Her Majesty the Queen - v. -, 2020 SKPC 47

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 47 Date: December 3, 2020 Information: 991117621 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Albert Michael Power Appearing: Ms. Leona Andrews For the Crown Mr. Rod Simaluk For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Albert Michael Power, is charged with five offences, all allegedly having occurred on January 6, 2020.

He is charged with: (1) robbery; (2) committing an indictable offence with his face masked; (3) defrauding Roger’s Wireless Canada of Canadian currency less than $5000.00; (4) possession of currency, the property of the Royal Bank of Canada less than $5000.00, knowing it was obtained by the commission of an indictable offence; and (5) breach of probation by failing to keep the peace and be of good behaviour.

[ 2 ] The Crown elected to proceed by indictment on all counts. The accused elected trial by a provincial court judge. That trial commenced before me on October 26 and continued through October 28, 2020. I reserved my decision. [ 3 ] The evidence against the accused is substantially circumstantial. The accused testified and denied committing the offence. The ultimate issue is whether, taking into account all of the circumstantial evidence, and the exculpatory evidence advanced by the accused, the Court can be convinced beyond a reasonable doubt of the guilt of the accused.

THE EVIDENCE [ 4 ] At the commencement of the trial, some admissions were made. By consent, a DNA report was entered as Exhibit-P1. Items of clothing were seized from a washroom at the Cornwall Centre Mall in Regina. These clothing items were submitted for DNA analysis. The report indicates that sufficient DNA was obtained to get a female profile from a toque. Some male DNA was also obtained.

However, this DNA was not sufficient to get a profile from the male DNA or make any comparisons. [ 5 ] The accused provided a statement to Regina City Police which defence admitted was taken voluntarily so as to allow the Crown to cross-examine the accused on its contents. [ 6 ] The court was advised that there would be significant surveillance video recordings from the Royal Bank and from the Cornwall Centre introduced into evidence. The defence admitted the continuity of these video discs, and that the videos were not altered. The videos accurately depict what they show on January 6, 2020.

By consent, the group of surveillance videos were entered as Exhibit P-2. [ 7 ] The first witness called by the Crown was Ms. Jane Lakeman. She testified that in January of 2020, she was employed at the Royal Bank of Canada, at its branch located at the corner of Hamilton Street and 11 th Avenue. Further, that this branch is about one half block from the main front door entrance to the Cornwall Centre Shopping Mall. [ 8 ] On January 6, 2020, Ms. Lakeman was working as a front line advisor or teller. Part of her job was to deal with walk in clients.

She advised that at approximately 9:47 a.m. on January 6, a male came to her teller station and handed her a yellow note. That note indicated that the individual wanted $2,500.00, and had a gun. She advised that the normal procedure, when an individual wants cash, is for her to make an appropriate entry on the computer. Then she would go to the cash dispenser and receive the cash and provide it to the customer. In this case, she briefly stepped away from her teller station, and then realized she had not made any entry on the computer. She then approached the central cage to obtain the cash.

At that time, she used a code to advise the person in the cage that they were being robbed. The individual in the cage gave her $2,500.00 in bank notes. Part of what she was given was a “hold up bundle”. That hold up bundle contained 10 twenty dollar marked bills. That is, 10 twenty dollar bills, where the bank had previously recorded the serial numbers to those bills. [ 9 ] She returned briefly to her station. At that time, she noticed that the individual had picked up his yellow note. It was nowhere in sight. She handed the individual the $2,500.00 in cash.

The individual took that money and quickly departed through the 11 th Avenue exit. She believed that he went around the corner and went north on Hamilton Street. [ 10 ] She testified that she did not see a gun or any weapon. She described the individual as approximately 165 pounds, 5’10 or 5’11 tall. She said he had dark rimmed glasses and a balaclava, and wore his hood up. The individual did not say anything to her. [ 11 ] In court, the surveillance video from the bank was played, and she reviewed that with the court. One can see an individual wearing a dark coloured coat hand her a yellow note.

That individual wore quite a distinctive looking blue green toque. A substantial portion of the robber’s face is visible in the video when the teller is absent from her station. [ 12 ] In a second video clip, one can see the back of the robber approaching the door to exit the bank. There are two black pieces of tape or black stripes on the doorway. She advised that these black marks are placed at 5’6 and 6 feet above the ground, respectively. They are there to assist an individual in guesstimating the height of another person, such as the accused.

[ 13 ] A number of exhibits were also entered through Ms. Lakeman’s evidence. Exhibit P-2 is the bank’s surveillance video and Exhibit P-3 contains seven still photographs taken from that video. Exhibit P-4 is a handwritten document on which is recorded the serial numbers for the 10 twenty dollar bills that formed the hold up bundle. Exhibit P-5 is a photograph of four Canadian twenty dollar bills. The serial number of each bill is clearly displayed. By comparison to Exhibit P-4, one can easily ascertain that these four twenty dollar bills formed part of the hold up bundle. Exhibit P-6 is a bundle of four photos.

Photos 1 and 2 are of the front and back of a dark coloured men’s jacket or coat. Photo 3 is of a dark coloured scarf and photo 4 is of a blue green toque. Ms. Lakeman testified that these items of clothing look like the items of clothing worn by the robber on January 6. [ 14 ] Under cross-examination, the witness advised that Jerrene was in the cash cage. Ms. Lakeman said to Jerrene: “Lisa-now- now”. This was part of the protocol and communicated they were being robbed. [ 15 ] Ms. Lakeman advised that she had never been the victim of a robbery before, and was very scared.

She said she had only a brief glimpse of the robber. She saw his eyes and glasses. She was not asked to do a photo line-up. [ 16 ] She testified that she believed that when the robber left the bank, he went north on Hamilton street. She said she never saw him again after he left the bank. [ 17 ] She was cross-examined about her statement to the police. She agreed that she said the robber wore black gloves on both hands, wore dark rimmed glasses, had brown eyes, a dark complexion and thin build. [ 18 ] The next witness was Ms.

