up the sawed-off rifle from the ground.

He discovered there was a loaded magazine attached to the rifle. He seized the sawed-off rifle and marked it as Police Exhibit 908 001. Photographs of the sawed-off rifle were entered into evidence at trial as Exhibit P-7 at pages 3 & 4. It is black and brown in colour. Cst. Kosolofski ejected the magazine and observed there were several rounds of ammunition inside of it. The magazine and four rounds of ammunition were seized by Cst. Kosolofski and marked as Police Exhibit 908 001A.

Photographs of the magazine and four rounds of .22 calibre ammunition were entered into evidence at trial as Exhibit P-7 at pages 4 & 5. Cst. Kosolofski also testified that he found one round inside the chamber of the sawed-off rifle. He thought this round was ready to be fired. Cst. Kosolofski also found what he thought were live rounds of .22 calibre ammunition in the pockets of Frankie Brass. Neither Cst. Kosolofski nor any other police officer testified that the rounds of ammunition obtained from Mr.

Brass’s pockets were marked as a police exhibit. [ 12 ] Just after he was done dealing with Frankie Brass, Cst. Kosolofski went to the front of the residence. He observed that his police partner, Cst. Cheema had a male sitting in a patrol car. Cst. Kosolofski testified this was the man he had earlier seen to be on the south side of the back of the residence, wearing dark clothing and rainbow shoes who was running westbound towards the front of the residence. He immediately recognized this person to be Conway Sayer with whom he had dealings in the past. [ 13 ] Cst.

Kosolofski testified that the larger set male he had initially seen in the front doorway of the residence who was masked, wearing a dark jacket or hoodie and had a firearm in his right hand could have been either Frankie Brass or Conway Sayer. [ 14 ] Cst. Nicholson and his partner Cst. Young were dispatched to a break and enter in progress at the residence at 2:50 a.m. and arrived at 2:56 a.m. Constables Kosolofski, Cheema and White had arrived at the residence before Constables Nicholson and Young. Cst. Nicholson heard a radio transmission from Cst.

Kosolofski that there were noises heard from inside the house and that males were running toward the back of the house. Cst. Nicholson parked his police cruiser on 3 rd Avenue near the back alley behind the residence. Cst. Young went to the front of the residence. Cst. Nicholson got out of the cruiser and walked to the mouth of the back alley. Cst. Nicholson then heard radio communication from Cst. White that three males had exited the back of the house and were fleeing to the south. At this moment in time Cst. Nicholson heard what sounded like someone scrambling through backyards and hopping over fences.

He then went to the southern side of the southernmost yard (see Exhibit p-10) where he saw a male in a black hoodie, wearing a black bandana trying to find his way out of the yard. Cst. Nicholson shone his flashlight on the male and instructed him to “Show me your hands and lay down on the ground.” The male showed Cst. Nicholson his hands briefly and then quickly returned his hands to his waistband and dropped a black pistol and black folding knife onto the ground. The male was the accused David Kearsey. Mr. Kearsey was arrested and put in the back of the police cruiser. [ 15 ] The black pistol which Mr.

Kearsey dropped was marked as Police Exhibit 787 - 001. As previously discussed, the sawed-off .22 calibre rifle which Frankie Brass dropped was marked as Police Exhibit 908 -001. The black pistol and the sawed-off .22 calibre gun were sent to the RCMP testing laboratory in Ottawa for testing. The black pistol was described as one

(1) Marksman model 2004, calibre .177 (4.5 mm) pellet, single shot air pistol, bearing serial number 50802623. The sawed-off .22 calibre rifle was described as one

(1) Savage, model unknown, calibre .22 long rifle, bolt action rifle, serial number obliterated (see Exhibit P-2). It appears that police

also submitted two (2) calibre .22 long rifle cartridges to the RCMP testing laboratory. The exhibit number associated with the two (2) calibre .22 long rifle cartridges is 912-001. An examination of Exhibit P-7 page 6 appears to reveal that Cst. Cheema #912 was the exhibit officer with respect to two (2) .22 calibre bullets which he marked as Police Exhibit 912 -001. Cst. Cheema did not testify at trial. Had he been called to testify at the trial, I expect Cst. Cheema would have testified where he seized these two cartridges from.

