R v Favel, 2022 ABKB 727

Court of King’s Bench of Alberta Citation: R v Favel, 2022 ABKB 727 Date: 20221031 Docket: 200695567Q2 Registry: Wetaskiwin Between: His Majesty the King Crown - and - Levi William Favel Riley Keith Maygard-Olynyk Brittany Lynne Lucy Omeasoo Accused _______________________________________________________ Reasons for Decision on Directed Verdict Applications of the Honourable Justice W.N. Renke _______________________________________________________ [ 1 ] Ms. Omeasoo, Mr. Favel, and Mr.

Maygard-Olynyk are each charged with first degree murder in connection with the death of Joseph Desjarlais and arson with disregard for human life in connection with a fire that occurred at Manny’s Motel in Wetaskiwin. [ 2 ] Each has applied for directed verdicts respecting one or both of their charges. I will address • the test for a directed verdict

• the approach to the test given co-accuseds • my decisions respecting the directed verdict applications concerning the arson charges • aspects of secondary liability for first degree murder • my decisions respecting the directed verdict applications concerning the first degree murder charges. [ 3 ] Transcript references follow the format used in the voluntariness voir dire decisions. Table of Contents I. Test 3 II. Approach . 4 III. Arson . 4 A. Ms. Omeasoo . 5 B. Mr. Favel 5 C. Mr. Maygard-Olynyk . 5 1. “We Gathered Up” . 6 2. Nate Osha . 6 IV. Parties to First Degree Murder 7 A. Statutory Provisions . 7 B.

Secondary Liability . 8 1. Aiding . 8 2. Abetting . 8 3. No Requirement for Identification of Principal Offender 9 C. Secondary Liability for First Degree Murder 9 1. Steps for Determining Responsibility for First Degree Murder 9 2. Unlawful Confinement 9 3. Guilty of Murder 10 4. Substantial Cause . 11 V. Parties to First Degree Murder - Assessment 11 A. Concessions and Common Findings . 11 1. Concessions . 11 2. Common Findings . 11 3. The Pritchard Issue . 12 B. Ms. Omeasoo . 13 1. Facts . 13 2. Knowledge . 14 C. Mr. Maygard-Olynyk . 15 1. Facts . 15 2. Knowledge . 18 D. Mr. Favel 19 1. Facts . 19

2. Mr. Favel’s Participation. 22 3. Knowledge. 22 E. Sufficient Causal Contribution?. 23 F. Conclusion. 25 I. Test [4] The test for a directed verdict was not in dispute. The most recent exposition of the test is provided by Justice Martin in R vKirkpatrick, 2022 SCC 33 at para 16: [16] In determining whether to grant a no-evidence motion, the trial judge must ask “whether or not there is any evidence upon which areasonable jury properly instructed could return a verdict of guilty” (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21, quotingUnited States of America v.

Shephard, (SCC), [1977] 2 S.C.R. 1067, at p. 1080; see also R. v. Monteleone, (SCC), [1987] 2 S.C.R. 154, at pp. 160-61). The Crown must adduce some evidence of culpability for every essential definitionalelement of the crime (R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, at paras. 2-3). If there is any such admissibleevidence, a directed verdict is not available (Monteleone, at pp. 160-61; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48).

Justice Martin cited cases referred to by counsel in argument, including Charemski, Arcuri, and Shepard. [5] The test is not whether the Crown simply has some evidence that supports the Crown’s theory of the case. Rather, as JusticeMcLachlin emphasized in Charemksi at para 20, the test is “whether the evidence is capable of supporting a verdict of guilt beyond areasonable doubt.

If it is not, the judge must direct an acquittal, since it would be impossible for a reasonable jury to convict legally onthe evidence” (emphasis added, see also para 35). [6] In Arcuri, Chief Justice McLachlin confirmed that: the test is the same whether the evidence is direct or circumstantial (para 22)the test is the same whether or not the Crown’s case contains exculpatory evidence (para 29 - “Thus, where the Crown hasadduced direct evidence on all the elements of the offence, the preliminary inquiry judge must commit the accused to trial even ifthe defence proffers exculpatory evidence:” R v Sazant, 2004 SCC 77 at para 16)the trier of fact determines whether and how far the evidence is to be believed but the judge as trier of law does not assesscredibility (paras 22, 23, 30 (Sazant at para 18))to the extent that the Crown relies on circumstantial evidence to prove an element of an offence, the judge must engage in a limitedweighing of the evidence.

The judge must determine whether the evidence is reasonably capable of supporting the inferencesurged by the Crown (at para 23). Further, that limited weighing must be of the “whole of the evidence (i.e. including any defenceevidence)” (para 29). In Sazant, Chief Justice McLachlin confirmed at para 18 that if “more than one inference can be drawn from the evidence, only theinferences that favour the Crown are to be considered.” [7] If a directed verdict application is denied, that does not mean that the trial judge has determined that the accused is likely tobe found guilty, should be found guilty, or is guilty.

If a directed verdict application is denied, the Crown must still go on to prove theguilt of the accused beyond a reasonable doubt. II. Approach [8] Each directed verdict application must be approached separately. [9] For the most part, the directed verdict applications concern the statements of each accused, statements that I have found to beadmissible. [10] However, each statement is evidence against and for only the person who made the statement, not any of the other co- accuseds: McWilliams’ Criminal Evidence, 5th ed, by the Honourable S. Casey Hill, David M. Tanovich, Louis P.

Strezos (ThomsonReuters, 2022), § 7:120; R v Perciballi, , 154 CCC (3d) 481 (ON CA), Charron JA, as she then was, at paras 76-78,affd 2002 SCC 51; R v Rojas, 2008 SCC 56, Charron J at para 25. [11] To the extent that it is relevant, evidence that was part of the Crown’s case tendered independently of the statement voir direscould be relevant to each co-accused’s directed verdict application. III. Arson [12] I’ll begin with the directed verdict applications respecting the arson charge. [13]

Section 433(

a) of the Criminal Code provides as follows:

433 Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence and liable to imprisonment for life where (

a) the person knows that or is reckless with respect to whether the property is inhabited or occupied …. [ 14 ] To convict an accused of this offence, the Crown must establish beyond a reasonable doubt, that: the accused actually committed the offence or was a party to the offence the offence occurred at the time and place set out in the Indictment the accused caused damage to the property by (in this case) fire the accused intentionally or recklessly caused the damage by fire the accused knew or was reckless with respect to whether the property was inhabited or occupied. [ 15 ] In this case, damage was caused to Manny’s by fire, a reasonable inference was that the fire was set intentionally, and a reasonable inference was that whoever set the fire knew that the property was inhabited or occupied.

No one suggested otherwise. The question was whether any of the accuseds either set the fire or was a party to the setting of the fire. [ 16 ] I’ll address in turn the applications of Ms. Omeasoo, Mr. Favel, and Mr. Maygard-Olynyk. A. Ms. Omeasoo [ 17 ] The Crown confirmed that it would not be proceeding with the arson charge against Ms. Omeasoo. That dispenses with the need to adjudicate her application respecting this charge. [ 18 ] I add only that the Crown’s decision was correct. The Crown’s case disclosed no evidence supporting a finding that Ms. Omeasoo committed the offence of arson.

