R v Underwood, 2022 ABKB 709

Court of King’s Bench of Alberta Citation: R v Underwood, 2022 ABKB 709 Date: 20221024 Docket: 200629988Q3 Registry: Edmonton Between: His Majesty the King Crown - and - Buddy Ray Underwood and Tyra Muskego Defendants _______________________________________________________ Decision of the Honourable Justice Robert A. Graesser _______________________________________________________ NOTE : The results of this decision were announced in open court on October 21, 2022. Counsel and the Defendants were given draft copies of this decision, and it was briefly summarized.

I advised that I was reserving the right to make minor edits and formatting changes before publication, but nothing of substance would be changed. I have done so, and confirm that nothing of substance has been changed from what was provided on October 21, 2022. Introduction

[ 1 ] Buddy Ray Underwood and Tyra Muskego are jointly charged that they, on or about the 7 th day of April 2019, at or near Hinton, Alberta: 1. Did unlawfully cause the death of Nature Duperron, thereby committing first-degree murder, contrary to section 235(1) of the Criminal Code of Canada ; 2. Did unlawfully kidnap Nature Duperron with intent to cause him to be confined or imprisoned against his will, contrary to section 279(1.1) (

B) of the Criminal Code of Canada ; and 3. Did steal property from Nature Duperron and at the time thereof did use violence (or threats of violence) to Nature Duperron, contrary to section 344(1)(

B) of the Criminal Code of Canada . [ 2 ] This decision follows a roughly three-week trial. The Crown alleges that the murder was first degree murder, either because Mr. Underwood and Ms. Muskego were parties to the planned and deliberate killing of Ms. Duperron under section 231(2) of the Criminal Code or because they are guilty of constructive murder under section 231(5) of the Criminal Code . [ 3 ] The Defendants were charged jointly with Grayson Eashappie and Kala Bajusz. Mr. Eashappie and Ms. Bajusz resolved their charges on the first day of the trial. Those proceedings have been dealt with by Mr.

Justice Little. During this trial, Mr. Eashappie is referred to by witnesses as “Grayson” or by “Rex”. He apparently used both names. [ 4 ] The key witness against the Defendants was Bret Desjarlais. Mr. Desjarlais is Mr. Underwood’s cousin and was involved as the driver of the white truck used in connection with the robbery, kidnapping, forcible confinement, and transporting the group to and from the spot where Ms. Duperron was left to die. [ 5 ] The Crown alleges that Ms. Duperron was robbed by Ms. Muskego and Ms. Bajusz after being driven around Central Edmonton in Bret Desjarlais’ truck, accompanied by Mr.

Underwood and Mr. Eashappie. Ms. Duperron was beaten up and her purse was stolen. Initially, she was let go. When Ms. Muskego and Ms. Bajusz found that there was not much in the purse, they instructed Mr. Desjarlais to drive around so they could find Ms. Duperron again. [ 6 ] Ms. Duperron was spotted, and Ms. Muskego and Ms. Bajusz ran after her, eventually finding her in the cash machine kiosk of the Servus Credit Union at 11311 Kingsway Avenue in Edmonton. They dragged Ms. Duperron back to Mr. Desjarlais’ truck, where Ms. Duperron was shoved onto the floor of the truck with Ms. Muskego, Ms. Bajusz and Mr.

Eashappie sitting on the bench seat above her with their feet resting on her. Ms. Duperron was hit and kicked, and Ms. Bajusz searched her while Ms. Muskego held her down. Nothing of value was found. [ 7 ] The group began driving around Edmonton until Mr. Underwood made a “call” that Ms. Bajusz knew too much, and they had to get rid of her. Mr. Desjarlais was directed to head west out of Edmonton. They stopped at Kim’s No 1 Convenience Store near Beach Corner for gas. As they drove by Alberta Beach, Ms. Bajusz suggested that they dump Ms. Duperron in the lake.

That was ruled out as not being practical. [ 8 ] The group continued west on Highway 16. They stopped at Darwell where Mr. Desjarlais bought some alcohol for them to consume. Sometime between Darwell and Edson Mr. Eashappie injected Ms. Duperron with fentanyl. There were at least two more injections of fentanyl before the group reached Hinton. [ 9 ] It is alleged by the Crown that Ms. Duperron was killed by overdoses of fentanyl administered to her by Mr. Eashappie and Mr.

Underwood and that she died sometime after being handcuffed, knocked to the ground, and left to die in the bush just off Highway 40 near Hinton. [ 10 ] Both Defendants pled not guilty and argue that the Crown has not proven their guilty beyond a reasonable doubt on any of the charges or included charges they face. [ 11 ] Following the completion of the Crown’s case, Mr. Underwood moved for a directed verdict of not guilty on all charges and included charges. Ms. Muskego moved for a directed verdict of not guilty on first degree murder.

In an oral decision given on October 1, 2022, I dismissed those applications. [ 12 ] Neither Defendant elected to call any evidence. Argument was given on October 6 and 7, and I reserved my decision to October 21. Evidence [ 13 ] Some of the evidence is not contested.

There is video surveillance footage from the McDonalds Restaurant at 8132 112 Avenue, Edmonton, the Servus Credit Union on Kingsway Avenue in Edmonton, Kim’s No 1 Convenience Store near Beach Corner heading westbound on Highway 16, a liquor store in Darwell, Fas Gas in Edson, the McDonalds Restaurant on Carmichael Lane in Hinton, and Tim Hortons in Edson. Times are not in dispute. There are cell phone records from Mr. Underwood’s cell phone and from Mr.

Desjarlais’ cell phone, as well as pings from both cell phones off cell towers in various locations confirming that the cell phones were near those towers at various times on April 7, 2019. Those times and locations accord with Mr. Desjarlais’ account of what occurred that day in relation to Ms. Duperron. [ 14 ] During the RCMP investigation, Mr. Desjarlais acted as an RCMP agent and participated in recorded conversations with Ms. Muskego, Mr. Underwood, and Mr. Underwood’s girlfriend Cassandra Cann. Conversations between Mr. Underwood and Ms. Cann were also recorded. [ 15 ] Mr.

Desjarlais’ bank records are in evidence, and there have been various agreements on other relevant facts.

[ 16 ] There was no issue over the cause of Ms. Duperron’s death and the evidence of the medical examiner and chief toxicologist were essentially accepted without any controversy. [ 17 ] The controversial evidence is mainly that of Mr. Desjarlais. His credibility and reliability are very much in issue. Additionally, Jessica Desjarlais, another Crown witness, gave evidence that contradicted or at least was inconsistent with Mr. Desjarlais testimony. [ 18 ] I will only deal with the evidence in any detail where it is contested.

Narrative – Bret Desjarlais [ 19 ] Since the key witness was Bret Desjarlais, I will begin with his narrative. Mr. Desjarlais was raised in Evansburg. He completed school and became a welder. At the time in question, he was 25 years old. He was working in Edmonton but still living in Evansburg and commuting back and forth. Mr. Desjarlais had long-standing drug issues and described himself as a user of meth amphetamine, cocaine, and heroin. He supplemented his income by selling drugs. No criminal record was put in evidence. [ 20 ] On April 6, 2019, he was working in Edmonton.

He had an eighth of an ounce of heroin that he wanted to sell. He thought his cousin Buddy Underwood might be able to help him. Mr. Desjarlais and Mr. Underwood had grown up together and went to school together as children. They had drifted apart but had reconnected earlier in 2019. They were friendly but not particularly close. There was no history of any antagonism between them. [ 21 ] Mr. Desjarlais arranged to meet Mr. Underwood at an address in central Edmonton Mr. Underwood had given him. Mr. Underwood told him he couldn’t help with the heroin sale but invited him into the residence to party.

There were several other people in the residence. Mr. Desjarlais recalls smoking some meth. He was introduced to some of the people there, including Grayson Eashappie, Kala Bajusz, and Tyra Muskego. He had not met these people before. [ 22 ] According to Mr. Desjarlais, they partied all night. Between 6 or 7 am on April 7, the partiers were hungry and placed their food orders with Mr. Desjarlais. [ 23 ] At some stage, Mr. Eashappie got a telephone call from Ms. Duperron. According to Mr. Eashappie, she needed someone to drive her around as she did some drug deals. She was prepared to pay for this. Mr.

Desjarlais needed money, and he agreed to do this. He had not met Ms. Duperron before. Mr. Desjarlais left to get some food, picking up Ms. Duperron on the way. Mr. Desjarlais testified that she seemed sober. They then drove to McDonalds on 112 Avenue and got some food. The stop at McDonalds is confirmed by video footage from the restaurant at 6:51 am. It shows a white truck in the drive through. Mr. Desjarlais confirmed that he was the driver (recognizable by a tattoo on his arm). Mr. Desjarlais’ bank records show a purchase of $50.42 from McDonalds at 6:50 am on April 7. [ 24 ] The three of them, Mr.

Desjarlais, Mr. Eashappie and Ms. Duperron, then drove back to the house and distributed the food to the group there. [ 25 ] Ms. Duperron had talked about the deliveries she wanted to make, so after dropping off the food, Mr. Desjarlais drove Ms. Duperron to see a person he believed to be her aunt. The aunt, Margaret Houle, had apparently asked Ms. Duperron to get her some drugs. [ 26 ] At the aunt’s residence, Ms. Duperron gave her the drugs. They had a brief exchange and left to return to the house where the others were. Mr. Desjarlais’ account of these events was confirmed by Ms.

