This week’s top three summaries: R v Okich, 2026 ABCJ 76: s.8 #reasonable grounds, R v Brashko, 2026 ABKB 407: #circumstantial evidence, R v Simpson, 2026 ONSC 2940: #remote trial

R v Okich, 2026 ABCJ 76

[May 20, 2026] Charter s.8/9: Reasonable Grounds for Arrest [A.A. Fradsham J.]

AUTHOR’S NOTE: Police officers are entitled to rely on information obtained from others when forming reasonable grounds for arrest. The information supporting an arrest need not be based entirely on the arresting officer’s personal observations and may include hearsay received from fellow officers.

However, as this case demonstrates, reasonable grounds cannot be founded solely upon another officer’s opinion or conclusion. The officer making, directing, or authorizing the arrest must be provided with sufficient underlying facts to independently assess whether the legal threshold for arrest has been met.

Here, the information relayed was that another officer had observed conduct “consistent with trafficking.” That characterization conveyed a conclusion rather than facts. It did not explain what was actually observed, what occurred during the alleged transaction, what objects changed hands, or what features of the interaction suggested drug trafficking rather than innocent conduct.

As a result, the officer directing the arrest was left with nothing more than another officer’s opinion that activity consistent with criminal activity had occurred. While police are entitled to rely on the observations of fellow officers, they are not entitled to substitute another officer’s conclusion for their own assessment of the facts. Reasonable grounds require factual information capable of supporting an objective inference of criminal conduct.

Simply put, the statement that an officer observed activity “consistent with trafficking,” without more, provided no factual foundation upon which the arresting officer could independently form reasonable grounds for arrest.

[2] This ruling is made in a voir dire which was held to determine whether the section 8 and 9 Charter rights of the accused were violated when he was arrested for drug trafficking and a motor vehicle was searched incidental to that arrest.

Findings of Fact Relevant to the Section 8 and 9 Charter Voir Dire

[71] From the evidence before me, including the Agreed Statement of Facts marked as Exhibit 1 in the trial, I make the following findings of fact relevant to the section 8 and 9 Charter issues which are before me:

1. Constable Van Troyen has been a member of the Calgary Police Service (CPS) since 2018,….

2. He was the primary investigator in “Operation OC Gossip” which had Mr. Okich as its target because Mr. Okich had been involved in a firearm incident in June. There was no prior information that Mr. Okich was involved with drug trafficking.

3. Surveillance of Mr. Okich began on July 10, 2024, but it is only the observations made on July 17, 23, and 24 which, taken together, formed the basis for Constable Van Troyen’s belief (arrived at on July 24) that Mr. Okich was trafficking in drugs.

4. I find that on July 24, 2024, when Constable Van Troyen directed members of the Calgary Police Service to arrest Mr. Okich for drug trafficking, the Constable had a subjective belief that Mr. Okich was trafficking in drugs….

5. The observations made on July 17, 2024 were that Mr. Okich and his brother (Martin) drove to an apartment complex in Calgary called “the Gateway Apartments”. Mr. Okich went into the apartment complex. There was no meeting observed, and, in the opinion of Constable Van Troyen, there was no “activity consistent with drug trafficking”. I accept that there was no such activity. After Mr. Okich left the apartment complex seven minutes later, the vehicle with Mr. Okich and his brother as occupants parked in a parking lot adjacent to the Gateway Apartments and sat there. It is a location from which one may view who is entering and exiting the area. “The occupants [of the vehicle] appeared to be watching passing traffic. The [vehicle] left the parking lot four minutes later and then drove to a vape store”: Agreed Statement of Facts, paragraph 5(c). Constable Van Troyen was of the view that this constituted a “heat check”. This observation did not form part of Constable Van Troyen’s grounds for directing the arrest of Mr. Okich. Though Constable Van Troyen said that what he considered to be a “heat check” “informed [his] impression of the suspected meet”, there is no evidence of a meet on the 17th, and I do not find that there was a “meet” on July 17. I find that the events classified by Constable Van Troyen as a “heat check” simply made him suspicious of what was observed on July 17.

