Her Majesty the Queen - v. -, 2011 SKPC 96

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 096 Date: July 22, 2011 Information: Y313789 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - R.L. Appearing: Mr. Tom Healey For the Crown Mr.

Brian Pfefferle For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ DECISION B. MORGAN , J _____________________________________________________________________________ INTRODUCTION:

[ 1 ] A criminal charge has two elements: the prohibited act (the actus reus ) and the intent to commit that act, or mental element ( mens rea ). R.L. admits that, on January 16, 2006, when he was 16 years old, he shot Cst. Gregory Toogood.

The sole issue in this trial is whether or not the Crown has proven that he did so with “intent to wound” him, as required for a conviction under the charge he faces under s. 244 of the Criminal Code . [ 2 ] The background in this matter is best explained by reference to the Agreed Statement of Facts, Exhibit P-1 on the trial held June 8 and 9, 2011, in Carrot River: During the evening of November 17, 2005, R.L. was involved in the theft of 57 bottles of beer and two bottles of hard liquor from a residence in Carrot River, Saskatchewan.

On January 2, 2006, Royal Canadian Mounted Police (“RCMP”) Constable Gregory Toogood (“Cst. Toogood”) met with R.L. while investigating the theft of the beer and liquor. During the meeting R.L. admitted his involvement in the theft of the beer and liquor, and Cst. Toogood advised R.L. that he would attempt to have the matter referred to the alternative measures program. R.L.’s father was not aware of R.L.’s involvement in the theft. R.L.’s father and Cst. Toogood were acquaintances and both men were outdoor enthusiasts who had, on one occasion in the past, gone fishing together in the Carrot River area.

The subsequent actions that R.L. took on January 16, 2006, as described below, were all taken by R.L. in an attempt to frightening ( sic ) Cst. Toogood into leaving the community of Carrot River. R.L. was hoping that by frightening Cst. Toogood out of the community of Carrot River, the theft of beer and liquor would be forgotten about or overlooked by the RCMP and that R.L.’s father would never find out about R.L.’s involvement in the theft of the beer and liquor. During the evening of January 16, 2006, Cst.

Toogood, together with his wife, Andrea and their infant son, Jacob, were all inside their residence (the “Toogood Residence”) in the town of Carrot River, in the Province of Saskatchewan. A second couple, Mike and Vicky Keck and their infant son, were also at the Toogood Residence that evening, visiting the Toogood family. That evening, as usual, the Toogood family’s dog (the “Dog”) was housed outside their residence in a fenced area near the back corner of the Toogood’s yard. The Dog had been through obedience training and was trained not to bark unless for a reason.

During the first part of the evening of January 16, 2006, R.L. was in the basement of the Williams’ family residence in Carrot River, Saskatchewan. R.L. went to school with, and was friends with, the Williams’ son. At approximately, 7:20 p.m., after R.L.’s friends had left the Williams’ house to go for a ski doo ride, R.L. decided to leave the Williams’ basement and take the actions described below in an attempt to scare Cst. Toogood into leaving the community of Carrot River. For a couple of weeks R.L. had been attempting to think of a way to frighten Cst. Toogood into leaving the community of Carrot River.

At approximately 7:20 p.m., R.L. left the Williams’ residence and walked a few blocks to the house in Carrot River that he lived in with his father. While at his residence, R.L. changed his clothes so that he was wearing black sweat pants and a black hoodie. While at his own residence R.L. obtained a key to his father’s locked gun cabinet. The key was hidden underneath some clothing in his father’s bedroom dresser. R.L. then unlocked his father’s gun cabinet and took a Remington 30-06 calibre rifle (the “Rifle”) and one shell for the Rifle. The Rifle was equipped with a hunting scope.

See photo #1 (Rifle and scope). R.L. then loaded the shell into the Rifle while still at his own residence. R.L. also placed a camouflage ski mask or balaclava, with only two eye holes and one mouth hole, over his face so no one could recognize him. While still at his residence he also he ( sic ) put grocery bags over top of his shoes and tied the grocery bags in place in an attempt to obscure any footprints he might leave behind. R.L. then put on gloves, took the loaded Rifle and proceeded to walk between a couple of houses and then down a back alley, for approximately one block, to the Toogood Residence.

Once R.L. arrived at the Toogood Residence, he entered the Toogood’s yard from the back alley. Shortly after R.L. entered the Toogood’s back yard, he started walking towards the back door of the Toogood Residence. Then the Dog started barking. The barking Dog startled R.L. and he moved toward the north of the Toogood Residence and then between the Toogood Residence and the house located at 329 - 3 rd Ave. West in Carrot River (the “Neighbour’s House”) as set out on the attached Diagram #2. The motion activated yard light in the Toogood’s back yard came on as R.L. past ( sic ) it.

When R.L. reached the position of the north west corner of the Neighbour’s House, which is identified with the word “Shot” in Diagram #2, he stopped to fire the Rifle. When Cst. Toogood opened the back door of his residence to speak to the barking Dog, R.L. fired the Rifle. The bullet which R.L. fired from the Rifle struck Cst. Toogood in the right forearm and caused severe and significant damage to Cst. Toogood’s arm. Prior to hitting Cst.

Toogood’s right forearm, the bullet that R.L. fired from the Rifle proceeded through a spindle on the deck of the Neighbour’s House and then through the window of the back door of the Toogood Residence. See photo #3. At the time that he fired the Rifle, R.L. believed that it was Cst. Toogood who had opened the door to speak to the Dog. At the time that R.L. fired the Rifle, the back door to the Toogood Residence that Cst. Toogood opened, and through which R.L. fired the shot, contained a clear glass window and was not covered by a curtain. See photo #4 and #5.

