Her Majesty the Queen - v. -, 2019 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 43 Date: July 29, 2019 Information: 991047398 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jacob Badger Appearing: A. Breker For the Crown T. Hagey For the Accused DECISION ON ADMISSIBILITY OF CERTAIN EVIDENCE M. HINDS , J INTRODUCTION [ 1 ] The accused, Jacob Badger (“Mr. Badger”), is charged that on or about April 10, 2018, at or near Regina, he did attempt to murder Jody Lee Ray while using a firearm and that he breached a condition of an Undertaking contrary to section 239(1)(a.1) and 145(3) of the Criminal Code .

[ 2 ] During the course of the trial the evidence established that Mr. Badger was also known as “Jake from State Farm” to members of the Ray family. A voir dire was conducted with respect to the admissibility of statements made by the complainant, Jody Ray. These statements were: 1. After a shooting and during the course of a 911 call made by Shannon Ray (Jody’s mother) she asked “Who, who shot you?” Jody Ray’s response was “Fucking Jake from State Farm.” 2. Jody Ray was injured. Emergency Medical Services personnel attended to him, put him on a gurney and took him to an ambulance situated outside his residence.

At this same time Jacob Badger was standing outside the residence near the ambulance. Mr. Badger had recently been arrested by police. As Jody Ray was about to be loaded into the ambulance Constable Manz hear him to say “That’s the fucker who shot me.” Constable Gruber heard Jody Ray say “That’s the guy who shot me.” Both officers testified that Jody Ray was looking directly at Jacob Badger when he said those words. [ 3 ] Jody Ray testified that he did not know who shot him. He testified that he was too drunk to remember.

He recalled hearing a knock at the front door of his residence in the early morning hours of April 10, 2018. He testified that he opened the front door and initially encountered a woman who began asking him some questions. After he asked her what she wanted, he saw two guys who were “masked up” come from the south side of the residence to the front doorway. One of the men had a double barrelled shotgun which he pointed in front of Jody Ray’s face. Jody Ray grabbed the gun barrel with his right hand. The gun went off and he sustained gunshot wounds to his right hand, legs and chest.

After the shooting he recalled going to his room in the residence and telling his mother to call an ambulance. The next thing he recalled was waking up in a hospital after surgery. Mr. Ray testified in-chief that he could not recall being asked any questions by his mother after being shot. In addition, Jody Ray did not recall being taken out of his residence to an ambulance. [ 4 ] The Crown takes the position that the two statements made by Jody Ray should be admitted into evidence as res gestae or the spontaneous utterance exception against the admission of hearsay evidence.

The defence opposes the admission of these two statements. [ 5 ] I have found that the two statements made by Jody Ray in the early hours of April 10, 2018 should be admitted into evidence under the res gestae or spontaneous utterance exception to the rule against hearsay evidence. FACTUAL BACKGROUND [ 6 ] On April 9 - 10, 2018, Jody Ray lived at a two-bedroom home located at 1936 Winnipeg Street with his mother, Shannon Ray, and his sister, Brandie Ray. Jody occupied one of the rooms and Shannon occupied the other bedroom.

Jody Ray spent the evening of April 9 and early morning of April 10, 2018 in the company of his then girlfriend, Shaylena Kay. [ 7 ] The evidence reveals that during the evening of April 9, 2018, several people were at 1936 Winnipeg Street.

These people included: Jody Ray, Shannon Ray, Brandie Ray and her friend, Jacob Badger, Thomas Fraser and Jessie Ray. [ 8 ] Brandie Ray left the residence earlier in the evening and spent some time with her friend, Jacob Badger, at Triple Eight Pizza and the Milky Way before the two returned to 1936 Winnipeg Street where they listened to music in Shannon Ray’s room. [ 9 ] There are varying accounts of who went to Casino Regina and for what length of time.

