R v Letourneau, 2023 ABKB 502

Court of King’s Bench of Alberta Citation: R v Letourneau, 2023 ABKB 502 Date: 20230901 Docket: 200976116Q1 Registry: Grande Prairie Between: His Majesty the King Crown - and - Cody Letourneau Accused Corrected judgment: A corrigendum was issued on September 12, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice E.J. Simpson _______________________________________________________ Table of Contents Introduction . 4 Issue . 4

Decision . 4 Facts . 4 Facts Not in Dispute . 4 Law .. 5 Proof Beyond a Reasonable doubt 5 Analysis . 6 Assessing Vetrovec Witnesses . 6 Credibility Assessments of Civilian Witnesses . 7 Simon De Lima . 7 Melissa Healey . 9 Justin Bishop . 11 Krista Healey . 11 Holly Chafe . 12 Katelyn Suik . 12 Opportunity for Collusion . 12 Drug Consumption by Witnesses . 12 Corroboration . 13 Findings of Fact 13 Cell Phone Logs . 13 June 10, 2020 . 13 The Report to Police . 14 June 11, 2020 . 15 The Call to Simon . 15 Speculation . 16 Simon’s Arrival 17 Events at the Clairmont Residence . 18 The Accused’s Statements . 19 Travelling in Holly’s Vehicle . 25 From Mike’s Residence to the Crime Scene . 26 Post-Offence Events . 28 Justin’s Actions . 29 Simon’s Actions . 30 Analysis . 31 Aiding and Abetting . 31 Position of the Parties . 31 Law – Aiding and Abetting . 31 Actus Reus . 32 Abandonment/Alternate Theory . 33

Law- re Abandonment 33 Application of Test for Abandonment 34 Alternate Theory . 34 Abetting . 35 Mens Rea . 37 First-Degree Murder 37 Test 37 Application of the Test 37 Intention Known to the Accused and Steps to Encourage . 38

Summary Re Abetting First-Degree Murder 38 Post-Incident Conduct 38 First-Degree Murder under Section 231(5)(e) 38 Law .. 39 Analysis . 40 Application of the Test 40 Abetting Confinement 41 Second Degree Murder 41 Law .. 41 Analysis . 41 Manslaughter 42 Law .. 42 Analysis . 42

Summary . 42 Introduction [ 1 ] On the morning of June 11, 2020, between 8:05 AM and 8:50 AM, on a roadside, near Woking, Alberta, Simon De Lima (Simon) fired a handgun killing Kyler Commandeur (Kyler). In a different proceeding, Simon pleaded guilty to first-degree murder. [ 2 ] The Crown alleges Cody Letourneau (the Accused), acted as a party to the killing. This decision deals with his trial on a charge of first-degree murder. Issue [ 3 ] Has the Crown proved beyond a reasonable doubt each element of abetting first-degree murder?

The Crown has two pathways to conviction: that the Accused was either a party to first-degree murder or a party to murder in the course of confinement. Decision [ 4 ] On both pathways to first-degree murder, I find that the Crown has proved beyond a reasonable doubt that the Accused acted as a party to the first-degree murder of Kyler Commandeur. Facts Facts Not in Dispute [ 5 ] On June 11, 2020 at 8:50 AM, a civilian called 911 to report a body lying on the side of Highway 677, one mile west of

Highway 2, near the town of Woking Alberta (the scene). The body was that of Kyler. Two emergency medical responders attended thescene. Their efforts to revive Kyler failed and they pronounced him dead at the scene. [6] Investigators found two expended bullet casings on the ground near Kyler’s body. Later, the Medical Examiner recoveredthree bullets: one from within Kyler’s body, and two from between Kyler’s shirt and his body.

An autopsy report determined the cause ofdeath as multiple gunshot wounds. [7] In this trial, Simon testified that he fired the bullets from a handgun into Kyler’s body. [8] Kyler was born December 1, 2000, and was 19 years old at the time of his death. He stood 5’8” tall and weighed 132 pounds.He owned a black 2019 Dodge Ram 1500 pickup truck (the truck). [9] On June 10, 2020, at approximately 6:00 PM, Kyler drove the truck with the Accused as his only passenger, to a residence inClairmont, Alberta, a few miles north of Grande Prairie, Alberta (the Clairmont residence).

Melissa Healey (Melissa), Krista Healey(Krista), each with a son, both under 18 years of age (the Healey boys), occupied the Clairmont residence. [10] When Kyler and the Accused arrived they found Justin Bishop (Justin), Melissa, Krista, and the Healey boys at the residence. [11] Shortly before 11:00 PM, Kyler called his parents to request an extension to his curfew. Kyler told his parents that he was outwith Bailey Colley, which was a lie. Not long after Kyler’s phone call to his parents, Melissa asked to borrow the truck to drive herself,the Accused, Krista, and the Healey boys to a local hotel.

The five planned to stay there for a night or two so the Healey boys could haveaccess to Wi-Fi. Kyler agreed to lend the truck to Melissa. The five left the Clairmont residence in the truck sometime before 11:45 PM.Justin and Kyler remained at the Clairmont residence. [12] Melissa drove the truck to the Grand Inn in Grande Prairie (the hotel), arriving at 11:45 PM.

The five registered into tworooms: Krista and the Healey boys occupied one room, Melissa and the Accused occupied the other. [13] Instead of returning to the Clairmont residence, Melissa, Krista, and the Accused drove the truck to Mike Hillenga’s (Mike)residence in the Mission Heights neighbourhood in Grande Prairie, about a ten-minute drive southeast of the hotel. There they met Mikeand Mike’s girlfriend. All of them consumed illegal drugs. [14] With the passing of time, Kyler became upset that no one had returned his truck.

He made ten unsuccessful calls to theAccused’s cell phone and one successful contact with it. On June 11, 2020 at 1:40 AM, Kyler called 911 to report the truck stolen. Henamed “Cody, Melissa and Crystal” as the persons responsible for taking the truck. [15] On June 11, 2020 at 2:38 AM, cab driver Jafar Abawaji (Jafar), picked up Melissa and the Accused at Mike’s residence andtransported them to the Clairmont residence. Jafar received instructions at the Clairmont residence to return to pick up Melissa.However, Melissa did not come out of the house.

Instead, Justin came out and paid Jafar $40.00 for “wasting his time.” [16] On June 11, 2020 at 2:50 AM, a Prairie Cab taxi driven by Ahmed Salem picked up Simon at a residence at 9632 – 85 Ave inGrande Prairie (the Accused’s residence). The Accused, Katelyn Suik (Katelyn), and Simon lived there. The driver subsequentlydropped off Simon at the Clairmont residence. [17] On June 11, 2020 at 3:38 AM, Jafar picked up Krista at the hotel and took her to the Clairmont residence. [18] On June 11, 2020 at 6:54 PM, surveillance video from the hotel showed Justin driving the truck into the hotel’s undergroundparkade.

On June 11, 2020 at 11:23 PM RCMP Staff Sgt Mark Sloan seized the truck. [19] A search of the truck produced a receipt which led to an investigation at Circle K/Fas Gas in Grande Prairie (Fas Gas). OnJune 11, 2020 at 6:27 AM, surveillance video from Fas Gas captured Holly Chafe (Holly) and Krista inside Fas Gas. At 6:29 AM,surveillance video from Fas Gas captured Justin inside Fas Gas where he purchased a phone card.

Transaction records from Fas Gasmatched the receipt found in the truck. [20] On January 5, 2021, RCMP seized a 9mm caliber SD9 Smith and Wesson handgun (the firearm) during an unrelatedinvestigation in Grande Prairie. A forensic report confirmed that the casings and bullets seized from the scene and Kyler’s body matchedthe firearm. Law Proof Beyond a Reasonable doubt [21] In R v Lifchus, (SCC), [1997] 3 SCR 320, the Court provided guidance with respect to proof beyond areasonable doubt. The reasonable doubt standard is a single, objective, and exacting standard of proof.

