R v Lightning, 2023 ABKB 581

Court of King’s Bench of Alberta Citation: R v Lightning, 2023 ABKB 581 Date: 20231016 Docket: 210624789Q1 Registry: Wetaskiwin Between: His Majesty the King Crown - and - Donovan Curtis Lightning, Linden Joseph Lee Buffalo, and Jake Ernest Lee Green Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice W.N. Renke _______________________________________________________ [ 1 ] In the early morning of June 23, 2021, a group of individuals drove onto the rural property of Clifford Stauffer in the County of Wetaskiwin, Alberta. Not long afterwards, Mr.

Stauffer was killed and his house was burned to the ground. The car the group arrived in was also burned. Mr. Stauffer’s blue Dodge Caravan minivan was stolen along with some other property. [ 2 ] Donovan Lightning, Linden Buffalo, and Jake Green were charged with second-degree murder in connection with Mr. Stauffer’s death and with arson knowing that or being reckless as to whether the property was inhabited or occupied. The Crown has sought conviction on the included offence of manslaughter and the arson offence.

[ 3 ] The trial proceeded by judge alone. The accuseds did not testify although their statements to police were admitted as evidence. [ 4 ] I’ll identify legal principles foundational to my deliberations and some background facts then address the questions I must answer. Table of Contents I. Legal Principles . 4 A. The Burden and Standard of Proof . 4 B. Statements . 4 C. Circumstantial Evidence . 5 D. Witnesses . 6 1. Witnesses Generally . 6 2. Vetrovec Witnesses . 7 E. Criminal Responsibility . 8 1. The Accused Actually Committed the Offence . 9 2.

The Accused Aided or Abetted the Commission of the Offence . 9 3. The Offence was Committed in Carrying Out a Common Unlawful Purpose . 9 II. Background . 10 A. Clifford “Curly” Stauffer 10 B. Mr. Stauffer’s Death . 11 C. Timing of Events . 11 D. The Cause of the Fire . 12 E. Some Events Before and After the Fire . 12 1. The Powerline Road Residence . 12 2. At the Acreage . 12 3. Return to Powerline Road . 12 4. Arrest of Mr. Lightning and Ms. Montour 13 III. Questions . 13 IV. Who were the members of the group that travelled to the acreage on June 23, 2021? . 13 A. Admitted Presence . 13 B. Jake Green . 14 1.

Statements . 14 2. Alibi 15 3. Observation Testimony . 15 4. DNA Evidence . 16 V. Who killed Mr. Stauffer and who burned his house? . 34 A. The Offences . 34 1. Manslaughter 34 2. Arson with Reckless Disregard for Human Life . 35 B. Responsibility of Mr. Buffalo for Manslaughter and Arson . 37

1. Manslaughter 37 2. Mr. Buffalo - Aiding in the Death of Mr. Stauffer 38 3. Mr. Buffalo and the Arson. 39 C. Responsibility of Mr. Lightning for Manslaughter and Arson. 39 1. Manslaughter 39 2. Assessment of the Evidence. 44 D. Inability to Identify the Perpetrator 48 VI. Did the members of the group share an unlawful purpose for travelling to the acreage and, if so, what was that purpose?. 48 VII. What other offences were committed in carrying out the unlawful purpose?. 49 VIII. What should members of the group have known about what would happen to Mr. Stauffer and to Mr.

Stauffer’s home incarrying out their purpose?. 50 A. The Test 50 B. The Circumstances. 51 1. Circumstances of Mr. Lightning and Mr. Buffalo. 51 2. Mr. Lightning. 52 3. Mr. Buffalo. 53 C. Assessment of the Circumstances. 53 1. Manslaughter 53 2. Arson. 55 IX. Conclusions. 56 I. Legal Principles A. The Burden and Standard of Proof [5] A person charged with a criminal offence is presumed innocent. Our law requires that I take as a fact that Mr. Lighting, Mr.Buffalo, and Mr.

Green did not commit any offence and that fact remains unless, at the end of the case on all the evidence, the Crownproves beyond a reasonable doubt that one or more of them is guilty of an offence: R v Villaroman, 2016 SCC 33, Cromwell J at para25; Woolmington v DPP, [1935] AC 462 (HL) at 481-482. That right is constitutionally confirmed by s 11(

d) of the Charter: “Anyperson charged with an offence has the right ... to be presumed innocent until proven guilty according to law ....” [6] The Crown has the burden of proving the guilt of Mr. Lighting, Mr. Buffalo, and Mr. Green. None of them has the burden ofproving his innocence, no burden even to raise a reasonable doubt about his innocence. None of them must prove anything. [7] Each of the accused had a constitutional right to remain silent in his trial, a right not to testify. I cannot and do not draw anyinference from the exercise of this constitutional right.

See R v Symonds (1983), (ON CA), 9 CCC (3d) 225 (ON CA),Martin JA at 227 (“It is fundamental that a person charged with a criminal offence has the right to remain silent and a jury is not entitledto draw any inference against an accused because he chooses to exercise that right”); R v Chambers, [1990] 2 SCR 129, Cory J at 1316;R v Noble, (SCC), [1997] 1 SCR 874, Sopinka J at para 72 (“As Cory J. stated in Chambers, it would be a ‘snare and adelusion’ to grant the accused a right to remain silent at trial yet then proceed to use the silence to find him or her guilty”). [8] The Crown has the burden of proving not that it is merely possible that Mr.

Lighting, Mr. Buffalo, and Mr. Green are guiltyof the charged offences and not that it is merely probable or likely that one or more of them is guilty of an offence, but that one or moreof them committed an offence beyond a reasonable doubt. Before I can convict Mr. Lighting, Mr. Buffalo, or Mr. Green of an offence, Imust be satisfied on all the evidence that there is no reasonable possibility that he is innocent of that offence, that the evidence does notsupport a reasonable inference that he is innocent of that offence. However, proof beyond a reasonable doubt is not proof beyond alldoubt or any doubt.

It is not a standard of absolute certainty. Proof beyond a reasonable doubt excludes or requires proof beyond all“reasonable” doubts about innocence, doubts that are not mere speculation, or imaginary or frivolous, or based on sympathy or prejudice:R v Lifchus, (SCC), [1997] 3 SCR 320, Cory J at para 31. [9] Whether evidence exculpating an accused raises a reasonable doubt must be assessed in the context of the evidence as awhole: R v Ryon, 2019 ABCA 36, Martin JA at para 47; R v Morin, (SCC), [1988] 2 SCR 345, Sopinka J at 361 – 362; Rv Thomas, 2012 ONSC 6653, Code J at para 24.

[10] The Crown is obligated to prove each element of the offence beyond a reasonable doubt. Further, the reasonable doubtstandard applies to “vital issues.” See R v Randall, 2020 ABCA 52 at para 62. If credibility is an important issue in a case, thereasonable doubt standard must be applied to credibility: R v W(D), (SCC), [1991] 1 SCR 742, Cory J at 757. B. Statements [11] Each accused provided a statement to the police. Each accused conceded the voluntariness of his statement. The Crownentered the statements as part of its case. Each statement is admissible only against the accused who made the statement.

The statementis admissible both for its incriminatory elements and its exculpatory elements. The statement is evidence both for and against the accusedwho made the statement. I am not bound to accept the truth of either the inculpatory or the exculpatory parts of the statement. Anaccused does not raise a reasonable doubt just because he or she denies responsibility in a statement: The Queen v Proudlock, (SCC), [1979] 1 SCR 525, Pigeon J at 551. Rather, it is my duty to consider each part of the statement along with the otherevidence to assess its evidential value.

See R v Applegarth, 2022 ABQB 243, Hillier J at para 69; R v Perkins, 2016 ONCA 588 para 19;McWilliams’ Canadian Criminal Evidence, 5th Edition, S. Casey Hill, David M. Tanovich, Louis P. Strezos (edd), §§7:120, 8:33;Sopinka, Lederman & Bryant: The Law of Evidence in Canada, S. N. Lederman, A. W. Bryant and Justice M. K. Fuerst (edd), §8.157. [12] Since the accuseds provided statements, those statements must be assessed in light of the presumption of innocence and theCrown’s burden to prove the accuseds’ guilt beyond a reasonable doubt.

