R. v. Wheeler, 2023 NLSC 152

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Wheeler , 2023 NLSC 152 Date : December 1, 2023 Docket : 202101G6724 His Majesty The king v. Michael David Wheeler Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 3-6, 2023; May 23, 2023; June 29-30, 2023; July 5, 2023 and July 25, 2023

Summary: The Accused, an RCMP officer, was charged with careless use of a firearm and pointing a firearm at a person. The Complainant alleged that the Accused pulled his firearm and placed it against her head and then stood and pointed it at her. The alleged events did not occur while the Accused was in the course of his duties but rather while he was in attendance at a social gathering and consuming alcohol. The offences were alleged to have occurred at the residence of a colleague of the Accused, who was at the time in a relationship with the Complainant.

The key issue was whether the offences alleged actually happened. The principal witnesses were the Accused, the Complainant, and the Accused’s colleague who testified for the defence. The Accused and his colleague denied the events alleged happened. Held: The Court did not believe the Accused or the defence witness. Nor did it find the exculpatory evidence raised a reasonable doubt. The Court believed the Complainant. It found the Complainant’s version of events was supported by other evidence. The Crown had proven its case beyond a reasonable doubt and the Accused was found guilty on both counts.

Appearances: Alison J. Manning Appearing on behalf of the Crown John F. Duggan Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Starr, 2000 SCC 40; R. v. Finlay, (SCC), [1993] 3 S.C.R. 103; R. v. Carlos, 2002 SCC35; Williams v. R., 2019 NBCA 51; R. v. C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld.C.A.); R. v. B. (R.W.), [1993] 19 W.C.B. (2d) 260, 40 W.A.C. 1(B.C. C.A.); R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742;R. v. S. (J.H.), 2008 SCC 30; R. v. D.(B.), 2011 ONCA 51; R. v. Cuthill, 2018 ABCA 321; Law Society of Upper Canada v. Neinstein,2010 ONCA 193; R. v.

P. (S.H.), 2003 NSCA 53; R. v. P.(E.J.), 2002 NFCA 24; R. v. D.(D.), 2000 SCC 43; R. v. Alexanian, 2016ONSC 5033; R. v. K.D., 2017 ONCJ 853 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Storage, Display, Transportation and Handling of Firearms byIndividuals Regulations, S.O.R./98-209 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION AND OVERVIEW [1] Michael Wheeler stands charged with two counts. Both counts arise out of the same set of circumstances alleged to haveoccurred on January 23, 2018 on Bell Island, Newfoundland and Labrador. [2] The first count is that Mr.

Wheeler, without lawful excuse, used, carried, handled, transported or stored a firearm in a carelessmanner contrary to Section 86(1) – 86(3)(a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”). [3] The second count concerns allegations that Mr. Wheeler, without lawful excuse, pointed a firearm, at Victoria Sheppard (“Ms.Sheppard”), thereby committing an indictable offence contrary to Section 87(1)-87(2)(

a) of the Criminal Code. [4] Mr. Wheeler is a member of the Royal Canadian Mounted Police (the “RCMP”). At the time of the alleged offences he wasstationed on Bell Island. [5] At the time, Ms. Sheppard resided on Bell Island and was in a relationship with Paul Durdle (“Mr. Durdle”), who was also anRCMP officer stationed on Bell Island. [6] Mr. Wheeler and Ms. Sheppard were friends. Their communications were largely through social media, and in particular,Facebook messenger. [7] It is not disputed that sometime after midnight on January 23, 2018, at the end of a work shift, Mr. Wheeler visited theresidence of Mr.

Durdle. Ms. Sheppard was there at the same time. That night was the only time all three of them socialized together atMr. Durdle’s residence. [8] Mr. Wheeler arrived at the residence, wearing his RCMP uniform. Mr. Wheeler and Ms. Sheppard agree Mr. Wheeler waswearing his equipment belt which included his firearm.

[ 9 ] Ms. Sheppard and Mr. Wheeler acknowledge they were drinking alcohol that evening. For the majority of the evening, they sat next to each other on a couch in the living room. [ 10 ] Ms. Sheppard and Mr. Wheeler acknowledge that during the evening they engaged in wrestling with one another. According to Ms. Sheppard, during the wrestling interactions, and while Mr. Durdle was out of the room, Mr. Wheeler placed his firearm against her face and then stood up and pointed it at her. At that point, Ms. Sheppard says, Mr. Durdle returned to the room, told Mr. Wheeler to stop and pushed his arm down. [ 11 ] Mr.

Wheeler denies he put a firearm against Ms. Sheppard’s face or pointed it at her. In fact, he denies he removed his firearm from the holster at any time during the evening. Mr. Durdle denies seeing Mr. Wheeler pointing a firearm or that he intervened as alleged. [ 12 ] With respect to the first count – the breach of section 86(1) - the Crown confirmed when this charge was laid it was for careless use of a firearm based on the allegation of Mr. Wheeler having placed the firearm against Ms. Sheppard’s face. [ 13 ] Mr.

Wheeler testified that during the evening, he laid his equipment belt, which included the loaded firearm in the holster, on the floor of the living room. The Crown was not aware of this before Mr. Wheeler testified. The Crown takes the position that placing the firearm on the floor in a room where people were drinking, including Ms. Sheppard who Mr. Wheeler testified was intoxicated, constitutes careless storage of the firearm. [ 14 ] Therefore, the Crown submitted that if Mr.

Wheeler were found not guilty of careless use of the firearm, he should be found guilty of the section 86(1) offence on the basis of careless storage of the firearm. [ 15 ] The indictment was worded broadly enough to capture careless “storage” of a firearm. Mr. Wheeler was only charged however with one violation of section 86(1). The indictment was not amended to include an additional charge. Therefore, Mr. Wheeler cannot be found guilty under this single count of both careless use and careless storage. Of course, should the necessary elements of either offence not had been made out, Mr.

Wheeler would be acquitted of this charge altogether. [ 16 ] Mr. Wheeler does not contend that he had a lawful excuse for the alleged offence of careless use of the firearm or the offence of pointing the firearm. The defence is simply that Ms. Sheppard’s allegations are false; he did not hold the firearm to her face or point it at her. Ms. Sheppard, the Defence submitted, is not credible and should not be believed. [ 17 ] With respect to careless storage, Defence Counsel submitted that Mr.

Wheeler’s actions in placing the firearm on the floor in its holster did not amount to careless storage. the Burden of Proof [ 18 ] A fundamental hallmark of our criminal justice system is the principle of the presumption of innocence. Every individual who is charged with a criminal offence is presumed to be innocent unless and until that person is proven guilty beyond a reasonable doubt. [ 19 ] The presumption of innocence means Mr. Wheeler has nothing to prove. The burden always remains with the Crown to prove each element of the offences charged beyond a reasonable doubt. [ 20 ] In R. v.

Starr , 2000 SCC 40 , at paragraph 242 , the Supreme Court pointed out that the Crown’s burden of proof beyond a reasonable doubt lies “much closer to absolute certainty than to proof on a balance of probabilities.” disposition [ 21 ] For the reasons that follow, I find Mr. Wheeler guilty of both counts. [ 22 ] I find that the Crown has proven beyond a reasonable doubt that Mr. Wheeler, without lawful excuse, used a firearm in a careless manner by placing it against Ms. Sheppard’s face. I find Mr.

Wheeler guilty of the first count on this basis. [ 23 ] As such, there is no need for me to make a determination of the Crown’s alternative submission that a breach of section 86(1) occurred on the basis of careless storage of the firearm. [ 24 ] With respect to the second count, I find the Crown has discharged its onus in establishing beyond a reasonable doubt that Mr. Wheeler, without lawful excuse, pointed a firearm at Ms. Sheppard contrary to section 87(1) of the Criminal Code . [ 25 ] I will explain my decision beginning with a

summary of the evidence.

Summary of the Evidence Exhibits – Documentary Evidence [ 26 ] Although I have considered all of the documentary evidence in reaching my decision, there are two exhibits that I include substantive portions of at this point to assist in the understanding of the evidence

summary and analysis that follows.

(1) Mr. Wheeler’s Statement of May 29, 2020 [ 27 ] A Serious Incident Response Team (“SIRT”) investigation was launched to investigate Ms. Sheppard’s allegations. Sgt. Mark Abbott of the Royal Newfoundland Constabulary (the “RNC”) was the initial investigator followed by Insp. Stephen Knight. [ 28 ] On May 29, 2020, after consulting with his then lawyer, Mr. Wheeler provided a written statement for the purposes of the SIRT investigation. The prelude to the statement states that Sgt. Knight had advised the allegations against Mr. Wheeler consisted of him

attending Mr. Durdle’s residence in late January of 2018 and while there drawing his service firearm and placing it against the face of Ms. Sheppard and standing up and pointing it at her head. Mr. Wheeler was advised he was facing possible charges of assault with a weapon and careless use of a firearm. [ 29 ] The statement is not long. The portions capturing Mr. Wheeler’s account of the evening are as follows: I first met Ms. Sheppard during an unrelated police file in [sic] which I had responded to; this was likely in 2016 or 2017.

