R v Blachford, 2023 ABKB 193

Court of King’s Bench of Alberta Citation: R v Blachford, 2023 ABKB 193 Date: 20230404 Docket: 200133114Q1 Registry: Peace River Between: His Majesty the King Crown - and - Mathew Blachford Accused _______________________________________________________ Reasons for Decision of the Honourable Justice John T. Henderson _______________________________________________________ I.

Overview [ 1 ] Mathew Blachford is charged with second-degree murder in relation to the death of Victorine Jennifer Donovan. [ 2 ] In the early morning hours of October 8, 2019, Ms Donovan was viciously attacked in the parking lot of an apartment complex in Peace River, Alberta. During the attack Ms Donovan was struck several times causing multiple broken facial bones. She was also shot 5 times in the head and shoulder area.

One of the .22 calibre bullets entered Ms Donovan’s body near the side of the left eye, passed trough the temple bone and the left brain before finally coming to rest in the right side of the brain. Another bullet penetrated the chest injuring both lungs and the aorta, which is the main artery that supplies blood to the body. This gunshot caused catastrophic bleeding within both chest cavities. In the opinion of the Medical Examiner, the cause of death was multiple gunshot wounds. He opined that any one of the 5 bullet wounds could have caused Ms Donovan’s death.

[3] No direct evidence was tendered by the Crown to prove that Mr Blachford was responsible Ms Donovan’s death. However,extensive video surveillance evidence and other circumstantial evidence was tendered. The Crown submits that this evidence provesbeyond a reasonable doubt that: (

i) Mr Blachford committed the unlawful acts of assaulting and shooting Ms Donovan; (ii) These unlawful acts committed by Mr Blachford caused the death of Ms Donovan; and (iii) Mr Blachford meant to cause Ms Donovan’s death or bodily harm to Ms Donovan that he knew was likely to cause her deathand was reckless as to whether death ensued.

The Crown submits that Mr Blachford’s intention can be inferred from the act itself: R vCooper, (SCC), [1993] 1 SCR 146 at p 159; R v Sylvester, 2021 ABCA 312 at para 34. [4] The Crown seeks a conviction on the single count on the indictment. [5] It is not contested that Ms Donovan died because of the wounds she suffered on October 8, 2019. However, Defence counselsubmits that the evidence does not establish that Mr Blachford was responsible for Ms Donovan’s death.

He submits that the portions ofthe video surveillance evidence purporting to show the events at critical times are of poor quality, do not establish that Mr Blachford wasat the scene of the crime, and cannot be used to establish guilt. Further, Defence counsel submits that other reasonable inferences areavailable from the circumstantial evidence, thus giving rise to reasonable doubt. [6] Mr Blachford seeks an acquittal. [7] The only issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr Blachford was the personwho was responsible for Ms Donovan’s death. II.

Burden of Proof [8] The starting point in any criminal trial is that an accused is presumed innocent until proven guilty. This means that aconviction can only be entered if the Crown has tendered sufficient evidence to prove Mr Blachford’s guilt beyond a reasonable doubt.The burden remains on the Crown throughout the trial and never shifts to Mr Blachford.

If a reasonable doubt exists as to MrBlachford’s guilt, he must be acquitted. [9] In R v Lifchus, (SCC), [1997] 3 SCR 320 at paras 30 – 31, and reaffirmed in R v Starr, 2000 SCC 40 atpara 92 – 93, the Supreme Court of Canada explained that a reasonable doubt is a doubt that is based on reason and common sense that islogically connected to the evidence or absence of evidence. It is not a doubt that is based on sympathy or prejudice toward or againstanyone. Proof beyond a reasonable doubt necessarily requires a higher level of proof than probable guilt, but it does not require proof toan absolute certainty.

It does not require proof beyond any doubt, but rather proof beyond a doubt that is not imaginary or frivolous. III.

Background Facts [10] In October 2019, Ms Donovan was a 37-year-old woman who resided with her mother and fiancé, Ben Easman at the Nova Terrace apartment complex (the Nova) that is located at 77th Avenue west of 98th Street in Peace River. [11] Ms Donovan’s former common law spouse, Kevin Mercredi and their adult son, Dakota Donovan, lived very nearby in a second-floor apartment at the Norglen one apartment complex (the Norglen) that is located on the north side of 77th Avenue immediatelyacross from the Nova. [12] Ms Donovan had been involved in the drug trade in Peace River for several years.

She sold and used cocaine andmethamphetamine. [13] Because Ms Donovan did not have a valid driver’s licence, her general practice was to meet her drug customers on foot on thestreets surrounding her home to complete the drug sales. In early October 2019, Ms Donovan’s drug sales generated revenue of between$500 and $1,000 per day. It was Ms Donvovan’s practice to carry large amounts of cash on her person rather than depositing the drugsale proceeds with a bank or keeping them in her home.

She had no safe location within her home to keep cash. [14] Mr Blachford had known Ms Donovan off and on for years because he and been a friend of Mr Mercredi. Mr Blachford alsofrequently purchased cocaine from Ms Donovan. These transactions occurred on more that 100 occasions and continued during themonths of September and October 2019. When conducting these drug transactions, Mr Blachford and Ms Donovan would generally meetin or around his vehicle where they would converse before completing the exchange. [15] On October 7, 2019, the day before her death, Ms Donovan spent most of the day with her son, Dakota.