Had the Crown not made its concession I would have directed a verdict for the acquittal of Ms. Omeasoo for this charge. B. Mr. Favel [ 19 ] Mr. Favel conceded that there was evidence supporting the determination that he was one of the persons who started the fire in Manny’s. Mr. Favel did not pursue a directed verdict application respecting this charge. [ 20 ] I add only that Mr. Favel’s decision was correct. There was evidence in his March 14 afternoon interview that he was one of the persons who started the fire in Manny’s (t11.172-186, 381-382, 383-405, 467-510, 737, 744).

There was additional evidence in the statements to the undercover officer (March 15, 2020, 17:22-18:02 (the Second Undercover Recording), 3.54, 4.68-69; March 15, 2020, 18:21-19:05 (the Third Undercover Recording), 8.176-177). Had Mr. Favel not conceded this issue, I would have denied the directed verdict application respecting this charge. C. Mr. Maygard-Olynyk [ 21 ] I observe that in his statements Mr. Maygard-Olynyk consistently denied setting any fire (t1.2587-2598, 2617-2627; t3.823- 833, t3.860-870). [ 22 ] However, the Crown relied on two evidential elements to support the conclusion that Mr.

Maygard-Olynyk was a party to the arson, by way of aiding (more on what constitutes “aiding” below) or by helping to set the fire. 1. “We Gathered Up” [ 23 ] Mr. Maygard-Olynyk said to Sgt. Kuca that the girl with the black hair suggested to burn the place down and said we gotta grab … cooking oil, Axe … so yeah … we gathered up like … Axe cologne ... all the cooking oil and shit and just put them like in a kind of spot right beside Joe (t1.2421-2429). [ 24 ] I am aware of the frailties of this evidence. It is possible that Mr.

Maygard-Olynyk misspoke in his use of the phrase “we gathered up.” It’s not exactly clear who “we” would have been at this point. And further, it’s not clear whether the use of the term “we” included actions by Mr. Maygard-Olynyk personally. I legitimate use of the term “we” when describing group activities does not mean that every single member of the group did the activity described. [ 25 ] Mr. Maygard-Olynyk’s words may have more than one

interpretation. However, in a directed verdict application, so long as the Crown can show that a reasonably available

interpretation of the conversation supports Mr. Maygard-Olynyk’s responsibility as a party to the arson offence, only that

interpretation should be considered. [ 26 ] At the end of the trial, the meaning of Mr. Maygard-Olynyk’s words will be decided by the trier of fact not the trier of law: see R v Hermkens , 2021 ABQB 1014 at para 46 . 2. Nate Osha [ 27 ] Further, Nate Osha testified for the Crown. He said that he saw Mr. Maygard-Olynyk after the fire at Manny’s. He had a discussion with Mr. Maygard-Olynyk about the fire. He said that Mr. Maygard-Olynyk said that “he did something bad with Levi and helped set the fire.” Mr. Osha later said that Mr. Maygard-Olynyk said that “he helped start it” (meaning the fire). If Mr.

Osha accurately reported Mr. Maygard-Olynyk’s words, Mr. Maygard-Olynyk admitted participation in the arson offence. That is, if Mr. Osha

were believed, this would be evidence that could establish beyond a reasonable doubt that Mr. Maygard-Olynyk participated in the arson offence. [ 28 ] I am aware of the frailties of this evidence as well. [ 29 ] Mr. Osha was cross-examined by Mr. Lazin. Mr. Osha agreed that he could not recall the specific words used by Mr. Maygard-Olynyk, he could not recall when specifically, they’d had their conversation, he could not recall the specifics of their discussions, he was using crystal meth and heroin at the material times, and he could not say whether on any given day in January 2020 whether he was high or not.

While I do not view Mr. Osha to have recanted his report of Mr. Maygard-Olynyk’s words, he did expressly confirm the unreliability of both his memory and account of what Mr. Maygard-Olynyk may have said to him. [ 30 ] It is clear that it would be dangerous to convict Mr. Maygard-Olynyk on Mr. Osha’s testimony alone, absent corroboration. No corroboration was pointed to in this case. Nonetheless, whether a such a witness is to be believed, even absent corroboration, is a determination for the trier of fact: R v Lawrence , 2020 ABCA 268 at para 30 .

The authorities are emphatic that in the directed verdict application, the judge is not to assess credibility. For me to decide at this point that Mr. Osha’s testimony should be rejected would fall outside the proper scope of a directed verdict assessment. [ 31 ] I therefore deny Mr. Maygard-Olynyk’s directed verdict application respecting the arson offence. IV. Parties to First Degree Murder [ 32 ] The statements of each of the accuseds are similar in that each refers to Mr. Desjarlais being choked, and each contains admissions that the accused was present when Mr.

Desjarlais was choked and participated in binding Mr. Desjarlais’ feet while he was being choked. None of the accuseds admits to having choked Mr. Desjarlais and the statements differ in their descriptions of who choked Mr. Desjarlais and in the nature of the participation of each while Mr. Desjarlais was choked. [ 33 ] The Crown’s theory is that each is responsible for the killing of Mr. Desjarlais as a party to the murder. Each is responsible for first degree murder by causing Mr. Desjarlais’ death through the unlawful confinement of Mr. Desjarlais.

I’ll review the governing statutory provisions, secondary liability generally, and aspects of secondary liability for first degree murder. A. Statutory Provisions [ 34 ] Under s. 229 of the Criminal Code , 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 …. [ 35 ]

Section 231 provides that:

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

(2) Murder is first degree murder when it is planned and deliberate ….

(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) …. [ 36 ]

Section 279 provides as follows: 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. [ 37 ] Under s. 21(1), 21(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. B. Secondary Liability

1. Aiding [38] Setting aside omissions, “aiding” requires proof that the person did “anything” that aided another to commit an offence. Theperson must have provided assistance or help “for the purpose of aiding” the other person to commit the offence: R v Briscoe, 2010 SCC13, Charron J at para 14; R v Vu, 2012 SCC 40, Moldaver J at para 58. [39] The mens rea of aiding has two elements, intent and knowledge.

The Crown must prove that the accused intended to assist theprincipal offender in the commission of the offence: Briscoe at para 16. [40] While a party’s knowledge of the principal offender’s intention to kill must be established, an aider or abettor need not sharethat intention: Briscoe at para 18.

If aiding concerns murder, there is no requirement that a party have “desired” that the victim woulddie: R v Hibbert, (SCC), [1995] 2 SCR 973, Lamer CJC at para 37. [41] The accused must know that the principal offender intended to commit the crime, “although he or she need not know preciselyhow it will be committed:” Vu at para 58; Briscoe at paras 16, 18; R v Roach, , 192 CCC (3d) 557 (ON CA), BorinsJA at para 34, 44. In Briscoe at para 17, Justice Charron stated that: Doherty J.A. in R. v.

Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, provides the following useful explanation of the knowledgerequirement which is entirely apposite to this case (at paras. 88-89): … a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required formurder under s. 229(a): R. v. Kirkness (1990), (SCC), 60 C.C.C. (3d) 97 (S.C.C.) at 127. 2.

Abetting [42] “Abetting” requires proof of active encouragement of another person to commit an offence, and includes encouraging,instigating, promoting, or procuring the crime to be committed: R v Greyeyes, , [1997] 2 SCR 825, Cory J at para26 ; Briscoe at para 14. In the words of Justice Moldaver in R v Cowan, 2021 SCC 45 at para 32, “[t]he actus reus of abetting isdoing something or omitting to do something that encourages the principal to commit the offence.” [43] The mens rea of abetting is similar to the mens rea for aiding.