I have had several face-to-face interactions with her in the public since first meeting her. I was at Cst. Durdle’s residence in the presence of Ms. Sheppard within the time-frame of the allegations [sic] was during the evening of a night shift in which I was working alone on Bell Island and I was contacted by Cst. Durdle asking if I would like to drop by his residence, this was very common as there were usually just two members on the island, and most of the time you were alone. I arrived at Cst. Durdle’s residence in my police uniform and approximately between 12:00-2:00 A.M. and Ms.

Sheppard was present, she was visibly intoxicated and was louder and more boisterous then I was accustomed to seeing her. There were only three of us present in the residence during my visit. The residence was a very small one-level house with the main area consisting of an adjoining kitchen, dining room, and living room area. I consumed 2-3 single-sized drinks throughout the evening, I was not intoxicated at any point and maintained a normal state of mind along with all my faculties. When I first entered the residence I sat on a couch with Ms.

Sheppard to my right, at this point I was still in full police uniform. Several times Ms. Sheppard brushed up against my gun on my side with the side of her body as we were sitting very close together, she mentioned several times how weird it was to be sitting near a gun and she appeared to be uncomfortable near it. The first time that Ms. Sheppard brushed off of my gun I made a motion with my arm toward my side in jest, she paused for a second, realized I was joking, and then smiled. During my visit both Cst. Durdle and Ms. Sheppard were in my company except for brief bathroom breaks and or Ms.

Sheppard exiting the residence to have a cigarette on the rear porch. I stayed at Cst. Durdle’s residence for approximately 2 hours and I would consider the visit to be unremarkable; at no point in time did I threaten, intimidate or point my service pistol at Ms. Sheppard nor was there any conflict and I left on very good terms; I had not thought of that evening again prior to being contacted by Sgt. Abbott. The allegations made by Ms. Sheppard describe actions that are far outside the range of my character. I have had dozens of conversations with Ms.

Sheppard since this alleged incident, most of which were initiated by her, and she has not mentioned it to me once. We have remained on good terms as she has referred to me as her BFFL (Best friends for life) as late as June, 2019. I have never had a negative interaction with Ms. Sheppard. (2)Facebook Messages between Mr. Wheeler and Ms. Sheppard [ 30 ] Insp. Knight obtained a warrant to search Ms. Sheppard’s Facebook messages between January 23, 2018 and February 12, 2018. [ 31 ] The results of that search were admitted into evidence as a consent exhibit. It was acknowledged by Mr.

Wheeler that he is “Mike Whee” in the messages that follow [1] : January 23, 2018 Mike Whee: 4:51 A.M. Wtf Mike Whee: 4:51 A.M. Come back Mike Whee: 4:52 A.M. In German ootsin poopie ul itZ

Mike Whee [blank no message] Victoria Sheppard: 4:57 A.M. No man he does this every time someone’s around Mike Whee: 5:40 A.M. Bitch Mike Whee: 5:40 A.M. Pork Mike Whee: 5:40 A.M. Bitch blanket bitch Victoria Sheppard: 6:30 A.M. You love me [emoji] Mike Whee: 6:43 A.M. Kill me Victoria Sheppard: 6:45 A.M. I see some jealously going on here [emoji?] Mike Whee: 6:45 A.M. [blank no message] Victoria Sheppard: 6:56 A.M. Be nice to me! Mike Whee: 6:56 A.M. Hah no Mike Whee: 6:57 A.M. I have no intention past my fA.m.ikt Victoria Sheppard: 7:05 A.M. I didn’t mean you silly

Victoria Sheppard: 2:20 PM You left a few bruises on my arm Mike Whee: 2:30 PM Wasn’t me Victoria Sheppard: 3:57 PM Nope definitely not [emoji] Victoria Sheppard: 3:58 PM Alicee called flipping out this morning Mike Whee: 3:58 PM Fuck I told Durdle last night I wasn’t coming to his house cause I didn’t want to be drinking or up late and look wtf happened Mike Whee: 3:58 PM My misses was flipping at me when she picked me up at the boat Mike Whee: 3:59 PM Haha what was Alicee angry about? Victoria Sheppard: 3:59 PM Are you surprised.

Always drinking and up all night at Durdle’s Mike Whee: 3:59 PM Yeah I know that’s why I don’t wanna go [Messaging continues between them on Jan. 23, 2018 from 3:59 p.m. to 5:11 p.m. in which they are discussing issues about Mr. Durdle’s relationship with another woman. There is further messaging between them on the same topic on January 24, 2018 from 1:11 p.m. to 1:29 p.m. I have not reproduced these messages here] January 25, 2018 Victoria Sheppard: 10:17 PM IP Address: 142 162 106.91 Victoria Sheppard: 10:17 PM You totally relate to him and the microbes

January 30, 2018 Mike Whee: 7:10 PM Hey douche – Paul told me I freaked you out the other night!! Sorry!! :). But to ease your mind it was all safe – I guess I’m a little more comfortable around my gear then I should be :). Weird shit always happens with me on nights like that as you know [emoji] [2] Mike Whee: 7:11 PM ** youtube link ** Mike Whee: 9:57 PM Haha I just watched that video you sent. It’s true – beware the path of the microbe world Victoria Sheppard: 10:23 PM No worries [emoji] Spaceman. I forgive you! Mike Whee: 10:25 PM Haha fuck I’m stupid hey?

You have no idea what kinda stupid shit I’ve gotten myself into over the years Mike Whee: 10:25 PM I’d write a book if I could remember any of it Victoria Sheppard: 10:28 PM The bruises are almost gone now! Haha asshole. You were pretty drunk. It’s cool. I didn’t say anything cause I didn’t want it to be awkward and I don’t want you to think you’re not wanted around. We love hanging with you. You know that.

Mike Whee: 10:46 PM I’m pretty used to people telling me I’ve done stupid shit while drinking so don’t hold back :) Fuck no wonder I had quit drinking – I wasn’t even going to drop over cause I knew that shit would happen. I was supposed to get an early boat out. [The next messaging between them is 11 days later on February 11, 2018 and is initiated by Ms. Sheppard. These communications continue into February 12, 2018 and concern unrelated issues with others]. Testimony Crown Witnesses Cst. Wes Welcher [ 32 ] Cst. Welcher is a member of the RNC. On October 9, 2019, he met with Ms.

Sheppard to obtain a statement from her regarding an assault allegation made by Mr. Durdle against her. After interviewing her, Cst. Welcher told Ms. Sheppard she was free to go. He would not be laying a charge. Before Ms. Sheppard left the interview, she asked Cst. Welcher if she could tell him something. [ 33 ] Cst. Welcher did not take a statement from Ms. Sheppard. He did however make notes of what she relayed to him. He testified that she described an incident that happened a year or more ago at Mr. Durdle’s residence while they were drinking one evening. Based on his notes, Cst. Welcher recalled Ms.

Sheppard’s account as follows:

Mr. Wheeler arrived at the residence in his police uniform and began drinking with them. They were joking around and having fun. Mr. Durdle left the area and went into the kitchen. Mr. Wheeler then went over to Ms. Sheppard, put her in a headlock in a playful manner. She slipped out of the headlock and said she was tough. Mr. Wheeler then pulled out his firearm and pushed it against her face . Ms. Sheppard laid on the couch with her face sideways. She was crying and terrified. Then Mr. Wheeler said words to the effect, “Why are you crying? You’re not so tough now.” Mr.

Durdle came into the room and saw what was happening. He yelled at Mr. Wheeler, “What are you doing?” and pushed his arm away. Ms. Sheppard got up and ran down the street. [ 34 ] Cst. Welcher understood from Ms. Sheppard that after the incident, Mr. Durdle was not happy with Mr. Wheeler and asked him to apologize. [ 35 ] Cst. Welcher also recalled that Ms. Sheppard mentioned having text messages from Mr. Wheeler and Mr. Durdle about the incident. She was not able to provide them at that time. [ 36 ] Cst. Welcher’s impression was that Ms. Sheppard was hoping he would not bring this forward.

She had told a close friend but nobody else about it. She did not want to get anyone in trouble. Cst. Welcher felt however that an officer in uniform drinking, pulling his firearm and pointing it at someone shocked him. He felt the allegations were serious and needed further investigation. Sgt. Mark Abbott [ 37 ] Sgt. Mark Abbott is a member of the RNC. On November 8, 2019, he was assigned the SIRT investigation into the information disclosed to Cst. Welcher. [ 38 ] Sgt. Abbott first contacted Ms. Sheppard on November 12, 2019. She was hesitant to speak to him.

He explained the seriousness of the situation but could not force her to cooperate. She needed a few days to think about it. [ 39 ] Sgt. Abbott detailed his efforts to try and contact Ms. Sheppard including three appointments having been set with her and Ms. Sheppard not keeping them. Ms. Sheppard would get back to him occasionally but overall, he felt she was avoiding him. [ 40 ] Ms. Sheppard sent Sgt. Abbott an email dated November 20, 2019. In it, she wrote that she was not ignoring him. She did not want an investigation. She felt she had a private conversation with Cst. Welcher.

