R. v. Hall - Citation, 2018 MBPC 24

R. v. Hall - Citation: 2018 MBPC 24 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) for the Crown J. Myskiw - and – ) ) ) Jeremy Hall ) ) for the Accused M. Raffey ) ) Judgment delivered: July 4, 2018 MOAR, P.J. INTRODUCTION [ 1 ] This is the case of R. v. Jeremy Hall (“Hall”), who stands charged on a multi-count information with nine (9) offences stemming from an incident of August 16, 2017. The Crown has proceeded by way of Indictment and Hall has elected to be tried in the Provincial Court of Manitoba.

At the commencement of trial Hall entered not guilty pleas to each of the counts. [ 2 ] Originally, the matter had began with a co-accused, Theresa Rae Boubard, also facing a series of allegations from the same incident, however, the Crown directed a stay of proceedings to all of her counts at the outset of the second day of trial. [ 3 ] The following were filed by consent prior to the calling of any witnesses: • EXHIBIT 1 - Recognizance of Jeremy Hall dated May 9, 2017 • EXHIBIT 2 - Recognizance of Theresa Boubard dated February 6, 2016 • EXHIBIT 3 - Photo Booklet prepared by Constable C.

Sloan, Forensic Identification Services (RCMP) EVIDENCE KRISTEN DUBE [ 4 ] Kristen Dube (“Dube”) testified she did not want to be in court and only appeared because she was under subpoena and did not want to go to jail. [ 5 ] She advised the court that although she does not know Jeremy Hall (“Hall”) she did meet him on one occasion at the beginning of the summer. She described him as being a friend of someone she knew and someone who attended her home on the one occasion where he had a cigarette and left shortly thereafter.

She was able to identify Hall as sitting at counsel table. [ 6 ] Dube also acknowledged knowing Jason Letander (“Letander”) as an individual she had previously dated, Terry Courchene (“Courchene”), being a close friend, and Matthew Boyd (“Boyd”) who is her current boyfriend. With respect to Theresa Boubard, Dube indicated she knew her as “Tabby”. [ 7 ] With respect to the matters before the court, Dube testified Courchene and Tabby had been staying at her home for a few days leading up to the August 2017 incident.

She advised that prior to midnight on August 15, 2017, Courchene asked to borrow her 2012 Ford F150 truck in order to go to his father’s home to shower. She indicated that Courchene’s request to borrow the vehicle was not unusual and something he had done in the past. He and Tabby then left, with Courchene driving the vehicle. [ 8 ] A short time after Courchene left, Dube received a phone call from Letander, whose voice she recognized, inquiring about Courchene and her truck.

Shortly after that phone call ended, and less than an hour after she had initially loaned out her truck, Dube observed a silver Smart car pull into her driveway. [ 9 ] An individual she knew as Rocco was driving the vehicle and there was a passenger she knew as Joe Nation. These individuals also inquired as to the whereabouts of Courchene and her truck before then leaving, now with Boyd also being an occupant

of the Smart car. [ 10 ] At the time Boyd left her home, Dube described him as being loaded, drunk and on a hypothetical scale of one to ten, with ten being highly intoxicated, placed him at six out of ten. When pressed further on Boyd’s condition she described him as being coherent and able to speak. [ 11 ] At about 0500 hours Dube observed her truck pull into her driveway with Boyd now driving and Courchene, Tabby and Hall all being passengers. Dube indicated this was the first time that Hall had attended her home and confirmed he had not been there earlier in the evening.

Dube described Boyd as looking like he knew she would be mad at him and went further to describe him as being “tipsy” in terms of his level of sobriety. [ 12 ] As for the others, Dube pointed out Tabby at counsel table and advised the court that she did not appear to her to be either high or drunk. She described Courchene as being in rough shape and injured with what appeared to be a bullet hole in his right leg. Upon seeing this injury, Dube indicated she retrieved some peroxide, bandages and heated up a kitchen knife that she used to stop the bleeding.

In the course of providing treatment to Courchene, Dube indicated she did not see the bullet nor did she ever see Courchene remove a bullet. Other than indicating that “Punky” had shot him, Courchene did not describe how he received the injury. [ 13 ] With respect to Hall, Dube noted he was bleeding a little from his forehead and described him as having “a pretty good gash” which she cleaned using peroxide. In her view, Hall did not appear to be either high or drunk during their interaction but he did appear to her to have a concussion.

Hall did not indicate to her how he received the injury and in fact, Dube could not recall him say anything while he was at her home. [ 14 ] During the time these individuals were at her home, Dube indicated none of the individuals spoke of where they had been that evening nor did she see any of them with a weapon.

As for her truck, Dube did note there was a crib sized mattress and cardboard in the box that was not present prior to Courchene having borrowed her truck. [ 15 ] Courchene, Hall and Tabby eventually left the home on foot and as they were doing so, Dube suggested they should seek medical attention at the Pine Falls Hospital. [ 16 ] In cross-examination, Dube agreed she gave two separate statements to police and those occurred one day apart from one another. [ 17 ] Counsel suggested to Dube that on her second visit to police, she told police Boyd had offered to burn her truck.

Dube denied making such a comment and added that it was possible she may have said something to Boyd like “you should have burnt my truck” as she was angry with what had occurred. [ 18 ] Because of this incident, Dube indicated she essentially lost everything, including her job and her children. DWAYNE GUIMOND [ 19 ] Dwayne Guimond (“Guimond”) testified he also did not want to be in court testifying in this matter and advised the court he was a little scared to be doing so. [ 20 ] At the outset of his examination, Crown counsel identified a number of individuals and asked Guimond whether he knew any of them.

The first individual identified was Terry Courchene (“Courchene”) who Guimond acknowledged having known for his entire life. In terms of Jeremy Hall (“Hall”), Guimond stated he has known him for about twenty years and identified him in the body of the courtroom. With respect to Jason Letander (“Letander”), Guimond described him as being family and someone he has known his entire life. [ 21 ] Continuing on, Guimond described Tyler Canard (“Canard”) as being from the same reserve and indicated he has known him for a while.

Finally, as it relates to Charlie Epp (“Epp”) or Charlie Green (‘Green”), Guimond acknowledged knowing this individual having previously met him through friends. [ 22 ] In the case of each of the individuals, Guimond indicated he would be able to recognize each of them if he saw them. [ 23 ] In terms of the incident before the court, Guimond outlined the entirety of the events occurred at his residence on the Sagkeeng First Nation. On the night in question, he testified to being at home with his nephew Adrian (‘Adrian”) and a female friend by the name of Kimberly Graham (‘Graham”).

He had already gone to sleep in a back bedroom and was awaken in the early morning hours by Graham. He described her as being somewhat freaked out as she was telling him there were some individuals at the front door. During this interaction with Graham, he advised she had shown him a picture on her phone depicting four individuals, with one of the individuals holding a black twelve-gauge shotgun that had a pistol grip. [ 24 ] Despite seeing that image, Guimond testified he did not think much of what he saw and promptly fell back asleep.

His nephew Adrian, then woke him a second time and appeared to be quite afraid. He stated there were some people at the front door with a gun. [ 25 ] While he was speaking with his nephew, Guimond indicated he heard a gunshot at which time he got up from his bed and proceeded to shut off the lights in the bedroom. He then took his nephew into a closet and closed the door in an effort to hide. Prior to hiding he noted Graham, who was also in the bedroom, hide behind a television unit in the same bedroom.

At the time he entered the closet, Guimond advised he was not in possession of any type of weapon such as a gun, knife or any other weapon. [ 26 ] While in the closet, Guimond stated he could hear individuals walking around the house and those individuals soon came into the bedroom where he and the others were hiding. One of the individuals turned on the bedroom lights and despite his efforts to keep the

closet door closed; the closet door was forcibly opened. Prior to that occurring, Guimond recalled saying to his nephew “here we go.” [ 27 ] Once the closet door was opened, Guimond indicated he immediately saw the shotgun and grabbed onto it. He noted the shotgun was the same one he had seen in the picture shown to him by Graham and he proceeded to struggle for control of that gun with the person who was holding it. [ 28 ] He testified that he kind of recognized the person holding the shotgun as being Letander, an individual he knows.

