R v Tallcree, 2023 ABKB 211

Court of King’s Bench of Alberta Citation: R v Tallcree, 2023 ABKB 211 Date: 20230414 Docket: 201223625Q1 Registry: Peace River Between: His Majesty the King Crown - and - Jason Alec Tallcree Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice W.N. Renke _______________________________________________________ At the request of Ms. Ribbonleg’s mother, I rescinded the publication ban respecting Ms. Ribbonleg. My reasons were delivered orally, with the written decision to follow. [ 1 ] Mr.

Tallcree faces a three-count Indictment alleging that he: 1. on or about the 5 th day of July, 2020, at or near John D’Or Prairie, Alberta, did unlawfully cause the death of Roderica Ribbonleg, thereby committing first degree murder, contrary to s. 235(1) of the Criminal Code . 2. on or about the 5 th day of July, 2020, at or near John D’Or Prairie, Alberta, did, for a sexual purpose, touch Roderica Ribbonleg, a person under the age of 16 years, contrary to s. 151 of the Criminal Code . 3. on or about the 5 th day of July, 2020, at or near John D’Or Prairie, Alberta, did improperly or indecently interfere with the … dead body of Roderica Ribbonleg, contrary to s. 182 (

b) of the Criminal Code . [ 2 ] Ms. Ribbonleg was murdered and left in a shallow grave. The crucial issue is identity. The crucial question is whether, on all the evidence, the Crown has proved beyond a reasonable doubt that Mr. Tallcree was the murderer. Counts two and three are important, but the focus of submissions and much of the evidence was on the count of murder in the first degree.

[ 3 ] For the most part, the case against Mr. Tallcree turned on the evidence and the fundamental principles of criminal law, not on technical legal argument. [ 4 ] I will review those fundamental principles, review the evidence, then assess whether the Crown has proven, beyond a reasonable doubt, that Mr. Tallcree committed any of the charged offences. Table of Contents I. Principles . 4 A. The Burden and Standard of Proof . 4 B. Circumstantial Cases . 5 II. The Evidence . 6 A. Sources of Evidence . 6 B. Events and Circumstances . 7 1. Ms. Ribbonleg . 7 2. Ms. Ribbonleg and John D’Or Prairie . 7 3.

Facebook Messenger Messages, July 2 – July 4, 2020 . 8 4. July 4 – Ms. Ribbonleg Leaves Willard’s Residence . 9 5. July 4, 2020 – Ms. Ribbonleg Travels to the Hut 9 6. July 5, 2020 – Ms. Ribbonleg and Mr. Tallcree at the Hut 10 7. Louise Tallcree, Mr. Tallcree’s Residence, and the Quad . 11 8. The Search – July 5 to 10 . 11 9. The Search - July 10 and 11 - Police Involvement 12 10. First Statement by Mr. Tallcree – July 11 . 12 11. The Search – July 12 - Discovery of Ms. Ribbonleg’s Body . 13 12. The Search – July 13 – Processing the Scenes . 14 13. Second Statement by Mr. Tallcree – July 14 . 14 14. Mr.

Tallcree . 15 15. Seized Quad . 15 16. Further Extraction Report Information . 16 C. Medical Examiner’s Report 16 1. Dr. Dixon . 16 2. General Matters . 17 3. The Autopsy and Report 17 4. Swabs . 18 5. Additional Examination . 18 6. Date of Death and Date of Sexual Activity . 18 7. Clothing and Personal Property . 18 D. Forensic Science and Identification Services Laboratory Reports . 19 1. Ms. Clark . 19 2. STR Analysis and Random Match Probability . 19 3. Reports . 19

4. Testing for Semen . 21 5. Degradation of DNA .. 22 6. Limitations of DNA Evidence . 23 III. Assessment 23 A. Common Offence Elements . 23 B. Sexual Interference . 25 1. The Offence . 25 2. Jurisdiction . 26 3. Age . 26 4. Touching for a Sexual Purpose . 26 5. Mens Rea or Fault 28 6. Date . 30 7. Conclusion . 30 C. First Degree Murder 30 1. The Offence . 31 2. Jurisdiction . 32 3. Date . 32 4. Identity . 33 5. Unlawful Act 41 6. Causation of Ms. Ribbonleg’s Death . 42 7. Intention to Cause Death . 42 8. Sexual Assault 43 9. Single Transaction . 44 10. Conclusion . 47 D. Indignity to a Dead Human Body . 47 1.

The Offence . 47 2. Jurisdiction . 47 3. Identity . 48 4. Date . 48 5. Actus Reus . 48 6. Mens Rea and Fault 48 7. Use of the Evidence of Concealment 48 IV. Verdicts . 48 I. Principles A. The Burden and Standard of Proof [ 5 ] Mr. Tallcree is presumed innocent. Our law requires that I take as a fact that Mr. Tallcree did not commit any offence and that fact remains unless, at the end of the case on all the evidence the Crown proves beyond a reasonable doubt that Mr. Tallcree is

guilty of an offence: R v Villaroman, 2016 SCC 33, Cromwell J at para 25; Woolmington v DPP, [1935] AC 462 (HL) at 481-482. Thatright is constitutionally confirmed by s. 11(

d) of the Charter: “Any person charged with an offence has the right ... to be presumedinnocent until proven guilty according to law ....” [6] The Crown has the burden of proving Mr. Tallcree’s guilt. Mr. Tallcree does not have the burden of proving his innocence,no burden even to raise a reasonable doubt about his innocence. He does not have to prove anything. Mr. Tallcree has a constitutionalright to remain silent in his trial, a right not to testify.

I cannot and do not draw any inference from his exercise of this constitutional right.See R v Symonds (1983), (ON CA), 9 CCC (3d) 225 (ON CA), Martin JA at 227 (“It is fundamental that a personcharged with a criminal offence has the right to remain silent and a jury is not entitled to draw any inference against an accused becausehe chooses to exercise that right”); R v Chambers, [1990] 2 SCR 129, Cory J at 1316; R v Noble, (SCC), [1997] 1 SCR874, Sopinka J at para 72 (“As Cory J. stated in Chambers, it would be a ‘snare and a delusion’ to grant the accused a right to remainsilent at trial yet then proceed to use the silence to find him or her guilty”). [7] The Crown has the burden of proving not that it is merely possible that Mr.

Tallcree is guilty of an offence, not that it ismerely probable or likely that Mr. Tallcree is guilty of an offence, but that Mr. Tallcree committed an offence beyond a reasonable doubt.Before I can convict Mr. Tallcree of an offence, I must be satisfied on all the evidence that there is no reasonable possibility that Mr.Tallcree is innocent of that offence, that the evidence does not support a reasonable inference that he is innocent of that offence.However, proof beyond a reasonable doubt is not proof beyond all doubt or any doubt. It is not a standard of absolute certainty.

But proofbeyond a reasonable doubt excludes or requires proof beyond all “reasonable” doubts about innocence, doubts that are not merespeculation, or imaginary or frivolous, or based on sympathy or prejudice: R v Lifchus, (SCC), [1997] 3 SCR 320,Cory J at para 31. Whether evidence exculpating an accused raises a reasonable doubt must be assessed in the context of the evidence asa whole: R v Ryon, 2019 ABCA 36, Martin JA at para 47; R v Morin, (SCC), [1988] 2 SCR 345, Sopinka J at 361 - 362and R v Thomas, 2012 ONSC 6653, Code J at para 24. B.

Circumstantial Cases [8] Both the Crown and Defence Counsel described this case as “circumstantial.” That means there was no “direct” evidence ofwhat happened, no video of a crime in progress, no eye-witnesses, no confession by an accused, no description of what happened by acomplainant. Instead, the Crown relied on evidence of the circumstances, evidence of facts that together support inferences orconclusions about what happened. [9] An important feature of circumstantial evidence is that all the circumstantial evidence must be considered together, as awhole.

The pieces of circumstantial evidence should support each other, and, if the Crown is to prove its case, lead to a single conclusionof guilt and exclude all inferences of the accused’s innocence: R v Hudson, 2021 ONCA 772 at para 70.

For the Crown to succeed in acircumstantial case, the existence of each of the bits of circumstantial evidence, considered as a whole, must make the accused’sinnocence so improbable that the evidence cannot support a reasonable inference of innocence: R v Uhrig, 2012 ONCA 470 at para 13;R v McEwan & Lee, , [1933] 1 DLR 398, 59 CCC 75 (AB SC App Div) at 404(DLR). [10] It is still necessary for the trier of fact to accept the relevance and reliability of particular bits of circumstantial evidence –otherwise, this evidence could not contribute to the strength of the circumstantial case: R v Wuschenny, 2018 ONSC 6765, Pomerance Jat para 77. [11] A trier of fact must approach circumstantial cases with caution.

We have a natural inclination to consider the circumstances,the events and conditions, to form a single narrative. See R v Osman, 2021 ONSC 7328, Roberts J at para 79 (“the human desire to makesense of events with a coherent narrative”).

Our inclination to perceive a narrative leads to two linked errors – first, ignoring gaps in theevidence, ignoring the absence of evidence needed to support the narrative, and second, ignoring alternative explanations that aresupported by the evidence, ignoring inferences of innocence: Villaroman at paras 26 and 37. [12] This is to say that guilt must be established beyond a reasonable doubt in circumstantial cases, like in all other cases. [13] But this is also to say that the standard remains proof beyond a reasonable doubt.