While the parties agree at a minimum that R.L. was attempting to shoot at the back door of the Toogood Residence, as the issue to be determined at this trial is whether R.L. was attempting to shoot Cst. Toogood when he fired the Rifle, this Agreed Statement of Facts does not specify exactly what R.L. was aiming at when he fired the Rifle. After shooting Cst. Toogood, R.L. ran towards the same back alley that he had first used to walk to the Toogood Residence. He then ran down the back alley to his residence along the path depicted in red in photo #6.

R.L. ejected the shell from the Rifle prior to getting to his residence. Once at his residence, he took the plastic bags off of his feet, took a clean cloth and wiped the exterior of the Rifle with the cloth. He returned the Rifle to the gun cabinet, re-locked the cabinet, and returned the cabinet key to its original hiding place

underneath some clothing in his father’s dresser. R.L. then changed back into the clothes he had been wearing earlier in the eveningwhile at the Williams’ residence. After changing his clothes he then walked back to the Williams’ residence. While walking toward theWilliams’ residence, R.L. threw the plastic bags that he had used as well as the black sweat pants and the black hoodie that he had wornduring the shooting, into a garbage dumpster along the way. R.L. arrived back at the Williams’ residence before his friends returnedback from their ski doo ride.

A short time after his friends returned home from snowmobiling, R.L. and one friend went to the otherfriend’s residence located directly across the street from Cst. Toogood’s house. While there, they watched the police and ambulanceactivities at the Toogood Residence. After a short while, R.L. and his friend returned to the Williams’ residence. While travelling backto the Williams’ residence, R.L. stopped at his own house and went inside for a short period of time. As he was leaving the house, henoticed some of his own footprints in the snow, which he had made as he was running home after shooting Cst. Toogood.

R.L. used ashovel to sweep snow away and obliterate some of those tracks. He and his friend then returned to the Williams’ residence. Later in theevening, after he returned home, and after he observed a police dog in an area not too far from his own residence, he showered and thenwent to bed. [3] R.L. never told anyone about his involvement in this matter, until he met, in March of 2011, when he was 21, with a manwho he perceived to be a somewhat unsavoury character, a “businessman” in name only.

This individual, whom I will call the boss,portrayed himself as somewhat of a modern Don Corleone, the famous fictional character in the Godfather movies, with a dash of thehard edginess of Tony Soprano of the recently concluded television series. R.L. was of the view that the boss could “fix” some things,basically by getting rid of evidence that the police authorities were seeking that would tie him inextricably to the shooting. He thereforetold the boss what had happened, being totally unaware that the boss was a member of the Royal Canadian Mounted Police, playing arole in what is often referred to as a “Mr.

Big” sting operation. [4] As the issue in this trial is the specific intent of R.L., I will deal with the areas that counsel laid out as being critical to thatanalysis, as follows: 1) The comments R.L. made to friends of his after the minor theft was discovered, but before the shot was fired. 2) The degree of planning that took place on the night of the shooting. 3) Whether or not it can be inferred that R.L. intended to shoot Cst. Toogood, on the basis that he did in fact shoot Cst.

Toogood, and thatone can assume that an individual intends what actually occurs. 4) Whether intent can be determined based on what R.L. told the boss in March of 2011. [5] Although those are the broad categories that the evidence and discussion will be divided into, the law requires that R.L. canonly be found guilty if his guilt is established beyond a reasonable doubt, based on all the evidence.

Thus, although the discussion easilylends itself to division into certain categories, the case will be determined on the whole of the evidence. [6] Further, as R.L. testified, this case has been decided with consideration given to the standards set out in R. v. McKenzie(1996), (SK CA), 141 Sask.

R. 221 (C.A.), which distilled jury instructions from two prior decisions as follows: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; and Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [7] Against this background, I will undertake the analysis as set out above. 1) The comments R.L. made to friends of his after the minor theft was discovered, but before the shot was fired.

[ 8 ] A.D., 22 at the time of the trial although a young person at the time of the shooting, is a long time friend of R.L.’s. His evidence was that, prior to the date of the shooting, when R.L. and A.D., as well as B.H., another friend of R.L.’s, were all present, R.L. had made some negative comments respecting the injured officer.

When asked for examples, A.D. stated that R.L. had said “maybe I should smash a window or something”. [ 9 ] A.D. then said, when asked for particulars, that “I believe what he said was someone should just shoot him or something”, adding that at the time this comment was made, R.L. was laughing.

A.D. had also said that, at one point in the same general time frame, R.L. had spoken of the officer “taking a vacation”. [ 10 ] The background for this discussion was that the three of these individuals were talking about the alcohol theft, and A.D. said that the three of them, all of whom were involved, were “worked up” about it, and R.L. was frustrated. [ 11 ] When asked for further details about this conversation, A.D. stated he didn’t have any particular recall. [ 12 ] Mr. Healey then made application under s. 9(2) of the Canada Evidence Act , an application that was heard on a voir dire .

At the conclusion of the voir dire , I granted leave to the Crown to cross-examine A.D. on a prior statement he had made, a statement that I determined to be inconsistent with his evidence at trial. Section 9(2) of the Canada Evidence Act reads as follows:

(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or videotape or otherwise, inconsistent with the witness’ present testimony, the Court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the Court may consider the cross- examination in determining whether in the opinion of the Court the witness is adverse. [ 13 ] When cross-examined by the Crown on a videotaped statement that A.D. provided to the police on February 16, 2006, he acknowledged that what he said in that video was that R.L. said “I should shoot him”, as opposed to A.D.’s earlier testimony that R.L. said “someone” should shoot him.

