IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Dingwall, |
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2017 BCSC 1457 |
Date: 20170721
Docket: 44239
Registry: Prince George
Between:
Regina
v.
Meranda
Leigh Dingwall, Kelly Michael Richet and
Christopher Ryan Russell
Before: The Honourable Mr. Justice Abrioux
Oral Reasons for Judgment
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Counsel for Crown: |
G.R. McDonald A.E. Norlund |
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Counsel for Accused, Meranda Leigh Dingwall: |
B. Gilson, Q.C. |
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Counsel for Accused, Kelly Michael Richet: |
C.R. Carleton |
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Counsel for Accused, Christopher Ryan Russell: |
C.K. Aartsen |
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Place and Date of Trial: |
Prince George, B.C. June 26-30, 2017
& |
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Place and Date of Judgment: |
Prince George, B.C. July 21, 2017 |
Table of Contents
II. THE LEGAL PRINCIPLES REGARDING CIRCUMSTANTIAL EVIDENCE
C. The Admissions and Uncontested Evidence
D. The Additional Evidence: Troy Harju and the Surveillance Video
E. Discussion Regarding the Additional Evidence and Further Findings of Fact
B. Parties to an Offence, Wilful Blindness and Possession and Control
[1] These are my reasons for judgment in this matter. When I delivered the oral reasons, I noted I would not cite or summarize all the paragraphs in the various legal authorities to which I refer, but would do so in the written reasons to be released in due course. These are those written reasons.
[2] Meranda Dingwall, Kelly Richet and Christopher Russell are charged on a 19 count Indictment with offences that allegedly relate to a drive-by shooting, which occurred in Mackenzie, British Columbia in the early hours of July 7, 2016.
[3] The offences include or included:
(a) Counts 1 and 2: attempted murder of Michael Matson (“Matson”) and Lyle Suter (“Suter”);
(b) Counts 3 and 4: discharging a firearm at Matson and Suter;
(c) Count 5: intentionally discharging a firearm while being reckless as to the life or safety of another person;
(d) Count 6: committing the aggravated assault of Suter;
(e) Counts 7 and 8: possessing a loaded prohibited or restricted firearm without being the holder of an authorization or a licence and possessing a prohibited firearm, restricted firearm or non-restricted firearm knowing they were not the holder of a license or a registration certificate;
(f) Counts 9 and 10: causing mischief to private property, being a motor vehicle, the property of Debra Eagle (“Eagle”), and intentionally or recklessly causing damage by fire to that motor vehicle;
(g) Count 11: carrying or having in their possession a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence;
(h) Count 12: storing a firearm contrary to a regulation under the Firearms Act, S.C. 1995, c. 39;
(i) Counts 14, 16 and 18: possessing a firearm while prohibited from doing so; and
(j) Counts 15, 17 and 19: possessing ammunition while prohibited from doing so.
[4] Count 13 of the Indictment also charges that Ms. Dingwall, having been released on an undertaking pursuant to section 515 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”), did fail to comply with that undertaking or recognizance in that she had contact with Mr. Richet. Prior to the conclusion of the Crown’s case, Ms. Dingwall entered a plea of guilty to this count.
[5] At the commencement of the trial, the Crown stayed Counts 1 and 2, which relate to the offence of attempted murder in relation to all three of the accused. At the conclusion of the Crown’s case, it also stayed the counts relating to the offences of possession of ammunition in relation to all three of the accused, being Counts 15, 17 and 19.
[6] The Crown’s case is based entirely on circumstantial evidence. The accused, as is their right, did not testify and lead no evidence on their behalf.
[7] Since the Crown’s case is based entirely on circumstantial evidence, the real issue in this case is whether, as the trier of fact, I am satisfied beyond a reasonable doubt that the only rational inference to be drawn from the evidence is the guilt of the accused in relation to the drive by shooting and the subsequent burning of the Eagle vehicle. If, as the accused submit, there are other reasonable inferences other than guilt, then the Crown does not meet the standard of proof beyond a reasonable doubt: R. v. Poony, 2017 BCSC 1136, at para. 15 [Poony], citing R. v. Villaroman, 2016 SCC 33.
[8] Furthermore, as Justice Wedge noted in Poony:
[16] However, the Crown's burden is to negative other reasonable possibilities which are inconsistent with guilt. The Crown is not required to negative every possible conjecture, no matter how speculative. As the Court concluded at para. 38:
… the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[17] … I am mindful of the decision of the Supreme Court of Canada in R. v. Walle, 2012 SCC 41, at paras. 64 to 67, where the Court observed that the trier of fact is entitled to apply the common sense inference that “a person usually knows what the predictable consequences of his or her actions are, and means to bring them about…”
…
[19] Equally important in a case such as this is the legal principle discussed by the Supreme Court of Canada in R. v. Morin, [1988] 2 S.C.R. 345, where the Court confirmed that the trier of fact should not conduct a piecemeal analysis of the evidence. It is not each piece of evidence that requires proof beyond a reasonable doubt; it is the cumulative effect of the evidence that must be considered. Individual facts are “a link in the chain of ultimate proof”, but it is the evidence as a whole that must be considered with respect to each element of the offence the Crown must prove.