Doubt may arise from an acceptance ofreasonable inferences of innocence but should not be founded on unreasonable inferences of innocence, on speculation, conjecture, orassumption without a reasonable evidential foundation. See Villaroman at para 42; R v Dipnarine, 2014 ABCA 328 at paras 22, 24-25;R v Tetreault, 2018 ABCA 397 at para 32; R v Cabrera, 2019 ABCA 184, affd sub nom. R v Shlah, 2019 SCC 56, Fraser CJA at para185(CA); R v Beckman, 2022 ABQB 298 at paras 99-100. II. The Evidence [14] The series of events that took Ms.

Ribbonleg from her home, to a place known as the hut or the shack, to her shallow grave arelargely uncontested. The inferences to be drawn from the series of events are contested. [15] All events took place at the John D’Or Prairie First Nation Reserve in Alberta (John D’Or Prairie). John D’Or Prairie lies Eastof High Level. The main access is Highway 58. The community is small, about 1300 people. A. Sources of Evidence [16] Two Agreed Statements of Facts were filed, exhibits 3 (First ASoF) and 13 (Second ASoF).

Two books of photographs wereentered as consent exhibits, exhibits 2 and 10 (Photopack 1 and Photopack 2). [17] Eight civilian witnesses testified –

• Willard Tallcree and Kelly Ann Wright (Ms. Ribbonleg had lived with them) • Lennox Wapoose and Isabelle Alook (who were connected to the hut and Ms. Ribbonleg’s attendance there) • Doreen Nanooch (a caseworker with the Mamawi Awasis Society, the child protective service for the Little Red River Cree Nation) • Joe Tallcree (Mr. Tallcree’s nephew who messaged with Ms. Ribbonleg and was at the hut) • Louise Tallcree (Mr. Tallcree’s mother) • Doyle Nanooch (a search team leader who found Ms. Ribbonleg’s body). [ 18 ] Five members of the RCMP testified – • Cpl. Lee Clancy (viewed the bush areas connected with Ms.

Ribbonleg, took GPS coordinates, and assisted with the recovery of her body) • Cst. Jeff Dickison (canvassed many area residents and spoke to Mr. Tallcree) • Cpl. Derek Carlson (with the Edmonton Major Crimes Unit, spoke to Mr. Tallcree) • Cpl. Thomas Weiers (part of the command triangle, created a map (exhibit 14) displaying significant areas based on GPS coordinates provided by Cpl. Clancy and Cst.

Derek Robertson (Second ASoF at paras 1-5) and based on his own personal attendance at John D’Or Prairie – the map was admitted as illustrative evidence, not as independent evidence with its own probative value; there were no objections relating to any lack of accuracy or misleading aspects of the map) • Cpl. Jamie Thoreson (retired) (at the material time with Digital Forensic Services; prepared an extraction report respecting Ms. Ribbonleg’s cellphone (exhibit 8, the Extraction Report)). [ 19 ] Two experts were qualified and testified – • Dr.

Tara Dixon, Assistant Chief Medical Examiner (qualified as an expert in forensic pathology) • Meagan Clark, Reporting Scientist, RCMP National Forensic Laboratory Edmonton (qualified as a forensic DNA specialist with expertise in the

interpretation of search results as those pertain to the examination of exhibits for the presence and identification of human biological material as well as the

interpretation of results of DNA typing analysis, including comparison of profiles and the application of statistical significance to any matches or inclusions found). Qualification of the experts was not contested. [ 20 ] I note that while I raised the issue, the Defence was content to receive Cpl. Thoreson’s testimony without his qualification as an expert. Cpl. Thoreson’s testimony did not fit neatly into the categorization of experts in Kon Construction Ltd v Terranova Developments Ltd , 2015 ABCA 249 at paras 35-38 . Cpl. Thoreson certainly has expertise.

However, he was not called on to give an opinion but to report the results of the automated extraction process, that is, to report the facts of the extraction. The extraction process itself was not at issue. See R v Cyr , 2012 ONCA 919 at para 100 ; R v Awer , 2016 ABCA 128 at paras 52-53 , revd other grounds 2017 SCC 2 . See also First ASoF at para 29. [ 21 ] Continuity of exhibits was not contested: see First ASoF p. 1 (“The Parties agree that continuity of all Crown exhibits is admitted ....”); Second ASoF p. 2. [ 22 ] The Defence called no evidence.

That is mentioned only so the sources of evidence are clarified. No use is made of Mr. Tallcree’s silence. B. Events and Circumstances [ 23 ] In the following, in keeping with the approach used in examination-in-chief and cross-examination, I’ll use some individuals’ first names. By this I mean no disrespect. The use of first names will assist in identifying individuals. 1. Ms. Ribbonleg [ 24 ] Ms. Ribbonleg was 15 years old. Her birth registration confirmation was exhibit 1. She was a member of the Little Red River Cree Nation. 2. Ms. Ribbonleg and John D’Or Prairie [ 25 ] Doreen Nanooch testified that Ms.

Ribbonleg had been in the care of the Mamawi Awasis Society. In 2019, Ms. Ribbonleg had been in foster care at the home of Willard Tallcree and his wife Marlene. Ms. Ribbonleg then moved to foster care at Garden River. Ms. Ribbonleg subsequently was to go to foster care with another family in John D’Or Prairie but indicated her preference to stay with Willard Tallcree. [ 26 ] Ms. Ribbonleg was permitted to stay with Willard and his partner Kelly Ann Wright on an “extended visit.” Ms. Ribbonleg had been living with them since about the beginning of June 2020.

[ 27 ] Willard, Kelly Ann, Willard’s children and Ms. Ribbonleg lived in House 77. [ 28 ] Willard testified that Ms. Ribbonleg used her iPhone a lot. [ 29 ] He would communicate with her when she was out by FaceBook Messenger. Ms. Ribbonleg would contact him if she needed a ride from a friend’s place or if she’d be staying with a friend. She would typically stay only one night then would text for a ride home. If he was busy, she would contact Kelly Ann “or one of the kids” to contact him. Willard said Ms. Ribbonleg “was responsible.

She’d contact me if she was away.” [ 30 ] There were limitations on cellphone use on John D’Or Prairie, though. Willard testified that at the time there were no cellphone towers on John D’Or Prairie. To communicate, a cellphone user had to be at a residence or building that provided internet service. He had internet service (Wi-Fi) at his home. 3. Facebook Messenger Messages, July 2 – July 4, 2020 [ 31 ] Exhibit 4 was Ms. Ribbonleg’s white Apple iPhone 5S. She was the listed owner of the cellphone. A full extraction was done on the phone. The extraction yielded 2,265 pages.

Only pages 20-121 were included in the Extraction Report. [ 32 ] The authenticity of the electronic communications was admitted under ss. 31.1 to 31.8 of the Canada Evidence Act : First ASoF at para 29. [ 33 ] The Extraction Report disclosed that Ms. Ribbonleg and Joe Tallcree had been exchanging Facebook Messenger messages from July 2, 2020 at 1:18 a.m. to July 4, 2020 at 7:25 p.m. There were numerous messages on each of July 2, 3, and 4. The message at 7:25 p.m. on July 4 was Ms. Ribbonleg’s last text message. Joe confirmed communicating with Ms. Ribbonleg in his testimony.

Exhibit 2 had photographs of Joe’s phone showing the messages exchanged with Ms. Ribbonleg. [ 34 ] The communications on July 4 began just after midnight and continued to 7:25 p.m. In essence the exchange on this date concerned Ms. Ribbonleg and Joe visiting each other. Joe’s sister would come pick Ms. Ribbonleg up. Some of the messages were as follows (with RR designating Ms. Ribbonleg): Joe, July 4, 00:17 – Maybe we’ll meet up before I go home? RR: 00:26 – Let’s see RR: 00:36 How old are you the[n]?

RR: 00:57 Do you have a girlfriend or what RR: 1:09 Ok I will see you when you go home RR: 3:24 Tell me when you go home I’m still coming with you Joe 3:34 wya RR 3:34: At my uncle RR: 5:36 I will come over tonight RR: 18:50 Come and get me then Joe: 19:17 I’m at my sisters drinking 19:17 Me & my sister will go pick you up RR: 19:19 I have to go the store first Joe: 19:24 Just my sister is going to go pick you up I’m going home RR: 19:25 I will go walking anyways. 4. July 4 – Ms. Ribbonleg Leaves Willard’s Residence [ 35 ] Willard’s testimony was that on July 4, he and Kelly Ann had been working on vehicle. Ms.

Ribbonleg said she wanted to visit a friend. He agreed. [ 36 ] Kelly Ann testified that the last time she saw Ms. Ribbonleg was at Willard’s home. It was a sunny day and Ms. Ribbonleg was going to visit a friend. She thought this was July 5 (I find that she was mistaken on this point. It was July 4. This was an understandable memory lapse.) Kelly Ann saw Ms. Ribbonleg walk out of the house to a “silver” SUV that had pulled up. There was a woman driving the SUV who was smiling. She didn’t see anyone else in the vehicle. The driver and Ms. Ribbonleg seemed to be friends.

