R v Courtorielle, 2023 ABKB 536

Court of King’s Bench of Alberta Citation: R v Courtorielle, 2023 ABKB 536 Date: 20230925 Docket: 210145652Q2 Registry: Edmonton Between: His Majesty the King Crown - and - Kenneth Courtorielle Accused _______________________________________________________ Reasons for Decision of the Honourable Justice S.D. Hillier _______________________________________________________ Introduction [ 1 ] The Accused, Kenneth Courtorielle, stands charged on a three-count indictment in relation to the death of Billie Wynell Johnson on December 24, 2020. At the outset of trial, the Accused pled guilty to the offence of causing an indignity to the human remains of Ms. Johnson under s 182(

b) of the Criminal Code ; as well, that he was unlawfully at large prior to sentence expiry, contrary to s 145(1) of the Code. [ 2 ] The focus of the twelve days of evidence was on whether the Crown has established beyond a reasonable doubt that the Accused committed manslaughter under s 236(

b) of the Code . [ 3 ]

Section 236 is the punishment provision for manslaughter. It states: 236 Every person who commits manslaughter is guilty of an indictable offence and liable:

(

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [ 4 ] It is s 234 which actually defines manslaughter as a culpable homicide that is not murder or infanticide. [ 5 ] “Culpable homicide” in turn is defined in s 222(1)(

a) of the Code to include causing, either directly or indirectly, the death of a human being by means of an unlawful act. [ 6 ] Here the Crown contends that the Accused committed manslaughter by unlawfully assaulting Ms. Johnson in circumstances alleged to meet both the factual and legal components required to support the charge. [ 7 ] The major issue to be determined in this case, therefore, is the degree of any involvement or responsibility the Accused had in causing Ms.

Johnson’s death. [ 8 ] To make this determination, I will review the Crown’s evidence from the police investigation, including the forensic assessment of the scene as well as the remains recovered north of Edmonton nearly four months after the disappearance of Ms. Johnson. In addition, a number of friends and family members of Ms. Johnson testified as to their contacts with Ms.

Johnson on December 24, 2020, leading up to her disappearance. [ 9 ] The Court admitted into evidence as voluntary within R v Oickle , 2000 SCC 38 , three of four statements provided by the Accused to the police during their investigation that started as a missing person complaint in late December 2020 (collectively, the “Police Statements”). Each of those statements variously denied any involvement or knowledge of the circumstances leading to the disappearance or death of Ms.

Johnson. [ 10 ] By his pleas and from the agreed upon facts, plus his trial testimony, there is no doubt that the Accused was the only person with Ms. Johnson when she died. As well, he alone disposed of her body. This constitutes a total contradiction of the position taken by the Accused in the Police Statements with respect to his having any involvement or knowledge. [ 11 ] I will deal with the various police interactions with the Accused in the assessment of his evidence as well as the inferences which may reasonably derive from this after-the-fact evidence.

Background [ 12 ] Summarizing narrative points from the Agreed Statement of Facts (“ASF”), in the fall of 2020, the Accused and Ms. Johnson resumed an on-and-off-again intimate relationship that had previously broken-off in February 2020. By December of that year, Ms. Johnson resided from time to time at the second floor apartment of the Accused located at 106 Ave and 113 St. in downtown Edmonton (the “Apartment”). [ 13 ] On December 24, 2020, the Accused and Ms. Johnson woke up and spent most of the day together. They parted company in the mid-afternoon as Ms.

Johnson went to visit with her mother just after 4:00 pm. She was joined at her mother’s place by her long-time friend Jennifer Cappo and they bought some alcohol some time before 6:00 pm. [ 14 ] At about 7:11 pm, Ms. Johnson left her mother’s place and travelled alone by taxi to the Apartment, where she arrived less than ten minutes later. She called the Accused and various others over the next two hours. At 9:30 pm, Ms. Johnson was observed alive and well by a neighbour living in the apartment next door, who was waiting in the hallway for her husband to retrieve his facemask.

As she waited, the neighbour observed Ms. Johnson exit the Apartment talking on a cell phone and then saw her walk back inside the Apartment. [ 15 ] About an hour later, Ms. Cappo attended at the apartment building, where the Apartment is located, arriving at 10:37 pm. As discussed below, by that time Ms. Johnson was no longer responding to any of Ms. Cappo’s communications. [ 16 ] After dropping off Ms. Johnson at around 4:00 pm, the Accused left Edmonton driving his Dodge Ram truck to visit with family on the Enoch First Nation.

He later went skating with these relatives at an outdoor ice area in Stony Plain. [ 17 ] The Accused’s uncle, Mark Blue, testified that he invited the Accused to come for a family skate on Christmas Eve in Stony Plain. He recalled overhearing part of a phone call which the Accused received while skating. The call was with a female. The Accused seemed to get mad and raised his voice. He told the female caller he does not like drinking.

After the call, the Accused seemed to be in a rush to leave. [ 18 ] Uncle Mark thought the Accused was talking with his girlfriend who was drinking, and he did not expect to see him again that night. When the Accused did call around 10:50 pm, Uncle Mark described that he seemed a little off, lonely, sad, confused, disoriented and not himself. Having invited the Accused to come back to Enoch First Nation, Uncle Mark called quite a few times, because he was worried, but got no answers.

The ASF confirms seven missed calls from Uncle Mark’s phone between 11:09 pm and 12:33 am. [ 19 ] Uncle Mark testified that, when the Accused showed up around 1:30 am, he seemed fidgety and concerned. He was pacing. He complained that his hand was sore and went downstairs to sleep, advising he was tired. [ 20 ] The spouse of Uncle Mark, Leighanne Ward, recalled that the Accused came skating with their family around 8:00 pm in Stony Plain. She thought before they left, she overheard the Accused on a phone call saying words to the effect “I told you, no drinking – you know the rules …” and hung up.

She heard a female’s voice but not what was said by her. The Accused then drove off by himself

but called about 10:45 pm. Mark took the call on the speaker phone at first. The Accused seemed upset. They invited him to join her family for a late supper and were worried not knowing where he was. [ 21 ] Ms. Ward described that when the Accused did show up at their place about 1:45 am, he seemed more wound up and upset. He complained that he hurt his hand falling out of his truck. He ate some fruit because his stomach was upset, then took his backpack and went downstairs. Smartphone Communications [ 22 ] Ms.

Johnson had two cell phones on December 24, 2020: her personal cell phone that she used to access her social media accounts, with access to the Apartment’s Wi-Fi, as well as a Samsung S20 (“S20”) given to her by the Accused on December 19, 2020. In addition to the Apartment’s Wi-Fi, these cell phones utilized the nearest Telus cell tower to the Apartment to service phone calls. [ 23 ] Up until 9:55 pm on December 24, 2020, Ms.

Johnson used both cell phones to maintain her presence on several social media accounts as well as to communicate with friends and family members, including the Accused. [ 24 ] The verified records confirm five phone calls exchanged between the S20 and the Accused’s cell phone between 4:32 pm and 8:39 pm on December 24, 2020: a. 4:32 pm (51 seconds) from the Accused’s phone; b. 6:27 pm (missed call) from the S20; c. 6:29 pm (59 seconds) from the Accused’s phone; d. 7:19 (6 minutes, 25 seconds) from the S20; and e. 8:39 pm (22 minutes, 32 seconds) from the S20. [ 25 ] Miranda Mercredi testified that she had a 5 to 10 minute phone call, just after 8:00 pm, from Ms.

Johnson who told her she fell off the wagon and was drinking. Ms. Johnson also mentioned her son and that her boyfriend was out skating. [ 26 ] The last outgoing activity on Ms. Johnson’s personal cell phone was a voice call to her friend Darin Laroque starting at 9:26 pm for 9 minutes. This individual was not called as a witness and there is no evidence of the content of the call. [ 27 ] The last outgoing activity on the S20 was a voice call by Ms. Johnson to her uncle, Tyrone Roan, starting at 9:13 pm until 9:55 pm.

He testified that she sounded like she had been drinking but was not drunk, just feeling good about herself. She told him she was waiting for a friend to show up at her boyfriend’s place and repeatedly talked about three points: her new phone from her boyfriend, that she was going to her dad’s place for Christmas dinner, and that she was mailing gifts for her son. [ 28 ] Mr. Roan said that Ms. Johnson was using a second phone while she talked with him. In addition, he could hear a voice in the background. He assumed it was her boyfriend since she was in his Apartment.

