R v Cochrane, 2023 ABKB 666

Court of King’s Bench of Alberta Citation: R v Cochrane, 2023 ABKB 666 Date: 20231127 Docket: 201267853Q1 Registry: Calgary Between: His Majesty the King Crown - and - Leonard Brian Cochrane Accused Corrected judgment: A corrigendum was issued on November 27, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice K.D. Yamauchi _______________________________________________________ I.

Introduction [ 1 ] The Crown charged the Accused Leonard Brian Cochrane with the following: 1. That he, on or about the 11th day of July, 1994, at or near Calgary, Alberta, did unlawfully cause the death of Barry Buchart, thereby committing first degree murder, contrary to section 235(1) of the Criminal Code of Canada . 2. That he, on or about the 11th day of July, 1994, at or near Calgary, Alberta, did unlawfully cause the death of Trevor Deakins, thereby committing first degree murder, contrary to section 235(1) of the Criminal Code of Canada . [ 2 ] This Court heard the trial of this matter.

These are the reasons for its decision. II. Evidence [ 3 ] The Crown presented a number of police, expert, and civilian witnesses. Many of the witnesses were not necessary given the way in which the trial of this matter unfolded. This Court will provide only brief synopses of the evidence of some of the witnesses to

give an idea of the reason they were presented as witnesses. It should be clear why their evidence is not necessary for the purposes of this Court’s decision. A. Police Witnesses [ 4 ] Cst. Robert Snape was a member of the Calgary Police Service (“CPS”) stationed in the Forest Lawn area of Calgary. Cst. Snape and his partner received a call to attend at the east side lower unit of [**] 10 Avenue SE in Calgary (the “Residence”) for a “shots fired” or a weapons-type complaint. The property was in a fourplex with two up and two down units. [ 5 ] Cst. Snape entered the Residence through the east door.

The outside screen door was open. The inside wooden door was closed but it was unlocked. He located two deceased bodies in the living room. Cst. Snape maintained continuity of bodies, but he did not touch them. He stood in one place and made his observations and notes. He moved nothing. [ 6 ] One of the deceased was a white male who had a shaved side of his head and ponytail coming out of the back. He was five feet two inches tall, about 130 pounds, and was wearing a red sweatshirt, blue jeans, and grey work socks.

He was lying on his back in a “begging position” with his hands up, and his legs were splayed behind and to the sides of his body in a folded position. Cst. Snape described this as a “butterfly position.” The deceased had a wound under his left arm. [ 7 ] The other deceased was a white male who was six feet tall and about 300 pounds, wearing red shorts, a grey short-sleeved shirt, and white socks. He had brown hair and had a larger wound to the side of his head. His head was under a coffee table and there was a machete beside his body with blade slightly under his belly.

The rest of the machete was visible. [ 8 ] The living room looked as though there had been a fight. The drywall on the north wall was smashed in and there was a hole in south wall. There was one bullet on the coffee table and one shell casing on the floor beside the coffee table. [ 9 ] George Malcolm Bushell is a retired CPS detective. In July of 1994, he was a member of the Homicide Unit. On July 11, 1994, Det. Bushell was directed to attend at the Residence. He arrived at 4:20 a.m., along with his partner. Det. Bushell was the primary investigator. [ 10 ] While at the crime scene, Det.

Bushell noticed a trail of blood that led from the door of the Residence, south towards the alley behind the Residence, and then turned west along the alley for some distance. This blood trail was significant to Det. Bushell, as it appeared to him that “quite an altercation took place in the basement, which was indicated by blood on a machete and blood on clothing of the deceased and on the floor of the duplex, and there was a taser found.” To him, there had been “a physical fight,” which resulted in injuries to those involved. He advised the crime scene investigators of his observations. The Crown provided Det.

Bushell with photographs of the outside of the Residence, which showed the blood trail that he had earlier described which extended from the Residence to and up the alley. [ 11 ] During cross-examination, Det. Bushell testified that he spent time looking for a blue truck, but there were many blue trucks in Alberta at that time. He was also aware that Mr. Buchart was dealing drugs, but Mr. Deakins was not. [ 12 ] Cst. Colin Neill was with the CPS forensic identification unit. His role was to attend crime scenes, collect evidence, and seize exhibits.

He was assigned the primary in the case at bar, so he took photographs of the crime scene, and attended at the autopsies, where he collected exhibits and took photographs. He would assign numbers to the exhibits he seized which began with his initials “CN.” [ 13 ] Cst. Neill arrived at the Residence at 4:30 a.m. His focus was the Residence. He described the general layout of the Residence using a diagram that was made an exhibit in these proceedings. [ 14 ] Sgt. Gard took a video of the area around the Residence and the Residence itself, which was shown in open court. Cst. Neill described the video in detail.

Cst. Neill also described each photograph in the photo book in detail. Of particular interest in the photo book were the blood stains on the walls, on the door leading out of the Residence and the fourplex, and on the floor of the Residence. As well, the machete that was under Mr. Buchart contained blood. Cst. Neill recovered several blood samples, and seized the actual items on which the samples were located. These included two blood droplets on the landing leading out of the Residence (CN-1), and blood running along the “nose” of the upper stair (CN-3).

He identified photographs that showed the trail of blood from the Residence to the alley and down the alley and seized blood on a stone found in the back alley behind the Residence (CN-24). [ 15 ] Cst. Neill described many other items that he seized. Most of them were made exhibits in these proceedings including the machete, ten shotgun pellets, a live bullet, and a shell casing. The shotgun pellets were found in various locations around the Residence, including one on Mr. Deakins’s body, and some embedded in walls and the ceiling. There were also some pellets mixed in with clothing found on one of the beds.

The shotgun pellets were not located in one location within the Residence. He also seized two pairs of damaged glasses and a balaclava which was found under a picture that was on the floor. In one photograph, Cst. Neill pointed to drug paraphernalia located on the kitchen counter, which included a scale and baggies. [ 16 ] Cst. Neill pointed out the location of various blood spatters in the Residence in and around the victims’ bodies and other locations within the Residence in which he located potential blood. The eighty-eight photographs that Cst.

Neill presented to this Court were not all the photographs that he took. Mr. Cochrane’s counsel presented several other photographs that Cst. Neill had taken, some of which showed areas where there were potential blood samples. Cst. Neill did not, however, swab or scrape every area that contained blood for a sample. The Crown provided this Court with a lengthy list of the blood samples that Cst. Neill did seize.

He testified that he did not submit all those samples to the Royal Canadian Mounted Police (“RCMP”) crime lab, as it would accept only a finite number of blood samples to test, barring additional information or outcomes from previous tests. As well, back in the 1990s, the RCMP crime lab required large samples as it could not test small samples. [ 17 ] Cst. Neill seized a stun gun that was located under a chair in the Residence. On the stun gun’s electrodes were hair and blood, both of which Cst. Neill seized. A stun gun creates an electric shock between two electrodes that can incapacitate a person. When he

recovered the stun gun, it was in the “on” position. [ 18 ] In the photographs, Cst. Neill also identified a number of bloody shoe prints. Although he took photographs of these, he did not take samples of the shoe prints for testing. [ 19 ] Neither Cst. Neill nor any other officer examined or went into the suite immediately upstairs from the Residence. Cst. Neill was not directed to examine the upstairs suite, nor was he advised that one of the perpetrators allegedly went into the upstairs suite. [ 20 ] Cst. Neill was present at the autopsies of Mr. Deakins and Mr. Buchart.

He took photographs and seized items during the autopsies, including the projectiles that Dr. Lloyd Denmark, the medical examiner, recovered from the bodies. Dr. Denmark identified a hair from the chest of one of the victim and hair from the hand of one of the victims. [ 21 ] CPS Sgt. Samuel Walter Schofield assigned Cst. Bodwell to execute a DNA warrant with respect to Mr. Cochrane. Both officers attended on Mr. Cochrane to execute the DNA warrant. Sgt. Schofield explained the procedure they used to obtain Mr. Cochrane’s DNA sample from him. There is nothing controversial about that procedure. Mr.

Cochrane provided his DNA sample without incident, which was provided on an “FTA card.” Cst. Bodwell placed identifying marks on the FTA card. The actual FTA card, and its markings were made an exhibit in these proceedings. Cst. Bodwell completed an exhibit label and made a request for the RCMP crime lab to accept and approve the sample for testing by completing a form for that purpose. Cst. Bodwell received an approval from the RCMP crime lab to have the exhibit analyzed. [ 22 ] On April 6, 2023, Cst. David Wilhelm was tasked by Det.

