R v Sikora, 2023 ABKB 226

Court of King’s Bench of Alberta Citation: R v Sikora, 2023 ABKB 226 Date: 20230419 Docket: 220546774Q1 Registry: Calgary Between: His Majesty the King Crown - and - Richard Sikora and Jacob Tolchinsky Accused Corrected judgment: A corrigendum was issued on April 25, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Justice W.T. deWit _______________________________________________________ I. Introduction

[ 1 ] Mr. Richard Sikora and Mr. Jacob Tolchinsky have both been charged with first degree murder contrary to s. 235 of the Criminal Code . On November 26, 2018, Dennis Lewis, the deceased, was shot and stabbed at his residence located on West Creek Mews, Chestermere, Alberta (“the Residence”) and died shortly after being shot. After hearing a knocking or a doorbell, Mr. Lewis opened the front door of his residence which resulted in two individuals forcing their way into the Residence, then assaulting and confining Mr. Lewis and his wife. One of these two individuals stabbed Mr. Lewis in the abdomen.

These two individuals then went to the back door of the Residence and let two other individuals into the Residence. At some point Mr. Lewis was also stabbed in the head. It was thought that there were guns or diamonds in a safe located in the Residence. Mr. Lewis was then shot in the back while being taken to the room in the residence where a safe was located which the four individuals wanted Mr. Lewis to open. After Mr. Lewis was shot, all four of the individuals fled the scene leaving Mr. Lewis and his wife in the Residence. Mr.

Lewis died because of the gunshot to his back and the stab wounds to his head and torso. In this case, two individuals, Mr. Pillay and Mr. Gittens, who the Crown submits were the first two individuals to enter the residence, have plead guilty to manslaughter. [ 2 ] The Crown’s position is that these accused committed first degree murder, not because the murder was planned and deliberate, but that it this was a constructive first degree murder in that the killing occurred while committing the criminal offence of forcible confinement, as set out in s. 231(5) (

e) of the Criminal Code . [ 3 ] Although the accused in this case are both charged with first degree murder, the issues relating to the remaining accused, Mr. Tolchinsky and Mr. Sikora, are very different both legally and factually. Therefore, I will deal with each individual accused separately when dealing with the issues before the Court. II. Issues 1. Jacob Tolchinsky a. Has the Crown proven beyond a reasonable doubt that Mr. Tolchinsky is guilty of murder or manslaughter? 2. Richard Sikora a. Identity: Has the Crown proven beyond a reasonable doubt that Mr.

Sikora was one of the individuals involved in the home invasion robbery? b. Has the Crown proven beyond a reasonable doubt that Mr. Sikora is guilty of murder or manslaughter? III. Facts Regarding Injuries and Cause of Death of Mr. Lewis [ 4 ] In this case, there is no issue with respect to the cause of death. According to the autopsy report and the testimony of Dr. Akmak Coetzee-Khan, the deceased had a gunshot wound to the mid-back on the spine which measured 4 cm x 2.5 cm.

He further testified that the pellets from this wound resulted in the right lung collapsing, damaging the diaphragm and fracturing two ribs. He testified that the trajectory of the shotgun blast was across the body from left to right and in an upwards direction. He also testified that certain wadding, from the shotgun shell, was found inside of the deceased’s body which would indicate that the end of the barrel of the firearm was in a short to mid range distance, which would be approximately 15 cm to 2 metres, from the deceased’s body when the shotgun was discharged. Dr.

Coetzee-Khan testified that it was unlikely that the firearm injury would not cause death on its own. [ 5 ] Dr. Coetzee-Khan also testified that the deceased had a knife wound to his abdomen, and three knife wounds to the right side of his head. These stab wounds to the head were to the lower ear, the upper ear and the right temporal scalp of the deceased. Dr. Coetzee-Khan was asked if the stab wound to the abdomen would have likely caused death and he indicated that survival was possible with respect to that puncture wound if there was immediate surgery.

He also testified that the stabbing injuries to the head did not go into the brain and the deceased could have recovered from those injuries. However, he indicated that the knife wounds could have resulted in complications that could have resulted in death. Dr. Coetzee-Khan further testified that these stab wounds resulted in a significant loss of blood and the multiple injuries could have resulted in death occurring much quicker when coupled with the shotgun wound. IV.

Jacob Tolchinsky [ 6 ] I will first examine the legal principles that may be relevant with respect to the charge against the Accused Jacob Tolchinsky, including general principles that relate to murder under s. 229 of the Criminal Code , particularly 229(c), and the defence of accident and how it applies to actus reus and mens rea . 1. Murder Under

Section 229 [ 7 ]

Section 229 of the Criminal Code provides as follows: 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; (

b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or (

c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being. [ 8 ] In order to be convicted of murder, an accused must have committed the actus reus of murder by voluntarily causing the death of the victim.

In addition, proving the mens rea of murder requires that an accused intended to cause death to the victim, pursuant to s. 229 (a)(i), or intended to cause bodily harm to the victim knowing that death was likely or being reckless as to whether death ensued, pursuant to s. 229 (a)(ii), or having a subjective foresight of death, pursuant to s. 229 (c). [ 9 ] More specifically, in order to convict the accused, Mr. Tolchinsky in this case, in accordance with s. 229(

c) the Crown must prove beyond a reasonable doubt the following ingredients:

(1) First, that Mr. Tolchinsky is the person or one of the persons who actually committed the offence; (2) that the offence occurred at the time and place set out in the indictment; (3) that he committed an unlawful act; (4) that Mr. Tolchinsky committed the unlawful act for an unlawful object (i.e., purpose); (5) that the unlawful act caused the death of Mr. Lewis; and (6) that Mr. Tolchinsky knew that the unlawful act was likely to cause the death of Mr. Lewis. [ 10 ] The Crown has indicated that they do not concede that ss. 229(a)(

i) and (ii) are not relevant to a determination of whether the accused in this case are guilty of murder. In this case, there is evidence regarding the defence of accident, and it is important to consider this evidence before going on to determine whether the Crown has proven beyond a reasonable doubt that Mr. Tolchinsky is guilty of murder or manslaughter. [ 11 ] As I will explain in the following paragraphs, the real issue with respect to the charge against Mr. Tolchinsky is whether the Crown has proven the mens rea for murder. Considering that, in this case, there is some evidence that Mr.

Tolchinsky’s actions in discharging the shotgun into Mr. Lewis’s back could have been an accident, I will first deal with the defence of accident. a. Defence of Accident [ 12 ] The only evidence relating to the accused’s defence of accident is found in the statement of Mr. Tolchinsky which he gave to the police. This evidence is also relevant with respect to the issue of the mens rea for murder, which I will discuss later. Therefore, I am reproducing the relevant portions of Mr. Tolchinsky’s statement verbatim where he speaks to the unreasonableness of shooting Mr. Lewis at 266-267: Sergeant Kuca: Yeah.

So she -- she says it just like that? They were told open the safe and then essentially her husband got shot right away? Mr. J. Tolchinsky: That doesn’t even make sense though. So what they -- he gets up, he was apparently gonna go open the safe and then he gets shot. Doesn’t make sense. Constable Dean: Yeah, that’s the way -- that’s the way it sounds. Mr. J. Tolchinsky: Cause if he’s going to get up and going to go open it, why would anybody shoot him? That would make -- that makes no sense. [ 13 ] Mr. Tolchinsky makes a number of comments regarding the word accident. For instance, the interviewing officer, Sgt.

Kuca, asked Mr. Tolchinsky why they were at the house and whether Mr. Lewis did something wrong or whether it had to do with what Mr. Lewis did for a living, to which Mr. Tolchinsky answered: “Yeah. Yeah. It was an accident” (at 539 of the transcript). A little later during the interview, Mr. Tolchinsky was asked how they knew that this guy had anything to which Mr. Tolchinsky answered: “No idea. But I really regret it, I regret this every day….I’m sorry” (at 543 of the transcript). Mr. Tolchinsky also stated the following when asked why he thought it was an accident: “Because it was an accident.

