R. v. Thompson, 2019 MBPC 79

CITATION: R. v. Thompson, Vincent, 2019 MBPC 79 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) J. Myskiw for the Crown ) - and – ) ) Vincent Rupert Thompson ) K. Henley for the Accused ) ) Judgment delivered December 17, 2019 ) M.P. Thompson, P.J. Introduction [ 1 ] This trial involved a street mugging. The issue at trial focussed on identity. [ 2 ] The accused, Vincent Thompson, along with a female co-accused were separately charged with a robbery offence from April 5, 2018 in Winnipeg.

Date, jurisdiction and the fact that Shantel Harris was punched in the face and had her purse stolen on a residential street in Winnipeg are not disputed. At issue, is whether the Crown has proven the accused is the person who committed this offence. [ 3 ] Because the victim was unable to pick the accused out of a photo line-up shown to her by Police or make an in-court identification of the accused, the Crown relies on circumstantial evidence to prove identity. [ 4 ] The robbery victim works at a Giant Tiger store located on Main Street, in Winnipeg. A man and a woman came into the store as it was closing.

Because there were no other customers present in the store, her manager asked her to keep an eye on them because he was suspicious that they might try to steal. She had a brief interaction with them on two occasions. One of them asked her to direct them to where the cheese was located and she pointed it out. She was then asked by the woman why she was following them.

She told them the store was closing soon and she wanted to ensure they found what they needed so the store could close. [ 5 ] The manager’s suspicions proved correct as at 10:08 p.m., the male and female boldly walked away from the check-out, leaving the store without paying for the groceries. All of this was recorded via in-store video surveillance cameras. They were not apprehended at that time by staff, nor were police called. [ 6 ] Forty-five minutes later, after the store had closed, the same store employee was walking home.

A woman tugged on her purse, pulling it off her shoulder, while a man on a bicycle punched her in the mouth. The victim dropped her groceries and fled to the nearby McDonald’s to call 911. She told the 911 operator that she had been robbed, punched, and stated: “I think it was the same people who came to Giant Tiger”. She was upset and in shock at the time. [ 7 ] The accused was not arrested until September 20 th , 2018. Issues [ 8 ] The issues as I understand them are:

(1) Has the Crown proven that the male shown in the Giant Tiger surveillance video at the time and date in question is Vincent Thompson, the accused; and if so,

(2) Has the Crown proven beyond a reasonable doubt that the same person shown in the surveillance video at Giant Tiger committed the robbery against Shantel Harris forty-five minutes later as she walked home from work. Legal Framework [ 9 ] Because this is a circumstantial case, I rely on the test in R v. Villaroman, 2016 SCC 33 that the standard of proof is that the only reasonable explanation consistent with the evidence and the absence of evidence, is the inference that the accused is the person who committed the robbery.

Crown Position [ 10 ] The Crown points to a constellation of facts as proof, that even without eyewitness identification by way of photo line-up or in- dock identification, the Crown has proved identity beyond a reasonable doubt. Defence Position

[11] Defence counsel asserts firstly that there is insufficient proof that the accused is the person in the Giant Tiger video, and even ifthe Court is satisfied that he was present at the Giant Tiger forty-five minutes before the robbery, there are other reasonable inferencesother than the accused committed the robbery.

Defence references the vague nature of the description of the accused, the lack of anyspecific identifier other than it was a man and a woman together, the time gap of forty-five minutes between the man leaving Giant Tigerand the robbery taking place, and that there was some distance between the location of the robbery and the Giant Tiger store. Analysis of Issue #1 [12] Has the Crown proved that it was the accused in the store surveillance video that night? I am satisfied it is Vincent Thompsonshown in the surveillance video at Giant Tiger for the following reasons:

(1) When I compare how the accused looked in the prisoner’s dock in Court, to the Giant Tiger surveillance, it looks like theaccused to me.

(2) While similar, this is not conclusive. I would not wager his freedom on my opinion alone for the following reasons: (

a) The man in the video is wearing a toque, his hair is not visible; (

b) He has no facial hair; (

c) He has no tattoos, no visible scars, no distinctive clothing, nothing about him looks distinctive. [13] However, this is not the only evidence to consider on this issue. The accused made admissions in his statement to police. Heidentified his girlfriend as the woman in the Giant Tiger video (see page 22 of the transcript of that statement). He admitted that heshops at that Giant Tiger store and may have shoplifted there at some time.

At page 20 of the transcript of his statement, lines 17-18, theaccused acknowledged when asked about the male in the video, “yeah that looks like me”. [14] When I combine the accused’s admissions to police with my personal comparison of the man shown in the surveillance video tothe accused’s face in Court, I am convinced beyond a reasonable doubt that this accused is the same person shown on the Giant Tigervideo surveillance on the date of the robbery. [15] I will comment on the opinion evidence of the investigating police officer who compared the video surveillance footage fromGiant Tiger with the accused and pronounced them the same person. [16] I am not satisfied the officer’s opinion on identity is relevant evidence.

