Her Majesty the Queen - v. -, 2019 SKPC 65

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 65 Date: November 18, 2019 Information: 991047398 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jacob Badger Appearing: Mr. A. Breker For the Crown Ms. T. Hagey For the Accused TRIAL DECISION 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 by discharging the firearm at Jody Lee Ray and that he

breached a condition of an undertaking contrary to sections 239(1)(a.1) and 145(3) of the Criminal Code . [ 2 ] Around 3:00 a.m. on April 10, 2018 several members of the Ray family and a couple of friends were inside the Ray home located at 1936 Winnipeg Street, in Regina. Shannon Ray, her daughter Brandie Ray and Brandie’s friend, Mr. Badger were in one room on the main floor of the home. Mr. Badger was known as “Jake from State Farm” to members of the Ray family. The complainant, Jody Ray and his friend Shaylena Kay were in the other room. Jessie Ray and Thomas Fraser were also in the house.

Between 3:10 and 3:15 a.m. the accused, Mr. Badger left the house. He told Brandie Ray that he had to leave and would be coming back. Approximately ten to fifteen minutes later there was a knock at the front door of 1936 Winnipeg Street. [ 3 ] Both Shannon and Jody Ray made their way to the front door. Jody told his mother that he would answer the door. Shannon returned to her bedroom. Jody 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. Shortly before 3:23 a.m. 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. [ 4 ] Jody Ray testified that he did not know who shot him. He testified that he was too drunk to remember. Mr. Ray also testified 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. [ 5 ] In R v Badger , 2019 SKPC 43 [ Badger ] I found that the following two statements were made by Jody Ray in the early hours of April 10, 2018 and should be admitted into evidence under the res gestae or spontaneous utterance exception to the rule against hearsay evidence: 1. After the 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.

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 heard him 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.

FACTUAL BACKGROUND [ 6 ] Some of the factual background is set out in paragraphs 5 -16 of my previous decision in Badger. ADDITIONAL FACTUAL BACKGROUND Constable Manz [ 7 ] When Constable Manz initially attended the firearms call at 1936 Winnipeg Street he thinks he briefly drew his service pistol. Constable Manz practices with his service pistol at a gun range from time to time during his lunch hours. He is uncertain whether or not he had his duty gloves on when he drew his service pistol that morning. He does not wash his duty gloves very often.

[ 8 ] On April 10, 2018 at approximately 3:45 a.m. Constable Manz arrested Mr. Badger for a weapons offence. He handcuffed Mr. Badger. He and Mr. Badger were standing on the sidewalk about five to ten yards from where Jody Ray was lying on a gurney and about to be loaded onto an ambulance. Constable Manz heard Jody Ray utter the following words at Jacob Badger. “That’s the fucker who shot me.” Jody Ray and Jacob Badger were facing each other when these words were uttered. At 3:48 he arrested Mr. Badger for attempted murder. [ 9 ] Constable Manz was wearing his duty gloves when he handcuffed Mr. Badger.

His hands would have come into contact with Mr. Badger’s wrists and hands when he placed the hand cuffs on Mr. Badger. Constable Manz took Mr. Badger to the police station and placed him in a room at 4:10 a.m. Constable Gruber [ 10 ] Constable Gruber accompanied Jody Ray from the house to the ambulance situated on the street in front of the house. He observed Constable Manz take control of Jacob Badger and walk him to the sidewalk nearby where EMS personnel were loading Jody Ray into the ambulance. Constable Gruber observed Mr. Ray to sit up on his gurney and on two occasions say “That’s the guy who shot me”.

He further observed that Mr. Ray was looking directly at Mr. Badger when he made these statements. Constable Boynton [ 11 ] Constable Tyler Boynton works with the Regina Police Service Identification Unit. At 4:55 a.m. he entered the room where Mr. Badger was situated to process him for gun shot residue. Constable Boynton took sampling stubs from the top and palm of both of Mr. Badger’s hands and two additional samples from the left and right side of his face. The samples obtained from Mr. Badger were sent to the RCMP lab for analysis.

Particles characteristic of gun shot residue (GSR) were found on two samples taken from Mr. Badger’s right and left hands. No particles characteristic of GSR were found on either of the sampling stubs taken from the face of Mr. Badger. Nigel Hearns: Gun Shot Residue Expert [ 12 ] By consent of the parties and with the approval of the court Nigel Hearns was qualified and testified as an expert in the area of GSR. GSR is the chemical residue (a microscopic dust) which vents from the breach and the gun barrel of a firearm after ammunition is fired.

