HER MAJESTY THE QUEEN - v. –, 2022 NBPC 1

FILE 35339001 Citation # 2022NBPC01 IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MONCTON BETWEEN: HER MAJESTY THE QUEEN - and – JANSON BRYAN BAKER DECISION BEFORE: The Honourable Anne M Richard AT: Moncton, New Brunswick DATE OF DECISION: May 19, 2022 CHARGES: s. 267(

a) CC, s. 88(2)(

b) CC, 117.01(1) CC APPEARANCES: Martinne Cormier, on behalf of the Attorney General of New Brunswick;

Jason Dempsey, on behalf of the Defendant. [ 1 ] Janson Bryan Baker is charged with three offences allegedly occurring on December 28, 2020, in Salisbury, New Brunswick. The specific offences charged are assault with a weapon being a taser upon Malcolm McCullough contrary to

section 267 (

a) of the Criminal Code of Canada ( hereinafter referred to as the « Code »), possession of a weapon being a taser for the purpose dangerous to the public peace contrary to subsection 88(2) (

b) of the Code and possession of a prohibited weapon while banned by reason of an order issued by Judge Denise A. LeBlanc on June 22, 2016, contrary to

section 117.01(1) of the Code . THE EVIDENCE [ 2 ] The Crown called the following witnesses at trial: • Constable Ashley Cleveland of the RCMP • Malcom McCollough victim of the assault • Marc Ricard witness • Trevor Firth witness • Constable Simon Boucher of the Forensic Identification Unit of the RCMP • Ross Norris witness [ 3 ] The defence called no evidence. [ 4 ] The pertinent facts can be succinctly stated as follows.

On December 28, 2020, at approximately 9h50 in the morning, Malcolm McCullough driving a long-haul truck carrying electric vehicles stopped at the Salisbury Irving Big Stop in Salisbury, New Brunswick, off route 2 to refresh, rest, get a coffee at the adjoining Tim Horton’s shop, and prepare to attend the weight scales nearby. His manager required that prior to attending the scales he was to take pictures of the units he was carrying. According to Mr.

McCullough’s testimony at trial, he was taking photos with his cell phone when a Toyota Camry burgundy colour approached him with 2 male occupants seated in the front and three in the back including a woman. The vehicle suddenly came to a halt near him and one of the male occupants jumped out and confronted him. This person demanded why he was taking photographs of him. Mr. McCullough attempted to show him the pictures that he was in fact taking when he suddenly experienced what appeared to be a shadow come over him. He described then being tasered in the face and falling to the ground.

He testified to being unconscious for a few seconds and suffering minor injuries to his chin. The person that discharged the taser fled rapidly in the Toyota Camry. [ 5 ] Mr. McCullough did not know who did this to him. He described his assailant as being shorter and thinner than him (he is 6 ‘4 ‘’ tall). He also testified that this person wore dark clothing including a bandana over part of his face. He spoke English and had some sort of tattoo over his right eye. [ 6 ] Three strangers came to Mr. McCullough assistance noticing him on the ground. One of these testified at trial, Marc Ricard.

Police and paramedics were immediately called. [ 7 ] Constable Ashley Cleveland, the lead investigator in this matter, arrived shortly thereafter. During the investigation, no video or security footage from the rear of the Big Stop was taken or available. THE EYEWITNESS EVIDENCE [ 8 ] Mr. Ricard is also a long-haul driver but is not acquainted with Mr. McCollough. At the time of the assault, he was busy in the cab of his Peterbuilt truck completing his driver's logs when he noticed someone taking pictures of a truck besides his.

Thinking this was somewhat odd, a four-door car described as being brown – beige in colour with 4 occupants suddenly arrived. One of the occupants quickly exited the car and started to talk belligerently to the man taking pictures. As this person is speaking to the individual Mr. Ricard

finds out later is Mr. McCullough, he is keeping his face covered with his left arm. Mr. Ricard finds this fishy or in his words in theFrench language «louche». He sets aside his documents on the dashboard of his truck and grabs his tire thumper to step out to see whatis going on. The male appears then to lunge towards Mr. McCullough who is propelled 1 foot in the air falling on the asphalt pavedparking lot below. As Mr. Ricard rapidly exits his truck, he sees Mr. McCullough lying unconscious on the ground and the assailantready to hit him. Mr.

