HIS MAJESTY THE KING - v. -, 2022 SKKB 210

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 210 Date: 2022 09 20 Docket: CRM-SA-00174-2020 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - LEO ROY DANIELS Counsel: Sheryl J. Fillo for the Crown Blaine R. Beaven for the accused ___________________________________________________________________________ JUDGMENT MACMILLAN-BROWN J. September 20, 2022 ___________________________________________________________________________ A.

Introduction [ 1 ] Sometime between August 2 and August 3, 2019, Richard Fernuk met a tragic end. He was found dead in his apartment – with his ankles, wrists and neck bound to one of his kitchen chairs. His apartment was in a state of physical chaos. [ 2 ] Mr. Daniels denies ever having crossed the threshold of Mr. Fernuk’s apartment. There were no witnesses at trial who could speak to the circumstances of Mr. Fernuk’s death. Therefore, the crux of the Crown’s case – who killed Mr. Fernuk – is built upon a foundation of circumstantial evidence. [ 3 ] What ties Mr.

Daniels to the unlawful confinement and murder of Richard Fernuk? Video surveillance showing Mr. Fernuk and Mr. Daniels walking together in the vicinity of St. Paul’s Hospital. Witnesses who saw Mr. Daniels attempt to use Mr. Fernuk’s bank cards and prepaid credit cards at a Circle K store. Video surveillance showing Mr. Daniels sell Mr. Fernuk’s cell phone at the Hotel Senator. And, perhaps the most important piece of the evidential puzzle, Mr. Daniels’ DNA on the end of the fire poker found in the midst of the chaos in Mr. Fernuk’s apartment. [ 4 ] What path does the Crown ask me to walk in order to convict Mr.

Daniels of first degree murder? The Crown relies upon the constructive murder provision of the Criminal Code , RSC 1985, c C-46 – s. 231(5) (e) – alleging that Mr. Daniels murdered Mr. Fernuk in the course of unlawfully confining him. [ 5 ] The core question before me is this. Has the Crown proven beyond a reasonable doubt that it was Mr. Daniels – and not an unknown perpetrator – who killed Richard Fernuk? B.

The Indictment [ 6 ] The formal Indictment before this Court, dated May 14, 2020, reads as follows: LEO ROY DANIELS, of the City of Saskatoon, in the Province of Saskatchewan, stands charged that: Between the 2nd day of August 2019 and the 3rd day of August 2019 at or near SASKATOON, SASKATCHEWAN did: 1) Unlawfully cause the death of Richard Fernuk and did thereby commit first degree murder, contrary to section 235(1) of the Criminal Code . 2) Commit robbery against Richard Fernuk, contrary to section 344(1) of the Criminal Code . 3) Without lawful authority confine Richard Fernuk, contrary to section 279(2) of the Criminal Code .

C. Relevant Provisions of the Criminal Code

[ 7 ] The applicable provisions of the Criminal Code in relation to Count 1 of the Indictment – first degree murder – state: 222

(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being, (

a) by means of an unlawful act; … 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; … 231

(1) Murder is first degree murder or second degree murder. …

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: … (

e) section 279 (kidnapping and forcible confinement); …

(7) All murder that is not first degree murder is second degree murder. [ 8 ] With respect to Count 2 of the Indictment – robbery – s. 344(1) of the Criminal Code states: 344

(1) Every person who commits robbery is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [ 9 ] Finally, with respect to Count 3 of the Indictment – unlawful confinement – s. 279(2) of the Criminal Code states: 279

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) an offence punishable on

summary conviction. D. Overarching Principles of Criminal Law [ 10 ] There are certain immutable principles of criminal law that lie at the heart of every prosecution. Although these principles could be considered trite law, they are nonetheless fundamental to the Canadian system of criminal justice and bear repeating. [ 11 ] As with any criminal matter, the presumption of innocence and the standard of proof beyond a reasonable doubt are touchstone principles and are unassailable prerequisites to a finding of guilt of an offence charged. An accused begins a trial as an

innocent individual. The accused remains an innocent person throughout the entirety of the trial. That presumption of innocence remainsin place unless and until the Crown discharges the burden that lays upon it – proof beyond a reasonable doubt. This is a burden that nevershifts. In this regard, I am mindful of the direction of the Supreme Court in R v Lifchus, (SCC), [1997] 3 SCR 320 atpara 36, and I have instructed myself accordingly. [12] Reasonable doubt has been described as not a farfetched or frivolous doubt. Not a doubt based on sympathy orprejudice, but, rather, based upon reason and common sense.

A reasonable doubt must logically arise out of the evidence or a lackthereof. [13] The Crown need not prove anything to the level of absolute certainty in order to satisfy the burden of proofbeyond a reasonable doubt. That would be a virtually impossible threshold to cross. However, the standard of proof beyond a reasonabledoubt falls closer on the spectrum to absolute certainty than to “probable” or “likely” guilt. “Probably” and “likely” simply do not meetthe mark. (R v Starr, 2000 SCC 40, [2000] 2 SCR 144.) [14] The Crown need not prove every fact beyond a reasonable doubt.

The standard of proof is not applied to eachindividual piece of evidence. Rather, the Crown must prove each essential element of an offence beyond a reasonable doubt. I mustdetermine whether the Crown has successfully done so based upon on the totality of the evidence – not in a piecemeal fashion. [15] Evidence can be comprised both of direct evidence and circumstantial evidence. I am to take both direct andcircumstantial evidence into account. Both types of evidence are treated equally at law.

Neither is better or worse than the other. [16] As the trial judge, I must assess the evidence – the totality of the evidence – and determine whether I find it tobe credible. [17] When assessing the evidence of the witnesses, it is important to understand that no witness is perfect. Thememory is fallible. That is human nature. Measuring the credibility of a witness is not and cannot be a scientific endeavour. Further, Imust not stop at credibility when assessing the evidence of the witnesses. A witness must also be reliable. And, credibility andreliability, though intertwined, do not always go hand in hand.

Credibility cannot simply be a proxy for reliability. [18] I can accept all of what a witness says, some of what a witness says or none of what a witness says. Even if Ireject the evidence of a witness in some respects does not mean that I must reject his or her evidence in its entirety. [19] These are the bedrock principles of criminal law that have informed my decision in this case. E. The Evidence 1. Inventory of the witnesses at trial [20] The Crown called twenty witnesses over the course of this trial – nine lay witnesses, nine police witnesses andtwo expert witnesses. [21] The Crown’s lay witnesses were: 1.

Azizul Haque; 2. Campbell Raine; 3. Katelyn Janvier; 4. Murray Welder; 5. Nathan Rollock; 6. Reg Hermanson; 7. Shirley Fischer; 8. Leah Howie; and 9. Lindsay Dahl. [22] In addition, the Crown tendered the preliminary inquiry testimony of Allan Doell, who is deceased. [23] The police witnesses called by the Crown were: 1. Sgt. Van den Beuken; 2. Sgt. Evenson; 3. Cst. Gawryluk; 4. Sgt. Lund; 5. Cst. Koshman;

6. Cst. Pesony; 7. Cst. Hein; 8. Cst. Shwydiuk; and 9. Sgt. Brauner. [ 24 ] Finally, the two expert witnesses called by the Crown were: 1. Dr. Shaun Ladham; and 2. Dr. Melanie Green. [ 25 ] Leo Daniels testified in his own defence. 2. Exhibit P2 [ 26 ] Before embarking upon my

summary of the evidence, some explanation of Exhibit P2 is warranted. P2 is a USB that contains 13 sub-exhibits. Perhaps the most important of the sub-exhibits on the USB is P2(4) – which consists of 64 video surveillance clips. The significance of the video clips entered as P2(4) is that they track the footsteps of Mr. Fernuk and Mr. Daniels beginning in the early morning hours of August 2, 2019. [ 27 ] The video surveillance clips on the USB were introduced through Sgt. Lund of the Saskatoon Police Service [SPS]. Sgt. Lund was the lead investigator of Mr. Fernuk’s murder. 3.

Overarching observations on the evidence [ 28 ] I begin with four overarching observations about the evidence. [ 29 ] First, the Crown’s case relies quite heavily upon video, photographs and witness testimony to follow the trail of Mr. Fernuk and Mr. Daniels in the early morning hours of August 2, 2019. To a certain point in time, the evidence is uncontroverted because Mr. Daniels testified in his own defence and his evidence largely conformed to the video surveillance evidence and echoed the testimony of the Crown witnesses. [ 30 ] However, from the point at which Mr.