It is not the same as proof ofprobability, and it is not like subjective standards of care that we apply in important everyday situations. It is not proof to an absolutecertainty. It is not proof beyond any doubt or an imaginary or frivolous doubt. It is based on reason and common sense, not on sympathyor prejudice. [22] Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R v Starr2000 SCC 40 at para 242. Analysis

Assessing Vetrovec Witnesses [23] A Vetrovec witness is one with a disreputable and untrustworthy background, and can include an accomplice, or a witness ofdemonstrated moral lack: R v Vetrovec, (SCC), [1982] 1 SCR 811 at 821 – 832. In R v Lawrence, 2020 ABCA 268[Lawrence], at para 26 (citing R v Vallee, 2018 BCSC 892 at para 161), the Court laid out a number of non-exclusive characteristicswhen evaluating a Vetrovec witness: 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? [24] If a witness falls within the disreputable and untrustworthy category, the trier of fact should view the testimony of such awitness with great caution and look for other supporting evidence or corroboration before convicting on the evidence of the disreputableand untrustworthy witness alone: Lawrence at para 28. [25] In R v AKB, 2022 ABCA 170 at para 15, the Court cited Lawrence when discussing the need to find the necessaryconfirmatory evidence.

One Vetrovec witness can confirm the evidence of another: Lawrence at para 31; R v Mela, 2021 ABCA 38[Mela] at paras 36 – 37. The evidence of other Vetrovec witnesses may be supportive of each other even if the witnesses are inconsistentor contradictory: Mela at para 34. A trier of fact can make a factual finding on whether evidence from a Vetrovec witness is actuallyconfirmatory.

What is said to be confirmatory evidence for a Vetrovec witness must be capable of restoring faith in the credibility of thatwitness on material facts even if the confirmatory evidence does not itself directly confirm those material facts. Restoration of faith in thecredibility of a Vetrovec witness does not mean that the evidence of the Vetrovec witness is accurate or reliable in its own right: Mela atpara 36. [26] To summarize, a trier of fact must consider the following when assessing Vetrovec witnesses: 1.

A trier of fact must be alert to the danger of relying on the unsupported evidence of Vetrovec witnesses and be able to identifyevidence capable of enhancing the trustworthiness of such witnesses (Lawrence at para 29); 2. In some circumstances, a trier of fact can accept a Vetrovec witness without confirmatory evidence (Lawrence at para 30); 3. One Vetrovec witness can confirm the evidence of another if it is accepted (Lawrence at para 31); 4.

Extreme caution must be taken when there is evidence of collusion between Vetrovec witnesses, but the risk of collusion does notin and of itself exclude the evidence (Lawrence at para 32); 5. A trier of fact should look to independent evidence to confirm the evidence of Vetrovec witnesses (Lawrence at para 33). [27] Simon, Justin, and Melissa have all been criminally convicted with respect to Kyler’s death. I consider each of them aVetrovec witness. [28] The police charged Krista as an accessory after the fact to Kyler’s murder. The Crown eventually stayed that charge.

Due toKrista’s involvement as a drug dealer and her close relationship with Justin, I am very cautious with respect to her evidence. [29] Holly faced no criminal charges relating to Kyler’s death. However, because of her close association with Krista, I approachher evidence with some caution. Nevertheless, I consider her generally credible.

Credibility Assessments of Civilian Witnesses Simon De Lima [ 30 ] Simon gave his evidence in French through an interpreter. He struggled with his viva voce evidence and appeared to have difficulty reading statements provided to him in French. To overcome the possible reading problem, the interpreter read portions of documents to him. [ 31 ] Notwithstanding those problems, I noted that Simon provided explanations, which indicated his grasp of the questions asked of him.

For example, when shown photographs of the truck and a red gas container, he made it clear that he could not be certain as to the identity of those items. This was a reasonable explanation because the photographs provided no identifying marks on either item. He also corrected the suggestion that he had been in Grande Prairie for only three months before the killing. He considered it six months. He noted an error in a name during cross-examination when he explained that “Justin” could not kill “Bishop” because the names referred to the same person.

He clarified in cross-examination he may have, on June 11, 2020, received a text on his phone, but he did not see any texts because he had lost his phone. At no time did Simon present any indication of evasiveness in answering questions from either Crown or Defence counsel. Simon accepted his

part in Kyler’s killing without justification beyond saying that if he had not been taking methamphetamine, he thought he would not have killed Kyler. [ 32 ] Simon’s evidence does have internal and external contradictions and inconsistencies which I will deal with, as necessary, when weighing his evidence on the ultimate question of the Accused’s involvement in Kyler’s death. [ 33 ] Turning to the specific Vetrovec factors, I assess them as follows: [ 34 ] Regarding a motive to lie or mislead the Court, Defence counsel has suggested that Simon only admitted his involvement during his police interview in November 2020 after hearing that everyone had pointed at him.

Defence counsel argues Simon had a motive to tell police and testify at this trial as to the Accused’s involvement to lower his own moral blameworthiness. Simon could explain his involvement by laying the blame for it on the Accused. I cannot exclude this possibility even though Simon has accepted responsibility for his role in Kyler’s death. [ 35 ] Defence counsel suggested that Simon might receive a benefit for testifying because at the time he testified, he had pleaded guilty to Kyler’s murder but had not yet been sentenced. There is no evidence to support that suggestion.

The Court record indicates that Simon has now received the mandatory life sentence for first-degree murder. [ 36 ] Simon has a significant criminal record. His record includes several convictions for breaches of court orders and failures to attend court that show a disrespect for the administration of justice. It also includes convictions for crimes of dishonesty. [ 37 ] Simon admits he lied to the police during the first half of his police interview in November of 2020. During his viva voce evidence, Simon acknowledged that during the interview, police made him aware others were blaming him for Kyler’s killing.

At that point, Simon provided police with the information regarding his involvement with Kyler’s killing. [ 38 ] Simon could not communicate with any other person except the Accused. Simon only spoke French and only communicated with the Accused in French. The Accused spoke both French and English. None of the other people involved spoke French. Therefore, none of the other people involved could have understood what the Accused said to Simon.

Since none of the other people involved had a sufficient grasp of the French language to know what the Accused said to Simon, Simon could have fabricated the things he said the Accused told him. [ 39 ] Simon had access to disclosure with respect to Kyler’s killing. No one has suggested that Simon had any other special information that would taint his viva voce evidence. [ 40 ] Simon did not minimize his own wrongdoing.

Indeed, he has taken the unusual step of pleading guilty to first-degree murder, the most serious charge in the Criminal Code . [ 41 ] Simon did not exhibit a selective memory and did not appear unreliable. However, he did acknowledge he exaggerated the Accused’s involvement when he spoke to police and when he testified in this trial. [ 42 ] Simon provided some information for the first time in his viva voce evidence. That new information related to when Simon saw Kyler’s hands taped and that the Accused told Simon not to get involved.

With respect to the tape around Kyler’s hands, the new information related to specific details rather than to the general allegation that while the parties were at the Clairmont residence, someone taped Kyler’s hands. With respect to the Accused telling Simon not to get involved, Defence counsel argues this evidence shows the Accused intended to abandon any intention of the Accused involving himself in bringing any sort of harm to Kyler.

Simon could have withheld this information from the police to lower his responsibility while increasing that of the Accused. [ 43 ] Simon’s testimony is generally consistent with the other evidence in the trial.

In particular, it is consistent with the autopsy report which supports a death caused by gunshot wounds and Justin’s description of the shooting. [ 44 ] Simon’s overall description of his time at the Clairmont residence, his travel to the truck, the travel of the three men in the truck, the killing, the meeting with Krista and Holly, the return to the hotel, and shopping at the Winners store all fits with the other evidence in the trial. [ 45 ] As a matter of common sense, Simon’s evidence is not impossible, improbable, or unlikely. [ 46 ] I do take into account that Simon acknowledged that he exaggerated the Accused’s involvement when Simon spoke to police and when Simon testified in this trial.

I recognize that Simon has provided some inconsistent evidence.

[ 47 ] Considering Simon’s status as a Vetrovec witness I consider it is necessary to test his evidence against all the evidence at the trial, in order to assess Simon’s allegations regarding the Accused’s involvement in Kyler’s death. Melissa Healey [ 48 ] Melissa provided a chronology of events consistent with other witnesses.

She and other witnesses gave the same sequence of locations, starting at the Clairmont residence, to the hotel, to Mike’s residence where a call was received from the Clairmont residence advising that Kyler had reported to police that his truck was stolen, a return to the Clairmont residence, a second trip to the hotel, and a trip to the Winners store after the killing. [ 49 ] Melissa displayed a selective memory.

For example, she could recall Krista returning to the Clairmont residence eating a creamsicle but could not recall whether she had a conversation with Justin or Krista on the morning of June 11, 2020 about picking up Simon after the killing. That conversation would be more memorable than seeing Krista eating a creamsicle. Either Melissa did or did not have that conversation. Claiming no recall is both selective and evasive. [ 50 ] In this trial, Melissa testified that during her trial in April 2022, she was on heroin, which affected her recall.

