COPY OF REASONS FOR DECISION DELIVERED ORALLY FOR THE INFORMATION AND CONVENIENCE OF COUNSEL. IN THE EVENT OF CONFLICT BETWEEN THIS COPY AND THE REASONS DELIVERED ORALLY, THE ORAL REASONS SHALL PREVAIL
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COURT FILE NO.: CJ-10099
DATE: 20211222
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. P.B.
BEFORE: Justice D.A. Broad
COUNSEL: Vlatko Karadzic and Alyssa Bain, for the Crown
Steven Safieh, Steven Stauffer and Kate Zadorozhnya for the Accused P.B.
HEARD: October 12, 13, 14, 18, 19, 26 and 27, 2021
REASONS FOR DECISION
(Orally)
Background
[1] The accused P.B. was charged with three offences alleged to have taken place on November 19, 2018 at the City of Cambridge in the Regional Municipality of Waterloo as follows:
Count One: second degree murder on the person of Bradley Pogue, contrary to section 235(1) of the Criminal Code, RSC 1985, C-46;
Count Two: using a firearm while robbing Bradley Pogue, contrary to Section 344 (1) (a) of the Criminal Code;
Count Three: possessing a loaded, restricted firearm and not being the holder of an authorization or license under which he may possess the said firearm in that place, or a registration certificate for the firearm, contrary to section 95(1)(a) of the Criminal Code.
[2] P.B. was 17 years of age at the time of the offences alleged in the Indictment. He was therefore tried as a young person under the Youth Criminal Justice Act S.C. 2002, C.1 (the “YCJA”).
[3] Prior to trial P.B. re-elected to be tried by judge alone.
[4] On July 21, 2021 P.B. pleaded guilty to counts two and three in the indictment and the trial proceeded on October 12, 2021 with respect to the first count only, namely that P.B. committed second degree murder of Bradley Pogue.
[5] Pursuant to an Agreed Statement of Facts entered as an exhibit at trial, P.B. admitted to the following:
(a) he possessed a loaded restricted firearm on November 19, 2018 without being the holder of a license under which he can possess such a firearm and without being the holder of a registration certificate for the firearm;
(b) he knew the firearm was loaded when he possessed it;
(c) he robbed Bradley Pogue of a pound of marijuana on November 19, 2018 while armed with that loaded restricted firearm; and
(d) he acknowledges shooting Bradley Pogue thereby factually causing his death.
[6] The defence agreed that the sole issue for determination is whether the Crown has proven beyond a reasonable doubt that P.B. had at the relevant time the required specific intent to commit second degree murder of Bradley Pogue. The defence submits that the Crown has failed in that respect and that the correct result on the evidence is a finding that P.B. committed the offence of unlawful manslaughter.
Basic Principles
[7] It is useful to review the basic principles which apply to this prosecution and the nature of the burden of proof which rests on the Crown.
[8] The first principle is that P.B. is presumed to be innocent of the remaining charge in the indictment, unless or until the Crown has proven each of the essential elements of that count beyond a reasonable doubt.
[9] Reasonable doubt is not far-fetched or frivolous doubt. It is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. In order to convict him of second degree murder it is not enough to find that P.B. probably or likely committed that offence. However, the Crown is not required to prove with absolute certainty that he committed the offence.
[10] The existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.
Burden of Proof on the Crown
[11] P.B. did not testify at trial or lead any other evidence. He was under no obligation to do so.
[12] I remind myself that the duty on the Crown to prove P.B.’s guilt on the remaining count in the indictment exists from start to finish and never shifts. P.B. did not have to present evidence or to prove anything.
[13] In my review of the evidence that follows it is possible that reference may be made to the absence of evidence on a particular subject or issue. Any such comment or observation should not be interpreted as a shift of the burden of proof to P.B. or a requirement that he offer evidence.
Crown Evidence
(a) Evidence of Codi Pogue
[14] Codi Pogue was the older brother of the Bradley Pogue. To avoid confusion in this section I will call them by their first names. I mean no disrespect in doing so. Bradley was 24 and Codi was 27 in November 2018. At that time, they were residing together in Cambridge.
[15] In the early evening of November 19, 2018 Bradley and Codi were at their residence. At 7 PM Bradley advised Codi that he had to go to Brierdale Plaza to sell Adam De Gannes (“De Gannes”) “close to a pound of marijuana” in exchange for which he would be paid $1700.
[16] Codi argued with Bradley, advising him that he thought this was not a good idea as De Gannes was up to no good. Bradley insisted that he still wanted to go and advised that he did not know if De Gannes would be with any other person. Codi decided to accompany Bradley. Bradley carried the marijuana in a clear plastic bag inside a grocery bag as they left.
[17] Upon their arrival at the Brierdale Plaza, Bradley and Codi encountered De Gannes and another person, later identified as P.B., standing near the Circle K convenience store with hoods over their heads.
[18] At Codi’s suggestion the four of them entered the Double Double pizza shop. Codi went to the counter and ordered a beer. He overheard Bradley and P.B. bickering about where to do the marijuana deal. P.B. suggested that they leave the restaurant.
[19] The group left the restaurant and proceeded to the side of the building and stood by the wall. As Codi first approached them, Bradley and P. B. were five or six feet away from one another. Codi walked around P.B. and stopped five feet away from Bradley. De Gannes was standing on the left side of Codi and Bradley. He was a least 10 feet away from each of Bradley and P.B.
[20] Codi observed Bradley passing the bag of marijuana to P.B. who turned around to look at it. Bradley stated “it is all there buddy.” Codi could not recall if P.B. said anything. De Gannes was silent.
[21] Codi testified that P.B. turned the opposite way from Bradley and him and then turned back, pointing a gun. He pointed the gun initially at Codi who put his hands up saying “whoa, whoa, whoa, whoa.” P.B. then pointed the gun at Bradley. Codi stated that P.B. was 6 to 12 feet away from Bradley.
[22] Codi stated that P.B. had taken a couple of steps back when he turned around. Codi had backed up as well. He heard P.B. say something which he was unable to understand. Neither Bradley nor De Gannes said anything.
[23] Cody stated that the interval between when Bradley handed the marijuana to P.B. to when P.B. pointed the gun was “seconds.”
[24] Codi testified that he observed Bradley trying to “swipe” the gun away from P.B. moving his right hand from right to left after P.B. had said something. He stated that Bradley was “not even close” to connecting with his hand.
[25] Codi testified that after Bradley attempted to swipe the gun from P.B.’s hand it was “chaos.” He said that Bradley “face planted” with a bullet in his head. He testified that P.B. “basically pulled the trigger and shot Bradley right on the forehead on the top of his head.” Two shots were fired with no pause between them.
[26] Codi testified that each of P.B. and De Gannes ran away immediately after the shots were fired.
[27] Codi met with police after the shooting. He subsequently had conversations by Facebook with two friends A.J. Lucas and Katie Lucas regarding the events.