He described the person, who he believed to be Letander, was wearing dark clothing and a balaclava over his face. When asked by Crown counsel how it was that he knew it was Letander, Guimond stated he just knew it was him. [ 29 ] At the time the struggle occurred, Guimond advised he had grabbed the shotgun by the barrel and the stock. During the struggle for the gun he recalled hearing a male voice say something like “let go of the gun Punky, we are not going to kill you” or something like that.

Guimond indicated that he believed there were four individuals present in the bedroom and they were all males. [ 30 ] As for the identity of the individuals involved, Guimond suggested they were Letander, Terry Courchene, Tyler Canard, Jeremy Hall and Brian Monkman. With respect to Canard, Guimond indicated he recognized his voice and even though he believes Canard was present, he did state he was not entirely confident of that assertion. [ 31 ] In terms of the male he believed to be Terry Courchene, Guimond described him as being masked and all he could see of him were his eyes.

That was similar to Jeremy Hall, who Guimond also indicated was masked but they did look eye to eye at one point. [ 32 ] During the course of the struggle for the gun, Guimond stated he was being stabbed, choked and getting hit in the head with a pipe wrench that was located on scene and photographed by police. Guimond suggested the person who was choking him might have been Brian Monkman. [ 33 ] With respect to Matthew Boyd, Guimond stated he was unsure if he saw him the evening of this incident and has only heard from others he was the driver of the truck in question.

He did acknowledge seeing a truck that evening as it was in the process of leaving his home. [ 34 ] During the struggle, Guimond described he was able to cock the gun and then pulled the trigger resulting in the gun discharging in the bedroom. Although he did not see if the bullet hit anyone, he did express the belief that it may have hit someone. He further stated the bullet hit the male at the closet door, then the bedroom door before then striking the wall located behind the door.

Upon the gun discharging, Guimond described all of the individuals, save for Hall, then fled the residence. [ 35 ] After the gun had discharged in the bedroom, Guimond stated he left the closet, picked up a pipe wrench from the ground and struck Hall with it. He elaborated further that upon picking up the pipe wrench, he threw it at Hall and believes it may have struck him in the forehead. [ 36 ] During the course of this incident, Guimond could not now recall what, if anything, else was being said by anyone.

He outlined that as the incident was occurring, things happened very quickly and he was scared throughout. [ 37 ] With respect to the shotgun, Guimond indicated he had seen that same gun a couple of evenings prior at the residence of Letander. [ 38 ] When asked about the identity of the individual who may have been shot, Guimond stated he could only say what he has heard subsequent to this incident occurring. At the time the gun was discharged in the bedroom, he described being face down in the struggle.

However, he did recall two shots being fired that evening. [ 39 ] When asked if these individuals took anything from his home, Guimond stated it appears that it was only beer from the fridge. [ 40 ] When the individuals fled the residence, Guimond described seeing a newer grey Ford truck driving away. He could not see who was driving the truck but believes Kristen owns the truck he saw. [ 41 ] During the course of this incident, Guimond outlined he was stabbed six times with a screwdriver but cannot say specifically who was responsible for inflicting those injuries.

He described the injuries as being painful and he did attend the Pine Falls Hospital for medical treatment. As far as he is aware, no one else received any injuries from this incident. [ 42 ] Once the individuals left his home, Guimond called the Royal Canadian Mounted Police (“RCMP”) and while awaiting their arrival described he was feeling overwhelmed and did pass out somewhat. [ 43 ] Guimond estimated the entirety of the incident lasted about fifteen minutes.

He advised he was not high on any drugs nor intoxicated by any substance on this evening. [ 44 ] In cross-examination, Guimond confirmed the experience he went through was a difficult one. He agreed Graham was the first person who brought the matter to his attention and believes she did have a photo on her phone that he looked at. He believes she may have deleted it. [ 45 ] He stated he could not recognize who was in that photo given the angle it was taken from and the fact it was dark outside.

He believed there might have been four people in the photo. [ 46 ] Guimond agreed that even after seeing this photo he was not overly concerned and did try to go back to sleep. His nephew then woke him saying, “uncle, there is really people at the door with a gun” and it was during this conversation he then heard a loud noise. [ 47 ] Guimond agreed with the suggestion of counsel that today he believes Jason Letander, Brian Monkman, Tyler Canard, Terry Courchene and Jeremy Hall were all involved. He also agreed that he did give a prior statement to police and in that statement told police

that Charlie Epp, also known as Chuck, was also involved. When it was suggested he had also mentioned Bernie Morrisseau as being involved to police, Guimond denied that occurred. [ 48 ] In terms of his prior statements, Guimond indicated he did review a recent statement he gave to police and although unsure whether he also gave police two other statements the day of the incident; he did not deny that occurred. He indicated he has not reviewed any statement he gave to police in August 2017. [ 49 ] Counsel showed Guimond a statement taken on August 16, 2017 at 10:51 hours by Constable George Walsh.

Upon reading the statement, he stated it did not refresh his memory and when suggested the statement may have been taken in his home he again indicated having no recollection of having provided it. Guimond was directed to page two of that statement and after reading it, he agreed that when asked by the officer who was involved the replies of Charlie Epp and Bernie Morrisseau are recorded. [ 50 ] He agreed he did name Bernie Morrisseau and further agreed that based on his viva voce evidence he was mistaken with that assertion.

He stated he did not recall making the statement in question and much of it was based on rumors. By the time noted on the statement, Guimond agreed he had a chance to speak with Graham and Adrian prior giving that statement. He then suggested the people named in the statement came from Graham and he was just going along with her. [ 51 ] Guimond also agreed that further in the statement he said that it could have also been Matt Boyd. When asked if he was involved, Guimond stated he was the driver.

As to whether Boyd may have also been in the house, Guimond stated that might have been possible. [ 52 ] Guimond agreed that since this incident occurred he has done some of his own investigating and he told that to police when they recently interviewed him. When it was pointed out that in his direct testimony he said he could not see who was driving, he agreed. [ 53 ] Further, at page seven of the statement, Guimond agreed he told police he was 70 percent certain of the three individuals involved.

He agreed that at the time he was not sure who was involved as this happened fast and he had his back to them for much of the incident. He agreed that in his second statement to police he was unsure who was involved. [ 54 ] The one thing he was sure of was the use of a shotgun that he had seen prior to this evening. [ 55 ] Guimond was asked about Graham and indicated he no longer associates with her as she is nothing but trouble. He also agreed she is a drug user.

KALEM HAMMERMUELLER [ 56 ] Constable Kalem Hammermueller (“Hammermueller”) is two-year member of the RCMP and at the time of the incident was stationed at the Pine Falls Powerview detachment. [ 57 ] Based on the notes he prepared, Hammermueller indicated his involvement in the matter began at 04:49 hours. He was called out for a call from an unknown female stating there was a home invasion in progress at 1394 North Shore Road. The caller stated a Chuck Green was trying to break into a residence and was possibly in possession of a gun.

Dispatch advised they could hear what sounded like a disturbance occurring in the background and the voice of a male yelling. [ 58 ] As a result, Hammermueller advised he attended to the detachment and on route continued to receive updates on this call. One of the updates came from an individual identified as Adrian Swampy who advised there was an unknown male in the home with a shotgun and two other males had just run out of the home. Adrian advised the individuals may have been wearing balaclavas, were all unknown to him and were threatening to kill his uncle, Dwayne Guimond.

The last update received from Swampy indicated the individuals had fled towards Pine Falls in a grey Ford pick up truck. [ 59 ] While on route to that call, Hammermueller advised there was a second home invasion incident reported as occurring involving Chuck Green. Instead of attending to the original call at 1394 North Shore Road, the officers went to 17 Cedar to check on the second location as Chuck Green had again been named as possibly been involved. [ 60 ] They arrived on Cedar at 05:47 hours and proceeded to empty the residence of the occupants.

All of the individuals were removed and once identified there was no Chuck Green noted to be present. In speaking with the occupants they all denied calling police and denied any knowledge of any home invasion occurring. None of the individuals had any injuries, no firearm was located and there was no indication a firearm had been discharged in that residence. [ 61 ] Once it was determined no one was in danger at that location, at 0603 hours Hammermueller left that residence and attended to the residence of Dwayne Guimond at 1394 North Shore Road.

