R v Desjarlais, 2023 ABKB 548

Court of King’s Bench of Alberta Citation: R v Desjarlais, 2023 ABKB 548 Date: 20230929 Docket: 210788121Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Clayton Desjarlais Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice L.R.A. Ackerl _______________________________________________________ Table of Contents I. Introduction . 3 II. Evidence . 3 A. Gantz 911 Call 3

B. Desjarlais 911 Call 3 C. Police Evidence . 4 i. Cst. Boissy . 4

a) Arrival at the Gantz Residence . 4

b) Statement in the Police Vehicle . 5

c) Mental Illness of the Accused . 6

d) Intoxication of the Accused . 7 ii. Sgt. Anderson . 7

a) Arrival at the Gantz Residence . 7

b) Intoxication of the Accused . 8 D. Medical Examiner’s Evidence . 8 E. Police Interview .. 9 i. Credibility of Statements . 9 ii. Reliability of Statements . 10 iii. Interview Statements about the Homicide . 11

a) The Attack . 11

b) Relationship with the Deceased . 12

c) Intoxication . 12

d) Mental Illness . 13 III. Law .. 14 A. Second Degree Murder and Manslaughter 14 B. Second Degree Murder and Intent 14 C. Common Sense Inference . 15 D. Motive . 16 IV. Analysis . 16 A. Nature and Duration of the Attack . 16 B. Direct Evidence of Intent 17 C. Motive . 17 D. Intoxication . 18 E. Mental Illness . 19 F. Cumulative Effect 20 V. Decision . 21 I. Introduction [ 1 ] Clayton Desjarlais (the “Accused”) is charged with committing the second degree murder of James Gantz (the “Deceased”).

The judge alone trial was conducted in various blocks of time between November 21, 2022 and July 12, 2023. [ 2 ] Five evidentiary voir dires were heard during this trial with evidence ruled admissible in four instances. The voir dire evidence included viva voce testimony of police officers and audio and audio/video recordings. By agreement of counsel that evidence was then applied to the trial proper.

[ 3 ] In closing submissions, Defence counsel admitted all the constituent elements of manslaughter had been proven beyond a reasonable doubt. I accept that position. The issue to be determined is whether the intent required for second degree murder has been proven. II. Evidence A. Gantz 911 Call [ 4 ] On December 17, 2020 at 21:39, the Deceased made a 911 phone call to RCMP dispatch. The entirety of this 6 minute 26 second phone call was audio recorded. [ 5 ] At the outset of the phone call, the Deceased identified the Accused as Clayton Desjarlais, stating he was in the house again.

The Deceased stated the Accused is “wreaking hell on her again...”, “raising shit”, and “threatening his auntie again”. There is no dispute the Deceased was referring to Sarah Desjarlais who was the Accused’s aunt and was present in the home at that time. The Deceased then stated the Accused “wants to fight in here” and “we don’t want him here.” He reiterated the last comment. [ 6 ] About 10 seconds later, at approximately 21:41 hours, apparent sounds of an attack begin. [ 7 ] During the next 1 minute and 36 seconds, the attack sounds continue. Sarah Desjarlais is heard yelling, “Go, go. Get out. Fuck, leave. Go.

Go on. Leave...Go...Fuck...Smarten up okay, smarten up...Get the fuck away from him.” The Deceased is heard groaning during that period. [ 8 ] This audio recording was previously ruled inadmissible for the truth of its contents. However, it is admissible for the purpose of determining the emotional and physical state of the Deceased at the time of the call, the identity of the attacker, the sequence and timing of events, the actual attack, the mens rea of the attacker, and the motive of the attacker. B. Desjarlais 911 Call [ 9 ] Sarah Desjarlais phoned 911 at 21:49.

She was connected to the Dispatcher at 21:51 hours. The conversation with Ms. Desjarlais occupied about 12 minutes of this audio recorded call. [ 10 ] During the phone call, Sarah Desjarlais described the Accused’s ongoing attack upon the Deceased. She also relayed statements made by the Accused. [ 11 ] In a voir dire , counsel jointly agreed this phone call was admissible for the truth of its contents under the res gestae exception to the hearsay rule.

They now disagree on the weight attaching to statements made by Sarah Desjarlais during that phone call. [ 12 ] When dealing with admissibility, counsel did not raise issues of reliability that could preclude admissibility under the spontaneous utterance exception, such as gross intoxication or exceptionally difficult viewing conditions: see R v MacKinnon , 2022 ONCA 811 at paras 44-47 , leave to appeal to SCC refused, 40581 (June 22, 2023).

However, those factors inform my determination of the probative value of this phone call. [ 13 ] In my view, multiple concerns arise about the reliability of statements made by Sarah Desjarlais during the phone call. It is evident from listening to the phone call that Ms. Desjarlais is impaired by alcohol at that time. Her impairment was confirmed by Cst. Boissy. Ms. Desjarlais presented with a strong smell of alcohol, flushed cheeks and glassy eyes. Her speech was slurred. Cst. Boissy described her as very panicked.

That characterization also applies to her presentation during the immediately preceding phone call. The emotional state and, more notably, intoxication level of Sarah Desjarlais raise significant concern about her ability to accurately perceive and narrate the interaction between the Accused and the Deceased. [ 14 ] Additionally, according to Ms. Desjarlais’ description, she relocated to the bedroom during the phone call. This raises concern about her ability to observe what was occurring in the living room between the Deceased and the Accused.

This concern is compounded by her frequent repetition of comments such as, “Jim is full of blood.” It is impossible to tell when she made this observation or if she is just repeating a previous observation. Consequently, in describing the attack, it is unclear whether she is observing what is actually occurring or recalling what has already happened. [ 15 ] In the totality of circumstances, statements made by Sarah Desjarlais during the 911 call are unreliable. I attribute no probative value to those statements. This includes her statement that the Accused said he was going to kill the Deceased and Ms.