The GSR will deposit as a plume or cloud and settles on surfaces which are nearby to the firearm such as the hands, face and clothing of the shooter and others who are nearby. GSR settles on the skin until it is removed by wiping or washing it away. It is lost rapidly from the skin. Between two and four hours after the firearm is discharged, 90% or more GSR is lost from the skin. Beyond four to six hours often no GSR is found on the skin. There is no reasonable expectation of GSR to be found on the skin after twelve hours. Studies show that GSR remains on clothing until it is washed.

In addition, after a round is shot, the firearm itself is also contaminated with the GSR. [ 13 ] Nigel Hearns interpreted the results of the lab analysis of RCMP forensic specialist Serge Briere dated October 17, 2018. Particles characteristic of GSR were found on samples taken from Mr. Badger’s right and left hands. This means that one of the three things occurred. (1) the person sampled fired or discharged a firearm (2) the person sampled was in proximity (within one to two metres) to a discharged firearm

(3) GSR transfer, the person sampled came into contact with GSR from

another source or sources. [ 14 ] Significantly, Nigel Hearns testified that he could not identify whether the GSR found on Mr. Badgers hands was from (1) firing a firearm (2) being in proximity to someone else firing a firearm or as a result of GSR transfer. In other words he could not testify as to the source of the GSR on Mr. Badgers hands. [ 15 ] Nigel Hearns also testified on cross-examination that if a peace officer is wearing gloves and fires a firearm, the GSR will remain on the gloves until they are washed.

In addition, Nigel Hearns admitted that if an officer touches a service pistol or is wearing gloves that have been exposed to GSR and arrests and handcuffs a person there is a possibility of GSR being transferred from the officer’s gloves to the person being handcuffed. Mr. Badger [ 16 ] Mr. Badger testified in his own defence. Jacob Badger is twenty-six years of age and has nearly completed his adult grade 12 education. He has fathered five children.

On April 10, 2018 he was living at his father in-law’s residence at 1928 Montreal Street in Regina where he shared a basement suite with Janelle Cote and her children. Together, he and Janelle Cote have a 16 month’ old daughter, Bobbie. Mr. Badger testified that in the month of June 2018 his relationship with Janelle Cote was on and off. [ 17 ] On April 10, 2018, Mr. Badger had known Brandie Ray for approximately three to four months. They were friends. He went to Brandie’s home at 1936 Winnipeg Street around 3:00 p.m. It is two blocks from where he was living at 1928 Montreal Street.

He testified that he hung out and got high on weed with Brandie Ray and her mother Shannon Ray. [ 18 ] Mr. Badger went home around 5:00 p.m. to check on his child, Bobbie. Around 5:15 p.m. he went to a nearby 7-11 Convenience Store where he got some pizzas. He then returned to his home, ate pizza with his brother and a friend and watched television. Mr. Badger put his child to bed at 8:00 p.m., showered and changed his clothing. He then went to Brandie Ray’s home, arriving around 9:15 p.m. He testified that Jessie Ray, Jody Ray and Shaylena Ray were drinking when he arrived at the Ray residence. Mr.

Badger and Brandie went to her room on the main floor. They listened to music and got high on morphine. At 10:00 p.m. Mr. Badger, his friend “Youngster” and Brandie Ray left the home and went out to Triple 8 Pizza and the Milky Way Ice Cream stand. He and Brandie returned to Brandie’s home around 11:00 p.m. They returned to her room and listened to music and got high using morphine. [ 19 ] Mr. Badger testified that around 3:00 a.m. he, Brandie, Shannon, Jody, Shaylena, Jessie and Thomas Fraser were gathered upstairs near the living room. Mr.

Badger further testified that he told everyone that he was going to go home to sleep and would be back in a bit. As Mr. Badger was leaving he maintains that Shannon Ray, Jody Ray, Shaylena Kay and Jessie Ray were smoking a joint. [ 20 ] Mr. Badger left the Ray house shortly after 3:00 a.m. He testified that he went through the front door; proceeded along the side yard to the backyard and into the alley where he ran into two of his friends, Belinda Stanley and Charles Wapan.

He and his two friends stopped at a few houses to try and get a cigarette and ended up at his house where he briefly encountered Janelle Cote. Mr. Badger sat up with Belinda and Charles while they consumed a cooler. Mr. Badger testified in-chief that during this time he was using Facebook and he got a message from Jessie Ray between 3:20 and 3:25 a.m. advising him that his brother Jody Ray had been shot.

