Her Majesty the Queen - v. -, 2012 SKPC 101

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 101 Date: June 25, 2012 Information: 36652209 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gregory Lloyd Sperling Appearing: D. Howarth For the Crown K. Armstrong For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused is charged that on or about the 16 th of October, 2010 at or near Saskatoon he did commit mischief by wilfully damaging property to wit: front windshield of a value not exceeding $5,000.00, the property of Robert Thomas, contrary to s. 430(4) of the Criminal Code .

[ 2 ] The sole issue for determination is the identity of the perpetrator. The accused denies any involvement in the incident and offers alibi evidence in his defence. [ 3 ] Certain facts are not in dispute:

a) the mischief consisted of smashing out the windshield of a van belonging to Robert Thomas, the caretaker/landlord of the complex where the accused resided;

b) the incident occurred at approximately 3:00 a.m. on Saturday, October 16, 2010 in the rear parking lot of the apartment complex;

c) the driver of an older model white Ford Probe bearing Sask. licence 616 HFT identified as belonging to the accused, exited the vehicle, retrieved a large metal bar from the trunk and thereafter smashed out the windshield of Mr. Thomas’s van;

d) the accused resided in apartment #8 of the complex with a roommate, one Shane Laing, who according to the accused, had “gone on the run” some time prior to the incident;

e) the accused and his roommate were in arrears for rent for at least the month of October and had received an eviction notice which had been appended to the apartment door. II ISSUES TO BE DETERMINED AT TRIAL [ 4 ] Several issues arose at trial relating to the issue of identity which can be summarized as follows:

a) Eye Witness Identification;

b) Credibility of Crown and Defence Witnesses;

c) Alibi Evidence. III DETERMINATION

a) Eye Witness Identification [ 5 ] Marshall Harder (also known as Sean Harder) resided on the 2 nd floor of the apartment complex in question with his mother and knew the accused as a tenant of apartment #8 in the same building. Regarding this incident he testified as follows:

a) he knew the vehicle that the accused owned and the parking stall where it normally parked;

b) at approximately 3:00 a.m. on October 16, 2010, he was playing a video game in his apartment when he heard a vehicle driving in the parking lot directly below. Curious, he got up and went to the window where he observed a vehicle drive up and park in stall #8;

c) he initially assumed that the vehicle was being operated by the accused because he recognized the car and parking stall and thereafter confirmed that this was so when the driver exited the vehicle and he had the opportunity to look directly into his face for two to three seconds;

d) he then observed the accused to go to his trunk and retrieve a metal bar and thereafter go to the van of the caretaker Robert Thomas and smash out the windshield;

e) the police were contacted and arrived shortly thereafter whereupon he gave a statement in writing identifying the license plate number of the accused’s vehicle and that he knew this individual as the tenant of #8 apartment. He admitted in cross-examination that he did not give the name Greg Sperling however added that he was not asked by the investigating officer for any further description or name of the accused. In re-examination he stated that who he meant by the tenant in #8 was in fact the accused Gregory Sperling;

f) he had to raise himself up at the window to look over an approximate three foot balcony such that he was then able to look directly down into the parking lot;

g) he estimated the distance from where the vehicles in question were located and the building to be roughly 12 to 13 feet (on this point Defence counsel in argument indicated that a subsequent witness, Robert Thomas, gave this estimate to be 100 feet however it is clear upon reviewing the transcript of the proceedings that Mr. Thomas was referring to the distance of a light on the side of the building to the vehicles and not the distance from the building to the vehicles themselves);

h) although dark outside at this hour Mr. Harder had sufficient light coming from a light on his building as well as on a building directly behind the parking lot to clearly see what was transpiring and recognize Mr. Sperling;

i) he also had prior dealings with Mr. Sperling’s roommate, Shane, and was certain the individual he saw was Mr. Sperling and not the roommate;

j) he was not drinking or doing any drugs at the time he witnessed the event.

b) Credibility of Crown and Defence Witnesses; [ 6 ] The Court was impressed with Mr. Harder’s evidence. He was clear, concise, straightforward and did not waiver in cross- examination. He gave careful, patient answers and appeared to be making every effort to tell the truth readily conceding points in cross- examination that he easily could have embellished or disagreed with. [ 7 ] The accused on the other hand was just the opposite in many respects giving confusing and contradictory evidence, examples of which (apart from his alibi evidence which will be dealt with separately) are as follows:

a) the accused testified about an incident between he and the principal Crown witness, Mr. Harder, wherein Mr. Harder was alleged to have pointed a paintball gun at him and made threats to cause personal harm. He testified that this all came about when he, the accused, went to see the landlord, Mr. Thomas, concerning his roommate Shane and the fact that he had not paid his portion of the rent. According to the accused, it was at this time that Mr. Thomas informed him that Mr. Harder had implicated him in smashing out the van windshield. The accused stated that he then immediately confronted Mr.