She wrote that she had gone back through her messages and the message was vague and did not mention details of the incident. Ms. Sheppard described the message as an apology from Mr. Wheeler and a statement that “everything was safe.” The email Ms. Sheppard sent to Sgt. Abbott continued as follows: It is coming up on 3 years ago this winter… I have too much currently going on and I do not feel as though I need to fear for my safety or reopen something that could potentially ruin the officer’s career and life or that grudge held against myself.

I have had conversations online with the officer since and consider him a friend. A friend who made a real stupid decision while drinking. I believe he knows that. [ 41 ] In Ms. Sheppard’s reference to the messages, Sgt. Abbott assumed that she meant text messages and he understood she had text messages between Mr. Wheeler and Mr. Durdle regarding the incident. She did not provide any such messages to him. [ 42 ] On December 10, 2019, Ms. Sheppard gave an audio and visual interview with Cst. Nicole Percy of the RNC. Sgt. Abbott monitored the interview. Ms. Sheppard declined to tell her story.

She would not confirm any information regarding the incident or when it happened. Ms. Sheppard also stated that she did not have text messages. She did state however that while she wanted to do the right thing it was not the right thing to do for now. Mr. Wheeler was a friend of hers and he had children. Mr. Durdle was her ex-partner. She had no interest in proceeding with the investigation. [ 43 ] On December 27, 2019, at 10:52 a.m., Sgt. Abbott contacted Mr. Durdle. He refused to give a statement and would not cooperate. He said the allegations did not happen. He also said that he and Ms.

Sheppard were going through a nasty separation and she may be suffering from mental illness. [ 44 ] Sgt. Abbott contacted Mr. Wheeler at 10:59 a.m., a few minutes after speaking with Mr. Durdle. Mr. Wheeler was surprised. He would not provide a statement. He said he had nothing to gain from it and he would not change his mind. [ 45 ] Given the lack of cooperation by Ms. Sheppard, Mr. Wheeler and Mr. Durdle in not providing statements, Sgt. Abbott felt he had no grounds to continue the investigation. He submitted a report recommending no further action. [ 46 ] Sgt.

Abbott raised a number of concerns in his report as to why in his view, at that time, there were no reasonable and probable grounds for charges. These included challenges when attempting to get a warrant to seize Ms. Sheppard’s cell phone; Ms. Sheppard’s confusion regarding when the alleged incident happened; Ms. Sheppard had not saved the text messages; and the message Ms. Sheppard did have was an apology and statement that everything was safe. [ 47 ] After submitting his report, Sgt. Abbott’s supervisor asked him to explore the possibility of getting a warrant to seize Ms.

Sheppard’s cell phone. [ 48 ] On February 27, 2020, Mr. Wheeler contacted Sgt. Abbott for a status update. Sgt. Abbott advised Mr. Wheeler the file was concluded on his end and that there were no grounds to move forward. Sgt. Abbott did not have a statement from Ms. Sheppard. If they obtained additional information, his role was to continue to investigate. Sgt. Abbott noted that things change all the time in the course of an investigation. [ 49 ] On March 2, 2020, Mr. Wheeler called Sgt. Abbott for an update on the file. He advised Mr. Wheeler the matter was still under investigation.

Sgt. Major Trevor Baldwin [ 50 ] Sgt. Major Baldwin is a member of the RCMP. In 2020, he was with the unit responsible for conducting internal Code of Conduct reviews. The Code of Conduct is a set of rules under the Royal Canadian Mounted Police Act , R.S.C., 1985, c. R-10 (the “ RCMP Act ”) regarding the behavior of members or officers. [ 51 ] On January 14, 2020, Sgt. Major Baldwin was assigned a Code of Conduct file regarding the incident that Ms. Sheppard relayed to Cst. Welcher. [ 52 ] Mr. Wheeler was not obliged to give a statement because he was the subject member. [ 53 ] Sgt. Major Baldwin contacted Mr.

Durdle and informed him that as a member witness under the RCMP Act he was compelled to provide a statement. [ 54 ] Mr. Durdle was extremely reluctant to give a statement. Sgt. Major Baldwin gave Mr. Durdle warnings that if he did not give a statement he would be ordered to do so by the commanding officer. He found Mr. Durdle’s response to be very strange. Even though he had a past good working and personal relationship with Mr. Durdle, the interaction in trying to get him to give a statement was very abrasive.

In his experience in taking member witness statements, it is the only time a witness member was reluctant. [ 55 ] On February 4, 2020, Sgt. Major Baldwin obtained a statement from Mr. Durdle. Mr. Durdle was upset during the interview. He was upset that the RNC had not charged Ms. Sheppard with assault. He further advised that he was in a custody dispute with Ms. Sheppard. Mr. Durdle repeatedly said the allegations by Ms. Sheppard were false. [ 56 ] Sgt. Major Baldwin had a couple of conversations with Ms. Sheppard prior to ultimately taking a statement from her on February 24, 2020.

He called her on February 2, 2020 because she had not shown up for an interview. On February 6, 2020, she called him and offered an explanation. A further interview time was set for February 10, 2020 but she cancelled that interview. On February 13, 2020, he placed several calls to her. [ 57 ] Sgt. Major Baldwin said that Ms. Sheppard always provided a plausible rationale of why she did not attend when scheduled. She had childcare issues and there was another time when weather played an issue. [ 58 ] Sgt. Major Baldwin acknowledged that Ms. Sheppard was extremely reluctant to participate in the process.

They spoke at length about why she was reluctant. Ms. Sheppard said that Mr. Durdle and Mr. Wheeler were both police officers. She was friends with Mr. Wheeler. She had a relationship with Mr. Durdle; they had a child together. [ 59 ] On February 24, 2020, Sgt. Major Baldwin met with Ms. Sheppard to obtain a statement from her. At first, she did not want to provide a statement. On the form he used for the interview, he initially ticked “no” in terms of Ms. Sheppard’s willingness to participate. [ 60 ] Sgt. Major Baldwin testified that it took 24 minutes to make Ms.

Sheppard feel comfortable and to build a rapport with her before she finally agreed to give a statement. On cross-examination, he acknowledged that at several times he told Ms. Sheppard that her kids could have been orphaned the night of the incident. [ 61 ] In her statement, Sgt. Major Baldwin testified that Ms. Sheppard provided a full account of what happened that night. [ 62 ] Ms. Sheppard provided Sgt. Major Baldwin with screenshots of the Facebook messages dated January 30, 2018 between her and Mr. Wheeler. Sgt. Major Baldwin believed the messages completely corroborated Ms.

Sheppard’s account of what she said happened. [ 63 ] Sgt. Major Baldwin testified that Ms. Sheppard said there were other text messages. She had all the messages and texts but had issues with her phone and was unable to retrieve some of them. He was asked on cross-examination why he did not follow up to get the messages. Sgt. Major Baldwin replied that once the criminal investigation recommenced, his investigation was held in abeyance. He was aware the RNC were taking steps to get messages. [ 64 ] Towards the end of the statement, Ms.

Sheppard again expressed she felt conflicted because she had a relationship with Mr. Durdle and was friends with Mr. Wheeler. Ms. Sheppard acknowledged she had avoided Sgt. Abbott “like the plague.” [ 65 ] The RNC asked Sgt. Major Baldwin to obtain dates and times for shifts and on-call times for both Mr. Wheeler and Mr. Durdle. It was determined that the alleged incident occurred January 23, 2018 . Sgt. Major Baldwin confirmed the RCMP records show Mr. Wheeler worked January 22, 2018 from 4:00 p.m. until midnight. Mr. Wheeler was then on-call until 6:00 a.m. on January 23, 2018. Mr. Durdle was off that date.

Inspector Steve Knight [ 66 ] Insp. Stephen Knight is a member of the RNC. On March 2, 2020, he took over from Sgt. Abbott as the SIRT investigator into this matter. [ 67 ] Sgt. Major Baldwin provided him with copies of the statements given by Ms. Sheppard and Mr. Durdle in the Code of Conduct investigation. Insp. Knight also obtained a copy of the Facebook message screenshots that Ms. Sheppard had provided.

[ 68 ] On April 15, 2020, Insp. Knight met with Ms. Sheppard at her residence. She confirmed the statement she had given to Sgt. Major Baldwin but she did not want criminal charges laid. She feared the officers would lose their jobs. Mr. Durdle was the father of her child and Mr. Wheeler also had a family. [ 69 ] Insp. Knight told Ms. Sheppard there might be issues with child custody if she did not tell the truth. He warned her that credibility is everything. [ 70 ] Ms. Sheppard was reluctant to give him a statement. She would think it over and get back to him. [ 71 ] On May 5, 2020 at 2:15 p.m., Ms.

Sheppard attended at RNC headquarters and provided a recorded statement. She provided a shorter follow up statement on May 28, 2020. [ 72 ] Sgt. Knight acknowledged that Ms. Sheppard never came forward and said she wanted to file a complaint. Insp. Knight said Ms. Sheppard acknowledged she had an ongoing friendship with Mr. Wheeler. She consistently spoke highly of him. She considered him a confidant and close friend. [ 73 ] Ms. Sheppard said in her statement that she had left the house after the incident and Mr. Durdle called her to return as she had been drinking. The RNC obtained a production order for Mr.