Were these two .22 calibre cartridges seized from the magazine with ammunition, which Cst. Kosolofski marked as Police Exhibit 908 – 0001A? Were these two .22 calibre cartridges seized from the pockets of Mr. Brass? I can speculate, but I do not know. At trial no police officer testified as the origin of the two (2) calibre .22 cartridges. I find the Crown has not proved beyond a reasonable doubt where the .22 calibre cartridges came from.

This appears to be an oversight. [ 16 ] Testing was conducted on the black pistol, the sawed-off .22 calibre rifle and the two (2) calibre .22 cartridges at the RCMP testing laboratory and a Certificate of Analysis was prepared by analyst Brian Milne. The Certificate of Analysis was produced in evidence as Exhibit P-2, pursuant to

section 117.13 of the Criminal Code . [ 17 ] It was determined that the air pistol dropped by Mr. Kearsey is not deemed to be a firearm within the meaning of section 84(3) of the Criminal Code . [ 18 ] It was determined that the sawed-off .22 calibre rifle dropped by Mr.

Brass is a firearm and a prohibited firearm within the meaning of sections 2 and 84(1) of the Criminal Code . [ 19 ] It was determined that the two calibre .22 long rifle cartridges are of a design for use in the sawed-off rifle and are ammunition within the meaning of section 84(1) of the Criminal Code , in that they are cartridges containing a projectile designed to be discharged from a firearm. [ 20 ] It is common ground that on October 24, 2019 Mr.

Kearsey was prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition prohibited ammunition or explosive substance (see Exhibit P-1 Order of Prohibition). [ 21 ] Conway Sayer is in the witness protection program. On October 24, 2019 he was living in Regina and was charged with break and enter and commit armed robbery with a firearm in relation to 867 Princess Street. He testified that David Kearsey (Newfie), Frankie Brass (Roosevelt) and he were members of the Indian Mafia gang. Conway Sayer held the rank of Vice President. He was second in command.

David Kearsey and Frankie Brass were soldiers. A woman named Chelsey was not a member of the gang. [ 22 ] Conway Sayer testified that he was driving around with Chelsey and David Kearsey in the early morning hours of October 24, 2019. Conway Sayer admitted he was using fentanyl and meth on October 24, 2019. These three individuals hatched a plan to rob Lisa Deroche of drugs and money it was thought that she had in her house located at 867 Princess Street. It was also decided to get Frankie Brass to join them in the robbery. Frankie Brass agreed to participate in the plan.

Chelsey drove the three men to Princess Street where they got out of the vehicle. Chelsey parked the vehicle nearby and waited for the men to return. [ 23 ] All three men were members of the Indian Mafia gang and had their faces masked. Conway Sayer testified that David Kearsey opened the screen door to 876 Princess Street and then he, Conway Sayer kicked in the front door to the residence. Mr. Sayer further testified that David Kearsey and Frankie Brass entered the residence first and confronted Lisa Deroche and Jason Spiers (Chiz) and told them to give up their money and dope.

They chased the couple into a bedroom where Frankie Brass forced the door off its hinges. The three men demanded drugs and money. They hit and punched Jason Spiers and rummaged through the bedroom. Conway Sayer testified he thinks David Kearsey hit Jason Spiers a couple of times with the stock of the sawed-off gun. They got some money from the couple. Frankie Brass handed Conway Sayer some money which he put in his pockets. Mr.

Sayer further testified that while Frankie Brass kept the couple in their bedroom David Kearsey went to a nearby bedroom where he opened the door and encountered a different man (Kyle Tanner) who he ordered to lie on the floor. Mr. Sayer testified that throughout this time David Kearsey was armed with a .22 sawed-off rifle. David Kearsey took some money from the man on the floor. Conway Sayer took a safe from this room and put it down in the living room. David Kearsey came out of the second bedroom and the men agreed they should leave the house. Mr.