Ricard yells and curses at the assailant who starts to run away and gets into the back seat of the vehicle he hadearlier arrived in. In his haste to flee, something falls out of the assailant’s pocket which appears to be a key fob remote. [9] Mr. Ricard described the person that assaulted Mr. McCullough as being approximately 5’10 tall, male, Caucasian, skinnywearing some sort of black hoodie. According to Mr. Ricard, this individual wore no face covering or bandana. He was covering hisface rather with his folded left arm. However, Mr.

Ricard insisted having briefly seen the assailant’s uncovered face when he apparentlyretreated into the getaway car. He testified being 90 % certain that it was the accused, Mr. Baker seated in the prisoner’s dock based onthe shape of his body and the fact that he bears a tattoo on his face. Mr. Ricard could not describe the actual distinguishing features ofthe tattoo – only that it generally was over an eye. [10] The 3rd lay witness called by the Crown was Trevor Firth. He vaguely recalled being with the accused Mr.

Baker at one point atthe Tim Horton at the Big Stop in Salisbury sitting with others in a vehicle. He testified that Janson Baker is but an acquaintance and nota friend. He stated not being able to remember the specific date or month. He did testify that on a particular occurrence with himself,Janson Baker, Ross Norris and a woman, Mr. Baker bolted out of the vehicle for a moment but does not know why. [11] The Crown called a 4th lay witness - Ross Norris. Mr. Norris testified that he did not know Mr. Baker very well either.

Nonetheless, he testified that he along with a group of people including his then girlfriend, Trevor Firth and Janson Baker had been in avehicle stationed in the Tim Horton parking lot adjacent to the Big Stop after buying energy drinks on one occasion when Mr. Bakersuddenly exited the car to argue with, in his words, some fellow outside. Mr. Norris stated not being able to remember when this wouldhave specifically happened and why. [12] When asked to review a statement he provided to police following the assault to refresh his memory, Mr.

Norris appeared to wantto revisit his mention that Janson had assaulted buddy. Mr. Norris’s explanation was that he was probably under the influence of drugsor in his words «high» when he gave that declaration to police and that it was now incorrect. He further denied seeing Mr. Baker with ataser but offered the scenario that he himself owned a taser which was silver in colour and dissimilar from the one recovered at the crimescene. Mr.

Norris reiterated that he could not recall the vehicle he was driving or the relevant date and time or any additional details. [13] The Crown called the investigative officer Constable Ashley Cleveland who recovered what appeared to be a replica of a key fobremote retrieved at the parking lot near Mr. McCullough shortly after the assault. Constable Simon Boucher from the ForensicIdentification Unit of the RCMP testified about the forensic tests that he subsequently did. No fingerprints or DNA could be recoveredon the object according to his evidence.

Constable Boucher also provided the measurements and particularities of the object seized byConstable Cleveland and was able to conclude that it was in fact a taser weapon prohibited under

section 84 of the Code. THE ISSUE [14] In the present instance, the issue before the Court is one of identification evidence. The relevant question posed is whether theCrown has proven beyond a reasonable doubt that the accused is the individual who committed the offences on December 28, 2020, atthe Irving Big Stop in Salisbury, New Brunswick? In other words, does the evidence adduced at trial demonstrate beyond a reasonabledoubt the identity of the accused, Mr. Baker as the author of those crimes?

GOVERNING LEGAL PRINCIPLES [15] Neither counsel cited any case law to support their respective positions or to assist the court. Having said that, the presumptionof innocence and the standard of proof beyond a reasonable doubt are both principles in our system of justice to ensure that no innocentperson is wrongfully convicted. The Supreme Court of Canada has repeated this time and again. One such reiteration which is oftencited by the jurisprudence is found at paragraph 39 of the case of R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320 where theCourt sets out a modal charge to be used for jury trials: … A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is

probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty … Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [ 16 ] Reasonable doubt applies to the essential elements of each of the offences. The Crown is required to prove such essential elements. For the offence of assault with a weapon,

section 267 (a), it must demonstrate beyond a reasonable doubt that the accused intentionally assaulted the complainant while using a weapon – in this case a taser. The Crown must also demonstrate based on the same burden of proof that the accused had possession of a prohibited weapon pursuant to section 88(2) (b). A taser is a prohibited weapon pursuant to the regulation under

section 84 of the Code . Specifically,

section 6 of

Part 3 of the regulations set out that as a prohibited weapon: 6.