Ken Carriere to obtain an exhibit from the CPS exhibit and property room and take it to the RCMP crime lab. The exhibit was Exhibit 3922-01, an FTA card. He and Det. Carriere retrieved the exhibit, whereupon Cst. Wilhelm travelled to Edmonton non-stop and arrived at the RCMP crime lab. He turned the exhibit over to Chrystal Chant, who was a lab attendant, to the attention of Laura Reader. Cst. Wilhelm did not open the exhibit, and it was in his possession from the time he left the CPS exhibit and property room in Calgary, to the time he delivered it to Ms. Chant. [ 23 ] Cst.

Jason VanLuven’s obtained cast-off DNA evidence from Mr. Cochrane. The way he obtained that evidence and the evidence itself was the subject of a voir dire . For the purposes of the trial of this matter, there was nothing controversial with respect to Cst. VanLuven’s seizure of Mr. Cochrane’s cast-off DNA. Cst. VanLuven turned the cast-off DNA to Det. Carriere. B. Expert Witnesses 1. Dr. Akmal Coetzee-Khan [ 24 ] Dr. Akmal Coetzee-Khan’s expertise was admitted, along with his qualifications to provide expert evidence in forensic pathology.

Nonetheless, this Court entered a voir dire to satisfy itself concerning his qualifications. [ 25 ] Dr. Denmark, the physician who conducted the autopsies, was not available to provide this Court with his evidence concerning his final reports. As a result, Dr. Coetzee-Khan was standing Dr. Denmark’s stead. To undertake this task, Dr. Coetzee-Khan reviewed the entire files, including photographs, and Dr. Denmark’s final autopsy reports. He matched Dr. Denmark’s reports to the photographs and other reports to which the final reports referred. Dr.

Coetzee-Khan matched the injuries he saw in the photographs and the other reports to the conclusions Dr. Denmark reached to ensure that he agreed with those conclusions concerning the manner and cause of death. [ 26 ] After hearing his testimony during the voir dire and having no objection from Mr. Cochrane’s counsel, this Court qualified Dr. Coetzee-Khan to provide expert evidence in forensic pathology. In particular, it qualified him to provide opinion evidence on whether he agreed with the conclusions that Dr. Denmark reached concerning the manner and cause of death of each of Mr. Buchart and Mr.

Deakins. [ 27 ] Dr. Coetzee-Khan agreed with Dr. Denmark’s conclusion that Mr. Buchart died from a single gunshot wound to the front of the upper abdomen that penetrated his liver and caused the liver to be shattered into several pieces. The wound proceeded through Mr. Buchart’s aorta, which caused significant blood loss that led to Mr. Buchart’s death. There was a muzzle imprint around the entry wound which indicated that the weapon was pressed against Mr. Buchart’s skin. Before he died, Mr. Buchart would have gone into a shock state, known as hypovolemic shock, given the volume of his blood loss.

He might have survived for two to five minutes after being shot and would have been capable of saying, “I’m dying, I’m dying.” [ 28 ] Mr. Buchart also sustained several other injuries which would not, of themselves, have caused his death. There were laceration-type injuries to Mr. Buchart’s head which were the result of blunt force that causes the skin to split in an irregular manner. This injury could have resulted from being struck with a taser-type instrument. Mr. Buchart also had abrasions, which could be the result of the spark from an activated taser. This occurred ante-mortem. Dr.

Coetzee-Khan looked at the stun gun that was made an exhibit in these proceedings and confirmed that this type of instrument could have caused those injuries to Mr. Buchart’s head. [ 29 ] Dr. Coetzee-Khan agreed with Dr. Denmark’s conclusion that Mr. Deakins died from a shotgun wound to his chest. The wound entered the area underneath Mr. Deakins’s left armpit, passed through both lungs and heart, and exited the right side of his body. The wound goes from left to right, across the body from front to back, and downward. Mr. Deakins’s unusual body position indicated to Dr. Coetzee-Khan that Mr.

Deakins might have been on his knees when he was shot. 2. Sgt. David Glen Kessler [ 30 ] Mr. Cochrane’s counsel admitted Sgt. David Glen Kessler’s qualifications and expertise in the assessment and classification of firearms and ammunition, physical matching and comparison, and range determination. Nonetheless, this Court entered a voir dire to satisfy itself of his qualifications. After hearing his qualifications and experience, this Court qualified Det. Kessler as an expert in those

areas. [ 31 ] Sgt. Kessler received and examined the following: Exhibit CN6: One (1) caliber .40 Smith and Wesson, expended cartridge case Exhibit CN7: One (1) round of caliber .40 Smith and Wesson ammunition Exhibit CN47: One (1) portion of a fired bullet and three (3) metal fragments Exhibit CN63: Five (5) lead pellets Exhibit CN64: Two (2) wads [ 32 ] Generally, Sgt. Kessler’s role was to determine the probable make and type of firearm from which ammunition was fired or could be fired, and the shot size of the lead pellets.

CN6 and CN47 were possibly from a “Glock” semi-automatic pistol, caliber .40 Smith and Wesson. CN7 is consistent with being the same ammunition as CN6 and CN47. The actual round (CN7) is consistent with being “COR-BON” ammunition with a 135 grain jacketed hollow point bullet. Information from "COR-BON" Bullet and Ammo Co., Sturgis, South Dakota indicated that all "COR-BON" caliber .40 Smith and Wesson ammunition have hollow point bullets, and that "COR-BON" does not export to any distributor or retailer in Canada. Sgt.

Kessler could not determine if CN7 was chambered (or loaded) in the same firearm as CN6. [ 33 ] A hollow-point bullet has a cavity in the front, which causes the bullet to expand more rapidly when it hits its target. This creates a larger wound channel. The more it expands, the more it expends energy in the victim and the less likely it is to exit the victim.

It causes more damage. [ 34 ] The unexpended round (CN7) might have been taken out by the pistol operator or, if it was loaded in the firing chamber, the operator might have chosen not to fire that round and simply ejected it from the firing chamber by pulling the slide at the top of the pistol. Sgt. Kessler termed this “racking” the slide. This would have ejected the round without firing it. Or there might have been a malfunction at which point the operator might have cleared the chamber by racking the slide. [ 35 ] Sgt. Kessler opined that the barrel of the pistol was placed on Mr.

Buchart’s body before the pistol was fired. There is a smoke halo and bruising around the wound. [ 36 ] The lead pellets (CN63) are consistent with being size 00 buckshot, which is .33 inches in diameter. The wads are 12-guage and the plastic wad is consistent with being a “federal” over powder wad. All these items are from a shotgun shell. CN63 and CN64 were removed from Mr. Deakins’s body. Sgt. Kessler described these items as coming from a 12 gauge, three-inch magnum shotgun shell. Because the pellets were 00 buckshot, the shotgun shell would house the wads, along with 15 pellets.

Five pellets and the wads were recovered from Mr. Deakins’ body. As for the other ten pellets, they likely exited Mr. Deakins’s body through his exit wounds and could have been found anywhere in the Residence. Cst. Neill recovered the ten pellets in various places around the Residence. The pellets that exited Mr. Deakins’s body might have ricocheted and be found a considerable distance from his body. The path of the pellets’ travel would not be predictable and could be in other rooms or even embedded in a wall, in a different room, or they could have returned and ended up on Mr. Deakins’s body.

If a pellet hit the floor, it could have damaged the floor. The Crown’s counsel showed Sgt. Kessler a photograph of the living room where Mr. Deakins’s and Mr. Buchart’s bodies were located, which shows marks on the floor of the carpet. [ 37 ] Sgt. Kessler opined that Mr. Deakins was shot at a distance of less than one foot away. From the autopsy photographs, Sgt. Kessler noted the circular hole and the defined edge of the hole, meaning that the shotgun pellets did not spread much. As well, there was stippling, meaning burnt particles of powder hitting the skin, which burns the skin.

There was a dark halo near the armpit which is a “smoke halo.” There was also white granular material, which is used in the shotgun cartridge to fill up the space between the pellets. 3. Sgt. Jodi Arns [ 38 ] Following a voir dire , this Court qualified Sgt. Jodi Arns as an expert in forensic bloodstain pattern analysis. In particular, it qualified her to give opinion evidence on the events or sequence of events that results in the deposition of blood through the examination of the size, shape, distribution, and location of bloodstains and bloodstain patterns. Sgt.

Arns was in the CPS Forensic Crime Scenes Unit, and she had received extensive training in forensic bloodstain pattern analysis. [ 39 ] Sgt. Arns prepared a report titled “Bloodstain Pattern Analysis Report: Death of Trevor Deakins on July 11, 1994.” She prepared this report from photographs of the crime scene and the autopsy reports. She did not attend the crime scene. Her report was limited to Mr. Deakins. She did not do any analysis of Mr. Buchart’s bloodstains, or their pattern. [ 40 ] Sgt. Arns opined that the offender was standing near to Mr. Deakins when Mr. Deakins was shot. Mr.