Kelly Ann did not know who the driver was because she was new to John D’Or Prairie. [ 37 ] Ms. Ribbonleg’s last text suggests that she went out sometime around 7:30 p.m. John D’Or Prairie is a Northerly community and it was early July, so, as Kelly Ann said, it was still likely sunny.

5. July 4, 2020 – Ms. Ribbonleg Travels to the Hut [ 38 ] I’ll review Isabelle Alook’s and Lennox Wapoose’s testimony, then Joe’s. (

a) Isabelle Alook and Lennox Wapoose [ 39 ] At this time, Isabelle was living with Lennox. They were living in the residence known as the hut. Lennox testified that the house didn’t have a number, but there was evidence that it was house 22B. This residence did not have internet or Wi-Fi service. [ 40 ] Isabelle’s testimony established that she came to pick up Ms. Ribbonleg from Willard’s. Joe had messaged her. Joe told Isabelle where Ms. Ribbonleg was staying. Lennox also confirmed that Isabelle drove Ms. Ribbonleg to his house. [ 41 ] Isabelle was driving a grey SUV. Lennox’s description was similar.

Her vehicle was close to Kelly Ann’s description. [ 42 ] Isabelle drove to Joe’s home. He showed her messages from Ms. Ribbonleg. Afterward she went to get Ms. Ribbonleg. [ 43 ] Isabelle initially testified that she picked up Ms. Ribbonleg at around 1:00 p.m. Upon refreshing her memory through a prior statement, she indicated that she had picked up Joe on Friday evening. A few hours later, she picked up Ms. Ribbonleg. She picked up Ms. Ribbonleg in the evening, then. Lennox said that all he knew was that Ms. Ribbonleg arrived sometime in the evening. This matches the timeline suggested by Ms.

Ribbonleg’s messages and is consistent with Kelly Ann’s testimony. [ 44 ] Isabelle knew Ms. Ribbonleg because they’d been in the same foster home in Garden River. [ 45 ] After Isabelle picked up Ms. Ribbonleg, Ms. Ribbonleg said she wanted to see Isabelle’s children. [ 46 ] When they arrived at Isabelle and Lennox’s residence, other people were there: Lennox, Joe, Mike Tallcree (Mr. Tallcree’s brother) who was babysitting her children, and her children. Lennox confirmed that he met Ms.

Ribbonleg when she came to his house, and the people Isabelle identified were there and no one else. [ 47 ] Isabelle later left with Lennox. Lennox confirmed this. According to both Isabelle and Lennox, Ms. Ribbonleg and the others remained. [ 48 ] When she left with Lennox, Isabelle said that Ms. Ribbonleg was “sleeping in the room.” She left Ms. Ribbonleg there. She “thought she’d be safe there.” [ 49 ] Lennox testified that he and Isabelle returned 4 or 5 hours later. Joe was already gone. Mike and the children were there. Ms. Ribbonleg was sleeping.

He didn’t talk to her. [ 50 ] In cross-examination, Isabelle was questioned about her police statement. She had stated that the last time she saw Ms. Ribbonleg, “she took off walking.” It was put to her that she had told the police that the last time she saw Ms. Ribbonleg, Ms. Ribbonleg was walking down the road, by herself. When asked whether she actually saw Ms. Ribbonleg leave the house or someone told her that, she said “someone told me she was walking.” [ 51 ] Isabelle did testify that she had seen Ms. Ribbonleg’s messages to Joe. One of these, near the discussion about her being picked up, was Ms.

Ribbonleg’s message “I will go walking anyways.” This was likely the source of Isabelle’s memory that she had seen Ms. Ribbonleg walking. I find that when Isabelle and Lennox left, Ms. Ribbonleg was sleeping in their residence. (

b) Joe Tallcree [ 52 ] Joe confirmed in his testimony that he was going to meet with Ms. Ribbonleg. They met in person for the first time on July 4. [ 53 ] He confirmed that he had talked to Isabelle about picking Ms. Ribbonleg up and that Isabelle picked her up, but his memory was that he was with Isabelle when picked Ms. Ribbonleg up. He recalled Isabelle driving to his mother’s house. They then went to Isabelle and Lennox’s place.

He remembered that Isabelle had come to his mother’s house before going to Lennox’s place. [ 54 ] Joe recalled arriving at Lennox’s place at about 10 p.m. [ 55 ] His account of who was present was the same as Isabelle’s and Lennox’s account, but he said there was also “a guy named Lloyd” in Isabelle’s vehicle. [ 56 ] Joe slept at Lennox’s place that night. 6. July 5, 2020 – Ms. Ribbonleg and Mr. Tallcree at the Hut [ 57 ] The next day, July 5, Joe awoke at about 6 a.m. He woke up Mike. They watched the movie “Ice Age.” They then tried watching the movie “Only the Brave,” but the disc kept skipping.

They hung around a bit. [ 58 ] Mr. Tallcree arrived at around 10 a.m. He said he’d come to check on Mike. Mr. Tallcree was driving a grey quad. Joe recognized the quad. It was Sheena’s quad. Sheena was Mr. Tallcree’s girlfriend. [ 59 ] Joe asked if he could get a ride home. Mr. Tallcree told him he couldn’t, there was no room. [ 60 ] Mr. Tallcree asked, “who’s that over there?”

[ 61 ] In chief, Joe said he responded by saying she was Roderica Ribbonleg. [ 62 ] Ms. Ribbonleg was still sleeping in a bedroom. She was visible. Joe said she was on her side, facing toward them. [ 63 ] In cross-examination, Joe said he did not agree that he did not say Ms. Ribbonleg’s name, but called her “my girl.” When further questioned about whether he said “Roderica Ribbonleg” he testified, “I think so,” but he said he was not certain that he said “Roderica Ribbonleg.” [ 64 ] Mr. Tallcree drove Joe home to Joe’s mother’s. Joe got home at around 10:30-10:40 a.m. He talked briefly with Mr. Tallcree.

He had a shower and went to bed. [ 65 ] Joe did not see Ms. Ribbonleg after he went home. [ 66 ] On July 4, Joe sent two messages that I infer were sent some time after 7:25 p.m.: “Tooo” and “Yooo.” Neither message was delivered. [ 67 ] On July 6, Joe sent a message to Ms. Ribbonleg at 2:02 a.m.: “Did u make it home?” This message was not delivered. [ 68 ] These messages are depicted in photo 57 in Photopack 1. 7. Louise Tallcree, Mr. Tallcree’s Residence, and the Quad [ 69 ] In July 2020, Mr. Tallcree and his common law spouse Sheena Blesse were living with Mr. Tallcree’s mother, Louise Tallcree.

Sheena had a quad that Mr. Tallcree used. This was the quad depicted in photos 41 to 43 of Photopack 1. [ 70 ] Ms. Tallcree was asked whether she remembered Mr. Tallcree leaving her home. She responded that he had, he went for a ride, but she didn’t know where. There was no more specificity than that. 8. The Search – July 5 to 10 [ 71 ] Ms. Ribbonleg did not return to Willard’s home in the evening of July 4. He sent her a message, but it was not delivered (he said one could see if a message was not delivered). [ 72 ] Willard tried to find Ms. Ribbonleg by contacting her friends.

The friends said they hadn’t seen her (this was hearsay, but the statements were admissible for the fact that the statements were made to Willard, which in turn was relevant to his conduct, as well as to the narrative of events). Because her friends said they hadn’t seen her, on July 5 or 6, he contacted Doreen Nanooch. In cross- examination, Willard said that he’d contacted Doreen about 2 days after Ms. Ribbonleg’s disappearance. Her being away for two days would not be unusual because she sometimes stayed with friends.

Willard left it to Doreen to contact the police. [ 73 ] In cross-examination, Willard said that Ms. Ribbonleg liked to go “camping” at a friend’s place. As a matter of judicial experience, I find that the term “camping” was idiomatic, a synonym for visit or “stay over night.” The term did not denote going into the bush and camping. See Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General) , 2015 SCC 25 , Abella J at paras 32 and 33. In any event, there was no evidence that Ms.

Ribbonleg had access to outdoor camping equipment. [ 74 ] Doreen Nanooch testified that Willard reported to her that Ms. Ribbonleg was missing on Tuesday, July 7. She started phoning and driving around. She went from house to house talking to Ms. Ribbonleg’s friends and looking for her. She made phone calls. She put out an alert on social media. She said “we thought she’d come home.” [ 75 ] In cross-examination, Ms. Nanooch said that Ms. Ribbonleg had run away only one time, in Garden River. She spent a weekend at a friend’s house. She didn’t contact anyone for a few days. [ 76 ] On July 10, Doreen reported Ms.

Ribbonleg’s disappearance to the police. 9. The Search - July 10 and 11 - Police Involvement [ 77 ] Cpl. Dickison, who at the time worked from the Fort Vermillion Detachment, received Ms. Nanooch’s call on July 10. He got as much information as he could from Ms. Nanooch and also called Mamawi Awasis Society. He sent the night shift to John D’Or Prairie. [ 78 ] The First ASoF details the efforts of RCMP members on July 10 and 11 at paras 4-11. Cst. Mihai Dragomir and Cst. Michael Kulyk of the Fort Vermillion RCMP spoke to numerous John D’Or Prairie residents. On July 10, they spoke to about 10 individuals. Cpl.