It went off; it shouldn’t have gone off” (at 575 of the transcript). [ 14 ] Mr. Tolchinsky explained that after he told Mr. Lewis to get on the ground and someone else who was with him told Mr. Lewis to open the safe, he then pulled the trigger by accident: Mr. J. Tolchinsky: I know the – the – the guy – when I told the guy to get on the ground, he didn’t wanna get on the ground. Sergeant Kuca: Right. Mr. J. Tolchinsky: And then – then as soon as somebody said to open the safe, he jumped up and started attacking us. Sergeant Kuca: Okay. Mr. J. Tolchinsky: And that’s when I let it off by accident.

Sergeant Kuca: So describe that to me, uhm, for someone who – like I think I know what you’re explaining, uhm, but I’m worried about people trying to suggest this is something it’s not, okay? So what I’m trying to explain is, when you say you let it off by accident, what specifically does that mean? Mr. J. Tolchinsky: It means I pulled the trigger by accident.

Sergeant Kuca: Okay. Uhm, it is because you got startled by his movement or – Mr. J. Tolchinsky: I don’t even know. I just know it happened, man? Sergeant Kuca: Okay. But – so when you say accident what’s going through your head at that moment? Are you thinking – Mr. J. Tolchinsky: ‘Oh fuck.’ That – Sergeant Kuca: Yeah. Like are you – when you say ‘oh fuck,’ do you mean like after the – it goes off? Or – are you thinking – Mr. J. Tolchinsky: Well, -- Sergeant Kuca: -- ‘oh fuck’ right before and then you pull the trigger? Mr. J. Tolchinsky: Yeah. Sergeant Kuca: Okay.

Uhm, so would you say – would you say that the reason you think you pulled the trigger, his – his actions? Mr. J. Tolchinsky: Yeah. Probably, yeah. Sergeant Kuca: Okay. Mr. J. Tolchinsky: I’ve already said way too much man. (At 577-579 of the transcript.) [ 15 ] Mr. Tolchinsky explained that everything happened quickly and provided details with respect to the shotgun: Sergeant Kuca: Oh. Probably happened fairly quick, eh? Mr. J. Tolchinsky: It was pretty quick, yeah. Sergeant Kuca: Okay Mr. J. Tolchinsky: Like personally, I think that the shotgun was cocked but I didn’t know it was cocked.

I think that’s what happened. Sergeant Kuca: Okay. Mr. J. Tolchinsky: And then… Sergeant Kuca: It probably didn’t take a lot of pressure on the trigger before. Mr. J. Tolchinsky: Not really, no. No. And I was like – like it wasn’t like a normal shell. It was like a bearing – ball bearings. (At 605-606 of the transcript.) [ 16 ] Mr. Tolchinsky also stated when he fired the shotgun, Mr. Lewis was hit in the back, but could not remember where exactly it had hit him though he remembered that Mr. Lewis had his back to him when it occurred (at 609 of the transcript). [ 17 ] In his statement, Mr.

Tolchinsky also spoke about the attitude of the other perpetrators after the events. He stated that everyone was very angry with him and that he had also received threats as a result (at 507-508 of the of the transcript). [ 18 ] The defence of “accident” can relate to both the actus reus and mens rea of an offence. In R v Barton , 2019 SCC 33 , the court stated at paras 186-187: The way in which the term "accident" is used in everyday parlance passes over some of the nuances that characterize the use of that term in the legal context.

As the authors of Manning, Mewett & Sankoff: Criminal Law explain, "[a]n accident is, in the popular and ordinary sense, a mishap or untoward event not expected or designed" (p. 653; see also E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. loose-leaf), at § 21:0010). But the term has a more specialized meaning in the criminal law context.

In particular, in this context, the term "accident" is used to signal one or both of the following: (1) that the act in question was involuntary (i.e., non- volitional), thereby negating the actus reus of the offence; or (2) that the accused did not have the requisite mens rea [...] With respect to the latter scenario, in assessing whether a claim of “accident” may negate mens rea in any particular case, it is obviously essential to consider what the relevant mens rea requirement is in the first place.

In carrying out this inquiry, it must be kept in mind that mens rea requirements vary and include, for example: (1) a subjective intention to bring about a prohibited consequence; (2) a subjective awareness of prohibited circumstances; and (3) objective fault. [citations omitted] i. Actus Reus [ 19 ] In this case, the defence argues that the defence of accident relates to the mens rea for murder and that Mr. Tolchinsky is only guilty of manslaughter. However, I will briefly discuss accident in the context of the actus reus .

Accident with respect to the actus reus is “involuntary act” accident and does not take into consideration the intention of an accused to kill, but focuses on whether the actions of the accused are in fact voluntary. In cases involving the discharge of a firearm, the involuntary act usually involves the pulling of the trigger. In some cases, a firearm may discharge when it is dropped on the ground or comes into contact with some other object or person. The facts of a case may involve a physical confrontation between the holder of a firearm and a victim which results in the firearm

discharging even though the holder of the firearm did not voluntarily pull the trigger. Where the holder of a firearm pulls the triggerbecause they make contact with the ground or some other object, this may also provide evidence of involuntary act accident: R vPrimeau 2017 QCCA 1394, R v McKenna, 2015 NBCA 32, aff’d 2015 SCC 63. [20] In this case, there is no evidence that Mr. Tolchinsky involuntarily pulled the trigger. The evidence provided in his statement,and reproduced above, is that Mr. Tolchinsky told Mr. Lewis to get on the ground and that he did not want to comply. Somebody said toopen the safe and Mr.

Lewis started attacking them and then Mr. Tolchinsky pulled the trigger. Mr. Tolchinsky agreed that he thought“oh fuck” in his mind just before he pulled the trigger and the actions of Mr. Lewis were the reason for pulling the trigger. There is nosuggestion in the evidence that Mr. Lewis touched Mr. Tolchinsky or did anything physically to make Mr. Tolchinsky pull the trigger.The pulling of the trigger was a response to the actions of Mr. Lewis and not an involuntary act in terms of actus reus. Mr. Tolchinskyclearly stated, and the autopsy report (entered as exhibit #16), confirms that Mr.

Lewis had his back to Mr. Tolchinsky when the shotgunwas discharged. Therefore, the evidence does not lead to a conclusion that the pulling of the trigger was an involuntary act and in thiscase the Crown has proven the actus reus of the offence of murder. ii. Mens Rea [21] As stated above, the defence of accident can also be raised with respect to the mens rea of an offence and in this case the mensrea for murder. There are many reported cases where the defence of accident relates to the death of a victim and the defence isdeterminative of whether the homicide is a murder or manslaughter.

In R v Parris, 2013 ONCA 515, the victim was stabbed numeroustimes and the court stated at paras 107-108: Accident in the sense of an unintended consequence, in this case at least, is nothing more than an argument that the appellant lacked themens rea for murder. This sense of accident can be serviced by proper instructions on the mens rea for murder, rather than on someseparate basis: Mathisen, at para. 73. Accident in the sense of an unintentional act raises a discrete defence.

The circumstances in which the accident occurs determine thequestion of liability for unlawful homicide and, if liability exists, whether the crime is murder or manslaughter: R. v. Tennant (1975), (ON CA), 23 C.C.C. (2d) 80 (Ont. C.A.), at p. 89.

If the appellant accidentally caused Malcolm’s death during thecourse of an unlawful act, and if the jury were satisfied beyond a reasonable doubt that the unlawful act was such that a reasonableperson would inevitably realize would subject another to the risk of at least some bodily harm, the appellant would be guilty ofmanslaughter: Tennant, at p. 96. [22] In McKenna, the victim owed the accused approximately $15,000 for renovation work and after a heavy day of drinking theaccused loaded a 16-gauge shotgun, attended at the victim’s residence, and asked for a personal identification number to withdrawmoney from the victim’s bank account.

When the accused arrived with the shotgun, an altercation ensued. Then, the victim grabbed thegun barrel and pulled it, which resulted in the shotgun being fired and the victim being shot in the chest, which caused his death.