Deakins was in a kneeling or seated position, when he was shot, and he slumped forward after he was shot. Very soon thereafter, he was pushed or fell backwards. He remained in this position when the police located his body. He was not standing when he was shot. The blood spatter also shows void areas where there is no blood spatter. Sgt. Arns testified that these void areas were likely where the feet of the person who shot Mr. Deakins were located. They are positioned such that this person blocked any escape from the living room of the Residence. [ 41 ] Sgt.

Arns observed bloodstains transferred from footwear to the carpet where the bodies of Mr. Deakins and Mr. Buchart were located and the same types of bloodstains going up the stairs from the Residence to the landing. She observed that the most concentrated area of the transfer stain came from the inside of the footwear, which would be consistent with the location of the bloodstains on the carpet near Mr. Deakins’s body. The footprints indicate that the person left Mr. Deakins’s body, walked down the hall, and up the stairs to the landing.

[ 42 ] Sgt. Arns observed two blood drip stains on the landing. This blood would have been on an object and dropped to the ground through gravity. She also noted bloodstains on the wall going up the stairs, and in the area around the doorknob. These were “transfer stains” in which an object that was wet with blood contacted the wall and left the blood behind. [ 43 ] Sgt. Arns noted transfer bloodstains emanating from a left hand on the wall of the Residence. She also identified transfer bloodstains on a cardboard box that was in a closet near the hallway, along with two spatter stains.

The source of this blood could have been something on which Mr. Deakins’s blood was located. The Crown hypothesizes that this could be the muzzle of the firearm that shot Mr. Deakins, but it could be from anything that contained Mr. Deakins’s blood. 4. Laura Reader [ 44 ] Laura Reader is a reporting scientist and team leader with the RCMP Forensic Science and Identification Services in Edmonton. After hearing her evidence concerning her qualifications, this Court qualified Ms. Reader as an expert in the

interpretation of examination results of exhibits for the presence of human biological materials, the

interpretation and comparison of forensic DNA typing profiles, and the application of statistical significance to any matches or inclusions found. [ 45 ] Mr. Cochrane admits to being present at the Residence at the time Mr. Deakins and Mr. Buchart were murdered. He left his DNA behind. Despite this admission, Ms.

Reader’s evidence continues to be important, which will be evident as this Court works through its analysis. [ 46 ] The parties agreed that the admissibility, continuity, and integrity of all items seized during the investigation of this matter, as well as any swabs, samples, or derivatives thereof, including all DNA extracts, would be admitted. This includes: • Omega stun gun found under a living room chair in the Residence identified as CN-14, • Large machete style knife found under the body of Mr.

Buchart in the Residence identified as CN-12, • Blood samples, obtained from the Residence and surrounding area, including those identified as CN-1, CN-3, CN-12, CN-14, CN- 24, CN-24(a), CN- 24(b), and CN-72. [ 47 ] The parties also agreed that all the RCMP Forensic Science and Identification Services Laboratory Reports that various authors prepared would be admissible as full exhibits and may be considered for their truth. The continuity and integrity of all exhibits and their derivatives, including all DNA extracts referred to in those reports, were admitted. [ 48 ] Ms.

Reader outlined the process that the RCMP undertakes from the moment it receives an exhibit from a police or other agency to the final report of the tests and results that the RCMP crime lab undertakes. For the purposes of this decision, this Court will not provide her evidence on this process, as the process itself is non-controversial. [ 49 ] Ms. Reader became the primary reporting scientist involved with this matter. When she was assigned this role, she reviewed the entire file by looking at everyone’s working notes, reviewing the data from previous reports, and reviewing the reports themselves.

She undertakes the

interpretation of the DNA data and comparisons and prepares the reports. [ 50 ] Ms. Reader testified that every individual has a unique DNA profile, other than identical twins or triplets, who share the same DNA profile. Even siblings, whose DNA emanates from the same source, being a mother and a father, have different DNA profiles. [ 51 ] A person’s DNA can be transferred from one place to another. For example, a person’s DNA can be transferred directly from one place to another by touching or leaving their DNA at the other place. This could be done, for example, by spitting on the floor.

This is a primary transfer. If someone steps on the saliva, there would be a secondary, or indirect, transfer of the saliva from the floor to the person’s shoe. Wet samples, such as blood or saliva, are easier to transfer than are dry samples, such as skin cells. [ 52 ] Ms. Reader reviewed with this Court the nine reports that RCMP lab scientists prepared in the case at bar. She had prepared six of them and her predecessors had prepared three of them. She explained that the technology that the RCMP crime lab uses to develop DNA profiles has changed several times since 1995.

In 1995, it used a restriction fragment length polymorphism analysis (“RFLP”). Now it uses a short tandem repeat multiplex analysis (“STR”). The analysis has become more discriminating. In essence, as the technology progressed, the number of genetic regions for analysis increased. For example, in 2011, the RCMP lab analyzed nine regions. In 2021, it analyzed 15 regions. Although the “older” analysis provided correct answers, the newer analysis provides more discriminating information on which the RCMP calculates statistics.

A DNA extract that was analyzed using RFLP could be re-analyzed today using STR, applying current protocols. [ 53 ] Forensic Specialist Peter Bilous prepared the first report dated March 30, 1995. Dr. Bilous received 16 exhibits from Cst. Neill. As well, he received other exhibits from within the RCMP crime lab, which were samples taken from the exhibits that Cst. Neill had provided, along with two other exhibits. Of interest for the purposes of this decision are: CN-44 a known blood sample from Mr. Buchart CN-66 a known blood sample from Mr.

Deakins CN-72 blood flakes from a knife CN-71 flakes from a stun gun CN-9 hair from a balaclava CN-33 hair from Mr. Buchart’s shirt

CN-23 stain from cardboard CN-1 stain from a floormat CN-2 stain from a floormat CN-24 stain from a rock [ 54 ] Dr. Bilous examined the exhibits for the presence of blood and to establish the possible origins of the DNA extracted from any such blood by comparison with the DNA typing profiles of the known samples, including those from Mr. Deakins and Mr. Buchart. [ 55 ] Human blood was identified on many of the exhibits (excepting the hair samples). The human blood was of sufficient quantity and quality to conduct a DNA typing analysis. For the exhibits that were available to conduct DNA typing, Dr.

Bilous was able to obtain information that was a useable DNA-typing profile that he could use for comparative purposes. [ 56 ] Dr. Bilous’s conclusions refer to alphanumeric numbers, which indicate locations on the exhibit itself. His conclusions are, among others: 1) The DNA typing profiles obtained from exhibits CN-1 (blood from the vinyl mat) and CN-24A (blood from a rock) match each other and are indicative of having originated from an unknown male individual "A". 2) The DNA typing profiles obtained from exhibits CN-9A (hair sample from the balaclava) and CN-33A (hair from Mr.

Buchart’s shirt) match each other and are indicative of having originated from an unknown male individual "B''. 3) The DNA typing profiles obtained from exhibits CN-26 (stain from drywall), CN-28 (stain from table), CN-38 (stain from Mr.

Buchart’s left hand), and CN-71 (blood from the stun gun) match the DNA typing profile obtained from the known sample, exhibit CN- 44 [BUCHART], and are consistent with having originated from that source. 4) The DNA typing profiles obtained from exhibits CN-2 (stain from floor mat), CN-23A (stain from cardboard), and CN-23B (stain from cardboard), match the DNA typing profile obtained from the known sample, exhibit CN-66 [DEAKINS], and are consistent with having originated from that source. 5) The DNA typing profile obtained from exhibit CN-72 (stain from knife) is indicative of a mixed sample and is consistent with having originated from the donors of exhibits CN-44 [BUCHART], CN-66 [DEAKINS], and the unknown male individual "A". 6) The DNA typing sample obtained from CN-3 (stair moulding) and CN-24B (rock) was enough to exclude known samples, such as Mr.

Deakins, Mr. Buchart, and Individual B, but Individual “A” could be neither included nor excluded. [ 57 ] For clarification, the DNA typing profiles for Individual “A” and Individual “B” are different. They are not the same person, but they are both males. Neither is Mr. Deakins or Mr. Buchart. [ 58 ] Biology Specialist Dorothy Dawson prepared a report dated February 13, 2002. The purpose of Ms. Dawson’s report was to examine some of the exhibits that Dr. Bilous had already examined using the newer technology and compare them to a known sample.

The newer technology allowed for the analysis using nine genetic regions. Ms. Dawson examined exhibits CN-1 (blood stain on floor mat), CN-9A (hair from balaclava), CN-24A (rock), and CN-33A (hair from Mr. Buchart’s shirt). The conclusions that Ms. Dawson reached are similar to Dr. Bilous’s conclusions.

