R v Church, 2016 ABQB 169

Court of Queen ’ s Bench of Alberta Citation: R v Church, 2016 ABQB 169 Date: 20160321 Docket: 141417915Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Wayne D. Church Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] Wayne D. Church is charged with a series of offences relating to an incident alleged to have taken place in Banff, Alberta on April 29, 2012.

These offences include robbery, unlawful confinement, kidnapping, assault with a weapon, and extortion. [ 2 ] The trial of this matter took place on December 7-10, 2015. At the conclusion of the evidence and the oral submissions of

counsel, the matter was adjourned to December 18, 2015 for decision. On that date, counsel were invited to provide the Court with written submissions relating to the application of s. 21 of the Criminal Code . The matter was adjourned to January 15, 2016, to set a date for decision and then subsequently adjourned to March 22, 2016 at 9:00 a.m. These are my reasons for decision. Facts [ 3 ] The complainant, David Armstrong, and the Accused have been acquainted since 1985. At one point, Mr. Armstrong was in a common-law relationship with the Accused’s sister, Sandra.

All three worked together at Bumpers, a restaurant in Banff. [ 4 ] In 1997, Mr. Armstrong and his business partner, Peter Dufus, were in the process of constructing a duplex in Canmore. Mr. Armstrong served as the general contractor for the project. The construction phase of the project was financed through a building mortgage that the partners planned to convert to a long-term mortgage once the duplex was completed. [ 5 ] They approached the Accused in late 1997 to seek his financial assistance. On December 1, 1997, they both signed a promissory note for the principal sum of $20,000 at an interest rate of 7.9%.

The Note called for monthly payments of $140 on the first of each month until December 1, 1998, at which point the principal sum and accrued interest was due and payable in full. [ 6 ] The evidence of Mr. Armstrong is that the amount of the loan was $36,000, and that he and Mr. Dufus were each responsible for half of that amount. He provided no documentary evidence to support this increased amount. He believed that there must have been another note, though has no recollection of ever signing a second promissory note.

He testified that the plan was to obtain a conventional mortgage once the duplex was completed, to pay back the Accused as much as they could from the mortgage funds, and to cover any shortfall as personal loans. Mr. Armstrong believed that there would be sufficient funds from the mortgage to fully repay the Accused. [ 7 ] Laurentian Financial, the holder of the builder’s mortgage, foreclosed in early 1999, at a time when the duplex was 60-70% complete. The Accused was informed about the foreclosure in the spring of 1999, and may have been approached for additional financing at the time of the foreclosure. Mr.

Armstrong never told him that he was not going to be able to repay the loan. Indeed, Mr. Armstrong has never repaid any of the loan, and is unaware as to whether or not Mr. Dufus has repaid any portion of the loan. [ 8 ] Mr. Armstrong filed for personal bankruptcy in late 2002, and was discharged in April 2004. His last conversation with the Accused regarding the loan took place in 2002, at which time he told him that he would try and take care of the loan after he cleared the bankruptcy proceedings. In 2007, Mr.

Armstrong heard that the Accused was going around town telling people not to hire him and that he had beaten up Mr. Armstrong’s sister while they were together. At this point, he determined that he was not going to pay back the loan. [ 9 ] In cross-examination, Mr. Armstrong agreed that he met the Accused on the street in February 2012 and told him to “fuck off” in relation to something the Accused said to him. [ 10 ] On Sunday, April 29, 2012, at approximately 4:45 p.m., Mr.

Armstrong was about a half block away from his residence walking to work at the Sidestreet Liquor Store in Banff for his regular 5:00 p.m. shift. It was a bright sunny day and he was wearing a t- shirt and carrying a sweater. When he was about 10-15 feet away, two masked man wearing hats and bandanas over their faces, jumped out of a white Chevy van parked ahead of him on Beaver Street. He attempted to run away, but they caught him and wrestled him into the van, all within the space of 30-40 seconds. He screamed for help and struggled to get away, but was unsuccessful.

There was no conversation at the time, though he later heard the men speak Spanish to one another. One of the men was carrying a black-handled aluminum baseball bat. While the bat was never used, Mr. Armstrong believed it was being carried to intimidate him. He lost his sunglasses and cellphone during the initial struggle. [ 11 ] The van had two barn-type doors and the inside was entirely covered with the type of plastic used for a residential vapour barrier. While the base colour of the van was white, it had a couple of stripes, and a raised roof.

The interior of the van was baby blue and had two rows of seats behind the driver/passenger seats. He believed that he had seen the van before and was the same type of van as one owned by the Accused, though he had never previously been inside the van. He identified a series of six photographs (Exhibit #8) of a van located in the driveway of the Accused on December 3, 2012, though noted that it was hard to identify the interior given that it was completely covered in plastic at the time of the incident. Mr.

Armstrong assumed that the plastic was to cover up any DNA that he might otherwise leave in the vehicle. [ 12 ] Once inside the van, he was pushed down on the floor between the first and second row of seats. One of the two men restrained his legs, while the other man restrained his upper body and held his head to the floor. One of them told him to calm down. [ 13 ] The Accused was sitting inside the van when Mr. Armstrong entered. The Accused was wearing jeans and a greyish shirt and was not similarly disguised as the other two men. He told Mr.

Armstrong to calm down, that he was going to make it to work, though he was going to be late. [ 14 ] The driver of the van, a third masked man, drove the van to a somewhat isolated area at the north end of Banff, across the railway tracks in the compound area. The drive took approximately 5 minutes. During the drive, the Accused gave instructions to the driver. The van was parked and the two masked men dragged Mr. Armstrong out of the van. Before he was completely out of the van, one of the men taped his hands together in front of him using yellow duct tape. The larger of the two masked men reached into Mr.

Armstrong’s pocket and stole approximately $200 that he won the previous evening playing the slot machines. [ 15 ] The Accused exited the van and gave Mr. Armstrong three ultimatums: he could either pay him; pick up and run, in which case his associates would find him anywhere in the country; or go to the RCMP and not make it to court. The Accused demanded monthly payments of $1,000 until the loan was paid off. According to Mr. Armstrong, the Accused was very angry. [ 16 ] Mr. Armstrong sustained scrapes, scuffs and some cuts as a result of the incident.