The mens rea for abetting requires proof that the accusedoffered the encouragement with the intention of encouraging the principal offender to commit the offence and that the accused knew thatthe principal offender intended to commit the offence: Cowan at para 32; R v Almarales, 2008 ONCA 692, Watt JA at para 67; R vCurran, 1977 ALTASCAD 284, 38 CCC (2d) 151 (SC AD) at para 23 , leave to appeal to SCC refd (1978), 38 CCC (2d) 151n. 3.

No Requirement for Identification of Principal Offender [44] Under s. 23.1 of the Criminal Code, 23.1 For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accusedaids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence. [45] Hence, secondary liability does not require that the principal offender have been identified, tried for the offence, or convictedof the offence.

In Cowan, Justice Moldaver wrote at para 31 that: [31] Where, as here, an accused is being tried alone and there is evidence that more than one person participated in the commission ofthe offence, the Crown is not required to prove the identity of the other participant(

s) or the precise part played by each in order to provean accused’s guilt as a party .... See also para 33 (“the Crown is not required to prove the identity of ‘the principal’ or their specific role in the commission of the offencefor party liability to attach”) and para 44. [46] The conflict between the statements on the issue of who choked Mr. Desjarlais was not an issue in the directed verdictapplications. C. Secondary Liability for First Degree Murder 1.

Steps for Determining Responsibility for First Degree Murder [47] In R v Harbottle, (SCC), [1993] 3 SCR 306 at 325, Justice Cory set out steps for determining whether anaccused is guilty of first degree murder under (now) s. 231(5): (1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime; (2) the accused was guilty of the murder of the victim; (3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim; (4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of thevictim; and (5) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing theoffence of domination as part of the same series of events.

I offer some observations concerning some of these steps: 2. Unlawful Confinement [48] Respecting step (1), in this case, the relevant crime of domination is unlawful (or “forcible” confinement). The gravamen ofthe offence of unlawful confinement is as follows: the accused physically restrained the complainant against his or her willthe restraint was without lawful authoritythe accused intended to restrain the complainant physically against his or her will. [49] In R v Pritchard, 2008 SCC 59, Justice Binnie wrote at para 24 that “[t]he authorities establish that if for any significantperiod of time Mrs.

Skolos was coercively restrained or directed contrary to her wishes, so that she could not move about according toher own inclination and desire, there was unlawful confinement within s. 279(2) ….” [50] In R v Parris, 2013 ONCA 515, Watt JA wrote at para 46 that: [46] .... Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which thatperson submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, (SCC), [1990] 2 S.C.R. 711, at p. 723.

The authorities establish that if for any significant period of time, the victim wascoercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her owninclination and desire, the victim has been unlawfully confined: R. v. Pritchard ... at para. 24. [51] And in R v Sundman, 2022 SCC 31, Jamal J wrote as follows at para 21: [21] To establish unlawful or forcible confinement under s. 279(2) of the Criminal Code, the Crown must prove that (1) the accusedconfined another person; and (2) the confinement was unlawful (R. v.

Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 64). At itscore, unlawful confinement involves a deprivation of a person’s liberty (R. v. Bottineau, [2006] O.J. No. 1864 (QL), 2006 CarswellOnt8510 (WL) (S.C.J.), at para. 117, per Watt J. (as he then was), aff’d 2011 ONCA 194, 269 C.C.C. (3d) 227). Unlawful confinementoccurs if, for any significant time period, a person is coercively restrained or directed contrary to their wishes, so that they cannot moveabout according to their own inclination and desire (R. v. Luxton, (SCC), [1990] 2 S.C.R. 711, at p. 723; R. v.

Pritchard... at para. 24; Magoon, at para. 64). The person need not be restricted to a particular place or physically restrained (Magoon, at para. 64;R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at pp. 473 and 475, per Cory J.A. (as he then was); R. v. Lemaigre (1987), (SK CA), 56 Sask. R. 300 (C.A.), at para. 3; M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (5thed. 2015), at p. 1037). The restraint can be through violence, fear, intimidation or psychological or other means (Magoon, at para. 64).The purpose of the confinement is not relevant (Pritchard, at para. 31; R. v.

Kimberley (2001), (ON CA), 56 O.R.(3d) 18 (C.A.), at para. 107; R. v. Johnstone, 2014 ONCA 504, 313 C.C.C. (3d) 34, at para. 45; R. v. Parris ... at para. 47). 3. Guilty of Murder [52] Respecting step (2), for the purposes of the directed verdict application, the criminal responsibility of each accused is basedon unlawful confinement of Mr. Desjarlais while he was being choked. The evidence must support the determinations that each accusedintentionally aided or abetted in the killing of Mr. Desjarlais with knowledge that the principal offender (the person choking Mr.Desjarlais) intended to kill Mr. Desjarlais.

The participation of an accused must have been a “significant” cause of Mr. Desjarlais’ death,a contributing cause beyond de minimis. R v Nette, 2001 SCC 78, Arbour J at para 71. 4. Substantial Cause [53] Respecting step (3), an accused is not guilty of first degree murder just because he or she was a party to Mr. Desjarlais’murder, that is, just because he or she intentionally aided or abetted the killing with knowledge that the principal offender intended to killMr. Desjarlais.

Justice Arbour commented in Nette at para 62 that “The degree of participation in the killing by a party whose liabilityfor murder is based on aiding or abetting under s. 21(1)(

b) or (

c) of the Criminal Code … may, under the Harbottle formulation, beinsufficient to permit a finding that the murder amounts to first degree under s. 231(5) ….” To attract the penal classification of firstdegree murder, the accused’s contributions or degree of participation must have been a “substantial” cause of Mr.

Desjarlais’ death, inthe sense that the contributions were an “essential, substantial, and integral part of the killing of the victim” or “sufficiently immediate,direct, and substantial to warrant the greater stigma and sentence attached to first degree murder:” Nette at paras 56, 62, 73; Harbottle at324. The issue is whether the blameworthiness of the accused’s conduct warrants the increased penalty and stigma of first degreemurder: Nette at para 64. V. Parties to First Degree Murder - Assessment A. Concessions and Common Findings 1. Concessions [54] Ms. Omeasoo and Mr.

Maygard-Olynyk expressly conceded that: their actions amounted to unlawful confinement.no intervening act occurredtheir conduct was part of the transaction in which Mr. Desjarlais was killed.

[ 55 ] These concessions were warranted on the evidence. Ms. Omeasoo and Mr. Maygard-Olynyk were present during the period that Mr. Desjarlais was choked, Ms. Omeasoo for part of the period, Mr. Maygard-Olynyk for the entire period. The acts of binding or tying Mr. Desjarlais’ legs when he was being choked amounted to intentional, unlawful, physical restraint. These acts prevented Mr. Desjarlais from escaping the choke put on him by the principal offender. [ 56 ] I did not understand Mr. Favel to have disputed that binding Mr.

