HIS MAJESTY THE KING - v. –, 2023 SKKB 78

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 78 Date: 2023 04 17 Docket: CRM-PA-00001-2022 Judicial Centre: Prince Albert BETWEEN: HIS MAJESTY THE KING - and – KEAGAN NELSON-SMITH Counsel: William G. Burge K.C. and Muhammad B. Zubair for the Crown Michael D. Nolin and Marie-Therese M. Bayda for the accused ___________________________________________________________________________ JUDGMENT DANYLIUK J. April 17, 2023 ___________________________________________________________________________ I.

FACTS AND EVIDENCE Introduction [ 1 ] The events leading to the charge in this trial occurred at La Ronge, Saskatchewan. La Ronge is a relatively small place, where many people are related or at least know one another. Yet, in this trial, it is the identity of the person who stabbed and killed another person that is squarely in issue. [ 2 ] On June 3, 2020 a young man named Muhammad Venne was stabbed to death. It is alleged that the accused, Keagan Nelson-Smith, is his killer.

The Crown must, of course, prove this allegation beyond a reasonable doubt. [ 3 ] For the reasons set out below I have determined that the Crown has been unable to prove beyond a reasonable doubt the identity element of this charge, and that the accused must be acquitted. [ 4 ] To better organize this judgment I have divided it into the following sections:

ITEM PARAGRAPHS I. FACTS AND EVIDENCE ............................................................................ 1-172 - Introduction................................................................................................. 1-9 - The Admissions....................................................................................... 10-11 - The Crown Case................................................................................... 12-172 II. ISSUES ................................................................................................................ 173 III.

ANALYSIS ................................................................................................. 174-212 - What are the governing laws and principles?............................... 174-204 - Has the Crown proven its case beyond a reasonable doubt?...... 205-212 IV. CONCLUSION .................................................................................................. 213 [ 5 ] This case has a blend of direct evidence, circumstantial evidence, admissions, photographic and video evidence, and defence denial.

It is complicated. [ 6 ] This judgment sets out this Court’s verdict, and the reasons for that verdict, following a second-degree murder trial. The trial was conducted efficiently and fairly by both Crown and defence, and counsel have the thanks of this Court for all their assistance. [ 7 ] Mr. Nelson-Smith is charged with murdering a man named Muhammad Venne.

The indictment specifically alleges the following offence: KEAGEN NELSON-SMITH, born June 29, 1999, of La Ronge in the Province of Saskatchewan STANDS CHARGED: That he, the said KEAGAN NELSON-SMITH, on or about the 3 rd day of June, A.D. 2020 at La Ronge, in the Province of SASKATCHEWAN did: Count #1) did commit second degree murder on the person of Muhammad Venne contrary to section 235(1) of the Criminal Code of Canada . [ 8 ] As alluded to above, the key issue in this trial was the required element of identity. At the conclusion of this trial the Crown’s position was that Mr.

Nelson-Smith’s identity had been established beyond a reasonable doubt. While acknowledging some issues with some of the Crown witnesses, Crown counsel nevertheless argued that the evidence establishes that it was the accused who killed Mr. Venne that day. [ 9 ] Not surprisingly, the defence took the opposite view. Defence counsel argued that the totality of the evidence before me falls short of satisfying the Crown onus as to identity. The defence contends there are significant gaps and inconsistencies which cast a reasonable doubt on the case against Mr. Nelson-Smith, particularly with respect to identity.

The defence says the Court has no alternative but to acquit him. The Admissions [ 10 ] The accused made a formal admission at this trial. Initially defence counsel did so verbally, but later in the trial an Agreed Statement of Facts was signed and entered into evidence pursuant to s. 655 of the Criminal Code , RSC 1985, c C-46 . [ 11 ] The formal s. 655 Agreed Statement of Facts/Admissions (Exhibit P-4) is dated March 8, 2023. It is comprised of the following admissions: 1.

Pursuant to s. 655 of the Criminal Code , the parties agree to admit the following evidence for the trial in the above matter; - Continuity of the body of Muhammad Venne as outlined in the interview of Daniel Laviolette; o On June 3, 2020 just before 4:00 AM, EMS received a call for a stabbing at Elder’s Road on Far Reserve;

o EMS attended and remained on scene for 14 minutes; and o They transported the victim to the ER at the hospital (La Ronge Health Centre). The Crown Case [ 12 ] In the course of this trial the Crown called 11 witnesses: three police, seven civilians, and one medical/scientific expert witness. Police [ 13 ] The first Crown witness was Normand Dupuis. He was a member of the RCMP who retired in April of 2022 as a corporal. He was called back to duty as a reservist constable. He was still a corporal as of the date of the events in question and I will refer to him as such. For a substantial period of time Cpl.

Dupuis worked in the field of forensic identification out of the Prince Albert detachment. It was those duties that brought him into this case. [ 14 ] Cpl. Dupuis said that on June 3, 2020 he was called out to attend a crime scene at La Ronge, Saskatchewan. He attended with another forensics identification officer. Cpl. Dupuis arrived on scene in La Ronge on June 3, 2020 around 11:10 a.m. and first went to the local hospital. It is there that he began taking many photographs, some of which were reproduced in three booklets which together constituted Exhibit P-1 in this trial.

He confirmed the accuracy of all photographs. [ 15 ] Booklet 2 of Exhibit P-1 contains photographs Cpl. Dupuis took at the hospital. Most were of the deceased. These photographs were taken prior to the autopsy later conducted by Dr. Shaun Ladham. Photograph #4 was of the socks and feet of Mr. Venne. The socks appear to be very bloody, and this piqued Cpl. Dupuis’ curiosity. However, and as will be seen below, like many other matters the bloody socks were not explained. [ 16 ] Booklet 3 of Exhibit P-1 contains photographs Cpl. Dupuis took at the autopsy that was conducted by Dr.

Ladham on June 5, 2020 in Saskatoon. [ 17 ] Booklet 1 of Exhibit P-1 contains photographs Cpl. Dupuis took at the crime scene on June 3, 2020 after he left the hospital. These were taken at Bell’s Point, on Elders Road at and around House 506. Cpl. Dupuis arrived on scene at 12:43 p.m. and began taking photographs. He described each photograph to the Court. [ 18 ] Generally, the photographs depict a residential street. House 506 is a grey bungalow with wooden steps leading to a front lawn. Across the street is House 505, a blue bungalow, and House 507, another grey bungalow.

These homes also figure in the relevant events. In particular, House 507 was the site of a wake. [ 19 ] The photographs showed a red substance on the stairs at House 506 and in spots on the lawn. Cpl. Dupuis said that to him, this substance looked like blood. As it had begun to rain some RCMP members had spread tarps overtop of these areas to preserve this potential evidence. [ 20 ] Also part of Booklet 1 of Exhibit P-1 were photographs of the inside and outside of a garbage bin located at House 505. At the top of the contents of the bin was a black-handled steak knife which Cpl.

Dupuis said was seized by the RCMP. [ 21 ] Cross-examination revealed what might ultimately be termed gaps in the investigation and/or Crown evidence. While the steak knife was seized, Cpl. Dupuis admitted it had not been tested presumptively for blood. Cpl. Dupuis avoided a direct answer to Mr. Nolin’s question of whether such a presumptive test would normally be done by remarking that the lab could test it for blood, and that despite being able to do such a presumptive test to see if an item such as this knife was important, it simply was not done at that time.

As will be seen, at the conclusion of the trial the Court was never illuminated as to whether there was any link at all between this steak knife found in the garbage, the deceased Mr. Venne, the accused, or anyone else involved in the matter. Nor was there any evidence as to what the substance was on the knife’s surface. Nor was there any DNA evidence flowing from the seized knife. [ 22 ] Similar evidence emerged on cross-examination regarding the putative blood spots on the lawn and steps. Cpl.

Dupuis testified that the other forensic identification officer present at the scene took swabs of the substance on the lawn which he believed to be blood, but that the substance was not tested at the scene. At the conclusion of this trial, the Court had no evidence as to what this substance was. There was no evidence adduced of any laboratory or other forensic/scientific analysis conducted on these spots from the lawn. I do not have evidence to tell me what substance formed these spots. [ 23 ] Yet further, a black hat or cap was recovered at the scene and was seized by RCMP. Cpl.

