R v Sutherland, 2022 ABKB 705

Court of King’s Bench of Alberta Citation: R v Sutherland, 2022 ABKB 705 Date: 20221028 Docket: 201063500Q1 Registry: Calgary Between: His Majesty the King Crown - and - Justin Sutherland Accused _______________________________________________________ Decision of the Honourable Justice W.T. de Wit _______________________________________________________ I. Introduction [ 1 ] Mr. Justin Sutherland is charged with second-degree murder contrary to s. 235 of the Criminal Code . On September 21, 2020, Dustin Kusch, the deceased, was stabbed at the residence located at 4835 1st St.

NE., Calgary, and died while lying on the front steps of that residence. The accused and two other individuals were at the residence at the time of the stabbing. These two other individuals testified as witnesses for the Crown and implicated the accused as the person who stabbed the deceased. Video cameras at the residence captured what occurred outside the residence and on the front steps of the residence, but there were no cameras inside the

residence where the stabbing occurred. [2] During this trial both the Crown and defence have provided a number of agreed statement of facts which have narrowed theissues in this case and saved significant court time. The defence has admitted a number of judicial authorizations and the admissibility ofsubsequent evidence or information gathered. There is significant video evidence in this case as a result of cameras on the outside of theresidence which recorded what occurred before, during and after the stabbing in this case. The defence have conceded the admissibilityof this video evidence.

I will refer to the evidence in this case, in more detail, when I discuss the relevant issues. II. Issues [3] The main issues in this case are: 1. Whether the Crown has proven beyond a reasonable doubt that it was the accused who stabbed the deceased, and 2.

Whether the Crown has proven the requisite mens rea for murder. [4] These two main issues have resulted in a number of legal and factual issues such as a determination of the credibility ofunsavoury witnesses, statements made by the accused to an undercover officer, the post offence conduct of the accused as recorded bythe video evidence in this case and a 911 call made by the accused. 1. Whether the Crown Has Proven Beyond a Reasonable Doubt That It Was theAccused Who Stabbed the Deceased – Identity [5] The video evidence clearly places the accused, Mr. Sutherland, at the residence when the stabbing took place.

There is nodirect evidence of the accused being the individual who stabbed the deceased. However, the Crown provides evidence which they argueproves identity, that is that the accused committed the stabbing in this case, beyond a reasonable doubt. With respect to the issue ofidentity, the Crown relies on the evidence of the two other individuals, Darren Bulldog and Savannah Bulldog, who were also present inthe residence when the stabbing took place.

The Crown also relies on the video evidence which shows the actions of the accusedimmediately after the stabbing and the 911 call which the accused makes immediately after the stabbing. The Crown also relies on astatement made by the accused to an undercover officer in police cells approximately a week after the stabbing. There was significantDNA evidence admitted at trial, but that evidence merely corroborated much of the video evidence which clearly placed the accused atthe residence in question at the time of the stabbing. [6] The defence did not call any evidence and the accused did not testify. a.

Unsavoury Witnesses [7] Before recounting the evidence of Darren Bulldog and Savannah Bulldog I will first discuss the law regarding the evidenceof unsavoury witnesses. Both the Crown and defence agree that Darren Bulldog and Savannah Bulldog are unsavoury witnesses.Unsavoury witnesses, also known as Vetrovec witnesses (See: R v Vetrovec (SCC), [1982], 1 SCR 811, R v Khela, 2009SCC 4), are witnesses which may have reliability and/or credibility issues.

A witness may become unsavoury when they have an amoralcharacter, criminal lifestyle, past dishonesty, are accomplices or have an interest in the outcome of the trial which may lead a trier of factto being unable to trust them to tell the truth. [8] In this case both Darren Bulldog and Savannah Bulldog have significant criminal records and a criminal lifestyle. They werepresent in the residence when the stabbing took place.

Defence counsel put to them that they were responsible for the stabbing, to whichboth witnesses clearly stated “no” and the defence called no evidence that they were responsible for the stabbing of the deceased.However, in cross-examination, Savannah Bulldog admitted that when she was being interviewed by Detective Lindemann, he suggestedto her that she could either be a witness or a murderer, which could suggest that she might have an interest in the outcome of the trial.

Attrial, she clearly testified that she “told the truth” when speaking to Detective Lindemann. [9] Where a witness is unsavoury, it is dangerous to convict on that witnesses’ testimony unless their version of events iscorroborated by other evidence.

However, in Khela, at para. 37 the Supreme Court made it clear that even where a witness is unsavoury,a trier of fact is entitled to convict on their uncorroborated evidence if they are satisfied the evidence is true. [10] Corroborating evidence should be independent of the Vetrovec witness: (Vetrovec, at para 39), and not tainted by a connectionto the Vetrovec witness. In this case, there was no evidence that Darren Bulldog and Savannah Bulldog spoke to each other regardingtheir evidence, and this was not suggested by defence counsel.

Corroborating evidence should also be material and there is norequirement that the corroborating evidence implicate the accused. That is, the evidence need not directly corroborate the allegedunlawful actions of the accused. In Khela, the court stated at para. 41: Individual items of confirmatory evidence need not implicate the accused. As Dickson J. Explained in Vetrovec: The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece ofevidence which tends to convince us that he is telling the truth.

Evidence which implicates the accused does indeed serve to accomplishthat purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. [11] The court in Vetrovec provided the following quotation which logically explains that corroborative evidence need not be withrespect to the alleged unlawful actions of the accused, at para 34: The majority of the court emphasized that what was required was confirmation of a material particular of the evidence of the

complainant. Once such confirmation was supplied, her testimony was rendered credible as a whole. Spence J., speaking for the majority,put the matter in this way (p. 615): It is a material particular of that evidence which must be corroborated. There is no requirement that the whole of her evidence becorroborated. Were that the requirement, there would be no need for even the evidence of the complainant. The so-called corroborativeevidence would be sufficient for a conviction. [12] There is no bar to the use of one Vetrovec witness’ testimony to corroborate the testimony of another Vetrovec witness.

In R vRoks, 2011 ONCA 526 the court made this clear at para 67: Despite the bar against mutual corroboration by those who were participes criminis under the former accomplice rule, there may not be asimilar injunction against mutual confirmation by Vetrovec witnesses, at least in the absence of a finding of collaboration or collusionamong them: R. v. Winmill (1999), (ON CA), 131 C.C.C. (3d) 380 (Ont. C.A.), at para. 120; R. v. Pollock (2004), (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 161; R. v. Naicker (2007), 2007 BCCA 608 , 229C.C.C. (3d) 187 (B.C. C.A.), at para. 34; R. v.

Illes (2007), 2007 BCCA 125 , 217 C.C.C. (3d) 529 (B.C. C.A.), at paras. 30-31,reversed on other grounds, 2008 SCC 57 , [2008] 3 S.C.R. 134 (S.C.C.). [13] In R v Illes, 2013 BCCA 169, the accused was charged with murder and accomplices provided evidence for the Crownagainst the accused. One of these accomplices was given immunity and there was evidence of collusion between him and otheraccomplices. The court stated at paras 38-39: In R. v. Drabinsky, 2011 ONCA 582 (Ont. C.A.) , leave to appeal ref'd (2012), [2011] S.C.C.A.

No. 491 (S.C.C.), a submission similar tothat of the appellant here was rejected by the Ontario Court of Appeal, at para. 136: Nor do we see any support in logic or law for the proposition that a finding that Messina lied about one part of the evidence demandedthe rejection of the rest of her evidence. Certainly her collusion with Craib to give false testimony was yet another reason to view herevidence with great caution. It was not, however, a reason to reject the entirety of her evidence without careful scrutiny.

The trial judgeultimately determined that her evidence about other meetings, particularly in October 1997 and February 1998, was credible not onlybecause it was consistent with other testimony and documents but, perhaps most importantly, because it was "confirmed by the reality ofLivent". In my opinion, Khela did not establish an absolute bar to the use of the evidence of one unsavory witness, even if tainted by collusion onsome matters, to corroborate the evidence of a second unsavory witness on other matters.

