R v Favel, 2023 ABKB 708

Court of King’s Bench of Alberta Citation: R v Favel, 2023 ABKB 708 Date:20231212 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 Judgment of the Honourable Justice W.N. Renke _______________________________________________________ [1] Mr. Favel, Mr. Maygard-Olynyk, and Ms.

Omeasoo were each charged with first-degree murder in connection with the deathof Joseph Desjarlais and arson with disregard for human life in connection with a fire that occurred at Manny’s Motel in Wetaskiwin. [2] The trial proceeded by judge alone. In separate decisions, I found that the statements made by each accused to the policewere voluntary and, in Ms. Omeasoo’s case, free from Charter violation.

See 2022 ABQB 570 (Maygard-Olynyk), 2022 ABQB 571(Favel), 2022 ABQB 572 (Omeasoo voluntariness), 2022 ABQB 573 (Omeasoo Charter). [3] The accuseds made directed verdict applications at the close of the Crown’s case. The Crown had confirmed that it wouldnot be proceeding with the arson charge against Ms. Omeasoo. In a separate decision reported at 2022 ABKB 727 , 2022 ABQB727, I determined that on the evidence a reasonable jury, properly instructed, could not find the accuseds guilty of first-degree murderbut could find the accuseds guilty of second-degree murder. Each accused also applied for a stay under s 11(

b) of the Charter. I deferredruling on those applications pending completion of the trial. [4] I’ll review the background facts, identify legal principles and statutory provisions foundational to my deliberations, thenaddress the questions I must answer. The initial questions bear on all the accuseds. I’ll then consider the Crown’s case against each ofMs. Omeasoo, Mr. Maygard-Olynyk, and Mr. Favel. Table of Contents I. Background. 5

A. The Fire . 5 B. Manny’s and the Discovery of a Body . 6 C. The Autopsy . 6 D. Identification of Fire Accelerants . 7 E. The Accuseds . 7 II. Legal Principles and Statutory Provisions . 7 A. The Burden and Standard of Proof . 7 B. Statements . 8 C. Witnesses . 10 1. Witnesses Generally . 10 2. Vetrovec Witnesses . 10 D. The Offences . 12 1. Second-Degree Murder 12 2. Arson . 15 E. Routes to Criminal Responsibility . 16 1. The Accused Actually Committed the Offence . 16 2. Secondary Liability . 16 3. No Requirement for Identification of Principal Offender 17 F. Duress . 18 1. Basic Features of Duress . 18 2.

Elements of the Defence of Duress . 19 3. The Modified Objective Standard . 19 4. Party to a Conspiracy or Association . 21 5. Manslaughter 22 6. Murder 22 III. Questions . 23 IV. Choking and Ligature Strangulation as Causes of Death . 24 A. Determination of Cause of Death by the Trier of Fact 24 B. Dr. Balachandra’s Opinion respecting Ligature Strangulation . 25 C. Assessment 25 1. Manual Choking . 25 2. Ligature Strangulation . 25 V. Blockage of Airway as an Intervening Act 26 A. Responsibility for Blocking Mr. Desjarlais’ Airway . 26 1. Admissions . 26 2. Mr. Potts’ Testimony . 26 3. Mr.

Favel’s Testimony . 26 4. Mr. Maygard-Olynyk’s Testimony . 27

5. The Evidence and Mr. Potts . 27 B. Responsibility for the Sock . 28 C. Timing of Insertion . 28 D. Causal Assessment 29 VI. Ms. Omeasoo . 31 A. Admissible Evidence . 31 1. Ms. Omeasoo’s Statements . 31 2. Mr. Potts’ Testimony . 32 3. Mr. Favel’s Testimony . 32 4. Mr. Maygard-Olynyk’s Testimony . 32 B. Responsibility for Second-Degree Murder 34 1. Ms. Omeasoo’s Third Account of Events . 34 2. Elements of the Offence . 35 3. Conclusion respecting the Elements of the Offence . 40 C. Duress . 40 1. Party to Conspiracy or Association . 40 2. Modified Objective Test 40 3.

Threat of Death or Bodily Harm and Temporal Connection of Threat and Harm .. 41 4. Reasonable Belief that the Threat Will be Carried Out 42 5. No Safe Avenue of Escape . 42 6. Proportionality . 42 D. Conclusion . 42 VII. Mr. Maygard-Olynyk . 43 A. Admissible Evidence . 43 1. Mr. Favel’s Testimony . 43 2. Mr. Osha’s Testimony . 44 3. Mr. Potts’ Testimony . 44 4. Statements and Testimony – Overview and Capacity . 44 5. First and Second Versions and Ms. Morton . 46 6. Chronology . 50 7. Credibility Assessment 61 B. Responsibility for Arson . 65 1. “We Gathered Up” . 65 2. Nate Osha . 65 3. Assessment 66 C.

Responsibility for Second-Degree Murder 66 1. Date, Jurisdiction, Identity . 66 2. Unlawful Act Causing Death . 67

3. Acts of Aiding . 68 4. Knowledge and Intent to Assist in the Commission of the Crime . 68 5. Conclusion respecting the Elements of the Offence . 71 D. Duress . 71 1. Sources . 71 2. Context 75 3. Elements of the Defence of Duress . 79 E. Conclusion . 82 VIII. Mr. Favel 82 A. Admissible Evidence . 82 1. Testimony of Mr. Osha and Mr. Potts . 82 2. Testimony of Ms. Morton . 82 3. Mr. Maygard-Olynyk’s Testimony . 83 4. Mr. Favel’s Testimony and Statements . 84 B. Responsibility for Arson . 99 1. Elements of the Offence . 99 2. Satisfaction of the Elements of the Offence . 100 C.

Responsibility for Second-Degree Murder 101 1. Date, Jurisdiction, Identity . 101 2. Unlawful Act Causing Death . 101 3. Acts of Aiding and Abetting . 102 4. Knowledge and Intent to Assist in the Commission of the Crime . 102 D. Duress . 105 E. Conclusion . 106 IX. Verdicts . 106 A. Ms. Omeasoo . 106 B. Mr. Maygard-Olynyk . 106 C. Mr. Favel 107 D. Stay Pending Determination of Applications under s 11(

b) of the Charter . 10 8 I. Background [ 5 ] All police officers involved were members of the RCMP. A. The Fire [ 6 ] Cst. Benjamin Standish testified that on January 14, 2020 at about 11:43 p.m. he was on general duty in Wetaskiwin with his partner. He saw that Manny’s was on fire. He alerted the fire department. Manny’s was located at 4705-56 Street in Wetaskiwin, Alberta. [ 7 ] The report of Jamie Wilkinson, Fire Chief of the City of Wetaskiwin and a Safety Codes Officer (fire) was admitted as an exhibit by consent. Fire crews had been dispatched to Manny’s following the RCMP report of the fire. Mr.

Wilkinson’s report indicated that the fire had commenced in unit 10 of Manny’s. The evidence did not suggest that the fire was a natural weather event or the result of spontaneous combustion. The fire was not caused by a mechanical or electrical malfunction. Mr. Wilkinson’s opinion was that the fire was

an act of arson.

B. Manny’s and the Discovery of a Body [ 8 ] Dean McNeil, who at the material time worked with Persistent Links, an organization that performed building security, worked with people at risk, and managed Manny’s, testified that Manny’s had 10-12 suites. Mr. Desjarlais occupied Unit 10, above the rental office. On January 14, 2020, Manny’s was not fully occupied but about 8 units had tenants. [ 9 ] Cst. Standish and his partner evacuated the building. Because of smoke and fire, he was not able to get into unit 10. Cst. Standish confirmed that Manny’s had a few empty units. [ 10 ] On January 21, 2020, Cst.

Julian Celms was advised that a body had been found at Manny’s. Various personnel including firefighters had been on scene. Recent snow had also obscured what lay among the charred debris. It had been very cold since the fire. Cst. Celms attended at the scene and observed the body. [ 11 ] On January 22, Cpl. Craig Glover with Forensic Identification Services attended at Manny’s. A severely burned body had been located in Unit 10. A coil of wire was wrapped around the lower part of the body’s legs. The body was transported to the Medical Examiner’s Office for autopsy. [ 12 ] Cst. Celms attended the autopsy.