6. On July 23, 2024, there were two observed events.

7. The first observation on July 23 was that at 14:30 hours….

….I accept Constable Van Troyen’s statement that there was nothing in that surveillance summary (which contained the information I have just set out) which was activity consistent with drug trafficking.

8. The second observation of July 23 was that at 17:05 hours Mr. Okich and his brother (Martin) were observed to go to the Martin Crossing Crescent location while in the Audi motor vehicle. At that location, an unknown male was seen getting into in the back passenger side of the vehicle. The vehicle then went to a gas station, a convenience store, and a vape store. At 18:21 hours the vehicle arrived at the residence of Mr. Okich’s brother (at [ ] – 67th Avenue S.W.) and everyone exited the vehicle and went into the apartment complex. Sometime later, Mr. Okich’s brother was seen on a balcony of the complex. Surveillance was continued until 21:20 hours when it was terminated with nothing else being noted.

9. At the end of July 23, Constable Van Troyen had a suspicion, but not a subjective belief, that Mr. Okich was engaged in drug trafficking.

10. On July 24, 2024, Constable Van Troyen spoke to Mr. Okich’s parole officer. He told the parole officer of the observations made of Mr. Okich during surveillance. The Constable was told that a parole violation arrest warrant would be issued for Mr. Okich.

11. Constable Van Troyen spoke with the “street boss” of the surveillance team then monitoring Mr. Okich. Constable Van Troyen was told that Mr. Okich and his girlfriend had attended at a particular address, and that “activities consistent with drug trafficking” had been observed in relation to Mr. Okich. Constable Van Troyen was not told of the facts from which that conclusion had been reached. This information came from a surveillance team other than his own team.[Emphasis by PJM]

12. The phrase “activity consistent with drug trafficking” is not defined in any Calgary Police Service policy or by any criteria set by the Calgary Police Service. It is not a term of art (i.e., it is not “a word or phrase used in a definite or precise sense in some particular subject”: The Oxford English Dictionary, Second Edition, Volume XVII, p. 801). It is an opinion of an individual officer which is based upon that individual officer’s experience, and the observed conduct or actions which will be considered to constitute “activity consistent with drug trafficking” can vary significantly from officer to officer.

13. The Agreed Statement of Facts set out these observations made on July 24 (though these details were not known to Constable Van Troyen when he formed his belief that Mr. Okich was trafficking in drugs):

b. At 12:14 HRS OKICH was observed outside the Harry Hays Building. He got into the driver’s seat of the FX with ZIEGLER in the passenger seat, and drove to the area of 67 Avenue and 5 Street SE.

d. The FX was then driven to the area of 19 Falchurch Road NE where it parked at the curb. An unidentified male got into the back seat of the FX. Two minutes later the male exited the vehicle and went into 19 Falchurch Road NE.

e. One minute after that the same unidentified male came out of 19 Falchurch Road NE with a backpack and re-entered the rear passenger seat of the FX The FX was driven to Falmead Road NE where it stopped next to the curb. The unidentified male got out of the FX and into a Dodge Ram truck.

[72] No observations were ever made at any time of hand-to-hand transactions.

Law and Analysis

[73] Section 495(1)(a) of the Criminal Code states: “A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence”.

[74] Constable Van Troyen had a subjective belief that Mr. Okich was engaged in “drug trafficking” which is a reference to the indictable offence created by section 5(1) of the Controlled Drugs and Substances Act.

[76] The applicable law is summarized by our Court of Appeal in R. v. Ha 2018 ABCA 233. In that decision, the majority said:

[18] Charter-compliant “reasonable and probable grounds” have a subjective and an objective component. The arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. The grounds must also be justifiable from an objective point of view such that a reasonable person placed in the position of the arresting officer, must be able to conclude that there were reasonable and probable grounds for the arrest. Police are not, however, required to establish a prima facie case for a conviction before making an arrest: R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241, 53 CCC (3d) 316.

[77] The Court went on to say:

[28] Whether the totality of the evidence supports an objective finding of reasonable and probable grounds to arrest, is assessed through the eyes of the reasonable person with the experience and knowledge of the arresting officer….