The officer advised he is familiar with 1394 North Shore Road as being the residence of Dwayne Guimond, a person he knows as “Punky”, and has dealt with him on a number of prior occasions. [ 62 ] On arrival at 0613 hours, Hammermueller and Staff Sargeant Jenvenne (“Jenvenne”) attend the home and observed the front glass door was blown open and there was glass all over the place. He entered the home and observed a male who identified himself as Adrian Swampy, a female identified as Kimberly Graham and the victim Dwayne Guimond, who is also known as Punky.

All three individuals were located in the kitchen and were asked to attend into the living room while the rest of the house was cleared for officer safety. [ 63 ] Upon going down the hallway, Hammermueller noted a shotgun shell in the hallway and evidence of a shotgun shell having been fired into a closet door that went through into a hallway closet. Upon examining Guimond, he noted him to have a laceration on the back of his head that was bleeding. Hammermueller did not note any signs of intoxication with Guimond nor did he note such on the other occupants of the home.

[ 64 ] While on scene, there were a number of names provided to Hammermueller as possibly having been involved but he did not take a statement from Graham or Guimond at that time. The first four names mentioned were Bernard Morrisseau, Charles Epp aka Chuck Green, Randall Henderson and Jason Letander. [ 65 ] While Hammermueller was still on scene, Constable Nelson (“Nelson”) arrived and took a statement from Graham. Once the statement was completed, Hammermueller then spoke with Graham who advised him she did not believe Guimond was the initial target of the attack.

She advised overhearing Jason Letander say to Guimond during the incident they were not there for him, they were not going to kill him. She believed someone else was the target of these individuals and identified that individual to Hammermueller. [ 66 ] While Guimond was being transported to the hospital, Hammermueller contacted a number of entities within the RCMP about this incident, including Major Crimes. The information at that time suggested there was a grey Ford F150 involved and based on a prior traffic stop.

Constable Young (“Young”) had made, it was believed the vehicle in question might be registered to Kristen Dube. [ 67 ] From the scene, Hammermueller and Young attended to speak with the individual identified as being the possible target, located him at his home address on the South Shore and took him into custody for his own protection. [ 68 ] While on route to the residence of this individual, Hammermueller observed a Grey F150 truck parked near the residence of Letander.

Sargeant Anderson was then contacted and asked to watch that vehicle in case it were to leave that location. [ 69 ] While Hammermueller and Young were dealing with Graham, they observed the grey F150 pass their location at which time they initiated a high-risk traffic stop. Two individuals were removed from the vehicle without incident and identified as being Boyd, the driver, and Dube who was the passenger and registered owner of the vehicle.

Both were taken into custody and the vehicle was seized so it could be searched. [ 70 ] While this was occurring, Hammermueller stated he and Young were advised a second vehicle, being a Smart car, had left the Letander residence and was travelling on First Old Road. They attended that location and once again initiated a high-risk traffic stop at the intersection of Highway 11 and Pine Road, just outside of Powerview Pine Falls. [ 71 ] Three occupants were located within the Smart vehicle with the driver identified as being a Destiny.

Police located a male known to them as Letander in the passenger seat and a second male known to them as Hall in the trunk area of this vehicle. A subsequent search of the car turned up nothing of substance. [ 72 ] Both males were given their notice of arrest and transported to the Pine Falls Powerview detachment. Prior to leaving the scene, Hammermueller observed Hall was wearing a hat and had blood coming from his forehead area.

Once back at the detachment, Hammermueller again looked at Hall and noted he had a laceration to his forehead area with blood still coming from the area of the laceration. [ 73 ] At the detachment, Hammermueller formally arrested Letander and noted he had no visible injuries. He was permitted an opportunity to speak with counsel and at its conclusion indicated he was satisfied with that process. [ 74 ] On January 4, 2018, Hammermueller advised he was approached by Dwayne Guimond who advised he wished to speak with the lead investigator as he had some further information on this matter.

It was on that basis Guimond provided a further audio and videotaped statement to police and later provided a voluntary DNA sample to assist in this investigation. [ 75 ] Further to this matter, Hammermueller advised that on the day prior to his testimony, he did locate and seize a pistol grip guard during the arrest of Matthew Boyd on this matter. The item was located on Boyd during the search incident to his arrest.

On the item located it reads Knoxx Spetoff Stock Kit and the item is used when the standard stock of a gun is replaced. [ 76 ] In the course of cross-examination, Hammermueller agreed he was the officer who first noted the Ford F150 vehicle at the residence of Letander and voiced that to other members. He estimated the distance between the residence of Letander and Dube to be a little over five kilometers. [ 77 ] As for the initial suspects identified, Hammermueller agreed those were Bernard Morrisseau, Charles Epp, Randall Henderson and Jason Letander.

Of that group, Hammermueller agreed that only Letander has been arrested to date. With respect to Bernard Morrisseau and Randall Henderson, he indicated that based on the investigation conducted, they are no longer considered as suspects. [ 78 ] At the time of the traffic stop of the Smart car, Hammermueller agreed Hall had not yet been determined to be a suspect but rather was arrested because he was in the vehicle with Letander.

However, statements taken later did identify Hall as a suspect in this matter. [ 79 ] Hammermueller agreed he has recently spoke with Graham about this trial and she has provided additional information on this matter in a statement on an unrelated matter.

Hammermueller also agreed that based on the continuing investigation of this matter, further information has been obtained naming other potential suspects. [ 80 ] As to the information that Graham may have taken a photo of the suspects outside of the residence, Hammermueller did speak with her about the existence of that photo and she denied the existence of any such photo being on her phone. He did examine her phone and was unable to locate any such photo. [ 81 ] In terms of Matthew Boyd, although he was arrested on the date of the incident, Hammermueller was advised no charges were laid at that time.

However, he was arrested yesterday based on the additional information that was provided by Dwayne Guimond and it was during that arrest the pistol grip cap was located. [ 82 ] Hammermueller agreed he had previously seen a photo of Letander holding a shotgun. He advised that without seeing that photo again he is unable to say whether the pistol grip recently seized can be seen in that photo.

JACLYN YOUNG [ 83 ] Constable Jaclyn Young (“Young”) is a six-year member of the RCMP and at the time of this incident was stationed at the Powerview Pine Falls detachment. [ 84 ] Young advised she was involved in the investigation of an alleged home invasion that occurred in August 2017 and during the course of that investigation, she became involved in the arrest of various individuals, including Matthew Boyd. [ 85 ] Young testified she observed a grey Ford F150 that was travelling eastbound towards Powerview Pine Falls.

This was a vehicle that had been previously been identified as a potential suspect vehicle and was a vehicle Young advised she had previous involvement. [ 86 ] She described initiating the emergency lights and siren on the police vehicle but the suspect vehicle continued to drive for a brief time before turning into a residence. Once the vehicle stopped, Young commanded the male driver and female passenger to exit the vehicle with the loud speaker.

She described this was a high-risk traffic stop and both she and her partner had their service weapons drawn. [ 87 ] Both individuals from the vehicle were laid prone on the roadway and arrested without incident. Young advised the male was known to her as Matthew Boyd and when she approached him she noted him to have an odour of liquor on his breath, red flushed face, red eyes and he appeared to be a bit groggy. [ 88 ] The female was known to her as Kristen Dube and she was placed under arrest at the scene.

Dube was handcuffed and turned over to Constable Walsh for transport back to the detachment. [ 89 ] Young indicated she and her partner remained on scene in order to deal with the Ford F150 and its transport back to the detachment. While awaiting the arrival of the tow truck, Young formally arrested Boyd and advised no other communication occurred between them. [ 90 ] Young confirmed she then became involved in a second high-risk traffic stop where Letander and Hall were both arrested.

Young testified she knew both of these individuals from prior incidents and with respect to Letander, she described him as being highly intoxicated with an overwhelming odour of liquor on his breath, red face and he could hardly stand on his own feet. [ 91 ] As for Hall, she described he was removed from the trunk of the vehicle and was noted to have an overwhelming odour of liquor on his breath, a red flushed face and paste coming out of his mouth. He also had a large fresh injury to his forehead area under his ball cap.