Jerrene Congson, who testified that in January of 2020, she worked at the Royal Bank of Canada, 11 th and Hamilton Branch. On January 6, 2020, she was working at the cage. Jane came to her area and asked for money. Ms. Congson looked up and thought they were being robbed. She explained why she thought this in cross-examination when she confirmed she heard Jane give the signal they were being robbed by saying “Lisa-now-now”. She saw a guy by Jane’s wicket standing and waiting. She described him as wearing a black jacket and a scarf. In addition, she stated she saw a tattoo on his neck, on the left side.

She could not say what the tattoo was. The video, clip three, was played for her. She indicated that when Jane asked for money, she looked up for a second. She could see the robber at Jane’s wicket, wearing a blue green toque. The robber had a light beard “around his mouth”. [ 19 ] In cross-examination, she indicated she heard Jane say: “Lisa-now-now”. She again described the accused as wearing a black coat and scarf and a blue hat. She indicated he was approximately 5’6 inches tall and had a light beard. She indicated the scarf covered his face below the lips. She saw the light beard above the scarf.

At some time, the scarf was pulled up. At that time she saw his neck and saw the tattoo. She indicated the tattoo was faded in colour, and was a washed out blueish green colour. At that time she was approximately 20 – 25 feet from the robber. She had never seen the robber before. After receiving the money, he quickly left the bank, turned right and proceeded west on 11 th Avenue. [ 20 ] She indicated that the tattoo was on the side of his neck, below the ear and below the jaw line.

It was “a little further to the back”. [ 21 ] Immediately following this witness’s testimony, Crown counsel asked to have the accused show his neck on the left side. He pulled down his collar. On the lower neck, below the ear, was a small blueish or blueish green tattoo. I would describe it as roughly oval or oblong in shape: perhaps one and one-half inches by one inch in size. [ 22 ] The next witness was Constable Ryan Buhr, of the Regina Police Service. He has been with the RPS for nine and a half years.

In January of 2020, he had been in the forensic unit for approximately 11 months. [ 23 ] On January 6, 2020, he went to the RBC and was advised of the robbery. He was further advised that the suspect entered the mall and went to a washroom by the food court. Buhr attended to that washroom and removed the garbage can. In it, below some paper towelling he located a jacket, scarf and toque. To him, it appeared that the paper towels were purposely laid across the clothing to attempt to hide the clothing items.

Photos he took of the items of clothing are contained in Exhibit P-6. [ 24 ] The police sent the toque to the forensic laboratory, to look for DNA. Later they received a DNA report. That DNA report is Exhibit P-1.

[ 25 ] When asked to do so, he checked his notes. He had recorded in his notes that it was at 10:57 on January 6 that he found the items in the garbage can. [ 26 ] Under cross-examination, he agreed with defence counsel that the clothing contained female and male DNA, but there was not enough DNA to match that DNA to the accused. [ 27 ] The next Crown witness was Mr. Yang Chen. He testified that on January 6, 2020, he worked at a kiosk in the Cornwall Shopping Centre. Generally, he worked from 9:00 a.m. to 6:00 p.m. The kiosk was owned by Chatr Mobile, and displayed a sign for Rogers.

I gather that Chatr Mobile is in some way affiliated with Rogers, and can link individuals to the Rogers network and sell cell phone services for Rogers. [ 28 ] The witness said that on January 6, a fellow came to the kiosk and wanted to pay cash for cell phone service. The witness could not remember what the individual looked like. [ 29 ] The witness said that he had to open an account for the individual. To do so, he asked the individual to supply two pieces of identification, and the individual did that. The witness could not recall what pieces of identification this individual produced.

However, the witness did open an account in the name of Albert Power. In the days following this incident, at the request of Regina City Police, the witness utilized the company’s computer system and printed off the customer profile for Albert Power, which was entered as Exhibit P-8. [ 30 ] Mr. Chen indicated that the individual had previously purchased a cell phone from another shop. Mr. Chen had difficulty opening the phone and installing the sim card. He sent the individual back to the other shop to install the sim card. The individual did that and returned to his shop a short time later.

The witness then connected him to the Rogers network, and the individual purchased $50.00 worth of minutes for the cellphone. The $50.00 worth of minutes, plus $10.00 for the sim card and activation fee, and taxes, brought the total to approximately $66.00. The witness testified that he distinctly recalled the individual paid $80.00 in cash, by paying with four twenty dollar bills. [ 31 ] In the days following this incident, Mr. Chen received a number of visits from Regina City Police officers. One of the police officers asked him if they could look at the cash in the till.

After the police requested and received permission to examine the cash that Mr. Chen had in his till, he advised them that he still had his cash deposit bag which also contained cash. He and the police officer looked in the cash deposit bag, where the officer located four twenty dollar bills. The police seized the four twenty dollar bills, which were identified by Mr. Chen as the ones shown in the photo which is Exhibit P-5. [ 32 ] The witness reviewed the video of his kiosk on January 6. One can see the witness at the kiosk.

One can also see an individual approach the kiosk and speak to the witness, then leave and return a few minutes later when he is again dealt with by the witness. [ 33 ] The witness was shown photos contained in Exhibit P-9. The witness said he sees very many faces at that kiosk. He could not say whether the person in the picture was the same person that he dealt with on January 6. [ 34 ] Under cross-examination, the witness agreed that the police came to visit him on a number of occasions. He agreed that he gave a statement to the police on January 10, 2020.

He could not recall which day the police officers visited with him, and looked in the till and deposit bag. When defence counsel suggested to him that they did this on January 7, 2020, at 5:56 p.m., the witness agreed with that. Mr. Chen agreed that many of his customers paid cash, in all denominations, for their product. He stated that they would normally do a bank drop or a bank deposit once or twice a week. They maintained a $200.00 float for the till. At the end of each day, the witness would remove extra cash from the till, and place it in the deposit bag.