[Emphasis in original.]
[9] The following principles also apply:
(a) in some cases, in the absence of a credible explanation, an inference of knowledge may properly be drawn from the circumstantial evidence: R. v. To, [1992] B.C.J. No. 1700 (B.C.C.A) [To], cited with approval in R. v. Vu, 2002 BCCA 659 at para. 25 [Vu];
(b) where an alternative inference is asserted, there needs to be some evidence to support it: Vu at para. 26;
(c) the trial judge is entitled to apply ordinary human experience and common sense in his/her assessment of the evidence. He/she should not apply speculative reasoning: R. v. Bi, 2011 BCCA 10, at paras. 15-16; and
(d) as far as competing inferences from circumstantial evidence that might be open to a trial judge are concerned, he/she is not expected to:
… treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty:
To at para. 41, McEachern C.J.B.C., cited with approval in R v. Ngo, 2009 BCCA 301 [Ngo] at para. 55.
[10] Unless I specify a different date, all evidence referenced in these reasons took place on July 7, 2016.
[11] A significant number of admissions of fact were made by the accused, pursuant to section 655 of the Criminal Code. I have considered all these admissions in reaching my conclusions, but will only refer to certain of them in these reasons. Certain admissions related to surveillance video taken at the Office Bar and Grill, a business establishment located on Mackenzie Boulevard in Mackenzie, British Columbia, close to the scene where the shooting occurred (the “Surveillance Video”).
[12] The Crown also lead the evidence of several RCMP officers who attended at and/or who were involved in the investigation of the shooting at 221 Crysdale Drive, Mackenzie, British Columbia (“221 Crysdale”) and the site where the white 1989 Chevrolet truck belonging to Ms. Eagle (the “Eagle Truck”), which I find was the vehicle involved in the shooting, was found burning approximately 30 minutes thereafter (the “Burn Site”).
[13] It also lead evidence from Corporal Stephanie Murray, who collected gunshot residue (“GSR”) from the accused, and Dr. Nigel Hearns, who was qualified to give expert evidence regarding the forensic examination, analysis and identification of GSR.
[14] A witness to the shooting, Troy Harju, testified at the trial, as did Cheyenne Inyallie, who was a passenger in a vehicle proceeding towards Mackenzie shortly after the shooting occurred. Certain admissions related to the evidence of Nathan Findlay, who was also driving towards Mackenzie that morning and who observed the burning Eagle Truck on a logging road, a short distance off Highway 39.
[15] In its written argument, the Crown submits that “much of the evidence before the Court in this matter is either admitted or uncontroversial”. I agree with this statement, but will describe further in these reasons that portion of the evidence which is either not admitted or requires particular consideration, such that the Crown’s case can be considered in its totality.
[16] Mackenzie B.C. is a town of approximately 4,000 inhabitants and is located approximately 185 kilometers north-west of Prince George, B.C. Highway 39 is the only highway in and out of Mackenzie and ends in the town itself. The portion of Highway 39 within the town boundaries is called Mackenzie Boulevard.
[17] Highway 39 is accessed from Highway 97, being the principal highway which goes from Prince George to Prince Rupert, B.C. The Mackenzie junction (the “Junction”) is approximately 160 kilometers from Prince George and 22 kilometers from Mackenzie.
[18] When entering Mackenzie from the direction of the Junction, the scene of the shooting, 221 Crysdale, is located in one of the first subdivisions on Mackenzie Boulevard.
[19] The Burn Site is located approximately 20 kilometers from Mackenzie, on Highway 39, in the direction of Prince George, and is approximately seven kilometers from the Junction itself. The only access to the Burn Site is from the logging road off of Highway 39.
[20] Bear Lake, where the accused were arrested on the morning of July 7, 2016, is located on Highway 97, approximately 75 kilometers north of Prince George and approximately 110 kilometers south of Mackenzie. Bear Lake is approximately 95-100 kilometers from the Burn Site.
[21] The accused were all residents of Prince George on July 7, 2016.
[22] On July 7, 2016, Dingwall was the registered owner of a white GMC Yukon, BC licence plate BT2 12A (the “Dingwall Yukon”).
[23] At all material times, the Eagle Truck, which was destroyed by fire at the Burn Site, was the property of Debra Eagle.
[24] On July 6, 2016, at approximately 5:00 a.m., the Eagle Truck was taken from Debra Eagle without her permission.
[25] At the time it was taken, the Eagle Truck was parked in front of Debra Eagle’s home located in Prince George, B.C.
[26] At the time of the theft, the Eagle Truck contained a handicapped parking pass issued to Ms. Eagle by the Social Planning and Research Council of British Columbia (the “Parking Pass”). A canister containing kerosene was also in the Eagle Truck at the time.