Theaccused claimed that the discharge was accidental and that he only wished to intimidate the victim, which raised the defence of accident.The court in McKenna, discussed the importance of the defence of accidental discharge of the firearm with the mens rea for murder andstated at paras 26 and 28: Briefly put, the message which had to be conveyed was that an accident is an unintentional and unexpected occurrence that produces hurtor loss, and the defence of accident in this case related to the absence of intent required for a finding of murder. […] In R. v. O’Brien, 2003 NBCA 28, 257 N.B.R. (2d) 243 (N.B.

C.A.), Ryan J.A. cited Sutherland and Stevenson with approval andreiterated the importance of linking the defence of accident to the question of intent. He found misdirection: (

a) in the trial judge’s failureto tell the jury that if the defence of accident prevailed, that is, that the Crown did not disprove accident beyond a reasonable doubt, thatthe jury could convict the accused of manslaughter; and (

b) in the trial judge’s failure to relate any facts that would support the includedoffence of manslaughter (paras. 78-80 and 85). [23] The court in McKenna then went on to discuss how the lack of intent for murder would result in the accused still being foundguilty of homicide in the form of manslaughter: at para. 30. [24] In R v Shannon, 2014 BCCA 250, there was an altercation at a house party. The accused had a handgun which was fired,wounding the victim who later died of his injuries.

The Court of Appeal upheld the murder conviction and referred to the trial judge’sjury charge as correctly setting out the law regarding an accidental discharge of a firearm and proof of murder and manslaughter at para18: Ultimately, I am not of the view that there is any substance to the assertion that the trial judge erred in his charge about the use of theweapon. Although defence counsel did not make in his closing submission much reference to the defence of accident, the judge certainlydid. In my view, this was the most salient issue the jury had to consider in this case.

In the written portion of his charge, the judge stated: [173] The essential elements that the Crown must prove beyond a reasonable doubt in this case for the offence of manslaughter are thesame as the elements for second degree murder with one significant exception. The fifth element - that Mr. Shannon meant to cause thedeath or meant to cause bodily harm that he knew was likely to cause death and was reckless about whether or not it caused death - is notan essential element that must be proved to establish the offence of manslaughter. [174] There is evidence before you that raises the defence of accident.

The accused does not have to prove that this defence applies. TheCrown must prove beyond a reasonable doubt that this defence does not apply. If you are left with a reasonable doubt about whether thisdefence applies, the Crown has not proved its case beyond a reasonable doubt and therefore you must find Mr. Shannon not guilty ofmurder.

[…] [25] In the case at bar, there is evidence that the shooting of the deceased was an accident in the sense that Mr. Tolchinsky did notintend to kill the deceased as this would not allow for Mr. Lewis to open the safe which was required for the goal of robbing Mr. Lewis.When dealing with s. 229(a)(

i) and (ii) the mens rea requires that the Crown prove beyond a reasonable doubt that Mr. Tolchinskyintended to kill Mr. Lewis or intended to cause bodily harm to Mr.

Lewis that is likely to cause death or is reckless as to whether deathensues: see R v Aziga, 2023 ONCA 12, where Paciocco JA writing for the court explains at paras 24-26 that the intention to cause deathcan take two forms that is direct intention (direct purpose is to kill another) and oblique intention (where a person does not desire thedeath of the victim, but have accepted that the death of the victim is a virtually certain consequence of their act). [26] In this case, the statement of Mr. Tolchinsky clearly indicates that he did not want to kill Mr.

Lewis when he pulled the triggeror did not intend to cause him bodily harm that was likely to cause death, because they needed Mr. Lewis to open the safe. However, themens rea is determined at the time of the act of pulling the trigger and not after the shot was fired or even immediately after the shot wasfired. Mr. Tolchinsky clearly stated that the pulling of the trigger was an accident and that he regretted what occurred to Mr. Lewis. Inthe circumstances, it is certainly plausible that Mr. Tolchinsky did not intend to kill Mr.

Lewis at the time of the shooting or did notintend to cause bodily harm that was likely to cause death or was reckless as to death ensuing. Intending to cause death or bodily harm toMr. Lewis was counterintuitive to the goal of the robbery. However, considering that the Crown also relies on s. 229(

c) of the CriminalCode under which the intent to kill is not an element to prove the mens rea in this case and considering that, as I will explain, I find thats. 229(

c) is applicable here, I will not determine whether there was a direct or oblique intention neither whether he was reckless under s.229(a). I will now turn to the defence of accident when raised in the context of s. 229(c). iii. Defence of Accident and

Section 229(c) [27] In R v Belcourt, 2015 BCCA 126, the court at paras 98 and 101-104 discussed the appropriateness of the defence of accidentto a charge of murder in the context of s. 229(c): “Accident,” if accepted by the jury, clearly provided a defence under s. 229(a). However, “accident” is not, in its technical sense, adefence under s. 229(

c) because the intent to kill is not an element of the offence. Instead, an amalgam of purpose (“... for an unlawfulobject, does anything”) and subjective foresight and knowledge of the likelihood of death is substituted for the intent to kill. [...] The dual sense of accident in the criminal law is particularly problematic for the operation of s. 229(c).

In his submissions, Belcourtrelies in part on the decision of the Supreme Court of Canada in R v Hughes, (SCC), [1942] S.C.R. 517 (S.C.C.), wherethe Court held that the accidental discharge of a firearm by an accused during an armed robbery did not constitute murder under apredecessor provision to s. 229(c). Hughes was greatly influenced by its facts, which concerned whether the accused could have beensaid to have objectively foreseen that death was the likely result of a struggle between himself and the victim that culminated in theaccused’s firearm misfiring.

At the time, objective foresight constituted a culpable intention for murder. 102 Hughes illustrates that, in the context of s. 229(c), using the term accident is misleading because it conflates two questions: (i)whether the accidental discharge of a weapon would result in death (“accident” in the sense of an unintended action) and (ii) whether theaccused had subjective foresight that such a situation would likely result in death (“accident” in the sense of an unintended consequence).

Although the Supreme Court of Canada in Hughes phrased its analysis in such a way to make it seem as if it turned on “accident” in thesense of the accidental discharge of the firearm, it is more accurate to say that the entire transaction (from the start of the struggle to thedischarge of the firearm) involved a sufficiently remote chain of events that it could not be said, at the onset of the struggle, that Hughescould have foreseen that his actions would have resulted in the death of his victim.

The accidental firearm discharge was the mechanismof death, but it was not the fact that his weapon accidentally discharged that negated Hughes having the mens rea for murder; rather, itwas that the consequence of death was so remote that he could not have directed his mind to it. Put differently, the consequence ofHughes’ action (participating in a struggle) was so remote that it could not be said that he knew […] that death would result from hispursuing the course of action. The subjective foresight and knowledge of the likelihood of death is the minimum threshold mens rea for murder: see R. c.

Vaillancourt, (SCC), [1987] 2 S.C.R. 636 (S.C.C.) and R. v. Martineau, (SCC), [1990] 2 S.C.R. 633 (S.C.C.). Giventhe complexity of the elements to be proven under s. 229(

c) and the more sophisticated notion of intent that the jury must assess, it iscrucial that, in a charge under s. 229(c), the jury be directed (

i) to the facts that the accused knew at the time he was alleged to possessthe requisite mens rea for murder and (ii) to the manner in which knowledge of those facts might operate to negate the mens rea.[emphasis added] [28] In this case, the claim of accident by Mr. Tolchinsky does not eliminate the mens rea for murder, because the Crown isproceeding pursuant to s. 229(

c) and the mens rea does not require the Crown to prove the intention to kill or the intention to causebodily harm such that death is likely. However, in the case at bar, all of the facts including Mr. Tolchinsky’s statement that the dischargeof a firearm was accidental are important considerations in determining if Mr. Tolchinsky had a subjective belief that his actions ofholding a shotgun near the deceased’s back and discharging the weapon would likely cause death. b. Murder and Mens Rea Under

Section 229(c) [29] In R v Shand, 2011 ONCA 5, leave to appeal to SCC refused 34319 (19 January 2012), the Court explained the elements forproving murder contrary to s. 229(

c) of the Criminal Code at para. 188: As explained earlier, s. 229(

c) will be satisfied where the following elements are present: (

a) the accused must pursue an unlawful object other than to cause the death of the victim or bodily harm to the victim knowing that

death is likely; (

b) the unlawful object must itself be an indictable offence requiring mens rea ; (

c) in furtherance of the unlawful object, the accused must intentionally commit a dangerous act; (

d) the dangerous act must be distinct from the unlawful object, but as stated above, only in the sense that the unlawful object must be something other than the likelihood of death, which is the harm that is foreseen as a consequence of the dangerous act; (

e) the dangerous act must be a specific act, or a series of closely related acts, that in fact results in death, though the dangerous act need not itself constitute an offence; and (

f) when the dangerous act is committed, the accused must have subjective knowledge that death is likely to result. [emphasis added] [ 30 ] In the circumstances of this case, there is no dispute regarding the unlawful object. Mr.