Sometime later, he would take the bag to the bank for the deposit. [ 35 ] The next witness was Kaleem Hussan. Mr. Hussan testified that he has worked for Cell Style for six to seven years. That company has three kiosks in the city, including one in the Cornwall Centre. On January 6, 2020, around 9:45 a.m., a man approached his kiosk to purchase a telephone. He specifically recalled this individual because the individual had kind of a funny looking sort of drawn on mustache. The individual bought a Motorola phone. He felt that the purchase transaction was unusual, because it was very fast.

Usually, a prospective customer will ask a lot of questions, and perhaps look at several phones. In this case, the individual involved looked at one phone and asked the price. He paid $160.00 cash, and was gone quite quickly. Later, police approached him and showed

him a picture. He remembered that the picture he was shown was the individual that he sold the phone to. However, in court, he was shown Exhibits P-7 and P-9. He could not recall if those were the same pictures that the police showed to him, or contained pictures of the individual that he saw. [ 36 ] He reviewed the surveillance video with the court. One can see an individual approach the kiosk. I made the note that it appeared to be the same person that approached the Rogers kiosk. The individual made the purchase fairly quickly and left. A few minutes later he was back. Mr.

Hussan said he thought the individual came back and asked him to install the sim card. The individual then left the kiosk. [ 37 ] The witness said it was not unusual for an individual to purchase a phone with cash. Mr. Hussan described the individual making the purchase as 5’8 to 5’10 inches in height and “skinny”. [ 38 ] Under cross-examination, the witness said he generally worked Monday to Friday, at one of the three kiosks in the city. He would start in the morning. At around 11:00 a.m. to noon, another individual would come and join him.

Following that, at a convenient time, he would be able to take a break for lunch. [ 39 ] The witness indicated that on each day, at the end of the day, he would put the cash from sales in an envelope. Thereafter, the general manager would come by and pick up the envelope for deposit. [ 40 ] The next witness was Constable Jordan Panchuk, of the Regina City Police Service. He has been with the Regina City Police for 10 years. On January 6, 2020, at 9:59 a.m., he was dispatched to the Royal Bank of Canada on 11 th Avenue and Hamilton Street for a reported robbery.

At the bank, he spoke to a number of bank employees and police officers. He got screen shots from the bank of the robber, which he sent to other police officers. They ascertained that the robber had glasses, wore a jacket, scarf and toque. The toque was a distinctive blue green toque. He also ascertained from bank employees that the robber appeared to walk west on 11 th Avenue to the Cornwall Mall entrance. [ 41 ] Constable Panchuk went to the Cornwall Mall, and spoke with the director of mall security, Patrick Parker.

By watching the videos, they ascertained that the robber entered through the 11 th Avenue entrance, facing Scarth Street. The robber then went up the escalator to the food court area, and entered a washroom close to the food court. (As a result of this information, Constable Ryan Burr was dispatched to that washroom, where he later located the garbage can and seized the clothing shown in Exhibit P-6.) [ 42 ] The officer then worked with the director of mall security, and obtained from him a number of surveillance videos. The officer advised that all of these surveillance videos have date and time stamps on them.

However, the videos are from various systems, and are not all attached to the same clock. As a result, as one moves from one video to another, there may be a small, one or two minute difference. [ 43 ] The officer also reviewed a number of those videos with the court, and assisted in putting together quite a comprehensive timeline. From those videos, one can see the following events: firstly, there was a video camera across 11 th Avenue and facing the Scarth Street entrance to the Cornwall Centre. On January 6 at 9:49 a.m., one can see the suspect in the distinctive blue green toque with his back to the camera.

He crossed 11 th Avenue, coming from the south, and once at the north side of 11 th Avenue, he turned to his right and walked east on 11 th Avenue. He disappeared from view. At 9:52:44, the same suspect appeared in the same video camera. At this time he was walking west on 11 th Avenue, and turned right toward the Scarth Street entrance to the Cornwall Mall. He entered the mall. [ 44 ] At 9:53:31, from a camera inside in the mall doors, one can see the same suspect with the blue green toque.

That suspect went by the Christmas tree and up the escalator. [ 45 ] There is another camera showing the hallway and the entrance to the men’s washroom near the food court. At 9:53:14, one can see the same suspect, wearing the distinctive blue green toque entering the men’s washroom. During the next approximately three minutes, three individuals entered the washroom and two individuals left the washroom. At 9:56:16, an individual left the washroom. Exhibit P-7 is a still shot of the individual leaving the washroom at 9:56:16.

This individual is wearing dark pants, a purplish or a brownish sweater, and a Nike ball cap. He is clearly wearing dark rimmed glasses and has a mustache. Constable Panchuk testified that this individual was wearing the same or very similar pants as the robber going into the washroom wore. In addition, this individual was wearing the same or very similar shoes as the robber wore going into the washroom.

[ 46 ] Via video, the officer then tracked the individual shown in Exhibit P-7 moving about the mall. At 9:58, the suspect in the Nike hat took the escalator down to the main floor. At 9:58, that individual walked past the Rogers kiosk going west. At 10:01:51, that same suspect was at Cell Style. At 10:06:40, he left Cell Style. At 10:08:50, that same individual was at the Rogers kiosk to make a purchase. At 10:19:33, the individual left Rogers kiosk, and at 10:20 was back at Cell Style. At 10:23:33, that individual left Cell Style and walked south through the mall.

At 10:24 and 10:25, he was seen on video near the front entrance or exit (Scarth Street exit) of the mall. For a short time he was seen in a line up near Tim Horton’s. At 10:28:14, that same individual with the Nike cap was seen exiting the mall to 11 th Avenue. At 10:28:24, the individual with the Nike cap got into a Co-op Taxi sitting right in front of the Scarth Street entrance to the mall.

The taxi then left and travelled west on 11 th Avenue. [ 47 ] Exhibit P-7 contains the still photograph of the individual with the brownish purplish sweater, the Nike hat, dark rimmed glasses and mustache, as that individual left the washroom at 9:56. [ 48 ] Constable Panchuk advised that from the director of security for the mall, Mr. Parker, he obtained the video for the camera outside of the men’s washroom for the entire period from 9:00 a.m. until 10:00 a.m. on January 6, 2020. That video was played in its entirety for the court.