James Dollard spoke to another individual that day. On July 11, Cst. Dragomir and Cst. Kulyk spoke to 10 additional John D’Or Prairie residents. Cpl. Devron Dittmer spoke with numerous residents of Fox Lake, including a crew of barge workers. Cpl. Gage Heathcote spoke to a further individual and on the 12 th to another. [ 79 ] On July 11, Cst. Daniel Larsen conducted a check-stop at the T-intersection near the Northern Store in John D’Or Prairie. He stopped 48 vehicles, showed a photo of Ms. Ribbonleg, and requested that they call police if they saw her. [ 80 ] On July 11, Cpl. Dickison was advised that Ms.

Ribbonleg had not been located. He went to John D’Or Prairie. [ 81 ] He spoke to about 15 residents. He travelled to multiple residences. 10. First Statement by Mr. Tallcree – July 11

[ 82 ] On July 11, Cst. Dickison went to Louise Tallcree’s residence. He talked to a number of people outside her residence. [ 83 ] One of these individuals was Mr. Tallcree. At this time, Mr. Tallcree was not a suspect. [ 84 ] Cst. Dickison asked Mr. Tallcree if he had seen Ms. Ribbonleg, if he was familiar with her. Mr. Tallcree said that the name’s not familiar. Cst. Dickison said he “wrote down just the gist of the conversation.” He didn’t ask about anything else. He checked his report. The report indicated that Mr. Tallcree said he had picked up Joe Tallcree from a party. According to Mr.

Tallcree it was just “sometime on the weekend.” Cst. Dickison did not ask him the time of the party. Cst. Dickison had asked Mr. Tallcree about the names Ms. Ribbonleg and Rhonda Loonskin, a friend of Ms. Ribbonleg’s. Cst. Dickison reiterated that Mr. Tallcree just said the names weren’t familiar: “I asked about names and he said that names were not familiar.” [ 85 ] The voluntariness of this statement was conceded. See First ASoF at para 48. A voir dire was held, though, and I found that Mr. Tallcree’s statement was voluntary, beyond a reasonable doubt. 11. The Search – July 12 - Discovery of Ms.

Ribbonleg’s Body [ 86 ] Doyle Nanooch had lived in John D’Or Prairie his whole life. He had experience in searching for missing community members. He’d received guidance from the Elders about what to look for, what details to pay attention to. [ 87 ] He got a call from the Mamawi Awasis Society asking him to participate in the search for Ms. Ribbonleg. He became involved with the search at about 9 to 9:30 a.m. on July 12. [ 88 ] The search was well organized. Some searchers were on quads. Handheld radios had been given out. Searchers were careful with evidence.

The search party included Shane Tallcree, Roy Loonskin, Landon Dumas-Auger, and Dwayne Laboucan, as well as Doyle Nanooch. [ 89 ] The search started at “Matthew Junior’s” yard. Information had been received that this was where Ms. Ribbonleg had last been seen. This location was where Lennox’s place was located. The search started about 400 yards from that building. [ 90 ] Doyle was teamed with Dwayne Laboucan.

They both had quads. [ 91 ] The searchers noticed “a whole bunch of crows” and decided to check this out. [ 92 ] A group of searchers headed due South to Charlie Wapoose’s old abandoned place, house 32. [ 93 ] Some searchers had already arrived at Charlie Wapoose’s place. They discovered a woman’s pad on a quad trail. Doyle said “we told everybody to stop where they are.” He said they waited for the RCMP. [ 94 ] Members of the RCMP came, documented the item, and took it into evidence. [ 95 ] Doyle said that a little ways down, another guy came across a cellphone. This was later determined to be Ms.

Ribbonleg’s cellphone (exhibit 4). Again, people were told to stop. The RCMP members who were there took photos and put flags down. [ 96 ] I note that para14 of the First ASoF reverses the order of recovery of the two objects. That inconsistency is inconsequential. Shane Tallcree found the cellphone. [ 97 ] The search continued East from Charlie Wapoose’s place. Doyle said they walked about 50-100 feet into a bush area. Some guys said they found something. Doyle and Dwayne went to check. The vegetation around a willowbush appeared to have been flattened. A quad trail led away from this area.

Doyle said it was a quad trail because the wheel base was not too wide. He could compare it to his own quad. He, Dwayne, and some others waited there. About half an hour passed. [ 98 ] Roy Loonskin had followed the quad trail on foot. The land went from bush to a field. Roy had walked in about 3-4 kilometres. Roy radioed and let Doyle and Dwayne know he’d found something. [ 99 ] Doyle and Dwayne drove their quads in to where Roy was waiting. He directed them North, toward a beaver dam.

Doyle and Dwayne got off their quads and walked down the quad trail. [ 100 ] They came to a beaver burrow or beaver hole, a tunnel dug by beavers leading to a stream. [ 101 ] They could see something that looked like clothes or a sweater. [ 102 ] Doyle put his gloves on and lightly swept some dirt away from what was sticking out. [ 103 ] It looked like a human elbow. [ 104 ] Doyle radioed people to tell the RCMP to come. He and Dwayne waited. RCMP members arrived and Doyle told them exactly what he did.

The police flagged the place. [ 105 ] The First ASoF at paras 19-21 details the attendance and roles of RCMP members at this scene. 12. The Search – July 13 – Processing the Scenes [ 106 ] Cpl. Lee Clancey was with the Forensic Identification Section. He became involved in this case late on July 12, 2020. He was advised by Fort Vermillion RCMP that what appeared to be human remains had been found outside the John D’Or Prairie community.

He arrived at John D’Or Prairie just after midnight on July 13. He observed “scene two,” house 32, and confirmed that the cellphone and pad had been seized by other members. He took photographs of the area. He obtained GPS coordinates for significant locations. He drove to “scene one” where the human remains were found. He walked through the area, took photographs, and obtained GPS coordinates. The main area was tarped off. He observed a bent wrist and some clothing protruding from the earth. [ 107 ] He returned the next day and participated in the excavation of Ms. Ribbonleg.

Additional detail is found in the First ASoF at paras 21-22. [ 108 ] Cpl. Clancey confirmed that the shirt on Ms. Ribbonleg’s body had been pushed up and the pants were unbuttoned. No officer disturbed her clothing during the excavation. She was missing one sock and both shoes. [ 109 ] Ms. Ribbonleg’s body was removed from the scene. It was transported to the Medical Examiner’s Office in Edmonton. 13. Second Statement by Mr. Tallcree – July 14 [ 110 ] Cpl. Derek Carlson was with the Major Crimes Unit in Edmonton.

He deployed to Fort Vermillion on July 13 for briefing. [ 111 ] On July 14, he visited house 32 (scene two). He said this house was unoccupied. There were smashed windows and overturned furniture and signs of animals. There was nothing suggesting a struggle or that human tissue might be found. [ 112 ] After speaking to some people, he and Cst. Derek Robertson went to Garden River First Nation, East of John D’Or Prairie. They left around 3:00 p.m. and got there shortly before 5 p.m. It had rained heavily. Their intention was to speak with Mr. Tallcree.

Their information was that he was at the home of his brother Roger Tallcree in Garden River. [ 113 ] Cpl. Carlson and Cst. Robertson were in plain clothes, but with badges displayed. They were armed. They were driving an unmarked Dodge Ram pickup truck. [ 114 ] The home was a raised bungalow with 10-15 stairs. Cpl. Carlson went to the door while Cst. Robertson remained at the bottom of the stairs. [ 115 ] Cpl. Carlson knocked on the door. A person who identified himself as Reuben answered. Cpl. Carlson said he would like to speak to Jason. He was told that Jason and Sheena were there but Jason was sleeping. Cpl.

Carlson asked if Reuben could bring Jason to the door. Reuben shut the door and went inside. [ 116 ] After about 5 minutes, a man came out. Cpl. Carlson believed it was Mr. Tallcree. Cpl. Carlson introduced himself, identifying himself as a police officer, and said he’d like to speak to Mr. Tallcree about the disappearance and suspicious death of Ms. Ribbonleg. [ 117 ] Mr. Tallcree immediately responded “I don’t even know her.” [ 118 ] Cpl. Carlson observed that Mr. Tallcree’s response was in the “typical cadence of conversation.” [ 119 ] Cpl. Carlson said “I’d like to speak to you about this. I have a vehicle.

Would you like to talk to me about this in the truck?” Cst. Robertson led the way and got into the back seat. Mr. Tallcree got into the passenger seat. Cpl. Carlson got into the driver’s seat. [ 120 ] Cpl. Carlson told Mr. Tallcree that he was investigating the disappearance of Ms. Ribbonleg and her suspicious death, and he believed Mr. Tallcree had knowledge or involvement. Cpl. Carlson said that Mr. Tallcree was not under arrest and he was not being detained. The vehicle door was unlocked and Mr. Tallcree was free to leave if he chose to. [ 121 ] Mr. Tallcree left the truck. [ 122 ] Prior to Mr.