To the contrary, the case reminds us that a trierof fact must keep in mind that, while it is dangerous to convict on unconfirmed evidence of this sort, a jury or a judge is entitled to do soif satisfied that the evidence is true. This view accords with the reasoning of this Court in R. v. Tse, 2013 BCCA 121 (B.C. C.A.),delivered after the reasons for judgment of the trial judge. [14] As I stated earlier there is no evidence of collaboration or collusion between Darren Bulldog and Savannah Bulldog.

Some ofthe differences in their evidence, such as whether Darren Bulldog immediately went to bedroom 3 or first went to bedroom 1 for a shortperiod of time, which I will deal with in detail when reviewing Darren and Savannah Bulldogs evidence, shows that there is nocollaboration. [15] Both Darren Bulldog and Savannah Bulldog have criminal records. Darren Bulldog has a criminal record which was markedas exhibit 2 in these proceedings. His criminal record begins as a youth in 1997 and his last conviction was in February 2022.

Hiscriminal record includes 78 convictions which are comprised of a wide variety of offences. These offences include numerous assaults andassaults with a weapon, numerous failures to comply with recognizances and failures to attend court and failures to comply withdispositions, as well as convictions for theft, possession of proceeds of crime, fraud and identity fraud, possession of drugs andpossession of firearms. The longest sentence given for any offence was 13 months imprisonment for aggravated assault. [16] Savannah Bulldog also has a criminal record which was marked as exhibit 10 in these proceedings.

Her criminal recordincludes 14 convictions from 2013 to 2021.Those convictions include theft, producing and having possession of controlled substances, aswell as failure to comply with court orders and recognizances. The longest sentence given to Savannah Bulldog was 14 days presentencecustody for failing to comply with a recognizance, failing to attend court and possession of a controlled substance. [17] The evidence of Darren and Savannah Bulldog corroborates each other to a great degree.

However, there are someinconsistencies in their evidence which the defence argues should cause this court to disregard their evidence. I will refer to this evidencewhen I review the evidence of Darren and Savannah Bulldog. In my view, the video evidence set out in exhibit 11 in these proceedingsand the photographic evidence set out in exhibit 12, corroborates much of Darren and Savannah Bulldog’s evidence regarding whatoccurred on September 21, 2020 at the residence. There was no evidence or suggestion that Darren Bulldog or Savannah Bulldogreviewed the videos and/or photographs prior to giving their testimony.

When I consider Darren and Savannah Bulldog’s evidence alongwith the video CCTV evidence, the after-the-fact evidence of the accused and the statement of the accused given to the undercoverofficer, it restores my trust in their evidence. This is so even though the defence argues that there are inconsistencies between theevidence of Darren Bulldog and Savannah Bulldog and the phone records of Darren Bulldog. As I indicated I will discuss those defencearguments when dealing with the evidence of Darren and Savannah Bulldog.

In my view that evidence does not lead me to discount theevidence of Darren and Savannah Bulldog. i. Evidence of Darren Bulldog [18] It is not disputed that there were three bedrooms on the main floor of the residence. Exhibit 12, is a book of exhibitscomprised of 12 tabs. At Tab 3 page 12 there is a scene diagram of the residence. This diagram sets out the bedrooms that were locatedon the main floor and lists them as bedrooms 1, 2 and 3. It is not in dispute that the owner of the house, Mr. McPherson resided inbedroom 2. Darren Bulldog and Savannah Bulldog were staying in bedroom number 3.

It is unclear how often the accused resided inbedroom number 1, but the uncontradicted evidence was that he stayed in this bedroom on at least a couple of occasions and resided

there the evening prior to the date of the stabbing. [ 19 ] The evidence at trial included video evidence taken from a body camera worn by Constable Stephen Greenhough that was marked as Exhibit 5. The video recorded the inside of the residence shortly after police arrived on scene. Exhibit 12, Tab 3 pages 50-86 provides a number of photographs of the inside of the residence, including the bedrooms on the top floor and the hallway leading into those bedrooms.

Those photographs show a significant amount of blood on the floor in front of bedroom 1 and a significant amount of blood on the pillow in bedroom 1. [ 20 ] Darren Bulldog testified as to the circumstances surrounding his occupation of bedroom 3 in the residence. That evidence is corroborated by the evidence of the owner Mr. McPherson and the evidence of Savannah Bulldog. Darren Bulldog testified that the accused stayed in bedroom 1 on a couple of occasions and was staying in that room on the evening of September 20-21, 2020.

Darren Bulldog also testified as to what he did and where he went on the morning of September 21, 2020. This testimony was confirmed by video CCTV evidence of him at a local Denny’s restaurant. Darren Bulldog also testified that he attended at a bank with the deceased and that the deceased took some money out of the bank which is corroborated by bank records. The money was found on the deceased’s body. He also testified that he returned to the residence with the deceased, which is confirmed by the video CCTV evidence. The CCTV evidence shows the deceased and Darren Bulldog walking back to the residence.

There does not appear to be signs of them being angry with each other or of any difficulty between them. [ 21 ] Darren Bulldog testified that when he returned to the residence, he and the deceased went into bedroom 1 and the accused, Mr. Sutherland, was also in bedroom 1. He testified that they were talking but could not recall what they were talking about, but that they were standing, talking and scheming about things like how to make money. He also testified that he only stayed in bedroom 1 for a short period of time and then proceeded down the hall into bedroom 3.

Darren Bulldog testified that he went to bedroom 3 to change his shirt because he had spilled either ketchup or hot sauce on it at the Denny’s restaurant. Darren Bulldog was asked in cross examination if he changed his shirt and he testified that he was pretty sure that he changed his shirt and that he had left it in bedroom 3. Defence counsel indicated during closing arguments that it appeared from the video that he still had the same shirt on when he went to the front door after the deceased had been stabbed and was lying on the front steps and that this was an inconsistency in his evidence.

This was not put to Darren Bulldog in cross examination. In my view this is a very small inconsistency, and it is easy to understand that he may have been mistaken as to the timing of his action in removing the shirt when he gave his testimony at trial, two years after the events in question. It was never put to Darren Bulldog, in cross-examination, that he was untruthful or mistaken with respect to changing his shirt when he said he did. [ 22 ] Darren Bulldog also testified that Savannah Bulldog was cooking burgers in the kitchen when they came home.

He testified that after he returned to bedroom 3, Savannah Bulldog brought him a burger although he could not be sure if she brought him a fork and knife. There is photographic evidence showing a burger on a plate in bedroom 3. Savannah Bulldog did not testify that she brought Darren Bulldog a burger in bedroom 3. However, she was not questioned about taking a burger to bedroom 3 in examination in chief or cross-examination. [ 23 ] Darren Bulldog testified that the accused and the deceased were both in bedroom 1, while he was in bedroom 3 and he could hear someone talking.

He testified that what he heard was kind of yelling, but not really arguing, but that he was pretty sure it was coming from the accused and the deceased. Later in his testimony, Darren Bulldog testified that he had seen a couple of arguments between the accused and the deceased on earlier occasions, but that it was nothing and was just arguing.

Darren Bulldog testified that there was only himself, the accused, the deceased, and Savannah Bulldog in the residence at the time. [ 24 ] Darren Bulldog testified that when he heard the yelling he went out into the hallway and saw the deceased come out of bedroom 1 and the deceased was holding his neck. Darren Bulldog testified that the deceased said: “help me” and that he then went to the bathroom and got a couple of towels because the deceased was bleeding, and he could see blood on the deceased’s neck.

He testified that when he saw the deceased in the hallway, with a bloody neck, he also saw the accused close to the living room, in the Hallway going to the living room area. [ 25 ] Darren Bulldog further testified that he did not call an ambulance, but he heard someone doing so because he heard a dispatcher. In examination in chief, Darren Bulldog indicated that he did not call an ambulance because he didn’t have a phone. He then stated that he wasn’t too sure, as it all happened pretty fast. He then indicated that he had a phone, but it was a text now phone and only worked on Wi-Fi.

