The Defence Toolkit – October 18, 2025: Criminal Defence Crisis



Anonymous Tipster | Circumstantial Identification Evidence | Ineffective Counsel



Posted On 18 October 2025

This week’s top three summaries: R v BN, 2025 ABKB 535: #ineffective lawyer, R v Shah, 2025 ABKB 535: s.8 #informant, R v Mohamed Mussa, 2025 ABKB 543: #circumstantial ID

R. v. BN, 2025 ABKB 535

[September 18, 2025] Ineffective Assistance of Counsel [Justice C.D. Millsap]

AUTHOR’S NOTE: Judicial Courage and the Erosion of Competent Defence Representation

The principles in this decision are not novel — but the courage of the trial judge to apply them faithfully is, regrettably, an outlier in our current system.

In this sexual offence case, defence counsel acknowledged limited experience with such matters and failed to cross-examine the complainant before calling an alternative factual version from the accused. This was a clear breach of the rule in Browne v Dunn, which requires that significant differences in evidence be put to opposing witnesses. The trial judge correctly found the defect incurable and ordered a mistrial.

The broader implications are deeply troubling. Alberta’s criminal bar has seen a rapid influx of inexperienced lawyers in recent years, due in part to systemic pressures — including the 2022 legal aid job action, during which certificates continued to be issued while most senior counsel withdrew their services to demand proper funding. Many of those drawn into practice at that time have remained.

Yet, there is no meaningful oversight of quality of representation. The Law Society allows any lawyer to take on serious criminal cases regardless of experience. Legal Aid Alberta continues to assign complex matters — including sexual assault trials — to inexperienced counsel, and there are no mandatory education standards imposed on the bar.

The predictable result is now being felt daily: fundamental evidentiary rules ignored, cross-examination misapplied or omitted, and trials rendered unfair through sheer lack of competence. This case underscores the critical need for judicial intervention when the adversarial balance collapses. A fair trial presupposes two capable and informed parties. When that fails, the judge becomes the final safeguard of justice.

I. Introduction

[1] Courts rely on counsel in criminal trials to assist in safeguarding and ensuring trial fairness. In most cases, counsel fulfills this role. At times, however, counsel may be underresourced, overburdened, or inexperienced in ways that may present risks to trial fairness. Where lesser measures cannot address those risks and trial fairness has been irreparably compromised, a trial judge may, as a last resort, declare a mistrial.

[2] On May 2, 2025, after 5 days of trial with a jury, a mistrial was declared of the Court’s own motion. Due to the manner in which the defence of the Accused was conducted up to that point, it was determined that trial fairness had been irreparably compromised.

II. Law

A. Role of the Court

[3] One of the many roles of the Court is to act as a gatekeeper to ensure an accused person receives a fair trial, as well as to ensure that the administration of justice is not brought into disrepute during the conduct of the trial.

[4] Trial judges are vested with broad discretion to manage proceedings so that they unfold fairly, effectively, and efficiently: R v Samaniego, 2022 SCC 9 at paras 20-21 [Samaniego]. Judges may exercise this discretion to restrict irrelevant or argumentative cross-examination questions, ask questions if counsel fails to address an issue, correct inappropriate conduct by counsel or witnesses, and otherwise ensure a fair trial: R v Switzer, 2014 ABCA 129 at para 13; Samaniego at para 22. Judges are not expected to be “passive” or “sphinx judges”; at times, intervention is required to ensure justice is done: R v Brouillard, 1985 CanLII 56 (SCC) at para 17; see also Samaniego at para 22.

[5] ….Counsel are presumed to act competently: R v Lundle, 2023 ABCA 11 at para 14 [Lundle]. Decisions that may appear unwise, unconventional, or perplexing from the bench are assumed to reflect counsel’s broader understanding of the facts and context: Magotiaux J, Trial Judge’s Obligations at 2.

[6] Where, however, the absence of counsel or the absence of effective counsel threatens to undermine a fair trial or to imperil the liberty interest of the accused, there is a duty on trial judges to do what can be done to preserve trial fairness: R v CG, 2015 ONSC 2954 at para 49 [CG], aff’d 2018 ONCA 392, citing Justice Paciocco in The Case for Judicial Intervention for the Under-represented Accused.

B. Jurisdiction to Grant a Mistrial

[7] Trial judges have broad common law powers to declare a mistrial as a solution to a wide range of situations: R v Burke, 2002 SCC 55 at para 74 [Burke]. Although rarely exercised, that power includes the ability to do so on their own motion: see e.g. R v RE, 2025 ONSC 2795 at paras 7, 167 [RE]; R v Malito, 2021 ONCJ 174 at paras 1, 43; R v Ram, 2015 ONCJ 200 at para 1; R v Simon, 2017 ABQB 585 at para 38.

[8] A judge should only declare a mistrial where there is a real danger of prejudice to the accused and/or a miscarriage of justice: Burke at para 74; R v Cawthorne, 2016 SCC 32 at para 39; R v Burr, 2025 ABKB 449 at para 18. A miscarriage of justice can arise where a trial is unfair, or when the trial has the appearance of unfairness, viewed by a well-informed, reasonable person considering the whole of the circumstances: R v Khan, 2001 SCC 86 at para 73 [Khan].