Harder’s mother in the convenience store located down below and thereafter went up into the apartment complex where he was accosted in the hallway by Mr. Harder brandishing the paintball gun.

The accused stated that Harder told him in part “you’re going to be going down for the broken window”. The accused then went on to testify that this incident occurred “the first week of October - before the window was broken”. He reiterated in cross-examination that the paintball gun incident happened before the window was broken. This of course made no sense since he had just testified that he was told just prior to the paintball gun incident by the landlord that he was being blamed for the broken windshield and also that Mr. Harder had said this to him as well.

When pressed further in cross-examination as to this obvious inconsistency in his evidence, the accused flip-flopped stating “the broken window happened a week or two before this (referring to the paintball gun incident - in itself very “confusing” testimony since the evidence clearly indicated the windshield to have been broken only the day before on October 16)”;

b) the accused testified in chief that on Sunday, October 17 he had retired for the evening when the police later showed up about 1:00 a.m. banging on his door. He subsequently testified that he was up listening to music when the police came and didn’t answer his door because he was afraid it might be his roommate that had come looking for him (Constable Jody Levesque of the Saskatoon City Police in fact testified that when he and his partner arrived at the accused’s door there was music playing and a light on and that the accused did not come to the door for several minutes until after the police had identified themselves);

c) in his evidence-in-chief, the accused stated that when the police came to his door he told them he knew that the police were looking for him because he had heard this through a friend. Later in cross- examination he denied that he had testified to this effect notwithstanding that it had only been moments before that he had done so.

c) Alibi Evidence [ 8 ] The accused and his girlfriend, Crystal McIvor, gave alibi evidence to the effect that Mr. Sperling spent the entire weekend of October 15 to 17, 2010 inclusive at her residence in Watrous, Saskatchewan. In this regard, the accused stated his girlfriend and their six year old son had picked him up at his apartment on Friday evening roughly at about 10:30 p.m. and thereafter they drove in her vehicle to Watrous.

Thereafter they stayed pretty much indoors the whole weekend returning to his apartment in Saskatoon Sunday evening about suppertime where he remained for the balance of the evening. Ms. McIvor gave similar evidence stating that she brought Mr. Sperling back to Saskatoon at roughly 3:00 p.m. on Sunday, October 17 to buy groceries and thereafter dropped him at his apartment around 7:00 p.m. [ 9 ] The accused confirmed that the police arrived at his door in the early morning hours of Monday, October 18 and took him to the detachment regarding questioning about the windshield damage.

He was subsequently charged for the mischief to the van but also advised the police that he wished to make a statement regarding Mr. Harder and the incident with the paintball gun. He then provided a written statement that morning, October 18, which in part reads: . . . he pulled a semi-automatic paintball gun on me and kept reloading and pointing it at my face and head shouting “if you come back you’re fucking dead and you’re going down for the windshield, you little bitch.” I ran down the hall the other way and left the building and called the police.

This happened on October 17/2010 at or about 1:45 to 2:00 p.m. I contacted my sister and stayed out at her place until about 11:00 p.m. on October 17/2010. [ 10 ] This written statement of course materially contradicts the accused’s alibi evidence at trial to the effect that he had been out of town Sunday until suppertime and that he had stayed home during the evening. Since both versions cannot co-exist, either his alibi is false or this incident with Mr. Harder never occurred. Either way, his credibility is significantly compromised. [ 11 ] Ms.

McIvor, for her part, provided impressive detail concerning the weekend in question, including even the movie that she had attended with her son on the Friday evening before collecting the accused at his apartment. She further testified that she had given a written statement to the police regarding the weekend’s activities to support the alibi and that she made this statement the first week of November, 2010, only a few weeks subsequent to the event.

When asked in chief whether she could be mistaken about the date for giving the statement, she reiterated that it was the first week of November and that she was certain of this because she had to attend in Saskatoon at that time for a Family Court hearing. She had therefore arranged with the police to come in and give a statement at the

same time. When the written statement was put to her in cross-examination however, she conceded that it was actually made March 3,2011, some four months later than what she had testified to. It is hard to reconcile the obvious inconsistency in her ability to recallevents, particularly since she was so plainly mistaken on the statement date which was in fact the only detail which could be verifiedindependently. [12] For the reasons stated, the Court is unable to accept either the evidence of Mr. Sperling or Ms.

McIvor as reliable and credibleconcerning the alibi nor is this evidence otherwise capable of raising a reasonable doubt. IV RESULT [13] After a careful review of the evidence, the Court is satisfied that where the evidence of the Crown and that of the Defenceconflict, the Court prefers and accepts the evidence of the Crown witnesses.

The accused was positively identified as the individual who caused the damage and there is nothing otherwise in the accused’s evidence or the evidence as a whole which raises a reasonable doubt in this regard.[1] Accordingly, he is found guilty of theoffence as charged. _____________________ R.D. Jackson, J [1] See R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.)