Shannon Ray testified that she alone went to the Casino for about two hours and returned around 3:00 a.m. Shaylena Kay testified that Shannon Ray, Jody Ray and herself went to Casino Regina for a couple of hours and returned around 3:00 a.m. Jody Ray testified that Shannon Ray, Shaylena Kay, Brandie Ray, Thomas Fraser, Jessie Ray and himself went to the Casino around 8:00 a.m. and returned to 1936 Winnipeg Street around 10:00 or 10:30 p.m. Overall I find Ms. Kay’s recollection of events to be more credible and reliable than that of Shannon Ray and Jody Ray.

I find that Shannon Ray, Jody Ray and his then girlfriend, Shaylena Kay, went to Casino Regina for a couple of hours and returned around 3:00 a.m. [ 10 ] When these three individuals returned to 1936 Winnipeg Street, Jody Ray and Shaylena Kay went to Jody’s bedroom. Shannon Ray went to her bedroom where she found her daughter, Brandie Ray, and Jacob Badger. Shannon Ray observed Jacob Badger to be talking to Brandie. Jacob Badger also used his phone. Approximately five to ten minutes later Jacob Badger left the residence. Jacob Badger said that he had to leave and would be coming back.

Approximately ten to fifteen minutes later there was a knock at the door of 1936 Winnipeg Street. [ 11 ] Both Shannon Ray and Jody Ray made their way to the front door. Jody Ray told his mother he would answer the door. Shannon Ray returned to her bedroom. Jody Ray testified that he told his mother not to answer the door. He thought one of his buddies, Darren was at the front door. Jody testified that he then opened the front door and observed a woman on the front step asking him questions. Jody asked the woman what she wanted.

Jody testified at that moment in time he observed two masked guys come from the south side of the house to the front door. Jody saw what looked like a double barrelled shotgun in front of his face and he grabbed the barrel with his right hand. On April 10, 2018 shortly before 3:23 a.m. Jody Ray was shot inside the residence at 1936 Winnipeg Street; he sustained gunshot injuries to his right hand, abdomen and right leg. [ 12 ] Jody Ray returned to his room. He testified that he recalled telling his mother to call an ambulance.

Shortly after the shooting Shannon Ray placed a call to a 911 operator who in turn transferred her to an emergency services operator. These calls were recorded and entered into evidence as Exhibit P-5. A transcript of P-5 is set out in Appendix I. A portion of the telephone call between the Emergency Services Operator and Shannon Ray is set out below. Emergency Services: Okay ma’am tell me exactly what happened. Shannon: I don’t know. Somebody came to the door. We came to the door. Another voice: Hurry up. Shannon: Shut up. Went to the door and he came bursting in and shot my son.

Emergency Services: They what, sorry? Shannon: We answered the door. Emergency Services: Right. Shannon: They pushed their way in the house and shot my son. Emergency Services: They shot your son? Shannon Ray: Yes. Emergency Services: K. Are you with your son right now? Shannon Ray: Yah, he is here right now. Emergency Services: Okay. We’ve got help notified ma’am, how old is your son? Shannon Ray: 31. Emergency Services: Okay. Shannon Ray: Please he has lost a lot of blood. Emergency Services: Is he awake? Shannon Ray: Yah, he’s awake.

Emergency Services: Is he breathing? Shannon Ray: Yes. Emergency Services: Okay, I am going to ask you a couple questions while we’ve got help on the way, okay? Shannon Ray: Okay. Emergency Services: When did this happen? Shannon Ray: Who, who shot you? Another Voice: Fucking Jake from State Farm. [emphasis added] [ 13 ] Shannon Ray testified that she asked the above question to her son Jody Ray and that he answered her. [ 14 ] Constable Gruber was dispatched to 1936 Winnipeg Street. He arrived at 3:23 a.m. He entered the residence and located Jody Ray in the northwest bedroom.

He observed Jody Ray to be bleeding from his right leg, abdomen and to have a significant injury to his right hand. Constable Gruber began to provide primary care to Jody Ray including applying a tourniquet to Jody Ray’s right leg. Emergency Medical Service (EMS) personnel took over care of Jody Ray at 3:40 a.m., however, Constable Gruber remained with Jody Ray when he was taken in a gurney to an ambulance situated outside the residence. After Emergency Medical Services personnel stabilized Mr.