Tolchinsky and the other three perpetrators, involved in this case, were involved in a home invasion robbery of the deceased’s residence which is an indictable offence contrary to ss. 344 , 348 and 348.1 of the Criminal Code . [ 31 ] When considering the dangerous act, it should not be framed too broadly and must be distinct from the unlawful object, although the dangerous act is being carried out to achieve the unlawful object: Shand , at paras 145-149 . The dangerous act or series of dangerous acts in this case, is that Mr.

Tolchinsky was holding a loaded shotgun within a short distance from the deceased’s back while the deceased was being escorted to another room in the Residence so that he could open a safe which they thought contained a number of firearms or diamonds. [ 32 ] In this case, does the dangerous act also include the fact that Mr. Tolchinsky pulled the trigger and the shotgun discharged into Mr. Lewis’s back? In Shand , there were two versions of how the discharge occurred.

One version was that the accused told the victim to stop moving and produced a small handgun, raised it towards the victim’s upper body and when the gun reach shoulder level it discharged and the victim fell to the ground. The other version of events was that the accused drew the gun and then used it to hit another individual and when the gun hit it, it discharged into the victim.

In Shand , the court discussed the importance of clearly defining the dangerous act and stated that the dangerous act must be a specific act that results in death. [ 33 ] In Shand , the court does not include the actual discharge of the firearm as being part of the dangerous act. This may be because there are two versions of events, and one could have resulted in the accidental discharge of a firearm that went to the nature of the conduct as to whether it was voluntary or involuntary. However, as I have already discussed there is no involuntary act of pulling the trigger in this case. Mr.

Tolchinsky’s pulling the trigger was not an accident in the form of an involuntary act. [ 34 ] In Belcourt , the killing again involved the discharge of a firearm and the court found that the instruction given by the trial judge and quoted at para 90 of the Court of Appeal decision was correct: […] If Belcourt knew at the time that he chambered a round that his act was likely to cause the death of someone, s. 229 (

c) applies even if he wanted to affect his object without causing death or bodily harm to any person. As a result, s. 229 (

c) applies even if the discharge of the firearm was accidental. In the circumstances of this case, the Crown must prove that Belcourt knew that his act of holding a loaded shotgun with his finger on the trigger and the safety off was likely to cause death if the gun discharged. [ 35 ] In R v Contois , 2020 MBCA 89 , three individuals attended at a residence to recover a stolen gold chain. Prior to attending at the residence one of the individuals, the accused, threatened to use a firearm and in fact brought a firearm to the residence.

Once at the residence the accused fired the firearm on three occasions and shot at a dog which resulted in the bullet ricocheting into the deceased’s body.

It was determined by the Court that the dangerous act was the use of a gun in an attempt to regain control of a home invasion robbery that had gone bad and that the act had been done in furtherance of the unlawful object, which was the robbery, and that the dangerous act had caused the deceased’s death : at para.17. [ 36 ] The Court in Contois , was of the opinion that the actual shooting was part of the dangerous act, because choosing to shoot at the dog in such close proximity to other people was in fact a very dangerous act, which, combined with the other factors, led to a “reasonable inference that the accused had the subjective foresight that death was likely to result”(at para 19). [ 37 ] In my view, the act of carrying a loaded shotgun with one’s finger on the trigger is an extremely dangerous act on its own.

Firing the shotgun makes the act even more dangerous. In the cases of Belcourt and Contois , the issue was not whether the pulling of the trigger was an involuntary act accident and, in those cases, the pulling of the trigger was part of the dangerous act. If the pulling of the trigger was not a voluntary act and there was an accident, perhaps the pulling of the trigger would not be part of the dangerous act, but that is not what occurred in this case.

While the deceased was being escorted, the shotgun discharged shooting the deceased in his mid- back on his spine causing the deceased’s death within a short period of time. There is no issue with respect to Mr. Tolchinsky’s actions in that he provided a statement to the police, which I accept, admitting to holding the shotgun and having his finger on the trigger and pulling the trigger as a result of the actions of Mr. Lewis. This resulted in the discharge of the weapon which caused the injuries to the deceased. Therefore, the dangerous act includes Mr. Tolchinsky pulling of the trigger.

This dangerous act is clearly distinct from the unlawful purpose and resulted in the death of the deceased Mr. Lewis. [ 38 ] It is the last element regarding the mens rea for murder under s. 229 (

c) which is the main issue to be determined with respect to Mr. Tolchinsky. In Shand , the court discussed the mens rea requirement under s. 229 (

c) and subjective knowledge. The court explained that the critical issue was whether the accused possessed the necessary mens rea at the time that he perpetrated the dangerous act. In that case, the court explained that it meant that if at the moment when the accused pulled out his gun and used it in the confined space he knew that it was likely to cause death, but did so anyway in pursuance of the theft, the mens rea component would be met. However, if the accused did not know at that time that it was likely to cause death, then the mens rea component would not be satisfied: at paras 194-195.

The court then emphasized at para 195 that it is important to determine the accused’s state of mind at that time and that this is about the accused’s subjective knowledge and what he actually knew and foresaw:

[...]It is critical that the appellant’s state of mind at this particular point in time is ascertained. That determination is a subjective one. The question is not what he ought to have known. The question is what he actually knew and foresaw. Surrounding facts, including the appellant’s prior conduct, can be considered to determine what the appellant actually knew.

What his state of mind may have been before or after committing the dangerous act is not determinative. [ 39 ] In Shand , the court was clear that when determining the accused’s subjective knowledge, it is important to look at surrounding facts that are relevant.

In a case involving a shooting, it could include whether the accused knows that the gun is loaded and whether the safety was on or off, whether the accused knows if people are present and where they are located, whether the accused is acting out of a fear or in a panic, whether the accused drew the gun or whether it was already drawn at that time, the reason why the gun was used and the conduct of the accused generally: at para 196. i.

Foresight or Knowledge [ 40 ] In R v Roks , 2011 ONCA 526 , a group of individuals, which included the accused entered into a plan to burn a building and recover the insurance for the burned building. One of the arsonists died during the set fire. At trial, the accused, who was involved in the planning of the fire but did not play a

part in the actual setting of the fire, was convicted of murder. The Court of Appeal substituted a conviction for manslaughter and found that the murder conviction was not reasonable in the circumstances. There was no direct evidence about the nature or extent of the appellant’s foresight of the likely consequences for the lives of others regarding the setting of the fire in question. The accused had not testified or made any other statements relating to others regarding that element. The court went on to discuss the foresight or knowledge component of the mens rea of murder under s. 229 (

c) and explained that foresight or knowledge is linked to the dangerous act component of the actus reus . It added that the mental element refers to knowledge of the consequences of the dangerous act, specifically the knowledge of a specific consequence which is the death of a human being and the knowledge of the prospect of the consequence: the likelihood that it will happen: at para 131. The court explained that knowledge or foresight under s. 229 (

c) refers to the actual or subjective knowledge of the accused and is very fact-specific. It also clarified that the knowledge must be concurrent with the dangerous act or acts: at para 132. ii. Likely to Cause Death [ 41 ] Several cases discussed the meaning of the subjective foreseeability of the likelihood of death under s. 229 (c). In Roks , the court explained at para 134 what it means to prove that the accused’s knowledge that “it is likely to cause death”: The extent of the risk of death occurring as a consequence of the dangerous act is defined by the term “likely”.