By my count approximately 37 people entered and left the washroom during that one hour period. The video was quite unremarkable except for these significant observations. Firstly, at 9:53:14, the robbery suspect entered the washroom. He was wearing the same coat and the same distinctive blue green toque. At no time does anyone see that suspect wearing those same clothes leave the washroom. The officer advised that he and the director of mall security watched the video for some time after 10:00 a.m. They observed no suspect wearing those clothes leaving the washroom.

Of course those clothes were seized by Constable Buhr from the garbage can in that men’s washroom. [ 49 ] The second significant observation is that from 9:00 a.m. on, we do not see the individual shown in Exhibit P-7 enter the washroom. [ 50 ] Constable Panchuk testified that following their review of these videos, he concluded that the robber was the same person shown in Exhibit P-7. Further, that the robber entered the washroom, removed certain articles of clothing, or donned other articles of clothing. He then left the washroom, and is shown leaving the washroom in Exhibit P-7.

Constable Panchuk further testified that they later ascertained from Mr. Chen and Coop Taxi that the individual shown in Exhibit P-7 is the accused Albert Power. He identified the accused Albert Power in court. [ 51 ] Under cross-examination, the constable confirmed that Exhibit P-7 is a picture of the accused Albert Power, and that as part of their investigation, he concluded that Albert Power was the robber. Having reached that conclusion, he then utilized the video system and pursued Mr. Power around the mall via video. He agreed with defence counsel that he did not pursue any other individual around the mall.

He agreed he did not watch the video between 10:00 and 11:00 a.m. Further that he did not investigate any other person that left the washroom. He also agreed with defence counsel that it is possible that other persons were in the washroom and remained in the washroom, when the person shown in P-7 left the washroom. [ 52 ] Also under cross-examination, the officer indicated that the person shown in Exhibit P-7 wore the same shoes or very similar shoes and the same pants or very similar pants as the robber. The pants were dark blue jeans or sweats.

The shoes were a slip on or loafer type of shoe, and were dark brown or black. [ 53 ] Counsel suggested that it is possible the robber remained in the washroom past 10:00 a.m. The witness advised he did not believe so. The officer agreed there is nothing particularly distinctive about the robber’s walk or the individual pictured in Exhibit P-7. In re-examination, the officer stated that he saw no one else in the video who generally looked like the accused. Further that he had never dealt with the accused before, and had no reason to focus upon him. [ 54 ] The next witness called was Patrick Parker. Mr.

Parker testified that in January of 2020, he worked as the Director of Security at the Cornwall Centre. He had been in that position for about three years, and was in charge of oversight and operation of security at the mall. A large amount, probably about fifty percent of his time at work involved him watching security videos.

He has been involved in the investigation of many matters ranging from shoplifting to violent crimes. [ 55 ] On January 6, 2020, he scanned a large amount of video from all over the mall, watched some video with individuals from Regina City Police, and in particular Constable Panchuk, and turned over a number of discs containing video to the police. He received screen shots of the robber inside the Royal Bank. He scanned the screen shots, and determined that at 9:49 a.m., the robber, wearing the

same dark jacket and toque crossed 11 th Avenue, then headed east on 11 th Avenue. He determined that at 9:52:46, the same individual walked back into view of the same camera, then entered the mall at that Scarth Street entrance. He then followed that individual through various cameras to the washroom area. [ 56 ] He believed that the robber left the washroom at 9:56:20, and that same individual is shown on Exhibit P-7. Mr. Parker testified that he backed up the video of the washroom camera to 6:00 a.m., the time when the mall opened. He scanned and watched the video from 6:00 a.m. until 11:00 a.m.

At no time did he see the individual shown in Exhibit P-7 enter that washroom. He concluded that the robber and the person shown in Exhibit P-7 are one and the same person. [ 57 ] On cross-examination, Mr. Parker advised he is no longer in security at the mall. He was in that position for three and a half years. [ 58 ] He advised that people start coming into the mall around 6:00 a.m. The traffic gradually increases.

He agreed with defence counsel that there was nothing particularly distinctive about the robber’s walking pattern, or the individual shown in P-7. [ 59 ] He was asked about watching the video of the washroom entrance area from 6:00 a.m. until 11:00 a.m. He backed up the video until 6:00 a.m. On that system, they can speed up or fast forward until they hit real time. He would speed up the video to move through dead times. He agreed with defence counsel that if one is going too fast on fast forward, he could miss something. [ 60 ] He said he had the screen saver and description of the robber from the City Police.

Via video, he followed that individual to the washroom. That then really focused his attention on people leaving the washroom. He stated he believed that he watched the video of the washroom entrance until approximately noon. [ 61 ] He agreed with defence counsel that at some time police advised him that they had found the robber’s clothing in the washroom. He did not know just when they advised him of that. He also agreed that sometimes the tape does not show distinct colours. [ 62 ] Sergeant Colin Glas testified that he has been with Regina City Police for 19 years.

On January 8, 2020, he was working in the police station, and part of his duties involved administration of the taxi video program. Sergeant Serrano advised that on the morning of January 6, at approximately 10:30, a suspect left the main entrance of the Cornwall Centre, and got into a Co-op Taxi, immediately in front of the mall. Sergeant Serrano had met with Co-op Taxi, and asked that they have the driver of that cab come to the police station. [ 63 ] On January 8, 2020, the driver came to the front desk of the Regina Police Service.

Sergeant Glas put the taxi in one of the garage bays, and then downloaded video from the taxi’s system to the police system. That video was played for the court and is an exhibit before the court. One can easily see that the cab is parked immediately in front of the mall. At 10:25 a.m., a male came from the mall and seated himself in the front seat of the taxi-cab. The male had a ponytail, and was wearing a Nike ball cap. He was also wearing a brown shirt. He had dark rimmed glasses and a mustache.