Hall did not advise her how he got that injury. [ 92 ] Once at the detachment, Young was advised the owner of the truck, Kristen Dube, had consented to a search being conducted. Young conducted the search with Dube being present throughout. During this time Dube provided some information on Terry Courchene and showed a picture from her phone of Letander holding a black shotgun. [ 93 ] In the rear passenger seat area of the truck, Young noted the presence of a red substance she believed to be blood.

She did swab the area noted and has sent that in for analysis, with the results still pending. [ 94 ] In terms of Dube and Boyd, she did not note any injuries on them or that they were bleeding from any area. [ 95 ] In cross-examination, Young indicated she did note the injury on Hall but was unsure whether she photographed that injury. Once Hall had been arrested, Young confirmed it was she who transported him to the detachment.

She could not recall if Hall was ever taken for medical treatment of the injury. [ 96 ] In terms of Kimberly Graham, Young confirmed she did interact with her early in the investigation and did not photograph anything on her phone nor on the phone of Letander. As for the phone of Dube, Young could not recall if she photographed anything contained on that phone. [ 97 ] With respect to the arrest of Boyd, Young could not recall what clothing he was wearing at the time but did recall he had sunglasses on his head.

She was of the opinion he was impaired that was based on the odour of liquor on his breath, red eyes, flushed face and slurred speech. She agreed with counsel that Boyd should have been charged with impaired driving but that was not pursued at the time given the other issues in this case that needed to be dealt with. [ 98 ] Given the comments made by Dube, Young did attend her home and the area behind the home.

There she located the burnt remains of what may have been gloves as well as other items like a bag and cloth that may have been used for swabbing. [ 99 ] At the time when she first encountered Dube and Boyd, Young confirmed she arrested both for assault with a weapon. Her unit transported Boyd and he was permitted an opportunity to speak with counsel. [ 100 ] Young confirmed a decision was later made not to pursue those charges which was a decision made by the Major Crimes Unit who were directing the investigation.

CODY NELSON [ 101 ] Constable Cody Nelson (“Nelson”) testified he has been a member of the RCMP for just under one year and has been at the Powerview Pine Falls detachment for that period.

[ 102 ] Nelson indicated on February 7, 2018 he and his partner, Constable Jadyk (“Jadyk”), were dispatched to a possible home invasion at a residence on the Sagkeeng First Nation. Given the nature of the call, Nelson and his partner attended the location in full gear, which included both a Carbine rifle and service pistol. [ 103 ] On arrival, Nelson noted the outer door of the residence had no glass window and the inner door was wide open. From the front step area he could see directly into the house and observed it was in disarray with a table flipped over.

He also noted a hole in the wall as well as a black shotgun that was leaning against a counter. [ 104 ] From the front door, Nelson announced police presence and received no reply. He then observed an unknown individual walk in front of the hole in the wall and despite asking the person to present, that person did not comply. [ 105 ] Nelson and his partner entered the home and again announced their presence. Again, there was no response and while in the home, a male was observed trying to exit through the front door.

Nelson and his partner pointed their firearms at the male and ordered him to show his hands, which he did. The male, later identified as Joshua Courchene, was proned onto the floor and was cooperative thereafter. [ 106 ] A second male then stuck his hands out of doorway and exited a room. He also was proned onto the floor and identified as Kenneth Beaulieu.

Jadyk proceeded to clear the remainder of the home and no one else was located. [ 107 ] Nelson then seized the gun, had it photographed and the five photographs taken were entered collectively as Exhibit 4. [ 108 ] In cross-examination, Nelson indicated he was unsure whose house he had entered. He did not believe it was owned by Kenneth Beaulieu but rather understood it was owned by individuals who are currently in-custody and therefore it should have been empty. [ 109 ] Nelson was asked if he knew Herbert Morrisseau or Bernie Morrisseau and stated he has heard the names but has not met either.

He advised he recently met Tyler Canard and knows Chuck Green as Charles Epp. As far as he knows, none of those four individuals has any tie to this residence. [ 110 ] Although Nelson did not interview Kenneth Beaulieu, he was aware that Beaulieu had stated he bought the gun that was seized from Punky, a name he knows is used for Dwayne Guimond. [ 111 ] Nelson acknowledged he also knows an individual named Rocco whose real name is Randall Henderson.

He is also aware of who Brian Monkman is and suggested that he may be living at the Jason Letander residence. [ 112 ] In re-examination Nelson clarified the safety to the gun was off, there were three bullets in the magazine but none in the chamber.

KALEM HANS HAMMERMUELLER [ 113 ] Constable Hammermueller was recalled, with the consent of defence counsel, as there have been further developments in the case since the last time he testified. [ 114 ] Hammermueller confirmed he had previously arrested Matthew Boyd and during a search incident to his arrest located what is described as a Knoxx Pistol Grip Butt Plate that was filed as Exhibit 5. [ 115 ] Hammermueller was shown a picture of a gun (Photo 4, Exhibit 4) that had been seized by Constable Nelson and acknowledged he has had the chance to examine that gun.

He advised that when he did so, he used the item seized from Boyd and it fit into the butt of the weapon seized by Nelson. He suggested it also matched the gun. [ 116 ] With respect to Photo 3, Exhibit 4, Hammermueller indicted it showed where the missing piece attached and in Photo 4, Exhibit 4 showed what the gun looked like with the missing piece inserted. [ 117 ] In cross-examination, Hammermueller was asked about the residence where Kenneth Beaulieu was arrested and although he did not attend that incident, he thought the home did belong to the Beaulieu family.

DWAYNE GUIMOND [ 118 ] Dwayne Guimond was also recalled with the consent of defence counsel. [ 119 ] Guimond confirmed he had previously testified that during an incident in his home, there was a struggle over the shotgun and he was able to discharge it during the struggle. [ 120 ] Guimond was shown Photo 1, Exhibit 4 and confirmed that was the gun involved in the struggle.

He stated the gun was not his and when asked about the missing butt plate shown in Photo 3, Exhibit 4, Guimond could not offer any information as to what may have happened with it. [ 121 ] In cross-examination, Guimond confirmed he was sure the gun shown is the one that he struggled over. He indicated he had seen that gun prior to the incident that occurred in his bedroom and was able to see it at the time as the struggle occurred for about ten minutes in lighted conditions. [ 122 ] He advised he had seen that same gun at the Letander residence on a prior occasion but did not see it again until the incident in

his home. [ 123 ] Guimond acknowledged knowing Kenneth Beaulieu and described him as being an enemy of his. Guimond was advised that when Kenneth Beaulieu was arrested with that gun he told police that it was Guimond who had sold it to him. Guimond denied that assertion and he indicated it was Beaulieu who had previously tried to sell him a gun.

He went on to say that Beaulieu and a Bradley Courchene had attended his residence on one occasion to sell him a gun and although he was not sure why they came to see him, he told them he was not interested. [ 124 ] At the time of the incident before the court, Guimond confirmed he was not in possession of any weapons and denied the suggestion the knife and bat located were his. He did agree he had previously owned guns but no longer does as he is prohibited.

He denied he ever used a weapon in the commission of an offence and did acknowledge he had a prior criminal record for unsafe storage, unsafe transportation, careless use of a firearm and unauthorized possession of a firearm. [ 125 ] Guimond again reiterated the only weapons he had on the night in question were his hands. The bat and knife located by police were not his and he did not know how they got where they were located. In this regard, he believed he did tell police that none of those items belonged to him.

KIMBERLY GRAHAM [ 126 ] Kimberly Graham (“Graham”) testified she is 39 years of age and is currently resident in Province of Manitoba. [ 127 ] On the night of August 15, 2017, she was at the Dwayne Guimond residence on the north shore of Sagkeeng along with Adrian Swampy (“Adrian”). They were all hanging out together and she indicated no drug or alcohol use occurred. [ 128 ] At 0445 hours she was awakened by Adrian who told her somebody was at the door. She asked him who it was and was told that it was a guy.

Graham got up and went across the hall into the spare bedroom to look out the window at the front door area. She could see two people dressed in all black with masks covering their faces and holding either a bat or a gun.

She did not recognize either of the males. [ 129 ] When shown photo 1, Exhibit 4 she acknowledged that was the gun used in this case and it was the same gun she had previously seen at the Letander residence. [ 130 ] Around the time she was looking outside, Graham indicated she got an unknown phone number as well as a text from Chuck Green saying “yo, want to make something real quick.” Graham stated she did not know what he meant by that text and had not talked to Green for a while.