Fernuk was last seen on video – approximately 4:08 a.m. on August 2, 2019 – the trail he and Mr. Fernuk walked together can no longer be followed. The evidence diverges. Mr. Daniels tells a story that does not fit with the theory of the Crown’s case. If I believe Mr. Daniels or his evidence leaves me with a reasonable doubt, I must acquit him of first degree murder and unlawful confinement. [ 31 ] Second, though it is often useful to summarize the evidence on a witness-by-witness basis, that is not the case in this decision. Rather, the tale is best told as it unfolded on August 1 to 3, 2019.

I will proceed, for the most part, in a chronological fashion. [ 32 ] Third, a significant portion of the police investigation was dedicated to establishing a connection between Mr. Daniels and Mr. Fernuk. Mr. Daniels’ evidence at trial confirmed much of the evidence of the SPS police officers.

Therefore, my discussion of evidence surrounding the police investigation will be far more compressed that it otherwise might have been. [ 33 ] The fourth and final overarching observation I make is that I have not summarized the evidence of every witness, referred to every exhibit, or dealt with every submission made by counsel. However, I have considered the totality of the evidence and the submissions made by counsel in reaching my decision. 4. Richard Fernuk [ 34 ] At the time of his death in early August 2019, Mr. Fernuk was 68 years old, soon to turn 69 years old. He lived alone in an apartment on St.

Charles Avenue, Saskatoon. He was a father and a grandfather. [ 35 ] Mr. Fernuk was unemployed and living on CPP and OAS benefits. He supplemented his income by collecting cans and bottles. In addition, Mr. Fernuk would borrow money from friends and get food vouchers from a church on occasion. [ 36 ] There was some evidence that Mr. Fernuk had mental health problems and, in addition, suffered from a heart condition. 5. Leo Daniels [ 37 ] Mr. Daniels recently turned 40 years old. He was 37 years old at the time he allegedly murdered Mr. Fernuk.

He grew up on the One Arrow First Nation and completed Grade 9 and some life skills programming there. He worked on the First Nation for a year or two in a maintenance position. [ 38 ] In the summer of 2019, Mr. Daniels did not have a stable home. He moved between living with his sister and couch surfing with different women that he knew. He was addicted to methamphetamine and sold it on the streets in order to feed his habit. He would also make money fixing and trading or selling bikes and selling cell phones that he stole or obtained in exchange for meth. [ 39 ] Defence counsel described Mr.

Daniels’ lifestyle as one of drugs, theft and homelessness. In my view, that is an

apt characterization. 6. Campbell Raine’s home [ 40 ] Chronologically, the evidence with respect to the events in question begins with the testimony of Campbell Raine. Mr. Raine testified that he met Mr. Fernuk in June 2006 and that they remained in contact until Mr. Fernuk’s death. They would see each other relatively frequently during the summer months and less frequently during the winter. In 2019, Mr. Raine estimated that he saw Mr. Fernuk on a weekly basis. [ 41 ] On Thursday, August 1, 2019, Mr. Fernuk arrived at Mr. Raine’s apartment unannounced at approximately 9:30 p.m. and joined him for dinner. Mr.

Fernuk wanted to borrow $200 from Mr. Raine that evening. Although he had lent money to Mr. Fernuk in the past, Mr. Raine told Mr. Fernuk that he would not give him money until Mr. Fernuk could show proof that he had earned $100. Mr. Fernuk was upset by this, and that was the end of the conversation. He left Mr. Raine’s home shortly thereafter. [ 42 ] Mr. Raine went to bed at approximately 10:30 p.m. When he woke up the following morning, he found that Mr. Fernuk had sent him text messages while he was asleep.

The text messages, which began at 12:28 a.m. on Friday, August 2, 2019, read: Fri @ 12:28 AM Five truckers/ambulances & the police showed up for the entire sihit show when I collapsed in front of your building…yep, I’m in R.U.H. right fucking NOW…bye bye… 12:59 AM So what in the world has got ten over you…when in heaven ‘a name have ya done…your running faster than the speed of loneliness… your out there riunnin’ just to be on the run…sumbitch buddy…smarten the FUCK up ALREADY & LASSO THAT GAL!!!

RIGHT FUCKING NOW…SHEESH & HARUMPF!!! 1:12 AM When you wake up PLEASE pick me up…shit.pile of tests…blah yadda blah…like that…JUST like THAT…you’re partially Slavic… so you KNOW! My brother in arms..da bor ja!! 3:16 AM Meanwhile at the next bed over..the fat fuck is going into cardiac arrest & hey told me to turn the sound of music on my cell… [ 43 ] Mr. Raine responded to Mr. Fernuk’s texts when he woke up Friday morning: 6:42 AM Hi. I still there.!? 7:04 AM U still there!!!? 1:43 PM Do u have Donnas sunglasses. !!? [ 44 ] The next day, Saturday, August 3, 2019, Mr. Raine texted Mr.

Fernuk once in the mid-morning and again mid-afternoon: 10:03 AM Hi. U ok!!!????? 3:35 PM Hi. Come get your car!! [ 45 ] Thus, the last time that Mr. Raine saw Mr. Fernuk in person was in his apartment shortly before 10:30 p.m. on Thursday, August 1, 2019. The last text he received from Mr. Fernuk was on Friday, August 2, 2019, at 3:16 a.m. 7. The ambulance and St. Paul’s Hospital [ 46 ] Unbeknownst to Mr. Raine, after leaving the apartment, Mr. Fernuk called an ambulance and reported to the dispatcher that he was having chest pains. Mr.

Fernuk went down the stairs of the apartment and waited for the ambulance at the front of the building. [ 47 ] Nathan Rollock, a critical care paramedic, testified that he received the dispatch and drove to Mr. Raine’s apartment on MacPherson Avenue with lights and sirens, arriving at 10:52 p.m. When he arrived, Saskatoon City Police were already

there. Fire Services arrived shortly thereafter. Nathan spoke to Mr. Fernuk, who he described as uncooperative and agitated. It took some time – approximately 15 minutes - to persuade Mr. Fernuk to go to hospital. [ 48 ] Mr. Rollock reported that it was difficult to ascertain Mr. Fernuk’s physical condition because of his lack of cooperation. However, they were able to do an ECG in the ambulance, and it was not diagnostic of an acute heart attack. That being the case, Mr. Fernuk was transported to St. Paul’s Hospital rather than to Royal University Hospital [RUH].

According to the Agreed Statement of Facts exhibited as P1, the ambulance arrived at St. Paul’s Hospital at 11:15 p.m. [ 49 ] Reg Hermanson met Mr. Fernuk in about 2006 through his church. Mr. Fernuk came to church sporadically – generally every two or three weeks, but sometimes a month would elapse without him attending church. They were friends outside of church as well and would meet for coffee on occasion. [ 50 ] Mr. Hermanson testified that at some point on August 2, 2019, he received a call at home from Mr. Fernuk. Mr. Fernuk said that he was at Royal University Hospital and needed a ride home. Mr.

Hermanson drove to RUH but was unable to locate Mr. Fernuk. Someone at the hospital checked the computer system and advised him that Mr. Fernuk had actually been taken to St. Paul’s Hospital. [ 51 ] Mr. Hermanson drove to St. Paul’s Hospital but again was not able to locate Mr. Fernuk. After wandering through the Emergency Department, he spoke to a security guard and was advised that Mr. Fernuk had already left the hospital. He drove slowly away from St. Paul’s Hospital and followed the route that he expected Mr. Fernuk would use to walk home. However, he did not come across Mr. Fernuk. [ 52 ] Mr.

Hermanson sent two texts to Mr. Fernuk that assist with the timeline of events. His texts, Exhibit P2(11), read as follows: Friday, August 2, 2019 3:44 AM I’m just out in the emergency just outside I can’t find you come and find me 4:15 AM I stopped at our uh [RUH] emergency. They said you were at Saint Paul’s emergency. I can’t find you please call me Mr. Hermanson never received a response from Mr. Fernuk. [ 53 ] According to video surveillance footage, Mr. Fernuk left St. Paul’s Hospital at 3:46 a.m. on Friday, August 2, 2019. When he left St. Paul’s Hospital, Mr.

Fernuk was wearing a pair of shorts, a sleeveless Roughriders shirt, sandals and a ballcap. 8. Following the trail of Mr. Fernuk and Mr. Daniels (

a) Fire Creek Gas Station [ 54 ] The next time Mr. Fernuk was seen in the video surveillance footage tendered by the Crown was at approximately 3:53 a.m. at Fire Creek Gas Station [Fire Creek] – which is located across the street from St. Paul’s Hospital. The evidence of what occurred at Fire Creek emerged out of the video surveillance footage from various camera angles and from the evidence of Katelyn Janvier and Mr. Daniels himself. [ 55 ] In August 2019, Ms. Janvier worked as a clerk at Fire Creek Gas Station. At that time, Fire Creek was open 24 hours a day.