His trial evidence was that he recalled that in fact R.L. had said “I” should shoot him, as opposed to R.L. having said “someone” should shoot him, the “him” referring to Cst. Toogood. [ 14 ] During cross-examination, A.D. was quick to agree with any suggestion put to him by defence counsel that would weaken his earlier testimony.

He agreed with the suggestion that the three of them could have been drinking when the comments he attributed to R.L. were made, that he was himself a suspect in the shooting, that he was nervous when he was questioned by police, that the three of them could well have been using marihuana at the time the statements were made, and when asked if it was likely he was intoxicated, agreed immediately. He went on to agree with the suggestion that the reason that he wanted to cooperate at the time of his statement to the police was that if he didn’t, he was afraid that the police would look to him as a suspect.

He agreed that it was possible that he had reconstructed what R.L. had said, and he agreed that R.L. could have said “I should shoot out his window”, not “I should shoot him”.

Further, he kept explaining that every time R.L. made such a comment, A.D. thought R.L. was joking, and A.D. didn’t believe that R.L. meant it. [ 15 ] In re-examination on this question of drinking and/or drug use, A.D. reiterated that it was possible that he was using drugs at the time of hearing these comments, and when repeating it in the statement to the police, and that he didn’t remember if he was under the influence of alcohol at the time he gave the statement to the police. [ 16 ] B.H., the other young person involved with the theft of the liquor which precipitated whatever plans R.L. came up with, described himself as R.L.’s “best friend” since grade 4.

He denied that R.L. ever said anything other than potentially breaking a window, and that was said to him by A.D. and another youth, another friend of the group, E.H. [ 17 ] In cross-examination, B.H. admitted he couldn’t recall precisely who was present, and when queried in cross-examination about the fact that A.D. brought this matter up with a school counsellor at a time when B.H. was present, acknowledged this counselling session occurred “the next day”, that is, the day after the comments were made.

[ 18 ] B.H. also said that R.L. was “not much” of a hunter. He testified as well that he “can’t remember, it was five years ago”, when asked what it was that had gone on in the conversation in which R.L. supposedly disclosed a plan to shoot Cst. Toogood, although he had stated in examination-in-chief that R.L. had spoken of breaking a window. [ 19 ] Cpl. Richard Thonge also testified for the Crown on this issue, as he was the one who took the February 1, 2006 video statement from A.D.

He testified that A.D. seemed coherent to him at the time he took the statement, and that he appeared to understand the warning given to A.D. as to the consequences of not telling the truth in that statement. [ 20 ] As mentioned earlier, R.L. testified in his defence. On this point, he stated that he had no formal plan at the time matters were discussed the evening that A.D. referred to, and he denied that he ever discussed with anyone what he was going to do on the night of the shooting. He definitely was panicking at the time, he said, as he didn’t want his father to know about the theft of the liquor.

In his words, he was scrambling for ideas to get Cst. Toogood out of town, and had considered breaking the windows on the truck, and then determining that wouldn’t do it. He thought he might shoot at the house, as that might do it, as he had heard that Cst. Toogood had enemies. The idea of shooting at the house, he reasoned, would make Cst. Toogood think he was in danger, the overall plan being that, if Cst. Toogood left town, the liquor theft matter would simply be forgotten. He said the only discussion he had with his friends was possibly shooting out the window of Cst.

Toogood. [ 21 ] In cross-examination, he agreed that he said “I” should do something, referring to the conversations with his friends, but he continued to deny any suggestion that he ever said that he was going to shoot Cst. Toogood. [ 22 ] In dealing with this particular aspect of the case, I have reached a number of conclusions. First, there is no doubt in my mind that A.D. remains a friend of R.L.’s, and that throughout the time he was being questioned by Crown counsel, he was obviously extremely reluctant to say anything that would implicate his friend.

His testimony was marked by long pauses, at times when such a pause was not necessary nor would be expected, and he was, in common parlance, bending over backwards to not say anything that would be harmful to his friend. His eagerness, as displayed during cross-examination, to leap at any suggested reason that he might be mistaken on some points, solidified this view. [ 23 ] A trier of fact is of course free to accept some, none, or all of the evidence of any witness. It was patently obvious that A.D. was not inclined to say anything adverse to R.L.’s interests.

I do not believe him when he states that it was possible that he was drunk when he gave the statement to the police, and I do not believe him when he attempts to resile from what he said in that statement. The evidence that I accept from A.D. is that he in fact heard R.L. say that R.L. should shoot the constable. [ 24 ] B.H. was a most unsatisfactory witness. He was surly, he was abrupt, and he was as well clearly motivated to say nothing that would potentially harm his best friend.

His attitude throughout his evidence was one of disinterest, and one of combined disinterest and defiance when cross-examined by the Crown. [ 25 ] I do accept as accurate Cpl. Thonge’s assessment of the sobriety of A.D. at the time A.D. gave the statement to police. The evidence from A.D. was not that he had in fact consumed alcohol or drugs; his evidence was that he might have. [ 26 ] I am satisfied that R.L. did in fact say, on more than one occasion prior to the shooting that he should “shoot” Cst. Toogood.

It was clear to me that R.L. was then a confused youth who was trying desperately to come up with a workable plan to remove Cst. Toogood from the community. I do accept R.L.’s evidence that he was happy living in Carrot River with his father, and that he was desperately afraid that, if his father found out that he was involved with the theft of liquor, his father might make good on his threat to R.L. to send him back to live with his mother. It was apparent that R.L. had been wretchedly unhappy while under the care of his mother, as he had been prior to moving to live with his father in Carrot River.

This fear was a very large part of the reason that he was trying to find a way out of his predicament in the first place. I note that no more than two weeks elapsed between Cst. Toogood telling R.L. that R.L.’s father would have to know of the theft, and the shooting, and the discussions referred to obviously had to occur within that window. At the time R.L. made these statements to his friends, sometime within that two week time frame, I cannot conclude that he said it in the way of a firm plan to actually shoot Cst. Toogood, as opposed to a potential option.