At approximately10:30 PM, they visited Ms Donovan’s friend Arlene Courtorleille at Ms Courtorleille’s apartment which was approximately one blockfrom the Nova. Dakota stayed at Ms Courtorleille’s apartment for approximately 1 hour. During that time other visitors were present,some of whom Dakota described as “sketchy” street people. Dakota was concerned about these people. He left Ms Courtorleille’sapartment at 11:30 PM to go home. [16] During that visit, Ms Courtorleille purchased meth from Ms Donovan, and she and Ms Donovan consumed both meth andmarijuana.

Ms Donovan left Ms Courtorleille’s apartment between 12:45 and 1:00 AM on October 8, 2019 to go home. Ms Donovan waswearing a dark winter coat with fur trim around the hood and back or blue coveralls. She was carrying a black purse. [17] At approximately 1:10 or 1:12 AM on October 8, 2019, Mr Mercridi contacted Ms Donovan by text asking whether she had

anything he could use as a sleep aid. Ms Donovan was obviously alive at that time because she responded with a text message stating she did not have anything to assist. Mr Mercridi sent a second text message to Ms Donovan at 2:00 AM but he received no response. Mr Mercridi was awake in his apartment at the Norglen until approximately 3:00 AM. [ 18 ] In the early morning hours October 8, 2019, Mr Blachford was driving a grey or silver 4-door Dodge Avenger (the Avenger). The Avenger had black wheels and a spoiler on the trunk.

Mr Blachford drove the Avenger to a Fas Gas station and convenience store in downtown Peace River (Fas Gas). He arrived at 1:03 AM, went into the convenience store and made a purchase, left the store at 1:04 AM, got back in the Avenger, and drove away at 1:05 AM. [ 19 ] Andrew Mildenberger lives in a third-floor apartment of the Norglen. In the early morning hours of October 8, 2019, Mr Mildenberger was sitting on his deck facing south toward the Nova. He was smoking a cigarette and watching YouTube videos and Netflix on his phone.

While on the balcony Mr Mildenberger heard a female voice coming from across 77 th Avenue, which was in the direction of the Nova. The female voice said, “What the hell are you doing?” Mr Mildenberger thought very little of this, assuming that some of his neighbours in the Nova were having another fight. A few minutes later, Mr Mildenberger heard sounds of a “gargled kind of murmur,” which he thought might be the sound of a drowning cat.

Mr Mildenberger became concerned, so he stood up and looked over the balcony railing toward the Nova where he saw a silhouette of a gentleman kicking and stomping at something near a white vehicle in the Nova parking lot. Mr Mildenberger’s view of these actions was not ideal because lighting conditions were poor, and his view was obscured by trees along 77 th Avenue. [ 20 ] Mr Mildenberger watched from his balcony for approximately 30 to 60 seconds and then put on a coat, went down the stairs, and left his apartment building. At approximately 1:45 AM, he walked toward the Nova.

Before he reached 77 th Avenue, Mr Mildenberger saw a motor vehicle leave the Nova parking lot and travel west on 77 th Avenue. Mr Mildenberger described this motor vehicle as being a silver sedan that had a sleek aerodynamic look with a spoiler. Mr Mildenberger could not tell whether the vehicle had two or four doors. [ 21 ] Mr Mildenberger crossed over 77 th Avenue and entered the Nova parking lot where he immediately saw a toque and mittens on the ground near a white vehicle. He then saw a body lying near the white vehicle.

The body was Ms Donovan. [ 22 ] Mr Mildenberger described the white vehicle as a truck that was backed into the parking stall. I conclude that Mr Mildenberger erred in this description. Instead, he saw a white Ford Escape parked at the far north edge of the Nova parking lot immediately to the east of the exit to 77 th Avenue. The body was at the front of the Ford Escape. [ 23 ] Mr Mildenberger called 911 and waited for police. The first police vehicle to respond arrived at approximately 1:58 AM. A second police vehicle arrived at 1:59 AM and an ambulance arrived shortly thereafter.

Medical intervention was attempted but was unsuccessful. Ms Donovan was declared deceased at the scene. [ 24 ] Neither Mr Mildenberger nor Mr Mercredi heard any gunshots in the early morning hours of October 8, 2019, despite both men being awake when Ms Donovan was killed and within close proximity of where Ms Donovan was killed. IV. Evidence

A) Police Investigation [ 25 ] Police located and seized video surveillance footage from Fas Gas. Mr Blachford admits that the still photos taken from the Fas Gas video footage capture his image. [ 26 ] Police located and seized the Avenger and conducted forensic testing. In the interior of the Avenger, no blood was found and none of Ms Donovan’s DNA was detected. [ 27 ] On the exterior of the Avenger, police found two areas of interest, one on the left passenger door and one on the front of the left rear wheel well. Swabs were taken of those areas which were submitted for analysis.

The analysis confirmed Ms Donovan’s DNA in each of the samples. Neither sample was confirmed as being blood. Therefore, Ms Donovan’s DNA could have come from her saliva, skin, or other body cells. [ 28 ] Police obtained a search warrant for Mr Blachford’s home. During the execution of that warrant, police seized a pair of blue jeans from a trash can. On the jeans police located three small stains which were areas of interest: the front right knee, the front right hip seam, and the back side of the jeans below the knee.

The jeans were submitted for analysis, which confirmed the presence of Ms Donovan’s DNA on all three areas of interest. Each sample was also confirmed to contain blood, but the testing could not determine whether the blood was from a human source or from an animal. The same jeans also contained Mr Blachford’s DNA, which was extracted from around the waist band of the jeans. [ 29 ] Police also seized a pair of cowboy boots from Mr Blachford’s home which were also forensically examined. There was no blood or other relevant evidence on the boots.

This evidence is of no significance because I conclude that Mr Blachford was not wearing cowboy boots in the early morning hours of October 8, 2019. The Fas Gas video clips show Mr Blachford wearing sneakers or other flat healed shoes.

