In the Court of Appeal of Alberta

Citation: R v Harkes, 2021 ABCA 315

Date: 20210920
Docket: 1901-023 1-A
Registry: Calgary

Between:

Her Majesty the Queen

Respondent

- and -

Mitchell William Harkes

Appellant

Restriction on Publication
Identification Ban See the Criminal Code, section 486.5.
—

By Court Order: (1) Information that could identify the witness shall not be
published, broadcast, or transmitted in any way. (2) No person shall publish,
broadcast, or transmit in any way the contents of the publication ban application or
the evidence, information or submissions at the hearing of the application.
NOTE: Identifying information has been removed from this judgment to comply
with the ban so that it may be published.

Identification Ban See the Youth Criminal JusticeAct, section 110(1).

—

No person shall publish the name of a young person or any other information that
may identify a young person as having been dealt with under the Youth Criminal
Justice Act.
NOTE: Identifying information has been removed from this judgment to comply
with the ban so that it may be published.

Identification Ban See the Youth Criminal Justice Act, section 111(1).
—

No person shall publish the name of or any other information that may identify a
child or young person as having appeared as a witness in connection with an
offence committed or alleged to have been committed by a young person.
NOTE: Identifying information has been removed from this judgment to comply
with the ban so that it may be published.
The Court:
The Honourable Justice Michelle Crighton
The Honourable Justice Ritu Khullar
The Honourable Justice Elizabeth Hughes

Memorandum of Judgment

Appeal from the Conviction by

The Honourable Mr. Justice R. J. Hall
Dated the 23rd day of May, 2019
(Docket: 130706963Q2/Q3)
 Memorandum of Judgment

The Court:

[1] In a retrial before ajudge and jury, the appellant was convicted of the second degree murder
of Brett Wiese. He appeals the conviction and seeks a new trial. His main argument on appeal is
the trial judge erred in his instruction on causation in the death of Mr. Wiese, and the instruction
caused trial unfairness. In addition, the appellant submits the trial judge misdirected the jury on
the use of expert evidence and regarding the intent for murder.

[2] For the reasons that follow, we dismiss the appeal.

Background

[3] On the evening of January 11, 2013, Brett Wiese was a guest at a house party hosted by
the five young men who rented the house: Brett Butler, Alex MacNaull, Brad Pocock, Matthew
Zegers and Brett Zielke. The group had personally invited friends and also posted the event on
Facebook. A group of five young women, including a 17-year-old woman (the young offender,
JR), her sister, and three other friends of the sisters arrived at the party uninvited. Mr. Zegers asked
this group to leave which led to an altercation outside the front of the house where Mr. Butler and
some of the group fell down a hill. The police attended and the women left.

[4] At approximately 3:00 a.m. on January 12, 2013, JR, her sister and several friends and
acquaintances, including the appellant, went to the house to confront the residents about the earlier
altercation. JR’s sister had a knife. On the way to the house, the appellant took the knife from her
and put it in his pocket.

[5] The appellant entered the house with some of the people who accompanied him there. He
first went into Mr. Zielke’s bedroom and demanded “which one of you is Brett?”. Mr. Wiese told
the appellant to leave, but instead the appellant went into the basement where he demanded “who
hit the girl?” and punched two guests. Mr. Zegers and one of the guests, Colton Lewis, tackled the
appellant. The appellant was quickly subdued but not before he bit one of Mr. Zegers’ fingers,
tearing off the majority of his fingernail and leaving Mr. Zegers bleeding. Mr. Zegers told the
appellant to “get out of my house”.

[6] The appellant then went up the stairs from the basement and there was another altercation
on the landing. Mr. Wiese was on the landing holding a male, who had arrived at the house with
the appellant, to keep him from going down to the basement. The appellant then took the knife out
of his pocket and stabbed Mr. Wiese six times in the back, chest, abdomen and face. Mr. Wiese
was able to get away and go up to the kitchen. The appellant then stabbed another man, Mr. Lewis,
in the back several times. Mr. Lewis suffered life threatening injuries, but survived. The appellant
fled from the house.
 Page: 2

[7] After being stabbed by the appellant, Mr. Wiese walked upstairs, turned towards the
kitchen and lifted his shirt. Mr. Wiese was heard to have said “holy shit, I’ve been stabbed... he’s
got a knife.” As Mr. Wiese was walking backwards around the kitchen island, JR stabbed him in
the back, severing his aorta. Mr. Wiese died from massive blood loss.

[8] At his first trial, the appellant was convicted of several offences, including the second
degree murder of Mr. Wiese and the attempted murder of Mr. Lewis. He appealed, alleging errors
in the trial judge’s charge to the jury and in her answer to a juror’s question. This Court allowed
the appeal with respect to the second degree murder conviction only and ordered a new trial on
that charge. All other convictions were affirmed.

The Retrial for Second Degree Murder

[9] The appellant’s retrial for the second degree murder of Mr. Wiese proceeded before a judge
and jury in April and May 2019.

[10] The Crown in its opening to the jury said:

It will be for you to determine on all of the evidence whether Mr. Harkes caused or
contributed significantly to Brett Wiese’s death when he stabbed him those six times
before [JR] stabbed him once. Also for you to determine is whether Mr. Harkes had
the intent for murder when he stabbed Brett Wiese.

[11] As part of an agreed statement of facts, the parties agreed JR inflicted the wound that
penetrated Mr. Wiese’s aorta and the appellant inflicted the six other wounds.

[12] The Crown called 16 witnesses including: Mr. Lewis and others that were involved in the
altercations with the appellant; friends and acquaintances of the appellant and JR; police officers;
an expert qualified to give opinion evidence on DNA; and Dr. Adeagbo, the forensic pathologist
who performed Mr. Wiese’s autopsy and who opined on the cause of death. The defence called
the appellant and Dr. Sauvageau, a forensic pathologist, to provide opinion evidence on cause of
death. JR did not testify.

[13] The Crown’s expert, Dr. Adeagbo, testified that Mr. Wiese died from blood loss caused by
multiple stab wounds. He could not attribute a set amount of blood loss to the stab wound inflicted
by JR. It was his opinion that all the stab wounds would bleed at the time of infliction, would
contribute to blood loss, and contributed to Mr. Wiese’s death. In cross-examination, he
acknowledged that the wounds inflicted by the appellant would not have caused death on their
own. He also agreed that the wound that severed Mr. Wiese’s aorta was life threatening and would
eventually cause blood loss that would kill anyone.

