R v Daignault, 2024 ABKB 44

Court of King’s Bench of Alberta Citation: R v Daignault, 2024 ABKB 44 Date: 20240124 Docket: 200630762Q2 Registry: Calgary Between: His Majesty the King - and - Robert Gordon Daignault _______________________________________________________ Reasons for Judgment of the Honourable Justice Eleanor J Funk _______________________________________________________ I. Introduction [ 1 ] I provided an oral

summary of these Reasons in open court. Immediately afterwards, I provided Counsel with these complete Reasons. [ 2 ] Shortly after sunrise on December 29, 2019, a local resident, out walking his two dogs, discovered Mr. Hirani’s body, in a ditch, on a rural road south of Cochrane. [ 3 ] The accused, Mr. Daignault, started this trial charged with first degree murder in relation to the death of Mr. Hirani. At the end of the trial, the Crown sought to amend the Indictment to a single count of manslaughter. [ 4 ] The Crown’s theory is that Mr. Daignault, along with two other individuals, set out to rob Mr.

Hirani and that Mr. Hirani was killed during that robbery. Both of those individuals, Trista Tinkler and Andrew Christal, have been convicted of manslaughter in relation to Mr. Hirani’s death. Both testified for the Crown in this trial. Both implicated Mr. Daignault in the death of Mr. Hirani. Both are Vetrovec witnesses.

[5] The Crown seeks a conviction of manslaughter against Mr. Daignault on the basis that he was a party to the robbery that ledto Mr. Hirani’s death. [6] Mr. Daignault did not testify in his defence. [7] Because of the inherently untrustworthy nature of the Crown’s two main witnesses, a key issue for me to determine iswhether there is other, independent, evidence, confirming the testimony of the Vetrovec witnesses, on which I can rely in determiningwhether the Crown has proven Mr. Daignault’s guilt. [8] Because Mr. Christal’s and Ms. Tinkler’s evidence is the only direct evidence implicating Mr.

Daignault, the independentevidence comes largely from circumstantial, including post offence conduct, evidence. II. Relevant Law A. Burden and Standard of Proof [9] As with any criminal trial, the Crown bears the burden of proving Mr. Daignault’s guilt beyond a reasonable doubt. Thatburden never shifts away from the Crown: R v Lifchus, (SCC) at para 27. [10] The standard of proof beyond a reasonable doubt applies to each element of the offence charged; it does not apply toindividual pieces of evidence. B.

Assessing Vetrovec Witnesses [11] A Vetrovec witness is one who presents with a disreputable and untrustworthy background: R v Vetrovec, (SCC), [1982] 1 SCR 811. These witnesses can include accomplices or witnesses with a “demonstrated moral lack”: Vetrovec at 832.Recently, in R v Lawrence, 2020 ABCA 268 at para 26 (citing R v Vallee, 2018 BCSC 892 at para 161, aff’d 2022 BCCA 11, leave toappeal to SCC denied, 40087 (14 April 2022)), the Court laid out a non-exhaustive list of characteristics triers of fact should considerwhen assessing the evidence of a Vetrovec witness. These include: 1.

Did the witness have any motive to lie or mislead the court? 2. Did the witness receive benefits for cooperation such that there is a risk he is lying to the court? 3. Did the witness have a long criminal history? 4. Did the witness have a history of lying to or manipulating the police? 5. Was the witness an accomplice with knowledge of the circumstances such that it would be easy to falsely implicate the accused? 6. Did the witness have access to disclosure or other information that may explain his evidence or how it was given? 7. Did the witness minimize his own wrongdoing? 8.

Did the witness exhibit selective memory? 9. Did important evidence emerge only after the witness exhausted his memory or after prodding by police? 10. Did new information emerge for the first time at trial despite many previous statements? 11. Was the witness evasive? 12. Was the witness testimony inconsistent with external evidence, particularly objective evidence that has been accepted? 13. Did the witness provide prior inconsistent statements? 14. Was the witness internally consistent: did the witness evidence change in testifying? 15.

Upon the application of common sense, is the witness evidence impossible, improbable, or unlikely. [12] If a witness falls within this category, then triers of fact should view the evidence of that witness with great caution andshould look for independent, confirmatory, evidence. [13] Confirmatory evidence need not be evidence that implicates the accused. Instead, it must be capable of supporting a belief thatthe Vetrovec witness is telling the truth about the accused’s guilt.

Confirmatory evidence can come from other witnesses, including otherVetrovec witnesses, and from other pieces of evidence: R v Letourneau, 2023 ABKB 502, at paras 23-26; Vetrovec, at 821-832;Lawrence at paras 26-28; R v Mela, 2021 ABCA 38 at para 36. C. Circumstantial Evidence [14] Triers of fact may draw inferences of guilt from circumstantial evidence where the accused’s guilt is the only reasonable

inference to be drawn from the evidence. If there are reasonable inferences inconsistent with guilt, the Crown’s evidence does not meetthe standard of proof beyond a reasonable doubt: R v Villaroman 2016 SCC 33 at paras 30, 36. D. Post Offence Conduct [15] Post offence conduct (or after the fact conduct) is a type of circumstantial evidence. It refers to anything an accused personsays or does after the alleged offence took place.

Evidence of post offence conduct is commonly admitted to show that an accused personacted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent withthe conduct of an innocent person: R v Courtorielle, 2023 ABKB 536 at para 147, citing R v Calnen, 2019 SCC 6 at para 106, R vPeavoy, (ONCA). [16] Like other pieces of circumstantial evidence, post offence conduct may be subject to other

interpretations and must beweighed in light of the evidence as a whole, using human experience and common sense: Courtorielle at para 149, citing R v White, (SCC) at para 21. III. Background [17] In 2019, Andrew Christal and Trista Tinkler had been friends for many years. At various times in their lives, they had alsobeen romantically involved with each other. In late 2019, Ms. Tinkler was romantically involved with Mr. Daignault. In December, Mr.Daignault and Ms. Tinkler were “couch surfing” at the home of their friend, Lindsie Ogle. [18] Mr. Christal and Mr.

Daignault knew each other, to some extent, through Ms. Tinkler. All three were heavily involved in druguse during this period of their lives. Ms. Tinkler was additionally engaged in sex work and drug trafficking. [19] Ms. Tinkler knew the deceased, Mr. Hirani. She described him as a “friend.” Mr. Hirani was an Uber driver; he drove a Kia.There is no suggestion that Mr. Hirani was involved in any drug use or criminal lifestyle. The evidence suggests that Mr. Hirani was aclient of Ms. Tinkler’s and the two of them would meet to exchange sex for money. [20] Throughout the relevant timeframe, Ms.

Tinkler had two cell phones: one number ended in #5822; the other ended in #2414.Mr. Daignault and Ms. Tinkler both used these phones, apparently interchangeably. There is no evidence of anyone else using thesephones. [21] On the morning of December 29, 2019, Mr. Hirani’s body was discovered in a ditch along a rural road. He had been fatallystabbed and left there. Within days, the police identified Mr. Daignault, Ms. Tinkler, and Mr. Christal as persons of interest in relation tohis death. In June of 2020, the police charged all three with murder. [22] Ms. Tinkler ultimately pleaded guilty to manslaughter.

A jury convicted Mr. Christal of manslaughter. They both testified forthe Crown in this trial. Theirs is the only direct evidence implicating Mr. Daignault in Mr. Hirani’s death. There is no question they areboth Vetrovec witnesses. IV. The Vetrovec Evidence A. Andrew Christal [23] Mr. Christal said he was with Ms. Tinkler at the Regal Beagle pub in the late evening of December 28 and the early morninghours of December 29, 2019. At one point in the evening, Ms. Tinkler got a phone call and told Mr. Christal she had something to do.Mr. Christal left the pub, alone. He didn’t know where Ms.

Tinkler was going and had no plans to meet up with her again later thatevening. [24] While he was driving to his friend’s house, Ms. Tinkler called Mr. Christal and invited him over to Ms. Ogle’s residence to gethigh. Mr. Christal drove to Ms. Ogle’s, where he parked on the front street and waited for Ms. Tinkler for about 15 minutes. He calledand sent several text messages to Ms. Tinkler, wondering where she was. [25] Ms. Tinkler eventually told Mr. Christal that she was in the back. Mr. Christal walked to the back yard, where he saw Ms.Tinkler standing beside a vehicle parked in the alley. Mr.

Christal got into the back seat. There was another man in the back seat whomhe did not know. Ms. Tinkler got into the front passenger seat and the vehicle left the area, with Mr. Daignault driving. [26] Mr. Christal testified that he did not know what was going on until, about 10 minutes into the drive when, he heard Ms.Tinkler and Mr. Daignault yelling at the man in the back seat, demanding his bank information. Mr. Christal then realized they weredriving in this man’s vehicle. Uncomfortable and wanting to get out of this situation, Mr.

Christal also told the man to hand over hisbanking information, hoping they could all get out of there. At no time did Mr. Christal or the other man in the back seat try to get out ofthe car. [27] Mr. Daignault and Ms. Tinkler were able to get the man’s bank cards, banking information, and phone. Ms. Tinkler used theman’s phone to access his banking information. [28] At some point, the man threatened some type of retaliation against Ms. Tinkler. Mr. Daignault then turned down a rural roadand drove a short distance before stopping the car. Mr. Daignault “ripped” the man out of the car and told Mr.

