2018 MBPC 40, 2018 MBPC 40

Citation: 2018 MBPC 40 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Ms. E. Dolcetti and Mr. C. Boiteau-Marr ) ) for the Crown - and – ) ) ) Ms. S. Soldier H.J.R. Accused ) ) for the Accused ) ) ) Judgment delivered: ) September 12, 2018 MARY KATE HARVIE, P.J.

Introduction [ 1 ] It is alleged that on September 15, 2017 the accused H.J.R. was involved in an attempted “Home Invasion”, and as such he is charged with break enter and commit aggravated assault, break enter and commit assault, possess weapon for purpose dangerous to the public peace, wearing a disguise with intent and failing to comply with an undertaking not to possess weapons. When H.J.R. was arrested for these offences on September 16, 2017, he was found in possession of a weapon.

Defence counsel does not contest the charges flowing from his arrest. [ 2 ] The evidence and arguments were heard over five days, with counsel making a number of evidentiary agreements at the outset of the trial. The complainant Jennifer McFadyen and her sister Ashely McFadyen, both residents of the house which was the subject of the break in, did not attend the trial, despite several attempts by Crown counsel to secure their attendance. It appears that both were evading the authorities.

Their K.G.B . statements were admitted into evidence by consent, with defence counsel reserving the right to argue the ultimate reliability and weight to be attached to those statements. [ 3 ] The Court also viewed surveillance video obtained from a nearby house. While the videotape does not capture the incident, it shows four males, including the accused, in the immediate neighborhood before and after the incident. Along with members of the Winnipeg Police Service (“WPS”), Crown counsel called two neighbours, both of whom witnessed a group of four males in the front yard of the victim’s residence.

One of the co-accused also testified, identifying the accused on video, but limiting H.J.R.’s and his own involvement in the incident. The Accused elected not to testify. The Circumstances Surrounding the Break In [ 4 ] According to their K.G.B. statements, on September 15, 2017, just after 7:30 A.M., the McFadyen sisters heard a loud knocking at the door to their residence at Suite 1 – 501 St. John Avenue. They initially ignored it, thinking it to be the complainant

Jennifer McFadyen’s boyfriend, with whom she had had a fight the night before. Because the knocking persisted loudly, both answered the door, and when they did so they say that they were confronted by four males, armed with shotguns, who tried to force their way into the residence. Ashley McFadyen later told police that she recognized two of the four males via their tattoos, although all were disguising their identity with red bandanas.

All were described as wearing black. [ 5 ] While the McFadyen sisters struggled to close the door, one of the intruders placed his foot in the door, enabling someone from the group to reach in and sprayed bear mace into the house. During the struggle, Ashley noticed blood dripping from her sister’s arm. It was only then that they both realized that Jennifer had been shot in the elbow area. When Ashley screamed to her daughter “call 911 my sister is shot” the attackers ran off, with one leaving his shoe still wedged in the door.

Police were contacted and Jennifer was taken by ambulance to the Health Sciences Centre. [ 6 ] Later on September 15 th , 2017 Ashley McFadyen provided a K.G.B. statement to police. At the time of her statement, Ashley had not had an opportunity to speak to Jennifer, who was still in the hospital. It appears that she had some discussions with her neighbor prior to making the statement, the extent of which is not clear. [ 7 ] On September 17, 2017 Jennifer McFadyen provided a K.G.B. statement to police.

Jennifer had returned home from the hospital and was living with Ashley when police picked her up and brought her to the police station. [ 8 ] Neither sister identified the accused. Although they both testified that all four assailants were wearing black, videotape evidence clearly shows the accused wearing a light grey sweater, the same sweater he was arrested in on the following day.

Photos of that sweater were admitted into evidence, as were photos of the red bandana seized from the accused at the time of his arrest. [ 9 ] As indicated, a house approximately half a block away from where the incident took place was fitted with security cameras. The tapes which were obtained clearly showed four males, one of which was identified as H.J.R., heading together in the direction of the McFadyen residence, two on bikes and two on foot. Some minutes later the four males are seen departing at a much quicker pace. H.J.R. is identified on video by his co-accused Ricky Flett.