Desjarlais’ legs was unlawful confinement, that no intervening act occurred, or that his conduct was part of the transaction in which Mr. Desjarlais was killed. 2. Common Findings [ 57 ] The evidence supports the reasonable inference that Mr. Desjarlais was murdered. He was found burnt in Manny’s with a sock in his mouth and a wire around his neck. Each of the accuseds provided evidence supporting the finding that the principal offender killed Mr. Desjarlais by choking him. [ 58 ] I find that the evidence supports the reasonable inference that tying or binding the legs of Mr.

Desjarlais was intended to assist the principal offender who was choking Mr. Desjarlais. [ 59 ] As regards Ms. Omeasoo and Mr. Maygard-Olynyk, the principal offender demanded the assistance and each accused complied. I recognize that they complied reluctantly and, on their evidence, because of fear of the principal offender, but that made their participation no less intentional. Whether, for example, a defence of duress is available in the circumstances is a matter for another stage of the trial. [ 60 ] I find that the evidence supports the reasonable inference that tying or binding the legs of Mr.

Desjarlais when he was being choked prevented Mr. Desjarlais from escaping the choke. The confinement hindered his ability to free himself. The confinement, then, had the effect of assisting the principal offender in choking Mr. Desjarlais. I find, then, that a reasonable inference from the evidence is that the tying or binding of Mr. Desjarlais’ legs was at least a significant contributing cause of his homicide. [ 61 ] In addition, I find that each statement shows that the incidents that occurred happened unexpectedly.

Further, in the circumstances of the evening, each accused had consumed some alcohol and methamphetamine. These two matters are in the nature of exculpatory evidence and properly fall for consideration at a later stage of the trial. 3. The Pritchard Issue [ 62 ] Mr. Favel raised an issue drawn from Pritchard , whether the unlawful confinement was subsumed or “consumed” in the killing itself so that there was no distinct act of unlawful confinement that might attract the application of s. 235(1)(e).

At para 27 of Pritchard , Justice Binnie wrote that: [27] Even a confinement which satisfies s. 279(2) will not trigger s. 231(5)(

e) if it is consumed in the very act of killing. In order to trigger s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts …. The contention was that the choking of Mr. Desjarlais and the binding of his ankles or feet were not two distinct criminal acts. See also Sundman at para 40 : [40] Finally, this Court has ruled that the underlying offence of domination and the killing must involve two distinct criminal acts ( Pritchard , at para. 27 , citing Kimberley , at para. 108 , per Doherty J.A.; Magoon , at para. 74 ; see also Manning and Sankoff, at pp. 961- 62).

The underlying offence cannot be “consumed in the very act of killing”; in other words, the underlying offence and the killing must not be one and the same ( Pritchard , at para. 27 ). If there is only one criminal act, it cannot be said that the offender exploited the domination inherent in the underlying offence with the act of killing (para. 29). In such cases, the heightened moral blameworthiness required for first degree murder is absent. And see R v Ally , 2022 ONCA 558 , Simmons JA at paras 79-80. [ 63 ] In my opinion, the binding or tying of Mr.

Desjarlais’ ankles or feet was a distinct criminal act from the choking of Mr. Desjarlais. The binding was performed by individuals other than the principal offender. The binding involved an additional or extra element of domination of Mr. Desjarlais permitting the principal offender to exploit that domination by the act of killing Mr. Desjarlais. The binding prevented Mr. Desjarlais’ escape and his ability to resist the choke hold. The choking did not, by itself, confine Mr. Desjarlais in the manner accomplished by the binding. The binding enhanced the effectiveness of the choking.

The act of killing by choking and the act of confinement by binding are not one and the same. The binding was

an act by parties to the offence was added to the offence already being committed against Mr. Desjarlais by the principal offender. See Pritchard at para 29 . B. Ms. Omeasoo 1. Facts [ 64 ] Ms. Omeasoo’s statement was reviewed in detail in the Omeasoo Voluntariness Decision. [ 65 ] Ms. Omeasoo’s main account of what occurred on the evening in question was provided in her November 15, 2020 interview with Cst. Fulton. She had started the night at another person’s home. Mr. Favel asked her to go with him to Mr. Desjarlais’ place. She didn’t know why they were going.

No one told her anything (t5.196-239). [ 66 ] Joe was at his place. “I was just told to stay by him ... just like talk to him.” Levi told her that. Levi searched the house. He didn’t say what he was searching for.

[67] At Joe’s place, Levi sat beside Joe. Levi was getting mad at Joe. Shane brought a bottle of Silent Sam vodka. Shane left, butlater returned (t5.509-510). They drank vodka and snorted Percocets (t5.590-591). [68] It became apparent to Ms. Omeasoo that Levi believed that Joe had taken some of his goods. [69] She said that a group of people arrived, including Riley. Levi told Riley to sit on the couch and he did (t5.520). [70] Levi told Ms. Omeasoo to see if the door was locked.

It was, and she told him (a board was braced against the door). [71] Levi started choking Joe (t5.331, 413). “Joe tried to get up or something and that’s when Levi got up and just had him in aheadlock like that” (t5.694-696). [72] Shane grabbed some extension cords. [73] Shane tried to tie up Joe first, “but I think he got kicked or hit or something and then Levi got mad” (t5.536-537, 702-703). [74] She thinks Levi hit Riley. After that Levi told Riley to grab the cord and tie up Joe and told Ms. Omeasoo to help him (t5.555-556, 703-705). [75] She told Levi she didn’t want to.

Levi said that if she didn’t she was going to get tied up too. Ms. Omeasoo said that she wasscared “and if I didn’t do that I felt like was going to do that to me too ‘cause he said he was gonna” (t5.322-323, 822-823). [76] She and Riley tied Joe up (t5.350-361, 707). [77] When they were tying his legs, Joe was on the floor, face down. She didn’t recall how they tied his legs. Cst. Fulton asked,“and while you guys are at his legs doing this where is Levi?” Ms. Omeasoo responded, “he’s choking him on the couch I think” (t5.412-413). Levi was seated.

Joe was “kind of like on his belly” (t5.418-420). [78] Once Joe was tied up, she stood by the stairs. She didn’t know what to do. [79] She grabbed a speaker, left, and did not return (t5.490, 707-708). [80] She said that when she left, Joe “was still I guess like kind of fighting” (t5.458). [81] Ms. Omeasoo denied that she had told anyone to get a cord (t5.738). [82] Cst. Fulton played an audio clip from Mr. Maygard-Olynyk’s interview. He had said that Ms. Omeasoo had directed him to tieup Joe. She denied having told anyone to grab a cord and denied telling Riley to stop being a pussy (t5.762-764). 2.

Knowledge [83] Ms. Omeasoo did assist Mr. Maygard-Olynyk with tying Mr. Desjarlais’ legs, at Mr. Favel’s direction. This was unlawfulconfinement. I found that a reasonable inference from the evidence is that Ms. Omeasoo intended to assist Mr. Favel as he haddemanded. I acknowledge that Ms. Omeasoo stated that she did so reluctantly and because of fear, but that will be considered at a laterstage of proceedings. [84] But does the evidence support the reasonable inference that Ms. Omeasoo knew that Mr. Favel was intending to kill Mr.Desjarlais?