Desjarlais as the attack was ongoing. [ 16 ] However, I do conclude the phone call provides evidence that the Accused attacked the Deceased, given the fact that Ms. Desjarlais placed the call to 911 to ask for help. The call also offers evidence of the attack duration. The call was placed at 21:49 and connected at 21:51, approximately 10 minutes after the first sounds of the attack can be heard on the Deceased’s 911 call. The fact that Ms. Desjarlais made the call is evidence the attack was still going at that time. C.

Police Evidence [ 17 ] As I concluded in the voir dires , police witness testimony remained consistent and intact during direct and cross-examination. Under all the circumstances, I accept as credible and reliable the testimony of all police officers who testified . i. Cst. Boissy

a) Arrival at the Gantz Residence [18] Cst. Boissy was dispatched to the Gantz residence in response to the 911 call from the Deceased. While enroute, Cst. Boissyreceived another RCMP radio dispatch informing him that Sarah Desjarlais had phoned with an update that the Accused was stompingon James Gantz. [19] Cst. Boissy was familiar with that residence and with the Accused, the Deceased, and Sarah Desjarlais from prior interactions.Cst. Boissy was aware that the Accused was prohibited under a bail order condition from attending that residence. [20] Cst. Boissy arrived at the residence at 22:01 hours.

Upon entry, Cst. Boissy observed the Accused sitting very upright in aliving room chair looking straight ahead. The Deceased was laying on the floor to the Accused’s left in front of the couch. [21] Within minutes of his arrival, Cst. Boissy arrested the Accused for aggravated assault. While escorting the Accused to hispolice vehicle, Cst. Boissy cautioned the Accused and provided his right to counsel. The Accused verbally acknowledged hisunderstanding of both statements.

b) Statement in the Police Vehicle [22] Cst. Boissy testified that, while being placed in the rear of the police vehicle, the Accused stated, “don’t revive that fucker.”That comment was voiced at a conversational volume but in a very unpleasant kind of aggressive tone. [23] In a written report drafted later that shift, Cst. Boissy described that conversation as follows: Clayton stated that, constable, you should not help him. That you should let him die. [24] During cross-examination, Cst.

Boissy testified that his trial testimony rather than his report language was his recollection ofthe specific words voiced by the Accused. Cst. Boissy testified he vividly remembers the Accused’s utterance, “Don’t revive thatfucker”, as this was the first time he was the first officer to arrive at a murder scene. [25] Cst. Boissy was cross-examined on the difference between his trial testimony and his written report. He was emphatic that histrial testimony about that statement was accurate.

I accept his evidence, noting that on several other occasions he candidly acknowledgednot recalling certain specific comments made during his interaction with the Accused. [26] The Accused’s statement to Cst. Boissy is after-the-fact conduct. It is widely recognized that after-the-fact conductencompasses what the Accused both said and did after the offence charged was committed. [27] The relevance of after-the-fact conduct is contextually sensitive.

Particularly applicable to this case are comments made in Rv Lightning, 2018 ABCA 324 at para 32: As the Supreme Court of Canada found in R v White, (SCC), [1998] 2 SCR 72 at 88-90, 161 DLR (4th)590 [White (1998)], it may be proper for a trial judge to instruct a jury that evidence of after-the-fact conduct has “no probative value”when, as a result of an admission by an accused, that evidence cannot logically support an inference of guilt with respect to the offencebeing tried rather than the admitted offence.

Such an instruction is most likely to be warranted where, as in Arcangioli itself, the accused has admitted to committing the actus reus ofa criminal act but has denied a specific level of culpability for that act, or has denied committing some related offence arising from thesame operative set of facts. In such cases, the participation of the accused in the culpable event is not at issue; the question to be decidedis merely the extent or legal signification of that participation. In R v Marinaro, (SCC), [1996] 1 SCR 462, rev’g(1994), (ON CA), 95 CCC (3d) 74 (Ont.

C.A.), this Court adopted the dissenting reasons of Dubin, C.J.O., who heldat p. 81 of the judgment below: If, at the trial, the appellant had persisted in his earlier denial of non-involvement in the killing of the deceased, the jury would have beenentitled -- from the evidence of the appellant’s flight from the scene, the appellant’s false statements, and the destruction of evidence -- todraw an inference of consciousness of guilt from which a further inference of culpability in the crime could also have been drawn.

Oncethe appellant had admitted at trial that he had caused the death of the deceased, however, such evidence had very limited application. Ithad no application in determining whether the offence committed by the appellant was either murder or manslaughter. See also R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314, at pp. 342-44.

Under such circumstances, it can be said that thepost-offence conduct of the accused is “equally explained by” or “equally consistent with” two or more offences. [28] In this case, the Accused’s statement is relevant evidence in assessing the existing relationship between the Accused andDeceased. It is also relevant to determining the level of functionality shown by the Accused immediately after the attack (R v Lightningat para 31). However, it is not relevant to whether the Accused had the requisite intention for second degree murder in the more generalsense.

c) Mental Illness of the Accused [29] Cst. Boissy placed the Accused into the police vehicle at about 10:04 p.m. The secure idle control was activated to lock andheat the vehicle. Cst. Boissy also started the Watchguard system to audio and video record the Accused while he returned to theresidence to attend to Mr. Gantz. This system remained operational during the entire time the Accused remained in the police vehicle. [30] The Accused was alone in the vehicle outside the Gantz residence for 2 hours, 31 minutes. The related recording captures theAccused continually engaging in bizarre behaviour. At times he animated both sides of a conversation, frequently invoking demons and

guardian angels. He regularly made hissing, growling, and guttural sounds. [ 31 ] Cst. Boissy visited the police vehicle 2 or 3 times in that time frame to ensure the Accused was comfortable. He had minimal conversation with the Accused. The extended bizarre behaviour of the Accused ceased immediately upon the arrival of Cst. Boissy and resumed with his departure. During those brief visits, the Accused did not exhibit any unusual behaviour. Instead, he presented as calm and rational. The Accused was similarly coherent when Cst.