[28] On cross-examination Codi acknowledged that in his examination in chief he had said that P.B. had been as much as 12 feet away from him and Bradley, whereas at the preliminary inquiry he had testified that it was 5 feet. He responded that it could have been between 5 to 10 feet, but it was “within close proximity.” He said the gun was very close to him and to Bradley.
[29] Codi testified that Bradley was 5’11” in height. He described P.B. as “not tall,” estimating him to be 5’4” to 5’7.” He acknowledged that following the shooting he related to Police Officer Livingston that he saw Bradley “lunge” in a downward motion towards P.B. and agreed that “lunging” meant moving aggressively in a downward motion.
[30] Codi also acknowledged having told Police Officer Feron that Bradley “dove” at P.B. to try to knock the gun out of his hand. Codi explained that he was in distress at the time and had been trying to do the best he could in describing the events to police. He stated that it was possible that he also told his mother that Bradley “dove” at P.B. but could not remember.
[31] Codi maintained in his testimony that Bradley tried to “swipe” the gun and never had a chance to “dive” at P.B. because he had been shot.
[32] Bradley sustained a bullet wound to the top of his head. Codi stated that Bradley and P.B. were physically extremely close, within a few feet.
[33] Codi acknowledged that in his Facebook conversation with Katie Lucas, Katie asked “did the shooter look scared?” to which he responded “yupp scared soon bad of Brad scared scared so f...king bad.”
[34] Codi also texted to Katie: “he knew he was going to get starched” and “he knew that he was going to sleep. He had to shoot.”
[35] Codi wrote to Katie “the small white guy had to shoot” and if he did not he would have been beaten up. He wrote “they were so worried about Brad he needed a gun or, the loose everything they have and with me there just shocked them. [P.B.] was beyond shook the whole time he needed to do something drastic and he did.”
[36] Codi agreed with defence counsel’s suggestion that when he wrote that P.B. was “beyond a shock” he meant “scared so f..king scared.”
[37] When counsel asked Codi on cross-examination if he agreed with the suggestion that “robbery occurred. Gun pulled. P.B. scared and frightened. Brad lunged at P.B. and tragedy happened” Codi responded “yes. I agree to certain aspects of that.”
[38] On re-examination Codi clarified that he agreed that the gun was pulled and tragedy happened. However, he did not agree with the characterization of Bradley’s response as “lunging”. He stated that when he said P.B. was “scared” he did not mean it in the “literal sense.”
(b) Evidence of Matthew Bryant
[39] Matthew Bryant testified that in November 2018 he resided in Cambridge and knew P.B., having picked up drugs from him on prior occasions.
[40] During the evening of November 19, 2018 Bryant was at home with a friend Vitor Felega when he received a call or a text from P.B. at about 10:30 PM asking to be picked up. Bryant and Felega drove to a house in the Preston Heights neighbourhood and picked P.B. up along with De Gannes and a third male. He was unable to recall this individual’s name. The group drove to a residence on Hanley Crescent. P.B. went into the house and did not return to the vehicle for one and one-half hours. On his return P.B. asked Felega to get him a motel room. The group drove to the Super 8 Motel on Hespeler Road arriving at about 12:30 AM.
[41] Bryant testified that one or two hours after the group’s arrival at the Super 8 Motel he had a conversation with P.B. about the shooting. P.B. broke down crying, stating that he had gone with De Gannes to meet a guy (identified as Bradley Pogue) to “get some weed off him” and they “ended up robbing him.”
[42] P.B. stated that he met Bradley Pogue at the pizza store at the Brierdale Plaza. He said he showed Bradley Pogue the money to “assure him that everything was good.” P.B. said that when he turned to take the money out, he pulled a gun out instead and asked Bradley Pogue “what do you value more your life or one pound of weed?” P.B. stated that this was when Bradley rushed him and he panicked and pulled the trigger. Bryant stated that “he [ P.B.] never meant to kill the guy but was scared that the guy was going to hurt him.”
[43] Bryant testified that P.B. “seemed really that he regretted it” and “he genuinely seemed like he did not have an intention to kill the guy or for the night to go the way it did.”
[44] On cross-examination Bryant testified that P.B. seemed quite clear and perfectly understandable in their conversation. It appeared that P.B. needed to get the incident off his chest and seemed sincere in stating that he felt bad about the shooting and that it had not been intentional.
(c) Evidence of Vitor Felega
[45] Vitor Feleja testified concerning his involvement in meeting P.B. along with Bryant and a third individual in the late evening of November 19, 2018, “driving [them] around” and then renting a room or suite at the Super 8 Motel from the late evening of November 19 to the morning of November 20, 2018.
[46] I find that Feleja’s evidence went only to the narrative and is not material to the question of whether the Crown has proven beyond a reasonable doubt that P.B. had the necessary intent to support a conviction for second-degree murder. Neither Crown counsel nor defence counsel referred to Feleja’s evidence in submissions.
(d) Forensic Pathology Evidence
[47] Dr. Jennifer M. Dmetrichuk, currently a Forensic Pathologist with the Provincial Forensic Pathology Unit, Ontario Forensic Pathology Service, was qualified, on consent, as an expert in the field of forensic pathology for the purpose of providing her expert opinion in respect of identification, documentation, causation, interpretation of injuries and cause of death.
[48] Dr. Dmetrichuk testified that she conducted the post-mortem examination of Bradley Pogue on November 20, 2018. At that time, she was a Forensic Pathology Fellow in the Department of Pathology and Molecular Medicine, McMaster University. The post-mortem examination consisted of an external examination, x-rays, internal examination of the body, dissections and ancillary testing. Her report on the results of her post-mortem examination of Bradley Pogue was peer-reviewed.
[49] Dr. Dmetrichuk offered the opinion, based on her examination, that the cause of Bradley Pogue’s death was a penetrating gunshot wound to the head. Death would have occurred within seconds to minutes of this wound being sustained.
[50] A penetrating injury is caused by an object entering the body at a structure which does not pass all the way through.
[51] Dr. Dmetrichuk testified that the location of the entrance wound on Bradley Pogue’s head was on the right backside of the head, 5.5 cm from the posterior midline and 3.5 cm from the top of the head.
[52] The entrance wound to the head was round and showed no signs of soot (a carbonatious material associated with the combustion of gun powder) or stippling (little scrapes of skin caused by burnt, burning or unburnt gun powder causing the skin surface to be scraped away).
[53] Due to the absence of soot or stippling, Dr. Dmetrichuk characterized the range of the gunshot (the distance between the gun and the entrance wound) as “indeterminate.” This meant that the gun may have been at a distance from the entry wound or could have been closer. There could have been different surfaces, such as clothing or hair, between the weapon and the skin which could help explain the absence of stippling around the wound.
[54] Dr. Dmetrichuk also described an additional gunshot injury to Bradley Pogue’s body, namely a perforating injury to his left buttock.
[55] A perforating injury is caused by an object entering the body or a structure and passing all the way through, thereby creating both an entry and an exit wound.
[56] She observed the entrance wound on the left upper buttock, 8 cm from the midline and 81 cm from the top of the head and the exit wound on the inferior (or lower) left buttock, 10.5 cm to the left of the midline and 97.5 cm from the top of the head.