[9] The trial judge is in the best position to assess the possible impact of an error on the jury, and the effectiveness of any warnings issued to the jury: Burke at para 75. The trial judge should consider the following before determining whether a trial has been unfair:

1. Did the irregularity pertain to a question which was central to the case against the accused?

2. What influence could the irregularity—or the cumulative effect of several irregularities—have had on the verdict, and how severe could any detrimental effects have been for the accused’s case?

3. Was it a trial by jury, for whom some irregularities can have a psychological effect, or by a judge sitting alone?

4. Was the irregularity remedied, in full or in part, at the trial?

5. The focus should be on the effect of the irregularity on the fairness of the trial and the appearance of unfairness, not on whether the irregularity was accidental or intentional.

6. What was the attitude of defence counsel if and when he was confronted with the irregularity (for example, if he failed to object to the irregularity despite having the opportunity to do so)? [citations omitted]

R v JMW, 2020 ABCA 294 at para 20, as stated by Khan at paras 75-85.

C. Ineffective Assistance of Counsel

[11] Inherent in the Right to Counsel afforded by the Charter of Rights and Freedoms, is that accused has a right to effective representation: R v Clarke, 2024 ABCA 346 at para 24. This is particularly so during the trial process.

[12] Effective representation serves two purposes. First, it enhances the reliability of the verdict by facilitating the adversarial process. Second, it promotes adjudicative fairness: R v Lundrigan, 2020 ABCA 281 at paras 59-61 [Lundrigan]. Counsel’s representations may result in a miscarriage of justice if they compromise trial fairness or undermine the reliability of the verdict: Lundrigan at para 67.

[13] Incompetence of counsel is best analyzed as a component of the right to a fair trial, and the right to make full answer and defence: R v Meer, 2015 ABCA 141 at para 43, aff’d 2016 SCC 5. When concerns about ineffective assistance arise mid-trial, they should be assessed through the framework for mistrial applications: CG at para 4.

[14] Ineffective assistance of counsel has two components: 1) a performance component where counsel’s acts or omissions constituted incompetence; and 2) a prejudice component where a miscarriage of justice resulted: R v White, 2022 SCC 7 at para 6. The decisions made by counsel at trial are assessed “against a reasonableness standard, with reference to the circumstances of this case at the time of trial and without benefit of hindsight”: Lundle at para 14.

III. Analysis

[15] The right to counsel and to choice of representation is a Charter protected right, and the Court must keep that fact in mind when engaging in this analysis: R v McCrimmon, 2010 SCC 36 at para 17.

[16]….When the conduct of defence counsel brings into question or raises a reasonable likelihood of a miscarriage of justice, the trial judge must intervene….

[18] There is presumption in favour of counsel’s competence in respect of tactical decisions made at trial: Lundle at para 14. As such, whether the questionable conduct of counsel throughout the trial is something that can be considered tactical or not must be considered. In this case, the analysis included not only the perceived legal errors made but also the comments of defence counsel during the mid-trial admissibility voir dire. Their candid admission regarding their lack of experience in both trials of this nature and with the particular voir dire process we undertook to determine if the alleged prior statement of the complainant could be tendered by the crown was also considered: something that this court considers a rather routine and uncomplicated issue.

[19] Importantly, this analysis also included what can only be characterized as a complete lack of cross-examination of the Complainant about the two alleged sexual assaults that make up counts one and two on the Indictment. It would be a massive leap to conclude that the failure to confront that Complainant on the specifics of the allegations or pose an alternative set of facts to her were tactical decisions made for the purpose of advancing a viable defence for the Accused. It can only be concluded that these were blatant errors that at a minimum offended the rule in Browne v Dunn and could have effectively robbed the Defendant of the ability to meaningfully deny the allegations. The latter point being particularly germane as the Defendant gave evidence that the alleged incidents did not occur.[Emphasis by PJM]

[20] Perfection is not the standard to be expected from defence counsel, as BN is not entitled to a perfect trial, only a fair one: R v Breitkreutz, 2025 ABCA 165 at paras 7, 56; A fair trial is one that allows the jury to pursue and evaluate the truth, and preserves “basic procedural fairness”: R v Harrer, 1995 CanLII 70 (SCC) at para 45. However, the only reasonable conclusion that could be drawn after the first 5 days of trial is that procedural and trial fairness had been compromised due to defence counsel’s conduct.[Emphasis by PJM]

[21] Ineffective assistance of counsel claims are most often raised on appeal following a conviction. However, it would be improper for a trial judge to sit idle when confronted with circumstances that would meet the test for appellate intervention; particularly, given that not every person can or will appeal for a variety of reasons, including due to financial constraints, lack of insight, or a loss of faith in the justice system: RE at paras 205-8.[Emphasis by PJM]

[22] I note that BN, this Accused, is a person of colour and he is an immigrant. The Court can take judicial notice of the serious over-representation of persons of colour in Canadian gaols. Additionally, the serious consequences to this Accused if he were to be convicted of these offences must also be given due consideration. The ineffective assistance of counsel has been a contributing factor in a number of wrongful convictions, often when the accused is a marginalized individual: Malini Vjaykumar, “A Crisis of Conscience: Miscarriages of Justice and Indigenous Defendants in Canada” (2018) 51:1 UBC L Rev 161 at 197-99. While the particular circumstances and background of a defendant do not change the legal obligations of the court or officers of the court, or the test of when a court should intervene in the trial process, the court must be conscious of them.