By that, I mean I do not see its probative value. Theofficer is looking at the same surveillance video the trial judge observed. The comparison he is attempting to make to the accused is thesame function as the trial judge. This opinion evidence is not helpful to the Court, as there is no special benefit this witness brings togiving this opinion. [17] Opinion evidence is presumptively inadmissible. “In the law of evidence, an opinion means ‘an inference from an observedfact.’ ” (R v.

Collins (2001), 160 C.C.C. 93d) 85 at para. 17 (ONCA)). “Witnesses are to testify as to the facts which they perceived, notas to the inferences - that is, the opinions - that they drew from them. As one great evidence scholar put it long ago, it is “for the jury toform opinions, and draw inferences and conclusions, and not for the witness.” White Burgess Langille Inman v.

Abbot and HaliburtonCo., 2015 SCC 23 , [2015] 2 S.C.R. 182 at paragraph 14. [18] The police officer in question was not proffered by the Crown as an expert witness, which would include that the expert beproperly qualified, and includes the requirement that the expert be willing and able to fulfill the duty to the Court to provide evidence thatis impartial, independent and unbiased. It must also be relevant, necessary and reliable. The officer’s evidence is opinion evidence thatgoes to one of the ultimate issues at trial, identity. [19] As a lay witness, his opinion evidence is presumptively inadmissible. Graat v.

R., (SCC), [1982] 2 S.C.R. 819 Analysis of Issue #2 [20] Having determined that Vincent Thompson was at Giant Tiger forty-five minutes before the robbery, has the Crown proven thathe was the same person who robbed Shantel Harris as she walked home from work? [21] The Crown argues that a constellation of circumstantial evidence leads to only one reasonable inference, that VincentThompson was the man who committed the robbery. That evidence includes: [22] The victim’s first thought on the phone to 911 moments after the robbery was that it was the same man and woman she dealtwith at Giant Tiger.

She based that on a feeling of familiarity, that it was a man and a woman, she recognized their clothing and hisbackpack, he was of the same age and build and the female was of the same build as the two individuals she encountered at the store. The Crown points out they would have been memorable to her, as her manager told her to keep an eye on them and in fact saw them walkout without paying. [23] Further, the Crown points to the accused’s statement to police. When confronted about the particulars of the robbery at page 7of the transcript of his statement, he did not initially deny it.

Rather, at page 8 when it was directly put to him that he and his girlfriendrobbed a lady, he answered, “I don’t know, maybe, I don’t know”. At page 9, he repeated that response of “maybe” twice more and wenton to say he did not remember. [24] Later in his statement, he did deny being involved in this robbery stating, “I didn’t rob anybody.” [25] His statement was equivocal at the beginning, but other than identifying himself and his girlfriend as the ones in the video, hedid not make any admissions with respect to the robbery. Overall, it cannot be said he admitted responsibility for the robbery.

[ 26 ] As the Defence pointed out, in the absence of definitive admissions in his statement, his identity as the perpetrator of the robbery rests with the victim’s ability to identify him. [ 27 ] Because the victim was unable to pick either accused out of a photo lineup and did not even attempt to make an in-court identification, the underlying basis for her identification of the accused must be closely examined. [ 28 ] The victim testified that she just remembered the dark clothes and the backpack he was wearing. No other details about that clothing, or how it was distinctive were offered to the Court.

It was a very generic description. She went on to describe the man as Aboriginal, in his mid 30’s, medium height with a skinny build. [ 29 ] The victim described the woman as tiny, maybe 5’6” and slim, Aboriginal, wearing a toque. “I just remembered what she was wearing at Giant Tiger because she asked why we were following her.” [ 30 ] She went on to testify that she did not think the man and woman had followed her from the store, but she did not know for sure. She admitted that it was dark outside and that she recognized them because of their clothing.

Asked if there was anything else she recognized she said, “No.” It all happened very quickly. Conclusion and Verdict [ 31 ] I was convinced beyond a reasonable doubt that Vincent Thompson was the man shown on surveillance in the Giant Tiger store forty-five minutes before the robbery occurred.

However, when I weigh the circumstantial evidence on the issue of identification of the accused as the perpetrator of the robbery, factoring in the forty-five minute gap in the evidence, the evidence of the complainant while consistent with a feeling of familiarity, does not meet the standard of identification in a criminal trial. [ 32 ] As I have a reasonable doubt, I find the accused not guilty of the charge of robbery. “Original signed by” M.P. Thompson, P.J.