Boissy returned to the vehicle at 12:01 and arrested him for murder. [ 32 ] During the 10-minute drive to the Mayerthorpe RCMP detachment, the Accused and Cst. Boissy had an exchange in which the Accused stated, “I’m Hells Angels” and “I’m your guardian.” These comments did not strike Cst. Boissy as odd. He had heard similar comments in previous encounters with the Accused.

d) Intoxication of the Accused [ 33 ] Cst. Boissy had interacted with the Accused a dozen or more times before the offence date. On about four or five of those occasions, the Accused was impaired by alcohol or drugs. In most of those encounters, the Accused had consumed alcohol, and Cst. Boissy observed the Accused unable to maintain balance and with slurred speech. He described the Accused’s behaviour during those previous encounters as comparatively a little more standoffish or a little more aggressive. [ 34 ] Cst. Boissy believed the Accused had consumed alcohol while at the Gantz residence.

However, based on prior contact, he did not believe his level of intoxication was to an impairment degree. [ 35 ] Cst. Boissy also did not suspect the Accused was intoxicated by methamphetamine use. He explained the Accused: was very able to understand my direction. He was very compliant. He was able to lift a foot and put on his shoe. I remember, you know, him not having difficulty getting into the vehicle. I remember him standing fine in the cell block area.

I remember him at least indicating and appearing to understand my directions on how to use the phone in the solicitor-client room and where the numbers were. He seemed very coherent and capable of understanding in my opinion. [ 36 ] Following arrest, Cst. Boissy completed a Prisoner Report Form. He recorded “alcohol” under the “possible cause of impairment” heading. He did this as the Accused told him he had consumed alcohol in response to Cst. Boissy’s standard question of whether alcohol or drugs had been used. Cst.

Boissy did not detect any alcohol smell from the Accused or observe any obvious signs of impairment. Those direct observations would have been recorded elsewhere in the Prisoner Report Form, and no such notations were made. ii. Sgt. Anderson

a) Arrival at the Gantz Residence [ 37 ] Sgt. Anderson arrived at the residence at 22:07 hours. He observed Gantz on the living room floor against the couch. Gantz was breathing. Sgt. Anderson described the observable injuries: ...a severe head injury. The side of his head was badly deformed. His ear was severely injured, and he was basically drenched in blood from head to mid-chest and laying in a pool of blood on the floor. [ 38 ] Sgt. Anderson also observed blood splatter all the way up on the wall to the ceiling on the wall opposite the Deceased.

Blood spatter was also present on a chesterfield pillow and on the living room floor on the corner opposite from the Deceased. A wooden backscratcher was found on a living room coffee table. The end of that device was covered in blood. [ 39 ] Sgt. Anderson and Cst. Boissy assisted paramedics in providing life saving measures until an Advanced paramedic unit arrived. Mr. Gantz was declared deceased shortly after their arrival. This occurred at about 23:15 hours. [ 40 ] Sgt. Anderson subsequently photographed the Accused and his clothing during the lodging process at the RCMP detachment.

He observed blood spatter on the Accused’s face and both sides of both hands. The jeans and jacket of the Accused contained multiple droplets of blood. The bottom of the Accused’s socks were soaked with wet blood. [ 41 ] It is admitted that the blood observed by police at the residence and on the Accused’s body and clothing is that of the Deceased.

b) Intoxication of the Accused [ 42 ] Sgt. Anderson had interacted with the Accused on several occasions before the offence date, during which the Accused was exhibiting different levels of intoxication. [ 43 ] While processing the Accused at the RCMP detachment, Sgt. Anderson smelled alcohol on the Accused’s breath. The Accused’s speech was slurred, and his eyes were glassy. Sgt. Anderson described his intoxication level as mild, noting he had observed the Accused much more intoxicated in previous dealings. D. Medical Examiner’s Evidence [ 44 ] Dr.

Bernard Bannach was qualified to provide expert opinion evidence in the area of forensic pathology. Counsel jointly accepted the Autopsy Report prepared by Dr. Bannach for the truth of its contents.

[ 45 ] During testimony, Dr. Bannach adopted as accurate the

summary of Findings and Conclusions Related to Death contained in the Autopsy Report Form. That

summary states: In the autopsy there were numerous significant blunt force injuries present including the head, neck and torso. Injuries to the head included numerous abrasions, contusions and lacerations of the face and scalp as well as axonal and hypoxic-ischemic injury of the brain. There was bruising of neck muscles. Torso injuries are significant with numerous rib fractures, a flail chest segment, bilateral hemothoraces, a left chest wall hematoma, a cardiac contusion and subcutaneous emphysema. Natural disease detected included atherosclerotic coronary artery disease and benign hemanglomas in the liver.

Postmortem toxicology showed a blood alcohol (ethanol) level over 1 ½ times the legal limit to operate a motor vehicle in the Province of Alberta. No drugs of toxicological significance were detected in the blood by standard screening procedures. It is my opinion that the decedent, James Gantz, died as a result of multiple blunt force injuries. [ 46 ] During direct examination, Dr. Bannach stated injuries to the Deceased’s head and torso could have been produced by either kicking or stomping. A shoeless assault would require more force to cause the injuries than if footwear was worn. [ 47 ] Dr.

Bannach testified a minimum of three kicking or stomping uses of force was required to cause the head injuries. A skull fracture did not occur. He volunteered that the number of attacks to the Deceased’s head could be more than that. Force less than a full blown kick would have been sufficient to cause the head injuries. [ 48 ] Dr. Bannach opined that the injuries to the Deceased’s torso required multiple applications of force to both the right and especially the left side of the Deceased’s chest. He noted a large flail chest segment was found in that area. Dr.

Bannach also testified that ribs 2 through 12 on both sides of the Deceased’s chest were each fractured multiple times. These fractures did not result from CPR efforts. They also would not have been caused by being struck with the backscratcher found in the living room. [ 49 ] From Dr. Bannach’s viewpoint, the most serious injuries were those in the chest region. Those injuries, notably the large mobile flail segment of the chest wall, would lead to an inability to adequately breathe. This decreased the body’s ability to deliver oxygen to vital organs. This was compounded by blood loss from the head injuries. In

summary: And that also goes towards death basically by asphyxiation. There is a lack of delivery of oxygen to the vital structures in the body, both by the mechanical damage to the chest wall and due to the blood loss, that is leading to the death of Mr. Gantz. [ 50 ] It was Dr. Bannach’s opinion that these injuries occurred while the Deceased’s heart was beating. While difficult to offer precise timing, they occurred within 24 hours before death and could have occurred just prior to death. [ 51 ] Dr.