Dupuis indicated he did not take any measures to have that hat examined for DNA and that he did not know if that had been done by anyone else. He was unaware of any samples analyzed by a laboratory. He had inspected the hat the next day and had found hairs on or in the hat but left the hat as it was. Again, at the conclusion of the trial the Court knows nothing more of that hat than that, despite some evidence that this hat may have been dropped by the person who stabbed Muhammad Venne. I do not have evidence that tells me whose hat this was or whose hair was in it. [ 24 ] Cpl.

Dupuis acknowledged that a black backpack was found on scene and he examined it the next day. It contained two bottles of vodka and had a known fingerprint on it, that of Frank McKenzie (who was a civilian Crown witness later in this trial). I do not have evidence that tells me whose backpack it was or who was carrying it. [ 25 ] Cpl. Dupuis was also unaware of video surveillance that existed at some of the houses in the area. Cpl.

Dupuis indicated that by the time he arrived on scene the body had been transported away to the hospital; indeed, it had been there when he arrived at the hospital which was his first stop. He did conduct measurements and drafted a planned drawing which he passed on to Major Crimes. That drawing was never entered into evidence. I do not know what information it contains, if any, except that Cpl. Dupuis indicated that he took a measurement from the picnic table in the back yard of House 507 (where the wake was held) to the front steps of

House 506 (where the substance, perhaps blood, perhaps something else, was found) and it was just over 60 metres. Cpl. Dupuis also said there were aerial photographs taken and those photographs had a scale on them. No aerial photographs were entered into evidence. [ 26 ] There were numerous such gaps in the investigation and/or the Crown evidence. Indeed, somewhat oddly in a murder trial, the lead investigator from Major Crimes did not testify as a Crown witness and this was not explained. Other than as contained in the autopsy report of Dr.

Ladham, there was no evidence (re: toxicology) from any laboratory. [ 27 ] Sgt. Brent Nicol was the second Crown witness. He has been in the RCMP for 20 years and in La Ronge for over 10 years. On June 3, 2020, Sgt. Nicol was formally a corporal but was Acting Sergeant of the La Ronge detachment. On that day he received a telephone call at home just after 4:00 a.m. about a stabbing and was told the victim “was not going to make it”. He immediately went to the office and donned his uniform. He had been informed the stabbing victim had been taken to the hospital, so he went there.

On arrival he saw hospital personnel doing CPR and life-saving measures but at 5:05 a.m. hospital time the victim, Mr. Venne, was pronounced dead. Sgt. Nicol confirmed the identity of the victim and secured the room containing his body. He stayed with the body until relieved by Cst. Aaron Cheung, who arrived about 5:30 a.m. [ 28 ] Later, Sgt. Nicol was tasked with finding a member to escort the body to Saskatoon for an autopsy and he did so. He was also present when the body was removed from the La Ronge hospital for that purpose. It was also Sgt.

Nicol who told members to lay down tarps at the scene when it began raining later in the day. [ 29 ] Cst. Aaron Cheung was the last police officer to testify. La Ronge is his first posting and as at the date of trial he had been there about three and one-half years, so in June 2020 he would have been mere months out of Depot. He testified that he relieved Sgt. Nicol at the hospital and maintained custody of Mr. Venne’s body. He stayed with the body until 1:02 p.m. when it was loaded into a funeral home vehicle for transport to Saskatoon for an autopsy.

After this, he continued with his daily duties. [ 30 ] On cross-examination Cst. Cheung stated that three or four street gangs were active in La Ronge. In particular, the Terror Squad, L.A. Kings, and West Side Outlawz are active. The first two listed gangs were termed “permanent fixtures” by Cst. Cheung. Civilian Witnesses [ 31 ] The bulk of the Crown’s case flowed from the testimony of numerous civilian witnesses. As will be seen below, numerous issues arose with the credibility and reliability of these witnesses. [ 32 ] Sandy Milne was the first to testify. She was 16 years old as at trial.

She lives, and lived, in La Ronge with her mother. In late May of 2020, her uncle died. His name was Rheale Stene. Rheale had a partner, Tamina Tourangeau. They lived together at House 507. Rheale had three daughters from a prior relationship: Sekwun McKigney, Feather McKigney and Patience McKigney. [ 33 ] Sandy described how, after the funeral, there was a gathering for invited family and friends at the Stene house. It was a tradition to have a fire continuously lit for a few days to assist the deceased’s soul in passing to the spirit world.

A fire was started and maintained in the back yard of his home. [ 34 ] Sandy said that on June 2 and 3, 2020 she was at her uncle’s home for the wake. She was 13 years old at that time. She was inside and outside the house. At one point when she was outside “something happened”. [ 35 ] Sandy said that outside there were some people gathered around the fire talking and having a few drinks. From memory she listed her Uncle Alistair Stene, and three male cousins: Frank McKenzie, Zane Petersen, and Errol Ratt. Her deceased uncle’s three daughters (Sekwun, Patience and Feather) were there as well as Skylar Sanderson.

Others were also gathered. One was Muhammad Venne, whom she said she knew “somewhat”. She said he was around quite a bit when they were growing up. [ 36 ] She went outside at some point during the night and sat in a lawn chair a couple of steps from the fire. She said at first the mood was good and people were having fun. Then things changed. [ 37 ] Sandy’s recollection was that Muhammad Venne was angry at another attendee, named Dennis Nelson or Dennis McLeod (he uses both names). Sandy said that Muhammad was mad at Dennis because Dennis owed him money.

Sandy said Dennis seemed to have come to the wake with the accused. They stayed together on the other side of the fire, talking with one another and bantering back and forth. Part of that group included Sandy’s sister, Alice Milne, and Alice’s boyfriend, Samson Roberts. [ 38 ] She said Muhammad “got in Dennis’ face”. There was a confrontation and Muhammad called in Frank McKenzie as “backup”. Frank threw Dennis on the ground, or threw him around. She was not sure what, if anything, the accused did at this time but said he did not seem to get involved.

Things then calmed down when people in the crowd told them to stop. Muhammad left on a bike ride, she thought, but she had not actually seen him leave. She did see him return riding a bike after being gone 30 to 60 minutes. Sandy described Dennis as tall and skinny. Sandy did not recall how he had been dressed. She said she had never seen Dennis before. [ 39 ] When Muhammad came back from his bike ride, he did not come back to the fire. Sandy said he didn’t make it. She said the accused and Dennis arose from the picnic table and walked, then jogged, toward Muhammad Venne.

Sandy picked up her phone to record things, but the battery was dead. She stood up to watch what was happening. She said a guy bigger than Muhammad Venne tussled with him. They were sort of wrestling and trying to get each other down to the ground, she thought. Dennis was close to these two men. [ 40 ] Sandy then said she saw Muhammad fighting with the accused. She said she saw Muhammad get stabbed. She said the accused had his hand on Muhammad’s shoulder and appeared to be punching him in the stomach but she realized he was

stabbing Muhammad. She described the type of punch as an “uppercut” to the stomach of Mr. Venne. She said this fight was short, no more than 30 to 60 seconds. She said the accused backed away and Muhammad staggered, took off his shirt, and fell to the ground. She said the accused and Dennis ran away. By this time Sandy was standing in her uncle’s front yard, she said. [ 41 ] Errol Ratt ran to Muhammad Venne. He yelled for an ambulance. Sandy said her aunt told her to go inside.

She did, then came back outside when the police and ambulance arrived. [ 42 ] Sandy agreed that in her statement to police given on June 3, 2020 (there were others) she told the police the accused was dressed entirely in black clothing, but now she could not recall. She said her memory has gotten foggy. She said her initial statement was taken hours after the events she described in it, when matters were fresh in her mind, and that she told the truth to the police in her statement.

She agreed she initially told the police the accused had been dressed totally in black. [ 43 ] Regarding her recollection, Sandy acknowledged she was 13 when these things occurred and also that she had consumed alcohol and mushrooms that night, and was intoxicated. She had consumed “three or four seltzers” which are pre-mixed canned alcoholic drinks. [ 44 ] Sandy carried on with her narrative. She said after the fight the accused and Dennis ran away, to her right as she looked at the street from her uncle’s front yard. She said they went behind a house into the bush, either next door or two doors down.