Any device that is designed to be capable of injuring, immobilizing or incapacitating a person or an animal by discharging an electrical charge produced by means of the amplification or accumulation of the electrical current generated by a battery, where the device is designed or altered so that the electrical charge may be discharged when the device is of a length of less than 480 mm, and any similar device. [ 17 ] Finally, the Crown must also prove that the accused here was subject to a prohibition order made pursuant to subsection 109(2) of the Code and that he breached it.

A certified copy of the probation order was submitted into evidence on that point. [ 18 ] Reasonable doubt and the burden imposed on the Crown also applies to credibility assessments by the trier of facts and the reliability of the narrative provided by witnesses. Courts have time and again reiterated that both those two concepts mean different things. [ 19 ] Should the court rely on the in-dock identification by Mr. Ricard of Mr. Baker as Mr. McCullough’s assailant?

Recently, the Court of Appeal of New Brunswick in Streatch v R , 2019 NBCA 68 discussed what is often referred to as the frailties of in-dock identification. Mr. Ricard’s identification of Mr. Baker in the courtroom as the assailant is of negligible weight accordingly. [ 20 ] For general principles related to eyewitness identification, a number of factors as guidance have been set out in the case law. To that end, the Court of Appeal of New Brunswick re affirmed these in the case of Arseneault v R, 2016 NBCA 47 at paragraph 13 . A

summary of these factors quoted are: • Whether the person identified was a stranger. • The circumstances surrounding the identification • The pre-trial identification process; and • The existence of other evidence tending to confirm the identification.

Within each of these headings, I will have regard to certain sub-factors, identified in a number of other cases…. • Whether a distinguishing feature was absent from the identification. • Whether the opportunity to observe was a fleeting glimpse, • The use of a show-up and suggestion that the suspect is in custody, • inconsistency with descriptions provided by other witnesses, • intervening events that may contaminate the witness’s identification, such as collusion, • The fairness of the lineup array in its construction, • The use of a photo array rather than a sequential showing is preferable as it tends to negate comparison bias, • Whether the case involved cross-racial identification,

• In dock identification is to be given negligible, if any weight, • The instructions followed the recommendations of the Sophonow Inquiry • Whether the case was tried with a jury or judge alone [ 21 ] Both Mr. McCullough and Mr. Ricard gave, in my view, credible and truthful accounts of the events that they witnessed the morning of December 28, 2020. Their respective recollection was thorough and non-equivocal.

While eyewitness testimony has its limits as alluded previously, both described the assailant independently in a similar manner as it pertains to physical attributes and characteristics (dark colour of clothing, body size and height, tattoo on the eye, general description of the vehicle involved). Their testimony of the offences on the salient points are consistent even with some slight divergence on some aspects (bandana covering face versus the left arm covering face).

It is worth nothing that this is in the first months of the covid 19 pandemic. [ 22 ] With respect to the testimony of Trevor Firth and Ross Norris, I note that both had selective memory and cherry-picked explanations that supported Mr. Baker. In Mr. Norris’s case particularly, he attempted to backtrack what he had earlier declared to police when he implicated Mr. Baker. I find their omissions on certain important aspects to be intentional and their lack of recollection not credible. I do not believe that either Mr. Firth or Mr.

Ross was candid when they could not remember what happened on the occasion in question. Mr. Ross’s assertion that he owned a taser instead of Mr. Baker is also not credible. [ 23 ] In R v Villaroman , 2016 SCC 33 , the Supreme Court of Canada reminds us that reasonable inference drawn from circumstantial evidence should be considered in the context of all the evidence. In the present instance, I conclude that no other reasonable inference can be drawn from the evidence of Mr. Firth and Mr. Ross that they were in fact with Mr.

Baker on the relevant date and time and witnessed the altercation and use of a taser by Mr. Baker on an individual in the parking lot at the Salisbury Big Stop rear parking lot. [ 24 ] Based on my assessment of the whole of the evidence, I am satisfied that the Crown has met its burden of proving beyond a reasonable doubt all of the essential elements of the offences that are before this court. I therefore find Janson Bryan Baker guilty of assault with a weapon being a taser upon Malcolm McCullough contrary to

section 267 (

a) of the Code , of possession of a weapon being a taser for the purpose dangerous to the public peace contrary to subsection 88(2) (

b) of the Code and of possession of a prohibited weapon while banned by reason of an order issued by Judge Denise A. LeBlanc on June 22, 2016, contrary to

section 117.01(1) of the Code . DATED at Moncton, New Brunswick, this 18 th day of May 2022. ____________________________________________________________________ Anne M Richard Judge of the Provincial Court of New Brunswick