Bannach stated that a large, extensive flail chest segment, as in this case, was a life-threatening emergency requiring medical intervention. Death could follow in as little as minutes, although some people might survive half an hour or an hour or more. E. Police Interview [ 52 ] The interview of th e Accused was conducted by Cpl. Hoysradt at the Mayerthorpe RCMP detachment. The interview began at 12:58 and concluded at 15:30 hours. The interview was both audio and video recorded. Two cigarette breaks were audio recorded only. The first break occurred at 1:58 and lasted just less than four minutes.

The second break of approximately three minutes occurred immediately after the interview concluded. [ 53 ] Statements made by the Accused during the interview were previously ruled to be voluntary. The credibility and reliability of these statements must now be assessed to determine what, if any, weight they attract in determining ultimate reliance at trial. i. Credibility of Statements [ 54 ] Crown counsel submits the Accused was honest in speaking with Cpl. Hoysradt during the police interview. Defence counsel contends the Accused displayed a tendency to embellish during that interview.

Consequently, his statements should be approached with caution. [ 55 ] In support of his position, Defence counsel cites the Accused’s answer to the question of how many blows he delivered to the head of the Deceased. Defence characterized, “um like 30, 40”, as a quick guess. Defence counsel contrasts this with the expert opinion evidence of Dr. Bannach, which Defence summarized as stating “the blows could have numbered as few as three”. [ 56 ] When considered in full context, the one example cited by defence does not support the suggestion of embellishment. Dr.

Bannach testified that a minimum of three kicking or stomping uses of force caused the head injuries. That number could be more. The language employed by Dr. Bannach suggests a cautious approach to quantification. [ 57 ] The Accused’s estimate of 30-40 blows included both punches and kicks to the Deceased. He initially gave the estimate in response to a question about how many head shots he gave the Deceased. However, the Accused went on to clarify that he also gave body blows. Taken together, this evidence is not inconsistent with Dr.

Bannach’s testimony, which was limited to a particular use of force to a particular area. The Accused’s statement is also consistent with the Deceased’s head injuries and multiple rib fractures. [ 58 ] As a general observation, the Accused provided a very specific, consistent, and plausible account of events during the police interview. His drawing of the living room and related explanation further indicate his continuous efforts to honestly and carefully reveal what occurred.

I note that drawing is consistent with the observations of police officers who attended the residence. [ 59 ] Based upon the totality of evidence, I find the Accused spoke truthfully during the police interview.

ii. Reliability of Statements [ 60 ] I also conclude that the police interview statements by the Accused are reliable. In doing so, I dismiss the argument that mental illness exhibited during the police interview raises pause about the accuracy of the Accused’s recitation of events. I also reject the Defence argument that the Accused’s intoxication level and mental illness during the attack impaired his ability to accurately recall what occurred. [ 61 ] At the time of the police interview, the Accused was observed to be sober.

His monologue, while alone during an interview recess, was properly characterized as odd but not uncommon in the interview experience of Cpl. Hoysradt. As evidenced by the audio/video recording, the Accused presented as lucid and logical during their exchanges. He fully understood and thoughtfully responded to questions. I accept the evidence of Cpl. Hoysradt that she had no concerns about his ability to understand police cautions or questions asked during the interview. As stated by Cpl. Hoysradt, she was able to hold a conversation with him.

Any psychotic delusions were isolated in time from when the Accused and Cpl. Hoysradt were directly interacting. [ 62 ] After offering brief answers to introductory questions, the Accused became increasingly expansive. His replies were presented calmly and regularly involved lengthy pauses. He provided detailed, coherent answers to questions about his relationship with the Deceased and Sarah Desjarlais and the attack. At the request of Cpl. Hoysradt, he explored specific issues, particularly the attack details, on multiple occasions. The responses of the Accused remained consistent.

They support his acknowledgment of having a very clear recollection of events. [ 63 ] That recollection is meaningfully corroborated by various sources of evidence. The Agreed Statement of Facts confirms the Accused was prohibited by Court order from having any contact with the Deceased at the time of the offence.

Video of his liquor store purchases, police observations of alcohol bottles, and descriptions of the Accused’s intoxication level are consistent with the Accused’s self-assessment voiced in the interview. [ 64 ] Police observations of the homicide scene, including the blood spattered on the premises and the Accused being covered in blood and wearing blood saturated socks, corroborate his attack on the Deceased.

Police testimony regarding presence of a bloodied backscratcher and the positioning and state of the Deceased are consistent with the diagram details drawn and explained by the Accused during the interview. [ 65 ] Additionally, the expert opinion of Dr. Bannach (which is accepted by the Court) regarding the cause, extent, and nature of the injuries suffered by the Deceased is consistent with the Accused’s recitation of the attack. [ 66 ] In conclusion, I accept as accurate statements made by Accused during his interview with Cpl. Hoysradt. iii. Interview Statements about the Homicide

a) The Attack [ 67 ] In first describing what occurred, the Accused stated he arrived at the Gantz residence around 4:00 or 5:00 p.m. Upon arrival, he spoke with the Deceased and Ms. Desjarlais about spiritual issues while reviewing the contents of his black binder. The Accused then walked to the liquor store where he purchased alcohol. (The Agreed Statement of Facts states this purchase was completed at 18:35). [ 68 ] The Accused returned to the Gantz residence, where he resumed conversation with the Deceased and Ms. Desjarlais in the kitchen.

They became defensive and told the Accused he was trying to make them feel threatened. The Accused felt threatened: And then we started being aggressive. And then they both turn on me like fucking like I was a nobody. Like I didn’t even fucking know them or existed... So I reacted in defence and I started hitting and kept on hitting and I did not stop. [ 69 ] After this initial

summary account of what occurred, the Accused provided more specifics about the attack and his relationship with the Deceased. [ 70 ] The Accused arrived at the Gantz residence about 4:00 or 5:00 p.m. He understood that a bail order condition prohibited contact with the Deceased and attendance at his residence. He did not attend the residence with a plan to kill the Deceased. His purpose was to allay his Aunt’s concern about himself. [ 71 ] The Accused and the Deceased were of similar height. The Deceased was a fair bit older.

