COURT OF QUEEN S BENCH OF MANITOBA

Date: 20171206 Docket: CR 15-01-35066 (Winnipeg Centre) Indexed as: R. v. Ajak Cited as: 2017 MBQB 202 COURT OF QUEEN S BENCH OF MANITOBA BETWEEN: ) APPEARANCES: ) HER MAJESTY THE QUEEN ) Libby Standil and ) Mary Goska - and - ) for the Crown ) AKECH DUT AJAK, ) Evan J. Roitenberg and ) Laura C. Robinson (applicant) accused ) for the accused ) ) Judgment delivered: ) December 6, 2017 TOEWS J. [1] Akech Dut Ajak stands charged with first degree murder, conspiracy to commit murder, and participating in the activities of a criminal organization for the purpose of enhancing the ability of the Mad Cow street gang to facilitate the offence of murder. Admitted Facts [2] The facts admitted by the parties include the fact that on February 15, 2013, William Edward Moar was shot and killed by Dylan James Chatkana at Johnny G s restaurant at 172 Main Street in Winnipeg Manitoba. On that date, Mr. Chatkana entered the restaurant and fired two shots at Mr. Moar, the first striking liquor bottles

Page: 2 approximately a foot away from a waitress while the second wounded Mr. Moar in his neck, killing him. [3] A video timeline was prepared by a forensic analyst with the Winnipeg Police Service. The video timeline is a compilation of pertinent surveillance footage seized by the police in this case. It was admitted as evidence by consent. This video depicts occurrences on February 15, 2013, both inside and outside of the Opera Night Club at 441 Main Street in Winnipeg, Manitoba, as well as occurrences inside and outside of Johnny G s restaurant on the same date. [4] The video timeline shows Mr. Moar leaving the Opera Night Club and getting into a taxi with two female companions. The taxi drove south on Main Street to Johnny G s restaurant. The video timeline also shows Mr. Chatkana enter Johnny G s and shoot Mr. Moar. At no time is Mr. Ajak identified on the video. [5] The historical conflict between the Mad Cow street gang and the B-Side street gang of which Mr. Moar was a member, is set out in a report prepared by a Winnipeg City police officer and was filed as an exhibit by consent in these proceedings. The Position of the Crown [6] The position of the Crown is that Mr. Ajak acted with other members or associates of the Mad Cow street gang in planning and then committing the murder of Mr. Moar, a member of a rival street gang. [7] Aside from the admitted and uncontested facts presented at the trial, there are a number of key pieces of evidence which the Crown relies upon in furtherance of its position. This evidence includes a vehicle which Mr. Ajak borrowed from Darrell

Page: 3 Ballantyne, a person to whom he had sold drugs. They also include a cell phone which Mr. Ajak used to contact Mr. Ballantyne and which was seized when Mr. Ajak was arrested in the vehicle he had borrowed from Mr. Ballantyne. [8] The Crown argues on the basis of the video footage, it was the vehicle that Mr. Ajak borrowed from Mr. Ballantyne which followed the taxi containing Mr. Moar to Johnny G s. It states that shortly after 2:00 a.m., Mr. Chatkana exited that vehicle in the Johnny G s parking lot and went inside the restaurant to shoot Mr. Moar. Thereafter he left the vicinity of the restaurant in the same vehicle. [9] The Crown relies on the evidence of a representative of the cell phone service provider to show that the cell phone used by Mr. Ajak to contact Mr. Ballantyne when he made arrangements to borrow the vehicle, was also used just prior to the shooting of Mr. Moar. It states that by virtue of telephone records and the cell phone towers which received signals from that phone, that Mr. Ajak was in the vicinity of the Opera Night Club and Johnny G s restaurant and therefore must have been inside the vehicle at the time of and in the aftermath of the shooting of Mr. Moar. [10] There are a number of civilian witnesses who were called by the Crown in support of its position. The first of these was Mr. Ballantyne, the owner of the van, which the Crown states was used in the course of the shooting and which Mr. Ajak borrowed from Mr. Ballantyne sometime after 11:00 p.m. on the evening of February 14, 2013, and in which Mr. Ajak was arrested at approximately 4:00 a.m. the next day after he left a rooming house residence at 548 Sherbrook Street.