Ray they took him out of the house on a gurney feet first and moved towards an ambulance parked on the street in front of the residence. As he and Mr. Ray exited the house Constable Gruber observed Jacob Badger come out from the south side of the house whereupon Constable Manz took control of Mr. Badger and walked him to the sidewalk nearby where EMS personnel were loading Mr. Ray into the ambulance. Constable Gruber observed Mr. Ray to sit up and on two occasions say “That’s the guy who shot me.” Mr. Ray was looking directly at Mr. Badger when he made this statement. Constable Gruber testified that Mr.

Ray appeared to be startled by Mr. Badger’s presence, almost as if he were scared. [ 15 ] Constable Manz was also dispatched to 1936 Winnipeg Street. On scene he learned that the shooting suspect went by the Facebook nickname of “Jake from State Farm”. He looked at the Facebook photograph of Jake from State Farm and compared it to a photograph of Jacob Badger on the Police Information Management System (IEIS). It was a match. At 3:45 a.m. Constable Manz observed Jacob Badger walking along the south side of the residence. He told Jacob Badger to come to him. Jacob Badger complied.

Constable Manz observed a dark red substance on Jacob’s shoe. He arrested him for a weapons offence. Moments later he observed Jody Ray being loaded into an ambulance. Constable Manz testified that Jody Ray and Jacob Badger and he were about five to ten yards away from each other. Jody Ray was facing Jacob Badger.

He then heard Jody Ray state “That’s the fucker who shot me.” Constable Manz then arrested Jacob Badger for attempted murder while using a firearm and read him his rights and warnings at 3:48 a.m. [ 16 ] During the evening and early morning of April 9 -10, 2018, Jody Ray consumed alcohol and smoked marijuana. THE LAW OF HEARSAY AND THE RES GESTAE EXCEPTION [ 17 ] In R v S.A.B. , 2018 SKQB 204 at paras 21-23 [S.A.B.] , Justice MacMillan-Brown provided the following

summary of the law on hearsay: [21] A traditional articulation of the hearsay rule can be found in David Watt, Watt’s Manual of Criminal Evidence , 2017 (Toronto: Thomson Reuters, 2017) [ Watt on Evidence ] at 364: Evidence of a statement made to a recipient by a declarant , who is not a witness in the proceedings, may or may not be hearsay. It is hearsay and presumptively inadmissible, when the purpose of the evidence is to establish the truth of the contents of the statement .

It is not hearsay, hence not admissible under the rule, where the purpose of the evidence is not to establish the truth of the contents of the statement, rather, only to prove that the statement was made. Hearsay also includes an out-of-court statement made by a witness who testifies in court, if the statement is offered to prove the truth of its contents. [22] Thus, distilled down to its simplest definition, hearsay evidence is evidence of an out-of-court statement that is tendered for the

truth of its contents. [23] Courts have long recognized the dangers of relying upon hearsay evidence as opposed to real evidence and viva voce testimony ofwitnesses. In R v Khelawon, 2006 SCC 57 at para 2, [2006] 2 SCR 787 [Khelawon], for example, the Supreme Court describedthe central rationale for excluding hearsay evidence as follows: 2 ... While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsaystatements is the general inability to test their reliability.

Without the maker of the statement in court, it may be impossible to inquire intothat person's perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations ordeliberate falsehoods may go undetected and lead to unjust verdicts.

Hence, the rule against hearsay is intended to enhance the accuracyof the court’s findings of fact, not impede its truth-seeking function. … [18] As noted by Justice MacMillan-Brown at paragraphs 24-25 of S.A.B., the Supreme Court of Canada in Khelawon acknowledged that a number of exceptions to the rule against hearsay evidence exist.