[57] Dr. Dmetrichuk detected no soot around the entry wound to the buttock but observed a 8.5 x 6 cm area of stippling. The presence of stippling suggests that the gunshot was from an intermediate range, which she characterized as generally a few centimetres to a few feet.
[58] Dr. Dmetrichuk was unable to offer an opinion on the order in which the two wounds were sustained.
[59] Two hypotheticals were put to Dr. Dmetrichuk by Crown counsel and additional hypotheticals were put to her by defence counsel on cross-examination, describing different scenarios of the distance between and positioning of each of P.B. and Bradley Pogue and the position of the handgun at the time of the shooting. Although Dr. Dmetrichuk agreed that each of the scenarios presented could be consistent with her observations and findings, there were too many variables to be definite concerning the relative positions of the parties and the handgun at the time of shooting
(e) Post-Offence Digital Exchanges by P.B. Extracted from his Cell Phone
[60] The Crown entered into evidence post-offence Snapchat exchanges between P.B. and two individuals extracted from his LG cell phone which was seized incident to his arrest on November 20, 2018
[61] There were five messages from P.B. addressed to an unnamed person using the digital address “Trapordie4020” between 10:46:50 and 10:50:24 AM on November 20, 2018. P.B. stated as follows in these messages:
10:46:50: I got a ahheee 10:47:36: N its on .ca 10:48:26: Camera n I wore no gloves my boys wanted for murder m these ppl knew him well 10:50:10: it didn’t mean to go like that the guy ran to tackle me I wigged him twice 10:50:24: Check the knews
[62] A lengthier series of messages were between P.B. and Amber Craig (“A.C.”) on November 20, 2018 commencing at 02:10:56 AM and ending at 10:46:08 AM. as follows:
A.C.: Trust me I told her P.B.: I don’t F..king care P.B.: I didn’t mean to do it He was a brave ducked F..ker A.C.: I had such a bad feeling this morning that something bad was going to happen I even told Jarod that this morning He’s got a daughter B P.B.: Stop telling me all this Tell Kate [agreed by counsel to be a reference to Katie Lucas] I know w Where she lives If any police come to my house Kate’s pla Is first place in going A.C.: I already told her she’s with the cops now and like I said earlier you’re clothes are long gone. What shoes were on? Kate don’t know your house or name for that to happen Was your face covered????? P.B.: Black a Dw bout the shoes A.C.: Ok We’re you covered up? P.B.: No Just hoodie Up A.C.: Ohhh my I’m so so sad and scared for you! If the police come here will know Kate talked How sure are you S [agreed by counsel to be a reference to De Gannes] isn’t going to talk when caught??? Murder is about as serious as it gets when it comes to charges and it’s going to be premeditated at that B. They say it’s a targeted shooting! Mooch should be the dead one right now! I wish this whole thing was just a baddddd dream and that we were being cuddle friends right about now:((((( She’s on her way over. She says she said nothing about you or this house. I will let you know when I know more Xo [messages omitted] P.B.: I’m staying out tn im gonna come tomorrow please don’t look at me as a different person amber please this was not the plan A.C.: I don’t look at you differently at all B not at all. I honestly believe you that it wasn’t the plan. I believe that and at the end of the day you don’t even know him like S does. Like I said earlier the will hear nothing from this girl or anyone for that matter from this house. How are you holding up? Honestly, we’re you on pams today? P.B. Yea I was on Pam’s They’ll prob have pics of my face all on the news. A.C.: Is there anyway you can pull it was self defence?? P.B.: I pulled it on him N his older brother A.C.: I think they might too with the news P.B.: N said wats worth more a pound of weed or ur life A.C.: Kate’s been talking with Cody tonight. P.B.: N they frozeup for a min Then buddy ran at me n trtd Try to tackle me. I had to shoot A.C.: I figured it went something like that. This is a nightmare B. P.B.: Otherwise I wud had been killed A.C.: Was S trying to help you at all? P.B.: He never needed to help me He needed my help N I did it for him Cus he’s low [additional messages omitted]
(f) Video of P.B. handling handguns extracted from his cell phone
[63] The Crown also entered into evidence a video extracted from P.B.’s LG cell phone recorded on November 9, 2018 commencing at 1:58:46 AM. The video depicts P.B. repeatedly handling two handguns. He is seen loading the magazines with cartridges multiple times, repeatedly turning and examining the guns and displaying them to the camera, raising the guns to shooting positions, looking though the front sights of the guns, setting the safety lock, pointing the guns repeatedly at other individuals in the room with him, pointing the guns repeatedly at the camera and placing the guns side by side on a surface which appears to be a bed.
[64] It is the Crown’s position that one of the handguns depicted in the video matches the appearance and configuration of the handgun recovered by the police and found by the Centre of Forensic Sciences to be the gun that caused the death of Bradley Pogue.
(g) Message from P.B. and photograph extracted from De Gannes’ cell phone
[65] The Crown entered into evidence a SMS message from P.B.’s Alcatel cell phone to De Gannes’s cell phone on November 17, 2018 at 11:03:56 AM and a photograph taken the next day on November 18, 2018 at 9:24:47 PM, both extracted by police under warrant from De Gannes’s Samsung cell phone.
[66] The message from P.B. to De Gannes on November 17, 2018 stated:
“wheres my money im gonna come to your crib ur pissing me off now making up lies just like a bucket. id call if I was u”
[67] The photograph taken on November 18, 2018 depicted De Gannes, P.B. and a third individual, who the parties agreed was P.M., all looking directly into the camera. Each of De Gannes and P.M. are shown pointing a handgun directly at the camera, with P.B. pointing his index finger with his thumb pointed vertically in the shape of a gun at the camera. De Gannes had a menacing look on his face. The lower part of P.B’s face was obscured by his hand and P.M.’s face was largely obscured by a shadow, so it is not possible to assess their facial expressions.
(h) Internet searches conducted from P.B.’s cell phone
[68] The Crown entered into evidence a record of 38 internet and Facebook searches conducted from P.B.’s LG cell phone on November 20, 2018 between 06:45:23 AM to 11:55:01 AM utilizing a variety of search inputs including “cambridge shooting” “shooting on brierdale cambridge” and “kitchener shooting” and variations thereof.
Guiding principles on the onus of proof on the Crown to prove second degree murder
[69] As indicated previously, the sole issue for determination in the trial is whether the Crown has discharged its onus to prove, beyond a reasonable doubt, that P.B had the requisite subjective intent to support a conviction for second-degree murder. If the Crown has failed to discharge this onus, P.B. must be found not guilty of second degree murder and found guilty of manslaughter, as there is no dispute that the homicide of Bradley Pogue was culpable.
[70] Subsection 222(1) of the Criminal Code provides that a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Subsection (2) provides that homicide is culpable or not culpable. Subsection (4) provides that culpable homicide is murder or manslaughter (or infanticide) and paragraph (5)(a) provides that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act.