The two masked men roughed him up once he was outside the van and his t-shirt came off during the scuffle. The police photographed him that same evening. These photographs were entered as Exhibit # 1 and show scrapes and rash-like marks on his face and upper chest, light bruising on his back and, in

particular, a large scrape with some dried blood next to his left ear. [ 17 ] Mr. Armstrong felt scared, threatened and shaken following the incident and believed that the Accused would follow through with his threats. When they departed, he was told to wait a few minutes before leaving. He retrieved his t-shirt and sweater and then walked back to the location on Beaver Street where he had been dragged into the van in search of his lost sunglasses and cellphone. When he was unable to locate either, he walked to work, arriving at approximately 5:30 p.m.

He told his work colleague, Ian Bennett, that he had car troubles as the reason why he was late for work. [ 18 ] On the afternoon of April 29, 2012, shortly before 5:00 p.m., Mark Davies contacted the police to advise of a possible assault/kidnapping on Beaver Street. Mr. Davies was not able to provide details as to what he saw as he was quite some distance away. However, he did advise than he heard yelling and screaming and a man being dragged into a van. Mr. Davies was not called as a witness during the trial. [ 19 ] When the police arrived at the scene, Mr.

Davies pointed out a cellphone, a pair of sunglasses and a toque that he located. While the police were at the scene, the police answered the cellphone on two occasions and determined that the caller was Ian Bennett at the Southside Liquor Store, inquiring about the whereabouts of Mr. Armstrong who was scheduled to relieve him at 5:00 p.m. The cellphone and sunglasses were returned to Mr. Armstrong later that same day when Cst. Shala attended the store to speak to Mr. Armstrong. The toque was seized and entered as Exhibit #4. [ 20 ] Ian Bennett gave evidence at the trial. He testified that when he called Mr.

Armstrong shortly after 5:00 p.m. to find out where he was, the RCMP answered and told him that they were looking for Mr. Armstrong. When Mr. Armstrong arrived at work at approximately 5:40 p.m., he told Mr. Bennett that he had been jumped on his way to work. According to Mr. Bennett, Mr. Armstrong was a little flustered and seemed frustrated or exasperated. He noticed a small scrape on one of his cheeks. Mr. Armstrong told him that it would be better if he (Mr. Bennett) did not know what happened. [ 21 ] The police arrived at the liquor store a few minutes later. Mr.

Armstrong readily acknowledged in cross-examination that he was uncooperative with the police and told Cst. Shala “a bunch of lies” so that they would leave and stop asking him questions about what had happened. He reported at that time that he had been the victim of a kidnapping and that he had been jumped by four unknown males in a white, newer model, van in relation to an old drug debt. Mr. Armstrong told Cst. Shala that he had previously been involved in dealing cocaine with South American organized crime, though he had stopped dealing cocaine many years ago.

The males sounded Spanish and one carried an aluminum baseball bat that was never used. The interior of the van was entirely covered in plastic. He told Cst. Shala that two of the men sat on top of him while he was driven to the compound area in Banff and eventually let go. He reported that he was going to try and take care of the debt on his own and that would be the end of it. He specifically told Cst. Shala to write on the file that the victim does not want to cooperate and to close the file. He testified that he misled Cst. Shala in order to get him to leave him alone.

He was told that the investigation would continue even if he would not cooperate. [ 22 ] Mr. Armstrong continued to be uncooperative when Cst. Shala returned later that same evening and returned his sunglasses and cellphone. Mr. Armstrong declined to provide a statement at that time. The police attended a third time that same evening when Cst. Shala attended with a plain clothes officer, but he refused to provide any further information. [ 23 ] The police attempted to call Mr. Armstrong the following day at his residence. When he did not answer the phone (he stated that he was in the shower at the time), Cst.

Shala and a different plain-clothes officer came to his residence. He agreed to attend the police station the following day to view a van that the police had seized. He did, in fact, attend the police station the following day, but only after being contacted by telephone and reminded of his earlier agreement to do so. He told the police that the van they had seized was not the van involved in the kidnapping.

He admitted that he was quite hostile with the police during this meeting; that he again refused to provide a statement, or to enter the RCMP detachment; and walked away while the police were still talking to him as he felt they were trying to pressure him. [ 24 ] Approximately two or three weeks after the incident, the Accused came to the Sidestreet Liquor Store while Mr. Armstrong was working. He checked the office to see if there was anyone else in the store and then told Mr. Armstrong that he had to pay. He returned approximately two weeks later, though Mr.

Armstrong does not recall the conversation during this encounter. [ 25 ] Sometime in May 2012, Greg Dickinson attended the Sidestreet Liquor store to speak to Mr. Armstrong about the loan. The Accused had asked him if he was interested in earning $500 to pick up an envelope. The Accused told him that Mr. Armstrong owed him a bunch of money. A week or so later, the Accused gave him a call and asked him to meet him at the Sun Dance Mall, where he gave him the $500 to go and pick up the envelope. The Accused told him that Mr. Armstrong owed money, around $38,000, for his home down payment. He told Mr.

Dickinson to ask Mr. Armstrong politely for the envelope and not to embarrass him by asking him in front of other customers. [ 26 ] Mr. Dickinson went to the liquor store and told Mr. Armstrong that the Accused sent him to pick up an envelope. He could tell that Mr. Armstrong was scared. Mr. Armstrong told him that he did not have the envelope, but would have it the next week. Mr. Armstrong assumed that Mr. Dickinson had been sent to intimidate him due to his physical stature. Mr. Dickinson, testified that he is 6’ 11” and weighed approximately 270 lbs. at the time. Mr.

Armstrong told him that he was trying to get a bank loan to repay the Accused. Mr. Dickinson replied that he would tell the Accused about the bank loan and then left the store. [ 27 ] When Mr. Dickinson reported back to the Accused a few hours later he told him that the Mr. Armstrong was scared. This conversation took place down by the river about three blocks from the liquor store. He testified: Q: Okay. And what was his demeanour like at the second conversation when you had told him about Mr. Armstrong seeming scared? How did the accused react at that time?