One such exception is resgestae or spontaneous utterances (S.A.B. at para 26). [19] In McWilliams’ Canadian Criminal Evidence, 5th Edition (Toronto: Thomson Reuters, 2019) at 7:120:20 [McWilliams], the authors summarize the res gestae exception as follows: “a statement is admissible as evidence ofany matter stated if the statement was made by a person so emotionally overpowered by a contemporaneous event that the possibility ofconcoction or distortion can be disregarded.” Expanding upon this, the authors note, at 7:120:20, that there are two key criteria to thisexception: “(1) that the statement be made contemporaneous to an unusual, overwhelming event that (2) left the declarant (at the time ofthe declaration) under pressure or emotional intensity which would give the guarantee of reliability.” [20] In R v Trotchie, 2018 SKQB 129 at para 54, Justice Scherman set out the rationale behind admitting into evidence spontaneous utterances and actions, including that they are: (

i) not compromised by the passage of time and failing memory; (ii) the evidence surrounding the actions or utterances gives the trier the opportunity to assess whether the speaker’s or actor’s ability toaccurately observe and relate was compromised; and (iii) the spontaneity of the utterances or actions make it less likely they are the product of guile, some ulterior motive or of strategicreflection of the speaker. [21] When determining whether a statement qualifies as a spontaneous utterance, judges have looked to a number of factors forconsideration.

Whether a statement is contemporaneous to the event in question depends upon the circumstances of each particular case(S.A.B. at para 27). Further, exact contemporaneity is not required (S.A.B. at para 26).

A judge must consider the circumstances in whichthe statement was made “in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts ofthe victim, so that his utterance was an instinctive reaction to that event” R v Andrews (1987), 84 Cr App R 382 (HL) at page 391[Andrews] as quoted in McWilliams at 7:120:20. [22] Whether a statement is spontaneous is also dependant upon the circumstances in which it was made (S.A.B. at para 27).

Factorsrelevant to spontaneity include the passage of time and any intervening events R v Liard, 2015 ONCA 414 at para 63, 327 CCC (3d) 126.The statement must be “so closely associated with the event which has excited the statement, that it can be fairly stated that the mind ofthe declarant was still dominated by the event” (Andrews at page 391 as quoted in McWilliams at 7:120:20).

While the statement may bein response to a question, there is a requirement that it be unsolicited in that it cannot be a response to a leading question R v Simpson,1999 CarswellNWT 24 (WL) at para 11, [1999] NWTJ No 20 (QL) (NWT SC) [Simpson]; McWilliams at 7:120:20; R v Hall, 2018MBCA 122 at para 47.

A trier of fact “needs to consider the atmosphere in which the questions are asked and whether or not the personresponding to the questions is responding to the pressure of the questions or the pressure of the event” R v Wade Kapakatoak, 2018NWTTC 10 at para 24 [Kapakatoak]). [23] The authors of McWilliams refer to a final factor as suggested in the Andrews case, and that is the absence of “special features likely to result in error by the declarant, such as drunkenness” (McWilliams at 7:120:20). The authors

go on to write that it is uncertain whether this criterion has been adopted in Canadian law, but there are several Canadian cases which suggest that it has been. I am of the view that the declarant’s drunkenness or intoxication must be considered. [ 24 ] In Simpson at para 16, Justice Schuler of the Supreme Court of the Northwest Territories held that “evidence of intoxication is relevant both at the stage of determining whether the statements are admissible and, if they are admitted, again at the stage of determining the weight to be given to them”.

Justice Schuler added, at paragraph 16, that “evidence of intoxication goes to the possibility of error of the evidence.” In Kapakatoak , a sexual assault complainant was found to lack the capacity to consent because of her intoxication (at para 45). For that reason, Judge Malakoe determined that her intoxication was a factor that weighed in favour of not admitting her spontaneous utterances because it called into question the reliability of the utterance ( Kapakatoak at para 41 ). [ 25 ] Intoxication will not always affect the reliability of a spontaneous utterance R v P.(J.F.) , 2014 NWTSC 14 .

The focus should be on the surrounding circumstances of the event and whether the intoxication of the declarant is such that it “gives rise to a real possibility of error” ( Hall at para 41 ). ISSUES [ 26 ] The issues before the court are as follows: 1. Were the statements made by Jody Ray contemporaneous to an unusual, overwhelming event? 2. Was the declarant, Jody Ray (at the time of the statements) under pressure or emotional intensity which would give the guarantee of reliability? 3. Was there an absence of special features likely to result in error by the declarant, Jody Ray such as drunkenness?