He seized a wire from the left leg of the body, a wire wrapped around the body’s throat, and a sock that was in the body’s mouth. He testified that the wire around the body’s neck had been wrapped tightly, leaving grooves in the skin. The sock was rolled up, “cylinder-like.” C. The Autopsy [ 13 ] The autopsy was performed January 23 and reported on April 3, 2020. The autopsy report was prepared by Dr. Thambirajah Balachandra, Assistant Chief (now Chief) Medical Examiner. The body was identified as Mr. Desjarlais. Mr. Desjarlais’ body had been severely burned. Dr.

Balachandra wrote that (pp. 1-2) There were two sets of wires around the neck. One set was tight around the lower neck and appeared to be knotted at the back .... The second set of wires was loose around the upper neck .... On manipulating the tongue, a foreign body was found tightly placed inside the mouth ... the foreign body was found to be a sock .... The muscosa of the hard and soft palate was free of soot and debris and showed impressions of the sock .... .... A horizontal line, marking the tight metal wire around the lower neck was visible .... Dr.

Balachandra also noted metal wire loosely wound around the left leg (p. 4). [ 14 ] Microscopic examination disclosed black particles “present focally on the bronchial and tracheal mucosa and also in the parenchyma. These black particles are unlike that of soot deposits on the tracheal mucosa in those who inhaled smoke and soot” (p. 4). [ 15 ] Dr. Balachandra wrote the following respecting cause of death (p. 5): “Effects of Gagging and Ligature Strangulation.” Dr. Balachandra confirmed the cause of death in testimony but clarified that he could not definitively say that one or the other caused death.

This is why he referred to both as the cause of death. He could not delineate the causal effects of one from the other. [ 16 ] Dr. Balachandra testified that the sock obstructed Mr. Desjarlais’ airway. It would have prevented air from reaching the lungs. The sock alone could have caused death. However, Dr. Balachandra was unable to say whether the sock was placed in Mr. Desjarlais’ mouth pre- or post-mortem. [ 17 ] The tight wire around Mr. Desjarlais’ neck would have constricted his airway and the blood vessels in his neck. The wire alone could have caused death, but Dr.

Balachandra could not say with certainty that the wire caused death. Because of heat effects on Mr. Desjarlais’ body, he could not assess the pressure exerted by the wire. As with the sock, Dr. Balachandra was unable to say whether the wire was placed around Mr. Desjarlais’ neck pre- or post-mortem. Dr. Balachandra testified that the wire around Mr. Desjarlais’ neck was electrical wire. The outer coating had burned away exposing the metal wire. [ 18 ] Dr. Balachandra determined that Mr. Desjarlais died before his body burned. He did not observe soot particles in Mr. Desjarlais’ lungs or airways. Mr.

Desjarlais’ blood chemistry did not disclose evidence of pre-mortem carbon monoxide inhalation. [ 19 ] Dr. Balachandra could not say whether wire had been wrapped around Mr. Desjarlais’ right leg. His right leg had detached as a result of the fire. D. Identification of Fire Accelerants [ 20 ] Items seized from Manny’s and items that had been seized at the Wetaskiwin RCMP Detachment by Cst. Celms were sent to the RCMP Forensic Laboratory to be examined by Ms. Julie Barnett for the presence of an ignitable liquid or its residue that could act as a fire accelerant. The results of Ms.

Barnett’s investigations were inconclusive. Chemicals that might have been ignitable liquids were detected on some items, but these chemicals may have been naturally occurring in the items, deposited in the course of manufacture of the items, or deposited on the items by the exhibit bags containing the items. E. The Accuseds

[21] The circumstances of Mr. Desjarlais’ death and the fire at Manny’s suggested homicide and arson. RCMP investigations,including interviews with individuals connected with Manny’s and the events of January 14, 2020, led to the identification of theaccuseds and others as suspects. The accuseds were arrested, interviewed, and charged. II. Legal Principles and Statutory Provisions A. The Burden and Standard of Proof [22] A person charged with a criminal offence is presumed innocent. Our law requires that I take as a fact that Mr. Favel, Mr.Maygard-Olynyk, and Ms.

Omeasoo did not commit any offence and that fact remains unless, at the end of the case on all the evidence,the Crown proves beyond a reasonable doubt that one or more of them is guilty of an offence: R v Villaroman, 2016 SCC 33, CromwellJ at para 25; Woolmington v DPP, [1935] AC 462 (HL) at 481-482. That right is constitutionally confirmed by s 11(

d) of the Charter:“Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law ....” [23] The Crown has the burden of proving the guilt of Mr. Favel, Mr. Maygard-Olynyk, and Ms. Omeasoo. None of them has theburden of proving his or her innocence, no burden even to raise a reasonable doubt about innocence. None of them must prove anything. [24] Each of the accuseds had a constitutional right to remain silent in his trial, a right not to testify. Again, Mr. Favel and Mr.Maygard-Olynyk testified, and Ms. Omeasoo did not.

I cannot and do not draw any inference from Ms. Omeasoo’s exercise of thisconstitutional right.

See R v Symonds (1983), (ON CA), 9 CCC (3d) 225 (ON CA), Martin JA at 227 (“It isfundamental that a person charged with a criminal offence has the right to remain silent and a jury is not entitled to draw any inferenceagainst an accused because he chooses to exercise that right”); R v Chambers, [1990] 2 SCR 129, Cory J at 1316; R v Noble, (SCC), [1997] 1 SCR 874, Sopinka J at para 72 (“As Cory J. stated in Chambers, it would be a ‘snare and a delusion’ togrant the accused a right to remain silent at trial yet then proceed to use the silence to find him or her guilty”). [25] The Crown has the burden of proving not that it is merely possible that Mr.

Favel, Mr. Maygard-Olynyk, and Ms. Omeasooare guilty of the charged offences and not that it is merely probable or likely that one or more of them is guilty of an offence, but that oneor more of them committed an offence beyond a reasonable doubt. Before I can convict Mr. Favel, Mr. Maygard-Olynyk, or Ms.Omeasoo of an offence, I must be satisfied on all the evidence that there is no reasonable possibility that he or she is innocent of thatoffence, that the evidence does not support a reasonable inference that he or she is innocent of that offence.

However, proof beyond areasonable doubt is not proof beyond all doubt or any doubt. It is not a standard of absolute certainty.

Proof beyond a reasonable doubtexcludes or requires proof beyond all “reasonable” doubts about innocence, doubts that are not mere speculation, or imaginary orfrivolous, or based on sympathy or prejudice: R v Lifchus, (SCC), [1997] 3 SCR 320, Cory J at para 31. [26] An accused does not raise a reasonable doubt just because he or she denies responsibility in testimony: The Queen vProudlock, (SCC), [1979] 1 SCR 525, Pigeon J at 551. [27] Whether evidence exculpating an accused raises a reasonable doubt must be assessed in the context of the evidence as awhole: R v Ryon, 2019 ABCA 36, Martin JA at para 47; R v Morin, (SCC), [1988] 2 SCR 345, Sopinka J at 361-362; R vThomas, 2012 ONSC 6653, Code J at para 24. [28] The Crown is obligated to prove each element of the offence beyond a reasonable doubt.

Further, the reasonable doubtstandard applies to “vital issues.” See R v Randall, 2020 ABCA 52 at para 62. If credibility is an important issue in a case, thereasonable doubt standard must be applied to credibility: R v W(D), (SCC), [1991] 1 SCR 742, Cory J at 757. B. Statements [29] Each accused provided statements to the police. I found those statements to be voluntary and, in Ms. Omeasoo’s case, freefrom Charter violation. The Crown entered the statements as part of its case.

Each accused’s statements are admissible only in the caseconcerning the accused who made the statements, not the case concerning any co-accused. Both incriminatory elements and exculpatoryelements of statements are admissible. The statements are evidence both for and against the accused who made the statement. I am notbound to accept the truth of either the inculpatory or the exculpatory parts of the statement. An accused does not raise a reasonable doubtjust because he or she denies responsibility in a statement.

Rather, it is my duty to consider each part of a statement along with all theother evidence to assess its evidential value. See R v Applegarth, 2022 ABQB 243, Hillier J at para 69; R v Perkins, 2016 ONCA 588para 19; McWilliams’ Canadian Criminal Evidence, 5th Edition, S. Casey Hill, David M. Tanovich, Louis P. Strezos (edd), §§7:120,8:33; Sopinka, Lederman & Bryant: The Law of Evidence in Canada, S. N. Lederman, A. W. Bryant and Justice M. K. Fuerst (edd),§8.157. [30] The accuseds’ statements and the testimonies of Mr. Favel and Mr.