Sayer testified he walked to the front door and he noticed a police officer outside. He yelled “Cops.” The three men ran out the back door of the residence. Frankie Brass went towards the back fence and he, Conway Sayer and David Kearsey ran to the right towards a side fence. Conway Sayer testified that he made his way to the front of the residence where he was arrested. [ 24 ] Conway Sayer maintained that neither he or Frankie Brass had any weapons on them during the break and entry and robbery.

He stated that after they made the plan to do the robbery they stopped somewhere and David Kearsey got a .22 sawed-off gun which was used by the Indian Mafia gang. Conway Sayer testified that when the three men went up to the residence David Kearsey concealed the

sawed-off gun in his pants and once he was inside the house he pulled the gun out. Conway Sayer testified that David Kearsey had abrown sawed-off .22 gun as shown in Exhibit P-7 pages 3 & 4. Conway Sayer was not aware of any other gun being involved in therobbery. Vetrovec Self Caution [25] In this case I am of the view it is necessary to give myself an “unsavoury witness” self-caution in relation to Conway Sayer’sevidence in accordance with the law set out in R v Vetrovec, (SCC), [1982] 1 SCR 811 [Vetrovec].

The evidence beforeme reveals that Conway Sayer was the Vice President of the Indian Mafia on October 24, 2019 and had consumed fentanyl andmethamphetamine. He decided that three members of the gang including himself were going to break into the home of Lisa Deroche androb her of drugs and money. Mr. Sayer has been charged with serious offences in relation to this matter, which are not yet resolvedbefore the courts.

He is in the witness protection program and lives and works outside the province of Saskatchewan. [26] In R v Campbell, 2002 NSCA 35, 163 CCC (3d) 485 Bateman J.A., speaking for the Court, said a witness is consideredunsavoury "where it is suspected that his or her evidence is proffered for an ulterior motive - for example, to divert suspicion or blamefrom himself or herself, or to gain advantage such as immunity from prosecution for the current offence or concessions in relation toanother offence, or for monetary reward." While Mr.

Sayer testified that he has not been offered immunity from prosecution heotherwise nicely fits this description. [27] In R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223 Mr.

Justice Kalmakoff writing for the Court had occasion to consider thepurpose of the Vetrovec caution and the governing law with respect to the application of Vetrovec as follows: [57] The purpose of a Vetrovec caution is to alert the trier of fact to when and why it is unsafe to find an accused guilty on theunsupported evidence of certain witnesses who, because of their amoral character, criminal lifestyle, past dishonesty, or interest in theoutcome of the trial, cannot be trusted to tell the truth: R v Khela, 2009 SCC 4 at para 3, [2009] 1 SCR 104.

Such caution to a jury (orself-caution in a judge alone trial) is not necessary every time a witness presents with some or all of those characteristics. In R v Smith,2018 SKCA 42, 363 CCC (3d) 559, Schwann J.A. provided a useful

summary of the governing law with respect to the application ofVetrovec: [35] In assessing when to give a warning, the Supreme Court of Canada in Vetrovec moved away from a rigid, categorical approach inrelation to Crown witnesses in favour of a more holistic approach based on the trial judge's appreciation of the circumstances and factorsat play in the trial that might otherwise impair the credibility or trustworthiness of a particular witness. [36] To that end, trial judges must examine the circumstances of each case and the factors that might impair the worth of a witness'stestimony (Brooks at para 5; R v Carroll, 2014 ONCA 2 at para 65, 304 CCC (3d) 252 [Carroll]).

