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Excerpted from Supreme Court of Canada – Application for Leave
Part I: Statement of Facts.
The Applicant, Kevin Charles MacKinnon, was arrested on January 30, 1994, four days after a Calgary city shooting, and was released on bail. He was convicted by a judge & jury on October 6, 1995. The following Appeal from conviction was dismissed by the Court of Appeal of Alberta on March 3, 1997. From that judgment, this Application is brought for Leave to Appeal to the Supreme Court of Canada.
The Applicant, Kevin MacKinnon, and the victim, Laine Berube, were good acquaintances, having been room mates who knew each other. On the evening of Wednesday, January 26, 1994, Berube; David McCormack; Racquelle Davis; and a juvenile visitor, Kristyn Oliver, were in the same residence located on the west side, in the city of Calgary, Alberta. They were sitting in the living room of the home talking, listening to music and playing Nintendo video games. Around 9:30 pm a noise was heard from the basement. Berube, then McCormack, investigated. “It was coincidence that Berube was the first to go down.” (Emphasis added)
After stopping to close the back door, McCormack arrived in the basement and saw Berube looking into his own bedroom. Berube could not identify the person he indicated he was facing; stating: “Who the hell are you? What are you doing here?” or words to that effect. Berube told McCormack there was someone there with a gun and to call 911. McCormack called 911 from an upstairs phone at 9:37/9:39 pm. One gun shot was fired while McCormack was dialing. No-one saw or heard any other person, other than Berube. There is no other evidence of what actually happened in the basement, aside from Expert evidence.
Police arrived on the scene within three minutes of the 911 call. Subsequently, police found Berube dead in the basement. Oliver covered in blood. A marijuana grow operation, managed by Berube and McCormack. Stolen properties. A fingerprint was found and did not belong to the Applicant. Several footprints were found in and around the area and again did not belong to the Applicant.
A neighbor, Ted O’Neill, gave evidence that he saw a young white male, 18 to 19 years old, about 5’8’’ in height; 150 pounds a weight; dark shoulder length hair; wearing a medium green jacket, running from the crime scene at approximately 9:30 pm. O’Neill testified the person did not run into anything, and did not carry anything, and affirmed all of this under cross-examination.
At no time is the Applicants 1967 birth date given in evidence. Detective Dorsey gave evidence that the Police Processing Unit, recorded the Applicant’s height at 178 cm (approx. 6 feet), and weight at 78 kg (171 to 172 lb.) Oliver said that on January 26, 1994, the Applicant had a insulated beige/brown winter coat earlier that evening, exhibit 25. Barb Veno gave evidence that the Applicant’s hair was “shorter then.”
In the whole of the Trial, there is no unified description of the Applicant at the relevant time for the benefit of the jury. It was no good just to see the Applicant at trial 18 months later, as was the case. Nor was O’Neill asked the most relevant question of “if it was the Applicant who he saw.” This is very odd, as every other witness (except for Experts) were asked to distinguish the accused. A main issue in this case was identity “of the assailant.” O’Neill’s description clearly does not support it was the Appellant. (Emphasis added)
The Crown’s Forensic and Medical Expert, Dr. Lloyd Denmark, gave evidence that the recovered medium caliber bullet, from within Berube, severed both jugular veins; and that “he would have bled to death within a minute or so of being shot.” Oliver stated Berube was still alive when she held him on her lap: when police waved her out of the basement from outside a window. Detective Bushell said an empty .308 casing was found under Berube’s body. However, there is no forensic, photographic, or other evidence to support this. Denmark stated he could not say what position Berube and the assailant were in. He believed the wound on Berube’s wrist was a soft intermediate object. Thus raised in regards to a possible struggle between the assailant and Berube.
Some two & half days after the shooting was when issue was first brought regarding two black leather jackets (said containing a knife, lighter and some credentials), as not at the Calgary residence. This is about the same time police became involved with a Scot Blakeman. The Applicant was arrested some for days after the shooting after which the police took two leather jackets, knives, lighters, (no credentials), from the Applicant’s apartment. There is no corroborated evidence against “transference.” They also seized a dead coyote; a Tan/Brown color insulated winter coat; a high caliber .308 hunting rifle in inordinately poor condition; and a ski mask, from his broken into car. Documents of testimonial nature, were also taken, and given to the jury.
Crown’s Firearms Expert, Mr. Bruce Gunn, was unable to match the medium caliber bullet recovered from Berube to an empty .308 shell casing, or to the high powered rifle itself. All tests were inconclusive. Crown stated references to the number of bullets the rifle might hold, and alleged what they were used for.
McCormack said one jacket only “looked like” his and he “did not give permission” for anyone to have it. The Applicant’s prevalent condition after arrest/at the time of initial police involvement, was testified to by police as “suffering effects from the arrest.” There was no evidence the Applicant ever understood, or was reactively able to conscientiously exercise any of his rights after arrest at the crucial time of initial police involvement.
