HIS MAJESTY THE KING - v. -, 2023 SKKB 87

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 87 Date: 20 23 04 25 Docket: CRM-RG-00029-2022 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - THOMAS STEVENSON PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss. 486.5(2) of the Criminal Code such that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way. Counsel: David Belanger for the Crown Thomas Hynes for the accused JUDGMENT BERGBUSCH J.

April 25, 2023 INTRODUCTION [ 1 ] Shortly after midnight on September 19, 2019, Travis Sutherland [Sutherland] shot and wounded J.M. [J.M.] on Osler Street, in Regina, Saskatchewan. In connection with this violent incident, Thomas Stevenson [Stevenson] was subsequently charged with attempted murder, contrary to s. 239(1) (

a) of the Criminal Code , RSC 1985, c C-46 . Stevenson was also charged with the commission of an indictable offence for a criminal organization, contrary to s. 467.12(1) of the Criminal Code . [ 2 ] The Crown alleges that Stevenson participated in these offences by either of two means: (

a) Stevenson aided Sutherland to commit the offences; or (

b) Stevenson formed an intention with Sutherland and others to carry out an unlawful purpose (a drive-by shooting of a residence) and to assist each other in doing so; Sutherland shot and wounded J.M. in carrying out the common purpose; and Stevenson knew or ought to have known that Sutherland’s commission of the offences was a probable consequence of carrying out the common purpose. [ 3 ] During closing argument, the Crown conceded that an acquittal should be entered on the charge of attempted murder, as the evidence did not establish that Stevenson had the requisite subjective intent.

The Crown submitted that, pursuant to s. 662(1) of the Criminal Code , the court should convict the accused of the lesser included offence of discharging a firearm at a person with intent to wound, maim or disfigure, contrary to s. 244(1) of the Criminal Code . It is the Crown’s theory that Stevenson is a party to the lesser included offence, pursuant to ss. 21(1) (

b) or 21(2) of the Criminal Code . The Indictment [ 4 ] Stevenson is charged under an indictment that alleges the following two offences: 1. THAT HE, the said Thomas Stevenson on or about the 19th day of September, A.D. 2019 at or near Regina, Saskatchewan, did commit one or more indictable offences for the benefit of, at the direction of, or in association with a criminal organization to wit: the Indian Mafia, contrary to

section 467.12(1) of the Criminal Code . 2. THAT HE, the said Thomas Stevenson on or about the 19th day of September, A.D. 2019 at or near Regina, Saskatchewan, did

attempt to murder J.M. , while using a firearm by intentionally discharging a firearm at J.M., and did so for the benefit of or at the direction of, or in association with a criminal organization, contrary to section 239(1) (

a) of the Criminal Code . [ 5 ] Discharging a firearm at a person with intent to wound, maim or disfigure is an indictable offence that could support conviction for the first count of the indictment (commission of an offence for a criminal organization), provided the other elements of that offence are proven beyond a reasonable doubt. The focus of the testimony at trial was on the second count of the indictment, and my reasons will deal with that offence first.

Agreed Facts [ 6 ] The Crown entered as Exhibit P3 an agreed statement of facts, setting out facts that are admitted by the accused pursuant to s. 655 of the Criminal Code . The admitted facts are: 1. It is admitted that J.M. was shot with a firearm and struck with a bullet in the penis. This happened in Regina, Saskatchewan. A copy of his medical records will be marked by consent for the truth of their contents only insofar as they outline medical injuries and observations (and not for any hearsay statements from the victim reproduced therein). 2.

It is admitted that the person who shot J.M. was a male named Travis Sutherland and it is further acknowledged that Mr. Sutherland has pleaded guilty and been sentenced for discharging a firearm at J.M. on the date in question. It is admitted that J.M. provided an audio/video recorded statement to the police on October 31, 2019 (when J.M. was in custody himself on other matters, having been arrested that same day, in the aftermath of also having been shot again, that same day, on October 31, 2019). It is admitted that Mr.

J.M. asked to speak to police about these matters, and that during the course of that statement, taken by Cst. Steve Dods of the Regina Police Service, J.M. identified Travis Sutherland in a photo lineup as the person who had shot him on September 19, 2019. 3. Thomas Stevenson was arrested and charged in relation to this matter on February 12, 2020. He was arrested just before 2:00 p.m. that day in the City of Regina. 4. It is admitted that the firearm used to shot ( sic ) J.M. on September 19 th , 2019, was an SKS riffle bearing serial # 1157 as the last 4 digits.

That firearm was purchased by, an Indian Mafia member named Gabriel Whitehawk A.K.A. “Bang Hawk” or “Bang” on June 16 th , 2019 at the Cabela’s store at 4901 Gordon road in Regina. It’s admitted that Gabriel Whitehawk plead guilty to trafficking the firearm to C.S., a member of the Inadia ( sic ) Mafia at the time, and that, for the benefit of this criminal organization. Gabriel Whitehawk received a 5 years sentence for that crime in February 2020. 5. The Affidavit of Keely Ning and the business records from the Cabela’s store will be tendered as evidence by consent of the parties.

The firearm was recovered by the Regina Police Service as it was abandoned in the backyard of the residence at 1927 Montreal street in Regina. Pictures of the firearm seized by Cst. Jeremy Kerth will be tender ( sic) as evidence by consent of the parties. The firearm in question is a Siminov SKS 7.62 Caliber, it was tested and found capable of discharging a projectile so that it met the definition of firearm in the criminal code. 6. Its admitted by the parties: the qualifications of Cst.

Trevor Weir who will be called as an expert witness and able to give opinion evidence on typical organization, hierarchy, structure, language and modus operandi of Regina Street gangs, including identifying markers such as colours, graffiti, and tattoos, and other issues as contemplated in his report. [ 7 ] Records from the Regina General Hospital confirming J.M.’s injuries and treatment were marked as Exhibit P1.

SUMMARY OF TESTIMONY [ 8 ] The Crown called five witnesses: two members of the Regina Police Service [RPS] who were on duty the night of the incident and had brief interactions with the victim; the victim, J.M.; C.S., a former member of the Indian Mafia who has testified for the Crown in several court proceedings; and Constable Trevor Weir, an expert in Regina street gangs. As is his right, the accused called no evidence in response to the Crown’s case. [ 9 ] I will begin by providing an overview of the witnesses’ evidence.

For narrative purposes only, I have included some hearsay statements made by the two key lay witnesses. No objection was raised to this testimony. In the circumstances of this case, which involves Regina street gangs, I find it helpful for context to begin with the testimony of the Crown’s expert. [ 10 ] Cst. Trevor Weir was called by the Crown to give expert opinion evidence.