That is not to say he may not have committed to such a plan at some time during that window. I am simply isolating this argument, in context, as to what he said, and when, and make these comments in dealing with the overall evidence.

2) The degree of planning that took place on the night of the shooting. [ 27 ] The Crown notes that the shot was made from approximately 25 metres away, and stresses that the planning that went into this should lead to the inescapable conclusion that he did exactly what he intended to do, that is, shoot the officer. Mr.

Healey argues that the evidence at trial, including the Agreed Statement of Facts (P-1) can lead to no other conclusion. [ 28 ] The defence counters by stating that, although he clearly put a lot of planning into what he was going to do, all the steps that he took to cover up this matter of the shooting are equally consistent with a plan to shoot out a window, as opposed to shooting at the officer. [ 29 ] There can be no doubt that a considerable amount of planning went into both what R.L. would do to get himself out of what he considered a serious problem, and the steps taken to both execute the plan, and to avoid detection afterwards.

I note the following factors in particular: • Although R.L. may not have constructed an alibi in advance, he must have had a plan ready, as, when his friends left the residence all of them were at, he immediately decided to take advantage of a ready made alibi. • In furtherance of his plan, he rushed home, changed his clothes so that he was dressed all in black, obtained a key to a locked gun cabinet, a key that was hidden, unlocked the gun cabinet, and took out a large calibre rifle with a scope, and one shell for that rifle. • He then loaded the shell into the rifle, placed a camouflage mask over his face so that no one could recognize him, and put grocery bags over the shoes he was wearing in an attempt to obscure any footprints he would inevitably leave. • Upon arriving at the back yard of Cst.

Toogood’s, he proceeded to walk towards the back door, and when startled by a barking dog, moved around to the side of the next residence. • While concealed in that location, as soon as the back door of Cst. Toogood’s residence was opened by Cst. Toogood, while looking through the scope mounted on the rifle, he fired the single shot that struck Cst.

Toogood in the right forearm, causing significant injury. • He then ran back to his house, ejecting the shell from the rifle on route, and at his residence, took the plastic bags off of his feet, and returned the rifle, now clean, and the key to the gun cabinet, changed back into the clothes he had been wearing earlier, and walked back to the residence he had earlier left. • While walking that way, he disposed of the plastic bags, and the black clothing, and arrived at that residence before anyone knew he had been gone. • When stopping briefly at his residence, he noted that some of his own footprints were visible, and took steps to obliterate those tracks. [ 30 ] Further, the booklet of photographs, some made the night of the shooting, and some later, as well as the evidence of Cpl.

Kerkowich, the officer who ran a “track” at the scene with his dog the night of shooting, clearly confirm the route that was taken. Cpl. Kerkowich did give the opinion that the person who made the tracks was walking upon entering Cst. Toogood’s yard, and it appeared as if that individual was standing for awhile at the location from which the shot was fired, his final observation being that it looked like the person was running after that. [ 31 ] As to the plastic bags, used in an attempt to obliterate or at least lessen the mark of the footprints, both Cpl. Kerkowich and Cpl.

Ridding noted that, when the tracks went across deep snow, it was hard to get an impression, as the snow tended to fall into the depression left by a footprint in the deep snow. Further, Cpl. Ridding said that it was hard to see the impressions left by footprints in the alley, presumably because the snow would not have been as deep, and would be somewhat packed down. Cpl.

Ridding also expressed the opinion that, when looking at the impressions in the alley, they appeared to be a longer stride, implying that whoever it was that left those tracks was running at the time. [ 32 ] I accept the observations respecting the snow, and whether or not a person would be walking or running, as general observations made by officers experienced in the field, as opposed to expert evidence. It would be a logical inference, in any event, that a shooter would cautiously approach the target, and, having fired a shot, would be equally likely to depart in a hurry.

However, not a lot turns on those facts.

[33] In general, when dealing with this argument, I accept the point raised by Mr. Pfefferle. Shooting out a window of the home ofa police officer, and shooting at a police officer himself, are serious matters. In either case, one would want to take precautionary stepsto ensure he or she remains undetected. I cannot conclude, on the fact only that the youth took steps to conceal this crime, that henecessarily intended to shoot the peace officer. 3) Whether or not it can be inferred that R.L. intended to shoot Cst. Toogood, on the basis the he did in fact shoot Cst.

Toogood,and one can assume that an individual intends what actually occurs. [34] This is not so much a legal maxim as it is the application of common sense. The rationale is explained in R. v.

Seymour, (SCC), [1996] 2 S.C.R. 252, 135 D.L.R. (4th) 225, 106 C.C.C. (3d) 520, 49 C.R. (4th) 190, at paragraph 19 S.C.R.: When charging [a jury] with respect to an offence that requires proof of a specific intent it will always be necessary to explain that, indetermining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and soberpersons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee theconsequences of their actions.

Therefore, if a person acts in a manner which is likely to produce a certain result it generally will bereasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to producecertain predictable consequences, it may be inferred that the person intended those consequences. [35] The Crown’s argument becomes that, because Cst. Toogood was shot in the arm, R.L. intended to shoot Cst. Toogood. Put inother terms, if R.L. intended to shoot the window, he would have done so. [36] Mr.

Pfefferle counters by arguing that, under these circumstances, that otherwise logical inference cannot be drawn. He notesthat this was a quick shot, the bullet hit the spindle before it hit the officer, and the fact that R.L. had experience with shooting at biggame animals is not evidence that he is a skilled marksman. [37] Cpl. Ridding prepared a video clip February 7, tendered to demonstrate, from the shooter’s point of view, what could be seenthrough a scope. Cpl.