In cross-examination, Darren Bulldog again stated that his phone only worked on Wi-Fi and that it barely worked in that house. During final argument, defence counsel argued that Darren Bulldog said that he didn’t have a phone, but that the phone records show that he had a phone and had been speaking on the phone that morning. In cross-examination, it was never put to Darren Bulldog that he could not speak to others on his phone. Darren Bulldog testified that it could have been the accused who was calling 911.

This is not an issue in this case as the evidence sets out that it was the accused who called 911 for help for the deceased. His answers regarding not having a phone were in the context of the 911 call made after the deceased was stabbed and his comments do not negatively affect his credibility or reliability. [ 26 ] Darren Bulldog then testified that the deceased went out the front door of the residence and followed the deceased to the front of the house. Darren Bulldog testified that he saw the deceased sit down on the steps and then slump. Shortly after, the accused walked out of the front door.

He testified that he [Darren Bulldog] went up to the front door but never exited the front door and neither did Savannah Bulldog. The video evidence confirms Darren Bulldog’s evidence of what the accused did when exiting the front door of the residence, however, it shows Darren Bulldog briefly going out the front door but going back into the residence almost immediately.

The video confirms a great deal of Darren Bulldog’s evidence and differences are minor and, in my view, do not negatively affect his reliability or credibility. [ 27 ] Darren Bulldog then testified that he saw the accused dig into the deceased’s pockets and pull out something and throw it and then dig into the other pocket and take out car keys and then take off. The video clearly confirms this is exactly what occurred and that the accused left the scene by taking the deceased’s car. [ 28 ] He testified that all these events took between 15 minutes and half an hour. Darren Bulldog further testified that after the

accused left, he grabbed a sweater and Savannah Bulldog grabbed some other things and they left out the back door of the residence. They had warrants for their arrest and knew the police would be coming. Darren Bulldog did not want to get arrested. Again, this is confirmed by the video CCTV evidence. [ 29 ] In cross-examination, defence counsel asked Darren Bulldog if he had put any knives in the dishwasher and he stated he did not put anything in the dishwasher. Defence counsel put to Darren Bulldog that he was the person in bedroom 1 when the deceased gets hurt and he answered “no, I’ll take a polygraph”.

He also denied that Savannah Bulldog was the lookout for him. ii. Evidence of Savannah Bulldog [ 30 ] Savannah Bulldog provided evidence that she lived at 4835 1st Street NE Calgary and that she and Darren Bulldog stayed in bedroom 3. She testified that the accused lived in bedroom 1. She further testified that on September 21, 2020, in the early afternoon she was in the kitchen at the residence and that she was finishing cooking burgers. She recalled seeing the accused come out of bedroom 1.

She testified that the accused was freaking out: “like had his hands on his head and like it looked like like you know like what have I done you know”. She testified that the deceased then came out of the same bedroom 1 and he was all bloody with a shirt on his neck. [ 31 ] Savannah Bulldog testified that before the accused and deceased came out of bedroom 1 she had her headphones in one ear and she heard a little bit of arguing, but couldn’t say what the words were. She indicated that she then heard “a little bit of a scuffle and then a yell”.

She was asked in cross-examination whether the accused or deceased said anything to her, and she answered “no”. She testified that, at the time this occurred, Darren Bulldog was in bedroom 3. [ 32 ] Savannah Bulldog stated that the next thing that occurred was that she moved back towards the kitchen and the deceased came towards the kitchen and stayed in the kitchen hallway area and that he stated: “I can’t breathe. I can’t breathe.” She said the deceased further stated: “I don’t want to die”. She then testified that she heard Darren Bulldog tell the accused to call an ambulance or something like that.

She didn’t know if anyone called an ambulance. [ 33 ] Savannah Bulldog testified that the deceased then went outside and she could clearly see this as she was standing by the stove in the kitchen. She testified that she could then see the deceased try to go down the stairs, after he had exited. This is confirmed by the video CCTV evidence. Savannah Bulldog testified that the accused stated to her: “go get him, go get him.” And that she then answered stating: “no. What the fuck? You go get him.” She testified that the accused then went outside and this is again confirmed by the video CCTV evidence.

Savannah Bulldog further testified that she basically just stood there the whole time and that she just wanted to get out of there. She explained that she wanted to get out of there because she knew the police would be coming and she had warrants for her arrest. [ 34 ] Savannah Bulldog testified that she was wearing sandals and later changed out of those sandals. She did not know what happened to the sandals.

She was asked in examination in chief to describe what the accused was doing and she stated that: “he’s basically just walking around and freaking out, like don’t know what to do, basically.” This is again confirmed by the CCTV video evidence which showed the accused in somewhat of a panicked state and moving around in a hurried manner, while outside the residence on the front deck and stairs where the deceased was located. This testimony is also confirmed by the 911 call made by the accused immediately after the stabbing, a transcript of which is found at exhibit 12, tab 8.

In the 911 call the accused is clearly in a panicked state. [ 35 ] Savannah Bulldog testified that Darren Bulldog came out of bedroom 3 once he heard the yell. She testified that Darren Bulldog got mad at the accused and told him: “not to bring no bullshit here.” She further testified that Darren Bulldog tried to help the deceased by grabbing a towel and giving it to the deceased and told him to hold pressure on it and not to let go. According to Savannah Bulldog this all took a couple of minutes to occur.

Savannah Bulldog stated that she never went out of the front of the house and that is again confirmed by the video CCTV evidence. She testified that the deceased had gone outside once, was pulled back in and then went outside a second time. He never came back into the residence. This is confirmed by the video CCTV evidence. [ 36 ] Savannah Bulldog testified in examination in chief that she went into bedroom 3 and changed into her pants and runners, grabbed her purse and bank card and then left out the back door with Darren Bulldog. This again is confirmed by the video CCTV evidence.

She testified that she was scared of sticking around there because of the warrants. She was asked in examination in chief if she had anything to do with the deceased death and she stated: “no”. [ 37 ] In cross-examination, defence counsel put to her that when she was interviewed by Detective Lindemann, he gave her a choice of being a witness or being the murderer and she agreed with this suggestion. Defence counsel then put to her that Detective Lindemann told her that he believed that she was a witness and again she agreed.

She also agreed that Detective Lindemann, during his interview with her, wanted to hear what she had seen when the deceased was killed. She also agreed that Detective Lindemann had told her that he wanted to hear that she was a witness. Savannah Bulldog then stated to defence counsel: “I didn’t do anything wrong” and when she was asked if she had stabbed the deceased she stated “no”.

Defence counsel again put to Savannah Bulldog that the Detective had given her a choice to be a witness or the person who did this and she answered: “I told him the truth”. [ 38 ] In cross-examination, Savannah Bulldog testified that Darren Bulldog and the deceased returned to the residence and Darren Bulldog went directly into bedroom 3 while the deceased went into bedroom 1. She agreed with defence counsel that Darren Bulldog did not ever go into bedroom 1 with the accused and deceased. She maintained that this was her recollection of what had occurred at the residence on September 21, 2020.

Defence counsel in argument indicated that this was a contradiction to the evidence of Darren Bulldog which was that he first went into bedroom 1 and then bedroom 3. However, Darren Bulldog indicated in his testimony that he went into bedroom 1 for a short period of time and then proceeded to bedroom 3. In my view, it is possible that Savannah Bulldog did not see Darren Bulldog go into bedroom 1 or that she is simply mistaken because of the passage of time. She clearly testified that Darren Bulldog proceeded to bedroom 3 and this is confirmed by Darren Bulldog.

In cross-examination, defence counsel put it to Savannah Bulldog that it was her and Darren Bulldog who were in bedroom 1 when the stabbing took place and she denied this and stated: “no”. No evidence was called by the defence contradicting her evidence that she was never in bedroom 1. Savannah Bulldog was never asked if she brought a plate with a burger on it to Darren Bulldog in bedroom 3.

[ 39 ] In cross-examination, defence counsel asked Savannah Bulldog if she had ever talked to her father, Eddie Bulldog about what had occurred in the residence on September 21, 2020. She answered: “No. I don’t I don’t think so”. She was then asked by defence counsel whether she ever told Eddie Bulldog that she got away with it, what happened in the house. She answered: “I don’t remember if I told my dad anything.” She was then asked if she remembered if she told her dad that she was keeping a lookout or “keeping six” at the house when this happened and she answered: “no”.