Christal to also get out.Mr. Christal tried to help and “steady” the man as Mr. Daignault “threw him around.” When Mr. Daignault pulled out a knife and started

repeatedly stabbing the man, Mr. Christal dropped his cigarette on the road and started pacing back and forth, not knowing what to do. [ 29 ] Mr. Christal first testified, in this trial, that Mr. Daignault was stabbing the man with a Bowie knife that Mr. Christal had given to Mr. Daignault a couple of days earlier. He later changed his evidence and testified that he was not sure what knife Mr. Daignault was using. [ 30 ] The man was eventually left laying in the ditch, not breathing, and not talking. Mr. Christal and Mr. Daignault got back in the car and left, with Mr. Daignault still driving. Mr.

Christal denied having any blood on his hands or clothes when he got back into the car. He admitted he possibly had some blood on his shoes. [ 31 ] After leaving the man on the side of the road, they stopped at a gas station, where Ms. Tinkler took out $500.00 cash and bought some packs of cigarettes using the man’s bank card. [ 32 ] When they got back to Ms. Ogle’s residence, Mr. Christal jumped in his truck and took off. He later burned his shoes and clothes from that night, saying that Mr. Daignault and Ms. Tinkler told him to get rid of his clothes. [ 33 ] A couple of days later, Ms. Tinkler contacted Mr.

Christal and asked him to pick her up near a 7-Eleven on 16 th Avenue. Ms. Tinkler had a bunch of her belongings with her when she got into Mr. Christal’s truck. Mr. Christal drove Ms. Tinkler to the Horseman Hotel, in Airdrie, stopping at a casino and a mall along the way. [ 34 ] When they got to the Horseman Hotel, Ms. Tinkler went inside. Mr. Christal believed she was trying to get in touch with Mr. Daignault. Mr. Christal ended up driving Ms. Tinkler back into Calgary, where they picked up Mr. Daignault at a bar on 16 th Avenue. [ 35 ] The three returned to the Horseman Hotel, where Mr.

Christal filled out the room reservation card, using the name “Andrew C.” Ms. Tinkler paid for the room with a credit card. Mr. Christal did not stay at the hotel with Ms. Tinkler. While in Airdrie, Mr. Christal ran some errands with Ms. Tinkler. She wanted to buy shampoo and other items; she gave a card to Mr. Christal to buy alcohol. [ 36 ] A few days later, Ms. Tinkler asked Mr. Christal to drive her and Mr. Daignault to Edmonton; he refused. Mr. Christal did not see Ms. Tinkler and Mr. Daignault again. B. Trista Tinkler [ 37 ] Ms. Tinkler also said that she and Mr.

Christal were at the Regal Beagle pub together when she made plans to meet up with her friend, Mr. Hirani. She believed she told Mr. Christal who she was planning to meet. She did not recall if she told Mr. Daignault about her plans but thought he “probably” knew. [ 38 ] Ms. Tinkler did not know if Mr. Daignault had any plans that night and did not recall if he told her about any plans. She did not know where Mr. Christal went after he left the pub, and she had no plans to meet with him later that evening. [ 39 ] Mr. Hirani picked up Ms. Tinkler from the pub.

He bought her cigarettes and together they went to a liquor store, where Mr. Hirani bought some alcohol. Ms. Tinkler and Mr. Hirani then went to Ms. Ogle’s residence. They were not inside the home for long before Ms. Tinkler went outside for a smoke. Mr. Hirani went with her. Later in her evidence, Ms. Tinkler said that she got a text message from Mr. Daignault, telling her to come outside. [ 40 ] When they were outside, Ms. Tinkler and Mr. Hirani got into Mr. Hirani’s vehicle, parked in the alley behind Ms. Ogle’s residence. Ms. Tinkler got into the front passenger seat; Mr. Hirani got into the back seat. Mr.

Christal and Mr. Daignault were also in the car. They left the area, with Mr. Daignault driving. Ms. Tinkler remembered Mr. Hirani handing over his car key to Mr. Daignault but could not recall who asked for the key. [ 41 ] Later in her evidence, Ms. Tinkler said that Mr. Daignault and Mr. Christal were both outside when she and Mr. Hirani left Ms. Ogle’s home. One of them told her and Mr. Hirani to get into the car, but she did not recall which one. [ 42 ] Ms. Tinkler did not recall how long they were driving nor if there was any conversation in the car while they were driving. She recalled that Mr.

Hirani had a cell phone with him but did not know where that phone was. She saw no weapons in the vehicle and did not know where they drove but thought they stopped “a couple of times.” She later said she was sure Mr. Christal had a knife with him as “he went nowhere without it attached to his belt.” [ 43 ] Ms. Tinkler described Mr. Hirani’s mood in the car as “scared. Because he was being robbed of his money.” She testified that Mr. Hirani was being forced to disclose his banking information but did not remember who was forcing him. She said Mr.

Hirani was crying and saying that he would give them whatever they wanted. Ms. Tinkler wanted Mr. Hirani’s PIN numbers and said “we” got all of the banking information “we” wanted. Ms. Tinkler had Mr. Hirani’s phone and wrote down his banking information. Using Mr. Hirani’s phone, she transferred some money between his accounts, so that she could later transfer funds to herself. [ 44 ] At some point, she recalled that the car stopped, and Mr. Hirani got out. Ms. Tinkler was not sure if Mr. Daignault also got out of the car. She recalled Mr. Christal getting out and she “possibly” recalled being alone in the car.

Ms. Tinkler did not know why they stopped nor what happened while they were stopped, saying she “didn’t look back,” but she “possibly” heard screaming “possibly” when she was alone in the car. Eventually, Mr. Christal got back in the car. Ms. Tinkler didn’t think she saw blood in the vehicle nor on any of the people inside the car. [ 45 ] After, Ms. Tinkler remembered going to a 7-Eleven store, where she bought a Slurpee and some candy. She did not remember if she withdrew any cash from the bank machine. She testified that they arrived at the 7-Eleven in Mr. Hirani’s vehicle, and that Mr.

Daignault was still driving. She believed Mr. Christal was also in the vehicle. Mr. Hirani was no longer with them.

[ 46 ] When examination in chief continued after a weekend break, and with a screen now blocking her view of Mr. Daignault in the courtroom, Ms. Tinkler’s evidence changed. She now said that, while she had known Mr. Hirani for some time, her feelings about him had changed in the days leading up to these events. Mr. Hirani had tried to offer Ms. Tinkler money, and this made her feel like a “cheap whore.” She told both Mr. Daignault and Mr. Christal about this. [ 47 ] When she was at the Regal Beagle, Ms. Tinkler made plans to meet with Mr. Hirani. She wanted to “teach him a lesson” by robbing him. Ms.

Tinkler did not recall when, in relation to being at the Regal Beagle, she told Mr. Daignault that she wanted to rob Mr. Hirani. She told Mr. Christal about this plan when they were at the Regal Beagle. [ 48 ] Ms. Tinkler said that she “did a cap of G” (GHB) in the living room of Ms. Ogle’s residence when she and Mr. Hirani were there after buying alcohol, explaining that she decided to take G “because they weren’t supposed to go anywhere.” When she and Mr. Hirani went outside for a smoke, Mr. Hirani “was robbed of his car key.” Ms. Tinkler was not surprised by this but was surprised that Mr.

Hirani also got into the car as this was not part of the plan. She said they only planned to steal Mr. Hirani’s car but did not know how they planned to take his car or what they planned to do after getting his car key. [ 49 ] Ms. Tinkler now remembered what happened when Mr. Hirani’s vehicle stopped “a couple of times.” She testified that the first time the car stopped, Mr. Hirani got out of the car and was running down the road and up a hill. Mr. Christal jumped out of the car, chased Mr. Hirani, brought him back to the car, and put him in the back seat. [ 50 ] The next time the vehicle stopped, Mr.

Christal got out of the car and put Mr. Hirani in the trunk “because he wouldn’t stop screaming.” [ 51 ] The car stopped again when they could no longer hear Mr. Hirani screaming in the trunk. Mr. Christal got out of the car again. This time, they remained stopped for about 20 minutes. Mr. Hirani did not return to the car. [ 52 ] Ms. Tinkler testified that she heard Mr. Hirani screaming while he and Mr. Christal were outside of the car. While she did not see what was going on, Ms. Tinkler believed Mr. Christal was stabbing Mr. Hirani because she could hear Mr. Hirani “asking for it to stop.” Ms.

Tinkler thought Mr. Daignault also got out of the car for a couple of minutes, “to help” Mr. Christal. Mr. Hirani stopped screaming after Mr. Daignault got out of the car. Ms. Tinkler saw Mr. Christal with a knife. She didn’t see anyone else with a knife “because [she] wasn’t outside.” When Mr. Daignault got back into the car, Ms. Tinkler saw him lick blood from the tip of his right thumb. [ 53 ] Ms. Tinkler remembered going to a Staples store a day or two later, where she bought a tablet and laptop. She identified Mr. Daignault as the person with her when shown photos from the Staples store. Ms.

Tinkler paid for these items using one of Mr. Hirani’s bank or credit cards, saying the cards “were just in the car.” [ 54 ] Ms. Tinkler said she and Mr. Daignault arrived at the Staples store in Mr. Hirani’s vehicle, and that Mr. Daignault was driving. She also remembered buying groceries and gift cards, using Mr. Hirani’s bank cards. She also sent an e-transfer from one of Mr. Hirani’s accounts to herself and later asked Ms. Ogle to help her complete that transfer. [ 55 ] Ms. Tinkler said that Mr. Christal drove her and Mr. Daignault to the Horseman Hotel after she and Mr. Daignault got “kicked out” of Ms.