34] Put another way, the presence of other possible, plausible, innocent explanations for police-observed behaviour does not legally or automatically negate credibly-based probability, that is, reasonable and probable grounds. All that Cst Campeau required was to have an objectively reasonable basis for believing the appellant was engaged in an illicit drug transaction, without necessarily ruling out potentially innocent inferences, defences or lawful excuses: see, for example: R v MacCannell, 2014 BCCA 254 at para 45, 314 CCC (3d) 514.

[36] In my view, the standard of credibly-based probability neither requires an officer to satisfy him or herself that there is evidence of proof beyond a reasonable doubt nor even a prima facie case. It is self-evident that only information that a police officer has good reason to believe is unreliable can be disregarded, and equivocal or exculpatory information cannot be ignored.

[37] The material inquiry is not whether particular conduct is ‘innocent’ or ‘guilty’; the test is “whether a reasonable person in the position of the officer would conclude that there were reasonable and probable grounds”: R v Rajaratnam, 2006 ABCA 333 at para 22, 397 AR 126, citing Storrey.

[78] In R. v. McClelland 1995 ABCA 199, the Court said “that the question of the existence of reasonable and probable grounds must be based on the facts known by or available to the police officer at the time he formed the requisite belief….

[79] Justice Slatter issued separate reasons, concurring in the result, in R. v. Ha, supra. Though his detailed analysis was not specifically incorporated into the majority’s reasons, I am of the respectful view that his analysis is supported by the authorities.

[81] ….Relying on the Supreme Court of Canada’s decision in R. v. Debot [1989] 2 S.C.R. 1140, Justice Slatter concluded that an officer who is simply following instructions from another officer to effect an arrest need not him or herself have knowledge giving rise to reasonable grounds to effect the arrest. In other words, the officer who must have the reasonable grounds to effect the arrest is the officer who makes the decision to have the arrest effected, regardless of whom actually carries out the decision and effects the arrest.[Emphasis by PJM]

[82] Justice Slatter went on to state the officer who makes the decision (and gives the order) to effect the arrest may rely on information provided to him or her by other officers. Justice Slatter said:

[79] These cases also establish that one police officer can rely on information conveyed by another without inquiring into the reliability or source of that information. Information exchanged between the police is not subject to the same scrutiny as information received from confidential informants or civilians. If the conveyed information is later shown to be reliable, it can be used to justify the arrest.

[83] However, Justice Slatter’s analysis makes it clear that the person making the decision to effect the arrest must have information which gives rise to reasonable grounds to believe that the requisite offence has been (or will be) committed by the person to be arrested.[Emphasis by PJM]

[84] As noted, the majority reasons in R. v. Ha, supra, referred to the statement in R. v. McClelland, supra, that “the question of the existence of reasonable and probable grounds must be based on the facts known by or available to the police officer at the time he formed the requisite belief” (emphasis added). The phrase “or available to the police officer” refers to information which is not personally known to the officer but which has been provided to him or her by another officer. However, what is crucial is that the officer who makes the decision to effect the arrest (regardless of who actually effects the arrest) must have reasonable and probable grounds to do so based on information which is either personally known to him or her or is information provided to him or her by another officer, or some combination of both.[Emphasis by PJM]

[86] “Information”, in this context, is defined as “facts provided or learned about something or someone”: Oxford Dictionary of English, Third Edition (Oxford: Oxford University Press, 2010), at p. 897….

[87] In the case at bar, at the end of July 23, Constable Van Troyen had a suspicion, but not a subjective belief, that Mr. Okich was engaged in drug trafficking. On July 24, the Constable was told by the “street boss” of the surveillance team then observing Mr. Okich that Mr. Okich had engaged in “activities consistent with drug trafficking”. He was not told what facts led to that conclusion by the surveillance team. Constable Van Troyen considered the statement made by the “street boss” of the July 24 surveillance team in conjunction with the observations made on July 17 and 23, then formed his subjective belief that Mr. Okich was engaged in drug trafficking, and instructed other police officers to arrest Mr. Okich for drug trafficking.