Durdle’s cell phone. They checked for telephone calls between Mr. Durdle and Ms. Sheppard on January 23, 2018. The cell phone records did not corroborate that a call had occurred between them at that time. [ 74 ] Insp. Knight spoke to Ms. Sheppard about this. She said that was her recollection. Insp. Knight said Ms. Sheppard did not try to backtrack. That was how she remembered it. [ 75 ] It was raised with Insp. Knight on cross-examination that during the taking of Ms. Sheppard’s statement, one of the officers warned Ms.

Sheppard that she could be cross-examined down the road regarding a portion of her statement. This concerned her having stated Mr. Durdle was in the kitchen mixing drinks before returning to the living room, seeing what was happening, and pushing Mr. Wheeler’s arm down. Ms. Sheppard did not recall in her statement whether Mr. Durdle was carrying drinks, or what happened to the drinks. Ms. Sheppard said he may have been coming back into the room to inquire whether they wanted drinks. [ 76 ] It was put to Insp. Knight that the police were suggesting there was a potential hole in Ms. Sheppard’s evidence. Insp.

Knight agreed that they were telling Ms. Sheppard she needed to think about this aspect of her evidence. [ 77 ] Insp. Knight also acknowledged on cross-examination that Ms. Sheppard repeatedly said in her statement that she had been drinking and was drunk during the incident. [ 78 ] Insp. Knight found Ms. Sheppard to be credible but they wanted to corroborate her story. Ms. Sheppard was not sure of dates. The screenshots of the Facebook messages gave them a starting point. Insp. Knight sought and obtained a warrant to get the Facebook messages between Mr. Wheeler and Ms.

Sheppard between January 23, 2018 to February 14, 2020. He felt to go too far beyond that period would be too broad and the warrant would not be granted. [ 79 ] In Insp. Knight’s view, the messages corroborated several points in Ms. Sheppard’s statement. They confirmed that an incident had occurred, that Mr. Wheeler was present in his uniform, and that they were drinking. Further, the messages referenced that Ms. Sheppard sustained bruises. Ms. Sheppard had said in her statement that she and Mr. Wheeler were engaged in horseplay that resulted in bruises to her body. She described Mr.

Wheeler grabbing her in various police positions and she would squirm away. Ms. Sheppard relayed that she made a comment to the effect of Mr. Wheeler not being very good at his job. This seemed to upset him. It was then that Mr. Wheeler took the firearm out of its holster and put it against her face. [ 80 ] It was put to Insp. Knight on cross-examination that Ms. Sheppard never referred to “holster” in her statement. He agreed. She said before she knew the firearm was placed against her face. It was Insp. Knight’s own words that the gun had been taken out of the holster. [ 81 ] Ms.

Sheppard said in her statement that she had told her cousin Ashley Sheppard about the incident. Insp. Knight advised Ms. Sheppard he would need to talk to Ashley. Ms. Sheppard advised that her relationship with Ashley was strained because Ashley was in a relationship with the father of her other children. [ 82 ] Insp. Knight obtained a statement from Ashley Sheppard. She recalled Ms. Sheppard telling her about the incident. [ 83 ] Insp. Knight also approached Mr. Wheeler about providing a statement. He was polite and cooperative but first wanted to consult his lawyer. Mr.

Wheeler’s lawyer at the time wanted more detail of the allegations. Insp. Knight provided the lawyer with a verbal overview. [ 84 ] On May 29, 2020 , Mr. Wheeler’s then lawyer sent an email including a statement from Mr. Wheeler dated May 29, 2020 containing Mr. Wheeler’s version of events. This was read into the record by Insp. Knight and is reproduced above. [ 85 ] The statement confirmed Mr. Wheeler was at Mr. Durdle’s residence, in uniform, and drinking. Otherwise, Insp. Knight did not think the statement was supported by the Facebook messages between Ms. Sheppard and Mr. Wheeler.

For example, the statement said Mr. Wheeler was not intoxicated however, the messages indicated that his level of intoxication was high. [ 86 ] Insp. Knight believed Mr. Wheeler’s statement was referencing the same incident that he apologized for in the Facebook messages. Insp. Knight acknowledged on cross-examination that it could be something other than the incident as described by Ms. Sheppard but that is not his belief. [ 87 ] It was further put to Insp. Knight on cross-examination that perhaps Mr. Wheeler was apologizing for the bruising on Ms. Sheppard’s arm.

He did not agree as the apology message referenced Mr. Wheeler’s gear which Insp. Knight interprets as police

equipment - meaning his firearm. [ 88 ] On cross-examination, Insp. Knight was asked about other Facebook messages between Mr. Wheeler and Ms. Sheppard. With respect to Ms. Sheppard’s message at 4:57 a.m. which states, “No man, he does this every time someone’s around,” Insp. Knight believes Ms. Sheppard is referring to Mr. Durdle. He understood Ms. Sheppard was skylarking with Mr. Wheeler and she referred in her statement to thinking Mr. Durdle was getting a little jealous. [ 89 ] With respect to the messages at 4:51 a.m. on January 23, 2018 by Mr. Wheeler writing, “wtf” and “come back”, Insp.

Knight understood that Ms. Sheppard had left the house around that time. Insp. Knight believed Ms. Sheppard was back in the residence when she sent the last message that morning at 7:05 a.m. to Mr. Wheeler, however he could not be certain. [ 90 ] It was further put to Insp. Knight on cross-examination that Ms. Sheppard had told Cst. Welcher that she had text messages regarding conversations between Mr. Wheeler and Mr. Durdle about the incident. Insp. Knight did not remember it that way. He was not aware there were messages between Mr. Wheeler and Mr. Durdle.

If text messages of that nature had been indicated, he would have attempted to get Mr. Durdle’s messages as well. [ 91 ] Insp. Knight contacted Mr. Durdle twice during the investigation and asked him to give a statement, however he was not willing to do so. Mr. Durdle said he had nothing to gain and he wanted no involvement. [ 92 ] Insp. Knight did not consider the statement Mr. Durdle provided to the RCMP in the Code of Conduct investigation because it was not a voluntary statement. Mr. Durdle did tell Sgt. Abbott however, that the alleged incident did not happen. Insp.

Knight referenced this in his SIRT report. [ 93 ] Upon concluding the SIRT investigation, Insp. Knight believed there were reasonable and probable grounds to move forward with charges for assault with a weapon and careless use of a firearm. He submitted his report with this recommendation. [ 94 ] On cross-examination, Insp. Knight was asked what he meant by “the incident.” He replied that he believes Ms. Sheppard is telling the truth. That is the incident. Victoria Sheppard [ 95 ] Ms. Sheppard testified that at the time of the incident, she had been living on Bell Island.

She was in an on-and-off again relationship with Mr. Durdle. [ 96 ] On the night in question, Ms. Sheppard testified that she and Mr. Durdle were celebrating her birthday at his house. She and Mr. Durdle were drinking together prior to Mr. Wheeler’s arrival. [ 97 ] Mr. Wheeler arrived after his shift ended, sometime between midnight and 2:00 a.m. He was wearing his full police uniform, including his belt with his firearm. During the events of the night, she was sitting in the middle of the couch in the living room. The couch was located against a wall that separated the kitchen from the living room. Mr.

Wheeler sat to her left, while Mr. Durdle was sitting in a different chair on the other side of the room. [ 98 ] After Mr. Wheeler’s arrival, Ms. Sheppard testified he began drinking quickly, as if to “catch up” to Mr. Durdle and herself. She testified Mr. Wheeler continued to drink throughout the night. [ 99 ] Ms. Sheppard said that she and Mr. Wheeler had a playful, teasing relationship. At some point during the night they began “play fighting” or wrestling on the couch. Mr. Wheeler would use a police hold on her, and she would fight to get out of the hold. She felt Mr.

Durdle may have gotten a little jealous while this was happening. Mr. Durdle was present in the room for most of the wrestling, but at times went into the kitchen to mix drinks. [ 100 ] At one point during the wrestling, Mr. Wheeler placed Ms. Sheppard in a headlock from which she had a great deal of difficulty escaping. She testified that both she and Mr. Wheeler got a bit frustrated. Eventually she managed to get out of the hold and laughed. At that point, Ms. Sheppard testified that Mr. Wheeler took out his police firearm and pressed it against the left side of her head. [ 101 ] Ms.

Sheppard testified that she could feel the coldness of the gun and could see the silver of the metal barrel of the gun out of the corner of her left eye. She testified that the barrel of the gun was pointed upwards and held flat against her face. She remembered Mr. Wheeler said, “You’re not so tough now, are you”? She testified that her head was bent to the right and pressed against the back of the couch. Her neck started to hurt. She said nothing. She just stared at the keys hung up on the key rack across the room near the front door. [ 102 ] Ms.