Duperron’s aunt in her testimony. Ms. Houle testified that the exchange with Ms. Duperron was at 8 am on April 7. While Ms. Duperron was talking to her aunt, Mr. Desjarlais had a telephone conversation with Mr. Underwood, who seemed upset that he was with Ms. Duperron. [ 27 ] Ms. Duperron needed to do some more deliveries. They returned to the house. Mr. Underwood, Mr. Eashappie and someone described as “Little Dan” got into the truck and they drove to a drop site for Ms. Duperron. At the site, Ms. Duperron and Mr. Underwood went into the house.

After that visit, the group began to look for the third delivery or drop site. Ms. Duperron was not able to find the site. During the trip, all but Ms. Duperron were smoking meth from a pipe. Eventually, they drove back to the house. [ 28 ] Little Dan and Mr. Eashappie went into the house. Shortly after that, Mr. Eashappie returned to the truck with Ms. Bajusz and Ms. Muskego. Ms. Bajusz and Ms. Muskego told Mr. Desjarlais they needed a ride to a friend’s house. [ 29 ] They drove for a few minutes. Mr. Desjarlais was told to pull into an alley as the friend apparently used the back door of the residence.

At this point, Mr. Desjarlais received a text message from Mr. Underwood. He was surprised to get a message as Mr. Underwood was sitting beside him. The others were in the back seat. The message warned Mr. Desjarlais that Ms. Duperron was going to be robbed. He understood that Ms. Bajusz and Ms. Muskego intended to rob her. [ 30 ] Mr. Desjarlais testified “I was kind of shocked. I wasn’t expecting it.” He did not recall the exact wording of the text message, just “what was all going to happen”. He related that Mr. Underwood said “I’m sorry, cuz, and I love you, cuz”.

The message ended “Sorry, I love you”. [ 31 ] Mr. Eashappie then got out of the truck. Ms. Bajusz and Ms. Muskego dragged Ms. Duperron out of the truck. Mr. Desjarlais said that Ms. Bajusz got out, Mr. Eashappie was standing by the truck, and Ms. Muskego was “kicking at (Ms. Duperron’

s) hands and head to get her out the door”. Mr. Underwood remained in the truck. He then saw Ms. Duperron on the ground, with Ms. Bajusz’s and Ms. Muskego’s elbows and fists going up. After this, Mr. Eashappie, Ms. Bajusz and Ms. Muskego got back in the truck, leaving Ms. Duperron on the ground. They had Ms. Duperron’s purse with them. [ 32 ] Ms. Bajusz and Ms. Muskego searched Ms. Duperron’s purse and were disappointed with the take. Mr. Desjarlais recalls Ms. Muskego telling him to turn around to go back and find Ms. Duperron. He recalls driving around and Ms. Muskego getting excited when

she saw Ms. Duperron. Ms. Muskego jumped out of the truck to chase after Ms. Duperron, even though the truck had not fully stopped. Once the truck stopped, Ms. Bajusz got out and followed Ms. Muskego. Mr. Desjarlais said that he drove around a bank and stopped. Ms. Bajusz then got out of the truck. Ms. Bajusz and Ms. Muskego ran towards the bank where they had spotted Ms. Duperron. He then saw them walking Ms. Duperron back to the truck. [ 33 ] Video surveillance footage from the Servus Credit Union on Kingsway Avenue shows Ms. Duperron entering the bank machine kiosk. Shortly after that, Ms.

Muskego can be seen entering the kiosk followed by Ms. Bajusz. The two women can then be seen escorting Ms. Duperron out of the kiosk. Mr. Desjarlais identified the three women when shown the surveillance video during his testimony. The timing of the video surveillance confirms Mr. Desjarlais’ chronology and narrative. [ 34 ] Mr. Desjarlais testified that Ms. Bajusz and Ms. Muskego “had their arms kind of wrapped around” Ms. Duperron guiding her back to the truck. They got in the truck and Mr. Desjarlais started driving around. According to Mr. Desjarlais, Mr. Eashappie was in the rear passenger seat behind Mr.

Underwood, Ms. Bajusz was in the middle and Ms. Muskego was behind Mr. Desjarlais. Ms. Duperron was sitting between Ms. Muskego and Ms. Bajusz. [ 35 ] Mr. Desjarlais testified that Ms. Bajusz and Ms. Muskego started searching Ms. Duperron for more drugs. He said that Ms. Bajusz was doing the searching while Ms. Muskego held Ms. Duperron’s legs down. Mr. Eashappie searched Ms. Duperron’s purse or another bag, and Mr. Desjarlais said he saw Ms. Bajusz hit Ms. Duperron a few times. [ 36 ] The group drove around for some time and ended up travelling west on Stony Plain Road in Edmonton. They continued westbound.

At this point, Mr. Desjarlais says that Mr. Underwood made a “call”. He said that “she knew too much, and we had to get rid of her”. At the time Mr. Underwood spoke, there was music playing in the truck, but it was turned down. Mr. Desjarlais said that when he heard the words Mr. Underwood spoke, he was “kind of stunned, like, kind of confused, kind of what he meant.” [ 37 ] He said he was then threatened by Mr. Underwood with words like “you’re either with us or you’re not type deal”. [ 38 ] Mr. Desjarlais testified that he couldn’t remember whose idea it was to leave Edmonton, but Mr.

Underwood directed him a little bit. They ended up going west on Stony Plain Road in Edmonton. [ 39 ] Mr. Desjarlais was familiar with the highway heading west. They went through Spruce Grove and then through Stony Plain and he thinks they consumed some more meth along the way. They stopped at Kim’s No 1 convenience story for gas shortly before the Alberta Beach turnoff. Mr. Underwood paid for the gas in the store. Mr. Desjarlais was told not go into the store. [ 40 ] By this time, Ms. Duperron was laying in the back seat on the floor, where she stayed for the entire trip to Hinton that followed.

She had been handcuffed, using handcuffs found in her purse. Mr. Desjarlais was asked where everyone was putting their feet, and he replied, “on top of her”. Mr. Desjarlais said that everyone in the back seat had pushed and shoved Ms. Duperron to the floor. [ 41 ] At some point in the early stage of the drive west, Mr. Eashappie injected Ms. Duperron with what Mr. Desjarlais believed to be fentanyl. The injection was into either her leg or her butt. [ 42 ] Mr. Desjarlais testified that when Mr. Underwood went into the store to pay for the gas at Kim’s No 1, Ms. Duperron was on the floor of the back seat. Ms.

Muskego was behind him, Ms. Bajusz was in the middle and Mr. Eashappie was in the rear seat behind Mr. Underwood had been sitting. All three in the back seat had their feet on Ms. Duperron. [ 43 ] They continued west, and as they got near the Alberta Beach turnoff, Ms. Bajusz suggested that they dump Ms. Duperron in the lake. That was discussed by the group as not being a good idea. [ 44 ] Around this time, Ms. Bajusz handed Mr. Eashappie something Mr. Desjarlais thought (based on his drug experience) was fentanyl. A syringe was loaded, and Mr. Eashappie injected Ms. Duperron with the drug. Ms.

Duperron was injected in similar fashion on at least one other occasion before the group got to Edson. [ 45 ] Mr. Desjarlais was asked about seeing any assaults on Ms. Duperron. He responded that “I witnessed her getting kicked. I witnessed needles getting shove in her. Hit. The hitting was Kala and Tyra. The needles was Grayson.” [ 46 ] After the first injection, Ms. Duperron was in and out of sleep for the rest of the journey. [ 47 ] They continued west, stopping next at Darwell to purchase some liquor. The group provided Mr. Desjarlais with cash so he could make some purchases. Mr.

Desjarlais got out of the truck and went into the store. He thinks he bought vodka and some coolers. Everyone else stayed in the truck. Records from the Darwell liquor store confirm that at 10:47 am on April 7, there was a cash sale of vodka and coolers. [ 48 ] After the Darwell stop, they continued to Edson, where they stopped at the Fas Gas station for gas. Between Darwell and Edson, Mr. Desjarlais believes that Mr. Eashappie injected Ms. Duperron with fentanyl again. Mr. Desjarlais fueled up and paid for the fuel. Mr.

Underwood went into the store to use the bathroom. [ 49 ] Fas Gas records show that a $50 cash purchase for gas was made at 13:05 on April 7. These events are also confirmed by the video surveillance from the Fas Gas station in Edson. That video shows Mr. Desjarlais getting out of the driver’s seat of a white truck. It also shows Mr. Underwood getting out of the truck. Mr. Underwood was identified by Mr. Desjarlais when shown the video during his testimony. [ 50 ] Mr. Desjarlais said that he remained in the driver’s seat with Mr. Underwood in the passenger seat to Edson.