[88] As discussed by Madam Justice Hughes in paragraphs 10-20 of R. v. Navales 2011 ABQB 404, there are three levels of confidence:

1. Mere suspicion: “an expectation that the targeted individual is possibly engaged in some criminal activity”.

2. Reasonable suspicion: “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.” As Justice Binnie said in R. v. Kang-Brown 2008 SCC 18, at paragraph 75, quoting with approval a comment made by Professor Sankoff: a reasonable suspicion “must be supported by factual elements which can be adduced into evidence and which permit an independent judicial assessment”. In R. v. Urban 2017 ABCA 436, the Court stated that the reasonable suspicion standard is somewhat low: “an officer’s grounds need only objectively indicate a possibility that the suspect is committing a crime” (paragraph 42).

3. Reasonable and probable grounds: a belief which is based on credibly-based probability; the standard “is one of reasonable probability”. “The distinction between ‘reasonable suspicion’ and ‘reasonable and probable grounds’ is merely the degree of probability that a person is involved in criminal activity.”

[90] The only new event which occurred on July 24 and which led to Constable Van Troyen to form a subjective belief that Mr. Okich was engaged in drug trafficking was that the Constable was told by the “street boss” that the surveillance team had observed on July 24 “activities consistent with drug trafficking”. Constable Van Troyen was not told of any of the observations which led to that conclusion.

[91] It is an interesting question whether such a conclusion constitutes “information” as that word is used in R. v. Ha, supra. Statements made to a person occupy a spectrum ranging from assertions of fact all the way to bald conclusions (I use the term “bald conclusion” to describe a conclusion expressed with no supporting fact or analysis, and with no additional factors which would bolster the reliability of the conclusion). Whether a bald conclusion can ever constitute “information” upon which an officer may rely in forming his or her reasonable belief, is, as it turns out, not a question I need to decide today.[Emphasis by PJM]

[92] ….There might be situations in which the officer being told by another officer that “activities consistent with drug trafficking” had been observed (without being told what the observations were) could give significant weight to that stand-alone conclusion because of prior knowledge of how that particular observing officer defined “activities consistent with drug trafficking”. However, that is not the case here. There is no evidence that Constable Van Troyen knew anything about what that particular “street boss” meant by the term. Indeed, the particular surveillance team in question was not Constable Van Troyen’s team.[Emphasis by PJM]

[93] Consequently, at the end of July 23, Constable Van Troyen had, at best, a reasonable suspicion that Mr. Okich was involved in drug trafficking. On July 24, the only additional factor which he could add to the observations of July 17 and 23 was that a surveillance team said they had observed “activities consistent with drug trafficking”. He was told nothing of the actual observations. Constable Van Troyen knew that when an officer would use that phrase depended upon that particular officer’s experience and that when the phrase was used could vary significantly from officer to officer. There is no evidence that Constable Van Troyen knew anything about the experience of the officer who had reached the conclusion that there had been activities consistent with drug trafficking. The new factor learned by Constable Van Troyen on July 24 had very little utility.

[94] In my respectful view, taking into account all that Constable Van Troyen knew or had available to him when he formed his subjective belief, and when Mr. Okich was actually arrested at Constable Van Troyen’s direction, Constable Van Troyen still had no more than a reasonable suspicion….

[95] Consequently, the search of the motor vehicle, and the seizures effected as part of that search, all being incidental to the arrest of Mr. Okich for drug trafficking, were unreasonable.

R v Brashko, 2026 ABKB 407

[May 27, 2026] Circumstantial Evidence of Identification and Offending [John T. Henderson J.] 

AUTHOR’S NOTE: In a circumstantial case, the evidence must be assessed as a whole. The trier of fact cannot examine individual pieces of evidence in isolation, but must consider the cumulative force of all the evidence in determining whether guilt is the only reasonable inference available.

Equally important, however, is consideration of what the evidence does not establish. A reasonable doubt may arise not only from evidence that is present, but from the absence of evidence that one would reasonably expect to find if the Crown’s theory were correct. Where evidentiary gaps undermine the strength of an inculpatory inference or leave open a realistic alternative explanation, those gaps must form part of the analysis.