I immediately made a note that this was clearly the same individual as is shown in Exhibit P-7. [ 64 ] The taxi then drove to the Empire Hotel, and stopped for a brief time, while the male left the cab and went into the hotel. He returned with a case of beer which he placed in the backseat of the vehicle, and then returned to the front seat of the cab. The cab then drove to 1238 Retallack Street. At 1238 Retallack Street, the cab stopped, the male paid for the ride and got out. [ 65 ] The officer identified a photobook containing six still photos, which was entered as Exhibit P-9.

The Sergeant testified that these are still photos made of the individual shown in the taxi-cab video. They are of course made from that same video. The officer was also shown Exhibit P-7. He testified he believed that Exhibits P-7 and P-9 contain photos of the same individual. He was asked about the colour of the clothing in Exhibit P-9 being somewhat different than in P-7. He advised that the cameras in the taxis are infrared cameras, designed to take pictures of individuals at night, when there is very little light in the vehicle.

The infrared cameras tend to lighten colours worn by individuals, and give “a kind of washed out look”. He said the infrared cameras also tend to lighten facial features and lighten the colour of facial hair. There was no cross-examination of this witness. [ 66 ] Sergeant Claudio Serrano testified that he has been with Regina Police Service for 20 years. In January of 2020, he was in the major crimes unit. On January 7, 2020, he was advised of a robbery that occurred a day earlier. He read the file, spoke to some of the

officers, and reviewed some of the video. He asked the officers if they could identify the suspect shown in Exhibit P-7. I gather that at that time, they could not. He ascertained that the suspect left the mall and got into a Co-op Taxi. He made contact with Co-op Taxi. [ 67 ] He testified that he went to the mall and first went to the Rogers kiosk. He met Mr. Chen and showed him Exhibit P-7. Mr. Chen remembered the individual, and advised that individual bought cell service, and paid with four twenty dollar bills. He produced the customer profile for the individual and gave a copy to Sergeant Serrano.

That customer profile is Exhibit P-8. [ 68 ] The officer testified that he had the list of serial numbers for the bills in the hold up bundle. Mr. Chen and the officer looked in the till drawer at the twenty dollar bills. The officer found four twenty dollar bills with the serial numbers from the hold up bundle and seized those twenty dollar bills. [ 69 ] The Sergeant attended at Co-op Taxi. He gave them the approximate time when a Co-op Taxi picked up the individual at the Cornwall Centre. The Co-op Taxi office gave the officer a printout from their computer records. That printout was entered as Exhibit P- 10.

It shows that Co-op Taxi received a phone call from 306-501-9733 from a person identified as Albert. The cell phone number stated is the same one identified on Exhibit P-8, the customer profile related to the purchase of the cell service. [ 70 ] The next day, the officer met with Mr. Hussan at the Cell Style kiosk in the Cornwall Mall. Mr. Hussan remembered the individual, and the transaction. He described the individual as “having a painted on mustache”. He said it was a cash transaction. [ 71 ] Subsequently Sergeant Serrano obtained and viewed the security videos from the Royal Bank.

He reviewed them with the court during his evidence. He pointed out the robber’s distinctive blue toque, a black jacket and dark pants. He pointed out brown or black loafers. In the video of the robbery, he pointed out that the robber’s jacket was open. At a couple of points on the video one can clearly see a maroon or purplish sweater worn underneath the jacket. The officer believed this was the same sweater worn by the individual in Exhibit P-7. [ 72 ] He reviewed a number of the videos in court. [ 73 ] In cross-examination, Sergeant Serrano confirmed he dealt with Patrick Parker, the director of mall security.

He saw the picture of Exhibit P-7, and believed that was the robber. He agreed with defence counsel that he did not investigate any other person who entered or left the washroom. No one else piqued his interest. He also agreed with defence counsel that the individual in P-7 was walking fast as if he had a purpose. However, there was no limp or anything particularly distinctive about the walk. He also agreed that several people entered and exited the washroom. He said he saw more video than what has been entered as an exhibit. He could not say how much more video he watched.

He also agreed with defence counsel that once the police have a suspect, they often focus on and investigate that suspect. [ 74 ] The Crown entered a probation order against Albert Michael Power dated September 23, 2019, as Exhibit P-11. The accused was placed on probation for a period of 12 months, and remained on probation on January 6, 2020, the date of the alleged offence. The Crown then closed its case. [ 75 ] The only witness called for the defence was the accused, Albert Michael Power. He testified that he is 55 years old. He was born in Newfoundland, but has lived in Regina since May, 2016.

He has worked at a number of seasonal and labour jobs. [ 76 ] On January 6, 2020, he lived at 1850 St. John Street in Regina. On that day, he got up at around 6:00 to 7:00 a.m. He said he had not slept a lot. He had made plans to do his best to buy a cell phone and to visit some friends who lived in north central Regina. He planned to buy a cell phone from a kiosk in the Cornwall Shopping Centre. He left home and walked to the Cornwall Centre. [ 77 ] On the way, he had a flare-up of his colitis condition. He testified that in 2009, he was diagnosed with colitis. Since 2013, it has been treated with medication.

A copy of a letter, from Dr. Chris Rueda-Clausen to his legal counsel, dated October 1, 2020, was entered as Exhibit D-2. The letter states in part that Mr. Power suffers from “ulcerative colitis with proctocolitis, this is an autoimmune inflammatory condition of the colon that produces inflammation ulcers, diarrhea, abdominal pain”. According to Mr. Power’s evidence, he was not suffering this flare-up when he left for the Cornwall Centre, but did suffer the flare-up on the way to the Cornwall Centre. He indicated he was “feeling pretty miserable”.

He said he felt weak, bloated, had stomach cramps, diarrhea and a lot of bleeding. There was blood and mucus in his colon. It was pretty bad. It felt like he had broken glass inside of him. He was very uncomfortable.