On the trip from Edson to Hinton, he said that “Buddy and I switched drivers’ seats a couple of times”. [ 51 ] After Edson, the group continued west on Highway 16. Ms. Duperron was still on the floor of the back seat with everyone’s

feet on top of her. Mr. Eashappie injected Ms. Duperron again on the trip between Edson and Hinton. They arrived at Hinton and stopped at the RBC cash machine. Ms. Bajusz had arranged for an E-Transfer to be sent to Mr. Desjarlais, and he stopped to withdraw some cash. He believes it was $150. [ 52 ] As part of the agreed statements of fact, it is admitted that Ahmid Alin sent $150 to Mr. Desjarlais 1:38 pm on April 7 and that Mr. Desjarlais removed $150 from his account at 2:01 pm that day. That stop is confirmed by video surveillance from the RBC in Hinton, showing Mr. Desjarlais walking into the vestibule. Mr.

Desjarlais recognized himself getting out of the passenger side of the truck and believes that Mr. Underwood was operating the truck at that time. [ 53 ] After the group left Hinton, they turned north on Highway 40 towards Grande Cache. Ms. Duperron was still in and out of sleep. There was some talk about what road or where to go. After 10 to 20 minutes, Mr. Desjarlais testified that Mr. Underwood got angry and told him to “turn in here”. Mr. Desjarlais turned left into a clearing on the north-west side of the highway.

From there, they drove up a “quad” trail until they could go no further because of the muddy conditions. That was about a hundred yards. [ 54 ] Mr. Desjarlais then stopped. He testified that everyone, but Ms. Duperron got out of the truck. She was still sleeping. Mr. Desjarlais was given a syringe loaded with what he believed to be more fentanyl. He believes that Ms. Bajusz gave him the syringe. He was told to inject Ms. Duperron with it. He was told the purpose of that was to overdose her. Mr. Desjarlais said that rather than inject Ms. Duperron he broke the needle off in Ms. Duperron’s sweater or hoodie.

He said the needle didn’t make contact with her skin. He did not think that Ms. Duperron was still handcuffed at that time. [ 55 ] Mr. Desjarlais believes that Ms. Duperron then woke up. He did not remember how she got out of the truck. [ 56 ] No further reference was made to Ms. Muskego at this point. It appears that if she had ever left the truck, she returned to it before anything else happened. The evidence at trial did not implicate Ms. Muskego with anything that was done to Ms. Duperron at this site. [ 57 ] Mr. Desjarlais testified that Ms. Bajusz then gave Mr. Underwood and Mr.

Eashappie more fentanyl, which they handed it to Ms. Duperron, ordering her to eat it. She did so. According to Mr. Desjarlais, Ms. Duperron was not handcuffed at the time she was ordered to eat the fentanyl. He said he could see her hands as she was given the fentanyl and ate it. [ 58 ] Mr. Underwood then retrieved a shotgun from his duffel bag which had been put in the truck bed early that morning. Mr. Desjarlais was aware Mr. Underwood’s bag had been put there but was not aware of the gun. Mr. Desjarlais described the shotgun and said that it was covered by duct tape. Mr.

Desjarlais loaded the gun and handed it to Mr. Eashappie. Mr. Eashappie pulled the trigger, but nothing happened. The barrel was pointed at Ms. Duperron’s head. Mr. Eashappie gave the gun back to Mr. Underwood, who pulled some of the duct tape off the gun, released the safety catch and then gave it back to Mr. Eashappie. He pulled the trigger again, but again the gun did not go off. [ 59 ] Mr. Desjarlais testified that he then told Mr. Eashappie to hit Ms. Duperron with the gun, saying “she’s suffered enough”. Mr. Eashappie swung the gun at Ms. Duperron’s head, striking her on the left side of her head.

That caused Ms. Duperron to fall down. According to Mr. Desjarlais she began to nod off. [ 60 ] Someone suggested they leave. Mr. Eashappie objected, saying that he wanted to see Ms. Duperron suffer. Shortly after that, however, Mr. Eashappie announced that she “was on her way out” and the group left. Before they did, Ms. Bajusz put an ID card in one of Ms. Duperron’s pockets. [ 61 ] According to Mr. Desjarlais, Ms. Duperron was propped up against a tree, alive but not awake. He didn’t recall her being handcuffed when they left.

He said that he had not seen the state of her hands while she was sitting up against the tree, and “just thought they were beside her.” [ 62 ] When asked again about seating configuration, Mr. Desjarlais couldn’t remember who was driving when they got to the McDonalds in Hinton. He said that he and Mr. Underwood had switched seats a few times, referencing a stop after Darwell. He couldn’t remember where the switch had taken place, saying “I think it was on the side of the road” and he thought Mr.

Underwood had driven for close to an hour. [ 63 ] The group headed back to Hinton where they stopped at the McDonalds on Carmichael Avenue for food. Mr. Desjarlais believes that both he and Mr. Eashappie went into the restaurant. The video surveillance from McDonalds shows Mr. Underwood and Mr. Eashappie in the restaurant between 3:13 and 3:33 pm. Mr. Underwood can be seen wearing a red shirt and Mr. Eashappie a checkered shirt. Mr. Desjarlais thinks he paid by debit. Mr. Desjarlais identified Mr. Underwood and Mr. Eashappie when shown the video during his testimony.

He also saw himself in the video clip. [ 64 ] Next, they visited with Mr. Underwood’s aunt Judith Desjarlais and her daughter Jessica. After greeting them outside her trailer, Ms. Desjarlais, Mr. Underwood, Mr. Eashappie, Ms. Bajusz and Ms. Muskego joined Jessica Desjarlais in her father’s trailer, which was also located on the site. They were not joined by Judith Desjarlais. Judith testified that Jessica was involved in drugs at the time. [ 65 ] Mr. Desjarlais says that he went into the father’s small trailer with the group. Meth was being passed around. Mr. Desjarlais declined to use any. He said that Mr.

Underwood gave him a bag of dope. Mr. Desjarlais then left the trailer, put the dope in one of his duffel bags, and changed his shirt. [ 66 ] After about half an hour at Desjarlais property, everyone got back in the truck and drove to Edmonton. Before leaving Hinton, Mr. Desjarlais says they stopped at a Safeway or Walmart and then a gas station. The stop at Safeway or Walmart was to get things for Ms. Bajusz as she’d been bitten by something at some stage. The stop at the Tempo was for fuel and cigarettes. Mr. Desjarlais paid for the fuel and cigarettes and Mr.

Underwood then got out of the truck and pumped some more gas.

[ 67 ] Between Hinton and Edson, Mr. Desjarlais recalled getting a phone call from the RCMP asking if he was part of a gas and dash from the Tempo station in Hinton. He said that at first, he was confused because he had paid for the gas he pumped. After initially denying involvement but being confronted with having been identified on store video footage, he said “that was me, I was there”. He told the officer that he would email the money to the Tempo, which he did at 5:32 pm on April 7 according to his bank records. [ 68 ] In Edson, the group stopped in a Sobeys store parking lot, which was near a Tim Hortons.

Mr. Underwood and Mr. Eashappie went into the Tim Hortons. Video footage from the Tim Hortons in Edson shows Mr. Eashappie and Mr. Underwood in the restaurant. Ms. Muskego can be seen walking into the restaurant. Other video footage shows Ms. Muskego getting out of a white truck. The identifications of Mr. Underwood, Mr. Eashappie and Ms. Muskego were made by Mr. Desjarlais when shown the video during his testimony. The Tim Hortons video clips from Edson were the photos used by RCMP in their news release asking for assistance with identifying the men shown.

The Tim Hortons video clips indicate that it was approximately 6:30 pm on April 7. [ 69 ] When they left the parking lot, Mr. Desjarlais blew a red light. Everyone was angry at him, and he had a “little freak-out”. Shortly after leaving Edson, Ms. Duperron’s cell phone and the gun were thrown out of the truck onto the right-hand side of the road in the bush. That was after Mr. Desjarlais had apparently missed a turn resulting in everyone else been angry at him about that. [ 70 ] After that Mr. Underwood was driving. Mr. Desjarlais was on his phone, and he felt that everyone was getting more upset with him.

His phone got taken from him, and Ms. Muskego searched it. He described a bizarre episode with a knife he found in the back seat. He put the knife on the console and said “if I wanted to hurt you, I would have. I’m no threat”. [ 71 ] The group had consumed the meth Mr. Underwood gave to Mr. Desjarlais on the way. They stopped at Angel’s house. She was a friend of Mr. Underwood’s. Mr. Desjarlais estimated the time was around 6:30 pm. [ 72 ] He felt that Mr. Underwood had turned somewhat hostile towards him. After he left Angel’s house, he received a text from Mr.

Underwood telling him to delete all of his texts, which he did. [ 73 ] Once Mr. Desjarlais returned home, he began using a lot of narcotics and called in sick for work. He didn’t sleep that night, and then went back to work on the Tuesday. He testified that he was using a lot of cocaine and meth. At work, he caused an accident within a few days of going back and knew that he was going to have to take a drug test because of the accident. He confided in his boss and told him he would fail the drug test. Mr.

Desjarlais says he told his boss about going to Jasper and witnessing a murder. [ 74 ] He was fired and was aware that his boss had called the police. That led to him being interviewed by RCMP. Following losing his job and talking to the RCMP, Mr. Desjarlais says he was using drugs heavily, and overdosed. He was taken to hospital in Mayerthorpe and phoned one of his good friends explaining what had happened. He believes that friend called the police as well. [ 75 ] Mr. Desjarlais testified that he was intoxicated by drugs during his interviews with Cst. Borkent and his initial interviews with Sgt. Bradfield.