She would not say they were friends but she did know him. [ 131 ] Graham then went to wake Guimond and when she did, saw that he and Adrian hid in the closet and she covered her head with a towel and hid behind an entertainment unit. As such, she was not able to see what, if anything, happened in the bedroom. [ 132 ] Graham said she initially heard the individuals knocking and then heard the front door glass break. She then heard footsteps and someone saying, “Punky where are you”.

The individuals then came into the bedroom and she heard the closet door opened. [ 133 ] She could then hear a commotion occurring including the sound of punching and what she said were other gross noises. While things were happening in the bedroom, Graham heard a voice and stated she is “pretty positive” it was the voice of Letander who she described as being an ex-boyfriend. She also heard another voice say something like “don’t worry we are not here for you” and thought that was being directed at Guimond.

When she heard that comment, Graham indicated she became very scared as in her mind she thought that they might be there for her. [ 134 ] To Graham, it sounded like there were a lot of people in the bedroom. At some point, she heard a gun discharge and went deaf for a moment. She thought Guimond may have been shot but later came to know it was Terry Courchene who was shot. After the gun discharged, the next thing she heard was Guimond yelling to call the police.

In that regard, Graham indicated she had already called the police prior to the males getting into the house and may have left the phone line open during this incident. [ 135 ] Graham indicated she could not say for sure Hall was one of those involved in this matter. She also indicated she did not want to be present and testifying. [ 136 ] Graham was shown Photo 17, Exhibit 3 and confirmed that was the bedroom where this occurred.

Photo 5, Exhibit 3 was also shown and she indicated it showed the broken glass at the front door as well as the damage that occurred. [ 137 ] Other than hearing the voice of Letander, Graham was unable to identify any the individuals who may have been involved based on what she saw or heard that evening. She was unable to say why the individuals may have been after her.

In terms of weapons, Graham stated she did not have a weapon and certainly did not have a gun. [ 138 ] She was sure about the time of the incident as she received the text from Chuck at 0444 hours, which was about the time the individuals were knocking on the front door. [ 139 ] As a result of this incident, she saw that Punky, or Dwayne Guimond, had been stabbed six times in the right side and the back of his head had been split open by a pipe wrench she owned.

Graham identified the wrench in question as shown in Photo 7, Exhibit 3 and stated each time Guimond was struck with the wrench she could hear the adjusting nob on the wrench click. [ 140 ] Graham was unsure how many people arrived at the residence other than the two she initially saw at the front door and was unsure how many people may have been in the bedroom.

[ 141 ] It was because of this incident that Graham indicated she moved out of the community. [ 142 ] In cross-examination, Graham agreed this was a difficult experience and she has now had a chance to go back and think about some of the things that were unusual in the lead up. She agreed she found it odd that Kristen Dube was interested where Guimond was, as did Guimond.

She herself does not speak with Dube and does not consider her a friend. [ 143 ] Graham confirmed in her direct-examination she thought the males were holding a gun at the door but agreed in her statement to police she told them they were holding either a bat or a gun. [ 144 ] Graham was asked about a photo she may have taken that night and indicated she did not take one. She did, on an earlier occasion, take a picture of Guimond and his nephew out on the deck but took no other photos. She became aware of this supposed photo while at the hospital and is not sure where Punky got that.

She offered he had been “clunked” on the head during this matter and she told this to police. [ 145 ] Graham agreed she did wake up Punky that morning but found it very difficult to do as she believes he may have taken some of his pain medication prior to going to sleep.

She was able to get him up on one occasion but he simply walked to the end of the end of the bed, sat down and promptly fell back to sleep. [ 146 ] During this incident, Graham did not believe Punky had any weapons other than tools that may have been laying about in the bedroom. [ 147 ] After leaving the hospital, Graham said she and Punky returned to his residence and began to clean up. She described he was very angry and was blaming her for what had happened. She cleaned the front area where the glass was broken but did not attend the back area.

As such, she did not see a knife in the bathroom sink nor did she see the bat that was beside the knife. [ 148 ] As for police, Graham stated it took them a while to attend and estimated it may have been an hour or so. Prior to their arrival, she agreed she and Punky had a chance to talk about who they believed was responsible for this incident. [ 149 ] Graham acknowledged she told police she was almost 100 percent sure Jay Letander and Chuck Green were involved. She also agreed Punky told her that Bernie Morrisseau and Rocco were the other two involved in this incident.

With that, Graham stated she did not really know who was involved. [ 150 ] While they were at the hospital, Graham agreed Guimond changed who it was that he believed was involved. She did hear the name of Jeremy Hall later in an update by the officers on scene. She was aware Hall and Letander had been picked up together and that Hall was arrested for something unrelated. [ 151 ] Graham confirmed she did tell police the incident might have also involved a Gena Astonovic who had threatened Graham in the past for allegedly stealing her drugs.

Graham described Astonovic as being a local drug dealer. [ 152 ] Lastly, Graham confirmed she did not see Hall that night and did not hear his name or his voice. MATTHEW BOYD [ 153 ] Matthew Boyd (“Boyd”) affirmed and indicated that he is 25 years of age and is from the Sagkeeng First Nation. [ 154 ] On the night in question, Boyd indicated he was just hanging out at the residence of Kristen Dube, his then girlfriend. It was initially just the two of them relaxing and he was having a drink.

Boyd estimated he had about an eight pack of beer that evening and described himself as being a social drinker. [ 155 ] Later, Terry Courchene and his girlfriend Tabitha attended and stayed for a few drinks. After awhile Courchene and his girlfriend left the residence with Courchene driving Dube’ Ford F150 truck. Boyd indicated that when they left neither appeared to be injured nor bleeding. He estimated they left around 01:00 hours. [ 156 ] Boyd indicated he and Dube continued to lay around her residence until about 02:00 hours when he left to get Dube’ truck.

In that regard, he left in a Smart car with an individual by the name of Rocco, as well as a female, and they began driving around the north shore area of Sagkeeng looking for the truck. [ 157 ] They eventually located the truck driving towards them and Boyd waved it to stop. In the truck at the time were Terry Courchene, his girlfriend and Jeremy Hall who he pointed out as being in the courtroom. They exited the truck and after a brief conversation, Boyd got into the driver seat of the truck and sat there.

The three individuals then asked if he would give them a ride, which he agreed to do. [ 158 ] They initially went to a house at the end of the North Shore Road and one of the individuals got out and knocked on the door. No one answered and they all left that location and attended to a second residence. Boyd estimated it was around 03:00 hours at this time. [ 159 ] At this second location, Boyd stated the three passengers got out and proceeded to knock on the door of the residence.

Boyd indicated he could see one door and noted they did gain entrance into this home. [ 160 ] When the individuals got out of the truck, Boyd saw they grabbed something from the box of the truck but he was not sure what it was. Upon reviewing his statement made to police, Boyd clarified he saw one of them grab a gun but was not sure what type of gun it was. Having said, that he did indicate the gun was one he had seen on a prior occasion at the Jay Letander residence. [ 161 ] During this time, Boyd maintained he stayed in the vehicle throughout and after some time heard loud thumps that he knew were

gunshots. He believed he heard two or three shots with the first shot occurring about ten minutes after the others had left the truck. The second shot occurred soon after the first. [ 162 ] The first person Boyd saw leave the residence was Terry’s girlfriend followed about five minutes later by the two males who essentially came out together. He was not sure which of the individuals had the gun but did note that it was brought into the backseat of the truck.

He also noted the three individuals were now carrying Bud Light beers. [ 163 ] Once everyone was back into the truck, Boyd proceeded to return to Dube’ residence with the three passengers. They stopped briefly along the roadway before then continuing onto the Dube residence. [ 164 ] Boyd estimated they arrived at the Dube residence somewhere between 0400 and 0500 hours. Once there he observed that Terry Courchene, who was seated in the rear passenger seat, had an injury to his leg that was bleeding.