[71] Paragraph 229(a) of the Code provides that culpable homicide is murder where the person who causes the death of a human being:
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.
[72] The first branch of the definition of murder at subparagraph 229(a)(i) is straightforward. It requires proof of the subjective intent of the accused to cause death.
[73] With respect to the second branch at subparagraph 229(a)(ii) the following passage from the reasons of Doherty, J.A., writing for the panel in R. v. MacDonald, 2008 ONCA 572 at paras. 40 and 41, is instructive:
The essential elements of murder as defined in s. 229(a)(ii) were examined in R. v. Nygaard (1989), 1989 CanLII 6 (SCC), 51 C.C.C. (3d) 417 (S.C.C.) and R. v. Cooper (1993), 1993 CanLII 147 (SCC), 78 C.C.C. (3d) 289 (S.C.C.). In Cooper at 294, Cory J. provides this description of the section:
This section was considered in R. v. Nygaard, supra. On the issue of the requisite intent the court was unanimous. At p. 435, it was said: The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought...
The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not.
As these authorities demonstrate, the word "reckless" in the section is in most fact situations redundant insofar as it purports to describe the requisite mens rea. What is important, however, is that the concept of recklessness not be described in a way that could detract from the Crown's obligation to prove beyond a reasonable doubt that the accused knew the bodily harm he inflicted was likely to cause death: Cooper, supra, at 295.
[74] The Supreme Court of Canada in R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252 confirmed at para. 19 that, in determining the accused’s state of mind at the time the offence was committed, the finder of fact may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result, it generally will be reasonable to infer that the person foresaw the probable consequences of the act. Thus, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.
(See also R. v. Magno, 2006 CanLII 21758 (ON CA), [2006] O.J. No. 2590 (C.A.) at paras. 18-19)
[75] In R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438 Moldaver, J. emphasized at para. 63 that the common sense inference that a sane and sober person intends the reasonable and probable consequences of his acts is permissive, not presumptive, and that before acting on the inference, the finder of fact must carefully consider the evidence that points away from it.
[76] In assessing the specific intent required for murder, the finder of fact should consider the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence (see Walle para. 65). If after considering the whole of the evidence, the finder of fact believes or has a reasonable doubt that the accused did not have one or the other of the requisite intents for murder at the time the offence was committed, it must acquit the accused of murder and return a finding of manslaughter. However, if there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence or if the pertinent evidence does not leave the finder of fact in a state of reasonable doubt about the accused’s intent, then the finder of fact may properly resort to the common sense inference in deciding whether intent has been proved (see paras. 66-67).
[77] Cory, J.A., (as he then was) in the case of R. v. Bains, [1985] O.J. No. 41 (C.A.) offered the following observations at para. 27 respecting the rational inference to be drawn, in the absence of any explanation, when a handgun is pointed at a vital portion of the victim’s body and fired:
All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed - to cause death. It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfil its design function and kill. An element of surprise arises only if death does not occur.
[78] The foregoing passage from Bains was approved very recently by the Alberta Court of Appeal in the case of R. v. Ledesma, 2021 ABCA 143 at para. 109.
Principles respecting the consideration of P.B’s exculpatory statements
[79] As indicated, P.B. did not testify or call any other evidence. However, the evidence led by the Crown included certain statements made by P.B. to others namely the individual using the Snapchat name “Trapordie4020” Matthew Bryant and Amber Craig that, in firing the gun twice at Bradley Pogue, he did not intend to kill him.
[80] The law requires that I take the following approach to P.B.’s statements to Matthew Bryant, Amber Craig and “Trapordie4020” that he did not intend to kill Bradley Pogue:
(a) if I believe P.B.’s statement or statements that he did not intend to kill Bradley Pogue or cause bodily harm reckless as to whether or not death ensues I must find him not guilty of second degree murder but guilty of manslaughter;
(b) even if I do not believe P.B.’s statements of his lack of intent to kill, if they leave me with a reasonable doubt about his guilt of second degree murder I must find him not guilty of that offence and guilty of manslaughter; and
(c) even if P.B.’s statements of his lack of intent do not leave me with a reasonable doubt of his guilt of second degree murder I may convict him of that offence only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.
(see R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.))
[81] The Court of Appeal in the recent case of R. v. Charlton 2019 ONCA 400 (C.A.) confirmed that W. (D.) may have application even when the accused does not testify or when the defence calls no evidence, when the trier of fact must make credibility findings based on conflicting evidence going to the essential elements of the offence.
[82] As noted by Code, J. in the case of R. v. Thomas, 2012 ONSC 6653 (Ont. S.C.J.) at para. 23, W. (D.) does not describe three sequential analytical steps that a trier of fact must pass through, but rather describes three distinct findings of fact that a trier of fact can arrive at when considering all of the evidence at the end of the case.
Position of the Crown
[83] Mr. Karadzic for the Crown points out that there is no controversy between the parties that the shooting of Bradley Pogue by P.B. was carried out during a drug rip-off perpetrated by P.B.
[84] In reference to the common sense inference that the trier of fact may draw that sane and sober persons intend the natural and probable consequences of their actions, the Crown submits that there is no evidence that P.B. was not sane and sober at the time of the shooting and little to detract from the common sense inference on the evidence.
[85] P.B.’s question to Bradley Pogue, immediately prior to the shooting, “what do you value more your life or a pound of weed,” as he related it to both Michael Bryant and Amber Craig, provides reliable insight into P.B.’s state of mind at the time of the shooting.
[86] Mr. Karadzic also points to the common sense inference derived from Bains that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation, the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. He submits that there is no evidence pointing away from the application of this inference.
[87] Mr. Karadzic submits that there is no evidence of any intent diminishing factor affecting P.B. such as intoxication or mental disorder which may detract from the application of the common sense inference that a person usually knows what the predictable consequences of his or her conduct or actions and means to bring them about.
[88] The Crown’s theory is that P.B. and De Gannes hatched a plan to rob Bradley Pogue. Bradley Pogue told Codi Pogue of his intention to meet with De Gannes at the Brierdale plaza for the purpose of selling him a pound of marijuana. It is not disputed that P.B. attended the planned marijuana rip-off armed with a loaded and concealed handgun. Mr. Karadzic submits that the “plan” involved the loaded firearm and it is reasonable to infer that part of the plan involved the use of the firearm in the event that the robbery was resisted - otherwise the Crown rhetorically asks - why was it brought and why was it loaded?
[89] P.B. pointed the gun at Bradley Pogue and then specifically threatened his life, suggesting that the question “what do you value more your life or a pound of weed” was not a spontaneous phrase. It was repeated by P.B. twice after the shooting, once by text to Amber Craig and once verbally to Matthew Bryant, suggesting that the use of the phrase was considered by P.B. in advance as part of the plan.
[90] The Crown also submits that two shots instead of one at close range within a split second of Bradley closing the distance on P.B. further strengthens the common sense inference that P.B. either intended Bradley’s death or intended to cause bodily harm that he knew was likely to cause his death and was reckless whether death ensued. The natural consequence of firing two shots from a lethal weapon at close range is that bodily harm will be inflicted on the person which will likely cause death and the Crown submits that, as a reasonable person, P.B. appreciated that this would be the result.