That is, did her participation make her a party to murder? [85] I acknowledge that on her evidence, Ms. Omeasoo left while Mr. Desjarlais was still alive. She was also under the influence ofalcohol and Percocets. That, in addition to fear and the unexpected nature of what happened at Mr. Desjarlais’ place, could have affectedher appreciation of events. These, in my opinion, are considerations for a later stage of the trial. [86] Ms. Omeasoo did observe Mr. Desjarlais being choked. She used the word “choked.” While she also used the term“headlock,” a reasonable conclusion from the evidence is that she saw Mr.

Desjarlais being choked, and not merely as Levi was besidehim on the couch, but as Mr. Desjarlais was on the floor, face down (t5.388-394). His legs were moving before he was tied up (t5.397-404). [87] Ms. Omeasoo, on her account, observed objectively dangerous conduct by Mr. Favel. He was choking Mr. Desjarlais. Thatwas intentional conduct by Mr. Favel that was likely to cause at least bodily harm and that could lead to death. And Mr. Favel demandedassistance so that Mr. Desjarlais’ struggling could be reduced. She assisted him in increasing the effectiveness of his assault on Mr.Desjarlais.

In R v Cooper, (SCC), [1993] 1 SCR 146 Justice Cory observed at 159 that “Since breathing is essential tolife, it would be reasonable to infer the accused knew that strangulation was likely to result in death.” Keeping in mind that Ms.Omeasoo’s statement is only evidence against her, a jury hearing Ms. Omeasoo’s testimony could have reasonably inferred that Mr.Favel knew that the choking was likely to result in Mr. Desjarlais’ death. Ms. Omeasoo was observing Mr. Favel’s conduct. Areasonably available inference is that Ms. Omeasoo could and did also infer that Mr. Favel knew that he was killing Mr.

Desjarlais. [88] R v Magno, , 210 CCC (3d) 500 (ON CA), Justice Gillese wrote as follows at para 18 : [18] ....

Section 229(

c) requires proof of foresight, that is, that an accused foresaw that the acts done for the unlawful object werelikely to cause death. The inquiry is ultimately a subjective one. That does not mean, however, that a consideration of what the normalor reasonable person would have intended or foreseen is unhelpful or irrelevant …. (My comments in the course of submissions relating to the circumstantial value of normal or reasonable perceptions are supported by

Justice Gillese in this passage.) [ 89 ] The Crown pointed out that the conclusion that Ms. Omeasoo knew that Mr. Favel knew that he was killing Mr. Desjarlais was not speculative. During her interview with Cpl. Kraal that took place earlier in the day, Cpl. Kraal asked Ms. Omeasoo what she thought was happening when Mr. Favel was choking Mr. Desjarlais. Ms. Omeasoo said “I knew that he was gonna die, I guess” (t4.1486-1487).

When asked why she knew this, she said “Because Levi wasn’t letting go of him … and he wasn’t letting him do anything” (t4.1489-1492). [ 90 ] I conclude that the evidence reasonably supports the conclusion that Ms. Omeasoo knew that Mr. Favel intended to kill Mr. Desjarlais or intended to cause bodily harm that he knew was likely to cause death. This knowledge, coupled with the intentional assistance she provided to Mr. Favel while he choked Mr. Desjarlais, supports the reasonable conclusion that Ms. Omeasoo was a party to Mr.

Desjarlais’ murder. [ 91 ] This leaves the issue of whether her conduct was a substantial cause of Mr. Desjarlais’ death. I will return to that issue shortly. C. Mr. Maygard-Olynyk 1. Facts [ 92 ] Mr. Maygard-Olynyk’s interviews are discussed in detail in the Maygard-Olynyk Voluntariness Decision. (

a) March 10 Interview [ 93 ] Mr. Maygard-Olynyk admitted that he had initially said that Jessica was present at Mr. Desjarlais’ place when she was not. He confirmed, though, that the remainder of his account of what had happened on the evening in question was true. [ 94 ] Mr. Maygard-Olynyk and Jessica arrived at Mr. Desjarlais’ place shortly before the material events. The occupants of the Mr. Desjarlais’ place were Mr. Desjarlais, Mr. Favel, Mr.

Maygard-Olynyk, Jessica, and an unknown female (“black hair, shorter, a little more weight on her,” nose piercing, lip piercing, ear piercings, no visible tattoos, mid-twenties, Native). [ 95 ] They all sat down in the living room. They were drinking. [ 96 ] Mr. Favel said his belongings were missing and had been found in Mr. Desjarlais’ possession. He lectured Mr. Desjarlais about respect and being honest. [ 97 ] Mr. Maygard-Olynyk was uncomfortable with what Mr. Favel was saying to Mr. Desjarlais. He wanted to leave with Jessica. [ 98 ] Mr. Favel told them not to go.

This isn’t over. [ 99 ] The black-haired girl was sitting next to Mr. Desjarlais. She began giving him shit. [ 100 ] Mr. Favel got up and tied Mr. Desjarlais’ hands with five feet of rope, red “standard” rope. Mr. Desjarlais was saying “please don’t kill me.” [ 101 ] Mr. Favel told Mr. Maygard-Olynyk to find some tape, “to hold two flappy fuckin’ lips together” (t1.1979-1982). Mr. Maygard-Olynyk found some duct tape in a cupboard (t2.446-449). [ 102 ] Mr. Favel cut a piece of tape and put it on Mr. Desjarlais’ mouth. [ 103 ] Mr. Favel started hitting Mr.

Desjarlais, asking whether he was going to tell him where the phone was now. The black-haired girl hit Mr. Desjarlais too. [ 104 ] Mr. Desjarlais started to get up from the couch. Mr. Favel put his arm around his neck in a choke hold, from behind. [ 105 ] Mr. Maygard-Olynyk did not hit Mr. Desjarlais. He and Jessica were standing and watching. [ 106 ] Mr. Desjarlais was struggling. Mr.

Maygard-Olynyk said: … Joe tried to get up and tried to … I seen him run away but … Levi grabbed him and put his arm around … Joe’s neck in a choke hold and had brought him … like got on top of him, like brought him down to the couch on his all fours and just … began … like putting pressure (t1.2034-2039; see 2042-2075). [ 107 ] Mr. Maygard-Olynyk then said: so then the black-haired girl ... quickly gets up ... gets his legs ... tries to pull them out from under him so that ... his legs are straight, straight out and he can’t .... like get up and move .... And ... she was just ... telling me to ... come help ....

You know, quit being a pussy and shit like that .... And so she said go find a fuckin’ rope or extension cord or something. So I was like okay ... And then ... I grab ... like a little power drill ... with an extension cord on it ... snipped the end off ... the drill part off (t1.2076-2094). [ 108 ] Mr. Maygard-Olynyk said he passed the cord to the black-haired girl. She began to wrap it around his feet but couldn’t tie it, “so she yelled at me and said like ... come ... fuckin’ tie this rope ... And I was quite frightened ... So I go over there ... So ... I tied a knot ... and stepped away again” (t1.2116-2129).

The cord secured Mr. Desjarlais’ ankles. See t2.693-713.

[ 109 ] Mr. Desjarlais had become unconscious. Mr. Favel kept his hold on his neck until Mr. Desjarlais went limp. Mr. Maygard- Olynyk said this: … so then I had stepped back and … during that time like I was thinking … like is he gonna fuckin’ kill him, like what, what’s going? Um, at this point, Joe then went unconscious, like his body went limp … you could tell like he still … like he just passed out ... ‘cause he was still breathing …. the body went limp but he was still like snoring (t1.2137=2145). [ 110 ] Mr.