Both the Deceased and the Accused were standing when the Accused began punching the Deceased in the head with closed fists. The Deceased did not issue one punch. The Deceased “said something that set me off, it was off. And then um I just started reacting. And then I just kept on.” [ 72 ] The Deceased dropped after maybe one shot. In a combination of kicks and punches, he delivered 30 or 40 blows. The head kicks were delivered straight down. The Accused was socked, not wearing footwear. [ 73 ] The Accused also kept on giving him blows to the rib, torso area.

Most of those were directed to the left side. [ 74 ] During the attack the Accused was: telling [Gantz] exactly like do you like how that feels um and then I was telling him you know um; I was cussing I can’t remember exactly what I was saying. But I was swearing and telling him that ah you know that he deserved every frickin minute of it I guess. I don’t know. [ 75 ] The Accused stopped striking the Deceased when he saw “this weird kind of red uh brain matter...” He added, “...I knew he was at the last stages of life”.

At that point, the Accused began striking the Deceased with a wooden backscratcher found on a living

room table. He compared it to a whip. [ 76 ] When the attack ended, the Accused sat in a chair and was: ...cussing at [Gantz] and then telling him ah he deserved what he got. And you know telling him that he’ll never do that again or whatever he’d done or whatever.

b) Relationship with the Deceased [ 77 ] During the interview, the Accused discussed his relationship with the Deceased, whom he had known for about 22 years. He cared about the Deceased. In general, their relationship was good on some days; on other days, the Deceased would snap for no reason. “We just didn’t get along.” Later in the interview, the Accused described a more hostile relationship. The Accused had a sense that the Deceased hated him. He was pretty sure the Deceased wanted him done [killed].

The Deceased was “one of my main frickin enemies”. [ 78 ] The Deceased had never physically harmed the Accused. However, his actions towards the Accused were “aggressive...almost as if he kept on trying to taunt me.” When the Deceased snaps at Ms. Desjarlais, the Accused becomes really defensive. He stated, “...my main concern was him being abusive to her. And um or anybody else.”

c) Intoxication [ 79 ] During the interview, the Accused stated, “I have a drug problem. I like smoking Crystal Meth, I like smoking marijuana, I drink, and I smoke cigarettes.” [ 80 ] The Accused volunteered: And you know I have full control over it, it’s like not ah you know I have an addiction or a problem. Cause I’ve been doing it so long that I just become accustom to it... [ 81 ] In response to a question from Cpl. Hoysradt the Accused stated he did not turn into a different person when using crystal meth or alcohol. He added: But like say if I’m battling something spiritual my demeanor changes.

I go from um angelican to demon in battle and in defence. So when I get defensive I get overly protective... [ 82 ] Cpl. Hoysradt questioned the Accused about his alcohol consumption while at the Gantz residence. The Accused responded that he started drinking when he arrived at the house. He probably drank about a boot mickey and a full mickey of vodka. [ 83 ] The Accused described his intoxication state that night as: Intoxicated um not really intoxicated cause like I can drink for like three or four days straight and without sleeping or anything and just keep going. I built up a tolerance...

d) Mental Illness [ 84 ] During the police interview, the Accused told Cpl. Hoysradt he was diagnosed about four years earlier with schizophrenia. This followed a couple of violent behaviour episodes in which he was “trying to put a spiritual armour on people.” Those people “were after something I was guarding.” His schizophrenia is treated by monthly injections. The are designed to “keep me from freaking out I guess PTSD.” The Accused thought his last injection was about a month and a half ago. The Accused acknowledged that in the past he had gone months without receiving the prescribed injections. [ 85 ] Cpl.

Hoysradt asked whether the Accused noticed a change in his functioning or behaviour if the monthly injection regime is not followed. He responded, “Ah no I don’t honestly... I’m the same me. I don’t change.” [ 86 ] The Accused also stated he was doing a lot of spiritual work. He had observed people’s reactions to him change from initial happiness to hate several days later. While feeling shunned, he kept “battling the spiritual demons and whatever’s out there hurting people.” As an example, he stated: I walk into a place and um somebody that I recognize is there but their whole demeanour changes.

Like I can literally see their whole face like shape shifting or some weird fucking shit. And ah I believe it was like medicine or bad medicine that I was fighting against. [ 87 ] When he was younger the demons tried to tell him to do something he would not normally do. He would black out lots from drinking and “did some shit.” The Accused stated he no longer reaches “that point where I’m blacking out and doing something I would never or would regret forever.” [ 88 ] The following exchange occurred about the demon’s influence upon the Accused: Hoysradt: ...do the demons tell you to do things? Desjarlais: Um no.

Hoysradt: Did anyone tell you to um kill Jim last night?

Desjarlais: Uh-uh. Hoysradt: No. Desjarlais: No that was all mine. Hoysradt: That’s all you. Desjarlais: Uh-huh. [89] Shortly after returning from the first cigarette break, the Accused was briefly alone in the interview room. During that time,he spoke (partially in whispers) of guardian and arch angels, spoke of love, loyalty, and honour, and appeared to respond to commentsfrom “Ma’am” or “Sir.” Upon Cpl. Hoysradt returning to the interview room, that commentary ended. He immediately returned tointeracting coherently with Cpl. Hoysradt. III. Law A.

Second Degree Murder and Manslaughter [90] A person commits culpable homicide when he causes the death of a human being by means of an unlawful act: CriminalCode, s 222(5)(a). [91]

Section 229 sets out when culpable homicide is murder: 229. Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; [92] Under s 234, if culpable homicide is not murder, then it is manslaughter. [93] Defence admits certain essential elements of the offence of second degree murder. Date, jurisdiction, and identity are alladmitted. The Accused also accepts that he unlawfully caused the death of the Deceased, making him guilty of unlawful actmanslaughter contrary to Criminal Code, s 234. B.