[91] Mr. Karadzic points to the video extracted from P.B.’s cell phone depicting him handling two handguns, including one matching the description of the gun utilized in the shooting, and submits that it also speaks to P.B.’s intent as it demonstrates that he was knowledgeable on the use of the safety, loading and unloading the weapon and of the use of the forward sight. He demonstrated the gun’s specific use in aiming at other persons’ heads. The video revealed P.B. to be confident and familiar with handguns and knew how to handle them safely.
[92] In his message to “Trapordie4020” P.B. related that he “wigged” Bradley Pogue twice leading to a common sense inference that P.B. thought, at the time that he was on the run from police, that he had shot Bradley Pogue twice in the head.
[93] Mr. Karadzic submitted that the question that P.B. asked Bradley Pogue “the weed or your life?” essentially meant “move and I will take your life.” In those circumstances whether Bradley swiped, dove, lunged, or tried to tackle P.B. is immaterial. Bradley was attempting to do these things to knock the gun out of P.B.’s hand. The point is that he did not follow P.B.’s instructions not to resist and because of that P.B. followed through on his threat and took his life.
[94] The Crown submits that, although both P.B.’s inculpatory and exculpatory statements are admissible, the court should afford less weight to his self-serving out-of-court statements untested by cross examination to individuals he was close to. P.B. would be fully expected to maintain to these associates that he did not intend to take Bradley Pogue’s life in the circumstances. He would not be expected to say that he intended for Bradley Pogue to die.
[95] Effectively P.B.’s statements represent a justification for what he intended to do rather than a denial that he intended Bradley’s death.
[96] The Crown submits that the court must be careful in using Codi Pogue’s evidence that P.B. “looked scared” as evidence of his actual emotional state and the reasons for that emotional state. Codi’s evidence on this point is speculation. Codi had never met P.B. previously and he was never asked about what physical features gave him the impression that P.B. was scared. Moreover, being scared does not detract from the existence of an intent to kill. There is nothing to suggest that a person taking another person’s life cannot be scared, including being scared due to the moral and legal consequences of their action.
Position of the Defence
[97] At the commencement of his final submissions, counsel for P.B. advised the court that he could not advance an argument that the Crown had failed to prove beyond a reasonable doubt that he was not acting in self defence when he fatally shot Bradley Pogue.
[98] The defence takes the position that, on the whole of the evidence, the Crown has failed to prove beyond a reasonable doubt that P.B. had either of the requisite intents to support a conviction of second degree murder as set forth in s. 229(a)(i) and (ii) of the Code.
[99] The defence supports its position with reference to the following observations and assertions which it says lead to a finding that there is reasonable doubt respecting whether P.B. had the requisite intent for second degree murder:
(a) P.B. made statements after the shooting and prior to his arrest to three associates, Matthew Bryant, Amber Craig and “Trapordie4020,” that he did not intend to kill Bradley Pogue but rather he felt afraid when Bradley Pogue attempted to tackle him and he reacted by shooting him. The consistency of the statements and the fact that they were made in circumstances of confidentiality support their reliability;
(b) the evidence of the forensic pathologist Dr. Dmetrichuk supports an inference that P.B. and Bradley Pogue were in close proximity at the time P.B. fired the two shots;
(c) the close proximity between P.B. and Bradley Pogue after Bradley Pogue moved towards P.B. by “diving” or “lunging” point away from the existence of the requisite specific intent to cause death or to cause bodily harm that was likely to cause death, as P.B. would not have had sufficient time to formulate such an intent or to aim the gun at Bradley Pogue; and
(d) the statement made by P.B. immediately prior to Bradley Pogue’s movement towards him and P.B. firing two shots “what do you value more, your life or one pound of weed?” was a “Hollywood stock phrase” uttered by a 17 year old which was unconnected to the shooting and Bradley Pogue’s death. P.B. fired the shots in response to being physically confronted by Bradley Pogue.
[100] Defence counsel Mr. Stauffer pointed to the fact that the communications between P.B. and Amber Craig were conducted on Snapchat, which has the feature that messages “tend to disappear,” suggesting that the conversation was intended by the parties to be private. He submitted that this increases the cogency of the evidence.
[101] Mr. Stauffer submitted that, in making the statements to Amber Craig, P.B. was not trying to sugar coat the events but was telling Ms. Craig exactly what happened. Because the Snapchat conversation with Amber Craig took place so soon after the incident, it represents a compelling contemporaneous account of what happened.
[102] Mr. Stauffer submits that what P.B. related to Matthew Bryant about the incident corresponded to what he told Amber Craig, namely that he did not “mean” to kill Bradley Pogue and that the shooting was in response to Bradley Pogue “rushing” him.
[103] P.B. stated in one of the messages to “Trapordie4020” “it did not mean to go like that the guy ran to tackle me I wigged him twice” being a description of the incident that was consistent with what he told Matthew Bryant and Amber Craig. Mr. Stauffer submitted that there is no evidence of what P.B. meant by “wigged” and nothing to support the inference sought by the Crown that he was referring to his belief that he had shot Bradley Pogue twice in the head.
[104] Mr. Stauffer pointed out that Codi Pogue agreed that he told Officer Livingston shortly after the shooting, that Bradley Pogue had “lunged” in a downward motion towards P.B. after P.B. had pulled the gun on him and agreed that Bradley had lunged forward in an aggressive motion. Mr. Stauffer submitted that this was a simple statement to the officer on the scene and accords with what P.B. told Matthew Bryant, Amber Craig and “Trapordie4020.” Codi Pogue had provided a similar description of the incident to Officer Feron and perhaps to his mother.
[105] Dr. Dmetrichuk described the distance between the muzzle of the gun to the entry wound to Bradley Pogue’s buttock as “intermediate,” being a few inches to a few feet, based on the presence of stippling around the entry point. Mr. Stauffer submits that, based upon Bradley Pogue’s height, if he were in a lunging motion he would have been extremely close to P.B. when the gun was fired, which corresponds with what P.B. told Matthew Bryant, Amber Craig and “Trapordie4020.”
[106] Dr. Dmetrichuk was unable to estimate the distance between the muzzle of the gun and the entry wound to Bradley Pogue’s head due to the absence of stippling or soot. She acknowledged that the absence of stippling could be explained by the presence of Bradley Pogue’s hair and also stated that, unlike stippling which is associated with burnt skin, soot was subject to being wiped off. Mr. Stauffer noted the evidence of Codi Pogue’s 911 call in which he was advised by the operator to apply pressure to the wound, which could have led to the removal of any soot from around the wound.