Ogle’s residence. Her evidence was that she and Mr. Daignault stayed at the hotel for a couple of nights before some friends drove them into Calgary, where they borrowed a green Chrysler Sebring (“Sebring”) from a friend. Mr. Daignault drove them, in that car, to Edmonton, where they were arrested a couple of days later. C. Credibility Concerns of the Vetrovec Witnesses 1. Andrew Christal [ 56 ] While Mr. Christal had no previous criminal convictions, prior to his conviction for manslaughter in relation to the death of Mr.

Hirani, there are several Vetrovec factors that raise significant credibility concerns in relation to his evidence. [ 57 ] In relation to having a motive to lie or mislead the Court, Mr. Christal’s animus towards Mr. Daignault was obvious in this trial. He clearly blames Mr. Daignault for the fact that he is in jail, serving a sentence for manslaughter. As an accomplice to Mr. Hirani’s death, Mr. Christal has specific knowledge of the offence from which it would be easy for him to falsely implicate Mr. Daignault. [ 58 ] The police interviewed Mr. Christal on three separate occasions between Mr.

Hirani’s body being discovered and ultimately charging Mr. Christal with murder. In his statements to police, Mr. Christal told a litany of lies. Some of those lies were in relation to the circumstances surrounding Mr. Hirani’s death. Others were lies more generally about Mr. Christal’s life. The list of lies is too long to recite here. Some of the major inconsistencies are as follows. [ 59 ] In relation to his whereabouts leading up to Mr. Hirani’s death, Mr. Christal’s story changed on several occasions. He first told police that he had been with Ms.

Tinkler at Boston Pizza, for about a half an hour, the evening before. Later, Mr. Christal admitted he and Ms. Tinkler had been at the Regal Beagle. He initially told police that, from the Regal Beagle, he went straight to a friend’s house, where he played video games all night. Later, he added that he picked up drugs before going to his friend’s house. In another version of events, Mr. Christal told police that, when he left the Regal Beagle, Ms. Tinkler told him to come back to Ms. Ogle’s house in half an hour, and that is what he did. In this trial, Mr.

Christal maintained he was driving to his friend’s house, from the Regal Beagle, when Ms. Tinkler called him and invited him over to get high. [ 60 ] With respect to his knowledge of Mr. Hirani, Mr. Christal first told police that he did not know Mr. Hirani; had never seen him; or been in his car. He also told police that he had not been to the scene where Mr. Hirani was killed. He denied having anything to do with Mr. Hirani’s death and told police he only learned about his death through a social media post. Mr. Christal’s stories evolved and

changed as the police confronted him with evidence they had gathered. [ 61 ] When the police told Mr. Christal they had recovered tire tracks and footwear impressions from the scene, Mr. Christal offered to give the police the shoes he had worn that night. Instead, he took photos of a different pair of shoes and sent those pictures to the police. When the police doubted these were the shoes Mr. Christal wore on the night of Mr. Hirani’s death, Mr. Christal double- downed on his lie, insisting these were the same shoes; the only difference being that he had changed the laces.

Months later, when the police continued to disbelieve Mr. Christal about the shoes, he finally told police that he had burned his shoes from that night. [ 62 ] When the police asked Mr. Christal if there was any reason his DNA would be at the scene of Mr. Hirani’s death, he said there was not as he had never been there. When the police confronted Mr. Christal with evidence that a cigarette butt, with his DNA, had been located at the scene, Mr. Christal said that Ms. Tinkler had asked him for some smokes earlier in the night. He did not have any cigarettes; he had some butts and gave Ms.

Tinkler some cigarette butts to smoke. [ 63 ] When the police confronted Mr. Christal with evidence of blood being located in the back seat of Mr. Hirani’s car, Mr. Christal told the police both that Mr. Daignault started stabbing Mr. Hirani in the back seat, and that Mr. Daignault put his bloodied hands all over the back seat. [ 64 ] Mr. Christal eventually admitted to police that he was there the night Mr. Hirani was killed. He told police that, when he was in the backyard of Ms. Ogle’s house, Mr. Daignault pushed Mr. Hirani into the car and told Mr. Christal to also get in. He also told police that Mr.

Daignault and Ms. Tinkler grabbed Mr. Hirani and put him in the car. [ 65 ] In relation to Mr. Hirani’s death, Mr. Christal told the police that “Rob did everything” and that he turned his head and did not watch as Mr. Daignault stabbed Mr. Hirani. He told police that Mr. Daignault used Mr. Christal’s knife to kill Mr. Hirani. His stories ranged from Mr. Daignault telling Mr. Christal to bring the knife to the backyard at Ms. Ogle’s, to Mr. Daignault waiting in the front at Ms. Ogle’s and directing Mr. Christal to bring the knife from his truck, and finally to Mr.

Daignault reaching into the truck to grab the knife, along with a pair of gloves. [ 66 ] At one point, Mr. Christal told police that he never touched Mr. Hirani. Another time, he told police that he held Mr. Hirani, but did not stab him. He described to police holding Mr. Hirani’s shoulders; getting blood all over his hands; and walking away when Mr. Hirani hit the ground. [ 67 ] Mr. Christal told police that Mr. Hirani threatened to kill Ms. Tinkler. He also said that he did not even “know why I fuckin did it.” Mr. Christal told police Mr. Daignault kept stabbing Mr. Hirani and told Mr.

Christal to hold him down. At one point, Mr. Christal said, “enough is enough” and walked away. [ 68 ] When confronted with these inconsistencies in this trial, Mr. Christal said he lied to police because he was scared of Mr. Daignault and Ms. Tinkler. At times, he claimed to have no memory of some of the things he told police, saying it was a long time ago and he did a lot of drugs back then. Throughout his evidence in this trial, Mr. Christal insisted that he did not stab Mr. Hirani and did not hold Mr. Hirani while anyone else stabbed him. [ 69 ] Mr. Christal’s evidence here was also internally inconsistent.

He testified that Mr. Daignault stabbed Mr. Hirani with a knife given to him days earlier by Mr. Christal. Later, he testified that he did not know what knife Mr. Daignault used during the stabbing. [ 70 ] Mr. Christal’s testimony that he gifted a knife and gloves to Mr. Daignault days before Mr. Hirani’s murder is entirely without credit. The evidence establishes that Mr. Christal and Mr. Daignault did not know each other well and were not friends. There is no plausible basis to accept Mr. Christal’s evidence that he gave these items to Mr. Daignault. [ 71 ] Mr.

Christal’s evidence was also externally inconsistent. His insistence that he did not touch Mr. Hirani and had no blood on his clothes and shoes is inconsistent with the presence of blood on both sides of the back seat of Mr. Hirani’s vehicle, where Mr. Christal said he was sitting. It is also inconsistent with his evidence of later burning his clothes. [ 72 ] It is clear that I must approach Mr. Christal’s evidence with extreme caution.

He amply demonstrated the facility with which he was willing to lie to police in his multiple earlier statements in his attempts to avoid having any blame pointed in his direction. [ 73 ] In his evidence before me, Mr. Christal’s continued attempts to shift blame were obvious. He continued to deny or downplay his involvement in the robbery and ultimate murder of Mr. Hirani. His story that he had no idea what was going on inside Mr. Hirani’s vehicle when it drove away from Ms. Ogle’s residence is incapable of belief. The overall picture revealed by the whole of the evidence does not support Mr.

Christal’s narrative of being an unwitting witness to the robbery and ultimate death of Mr. Hirani. 2. Trista Tinkler [ 74 ] Ms. Tinkler’s evidence is also laden with credibility concerns. Her criminal record spans four pages and twenty years and includes crimes of dishonesty. [ 75 ] In relation to having a motive to lie or mislead the Court, Ms. Tinkler admitted at trial to not liking Mr. Daignault and feeling used by him. Like Mr. Christal, she is an accomplice to Mr. Hirani’s death and has specific knowledge of the offence from which she could falsely implicate Mr.

Daignault. [ 76 ] The police also interviewed Ms. Tinkler several times between discovering Mr. Hirani’s body and charging her with murder. She also told many lies throughout her statements to police. [ 77 ] Ms. Tinkler initially told police she had no idea why the police would want to talk to her and denied knowing Mr. Hirani. She said she went out for drinks and food with Mr. Christal; they stayed at the restaurant until 2:00 to 3:00 a.m.; and then Mr. Christal dropped her off at home. She also said that she and Mr. Christal hung out and drank at Ms. Ogle’s home after leaving the Regal Beagle.

She fell asleep on the couch with Mr. Daignault and woke up at 4:00 p.m. [ 78 ] Ms. Tinkler told police she was not involved in Mr. Hirani’s murder and that someone simply left Mr. Hirani’s vehicle for her at Ms. Ogle’s home. She seemed to suggest that she and Mr. Daignault had Mr. Hirani’s vehicle so that they could re-VIN it. Ms. Tinkler told police she noticed Mr. Hirani’s vehicle was different from other stolen vehicles she had been in because he had left his “ID and stuff” in the car. Ms. Tinkler admitted to using one of these bank cards to buy a bunch of candy at a 7-Eleven.