Ridding used a four power scope on a 30-06 calibre rifle, and set it up on a tripod at the same location where theshot was fired from, so that he could look down the scope, to the extent possible, to recreate the view of the shooter. This had been doneby noting where the bullet hit the spindle, and where the bullet hit the house, after striking Cst. Toogood, and then plotting the trajectoryof the bullet.

He then used a video immediately next to the scope, adjusted the zoom on that video to match the power of the scope, andrecorded what occurred. [38] The view, although not a perfect recreation, does give a valuable assessment of what could be seen through a four powerscope from a distance of just over 25 metres. When the door is opened, a motion sensor illuminates the light over the door (on the nightof the actual shooting, that light was already on).

There is no covering of the view through the window, such as by shades or curtains,and one can clearly see a forearm extended from the door handle back into the house, at an angle, which is perfectly consistent andnormal with how one would open a door from inside a house.

In this case, the handle and latch are on the far side of the door, with theeffect that, when the door is opened, it swings outward from the left side of the person opening the door, with that person’s right forearmclearly visible, holding the door open. [39] The fact that the bullet hit a spindle on the deck of the house the shooter was hiding behind does not necessarily mean that theshot was thrown off; there is no expert evidence available as to what effect, if any, such a deflecting blow would have on a high-poweredrifle at close range.

Further, although one can see that the spindle has been damaged, it is not clear how much of the spindle was hit. [40] In these circumstances, the fact that the bullet hit Cst. Toogood in the arm is significant in that it tends to support the view ofthe Crown that R.L. intended to shoot Cst. Toogood in the arm. Otherwise, the shooter could have deliberately aimed the rifle somewhathigher, placing a shot through the window some distance from Cst. Toogood’s arm. [41] R.L.’s father, who is an experienced hunter and had mounted the scope on the rifle, testified that he deliberately set the scope

to shoot eight inches high, as the “kill zone” on a deer has a diameter of one and a half feet. This was done to ensure that, depending on the distance that the target animal was from the shooter, the bullet would always enter the animal in the kill zone.

The father testified that, sighted in the fashion that the gun was, a shot at 100 yards would be in the top of the kill zone, at 200 yards it would be a little bit lower, and that, at 300 yards, the bullet would enter the centre of the kill zone. [ 42 ] Even accepting that this is all true, that does not necessarily mean that the shot was not intended to hit Cst. Toogood in the arm. I reject the evidence of R.L.’s father, as to how he had the sight aimed, and the precise measurements he refers to. R.L.’s father testified in a sure and certain manner, when answering questions put to him by defence counsel.

However, when he was cross-examined by Crown counsel he tended to get very defensive, and did so very quickly. The father was rather combative during cross-examination, and was, in my view, somewhat dodging questions put to him by counsel. I found the difference in attitude quite telling, and harmful to the credibility of the father. [ 43 ] R.L. testified that he did not intend to shoot the officer. His evidence was that “as soon as I saw the cross-hairs on the door I shot”. He testified that his original plan was to knock on the door, and that when the door was opened, he’d shoot at the house.

In cross- examination, he stated that he saw the door open as he looked around the corner, and claimed that “it was fast and it was reckless”. [ 44 ] I am fully satisfied on the evidence that R.L. simply had to have seen the arm in the scope at the time the door was opened, and at the time he fired the rifle. [ 45 ] Further, R.L. testified that he had no idea, after the shot was fired, that he had hit anybody. I do not believe that, and I specifically reject that evidence. The shot would have reached its target almost immediately upon leaving the gun barrel, at that range.

The shot did devastating injury to the arm of Cst. Toogood, and it is not believable that the sound of the impact could not be heard from 25 metres away, nor is it conceivable that the devastation and effect of that shot could not be seen from that distance. This leaves aside any noise that might have come from Cst. Toogood when he was shot. [ 46 ] In these circumstances, under this topic, I do conclude that there is compelling evidence that the youth shot at Cst.

Toogood intentionally, not at the window, or the house. 4) Whether intent can be determined based on what R.L. told the boss in March of 2011. [ 47 ] There is a non-publication order on any information that could identify the individuals involved in the undercover operation which culminated in a discussion between the boss and R.L.

I will therefore refer to the other major player in this operation only as the boss’ nephew. [ 48 ] The background for this discussion was that R.L. had been a suspect for quite some time, based on the track the night of the shooting, that led back to his house, but there was insufficient evidence to justify laying of a criminal charge.

Hence, an operation was set up, for the specific purpose of having R.L. speak about this matter to a person whom he believed to be someone who could help him escape what R.L. felt was his imminent arrest. [ 49 ] In furtherance of this plan, contact was made at some point with R.L., and he was drawn into a group of apparently unscrupulous members. In the process, he became close to the boss’ nephew. R.L. was assigned various tasks, starting with assisting in the repossession of automobiles.

Gradually, he took on more responsibility, and his missions became increasingly removed from perfectly legitimate duties to jobs that were clearly not so legitimate. This had included him acting as a courier for a package of what he clearly had to know to be diamonds by plane from Calgary to Montreal, where they were dropped off with an individual who had clear connections to crime. Additionally, at one point he went into a border crossing, and on the instructions of his compatriots, threatened a border guard who was apparently not performing for the operation as he was expected to.