Tallcree leaving the truck, Cpl. Carlson had asked Mr. Tallcree if he could turn on his recorder. Mr. Tallcree said, “I don’t want to speak to the police, I want to speak to my lawyer.” [ 123 ] The interaction was very brief. The officers arrived at the residence at 4:52 p.m. and Mr. Tallcree left the truck at 5:03 p.m. [ 124 ] Again, voluntariness was conceded but a voir dire was held. See First ASoF at para 49. I found that the statement made by Mr. Tallcree (“I don’t even know her”) was voluntary, beyond a reasonable doubt. [ 125 ] Cpl. Carlson commented on Mr. Tallcree’s appearance.

The light was good and he got a good look at Mr. Tallcree. Cpl. Carlson confirmed his own height of about 6’ and his own weight of 215 lbs. Mr. Tallcree, Cpl. Carlson said, was at eye level if not taller than him and Cpl. Carlson estimated Mr. Tallcree’s weight at about 200 lbs. Cpl. Carlson said he had a large build. He looked like a put- together man in his mid- to late-30s. 14. Mr. Tallcree [ 126 ] According to Louise Tallcree, Mr. Tallcree was born in 1985. He was about age 35 at the time of the material events. [ 127 ] There was no evidence that Mr. Tallcree had any knowledge of or contact with Ms.

Ribbonleg prior to July 5, 2020. 15. Seized Quad [ 128 ] The RCMP seized a green quad from the residence of Louise Tallcree and Mr. Tallcree.

16. Further Extraction Report Information (

a) Number of Chats [ 129 ] The Extraction Report provides information about 55 chats, that is, sets of communications between Ms. Ribbonleg and third parties. [ 130 ] A few of these conversations began (as disclosed by the report) on July 1, 2, or 3 and a few began even earlier. It appears that many of the 55 chats extended to July 4. That is to say, on July 4, when Ms. Ribbonleg was messaging with Joe, she was involved in something in the order of 36 conversations. (

b) Last Chat, Last Activities [ 131 ] According to Cpl. Thoreson, Ms. Ribbonleg’s last chat was timestamped at 2020-07-04 at 19:25:39. [ 132 ] Cpl. Thoreson testified, though, that two videos were taken with the phone on July 4 at 11:10 p.m. and 11:11 p.m. In addition, he testified that the device “counted user steps” (50 steps) at 10:41-10:50 p.m. (this was through an “activities” app on the cellphone). This information was not in Exhibit 8 but in the unredacted extraction report. No objection was made to this information, which was harmless enough since there was no suggestion that Ms.

Ribbonleg was anywhere other than the hut at this time. [ 133 ] In exhibit 7, the Analysis Report, p. 4, Cpl. Thoreson wrote that device location information ended at the time stamp 2020-07- 05 03:23:53 (UTC-6). He confirmed this in testimony and went on to say that “[t]here appears to be no further activity on the device after the time stamp 2020-07-05 11:14:59 (UTC-6).” This matter was probed in cross-examination. The explanation was that the cellphone continued to record GPS data after the last message was sent, even though there were no cell towers to connect to and no known Wi-Fi connection. Cpl.

Thoreson said that the accuracy of the locations may be questionable. Cpl. Thoreson did not provide an explanation for this, indicating that this would veer into opinion. He did point out that normal GPS devices can record GPS positions without relying on the internet. [ 134 ] In cross-examination, Cpl. Thoreson also testified that the last time the cellphone had connected to Wi-Fi was July 4, 2020 at 4:53 p.m. (I understood Cpl. Thoreson to refer to the time of connection not the last time of use while connected, which was later.) C. Medical Examiner’s Report 1. Dr. Tara Dixon [ 135 ] Dr.

Dixon is an Assistant Chief Medical Examiner for Alberta. She joined the Medical Examiner’s Office in 2018. She holds a BSc in Medical Laboratory Sciences and an MD from the University of Alberta. She completed a 5-year residency in general pathology at the University of Alberta. She is certified in Forensic Pathology, having completed an accredited Fellowship at the King County Medical Examiner’s Office and University of Washington.

Since 2018, she has been a Clinical Assistant Professor with the Departments of Laboratory Medicine and Pathology at both the UofA Faculty of Medicine and the Cumming School of Medicine at the University of Calgary. She has performed over 1200 autopsies since 2018. 2. General Matters [ 136 ] The Medical Examiner’s Office received Ms. Ribbonleg’s body on July 15, 2020. She was found to weigh 70 kg and to be 172 cm in height. The report stated that her appearance was “consistent with the documented age of 15 years.” 3. The Autopsy and Report [ 137 ] The autopsy was performed by Dr.

Pylyp Zolotarov on July 15, 2020 under the direct supervision of Dr. Dixon. Dr. Zolotarov had recently started his fellowship in forensic pathology at the Medical Examiner’s Office. [ 138 ] The Autopsy Report stated that Ms. Ribbonleg’s immediate cause of death was ligature strangulation. [ 139 ] Significant contributing conditions were blunt force injuries to the head. [ 140 ] Examination and testing disclosed no other causes or contributions to death. [ 141 ] The manner of death was classified as homicide. (

a) Ligature Strangulation [ 142 ] Ms. Ribbonleg’s neck disclosed a ligature furrow around the front and sides of the neck, but not extending to the back of the neck. There was associated hemorrhage to the anterior neck muscles on both sides of the neck and the thyroid cartilage. The hyoid bone was not fractured but it was disrupted. Because of Ms. Ribbonleg’s age, the hyoid bone was not ossified. It disclosed a hemorrhage at the bottom right corner, caused when Ms. Ribbonleg was still alive. [ 143 ] Dr. Dixon stated that a “ligature” is a linear item used to apply pressure, in this case to the neck. Dr.

Dixon confirmed that a ligature could be an item of clothing. [ 144 ] When asked about the width of the strap of the bra Ms. Ribbonleg had been wearing, Dr. Dixon stated that it was difficult to

comment (the strap was not set against e.g. a ruler). [ 145 ] Dr. Dixon confirmed that the bra strap “could be consistent with causing that ligature furrow.” [ 146 ] The ligature furrow was 24 cm long and about 1 cm wide. The “furrow” was an abrasion. The ligature put pressure on the skin, leaving a mark. [ 147 ] The cause of death was strangulation because of the compression of the arteries in the neck, rather than by crushing the airway. Consciousness is lost very quickly once the blood vessels are compressed, in 10-12 seconds. Death follows if the pressure lasts longer. Dr.

Dixon testified that it is difficult to give an exact time, but the pressure blocking the arteries sufficient to cause death would be at least 100 seconds, about a minute and a half to 2 minutes. The time could be shorter for physiologically vulnerable victims. (

b) Blunt Force Injuries [ 148 ] There were injuries to Ms. Ribbonleg’s head, including her scalp and side of her head, to her face (injuries to the area around her eyes), her neck, and left upper left chest, left anterior shoulder, and left anterior arm. [ 149 ] There was injury to the deeper layers of scalp onto the skull bone, to the connective tissue on the bone (subgaleal contusion). On the right side, there was a deep contusion resulting in bleeding onto the skull bone and muscle. Significant bruising was visible on her body and on her face. [ 150 ] The bruising on Ms.

Ribbonleg’s left upper chest was at the clavicle area, with smaller bruising trailing along her shoulder. [ 151 ] The injuries around her eyes included lacerations caused by blunt force. [ 152 ] There was also evidence of post-mortem puncture wounds on her face caused by birds. [ 153 ] The blunt force injuries would not, on their own, have caused death. (

c) Date of Death [ 154 ] The autopsy report form states that the date of death was July 12, 2020. That was the date Ms. Ribbonleg was found. No forensic tests were done to determine the time of death. [ 155 ] In cross-examination, Dr. Dixon said that she would not confirm the time of death. It is difficult to pinpoint. A lot of environmental factors were at play. 4. Swabs [ 156 ] An autopsy technician took swabs from Ms. Ribbonleg. This was a sexual assault kit. The swabs included a deep vaginal swab. See First ASoF at paras 32-34.

The swabs were sent for analysis at the Forensic Science and Identification Services Laboratory in Edmonton. 5. Additional Examination [ 157 ] A vaginal speculum examination was performed and showed no injuries. [ 158 ] In cross-examination, Dr. Dixon confirmed that Ms. Ribbonleg showed no injury to her vagina or anus. The anus was not damaged and there was no evidence of bruising. [ 159 ] When asked whether there any signs of forced intercourse, Dr. Dixon stated that “non-consensual” intercourse does not always leave evidence. But she confirmed that she did not see any relevant injury. 6.

Date of Death and Date of Sexual Activity [ 160 ] Dr. Dixon confirmed that it is hard to pinpoint the relationship of the time of sexual activity and time of death. [ 161 ] She confirmed that biological samples relating to sexual activity can exist for days in the vagina or anus. 7. Clothing and Personal Property [ 162 ] When Ms. Ribbonleg was received by the Medical Examiner’s Office, her shirt was pushed up. Her pants were undone. Her bra was out of place.