Maygard-Olynyk then said: And like … so at that point, I was like okay, so like he’s out … we’re good, we’re done … and we could leave (t1.2147-2148). [ 111 ] However, ... Levi kept fuckin’ … like he just made … his hold around his neck tighter and tighter …. he was going tighter …. he just kept going tighter and tighter and tighter … for another like two minutes after until … the snoring stopped. And then he let go and Joe’s body just fell to the ground …. (t1.2150-2158) [ 112 ] Mr. Favel got another extension cord, wrapped it around Mr. Desjarlais’ neck, and tied a knot. See t2 714-718. (

b) July 6 Morning Interview [ 113 ] Counsel referred to a passage from the July 6 morning interview (t3.4431-433): MAYGARD: I didn’t want to go, you know, against his wishes or, you know, don’t want to offend him in any way. So I did and thinking like it wouldn’t go any farther than that. I find that in context “any farther than that” was referring to the grabbing of an extension cord by Mr. Maygard-Olynyk which he handed to Mr. Favel. Mr. Favel went ahead and tied Mr. Desjarlais’ hands (t3.429-449). [ 114 ] Cpl. Harnish asked how Mr. Desjarlais died. Mr.

Maygard-Olynyk said “Levi strangled him to death.” He used a chokehold. Mr. Desjarlais got up from the couch “real fast to try to make a run for the door.” Mr. Favel was able to throw his arm around his neck. Mr. Favel kept the chokehold on for a good minute, a minute and a half after Joe stopped breathing (t3.490-513). [ 115 ] While Mr. Desjarlais was in the chokehold, Mr. Favel “kind of hints” at the black-haired girl to restrain his legs. “She snapped at me and demanded I fuckin’ help her.” He did.

He felt “I would be killed if I didn’t.” “I felt like I would have been next if I didn’t do what they said (t3.522-530). [ 116 ] Mr. Maygard-Olynyk said he helped restrain the legs and helped tie the knot around the ankles. At the time, Mr. Favel still had Mr. Desjarlais in the chokehold (t3.532-537). (

c) July 6 Evening Interview [ 117 ] Mr. Maygard-Olynyk confirmed that he held down Mr. Desjarlais’ legs and helped tie his legs with rope, “but that’s because I was scared for my life” (t4.509-512). [ 118 ] Mr. Maygard-Olynyk said that he and the black-haired girl tied Mr. Desjarlais’ legs with “an extension cord” (t4.609-625). [ 119 ] After Sgt. Bradfield’s intervention in the interview, Cpl. Simard resumed the interview. Mr. Maygard-Olynyk confirmed that he had told Bruce that he had tied Mr. Desjarlais’ legs with the power cord and helped remove his clothes. [ 120 ] Mr.

Maygard-Olynyk confirmed that his only involvement was to restrain Mr. Desjarlais’ legs and to help with binding his feet with the power cord (t4.1094-1096). 2. Knowledge [ 121 ] Given Mr. Maygard-Olynyk’s account of what occurred, Mr. Maygard-Olynyk, like Ms. Omeasoo, admitted to binding Mr. Desjarlais’ legs. He too committed the offence of unlawful confinement. He too assisted Mr. Favel when Mr. Favel was choking Mr. Desjarlais. [ 122 ] Does the evidence support the reasonable inference that Mr. Maygard-Olynyk knew that Mr. Favel was intending to kill Mr. Desjarlais?

That is, did his participation make him a party to murder? [ 123 ] I acknowledge that on his evidence Mr. Maygard-Olynyk was a reluctant participant. He too was afraid of Mr. Favel. He too was subject to the effects of the unexpected nature of what happened at Mr. Desjarlais’ place and he too had been consuming intoxicants. This could have affected his appreciation of events. Again, these are, in my opinion, considerations for a later stage of the trial. [ 124 ] The assessment of Mr. Maygard-Olynyk’s knowledge at the material time has two aspects. [ 125 ] First, his circumstances were like those of Ms.

Omeasoo. [ 126 ] He saw Mr. Desjarlais being choked. His evidence was clear: Mr. Desjarlais was choked from the rear and taken down to the ground. He was on all fours. Mr. Dejarlais struggled. At this point, he was told by the black-haired girl to help. Mr. Maygard-Olynyk secured Mr. Desjarlais’ ankles.

[ 127 ] Mr. Maygard-Olynyk, like Ms. Omeasoo, observed objectively dangerous conduct by Mr. Favel. Mr. Favel was choking Mr. Desjarlais and had dragged him to the floor. That was intentional conduct by Mr. Favel that was likely to cause at least bodily harm and that could lead to death. Mr. Desjarlais had been struggling. Mr. Maygard-Olynyk’s contribution reduced his ability to struggle. [ 128 ] I refer back to a passage from the March 10 Interview with Sgt. Kuca where Mr. Maygard-Olynyk was referring to the efforts of the black-haired girl. He said that the black-haired girl tried to pull Mr.

Desjarlais’ legs out from under him so his legs are straight, straight out, so he can’at “like get up and move.” That was exactly the purpose of the binding, to enhance the effectiveness of Mr. Favel’s assault on Mr. Desjarlais. [ 129 ] I refer again to the passage from Cooper at 159: “Since breathing is essential to life, it would be reasonable to infer the accused knew that strangulation was likely to result in death.” [ 130 ] Mr. Maygard-Olynyk said what he observed. A jury hearing Mr. Maygard-Olynyk’s account could have reasonably inferred that Mr. Favel knew that the choking was likely to result in Mr.

Desjarlais’ death. A reasonably available inference as well was that Mr. Maygard-Olynyk could and did also infer that Mr. Favel knew that he was killing Mr. Desjarlais. [ 131 ] Mr. Maygard-Olynyk said “during that time like I was thinking …. like is he gonna fuckin’ kill him, like what, what’s going [on]?” (t1.2137-2139). I consider this to be evidence that illuminates Mr. Maygard-Olynyk’s advertence to the risk of death faced by Mr. Desjarlais. This evidence supports the reasonable conclusion that when Mr. Maygard-Olynyk was securing Mr. Desjarlais’ ankles, he was aware that Mr.

Favel’s actions threatened death for Mr. Desjarlais. [ 132 ] I recognize that there could be a more restrictive

interpretation of the words “during that time.” At this point, in the context of a directed verdict application, the

interpretation favouring the Crown has priority. I keep in mind as well that the ultimate decision about what Mr. Maygard-Olynyk meant will be for the trier of fact at the end of the trial. [ 133 ] But second, Mr. Maygard-Olynyk’s account described circumstances that Ms. Omeasoo did not witness. He said that Joe went limp, unconscious. He was still breathing. Mr. Maygard-Olynyk thought that he’s out, we’re good, we’re done, we could leave. But then, according to Mr. Maygard-Olynyk, Mr. Favel continued to choke Mr. Desjarlais, until he was no longer breathing. There was a break, then, in Mr.

Favel’s assault. [ 134 ] Did Mr. Desjarlais’ period of unconsciousness and Mr. Maygard-Olynyk’s reaction to that show that Mr. Maygard-Olynyk had not known that Mr. Favel was going to kill Mr. Desjarlais? [ 135 ] In my opinion, the evidence reasonably supports the conclusion that Mr. Maygard-Olynyk experienced relief. What he had thought was going to happen didn’t happen. He had thought, as he had commented, that Mr. Favel was going to kill Mr. Desjarlais. When Mr. Desjarlais became unconscious, Mr. Maygard-Olynyk believed that what had been unfolding would cease, Mr. Desjarlais could be left alone, and Mr.