A: I don’t know how to - - like he kind of smirked a little bit and it was very apparent to me that there was more to the story. So I said, what’s going on? And Wayne told me everything he did.

Q: Okay, what did the accused say to you? A: He said he hired a few guys out of Calgary to come out. They taped up his van with plastic and everything, picked him up on Beaver Street or somethin’ and took him for a ride around Banff. And dropped him off somewhere out near the Buffalo Paddock or something like that. And beat on him and, I don’t know, just extorted him; right? [ 28 ] According to Mr. Dickinson, the Accused also told him they used his van to pick up Mr. Armstrong; that they had “thumped on him” and took the money he had in his possession at the time. Mr.

Dickinson tried to return the $500 to the Accused, telling him that he was not to use him for this sort of task anymore. [ 29 ] Mr. Armstrong conceded in cross-examination that he never told the police about the involvement of Greg Dickinson. He stated that he did not want to get Mr. Dickinson involved; that he was sure the Accused had not told Dickinson the whole story before sending him to the liquor store to try and collect on the debt; that Mr. Dickinson has had his problems in the past; and that he has done a good job of cleaning himself up and getting his life back on track. [ 30 ] Cst.

Shala returned to speak to Mr. Armstrong on May 15, 2012. Armstrong again refused to speak to him about the incident. On June 4, 2012, Cst. Shala advised Mr. Armstrong that he was giving him one final opportunity to provide a statement or else the police would conclude their file. At that time, Mr. Armstrong told Cst. Shala that he had decided he did want to provide a statement. He identified the Accused at that time as being involved in the April 29 th incident. Mr. Armstrong provided a full statement to the police the following day, June 5, 2012. He provided two further statements on December 4, 2012.

At some point he provided the police with a copy of the DVD depicting the Accused’s visit to the store on December 3, 2012. [ 31 ] On December 3, 2012, the Accused entered the Sidestreet Liquor store with another male that Mr. Armstrong recognized from an earlier encounter at the end of July or early August 2012. On that occasion, the individual asked Mr. Armstrong if he had sold his limousine and stated that “the boys are getting impatient”. Mr. Armstrong interpreted this as referring to his outstanding loan to the Accused. [ 32 ] Following the late July/early August incident, Mr.

Armstrong purchased two HD cameras that he set up in the office of the liquor store to secretly record interactions at the counter. There was no other video surveillance in the store. The December 3 rd incident with the Accused was recorded and a copy of the video marked as Exhibit # 2. The video clearly shows the Accused speaking to Mr. Armstrong for approximately 90 seconds, though the audio is faint. [ 33 ] On December 3, 2012, the Accused approached Mr. Armstrong across the counter. There was no one else in the store. While the Accused’s companion went to the beer fridge to get some beer, the Accused told Mr.

Armstrong that “time’s up. It’s time to pay”. He also told Mr. Armstrong that he now owed “37 ½”, which Mr. Armstrong interpreted as $37,500. Mr. Armstrong felt stress as a result of the encounter and believed that the Accused had brought along the other individual, a large man, for the purposes of intimidation. He assumed that they would come after him if he did not comply. He did not have the money to repay the loan and, to this date, has not repaid any money to the Accused. [ 34 ] On December 10, 2012, the police executed a search warrant at the home of the Accused.

During a search of a white van parked in the driveway, three black toques were located inside the van (Ex. #5 & Ex. #6). A roll of white duct tape was seized from inside the garage (Ex. #3) Photographs of the inside and outside of the van were taken at that time. (Ex. #8 and Ex. #9). Cst. Genge of the RCMP testified that one of the photographs found in Ex. #9 depicted what he described as duct tape residue found on the faux-wood panelling underneath one of the inside windows.

In cross-examination, he conceded that he was not an expert on the residue left by duct tape, or any other form of tape, though stated that he can differentiate between duct tape and packing tape residue. [ 35 ] Mr. Armstrong testified that he knew that the Accused had been arrested and that one of his release conditions was to stay away from him. On January 7, 2014, Mr. Armstrong reported to the police that the Accused had threatened him in the Rose and Crown pub in Banff when he stated: “we’ll meet again”. According to Mr.

Armstrong, the Accused was already in the bar when he arrived and made the statement as he walked past him. The Accused was with Greg Bechynski and Alison Fraser at the time, both of whom were right beside him. Mr. Armstrong took the statement as a threat and immediately sent a text message to Cst. Shala to report on what happened. He provided a statement to the police the next day regarding the incident. [ 36 ] The Defence called two witnesses at trial: Greg Bechynski and Alison Fraser. Mr. Bechynski testified that he has been friends with the Accused for 35-40 years.

On January 7, 2014, he was having a beer with the Accused in the Rose and Crown sometime between 4:30 p.m. and 5:00 p.m. Alison Fraser was the bartender at the time. There were four or five other people in the bar. Mr. Armstrong entered the bar and approached the bar to Mr. Bechynski’s left. At that point, the Accused said “I have to go” and left the bar with his half-finished beer on the counter. There was no interaction between the Accused and Mr. Armstrong, though Mr. Bechynski stated that he would have been able to hear anything said. After the Accused left the bar, Mr.

Bechynski went outside for a smoke. [ 37 ] He testified that he was not aware of the situation between the Accused and Mr. Armstrong and that he has never spoken to the Accused about the January 7, 2014, incident. In cross-examination, Mr. Bechynski stated that the Accused’s exact words were “I have to go. I’ll talk to you later.” [ 38 ] Ms. Fraser testified that she was working at the Rose and Crown on January 7, 2014. The Accused and Mr. Bechynski were sitting at the bar across from her drinking beer. At approximately3:00 p.m. or 4:00 p.m., Mr. Armstrong entered, walked past the Accused and ordered a drink.