There is no suggestions that anyone left or joined the group between the time the four are seen headed in the direction of the McFadyen residence and when they are seen shortly after the incident coming back from the direction of the McFadyen home. [ 10 ] In her statement, Ashley McFadyen indicated that she saw at least three of the assailants were carrying shotguns, and Jennifer indicated that all four were armed with “big” guns. The videotape evidence shows one male carrying what might be a weapon.

There is no photographic evidence of the others carrying guns. [ 11 ] The Court heard from two neighbours who lived in the vicinity of the McFadyen residence. Ms. Celena Genaille, who lived approximately half a block away, testified to seeing four males, all in black and with their faces covered, in the front yard of the McFadyen residence. She testified that she saw one member of the group run off in advance of the others.

Her ability to observe the incident was affected by distance and by the admittedly brief period of time she had to make her observations. [ 12 ] The neighbour who lived immediately next door, Ms. Marguerite Wowryk, testified that she heard what sounded like the loud banging of garbage cans. When she took her dog outside to relieve himself, she saw four males in the neighboring front yard. Like Ms. Genaille, she described all four in black, with something, possibly balaclavas, covering their faces. She saw one of the group putting a large silver object, which she thought was a knife, down the front of his pants.

She testified that two of the group left ahead of the other two. It is apparent from her description that the group headed in the direction of the residence with the surveillance equipment. It is conceded that Ms. Wowryk likely made her observations after the shot was fired that injured Jennifer McFadyen and that her opportunity to observe the actions of the group was brief. [ 13 ] The co-accused Ricky Flett testified, identifying himself, H.J.R. and a third accused on the videotape.

He confirmed that at the time of the incident he and H.J.R. were both members of the “Bloods” street gang, and that they had been together since the night before consuming drugs. He also confirmed that Bloods members identify themselves by wearing a red, such as the red “flags” or bandanas he and H.J.R. were found with at the time of their arrest. He denied that he and H.J.R. were in possession of a gun at the time of the incident, asserting that the third member had a gun without their knowledge. Although he claims that the group went to the address on St.

Johns to collect a debt for him, he denies that he or H.J.R. went to the door. His evidence is that it was not until he and H.J.R. heard the shots that they realized anyone in their group was armed, and that they immediately left, having gone no further than the front yard. The Issues at Trial [ 14 ] At issue is the role, if any, the accused played in the incident. Crown counsel acknowledges that the evidence does not establish that the accused possessed or discharged the firearm that injured the complainant.

She does argue, however, that the evidence establishes beyond a reasonable doubt that the accused was one of the group who attended to the door and attempted to force entry into the McFadyen residence, therefore making him guilty of the offences. She further argues that the accused is, at the very least, a party to the offence. [ 15 ] Defence counsel submits that the evidence falls short of establishing H.J.R.’s actual involvement or his involvement as a party. She points to the lack of direct identity of H.J.R. by either of the McFadyen sisters, and the weakness of the neighbour’s evidence.

She also points to the evidence of the co-accused Ricky Flett, which calls into question H.J.R.’s knowledge about the presence of a weapon. According to Flett, H.J.R. was not involved in the actual break in. The Evidence of H.J.R.’s Involvement [ 16 ] Having considered the totality of the evidence, I am satisfied that H.J.R. was part of the group that attended to the McFadyen sister’s residence on the morning of the break in and shooting. This finding is supported by the videotape evidence, with his identity being confirmed by the co-accused Ricky Flett.

His attendance as one of the group who attended to the front yard is confirmed not just by Mr. Flett but by the neighbors Ms. Wowryk and Ms. Genaille, both of whom saw a group of four males in the front yard of the residence.