Maygard-Olynyk must be assessed in light of thepresumption of innocence and the Crown’s burden to prove each accused’s guilt beyond a reasonable doubt. In Ryon at para 51 and R vAchuil, 2019 ABCA 299 at para 18 (respecting (ii) below), Justice Martin helpfully recast the elements of the W(

D) assessment of thetotality of trial evidence under the reasonable doubt standard (with some qualifications omitted): [51] The charge [or a judge’s self-instruction] should impart the following information: …. (ii) ... if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if notbelieved still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit .... (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit.

(iv) Even if the jury completely rejects the accused’s evidence (or ... other exculpatory evidence), they may not simply assume theCrown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether thatevidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (or ... otherexculpatory evidence) cannot be taken as proof of the accused’s guilt. [31] I acknowledge that the primary evidence of each interview and each interaction constituting an accused’s statements were theaudio-visual or audio recordings. The recordings were played in Court and were made exhibits. Those recordings were the evidence Iconsidered. The transcripts were convenient representations of the recordings, facilitating judicial and counsel references tocommunications. The transcripts were, except in a very few minor instances, accurate.

There were no discrepancies between therecordings and the transcripts respecting significant issues. No issue was raised respecting what a speaker actually said at a particularpoint in an interview. That is, there were no arguments about competing accounts of recorded vocalizations. (That, of course, did notpreclude arguments about the meaning or

interpretation of words spoken.) No counsel argued that the transcripts were substantiallyinaccurate. There were no issues about the identity of speakers. My descriptions of communications in the statements follow what I heardin the recordings and may deviate, to small degrees, from what is recorded in the transcripts. See R v Rowbotham, , 41CCC (3d) 1 (ON CA) at paras 109-117 . C. Witnesses 1. Witnesses Generally [32] I have kept in mind that all, some, or none of the evidence of any witness may be accepted: R v JHS, 2008 SCC 30, Binnie Jat para 10.

That observation applies respecting the statements made by the accuseds and the testimonies of Mr. Favel and Mr. Maygard-Olynyk. [33] When assessing a witness’s credibility, two considerations are involved.

On the one hand, I must consider a witness’ssincerity, or commitment to tell the truth; on the other, the witness’s reliability or accuracy: R v Morrissey, , 97 CCC(3d) 193 (ON CA), Doherty JA at 205. [34] Reliability may be impaired, for example, by heavy drinking or drug use before, around the time of, or after events.Intoxication might affect abilities to observe and to form memories, the maintenance of accurate memories, and the duration of retentionof accurate memories. [35] In this case, for example, the heavy drug use by the witnesses Jessica Morton and Nate Osha undermined the reliability oftheir testimony. [36] I should observe, however, that the effects of drug use should neither be assumed nor exaggerated.

While drug use maycertainly affect the formation, maintenance, and recollection of memories, even heavy drug use does not necessarily preclude providingsome reliable evidence. Drug users may be very experienced in their drug use and may have built up tolerance to drug effects. Whileconsuming drugs, users are not necessarily automatons. They are not walking into walls, forgetting to eat, or passing up opportunities toact in their self-interest.

As with other witnesses, all, some, or none of a heavy drug user’s evidence may be accepted. [37] As for sincerity or credibility as distinguished from reliability, special testimonial scrutiny and a special jury or self-cautioncaution are required for what are known as Vetrovec witnesses: Vetrovec v The Queen, (SCC), [1982] 1 SCR 811,Dickson J, as he then was, at 823. 2. Vetrovec Witnesses (

a) Identifying Vetrovec Witnesses [38] The identification of a witness warranting special caution depends on whether the evidence supports the finding that there arereasons to suspect the witness’s credibility. “Factors might include involvement in criminal activities, a motive to lie by reason ofconnection to the crime or to the authorities, unexplained delay in coming forward with the story, providing different accounts on otheroccasions, lies told under oath:” R v Khela, 2009 SCC 4 at para 35, Fish J, quoting Rosenberg JA (a pre-appointment article).

Witnesseswho are burdened by such factors may have motivations not to provide reliable testimony. [39] Jessica Morton could be regarded as a Vetrovec witness, from the standpoint of Mr. Favel and Ms. Omeasoo. At the time ofthe events in question, she was in an intimate relationship with Mr. Maygard-Olynyk. She admitted providing false information about theevents to the police. Shane Potts was a Vetrovec witness. He played a role in the events in question to the extent that in separateproceedings he pleaded guilty to being an accessory after the fact to murder. He admitted taking two bags from Mr.

Desjarlais’ premises,but there were suggestions in the evidence that he played a greater role in the death of Mr. Desjarlais and in starting the fire thanadmitted in his testimony. (

b) Corroboration [40] It is dangerous to convict on the unconfirmed evidence of a Vetrove witness, although a trier of fact may do so if satisfied thatthe witness’s evidence is true. In assessing the weight of the claims made by this sort of witness, a trier of fact should look forindependent evidence tending to show that the witness is telling the truth: Khela at para 37. “Independent” evidence is from a sourceother than the witness.

One Vetrovec witness may corroborate another (if the corroborative evidence is accepted), but “extreme caution”must be taken if there is evidence of collusion between purportedly corroborative Vetrovec witnesses. The risk of collusion does not byitself preclude corroborative effect. The trier of fact must decide whether the evidence of one witness “restores the trier’s confidence” inthe evidence of the other: see R v Lawrence, 2020 ABCA 268 at paras 31-32; R v Hornby, 2018 ABCA 377 para 23.

[41] The independent evidence need not directly implicate an accused in an offence or directly support the accused’s exculpatoryaccount of events.

The independent evidence, though, must be “capable of restoring ... faith in the relevant aspects” of the Vetrovecwitness’s account – it must be “capable of assuring the trier of fact that it is safe to rely upon the word of a disreputable witness:” R vMacIsaac, 2017 ONCA 172, Trotter JA at paras 38, 44. [42] Justice Dickson referred to corroborative evidence as supporting a tainted witness’s account relating to a “vital issue” orrelating to a “material particular,” rendering the witness’s testimony “credible as a whole:” Vetrovec at 827.

If the witness is right aboutthis, then the witness is right about that. (c) “Mixed Witnesses” [43] I have kept in mind Justice Martin’s cautions respecting a “mixed witness,” an unsavory witness called by the Crown whoprovides testimony that both inculpates and exculpates an accused, at para 25 of R v Ryan, 2014 ABCA 85 (Ryan (ACA)): [25] The situation is slightly more complicated where a Crown witness offers testimony which both implicates and exculpates theaccused, commonly referred to as a “mixed witness”.

If in regard to such a witness’s evidence the court decides that a Vetrovec-typecaution is appropriate, care should be taken to ensure that the jury understands that the caution applies to the incriminating portions ofthat unsavoury witness’s testimony, that it does not usually apply to the exculpatory portions of the witness’s testimony, and that it issufficient if the uncorroborated or unconfirmed exculpatory testimony raises a reasonable doubt as to the guilt of the accused ....[emphasis added] See also R v Vassel, 2018 ONCA 721, Watt JA at para 156. (

d) Accuseds as Witnesses [44] Ms. Omeasoo did not testify. Mr. Favel testified but called no other witnesses. Mr. Maygard-Olynyk testified but called noother witnesses. The testimony of each has two distinct aspects. See Ryan (ACA) at para 24 and R v Whiskeyjack, 2022 ABCA 76 atparas 10 and paras 12-13: [12] ....

The applicable caution, often referred to as an Oliver caution, is designed to protect the fair trial rights of the co-accused.When appropriate, it requires an instruction telling the jury that the accused’s testimony incriminating a co-accused should be treatedwith caution in considering the case against the co-accused.

But when that instruction is given, the jury should also be told that thecaution does not apply to the case against the accused who gave that testimony: R v Oliver (2005), (ON CA), 194OAC 284 paras 57-60, 194 CCC (3d) 92. [13] As explained by Doherty JA in Oliver: The need to balance the fair trial rights of co-accused is a case specific exercise. Morrison’s right to a fair trial included his right to havehis testimony as it applied to him considered free of any suggestion that it was inherently suspect because of Morrison’s status as anaccused.