[107] Mr. Stauffer also pointed to the Facebook message exchange between Codi Pogue and Katie Lucas in which Codi told her that the shooter looked scared, an observation that is consistent with Bradley Pogue having lunged towards P.B. and the evidence of Dr. Dmetrichuk that P.B. and Bradley Pogue were in close proximity when the shots were fired. He submits that the only evidence which is contrary to this was that of Codi Pogue which varied widely on the issue of the distance between P.B. and Bradley Pogue at the time the shooting. Mr. Stauffer submitted that Codi’s evidence respecting the proximity of P.B. and Bradley Pogue at the time of the shooting was unreliable and that the preponderance of evidence derived from P.B.’s statements and from Dr. Dmetrichuk’s testimony supports a finding that they were extremely close.
[108] In reference to the video extracted from P.B.’s cell phone depicting him handling two handguns, Mr. Stauffer conceded that it was clear that P.B. knew how to load and point a gun. However, what can be inferred from the video is that he had little concept of how dangerous guns actually are. The depictions of P.B. appearing to point the gun at himself, rubbing the gun against his leg and pointing it at other persons in the room were indicative of his immaturity concerning guns and a lack of comprehension of their danger.
[109] Citing the Supreme Court of Canada decisions in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636 and R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633, Mr. Stauffer noted that, because a conviction for murder carries with it the most severe punishment and the greatest stigma, there must be proof of the special mental element which gives rise to the moral blameworthiness justifying the stigma and sentence attached to a murder conviction. Thus, a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death on the part of the accused (see Vaillancourt at para. 28 and Martineau at para. 9).
[110] Mr. Stauffer cited the case of R. v. Kives, 2000 BCSC 262 in which Paris, J. observed in passing sentence:
Since the decisions of the Supreme Court of Canada in Vaillancourt [1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636 (S.C.C.)] and Martineau [1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633 (S.C.C.)], causing the death of a person during the course of an armed robbery without an intention to kill, or the other very closely related intention set out in s. 229 of the Criminal Code, is not murder but manslaughter.
[111] As support for the defence position, Mr. Stauffer pointed to two cases in which the accused who had committed culpable homicide in the course of a robbery were acquitted of murder and convicted of manslaughter on the basis that the Crown had failed to prove beyond a reasonable doubt that they had the requisite intent for murder – R. v. Jabet, 2019 ABQB 863 and R. v. Singh, 2018 ONSC 3850.
[112] Mr. Stauffer submits that the circumstances of the case at bar, in which the evidence demonstrated that Bradley Pogue lunged at P.B., that the two were in close proximity and that P.B. reacted to the lunge by firing the gun twice, call for the same disposition as in Jabet and Singh, namely acquittal of the charge of second-degree murder and conviction of manslaughter.
Analysis
[113] As noted above, P.B. made statements describing the shooting to three persons within hours after the shooting, two in writing via Snapchat and one personally.
[114] Between 02:10:56 AM and 10:46:08 AM. on November 20, 2018 P.B. had a lengthy exchange of electronic messages via Snapchat with Amber Craig in which he told her “I did not mean to do it;” “ please do not look at me as a different person amber please this was not the plan;” “then buddy ran at me n trtd try to tackle me I had to shoot;” and “otherwise I wud had been killed.”
[115] Shortly after his last message to Amber Craig P.B. wrote five unanswered messages to an unidentified person using the Snapchat address “Trapordie4020” including “it did not mean to go like that the guy ran to tackle me I wigged him twice.”
[116] Matthew Bryant reported that in the late evening or early morning hours of November 19 to 20, 2018 P.B. told him that after he said to Bradley Pogue “what do you value more your life or one pound of weed?” Bradley rushed him and he panicked and pulled the trigger and that he “never meant to kill [Bradley Pogue] but was scared that he was going to hurt him.”
[117] Bryant testified to his perception of P.B. in their conversation - that P.B. “seemed really” regretful and that he “genuinely seemed like” he did not have the intention to kill Bradley Pogue.
[118] As indicated previously, I am required to take the approach laid down in W.(D.) to the statements made by P.B. to these three individuals in the hours after the shooting.
[119] In assessing whether to believe P.B.’s out of court statements I must consider whether the statements are credible and therefore worthy of belief.
[120] Hill, J. in the case of R. v. Williams 2010 ONSC 184 made the following observations respecting the assessment of credibility at para. 58:
A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities and improbabilities, inconsistencies within a witness' evidence, how a witness' version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, and witness demeanour.
[121] Although the full nature of the relationship between P.B. and Amber Craig was not disclosed in evidence, it can be inferred that their relationship was close and personal. Amber Craig remarked “I am so so sad and scared for you!” indicating that she cared for P.B. and was concerned about what could happen to him. Her comment that she wished “that we were being cuddle friends right about now” is indicative of a close relationship. It is also apparent that P.B. was anxious to maintain Ms. Craig’s approval, imploring her not to “look at me as a different person” by impressing on her that “this was not the plan.”
[122] P.B.’s statements to Ms. Craig were made on Snapchat, an app by which users exchange electronic messages. From the context it appears that they were engaged in a personal conversation by text, an electronic equivalent to a private telephone or in-person conversation.
[123] However, I am unable to accept the submission of Mr. Stauffer that the reliability of P.B.’s statements is enhanced by the private nature of the conversation. Persons can make unreliable statements to others in private as well as in public. There is nothing in the private nature of the exchange which per se makes the statements more reliable.
[124] P.B.’s statements to Amber Craig were self-serving. I can infer that he was seeking to justify his actions to her in an attempt to preserve her favourable perception of him, as reflected in his plea that she not look at him “as a different person” while maintaining that “this was not the plan” and, earlier in the exchange, that “I did not mean to do it.”
[125] I find that P.B.’s protestation that he “did not mean to do it” does not fit with other evidence in the case and with other statements made by him to his associates. P.B. planned a marijuana rip-off to which he took a loaded and concealed handgun. After taking possession of the marijuana from Bradley Pogue he initially turned away and then turned back, pointed the gun first at Codi Pogue and then Bradley Pogue and uttered the words “what is worth more a pound of weed or your life?’ By this statement P.B. was offering Bradley Pogue a choice, either to acquiesce to the rip-off by surrendering the marijuana without payment, or risk losing his life. When Bradley Pogue signified that he did not intend to acquiesce and moved toward P.B. in an attempt to disarm him, P.B. responded by shooting him twice, once in the head and once in the buttock.
[126] In my view, in the context of all of the evidence, P.B.’s statement that he “did not mean to do it” is implausible, given the choice that P.B. gave to Bradley Pogue (the pound of weed or his life) and Bradley’s Pogue’s response to having been given that choice.
[127] P.B.’s messages to “Tripordie4020” did not include a denial of an intent to kill but rather that “it did not mean to go like that.” In my view, P.B. was saying that the planned drug rip-off did not go the way he envisioned – not that he did not intend to kill Bradley Pogue when he shot him twice. He explained that “it didn’t mean to go like that” because Bradley Pogue ran to tackle him, thereby disrupting the way P.B. expected the rip-off to proceed, which lead P.B. to “wig” him twice.