[27] Ms. Eagle did not give anyone permission to take the Eagle Truck from her possession on or about July 6, 2016, nor did she give anyone permission to possess the Parking Pass.
[28] Ms. Eagle does not know any of the accused.
[29] The Parking Pass located in the Dingwall Yukon during the search by the RCMP on July 8, 2016 is the Parking Pass belonging to Ms. Eagle.
[30] At all material times, none of the accused had Ms. Eagle’s permission to possess the Parking Pass.
[31] On July 7, 2016, at approximately 4:00 a.m. neighbours of the residence at 221 Crysdale heard loud bangs.
[32] Mr. Cheyenne Inyallie was a passenger in his truck being driven by his uncle, which was proceeding towards Mackenzie in the early morning hours that day. He was a supervisor at the Duz-Cho Forest Products mill in Mackenzie and was expected at work at approximately 4:30 a.m.
[33] At approximately 4:05 a.m. to 4:10 a.m., his truck came around a corner and approached a logging road. I find that this logging road was the logging access road where the Eagle Truck was later found to be burning. His truck was going at a “normal speed of 90 kph”. Approximately 100 feet away, across from the entrance to the logging road facing southbound on Highway 39, Mr. Inyallie saw two vehicles. The first was what he believed to be a white older model “suburban type” vehicle which was moving slowly in a southern direction. Behind the suburban was a newer model white Ford truck with what he believed to be a double cab. Mr. Inyallie stated that it was still “fairly dark” and he was unable to identify any individuals or give any descriptions of the occupants of either vehicle. He first saw the two vehicles as the lights from his truck shone on them.
[34] He observed the white truck to back up across the northbound lane, that is, in front of him, onto the logging road. The white truck appeared to reverse down the logging road for a distance of approximately 100 feet.
[35] His truck slowed down somewhat. He and his uncle considered stopping to see if any assistance was required, but decided they should proceed towards his workplace since he did not want to be late.
[36] Mr. Inyallie then observed the suburban “take off but very slowly” in a southerly direction. It had its brake lights on. He last saw its rear lights as it crested a hill south of the logging road.
[37] At 4:31 a.m. Nathan Findlay was driving towards Mackenzie, when he observed a truck burning. This truck was later determined to be the Eagle Truck. He approached the vehicle to see if anyone was hurt and took two videos and some photographs on his phone.
[38] At 5:52 a.m., Corporal Warwick was travelling northbound on Highway 97 from Prince George to Mackenzie, having been dispatched to 221 Crysdale, with his police canine to assist in the investigation of the shooting. While en route, he had been made aware of the presence of a white vehicle similar in make and markings to the Dingwall Yukon at what later turned out to be the Burn Site. He observed a vehicle generally matching the description he had been given proceeding southbound towards Prince George on Highway 97. He turned his police vehicle around and followed it for a short distance before activating his emergency lights which resulted in the Dingwall Yukon pulling into the gas station/general store at Bear Lake at 5:55 a.m. He then arrested Dingwall, who was driving, and the two other occupants, being Richet and Russell, at that time. The accused were cooperative with the police at all times.
[39] I would add that neither Suter nor Matson cooperated with the police or Crown Counsel and did not testify at the trial.
[40] Cpl. Warwick was holding his police issued carbine rifle when he directed the accused to exit the Dingwall Yukon. They lay face down on the ground where he placed handcuffs on them. They remained in that position until three other members of the RCMP arrived at Bear Lake. Each member then took control of one of the accused and placed them in custody in separate police vehicles.
[41] Corporal Murray, who was trained to take GSR samples, also attended Bear Lake and took GSR samples from each of the accused. Certain of the samples which were analysed were positive for GSR; that is the GSR on the hands of all three accused was, based on the expert evidence of Dr. Hearns, consistent with having discharged a firearm, being present when a firearm had been discharged or with handling a firearm that was discharged within the previous two to four hours.
[42] The three police officers, who placed the accused in their police vehicles, and Cpl. Warwick, stated that if they had been made aware GSR samples were going to be obtained from the accused, they would have taken additional precautions to reduce the possibility of cross contamination. The defence takes serious issue with the GSR evidence and I will consider this issue later in these reasons.
[43] Several police officers testified as to their actions at 221 Crysdale that morning. These actions included locating Matson on the roof of the residence in a frightened condition. According to a police officer, Matson was attempting to “surreptitiously” remove himself.
[44] There was also police evidence about the presence of a newer model white Ford truck outside 221 Crysdale while they were conducting their investigations that day. There was no evidence lead as to any inquiries or investigation made by the police as to its possible involvement in the shooting, although the truck’s owner was subsequently ascertained.
[45] Cpl. Warwick attended 221 Crysdale that morning and then attended the Burn Site. There he observed the still smouldering Eagle Truck which appeared to have become stuck in mud on the logging road. It was facing towards Highway 39.