From midnight to 7:00 a.m., however, customers could not enter the store and were served through a window. [ 56 ] Ms. Janvier recalls Mr. Fernuk coming to the window and asking if she could help him charge his phone. He told her that he needed to charge his phone so he could call a friend who was supposed to pick him up from the hospital. She told him that the store does not lend out chargers and he would have to buy one. Ms. Janvier recalled that Mr. Fernuk did not have the money to do so. She also told him that she would try to call the friend for him, but he could not remember the phone number.

She offered to look up the number, but she could not hear the name Mr. Fernuk provided and so could not assist him. [ 57 ] Ms. Janvier was shown a clip from the Fire Creek video footage and was able to identify Mr. Fernuk. However, she was not able to recognize Mr. Daniels and had no memory of interacting with him. [ 58 ] Sgt. Lund testified that the time indicated on the Fire Creek video surveillance footage was approximately two hours behind real time. They were able to ascertain this time difference because the St. Paul’s Hospital video was found to be accurate and Mr.

Fernuk went directly to Fire Creek from the hospital. [ 59 ] The video footage from Fire Creek establishes that Mr. Fernuk approached the Fire Creek window at approximately 3:53 a.m. Mr. Daniels approached Mr. Fernuk at the Fire Creek window at 3:58 a.m. It appears that Mr. Fernuk and Mr. Daniels were talking. Very shortly after Mr. Daniels approached Mr. Fernuk, he took off his jacket and handed it to Mr. Fernuk. Mr. Fernuk put the jacket on and continued to wear it. [ 60 ] The video footage shows Mr. Fernuk and Mr. Daniels walking away from Fire Creek together at 4:05 a.m. (

b) St. Mary’s Credit Union [ 61 ] The next time Mr. Fernuk and Mr. Daniels were seen on the video footage, they were passing by St. Mary’s Credit Union [Credit Union]. According to the time stamp on the Credit Union video, they walked by at 4:04 a.m. Sgt. Lund testified that he believed the time stamp on the Credit Union video to be behind real time by just a couple of minutes. (

c) Westwood Funeral Home

[ 62 ] Mr. Fernuk and Mr. Daniels were next seen on video surveillance passing by the Westwood Funeral Home, which looks out over 20th Street. [ 63 ] The time on the video footage was 4:08 a.m. This footage is the last piece of evidence showing Mr. Fernuk alive. 9. Mr. Daniel’s account of the journey from Fire Creek to Westwood Funeral Home [ 64 ] Mr. Daniels identified himself in the Fire Creek video surveillance and confirmed that he was there on August 2, 2019. He said he recognized Fire Creek because his reserve owns the business and it is not far from his sister’s house. [ 65 ] Mr.

Daniels was asked to recount what occurred at Fire Creek. During his direct examination, he testified that he remembered being at Fire Creek but could not remember the details of what happened. His purported lack of a detailed memory was borne out in his testimony. [ 66 ] What did Mr. Daniels remember about Fire Creek? He testified that he had been getting high on meth in the alley behind Fire Creek and also drank almost a whole bottle of Wiser’s whisky in the three or four hours earlier. He recalled running into an older man in front of Fire Creek.

The man, who introduced himself as Richard, was wearing a T-shirt and shorts and looked like he was cold. Mr. Daniels gave Mr. Fernuk his own jacket – which he described as a black Roughriders jacket, with a little white on the front and left sleeve. [ 67 ] Mr. Daniels testified that Mr. Fernuk was looking for a phone charger and asked if he had one. He told Mr. Fernuk to ask the clerk because he did not have a charger. Mr. Daniels asked the clerk if Mr. Fernuk could put his phone in through the window to charge it, but the clerk said no. In this respect, Mr. Daniels’ evidence corresponds to that of Ms.

Janvier. [ 68 ] According to Mr. Daniels, he and Mr. Fernuk walked down 20th Street after leaving Fire Creek together. That path took them past the Credit Union and Westwood Funeral Home. 10. The robbery in the park [ 69 ] It is at this point – when Mr. Fernuk and Mr. Daniels were beyond the scope of any camera – that the evidence diverges. Because there were no Crown witnesses to provide direct evidence of what happened to Mr. Fernuk after he left the scope of the Westwood Funeral Home surveillance camera, I am left only with Mr. Daniels’ account by way of direct evidence. [ 70 ] According to Mr.

Daniels, he and Mr. Fernuk walked up to Avenue K and then down 19th Street. Mr. Fernuk told him he lived in the Exhibition area, so they continued to Avenue H until they got to a bridge with an underpass. Mr. Daniels couldn’t name the underpass other than to say it was a newer one and that it had a walkway underneath. [ 71 ] Mr. Daniels testified that he could not remember what he and Mr. Fernuk talked about on the walk together because he was high. He was getting tired and his leg was hurting – presumably from an injury that he suffered in a machete attack two or three weeks earlier.

When asked why he would walk with Mr. Fernuk, particularly when he was in pain from the machete wound, Mr. Daniels testified that he planned to rob Mr. Fernuk and wanted to get to a place where no one would be around if Mr. Fernuk yelled. [ 72 ] According to Mr. Daniels, after he and Mr. Fernuk crossed the bridge and were just past the big hill, he told Mr. Fernuk to “up his shit” – to give up his phone and credit cards. Mr. Daniels testified that he picked up a rock and told Mr. Fernuk that he would hit him with it and, at that point, Mr. Fernuk gave him the cards from his wallet and his phone. [ 73 ] Mr.

Daniels testified that he left Mr. Fernuk in the park and never saw him again. Mr. Fernuk was still wearing his jacket. This evidence is particularly relevant because the defence suggests that Mr. Daniels’ DNA could have been transferred from his jacket to the fire poker and that he was never physically present in Mr. Fernuk’s apartment. 11. Garage shopping [ 74 ] After robbing Mr. Fernuk in the park, Mr. Daniels said that he walked past the Exhibition grounds to go “garage shopping”.

The term “garage shopping” is a euphemism for checking garages in a particular area to see if they are unlocked or can easily be broken into in order to steal and then sell the contents taken from the garages. [ 75 ] Mr. Daniels testified that he entered a garage approximately a block and a half away from the Circle K store on Ruth Street. He fell asleep by the door of the garage for a bit but estimated that he was in the garage for 25 to 30 minutes. Because he was feeling tired and still had a little meth with him, he got high again. [ 76 ] Mr.

Daniels testified that he found a box with suits and ties in the garage. He stole two suits and a couple of ties. He was able to recall that one of the suits he stole was black or grey and the other was navy blue. He took them with him in a bag that he found in the garage. 12. Circle K (

a) The witnesses [ 77 ] Murray Welder testified that he frequents the Circle K store just about every morning, sometimes twice a day. On the morning of August 2, 2019, he was at the store and saw Mr. Daniels at the counter, interacting with Allan Doell – a long time Circle K clerk. He heard Mr. Doell tell Mr. Daniels that the card he was trying to use was declined. His recollection is that he also saw Mr. Daniels outside the store pulling other cards out of his pocket. Mr. Daniels was wearing a black jacket, black pants and a T-shirt. Mr. Welder’s recollection was that the suit jacket was too long for Mr. Daniels. He had no personal interaction with Mr. Daniels.

[ 78 ] Mr. Doell passed away between the preliminary inquiry and trial. After a voir dire on admissibility, the transcript and audio recording of his preliminary inquiry testimony were admitted as exhibits on the trial proper. Mr. Doell testified at the preliminary inquiry that Mr. Daniels attempted to purchase lottery tickets but the card he was trying to use kept getting declined. He also testified that Mr. Daniels was wearing a suit that was really loose. [ 79 ] Shirley Fischer is another Circle K clerk and was working when Mr. Daniels came into the store. Mr.

Daniels wanted a drink and attempted to use a prepaid Visa card for it. The card only had $2.00 left on it. He rifled through some other cards and tried to barter a bookstore gift card, which she refused to do. Ms. Fischer agreed to call a taxicab for Mr. Daniels but warned him that he would need cash. Mr. Daniels told her that he would barter with the cards he had or the suit. [ 80 ] With respect to the suit, Ms. Fischer testified that it was pinstriped and the jacket was two or three sizes too big for Mr. Daniels. As she described it, the shoulders of the suit hung two inches beyond Mr.

Daniels’ shoulders and the arms went down to his knuckles. [ 81 ] Ms. Fischer saw Mr. Daniels talk to the cab driver and then he left – walking east along Ruth Street toward Broadway Avenue. (

b) Mr. Daniels’ account of the Circle K activity [ 82 ] Mr. Daniels testified that after he finished “garage shopping”, he made his way to the Circle K store to try the cards he had stolen from Mr. Fernuk and buy some lottery tickets. He tried to tap a couple of the cards, but they did not work. They were declined four or five times. Mr. Daniels was able to use the prepaid Visa, however, and bought a Slurpee and some ice cream. [ 83 ] Mr. Daniels identified himself in the video surveillance footage from the Circle K. He was asked by his counsel why he was wearing the suit when it was clearly too big for him. Mr.