However, during her trial in April 2022, she said she had not been on heroin. In this trial, she explained this discrepancy: during her trial she was not on heroin but overdosing on Suboxone which she used to withdraw from heroin. She testified Suboxone affected her like heroin. [ 51 ] Melissa also gave evidence which defied common sense. She testified that after she released Kyler and organized for the Accused to leave the house with her, she and the Accused had normal conversations. This makes no sense. A person bound with tape in the bathroom of her home created an unusual and dramatic event.

Melissa testified she wanted the Accused away from the house because Kyler seemed to be in some danger. These matters would certainly be the subject of other than normal conversation between them. [ 52 ] Melissa had a motive to mislead the Court because she needed to maintain consistency with the evidence she gave in her own trial.

Melissa could not testify otherwise, or she might face possible consequences for providing false testimony in either this trial or her own trial. [ 53 ] There is no evidence Melissa received any benefit for testifying so as to raise a risk of her lying with respect to the Accused’s involvement. There is also no evidence that Melissa has a long criminal history. Melissa acknowledged trying to deal in drugs but said she did not make for a good drug dealer.

Simon testified he had previously driven with Melissa in Katelyn’s vehicle to sell drugs, but no evidence supports a conclusion that Melissa sold drugs routinely like Krista and the Accused. [ 54 ] Melissa has knowledge of the circumstances such that it would be easy for her to falsely implicate the Accused. Melissa has knowledge with respect to the events at the Clairmont residence when someone tied Kyler with tape.

Although possible that Melissa used her own disclosure to create her version of events, nothing in the evidence points to her access to the disclosure or other information as helping her tailor her testimony for this trial. [ 55 ] Melissa minimized her own wrongdoing in that she held herself out as the one to stop Kyler’s confinement, notwithstanding she has been convicted in relation to his confinement. [ 56 ] Melissa could not be expected to have a memory of all details of prior events. However, within her evidence, she provided internally inconsistent evidence.

She initially testified she had met the Accused though Krista, she had hung out with the Accused and gone to his house a couple of times, but she did not know the Accused well. Later, she testified that she had known the Accused for about a year, she considered him a good friend. She knew him well enough to share a room with him at the hotel. [ 57 ] Melissa attempted to mislead the Court during her testimony. She testified that just after Simon arrived in a cab, she and the Accused left in the same cab within about five to 10 minutes. That could not have happened.

Melissa and the Accused returned to the Clairmont residence just after 3:00 AM. Simon arrived about 10 minutes later. Melissa and the Accused left in a cab at approximately the same time that Holly left in her car with the four other people, around 6:00 AM. Melissa could not mistake five to 10 minutes for nearly 3 hours. Nor could she and the Accused leave in the same cab that brought Simon.

I find this to be a deliberate attempt on Melissa’s part to allow a minimum amount of time for the Accused, her friend, to have a chance to communicate with Simon regarding Kyler. [ 58 ] Overall, I treat Melissa’s evidence with great caution. Unless otherwise noted, I will accept her evidence only when corroborated by other reliable evidence. Justin Bishop [ 59 ] Justin’s viva voce evidence during this trial I consider almost worthless. Justin has virtually no credibility with respect to what he said while on the stand.

His refusal to answer questions claiming lack of memory forced the Crown to proceed with applications pursuant to s 9(2) of the Canada Evidence Act and R v Bradshaw , 2017 SCC 35 , to have one of Justin’s police interviews from September 2020 (Justin’s police statement) entered for the truth of its contents. [ 60 ] While I found his police statement to be admissible for the truth of its contents, I cannot, unless otherwise noted, rely on it without corroborating evidence. In June 2020, Justin told police that he could not lie to them and then went about lying to them in great detail.

In Justin’s police statement, Justin made similar claims about being a poor liar. I am therefore very cautious as to other lies that Justin may have told police in his police statement. [ 61 ] Unless forced into a position while testifying, where he had no choice, Justin made every effort to avoid implicating the Accused in the killing. He appeared to have an unexplained motive to mislead the Court. [ 62 ] On the evidence, Justin received no benefit for testifying nor does he have a significant criminal history.

[ 63 ] Justin is an accomplice with knowledge of the circumstances. He has pleaded guilty to manslaughter with respect to Kyler’s death. He did not hesitate to implicate Simon as the person who shot Kyler to death, although he had no choice. Simon, the passenger in the truck that Justin drove, pleaded guilty to first-degree murder. The expert evidence from the autopsy and with respect to the bullets all align with Simon’s evidence. [ 64 ] Accordingly, unless otherwise noted, I will only place weight on Justin’s evidence when corroborated by other evidence.

Krista Healey [ 65 ] In addition to my earlier comments regarding my concern with Krista’s credibility, I add these. [ 66 ] During the trial, I issued a witness warrant for Krista. The Crown led evidence which showed Krista avoiding service of the subpoena upon her. Upon arrest, Krista appeared before me and thereafter complied with my directions with respect to her further court attendance. [ 67 ] As with any witness, I do not expect Krista to remember times and all details regarding communications that occurred nearly three years prior to her testifying about picking up Simon after the killing.

Eventually Krista acknowledged that the substance of the communications with Melissa and the Accused on the morning of June 11, 2020 involved a request from the Accused that he wanted Krista to pick up a friend. [ 68 ] At times I found Krista’s answers evasive. For example, Defence counsel put to her a telephone record showing a conversation of 4 minutes and 16 seconds between her phone and Justin’s phone.

Defence counsel suggested this was “a fairly lengthy conversation with Justin.” She would only acknowledge “it could have been.” [ 69 ] The relationship between Krista and Melissa also raises concerns for me with respect to Krista’s evidence. Based on Krista’s testimony, Krista has a low opinion of her sister. They obviously have a poor relationship. [ 70 ] Overall, Krista provided evidence fitting the chronology of events not in dispute in this trial. However, for the reasons noted, I approach her evidence with caution. Holly Chafe [ 71 ] During the trial, I also issued a witness warrant for Holly.

The Crown led evidence that Holly refused to come to Court to testify in response to her subpoena. Upon arrest, Holly appeared before me and presented as noticeably distraught. She said she had received threats relating to her safety and the safety of her child if she testified. Despite these threats, Holly told me that she would testify and agreed to stay in touch with a police officer regarding her availability and safety.

When she appeared some days later, she impressed me with newly found confidence and a willingness to provide her evidence in a forthright manner. [ 72 ] Holly gave some evidence inconsistent with her previous statements. These inconsistencies involved more detailed memories about the Accused’s involvement than in her police interviews. She explained her evidence at trial involved some assumptions on her part. [ 73 ] I remain concerned because of Holly’s role as Krista’s driver for drug deals.

Nevertheless, I consider Holly to be the most credible and reliable of all the witnesses involved with Kyler on June 10 and 11, 2020. Katelyn Suik [ 74 ] Counsel did not raise any issues with respect to Katelyn’s credibility or reliability. Katelyn had some understandable lack of recall with respect to the details surrounding the phone call she received from the Accused in the early morning hours of June 11, 2020. She appropriately acknowledged her lack of memory. I found her testimony straight-forward. Nothing in her evidence showed any lack of credibility.

Unless otherwise noted I find Katelyn to be both credible and reliable. Opportunity for Collusion [ 75 ] Defence counsel raised the possibility of collusion amongst the civilian witnesses with the exception of Katelyn. Considering the various relationships between the witnesses, they could have discussed and organized a version of events to escape responsibility for themselves or another witness. [ 76 ] Justin admitted speaking with Krista, which I would expect considering their relationship. His police statement displayed an obvious attempt to avoid implicating Krista.

Krista and Holly, close friends, could have discussed the matter. Melissa and the Accused had significant time after the event to organize a version of events. Before Simon left Grande Prairie, he had a few days to discuss matters with the Accused, the only person with whom he could easily communicate.

No evidence suggests that Simon had an opportunity to collude with anyone after his arrest in Saskatchewan a few days after the killing. [ 77 ] The possibility of collusion along with the Vetrovec nature of the witnesses, means looking for corroborating evidence on any fact that implicates the Accused in Kyler’s death. Drug Consumption by Witnesses [ 78 ] The Accused, Melissa, Justin, Simon, and Krista all used drugs at the relevant times. The drug use could have affected their perception and memory. Their drug use compounds the need for corroborating evidence on any fact incriminating the Accused.