[46] From the photographs entered into evidence, it is clear that it had rained in the time frame prior to the time that the Eagle Truck was set on fire.
[47] Later that morning, Cpl. Warwick, with the assistance of his police canine, located the firearm that had been used in the shooting (the “Firearm”) in some forest brush off the logging road in an area behind a landing area used to store cut timber. The Firearm was approximately 75-100 meters behind the Eagle Truck, that is, further up the logging road and further away from the highway.
[48] It is admitted that on July 7, 2016, Suter suffered a wound within the meaning of s. 268 of the Criminal Code, which was in the form of a hole through his left calf muscle.
[49] The Firearm was a 1911A1 C .45 automatic caliber semi-automatic handgun, which is a restricted firearm. The serial number of the Firearm had been effaced and, at the time it was found by police, it was loaded with ammunition.
[50] Expended cartridge cases located by the RCMP at 221 Crysdale on July 7, 2016, were discharged from the Firearm, as were fired bullets located by the RCMP at that location. Accordingly, the Firearm located in the vicinity of the burnt Eagle Truck on July 7, 2016, was that used in the shooting at 221 Crysdale.
[51] Two pieces of a broken headlight were located by Cpl. Murray at the Burn Site on the logging road itself, between the edge of the highway and the location of the burnt Eagle Truck. The pieces of headlight were positively matched to the Dingwall Yukon by Cpl. Murray in her evidence.
[52] On July 7, 2016, all three accused were prohibited from possessing firearms by an order made under the Criminal Code or another Act of Parliament.
[53] Mr. Troy Harju testified that on the evening of July 6, 2016, and the early morning hours of July 7, 2016, he had been out with friends in Mackenzie. By approximately 3:30 to 4:00 a.m., he was outside his residence. He acknowledges that he was intoxicated at the time and would not have operated a motor vehicle.
[54] He said that it was light at the time he made his observations.
[55] He observed a white single cab Chevrolet pickup truck speed past his home at 7 Manson Crescent, turn onto Crysdale Drive and stop in front of 221 Crysdale. Mr. Harju, who had owned a blue 1994 truck of the same type, recognized the truck he observed to be an old 90’s vintage pickup truck.
[56] The truck that pulled up in front of 221 Crysdale had three occupants. Mr. Harju indicated he could clearly see three occupants — a driver and two passengers.
[57] At the time the truck pulled up, there were three people on the front lawn of 221 Crysdale, including a man named “Mike” who Mr. Harju believed to own the residence.
[58] I would add that this observation is corroborated by the evidence of Constable Hawco and Corporal Baldinger, who testified that they knew the residence in question to be the home of Michael Matson. Police would later find Matson hiding on the roof of 221 Crysdale.
[59] Mr. Harju observed the two passengers get out of the truck, with one holding the truck’s passenger door open. The other passenger walked around the back of the truck, which was facing Mr. Harju, and up to the curb of 221 Crysdale. That person then raised a handgun and shot three to four times towards the residence and the three people on the front lawn.
[60] The three people ran towards the house, but one collapsed when he was shot through the leg.
[61] Mr. Harju could not identify the occupants of the truck that pulled up in front of 221 Crysdale, as they had “baggy clothing”, wore “hoodies” and “had their faces covered with something”.
[62] Photographs of the accused taken at the RCMP detachment in Prince George on July 7, 2016, were entered into evidence. Two of the accused, one being Dingwall, were wearing a hooded garment.
[63] On cross examination, Mr. Harju confirmed the occupants had baggy clothing. When pressed about the height of the shooter he stated that he was “a little bigger than me, I’m a small guy”, being five feet four inches tall.
[64] He was also cross examined on the variance in his description of the persons he observed at 221 Crysdale in his testimony and his 911 call. He confirmed that his description of both the shooter and the person holding the door “as between 5’6” and 6’ and skinny” was more accurate than his assertion in his evidence that he could not tell because they were wearing baggy clothes.
[65] Mr. Harju saw the shooter and the other passenger get back into the white single cab Chevrolet pickup truck. One of them entered the cab and the other jumped into the rear box of the truck which then sped off towards Pioneer Street, turned left and could be heard travelling south on Mackenzie Boulevard.
[66] Mr. Harju then ran to 221 Crysdale. He had industrial first aid training and obtained an electrical cord which he wrapped in a sheet prior to applying a tourniquet to the wounded man’s leg. He believed the wounded man’s name to be “Lyle or Kyle”.
[67] As I have noted, it is admitted that Lyle Suter was wounded and taken to the hospital for treatment.