Where a witness's evidence is centrallyimportant to the Crown's case, yet may be suspect because of the disreputable and untrustworthy character of the witness, a "clear andsharp" warning may be appropriate to alert the jury to the risks of adopting the evidence without more (Brooks at para 3; Carroll at para62). [37] Broadly speaking, in assessing whether a Vetrovec warning should be given, the trial judge must give prominence to two factors:the credibility of the witness and the importance of the witness's evidence to the Crown's case. This point was summarized in Brooks: [80] In

summary, two main factors are relevant when deciding whether a Vetrovec warning is necessary: the witness's credibility, andthe importance of the witness's testimony to the Crown's case. No specific threshold need be met on either factor before a warningbecomes necessary. Instead, where the witness is absolutely essential to the Crown's case, more moderate credibility problems willwarrant a warning. Where the witness has overwhelming credibility problems, a warning may be necessary even if the Crown's case is astrong one without the witness's evidence.

In short, the factors should not be looked to independently of one another but in combination. [38] Trial judges must carefully assess the trustworthiness of Crown witnesses who seek to avoid prosecution or incarceration bytestifying for the Crown. That said, and as courts have clarified, this factor — on its own — does not mandate a Vetrovec warning(Brooks at para 12; Carroll at para 66).

Instead, trial judges must assess the credibility of the Crown witness — including the testimonyof accomplices — in light of the circumstances of the case to determine whether the trustworthiness of that witness is impaired. ... [42] Whether a Vetrovec warning should be given is a matter of discretion.

The trial judge is, after all, "an eyewitness to the testimony ofthe witness and the temperature of the trial proceedings" (Carroll at para 60) and therefore best positioned in the ebb and flow of the trialto assess and consider the "myriad factors that might impair the worth of a witness' testimony" (Carroll at para 65; Vetrovec at 823;Brooks at para 5). ... [28] In my view, Conway Sayer’s evidence, is important to the Crown’s case against David Kearsey. Without Mr.

Sayer’s evidence,the Crown would have some difficulties in establishing that David Kearsey broke and entered 867 Princess Street, brandished a .22calibre sawed-off rifle and committed a robbery. Absent the evidence of Mr. Sayer, the Crown would have a circumstantial case against

Mr. Kearsey, Mr. Brass and Mr. Sayer. The civilian evidence reveals that a break and entry and robbery involving two or three menoccurred at 867 Princess Street began around 2:45 a.m. The men were masked and wearing dark clothing. One of the men assaultedMr. Spiers using a gun. Police responding to a 911 call involving a robbery in progress arrived on the scene and observed three menleave the residence in a hurry out the back door. Thereafter police very quickly arrested each of the three men outside of the residence.

This in my view, is confirmatory evidence which restores my faith in most of the evidence provided by Conway Sayer. As a result I amnot prepared to disregard Conway Sayer’s evidence in its entirety. Rather, I accept Mr. Sayer’s evidence that on October 24, 2019 he,David Kearsey and Frankie Brass formed a plan and carried it out, to break into 867 Princess Street and rob the occupants. [29] There is one particular factual matter which I have concerns respecting the credibility or trustworthiness of Mr. Sayer.

That is hiscontention that David Kearsey had a .22 calibre sawed- off rifle in his pocket when he entered the residence and brought it out during therobbery and hit Mr. Spiers with it. Given the relatively short time the three men were in the residence and their hasty retreat from it, onewould expect that this .22 calibre sawed-off rifle would be found on Mr. Kearsey at the time of his arrest. The evidence of Cst.Kosolofski appears to be at odds with Mr. Sayer’s account of break and enter and robbery at the residence. Cst.

Kosolofski testified thatwhen he initially observed the front door of the residence to open he saw a larger heavy-set male in the doorway who had a firearm in hisright hand. Cst. Kosolofski was of the view that the larger heavy-set male he had initially seen in the front doorway of the residencecould have been either Frankie Brass or Conway Sayer. Indeed a few minutes later when Cst. Kosolofski pulled Frankie Brass off thesouth fence in the backyard of the residence he observed a .22 calibre sawed-off rifle fall from Mr. Brass to the ground. In addition, hefound .22 calibre ammunition in Mr. Brass’s pocket.