There were no other people in the bar at the time. She heard the Accused state: “Well, that’s my cue to leave”, at which point he put on his jacket and left. She heard no conversation between the Accused and Mr. Armstrong The Position of the Crown [ 39 ] The position of the Crown is that the evidence of Mr. Armstrong was given in an honest and forthright manner, with no attempt to embellish his account of what happened. His evidence was clear and uncontradicted. He was unshaken during a prolonged

and intense cross-examination. With respect to his initial falsehoods to the police, the Crown says that he has provided a reasonableexplanation for his initial fear to report what had actually taken place. As such, the Crown says that he is not an unsavoury witness andthere is no requirement for a Vetrovec type warning. [40] With respect to Mr. Dickinson, the Crown says that he candidly acknowledged his criminal background and readily admittedto all of the entries on his criminal record.

The Crown notes that he has no prior convictions for perjury or fraud and that most of hisprior convictions were disposed of by way of fines and/or periods of probation. His only dispute with respect to his record related to arecent conviction for domestic assault which he denies took place. The Crown says that Mr. Dickinson is not an accomplice in the legalsense of the term and that no Vetrovec warning is appropriate or required.

Further, the Crown says that the evidence of Messrs.Armstrong and Dickinson provides some confirmation of the evidence of the other. [41] With respect to the January 7, 2014 incident, the Crown says that this is not the subject of a charge in the indictment. Whileconceding that a finding by the Court that Mr. Armstrong was not being truthful about what happened that date will raise concerns abouthis overall credibility, the Crown says that it simply makes no sense that he would give false information immediately after this incidentis alleged to have taken place. The Crown says that it is possible that Ms.

Fraser and Mr. Bechynski simply did not hear everything theAccused said to Mr. Armstrong. Alternatively, the Crown urges me to find that Mr. Armstrong may have heard the Accused speak toMr. Bechynski as he was departing and mistakenly believed the Accused was speaking to him. [42] The Crown urges me to find that there is sufficient evidence to find the Accused guilty on all six charges. The Position of the Defence [43] The position of the Defence is that the Crown’s case stands or falls on the evidence of Mr. Armstrong. The Defence says thatMr.

Armstrong is an admitted liar given the lies he told the police prior to his June 4, 2012, statement, and that his subsequent statementsand his trial evidence should not be believed. The Defence points to Mr. Armstrong’s initial hostility towards the police and his repeatedreference to a version of events involving an old drug debt even in the face of a police warning that he could be charged for misleadingthe police. [44] The Defence says that Mr.

Armstrong’s evidence is equally consistent with the story that he initially told the police regardingold drug debts owed to a South American gang, as with the version he told the police starting on June 4, 2012, and as related in his trialevidence. As both versions are equally consistent, the Defence says that the Crown has failed to establish proof of these offences beyonda reasonable doubt. Further, the Defence urges me to find that Mr.

Armstrong had a motive to make up this story, notably his extremedislike of the Accused and his desire to rid himself of his past debt to the Accused. [45] The Defence also contends that a Vetrovec type of warning is appropriate in the circumstances given that both Mr. Armstrongand Mr. Dickinson are unsavoury witnesses. He relies on the decision of the Supreme Court in R v Seruhungo, 2016 SCC 2, restoring atrial acquittal substantially for the reasons of O’Ferrall J.A. (dissenting) in the Court of Appeal, 2015 ABCA 189. In particular, theDefence urges me to be extremely careful with the evidence of Mr.

Dickinson given his lengthy criminal record and that fact that he wasinitially arrested for kidnapping, though never charged. Mr. Dickinson’s evidence is said to be vague as a result of two injuries that hesustained and lacking credibility given the attempts he made to deflect blame away from himself. In the end, the Defence says that thereis simply insufficient reliable evidence to convict the Accused of any of the offences charged. The Law [46] It is a fundamental principle of our criminal law that everyone is presumed innocent until proven guilty. This principle isenshrined in s. 11(

d) of the Canadian Charter of Rights and Freedoms. In a criminal prosecution, the onus is on the Crown throughoutto prove the guilt of an accused beyond a reasonable doubt. While there have been many judicial decisions on the concept of proofbeyond a reasonable doubt, I will mention only two. In R v Lifchus, (SCC), [1997] 3 SCR 320, the Supreme Court heldthat a reasonable doubt is a doubt based on reason and common sense and not one based on sympathy or prejudice.

While more isrequired than proof that an accused is probably guilty, it is not proof to any absolute certainty, nor is reasonable doubt an imaginary orfrivolous doubt. Similarly, in R v Starr, 2000 SCC 40 , [2000] 2 SCR 144, the Court held that proof beyond a reasonable doubtfalls closer to absolute certainty than to proof on a balance of probabilities. Analysis [47] I accept the evidence of Mr. Armstrong. His evidence was clear, detailed and straightforward. He was unshaken duringcross-examination.

While the Defence suggests that his evidence contained numerous inconsistencies, none were actually cited duringoral argument. [48] Mr. Armstrong readily conceded that he initially lied to the police and provided fabricated details of a past drug debt related tohis prior involvement with a South American gang. He told the police immediately after the April 29, 2012, incident that he planned todeal with the old debt himself and did not want the police to pursue an investigation. Under the circumstances, I accept his explanation for this attempt to have the matter dropped.

He was clearly shaken by the encounter with the Accused and the others on April 29, 2012and feared that the Accused would follow-up on his threat that he would not live to testify in court if he reported the incident to thepolice. He was questioned by the police within a very short time after the incident concluded, while the immediate impact of the threatsand the violence visited upon him would have been very fresh in his mind. [49] The fact that Mr.

Armstrong continued to display a lack of cooperation, even hostility, towards the police over the ensuing weeks must be viewed in light of both the April 29, 2012 incident, and the fact that the Accused paid two further visits to him at theliquor store in the weeks following. In addition, the Accused sent Greg Dickinson, a man with a very significant physical presence, tocollect on the loan within a few weeks after the event. These three visits clearly served to renew Mr. Armstrong’s sense of fear relative to the threats and violence he received at the hands of the Accused on April 29, 2012.