Sheppard could not say with certainty how long this lasted but thought it was between 15 to 20 seconds before Mr. Wheeler stood facing her diagonally, maintained a police stance, and pointed the gun at her. Mr. Durdle entered the room, and said “What the fuck are you doing,” and pushed Mr. Wheeler’s arm down. Mr. Durdle and Mr. Wheeler were having words. She left the house. [ 103 ] Ms. Sheppard got in her car and drove to a nearby parking lot. She realized she should not be driving as she had been drinking.

She saw traffic and figured it was for the first ferry that normally leaves around 5:00 a.m. or 5:30 a.m. depending on the weather. [ 104 ] While Ms. Sheppard was parked, she testified that received calls from Mr. Durdle. When she eventually picked up, he told her to come back. She could hear Mr. Wheeler in the background also telling her to return. Ms. Sheppard testified that she returned to the house through the back door. She did not recall seeing Mr. Durdle nor Mr. Wheeler. She went to bed and fell asleep. [ 105 ] It was put to Ms. Sheppard that search of Mr.

Durdle’s cell phone records did not reveal calls from Mr. Durdle. Ms. Sheppard maintained that was her recollection. She suggested a possible explanation could be that the calls may not have been telephone calls but rather calls on one of the other social media apps that she and Mr. Durdle used regularly in their communication. The police only searched for telephone calls.

[ 106 ] Ms. Sheppard testified that she spoke to Mr. Durdle about the incident the next day and many times afterwards. She relayed that Mr. Durdle told her he would deny it if she ever told anyone this happened. [ 107 ] Ms. Sheppard testified as to the message she sent to Mr. Wheeler the afternoon of January 23, 2018, stating that he had given her a few bruises on her arm. She explained these were in reference to the previous night’s wrestling. [ 108 ] On January 30, 2018, Ms. Sheppard received the apology message from Mr. Wheeler. [ 109 ] Ms. Sheppard testified that she understood that Mr. Durdle had told Mr.

Wheeler to apologize, and this is why Mr. Wheeler sent this message. [ 110 ] Ms. Sheppard acknowledged under cross-examination that the message was somewhat vague, but she had no doubt what Mr. Wheeler was referencing; it was that he had placed the gun against her face and then pointed it at her. [ 111 ] Ms. Sheppard relayed her impression that Mr. Wheeler had made a big mistake, but that she did not want to stop being friends because of it. [ 112 ] Ms.

Sheppard testified that she did not tell anyone about the incident until a few weeks later when she told her cousin, and then good friend, Ashley Sheppard. [ 113 ] On cross-examination, Ms. Sheppard said she told Ashley Sheppard the details of the gun being placed against her face, pointed at her, and Mr. Durdle coming into the room and pushing Mr. Wheeler’s arm down. She had not spoken to Ashley Sheppard about the incident since the start of the criminal investigation. She denied telling Ashley Sheppard anything about her evidence at trial as she understood that was not permitted. [ 114 ] Ms.

Sheppard acknowledged that she had messages between her and Mr. Wheeler in which she asked Mr. Wheeler words to the effect of why he had not put the gun away. These messages were not produced. Ms. Sheppard testified that these may not have been produced because they fell outside the timeframe authorized by the warrant. She also offered that it was too emotional for her to go back and search through their messages. Ms. Sheppard, although having acknowledged the apology message was vague and did not specifically reference the gun, nonetheless thought it was sufficient. To her, that message was Mr.

Wheeler apologizing for the gun incident. [ 115 ] Defence Counsel questioned why Ms. Sheppard did not call emergency services if a gun had been truly pressed to her head. Ms. Sheppard explained that, from her perspective, Mr. Durdle and Mr. Wheeler were emergency services, and to her knowledge there was no other officer on Bell Island at the time. [ 116 ] Ms. Sheppard described many factors that influenced her decision not to come forward with her story afterwards including Mr. Wheeler being her friend and not wanting to get him in trouble. She also said that she was not thinking clearly.

She further admitted that she had concerns for her own welfare, as she drank and drove that night. [ 117 ] Defence Counsel questioned Ms. Sheppard on the message she sent to Mr. Wheeler at 4:57 a.m. which stated, “no man, he does this every time someone is around.” It was suggested to Ms. Sheppard that in this message she was explaining that she left the house, not because of a gun incident but because Mr. Durdle grew angry as a consequence of his jealously over Ms. Sheppard and Mr. Wheeler’s wrestling. Ms. Sheppard did not remember sending this message. She said she was drunk.

She could not speak to the message or whom she was referencing in it. [ 118 ] Ms. Sheppard also acknowledged having no memory of the next message she sent Mr. Wheeler at 6:30 a.m. and the other messages on the morning of January 23, 2018. She said all of the messages sounded like “drunk talk” to her. [ 119 ] Ms. Sheppard acknowledged other gaps in her memory the night of the incident. Examples included that she had no memory of whether Mr. Durdle was carrying anything when he re-entered the living room that he would have needed to put down to lower Mr. Wheeler’s arm. [ 120 ] Defence Counsel suggested to Ms.

Sheppard that she fabricated the allegations when speaking to Cst. Welcher to shield herself against Mr. Durdle’s assault allegations. Ms. Sheppard denied this. She said she did not consider herself to be in legal jeopardy at the time she divulged the incident to Cst. Welcher. She testified she told Cst. Welcher about the incident because she was upset that Mr. Durdle made an allegation of assault against her. She was upset that Mr. Durdle had tried to bring an assault charge against her when he knew she had a gun pressed to her head and did not do anything about that. Ms. Sheppard said she was “ranting” to Cst.

Welcher and told him about the gun incident as an example of the toxicity of their relationship. [ 121 ] On cross-examination, Defence Counsel introduced and put to Ms. Sheppard text messages between her and Mr. Durdle dated February 13, 2020. These messages would have occurred a few days before she gave her statement to Sgt. Major Baldwin. It was suggested to Ms. Sheppard that in the messages she was seeking to restart her romantic relationship with Mr. Durdle, who expressed that he would rather remain friends. Ms. Sheppard had reacted angrily to Mr. Durdle in these messages.

She made reference to skeletons in Mr. Durdle’s closet and that she would make his life “a living hell.” [ 122 ] Within those text messages, Ms. Sheppard wrote, in part: You showed up to this gun war with a butter knife. Pardon the pun… even though I refused to tell on you guys. It’s still a file that says I wouldn’t make a statement. Your code of conducts are being done. Trevor Boland (sic) is conducting those. It’s time I gave you the karma you deserve! [ 123 ] Ms. Sheppard testified that this message was in reference to the gun incident.

[ 124 ] It was put to Ms. Sheppard that she fabricated the incident as a means of seeking revenge on Mr. Durdle, and that Mr. Wheeler was collateral damage to that goal. Ms. Sheppard responded that was not true. [ 125 ] Ms. Sheppard admitted that she was upset and “petty” in the text messages with Mr. Durdle but that the conversation had no bearing on her decision to make her statement to Sgt. Major Baldwin. She testified that the suggestion that she fabricated the story to hurt Mr. Durdle made no sense. If she wanted to lie and get Mr. Durdle in trouble, she could have made a complaint that Mr.

Durdle instigated the gun incident - not Mr. Wheeler. Ms. Sheppard further denied that her goal was to subject professional consequences on Mr. Durdle by making a false allegation against Mr. Wheeler, which if true would have required Mr. Durdle to come forward to avoid his own Code of Conduct infraction. Ashley Sheppard [ 126 ] Ashley Sheppard is a cousin of Ms. Sheppard. In January 2018, they were both residing on Bell Island. [ 127 ] Ashley Sheppard knew Mr. Wheeler was an RCMP officer on Bell Island, otherwise, she did not know him. She also knew Mr. Durdle was an RCMP officer on Bell Island. For a while, Mr.

Durdle was dating her cousin so she had met him a few times. [ 128 ] Ashley Sheppard recalled a conversation with Ms. Sheppard during which Ms. Sheppard was upset and crying. Ms. Sheppard told her that she and Mr. Durdle were at his house on Bell Island having a few drinks. Mr. Wheeler showed up and was drinking too. At one point, Mr. Wheeler had a gun out. Ashley Sheppard remembers Ms. Sheppard telling her that she felt the cold of the gun on her face.

These were the only details that stuck with Ashley Sheppard over the years. [ 129 ] Ashley Sheppard did not have a distinct memory of when the conversation with Ms. Sheppard happened however, she believed it was about four years ago. At the time, she and Ms. Sheppard were best friends and Ms. Sheppard was still in a relationship with Mr. Durdle. She did not recall how long the incident had happened before Ms. Sheppard told her about it. [ 130 ] On cross-examination, Ashley Sheppard was referred to the statement she gave to Insp. Knight on May 9, 2020.

She had an opportunity to review the statement prior to testifying. She testified that she remembered the details she gave in her evidence from what Ms. Sheppard had told her at the time of their conversation and not from reading the statement. [ 131 ] Ashley Sheppard confirmed that statement contained close to the exact words of what she had been told. She acknowledged that in her statement she said, “she did not know” and “did not remember” several times. She testified that was still true today.