Here, the Crown relied on evidence of opportunity, motive, and means. While those factors were capable of supporting suspicion, they did not eliminate the possibility that another individual committed the murder. The missing evidence in the case left critical aspects of the Crown’s theory unproven and failed to meaningfully distinguish the accused from other potential perpetrators.

The trial judge was therefore required to consider not only the inculpatory circumstances that pointed toward the accused, but also the evidentiary absences that weakened the inference of guilt. A focus on the evidence that supported the Crown’s theory which did not adequately address the significance of the evidence that was lacking, risked treating suspicion as proof.

The existence of opportunity, motive, and means may support an inference of guilt, but those factors do not establish identity beyond a reasonable doubt where the evidence, viewed as a whole—including its omissions and gaps—continues to leave open the reasonable possibility that someone else was the culprit.

V. Analysis

[129] The Crown theory is simply stated. Mr. Brashko arrived at the Deceased home on August 31, 2023 at approximately 5:00 pm. He was in the home when Ms. Leblanc arrived at 5:45 pm to give the Deceased money for a car payment. The Crown theorizes that Mr. Brashko remained in the home even after the door to the home closed at 6:27 pm and that at some time between 6:27 pm and midnight, Mr. Brashko killed the Deceased by slashing his neck with a sharp instrument. The Crown theory is that Mr. Brashko changed his clothes which had become covered with blood. He then put the Deceased’s collection of silver in two bags and started a fire in the basement before leaving the residence at approximately 12:10 am on September 1, 2023. The Crown theorizes that Mr. Brashko carried the bags containing the silver and walked past the Shell station before getting in a cab which took him to his residence.

[130] There is no doubt that the circumstances disclosed in the evidence are clearly very suspicious. The Crown theory is based on a chain of established facts, which the Crown submits gives rise to an inference that Mr. Brashko is guilty of the offences charged.

[131] The simplicity of the Crown theory is dangerously seductive. However, the critical question remains whether, when applying the proper principles of law, it is appropriate to infer that Mr. Brashko was the assailant. Does the evidence prove beyond a reasonable doubt that Mr. Brashko killed the Deceased?

[134] Mr. Brashko’s statement that he did not kill the Deceased was made in response to a very short question:

Q. I have to ask you, Nick. Did you kill Fred?

A. No.

[135] When Mr. Brashko was asked to repeat the answer, he simply said that he was exercising his right to silence. Mr. Brashko was entitled to exercise this right, and no inference can arise from this. However, it is difficult to assess the bald denial in these circumstances. The assessment is also difficult because the statement was not under oath and was not subject to cross examination. His denial must nevertheless be considered in the context of all the evidence.

[136] Some of the circumstantial evidence is of sufficient concern that it would not permit me to conclude that I believe Mr. Brashko. For example, evidence that the cab dropped off a person very close to Mr. Brashko’s home within one hour of the fire alarm is of concern. Even though this may not necessarily give rise to an inference on identity, this and other pieces of circumstantial evidence are of sufficient concern that I would not acquit at stage one.

[137] At the second stage of W(D) I must consider whether even though I do not believe Mr. Brashko’s statement to police, that statement along with the other exculpatory evidence leaves me with a reasonable doubt because his denial of responsibility may be true. When undertaking this assessment, I remind myself that I can believe and rely on some, none, or all Mr. Brashko’s statement.

[138] Whether I am left with reasonable doubt at stage two requires and assessment of the strength of the circumstantial evidence and what, if any, inferences can be made regarding identity, which is the assessment that is required at stage three of W(D). For this reason, in the present case, stages two and three are closely linked and can be assessed together.

[139] I conclude that none of the circumstantial evidence, when considered on its own is sufficient to establish identity beyond a reasonable doubt. As I have explained, each piece of circumstantial evidence, when considered individually, suffers from frailties. However as noted by Justice Renke in Munn at para 27:

In circumstantial cases, the whole may be greater than the parts. The interaction between the elements of the case and the sheer improbabilities associated with the co-existence of the elements of the case with the innocence of the accused must be considered. See R v Uhrig, 2012 ONCA 470 at para 13.