Following a voir dire, he was qualified, without objection, to give opinion evidence on the typical organization, hierarchy, structure, language and modus operandi of Regina street gangs as they existed in September 2019, including identifying markers such as colours, graffiti, and tattoos, and other issues as contemplated in his report. Cst. Weir’s curriculum vitae was marked as Exhibit P7, and a report, entitled “Street Gang Opinion Report,” was marked as Exhibit P8. He acknowledged his duty to provide objective, impartial, and non-partisan evidence to the court. [ 11 ] Cst.

Weir has been a member of RPS for 16 years. He was assigned to the RPS street gang unit in 2012 and served a six-year term. The street gang unit fell under major crimes and investigated anything with a street gang component. The unit comprised eight individuals, including investigators of whom Cst Weir was one. Members of the unit focus on gathering intelligence rather than patrolling the street or responding to calls. They work with confidential informers. Cst. Weir explained that his knowledge was primarily gained through hands-on experience, supplemented with participating in conferences.

The unit attempts to keep track of gang activity and maintains a database on gang members. The unit works regularly with participants in the witness protection program. [ 12 ] Cst. Weir testified about characteristics of the Regina street gang environment that distinguish it from other urban gang activity. Cities such as Toronto, Ontario, Winnipeg, Manitoba and Saskatoon, Saskatchewan have several gangs of similar size and strength. Regina’s streets are more or less controlled by one group engaged in the drug trade. In around 1994, a gang known as the Native Syndicate [NS] was formed.

It was by far the largest gang in terms of its strength, membership, and geographic reach. In

2004, a rival gang known as the Native Syndicate Killers [NSK] emerged. This gang was smaller and more violent. In around 2005, these rival gangs were at war. [ 13 ] By 2014, a new gang appeared, known as the Indian Mafia [IM]. In 2016, after a policing operation [Project Shred] resulted in the incarceration of a large portion of the NS leadership, many members of the NS were absorbed by the IM. The IM exploded in size, strength and control. [ 14 ] In Regina, street gang activity is concentrated in central areas, although it extends into every city neighbourhood.

The 2200 block of Osler Street is part of central Regina. [ 15 ] By about 2018, the NSK and the IM had developed a working relationship. On social media, members of both gangs could be seen associating socially and they appeared to be working together to control the drug trade. [ 16 ] In June 2019, when members of the two gangs were travelling in the same vehicle, Denny Jimmy (also known as “Cash”) [Jimmy], a high ranking NSK member, was shot and killed by two prominent IM members. This ended the truce and gang violence erupted between the NSK and the IM. [ 17 ] Cst.

Weir described the process for joining a Regina street gang. Typically, there is no initiation for individuals who bring something to the gang – for example, established drug traffickers. Younger recruits are initiated by taking a “dirty 30” – a physical assault lasting 30 seconds. Gang members may be promoted in rank or have their rank stripped away, as they rise and fall in favour. The street gangs have an informal, fluid hierarchy. A member can be stripped of rank without all other members knowing. [ 18 ] Cst. Weir explained numerous slang terms and phrases used in gang culture.

A gang member who falls out of favour may be “greenlit”. If someone has been greenlit, other gang members are expected to act out in violence towards them. There are many ways a member can make the leadership angry, such as by losing money or drugs, offending the gang president, or by “patching over” (i.e., joining a rival gang). A “mission” is a job or task assigned to a gang member by a higher-up in the organization. A “drive- by”, not surprisingly, refers to shooting from a vehicle at a target, such as a person or place. [ 19 ] Cst. Weir described the hostility between the IM and NSK in September 2019.

By then, the gangs were at war, competing against each other for memberships, control of territory, and business, and violent acts between rival gang members were on the rise. If a gang member ran into a rival gang member, some form of violence or aggression was expected. [ 20 ] Cst. Weir described street gang identifiers used by Regina’s street gangs. Entry level IM members were entitled to have a tattoo on their middle finger, consisting of an intertwined “I” and “M”. Looking at a photo of the accused’s hand, Cst.

Weir observed that he had an IM tattoo, and he also had a “9” tattooed on his ring finger and a “13” on his index finger, which also reference the IM since these numbers correspond to the letters I and M in the alphabet. A “full-patch” member is someone of higher status who gets a large tattoo. In each case, a member needs permission to get a tattoo as these are a sign of status. [ 21 ] Regina gangs also have distinctive clothing. In particular, IM members often wear a black and white paisley bandana (sometimes referred to as their “flag”). They also often wear predominantly black clothing.

NSK members wear a red bandana. [ 22 ] Cst. Weir described the process followed by police organizations to determine that someone is a gang member. Six criteria have been developed by Criminal Intelligence Service Canada, a federal agency that supports police organizations in their work to combat organized crime, to deem someone a member of a criminal organization: (

a) Self-acknowledgement/self-identification as a gang member. (

b) Observed association with a gang. (

c) Use of gang identifiers, such as tattoos, bandanas, and distinct clothing. (

d) Participation in gang-motivated crime. (

e) A court ruling that someone is a gang member. (

f) Reliable source information. [ 23 ] Cst. Weir reviewed photographs of Stevenson, pointing out certain indicia of gang membership that he observed: tattoos on his left hand, photos with him and other gang members, and tattoos around his neck. Cst. Weir also pointed out photos of C.S. [C.S.] that show gang identifiers. Photos of Sutherland show that he had an IM tattoo on his middle finger and an NS tattoo on the webbing of his left hand. Other photos dated September 13, 2019, show Sutherland associating with known gang members. Cst.

Weir also identified photos of Ramie Bellegarde and J.M. in Exhibit P8 and noted tattoos on each of them associated with the IM. [ 24 ] Finally, Cst. Weir explained that street gang members can rise in ranking by performing tasks for the gang. He gave the example of a soldier promoted for acting on a greenlit order. [ 25 ] Cst. Weir was not cross-examined on his qualifications or the substance of his opinion. I found Cst. Weir’s testimony to be objective and credible.