[50] I am satisfied that Mr. Armstrong had compelling reasons to relate a partially fabricated version of events to the police in anattempt to have them conclude their investigation. I note that while parts of the initial version were clearly false, a good many of thedetails provided from the very beginning are consistent with the later version provided to the police and Mr. Armstrong’s swornevidence at trial. [51] I reject the Defence’s contention that his long-standing dislike of the Accused provided Mr. Armstrong with a motive toconcoct a story implicating the Accused in the manner described.

While acknowledging that he harboured a dislike of the Accused, thisdated back to 2007. There is nothing in the evidence that provides any explanation for why he would have waited nine years to makethese serious accusations against the Accused. Likewise, I reject the Defence’s argument that Mr. Armstrong viewed the making of thiscomplaint as a means to avoid his civil liability to repay his longstanding debt to the Accused.

There is, in my view, simply no basis inlaw to find a link between the filing of a criminal complaint and the extinguishment of a pre-existing civil debt. [52] The Defence relies on a series of cases and urges me to find that Mr. Armstrong is an unsavoury witness and that his evidenceshould be closely scrutinized in accordance with the decision of the Supreme Court in Vetrovec v The Queen, (SCC),[1982] 1 SCR 811.

He also refers me to a series of other decisions which apply Vetrovec, including R v Brown (2005), (ON CA), 31 CR (6th) 211 (Ont CA); R v Ryan, 2014 ABCA 85; R v Sutherland, 2011 ABCA 319; R v Campbell, 2002 NSCA35; and the dissenting reasons of O’Ferrall J.A. in R v Seruhungo, 2015 ABCA 189, rev’d 2016 SCC 2. [53] I have carefully considered each of the decisions.

I am of the view that none of these cases apply to the evidence of Mr.Armstrong. [54] In Vetrovec, the Court referred to situations where: as a matter of common sense something in the nature of confirmatory evidence should be found before the finder of fact relies upon theevidence of a witness whose testimony occupies a central portion in the purported demonstration of guilt and yet may be suspect byreason of the witness being an accomplice or complainant or of disreputable character: at 17. [55] The Court went on to describe the types of situations where confirmation of a witness’s testimony, or some important part ofsame, may be helpful to the trier of fact in assessing the particular evidence: at 18.

Specifically, the Court referred to “the case of anaccomplice, or a disreputable witness of demonstrated moral lack, as, for example, a witness with a record for perjury.” The AlbertaCourt of Appeal in Ryan concluded that a Vetrovec-type warning is required “only with respect to unsavoury witnesses called on behalfof the prosecution and relied upon to establish an accused’s guilt:” at para 24. [56] The Defence relies on the Court of Appeal’s decision in Sutherland and suggests that it stands for the proposition that aVetrovec warning is appropriate when a witness gives evidence at trial that is inconsistent with his/her previous statements.

In my view,the decision in Sutherland does not stand for such a bald proposition. In that instance, the complainant testified at the accused’s trialafter the Crown withdrew criminal charges against him. In finding that the trial judge ought to have given the jury a Vetrovec warning,the Court of Appeal referred to the plea bargain, the fact that the complainant’s version of events at trial was not consistent with what heinitially said to the police, and that he admitted that he had lied at the preliminary inquiry on a critical point. [57] As previously indicated, I am not satisfied that Mr.

Armstrong is an unsavoury witness because he did not immediatelyidentify the Accused as his assailant to the police or, indeed, fabricated a story on account of fear to try and persuade the police toterminate their investigation. I accept his explanation for his initial attempts to get the police to terminate their investigation. [58] Furthermore, there is, in my view, nothing in his evidence that is inherently unreliable or which brings the credibility of hisevidence into serious question. Unlike many of the cases relied upon by the Accused, Mr. Armstrong is neither a jailhouse informant noran accomplice.

I find nothing in his evidence that is inherently untrustworthy nor motivated by an ulterior motive. Accordingly, I rejectthe Defence argument that a Vetrovec type warning was appropriate in this instance. [59] Moreover, I find that Mr. Armstrong’s story finds support in other evidence before me. First of all, the finding of hiscellphone and sunglasses, as well as a toque, on the street is consistent with his account of what transpired on Beaver Street.

Likewise,the bruising, scrapes and scratches depicted in the photographs taken very shortly after the incident are also consistent with his accountof having been roughed up and dragged in and out of the van by the two masked men. I also find that the descriptions of Mr.Armstrong’s emotional state provided by Ian Bennett and Cst. Shala are also consistent with his account of what he says transpired. [60] Finally, I find that the Accused’s statement to Greg Dickinson also supports Mr. Armstrong’s account of what transpired. Asmore fully described below, I accept Mr. Dickinson’s evidence in this regard.

Specifically, the Accused told Mr. Dickinson that he hadaccosted Mr. Armstrong in more or less the fashion described by Mr. Armstrong. The evidence of Mr. Dickinson provides confirmationof the key elements of the evidence of Mr. Armstrong. [61] I am not persuaded that the allegedly conflicting evidence relative to the January 7, 2014, incident at the Rose and Crown inBanff undermines the overall reliability of Mr. Armstrong’s evidence. All of the witnesses agree that the Accused said something as heleft the pub upon becoming aware that Mr. Armstrong had entered the premises.

However, all three gave slightly different versions as towhat was said. In direct examination, Mr. Bechynski testified that the Accused said “I have to go”, whereas in cross-examination, hestated that the Accused said “I have to go, I’ll see you later”. Ms. Fraser testified that the Accused said “Well, that’s my cue to leave”. Mr. Armstrong, on the other hand, testified that the Accused stated “we’ll meet again”. [62] There is no evidence before me that Ms. Fraser was aware of the no contact release condition imposed on the Accusedregarding Mr. Armstrong. Mr.

Bechynski specifically testified that he was not then aware of the situation between the two individualsand, somewhat surprisingly, stated that he never asked the Accused about why he left the bar so hurriedly on that date. Given that thesignificance of Mr. Armstrong’s arrival in the bar was only known to the Accused and Mr. Armstrong, I find that neither Ms. Fraser norMr. Bechynski had any reason to pay close attention to what transpired or what was said. Ms. Fraser was working at the time andacknowledged that she was involved in other activities behind the bar.