[128] The Crown submits that the court can infer that by the use of the expression “wigged him twice” P.B. meant “shot him in the head twice” on the basis that a wig is worn on the head. I am unable to draw this specific inference. No expert or other evidence was led respecting the meaning of the slang term “wigged.” However, I am able to draw the inference that in saying he “wigged him twice” P.B. meant that he shot Bradley Pogue twice. On the evidence the only thing that P.B. did to Bradley Pogue twice was to shoot him.
[129] Even if the statement to “Tripordie4020” can be interpreted to mean that he did not intend to kill Bradley Pogue when he shot him twice, I find it implausible in the context of the entire evidence, for the reason stated above in relation to P.B.’s statements to Amber Craig.
[130] For the same reason I do not believe P.B.’s statement as reported by Matthew Bryant that “he never meant to kill the guy” after Bradley Pogue “rushed him” because he was “scared that the guy was going to hurt him.” In my view the statement that he lacked an intent to kill is implausible to the context of the choice P.B. offered to Bradley Pogue between a pound of weed and his life.
[131] Bryant’s testimony that P.B. “seemed really that he regretted it” and “genuinely seemed like he did not have an intention to kill the guy” reflect subjective impressions drawn by Bryant from his observations of P.B. and therefore represents demeanour evidence.
[132] In the case of R. v. V.(J.) 2016 ONCJ 399 at para. 127 Paciocco, J. (as he then was) offered the following useful observations respecting the danger of reliance on demeanour in assessing credibility:
I must also caution myself that while I can consider the manner in which a witness offers their testimony, I am not to rely unduly on my subjective impressions of the demeanour of witnesses, since demeanour can be a notoriously unreliable predictor of the accuracy of evidence: R. v. Johnson, supra at para. 126. Where it is appropriate to consider the demeanour of a witness, inferences are confined solely to credibility, not reliability, since demeanour is, at best an indicium of the witness's beliefs about facts, and not a factor confirming the reliability of those facts: R. v. Rhayel, 2015 ONCA 377 (Ont. C.A.) at para. 85. No decision to believe a witness should be based wholly or even substantially on that witness's demeanour. When demeanour is relied upon, it is helpful to offer cogent reasons as to why this is appropriate: R. v. M. (O.), 2014 ONCA 503, [2014] O.J. No. 3210 (Ont. C.A.) at paras 32-34.
[133] I find the facts that P.B.’s out of court statements were self-serving, untested and made to friends or associates contribute to the limited weight to be ascribed to them.
[134] At he first stage of the W.(D.) analysis, I do not believe P.B.’s statements to Amber Craig, “Tripordie4020” and Matthew Bryant that he did not intend to kill Bradley Pogue when he shot him twice.
[135] For the same reasons as stated above, I also find that P.B.’s exculpatory statements to Amber Craig, “Tripordie4020” and Matthew Bryant that he did not intend to kill Bradley Pogue do not leave me in reasonable doubt about his guilt of second degree murder.
[136] As indicated previously, even if P.B.’s statements of his lack of intent do not leave me with a reasonable doubt of his guilt of second degree murder, I may convict him of that offence only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.
[137] On the evidence led by the Crown, I make the following factual findings in respect of the events leading to and culminating in the shooting by P.B. of Bradley Pogue:
(a) P.B. and De Gannes made a plan to carry out a drug rip-off of Bradley Pogue whereby De Gannes would arrange to meet him, ostensibly to pay $1,700 in exchange for one pound of marijuana, and the marijuana would be taken from Bradley Pogue without payment;
(b) through a cell phone exchange on November 19, 2018 De Gannes and Bradley Pogue arranged to meet that evening at the Brierwood Plaza to conduct the proposed marijuana purchase transaction;
(c) after Bradley Pogue had arranged the meeting, Codi Pogue volunteered to accompany Bradley Pogue to the Brierwood Plaza to meet De Gannes;
(d) when Bradley and Codi Pogue arrived at the Brierwood Plaza they met De Gannes who was accompanied by P.B. Neither Bradley Pogue nor Codi Pogue were acquainted with P.B. Bradley Pogue had not been told by De Gannes that he would be accompanied by any other person;
(e) P.B. attended the arranged meeting armed with a concealed and loaded 9 mm handgun;
(f) Bradley Pogue was carrying a plastic bag containing marijuana;
(g) the four individuals entered the Double Double Pizza store where a discussion took place. P.B. and Bradley Pogue bickered about where to conduct the marijuana transaction. As shown in the video surveillance inside the pizza store, P.B. took a bundle of paper currency from his pocket and showed it to Bradley Pogue, however, P.B. did not give any of the money to him;
(h) the four individuals left the pizza store in succession and walked to the side of the plaza. P.B. and Bradley Pogue stood facing each other. Codi Pogue was standing beside Bradley Pogue. The evidence is equivocal with respect to the distance between P.B. and Bradley prior to him handing the bag of marijuana to P.B.;
(i) Bradley Pogue was approximately 5’11” tall. P.B. was estimated by Codi Pogue to have been between 5’4” and 5’7” tall;
(j) Bradley Pogue handed the bag of marijuana to P.B. who turned to look in the bag. Bradley Pogue stated “it is all there buddy;”
(k) P.B. initially turned away and then turned back to face Bradley Pogue and Codi Pogue pointing a handgun, initially at Codi and then at Bradley. P.B. stated to Bradley Pogue “what is worth more a pound of weed or your life?”
(l) Very shortly after P.B. made the foregoing statement Bradley Pogue moved toward P.B. in a downward fashion while moving his arm crossways in an attempt to knock the handgun out of P.B.’s hand. Bradley Pogue’s hand did not make contact with the gun or with P.B.’s hand;
(m) immediately after Bradley Pogue moved towards him P.B. fired the handgun at Bradley Pogue twice in quick succession. One bullet hit Bradley Pogue in the head and the other hit him on the upper left buttock;
(n) following a post-mortem examination, the examining forensic pathologist formed the opinion that Bradley Pogue’s death was caused by a penetrating gunshot wound to his head. Death would have occurred within seconds to minutes of the shot to his head;
(o) the forensic pathologist was unable to offer an opinion on the order in which the two wounds were sustained;
(p) the entrance wound to Bradley Pogue’s head was on the right backside of his head, 5.5 cm from the posterior midline and 3.5 cm from the top of his head. The entrance wound to Bradley Pogue’s left buttock was 8 cm from the midline and 81 cm from the top of his head;
(q) the distance from the muzzle of the gun and the entrance wound to Bradley Pogue’s head was characterized by the forensic pathologist as “indeterminate;”
(r) the distance from the muzzle of the gun to the entrance wound to Bradley Pogue’s left buttock was found by the forensic pathologist to be “intermediate” meaning a few centimetres to a few feet;
(s) immediately after the shooting P.B. and De Gannes each fled the scene.