The call ended at 9:55 pm. [ 29 ] These calls and the messages exchanged, which I will review below, during the period 9:15 pm, when the Accused arrived at the Apartment, and 9:55 pm, are relevant to this Court’s assessment of whether Ms. Johnson may have left the Apartment during or shortly after this period of time to purchase drugs, as the Accused alleges. [ 30 ] Notably, Mr. Roan’s evidence did not raise nor was he asked if he was aware whether Ms. Johnson planned or went out to buy drugs. Jennifer Cappo [ 31 ] Jennifer Cappo testified that she had known Ms.

Johnson for 10 years and they were close, like sisters. She explained that since about October of 2020, Ms. Johnson was living with the Accused in downtown Edmonton; she described being with Ms. Johnson inside the Apartment briefly a few times in December. [ 32 ] Ms. Cappo met Ms. Johnson at her mother’s place on December 24, 2020. They bought alcohol around 6:00 pm and drank some. Ms. Johnson got into an argument with her mother and wanted to go home. So, Ms. Cappo called a cab for her. Ms. Johnson left with about 5 cans of beer. They had agreed to meet up later at the Apartment. [ 33 ] Ms.

Cappo identified a string of Facebook messages with Ms. Johnson leading up to when Ms. Cappo eventually walked alone to the Apartment. Having earlier messaged that “… Kenny doesn’t like drinking here,” Ms. Johnson messaged at 7:28 pm for Ms. Cappo to “Come over, Kenny said it’s all good just no drinking but he’s skating like a whole (sic) … whore.” [ 34 ] She and Ms. Johnson continued to discuss plans to meet via Facebook Messenger. Ms. Cappo asked if her boyfriend will be “mad”, and Ms. Johnson replied: “No he said u can come here.” Ms. Cappo invited Ms. Johnson to come to their friend Evander’s place instead.

The last message from Ms. Johnson to Ms. Cappo was at 9:36 pm where she asked: “Is there beer?” [ 35 ] By 10:37 pm, when Ms. Cappo arrived at the apartment building on foot, Ms. Johnson was no longer responding to Facebook messages. She also failed to answer Ms. Cappo’s loud hails from the street announcing her arrival. After 15 minutes with unanswered messages and phone calls, Ms. Cappo left and called Ms. Johnson’s mother because she was worried.

S20 Data [ 36 ] As part of its investigation, police seized the S20 and eventually arranged to break the access code. Using GPS data taken from the S20, a search party recovered a skull, lower jawbone and three arm bones on April 21, 2021, located in a wooded area 37 km north of Edmonton near Bon Accord (the “Remains Site”). From her DNA profile, forensic investigators were able to identify these bones as being the remains of Ms. Johnson. [ 37 ] The S20 tracking records verify that Ms.

Johnson arrived at the Apartment at 7:19 pm and that the cell phone remained there until 10:59 pm before travelling to the Remains Site, then back to the Apartment at 12:37 am on December 25, 2020. Crown Investigation Evidence [ 38 ] The Crown called forensic evidence drawn from its detailed search of the Apartment as well as the vehicles of the Accused. The Crown also called expert evidence and relies on some of the after-the-fact conduct of the Accused, which I will address in more detail below. Apartment Scene [ 39 ] Cst.

Nadine Comeau advised the Apartment was tested with luminol for the presence of blood as the Dodge truck had tested positive and there was evidence of a clean-up. Luminol identified blood, not otherwise visible, in a number of areas of the Apartment: the washroom floor, sink and tub, the main bedroom walls and floor especially at the baseboards by the doorway, with some blood in the hallway and doorway of the spare bedroom.

Blood was also detected in a laundry hamper and in the kitchen sink, as documented in photographs. [ 40 ] The officer acknowledged that, given its high sensitivity, the luminol reaction shown in photos of the Apartment could possibly be a spread-out effect, caused from the use of a mop, which results in a relatively small amount of blood being spread out. While luminol can detect blood, it cannot provide a ratio of dilution or how long the blood has been present. [ 41 ] The officer confirmed that, despite the car wash (discussed below), the luminol detected blood in the Dodge truck.

Expert Evidence [ 42 ] Meghan Hawrish was qualified as an expert in blood stain analysis. She and her understudy attended the Apartment under search warrant. Their filed report identified blood stains on the main bedroom wall and headboard for which no pattern could be derived. Spatter stains were confirmed on the poster above the headboard. Almost all of the 21 stains on that poster were elliptical and downward. That means the blood source was in front of the poster and the blood travelled downward from the point of contact.

She would not speculate about the number of blood events because there could be other forces without any blood patterns. [ 43 ] A minimum of 175 stains were identified on the front decaled surface of a pillow that was found on the floor by the bed. Some of the stains on the pillow could be attributable to expiration because of the fabric absorbency and texture wicking. This was not the case for the spatter stains found on the poster; those drops could not be attributable to expiration. [ 44 ] On cross examination, Ms.

Hawrish acknowledged the spatter stains could have been created by as little as one impact with a wet blood source in close proximity. However, she reiterated that the limited amount of spatter pattern is not necessarily consistent with a limited number of blood events or forces because other events or forces could occur without making a blood pattern. [ 45 ] It is undisputed that the blood stains in the report co-signed by Ms. Hawrish have been identified by the DNA profile to be Ms. Johnson’s blood. [ 46 ] Professor Margaret Mayne Correia gave evidence as an expert in forensic anthropology.

She confirmed that the remains recovered from the Remains Site were human and retained limited tissue to be tested for DNA (again later confirmed to be Ms. Johnson’s). The initial focus of her testimony related to the evidence of scavenging. She noted trauma unrelated to animals in her Report at para 3(v): This individual has evidence of perimortem injury to the nose, and upper dentition. The nasal bones are fractured (Image 1). The upper central incisor implant has been fractured as well.

There is no evidence of healing to the nasal fracture, and no evidence that this relates to the scavenging, although that cannot be ruled out. The damage to the tooth crown is extreme (Image 2).

It is not possible to determine the timing of the damage to the crown. [ 47 ] Cross-examination confirmed that the fracture to the nasal bones could have occurred shortly before death, up to several months later, depending on the state of outdoor freezing. [ 48 ] Professor Mayne Correia agreed that animal scavenging is an active process, and she could not rule out that movement itself could “potentially” have led to the injuries reported.

In her opinion, based on studies on animal scavenging, nasal fractures do not happen very often and only where the remains are well dried out, which is why she excluded dropping of the skull as an explanation. [ 49 ] According to Professor Mayne Correia, the damage to the incisor cannot be attributed to animal activity because carnivores are not interested in teeth. However, she admitted the force required to cause such damage falls outside of her expertise. [ 50 ] Forensic Pathologist Dr. Cecilia Wu, of the Office of the Chief Medical Examiner, assessed the skeletal remains and obtained

a toxicology analysis of the limited soft tissue that was recovered. Her Autopsy Report supported the analysis of Professor Mayne Correia. [ 51 ] In her testimony, Dr. Wu acknowledged the nasal fracture found by the Professor and that it appeared to be a fresh nasal fracture in relation to death. She was not able to comment on the level of force required to cause such a fracture, whether from an assault or fall; but she did agree that a strike with a human fist to the face is sufficient to cause a fracture in the nasal structure.

She noted the nose is a thin bone and agreed it is one of the most delicate bones in the body; it can be easier to break than other bones, such as the femur. [ 52 ] Dr. Wu could not specify a cause of death based upon the remains found, stating in the Autopsy Report that “ Although this case is highly suspicious for foul play, there are limited remains for inspection and analysis at autopsy. There is no longer soft tissue to examine for injury.” [ 53 ] Asked during cross-examination whether a cocaine overdose could result in a pulmonary or diffuse alveolar hemorrhage, Dr.

Wu stated that acute and chronic cocaine use can damage lungs and over time lead to pulmonary hemorrhage in some cases. A hemorrhage can present where blood comes out of the nose or mouth, but coughing up blood is not usually a common feature of cocaine use. [ 54 ] Defence counsel presented Dr. Wu with a peer-reviewed

article published in June 2016 in the Journal of Medical Toxicology, titled Intranasal Fentanyl Intoxication Leading to Diffuse Alveolar Hemorrhage. The

article noted evidence of acute and chronic diffuse alveolar hemorrhage found in over half of patients who died of cocaine overdose in one autopsy series, including cases where pulmonary hemorrhage was not clinically apparent. [ 55 ] Dr. Wu expressed a concern that the

article did not explain how much of the lungs in the study had experienced the hemorrhage or what portion was acute and what portion was chronic. [ 56 ] Dr. Wu testified that alveolar hemorrhage has not accompanied any cases she has worked on or discussed over the past 8 ½ years, where the individual has died solely from a cocaine overdose to the extent that frank blood was clinically showing in the airways. After-the-Fact Conduct [ 57 ] It is basically undisputed that: Ms. Johnson died in the Apartment, the Accused removed her body down to his Dodge truck and transported it 37 km to the Remains Site.