[ 78 ] He said that he walked from his home near 11 th Avenue and St. John Street to the mall. This is about a 15 minute walk. He arrived at the mall at about 8:45 a.m. He entered the mall through the 11 th Avenue entrance, and “booked it to the washroom”. He said he did not make it. I take it that he had a bit of an accident with the diarrhea. He indicated that he had rolled up toilet paper between his cheeks. “Kind of a homemade diaper.” [ 79 ] He said once in the washroom, there was no stall available. He waited. He then jumped the queue and got into a stall. He said he sat on the toilet for a while.

He could not stand up for a while. He then got up and went to the sink to wash up. He immediately went back to sit on the toilet. Eventually he felt well enough to leave the washroom and did so. He indicated that according to the video, he left the washroom at 9:56 a.m. He indicated he may have been in the washroom for more than an hour. [ 80 ] Exhibit P-7 was shown to him. He admitted that the photograph in Exhibit P-7 is a picture of him leaving the washroom. [ 81 ] He also admitted that the video tracked him moving around in the mall. He went to Cell Style first and purchased a phone.

He indicated he did not know what kind of phone he wanted. The phone he found was in his price range, so he made the purchase. He said he paid for the phone with cash. The clerk said he paid with eight twenties. He could not recall the denominations used. He said he could not recall the exact time of purchase. [ 82 ] After Cell Style, he went to the Rogers kiosk. He got a plan for Chatr from there. He could not keep his old phone number, which he had hoped to do. He paid cash for the phone and minutes and left. [ 83 ] He was asked where the money came from.

He indicated that in December, he was in the Correctional Centre. After release, his girlfriend and another fellow were at his home at 1850 St. John Street. He kicked them out. A short while later a guy came back to the home looking for his bike. Mr. Power did not give him any bike. But, he looked downstairs, where he found nine mountain bikes, together with wheels and other accessories. He said he sold all of them.. He sold them for about $40.00 to $60.00 per bike.

He said he probably made $300.00 to $350.00. [ 84 ] He testified that on January 6, after purchasing the minutes, the fellow could not open the phone. He was sent back to Cell Style so the employee there could open the phone and install the sim card. Sometime after that, he bought a muffin. Then he left the mall and took a cab to the Empire Hotel. “Then to the hood”. He said he did not think he stayed late in the hood. [ 85 ] Again he was asked about Exhibit P-7. He said he was wearing a jacket, jeans and a ball cap. The jeans were denim jeans, black or navy, but he could not say which colour.

He said under the jacket, he probably had a couple of layers. He indicated that he owns a pair of sneakers and dark shoes. The shoes are dark brown and have laces. [ 86 ] He was asked about his mustache. He indicated it appears dark. He usually dyes his hair, and often dyes his mustache. He stated that his hair and mustache are not dyed now, as he has been in custody. He normally keeps his hair long and has it tied in a ponytail. He would have had it tied in a ponytail on January 6. [ 87 ] He was asked about his tattoo. He indicated that he had it since the mid-90’s.

The tattoo is the tongue and lips from the Rolling Stones albums. It was black and red. The colour has now faded. (I saw no black and red in it at all, only bluish green.) Mr. Power stated lots of people have tattoos on their neck. [ 88 ] Lastly, he stated that he has never been in the Royal Bank, and did not rob it on January 6. [ 89 ] Under cross-examination, he agreed that he is shown coming out of the washroom at 9:56 a.m. He agreed he purchased a cell phone and paid cash. He agreed he went to Rogers and paid cash there. He agreed that he eventually called a cab.

He indicated that he believed he met someone and bought a muffin. [ 90 ] He was questioned about going to a garbage can and putting something in the garbage can. He indicated he believed he was

carrying a paper towel from the washroom. The video of him leaving the washroom at 9:56 was replayed. I did not see anything in his hand at that time. [ 91 ] He indicated that after his second visit to Cell Style (to install a sim card), he walked towards the front door of the mall. He indicated that at some time, he sat on a ledge and ate a muffin. He also called for a taxi. He said he had to ask a fellow from A.A. for the number for the taxi. [ 92 ] He was questioned about and insisted he arrived at the mall at approximately 8:45 a.m., prior to the start of the video.

He insisted he went to the washroom at that time. He insisted the other witnesses were incorrect in saying that he did not enter the washroom. He insisted he got there before 9:00 and was there for over an hour. He again stated that he was not feeling well, but pressed on at the mall. This happened even after one hour in the washroom. He said that after the colitis attack “runs its course” he can get a break and manage for a while. He stated he was not feeling 100% but felt well enough to visit friends. Counsel suggested that he must have been weak from the loss of blood, and he said that he was on iron pills.

He agreed with counsel that he should not be going drinking immediately after a colitis flare-up. [ 93 ] He stated that his height is 5’9 inches tall and his weight is approximately 150 pounds. [ 94 ] He was asked about the blueish green tattoo on his neck, described by the bank teller. He instantly became defensive and argumentative. He said it was impossible for the teller to see the tattoo.

He asked for the scarf so that he could demonstrate how and why it was impossible for the teller to see it. [ 95 ] He agreed with counsel that when he was interviewed by the police, he did not say anything about going to the washroom on January 6. He agreed that he probably told them he did not hang around downtown. It was suggested to him that he denied purchasing a cell phone. He stated that he was not sure about that. [ 96 ] Counsel asked about him selling stolen bikes. He denied he was selling stolen bikes. He denied the bikes were stolen, saying they were in his house and they were his property.

He stated that he sold the bikes for $40.00 to $60.00 each. Further, people paid with twenties, “I imagine”. [ 97 ] He was shown the taxi video and questioned about it. He denied he had any facial hair. He clearly did. It was suggested that when he paid for the cab with a twenty dollar bill, he had a one hundred dollar bill in his other hand. He denied there was a one hundred dollar bill.