[68] The Surveillance Video from the Office Bar and Grill, taken between approximately 3:30 a.m. and 04:15 a.m., shows amongst other things:
(a) a significant change in the lighting conditions from 3:30 a.m. to 04:00 a.m. The area in question goes from being almost completely dark such that planter boxes just outside the Office Bar are barely visible to, by 4:00 a.m., being light enough that the area across the highway is completely visible, although vehicles on Mackenzie Boulevard still had their headlights on;
(b) there are several trucks, some of which are white, which can be observed proceeding either north or south on Mackenzie Boulevard during this time frame;
(c) at 3:58:38 a.m., a white single cab pickup truck can be seen travelling southbound on Mackenzie Boulevard. The Crown submits that this is the Eagle Truck canvassing the area prior to the shooting. There is no object which can be observed in the box of the truck;
(d) between 4:02:35 a.m. and 4:02:44 a.m., a white single cab pickup truck is seen travelling from Pioneer Street onto Mackenzie Boulevard heading south. There is something large in the box of this truck, the Crown submits this is a person. The Crown also submits that while the person cannot be clearly seen, the person is visible when the truck first comes into view. The person then gets down into the box of the truck and is out of sight by 4:02:41 a.m., before the truck leaves the view of the surveillance video at 4:02:44 a.m.
[69] I found Mr. Harju to be a credible and, for the most part, reliable witness. While he was intoxicated at the time he observed the shooting, he was sufficiently aware of his surroundings such that I can safely rely on most of his observations. This is demonstrated by his ability to run to 221 Crysdale immediately after the shooting and to have the wherewithal to apply his industrial first aid training to assist Suter, including asking for a sheet to cover the electrical cord prior to applying a tourniquet. He was also able to drive Suter to the hospital, place him in the care of hospital personnel and then drive back to his residence.
[70] There is also Cst. Baldinger’s evidence, which is of some assistance on this point, stating that he did not observe any symptoms of intoxication in Mr. Harju when he spoke to him less than an hour after the shooting.
[71] I accept the ultimate reliability of Mr. Harju’s evidence regarding his observations of the events prior to, during, and subsequent to the shooting with one caveat. In my view, due to:
(a) the lighting conditions, which although becoming lighter by the minute were still not optimum;
(b) his relative distance from 221 Crysdale;
(c) the clothing worn by the occupants of the truck he observed; and
(d) the speed at which events unfolded.
I do not find his physical description of the occupants as being reliable.
[72] Having reviewed the Surveillance Video, I also find that the white truck observed at 3:58 am is the Eagle Truck, as is the white truck observed at 4:02:35 a.m. to 4:02:44 a.m. Other white trucks observed on the Surveillance Video are not similar to the Eagle Truck.
[73] I also conclude based on the totality of the evidence that:
(a) the white truck observed by Mr. Harju to be involved in the shooting is the Eagle Truck;
(b) the shooting occurred at approximately 4:00 a.m., that is, after the Eagle Truck is seen on the Surveillance Video at 3:58:38 a.m. and before it is observed for a second time at 4:02:35 a.m. to 4:02:44 a.m.;
(c) the shooter fired the Firearm at the individuals described by Mr. Harju, which included Suter and Matson;
(d) there is a person, visible on the Surveillance Video, in the box of the Eagle Truck at 4:02:35 a.m., that person is the shooter who Mr. Harju observed getting into the box of the Eagle Truck immediately after the shooting;
(e) the white suburban vehicle observed by Mr. Inyallie at the Burn Site was the Dingwall Yukon;
(f) Ms. Dingwall’s counsel is correct to have acknowledged in his submissions that his client was at what turned out to be the Burn Site at approximately 4:05 to 4:10 a.m.; and
(g) the individual(s) who burned the Eagle Truck were also responsible for hiding the Firearm.
[74] The Crown’s position is that it has presented evidence beyond any reasonable doubt that the accused took active part in the shooting at 221 Crysdale on July 7, 2016. It submits that the three accused, either took part in the shooting as principals, driving to the residence and committing the shooting personally, or as parties waiting nearby all in a planned scheme to aid the shooters in disposing of the evidence and escaping. According to the Crown, the evidence overwhelmingly points to only one reasonable conclusion—that the three accused intended to and did take part in a planned and organized shooting.
[75] The Crown acknowledges that the evidence does not establish with certainty who pulled the trigger and that it is likely that there is at least one other unknown participant and/or accomplice. It relies on s. 21 of the Criminal Code, which governs parties to an offence, to prove its case against the accused.
[76] The defence position is that there are several rational inferences which can be drawn from the evidence other than the guilt of the accused. They identify what they say are significant deficiencies in the Crown’s case, including the lack of any evidence, physical (such as fingerprints or DNA) or otherwise, linking them to 221 Crysdale.
[77] The accused also submit there is no physical evidence, such as fingerprints or DNA, linking them to the Eagle Truck, nor any mud on their clothing, or footprints or tire tracks at the Burn Site, which can link them to the shooting or its aftermath.
[78] They point to what they say are serious weaknesses in the GSR evidence, including the fact that there existed a real likelihood of contamination.
[79] They raise the issue of what they term “significant gaps” in the Crown’s case, including the 20 minute time differential between when the suburban is observed by Mr. Inyallie at the Burn Site shortly after 4:00 a.m. and when the Eagle Truck is observed burning by Mr. Findlay at approximately 4:30 a.m.