[ 21 ] Mr. Badger further testified that he, Belinda Stanley and Charles Wapan decided to go to the Ray home to see what happened. Along the way they saw police and ambulance lights. Belinda Stanley and Charles Wapan decided to turn around and leave. Mr. Badger continued on to the Ray home. He was arrested by Constable Manz at 3:45 a.m. as he was seen walking in the Ray yard. [ 22 ] During examination-in-chief, Mr. Badger denied that he was part of a group who shot Jody Ray. He testified that he lasted touched a firearm in about April 2017. [ 23 ] Jacob Badger admitted that he provided a statement to police on April 10, 2018, regarding this matter. During cross-examination Mr. Badger:

i) admitted he did not tell the police that he as soon as he left the Ray home that he ran into Belinda Stanley and Charles Wapan in the alley; ii) admitted that in his statement to police he told police that when he returned to his home he laid down with his baby and had a few smokes; iii) admitted that he did not tell the police that when he returned home, he sat up with Belinda and Charles while they drank a cooler. He held that information back. He did not think this was crucial information; iv) could not remember what Jody Ray said to him as Jody was being loaded into an ambulance.

He subsequently conceded that as per his April 10, 2018 statement to the police, he probably heard Jody say to him “Your bro shot me”;

v) was one hundred percent certain that Jody Ray did not identify him as the shooter, contrary to the testimony of the police officers. ISSUES [ 24 ] The issues before the court are as follows: 1. Has the Crown proven beyond a reasonable doubt the accused is the individual who shot the complainant, Jody Ray on April 10, 2018? 2. Has the Crown proven beyond a reasonable doubt that the accused intended to kill the complainant by discharging the firearm and thereby has attempted to commit murder? 3. If the answer to #2 is “no”, then has the Crown proven beyond a reasonable doubt that the accused is guilty of a lesser included offence? ANALYSIS

1. Has the Crown proven beyond a reasonable doubt the accused is the individual who shot the complainant, Jody Ray onApril 10, 2018? [25] The standard of proof in a criminal trial is well established. The Crown bears the onus of proving beyond a reasonable doubt all elements of each offence in order for the Court to make a finding of guilt. The onus never shifts toMr.

Badger to prove he did not commit these offences. [26] The Crown contends when the court looks at the evidence as a whole and not in a piecemeal fashion it has proved that the accused, Jacob Badger has been identified as the individual who shot Jody Ray with a shotgunon April 10, 2018. In the first place the Crown relies on the two statements made by Jody Ray on the morning of April 10, 2018 which Ihave previously ruled as admissible evidence pursuant to the res gestae or spontaneous utterance exception to rule against hearsay. Secondly, the Crown relies upon the evidentiary circumstances before the court.

Thirdly, the Crown points to the GSR being found onthe accused’s right and left hands. Lastly, the Crown submits that the testimony of Mr. Badger should not be believed. [27] On the other hand, Mr. Badger takes the position that the Crown has not established identity beyond a reasonable doubt. Counsel for Mr. Badger maintains that Mr. Badger’s testimony should be believed and that on thatbasis alone he should be acquitted. In addition, Mr. Badger’s counsel takes the position that the court should place little weight upon thetwo out of court statements made by Jody Ray on the basis that Mr.

Ray was very intoxicated and calls into question the reliability of theutterances. Thirdly counsel for the defence maintains that the Crown’s GSR expert evidence is equivocal, in that the GSR found on Mr.Badger’s hands presents three possibilities: (1) that Mr.

Badger was the shooter or (2) he was in proximity to the shooter or (3) resultedfrom GSR transfer from another source such as Constable Manz. [28] As explained in R v Klemenz, 2015 SKCA 89, 465 Sask R 134 according to the Supreme Court of Canada decision in R v W(D), (SCC), [1991] 1 SCR 742 [W(D)], there are two situations where the trier of factmust acquit: (

i) if they believe the accused, and (ii) even if they do not believe the accused, if they have a reasonable doubt about his guilt based on the evidence as a whole W(

D) listed the questions as follows, First, if you believe the accused, obviously you must acquit; Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [29] In this case I do not believe the evidence of the accused and hence I do not have to acquit him.

Overall, I found him to be less than credible on two central matters. At trial he initially testified that he could not remember whatJody Ray said to him while the two men were near each other at the ambulance. Somewhat reluctantly, he admitted on cross-examination that he thinks Jody Ray probably said to him “Your bro shot me”. He was, however, one hundred percent certain that JodyRay did not identify him as the shooter. On this point I much prefer the evidence of Constable Manz and Constable Gruber who werenearby to both men. Constable Manz testified he heard Jody Ray say to Mr.