She concluded: 1) The DNA typing profiles obtained from exhibits extracted DNA from bloodstain on exhibit CN#1 and extracted DNA from blood on exhibit CN#24 area A of the rock are that of an unknown male individual previously designated as unknown male individual "A". 2) The DNA typing profiles obtained from extracted DNA from bloodstain on exhibits CN#9A ( root ends of questioned hair removed from exhibit CN#9 ) and exhibits CN#33A (root ends of questioned hair removed from exhibit CN#33) are that of an unknown male individual previously designated as unknown male individual "B". [ 59 ] Both were from a single source, being Individual “A” and Individual “B,” respectively. [ 60 ] Ms.

Dawson remarked that the DNA typing profile that she obtained from exhibits CN-1 and CN-9 would be “entered into the Crime Scene Index of the National DNA Data Bank of Canada.” [ 61 ] Forensic Specialist Peter McLaren created a report dated April 27, 2011. Mr. McLaren re-examined some items that had been previously examined, using the newer technology. Unlike Dr. Bilous, Mr. McLaren had some of the actual items, like exhibit CN-12 the machete (or knife) and CN-14 (the stun gun), instead of just flakes taken from these items. [ 62 ] Exhibit CN-37A was a DNA extract of hair roots taken from Mr.

Buchart’s right hand. When Dr. Bilous examined this exhibit in 1995, he extracted DNA from the hair root and developed a profile using RFLP. What came back to Mr. McLaren for examination in 2011 was that same pure DNA in a small tube. This is the same DNA that Dr. Bilous analyzed in 1995. The conclusion that Mr.

McLaren reached concerning exhibit CN-37A was that the DNA typing profile was of “mixed origin consistent with having originated from two individuals.” The profile of the “major component” was Individual “B.” As for the remaining unknown component, there was limited genetic information, so a meaningful comparison could not be done. When questioned by this Court on how there could be a mixed origin in a hair root, Ms. Reader opined that Mr. Buchart might have had another biological source in his own hand as he clasped the hair. [ 63 ] Mr.

McLaren’s conclusion following his analysis of the electrode and surrounding area of CN-14 the stun gun was:

The DNA-typing profile obtained from Exhibit CN#14 (stun gun, area AA) matches that of the known sample Exhibit CN#44 (BUCHART, Barry). The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 3.8 million. [ 64 ] Dr. Bilous also concluded that Mr. Buchart was the source of the material he tested from the stun gun. [ 65 ] Ms. Reader produced a report on February 28, 2020, in relation to her analysis of the top end of a discard sample (straw) bearing exhibit number JV-1. This was the cast-off DNA that Cst. VanLuven obtained. Ms.

Reader concluded that the DNA typing profile is of mixed origin with the profile of the major contributor being suitable for comparison purposes and the trace contributor not being sufficient for comparison purposes. As for the major contributor, Ms. Reader concludes: The DNA-typing profiles obtained from Exhibit CN-1 (stain on floor mat) and CN-24 (stain on rock) area A, previously designated as Individual “A,” match that of the discard known sample Exhibit JV-1 [COCHRANE].

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 29 quadrillion. [ 66 ] Despite the statistical number, Ms. Reader opined that the major contributor to the DNA profile from JV-1 matched the DNA profile from CN-1 and CN-24A. She also concluded that the donor of the discard sample on JV-1 is not Individual “B.” [ 67 ] Ms. Reader tested 15 genetic regions. Ms. Dawson, in her report, had tested nine genetic regions so Ms. Reader’s report compared only those nine genetic regions, for her comparison purposes. [ 68 ] Ms.

Reader completed a report dated April 7, 2020. All the samples that she tested were DNA extracts. They were CN-3 (stain on stair moulding), CN-24B (stain on area B of a rock), and CN-72 (stain on knife). CN-72 was the same DNA that Dr. Bilous had tested in his report. She repeated some of the earlier work the RCMP crime lab performed, but the tests that Ms. Reader performed used the updated technology where they analyzed 15 genetic areas. As well, she was comparing those exhibits to exhibit JV-1.

Her conclusion stated: The DNA typing profiles obtained from Exhibits CN#3 [stain on stair moulding] and CN#24 [stain on rock, area B] match that of the discard known sample, Exhibit JV-1 [COCHRANE]. The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 39 quintillion. [ 69 ] She went on to conclude: The DNA typing profile obtained from Exhibit CN#72 [stain on knife] is of mixed origin consistent with having originated from at least three individuals, at least one of whom is male.

Due to the weakness of some components and the number of possible contributors, no meaningful comparison can be made to any samples. [ 70 ] Ms. Reader prepared a report dated January 20, 2021, in which she was analyzing an exhibit 3922-01, which was a known blood sample from LC. This sample was the dried bloodstain on an FTA card. Ms. Reader described what happened to exhibit 3922-01 after the RCMP crime lab received it. Again, this process is not controversial, so this Court will not provide Ms. Reader’s testimony in this regard. Ms.

Reader reached the following conclusion: The DNA typing profiles obtained from Exhibits CN#1 [stain on floor mat] and CN#24 [stain on rock, area A], previously designated as Individual “A”, match that of the known sample exhibit 3922-01 [LC]. The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 29 quadrillion. [ 71 ] As well, Ms. Reader concluded: The DNA typing profiles obtained from Exhibits CN#3 [stain on stair moulding] and CN#24 [stain on rock, area B] match that of the known sample exhibit 3922-01 [LC].

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 9 quintillion. [ 72 ] “LC” is Mr. Cochrane. [ 73 ] After she completed her analysis, on February 17, 2021, Ms. Reader returned the FTA card to the CPS, and on March 8, 2021, she returned the DNA extract to the CPS. [ 74 ] Ms. Reader provided this Court with her evidence concerning “contamination” and how the RCMP crime lab seeks to prevent it. She described contamination as the introduction of DNA from other sources to an evidentiary sample.

The RCMP crime lab has protocols that attempt to protect against contamination. This Court will not review these protocols for the purposes of this decision. Suffice it to say that these protocols were followed in respect of exhibit 3922-01, as well as all other exhibits that the RCMP crime lab examined in the case at bar. Had a contamination event occurred in respect of a known sample and it did not appear to be a single source sample, the RCMP would have gone back and resampled the original FTA card. This did not occur in respect of exhibit 3922-01 at the time Ms.

Reader issued her report. [ 75 ] In her report dated June 15, 2021, Ms. Reader re-tested CN-44 and CN-66, DNA extracts from samples emanating from Mr. Buchart and Mr. Deakins, respectively, using updated technology. These samples were tested against CN-72 (stain on knife) and exhibit 3922-01 LC, using that updated technology. Ms. Reader explained her methodology in some detail, which is not critical to this Court’s

decision. The conclusion she reached was that: The DNA typing profile obtained from exhibit CN#72 [stain on knife] is of mixed origin consistent with having originated from at least three individuals, at least one of whom is male. The donors of the known sample, exhibit CN#44 [BUCHART], CN#66 [DEAKINS], and 3922-01 [LC], are possible contributors to this mixed profile.

Based on the Canadian Caucasian population, it is estimated that 1 in 73000 individuals is a possible contributor to this mixed profile. [ 76 ] She then excluded a number of other possible contributors, including Individual B. [ 77 ] What this conclusion means is that the three known samples are possible contributors to the CN-72 sample. Their DNA is contained on the knife, but one in 73,000 individuals in the Canadian Caucasian population could also be a contributor. [ 78 ] Ms.

Reader’s report dated July 19, 2021, reports on many things, but she provided evidence concerning only one item, exhibit CN-56 (a sock from Mr. Deakins’s foot). Blood was recovered from that sock, and it was determined that the profile of the major contributor matches that of exhibit 3922-01 LC. [ 79 ] Ms. Reader’s report dated April 16, 2023, re-analyzes exhibit 3922-01, being the FTA card. Ms. Reader went through with this Court how the FTA card was received by the RCMP Lab and how the new sample was extracted from the FTA card. She had no concerns about re-contamination.

The conclusion she reached after her re-analysis was the same as that she concluded in her report dated January 20, 2021. [ 80 ] The CPS sent an extract of exhibit 3922-01 to the British Columbia Institute of Technology (“BCIT”) to have it re-analyzed. BCIT’s report is dated August 20, 2021. The BCIT report concludes that extract from exhibit 3922-01 originated from at least two individuals, the major contributor of which was Mr. Cochrane. Ms. Reader testified that she could not comment on what happened to the sample after it left the RCMP crime lab or how BCIT handled the sample.

She has no knowledge of BCIT’s contamination protocols. Counsel for Mr. Cochrane provided Ms. Reader with different scenarios that could have resulted in the contamination of the extract of exhibit 3922-01, but Ms. Reader simply could not provide this Court with a response to those scenarios, as any such comment would be speculation or conjecture. She knows only about the RCMP crime lab’s protocols and procedures. [ 81 ] BCIT uses an analysis kit that examines 21 genetic areas. The RCMP lab uses an analysis kit that examines 15 genetic areas. When asked about the accuracy of these different kits, Ms.

