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Christian Joffre Ouellette set out to buy a handgun and ammunition to kill Colin Reitberger. He bragged about his intentions to his underworld friends until he finally carried out the shooting in a Superstore parking lot in Calgary on May 21, 2017. For good measure, he also shot Reitberger’s passenger, Anees Amr as that victim tried to run from the murder scene.
Among Reitberger’s circle of friends was Blais Thomas Delaire. Delaire knew Reitberger was a hothead and the two men had several conversations about the planned killing before it happened. Unfortunately, Delaire also repeated some of those conversations with another friend who was wearing a wire and working as a police agent.
At trial, Delaire’s recorded words were used not only to help convict Reitberger of first-degree murder (and second-degree murder in the death of Amr) by demonstrating planning and intention; they also showed his own intention to goad Reitberger into how to accomplish his goal in a clandestine manner. The Crown argued and the trial judge agreed that Delaire’s own words supported the charge of manslaughter brought against him for abetting Reitberger in the killing. Both men were convicted on April 3, 2020, and two weeks later Delaire was sentenced to eight years’ imprisonment less a 74-day credit.
Delaire tried for bail pending appeal in October 2020 but was denied (R. v. Delaire 2020 ABCA 380). Both Delaire and Oullette appealed their convictions before a three-judge panel held in February 2022. Not surprisingly, Reitberger’s conviction was upheld. Then the court had to decide if the trial judge erred in the interpretation of the evidence used to convict Delaire.
The Crown did not tender any direct evidence of conversations between the two appellants. Instead, the evidence adduced was the recording made of the dialogue with the police agent. This, the Crown argued, was circumstantial evidence establishing both the actus reus and the mens rea of abetting under s. 21 (1)(c) of the Criminal Code.
The Appeal Court then undertook a careful analysis of what constitutes the actus reus of abetting. It relied on the definition found in the Supreme Court of Canada decision of R. v. Greyeyes [1997] 2 S.C.R. 825: “encouraging, instigating, promoting or procuring the crime to be committed.” Further, the court relied on an Ontario Appeal decision, R. v. Dooley 2009 ONCA 910, where it was held that the conduct constituting aiding or abetting had to show a party’s desire to associate itself with the principal’s act.
The transcript of the conversation was ambiguous. The recording had Delaire making comments that included the words: “I, I actually told Christian not to do it. ‘Cause Christian went over and told everyone that he’s gonna shoot this guy …” or “I was like, ‘dude, don’t do it. I was like, ‘if you’re gonna do it, I was like, ‘be smart about it.’”
Unlike at trial, the Alberta Court of Appeal understood there could be an interpretation that upheld Delaire’s position that he did not counsel Reitberger into committing murders. The court set aside the manslaughter conviction and entered an acquittal.
Too often we tend to allow our bias against prisoners or those we perceive to be members of a criminal underclass to interfere what should be a fair and honest interpretation of their words. If there is doubt, let it favour the accused.
This is a time when our institutions, especially the courts, are under heavy criticism. Whether Delaire counselled Reitberger may be open to question. The Crown was not able to make its case beyond a reasonable doubt. Maybe a guilty man got away free (albeit serving time up to the appeal decision) but in the end, our system of justice demonstrated it does work in practice as the theory suggests it should.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.