The accused must know that the death of a human being is a likely consequence of the dangerous act. The term “likely” refers to the probability of a consequence.

Proof that an accused was aware of the risk, possibility, danger or chance of death as a consequence of a dangerous act is inadequate to establish the mental or fault element in s. 229 (c): Shand , at paras. 153 and 209 ; Cooper , at p. 155. [emphasis in original] [ 42 ] In Roks , the court was clear at para 146 that proving subjective foreseeability of the likelihood of death is not met by just proving foresight of death or likelihood of harm, it needs more: Subjective foresight of death is not enough. Subjective foreseeability of harm or the likelihood of harm, or the likelihood of harm or death is not enough.

Nor is the stated conclusion “subjective knowledge that harm or death was a likely outcome of the fire”. What is essential is subjective foresight of the likelihood of death. [emphasis in original] See also Belcourt at paras 92 and 94, Shand at para 209 and R v Salah , 2015 ONCA 23 at para 190 . [ 43 ] In Salah , the court again dealt with the elements of murder under s. 229 (

c) of the Criminal Code . At para 191, it clarified that when determining the adequacy of the Crown’s proof with respect to the fault element, it is important for the trial judge not to “reason backwards from the fact somebody died to infer the accused knew the likelihood of such a consequence” at the time they committed the dangerous act. [ 44 ] Numerous cases have recognized the danger of a loaded firearm and the likelihood of death. In R v Weng , 2022 BCCA 332 , there was an altercation over an unpaid debt between the accused and two other individuals.

The accused brought a gun to the altercation and shot both of the individuals wounding one and killing the other. The court commented on the dangerousness of firearms and the likelihood that death would result from the shooting of an individual. It stated at para. 70: It may ordinarily be inferred that when a person fires a handgun from close range at a vital portion of the body of another person the shooter intended to kill that person: R. v. M.A.A ., 2012 BCCA 402 at para. 12 . As Justice Cory, then of the Ontario Court of Appeal, explained in Bains at 5: All firearms are designed to kill.

A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed — to cause death.

It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfill its design function and kill. An element of surprise arises only if death does not occur. Regarding the inherent danger of loaded firearms see also R v Chin , 2009 ABCA 226 at para 12 and R v Contois, 2019 MBQB 1 at para 86 , aff’d 2020 MBCA 89 . [ 45 ] The court in R v Contois, 2019 MBQB 1 discussed relevant evidence to consider when determining the mens rea under s. 229 (

c) and explained at para 90 what should be considered when determining the scope of the subjective knowledge of the accused: However, the dangerous nature of the robbery itself is in my opinion a relevant consideration which in the context of all of the facts

sheds light on the mental state of the appellant at the critical moment in time. It is the consideration of all of the facts, including those leading up to the commission of the dangerous act, that leads me to conclude beyond a reasonable doubt that the accused had the subjective knowledge that death was likely to result when he committed the dangerous act in furtherance of the unlawful conduct. iii.

Common Sense Inference [ 46 ] In this case the Crown asks that this court apply the common sense inference that a sane and sober person intends the reasonable and probable consequences of their acts. [ 47 ] In Roks , the court generally stated that knowledge or foresight can be determined in some cases without direct evidence and that inferences can be drawn to prove knowledge and foresight, but that a trier of fact must be cautious about inferring actual knowledge based entirely or substantially on the common sense inference: paras 142 and 148. [ 48 ] The common sense inference was used in R v Walle , 2012 SCC 41 , a case where there was an issue regarding the mental intent required to prove murder under s. 229 (a).

In this case, the issue with respect to the mens rea is not intention to kill, but whether the Crown has proven beyond a reasonable doubt that in his mind Mr. Tolchinsky had actual knowledge or foresight that his dangerous act was likely to cause death. Under this analysis, this has nothing to do with an accused’s intent to kill which was the basis for the common sense inference and must be distinguished in light of the different elements under s. 229 (c). The court must consider all of the evidence to determine what was in Mr. Tolchinsky’s mind when the gun discharged, shooting Mr. Lewis in the back. 2.

Analysis a. Evidence of Tolchinsky in Police Statement Regarding the Discharging of the Firearm [ 49 ] In his statement to the police, Mr. Tolchinsky admitted that he was the individual holding the gun when it went off and shot the deceased, Mr. Lewis, in the back. Mr. Tolchinsky indicated that it was an accident and that he really regretted it and has regretted it every day. I have already discussed that accident in this case does not relate to the actus reus . Mr. Tolchinsky may have regretted what occurred, but he clearly stated that he pulled the trigger.

Regretting that he pulled the trigger, after it occurred, does not mean that subjectively he did or did not have knowledge or foresight that death would likely result from his acts. [ 50 ] As stated in Shand , the court should consider the prior conduct of the accused. Mr. Tolchinsky stated to the police officer that “I know the guy when I told the guy to get on the ground, he didn’t want to get on the ground.” Mr. Tolchinsky stated that Mr. Lewis acted hesitantly and when he finally did get on the ground, Mr. Tolchinsky kicked him in the head.

He agreed with the police interviewer that he did so to intimidate Mr. Lewis and get his compliance. In Shand , the court stated that a trier of fact should consider whether the appellant was using the gun to press or force others to submit or using it in an attempt to extricate himself from danger. Clearly from Mr. Tolchinsky’s own statement, he wanted Mr. Lewis to comply when they were taking Mr. Lewis to the room to open the safe. He knew that Mr. Lewis had not been completely compliant and that he may not be completely compliant when they were taking him to the room with the safe. At this time, Mr.

Tolchinsky was holding a loaded shotgun at the back of Mr. Lewis in order to ensure that Mr. Lewis was compliant. This suggests that if Mr. Lewis did not comply or resisted, Mr. Tolchinsky would use the shotgun which is exactly what occurred. [ 51 ] There is also evidence in this case that Mr. Tolchinsky was familiar with firearms and shotguns. The interviewing officer asked Mr. Tolchinsky what kind of gun and he said it was a sawed-off 12 gauge. The interviewing officer then indicated that he was pretty familiar with how a sawed-off 12 gauge shotgun works. He asked Mr.

Tolchinsky if it was a pump action shotgun and Mr. Tolchinsky answered “no” that it was a lever. Mr. Tolchinsky also indicated that it was a single barrel shotgun and agreed that it was the type of shotgun where the rounds stayed in unless it was cracked open to release the shell. In addition, Mr. Tolchinsky discussed the type of shells that were being used and stated that it was not a normal shell and it was like a ball bearings shell. Mr. Tolchinsky further explained that when he stated that it was not a normal shell it was not a normal shell like you would buy at a store.

He indicated that it was like a homemade shell. Mr. Tolchinsky then indicated that there was birdshot and buckshot shells and that buckshot shells are a big round. Mr. Tolchinsky was clearly familiar with shotguns and shotgun ammunition, and the only reasonable inference is that he would be aware of the danger and damage that would occur if an individual was shot in the back at close range. His comments show that he did have this knowledge. Mr. Tolchinsky, in his interview with the police, indicated that in retrospect he believed that the shotgun was cocked, but did not know so at the time. Nonetheless, Mr.

Tolchinsky knew that the firearm was loaded, and was holding the shotgun a short distance away and directly pointed at Mr. Lewis’s back. [ 52 ] According to Mr. Tolchinsky, as soon as somebody said to open the safe, Mr. Lewis jumped up and started attacking them. And that’s when “I let it off by accident.” He stated that he pulled the trigger by accident. We have some direct indication of what was subjectively in the mind of Mr.

Tolchinsky when he pulled the trigger because he was asked by the officer what was going through his mind at the moment he pulled the trigger and he answered, “oh fuck.” He was asked by the officer if he was thinking “oh fuck” after the gun went off or whether he was thinking that right before he pulled the trigger and Mr. Tolchinsky agreed with the latte r. The officer then asked him whether he would say that the reason he pulled the trigger was caused by Mr. Lewis’ actions and Mr. Tolchinsky answered “yeah.