[80] Ms. Dingwall’s counsel notes, and the Crown accepts, that his client could not have been in two places at the same time, that is, at 221 Crysdale at approximately 4:00 a.m. when the shooting occurred and at the Burn Site five to ten minutes later.
[81] The accused also point to the presence of a newer model, white Ford truck that was not the Eagle Truck at the Burn Site, as observed by Mr. Inyallie, and the fact that a similar truck was observed by police officers at 221 Crysdale when they were conducting their investigations.
[82] In R. v. Briscoe, 2010 SCC 13 [Briscoe], Justice Charron summarized the applicable principles this way:
13 Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders, and abettors equally liable:
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
The person who provides the gun, therefore, may be found guilty of the same offence as the one who pulls the trigger. The actus reus and mens rea for aiding or abetting, however, are distinct from those of the principal offence.
[83] Justice Charron went on to discuss that, while aiding and abetting are frequently discussed together, they are in fact distinct concepts and that liability may result from either. Relying on R. v. Greyeyes, [1997] 2 S.C.R. 825 at paragraph 26, Justice Charron stated that, for the purposes of s. 21(1) of the Criminal Code, aiding “means to assist or help the actor”, while abetting “includes encouraging, instigating, promoting or procuring the crime to be committed”. After clarifying the different actus reus required to established aiding and abetting, respectively, the Court then went on to explain the mens rea that must exist to establish either of the offences:
15 … Specifically, in the words of s. 21(1)(b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.
16 The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that "purpose" in s. 21(1)(b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. The Court emphasized that "purpose" should not be interpreted as incorporating the notion of "desire" into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed (Hibbert, at para. 35). …
17 As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89):
... a person who is alleged to have aided in a murder must be shown to have known that the perpetrator had the intent required for murder under s. 229(a): R. v. Kirkness (1990), 60 C.C.C. (3d) 97 (S.C.C.) at 127.
…
18 … Kirkness should not be interpreted as requiring that the aider and abettor of a murder have the same mens rea as the actual killer. It is sufficient that he or she, armed with knowledge of the perpetrator's intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. It is only in this sense that it can be said that the aider and abettor must intend that the principal offence be committed.
[84] The precise role an accused played in a crime does not need to be determined as long as the court is satisfied that the accused either committed the crime or aided and abetted it. In R. v. Haevischer, 2014 BCSC 1863, Justice Wedge considered s.21(1)(a) in the context of two accused who were charged as co-principals for first degree murder:
[664] … However, as observed by Dickson C.J.C. in R. v. Thatcher, [1987] 1 S.C.R. 652 at para. 73, the law is indifferent whether the accused personally committed the offence as a principal or aided or abetted another in committing the offence, so long as the Court is satisfied beyond a reasonable doubt that the accused did one or the other.
[665] Section 21(1) is designed to prevent the acquittal of an accused who was either a principal or an aider/abettor, but whose precise role in the killings is unclear. Both forms of participation are not only equally culpable, but are to be treated as one single mode of incurring criminal liability: Thatcher, at para. 72. Thus, where evidence of concerted action in the commission of the offence exists, it is open to the Court to convict all of the accused either as principals or as aiders or abettors pursuant to s. 21(1), even though the extent of the individual participation in the violence is unclear: …
….
(d) Section 21(1)(a): Co-perpetrators
[667] Where several persons act together in the commission of an offence, liability under s. 21(1)(a) can be based on common participation. Thus, in relying on this basis for liability, the Crown must prove by direct or circumstantial evidence that Mr. Haevischer and Mr. Johnston acted together with Person X, and that each actively participated in the actus reus -- that is, the killings -- as a shooter or non-shooter, with the requisite mens rea for murder.
[Internal citations omitted.]
[85] The doctrine of wilful blindness, which imputes knowledge to an accused whose suspicion is aroused where he or she sees the need for making further inquiries, but deliberately chooses not to make those inquiries, applies to parties to an offence: Briscoe at paras. 19-24.
[86] While the Crown must prove that the specific offence charged was committed, an aider or abettor may be found guilty even where the actual perpetrator is unknown or not convicted: R. v. Hick, [1991] 3 S.C.R. 383.
[87] Accordingly, in this case, one or more of the accused can be convicted even if I am unable to determine who the principal offender(s) was or were.
[88] While a mere bystander is not liable for an offence, presence at the scene of an offence can be evidence of aiding and abetting: see Ngo and R. v Carrington, 2017 ONCA 2.
[89] To establish possession, which in this case relates to possession of the Firearm, the Crown must prove that the accused had both knowledge of and some act or measure of control over the item in question. Knowledge and control can be inferred from the surrounding circumstances.
[90] Possession can be personal, constructive, or joint and does not require any proprietary or ownership interest. The definition of possession is found in s. 4(3) of the Criminal Code:
4(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody or another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[91] R. v. Gagliardi, 2005 CarswellOnt 1543 (Ont.S.C.J.), applies these principles in a situation involving a firearm offence.