Corroboration [ 79 ] With the exception of Katelyn’s evidence, the evidence of the remaining civilian witnesses requires, unless otherwise noted, corroboration. This requirement arises because of the Vetrovec nature of the witnesses, the inconsistencies and contradictions within the evidence of the witnesses, the possibility of collusion and the possibility of perceptions and memories altered by the consumption of drugs. [ 80 ] The need for corroboration becomes particularly important with respect to the events that occurred on June 11, 2020 after 2:38 AM.

At that time, Melissa and the Accused entered a cab to return to the Clairmont residence. At approximately the same time, the Accused called Katelyn for the purpose of speaking to Simon. The Crown alleges that this phone call set in motion a series of events leading to Kyler’s death for which the Accused bears responsibility as a party. Findings of Fact Cell Phone Logs [ 81 ] A number of cell phone logs became evidence in this trial. Separate logs appear for a phone making the call and the phone receiving the call. The times on the two separate logs may differ by a few seconds.

June 10, 2020 [ 82 ] As of June 10, 2020, the Accused had lived with Katelyn, his girlfriend, for approximately one year. She thought they moved in together in late 2018 or 2019. Katelyn testified that she and the Accused often quarreled. [ 83 ] Holly knew the Accused and Melissa often spent time together. She thought of the two of them as “an item.” I accept the Accused and Melissa spent time together as close friends but were not in a relationship in early June 2020. [ 84 ] On June 10, 2020 after the Accused and Kyler arrived at the Clairmont residence, nothing out of the ordinary occurred.

Melissa described some travel with Kyler to shop for groceries and ice cream. Justin smoked meth, an almost daily event for him. [ 85 ] As the evening progressed, Kyler contacted his parents about extending his curfew. Some of the witnesses testified they understood Kyler had a curfew, but no one knew the details. Krista testified she thought Kyler asked to extend the curfew to 11:30 PM. No one else testified as to how long Kyler requested or whether he received an extension. [ 86 ] Melissa and Krista both testified they planned to spend a night at the hotel so the Healey boys could have access to Wi-Fi.

Melissa, Krista, the Accused, and the Healey boys used Kyler’s truck to drive to the hotel. The Agreed Statement of Facts states Melissa borrowed the truck from Kyler. Melissa first testified the Accused borrowed the truck. Later she said she borrowed the truck from Kyler. I accept Melissa asked Kyler to borrow the truck. [ 87 ] Melissa testified she expected she would need the truck for an hour or two, but she did not tell this to Kyler.

I have no evidence with respect to an agreement between Kyler and Melissa as to when she would return the truck. [ 88 ] No one explained why the five did not simply take a cab to and remain at the hotel. It appears Melissa, Krista, and the Accused had no intention of initially spending much time at the hotel. After checking into the hotel, they left the Healey boys there and used the truck to go to Mike’s residence to visit and consume illegal drugs.

Based on what occurred, I infer that Melissa and Krista planned to leave the Healey boys at the hotel without supervision so that Melissa and Krista could carry on with other activities. [ 89 ] The three adults left the hotel in the truck. Krista testified she expected the Accused and Melissa to drop her off at Mike’s residence then return the truck. I accept Krista’s evidence on this point. Melissa had borrowed the truck. It makes sense Melissa would return it. [ 90 ] Instead Melissa and the Accused also went into Mike’s residence.

Some consumption of illegal drugs occurred at Mike’s residence, but I cannot make a finding of fact as to the amount consumed by any individual or the effect that those consumed drugs had on any of the witnesses. [ 91 ] Melissa has a memory of Holly joining them at Mike’s residence. I do not accept this as a fact. It does not fit with either Krista’s or Holly’s evidence. The Report to Police [ 92 ] With the passage of time, Kyler became concerned because Melissa had not returned his truck to him. On June 11, 2020 at 1:40 AM, Kyler reported to the police the truck as stolen.

Melissa and the Accused learned of the report while at Mike’s residence. In Justin’s police statement, Justin said he spoke with the Accused on the phone about Kyler’s report to police. Krista thought the information came by text messages to Melissa and the Accused. [ 93 ] I find that on June 11, 2020 between 1:36:51 AM and 1:44:10 AM Justin told the Accused in a telephone conversation Kyler had reported to the police the truck had been stolen. [ 94 ] In Justin’s police statement, Justin said he and the Accused spoke by telephone on the morning of June 11, 2020.

He explained the circumstances surrounding the discussion (pp 60 – 63). Justin said the Accused called him. Justin told the Accused that Kyler said he would call the truck in as stolen. While still on the call with the Accused, Justin asked Kyler if he had made the report. Kyler confirmed

he had. The Accused told Justin to take the phone from Kyler, but Justin refused. After Justin ended the conversation with the Accused, Justin heard Kyler talking to the police, giving them the Clairmont residence address. Justin asked Kyler if he was on the phone with the cops and had given them “this address.” Kyler confirmed he had. Justin then demanded that Kyler call back and provide a different address, which Kyler did.

Justin demanded that Kyler turn his phone over to Justin, which Kyler did. [ 95 ] The telephone records confirm a 7 minute and 19 second call from Melissa’s phone to Justin’s phone at 1:36:51 AM that ended at 1:44:10 AM. That time period overlaps with the time that Kyler called police (1:40 AM). During that time period, only Justin could use Justin’s phone since Kyler was using Kyler’s phone to call police. However, the Accused could speak to Justin on Melissa’s phone since the Accused and Melissa remained together at Mike’s residence.

Considering the overlap of the Melissa/Justin call and the Kyler/police call, I find that the Accused did speak to Justin on Melissa’s phone. The timing of the calls provides an opportunity for Justin to tell the Accused of Kyler’s stolen truck report and for the Accused to tell Justin to have the discussion as described in Justin’s police statement. This provides some corroboration for Justin’s police statement.

If Justin’s account of the overlapping telephone calls is correct, Kyler’s call to police continued after Justin and the Accused ended their conversation. [ 96 ] Regardless of the precise order of the events, I find that on June 11, 2020, shortly after 1:40 AM, the Accused had information from Justin that Kyler had reported to police that someone had stolen the truck. I also accept that Melissa knew of Kyler’s report to police. I accept Melissa’s evidence that the information upset the Accused.

I accept her evidence because the Accused, a drug dealer, wanted no police involvement in his life. [ 97 ] I also find that during the Melissa/Justin call, the Accused told Justin to take Kyler’s phone from Kyler. That request from the Accused makes sense to prevent Kyler from making any further calls that would cause problems for the Accused. [ 98 ] Despite becoming aware of Kyler’s report to police at about 1:40 AM, Melissa and the Accused did not leave Mike’s residence in a cab until 2:38 AM. Melissa explained they took a cab because she did not want police to find her in a truck reported stolen.

I accept Melissa’s explanation because it makes sense. She had left her minor son at the hotel. She could therefore not risk an arrest. An arrest might cause Child and Family Services to become involved if it came to their attention she had left her minor son at the hotel without adult supervision. June 11, 2020 [ 99 ] On June 11, 2020, at 2:38 AM, Jafar drove his cab to Mike’s residence, picked up Melissa and the Accused, then drove them to the Clairmont residence.

Based on Exhibit 10 and expecting light traffic at that time of day, I find as a fact Melissa and the Accused arrived at the Clairmont residence between approximately 3:00 and 3:05 AM. Krista did not accompany Melissa and the Accused. Rather, Krista went to a friend’s house, then took a cab to the Clairmont residence from the hotel. Krista testified that she arrived between 5:30 and 6:00 AM. The Agreed Statement of Facts describes Krista taking this cab at 3:38 AM from the hotel.

This places her arrival at the Clairmont residence between approximately 4:00 and 4:05 AM, much earlier than she testified and before Holly arrived. The Call to Simon [ 100 ] The Crown submits the first indication of a plan by the Accused to kill Kyler began with the call from the Accused to Simon via Katelyn, which occurred on June 11, 2020 sometime before 2:50 AM. [ 101 ] Katelyn testified the Accused called her and asked her to awaken Simon so the Accused could speak with him. Katelyn woke him, handed Simon the phone, and saw him speak on the phone.

I find that Simon only spoke to the Accused and no other person during that phone call. [ 102 ] Melissa testified she could not speak French but sometimes used a translator application to communicate with Simon. Other witnesses thought Melissa had some French language ability. On the whole of the evidence, I find Simon communicated almost exclusively with the Accused, and they spoke to one another in French. [ 103 ] Simon testified he lost his phone shortly before the June 11, 2020 call from the Accused. I accept his evidence on this point because the Accused called Katelyn to speak to Simon.