Probably, yeah.” Again, the only reasonable inference is that he was prepared to use the shotgun to get Mr. Lewis to comply and if he did not comply, he would shoot Mr. Lewis. [ 53 ] Because of Mr. Tolchinsky’s knowledge of shotguns and shotgun shells and the position of the shotgun and its distance from Mr. Lewis and his conduct at that time, the only reasonable inference that can be drawn is that he subjectively, in his mind, had actual knowledge or foresight that pulling the trigger on the shotgun would likely result in the death of Mr. Lewis. I find that there is no doubt that Mr.

Tolchinsky, in his mind, at the moment he pulled the trigger actually knew and had foresight that his actions would likely result in the death of Mr. Lewis. After considering all the evidence relating to the shooting in this case, any other inference is speculative and not a conceivable inference. [ 54 ] Therefore, I find that the Crown has proven beyond a reasonable doubt that Mr. Tolchinsky had the mens rea required for

murder pursuant to s. 229(

c) of the Criminal Code. b. First Degree Murder [55] The essential elements for the Crown to prove in a constructive first degree murder involving the underlying offence ofunlawful confinement, are set out in R v Magoon, 2018 SCC 14 at para 17: The applicable test is set out in R. v.

Harbottle, (SCC), [1993] 3 S.C.R. 306 (S.C.C.) , which requires that for an accusedto be convicted of first degree murder under s. 231(5) of the Criminal Code (then s. 214(5)), the Crown must establish beyond areasonable doubt that: (1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime; (2) theaccused was guilty of the murder of the victim; (3) the accused participated in the murder in such a manner that he was a substantialcause of the death of the victim; (4) there was no intervening act of another which resulted in the accused no longer being substantiallyconnected to the death of the victim; and (5) the crimes of domination and murder were part of the same transaction (p. 325). [56] In order to prove that there was unlawful or forcible confinement which is an enumerated offence under s. 231(5) there mustbe physical restraint and restraint by fear and the confinement must be unlawful.

Mr. Tolchinsky provided a voluntary statement to thepolice wherein he confessed to confining Mr. Lewis and his wife, Lavern Gold, by restraining them and not allowing them to move aboutaccording to their own desire. Mr. Tolchinsky admitted that he had Mr. Lewis and Ms. Gold lay on the ground and not let them leavetheir residence and then forcibly took Mr. Lewis to another room while holding a sawed-off shotgun pointed at Mr. Lewis’s back.

I notethat there is no requirement that the confinement be for a minimum period of time: R v Gervais, 2020 ABCA 221, leave to appeal to SCCrefused 39366 (11 February 2021).The Crown has proven beyond a reasonable doubt that the confinement was unlawful. [57] Mr. Tolchinsky also admitted to discharging the firearm such that the deceased was shot in the mid-back and died from thisinjury. There is no issue that the Crown has established beyond a reasonable doubt that Mr. Tolchinsky committed the offence ofunlawful confinement and that the crime of unlawful confinement was part of the same transaction as the murder.

Nor is there anyintervening act which results in Mr. Tolchinsky not being substantially connected to the death of the deceased. A conviction for firstdegree murder under s. 231(5) requires that there are aggravated circumstances which indicate a substantial and high degree ofblameworthiness to warrant the penalty for first degree murder.

The requirement that the accused participated in the murder such that hisactions were a substantial cause usually requires that the accused played an active role which would usually be a physical role: see R vFerrari, 2012 ONCA 399, R v McGregor, 2019 ONCA 307, Parris, R v Michaud, 2000 CarswellNB 69. The actions of Mr. Tolchinsky,in shooting Mr. Lewis in the back, are clearly a substantial cause of the death of the deceased and identity of this accused is not an issue.Therefore, as I have found that Mr. Tolchinsky is guilty of murder pursuant to s. 229(

c) of the Criminal Code. I also find that he is guiltyof first degree murder contrary to s. 231(5) of the Criminal Code. V. Richard Sikora 1. Identity: Has the Crown Proven Beyond a Reasonable Doubt that Mr. Sikorawas One of the Individuals Involved in the Home Invasion Robbery? [58] In this case there is no direct evidence with respect to the identity of the accused Mr. Sikora as a perpetrator. Ms. Gold, who isthe only surviving person present during the home invasion robbery and killing of the deceased, could not identify Mr. Sikora as one ofthe perpetrators. Nor did Mr.

Sikora confess to committing this crime or provide any other evidence of his involvement or non-involvement in the home invasion robbery or the killing of the deceased which, of course, is his right. [59] The Crown relies on circumstantial evidence to prove that Mr. Sikora was one of the perpetrators involved in the homeinvasion robbery of the Residence on November 26, 2018, beyond a reasonable doubt. That circumstantial evidence includes cell phonerecord evidence and DNA evidence. a.

Circumstantial Evidence [60] In cases of identity based on circumstantial evidence alone, a court must be satisfied beyond a reasonable doubt that the guiltof the accused is the only reasonable inference. What is a reasonable inference and must the reasonable inference be based on provenfacts? In the case of R v Villaroman, 2016 SCC 33, the Supreme Court discussed reasonable inferences and stated at paras 35-36: At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusionsbased on inferences drawn from proven facts” see R. v.

McIver, (ON CA), [1965] 2 O.R. 475 (Ont. C.A.), at p. 479, aff'dwithout discussion of this point (SCC), [1966] S.C.R. 254 (S.C.C.). However, that view is no longer accepted. Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4,[2009] 1 S.C.R. 104 (S.C.C.) , at para. 58; see also R. v. Pryce, 2014 BCCA 370, 361 B.C.A.C. 301 (B.C. C.A.) , at para. 10; R. v. Bui,2014 ONCA 614, 14 C.R. (7th) 149 (Ont. C.A.), at para. 28.

Requiring proven facts to support explanations other than guilt wrongly putsan obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by consideringall of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. Ifthere are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere factthat it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and commonsense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidencemay result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence of evidence,assessed logically, and in light of human experience and common sense. [emphasis added]

[ 61 ] The Supreme Court went on in Villaroman to describe the meaning of a “reasonable possibility” or “plausible theory” as opposed to “speculation” and stated at paras 37-38: When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt [..]I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused” [...] “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [italics in original; underlining mine; citations omitted] See also R v Dipnarine , 2014 ABCA 328 at paras 22 , 24 & 25. [ 62 ] In R v Tetreault , 2018 ABCA 397 the Court again discussed that the Crown need not disprove any possible alternative explanation and stated at para 32: We reject this argument.

Alternative inferences must be reasonable and rational, not just possible. If a postulated alternative

interpretation of the circumstances taken is found unreasonable or irrational, “the trier of fact is not bound to give effect to that alternative just because it is impossible to exclude it entirely” [...] [citations omitted] This principle was recently reiterated in R v Vernelus , 2022 SCC 53 . [ 63 ] In this case, the Crown relies on cell phone evidence, and DNA evidence to prove that Mr. Sikora was one of the four individuals who participated in the home invasion robbery at the Residence. i.

Cell Phone Evidence [ 64 ] The Crown has entered cell phone evidence in exhibits #24 and #26 and called two witnesses, David Mak and Wendy Black to explain the relevance of such evidence in proving that Mr. Sikora was one of the perpetrators of the robbery at the Residence on the morning of November 26, 2018. The evidence shows that on November 26, 2018 at approximately 5:33 a.m. eastern standard time, the cell number ending by 1382, belonging to Mr.

Tolchinsky, made brief contact with the number ending by 2462 and both cell phones connected to the cell towers related to the Residence. [ 65 ] Cell number ending by 2462 was also found to have called the number ending by 0449, using the cell tower related to the Residence. However, the phone number ending by 2462 is not registered to Mr. Sikora. No evidence was provided as to who this number was registered to on November 26, 2018. The Crown, in examination in chief of Maygan Feher who knew Mr.