Badger “That’s the fucker who shot me.” Constable Grubertestified he heard Jody Ray say to Mr. Badger “That’s the guy who shot me.” Both officers were sober. Mr. Badger was not. He hadbeen using marijuana and morphine earlier that evening and early morning. Overall, I found Mr. Badger’s evidence on this point to beself-serving and less than credible. [30] In addition, Mr. Badger has provided alibi evidence to the court. In particular he testified that between the time he left the Ray residence shortly after 3:00 a.m. and 3:45 a.m. when he was arrested by the police, that he was in

the company of Belinda Stanley, Charles Wapan and spoke to Janelle Cote. Although corroboration is not required for alibi evidence to be accepted, the absence of supporting witness evidence, his own impairment from morphine, and the self-serving nature of this evidence undermine the strength of the alibi evidence. As a result, I do not believe Mr. Badger’s alibi. [ 31 ] In this case I do not accept all of the evidence of Jody Ray, the victim of the crime. In particular I do not believe Jody Ray does not know who shot him.

Overall, I found Jody Ray to be a reluctant witness who did not want to implicate the accused, Jacob Badger. [ 32 ] I find that significant weight should be given to the two spontaneous utterances made by Jody Ray on April 10, 2018. I adopt my analysis of the sobriety of Jody Ray as set out in my previous decision on this matter Badger at paragraphs 31-44 . I find that prior to the shooting, Jody Ray had certainly consumed some alcohol and marijuana.

However, considering all of the evidence before me I am unable to conclude that at the time of the shooting and for 22 minutes which followed, that Jody Ray was so drunk and/or so impaired that this would result in him making an error in his identification of the person who shot him. I am reminded that on two separate occasions in the presence of different people, Jody Ray indicated that Mr. Badger was the shooter. The first instance was recorded in a 911 call, shortly after he was shot at 3:23 a.m. In response to a simple question from his mother “who, who shot you?”.

His immediate and unequivocal response was “Fucking Jake from State Farm”, the nickname Jacob Badger was known by. The second instance occurred at 3:45 a.m., approximately 22 minutes after the shooting. This time Jody Ray did not identify the shooter by name, rather from the gurney he was lying on, he looked directly at nearby Jacob Badger and said words (or words to the effect) “That’s the guy who shot me”. This statement was not prompted by any question from anyone.

I find this evidence to be compelling. [ 33 ] The circumstantial evidence reveals that Jacob Badger left the Ray residence between 3:10 a.m. and 3:15 a.m. Jacob Badger’s reason for leaving the residence is unclear. Brandie Ray testified that prior to leaving the residence Jacob Badger told her he had to go see his family and that he was coming back. Mr. Badger testified that before he left the residence, he told everyone in the house that he was going to go home to sleep and would be back in a bit. The shooting occurred 8 to 13 minutes after Jacob Badger left the residence, at 3:23 a.m.

Jacob Badger is next seen walking along the side yard of the Ray residence at 3:45 a.m. when he is arrested by Constable Manz. I find that when I consider this evidence in conjunction with the two spontaneous utterances made by Jody Ray it leads me to conclude that Jacob Badger had a unique opportunity to be involved in the shooting. I find this evidence to be compelling. [ 34 ] I must also consider the evidence involving GSR. Shortly after 4:55 a.m. Constable Boynton processed Jacob Badger for GSR. The samples taken from Mr.

Badger were subsequently analyzed at a RCMP laboratory and reveal that particles characteristic of GSR were found on two samples taken from Mr. Badger’s right and left hands. The expert, Mr. Hearn opined that there are three explanations for the presence of GSR on Mr. Badger’s hands. The GSR could be as a result of Mr. Badger being the shooter or in close proximity to the shooter or alternatively as a result of GSR transfer. In this case, given the evidence before me concerning Constable Manz’s handling of his own firearm and his subsequent actions of handcuffing Mr.

Badger, I am unable to rule out the third possibility, that the GSR found on Mr. Badger’s hands was a result of GSR transferred from Constable Manz. As a result, I find that the evidence before me does not establish that the GSR found on Jacob Badger’s hand was the result of him being the shooter or being in proximity of the shooter. I do not find this evidence compelling. [ 35 ] Based on the strength of the evidence which I do accept, namely: 1. Jody Ray made two spontaneous utterances at the scene of the shooting during which he identified Jacob Badger as the person who shot him. 2.