I infer that Mr Blachford was wearing those shoes at the time of the attack on Ms Donovan. [ 30 ] Police found blood pools and stains on the pavement near the Ford Escape, and blood spatter on the Ford Escape and on a Nissan Pathfinder that was parked immediately to the east of the Ford Escape. [ 31 ] Police located and seized five .22 shell casings from the area in and around the Ford Escape near where Ms Donovan’s body

was found. These shell casings were submitted for analysis, the results of which confirmed that each had been fired from the samefirearm, likely a .22 Long or Long Rifle calibre firearm. Firearms were found in Mr Blachford’s home. All were all lawfully purchased,owned, and stored, but none were capable of discharging the ammunition that was used to shoot Ms Donovan.

No .22 calibreammunition was found in Mr Blachford’s gun safe, house, or vehicle. [32] Cell phones belonging to Ms Donovan and Mr Blachford were also examined but no relevant evidence was found. [33] Three weeks after Ms Donovan’s death, her black purse was located near Glenmary School in Peace River. No forensictesting of the purse or its contents was conducted. [34] Three months after Ms Donovan’s death, her identity documents and health card were found in a stolen vehicle in thepossession of Eugene L’Hirondelle and Samantha Camber.

The stolen vehicle was found by members of the McLennan, Alberta RCMPdetachment. Police took no steps to investigate the possible involvement of these individuals in Ms Donovan’s death.

B) Mr Blachford’s Statement to Police [35] Mr Blachford did not testify, and no inferences can be drawn from this election. Mr Blachford does not have an onus to proveanything, nor is he required to testify or to tender any evidence in his defence. [36] As part of its case, the Crown tendered a lengthy chartered and cautioned statement given by Mr Blachford to police shortlyfollowing his arrest.

In that statement, Mr Blachford denied responsibility for Ms Donovan’s death. [37] Where the Crown tenders an accused’s statement into evidence, the whole of the statement, including exculpatory statementscan be considered for the purpose of determining whether there is a reasonable doubt as to an accused’s guilt.

An assessment of MrBlachford’s statement must therefore be undertaken in accordance with the direction in R v W(D), (SCC), [1991] 1 SCR742 [W(D)], as explained in R v Ryon, 2019 ABCA 36 at para 51 and R v Achuil, 2019 ABCA 299 at para 18. [38] Assessing the credibility of Mr Blachford’s out-of-court statement poses some challenges. The statement was not made underoath and was not subject to cross-examination, which can affect the weight that can attach to his exculpatory statements.

Despite theseimpediments, when assessing the truthfulness of Mr Blachford’s statement, it must be remembered that he is presumed to be innocent.As a result, there can be no presumption that his exculpatory statement is less likely to be true than any potentially inculpatory statementsthat he may have made: R v Laboucan, 2010 SCC 12 at para 12. [39] Mr Blachford’s exculpatory statement cannot be assessed in isolation.

Instead, his statement must be assessed in the context ofthe evidence as a whole: R v JWA, 2010 ABCA 406 at para 22, leave to appeal to SCC ref’d [2011] SCCA No 153; R v Threefingers,2016 ABCA 225 at para 67. For this reason, I will begin by considering the context of the evidence as a whole, which largely arisesfrom the video surveillance and forensic evidence.

C) Video Surveillance Evidence [40] As part of its case, the Crown tendered a compilation of 18 video clips from surveillance cameras located around Peace River.These included surveillance from businesses and homes around the Nova where Ms Donovan was killed. The shortest of the videos isjust a few seconds and the longest is more than one hour. [41] Video evidence can be powerful evidence that can provide objective details of what took place at or around the time of anoffence.

In R v Nikolovski, (SCC), [1996] 3 SCR 1197 [Nikolovski] the Court stated that the content of a video canstand as a “silent witness” that does not suffer from the frailties of human observation, recollection, and communication. Justice Coryexplained at para 21: The video camera is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all thatcomes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed. The trier offact may review the evidence of this silent witness as often as desired.

The tape may be stopped and studied at a critical juncture. [42] In Nikolovski, video evidence was tendered to prove the identity of the person charged. At para 22, Justice Cory explained therationale for allowing video evidence to be used in this way: So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of theidentity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue ofidentity. Indeed, it may be the only evidence available.

For example, in the course of a robbery, every witness may be killed yet thevideo camera will steadfastly continue to impassively record the robbery and the robbers. [43] While it may be open to triers of fact to make an identification based solely on videotape evidence, caution must be exercisedin doing so. The video must be of sufficient clarity and quality and show the accused for a sufficient time to enable a proper identificationbeyond a reasonable doubt: Nikolovski at para 30 – 32.

The trier of fact must assess the video evidence, taking into consideration itsinherent values, deficiencies, or shortcomings: R v Osman, 2021 ABCA 114, at para 24, leave to appeal to SCC ref’d [2021] SCCA No181; R v Harrison, 2022 ABCA 74 at para 18; R v Ermineskin, 2021, ABCA 225. [44] Caution is particularly critical in the present case because some of the video clips that form part of the compilation presentedby the Crown have inherent deficiencies, as I will later describe. [45] The Crown submits that a careful examination of the video evidence chronicles the events that led to Ms Donovan’s death.However, the Crown does not rely exclusively on the video evidence.

The Crown submits that when the video evidence is assessed in

the context of the other evidence, including the DNA found on Mr Blachford’s jeans, the evidence establishes beyond a reasonable doubt that Mr Blachford is guilty of second-degree murder. [ 46 ] To properly understand the video compilation, it is important to situate the camera locations from which the video footage was obtained.