ANALYSIS Were the statements made by Jody Ray contemporaneous to an unusual, overwhelming event? [ 27 ] In this case, after answering a knock on his front door in the early morning hours of April 10, 2018 at 1936 Winnipeg Street, Jody Ray was confronted by two men who attempted to go into his residence. One of the men was armed with a shotgun which was pointed at Mr. Ray. Jody Ray grabbed the barrel of the gun and sustained shotgun injuries to his body shortly before 3:23 a.m. I find the intrusion, shooting and resulting injuries to be an unusual and overwhelming event. Mr. Ray did not anticipate this event.

He simply reacted to it. In the very short time that followed the shooting Shannon Ray asked her son who shot him. Without any hesitation Jody Ray answered “Fucking Jake from State Farm” (Jacob Badger). I find this statement to be made contemporaneously with the intrusion, shooting and injuries (event). [ 28 ] Jody Ray lost some blood and was in pain as a result of the gunshot injuries he sustained. While he received first aid at his residence, his pain continued until he was eventually treated at the Regina General Hospital later that morning.

I find that the overwhelming event continued for some time following the intrusion and shooting. The facts reveal that Jody Ray made a second statement in relation to Jacob Badger at 3:45 a.m. approximately 22 minutes following the shooting. This time Jody Ray did not identify the shooter by name, rather he looked at Jacob Badger and said the words (or words to the effect) “That’s the guy who shot me.” This statement was not prompted by a question and was a spontaneous utterance by Mr. Ray while he was about to be loaded into the ambulance.

I find this statement is “so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event”. As a result, I find this statement to be made contemporaneously with the intrusion, shooting and injuries (event).

Was Jody Ray (at the time of the statements) under pressure or emotional intensity which would give the guarantee of reliability? [ 29 ] The initial statement “Fucking Jake from State Farm” was made in response to a straightforward question put to him by his mother. This statement was made in the immediate aftermath of two men rushing the front door of the Ray residence, one of whom held, pointed and discharged a shotgun at Jody Ray. In addition, this statement was made by Jody Ray a very short time after he sustained shotgun wounds to his body.

Those wounds included a traumatic injury to his right hand which required surgery. In addition Mr. Ray had several other buckshot entry points on his chest, abdomen and right leg.

I find that Jody Ray made this initial statement under pressure and emotional intensity which provides the guarantee of reliability. [ 30 ] I also find that the pressure and emotional intensity that Jody Ray experienced as a result of the intrusion, shooting and injuries persisted for some time, including at 3:45 a.m. when Jody Ray made a second statement in relation to Jacob Badger, “That’s the guy who shot me.” I find that Jody Ray made this second statement under pressure and emotional intensity which provides the guarantee of reliability.

Was there an absence of special features likely to result in error by the declarant, Jody Ray such as drunkenness? [ 31 ] Jody Ray testified that he was pretty drunk that night. He estimates that prior to being shot he consumed 10 ounces of vodka, ten or eleven beers and smoked four joints containing two grams of marijuana. He further testified on cross-examination that he was pretty sure he was at his limit and that if he drank any more alcohol or smoked any more marijuana, he would have passed out. Mr. Ray testified that he does not recall making either of the two statements as referenced above.

However, I would note, and consider it significant, that after he was shot he had the presence of mind to ask his mother to call for an ambulance. [ 32 ] Shannon Ray testified in-chief that before Jody was shot he was kind of drunk , he had run out of booze and was going to go to bed. After Jody Ray was shot and during the 911 telephone call (Exhibit P-5), Shannon Ray advised Emergency Services that her son was awake, breathing, bleeding and alert.

On cross-examination Shannon Ray maintained that before she left the house to go to the casino on her own Jody Ray had been drinking alcohol and that he was wandering around the house. When she returned from the casino she observed that Jody was in his bedroom with his girlfriend. She did not think that he had any more alcohol to drink. [ 33 ] Jody’s sister, Brandie Ray, testified on cross-examination that during the evening of April 9, 2018, Jody had been drinking hard alcohol. She further testified that when Jody drinks alcohol he drinks for days.