This evidence supports a factual finding that Frankie Brass, not David Kearsey wasin possession of the .22 calibre sawed-off rifle throughout the incident. [30] I note that at no time was Mr. Kearsey described as a heavy-set male. Rather, he was described by Cst. Kosolofski as being thethinner male who made it over the south fence in advance of Mr. Brass. In addition, a .22 calibre sawed-off rifle was not found on ornear Mr. Kearsey when he was arrested. Rather, Cst. Nicholson testified that when he arrested Mr. Kearsey he observed a black pistoland a folding knife drop from Mr.

Kearsey’s waistband to the ground. [31] As a result of these differences in the evidence regarding the .22 calibre sawed-off rifle I am not convinced beyond a reasonabledoubt that David Kearsey personally possessed and used the .22 calibre sawed-off rifle during the break in and robbery. It is highlyprobable that Frankie Brass possessed and used the .22 calibre sawed-off rifle while in the residence. Based on the evidence before me, Iam certain one of the three men or some combination thereof possessed and used the .22 calibre sawed-off rifle while carrying out thebreak and entry and robbery.

Has the Crown proved Mr. Kearsey is guilty of any of the offences for which he has been charged? [32] The Crown takes the position that in the early morning hours of October 24, 2019 Conway Sayer, the accused David Kearseyand Frankie Brass formed a plan and agreed to break and enter 867 Princess Street and commit a robbery while using a firearm.

I agree,the evidence supports this finding of fact. [33] The Crown submits that all three men were active participants in the break and entry and robbery with a firearm and hence arejoint principals to this offence and the other firearm possession charges before the Court. In the alternative, the Crown takes the positionthat the three men are all parties to these offences. [34] Section 21(1) of the Criminal Code sets out the liability of principals and parties to an offence. It reads 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. [35] In R v Thatcher, (SCC), [1987] 1 SCR 652 the Supreme Court considered

section 21 of the Criminal Code andconfirmed that a person may commit an offence in several ways:

1. As a principal, that is by personally doing everything necessary to commit the offence either alone or with somebody else whoparticipates in the same way. 2. As an aider, that is a person may commit an offence by helping another person to commit that offence by doing something or failing todo anything that it is his/her legal duty to do for the purpose of helping the other person commit the offence. 3.

As an abettor, that is a person who actively encourages another person to commit that offence. [36] In R v Pickton, 2010 SCC 32, [2010] 2 SCR 198 the Supreme Court determined that co-principal liability is established wheretwo or more people “actually commit” an offence and also where two or more persons together form an intention to commit an offence,are present at its commission, contribute to it , although they do not personally commit all its essential elements. (Watt’s Manual of Criminal Jury Instructions, 2nd Edition, at page 451). [37] In this case the evidence satisfies me beyond a reasonable doubt that Conway Sayer, David Kearsey and Frankie Brass formed aplan and agreed to break and enter 867 Princess Street and commit a robbery using an “Indian Mafia” firearm.

All three men broke into867 Princess Street and had a role in the robbery. David Kearsey held the screen door open while Conway Sayer kicked in the frontdoor. Frankie Brass forced a bedroom door off its hinges. All three knew a firearm, the .22 calibre sawed-off rifle would be brandishedin the course of the robbery.

While I am unable to determine exactly who possessed the firearm and used it in the course of the robbery,I am satisfied all of the men knew the sawed-off rifle would be shown to the occupants in order to intimidate and frighten them intosubmission. [38] For many of the charges before the Court, the Crown must prove possession. Section 4(3)(

b) of the Criminal Code provides forjoint possession. It states as follows:

(3) For the purposes of this Act, (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in their possession, it shall be deemed tobe in the custody and possession of each and all of them. In this case I am of the view that the three men knew and consented to one of them possessing the .22 calibre sawed-off rifle in theresidence. Hence, I find they jointly possessed the .22 calibre sawed-off rifle. [39] I find David Kearsey guilty as a co-principal to the following offence: Information 991131940

(1) Break and enter a place, to wit a dwelling house situated at 867 Princess Street and did commit therein the indictable offence ofarmed robbery using a firearm, contrary to section 348(1)(

b) of the Criminal Code. In the event I have erred in determining Mr. Kearsey’s liability on this offence as a co-principal, I find he is liable on this offence as aparty to the offence.