While some of his evidence amounted to background information, it assisted me to understand the events at play in this prosecution. [ 26 ] I will now turn to the other witnesses. [ 27 ] After midnight on September 19, 2019, Cst. Chad Martinson was on patrol in Regina with his partner. At about 12:40 a.m., they received a report of a shooting on Osler Street and travelled to the Regina General Hospital. On his arrival, Cst. Martinson saw J.M. lying on the floor in the entrance to the hospital lobby. J.M. was bleeding from his groin, was in pain and appeared

concerned. Cst. Martinson spoke to J.M. briefly but did not take a statement from him. However, he observed that J.M. did not appear intoxicated or under the influence and could communicate in full sentences. [ 28 ] On the night of September 19, 2019, Cst. Devin Chadwick was on duty at Regina General Hospital on an unrelated matter. He learned by radio that a suspected shooting victim had arrived at the front doors of the hospital. He met the victim, who identified himself as J.M., at the emergency room and confirmed J.M.’s identity on the RPS electronic database.

Cst Chadwick tried to get a statement from J.M. before he was sedated. J.M. gave a brief rendition of what had happened, but Cst. Chadwick was not able to take a written or recorded statement from the victim at the time. According to Cst. Chadwick, J.M. was in pain and upset, but appeared sober, spoke in a clear, concise manner, and seemed aware that he was talking to the police. [ 29 ] I am satisfied that the evidence of Cst. Martinson and Cst. Chadwick was truthful, credible and reliable. [ 30 ] J.M. testified next for the Crown. On September 19, 2019, J.M. was 33 years old and living in Regina.

He knew the accused, Thomas Stevenson, because they had both been members of the IM, a Regina street gang, and they saw each other frequently. He said that Stevenson’s nickname was “Big Sav” and identified him in court. [ 31 ] J.M. first became involved with the IM in about 2015 or 2016, when he was voted into the gang by three high ranking members. At the time, J.M. did not have a formal initiation to join the IM. He got a “stamp” (i.e., a tattoo of the IM symbol) on the middle finger of his left hand. [ 32 ] J.M.’s testimony about the IM was consistent with Cst. Weir’s overview.

J.M. testified that the IM’s hierarchy consisted of a president, a sergeant-at-arms, generals, crew bosses who reported to the generals, and entry level gang members. J.M. started as a crew boss and, by November 2018, he had risen to the rank of general. The IM’s president was Ramie Bellegarde [Bellegarde], who was incarcerated. J.M. testified that he knew about seven to eight generals, and listed himself, Geoff Morris, C.S., and Stevenson. Billy Joe Sammy (also known as “Boulders”) [Sammy] was the sergeant-at-arms.

J.M. believed that IM had about 40 to 50 members in 2019. [ 33 ] As described by J.M., the IM’s principal activity is trafficking in illicit drugs. The IM maintains a dominant position on the street by confronting people selling drugs. Through intimidation and violence, dealers are informed that they must buy their product from the IM or cease their activity. If these dealers do not comply, IM members enforce their threats by violent acts, including robberies and drive-by shootings. [ 34 ] J.M. was originally recruited by the IM when he was in jail.

J.M. testified that he joined as a crew boss rather than as an entry level “striker” because he brought to the table an established connection with a drug dealer and because he paid off a debt for Bellegarde. [ 35 ] According to J.M., there was tension between Bellegarde and him from the time that J.M. joined the IM. J.M.’s drug supplier did not want to deal directly with Bellegarde and Bellegarde was concerned that J.M. was trying to take his place. This came to a head when $7,000.00 went missing.

J.M. testified that he knows who took the money, but he told Bellegarde he stole it since he expected to be “stripped” (i.e., expelled) from the IM either way. J.M. was expelled from the IM in November 2018. [ 36 ] Shortly after he was expelled from the IM, J.M. joined the NSK. [ 37 ] Sometime in 2019, J.M. learned that Bellegarde had it out for him and he had been greenlit.

J.M. explained that being greenlit meant in his case that he had a target on his back and could be shot on sight by IM members. [ 38 ] J.M. testified that, during his time within the IM, decisions were made at meetings (referred to as “sit-downs” or “church”) of the generals, called by Bellegarde. Whether someone should be greenlit would be discussed at such meetings. [ 39 ] After he learned that he had been greenlit, J.M. protected himself by having guns and people with guns around him.

However, he remained in Regina and continued to sell drugs. [ 40 ] According to J.M., when he joined the NSK, a good working relationship existed between the NSK and the IM. Gang members got along on the street and would sell to each other. That all changed after the murder of Jimmy in the summer of 2019. Jimmy’s killing triggered a war between the NSK and the IM, where rival gang members would shoot at each other on sight. [ 41 ] During the late evening of September 18, 2019, J.M. was hanging out at a bar in Regina.

Shortly after midnight, he and his girlfriend took a cab to the 2000 block of Osler Street and J.M. told his girlfriend to wait for him while he went to meet someone on the next block. J.M. walked south on the east side of Osler Street. On the 2100 block, a truck was parked on the wrong side of the street facing south, and J.M. approached the truck from the rear. J.M. noticed the vehicle when he was about 50 to 70 feet away. The truck had a single cab, was jacked up and had big tires.

J.M. thought the vehicle was a Chevy and it appeared to be an older style of truck. [ 42 ] As J.M. drew nearer, he noticed some people by the truck. At first, he noticed two people: the driver, who was standing next to the cab, and a passenger standing in the cargo bed or box of the truck. J.M. recognized the person standing in the cargo bed to be Stevenson. He did not recognize the driver. Apart from these two people, he saw no one else. [ 43 ] J.M. and Stevenson saw each other, and J.M. kept walking toward the truck. Then three things happened simultaneously.

Stevenson jumped down from the back of the truck and got into the cab on the passenger side. The driver got into the truck and started up the engine. A third person sat up in the back of the truck and J.M. saw that he was holding a rifle. J.M. did not notice the colour or calibre of the rifle. This third person rested the rifle barrel on the hind gate and pointed it at J.M. He was dressed all in black and wore a mask. [ 44 ] As soon as J.M. saw the rifle, he turned sideways, facing east, and began to run. He saw the truck starting to pull

away from the curb, heading south. He heard a bang. At first, he did not feel anything but when he reached an alley behind a row of houses, he noticed a big hole in his pants. [ 45 ] J.M. knocked on the door of a garage and of a house, but no one answered. He hurried back to the 2000 block of Osler Street and yelled for his girlfriend. Together they walked three to four blocks to Regina General Hospital. J.M. does not know how long this took, but he remembers making it to the hospital where he fainted from loss of blood.

He does not remember speaking to police at the hospital. [ 46 ] J.M. was discharged from the hospital on September 21, 2019. [ 47 ] J.M. testified that he did not know Sutherland although he had heard of him. Sutherland was not a member of the IM when J.M. was expelled, and J.M. did not know what rank Sutherland held. [ 48 ] J.M. identified Stevenson in a photo in Exhibit P2. He pointed out the IM tattoo on Stevenson’s middle finger. J.M. explained that, when a member becomes a crew boss, he gets another IM tattoo.