It was pushed up to her upper chest region, was twisted to the right, and was tight against her right side beneath her arm. [ 163 ] One detail relating to Ms. Ribbonleg’s clothing and personal property received with Ms. Ribbonleg’s body: She was in possession of a white USB charger cable. D. Forensic Science and Identification Services Laboratory Reports 1. Ms. Meagan Clark

[ 164 ] Ms. Clark holds a BSc (Molecular Genetics) from the University of Alberta and an MSc in Forensic Science from Staffordshire University, UK. She has been a Reporting Scientist with the RCMP National Forensic Laboratories since 2006, first in Regina and now in Edmonton. She is the team lead for the Biology Section. In 15 years as a Reporting Scientist, she has prepared about 15,000 reports. She has testified at least 36 times in Provincial Court and the Court of Queen’s/King’s Bench or Supreme Court in Alberta, Saskatchewan, Manitoba, New Brunswick, Newfoundland and Labrador, and British Columbia. 2.

STR Analysis and Random Match Probability [ 165 ] Analysis is done of “genomic DNA.” This is found in the nucleus of most cells in the human body. The RCMP uses short tandem repeat analysis. At specific areas in the DNA sequence, there are regions that are highly variable. The variability is used to discriminate or differentiate individuals. It is very discriminatory.

The variable features used for differentiation are not attributed to any phenotypic result. [ 166 ] For two DNA profiles to be considered a match, the profiles must be identical. [ 167 ] If a match is determined between an unknown sample (e.g. from a crime scene) and a known sample, a statistical calculation is made respecting “random match probability.” Ms. Clark referred to this as the “forensic weight” of the match.

The calculation quantifies the likelihood that the individual contributing the unknown sample was not the provider of the known sample, but a random individual who happened by chance to share the same DNA profile as the provider of the known sample. [ 168 ] The random match probability relies on a population database. The RCMP uses four population databases, the Canadian Caucasian database and three Indigenous databases. [ 169 ] The reports in this case relied on the Caucasian database, since Caucasians are the majority population and any random match individual would likely be Caucasian. [ 170 ] Ms.

Clark stated that even if a different database were relied on, the probability differences would be very minimal. There may be a statistical difference but not a forensic difference. If a random match is rare in one database, it will be rare in all. [ 171 ] Ms. Clark said the database selection is independent of the particular facts of a case.

It doesn’t matter what the suspect or complainant identify as, since the statistical calculation concerns the likelihood of a match with a completely random individual. [ 172 ] No issue was raised respecting the database used in this case or respecting STR analysis. (See R v Abdulkadir , 2022 ABKB 700 at paras 669-679 .) There were no other challenges to Ms. Clark’s explanation of the DNA analysis processes. 3. Reports [ 173 ] Ms.

Clark prepared two reports entered as exhibits at trial, exhibit 16 (the August Report) and exhibit 17 (the October Report). [ 174 ] Sampling and processing were conducted in accordance with established methods and procedures. No concerns were raised respecting those procedures or respecting any procedures or the integrity of evidence prior to delivery to the National Forensic Laboratory. (

a) August 12, 2020 Report [ 175 ] The August Report addressed swabs obtained from Ms. Ribbonleg, two swabs from a vehicle, and a known sample from Ms. Ribbonleg, as well as a known sample of “other.” See First ASoF at paras 32-37. (

i) Matches to Ms. Ribbonleg Only [ 176 ] Right hand swabs/fingernail clippings were submitted for DNA analysis. The Report stated that the DNA typing profiles matched the known sample of Ms. Ribbonleg (only): Conclusion 1. [ 177 ] The same result was obtained for some left hand swabs/fingernail clippings (areas AC, AD, AE, AF, and AH) and swabs of the mouth area: ibid. [ 178 ] The DNA typing profile obtained from a left hand swab/fingernail clippings (area AG) was of mixed origin consistent with having originated from two individuals. The major component matched the known sample of Ms. Ribbonleg.

The profile of the trace component contained limited genetic information and no meaningful comparison could be made to any samples: Conclusion 2. [ 179 ] The DNA typing profile obtained from vaginal/anal swabs and public hair combing (area AE) was of mixed origin consistent with having originated from two individuals. The profile of the major component matched the known sample of Ms. Ribbonleg.

No meaningful comparison could be made to the minor male component: Conclusion 5. (ii) No Matches [ 180 ] The DNA typing profile from right nipple swabs was of mixed origin, consistent with having originated from two individuals. However, “[d]ue to a contamination event during processing, this profile is not suitable for further

interpretation:” Conclusion 8. [ 181 ] No human DNA was obtained from the two vehicle swabs, left hand swabs/fingernail clippings area AA, or swabs of the neck, face, and mouth areas AA and AD: Conclusion 7.

[ 182 ] The quantity of human DNA obtained from the following exhibits did not meet the minimum requirement for further processing: right hand swabs/fingernail clippings, areas AA and AB; left hand swabs/fingernail clippings, area AB; swabs of neck, face, and mouth, areas AB, AC, and AF; and right nipple swabs, area AA: Conclusion 6. (iii) Ms. Ribbonleg and Male 1 Profile [ 183 ] The DNA typing profiles for vaginal/anal swabs and pubic hair combing, areas AA (swab vaginal wet), AC (swab labia minora wet), and AD (swab anal wet) were of mixed origin consistent with having originated from two individuals.

The profiles of the female components matched Ms. Ribbonleg. The donor of the known sample “other” was not the source of these unknown profiles. The profiles of the male components were of an unknown male individual, Male 1: Conclusion 3, First ASoF at para 36. [ 184 ] The DNA typing profile obtained from vaginal/anal swabs and pubic hair combing, area AB (swab labia majora wet) was of mixed origin consistent with having originated from two individuals. Assuming that the donor of the female component was Ms.

Ribbonleg, the profile of the other contributor was an unknown male individual, Male 1: Conclusion 4, First ASoF at para 36. (

b) DNA Sample from Mr. Tallcree [ 185 ] On August 17, 2020, the RCMP obtained a warrant to take bodily substances for DNA analysis from Mr. Tallcree, pursuant to s. 487.05(1) of the Criminal Code . On August 20, 2020, a blood sample was taken from Mr. Tallcree. This was sent for DNA analysis: First ASoF paras 38-47. (

c) October 6, 2020 Report [ 186 ] The October Report compared the DNA profile for the blood sample originating from Mr. Tallcree with the DNA profile of Male 1, the male contributor referred to in Conclusions 3 and 4 of the August Report. [ 187 ] With regard to August Report conclusion 3, the October Report stated that The profiles of the male components, previously designated as Male 1, match that of the known sample [originating from Mr. Tallcree].

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 8.0 sextillion. [8 with 21 zeros] [ 188 ] With regard to August Report Conclusion 4, the October Report stated that Assuming that [Ms. Ribbonleg] is one of the contributors to this mixed profile, then the profile of the other contributor matches that of the known sample [originating from Mr. Tallcree].

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 210 million. [ 189 ] I therefore conclude that Mr. Tallcree’s DNA was found at the locations on Ms. Ribbonleg’s body represented by vaginal/anal swabs and pubic hair combing areas areas AA, AC, AD, and AB. (

d) The Third Report [ 190 ] Ms. Clark mentioned in chief and was questioned in cross-examination about a third report. This report was not in evidence. It appears that it concerned swabs taken from the seized quad. From Ms. Clark’s responses in cross-examination, I understand that from some of these swabs no human DNA was recovered. Respecting other swabs, the quantity of DNA did not meet the requirements for further processing. No DNA profiles were obtained from those swabs. It follows that there was no DNA link between Ms. Ribbonleg and the seized quad. 4.

Testing for Semen [ 191 ] None of the exhibit areas that yielded matches to Mr. Tallcree’s DNA profile were tested for the presence of semen. Ms. Clark stated that the RCMP laboratory no longer does semen testing upfront. It is no longer standard procedure. It appears that the microscopic testing procedure is very time-consuming. [ 192 ] However, the process leading to the revealing of DNA profiles involved “differential extraction.” Sperm cells are separated from epithelial cells. A first step “digests” the epithelial cells. The process depends on the “hardier” or denser nature of sperm cells.

The process breaks down the epithelial cells first, leaving the intact and heavier spermatozoa to be separated out by a centrifuge. [ 193 ] It is true that the presence of semen can be definitely established by microscopic examination. [ 194 ] In Ms. Clark’s opinion, though, because the differential extraction method was used and based on the DNA profiles generated, spermatozoa were present in the samples. [ 195 ] In cross-examination, Ms. Clark confirmed one cannot tell from a DNA sample what cell the sample came from.

She was then asked whether there was any way to confirm that the DNA in this case came from sperm. Ms. Clark reiterated her view that the differential extraction process used and the results achieved showed that sperm was separated from epithelial cells. [ 196 ] In Ms. Clark’s opinion, there was strong evidence that semen was present, based on what she was seeing in the profiles and the use of the differential extraction method. [ 197 ] She agreed that the only conclusive way to determine the presence of sperm was through visual/microscopic inspection. But,

she continued, there is “really strong evidence here.” She disagreed with the proposition that the evidence of sperm as the source of themale DNA was “far from conclusive.” She nonetheless acknowledged that she could not say with 100% certainty that the source of themale DNA was sperm. She resisted assigning a percentage to her degree of certainty. She returned to her view that, based on herexperience and the principles behind what she was seeing, in her opinion, the source of the male DNA was spermatozoa. She had an“incredibly strong reason” to believe this.