Daniels answered to the effect that he “thought it looked good” because the pocket said “Boss” on the outside. I will discuss the impact of that evidence shortly. (

c) The Circle K video surveillance [ 84 ] The video surveillance evidence confirms the evidence of the witnesses, including the evidence of Mr. Daniels. It also provides details as to the timeline. According to the surveillance video from the Circle K, Mr. Daniels arrived at the store at approximately 6:48 a.m. and walked through the door at approximately 6:50 a.m. [ 85 ] It was shortly before 7:00 a.m. that Mr. Daniels interacted with Mr. Doell. Mr. Daniels left the store at approximately 7:08 a.m., and the video from an exterior camera shows him at the front of the Circle K. Mr.

Daniels re-entered the store at approximately 7:40 a.m. and interacted with Ms. Fischer. Ms. Fischer called a cab for Mr. Daniels at 7:45 a.m., just as he was exiting the store. (

d) TD Bank evidence [ 86 ] Sgt. Lund testified that early in the investigation, they discovered that Mr. Fernuk had a TD Bank account. Accordingly, a request was made to TD Bank for information on any purchases that were made using Mr. Fernuk’s card after 4:00 a.m. on August 2, 2019. The Crown tendered affidavit evidence that there had been five attempts to use Mr. Fernuk’s TD card – four of which were at the Circle K store. Three attempts were for $75 and one attempt was for $20. All of these attempts, which occurred at approximately 7:00 a.m. on August 2, were unsuccessful.

One further attempt was made at a separate convenience store, but there was no further evidence before me in that regard. (

e) The taxicab [ 87 ] Azizul Haque drives a Riide taxicab. He recalled attending at the Circle K on Ruth Street on August 2, 2019, to pick up a customer. His taxicab was equipped with a video camera, and the video footage was played in court. He identified both himself and Mr. Daniels on the video. [ 88 ] According to the video footage from Mr. Haque’s taxicab, he arrived at the Circle K at 7:49 a.m. Mr. Haque’s recollection is that when Mr. Daniels approached his taxicab, he asked Mr. Daniels where he was going and if he had money. Mr. Daniels replied that he did not have any money but offered Mr.

Haque his phone in exchange for a ride. Mr. Haque was not interested in such an exchange and left the Circle K at 7:51 a.m. [ 89 ] Mr. Daniels’ recollection is that he tried to sell Mr. Fernuk’s phone or a suit for a cab ride but Mr. Haque would not trade. He was trying to get a ride downtown because his leg was hurting too much from the machete wound to walk. 13. Hotel Senator [ 90 ] Mr. Daniels testified that he walked away from the Circle K toward Broadway Avenue and did some more “garage shopping” along the way.

He stole a bike and made his way through alleys, crossed the Broadway Bridge and ultimately made his way to the Hotel Senator. He went inside to see if he knew anyone and bumped into his cousin, Carnell Daniels. [ 91 ] The Hotel Senator video surveillance shows Mr. Daniels entering and then sitting at a slot machine at 11:24 a.m. He was wearing a tie around his neck but was not wearing the suit jacket. He said that he had left the suit jacket outside the hotel on the stolen bike. Mr. Daniels identified himself in the video footage.

He testified that he was pushing buttons on the machine out of habit but he had no money with him at the time. The video also shows him pulling a phone out of his pocket. He testified that the phone is the one that he stole from Mr. Fernuk in the park. He sold the phone to Carnell Daniels for $30 and was last seen on camera at approximately 11:31 a.m.

[ 92 ] When asked what he did with the suits he had stolen, Mr. Daniels testified that he tried to sell them or give them away but he could not recall to whom. [ 93 ] Mr. Daniels testified that after the Hotel Senator, he probably went to his sister’s house but could not remember for sure. 14. The investigation (

a) Overview of the investigation [ 94 ] As stated, Sgt. Lund was the lead investigator into Mr. Fernuk’s death. His role as a witness was to encapsulate what the investigation involved and to consolidate the information that was gathered during the investigation. [ 95 ] As I indicated earlier, much of the evidence garnered through the police investigation was confirmed by Mr. Daniels himself and need not be reviewed in this decision. Rather, I will focus upon the discovery of Mr. Fernuk’s body and the forensic analysis of the crime scene by members of the SPS Identification Section. (

b) Discovery of Mr. Fernuk’s body [ 96 ] Cst. Gawryluk, a member of the SPS, testified that on the afternoon of August 3, 2019, he received a dispatch to conduct a welfare check on Mr. Fernuk at his apartment on St. Charles Avenue. Cst. Gawryluk arrived at the apartment building at 1:37 p.m. and made his way to Mr. Fernuk’s suite on the third floor. He noted that the door to Mr. Fernuk’s suite was closed and there was no sign of forced entry. There was no sound coming from the apartment. He knocked several times, but there was no response. [ 97 ] Although this did not come out in Mr. Raine’s evidence, Cst.

Gawryluk testified that Mr. Raine is the individual who contacted police to inform them that Mr. Fernuk had been released from hospital and had not been heard from for over thirty hours. [ 98 ] When Cst. Gawryluk received no response after knocking at the door, he contacted Mr. Raine, who gave him Mr. Fernuk’s cell phone number. He tried calling the number twice, but it went straight to voicemail both times. He contacted the building property manager in order to obtain access to Mr. Fernuk’s apartment. The property manager arrived and let Cst. Gawryluk and his sergeant into the apartment. Cst.

Gawryluk entered the apartment first, at 2:16 p.m. [ 99 ] Cst. Gawryluk slowly opened the door announcing police presence and called Mr. Fernuk’s name. He did not hear a response. As he made his way into the apartment, he saw a human foot sticking up in air and told his sergeant that he thought that there was a deceased person. He took another step forward and saw what he described in his evidence as an elderly male, bound to a tipped over chair with a gag in his mouth. [ 100 ] Cst. Gawryluk and his sergeant cleared the apartment to ensure that there was no one present.

Once the apartment had been cleared, he approached the male, who was later determined to be Mr. Fernuk, and checked for signs of life. It was clear that Mr. Fernuk was deceased, and Cst. Gawryluk did not attempt any life-saving measures. [ 101 ] Cst. Gawryluk testified as to what he observed when he entered the apartment. The gist of his evidence was that the apartment was in a state of disarray with contents strewn about. He viewed numerous photos of the crime scene and confirmed that the photos accurately depicted what he saw when he entered.

Because the photos were tendered through other police officers, however, I will more thoroughly summarize the scene in Mr. Fernuk’s apartment below. [ 102 ] As a brief aside, both Mr. Raine and Mr. Fernuk’s daughters, Leah Howie and Lindsay Dahl, described Mr. Fernuk as a tidy man. Mr. Raine described Mr. Fernuk as an 8.5 to 9 out of 10 on the “tidiness scale”. Ms. Dahl testified that her father was “fastidious” and did not keep a lot of junk. It is clear that the state of Mr. Fernuk’s apartment was not customary. (

c) Forensic analysis of the scene [ 103 ] The forensic analysis of Mr. Fernuk’s apartment took place over two days – August 3 and 4, 2019. [ 104 ] Sgt. Van den Beuken and Sgt. Evenson, both members of the SPS Identification Section, arrived at Mr. Fernuk’s apartment at approximately 2:15 p.m. on August 3, 2019. The priority on August 3 was to document the crime scene as it was found and to remove Mr. Fernuk’s body from the apartment. [ 105 ] As is standard practice, Sgt. Van den Beuken took video and Sgt. Evenson took photographs of the scene before anything in the apartment was disturbed. Sgt.

Van den Beuken was also tasked with collecting exhibits relating to Mr. Fernuk’s body so that it could be removed. [ 106 ] Sgt. Van den Beuken testified that they found Mr. Fernuk tied to a kitchen chair that was tipped over backwards. He was bound to the chair by his ankles and arms and, as they discovered once they removed the cords from around his arms, there were also cords around his neck that fastened him to the chair.

There were four types of cord, including what appeared to be cords to a computer monitor, a TV and a cord that appeared to have been cut from a vacuum cleaner found in the apartment. [ 107 ] Sgts. Van de Beuken and Evenson removed Mr. Fernuk’s body under the instructions of Dr. Ladham – the forensic pathologist who would later conduct the autopsy. He instructed that he wanted the body removed but that anything that was fastened around Mr. Fernuk’s neck was to remain. [ 108 ] Sgt. Van den Beuken testified that they originally tried to remove Mr. Fernuk’s body lying down in the chair as he was found.