In this case, Stevenson had a tattoo of the number 9 on his index finger and a 13 on his ring finger, which correspond to the letters I and M in the alphabet. J.M. also explained that, when an IM member becomes a general, he will get a “patch,” which is another tattoo. [ 49 ] J.M. testified that there could have been more than three people in the truck, but he only saw three. He could not see inside the cab. [ 50 ] The shooting on September 19, 2019 was not the last attempt on J.M.’s life. He was shot twice in the head by Justin Papequash, an IM member, on October 30 or 31, 2019.

After J.M. went to the hospital, he was arrested on gun charges. J.M. was taken to the police station, where he gave a statement about the September and October shootings. He received an offer in exchange for providing a statement on both shootings and was placed in the witness protection program in November 2019. He was moved to a location out-of-province and provided with an apartment and $75 a week for food. He also underwent a six-month drug rehabilitation program. However, J.M. was terminated from the witness protection program in September 2020 because he violated its terms.

Consequently, he served a two-and-a-half-year prison term for his outstanding firearms offences. [ 51 ] At the time of trial J.M. had no gang affiliation or outstanding charges. [ 52 ] During his cross-examination, J.M. said that he did not recognize Sutherland on September 19, 2019. On October 31, 2019, after speaking to the police, J.M. identified Sutherland from a photo line-up as the person who shot him. J.M. testified that he learned Sutherland was the person who shot him from reports on the street. [ 53 ] J.M. confirmed that “greenlit” does not have a precise meaning.

He believed something would happen to him eventually, but he did not expect anything on September 19, 2019, which was about ten months after his falling out with Bellegarde. He also testified that, after the IM and NSK went to war, the gloves were off between the two gangs and members were expected to take violent action towards rival gang members. [ 54 ] Under cross-examination, J.M. testified that he did not see C.S. during the incident on September 19, 2019. [ 55 ] J.M. said that, after he was greenlit, he had seen Stevenson occasionally, without incident.

J.M. agreed that he had no particular beef with Stevenson, and they were generally on good terms. When asked if Stevenson had been trying to do anything to him, J.M. replied that he guessed not. [ 56 ] In closing submissions made by his counsel, the accused submitted that J.M. testified in a straightforward manner and was credible and reliable. Although J.M.’s testimony was at times hard to follow and involved some minor inconsistencies, he appeared truthful in giving his evidence.

I find his evidence to be credible and reliable in respect of material aspects of the alleged offences. [ 57 ] The only other witness who testified about the shooting was C.S. In September 2019, C.S. was living in Regina and was either a crew boss or a general in the IM. [ 58 ] During his direct examination, C.S. testified that, in September 2019, the IM was at war with the NSK. C.S.’s testimony about the cause or causes of the war was confusing. He testified that an IM member murdered Jimmy and the NSK wanted the IM to give the shooter up, but C.S. had said no to that.

While C.S. said that Jimmy’s murder had led to the war, he also referred to the NSK having taken “JayMo” in as a member. According to C.S., JayMo had stolen from Bellegarde by taking drugs and not paying for them, and he was greenlit because of the theft. C.S. said that Bellegarde touched base with the NSK and told them, in effect, you took him in, so the beef started. C.S. said that, if someone was greenlit, you hurt them if you saw them. C.S. said that everyone knew the order was out to kill JayMo.

C.S. was unable to identify JayMo by his real name but, from his testimony as a whole, he was obviously referring to J.M. [ 59 ] C.S. testified that he was at home during the evening of September 18, 2019. He got a phone call and was told that Stevenson was in trouble and needed help. C.S. testified that Stevenson was a crew boss with the IM. C.S. was not certain but believed the phone call came from Sutherland, a soldier under C.S.’s command.

According to C.S., Sutherland told him during the call that NSK gang members were banging on the door of Stevenson’s residence and taunting him. [ 60 ] C.S. testified that he knew Stevenson well and described him as a good friend at the time. He pointed Stevenson out in the court room.

[ 61 ] C.S. testified that Sutherland called him from the “Farm”, a place where IM members hang out located at the 1900 block of Montreal Street in Regina. The IM keeps drugs and guns at the Farm. C.S. and Sutherland met up at the Farm before going to pick Stevenson up. C.S. testified that the IM had guns for situations like this. Sutherland grabbed the SKS (a rifle), and they headed out the door. [ 62 ] C.S. testified about the SKS, which was the firearm used in the shooting. C.S. had acquired the SKS for the IM.

He explained that he picked out the rifle at the Cabela’s store on Gordon Road in Regina, and another gang member who held a license to acquire firearms purchased the gun. C.S. could not recall when the gun was purchased. C.S. identified the gun from a photo in Exhibit P2 and noted that the rifle’s stock had been modified after the purchase. [ 63 ] C.S. testified that, after the phone call, he and Sutherland got into a truck belonging to someone named Baker, who was a hanger-on and not an IM member.

C.S. described the vehicle as an old truck or a “truck-jeep.” Sutherland, Baker, and he drove to the 2200 block of Osler Street. They pulled up to the curb, on the east side of the road facing south, and called Stevenson. Stevenson came out of nowhere accompanied by a younger male, around 18 or 19 years old. C.S. referred to this fifth person as the “little guy” [Little Guy] and said he was trying to become an IM member. [ 64 ] According to C.S., Stevenson and he spoke near the back of the truck. They talked about doing a drive-by shooting, but C.S. could not remember whether he suggested this or Stevenson.

It was not clear from C.S.’s testimony whether Stevenson and he were talking alone or whether Sutherland participated in the conversation. C.S. said that Sutherland was lying in the cargo bed of the truck while Stevenson was standing on the road beside the truck. C.S. testified that the decision whether to do a drive- by shooting was Stevenson’s call and they were there for him. [ 65 ] C.S. testified that there was an apartment building on the 2200 block of Osler Street, and the NSK apartment in that building was next to Stevenson’s apartment.

C.S. said that they agreed they would shoot up the NSK apartment and Sutherland started messing with the gun. [ 66 ] C.S. said that, once the decision had been made, he knelt down to take the truck’s license plate off. According to C.S., Baker was in the driver’s seat, the Little Guy was standing next to Stevenson on the street, and Sutherland was in the truck box. While C.S. was kneeling, he heard Baker shout, “Watch out,” and a gun shot went off right by his head. C.S. then saw Sutherland holding the gun, aiming behind him.

