Her Majesty the Queen - v. -, 2014 SKPC 158

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 158 Date: August 1, 2014 Information: 44334348 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lance Littlecrow Appearing: D. Howarth For the Crown M. Buchinski For the Defendant JUDGMENT B.G. MORGAN , J [ 1 ] Mr. Littlecrow was charged with having in his possession certain property, knowing that that property was obtained directly or indirectly as a result of the commission of an offence punishable by indictment, as the charge is formally set out in s. 355 (

b) of the Criminal Code . The main issue is identification, the use that a trial judge may make of the court file in resolving that issue, and the procedure to follow. [ 2 ] The Crown called three witnesses and I do not intend to review all of their evidence in detail, as the following matters are not in dispute. I am absolutely satisfied of all of the following facts:

1) on January 25, 2014, sometime around lunch time, Ms. Reid and her boyfriend left their temporary suite at the Northwood Inn in Saskatoon to do laundry, returning approximately two hours later; 2) when they returned, they noted that a Playstation 3, two control panels, and some video games that had been in the room when they left, were no longer there. There is no question whatsoever that those items were stolen; although there were no signs of forced entry, the window adjacent to the motel door, which did not close securely, opened without difficulty, to the knowledge of acquaintances and relatives of Ms.

Reid; 3) that theft was reported to the police by Ms. Reid, and Constable Conrad of the Saskatoon Police Service met with her on January 28 to take the complaint. She told him what had happened the previous Saturday, and she provided Constable Conrad with the serial number of the Playstation that was stolen; 4) on February 10, 2014, Constable Conrad went to a pawn shop in Saskatoon, having been contacted in the interim by Ms. Reid, who felt she may have located her Playstation there.

He viewed a computer screen of a record of a transaction that had taken place at the pawn shop at 2:45 p.m. on Saturday, January 25, 2014. At that time, Ling Guo, an employee of that pawn shop, met with a person who had identification in the name of Lance Littlecrow, of 406 Avenue P South, with a date of birth of December 20, 1995. Ms. Guo at that time took from that individual the exact same Sony Playstation that had been stolen (the serial numbers were identical), two control panels and one of the three video games that had been stolen, and gave that person $60.00; and 5) Ms.

Guo’s evidence was that this was a new customer, as far as she knew, and that it was required that this individual provide two pieces of government-issued identification, and provide a photograph. She was provided with a health card and a status card.

She testified that the information she recorded from the identification that she received was accurate, and that the photo she took was a photograph of the person who pawned the items. [ 3 ] On February 11, 2014, other members of the Saskatoon Police Service went to the pawn shop and took a printout of what Constable Conrad saw on the screen on February 10, 2014. [ 4 ] Exhibit P-1 is the pawn ticket that was filled out on January 25, and it bears a signature of “Lance Littlecrow”. The employee name on that ticket is Alessia, that being Ms. Guo’s English name.

The photograph contained on a card appended to Exhibit P-1 was issued February 10, 2014 and is obviously a copy of the photograph downloaded by the police on February 11, purporting to be a photograph of Mr. Littlecrow. [ 5 ] Exhibit P-2 is the transaction record that was downloaded from the computer screen, and contains a picture of the individual in the shop, and personal information referred to above.

It also notes the items that were pawned for $60.00. [ 6 ] Defence counsel had raised the argument that the Crown had not established that the person who pawned the items knew the items were stolen, and sought a directed verdict.

Courts routinely find knowledge, or wilful blindness or recklessness, based on all of the circumstances, and there was certainly enough evidence in this case to dismiss that application, which is what happened. [ 7 ] Turning back to the case itself, I can also apply the doctrine of recent possession, which essentially states that where items have recently been stolen, and they are in the possession of the defendant, there is rebuttable presumption that the individual knew those items were stolen. I do not have to make such a presumption, but in this case, I have no hesitation in doing so.

These items were pawned for a pittance of their value within no more than hours of being taken, if that long.

I need not determine who stole the items, as the charge is possession of stolen property, and there is no doubt that the person who brought those items into the pawn shop was in possession of them, and knew that the property was stolen. [ 8 ] The defence had also raised the issue that there was a discrepancy between the time stamp on the Transaction Report (Exhibit P-2), in which it indicates the transaction occurred at 2:45 p.m., and the alleged time of the photo being taken, on that same form, at 9:13:58 p.m. that day.

I am completely satisfied that the notation 9:13:58 is an error, was generated by the computer, and is

incorrect. I find that the transaction occurred, and the photo taken, at 2:45 p.m. or within minutes of that time. That is because, among other reasons, Ms. Guo stated that was when she believed the transaction had occurred, that the computer sometimes generates incorrect times, and that in any event, it would have been impossible to take the photo after 9:00 p.m. as the shop was not open at that time. [ 9 ] That leaves the sole issue of identification.