The next time she tried to use the card, it was declined. [ 79 ] Ms. Tinkler told police she only became aware of Mr. Hirani’s death when she saw herself on the news, a day or two later. She was upset because this ruined her New Year’s plans. [ 80 ] When the police confronted Ms. Tinkler with some of the evidence they had discovered, her story changed. She now told police she went on a “date” that night with Mr. Hirani, after which he dropped her off (at some unspecified location) and Mr. Christal drove her home. [ 81 ] When Ms. Tinkler eventually admitted to police that she was present when Mr.

Hirani was killed, she first said that she “took a bunch of G” that night; she later woke up; and “they told [her] they left him in the bushes.” Ms. Tinkler told police that when she woke up, in the front seat of Mr. Hirani’s car, they were in the city (Calgary). She did not recall if Mr. Christal and Mr. Daignault had blood on them. [ 82 ] In another statement, Ms. Tinkler told police that someone put a bag over her head and one over Mr. Hirani’s head before placing her and Mr. Hirani in his car. When her bag eventually came off, Ms. Tinkler said she “just drank a bunch of G” and passed out.

At another point, Ms. Tinkler said that her hood came off when she was in the front seat; she took a “swig of G ;” and she didn’t look back because she “didn’t want to know” what was happening outside of the car. Still elsewhere, Ms. Tinkler said she thought she heard screaming while she was passed out. [ 83 ] In another statement to police, Ms. Tinkler said that the night she was at the Regal Beagle with Mr. Christal, she told Mr. Daignault she had a date with Mr. Hirani. Mr. Daignault came up with the plan to rob Mr. Hirani; Ms. Tinkler told Mr.

Christal about this plan at the Regal Beagle, and he nodded. [ 84 ] When confronted, at trial, on her previous inconsistent statements to police, Ms. Tinkler often replied that she did not recall what she told to the police on earlier occasions. [ 85 ] Ms. Tinkler also testified for the Crown at Mr. Christal’s trial. There, Ms. Tinkler said she did not remember what conversation she had with Mr. Christal at the Regal Beagle; she was passed out on G when she was later in Mr. Hirani’s car; and she did not really know what happened to Mr. Hirani. She remembered getting into Mr.

Hirani’s car; the next thing she remembered was going to 7-Eleven. In that trial, Ms. Tinkler said nothing about convening a plan to rob Mr. Hirani nor taking his banking information while they were driving in his car. [ 86 ] In her evidence before me, Ms. Tinkler described Mr. Hirani as a “friend.” She was evasive and reluctant about whether she first met him on an escort website and how Mr. Hirani made her feel like a “cheap whore.” She eventually said that Mr. Hirani offered her far less money than she made from her other “dates.” [ 87 ] Ms. Tinkler’s evidence was internally inconsistent.

She testified to having a plan to steal Mr. Hirani’s car behind Ms. Ogle’s house. She then purported to be surprised when events took a turn and they all drove away in that car. Her claim to have a plan to simply take Mr. Hirani’s car key from him, with no further plan, makes no sense. [ 88 ] The most troubling aspect of Ms. Tinkler’s testimony in this trial is that she disclosed a new version of events the day before she was scheduled to testify. She testified to a somewhat modified version of that new version. Ms. Tinkler’s story about being angry at Mr.

Hirani and wanting to “teach him a lesson” by robbing him emerged for the first time in this trial. [ 89 ] Also, for the first time, Ms. Tinkler admitted to being awake and aware of what was going on inside Mr. Hirani’s vehicle when the trio were robbing him. Ms. Tinkler described, for the first time, her observations of what happened when the vehicle stopped “a couple of times” and when it stopped the last time, when Mr. Hirani was removed from the vehicle and killed. [ 90 ] Ms. Tinkler’s decision to provide new evidence in this trial was made more troubling by her conduct during cross examination.

She first became noticeably angry and frustrated when confronted with some of the lies that she told police in her earlier statements. She later refused to answer any questions. Only after speaking with her former defence counsel, and under the threat of being held in contempt of court, did Ms. Tinkler choose to resume her participation in this trial. That “participation” mostly consisted of shrugging and answering “sure” to most questions put to her. When asked what she meant by “sure,” Ms.

Tinkler answered, “whatever you want it to mean.” [ 91 ] This conduct largely continued when cross examination resumed the next day, although Ms. Tinkler denied any suggestion that she was trying to protect Mr. Christal when she lied in his trial or that she was trying to falsely implicate Mr. Daignault now. Ms. Tinkler explained her decision to tell this version of events now because she “wasn’t ready to talk about it before.” [ 92 ] Ms.

Tinkler’s refusal to answer questions, and her general non-responsiveness during cross examination, rendered it impossible for the Defence to conduct a meaningful cross examination. Ms. Tinkler’s refusals to meaningfully answer questions were mostly in relation to her earlier inconsistent statements to police, the inconsistent sworn evidence she gave in Mr. Christal’s trial, and the new version of events she gave in this trial. In other words, the Defence was unable to meaningfully cross examine Ms.

Tinkler on the very issues critical to challenging her credibility, other than to point out that she gave different versions of events at different times. [ 93 ] Ms. Tinkler testified in this trial a couple of days after Mr. Christal testified. This means the Defence had no opportunity to assess Ms. Tinkler’s newest version of events by putting that version to Mr. Christal.

[ 94 ] Because Ms. Tinkler’s and Mr. Christal’s evidence is the only direct evidence that places Mr. Daignault at the scene of Mr. Hirani’s death, there is no other available evidence against which Ms. Tinkler’s newest version of events can be assessed. [ 95 ] Without meaningful cross examination, and without any other way to test the veracity of Ms. Tinkler’s testimony, this new evidence, about the plan to rob Mr. Hirani and her various observations when the car stopped, is untested. This clearly engages Mr. Daignault’s fair trial rights and his right to make full answer and defence.

For these reasons, I will give no weight to these aspects of Ms. Tinkler’s testimony. [ 96 ] Like Mr. Christal’s, I must approach Ms. Tinkler’s evidence with extreme caution. She admittedly lied to police and lied under oath when she testified to these same events during Mr. Christal’s trial. I have little confidence that she would choose to tell the truth now in this trial. D. Evidence confirming the Vetrovec Witnesses 1. Consistencies between the evidence of the two Vetrovec witnesses [ 97 ] Mr. Christal and Ms. Tinkler were consistent on the following points: 1.

They were at the Reagle Beagle pub on McLeod Trail on December 28-29, 2019, an hour or so before they were together again in Mr. Hirani’s vehicle in the alley behind Ms. Ogle’s house. 2. Ms. Tinkler made plans with someone else while they were at the Reagle Beagle. 3. Mr. Christal and Ms. Tinkler did not leave the pub together. 4. Mr. Daignault was driving Mr. Hirani’s car when they left Ms. Ogle’s residence. 5. Mr. Daignault was involved in the robbery of Mr. Hirani. 6. Mr. Daignault continued to drive Mr. Hirani’s car after Mr. Hirani was killed and left on the side of the road. 7.

Sometime around 3:00 a.m., they stopped at a 7-Eleven, where Ms. Tinkler went inside and made some purchases and possibly withdrew some cash with Mr. Hirani’s bank cards. 8. Mr. Christal drove Ms. Tinkler and Mr. Daignault to the Horseman Hotel, in Airdrie, a couple of days after Mr. Hirani was killed. 9. Mr. Christal did not stay at the Horseman. [ 98 ] There is no evidence to suggest Mr. Christal and Ms. Tinkler colluded in the aspects of their respective evidence that corroborate the other. 2.

Independent confirmatory evidence [ 99 ] Closed-circuit television (“CCTV”) video from the Reagle Beagle pub and viva voce evidence from a server at the pub confirm that Mr. Christal and Ms. Tinkler arrived at the Reagle Beagle around 11:30 p.m. on December 28, 2019, and stayed for about an hour. A debit receipt shows their bill was paid at 12:17 a.m., after which Mr. Christal left alone. There is no independent evidence about whether Ms. Tinkler left before or after Mr. Christal. [ 100 ] CCTV video from two gas stations on McLeod Trail reveal Mr.

Hirani purchasing a package of cigarettes and a box of condoms around 12:30 a.m., on December 29. Ten minutes later, CCTV video from a liquor store shows Ms. Tinkler and Mr. Hirani inside the store. Ms. Tinkler selected a box of Twisted Tea and a box of peach liquor. Mr. Hirani paid for these items. [ 101 ] Ms. Ogle testified that Ms. Tinkler and a gentleman, she later identified as Mr. Hirani, arrived at her home later in the evening on December 28. Ms. Tinkler left her purse and some liquor at the residence and then left with Mr. Hirani. Mr. Daignault was not present at Ms. Ogle’s home at this time. [ 102 ] Ms.

Ogle testified in a clear and direct way. Her evidence was not seriously challenged on cross-examination. Other than her being uncertain as to the specific times when certain events took place, I have no real concerns in relation to the reliability and credibility of her evidence. [ 103 ] The evidence of Mr. Hirani making these purchases, along with Ms. Ogle’s testimony, confirms Ms. Tinkler’s evidence that she made plans to meet with Mr. Hirani; that he bought cigarettes and alcohol for her; and that they went briefly to Ms.