Reader testified that the results would be the same, but the results would calculate the statistics differently. The BCIT analysis kit would provide a higher random sampling than would the RCMP Lab kit. It is more discriminating, but the correctness of the RCMP labs results would be the same, meaning that in her opinion, the RCMP lab’s results were correct in the first place. What happened at the BCIT lab, or before it received the extract, she could not say. C. Civilian Witnesses 1. The Neighbours [ 82 ] Hugh Morrison lived in the house next to the east side of the Residence. Alphonse Ehman was one of Mr.

Morrison’s friends. Mr. Ehman described Mr. Morrison’s house as being a detached house, with a living room in the front, a kitchen in the back, and a deck in the backyard off the kitchen. On Sunday nights, Mr. Ehman would go to Mr. Morrison’s house to have a visit and drinks. On July 11, 1994, Mr. Ehman arrived at Mr. Morrison’s house at about 1:30 a.m. driving his small blue Ford Tempo or Escort. That night, Jamie Robertson, another of Mr. Morrison’s friends was also present. [ 83 ] The Crown’s counsel showed Mr. Ehman an aerial photograph of the area where Mr. Morrison’s house and the Residence were located.

They were next door to each other. Mr. Ehman described directionally, how he arrived at Mr. Morrison’s house. He was travelling on the avenue immediately to the south of Mr. Morrison’s residence when he saw a pickup truck coming towards him. The pickup truck going very slowly or stopped a house or two farther down that avenue. The truck apparently turned around, as it began following Mr. Ehman’s vehicle. Mr. Ehman eventually parked across the street from Mr. Morrison’s house. The pickup truck slowly drove past him as he parked. The passenger side was visible to Mr.

Ehman, and the occupants of the pickup truck were looking at the houses in the opposite direction from where Mr. Ehman was sitting. Those houses were on the same side of the street as was Mr. Morrison’s house. Mr. Ehman was unsure of the number of people in the pickup truck. He got out of his vehicle and went into Mr. Morrison’s house. [ 84 ] Mr. Morrison and Mr. Robertson were already in Mr. Morrison’s house. Mr. Ehman told them that it seemed suspicious to him that the pickup truck was driving slowly and stopping. Once he entered Mr.

Morrison’s house, he watched the pickup truck circle the block two or three times. He observed this from Mr. Morrison’s deck, which was a raised deck, or while looking out the front window of Mr. Morrison’s house. The last time he saw the pickup truck, Mr. Ehman was on Mr. Morrison’s back deck, where he saw the pickup truck drive west down the back alley past the Residence and stop. Mr. Morrison and Mr. Robertson were also on the back deck. [ 85 ] Mr. Ehman described the pickup truck as being blue. Its sound was louder than a regular pickup truck.

He described it as being a “short box Chevy pickup” that had a Confederate flag in the back window. During cross-examination, he testified that this Confederate flag covered the back window. The pickup truck’s tires seemed a bit small for that truck, with a larger than normal distance between top of the tires and the wheel wells. Mr. Ehman did not recall whether the pickup truck had a roll bar. He believes it had a tailgate. [ 86 ] Mr. Ehman saw “two fellas” coming from the back alley. They walked along the side of the Residence towards its entrance.

During cross-examination, he confirmed that it was possible that others might have gone into the Residence before Mr. Ehman saw the

“two fellas.” The “two fellas” came up the side of the Residence to its entrance that was on the east side of the Residence. Both were males wearing balaclava masks. One was wearing the mask down, while the other was wearing his like a toque. Mr. Morrison’s deck is above a single car garage, so it is raised above the ground. Mr. Ehman was looking down at the two individuals. Mr. Ehman saw the uncovered face “for a split second.” One of the individuals had longer blond hair that extended below his shoulders, although Mr. Ehman could not recall how far the hair extended beyond the shoulders.

He did not believe it was in a ponytail. In the statement he had given to the police on July 26, 1994, he said that the individual with the blond hair also had a moustache, but the statements he gave to the police oscillated on that point. Mr. Ehman testified that it was possible that Mr. Morrison’s dog was with them on the back deck and would have been barking during this time. [ 87 ] Once they saw this, Mr. Ehman, Mr. Morrison, and Mr. Robertson went into Mr. Morrison’s house. Mr. Ehman did not see the individuals enter the Residence. He went to a side window at Mr. Morrison’s house that faced the Residence.

From here, he “heard an altercation next door,” which he described as a “large scuffle.” There was yelling. He could see into the Residence through curtains that were open about six inches. He assumed this was the living room. He saw someone in red shorts rolling on the ground back and forth and someone in black standing above the person in the red shorts.

He heard someone say, “I want my money Trevor, I want my fucking money.” Later he heard, “Fuck it, just kill him.” He also heard an electrical sound, like somebody being “electrocuted with a taser.” He then heard gunfire, which he described as two gunshots, or three gunshots. He ducked down. Shortly after that, the police showed up. He did not speak to the police that night. When he finally gave his statement to the police, he did not lie to them. [ 88 ] Mr. Ehman did not call 911, nor did he see Mr. Morrison or Mr. Robertson call 911. Mr. Morrison was a drug dealer. [ 89 ] Mr. Morrison confirmed much of Mr.

Ehman’s testimony in terms of where he lived and the description of his detached house, which was located next door to the Residence. His house had three windows that faced the Residence, one in each of the kitchen, stairway, and living room. All the windows were accessible for viewing the Residence. He had a Rottweiler dog named Norton. Mr. Morrison confirmed that at that time, he was a “marijuana broker.” [ 90 ] On Sunday nights he, Mr. Ehman, and Mr. Robertson would regularly get together to have a few drinks and play foosball. This often occurred at his house. One such occasion occurred on July 10, 1994. Mr.

Robertson arrived first. When Mr. Ehman later arrived, he asked Mr. Morrison whether he had noticed a pickup truck driving around. He specifically said of the individuals in the pickup truck, “What are these guys doing?” Mr. Morrison saw the pickup truck driving around the block. When asked how many times the pickup truck had driven around the block, Mr. Morrison said, “two for sure,” but it could have been more than two. He saw the pickup truck from his front door, which was open.

The sound of the pickup truck was, “Louder than a stock vehicle” and it was a “blue mid-80s half ton with a lift kit.” The lift kit raised the whole truck, not just part of it. The tires were stock tires, not the bigger ones you would buy if you had a lift kit. They were “smaller, they did not fill the spot.” It was a “well-used truck” that had a Confederate flag covering the back window. [ 91 ] At some point, Mr. Morrison went out to the back deck. Mr. Robertson and Mr. Ehman were likely out there with him. Norton was barking. While on the deck, he saw the pickup truck go down the alley in a westerly direction.

This was the last time he saw the pickup truck. While he was going back into his house, but still outside, he saw two persons going onto the step that goes into the Residence towards the downstairs. This would have been on the east side of the Residence. He could see the lower face and eyes of one of the individuals. He does not recall if that person’s nose was covered. That person was a blond-haired male who had a moustache and was wearing a leather jacket and something over their face. The moustache was a “bushy,” or at least it was thicker than the one that Mr. Morrison wore.

That individual’s hair was about eight inches past the nape of his neck, though it might have been a bit longer. He also saw another person with brunette coloured hair. It was a very quick glimpse. He went into his house. [ 92 ] Once in his house, Mr. Morrison heard some screaming. He could not make out much of what was being said, but he does remember hearing someone say, “Give me my money, Trevor. Give me my fucking money, Trevor,” or something along those lines. He heard gunshots, then, from his kitchen window, he saw “the two guys leaving” from the same door in which they entered the Residence.

They moved towards the alley “very quickly.” These were the blond person and the person with the darker hair, both of whom wore dark-coloured leather jackets. [ 93 ] Mr. Morrison did not call 911, as he thought someone in the Residence would do that. In a statement he had given to the police on July 15, 1994, he said nothing about people entering the Residence or hearing shots. He admitted before this Court that he was not being fully truthful with the police in this statement. On the stand, he testified that he had heard several gunshots; more than two.

He did not hear or see the pickup truck leave the alley and he does not know if others left the Residence. [ 94 ] Mr. Robertson confirmed his friendship with Mr. Morrison and Mr. Ehman, a description Mr. Morrison’s house, and what they were doing on the evening before the events of July 11, 1994. Mr. Robertson had arrived just after midnight on July 11, 1994. Mr. Ehman arrived at 1:20 a.m. Up to the time that Mr. Ehman had arrived, neither Mr. Morrison nor Mr. Robertson had been drinking, as Mr. Ehman was bringing some ingredients for their cocktail of choice. Once Mr. Ehman arrived, he mentioned a pickup truck.