This was on the same side of the street as her uncle’s house. [ 45 ] When asked if she ever saw Dennis again she said yes. She subsequently saw him at a party and had mistaken him for the accused. She said she had their names mixed up. She said Dennis explained to her who was who. This is because she initially referred to him as “Keagan”, so he explained he was actually named Dennis. She said that Dennis is taller and scrawny and the accused is “more chubby”. [ 46 ] Sandy also said she saw the accused, the man who had been in the fight with Muhammad Venne. She saw him in a store.

She was unsure how long after these events she saw him. She identified the accused, sitting in the prisoner’s dock, as the person who had been fighting Muhammad Venne. [ 47 ] Sandy was cross-examined by Mr. Nolin. She acknowledged she gave statements to the police on June 3, 2020, June 5, 2020, June 24, 2020 and March 3, 2023, a few days before this trial began. Sandy was questioned on whether, in her last statement, she admitted to police that she had lied or been mistaken in her first two statements regarding consumption of drugs and alcohol.

She stated she did not recall who supplied her with the mushrooms or whether Dennis had introduced himself at the wake. Sandy said she could not recall what she’d told police as her memory was foggy. When confronted with her statement it was apparent that she initially told police Dennis had introduced himself to her at the wake. She claimed she could not recall this. She admitted she could recall people calling Dennis’ name and asking what he was doing, but she also insisted she got the names mixed up as between Dennis and the accused. She said she did her best to tell the truth when speaking with police.

She said she could not recall these things now, at trial, nor could she recall saying those things to the police at the time of her statement. Further in cross-examination she said she did not know what time the fight happened but agreed it was dark outside. [ 48 ] Overall in her testimony Sandy Milne was very reluctant to acknowledge any past statements to police even when given an opportunity to read same. [ 49 ] Mr. Nolin asked Sandy who was at the wake. She identified Frank McKenzie but was unsure about his brother James. She was unsure whether Corey Clarke was there.

She knew Errol Ratt was there and that Muhammad Venne had been there. [ 50 ] Sandy was asked whether, in her police statement of June 5, 2020, she said that Dennis’ hat fell off and she did not know whether he picked it up. She said that was actually the accused and she based this on subsequently meeting the “real” Dennis at a party, when he corrected her as to his name. She had told the police in her March 3, 2023 statement that she had met Dennis at this party “weeks later”. Mr.

Nolin suggested that there would be other evidence that Dennis left La Ronge on June 3 and did not return until September 10, 2020 (this was subsequently proven). Sandy acknowledged at trial that she could not be completely sure that it was “weeks” later and said it could have been in July or August or even later. This is an example of numerous instances of Sandy’s account changing under pressure. [ 51 ] Further in her statement of March 3, 2023 (just days before trial) Sandy told police she had found the accused’s photograph on a Facebook profile.

That profile and photograph were not put into evidence at this trial. I have no way of determining whether the photograph Sandy claimed she saw was actually of the accused or of someone else. I do not even know whose Facebook account it was. This is yet another gap in the evidence. [ 52 ] Asked if Samson was in a gang, Sandy said he was not.

Asked the same about Errol she replied she did not know. [ 53 ] During cross-examination Sandy frequently denied what she had said in previous police statements or simply would not acknowledge even saying it, despite being confronted with the prior statements. [ 54 ] Sandy was asked if Dennis was stomping around the fire, angry or grumpy after Muhammad had “gotten into his face”. Sandy said he was not and that Dennis did not want to argue. Sandy denied hearing Dennis shout at Muhammad with the accusation that Muhammad had “fucked Dennis’ baby mama”.

At trial Sandy said she understood that Dennis owed money to Muhammad. It was pointed out to Sandy that she told the police nothing in this regard in her statement of June 3, 2020. She could not say when she remembered this but today, at trial, she believed the two men argued about money. This, despite claiming her memory was “foggy”. [ 55 ] Sandy was also asked if Corey Clarke was at the wake and she could not recall. Taken to her June 3, 2020 police statement where she told police Corey had been there, she maintained she could not recall that at all although she acknowledged this is

what she told the police at the time. [ 56 ] At trial she recalled seeing a backpack but was unsure who had it. In her police statement she had said that the accused had the backpack. More importantly (as will be seen later) she asserted that the accused had been dressed entirely in black. Mr. Nolin specifically suggested the accused had worn a blue top with black and white bottoms.

She disagreed with him. [ 57 ] At trial Sandy was asked whether she told the police (in her statements of June 3 and June 5, 2020) that people at the wake had yelled words to the effect of “Dennis why did you do that?” Sandy said she could not recall saying that. [ 58 ] Sandy was further asked whether people at the wake were saying that the interlopers (the accused, Dennis, Samson) were drug dealers for Errol Ratt.

Sandy said she could not recall this even when confronted with her prior statement. [ 59 ] I did not find Sandy Milne to be a credible or reliable witness, either on her own or in the context of the totality of the trial evidence. I cannot accept much of what she said. [ 60 ] Frank McKenzie testified. He is 32 years old and a lifelong resident of La Ronge. He was present for the funeral and wake of Mr. Stene. He said initially the gathering of family and friends was good and he was having a good time. He recalled a number of people who were present.

He knew some of them and did not know others. [ 61 ] Frank was the self-described best friend of Muhammad Venne. He said Muhammad was fine at the wake and initially was not confrontational with other people. Frank, together with a somewhat changing cast of other people, went back and forth between the Stene home where the wake and back yard fire were occurring and the house across the street, occupied by his friend Katie Ross. Frank agreed he had been drinking that night. At some point Muhammad had said he was going to stay up all night and tend the fire so it did not go out.

At some point Frank saw Muhammad and Dennis arguing and Frank went to get Muhammad out of there. [ 62 ] Frank said he recognized Dennis and other members of that group that had come to the wake, apparently uninvited, such as the accused, Samson and Derek Nelson (who Frank said was the accused’s father). He was the only witness to mention Derek Nelson’s presence at the wake. Frank said this group showed up between midnight and 1:00 a.m. and that it was dark outside.

He said he recognized the accused and identified him in the dock in court. [ 63 ] While visiting at Katie’s house across the street, Frank and Corey Clarke went out for a cigarette. Frank heard Muhammad’s voice from behind the Stene house, by the fire in the back yard. Muhammad sounded agitated which Frank said was unusual, as Muhammad was not that kind of person. He did not sound normal. Frank and Corey went over and heard Muhammad say words to the effect of “You’re not so mean now that my friends are here”. Frank said he had to push Dennis down to the ground.

Frank, Corey and Muhammad then went back across the street to Katie’s. [ 64 ] They stayed inside for a “good while”. Frank decided to go to his place which was one street over. Muhammad and Corey went along. While walking down the street the group of interlopers came at them, on the run. Frank said he spoke with Dennis and Samson. He said the accused was with Muhammad and they had an altercation. Frank claimed he heard Corey shout “He’s got a knife, I think he might’ve stabbed him”. Frank said he saw Muhammad take off his shirt and Frank saw wounds to his torso. Muhammad said “I’m dying”.

Frank ran to Katie’s for medical supplies. He saw Corey and Errol outside assisting Muhammad but Muhammad died of his wounds. Frank started yelling loudly. The group of people that had confronted them was gone. [ 65 ] Frank indicated that he was not terribly far from the accused and Muhammad, and that Dennis and Samson were right in front of him. He said Dennis and Samson were “in my face” and had their fists up. Samson defused things and told Dennis to calm down. It was at this point, he said, that he heard Corey yell “he’s got a knife”.

Frank said he was near the Stop sign on the road, whereas Muhammad and the accused were right in front of Katie’s house. Frank described the streetlights as being on and that it was bright. He said it was a “one-on-one fight” between Muhammad and the accused. Frank said Corey was merely watching and was uninvolved in the fracas. [ 66 ] Frank said that when Muhammad took off his shirt, Frank approached him. He said Muhammad shook his hand and said “I’m dying brother”.

Frank noted a large chest wound that was bleeding. [ 67 ] He said after the fight between Muhammad and the accused the other three men (Dennis, Samson, the accused) fled. They ran behind the Stene house, but Frank did not see exactly where as he was primarily focussed on Muhammad. [ 68 ] In cross-examination Frank admitted he had told police he was “pretty drunk”. However, he said he could recall events from that night. He denied telling the police he could not recall things from that night.