[14] The defence’s expert, Dr. Sauvageau, testified that only the wound inflicted by JR caused
Mr. Wiese’s death. The blood loss from the wounds inflicted by the appellant was insubstantial
and did not contribute to Mr. Wiese’s death.

[15] The appellant testified that he acted in self defence when he stabbed Mr. Wiese.
 Page: 3

[16] The parties’ positions were put to the jury. The defence position was: the appellant acted
in self defence; the stabs wounds he inflicted did not cause Mr. Wiese’s death, rather JR’s stabbing
of Mr. Wiese was the sole cause of death; he was not a joint principal with JR; and he did not have
the requisite intent for murder. The Crown’s position was that the appellant did not act in self
defence and the appellant caused the death of Mr. Wiese in one of three ways: all the stab wounds
contributed to Mr. Wiese’s death; the appellant’s stabbing of Mr. Wiese was a significant
contributing cause of his death because it rendered Mr. Wiese more vulnerable or susceptible to
JR’s attack on Mr. Wiese; and/or the appellant and JR were joint principals in the attack on Mr.
Wiese. The Crown also contended that the appellant had the necessary intent for murder.

[17] There were three key issues for the jury to decide: 1) whether the appellant acted in self
defence; 2) whether the appellant caused Mr. Wiese’s death; and 3) did the appellant have the
requisite intent for murder.

[18] The jury began deliberations on May 22, 2019. The next day, they returned a verdict of
guilty on the charge of second degree murder in the death of Mr. Wiese.

Grounds of Appeal

[191 The appellant submits the trial judge made four errors. First, the trial judge misdirected the
jury regarding the use of the defence’s expert evidence. Second and third combined, the trial judge
erred in his instruction to the jury on causation in the death of Mr. Wiese, which in turn resulted
in trial unfairness by not, at a minimum, permitting the defence a reply argument on causation.
Lastly, the jury instruction obfuscated the need to prove that the appellant personally had the
specific intent for murder.

Standard of Review

[20] Whether the trial judge misdirected the jury is a question of law reviewable on the standard
of correctness. This Court must review the charge as a whole from a functional perspective, asking
whether the jury was properly, not perfectly, equipped to decide the case, keeping in mind that it
is the substance of the charge, not adherence to a set formula, that matters: R v Barton, 2019 SCC
33 at para 54. Alleged errors must be examined in the context of the entire charge and of the trial
as a whole, which includes addresses by counsel, how the parties treated issues at trial and
counsel’s submissions as to the charges: R v Cabrera, 2019 ABCA 184 at para 19, affd 2019 SCC
56.

[21] Trial fairness is also a question of law, reviewed for correctness: R v Lawrence, 2020
ABCA 268 at para 13.

Analysis

[22] The jury verdict tells us that the jury was satisfied the appellant was not acting in self
defence. Thus, the two remaining issues for them to decide were whether the appellant caused the
death of Mr. Wiese, and if so, whether the appellant had the necessary intent for murder. As
observed by the Supreme Court of Canada in R v Maybin, 2012 SCC 24, determining causation is
 Page: 4

more challenging when there is an intervening act between an accused’s actions and the victim’s
death.

1. Jury Instruction on Causation

[23] We will begin by considering the appellant’s second and third grounds of appeal together
as both relate to the issue of causation. It is necessary to set out in detail the history of the jury
instruction to provide context for our decision.

(a) The Pre-Charge Conference Discussions

[24] On May 14, 2019, the trial judge provided counsel with a draft of his jury charge. The
evidence concluded the following day. The trial judge and counsel met on May 17 for a pre-charge
conference.

[25] At that meeting, causation was a central issue. At the outset of its submissions, the Crown
addressed the trial judge on the issue of causation as follows:

CROWN: then going to causation; whether the unlawful act caused Brett Wiese’s
. . .

death. And that’s going to be, in my respectful submission, a large section of the
charge. What causation means on the facts of this case.

And I’ve put a little two bullet points to myself to remember to mention that we
--

are asking for a more expansive charge on Maybin, is what I’ve written down. So
that would be this idea of you can be a contributing cause even though you’re not
the sole cause. And this idea that legal cause is different than medical cause of
death.

So I put a little note to myself to mention that there, and I’ll have more to say about
that after I talk about the general structure that the Crown is suggesting might assist
in clarifying some of these issues.

I’ve also put the name of the case Ball down there. And Ball is a case about joint
enterprise and co-perpetrators.

In my respectful submission, Sir, one of the difficulties in the legal analysis on this
case is understanding whether we are dealing with a principals argument or a parties
argument when we’re talking about Mr. Harkes and [JR] acting together.

THE COURT: It’s very much a difficult situation because you maintain that they
were, and defence will maintain that they weren’t.

CROWN: That’s right. And the question is where does that fit in the analysis. And
in my respectful submission, My Lord, where it fits in the analysis given the focus
on causation is in the joint perpetrators acting as principals, co-principals as
opposed to parties. Because once we start talking about parties, we’re bringing
 Page: 5

intent into the analysis. And when the Crown is speaking of the two of them
bringing about the event of Brett Wieses death, that’s a causation actus reus
argument, before we get to mens rea.

So in other words, in the Crown’s submission, there are routes to causation which
involve Mr. Harkes being a but for cause in the Maybin sense, which is him
inflicting injuries and engaging in conduct which placed Brett Wiese in a position
where he was vulnerable to the attack by [JR], that final stab wound which pierced
his aorta.

And also in that Maybin sense, My Lord, engaging in conduct when he caused an
act to occur, Mr. Wiese moving away from him being distracted by his wounds,
pulling up his shirt, backing towards [JR1 when she stabs him, that was reasonably
foreseeable to him in the circumstances. And that’s the causation analysis, not the
intent analysis.

So where that comes in, My Lord, is in this analysis of whether she is an intervening
act, which severs the chain and makes him not causation in law, significant
contributing cause. [emphasis added]

[26] Defence counsel objected to the Crown’s interpretation of Maybin and that the appellant’s
stabbing of Mr. Wiese could be a contributing cause if it made him more vulnerable to JR’s stab
wound. Defence counsel submitted:

DEFENCE: What I am suggesting is that the term “vulnerable” means something

very different in the context of Maybin than what my friends would have it mean
in this case.

Now, “vulnerable” does not mean, oh, Mr. Wiese was preoccupied with trying to
look at his own wounds or tend to his own wounds so he didn’t see a different attack
coming. That’s not what “vulnerable” means.