In terms of Jeremy Hall, Boyd did not note him to have injuries. [ 165 ] At the Dube residence, Kristen bandaged the leg of Terry Courchene before then kicking everyone out of her home. During the time they were all at the Dube residence, Boyd indicated Jeremy Hall did not say anything at all. [ 166 ] Boyd was asked how he knew Jeremy and simply stated he does not know him. He knew him to be one of Terry’s friends and this was the first time he had met him. That said, he did acknowledge having seen him around Sagkeeng previously but had never hung around with him.

He was able to identify Jeremy Hall in the courtroom and stated he may have been the one that grabbed the gun earlier that morning. Boyd confirmed he has no dispute with Hall and does not owe him any money or the like. [ 167 ] In terms of what the three individuals may have been wearing, Boyd was unsure.

He indicated he drove the three to the house in question as they asked him to and none of them, including Jeremy Hall, told him what happened inside the house. [ 168 ] On their return to Dube’s residence, Boyd was unsure what happened with the gun he had earlier seen. [ 169 ] Boyd agreed he was arrested in January 2018 and was in possession of the piece that does fit into the stock of that gun.

He advised he had that item for about four to five weeks and had previously seen the gun at the residence of Jay Letander. [ 170 ] Boyd indicated he did not want to testify in these proceedings but chose too as he wanted to tell his side of the story. [ 171 ] In cross-examination, Boyd confirmed he had not personally met Hall before this day nor did he talk to him about happened in the house. [ 172 ] On the night in question, he agreed he was with Kristen and was drinking. He further agreed he had an eight pack of beer, felt that he was drunk and on a scale of one to ten, placed himself at about a six.

When he spoke to police he denied he spoke to them about whether he was drunk or not and suggested it was Kristen who spoke to the police. [ 173 ] He confirmed that as of today, he continues to be in a relationship with Kristen and denied he has spoken to her about what happened. [ 174 ] Boyd agreed that Terry did leave with Kristen’s vehicle and he understood they were going to the store. They left around 0100 hours and it was later the blond girl and Rocco attended the home.

He indicated he did not know Rocco’s name was Randall Henderson. [ 175 ] At the time he got into the vehicle with Rocco, Boyd understood Rocco had spoken to Kristen and he was to go and look for the Ford F150. He also understood that Rocco knew the vehicle was on the north shore and it was not long after they left Kristen’s place that they located the Ford F150. [ 176 ] Boyd was not sure what time he may have left to look for the vehicle and initially stated it was somewhere around 02:00, 03:30 or 04:00 hours.

He ultimately agreed it might have been around 02:00 hours that he left. [ 177 ] When he located the truck, the three occupants got out as it was Boyd’s intention to take the vehicle back to Kristen’s. He at the time had no intention to drive them anywhere but did so when they asked him for a ride. Up until this time, he had not seen any firearm. [ 178 ] It was suggested to Boyd that Terry Courchene was his friend, a suggestion he agreed was correct.

However, when it was suggested he would protect him, Boyd indicated that was not true. [ 179 ] He did say that it was because Terry Courchene had asked for a ride that he transported the three individuals. He indicated Courchene was directing him where to drive and at the first home Boyd estimated they were there for maybe five minutes. He did not see any of them enter that house. [ 180 ] Terry Courchene then directed him to the second home and Boyd estimated he was there for about twenty minutes. While at that location, Boyd confirmed he stayed in the truck the entire time.

He did not see anyone enter the home but did hear two gunshots. At the time of hearing the second shot, Boyd was not sure if the three individuals may have already been outside of the house but agreed in his statement to police he did not say they were outside. [ 181 ] When the three individuals returned to the truck, Boyd noted Terry Courchene was now injured and was unsure if Jeremy Hall was injured or not. [ 182 ] Boyd did not confirm the suggestion that police were trying to convince him the individuals involved were wearing masks.

His prior statement was put to him and Boyd agreed he told police the individuals were not wearing masks. Once everyone was back in the vehicle, Boyd indicated he did not see anyone bring the firearm into the vehicle. [ 183 ] It was also suggested that when he gave his statement to police, Boyd was worried whether he was going to be charged or not.

Boyd responded that he was not too sure what was to happen but is sure what happened on the night in question and is therefore not too worried. [ 184 ] He did tell Kristen what had happened and denied that he offered to burn the vehicle. [ 185 ] Boyd was asked about a number of individuals and started by saying he does not know Rocco. It was suggested he knew Randall Henderson that Boyd qualified as not knowing him personally.

He agreed he does know Jay Letander and that he was the owner of the firearm in this case. [ 186 ] After Terry Courchene was bandaged up, counsel suggested to Boyd he then burnt the materials used in order to protect him. Boyd denied this and stated that he did not burn anything that day and did not burn any materials to protect Terry Courchene. [ 187 ] Boyd agreed he was arrested on January 24, 2018 and charged with numerous offences arising out of this matter. He also agreed he had the butt plate for the gun on him and that police seized it.

He admitted he had previously touched the gun in question but that occurred some four to five weeks prior to his arrest. However, it was put to him he had told police he had shot the gun about a week prior to his arrest and he agreed that was said to police. [ 188 ] Boyd testified he has never owned a gun but has handled one in the past. He also admitted he did post a picture of a gun on his social media site [Exhibit 6]. [ 189 ] It was suggested to Boyd, and agreed, that he does know Kenneth Beaulieu. He described him as the father of his niece but denied the assertion Beaulieu was a relative of his.

He continued by denying he knows Bernie Morrisseau or Joe Nation. He did acknowledge knowing Brian Monkman as someone who stays with Jay Letander and agreed Brian Monkman is a friend but denied he would protect him. [ 190 ] As to the observation of Tabitha coming out with beers, Boyd agreed none were located at Kristen’s home. He denied the suggestion that no beers were ever brought into the vehicle by anyone. [ 191 ] Finally, it was suggested to Boyd he was now testifying because he feels trapped by his earlier statement. He denied that suggestion and stated he is not prepared to lie while giving his evidence.

CROWN POSITION [ 192 ] The Crown is seeking convictions be entered on counts 1, 2, 4, 5, 6, 7 and 8 of the Information and acknowledges the evidence is insufficient to support convictions on counts 3 and 9.

With respect to count eight, the Crown relies on the recognizance dated May 9, 2017 that has been filed as Exhibit 1 in the cause. [ 193 ] In terms of the evidence, it is only Dwayne Guimond who can be said to be an eyewitness to the events as the Kim Graham testified she had placed a cloth over her head and could not see what was occurring in the bedroom. [ 194 ] Guimond testified he has known Jeremy Hall for a long time and despite the evidence showing the individuals were masked, he advised the court he still recognized him as one of the individuals who was present during this incident.

In support of the position Hall was one of the individuals involved, the Crown points to the testimony of Kristen Dube who testified that at the time Hall left her residence he was uninjured but when he returned he now had a gash to his forehead. That gash, the Crown suggests, is supportive of Guimond’s testimony he struck Hall with a pipe wrench. [ 195 ] Further support comes in the testimony of Constable Young who arrested Hall in the company of Jason Letander, another individual who has been implicated, and noted Hall had a gash.

Finally, there is the testimony of Matthew Boyd who testified he picked up Hall on the roadway and took him to two different residences that morning. At the last stop, Boyd observed Hall grab a shotgun, approach a residence and shortly thereafter heard two shots. [ 196 ] Even though Boyd did not say he saw the individuals enter the residence, the two shots he heard is consistent with the testimony of Guimond and is consistent with the photographs filed in the cause.

Boyd’s testimony that he saw Terry Courchene with a gash in his leg is also consistent with him having been shot, as was suggested to have occurred. [ 197 ] Although the Crown acknowledges Boyd did not observe any injury to the head of Hall when he returned to the vehicle, he suggests counsel for the accused did not seriously challenge the essence of Boyd’s testimony. Any suggestion Boyd was looking for a benefit by testifying is, the Crown suggests, unsupported by the evidence before the court. [ 198 ] A further common theme is the presence of the Ford F150 truck that Hall has been linked to.

He was, according to Boyd, a passenger in that vehicle that attended the two residences. Guimond testified he saw a grey Ford F150 leaving his residence that evening and Kristen Dube confirmed when her truck returned to her residence, all of the individuals were noted to be inside. [ 199 ] The Crown suggests absolute certainty is not required for a conviction and this is not a complex case given the evidence of Dwayne Guimond, Kristen Dube, Matthew Boyd and the arresting officers.