He got off drugs towards the end of April. [ 76 ] None of the RCMP officers who had interviewed Mr. Desjarlais during that period felt that he was intoxicated when interviewed. [ 77 ] In cross-examination he candidly admitted that drug intoxication affected his memory and his judgment and that from April 7 until the end of April he had been using drugs heavily and was trying to forget what had happened on April 7. [ 78 ] Mr. Desjarlais was initially interviewed by Constable Borkent on April 20, 2019. The initial interview at Mr. Desjarlais’ residence was interrupted when friends arrived, so it was postponed.

The interview continued at the Hinton RCMP detachment. Mr. Desjarlais starts by saying “I just want to do the right thing” and shortly after says “I didn’t do anything; I was just scared I would go to jail just because I drove the vehicle.” [ 79 ] RCMP Major Crimes then became involved. On April 23, Mr. Desjarlais was picked up by police at his home in Evansburg and driven to the Hinton detachment. Mr. Desjarlais knew he could be charged. He spoke at length to Sergeant Bradfield and Corporal Harnish. Mr. Desjarlais said that he told the two RCMP officers the whole story and then took them to where Ms.

Duperron’s body was. They found the body in the location identified by Mr. Desjarlais and eventually brought Mr. Desjarlais back to Edson. Ms. Duperron could be seen to be handcuffed when her body was viewed. [ 80 ] Mr. Desjarlais was again interviewed April 24. On April 24 he signed a Waiver of Informer Privilege. There were further interviews with the RCMP after that date. On April 7, Mr. Desjarlais was granted immunity from prosecution for any offences arising from the death of Ms. Duperron. The immunity agreement is in evidence. [ 81 ] There was then a discussion about Mr.

Desjarlais “going undercover” to help RCMP with their ongoing investigation. He was paid some $2000 per month for about 8 months, had some free meals and hotel rooms, and received some assistance for a truck or insurance payment. His services were essentially to make contact with Mr. Underwood, Mr. Eashappie, Ms. Bajusz and Ms. Muskego. [ 82 ] In the context of Mr. Desjarlais’ undercover work, I heard a number of intercepted or recorded conversations. All of the intercepted communications were orchestrated by Mr. Desjarlais’ RCMP handlers. [ 83 ] Initially, Mr. Desjarlais met with Mr.

Underwood at the Edmonton Remand Centre on October 28, 2019. It was a video visit and was recorded. Mr. Underwood was aware that the conversation was being recorded. The pretext of that visit was for Mr. Desjarlais to put some money in Mr. Underwood’s canteen account. The timing was shortly after news releases had shown Mr. Underwood’s and Mr. Eashappie’s images from some of the video surveillance footage from April 7. [ 84 ] Mr. Desjarlais said that he wanted to talk to him about a news release. Mr. Underwood tells him to speak to Cassandra Cann. Mr. Underwood tells Mr. Desjarlais that he heard that Mr.

Desjarlais had been arrested. Mr. Desjarlais tells him that he was arrested for speeding and gun possession. Nothing of significance is said during that conversation.

[ 85 ] Next, Mr. Desjarlais met with Ms. Muskego on the pretext of wanting to help her get some baby things for the baby she was expecting. The meeting on November 4, 2019, was shortly after RCMP had announced that Ms. Duperron’s body had been found near Hinton. They had also posted pictures of Mr. Underwood and Mr. Eashappie taken from the Tim Horton’s surveillance video in Hinton on April 7. [ 86 ] The objective for the meeting was to have Ms. Muskego implicate herself and to provide contact information for Ms. Bajusz and Mr. Eashappie. Mr. Desjarlais was under the impression it was Mr.

Underwood’s baby, and he wanted to help his cousin. The meeting took place in a Walmart in Lloydminster and the sound quality is very poor because of the location of the microphone and background noise. For this meeting, Mr. Desjarlais was accompanied by Undercover Agent “Jon”. UC Jon played the role of Mr. Desjarlais’ friend and employer who had some knowledge about what had happened to Ms. Duperron. [ 87 ] Much of the conversation is unintelligible. Ms. Muskego is obviously cautious in discussing the events of April 7. They begin to discuss the recent new items, and Ms. Muskego said “I didn’t tell anybody.

I don’t talk about it to anybody”. [ 88 ] UC Jon talks about “loose ends” and says, “maybe you guys are who fucking greased that chick at that time”. Mr. Desjarlais says “yeah”, and UC Jon testified that Ms. Muskego nodded. [ 89 ] They talked about stopping at Tim Hortons and Ms. Muskego told him it was because she had to use the bathroom. They talked about everyone getting mad at Mr. Desjarlais when he took a wrong turn in Edson, to which Ms. Muskego said, “yeah and that wasn’t funny”. [ 90 ] Sometime after that, UC Jon and Ms. Muskego have a conversation in Mr. Desjarlais’ absence.

UC Jon was expressing concerns about Mr. Desjarlais and him being implicated by others. She tells him that she hasn’t told anyone about what happened. Ms. Muskego said that all Mr. Desjarlais was the just the driver. [ 91 ] As for her role, she confirmed that they got Ms. Duperron out of the vehicle, she was not dead when they arrived at the site because she could hear Ms. Duperron. She was not sure whether Ms. Duperron was dead when they left her as she said, “I really didn’t get outta the truck”. She said “I don’t know the boys took her out. I stay in the truck.

I didn’t look.” She later said all she’d done at the site was crawl over the back seat of the truck into the front seat. [ 92 ] When asked if she was scared, she said, “I was but I couldn’t be” and when asked to explain that she said “’cause I was already deep in it”. She said that all she had done was grab Ms. Duperron’s phone. [ 93 ] She confirmed that the people involved were herself, Buddy, Rex (Mr. Eashappie), Kala and Bret and said, “it was just us”. She also confirmed that she, Kala, Rex, and Ms. Duperron were in the back seat of the truck. [ 94 ] On November 2, a number of calls between Mr.

Underwood and Cassandra Cann, Mr. Underwood’s girlfriend at the time, were recorded. Mr. Underwood was at the Edmonton Remand Centre. [ 95 ] It is obvious from these calls that they are discussing the RCMP having released photos of Mr. Underwood and Mr. Eashappie from the Hinton Tim Horton’s video surveillance on April 7. The caption of the new release says “We’re releasing some new photos of people we want to talk to regarding Nature Duperron’s murder. Do you know these men? Help me solve this one?” (Exhibit 21) [ 96 ] Ms. Cann says “it’s only a matter of time ‘cause it took me two seconds.

It’s only a matter of time before people are fucking trying to get cash for tips. Mr. Underwood asks “Why is it that easy to identify?” and Ms. Cann replies “Yep”. [ 97 ] Ms. Cann tells him “Bret just messaged me and said, I don’t know if you see the news but we need to meet.” Mr. Underwood tells her “just tell him to just chill”. [ 98 ] Ms. Cann phones Mr. Underwood again some hours later and tells him that Mr. Desjarlais wants to meet with her. Mr. Underwood says “just tell him be like fucking keep quiet and just, if need be, call a lawyer right.” [ 99 ] Ms. Cann next phones Mr. Underwood at about 8:00 pm.

She had just met Mr. Desjarlais and tells Mr. Underwood he has “two people who definitely know everything”. She says she told Mr. Desjarlais to “shut the fuck up. And you just don’t say nothing and if you don’t give them nothing, they got nothing.” [ 100 ] She attempts to reassure Mr. Underwood that “none of you are mentioning, including yourself, are even hot right now…you’re panicking for nothing.” Mr. Desjarlais called Mr. Underwood again on December 19, 2019. He talks about being interviewed and asked for a DNA sample.

He goes on and asks, “Like is there anything that we left behind from when we, well when we killed Nature, or what?” and tells Mr. Underwood he’s “getting sketched out”. [ 101 ] Mr. Underwood says “whoa, whoa, whoa, whoa. What are you talking about?” and goes on to say “You don’t ever say anything like that ever. Okay?” He tells Mr. Desjarlais to get a lawyer and “don’t ever fuckin’ bring up anything about anything”. [ 102 ] On December 19, 2019, a further conversation between Mr. Underwood and Ms. Cann was recorded. In this conversation, Mr. Underwood tells Ms.

Cann that his cousin “kind of said something he shouldn’t have”. Ms. Cann asks, “One to ten, how bad?” to which Mr. Underwood replies “about a twenty”. [ 103 ] He goes on to tell her that the RCMP interviewed his cousin and asked him for his DNA. “and then he said something and tried to ask me something and I’m like, whoa, whoa, whoa, like I don’t know what the fuck”. [ 104 ] It is clear this conversation references Mr. Desjarlais saying to him “when we killed Nature”.

[ 105 ] On January 28, 2020, a further conversation between Ms. Cann and Mr. Underwood is recorded. Mr. Underwood has just been served with a search warrant for his residence. He tells her he needs to get hold of Kala because they told him they were going back to Kala’s place. Ms. Cann tells him not to reach out to Kala because that is what they want him to do. [ 106 ] Mr. Desjarlais was extensively cross-examined by Mr. Jordon for Mr. Underwood and by Mr. Moreau for Ms. Muskego. [ 107 ] The cross-examinations were wide ranging, but focused on a number of areas: • Mr.