What had started out to be repossessing of cars had escalated to the point that, although R.L. was reluctant to admit it, he clearly had to know was criminal activity. [ 50 ] On an occasion shortly before the video statement was taken, R.L. was in a restaurant, having lunch with the boss and his nephew, in Saskatoon, when one of the investigating officers, one known to R.L., approached them in the restaurant, and told R.L. that he wasn’t going to be free much longer, clearly intimating that the net was drawing tighter around him in the ongoing criminal

investigation. [ 51 ] Shortly thereafter, R.L. met with the boss in a hotel room in Regina, which had been surreptitiously arranged to record the conversation. This video became an exhibit at the trial. [ 52 ] The video commenced with R.L. coming into the room with some of the underlings of the boss, all of whom were talking in rather coarse language of various events, and making oblique references to other criminal or quasi-criminal chores they were involved with. This furthered the idea that had clearly been planted in R.L.’s mind that he was hanging out with a fairly tough crowd.

R.L. was sitting quietly while this banter was going on. [ 53 ] When the boss entered the room, the underlings were clearly treating him with respect and deference. The boss was well dressed, and came across as a “businessman” who had the power and influence to get things done. Whereas he was not portrayed as what one might refer to as a “leg breaker”, the overall impression he left was that, if it became necessary, he would have no qualms in hiring someone to do precisely that.

Prior to the underlings being told to leave the room, and in the presence of R.L., the boss dressed down, in a mild way, one of the underlings, and made reference to the fact that the boss had to pay off someone to “fix” a speeding ticket issued to this person. This ticket had been issued to this underling while he was on some assignment for the boss, and the boss was not too happy about that. The impression was clearly left that this ticket was an easy thing for the boss to fix, and although he was mildly annoyed at the underling for putting him to the trouble, he didn’t expect such behaviour to occur again.

The underling was suitably cowed by this mild admonishment, and was quite anxious to assure the boss this type of thing wouldn’t happen again. He was effusive in his gratitude, and he took pains to indicate his appreciation for the boss’ intervention. [ 54 ] Once people had been cleared out of the room, the boss went into a lengthy introductory conversation with R.L., which took approximately 10 or 15 minutes. What was patently clear during these introductory comments was that the boss understood that R.L. was there to ask for his help, which R.L. confirmed.

It was equally clear that the boss had no interest whatsoever in helping out R.L. as a favour to R.L.; to the boss, business is business, and he had no business reason to lift a finger to help R.L. However, loving his nephew as he did, he was prepared to help R.L. as a favour to his favourite nephew.

If the boss decided to take the trouble to deal with whatever it was that R.L. was seeking his assistance on, it was a precondition that R.L. tell him nothing but the truth. [ 55 ] After pondering for some time as to whether or not it was worth it to the boss to assist R.L. as a favour to his nephew, the boss finally agreed to help.

It was obvious on the video that, upon the boss making this proclamation, R.L. was hugely relieved, and it was abundantly clear that a considerable weight had been removed from his shoulders, as R.L. could see a way out of his predicament. [ 56 ] The video also left no room for doubt that R.L. understood two things.

The first was that the boss, in order to be totally prepared, and in order to avoid being blind sided by some fact that R.L. may not have told him, simply had to be aware of exactly what happened; therefore, R.L. was to tell the boss everything, so that all eventualities could be covered off. [ 57 ] The second point was that if the boss found out, at any time, be it that day, or years into the future, that what R.L. told him was anything less than the complete truth, or that something had been held back, the boss would be “washing my hands of you”.

Specifically, the boss did not say that he would take any direct action, or authorize any action, to harm R.L. Rather, the cost of withholding information, or failing to be totally truthful, was that R.L. would no longer be the recipient of the boss’ intervention, and that R.L. would be left to deal with his problem on his own. [ 58 ] The boss then advised R.L. that the boss had recently received a package, a package that would cement the fear that R.L. had of the net closing, as it were.

R.L. clearly believed, based on this information that the boss had, coupled with the earlier comment of the investigating officer, made in the restaurant, that he was close to being detected, and he clearly believed that only the boss could bail him out of a very difficult situation, that being his imminent and inevitable detection. [ 59 ] Against this background, R.L. made the following specific comments. The time notation corresponds to the time shown on the video. [ 60 ] At 13:09:35 - He stated “It was never obviously my intention like killing him, or anything, I wanted to just hurt him so he’d be

done and leave the town”. Shortly after, he went on to state that he saw Cst. Toogood open the door, and he had his arm extended, and that “I hit him in the arm”. [ 61 ] At 13:17:50 - When asked specifically what his motive was in firing the shot, R.L. stated “I just wanted to scare him like maybe hit him in the arm or something”, following that up with “I thought that the officer would think someone was trying to kill him”. After hearing of this intention, the boss then shook R.L.’s hand, congratulating him on what he did, saying that it took “a lot of balls”, which elicited a nervous laugh from R.L.

Clearly, R.L. was impressed that the boss was impressed. [ 62 ] At 13:20 - When the boss reviewed matters, he made mention that R.L. decided at some point to “go shoot him”, and R.L. agreed. [ 63 ] At 13:28:00 - The boss asked him, “what were you thinking”, to which R.L. replied “yeah, I was just going to shoot him in the arm or the leg or something and hopefully he was going to leave town”. [ 64 ] At 13:29:30 - The boss then left the room to go to the bathroom, encouraging R.L. to think about things while he was gone, to make sure that everything had been disclosed, and that there was nothing left to tell him.

Upon his return, the boss asked R.L. if he had been totally truthful with him, and R.L. stated that he had. [ 65 ] The boss again told R.L. that he was not helping out R.L. for R.L., but rather, he was doing it for his nephew. The video ended shortly after, and R.L. was instructed to wait at a hotel in Saskatoon for further work. Shortly afterwards, he was arrested. [ 66 ] The evidence of R.L. at trial was that he told the truth about everything to the boss, with the exception of what was actually in his mind when he fired the shot.