Apart from the Fas Gas video the most important videos are taken from Matt’s Pizza, the Gymnastics Club, the Reddi Mart and a private residence located at 9713 – 76 th Avenue. [ 47 ] Matt’s Pizza, the Gymnastics Club, and the Reddi Mart are located on the north side of 77 th Avenue just across from the Nova parking lot. Matt’s Pizza is immediately to the west of the Norglen. This camera faces toward the southeast and captures the northeast side of the Nova parking lot. The Gymnastics Club is immediately to the west of Matt’s Pizza.

This camera faces southwest and captures the northwest side of the Nova parking lot. The Reddi Mart is to the west of the Gymnastics Club but the two are separated by an alley. This camera faces east. The camera located at 9713 – 76 th Avenue is west of and across 98 th Avenue from the Reddi Mart. This camera faces east but is a substantial distance from the area in which Ms Donovan’s body was found. However, the white Ford Escape is visible at the top of the camera view. [ 48 ] Except for the camera at Matt’s Pizza, all the videos contain time clocks which are generally accurate.

The parties agree that the Gymnastics Club video is accurate to within 2 minutes and the Reddi Mart video is accurate to within 1 minute. The Matt’s Pizza video has a time counter rather than a time clock. It is admitted that the video from Matt’s Pizza starts at 1:37 AM. In these reasons when I refer to a time from the Matt’s Pizza video, I have estimated the time based on the time counter and an extrapolation from the start time. [ 49 ] The significant features of the surveillance videos can be summarized as follows:

a) The video from Fas Gas is of very high quality and proves that Mr Blachford was driving the Avenger that left Fas Gas at 1:05 AM on October 8, 2019. Mr Blachford admits that he is the person depicted in the still photographs taken from the Fas Gas video.

b) At 1:11 AM, approximately 6 minutes after Mr Blachford drove away from Fas Gas, a video clip from the Gymnastics Club captures what the Crown submits is the Avenger driving through the north entrance of the Nova parking lot and parking on the north side of the lot, four stalls east of the white Ford Escape. This video clip does not show the driver of the motor vehicle. Nevertheless, the Crown submits that Mr Blachford was the driver of the Avenger at that time.

c) Approximately 30 minutes later at roughly 1:37 AM, a video clip from Matt’s Pizza captures a person wearing a dark winter coat and a white toque leaving the north end of the Nova parking lot and crossing 77 th Avenue walking toward the Norglen. The person’s face cannot be seen on the video. The Crown submits that this person was Ms Donovan.

d) Approximately 90 seconds later at roughly 1:39 AM, a video clip from Matt’s Pizza captures the lights from a motor vehicle being turned on. This motor vehicle was parked in the Nova parking lot, several stalls east of the north exit to the lot. The motor vehicle then left the parking stall. The Crown submits that this is the Avenger being driven by Mr Blachford.

e) At 1:40 AM, a video clip from the Gymnastics Club captures a motor vehicle leaving the Nova parking lot through the north entrance, turning left to travel west on 77 th Avenue, turning right into another parking area, and travelling north between the Gymnastics club and the Reddi Mart. The Crown submits that this vehicle is the Avenger being driven by Mr Blachford.

f) At or about the same time, a video clip from Matt’s Pizza captures the person with the dark winter coat and white toque running from the Norglen towards the north entrance of the Nova parking lot. This person leaves the view of the Matt’s Pizza camera but is almost immediately captured by the Gymnastics Club camera at 1:41 AM walking west in front of the Gymnastics Club. From this angle, this video clip shows that the person’s winter jacket has a fur collar. The Crown submits that this person is Ms Donovan.

g) Approximately 10 seconds after entering the Gymnastics Club camera view, the same person can be seen crossing 77 th Avenue diagonally in a southwest direction and waving at a motor vehicle slowly travelling south on 98 th Street. The lights of the motor vehicle can be seen as it continues south for a very short distance and then turns left into the west entrance of the Nova parking lot at 1:41 AM. As this is happening, the person in the dark winter coat and white toque turns around and begins to walk east on the south side of 77 th Avenue in the direction of the north entrance to the Nova parking lot.

This person enters the Nova parking lot at 1:42 AM. The Crown submits that the vehicle traveling south on 98 th Street was the Avenger being driven by Mr Blachford. The Crown submits that the Avenger had travelled north in an alley between the Gymnastics Club and the Reddi Mart for some unknown reason and then ultimately turned left onto 98 th Street to travel south. The Crown submits that as the Avenger was driving south on 98 th Street, Ms Donovan was waiving her arm and hand at the Avenger.

h) After the motor vehicle entered the Nova parking lot from the west entrance, a clip from Matt’s Pizza captures the lights from a motor vehicle some distance behind the white Ford Escape. The Crown submits that this was the Avenger being driven by Mr Blachford. The Crown also submits that this video clip shows that the Avenger being parked in a row of stalls near the north entrance to the Nova, some distance behind the Ford Escape. If the Crown is correct in this submission, I conclude that the Avenger would be approximately 60 to 80 feet behind the Ford Escape.

i) The Crown submits that very shortly after the motor vehicle parked and after the person with the dark winter coat and white toque returned to the Nova parking lot, an altercation occurred. A video clip from Matt’s Pizza at time marker 4:45 (approximately 1:42 AM) captures what the Crown submits is a person dropping to the ground. The Crown submits that this person was Ms Donovan after she had been shot by Mr Blachford.