Page: 4 [11] In addition to Mr. Ballantyne, the Crown called a number of other witnesses who gave evidence concerning the events in the hours leading up to a confrontation between members of the Mad Cow street gang and members of the B-Side street gang at the Opera Night Club at approximately 1:18 a.m. on February 15, 2013. This included evidence concerning who was present at the residence at 548 Sherbrook Street prior to the confrontation at the Opera Night Club and the production of a firearm during the course of the evening at that residence. The Position of the Defence [12] The defence did not call any evidence, but argues that the Crown has not proven its case in respect of the three counts. In brief, it states that there is no evidence that places Mr. Ajak in the van at any time relevant to the shooting of Mr. Moar. Furthermore, it argues that the Crown has not demonstrated that the cell phone which Mr. Ajak used to contact Mr. Ballantyne in order to borrow the van on February 14, 2013, and which was seized at the time of his arrest, was in his possession during the crucial time period before and after the shooting of Mr. Moar. It argues that there is no evidence which would allow the court to conclude on the basis of direct or circumstantial evidence, that Mr. Ajak was in the van which was used to bring Mr. Chatkana to the location where Mr. Moar was shot and in which Mr. Chatkana left after the shooting. Analysis [13] In my opinion, there is no direct, reliable evidence that ties Mr. Ajak to the murder of Mr. Moar. While I admitted into evidence at trial the testimony that Mr. Terryl Izzard

Page: 5 gave at the preliminary hearing, I am not satisfied that it would be safe to rely on his evidence, including his evidence that Mr. Ajak told him he was driving the van at the time of the shooting. There is no substantive corroboration of the matters he relates in that testimony. While I ruled that the transcript of the evidence given at the preliminary hearing by Mr. Izzard did meet the criteria for admissibility set out by the Supreme Court of Canada in R. v. Bradshaw, 2017 SCC 35, 411 D.L.R. (4th) 491 (QL), that does not end the matter in respect of what weight may be attributed to that evidence. [14] In Bradshaw the court held at paras. 26 and 27: 26 To determine whether a hearsay statement is admissible, the trial judge assesses the statement s threshold reliability. Threshold reliability is established when the hearsay is sufficiently reliable to overcome the dangers arising from the difficulty of testing it (Khelawon, at para. 49). These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). In assessing threshold reliability, the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them (Khelawon, at paras. 4 and 49; R. v. Hawkins, [1996] 3 S.C.R. 1043, at para. 75). The dangers relate to the difficulties of assessing the declarant s perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome. 27 The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah, at para. 30). [15] In this case, the preliminary hearing evidence of Mr. Izzard was admitted at the threshold level on the basis of procedural reliability. Once admitted at the threshold level, that evidence must be considered not in terms of its admissibility, but rather its reliability. As the court states at para. 39 in Bradshaw: 39 The distinction between threshold and ultimate reliability, while a source of confusion, is crucial (Khelawon, at para. 50). Threshold reliability concerns

Page: 6 admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). When threshold reliability is based on the inherent trustworthiness of the statement, the trial judge and the trier of fact may both assess the trustworthiness of the hearsay statement. However, they do so for different purposes (Khelawon, at paras. 3 and 50). In assessing ultimate reliability, the trier of fact determines whether, and to what degree, the statement should be believed, and thus relied on to decide issues in the case (Khelawon, at para. 50; D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 35-36). This determination is made in the context of the entirety of the evidence including evidence that corroborates the accused s guilt or the declarant s overall credibility (Khelawon, at para. 3). [16] The statements that Mr. Ajak allegedly made to Mr. Izzard would, if true, clearly implicate Mr. Ajak in the murder of Mr. Moar. However, it is in the context of the entire evidence that I have difficulty in relying on the testimony of Mr. Izzard. While the lack of the ability to observe Mr. Izzard directly at the trial is not determinative of this issue, in my opinion, the unsavoury nature of this witness coupled with the numerous inconsistencies identified in his evidence on its own and in contrast to the evidence given by other individuals, leads me to the conclusion that it would be unsafe to rely on his preliminary hearing testimony without it being corroborated in a material way by other more reliable evidence. [17] In my opinion, the evidence which does implicate Mr. Ajak in the murder of Mr. Moar, is the evidence related to the cell phone which was seized at the time of his arrest at approximately 4:00 a.m. on February 15, 2013, and his involvement in borrowing Mr. Ballantyne s van. The question is whether this evidence considered in the context of all of the evidence, including the purported admissions made by Mr. Ajak to Mr. Izzard, is sufficient to establish Mr. Ajak s guilt beyond a reasonable doubt in respect of any or all of the counts on the indictment?