She acknowledged she does not have a good memory. [ 132 ] In giving her evidence, Ashley Sheppard did not remember Mr. Durdle’s involvement in the incident. Just that he was there. It was put to her that in her statement she said Mr. Durdle came into the room and told Mr. Wheeler to stop and put it away. Once her memory was refreshed Ashley Sheppard did remember saying that in the statement. She would not have said it to the officer if it were not true and in her memory at that time.

Ashley Sheppard adopted what she said in her statement as being true. [ 133 ] Ashley Sheppard testified that only certain details stand out in her memory today. She had a clear memory that Ms. Sheppard told her they had a few drinks. Mr. Wheeler was there. He had the gun out and she felt the coldness of the gun on her face. She testified that she did not remember anything besides that. [ 134 ] A portion of her statement was read to her where she stated Ms. Sheppard had told her the next thing she knew Mr. Wheeler had a gun out “waving it around” and at some point, Ms. Sheppard felt coldness against her face.

Ashley Sheppard said that the coldness was in reference to the gun against Ms. Sheppard’s face. She did not remember whether the gun was being waved around prior to or after Ms. Sheppard feeling the coldness against her face. [ 135 ] Ashley Sheppard said Ms. Sheppard did not tell her whether Mr. Wheeler was standing or remained seated or if he took the gun out of a holster. [ 136 ] Ashley Sheppard had no recollection of Ms. Sheppard saying Mr. Wheeler pointed the gun at her. She also did not remember Ms. Sheppard telling her that she and Mr.

Wheeler were wrestling that night or that he was doing police moves on her. Nor did she recall Ms. Sheppard telling her that she left the house after the incident. [ 137 ] Ashley Sheppard said it was a few years ago. All she remembers is the part about the gun. The other details, as far as she can now remember, were not told to her by Ms. Sheppard. Defence Witnesses Paul Durdle [ 138 ] Mr. Durdle is an RCMP officer. At the time of the alleged events, he was posted on Bell Island. While there, Mr. Durdle lived in a house located close to the ferry terminal. [ 139 ] Mr.

Durdle was transferred from Bell Island on July 5, 2018. Shortly after that, his relationship with Ms. Sheppard ended. Mr. Durdle and Ms. Sheppard have a son together who was born in March 2019. He testified that they have an ongoing custody and access matter related to their son. [ 140 ] When asked about the events of January 23, 2018, Mr. Durdle said Mr. Wheeler arrived at his house after his shift, at approximately 2 a.m. Mr. Wheeler was wearing his RCMP uniform. Mr. Durdle did not see Mr. Wheeler wearing his vest or equipment belt at any point during the evening.

[ 141 ] Mr. Durdle testified that Mr. Wheeler arrived before Ms. Sheppard, and that he had been home alone beforehand. Mr. Durdle said he called Ms. Sheppard to come over when Mr. Wheeler arrived. She arrived shortly after Mr. Wheeler. It was the only evening all three of them had socialized together. [ 142 ] Mr. Durdle testified that upon Ms. Sheppard’s arrival, she immediately proceeded to the dining room and poured herself red wine. He stated that the only alcohol in his house were five bottles of wine. Notably, he volunteered that Ms.

Sheppard was not drinking vodka without first being told there was evidence previously received that vodka was what she was drinking. He also volunteered that he could tell Ms. Sheppard had been drinking before she arrived. [ 143 ] Mr. Durdle testified that Ms. Sheppard displayed animosity towards him that evening. Unprompted by Defence Counsel, Mr. Durdle relayed comments of a sexual nature that he said Ms. Sheppard made. Counsel agreed that the comments were not necessary or appropriate. Mr. Durdle was cautioned accordingly to not make irrelevant comments of such nature about Ms.

Sheppard. [ 144 ] According to Mr. Durdle, it was a normal evening. Nothing remarkable happened. [ 145 ] Mr. Durdle testified that he observed Ms. Sheppard tickling and poking Mr. Wheeler. Mr. Wheeler reciprocated. The messages between Mr. Wheeler and Ms. Sheppard referring to Ms. Sheppard having sustained bruises were put to Mr. Durdle. He did not recall anything happening that could have resulted in bruising to Ms. Sheppard. [ 146 ] Mr. Durdle testified he would occasionally go to the kitchen for snacks, and at one point he got his guitar.

Otherwise, he remained in the living room for the majority of the evening. [ 147 ] Mr. Durdle testified that approximately 45 minutes after Ms. Sheppard arrived, he was in the kitchen getting a Pepsi when she confronted him and started an argument over his ex-girlfriend. Mr. Durdle said Ms. Sheppard left the house. He put on his shoes to go find her, as he was concerned for her safety. He testified that he found Ms. Sheppard sitting in her car in the neighbouring driveway. He told her to return to the house because she had been drinking. Mr. Durdle said Ms. Sheppard was clearly intoxicated. [ 148 ] Ms.

Sheppard came back inside, sat on the couch with Mr. Wheeler, and continued to drink wine. Approximately 20 to 30 minutes later, she went to the master bedroom and fell asleep on the bed. A short time later Mr. Wheeler got in his vehicle and drove home. [ 149 ] Mr. Durdle testified that Ms. Sheppard did not leave the house that night other than the incident he described. [ 150 ] At first, Mr. Durdle testified that he did not recall making multiple calls to Ms. Sheppard when she left the house. Then he said, he did not make any calls to her. Mr. Durdle stated at that time he and Ms.

Sheppard had each other’s cell phone numbers. He did not recall whether they were friends on Facebook. He said they used to be friends on Facebook but he has blocked her for a long time. Mr. Durdle said he did not use other forms of social media. [ 151 ] Mr. Durdle denied that he drank alcohol that night. Mr. Durdle testified that he did not provide alcohol to Mr. Wheeler or make drinks for him. He also did not observe Mr. Wheeler drinking that night. Mr. Durdle was very clear that he served Mr. Wheeler Diet Pepsi, but no alcohol. Mr. Durdle was referred to Mr. Wheeler’s statement in which Mr.

Wheeler admitted he drank alcohol that evening. Mr. Durdle responded that he said he could not speak to that. [ 152 ] Mr. Durdle in fact denied having any spirits or hard liquor in his house. On cross-examination when referred to the Facebook messages in which Mr. Wheeler admitted to drinking at Mr. Durdle’s house, Mr. Durdle then stated that there “could” have been hard liquor present. He said it may have been poured when he was out of the room or he may have forgotten it. [ 153 ] Mr. Durdle further denied that he observed Mr. Wheeler with his firearm. He denied he saw Mr. Wheeler press his gun to Ms.

Sheppard’s head and he denied he pushed Mr. Wheeler’s arm away. Mr. Durdle testified that the only gun he was aware of that was in the house that night was his service pistol which was locked and unloaded in his bedroom. [ 154 ] On cross-examination, Mr. Durdle was referred to Mr. Wheeler’s statement in which he admitted to wearing his firearm and Ms. Sheppard had brushed up against it. Mr. Durdle replied that he did not recall this. [ 155 ] The apology message was put to Mr. Durdle. He was questioned on the phrase written by Mr. Wheeler that “Paul told me I freaked you out the other night.” Mr.

Durdle denied having any such conversation with Mr. Wheeler. [ 156 ] Mr. Durdle denied having conversations with Ms. Sheppard about the alleged gun incident. He stated that he first heard of the allegations from Ms. Sheppard on December 16, 2019 when he was visiting their son at her residence in St. John’s. She asked him if the RNC had contacted him about Mr. Wheeler having pointed a firearm at her. Mr. Durdle said he was shocked. He said that because he understood the severity of the allegations, he changed the subject and did not ask Ms. Sheppard any follow-up questions. [ 157 ] Mr.

Durdle said if he had observed a criminal offence, he would have intervened and notified his supervisor. He also acknowledged that if he knew another member mishandled his firearm, he would have an obligation to report it. He also acknowledged that if a member were drinking while on call, that would be contrary to regulations. [ 158 ] Mr. Durdle was shown copies of the February 13, 2020 text messages between him and Ms. Sheppard. Mr. Durdle stated that he did not provide these to Mr. Wheeler and was unaware of how they were put before the Court.

He said he believed his father may have spoken with Defence Counsel and provided them to him, but that he said he had no personal knowledge of this. [ 159 ] Mr. Durdle testified that he interpreted Ms. Sheppard’s reference in the texts to skeletons in the closet as evidence of Ms. Sheppard being “unpredictable.” He understood from this that Ms. Sheppard would “make up” allegations against him and go to his employer to attempt to have him fired or charged.

[ 160 ] Mr. Durdle was reminded on cross-examination that by the time he had this text message exchange with Ms. Sheppard, he had already refused to give a statement to Sgt. Abbott in December 2019, and that had given a statement to Sgt. Major Baldwin on February 4, 2020. Mr. Durdle admitted that he knew at the time of the text messages that both the RNC and the RCMP were aware of the allegations. [ 161 ] Mr. Durdle testified that he did not give a statement in the criminal investigation on the recommendation of his union representative and advice from his family law lawyer. [ 162 ] It was put to Mr.