Oliver’s right to a fair trial included his right to have factors that could undermine the credibility of evidence implicating himbrought to the attention of the jury: at para 56. [45] When considering the case against Mr. Favel, Mr. Favel’s testimony should not be assessed with caution or with specialscrutiny under a Vetrovec warning. When considering the case against Mr. Maygard-Olynyk, Mr. Maygard-Olynyk’s testimony shouldnot be assessed with caution or with special scrutiny under a Vetrovec warning.

When considering the case against each of them, theirown evidence is assessed according to W(D). [46] When considering the case against Mr. Maygard-Olynyk and Ms. Omeasoo, Mr. Favel’s testimony should be assessed withcaution. When considering the case against Mr. Favel and Ms. Omeasoo, Mr. Maygard-Olynyk’s testimony should be assessed withcaution. D. The Offences 1. Second-Degree Murder (

a) Statutory Provisions [47] The relevant statutory provisions are as follows: 222

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

(2) Homicide is culpable or not culpable ….

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

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

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

(

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

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not …. 231(1) Murder is first degree murder or second-degree murder ….

(7) All murder that is not first-degree murder is second degree murder. (

b) Elements of the Offence [48] Conviction for second-degree murder requires that the Crown prove, beyond a reasonable doubt, that • the offence occurred on or about January 14, 2020; • the offence occurred at or near Wetaskiwin, Alberta; • the accused (and not another) is the person who committed the offence; • the accused committed an unlawful act; • the unlawful act committed by the accused caused Mr. Desjarlais’ death; • the accused had the intent required for murder. [49] In this case, date and jurisdiction are not at issue.

As regards each accused, the Crown has established that the offenceoccurred on or about January 14, 2020 and the offence occurred in Wetaskiwin, Alberta. [50] In this case, the “unlawful act” was the assault of Mr. Desjarlais, the non-consensual application of force to him. See ss265(1)(

a) and 267(

c) of the Criminal Code. The specific mode of assault was choking or strangulation and the physical restraint of Mr.Desjarlais. I will provide more detail below. (

c) Causation [51] The accused’s unlawful act must have “caused” Mr. Desjarlais’ death. “Cause” means that the accused was a significantcontributing cause of the victim’s death. See R v Nette, 2001 SCC 78, Arbour J at paras 71-72: 71 The causation standard expressed in Smithers is still valid and applicable to all forms of homicide .... The only potentialshortcoming with the Smithers test is not in its substance, but in its articulation ....

In order to explain the standard as clearly as possible tothe jury, it may be preferable to phrase the standard of causation in positive terms using a phrase such as “significant contributing cause”rather than using expressions phrased in the negative such as “not a trivial cause” or “not insignificant” .... Latin terms such as “deminimis” are rarely helpful. 72 ....

To the extent that trial judges may find it more useful to express the standard of causation in Smithers in a more direct andaffirmative fashion, they may find it preferable to express the standard positively as a “significant contributing cause”, to use theterminology of Lambert J.A. in the present appeal. [52] In R v Sundman, 2022 SCC 31, Justice Jamal explained at para 33 that [33] .... Causation in homicide cases has two aspects: factual causation and legal causation.

Factual causation asks how the victimdied and the role of the accused in effecting that result - whether the victim’s death would have occurred “but for” the actions of theaccused. When factual causation is established, legal causation asks whether the accused should be held responsible for the victim’sdeath, based on principles of moral responsibility in criminal law (Nette, at paras. 44-45; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R.30, at paras. 15-16) ....

See R v Harkes, 2021 ABCA 315 at paras 42, 44. [53] In this case, there is an issue as to whether the causal responsibility of the three accused’s was broken (i.e., whether their actsceased to be “contributing causes” to Mr. Desjarlais’ death). I’ll return to the “intervening act” issue below, following the discussion ofduress. (

d) Intention [54] Conviction for second-degree murder requires the Crown to prove, beyond a reasonable doubt, that in committing the conductthat led to the victim’s death, the accused had subjective foresight of the victim’s death. The Crown may prove that an accused intendedor meant to cause a victim’s death or that the accused intended to cause bodily harm that the accused knew was likely to cause (or wouldprobably cause) the victim’s death and the accused was reckless (advertently indifferent) to whether death ensued or not. See R vMartineau, (SCC), [1990] 2 SCR 633 at 646; R v Moo, 2009 ONCA 645, Watt JA at paras 45-46; R v Sylvester, 2020ABQB 27, Yamauchi J at para 26.

[55] As evidence supporting proof of the subjective state for murder, the Crown may rely on the common sense inference thatpersons may be found to have intended the probable consequences of their acts.

In R v Seymour, (SCC), [1996] 2 SCR252, Justice Cory described the “common sense inference” at paras 19 and 20: 19 When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, indetermining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and soberpersons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee theconsequences of their actions.

Therefore, if a person acts in a manner which is likely to produce a certain result it generally will bereasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to producecertain predictable consequences, it may be inferred that the person intended those consequences. 20 It used to be a standard instruction to juries that there was a presumption that a person intends the natural and probableconsequences of his or her acts. However, the Ontario Court of Appeal wisely held in R. v.

Giannotti (1956), (ON CA),115 C.C.C. 203, that, rather than a presumption, it should be considered a reasonable inference which may be drawn but is not required tobe drawn by juries. This reasoning was subsequently affirmed in Mulligan v. The Queen, (SCC), [1977] 1 S.C.R. 612. See R v Buzzanga and Durocher, , 49 CCC (2d) 369 (ON CA), Martin JA at at 26 ; R v MacKinlay, , 1986 CarswellOnt 124, 28 CCC (3d) 306 (ON CA), Martin JA at para 30(CarswellOnt). [56] Evidence of intoxication should be considered when assessing whether an accused intended the natural and probableconsequences of his or her actions.

In MacKinlay, Justice Martin wrote as follows at para 46(CarswellOnt): The state of mind required under s 212(a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of hisact: McAskill v. The King, [ (SCC), [1931] S.C.R. 330, at p. 334].

Where the Crown on a charge of murder relies on theintent under s 212(a)(ii) of the Code, it would be helpful to remind the jury that the state of mind required by this subsection involves aknowledge by the accused of the “likely” consequences of his act and the jury should consider the effect of intoxication along with theother facts in deciding whether the accused intended to inflict an injury on the victim which he knew was likely to cause death orwhether intoxication affected his ability to foresee the consequences of his actions. [Emphasis deleted.] [57] In R v Daley, 2007 SCC 53, Justice Bastarache confirmed at para 53 that “the main determination in cases involving adefence of intoxication to a second-degree murder charge will be whether the accused’s degree of intoxication affected this ability [toforesee the consequences of his action].” 2.

Arson (

a) Statutory Provision [58] The Crown proceeded under s 433(

a) of the Criminal Code, which provides as follows: 433 Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns theproperty, 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 .... (

b) Elements of the Offence [59] To convict an accused for the arson offence, the Crown must prove, beyond a reasonable doubt, that • the offence occurred at or near Wetaskiwin, Alberta • the offence occurred on or about January 14, 2020 • the accused is the person or one of the persons who committed the offence • the accused caused damage to Manny’s Motel, situated at 4705 56 Street, Wetaskiwin, by fire • the accused intentionally or recklessly caused the damage by fire • the accused knew that the property was inhabited or occupied. [60] In this case, date and jurisdiction are not at issue.

As regards each accused, the Crown has established that the offenceoccurred on or about January 14, 2020 and the offence occurred in Wetaskiwin, Alberta. Damage was caused by fire. The propertyburned was Manny’s Motel. (

c) Intention and Knowledge [61] This is a subjective liability offence. The Crown must establish actual intention to cause damage by fire or recklessness in thesense of actual advertence to or awareness of the risk of damage and continuing with the conduct regardless of that advertence orawareness. [62] Manny’s Motel had guests in addition to Mr. Desjarlais. Whoever set fire to the Motel knew that it was inhabited or occupied.Mr. Favel and Mr. Maygard-Olynyk were familiar with Manny’s. Both had lived there.