Furthermore, I have serious reservations about the reliability of

Mr. Bechynski’s evidence given his longstanding friendship with the Accused; the fact that he gave two somewhat different versions of what was said in examination-in-chief and cross-examination; and his surprising, to say the least, evidence that since the date of this event he has never spoken to the Accused about his abrupt departure from the bar. [ 63 ] I accept Mr. Armstrong’s evidence that he heard the Accused speak as he was leaving the pub and that he believed the Accused was speaking to him so as to give rise to Mr. Armstrong’s almost immediate report to the police.

As previously indicated, the Accused is not charged with a breach of his release conditions. Accordingly, it is not necessary for me to determine whether or not the Crown has established the essential elements of this offence beyond a reasonable doubt. It is sufficient, in my view, for me to find that the evidence of Ms. Fraser and/or Mr. Bechynski does not adversely affect my findings relative to the overall credibility of Mr. Armstrong’s evidence. [ 64 ] The Defence also challenges the reliability of Mr. Dickinson’s evidence on the basis of his lengthy criminal record.

The Defence describes him as an accomplice of Mr. Armstrong and urges the court to instruct itself on the dangers of accepting his evidence without confirming evidence. [ 65 ] Mr. Dickinson’s criminal record dates back to 1985, when he would have been 17 years of age, continuing until the last entry in 1989 for assault causing bodily harm, when he would have been 21 years of age. There is an additional conviction 15 years later in 1995 for assault, though Mr. Dickinson denies that the incident took place as alleged. It is noteworthy, in my view, that Mr.

Dickinson readily acknowledged each and every one of his criminal convictions during the course of his cross-examination. In many instances he testified that he plead guilty and readily accepted the consequences for his acknowledged bad behaviour. [ 66 ] Virtually all of Mr. Dickinson’s criminal convictions are in relation to property offences, though he also has a series of convictions for impaired driving. Most of his convictions resulted in periods of probation and the occasional jail sentence. He has never been convicted for fraud or perjury or any offence involving dishonesty.

He readily admitted that he failed to attend the preliminary inquiry relative to this matter on two occasions as a result of his concern that he would somehow be dragged back into a lifestyle that he had long since abandoned many years ago. [ 67 ] I was impressed by Mr. Dickinson’s candour and the forthright manner that he gave his evidence. I am satisfied that he has made very significant efforts to turn his life around and to move on from the bad behaviour that characterized his youth. He is currently engaged to be married and gainfully employed.

His involvement with the law is now dated, some 35 years in the past, save for the disputed incident with a domestic partner in 1995, also 20 years ago. He was vigorously cross-examined regarding his criminal record, his failure to attend the preliminary inquiry, and generally, largely to no avail. [ 68 ] During his direct examination, he testified that he was upset when he discovered the background to the Accused’s request that he approach Mr. Armstrong for the repayment of the loan.

He stated: I was upset, because I have a criminal record, and if I get involved with a situation such as this, I could probably do a lot of years in prison over something like this. So I was mad at Wayne, and I informed Wayne that I had changed my life from what I used to be, and just because I’m big and because of what I was, that I’m not to be hired like that anymore. And I even tried to give him his money back. I said, take your money back. And he said, No, keep it. You went to get the envelope, keep the money. So I did. [ 69 ] Under all of the circumstances, I am not prepared to find that Mr.

Dickinson’s now dated criminal record renders him an unsavoury witness. [ 70 ] I also reject the Defence’s contention that Mr. Dickinson is properly characterized as an accomplice in this instance so as to give rise to the possible need for a Vetrovec type caution regarding the acceptance of his evidence. First of all, Mr. Dickinson was never charged with any offence relative to Mr. Armstrong.

Though there was a passing reference in the evidence to the fact that he was arrested for the kidnapping, as was another individual who was also never charged, there is no evidence that charges were ever instituted against him or, indeed, that any sort of plea bargain was entered into with him by the Crown. The evidence is silent as to why he was ever arrested. [ 71 ] Second, I do not accept the Defence’s contention that Mr. Dickinson was somehow trying to deflect the blame away from himself in giving evidence implicating the Accused.

On the evidence before me, there is no suggestion that he committed a crime or, indeed, did anything wrong, in making an approach to Mr. Armstrong at the request of the Accused. I accept his evidence that he was unaware of what had transpired on April 29, 2012, until after he made the visit to Mr. Armstrong. Furthermore, I am not prepared to find that Mr.

Dickinson’s failure to attend the preliminary inquiry relative to this matter created some motive or reason to implicate the Accused. [ 72 ] Finally, even if a Vetrovec type caution or warning was required under the circumstances, I am satisfied that the evidence of Mr. Armstrong provides confirmatory evidence that restores faith in relevant aspects of Mr. Dickinson’s testimony. See: R v Khela , 2009 SCC 4 , Kehler , 2004 SCC 11 .

Parties to an Offence [ 73 ] During oral argument, neither counsel advanced argument as to the possible basis for the Accused’s liability for the offences charged given the evidence that, though present, he did not personally or directly commit most of the offences alleged in the indictment. Accordingly, on the date originally set for decision, I asked counsel to provide me with written submission on this issue. Written submissions were filed by the Crown on January 8, 2015, and by the Defence on January 15, 2016. [ 74 ] The theory of the Crown is that the Accused is liable for all of the offences.

As such, the Crown says that the Accused either committed the offence personally or was a party to the offence actually committed by others in that he directed its commission and participated either as an aider or abettor. [ 75 ] The theory of the Defence is that:

a) With respect to count #1 (robbery) and count #4 (assault with a weapon), the Accused was merely present at the scene and did nothing to further, facilitate, promote, assist or encourage the principals in the commission of the offences. As such, the Crown has failed to prove the actus reus of aiding or abetting. Further, the Defence says that the Crown has failed to prove that the Accused had the necessary mens rea for aiding or abetting.

b) With respect to the offences of kidnapping (count #2) and extortion (count #5 & #6), the Defence says that the Crown has failed to prove the offences beyond a reasonable doubt due to the unreliabity of the Crown witnesses.

c) With respect to the offence of unlawful confinement (count #3), the Defence says that this is subsumed by the offence of kidnapping and subject to the application of the rule in Kienapple .

d) With respect to count #4, the Defence says that simple assault is included in the actus r eus of kidnapping and there is no evidence that a weapon was used either inside or outside the van. [ 76 ]

Section 21 of the Criminal Code deals with parties to an offence as follows: s. 21(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out that common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [ 77 ] I would also refer to s. 22 of the Code which deals with persons counselling an offence: s. 22 (1) Where a person counsels another person to be a party to an offence and that the other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling. Kidnapping/Unlawful Confinement [ 78 ] The offence of kidnapping requires proof beyond a reasonable doubt that the Accused unlawfully, that is without any lawful authority, took Mr. Armstrong from one place to another through force or fraud against his wishes.