j) A video clip from Matt’s Pizza at time marker 5:19 (approximately 1:43 AM) captures what the Crown submits is the person who had fallen to the ground being dragged from the left side of the Ford Escape to the front of the Ford Escape. The Crown submits that the

person being dragged was Ms Donovan and that Mr Blachford was dragging her. The video clip from the residence at 9713 – 76 th Avenue at time marker 1:46 AM also shows this movement.

k) A video clip from Matt’s Pizza at time marker 6:01 (approximately 1:44 AM) captures what the Crown submits are movements near the Ford Escape that are consistent with one person stomping another person, as described by Mr Mildenberger. The Crown submits that this was Mr Blachford stomping Ms Donovan.

l) At 1:45 AM, a video clip from the Gymnastic Club captures a motor vehicle leaving the Nova parking lot via the north exit, turning left, and travelling west on 77 th Avenue. The Crown submits that this motor vehicle was the Avenger being driven by Mr Blachford after he killed Ms Donovan. [ 50 ] Apart from the Fas Gas video clips, none of the video clips have sufficient clarity to identify Mr Blachford. Some of the video clips capture images from a considerable distance.

At times it is extremely difficult to determine what is taking place in the videos. [ 51 ] The Crown does not argue that the video clips identify the assailant, as in Nikolovski . Rather, the video clips are circumstantial evidence that the Crown argues provide a basis upon which reasonable inferences can be drawn to identify Mr Blachford as the assailant. V. Circumstantial Evidence [ 52 ] In R v Villaroman , 2016 SCC 33 [ Villaroman ], the Court explained the relationship between proof by circumstantial evidence and the requirement of proof beyond reasonable doubt.

A Court must consider whether an inference of guilt urged by the Crown is the only reasonable inference that may be drawn from the circumstantial evidence. The Crown must negative other “reasonable possibilities,” but does not need to negative “every possible conjecture ... which might be consistent with the innocence of the accused”: Villaroman at para 37 . Inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense: Villaroman at para 36 .

Alternative inferences must be reasonable and rational, not just possible: R v Lazzaro , 2016 ABCA 353 at para 8 , citing R v Dipnarine , 2014 ABCA 328 . [ 53 ] When assessing circumstantial evidence, it is important to consider the totality of the objective facts proven by the evidence as well as the absence of evidence. A gap in the evidence, or an absence of evidence may support a reasonable inference other than guilt: R v Bjornson , 2018 ABCA 282 at para 22 [ Bjornson ].

An accused is not required to provide explanations other than guilt, as this wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all the evidence: Bjornson at paras 22 – 23 ; R v King 2020 ABCA 425 at para 30 . [ 54 ] In R v Lehner , 2020 ABCA 248 at paras 28 – 29 , the Court provided a useful

summary of these principles: … The trier of fact is mandated to consider other plausible theories and other reasonable possibilities that are inconsistent with guilt. The Crown may need to negative those reasonable possibilities, but certainly does not need to negative every possible conjecture which might be consistent with the innocence of the accused.

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

interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible”: at para 42, citing R v Dipnarine at paras 22 and 24 – 25 . [ 55 ] Where the criteria in Villaroman are properly applied, circumstantial evidence can be used to prove one or more of the elements of an offence, including that the accused person before the court is the person who committed the offence: R v Hassan Ali , 2021 ABCA 21 ; R v Eide, 2021 ABCA 70 ; R v Habte , 2020 ABCA 476 ; R v Matchee 2019 ABCA 5 ; R v Brazeau , 2018 ABCA 170 .

However, before permitting circumstantial evidence to be used to prove identity, it is necessary to consider the totality of the evidence, including any frailties in relation to that evidence: R v Metzger , 2023 SCC 5 at para 6 [ 56 ] In this case, I must consider what inferences may properly be drawn from the totality of the evidence and whether those inferences, when properly assessed in accordance with the principles described in Villaroman , can prove beyond a reasonable doubt that Mr Blachford assaulted and shot Ms Donovan.

A) The Avenger was in the Nova parking lot [ 57 ] I conclude that the Avenger that Mr Blachford was driving when he left Fas Gas at 1:05 AM on October 8, 2019 was the same vehicle that was seen at the Nova parking lot between 1:11 AM and 1:45 AM. I come to this conclusion for the following reasons: • I have carefully examined the video clips including, in particular, those from the Gymnastics Club and Matt’s Pizza. I have stopped the videos at critical times to obtain a better view of the motor vehicle.

I conclude that the videos from the Gymnastics Club and Matt’s Pizza capture a vehicle with the same features as the Avenger captured in the Fas Gas video clips. The video clips from the Gymnastics Club and Matt’s Pizza are black and white, which means it is not possible to determine the precise color of the vehicle. However, the vehicle has a light colouring, which is consistent with the Avenger.

Additionally, the vehicle captured in the video clips from the Gymnastics Club and Matt’s Pizza has the same distinctive characteristics as the Avenger captured in the Fas Gas video clips: a sedan of the same style with the same black wheels and a distinctive flair over the rear wheel well. While not easily seen in the video clips, Mr Mildenberger described the vehicle he saw leave the Nova parking lot as having a rear spoiler. A spoiler is seen on the Avenger in the Fas Gas video clips.

• The map tendered in evidence as part of the video compilation has a scale. Using that scale, I conclude that it is approximately 3 km from Fas Gas to the Nova. At normal driving speeds I conclude that it would take approximately five to six minutes to drive this distance. This fits almost precisely with the time between when the Avenger left Fas Gas and the time that the vehicle in question arrived at the Nova. • The Avenger was one of only a very few vehicles driving in Peace River during the hours in question.