In Ryon at para 51 and R v Achuil, 2019 ABCA 299 at para 18(respecting (ii) below), Justice Martin helpfully recast the elements of the W(

D) assessment of the totality of trial evidence under thereasonable doubt standard (with some qualifications omitted): [51] The charge [or a judge’s self-instruction] should impart the following information: …. (ii) ... if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if notbelieved still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit .... (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence), they may not simply assume theCrown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether thatevidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or ... otherexculpatory evidence) cannot be taken as proof of the accused’s guilt. [13] References to statements are by tab number, page, and line. C. Circumstantial Evidence [14] Aside from the testimony of Ms. Montour, the Crown’s contention that Mr. Green participated in the offences relies oncircumstantial evidence. Mr. Green made no admissions and the inferences to his participation rest on physical evidence and DNAdeposited on that evidence. [15] The Crown’s contention that Mr. Lightning personally killed Mr. Stauffer also relies on circumstantial evidence.

Aside fromthis evidence, while Mr. Lightning made some admissions his statement, he did not admit personal participation in the killing of Mr.Stauffer. [16] An important feature of cases built on circumstantial evidence is that all the evidence must be considered together, as a whole.The pieces of circumstantial evidence should support each other, and, if the Crown is to prove its case, lead to a single conclusion ofguilt and exclude all inferences of the accused’s innocence: R v Hudson, 2021 ONCA 772 at para 70.

For the Crown to succeed in acircumstantial case, the existence of each of the bits of circumstantial evidence, considered with the evidence as a whole, must make theaccused’s innocence so improbable that the evidence cannot support a reasonable inference of innocence: R v Uhrig, 2012 ONCA 470 atpara 13; R v McEwan & Lee, , [1933] 1 DLR 398, 59 CCC 75 (AB SC App Div) at 404(DLR). [17] A trier of fact must approach circumstantial cases with caution. We have a natural inclination to consider circumstantialevidence to form a single narrative.

See R v Osman, 2021 ONSC 7328, Roberts J at para 79 (“the human desire to make sense of eventswith a coherent narrative”). Our inclination to detect a narrative lead to two linked errors. The first error is ignoring gaps in the evidence,ignoring evidence that is missing but needed to support the narrative. The second error is ignoring alternative explanations supported bythe evidence, ignoring inferences of innocence: Villaroman at paras 26 and 37.

The linked errors lead to ignoring reasonable doubts. [18] Guilt must be established beyond a reasonable doubt in circumstantial cases, as in all other cases. [19] But this is also to say that the standard remains proof beyond a reasonable doubt. Doubt may arise from an acceptance ofreasonable inferences of innocence but should not be founded on unreasonable inferences of innocence, on speculation, conjecture, orassumption without a reasonable evidential foundation.

See Villaroman at para 42; R v Dipnarine, 2014 ABCA 328 at paras 22, 24-25;R v Tetreault, 2018 ABCA 397 at para 32; R v Cabrera, 2019 ABCA 184, affd sub nom. R v Shlah, 2019 SCC 56, Fraser CJA at para185(CA); R v Beckman, 2022 ABQB 298 at paras 99-100. D. Witnesses [20] References to transcripts are indicated by T, page number, line number.

1. Witnesses Generally [21] I have kept in mind that all, some, or none of the evidence of any witness may be accepted: R v JHS, 2008 SCC 30, Binnie Jat para 10. That observation applies respecting the statements made by the accuseds. [22] When assessing a witness’s credibility, two considerations are involved - on the one hand, a witness’s sincerity, orcommitment to tell the truth; on the other, the witness’s reliability or accuracy: R v Morrissey, , 97 CCC (3d) 193 (ONCA), Doherty JA at 205. [23] Two Crown witnesses, Ms. Shaylyne Crane-Skjersven (Ms. Crane) and Ms.

Jessica Montour, warrant comment at this point.They were present on the acreage with the group when the events occurred. Their testimony raised reliability concerns. They testified tohaving been intoxicated at the time of the events they witnessed at Mr. Stauffer’s acreage, and not only intoxicated but highlyintoxicated. They had been drinking for days before the events in question. Heavy drinking by all involved was acknowledged. Ms.Crane and Ms. Montour also testified to having bad eyesight.

This was offered in cross-examination, after having provided testimonyabout their observations during examination in chief. [24] As for sincerity or credibility as distinguished from reliability, special testimonial scrutiny and a special jury or self-cautioncaution are required for what are known as Vetrovec witnesses: Vetrovec v The Queen, (SCC), [1982] 1 SCR 811,Dickson J, as he then was, at 823. 2. Vetrovec Witnesses (

a) Identifying Vetrovec Witnesses [25] The identification of a witness warranting special caution depends on whether the evidence supports the finding that there arereasons to suspect the witness’s credibility. “Factors might include involvement in criminal activities, a motive to lie by reason ofconnection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on otheroccasions, lies told under oath:” R v Khela, 2009 SCC 4 at para 35, Fish J, quoting Rosenberg JA (a pre-appointment article). Witnesseswho are burdened by such factors may have motivations not to provide reliable testimony. (

b) Corroboration [26] It is dangerous to convict on the unconfirmed evidence of this sort of witness, although I may do so if satisfied that theevidence is true. In assessing the weight of the claims made by this sort of witness, I should look for independent evidence tending toshow that the witness is telling the truth: Khela at para 37. “Independent” evidence is from a source other than the witness herself.

OneVetrovec witness may corroborate another (if the corroborative evidence is accepted), but “extreme caution” must be taken if there isevidence of collusion between purportedly corroborative Vetrovec witnesses. The risk of collusion does not by itself precludecorroborative effect.

The trier of fact must decide whether the evidence of one witness “restores the trier’s confidence” in the evidence ofthe other: see R v Lawrence, 2020 ABCA 268 at paras 31-32; R v Hornby, 2018 ABCA 377 para 23. [27] The independent evidence need not directly implicate an accused in an offence or directly support the accused’s exculpatoryaccount of events.

The independent evidence, though, must be “capable of restoring ... faith in the relevant aspects” of the Vetrovecwitness’s account – it must be “capable of assuring the trier of fact that it is safe to rely upon the word of a disreputable witness:” R vMacIsaac, 2017 ONCA 172, Trotter JA at paras 38, 44. [28] Justice Dickson referred to corroborative evidence as supporting a tainted witness’s account relating to a “vital issue” orrelating to a “material particular,” rendering the witness’s testimony “credible as a whole:” Vetrovec at 827.

If the witness is right aboutthis, then the witness is right about that. (c) “Mixed Witnesses” [29] I have kept in mind Justice Martin’s cautions respecting a “mixed witness,” an unsavory witness called by the Crown whoprovides testimony that both inculpates and exculpates an accused, at para 25 of R v Ryan, 2014 ABCA 85: [25] The situation is slightly more complicated where a Crown witness offers testimony which both implicates and exculpates theaccused, commonly referred to as a “mixed witness”.

If in regard to such a witness’s evidence the court decides that a Vetrovec-typecaution is appropriate, care should be taken to ensure that the jury understands that the caution applies to the incriminating portions ofthat unsavoury witness’s testimony, that it does not usually apply to the exculpatory portions of the witness’s testimony, and that it issufficient if the uncorroborated or unconfirmed exculpatory testimony raises a reasonable doubt as to the guilt of the accused ....[emphasis added] See also R v Vassel, 2018 ONCA 721 at para 156. (

d) Ms. Crane and Ms. Montour [30] Again, I must make some observations respecting Ms. Crane and Ms. Montour. Neither Ms. Crane nor Ms. Montour facedcharges in this trial, but both were present when the events in question happened. Each had an interest in minimizing her involvement inwhat occurred. Ms. Crane had been observed to have blood on the leg of pants she had been wearing, clothing that has not beenrecovered. Accelerant was indicated (although not confirmed) on clothing worn by Ms. Montour when she was arrested. Ms. Montourwas in Mr. Stauffer’s van when she was arrested about 12 hours after Mr. Stauffer was killed and his van was stolen.

[31] Additional factors tended to undermine Ms. Montour’s credibility. [32] She lied to the police when arrested. She told the police she did not know the van was stolen and that she did not know Mr.Lightning who was driving the van when they were arrested. [33] She lied to police when she gave her statement. She made up a story about Mr. Lightning and Mr. Buffalo having abducted aperson. [34] There were inconsistencies between the statement she gave police and her testimony. Some were minor, such as the locationsof other people in the vehicle driven to the acreage and in the van as they left the acreage.

She came up with new information in hertestimony not mentioned in her statement, such as seeing one of the accuseds with a brown rifle and about the group stopping theirvehicle in a field on the acreage. She testified to having observed conduct of Mr. Buffalo outside Mr. Stauffer’s home and referred tostatements by him that would tend to show his involvement in Mr.

Stauffer’s death but hadn’t mentioned these matters to police. [35] There were inconsistencies between her testimony when examined by the Crown and when cross-examined by Defencecounsel, concerning, for example, whether it was dark or light when the events occurred and whether Mr. Lightning or any others did ordid not burn any clothes. [36] She admitted that she talked to Ms. Crane about what happened. Ms. Crane had been a good friend of hers for many years. [37] A particular danger with Ms.