(emphasis added)

[140] I conclude that frailties exist, even when the circumstantial evidence is assessed in totality. The fundamental basis of the Crown theory is that Mr. Brashko remained alone with the Deceased in the residence even after the door was closed at 6:27 pm. But there is no evidence of this.

[141] More specifically, there is no evidence that Mr. Brashko remained in the residence after Ms. Leblanc left at 5:45 pm. On the other hand, there is no evidence that Mr. Brashko left the residence before the door closed at 6:27 pm, apart from his own statement to police.

[142] The evidence clearly establishes that Mr. Brashko had the opportunity to leave at any time between 5:45 pm when Ms. Lablanc left and 6:27 pm when the door closed. This opportunity becomes a more significant factor because Mr. Brashko told police he left the Deceased’s residence within one or two hours after arrival. This portion of his statement is at least partially consistent with the evidence that the door was open until 6:27 pm.

[143] The Crown theory is that Mr. Brashko was alone with the Deceased after 6:27 pm. There is no evidence that another person came into the home prior to the door closing and it would be speculative to suggest that this happened. However, it would be equally speculative to assume that another person did not come into the home prior to the door closing. There is simply no evidence on this point, and no conclusions or inferences can arise in this regard.

[144] The Crown attempts to buttress the submission that Mr. Brashko stayed in the residence by reference to the sequence of events that happened shortly after midnight. Most particularly, the chain of events that began at the Shell gas station when a man was observed carrying two bags approximately 10 minutes after the door to the Deceased’s residence opened for the last time at 12:10 am. The timing is very suspicious, but there is nothing in the video that would permit a conclusion that the person in the video was Mr. Brashko. Evidence of the taxi driver picking up a passenger near the Shell station and dropping the person off in very close proximity to Mr. Brashko’s residence is important circumstantial evidence which lends strength to the Crown’s theory that the Shell video depicts Mr. Brashko. But it does not provide sufficient strength to permit that conclusion because the cab driver did not see where the man went after getting out of the cab. Moreover, the evidence establishes that the location of the drop-off was a busy area near 118 avenue which cabs often frequent. The drop off location is important circumstantial evidence but far from sufficient to support an inference as to identity.[Emphasis by PJM]

[146] Police found a substantial amount of silver in Mr. Brashko’s home when they executed the search warrant on September 4, 2023. The theory of the Crown is that the silver was stolen from the Deceased by Mr. Brashko and then carried in the two bags seen in the Shell video.

[147] The presence of a large amount of silver in Mr. Brashko’s residence is certainly very suspicious because Mr. Brashko was in very difficult financial circumstances which would not generally be consistent with a collector of silver. This potentially supports the Crown theory.

[148] The evidence establishes that the Deceased was a collector of silver, among other items, as was confirmed by Mr. Brashko’s statement to police. This also potentially supports the theory of the Crown.

[149] Some of the post offence conduct is closely related to the alleged theft of the silver and needs to be considered in conjunction with the totality of the evidence. When Mr. Brashko was under police surveillance, he was seen disposing of plastic wrapping and containers that appear to have been designed for holding coins. In addition, Mr Brashko purchased 2 watches for approximately $700 within a day of the death and was in possession of $260 cash when he was arrested. This potentially supports an inference that the silver was stolen and was then taken from its packaging before being sold to purchase the watches. This would also provide an explanation for the cash in Mr. Brashko’s possession on arrest.

[150] But any inference that Mr. Brashko pawned stolen silver coins shortly after the death and used the proceeds to purchase 2 watches is significantly weakened by evidence that Mr. Brashko had pattern of pawning silver in July and August 2023, well before the death of the Deceased. There is nothing to distinguish the pawning that took place immediately after the death from the pawning that took place in the weeks before the death. Thus, the post offence conduct does not assist in reaching a conclusion as to whether the silver was stolen.

[151] More importantly, as I have previously explained, Mr. Brashko told police that he purchased silver from the Deceased with the money he had available following the death of his mother. Banking records confirm a flow of money in the amount that Mr. Brashko says that he spent on silver, $6,000 to $7,000. The banking records do not confirm that the money was used for the purchase of silver. But on the other hand, Mr. Brashko has no obligation to explain any of this.