Jacob Badger had a unique opportunity to have taken

part in the shooting. I have determined that the Crown has proven identity beyond a reasonable doubt. I find that Jacob Badger was the person who shot Jody Ray. 2. Has the Crown proven beyond a reasonable doubt that the accused intended to kill the complainant by discharging the firearm and thereby has attempted to commit murder?

ATTEMPT TO COMMIT MURDER [36] Section 239 (1) (a.1) of the Criminal Code states: 239

(1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable … (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimumpunishment of imprisonment for a term of four years. [37] In this case, I have found that the Crown has proven beyond a reasonable doubt the actus reus of the offence, that is Mr. Badger discharged a shotgun into 1936 Winnipeg Street and that Jody Ray sustained gunshot injuries tohis right hand, chest abdomen and right leg.

I must next determine if the Crown has proven beyond a reasonable doubt that Mr. Badgerspecifically intended to kill Jody Ray. [38] In R v Carelse, 2012 SKQB 475 at paras 48 to 53, 407 Sask R 223 Mr. Justice Danyliuk provides a useful

summary of the law respecting the mens rea of the offence of attempted murder: [48] Attempted murder is made an indictable offence by virtue of s. 239 of the Criminal Code. It can be a difficult charge for the Crownto prove, given how the intent element has been defined. [49] To prove a charge of attempted murder, the Crown must prove beyond a reasonable doubt the existence of a specific intention in theaccused to kill a specific person. No lesser mens rea suffices. Lesser intent, or transferred intent, is not apposite. In this regard, the law has been settled by cases such as R. v.

Ancio, (SCC), [1984] 1 S.C.R. 225, 6 D.L.R. (4th) 577 (the sole case cited by the accused), and R. v. Logan, (SCC), [1990] 2 S.C.R. 731, 73 D.L.R. (4th) 40. The following passages from Logan areinstructive: 17 ... Ancio established that a specific intent to kill is the mens rea required for a principal on the charge of attempted murder. ... 19 As defined in Ancio, the elements of mens rea for attempted murder are identical to those for the most severe form of murder, murderunders s. 212(a)(i) [now s. 229(a)(i)]. For each, the accused must have had the specific intent to kill.

All that differs is the"consequences" component of the actus reus. Quite simply, an attempted murderer is, if caught and convicted, a "lucky murderer". ... 20 The stigma associated with a conviction for attempted murder is the same as it is for murder. Such a conviction reveals that althoughno death ensued from the actions of the accused, the intent to kill was still present in his or her mind. The attempted murderer is no less akiller than a murderer: he may be lucky − the ambulance arrived early, or some other fortuitous circumstance − but he still has the samekiller instinct.

Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence ispunishable by life and the usual penalty is very severe. [50] The Crown must also show an intersection or confluence of intent and act. Attempted murder is an inchoate crime; the underlyingspecific purpose is not completed. Harm to the object of the attempted murder intention is not a required element. The actus reus iscomplete upon the first step taken after preparation or formation of intent.

Having formed the intent to kill, upon an accused doing anyact required for the purpose of carrying out that intent, the offence is complete. See: R. v. Gordon, 2009 ONCA 170, 241 C.C.C. (3d) 388 (Ont. C.A.), leave to appeal to S.C.C. refused at (2009), 243 C.C.C. (3d) vi. (note)(S.C.C.). R. v. Marshall (1986), (NS CA), 25 C.C.C. (3d) 151, 71 N.S.R. (2d) 245 (N.S. C.A.). [51] Counsel agree on the definition of the required intent.

They differ as to whether it can be found or inferred in the currentcircumstances. [52] Determination of intent cannot always be the subject of direct evidence, as it is comprised of a state of mind. Sometimes intentionmust be inferred from conduct and context.

[53] In considering the conduct and context in this matter, the court finds guidance in the case law. Consideration of the wounds orinjuries themselves may point to, or away from, intent. The Crown cited the case of R. v. Rajanayagam, [2001] O.J. No. 393 (Ont.S.C.J.). There a victim was beaten with a bat and shot three times in the lower legs. Charges of attempted murder and aggravated assaultwere brought. The key question was that of intent. There was no evidence any of the injuries were life-threatening.

After citing Ancio thecourt said as follows: 16 The mere fact that A shoots and wounds V is not, alone, any evidence of intent to kill. For attempted murder there must be someevidence from which the trier of fact may infer that the shooter intended something more than the actual or natural consequence of hiswounding act. 17 Some gunshot wounds, by themselves alone, provide evidence of intent to kill. Other gunshot wounds do not. If A empties into V'schest a .40 calibre semi automatic Glock, loaded with expanding dum dum bullets, the shots in themselves provide some evidence ofintent to kill.