He aided the other two men in committing the offence by going in the residence demanding drugs and money. [40] The evidence is clear that David Kearsey had his face masked, as a result I find him guilty on Information 991131940, Count 2. [41] I will enter judicial stays on Counts 3 & 4 on Information 991131940 as I am of the view that both of these charges offend therule against multiple convictions as set out in R v Kienapple, (SCC), [1975] 1 SCR 729.

These stays are conditionaluntil all appeals from this judgment have been concluded. [42] As a result of my determination that David Kearsey jointly possessed the .22 calibre sawed- off rifle which the Crown has

established was loaded, I find David Kearsey guilty of the following offences: Information 991131940

(5) Possess a firearm, to wit: .22 calibre rifle knowing that he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code .

(6) Possess a loaded firearm, to wit: a .22 calibre rifle, not being the holder of an authorization of licence under which he may possess the said firearm in that place, contrary to section 95(1) (

a) of the Criminal Code . Information 991109303

(2) Possess a firearm, to wit: a .22 calibre rifle, while he was prohibited from doing so by reason of an order made pursuant to section 109(2) of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code . [ 43 ] Given my prior finding that the Crown has not proved beyond a reasonable doubt that where the two (2) calibre .22 cartridges came from, I find David Kearsey not guilty of Count 3 set out in Information 991109303 (possession of ammunition). I also find that the Crown has not proved that David Kearsey was subject to any undertaking on October 24, 2019 and hence I find him not guilty of Count 1 as set out in Information 991109303 (breach of undertaking). [ 44 ] There is some evidence to suggest that Jason Spiers may have been stabbed in the hand during the robbery.

This evidence comes from Jason Spiers who told the 911 operator that the suspects had shotguns and knives. He also indicated he was bleeding from both his head and his hand. However, Mr. Spiers was less certain on the details of the stabbing. The 911 operator asked Mr. Spiers the question “Do you know what kind of a knife it was that they stabbed you with?” Mr. Spiers responded as follows: “I have no idea man.” While the testimony of Cst. Nicholson reveals that at the time Mr. Kearsey was arrested, he was in possession of a black pistol and a folding knife, there is no evidence that Cst.

Nicholson or any other officer examined the folding knife. There are several questions which remain unanswered. Could this particular folding knife be used as a weapon? Did it appear the folding knife had been used recently? In addition, for some reason neither the folding knife itself or a photograph of it were entered as an exhibit in these proceedings. In these circumstances, I have a reasonable doubt that Mr. Kearsey had in his possession, a weapon: a folding knife for the purpose of committing an offence. As a result I find David Kearsey not guilty of Count 5 as set out in Information 991109303.

CONCLUSION [ 45 ] In

summary I find the accused, David Kearsey guilty of the following offences: Information 991131940

(1) Break and enter a place, to wit a dwelling house situated at 867 Princess Street and did commit therein the indictable offence of armed robbery using a firearm, contrary to section 348(1) (

b) of the Criminal Code .

(2) With intent to commit an indictable offence did have his face masked, contrary to section 351(2) of the Criminal Code .

(5) Possess a firearm, to wit: .22 calibre rifle knowing that he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code .

(6) Possess a loaded firearm, to wit: a .22 calibre rifle, not being the holder of an authorization of licence under which he may possess the said firearm in that place, contrary to section 95(1) (

a) of the Criminal Code . Information 991109303

(2) Possess a firearm, to wit: a .22 calibre rifle, while he was prohibited from doing so by reason of an order made pursuant to section 109(2) of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

______________________________ M. Hinds, J Appendix A Information 991131940 On or about October 24, 2019 at or near Regina, Saskatchewan David Kearsey did:

(1) Break and enter a place, to wit a dwelling house situated at 867 Princess Street and did commit therein the indictable offence of armed robbery using a firearm, contrary to section 348(1) (

b) of the Criminal Code .

(2) With intent to commit an indictable offence did have his face masked, contrary to section 351(2) of the Criminal Code .

