R. v. Ammaq, 2018 NUCJ 27

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ammaq, 2018 NUCJ 27 Date: 20180921 Docket: 08-17-271 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Christine Ammaq ________________________________________________________________________ Before: The Honourable Mr. Justice Gregory Mulligan Counsel (Crown): Roman Dzioba & Barry McLaren Counsel (Accused): Lana Walker Location Heard: Iqaluit, Nunavut Date Heard: September 19, 20 and 21, 2018 Matters: Verdict for charge under section 348(1) (

b) of the Criminal Code , RSC 1985, c C-46. REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This matter proceeded as a judge alone trial. [ 2 ] Christine Ammaq faces one count of break, enter and theft contrary to s. 348(1) (

b) of the Criminal Code , RSC 1985, c C-46. [ 3 ] The Crown proceeded by indictment and called four witnesses. [ 4 ] The Defence elected to call no evidence. II. EVIDENCE [ 5 ] The circumstance surrounding this offence relate to an allegation of a break in at the residence of the late John Manning and his spouse, Geneva Chislett. Mr. Manning was involved in a very serious accident on July 6, 2017, at their residence. His injuries proved to be fatal a few days later. As a result of his injuries, he was medevac’d to Ottawa. His spouse and her adult daughter followed him later on a commercial flight on July 7, 2017.

As a result, their home was empty until Ms. Chislett returned on July 13, 2017. Her sister was authorized to enter the house to look for a sweater. Otherwise the home remained empty. [ 6 ] When Ms. Chislett returned home, she quickly became aware that many pieces of carvings had been taken. She noticed a walrus tusk, but could see that the walrus carving itself was missing. This was a larger piece, which she valued in the $3,000 range. Her husband was an avid collector of soapstone carvings and other Inuit artifacts. [ 7 ] She learned that her husband had installed a security system around the property.

It was installed by Rodney Flight a technician with Deck Electric. Mr. Flight testified by telephone and indicated that he had installed four cameras and a recorder at the property. He came to the house at the request of Ms. Chislett to examine any possible footage for the time period when Ms. Chislett was away. [ 8 ] Together they examined footage for about one and a half hours. At one point, he saw a light come on inside the home and could see a person walking by a small window. He could not tell if it was a man or a woman.

As he continued his examination of the footage, he saw a lady on the porch outside the home. He copied the relevant footage – less than two minutes – and put it on a memory stick for Ms. Chislett. She later provided that to the police. [ 9 ] The date stamp indicated the date was July 8, 2017, and the time was 12:09 or just after midnight on the day that Ms. Chislett left the home. Mr. Flight made no changes or alterations to the video clip. It was introduced as a lettered exhibit and eventually it became a numbered exhibit. It was later viewed, in court, during Ms. Chislett’s testimony. [ 10 ] Mr.

Flight testified he saw a person outside with bags, and that ended his involvement in the matter. [ 11 ] An Agreed Statement of Facts established that Ms. Ammaq was arrested on July 15, 2017, at her home. No items were seized from her. III. POSITIONS OF THE PARTIES

[ 12 ] Both Counsel agree that the real issue in this case is identity. Was the accused the person seen on the porch of the Manning residence, struggling with three bags on July 8, minutes after midnight? [ 13 ] The Crown submits that it was the accused and that the essential elements of this offence have been proven beyond a reasonable doubt by the evidence of Ms.

Chislett, Officer Josephee Baines, and the video itself. [ 14 ] The Defence submits that the Crown has not proven identity beyond a reasonable doubt, and there are weaknesses in the evidence called by the Crown. [ 15 ] I remind myself that the Crown must prove the essential elements of this offence beyond a reasonable doubt. The accused has no obligation to prove her innocence or testify. The Crown’s burden never shifts to the Defence. [ 16 ] I now turn to the evidence of the two witnesses who spoke to identification. A. Geneva Chislett [ 17 ] Ms. Chislett testified about knowing Ms.

Ammaq prior to this occurrence. Ms. Chislett has lived in Iqaluit for 27 years. Ms. Ammaq lived across the street from her home at 753. This was about ten years ago. They were neighbours for about three years, and she would see Ms. Ammaq almost daily. Ms. Chislett would say “hello” from time-to-time. After Ms. Ammaq moved away from the neighbourhood, Ms. Chislett would see her occasionally around town at places like the grocery store. They did not talk, but Ms. Chislett testified that she knew Ms. Ammaq to see her and that Ms. Ammaq was shorter than herself.

This is the knowledge and experience she brought to bear when she examined the video footage in court. [ 18 ] The video clips were short, less than two minutes in duration. It first showed a woman on the Manning porch, struggling with three bags and sorting or redistributing items among the bags. At that distance or vantage point, Ms. Chislett could not identify the female. The female then moved along with the three bags, shifting one bag strap over her shoulder and walking towards the camera with the remaining two bags, one bag in each hand.