He suggests none of the witness’ credibility was shaken to any degree such that their evidence cannot be accepted by the court. [ 200 ] Even if Hall was not the person wielding the gun he is certainly a party to the offences as he went into the residence and while Guimond was struggling for the gun, he described being assaulted by the others who were present. On that basis, the Crown suggests Hall is a party to what occurred in the residence.

DEFENCE POSITION [201] Defence counsel takes the position this is a Vetrovec case referencing the Supreme Court of Canada case cited as R. v. Vetrovec, (SCC), [1982] S.C.J. No. 40. [202] Before addressing that issue, counsel reminds the court of the frailty of eyewitness evidence, particularly as it relates to theidentification of Jeremy Hall by Guimond. He acknowledges Guimond stated he was sure Hall was present but only saw his eyes andHall did not saying during the course of the incident before the court.

Counsel suggests it is clear Guimond suffered physical injuries andalthough he may think Hall was one of the individuals present that does not meet the threshold that is required. [203] Counsel notes Guimond stated (Transcript of Proceedings, January 24, 2018, at page 45, line 21) he maybe (emphasis added) hitthe male on his forehead. The fact hours later Hall shows up with a cut to his forehead is something the Crown is asking the court toplace value on but that is problematic, as that could have happened from an alternate event.

Kristen Dube description of the injury is asmall cut and Constable Young did not photograph the injury to assist the court. [204] As for the testimony of Matthew Boyd, counsel suggests he is the only person who potentially ties Hall to any incident thatnight. The court heard from Constable Hammermueller there may have been a second home invasion in the community that morning.Boyd was unable to identify the house he took the individuals to nor indicate where he drove other than generally.

Counsel suggests thatperhaps there was another incident that morning and states that is a possibility for the court to consider. [205] In addition, the testimony of Boyd creates timing issues. The evidence of Kimberly Graham sets out the incident occurringsomewhere around 0444 hours. Upon looking at the testimony of Boyd he says he left home about 0100 hours and in adding up the restof his time estimates he would have been back home, at the earliest, seventy minutes after the incident and at the latest, ninety-fiveminutes, which would place the time as being 0335 hours.

That creates issues with the suggestion the individuals had been at theGuimond residence and leaves a lot time where Hall may have been injured elsewhere. [206] Further concerns with the evidence of Boyd is that he says he got into a car with individuals he did not even know, which is veryodd. He, according to the evidence of Kristen Dube, was loaded when he got into that car.

When Hall got back into the truck, Boydsuggested a crowbar might have struck him. [207] That leaves the court with the concern that where one would expect corroboration there is none. [208] Kimberly Graham stated the first time she heard the name Jeremy Hall was when she and Guimond were at the hospital. It wasthere that Graham was speaking to a police officer and the officer mentioned the name of Jeremy Hall.

In addition, she advised the courtGuimond had taken sleeping pills that evening which should be a consideration for the court. [209] Constable Young described Matthew Boyd as being evasive and saying at varying times, he did not know or could notremember when being asked questions, including whether anyone went into the house.

Boyd denied saying anything about thepossibility of burning the truck or assisting Terry Courchene in any way, yet he admitted giving him a pair of shoes that evening. [210] When Boyd was asked about the arrest of Ken Beaulieu, he denied Beaulieu was family to him yet he is the father of Boyd’sniece. Upon his own arrest for the incident before the court, a search of his person resulted in a missing part of the gun, alleged to havebeen used in this matter, being found on his person. Further, that same gun was located at the arrest of Ken Beaulieu who again is thefather of Boyd’s niece.

Counsel suggests that ought to concern the court and make it the reluctant to accept the testimony of a witnesswho is motivated to fabricate and protect himself. [211] In the case of Vetrovec, supra, counsel suggested the presence of corroboration is key to such witnesses. Boyd has taken anunusual position relating to his relation with Ken Beaulieu and Randall Henderson.

Boyd was clear that Jeremy Hall was not his friend.He testified the individuals returned to the vehicle with beer however, none was seen and police located none. [212] Constable Hammermueller testified when he passed the Jason Letander home, he noted a grey Ford F150 in the driveway, whichwas a stop not mentioned by Boyd in the course of his testimony. [213] Kimberly Graham was clear in her testimony she did not have any reason to believe Jeremy Hall was involved and did not seehis face.

She did not say when the names of those potentially involved changed other than it occurred while they were at the hospital. [214] A further problem for the Crown is there have been more people identified as being potential suspects in this case than couldhave been involved according to the evidence of Dwayne Guimond. CROWN REPLY [215] The Crown takes the positon this is not a Vetrovec type of case as his understanding is that would involve unsupportedtestimony by an unsavory witness. He asks how is Boyd an unsavory witness given his lack of record.

Counsel suggests the fact he mayhave been the driver that morning does not make him unsavory. [216] The Crown suggests unsavory is an individual with a long criminal record that contains concerning criminal convictions andwho is entrenched in the criminal world. He suggests Boyd’s evidence is supported by the evidence of others, particularly theobservations of Kristen Dube and the testimony of Dwayne Guimond on the issues of injuries. [217] As to the suggestion Boyd was evasive or trying to protect others, Crown suggests there is no evidence to support that

contention. In fact, the testimony of Boyd is he would not do something to protect the individuals he has acknowledged knowing. [218] As for his demeanour, Crown counsel agreed Boyd was slow to answer and was not thrilled to have been called as a witness,given he is also charged in this matter. That being so, he did answer each question posed to him and his evidence should be accepted. THE LAW [219] The accused begins with the presumption of innocence. As this is a criminal trial, the Crown carries the burden of proof on thestandard of proof beyond a reasonable doubt. [220] In R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320, the court recognized the presumption of innocence and thestandard of proof required for a conviction are intertwined such that to rebut the presumption of innocence, the Crown must prove itscase to that of a reasonable person. Doubt “cannot be based on sympathy or prejudice”, nor can it “be imaginary or frivolous.” Theprobable guilt of an accused is insufficient to ground a conviction.

With that, the Crown is not required to prove its case “to an absolutecertainty.” If, after an examination of all the evidence, you are sure of guilt, the Crown has discharged its onus. [221] The case of R. v. Vetrovec, (SCC), [1982] S.C.J. No. 40 dealt with the issue of corroboration in the context ofthe testimony of a co-accused.

After a thorough review of the common law and early English case law, the Supreme Court of Canadanoted at page 8 “…the testimony of some accomplices may be untrustworthy” but “there is nothing inherent in the evidence of anaccomplice which automatically renders him untrustworthy.” [222] Mr.

Justice Dickson for the court stated at page 12: “I would hold that there is no special category for ‘accomplices.” An accomplice is to be treated like any other witness testifying at acriminal trial and the judge’s conduct, if he chooses to give his opinion, is governed by the general rules.” [223] With that, the court added, “What may be appropriate, however, in some circumstances, is a clear and sharp warning to attract the attention of the juror to the risksof adopting, without more, the evidence of the witness.” [224] This line of thinking is applicable to what have been termed as unsavoury witnesses including, amongst others, individuals suchas jailhouse informants, accomplices and those witnesses who suffer from distinct blemishes of character. [225] What the court in Vetrovec essentially did was confirm that strict corroboration of the testimony of “questionable individuals” byother third party evidence that implicates an accused before the court is no longer required.

The decision on whether to give a Vetrovecwarning lies solely within the discretion of the trial judge and is to be based on the trier of fact considering “the credibility ortrustworthiness of the witness’s testimony and the importance of the evidence to the Crown’s case” (R. v. Chandra,

(2005) ABCA 186 atpara. 10). ANALYSIS [226] The case before this court is certainly very serious and presented with a uniqueness in that the investigation by the RoyalCanadian Mounted Police was and is an ongoing investigation.

Given that issue, further developments in the investigation occurred priorto the continuation date set for this matter that necessitated, with the agreement of both counsel, the recall of certain witnesses. [227] One of the main witnesses in the prosecution of Jeremy Hall is Matthew Boyd, who was recently arrested and charged in thismatter and is therefore a co-accused in these proceedings. There is no doubt his testimony is important to the case presented by theCrown and I agree before the court is prepared to give that testimony any weight, what he says is to have occurred ought to be carefullyscrutinized.