Sikora, asked her if she recognized the number and she answered that “it was close to maybe an old one I had.” In a statement she gave to the police, Ms. Feher was asked by the police officer if she remembered the number ending by 2462 as being the one that she gave to Mr. Sikora and she answered: “I don’t think so”. Ms. Feher did testify that she gave an old cell phone of hers to Mr. Sikora for him to use, that she only ever gave away one cell phone and that it was the one to Mr. Sikora. She initially stated that she gave him that phone between June and October 2018, but later in cross-examination, Ms.

Feher agreed that her giving the phone to Mr. Sikora could have happened in 2017 or 2019. [ 66 ] In my view, the evidence suggesting that the phone number ending by 2462 is related to Mr. Sikora is extremely tenuous and provides little probative value with respect to my determination as to whether Mr. Sikora was one of the four perpetrators involved in the home invasion robbery at the Residence. ii. DNA Evidence [ 67 ] The Crown relies to a great degree on the DNA evidence in this case which has the DNA of the deceased, Mr. Lewis, and the DNA of Mr.

Sikora on a wooden handled folding knife found at the scene of the crime. In addition, there is DNA evidence of Mr. Sikora and Mr. Lewis on pieces of disposable style gloves, found in the vehicle that was found burning after the robbery. That vehicle was seen at the Residence just before the robbery and shooting, and was seen leaving the area just after the shooting. In addition, there was DNA of Mr. Sikora, on a cigarette butt found in the same vehicle. The defence brings up certain issues with respect of the continuity of the sample of Mr.

Sikora’s DNA and the trace amounts of DNA found on the knife and the pieces of the disposable plastic gloves which he claims lessen the probative value of the DNA evidence in this case. I will deal first with the issue of the continuity of the sample of blood taken from Mr. Sikora in order to obtain his DNA.

a) Continuity of DNA Evidence [ 68 ] In this case, a blood DNA sample was taken from Mr. Sikora. The defence argues that there are difficulties with the continuity of that DNA sample which lessens its probative value. Showing continuity of exhibits is not a legal requirement and the issue of continuity does not involve admissibility, but it goes to the weight of the evidence proffered.

Weak evidence of continuity and strong evidence of contamination can lower the probative value of DNA evidence, which may result in the Crown not being able to prove guilt beyond a reasonable doubt: see R v Ense , 2018 ONCJ 475 ; R v Adam , 2006 BCSC 1430 . [ 69 ] Generally, not every gap in continuity need to be explained by the Crown and such a gap will not be fatal to the Crown’s case, unless it is to such an extent that it raises a reasonable doubt.

There is no requirement that the Crown must produce each individual that had contact with evidence during the chain of transfer between the time the sample was taken and the time it was provided to the analyst. In the absence of evidence that the DNA sample was interfered with and contaminated before it came into the hands of the analyst, there

will be no concerns regarding the probative value of the evidence. The case law is clear that raising a reasonable doubt about the integrity of an exhibit requires something more than mere speculation that the exhibit might have been interfered with: Ense ; R v Aviles , 2015 ONSC 4580 , aff’d 2017 ONCA 629 . [ 70 ] Evidence of interference would include certain circumstances such as where a sealed exhibit was opened without there being documentation or evidence as to when or who opened the exhibit.

Evidence that the exhibit is not in the same condition as it was at the time of seizure can also provide evidence lowering the probative value of the exhibit. However, simply arguing that the exhibit might have or could have been interfered with, will not provide a basis for reducing the probative value of the evidence. [ 71 ] The Crown called Cpl. Christopher Nelson who provided evidence that he obtained the DNA blood sample from Mr. Sikora.

He further testified that as part of the procedure for taking DNA samples, he received a checklist and plastic bags and what he described as a Mylar bag to put the samples into. He indicated that taking a sample involved the use of gloves, a mask and bags which he sealed and marked. Cpl. Nelson was then shown exhibit #20, Mr. Sikora’s DNA sample, and Cpl. Nelson testified that he recognized the plastic bag and Mylar bag which are part of that exhibit. Cpl. Nelson read from the bag which had his signature and date and time.

He also indicated that his initials were on the bag, which is dated March 19, 2021 at 1640 hrs. Cpl. Nelson testified that after putting the DNA sample into the required bags he gave the sample to Cpl. Keith Carrier of the major crimes unit. Cpl. Nelson testified that he provided the sample to Cpl. Carrier in a boardroom of the Airdrie RCMP detachment. [ 72 ] Cpl. Keith Carrier testified that he was the primary investigator with respect to the case before the court and that he dealt with the DNA exhibit of Mr. Sikora. He testified that he received Richard Sikora’s DNA sample from Cst.

Nelson on March 19, 2021 and further testified that he then secured the sample in a temporary locker. He further testified that he was the only one that had a key to this locker. He described the exhibit as being in a plastic bag with a form on it that was initialed by Cpl. Nelson. There was evidence that there were three other samples in the same locker. Cpl. Carrier explained that he could differentiate Mr. Sikora’s sample, because of the time date, as well as the fact that it was initialed by the person who seized it and because different people seized each of the samples. Cpl.

Carrier testified that on April 4, 2021 at 15:40 hrs, he removed Mr. Sikora’s DNA sample from the locker and drove it to the Chestermere RCMP detachment. At that time, he gave the sample to Cst. Jared Carrier. He testified that nothing had been done with the exhibit prior to April 4, 2021. In examination in chief, exhibit 20, Mr. Sikora’s DNA sample was shown to Cpl. Carrier and he recognized the clear bag and brownbag and indicated that the new number on the bag would have been put there by the exhibit custodian. [ 73 ] Cst.

Jared Carrier testified that he was the exhibit manager on this file and he confirmed that on April 4, 2021 he received the sample from Cpl. Keith Carrier. He testified that he took custody of the sample because he was going to send it off to the lab for analysis. He indicated that he put it into a locker at the Chestermere RCMP detachment. He testified that the next day he packaged the DNA sample so that it could be shipped off to the laboratory. He indicated that on April 7, 2021 he shipped the package DNA sample to the laboratory. He said that he was the one who assigned the number PE 157 to Mr.

Sikora’s DNA sample. He indicated that by placing the sample into the database, he would receive a tag which had the number PE 157 and that he put the sticker on the sample when he received the sample from Cpl. Keith Carrier. He testified that Cpl. Carrier told him which sample belong to Mr. Sikora. He further indicated that he could determine who the samples were from because there were sheets for each sample which set out who took each sample, and he knew which officers took the samples from different individuals including Mr.

Sikora. [ 74 ] In cross-examination, defence counsel asked questions of the individuals who had continuity of Mr. Sikora’s DNA sample which suggested that there were a number of lockers. However, the officers clearly set out how they were able to distinguish Mr. Sikora’s sample and there was no indication in the evidence that there was any kind of a mix up or opportunity for the Mr. Sikora’s sample to be lost or contaminated in any way.

Defence counsel also questioned the witnesses with respect to when this sample was labelled PE 157 and the fact that it did not have a label when being provided to the first two officers. However, the officers explained they would know the sample because of who took it and the date it was taken and that they were able to differentiate between Mr. Sikora’s sample and any other samples. Defence counsel suggested to Cst. Carrier that the assignment of the number PE 157 to Mr. Sikora’s DNA sample was not in his notes. Cst.

Carrier agreed that he had nothing in his notes, but that he was relying on the electronic record created when the sample was placed into the database which produced the number PE 157. [ 75 ] In my view the continuity of Mr. Sikora’s DNA sample has been adequately explained by the police officers and there is no indication that there was any kind of contamination. In addition, there is no evidence of any kind of interference with the sample during its time with the RCMP prior to it being sent to the laboratory and after it being sent to the laboratory.