Upon return to the Apartment, the Accused wiped the obvious signs of blood from several surfaces. [ 58 ] It is also undisputed that on December 28, 2020, the Accused took the Dodge truck to Bubbles Carwash. The truck was thoroughly cleaned inside and outside, which took approximately three hours at a cost of $416. Nonetheless, luminol tests disclosed the presence of blood in the Dodge truck including underneath the floor carpets in the back seat.

The Accused told police the truck smelled from the time he bought it and he intended to give it to his grandmother. [ 59 ] In addition to the disposal of the body and clean-up activities, the Accused’s after-the-fact conduct includes his post- Christmas lies, fabrications and manipulations. One of numerous lies, for example, was that when the Accused was interviewed by the police on December 28, 2020, he denied having been with Ms. Johnson on the evening of December 24, 2020, but claimed he had lent her $20 earlier that day. Fabrications included prolonged versions about how Ms.

Johnson came to possess the S20 which he passed on to his uncle, Ben Courtorielle (“Uncle Ben”), post Ms. Johnson’s disappearance; as well that Ms. Johnson was never in his truck nor did she have access to his Apartment. Manipulations engaged police and family in false scenarios including alibis and innocent activities in support of the alleged non-involvement of the Accused in the disappearance of Ms. Johnson.

Nothing turns on separation of these labels or categories, except to underscore that the Accused markedly exceeded the right to remain silent; he attempted various means to avoid any responsibility in this tragic loss of life over a prolonged period. [ 60 ] I will address the whole of the Accused’s after-the-fact conduct evidence in the analysis together with submissions of counsel on this aspect.

It needs to be considered and weighed with care to avoid any unfair inferences which may be irrelevant or improper in the face of the admission of the Accused at the outset of trial that he committed an indignity to the human remains of Ms. Johnson. [ 61 ] For similar reasons, it is important to carefully consider the testimony of Mr. Courtorielle in the context of the issues raised, acknowledging that he carries no onus of proof whatsoever.

Position of the Parties Crown’s Position [ 62 ] The fundamental dispute on the evidence is whether the Crown has proven beyond a reasonable doubt that the Accused committed an unlawful act, namely an assault, that caused or materially contributed to the death of Ms. Johnson. The Crown relies on an assessment of all the evidence as overwhelming any doubt upon which the Defence purports to rely. [ 63 ] The Crown argues the Accused’s version of events presents no basis for reasonable doubt because it is part of a relentless stream of lies and flawed concoctions to escape responsibility.

The hypotheticals put to experts by former Defence counsel are unsupported on the whole of the reliable evidence. So too the variables ascribed by Defence to the Crown’s evidence from the whole of the police investigation do not detract from proof of manslaughter. [ 64 ] The Crown asserts that the entirety of the evidence proves the Accused struck

Ms. Johnson in the bedroom which caused or materially contributed to her death. The Defence [65] The position advanced by former Defence counsel at the conclusion of all evidence is that the police investigation, includingforensic analysis and the restricted use of after-the-fact conduct, does not meet the Crown’s onus of proof in relation to the offence ofmanslaughter. The forensic evidence acknowledges uncertainty as to the cause of death and cannot exclude the reasonable possibilitythat Ms. Johnson died from a pulmonary hemorrhage arising from a cocaine overdose.

Such doubt is further reinforced by the evidenceof the Accused as to what happened in the Apartment. [66] I will defer the respective arguments of both counsel on reliance and available inferences tied to after-the-fact conduct. Thesepositions need to be more proximate to the court’s analysis of this challenging area of the law.

Law and Issues [67] Manslaughter has long been described as a general intent offence where the Crown is not obliged to prove beyond areasonable doubt a specific intention or purpose to cause death: R v Mack, (1975), 22 CCC (2d) 561 (Alta SC (App Div)). [68] Moreover, the death need not be objectively foreseeable.

Only the risk of bodily harm, which is neither trivial nor transient,needs to be objectively foreseeable, measured by a reasonable person in the same circumstances: R v Creighton, (SCC),[1993] 3 SCR 3 at paras 12, 39, 118 and 119. [69] Cases have expressed the need to prove that the actions of an accused constituted a significant contributing cause.

Whatderives from the unlawful conduct therefore does not have to be the only (or even the principal) cause of death, provided that any othercause is not an intervening event that independently severs the link in the chain of events leading to the death of the victim in a way thatcannot have been reasonably anticipated: R v Reid (2003), 2003 NSCA 104 , 180 CCC (3d) 151 (NSCA); 2003 NSCA 104. [70] Assault, as contended by the Crown, is unlawful where evidence establishes that an accused person: (

a) has applied force, directly or indirectly; (

b) intended to apply force; (

c) did not have any consent to the force from the victim; and (

d) was aware of the lack of consent. [71] For the Accused to be found culpable in the death of Ms. Johnson, I must consider the following three questions: (

a) Did the Accused commit an unlawful act of assault on Ms. Johnson, contrary to s 265 of the Code? (

b) Was the force applied to Ms. Johnson objectively dangerous? In other words, would a reasonable person in the same circumstanceshave realized that he was exposing Ms. Johnson to a risk of bodily harm, being a hurt or injury that interfered with Ms. Johnson’s health or comfort and was more than just brief (transient) or minor (trivial)? (

c) Did the force applied to Ms. Johnson cause her death or was it a significant factor leading to Ms. Johnson’s death even if thatconduct was not the sole or main cause of death? [72] As a matter of common sense, a person usually knows what the predictable consequences of his or her actions are and meansor intends to bring them about.

This “common sense inference” may even apply where an accused is impaired: R v Walle, 2012 SCC 41at paras 58-68. [73] In addition, the law still requires that accused persons must take their victim as they find them, even if the extent of thevictim’s response to the assault was unforeseen or uncommon. [74] I must be satisfied of the Accused’s culpability beyond a reasonable doubt. More is required than proof that the Accused isprobably or likely guilty: R v Lifchus, (SCC), [1997] 3 SCR 320 [Lifchus] at paras 36 and 39.

However, as advised byCory J at para 31 of Lifchus, “the Crown is not required to prove its case to an absolute certainty since such an unrealistically highstandard could seldom be achieved.” [75] The standard of proof is just below absolute certainty but more than on a balance of probabilities: R v Starr, 2000 SCC 40 atparas 95 and 96. In order to be satisfied of the Accused’s guilt beyond a reasonable doubt, I must be sure that the Accused committed anunlawful assault which caused or contributed to the death of Ms.

Johnson, based upon all the evidence before this Court: Lifchus at para39. [76] As with all homicides, particularly where only the Accused and Ms. Johnson were present inside the Apartment, the evidencerequires careful scrutiny.

Analysis [77] The Accused elected to testify at trial. His account as to what transpired surrounding the death of Ms. Johnson, together withthe Police Statements and any other exculpatory evidence, whether presented by the Crown or the Accused, must be considered ascontemplated in R v W(D), (SCC), [1991] 1 SCR 742 [W(D)] and R v Ryon, 2019 ABCA 36 at paras 29, 49 and 51. TheAlberta Court of Appeal noted in R v Cuthill, 2018 ABCA 321 (at para 94) that: “... the concerns raised in W(

D) apply to all exculpatoryevidence that requires an assessment of credibility.” [78] In assessing his evidence, it merits emphasis that the Accused is presumed innocent throughout; he is under no obligation toprove anything. Step 1 - Do I believe the Accused’s evidence? [79] Dealing initially with the Police Statements, this evidence of the Accused exposes a stream of unrelenting dishonesty, muchof which was generically acknowledged during his trial examination-in-chief.

Nonetheless, it is important to highlight some of the moreegregious deceptions as a measure of the extent of his lies as well as deflective strategies which he attempted to use when confronted withcontradictions from the investigation. [80] In the initial inquiry by Cst. Broadfoot on December 28, 2020, the Accused conveyed a false alibi that his Uncle Ben was withhim during the evening of December 24, 2020. The following day, the Accused gave Uncle Ben the S20 phone telling him the phone hadbeen recently used by Ms.