Ogle’s residence. [ 104 ] Tire track impressions left on the snowy road, adjacent to the ditch where Mr. Hirani’s body was discovered, are consistent with the tires on Mr. Hirani’s Kia vehicle. The police recovered a cigarette butt from this roadway that contained Mr. Christal’s DNA. [ 105 ] One of Ms. Tinkler’s two cell phones received text messages between 2:25 and 2:50 a.m., on December 29. Cell phone tower records show this phone pinging off towers consistent with that phone being in the area where Mr. Hirani was killed. [ 106 ] The evidence of the tire track impressions, the cigarette butt containing Mr.

Christal’s DNA, and the cell phone tower records confirm Ms. Tinkler’s and Mr. Christal’s testimony that Mr. Hirani was taken in his car to the location where he was ultimately killed; that Mr. Christal discarded a cigarette butt on the road; and that someone in possession of one of Ms. Tinkler’s cell phones was at this location.

[ 107 ] CCTV video from outside of a 7-Eleven store shows a vehicle arrive around 3:30 a.m. and a female exit the front passenger door. From this video, the identity of the vehicle and the female who exited are not clear. [ 108 ] Almost immediately, CCTV video from inside the 7-Eleven reveals Ms. Tinkler enter the store, with her hood up and wearing sunglasses. Bank records show a withdrawal of $403.00 from one of Mr. Hirani’s accounts at this location. The only reasonable inference is that Ms.

Tinkler was the female who exited the front passenger seat of the vehicle that had just arrived. [ 109 ] This video evidence confirms Mr. Christal’s and Ms. Tinkler’s testimony that Ms. Tinkler was in the front passenger seat of Mr. Hirani’s car; that they stopped at a 7-Eleven after Mr. Hirani was killed; and that Ms. Tinkler entered the store and made some purchases or withdrew cash. [ 110 ] Ms. Ogle testified that Ms. Tinkler returned home around 4 a.m., Mr. Daignault was not with her. Ms. Tinkler phoned Ms. Ogle several times, to let her into the house. Ms. Tinkler told Ms. Ogle that Mr.

Daignault had the house key. Cell phone records confirm several phone calls from one of Ms. Tinkler’s phones to Ms. Ogle’s phone around 4 a.m. [ 111 ] Later that morning, Ms. Ogle said that Ms. Tinkler asked her to complete an e-transfer for her. Ms. Tinkler had received an e- transfer from one of Mr. Hirani’s bank accounts in the amount of $500. Ms. Tinkler forwarded this e-transfer to Ms. Ogle, who completed the transaction by depositing the money into her own bank account. Ms. Ogle then went to the bank and withdrew $500; she gave $400 to Ms. Tinkler and kept $100 for herself. Ms. Ogle believed that Mr.

Daignault had returned to her home by the time these events took place. [ 112 ] After giving this cash to Ms. Tinkler, Ms. Ogle believed that Ms. Tinkler and Mr. Daignault went shopping for groceries and laptops. Ms. Ogle recalled seeing laptops and other electronics in her home; she did not recall if she was home when Ms. Tinkler or Mr. Daignault brought these items into her home. [ 113 ] CCTV video from another 7-Eleven shows Ms. Tinkler and Mr. Daignault enter the store around 3:45 p.m., on December 29. CCTV footage from outside the store shows a vehicle that appears similar to Mr.

Hirani’s pull into the parking lot just before Mr. Daignault and Ms. Tinkler entered the store. Mr. Daignault walked from the driver’s side of that vehicle towards the store. Upon leaving the 7-Eleven, Mr. Daignault is seen on video entering the driver’s side of that vehicle. Receipts and bank records confirm purchases made with Mr. Hirani’s bank cards at this location. [ 114 ] A receipt from a Staples store revealed a purchase of a laptop at 5:10 p.m., on December 29, using one of Mr. Hirani’s bank cards. CCTV video stills from that store show Mr.

Daignault exiting the store about 40 minutes later, carrying what appears to be a laptop box. The police located that same Staples receipt inside Ms. Ogle’s home on January 2, while executing a search warrant. [ 115 ] Also located at Ms. Ogle’s residence were boxes for other electronic items and receipts for other purchases, including gift cards. [ 116 ] A receipt from another Staples store revealed more purchases of electronic items at 6 p.m., on December 29, also using Mr. Hirani’s bank cards. CCTV video stills from this store show Ms. Tinkler and Mr. Daignault enter the store together and Ms.

Tinkler at the cash register, making purchases. [ 117 ] Other receipts, banking records, and a statement taken from Mr. Hirani’s wife confirm further purchases and cash withdrawals on December 29 and 30, and that several of Mr. Hirani’s banking passwords had been changed. [ 118 ] The receipts, banking records, and CCTV video footage all confirm Ms. Tinkler’s evidence about her use of Mr. Hirani’s banking information and that she and Mr. Daignault went shopping together after Mr. Hirani’s death. [ 119 ] On December 30, around 6:00 p.m., police were in the area of Ms. Ogle’s residence, looking for Mr.

Hirani’s vehicle, when they were passed by an unknown male driving Mr. Hirani’s vehicle. The officers tried to follow the vehicle, but quickly lost sight of it. A few minutes later, one of the officers engaged in a short foot chase with a man she believed to be Mr. Daignault. This man ran towards, entered, and drove away in Mr. Hirani’s vehicle. [ 120 ] On January 3, Mr. Daignault was arrested in Edmonton. Among the items seized from him were a set of Kia car keys. There is no evidence confirming these were the keys for Mr. Hirani’s vehicle. [ 121 ] On January 13, police located Mr.

Hirani’s vehicle in a parking lot in Calgary. Items seized from that vehicle included RBC and TD banking slips showing cash withdrawals from Mr. Hirani’s accounts on December 29 and a Safeway receipt for the purchase of a gift card on December 30. [ 122 ] The evidence of these receipts located inside of Mr. Hirani’s vehicle corroborates Ms. Tinkler’s evidence that she and Mr. Daignault continued to be in possession of Mr. Hirani’s vehicle after his death. [ 123 ] Ms. Ogle said that she and Ms.

Tinkler were outside of her residence on December 30, having a cigarette, when a police car drove by with its outside spotlight turned on. Ms. Tinkler panicked, went inside, quickly packed some items, and left. [ 124 ] CCTV footage from the Horseman Hotel in Airdrie reveals Mr. Christal’s truck pull into the parking lot at 10:54 p.m. on December 30. Ms. Tinkler walked into the hotel, alone, where she remained for several minutes. By now, Ms. Tinkler had dyed her hair a darker colour. [ 125 ] CCTV footage from inside the hotel captured Ms.

Tinkler apparently texting with someone while speaking with the employee at the front desk. Shortly after 11:00 p.m., Ms. Tinkler walked out of the hotel and back to Mr. Christal’s truck. At 11:16 p.m., the truck left the parking lot. [ 126 ] This video evidence confirms Mr. Christal’s testimony that he drove Ms. Tinkler to the Horseman Hotel a couple of days after

Mr. Hirani was killed and that she entered the hotel, alone. [ 127 ] CCTV footage shows Mr. Christal’s truck return to the Horseman Hotel at 12:35 a.m., on December 31. Mr. Christal and Ms. Tinkler are captured on video inside the hotel for several minutes, apparently looking or waiting for assistance at the front desk. Ms. Tinkler is seen using a cell phone to text and call someone. At 12:43 a.m., Mr. Christal and Ms. Tinkler check into the hotel, with Mr. Christal filling out a room registration form and Ms.

Tinkler using a credit card to pay for the room. [ 128 ] Three people are then captured on CCTV video moving a suitcase and other items from the truck into the hotel. Video stills from inside the hotel show Mr. Daignault near the front desk at 12:51 a.m., and again in the hallway, outside Ms. Tinkler’s rented room, at 5:14 p.m. [ 129 ] At 12:56 a.m., Mr. Christal and Ms. Tinkler are captured on video leaving the hotel and driving away in Mr. Christal’s truck. CCTV video stills show Ms. Tinkler inside a gas station / convenience store and Mr.

Christal outside, refueling his truck. [ 130 ] This video evidence confirms Mr. Christal’s testimony that, after leaving the Horseman Hotel the first time, he picked up Mr. Daignault and returned to the hotel. He and Ms. Tinkler then ran some errands in Airdrie. It further confirms his evidence that he picked up a bunch of Ms. Tinkler’s belongings. [ 131 ] In 2019, Bryce Tempenny had known Mr. Daignault for over 10 years. He testified that, on December 31, Mr. Daignault contacted him by text message. They made plans to meet in person later that day. Sometime around 10:00 or 11:00 p.m., Mr. Daignault and Ms.

Tinkler met with Mr. Tempenny at the residence of another person. Mr. Tempenny observed Mr. Daignault and Ms. Tinkler arrive at this location as passengers in someone else’s car; they had suitcases and other items with them. Mr. Tempenny lent Mr. Daignault his Sebring. [ 132 ] Mr. Tempenny testified in a clear and direct manner. His evidence was not seriously challenged on cross-examination. I have no concerns in relation to the reliability and credibility of his evidence. [ 133 ] Ms. Ogle said that on December 31, Ms. Tinkler and Mr. Daignault returned to her home. Mr.

Daignault was now driving a “teal soft top” car. According to Ms. Ogle, the pair collected the rest of their belongings and left. [ 134 ] The next day, the police recovered Mr. Tempenny’s Sebring, damaged and abandoned, on a road near Nisku, south of Edmonton. Inside the vehicle, the police located a towel and clothing items later identified as belonging to Mr. Daignault and Ms. Tinkler. [ 135 ] On January 3, Mr. Daignault and Ms. Tinkler were arrested in Edmonton. [ 136 ] Ms. Tinkler testified that someone gave her and Mr.