Maygard-Olynyk could leave. The inferences he made with the changed events did not retrospectively amend his earlier perceptions and understandings. When Mr. Maygard-Olynyk bound Mr. Desjarlais’ ankles, he did so with the knowledge that Mr. Favel was intending to kill him or was intending to cause him bodily harm that Mr. Favel knew was likely to cause Mr. Desjarlais’ death. [ 136 ] This knowledge, coupled with the intentional assistance he provided to Mr. Favel while he choked Mr. Desjarlais, supports the reasonable conclusion that Mr. Maygard-Olynyk was a party to Mr.

Desjarlais’ murder. [ 137 ] Again, the next step is to consider substantial cause. I will return to that issue shortly. D. Mr. Favel 1. Facts (

a) March 13 Afternoon – (Partial) Confession to Cpl. Olfert [ 138 ] The main evidence comes from the March 13 Interview with Cpl. Olfert. Mr. Favel was describing being in Mr. Desjarlais’ place. Mr. Desjarlais was present. Mr. Favel said this (t8.3039-3127): FAVEL: Okay we were sitting in the living room ... I did see what happened .... OLFERT: What’s that Levi? What happened? FAVEL: He screamed and he tried to run. OLFERT: Who screamed and tried to run? FAVEL: Joe. And I looked at Riley and Riley jumped up, got him down.

Christine held him, I held him, and I told Riley don’t let him go, don’t let him go, don’t let him go and Riley just went harder and harder. OLFERT: What do you mean went harder and harder? FAVEL: I went harder on it like just wouldn’t let go. [While this is what the transcript says and what I heard, but I view this as a mis-statement and I do not consider this (“I went harder”) as a slip, as inculpatory evidence.]

OLFERT: Like what was he doing? FAVEL: Choking him. OLFERT: Choking him? FAVEL: Yeah. OLFERT: With what? FAVEL: His arms. OLFERT: Okay. Like wrapping his arms around his neck? FAVEL: Yeah like, like this, like really really tight OLFERT: From behind? FAVEL: Yeah and Christine grabbed his one arm and he was already on the ground. OLFERT: Sorry Christine grabbed whose arm? FAVEL: Joe. Like grabbed his one arm, his one free arm ‘cause he was kept trying to grab Riley and Christine grabbed it and I kept saying hold him and then I just kind of stood there and watched.

OLFERT: ... you said that at the beginning of this before Riley jumped up and grabbed him that Joe had screamed .... what made Joe scream? FAVEL: He tried to run. OLFERT: Why was he trying to run though? FAVEL: I don’t know. We were just sitting there and then. OLFERT: ‘Cause when we were all talking right now and friggin’ if one of us started to scream and run away I’d think that was odd .... FAVEL: This was after like ...

I sat down with him, I’m like don’t fuckin’ try that agian, like don’t fuckin’ do that, what the fuck’s wrong with you man and then everybody else started yelling at him and then that’s when he did it. He screamed and tried to run. OLFERT: Where was he running to? FAVEL: Towards the wall, the stairway. OLFERT: ... to get out the FAVEL: Yeah but he tripped on his knee right away and then I looked at fuckin’ Riley and Riley jumped up and got on his neck right away. OLFERT: Okay so Riley gets on his neck. FAVEL: Yeah. OLFERT: Starts choking from behind. FAVEL: And then he kind of fell forward.

OLFERT: Is Joe on the ground? FAVEL: ... no he was like he fell to one knee, Riley jumped up, grabbed him and they kind of fell forward and then Christine jumped on him too and then grabbed his arm and then I just kind of said like don’t let go and the he went harder and just kind of choked him, choked him and choked him, and then just till he just stopped moving, and that’s when he grabbed the wire and the fuckin’ whatever the rope wire and tied it around his fuckin’ ... OLFERT: ... who got the wire? FAVEL: Ah Riley did, ‘cause there was wires all over the place. OLFERT: Just Riley? FAVEL: Yeah.

OLFERT: ‘Cause he’s tied several places ... FAVEL: Yeah ... Well he tied it and Christine tied the feet. OLFERT: Okay, and what were you doing at that time?

FAVEL: ... I was just standing there. OLFERT: Where were you standing? FAVEL: Right beside them. OLFERT: Did you tell him to stop at all? FAVEL: No. OLFERT: Do anything? Did you say anything? FAVEL: I said don’t, I said don’t let him go. OLFERT: Why did you say that? FAVEL: ... I don’t know why I said it. I think I was scared for him to go to the cops and try to say that we were trying to do s- ‘cause really we weren’t trying to do nothing to him. I just wanted to move my stuff out. I don’t know why he jumped out. I don’t know, I was scared he would go to the cops. OLFERT: About what?

FAVEL: When you’re high on crystal meth it makes you think a whole lot of different things .... in my mind I thought he was going go to the cops and try to say something about us like kidnapping him or something like that. That’s why I said don’t let him go. [ 139 ] Cpl. Harnish later rejoined the interview. He said “I think ... that’s the closest version to the truth that you’ve said so far. Um, there’s a s-still a couple more things in there that, you know, I-I think you’re withholding on and um…” Mr. Favel said “No that’s it there like. I gave Christine the ... it was a controller wire I think.

I said tie his feet.” (t8.3209-3220). (

b) Statements to Undercover Officer [ 140 ] In addition to the evidence from the interview, there were two relevant recordings of conversations between Mr. Favel and an undercover officer: 2 nd Statement: 17:22-18:02 3.54-55: I said don’t let him go, and that’s when White Boy pulled harder. 4.62-63 I said don’t let him go … I binded ( sic ) his feet. 4.93-94 I said, don’t let him go …. I bind the feet. 3 rd Statement: 18:21-19:05 8.160-161: I said “don’t let him go” …. I started binding the feet 2. Mr. Favel’s Participation [ 141 ] Mr.

Favel’s participation has some features distinguishing it from the accounts of Ms. Omeasoo and Mr. Maygard-Olynyk. [ 142 ] The evidence supports a reasonable conclusion that Mr. Favel engaged in abetting, that is, encouragement, promoting, or procuring, through the “don’t let him go” comments. There is also the evidence of a direction to the black-haired girl to tie Mr. Desjarlais’ feet. In this direct verdict application context, Mr. Favel’s exculpatory explanations for “don’t let him go” do not neutralize the inferences supportive of the Crown’s case that may be drawn from his comments. [ 143 ] Mr.

Favel did, like the other accuseds, admit to binding Mr. Desjarlais’ feet, and so committed unlawful confinement. The evidence of this comes from the statements to the undercover officer. [ 144 ] The evidence supports the conclusion that the binding of Mr. Desjarlais’ feet occurred during the time that Mr. Favel was making his “don’t let him go” comments. The comments and the binding of the feet are linked in his exposition. [ 145 ] There is no evidence that he was requested to bind Mr. Desjarlais’ feet by Mr. Maygard-Olynyk. From Mr. Favel’s claims that he bound Mr.