Second Degree Murder and Intent [94] The central question in this case is whether the Crown has proven beyond a reasonable doubt that the Accused had the state ofmind for murder, or what has been called “subjective foresight of death”: R v Martineau, (SCC), [1990] 2 SCR 633 at646. [95] There are two ways for the Crown to prove the intent for second degree murder under s 229(

a) of the Criminal Code. [96] Under s 229(a)(i), the Accused has the requisite intent for second degree murder if he means to cause the death of theDeceased. This is occasionally referred to as “express intent”. The Accused must mean (i.e., intend) to cause death. Recklessness doesnot suffice for this form of specific intent: E. G.

Ewaschuk, QC, Criminal Pleadings & Practice in Canada, 3d ed (Toronto: ThomsonReuters, 2023) at 27:39. [97] Under s 229(a)(ii), the Accused has the intent for second degree murder if he means to cause bodily harm to the Deceased thathe knows is likely to cause his death and is reckless whether death ensues or not. This is characterized as “implied intent.” [98] In R v Moo, 2009 ONCA 645 at paras 45-46, leave to appeal to SCC refused, 33661 (July 15, 2010), Watt JA summarized thegoverning principles of implied intent for second degree murder.

The fault element in the definition of murder in s. 229(a)(ii) consists of three components: • Intention (to cause bodily harm); • Knowledge (that the bodily harm will probably be fatal); • Recklessness (whether the victim dies or lives); ... The most prominent among the three components of the fault element in s. 229(a)(ii) is the intention to cause bodily harm of such agrave and serious nature that the person inflicting the harm, the accused, knows that the harm is likely to kill the victim.

Thiscombination of intention and subjective foresight of the likelihood of death renders the recklessness component in s. 229(a)(ii) almost anafterthought: R. v. Nygaard, (SCC), [1989] 2 S.C.R. 1074, at pp. 1087-1088.

(see also R v Radita, 2019 ABCA 77 at para 40). [99] For both express and implied intent, the intention for second degree murder must coincide at some point in time with theunlawful killing. As stated in R v Cooper, (SCC), [1993] 1 SCR 146 at 157: “it is not always necessary for the guiltyact and the intent to be completely concurrent.” It is sufficient that the intent and the act are temporally linked at some point in timeduring the entire transaction: ibid at 157-58. C.

Common Sense Inference [100] In determining whether the Accused had the specific intent to commit murder, the Court: ...may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Common sensedictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely toproduce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act.

In otherwords, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended thoseconsequences. (R v Seymour, (SCC), [1996] 2 SCR 252 at 263). [101] As stated in R v Rodgerson, 2015 SCC 38 at para 19: The more severe the injuries caused by [the Accused], and the more force required to inflict them, the stronger the inference that heintended to kill [the victim] or cause her serious injury. [102] However, where there is evidence the Accused was intoxicated at the time of the offence, that intoxication must be taken intoaccount when deciding whether to draw the permissible common sense inference: R v Daley, 2007 SCC 53 at para 50; R v Walle, 2012SCC 41 at para 61.

Similarly, it is necessary to consider evidence of the Accused’s mental illness and its impact on whether the Accusedhad the intent for second degree murder: R v Spence, 2017 ONCA 619 at para 30; R v Ledesma, 2020 ABCA 410 at para 48. [103] Ultimately, when deciding whether to draw the common sense inference, the Court must consider all the evidence that couldrealistically bear on the Accused’s mental state and decide if the Crown has proven beyond a reasonable doubt that the Accused had oneof the requisite intents for second degree murder: Walle at paras 65-67. D.

Motive [104] The concepts of intent and motive are distinct. Motive is irrelevant to criminal responsibility. It is not an essential element ofany criminal offence. By contrast, intent is a constituent element of a criminal offence the Crown must prove beyond a reasonable doubt.In R v Lewis, (SCC), [1979] 2 SCR 821 at 831, the Supreme Court explained: In ordinary parlance, the words "intent" and "motive" are frequently used interchangeably, but in the criminal law they are distinct.

Inmost criminal trials, the mental element, the mens rea with which the court is concerned, relates to "intent", i.e. the exercise of a free willto use particular means to produce a particular result, rather than with "motive", i.e. that which precedes and induces the exercise of thewill. The mental element of a crime ordinarily involves no reference to motive: 11 Hals. (4th ed., 1976), para. 11. [105] Even though it is not necessary for the Crown to prove motive, evidence of motive may be relevant to determining whether theAccused had the requisite intent: ibid at 833, 834-35. IV. Analysis A.

Nature and Duration of the Attack [106] The Crown argues that the nature of the attack may provide guidance to the Court in determining whether the Accused had theintent for second degree murder. The Defence argues that the actual cause of death was the blows to the ribs, which lead to asphyxiationbecause of the collapsed chest wall. The Defence argues that it is not obvious kicking someone in the ribs would kill them. [107] During his police interview the Accused provided specifics about the attack.

According to the Accused, the Deceased wasfloored by one punch, after which the Accused delivered hard kicks and kept on giving him body blows. He estimated delivering 30-40blows in a combination of punches and kicks to the head and body of the Deceased. The head kicks were dispensed in a piston motion. [108] The Accused ended the attack after the Deceased’s brain matter was on the floor. The Accused knew the Deceased was at thelast stages of his life. The Accused stated the Deceased: was sitting there and he was doing the whole death gurgle.

Ah so I don’t know he was kind of he was struggling to breathe and he wastaking his last breaths. [109] Uncontested expert opinion evidence concluded the Deceased suffered numerous significant blunt force injuries to his head,neck, and torso. The torso injuries included multiple fractures to all 24 ribs and a life-threatening large mobile flail segment of the chestwall.

[ 110 ] The evidence shows the attack occurred over a significant period of time. The first sounds of the attack can be heard during the Deceased’s 911 call, at approximately 21:41 hours. At 21:49 hours, Sarah Desjarlais called 911, and she was connected to the dispatch at 21:51. In the police interview, the Accused confirmed he was hitting the Deceased while Ms. Desjarlais was on the phone, making the attack at least 10 minutes long. [ 111 ] On the whole, the attack was not a fleeting incident involving a single blow.