She was also asked whether she had told Eddie Bulldog that Darren Bulldog was involved in what happened to the deceased and she answered: “no”. Defence counsel also asked her if she had told her dad that she was in the room and she answered “no”. [ 40 ] Eddie Bulldog was called as a witness in this case by the Crown and during his testimony he stated that Savannah Bulldog had told him at the beginning of 2022 or end of 2021, that she was “keeping six” and that he then told her that if she was “keeping six” she was just as much involved and she should own up to it.

Eddie Bulldog was asked by the defence if Savannah Bulldog had told him that Darren Bulldog was involved and he stated that she had not. Eddie Bulldog also testified that Savannah Bulldog had stated to him that she got away with it when referring to the situation in Calgary, but he also stated that she said it was the second time she got away with it.

Eddie Bulldog also testified that at the time the statements were made to him by Savannah Bulldog she was using drugs and that he had picked her up because she had been beaten up by Darren Bulldog. [ 41 ] The defence argues that Eddie Bulldog’s evidence contradicts Savannah Bulldog’s evidence, and this negatively affects her reliability and credibility and I should not accept her evidence. The Crown takes the position that Eddie Bulldog’s evidence is suspect. In the circumstances Eddie Bulldog came across as a forthright witness.

However, there is no evidence that he recorded or wrote down his conversation with Savannah Bulldog. Savannah Bulldog, in her testimony indicated for the most part that she could not remember her discussions with her father. This would be understandable, especially if she was using drugs at the time. Eddie Bulldog confirmed her evidence that she never said that Darren Bulldog was involved, and she clearly testified that she and Darren Bulldog were not involved in the stabbing of the deceased.

By “keeping six” or lookout she was clearly not indicating that she was the one who did the stabbing, and she did not implicate Darren Bulldog at any time. [ 42 ] When I take into consideration the CCTV video evidence, the 911 call evidence, as well as the evidence of Darren and Savannah Bulldog, there is a significant amount of corroboration of Darren and Savannah Bulldog’s evidence. Neither Savannah nor Darren Bulldog were impeached in cross examination with prior inconsistent statements or clear serious contradictions. There is no evidence contradicting their assertion that Mr.

Sutherland was the only person in bedroom 1, other than the deceased, at the time of the stabbing. This is not a W.D. case where there is another version of events that the court must consider. The evidence of Darren and Savannah Bulldog is not contradicted by any other evidence. Any inconsistencies between their evidence are minor and easily explained by the passage of time and does not affect the reliability or credibility of their evidence regarding the accused being the only person in bedroom 1 when the deceased was stabbed.

There is no doubt that both Darren and Savannah Bulldog have criminal records and are unsavoury witnesses. However, in my view the corroborating video CCTV evidence, 911 phone evidence, each other’s evidence and the accused’s statement that he stabbed an individual all corroborate the evidence of Darren and Savannah Bulldog and remove the dangers related to unsavoury witnesses. I accept the evidence of Darren and Savannah Bulldog. b. Post-Offence Conduct [ 43 ] In this case there is post offence conduct or after the fact conduct, of the accused, which in my view is highly probative and reliable.

This post offence conduct is found in the video CCTV evidence, exhibit 11 and the audio recording of the 911 call made by the accused immediately after the stabbing, which is found at exhibit 12. After the deceased was stabbed and after he had exited the residence and collapsed on the stairs leading down from the residence, the accused telephoned 911 for an ambulance and then took the deceased’s keys and ran down the steps and drove off in the deceased’s vehicle.

In the circumstances of this case the post offence conduct of the accused is probative with respect to the issues of identity and the accused’s intent or state of mind. [ 44 ] In R v Calnen , 2019 SCC 6 , Justice Martin, dissenting in part, described after-the-fact conduct as circumstantial evidence and stated at paras. 111-112: After-the-fact conduct is circumstantial evidence. Like other forms of circumstantial evidence, after-the-fact conduct allows a fact finder to draw particular inferences based on a person's words or actions: see White (1998), at para. 21; White (2011), at para. 22; Peavoy , at para. 24.

This process of inductive reasoning is a cornerstone of the law of evidence, and is used frequently to draw inferences from circumstantial evidence, as well as to assess credibility and to determine the relevance and probative value of evidence: see D. M. Tanovich, " Angelis : Inductive Reasoning, Post-Offence Conduct and Intimate Femicide" (2013), 99 C.R. (6th) 338 . In order to draw inferences, the decision maker relies on logic, common sense, and experience. As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence.

The inferences that may be drawn "must be reasonable according to the measuring stick of human experience" and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties' positions, and the totality of the evidence: R. v. Smith , 2016 ONCA 25 , 333 C.C.C. (3d) 534 (Ont. C.A.), at para. 77 . That there may be a range of potential inferences does not render the after-the-fact conduct null: see R. v. Allen , 2009 ABCA 341 , 324 D.L.R. (4th) 580 (Alta. C.A.), at para. 68 .

In most cases, it will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them.

"It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct": Smith, at para. 78 . [ 45 ] The admissibility of post offence conduct was also discussed in R v White, 2011 SCC 13 , and the court indicated that post offence conduct evidence is very broad and refers to anything done by the accused after the commission of the offence. (See also: Calnen at paras 107- 110 ) The court went on to state at para 22: The principle that after-the-fact conduct may constitute circumstantial evidence of guilt remains good law.

At its heart, the question of whether such evidence is admissible is simply a matter of relevance (White (1998), at para. 23). As Major J. noted in White (1998), " [e]vidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role" (para. 21). As with all other evidence, the relevance and probative value of post-offence conduct must be assessed on a case-by-case basis (para. 26)...

[46] There is no issue in this case that the post offence conduct of the accused is admissible. Defence counsel took no issue withthe admissibility of this evidence. This evidence is clearly relevant to the issues of identity and intent for murder. All evidence called in acriminal trial must pass the test for admissibility, that its probative value outweighs its prejudicial effect. The post offence conduct, inthis case, favours both the Crown on the issue of identity and the defence on the issue of intent or state of mind. i.

Identity [47] Post offence conduct can often be relevant to more then one issue in a criminal trial as stated by Justice Doherty in R vMackinnon, 1999 CarswellOnt 405 at para 14: Evidence of after-the-fact conduct is a type of circumstantial evidence. Its potential probative value will depend upon the nature of theevidence, the issues in the case and the positions of the parties.

Often, evidence of after-the-fact conduct will be probative of theaccused's participation in the crime alleged, but will have no probative value in determining the level of the accused's culpability.Sometimes, however, as a matter of common sense and human experience, the evidence will be capable of supporting an inference thatan accused had a particular state of mind: R. v. White (1998), (SCC), 125 C.C.C. (3d) 385 (S.C.C.) at 400-403. ii. Flight From the Scene of the Crime [48] There are many examples of post offence conduct providing probative evidence of identity.

In R v Peavoy, (ON CA), 1997 CarswellOnt 2689, the Ontario Court of Appeal discussed fleeing from the scene of the crime and stated at para 27: Often, after-the-fact conduct may be relevant to the issue of the identity of the person who committed the crime: White, supra; R. v.Dunn (1990), (BC CA), 56 C.C.C. (3d) 538 (B.C. C.A.); R. v. Tzimopoulos (1986), (ON CA), 29C.C.C. (3d) 304 (Ont. C.A.).

Where, for example, a person denies being the person who engaged in an assault on another person, butwas seen fleeing from the scene of the crime by someone who knew him, the trier of fact may (not must) conclude that flight from thescene was more consistent with a person who had committed a culpable act. The evidence is, therefore, relevant to the question of theidentity of the person who committed the assault.

On the other hand, where the accused admits being the person engaged in a fight,after-the-fact conduct will add nothing to the issue of identity and has no relevance in that regard. [49] The video CCTV evidence and audio of the 911 call in this case clearly show that the accused was acting in a hurried andpanicked manner and going in and out of the house when the deceased was lying on the front steps. The video evidence then shows theaccused, again in a hurried manner, go down the front steps of the residence and move the deceased. His actions up until this point areconsistent with helping the deceased.