Desjarlais’ feet, it may be reasonably inferred that Mr. Favel did so intentionally. No evidence tends to block that inference. [ 146 ] As indicated respecting the other accuseds, binding Mr. Desjarlais’ feet had the effect of reducing Mr. Desjarlais’ struggling and his resistance to being choked. Mr. Favel’s conduct may be reasonably understood as conduct that aided as well as abetted the killing of Mr. Desjarlais. 3. Knowledge [ 147 ] The inference of Mr. Favel’s knowledge of Mr. Maygard-Olynyk’s intention to kill Mr. Desjarlais is strong in Mr. Favel’s account. Mr.

Maygard-Olynyk, without provocation, jumped on Mr. Desjarlais’ back when Mr. Desjarlais tripped when trying to flee the

room. Mr. Maygard-Olynyk started choking Mr. Desjarlais. He went harder and choked him and choked him until Mr. Desjarlais stopped moving. On Mr. Favel’s account, this was not ambiguous conduct. The reasonable inference is that it was during this period that Mr. Favel bound Mr. Desjarlais’ feet. The nature of the inference is the same as that described respecting Ms. Omeasoo and Mr. Maygard-Olynyk – that Mr. Favel knew that Mr. Maygard-Olynyk was intending to kill Mr. Desjarlais. Mr.

Favel observed lethal, intentional behaviour, and he knew it. [ 148 ] This knowledge, coupled with the intentional assistance he provided to Mr. Maygard-Olynyk while he choked Mr. Desjarlais, supports the reasonable conclusion that Mr. Favel was a party to Mr. Desjarlais’ murder. E. Sufficient Causal Contribution? [ 149 ] I have reached the issue of sufficient causal contribution. [ 150 ] One issue is whether I should consider this issue at all. Is this an issue that’s best left to the trier of fact? My hesitation, so far as I can discern, is founded on two reflections.

First, the issue of whether there is a sufficient causal contribution is a normative decision as opposed to a factual decision. Second, the Supreme Court has confirmed in cases like Nette and Harbottle that in effect s. 231(5) is in the nature of a sentencing provision. In light of these reflections, perhaps the issue of sufficient causal contribution should not be considered by the trier of law in a directed verdict application. [ 151 ] I have come to the conclusion that my misgivings are misplaced.

The accuseds are entitled to a determination of whether a reasonably jury properly instructed could convict respecting the charges they face, first-degree murder. This is the charged offence. Therefore, a directed verdict application is available, in full. I am not entitled to walk away or try to avoid that decision. [ 152 ] Further, as for the normative nature of the decision, the reality is that elements of offences often have normative elements. Even the notion of causation that I have been referring to in the course of these reasons has a normative and not only physical or factual aspects.

That is confirmed by Justice Arbour in Nette . [ 153 ] I therefore must consider the issue of whether the accuseds made a sufficient causal contribution to the death of Mr. Desjarlais. [ 154 ] Another question then arises. Given that the determination of sufficient causal contribution is normative, given that the issue is whether a reasonable jury properly instructed could find a sufficient causal contribution, does it follow that just because the Crown has established that the accuseds are each parties to murder, that each has played a causal role in the death of Mr.

Desjarlais that, by that very fact, means that there is evidence on which a reasonable jury properly instructed could convict for first-degree murder? [ 155 ] In my view, an affirmative response would be incorrect. More is required than simply a contribution to the death, to the murder, to attract the application of s. 231(5). I’ll repeat a passage mentioned earlier. Justice Arbour commented in Nette at para 62 that “The degree of participation in the killing by a party whose liability for murder is based on aiding or abetting under s. 21(1) (

b) or (

c) of the Criminal Code … may, under the Harbottle formulation, be insufficient to permit a finding that the murder amounts to first degree under s. 231(5) ….” [ 156 ] Given the foregoing reflections and Justice Arbour’s warning in Nette , in my view if falls to me to decide whether the evidence of the statements bearing on the responsibility of each of the accuseds supports the Crown having adduced evidence that allows a reasonable jury properly instructed to find beyond a reasonable doubt sufficient causal contribution. [ 157 ] The question then concerns the test I must apply in making this determination.

It is a rest relating to the blameworthiness of the conduct of the accuseds in the context of the killing. The question is whether their causal contribution is essential, substantial, an integral part of the murder; whether it is sufficiently immediate, direct, and substantial; whether the contribution is such as to warrant the stigma and sentence of first degree murder. [ 158 ] I therefore turn to the consideration of whether the participation of each accused is a causal contribution sufficient to attract the application of s. 231(5). [ 159 ] The physical contributions of the accuseds to Mr.

Desjarlais’ death were, on their accounts, roughly similar. Each accused admitted binding Mr. Desjarlais’ feet or ankles. The result in each case was a contribution to the effectiveness of the choke and a reduction in Mr. Desjarlais’ ability to escape. Mr. Favel had the added contribution of abetting, of verbal encouragement. [ 160 ] The accounts of the choking were roughly similar. [ 161 ] Ms. Omeasoo left while Joe was still alive. [ 162 ] Mr. Maygard-Olynyk described Mr. Desjarlais falling into unconsciousness, which he thought would mark the end of the attack on Mr. Desjarlais. [ 163 ] Mr. Favel described Mr.

Maygard-Olynyk choking Mr. Desjarlais until he went limp, and then Mr. Maygard-Olynyk renewed his attack. [ 164 ] Does the blameworthiness of the accuseds’ contribution rise to the level of warranting a finding of guilt for first degree murder? [ 165 ] In my opinion, what was essential to Mr. Desjarlais’ death, the most substantial factor, was Mr. Desjarlais being choked. The principal offender, the person who choked Mr. Desjarlais, was the dominant figure and played the dominant role in the death of Mr. Desjarlais. [ 166 ] The principal offender carried on his attack, after Ms.

Omeasoo left in her account, after Mr. Desjarlais had become unconscious in Mr. Maygard-Olynyk’s account, and after Mr. Desjarlais had gone limp in Mr. Favel’s account.

[ 167 ] On their accounts, each accused’s interventions were brief, although sufficient to pull them into a causal role in Mr. Desjarlais’ murder. [ 168 ] The principal offender started the attack on Mr. Desjarlais, continued through the brief intervention of the other accuseds, and completed his killing. [ 169 ] In my opinion, the Crown’s evidence does not support a reasonable conclusion that, given each accused’s account along with other admissible evidence, their contributions to the death of Mr. Desjarlais are sufficient to attract classification as first degree murder. F.

Conclusion [ 170 ] I find that on the evidence, a reasonable jury, properly instructed, could not find the accuseds guilty of first degree murder, but could find the accuseds guilty of second degree murder. [ 171 ] The directed verdict applications then are successful to the extent that the most serious offence reasonably available on the evidence against each accused is second degree murder. Heard on the 1 st day of September, 2022. Delivered at the City of Wetaskiwin, Alberta the 2 nd day of September, 2022. Signed at the City of Wetaskiwin, Alberta this 31 st day of October, 2022. W.N. Renke J.C.Q.B.A.

Appearances: Jeff Rudiak Alexandra Dunn Crown Prosecution Service for the Crown Andrew Phypers Advocate Law for Levi William Favel Gregory Lazin for Riley Keith Maygard-Olynyk Walter Raponi Raponi Rideout Tarrabain for Brittany Lynne Lucy Omeasoo