Page: 7 [18] The evidence relied upon by the Crown in advancing its case against Mr. Ajak is almost exclusively, if not entirely, circumstantial. The Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 (QL), recently made some important statements relating to the application of circumstantial evidence in this context and it is instructive to reproduce a portion of that decision here. The court in Villaroman states at para. 30: 30 in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of filling in the blanks by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example.the inferences that may be drawn must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. [19] The court in Villaroman states further at paras. 37 and 38: 37 When assessing circumstantial evidence, the trier of fact should consider other plausible theor[ies] and other reasonable possibilities which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff d [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused : R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. 38 Of course, the line between a plausible theory and speculation is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

Page: 8 [20] In considering this circumstantial evidence, I am mindful that the obligation on the Crown is to prove every essential element of the charges which Mr. Ajak faces beyond a reasonable doubt, but that the Crown is not required to prove each piece of evidence beyond a reasonable doubt. Nevertheless, in my opinion, the evidence here is reasonably capable of supporting an inference other than that the accused is guilty of these offences. I have considered the evidence of all of the witnesses very carefully, including the transcript of the testimony of Mr. Izzard at the preliminary hearing and have come to the conclusion that I am left with a reasonable doubt as to the guilt of Mr. Ajak in respect of each of the three counts. [21] I note for example that the cell phone, which was seized from Mr. Ajak at the time of his arrest, was used by him to contact Mr. Ballantyne in the course of making arrangements to borrow his van prior to the murder. It also appears that based on the evidence related to the use of the cell phone, that the same phone was in the van which left the scene of the murder. This van was followed by an off-duty police officer across the Provencher Street Bridge and into St. Boniface before the officer understandably decided for reasons of his own personal safety, not to continue to follow that vehicle any further. [22] However, it is also in evidence that this phone was used by other members of the gang in the context of making drug deals or for other gang related purposes. In considering all of the evidence, I am not satisfied that at the time of the murder this phone was in the possession of Mr. Ajak or that, notwithstanding the preliminary hearing

Page: 9 testimony of Mr. Izzard, that Mr. Ajak was in the vehicle from which Mr. Chatkana exited and shortly thereafter shot and killed Mr. Moar. [23] While I am satisfied that it was Mr. Ajak who borrowed the van from Mr. Ballantyne sometime after 11:00 p.m. on February 14, 2013, and that the cell phone was used by him for the purposes of making those arrangements, there is no evidence when Mr. Ajak was in possession of the phone after the time that he borrowed the vehicle from Mr. Ballantyne, until he was arrested in the van leaving 548 Sherbrook Street around 4:00 a.m. There is no evidence except the testimony of Mr. Izzard that Mr. Ajak was in the van between the time leading up to the events at the Opera Night Club in the early morning hours of February 15, 2013, and when he re-entered the van from 548 Sherbrook Street shortly before his arrest at approximately 4:00 a.m. [24] While I am convinced that it is likely that Mr. Ajak was involved in some fashion in assisting Mad Cow gang members or associates in carrying out the murder of Mr. Moar, that is not the test. The certainty which the law requires, is proof beyond a reasonable doubt rather than the likelihood of his involvement in this murder. I am not convinced of Mr. Ajak s guilt to a certainty beyond a reasonable doubt. [25] Accordingly, I find Mr. Ajak not guilty of the three counts which he faces pursuant to the indictment. J.