Durdle that Sgt. Major Baldwin told the Court that he was one of the most resistant witnesses he had ever encountered under a Code of Conduct investigation. Mr. Durdle said he felt intimidated and harassed by a fellow officer. He felt threatened that he either had to give a statement or be ordered to do so. [ 163 ] Mr. Durdle testified that he immediately called Mr. Wheeler after he had spoken to Sgt. Abbott on December 27, 2019, to advise him that Sgt. Abbott was looking for him. Mr. Durdle denied he relayed anything to Mr. Wheeler that Sgt. Abbott had said to him. [ 164 ] Regarding his relationship with Ms.

Sheppard, Mr. Durdle stated that he held no ill-will toward her. He said, ‘She is the mother of my child’. He stated they do not have contact other than through email on matters relating to their son. [ 165 ] On cross-examination, it was put to Mr. Durdle that two officers must be on call at all times on Bell Island. He testified that he did not remember the identity of the third RCMP member on Bell Island that night. He stated “it was five years ago” and he had not seen the schedule. [ 166 ] After a brief break in the proceedings, Mr. Durdle returned to the stand. He then advised that Sgt.

Peddle was the third officer on Bell Island that evening. Mr. Durdle was able to tell the Court that Sgt. Peddle was working day shift on January 18, 2023 and he was working the evening shift. He further elaborated that he had received a text from Sgt. Peddle asking him to have Ms. Sheppard move her car from Cst. Hiscock’s driveway as it had been left there overnight. When questioned further by Crown on how he now remembered this information, he testified that he independently recalled it. He denied having checked his text messages during the break. Michael Wheeler [ 167 ] Mr.

Michael Wheeler is a member of the RCMP and was posted on Bell Island from 2015 to 2018. He is presently on administrative suspension due to a Code of Conduct complaint related to Ms. Sheppard’s allegations. [ 168 ] Mr. Wheeler denied the allegations against him. He described the evening he spent with Mr. Durdle and Ms. Sheppard as having been fun and enjoyable. [ 169 ] Mr. Wheeler testified that he first heard of the allegations on December 27, 2019, when he received a call from Sgt. Abbott that Ms. Sheppard had alleged he had pointed his gun at her. [ 170 ] Mr. Wheeler characterized his friendship with Ms.

Sheppard as jokes and discussions regarding Mr. Durdle. Their contact with one another was largely through social media. They communicated through Facebook messenger. Mr. Wheeler testified that he remained supportive of Ms. Sheppard when she was pregnant with Mr. Durdle’s child while Mr. Durdle did not. Their friendship continued after the night of the alleged incident; it only ended when the allegations were made. [ 171 ] Mr. Wheeler testified he was working a night shift on January 22, 2018. He did not recall when it ended but it would have been either midnight or 2 a.m.

He acknowledged that he was scheduled to be on call thereafter. He could not recall whether he had switched his on-call shift. He said it was common, when an officer was off the next day—as he was—to switch the on-call shift with another officer. [ 172 ] Mr. Wheeler testified that Mr. Durdle invited him to come to his residence after his shift ended. Mr. Wheeler went directly there after his shift. He arrived between midnight and 2 a.m. He was dressed in his full uniform. This included his equipment belt, with handcuffs, pepper spray, and his firearm. [ 173 ] Mr. Wheeler testified that Ms.

Sheppard was already at Mr. Durdle’s house when he arrived. Mr. Wheeler sat on the couch in the living room. Ms. Sheppard was sat in the middle of the couch immediately to his right. [ 174 ] Mr. Wheeler was asked if he noted anything unusual when he first arrived. He replied, only that Ms. Sheppard was intoxicated. [ 175 ] Mr. Wheeler stated that Ms. Sheppard poured his drinks – not Mr. Durdle. He said he was there for an hour before he had anything to drink at all. He drank what Ms. Sheppard gave him—a mixed vodka drink. Mr. Wheeler thought he had about three drinks that evening.

Although he did not know the amount of alcohol in each drink, he testified the drinks were not strong as he does not like the taste of alcohol. [ 176 ] Mr. Wheeler testified that early in the evening, Ms. Sheppard mentioned that it was weird to be next to a gun. It was more of a joke. Within the first twenty minutes of him sitting next to Ms. Sheppard, Mr. Wheeler testified that she touched his gun with her body. In response, he made a quick motion towards his gun which he described as muscle memory. This appeared to frighten Ms.

Sheppard for a second but she laughed after that. [ 177 ] Following this initial exchange, reaching for the firearm became something of a joke between them. He and Ms. Sheppard began “horsing around.” She asked him what he would do if someone tried to take his gun and he told her to put her hand near the gun. He grabbed her and they wrestled. In Mr. Wheeler’s recollection, this is how they started wrestling or performing police holds. [ 178 ] Mr. Wheeler testified that Ms. Sheppard would say something to him and jokingly he would motion towards his gun.

Other times, he said she would say something he didn’t like and he would pretend to grab his gun. Alternatively, he said she would go by and literally

put her hand on his gun. He would grab her wrist and she would try to get out of it. Mr. Wheeler said they probably went a little too far with the wrestling. He admitted it did get annoying. [ 179 ] Mr. Wheeler said there were multiple instances of wrestling between them which happened intermittingly for approximately 45 minutes to an hour over the course of the evening. Something would instigate it, they would put each other in restraint holds and the other would try to get out of it . According to Mr. Wheeler, each instance of wrestling was approximately 15 to 20 seconds. He testified that Mr.

Durdle would have been present for at least some of the wrestling, [ 180 ] Mr. Wheeler said he removed his vest and gear after about an hour and a half and placed them on the floor in the living room because he had become too hot. [ 181 ] Mr. Wheeler testified that he, Ms. Sheppard and Mr. Durdle, were present together in the living room the majority of the evening. [ 182 ] At some point in the evening, Mr. Wheeler testified that Mr. Durdle told him Ms. Sheppard had left. Mr. Wheeler assumed that they had a disagreement, and he messaged her to come back.

He received a response that “no man he does this every time someone’s around.” Mr. Wheeler said Ms. Sheppard came back shortly after, but it put a damper on the night. [ 183 ] Mr. Wheeler expressly denied removing his firearm at any point during the night. He stated that he did not point it at Ms. Sheppard, and that he had no physical interaction with Mr. Durdle. [ 184 ] Mr. Wheeler testified to the content of several of the Facebook messages between him and Ms. Sheppard. In relation to the message, he wrote to Ms. Sheppard where he described telling Mr.

Durdle that he did not want to be up late or drinking, and “look wtf happened,” he testified this was about wanting to get the early boat home the next morning. Because he was up late, he ended up getting a later boat and his wife was not happy with him. [ 185 ] With respect to the apology message Mr. Wheeler was asked if he had a conversation with Mr. Durdle about Ms. Sheppard having been “freaked out.” He denied he had a direct conversation with Mr. Durdle about this. Rather, he testified that he was seated at his desk at the detachment when Mr.

Durdle came in and said to someone else who was present that he had freaked Ms. Sheppard out a couple of times the other night. Mr. Wheeler did not ask Mr. Durdle about what he meant by having freaked Ms. Sheppard out because he “kind of knew.” In stating this, Mr. Wheeler explained that he and Ms. Sheppard had been wrestling hard, so there was really no need to talk about it. Mr. Wheeler denied the apology was in any way related to having pressed his gun to Ms. Sheppard’s head. [ 186 ] On cross-examination, Mr.

Wheeler said he did not know why he had worded the message to say, “Paul told me.” He disagreed with Crown Counsel that the wording necessarily suggested he had spoken with Mr. Durdle about Ms. Sheppard having been freaked out. [ 187 ] Mr. Wheeler testified that the only time Ms. Sheppard showed any fear that evening was the first time she flinched when he reached for the weapon. He said he offered the apology in case she had a change of heart. [ 188 ] With respect to his comment in the apology message about being more comfortable around his gear than he should be, Mr.

Wheeler testified this was in reference to a lot of the wrestling having centered around his gear. [ 189 ] In reference to the later message where he wrote to Ms. Sheppard that he was ‘pretty used to people telling him he has done stupid shit while drinking so don’t hold back’, Mr. Wheeler said he wrote this because he had no idea what Mr. Durdle could have been speaking about when he said he had “freaked out.” He had no impression other than they had a good night. [ 190 ] Mr. Wheeler concluded the apology message by stating weird shit always happens to him on nights like that.

He was questioned on what this meant and he testified that was referencing many nights when he would have a couple of drinks it would turn into silly games like drinking mustard shots. “Nothing crazy.” [ 191 ] On cross-examination, Mr. Wheeler was questioned about the statement he provided in the criminal investigation to Insp. Knight. Initially, Mr. Wheeler acknowledged that at the time of giving the statement anything to do with his firearm would be important to what happened that evening. [ 192 ] It was put to him that there was no mention of the wrestling in this statement.