[24] Ultimately, a mistrial should only be declared where no lesser remedy would adequately address the harm: Burke at para 75; TGB at para 6; R v BB, 2018 ABCA 420 at para 19, and only after considering whether a further instruction to the jury, recalling witnesses, or other potential mid-trial remedies would give the court confidence that the accused could still receive a fair trial and whether the trial process as a whole would be seen as anything other than a miscarriage of justice: R v AG, 2015 ONCA 159 at para 50; R v Maple, 2023 SKKB 202 at para 52; Khan at para 52; see also Magotiaux J, Trial Judge’s Obligations at 8-11.[Emphasis by PJM]

[25] Could further cross-examination of the witnesses resolve the Browne v Dunn issue that has been extant since virtually the start of the trial? It cannot. Respectfully, there is considerable doubt as to whether defence counsel has a good enough working knowledge of the rule such that it would be complied with even if witnesses were recalled.

[26] The next relevant inquiry is whether further instruction to the jury could remedy the concerns with the numerous times character evidence has been either purposefully or inadvertently elicited by counsel, including during their opening statement. And, again, it cannot.

[27] In this case trial fairness cannot be pulled from the fire, as the cumulative impact of the above noted conduct has caused a fatal wounding of the trial process. When the Court in this case asks, is there a real danger of substantial prejudice to the accused or a miscarriage of justice? The only answer is a resounding ‘yes’.

[28] This trial has been fatally wounded by a thousand cuts, such that mid-trial and/or final instructions are not capable of stopping the bleeding.

[30] A mistrial is the only remedy that would give the Court any satisfaction that a miscarriage of justice will not occur, as such on the Court’s own motion, a mistrial is declared.

R v Shah, 2025 ABKB 527

[September 15, 2025] Charter s.8: Corroboration of Anonymous Tips [Justice Eleanor J. Funk]

AUTHOR’S NOTE: Anonymous Tips and the Limits of Corroboration under R v Debot

Reliance on confidential or anonymous sources imposes additional obligations on police before they can arrest or search based on a tip. The R v Debot framework requires courts to assess whether a tip is compelling, credible, and corroborated.

Where the source is anonymous, the credibility prong cannot be tested — there is no way to assess the reliability of the source itself. As a result, the compelling and corroboration prongs take on greater significance.

A tip is compelling if it contains sufficient detail suggesting first-hand knowledge — not rumour or conjecture. The specificity and insider nature of the information are key.
Corroboration must then meaningfully confirm information that could only have come from someone with direct access or knowledge of the criminal activity. Police verification of generic or publicly observable facts does not elevate the reliability of a conclusory tip.

In this case, the tip merely alleged that the accused was involved in drug trafficking, used rental vehicles, and travelled between Vancouver and Calgary. Police confirmed the travel pattern and use of rentals, but this did nothing to connect the accused to actual possession or trafficking of narcotics.

Because the tip was conclusory and unsupported by meaningful corroboration, it failed to establish reasonable grounds for arrest or search.

Takeaway:
Anonymous tips require careful scrutiny — corroborating broad or publicly accessible details cannot transform a bare allegation into reasonable grounds.

[2] In early 2022, the Alberta Law Enforcement Response Team (ALERT) was involved in a drug investigation of which Mr. Shah was a target. This investigation culminated in the police arresting Mr. Shah, following a traffic stop, on June 5, in Lloydminster, AB. Incident to arrest, the police searched the vehicle Mr. Shah had been driving. From this search, the police located and seized close to half a kilogram of methamphetamine. Mr. Shah now stands charged with possession for the purpose of trafficking, contrary to s 5(2) of the Controlled Drugs and Substances Act, in relation to these drugs.

[3] Mr. Shah brings this application in which he alleges breaches of his Charter ss 8 and 9 rights. He seeks, as a remedy for these alleged breaches, exclusion of the evidence obtained from the search of the vehicle, pursuant to Charter s 24(2).

II. Relevant Law

III. Did the police have reasonable grounds to arrest Mr. Shah?

[14] The police investigation into Mr. Shah started with information from a Crime Stoppers tip and continued with further investigative steps that included database searches, cell phone tracking, physical surveillance, CCTV recordings, and traffic stops.

[15] Where the police rely on outside source information to ground an arrest, the Court must assess “the three C’s” in determining whether the police had the requisite grounds for arrest. That is, the Court must assess whether the tipster information is compelling; whether the tipster is credible; and whether the police corroborated the information through their investigative steps. Weakness in some of these areas may be made up for with strengths in others: R v Debot, [1989] 2 SCR 1140.