I could not tell from the video, the denomination of any other bill that he had in his other hand. [ 98 ] When asked about the four twenty dollar bills from the bank robbery being seized from the Rogers kiosk, he said this was coincidence. He also said that the officers were mistaken, in concluding that he was the bank robber. He said they were absolutely wrong. The defence case was closed. ANALYSIS [ 99 ] Both counsel made extensive and helpful arguments. Those arguments focused on the evidence and whether the evidence proved beyond a reasonable doubt that the accused had committed the robbery on January 6.

EVIDENCE OF THE ACCUSED IN THE MALL AFTER HE LEFT THE WASHROOM [ 100 ] Much evidence was presented about the individual shown in Exhibit P-7, leaving the washroom at approximately 9:56 a.m. Much evidence was presented tracking that individual in the Cornwall Centre, thereafter leaving the mall and taking a cab to the Empire Hotel and on to a home on the 12 block Retallack Street. Later, the accused took the stand and admitted he is the male person in the videos, and the videos are accurate.

This evidence is now not really controversial and I can make the following findings of fact: The accused Albert Power left the washroom near the food court at approximately 9:56 a.m. At that time, he was wearing a brownish or purplish sweater or jacket and a Nike ball cap. He was wearing dark rimmed glasses and has a mustache over the top of his lip and a narrow part of the mustache coming down on each side of his mouth. This appearance and this clothing remained unaltered for the rest

of the relevant time period on January 6. He walked through the mall and purchased a cell phone at Cell Style. He paid for that phonewith $160.00 in cash, being eight twenty dollar bills. He then went on to the Rogers kiosk, where he purchased a plan from Chatr. Hepaid for that with cash, using four twenty dollar bills. He briefly returned to the Cell Style kiosk to have a sim card installed by theemployee there. He left Cell Style for the second time at approximately 10:23. He walked toward the front door of the mall, and calledfor a Co-op Taxi.

At approximately 10:28 a.m., he left through the front door of the mall and entered a Co-op Taxi. From there, he wasdriven to the Empire Hotel where he purchased a case of beer. The cab then drove him to a residence on the 12 block Retallack. Hepaid cash for the cab, and left the cab at approximately 10:35 a.m. [101] In addition, I would find as a fact that some time on January 6, 2020, an individual made a purchase at the Rogers kiosk, andwhen making that purchase, paid with four twenty dollar bills that were part of the hold up bundle. At the end of the day on January 6,2020, Mr.

Chen, at the Rogers kiosk, divided the $200.00 float for the till from the rest of the cash obtained through the day. At thattime, he placed that cash in his deposit bag. Later in the day on January 7, 2020, Sergeant Serrano attended at the kiosk and spoke to Mr.Chen. They opened the deposit bag. Sergeant Serrano located and seized four twenty dollar bills that were part of the hold up bundlefrom the Royal Bank.

IS THE EVIDENCE OF THE ACCUSED, ALBERT POWER, BELIEVEABLE? [102] In R v M.(P.N.) (1996), (SK CA), 141 Sask R 221 [M.(P.N.)], the Saskatchewan Court of Appeal applied R vW.(D.) (1991), (SCC), 63 CCC (3d) 397 (SCC), and enunciated a four step process to examine the evidence. Step one ofthat process is: “if you believe the accused, obviously you must acquit.” So the first question I ask myself is whether the accused’sevidence is believable. In my view, it is not believable. [103] I begin by noting that if Mr.

Power’s evidence is to be believed, he must have been wearing the same clothes when he left homeat approximately 8:30 as we see him in when he takes the cab. The best picture of that clothing is contained in Exhibit P-9, the videofrom the cab ride. The clothing does not appear to be heavy winter clothing. The clothing appears to be a light jacket over top of asweater. In the cab picture, he is not wearing a toque, only a ball cap. We are dealing here with incidents that occurred on January 6,2020. These incidents occurred in the dead of winter in Regina. On that day, according to his evidence, Mr.

Power left his home atabout 8:30, when, at best, it would just be getting light. While not feeling well he walked lightly clothed for at least 15 minutes to get tothe mall. [104] According to him, on the way, he suffered a severe attack or flare-up of his colitis. In his words, he was feeling prettymiserable. He felt weak and bloated. He had stomach cramps, diarrhea and a lot of bleeding. There was a lot of blood and mucus in hiscolon. He felt pretty bad. He described it as feeling like he had broken glass inside him. He felt very uncomfortable. In spite of all ofthis, he carried on. He did not turn back.

He got to the mall and immediately went to the washroom. He said he didn’t make it. Hejumped the queue and got into a stall. He then was in the washroom for more than an hour. He could not even stand up for a while. Eventually however, it would appear he made a near miraculous recovery. Eventually he cleaned himself up and at approximately 9:56,he left the washroom.

In the following period of about 30 to 45 minutes, he wandered about the mall, purchased a cell phone and a planwith minutes, purchased a muffin and a coffee, called a cab, took the cab to the Empire Hotel where he purchased a case of beer and thenrode on in the same cab to his friend’s home on the 12 block Retallack, to visit with his friends and apparently drink beer. Policewitnesses pointed out that as he walked about the mall, he walked quickly and often passed people. Those witnesses described his walkas quick and “with a purpose”.

In my view, that quick and purposeful walk was not at all what I would expect from a person sufferingthe severe pain of a colitis flare-up. [105] In summation on this point, I do not believe that he was feeling badly; I do not believe he had a flare-up of colitis or that he wasin the washroom for an hour. I also do not believe that he made a miraculous recovery and was able to do all of the things he didimmediately after the flare-up. In addition, the accused was present in Court and saw all of the surveillance videos, including those ofthe robber at the bank and then going directly to the washroom.

It is clear and beyond doubt that the accused and robber were in thewashroom at the same time, for approximately three minutes before the accused left the washroom. If they were two separate people, Ithink it likely the accused would have seen the robber in the washroom, and mentioned that in his evidence. No mention of this wasmade by the accused. [106] In cross-examination by Crown counsel, he was asked about the tattoo that was seen by the witness, Ms. Congson. His reactionto these questions was very strange and curious.