Johnson but he did not have the password. [81] By December 31, when the Accused was first interviewed by Det. Lai, he abandoned his initial alibi as a concoction by UncleBen which the Accused purported to not understand. What he did not reconcile was that he was the first person to allege to the police thathe was with Uncle Ben the evening of December 24. [82] The attempts to deceive Det. Lai do not need to be reviewed in detail. However, some of the most prolonged and blatant liesare important to bear in mind in assessing the Accused’s trial testimony, including: (

a) Changes in the story of the Accused: attempting to accommodate contradictions from the police investigation, i.e., when theAccused last saw Ms. Johnson; the timing and nature of their relationship; the ownership, gifting and use of the S20; what stores heactually attended as cross-checked by video surveillance; the phone call(

s) overheard by Uncle Mark and Ms. Ward; and whether Ms.Johnson was ever in the Dodge truck; (

b) Use of layered details of lies: his favourite energy drink purchases; specific walking/driving routes and destinations; variableexplanations for paying $20 to Ms. Johnson near her mother’s place; (

c) Manipulative antics in custody: the feigned reaction to the significance of Milwaukee beer cans being found behind the Apartment;crying in full knowledge that his lies were impeding a serious investigation; regular use of stock phrases like “100% not gonna lie …”;and talking plaintively as if to Ms. Johnson while alone in the interview room but looking up at the camera before saying: “… I knowshe’s still alive. Where are you, babe? I know you’re still out there, I can feel you…”; and (

d) Aspersions against others as potential suspects including Ms. Johnson’s mother and some associates, and 10 allegedly criminalfriends of Ms. Johnson; in addition to offering to show police some suspect places where he occasionally dropped off Ms. Johnson. [83] I find nothing said by the Accused in the Police Statements that may be relied on as exculpatory or that gives rise to areasonable doubt. [84] Turning to his trial testimony, the Accused noted that he is a 37-year-old Indigenous person with a grade 11 education. Hespent most of his youth being raised by his grandparents.

He described limited work experience. He has fathered 7 children, none ofwhom are in his care. He profiled a criminal record and parole status on a 4 year, 10 month incest conviction, with 18 months still toserve as of the end of December 2020. [85] The Accused admitted under oath that he intentionally lied to the police on numerous occasions, including repeated assertionsthat Ms. Johnson had stolen his new S20 from the Dodge truck. [86] He acknowledged an intimate relationship with Ms. Johnson and that she was staying with him mostly at the Apartment inDecember 2020.

He insisted in his evidence at trial that she did not, however, have the access code to his Apartment. The failure toreport their intimate relationship and co-residency arrangements was in breach of his parole terms. [87] To introduce his own chronology of December 24, 2020, the Accused admitted he was with Ms. Johnson overnight from the 23rd through until he dropped her off at her mother’s place around 4:00 pm on the 24th. He then went out to his Uncle Mark’s place.

Hethought he went quadding with them but remembered he definitely went skating with the family in Stony Plain between 6:00 and 7:00pm, or later. [88] The Accused testified that Ms. Johnson sent text messages and made a voice call to him in the early evening, stating shewanted to come to the Apartment. He said fine as long as she was not drinking because he did not want someone drunk at his place. Theyhad a phone conversation on his way driving home from skating. He arrived at the Apartment after 9:00 pm. [89] Asked if he had any arguments with Ms.

Johnson that day, the Accused said they had disagreements but not really arguments,

nothing unusual. He did not address whether he was mad or in a hurry to leave from skating when he found out she had been drinking. [ 90 ] In his evidence, the Accused said that upon his arrival at the Apartment, Ms. Johnson was not inside but she came in holding the S20. She asked what took him so long and he did not answer her. She then continued talking on the phone and texting as she walked back and forth. He got ready to watch an animé movie. She changed her clothes and asked about the visit with his uncle.

She then complained that he had not answered his phone and he said words something like “no, I was doing up my skates or something.” [ 91 ] Although they had no plans, the Accused recalls they ended up deciding they would smoke something to get high and he gave her $100. Ms. Johnson went outside, (although he did not know where) and it was not very long (5-10 minutes, could have been longer) before she came back with a brown/tan bag he thought contained crack cocaine. They smoked it. [ 92 ] The Accused smoked two hits on tin foil with a pen tube and snorted a little bit.

He mostly smokes weed but had done crack a bit when he was younger. This time it gave him a high that lasted a bit longer. Ms. Johnson smoked some and carried the rest on a book into the bedroom while he watched his movie. [ 93 ] After going to the bathroom, the Accused went into the bedroom and noticed that Ms. Johnson was sitting on the bed with her head down towards her chest. He saw blood running down her nose and he panicked. Leaning over to shake her, he then slapped her face in an attempt to wake her up. In cross-examination, he described and actioned two or three smacks in a panic to get Ms.

Johnson to wake up and that he got blood on his hand. [ 94 ] Ms. Johnson was motionless and not breathing. He picked her up from the bed and laid her on the floor thinking that CPR would be easier down in this position, but he did nothing; he just sat back against the wall. In cross-examination, the Accused confirmed he has his ticket in CPR and knew from that training not to move the body, but claimed he panicked. [ 95 ] The Accused then described seeing blood coming out of Ms. Johnson’s mouth and on his right hand. He continued to sit on the floor and later made a phone call to his Uncle Mark.

After washing his hand in the sink and his foot in the bathtub because of a misstep, the Accused lifted Ms. Johnson with her arm around his neck and walked her downstairs out to the passenger side of his Dodge truck. He did not bring his own cell phone but recalls having both of her cell phones on the passenger seat. He could not explain why. [ 96 ] The Accused said that he thought of taking Ms. Johnson to the hospital but there were a hundred things running through his mind. He drove without destination, stopped on a dead-end road then continued away from that spot and later saw a place with trees.

He stopped again and took Ms. Johnson’s body out of the vehicle and laid her in the bush; he said he did not know why – it just came to him instantly. [ 97 ] When he returned to the Apartment, the Accused cleaned up the blood on the floor with a towel and sat on the floor again for a while. He remembered also using a dish cloth, mop, Pine Sol and Lysol spray, moving all over the place. He called Uncle Mark again to confirm he was heading back to Enoch First Nation, without mention of the missed phone calls to his cell phone. Driving his other vehicle, a Nissan Kicks, the Accused stopped at the 7 Eleven on route.

Upon arrival at Uncle Mark’s, he answered some questions and slept a bit in the basement before leaving the next morning. [ 98 ] The Accused ascribed some of his actions or inertia as impacted by panic and drugs which is important to assess. Notably the Accused testified that he thought about some logical steps to be taken in the situation (CPR without moving the body, call 911, transport to hospital) but he pursued none of them. [ 99 ] In cross-examination, the Accused said he knew where hospitals were located but just simply drove because he was panicking. Although he was worried about Ms.

Johnson and claimed he did not know if she was already dead, he then testified that she was cold as he put her in the vehicle. He elaborated further to describe that she was clammy on her back and stomach. And yet, he could not explain why he abandoned the plan to take her to the hospital and instead, drove away from everybody. [ 100 ] Although he always carries his cell phone, the Accused said he forgot to bring it with him. He said he did not know why he brought both of Ms. Johnson’s cell phones on that drive but did not think of disposing of their information, although he did delete a number of images of Ms.

Johnson from his phone. He was sure he put the S20 on the kitchen counter and simply did not know what happened to Ms. Johnson’s personal cell phone. [ 101 ] Despite recounting many details from that night, the Accused said his inability to estimate the time taken at different points may have been because of the drug use, which at times affected his ability to recall details. [ 102 ] The Accused acknowledged that his failure to report the intimate relationship and residency with Ms.

Johnson was in breach of the conditions of his parole; but he did not know what the effect would be of being in breach of this parole term. [ 103 ] I have considered whether to accept the Accused’s version of events, which fundamentally would seek to infer that the death of Ms. Johnson was an accidental drug overdose. A number of points arise in relation to the alleged acquisition and consumption of crack cocaine that challenge the veracity of his version: 1. The scenario raises a conflict in attitude of the Accused towards lifestyle choices, particularly as it may affect his probation. Having expressed to Det.