He responded that he had been told that the allegation had been with respect to pointing his firearm, and that he considered the wrestling irrelevant. [ 193 ] It was brought to his attention that many of the wrestling incidents were precipitated by jokes over his firearm, and that—given the nature of the allegation—any information surrounding the firearm was important. He responded that not everything about the gun was relevant. He only thought the first incident where Ms. Sheppard touched the gun and exhibited some fear was relevant. [ 194 ] It was further put to Mr.

Wheeler that there was no mention in his statement of Ms. Sheppard having left the residence due to an apparent disagreement with Mr. Durdle. Rather, his statement indicated that the three parties were present the entire time except for bathroom and cigarette breaks. Mr. Wheeler acknowledged that, in the totality of the circumstances apparent to him now, the presence of witnesses may be important, but he did not think of Ms. Sheppard having left the house at the time. [ 195 ] Mr. Wheeler testified that when he gave the statement he responded based on the limited information he had at the time.

He had no idea what was relevant. He said he also did not include the colour of his underwear. [ 196 ] Mr. Wheeler was also questioned as to his alcohol intake during the night. It was suggested to him on cross-examination that his message “kill me” to Ms. Sheppard the next morning sounded like someone with a hangover. Mr. Wheeler did not know what he meant by this message but responded it was more likely a reference to how late he was up. He said, alcohol affects his ability to sleep. [ 197 ] Mr. Wheeler was also questioned on what he meant in the messages to Ms. Sheppard that no wonder he had quit drinking.

He denied having an alcohol problem and stated that he did not drink often when stationed on Bell Island due to limited social opportunities.

[198] It was put to Mr. Wheeler that his messaging to Ms. Sheppard after that night suggested he drank too much and did something heregretted. He disagreed and stated that he was upset because he had missed the early boat on his day off. [199] Mr. Wheeler was asked how he came to be in possession of the text messages between Ms. Sheppard and Mr. Durdle. He testifiedhe received them from Mr. Durdle’s father who called him and said he had papers for his lawyer. Mr. Wheeler testified that he met Mr.Durdle’s father at Home Depot and obtained the text messages. Mr.

Wheeler did not know when this happened except that it was sometime this year. ANalysis Elements of the offences [200] The offence of careless use or storage of a firearm is made out if the Crown proves beyond a reasonable doubt that Mr. Wheeler:(1) used or stored a firearm; (2) that he did so in a careless manner; and (3) that he had no lawful excuse for such use or storage of thefirearm. [201] The criminal law pays special attention to persons who have control over firearms.

It is expected that those who assume controlover firearms will act in a way that indicates respect for the inherent potential for harm of firearms. [202] Use of a firearm would include Mr. Wheeler pulling out the firearm and holding it against Ms. Sheppard’s face or displaying it tointimidate Ms. Sheppard. [203] Careless use, or storage, of a firearm involves conduct that shows a marked departure from the standard of care that a reasonablyprudent person would exercise in the same circumstances (R. v. Finlay, (SCC), [1993] 3 S.C.R. 103). [204] The leading authority on what constitutes “storage” is R. v.

Carlos, 2002 SCC 35. In Carlos, the Supreme Court wrote that“[t]here is no requirement in [the]

section that the accused plan a long term or permanent storage” (at para. 3). Setting a firearm aside, ona temporary basis, with the intention to retrieve it later, has been found to amount to storage.

In Carlos, the Supreme Court acknowledgedthat there would be circumstances where a short interruption in use or handling may not amount to storage. [205] While transgression of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, S.O.R./98-209(the “Storage Regulations”) is not in and of itself sufficient to ground a conviction under section 86(1), the Storage Regulations cannevertheless inform the Court’s analysis of what Parliament considers unsafe with respect to the storage of firearms (Williams v. R., 2019NBCA 51 at para. 15).

Parliament has imposed a “specific and rigorous” duty of care with respect to firearm storage reflecting theinherent danger associated with firearms more generally (Finlay at para. 30). [206] The offence of pointing a firearm is established if the Crown has proven beyond a reasonable doubt that Mr. Wheeler: (1) pointeda firearm; (2) that he pointed it at Ms. Sheppard; and (3) that he had no lawful excuse for pointing the firearm. [207] To point a firearm means to direct or aim it, intentionally. It involves a choice, an intentional act by Mr. Wheeler of directing theweapon towards Ms. Sheppard.

The mental element of the offence therefore involves nothing more than the intention to engage in theconduct that constitutes the external circumstances of the offence. Assessing Credibility and Reliability [208] Fact-finding requires that I assess both reliability and credibility. Reliability concerns the accuracy of a witness’s evidence. Itinvolves an assessment of the witness’s capacity to observe, recall and recount the events in issue. Credibility is different. It involves anassessment of the witness’s believability and truthfulness. [209] In R. v.

C.H. (1999), (NL CA), 182 Nfld. & P.E.I.R. 32, 554 A.P.R. 32 (Nfld. C.A.), at paragraph 23, inaddressing the effect of inconsistencies upon the credibility of a crucial witness, our Court of Appeal cited with approval the decision ofRowles J.A. in R. v. B.(R.W.), [1993] 19 W.C.B. (2d) 260, 40 W.A.C. 1 (B.C.

C.A.), at paragraphs 28 & 29: 28 …Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that thecredibility and reliability of the complainant’s evidence be tested in the light of all of the other evidence presented. 29 … While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies maybecome quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’ evidence.

There is norule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of theinconsistencies in order to assess whether the witness’ evidence is reliable. This is particularly so when there is no supporting evidenceon the central issue, which was the case here. [210] In R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, at paragraph 28, the Supreme Court set out a suggested formula forassessing credibility in the context of the criminal standard of proof. It is paraphrased as follows: 1. If I believe the evidence of the Accused, I must acquit. 2.

If I do not believe the testimony of the Accused but am left in reasonable doubt by it, I must acquit.

3. Even if I am not left in doubt by the evidence of the Accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the Accused. [ 211 ] In R. v. S. (J.H.) , 2008 SCC 30 , at paragraphs 10-12 , the Supreme Court provided clarification on the W.(D.) analysis and a reminder that a trier of fact may believe some, none, or all of the testimony of any witness including that of an accused. E lements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected.

Equally, the trier of fact may be uncertain as to which version of events to believe. In either circumstance, the accused is entitled to an acquittal. [ 212 ] Subsequent authorities have found that the first prong of the W.(D.) analysis applies to all exculpatory evidence that the Crown must negate beyond a reasonable doubt, whether it is found in the Crown or the defence case ( R v. D.(B.) , 2011 ONCA 51 , at paras 105- 114 , and R v. Cuthill , 2018 ABCA 321 ). [ 213 ] Overall, I must decide whether the evidence, as a whole, established beyond a reasonable doubt that Mr.

Wheeler used or stored his firearm in a careless manner or pointed a firearm at Ms. Sheppard. [ 214 ] Even if I do not believe the exculpatory evidence nor find that it raises a reasonable doubt, that is not the end of the matter. I have to consider all of the evidence before I can determine whether the Crown has proven these offences beyond a reasonable doubt. [ 215 ] With those principles in mind, I will now assess the evidence.

Assessment of the Evidence [ 216 ] As the evidence relevant to both counts is intermingled, I will deal with the assessment of the evidence pertaining to both offences together. [ 217 ] I begin with an analysis of the exculpatory evidence. [ 218 ] Mr. Wheeler denied that he placed his firearm against Ms. Sheppard’s face or pointed it at her. In fact, his evidence is that at no time was his firearm removed from its holster. [ 219 ] At the outset let me state that I do not believe Mr. Wheeler’s evidence that he did not put his firearm to Ms. Sheppard’s face or point it at her.

Nor do I find his evidence raises a reasonable doubt. [ 220 ] I will explain why I do not believe him. [ 221 ] Mr. Wheeler presented as a calm and composed witness. I am mindful however that while demeanor is a relevant factor and can be useful in credibility assessments, demeanor alone can be an unreliable predictor of the accuracy of the evidence given by a witness ( Law Society of Upper Canada v . Neinstein , 2010 ONCA 193 at para. 66 ; R. v. P. (S.H.), 2003 NSCA 53 . As stated by the Newfoundland and Labrador Court of Appeal in R. v.

P.(E.J.) , 2002 NFCA 24 , at paragraph 61 , “Coherent testimony given with outwardly convincing demeanors can come from the mouths of inveterate liars. Conversely, perfectly trustworthy testimony can be emitted by witnesses whose demeanors leave unfavourable impressions.” [ 222 ] My concern was not so much in the manner in which Mr. Wheeler testified but the substance of what he had to say and how I found it unworthy of belief when considered in the context of the whole of the evidence. [ 223 ] A chief concern was the difference between Mr.

Wheeler’s version of events given through his police statement in the criminal investigation and his version of events at trial. [ 224 ] Mr. Wheeler provided a written account of his version of events in the criminal investigation on May 29, 2020. He had no obligation to give a statement but with advice of counsel, and through counsel, he chose to do so. This was done closer in time to the alleged events than his trial testimony and before he was charged with any offence. It was also done before Mr. Wheeler had full disclosure. [ 225 ] Mr.

Wheeler testified that he provided everything relevant in the statement according to the information he had at the time. [ 2

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