Daignault a ride from the Horseman Hotel into Calgary, where they borrowed someone’s green Sebring, and then went to Edmonton. [ 137 ] Mr. Tempenny’s evidence of lending his Sebring to Mr. Daignault, Ms. Ogle’s evidence of Mr. Daignault and Ms. Tinkler returning to her home, driving a ‘green soft top’, and the arrest of Mr. Daignault and Ms. Tinkler in Edmonton days later, confirms Ms. Tinkler’s evidence. V. Post Offence Conduct Evidence A. Andrew Christal [ 138 ] On December 29, Mr. Christal started using a second, pay-as-you-go, phone (#0279). He continued to also use the phone he had leading up to Mr.

Hirani’s death (#9443). [ 139 ] Mr. Christal said that in the days following Mr. Hirani’s death, he burned the clothes and shoes that he had worn that night. [ 140 ] Mr. Christal told multiple, conflicting stories to the police in his efforts to avoid prosecution for the death of Mr. Hirani. [ 141 ] When Mr. Christal was later in custody at the Remand Centre, he had a phone conversation with a person in which Mr. Christal was recorded saying that the police had seized his phone, but he had already deleted his text conversations with Ms. Tinkler.

In this trial, he insisted that he deleted his entire Facebook account. B. Trista Tinkler [ 142 ] Sometime after Mr. Hirani’s death, in the early morning hours of December 29, and before moving out of Ms. Ogle’s residence, late in the evening on December 30, Ms. Tinkler dyed her hair a darker colour. [ 143 ] Ms. Tinkler also told multiple, conflicting stories to the police in her efforts to avoid prosecution for the death of Mr. Hirani. C. Robert Daignault and Trista Tinkler [ 144 ] Around 6:00 p.m., on December 30, shortly after police officers saw someone driving Mr.

Hirani’s vehicle, Cpl.’s Morin and Evans were parked in the area where they had first seen that vehicle. Cpl. Morin testified that she noticed a male approaching their unmarked police vehicle, on foot, from behind.

[ 145 ] Earlier in the day, these same officers had been involved with gathering some CCTV footage that captured Ms. Tinkler and Mr. Daignault attending at various locations and making purchases. Cpl. Morin had reviewed some of that CCTV footage and had taken some still shots of those images with her phone. When she reviewed those still shots, as the man was approaching their vehicle, Cpl. Morin suspected the man was Mr. Daignault. [ 146 ] The male knocked on the sliding passenger door of the unmarked police van. Cpl.

Morin stepped out of the van and spoke with the male; he asked who or what they were looking for. Cpl. Morin asked the male his name; he answered “Rick.” Cpl. Morin said they were not looking for him. [ 147 ] While interacting with the male, Cpl. Morin’s suspicion strengthened that she was speaking with Mr. Daignault. Within a couple of minutes, the man’s demeanour changed. Cpl. Morin thought he may have realized she was a police officer. The man stepped back, put his hands in his pockets, said words to the effect of “this isn’t happening,” and turned to run. Now firm in her belief the man was Mr. Daignault, Cpl.

Morin told him he was under arrest; she did not tell him he was under arrest for any specific offence. [ 148 ] The man ran back in the direction from which he had approached. Cpl. Morin followed him on foot, while also keeping a safe distance, cautious for her own safety as she was the only officer involved in this foot chase and was considerably smaller in stature than the man. [ 149 ] During this chase, Cpl. Morin repeatedly told the man to stop and that he was under arrest. He did not stop.

As he ran, the man discarded items from his pockets and said words to the effect of “fuck off” and “shoot me.” The police later discovered one of the items he discarded was a shiny Visa gift card. [ 150 ] The man retrieved keys from his pocket as he ran towards Mr. Hirani’s car. He fumbled with the keys, opened the door, and got into the driver’s seat. By now, Cpl. Morin closed the gap and approached the car. With one hand on the open driver’s door and her other hand on her firearm, Cpl. Morin told the man to “not be stupid and get out of the car.” The man said words to the effect that he would either run Cpl.

Morin over or drag her with the car if she didn’t let go. He then drove away, with the driver’s door wide open. [ 151 ] After this interaction, phone records show a flurry of phone calls and text messages between Ms. Tinkler’s two phones, between 6:13 p.m. and 10:36 p.m., on December 30. Cell phone tower records, and other evidence, are consistent with Mr. Daignault using the #5822 phone and Ms. Tinkler using the #2414 phone. [ 152 ] During this time, Mr. Daignault also appeared to be in contact with Mr. Christal between 6:37 and 9:01 p.m., mostly on Mr. Christal’s new #0279 phone. Ms.

Tinkler was then also in contact with Mr. Christal between 9:29 and 10:10 p.m. [ 153 ] The cell phone tower evidence revealed the following: 1. Between 9:52 and 10:07 p.m., the #5822 phone pinged four times from a cell phone tower consistent with that phone being in Airdrie. 2. Between 9:48 and 10:10 p.m., Mr. Christal’s phones pinged 20 times from a cell phone tower consistent with those phones being in Airdrie. 3. Ms. Tinkler’s #2414 phone was pinging from cell towers consistent with being in Calgary during this time. 4. At 10:26 p.m., Ms.

Tinkler’s #5822 phone pinged twice from a cell phone tower consistent with that phone being near 16 Avenue NE, in Calgary. 5. Between 10:33 and 10:46 p.m., this phone pinged seven times from two cell phone towers consistent with being in the area where the police later recovered Mr. Hirani’s vehicle. 6. Between 10:42 and 10:46 p.m., Mr. Daignault and Mr. Christal appeared to exchange a few messages, after which it would appear Mr. Daignault turned off the #5822 phone and Mr. Christal turned off his #9443 phone. [ 154 ] At 10:54 p.m., Mr. Christal and Ms. Tinkler arrived at the Horseman Hotel in Airdrie.

At 12:35 a.m., they returned to the Horseman Hotel, this time Mr. Daignault was with them. [ 155 ] CCTV footage from inside the Horseman Hotel showed Ms. Tinkler with a cell phone in her hand and apparently using that phone for frequent voice and text communications. Where Ms. Tinkler appeared to be using her #2414 phone shortly before arriving at the Horseman Hotel, phone records for this phone show no activity on the #2414 phone during the times that Ms. Tinkler is seen using a phone inside the hotel. It would appear that Ms. Tinkler was by now using a different phone. [ 156 ] While Cpl.

Morin was not able to confirm her belief that the man she chased and tried to arrest was Mr. Daignault, I find the only reasonable inference is Cpl. Morin was correct in concluding the man was, in fact, Mr. Daignault. I make this finding based on the following: 1. The location of Cpl. Morin’s interaction with the male was in close proximity to Ms. Ogle’s residence; 2. The male resembled the videos and photos of Mr. Daignault that Cpl. Morin had reviewed earlier that day; 3. The male discarded an item (the shiny Visa card) consistent with the purchases that Ms. Tinkler had made with Mr. Hirani’s bank cards; 4.

The male drove away in Mr. Hirani’s vehicle; and, 5. Mr. Daignault, Ms. Tinkler, and Mr. Christal were in nearly constant communication from shortly after this interaction until Mr.

Daignault and Ms. Tinkler moved their belongings into the Horseman Hotel six hours later, no longer using Mr. Hirani’s vehicle. [157] When Mr. Daignault and Ms. Tinkler returned to Ms. Ogle’s home, on December 31, Ms. Ogle testified that one, or both, ofthem tried to steal her phone. Ms. Ogle first saw Mr. Daignault holding or handling her phone. When she later noticed her phone wasmissing, and demanded it back, Ms. Tinkler gave the phone back to Ms. Ogle. [158] Cell phone records reveal that on January 2, both of Ms. Tinkler’s phone numbers were cancelled and she started using a newphone number. [159] Mr.

Tempenny testified that when Mr. Daignault asked to borrow his car on December 31, he said he’d located a “BnB” inCalgary and would return the car later that evening. Later, Mr. Daignault told Mr. Tempenny he’d return the car the next day. [160] The implication seemed to be that Mr. Daignault asked to borrow Mr. Tempenny’s car under the guise of moving his and Ms.Tinkler’s belongings into a bed and breakfast in Calgary. Instead, Mr. Daignault drove Mr. Tempenny’s car towards Edmonton where,on January 1, police found it abandoned on a road near Nisku. [161] Cpl.

Morin testified that her investigative steps revealed Mr. Daignault and Ms. Tinkler arrived at a hotel in Edmonton, by taxi,and moved their belongings into a room at that hotel. In booking this hotel room, Mr. Daignault provided a BC driver’s licence bearinghis photo and the name “Zeviar Zale.” [162] On January 3, police in Edmonton planned to arrest Mr. Daignault and Ms. Tinkler at or near the hotel where they were staying.A few blocks north of this location, Cpl. Olfert and Sgt. Kuca were parked in their dark, unmarked, police SUV.

Their intended role wasto provide post-arrest support, including conducting interviews with Mr. Daignault and Ms. Tinkler. [163] While parked, these officers saw Mr. Daignault and Ms. Tinkler walk in front of their vehicle, moving in a direction away fromthe arrest staging area. The officers exited their vehicle, with guns drawn, and told Mr. Daignault and Ms. Tinkler they were under arrest.Both turned to look at the officers and then fled on foot. Before fleeing, Mr. Daignault said words to the effect of “fucking shoot me” ashe reached toward his rear pocket or waistband area. [164] Cpl. Olfert chased Mr.