The video clips from Fas Gas and from the locations near the Nova demonstrate that there was virtually no traffic in either area during the relevant time. • When the Avenger left Fas Gas, it travelled north on 100 th Street in the direction of the area in which the Nova is located. [ 58 ] When I consider all of these factors, I conclude that the Avenger left Fas Gas at 1:05 AM and arrived at the Nova at 1:11 AM. I also conclude that the Avenger was at or near the Nova until it finally departed at 1:45 AM. There are no other reasonable possibilities arising from these facts.

B) Mr Blachford was the driver of the Avenger at the Nova [ 59 ] I infer that Mr Blachford was the driver of the Avenger while it was at Nova. [ 60 ] The video clips from the cameras near the Nova are not sufficiently clear to permit identification of the driver of the Avenger while it was at the Nova. Nevertheless, I infer that Mr Blachford was the driver of the Avenger at all relevant times. Mr Blachford admits that he was the person getting into the Avenger as captured in the Fas Gas video clips.

It is clear from those video clips that he was the driver of the Avenger as it left Fas Gas. [ 61 ] The Fas Gas video clips also shows that Mr Blachford was alone at the relevant time. As I earlier explained, the travel time from Fas Gas to the Nova is almost precisely what would have been expected for an arrival at 1:11 AM. It would be pure speculation to assume that the Avenger stopped to change drivers or to pick up other persons.

C) Ms Donovan was the person captured walking on 77 th Avenue [ 62 ] Between 1:37 AM and 1:42 AM, video clips from Matt’s Pizza and the Gymnastics Club capture a person wearing a dark winter coat with fur trim around the hood, dark bulky pants, and a white toque. The person’s face is not captured on the videos and therefore it is not possible to identify the person from the video clips alone. [ 63 ] I infer that the person captured in the video clips walking on 77 th Avenue was Ms Donovan for the following reasons.

Dakota testified that when he and Ms Donovan went to Ms Courtorleille’s apartment, Ms Donovan was wearing a dark winter coat with fur trim around the hood and black or blue coveralls. Police photographs show the coat that Ms Donovan was wearing at the time of her death. It was a black winter coat with fur trim around the hood (Ex 2, photos 15 and 83), which is consistent with the coat worn by the person captured in the video clips. Police photographs also show the pants that Ms Donavan was wearing at the time of her death.

They were blue in colour and bulky (Ex 2, photos 22 and 23), which is consistent with the pants worn by the person captured in the video clips. Police photographs also show a toque that was found beside the Ford Escape (Ex 2, photos 12, 33 and 34), which is consistent with the toque worn by the person captured in the video clips. [ 64 ] I infer that the person captured in the video clips walking on 77 th Avenue was Ms Donovan. There is no other reasonable inference available on the facts.

I infer that after initially leaving the Nova parking lot at 1:37 am, Ms Donovan walked west down 77 th avenue, waived at the Avenger before she returned and entered the Nova parking lot at 1:42 am. This was approximately 2 minutes before she was assaulted and shot.

D) Was Mr Blachford the assailant? [ 65 ] The Crown submits that the circumstantial evidence permits an inference that Mr Blachford was the assailant and that he is therefore responsible for Ms Donovan’s death. Important pieces of evidence tend to support the Crown’s submissions, including the following: • I have inferred that at 1:11 AM, Mr Blachford arrived at the Nova in the Avenger and departed at 1:45 AM. • I have inferred that Ms Donovan walked into the Nova parking lot at 1:42 AM.

Based on what is captured in the relevant video clips, there is no indication that Ms Donovan was suffering from any injuries at that time, certainly not the types of injuries that caused her death. • The only logical conclusion from the evidence is that Ms Donovan was assaulted and shot sometime between 1:42 AM when she entered the Nova parking lot and 1:45 AM when Mr Blachford drove out of the Nova parking lot.

Ms Donovan’s body was discovered by Mr Mildenberger immediately thereafter. • I infer that the jeans Mr Blachford was wearing at the time he was at the Nova were the same jeans found in the trash can in Mr Blachford’s residence. The jeans Mr Blachford was wearing when he was captured on the Fas Gas video contain virtually the identical holes in the knees as do the jeans found in Mr Blachford’s trash can. A second pair of jeans seized by police, while similar, have holes in the knees that are not of the same size or shape.

The jeans found in Mr Blachford’s trash can were the same jeans that were forensically analyzed and found to be stained with blood in three separate areas, all of which contained Ms Donovan’s DNA. • Ms Donovan’s DNA was also found on the front portion of the left rear wheel of the Avenger as well and on the left passenger

door. • The video clips show no other cars entering or exiting the Nova parking lot during the relevant time. The video clips show no other vehicle or pedestrian traffic on 77 th Avenue during the relevant times. [ 66 ] The Crown submits that on the totality of this evidence Mr Blachford was Ms Donovan’s assailant and that there are no other reasonable inferences available that do not involve speculation. [ 67 ] Despite the compelling nature of the Crown’s argument, I am not able to accede to the Crown’s position.

The Crown’s submissions fail to consider the frailties in the evidence and the absence of evidence on the record before me. When I consider the totality of the evidence, I conclude that it is not possible to draw the inference that Mr Blachford was Ms Donovan’s assailant. [ 68 ] Some of the evidence that prevents a proper inference on identity are as follows:

i) Lack of clarity in critical portions of video evidence [ 69 ] The video clips are subject to many frailties. On their own, the video clips are not sufficiently clear to permit any conclusion regarding who killed Ms Donovan. [ 70 ] Some of the videos are very clear. The Fas Gas video is one example. However, the video clips that capture the area around the Ford Escape during the time that Ms Donovan was attacked are of extremely poor quality.