Moreover, during the drive in the truck before Kyler’s killing, Simon did not have his own phone. During that drive, he spoke to the Accused on Justin’s phone. This evidence is consistent between Justin and Simon. [ 104 ] At 2:50 AM, Simon left Katelyn’s residence in a cab which took him to the Clairmont residence. I find Simon came to the Clairmont residence at the Accused’s request. Simon left in the cab twelve minutes after Jafar picked up Melissa and the Accused at Mike’s residence. No evidence points to any delay from the time Simon spoke to the Accused until Simon entered the cab.

Allowing time for a conversation between Simon and the Accused, Simon to dress, a call for a cab, and the cab to arrive, I find that the Accused called him at approximately 2:38 AM, about the time the Accused and Melissa left Mike’s residence. Based on the distance and driving time from the Accused’s residence to the Clairmont residence (Ex 10), I find Simon arrived at the Clairmont residence between 3:10 and 3:15 AM. [ 105 ] When the Accused spoke to Simon, the Accused knew only that Kyler had reported the truck stolen to police. I find the information upset the Accused and he called Simon.

Simon testified that during the call, the Accused told Simon that “we” had an issue with “Junior,” a name the Accused used to refer to Kyler, Kyler was a rat because he had called the police, and “we” had to take care of that. [ 106 ] I accept Simon’s evidence on the content of the call. It is supported by the evidence of Melissa who noted the Accused visibly upset when told about Kyler’s report to the police, he told Justin to take Kyler’s phone, and called Simon within an hour of receiving the information.

It makes sense that the Accused would use the word “we.” The Accused, Simon, and Kyler were all involved in the Accused’s drug enterprise. Police involvement might cause a problem for both the Accused and Simon. [ 107 ] Melissa also confirmed this call. Melissa assumed that the Accused spoke with Simon because Simon was the only person the

Accused communicated with in French other than the Accused’s mother. Based on the evidence of Simon and Katelyn about this call, I accept Melissa heard the Accused call Simon and not the Accused’s mother. Melissa thought he placed the call about 20 minutes before Simon arrived. I find Melissa incorrect with respect to her time estimate. Based on my previous findings the call occurred closer to 35 minutes before Simon arrived. Speculation [ 108 ] Defence counsel drew my attention to an attempted call between the phones of the Accused and Simon at 1:32:12 AM, which appears to have gone unanswered.

Defence counsel submits that at this time, the Accused could not have known about Kyler’s report to police, which occurred at 1:40 AM. I agree. [ 109 ] Defence counsel argues what the Accused intended to speak to Simon about at 1:32 AM could be the same as what he spoke to Simon about later when he called Simon by way of Katelyn’s phone. Defence counsel submits that I can then infer that the Accused did not say the words alleged by Simon about Kyler being a rat and “we” had to take care of a problem. I disagree. The evidence does not support the inference which Defence counsel asks me to draw.

To do so would be to speculate, which creates a risk of conclusions unsupported by the evidence. [ 110 ] The telephone records show a call between Kyler’s phone and the Accused’s phone at 1:22:58 AM that lasted 49 seconds. The parties agree that Kyler and the Accused spoke during that call. Accepting Defence counsel’s reasoning, I could infer that during that call, Kyler told the Accused that he intended to report the truck as stolen to police. About ten minutes later, the Accused placed a call to Simon’s phone.

I could infer that the Accused intended to discuss with Simon the need to deal with Kyler when the Accused placed that phone call because Kyler had told him he intended to report the truck stolen. Both inferences involve speculation not based on the evidence. [ 111 ] Defence counsel argued the same speculative reasoning with respect to other phone calls. Defence counsel also urges an inference with respect to a pattern of communications between the phones of Krista, Melissa, and the Accused.

Communications from Krista’s phone to Melissa’s occur from 2:26:01 to 2:42:36 and include 3 SMS communications and one unanswered call. At 2:43:36, Krista’s phone calls the Accused’s phone for 1 minute, 34 seconds. A similar pattern occurs at 3:21:45. Defence counsel argues an inference that these communications show a pattern of Krista trying to unsuccessfully contact Melissa’s phone, then, knowing that Melissa is with the Accused, using the Accused’s phone to contact Melissa.

Defence counsel argues a further inference that the final call is not Krista communicating with the Accused, but Krista communicating with Melissa through the Accused’s phone. [ 112 ] A similar pattern can be found between Melissa’s phone and Krista’s phone between 6:45:21 and 6:54:47. In that instance, Melissa’s phone attempts to call or message Krista’s phone. After two successful SMS messages sent from Melissa’s phone to Krista’s phone, Krista’s phone calls the Accused’s phone for 54 seconds.

Defence counsel argues the inference that this final call was Krista communicating with Melissa through the Accused’s phone. Based on this pattern, Defence counsel argues an inference Melissa can be contacted through the Accused’s phone.

Defence counsel extends the inference to a call at 7:00:14 between Justin’s phone and the Accused’s phone, suggesting the call is communication between Melissa and Justin rather than Justin and the Accused. [ 113 ] Defence counsel argues these inferences support his argument that Melissa, Krista, and Justin were all parties to a “range roading,” with Simon along for the ride, ignorant about what’s in the mind of the others and making his own decisions about what should happen. With respect, these inferences require an enormous amount of speculation not based on the evidence.

There is no evidence that Melissa spoke to Justin during the drive before the killing. No one put this theory to Melissa, Krista, or Justin during the trial. [ 114 ] Simon testified he heard a woman’s voice on Justin’s phone after the killing. Simon described the woman’s voice as a loud voice. The voice could have belonged to Krista speaking angrily to Justin with respect to her efforts to find him, an equally speculative inference. Simon’s Arrival [ 115 ] Based on the cab records, Melissa and the Accused returned to the Clairmont residence shortly after 3:00 AM.

Both Justin and Melissa testified that Simon arrived at the Clairmont residence after Melissa and the Accused returned. Simon testified Melissa and the Accused were at the Clairmont residence when Simon arrived. I accept his evidence because he arrived closer to 3:15 AM. [ 116 ] Simon also testified that Krista and Justin both arrived at the Clairmont residence after he arrived. I find Simon is wrong with respect to Justin. Justin and Kyler did not leave the Clairmont residence before Simon arrived. Simon’s evidence with respect to Krista is correct.

Krista arrived at the Clairmont residence shortly after 4:00 AM. [ 117 ] Holly testified she thought she arrived at the Clairmont residence at approximately 5:30 AM and stayed not more than one-half hour. Video evidence shows her inside the Fas Gas at 6:27 AM. Allowing for driving time from the Clairmont residence to Fas Gas, she would have to leave the Clairmont residence by approximately 6:00 AM. Therefore, I find that Holly arrived at the Clairmont residence shortly after 5:30 AM.

Events at the Clairmont Residence [ 118 ] On the evidence, it is difficult to ascertain the order and timing of the events at the Clairmont residence. [ 119 ] Simon, Justin, Melissa, and Krista all testified someone taped Kyler’s hands. Justin told police the Accused prevented Kyler from leaving the Clairmont residence, that he saw Melissa taping Kyler’s hands, and Kyler had tape on his mouth. Melissa denied doing the taping. Simon testified someone taped Kyler’s hands. Krista testified she saw Kyler removing tape from his wrists.

None of the witnesses specifically implicated the Accused as the one who taped Kyler’s hands. Justin and Melissa both place the Accused in the

bathroom with Kyler while Kyler had tape on him. [ 120 ] I find the Accused prevented Kyler from leaving the Clairmont residence and then someone taped Kyler’s hands. The Accused had asked Simon to come to the Clairmont residence to deal with Kyler’s report to police. It makes sense that the Accused would then prevent Kyler from leaving. Based on the evidence as a whole, I am only able to find that someone taped Kyler’s hands and he remained taped while in the bathroom with the Accused and Melissa. [ 121 ] Justin and Simon both describe the Accused striking Kyler before the taping of his hands.

Justin described a slap whereas Simon described a punch. I therefore find that the Accused struck Kyler after Simon arrived but before Kyler’s hands were taped. [ 122 ] At the Clairmont residence Holly noticed Kyler, Justin, and Krista talking in Krista’s room. Justin confirms this happened after the tape had been removed and before Holly arrived. Holly did not see any restraint by way of tape or otherwise on Kyler at that time. [ 123 ] Kyler’s phone was taken and examined using a computer. Justin told police the Accused took Kyler’s phone and Melissa examined it. Melissa denied examining the phone.