A. Was the tipster information compelling?

[16] The Crime Stoppers tip information was that Mr. Shah was involved in drug trafficking of cocaine, methamphetamine, and fentanyl; he used rental vehicles; he travelled between Calgary and Vancouver; and the police “should follow him on weekends”.[Emphasis by PJM]

[17] The Supreme Court in Debot instructed courts, when considering outside source information, to examine whether “the informer’s ‘tip’ contains sufficient detail to ensure it is based on more than mere rumour or gossip” and “whether the informer discloses his or her source or means of knowledge”. Bald conclusory statements cannot support the veracity of the tipster’s information: Debot, at p 1168-9. The degree to which a confidential tip is compelling is a function of its detail: R v Dawad, 2019 SKCA 125 at para 59.[Emphasis by PJM]

[18] Missing in this case is whether the tipster was relaying first-hand information or repeating hearsay from unknown source(s). Also missing are any specifics regarding Mr. Shah. Finally, there is no indication of how recent, or dated, the tipster’s information might be. The fact that Mr. Shah may rent vehicles to drive to and from Vancouver is both innocuous and could well be commonplace knowledge. This all attenuates away from finding the tipster information was compelling: R v Bellerose, 2024 SKCA 104 at para 42.[Emphasis by PJM]

[19] There is additionally no evidence of Mr. Shah having a criminal record for drug related offences. There is no evidence of Mr. Shah having any reputation with the police before this investigation. If such evidence existed, it may add to the compelling nature of the tipster information.

[20] In the end, the tipster information lacked sufficient detail to allow for a conclusion that the tip was more than rumour or gossip. Instead, the information from the Crime Stoppers tip contained bald, conclusory statements that Mr. Shah was involved in drug trafficking. On this, I am unable to conclude that the tipster information was compelling.

B. Was the tipster credible?

[21]….While untested informants cannot be presumed to be credible, concerns about their credibility may be overcome if the tip is sufficiently precise and corroborated: Bellerose at para 46; citing R v Protz, 2020 SKCA 115 at para 54, R v Dhillon, 2016 ONCA 308 at para 33.

[22] As a Crime Stoppers, anonymous, tip, there is no way of assessing the tipster’s credibility. Without evidence of credibility, the second pillar of the Debot analysis is missing.

C. Did the police sufficiently corroborate the tip?

[23] The final Debot factor concerns the degree to which the police corroborated the tipster information through their investigation. At this stage, the police are not required to substantiate every aspect of the tip before acting on it. “So long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence”: Bellerose, at para 49, citing Protz at para 55, quoting Debot at p 1172.

[31] I found the tipster information in this case was not compelling and there is no evidence regarding the tipster’s credibility. Corroboration of weak information, of unknown credibility, requires significantly more by way of subsequent police observations and investigation. Put another way, frailties under the first two Debot factors may be compensated under the final factor where, in an assessment of the whole of the circumstances, the objective evidence is capable of supporting a belief that the arrestee had committed or was about to commit an indictable offence: R v Pavlik, 2019 SKCA 107 at paras 26-27.[Emphasis by PJM]

[32] Corroboration evidence need not confirm illegal activities. While there is no general requirement “to corroborate any criminal activity, or any activity that, although not illegal, could be viewed as reasonably anticipatory to illegal activity”, a lack of this evidence can, depending on the totality of the circumstances, undermine the case for an objectively reasonable grounds for arrest: Bellerose, at para 49, citing Protz, at para 56.[Emphasis by PJM]

[33] Here, the police did not corroborate the tipster’s assertion that Mr. Shah travels to Vancouver in rental cars. Instead, the evidence taken together reveals:

a. Mr. Shah travelled twice to Drayton Valley. During one of those trips, he drove a rental vehicle; during the other, he drove his own vehicle. Mr. Shah briefly met with an unknown male during one of those trips.

b. Mr. Shah’s phone (and by inference, Mr. Shah) travelled from Calgary to Lloydminster, and back, stopping only briefly in Lloydminster. There is no evidence regarding what vehicle was used nor evidence of meetings or exchanges with anyone.

c. Mr. Shah travelled to Edmonton in a vehicle registered to his address. The police observed him stop in an alleyway where a Ford truck also stopped. Mr. Shah exited his vehicle and walked toward the truck. Both vehicles left a minute later.

d. Mr. Shah drove from Calgary to Lloydminster, where the police conducted a traffic stop and arrested him. He was driving a vehicle registered to his home address.[Emphasis by PJM]

[34] Through this surveillance, the police observed no hand-to-hand transactions. They did not observe or seize any drugs or money. They did not identify any person with whom Mr. Shah may have met as being involved in the drug trade. In three of these five trips, there is no evidence of Mr. Shah stopping or meeting with anyone. The police did not observe Mr. Shah carry any items or packages into or out of any of the vehicles he drove.

[35] None of the on-the-ground officers testified to having any prior knowledge that Mr. Shah was involved in the drug trade or criminal activity. They did not testify that Mr. Shah was otherwise known to them. Prior to receiving the Crime Stoppers tip, it would appear that Mr. Shah was completely unknown to the police.

[36] To my mind, the corroborative effect of the police investigation failed to overcome the absence of evidence regarding the tipster’s credibility, the lack of detail and specificity regarding the alleged criminal activity, and the lack of background knowledge on the part of the police linking Mr. Shah to the alleged criminal activity: Pavlik, at para 39.[Emphasis by PJM]

D. Conclusion – did the police have reasonable grounds to arrest Mr. Shah?

[37] As previously explained, the standard required to establish reasonable grounds for an arrest is one of “reasonable probability”.