As she approached the camera, she moved over or around a dog gate and her face was clearly seen. It was at this point that Ms. Chislett concluded that it was “the lady I know as Christine.” She said, based on the haircut and face, “I know who she is.” She also made an in dock identification of the accused. B. Constable Josephee Baines [ 19 ] Constable Baines also gave evidence at this trial. He is an RCMP officer with 16 years of experience. At 40 years of age he has spent almost all of his life in Iqaluit and he is Inuk. He knows Ms.

Ammaq and has met or dealt with her over 20 times as a police officer or when he was off duty in the community. He was not part of this investigation and he was off duty at the time. He was aware of Mr. Manning’s accident, but not the break in. The video clips allowed other officers to capture a still photograph of the woman on the porch as her face approached the camera. Constable Baines testified that when he was showed the photograph, he had no difficulty identifying Ms. Ammaq and knew “right away” that it was her. The still photo was made as an exhibit. [ 20 ] He then viewed the video clip.

He had not previously seen the video clip. Nothing that he saw in the video changed his opinion that it was Ms. Ammaq. He testified in cross-examination that it was her “without a doubt.” IV. ANALYSIS [ 21 ] As the trier of fact, it is my task to look at the whole body evidence to determine if the Crown has proven identity beyond a reasonable doubt. That standard does not apply to individual items of evidence. [ 22 ] Here we have an in dock identification of Ms. Ammaq by Ms. Chislett. But we have far more. Ms. Chislett had seen Ms. Ammaq almost daily for years, when she was across the street. Ms.

Chislett fairly stated that she could not identify the woman from the first camera view when the woman was sorting the bags, but that changed when the woman approached the camera and her face appeared.

She testified it was the lady she knew as Christine. [ 23 ] Officer Baines is an experienced officer, as such he is a trained observer. But, this was not a passing glance of a suspect running away. He has known and dealt with the accused for years. His evidence was that he had no doubt who the woman in the photograph was. Nothing in the video caused him to change his view or opinion, and he was not shaken in cross examination. A. The Doctrine of Recent Possession [ 24 ] I will say a word about the Doctrine of Recent Possession. I am not satisfied that the Doctrine of Recent Possession has application here.

There are circumstances where it might apply and I will give an example. Let us say that the police stopped a man later that week holding the walrus carving and that the police had a report that the walrus carving had been stolen recently. The man was given an opportunity to explain how he became to possess the walrus. The trier of fact in those circumstances could use this answer to decide if there was an inference to be drawn that the man knew it was stolen. But, that is not what happened here. Ms. Ammaq was not arrested right after the break in.

She did not have any items in her possession, thus the issue of her explanation did not arise and the doctrine of recent possession does not assist me here. However, when I consider the whole body of evidence, including the testimony of Ms. Chislett and the testimony of Officer Baines and the video itself, I am satisfied that the Crown has proven that it was Ms. Ammaq identified in the video, sorting three bags on the porch of Mr. Manning’s residence, after midnight on July 8, 2017. B. What was in the bags? [ 25 ] Ms.

Chislett testified that many pieces of carving went missing, probably 25, some large and some small intricate pieces. She spoke about the missing walrus carving and identified on the video that she could see the fins of the carving protruding from one of the bags as Ms. Ammaq sorted through them on the outside porch. I accept Ms. Chislett’s evidence that she saw the fins of the walrus carving in a bag in Ms. Ammaq’s hands. This was captured on the video of Ms. Ammaq on the porch only minutes after midnight on the very day that Ms. Chislett had left the house. C. Identity [ 26 ] Mr. Flight and Ms.

Chislett spent one and a half hours examining the video. No other persons were seen on the porch, except Ms. Ammaq. Mr. Flight had no reason not to be truthful and Ms. Chislett was so upset by her husband’s death that she did not pursue any insurance claim. I found her to be a truthful witness. Both saw someone in the house when the camera and the light came on. Ms. Ammaq was no stranger to the Manning residence. She lived across the street and was a neighbour for about three years, some 10 years earlier. [ 27 ] Ms. Ammaq was seen alone on the porch sorting and struggling with three bags.

No one else was seen helping her. Both witnesses saw a person the house when the light came on. I am satisfied that there is a reasonable inference to be drawn from the evidence that she was the person inside the house, collecting the carvings for the three the bags she was seen with on the porch. It would be pure speculation to find that she was merely a helper of some other person when her movements are considered together with the absence of any other parties on the video. V. DISPOSITION [ 28 ] Based on the totality of the evidence, I find that Ms.

Ammaq broke into the Manning residence, then entered the residence and committed the offence of theft by removing the carvings from the Manning collection. I therefore I make a finding of guilty of breaking, entering, and committing the indictable offence of theft. Dated at the City of Iqaluit this 21st day of September, 2018

___________________ Justice G. Mulligan Nunavut Court of Justice