The video clips show some movement around the vehicle, but it is not possible to identify any of the individuals, the number of people in the area, the gender of the individuals, the size of the individuals, or the clothing that they wore. These video clips have extremely limited probative value and do not assist in permitting any inferences in relation identity. [ 71 ] The primary value of the video clips is that they depict the Avenger in the Nova parking during the material times and demonstrate that no other vehicles drove into the Nova parking lot at any material time prior to the attack.

However, in other respects, the value of these video clips is very limited. While I am able to infer that Mr Blachford was driving the Avenger, none of the video clips show Mr Blachford getting out of the Avenger at any time. [ 72 ] Further, this is not a case of exclusive opportunity which, if established can provide strong evidence of identity: R v Sandoval-Barillas , 2017 ABCA 154 at para 41 – 45 . In this regard, the video clips do not capture activities in other areas of the Nova parking lot.

The uncontested evidence is that the Nova was located in a high-density residential area with 13 apartment complexes in the immediate area that were easily within walking distance of the Nova parking lot. The relevant video cameras do not provide coverage for all points of access into the Nova parking lot. Furthermore, while the video clips from Matt’s Pizza and from 9713 – 76 th Avenue show what appears to be the movement of a person or persons near the Ford Escape at or very near the time that Ms Donovan was attacked, those portions of the videos are of very poor quality.

It is not possible to determine the number of persons present, the gender of the persons, the size of the persons, or what that person or persons are doing. These videos are of little probative value in attempting to identify the assailant. [ 73 ] I conclude that Mr Blachford was in the Nova parking lot at the time of the attack on Ms Donovan. This gives rise to a very high level of suspicion. However, mere presence in the same parking lot at the time when the offence occurred does not, alone, permit an inference that Mr Blachford was Ms Donovan’s assailant.

Much more than that is required. ii) DNA on Mr Blachford’s jeans [ 74 ] The presence of Ms Donovan’s DNA on Mr Blachford’s jeans is relevant evidence, particularly when assessed in conjunction with the video evidence and Mr Blachford’s presence in the Nova parking lot. If the DNA evidence had been strong, it may have supported an inference as to identity. However, I conclude that the DNA evidence has frailties that impede a proper inference regarding identity. [ 75 ] Trevor Price, a civilian employee of the RCMP working in the Biological Services area, was qualified as an expert in forensic DNA analysis.

Mr Price opined that Ms Donovan’s DNA was found on three small samples cut from the jeans found in Mr Blachford’s trash can. He also opined that blood was found in each of the three samples tested.

However: o Mr Price could not determine when the DNA was deposited on the jeans. o Mr Price could not determine whether the DNA was from the blood or from some other substance such as saliva, phlegm, skin, hair, or other bodily substance. o Mr Price could not determine whether the DNA was from direct, secondary, or tertiary transfer. o Mr Price could not determine whether the blood detected was from a human or animal. [ 76 ] Based on Mr Price’s expert evidence, I can safely conclude that Ms Donovan’s DNA was on the jeans that Mr Blachford was wearing in the early morning hours of October 8, 2019. [ 77 ] However, Mr Price also confirmed that DNA transfer could occur through direct transfer such as sneezing or through indirect transfer such as touching an object on which the DNA was deposited and then touching some other object or person.

Mr Blachford and Ms Donovan were not strangers and they met regularly to conduct drug transactions. While they were doing so, they would generally meet in or around his vehicle and converse before completing the exchange. During those transactions there were transfers of drugs for cash. Each of these meetings presented the opportunity for the transfer of DNA from Ms Donovan to Mr Blachford because they were

standing near to one another conversing and passing drugs from Ms Donovan to Mr Blachford. [ 78 ] The unchallenged expert evidence of Dr Lorne Tyrrell was that that there is a significantly increased chance of nose bleeding in patients using crystal meth or cocaine compared to the non-drug using population. It is admitted that Ms Donovan was a regular user of both methamphetamine and cocaine. Mr Price agreed in cross-examination that, given Dr.

Tyrrell’s opinion, and based on Ms Donovan’s history of the use of methamphetamines and cocaine, it was a reasonable possibility that the small deposits of blood on the jeans could have occurred through the expulsion of blood with the phlegm or saliva in the direction of the person wearing the jeans and then through indirect transfer to the jeans. [ 79 ] However, Mr Price’s opinion in this regard presupposes that Ms Donovan’s blood was contained within the samples from the jeans that were tested. On the evidence before me, I am unable to conclude that Ms Donovan’s blood was on Mr Blachford’s jeans.

This is because Mr Price was unable to directly associate Ms Donovan’s DNA to the blood on the jeans. He confirmed that the presence of Ms Donovan’s DNA on the jeans could have come from multiple sources, such as blood, saliva, skin cells, or hair. Ms Donovan’s DNA could also have come from mucus or phlegm which, when expelled, would be expected to contain skin cells from the mucus membranes. [ 80 ] Furthermore, Mr Price opined that the source of the blood found on the jeans could either have come from a human or from an animal.

This is significant because Mr Blachford is a hunter and, at the time of these events it was hunting season. Mr Price confirmed that if a sample contains both animal blood and a human bodily substance such as saliva, then the test result would confirm the presence of human DNA which would have been extracted from the saliva. [ 81 ] The presence of Ms Donovan’s DNA on Mr Blachford’s jeans is, at least on the surface, significant. But the significance of this evidence is diminished because the evidence is capable of reasonable explanations other than blood deposited at the time of the attack on Ms Donovan.