Lai his strong rules against drinking at his Apartment, which makes him mad (as corroborated by Ms. Cappo and Uncle Mark), the Court finds it incongruent that the Accused would condone the spontaneous purchase and consumption of crack cocaine at the Apartment; 2. The Accused testified that his drug of choice is usually weed and that he had not used crack since he was younger; 3. The evidence as a whole indicates Ms. Johnson’s priority that night was to drink beer. There is no corroborating evidence to suggest that she wanted to score drugs:

a. Ms. Cappo testified Ms. Johnson bought and was drinking beer at her mother’s place. When Ms. Johnson left her mother’s place and took the taxi to the Apartment, she brought with her 5 cans of beer; b. These beer cans were found allegedly left behind the apartment building; c. Ms. Mercredi testified that during their telephone call, Ms. Johnson told her she fell off the wagon and was drinking; d. Mr. Roan thought from his phone call with Ms. Johnson that she had been drinking while she waited for her friend to come over; and e. When Ms. Cappo texted whether Ms.

Johnson wanted to come to Evander’s place instead, Ms. Johnson’s last text asked if there was beer. This text was over 20 minutes after the Accused had returned to the Apartment. There was no mention by Ms. Johnson to her best friend that she was going out to score drugs, much less that she might be out of the Apartment when Ms. Cappo arrived. 4. The evidence is clear that the S20 did not leave the apartment building between 7:10 pm and 10:59 pm. Nor is there any record on the S20 of arrangements being made for a drug transaction; however, any inference on this point is lessened by the non-recovery of Ms.

Johnson’s personal cell phone, last in the possession of the Accused. 5. The overall time frame is incredibly short (post 9:55 pm until 10:50 pm) to discuss, agree, then purchase, consume, and fatally overdose on cocaine, while the Accused watched a movie, went to the bathroom, went into his bedroom, discovered Ms. Johnson on the bed, moved the body to the bedroom floor and sat against the wall for a while, before calling Uncle Mark; 6. There was no evidence of drug use or residue found in the Apartment; and 7. I have no evidence that Ms.

Johnson was a cocaine user, much less that she may conceivably fall within the study group for having a risk for pulmonary hemorrhage. [ 104 ] Mindful of the distinction between credibility (the witness’ sincerity or honesty) and reliability (the witness' ability to observe, recall, and recount events accurately), set out in R v GF , 2021 SCC 20 at para 82 , I do not find the Accused to be credible; nor is his version of events regarding the death of Ms.

Johnson reliable. [ 105 ] Turning first to an assessment of the Accused’s credibility, as agreed by counsel, the criminal record of the Accused (absent any convictions related to honesty) is not relevant. The breaches of parole terms, particularly as tied to the failure to report the intimate relationship and co-residency with Ms.

Johnson may, however, inform somewhat as to the level of candour and trustworthiness of the Accused. [ 106 ] I have previously reviewed the concerns with the level, frequency and variety of deceptions used by the Accused during his Police Statements. [ 107 ] More broadly, the Accused’s deceptions were not just aimed at the police. He also deceived and manipulated his Uncle Ben and his Uncle Mark as to his involvement in Ms. Johnson’s disappearance.

It would appear they were each initially supportive of him. [ 108 ] As previously summarized, the Accused told Uncle Ben on December 28, 2020 that he had nothing to do with Ms. Johnson’s disappearance and that he had only seen her on Christmas Eve when he met her outside her mother’s home to give her $20 (ASF at para 29). [ 109 ] Additionally, the Accused gave Uncle Ben the locked S20 on December 29, 2020 (ASF at para 27), the day after his first interview with the police. He knew it had been used by Ms. Johnson who was “missing”. Uncle Ben answered a call from Ms. Cappo on the S20 phone that same day.

She was still searching for her best friend. Following his own arrest, on December 31, 2020, Uncle Ben turned over the S20 to the police. [ 110 ] For the Accused to give the S20 to Uncle Ben without telling him that it had travelled to the Remains Site and may well have other relevant data demonstrates a callous manipulation of a supportive but uninformed relative. [ 111 ] Although there is no evidence of the content of the phone call between Uncle Mark and the Accused at 10:50 pm on December 24, 2020, it is undisputed that following that call the Accused decided he would return to Enoch First Nation.

Between roughly 11:00 pm and 12:30 am, Uncle Mark made seven unanswered calls to the Accused worried about him. The Accused finally called back at 12:40 am. [ 112 ] The Accused arrived at Uncle Mark’s home at Enoch around 1:30 am, while the children were opening presents. According to Ms. Ward, the Accused seemed more wound up and upset than previously. He was wearing the same clothes as before but not the black jacket he wore for skating. The Accused complained that his hand hurt and said it was from falling out of the Dodge truck at his place, because it has no running boards.

Uncle Mark had a similar recall that the Accused was upset as I previously reviewed and it was on the return visit that the Accused complained his hand was sore. [ 113 ] At the end of his examination-in-chief, the Accused said he hurt his hand falling out of his truck earlier in the day and that he had washed it in the kitchen sink. I disbelieve this account with added detail about where the hand was washed, because the timing contradicts both Uncle Mark and Ms. Ward whom I found entirely credible despite some reluctance of Uncle Mark to testify.

The evidence of each wa s confined to their personal knowledge and observations. Neither one was cross-examined, including as to what they overheard in phone calls or the timing of the Accused’s complaint about hurting his hand. [ 114 ] By December 28, 2020, Ms. Ward told the Accused she was worried for her family because he was a suspect in the missing girl case, and they had to move out of their home for two weeks. That was the last time they discussed the matter.

[ 115 ] It is clear that the Accused did not tell his Uncle Mark anything about what had happened at his Apartment and that he had disposed of Ms. Johnson’s body. Instead, he took refuge with them on the night of her disappearance. [ 116 ] These deceptions and manipulations of relatives as to his involvement in Ms. Johnson’s disappearance exacerbate the Accused’s lack of credibility. He was, of course, entitled to keep silent but that is not what he did.

His involvements of relatives were quite distinct and remote from the confines of a fear, in speaking with the police, that he may be returned to jail for breach of parole. In the same way, having testified that his whole purpose in the Police Statements was “deny, deny, deny,” he did so much more in his prolonged attempts to manipulate and deceive Det. Lai. [ 117 ] Defence invites the Court to find the Accused credible or at least entitled to a reasonable doubt, specifically citing his insistence that Ms. Johnson had no Apartment access code.

Former counsel argued that it would have been simpler to just concede the contrary: that she was in the Apartment when he left skating in Stony Plain and when he arrived home at 9:15 pm; except, that is not what the Accused swears to be the truth. [ 118 ] Upon full consideration, I categorically reject this strategic argument because it is fundamentally inconsistent with the whole of the evidence and totally illogical. 1. The accuracy of the records and video of Ms.

Johnson’s taxi ride to the Apartment places her at that location with an offer that she would go get the extra $1 cab fare from the Apartment if needed. 2. That taxi was arranged by Ms. Cappo who described that her friend was going “home” and said she had been in the Apartment with Ms. Johnson herself a few times in December. 3. The texts between Ms. Johnson and Ms. Cappo on December 24 raise no inference except that Ms. Johnson arrived at the Apartment and continued to drink the beer that she brought with her from her mom’s place. 4. The telephone records confirm that Ms.

Johnson accessed both the Apartment Wi-Fi and the closest cell tower during this entire two hour period. 5. The conversation with Ms. Mercredi confirmed that Ms. Johnson was drinking while her boyfriend was out skating. 6. The evidence of the Accused himself confirmed that Ms. Johnson had contacted him in the early evening, stating she wanted to come to the Apartment. He said fine as long as she was not drinking because he did not want someone drunk at his place . 7.

It defies logic that his girlfriend would pay for a taxi, phone the Accused upon arrival at 7:19 pm, talk for 6½ minutes and then wait outside – or in the lobby or hallway of the apartment building – for two hours on December 24 th until the Accused got home and then just walk in because the door was open. 8. It is similarly illogical to assume that Ms. Johnson would drink beer outside the Apartment alone and not rejoin Ms. Cappo if she lacked access to amenities of the Apartment. [ 119 ] Rather than a sign of credibility, I interpret the insistence of the Accused that Ms.

Johnson never had the Apartment access code as another example of his tenacious and inexplicable lies, to which Det. Lai was subjected in the Police Statements. What appeared important to the Accused was to repeat those messages enough times to show he’s honestly not going to lie. The difference with this deception about Apartment access is that it was sworn court testimony. I do not find the Accused to be credible. [ 120 ] That finding spills over to an assessment of the reliability of the Accused’s evidence. In his recounting the fate of Ms.