Desjarlais’ history of illegal drug use and drug dealing; • Mr. Desjarlais’ level of intoxication on April 7; • Mr. Desjarlais’ lack of sleep between April 6 and April 8; • Mr. Desjarlais’ heavy drug use after April 7 wanting to try to forget about what happened; • Mr. Desjarlais’ level of intoxication while being interviewed by RCMP in April 2019; • Mr. Desjarlais’ dishonesty in initially lying to RCMP about his involvement in the Tempo gas and dash; • Mr. Desjarlais initially minimizing his involvement to RCMP and not disclosing that he had suggested that Mr. Eashappie hit Ms.

Duperron with the gun or that he had broken a needle in Ms. Duperron’s hoodie; • Mr. Desjarlais’ self-admitted memory problems; • Incentives to lie to RCMP, including getting his side of the story to them first, wanting immunity from prosecution, and getting paid to work undercover with them; • Contradictions between trial testimony and earlier statements or testimony; and • Inconsistencies between his testimony and other testimony or evidence, including: o His lack of precision about what was said by Mr. Underwood about the “call”; o Instructions allegedly given to him by Mr.

Underwood about the drive to Hinton; o Whether Mr. Underwood had driven the truck on the way up to Hinton; o Whether he actually saw Ms. Muskego assault Ms. Duperron; o Whether he saw Mr. Underwood load the gun; o Whether he saw Ms. Muskego get out of the truck after they left Highway 40; o Whether he ever saw Mr. Underwood hand fentanyl to Ms. Duperron; and o How the handcuffs could have been found on Ms. Duperron’s body when he testified, she did not have them on when they left her off Highway 40. [ 108 ] Mr. Jordan for Mr. Underwood argues that Mr.

Desjarlais was so tainted as a witness and his testimony was so unreliable that none of it should be accepted. [ 109 ] Mr. Moreau for Ms. Muskego was less focused on Mr. Desjarlais’ credibility, but he emphasized unreliability and argues that Mr. Desjarlais’ testimony was so unreliable that none of it should be accepted. Other evidence [ 110 ] There was nothing of any significance in contest over any of the RCMP officers’ testimony. Most importantly, their evidence was entirely confirmatory of Mr.

Desjarlais’ testimony about him making voluntary disclosures to the RCMP about his involvement in what happened to Ms. Duperron on April 7, 2019. [ 111 ] While Mr. Desjarlais did not go directly to the police, when he made a limited disclosure about witnessing a killing to his boss a few days after April 7, he was not surprised when police contacted him and wanted to speak to him about his disclosure. [ 112 ] The initial interview was not as well handled as it might have been, but it offered no inducements to Mr. Desjarlais. Mr.

Desjarlais spoke freely to RCMP about his involvement and extensive cross-examination only pointed out that Mr. Desjarlais had initially withheld him having told Mr. Eashappie to hit Ms. Duperron with the gun to end her suffering, after Mr. Eashappie had injected her with fentanyl on many occasions, made her eat fentanyl and tried to shoot her twice in his effort to get rid of her. [ 113 ] Mr. Desjarlais was interviewed by major crimes in a more controlled environment that with Cst. Borkent, and he was then Chartered and cautioned. Mr.

Desjarlais knew that he was at risk of being charged but says he was concerned then about doing the right thing and was not focused on what might happen to him. [ 114 ] Mr. Desjarlais then led the RCMP to Ms. Duperron’s body. He provided a chronology of events and locations, leading RCMP to recover video surveillance footage, store records, bank records, cell phone records and cell tower records.

[115] Only after RCMP completed their interview process did the subject of immunity from prosecution arise. Mr. Desjarlais hadlegal advice over that and was also aware that the immunity agreement might be negated if he testified at trial differently than inaccordance with the information provided in his various statements. [116] Any suggestion of going undercover, or being paid for assisting ongoing investigations, came up long after Mr. Desjarlais hadvoluntarily implicated himself in what the Crown characterizes as a first-degree murder.

He had done so knowing that he might becharged as a result of his involvement in Ms. Duperron’s death. [117] Following extensive cross-examination, it is clear that Mr. Desjarlais’ testimony at trial was substantially the same as theinformation given to RCMP in his numerous statements. That fact was acknowledged in the Agreed Statement of Facts entered as Exhibit18. [118] The medical examiner, Dr. Balachandra, testified that in his opinion, Ms. Duperron died from a drug overdose. Her systemcontained toxic levels of both fentanyl and methamphetamine. He observed injection sites on her body.

He observed bruising on her bodyand noted a bruise on the left side of Ms. Duperron’s head. That was consistent with being struck with a blunt object, like a shotgunbarrel. [119] Dr. Balachandra saw no evidence that anything else such as these other injuries or exposure contributed to her death. Hedeferred to the chief toxicologist in drug toxicity issues. [120] Dr. Chatterton, Alberta’s chief toxicologist, testified as to the levels of methamphetamine and fentanyl found in Ms. Duperron’ssystem. Both were at a potentially toxic or fatal level. He could not rule out that one or the other may have caused Ms.

Duperron’s deathbut thought it likely that both contributed to her death. He thought it unlikely that the fentanyl found in Ms. Duperron’s stomach werecontributors to her death. Jessica Desjarlais [121] Both Defendants raise Jessica Desjarlais’ testimony as important independent evidence that cannot be reconciled with Mr.Desjarlais’ account. According to Ms. Desjarlais’ testimony on cross-examination, she met Nature Duperron when the group arrived ather mother’s trailer property in Hinton. After Mr.

Underwood greeted his aunt, the group joined Jessica Desjarlais in her father’s smalltrailer, which was located on the same property as the aunt’s trailer. [122] According to Ms. Desjarlais, “some of us” consumed some drugs in the trailer. She recognized her cousin Mr. Underwood butdid not know any of the other visitors. She thought that one of the men stayed in the truck. Ms. Desjarlais testified that the two womenappeared unharmed. They were friendly towards each other and accompanied each other to the bathroom. [123] Ms. Desjarlais said that one of the women introduced herself as “Nature”.

Sometime later, when the RCMP were investigatingMs. Duperron’s killing, Ms. Desjarlais and Jessica were interviewed by RCMP. Jessica was shown a Facebook posting with a photographof Nature Duperron. Jessica said that the person in the Facebook photo was the person who introduced herself at “Nature” to her in April2019 when Mr. Underwood and the group arrived at her mother’s property in Hinton. [124] Ms. Desjarlais’ testimony did not include any information about the time of day when these things happened.

Her mother Judithwas vague on times. [125] Jessica confirmed this narrative and her identification of the Facebook photo on cross-examination. [126] She recalled having seen the RCMP media release at some time before she was interviewed by police and recalls that Nature’sname was included with the photograph in the release. [127] I will deal with Ms. Desjarlais’ testimony in my analysis. Case law [128] For the purposes of argument, I was given a number of cases.

For the Crown: R v Vetrovec, (SCC), 1982 CarswellBC 663 (SCC); R v Kehler, 2004 SCC 11; R v Thatcher, (SCC), 1987 CarswellSask 338 (SCC); R v Wood, 1989 CarswellOnt 804 (ONCA); R v H(LI), 2003 MBCA 97; R v Picton, 2010 SCC 32; R v Briscoe, 2010 SCC 13; R v Beardy, 2016 MBCA 68; R v Cowan, 2021 SCC 45;

R v Ouellette, 2022 ABCA 40; R v Hernandez (Vu), 2012 SCC 40; R v Bird, 2009 ABCA 45; R v Bird, 2009 SCC 60; R v Nygaard, (SCC), 1989 CarswellAlta 152 (SCC); R v Harbottle, 1993 CarswellOnt 121 (SCC); R v Sundman, 2022 SCC 31; R v Nette, 2001 SCC 78; and R v Maybin, 2012 SCC 24. For Mr. Underwood: R v Scher, 2021 ABQB 803 (referencing Vetrovec); and R v Lawrence, 2020 ABCA 268; For Ms.

Muskego: R v Martineau, (SCC); USA v Shepherd, (SCC); R v Harbottle, (SCC); R v Nette, 2001 SCC 78; Dunlop and Sylvester v The Queen, (SCC); R v Ouellette, 2022 ABCA 40; R v Cowan, 2021 SCC 45; R v Briscoe, 2010 SCC 13; R v Creighton, (SCC), [1993] 3 SCR 3; R v Javanmardi, 2019 SCC 54, and Vetrovec v The Queen, (SCC). Analysis [129] The Crown argues strenuously that it has made out its case for first degree murder against both Mr.

Underwood and Ms.Muskego on either theory: that this was a planned and deliberate killing under section 231(2) as well as constructive first-degree murderunder section 231(5). [130] Section 231(2) provides:

(2) Murder is first degree murder when it is planned and deliberate. [131] Section 231(5) provides:

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of aperson when the death is caused by that person while committing or attempting to commit an offence under one of the followingsections: (

a) section 76 (hijacking an aircraft); (

b) section 271 (sexual assault);

(

c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); (

d) section 273 (aggravated sexual assault); (

e) section 279 (kidnapping and forcible confinement); or (

f) section 279.1 (hostage taking). [132] It is also clear that the only direct evidence that puts Mr. Underwood and Ms. Muskego with Ms. Duperron on April 7, 2019, isthe testimony of Bret Desjarlais, but for the video surveillance at the Servus Credit Union cash machine kiosk that morning. The videosurveillance clearly shows Ms. Duperron who is recognizable from the photographs of her in Exhibit 1, the RCMP Photo Booklet. [133] Mr. Underwood and Mr. Eashappie are recognizable from the various video surveillance clips in evidence and particularlyExhibit 21. It is only Mr.