During the 911 call the accused was asking for an ambulance to come and informing the 911operator that the deceased was dying. The 911 operator then asked if violence was involved and asked the accused to stay on the line andspeak to police and at that point the accused hung up. The video evidence then shows the accused go down the front stairs of theresidence and move the deceased. He then hurriedly checked the deceased pockets and took what appeared to be a set of keys out of thedeceased’s pocket. Then, in a hurried manner, he runs down the stairs and across the street and into the deceased‘s white car.

He thendrives away a few moments later when a grey pickup pulls up in front of the residence. As stated above, flight from the scene, is moreconsistent with the actions of a person who has committed a culpable act and is evidence of identity in this case. [50] In the circumstances of this case the Crown witnesses, Darren and Savannah Bulldog also left the scene, but they gaveevidence explaining that they did so because they had outstanding warrants and did not want to be arrested by the police. Their testimonyin this regard gives their version of events further credence.

However, the evidence that Darren and Savannah Bulldog left the residenceis also probative that they may have been involved in the stabbing, but there is no other evidence showing their involvement in thestabbing. In light of the evidence, an inference can be drawn that Mr. Sutherland’s flight from the scene was because he had committedthe stabbing, and this is some evidence of the identity of the stabber. iii. Demeanour [51] The actions and speech of the accused as set out in the video and 911 call evidence, showed the accused was clearly in anextremely emotional and panicked state.

He hurriedly searched the deceased’s pockets and hurriedly ran off down the front stairs of theresidence. His demeanour portrayed someone who wanted to leave the scene quickly which can lead to the inference that he hadcommitted a culpable act. However, demeanour evidence must always be considered only after recognizing its inherent frailties. [52] In Simply Complex: Applying the law of Post Offence Conduct Evidence, 2016 63 C.L.Q. 276, David M. Paciocco defineddemeanour evidence as the observable physical appearance and presentation of a person, which is thought to reveal their attitude andemotional state.

David Paciocco went on to state that the only conduct that should be treated as demeanour are acts of the person that arerelevant because they betray the attitude or emotional state of the subject at the time of that conduct. Although the admissibility ofdemeanour evidence is fairly routine, Paciocco goes on to question the probative value of demeanour evidence and states that it can bespeculative, inaccurate and its use is fraught with danger and states the following: Even when such evidence is relevant, consideration must be given to whether it is probative enough to admit.

Indeed, there is authoritythat appears to suggest that mere relevance is not enough to support the proper admission of demeanour evidence. On this view,demeanour evidence can properly be received only where its probative value outweighs its potential prejudice. [53] Post-offence demeanour evidence is admissible where its probative value outweighs its prejudicial effect. Paciocco goes on tostate that post offence conduct evidence is often received in homicide cases where it shows that a suspected killer is excited.

In thisarticle, Paciocco states that the “circumstances surrounding the proffered evidence must be such as to make the evidence sufficientlyunambiguous and demonstrative of a relevant state of mind.” In addition, the invited inferences must be reasonable and clear. The articlealso considers the situation where the demeanour is remote from the event it is set to relate to, and this can clearly make the evidence lessprobative.

[54] In R v Trotta, 2004 CarswellOnt 4363, the Court of Appeal stated at para 41: Evidence of demeanour offered as evidence indicative of a state of mind must be received with caution: R. v. Levert (2001), (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.) at paras. 27-28.

The circumstances surrounding the proffered evidence must be such asto make that evidence sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier offact may too easily equate what is perceived to be an "unusual" reaction with a guilty mind. [55] Demeanour evidence was also discussed in White, where the court stated at paras 51-52, 76: ...Although the issue was not raised in the present appeal, there is a distinction to be made between removing post-offence conduct fromconsideration by the jury because it is not probative of a live issue and excluding it because its probative value is outweighed by itsprejudicial effect.

Some of the concerns about juries misusing evidence of post-offence conduct and "demeanour evidence" may be betteraddressed by the application of this discretion. As I explained above, these concerns, do not justify applying a different test of relevance to post-offence conduct or "demeanourevidence" than that applied to any other circumstantial evidence. The trial judge's discretion to exclude evidence that is more prejudicialthan probative recognizes that jurors will sometimes misuse relevant evidence.

However, since this discretion calls into question thejury's competence in performing its fact-finding function, the excessive prejudicial effect should be invoked explicitly. It should not bedisguised within a finding that the evidence is not probative at all. Where this discretion is not invoked, the jury should be trusted, oftenwith a warning, to weigh the relevant evidence. A problem with such evidence is that the inferential link between the witness's perception of the accused's behaviour and the accused'smental state can be tenuous (Trotta, at para. 40).

The witness's assessment depends on a subjective impression and

interpretation of theaccused's behaviour (Levert, at para. 27). Moreover, it appears to involve an element of mind reading (R. v. Anderson, 2009 ABCA 67, 3Alta. L.R. (5th) 29 (Alta. C.A.), at para. 51). Additionally, insofar as the witness is inferring the accused's state of mind from theaccused's outward appearance, there may be a legitimate concern that this is inadmissible lay opinion evidence.

This is to be contrastedwith evidence of objective conduct that allows the jury to draw its own inferences about the accused's state of mind. [56] The evidence of the accused’s demeanour is provided by video evidence and a recorded telephone conversation which showshis demeanour immediately after the stabbing in question. There is no issue about the remoteness of the event, it is video and audiorecorded immediately. In the 911 call the accused is asked if there was any violence and he states: “yes.

He’s just got, he just gotstabbed.” The accused then states: “he’s dying right now, yes he’s dying can you come please.” There is no doubt that the accused isspeaking in a loud, nervous, and excited voice. Such demeanour, along with the accused’s flight from the scene can be indicative ofhaving committed the stabbing or the accused could simply be in shock from seeing a person he knew bleeding and dying on the step.

Inaddition, he clearly stated to the 911 operator that there had been a stabbing from which it can be inferred that he was present when thestabbing took place, although he may have learned this in another manner. In my view, the probative value of this demeanour evidenceoutweighs its prejudicial effect and is clearly admissible. The demeanour evidence coupled with the accused’s flight from the scene isprobative with respect to the issue of identity and I take this evidence into account. c. Admissions by the Accused [57] Admissions by an accused can be extremely probative regarding identity.

In R v Oickle, 2000 SCC 38, the Supreme Courtdiscussed the dangers of an accused’s admissions and wrongful convictions. These comments were directed at the issue of voluntarinessand police tactics in questioning an accused. However, the admissions by the accused in this case were made to an undercover officerand were not the result of questioning. [58] A voir dire was held to determine the admissibility of statements made by the accused, to an undercover officer when he wasin police cells in Edmonton, approximately a week after the killing.

The undercover officer, (“officer 1325”), testified that he was placedinto a cell at the police station in Edmonton which was located directly across from the cell in which the accused was located. He furthertestified that he had no difficulty in hearing the accused. Officer 1325 also testified that the accused appeared very stressed and wasconstantly screaming and using the word “Fuck”. [59] Officer 1325 testified that the accused told him that he had been arrested for robbery and that homicide detectives fromCalgary were also investigating him.

Officer 1325 testified that the accused spoke to him regarding the robbery charges and then theaccused told him that it was “bullshit” that homicide detectives were speaking with him. Officer 1325 indicated that he responded to theaccused by saying that he hoped that it was clean and there weren’t any loose ends. The accused responded immediately by stating thatthere were lots of loose ends. [60] The accused also informed officer 1325 that the homicide detectives from Calgary had taken his shoes.

Officer 1325 testifiedthat the accused was upset about the police taking his shoes and officer 1325 indicated to the accused, at the time, that if they took hisshoes, they were looking for DNA. Officer 1325 then testified that the accused immediately stated that it happened at his house. Theaccused then stated that the detectives didn’t have “shit” because they didn’t even have the weapon. There was further conversation andthe accused again indicated that he was angry that homicide detectives were talking to him.

Officer 1325 indicated to the accused that hehoped he had been smart, and the accused responded by saying: “I stabbed him up on the back steps”. In cross-examination, defencecounsel attempted to put to officer 1325 that the accused’s comments about stabbing someone and that it occurred at his home were notrelated to this homicide investigation and that he was assuming that they were in regards to the homicide investigation.