Montour’s testimony was that she gave her testimony in an articulate, confident, and definitemanner – only to resile from aspects of her testimony in cross-examination. [38] It follows that I must be very careful about relying on the incriminatory testimony of Ms. Crane and particularly Ms. Montourin the absence of corroboration. E. Criminal Responsibility [39] The Crown could establish the criminal responsibility of an accused for the manslaughter and arson offences in three ways. 1.

The Accused Actually Committed the Offence [40] First, the Crown could establish, beyond a reasonable doubt, that one or more of the accuseds actually committed an offence:see s 21(1)(

a) of the Criminal Code. 2. The Accused Aided or Abetted the Commission of the Offence [41] Second, the Crown could establish that one or more of the accuseds was a “party to an offence” by either doing or omitting todo anything for the purpose of aiding any person to commit the offence or by abetting any person in committing the offence: ss 21(1)(b),(c). [42] “Aiding” requires proof that the person did “anything” that aided another to commit an offence.

The person must haveprovided assistance or help “for the purpose of aiding” the other person to commit the offence: R v Briscoe, 2010 SCC 13 at para 14; R vVu, 2012 SCC 40, Moldaver J at para 58. No statutory or common law duty supporting aiding by omission was supported by theevidence in this case. [43] The mens rea of aiding has two elements, intent and knowledge. The Crown must prove that the accused intended to assist theprincipal in the commission of the offence: Briscoe at para 16.

The accused must know that the principal intended to commit the crime,“although he or she need not know precisely how it will be committed:” Vu at para 58; Briscoe at paras 16, 18; R v Roach, , 192 CCC (3d) 557 (ON CA), Borins JA at paras 34, 44 . [44] “Abetting” requires proof of active encouragement of another person to commit an offence, and includes encouraging,instigating, promoting, or procuring the crime to be committed: R v Greyeyes, , [1997] 2 SCR 825, Cory J at para 26; Briscoe at para 14.

In the words of Justice Moldaver in R v Cowan, 2021 SCC 45 at para 32, “[t]he actus reus of abetting isdoing something or omitting to do something that encourages the principal to commit the offence.” [45] The mens rea of abetting requires proof that the accused offered the encouragement with the intention of encouraging theprincipal to commit the offence and that the accused knew that the principal intended to commit the offence: Cowan at para 32; R vAlmarales, 2008 ONCA 692, Watt JA at para 67; R v Curran, 1977 ALTASCAD 284, 38 CCC (2d) 151 (SC AD) at para 23 ,leave to appeal to SCC refd (1978), 38 CCC (2d) 151n. 3.

The Offence was Committed in Carrying Out a Common Unlawful Purpose [46] Third, the Crown could establish criminal responsibility under s 21(2) of the Criminal Code. Section 21(2) provides asfollows: Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one ofthem, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission ofthe offence would be a probable consequence of carrying out the common purpose is a party to that offence.

If the Crown establishes the elements of s 21(2), an accused would be liable for the offence committed in carrying out the commonpurpose, even though another person committed that offence and even though the offence committed was not the unlawful purpose

agreed to by the accused.

In other words, when two or more persons join together in a criminal venture, each may be responsible forwhat another does in pursuing their original goal. [47] Proof of an accused’s criminal responsibility under s 21(2) has three elements: • the accused had an intention in common with others to carry out an unlawful purpose; • in carrying out that purpose, a party to the common purpose committed another offence; • either the accused knew that the commission of the other offence would be a probable consequence of carrying out the commonpurpose or the accused should have known that the commission of the other offence would have been a probable consequence ofcarrying out the common purpose.

See R v Harkes, 2017 ABCA 229 at para 28; R v Cadeddu, 2013 ONCA 729, Strathy JA at paras 50-54; R v Vuozzo, 2010 ABQB 439,Hughes J, as she then was, at paras 37-38; R v Hardy, 2017 ABQB 588, Feehan J, as he then was, at paras 90-94; R v Dubroy-Clement,2021 ABQB 418, Simpson J at paras 218-221. [48] Whether an accused formed an intention with one or more others to carry out an unlawful purpose must be assessed on theevidence of what the accused and the others did or did not say or did or did not do, before, during, and after the other offence occurred.An agreement may be articulated in words or manifested in conduct.

The agreement may arise on the spur of the moment, even at thetime the offence is committed, or it could have been made at some earlier time. [49] The other offence committed (in this case, manslaughter or arson) must have been committed by one of those who was partyto the unlawful purpose and in the course of carrying out that purpose.

The offence committed, in other words, must be one that themembers of the original agreement did not set out to commit, but took place in the course of carrying out the original agreement or plan. [50] The knowledge attracting criminal responsibility may be actual knowledge or what the accused should have known. TheCrown may establish that an accused actually knew that the commission of another offence would be a probable consequence of carryingout the unlawful purpose.

In some instances, to establish responsibility under s 21(2), the Crown must prove the accused’s actualknowledge and not merely what the accused should have known. Proof of actual knowledge would be required if, as in the case ofmurder, proof of the other offence constitutionally requires proof of actual knowledge: R v Logan, (SCC), [1990] 2 SCR731, Lamer CJC at 741. [51] Otherwise, the Crown could establish that an accused should have known that the commission of the other offence wouldhave been a probable consequence of carrying out the common purpose.

This is an objective test, based on what a reasonable personwould have known in the circumstances of the accused. [52] Probable (in “a probable consequence”) means likely, not just possible. II. Background A. Clifford “Curly” Stauffer [53] At the time of his death, Mr. Stauffer was 83. [54] He lived alone on an acreage located at 451001 Range Road 264 in Wetaskiwin County, about a mile north of highway 611.The property owner was Doug Pohl. Mr. Stauffer had been on the lands for some 15 years based on a handshake deal. The arrangement,as I understood it, was in effect a life tenancy. [55] Mr.

Stauffer had good relations with members of the nearby Samson Band. The accused Mr. Lightning and his father haddone some work for Mr. Stauffer on his land. Mr. Stauffer had a good relationship with the father of Janelle Whitebear, a Crownwitness. Zariah Ward, Ms. Whitebear’s niece and another Crown witness, said Mr. Stauffer was considered part of their family. [56] Mr. Lightning and Ms. Montour made some disparaging claims about Mr. Stauffer’s character. I find that those claims werewholly unsubstantiated. As I will discuss below, while the claims do not touch Mr.

Stauffer, they are relevant to the criminalresponsibility of the persons who made them. B. Mr. Stauffer’s Death [57] Mr. Stauffer’s body was badly damaged by fire. The conclusion of Dr. Cecilia Wu, Assistant Chief Medical Examiner, wasnot contested. The cause of death was blunt head trauma, impact to his head. The condition of his body did not permit a more preciseassessment. [58] The autopsy could not determine whether, for example, there was more than one impact to Mr.

Stauffer’s head, or the natureof the impact – whether the impact was caused by a blow from a third party or by contact with the floor (which would not rule out thecausal contribution of a third party). A single blow may kill. [59] The evidence did not support the inference that Mr. Stauffer injured himself or that his death was accidental. [60] In my opinion, in light of the evidence in this case, I find beyond a reasonable doubt that Mr. Stauffer was the victim ofculpable homicide, manslaughter. He was the victim of an unlawful act, an assault, that caused his death.

[ 61 ] The post-offence conduct, particularly the burning of Mr. Stauffer’s residence, is highly inconsistent with any suggestion that Mr. Stauffer’s death was the result of accident or natural causes. [ 62 ] I accept that the lack of evidence and the evidence of intoxication did not support a reasonable prospect of a finding of murder, leaving manslaughter as the appropriate classification of the homicide. My finding of manslaughter leaves open the issue of the identity of the perpetrator and whether any perpetrator can be identified on the evidence. [ 63 ] Mr. Stauffer died before his house burned. Mr.

Stauffer was not killed by the fire or smoke inhalation. C. Timing of Events [ 64 ] The testimonies of Ms. Crane and Ms. Montour and Mr. Lightning’s statement were not clear on when the material events occurred. [ 65 ] The fire on the acreage was first seen by Dale Zimmerman at about 7:00 a.m. on June 23, 2021. Mr. Zimmerman lives about a ½ mile North of Mr. Stauffer. He had been driving past the acreage on RR 264 southbound towards highway 611. He saw smoke. Mr. Zimmerman contacted his neighbour, Doug Pohl. He knew that Mr. Pohl was the landowner. Mr. Pohl attended and an emergency call was made.