E. Routes to Criminal Responsibility [63] The Crown could establish the criminal responsibility of an accused for the murder and arson offences in three ways. 1. The Accused Actually Committed the Offence [64] The Crown could establish, beyond a reasonable doubt, that one or more of the accuseds actually committed an offence: see s21(1)(

a) of the Criminal Code. 2. Secondary Liability [65] The Crown could establish criminal responsibility by proving beyond a reasonable doubt that an accused aided or abetted inthe commission of an offence. Section 21(1) of the Criminal Code provides that 21(1) Every one is a party to an offence who ... (

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. (

a) Aiding [66] “Aiding” requires proof that the person did “anything” that aided another to commit an offence. The person must haveprovided assistance or help “for the purpose of aiding” the other person to commit the offence: R v Briscoe, 2010 SCC 13, Charron J atpara 14; R v Vu, 2012 SCC 40, Moldaver J at para 58. No statutory or common law duty supporting aiding by omission was supportedby the evidence in this case. [67] 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. [68] 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. [69] 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. (

b) Abetting [70] “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.” [71] 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), Moir JA at para 23 , leave to appeal to SCC refd (1978), 38 CCC(2d) 151n. (

c) Aiding and Abetting [72] In R v Ouellette, 2022 ABCA 40 at paras 136-138, the Court of Appeal elaborated on the nature of the actus reus of abettingor abetting: [136] ... conduct constituting aiding or abetting is “coloured by the mental state accompanying the act”, meaning the conduct must havebeen for the purpose of aiding or abetting: R v Dooley, 2009 ONCA 910 at para 118, leave to appeal to SCC refused(SCC). [137] There does not need to be a causal connection between the conduct of aiding or abetting and the commission of an offence, solong as the conduct in some way “furthers, facilitates, promotes, assists or encourages” the principal or is “conduct that ‘has the effect’of aiding or abetting”: Dooley at paras 121, 123.

As such, there must be some factual nexus between the conduct and the offence, but itdoes not need to be causative.

3. No Requirement for Identification of Principal Offender [73] 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. [74] 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. F. Duress 1. Basic Features of Duress [75] The Crown may succeed in establishing that an accused committed all the elements of an offence beyond a reasonable doubt,but the accused may, by pointing to the legal effects of additional evidence, secure an acquittal, as through the defence of duress.

See R vRuzic, 2001 SCC 24, LeBel J at para 60: “the defence of duress does not negate either the mens rea or the actus reus of the crime.” [76] Our criminal law recognizes a defence – technically, an extrinsic excuse – of duress: see Perka v The Queen, (SCC), [1984] 2 SCR 232, Dickson J, as he then was, at 246-250, 259; R v Ryan, 2013 SCC 3, LeBel and Cromwell JJ at para 23; R vAravena, 2015 ONCA 250, Doherty and Pardu JJA, leave app dismissed (SCC) at paras 27, 63-64; R v Willis(TAW), 2016 MBCA 113, Mainella JA at para 27. A person acts under duress when compelled by another to commit an offence.

Thedefence rests on the notion of “moral involuntariness.” An accused should not be convicted of an offence if the accused had no realchoice not to commit the offence. Justice LeBel wrote as follows in Ruzic at para 47: [47] .... It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlledbody, unhindered by external constraints – should attract the penalty and stigma of criminal liability.

Depriving a person of liberty andbranding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have anyrealistic choice .... [77] If on the evidence there is at least a reasonable doubt that all the elements of the defence of duress are supported, an accusedis entitled to an acquittal. [78] An accused does not bear the burden of proving that the defence is made out.

Rather, if the defence may have a foundation onthe evidence, if the accused can point to evidence sufficient to raise the issue of the availability of the defence, the Crown bears theburden of establishing that the defence is not available on the evidence: Perka at 257, 259. [79] The defence of duress has taken two forms. The first form of the defence is statutory, as set out in s 17 of the Criminal Codebut judicially amended to comply with Charter strictures. The statutory form of duress applies to principal offenders, parties in the “firstdegree,” to whom s 21(1)(

a) of the Criminal Code applies. The second form of the defence is defined by common law. The common lawdefence applies to parties who are “secondarily liable,” to whom ss 21(1)(

b) or (

c) or 21(2) of the Criminal Code apply. See Ryan atpara 83; R v Paquette, , [1977] 2 SCR 189, Martland J at 193-197; Aravena at para 24; Willis at para 25. [80] The two forms of the defence have elements that are nearly identical: Aravena at para 25; Willis at para 25. [81] One difference between the two forms of duress is that the statutory form excludes the availability of the defence for a list ofoffences, including murder. The common law defence extends to murder: Paquette at 195-197; Aravena at paras 30-31, 37-39.

TheAlberta Court of Appeal has endorsed this extension: Curran at paras 11-12. [82] The Supreme Court has raised the issue of whether excluding murder from the excusing scope of the statutory defenceviolates the Charter, and the complementary issue of whether including murder within the excusing scope of the common law defencelacks legal support: Ryan at para 84 (“We accordingly leave to another day the questions of the status of the statutory exclusions andwhat, if any, exclusions apply at common law”); see Aravena at para 41. I’ll return to the issue of murder below. 2.

Elements of the Defence of Duress [83] The common elements of the defence of duress are as follows, as described by the Supreme Court in Ryan at para 81: [81] The defence of duress, in its statutory and common law forms, is largely the same. The two forms share the following commonelements: • There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or athird party. • The accused must reasonably believe that the threat will be carried out.

• There is no safe avenue of escape. This element is evaluated on a modified objective standard. • [There is a] close temporal connection between the threat and the harm threatened. • There is proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused mustbe equal to or no greater than the harm threatened.

This is also evaluated on a modified objective standard. • The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew thatthreats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association. See Aravena at para 26. I’ll provide some elaboration respecting the “modified objective standard,” the “party to a conspiracy orassociation” exclusion, and offences included and excluded from the scope of the defence. 3.

The Modified Objective Standard [84] The “safe avenue of escape” and “proportionality” factors are evaluated on “modified objective standard of the reasonableperson similarly situated:” Ryan at paras 47, 53. We read the following in Ryan at para 52: [52] …. Citing R. v. Howe, [1987] A.C. 417 (H.L.), at p. 426, Baker agrees that “[t]he threat ‘must involve a threat of such a degree ofviolence that “a person of reasonable firmness” with the characteristics and in the situation of the defendant could not have been expectedto resist’” (para. 25-015).

At para 53 of Ryan: “‘The accused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat”(Ruzic, at para. 62).’” And at para 54 of Ryan: “only an action based on a proportionally grave threat, resisted with normal fortitude, canbe considered morally involuntary.” [85] In explaining the common law defence of duress, the Court indicates that the “reasonable belief that the threat will be carriedout” is also evaluated on a modified objective standard: Ryan at para 64. [86] To maintain consistency with self-defence and provocation, whether the accused perceived a threat should be evaluated on thebasis of honest and reasonable belief, with the reasonableness of the belief also assessed on a modified objective standard. [87] What “modifications” to the objective standard does the Court contemplate?

The evaluation is to take into account the particular circumstances where the accused found himself and his ability to perceive a reasonable alternative to committing a crime,with an awareness of his background and essential characteristics: Ryan at para 65, quoting Ruzic at para 61.

The evaluation is to be from the perspective of a reasonable person in the same situation as the accused and with the same personal characteristics and experience would conclude thatthere was no safe avenue of escape or legal alternative to committing the offence: Ryan at para 65. [88] Para 61 of Ruzic directs us to R v Latimer, 2001 SCC 1, commencing at para 26. We read the following at para 33 ofLatimer: [33] .... We would add that it is appropriate, in evaluating the accused’s conduct, to take into account personal characteristics thatlegitimately affect what may be expected of that person.

The approach taken in R. v. Hibbert … is instructive. Speaking for the Court,Lamer C.J. held, at para 59, that it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or herability to perceive the existence of alternative courses of action. While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused,those perceptions remain relevant only so long as they are reasonable.

The accused person must, at the time of the act, honestly believe,on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be areasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affectthe accused person’s ability to evaluate his situation.

The test cannot be a subjective one, and the accused who argues that he perceivedimminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given hiscircumstances and attributes .... [89] Latimer, in turn, relied on Hibbert.

At para 60 of Hibbert, Chief Justice Lamer stated that “the appropriate objective standardto be employed is one that takes into account the particular circumstances and human frailties of the accused.” Chief Justice Lamerdistinguished the objective standard applicable to negligence offences set in R v Creighton, (SCC), [1993] 3 SCR 3from the objective standard applicable to “excuse-based defences, such as duress.” The Chief Justice stated at para 61 of Hibbert thatthese defences are predicated precisely on the view that the conduct of the accused is involuntary, in a normative sense - that is, that he or she had norealistic alternative course of action available.