He said that his reasoning was that the boss thought he had fired a gun at a police officer, and he kept referring to him having “balls” and “stones” for having done so, and he felt that if he told the boss he didn’t mean to hit the officer, the boss would think he was lying.

He said that he was afraid that if the boss found out that R.L. wasn’t such a tough guy, he wouldn’t want to help him out because he would not be worthy of the boss’ respect and assistance. [ 67 ] In cross-examination at the trial, he acknowledged that he was a good friend with the nephew, and that he in fact thought these people were all criminals, and that he had a meal in January with the boss and the nephew. He agreed that he wanted to meet with the boss, as he was in trouble, and that no one forced him to go. His evidence was very candid on this point.

Clearly, he wanted assistance from the boss, because he was in deep trouble. [ 68 ] Further, he agreed that the boss made it clear that he was not to lie to him, and he confirmed that everything else he told the boss in that interview was true, except the part about shooting the officer in the arm. He also stated, in cross-examination, that he didn’t know anyone was home the night of the shooting, in advance of going to the Toogood residence. [ 69 ] I do not accept R.L.’s evidence that he had any fear of the boss, at the time he was talking to him on the videotaped statement, or at any other time.

Where the evidence of R.L. at trial conflicts with the evidence of R.L. during the videotaped conversation, I reject the trial evidence and accept the evidence at the hotel as being accurate. I note the following:

(1) R.L. had met the boss before; he had a meal with him and the nephew at the restaurant in Saskatoon.

The recorded statement was not the first meeting with the boss, and there was no suggestion the boss did anything at that meal that would cause R.L. to fear him; (2) the boss was absolutely clear that, if he declined to help R.L., he could simply walk out the door, with no impact on R.L.’s future work with the boss; (3) although R.L. knew that the boss was a rather shady individual, and clearly not a man to mess with, there was no indication whatsoever in that videotaped interview that he personally had any fear of the boss, and the boss did nothing to indicate otherwise; (4) he indicated to the boss that he was definitely there for help, and it was clear that he very much wanted the boss’ assistance;

(5) R.L. knew that only the boss would know the whole story. He knew that the boss would delegate certain chores to various underlings, but each one would only know what he had to know to fix his part. The disclosure that R.L. made to the boss was therefore made in the safest of circumstances, as each of he and the boss would, as the boss put it, take this to their graves; and (6) it was made abundantly clear throughout the interview that this matter was not one of business expediency for the boss; he was doing it only for family reasons, and for no business reason whatsoever.

This being so, it would be of little importance to R.L. if the boss was impressed with him. [ 70 ] I reject any suggestion that R.L. was being anything less than completely candid with the boss during that conversation. R.L. did not tell the boss this to get it off his chest, or to clear his soul. R.L. had lived with this secret for five years and there was no reason to believe that he was eager to confess to anyone.

He told the boss what happened for completely utilitarian purposes, so that the boss would know everything and would therefore be in a position to patch up any potential leaks that might expose R.L. to discovery. In this situation, it was all the more likely that R.L. told the entire truth, as it was in his best interests to do so. [ 71 ] By his own admission, everything else that R.L. talked about during that interview was the truth; he admitted that during his examination and cross-examination, and the story he told the boss checked out in all ways with other evidence given.

There would simply be no reason for R.L. to tell the boss the truth of everything, except on the critical element of what his thoughts were. As the Crown made clear during cross-examination, by the time the conversation had got to that point, the boss had agreed to help. As such, there was no advantage whatsoever to R.L. to not be truthful at that point. [ 72 ] There was no indication on the video, at any time, that R.L. was afraid of the boss, or was hesitant in any way in telling the boss what occurred. Further, the boss was the first soul to whom R.L. had ever told what occurred.

Telling the story for the first time, under these circumstances, is not supportive of the idea that R.L. feared the boss. Rather, it is supportive of the view, which I hold, that R.L. trusted the boss, and having shared this with him, he would obtain assistance.

This is supportive of the view, which I hold, that R.L. was being truthful when he told the boss that he “was just going to shoot him in the arm or leg or something”. [ 73 ] I also note that, after the story had been told, and before the underlings came back to the room, there was a very comfortable few minutes when R.L. and the boss were chatting about what R.L. did for a living, his girlfriend, the Saskatchewan economy, etc.

There was no suggestion of any fear or discomfort between the two at that point. [ 74 ] On a procedural note, any evidence referred to from the videotape is taken directly from the videotape. Although the transcript was filed as an exhibit (P-5), the transcript itself has no evidentiary value, and has not been relied on, except to the limited extent of acting as what one might refer to as a lengthy index.

The transcript itself has not been made in accordance with the provisions of The Saskatchewan Evidence Act , has not been certified to be correct, and shows all appearances of having been created, internally, by a staff member or members of the investigating authorities. As a guide, it is a useful reference tool. However, as evidence, it has no value, and has not been used. As noted in R. v. Martin , 2010 BCCA 526 , paragraph 53 : It is common ground that the transcripts are not evidence. They are an aid for the jury when it listens to the actual recordings of the intercepted telephone calls.

Mistakes may occur in the transcription process: See Rowbotham, supra , at 47-48. The Law [ 75 ] R.L. is charged as follows: With the intent to wound Gregory Toogood, discharge a firearm a Remington 30-06 calibre rifle at Gregory Toogood contrary to s. 244(2) (

b) of the Criminal Code . [ 76 ] At the time of the offence occurring, being January 16, 2006, s. 244 read as follows:

Every person who, with intent (

a) to wound, main or disfigure any person, (

b) to endanger the life of any person, or (

c) to prevent the arrest or detention of any person discharges a firearm at any person, whether or not that person is the person mentioned in paragraph (a), (

b) or (c), is guilty of anindictable offence and liable to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for aterm of four years. [77] On February 28, 2008, that version of s. 244 of the Criminal Code was replaced with the following: 244(1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger thelife of or to prevent the arrest or detention of any person - whether or not that person is the one at whom the firearm is discharged. [78] In general criminal law principles, intent can sometimes be established through recklessness, or wilful blindness.