In terms of Maybin, what “vulnerable” means --

THE COURT: So “vulnerable” doesn’t mean distracted.

DEFENCE: Exactly.

An individual’s vulnerable if they’re left unconscious and the tides would come in
naturally and take them away. That’s a vulnerability that would be reasonably
foreseeable. Vulnerability is not just some turn [sic] out on its own. It’s connected
to this reasonable foreseeable.
 Page: 6

We don’t it’s very different from what happened in our case. And this is why
--

causation, and we’ll put to the jury, is very fact dependent. It’s not just a matter --

vulnerability is tied to reasonable foreseeability.

THE COURT: But I’m just playing rather than get your friend to stand up. Stab
-- -

- some guy who’s been stabbed six times, you don’t think he’s vulnerable to the next
person coming along and stabbing him when he’s already been stabbed six times?

DEFENCE: Absolutely not. If it’s an independent act, an intervening act, it doesn’t

matter if I’m hurt and some other random person comes up and kills me.

[27] At the conclusion of the pre-charge conference, the case was adjourned over to the next
court day, May 21. By that morning, counsel and the trial judge had reviewed Cabrera, a decision
released by this Court on May 14 and relevant to the issue of causation. Prior to court commencing,
the trial judge e-mailed counsel as follows:

At the present time I have not incorporated any reference to “Vulnerable” in my

redrafted Jury Charge. Therefore, in argument, counsel is NOT free to say I will
instruct the jury as to vulnerability. Nor have I referred to a “but for” test, so the
same applies.

[28] Further submissions were made by counsel and exhibits were marked that morning, which
included the written positions of both the defence and Crown. They were provided to the trial judge
for inclusion in his final jury instruction. Thus, each party had the other’s position (theory) before
closing arguments to the jury were made.

[29] The Crown’s written position on the issue of causation stated as follows:
Mr. Harkes’ actions were a significant contributing cause of Brett Wiese’s death.
First, the 6 stab wounds he inflicted all bled on infliction. The blood loss from these
wounds contributed to total blood loss. Second, in law there is no need for Mr.
Harkes’ acts to be the sole cause of death or the direct or immediate cause of death
for his actions to be a significant contributing cause of Brett Wiese’s death. Mr.
Harkes’ actions made Brett Wiese vulnerable to attack by [JR1 by sending him into
her path, injured and pulling up his shirt, backing towards her when she inflicted
her stab wound before his friend Brett Zielke could get to him. Third, [JR] and Mr.
Harkes were joint participants in the attack on Brett Wiese. As a result, the blow of
one was the blow of both and Mr. Harkes is legally responsible for the wound she
inflicted as well as his own. [emphasis added]

[30] In addition, before counsel commenced their closings to the jury, the trial judge said to the
Crown:

You can argue vulnerability. It’s in your theory.

 Page: 7

I’m going to put your theory and your theory to them just as you’ve written them.
I’m not messing with it. That’s your theory, not my theory. I’m just summarizing the
theory.

So I’m going to put it to them as you’ve mentioned it. But I am not at this time
committed to the issue of of using the vulnerability discussion that you have
--

asked me to put forth...

Shortly thereafter, defence counsel commenced her closing address to the jury.

(b) Closing Addresses of Counsel

[31] The position of the defence in its closing to the jury was that:

1. The appellant acted in self defence when he stabbed Mr. Wiese;

2. The appellant had run out of the house before JR stabbed Mr. Wiese;

3. Dr. Sauvageau’s evidence that JR’s stab wound was the sole cause of Mr. Wiese’s
death should be accepted. The stab wounds inflicted by the appellant did not cause
Mr. Wiese’s death. Dr. Sauvageau’s evidence was that Mr. Wiese would have
survived the stab wounds the appellant inflicted;

4. The stabbing of Mr. Wiese by JR was an intervening act that was not reasonably
foreseeable in that the appellant had no knowledge JR had a knife. Therefore, the
appellant did not cause Mr. Wiese’s death;

5. The appellant did not possess the requisite intent for murder; and

6. The appellant was not acting in concert with JR.

[32] The defence closing did not address the Crown argument that the appellant’s unlawful
action of stabbing Mr. Wiese was a significant contributing cause of his death because it made him
more vulnerable to the stabbing by JR. Rather, the appellant’s position was that JR solely caused
the death of Mr. Wiese.

[33] When defence counsel concluded, the Crown began its closing address. Prior to the court
adjourning for the day, the Crown commenced its submissions on causation. It stated to the jury
that the facts set out three ways the appellant significantly contributed to the death of Mr. Wiese:
1) the six stab wounds inflicted by the appellant and the last stab wound inflicted by JR together
resulted in the total blood loss that caused Mr. Wiese’s death; 2) the appellant’s stabbing of Mr.
Wiese put him into the path of JR and the infliction of her stab wound; 3) the appellant and JR
were involved in a joint attack. The Crown concluded their submissions on the first alternative
prior to adjourning for the day.
 Page: 8

[34] After the jury was excused, the trial judge and counsel returned to the issue of causation
and the jury instructions. At the conclusion of submissions, the trial judge ruled:

I’m satisfied that the meaning of the word vulnerable in the Maybin and Cabrera
case is not applicable to this case. I am of the view that the Crown’s arguments that
Mr. Harkes’s actions rendered Mr. Wiese more vulnerable to the attack by [JR] are
not the types of vulnerability to which the Supreme Court of Canada and the Alberta
Court of Appeal have have referred in the Maybin case and the Cabrera case.
--

The vulnerability there, each of those cases was to grievously injure the victim to
such an extent that the victim had become vulnerable to a second attack. And I do
not see that vulnerability as having been established on the evidence such as to refer
to it.

Therefore, I will be making no reference to vulnerability that has been requested in

written submissions by the Crown in terms of discussing the evidence. [emphasis
added]

[35] The next day, the Crown addressed the jury on its second alternative respecting causation
as follows:

I’m now going to turn to another theory of causation which the Crown says is
available to you on these facts. And that is this: That the actions of Mr. Harkes are
a cause of death, a significant contribution to Mr. Wiese’s death. If Mr. Harkes’s
actions placed Brett Wiese in a situation where he was more available, more
susceptible to the attack by [JR] in a significant way.

For instance, by rendering him less able to defend himself, less able to resist her
further attack; distracted by these wounds that Mr. Harkes had inflicted; already
suffering from them; more exposed to [JR]; more available to her in her path; less
able to be helped by others...