C.S. was facing the back of the truck and did not see who was behind him. [ 67 ] C.S. testified that Sutherland said, “I got JayMo, I shot JayMo.” C.S. said, “Let’s get out of here.” Stevenson was on C.S.’s right, outside the truck, when the shot was fired. Stevenson and C.S. got into the cab, while Sutherland and the Little Guy laid down in the cargo bed. [ 68 ] According to C.S., they drove to a nearby house owned by an IM supporter where they stashed the gun. [ 69 ] C.S. testified that they went back to the Farm. The mood was festive. They called Bellegarde to let him know that Sutherland had shot JayMo.

C.S. testified that Bellegarde later promoted Sutherland to crew boss because he had shot J.M. [ 70 ] C.S. also testified that he spoke to Stevenson that night about the Little Guy. C.S. wanted to know if he could be trusted or if they should get rid of him. According to C.S., Stevenson said that the kid was trying to become a member of the IM and was solid. [ 71 ] C.S. testified that they were not expecting to find JayMo that night, but they were all gangsters and knew what to do. If they encountered JayMo, they expected a soldier to kill him.

C.S. testified that Bellegarde had said multiple times that he wanted JayMo to get hit. C.S. said that Bellegarde told him JayMo was greenlit because he had stolen a large amount of money, $20,000.00 to $25,000.00. [ 72 ] C.S. explained the process for promotion within the IM. It was Bellegarde’s call, but the generals would sit down with him over the phone and take a vote. C.S. testified that the IM had five generals in September 2019: Chad Barr (also known as Pitbull), Chad Pelletier, Stevenson, Misty Taypotat, and him. Sammy was the vice-president.

Each of the five generals, the vice- president and the president had a vote. C.S.’s evidence on Stevenson’s rank was confusing. He testified that Bellegarde said Stevenson was a crew boss, but C.S. believed Stevenson to be a general and they treated each other as equals. [ 73 ] C.S. also reviewed the photos of Stevenson in Exhibit P2. He confirmed that Stevenson had numerous IM tattoos. C.S. testified that a tattoo of the letter G with stars signified that Stevenson had made general and C.S. got the same tattoo when he made general. [ 74 ] C.S. described his activities within the IM.

He said that he was brought into the gang to bring in structure. The IM made money selling drugs and through extortion. If someone was selling drugs, C.S. and other IM members would kick their door in and take their money. The dealer could avoid further attacks by agreeing to sell IM drugs or paying a tax to the IM. [ 75 ] C.S. testified that the IM got the SKS back from the house where they had stashed it after the shooting. The IM had a couple of SKS rifles.

He said IM members dug a hole in the backyard of the house at 1927 Montreal Street, put the rifles in a box, and stashed them there. [ 76 ] According to his testimony, at that point C.S. decided to become a police informant. He had a new-born child and was done living life in the IM. He was trying to find a way to end his street life but did not know how to get out. He gave numerous statements to the police. He also took measures for his security. He went into the witness protection program and into drug treatment. He moved to a safe place living out of the province and got a job.

In the program, he receives an allowance for food, $125.00 every Monday and Thursday. The program pays his internet and his rent.

[77] Under cross-examination, C.S. agreed that since January 2020, he has been a professional witness and hastestified in many proceedings. His criminal record, marked as Exhibit P5, spanned convictions from 1994 to 2019, the most recent ofwhich was armed robbery using a firearm. He was convicted of trafficking in a scheduled substance on November 26, 2013 and servedtime in a federal penitentiary. C.S. had been a member of the NS but joined the IM after his release from prison. [78] C.S. admitted that he had participated in a home invasion with a firearm on October 24, 2019.

He was caughtexiting the house and held in custody. When asked if that’s when he realized his jeopardy, he said “no, I’ve been in trouble my wholelife”. When it was put to him that he was looking at a significant sentence, he said he was ready to do the time. He gave police astatement on October 31, 2019 and mentioned the shooting incident.

He was trying to show that he was willing to cooperate. [79] C.S. admitted he was using drugs, including crystal meth and fentanyl, in September and October 2019. [80] Under further cross-examination, C.S. said he was trying to tell the police the truth because he wanted help fromthem. He was remanded into custody. In January 2020, he was brought in to speak with police investigators again. The police knew hewanted to talk. He agreed that he gave statement after statement, including statements against Bellegarde and the IM generals,implicating them in homicides and robberies.

He testified against the co-participants in the home invasion and robbery. [81] This trial was the fifth time that C.S. testified in court. He acknowledged that he had many charges outstandingagainst him as of the date of his testimony, but they were not set for trial, and he did not know how they would go. A printout from theCourt Justice Information Management system, listing C.S.’s pending charges, was marked as Exhibit P6. [82] During his further cross-examination, C.S. was questioned about testimony he gave at the preliminary hearingand a statement he gave to police on October 30, 2019.

At the preliminary hearing, he testified that he was a crew boss, not a general, onSeptember 19, 2019, contrary to his testimony at trial. [83] Further, in a statement to police on October 30, 2019, he said that he received the phone call from Stevenson onSeptember 19, 2019. In cross-examination, he was asked whether Sutherland called him or Stevenson. He said it could have been either. [84] During further cross-examination, C.S. said that Baker’s “truck-jeep” was bright orange. He said it was possiblehe told Sutherland to bring the gun when they went to meet Stevenson.

He was also confronted with another difference between hisstatement to police and his testimony in chief. He testified that they met up with Stevenson at 2200 block of Osler Street but told police itwas the 2300 block. [85] During further cross-examination, C.S. agreed that Stevenson had asked him what to do when they met up onSeptember 19, 2019. C.S. said that the idea to do a drive-by shooting came from either Stevenson or him. In the statement he gave topolice in October 2019, he said the idea was his.

However, in January 2020, he said he had asked Stevenson what to do and they came tothe conclusion together that they would drive by and shoot up an NSK apartment. [86] During further cross-examination, C.S. was asked where Sutherland was during C.S.’s discussion withStevenson about committing a drive-by shooting. C.S. was asked about his evidence that Sutherland was in the back of the truck duringthe entire conversation. He confirmed that, as far as he could remember, Sutherland was in the truck.

However, during the preliminaryhearing, he had testified that Sutherland got back in the truck after they decided to shoot up the apartment. [87] After September 2019, C.S. continued to work for the IM and Sutherland reported to him. When asked ifSutherland shot J.M. to protect him, C.S. said he did not know. He also could not remember whether he had managed to take the licenceplate off the truck before they drove off after the shooting. [88] Under further cross-examination, C.S. does not recall whether he used drugs on the night of the shooting.