(3) Use a firearm, to wit: .22 calibre rifle while committing the indictable offence of break and enter to commit armed robbery, contrary to section 85(1) (

a) of the Criminal Code .

(4) Have in his possession a weapon, to wit: .22 calibre rifle for the purpose of committing an offence, contrary to

section 88 of the Criminal Code .

(5) Possess a firearm, to wit: .22 calibre rifle knowing that he was not the holder of a licence under which he may possess it, contrary to section 92(1) of the Criminal Code .

(6) Possess a loaded firearm, to wit: a .22 calibre rifle, not being the holder of an authorization of licence under which he may possess the said firearm in that place, contrary to section 95(1) (

a) of the Criminal Code .

(7) Have in his possession a weapon, to wit: airsoft pistol for the purpose of committing an offence, contrary to

section 88 of the Criminal Code . Note: On January 29, 2021 the Crown prosecutor entered a stay of proceedings on this charge. Information 991109303 On or about October 24, 2019 at or near Regina, Saskatchewan David Kearsey did:

(1) Without lawful excuse, fail to comply with a condition of an undertaking given to a peace officer or an officer in charge, to wit: the accused shall stay inside your approved residence from 10:00 p.m. each night to 7:00 a.m. the next morning unless you have the prior (written) permission of a member of the Regina Police Service or the Court to be elsewhere, and come to the door of your approved

residence when asked to do so by a police officer or a designate who may be checking the residence and curfew conditions of this order, and/or not be in a motor vehicle unless accompanied by the registered owner, contrary to section 145(5.1) of the Criminal Code . Note: On January 29, 2021 the Crown prosecutor invited the Court to acquit the accused of this charge as the Crown did not present any evidence at trial respecting any Undertaking which the accused was subject to on October 24, 2019.

(2) Possess a firearm, to wit: a .22 calibre rifle, while he was prohibited from doing so by reason of an order made pursuant to section 109(2) of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(3) Possess ammunition, to wit .22 calibre ammunition, while he was prohibited from doing so by reason of an order made pursuant to section 109(2) of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(4) Possess a firearm, to wit: Airsoft pistol, while he was prohibited from doing so, by reason of an order made pursuant to section 109(2) of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code . Note: On July 24, 2020 the Crown prosecutor entered a stay of proceedings on this count.

(5) Have in his possession a weapon, to wit: a folding knife for the purpose of committing an offence, contrary to

section 88 of the Criminal Code . Appendix B Exhibit P-4 911 call to Regina Police Service. October 24, 2019. Call recording begins at 2:47 a.m. Transcript begins at 8:42 into the call - or approximately 2:56 a.m. 911 Hi there, is this Lisa? LISA DEROCHE This is 911 Ok. Lisa, were there three suspects or two suspects? LISA DEROCHE There was three suspects as far as I remember 911 Three. Is anybody hurt?

LISA DEROCHE Mumbles.. yes, we are a little bit hurt, we got hit in the head a few times 911 Ok, you got hit in the head LISA DEROCHE Uhh..my.. friend is bleeding all over the place 911 Ok we’ll send an ambulance as well LISA DEROCHE I don’t think we need an ambulance 911 You don’t.. but if you were hit in the head they should check you LISA DEROCHE ( do you need an ambulance? )

911 Do you know the names of the suspects at all? LISA DEROCHE No, I don’t think.. they had masks on 911 The suspects had masks, ok did they have guns? LISA DEROCHE Yes they had a gun 911 k. Any knives? LISA DEROCHE Yes. They had a knife, they had a gun.. 2 guns 911 2 guns? LISA DEROCHE Yes, their faces were covered. They stabbed him in the hand and in the head 911 They stabbed him? LISA DEROCHE They cut off my finger(s) 911 Your friend got stabbed in the hand? LISA DEROCHE And in the head 911 In the hand and head? LISA DEROCHE Yeah 911 Ok, an ambulance is going to be needed.