[39] In light of the weaknesses already identified, Mr. Shah’s travel patterns, including travelling for long distances for only short durations, certainly gives rise to a reasonable suspicion that he was involved in some type of criminal activity. Without more, the evidence as a whole does not objectively give rise to a reasonable probability that Mr. Shah was in possession of cocaine, methamphetamine and / or fentanyl (or any other drugs) when the police arrested him on June 5, 2022.

[40] Without the requisite grounds for arrest, the police detention and arrest of Mr. Shah was arbitrary, contrary to s 9 of the Charter.

[41] After the arrest, the police searched Mr. Shah’s car. Without valid grounds for the arrest, the warrantless search of the vehicle cannot be justified. The search of the vehicle, and seizure of items from it, was unreasonable, contrary to s 8 of the Charter.

[63] Having found the first two lines of inquiry make a compelling case for exclusion, Mr. Shah’s application is granted. The evidence seized incident to the invalid arrest is excluded.

R v Mohamed Mussa, 2025 ABKB 543

[September 19, 2025] Circumstantial Evidence of Identification – Voice Identification by Judge [Justice Eric F. Macklin]

AUTHOR’S NOTE: Blurry Video, Voice Identification, and the Limits of Circumstantial Proof

While trial judges are technically entitled to make identification findings based on blurry video footage or voice recognition of an accused present in court, such findings remain subject to the rigorous demands of circumstantial evidence analysis under R v Villaroman. The question is not whether the accused could be the person depicted or heard — but whether, in light of all the evidence, they must be that person beyond a reasonable doubt.

In this case, a blurry video of a shooter, coupled with remand phone calls in a foreign language linked to a number associated with the accused, failed to meet that standard. Even though the accused’s DNA placed him at the chaotic public scene, and the use of the phone arguably tied him to the shooter, the totality of the evidence left open reasonable alternatives.

Notably, one recorded call referenced “Ali’s birthday,” which did not match the accused’s date of birth (January 1) — a discrepancy the Crown could not explain. [It bears mention that many refugees are assigned January 1 as a default date of birth, but there was no evidence in this case to support such an inference.]

Takeaway:
Identification based on poor-quality video or ambiguous audio must be approached with extreme caution. Under Villaroman, when multiple reasonable explanations remain available — particularly in complex, chaotic settings — conviction cannot follow.

A. Introduction

[1] Hamza Mohamed was first shot in the back by one person and then multiple times by two others. He died. This was a trial about who shot him in the back.

[2] Alinur Mohamed Mussa is charged with one count of manslaughter in the death of Hamza Mohamed contrary to s 236 of the Criminal Code of Canada, one count of aggravated assault on Bashir Hashi Abdi contrary to s 268, one count of aggravated assault on Teasloach Lual, or a person unknown, contrary to s 268, one count of aggravated assault on Basil Martin contrary to s 268, and one count of discharging a firearm with intent to wound contrary to s 244(1)….

[4] Mr. Mohamed was initially shot in the back by a person identified as “Shooter 1”….

[6] There is no eyewitness evidence identifying Shooter 1. It is alleged by the Crown that the constellation of circumstantial evidence leads to only one reasonable inference, being that Shooter 1 was the Accused, Alinur Mohamed Mussa.

C. Brief Summary

[8] During the evening and early morning hours of August 28 and August 29, 2021, a Caribbean dance party was taking place at the Duggan Community Hall in Edmonton. Shortly after 4:00 AM, a person identified as “Shooter 1” stalked Hamza Mohamed, fired 5 shots at him, hit bystanders with the first three and Mr. Mohamed with at least one of the last two. One of the shots hit Mr. Mohamed in the back, paralyzing him. A couple of minutes later, Abdullahi Yalahow began shooting at Mr. Mohamed, who returned fire. Christopher Wilson then attacked Mr. Mohamed, grabbed his gun and fired four shots at him, three of which hit Mr. Mohamed in the head and killed him.

D. Evidence

[9] There was a total of 14 CCTV cameras in the entrance, foyer, main hall and outside the community hall. While the cameras were able to capture much of what transpired in the hall during the party, the quality of the video recordings was affected by the lighting. In areas that were well lit, such as the entrance and the foyer, the video recordings are reasonably clear and in colour. In areas where the lights were mostly dim or off, like in the main hall, the cameras emitted infrared light which only allowed the images to be captured in black and white and without the same degree of clarity as the other video images.

[11] Shooter 1 was initially identified by Detective Thomas Pennie by viewing the CCTV footage on multiple occasions. Once identified, he tracked the shooter’s movements both before and after the shooting. When the video coverage did not show Shooter 1, he located him by the hat and clothes he was wearing, his body size and movement.

[12] The evidence of Detective Pennie was helpful in its approach. However, he is not an expert in interpreting images on a videotape and there is no foundation for accepting his interpretation over that of any other person who views the videotapes. The videotapes and the still photographs taken from them are in evidence. I viewed the videotapes and still photographs many times to make my own observations of what they depicted and draw my own conclusions from the evidence. These are them.