Atfirst, he said probably yes, as they were all doped out of their minds. However, that night, he had been at home, and he says he did notusually do drugs at home. He finished his answer by saying he could have been high. [89] C.S.’s evidence occupies the central position in the Crown’s theory of Stevenson’s guilt. [90] Several factors bring C.S.’s credibility as a witness into serious question. He is admittedly a former member ofthe IM. He is an accomplice to the incidents he describes in his testimony. He has outstanding criminal charges and may have a personalinterest in providing testimony in this case.

He may also have wanted to minimize his own involvement by, for example, suggesting thatStevenson was the person who made the call to retaliate against the NSK. I approach his testimony with the greatest care and caution. Irecognize that it would be dangerous to base a conviction on C.S.’s unconfirmed evidence and I have therefore considered whether histestimony is confirmed by independent evidence unconnected to him.

I also recognize that I could rely on C.S.’s testimony, even if it isunconfirmed by other evidence, provided that I found his testimony to be trustworthy. [91] The approach to be followed in assessing the testimony of an unsavoury witness such as C.S. was articulated bythe Supreme Court in Vetrovec v The Queen, (SCC), [1982] 1 SCR 811 at 830-2.

In R v Khela, 2009 SCC 4 at para 37[2009] 1 SCR 104, the Supreme Court summarized the framework for analysing the testimony of such witnesses: [37] In Sauvé [R v Sauvé (2004), (ON CA), 182 CCC (3d) 321], at para. 82, the Ontario Court of Appeal set out aprincipled framework that will assist trial judges in constructing Vetrovec warnings appropriate to the circumstances of each case.

Thatproposed framework, which I adopt and amplify here, is composed of four main foundation elements: (1) drawing the attention of thejury to the testimonial evidence requiring special scrutiny; (2) explaining why this evidence is subject to special scrutiny; (3) cautioningthe jury that it is dangerous to convict on unconfirmed evidence of this sort, though the jury is entitled to do so if satisfied that theevidence is true; and (4) that the jury, in determining the veracity of the suspect evidence, should look for evidence from another sourcetending to show that the untrustworthy witness is telling the truth as to the guilt of the accused (R. v.

Kehler, 2004 SCC 11, [2004] 1S.C.R. 328, at paras. 17-19).

[Emphasis in original] [92] As noted by Dawson J. in R v Keepness, 2009 SKQB 466 at para 85, 348 Sask R 49 [Keepness], a trial judgesitting without a jury must also be guided by these same principles, although it is not necessary to apply the caution in a rigid manner. [93] After reviewing C.S.’s testimony as a whole, I am not satisfied beyond a reasonable doubt that it is reliable. Ihave considered carefully any independent evidence that would confirm the trustworthiness of C.S.’s evidence. Some independentevidence is consistent with portions of C.S.’s testimony.

For example, J.M.’s version of events confirms some aspects of C.S.’stestimony, but there are also significant inconsistencies between their accounts. The SKS rifle was recovered by the RPS from thebackyard of the residence at 1927 Montreal Street in Regina, a fact admitted by the accused which is consistent with C.S.’s testimony. [94] The supporting evidence does not strengthen my belief that C.S.’s version of events is accurate or reliableregarding Stevenson’s involvement in the offence committed by Sutherland.

The most critical parts of C.S.’s testimony are unconfirmed.Moreover, C.S.’s testimony about his encounter with Stevenson on Osler Street and the events immediately surrounding the shooting haschanged over time. C.S. has said at various times that the plan to commit a drive-by shooting was his idea, that it was his andStevenson’s jointly, and that it was Stevenson’s call. He testified that this discussion took place between himself and Stevenson alone,while Sutherland was in the truck box. At the preliminary hearing, he testified that Sutherland was party to this conversation.

These arethe most critical elements of C.S.’s testimony at this trial, and the inconsistency of his accounts leaves me with a reasonable doubt aboutwhat was discussed (if anything) about a drive-by shooting and who participated in the discussion. DISCUSSION General Principles of Criminal Liability [95] In reaching my decision, I have borne in mind several principles fundamental to criminal law. First, the accused,Thomas Stevenson, is presumed innocent of the offences charged until the Crown has proven his guilt beyond a reasonable doubt: R vLifchus, (SCC), [1997] 3 SCR 320 at para 39 [Lifchus].

Second, the Crown must prove each element of the offenceswith which Mr. Stevenson is charged beyond a reasonable doubt. In Lifchus at para 39, the Supreme Court provided a model juryinstruction to explain the criminal standard of proof as follows: [39] … The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice.

Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [96] A reasonable doubt can arise from the evidence or from the absence of evidence: R v Wilde, 2022 SKCA 74 atpara 29. [97] There is no distinction between the perpetrator and a secondary party to an offence for the purposes ofdetermining criminal liability: R v Briscoe, 2010 SCC 13 at para 13, [2010] 1 SCR 411 [Briscoe]; R v Cowan, 2021 SCC 45 at para 29,409 CCC (3d) 287 [Cowan].

Where an accused is tried alone and the evidence shows that more than one person participated in theoffence, the Crown is not required to prove the identity of the other participants or the role each played in order to prove the accused’sguilt as a party: Cowan at para 31. However, the Crown must prove that any one of the individuals aided by the accused participated inthe offence either as a principal offender or as a party: Cowan at para 37. Stevenson Did Not Aid Sutherland to Commit the Offence. [98] The Crown alleges that Stevenson aided Sutherland in committing the offence, relying upon s. 21(1)(

b) of theCriminal Code, which reads: 21

(1) Every one is a party to an offence who … (

b) does or omits to do anything for the purpose of aiding any person to commit it; or … [99] The actus reus and the mens rea for aiding and abetting are distinct from the principal offence: Briscoe at para13. In this case, the Crown argued that Stevenson aided Sutherland to commit the offence. As the Crown made it clear that it did notregard Stevenson as an abettor, nothing further will be said about that mode of participation. [100] For the purposes of s. 21(1)(

b) of the Criminal Code, to aid means “to assist or help the actor ….”: Briscoe at

para 14. To be liable as an aider of the offence, the accused must have done something that assisted the principal offender to commit theoffence: R v Huard, 2013 ONCA 650 at para 62, 302 CCC (3d) 469 [Huard]. The mens rea of aiding arises from the phrase “for thepurpose of” in s. 21(1)(

b) in the Criminal Code. The aider must have intended to assist the principal to commit the offence and musthave known that the principal intended to commit the offence: Briscoe at paras 15-17; Huard at para 63. The aider does not need to sharethe principal’s intent to commit the offence: Briscoe at para 18; Huard at para 62.