The Crown must also prove beyond a reasonable doubt that the Accused intended to confine or imprison Mr. Armstrong against his will. [ 79 ] The offence of unlawful confinement requires proof beyond a reasonable doubt of two things: (1) that the Accused intentionally confined Mr. Armstrong; and (2) that the confinement was without lawful authority. Confinement means to physically restrain contrary to a person’s wishes, thereby depriving them of their liberty for a significant period of time. [ 80 ] In this instance, I am satisfied beyond a reasonable doubt that Mr.

Armstrong was kidnapped when he was forced into the white Chevy van, against his will, and driven from Beaver Street to an isolated area at the north end of Banff. Likewise, I am satisfied beyond a reasonable doubt that Mr.

Armstrong was unlawfully confined when he was physically restrained and forced into the white Chevy van, against his will, and deprived of his liberty during the drive to the north end of Banff where he was eventually released and permitted to leave the area. [ 81 ] I am also satisfied beyond a reasonable doubt that the Crown has proven that the Accused committed both offences either as a principal or as an aider or abettor. On the evidence, it is clear that Mr. Armstrong owed money to the Accused.

Sometime prior to April 29, 2012, the Accused, by his own admission, hired a few guys out of Calgary to come and take Mr. Armstrong for a ride around Banff, “thump” on him, and take the money in his possession for the purpose of securing repayment of the outstanding loan. The Accused directed the actions of others, including taping plastic to the inside of his van and directing the driver of the van once Mr. Armstrong had been forced inside. [ 82 ] The words and actions of the Accused clearly encouraged others to commit the offences of kidnapping and unlawful confinement.

I am unable to accept the argument that the Accused was merely present when all of these events were taken place. On the contrary, he developed the plan and directed the execution of the plan from beginning to end. As such, I am satisfied that his conduct amounted to abetting those directly involved in the physical acts constituting these offences. These individuals were, by their actions, clearly aware of the Accused’s directions and encouragement. [ 83 ] Moreover, I am satisfied that the Accused had the requisite mens rea .

On the evidence before me, the Accused clearly intended that his plan be acted upon, i.e. he intended that the individuals he hired would restrain Mr. Armstrong against his will, drag him into the vehicle, transport him to another location and, in the process, restrict his physical movements. [ 84 ] I am also satisfied that the Accused’s guilt relative to these two offences has been established as a principal. As outlined above, the evidence reveals that he developed the plan, hired the other participants and supplied the vehicle used in the commission of the offences.

It is, in my view, reasonable to infer that he also supplied the tape and plastic used to virtually seal the inside of the vehicle.

In developing the plan and engaging and directing others to execute the plan, the Accused and the others formed a common intention to carry out an unlawful purpose. The Accused knew that the commission of the offences of kidnapping and unlawful confinement would be a probably consequence of carrying out the plan as this was the essence or fundamental purpose of the plan. In the result, the Accused is guilty of these offences as a principal by virtue of s. 21(2).

Extortion [ 85 ] The offence of extortion requires proof that threats or violence were used to prevail upon someone to do something or get something done. The offence requires proof that the accused intended to use threats or violence in order to get someone to do something or get something done. The Crown must also establish that the accused lacked reasonable justification or excuse for his conduct. [ 86 ] In this instance, I am satisfied beyond a reasonable doubt that the Crown has proven the offence of extortion relating to the events on April 29, 2012. On the evidence of Mr.

Armstrong, once the vehicle reached an isolated location on the north end of Banff, he was forced out of the vehicle. The Accused exited the vehicle at that point as well and told Mr. Armstrong that he could either pay the outstanding loan, pick up and run, or go to the RCMP and not make it to court. Under all of the circumstances, including the kidnapping, unlawful confinement and assaults that immediately preceded the Accused’s statements, I am satisfied that the words used by the Accused amounted to a threat to Mr. Armstrong if he did not repay the loan.

I am also satisfied that the Accused had no reasonable justification or excuse for his conduct. [ 87 ] The Accused is also charged with extortion in relation to an incident that occurred on December 3, 2012, when the Accused approached Mr. Armstrong inside the liquor store and demanded repayment of the loan. The presence of the Accused, together with his large companion, inside the store was secretly recorded by Mr. Armstrong on video equipment he installed in the premises (Exhibit #2). I am satisfied that the Accused’s words and actions on December 3, 2012 amounted to extortion.

Given that his attendance and demand for repayment of the loan, now stated to be “37.5”, took place after the events of April 29, 2012, the two subsequent collection attempts of the Accused, and the attempted collection of the loan by Mr. Dickinson sometime in May 2012, I am satisfied that the threat of violence was implicit in his words and in his attendance at Mr. Armstrong’s place of employment in the company of another large man who had previously made another demand for repayment of the loan on the Accused’s behalf.

Assault with a Weapon [ 88 ] The offence of assault with a weapon requires proof that there was an intentional application of force directed towards another person, without his/her consent and that the accused person knew that the victim did not consent to the use of force. A weapon is anything used, designed to be used or intended to be used in killing or injuring anyone or for the purpose of threatening or intimidating anyone. [ 89 ] I am satisfied beyond a reasonable doubt that the Accused directed the actions of the two masked men throughout their interactions with Mr. Armstrong. Mr.