[17] While there is no identifiable image of the face of Shooter1, it is clear that he is the person seen in both the colour images as well as the distorted infrared images as he can be followed from the foyer into the main hall and the changes in clothing colours is apparent.

Phone Calls

[18] Mr. Yalahow and Mr. Wilson were arrested on August 29, 2021, and held in custody at the Edmonton Remand Centre (ERC). Phone records for Mr. Yalahow disclosed that 54 calls were made by him to the number 780-993-0060 between September 19, 2021, and February 3, 2022. That phone number was later linked to the Accused, Mr. Mussa.

[21] On March 9, 2022, the ERC provided audio recordings of the calls by Mr. Yalahow to the number identified to be that of Mr. Mussa.

[22] Mahamed Osman was qualified as an expert witness to provide translations from the Somali language to English and from the English language to Somali. He produced translations he had done of two telephone calls made by Mr. Yalahow to the number later associated with Mr. Mussa. The first was a 20-minute call on September 19, 2021, and the second was a 13- minute call on September 25, 2021. Most of the conversations were in Somali.

[23] Constable Osman did not know Mr. Yalahow and simply referred to him as “Participant 1” in his transcriptions. Constable Osman testified to two instances in the recorded calls where the recipient of the calls identified himself as “Ali” by speaking of himself in the third person. Accordingly, he referred to the recipient of the calls as “Ali” in his transcriptions.

[24] During the two conversations, Mr. Yalahow provided the recipient of the calls with information earlier given to Mr. Yalahow by a police detective during an interview while he was in the hospital following the shootings. The information provided, and the responses from the recipient, suggest that the recipient was at the Duggan Community Hall in the evening and morning in question and was involved in the shootings.

DNA

[25] On August 31, 2021, two cigarette butts were retrieved from the vicinity of the tent where Shooter 1 had been seen smoking and stomping out a cigarette with his foot. They were the only ones submitted for DNA testing and analysis.

[27] After comparing the cigarette butt (KW87) with the Accused’s blood, Pamela Lilly, a DNA expert, opined that Mr. Mussa was a “possible contributor to this mixed profile.” She testified that, based on the Canadian Caucasian population, “it is estimated that 1 in 900 million individuals is a possible contributor to this mixed profile.” Mr. Mussa is not a member of the Canadian Caucasian population. He is Somali.

[28] These figures may be different for a member of the Somali community, but Ms. Lilly testified that the difference would be very small. While different populations would have different numbers, one that would be rare in one would be rare in another.

E. Discussion

1. Causation and Culpability

[46] The Crown has proven beyond a reasonable doubt that Shooter 1 would be guilty of manslaughter, both as a co-principal with the other two shooters, Christopher Wilson and Abdullahi Yalahow, and as an independent actor.

2. Identification

[47] This case turns on the issue of identification. Has the Crown established beyond a reasonable doubt that Alinur Mohamed Mussa was the person who fired the shots that struck Hamza Mohamed, Bashir Hashi Abdi, an unknown person and Basil Martin, and discharged a firearm with intent to wound?

[48] No eyewitness testified to seeing Mr. Mussa with a gun in his hand or fire any shots. The Crown’s case is based solely on circumstantial evidence. Mr. Mussa can only be convicted if I am left with no reasonable doubt that he was the person alleged to be Shooter 1 and, therefore, the person who fired the shots described in each count.

[49] If the circumstantial evidence raises any reasonable inferences inconsistent with the guilt of the accused, he is entitled to be acquitted. The standard of proof beyond a reasonable doubt requires that the guilt of the accused be the only reasonable inference to be drawn from the proven facts: R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 at paras 20, 30; R v Griffin, 2009 SCC 28, [2009] 2 SCR 42 at para 33.

[50] Circumstantial evidence does not have to exclude all other conceivable inferences. Alternative inferences must be reasonable and rational, not just possible. If a suggested alternative interpretation of the circumstances is unreasonable or irrational, there is no requirement to give effect to that alternative simply because it is impossible to exclude it entirely: R v Dipnarine, 2014 ABCA 328 at paras 22-25.

Videotapes

[52] The videotape evidence alone does not allow for a positive identification of Mr. Mussa as the shooter.

[54] The videotape footage of the entrance and foyer at the Duggan Community Hall is reasonably clear and of good quality. It provides clear images of attendees in those areas up to, and after, the shootings. The videotape footage from inside the main hall is not clear or of good quality as it was filmed under infrared light. As stated earlier, however, I am satisfied that the person identified as Shooter 1in the entrance and foyer is the same person identified as Shooter 1 in the main hall. The question remains, however, whether that person is the Accused, Alinur Mohamed Mussa.

Where’s Ali?

[55] While Mr. Yalahow was lying on the floor of the foyer wounded and bleeding from his gunshot wounds, he was approached by a woman who called him “Bishop” and asked, “Where’s Ali”. The Crown suggests that this is a reference to the Accused and “Ali” is short for “Alinur”, the first name of the Accused, with the inference being that he was Shooter 1 and had already left.

[56] There is no evidence that the Accused goes by, or is known by, the name “Ali”. Nor is there any evidence that it is an uncommon name which might limit the number of people to whom it would likely refer and make it more likely that it refers to the Accused.