This argues against an inference on identity. iii) Ms Donovan’s DNA on the Avenger [ 82 ] The presence of Ms Donovan’s DNA on the exterior of the Avenger has even greater frailties. I conclude that this evidence has little probative value. The likelihood that the bodily substances containing Ms Donovan’s DNA were deposited on the Avenger during the attack is extremely remote. This is because the Avenger was parked at least 60 to 80 feet from the area where Ms Donovan’s body was found and a similar distance from where the Crown alleges the attack took place.

Based on the evidence of the blood spatter expert, that blood spatter can travel at most eight feet. Therefore, it is not possible to reasonably infer that Ms Donovan’s DNA on exterior of the Avenger was deposited during Ms Donovan’s attack. [ 83 ] Furthermore, in relation to these samples, the lab was not able to confirm that blood was present. Thus, it is possible that Ms Donovan’s DNA came from another of Ms Donovan’s bodily substances or from Ms Donovan’s skin.

As was the case with Ms Donovan’s DNA on Mr Blachford’s jeans, Mr Price was not able to determine when the DNA was deposited on the vehicle or whether it was a direct or indirect transfer.

Given that the drug transactions between Ms Donovan and Mr Blachford occurred in or around the Avenger, Ms Donovan could have touched the exterior of the Avenger during any one of those drug transactions prior to the attack. [ 84 ] For these reasons the presence of Ms Donovan’s DNA on the exterior of the Avenger does not assist in making any inferences on identity. iv) Absence of Evidence [ 85 ] In addition to the frailties of the video and DNA evidence, it is necessary that I consider the absence of evidence: • Police found a large blood mark on the hood of the Ford Escape.

The pattern suggested that a hand and thumb had come into contact with the pool of blood and was then transferred to the hood of the Ford Escape. I conclude that these marks were not made by Ms Donovan. Police photos show no blood on Ms Donovan’s hands. It is more likely that the hand marking was made by the assailant. If Mr Blachford was the assailant, then after the attack he must have immediately returned to the Avenger before leaving the parking lot at 1:45 AM. If Mr Blachford had blood on hands, then the blood would very likely have transferred to the Avenger’s door handle, steering wheel, or gearshift.

No blood or DNA was found in these areas. If Mr Blachford was wearing gloves, that may account for the absence of blood in these areas. However, it would be speculative for me to draw that inference. The Fas Gas video clips show Mr Blachford wearing a light fleece jacket without any gloves. No gloves were found at the scene or in Avenger or Mr Blachford’s residence. • The Crown submits that the video clips capture what appears to be the assailant stomping on Ms Donovan in the manner described by Mr Mildenberger.

Police photos show substantial damage to Ms Donovan’s face and a loss of blood in Ms Donovan’s facial area. Police photos of the Ford Escape confirm blood spatter. Given these circumstances, I conclude that the assailant’s shoes would very likely have had Ms Donovan’s blood on them after the assault. If Mr Blachford was the assailant, then that blood would likely have been secondarily transferred to the Avenger’s gas peddle, brake peddle, or floor mat. No blood or DNA evidence was found in these areas.

Moreover, the police confirmed that no attempt had been made to clean this area of the Avenger. • The stomping of Ms Donovan’s face would very likely have caused blood spatter onto the pants of the assailant as was described by the blood spatter expert. While Mr Blachford’s jeans did show a deposit of three small spots of blood, none of the locations where blood was detected were near the hem of the jeans. The jeans did not show the same patten of blood spatter found on the Ford Escape. • Police searched Mr Blachford’s vehicle, home, and gun case.

They found no evidence of the murder weapon, nor did they find any ammunition of the type used in Ms Donovan’s shooting. While firearms were found in Mr Blachford’s home, none were capable of firing the type of .22 ammunition that had been used in Ms Donovan’s shooting. • There was no evidence of animosity between Ms Donovan and Mr Blachford. Police conducted searches of the phones of Mr Blachford and Ms Donovan and no evidence was found to suggest any animosity between them. In his statement to police Mr Blachford confirmed that there was no animosity between them.

Further, there is video evidence of Ms Donovan waving to Mr Blachford shortly

before the attack, which is inconsistent with animosity between them. [ 86 ] When I consider the totality of the evidence, I conclude that it is simply not possible to safely draw an inference that Mr Blachford was the assailant. The presence of Mr Blachford in the Nova parking lot is not sufficient on its own to permit this inference. The video evidence is of poor quality at the critical times and is not sufficient to permit this inference. The DNA evidence has frailties that prevent this inference because of other reasonable explanations. Furthermore, the absence of evidence gives rise to reasonable doubt.

The combination of these factors would make it very dangerous to find that identification has been proven beyond a reasonable doubt. VI. Conclusion [ 87 ] The Crown argues that Mr Blachford is criminally responsible for Ms Donovan’s death. There is no direct evidence that Mr Blachford was Ms Donovan’s assailant. For the reasons I have described, it is not possible to draw such an inference on the totality of the evidence before the Court. [ 88 ] Mr Blachford gave a statement to police which was tendered as part of the Crown’s case.

When I consider that statement in the context of the Crown evidence, I conclude that I have a reasonable doubt as to Mr Blachford’s guilt. For this reason, I find him not guilty of second-degree murder, the sole count on the indictment. [ 89 ] Since my reasonable doubt rests on the identity of the person who committed the offence, there is no need to consider Mr Blachford’s liability for any included offences. Heard between the 13 th day of March, 2023 and the 22 nd day of March 2023. Dated at the Town of Peace River, Alberta this 04 th day of April, 2023. John T. Henderson J.C.K.B.A.

Appearances: Jeff Rudiak KC for the Crown Brian Beresh KC Graham Rapson for the Accused