However, officer1325 was certain that the comments made by the accused were in relation to the homicide investigation. [61] Officer 1325 gave further evidence that a telephone was given to the accused by jail staff and that the accused was speaking toa person he called “babe” and that he said to this individual over the phone that the body didn’t have any blood. Officer 1325 testifiedthat the accused also indicated that it was best to commit an offence in broad daylight because the police will only search a 12 blockradius for suspects.

Officer 1325 testified that when a female inmate was being removed from cells, the accused yelled “Savannah”towards this female inmate and wanted to know if the female was his friend Savannah.

[62] In my view, the accused’s statement to the undercover officer that there were loose ends, that what had happened, happened athis house, that they didn’t have “shit” because they don’t have the weapon and that he stabbed him up on the back steps are veryimportant statements. I accept the evidence of the undercover officer that the statements were made in regard to the homicideinvestigation. There is no evidence provided in this case that leads me to believe that it relates to something else.

In addition, I note thatthere is no evidence that the accused was involved or present at another stabbing other than the stabbing of the deceased, Mr. Kusch inthis case. [63] The accused’s statement to the undercover officer that there were loose ends, could suggest that he was culpable for hisactions involving the incident that the homicide detectives were investigating, but it arguably could also mean that there were loose endswith respect to some other person committing the offence.

In addition, his comment that it happened at his house is consistent with theevidence that the accused resided at the residence, in question, on at least a couple of occasions and that he stayed there the night beforethe stabbing occurred, but it does not on its own become an admission that he committed the offence.

However, when he states ithappened at his home and that he stabbed the person this adds to the probative value of the admission as we have heard no furtherevidence of the accused living at another location where a stabbing occurred. [64] The accused’s statement to the undercover officer that they didn’t have “shit” because they didn’t have the weapon is, in myview, much more probative with regards to the accused being the person responsible for the stabbing. His comment leads to an inferencethat he was aware that the police didn’t have a weapon, and he was aware of the weapon that had been used in the offence.

The evidenceis that the police did not have the weapon. This is not direct evidence that he was the stabber but provides further circumstantial evidencethat he was culpable. [65] The accused’s statement to the undercover officer that he stabbed the guy on the back steps is direct evidence that he was theone who stabbed the deceased in this case. His statement that he did so on the “back steps”, is incorrect as the evidence in this caseclearly sets out that the stabbing took place in bedroom 1 and there were no back steps to the residence, but steps on the front of theresidence.

The fact that the accused admitted to stabbing an individual is significant evidence of identity. He clearly made thatadmission. In light of the evidence, it would be speculative to infer that the accused was involved in the stabbing of another individualand that he would bring this up while discussing, with the undercover officer, that Calgary detectives were investigating the homicide inquestion.

Although the statement has some factual inconsistencies and may not, on its own, prove identity beyond a reasonable doubt inthis case, it is nonetheless extremely probative with respect to whether the accused stabbed the deceased in this case. [66] In this case, the Crown relies on the accused’s statement to the undercover officer, and on the evidence of Darren andSavannah Bulldog, which clearly leaves only the accused as the person who stabbed the deceased. The Crown also relies on the postoffence conduct regarding the demeanour of the accused and more importantly his leaving the scene of the crime.

When I consider all ofthe evidence including the accused’s admission, that he stabbed an individual, at his house I have no reasonable doubt that the onlyreasonable inference that can be drawn from the circumstantial evidence is that it was Mr. Sutherland who stabbed the deceased in thecircumstances of this case. I find that the Crown has proven the issue of identity beyond a reasonable doubt. 2. Whether the Crown Has Proven the Requisite Mens Rea for Murder [67] The next issue in this case is whether the Crown has proven the requisite intent for murder or whether the killing in this casewas a manslaughter. a.

Mens Rea for Murder [68] Both Crown and defence agree that s. 229(a)(ii) of the Criminal Code sets out the legal requirement for mens rea in thecircumstances of this case. Proof of a subjective intention to cause death satisfies the requirement for mens rea in a murder case, but s.229(a)(ii) requires a somewhat lesser standard in that the mens rea for murder can also be proven when an accused means to cause thevictim bodily harm and the accused subjectively knows this bodily harm is likely to cause the victim’s death and is reckless whetherdeath ensues or not.

There must be: 1) an intention to cause bodily harm; 2) subjective knowledge the bodily harm will probably be orlikely be fatal; and 3) recklessness as to whether the victim dies or lives: R v Moo, 2009 ONCA 645 at para 45. [69] In Moo, Justice Watt stated that the reckless component in the fault element of s. 229(a)(ii) does not exist in a vacuum butworks with the intentional infliction of significant bodily harm.

Justice Watt stated at para. 48: The requirement in s. 229(a)(ii) that the fatal assault be carried out in a reckless way, in other words by heedlessly proceeding with thedeadly assault well-knowing the obvious risks, adds nothing to the vital element of the intent to cause bodily harm that the killer knowsis likely to cause death and yet persists in the assault: Nygaard, at p. 1088. Anyone who causes bodily harm that she or he knows islikely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences that she or he knows are likelyto happen: R. v.

Cooper, (SCC), [1993] 1 S.C.R. 146 (S.C.C.), at pp. 154-155. In other words, such a person must,perforce, be reckless whether the victim lives or dies: Cooper, at p. 155. [70] In the recent case of R v Newborn, 2020 ABCA 120, leave to appeal to SCC refused [2020] SCCA No 282 (QL), the courtdiscussed the case of R v Cooper (SCC), [1993], 1 SCR 146. where the Supreme Court of Canada made it clear that “itis not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from thebodily harm that he is occasioning on the victim”.

The Newborn case also quoted R v Nygaard, (SCC), [1989] 2 SCR1074 which stated: The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it waslikely to result in the death of the victim. The aspect of recklessness is almost an afterthought. [71] The Newborn case also discussed the differing intentions needed to prove murder and manslaughter and stated at para 66:

Murder is classified as a specific intent offence. The intent cannot be inferred merely from the fact of the killing. The significance of thisclassification is that where a person is unable to form the specific intent required to commit the offence of murder, then the offence is notproven beyond a reasonable doubt and the accused is guilty of manslaughter. That is, manslaughter does not require murderous intent: R.v. Sarrazin, 2011 SCC 54 (S.C.C.) at para 18.

Manslaughter requires objective foresight of the risk of bodily harm which is neithertrivial nor transitory; foreseeability of the risk of death is not required: R. v. Creighton, (SCC), [1993] 3 S.C.R. 3, 83C.C.C. (3d) 346 (S.C.C.); R. v. DeSousa, (SCC), [1992] 2 S.C.R. 944, 9 O.R. (3d) 544 (S.C.C.). [72] The Crown must prove that the accused subjectively intended to cause bodily harm and that he subjectively knew that bodilyharm was likely to be fatal at the time of the stabbing. It is not sufficient that the accused knew that death could have resulted from thestabbing.

The accused must have turned his mind to the result of the stabbing that it would probably be fatal. In R v Creighton, (SCC), 1993 CarswellOnt 115 (SCC), Justice McLachlin discussed subjective and objective mens rea and stated at para 44: By way of background, it may be useful to restate what I understand the jurisprudence to date to have established regarding crimes ofnegligence and the objective test. The mens rea of a criminal offence may be either subjective or objective, subject to the principle offundamental justice that the moral fault of the offence must be proportionate to its gravity and penalty.

Subjective mens rea requires thatthe accused have intended the consequences of his or her acts, or that knowing of the probable consequences of those acts, the accusedhas proceeded recklessly in the face of the risk. The requisite intent or knowledge may be inferred directly from what the accused said orsays about his or her mental state, or indirectly from the act and its circumstances. Even in the latter case, however, it is concerned with"what was actually going on in the mind of this particular accused at the time in question": L'Heureux-Dubé J. in R. v.