When confronted with his statement (“I was pretty drunk when it happened, I can’t remember”) Frank denied saying that to the police. Frank denied consuming any magic mushrooms and denied that Dennis was selling any that night. He denied accusing Dennis of stealing weed from him. Frank said he did not know whether Dennis owed money to Muhammad. Frank further denied telling the police that he had bad eyesight and was pretty drunk, but was confronted with his prior statement to police which indicated he had said exactly that. He then agreed he must have said this to the police but could not recall it at trial.

Frank said he does not, in fact, have bad eyesight and if he said that to the police he was not telling them the truth. [ 69 ] In cross-examination Frank clarified that there were two altercations, the earlier being between he and Dennis. At trial Frank agreed that he told the police that Dennis was crazy and had come at him, so he threw him down one time. However, in his prior statement to the police Frank had claimed nothing physical had occurred between he and Dennis. This discrepancy was never resolved. At trial Frank said he was standing up for Muhammad, that he was his “backup”, and that he pushed Dennis.

He said neither he nor Muhammad had any “beef” with Dennis. He was unaware of Dennis owing money to Muhammad. Despite this, he acknowledged he had pushed or flipped Dennis to the ground. Frank said he only witnessed one or two minutes of the first exchange between Dennis and Muhammad and never heard Dennis accuse Muhammad of fucking his baby mama. [ 70 ] Frank referred to Samson, Dennis and the accused as “sketchy characters” who made him nervous and he said

he did not trust them. He said Dennis seemed crazy. [ 71 ] Frank admitted that before that night he had not seen the accused to his knowledge. He said he may have seen the accused when the latter was a kid. [ 72 ] Frank said that after this initial altercation outside the Stene house he took Muhammad with him to Katie’s. He said they stayed there about an hour and a half, long enough to defuse the situation. They drank further, doing some shots. Then they got up to leave.

When asked how much he’d had to drink Frank said he had consumed half of a 40-ounce bottle of vodka starting around 3:00 or 4:00 p.m. on June 2. On an intoxication scale of 1 to10, Frank said he was a 5 or 6, “not crazy or super drunk”. Frank said he left Katie’s with Muhammad and Corey. [ 73 ] Through cross-examination Frank maintained the other group (Samson, Dennis, the accused) chased them down and picked a fight. He said “they attacked us”.

He said his group had left Katie’s and were at the Stop sign at the end of the block when these other men ran up to them. [ 74 ] Frank was questioned as to the accused’s clothing that night. He denied changing his account of the clothing. He denied first saying the accused wore a flat-beaked hat which was black with a white top, then said it was black with a white brim. At trial Frank said he did not recall any cap but recognized the accused’s face. He agreed he had not provided any further description to the police. Frank was asked about an individual named “Paris” but said he was not present that night.

He said the police never asked him to do a photo lineup. [ 75 ] Frank dissembled regarding his criminal record. When first asked whether he had a prior criminal record he replied “not that I know of”. He was then shown his record and then claimed that all the convictions were part of the same case. The record disclosed convictions, including two failing to comply with probation order charges and two assaults and an assault causing bodily harm.

When asked if this was not a violent record Frank said “no, there was just a lot of misunderstanding.” [ 76 ] After Muhammad was stabbed Frank saw Errol and Corey trying to give him assistance of some type. He said this was not on Katie’s front steps. He said the only time he and Muhammad had been on those steps was when they were out for a cigarette, and not post-fight. [ 77 ] Frank, too, was not a credible or reliable witness and it is difficult to accept much of what he said. [ 78 ] The Crown next called Skylar Sanderson.

While she often could not remember some details, Skylar was one of the more straightforward and direct witnesses. She was 25 years old at trial, presently living in Saskatoon. She agreed that in early June 2020 she was living in Prince Albert but was back in La Ronge due to the death of Rheale Stene. She was there about one week and had attended Rheale Stene’s funeral, then on June 2 and 3, 2020 attended his wake at his house at Bell’s Point, La Ronge, Saskatchewan. [ 79 ] She recalled that on the night in question a group of family and friends had a fish fry, a bonfire, and a few drinks.

She spent the day there and drank into the next day. She recalled that a few people showed up despite not being invited. Skylar said the crowd “wanted them to go, but they wouldn’t until they received what they needed”. She said a few people got into arguments and physical fights and that things “got rowdy” around 2:00 or 3:00 a.m. [ 80 ] Skylar said that she knew Muhammad as a family friend. She said Muhammad had been sleeping all day in a couple of different locations, both outside – at first sitting hunched over the picnic table, and then on the couch.

He had awoken about 30 minutes before the fight (described below) happened. [ 81 ] Three men who had not been invited to the wake showed up at the Stene house. Of those three Aboriginal men, Skylar only knew Corey Clarke. She described the other two men as one being very young and the other being “chunky”. She could not recall what anyone wore other than one had a hat. All three wore their hair short or “buzzed”. A bit later Alice Milne and her boyfriend, Samson Roberts, showed up.

Skylar noted that she, and everyone else at the wake, was intoxicated. [ 82 ] These new attendees had not been invited and she described them as “unwanted”. She said the “vibe” of the event changed right after they arrived. They were not family or close friends. The original attendees were uncomfortable with the presence of these new people. They were asked to leave but refused to go. Skylar did not think that Muhammad knew these other men but was unsure. She did see that he helped them leave. She noted that within an hour or two of these new people arriving, a fight occurred.

She said by this time the sun was rising and the sky was lightening. [ 83 ] Skylar saw that Muhammad and another male fought in front of the house. She watched. She said she had been on the left side of the fire (looking toward the street) but switched to the opposite side (with a better view) because of some rowdy people there. She said she heard someone say “oh my God” while she was in the back yard of the Stene house. She estimated the fight occurred about 15 metres away from her. I find this distance to be impossible from her described vantage point, given Cpl.

Dupuis’ evidence that this distance was around 60 metres, from his measurements. [ 84 ] Skylar was asked to describe the fight she witnessed. She said Muhammad and another male fought in front of the house. She watched. She said other people were in the front of the house. She saw no punching. She said Muhammad had the other man in a bear hug, and the other man was trying to get free. She did not see anyone with a weapon. She did not see a knife. She did not see this man other than from the back and she could not identify who was fighting with Muhammad. She admitted she was intoxicated.

Skylar said this man was wearing a tight t-shirt or tank top and it was white. She said it was the chunky guy fighting Muhammad in a one-on-one fight. [ 85 ] She said Muhammad let go of the man and that man grabbed his hat; he and two other guys ran off to her right. Skylar then looked at Muhammad who took off his shirt, then stumbled back. She could see he was bleeding in four places. She saw blood on both sides of his chest and stomach, and said he was “red in four places”. Muhammad stumbled one or two steps backwards. He fell down in a sitting position, but his legs did not bend.

He then laid back and that was his last movement that she saw. She witnessed

Errol Ratt attempt CPR, but it did not work. [ 86 ] She said at least three people called the police but it took about 30 minutes for any first responders to arrive. She did not call 911 but rather Googled the La Ronge RCMP and phoned there. While on the telephone she became angry that everything was taking too long, and she said she was “crying and freaking out”. Skylar said two cousins were also on their phones and that the police operator primarily spoke with her cousin Feather, who remained calm. She said most people were upset and crying.

She observed that Frank McKenzie was inconsolable. [ 87 ] Cross-examination expanded some of Skylar’s answers. She noted her cellular phone needed WiFi to work thus she needed to be close to the Stene house to make calls. She stood near the house when the fight was on, near Sandy, Feather and Sekwun.

Also under defence questioning, Skylar admitted her recollections were clouded by the fact that at the time of the fight she had been awake for a very long time, perhaps 40 hours, and she had consumed magic mushrooms and alcohol. [ 88 ] Regarding the first fight by the fire, Skylar recalled that one male “flipped” another, who was one of the three men attending who had not been invited. That man told the others they did not have his back, and he seemed perturbed. She had a vague recollection of a silver-haired man (she did not know who he was) joking with Errol Ratt, who did not care for the joking.

The older man asked Errol “where is my money?” At first Errol was not present and the uninvited men gave some indication that they were not leaving until Errol showed up. Skylar could not recall whether Corey Clarke was present at that point. She did, however, recall Corey Clarke saying to her father “you fucked my baby mama”. Skylar said she avoided Corey that evening as he did not like her father. [ 89 ] She said she did not recall Muhammad Venne ever telling anyone they owed him money. She said Muhammad seemed intimidated by the uninvited males but that his confidence rose after Frank McKenzie arrived.