[57] While Mr. Yalahow lay on the floor, four men came to assist him. They took him outside and transported him to the University of Alberta Hospital. Shooter 1 was not among the four. The Crown says that each of the four appears to be an associate of Mr. Yalahow and Shooter 1, a known associate, is not there, leading again to the inference that Shooter 1 had left.

[58] I find it difficult to draw any inference from this evidence that could assist in identifying Shooter 1 or in finding that Mr. Mussa is Shooter 1.

DNA

[59] Two cigarette butts were seized from the area around the tent in the main hall. There is no doubt from the DNA evidence that one of those butts was handled by Mr. Mussa. He was clearly at the Duggan Community Hall, and in the main hall, during the early morning hours of August 29, 2021, and prior to the shootings.

[60] Shooter 1 was smoking around the area of the tent where the two butts were found. There is video footage showing othersalso smoking in the vicinity of the tent at different times. While I am satisfied that Mr. Mussa had been in that area and smoking at some point, the evidence is capable of reasonable inferences other than Mr. Mussa being the shooter.

[61] While Shooter 1 was seen smoking and stomping out a cigarette, the other butt seized from the scene (KW86) could have been from that cigarette. There was no DNA testing of that cigarette butt. Further, and given the chaos after the shootings began that resulted in a virtual stampede of attendees out the exits, cigarette butts could easily have been kicked around and away from their original locations.

[62] This, of course, does not end the analysis. The question is still whether consideration of all the circumstantial evidence leads to only one inference, being the guilt of the Accused.

ERC Calls

[65] The information provided to the recipient by Mr. Yalahow was given to him by the Detective who interviewed him at the hospital. He advised the recipient that he was shown a photo of the recipient talking to Mr. Yalahow at the hall and told the recipient that the police were looking for him and to change his appearance, avoid the police and stay quiet.

[66] At one point, the recipient says that he “left him laying there” and then later, that “when I hit him, I hit him good…” These two comments suggest that the recipient is speaking of himself having shot Mr. Mohamed. That appears to be the only reasonable inference that can be drawn from them.

[68] There is a direction from Mr. Yalahow near the beginning of the telephone conversation of September 19, 2021, that is somewhat confusing. Mr. Yalahow says to the recipient:

Yeah, listen. Your whole style you have to change.

The way you wear your clothes. Cut your beard.

Everything my n….. This guy wants you. I swear to

God he wants you bad.

[69] I have viewed the videotapes that depict Shooter 1 in each of the areas in and around the community hall many times. I have also viewed the numerous still photos, normal sized and enhanced, of Shooter 1 taken from the video footage. None of the images of Shooter 1 clearly depict him with a beard. This includes the images from the entrance and foyer which are clear and in colour as well as the black and white images from the main hall and the darker images from outside.

[70] While many of the images appear to depict Shooter 1 as clean-shaven, others do seem to show what may be characterized as either a shadow or a short goatee. Regardless, he does not appear to have a beard whose removal could alter the wearer’s appearance.

[71] The direction by Mr. Yalahow to the recipient to cut his beard might have suggested that he was not speaking with Shooter1 in this conversation. However, I do not accept this as a possible inference as I cannot be certain that the shooter did not have a beard, however inconsequential. I find this evidence to be of no value in determining the identity of Shooter 1.

[72] When the discussions between Mr. Yalahow and the recipient of the two calls are heard and read in context, the only reasonable inference to be drawn is that the recipient was not only present at the Duggan Community Hall but was also an active participant in the shootings. As the other shooters have all been identified, the only reasonable inference left is that the recipient of the call was Shooter 1.

Who was using the 780-993-0060 phone?

[75] The phone number was first linked to Mr. Mussa by a call made to EPS on January 18, 2022. The caller identified himself as “Alinur Mohamed Mussa” and, together with other information provided, confirmed his telephone number as 780-993-0060. Approximately 35 minutes later, EPS called Mr. Mussa at the same number. He again identified himself as “Alinur” and confirmed his telephone number as 780-993-0060.

[78] The only reasonable inference to draw from this evidence is that on January 18, 2022, Mr. Mussa had possession of, and was using, a telephone with the number 780-993-0060. While that may also lead to the inference that he had been using that

that is the only reasonable inference that can be drawn for the earlier period, inclusive of the dates of September 19 and September 25, 2021.

[79] I would reiterate the point that the use of the name “Ali” by the recipient of the calls from Mr. Yalahow does not assist as there is no evidence that Mr. Mussa used “Ali” as a shortened version of his first name or as a nickname. He did use his full first name when he called EPS to report his missing vehicle though I recognize that he likely would have been obliged to do so as the registration for that vehicle was in his full name.

[80] One of the calls made by Mr. Yalahow to 780-993-0060 was on October 9, 2021. During that call, the recipient stated that “tomorrow… it’s my birthday… I’m going to step out…” The day following that telephone call was October 10, 2021.