Martineau, supra,at p. 655, quoting Stuart, Canadian Criminal Law: A Treatise, 2d ed. (Toronto: Carswell, 1987), at p. 121 [emphasis added] b. Evidence of Injuries and Cause of Death [73] The Crown relied on the testimony of Dr. Akmak Coetzee-Kahn, the Autopsy Report, marked as Exhibit 6 in theseproceedings, and photos of the injuries to the deceased, found in Exhibit 12, to provide evidence of the seriousness of the injuries and toprove that the accused had the requisite intent for murder. [74] The Autopsy Report states that the cause of death of the deceased was multiple stab wounds.

The autopsy report further statesthat there were a total of five stab wounds. The first stab wound was on the right side of the neck and penetrated the rightsternocleidomastoid muscle severing the anterior aspect of the jugular vein and the carotid artery. The wound subsequently injured thepharynx severing the posterior and superior aspect of the right horn of the thyroid cartilage. The stab wound also injured a major branchof the left external carotid artery. The wound path was right to left, front to back and upwards, and had the depth of approximately 11 cmand the edges of the wound measured 3 cm in width.

The Autopsy Report further stated that there was a large amount of blood found inthe trachea and main bronchi. [75] According to the Autopsy Report, the second stab wound penetrated the right shoulder and the wound track was right to left,front to back and in a slightly downward direction. The wound penetrated the subcutaneous fat severing the right axillary vein andpassed through the first intercostal space and entered the chest cavity and then penetrated the upper lobe of the right lung.Approximately 100 millilitres of blood was found in the chest cavity.

The depth of the wound was approximately 11 cm while the edgesof the wound measured 2 centimetres. [76] The Autopsy Report next stated that the third stab wound penetrated the right anterior chest wall and entered the right chestcavity perforating the dome-shaped muscle between the chest and the abdomen. This wound ended up penetrating and injuring the liverand 100 millilitres of blood was found in the abdomen. The wound track was from left to right, front to back and slightly downward.

Thedepth of the wound was approximately 11 cm and the edges of the wound measured approximately 2.3 cm. [77] The fourth wound, according to the Autopsy Report, was found on the posterior and lateral aspect of the right upper arm andthis wound penetrated the subcutaneous adipose or soft tissue only. The depth of the wound was only 1.5 cm and the edges of the woundmeasured only .9 cm.

According to the Autopsy Report the stabbing that resulted in the fourth wound also may have resulted in 2 morewounds to the deceased’s right armpit although one of these armpit wounds was described as being superficial. [78] Other superficial blunt force injuries were located on the upper body but Dr. Coetzee-Kahn, in his testimony stated that hecould not determine if they were the result of an assault, or the result of resuscitation attempts by nurses and firefighters. Dr.

Coetzee-Kahn further testified that the staining on the clothing found at the scene showed a significant amount of blood and that the loss of bloodwould result in a loss of oxygenated blood to the brain which would result in the deceased feeling faint and having difficulty breathing.Dr. Coetzee-Kahn also indicated that the autopsy revealed that there was blood in the throat and airways of the deceased which wouldalso make it difficult for the deceased to breath. Dr.

Coetzee-Kahn described the blood loss as “significant blood loss” and he had nodifficulty in finding that the deceased died because of multiple stab wounds which resulted in him not getting oxygen to his brain. Dr.Coetzee-Kahn testified that there were three major wounds to the deceased and that the constellation of these wounds would have beencatastrophic and would have led to the deceased’s death within minutes. [79] Dr.

Coetzee-Kahn also testified regarding the toxicology report which was found in exhibit 6 which indicated that thedeceased had fentanyl, cocaine and methamphetamine in his body at the time of death. During cross-examination Dr. Coetzee-Kahnindicated that the amount of fentanyl found in the deceased’s body at the time of death was a fairly high amount, but he indicated thatusers can develop a tolerance such that they could move around and the fentanyl may not cause death.

With respect to themethamphetamine the resuscitation attempts may have shown a larger amount of this drug in the system than what was actually there,but he agreed with defence counsel that methamphetamine would increase the blood rate. Defence counsel also questioned Dr. Coetzee-Kahn regarding the cocaine found in the deceased’s body and the amounts of metabolized cocaine, Benzoylecgonine, and indicated thatthese showed the recreational use of cocaine. The doctor agreed with defence counsel that the cocaine would have a stimulant effect. [80] Dr.

Coetzee-Kahn testified that death would not be immediate from the injuries but that after a few minutes there would be

irreversible damage. In cross-examination Dr. Coetzee-Kahn agreed with defence counsel that he could not identify the order that thewounds were inflicted. The doctor also agreed with defence counsel that he would not be able to tell the body position of the deceasedwhen he was stabbed or whether he was standing or sitting or whether he was facing towards or away from the person who stabbed him.He further agreed with defence counsel that he could not provide a simulation of how the wounds occurred.

He further testified that hewould not be able to determine the amount of force that was used in wounds one, two and three as the wounds went through soft tissue.The doctor further agreed with defence counsel that there was no indication as to whether the stab wounds had been inflicted by way of atwisting motion. The doctor also testified that the different wounds could have been caused by different instruments and he could notexclude multiple weapons or that there had been more than one perpetrator. [81] In redirect Dr.

Coetzee-Kahn testified that that the length of the weapon was at least 11 cm long, but could have been longerdepending on how deeply the weapon was thrust into the person. [82] The Crown points to the evidence of the injuries or wounds and Dr. Coetzee-Kahn’s evidence that the combination orconstellation of these wounds would have been catastrophic and would have led to the deceased’s death within minutes.

The Crownargues that this court should infer that a sane and sober person intends the natural consequences of his acts and that generally people areable to foresee the consequences of their actions. (See: R v Seymour (SCC), [1996], 2 SCR 252) This is a well-knownproposition of ordinary good sense. However, this is an inference that may be drawn, but not one that must be drawn. As stated in R vGiannotti, (ON CA), [1956] OR. 349 (ONCA): “If on all the facts of the case it is not the correct inference, then itshould not be drawn.” (See: R v Beyo, (ON CA), 2000 CarswellOnt 838, at para 37).

Certainly, this is strong evidenceof proof that the accused intended to cause bodily harm to the deceased that was likely to result in death. However, there is otherevidence or a lack of evidence that must also be considered in determining if the Crown has proven the requisite intention for murderbeyond a reasonable doubt. c. Post-Offence Conduct and Intention [83] Post offence conduct is also often considered in determining the state of mind, fault element or intention of an individual whocommits murder, but its use requires a careful approach.

Where an accused has committed a homicide, their actions after the killing maynot be relevant to whether they are guilty of murder or manslaughter. This is especially so with respect to post-offence conduct where anaccused flees the scene of the crime or is acting in a panicked and emotional state. In Calnen, Justice Martin stated at para 119: Contrary to certain suggestions made in the courts below, there is no legal impediment to using after-the-fact conduct evidence indetermining the accused's intent.

The jurisprudence of this Court is clear: after-the-fact conduct evidence may be relevant to the issue ofintent and may be used to distinguish between different levels of culpability (see White (1998), at para. 32; White (2011), at para. 42;Rodgerson, at para. 20). Specifically, this Court has said that "[w]hether or not a given instance of post-offence conduct has probativevalue with respect to the accused's level of culpability depends entirely on the specific nature of the conduct, its relationship to the recordas a whole, and the issues raised at trial": White (2011), at para. 42.

There is therefore "no per se rule declaring post-offence conductirrelevant to the perpetrator's state of mind": R. v. Jackson, 2016 ONCA 736, 33 C.R. (7th) 130 (Ont. C.A.), at para. 20, per Doherty J.A.As there are also no automatic labels which make certain kinds of after-the-fact conduct always or never relevant to a particular issue,"we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jurymay properly make of it": see R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143 (Ont.

C.A.), at para. 55. [84] In R v Campbell, 2018 ONCA 837, the court discussed post offence conduct with respect to the issue of whether the Crownhad proven the requisite intent for murder and stated at para 12: Evidence that a person did not render aid to someone, who they had shot, is more consistent with intending (or being reckless regarding)the death of the person than not. Consequently, this post-offence conduct was a relevant consideration on the issue of the mental elementfor murder.