Desjarlais’ evidence that says a robbery took place, and following that puts Ms. Duperron, Mr. Underwood,Mr. Eashappie, Ms. Bajusz and Ms. Muskego in his truck driving to Hinton. While it is clear that Ms. Duperron had methamphetamineand fentanyl in her system and that was the cause of her death, only Mr. Desjarlais’ testimony has Ms. Bajusz supplying the fentanyl, Mr.Eashappie injecting it into Ms. Duperron, and then Mr. Eashappie and Mr. Underwood forcing Ms. Duperron to ingest more fentanyl. [134] There is only Mr. Desjarlais’ testimony that Mr. Underwood made a “call” that Ms.

Duperron knew too much and that they hadto get rid of her. [135] And there is only Mr. Desjarlais’ evidence as to who did what to whom at the site off Highway 40 where Ms. Duperron’s bodywas found. [136] Without his evidence, there is really nothing to prove that anyone other than him committed any crimes. And he has beengranted immunity from prosecution for these charges. [137] Mr. Jordan and Mr. Moreau rightly describe Mr. Desjarlais as a “Vetrovec” witness. He was at the time of these events a self-described drug user and drug dealer.

On the day in question, he was attempting to sell some heroin he had in his possession. In his owntestimony, he admitted to driving the group to Hinton after he understood Mr. Underwood to say that they needed to kill Ms. Duperron.While his role was mainly limited to that of being the driver, he facilitated the process by purchasing gas for his truck, and eventually byputting a syringe in her hoodie. Even though he says he broke off the needle, that act could be seen as involvement in Ms. Duperron’sdeath. Further, he did tell Mr. Eashappie to hit Ms. Duperron with the gun, which Mr. Eashappie did. That caused Ms.

Duperron to falldown, and the evidence indicates that she eventually died where she fell. [138] All participants have referred me to Vetrovec v The Queen. In R v Khela, the Supreme Court restated the principles in that caseat paras 11 and 12: [11] The central purpose of a Vetrovec warning is to alert the jury to the danger of relying on the unsupported evidence of unsavourywitnesses and to explain the reasons for special scrutiny of their testimony.

In appropriate cases, the trial judge should also draw theattention of the jurors to evidence capable of confirming or supporting the material parts of the otherwise untrustworthy evidence. [12] Since the decision of this Court in Vetrovec, the very real dangers of relying in criminal prosecutions on the unsupported evidence ofunsavoury witnesses, particularly “jailhouse informers”, has been highlighted more than once by commissions of inquiry into wrongfulconvictions (see, for example, The Commission on Proceedings Involving Guy Paul Morin: Report (1998) and The Inquiry RegardingThomas Sophonow (200l)).

The danger of a miscarriage of justice is to be borne in mind in crafting and in evaluating the adequacy of acaution. [13] The crafting of a caution appropriate to the circumstances of the case is best left to the judge who has conducted the trial. Noparticular set of words is mandatory… [139] In Khela, the majority (6-1) approved the Ontario Court of Appeal’s “principled framework” at paras 37-38: [37] In Sauv—, at para. 82, the Ontario Court of Appeal set out a principled framework that will assist trial judges inconstructing Vetrovec warnings appropriate to the circumstances of each case.

That proposed framework, which I adopt and amplifyhere, is composed of four main foundation elements: (1) drawing the attention of the jury to the testimonial evidence requiring specialscrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioning the jury that it is dangerous to convict onunconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that the evidence is true; and (4) that the jury, indetermining the veracity of the suspect evidence, should look for evidence from another source tending to show that the untrustworthywitness is telling the truth as to the guilt of the accused (R. v.

Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 17-19). [38] While this

summary should not be applied in a rigid and formulaic fashion, it accurately captures the elements that should guidetrial judges in crafting their instructions on potentially untrustworthy witnesses.

The fourth component, of particular interest on thisappeal, provides guidance on the kind of evidence that is capable of confirming the suspect testimony of an impugned witness. [140] It is clear that I must charge myself as I would a jury, recognizing the dangers of convicting on the basis of uncorroboratedevidence from an unsavory witness. [141] In doing so, it is also clear that the trier of fact is entitled to accept all, some, or none of any particular witnesses’ testimony. (Rv Mathieu, (2009) (QC CA), 90 CCC (3d) 415 (QCCA), aff’d (SCC), [1995] 4 SCR 46.) [142] Where testimony comes from a Vetrovec witness, it is especially important to look for supporting evidence from sources otherthan the potentially untrustworthy witness.

[ 143 ] I am also familiar with the distinction between credibility and reliability when assessing a witnesses’ testimony as discussed in cases such as R v HC , 2009 ONCA 56 . [ 144 ] R v Villaroman confirms that inferences of guilt from circumstantial evidence may only be drawn if that inference is the “only reasonable inference that such evidence permits” (at para 30). [ 145 ] In Alberta, the Court of Appeal confirmed a number of “non-exclusive characteristics” of witnesses who require special scrutiny in R v Lawrence at para 26 : 1. Did the witness have any motive to lie or mislead the court? 2.

Did the witness receive benefits for cooperation such that there is a risk he is lying to the court? 3. Did the witness have a long criminal history? 4. Did the witness have a history of lying to or manipulating the police? 5. Was the witness an accomplice with knowledge of the circumstances such that it would be easy to falsely implicate the accused? 6. Did the witness have access to disclosure or other information that may explain his evidence or how it was given? 7. Did the witness minimize his own wrongdoing? 8. Did the witness exhibit selective memory? 9.

Did important evidence emerge only after the witness exhausted his memory or after prodding by police? 10. Did new information emerge for the first time at trial despite many previous statements? 11. Was the witness evasive? 12. Was the witness testimony inconsistent with external evidence, particularly objective evidence that has been accepted? 13. Did the witness provide prior inconsistent statements? 14. Was the witness internally consistent: did the witness evidence change in testifying? 15.

Upon the application of common sense, is the witness evidence impossible, improbable, or unlikely? [ 146 ] These characteristics are the focus of the defense arguments concerning Mr. Desjarlais. The Crown focuses on what they describe as the 37 points where Mr. Desjarlais’ testimony has been confirmed or corroborated by other evidence. [ 147 ] My starting point for my analysis of Mr. Desjarlais’ testimony is the areas where he his testimony has been inconsistent or is contradicted by other evidence. There are really only 2 areas where Mr. Desjarlais’ testimony is at odds with other evidence. Handcuffs [ 148 ] Mr.

Desjarlais’ testimony was clear on the subject. He did not believe Ms. Duperron was handcuffed when he was directed to inject her with fentanyl. He testified he was in the front seat and Ms. Duperron was in the back seat. He reached over the seat and put the syringe in Ms. Duperron’s armpit area. He broke off the needle rather than inject her. He was also clear that Ms. Duperron was not handcuffed when she was directed to ingest fentanyl by Mr. Eashappie and Mr. Underwood.

His memory is that her hands were out in front of her and not handcuffed. [ 149 ] Yet when her body was found on April 23, she was clearly handcuffed, with her hands behind her. [ 150 ] Could Mr. Desjarlais be mistaken about her being handcuffed? Possibly, although it would be impossible for her to feed herself fentanyl as he described if she was handcuffed. Could someone have removed the handcuffs at some time before they arrived at the site off Highway 40, and then put them back on after she had been knocked down? That is possible, and more likely. [ 151 ] Mr.

Desjarlais testified in redirect that he only had an impression that Ms. Duperron’s hands were beside her. There was no questioning as to whether there was any opportunity to put the handcuffs back on before they drove off. [ 152 ] Ultimately, this is a mystery that is not explained in the evidence and cannot be reconciled. It is a detail although it essentially has no bearing on any of the issues in this case such as intent, planning and deliberation, and acts that caused or contributed to Ms. Duperron’s death. [ 153 ] It is troubling, but it does not impact on either Mr. Desjarlais’ credibility or reliability.

Jessica Desjarlais [ 154 ] Ms. Desjarlais’ testimony cannot be reconciled with Mr. Desjarlais’ narrative. Her identification of Ms. Duperron as being one of the two women who arrived at her mother’s trailer with Mr. Underwood was clear. She was certain of her identification. The circumstances surrounding this were that she was herself involved with drugs and at the time she was consuming drugs. She is Mr. Underwood’s cousin. She had never met any of Ms. Duperron, Ms. Bajusz or Ms. Muskego before. Two women came into her father’s

trailer. They seemed to be getting along. No injuries were visible. They went to the bathroom. They were there for an hour or less and left. [ 155 ] Much doubt has been raised generally about the accuracy of identification evidence. I view it as being in a similar category to testimony from dubious witnesses, in that it may be dangerous to accept uncorroborated identification evidence. It certainly may be accepted, but brief interactions with strangers do not provide a lot of confidence that they may be accurately identified months later from a photograph. This was not as if Ms.