However, “mere presence and passive acquiescence”at the commission of an offence, without “prior knowledge of the principal offender’s intention to commit the offence or attendance forthe purpose of encouragement” does not support a conviction for aiding or abetting: R v Dunlop and Sylvester, (SCC),[1979] 2 SCR 881 at 896 [Dunlop]. [101] In the agreed statement of facts, the accused has admitted that Sutherland pleaded guilty and was sentenced fordischarging a firearm at J.M. on September 19, 2019. It is also admitted that J.M. was injured when he was struck by the bullet from thefirearm.

There is no dispute that Sutherland was the principal offender in this case. [102] The issue I must address is whether Stevenson was a party to this offence. To establish that Stevenson aidedSutherland to unlawfully discharge a firearm, the Crown must prove beyond a reasonable doubt that Stevenson provided some assistanceto Sutherland to commit the offence; that Stevenson intended to assist Sutherland to commit the offence; and that Stevenson knew thatSutherland intended to commit the offence. [103] The Crown’s theory is that Stevenson formed a plan to shoot up a residence associated with a rival gang.

Justbefore the plan was carried out, the IM’s number one enemy randomly walked up on the group of IM members, including Stevenson,and Sutherland – a soldier who was supposed to take violent action – shot and wounded J.M. The Crown contends that Stevenson, as asecondary party, is also liable for that shooting. [104] The Crown concedes that the requisite subjective intent for attempted murder has not been proved. The Crownsays that there was a collective desire to see J.M. dead but acknowledges that the evidence does not establish that Stevenson had therequisite subjective intent on the night in question.

However, the Crown says that Stevenson should be convicted of the lesser includedoffence of discharging a firearm at a person with intent to wound, maim or disfigure contrary to s. 244(1) of the Criminal Code. [105] In addressing the actus reus of s. 244(1) of the Criminal Code, the Crown notes that the wording “whether ornot” in the

section encompasses circumstances where a shooter hits someone other than the intended target – such as the situation wherea gunman fires into a crowd. The Crown says the only difference here is that J.M. appeared and was shot at before, rather than during,the planned drive-by shooting. The Crown says that C.S. and Stevenson jointly formed the idea to shoot at the NSK apartment and thatStevenson intended Sutherland to discharge the firearm.

Further, Stevenson was present when Sutherland loaded and racked the firearmin the box of the truck. [106] The Crown argues that Stevenson aided Sutherland to intentionally discharge the firearm at J.M. and relies uponthe following alleged facts, all of which are drawn exclusively from C.S.’s evidence: (

a) Stevenson called his fellow gang members to act upon rival gang members. (

b) Stevenson indicated the apartment where NSK members were located. (

c) Stevenson planned the drive-by shooting with C.S. and Sutherland, where it was agreed that Sutherland would shoot fromthe box of the truck. (

d) Stevenson participated in hiding the firearm after the shooting. (

e) In response to concerns raised by C.S., Stevenson made sure that the Little Guy was solid. [107] As for the alleged post-offence conduct of Stevenson, the Crown submits that the court can infer a guiltyconscience from the nature of the subsequent aid. [108] The defence argues that Stevenson was a mere bystander to Sutherland’s offence and, citing Dunlop, contendsthat Stevenson’s presence at the time of the shooting does not amount to aiding Sutherland. The defence urges the Court to rely uponJ.M.’s account of what happened.

J.M.’s only evidence regarding Stevenson was that they recognized each other as J.M. was walkingtoward the vehicle and J.M. then saw Stevenson getting into the passenger side of the cab at the same time that Sutherland aimed thefirearm at him. [109] I have concluded that the Crown has not proven beyond a reasonable doubt that Stevenson aided Sutherland tounlawfully discharge a firearm at J.M. I reach this conclusion for several reasons. [110] First, I do not accept the evidence of C.S. about what took place on September 19, 2019. As indicated, I haveconcluded that C.S.’s testimony is not credible or reliable.

I find that none of the alleged facts recited by the Crown to support itsassertion that Stevenson aided Sutherland to discharge a firearm with the intent to wound J.M. has been proved beyond a reasonabledoubt. [111] Second, while Stevenson was present when Sutherland shot J.M., I find that Stevenson did not provide anyassistance to Sutherland when he committed the offence. J.M. showed up unexpectedly while the IM members had just met up withStevenson on Osler Street. It was known to IM members that J.M. had been greenlit by Bellegarde and that Bellegarde wanted them toattack J.M.

Sutherland would not have needed prompting from Stevenson or anyone else if he saw J.M. approaching him. The facts are

consistent with Sutherland acting on his own initiative once he spotted J.M. [112] Third, when C.S., Sutherland, and Baker arrived at the 2100 block Osler Street, Sutherland already had the SKSwith him. When J.M. was approaching the back of the truck, Sutherland simply had to sit up, aim and fire. [113] Fourth, even if I had accepted C.S.’s evidence, the unlawful act they were planning was a drive-by shooting of adwelling, the offence set out at s. 244.2(1) of the Criminal Code (intentional discharge of a firearm into or at a place).

If C.S.’s accountwere believed, they were not discussing discharging a firearm at a person. There is no evidence that Stevenson intended to assistSutherland to fire at a person. Accordingly, the Crown’s analogy to the circumstance where a gunman fires into a crowd and hitssomeone other than the person intended is inapplicable. [114] For the foregoing reasons, I find that the Crown has not proven beyond a reasonable doubt that Stevenson aidedSutherland to commit the lesser included offence of discharging a firearm at a person with intent to wound contrary to s. 244(1) of theCriminal Code.

Stevenson Did Not Form an Intention in Common with Sutherland to Commit an Indictable Offence. [115] As an alternate basis for criminal liability, the Crown relies upon s. 21(2) of the Criminal Code, which reads: 21 …

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone 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. [116] Section 21(2) of the Criminal Code establishes a broader basis for criminal liability than s. 21(1).

It applies wherethe offence committed is different than the one the parties had originally planned to assist in committing but was a probable consequenceof carrying out the original common unlawful purpose: R v Cadeddu, 2013 ONCA 729 at para 50, 304 CCC (3d) 96 [Caddedu]. Section21(2) of the Criminal Code extends liability in two respects. First, it extends liability to persons who have participated in an unlawfulenterprise with others and either knew or should have known that one of the other participants in the original enterprise would likelycommit another offence in pursuing that enterprise.