Firefighters responded by about 8:00 a.m. [ 66 ] At about 7:05 a.m., Mr. Zimmerman saw a blue van leaving the acreage at a high rate of speed on RR 264 heading southbound towards highway 611. Mr. Zimmerman did not get a close look at the van but inferred that it was Mr. Stauffer’s van since he had the only blue van of that type within about 10-12 kilometres. I find that the van Mr. Zimmerman saw was Mr. Stauffer’s van. The group who had come onto Mr. Stauffer’s land were in the van. They were fleeing the scene of the crime. [ 67 ] When the fire crews reached the scene, the house was in flames.

That fire, I find, was started shortly before Mr. Zimmerman saw the smoke. The other activities on the land described in witness testimony likely took place over at most the preceding few morning hours. D. The Cause of the Fire [ 68 ] An expert opinion respecting the origin, cause, and circumstances of the investigated fire was provided by Kevin Bureau of FireStorm Consulting Group. He determined that there were three unconnected fires respecting the dwelling on the acreage, a shed southwest of the dwelling, and a vehicle to the west of the dwelling.

His conclusion was that each fire was intentionally ignited by an unknown person or persons. I accept his opinions. E. Some Events Before and After the Fire 1. The Powerline Road Residence [ 69 ] Janelle Whitebear has a residence on Powerline Road. [ 70 ] Late on June 22 and into the early morning of June 23, 2021, she had a bonfire on her property and people were visiting. Her niece Zariah Ward was staying with her. [ 71 ] Mr. Lightning arrived around midnight along with two young women, Ms. Crane and Ms. Montour, as identified by Ms. Ward. Mr. Lightning used to date another of Ms. Whitebear’s nieces.

It turned out that Ms. Ward had texted Mr. Lightning about whether he had any offsales. That led to his visit. Mr. Lightning and the young women stayed for about 10-20 minutes, then drove off. They were in a grey 4-door car (the Sebring). Ms. Ward said that Mr. Buffalo had been in the Sebring as well. He may not have been noticed by Ms. Whitebear. [ 72 ] The Sebring was a stolen vehicle in the possession of Mr. Lightning. 2. At the Acreage [ 73 ] The Sebring arrived at Mr. Stauffer’s acreage. Ms.

Montour recalled that they drove from the Maskwacis area across the four lane (QE II Highway) to “some field in the country.” The occupants did some drinking while they were there. The Sebring came to be parked fairly close to Mr. Stauffer’s residence on the acreage. [ 74 ] After the house fire was started and the group sought to flee, the Sebring wouldn’t start despite efforts to boost its battery. The Sebring was abandoned and burned and the group stole Mr. Stauffer’s van. 3. Return to Powerline Road [ 75 ] It appears that after leaving the acreage, the group travelled to where Linden Buffalo was staying.

This was at the residence of his father, Leroy Buffalo. [ 76 ] At some point on June 23, Mr. Lightning drove the van to Ponoka where he bought some liquor and stole a licence plate to put on the van. [ 77 ] At about 11 a.m., Mr. Lightning returned to Ms. Whitebear’s Powerline Road residence. According to Ms. Whitebear, he was by himself.

[ 78 ] Ms. Whitebear, who knew Mr. Stauffer, recognized Mr. Stauffer’s van. Ms. Ward recognized the van too. Ms. Whitebear told Mr. Lightning that she didn’t want a stolen vehicle on her property. She, Ms. Ward, and another niece then went to Wetaskiwin to shop. [ 79 ] When they returned about an hour later, Mr. Lightning was still there, but along with the two young women from the night before (Ms. Montour and Ms. Crane) and Mr. Buffalo. The members of the group went to sleep for a time then watched TV for awhile with Ms. Whitebear and Ms. Ward. [ 80 ] At around 2 p.m., Mr. Lightning and Ms.

Montour left in the van. [ 81 ] Mr. Buffalo and Ms. Crane were picked up later by Ms. Crane’s mother. 4. Arrest of Mr. Lightning and Ms. Montour [ 82 ] At around 8:00 p.m, Mr. Lightning and Ms. Montour were arrested by the Red Tag Liquor Store in Wetaskiwin. The initial charge was for possession of stolen property relating to the stolen licence plate on the van. [ 83 ] The police investigation progressed from that point. III. Questions [ 84 ] I must address five questions. [ 85 ] First, who were the members of the group that travelled to the acreage on June 23, 2021? [ 86 ] Second, who killed Mr.

Stauffer and who burned his house? [ 87 ] Third, did the members of the group share an unlawful purpose in travelling to the acreage and, if so, what was that purpose? [ 88 ] Fourth, what other offences were committed in carrying out the unlawful purpose? [ 89 ] Fifth, should members of the group have known what would likely happen to Mr. Stauffer and to Mr. Stauffer’s home in carrying out their purpose? IV.

Who were the members of the group that travelled to the acreage on June 23, 2021? [ 90 ] Four individuals admitted being members of the group that travelled to the acreage and were present during the material events. One accused, Mr. Green, denied that the Crown established beyond a reasonable doubt that he was present at the acreage during the material events. A. Admitted Presence [ 91 ] Ms. Crane and Ms. Montour admitted in testimony that they were part of the group that travelled to the acreage and that they were at least physically present at the time the group was at the acreage.

They came onto the acreage and left the acreage with the others who came onto the acreage. [ 92 ] Mr. Lightning admitted in his statement that he was present as part of the group on the acreage at the material times. Mr. Lightning and Ms. Montour were found in Mr. Stauffer’s van around 12 hours after the fire on June 23, 2021. [ 93 ] Mr. Buffalo admitted in his statement that he was present as part of the group on the acreage at the material times. [ 94 ] Ms. Whitebear and Ms. Ward confirmed that Ms. Crane, Ms. Montour, Mr. Lightning, and Mr. Buffalo had been together at Ms.

Whitebear’s residence before the events at the acreage occurred (at least Mr. Lightning, Ms. Crane, and Ms. Montour) and after the events occurred. B. Jake Green [ 95 ] Did the Crown establish, beyond a reasonable doubt, that Mr. Green was one of the members of the group that travelled to the acreage on June 23, 2021? 1. Statements [ 96 ] The statements made by Mr. Lightning and Mr. Buffalo were not evidence that Mr. Green was a member of the group that went to the acreage. [ 97 ] Mr. Green was interviewed by police. Both the inculpatory and exculpatory elements of his statements were admissible.

He denied participation in the events involving Mr. Stauffer. See, e.g., 8.354.21 (“I didn’t do it”); 8.374.21-375.1, 375.4-6 (I’m not going to admit to something I didn’t do); 8.121.19-20 (“I can’t tell you anything if I don’t know nothing, right?”); 8.315.4-5 (Ms. Montour is

lying); see also 8.153.6, 234.9-238.12, 251.1-12. [ 98 ] The Crown sought to rely on an alleged non-verbal admission by Mr. Green that emerged in the following context (8.364.18- 366.1): Sgt. McKenzie: The only questions I’m asking you ... is if it’s true that this wasn’t planned. Is that true? Mr. Green: [no audible response] Sgt. McKenzie: ‘kay, hey, thanks. I appreciate that nod, right? Like, you didn’t go there wanting to kill Clifford, did you? Mr. Green: Well, it sounds like – you know ... they weren’t ... they all say it wasn’t planned, so ....

They all say on the video – well, on those ... recordings that they didn’t plan it, so ... Hearing them say it? Yeah. [ 99 ] I do not consider Mr. Green to have made any admission by conduct in his statement. A nod was seized on by the interviewing officer as, in effect, an admission of presence and lack of intention to kill. However, Mr. Green clarified that he was only commenting on the information provided to him by police about what others admitted to police. [ 100 ] I should observe that Mr. Green was very careful to abide by the advice of counsel to remain silent throughout a lengthy interview. 2.

Alibi [ 101 ] Mr. Green told a police interviewer that from Monday, June 21 through to and including Wednesday, June 23 he had been at the residence of Denita Okeymow. See 8.161.17-173.14, 189.8-191.16. [ 102 ] He and Ms. Okeymow had been in an intimate relationship for 7 years but have separated. Mr. Green’s daughter lives with Ms. Okeymow. He spends a substantial amount of time at Ms. Okeymow’s with his daughter, who’s 6 years old. He stays with her three to four times per month, every week or two. [ 103 ] Ms. Okeymow testified that Mr.

Green was at her house on June 25 and 26 and in the morning of the 24 th . [ 104 ] In her testimony in chief, she said didn’t recall Mr. Green being at her house on June 23 or June 22. Her parents, her two older boys, and her daughter were there. [ 105 ] In cross-examination, she said that he had been staying with her for three days before he was arrested. He was arrested on June 26. That would put him with her on the 23 rd . [ 106 ] She said that when he was arrested, he was wearing the same clothing he’d been wearing when he showed up. [ 107 ] Ms. Okeymow provided some evidential support for Mr.