[17] I am also satisfied, given the totality of the circumstances, that his attendance in the yard of the residence is sufficient to grounda finding that H.J.R. is, at the very least, a party to the offences in question. Criminal Code S. 21 states that Every one is a party to an offence who (

a) Actually commits it; (

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

c) Abets any person in committing it. [18] Since the decision of the SCC in R. v. Dunlop and Sylvester (SCC), [1979] 2 S.C.R. 881, it is well recognizedthat mere presence at the scene of an offence is not sufficient to ground liability under this section.

There must be something further thanpassive acquiescence, such as prior knowledge of the offenders’ intentions, along with attendance for the purpose of encouraging orpromoting the crime. [19] The co-accused Ricky Flett suggests that he and H.J.R. were unaware of the presence of a weapon, were unaware of theintentions of the two assailants who he says attended to the door of the residence without him and H.J.R., and that they fled upon hearingthe sound of gunshots. I cannot accept his evidence on this point. Flett clearly has an admittedly close relationship with H.J.R., describinghim as being like a “brother”.

I note that Flett himself is charged with these offences and is motivated to limit his own involvement. Hisevidence respecting the presence of a weapon is not consistent with the videotape evidence. More specifically, as it relates to partyliability, both neighbors testified that all of the group in the front yard had their faces covered.

It is impossible to conclude anything butthat they were present, at the very least, for the purpose of encouraging and supporting the offence. [20] I am mindful of the fact that the accused was seen to be wearing a grey sweater at the time of the offence, and that thewitnesses describe all four members of the group as wearing black. This type of observational error is not surprising, given the difficultcircumstances surrounding the brief observations made by the two neighbors.

I am satisfied that little turns on this, given the evidence ofFlett which places H.J.R. in the front yard of the residence. [21] Does the evidence support a finding that the accused was part of the group that actually went to the front door? In order toanswer this question, the Court must assess the evidence of the McFadyen sisters, tendered through their K.G.B. statements, and untestedby cross examination. An Evaluation of the KGB Statements [22] As indicated earlier, Crown counsel introduced the statements of Jennifer and Ashley McFadyen, which were taken under oathshortly after the incident.

Defence counsel consented to their admissibility but raised concerns with respect to their overall reliability andthe weight to be attached, given the circumstances under which the statements were taken. [23] There are several areas of concern expressed with respect to these statements. The first relates to the conduct of the WPSmembers prior to the videotape statement commencing. Detective David Boyd, the officer who was directly involved in obtaining thestatement, testified that it is the “policy” of the WPS to conduct a “pre-interview” prior to commencing a videotaped statement.

The pre-interview is not subject to recording, and the questions and answers are not recorded verbatim. The purported purpose of the pre-interview process is to put a witness at ease, review the facts with the witness, and to therefore prepare for and focus the taped interview.Having reviewed the facts off camera, Detective Boyd confirmed that this process enables the officer to question witnesses about areasthat the witness may miss during the videotaped interview. [24] The policy which encourages a pre-interview has been the subject of previous judicial comment. In R. v.

Guinet, unreported,October 7, 2012, Pollack PJC discussed the effect of a pre-interview on the reliability and admissibility of a witness statement. In Guinet,police had extensive involvement with the witness over a period of approximately 9 hours prior to the obtaining of a videotapedstatement approximately one hour in length.

Pollack PJC expressed concern that the interaction between the witness and the police inadvance of the taped interview meant that they were able to effectively “prepare, then direct and finally produce an evidentiary product,”ultimately declining to admit the statement into evidence. [25] Similar concerns about the use of the “pre-interview process” were expressed by Stewart P.J. in R. v. Simmons and Haluik,2010 MBPC 16.

Although the statements were admitted, Judge Stewart noted that “several lower court decisions have found that byusing this technique the Winnipeg Police Service” risked creating “an insurmountable disability for the prosecutor” to establishvoluntariness. [26] I harken back to the purpose of the videotaping witness statements. The process set out in the Criminal Code allows Crowncounsel to make application to introduce into evidence statements of witnesses who are not available when certain preconditions aremet.