I would have thought he might have said something like “I don’t know what she saw, asI wasn’t there”. He said nothing of the sort, and was very defensive. He wanted the scarf so he could try to show us that it would beimpossible for Ms. Congson to see the tattoo. He did not deny he was there, but simply wanted to demonstrate that the witness could nothave seen the tattoo. [107] Even more importantly, he agreed with Crown counsel that he did not mention to the police anything about him being in the

washroom. He agreed he told police that he did not hang around downtown. He did not disagree that he denied that he had even purchased a cell phone. Clearly at that time, he felt he should not admit to being in the mall. Later, when he ascertained the nature of the video evidence, he changed his story. [ 108 ] In my view, the entirety of Mr. Power’s evidence is unbelievable. I cannot dismiss the charges on the basis of his evidence.

IS THERE SUFFICIENT EVIDENCE TO PROVE THE CHARGES AGAINST THE ACCUSED BEYOND A REASONABLE DOUBT? [ 109 ] In the M.(P.N.) case, the Court of Appeal described the fourth and final step as follows: “fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.” [ 110 ] To answer this question, I must consider a significant number of pieces of circumstantial evidence.

In R v Ballantyne , 2015 SKCA 107 , 329 CCC (3d) 127 [ Ballantyne ] and R v McKay , 2017 SKCA 4 , the Court indicated that I must not consider these circumstances individually or in a piecemeal fashion. Examination of such evidence in an individual or piecemeal fashion may result in the dismissal of such evidence because the individual circumstances appear innocuous or trivial. Rather, the Court is required to consider all of these different circumstances with the whole and with the totality of the evidence.

In the case of R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000 the Court indicated that the judge must consider all of the evidence and “that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits.” It then went on to elaborate as follows: A view that inferences of innocence must be based on proven facts is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts.

The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence.

Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [ 111 ] In making their arguments on the evidence, neither counsel particularly focused on the video, particularly the video of the robbery itself. However, in the case of Ballantyne , the Court spoke of the video evidence as independent evidence capable of corroborating evidence given by other witnesses. As a result, I start with Exhibit P-2, the surveillance video of the robbery.

That video is quite short and the robber’s face appears for only brief intervals. The tellers, involved with other matters, had very brief periods of observation, and were not able to identify the robber. However, Exhibit P-2 is before the court. In addition, Exhibit P-3, which contains still photos from that video, is before the court. When I look at Exhibit P-3, photograph number one, I see an individual with a very similar build and stature as the accused. When I look at Exhibit P-3, and in particular photograph number 4, I see a face that very much resembles the accused, Mr. Power.

I see very similar dark rimmed glasses, a very similar nose, and a very similar mustache. In addition, looking at that same photo and comparing it to Exhibit P-7, I believe I see the same narrow face, the same dark rimmed glasses and the same mustache. [ 112 ] The second witness, Doreen Congson, testified that during the robbery the scarf moved and she saw a tattoo on the robber’s neck. She said it was a single tattoo, a blueish green mark that appeared lower down on the left side of the robber’s neck, below the left ear.

All of this is a fairly accurate and applicable description of the tattoo on the accused’s neck. As mentioned above, when Crown counsel confronted the accused about this, in my view he had a rather odd and curious response. [ 113 ] The robber wore a dark coat, scarf and quite a distinctive looking blue green toque. The robbery took place at approximately 9:47 a.m. At approximately 9:52, according to the surveillance camera across the street and looking at the front door of the Cornwall Centre, the robbery suspect entered the front door of the mall.

Via video, that suspect is tracked directly to the washroom near the food court. At approximately 9:53, the robber entered the washroom. No one saw or pictured the robber, wearing the same clothing, exiting the washroom. No one saw the accused enter the washroom. At approximately 9:56 a.m., approximately three minutes after the robber entered the washroom, the accused left the washroom. As mentioned above, in the next 30 to 45 minutes, the accused was tracked about the mall. He went to Cell Style and Rogers and purchased a cell phone and plan.

He called a cab, entered the cab, went to the Empire Hotel and purchased beer, and then went on to his friend’s residence on the 12 block of Retallack Street.

[114] When I consider all of the above evidence and circumstances, together with the accused’s evidence that has been completelyrejected, I can come to no other conclusion than that the robber and the person shown in Exhibit P-7 are one and the same person. Thatperson is the accused, Albert Power. CONCLUSION [115] On the basis of all of the above, I find the accused guilty of count one, the robbery count. [116] Count two of the Information is that the accused has his face masked.

He did not have his face fully masked, or did not have itmasked very well, if I am able to look at the pictures and conclude that the robber looks very much like the accused. Having drawn thatconclusion, I do not believe it would be reasonable to find him guilty of the charge of having his face masked. [117] I believe that counts three and four on the Information are both entirely subsumed and dealt with as part of the robbery. Theprinciple from R v Kienapple, (SCC), [1975] 1 SCR 729 (SCC) [Kienapple] is applicable.

I am satisfied that theaccused used money from the robbery to purchase cell service from Chatr Mobile and Rogers. I am satisfied he was in possession offunds from the Royal Bank, and knew those funds were obtained from the robbery. I would find him guilty on both of these counts. However, this evidence has been fully set forth and relied on by the Court in finding the accused guilty of robbery.

Pursuant to theKienapple principle and the recent decision of the Ontario Court of Appeal in R v Drury, 2020 ONCA 502, 391 CCC (3d) 18, I impose aconditional stay with respect to counts three and four. [118] The fifth and final count is the charge of breach of probation. A copy of the probation order has been filed with the court. It isan order of my brother Judge Henning, made on September 23, 2019. That order was clearly in force and effect on January 6 of thisyear.

Having concluded that the accused is guilty of robbery on January 6, I clearly must find him guilty of breach of probation on thesame day. [119] I express my thanks to both counsel for their able presentation of a difficult and very interesting case. Dated at the City of Regina, the Province of Saskatchewan this 3rd December 2020. ____________________________D. Kovatch, J