Mr. Robertson proceeded to make drinks and then went to have a look for the pickup truck. From Mr. Morrison’s living room window, he saw the pickup truck heading down the street in front of Mr. Morrison’s house. He described the pickup truck as being a 1974 to 1986 square body GM or Chevy. It was medium blue and beat up. He described it as a “bush truck” that was rusty. It was very loud. It was a standard box, not a short box pickup. Mr. Robertson did not recall the pickup truck having a roll bar. He would have noticed a roll bar had there been one. It had a Confederate flag in the back window.

On further questioning, he testified that the truck was a Chevy, not a GMC. [ 95 ] Mr. Robertson assumed that the pickup truck had circled the block because the next time he saw it, it was driving down the alley in a westerly direction. He was in the games room near the kitchen when he saw and heard the pickup truck going down the alley. [ 96 ] Mr. Morrison’s dog was “barking his head off,” so Mr. Robertson went out to the back deck to see what was going on. He was on the mat just outside the back door.

He saw nothing initially, but then he saw a couple of male individuals coming up from the alley on the neighbour’s side of the fence. They were heading towards the Residence, came up the sidewalk and climbed the stairs up the landing to the door of the Residence. One wore a ski mask or balaclava and the other was pulling a ski mask down. Mr. Robertson could see the

white skin around the eyes of the balaclava. The individual who was pulling his balaclava down was a white male with a dirty blond ponytail. This individual was anywhere from five feet eight inches tall to six feet. He was pulling the balaclava down as he is going up the stairs. Mr. Robertson described their clothing as dark in colour. They were not wearing jean jackets. [ 97 ] Mr. Robertson then went back into the house very quickly, as in July, “no one is wearing a ski masks.” He felt “there was something going down.” Mr. Ehman and Mr. Morrison also returned to the house very quickly. Mr.

Morrison then locked the door and Mr. Robertson grabbed a hatchet, should the two individuals come to visit them. Mr. Robertson went into the living room. He was looking out the front window of the house, but he could not see much. He could hear muffled yelling, but he could not make out the words. He opened the front door, as he wanted to hear what was going on. He heard a gunshot, so he closed the door and went back to the kitchen. He heard just one gunshot. This was at 1:48 a.m. No one called 911, which was Mr. Morrison’s decision. [ 98 ] Mr. Robertson eventually called Crimestoppers on July 13, 1994.

He admitted that he made some statements to Crimestoppers that were not true, but most of what he told them was true, in terms of the address, the number of suspects, their descriptions, what he saw and heard concerning the pickup truck, and his description of the events that took place in the Residence. He did not want to draw the attention of the police. He called Crimestoppers because he had heard about the murders on the news and that the police had nothing to go on. He felt that he was their only avenue. 2. The Suitemate [ 99 ] Mark Nortcliffe lived in the suite immediately above the Residence. Mr.

Buchart had lived in that upper suite, but he moved into the Residence with Mr. Deakins. On the date in question, namely, July 11, 1994, Mr. Nortcliffe was in the process of moving out and Mr. Buchart was in the process of moving into the Residence. Mr. Nortcliffe was supposed to move out that night, but he had one bag to pack, then he would go to work and not return. All that was left was a mattress and his toolbox, which he left by the side door. [ 100 ] Mr. Nortcliffe was born in Quebec but grew up in Ontario. It is in Ontario where he first met Mr. Deakins. Both he and Mr.

Deakins moved to Alberta around the same time, which was in 1993, or 1994. Several people had lived in the Residence, being Mr. Deakins, SH and WS. Mr. Nortcliffe knew all of them from Ontario. He had met Mr. Butchart through work. Mr. Butchart owned the Residence. The other two individuals moved out and Mr. Buchart moved in. [ 101 ] Mr. Nortcliffe returned from work (he worked out of town) late in the afternoon of July 10, 1994. He went into the Residence. It was clean and immaculate. There were no holes in the drywall and “absolutely” no blood stains on the walls. The Residence had been fixed up before Mr.

Buchart moved in. He described that day as a “good-bye day,” presumably because he was going to be moving out the next day. Mr. Buchart and Mr. Deakins were home when he arrived. Mr. Nortcliffe and Mr. Deakins went to the A&W for something to eat. They returned to the Residence, “hung out” and had a couple of beers. The three of them were all in the living room watching television. [ 102 ] Eventually, Mr. Nortcliffe went upstairs to bed. This was at 11:30 p.m. Mr. Deakins and Mr. Buchart remained in the Residence. Everything was “normal.” Mr. Buchart was heading out, which is why Mr. Nortcliffe went to bed.

This was not unusual, as Mr. Buchart would come and go all hours of the night and day. No one else attended the Residence, that Mr. Nortcliffe recalls. [ 103 ] Mr. Nortcliffe does not know when Mr. Buchart returned home, as he was asleep. He had no idea whether someone else entered the Residence after Mr. Buchart returned home. He woke up to someone breaking into the Residence at around 2:00 a.m. He heard no doorbell or knocking. He is a sound sleeper. He thought it was the police as there was a large commotion in the Residence. It was loud and there were things being thrown about.

There were people screaming and dogs barking. He heard Mr. Buchart say, “That’s all I have got. That’s all my personal,” which Mr. Nortcliffe thought meant that it was Mr. Buchart’s “personal stash” of marijuana. Mr. Buchart’s voice was agitated and scared. Another male voice yelled, “Get down.” [ 104 ] Soon there was no more scuffling or commotion. Mr. Nortcliffe thought that the police had handcuffed whoever it was they were after. Then someone came upstairs to his bedroom. It was not a police officer. This person said to Mr.

Nortcliffe, “Stay sleeping” or “Stay laying down.” This was a white male who was wearing all black and had a black balaclava covering his face and head. He had a smaller frame. Mr. Nortcliffe followed this person’s direction. [ 105 ] Mr. Nortcliffe thought this person had a gun, but he was not sure. The individual had his hand in his jacket about chest level and was covering his hand where Mr. Nortcliffe thought there was a gun. The person’s voice was excited, angry, and higher pitched. He described it to the police as being a “whiney” voice. The jacket might have been a bomber-like jacket with a fur collar. Mr.

Nortcliffe testified that he was terrified or “scared shitless.” [ 106 ] At that point Mr. Nortcliffe could not hear anything else, other than a dog barking, which he assumed was either in the backyard or in the Residence. [ 107 ] The person looked out the window and then ran back downstairs. Once the person left Mr. Nortcliffe’s room, another fight broke out in the Residence. Mr. Nortcliffe described it as being smashing, wrestling, and screaming. There was a “full out brawl,” with many men fighting in a small area. All of them were screaming. Mr. Nortcliffe could not hear words, but he did hear Mr.

Buchart telling Mr. Deakins to, “Get my money,” and telling Mr. Deakins, “to hit him.” There was also the sound of glass breaking, tables breaking, and things going through the walls, and then gunshots. [ 108 ] The gunshots ended the fight. Mr. Nortcliffe heard two shots ring out. The first one was loud and the second was muffled. He could hear Mr. Buchart yelling, “I’m dying, I’m dying.” Then there was a mad dash out of the Residence. Mr.

Nortcliffe’s exact testimony was, “The guys that broke in the house were trying to get out of there as fast as they could.” As they ran out of the Residence, they ran into his toolbox, which was sitting on the top of the stairs. It is a big toolbox, and he heard a loud crashing sound. This was odd, as his toolbox was sitting at the top of the landing of the side door, but Mr. Nortcliffe thought whoever had left the Residence had run out of the back or patio door.

[ 109 ] Mr. Nortcliffe continued to lie in his bed. He got up and looked out his window. He testified, “I saw one guy for sure. I’m thinking I saw two, though. It was pretty dark back there.” They ran across the back alley and headed west down the back alley. He did not see anyone actually exit the house, but he did see them running towards the alley.

In the statement he had given to the police on July 11, 1994, the day of the murders, he said that he “saw one man leave out the back heading west out behind the house.” He continued to testify before this Court that he “thought he saw a second in the shadow,” and he was “fairly certain” of this. He described these individuals as wearing black and the person he could see for sure had blond hair. [ 110 ] Within seconds, he could hear a car or truck taking off. He thought it was a pickup truck because of the sound, but he was not entirely clear.

He did not see it drive away. [ 111 ] There was a delay from the time Mr. Nortcliffe heard someone run into his toolbox to the time he looked out the window, although Mr. Nortcliffe could not put a time to it. Mr. Cochrane’s counsel suggested it might have been “a minute or two.” Mr. Nortcliffe agreed. [ 112 ] Mr. Nortcliffe wanted to escape. He did not think he could get out the side door as it needed key to get out. He did not, however, go to that door. Instead, he escaped through a bay window in his living room. He then ran to the next door on the west side and called 911.