Instead, it extended over at least 10 minutes and involved multiple and varied assaults upon the Deceased. There were multiple fractures to all 24 ribs, and the Accused estimated he delivered a total of 30-40 blows. This evidence illustrates the ferocity of the prolonged attack, the delivery of multiple blows, and the targeting of multiple body locations. [ 112 ] I note the Defence argument focuses on the specific cause of death, which was the flail injury to the ribs.

However, the Supreme Court has made it clear the subjective intent for murder does not need to coincide with the specific action that caused death, so long as it coincides with some part of the transaction that resulted in death: Cooper at 157-58. In this case, the entire transaction invites the inference the Accused intended to kill the Deceased or to cause bodily harm of such a grave and serious nature that he knew it was likely to cause death. B. Direct Evidence of Intent [ 113 ] In the police interview, the Accused provided some direct evidence of his intention when he attacked the Deceased.

He described his thought process during the attack: Cpl. Hoysradt: So when you started hitting then you weren’t going to stop until he was dead? Desjarlais: Pretty much. I didn’t really think about that... until I sat there and thought about it. And then um continued hit-hitting him.

So I don’t know how to say that but... [ 114 ] The Crown argues this evidence shows the Accused contemplated that he was going to hit the Deceased until he was dead and decided to continue attacking. [ 115 ] The Defence argues this statement can be interpreted to mean the Accused did not really think about the consequences of hitting the Deceased until he sat there and thought about it.

The Defence argues the sequence is unclear, and the word “then” should not be relied on to find the events occurred in the sequence alleged by the Crown. [ 116 ] I agree with defence counsel that this response, viewed in context, falls short of persuasive evidence of an express intent to kill. The Accused’s answer about the existence and timing of his intention is significantly qualified. Importantly, the

interpretation of this comment must recognize the Accused’s admission that he did not know how to respond to the question. [ 117 ] However, I do not agree with the Defence that the word “then” cannot be taken to indicate the sequence of events. The full statement is, “and then I continued hitting him”. The combination of the word “then”, along with the description that the hitting “continued” and the sequence of the phrase in the entirety of the Accused’s description of events, makes it clear the attack continued after the Accused “sat there and thought about it”.

This is direct evidence that the Accused thought about whether his actions were going to kill the deceased and that he then continued with the attack. C. Motive [ 118 ] The Crown argues the Accused heard the Deceased on the phone during his 911 call, advising the dispatcher that the Accused was at the residence, that he was not wanted, and that he was an idiot. At the time, the Accused was under release conditions not to have contact with the Deceased and would have known he was likely to be charged. He was also homeless and destitute and had no where else to go.

The Crown argues this would have made the Accused angry and given him motivation to kill the Deceased. [ 119 ] According to the evidence of the Accused, he was unaware of the conversation in the Deceased’s 911 phone call or even that such an emergency call had been placed. Accordingly, I do not accept that the Accused was angered by the prospect of forced removal from the residence. [ 120 ] Instead, in his police interview, the Accused explained his attitude toward the Deceased and stated they didn’t get along.

He believed the Deceased attempted to alienate him from the community and, on occasion, to intimidate him. The Accused was also pretty sure the Deceased wanted him killed. He was concerned about the perceived abuse of other people, especially Sarah Desjarlais. He explained, “I just gave him as much pain as he caused me... And for the pain that he caused whoever else was out there that’s suffering as I was.” [ 121 ] During the police interview, the following exchange occurred: Hoysradt: Okay. And did you think what you did was okay?

Desjarlais: Um if ah you know if you thought they were like hurting people and stuff like that I think it’s ok. Hoysradt: To take somebody’s life? Desjarlais: If he’s taking people’s lives and hurting people especially women then yes. [ 122 ] I conclude the reason the Accused attacked the Deceased was to avenge and end the abusive, wrongful behaviour he perceived the Deceased to have committed upon himself and other persons. That motivation is circumstantial evidence relevant to determining whether the Accused had the specific intention to commit murder.

It is also relevant to the Accused’s mental capacity at the time of the

attack and his ability to recall and understand what happened and what he was thinking at the time. D. Intoxication [ 123 ] The Defence argues that the Accused’s intoxication level was more than just mild, relying on the VICS footage from the RCMP cruiser. In doing so, the Defence does not advance the formal defence of intoxication.

Instead, it is presented as a factor to consider in the totality of circumstances to determine whether the intent for murder has been proven beyond a reasonable doubt. [ 124 ] The Crown concedes that the Accused consumed alcohol prior to the attack but argues that his level of impairment was minimal. [ 125 ] In the police interview, the Accused said he began drinking alcohol at the Gantz residence around 4 or 5 o’clock on the offence date. The Accused stated he probably drank about a boot mickey and a full mickey of vodka that night. This is partially corroborated by police photographs of the scene.

They include pictures of a 26-ounce bottle and a mickey of Alberta Pure Vodka in the kitchen area. The police photographer could not recall if the larger bottle contained vodka but testified the mickey was empty. [ 126 ] The two attending police officers had previous encounters with the Accused in which he exhibited signs of significantly more advanced impairment. [ 127 ] Sgt. Anderson described the Accused as mildly impaired on the night in question. Cst. Boissy testified the Accused’s intoxication level was not to an impairment degree. Cst.

Boissy did not observe any compromised balance, speech, or comprehension issue during his interactions with the Accused that night. [ 128 ] The observations and opinions of these two police witnesses are consistent with the Accused’s assessment of his intoxication state. He described himself as, “[i]ntoxicated um not really intoxicated.” As a seasoned drinker, he had built up a tolerance for alcohol. [ 129 ] The Accused’s behaviour also corresponds with his subjective opinion about his intoxication. He was immediately and properly responsive to police direction and displayed no signs of aggression.

Rather, he presented as polite, cooperative, and conversational in tone. There were also no signals of physical coordination difficulty as witnessed by police in prior encounters with the Accused while he was impaired. [ 130 ] Further, the ability of the Accused to subsequently recall specifically what occurred at the Gantz residence suggests his self- assessment was honest and accurate. [ 131 ] Based upon the totality of the evidence, the Accused’s conduct on the night of the offence demonstrates that he was minimally impaired.

