Defence counsel said an appeal is not out of the question after a Stoney Nakoda youth was found guilty of shooting German tourist Horst Stewin in the head August 2018.
The 17-year-old, who cannot be named under the Youth Criminal Justice Act, was found guilty of aggravated assault and discharging a weapon with intent to do harm on Friday (Oct. 18).
"I'm actually quite disappointed," said defence lawyer Balfour Der after the decision. "I thought there was plenty of reasonable doubt in this case ... his grandmother is quite upset. He's a young guy, he's been in jail for this [and] he is turning 18 in a week or two. They had other plans for the 18th birthday rather than being in jail."
Eyewitness testimony and social media messages led Provincial Court Judge George Gaschler to a guilty verdict, he explained in Calgary's Court of Queen Bench.
"There was a significant amount of testimony to consider," Judge Gaschler said.
Several Facebook messenger messages were entered into evidence including screenshots where the accused wrote, "Cops looking for me cause I shot somebody in the head ... That was me."
The accused youth, who was 16 at the time of the Aug. 2, 2018 shooting, looked straight ahead as the judge read his decision out in the courtroom.
Citing eyewitness testimony and evidence from social media that indicated the accused’s guilt, Judge Gaschler said the youth was "the shooter beyond a reasonable doubt."
Originally facing 14 charges, the Crown withdrew nine of the charges, including attempted murder, before the trial began, citing the unlikelihood of a conviction. The case continued against the youth with charges of aggravated assault, assault and three firearms charges including recklessly firing a firearm and discharging a firearm with intent.
In the written decision Judge Gaschler stated in respect to count one, of discharging a firearm with intent to wound, maim, disfigure or endanger the life of Stewin, the charge was dismissed. The two other charges were also stayed due to the similarity of the charges the accused was found guilty of.
Der requested a Gladue report, a pre-sentencing report that takes offenders Indigenous background into consideration, before sentencing. Arguments from Crown and defence on sentencing are set for February 2020.
After the trial Der said an appeal is not out of the question.
"From my perspective, as I said to the judge in closing arguments, I don't know how we can base a case on that which requires a solid foundation [and] in my view there wasn't a solid foundation," Der said.
Stewin was driving along Highway 1A in 2018 with his wife, his son and his son's girlfriend, during his 60th birthday trip to Canada, when a vehicle pulled up alongside the family.
Shot in the head during the drive-by shooting, approximately one kilometre west of the Goodstoney Rodeo Centre, Stewin lost control of the vehicle and ended up in the ditch off the highway when his family realized what had happened and called 911.
“First, I thought it was exploding, like the wheel exploded … and then I looked at my dad and he was sitting like with his head down and I thought, what the hell,” Daniel Stewin said in his interview with police.
The victim's son explained how he tried to steer and brake the vehicle from the passenger's seat, while his mother and girlfriend were shouting and crying in the back seat, but he couldn’t regain control of the vehicle.
“My mom said 'he got shot, he got shot,' and then I saw, at that moment, I first saw that there was a shooting, [a bullet] hole in the glass,” he said.
Spending two weeks in the Foothills Medical Centre before being transported back to Germany where brain surgeons removed eight bullet fragments from his head, Stewin is now paralyzed on his right side.
During the trial, Prosecutor Dane Rolfe noted Stewin had to learn how to write with his left hand, faces memory issues and attends therapy three times a week for speech and writing.
“His prognosis for a full recovery is guarded, at best,” Rolfe said.
Passengers who were in the vehicle with the accused testified during the first week of the trial to the level of impairment of the group that day and the potential explanation of mistaken identity for why a gun was fired at the other vehicle.
The first witness told the Judge the group was originally just going for a drive to pick up a cellphone when the shooting occurred.
"I was scared. I didn't know what to do," said the 23-year-old female from Stoney Nakoda.
She told the court, the driver of the vehicle, her cousin, had instructed the youth to shoot after mistakenly identifying the driver of the black SUV as someone from the Nation.
“All I remember is [my cousin] tell him to shoot and [the youth] said nothing,” she said.
When asked by Crown counsel what happened, she said, “Obviously he shot him.”
“I wasn’t even watching, I just shut my eyes and covered myself. Would you want to see someone shooting somebody,” she said.
Under cross-examination, Der asked if the shot was fired through her window, as she was sitting on the passenger side in the backseat and the youth was on the driver’s side backseat, and she said she couldn't remember.
At the end of her testimony, when questioned by defence again, the witness said several times that she saw the accused shoot the gun.
During testimony by the second witness, the driver of the vehicle explained the group was drinking vodka and doing methamphetamine before the shooting occurred.
The driver admitted to being "more buzzed" than usual and said he was all over the road before trying to pass the black SUV.
It was when he was passing on the left that he testified he heard a bang.
“It was a shot,” he said.
“It came from the backseat right behind me.”
The witness said he wanted to stop, but he felt a gun barrel on the back of his head, so he kept driving.
When cross-examined by defence, the witness admitted his memory was not reliable due to intoxication.
The Stewin family was also set to testify during the first week of the trial by CCTV from Germany, but due to translator issues, their roadside statements were entered as evidence instead.
In the roadside statements, the family said they were looking for a ranch and did not realize they were on Stoney Nakoda First Nation lands. Stewin's wife, Ulrike described the shooter as Caucasian, between 30 to 35 years old and said the vehicle was an older, black, square car. In Daniel's roadside statement, he said he did not see the shooter, but described the vehicle as a black SUV.
The youth did not testify in his own defence.
Defence highlighted the inconsistency of the eyewitness statements, including the Stewin family’s roadside statements.
During closing arguments, Crown prosecutor Rolfe said it was a “clear example of someone being honest, but just wrong in a stressful situation.”
Der said his client has taken this whole trial and decision "in stride."
"I'm not sure what will happen for sentencing. We've asked for a number of reports to be done – to go through his background, to go through his psychological, psychiatric makeup," Der said after the decision.
"I felt the defence case was quite strong, so that's where my head is at right now. I'll read the judge's decision and see how he came to his conclusions and if there is anything there, we will appeal and if there isn't, we won't."