[36] The defence took issue with this submission and asked the trial judge to instruct the jury to
disregard the Crown’s vulnerability/susceptibility argument. The defence also submitted that the
“concern of the defence is that we did not address the jury on this.” The trial judge was “displeased”
with the Crown’s argument and noted that vulnerability was now in front of the jury as a “principle
of law” that he had already said did not apply. The trial judge advised he would add something to
his jury charge.

(c) The Trial Judge ‘s Instruction on Causation

[37] The trial judge instructed the jury as follows on causation:

So that takes me to causation. And that question is: Did Mr. Harkes cause Mr.
Wiese’s death?
 Page: 9

In law, to prove Mr. Harkes’s conduct caused Mr. Wiese’s death, Crown counsel
must prove beyond a reasonable doubt that Mr. Harkes’s conduct contributed
significantly to Mr. Wiese’s death. A person’s conduct may contribute significantly
to another’s death even though the conduct was not the only or the main cause of
the other’s death. If you are satisfied beyond a reasonable doubt that Mr. Harkes’s
conduct contributed significantly to Mr. Wiese’s death, it does not matter that
proper or timely medical treatment might have saved Mr. Wiese’s life. You will
understand for this that the legal test for causation is significant contribution. You
must realize that causation in law is not the same as the medical question of what
caused the death. For instance, where an autopsy report reads that Mr. Wiese died
as a result of exsanguination, which is blood loss, and a collapsed left lung from
multiple stab wounds, this is describing the medical cause of death. You must
decide here whether the stab wounds that Mr. Harkes delivered to Mr. Wiese
constituted a significant contribution to his death. A significant contribution need
not be the main cause of death. But a minimal contribution is not a significant
contribution.

It is an admitted fact that Mr. Harkes inflicted all of the stab wounds shown on the
body of Mr. Wiese in the photographic booklet other than the stab wound that is
admitted to have been inflicted by [JR]. That is the stab wound in Exhibit 11,
photographs 3 and 4. So your question is did Mr. Harkes’s actions, including the six
stab wounds he inflicted, contribute significantly to Mr. Wiese’s death?

You have to consider all of the evidence. You have to consider the evidence of both
Dr. Adeagbo and Dr. Sauvageau. But do not limit your consideration only to the
opinion of the pathologist. Take into account all the testimony of any witnesses
who described the events that took place around the times Mr. Wiese was hurt and
died.

A second route to determining whether Mr. Harkes caused Mr. Wiese’s death is to
decide whether the Crown has proven beyond a reasonable doubt that Mr. Harkes
and {JR] acted together to cause Mr. Wiese’s death. Were they working in concert
jointly in stabbing Mr. Wiese? If you find the Crown has proven beyond a
reasonable doubt that they were so acting, that is the second way the Crown may
prove causation.

In that regard, I’ll talk about some of the evidence.

So that is some of the evidence on whether the parties jointly caused -- sorry, on
whether Mr. Harkes and [JR] jointly caused the death of Mr. Wiese.

The Crown needs to prove causation either acting alone or jointly. Either of the
ways which I have described will do.

The Crown has told you that Mr. Harkes will have significantly contributed to Mr.
Wiese’s death if what he has done has rendered Mr. Wiese significantly more
 Page: 10

susceptible to [JR’s] attack. Susceptibility is to be considered as a continuum. If,

for example, Mr. Harkes rendered Mr. Wiese unconscious such that he was
defenceless to [JR’s] attack, that would definitely be significant susceptibility.

At the other end of the spectrum, if Mr. Harkes’s actions simply distracted Mr.
Wiese, that does not render Mr. Wiese significantly more susceptible to [JR’s]
attack. For example if Mr. Harkes had kicked Mr. Wiese in the shin, and while Mr.
Wiese was examining his leg [JR] stabbed him in the back, it could not be said that
Mr. Harkes caused Mr. Wieses death.

It is up to you to decide whether Mr. Harkes has made Mr. Wiese significantly more
susceptible to [JR’s] attack when you consider whether Mr. Harkes has significantly
contributed to Mr. Wiese’s death.

The overall test for causation remains significant contribution.

[38] With that background to the jury instruction on causation, our analysis begins with the
appellant’s submission that the trial judge erred in law by instructing the jury that the appellant
rendered Mr. Wiese more vulnerable to the stabbing by JR, because there was no air of reality to
the Crown position.

[39] The phrase “air of reality” is most commonly used in the context of assessing whether there
is evidence that provides a basis for a defence to be put before a jury. See for example Brisson v
The Queen, [1982] 2 SCR 227, 1982 CanLil 196 (SCC); R v Bulmer, [1987] 1 SCR 782, 1987
CanLil 56 (SCC); R v Osolin, [1993] 4 SCR 595, 1993 CanLil 54 (SCC). This phrase speaks to
the evidential burden on an accused. In this case, we are not dealing with the evidential burden on
the accused. Rather, the issue is the test for causation and whether there was any evidence upon
which a properly instructed jury could find that the appellant had rendered Mr. Wiese vulnerable
such that the appellant significantly contributed to the death of Mr. Wiese. This was one of three
Crown positions on causation. It is important to remember the jury was not required to be
unanimous as to which position it accepted as long as the jury was unanimous that the Crown had
established causation beyond a reasonable doubt: see R v Thatcher, [1987] 1 SCR 652, 1987
CanLil 53(SCC).

(d) General Principles on Causation

[40] The standard or test for causation for a homicide is “a contributing cause of death, outside
the de minimis range”: R v Smithers, [1978] 1 SCR 506 at 519, 1977 CanLil 7 (SCC). The Smithers
test was confirmed by the Supreme Court of Canada in R v Nette, 2001 SCC 78 at para 71, where
the language of the test was expressed as “significant contributing cause”. As further noted by the
Supreme Court of Canada in Maybin at para 1:

In cases involving multiple causes of death or intervening causes between an

accused’s action and the victim’s death [a]n accused’s unlawful actions need not
...

be the only cause of death, or even the direct cause of death; the court must
determine if the accused’s actions are a significant contributing cause of death.
 Page: H

[411 The majority in Nette also held at para 72:

trial judges have a discretion in choosing the terminology they wish to use to
explain the standard. Causation issues are case-specific and fact-driven. For that
reason, it is important to afford a trial judge with the flexibility to put issues of
causation to the jury in an intelligible fashion that is relevant to the circumstances
of the case, including whether or not there are multiple accused persons or parties.