She heard Muhammad say to the other men that Frank was his “backup”. She said Muhammad did not seem to have any particular issue with these men but was trying to get rid of them as they were not invited to or wanted at the wake. [ 90 ] Skylar did not know Dennis McLeod/Nelson and had never met the accused, and said she was not introduced to the accused that night. It was also the first time she met Samson. She knew Errol Ratt as they are first cousins.

Her father, Alastair Stene, was present the entire time. [ 91 ] After the initial fight between Frank McKenzie and the uninvited man Skylar noticed Corey Clarke sitting in the back yard in a chair, and said Errol was there and was angry because someone “had ruined his high”. She said no one called the three uninvited males Errol’s drug dealers to her knowledge. She said Frank was not acting in an aggressive manner. [ 92 ] After the second fight Skylar saw Errol run from the bush to assist Muhammad.

When asked if someone said to Errol “you’re next” she said she did not hear that. [ 93 ] Skylar told the police that she could not recall if the accused wore a black or white top. She did recall Muhammad wore a white t-shirt. In her statement of June 4, 2020, Skylar told police she saw lots of attendees taking photos and videos of events, but she did not see anyone else’s images. None of this was introduced into evidence. She also stated she did not witness any of the actual fight involving Muhammad where he was injured.

Skylar said that one man stooped to pick up something, but it could have been a hat, or a knife, or glasses – she simply was not sure what it was. She did see three men running away off to her right as she looked at the street from the Stene house. She did not know where Alice and Samson were when Muhammad fell down, but she knew they did not run off with the other men she saw running away. This conflicts with Dennis Nelson’s testimony. [ 94 ] She agreed that on June 6, 2020 she sent the police a photograph of Corey Clarke, stating she thought that this was the man who had fought with Muhammad.

That photograph was entered into evidence as Exhibit D-1. As well, a text conversation between Skylar and police was admitted as Exhibit D-2. She was the only witness to suggest it might have been Corey Clarke that fought Muhammad Venne. [ 95 ] On further cross-examination Skylar recalled June 2, 2020 as being a hot day and remembered complaining about the heat and the sandflies. She was unsure when it started raining. [ 96 ] Skylar was a witness attempting to be truthful and helpful but in the final analysis, she was not helpful.

Her perception at the time of these events and in dealing with police was warped by drugs and alcohol. By trial her memory was not great. I find Skylar to be unreliable as a witness. [ 97 ] Zane Petersen testified. He was 31 years old at trial and has lived in La Ronge most of his life. He attended the Stene wake on June 2 and June 3, 2020. He said everyone was having a good time. The invited guests had enjoyed a big meal and lots of people were outside in the back yard to keep the fire going, as is the tradition. He said at some point some other people showed up.

At that time Zane was sleeping on a couch located outside and when he woke up, these guys were already there. He noted other people were around when he fell asleep, and he noted Frank McKenzie to be one of them. When he woke up Muhammad was at the picnic table. The four new people who had arrived were Samson, Alice (his cousin), Dennis and the accused. He had never met the accused and did not talk to him that day, noting these people hung out in the background. He said the invited guests had all been drinking all day. [ 98 ] He said some people started fighting about 10 minutes after he woke up.

He said Dennis McLeod/Nelson “was an asshole” to Muhammad and that Dennis was mad at Muhammad. Dennis was swearing at Muhammad, and Muhammad said “fuck you” back. He said Frank McKenzie intervened and threw Dennis around. Four men left and Zane lay down again. Zane said the four new men were relatively far from him, but he got a good look at them because of the light cast by the fire. He noted one of the men had a white hat and a white sweater and was “kind of tall”; he saw his face clearly. He identified the accused in the dock as this man. [ 99 ] Later, Zane said the uninvited men came back on the run.

This was about 20 minutes after the first altercation and he woke up because people were yelling. There was an altercation in which Muhammad was hurt. Muhammad took off his shirt, then collapsed. Errol Ratt gave Muhammad CPR and Frank was “freaking out”. Zane ran into the house to get someone to call the police. He said the ambulance took 15 to 20 minutes to arrive and in that time Muhammad bled out and died. Zane said he was then freaking out and

was in shock. [ 100 ] When asked in examination-in-chief what he actually saw of the second altercation in which Muhammad was stabbed, it did not appear Zane saw much. He was awoken by the yelling and he got off the couch to see what was going on. He saw Muhammad and Frank and Errol, and saw Muhammad take off his shirt. He said Frank was swearing. Zane thought it had just been an ordinary fight but then realized something was wrong. Frank was screaming and he saw Errol performing CPR and Frank holding Muhammad. Zane entered and remained in the house to ensure an ambulance was called.

He thought Errol should have applied pressure rather than doing CPR. [ 101 ] Zane noted he had grown up with Frank and Muhammad and they were like brothers. He could not recall what initially woke him up, but the fire was still going and the uninvited men were sitting there. [ 102 ] In cross-examination Zane agreed he had given two recorded statements to the police. He noted that his first statement on June 3, 2020 occurred while he was in shock and was still intoxicated. He said he had been drinking vodka but had not consumed any mushrooms.

He said by the time he had fallen asleep the first time, he had consumed a 40-ounce bottle of vodka plus a few beer. He said that much alcohol would not normally get him drunk. [ 103 ] Zane recalled on cross-examination that when he woke up the first time Dennis was yelling at Muhammad “you fucked my baby mama”. Frank intervened, grabbing Dennis and throwing him to the ground. He said “no one wanted to mess with Frank”. He believed Dennis and Samson to be gang affiliated at that time. He agreed he did not really know the accused and only learned his name later on.

Zane also said he did not see Corey Clarke present at the wake. He described Corey as “a mouthpiece when he’s been drinking”. He can get rowdy and is usually okay but will fight. [ 104 ] Zane said he did not know who brought these new people to the Stene house for the wake. He confirmed that he believed the accused was wearing a white sweater and hat, and maybe had jeans on. [ 105 ] I find Zane not to be reliable as a witness. He had consumed a lot of alcohol. He spent much of the time surrounding key events asleep. He did not actually witness much.

His testimony is not particularly helpful. [ 106 ] Sekwun McKigney testified. She is the daughter of Rheale Stene, the deceased man at whose wake these events occurred. She said she had been in town for his funeral for about one week. She said the wake was fine for a while and that people sat by the fire in the back yard drinking and listening to music. She said most of the attendees were related but some friends were there, including Muhammad Venne. [ 107 ] Late that night (into June 3) Alice (her cousin) had been invited to come over. She brought her boyfriend, Samson, and two other people.

Sekwun met Samson for the first time that night. She did not know the other two men who came along. There was one skinny man and one husky man. She could not recall exactly what these men wore but it was mostly black clothing. She said this new group arrived and a fight broke out soon after. [ 108 ] Sekwun recalled there was a lot of yelling and shoving. She said she was in the back yard when the new group arrived and hostilities erupted within two minutes. She said two of the new males fought with one of the invited guests. She was not sure who was involved and said the altercation was quickly broken up.

She said all the invited guests were upset by this. She said Frank, Corey and Errol left the party and that things were fine for the next hour or so. [ 109 ] She said some of the men who had left then returned and another fight broke out on the road. She said the members of the uninvited group had stayed behind and some of them chopped wood for the fire. She said when Frank and the others were gone for that hour the invited guests sat around talking but really did not mix with the uninvited guests. They hung out near the outside couch. Sekwun said she wanted them gone.

She said all of these people became involved in the second fight but she really did not see much of the actual fight as she was still in the back yard. She heard a bunch of yelling from the front but did not see much. [ 110 ] Sekwun said from her vantage point beside her father’s house she saw Samson holding people back with his arms outstretched, as if he wanted it to be a one-on-one fight. She only saw the last bit of the fight. She saw Muhammad taking off his shirt and noted he was bleeding a lot. He took a few steps, then collapsed or lay down in someone’s yard. Blood was streaming down his chest.

She said the four “new” people ran off as soon as Muhammad took off his shirt. They ran in the direction of the school. There was a lot of yelling going on and Frank and Errol went to Muhammad. Her sister Feather phoned 911. Sekwun stayed in the back yard. [ 111 ] Sekwun was also asked if Samson had worn his thick black glasses and she recalled that he had. She agreed she was quite intoxicated at that time and informed the police of that on June 3, 2020. She had consumed mushrooms and was drinking beer. She described herself as “out of it” when she was speaking with the police and when the incident occurred.