However, once they realized that he was tied to the chair by cords around his neck, they moved him into an upright position in order to cut him away from the chair.

[ 109 ] Sgt. Van den Beuken and Sgt. Evenson returned to Mr. Fernuk’s apartment on August 4, 2019, to continue to examine and process the scene. Sgt. Van den Beuken swabbed for fingerprints and seized items that seemed out of place or that they thought might be of forensic or evidentiary value. Sgt. Evenson continued to take photographs of the scene. [ 110 ] Notable observations with respect to the apartment included: a. There was no damage to the door mechanism or door jamb or any other sign of forced entry into Mr. Fernuk’s apartment. b.

The apartment was in a state of considerable disarray, and it appeared that someone had searched the apartment. c. It was a very hot day in August, but it was also very warm in the apartment because the oven door was open and the oven was on. d. Many items in Mr. Fernuk’s apartment, small and large, had been touched, moved and/or damaged. e. Throughout the apartment, it appeared that someone was searching for something. By way of one example, there was a SaskTel box in the bedroom that had been removed from the wall and the cover had been taken off of it.

By way of another example, there was a clock on the kitchen table with the back removed. f. Many items had been taken out of closets and cupboards and were strewn about the apartment. g. The bedroom mattress was moved as if to search between two mattresses. h. In the living room, the wood fireplace mantel was damaged, and it appeared that it had been pried on both ends. A piece of wood was missing from the mantel and was found on the floor below. i. The fire poker appeared to be bent, and it was thought that it had perhaps been used as the pry tool because it was found close to the mantel. j.

Couches had been tipped over, and on one of them, the fabric on the bottom was cut, possibly to search inside the couch for something. k. It appeared that all the furniture in the living room had been pulled away from the walls. l. On one piece of furniture, Sgt. Van den Beuken observed a large oval shape devoid of dust that she surmised was from a television. However, there was nothing left in the apartment that would correspond with that shape. m. A leather satchel containing a laptop was left in the apartment. n.

What appeared to be a credit card or bank card was left in the apartment, as was a leather wallet. o. There were no fingerprints found in the apartment other than fingerprints confirmed to belong to Mr. Fernuk. [ 111 ] As part of the investigation, Sgt. Van den Beuken later requested authorization to send some of the exhibits that had been seized to the RCMP Forensic Laboratory for DNA analysis. She was ultimately authorized to send eleven exhibits which included, among others, cords used to bind Mr. Fernuk to the chair and the fire poker. [ 112 ] The cross-examination of Sgt.

Van den Beuken focused primarily upon two key areas: a. Items found in Mr. Fernuk’s apartment that were not seized or examined or for which there was no request made for DNA analysis. b. Items that were left in Mr. Fernuk’s apartment that one would have expected to have been taken in a robbery. [ 113 ] For instance, there were two wine goblets found in the apartment. Sgt.

Van den Beuken agreed with defence counsel that there could have been DNA on the wine goblets, and yet she did not seek authorization to send swabs of the goblets to the RCMP Laboratory for DNA analysis. [ 114 ] Regarding items that one would have expected to be taken, defence counsel pointed to what appeared in the scene photos to be a bank or credit card and also the leather satchel with a laptop inside it. [ 115 ] Sgt. Van den Beuken confirmed that she had been tasked with looking for a black jacket with white writing on it, but such a jacket was not located. [ 116 ] Sgt.

Van den Beuken agreed during cross-examination that she was surprised by the fact that there were prescription drug bottles that were lined up and orderly, and it was apparent that they had not been moved when much of the rest of the apartment had been overturned. She also agreed that, based upon the scene found in Mr. Fernuk’s apartment, it appeared that someone was searching for something. (

d) Arrest [ 117 ] Mr. Daniels was arrested without incident on August 7, 2019, shortly before 7:00 p.m. 15. Forensic evidence (

a) Autopsy report

[ 118 ] An autopsy was conducted on Mr. Fernuk’s body on August 6, 2019, by Dr. Shaun Ladham. Dr. Ladham prepared the autopsy report, and he testified at trial. Dr. Ladham was qualified as an expert without objection from the defence. [ 119 ] For the purposes of this decision, it is not necessary to embark upon a detailed

summary of Dr. Ladham’s evidence because the cause of Mr. Fernuk’s death is not in dispute. The most pertinent evidence was as follows: a. The cause of Mr. Fernuk’s death was ligature strangulation by two cords around his neck. b. There was an injury to the back of Mr. Fernuk’s head which was likely due to falling back in the chair and striking it on the floor. c. There was no blood on Mr. Fernuk’s clothing. d. There was a bruise on Mr. Fernuk’s right cheek, but the cheekbone was not fractured, and there was no indication that the bruise was caused by any significant force. e. There were no signs that Mr.

Fernuk struggled against the cords around his ankles and arms. f. Dr. Ladham could not determine the time of Mr. Fernuk’s death with any exactitude. The temperature in the apartment after Mr. Fernuk’s death was unknown and, therefore, the state of decomposition of his body did not allow Dr. Ladham to reliably pinpoint the time of death. (

b) DNA reports [ 120 ] DNA is the only evidence that ties Mr. Daniels to Mr. Fernuk’s apartment and, in turn, to Mr. Fernuk’s death. Therefore, Dr. Melanie Green, who was qualified as an expert witness in DNA analysis, was integral to the Crown’s case, and I will explore her evidence in some detail. [ 121 ] Dr. Green explained the process through which the RCMP Forensic Laboratory receives, processes and analyzes exhibits. She testified that the first step is that the investigating agency – in this case SPS – submits a form seeking to have particular exhibits authorized for analysis.

Not all of the exhibits that an investigating agency seeks to have analyzed are actually approved. Rather, there is a vetting process by which the request is narrowed to exhibits that may be more probative to an investigation. [ 122 ] After the exhibits are processed, a search technologist examines each exhibit for human biological materials such as semen, blood, hair and skin cells – materials that may contain DNA. Exhibits that may contain human biological materials are then forwarded to the DNA analysis unit where the DNA is processed. The electronic raw data obtained from that procedure is sent to Dr.

Green for

interpretation. That

interpretation forms the basis for her reports. [ 123 ] This process was undertaken in this case and formed the foundation of three reports authored by Dr. Green: a. November 27, 2019 [First Report]; b. March 31, 2020 [Second Report]; and c. August 21, 2020 [Third Report]. [ 124 ] The exhibits that were analyzed for the First Report included cords used to bind Mr. Fernuk to the kitchen chair, a swab of an end table in Mr. Fernuk’s apartment, a known sample of Mr. Fernuk’s DNA, a knife and, most importantly in the context of this case, the fire poker. [ 125 ] In her direct examination, Dr.

Green summarized her findings in relation to the eleven items that were analyzed. The only item that yielded what she described as a “meaningful comparison” was the fire poker. The fire poker was divided into two sections. Exhibit 9AA was the handle and adjacent portion of the rod and Exhibit 9AB was the remainder of the rod and the hook end of the poker. Her conclusion in relation to Exhibit 9AB was as follows: The DNA typing profile obtained from exhibit 9 (fire poker, area AB) is of mixed origin consistent with having originated from two individuals.

The profile of the major component is that of an unknown individual. This profile has been personally designated as Male 1. The donor of the known sample, exhibit 33 (FERNUK, Richard William), is not the source of this unknown profile. The profile of the trace component contains limited genetic information and no meaningful comparison can be made to any samples. [Emphasis added] [ 126 ] With respect to Exhibit 9AA – the handle of the poker and a portion of the rod – it was sampled for DNA but, according to Dr. Green, no meaningful comparison could be drawn. Dr.

Green testified that “no meaningful comparison” means that she was not able include or exclude a particular DNA typing profile. All that could be said about Exhibit 9AA is that the DNA was of mixed origin, consistent with having originated from three individuals, at least one of whom is male. [ 127 ] Dr. Green testified that she requested that the DNA of Male 1 be registered on the National DNA Database. The DNA of Male 1, which was found on the hook end of the fire poker, matched that of Mr. Daniels. The import of this “hit” is explained in Dr. Green’s Second Report as follows: 1.

The DNA typing profile obtained from exhibit 9 (fire poker, area AB) is of mixed origin consistent with having originated from two individuals.

The profile of the major component, previously designated as Male 1, matches that of the known sample, exhibit 47 (LD). The estimated probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 82 quintillion. The trace component contains limited genetic information and no meaningful comparison can be made to any samples. [Emphasis added] [ 128 ] When asked whether the fact that Mr. Daniels is Indigenous changes the statistical probability of the DNA belonging to a random individual, Dr.