Daignault on foot. Mr. Daignault ran across a heavily trafficked Gateway Blvd and then through a retail /restaurant area. Cpl. Olfert saw Mr. Daignault running towards a vehicle that was stopped and idling. Mr. Daignault opened the driver’sdoor of that vehicle and either removed the driver, or the driver got out on his own volition. [165] Mr. Daignault was in the driver’s seat of this vehicle when Cpl. Olfert approached and laid hands on him. A scuffle ensued. Mr.Daignault then put the vehicle in reverse, cranked the steering wheel to the right, and quickly reversed in a circle. Mr.

Daignault and Cpl.Olfert were thrown from the vehicle; they both sustained injuries. Cpl. Olfert then pinned Mr. Daignault on the ground and told him,again, he was under arrest. Mr. Daignault said he “wasn’t fighting.” [166] The striking similarity of Mr. Daignault’s conduct on January 3, including challenging the police to shoot him, fleeing on foottowards a vehicle over which he had no lawful possession, and then using that vehicle to threaten violence (or to inflict actual violence)against a police officer, strengthens my confidence that the man Cpl.

Morin chased and tried to arrest on December 30 in Calgary wasMr. Daignault. VI. Relevant Law [167] The Crown alleges Mr. Daignault is guilty of unlawful act manslaughter in relation to the death of Mr. Hirani. A. Unlawful Act Manslaughter [168]

Section 222 of the Criminal Code provides that a person commits homicide when he, directly or indirectly, by any means,causes the death of another person. Subsection (5) defines culpable homicide as including causing death by an unlawful act. Culpablehomicide that is not murder or infanticide is manslaughter: CC 222(5)(a); CC 234. [169] A conviction for manslaughter requires proof beyond a reasonable doubt of conduct causing the death of another person andfault short of intention to kill.

This may involve committing another unlawful act which causes death, often referred to as the predicateoffence. [170] The predicate offence is an unlawful act if it “amounts to an offence at law and it is dangerous if a reasonable person, in thesame circumstances, would realize that the unlawful act would likely put another person at risk of bodily harm in more than a brief orminor way.” An unlawful act is dangerous when, assessed objectively, it is likely to injure another person or to subject another person todanger of harm or injury: R v Hardy, 2017 ABQB 588 at paras 73-74. [171] The actus reus of unlawful act manslaughter requires proof beyond a reasonable doubt that the accused person committed anunlawful act and that the unlawful act caused death.

The Crown must additionally prove the predicate offence beyond a reasonabledoubt. [172] The mens rea of unlawful act manslaughter requires proof beyond a reasonable doubt of an objectively foreseeable risk ofbodily harm that is neither trivial nor transitory, coupled with proof of the mens rea for the predicate offence.

Foreseeability of the riskof death is not required: R v Creighton, (SCC), [1993] 3 SCR 3 at 42-45. [173] To establish an accused person is guilty of manslaughter, the Crown must prove beyond a reasonable doubt that the accused“caused, or significantly contributed to, the victim’s death, that he caused it unlawfully, by an objectively dangerous act.” In other words,the Crown must prove beyond a reasonable doubt that the accused committed the predicate offence and that the predicate offence caused

the deceased’s death: Hardy at para 72. [174] The Crown alleges the predicate offence to Mr. Hirani’s death is robbery. B. Robbery [175]

Section 343 of the Criminal Code defines robbery as: (

a) Stealing, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, use of violence orthreats of violence to a person or property; (

b) Stealing from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes, or usesany personal violence to that person; (

c) Assaulting any person with the intent to steal from him; or (

d) Stealing from any person while armed with an offensive weapon or imitation thereof. [176] The Crown alleges Mr. Daignault was a party to the robbery that ultimately led to Mr. Hirani’s death. C. Parties to an Offence [177]

Section 21 of the Criminal Code provides:

(1) Everyone 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. (2) where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein andany one of them, in carrying out the common purpose commits an offence, each of them who knew or ought to have known that thecommission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [178] The actus reus of aiding is doing something, or omitting to do something, that assists or supports a principal offender to committhe offence.

Mere presence or passive acquiescence at the scene is not sufficient to prove an accused person aided in the commission ofan offence. The Crown must prove the aider did something that facilitated the commission of the offence: R v Briscoe, 2010 SCC 13 atpara 14; R v Dunlop, (SCC) at 892. [179] The aider must also have the requisite mens rea, meaning he must have done something, or omitted to do something, for thepurpose of aiding the principal offender in the commission of the offence. Simply doing, or omitting to do, something that resulted inassisting the principal offender is not enough.

The Crown must prove beyond a reasonable doubt that the principal offender intended tocommit the offence: R v Dubroy-Clement, 2021 ABQB 418 at para 134. VII. Positions of the Parties [180] The Crown urges the court to find that the direct evidence of the two Vetrovec witnesses, together with the independentcircumstantial evidence, leads to only one reasonable conclusion, that: a. Mr. Daignault drove Mr. Hirani’s vehicle while Mr. Hirani’s cell phone, bank cards, and banking information were extracted fromhim; b. Mr. Daignault deliberately drove along and stopped that vehicle on a remote country road where Mr.

Hirani was taken out of thecar and killed; and c. Mr. Daignault then drove Mr. Hirani’s vehicle back to Ms. Ogle’s residence. [181] The Crown argues that by driving to this remote location, in the middle of the night in late December, to abandon Mr. Hirani, atleast, Mr. Daignault must have known that Mr. Hirani faced a significant risk of harm. [182] The Crown further argues that Mr. Daignault’s post offence conduct is only consistent with Mr. Daignault’s guilt in relation tohis participation in Mr. Hirani’s death.

This conduct includes fleeing from Calgary to Edmonton and twice trying to evade capture byfleeing on foot from police. In two separate foot chases, Mr. Daignault challenged the police to shoot him and used vehicles notbelonging to him to inflict, or threaten to inflict, violence against the police. [183] The Defence argues there is insufficient independent evidence capable of restoring any confidence that the two Vetrovecwitnesses are telling the truth about Mr. Daignault’s guilt. Without any independent evidence placing Mr. Daignault at the scene of Mr.Hirani’s death, the Defence urges the evidence of Mr.

Christal and Ms. Tinkler cannot be relied upon to ground a conviction. [184] The Defence further argues that Mr. Daignault’s post offence conduct is equally consistent with a desire to evade arrest and

prosecution for offences arising from being in possession of Mr. Hirani’s vehicle and using his banking information. VIII. Analysis A. Has the Crown Proven the Predicate Offence of Robbery? [ 185 ] There is no dispute that Ms. Tinkler had plans to meet with Mr. Hirani after she left the Regal Beagle shortly after midnight on December 29. From Mr. Hirani’s purchases of cigarettes, condoms, and alcohol, he believed he was meeting Ms. Tinkler for a “date.” [ 186 ] There is also no dispute that what happened instead was Mr.

Hirani was robbed of his car, phone, bank cards, and banking information before ultimately being killed and his body left in a remote area. [ 187 ] The question is whether the Crown has proven that Mr. Daignault was a party to that robbery. For the reasons that follow, I find that Mr. Daignault, together with Ms. Tinkler and Mr. Christal, planned to rob Mr. Hirani and Mr. Daignault participated in the execution of that plan. I come to this conclusion based on the following facts: [ 188 ] On December 28, Mr. Christal and Ms. Tinkler arrived at the Regal Beagle pub shortly before 11:30 p.m.

They left separately, about an hour later. [ 189 ] Within minutes of arriving at the Regal Beagle, Ms. Tinkler and Mr. Daignault engaged in a series of voice and text communications between 11:33 and 11:52 p.m. Cell phone tower records are consistent with Ms. Tinkler using the #5822 phone and Mr. Daignault using the #2414 phone. [ 190 ] Between 12:12 and 12:31 a.m., Ms. Tinkler engaged in a series of text communications with both Mr. Christal and Mr. Daignault. Ms. Tinkler and Mr. Christal were still together at the Regal Beagle for part of this exchange. Ms. Tinkler’s last communication with Mr.

Christal was a text message that she sent to him at 1:31 a.m., after which Mr. Christal turned off his phone. [ 191 ] Between 12:32 and 1:14 a.m., Ms. Tinkler and Mr. Daignault continued to exchange multiple text messages and engage in at least one voice call. Ms. Tinkler’s last communication with Mr. Daignault was a text message that she sent to him at 1:14 a.m., after which she turned off the #5822 phone. [ 192 ] Mr. Hirani picked up Ms. Tinkler from the Reagle Beagle around 12:30 a.m. At 1:13 a.m., his Uber app last registered the location of his vehicle in very close proximity to Ms.

Ogle’s house. [ 193 ] Cell phone tower records are consistent with Mr. Christal’s phone being in the area of the Regal Beagle until 12:23 a.m. Between 12:26 and 12:31 a.m., Mr. Christal’s phone registered off two cell phone towers near Ms. Ogle’s residence. [ 194 ] At 12:35 a.m., Ms. Tinkler’s #2414 phone also registered off a cell phone tower near Ms. Ogle’s residence. [ 195 ] Between 12:45 and 1:20 a.m., both of Ms. Tinkler’s cell phones were registering off two cell phone towers, a few blocks apart, with Ms. Ogle’s residence roughly between those two towers. [ 196 ] Mr. Christal’s evidence that Ms.