She acknowledged it was difficult to recall details almost three years later and that her account from the time was likely more accurate. She had reviewed her police statement and felt it was accurate. [ 112 ] She was unsure of the names of everyone in the new group. She heard one of them referred to as “Dennis”. Some people said Muhammad had fought with Dennis. She was unsure whether Sandy Milne knew who these men were. Sekwun acknowledged she had told the police the fight was a gang matter.

She based this on her belief that the men wore black clothes and made a noise, sort of like a loon call with two long sounds. It was not like two barks or a wolf noise. She had told the police she thought they all came when Alice came and had been in the same vehicle. [ 113 ] Sekwun did not recall Don Roberts being present, nor any older man with the group. She said when the new men showed up there was a lot of discussion about drugs. She said one of the new men demanded money from Errol and this irritated her as the occasion was one to honour her father.

She recalled that Corey Clarke was there and was annoying people, and that he “got into it” with her Uncle Alistair. She said all of this damaged the mood of the event. [ 114 ] Corey Clarke testified for the Crown. He began his testimony by noting that June 3, 2020 was a long time ago

and he had been very drunk. He had attended the wake for Rheale Stene. He said he was drunk the whole time he was there. After it got dark he went to Katie Ross’ for a while, he was unsure how long or the reason for going there. He went back to the Stene house and was present when others arrived, Samson and some other guys he did not know. He said the tension was palpable and he wanted to leave. [ 115 ] Corey initially summarized the altercation. He said he and some others walked to the road and a group of guys came up to them from the Stene house.

Something was said by them and Muhammad Venne said “fuck you guys” and ran up to the other men. He began to fight and was stabbed, so Corey pulled Muhammad over to Katie’s house. Muhammad said he was going to die. [ 116 ] He then provided more detail. He said he had arrived at the wake toward the end of the day on June 2. He said numerous relatives and friends were there. Frank McKenzie is his cousin. He knew Muhammad Venne as they had grown up together. He said he did not keep track of everyone present as he was too busy drinking. [ 117 ] Corey said as the wake went on a new group of people arrived.

One was Samson Roberts. Corey knew him because Corey had been dating Samson’s cousin. Corey said he was in the back yard of the Stene house when this group showed up and he avoided them as he knew “it was bad news” when they arrived. He did not pay any attention to them. He said they did seem rowdy. He said he did not keep track of everyone present as he was too busy drinking. He left with Frank and Muhammad to go to Katie’s and stayed there for a while, talking and drinking. They did not stay there very long and went back to the Stene house.

He said those other guys were still there so he said “fuck it let’s get out of here”. They began walking toward the road when the other men approached them. [ 118 ] The two groups began to argue. There were four or five other men closer to the house who were spread out, swearing, acting cocky. He said there was no reason to argue. Muhammad Venne said “fuck you” and ran toward the others. Corey saw a scuffle and Muhammad went down, so he began walking toward Muhammad then running. He told the other guys “quit it” and “get out of here” or something. He next remembered getting to Muhammad and that he was bleeding.

During the fight he had believed Muhammad was getting punched in the stomach in a one-on-one fight. [ 119 ] Corey said he could not discern who was fighting with Muhammad because he has bad vision and was not wearing his glasses. When he got closer he could see that Muhammad was bleeding while on the ground. He pulled Muhammad to the side and called 911. Corey recalled Errol and Frank being there as well, and that Muhammad said “I think I’m going to die bro”. Corey said there was so much blood and that Muhammad had taken off his shirt. He had been stabbed in the chest, in the abdomen, and in the side.

When Corey pushed on him more blood came out. He believed the ambulance arrived pretty fast and they took over so he backed away. [ 120 ] At this point Errol and Frank were freaking out so Corey tried to calm them down. He said the men from the other group took off, either down a trail behind the house or down the street. [ 121 ] Corey was brought into the courtroom in cuffs and shackles, as he is a serving prisoner. The first question on cross-examination was whether he was on a gang range and he answered he was not.

He agreed that on the night in question he had heard a group of people barking and said this was a call sign for Terror Squad. [ 122 ] He identified the site of the fight as being on the road but in front of the stub fence by the Stene house. He disagreed that it was close to the Stop sign. [ 123 ] Corey said that once they were confronted by the other group Muhammad ran toward them and it appeared he ran toward four or five people. Corey said after the fight he picked up Muhammad as he was laying in the street and he was angry at the other people, so told them to “get the fuck out of here”.

He said they split into two groups and ran in two different directions, although he did not really see them run off. He knew Muhammad was hurt but did not know he was dying. He admitted he had not seen the fight very well and described it as one shadow swinging at another, and at that point could not really see Muhammad but he knew where he had run. He did not see anyone with a knife during that fight. He was not sure what people were wearing but thought it was all black. He did not recall if Muhammad was wearing a jacket. He did not see any blood on anyone else.

He could not recall if he carried or helped Muhammad to the steps at Katie Ross’ house, but he knew he had somehow assisted Muhammad get there. They got to the lawn and he saw Muhammad had blood on his shirt. By this point Muhammad was unable to stand and he fell to the grass saying “I think I’m going to die”. He denied stabbing Muhammad. [ 124 ] Exhibit D-1 was shown to Corey and he confirmed it was him and it was how he looked on June 3, 2020.

He was also shown Exhibit D-2 and denied that it was Samson Roberts, although he did not know who it was. [ 125 ] Corey was asked if he had told the police during his statement that at some point that evening he became agitated with Errol. Corey said he could not recall that. Nor did he recall a dispute with Alistair Stene or the words “you fucked my baby mama” being used. He did not recall that Sekwun McKigney kicked him out of the wake. He did not see Frank McKenzie flip another man earlier in the night. [ 126 ] Corey confirmed he had been drinking a lot that day.

When asked in 2020 if he would drink until he blacked out he replied “I like to drink”. Indeed. [ 127 ] Corey was definitely an unreliable witness. I cannot put much stock in what he says. [ 128 ] The last civilian witness was Dennis Nelson, also known as Dennis McLeod. Dennis was 29 years old as of trial and had lived in La Ronge for the past 13 or 14 years. He works in the mining sector. [ 129 ] He acknowledged being at the Stene house on June 3, 2020. He agreed he had been drinking that day. The previous day he had been paid so he was drinking with family and friends.

Before going to the wake he had been at Don Roberts’ house, drinking, with Don and Lori Roberts, the accused, Samson Roberts, and Alice Milne. All were drinking and they started around 12:30 or 1:00 p.m. They stayed until evening. He noted that the accused is his nephew and they have known each other for their entire lives. He also said he was dressed all in grey that day.

[ 130 ] Later the group went to the Stene house to drink more. He said the houses were three to five minutes apart by foot. He said four of them went: he, Samson, Alice and the accused. He said they arrived but was not sure of the time of arrival. They got there and tried to make a fire but had to go elsewhere for wood. Other people were present; he could not recall who. Dennis thought the mood was “all right”. He noted everyone present was drinking alcohol. [ 131 ] Dennis said Frank and James McKenzie tried fighting him in the Stene back yard, near the fire. He said he had “no clue” why.

He said they ganged up on him and beat him up and the fight lasted five or ten minutes. He said it was two-on-one so he could not do anything. He said Tamina stopped them by saying “no fighting or you have to leave”. After this Dennis went inside for a while and spoke with Tamina, who was angry at him because she thought Dennis had started the fight. Tamina said he could stay if he calmed down so he went outside to sit by the fire. [ 132 ] During this time Dennis said he saw Muhammad Venne as they sat across the fire from one another.

Muhammad was talking to his friends although Dennis could not recall who they were. He kept drinking. He said Frank and James were also across from him and while they did not say anything, they laughed at him. [ 133 ] Dennis said he next talked and generally socialized with his cousin Paris. He said “after that, everything went sideways”. He said Frank, James, Errol and Muhammad went to the front of the house. So did Samson and Alice. Dennis said he did not know where the accused was. Dennis said he sat by the fire facing the bush in the back, and about 15 or 20 minutes later he heard screaming from the front.

He did not know who was screaming and could not make out any words but could hear two different male voices. Some other people came to get Dennis and said they had to go. At this point he still did not know where the accused was as he did not see him until after these events. [ 134 ] A group of people walked to a house owned by his cousin Ernestine Roberts. They travelled down a path or road behind the Stene house. He said they walked there and did not run. He spoke with Alice about his sister Gina Nelson. Ernestine’s place is about three to five minutes from the Stene house.