Green testified that she also calculates the random match probability using three Indigenous populations. While the probabilities change somewhat, she stated that the magnitude of the match remains the same. The DNA profile does not transform from rare to common when the comparison of Male 1’s DNA is to the Indigenous population as opposed to the Caucasian population. [ 129 ] The DNA on the fire poker was not blood but Dr. Green could not say what type of cells were found.

She also testified that she was unable to determine when the DNA was deposited on the fire poker or what the person was doing at the time DNA was deposited. [ 130 ] The Third Report related to additional exhibits which were analyzed but no meaningful comparisons could be made in relation to those five exhibits other than matching to Mr. Fernuk. [ 131 ] Based upon the evidence of Dr. Green, there is no question but that Mr. Daniels’ DNA was found in Mr. Fernuk’s apartment. It was found on the hook end of the fire poker.

I accept that evidence without reservation. [ 132 ] The defence focused its cross-examination on the concept of secondary or transfer DNA. Mr. Daniels’ counsel cross-examined Dr. Green on the possibility that an individual’s DNA could have been transferred from a jacket to a fire poker without that individual actually handling the fire poker. The purpose of this line of cross-examination was presumably to explore whether it was possible for Mr. Daniels’ DNA to have ended up on the fire poker by way of the jacket that he lent to Mr. Fernuk even though Mr.

Daniels had never entered the apartment. [ 133 ] The exchange between Dr. Green and defence counsel on this topic is as follows – which I provide with the caveat that it is taken from my typed notes of the evidence as opposed to an official transcript: Q. So, primary transfer would be me, for example, bleeding on this table, that would be primary transfer and if you found my blood on this table, correct? A. Yes. Q. Okay.

Secondary transfer would be if I, say for example, cut myself and there was blood on this table and I cleaned it up with a rag and then I put it on another table and you tested that table and found my DNA, that would be secondary transfer? A. If you transferred the rag from the original table to the second table and then…yes. That would be an example of secondary transfer. Q. So DNA can be transferred from item to item without the primary source being the one that deposited it on the final item? Do I have that right? A. Yes. Yes you do. Q.

So, for example, if an individual was wearing a jacket and had worn that jacket for some time and their DNA was on parts of that jacket, and item, like say a fire poker, came into contact with that jacket, it would be possible for the individual who was wearing jacket, their DNA to end up on the fire poker. Do I have that correct? A. It is theoretically possible. However, in that case, we would be talking about skin cells most likely if we are just talking about an individual wearing a jacket.

So, probably not blood which is an excellent source of DNA and certainly a much better source that just touching an object. So, it is possible that just wearing a jacket and then using that jacket to touch another object would transfer the DNA to that object, it is possible. Certainly not as likely as if we were talking about the blood that we were talking about before. Q. And on this fire poker there was no blood, correct? A. Correct. Q. Could have been skin cells? A. It could have been skin cells, yes. Q. Could have been saliva? A.

Could have been, yes. [ 134 ] On re-examination, the Crown explored the concept of transfer DNA and the following exchange took place – again coming from my typed notes: Q. On that last question when you were talking about theoretically possible? Perhaps could you explain that a little bit more in terms of what you have experienced in terms of transfer of skin cells from what specifically my friend is talking about, a, a jacket or some type

of material onto another object and that object being something with a hard surface. The only thing we are talking about here today of course specifically is that fireplace poker. Are you able to explain a bit more on that? A.

It is certainly possible that if an individual was wearing a jacket, especially if they had been wearing that jacket for an extended period of time, that skin cells would deposit on that jacket and that if they had then touched an object such as this fire poker with the particular area of jacket which has been in contact with their skin and it has gotten enough DNA or skin cells there that they could be transferred to the fire poker. That is possible. Whether or not it would give sufficient amount of DNA to be recovered off the fire poker and to develop a DNA typing profile could be debated.

There’s no way to know how many skin cells would have been present on that jacket and how many skin cells could have been deposited on that fire poker. So it’s a question that, as I said, it’s possible that this could happen. How likely it is that we would be able to develop a DNA typing profile from that fire poker simply because an individual touched it with a jacket that had been worn by an individual for an extended period of time – I’m not able to say. Certainly it would be better if it was another biological material. Again, it’s possible.

Probably not that likely but I can’t exclude it as a possibility. [ 135 ] I make three observations in relation to Dr. Green’s evidence on the concept of transfer DNA. [ 136 ] First, Dr. Green testified that while she could not exclude the possibility that an individual’s DNA could end up on an object even though that individual did not touch that object, it is not probable that DNA would transfer in such a fashion. Indeed, she described the possibility as being “theoretically possible”. [ 137 ] Second, one of the qualifiers that Dr.

Green attached to her evidence in relation to transfer DNA is that the jacket was worn by the individual in the hypothetical for an “extended period of time”. She was not asked any questions as to how long an “extended period of time” would be and, in the same vein, was not provided with any information as to how long the individual in the hypothetical had worn the jacket. [ 138 ] Third, my words on paper in this decision do not adequately convey the level of skepticism that Dr. Green displayed about the theoretical possibility of transfer DNA when testifying.

That skepticism certainly came through and was amplified in both the tone of her voice and her expression. 16. The “Hugo Boss” suit [ 139 ] After Mr. Daniels testified, the Crown applied to re-open its case and call rebuttal evidence. The two witnesses were Mr. Fernuk’s daughters, Leah Howie and Lindsay Dahl. Both women had attended the preliminary inquiry and virtually the entire trial and so heard all of the evidence, including Mr. Daniels’ testimony that one of the suits that he stole while “garage shopping” said “Boss” on the outside pocket. [ 140 ] According to Ms. Howie and Ms. Dahl, Mr.

Daniels’ evidence that the suit bore the Boss label twigged their recollection of conversations that they had with their father before his death. [ 141 ] Ms. Howie described her father as a dreamer that would come up with “big ideas” for businesses but that his ideas would never come to fruition. One of his ideas sprung out of a Hugo Boss suit he purchased at a thrift store. His concept was that he would buy high-end men’s clothing from thrift stores and then re-sell them at a higher price. He thought there was a high demand for used high-end men’s clothing. Ms. Dahl echoed the testimony of Ms.

Howie. [ 142 ] The fact that Ms. Howie and Ms. Dahl had a conversation with Mr. Fernuk about a used Hugo Boss suit when Mr. Daniels testified he stole a Boss suit when garage shopping was, at first blush, striking evidence. It could potentially establish a further connection between Mr. Fernuk and Mr. Daniels. [ 143 ] However, I am not able to ascribe any weight to the evidence of Ms. Howie and Ms. Dahl. Both placed their conversations with their father in time based upon events in their lives. Ms.

Howie’s best guess was that the conversation took place after her father moved to Saskatoon in 2002 but before the birth of her first daughter in 2012. Ms. Dahl estimated that the conversation took place while she was in university – perhaps between 2003 and 2007. Even if I take the outside edge of the estimated time frame, the conversation they had with their father would have taken place at least seven years before Mr. Fernuk was killed. This is too tenuous a connection to draw any inferences. [ 144 ] Though I cannot give weight to their evidence, I want to make it clear that Ms. Howie and Ms.

Dahl were credible witnesses. I am wholly satisfied that Ms. Howie and Ms. Dahl were being truthful in their evidence. There was no hint of collusion between them. I had no sense that they were taking advantage of the fact that they heard Mr. Daniels testify. [ 145 ] This concludes my

summary of the evidence at trial. F. Elements of the Offences [ 146 ] It is unnecessary for me to outline the elements of the offence of robbery. Mr. Daniels concedes that he is guilty of robbery. His admission of guilt stems from his evidence that he robbed Mr. Fernuk in the park, however, and not in the manner alleged by the Crown. [ 147 ] The elements of the offence of constructive first degree murder that must be proven by the Crown beyond a reasonable doubt include the following: a. Mr. Daniels was the person who committed the offence. b. The offence occurred at the time and place set out in the Indictment. c. Mr. Daniels committed an unlawful act that caused the death of Mr. Fernuk.

d. Mr. Daniels intended to cause Mr. Fernuk’s death or bodily harm that was likely to cause Mr. Fernuk’s death and was reckless aboutwhether or not it caused death. e. Mr. Daniels’ participation in the murder was such that his actions were a substantial cause of Mr. Fernuk’s death. f. Mr. Daniels is guilty of the underlying offence of unlawful confinement by intentionally physically restraining Mr. Fernuk withoutlawful authority. g. Mr. Fernuk’s death was caused while Mr.

Daniels was committing the offence of unlawful confinement. [148] The defence has conceded that the individual who committed the offences alleged in the indictment would beguilty of first degree murder because Mr. Fernuk was murdered while being unlawfully confined – bringing the offence under theumbrella of s. 231(5) of the Criminal Code. [149] At the crux of this case is the element of identity. Has the Crown proven beyond a reasonable doubt that it wasMr. Daniels who caused Mr. Fernuk’s death in the course of unlawfully confining him? G.