She agreed with counsel’s suggestion that her conclusion was “more likely than not.” [198] Ms. Clark was cross-examined respecting August Report Conclusion 4, which considered area AB disclosing a DNA profile ofmixed origin. It was suggested to Ms. Clark that the separation process for this sample showed that the male DNA could not haveoriginated from semen, since it separated with female DNA which would not have come from semen. Ms. Clark’s response was that it istrue that this sample suggested that the male DNA was epithelial in origin.

That conclusion, though, did not mean that the other maleDNA profiles were also epithelial and not derived from spermatozoa. The other three instances produced different results implying thatspermatozoa was present. The scientific principles and the results she was seeing indicated that to her. 5. Degradation of DNA [199] Ms. Clark was asked whether, if a sample were obtained from the vaginal cavity of a deceased individual, DNA degradation ofthat sample would be expected. Ms.

Clark’s short answer was “Yes.” Any biological material on a surface is subject to degradation.Degradation, though, is hard to quantify. [200] In this case, the DNA results were of good quality. Full profiles were generated. Had degradation occurred, information wouldhave been lost. There would have been incomplete profiles. 6. Limitations of DNA Evidence [201] In cross-examination, Ms. Clark confirmed that DNA analysis did not determine how male DNA got onto Ms. Ribbonleg. [202] Ms. Clark confirmed that she cannot determine when male DNA got onto Ms. Ribbonleg. [203] She agreed that DNA can last a long time.

She agreed that it was possible that the male DNA found on Ms. Ribbonleg had beenthere for hours or days. She said that the longer time goes out, though, the less likely that DNA will be recovered. She said that muchdepends on how a sample was stored, the conditions under which it was stored, the temperature of the storage environment, and theamount that was there to start with. III. Assessment A. Common Offence Elements [204] The offences have some common elements. [205] Each offence requires that jurisdiction be established. All the events occurred in John D’Or Prairie, Alberta.

That wasconfirmed by multiple witnesses. This element of each of the offences is established beyond a reasonable doubt. [206] Identity in the sense that Mr. Tallcree was the individual who is the subject of the counts in the Indictment and who has beenbefore the court on those charges was also satisfied. Mr. Tallcree was identified by several witnesses, including Willard Tallcree, LennoxWapoose, Joe Tallcree, and Louise Tallcree. This element of each of the offences is established beyond a reasonable doubt.

Identity inthis sense is distinguished from identity in the sense of being found to be the perpetrator of an offence. [207] Each offence specified a date, “on or about the 5th day of July, 2020.” One of the challenges of this prosecution is that Ms.Ribbonleg was last seen on July 5 and not discovered until July 12. That creates the possibility that a determination could be made thatan offence occurred on a date after July 5 and before the time that searchers reached the area near where Ms. Ribbonleg lay on July 12.That prospect would not preclude a conviction, should a conviction otherwise be warranted.

Under s. 601(4.1) of the Criminal Code,

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribedperiod of limitation, if any …. I also note s. 581(3):

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information withrespect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence orinsufficiency of details does not vitiate the count. [208] In R v Douglas, (SCC), [1991] 1 SCR 301, Justice Cory wrote at 314 that From these cases it can be seen that an indictment is adequate if it contains sufficient details to give the accused reasonable informationwith respect to the charge and to enable the accused to identify the transaction so as to permit the adequate preparation of the defence.Whether an indictment is sufficient will depend on the offence charged and the facts of the case.

Time is not required to be stated withexact precision unless it is an essential part of the offence charged and the accused is not misled or prejudiced by any variation in timethat arises. [emphasis added]

[209] See also R v SM, 2017 ONCA 878 at para 10; R v SD, 2011 SCC 14, Binnie J at para 1; and R v GB, (SCC),[1990] 2 SCR 30, Wilson J at 49 and 52-53: This longstanding rule of the common law is summarized by Ewaschuk J. in his text Criminal Pleadings and Practice in Canada (2nded. 1987) at para. 9:10050 as follows: From time immemorial, a date specified in an indictment has never been held to be a material matter.

Thus the Crown need not prove thealleged date unless time is an essential element of the offence or unless there is a specified prescription period. [Emphasis added.] From the foregoing, it is clear that it is of no consequence if the date specified in the information differs from that arising from theevidence unless the time of the offence is critical and the accused may be misled by the variance and therefore prejudiced in his or herdefence.

It is also clear from Dossi and other authorities that the date of the offence need not be proven in order for a conviction to resultunless time is an essential element of the offence. Accordingly, while it is trite to say that the Crown must prove every element of theoffence in order to obtain a conviction, it is, I believe, more accurate to say that the Crown must prove all the essential elements. TheCrown need not prove elements which are, at most, incidental to the offence.

What the Crown must prove will, however, of necessityvary with the nature of the offence charged and the surrounding circumstances. . . . . In my view, the following conclusions can be drawn from the authorities: 1. While time must be specified in an information in order to provide an accused with reasonable information about the charges broughtagainst him and ensure the possibility of a full defence and a fair trial, exact time need not be specified.

The individual circumstances ofthe particular case may, however, be such that greater precision as to time is required, for instance, if there is a paucity of other factualinformation available with which to identify the transaction. 2. If the time specified in the information is inconsistent with the evidence and time is not an essential element of the offence or crucialto the defence, the variance is not material and the information need not be quashed. 3.

If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, theinformation need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial tothe defence. 4. If the time of the offence cannot be determined and time is an essential element of the offence or crucial to the defence, a convictioncannot be sustained.

Accordingly, when a court is faced with circumstances in which the time of the offence cannot be determined with precision or theinformation conflicts with the evidence, the first question that must be asked is whether time is either an essential element of the offenceor crucial to the defence. It will only be in cases where this first question is answered affirmatively that the trier of fact must thendetermine whether the time of the offence has been proven beyond a reasonable doubt.

If the answer to the first question is in thenegative, a conviction may result even although the time of the offence is not proven, provided that the rest of the Crown’s case isproven beyond a reasonable doubt. [210] In this case, the time of an offence is not an essential element of the offence. I acknowledge that the temporal relationshipbetween offences is important, but whether the offences occurred on a particular date in early July, 2020 makes no difference. [211] In addition, the entire period from early July to July 12 when Ms. Ribbonleg was found was under review and scrutinized at thetrial. Mr.

Tallcree could suffer no prejudice whatsoever by a determination that the offence date was after July 5 but before early July 12.Only a week from July 5 is in question. B. Sexual Interference [212] Count 2 of the Indictment alleges that Mr. Tallcree did, on or about the 5th day of July, 2020, at or near John D’Or PrairieAlberta, touch Ms. Ribbonleg, a person under age 16, contrary to s. 151 of the Criminal Code. 1. The Offence [213]

Section 151 reads as follows: 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the bodyof a person under the age of 16 years (

a) is guilty of an indictable offence .... [214] Subsections 150.1(1) and (4) are pertinent: 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 ... in respect of a complainantunder the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.[emphasis added] None of the exceptions in subsections (2) to (2.2) (or (2.3) or (3)) are engaged.

(4) It is not a defence to a charge under

section 151 ... that the accused believed that the complainant was 16 years of age or more at the

time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant . [emphasis added] [ 215 ] The Crown must prove each of the following essential elements of sexual interference beyond a reasonable doubt, in addition to jurisdiction and date: 1. Ms. Ribbonleg was less than sixteen years old at the time; 2. Mr. Tallcree intentionally touched Ms. Ribbonleg, either directly or indirectly; and 3. the touching was for sexual purpose. 2. Jurisdiction [ 216 ] As indicated, jurisdiction is established beyond a reasonable doubt.

There was no evidence to suggest that Ms. Ribbonleg was ever out of John D’Or Prairie at any material time. 3. Age [ 217 ] Ms. Ribbonleg was 15. That was accepted in para 1 of the First ASoF. Mr. Tallcree was 35. 4. Touching for a Sexual Purpose [ 218 ] The intentional touching and touching for a sexual purpose elements rely on the same evidence. [ 219 ] Mr. Tallcree’s DNA was found in Ms. Ribbonleg’s vaginal, labia minora, labia majora, and anal areas. (

a) Innocent Transfer [ 220 ] The Defence suggested that because Ms. Ribbonleg had been sleeping on the bed in the hut, DNA from Mr. Tallcree could have transferred to her. [ 221 ] It is true that biological material can be deposited on a surface at one time and can attach to a third party who touches that surface at a later time. Further, biological material could be transferred to another person who touches or gets close to a surface and transfers the first person’s biological material to that surface. That material may attach to a third party who touches the surface.

It is also true that very small amounts of biological material may permit the generation of a DNA profile. [ 222 ] Nonetheless, I view the Defence suggestion as speculative, as raising a possibility not grounded in the evidence. There was no evidence that Mr. Tallcree slept in or otherwise had contact with the bed in the hut. Mike was Mr. Tallcree’s brother. Some of Mr. Tallcree’s biological material could have been deposited on Mike and transferred, but there was no evidence that Mike had been in the bed prior to Ms. Ribbonleg sleeping in the bed.

There was also no evidence about when the bed coverings were last cleaned. If some of Mr. Tallcree’s biological material was transferred to Ms. Ribbonleg from the bed, then biological material from other individuals would have been transferred to her. There was no evidence that any other individual’s DNA was transferred to her except Mr. Tallcree’s. [ 223 ] Further, while it is true that small amounts of biological material will support DNA profiling, this case demonstrates that even prolonged contact does not necessarily result in the deposit of biological material sufficient for DNA profiling. Mr.