Green’s alibi although that support was not conclusive. 3. Observation Testimony (

a) Janelle Whitebear and Zariah Ward [ 108 ] Neither Ms. Whitebear nor Ms. Ward stated that Mr. Green, or any third male, was with the group that came to the Whitebear residence, either the first or second time. The only two males identified were Mr. Lightning and Mr. Buffalo (Ms. Whitebear didn’t know Mr. Buffalo, but I infer that he was the “one playing guitar on the couch” on the June 23 visit). Ms. Ward knew all these individuals. (

b) Ms. Crane [ 109 ] Ms. Crane testified that Mr. Green was not a member of the group that went to the acreage. Her memory was that only herself, Ms. Montour, Mr. Buffalo, and Mr. Lightning travelled to the acreage. She had met Mr. Green only recently at Mr. Lightning’s mother’s house, where Mr. Lightning was tattooing, on or about June 22. (

c) Ms. Montour [ 110 ] Ms. Montour, in contrast to Ms. Crane, testified that Mr. Green was a member of the group that travelled to the acreage. On this point, she was insistent. She saw him at the acreage “with my own eyes.” [ 111 ] There were difficulties with this part of Ms. Montour’s testimony in addition to the Vetrovec concerns already identified. [ 112 ] Ms. Montour testified that she had only met Mr. Green shortly before the events at the acreage, the day before. He was at the house where Mr. Lightning was doing tattoos (his mother’s house). The parties were drinking at this location. [ 113 ] Ms.

Montour offered a spare description of the person she had met and knew as Mr. Green. He had glasses, a hat, and was skinny. [ 114 ] She did not identify Mr. Green in court and there was no evidence that she had identified him in some other manner earlier with the police, as in a photo array.

[ 115 ] Cross-examination revealed that in her statement to the police, Ms. Montour described the events at the acreage at length. The transcript ran to page 108 before she mentioned that Mr. Green was there too. She testified that at that point, “I remembered him being there.” [ 116 ] Ms. Montour’s testimony is some evidence that Mr. Green was present, but her testimony had no significant weight and, by itself, supported only a bare possibility of Mr. Green’s presence at the acreage not a reasonable possibility or a likelihood, let alone proof beyond a reasonable doubt, of his presence. 4.

DNA Evidence [ 117 ] Mr. Green, though, was potentially linked to the acreage and the events of June 23, 2021 by DNA evidence found on two objects at two locations, the first, a beer can found on the acreage, the second, sweatpants recovered from a burn barrel in Leroy Buffalo’s yard. [ 118 ] The Crown’s DNA expert was Dr. Melanie Green (Biology Services, RCMP National Forensic Laboratory Services – Edmonton). No Defence DNA expert was called. [ 119 ] The author of the exhibited DNA report was not Dr. Green but Janice Lyons (Biology Services, RCMP National Forensic Laboratory Services - Edmonton). Ms.

Lyons was not called as a witness. She was not available to testify. The Crown called Dr. Green in place of the report writer. I permitted Dr. Green to testify and admitted the report on the basis that the DNA profile conclusions and statistical assessments were Dr. Green’s original opinions, opinions she drew herself. She formed those opinions based on her review of the working file that supported the author’s opinions. Dr. Green was providing opinions based on the same information available to Ms. Lyons. Dr. Green did not merely repeat the author’s opinions. In addition, Dr.

Green had also been the technical reviewer of the author’s report and in that capacity had double-checked the author’s conclusions. Dr. Green’s opinions matched Ms. Lyons’ opinions. [ 120 ] Mr. Green’s counsel launched a series of attacks on Dr. Green’s evidence. I considered a number of these attacks unavailing. I’ll address the unavailing arguments after what I consider to be the critical issues relating to the DNA evidence. (

a) Beer Can (

i) DNA and Potential Transfer of DNA [ 121 ] Cpl. Robert Bauer (RCMP Forensic Identification Services) recovered a beer can from the acreage and took a swab from around the mouth of the can. Subsequent analysis of the swab yielded a DNA profile that matched Mr. Green’s DNA profile. Conclusion 3 of the Forensic Science and Identification Services Laboratory Report dated December 29, 2021 (Report Two) concerns exhibit PE115 (swab of beer can) [scene 01 [the acreage]] and is as follows: The partial DNA typing profile obtained matches that of the known sample, exhibit PE116 [JG].

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 10 billion. The known sample was Mr. Green’s DNA typing profile. [ 122 ] Dr. Green clarified that the match was partial. The match was not at all 15 regions on the DNA molecule as required for a full match, but at least at 5 regions. [ 123 ] It was not disputed that Mr. Green’s DNA was on the beer can. I find that Mr. Green’s DNA was deposited on the beer can, beyond a reasonable doubt. [ 124 ] I also find beyond a reasonable doubt that Mr.

Green deposited the DNA on the beer can. The evidence did not support any inference that his DNA was transferred to the beer can by a third party or by contact with some object bearing his DNA. [ 125 ] It might be possible if parties were sharing bottles of vodka, drinking from the same bottles as were the members of the group before arriving at the acreage and at the acreage, that some biological material belonging to Mr. Green (as from his lips) was transferred to a third party who in turn deposited that biological material on the beer can. However, Cpl.

Bauer did not take a pinpoint swab of the mouth of the can but moved the swab around the mouth of the can. If a third party drank from the can and deposited Mr. Green’s biological material on the can it would be likely that the third party would have deposited some of his or her biological material on the can as well. Third party DNA was not detected on the can. (ii) Limitations of DNA Evidence [ 126 ] The assessment of the significance of the beer can evidence must proceed with a recognition of the limitations of DNA evidence.

If, as in this case, DNA is found on an object and if, as in this case, the profile of the DNA found on the object matches the profile of a known subject, then it can be concluded that the known subject’s DNA is found on the object. That conclusion, though, does not reveal how the subject’s DNA was deposited on the object or when it was deposited on the object. The DNA itself does not reveal how and when it got there.

Further, if the object on which the DNA was deposited is mobile, the DNA itself does not reveal where the deposit or transfer of DNA occurred. [ 127 ] As for “how” DNA was deposited, DNA may be transferred directly by a person to an object, by a person to a third party who transfers the person’s DNA to the object, by a person to an another object that the object in question touches, or by a person who transfers DNA to an object that a third party touches with the third party then touching the object in question transferring the subject’s DNA. On this point, it is useful to recall – as Dr.

Green testified – that the minimum amount of DNA needed to generate a profile is 0.15 nanograms. A nanogram is a billionth of a gram.

[128] As for “when,” the important point is that DNA may remain identifiable and analyzable on objects for a long time.

Hence theuse of DNA analysis in cold cases. [129] As for “where,” the simple point is that DNA may have been deposited on an object when it was at one location and the objectmay be recovered at another. [130] It is incorrect, then, to consider DNA evidence “highly inculpatory.” A match is highly probative on the link between DNA onan object and the DNA of the known subject, but the probative value extends no farther than that. [131] Since DNA itself cannot reveal the how, when, and where of deposit or transfer, the Crown has the burden of showing throughother evidence that the circumstances and timing of deposit or transfer make the identified DNA relevant. [132] Care must be taken not to reverse the burden of proof.

It is not up to an accused to provide an innocent explanation for DNAappearing where it did. [133] A foundational authority on the appropriate reasoning in this area is Justice Doherty’s decision in R v Mars, ,205 CCC (3d) 376 (ON CA), a case concerning fingerprints. The complainant heard a knock at his door. Through the peephole he saw aman holding a pizza box. The complainant had not ordered pizza and opened the door to explain this to the man. Three men rushed inand the complainant was robbed.

Witnesses provided no reliable inculpatory observation evidence respecting the man with the pizza boxand there was some exculpatory observation evidence. The accused’s fingerprint was located on the pizza box. Justice Doherty wrote asfollows at paras 19-24: [19] The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost alwaysafford cogent evidence that the person whose fingerprint is left on the object touched that object.

However, the ability of the fingerprintevidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that theaccused touched the object at the relevant time and place so as to connect the accused to the crime. [20] In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time.

However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonablypermitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box.

The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection withthe robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself. [21] The evidence does not reasonably permit the conclusion that the appellant placed his fingerprint on the pizza box at the time ofthe robbery. Quite simply, there is no evidence that assists as to when the fingerprint was placed on the pizza box.