See also Maybin at para 17.

[42] There are two components to causation in a homicide, legal and factual: Nette at paras 44-
46. These components were confirmed in Maybin at para 15.

[43] Factual causation is concerned with “... how the victim came to his or her death, in a
medical, mechanical or physical sense, and with the contribution of the accused to that result”:
Nette at para 44. Factual causation is not limited to the direct and immediate cause, nor is it limited
to the most significant cause: Maybin at para 20.

[44] Legal causation is concerned with whether the accused should be held criminally
responsible for the consequences of their actions. The majority in Nette explained at para 45:

Legal causation, which is also referred to as imputable causation, is concerned with

the question of whether the accused person should be held responsible in law for
the death that occurred. It is informed by legal considerations such as the wording
of the section creating the offence and principles of interpretation. These legal
considerations, in turn, reflect fundamental principles of criminal justice such as
the principle that the morally innocent should not be punished: see Re B. C. Motor
Vehicle Act, [1985] 2 S.C.R. 486, at p. 513; R. v. Vaillancourt, [1987] 2 S.C.R. 636,
at p. 652-53; R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 336; R. v. Creighton,
[1993] 3 S.C.R. 3, at p. 17; Cribbin, supra, at p. 568. In determining whether legal
causation is established, the inquiry is directed at the question of whether the
accused person should be held criminally responsible for the consequences that
occurred. The nature of the inquiry at the stage of determining legal causation is
expressed by G. Williams as follows in his Textbook of Criminal Law (2nd ed.
1983), at pp. 38 1-82, quoted in Cribbin, at p. 568:

When one has settled the question of but-for causation, the further
test to be applied to the but-for cause in order to qualify it for legal
recognition is not a test of causation but a moral reaction. The
question is whether the result can fairly be said to be imputable to
the defendant... If the term “cause” must be used, it can best be
.

distinguished in this meaning as the “imputable” or “responsible” or

“blamable” cause, to indicate the value-judgment involved. The
word “imputable” is here chosen as best representing the idea.
Whereas the but-for cause can generally be demonstrated
scientifically, no experiment can be devised to show that one of a
 Page: 12

number of concurring but-for causes is more substantial or

important than another, or that one person who is involved in the
causal chain is more blameworthy than another.

[45] However, the jury is not to engage in a two-part analysis. The trial judge must seek to
“...convey the requisite degree of factual and legal causation that must be found before the accused
can be held criminally responsible for the victim’s death”: Nette at para 46. This can be done by
asking if the accused’s actions significantly contributed to the victim’s death: R v Haas, 2016
MBCA 42 at para 49 citing Nette at para 46, leave to appeal to SCC refused [2016] SCCA No 306.

[46] In Maybin, the Supreme Court of Canada utilized the word “vulnerable” in its causation
analysis. In that case, the two Maybin brothers (the first attackers) repeatedly punched the victim
in the face and head. One of the brothers struck a blow that rendered the victim unconscious. A
bouncer (the second attacker) who arrived on the scene within seconds of this blow, struck the
victim in the head. The medical evidence at the manslaughter trial was inconclusive respecting
which blows caused death, and as a result, the trial judge acquitted the two brothers and the
bouncer. The majority of the British Columbia Court of Appeal ordered a new trial for the Maybin
brothers, finding that factual causation had been established.

[47] On appeal to the Supreme Court of Canada, the court agreed it was open to the trial judge
to find that the Maybin brothers’ assaults were a significant contributing cause of death and
dismissed the appeal.

[48] In examining factual causation, the court said at paras 20 to 22:

On the other hand, the appellants’ unlawful acts not only seriously injured the
victim, but also rendered him unconscious on the pool table where he was
subsequently assaulted by the bouncer. Given these facts, the Court of Appeal
concluded that even if the appellants’ actions were not the direct and immediate
cause of the victim’s death, “but for” their actions, the victim would not have died.
I agree. As Smithers and Nette made clear, factual causation is not limited to the
direct and immediate cause, nor is it limited to the most significant cause. The
Maybin brothers’ assault was either the direct medical cause of death or it rendered
the victim vulnerable to the bouncer’s assault.

For these reasons, I agree with the Court of Appeal that the trial judge erred in the
factual causation inquiry in this case. He stopped with his assessment of the medical
cause of death and did not consider the contribution of the appellants to that result
by asking whether the deceased would have died “but for” the actions of the
appellants. As Arbour J. noted in Nette (para. 77):

The difficulty in establishing a single, conclusive medical cause of

death does not lead to the legal conclusion that there were multiple
operative causes of death. In a homicide trial, the question is not
what caused the death or who caused the death of the victim but
rather did the accused cause the victim’s death. The fact that other
 Page: 13

persons or factors may have contributed to the result may or may

not be legally significant in the trial of the one accused charged with
the offence.

The fact that the bouncer’s act may have been a novus actus interveniens, or an
intervening act, is part of the analysis of whether legal causation has been
established and whether the appellants should be held legally accountable for the
death. [emphasis added]

[49] There is not a substantial body of case law on the meaning of “vulnerable”.

[50] In R v Mitchell, 2015 ABPC 99, the accused was found to have punched the victim in the
head, causing him to fall to the ground. The trial judge found the victim was “dazed and in a
reduced state of consciousness”. In analyzing factual causation, the trial judge found that this
assault was “either the direct medical cause of the injuries or it rendered the Complainant
vulnerable to the kicks delivered by other members of the Accused’s group”: Mitchell at para 106.

[51] In Cabrera, the accused participated in a group assault. The victim was stabbed in the first
wave of the attack. Good Sarnaritans tried, unsuccessfully, to help the victim and protect him from
the second wave of violence inflicted by a group which included the accused Cabrera and Shlah.
Witnesses described Cabrera’s actions as “stomping” on the victim’s head and giving a “soccer
like” kick to his head. The medical evidence disclosed that not only was the victim stabbed four
times, but multiple blunt force injuries were inflicted. There were at least 11 injuries to both the
right and left side of his head as well as on other parts of his body. The facial injuries included the
loss of four upper frontal incisors as a result of the forceful kicks to the head. The victim was
beaten so badly that he was unrecognizable. Along with others, Cabrera and Shlah were charged
with the second degree murder of the victim. Cabrera and Shlah were convicted of murder and
appealed their convictions.