Second, it extends criminal liability for incidental or collateral offences committed inthe course of carrying out the original unlawful purpose: R v Simon, 2010 ONCA 754, 263 CCC (3d) 59, leave to appeal to SCC refused,. As explained in Caddedu at para 53, there are three elements for liability under section 21(2) of the Criminal Code: (

a) agreement: participation of the party in a common unlawful purpose; (

b) offence: commission of an incidental and different crime by another participant; and (

c) knowledge: foreseeability of the likelihood of the incidental crime being committed. [117] The first element is an agreement between the parties to carry out an unlawful common purpose, which must bedifferent from the incidental offence that was actually committed. The agreement does not need to be formed in advance but can arise atthe time the offence is being committed: Caddedu at para 56. The parties must agree to carry out a common unlawful purpose and toassist each other in doing so: R v Moore (1984), (ON CA), 15 CCC (3d) 541 (Ont CA) at page 551.

If there is anagreement to assist in carrying out a common unlawful purpose, a party will be liable even if he or she does not provide actual assistance:Keepness at para 50. [118] The second element is the commission by a party to the common unlawful purpose of an offence different thanthe one intended. This incidental or collateral offence must be committed by a party, other than the accused, while carrying out theoriginal agreement: Caddedu at paras 59-60. [119] The third element is knowledge, which may be actual or constructive.

The accused will be liable if he or sheactually knew or ought to have known that the offence committed by the principal was a probable consequence of the unlawfulagreement. To determine what the accused actually knew, the trier of fact must look to the words and conduct of the accused before,during and after the offence.

To determine whether the offence was foreseeable, the standard is what a reasonable person would haveforeseen in the same circumstances: Caddedu at paras. 61-62. [120] The Crown’s concession that Stevenson should be acquitted of attempted murder was necessary, since Stevensoncould not be convicted as a party to that offence unless it was shown that he had the requisite subjective intent for attempted murder.Proof of subjective foresight of the consequences is required for a conviction as a party to attempted murder: R v Logan, (SCC), [1990] 2 SCR 731 at 744-7. [121] R v Colacicco and Forest, 2009 MBQB 247 at para 20, 254 Man R (2d) 1, is an example of a case where anaccused was acquitted of attempted murder but convicted as a party to the included offence of discharging a firearm with intent towound.

The accused did not fire the gun, but he had formed a common intention with another person to carry out an unlawful purpose –to confront two individuals with threats to find out whether they were police informants and, if necessary, to shoot one or both of them.The court found that the accused knew or ought to have known that the shooting which occurred was a probable consequence of carryingout the common purpose. (

a) Agreement

[ 122 ] I will now review whether there was an agreement between the parties. I am not satisfied beyond a reasonable doubt that Stevenson and C.S. had agreed to commit a drive-by shooting when they met up briefly on Osler Street on September 19, 2019, before J.M. unexpectedly arrived on the scene. Further, I am not satisfied beyond a reasonable doubt that Sutherland, the principal offender, participated in this discussion at all.

Accordingly, I am unable to find that the parties formed an unlawful common purpose and that the offence committed by Sutherland was incidental to the carrying out of that purpose. [ 123 ] The only evidence on this crucial point came from C.S. and his testimony was inconsistent and unreliable. C.S.’s account at trial was that Stevenson had decided to commit the drive-by shooting and that it was his call to make. At other times, C.S. said that the idea was his. Most importantly, C.S. testified that the conversation was between Stevenson and him.

He did not testify at trial that Sutherland was involved in the discussion. If he was not, he could not have been party to an agreement to commit an unlawful purpose. This is fatal to the Crown’s theory. (

b) Offence [ 124 ] The second element is the commission by a party to the common unlawful purpose of an offence different than the one intended . It is undisputed that Sutherland committed the offence of discharging a firearm with the intent to wound J.M. This is an indictable offence. However, as I have concluded that a common unlawful purpose to commit a drive-by shooting has not been proven beyond a reasonable doubt, this element is also not satisfied. (

c) Knowledge [ 125 ] The final element is actual or constructive knowledge that the offence committed by the principal was a probable consequence of the unlawful agreement. Again, as I have concluded that an unlawful agreement has not been proved beyond a reasonable doubt, this element is also not established. (

d) Conclusion on s. 21(2) of the Criminal Code [ 126 ] For the foregoing reasons, I find that the Crown has not proven beyond a reasonable doubt that Stevenson was a party to the lesser included offence of discharging a firearm at a person with intent to wound contrary to s. 244(1) of the Criminal Code . Stevenson Did Not Commit an Indictable Offence for the Benefit of, at the Direction of, or in Association With the Indian Mafia. [ 127 ] I will now turn to Count 1 of the indictment. [ 128 ] With respect to the charge under s. 467.12(1) of the Criminal Code , the Crown must prove beyond a reasonable doubt each of the following elements: (

a) that the accused committed an indictable offence; (

b) there was a criminal organization; (

c) the accused knew the group had the characteristics that make it a criminal organization; (

d) the accused committed the offence for the benefit of, at the direction of, or in association with, the criminal organization; and (

e) the accused committed that offence with the necessary state of mind: R v Crawford , 2022 SKQB 115 at para 4 . [ 129 ] In this case, for Stevenson to be convicted of this offence the Crown must first prove beyond a reasonable doubt that he committed an indictable offence.

As the law makes no distinction between parties to criminal offences, if I had found Stevenson guilty of Count 2, I would also have held that he committed an indictable offence for the purposes of Count 1. [ 130 ] I am also satisfied beyond a reasonable doubt that the Indian Mafia is a criminal organization and that, as a member of the IM, Stevenson knew at all material times that the IM had the characteristics that make it a criminal organization. The testimony of Cst. Weir and J.M. left no doubt that the IM is a criminal organization, as defined at s. 467.1(1) of the Criminal Code .

One of the main purposes of the IM is to traffic in substances contrary to s. 5 of the Controlled Drugs and Substances Act , SC 1996, c 19 , including cocaine and methamphetamines. Further, on September 19, 2019, Stevenson was a crew boss in the IM and was involved in its activities, including drug trafficking. [ 131 ] Nevertheless, I need not review this alleged offence in greater detail. From my reasons set out above, it follows that Stevenson must also be found not guilty of Count 1. CONCLUSION [ 132 ] Accordingly, I find the accused, Stevenson, not guilty of Count 1.

I find the accused not guilty of the offence of attempted murder in Court 2. Further, I find the accused not guilty of the lesser included offence of discharging a firearm at a person with intent to wound contrary to s. 244(1) of the Criminal Code . J. P.T. BERGBUSCH