In my view, in determining whether an accused person was operating under suchconstrained options, his or her perceptions of the surrounding facts can be highly relevant to the determination of whether his or herconduct was reasonable under the circumstances, and thus whether his or her conduct is properly excusable. [90] In Creighton, Chief Justice Lamer wrote as follows at 29-30: I shall now turn to elaborating what “human frailties” may factor into the objective test. It is perhaps best to begin by stating clearly

what is not included. Intoxication or impairment through drug use which occurs as a result of voluntary consumption cannot serve tovitiate liability for the risks created by the negligent conduct of an accused. Later on p. 30 the Chief Justice stated Human frailties encompass personal characteristics habitually affecting an accused's awareness of the circumstances which create risk. Such characteristics must be relevant to the ability to perceive the particular risk.

For example, while illiteracy may excuse the failure totake care with a hazardous substance identifiable only by a label, as the accused may be unable, in this case, to apprehend the relevantfacts, illiteracy may not be relevant to the failure to take care with a firearm. 4.

Party to a Conspiracy or Association [91] The “party to a conspiracy or association” exclusion from the defence was explained at para 77 of Ryan: [77] .... courts must take into account the accused’s voluntary assumption of risk, a natural corollary of the unavailability of thedefence of duress to those who wilfully engage in criminal conspiracies or organizations. This is consistent with the principle of moralinvoluntariness.

An accused that, because of his or her criminal involvement, knew coercion or threats were a possibility cannot claimthat there was no safe avenue of escape, nor can he or she truly be found to have committed the resulting offence in a morally involuntarymanner. The Court of Appeal wrote as follows in Aravena at para 113: [113] The principle of moral involuntariness is given full effect by a criminal association exception that forecloses the duress defence ifan accused voluntarily enters into a criminal organization knowing there is a risk he may be compelled by threat of bodily harm or deathto commit a crime.

The voluntary assumption of that risk provides the choice necessary to justify criminal conviction and punishment.The criminal association exception properly focuses the inquiry on whether an accused willingly chose to subject himself to the risk hewould be coerced into committing a crime.

Not only is that focus consistent with the principle of moral voluntariness, it also furtherslegitimate policy concerns which demand strict limitations on the availability of the defence, especially in the context of crimescommitted for or on behalf of criminal organizations. [92] At para 108, the Court of Appeal clarified that the organizational compulsion need only relate to the commission of a crime,not the specific offence committed: [108] The appellant’s submission that an accused must know the criminal organization might compel her to commit the crime chargedfinds no support in the Canadian authorities.

The Canadian cases focus on the accused’s willing assumption of the risk she might becoerced into committing a crime, and not on the specific criminal activity either foreseen or eventually committed as a result of thatcoercion. This approach is consistent with the voluntary assumption of risk rationale for the exception: see Ryan, at paras. 75-77; Ruzic,at para. 70; R. v. Li (2002), (ON CA), 162 C.C.C. (3d) 360 (Ont. C.A.), at paras. 20-33. [emphasis added] 5. Manslaughter [93] Manslaughter is not listed as an excluded offence in s 17 of the Criminal Code.

The common law defence extends to murder,a more serious offence. As regards murder, manslaughter is a lesser included offence. Hence, the statutory and common law defence ofduress is available for the offence of manslaughter. 6.

Murder [94] The conclusion in Aravena respecting the availability of the defence of duress for the offence of murder is set out at paras 85-86: [85] The common law defence of duress has been available to persons charged as parties to murder in Ontario for at least 35 years.We would hold that the defence as strictly defined in the recent Supreme Court jurisprudence remains available to persons charged asparties to murder.

In our view, that holding is consistent with the nature of the duress defence, basic criminal law policies, and theoperative principles of fundamental justice. [86] The constitutionality of the murder exception to the duress defence in s 17 of the Criminal Code is not before the court.However, it follows from this analysis that, subject to any argument the Crown might advance justifying the exception as it applies toperpetrators under s 1 of the Charter, the exception must be found unconstitutional. [95] Those conclusions were not accepted by the Manitoba Court of Appeal in Willis.

See para 155: [155] Despite the detailed and thoughtful reasons of the Court of Appeal in Aravena, I decline to follow its approach, both to thequestion of proportionality in terms of moral involuntariness, as well as its obiter comment that the statutory exclusion of the defence ofduress to the offence of murder in

section 17 of the Code infringes

section 7 of the Charter, absent justification under

section 1 of theCharter. It is my respectful view that Aravena does not provide assistance to this Court in deciding the correctness of the trial judge’sconclusion that murdering an innocent person can never satisfy the proportionality requirement of moral involuntariness. [96] I was invited to decide whether to follow Aravena or Willis. I decline the invitation, for three reasons. [97] First, I am bound by the decisions in Paquette and Curran that extend the common law defence to murder for non-perpetrators.

It is true that the Lynch decision referred to by Justice Martland in Paquette has been overturned in the United Kingdom.However, Lynch was not binding on the Supreme Court. It was a House of Lords decision (and not a Privy Council decision, andregardless, the last appeal to the Privy Council was made 20 years before Paquette). Justice Martland agreed with the conclusion

reached by the Lynch majority (at 196). The conclusion was his, not the House of Lord’s. No argument was advanced before me that if aforeign decision referred to in a Supreme Court decision is overturned, I am freed from the binding force of the Supreme Court decision.I was directed to no authority supporting this exemption from vertical stare decisis.

See, e.g., R v Comeau, 2018 SCC 15 at paras 26-34. [98] In this regard, I note that the Supreme Court has not stated that Paquette is wrong on the extension of the defence to murder.See Willis at para 30 (“The Court has not resiled from that position in subsequent cases from Hibbert through to Ryan”). [99] Second, as will be seen, the evidence against the accuseds does not support criminal responsibility as perpetrators under s21(1)(a). [100] Third, as in my view Justice Mainella’s decision in Willis demonstrates, the question of the scope of the defence of duressinvolves very large moral and legal questions about our criminal law.

A sound approach to those questions (as illustrated in cases likePerka) requires proportionately thorough and extensive argument, written submissions, and filed materials. We lacked these. III. Questions [101] I must answer the following questions: • Was ligature strangulation or the manual choking of Mr. Desjarlais a cause of Mr. Dersjarlais’ death? • Must the accuseds be acquitted of any homicide offence because of the intervening act of the individual who stuffed the sockdown Mr. Desjarlais’ throat? • As regards each of Ms. Omeasoo, Mr. Maygard-Olynyk, and Mr.

Favel, o What evidence is admissible against the accused and what evidence do I accept? o Has the Crown established, beyond a reasonable doubt, that the accused committed or was a party to the commission of second-degree murder? o Has the Crown established, beyond a reasonable doubt, that the accused (not including Ms. Omeasoo) committed or was a party to thecommission of the arson offence? o Has the Crown established, beyond a reasonable doubt, that the defence of duress was not available on the evidence as regards thesecond-degree murder or arson offences? IV.

Choking and Ligature Strangulation as Causes ofDeath [102] To be guilty of a culpable homicide offence, the Crown must prove beyond a reasonable doubt that the accused caused or wasresponsible for causing the death of a human being, Mr. Desjarlais. [103] In this case, Dr. Balachandra identified the cause of death in this way: “Effects of Gagging and Ligature Strangulation.” Thegagging would have been induced by the sock pushed into Mr. Desjarlais’ throat. Dr.

Balachandra did not address manual choking as acause of death. [104] Two initial questions are whether manual choking or ligature strangulation, independently of the placement of the sock, weresignificant contributing causes of death: Nette at para 72; Harkes at para 78. A.

Determination of Cause of Death by the Trier of Fact [105] By way of orientation to these questions, I refer to Harkes at para 79: [79] As observed in R v Chief, 2019 MBCA 59 at paras 16 to 17 respecting expert evidence and causation: Causation is to be decided on an assessment of all relevant evidence; the trier of fact is not constricted by the expert evidence so long asthe causation finding is reasonably available on the evidence and not based on speculation (see R v Pimentel, 2000 MBCA 35 at paras63-67, leave to appeal to SCC refused, 2000 CarswellMan 575).