If A shoots V in the hand once with a .22 calibre pistol, the shot in itself provides no evidence of intent to kill. 18 It is impossible to draw a bright line in every case between gunshots that provide evidence of intent to kill and gunshots that do not. Itis entirely a question of degree having regard to all the circumstances including the firearm, the range, the calibre, the load, theprojectile, the number of shots, the aim, and the vital or non-vital portion of the anatomy struck by the bullet. ... 20 ...

If the gunshot wound is to a vital part of the anatomy, a common sense inference arises that the shooter intended to kill. Thusgunshot wounds to the neck or the chest or the head were held ... to support the inference of intent to kill. [Emphasis added] [39] In R v McArthur, 2013 SKCA 139, 427 Sask R 180 the Court considered whether or not the Crown had established the accused had necessary mens rea for attempted murder.

At paragraph 10 the Court stated as follows: [10] The offence of attempt to commit murder requires the Crown to prove beyond a reasonable doubt that the accused had thespecific intent to kill the victim (R. v. Ancio, (SCC), [1984] 1 S.C.R. 225). In this case, the appellant stood up, pulledout a deadly sawed-off rifle and, at close range, shot the victim in the chest near his vital organs. In our view, it was clearly a reasonableinference for the trial judge to draw, in the circumstances, that the appellant intended to kill the victim. [40] In R v Kay, 2015 SKQB 109 the Court determined that Mr.

Kay shot the victim from a distance of four to seven feet away from him, with a 12-gauge shotgun in his upper left-side chest where the heart and lungs are located. The Court concluded the proper inference to be drawn in the circumstances was that Mr. Kay intended the shot to kill the victim. [41] In R v Bako, 2016 SKPC 83 [Bako] the Court found that Mr. Bako fired a handgun from the front door through a screen door and into the home. The victim was standing approximately four feet from Mr. Bako when he firedthe gun. A bullet entered through the victim’s mid torso area in the rib cage area.

The exit wound was situated a bit lower than theentry wound and inwards towards her spine. In Bako the Court did not accept the Crown’s argument that Mr. Bako had the intention tokill the victim on the basis that she was shot in the torso. The Court stated as follows at para 55: [55] While Ms. Peequaquat’s wound can be distinguished from the wounds sustained by the victims in the McAuther, Bains, Kay andMonroe decisions, specifically that it was not a gunshot to the chest or heart region, certainly a gunshot to the mid torso region cannot beplaced in the same category as a gunshot wound to the hand or foot.

While a reasonable inference of an intention to kill may be foundbased on the location of this injury in certain cases, in reviewing all of the circumstances in this case in addition to the location of thewound, the court is unable to make this inference. [42] In Bako the Court determined that it was also reasonable to infer that Mr. Bako’s only intention was to fire is handgun into the home and not to kill the victim. ANALYSIS

[43] Jody Ray was shot at close range with buckshot. Exhibit P-2 being the medical records pertaining to Jody Ray and pages 5, 6 & 7 of Exhibit P-4 reveal he received multiple wounds. The most severe of these was a traumaticinjury to his right hand. There were also several other less severe pellet entry points on his chest, his abdomen and his right leg. Thesepellets were peritoneal and did not enter his abdomen. One pellet was found to have passed through the posterior medial aspect throughthe condyle and lodged in chondral bone of the anterior aspect of the medial femoral condyle.

It was decided it was unnecessary toremove it. Several other pellets were found in the suprapatellar pouch of his right femur and knee. [44] I find that shortly after Jody Ray opened the front door to his home, he encountered Jacob Badger who held a double-barrelled shotgun and which he pointed in front of Jody Ray’s face. Jody Ray grabbed the gun barrel with hisright hand. A single shot was subsequently fired from shotgun. No other shots were fired. While a single blast from a shot guncertainly can be lethal, in this case it was not.

The most severe injury was the gunshot wound to his right hand, which required surgicalrepair including a skin graft. There appears to be lasting nerve damage to Mr. Ray’s right hand. The remaining buckshot pellets woundswere to his chest, abdomen and right leg. These wounds were largely more superficial and required dressings. [45] In this case I am unable to infer that it was Mr. Badger’s intention to kill Jody Ray. While I am satisfied that Mr. Badger pointed a shotgun at Jody Ray’s head he did not discharge it at that moment in time. Rather, JodyRay grabbed the gun barrel with his right hand.