Are you going to be able see police there? LISA DEROCHE Uh yes, the police are outside back, they have the suspects 911 They have THE suspect? LISA DEROCHE Yes, I think they have THE suspect 911 Ok, I thought you said there was three LISA DEROCHE Oh, they only have one of them 911 So describe the other two. Describe them LISA DEROCHE I can’t describe them, I don’t know which one they have and they were all wearing masks and they made me look at the floor 911 k. they had on what kind of masks?

LISA DEROCHE Um I dunno.. ( calls out.. can you describe them or something I dunno.. ) Spiers You know what pieces of shit indians looked like, that like to rob people 911 I just need to.. ok.. but Spiers That’s what they look like 911 Ok, I just need to know Spiers Scumbag Indians 911 I need to know descriptions tho, that doesn’t help me sir Spiers Kay, well I dunno what they look like, they were wearing fucken masks and had shotguns and knives 911 Sorry? Spiers ( Mumbles ) they had shotguns, knives 911 With shotguns and knives? Spiers Yes 911 K did you know how tall they were? How old they were?

Spiers I have no idea, they jus stood with the gun and bashed my fucken head in 911 What’s your name? Spiers I’m sorry to be hysterical but.. 911 I understand, I understand but we need to be able to find them so we need clothing.. Spiers The cops found them, listen they’re laying in the back yard handcuffed right now

911 K but you said.. I thought there were OUTstanding males. I thought there was three Spiers No no no, the cops got em. The cops did their fucken job 911 Were there more than that one guy? Spiers Yeah there was two or three of them 911 K. what is your name? Spiers Jason Spiers 911 Jason what? Spiers Spiers 911 Spiers? Spiers s-p-i-e-r-s 911 Ok. So there is three guys and they have one of them in the back, is that what you’re saying? Spiers Pardon me? 911 the male in the back and there was two others? Spiers Ahhh, I think so. There was definitely two maybe three 911 Ok. You’re not sure if there was two or three?

Spiers No, there was two, MAYBE three 911 K Spiers ( asking someone in the background ) there WAS three? Yeah… fucking ( inaudible ) pieces of shit holy fuck man 911- starts At 8:41 We are going to send the ambulance to check you as well ok. Are you bleeding form the head or the hand? Spiers Oh yeah 911 Both places? Spiers Oh yea, it never stopped 911 Do you know what kind of knife it was that they stabbed you with? Spiers I have no idea man 911 Ok Spiers NO idea 911 Ok Spiers ( talking to someone - hey, did you touch em? ).. they’ve got two 911 they got two? Spiers They got two guys in custody now 911 Ok.

Do you think that there is a third one or do you thing that.. Spiers I don’t know for sure if there is a third one, there could have been 911 Ok. Spiers um I think two, I think there was only two 911 Lisa said three suspects, I just want to make sure.. if one is still out there Spiers We don’t know for sure. We know there was two. 911 Ok, you know for sure two but Lisa thinks maybe three Spiers *talking to Lisa- I dunno Lisa, I think there only might have been two 911 Ok and do you know them? Spiers No I don’t know them. Do you think that we should know people like this?! 911 Ok. What did they take from you guys?

Spiers Money. They just robbed us for money. 911 Ok. And did they steal jewelry? Spiers Well they stole jewelry, they stole money 911 How much money do you know Spiers They thought we had a bunch of drugs or some fucken thing and we don’t have no dope here 911 They were looking for drugs? Spiers I guess so. Like we don’t have no fucken drugs, they got the wrong house 911 k. What part of the house are you in right now? Spiers Kitchen 911 k. Are you looking out the window right now? Spiers Pardon me? 911 Are you looking out the window? Spiers No 911 Are you with police yet? Spiers Pardon me?

911 Are you with any police officers yet? Spiers Yeah, the cops are here, they been here for while 911 Ok but, are they in the house or just in the yard? Spiers Yeah, they’re in the house 911 Ok. I will let you go and talk to them Spiers Huh? 911 If they’re inside your house with you, I will disconnect Spiers Yeah. Ok 911 Ok. Thanks