However,under this charge, it is necessary that the Crown establish that R.L. had the specific intent to wound. A specific intent offence, as this oneis, requires this Court to conclude that R.L. subjectively intended the consequences of his actions in discharging the firearm. There is noquestion that R.L. intended to, and did, discharge a firearm. The question is whether or not he did so “with the intent to wound GregoryToogood”. The law applicable to this question is nicely summarised in the case of R. v.

Foti, 2002 MBCA 122, 169 C.C.C. (3d) 57, 7 C.R. (6th) 161, at paragraphs 24 through 27: 24 The mens rea in this offence, as opposed to that of aggravated assault, is one of specific intent: Colburne, at p. 249, and R. v.Martin, (AB KB), [1947] 1 W.W.R. 721 (Alta. T.D.), at 725. It is not sufficient to have an intention to threaten, scareor frighten someone, nor is it sufficient to objectively foresee that there is a risk of harm. According to the case law, the accused musthave an actual intention to wound: R. v. MacDonald (1944), (SK CA), 82 C.C.C. 47 (Sask. C.A.); R. v.

Connop (1949), (ON CA), 94 C.C.C. 349 (Ont. C.A.); and R. v. Cashman (1951), (ON SC), 13 C.R. 45 (Ont. Co. Ct.). 25 In determining whether an accused has formed the requisite intention to wound, the trier of fact will often have to infer such anintention from circumstantial evidence.

In doing so, it is acceptable for the trier of fact to consider that a person generally intends thenatural consequences of his actions: Cashman, at pp. 51-52. 26 Having said that, however, the evidence against the accused must not only be consistent with the fact that the accused shot at thevictim with the intent to wound, but must also be inconsistent with any other rational conclusion.

If the evidence against the accused isequally consistent with the inference that the accused fired the shot not at the victim, but into the ground or the air in an effort to scarethe victim, then the accused should get the benefit of the doubt: MacDonald, at p. 51, and Cashman, at p. 52. 27 Therefore, the elements necessary to prove a charge of discharging a firearm with intent to wound are as follows: 1. proof that the accused actually intended to wound the complainant and not scare or threaten him; and 2. a wound resulting to the complainant.

CONCLUSION: [79] Courts are often faced with the difficult task of trying to infer an accused’s subjective intent after the fact. Thus, as pointedout in the excerpt above, it is sometimes necessary, and acceptable, for the trier of fact “to consider that a person generally intends thenatural consequences of his actions”. Here, I am prepared to, and do, rely on that general doctrine. However, I am prepared to, and do,go further. I am satisfied beyond a reasonable doubt, on the evidence of R.L. himself, that he did in fact intend to wound GregoryToogood.

In coming to this conclusion, I specifically note a number of matters, in addition to what has already been referred to. [80] Returning to the comments R.L. made before the shooting, I have discounted the evidence of A.D., the friend of R.L., whogave evidence generally respecting comments R.L. made prior to the shooting, tendered to establish that some deliberation and planninghad gone into shooting the officer himself, as opposed to perhaps shooting out a window. It was obvious that A.D. did not want to betestifying against a person he had grown up with and still considered a friend.

He would preface his remarks by stating that “I believe

what he said ...”, or state that “we were just kidding”, etc. It was obvious that this individual was trying very hard not to implicate his friend. When asked in cross-examination if it was possible that he had been drinking at that time, and that perhaps his memory was in error, and that he wanted to cooperate with the police because, if he didn’t, they might suspect he did it, he almost leapt out of his chair in replying in the affirmative to each of those suggestions. All in all, A.D. did not want to implicate his friend.

I find that he was speaking the truth when, after being shown his statement, he confirmed that the words of his friend were “I should shoot him”. [ 81 ] Although in and of itself not sufficient to ground criminal liability, the comments that R.L. made to his friends as to shooting the officer support the inference that he did precisely that. [ 82 ] As to the degree of planning that took place, as mentioned earlier, that does not in and of itself prove the intent of R.L.

It does show, however, that R.L. put a lot of preparation into what he did the night of January 16, 2006, and it is noteworthy that he moved into action as soon as he felt he had an alibi, that is, his friends leaving the house on short notice. [ 83 ] As discussed earlier, the fact that R.L. actually hit the officer is supportive of the inference that I can draw that the shot hit the officer because R.L. wanted the shot to hit the officer. [ 84 ] The most significant evidence of intent is given during the interview with the boss, the only time that R.L. told anyone what had happened.

During that discussion, he made it abundantly clear that he intended to shoot Cst. Toogood. [ 85 ] Although I have broken down this decision into various specific segments, I have done that as this particular case lent itself to analysis in that fashion. The decision I have arrived at, however, is not based on such a segmented approach. The law is clear that the decision must be based on all the evidence, and that guilt can only be established if, based on all the evidence, the trier of fact is satisfied beyond a reasonable doubt of the guilt of the accused.

The evidence satisfies me beyond a reasonable doubt that when R.L. discharged the firearm, he clearly had the forearm of Cst. Toogood in his view. I am satisfied beyond a reasonable doubt that he then fired the gun with the intent to wound Cst. Toogood. [ 86 ] Applying the test set out earlier in this decision, and in looking at all the evidence as a whole, I am satisfied that the Crown has established all the essential elements of this offence beyond a reasonable doubt. I find R.L. guilty. Dated at Carrot River, Saskatchewan, this 22 nd day of July, 2011. B. Morgan, J