In any event, there is no evidence that shows that there has been contamination or interference with the sample at any time. As stated earlier, claiming that there might have been interference or might have been contamination is speculative and does not affect the probative value of DNA evidence here. In this case, there is no evidence which negatively affects the probative value of Mr. Sikora’s sample of blood and the DNA sample resulting from that blood sample.

b) Trace Amounts of DNA [ 76 ] During argument, counsel for Mr. Sikora referred to other forms of DNA on the wooden handled folding knife and pieces of the disposable gloves which he claims lessen the probative value of the DNA evidence in this case. [ 77 ] Robert Schimpf who testified in this trial and is an expert in DNA testing analysis,

interpretation and reporting of DNA profiles generated by STR-PCR methodology provided evidence in his testimony and in the DNA Lab Reports marked as exhibit #27 indicating on a number of occasions that there were trace amounts of DNA. The defence argues that these trace amounts indicate that other people had contact with the wooden handled knife and the pieces of the disposable style gloves and therefore that Mr. Sikora may have made contact with these gloves and the knife at another time besides when the robbery and killing took place in the Residence. [ 78 ] During his testimony, Mr.

Schimpf explained in great detail that when DNA is analysed, it is amplified so that comparisons can be made and that in some cases if the amount of DNA falls below a certain threshold, amplification will not be possible. As an example, Mr. Schimpf referred to the wooden handled knife, exhibit #7, and testified that DNA from the victim, Mr. Lewis and the DNA from Mr. Sikora were present on the knife. He described the DNA of Mr. Sikora as being the major component of DNA found on the

blunt edge of the blade tip. He also testified that there was a trace component of the DNA on the blunt edge of the blade tip that couldsuggest that the DNA was from two individuals, but this trace amount provided limited genetic information such that no meaningfulcomparison could be made with any samples. [79] Mr. Schimpf also explained that one of the pieces of disposable style gloves, exhibit #13, had the DNA of the victim Mr.Lewis on one side and the DNA of Mr. Sikora along with the DNA of Sarah Skye Johnson, on the other side. During the trial, Jade Gold,daughter of Ms.

Gold and step-daughter of the deceased, testified that Mr. Sikora and Sarah Johnson were together in pictures on socialmedia. In his evidence and report, Mr. Schimpf indicated that there was also a trace component on the glove which contained limitedgenetic information such that no meaningful comparison could be made with other samples and he would exclude this trace amount. [80] In cross examination of Mr. Schimpf by defence counsel, Mr. Schimpf was asked if the trace amount of DNA other than theDNA of Mr.

Sikora found on the blunt edge of the blade tip of the wooden handled knife could have been someone other than Mr.Sikora or Mr. Lewis. Mr. Schimpf answered that he could say it was not part of Mr. Sikora’s DNA, and he could not tell if it was part ofMr. Lewis’s DNA and reiterated that there were too few areas for him to compare it to any other profile. [81] During cross-examination, defence counsel continued to ask Mr. Schimpf if these trace amounts were consistent with anotherindividual making contact with either the wooden handled knife or the disposable style gloves and Mr.

Schimpf continued to answer thathe could not tell for sure whose DNA that would be from and could not make any comparisons to it. An example of such questioning isas follows: Q: That you’re seeing limited genetic profile from perhaps another individual because a third person held the knife with gloves on. A: That could be a possibility, but that doesn’t necessarily have to be that’s why there’s a trace component there. Q: Understood. A: And if I would be able to offer a little more, the trace components, you know, occur in our exhibits with a frequency because itdepends on the exhibit.

Like, has someone else handled it quite a while ago or is it a handling that’s incidental to the object, you know,rolling around in the back of a vehicle or a box or something like that and there’s -- there’s something else with DNA on it. But again it’sof such low points of comparison I can’t say anything about it. [82] During cross-examination, defence counsel, while discussing the pieces of the disposable style gloves, exhibit #13, suggestedto Mr. Schimpf that the mixture of DNA could involve Mr. Lewis and three, four or five individuals and Mr.

Schimpf answered that hewould have to look at his data to determine that. Mr. Schimpf went on to state that he would not say it could be any number ofcontributors. Again, defence counsel asked Mr. Schimpf whether he would limit the amount of contributors to Mr. Lewis and threeothers and again Mr. Schimpf indicated that he could not come to such a conclusion without going back and looking at his data and thathe would not be able to make a meaningful comparison. Again, while answering a suggestion from defence counsel that the tracecomponents were from another person other than Mr. Sikora or Mr. Lewis, Mr.

Schimpf answered that he could not make a comparisonbetween the trace amounts and anyone else and that it was not scientifically reliable to make a conclusion about what it means or whereit came from or who it could have come from. Mr.

Schimpf went on to state that “it’s a way of saying it would not be prudent, it wouldnot be appropriate, for me to do any kind of comparisons to the small amount of genetic information that a trace compromises.” [83] There is no doubt that the more individuals that have touched an object and left their DNA on it, the less probative the DNAevidence becomes with respect to who touched the object at a certain time. However, generally, trace components do not necessarilymean that others have touched the objects and left their DNA. According to the evidence in this case of Mr.

Schimpf, trace componentssimply provide no evidence as to whether other individuals have made up that trace component or whether it is consistent with otherDNA that has been determined in that area or on that object. [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. [86] In R v White, 2016 NSCA 20, the Crown entered certain exhibits containing blood from which the DNA of the victim and theaccused were present. On certain pieces of evidence there was also trace amounts of a third person’s DNA. Though decided in thecontext of an application for extension of time to appeal, the court stated at paras. 49-50: The outside bottom of Mr. White's right shoe had fragments of “mixed origin”.

The major DNA component was Mr. Walker’s. Theminor components were of “mixed profile” suggesting two other individuals. Owing to the “mixed profile” no meaningful comparisoncould be made. The right elbow of the sweater that Mr. White was wearing was of “mixed origin” with the DNA of at least threeindividuals. The major component was Mr. White’s blood; the minor component was Mr. Walker’s. There was a “trace component” of a

third individual’s DNA. But owing to limited genetic information no meaningful comparison could be made. Finally, the inside pocketsof Mr. White’s pants at the scene disclosed DNA of three individuals, the major component being Mr. White's blood. Owing to themixed nature of the minor component, no meaningful comparison could be made. Trace amounts of third party DNA at a crime scene where the overwhelming DNA was that of the deceased and Mr.

White, does notsuggest that a third party was involved in this horrendous crime. [87] In the circumstances of this case, the trace amounts of DNA which could not be used and which did not provide enoughgenetic information such that their origin could not be identified or determined, do not lessen the probative value of the major contributorand minor contributor who could be identified in this case which was Mr. Lewis and Mr. Sikora. Suggestions by the defence that thesetrace amounts suggest another person’s involvement were not confirmed by the expert witness Mr.

Schimpf and in the circumstances ofthis case are simply conjecture and do not suggest that Mr. Sikora was not present at the residence.

c) Probative Value of DNA Evidence [88] There is no doubt that DNA evidence can be very powerful evidence with respect to identity. The probability that someoneother than a person whose DNA matches that of a sample left on a certain item or in a certain place was the person who left the DNAsample is minuscule. Previous case law used coefficients of one in 1 million and that coefficient has steadily increased to numbers suchas one in 100 billion and in this case one in 2.2 quintillion and also in this case one in 820 quadrillion although with respect to exhibit #13the amount was one in 2.1 million.

Clearly this type of evidence shows that the person had contact with the item beyond a reasonabledoubt. However, in order for DNA evidence to be probative there must be other evidence which establishes that the accused was incontact with the object at the relevant time and place. According to the evidence of Mr. Schimpf, one cannot determine when DNA wasleft on an object.

One of the main issues in this case is whether the DNA evidence is strong enough to prove the issue of identificationbeyond a reasonable doubt. [89] Defence counsel have provided me with a number of cases that deal with the DNA evidence such as, R v McGinn, 2015ABQB 558, R v Mars, (ONCA), R v Wuschenny, 2018 ONSC 6765 and R v Strongeagle, 2023 ABCA 5. In all of thecases where the result was an acquittal, one item was found with the accused’s DNA and this is obviously less probative then when morethan one item has the accused’s DNA.

In addition, the items’ connection to the crime scene is also of the utmost importance. Lastly,DNA from other donors can also have an effect on the probative value of the DNA evidence. [90] In McGinn, there was DNA evidence of the accused on a neck warmer and evidence that t

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