Simon and Holly testified that Melissa examined Kyler’s phone using a computer while the Accused watched. This occurred in Melissa’s bedroom. I cannot on the evidence find as a fact how Melissa obtained the phone. [ 124 ] Therefore I find that before Holly arrived, Melissa connected Kyler’s phone to the computer. Melissa and the Accused then examined the contents of the phone.

The examination continued for some time after Holly arrived and ended before everyone left the Clairmont residence at approximately 6:00 AM. [ 125 ] As to when the examination of the phone began, I am only able to find it occurred after the Accused and Melissa returned to the Clairmont residence. [ 126 ] Melissa and the Accused saw pictures (the pictures) in the contents of Kyler’s phone. No evidence suggests that anyone other than Melissa and the Accused saw the pictures. Holly testified she did not see the contents of the phone.

Holly heard Melissa say “snitches get stitches” or something to that effect, but the Accused only sat on the bed and did not comment on the contents of the phone. I accept Holly’s evidence on these points. Simon testified he saw the Accused checking Kyler’s phone and knew that because the Accused showed Simon the phone. Simon also testified he saw Justin looking at the pictures but did not know if Justin saw anything else on the phone. In Justin’s police statement, Justin said he did not see the pictures.

Rather, the Accused told Justin that he found the pictures on Kyler’s phone which depicted dope, people, the Accused with other drug dealers and the Accused talking to people from whom the Accused acquired drugs. [ 127 ] During cross-examination, Justin admitted that in another statement to police taken about 12 hours after Justin’s police statement, he told police that he saw the Accused looking through the pictures. Justin explained he “must’ve been lying” when he said this to police. Defence counsel argues this is an inconsistency in Justin’s evidence. I disagree.

Justin could have seen the Accused looking through the pictures. Since Justin did not see the pictures, the Accused could have then told Justin what the pictures depicted. Due to Justin’s general lack of credibility with respect to his viva voce evidence, I discount Justin’s evidence that he lied to the police about this point. [ 128 ] I therefore find only Melissa and the Accused examined the contents of Kyler’s phone and the Accused described to Justin what the pictures depicted. [ 129 ] I have no issue finding that at the Clairmont residence, Simon openly displayed a handgun.

Justin saw the handgun and Simon testified to taking the handgun out of his backpack and loading it. No evidence points to the Accused seeing the handgun at the Clairmont residence. The Accused’s Statements [ 130 ] Justin in his police statement and Simon both gave evidence about statements the Accused made at the Clairmont residence with respect to dealing with Kyler (the Accused’s statements).

The Accused’s statements as described by Justin and Simon have importance both to the Crown’s allegation of the Accused acting as a party by abetting Kyler’s murder as committed by Simon, the Defence theories of abandonment and a reasonable alternate explanation. [ 131 ] The Crown argues the Accused’s statements provide credible and reliable evidence. The Defence argues they do neither. Defence submits that if I find some of the Accused’s statements as true and incriminating the Accused then I should also find as true that the Accused told Simon not to become involved.

The Defence relies on that particular portion of the Accused’s statements as an indication of abandonment by the Accused. [ 132 ] The proof of whether the Accused made an incriminating statement requires proof on a balance of probabilities. [ 133 ] In Justin’s police statement, he said: And then Cody and Melissa showed up, and ah, and came in there and I could hear ah, Cody freaking out because he called the truck in stolen whatever, and ah, he was just pushing him around or whatever and like, you know, I like you know, Kyler’s like [unintelligible] like you know, this and that. [ 134 ] This describes the Accused’s reaction to Kyler’s report to police of the stolen truck.

Melissa also describes the Accused as upset when he heard about Kyler’s report to police. I accept Justin’s description of the Accused’s reaction. It makes sense the Accused would be upset because of Kyler involving police in the Accused’s affairs; as a drug dealer, the Accused wanted no contact with police. [ 135 ] In Justin’s police statement, Justin also described a heated exchange between himself and the Accused:

He’s like [unintelligible] call the fucking truck stolen. He’s like, fucking shut up, and I’m like, you know what, Cody, like, ah, don’t fucking tell me to shut up. I’ll punch you the fuck out right now. You know, like- like just... this is bullshit, right. Like, he could like... there’s no reason that he- he couldn’t even went and got his own fucking truck, you know. Maybe if you didn’t fucking [unintelligible] came back and actually [unintelligible] even picked up your fucking phone and communicated and say hey, well, by the way.

You know, instead of ignoring us and well, hey [unintelligible] just at the reception or we’ll be there in ten minutes. We had to stop at the [unintelligible] somewhere or something, just communicate. So whose fucking fault is that. It’s yours, nobody else’s but yours, you know. [unintelligible] answer your fucking phone, you know. Like, put yourself in someone else’s shoes for once in your life, you know. And its just, you know like, n- now I’m fucking... you know, like ah, he’s... like, I am [unintelligible] I’m getting... I’m getting fucking...

I don’t want fucking cops showing up here, and I don’t want to fucking, you know, get arrested for something that’s so- so stupid, right, because the kid’s calling and saying I’ll give ‘em the... and the house- house address and shit, you know. Like, so and that’s when he’s like, well did you check his phone. I was, like, yeah. I didn’t do it for you or whatever. I didn’t do it for anything, you know. I just... I- I took it because I don’t want to be fucking, you know, going- going to jail for something.

I just got out of fucking jail for- for fucking some stupid st- stolen vehicle, right. [ 136 ] I accept an exchange like this occurred between the two men for the following reasons: I infer Justin knew the Accused did not answer a number of Kyler’s calls (Ex 1). Justin accused the Accused of not answering his phone, so Justin obviously knew of the problem Kyler had trying to contact the Accused. I also infer Kyler told Justin that Kyler’s problems contacting the Accused explained why Kyler intended to report the truck stolen to police.

Justin wanted no part of a police investigation into a possible stolen truck when he had nothing to do with the delay in the truck’s return. [ 137 ] Justin continues with the following: But anyways, so then he's just [pause] where's the... fucking, so where's- where's his phone. I'm like, well, like, his phone- phone's in the fucking room, and [stutters] you know, like, give it back to the fucking kid or whatever. It's like, you know, no one needs to go and see whatever this and that and I was like... He’s like, you know the password. I’m like, no, right, even though he gave it to me, then ta...

I’m like, I know... I fucking know nothing. I just took... you know. I just don’t’ want that. [stutters] What the fuck do you want to use his phone for. I just want to make sure that there was no phone or phone calls to cops right- right now, right. [ 138 ] I find the Accused’s demand for Kyler’s phone and password happened. This fits with Simon’s evidence that he saw the Accused checking Kyler’s phone, and Holly’s evidence she saw Melissa in her bedroom with the phone connected to the computer in the presence of the Accused.

The evidence is not clear as to how Melissa or the Accused discovered the password. [ 139 ] Justin also said the Accused wanted to check for a call or calls to cops. The Accused already knew Kyler had said he called the police. I infer the Accused wanted to confirm a call to police from Kyler’s phone before the Accused made any other decisions. [ 140 ] Justin did not say the Accused wanted to look for pictures. There is no evidence the Accused had any information about Kyler having pictures of the Accused’s drug dealings at the time the Accused returned to the Clairmont residence and demanded Kyler’s phone.

The pictures came to his attention during Melissa’s examination of Kyler’s phone. That Justin said the Accused only referred to checking Kyler’s phone for calls to police strengthens Justin’s police statement on this point. Therefore, I accept the Accused asked Justin for Kyler’s phone and password and told Justin he wanted to look for calls to police. [ 141 ] Later in Justin’s police statement, Justin describes the Accused’s reaction to what the Accused found on Kyler’s phone: So Cody comes in and everything else, they're- they're talking and he's...

Cody's freaking out because he found pictures on his phone, and then for calling the truck in stolen, so he told him to call... he told him to call- call back and get [stutters] the truck unreported. And ah, so he got him to call back, and say he's got his truck [unintelligible]. And then ah, um, that's when they ... I guess they went and tied him up. And I didn't really... I was [unintelligible] I was in the room fight- fighting with Krista, and then I went to go use the washroom, and I seen that... I s- saw that[unintelligible].