A brief struggle between the two men occurred and then the shotgun was discharged,resulting in a traumatic injury to Jody Ray’s right hand and additional superficial injuries to his chest, abdomen and right leg. Thewounds which were sustained by Jody Ray were not to a vital part of his anatomy. In addition, Mr. Badger did not persist in an attack onJody Ray. No further shots were fired by Mr. Badger. He left the residence.

Given the time of day (3:23 a.m), the fact that theencounter took place at the front door of a residence in which several people lived, the short duration of the encounter, and the lack ofpersistence by Mr. Badger, I am of the view that it is also reasonable to infer that Mr. Badger’s intention was to threaten or intimidateJody Ray by pointing a firearm at him and not to kill Jody Ray. In addition, I infer that Mr. Badger accidentally discharged the shotgunduring a brief wrestling match with Jody Ray. [46] After considering the evidence as a whole, I am unable to find beyond a reasonable doubt that Mr.

Badger intended to kill Jody Ray. Accordingly, I find Mr. Badger not guilty of Count 1. 3. If the answer to #2 is “no”, then has the Crown proven beyond a reasonable doubt that the accused is guilty of a lesserincluded offence? [47] I must also consider whether Mr.

Badger is guilty of a lesser included offence. [48] Section 662(1) of the Criminal Code reads as follows: OFFENCE CHARGED, PART ONLY PROVED 662(1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating itor as charged in the count, includes the commission of another offence, whether punishable by indictment or on

summary conviction, theaccused may be convicted of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved;or of an attempt to commit an offence so included. (

a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (

b) of an attempt to commit an offence so included [49] Several cases have held that the offence of aggravated assault contrary to

section 268 of the Criminal Code is a lesser included offence of attempted murder. [50] In R v Norton (1993), (SK KB), 110 Sask R 151 (QB) overturned on other grounds (1994), 125 Sask R 75 (CA), Mr. Justice Baynton acquitted the accused on the charge of attempted murder by stabbing on the basis that he was not

satisfied that the accused intended to kill the victim. Justice Baynton went on to state at para 27 as follows: [27] But he is guilty of an included but lesser offence. As a matter of law, attempted murder simpliciter does not include any otherserious assault offence, except attempting to unlawfully cause bodily harm. This principle does not apply how- ever if the “means” areset out in the indictment. Simpson v R (No. 2) (1981) (ON CA), 20 C.R. (3d) 36 (Ont. C.A.); R v Colbourne (1991),66 C.C.C. (3d) 325 (Que. C.A.). Count No. 4 in the indictment sets out stabbing as the means of committing attempted murder.

In myview, this factor, and the case of R v Wigman (1987), (SCC), 56 C.R. (3d) 289 (S.C.C.) establish that aggravated assaultunder s. 268 by endangering the life of the complain-ant by stabbing him in the stomach, is an included offence, I accordingly convicthim of this lesser but included offence. [51] In R v DeSousa, 2016 ONSC 2745 Justice Gilmore stated as follows at para 87: [87] Where the attempted murder charge is particularized, i.e. where the means by which the murder was attempted are particularizedin the charge, aggravated assault is an included offence of attempted murder: R v Norton, , (1993), 110 Sask.

R. 151(Sask Q.B.), overturned in part on other grounds, , (1994) 125 Sask. R. 75 (Sask . C.A.), –“by stabbing”; R v Adams(1989), (ON CA), 49 C.C.C. (3d) 100, 33 O.A.C. 148 (Ont. C.A.) – “by wounding him”; and R v Allard, , (1990), 36 Q.A.C. 138 (C.A. Que.) – “by stabbing”. [52] In the present case the means by which the murder was attempted are particularized in Count 1 “while using a firearm by discharging the firearm at Jody Lee Ray”. As a result I find that aggravated assault contrary to section268 of the Criminal Code is an included offence.

Aggravated Assault The Law [53] The sections of the Criminal Code relevant to these charges are as follows: 265(1) A person commits an assault when (a)without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b)he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe uponreasonable grounds that he has, present ability to effect his purpose … 268(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [54] In R v Foti, 2002 MBCA 122, 166 Man R (2d) 269 [Foti] the accused's son had bought a snowmobile from the victim's brother and had paid some money upfront.

When the victim's brother came to reclaim the snowmobile,when a payment was not immediately forthcoming, a confrontation occurred between the accused's wife and sons, the victim, and thevictim's brother. The accused awoke from a nap and assembled a shotgun and fired two shots, one of which struck the victim. Theaccused testified that he used the firearm for the protection of his family and that his intention was only to fire a warning shot. Theaccused also said he was startled and fired the first shot accidentally and then the second shot as a reflex to the recoil from the first shot.