He had no idea who was left in the Residence as he exited. [ 113 ] Mr. Nortcliffe described the layout of the upstairs unit and the Residence. Of importance was that there was one entrance for the upper unit and the Residence, and the Residence had a “back door” which was a patio door that led to the deck in the backyard. [ 114 ] Mr. Nortcliffe described Mr. Deakins as being about 25 years of age, five feet ten or eleven inches tall. He did not have any hair as he had shaved his head the week before. He wore glasses. He had a tiger tattoo on his back but does not remember any others.

He testified that he had “probably” seen Mr. Deakins wearing an Oilers cap. Mr. Deakins was an Oilers fan, even though he was from Ontario. Mr. Deakins was not working at the time of his death. Mr. Nortcliffe did not know whether Mr. Deakins was dealing drugs, but he did not have “wads of money.” [ 115 ] He described Mr. Buchart as being a “bigger boy”; overweight. He thought Mr. Buchart was a couple of years older than Mr. Deakins. Mr. Buchart also wore glasses. He sold marijuana from the Residence, where people would come over to purchase the drugs. He would keep some in the freezer of the Residence. Mr.

Buchart always had money, but not a lot of money. Usually, he had a “wad” of $1,000 or $2,000. [ 116 ] Mr. Nortcliffe testified that Mr. Buchart did not have weapons, and he did not know if he owned any, except for an inoperable antique rifle. He does not remember seeing a machete, even though his earlier statement to the police said that apparently there was a machete in the house. To the best of his knowledge, Mr. Deakins did not own any weapons. 3. The Pickup Truck Purchaser [ 117 ] Timothy Haryung provided his evidence to this Court through Webex.

In 1996, his father worked for “Jerry’s Towing.” In November of 1996, his father had towed a blue 1987 GMC truck that was registered to Mr. Cochrane from the Lloydminster area. Jerry’s Towing held the truck until 1997, when it was declared “abandoned.” Mr. Haryung put in a bid an “won it.” [ 118 ] The Crown’s counsel presented Mr. Haryung with an image of a truck. Mr. Haryung identified the truck as the one he had purchased; the photo having been taken very soon after he bought it. The photograph showed the truck in the exact condition as when he bought it. There was nothing mechanically wrong with the truck.

It was smaller than today’s trucks. [ 119 ] He was not aware of any stickers or emblems on the truck, although “[t]here may have been something in the back window,” although it would not have covered the back window, and it would not have been a Confederate flag. The only window that was tinted was the back window which had a slight tint. The truck had a black roll bar, which was depicted in the image. On the roll bar were two sets of lights; one round and one square. They stuck up above the truck’s cab and were quite visible. The roll bar could be removed. It is a one-piece unit with four bolts.

He removed it years after he bought the truck. It took him between one-half hour to one hour to remove it. It was simply bolted to the truck. The truck also had a black bug deflector on the hood and a push bumper. [ 120 ] He was shown a further photograph of the truck that was taken the same date as the previous one. Mr. Haryung was not sure whether the truck had a solid tailgate or a netted one, but the photograph seemed to show a solid tailgate. [ 121 ] The truck did not have a lift kit, which would have lifted the suspension to make the truck sit higher. However, to Mr.

Haryung’s mind, the back of the vehicle could have been “sagged out,” meaning the back sat lower than the front. The sagging out could be the result of having had something too heavy in the back. In any event, the truck sat lower in the back than the front of the vehicle. The back wheels had less distance between the wheels and the fender than did the front wheels. 4. Mr. Cochrane’s Girlfriend [ 122 ] Nathalie Jessica Pepin was Mr. Cochrane’s girlfriend from December of 1991 through July 27, 1994.

They were in a committed relationship and lived together in her apartment in Calgary towards the end of their relationship. Mr. Cochrane was three or four years older than Ms. Pepin. She described him as five-feet ten-inches tall with a stocky build in the sense that he was muscular, not fat. During the time in question, his hair extended past his shoulders and was light blond to dirty blond, depending on the season. Sometimes he had facial hair, sometimes a moustache, sometimes a goatee, and sometimes he was clean-shaven. He did not have a full beard.

Sometimes he would have facial hair “because it looked cool.” [ 123 ] Ms. Pepin took a home video in their Calgary apartment on June 5, 1994, using 1994 technology. It was a smaller videotape, that she would convert to a different medium. The video, which went on for about 15 minutes, was played in court. It showed Mr. Cochrane and their kitten. Ms. Pepin testified that the images of Mr. Cochrane were how he appeared in June of 1994.

[ 124 ] Near the beginning of the video, the kitten was playing with ties on Mr. Cochrane’s black leather jacket. Ms. Pepin testified that Mr. Cochrane often wore this jacket. At one point, Mr. Cochrane had a marijuana pipe in his hand. Ms. Pepin testified that they smoked marijuana in 1994, which was an illegal substance at that time. There were many close-up images of Mr. Cochrane showing his facial features, including his facial hair. His hair was tied in a ponytail. Although there was some discussion about the colour of his hair, Ms. Pepin was adamant that it was blond.

It appeared that his hair was about eight to ten inches below the nape of his neck. She agreed that it was not uncommon for men to have longer hair in those days. [ 125 ] Mr. Cochrane drove a powdered or baby blue GM or Chevy truck. It was an older truck, perhaps 1984 or 1985, with a short box and a regular cab. It was loud. Ms. Pepin testified, “It was loud. It was noticeably loud to anybody. It was just loud. It ran loud, it mufflered loud; it was a loud truck.” As well, Mr. Cochrane’s truck was above average height with a lift kit and had larger than normal mud tires.

It was higher off the ground than a regular truck. The truck was somewhat beat up, which Ms. Pepin described as being, back then, “awesome.” It had a roll bar, but she did not know whether there were lights on the roll bar. It also had a net and not a tailgate. [ 126 ] Ms. Pepin gave Mr. Cochrane a Confederate flag license plate for Christmas in 1993. She described it in detail. Mr. Cochrane had placed the Confederate flag license plate in the back window of his truck. A photograph of Ms. Pepin and Mr. Cochrane taken from that Christmas shows Ms. Pepin and Mr. Cochrane, with Mr.

Cochrane holding the Confederate flag license plate. The original photograph was made an exhibit in these proceedings. [ 127 ] They dated until July 27, 1994. The reason for Ms. Pepin’s accuracy in identifying this date is that she had written it into her personal journal at the time they broke up. She stayed in the apartment. He did not. She confirmed during cross-examination that during the period before they broke up, there were times when Mr. Cochrane would not come back to the apartment. He would simply stay out all night or come back very late at night.

Sometimes she would stay out late, as well, but only on occasion, as it was her apartment. [ 128 ] After they separated, she had little to do with Mr. Cochrane for an extended period. In January of 1996, she paid Mr. Cochrane a surprise visit while he was living in Lloydminster. She stayed with him for a couple of days. Thereafter, she saw him once or twice for a coffee or a beer. The last time she saw him was in 2012 when she went to visit him at his house. They “chit chatted” for a short time, then she left. She had not seen him since then. [ 129 ] From June 5, 1994, through to July 27, 1994, Mr.

Cochrane said nothing to Ms. Pepin about the killings of Mr. Buchart or Mr. Deakins, or that he had been present at their killings. Nor did he ever say anything to her about having knowledge of those killings. [ 130 ] Ms. Pepin dock-identified Mr. Cochrane. 5. Leonard Brian Cochrane [ 131 ] Mr. Cochrane testified. He is currently 53 years old. He was born in Newfoundland and came with his family to Calgary in 1976. He graduated high school and attended community college for two years. Thereafter, he first worked as a DJ, and then in seismic and oilfield construction concurrently.

The latter work took him to the field for “months on end.” He is also an artist, which has helped him earn a “comfortable living.” Mr. Cochrane’s counsel presented this Court with pages from Mr. Cochrane’s website which showed some of his art. One of the pictures is that of a young man with light blond hair, which Mr. Cochrane testified is his portrait when he was about 16 years of age. He confirmed that that was the colour of his hair when he was 16 years old. [ 132 ] Mr. Cochrane has a criminal record, which is somewhat dated.

His convictions include convictions for possession of stolen property over $1,000 and under $1,000 (January 20, 1988), possession of a prohibited weapon, viz , nunchucks (February 1, 1988), possession of a narcotic for the purpose of trafficking (October 6, 1988), possession of a narcotic (August 8, 1990), and possession of a

Schedule II substance (June 6, 2005). [ 133 ] Mr. Cochrane admits to being present at the Residence during the murders of Mr. Buchart and Mr. Deakins but denies any involvement in their murders. In July of 1994, he was living with Ms. Pepin in the Falconbridge area of Calgary. At that time, he was working seismic and oilfield construction, along with his artwork. Mr. Cochrane confirmed that he was in the video that Ms. Pepin took about three or four weeks before July 11, 1994. His hair colour in the video was the same as it was on July 11, 1994, along with its length. [ 134 ] Mr.