[138] As indicated above, in determining an accused’s state of mind at the time the offence was committed, an inference may be drawn that a sane and sober person intends the natural and probable consequences of their actions. As this common sense inference is permissive and not presumptive, the finder of fact must carefully consider the evidence that points away from it. If there is no evidence that could realistically impact on whether the accused had the requisite mental state or if the pertinent evidence does not leave the finder of fact in a state of reasonable doubt about the accused’s intent, then the finder of fact may properly resort to the common sense inference in deciding whether intent has been proved,
[139] Although the inquiry of whether the accused has a culpable state of mind is ultimately a subjective one, the fact that a reasonable person would have foreseen the likelihood of death makes available the inference that the accused would have foreseen the likelihood of death.
[140] As provided in Bains when at close range a handgun is pointed at a vital portion of the body of the victim and fired, in the absence of any explanation, the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim.
[141] In my view these principles have application to the case at bar. P.B. brought a loaded and concealed handgun to a planned drug rip-off. There is nothing in the evidence to suggest that P.B. was not sane and sober at the time of the shooting. P.B. was at close range from Bradley Pogue and pointed it at him. From the fact that Bradley Pogue was shot in the head I can infer that the gun was pointed at a vital portion of his body.
[142] The questions for determination are therefore:
Is there evidence that could realistically impact on whether P.B. had the requisite mental state?
Does the pertinent evidence leave me in a state of reasonable doubt about P.B.’s intent?
If neither of these apply then I may properly resort to the common sense inference that P.B. intended the natural and probable consequences of his actions namely to cause the death of Bradley Pogue or to cause him bodily harm that he knew was likely to cause his death.
[143] The defence says that the close proximity between P.B. and Bradley Pogue and Bradley’s Pogue actions in “lunging” or “diving” at P.B. (or trying to tackle him) supports the existence of reasonable doubt that P.B. had sufficient time to formulate an intent to kill Bradley Pogue or to aim the firearm at him. The defence also says that P.B. reacted instinctively out of fear of Bradley Pogue’s actions by shooting at him without any intent to kill.
[144] I am satisfied that the evidence which the defence points to in support of these submissions, as described above, does represent pertinent evidence which could impact on whether P.B. had the requisite mental state. However, I find that this evidence does not leave me in a state of reasonable doubt about his intent.
[145] The Court of Appeal in Magno observed that a person’s state of mind may be determined by what they say and do. P.B. planned the robbery with De Gannes and came to it with a loaded and concealed handgun. As disclosed by the video created 10 days prior to the incident, P.B. was practiced in handling, loading, pointing and applying the safety on two separate handguns. One of the guns which he was depicted handling in the video was the same model as the one used to kill Bradley Pogue, if not the same weapon.
[146] It is not necessary for me to make a finding of whether P.B. in planning the robbery had rehearsed or planned to pose the question to Bradley Pogue of what he valued more, a pound of weed or his life. What is important that he said those words immediately upon turning back towards Bradley and Codi Pogue and ahaving pulled out his concealed and loaded handgun and pointing it towards them – first at Codi and then at Bradley. P.B. offered Bradley a choice – either capitulate and surrender the marijuana or risk dying. The statement therefore contained a threat that Bradley would be killed if he failed to cooperate.
[147] I am unable to accept the defence submission that the question posed by P.B. was a “Hollywood stock phrase” which was unconnected to the shooting. The question was posed by P.B. immediately prior to the shooting and elicited a response from Bradley Pogue which also preceded the shooting. The fact that the question was integrally connected to the shooting is exemplified by P.B.’s statements to each of Matthew Bryant and Amber Craig within hours of the shooting in which he included the line in his descriptions of what had happened.
[148] In my view the fact that P.B. may have been frightened for his safety when Bradley Pogue moved towards him is not inconsistent with an intent to cause bodily harm to Bradley Pogue that he knew was likely to case his death. Fear may have been a motivator for P.B.’s intent and an explanation for his actions in firing two shots at Bradley Pogue, but it does not negate the existence of the requisite intent for murder.
[149] As exemplified in the video, P.B. was well-versed in handling handguns. I am unable to accept the defence submission that the video disclosed P.B. to be immature about handguns and lacking an appreciation of how dangerous they are. P.B.’s question to Bradley Pogue on what he valued more, one pound of marijuana or his life, demonstrates that he fully appreciated that the gun he held in his hand could kill.
[150] Finally, I find that the cases of Jabet and Singh cited by Mr. Stauffer do not assist P.B.
[151] In Jabet the two accused were charged with first-degree murder and were acquitted of that charge and convicted of manslaughter following a judge-alone trial. The victim had been shot in the home of a friend named Balimaka who was a drug dealer who had been in a dispute with both accused over drugs. The two accused had broken into the residence. They were both in the residence when a shot was fired from a shotgun held by one of the accused and killed the victim. The Crown argued that there was evidence of animus between the accuseds and Balimaka sufficient to support an inference of intent to kill Balimaka. The Crown relied upon section 229(b) of the Criminal Code on the basis that the two accused intended to kill Balimaka but accidentally or mistakenly killed the victim and were therefore guilty of murder.
[152] The trial judge noted that there was no evidence that either accused threatened to kill Balimaka. The judge also noted that the accused who held the shotgun made statements shortly after the shooting that there had been a struggle, that the victim tried to grab the gun, that the gun discharged accidentally, and that he did not intend to shoot the victim. It was held that the Crown has not proved that an inference could be made that the two accused intended the reasonable and probable consequences of their actions and that they had the requisite intent for murder.
[153] In contrast to the facts in Jabet P.B. did utter a threat to Bradley Pogue by posing the question of what he valued more a pound of weed or his life. In addition, in his statements to his associates following the shooting P.B. did not claim that the shooting happened accidentally during a struggle over the gun, but rather acknowledged that he had shot Bradley Pogue but sought to justify it claiming that he feared being hurt or killed.
[154] Singh is also of limited assistance to the defence. Following a trial before judge and jury the three accused were acquitted of charges of first-degree murder and convicted of the included offence of manslaughter. The charges arose from a home invasion robbery gone wrong.
[155] The reasons were delivered by D.E. Harris, J. for the purpose of imposing sentence for the manslaughter convictions. In his reasons, Harris J.’s task was to make findings of fact from the evidence that had been proven to support the jury’s verdict for the purpose of sentencing. He found that the jury had accepted a confession that one of the accused made to his girlfriend respecting the circumstances of the fight, including that the stabbing of the victim was accidental. At para. 28 Harris, J. stated:
If a finder of fact acccepted all of [the accused’s] confession to [his girlfriend] - including the accident comment then manslaughter was the correct verdict for [all three accused] … The jury accepted the admission… in its entirety, perhaps surprisingly, even concluding that the killing was an accident and that there was no intention to kill.
(underlining added)
[156] In my view the circumstances in Singh, including in particular that the findings in Harris J.’ reasons were for the purpose of sentencing following a jury verdict, are distinguishable from the case at bar.
Disposition
[157] For the foregoing reasons, I find that the Crown has satisfied its onus of proving that P.B. had at the time of the shooting the intent to cause Bradley Pogue bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not.
[158] I therefore find P.B. guilty of second degree murder in respect of the death of Bradley Pogue.
D.A. Broad, J.
Date: December 22, 2021