Um, and then they let him out and every- everything else, and [pause] um, Cody said... he's like, something about... he's like, oh .. . he's like, fucking I'm just going to... don't worry, 'cause I'm- I'm going to fucking take care of this kid this and that, and what do you mean take care of him. He's like, oh, I have someone come here and- and [unintelligible] deal with him or whatever, and like, the fuck, man, you know. And so all of a sudden a bang at the door, and then Simon was there.

Guy's got his backpack and whatever else. [ 142 ] I accept the events occurred as Justin described, but not the order described. It makes sense the Accused would ask Kyler to call police and withdraw the stolen vehicle report, notwithstanding the truck remained parked near Mike’s residence, because the Accused wanted no contact with police. [ 143 ] I accept the Accused’s statement as described by Justin that the Accused would take care of “this kid” and he had someone coming here to deal with him. The fact that Simon came to the Clairmont residence corroborates this statement.

However, Simon’s arrival alone does not provide sufficient corroboration of this statement. At the time of Justin’s police statement, Justin knew Simon had come to the Clairmont house and could have relied on his knowledge to fabricate the words he attributed to the Accused as to why Simon arrived. [ 144 ] In assessing the truth of Justin’s evidence about the Accused’s statements, I must also assess the credibility of Simon’s evidence regarding what Simon heard the Accused say.

Simon testified the Accused told him on the phone to join him at the Clairmont residence because the Accused had an issue with “Junior” (aka Kyler). The Accused told Simon he had to settle an issue and Junior was the problem. Simon said the two did not discuss much on the phone. Rather, when Simon arrived at the Clairmont residence, the Accused told him Kyler had called police, accused them of stealing the truck, and “we” had to get rid of Kyler but did not specify how. [ 145 ] None of the other people at the Clairmont house understood French sufficiently to understand what the Accused may have said to Simon.

The two only spoke French to one another. Therefore, at no time could Justin and Simon discuss what the Accused said to either of them. [ 146 ] On the evidence of Justin and Simon, I accept as credible that Justin heard the Accused say he was going to take care of “this

kid” and someone would come here to deal with him. I also accept as credible what Simon says the Accused told him at the Clairmont residence with respect to dealing with Kyler. [ 147 ] Simon also testified about other statements made to him by the Accused, which led Simon to load the handgun: Q Why were you putting -- why were you doing that with the weapon? A In fact because we had to get rid of Junior. Q Did anyone tell you to get rid of Junior? A Yes. Q Who? A It's Cody who told me so. Q What did he tell you?

A So when he came back from the room -- when he returned from the room, he told me that I had to do it, that it had to be in a way that it was coming from me. He didn't want to give me some directions exactly what to do. ... Q Tell us what Cody said to you, as near as you remember.... A Okay. So in fact he told me -- so he told me that in fact we had to resolve this issue and in fact it had to come from me. So in fact I had to go with Bishop and in fact Bishop had said that we should go to an area where there is no cell phone reception, and once we were there to take the firearms and give it to Bishop.

So after that, we went and I left with Bishop, Christina, and Junior. [ 148 ] In this answer when Simon said the Accused told him to get rid of Junior, Simon repeated what I have previously found as a statement of the Accused. Simon further explained that when The Accused returned “from the room”, the Accused told Simon he did not to want to give Simon directions on exactly what to do, they had to resolve the issue, it had to come from Simon, and Simon had to go with Justin. [ 149 ] No one at the Clairmont residence understood French. As such, no one can corroborate that the Accused gave Simon those instructions.

Nevertheless, I accept the Accused gave Simon those instructions. This conforms with what the Accused told Justin, Simon’s arrival at the Clairmont house with a handgun, and the subsequent drive with Justin. [ 150 ] I also accept Simon’s evidence that the Accused told Simon to go with Justin in the truck, even though no other person can corroborate that evidence. In Justin’s police statement, Justin said the Accused asked Justin to drive the truck.

When Justin asked the Accused why Kyler couldn’t drive his own truck, the Accused said words like, “I don’t want [Kyler] taking off.” Justin said he agreed because he wanted “this” to be over. [ 151 ] The only possible way to travel to any location to deal with Kyler meant using the truck. With Kyler having withdrawn the report to police of the truck being stolen, the truck could be driven without attracting police attention.

Holly had the only other vehicle, but Holly connected with Krista, not Melissa and the Accused. [ 152 ] Holly knew nothing of Kyler’s report of the truck being stolen or the truck’s location. Holly testified that when she asked if anyone wanted a ride as she left the Clairmont residence, the Accused asked Holly to drop Kyler off at the truck. During cross- examination, Holly agreed the Accused asked her to drop the other two men off wherever they wanted to go. I accept Holly’s evidence on this point. Holly did not corroborate Simon’s evidence that the Accused told Simon to go with Justin.

However, Simon had no other means of transportation unless he took a cab. Justin said he agreed to go along to drive the truck and did drive it. This explains Justin’s presence in Holly’s vehicle to travel to the truck. Simon agreed that he asked the Accused to tell Justin to drive. There is no evidence as to when Simon made such a request. Kyler had no other means of travel to go to his truck. [ 153 ] Simon explained why he left the residence with the others in Holly’s vehicle. He testified the Accused told him to go with Justin, so he left with Justin, Krista, and Kyler.

I accept that Simon, Justin, Kyler, and Krista all left the Clairmont residence in Holly’s vehicle and Holly drove them to the truck. I also accept that the Accused told Simon to go with Justin to the truck because Simon had no other reason to go with the others except for the instructions of the Accused. [ 154 ] At page 71 of Justin’s police statement, Justin provides a garbled narrative of events where he describes events after Justin, Kyler, and Simon exited Holly’s vehicle near Mike’s residence to take the truck.

Justin told police that the Accused said, “I’ll send you the ... address where we’re going to go” and “we will be right behind you.” Justin asked the Accused, “okay, what the fucking plans .. like why can’t you get in with us.” Krista answers and tells Justin to just go and we will meet you there. I do not accept that the Accused uttered these statements. [ 155 ] Other than Justin’s garbled description, no evidence points to the Accused being present at the time Justin arrived at the truck. No other evidence corroborates this part of Justin’s police statement.

I cannot determine if Justin conflated telephone conversations with the Accused with the actual presence of the Accused. Justin describes himself as high and clueless. I agree with Justin’s description of his state of mind. Justin smoked methamphetamine at the Clairmont residence and I accept, took Xanax before leaving. While I have no expert evidence as to the effect of these drugs separately or in combination on a human being, I do accept Justin was impaired.

As such, I cannot rely on Justin’s evidence, without corroboration about what the Accused told Justin to do when Justin arrived at the truck. [ 156 ] In Justin’s police statement, Justin explained his attempt to find a location specified by the Accused by way of phone

communications. Justin had difficulty following the directions. The difficulty came from, I find, Justin’s impairment from the two drugs he had consumed. Simon corroborated the confused path of travel and Justin’s telephone conversations with the Accused. Simon and Justin could not collude on the erratic path of travel or the telephone conversations because of the language barrier and lack of contact between Justin and Simon after the killing. [ 157 ] Simon testified the Accused told Simon to give the firearm to Justin.

Defence counsel submits I should not accept these words as being uttered by the Accused because this was a weird statement. These words are unusual and memorable and do not fit Simon’s overall narrative as to why he killed Kyler. As such, I accept that Simon heard the Accused utter these words. I have no other evidence as to what the Accused had in mind with respect to Justin’s involvement other than Simon’s evidence that the Accused told Simon to give Justin the firearm. Nothing in Justin’s police statement or any other evidence gives rise to any inference that Justin intended to kill Kyler.

Justin pleaded guilty to manslaughter in relation to Kyler’s death. I do not know the facts supporting Justin’s plea, but his plea required him to admit he participated in a violent offence without an intention to kill Kyler. [ 158 ] I find the Accused also told Justin that he did not want Kyler taking off when Justin asked why Kyler could not drive the truck. At the time of this exchange between the Accused and Justin, the Accused knew of the report of the stolen truck. Kyler did not have control over the truck keys.

Either the Accused or Melissa had control of the truck keys after they left the truck at Mike’s residence. There is no evidence that either of them gave the keys to Kyler. Justin, not Kyler had the keys when they arrived at the truck. I infer either the Accused or Melissa gave the keys to Justin and the Accused knew who gave the keys to Justin because he wanted Justin to drive the truck. [ 159 ] During cross-examination, Simon generally agreed that if the Accused told him anything, the Accused was translating for Simon.