Armstrong specifically referred to the Accused “directing” the driver of the van during the course of the trip to the compound area, while Mr. Dickinson related that the Accused told him that he had hired a few guys from Calgary to come out and execute his plan. The actions of the Accused’s companions in “roughing up” Mr. Armstrong, as evidenced by the bruising and scratches, amounted to an assault. On the evidence, the only reasonable inference to be drawn is that all of this took place without consent. Further, one of the masked men was armed with a baseball bat.

Under the circumstances, I am satisfied that the bat constituted a weapon and that it was carried for the purpose of threatening and/or intimidating Mr. Armstrong. [ 90 ] As with the case of the charges of kidnapping and unlawful confinement, the Accused was not directly involved in the carrying of the weapon or the assaults on Mr. Armstrong. [ 91 ] However, the words and actions of the Accused clearly encouraged others to commit the offence of assault with a weapon. As previously indicated, I am unable to accept the argument that the Accused was merely present when all of these events were taken place.

On the contrary, he developed the plan, hired the four other men, and directed the execution of the plan from beginning to end. As such, I am satisfied that his conduct amounted to abetting those directly involved in the physical acts constituting these offences. These individuals were, by their actions, clearly aware of the Accused’s directions and encouragement. [ 92 ] Moreover, I am satisfied that the Accused had the requisite mens rea . On the evidence before me, the Accused clearly intended that his plan be acted upon, i.e. he intended that the individuals he hired would apply physical force to Mr.

Armstrong without his consent. While there is no direct evidence that the plan involved the use of a baseball bat as a weapon to threaten and/or intimidate Mr. Armstrong, I am prepared to infer from all of the surrounding circumstances that the Accused supplied the baseball bat carried by one of the masked men during the incident. As such, I am satisfied beyond a reasonable doubt that his guilt has been established via s. 21 either as an aider or abettor. [ 93 ] I am also satisfied that the Accused’s guilt relative to these two offences has been established as a principal.

As outlined above, the evidence reveals that he developed the plan, hired the other participants and supplied the vehicle and the baseball bat used in the commission of the offences. In developing the plan and engaging and directing others to execute the plan, the Accused and the others formed a common intention to carry out an unlawful purpose. The Accused knew that the commission of the offence of assault with a weapon would be a probably consequence of carrying out the plan as this was the essence or fundamental purpose of the plan.

In the result, the Accused is guilty of these offences as a principal by virtue of s. 21(2). [ 94 ] I am also satisfied that the accused’s guilt is established via s. 22(2) of the Criminal Code , in that he counselled those he hired to assist him in the execution of his plan to abduct, confine and assault Mr. Armstrong. Given that the masked men hired by the Accused were inside the Accused’s vehicle, he must have been aware of the presence of the baseball bat inside the vehicle in the immediate possession of one of the hired assailants.

Under all of the circumstances, I am satisfied that the Accused knew or ought to have known that the offence of assault with a weapon was likely to be committed during the course of the counselled offences of kidnapping, unlawful confinement and assault. Robbery

[ 95 ] The offence of robbery requires proof beyond a reasonable doubt that the Accused stole something from Mr. Armstrong; that he used violence or the threat of violence; and that the violence was used for the purpose of carrying out the stealing. In determining whether the violence was used for the purpose of carrying out the stealing, the violence may be for any of three purposes – to obtain what is stolen; to prevent resistance to the stealing; or to overcome resistance to the stealing. [ 96 ] I am satisfied beyond a reasonable doubt that the removal and taking of the $200 from Mr.

Armstrong’s pocket during the course of taping his hands with duct tape and dragging him out of the van amounted to robbery. In these circumstances, it is clear that money was stolen from Mr. Armstrong during the course of which violence was used.

I am satisfied that the violence consisted of the continuing violence associated with the initial abduction and unlawful confinement, as well as the taping of his hands, and the dragging him out of the vehicle. [ 97 ] As with the case of the charges of kidnapping, unlawful confinement, and assault with a weapon, the Accused was not directly involved in the robbery of Mr. Armstrong. [ 98 ] I am satisfied based on what the Accused told Mr. Dickinson that his plan relative to the kidnapping and unlawful confinement of Mr. Armstrong also involved the theft of any money that Mr.

Armstrong might have on his person at the time of the incident. In other words, I am satisfied that the Accused’s plan involved robbery. As such, the words and actions of the Accused clearly encouraged other to execute his plan and to commit the offence of robbery. As previously indicated, I am unable to accept the argument that the Accused was merely present when all of these events were taken place. On the contrary, he developed the plan, hired the four other men, and directed the execution of the plan from beginning to end.

As such, I am satisfied that his conduct amounted to abetting those directly involved in the physical acts constituting these offences. These individuals were, by their actions, clearly aware of the Accused’s directions and encouragement. [ 99 ] Moreover, I am satisfied that the Accused had the requisite mens rea . On the evidence before me, the Accused clearly intended that his plan be acted upon, i.e. he intended that the individuals he hired would apply physical force to Mr. Armstrong without his consent and would steal any money that he had on his person at the time.

As such, I am satisfied beyond a reasonable doubt that his guilt has been established via s. 21 as an abettor. [ 100 ] I am also satisfied that the Accused’s guilt relative to these two offences has been established as a principal. As outlined above, the evidence reveals that he developed the plan, hired the other participants and supplied the vehicle used in the commission of the offences. In developing the plan and engaging and directing others to execute the plan, the Accused and the others formed a common intention to carry out an unlawful purpose.

The Accused knew that the commission of the offence of robbery would be a probably consequence of carrying out the plan as this was an element of the plan. In the result, the Accused is guilty of robbery as a principal by virtue of s. 21(2). Conclusion [ 101 ] For the reasons previously stated, I am satisfied beyond a reasonable doubt that the Crown has established the guilt of the Accused on each of the six counts set out in the indictment. I find him guilty as charged. Heard on the 7 th - 10 th day of December, 2015. Dated at the City of Calgary, Alberta this 21 st day of March, 2016. M. David Gates J.C.Q.B.A.

Appearances: Deanna Dahlseide Haase for the Crown J. Paul Brunnen, Q.C.

for the Accused, Wayne D. Church