R v W.(D.) Framework [150] It is trite law that when an accused testifies, the Court must embark upon what is colloquially know as a W.(D.)analysis (R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)]). In W.(D.), the Supreme Court laid a path that is to be walkedby the trial decision-maker. The stepping stones along the W.(D.) path are: a. If I believe the evidence of the accused, I must acquit. b. If I do not believe the evidence of the accused but I am left in reasonable doubt by it, I must acquit. c.

Even I am not left in doubt by the evidence of the accused, I must acquit unless, on the evidence I do accept, I am convinced of theguilt of the accused beyond a reasonable doubt. [151] Importantly, the W.(D.) framework does not create an exercise of deciding which of two versions of events tobelieve. [152] Although the W.(D.) analysis need not be undertaken with mathematical precision, it must nonetheless be clearthat the trial judge has, in substance, traversed the W.(D.) path in their analysis of the evidence. H.

Circumstantial Evidence [153] There were no Crown witnesses who could speak to the circumstances of Mr. Fernuk’s death. The Crown had torely to a significant extent upon circumstantial evidence as opposed to direct evidence. Therefore, an exploration of the nature ofcircumstantial evidence, and how it dovetails with the Crown’s obligation to prove the elements of the offences beyond a reasonabledoubt, is warranted. [154] Direct evidence comes from the testimony of witnesses who are able to describe what they personally saw orheard or felt.

Direct evidence garners its strength or weakness from a witness’ ability to perceive the events, to recall them and toaccurately convey what occurred. If accepted as credible and reliable, a witness’s testimony directly proves the subject matter of thatwitness’s testimony. [155] Circumstantial evidence, on the other hand, is evidence that proves a fact or facts from which the Court is askedto draw inferences. An inference is a conclusion of fact that logically flows from other facts that the Court accepts. To draw an inference,the Court cannot resort to conjecture or speculation.

Rather, an inference must be a natural and logical inference driven by the facts thatare found to have been proven. [156] Both direct and circumstantial evidence are admissible evidence in a criminal trial. The law treats both kinds ofevidence equally. Neither is better or worse than the other.

I can believe or rely upon either one as much or as little as the other indeciding this case against the backdrop of the totality of the evidence – both direct and circumstantial. [157] The leading case in relation to circumstantial evidence is that of the Supreme Court in R v Villaroman, 2016 SCC33, [2016] 1 SCR 1000 [Villaroman].

Villaroman has since been adopted in a legion of decisions, including decisions of our Court ofAppeal in R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223, and R v Learning, 2019 SKCA 5 [Learning]. [158] In Learning, at paras 24 to 26, the Court of Appeal summarized the principles that emerged out of Villaroman andstated as follows: [24] Importantly, the Court in R v Villaroman had earlier commented on the reasoning process in cases of circumstantial evidence,noting: (a) “The inferences that may be drawn from [an] observation must be considered in light of all of the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense” (at para 30). (b) “In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts” (at para 35). (c) “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt” (atpara 35).

(d) “[A] reasonable doubt, or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack ofevidence. As stated by this Court in Lifchus, a reasonable doubt ‘is a doubt based on reason and common sense which must be logicallybased upon the evidence or lack of evidence’: para. 30 (emphasis added). A certain gap in the evidence may result in inferences otherthan guilt.

But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light ofhuman experience and common sense” (at para 36). (e) “When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonablepossibilities’ which are inconsistent with guilt” (at para 37). (f) “[T]he Crown thus may need to negative these reasonable possibilities, but certainly does not need to ‘negative every possibleconjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused’. …‘[O]ther plausibletheories’ or ‘other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence of evidence, noton speculation” (at para 37; emphasis in original).

Drawing on all of this, the Court said (at para 38) that the “basic question” in such cases is “whether the circumstantial evidence, viewedlogically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.” [25] On this basis, the question for an appeal court in a case of circumstantial evidence is not whether there were other possibleexplanations for what happened.

The question is whether the trial judge unreasonably concluded that the evidence, when taken as awhole and when applying common sense, human experience and logic to determine the probability of outcomes, leads to only onereasonable conclusion, namely, that the accused committed the crime.

To paraphrase the Court in R v Villaroman (at para 69), while notevery trier of fact may inevitably have reached the same conclusion as the trial judge did in this case, her conclusion need only be areasonable one. [26] Coming at this question from another angle, the Court in R v Dipnarine (at paras 24–25) said the presence of competinginferences does not necessarily mean a finding of guilt is an unreasonable verdict.

Rather, if the trier of fact considers an alternativeinterpretation of the circumstances, taken as a whole, to be unreasonable or irrational, the trier of fact is not bound to give effect to thatalternative simply because it is impossible to exclude it entirely. In concluding its analysis, the Court said: “The law does not requiresuch proof to absolute certainty: see R v Lifchus, (SCC), [1997] 3 SCR 320 at para 30.” I. Analysis [159] I begin my analysis with this observation. A criminal trial is not, and must not be, a credibility contest.

I am not tocompare the evidence tendered by the Crown to the evidence of Mr. Daniels and decide which version I believe more. To do so would beto improperly shift the burden of proof and place it upon Mr. Daniels’ shoulders. 1. The forensic evidence [160] I accept without hesitation the expert evidence of Dr. Ladham and Dr. Green. Their evidence was, as it should be,objective and based upon a solid factual and scientific foundation. I accept as fact that the cause of Mr. Fernuk’s death was ligaturestrangulation. I also accept as fact that the DNA that was on the fire poker found in Mr.

Fernuk’s apartment belonged to Mr. Daniels. [161] Notably, the defence took no real issue with Dr. Green’s evidence in and of itself. Rather, the defence’s positionis that Dr. Green’s DNA analysis supported a reasonable inference other than that posited by the Crown. That is, her evidence left openthe possibility that Mr. Daniels’ DNA was transferred from his jacket to the fire poker. I will discuss this further below. 2. The police witnesses [162] The evidence of the police witnesses was likewise uncontroverted.

Indeed, the evidence with respect to theirinvestigation and the results of their investigation became somewhat redundant because the evidence was confirmed by Mr. Daniels’own admissions – that he was the individual with Mr. Fernuk at Fire Creek Gas Station, St. Mary’s Credit Union and Westwood FuneralHome, that he stole Mr. Fernuk’s bank cards and attempted to use them, and that he stole Mr. Fernuk’s phone and sold it to CarnellDaniels. 3. The lay witnesses [163] I accept the evidence of the Crown’s lay witnesses without hesitation.

The witnesses were credible and reliable –though I was unable to give weight to the evidence of Ms. Howie and Ms. Dahl for the reasons I have already explained. The evidence ofthe lay witnesses was corroborated by objective and reliable evidence in the form of the video surveillance, and it meshed with theevidence of Mr. Daniels himself. [164] The difficulty with the evidence of the lay witnesses and the video surveillance is that this evidence only took meto 4:08 a.m. on August 2, 2019 – when Mr. Fernuk was last seen alive in the video surveillance.

The evidence tendered by the Crowncould not tell me what happened to Mr. Fernuk after he left the sight of the camera at Westwood Funeral Home. The only direct evidenceis that of Mr. Daniels himself. 4. Assessment of Mr. Daniels’ evidence [165] With the first two W.(D.) stepping stones in mind, do I believe Mr. Daniels or does his evidence leave me with areasonable doubt as to his guilt? [166] Mr. Daniels’ evidence boils down to this. He and Mr. Fernuk walked together from Westwood Funeral Home toExhibition Park where he robbed Mr. Fernuk – taking Mr. Fernuk’s phone and cards out of his wallet.

Then, they parted ways; Mr.Fernuk still wearing Mr. Daniels’ jacket. He never saw Mr. Fernuk again.

[ 167 ] After leaving Mr. Fernuk in the park, Mr. Daniels went on to “garage shop”, go to the Circle K to try to use the cards and later to the Hotel Senator where he sold the phone and played the slots. Mr. Daniels denies entering Mr. Fernuk’s apartment and denies unlawfully confining and murdering Mr. Daniels. Mr. Fernuk, according to Mr. Daniels, was the victim of an unidentified perpetrator. [ 168 ] Mr. Daniels’ testimony confirmed what could be seen on the video surveillance, but he could add little else from his own memory – which became more and more apparent during cross-examination.

He often fell back on the rote answer that he could not remember details and relied upon being drunk and tired. [ 169 ] For instance, when asked on direct examination what other conversations took place at Fire Creek other than Mr. Fernuk asking the clerk if he could charge his phone, Mr. Daniels could not remember. When asked how long he and Mr. Fernuk took to walk to Exhibition Park, he answered that he didn’t know. When asked what he and Mr. Fernuk talked about on the walk, he answered that he did not remember and said that he was high. When asked what he did with the cards that he stole from Mr.