Simon’s response seems to suggest that during any discussions between the Accused and Simon involving these events, the Accused was translating what some other person said. However, Simon was not asked specifically when the Accused was translating and if there were times where the Accused was not translating. [ 160 ] I do not accept the Accused only spoke to Simon when the Accused was telling Simon what others said. On numerous occasions Simon related things the Accused told him without any reference to translating for another person.

This occurred when the Accused called Simon and asked him to come to the Clairmont residence, when the Accused told Simon about dealing with Kyler and when the Accused told Simon not to become involved. [ 161 ] At six different times in this trial, Defence counsel cross-examined Simon on whether the Accused told Simon not to get involved.

The first four times, Simon agreed that it “could be,” “maybe,” not in those exact words, “I don’t remember this,” “I’m a little bit agreeing and a little bit disagreeing,” and “why would he…told me to go with them, if he didn’t want me to get involved?” The last two times, Simon acknowledged the following things: 1) he remembered the Accused told him not to get involved; 2) the Accused told him that what was to happen had to come from Simon; 3) that the Accused told Simon to “take care of” Kyler, but did not tell Simon to kill Kyler; and 4) that the Accused tried to keep Simon out of it. [ 162 ] None of the questions and answers on this subject made it clear when or where the Accused gave this advice to Simon.

Nevertheless, in the context of all the events, I find that the Accused told Simon not to get involved before Simon left the Clairmont residence with Holly. [ 163 ] Nothing in the evidence supports the Accused saying any such words from the time the Accused left the Clairmont residence to the time of the killing of Kyler. Simon’s description of the Accused’s directions that what was to happen had to come from Simon, but also that Simon was not to get involved makes no sense. No other witnesses corroborated this evidence, nor could they since the conversation happened in French.

However, Simon testified that the conflicting directions raised some confusion in Simon’s mind. Therefore I accept the Accused said both, which confused Simon Travelling in Holly’s Vehicle [ 164 ] Holly testified she thought it odd that Simon and Justin came with her to drop Kyler off at the truck. She planned to ask the two men where they wanted to go once she dropped Kyler off at his truck. During the drive, Holly said Krista sat in the front passenger seat.

She thought Simon sat in the rear driver’s side passenger seat, Kyler sat in the middle rear passenger seat, and Justin sat on the passenger side rear passenger seat. Krista testified to the same seating arrangement. [ 165 ] Holly testified she did not buy gas at the Fas Gas. Rather, she thought she stopped at the Clairmont gas station to buy gas on the way to Mike’s residence. I do not accept she stopped in Clairmont for fuel. No other evidence confirms it.

Moreover a stop in Clairmont does not fit with the timing of events from the Clairmont residence to the Fas Gas. [ 166 ] The Fas Gas stop occurred shortly before 6:30 AM. During this stop, Holly and Krista went in first to buy lottery tickets. Justin followed a minute or two later to buy minutes for his phone. The video surveillance and the Lucky Mobile phone receipt seized from the truck corroborate these events. [ 167 ] Both Holly and Krista testified Kyler exited Holly’s vehicle and washed its rear window, which I accept.

This aligns with Holly’s evidence that she considered Kyler to have come with her willingly from the Clairmont residence. There is no evidence to suggest anyone told Kyler not to leave the vehicle. [ 168 ] Simon testified he bought a cannister of gas with the intention of burning the truck. Simon said he came up with this idea and he thought he told the Accused about it before leaving the Clairmont residence. Simon testified he could not know from the photo of a red gas cannister in the cargo box of a truck (Ex 12) if it depicted the same cannister that he used to buy the gas, but the cannister he used was red.

Neither the truck nor the cannister depicted had any marks which Simon could rely on to identify them as the gas cannister he used or Kyler’s truck. The items depicted only looked similar. No evidence supports Simon buying gas after the stop at the Fas Gas station. I accept Simon bought gas at the Fas Gas in a red cannister.

[ 169 ] After the Fas Gas stop, the five travelled to the location of the truck, parked across the street from Mike’s residence. Upon arrival, Justin entered the driver’s seat of the truck, Kyler entered the front passenger seat and Simon entered the driver’s side rear passenger seat. All of the witnesses agree on this seating arrangement. [ 170 ] Holly testified she thought it weird that Justin drove the truck since she thought she was taking Simon and Justin to some other location.

Justin and Krista were in a relationship, which made it all the more puzzling that Justin would leave Krista in Holly’s vehicle to drive a truck which did not belong to him while the owner of the truck rode as a passenger. From Mike’s Residence to the Crime Scene [ 171 ] I infer that Holly dropped Simon, Justin, and Kyler off at the truck approximately 10 – 15 minutes after leaving the Fas Gas. This would place the three men at the truck at approximately 6:40 – 6:45 AM.

Holly had only to travel from the Fas Gas to Mike’s residence, in the same neighbourhood and let her passengers out of her car. [ 172 ] In Justin’s police statement, Justin explained he understood that Holly and Krista would follow the truck with him driving. Holly and Krista both said they had no plan to follow the truck. Neither Holly nor Krista took any steps to follow or otherwise meet again with Justin until much later when Krista received the request to pick up the Accused’s friend. Rather, the two women visited with Mike, then stopped at the Clairmont residence and Holly’s residence.

I accept both women considered their involvement with the three men and the truck complete when they left the three men at the truck parked outside Mike’s residence. [ 173 ] In Justin’s police statement, Justin said he “was just going towards Spirit River,” which, I note, lies north of Grande Prairie and Woking. Justin described a confused, erratic pattern of driving, which Simon corroborated . Simon testified he told the Accused about the driving pattern on the phone.

It appeared to Simon that “we didn’t know where we were going and he seemed to be confused and turning around, in fact.” I accept Justin, due to his impaired mental state, drove an erratic route north from Grande Prairie to the location where the killing occurred. [ 174 ] Justin said the Accused kept inquiring as to where Justin was going and the Accused sent him “a map pic, like, a GPS kind of coordinate – map coordinate or something on where to go.” I do not accept this occurred. Phone records (Ex 1 and 22) detail only phone calls (no messaging) from Justin’s phone to the Accused’s phone.

The phone records show at least five calls before 8:05 AM originating from Justin’s phone to the Accused’s phone. Simon explained: Q What did you -- tell us about the conversation with Cody. A I was saying, in fact, where are we supposed to go? Which place? And in fact -- so he told me to -- we talked about going to places which we checked on Google, and then I think after that he hung up. And after -- so, in fact, I thought it was the same conversation when I called him again, and then he told me in fact just do it wherever you want, even at the roadside, anywhere. Q Do what? A In fact, to get rid of Junior.

Q Do you know how long you were driving around looking for this location? A No, I don't know. Q Do you know how many times you spoke to Cody on Bishop's phone? A So I spoke twice. I'm sure about it. Maybe three, but I'm sure about twice. [ 175 ] I accept this conversation between Simon and the Accused occurred during the drive to the location where the killing occurred. During the drive, Justin and Simon both spoke with the Accused and both sought directions to a location. There is no evidence to suggest either of them spoke to Melissa on the Accused’s phone.

While I do not accept the Accused sent a map or other location by electronic message, I do infer that during the phone calls the Accused verbally explained to both Simon and Justin where Justin should go with the truck. I do not find that either Simon or Justin checked on Google to find the location the Accused wanted them to find. [ 176 ] With respect to Simon’s evidence that the Accused told him to “just do it wherever you want, even at the roadside, anywhere,” no other witness can corroborate this evidence.

To assess the credibility of this evidence, I have considered it in the context of the other details Simon provided, including driving to and entering the truck, the seating arrangement in the truck, Justin’s confused driving pattern, the calls with the Accused, the killing at the roadside, and the eventual pick up by Holly and Krista. These details are all corroborated by some other evidence. I recognize Simon as a Vetrovec witness. However, I can accept his evidence without independent confirmatory evidence: see Lawrence .

In the context of this other corroborated evidence, I accept the Accused said those words to Simon. [ 177 ] In Justin’s police statement, Justin said that after about an hour in the truck, Kyler asked Justin to stop the truck, let him walk, and Kyler would sign over the truck to Justin. Justin said he provided some assurances to Kyler with respect to Kyler’s safety. Kyler then asked Justin to stop so Kyler could urinate.

Although no other witness can corroborate this evidence, I find that Kyler said those things to Justin. [ 178 ] Even accounting for Justin’s erratic route from Mike’s residence, an hour’s travel north would have placed the

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