Duperron’s photo was selected out of a photo lineup. [ 156 ] Ms. Desjarlais estimated she was with the group for as much as an hour. [ 157 ] It defies credibility that Ms. Duperron would have been unharmed and friendly to either Ms. Muskego or Ms. Bajusz after having been robbed and abducted a minimum of 5 hours earlier, hit and kicked, handcuffed, and pushed to the floor of the back seat of the truck. [ 158 ] As far as fitting into the chronology, if Ms. Desjarlais’ identification was correct, the parties would have had to go to Judith’s property sometime after 2 pm when Mr.

Desjarlais is captured by the RBC video footage in Hinton. The next video capture is of Mr. Underwood and Mr. Eashappie at 3:13 at McDonalds. Judith Desjarlais says Mr. Underwood, and the group were with her for about 20 minutes. Jessica Desjarlais says the group were with her in her father’s trailer for about an hour. Excluding the time to get to and from the RBC to the trailer park, there is not enough time between sightings for the visit to have taken place then. [ 159 ] Even if the visit had taken place then, the group left McDonalds sometime after 3:30.

They would have had to go from there to the site where Ms. Duperron was left, deal with Ms. Duperron there, and then get to Tim Hortons in Edson by 6:30. That would not have left enough time to cause the physical injuries to Ms. Duperron, overdose her with fentanyl and wait until she was nodding off, when one also factors in the shopping at Walmart to get Ms. Bajusz something for her bites and get gas at Tempo. [ 160 ] I simply do not believe Ms. Desjarlais and I conclude that she was at a minimum mistaken about her identification.

If the woman she identified as Nature introduced herself as such, it was because the woman lied to her. Credibility issues [ 161 ] It is best to deal with the Vallee characteristics as adopted in Lawrence . I will deal with 1-4 together: 1. Did the witness have any motive to lie or mislead the court? 2. Did the witness receive benefits for cooperation such that there is a risk he is lying to the court? 3. Did the witness have a long criminal history? 4. Did the witness have a history of lying to or manipulating the police? [ 162 ] The key consideration here is that the RCMP found Mr.

Desjarlais because of his voluntary statements to his boss. Those statements were made within a week or so of April 7. It is clear from Mr. Desjarlais’ testimony that he was wracked with guilt following Ms. Duperron’s death. He tried to erase his memories with heavy drug use. Like Lady MacBeth, those memories could not be washed away. While intoxicated, he went to work and caused an accident. That resulted in the loss of his job and further descent into drugs. [ 163 ] The first interview with police was initiated by Cpl Borkent. It occurred less than 2 weeks from Ms. Duperron’s death. Mr.

Desjarlais was not Chartered and cautioned but spoke freely. The interview with Cpl Borkent continued the next day, April 21, and Mr. Desjarlais provided nearly full details of the events of April 7. [ 164 ] According to Mr. Desjarlais, he had been advised by a friend to go to the police and tell them the truth. There was some sense that it would be better to get his version of events to the police before anyone else did, for fear that they would implicate him beyond what his role had actually been. [ 165 ] I am satisfied that Mr.

Desjarlais’ motive for speaking freely to the police was as he described it: to do the right thing. He knew he had been involved in criminal activities and could be charged himself. But in all of his statements to police, he made no inquiries as to what might happen to him. He concentrated on answering their questions. [ 166 ] The evidence, and the agreement made in these proceedings, is that no inducements were made to Mr. Desjarlais to make the statements he made. He did so knowing he did not have to make any statements and that any statements could be used against him.

He waived informant privilege. [ 167 ] In his earlier statements, he did not volunteer that he had broken the needle in Ms. Duperron’s jacket, nor did he volunteer that he had told Mr. Eashappie to hit Ms. Duperron with the gun. When pressed by Sgt. Bradfield, however, he made both those admissions at a time when his jeopardy was full. [ 168 ] The argument that the Immunity Agreement provides a motive to lie is interesting.

What the Immunity Agreement says is that: 3.2.1 no statements made by Bret Desjarlais during the one or more interviews held by virtue of this Agreement will be used in evidence against Bret Desjarlais in any criminal proceedings…except in the case of: (

a) Bret Desjarlais subsequently giving, in any trial, hearing or proceeding (including any in which he is an accused) evidence that is materially different from that given by him under this agreement, or

(

b) Bret Desjarlais being charged as a result of anything said or done by him during the course of the aforementioned interviews, with one or more offences of committing perjury, giving contradictory evidence, fabricating evidence, obstructing a peace officer, obstructing justice, or committing public mischief by false statements. That in essence is a representation or warranty that Mr. Desjarlais has told them the truth. And that is how Mr.

Desjarlais answered the question about knowing he could be charged if he gave different evidence at trial: [ 169 ] Transcript Day 4 page 24: Q …when you were asked that you had to stick to the same story that you had already told, you would agree with me that you understood that to be what you had told police in your interviews with them regarding this investigation” A Yeah. Q And you understood that, if you did so, you would not be prosecuted for your role in Ms. Duperron’s death? A Yeah. Q And really, that’s why you’re here today testifying? A I’m testifying because it’s really the right thing to do, right?

Q It has nothing to do with the indemnity agreement? A What’s that? Q It doesn’t have anything to do with the immunity agreement? A No. I’d testify even if I didn’t have it. Transcript Day 4 pages 99-100: Q And in order to hang on to that (immunity, payment as police agent), you know that your job is to tell a certain story. A Tell the truth. Q Well the truth as you remember it. A Yes Q With your memory that we’ve already agreed is unreliable. A Yes [ 170 ] I accept those answers as sincere. Crown and Defence have full knowledge of everything said by Mr.

Desjarlais to the RCMP between April 20 and June 7 when the Immunity Agreement was made. With that knowledge, and the evidence that actually came out at trial, they have agreed by way of Exhibit 18 made on September 20 that “the version of events Desjarlais provided in this narrative (the warned and cautioned statement given on April 23, 2019) is largely consistent with the narrative he testified to at trial.”. [ 171 ] I will deal separately with some of the inconsistencies Mr. Desjarlais was cross-examined on. [ 172 ] There is no doubt that Mr.

Desjarlais received benefits from RCMP for acting as a police agent in attempting to get incriminating statements from Ms. Muskego and Mr. Underwood. All of that occurred after his statements had been given to RCMP. I do not see that this after the fact work compromised Mr. Desjarlais’s credibility or reliability as a Crown witness. [ 173 ] As for his criminal history, Mr. Desjarlais admitted to use of illegal drugs and selling illegal drugs for a number of years before April 7, 2019. He did so freely and made no attempt to offer any excuses for his involvement. He has no criminal record that was put in evidence.

The events of April 7 occurred in the course of illegal drug use by all involved and was precipitated by Mr. Desjarlais wanting to sell some heroin as he needed money. However, Mr. Desjarlais has no history of any crimes of dishonesty or any offences against the administration of justice. Because of his involvement in criminal activities, his evidence must be viewed cautiously, but his admitted history does not of itself cause me to reject his testimony. [ 174 ] As for a history of lying to the police, Mr. Jordan notes that Mr. Desjarlais initially denied involvement in Ms.

Duperron’s murder, and that he initially denied involvement in the Tempo gas and dash. He also initially said it was others who broke the syringe needle in Ms. Duperron’s jacket. [ 175 ] It can certainly be argued that when confronted by some potentially incriminating things, Mr. Desjarlais’ reaction was to minimize his involvement. He was, however, always quick to provide fulsome details. His statement to Cst. Borkent that he “didn’t do anything” is substantially correct but for his breaking the needle in Ms. Duperron’s jacket (which had nothing to do with her death and caused her no harm) and telling Mr.

Eashappie to hit her with the gun (which was motivated by pity for Ms. Duperron). It was Mr. Underwood who did the “gas and dash”. Mr. Desjarlais paid for the gas he pumped. It is not surprising that he initially denied involvement as reaction to a telephone call out of the blue when he was not the one who had failed to pay [ 176 ] In any event, these three examples do not demonstrate someone who has a history of lying and do nothing to weaken Mr. Desjarlais’ credibility in my mind.

5. Was the witness an accomplice with knowledge of the circumstances such that it would be easy to falsely implicate the accused? [ 177 ] There is no question that this factor applies here. Mr. Desjarlais was a participant in the events of April 7 and but for a few occasions when he was out of the truck for purchases, he was witness to all of the conversations and events leading to and following Ms. Duperron’s death. 6. Did the witness have access to disclosure or other information that may explain his evidence or how it was given? [ 178 ] There is no information that Mr.

Desjarlais had access to anything other than his own statements. He was not shown the video surveillance footage until a week or so before the commencement of the trial such that his statements to RCMP and even his testimony at the preliminary inquiry would not have influenced his evidence. Indeed, it was Mr. Desjarlais who led RCMP to all of the video footage and store records, so his memories were not created by the things the RCMP obtained. This factor is of no bearing here. 7. Did the witness minimize his own wrongdoing? [ 179 ] This has been canvassed above. Mr.

Desjarlais in early discussions with RCMP minimized some aspects of his role, but while still fully in jeopardy of being charged, completed the record by adding his role in breaking the needle and telling Mr. Eashappie to hit Ms. Duperron with the gun. Nothing came out in evidence at trial that implicated Mr. Desjarlais beyond what he had said himself. Indeed, in the conversation between UC Jon and Ms. Muskego, she confirmed that Mr. Desjarlais’ only role was as the driver. [ 180 ] This factor does not apply here. 8.