Dennis said that he, the accused, Samson and Alice walked there; however, the accused walked ahead of the rest of them and was about 25 metres ahead. Dennis was definite that it was not the accused that came to the back yard to say they had to go. All four people took the same path to Ernestine’s. Dennis could see the accused’s back as he walked ahead of them and Dennis noted he was dressed in the same clothes.

He said it took them four to six minutes to get there and on arrival he smoked weed. [ 135 ] When he arrived at Ernestine’s with Alice and Samson the accused was already there and was outside the back of the house. Dennis did not know what the accused was doing there. He did not actually see the accused out back but very shortly after the rest of them went in, the accused entered the house through the back door. Dennis said he had knocked on the front door and Ernestine let them in. [ 136 ] Dennis said when the accused entered Ernestine’s he had different clothing on.

He wore white long johns and black spandex shorts. He had a long-sleeved sweater on. He had no jacket or pants with him. Dennis had seen the accused dressed in pants and a jacket when he was at the Stene house. [ 137 ] As noted Dennis smoked more weed within minutes of arriving at Ernestine’s, then he slept because he “got too stoned”. He thinks he woke up around 10:00 or 11:00 the next morning. Ernestine got him up and she said that he was suspected of killing someone at the Stene’s the previous night.

Dennis said he had no idea what she was talking about or why he was getting blamed. [ 138 ] Dennis also noted that while still at Ernestine’s he somehow saw the accused’s jacket, which he now said was black and white. He said it “was not supposed to be red”. He would not come right out and say there was blood on the jacket. It remains unclear when and how he saw this. He said there was no red on Samson’s clothing. He did not ask the accused about it. He did not know if there was any red on the accused’s jacket before this. He could not recall the first time he noted red on the accused’s jacket.

He was evasive in answering these questions in chief. [ 139 ] Dennis’ group (he, the accused, Samson, Alice) left Ernestine’s and got a ride to his relative’s cabin at Wapawekka Lake. Along the way everyone stopped and got blankets and pillows. Dennis smoked yet more weed. [ 140 ] Cross-examination provided some interesting information. Mr. Nolin commenced by asking that a warning under s. 5 of the Canada Evidence Act , RSC 1985, c C-5 , be provided to Dennis.

After some discussion with counsel I did this. [ 141 ] The first questions from defence counsel pertained to Dennis’ failure to appear on day one of this trial. Crown counsel had indicated Dennis had reported that he had COVID-19 and could not attend. When asked directly by defence whether he had COVID-19, Dennis replied no, the test had been negative. When asked if he told the Crown it was positive he said “I might have”. He acknowledged telling the Crown he was isolating. He agreed he was arrested and the night before his testimony and overnight before his second day of testimony were spent in jail. [ 142 ] Mr.

Nolin also had Dennis clarify that when he said he “got paid” on June 2, 2020 he actually had received Employment Insurance benefits as the mine he worked at was shut down due to COVID-19. [ 143 ] Dennis said on June 2, 2020 he got up in the morning and started using weed. He said he smoked a LOT of weed that day. Later he went to the home of Don Roberts, who is Samson Roberts’ uncle. He and Don used drugs but Dennis insisted he consumed no mushrooms. He denied selling mushrooms to anyone at this event or in general.

He denied ever telling police that he had picked an entire hockey bag of mushrooms weighing 80 to 90 pounds, which was worth about $1,100.00. He was confronted with his police statement of September 13, 2020. Dennis said he could not recall saying those things, and generally could not remember anything about this. Once he read his statement he was asked if this jogged his memory and he said “kind of”.

He finally admitted he had said this to the police in his statement. [ 144 ] Dennis said that on September 13, 2020 he was not at his best as he’d been in the bush for three months and had returned three days earlier, and had gone on a three-day bender. He was still a bit intoxicated during his police statement, he said. Plus he

was grieving because he had been informed that in August his lady had lost a child. Dennis admitted that he knew, as of June 3, 2020, that the police were looking for him and wanted to speak with him. His sister had told him this a couple weeks later. Dennis had told the police there was no cellular telephone service where he was.

He was working in the bush near Wapawekka with his father. [ 145 ] In cross-examination Dennis said that in addition to smoking a lot of weed on June 3, 2020 he drank more than 18 Budweiser beer and a 40-ounce bottle of vodka. [ 146 ] Dennis explained his relationships with some of the people involved in this matter. Samson Roberts was his younger cousin. His father and Samson’s mother were brother and sister. He said he had not spent much time with the accused when they were growing up as the accused was in the south playing hockey during his youth.

As well, the accused’s grandmother kept him away from Dennis’ family. [ 147 ] When asked about grounds for confrontation at the wake, Dennis denied that he was a seller of drugs and therefore this was no basis for a dispute with him. He did acknowledge that Errol Ratt had borrowed $40.00 from him that was unpaid but said they did not have any dispute with Errol at the wake. Dennis could not recall whether Corey Clarke was there and he said he did not see Corey have a dispute with Errol.

When asked why Frank and James McKenzie jumped him at the wake Dennis was somewhat evasive and ultimately answered “probably because of a woman”. However, he denied accusing Muhammad Venne of fucking his baby mama. [ 148 ] Dennis also said he did not see Sekwun at the wake and did not know her. He said he could not even recall whose wake it was. When the name of Rheale Stene was mentioned Dennis said he did not know Sekwun was his daughter. He said he did not really know Sandy Milne and said he only knew she was Alice Milne’s younger sister because counsel had just told him that.

He did agree that Sandy had met his group on the road as they arrived at the Stene house and that she did interact with members of his group a bit. [ 149 ] The group ended up at the wake because of Don Roberts. Dennis claimed that Don had received texts from Tamina inviting him to the wake. Don went over to the Stene house twice. The first time he went by himself. Then he came back to his home and said the entire group should go. Dennis could not recall the time of this although he remembered it was dark outside. Dennis said when they arrived he did not know all the people present.

He also said Samson and the accused had shared a 40-ounce bottle of liquor and had done mushrooms before going to the Stene house although he did not personally see this. He said they told him they had done so. Of some note is that Dennis said on the walk over to the Stene house from Don Roberts’ place, Paris Roberts was along. Paris is Don’s son and Samson’s cousin. [ 150 ] In cross-examination, Dennis again asserted that shortly after arrival at the Stene house his group tried to make a fire. At trial he insisted that it was he and Samson Roberts who left to get firewood from another house.

However, in his September 13, 2020 police statement Dennis said that he had gone for wood with Muhammad Venne and this was done at Tamina’s request. In that statement Dennis said that Muhammad brought Frank and James McKenzie back to the wake when they were out getting wood. He said they ganged up on him back at the fire, and he claimed it was because he stole their wood as opposed to weed. But he really did not know why they beat him up, he said. Dennis denied hearing Muhammad describe Frank as his backup. [ 151 ] Dennis said – and he is the only witness who said this – that Frank and James beat him up.

He said they picked him up and tossed him to the ground, first Frank and then James. He also said Frank punched him while he was on the ground and that he did not know what James was doing at that time. He agreed this fight angered the family and that Tamina was mad at him because she thought he had caused the fight. He said at that point Frank, James and Muhammad left the wake. Dennis, Samson and the accused chopped the wood to get the fire going. [ 152 ] Dennis was shown Booklet 1 of Exhibit P-1.

Shown photograph #1, Dennis denied that he stood near the Stop sign with Frank during the fight in which Muhammad got stabbed. He said he did not see anyone in his party with a knife. [ 153 ] Further in cross-examination Dennis admitted to smoking more weed at Ernestine’s place. He said they arrived there around 1:30 or 2:00 a.m. Dennis at first denied also drinking beer there notwithstanding this is what he said in his statement to police. However, minutes later in court he agreed that more beer was consumed.

He said when they woke up the next morning Ernestine was accusing Dennis and Samson of killing and also drinking beer. Dennis said he denied this. He did not want to get blamed for this murder. [ 154 ] Dennis also contradicted his police statement in another respect. In chief and cross-examination he insisted Sophie Roberts drove everyone around to get pillows and blankets so the group could go camping. In his statement Dennis had said nothing about camping and said his father had called him and he had to go back up north to work.