Johnson, I observed that the emotion and delivery of his answers was disingenuous. More important, however than his demeanor and comportment were the actual words he used as to what he could and could not recollect. For example, he said he could recollect sequentially shaking, slapping, and moving Ms. Johnson’s body first to the floor then later walking her to the truck. He became increasingly detailed in describing how the skin felt.

Similarly, he could recount: where he washed his hand as distinct from his foot; what cleaning products/aides he used; his stop at the 7 Eleven before returning to Uncle Mark’s place with berries which he ate. [ 121 ] By contrast, the Accused had no recall or explanation for moving Ms. Johnson from the elevation of the bed to the floor to do CPR contrary to his training. I find the alleged movement off the bed was not for CPR but to proffer an explanation for the blood accumulated at the baseboard by the bedroom doorway.

Similarly, he had no recall or explanation for moving her out to the truck and out of town, knowing hospitals were located in the area, but instead did nothing to help her. I find the explanations of panic and drug use do not begin to account for this Court’s concerns with the Accused’s testimony. [ 122 ] The Accused had the presence of mind to take both cell phones of Ms. Johnson but no recollection of how he carried them or why they ended on the passenger seat of his truck; with only one of them being brought back to the Apartment and left on the counter before it was given to Uncle Ben.

By contrast, he left his own cell phone in the Apartment, making it impossible to answer calls from Uncle Mark or others while he drove and disposed of Ms. Johnson’s body. [ 123 ] The observations, recall and recounting of events by the Accused at trial were selective and unreliable. In assessing his testimony, I do not find it necessary at this stage to measure it against the evidence of the possibility of a pulmonary hemorrhage, much less the blood spatter evidence, the Police Statements or the after-the-fact conduct.

I will weigh his account against the evidence as a whole at Step 3. [ 124 ] The Accused is under no obligation to provide any explanation or context. He has proffered this evidence under oath, and I have concluded that he lacks credibility and his account is unreliable.

Step 2 – Even though I do not believe the Accused’s evidence, does it raise a reasonable doubt? [ 125 ] I now turn to the second stage of the W(

D) inquiry. Having rejected the testimony of the Accused, it must be considered whether his version of events itself raises a reasonable doubt. If I do not believe the Accused’s evidence, but I am left in a reasonable doubt by it, I must acquit. [ 126 ] Here I am best informed by common sense taken from the logic of the evidence or lack of evidence ( Lifchus at para 30 ).

As expressed in other cases, I must consider whether, even though I do not believe the Accused’s accounting of the circumstances, I am left with a reasonable doubt that it may be true: R v Gray , 2012 ABCA 51 at para 42 ; R v Achuil , 2019 ABCA 299 at para 18 . [ 127 ] To repeat, the starting point is that I do not believe the Accused’s version of what happened after he returned to the Apartment about 9:15 pm.

The Accused lacks credibility and his exculpatory assertions are unreliable. [ 128 ] Moreover, there is nothing from the Accused’s version of events in isolation from the whole of the evidence that raises a reasonable doubt in my mind as to the cause of Ms. Johnson’s death. The Accused hurried home; his testimony recounts nothing of his reaction to her drinking except a few benign snippets of conversation and that he intended to watch a movie alone. As a matter of common sense, the idea that he gave Ms.

Johnson $100 to go find drugs at 10 pm on Christmas Eve does not invite any residual concerns about reasonable doubt. [ 129 ] That said, the Accused’s testimony and the cross-examination of the experts is part of the whole of the evidence to be weighed against the Crown’s obligation to prove guilt beyond a reasonable doubt in review of the final element of the W(

D) test. Step 3 – On the whole of the evidence has the Crown proven its case beyond a reasonable doubt? [ 130 ] Even if I am not left in doubt by the evidence of the Accused who bears no onus to prove anything, I still must ask myself whether I am convinced beyond a reasonable doubt of the Accused’s guilt on the whole of the evidence I do accept. [ 131 ] Much of the evidence before this Court is circumstantial, including the Accused’s after-the-fact conduct.

As referenced in R v Villaroman , 2016 SCC 33 [ Villaroman ], at para 30 , drawing inferences from circumstantial evidence must establish that guilt is the only reasonable inference. It is important to examine reasonable doubt about the Accused’s guilt, both logically and in light of human experience; see also R v Dipnarine , 2014 ABCA 328 at paras 22-26 . [ 132 ] In addressing the cause of Ms.

Johnson’s death and the role of the Accused, the measure of reasonable doubt may derive not only from concerns about what the evidence does establish, but also from the absence of evidence: R v JMH , 2011 SCC 45 at para 25 . Forensic and Expert Evidence [ 133 ] I accept the evidence of Cst. Comeau as to where blood was found in the Apartment and the Dodge truck. Although I confirm there was some spread-out effect from the wiping and clean up by the Accused after the event, I am able to conclude that the bedroom was the major location source in the Apartment.

The baseboards near the entrance of that room indicated a greater concentration or pooling effect. The most visible blood was on the headboard, wall and pillow. [ 134 ] I also accept the blood spatter analysis as reported by Ms. Hawrish, including that the headboard and wall stains in the bedroom created no specific pattern. There is no dispute that the blood stains match the DNA of Ms. Johnson. I find the photos of the 21 blood marks on the poster to be significant, particularly given that a majority are around 5 feet above the floor and the highest droplet is within two feet of the ceiling.

These marks were all elliptical spatter stains which means they were caused by a force applied to Ms. Johnson as the blood source and travelled on a downward trajectory once they landed on the poster. Unlike the at least 175 blood stains found on the pillow, which could arguably include expiration because of the type of fabric, I accept as fact that the stains on the poster were spatter stains from the force of contact. I confirm the acknowledgment of Ms.

Hawrish that the spatter stains could have been created by as little as one impact with a wet blood source in close proximity. [ 135 ] I further accept the evidence of Professor Mayne Correia that there was evidence of perimortem injury to Ms. Johnson’s nose and upper dentition, including a nasal bone fracture and damage to her incisor tooth crown. Her testimony fairly acknowledged that scavenging can disperse bones, but I am satisfied, from the type of bones recovered in close proximity, that the Remains Site was the generally wooded area where the Accused disposed of Ms. Johnson’s body.

Although I am mindful that speculation can inform a reasonable doubt, I find there was no concrete evidence that these injuries were related to animal scavenging, and further that the damage to the incisor cannot be attributed to animal activity. [ 136 ] As to the evidence of Dr. Wu, I accept her assessment that the limited remains and lack of soft tissue affect the ability to specify a cause of death. I am informed by her opinion that the force of a fist would suffice to cause the damage observed to Ms. Johnson’s nose. However, it is important to acknowledge that Dr.

Wu was not able to give an estimate of the degree of force used; she noted that a fall may cause such damage. I reject any inference that a fall could at the same time reasonably account for the blood spatter on the poster above the bed. [ 137 ] The cross-examination on diffuse alveolar hemorrhage introduced a possible cause of death. I accept Dr. Wu’s evidence that acute and chronic cocaine use can damage lungs; over time it could potentially lead to pulmonary hemorrhage in some cases beyond her clinical experience. The studies that were marked as exhibits were of limited assistance beyond that response.

From her evidence I find hemorrhage coughing or nasal discharge of frank blood to be an uncommon feature of cocaine use, but not entirely speculative.

[138] The cross-examination of Cst. Comeau and these three expert witnesses did not raise any reasons to question the credibility ofthe witnesses or the reliability of their evidence. Drug Overdose [139] The only evidence that Ms. Johnson may have consumed cocaine on December 24 came from the Accused whose evidence Ihave found to lack credibility and to be unreliable. Since no other evidence raises a reasonable doubt as to drug consumption, much lessan overdose, I will simply add that the description of the Accused as to discovery of Ms.

Johnson sitting on the bed with her chin downwhere he slapped her to wake her up does not accord with the blood found in the bedroom. The blood spatter on the poster extendedsignificantly above the headboard; the stained pillow was on the opposite side of the bed from where the Accused said he moved thebody and first noticed blood coming out of Ms. Johnson’s mouth. [140] Confronted with the blood found in the Apartment, the Accused offered in his third Police Statement that Ms. Johnson hadsliced her hand a while ago and that it needed a staple. He also said her knee would bleed once in a while.