The judge was not limited by the understandable reticence of the two medical experts to speak in “absolute terms” as to what degree eachviolent act of T and the accused played in causing death (Smithers v The Queen, (SCC), [1978] 1 SCR 506 at 515, 518).There may be a number of contributing causes of death (see Maybin at para 14). Additionally, factual causation is not limited to thedirect and immediate cause or the most significant cause (see Maybin at para 20).

As Watt JA put it in R v Manasseri, 2016 ONCA 703,leave to appeal to SCC refused, 37322 (13 April 2017) (at para 193): “Expert medical opinion evidence is admissible to establish factualcause. But the work of the expert is purely diagnostic. We do not require medical witnesses, however eminent, to distinguish betweencauses and conditions, or to rank causes as to their relative significance of contribution to death”. [106] I refer as well to the Ontario Court of Appeal’s decision in R v Pocock, 2015 ONCA 212 at para 15: [15] A jury must consider all of the evidence that is relevant to any particular issue.

Proof of causation in homicide cases will often

involve expert medical opinion testimony and, in some instances, will turn entirely on that evidence. However, in many cases, the jurywill have additional non-medical evidence to consider in determining causation: see R. v. Smithers, (SCC), [1978] 1S.C.R. 506, at pp. 515-519. B. Dr. Balachandra’s Opinion respecting Ligature Strangulation [107] Dr. Balachandra wrote that (pp. 1-2) There were two sets of wires around the neck. One set was tight around the lower neck and appeared to be knotted at the back .... Thesecond set of wires was loose around the upper neck .... ....

A horizontal line, marking the tight metal wire around the lower neck was visible .... [108] Dr. Balachandra confirmed the cause of death in testimony but clarified that he could not definitively say that gagging orligature strangulation caused death. C. Assessment 1. Manual Choking [109] On the evidence of each accused, Mr. Desjarlais was manually strangled or choked by an arm wrapped around his neck frombehind. [110] An arm around the throat may constrict the victim’s airway or constrict the blood vessels in the victim’s neck or both.

Deathwould follow from the interference with breathing or the interference with blood flowing to and from the victim’s brain. It is well-knownthat death by blood vessel compression may occur if compression persists over minutes. See, e.g., R v Tallcree, 2023 ABKB 211 at para147. [111] In my opinion, as will be discussed below, evidence supports the finding, beyond a reasonable doubt, that the manual chokingalone caused Mr. Desjarlais’ death. He was dead before any ligature was put around his throat. If Mr.

Desjarlais remained alive after thechoke ceased to be applied, the manual choking remained a significant contributing cause of death. [112] I note that Dr. Balanchandra could not say whether the ligature or the sock had been placed prior to Mr. Desjarlais’ death. 2. Ligature Strangulation [113] The evidence will also show that after the attack by the manual choke, the perpetrator wrapped a ligature, on one account anelectrical cord, around Mr. Desjarlais’ throat. [114] In my opinion, if the manual choke did not kill Mr.

Desjarlais, this ligature strangulation was an independent cause of Mr.Desjarlais’ death. [115] Mr. Maygard-Olynyk described the cord as being wrapped around Mr. Desjarlais’ throat and knotted. A horizontal line markingthe indentation in the neck caused by the wire was visible. To kill Mr. Desjarlais, the cord need not have been tight enough to constrictMr. Desjarlais’ airway. The cord need only have constricted the blood vessels in Mr. Desjarlais’ neck, preventing blood from flowing toand from his brain.

A slender non-elastic ligature like an electrical cord could, when tightened and knotted, impose and maintainsignificant pressure on neck tissues. [116] Ligature strangulation was, by itself, a significant contributing cause of Mr. Desjarlais’ death. V. Blockage of Airway as an Intervening Act [117] Very generally, the theory advanced by the Crown respecting each accused respecting the second-degree murder count was asfollows: • the perpetrator manually choked and strangled Mr. Desjarlais; • the accused, for the purpose of aiding the perpetrator in his homicidal attack on Mr. Desjarlais, restrained Mr.

Desjarlais andbound his legs (all three accuseds) and for the purpose of promoting the perpetrator’s actions, abetted the perpetrator by words ofencouragement (Mr. Favel); • as result of the actions of the perpetrator and the accused Mr. Desjarlais was killed. This theory runs into a problem. A sock was plunged into Mr. Desjarlais’ throat blocking his airway. In Dr. Balanchandra’s opinion, thisalone could have caused Mr. Desjarlais’ death. Two issues emerge.

First, on the evidence, can the responsible party be identified?Second, did the blockage of the airway by the sock amount to an intervening act breaking the chain of causation linked to the accusedsand preventing them from being responsible for a homicide offence? A. Responsibility for Blocking Mr. Desjarlais’ Airway

[ 118 ] Someone stuffed the sock down Mr. Desjarlais’ throat. The first question is, Who? 1. Admissions [ 119 ] None of the accuseds admitted putting the sock in Mr. Desjarlais’ mouth or even to having known about the sock. 2. Mr. Potts’ Testimony [ 120 ] Mr. Potts was mentioned in Mr. Favel’s statement to police and in Ms. Omeasoo’s statement. Mr. Maygard-Olynyk referred to Mr. Potts in his statement. None of these statements are evidence against Mr. Potts. [ 121 ] Mr. Potts testified. He acknowledged pleading guilty to being an accessory after the fact to murder. He admitted only to having come up to Mr.

Desjarlais’ unit at someone’s request. He “grabbed two bags” and left. [ 122 ] He said nothing about a body, let alone about a sock and a body, and nothing about a fire, except that he saw the fire after he’d gone back to a friend’s place. 3. Mr. Favel’s Testimony [ 123 ] Mr. Favel’s testimony was that he had left Mr. Desjarlais’ unit when Mr. Desjarlais was still alive, before the events in question took place. He therefore shed no light on any post-manual choking conduct by Mr. Potts or anyone else. He did mention that he didn’t think he saw Mr. Potts that whole day.

Later he said that he had no idea whether Mr. Potts was in the unit at the material time. 4. Mr. Maygard-Olynyk’s Testimony [ 124 ] Mr. Maygard-Olynyk testified that Mr. Potts showed up after Mr. Favel had choked Mr. Desjarlais to unconsciousness then wrapped an extension cord around Mr. Desjarlais’ throat. (He confirmed Mr. Potts’ presence in cross-examination.) Mr. Maygard- Olynyk described Mr. Potts and Ms. Omeasoo as participating in burning (or at least making preparations for burning) Mr. Desjarlais’ body. Mr. Maygard-Olynyk referred to Mr.

Potts as having lit “his torch” and to having said there would be “fireworks.” When Mr. Maygard-Olynyk left the unit, it was not on fire. Mr. Maygard-Olynyk said “Shane came out last.” [ 125 ] In cross-examination, Mr. Maygard-Olynyk said that when Mr. Potts arrived, he said “I’m the clean-up crew.” 5. The Evidence and Mr. Potts [ 126 ] The admissible evidence relating to Mr. Potts’ involvement in Mr. Desjarlais’ homicide comes from Mr. Maygard-Olynyk’s testimony. Mr. Maygard-Olynyk put Mr. Potts in the unit after or around the time that Mr.

Desjarlais had been manually strangled then had an extension cord wrapped around his throat. Mr. Potts was present before the fire in the unit started. He was the last person out of the unit. [ 127 ] Because Mr. Desjarlais died in his own apartment unit, on private property, with no evidence of any persons being present at the material times other than Mr. Favel, Mr. Maygard-Olynyk, the “black-haired girl,” and Mr. Potts, and with no time for anyone to come into the premises after Mr.

Potts left before it was on fire, there is no room for an inference that an unknown third party was responsible for the placement of the sock. [ 128 ] Mr. Potts had, initially, a non-exclusive opportunity to stuff the sock into Mr. Desjarlais’ mouth. Mr. Maygard-Olynyk’s testimony would put himself, Mr. Favel, and “the black-haired girl” in the unit for at least part of the time that Mr. Potts was in the unit. [ 129 ] Mr. Potts would have had an exclusive opportunity to stuff the sock into Mr. Desjarlais’ mouth from the period after the last of the others left the unit until he left the unit.