Did the witness exhibit selective memory? [ 181 ] In his testimony at trial, my observation and conclusion is that Mr. Desjarlais did his best to answer all questions as truthfully and honestly as he could. He was cautious and asked for clarifications when he needed them. He was not argumentative at all. He was if anything quick to agree with Defence counsel when an inconsistency was pointed out. He did not seem defensive and was never evasive. [ 182 ] Mr.

Desjarlais made no attempt to hide behind “I don’t remember” or use memory issues as an excuse to avoid answering difficult or unpleasant questions. [ 183 ] Additionally, I did not see any attempts by Mr. Desjarlais to exaggerate things. [ 184 ] I characterize Mr. Desjarlais as a good, responsive witness. 9. Did important evidence emerge only after the witness exhausted his memory or after prodding by police? [ 185 ] Nothing is in evidence to this effect. Ultimately, but for Mr. Desjarlais’ cooperation, Ms. Duperron’s body may never have been found as she had been left to die in a somewhat remote, wooded area.

Her body was left fully exposed to the elements. But for Mr. Desjarlais’ cooperation, RCMP would never have been led to any of the video surveillance footage or cell phone information or business records tying the accused and Mr. Eashappie and Ms. Bajusz to Ms. Duperron’s murder. 10. Did new information emerge for the first time at trial despite many previous statements? [ 186 ] No. 11. Was the witness evasive? [ 187 ] No. 12.

Was the witness testimony inconsistent with external evidence, particularly objective evidence that has been accepted? [ 188 ] Almost entirely, but for the handcuff issue (which has been dealt with above) and the evidence of Jessica Desjarlais (which I have rejected). 13. Did the witness provide prior inconsistent statements? 14. Was the witness internally consistent: did the witness evidence change in testifying? [ 189 ] All counsel and the parties have agreed that Mr. Desjarlais’ testimony was substantially consistent with previous statements. I will deal with inconsistencies below. 15.

Upon the application of common sense, is the witness evidence impossible, improbable, or unlikely? [ 190 ] Subject to my comments above about the handcuffs and my discussion below about inconsistencies, my overall conclusion is,

no. Specific inconsistencies [ 191 ] Where the evidence of one witness is so determinative of most of the issues in a serious criminal trial, it is important that no stone be left unturned in analyzing their evidence. Much of cross-examination focused on inconsistencies. I will deal firstly with Mr. Jordan’s issues. Duffel Bag [ 192 ] Mr. Jordan referenced Mr. Desjarlais testifying on the preliminary inquiry that he did not know when Mr. Underwood’s duffel bag was put into the back of the truck. At trial he said it was in the morning. My view on this is that this inconsistency demonstrates an honest witness.

When asked the question out of the blue about something of little consequence at the time it happened, an understandable answer is “I don’t know”. Later, if given time to think about it, the only time the duffel bag could have been placed in the truck bed was in the morning as they left the house to start driving Ms. Duperron around. That was the first time Mr. Underwood got in the truck, and they did not go back to the house again. [ 193 ] As for whose decision it was to turn around after the first robbery, on a careful review I do not see any clear inconsistency.

The Call [ 194 ] The “call” is one of the key issues in this trial. Mr. Desjarlais was entirely consistent throughout that Mr. Underwood made the “call”. Mr. Desjarlais never wavered from his understanding that the call was “she knew too much, and we need to get rid of her”. He was consistent that he was not certain of the exact words. Much was made that when the subject first came up, Mr. Desjarlais said: A …there was a call that was made that she made too much -or not made- that she knew too much. And we had to get rid of her.” Q Okay. Who made that call? A Buddy. Q Okay.

And—now, you said he made a call, she knew too much, we had to get rid of her. Are those the specific words he used, or is it something to that effect? A Something to those effects. (Day 1 page 41) [ 195 ] In cross-examination on Day 4 at page 16 he said: Q …it might have been Kala who made the statement. A I don’t know. Q Yeah. You don’t know who made the comment, correct? A No. Like I –like I said before, like, the music was turned down, and there’s conversation with Buddy and everybody, right? Q Somebody said it, but we don’t know who said it. A I’m pretty sure it was Buddy that did say it.

Q But there’s some doubt in your mind if it was Buddy, if it was Rex, if it was Kala? A No. It was Buddy. [ 196 ] And at pages 66-67, Mr. Desjarlais confirmed that he was not sure exactly what words were used, that he remembered something along the lines of “knows too much”, but in terms of anything else, any other words that were used, he couldn’t recall. [ 197 ] He was not entirely sure who said that but thought “maybe probably” it was Buddy. He agreed he was not 100 percent sure. [ 198 ] From carefully looking at these exchanges, I do not see any inconsistency, apart perhaps from the degree of certainty.

My conclusion is this was much ado about nothing. Driving out of the city [ 199 ] As for the drive out of the city, any inconsistencies result from taking the answers out of the context of the questions asked. The first time the subject came up, Mr. Desjarlais was asked what happened after the “call” had been made. Mr. Desjarlais responded, “we left Edmonton”. He was asked whose idea that was, and he responded, “I can’t remember.” He said that he got directed a little bit by Mr. Underwood. When asked “where did he direct you to go”, Mr.

Desjarlais responded “we ended up on Stony Plain Road”, going west. [ 200 ] The second time the matter came up Mr. Jordan asked him “whose decision is it to drive west of the city?”. That question followed questions about Mr. Underwood having texted him to warn him of the robbery. Mr. Desjarlais’ answer was “I can’t remember whose decision it was.”

[ 201 ] Then Mr. Desjarlais was asked about driving by Mr. Moreau. He had been asking about the second robbery and Kala and Tyra “mocking” Ms. Duperron in the car as they drove around Edmonton. He was then asked, “at some point there’s a decision made to head out of town, right?”. Mr. Desjarlais responds, yeah. He then says, “that was Buddy’s decision.” Q so did he tell you what the destination was” A No. Q Or did he just say go west? A I can’t remember exactly how we ended up going west. Q Okay. Did he say something like let’s get out of the city? A Probably. … Q But you don’t remember what he said. A No.

Q Okay. In any event, you get yourself on Stony Plain Road heading west, and you go west, right? A Yes. (Day 4, page 63) [ 202 ] Certainly, the first time asked the question Mr. Desjarlais did not recall whose idea it was to leave Edmonton. His answer to Mr. Moreau was different; he identified Mr. Underwood as the person. I suppose it is an inconsistency when someone says, “I don’t remember” and then 3 days later provides Mr. Underwood’s name.

Not remembering something one day and remembering something later, especially after going over the details of a single day for over 3 days by that point, may not be surprising. It might be different if Mr. Desjarlais had been certain about one person driving and 3 days later gave another name. [ 203 ] I conclude that while an inconsistency has been shown, it is of no effect and does not adversely affect either Mr. Desjarlais’ credibility or his reliability. Mr. Underwood Driving to Hinton [ 204 ] Mr. Desjarlais was consistent that at some stage on the trip from Edmonton to Hinton he and Mr.

Underwood switched seats and Mr. Underwood drove for as much as an hour. I agree that it is unclear from Mr. Desjarlais’ testimony when that happened; whether it was before Edson or between Edson and Hinton. [ 205 ] The question cited by Mr. Jordan from Day 2 page 10 was: Q Between Darwell and Edson, did the seating configuration stay the same in your vehicle? A Everything was the same. Q Throughout the entire trip to Hinton? A Buddy and I switched driver’s seats a couple of times. [ 206 ] On Day 2 page 12, Mr.

Desjarlais said seating configuration between Edson and Hinton was still the same. [ 207 ] On another occasion Mr. Desjarlais said he thought Mr. Underwood did some of the driving between Edson and Hinton. He couldn’t remember where they had switched places. And on another occasion his evidence might suggest that the switch took place between Darwell and Edson. We do know from video footage that Mr. Desjarlais was driving when they arrived at the Fas Gas store in Edson. [ 208 ] There is some vagueness about this, other than that Mr. Desjarlais was not challenged about his testimony that he and Mr.

Underwood had switched driver’s seats. Loading the gun [ 209 ] It is clear that Mr. Desjarlais initially said he saw Mr. Underwood load the shotgun. During cross-examination he agreed that he was not sure who loaded it. That is an inconsistency. Feeding/telling Ms. Duperron to eat fentanyl [ 210 ] Mr. Desjarlais’ evidence on this issue changed. He initially testified that both Mr. Underwood and Mr. Eashappie told Ms. Duperron to eat the fentanyl Ms. Bajusz had given them. On cross-examination, Mr. Desjarlais agreed that he was not sure which one had done so.

Reliability [ 211 ] On Ms. Muskego’s behalf, Mr. Moreau adopted Mr. Jordan’s concerns about the inconsistencies in Mr. Desjarlais’ testimony. He added concerns about Mr. Desjarlais’ overall reliability. [ 212 ] It was clear from Mr. Desjarlais’ evidence that from the time he arrived at the house in the early evening of April 6 until after Ms. Duperron was killed, Mr. Desjarlais had consumed a significant amount of methamphetamine. He had also had at least one cooler

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