[81] According to the Witness Statement Form filed with EPS, Mr. Mussa’s birthday is January 1, 1988. His birthday is confirmed by certain business records introduced into evidence. Those records include 11 photographs of the Accused taken between February 2016 and June 2022. Each of the photographs is accompanied by information which includes the full name of the Accused, the date the photograph was taken and the Accused’s birthday of January 1, 1988. There is no evidence to suggest that his birthday was any day other than January 1. In particular, there is no evidence to suggest that his actual birthday may have been October 10.

[83] The evidence relating to the birthday of the phone call recipient on October 9, 2021, allows for a reasonable inference to be drawn that he was not speaking to Mr. Mussa on that occasion. There is also evidence from the ERC phone records that other persons participated in calls made by Mr. Yalahow to that number on October 18, December 3 and December 17, 2021.[Emphasis by PJM]

[84] All of this evidence leads to a reasonable inference that other person or persons had access to the phone with the number 780-993-0060 and that Mr. Yalahow may not have been speaking to Mr. Mussa on September 19 or September 25, 2021.[Emphasis by PJM]

[85] It had been suggested that I could note the similarities between Mr. Mussa’s voice from his conversations with EPS and the voice of the recipient of the calls from Mr. Yalahow. While the voices in the calls may seem similar, the Court is not sufficiently competent in the field of voice recognition and comparison to say they are identical, particularly when much of the conversations are in Somali. An expert would be required to do so.[Emphasis by PJM]

Conclusion on Identification

[87] The videotape evidence does not allow for a positive identification of Mr. Mussa as Shooter 1. The reference to the name “Ali” by the woman in the foyer after the shootings and by the call recipient from Mr. Yalahow does not lead only to the reasonable inference that the individual referred to is Mr. Mussa.

[88] The DNA evidence clearly puts Mr. Mussa at the scene of the shootings on the morning in question. It does not, however, lead only to the inference that the cigarette butt containing the Accused’s DNA was from the cigarette handled by Shooter 1. Shooter 1 may have handled the other recovered cigarette butt or another butt that had been kicked away or otherwise removed from the area during the stampede for the exits.

[89] The ERC calls by Mr. Yalahow were made to a phone used by the Accused. However, it is reasonable to infer that others had access to that phone and the recipient or recipients of the calls on September 19, September 25 and October 9, 2021, may not have included the Accused.

[90] These other possible inferences to draw from the evidence are not unreasonable or irrational.

F. Conclusion

[91] The circumstantial evidence in this case does raise inferences consistent with Alinur Mohamed Mussa being the one who shot Hamza Mohamed and the other three individuals. However, the circumstantial evidence also raises reasonable inferences inconsistent with Mr. Mussa being the shooter.

[92] The standard of proof beyond a reasonable doubt requires that the guilt of Mr. Mussa be the only reasonable inference to be drawn from the proven facts. It is not. Mr. Mussa is entitled to be acquitted. I find him not guilty on each of the five counts.

Also on the Blog

The Defence Toolkit – October 11, 2025: The Right to Full Cross-Examination

This week's top three summaries: R v IMB, 2025 ONCA 678: #cross & #demeanour, R v Daignault, 2025 ABCA 328: #cross & Vetrovec, R v Penner,...

The Defence Toolkit – October 4, 2025: Police Agents

This week's top three summaries: R v Pham, 2025 BCCA 324: police #agent, R v KWP, 2025 ABCA 312: judge #propensity, R v IJM, 2025 ABCA 311: 271...

The Defence Toolkit – September 20, 2025: Common Unlawful Purpose

This week's top three summaries: R v Mohamed, 2025 ONCA 611: #parties 21(2), R v Hambleton, 2025 ONSC 5061: #bias appeals, R v JC, 2025 ABCJ 120:...



About Us

Working through your complex trial materials

Our lawyers have been litigating criminal trials and appeals for over 16 years in courtrooms throughout Canada. We can be of assistance to your practice. Whether you are looking for an appeal referral or some help with a complex written argument, our firm may be able to help. Our firm provides the following services available to other lawyers for referrals or contract work:

Please review the rest of the website to see if our services are right for you.

Pawel Milczarek, Appellate Lawyer in Calgary, AB.

Written By Pawel Milczarek

Pawel is a partner at Sitar & Milczarek. When he’s not litigating he writes the Defence Toolkit blog.

The Defence Toolkit – July 5, 2025: A Flashback

This week's top three summaries: R v Singh, 2025 ONCA 460: #omissions and #flashbacks, R v OW, 2025 ONSC 2922: #exclusive opportunity ID, R v Grant and Scott, 2025 ONSC 3513: s.9 #grounds for arrest R v Singh, 2025 ONCA 460 [June 25, 2025] Reliability: Omissions to...

The Defence Toolkit – April 15, 2023

This week's top three summaries: R v Spicer, 2023 ONCA 232: not #stereotyping, R v Blatchford, 2023 ABKB 193: circumstantial #ID, and R v Zamora, 2023 ONSC 2169: innocent #dupe This week's top case deals with an issue to that comes up often in sexual assault trials....

The Defence Toolkit – March 11, 2023

This week's top three summaries: R v SS, 2023 ONCA 130: s.8 REP in #ambulance, R v Metzger, 2023 SCC 5: #circumstantial ID, and R v Brar, 2023 ABCA 63: #circumstantial possession. This week's top case is an impaired driving decision. For great general reference on the...