[92] In R v. B.(G.) [1990] 2 S.C.R. 30, Justice Wilson observed:
[42] …Accordingly, while it is trite to say that the Crown must prove every element of the offence in order to obtain a conviction, it is, I believe, more accurate to say that the Crown must prove all the essential elements. The Crown need not prove elements which are, at most, incidental to the offence. What the Crown must prove will, however, of necessity vary with the nature of the offence charged and the surrounding circumstances...
[93] When I apply the legal framework to which I have referred to the totality of the circumstantial evidence adduced in this case, I find that all the evidence, with the exception of the GSR, significantly corroborates the Crown’s case, being that:
· the accused Dingwall is guilty, as an aider or abettor pursuant to s. 21 of the Criminal Code of the offences with which she is charged in relation to the shooting at 221 Crysdale and as a principal or aider or abettor with respect to the burning of the Eagle Truck at the Burn Site;
· the accused Richet and Russell are guilty either as principals or aiders or abettors with the offences with which they are charged in relation to both the shooting at 221 Crysdale and the burning of the Eagle Truck at the Burn Site.
[94] Without repeating or summarizing the evidence to which I have referred, this is shown by:
(a) the narrow timeline between the shooting at 221 Crysdale and the burning of the Eagle truck;
(b) the link between the Eagle Truck, which was used in the shooting, and the Firearm being located a short distance away from the burnt truck at the Burn Site;
(c) the links between the Eagle Truck and the Dingwall Yukon, including the Parking Pass being found in the Dingwall Yukon, and the two pieces of a broken head light from the Dingwall Yukon, being found near the Eagle Truck at the Burn Site;
(d) the fact Dingwall drove to and from the vicinity of Mackenzie and the presence of both Richet and Russell in the Dingwall Yukon at the time of the arrest of all three accused;
(e) the fact all accused were in the vicinity of Mackenzie between approximately 4:00 a.m. and 4:30 a.m. even though they all resided in Prince George, approximately 190 kilometers away;
(f) individuals involved in the events at 221 Crysdale must have been familiar with that address or location bearing in mind the quick succession of events.
(g) they were in possession of the stolen Eagle Truck and the Firearm;
(h) these individuals were also present at the Burn Site and concealed the Firearm used in the shooting at that general location which could only be accessed from Highway 39.
[95] As I noted above, the real issue then becomes whether the guilt of the three accused is the only rational inference to be drawn from this body of evidence such that the Crown has not established all the essential elements of the offences beyond a reasonable doubt.
[96] I will now address the principal arguments raised by the accused in this regard, which I summarized above.
[97] The lack of physical evidence such as fingerprints, DNA, footprints, and tire marks either at 221 Crysdale and/or the Burn Site and the lack of mud on the accused’s’ clothing does not give rise to other rational inferences, or other reasonable possibilities, as to their guilt and does not raise a reasonable doubt. That is because the totality of the evidence is such that there is a clear link between the stolen Eagle Truck, which was used in the shooting, and the Dingwall Yukon in which all three accused were present when they were arrested in Bear Lake. This includes the Parking Pass and the pieces of the broken headlight found a short distance from the burning Eagle truck on the nearby logging road, not just southbound on Highway 39 being the location when the Dingwall Yukon was initially observed by Mr. Inyallie.
[98] This evidence should also be considered within the very tight timeline between when the Eagle Truck was first captured on the Surveillance Video, the timing of the shooting, the subsequent Surveillance Video footage and the timing of the observations of Messrs. Inyallie and Findlay.
[99] The accused point to the timing of the shooting itself, the first observation of the Dingwall Yukon and the time when Mr. Findlay observed the burning Eagle Truck. They submit that this 20 minute “gap” should give rise to reasonable doubt. I disagree.
[100] In my view, this so called gap does not provide another rational inference apart from the accused’s guilt. In fact it does the exact opposite. Ms. Dingwall was clearly at what turned out to be the Burn Site at approximately 4:05 a.m. – 4:10 a.m. when her vehicle was last observed by Mr. Inyallie to be driving slowly in a southward direction toward the Junction. Had Ms. Dingwall left this location and travelled on her route to Prince George at a normal driving speed of 90-100 kilometers per hour, she would have reached Bear Lake approximately an hour later, that is at 5:05 a.m. – 05:10 a.m. She in fact reached Bear Lake 50 minutes after that time, that is, at 5:55 a.m., when she and the co-accused were arrested by Cpl. Warwick.
[101] Accordingly, the only rational inference to draw from this evidence, when considered in the context of the totality of the evidence, is that the Dingwall Yukon stayed in the immediate vicinity of the Burn Site to assist the occupants of the Eagle Truck when they arrived at that location after the shooting. The Dingwall Yukon then departed the Burn Site with Richet and Russell before the burning Eagle Truck was observed by Mr. Findlay at approximately 4:30 a.m. This still left up to 30 minutes of additional unaccounted time from 4:05 a.m.– 4:10 a.m. before the Dingwall Yukon reached Bear Lake at 5:55 a.m.
