Manhunt for Mcleod and Schmegelsky: Innocence and Post Offence Conduct

manhunt: mcleod and schmegelsky

Headlining the news over the last couple of days in Canada is the manhunt for 19 year old Kam Mcleod and 18 year old Bryer Schmegelsky.  Canada Wide warrants have issued for both on charges of second degree murder in relation to the shooting deaths of Lucas Fowler and Chyna Dees in British Columbia.  A third man, Leonard Dyck has also been identified as potentially connected with these tragic killings.

This post is not to write about the specifics of the manhunt or focus on the news reports. Other than to say that it appears the world is certainly less bright without Mr. Fowler, Ms. Dees and Mr. Dyck, I offer no musings on the incidents; rather, I prefer to focus on a couple of important legal principles that apply to both Mr. Mcleod and Mr. Schmegelsky: the presumption of innocence and post offence conduct.

The trajectory of the investigation in relation to these two teens has transitioned over the last few days. Initially they were “missing persons”. This changed to “persons of interest”, evolving to “suspects”, leading to a more dire designation, “wanted” on a Canada Wide Warrant for second degree murder.  CBC reported this morning that the two teens are to be considered “armed and dangerous”.

warrants for arrest

In Canada, a warrant for arrest is territorial -- effectively designated by radius.  Some warrants are provincial -- that is, empowered within the jurisdiction of the Province in which the warrant was issued.  This means that law enforcement in one Province may not have jurisdiction to arrest a person who has a warrant active in a different Province.  In Alberta, it is not unusual for a warrant to be “Western Canada Wide”; meaning that a peace officer has the lawful authority to arrest the person subject to the warrant in any Western Province (British Columbia, Alberta, Saskatchewan and Manitoba).  “Canada Wide Warrant” means that the subject of the warrant is arrestable anywhere in the Country.  Using Mr. Mcleod and Mr. Schmegelsky as an example, it appears they are subject to a Canada Wide warrant and thus can be arrested anywhere in the Country.

presumption of innocence

It was last reported that the teens were spotted in the Northern Manitoba town of Gillam.  Not surprisingly, residents are on edge. 

Looking from the outside-in, this is certainly an odd case. As reported in the media, neither of the teens has a criminal record. Neither of them is known for violence, drug abuse or causing trouble.  There are many questions revolving around these two young men.  Many of these questions are likely to go unanswered -- at least in the short term.

However, this manhunt provides a good opportunity to be reminded about the presumption of innocence. 

 As the Supreme Court stated in R. v. St-Onge Lamoureux, {2012] S.C.J. No. 57 at paragraph 140:

The presumption of innocence, guaranteed by s. 11(d) of the Charter, is fundamental to our understanding of the criminal process. As Cory J. put it in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27: "If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law."

The presumption of innocence means that all persons accused of a crime, including Mr. Mcleod and Mr. Schmegelsky are “presumed innocent until proven guilty”. This means that as we watch this incident unfold in the news, both of these teens should be thought of as “innocent”. 

It’s easy to jump to conclusions about their guilt. After all, the police have labeled them “armed and dangerous”. Three people have been tragically killed in British Columbia.  The truck they started their journey with was located “burned out” in British Columbia and a different vehicle they were alleged to be in was found burned out in Northern Manitoba.  The teens have clearly departed the various alleged crime scenes, travelling a considerable distance from British Columbia, through Alberta and Saskatchewan to Manitoba.  Despite the damning inferences that one might be inclined to draw from all of this, it is important to remember that they might have an innocent explanation. Indeed, both Kam Mcleod and Bryer Schmegelsky could be actually innocent.

For present purposes, their lack of criminal history or trouble supports the need for us to have a hardened mind, capable of giving them the benefit of the doubt until such time as we know more. 