[52] A central issue in Cabrera’s appeal was causation. He argued that his own actions, as part
of the second group of second attackers, could not be said to have caused the victim’s death
because he did not cause any of the fatal stab wounds and that this was not a “joint beating case”,
rather the stabbing caused the victim’s death. This Court rejected Cabrera’s argument, finding that
on the evidence, the jury could have found Cabrera’s assault to be a factual cause of death over
and above the stabbing. In setting out the test for causation, this Court said at para 65:

The overall test for causation is that of a “significant contributing cause”: R vNette,
2001 SCC 78 at para 71, [2001] 3 SCR 488 [Nette]. While this is often the phrase
used, the law is clear that a contributing cause of death beyond the de minimis range
will do: R vSmithers, [1978] 1 SCR 506 at 519 [Smithers]. It is not necessary that
the accused’s actions be the direct or more significant cause. It may be enough if
the accused’s actions render the victim vulnerable to the assault of others and death
results: R v Maybin, 2012 SCC 24 at para 20, [2012] 2 SCR 30 [Maybiii].
[emphasis added]

See also para 82.

 Page: 14

[53] In addition, Cabrera argued his conviction for second degree murder was unreasonable. In
dismissing this argument, this Court said at para 109, again considering the issue of vulnerability:

on the evidence here, Cabrera’s participation in the brutal group attack on

Strasser-Hird took place when Strasser-Hird was in extreme distress. At the time of
the second wave of violence, Strasser-Hird, having already sustained grievous
injuries, was defenceless. To put this in perspective, he was completely exposed,
vulnerable and unable to defend himself whether by moving his head to escape the
substantial kicks inflicted on him or by using his hands to try to deflect these blows.
When Cabrera approached Strasser-Hird in the alley, he would have seen Strasser
Hird’s physical vulnerability. And if the jeopardy Strasser-Hird was in was not
immediately apparent to Cabrera, Ryan made that peril clear in her warnings,
warnings this jury could properly infer that Cabrera heard. Therefore, on this
record, it was open to this jury to conclude that in all the circumstances, Cabrera
was aware of Strasser-Hird’s physical vulnerability and that Strasser-Hird would be
taking the full force of further kicks to his head and body without resistance. And
yet Cabrera persisted in participating in the vicious attack on Strasser-Hird. It is in
this context Strasser-Hird being down and defenceless that the jury properly
- -

assessed Cabrera’s intention when he attacked Strasser-Hird.

[54] While we appreciate the facts in this case are more consistent with those in Maybin, the
analysis in Cabrera as it relates to vulnerability still applies.

[55] R v Williams, 2020 MBCA 72 is another decision where vulnerability was an issue. The
appellant was convicted of manslaughter by the unlawful act of failing to provide the necessaries
of life to his 21-month-old daughter. The child’s mother had pleaded guilty to second-degree
murder. It was agreed at the appellant’s trial that the mother had inflicted the fatal injury in the
family residence when the appellant was not present. It was also agreed that in the year leading to
the child’s death the mother had repeatedly beaten the child, causing injuries.

[56] The pathologist who performed the child’s autopsy testified that the cause of death was
blunt force injury to the child’s abdomen which resulted in injuries to her internal organs and
significant blood loss. The blood loss was the mechanism of her death. The pathologist further
testified that the child’s “undernutrition and her multiple previous injuries made her more
vulnerable to any additional trauma.” As a result, she was of the opinion that malnutrition and the
repeated injuries were significant contributing factors to the child’s death. While she
acknowledged it was possible the child may have died regardless of the malnutrition and previous
injuries, she also testified at para 11:

Well, she lost 30 to 40 per cent of her blood volume [from the fatal assault], which
is significant, but it it’s not necessarily going to lead to death. It it may well
-- --

have, without medical care, it may well have in particular. It’s a significant amount
of blood blood loss. She probably would have been symptomatic, whether it
--

would have led to death on its own, I can’t say, but I think she was rendered more
vulnerable to acute blood loss by being already anemic.
 Page: 15

[57] On appeal, the appellant argued the trial judge erred in instructing the jury, including on
causation. The appellant contended that because the pathologist testified that it was possible the
child may have died even if she was not previously malnourished and injured, the trial judge should
have instructed the jury that his actions could not be a significant contributing cause of the child’s
death.

[581 The Manitoba Court of Appeal rejected this submission and held at para 26:

Dr. Phillips did testify that the child might have died from the mother’s final assault
even if she had not been anemic, especially if she did not receive medical care.
Nonetheless, she was of the view that the child was more vulnerable to the fatal
assault because of her anemia and, as a result, her malnourishment and repeated
injuries were significant contributing factors to her death. There can be many
contributing causes of death. As stated in R v Maybin, 2012 SCC 24, “an unlawful
act may remain a legal cause of a person’s death even if the unlawful act, by itself,
would not have caused that person’s death, provided it contributed beyond de
minimis to that death” (at para 14). And, even where an accused’s actions accelerate
or hasten the death of another, those actions will be a significant contributing cause
of the death (see R v ChieJ 2019 MBCA 59 at paras 25-26). [emphasis added]

[59] R v CW (2006), 209 OAC 1 (CA), 2006 CanLil 11225 (ON CA), leave to appeal to SCC
refused, [2006] SCCA No 409 is another decision that considered the issue of vulnerability in the
context of causation, albeit pre-Maybin.

[60] The victim, AR, died as a result of ingesting a combination of drugs, including Percocet,
speed and morphine (containing together a lethal mixture of morphine, oxycodone and
amphetamines). CW was convicted of manslaughter and appealed his conviction. He argued that
the trial judge failed to consider and give effect to an “intervening act” defence. There were periods
of time when the victim was helping herself to the drugs in CW’s absence and this destroyed the
causation link between death and the unlawful act of trafficking in drugs. In relying on Nette at
paras 45 and 77, CW contended that the cause of death could not fairly be “imputable” to him
because the victim helped herself to the drugs and this severed the link that ties him to the
prohibited result.

[61] In short reasons, the Ontario Court of Appeal held at paras 6 to 8:

The trial judge found that the appellant made the drugs available in large quantities
to his guests, including A.R., and that he facilitated, encouraged, welcomed and
promoted their use; he showed A.R. and her friends how a more intoxicating effect
could be obtained by crushing the pills and removing the time-release coating, and
when the girls said they were not feeling “high”, he supplied them with more drugs
with the added potency factor of peeling and crushing. The trial judge specifically
found that “the accused invited A.R. to take dangerous drugs and facilitated her
ingesting them in a form most lethal, thus placing her in a confused and vulnerable
state and then, whether she continued consumption on her own or with S.H., took
 Page: 16

no steps to shut her down.” He found that the appellant’s actions contributed
substantially to A.R.’s death.