[102] A rational conclusion to draw from the evidence, which is acknowledged by the Crown, is that there was at least one other vehicle, being the Ford truck seen by Mr. Inyallie, and an unknown number of accomplices involved in the shooting and the burning of the Eagle Truck.
[103] But this does not give rise to a reasonable doubt. The Crown does not have to account for the actions of all persons involved in the shooting and the burning of the Eagle Truck. Rather, it has to prove beyond a reasonable doubt all the essential elements of the offences with which these accused are charged. The involvement of others in the shooting and the burning of the Eagle Truck is, at most, “incidental” to the offences with which the accused are charged: R. v. B.(G).
[104] Nor does the presence of a late model white Ford truck at 221 Crysdale, the morning of July 7, 2016, raise a reasonable doubt. It would defy common sense for the owner or driver of that truck, having been involved in the shooting and/or the burning of the Eagle Truck to then return to the scene of the shooting a short time thereafter and park it in front of 221 Crysdale, knowing it extremely likely that at any moment the police would be arriving to investigate the shooting, which had occurred at that very location.
[105] The defence raise several theories with respect to the Parking Pass being found in the Dingwall Yukon. These include:
(a) the pass was sold or maintained by the thief in Prince George and passed on to one of the accused in the preceding 24 hours;
(b) the pass was recovered from the side of the road in Prince George as was a tire and lawn chair from that vehicle; or
(c) the pass was taken from the Eagle Truck by the person who drove the truck to its final location off of Highway 39 where it was found burning, never having entered Mackenzie.
[106] But there is no evidence upon which these inferences or theories could be based. The defence seeks to have me engage in speculative reasoning which I will not do.
[107] Ms. Dingwall’s counsel advanced but did not seriously press, the theory that the pieces of the broken headlight of the Dingwall Yukon could have come off the vehicle as it passed by the logging road as it was proceeding on Highway 39, and in some fashion then travelled the short distance up the logging road towards the area where the burning Eagle Truck was ultimately located. This theory, in my view, also defies common sense.
[108] I found all the police evidence to be credible and fair.
[109] In so far as the GSR evidence is concerned, I found Dr. Hearns’ evidence to be very fair and of assistance to the court.
[110] I accept that there are significant frailties in this evidence, which raise the issue of possible cross contamination potentially arising from:
(a) Cpl. Warwick’s handling of his carbine rifle when he arrested the accused and his subsequent contact with them;
(b) contact between the police officers who searched the accused at Bear Lake and the accused themselves;
(c) the possibility of GSR transfer from the gloves and/or duty belts worn by the police officers or contact between the accused and the interior of the police vehicles; and
(d) the acknowledgment of all the officers who searched the accused that they would have taken greater care to avoid the possibility of cross contamination had they been aware that GSR samples were to be taken.
[111] There is also the fact that the GSR samples, which were obtained from each of the accused, were at a very low to minute level.
[112] Notwithstanding these possible sources of contamination, Dr. Hearns remained of the opinion that the samples from each accused were what he would expect to see with a person who either discharged a firearm, was present when a firearm was discharged or handled a firearm that had been discharged within the previous two to four hours.
[113] I have concluded that the GSR evidence standing alone would be insufficient for the Crown to establish the accused’s guilt beyond a reasonable doubt.
[114] But it does form part of the totality of the evidence and, to that limited extent, corroborates the Crown’s theory of the case.
[115] In the alternative, if I am in error in placing any weight on this evidence, then what remains in the Crown’s case would not change the conclusions I have reached as to the accused’s guilt.
[116] For the reasons I have outlined, I have concluded that the only rational inference to draw from the evidence in this case is that the Crown has proven beyond a reasonable doubt all of the essential elements with respect to each count with which the accused remain charged, both in relation to the shooting and the burning of the Eagle Truck. Ms. Dingwall’s guilt is as an aider or abettor to the events at 221 Crysdale and as a principal or aider or abettor to the burning of the Eagle Truck. Mr. Richet and Mr. Russell’s guilt is either as principals or as aiders or abettors as to the events at 221 Crysdale and/or the burning of the Eagle Truck.
[117] In light of the admissions, which relate to the firearm offences on the Indictment and that on July 7, 2016, all accused were prohibited from the possession of firearms by an order under the Criminal Code or another Act of Parliament, it follows that the accused are also guilty of those counts which apply to each of them.
[118] Ms. Dingwall, please stand:
[119] I find you guilty on counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 16 of the Indictment.
[120] Please be seated.
[121] Mr. Richet, please stand:
[122] I find you guilty on counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 18 of the Indictment.
[123] Please be seated.
[124] Mr. Russell, please stand:
[125] I find you guilty on counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 14 of the Indictment.
[126] Please be seated.
[Discussion re application of Kineapple and other issues]
“Abrioux J.”