Ultimately, it may be the case that their conduct will be adjudicated on by a judge or jury in British Columbia.  With this is in mind, it is important to not merely pay lip service to the legal principle, “presumed innocent” and perhaps eventually “proof beyond a reasonable doubt” but to embrace these important concepts with an open and agile mind. In Canada, people have been wrongly convicted and very likely continue to be wrongly convicted.

post offence conduct

A second issue surrounding the manhunt for Mr. Mcleod and Mr. Schmegelsky revolves around news reports of what appears to be “post offence conduct”.  In Canadian criminal law “post offence conduct” is sometimes also referred to as “after-the-fact conduct”.  It has been discussed in many cases, including by the Supreme Court of Canada in R. v. White, [2011] 1 S.C.R. 43.  White reminds us that “post offence conduct” is evidence of limited admissibility:

In R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, Watt J.A. observed that "[e]vidence of after-the-fact conduct is typical of many items of evidence adduced in a criminal trial: it is evidence of limited admissibility. The trier of fact may use this evidence for one or more purposes but not for another or others.

In R. v. Peavoy [1997] O.J. No. 2788 Weiler J.A., at para 26, comprehensively defined post offence conduct in the following terms:

• 26 Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person. The after-the-fact conduct is said to indicate an awareness on the part of the accused person that he or she has acted unlawfully and without a valid defence for the conduct in question. It can only be used by the trier of fact in this manner if any innocent explanation for the conduct is rejected. That explanation may be expressly stated in the evidence, such as when the accused testifies, or it may arise from the trier of fact's appreciation of human nature and how people react to unusual and stressful situations. It is for the trier of fact to determine what inference, if any, should be drawn from the evidence.

• 31 The conduct of an accused person after the event in issue may also, depending on the circumstances of the case, have some evidentiary value in rebutting defences put forward by an accused which are based on an alleged absence of the required culpable mental state: R. v. Wiltse, supra, at p. 384 (honest but mistaken belief deceased was already dead); R. v. Jenkins (1996), 29 O.R. (3d) 30 at 63 (Ont. C.A.) (unaware caused injury to the deceased), leave to appeal to the Supreme Court refused February 27, 1997; R. v. Carpenter (1993), 83 C.C.C. (3d) 193 (Ont. C.A.); R. v. Mulligan, a decision of this court released May 29, 1997 at p. 16, (intoxication), and; R. v. Jacquard (1997), 113 C.C.C. (3d) 1 (S.C.C) (mental disorder). In these cases, the after-the-fact conduct is potentially relevant because it is circumstantial evidence with respect to the accused's state of mind. In other words the conduct is not consistent with the actions of a person who had the state of mind now alleged at trial. If the accused's explanation of the after-the-fact conduct is rejected by the jury, it is evidence from which an inference may be drawn that the accused person did have the requisite cognitive mental state, or level of mental awareness, to commit the crime alleged. (Emphasis added)

With respect to the manhunt for Mcleod and Schmegelsky, “post offence conduct” or “after the fact conduct” may have application. To that end, the suspects may have intentionally destroyed evidence by burning a truck and SUV. They may have fled the Province of British Columbia, putting substantial distance between themselves and the alleged crime scenes.  These are examples of potential “post offence conduct”. 

That said, it is important to keep in mind that both teens may have a perfectly innocent explanation for their burned out vehicle; for departing British Columbia and travelling a substantial distance.  At the end of the day, all we know about as observers watching the news is information that police are prepared to divulge and that the media is prepared to report.  I suggest that as viewers and readers, we are in an informational vacuum and as such, we should not jump to conclusions.

criminal defence lawyers are generally good at not jumping to conclusions

David Chow is a veteran criminal defence lawyer with his main office located in Calgary, Alberta. David has run hundreds of trials, examined thousands of witnesses and successfully defended a multitude of clients since he was called to the Alberta bar in 2003. He has learned over the years never to jump to conclusions.  David Chow is a former Crown prosecutor. Today he is a Calgary DUI lawyer, Calgary drug lawyer and full service Calgary criminal lawyer of choice. 

If you have been charged with a homicide, firearms offence or any other crime, call 403.452.8018 for a free consultation.