These hearsay statements, which are presumptively inadmissible, can be admitted into evidence when certain basic criteria are met. However, I am also mindful of the observations of Chief Justice Lamer In R. v.

U (FJ) (SCC), [1995] 3 S.C.R.764: I would also highlight here the proviso I specified in B(KG) that the trial judge must be satisfied on the balance of probabilities that thestatement was not the product of coercion of any form, whether involving threats, promises, excessively leading question by theinvestigator or other persons in a position of authority, or other forms of investigatory misconduct. (emphasis added) [27] As indicated earlier, the concerns in this case relate not to the admissibility of the statements, but to their reliability.

Morespecifically, the possible impact of any “leading questions by the investigator”, during the pre-interview stage is essentially impossible toassess due to the absence of any reliable record of the interactions between the parties. This must be considered when assessing the keyevidence of the complainant and her sister as to the number of assailants who were at their door.

[28] A second concern was raised with respect to the manner in which both Jennifer and Ashley McFadyen were videotaped. Forreasons which remain unclear, the officers arranged the parties in the videotape room in such a fashion so as to show the faces of thepolice officers but not the witnesses, who were recorded from the rear. The reason for configuring the room in this fashion remains amystery. This clearly impacts the Court’s ability to assess the facial reactions and demeanor of the witnesses, all of which can beextremely helpful in assessing the weight to be attached to the statements.

I acknowledge the comments of the Manitoba Court of Appealin R. v. Ducharme, 2004 MBCA 29 , 2004 MJ 60, which stated that videotaping is not a mandatory prerequisite for theadmissibility of a confession. However, when witnesses are videotaped and that video statement is offered in place of an absent witness,it does not seem to be too much to ask to be able to actually see the person being interviewed. [29] As indicated, one of the critical issues to be determined relates to the number of individuals who attended to the back door andparticipated in the break in.

The concerns raised with respect to the manner in which the two videotape statements were obtained directlyimpact upon this critical piece of evidence. This must be assessed taking into account the other concerns arising from informationcontained in the statements and the other evidence which includes the following: 1. The evidence indicating that all four perpetrators were wearing black (when it is clear that H.J.R. is wearing a light coloured jacket; 2.

The evidence suggests all four males were in possession of shotguns, an assertion which is not consistent with or supported by theobservations of the neighbours or by the surveillance tape; 3. That while Ashley McFadyen’s statement is clearly given prior to her having an opportunity to speak to her sister Jennifer, Jenniferdid have an opportunity to speak to Ashley prior to her statement. It appears as well that Ashley had some opportunity to speak to theneighbors prior to giving her videotape statement. 4.

The evidence of the McFadyen sisters has not been tested by cross-examination, as they did not attend and appear to be evading theauthorities. Conclusion [30] Taking into account all of the foregoing, I cannot be satisfied beyond a reasonable doubt that H.J.R. was part of the group thatactually attended to the back door of the residence, where pepper spray was discharged and Jennifer was shot.

However, as indicatedearlier, I am satisfied that his presence as part of the group in the front yard, while wearing a disguise over his face, is sufficient tosupport a finding that he was a party to the offences. [31] Under all of the circumstances, I am entering a conviction on the offences of break enter and commit aggravated assault,possession of a weapon dangerous to the public peace, wearing a disguise with intent, failing to comply with the conditions of anundertaking not to possess a weapon.

Given the position of the Crown, the offences of break enter and commit assault and aggravatedassault will be stayed per Kienapple. [32] There is no challenge to the offences arising from the arrest of the accused on September 16, 2017. Convictions will be enteredfor carrying a concealed weapon, possession of a weapon dangerous to the public peace, and failing to comply with the conditions of anundertaking not to possess a weapon. “ORIGINAL SIGNED BY:” MARY KATE HARVIE, P.J.