The issue that the jury had to decide respecting the appellant's state of mind was whether the appellant meant to kill thedeceased, or meant to cause the deceased bodily harm that the appellant knew was likely to kill the deceased and was reckless whetherthe deceased died or not.

In our view, whether the appellant took steps to prevent the deceased from dying is a relevant consideration inthat analysis. [85] Evidence of the accused fleeing from the residence by running away and stealing the deceased’s car, although highlyprobative of the identity of the stabber is not probative of whether the accused had the intent for murder: White, at para 66. However, hisactions in calling 911 are relevant to his knowledge that the injuries were likely to cause death at the time they were inflicted andwhether he intended to cause death. i.

Calling 911 [86] The CCTV video evidence clearly shows the deceased standing in the front door of the residence and then turning around andgoing back inside. A short time later the deceased walked out of the front door of the residence, holding a towel or piece of clothing tohis neck and walking down a few steps. The accused can be seen motioning towards the deceased to come inside. The accused is notinterfering with the deceased in any way and the deceased is moving about on his own.

Then the deceased collapses on the front steps.The accused then becomes much more panicked and goes out the front door of the residence and calls the 911 operator. [87] There is no doubt that the accused called 911 on his cell phone after the deceased collapsed on the front steps of the residenceas shown in the CCTV video. In the call the accused stated: “Ambulance. Right now, quick, he’s dying.” When asked by the 911operator if there was any violence, the accused stated: “Yes. He just got – he’s got stabbed.” The accused then stated: “Yes.

He’s dying.Can you come please.” The operator told the accused: “Stay on the line for police,” and the accused then hung up or no longerresponded. [88] Clearly at the time that the accused makes the 911 call, he is wanting to get help for the deceased so that he will not die. Atthat point the accused does not want the deceased to die. When making the call the accused was aware that death was likely from theinjuries the deceased had sustained. However, it is the accused’s intention at the time of the stabbing that is relevant. Did he intend to

stab the deceased and did he have the subjective knowledge, at the time of the stabbing, that the deceased was likely to die from the injuries? It certainly could be the case that the accused was remorseful after the fact, once he realized what he had done in stabbing the deceased and that at the time of the stabbing he had the requisite subjective knowledge and intent for second degree murder. However, another inference can be drawn that the accused, at the time of the stabbing, did not turn his mind towards the result of the stabbing and did not have knowledge that his actions would likely cause death.

The deceased was clearly able to walk around on his own after the stabbing and the accused did not seem panicked until the deceased collapsed on the steps. This inference is more likely where there is no evidence for motive and no evidence of what actually occurred during the stabbing, leading up to the stabbing, or anything else that occurred in bedroom 1 when the accused and deceased were alone. As a result, this is some evidence that may raise a doubt with respect to the accused’s intent. d. Lack of Evidence Regarding the Stabbing [ 89 ] There are no eyewitnesses to the stabbing.

Neither Darren nor Savannah Bulldog were in bedroom 1 when the stabbing took place. The evidence of Darren Bulldog was that he was in bedroom 1 with the deceased and the accused and there was no indication of any animosity between the accused and the deceased. Darren Bulldog testified that he left bedroom 1 and proceeded to bedroom 3. He further testified that he could hear talking that was kind of yelling, but not arguing, coming from bedroom 1 where the deceased and the accused were located.

He testified that he went out into the hallway and saw the deceased and accused were outside of bedroom 1 and the deceased was holding something to his neck. Darren Bulldog gave no further information as to what was occurring in bedroom 1 at the time of the stabbing. [ 90 ] Savannah Bulldog was in the kitchen at the time of the stabbing and she testified that just before the deceased and the accused came out of bedroom 1, she heard a little bit of arguing and could not remember the words, but she recalled she heard a little bit of the scuffle and then a yell.

She then testified that the accused and the deceased came out of bedroom 1, with the deceased holding a shirt to his bloody neck and the accused came out of the bedroom with his hands on his head and a look on his face like “what have I done”. [ 91 ] This is the extent of the evidence provided at trial with respect to what happened during the stabbing in bedroom 1. There is absolutely no evidence with respect to why the stabbing occurred, and according to the evidence of Dr.

Coetzee-Kahn, no indication of the order in which the stab wounds were inflicted, how the parties were positioned in relation to each other, when the stabbing occurred or the amount of force used in the stabbing. There is simply no evidence of how the stabbing occurred and Dr. Coetzee-Kahn testified that he could not provide a simulation of how the wounds were inflicted. In addition, the object used to stab the deceased was never recovered and it could not be determined if there was more than one object.

As I stated earlier, there was no evidence of motive in this case, no eyewitness to what exactly occurred or an explanation as to what led to the stabbing. [ 92 ] In R v Taniskishayinew , 2017 BCSC 1944 , the victim was found stabbed on the street and discovered by a tenant of a housing complex. There were no witnesses to the stabbing. The police secured security camera footage which showed the victim with the accused coming and going from the accused’s residence. This camera footage showed the accused and victim leave her home and then her returning alone 3 to 5 minutes before the body was discovered.

Other security camera footage showed the victim and the accused walking down the street and then walking out of view. After being out of camera view for approximately one minute the accused was seen walking back to her building alone. The victim was then found stabbed in the area that was out of view from the camera footage. A knife was found in a garbage bin a short distance away from the murder scene and that knife was similar to other knives found in the accused’s residence and the victim’s blood was found on the knife.

The accused’s shoes were also found to have the victim’s blood on them. [ 93 ] In Taniskishayinew , the trial judge found that identity had been proven beyond a reasonable doubt and then discussed whether the requisite intent for murder had been proven beyond a reasonable doubt. In Taniskishayinew , the knife was a butcher knife and there was some evidence of the accused having consumed alcohol. The medical evidence indicated that the stabbing severed a rib and perforated the aorta causing massive internal bleeding.

In that case there was no evidence of the accused calling 911 or attempting to get the victim assistance. The court made comments about the lack of evidence of the actual stabbing and stated at paras 61 – 62: Fifth, the Crown argues that the accused knew that where she stabbed the victim was in an area of the body that contains vital organs. Again, this is speculative. The accused might not have been planning the stabbing or planning where to stab. It is possible the victim made a sudden lunge at her outside of camera range so that she used the knife to wave at him in the hope of causing him to back off.

If she did plan to cut the victim, the accused might not have been very well educated and might have thought she was just going to cut him to teach him a lesson. She may have been surprised at how far the knife ended up going into his body and how much damage it caused. The accused's level of understanding regarding the risk of death arising from using such a knife to cut someone is not something that can be assumed. There is no evidence about her education or experiences. In my view the Crown has gone too far in the inferences it seeks to draw from limited evidence.

As the defence ably pointed out in submissions, one cannot infer natural consequences from the accused's actions if we do not know what those actions were. We do not know what happened in the altercation between the accused and the victim. [ 94 ] The court in Taniskishayinew , went on to state at para. 65: The Crown submits that there is no air of reality to a defence of self defence or provocation because we do not have any eye witness account of the actual altercation that resulted in the stabbing.

This is a fair point, but the same flaw can be said of the prosecution's theory of intent: we simply do not know what happened in the heat of the moment. [ 95 ] In the present case, there are more then one stab wound, which can be an indication that the person inflicting the wound wanted to seriously injure the other person so that death would likely ensue. However, more then one stab wound can be indicative of a struggle, especially where the victim is not incapacitated and continued to walk around after the altercation.

Stabbing a person, a number of times who is lying on the ground and is not mobile is much more indicative of knowing that death would ensue than when a person remains standing and is mobile. As discussed earlier once the deceased collapsed on the steps the accused became panicked and made comments which indicated that he knew the deceased was dying. However, before that when the deceased had clearly been stabbed, but

was moving about on his own, the brief video of the accused at the front door of the residence showed the accused motioning to the deceased to come back into the residence. It can certainly be inferred that when the deceased was moving about on his own the accused did not have a belief that death was likely. [ 96 ] It would seem unlikely that a person would allow their victim to walk around and leave the residence if their intention was to kill or cause such an injury that death was likely. As I discussed earlier, phoning 911 for an ambulance is also i

[…]