Given that assessment, I am of the view the court need not determine whether he is a true Vetrovec type of witness whorequires anything beyond the due care I acknowledge is required. [228] With that, the details of the events that occurred in the early morning hours of August 16, 2017 come mainly from the testimonyof Dwayne Guimond, testimony that was largely unchallenged. [229] He advised that on this date he along with his nephew, Adrian, and Kimberly were all in the residence.

They had been togetherthroughout the early evening hours and he denied there had been any use of illicit drugs or alcohol. [230] He had gone to sleep in a back bedroom and at some point was awoken by Kimberly Graham who told him there wereindividuals at the front door and apparently showed him a picture where one of the individuals was holding a black twelve gaugeshotgun. Guimond did not react to that other than to simply fall back to sleep. [231] He was awoken a second time, this time by his nephew Adrian, who also told Guimond there were some people at the front doorwith a gun.

While his nephew was telling him this, Guimond indicated he heard a gun shot and quickly got up to shut the bedroom lightoff. He then took his nephew into the bedroom closet and held the door closed as he listened to what was happening in his home. [232] He heard a number of individuals walking around his home and those individuals soon entered the bedroom. The bedroom light

was turned on and shortly thereafter, the door to the closet was forcibly opened. [ 233 ] The first thing Guimond saw when the closet door opened was a shotgun. He immediately grabbed onto the gun and began to struggle for control of it. He noted the individuals in the bedroom had their faces masked and he believed the individual he was struggling with for control of the gun was Jason Letander, an individual he has known his entire life. [ 234 ] During the struggle that ensued, Guimond testified he was being choked, stabbed and struck in the head with a pipe wrench.

Nonetheless, he continued his struggle for control of the gun during which time he heard someone say something like “let go of the gun Punky, we are not going to kill you.” He continued to struggle and was eventually able to cock the gun and pull the trigger causing the gun to discharge in the bedroom.

Although he did not specifically see the bullet hit anyone, he believes it did hit the male at the closet door, before then going through the closet door and into the wall behind the closet door. [ 235 ] When the gun discharged, the individuals in the house ran with the exception of one individual who Guimond stated he recognized.

He acknowledged the male was masked, but he had the opportunity to look him in the eyes and was sure that individual was Jeremy Hall, an individual he has known for about twenty years. [ 236 ] Guimond observed a pipe wrench on the floor, picked it up and threw it at the individual he believed was Hall. It is his belief he may have struck Hall in the forehead with the wrench after which Hall then fled the residence.

When asked what the individuals may have taken, Guimond stated the only thing he was missing were some beers from the fridge. [ 237 ] After Hall fled the home, Guimond observed a grey Ford truck driving away but he could not see who was driving. He did recognize the truck and identified it as one owned by Kristen. [ 238 ] Guimond estimated the entirety of the incident lasted for about fifteen minutes and after it ended, he described feeling overwhelmed by its occurrence and believes he may have passed out briefly while awaiting the arrival of the RCMP.

It was determined he had been stabbed multiple times by a screwdriver, punched numerous times and there was an attempt to choke him out. [ 239 ] In terms of the shotgun he was struggling for control of, Guimond identified it as the one shown in Exhibit 4 and was the same gun he had seen a couple of evenings prior at the residence of Jason Letander.

He denied the suggestion he had previously owned that gun and that he had sold it to an individual arrested in the same residence where the gun was located. [ 240 ] In addition to naming Jeremy Hall as being involved, Guimond agreed he had also advised police of the identities of other individuals he believed were involved.

He agreed he was mistaken about some of the individuals he named in a statement and suggested the people he named may have come from Kimberly Graham. [ 241 ] As for Matthew Boyd, Guimond agreed he told police Boyd may have also been involved, that he might have been in the house at the time of the assault and he might have been the driver of the grey Ford F150 truck, even though he acknowledged he could not see who was actually driving. [ 242 ] Kimberly Graham confirmed much of what Guimond testified to and advised the court she believed the matter occurred around 0445 hours, based on series of events she set out for the court.

She agreed she had looked outside prior to the individuals gaining entrance to the residence and did see two people with their faces masked, holding either a gun or a bat. [ 243 ] She did attend the bedroom of Guimond and it was there she heard the sound of glass breaking. She saw Guimond and Adrian hide in the closet and she hid behind an entertainment unit and covered her head with a towel.

From that position, she heard footsteps and someone say “punky, where are you.” She then heard the individuals enter the bedroom, the closet door being opened and then a commotion occurring. [ 244 ] As this incident was happening, she heard a voice she recognized and stated she was “pretty sure” it was the voice of her former boyfriend, Jason Letander. She also heard a second voice say something like “don’t worry we are not here for you,” which she believed was directed at Guimond. [ 245 ] It was at this point she then she heard a gun discharge in the bedroom that resulted in her going deaf for a moment.

The next thing she recalled hearing was Guimond yelling for someone to call police, which she had done prior to the assailants having gained entry into the home. [ 246 ] In terms of the suggestion she had taken a photograph of the individuals at the doorway and showed that to Guimond, she denied that occurred. She was unsure why Guimond would have said that occurred and suggested perhaps the fact he had been struck in the head during the course of an assault may have been a contributing factor.

She did take a picture of Guimond and his nephew during the time she had been staying at the residence but that was the only picture she could recall taking. [ 247 ] Further evidence of the nature of this incident comes from the testimony of Constable Hammermueller who advised he received the initial dispatch at 0449 hours and eventually arrived on scene at 0613 hours. There he observed the front door of the residence had been blown open with glass noted to be all over the place.

He attended inside the home and cleared it for officer safety. [ 248 ] On his walk through, he located a discharged shotgun shell and observed evidence of a shotgun discharge having occurred into a bedroom closet door that went through and into a hallway closet.

He confirmed the photographs of the residence, filed as Exhibit 3, reflected what he saw on his arrival. [ 249 ] I appreciate the evidence seems to support the contention that some individuals who had been identified by both either Guimond and/or Graham as possibly being involved in this matter have subsequently been cleared of any involvement or there has been a determination there is insufficient evidence to date to support a charge being laid. [ 250 ] That being said, I do not believe this is an identity case in the manner suggested by counsel for the accused. By that I note,

Guimond had the opportunity to stand face to face with the individual he has identified as being Hall and looked into his eyes. He advised the court he has known Hall for over twenty years and was sure, after he looked at him, who it was he saw. That evidence from Guimond was consistent and uncontradicted. [ 251 ] However, I do note that was the extent of Guimond’s evidence as it related to how he knew the individual was Hall.

The lack of further clarification or information as to the basis of what, if anything else, he considered to conclude the individual in the mask was Hall is lacking and potentially troublesome. If this were the sole evidence of identification, a court would have to be careful to ground a conviction solely on that basis. [ 252 ] However, when his testimony is coupled with the evidence of Matthew Boyd, the identification of Hall as being the individual in the home becomes much clearer and stronger.

At the outset, I agree there should be some hesitation in accepting the evidence of Boyd without “something more” given his status as a co-accused in this offence and the fact that by all accounts he had consumed a fair amount of liquor. [ 253 ] In his own testimony, Boyd acknowledged having drank an eight pack of beer during the evening prior to leaving to retrieve the Ford F150 truck of Kristen Dube. She, that being Dube, testified that when Boyd left her residence in the Smart car, he was loaded and described as being a six on the proverbial ten scale but still coherent and able to speak.

When he returned to her residence later that morning she described Boyd as being “tipsy” in terms of his level if impairment. [ 254 ] Still later that morning, Boyd and Kristen Dube were the subject of a high risk traffic stop at which time Constable Young noted Boyd to have an odour of liquor on his breath, red flushed face, red eyes and he appeared to be a bit groggy. [ 255 ] With that background, it is not so surprising the times set out by Boyd with respect to when certain events occurred are nothing more than an attempt by him to estimate and try to piece together the timing of the events. [ 256 ] It is abundantly clear he has very little recollection of the time events occurred and that is no more exemplified by his response to being asked the time he left to look for the Ford F150, wherein he replied “somewhere around 0200, 0300 or 0400 hours.” Although he later agreed with the suggestion that it was around 0200 hours when he left to locate the truck, that answer has to be put into the cont

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