Just because someone with identification in the name of Lance Littlecrow walks into a pawn shop and pawns stolen property does not necessarily mean that the Lance Littlecrow sitting in the prisoner’s dock at the trial is one and the same person. Identification is an essential element of a criminal offence, and although it may be established in a variety of ways, it still has to be established, and beyond a reasonable doubt by the Crown. [ 10 ] The Crown argues identification can be made in three ways: 1. The fact that the name is identical on the Information and the Transaction Report from the pawn shop; 2.

The fact that the date of birth is the same on both documents; 3. The use of the photograph of the person claiming to be Mr. Littlecrow at the pawn shop, by comparison to the individual sitting in the prisoner’s dock on the trial date. [ 11 ] I start by observing that there is simply no doubt whatsoever in my mind that the individual sitting in the prisoner’s dock on the trial date of July 26, 2014 was in fact Lance Littlecrow. He was produced from custody, and he was one of two individuals in the prisoner’s dock when Court started on the trial date.

At that time, he was identified as Lance Littlecrow. [ 12 ] I also note that the date of birth on the Information is shown as December 20, 1995, and his address is shown as 1 - 406 Avenue P South, Saskatoon, but I don’t know that those things are true, although admittedly there is a strong presumption of regularity in these circumstances. [ 13 ] There is also no question that Ms. Reid, who has known Mr. Littlecrow for some time identified him in the prisoner’s dock. I have no doubt that her identification is accurate. [ 14 ] Cst. Conrad did not at any time deal with Mr.

Littlecrow himself, so he could not identify Mr. Littlecrow. Ms. Guo was not asked if the individual in the dock on the trial date of July 26, 2014 was the same individual who she dealt with on January 25, 2014. Again, the fact that the individual she dealt with bore identification of Mr.

Littlecrow is a factor I can consider, but does not prove identity. [ 15 ] Thus, as all other elements of the offence are made out, conviction or acquittal turns solely on whether or not it can be proven that the person who walked in and claimed to be Lance Littlecrow at the pawn shop is the same Lance Littlecrow who was sitting in the prisoner’s box on the trial date. [ 16 ] The Crown argues that it would be a rather remarkable coincidence if it were otherwise, but agrees that this is a factual determination. [ 17 ] A Court is allowed to make inferences and draw conclusions based on all the evidence.

In this case, the evidence of identification is as follows: 1. The birth date information on the Information and that provided to Ms. Guo in the pawn shop is identical. I am satisfied that the information on the identification provided to the clerk was in fact correctly recorded as December 20, 1995, although I do not know where she actually got that date, that is, from a proffered piece of identification, or perhaps from the individual. I cannot say for sure in any event what Mr.

Littlecrow’s birthday is; the best I can say is that it has been recorded as the same date on each of the Information and Exhibit P-2, a factor I do take into account;

2. Exhibit P-2 shows that the item was pawned by Lance Littlecrow of 406 Avenue P South, and that is the address shown on theInformation, although the Information stipulates an apartment number that is not on the pawn shop material. Again, I don’t know thatthe address information from any source is accurate; the best I can say is that it is almost identical, again a factor I do take into account;and 3. The photograph shown on the Transaction Report (Exhibit P-2) is at least similar to the individual I know to be Lance Littlecrow whowas sitting in the prisoner’s dock on the trial date.

I cannot say they are identical; the photograph was taken almost exactly six monthsbefore the trial was held, and the photograph on Exhibit P-2 shows the individual’s hair hanging down across his forehead, as opposed tobeing combed back as Mr. Littlecrow’s hair was on the trial date. Further, it appears that Mr. Littlecrow’s hair is a slightly lighter colourthan the hair of the individual shown on the photograph, which could be a lighting issue at either time.

The best I can say is that theyappear to be the same individual, and there are certainly strong similarities, although I cannot say beyond a reasonable doubt that thephotograph is identical to the Mr. Littlecrow in Court, based solely on the photograph and in comparison to Mr. Littlecrow in theprisoner’s dock. However, the similarities are there, and this is another piece of evidence I can look at. Further, I note that I am not toanalyse each piece of evidence in isolation. Rather, I am to look at it as a whole.

A fourth potential source to resolve the identification issue would be to compare the signature on the pawn ticket that was signed onJanuary 25, 2014 with the signature on the Undertaking given by the individual I know to be Mr. Littlecrow, and attached to Information44334348, which was signed March 31, 2014 by Mr. Littlecrow, at a time when he was released from custody on various conditions. [18] Dealing specifically with the last two points, the case of R. v.