Put somewhatdifferently, the Crown cannot point to any evidence that makes the inference that the appellant touched the pizza box in connection withthe robbery a more likely inference than the inference that he touched the pizza box at some other time. [22] Crown counsel submits that the trial judge was entitled to draw the inference that the fingerprint was placed on the pizza box inconnection with the robbery because there was no other reasonable explanation proffered by the defence .... [23] .... I cannot, however, subscribe to that analysis. The Crown bore the burden of proof throughout the trial.

If the Crown’sevidence was capable of supporting the conclusion that the print was put on the box in connection with the robbery, the absence of anyinnocent explanation could well have made it easier for the trial judge to draw the inference of guilt. If, however, as I would hold, theCrown’s case could not reasonably support the conclusion that the print was placed on the pizza box in connection with the robbery, thefailure of the appellant to offer any other explanation by way of testimony or through some other evidence is of no consequence.

Anappellant’s failure to testify or otherwise advance an “innocent” explanation cannot add weight to the Crown’s case so as to justifydrawing what would otherwise be an unreasonable inference of guilt: R. v. LePage (1995), (SCC), 95 C.C.C. (3d) 385at 396-97 (S.C.C.). [24] The trial judge’s finding that the fingerprint evidence could bear the full weight of the Crown’s burden flowed at least in partfrom his erroneous premise that fingerprint evidence was “highly inculpatory evidence”.

The trial judge should have started from thepremise that the probative value of the fingerprint evidence depended upon whether there was other evidence capable of permitting areasonable inference as to when the fingerprint was placed on the pizza box. [emphasis added] [134] This reasoning has been applied respecting DNA evidence.

See, for example, R v Metzger, 2023 SCC 5, Rowe J at para 3 (no reliable observation evidence; accused’s DNA on cigarette butt found in complainant’svehicle, which was stolen and recovered 11 hours after the offence): [3] The trial judge acknowledged that the DNA evidence, standing alone, would not be sufficient to establish guilt beyond areasonable doubt. I agree with that conclusion. The DNA evidence at best permitted an inference that the appellant was in the vehicle atsome point in time prior to its recovery by the police.

There was no evidence indicating when and why the appellant may have been inthe vehicle, which was unaccounted for during the 11 hours between the robbery and its recovery. Mr. Iten also routinely left the keys inthe vehicle prior to the robbery. As the dissenting judge of the Court of Appeal noted, there were also pieces of clothing and other itemsin the vehicle that the forensic identification officer acknowledged were not sent for DNA analysis.

In these circumstances, the DNAevidence alone could not have established a case to meet against the appellant with respect to participation in the robbery. [emphasisadded] R v Janeiro, 2022 ONCA 118, Paciocco JA at paras 84, 87-89 (robbery – DNA evidence adduced respecting identity): [84] The Mars case illustrates the challenges the fingerprint evidence poses. The fingerprint on the plastic bag used by the robberproved that Mr. Janeiro touched the bag, but it is incapable, on its own, of proving that he touched the bag in connection with the

robbery. This is not a case where there is circumstantial evidence showing that this forensic evidence was deposited during the event, such as in R. v. Samuels , 2009 ONCA 719 , where a fingerprint on a motor vehicle was in the same location the perpetrator was seen to touch it, and bore indications of direction and movement consistent with the manner in which the perpetrator was seen to touch the vehicle.

To the contrary, there is evidence creating doubt about whether the print was deposited on the bag during the robbery .... [87] The Crown seeks to overcome the Mars problem – the absence of evidence that the fingerprint is linked to the robbery – by arguing that there is an additional piece of evidence linking Mr. Janeiro to the offence – namely, the DNA evidence obtained from the saliva. [88] I do not dispute that additional evidence can overcome the Mars problem. In Youssef , for example, Mr. Youssef’s DNA found on a knife left behind by the perpetrator could not alone link Mr.

Youssef to the crime, but that deficit was overcome when additional DNA from Mr. Youssef was found on a t-shirt in the getaway car . Similarly, in R. v. Wills , 2014 ONCA 178 , 308 C.C.C. (3d) 109, aff’d 2014 SCC 73 , [2014] 3 S.C.R. 612, Mr.

Wills’ DNA was found on a bandana left at the scene, another bandana on the ground on the flight path the perpetrators took , and he was later found in possession of a weapon similar in appearance to the description of the weapon used in the crime – a police baton. [89] The problem with the Crown’s attempt to use the DNA saliva evidence to accomplish a similar outcome in this case is that, unlike in Youssef and Wills , there is no evidence linking the additional evidence – the saliva on the sidewalk – to the robbery .

This is not a case where the DNA was extracted from the crime scene or a known flight path, nor was it on an object or vehicle linked to the crime scene . The saliva was found approximately two hours after the robbery approximately 60 metres away from the donut shop on a public sidewalk where Mr. Janeiro could reasonably be expected to have been. Nobody observed the robber in that location either before or after the robbery. Put simply, the DNA put Mr.

Janeiro on a public sidewalk in front of a business within metres of his home and his place of employment at some point in time on the evening or night of the robbery. It did not put him at the robbery or otherwise connect him to the robbery. [emphasis added] R v Grayston , 2016 ONCA 784 at paras 14-16 (theft of vehicle – identification relying on DNA found on balaclava recovered from vehicle): [14] We start with the evidence that the appellant’s DNA was found on the balaclava.

While DNA evidence is powerful evidence that the person whose DNA is on the object was in contact with that object , the connection of the accused with the crime will depend on the existence of other evidence capable of establishing that the accused was in contact with the object at the relevant time and place : R. v. Mars ... at para. 19 . [15] In R. v. D.D.T ., 2009 ONCA 918 , [2009] O.J.

No. 5486, at para. 15 , this court suggested a two-stage approach for appellate review of the reasonableness of a verdict in cases where evidence of this nature provides the sole evidence capable of identifying the perpetrator: The first stage involves an examination of the reasonableness of the inference that the [DNA was] placed on the object with connection to the crime, at the relevant time and place .

The second stage involves an examination of the soundness of the conclusion that the totality of the evidence and reasonable inferences available to the trial judge were sufficient to prove the appellant’s guilt beyond a reasonable doubt. [16] In this case, the Crown must have demonstrated first that, based on the evidence, the inference that the appellant was wearing or had the balaclava with him in connection with the theft of the Sunbird is a more likely inference than the inference that he was in contact with the balaclava on an unrelated occasion .

Second, the appellant’s guilt must have been the only rational conclusion available on the totality of the evidence. [emphasis added] (iii) No Time Production Stamp [ 135 ] There was no evidence relating to a “time production stamp” on the beer can that might have contributed to an inference that the can was left on the acreage at some time prior to June 23, 2021. (iv) No Prior Visit [ 136 ] There was no evidence that Mr. Green had visited the acreage at any time prior to June 23, 2021. (vi) Can Location [ 137 ] The evidence did not support any inference that the can bearing Mr.

Green’s DNA was deposited on the acreage at some time other than June 23, 2021 (except as discussed below). The can was not found, for example, in a ditch beside highway 611 or RR 264. Its location did not suggest that it was tossed from a passing car at some unknown time. The evidence did not support a claim that the acreage was a bush party location for individuals from the Maskwicis area. In my opinion, the acreage would be an unlikely place for parties. The acreage was not a long distance from Maskwacis, although, as Ms.

Montour testified, it was necessary to drive down highway 611 over the “four lane,” the QEII Highway, to get to it. The entrances to the acreage were obscure, particularly the North entrance. The evidence did not disclose, for example, a profusion of litter from bush parties. [ 138 ] Instead, the location of the can on the acreage supported the inference that the can was deposited by the group who came onto the acreage on June 23, 2021. [ 139 ] Cpl. Bauer located the beer can on a path on the acreage between the area of the house and the area of the North entrance to the acreage.

The beer can was not found at the field, near the watering area, at the easternmost portion of the North way into the acreage. Rather – and Cpl. Bauer was questioned extensively on this point and supported his testimony with photographic evidence – the beer can was found on the leg of the North entrance that allows access southerly towards the house on the acreage.

[140] I find that the Crown has established that there is evidence connecting the beer can bearing Mr. Green’s DNA with the offence.The location of the beer can is itself some circumstantial evidence of connection to the offence. The beer can was found on the likelypath of Mr. Stauffer’s assailants near the home where Mr. Stauffer was attacked. The nature of the location makes it unlikely that thebeer can would have been deposited by anyone other than Mr. Stauffer’s assailants.