That intoxication level, by itself, does not raise a reasonable doubt about whether he had the specific intent required for murder. E. Mental Illness [ 132 ] The Defence argues the mental illness of the Accused, as evidenced by his behaviour in the police car and during a recess in the police interview, suggests he had a very muddled perception at the time of the attack. [ 133 ] The Crown concedes that the evidence establishes the Accused had mental health issues around the time of the attack, including a diagnosis of schizophrenia.

However, the Crown argues there is no evidence that the Accused was not acting out of his own free will when he attacked the Deceased. [ 134 ] The audio/video recording from the police car captures the bizarre behaviour of the Accused. That behaviour disappeared completely and immediately when a police officer attended the vehicle. Albeit in a less dramatic fashion, the Accused briefly demonstrated abnormal behaviour while alone during the police interview. [ 135 ] Notably, all the evidence comes from events subsequent to the Accused’s attack upon the Deceased.

There is no evidence of any signs of mental illness presented before or during the attack. There is also no specific evidence that any mental illness impacted the Accused’s ability to intend the consequences of his actions or to foresee the consequences of those actions. A diagnosis of a mental illness does not necessarily guarantee a lack of foresight. The brutality of the attack also does not generate that conclusion. [ 136 ] Moreover, during his police interview, the Accused expressly disavowed the possibility that spirit demons instructed him to kill the Deceased. He informed Cpl.

Hoysradt that act “was all mine”. He stated he no longer blacks out as he did when younger and commits acts the demons demand. I agree with Crown counsel that these statements, in combination, confirm the Accused understands the difference between intentionally acting and acts done where he lacked the ability to perceive and respond to reality. [ 137 ] Under all the circumstances, I conclude that the recognized mental illness of the Accused did not impair his ability to intend the consequences of his actions or to foresee the probable consequences of his actions in attacking the Deceased.

It also does not raise a reasonable doubt that he did not intend his actions or foresee their consequences. F. Cumulative Effect [ 138 ] The Defence argues that, considered separately, the impairment or mental illness may not be sufficient to raise a reasonable doubt. However, a combination of these factors resulted in the Accused lacking either of the intentions required for a second degree murder conviction. [ 139 ] The Crown argues the cumulative effect of alcohol consumption and a mental health issue does not raise a reasonable doubt

about whether the Accused had the intent necessary to commit second degree murder. [ 140 ] I have considered the Accused's intoxication and his mental illness individually. I find now that the constellation of these factors, considered cumulatively, does not raise a reasonable doubt about the Accused’s intention in attacking the Deceased.

The evidence proves beyond a reasonable doubt that the Accused had the capacity to intend his actions, as well as to foresee and understand the consequences of his actions. [ 141 ] In the police interview, the Accused was able to clearly explain what happened and what he was thinking during the attack. Shortly after the attack on the Deceased, he was responsive and able to deal cogently with the police. Further, the Accused’s motive for attacking the Deceased assists in properly understanding those interview statements. The Accused perceived the Deceased to be his enemy.

In attacking the Deceased, he was ensuring no further perceived abuse would occur. The Accused stated that the demons did not tell him to attack the Deceased and that it was all him. [ 142 ] On this basis, I conclude that neither his level of intoxication nor his mental illness affected his ability to form the intent required for second degree murder.

Furthermore, when I consider all the evidence that relates to the Accused’s state of mind at the time of the attack, I find, beyond a reasonable doubt, that he intended to cause bodily harm of such a grave and serious nature that he knew it was likely to cause death. [ 143 ] There is also direct evidence from the Accused about his state of mind during the attack upon the Deceased. In the police interview, the Accused acknowledged repeatedly stomping and punching the Deceased. At one point during the assault, the Accused stopped and thought about whether he would hit the Deceased until he died.

The Accused then resumed the attack. That attack ended when the Accused knew the Deceased was at the last stages of his life. It is clear from the Accused’s statement that he knew his actions were likely to kill the Deceased, and he made the choice to continue. [ 144 ] The circumstances of the assault offer further evidence that the Accused had the implied intent to kill the Deceased. Given the duration and severity of the attack, the decision to inflict serious bodily harm was clearly intentional.

This is also supported by the Accused’s statement that he intended to cause the Deceased as much pain as the Deceased had caused him and others. [ 145 ] Further, the nature and duration of the attack supports the inference the Accused knew his actions were likely to kill the Deceased. The assault was prolonged. It involved foot stomping and fist punching on a victim who was immediately rendered vulnerable. Sufficient force was executed to fracture all the Deceased’s ribs in multiple locations. Serious head injuries resulted.

The savagery of the attack is imaged by blood spattering on a wall from floor to ceiling, blood pooling on the floor, the bloodied body of the Deceased, and the blood saturated socks of the Accused. In total, the attack lasted for at least 10 minutes. [ 146 ] Crown Counsel argues the evidence shows the Accused understood what he was doing and, therefore, he had an express intention to kill the Deceased. I disagree with the Crown that the Accused’s statement shows he intended to kill the Deceased.

To the contrary, it makes clear the Accused did not think about the consequences of his actions until he sat back, and, at that point, he merely decided to continue. In my view, the comment’s content does not necessarily mean the Accused intended to kill the Deceased.

The language is equally consistent with the Accused’s intention to cause bodily harm of such a grave and serious nature that he knew it was likely to cause death. [ 147 ] In conclusion, I find, beyond a reasonable doubt, that the Accused intended to cause bodily harm to the deceased, that he knew death was a likely consequence of his actions, and that he was reckless as to whether death ensued. V. Decision [ 148 ] The Accused is guilty of second degree murder in the death of James Gantz on December 17 th , 2020. Heard on the 29 th day of September, 2023.

Dated at Edmonton, Alberta this 29th day of September, 2023. L.R.A. Ackerl J.C.K.B.A. Appearances: Heather Fraser and Dallas Sopko for the Crown

Gary Smith for the Accused