Dennis actually denied saying this in his statement, then when confronted with that portion of his statement he admitted saying that to police. He had not said anything to the police about Sophie driving them around. [ 155 ] At this point the trial was adjourned from just past 11:00 a.m. to 1:43 p.m., all to allow Dennis to again read his statement. He acknowledged he had read it the day before and again just then. After all this he finally admitted that in his statement he had said nothing about Sophie to the police.

He said he knew he was supposed to be honest in his statement and that he tried to be, but he recalled the details about Sophie after he gave the statement. [ 156 ] Yet another discrepancy in his statement was with respect to Samson Roberts. In his statement he told the police he had not spoken with Samson after the events of June 3, 2020. In fact that was untrue. He was also aware that Samson was on the run and had breached conditions of a court order. [ 157 ] Dennis admitted that after June 3, 2020 he deleted all his texts from his mobile telephone. This was not explained.

As well, he denied meeting Sandy Milne later that summer and introducing himself. He said he was not around La Ronge in July and August and only returned on September 10, 2020. He said he met her at a party about a year later and had to introduce himself again at that time.

[ 158 ] In his September 13, 2020 statement Dennis told the police that he had seen Samson “last month”. At trial he initially said he had not seen Samson before giving his statement to police. He denied going camping with Samson and said he had not spoken with him. He admitted he had seen Samson and that Samson was “on the run”.

Further on in his statement Dennis told police the accused had no dispute with Muhammad Venne, but that the accused had been “pissing off” Alice. [ 159 ] In his statement of September 13, 2020 Dennis told the police that on June 3, 2020 the accused was wearing a white and black jacket with black pants. He did not recall saying what Samson was wearing but acknowledged Samson was dressed all in black, and told the police Alice was as well. [ 160 ] A telling portion of the cross-examination was when Mr. Nolin showed Dennis the contents of Exhibit D-3, comprised of a still photograph and two short videos.

Apparently these images were taken from house surveillance cameras when Dennis’ group was on the way to the wake. There were three people in the still photo. One was dressed in black shorts and white leggings and had a white hat, and Dennis confirmed this was the accused. When asked specifically whether it was possible the accused had these clothes on all night and had not altered his clothing at Ernestine’s, Dennis agreed that could be so. His explanation was that he was “pretty high” that night. He could not recall if the police had shown him this photograph.

He said he was not in the photo as he wore all grey that night and the other two people were all in black. [ 161 ] The first video was eight minutes in length and showed three people. One of them was a bit away from the other two and he wore a white hat. Dennis said he could not tell who those two people all in black were, but they could have been Samson and Alice. Later in that video two other people join the group to form a total of five people. Dennis agreed one person in the larger group could have been Paris Roberts. [ 162 ] The relevant portion of the second video was about one minute long.

It showed two people with one following, and the last person wore a white hat. Dennis testified that he believed that person to be the accused. In the video the accused appeared to wait for two other people to catch up to him. One of them carried a phone and Dennis said that could have been Paris. He identified himself as the man in grey. [ 163 ] Of importance is that Dennis agreed these two videos were taken on the way to Tamina’s the first time.

As will be discussed later, this evidence tends to show the accused was not clad all in black but had on the black shorts/white leggings combination from the outset of the night. [ 164 ] On re-examination Dennis said the accused had been wearing boxers and spandex leggings and pants, and claimed he could not tell from the video what the accused was wearing.

A plain view of the video shows the black and white bottoms the accused had on before even reaching the wake at the Stene house. [ 165 ] Again, I will deal with this later, but Dennis was an unsavoury and unsatisfactory witness with little credibility or reliability. Expert Witness [ 166 ] Dr. Shaun Ladham testified and was qualified as an expert, able to provide opinion evidence on the causes of trauma and cause of death. He reviewed his training and experience, both of which are substantial.

He presently serves as the Chief Forensic Pathologist for Saskatchewan and has been in that position since September 2005. He has performed or supervised over 5,000 autopsies. He has been qualified as an expert witness over 200 times in Saskatchewan and between 50 and 100 times in the USA. [ 167 ] A qualification voir dire was conducted both as to his qualifications to proffer his opinions and on the issues of impartiality and his duty to the Court under authorities such as White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 , [2015] 2 SCR 182 , and R v Bingley , 2017 SCC 12 , [2017] 1 SCR170 .

I was entirely satisfied that Dr. Ladham met the criteria to be qualified as an expert witness as requested. Dr. Ladham’s autopsy report was marked as Exhibit P-2 and his curriculum vitae as Exhibit P-3. [ 168 ] Dr. Ladham performed an autopsy on Muhammad Venne on June 5, 2020 at Saskatoon City Hospital. He described the process in detail. Of particular note for the purposes of this trial were three stab wounds located on Mr. Venne’s torso. One was to the front of his chest, another to the side of the body, and the third to the abdomen.

He used Exhibit P-1, Booklet 3, to assist in explaining the results of the autopsy. [ 169 ] His conclusion was that the chest wound was the fatal one. He described a horizontal knife wound made by a single-bladed knife, which could be consistent with something like a steak knife with a blade close to five inches in length. He said a knife went through the cartilage between the fifth and sixth ribs on the left side of Mr. Venne’s chest and plunged into the chest cavity, through the chest membrane and into the pericardium. It pierced the right ventricle of Mr. Venne’s heart and went out the back of it.

He said the heart bled into the chest cavity and there was about 2,100 cc of blood in the right chest cavity, which is a lot of blood. He said there was an additional 140 to 150 cc in the pericardium, as well as blood that had leaked out of his body. Dr. Ladham stated unequivocally that this volume of blood loss is fatal. [ 170 ] The other two wounds, while serious, would not have been fatal. [ 171 ] Dr. Ladham was asked whether the autopsy results were consistent with the deceased having been in a short fight where he was stabbed, then the fight ended, then the deceased removed his shirt and said “I’m dying”.

He said it was consistent. Dr. Ladham could not say why the deceased would have passed out but opined that his heart rate was likely elevated after the fight and being stabbed. He said in as little as 40 heartbeats a lot of Mr. Venne’s blood could have been pushed out of his system. He said if several minutes elapsed between the stabbing and passing out, this could have been from the loss of blood. [ 172 ] This was the case for the Crown. The defence elected not to call evidence. I heard final submissions and reserved my decision.

II. ISSUES [173] The issues in this trial are: 1. What are the applicable governing laws and principles? 2. Has the Crown proven its case beyond a reasonable doubt; specifically, has the Crown proven identity? III. ANALYSIS 1. What are the applicable governing laws and principles? [174] There are basic principles by which every criminal trial in Canada is conducted. While these might be seen astrite, in an era where assaults on fundamental rights and liberties are increasingly commonplace, these principles bear repeating. [175] First, every accused person begins every criminal trial as an innocent person.

He or she remains presumedinnocent throughout the trial. That is a fundamental right and freedom that, thankfully, has not been eroded over time, from pressure fromspecial interest groups, or through legislation. If that crucial presumption in our legal system is to have any true meaning, it must begiven effect in every case, and the presumption cannot be displaced unless the Crown discharges the burden it always carries and provesits case beyond a reasonable doubt. [176] As with any criminal matter, the presumption of innocence and the standard of reasonable doubt occupy centralroles in this case.

As I assessed the totality of the evidence in this case to determine whether the Crown had proven the case beyond areasonable doubt, I remained mindful of decisions such as R v Starr, 2000 SCC 40, [2000] 2 SCR 144, and R v Lifchus, (SCC), [1997] 3 SCR 320. I have carefully self-instructed that the burden of proof rests with the Crown and it never shifts. Mr.

Nelson-Smith was not obligated to prove anything during this trial, and certainly was not required to prove that he was not guilty of the chargesin the indictment. [177] I have also carefully self-instructed as to the standard of proof applying to each element of the offence based onthe totality of the evidence, rather than to each individual piece of evidence. The Crown need not prove every single fact or matter to thatstandard, nor must the Crown explain every issue or matter that arises in the course of a trial.

Rather, the Crown must amass sufficientevidence to satisfy the trier of fact of each element of the offences charged beyond a reasonable doubt. See R v Morin, (SCC), [1988] 2 SCR 345. The principles enunciated in that case were more recently reiterated by the Saskatchewan Court of Appeal inR v Alves, 2014 SKCA 82 at

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