Brandie thought Jody was drunk that night because she observed him to stagger when he walked and he was saying the same “stuff” over and over. [ 34 ] Shaylena Kay was Jody Ray’s girlfriend at the time of the shooting. In April 2018 Shaylena lived with Jody at 1936 Winnipeg Street. She recalled that she and Jody went to the casino with Shannon. Shaylena testified in-chief that she and Jody were drinking alcohol at the residence and at the casino. She added that she and Jody were drunk but not “crazy drunk ” and that she can remember what happened that night.

When they returned to the residence they also used some weed (marijuana). On cross-examination Shaylena Kay testified that she and Jody drank either a 40 ounce or 26 ounce bottle of hard liquor that night. She thought that Jody drank more than her. She estimated that Jody drank about four shots of alcohol to every one shot of alcohol that she drank. She also testified on cross-examination that she thought that Jody had two or three beers at the casino and they smoked a joint or two of marijuana.

She smoked more marijuana than he did. [ 35 ] Constable Gruber provided some primary care to Jody Ray shortly after arriving at the residence at 3:23 a.m. Although EMS personnel took over the care of Mr. Ray, Constable Gruber remained with Mr. Ray in the ambulance and at the Regina General Hospital until 7:00 a.m. when his shift ended. Constable Gruber testified that Jody Ray was very aware of his surroundings and was in a lot of pain. He was grunting, shaking and his actions were consistent with shock and having just been shot. He further testified that Mr.

Ray’s conversation was coherent. [ 36 ] Exhibit D-1 is a one page medical record of Jody Ray obtained from the Regina General Hospital entitled “Patient Results”. Counsel for the defence highlighted in green marker the ethanol level of Mr. Ray which states “47.6, Legal Driving Limit - 17.4 mmol/l.”

[ 37 ] It is clear that during the evening of April 9 th and the early morning hours of April 10, 2018 Jody Ray consumed some alcohol and ingested some marijuana. The central issue in this case is whether at the time of the shooting (shortly before 3:23 a.m.) and during the approximately 22 minutes which followed (3:45 a.m.) Jody Ray was drunk or intoxicated to such an extent that it “gives rise to a real possibility of error”.

Put another way, was Jody Ray’s perception distorted by his drunkenness or intoxication? [ 38 ] In this case I must examine the sobriety of Jody Ray prior to and at the time of the shooting and in the approximately 22 minutes that follow. Jody Ray testified that he was about to go to bed when he heard a knock at the front door of the residence. He went towards the front door where he encountered his mother Shannon. He testified that he thought the person at the door was one of his buddies, Darren. He told his mother not to answer the door. He then proceeded to open and answer the door.

Shannon Ray has a somewhat different recollection of this event. She also heard the knock at the front door. She thought it was Jake (Jacob Badger) who had said he was coming back to the residence. Shannon Ray testified that Jody pushed her back from the front door and told her not to answer it as he had a “bad feeling”. In this case it is clear that on either account of the time before the front door was opened , Jody Ray heard the knocking at the front door from his bedroom, just as his mother did. He then got up and physically went to the front door just as his mother did.

He communicated with his mother to the effect that she was not to answer the door, he would. I find that Jody Ray’s hearing, his ability to get up and walk to the front door in a timely fashion and his and ability to communicate with his mother are consistent with a functioning mind and body. His recollection of the events prior to opening the front door was not distorted. [ 39 ] Jody Ray’s recollection of the events after the from door is opened accords with his mother’s evidence. Both initially recall seeing a woman at the front door.

He then saw two guys come from the south side of the house up to the front door with a gun. His mother also recalled seeing two guys come up to the front door with a gun. [ 40 ] I also find it odd that Mr. Ray has a very precise memory of what alcohol he had to drink and marijuana he consumed prior to the shooting and yet is unable to say who shot him or recall anything after he went to his room and told his mother to call an ambulance.

His next memory is waking up in the hospital following a surgery. [ 41 ] I do not find the descriptions of Jody Ray’s sobriety by his family and girlfriend to be particularly helpful. Shannon Ray described Jody Ray as being “kind of drunk”. She also told the Emergency Services operator that Jody was alert following the shooting. Brandie Ray described Jody Ray as being “drunk that night” although it is unclear when she last saw her brother prior to the shooting. Shaylena Kay described her and Jody as being “drunk, but not crazy drunk”. [ 42 ] I found the evidence of Constable Gruber to be helpful.