Fernuk after Circle K, Mr. Daniels said he didn’t remember. These are but a few examples. [ 170 ] Curiously, Mr. Daniels memory seemed to improve and his evidence became more detailed where there was no evidence to counter his story and where it would promote the narrative that he robbed Mr. Fernuk in the park and never saw him again. For instance, Mr. Daniels recalled the precise route that he and Mr. Fernuk took from the Westwood Funeral Home to Exhibition Park. He recalled that Mr. Fernuk’s phone was in his pocket and that his wallet was in his back pocket.

He recalled the precise colour of the two suits that he stole from the garage when he was “shopping” before going to the Circle K. He recalled that the suits were folded nicely. He recalled that the suit jacket that he wore had “Boss” on the front pocket. He recalled how much he sold Mr. Fernuk’s cell phone for and how much he originally asked for it. [ 171 ] There were areas in his cross-examination where Mr. Daniels strayed in his answers between direct examination and cross-examination. For instance, on direct examination, he testified that Mr. Fernuk introduced himself as Richard at Fire Creek.

On cross-examination, the Crown asked whether he actually remembered that Mr. Fernuk’s name was Richard or whether he only knew the name because he was charged with murdering Mr. Fernuk. Mr. Daniels’ explanation for knowing Mr. Fernuk’s name was Richard was that they shook hands. When pressed and asked where he and Mr. Fernuk shook hands, presumably because that was not shown anywhere in the video surveillance footage, Mr. Daniels reverted to “I don’t know. I think we did.” When asked, “Are you making that up”, his answer was “I don’t know.” [ 172 ] On his direct examination, Mr.

Daniels testified that when he told Mr. Fernuk to “up his shit”, Mr. Fernuk said he did not want to. Mr. Daniels picked up a rock and told Mr. Fernuk he would hit him with it. At that point, Mr. Fernuk gave him his phone and the contents of his wallet. On cross-examination, however, Mr. Daniels testified that he picked up the rock by the bridge and showed it to Mr. Fernuk in the park when Mr. Fernuk refused to give up his phone and contents of his wallet. In other words, he already had the rock. Indeed, he talked about tossing the rock up and down as he and Mr.

Fernuk were walking. [ 173 ] The inconsistencies in Mr. Daniels’ evidence may seem incidental or peripheral had each stood alone but, collectively, his selective memory casts a long shadow over his credibility. [ 174 ] The most problematic aspect of Mr. Daniels’ testimony - and the primary reason that I reject his version of events - relates to the jacket that he lent to Mr. Fernuk at Fire Creek. [ 175 ] On direct examination, Mr. Daniels described his jacket as a Roughriders jacket that was black with some white detailing on the front and left sleeve. He testified that he gave it to Mr.

Fernuk because he seemed cold. As to what happened to the jacket after he allegedly left Mr. Fernuk in Exhibition Park, Mr. Daniels testified that he forgot about his jacket and did not remember that Mr. Fernuk was wearing it. He testified that he did not ask to take the jacket back because he had already got what he wanted from Mr. Fernuk – the bank cards and his phone. [ 176 ] On cross-examination, however, Mr. Daniels was thrown by the question of why he did not take the jacket back. For instance, when Crown counsel asked how long he intended to let Mr. Fernuk keep the jacket, Mr.

Daniels answered, “until the next day” and “whenever he could drop it off”. When asked for more details about a conversation about the jacket, however, Mr. Daniels stated that he “could not recall”. When asked, “Did you ask him to drop the jacket off and tell him where”, Mr. Daniels responded, “No, I just told him he could keep it until the next day.” [ 177 ] This evidence is completely contrary to his evidence on direct examination that he did not ask to take the jacket back and, in fact, forgot that Mr. Fernuk was wearing it. [ 178 ] Later in cross-examination, Mr.

Daniels reverted to once again saying that he did not take the jacket back because he forgot about it – just as he had in direct examination. He also testified that he did not remember actually giving Mr. Fernuk the jacket until he saw the video from Fire Creek. [ 179 ] In my view, Mr. Daniels’ evidence was deliberately crafted to place the jacket in Mr. Fernuk’s hands and himself out of Mr. Fernuk’s apartment. His story began to unravel on cross-examination, and he clearly grasped at whatever purported explanation he could find to rehabilitate his evidence that he left Mr.

Fernuk in the park – still wearing his Roughriders jacket – and never saw him again. [ 180 ] Although Mr. Daniels’ evidence surrounding the jacket may seem somewhat innocuous or peripheral at first glance, the jacket is integral to the defence’s position that Mr. Daniels’ DNA was found in Mr. Fernuk’s apartment because it came off the jacket that he lent to Mr. Fernuk. In other words, the jacket is the linchpin of the defence’s argument that there is an alternative inference to draw from the DNA evidence. [ 181 ] This leads me back to the first two W.(D.) questions. Do I believe Mr. Daniels?

Or does his evidence leave me with a reasonable doubt? The answer to both questions, I find, is no. Where his evidence diverges from the evidence led by the Crown, I

do not believe him. Nor does his evidence raise a reasonable doubt in my mind. 5. The totality of the evidence [ 182 ] My analysis does not end here, however. The W.(D.) framework directs me to travel further and ask myself – on all of the evidence that I do accept, has the Crown proven the elements of the offences charged beyond a reasonable doubt? Has the Crown proven beyond a reasonable doubt that it was Mr. Daniels who unlawfully confined and killed Mr.

Fernuk? [ 183 ] For the answer to that question, I must cast my eyes primarily upon the circumstantial pieces of the evidential puzzle. [ 184 ] The Crown’s theory is this. From Westwood Funeral Home, Mr. Fernuk and Mr. Daniels went to Mr. Fernuk’s apartment. Mr. Daniels unlawfully confined Mr. Fernuk, and Mr. Fernuk died of asphyxiation as a result. Mr. Daniels is connected to Mr. Fernuk’s death by his DNA on the fire poker found in Mr. Fernuk’s apartment. The Crown’s position is that the DNA evidence leads inexorably to the reasonable inference that Mr. Daniels was in Mr.

Fernuk’s apartment and unlawfully confined and killed him. That, according to the Crown, is the only reasonable inference to be drawn from the DNA evidence. [ 185 ] On the totality of the evidence, particularly the DNA evidence, I find that a reasonable inference to draw is that Mr. Daniels was the individual who unlawfully confined and murdered Mr. Fernuk. [ 186 ] The question then becomes whether there is a reasonable alternative inference to be drawn from the circumstantial evidence. Is transfer DNA – that Mr. Daniels’ DNA came from the jacket that he lent to Mr.

Fernuk even though he never entered the apartment – an alternate inference that can be reasonably drawn in this case? [ 187 ] Importantly, Mr. Daniels does not have to prove that his DNA ended up in Mr. Fernuk’s apartment by way of transfer DNA. Rather, if I find that transfer DNA is another reasonable inference to be drawn from the circumstantial evidence, I must acquit. There is no other evidence to place Mr. Daniels in Mr.

Fernuk’s apartment other than his DNA on the fire poker. [ 188 ] The question of whether the circumstantial evidence is reasonably capable of supporting an inference other than guilt is to be undertaken on a contextual basis. As stated in Villaroman at para 38 , a core question for the trier of fact considering circumstantial evidence is “whether the circumstantial evidence, viewed logically and in light of human experience , is reasonably capable of supporting an inference other than that the accused is guilty. [ 189 ] Similarly, “if the trier of fact considers an alternative

interpretation of the circumstances to be unreasonable or irrational , the trier of fact is not bound to give effect to that alternative simply because it is impossible to exclude it entirely”. ( R v Power , 2022 SKCA 24 at para 76 .) [ 190 ] Thus, circumstantial evidence need not exclude all other conceivable inferences. The circumstantial evidence in a given case, in combination with the totality of the evidence, must exclude reasonable inferences. [ 191 ] In my view, the alternate inference of transfer DNA that has been proffered by the defence is irrational, and I am not bound to accept it simply because Dr.

Green could not absolutely exclude the possibility that an individual’s DNA could end up on an object without the individual actually handling the object. [ 192 ] Dr. Green’s evidence that this scenario would be “theoretically possible” must be considered against the backdrop of what would be required in order for transfer DNA to constitute a reasonable alternative inference on the totality of the evidence. [ 193 ] That is – Mr. Fernuk would have been a victim of a random robbery by Mr. Daniels, returned home and shortly thereafter become a victim of a violent home invasion by a different perpetrator.

Somehow, during this period of time, Mr. Daniels’ jacket would have had

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