The location of the beer can evidence is unlike, e.g.,the saliva yielding DNA located on a public sidewalk over two hours after a robbery approximately 60 metres from the placed robbed:Janeiro at para 94. Further to the “when” (and the location of the beer can is relevant to this point as well), there is no evidence that Mr.Green had ever come anywhere near the location of the beer can at any earlier time. (vii) Second Stage Assessment – Part One [141] Independent circumstantial evidence witnesses Ms. Whitebear and Ms. Ward do not put Mr.

Green with the group at thePowerline Road residence before or after the events at the acreage. Ms. Crane denied that Mr. Green was with the group at the acreage.Ms. Okeymow provided at least modest confirmation that Mr. Green was at her house during the material times. This evidence is setagainst Ms. Montour’s insistence that Mr. Green was with the group at the acreage. Were the observation evidence the only evidencebearing on the identification of Mr. Green as a group member, a reasonable doubt about whether Mr.

Green was at the acreage wouldhave been inescapable. [142] I do not view the beer can evidence as corroborating Ms. Montour’s testimony. The beer can evidence could only support hertestimony if I were to find that this evidence shows that Mr. Green left the can with his DNA on it on the acreage. But whether theevidence supports that inference is what I must determine. In other words, using the beer can evidence to corroborate Ms. Montour’stestimony would be to engage in circular reasoning or question-begging. [143] But even without Ms.

Montour’s testimony, the evidence relating to the DNA on the can appears compelling. The DNA on thecan is Mr. Green’s. The evidence did not support an inference that Mr. Green’s DNA was transferred to the can by (e.g.) another person.There is no evidence that the can was deposited by Mr. Green on the acreage at some time before June 23, 2021. The can is locatedwhere the group that came onto the acreage passed on their way to the house. From these facts it might be inferred that Mr. Green drankfrom the beer can while he was with the others who came onto the acreage. Mr.

Green was a member of this group. [144] The Crown’s argument was that the only way the can bearing Mr. Green’s DNA could have made its way to where it was foundwas by Mr. Green putting it there. The circumstances surrounding the can rebut or preclude any other rational explanation for thepresence of the can on the acreage. [145] Evidence emerging in the Crown’s case, however, added complexities. [146] There was evidence from Ms. Crane that Mr. Green had been drinking with the group members earlier, at Mr. Lightning’smother’s house. Ms. Montour referred to members of the group having been drinking at Mr.

Lightning’s mother’s house, although shesaid that they met Mr. Green later. Further, Ms. Montour testified that he had been in the Sebring. I do not reject this evidence of Ms.Montour’s. If, as Ms. Crane testified, Mr. Green was with group members at one residence, and since (as is justified by the evidence) thegroup members went from house to house drinking and also they likely travelled by car, it was likely that Mr. Green had been in theSebring. Further, this evidence did not directly connect with Ms.

Montour’s self-exoneration narrative, so it has a higher probability ofbeing accurate than her other testimony. (Granted, presence in that car at an earlier time could also be evidence supporting presence inthat car at a later time, although that inference would run headlong into Ms. Crane’s testimony.) [147] Since, on the evidence, Mr. Green had been drinking with the group members earlier and since there is evidence, I have notrejected that he had been in the Sebring earlier, the possibility arises that the can was left in the car.

If the can was left in the car, areasonably available hypothesis was that the can was tossed out by the group members when they were on the acreage. There is evidencesupporting a reasonable explanation for how the can with Mr. Green’s DNA on it made its away to the acreage, other than by Mr. Greenputting it there. [148] And there was further evidence going to the when of deposit of the can on the acreage. [149] Leroy Buffalo’s testimony shows that Linden Buffalo knew both Mr. Lightning and Mr. Green. Leroy Buffalo testified tohaving seen Mr. Green and Mr.

Lightning in his yard with Linden Buffalo prior to June 23, 2021. Further, Mr. Lightning had gone ontothe acreage to steal goods at on a date prior to June 23, 2021. The evidence of Mr. Lightning and Ms. Crane and Ms. Montour as it relatesto Mr. Lightning supports the conclusion that he habitually drank with acquaintances.

From evidence of habit, conduct consistent withthat habit can be inferred: R v Watson (1996), (ON CA), 108 CCC (3d) 310 (ON CA), Doherty JA at para 36(CarswellOnt) (“Where a person’s conduct in given circumstances is in issue, evidence that the person repeatedly acted in a certain waywhen those circumstances arose in the past has been received as circumstantial evidence that the person acted in conformity with pastpractice on the occasion in question”). This supports the conclusion that Mr. Lightning was drinking before and at the time of the firstincursion onto the acreage.

A further reasonable possibility was that Mr. Lightning had been drinking with Mr. Green in the periodleading up to the date of the earlier theft from the acreage by Mr. Lightning. Prior drinking together could have led to one of Mr.Green’s used beer cans having been in Mr. Lightning’s vehicle. The beer can, then, was tossed out by Mr. Lightning or his girlfriend inMr. Lightning’s prior theft from the acreage. However, I consider there to be an evidential gap between drinking together and presence ofempties in Mr. Lightning’s car.

I shall not consider this alternative hypothesis as I consider it speculative. [150] If the relevant evidence of Mr. Green’s presence were only the observation evidence and the beer can evidence, the reasonablepossibility that the beer can was deposited on the acreage by someone other than Mr. Green could not be eliminated. [151] There was, however, additional evidence relevant to Mr. Green’s presence during the attack at the acreage. (

b) DNA on Sweatpants

[152] The DNA of Mr. Green and Mr. Stauffer as well as Mr. Stauffer’s blood was found on a pair of sweatpants seized from a burnbarrel at Leroy Buffalo’s residence. Considered by itself, this evidence, like the beer can evidence, is evidence of a link between Mr.Stauffer and Mr. Green. The identification of Mr. Stauffer’s blood was challenged by the Defence. I rejected the challenges, for thereasons under the heading “unavailing arguments” below. [153] In addition, the fact that Mr. Green’s DNA was found on more than one piece of evidence connected to Mr. Stauffer makes itmore likely that Mr.

Green was in fact present on the acreage with Mr. Stauffer. [154] In R v Sikora, 2023 ABKB 226, at paras 84-85, Justice deWit, as he then was, referred to the probative value of an accused’sDNA being found on separate objects connected with an offence on the issue of identification: [84] In R v McPhail, 2019 ABCA 427, there was a home invasion robbery and the Crown sought to prove identity based oncircumstantial evidence of DNA on three items. There were also trace amounts of DNA found on these objects as well as the DNA of theaccused.

The Court of Appeal stated at para. 2: The trial judge found that there was no reasonable explanation as to how the appellant’s DNA was on all three samples, other than thathe was at the scene and was one of the participants in the home invasion. Any other inference he described as unlikely, or merespeculation. The appellant did not testify, meaning that the Crown’s circumstantial case was uncontradicted: R. v.

Noble, (SCC), [1997] 1 S.C.R. 874 (S.C.C.) at para. 104. [85] The Court of Appeal found that there was a difference between DNA found on one item and DNA found on three items, andstated at para 7: The appellant argues that the trial judge could not have properly drawn an inference of guilt beyond a reasonable doubt from thisevidence, and that the verdict is unreasonable. If the Crown only had one piece of DNA evidence, this would have been a much moredifficult prosecution. The three pieces of DNA evidence, given how they related to the crime and to each other, were sufficient to supportthe verdict: R v.

Hall, 2018 MBCA 122 (Man. C.A.) at paras. 195-9, (2018), [2019] 1 W.W.R. 612 (Man. C.A.). The Crown’scircumstantial case being uncontradicted, the verdict cannot be said to be unreasonable. [emphasis added] The probative value derives from the improbability of coincidence, the unlikelihood that an accused’s DNA would be found on morethan one object connected with the offence unless the accused were actually involved in the offence: R v Arp, (SCC),[1998] 3 SCR 339 at para 64 (“It is the unlikelihood of coincidence that gives the evidence its probative force”); R v Handy, 2002 SCC56, Binnie J at para 42.

The DNA evidence, though, must be considered in its factual context. (

i) The Yard and Visitors [155] The RCMP executed a search warrant at the home of Leroy Buffalo. Linden Buffalo stayed in a trailer in Leroy Buffalo’s yardand sometimes in a basement room in Leroy Buffalo’s house. [156] Linden would meet with his friends in the backyard. [157] Access to the yard was either through the house or through a gate by the side of the house that was kept unlocked. [158] Leroy Buffalo testified that Mr. Lightning was a friend of Linden Buffalo. He had seen Linden talking with Mr. Lightning onJune 22. [159] In cross-examination, Leroy Buffalo said that Mr.