After trial by jury the accused was convicted of aggravated assault s. 268(1) of the Criminal Code, using a firearm while committing anassault s. 85(1), discharging a firearm with intent to wound s. 244(

a) and pointing a firearm s .87(1). [55] The Court in Foti determined that the trial judge did not adequately instruct the jury regarding the differences between the two principal offences of aggravated assault and discharging a firearm with intent to wound. Justice Steel explained that the essential elements of the mens rea of these two offences are distinctly different. The offence ofaggravated assault is a general intent offence. The offence of discharging a firearm with intent to wound is a specific intent offence.

[56] Steel J.A. further determined that the mens rea necessary to constitute the offence of aggravated assault can be divided into two parts. First, there is the mens rea for underlying unlawful act, the assault. Second, therewould be the mens rea necessary to constitute aggravated assault. [57] As to the mens rea for the assault, Steel J.A. found that it could be sufficient to have an intention to threaten, scare or frighten someone by means of pointing a shotgun at them.

Steel J.A. stated as follows at paragraphs 14 to17: [14] There was some issue as to whether the mens rea for assault had been established as the defence argued that there was nointention to harm or to wound, but merely to "scare", and therefore the firing of the shotgun did not constitute an intention to cause harmor to wound. [15] Whether the shots were fired by accident or intentionally is a question of fact for the jury. However, if the jury held that theshots were fired intentionally, then that can constitute an assault even if the intent was merely to threaten the intruders away.

This is alsotrue of an intention to frighten by means of pointing the shotgun. [16] Assault is defined in s. 265(1) of the Code as follows: 265.

(1) A person commits assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or gesture, to apply force to another person, if he has, or causes that other person to believe uponreasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. [17] While under s. 265(1)(a), an intention to apply force to another person is clearly required, under s. 265(1)(b), a threat issufficient. As stated in R. v. Horncastle (1972), (NB CA), 8 C.C.C. (2d) 253 (N.B. C.A.) at 262: It is not necessary to constitute the offence of assault that the accused actually apply force or even intend to do so. It is sufficient if hethreatens to do so and has the present ability to do so.

Mens rea lies in the intention to threaten not in the intention to carry out that threat. [underlining added] [58] Steel J.A. set out what is required for the second part of the mens rea for aggravated as follows at paragraph 20: [20] The second part of the mens rea requirement for aggravated assault is objective foresight of the risk of bodily harm. One doesnot have to prove that the accused actually intended the serious wound that in fact resulted.

All the Crown has to prove is that areasonable person would inevitably have realized that the assault in question would subject another person to the risk of bodily harm. [59] Steel J.A. also indicated that to prove aggravated assault an actual wound, maiming or disfigurement did in fact result, would have to be established. [60] I adopt these statements of the law pertaining to the offence of aggravated assault.

ANALYSIS [ 61 ] In this case I have previously determined that the accused, Jacob Badger initially pointed a shotgun at Jody Ray’s head. Mr. Ray grabbed the barrel of the shotgun with his right hand and a brief struggle between the two men occurred. The shotgun was then discharged resulting in the injuries to Jody Ray. [ 62 ] In this case I find that Jacob Badger’s act of coming to the front door of the Ray residence armed with a shotgun and pointing it at the head of Jody Ray was an intentional threat to apply force to Jody Ray.

In addition, I find that this act caused Jody Ray to believe upon reasonable grounds that Jacob Badger had the present ability to effect his purpose. In fact, Jody Ray acted quickly when he saw the shotgun pointed at his head.

He grabbed the barrel with his right hand and a brief struggle occurred. [ 63 ] I also find that a reasonable person in the position of Jacob Badger would have foreseen that the pointing of the shot gun in the direction of Jody Ray would subject Jody Ray to the risk of bodily harm. [ 64 ] Lastly, I find that the shot gun which Jacob Badger was holding was discharged and resulted in a serious wound to Jody Ray’s right hand and other less serious wounds to his abdomen and his right leg. [ 65 ] I find that Jacob Badger is guilty of the offence of aggravated assault.

The Remaining Count [ 66 ] Count 2 is a charge of breaching an undertaking contrary to section 145(3) of the Criminal Code . As there was no evidence before me regarding any undertaking Mr. Badger was subject to on April 10, 2018, I find Mr. Badger not guilty of Count 2. CONCLUSION [ 67 ] I have determined that Jacob Badger is not guilty of the offences of attempt murder and breach of undertaking. However, I find him guilty of the lesser included offence of aggravated assault. _______________________

M. Hinds, J.