In the evening of January 26, 1994, three Crown witnesses; Barb Veno; Jackie Burns; & Mark Burns gave evidence the Applicant was visiting in the home of Veno in the East side of the city Airdrie, located North of Calgary. Collectively they give that the Applicant was at this residence from about 9:15 pm through to some time after ten pm. And that the Applicant behaved in a cursory & normal manner for him. At the time the Applicant arrived at this home, the unsavory witness, Blakeman, was leaving. They all gave evidence Blakeman and the Applicant crossed paths. One was coming in as the other was going out. The jury specifically questioned this, obviously in relation to the alibi evidences. However, they were given transcripts, unverified & testimonial in nature, in response to their question rather than it being read back, as requested.
The unsavory witness, Blakeman, was the crux of the Crown’s circumstantial and highly theorized case. He said the Applicant met him in a bar once he called the Applicant out of Veno’s home. Blakeman was paid large sums of money (ie: more than $ 5,000) to testify, or for his testimony, and received other benefits from police and Crown. Blakeman alone says the Applicant was wearing a leather jacket, tentatively identified as missing from the crime scene, and said the Applicant allegedly showed him a lighter and credentials. Blakeman further stated that the Applicant said “he got in some serious shit” and that he hurt his shoulder by running into something, and that he “wanted to leave the country.” Blakeman said that the Applicant’s car window was broken in, but that the Applicant stated that it had been shot out and his ears were ringing.
Blakeman was of disruptive character with a serious criminal record who admitted to knowingly violating Criminal laws and imposed Court Orders against him. He committed welfare fraud; driving under suspension; and other offences. He willfully violated Court Ordered Firearms Restrictions by being in possession of firearms. He also trafficked drugs in varying amounts and kinds. All, while knowingly under a probation order. He gave ambiguous testimony and was illusive except when it came to assailing the Applicant. He is confirmed giving hearsay statements made at bars and/or parties allegedly made by the Applicant. He was also convicted of a criminal charge a mere two weeks before testifying. The trial judge gave a slim warning about the dangers of accepting this testimony without corroboration; but then instructed the jury to find it, giving ambiguous illustration which did not confirm contentious or damaging areas of Blakeman’s testimony.
Evidence of motive and intent was weak and highly speculative. Crown alleged two motives. First, an old debt incurred in 1992 by Berube alleged as current and unpaid, and further allured to it as drug related. The second was in relation to a custody dispute and Berube’s part in it between the Applicant and the woman who later married him, in May 1996.
Regarding the alleged debt; Crown could not make any specific amount, or that it was for drugs. According to Rene Grimm and Sandra Dash, it related to living expenses. Dash also said the debt had been “sold to two other people.” Paul Wright said the Applicant asked him to help collect money from Berube in December 1992. There’s no evidence the Applicant made any continuous efforts to collect anything after that.
In regards to the custody dispute, and Berube’s part in it, evidence was that the issue was resolved by reconciliation between the Applicant and his spouse some time before this shooting, being effectively resolved.
Regarding intent; though there is nothing substantiating Crown’s burden on intent, one question arises in regards to the shot fired of what was actually aimed at.
Crown Bloodstain Analysis expert, R.C.M.P. Sgt. Bruce MacLean, was effectively kept from giving consequential heights and directions of any of the high impact stains. This distorted trajectory & other factual and necessary information from the jury. The trial judge furthered this error by telling the jury he is not able to question witnesses, despite having questioned most every one of them. MacLean gave evidence that Berube and the assailant were located in a very small area estimated at three feet, and marked it on exhibit 29. Denmark gave similar and corroborating evidence. MacLean gave no evidence of any impact staining towards the east as submitted by the Crown, and trial judge in chaperon with rendition of how Berube was shot.
There was no evidence from either MacLean, Denmark or Gunn with regards to the high velocity and/or foot pounds of impact energy the high caliber 180 grain bullets, for the high powered hunting rifle, would have had on a body at such a closely established range. Nor was there any evidence given with respect to the untenability that a bullet fired from a high powered hunting rifle, would remain within the body and not passing through it at the extremely short distance given in evidence by the two experts. ((Emphasis added)
In receiving the verdict, the jury was not and the record discloses no inquiry of and no response to an inquiry of “so say you all,” or any other affirmation regarding the verdict, thus raising the possibility that the verdict was not unanimous. It is also unclear as to which combination of Criminal Code sections the jury used in reaching their verdict; and of what the verdict was found of.
Counsel for the defense did not call evidence. It appears that there was enough of a preponderance of evidence in favor of the Defense that Defense Counsel’s decision not to specifically call evidence seems reasonable.
Note: Congruency of the statement of facts must be read with the argument submissions for better clarity and view of the defenses they represent.
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