There was ample evidence to support these findings and they fully support the
finding of guilt on the charge of manslaughter. The drugs ingested by A.R. all came
from the appellant’s supply as the Crown notes, he had a virtual pharmacopoeia
—

of drugs on his kitchen counter and were taken with his permission and, indeed,
—

encouragement, even if he happened not to be present on some occasions when the

drugs were consumed. The evidence is that the appellant was present on numerous
other occasions when A.R. was consuming the drugs. Accordingly, the trial judge’s
finding of manslaughter arising from the unlawful act of trafficking in drugs was
perfectly justified in the circumstances.

Similarly, we agree with the trial judge’s finding that the appellant’s conduct
constituted wanton and reckless disregard for the life or safety of A.R. and
ultimately caused her death. The appellant knew of the drugs she had been
consuming and that she was a relatively young girl. As noted above he invited and
encouraged her to take these lethal forms of drugs, took no steps to restrain her
...

at any time, and ultimately ignored warnings from his friends that an ambulance
should be called. Accordingly, the manslaughter conviction based upon criminal
negligence is well founded, too. [emphasis added]

(e) Application to the Appellant ‘s Case

[62] The overall test for causation is that of “significant contributing cause”. Vulnerability is
not a standalone principle of law; rather, it has been relied upon to assist in explaining what
“significant contributing cause” means. As this Court held in Cabrera at para 65, citing Maybin at
para 20, to meet the test for causation “[i]t is not necessary that the accused’s actions be the direct
or more significant cause. It may be enough if the accused’s actions render the victim vulnerable
to the assault of others and death results.” Therefore, in this context vulnerability provides another
way of describing the issue of causation to a jury.

[63] The decisions referred to earlier in these reasons which considered the issue of vulnerability
suggest that vulnerable has its ordinary meaning, that being “open to attack or damage” and
synonymous with “susceptible” or “exposed”: Merriam-Webster Dictionary (online). While the
trial judge initially stated he would not instruct the jury as to vulnerability vis-à-vis causation, he
ultimately did. The appellant does not suggest the trial judge erred in the content of his instruction
on the meaning of vulnerability, and we find the manner in which the trial judge described
vulnerability to the jury made sense on the facts of this case.

[64] Thus, the last question is whether there was any evidence before the jury from which they
could find that the appellant had rendered Mr. Wiese vulnerable such that the appellant
significantly contributed to the death of Mr. Wiese. The evidence of the witnesses who testified to
Mr. Wiese’s actions, words and demeanour after he was stabbed six times by the appellant
provided the necessary evidence for the jury to consider the issue of vulnerability. Therefore, we
see no merit to this argument.
 Page: 17

[651 The appellant’s third ground of appeal, which is related to the above analysis, involves
trial fairness. The appellant argues that the trial judge’s instruction on vulnerability rendered the
trial unfair by not, at a minimum, permitting the defence to reply to the Crown’s closing
submissions on causation vis-à-vis vulnerability/susceptibility.

[66] We do not agree trial fairness was compromised.

[671 First, at no time did the defence seek a reply. They asked the trial judge to instruct the jury
to ignore the Crown’s submissions. More importantly, the Crown’s arguments could not have
taken the defence by surprise.

[68] Causation was always a key issue in this case. The Crown clearly set out its legal and
factual position respecting vulnerability/susceptibility at the pre-charge conference. The defence
disagreed with that legal analysis. On the next court date, further submissions were made on this
issue. In addition, the defence had in writing the Crown’s position, which spoke to the appellant’s
actions being a significant contributing cause of Mr. Wiese’s death by making him more vulnerable
to the stabbing by JR. Lastly, the trial judge advised the Crown that it could make its vulnerability
argument. Only after this point did the defence make its closing argument to the jury. The defence
knew the Crown’s position but chose not to address it in their closing. Rather, the defence focused
on its theory of the case, which had a very different interpretation of the evidence.

[69] The record demonstrates there were two prongs to the defence’s case. First and foremost,
that the appellant acted in self defence. Had that defence raised a reasonable doubt in the minds of
the jury, the appellant would have been acquitted. The second prong of the defence rested on Dr.
Sauvageau’s evidence that the six stab wounds inflicted by the appellant did not cause the death
of Mr. Wiese. In other words, the appellant argued that the stab wounds were not a significant
contributing cause of death, thereby implicitly addressing the vulnerability argument. The
appellant made a tactical decision not to address the issue of vulnerability directly in their closing.
This is not an issue of trial unfairness.

[70] In oral argument at this Court, the appellant submitted trial fairness was also compromised
because before closing arguments started the trial judge said that he would not instruct on the
vulnerability issue, but subsequently changed his mind. R v Pickton, 2010 SCC 32 at para 27
answers that complaint on the facts of this case:

• .Discussions between counsel and the trial judge about the content of the charge
can provide invaluable assistance in crafting correct jury instructions and, as such,
should be encouraged. However, it is the trial judge’s role to instruct the jury on all
relevant questions of law that arise on the evidence. In some cases, these
instructions will not accord with the position advanced by counsel for the Crown
or the defence.

[71] Therefore, we see no merit to the appellant’s two grounds of appeal regarding the jury
instruction on causation and trial fairness.
 Page: 18

2. Jury Instruction on the Use of the Defence’s Expert Evidence

[72] The appellant submits the trial judge misdirected the jury regarding the use of the defence
expert evidence in several ways.

[73] First, the appellant submits the trial judge erred in that he did not link the evidence of the
two pathologists to other issues, such as assessing the credibility of the appellant’s evidence that
he acted in self defence and whether the Crown established the appellant had the requisite intent
to kill. The Crown says there is no merit to this submission. First, the defence asked no questions
of the pathologists on these issues. Second, the defence theory or position did not link the evidence
to these issues nor did the appellant suggest to the jury the evidence was relevant to the issues.
Third, the appellant has not explained on appeal how the evidence was relevant to the issues.

[74] We agree with the Crown that this first argument has no merit. Indeed, Dr. Sauvageau
testified in direct “[w]e don’t evaluate self defence or things like that...”.