Tinkler invited him to Ms. Ogle’s to get high, and that he waited for Ms. Tinkler, repeatedly calling, or texting her for 15 minutes, until she responded by telling him to come to the back yard, does not accord with the cell phone records. [ 197 ] Instead, I find that Ms. Tinkler messaged Mr. Christal when Mr. Hirani picked her up from the Regal Beagle. Mr. Christal then positioned himself at, or near, Ms. Ogle’s residence and turned off his phone. His phone remained off until just before 4:00 a.m. [ 198 ] Ms. Tinkler’s evidence that Mr.

Daignault sent her a text message, and told her to come outside, when she and Mr. Hirani were inside Ms. Ogle’s home, also does not accord with the phone records. [ 199 ] Instead, Ms. Tinkler was in nearly continuous contact with Mr. Daignault for 45 minutes, from the time Mr. Hirani picked her up to the moment she and Mr. Hirani arrived at Ms. Ogle’s home. Ms. Tinkler then turned off the #5822 phone and left it off until after 6:00 a.m. [ 200 ] From these phone communications, the movement of the phones, and the events that followed, I find that Ms. Tinkler, Mr. Christal, and Mr.

Daignault were discussing their plan to convene at Ms. Ogle’s home, and to rob Mr. Hirani, while Ms. Tinkler and Mr. Christal were still at the Regal Beagle. I also find they all came together at Ms. Ogle’s home to carry out that plan. [ 201 ] There is no question that Mr. Hirani was taken from Ms. Ogle’s residence in his vehicle to the remote area where he was ultimately killed. Both Mr. Christal and Ms. Tinkler said that Mr. Daignault was driving Mr. Hirani’s car throughout these events. I find there is sufficient independent evidence confirming this aspect of their respective testimonies.

I make this finding based on the following facts: [ 202 ] Prior to convening at Ms. Ogle’s residence, shortly after 1 a.m., Ms. Tinkler had been using the #5822 phone and Mr. Daignault had been using the #2414 phone. When Ms. Tinkler returned to Ms. Ogle’s residence, shortly before 4:00 a.m., Mr. Daignault was not with her. Ms. Tinkler now used the #2414 phone to repeatedly call Ms. Ogle to let her into the house. [ 203 ] The only reasonable inference is that Mr. Daignault and Ms. Tinkler had been together, at some point during these intervening hours, and Mr. Daignault gave the #2414 phone to Ms. Tinkler.

[ 204 ] Mr. Daignault was captured on video entering the driver’s side of Mr. Hirani’s vehicle, around 4:00 p.m., on December 29. He was observed by police driving that vehicle, around 6 p.m., on December 30. On January 3, he was arrested in possession of Kia keys. There is no evidence to suggest that anyone transferred this vehicle, and its keys, to Mr. Daignault after Mr. Hirani was killed. [ 205 ] Instead, the only reasonable inference that I draw from the evidence of Mr. Daignault’s possession and use of Mr. Hirani’s vehicle on December 29 and 30 is that Mr. Daignault took possession of that vehicle when Mr.

Hirani was taken away from Ms. Ogle’s residence shortly after 1 a.m. on December 29. He remained in possession of that vehicle until sometime after 6 p.m. on December 30, after he fled from Cpl. Morin in that vehicle. [ 206 ] From the evidence of a plan to convene at Ms. Ogle’s residence, together with the evidence of Mr. Daignault driving Mr. Hirani’s vehicle while Mr. Hirani’s phone and banking information were extracted from him, I am satisfied beyond a reasonable doubt that Mr. Daignault actively participated in both planning and executing the robbery of Mr. Hirani. Mr.

Daignault’s participation included deliberately stopping Mr. Hirani’s vehicle on a remote road, where Mr. Hirani was removed from the vehicle and assaulted, presumably with the intention of leaving him there, if not worse. [ 207 ] Having found that Mr. Daignault actively participated in the planning and execution of this robbery, I find the Crown has met its burden of proving the predicate offence. The next question is whether Mr. Daignault knew, or ought to have known, that in carrying out this robbery, Mr. Hirani was at risk of bodily harm. B.

Has the Crown Proven the Objective Foreseeability of Harm? [ 208 ] Mr. Hirani was removed from his vehicle on a remote road, sometime between 1:00 and 3:00 a.m. He no longer had his cell phone nor his bank cards. Had Mr. Hirani been left here, alive, in the middle of winter, he would have been nearly helpless in seeking assistance. [ 209 ] This was an objectively dangerous act from which I am satisfied Mr. Daignault knew, or ought to have known, subjected Mr. Hirani to the danger of harm or injury. On this basis, Mr. Daignault can be convicted of manslaughter. [ 210 ] For the reasons below, I find that Mr.

Daignault’s actions went beyond merely stopping Mr. Hirani’s vehicle on this rural road to abandon him there. [ 211 ] Mr. Hirani was brutally murdered. He was stabbed 39 times. He had fractures to his ribs, sternum, and scapula. His stab wounds included injuries to his head, face, neck, chest, abdomen, upper arms, wrists, and hands. His lungs, heart, diaphragm, and liver were damaged. [ 212 ] These injuries were located on both sides of and across the front of Mr.

Hirani’s neck, on the left side of his head and face, on the back of his left shoulder, on the back of his neck, and on both arms, wrists, and hands. [ 213 ] This was a prolonged attack on Mr. Hirani. From the injuries on both of his arms and hands, it is reasonable to infer that Mr. Hirani tried to defend himself. [ 214 ] From the injuries on both sides of his neck, across the front of his neck, on the back of his shoulder, and back of his neck, it is reasonable to infer that Mr. Hirani struggled to escape and that, in this struggle, he sustained injuries to these multiple areas.

It is also reasonable to infer that someone held Mr. Hirani, to prevent his escape, while someone else repeatedly stabbed him. [ 215 ] Mr. Hirani’s body was left in a ditch, with his torso leaning against a ridge of snow; his arms by his sides; and his legs extended in front of him. He was approximately 5 feet 6 inches tall and weighed close to 200 pounds. The snow in the ditch around his body was heavily disturbed, presumably by footwear. This snow was too deep and too soft to allow the police to recover any definite footwear impressions. [ 216 ] There was heavy blood in the snow in the ditch near Mr.

Hirani’s body; blood on the roadway; and blood in the snow in the opposite ditch. It is reasonable to infer that Mr. Hirani was stabbed somewhere on the road, closer to the opposite ditch. [ 217 ] There is no evidence of Mr. Hirani’s body being dragged across the snow-packed road from where he was stabbed to the opposite side of the road, where he was left in the ditch. It is reasonable to infer that two people carried Mr.

Hirani’s body across the road and placed his body in that ditch, leaving heavy disturbances in the snow around his body. [ 218 ] The police detected footwear impressions on the roadway consistent with two people being outside of Mr. Hirani’s vehicle at the scene of the murder. Only one type of shoe left a distinctive impression. There is no evidence in relation to what shoes Mr. Christal and Mr. Daignault wore that night. [ 219 ] When the police located Mr. Hirani’s vehicle, on January 13, Cpl. Archambeault testified to observing red staining around the front driver’s area.

Hemastix testing was positive for the presumptive presence of blood. Additional testing revealed the presumptive presence of blood on both sides of the back seat; consistent with two people transferring blood into Mr. Hirani’s vehicle. There is no DNA evidence confirming the presence of blood in the vehicle. [ 220 ] On December 30, Mr. Daignault first fled on foot, and then in Mr. Hirani’s car, when a police officer tried to arrest him for an unspecified offence. During this flight, he challenged the police to shoot him and threatened to run over or drag the officer with Mr.

Hirani’s vehicle. [ 221 ] This interaction with police set off hours of phone and text communications between Mr. Daignault, Ms. Tinkler, and Mr. Christal that ended with Mr. Daignault disposing of Mr. Hirani’s car and he and Ms. Tinkler hastily moving out of Ms. Ogle’s residence and into a hotel in Airdrie.

[ 222 ] The next day, Mr. Daignault essentially defrauded his friend of a car and fled to Edmonton with Ms. Tinkler, leaving that vehicle abandoned near Nisku before moving into a hotel in Edmonton under an assumed name. DNA testing was later conducted in relation to the items the police seized from this car. [ 223 ] From the towel, blood was located on four locations. Mr. Daignault’s blood was confirmed at each of these locations. From two of these locations, blood was identified as originating from two other individuals; from a third location, blood was identified as originating from one other individual.

The samples were too weak to allow for any meaningful comparisons. A fifth area of the towel was identified as containing biological material that originated from Mr. Daignault. [ 224 ] From an orange construction-style shirt, Mr. Daignault’s blood was identified on the front upper chest area. From a pair of jeans, Mr. Daignault’s blood was identified on the front upper leg. Blood from a second individual was also located here, with a sample too weak to allow for meaningful comparison. [ 225 ] From what appears to be a woman’s coat, Ms. Tinkler’s blood was located on the sleeve/ cuff area.

This sample was of mixed origin coming from at least three other individuals, at least one of whom was male. The samples were too weak to allow for any meaningful comparisons. This coat appears to be the same one Ms. Tinkler was seen wearing when she and Mr. Hirani were inside a liquor store and when she later entered a 7- Eleven store in the early morn

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