Abdi, (ONCA), 11 C.R. (5th) 197, discussedin particular the application of s. 8 of The Canada Evidence Act, which allows for “comparison of a disputed writing with other writingproved to the satisfaction of the Court to be genuine” to be made by witnesses, stating that such comparison can be used as proof of the“genuineness or otherwise of the writing in dispute”. Specifically on that point, the Abdi case states that a trier of fact, not just a witness,can make that comparison.

Obviously, the weight to be given to that evidence is a matter for the trier of fact to consider. [19] The problem in the case before me is that although the first three indicia of potential identification discussed above were fullyargued at the conclusion of the evidence in the trial, neither counsel were afforded the opportunity to address the issue of the proposeduse of the comparison of the signature on the Undertaking with the signature on the pawn ticket, as that came to mind after argument hadbeen made.

After trial, the matter was adjourned briefly for decision. [20] The way to deal with this is found in R. v. Poole, 2014 BCSC 102, which held that if a trier of fact does make such ahandwriting comparison, failure to advise counsel of his or her intention to do so brings unfairness to the trial process.

Thus, theappropriate way to deal with this is to examine the documents in open court, and allow the defence to make submissions and/or callexpert evidence on the issue, providing an adjournment for that purpose if necessary. (See paragraphs 11-24 of Poole on the issuegenerally of handwriting comparison and the proper procedure to follow in a case such as this.) [21] In this case, that offer was made to counsel prior to judgment, and the comparison was undertaken in open court. Counselmade submissions on the issue, and the defence declined the opportunity to call evidence on that handwriting. Mr.

Buchinski did pointout that he felt that a comparison made in the absence of expert evidence should bear little weight, especially when an individual’sliberty was at stake. [22] Although it is not a usual step for a trial judge to make such a comparison, the case law clearly allows for it to occur. I agreewith and adopt fully the reasoning as set out in Poole, supra, on this point.

Had this comparison been done without notice to counsel,outside of Court, and without an opportunity to address the issue, either in argument or through the calling of evidence, the trial processwould be unfair, and would be seen to be unfair. In Poole, supra, the first anyone knew of the comparison having been made was whenthe judge delivered her reasons for judgment. In this case, the comparison of the handwriting was made in open court in the presence ofthe defendant and counsel, as was the comparison of the picture of the alleged Mr. Littlecrow to the actual Mr. Littlecrow on the trialdate.

The matter was then briefly adjourned to allow time for the comparison to be considered, along with all the evidence. [23] Triers of fact are routinely and properly invited to make inferences, in addition to factual findings, based on the evidence

before them. When dealing with photographs or handwriting, the usual cautions are to be observed, as identification evidence has been found to be fraught with difficulties, but this is again a familiar function to a trial judge. I appreciate the point made by defence counsel, but I am “permitted to compare the handwriting on two or more documents without having heard opinion evidence on the matter” (see para. 11 of Poole , supra , citing Abdi , supra ).

I can only reiterate that what to make of that comparison is a matter of weight, and is to be carefully considered. [ 24 ] In this case, I have carefully considered all of the surrounding circumstances, and all the evidence, and I make the following specific findings: 1) the signature on the Undertaking referred to was in fact made by Lance Littlecrow, who is the defendant in these proceedings.

The signature on the pawn ticket (Exhibit P-1) is markedly similar to the signature on the Undertaking, in that the “Lance” portion of the signature is written, and the “Littlecrow” portion of the signature is printed, on each document.

The two signatures are very unique in that respect, and are markedly similar irrespective of that as well; 2) each of the three points raised earlier respecting the birth dates, the address, and the photograph, might not cumulatively prove identity, although they do have significant persuasive value; and 3) when one adds the handwriting comparison to the equation, which I find to be very persuasive on its own, the cumulative effect of all the evidence satisfies me beyond a reasonable doubt on the identity issue. [ 25 ] I am satisfied beyond a reasonable doubt that Mr.

Littlecrow did in fact pawn the items, and that he knew the items were stolen. The Crown has established each of the elements of this offence beyond a reasonable doubt, and I find Mr. Littlecrow guilty of the offence as set out in the Information. I would add that at the time that the comparison was made in Court, Mr. Littlecrow did wish to change his plea to guilty, but after going through the plea comprehension inquiry, I did not accept that plea as I was left with the distinct impression that Mr.

Littlecrow, in making that plea, was in his mind accepting inevitability, instead of responsibility; his offered plea was not unequivocal, nor was it truly voluntary. I have not considered that offered plea in this matter. Although there is no doubt that the handwriting comparison was a significant piece of evidence to consider, this conviction is based on all of the evidence before me, and the cumulative effect of such evidence, irrespective of Mr. Littlecrow’s offered plea. ______________________________ B.G. Morgan, J