He testified that Jody Ray was very aware of his surroundings and was in a lot of pain. He was grunting, shaking and his actions were consistent with shock and having just been shot. He further testified that Mr. Ray’s conversation was coherent. [ 43 ] Exhibit D-1 reveals that at 4:04 a.m. on April 10, 2018 Jody Ray’s ethanol level was 47.6 mmol/l. The exhibit also states “Legal Driving Limit - 17. 4 mmol/l. Defence counsel invites me to conclude that Mr. Ray was over 2.5 times over the legal driving (blood alcohol concentration) limit.

The Crown takes the position that this exhibit merely shows Jody Ray had been drinking alcohol but is not evidence he was drunk and his powers of observation were impaired. Given the evidence available to me at this time, I agree with the position taken by the Crown. [ 44 ] I find that prior to the shooting Jody Ray had consumed alcohol and marijuana. Considering all the evidence before me I am unable to conclude that Jody Ray was drunk or intoxicated such that this would result in him making an error in his identification of the person who shot him. CONCLUSION

[ 45 ] I find that in the circumstances of this case, the two statements made by Jody Ray in the morning of April 10, 2018 are admissible pursuant to the res gestae exception to the rule against hearsay. The weight that I will ascribe to Jody Ray’s statements, however, is a matter for my decision on the trial proper. _________________ M. Hinds, J APPENDIX I 911: 911 what is your emergency? Shannon Ray: Cops please 1936 Winnipeg Street. There is somebody here with a gun, please hurry.

Hurry, hurry, hurry 911: What is Shannon Ray: I think my son got shot, hurry, hurry, 911: K Shannon Ray: 1936 Winnipeg 911: 1936 Winnipeg Street, what is the phone number? Shannon Ray: Yes. Please, hurry, hurry they are still in the house 911: Ok ma’am what is the phone number you are calling from? Shannon Ray: 306-519-0477 911: And you think somebody has been shot? Shannon Ray: Yaah 911: Ok and it is your son? Shannon Ray: Yah, I don’t know what’s happened I closed my bedroom door 911: Ok, stay on the line I will get you through to the ambulance

Shannon Ray: Get me the ambulance oh my god, fuckin little bitch (Transfer to Emergency Services) Emergency Services: What is the address?

Shannon Ray: 1936 Winnipeg Street Emergency Services: 1936 Winnipeg Street, what is the phone number you are calling from Another voice: Fuck Shannon Ray: 306-519-0477 please help I need an ambulance, I need an ambulance, please hurry Emergency Services: Okay ma’am tell me exactly what happened Shannon: I don’t know somebody came to the door, we came to the door Another voice: Hurry up Shannon: Shut up, went to the door and he came bursting in and shot my son Emergency Services: They what, sorry Shannon: We answered the door Emergency Services: Alright Shannon: They pushed their way in the house and shot my son Emergency Services: They shot your son Shannon Ray: Yes Emergency Services: K, are you with your son right now?

Shannon Ray: Yah, he is here right now

Emergency Services: I have got help notified ma’am, how old is your son? Shannon Ray: 31 Emergency Services: Okay Shannon Ray: Please he has lost a lot of blood Emergency Services: Is he awake? Shannon Ray: Yah he is awake Emergency Services: Is he breathing? Shannon Ray: Yes Emergency Services: Okay I am going to ask you a couple questions while we’ve got help on the way, okay Shannon Ray: Okay Emergency Services: When did this happen? Shannon Ray: Who, who shot you?