Tallcree operated the seized quad but the swabs of the quad disclosed no material from which DNA profiles could be generated. [ 224 ] Finally, the Defence pointed to no evidence that could explain how Mr. Tallcree’s DNA ended up where it did on Ms. Ribbonleg if the mode of transmission was her lying on a bed. [ 225 ] The Defence did not call expert evidence respecting these matters. [ 226 ] I find, beyond a reasonable doubt, that the transfer of Mr. Tallcree’s biological materials to Ms. Ribbonleg did not occur because of Ms. Ribbonleg’s contact with the bed in the hut. (

b) Means of Transfer [ 227 ] Ms. Clark was cross-examined on the issue of whether the source of the DNA found on Ms. Ribbonleg was spermatozoa. [ 228 ] This cross-examination supported no reasonable doubt respecting whether Mr. Tallcree touched Ms. Ribbonleg. [ 229 ] First, the sexual interference offence does not require proof of touching with a specific body part. If the DNA were deposited by Mr. Tallcree’s hand, this element of the offence would be as much satisfied as if Mr. Tallcree had sexual intercourse with Ms. Ribbonleg. [ 230 ] Second, I accept Ms. Clark’s opinion that the source of the DNA on Ms.

Ribbonleg was Mr. Tallcree’s sperm. The differential extraction technique depends on the distinction between spermatozoa and epithelial cells. The generation of the DNA profiles in the instances other than the AB area coupled with the biological principles forming the backdrop of differential extraction demonstrated that the source of the DNA profiles was spermatozoa. I add that this opinion was well within the scope of Ms. Clark’s expertise. As for the AB area that generated a DNA profile of mixed origin, that is readily explicable as showing that the source of Mr. Tallcree’s DNA was epithelial.

His skin came into contact with her body. That would be correlated with the transfer of sperm to her. [ 231 ] I have taken into account Ms. Clark’s caution in expressing her opinion about spermatozoa as the source of the DNA. She did

not express 100% certainty but was nonetheless very sure. [232] The mode of transmission of Mr. Tallcree’s DNA to the body of Ms. Ribbonleg is not an essential element of the offence ofsexual interference. It follows, in my opinion, that whether the source of the DNA was spermatozoa need not be established beyond areasonable doubt. The standard of proof beyond a reasonable doubt applies at the end of the trial and is applied to all the evidence.

Thatstandard of proof does not apply to individual items of evidence or proof of individual facts that do not constitute (or constitute elementsof) the actus reus or fault element of an offence or that do not carry the potential to be conclusive of guilt. “[I]t is an error of law tosubject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole:” Rv Lemay, 2020 ABCA 365 at para 27; R v JMH, 2011 SCC 45, Cromwell J at para 31; R v Morin, (SCC), [1988] 2 SCR345, Sopinka J at 360-361. I accept that the DNA transferred to Ms.

Ribbonleg, other than that on the swabbed area AB, was obtainedfrom spermatozoa. [233] Further, if the source of the DNA must be decided beyond a reasonable doubt, the requirement that the Crown prove its case“beyond a reasonable doubt” does not require proof beyond “any” doubt. It is not a standard of absolute certainty, even though proofbeyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: R v Starr, 2000 SCC 40,Iacobucci J at para 242.

On the evidence and particularly given the absence of any contrary expert evidence, I am satisfied beyond areasonable doubt that the source of the DNA on Ms. Ribbonleg, other than as detected on swabbed area AB, was Mr. Tallcree’s sperm. (

c) Touching for a Sexual Purpose [234] The determination that Mr. Tallcree’s sperm was on Ms. Ribbonleg’s body supports the further conclusion that he had sexualintercourse with her. That was how the sperm was deposited on her. I find that there is no other rational or reasonable inference. [235] The determination that Mr. Tallcree had sexual intercourse with Ms. Ribbonleg supports, beyond a reasonable doubt, theinferences that Mr. Tallcree touched Ms. Ribbonleg and touched her for a sexual purpose. The purpose is inferred from the act.

Again, Ifind that there is no other rational or reasonable inference. [236] Dr. Dixon confirmed in cross-examination that Ms. Ribbonleg showed no signs of injury caused by sexual contact. She alsostated, though, that even if sexual contact was forced on a victim, there may be no injury. [237] The absence of injury caused by sexual contact is irrelevant to the sexual interference offence. The absence of injury supportsno defence. (

d) Identity [238] A further determination is that the essential element of identity is satisfied beyond a reasonable doubt. Mr. Tallcree’s DNA wason Ms. Ribbonleg. The evidence supports no conclusion other than it was Mr. Tallcree who deposited the DNA, through having sexualintercourse with Ms. Ribbonleg. 5. Mens Rea or Fault [239] There was no evidence to support any inference that Mr. Tallcree had a belief that Ms. Ribbonleg was age 16 or older or thatMr. Tallcree took any steps to ascertain Ms. Ribbonleg’s age, as contemplated by s. 150.1(4).

Given the absence of evidence, I could notinfer and I do not infer that it was reasonably possible that Mr. Tallcree believed Ms. Ribbonleg was over age 16 or that Mr. Tallcree tookall reasonable steps to ascertain her age. See R v Angel, 2019 BCCA 449, leave app dismissed (SCC), Fisher andAbrioux JJA at para 31(BCCA): “the offence in s. 151 does not engage the accused’s belief as to the complainant’s age as an element ofthe offence in the absence of the mistake of age defence being raised.” [emphasis added] I therefore find, beyond a reasonable doubt, thatby touching Ms.

Ribbonleg for a sexual purpose when she was under age 16, Mr. Tallcree had the fault or mens rea requisite forconviction for the s. 151 offence. See also R v George, 2017 SCC 38, Gascon J at para 8: [8] At common law, “true crimes” - like those at issue here - would have a purely subjective fault element. However, throughstatutory intervention, Parliament has imported an objective element into the fault analysis to enhance protections for youth (Stewart, atpp. 4-23 and 4-24).

As a result, to convict an accused person who demonstrates an “air of reality” to the mistake of age defence, theCrown must prove, beyond a reasonable doubt, either that the accused person (1) did not honestly believe the complainant was at least 16(the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element) (Stewart, atp. 4-24; M. Manning, Q.C., and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at p. 1113 .... ). In this case, Mr.

Tallcree did not even provide the foundation for an “air of reality” to the mistake of age defence. [240] I acknowledge the current controversy about the nature of the mens rea for the sexual interference offence and the availabilityof mistake of fact about a complainant’s age to negate that mens rea. This controversy concerns whether and how Justice Moldaver’sdecision in R v Morrison, 2019 SCC 15 at paras 81-91 and 101-102 affects the George approach to ss. 151 and 150.1(4).

Counsel madeno submissions respecting this controversy or the mens rea for the offence and this is not an appropriate case for me to contribute to thecontroversy. [241] I do note that in R v DS, 2023 ABKB 154 at para 11, Justice Lema determined that George still applies, “with full force:” [11] For the reasons outlined in Angel (paras 22-52) and [R v Jerace, 2021 BCCA 94] (paras 34-41), and noting that the SCC deniedleave in both cases ( and , respectively), and emphasizing that George and Morrison involvedprovisions with different wording (the latter addressing para 172.1(1)(

b) of the Criminal Code i.e. child luring), and finding that [R vCarbone, 2020 ONCA 394, Doherty JA] unduly narrows the failure-to-take-all-reasonable-steps pathway to conviction, contrary to theclear (two-pathway) wording of ss. 150.1(4) (as well explained by Professor Isabel Grant in The Slow Death of the Reasonable Steps

Requirement for the Mistake of Age Defence , (2021) 44 Man LJ 4 at 1-31), I find that George still applies, with full force, to the mistake- of-age defence in a sexual interference context i.e. its two-pathways approach continues to be correct notwithstanding Morrison . As a matter of comity and law, I would not depart from Justice Lema’s assessment. It follows from that assessment that in the absence of any evidence giving rise to a reasonable doubt respecting Mr. Tallcree having a belief that Ms. Ribbonleg was at least age 16 or respecting Mr.

Tallcree having taken any reasonable steps to ascertain her age, the mens rea for the s. 151 offence is established beyond a reasonable doubt. [ 242 ] I would draw the same conclusion concerning Mr. Tallcree’s mens rea for this offence if the Carbone approach applied. At para 128 of Carbone , Justice Doherty wrote as follows: [128] The treatment of George by the majority in Morrison makes it clear that the Crown cannot prove the requisite mens rea for offences set out in s. 150.1(4) by disproving the defence created by that section.

To convict, the Crown must prove the accused had the requisite state of mind with respect to the complainant’s underage status. For the reasons set out above, I am satisfied it includes recklessness as to the age of the complainant . [emphasis added] Justice Doherty included as recklessness the accused’s failure to turn his mind to the complainant’s age.

At paras 122 and 126, Justice Doherty wrote as follows: [122] Assuming the defence of mistaken belief the complainant was 16 or over has been rejected, three possible states of mind remain: - the accused may have believed or been wilfully blind to the fact that the complainant was under 16; - the accused may have appreciated the risk the complainant was under 16 and decided to proceed with the activity; and - the accused may never have a

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