At trial, he agreed that hecleaned up blood as I have reviewed. It may be arguable whether the steps to clean up, including the false account that he cleaned theDodge truck to get rid of smells as he planned to gift the truck to his grandmother, may be wholly disproportionate to the risks ofresponsibility for a drug overdose. At a minimum, those steps affect his credibility and further undermine the reliability of his testimony. Additional Evidence [141] From all the evidence, I have concluded that Ms.

Johnson came to the Apartment as confirmed by her phone call to the Accusedat 7:19 pm when the taxi dropped her off. I have no doubt that the S20 was used by Ms. Johnson in the Apartment to communicate bytext and phone with friends and family. In addition to the call upon arrival, the S20 records confirm by agreement that the Accused spokewith Ms. Johnson at 8:39 pm and remained connected for 22 minutes as he travelled home. [142] I accept the testimony of Uncle Mark that he heard the Accused raise his voice to express that he was mad that his girlfriendwas drinking, before he left in a rush. Although Ms.

Ward was less clear about the timing of the call which made him mad, her evidencecorroborates the message relayed by the Accused on the phone about the rules of no drinking before he hung up. There was no cross-examination on this evidence, and I have no doubt that, as he was driving and on the phone with Ms. Johnson, the Accused knew she wasdrinking at the Apartment. [143] There is no dispute, and I am able to determine, that there were no communications by phone or otherwise between the end ofMs. Johnson’s last call with Mr. Roan at 9:55 pm and the attendance of Ms.

Cappo at the apartment building at 10:39 pm, where shecalled out for Ms. Johnson until shortly after 10:50 pm. That was when the Accused phoned his Uncle Mark before he re-attended their residence overtwo and a half hours later. At that point in time, he complained he had hurt his hand. [144] The evidence supports a compelling case that, between 9:55 pm and 10:50 pm, the Accused struck Ms. Johnson with his handusing sufficient force to cause injuries to her in the bedroom. The force applied to the face presented a risk of bodily harm thatobjectively interfered with Ms.

Johnson’s health or comfort and was more than just brief or minor. The force lacked any consent and wassufficient to cause prolonged pain to his own hand, as the Accused reported to his Uncle Mark and Ms. Ward when he returned to theirhome. Spatter blood on the poster, together with pillow stains and pooling at the baseboard by the doorway of the bedroom clearlysupport bodily harm. The Accused took no steps to address the injuries inflicted on Ms.

Johnson. [145] I find no credible evidence to support a reasonable doubt based on the theory of the Defence that death may have arisen from apulmonary haemorrhage caused by a cocaine overdose. I specifically reject any inference that the spatter stains on the poster could be theresult of slaps to awaken Ms. Johnson. [146] However, having regard to the high standard of proof beyond a reasonable doubt and the answers provided by Dr. Wu duringcross-examination, it is both fair and prudent to further consider the conduct of the Accused from the time he was aware that Ms.Johnson was bleeding and unresponsive.

I engage in this analysis, not because I find the pulmonary haemorrhage to be a reasonablysupportable possibility (as distinct from a remote theory); rather my purpose is to determine as a matter of fairness that all aspects of thecase have been fully examined to exclude all reasonable doubt. After-the-Fact Conduct [147] After-the-fact (post-offence) conduct refers to anything done or said by an accused person after the alleged offence/event tookplace: R v Calnen, 2019 SCC 6 at para 106 [Calnen].

It is “… commonly admitted to show that an accused person acted in a mannerwhich, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of aninnocent person”: R v Peavoy, . [148] In considering after-the-fact conduct it is important to assess the reasonableness of inferences to be drawn, in the context of theevidence as a whole based on human experience and common sense.

From that assessment it is then necessary to decide which, if any, ofthe competing reasonable (non-speculative) inferences should be drawn from the after-the-fact conduct: R v Figueroa, 2008 ONCA 106at paras 33-35. [149] Like any piece of circumstantial evidence, after-the-fact conduct may be subject to competing

interpretations and must beweighed in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion: Rv White, [1998] 2 SCR 72, (SCC) at para 21 [White (1998)]. [150] Alternative explanations for the accused person’s behaviour could include panic, embarrassment, fear of a false accusation, or

some other innocent explanation: Calnen at para 117 and White (1998) at para 22; R v White, 2011 SCC 13 at paras 23-25 [White(2011)]. [151] As a general rule, it is for the trier of fact: (

a) to decide, on the basis of the whole of the evidence, whether the accused person’s after-the-fact conduct is related to the offencebefore the court, some other culpable act or something else; and (

b) to consider how much weight, if any, the evidence should be given in the determination of guilt or innocence. White (2011) at para 137; White (1998) at para 27; Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2019) at §9.05, 89. [152] As articulated by former Defence counsel, the Accused’s lies to the police and his family members as well as his manipulationsafter Ms. Johnson disappeared are of no probative value in terms of drawing an inference of guilt to the offence of manslaughter.

It isargued that such after-the-fact conduct is equally consistent with his acknowledged guilt for the indignity to the human remains of Ms.Johnson, which is a serious offence. [153] Defence suggests the evidence of deception is relevant when assessing the Accused’s credibility in the specific context: 1. as a disadvantaged Indigenous person, the Accused was concerned he would be disbelieved and blamed because he is already acriminal and was in breach of his parole; 2. he felt a moral responsibility for having provided the money for Ms.

Johnson to buy the drugs on which she may have overdosed;and 3. he expressed variously that he panicked and wished he had acted differently, including a call to 911. [154] The Defence confirms that it is open for this Court to consider the disposal of Ms. Johnson’s body and the clean-up of the scene in the determination of whether it can be inferred that the Accused is guilty ofmanslaughter. While these steps are not evidence of guilt itself, the Court may ask whether someone who is involved in a drug overdosewould dispose of a body and/or engage in a clean-up that looked like this.

Put another way, was the conduct of the Accused concordantwith his explanation for what happened? [155] The Crown urges that the singular inference arising from the manner of disposal of Ms. Johnson’s body by the Accused is that he is culpable for unlawfully causing her death. Crown says the specifics of the disposal ofMs. Johnson’s body out of town in a remote wooded area were disproportionate to any jeopardy he might expect from being found inviolation of his parole. Additionally, the Accused deprived the state of the ability to medically assess how Ms.

Johnson died. [156] The Crown concedes that the probative value of the clean-up and the sustained lies after he dumped the body is lessened,because the guilty plea of causing an indignity to the human remains is a serious offence. The Crown urges the Court to rely upon all thisother after-the-fact conduct to reinforce that the Accused is not credible.

However, the response and disposal of the body supportinferences upon which the Crown urges the Court may rely as consistent with guilt for manslaughter. [157] Having already considered credibility and the substantive unreliability of the Accused’s evidence, the concerns with his clean-up as well as the lies, fabrications and manipulations remain consistent with my earlier conclusions.

Accordingly, I will concentrate myanalysis of the after-the-fact conduct on whether some aspects of that evidence may reliably support a conclusion that the Accused,having pled guilty to the indignity offence, is also guilty of manslaughter. [158] The caution in relying on inferences from after-the-fact conduct where an accused person pleads guilty to another offencederives from the Supreme Court of Canada in R v Arcangioli, (SCC), [1994] 1 SCR 129 [Arcangioli]. [159] In Arcangioli, an accused was charged with aggravated assault by stabbing.

He admitted to having committed the lesser offenceof common assault, testifying that he had punched the victim, but denied stabbing him. He said he fled after seeing another person stabthe victim in the back.

The trial judge instructed the jury that his flight from the scene was evidence from which they could infer a“consciousness of guilt.” [160] The Supreme Court of Canada disagreed that flight could assist in determining whether the accused punched or stabbed thevictim, holding at page 301: [W]here an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where anaccused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has noprobative value with respect to any particular offence. [161] In White (1998), the Supreme Court refined the caution somewhat at paras 21-23: 21 Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence.

In some cases it maybe highly incriminating, while in others it might play only a minor corroborative role. Like any piece of circumstantial evidence, an actof flight or concealment may be subject to competing

interpretations and must be weighed by the jury, in light of all the evidence, todetermine whether it is consistent with guilt and inconsistent with any other rational conclusion.

22 It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference ofconsciousness of guilt it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that ajury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to aconclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocentreason, such as panic, embarrassment or fear of false accusation.

Alternatively, the jury might determine that the conduct of the accusedarose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather than to someother culpable act. 23 Two legal doctrines have arisen in response to these concerns. As a preliminary matter, this Court held in Arcangioli that a juryshould not be permitted to consider evidence of post-offence conduct when the accused has admitted culpability for another offence andthe evidence cannot logically support an inference of guilt with respect to one crime rather than the other.