Another Voice: Jake, Jake from State Farm Shannon Ray: Quit hanging around with that little fucker Emergency Services: Okay ma’am is the assailant still nearby Shannon Ray: I don’t know, I am came running in the bedroom and I fucking hid Emergency Services: Is there any serious bleeding? Shannon Ray: Yes he is bleeding all over the floor

Emergency Services: Is he completely alert? Shannon Ray: Pardon me Emergency Services: Is he completely alert, your son Shannon Ray: Yes he is alert he is holding his hand, his hand is shot off Emergency Services : Okay and was that the only part of his body that was shot? Shannon Ray: Yah I guess yes that was the only part of his body that was shot eh Emergency Services: Is there more than one wound that you guys can see there? Shannon Ray: Pardon me Emergency Services: Is there more than one wound? Shannon Ray: Yah I think it’s his hand Emergency Services: Just his hand though?

Shannon Ray: Just his hand Emergency Services: Okay Shannon Ray: His hand right? Yah just his hand Emergency Services: Just the hand ok Shannon Ray: Yep Emergency Services: We’ve got lots of help on the way over there alright so we’ve got the paramedics on the way to help you now Shannon Ray: Okay Emergency Services: Stay on the line I’ll tell you exactly what to do next

Shannon Ray: K Emergency Services: Now I am going to tell you how to stop the bleeding on his hand there Shannon Ray: He already has a towel on there Emergency Services: When you say he’s got it tied on a tourniquet on? Shannon Ray: Yah he’s got a towel just wrapped around his hand Emergency Services: Sure ok so listen carefully I am going to give you some more instruction there.

If he bleeds through that towel don’t lift it up to look just add another one to it okay Shannon Ray: Okay Emergency Services: So we are just updating the paramedics with that information like I said just make sure he is pressing down firmly on the wound and don’t lift it up to look okay Shannon Ray: Okay Emergency Services: Reassure him we’ve got help coming Shannon: K are they coming? Emergency Services: Yes they on their way Shannon: Are they actually coming?

Emergency Services: Yep and from now on don’t let him have anything to eat or drink it might make him sick or cause further problems Another voice (?): Fucking people Another voice (?): It’s all my fault (?) Shannon Ray: It’s all his fault well quit fucking hanging around with the fucking __ (?) Emergency Services: They are coming as fast as they can ok. Now are you with him right now?

Shannon Ray: No he is in the bedroom Emergency Services: He is in the bedroom ok so if you could just tell whoever is looking after him there to not move him unless is necessary Shannon Ray: Yes the ambulance is coming Emergency Services: Just tell him to be still and wait for help to arrive Shannon Ray: His, his leg got shot too Emergency Services: His leg got shot too Shannon Ray: Yep Emergency Services: Okay we’ll update them with that information okay Shannon Ray: Umhm Emergency Services: And is he holding pressure on his leg as well?

Shannon Ray: Yes he is Emergency Services: He is okay that’s good and do you know where on his leg Shannon Ray: I don’t know we can’t see Emergency Services: We’re not sure k that is okay like I said if somebody is in there and we’re just holding pressure on the wounds there alright Shannon Ray: Yah well when is the ambulance going to be here Emergency Services: They are going to get there as quick as they can we have the police on the way as well there though okay Shannon Ray: Okay Emergency Services: Due to the nature of the call

Shannon Ray: Can they going to hurry up before he bleeds to death Emergency Services: Yep they are going to come as fast as they can so in the meantime do your best to reassure him help is coming and don’t let him have anything to eat or drink might it make him sick or cause further problems and again Shannon Ray: Can you please hurry Emergency Services: They are coming as fast as they can I know it feels like it’s it’s taking a really long time it’s only been a couple minutes so like I said Shannon Ray: Okay can we just pretend somebody is wanted here and you guys could come here faster Emergency Services: Pardon me Shannon Ray: Please hurry Emergency Services: They are coming as fast as they can Shannon Ray: You guys were a lot faster before Emergency Services: Pardon me Shannon Ray: Oh there’s a cop Emergency Services: Are they there with him?

Shannon Ray: It’s my kid, my son got shot, he’s in the bedroom, it’s just me and my kids but the guys came in and pushing and some girl said Emergency Services: Okay ma’am Shannon Ray: The police are here Emergency Services: I will let you chat with them there ok Shannon Ray: Okay thank you Emergency Services: You’re welcome you take care

Shannon Ray: Okay yah thanks Emergency Services: Bye bye Shannon Ray: Bye