On the evidence, the length of this period was indeterminate. It is not even known if it was a short time or a relatively long time, whether it was less than a minute or more than a minute. [ 130 ] Is it reasonably possible that Mr. Potts, and not an accused, stuffed the sock into Mr. Desjarlais’ mouth? Put another way, did Mr. Potts, through his period of both exclusive and non-exclusive opportunity, have a “sufficient connection” to the events to raise at least a reasonable doubt as to whether he was the individual who stuffed the sock into Mr. Desjarlais’ mouth?

See R v Grandinetti , [2005] 1 S.C.R. 27, 2005 SCC 5 , Abella J at paras 46-48; R v Grant , 2015 SCC 9 , Karakatsanis J at paras 24-25. [ 131 ] Besides opportunity, including the indeterminate period of exclusive opportunity, there was no other evidence tending to support Mr. Potts’ involvement in the act in question, no evidence (e.g.) of motive or animus or propensity. I did not discern and was not directed to evidence in Mr. Maygard-Olynyk’s testimony that might support an inference of motive or animus . There was no evidence whatsoever about Mr. Potts’ disposition, save for his conviction.

The factual foundation for Mr. Potts’ conviction was obscure. I do not view the evidence as tending to rule out each of the accuseds as the person who committed the act in question. None admitted putting the sock in Mr. Potts’ mouth, it is true. The situation is one of an absence of evidence of participation rather than evidence of non- participation. That is to say, I take the non-admissions and denials of responsibility as leaving open the question of who was responsible for the sock. Why should I conclude that it is reasonably possible that Mr.

Potts was responsible for the sock, and not one of the accuseds, just because of his fleeting period exclusive opportunity? [ 132 ] In my opinion, the inference that Mr. Potts was responsible for the sock and not one of the accuseds is a possible inference but not a reasonable inference. [ 133 ] The evidence does not permit me to determine which individuals were responsible for the act in question.

[ 134 ] This finding, though, does not end the inquiry into the role of the sock. B. Responsibility for the Sock [ 135 ] Someone stuffed the sock down Mr. Desjarlais’ throat. That someone was one or more of the persons present in Mr. Desjarlais’ unit from the time of the events leading to the extension cord being tied around his neck until the unit was set on fire. That someone was one or more of Mr. Potts, Mr. Favel, Mr. Maygard-Olynyk, or Ms. Omeasoo. [ 136 ] I infer from Mr. Maygard-Olynyk’s testimony that this act occurred after Mr. Desjarlais was manually choked and the extension cord tied around his throat.

C. Timing of Insertion [ 137 ] Dr. Balachandra was unable to say whether the sock was placed in Mr. Desjarlais’ mouth pre- or post-mortem. [ 138 ] If the sock were placed in his mouth post-mortem, the act could be attempted murder or offering an indignity to a dead body, but it would not affect the assessment of the causal responsibility of the accuseds for the death of Mr. Desjarlais. [ 139 ] However, since Dr. Balachandra was unable to rule out the possibility that the sock was placed in Mr. Desjarlais’ mouth pre- mortem, it is reasonably possible that the sock was placed in Mr.

Desjarlais’ mouth while he was still alive. [ 140 ] Further, while the wire noose around Mr. Desjarlais’ throat could have caused death by itself, Dr. Balachandra could not say with certainty that the wire caused death. He could not assess the pressure actually exerted by the wire because of heat effects on Mr. Desjarlais’ body. Hence, the wire wrapped around Mr. Desjarlais’ throat was not necessarily the unitary or singular cause of Mr. Desjarlais’ death. [ 141 ] It is reasonably possible, then, that the sock and its placement were the proximate cause of Mr. Desjarlais’ death.

The evidence does not permit the identification of the individual who placed the sock in Mr. Desjarlais’ mouth. Does all this mean that the accuseds cannot be responsible for Mr. Desjarlais’ death? [ 142 ] Put a better way, do the accuseds remain causally responsible for Mr. Desjarlais’ death, despite the intervention by the unknown person? D. Causal Assessment [ 143 ] The question is whether, despite the intervention with the sock, the accuseds remain a significant contributing cause of Mr.

Desjarlais death, a contributing cause of death outside the de minimis range. “Were the dangerous, unlawful acts of the accused a significant contributing cause of the victim’s death?” Maybin at para 28 . [ 144 ] As indicated above, causation in homicide cases has two aspects, factual causation and legal causation. [ 145 ] Factual causation is “but for” causation: but for the actions of the accused, would the death have occurred? [ 146 ] In this case, I have found that the sock placement occurred after the manual choking occurred and the extension cord was wrapped around Mr. Desjarlais’ throat.

He had been rendered unconscious, on Mr. Maygard-Olynyk’s account. Mr. Desjarlais was left to be further abused by anyone present in his apartment. Pushing the sock into Mr. Desjarlais’ throat took some effort. It would have been very difficult had he been awake and unrestrained. Already dead, near dead, or unconscious, the task would have been easier. The acts of each accused, like the acts of appellants in Maybin , were the “but for” cause of Mr. Desjarlais death, if his death were indeed caused by the placement of the sock. See Maybin at para 20 . [ 147 ] The acts of the accuseds left Mr.

Desjarlais vulnerable to the intervention with the sock. We read the following in Harkes at para 62 : [62] The overall test for causation is that of “significant contributing cause”. Vulnerability is not a standalone principle of law; rather, it has been relied upon to assist in explaining what “significant contributing cause” means. As this Court held in Cabrera at para 65, citing Maybin at para 20 , to meet the test for causation “[i]t is not necessary that the accused’s actions be the direct or more significant cause.

It may be enough if the accused’s actions render the victim vulnerable to the assault of others and death results.” Therefore, in this context vulnerability provides another way of describing the issue of causation to a jury. At para 63, the Court of Appeal provided an account of the term “vulnerable,” a term applicable to the deceased in Maybin and to Mr.

Desjarlais: [63] The decisions referred to earlier in these reasons which considered the issue of vulnerability suggest that vulnerable has its ordinary meaning, that being “open to attack or damage” and synonymous with “susceptible” or “exposed”: Merriam-Webster Dictionary (online) .... [ 148 ] Whether legal causation responsibility is maintained despite an intervening causal event is assessed using the analytical tools of reasonable foreseeability and independence of the intervening act: Maybin at para 28 . [ 149 ] Reasonable foreseeability does not concern the specific actor responsible for the intervening act or the specific act performed but the objective foreseeability of both the general nature of the act and the risk of non-trivial harm: Maybin at paras 34, 35, 38 .

The act and harm must “flow reasonably” from the conduct of the accuseds: Maybin at para 38 .

[ 150 ] In this case, the specific actor could not have been reasonably foreseeable as it cannot be determined who that was. In this case, the specific act was stuffing a sock so far down Mr. Desjarlais’ throat that he could not breathe. I accept that this specific act, out of all the indignities that might have been visited on Mr. Desjarlais, was not itself reasonably foreseeable. [ 151 ] But in its general features and attendant non-trivial bodily harm, the placement of the sock was foreseeable. The perpetrator choked out Mr. Desjarlais then bound up his neck with the assistance of the other accuseds.

Just as in Maybin , when in the context of an escalating bar fight the causation of further non-trivial harm by the interventions of other patrons was reasonably foreseeable, so in this case, in the context of a homicidal assault by a group of individuals on Mr. Desjarlais it was reasonably foreseeable that the individuals involved in the assault would continue subjecting Mr. Desjarlais to serious violence or that an individual joining the attackers would himself contribute his own serious violent acts against Mr. Desjarlais.

In this case, the individual or individuals responsible for the intervening act were members of the very group that initially attacked Mr. Desjarlais or an individual who joined them. See Maybin at para 41 . [ 152 ] The placement of the sock was precisely aligned with the violence that preceded it. Mr. Desjarlais was subjected to manual choking or strangulation. This was followed by strangulation using an extension cord. The placement of the sock was an internal means of choking the life out of Mr. Desjarlais. All the acts were acts threatening death. All the acts attacked Mr.

Desjarlais’ throat. [ 153 ] It is notable that what befell Mr. Desjarlais was not a new type of attack, as with a bladed weapon or by throwing him out a window, and not a new target of attack, as to some other part of his anatomy. The placement of the sock was of a piece with what preceded. It flowed naturally from the violence that preceded it. [ 154 ] These observations are relevant to the independence or lack of independence of the intervening act. An inte

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