Green is an acquaintance of Linden’s. He thought he had met Mr. Green butdidn’t recognize him in court. I find that Leroy Buffalo had seen Mr. Green with Linden in Leroy Buffalo’s yard. (ii) Linden Returns before Arrest [160] Leroy Buffalo has security cameras “all over” his house, but not, it appears, covering the back yard. The camera recorded a bluevan parking in front of the residence on June 23, 2021 but the time was not in evidence. [161] Also in cross-examination, Leroy Buffalo said that on June 23, Linden had returned to the Buffalo home at about 10 a.m. Hestayed for only a brief period, 5-15 minutes.

He went downstairs where he had some clothes. He changed his clothes and left. He came inthrough the front door and left through the front door. He was the only one who came into the yard at that time. In subsequent cross-examination, though, Leroy placed this visit on the day the police executed the search warrant at his residence, June 26. I understand thatCst. Eric Whalen had initially secured the scene (including the burn barrel and contents) on June 24.

While Leroy was not questioned about this date, it is possible that he regarded the 24th as the “execution of warrant” date. (iii) The Burn Barrel and its Contents [162] A burn barrel was located in Leroy Buffalo’s yard. Leroy Buffalo used the barrel to burn his garbage. The last time he hadburned garbage was a week to 5 days before June 23, 2021. [163] On June 26, Cst. Julian Celms and Cst. Michael Arnason looked inside the barrel and saw some clothing. It had not been burnt.The clothing was a Super Mario T-shirt (short sleeved) and sweatpants. Again, Cst.

Whalen had secured the scene on June 24. [164] The clothing was seized and swabbed. [165] The T-shirt yielded no DNA evidence. The sweatpants did.

(iv) Analysis of the Sweatpants [ 166 ] The Forensic Science and Identification Services Laboratory Report dated September 29, 2021 (Report One) stated “blood identified” at two areas on the sweatpants (AA, back lower leg; AB, lower leg left side seam). (See “unavailing arguments” below, (i)- (iv).) Conclusions 8 and 9 are as follows: 8. The DNA typing profile obtained from area AA (back lower left leg) is of mixed origin consistent with having originated from two individuals. a. The profile of the major component matches that of the known sample, exhibit PE076 [DECEASED].

The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 160 quintillion. b. The profile of the trace component contains limited genetic information, and no meaningful comparison can be made to any samples. 9. The DNA typing profile obtained from area AB (lower leg left side seam) matches that of the known sample, exhibit PE076 [DECEASED]. The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 160 quintillion. [ 167 ] Dr.

Green testified that “blood identified” denoted a confirmation that blood was present. Dr. Green stated in cross-examination that while it could not be said to 100% certainty that the DNA profile derived from areas AA or AB arose from blood or other biological material, in the circumstances, given the source of blood on the pants and that more than 100 nanograms of blood were identified, in her opinion, the profiles were derived from blood. I have rejected the Defence contention that the blood could be non-human. I also rejected the Defence contention that Mr.

Green’s DNA profile was not derived from blood at areas AA and AB. [ 168 ] At two locations, the sweatpants also disclosed biological material that yielded a DNA profile that matched Mr. Green’s profile. Conclusions 10 and 11 of Report One stated the following: 10. The DNA typing profile obtained from area AC (inside left front left waistband) is of mixed origin consistent with having originated from two individuals. a. The profile of the major component is that of an unknown individual. This profile has been previously designated as Male 1 .... b.

The profile of the trace component contains limited genetic information and no meaningful comparison can be made to any samples. 11. The DNA typing profile obtained from area AD (inside back right waistband) is of mixed origin consistent with having originated from two individuals. a. The profile of the major component matches the profile designated as Male 1. b. The profile of the trace component contains limited genetic information and no meaningful comparison can be made to any samples. [ 169 ] Conclusions 1 and 2 of Report Two state the following: 1.

The DNA typing profile obtained from area AC (inside front left waistband) is of mixed origin consistent with having originated from two individuals. a. The profile of the major component, previously designated as Male 1, matches that of a known sample, exhibit PE116 [JG]. The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 280 sextillion. b. The profile of the trace component contains limited genetic information and no meaningful comparison can be made to any samples. 2.

The DNA typing profile obtained from area AD (inside back right waistband) is of mixed origin consistent with having originated from two individuals. a. The profile of the major component matches that of the known sample, exhibit PE116 [JG]. The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 280 sextillion. b. The profile of the trace component contains limited genetic information and no meaningful comparison can be made to any samples. [ 170 ] The known sample exhibit PE116 displayed the DNA profile of Mr.

Green. [ 171 ] The Defence did not contend that the sweatpants did not bear the DNA of Mr. Green and Mr. Stauffer. The sweatpants DNA evidence would appear to be strong evidence of a link between Mr. Green and Mr. Stauffer. (

v) DNA not on the Sweat Pants – the Trace Component [ 172 ] As indicated, I will address “unavailing” Defence arguments below, but one unsuccessful Defence argument should be considered at this point, respecting the trace component of the mixed profiles. [ 173 ] Area AA of the sweatpants was stated to be of mixed origin, showing not only Mr. Stauffer’s DNA but a trace component. [ 174 ] Areas AC and AD (from the inside waistband of the sweatpants) also each showed a trace component. [ 175 ] Defence counsel contended that a trace component “is a strong indication that more than one individual had contact the

sweatpants at these sites.” [176] The trace components do not support an inference that more than one individual had contact with the sweatpants. [177] In each case, the report conclusion respecting the trace component was “[t]he profile of the trace component contains limitedgenetic information and no meaningful comparison can be made to any samples.” [178] Dr. Green’s testimony confirmed the conclusion drawn in the report respecting the traces: “no meaningful comparison can bemade to any samples.” No comparison was done, no comparison could be done.

She stated that there is no way of knowing from whomthe traces derived. [179] The trace material, having been actually compared to no other profiles, is equally consistent with sourcing from Mr. Stauffer,Mr. Green, or a third party. (Indeed, on the Defence approach, there is no way of knowing whether the traces derived from a non-humanmammalian source.) The trace material has no probative value. Its presence is equally explained by numerous source hypotheses andthere is no basis for preferring one hypothesis to another.

See R v Arcangioli, (SCC), 1994] 1 SCR 129, Major J at 145.The suggestion that the trace material is evidence of contact with one or more third parties is speculation. [180] I have reached the same conclusion respecting trace material in this case as did Justice deWit at para 87 of Sikora: [87] In the circumstances of this case, the trace amounts of DNA which could not be used and which did not provide enough geneticinformation such that their origin could not be identified or determined, do not lessen the probative value of the major contributor andminor contributor who could be identified in this case which was Mr.

Lewis and Mr. Sikora. Suggestions by the defence that these traceamounts suggest another person’s involvement were not confirmed by the expert witness Mr. Schimpf and in the circumstances of thiscase are simply conjecture and do not suggest that Mr. Sikora was not present at the residence. [181] However, there are other complications bearing on the evidential value of the sweatpants DNA evidence relating again to the“how,” “when,” and “where” of the DNA evidence. (vi) Complications with the Evidence The “When” of Mr. Stauffer’s DNA Deposit Not at Issue [182] There were two sets of DNA deposits, Mr.

Stauffer’s and Mr. Green’s. I concluded, in dealing with the “unavailing” Defencearguments that the sweatpants bore Mr. Stauffer’s blood and DNA. It is possible that Mr. Stauffer’s blood on the sweatpants was fromsome earlier unrelated injury, but only possible. The evidence did not transform that possibility into a reasonable possibility. My focus,then, will be on Mr. Green’s DNA deposit. [183] This focus takes out of practical consideration the relatively broad period of access to the burn barrel from about a week beforeJune 23 until June 24 when the scene was secured.

The burn barrel, though, was accessible on June 23 until the scene was secured. Who put the Sweatpants in the Burn Barrel? [184] The evidence did not show who put the sweatpants in the burn barrel. There was opportunity for a person other than Mr. Green,particularly a person whose presence at the acreage was admitted, to have put the sweatpants in the burn barrel. [185] Access to Leroy Buffalo’s backyard was not only through his house but through an unlocked back gate.

There was no evidenceof security camera footage showing that entry into the backyard between June 23 and the scene being secured could not have occurred. [186] The group left the acreage around 7 a.m. Mr. Lightning did not arrive at Ms. Whitebear’s Powerline Road residence until around11 a.m. and the other group members did not arrive there until about noon. [187] Ms. Montour testified that the group went straight to the Powerline Road residence after leaving the acreage. In cross-examination she confirmed that she had told the police that they had stopped first at Mr.

Buffalo’s residence and, while she had nocurrent memory of this, “we must have went there:” T84.1. [188] The evidence supports the conclusion that the others were dropped off at Mr. Buffalo’s residence by Mr. Lightning then pickedup by M

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