Cochrane acknowledged that he had facial hair when he was working in the field, but he would shave it when he returned home. However, the video showed he had facial hair. He denied that he was ever able to grow a bushy moustache. He also confirmed that he owned a black biker-style leather jacket that had a diagonal zip-up and laces on the side. He never owned a jacket with a fur collar or a military green jacket. Nor has he ever owned a balaclava or ski mask, even though he worked in the oilfield during the winter months. [ 135 ] Mr. Cochrane confirmed that when Ms. Pepin took the video, he was in his early 20s.

He was also fit and healthy and what could be described as “buff,” meaning he was strong and muscular. He had long blond hair, which he often wore in a ponytail. In the video, he had a moustache and a goatee. Mr. Cochrane described it as “the stubble of one anyway.” Beyond the goatee and the moustache, the balance of his beard had been shaved. The video also showed that Mr. Cochrane had very light blond highlights in his hair. [ 136 ] Mr. Cochrane confirmed that the photographs of the pickup truck that were made exhibits in these proceedings was the GMC pickup truck that he owned on the night in question.

He acquired it in “February, or May, April” of 1994. After he purchased the truck, he replaced the exhaust header manifold “in the first couple of months that [he] owned it.” He could not recall the date but testified that it would have been repaired by July of 1994. He described the sound of the pickup truck before he replaced the exhaust header manifold as, “noisy. Really noisy. It made the truck really loud.” He also added a roll bar, bug deflector and rear sliding window. It had a metal tailgate. The roll bar was black, which Mr. Cochrane confirmed would be difficult to see at night.

He never installed a lift kit, so it retained its stock suspension. During cross-examination, Mr. Cochrane confirmed that a GMC pickup truck and a Chevrolet pickup truck of the same year would look similar provided their boxes were the same length. This Court notes that even Mr. Cochrane described his

pickup truck as a “Chevy” a couple of times while he was providing this Court with his evidence. [ 137 ] Mr. Cochrane placed the Confederate flag license plate that Ms. Pepin had given him in the back left-hand corner of his truck’s rear window. There was no flag that covered the rear window. [ 138 ] Mr. Cochrane never owned or possessed any firearms. Nor has he ever fired one. [ 139 ] The first time Mr. Cochrane had ever met Mr. Buchart was on July 10, 1994, at a convenience store on 17 th Avenue close to Deerfoot Trail in Calgary at around midnight. Mr. Cochrane had just purchased a soft drink and Mr.

Buchart approached him to see if he wanted to buy some drugs. Mr. Cochrane was alone. Mr. Cochrane advised Mr. Buchart that he would be interested in some marijuana if it was good quality. Mr. Buchart gave Mr. Cochrane his address, which he wrote on a piece of paper and told Mr. Cochrane that he could stop by his house at any time that night because he would be up all hours. Mr. Cochrane returned to his home to get some money as he figured he needed about $300 to purchase one ounce of marijuana, which was the going rate at that time. He then drove to the “Residence.” [ 140 ] Mr.

Cochrane located the Residence and drove by slowly to make sure there were lights on. He drove past the front of the Residence. He could see lights in the front of the Residence, but they were not very bright, so he drove around the block once, and turned down the back alley to make certain there were lights on in the Residence. As he was driving down the alley, he saw someone moving around the kitchen. He saw this through the patio door that led from the backyard of the Residence into the kitchen. He drove in a westerly direction down the alley and arrived at the street.

He turned right and parked his truck on the street. This was at the other end of the block from the Residence. The reason he did not park in front of the Residence was that he did not want his truck to be associated with a “drug house.” [ 141 ] After he parked his truck, Mr. Cochrane walked up the front sidewalk towards the Residence and knocked on the side door. Mr. Buchart answered the door and invited Mr. Cochrane in. They went downstairs into the Residence where Mr. Buchart lived. Mr. Buchart “rolled a joint” for Mr. Cochrane and gave it to Mr. Cochrane for him to smoke. As Mr.

Cochrane was smoking the joint, he heard a dog start to bark and then a commotion began to occur at the front door of the Residence. Mr. Buchart went to the base of the stairs to see what was happening, whereupon two men wearing balaclavas and carrying guns barged into the Residence with guns up. Mr. Cochrane was still in the kitchen when the intruders barged into the Residence. In other words, Mr. Buchart, who Mr. Cochrane described as a “big guy” was in the hall between Mr. Cochrane and the intruders. [ 142 ] During cross-examination, Mr.

Cochrane testified that although he could have exited through the patio door, he did not have time because one of the intruders grabbed him. He further testified that when someone points a gun at you “you don’t run away.” While all this was happening, one of the intruders grabbed Mr. Buchart and “dragged him to the living room and made him [lie] down.” The other intruder grabbed Mr. Cochrane by the shoulder and directed him to the living room. The intruders then made Mr. Cochrane and Mr. Buchart lie face down on the living room floor. The intruders then went into one of the bedrooms, grabbed Mr.

Deakins, brought him into the living room, and made him lie down on the floor between Mr. Buchart and Mr. Cochrane. After fetching Mr. Deakins from the bedroom, one of the intruders began asking for and looking for drugs and money. They asked Mr. Buchart the location of his drugs and money. Mr. Buchart responded by saying “that’s all I got.” [ 143 ] Mr. Cochrane testified that on that night he was wearing a pair of jeans, a T-shirt, and a blue, pink, and purple multi-coloured wool sweater . He also believed that he had a baseball cap on his head. His hair was in a ponytail. Mr.

Cochrane testified that the intruders were wearing dark clothing, gloves, and balaclavas. They were holding guns. One was a handgun and the other was a shotgun. He described his feeling as being “scared shitless.” [ 144 ] As the three of them were lying on the ground, the intruder with the shotgun stood over the three of them and was pacing back and forth. The intruder with the handgun started searching the Residence. The intruders were asking Mr. Buchart the location of his money and drugs. Mr. Cochrane said nothing. At some point, the intruder with the handgun went upstairs. Mr.

Cochrane could hear that intruder going upstairs and then his footsteps as he reached the upstairs suite. The intruder with the shotgun remained downstairs, guarding the three of them. [ 145 ] Mr. Cochrane was looking over at Mr. Deakins who was making a hand gesture that indicated to Mr. Cochrane that Mr. Deakins was going to do something on the count of “3” and started counting “one, two, three” with his fingers. Mr. Deakins then jumped up and started wrestling the intruder who had the shotgun and was trying to pry the shotgun out of the intruder’s hands. Mr. Cochrane jumped up and tried to help Mr. Deakins.

Mr. Cochrane grabbed the shotgun and tried to pull it away from the intruder. The intruder had a shoulder strap on the shotgun that was tightly wrapped around him so Mr. Cochrane could not get the shotgun away from the intruder. The intruder called for help or said something to the effect that they were trying to get his gun. The intruder with the handgun then came “barreling down the stairs.” Mr. Cochrane was hit on the head several times with something heavy and hard. He testified that he then blacked out and fell unconscious onto the floor face first.

That was the position he was in when he “came to.” While he was lying on the floor, he heard at least one gunshot. He then heard the intruders run out the door. [ 146 ] Eventually, Mr. Cochrane stood up, but he was “pretty groggy.” He saw Mr. Deakins and Mr. Buchart lying on the ground. It looked as though they were dead. Mr. Cochrane was really scared. He did not check on either Mr. Buchart or Mr. Deakins. He had a deep cut on the side of his head, and he was “bleeding heavily.” When he touched his head, his hand was covered in blood. [ 147 ] There was a machete located under Mr. Buchart’s body. Mr.

Cochrane testified that he had never handled a machete. [ 148 ] Mr. Cochrane tried to get out of the Residence. He opened the closet door thinking it was the door to exit the Residence. He realized it was a closet and went to the stairs. He went up the stairs and outside the door. He turned right and ran to the back alley. The reason he went down the back alley rather than down the street in front of the Residence was that he had parked just on the outside of the alley so the most direct route from the Residence to his truck was down the back alley.

Once he reached his truck, he entered the truck and left the area.

[ 149 ] He arrived home. When he got there, there was no one home. He took off his clothes, put them in the washing machine, and took a shower. He looked in the mirror before he showered and saw blood all over the side of his head. There was “a lot of blood” on the right shoulder of his “sweatshirt.” Mr. Cochrane did not telephone anyone about what had occurred that evening and, in particular, he did not call the police. He was afraid to be associated with what had gone on and afraid that the intruders would find out who he was and would come and finish him off. [ 150 ] Mr.

Cochrane eventually learned through the news that Mr. Deakins and Mr. Buchart were dead. He still did not call the police. Nor has he ever called the poli

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