[152] Equally importantly, when the silver was found in the Deceased’s home it was not found in bags resembling those in the Shell video but instead was found in a Molson’s Canadian soft sided cooler which was inside a blue duffle bag. Bags resembling those seen in the Shell video were never recovered, either in Mr. Brashko’s residence or elsewhere. This weakens any potential inference that the silver was stolen from the Deceased’s residence on the day of the murder. This in turn weakens any potential inference that Mr. Brashko was responsible for the death and the fire.

[153] But, even if it is assumed that Mr. Brashko stole silver from the Deceased and that the silver in the Molson bag found in Mr. Brashko’s home belonged to the Deceased, this would still not necessarily permit an inference that Mr. Brashko killed the Deceased. A finding that Mr. Brashko was a thief would not support a conclusion that he is also a murderer. That would amount to a substantial gap which could only be bridged by “filling in the blanks.” This is prohibited.[Emphasis by PJM]

[154] The circumstantial evidence and the inferences that the Crown proposes that support a conclusion that Mr. Brashko is the assailant must also be considered in the context of the evidence that is absent in this case. There is an absence of evidence that would link Mr. Brashko to the death and the fire. For example:

 No murder weapon was found, despite extensive searches at the residences of Mr. Brashko and the Deceased and presumably elsewhere. Thus, there can be no linkage between Mr. Brasko and the weapon….

 The two bags seen in the Shell video were never located in Mr. Brashko’s residence despite police conducting an extensive search for them. Nor is there any evidence that those bags came from the Deceased’s residence….

 There is no evidence of the whereabouts of the clothing that Mr. Brashko was wearing at the time that he arrived at the Deceased’s residence. The Crown theory is that Mr. Brashko changed his clothing when they became contaminated with blood during the murder. But there is no evidence of this clothing having been located despite searches in Mr. Brashko’s residence and the Deceased’s residence specifically for these items.

 The Shell video shows the man walking past the gas pumps wearing shoes similar to those that Mr. Brashko was wearing when he arrived at the Deceased’s residence. It would be expected that if Mr. Brashko committed the murder and was wearing those shoes they would also have been contaminated with blood. But there is no evidence of shoes found in Mr. Brashko’s home that were contaminated with blood.

 There is no forensic evidence of the Deceased’s blood or DNA located in Mr. Brashko’s home. The Crown theory is that after the murder Mr. Brashko stole the silver, presumably after he had been contaminated with the Deceased’s blood. But no blood or DNA was found on the silver in Mr. Brashko’s residence. Nor is there any evidence of the Deceased’s DNA being found on any other items in the Deceased’s residence.

 The Crown theory is that after his clothing became contaminated with the Deceased’s blood, Mr. Blashko removed his own clothing and put on clothing that was free of blood, presumably clothing found in the Deceased’s home. This clothing was never identified in Mr. Brashko’s home and thus there is no forensic evidence showing that the clothing belonged to the Deceased. Nor is there any evidence of any smoke found on clothing in the Deceased’s residence.[Emphasis by PJM]

[155] To prove that the Accused committed these offences, the Crown is not required to prove any of the items I have identified. However, the presence of evidence of any of these factors would have significantly impacted the strength of the inferences available from the circumstantial evidence. None of these factors alone give rise to reasonable doubt. But they are all factors that must be considered in the context of the evidence as a whole.[Emphasis by PJM]

[156] Mr. Brashko told police that he did not kill the Deceased. He told police that he left the Deceased’s residence within one or two hours of his arrival at 5:00 pm. When I consider these statements in the context of all the evidence, including the circumstantial evidence, I am left with a reasonable doubt that his statement may be true.

[157] It is not possible to properly draw an inference from the circumstantial evidence that Mr. Brashko is the assailant.

[158] It would be too dangerous to convict on the totality of the evidence presented.

VI. Conclusion

[159] I find Mr. Brashko not guilty on both counts on the Indictment.