That rule is essentially a matterof relevance and will usually apply in narrow circumstances. More generally, this Court has also held that when evidence of post-offenceconduct is put to the jury, the jury should be "properly instructed" to ensure that the evidence is not misused: Arcangioli, at p. 143; R. v.Gudmondson (1933), 60 C.C.C.332 (S.C.C.), at pp. 332-33.

The content of such an instruction, particularly the appropriate standard ofproof, has been the subject of ongoing controversy in the Courts of Appeal and is addressed below. (at paras 27-32) (underlining added) [162] Given the reference to “narrow circumstances”, it would appear that the “no probative value” instruction is not automaticallyintended to apply to every situation where an accused person has pleaded guilty to an offence that is factually related to the charge(s)remaining before the court.

The caution against too broad a proscription is also captured in Matthew Gourlay et al, Modern CriminalEvidence, ed by Brian Greenspan & Vincenzo Rondinelli (Toronto: Emond Montgomery, 2022) at pages 164 and 167 in addressing thelevel of intent in homicide matters. [163] R v Thurston, (ON CA) considered an admission by the appellant to being an accessory after the fact, butwho denied any involvement in the murder itself. The Court of Appeal found the appellant’s post-offence conduct (disposal of evidence)was relevant to the issue of his culpability in the death of the victim.

It further concluded the Accused’s admission that he was anaccessory did not diminish the probative value of the after-the-fact conduct in regard to the murder charge. See also R v Kostyk, 2014ONCA 447 at paras 92-96. [164] As stated by Major J at para 32 of White (1998): 32 … It is possible to imagine cases in which evidence of post-offence conduct could logically support a distinction between two levelsof culpability for a single act, or between two offences arising from the same set of facts.

By way of illustration, where the extent of theaccused's flight or concealment is out of all proportion to the level of culpability admitted, it might be found to be more consistent withthe offence charged. Post-offence conduct might also be relevant in cases where the accused has admitted to committing a physical actbut asserts that the act was justified in some way; in those circumstances,

an act of flight or concealment might constitute some evidencefrom which, along with other evidence, the jury could infer that the accused was conscious that he or she had committed a culpable actand had not, for example, acted in self-defence. See Peavoy supra, at p. 241; Jacquard supra, at p. 348. [165] In the circumstances of this case, the Court is not dealing with an analysis of the levels of subjective intent which distinguishlevels of homicide. The broader question is whether the Accused had any culpable involvement in the actual death of Ms. Johnson.

Asthe trier of fact, I am prepared to review aspects of the Accused’s after-the-fact conduct because the disposal of Ms. Johnson’s body is aseparate offence from manslaughter, as distinct from a lesser or included offence.

However, as previously emphasized, it remainsimperative for the Court to be very cautious about whether the after-the-fact conduct is not just consistent with guilt but also inconsistentwith any other reasonable explanation. [166] Despite some potential overlap, I have divided the Accused’s after-the-fact conduct into three different categories: (1) lies,fabrications and manipulations; (2) demeanour evidence; and (3) response and clean-up. Lies, Fabrications and Manipulations [167] The Accused’s lies, fabrications and manipulation of the police may be relevant to whether the Accused is culpable in the deathof Ms.

Johnson and not just to his credibility.

However, this is the aspect where I am most cautious to consider whether any otherinference is available in the context of the guilty plea. [168] A trier of fact may not treat disbelieved exculpatory evidence as positive evidence of guilt unless there is evidence, independentof the fact of falsity itself, that the statement was concocted or deliberately fabricated: R v Selvanayagam, 2011 ONCA 602. [169] The trier of fact must be satisfied that the falsehood was deliberate, with a view to misleading or diverting attention: R vPritchard, 2007 BCCA 82 at para 56, aff’d 2008 SCC 59. [170] As fairly argued, the trier of fact cannot convict simply because the Accused lied to the police.

Innocent people lie to the policetoo. [171] Here, the Accused in his Police Statements variously denied any involvement or knowledge of the circumstances leading to thedisappearance or death of Ms. Johnson. I have previously highlighted (paras 80-82) some of the Accused’s more egregious lies anddeceptions. I have outlined additional examples below. [172] The Accused lied to the police on December 28, 2020 when he told them he had not been with the deceased on December 24th

and he had only seen her briefly on the street near her mother’s place in the morning to give her $20. Video footage showed the twotogether at the London Drugs in the morning (around 10:50 am) and phone records confirm that Ms. Johnson spoke with him from hisApartment around 7:19 p.m. before he returned to be with her. [173] In addition, the Accused told the police that Ms. Johnson had not been in his Apartment on the evening/night of December 24,2020. This denial was contradicted by the evidence of her arrival by Yellow Cab and the evidence that Ms.

Johnson continued to accesshis Wi-Fi network and the nearby Telus cell phone tower pinned her cell phones before and after his return. [174] The Accused lied to the police when he told them he knew nothing about the disappearance of Ms. Johnson and did not knowwhere she was. He told the police that if he knew where Ms. Johnson was, he would tell them.

His fabrications and manipulations wereequally used to deceive. [175] As previously outlined (paras 107-116), the Accused also lied to and manipulated his family members. [176] Recently, in R v Clifford, 2023 ABKB 169, Devlin, J considered the inferences that could be drawn from the false alibi theaccused had given to the police. At para 91, Devlin, J noted the accused had also lied to his aunt, elucidating: Mr. Clifford did not only lie to the police about his whereabouts. He also told a different but similar lie to Elizabeth Payne, who appearsto be his aunt. Unlike the police, Ms.

Payne was neither in a position to charge him for a breach of recognizance, nor to cause his fathertrouble for having obstructed their investigation. His lie to her could serve no purpose connected to either his own jeopardy for bailbreaches or his father’s jeopardy for obstruction. It makes sense only in relation to deflecting suspicion from himself about whathappened at the residence that night. [177] I am satisfied that the Accused’s lies, fabrications and manipulations were deliberate and sustained concoctions intended tomislead the police, to divert their attention from him as a suspect implicated in Ms.

Johnson’s disappearance or to evade responsibility forher disappearance and death. As a matter of human experience and common sense, the Accused’s lies to the police and family membersare reasonably capable of supporting the inference that he was involved in Ms. Johnson’s death. [178] I acknowledge that some of the Accused’s lies, fabrications and manipulations are also consistent with his knowledge that hehad disposed of Ms. Johnson’s body at the Remains Site, which is a serious offence.

While Defence arguments about sustained panic, asense of moral responsibility and regret for his actions fail to resonate in all the circumstances here, the perceived concerns as adisadvantaged Indigenous convict may merit some caution. I therefore give this first category of the Accused’s after-the-fact conductreduced weight in the determination of his guilt or innocence.

Demeanour Evidence [179] Demeanour evidence will be considered when it is “sufficiently unambiguous and demonstrative of a relevant state of mind soas to overcome concerns that a trier of fact may too easily equate what is perceived to be an ‘unusual’ reaction with a guilty mind”: R vTrotta (2004), (ON CA), 190 CCC (3d) 199 at para 41 (Ont CA), reversed by SCC on other grounds. [180] Here, very little demeanour evidence was made available. The Accused’s Uncle Mark testified that when the Accused finallyarrived back at his home during the early morning hours of December 25, 2020, he appeared fidgety and concerned.

He paced around.The Accused said he had a sore hand and then went to the basement to sleep before leaving again in the morning. [181] The spouse of Uncle Mark, Ms. Ward, recalls that when he returned to their home around 1:45 am on December 25, 2020, theAccused seemed more wound up and upset than previously. He was wearing the same clothes as before but not the black jacket he worefor skating.

The Accused complained that his hand hurt and said it was from falling out of the Dodge truck at his place, because it has norunning boards. [182] Defence counsel argued that the Accused’s demeanour when he went back to his Uncle Mark’s home after the incident may beattributable to a variety of reactions. I agree that the described level of upset would not easily differentiate between manslaughter andcausing an indignity. Although the timing and substance of the complaint about his hand is informative, I place very little weight on theAccused’s after-the-fact demeanour evidence.

Response and Clean-Up [183] In assessing what reasonable inferences should be drawn from the Accused’s after-the-fact conduct, I have taken intoconsideration the following responsive actions of the Accused after allegedly finding Ms. Johnson slumped over on the bed in hisbedro

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