[75] The appellant also submits that the presumption of innocence and the standard of proof
beyond a reasonable doubt required the trial judge to instruct the jury that Dr. Sauvageau’s
evidence may raise a reasonable doubt as to the essential element of causation, even if the jurors
did not fully accept her evidence and opinion. The appellant says the trial judge failed to do this
when he stated in his jury instruction: “If you accept the evidence and opinion of Dr. Sauvageau,
you are entitled to use it when you deal with the legal question of the causation of Mr. Wiese’s
death.”

[76] The appellant further argues that the trial judge failed to address the possibility that the jury
could accept neither expert pathologist’s evidence entirely, and the conflicting expert medical
evidence could leave them unsure about whether the wounds caused by the appellant were a
significant contributing cause of Mr. Wiese’s death. Given the importance of causation at the retrial
and the conflicting expert evidence, this error was fatal and a new trial is required.

[77] The Crown’s response to this argument is there is no realistic possibility the trial judge
misled the jury into believing they had to accept Dr. Sauvageau’s evidence in its entirety before
they could consider it. The trial judge told the jury that how much of Dr. Sauvageau’s opinion they
accepted was up to them, the burden of proof was always on the prosecution, they had to resolve
any reasonable doubt in favour of the appellant (including any doubt on causation), and proof
beyond a reasonable doubt applied to the whole case not to particular pieces of evidence or
witnesses.

[78] While the pathologists’ evidence was relevant to the issue of causation, the jury did not
have to “evaluate competing causes or choose which is dominant” provided they were satisfied
...

that the appellant’s acts could be said to have significantly contributed to the death of Mr. Wiese:
see Nette at para 72 citing R v Cheshire, [1991] 3 All ER 670 (CA) at 677.

[79] As observed in R v Chief 2019 MBCA 59 at paras 16 to 17 respecting expert evidence and
causation:
 Page: 19

Causation is to be decided on an assessment of all relevant evidence; the trier of

fact is not constricted by the expert evidence so long as the causation finding is
reasonably available on the evidence and not based on speculation (see R v
Fimentel, 2000 MBCA 35 at paras 63-67, leave to appeal to SCC refused, 2000
CarswellMan 575).

The judge was not limited by the understandable reticence of the two medical
experts to speak in “absolute terms” as to what degree each violent act of T and the
accused played in causing death (Smithers v The Queen, [1978] 1 SCR 506 at 515,
518). There may be a number of contributing causes of death (see Maybin at para
14). Additionally, factual causation is not limited to the direct and immediate cause
or the most significant cause (see Maybin at para 20). As Watt JA put it in R v
Manasseri, 2016 ONCA 703, leave to appeal to SCC refused, 37322 (13 April
2017) (at para 193): “Expert medical opinion evidence is admissible to establish
factual cause. But the work of the expert is purely diagnostic. We do not require
medical witnesses, however eminent, to distinguish between causes and conditions,
or to rank causes as to their relative significance of contribution to death”.

[80] On our review of the charge as a whole, and with respect to expert evidence specifically,
we note the trial judge told the jury:

As judges of the fact, you will examine the evidence, assess the credibility of
witnesses, decide what weight you will give to the evidence, and decide what facts
have been proven.

[81] The jury was instructed on the burden of proof and reasonable doubt. They were also
instructed they may believe everything a witness said, none of what a witness said, or part of what
a witness said. The jury was later told that the testimony of experts was like the testimony of any
other witness, and they may believe or rely on the opinion as much or as little as they saw fit.

[82] In addressing the expert’s evidence on the issue of causation specifically, the trial judge
told the jury that the Crown must prove beyond a reasonable doubt that the appellant’s conduct
contributed significantly to Mr. Wiese’s death. The jury was also instructed on this issue that:

You have to consider the evidence of both Dr. Adeagbo and Dr. Sauvageau. But do
not limit your consideration only to the opinion of the pathologist. Take into
account all the testimony of any witnesses who described the events that took place
around the times Mr. Wiese was hurt and died. You should consider the evidence
you heard from various witnesses about what they saw of Mr. Wiese’s condition
after he was stabbed, any evidence you heard about any blood loss caused by the
stab wounds by Mr. Harkes and before the stabbing by [JR]. You must then decide,
based on the evidence that was presented, or the lack of evidence, whether you are
sure that Mr. Harkes’s actions alone significantly contributed to Mr. Wiese’s death.
Use your good common sense.

[83] The trial judge then summarized the evidence of Dr. Adeagbo and the evidence of Dr.
Sauvageau. The jury was told to use their collective common sense and judgment in assessing this
 Page:20

evidence and deciding whether the Crown had established the appellant significantly contributed
to the death of Mr. Wiese. Lastly, he reminded the jury again that they had to consider all the
evidence.

[84] We are satisfied that when the charge as a whole is reviewed from a functional perspective,
the jury was properly equipped on how to use the defence's expert evidence. Thus, we do not
accede to this ground of appeal.

3. Jury Instruction on Intent/or Murder

[85] The appellant's final ground of appeal is that the trial judge misdirected the jury on intent
for murder, and mixed the concepts of co-principal actus reus and specific intent for murder.

[86] The Crown submits the trial judge correctly instructed the jury on intent and a review of
the jury instruction reveals there is no risk the jury did not understand that to convict the appellant,
whether acting alone or in a joint attack, they had to find he had the intent for second degree
murder. The Crown also observes that at trial the appellant raised no complaint on this issue and
the jury asked no questions to suggest they were confused.

[87] The trial judge instructed the jury on the necessary intent for murder - either that the
appellant intended to kill Mr. Wiese or that he meant to cause Mr. Wiese bodily harm that he knew
was likely to kill him and was reckless whether Mr. Wiese died. He also instructed them that the
Crown had to prove the requisite intent beyond a reasonable doubt, whether the appellant was a
joint principal or as a party who caused the death of Mr. Wiese. Again, we are satisfied that when
this part of the charge is reviewed from a functional perspective, the jury was properly equipped
to decide this issue. Thus, we find this ground of appeal has no merit.

Conclusion

[88] We dismiss the appeal.

Appeal heard on January 13, 2021

Memorandum filed at Calgary,
Alberta this 20th day of September,
2021
Authorized� Crighton J.A.

FILED Authoriz� Khullar J.A.

20 Sep 2021

JN Hughes J.A.
 Page: 21

Appearances:

R.S. Dhillon
for the Respondent

M.G. Bates
for the Appellant